Volume 40 — Pennsylvania State Reports

<p>Executory Agreement to transfer Ghose in Action. — Effect of on owner- ' ship. — Action for Conspiracy. — Evidence of Fraud and Complicity necessary to sustain. — Declaration of Wife not evidence against Husband.</p> <p>A., entitled to certain post-office warrants for carrying the United States mails, which fell due quarterly, agreed for a valuable consideration, that he' would transfer them to B. for collection, stipulating that he should also pay out of the proceeds certain notes on which C. was surety. The warrants first falling due were allowed to go to B., but the warrants for two following quarters, were received by A., who paid a portion of the proceeds to C., a portion to D., another of his sureties, and retained the balance. In an action of conspiracy brought by B. against A., C., and D., for corruptly and fraudriiently conspiring to obtain the drafts and withhold the proceeds from him, knowing them to be his property, Held,</p> <p>. 1. That the engagement by A., that he would assign and endorse the drafts as they were received to B. for collection, amounted only to a promise on A.’s part, and that by the agreement the ownership.of the warrants and drafts did not vest in B., for at the time it was made they had no existence, and the service for which they were given had not been performed.</p> <p>2. That where the evidence failed to sustain the averments in the declaration as to the ownership of the drafts and the appropriation of the proceeds, knowing them to be the plaintiff’s, or to establish any complicity on the part of 0., one of the defendants, it was error in the court to refuse to charge the jury, that they were bound to render a verdict of not guilty as to him.</p> <p>3. That any admissions of the co-defendants as to O.'s declarations in regard to the time when he received the money from A., were not evidence against 0., if made after the alleged common design to defraud the plaintiff had been accomplished; nor, if the alleged declarations had been made in furtherance of a common purpose, were they admissible against 0. until his connection with that purpose had been shown aliunde.</p> <p>4. That even if 0. had known of A.’s agreement with the plaintiff, when he received part of the proceeds of the drafts in payment of his debt — the drafts not being the property of the plain tiff but only promised to be endorsed to him for collection — his act was not illegal. If a creditor agree to receive money which his debtor has previously promised to another, it is not a conspiracy, and his receipt of the money when paid, will not render him liable to respond in damages to the other creditor, though he knew of the promise which the debtor had made.</p> <p>5. That telegraph despatches from the wife of one of the defendants, neither written nor sent by either of them, were not admissible as evidence against them; for, as the declarations of the wife, they could not affect even her husband.</p>

This was an appeal by Ann E. Bedford, from the decree of the court below, directing John Gr. Offner, executor of the last will .®f Mary Dickson, to pay over without security a legacy bequeathed by said will to Mary Josephine Hooker.

' This was an appeal by John P. Mast, guardian of the minor children of Sarah Ann Good, deceased, from the decree of the court below on the account of ’Owen B. Good, the husband and administrator of deceased.

<p>Estate tail created by Will. — Children, when a'word of Limitation.— Failure of Issue, Definite and Indefinite. — Testamentary Trusts.</p> <p>1. A testator by will, directed his executors to account for and pay over half-yearly to his three daughters, “ and to each of them during their natural lives, the income or profit arising out of each of their share of the residue, and after the death of either, then to descend and go to the child, and if children, share and share alike; should however either of my daughters die, and leave no lawful issue, then such share or portion is to fall back again to the residue, and form a part of the same.” Held., that the daughters took an estate tail in the residue of the testator’s estate, which, under the Act of April 27th 1855, became an estate in fee simple.</p> <p>2. Whenever, in the devise of a remainder to the “ child” or “ children” of the first taker, 'it clearly appears that those words are used in the sense of “ issue” or “ heirs of the body,” they are to be treated as words of limitation, describing lineal succession to an entail, and not as words of purchase in their usual sense.</p> <p>3. The devise being to the daughters for life, with remainder to their children, the gift would lapse in default of issue, for the testator had defined the word child as meaning issue, and the legal consequence of a lapse in default of issue must follow.</p> <p>4. There was no such trust executed by the will, as would prevent the operation of the rule, that an estate for life with remainder to the issue of the first devisee, is an estate tail in law.</p>

<p>Error to the Common Pleas of York county.</p> <p>This was a scire facias to November Term 1860, in the name of the Commonwealth, for the use of Lucinda Jay, wife of Charles E. Jay, against Henry Bayler, on a recognisance entered into by him in the Orphans’ Court of said county, with surety as heir at law of Jacob Bayler, deceased, to pay to the other heirs of the decedent their respective shares out of a certain portion of the real estate late of deceased.</p> <p>The case was this:—</p> <p>On the 30th day of August 1855, on the application of Charles E. Jay, husband of Lucinda Jay, who was a daughter of Jacob Bayler, the Court of Common Pleas of York county issued a commission to inquire into the lunacy of Jacob Bayler, who was then confined in the State Lunatic Asylum at Harrisburg, under which it was found that he was a lunatic and had no lucid intervals, and that ho was seised of certain real estate, and possessed of certain personal estate. The inquisition was reported to the Court of Common Pleas, and confirmed on the 9th day of November 1855.</p> <p>Jacob Bayler remained in the same condition up to the time of his death, which took place on the 7th day of July 1857. Henry Bayler, who was -a son of Jacob Bayler, was appointed committee of his father. On the 1st day of July 1857, Charles E. Jay and his wife Lucinda executed a paper of that date, which they acknowledged on the 1st day of July 1857, by which —in consideration of one dollar, and for the purpose of securing to Henry Bayler the payment of Charles E. Jay’s indebtedness to him, amounting to $1487, with interest from that date — they granted, bargained, and sold to Henry Bayler, his heirs and assigns, “ all the estate, right, title, and interest, in law or 'equity, to which said Lucinda will become entitled on the death of her father, Jacob Bayler, of York, Pennsylvania, in his estate, real, personal, and mixed, by will, descent, or otherwise, &c.” The conveyance contained the joint and several covenant of the ■grantors to stand seised of the estate granted, to the use of Henry Bayler, and for further assurances and conveyances of the same. The paper was acknowledged by Mrs. Jay and her husband — separately by her — and it was duly recorded on the ■2d day of July 1857.</p> <p>After the death of Jacob Bayler, proceedings in partition in .the Orphans’ Court were duly had in regard to his real estate, No. 1 of which was valued at $4600, and accepted by Henry Bayler, who entered into a recognisance, with surety, to pay to the widow her interest annually, and to the other heirs their shares of the amount of the valuation. The share of Mrs. Jay, after deducting expenses, was $1003.11, payable on the 6th day of November 1858, with interest from the 6th day of November 1857, when the recognisance was entered into, and the further sum of $501.55 at the widow’s death. The widow died on the 11th day of June 1859. This suit was brought on the above-mentioned recognisance. The pleas were payment, payment with leave, and set-off.</p> <p>On the trial, after the plaintiff had given in evidence the record of the recognisance in the Orphans’ Court, and the date of the death of the widow, the defendant gave in evidence the whole record of the proceedings in lunacy, evidence that Jacob Bayler remained without lucid intervals until his death, that he died July 7th 1857, and then gave in evidence the conveyance above referred to.</p> <p>The plaintiff thereupon offered to prove that so much of the certificate of the commissioner as alleges that Lucinda Jay was “separate and apart from her husband by me examined,” is false and untrue, and that Henry Bayler knew it; that she was not examined separate and apart from her husband, but in the same room with her husband, and in his presence and hearing, and in the presence and hearing of said Henry Bayler, the grantee in said alleged mortgage, who was also present in the room; and that said acknowledgment is fraudulent as to her rights, in representing that she was examined separate from her husband, when in truth and in fact she was not, and the grantee knew it.</p> <p>This offer was objected to as incompetent to contradict the certificate of the commissioner, and because the only evidence admissible in contradiction of such certificate is evidence of fraud or imposition. The court admitted the evidence and sealed a bill of exceptions.</p> <p>The court was requested by defendant to charge the jury:—</p> <p>1. That a married woman can execute a valid mortgage of her lands, or of any interest in them, present or expectant, to secure the payment of her husband’s debts.</p> <p>2. That the certificate of the commissioner before whom the acknowledgment of the mortgage was taken, in the absence of any fraud or imposition, is conclusive as to the fact of separate acknowledgment, and the testimony of Mr. Shipley on this subject is to be disregarded.</p> <p>3. That the words “grant, bargain, and sell,” constitute an implied warranty under the Act of Assembly, and such a warranty as a married woman is bound by, as far as relates to the estate or interest conveyed; and if the acknowledgment is taken according to the provisions of the Act of Assembly, she is estopped from claiming against said deed, and the mortgage given in evidence, in this case, is a defence to the extent of its amount.</p> <p>4. That a married woman, by deed of conveyance executed as required by the Acts of Assembly, may bind her interest in her lands by covenant to stand seised to the use of the grantee, and also by covenant for further assurance or conveyance, if required.</p> <p>Under the instructions of the court below (Fisher, P. J.), there was a verdict and judgment in favour of the plaintiff for $1749.79. "Whereupon the defendant sued out this writ, and assigned here as cause for reversal the following matters, viz.:—</p> <p>1. The court erred in charging the jury, that Mrs. Jay could not make a mortgage which would encumber the real estate which she expected to inherit from her father at his death.</p> <p>2. That she could not enter into a valid covenant to stand seised of the estate to the use of the mortgagee, or for further assurance of the premises to the grantee.</p> <p>3. That-the defendant could not set off the amount of the mortgage'against the plaintiff’s claim.</p> <p>4. In admitting evidence to contradict the commissioner’s certificate of the separate acknowledgment of the mortgage by Mrs. Jay, in the absence of proof, offer of proof, or even allegation of fraud or imposition.</p> <p>5. In saying, in answer to the defendant’s third point, that "Mrs. Jay was not estopped from denying the implied warranty of the words “grant, bargain, and sell.”</p>

<p>Construction of Agreement for Partition of the “ Cornwall Estates.”— Trespass by Lessee of Joint Tenant for Injury done by a Co-tenant of Plaintiff’s Lessor.</p> <p>Parties owning lands jointly on which were valuable ore-hanks, agreed in 1786 to a partition into three parts, to be “ allotted with regard to quantity and quality,” and subsequently in 1787 agreed, that the ore-banks should remain undivided and held in common, the parties interested to have certain portions, for which purpose an accurate survey of the ore banks and hills was to be made, if not already done; neither party to “interfere with either of the others at any mine-hill opened or occupied for the purpose of raising iron ore.” To this was added a supplemental agreement, which provided that if the veins of ore should extend beyond a survey lately made by Thomas Ciarle, the parties, their heirs and assigns, should have free ingress, &c., to and from said hills, free liberty to dig and carry away ore that might be found beyond said surrey, without doing damage to the iron-works or plantations. Under these agreements partition was made of all the estates except the mine-hills, which were supposed to be included within the Clark survey.</p> <p>In an action of trespass by the tenant of two of the joint owners, against certain others of the owners, for taking and carrying away a quantity of copper ore, which he had mined from the base of one of the hills outside of the Clark survey as relocated by one Weidle, it was held,</p> <p>1. That under the agreement of August 30th 1787, the whole of the mine hills was exempted from partition and was to he held in common. That either of the parties had the right to take ore within the natural boundaries of the three mine-hills, not interfering with openings made by either of the others, and without doing any material damage to the iron-works or plantations ; and that it was error in the court below to instruct the jury, that all of the mine-hills, without the lines of the Clark survey, passed under the amicable partition of August 1787, and were allotted in severalty to the parties respectively.</p> <p>2. That the alleged Clark survey of the mine-hills, not produced at any time on the trial of the titles involved in it, not satisfactorily proved to have been adopted by the parties to the original agreements, and dependent upon traditional knowledge by which it had been relocated by surveyor Weidle many years after it had been made, must he disregarded, because it was not a stable foundation upon which the titles of the parties could safely rest; else the titles would depend upon whether or not the jury would find the Clark survey, as a question of fact; which, according to the accidents of the trial, might be found by one jury, and not found by the next jury to whom it should be submitted.</p> <p>3. That the Weidle survey being hut a relocation of the Clark survey must be set aside with it: and, therefore, the question cannot arise as to whether the plaintiff had or had not the right to mine outside of the Weidle lines.</p> <p>4. That the Clark and Weidle surveys being disregarded, there could be no question as to the right of plaintiff or his lessors to take out copper ore from the mine-hills, though iron ore only was referred to and named by the parties in the original agreements ; for they owned the hills and all the ores they contained, as an estate in common before the agreements were made, and if iron ore only was referred to therein, the property in the other ores remained unchanged.</p> <p>5: That where the ore had boon mined by the plaintiff under a written lease, for a term nofc then expired, executed in behalf of his lessor, the question whether his tenancy was from year to year or at will could not arise: for, if their agent had authority to execute the lease to plaintiff, or if his authority being defective the principal had ratified it, of which there was evidence, then the plaintiff was entitled to recover against the defendant, who, as tenant in common with plaintiff’s lessor, had no right to seize the ore mined by plaintiff as their tenant: but that if he had no lease or license from them, he was not entitled to damages as against Coleman.</p> <p>6. That the interest of C. B. Grubb, who testified on the part of defendant against the objection of the plaintiff, that he (Grubb) was not aware, when on the mine-hills where the plaintiff was mining at the time, that he claimed to do so under authority from him, was so balanced that it was not error to admit him as a witness.</p>

<p> Evidence in Action by Landowner, to recover Damages for Lands taken and occupied by Railroad Company. </p> <p>1. On the trial of an appeal from the award of damages by appraisers for land taken by a railroad company, in the construction of their road, evidence of the price paid, or amount received for land in the neighbourhood, in particular instances, is inadmissible; the only proper test is the opinion of witnesses as to the value of the land taken, in view of its location and productiveness, its market value, or the general selling price of land in the neighbourhood.</p> <p>2. The jury may allow the actual damages incident to taking the road, arising from inconvenience in crossing the railroad, and interfering with crossings already established, which the plaintiff has sustained, as also from the failure or neglect of the company to construct the crossings as required by law, but not for making the crossings themselves; they were to be made by the company.</p> <p>3. It was not error to.reject evidence offered on the part of the company, to prove that the plaintiff had offered to claim no damages, if the company would locate the road where he wished it, and that when called on, he declined to designate the location he desired; for it was only a proposition, not accepted by the company at the time, and not binding upon the plaintiff afterwards.</p>

This was an appeal by George Miller from the decree of the Orphans’ Court, distributing the fund in the hands of George M. Miller, Joseph M. Miller, and Joseph Merkel, administrators with the will annexed of Joseph Miller, deceased. Joseph Miller died September 22d 1857, leaving nine children, owning real and personal property, having made a will, the provisions of which have no relation to this appeal.

This was a scire facias sur mechanic’s lien, by Robert Wilson and George W. Wilson, partners, doing business as R. Wilson & Son, against Jacob Leiby, as owner, and Isaac Blizzard, contractor. An appearance was entered for Leiby, but judgment for default of appearance was entered against Blizzard, the contractor, who, it seems, was not served.

• This was an appeal hy the devisees of Susan Hassler, from the decree of the court below, dismissing a bill in equity filed by her against Daniel L. Bitting. • : The bill of complainant was filed May 14th 1857, and set forth, that a certain house and lot of ground, situate in Fourth street, in the city, of Reading, was conveyed by deed, dated September 26th 1833, from William Weimer and wife, to Daniel L. Bitting, the respondent in said bill; that said house and lot was…

<p>Error to the Common Pleas of Bedford county.</p> <p>This was an action of debt brought November 1st 1859, in the name of the Commonwealth for the use of James C. McLanahan and wife, John Bell and wife, L. W. Smith and wife, and A. L. Russell and wife, against Andrew J. Sniyely, on his official recognisance as sheriff of Bedford county.</p> <p>Tlie case was this : John King died in Bedford county, leaving ten children, of whom the plaintiffs, joined as above with their husbands, were four. He left real estate of considerable value, part of which he held in common with Dr. Swope.</p> <p>Under proceedings in partition, an order for the sale of a portion of this real estate was directed to the defendant, who was then the sheriff of the county. In May 1850, he made sundry sales, which were all duly confirmed, the proceeds collected and paid over by him, except for a portion of the land sold by him to John King, one of the heirs of deceased.</p> <p>The sale was made on three payments, viz., the hand-money payable November 30th 1850, the second instalment payable November 30th 1851, and the last on the 30th of November 1852. The hand-money was not paid by John King. For the other payments the sheriff took judgment-notes in his own name, which he entered up against him. The deed to King was acknowledged but not delivered.</p> <p>On the 30th of November 1850, Snively petitioned the court for a distribution of the hand-money made on these sales; whereupon an auditor was appointed, who made a report, distributing not only the hand-money, but also the amount of the notes, falling due November 30th 1851 and 1852, which report was confirmed February 11th 1851. On the 19th of November, Snively’s term of office expired. On the 11th of March 1854, he took a judgment-note from John King, with security for the amount of the hand-money, also in his own name, which was duly entered. On the 28th of September 1855, he released the lien of the judgment which he had taken for the hand-money, as to certain lands which had been sold by defendant therein to E. Foster.</p> <p>’■ The judgments payable in 1851 and 1852 were not revived until after more judgments had been entered against John King than he could pay. But they were revived to March Term 1858, in the name of Snively, who still retained the bonds, as also the deeds which had been acknowledged to King. The proceeds of the sale of John King’s property were sufficient to pay all the heirs in full except Mrs. McLanahan, but, inasmuch as in the settlement of other portions of the estate of the elder King, his son William R. King had been overpaid, he assigned to the other heirs his portion of the proceeds of the sale .to his brother John. On the 14th of February 1859, Snively, without their knowledge or consent, assigned to the.several heirs their respective shares of the judgment-notes taken by him from John, upon which executions were sued out, and his estate and effects exhausted. Upon distribution thereof the judgment for the hand-money was fully paid -and satisfied, but those for the payments due in 1851 and 1852 were not reached.</p> <p>This suit was then brought on the official recognisance of the defendant to recover the share of Mrs. McLanahan, as heir of John King, deceased, and the interest of all the plaintiffs by virtue of the transfer from William R. King above-mentioned.</p> <p>• On the trial the following points were presented by the counsel for the plaintiff and defendant, on which the instruction of the court below was requested:—</p> <p>Plaintiffs’ points.</p> <p>1. That the money in the hands of the sheriff, arising out of the partition, having been decreed to the plaintiffs, the sheriff is bound to show affirmatively that he did pay the same according to the decree.</p> <p>2. That, having entered up the securities which he held for the money in his own name, without any offer to assign them, and exercised the whole control over the same up to the time and until after the lien was lost, his assignment of the securities then is no payment under the decree of the court, unless he proves that it was done at the request of the plaintiffs and expressly agreed to be accepted by them in lieu of their claim and with the intention of releasing the sheriff from all responsibility.</p> <p>3. That, although six years have elapsed since the plaintiffs had the right to demand this money from the sheriff, no presumption arises that the decree was complied with and the money paid, but-the decree stands as a judgment of this court, from which the sheriff cannot be released except upon proof of absolute payment. .</p> <p>4. That the sheriff, by delivering his deeds to John and Thomas King, or their vendee, and thereby yielding an absolute security for the purchase-money, although the lien of judgments had expired,-made himself responsible to the plaintiffs for the amount so- lost by his breach of the -trust reposed in him.</p> <p>5. That the money and securities, which were decreed by the court to be paid to the heirs of John King, having come into the hands of A. J. Snively, sheriff, while acting as sheriff, his liability and duty in respect to their proper payment did not cease with the expiration of his term of office.</p> <p>6. That the original liability of said A. J. Snively having accrued-while in office, all subsequent - acts, tending either to release or continue that liability, relate back to the original transaction; and, if - he is clearly in fault, he is liable on his recognisance, as for breach of official duty.</p> <p>Defendant’s points;</p> <p>1. If the jury believe that the defendant took from John King judgment notes for the purchase-money of the real estate, and entered them as liens upon the same, that under the Act of Assembly in relation to partitions, such notes so entered were a substitute for the money, and it was the business of said parties to see to their collection.</p> <p>2. That all the evidence in this case does not show any such omission or violation of duty on the part of the then sheriff (now defendant) as will render him liable in this action on his recognisance as sheriff.</p> <p>3. That,-the auditor’s report having been confirmed February 17th 1851, and this suit’not having been brought within seven years from that date, there can be no.recovery by plaintiffs.</p> <p>4. That, if the jury believe that plaintiffs accepted the transfer by sheriff Snively entered on the notes, 14th February 1859, in payment of their several shares in the land sold, then they cannot recover in this action.</p> <p>5. That the fact that these plaintiffs accepted all those portions of the judgment given for hand-money, issued executions thereon, and received the money from the same, raises a fair presumption that they also accepted the transfer of the other 'judgment, such transfers having been made at the same time.</p> <p>6. That the fact that these plaintiffs issued an execution on the transfers made to them on the 1st of April 1859, after the transaction of 14th February 1859, as proved by Mr. Russell, raises a strong presumption that they accepted such transfers in payment of their shares in the land sold.</p> <p>7. That these plaintiffs, upon these very judgments, having aided in selling the real estate of John King, and having participated in the distribution of the proceeds arising therefrom, are estopped from calling upon this defendant for the balance not realized by said sales.</p> <p>The court directed the jury to return a verdict for the plaintiffs.</p> <p>There was a verdict and judgment accordingly, whereupon the defendant sued out this writ, and exhibited here the following specifications of error:—</p> <p>1. The court erred in overruling the first point submitted by defendant.</p> <p>2. The court erred in taking the case from the jury and directing a verdict for plaintiff.</p> <p>3. The court erred in refusing to affirm the third, fourth, fifth, sixth, and seventh points of defendant.</p>

<p>Tenancy by the Curtesy, Seisin necessary to create.— Construction of Will. — Life Estate in Land not created by Bequest of Rights and Privileges in it.</p> <p>1. In Pennsylvania a surviving husband is entitled to curtesy of land of his deceased wife, though she had no actual possession, but only a potential seisin during her life. If she had possession by a tenant for years, or only the right to present possession, it is sufficient.</p> <p>2. A testator by will provided that his widow, during her life, should live upon the homestead farm, upon which she was to have certain rights and privileges; as, a portion of the dwelling-house, one-half of the garden, one-half of the share of the grain coming from the tenant, pasture in summer and hay in winter for her cow and horses, firewood, &e. lie then made a distribution of his whole estate, and after making a few legacies and bequests, gave to each of his two daughters, who were both married, the “ one-half part of his real and personal estate for the use and benefit of her legal heirsafterwards, and before the death of the widow, one of the daughters, the wife of B., died, and her husband claimed his curtesy as to one-half of the farm. In an action of ejectment, brought by him, it was held, that the widow had not an estate for life in the homestead farm, but only certain rights and privileges in it.</p> <p>That, subject to the provisions in favour of the widow, it descended to the two daughters at the death of the testator, the wife of B. taking an estate in fee simple in one undivided moiety of the farm, in which hernusband was entitled to an estate by curtesy at her death.</p>

This Ayas an appeal by Daniel B. Kutz and Sarah his Ayife, in right of said Sarah, from the decree of the court, distributing the fund in the hands of J. Daniel Wanner, assignee of William Heidenreich and Daniel B. Kutz.

This was an action on the case brought January 9th 1860, by Rebecca Garman, widow of Jacob Garman, against Jacob Einlc, who was a public-house keeper, to recover damages for having caused the death of her husband, by unlawfully furnishing him with intoxicating liquors.

<p> Contract to pay the Debt of Another, when valid. </p> <p>1. A firm sold out their partnership effects to another, who agreed verbally to pay the firm debts. One of the firm creditors sued the purchaser for his debt, relying on the contract of sale, without showing that he was a party to it. Held, that he could not recover, for the agreement upon which the action was brought was not in writing and signed by the party to be charged therewith, as required by the Act 26th April 1855.</p> <p>2. Though such a contract is valid between the immediate parties to it, it is void as a contract in favour of the creditors of the parties, unless they, as a part of the arrangement, give up their original claims and accept the new contract instead. Without this it is void, when expressly made to the creditors, and therefore it cannot be implied as made to them. While the old debt remains, the new contract cannot be a substituted, but is only a collateral one —a promise to pay another’s debt, which is forbidden by the statute, as a causo of action.</p>

This was an appeal by Jacob Minter, for himself anti as agent for the children of Martin Minter, who was a brother of Baltzer G. Minter, deceased, and certain other legatees of said Baltzer G. Minter, from the decree of the Orphans’ Court on the account of the executors of the last will of said deceased.

This was an appeal by Henry M. Brenneman and others from the decree of the Orphans’ Court, distributing the personal estate of John Bossier, deceased. John Bossier died on the 28th of February 1859, intestate and without issue, but leaving a widow and collateral kindred, viz., the children and grandchildren of deceased uncles and aunts, or, in other words, first and second cousins; and the questions raised on the distribution of the personal estate of' deceased were: — 1.

<p>Liability of Stockholder for Debts of Manufacturing Corporation.-— Joinder of Defendants. — Defence to the Action.</p> <p>1. The Act of April 20th 1853, supplementary to the Act of April 7th 1849, entitled an “ Act to encourage Manufacturing Operations in this Common' wealth,” renders the stockholders in all companies incorporated in pursuance of its provisions, or under the Act of 1849 and its supplements, liable for all debts contracted while they are stockholders, although they have paid up the whole of their stock.</p> <p>2. Though the corporation is the principal debtor, and the liability of the stockholders is only secondary and collateral, yet the form of the remedy and the character of the right, under the Acts of Assembly, allow the use of separate actions against the primary and secondary debtors.</p> <p>3. In an action against stockholders, brought to enforce such liability, the plaintiff may join the corporation, even though he has previously obtained a judgment against it, for a portion of the debt sued for.</p> <p>4. It is not a good plea in bar to an action against the stockholders, that the corporation had not paid the bonus of one-half per cent, on the amount of the original capital stock, as required by the state: the proviso to the Act of April 20th 1853, is not properly a proviso, but an additional law.</p>

<p>' Error to the Common Pleas of Dauphin county.</p> <p>This was an application in the name of the Commonwealth ex relatione The City of Harrisburg, by the common council thereof, for a mandamus against William II. Kepner, mayor of said city, commanding him to sign certain coupon bonds, or certificates of loan for $5000, issued by the city of Harrisburg in favour of John Reigel, for money loaned for the use of the city.</p> <p>The petition was filed October 29th 1860, and a rule granted on the defendant to show cause on or before the first day of the next term, why a mandamus should not issue against him.</p> <p>The petition set forth in substance, that under the Act of Incorporation, the common council of the city of Harrisburg, on the 8th of September 1860, passed a preamble and resolution (of which the mayor had notice), authorizing and directing a loan of $5000 with John Reigel, of Cumberland county, on the faith and credit, and for the use of the city, for the purpose of redeeming so much of the permanent debt of the borough of Harrisburg, as was due and payable to said Reigel; and directing the certificates of the old debt to be cancelled. That they had directed the issue of coupon bonds to be used for this purpose — that'the said loan was negotiated, and coupon bonds, or certificates prepared in the sum of $500 each, payable ten years after date, with interest at,£¡ix per cent, clear of state tax, which were duly signed by A. W. Watson, City Treasurer. That the said Kepner had been, before the passage of said ordinance, duly elected and sworn into office as mayor of said city, and was, at the time of the filing of the petition, bound to discharge all the duties of the office of mayor according to law — and under the 27th section of the Act of Incorporation, was legally hound and required to sign said bonds or certificates of loan. That they were presented to him for signature with the seal of the corporation attached, with a certified copy of the resolution under which they were issued; but that he had refused to sign them, whereby the city was prevented from making such financial arrangements as were necessary to maintain her credit, &c.</p> <p>To this an answer was filed by the respondent, admitting the incorporation of the city and his official position as mayor, but denying the several averments of the bill, and especially denying that the common council of the said city have any right, power, or authority vested in them by the provisions of' the aforesaid Act of Assembly, to call upon, require, or compel him to sign bonds or certificates of loan issued or attempted to be issued by the said common council upon the faith and credit of the said city, thereby creating or intending to create a permanent debt upon the property and industry of the citizens of the said city, which, in the exercise of a sound discretion on his 'part, and in the discharge of his official duties as mayor of the said city, he believed to be improper, unnecessary, or likely to become oppressive and burdensome to the tax-paying inhabitants of the said city; and he further denied that the affixing of his signature to such bonds or certificates of loan is to be regarded, under the provisions of the said Act of Assembly, as a mere ministerial act or duty, which he was bound to perform upon the mere application or resolution of the common council of the said city; and further denied that the common council of the said city have any right, power, or authority to institute legal proceedings against him, as mayor of the said city, in the mode and manner herein practised and adopted, for any supposed or alleged official neglect or refusal on his part, as such mayor,' to enforce, comply with, and carry out the by-laws, ordinances, regulations, or resolutions of the said common council, not authorized by the provisions of the said Act of Assembly, and which have not been passed, ordained, established, published, and recorded in compliance with the provisions of the 9th and 10th sections of the said Act of Assembly.</p> <p>To this answer the plaintiff demurred generally, and the respondent joined in the demurrer. On hearing, the court below delivered an opinion which would have resulted in a judgment for defendant on the demurrer, leaving the relators to their remedy by action; but, permitted the withdrawal of the demurrer, and that portion of the answer traversed by the relator, or an amendment by the respondent as they might see proper, for the reason that a general judgment on the demurrer would not settle the controversy.</p> <p>On the 25th of March 1861, the counsel for the complainant filed the following motion:—</p> <p>“At the instance of the relator, and by permission of the court, the demurrer filed by the relator in the above stated case so far as it relates to the first point in the answer or return of him, the said respondent is hereby withdrawn, and the following replication by way of traverse upon the first point in said answer or return of the said respondent to the alternative writ of mandamus in the above stated case is now filed, to wit:—</p> <p>“ And the said relator says that as to the first point of the answer or return of him, the said respondent, wherein ‘ he further answers and says that the said common council did not, under the powers and authorities vested in the said common council by the various provisions of the aforesaid Act of Assembly, and in fulfilment of and compliance with the said provisions, on the 8th day of September 1860, pass a preamble and resolution authorizing and directing a loan to be made to the amount of five thousand dollars, with one John Reigel, of Mechanicsburg, in the county of Cumberland, which was to be effected on the faith and credit of the said city of Harrisburg, and for the use of said city for the purpose of redeeming so much of the permanent debt of the old borough of Harrisburg, held by the said John Reigel, which was then due and payable.’ It is not true and correct as therein averred, but the relator says the said common council did pass said preamble and resolution in manner and form as the said relator hath stated and referred to in the said alternative writ of mandamus and for the purpose and use therein specified, and that so much of the answer or return of him, the said respondent, as above quoted, which denied the passage of said preamble and resolution by the common council, is not correct and true in point of fact as therein alleged. And this the said relator prays may be inquired of by the country.”</p> <p>Whereupon the following order was made: — And now, to wit, March 25th 1861, on motion of Mr. Briggs, attorney for the Commonwealth, the demurrer in this case withdrawn, as per his motion filed, and a traverse of a portion of the answer entered, and it is ordered by the court that the issues so formed by the traverse of the answer, he placed on the list of causes for the next term, the question of costs on the amendment reserved.</p> <p>This order was objected to by the respondent, who requested that his objection should be filed and a bill of exceptions sealed.</p> <p>On the 1st of May a jury was called in the case, who returned a verdict in favour of the plaintiff; whereupon judgment was entered by the court in favour of the Commonwealth ex rel., &c., on the issues of fact and law, and a peremptory mandamus awarded.</p> <p>The case was then removed into this court by the respondent, by whom the following errors were assigned:—</p> <p>1. The court erred in deciding “that the resolution in the present case (to wit: the resolution of the council of the 8th September 1860) did not require the approval of the mayor, and need not be published and recorded, except as all the private actions of the city council should be entered or recorded on its minutes.” That the only kind of resolution that the charter requires to be submitted to the mayor for his approval or disapproval, “ must be such a resolution as is directed to the people, and intended to regulate their conduct, not one which may merely affect their interests incidentally.”</p> <p>2. The court erred in deciding “ The two last positions assumed by the answer raise questions of law which have been fully met and overruled in the general opinion. We have said that the mayor has no control over the council in regard to borrowing money. The loans do not require his acquiescence or consent, nor need he be consulted on the subject, or the resolution to borrow money be submitted to him, published or recorded. Ilis duty in the case is merely ministerial; he possesses no judicial powers, and may be obliged by the town council, in the present form of proceeding, to affix his name to the bonds, in the same manner that the president of council could be required to attest them. It is a mere ministerial duty required by law, and which throws no responsibility on the mayor; that rests on the city council alone.”</p> <p>3. The court erred in deciding that “ The second proposition of the defendant is, that the bonds were not issued in favour of Riegel in pursuance of any by-law, ordinance, regulation, or resolution, ordained, established, published, and recorded by the common council, in obedience to the provisions of the ninth and tenth sections of the Act of Assembly. We have already said that none of the matters here interposed as an objection to signing the bonds are valid. They are not required to be issued in pursuance of a resolution published and recorded. The third proposition denies that the mayor refused to sign bonds issued by the council pursuant to the law incorporating the city. This answer we deem insufficient.” Also in deciding that “The fourth denial is predicated on the same legal principle as the second — that the ordinance or resolution under which those bonds were issued was not duly and legally passed, ordained, published, and recorded, pursuant to the Act of Assembly. This we have already decided to be defective, insufficient, and no legal answer.”</p> <p>4. The court erred in permitting the complainants to withdraw their demurrer to a part of the return of the respondent after joinder in demurrer, argument had thereon and opinion delivered; also to traverse a portion of said return, and to the directing an issue to be formed on said traverse.</p> <p>5. The court erred in rejecting the evidence offered by the respondent on the trial of the issue ordered by the said court, to wit: “ It is now proposed to prove the resolution read was never submitted to the mayor under the ninth section of the charter; that the common council do keep such a book as is required by the tenth section of the charter, and that this resolution was never recorded therein as required by that section; was never published in accordance with the provisions of that section, and that a certified copy of this resolution, under the corporate seal, was never served upon the mayor before the institution of these proceedings, though a copy of the resolution attested by the clerk, was presented with the bonds. Objected to by plaintiff’s counsel. Per Our. — We are of the opinion that no part of the evidence offered is admissible. This is simply an issue to try a particular fact, whether the resolution was passed or not, as stated in the petition and alternative writ of mandamus and responded to in the answer. Every question proposed now to be presented has been raised by the other parts of the defendant’s answer and been decided by the court on the demurrer. We cannot receive evidence outside of the issue, nor would it in our opinion be relevant or important according to the construction we have given the charter. Evidence rejected.</p>

This was an action of debt brought in tbe court below to April Term 1859 by Simon G. Hay (for use of Jacob L. Martin), Samuel Brown, Mary Brown, Valentine Hay, Jacob Biddle, and Catharine Broombaugh, heirs and legal representatives of Valentine Hay, deceased, against John G. Miles and Michael Berry, executors of Peter Shoenberger, deceased, in which,after declaration filed, the following case was agreed upon and stated for the opinion of the court:— Valentine Hay died in the…

This was a scire facias brought to April Term 1861, by Robert Warwick against Ann Glass, on a mortgage which was given under the following circumstances : — On the 9th of February, A. D. 1858, an article of agreement was entered into between Robert Warwick, Ann Warwick, and Mary Warwick of the one part, and Barnhard Glass of the other part, for a tract of land in Tuscarora township, containing ninety-eight acres.

This was an action of debt, brought January 21st 1860, in the name of the Commonwealth, for the use of George R. Frill, administrator- of the estate of Ludwig Webner, deceased, against Mathias S. Richards, on a bond which the defendant had executed as one of the sureties of Benneville Keim, assignee of Daniel De B. Keim. The bond was dated May 31st 1834, and was in the sum of $25,000.

This was an action of dower unde nihil habet, brought to April Term 1858, by Sarah Miltimore, widow of John N. Miltimore, deceased, against Ebenezer Miltimore and William De Borbon. The plaintiff 'declared for one-half of two individual thirds in a lot of ground on the corner of Fifth and Penn streets, in the city of Reading, to which defendants pleaded ne unque siesie que dower. The case was this: — John N. Miltimore and Sarah Miltimore were married in 1822.

This was an action of assumpsit, brought November 10th 1858, by John Walter and James Howard, in right of the Somerset and Conemaugh Turnpike Company, against William Dyer & Company.

<p>Testimony not excepted to is not subject to Review on Error. — Not Error to omit Instructions which are not requested. — Errors in Return of Survey, how corrected.— Calls of Survey extend it beyond, the Lines returned. — Alleged Mistake in Return, sustained by Quality of Land excluded. .</p> <p>In ejectment for a tract of land recently surveyed and patented as unimproved, and which was not within the official surveys of the land around it; where the defence was, that it was actually within the survey of the land held by the defendant, and had been held and occupied by the warrantee and his successors ever since, though not within the lines of the survey as returned, and evidence was given to show that a fence had formerly existed on the division line over the tract in dispute ; that it was good bottom land ; that the patent for the adjoining survey called for “ surveyed land,” at a Íioint where it could only refer to the land in dispute, and that the patent or the tract in which it was sold was said to be included, ealled for land held by an adjoiner at a point where it joined the land claimed in the ejectment, &c., &o. Held,</p> <p>1. That the evidence was properly admitted, and that it was competent for defendant to show a mistake in the draft of his original survey, and that the land in controversy was actually included in it.</p> <p>2. Where there were no lines upon the ground, and there was a discrepancy between the lines of the tract as returned in the survey, and the land called for as an adjoiner in the return, the calls must govern and will overrule the lines returned by courses and distances.</p> <p>3. Where the court instructed the jury, that the plaintiff’s evidence was such as would entitle him to recover, unless there was other evidence to satisfy them beyond a reasonable doubt, that the original tract was differently located on the ground, and so as to include the land in controversy, but gave no binding instruction or opinion as to the sufficiency of the defendant’s testimony for any purpose, the testimony itself is not a part of an exception by plaintiff to such a charge, as it would be, if the court below had pronounced the testimony sufficient, if believed, to defeat the plaintiff’s case, and hence is not legally brought up before the Supreme Court for review by the exception.</p> <p>4. The charge to the jury, that “if there was not clear and satisfactory evidence that the original survey on the ground included the triangle in dispute, their verdict should be for the plaintiff,” and referring to them all the facts, including the evidence as to the quality of the land in the triangle, &e., cannot be excepted to by the plaintiff, because it could not have been more favourable for him.</p> <p>5. Exception cannot be taken to the refusal or omission of the court below to charge the jury to find for the plaintiff, where there was no prayer for such instruction, nor any such point presented on the trial of the cause.</p>

<p>Appeal from the Common Pleas of Berks county.</p> <p>This was an appeal by Nelly Schall (who was the widow of Peter Lamm), from the decree of the Common Pleas, distributing the proceeds of the sheriff’s sale of real estate of Peter Gaul.</p> <p>The material facts of the case are these :—</p> <p>Peter Lamm died intestate in 1853, being the owner in fee of 247 acres of land, leaving a widow, Nelly Lamm, and issue three children, of whom Nathan D. Lamm was one. In 1854 proceedings in partition were had in the Orphans’ Court on said land, and the same was appraised at $15,559.60. On the 7th of April 1854, Nathan D. Lamm accepted the land at the valuation, it was ordered and adjudged to him by the court, and he entered into a recognisance to the other heirs for their proportional parts of the valuation-money, one-third of which was to remain charged upon the premises during the life of the widow, she to receive the interest thereof annually. On the 3d of April 1857, the other children entered satisfaction on the recognisances for their two-thirds of the valuation-money then due and payable.</p> <p>Nathan D. Lamm and wife, by deed dated and acknowledged the 3d of April 1857, recorded April 7th 1857, conveyed the said 247 acres of land to Peter Gaul, “ for and in consideration of the sum of $5186.54, charged as the widow’s dower, and the sum of $11,220.21, now paid,” and “under and subject to the dower payable as aforesaid.” The receipt at the bottom of the deed is for “the sum of $11,220.21, which, with the dower when paid, will be in full of the consideration-money therein mentioned.”</p> <p>On the same day Peter Gaul gave to Nathan D. Lamm a bond and mortgage on the land for $3000 and interest, which was recorded on the 1st of October 1858.</p> <p>On the 28th of May 1857, Peter Gaul gave to William Lauer his bond and a mortgage upon the land for the payment of $1000, with interest, which was duly recorded on the 1st of June 1857. This mortgage was the first lien upon the property after the recognisance in the Orphans’ Court.</p> <p>Judgment was recovered against Peter Gaul on the 6th of August 1858. Other judgments were afterwards recovered against him.</p> <p>A scire facias was sued out on the mortgage given to Nathan D. Lamm, and judgment recovered against Peter Gaul on the 21st of May 1859, for $3641.60, upon which a levari facias issued on the 18th of July 1859. The sheriff sold the land to Hiram S. Getz, Charles Rick, and Abraham Graeff, for $7725, “ subject to the payment of a dower of $5186.54, and arrears of interest, and mortgage of William Lauer of $1000, and interest thereon.”</p> <p>The conditions of sale were in writing, and were signed by the-defendants, who acknowledged their bid under their hands and seals, subject as above; the sheriff so returned the property sold.</p> <p>Exceptions were filed'to this sale by the purchasers, but the court, on hearing, dismissed the exceptions and confirmed the sale.</p> <p>On motion, the court permitted the sheriff to amend his return according to the facts; whereupon the sheriff returned the property sold, subject to the payment of dower of $5186.54, and arrears of interest, and a mortgage of William Lauer of $1000, and interest thereon, paying into court $7634.20. The sheriff’s deed was made subject to the same conditions. Mrs. Schall, by her counsel, moved for a rule to take out of court $702.28, arrears of interest due on her one-third part under the proceedings in partition. Similar rules were applied for by judgment-creditors, pending which George G. Barclay, Esq., was appointed by the commissioner to distribute the fund.</p> <p>In his report he distributed to Mrs. Schall $622.38, being the amount of two years’ interest due to her prior to the sheriff’s sale, and divided the balance of the fund among the subsequent judgment-creditors.</p> <p>In the same report, and on the ground that the court might hold on the authority of Tower’s Appropriation, 9 W. & S. 103, and Stackpole v. Glassford, 16 S. & R. 163, referred to in Mather v. McMichael, 1 Harris 305, that the widow must look to the land, or the purchasers who took it subject to her arrears of interest; he made a second distribution, leaving out her claim entirely, and distributing the whole fund to the lien-creditors, who were subsequent to Bauer’s mortgage.</p> <p>Exceptions were filed by judgment-creditors to the first distribution, which were sustained by the court below (Jones, P. J.), distribution No. 2 adopted, and the report confirmed absolutely. The case was then removed into this court, as above stated, where the decree of the court below was assigned for error.</p> <p>To November Term 1859, William Lauer sued out a sai. fa. against Gaul on his mortgage, against which the court permitted the sheriff’s vendees to come in and take defence. In this case the defendants contended that the sheriff’s sale extinguished the mortgage of Lauer, and that therefore he could not recover. The court below (Jones, P. J.) directed the jury to find in favour of the plaintiff, which was accordingly done. Judgment being entered thereon, the defendants sued, out a writ of error, and assigned as cause for reversal the instruction of the court below, directing a verdict for plaintiff.</p> <p>The two cases being alike in principle, were argued, considered, and decided together.</p>

<p>Bond of Indemnity. — Evidence in Action on. — Liability of Surety.</p> <p>1. Parties, plaintiffs in certain executions, indemnified a sheriff for levying upon and selling goods, alleged to belong to the defendant, which were claimed by others, who, after the sale, sued the sheriff in trespass; the plaintiffs defended the suit, but unable to succeed, fixed the amount of the recovery by compromise, part of which was paid and the balance collected from the sheriff, who then brought suit to recover the amount paid by him, against each of the sureties on the indemnity-bond, which was joint and several. Held, that as the contract of suretyship was to save the sheriff harmless, the bond was broken when judgment was recovered against him, and. that he was entitled to recover, as damages, the amount paid by him, through the failure of the sureties to comply with the conditions of their bond.</p> <p>2. The record of the suit against the sheriff was admissible in his favour in the action against the surety, even though the surety was not a party and had no notice of the suit; for it was proper evidence that the loss and. damage had happened, which he had contracted that his principals should not allow to happen.</p> <p>3. The record of the suit and judgment therein, was not conclusive evidence of the amount of damages the sheriff was entitled to recover against the sureties, as the amount might have been increased by the fault of the sheriff, for which the bond was not intended to secure him.</p>

■ This was an action of assumpsit brought by Alfred J. Fisher, administrator of Edward Burd, deceased, who was a son of Joseph Burd, against Hugh Craig, executor of the last will and testament of Edward Burd, deceased, to recover a legacy under the will of said Edward Burd, in which the following case was stated for the opinion of the court;— Edward Burd (the elder), the defendant’s testator, died in 1851, having first made his will, which was duly proved and registered in…

<p>Bills of Exchange. — Rights of Drawee who discounts Bill before Maturity.</p> <p>1. The acceptor of a bill being the principal debtor, while the drawer and endorser are but sureties, payment by the former extinguishes the debt, leaving no right of action against the latter except when the acceptance was supra protest.</p> <p>2. The acceptance of a bill is an engagement to pay it according to tenor and effect at maturity, and not before ; and a bill is only “paid” when.it is done in due course and with an intention to discharge it.</p> <p>3. The drawee of a bill may accept or pay it supra protest for the honour of the drawer or endorser, but if he discount it before maturity he stands in the position of an endorsee as against all prior parties.</p> <p>4. The discounting of a bill by the drawee, who has not accepted it, is neither “payment” nor a promise to pay according to tenor and effect, but puts him in the position of an endorsee for value, with right of action against drawer and endorser.</p>

<p>Error to the Common Pleas of Berlcs county.</p> <p>This was an action on the case brought to April Term 1858, by Charles H. Rogers, John B. Austin, and Adolph E. Borie, against Daniel Housum.</p> <p>The case was this: — On the 15th day of June 1857, Norton & Clymer drew a promissory note for the sum of $2630, payable throe months after date, to the order of Daniel Housum, at the office of discount and deposit of the Bank of Pennsylvania, at Reading. This note Daniel Housum endorsed, for the accommodation of the drawers, who had the same discounted for their own use at the said office. When this note fell due, Norton & Clymer were unable to pay it, and it was renewed by another note, dated September 17th 1857, for the same sum, drawn and endorsed by the same parties, and payable at the same place, sixty days after the date thereof. Soon after the making of this note, Thomas Allibone, the president of the Bank of Pennsylvania, made arrangements with John Welsh, agent for certain of the Philadelphia banks, by which it was agreed that the said banks should advance the sum of six hundred thousand dollars to the Bank of Pennsylvania, to sustain her credit, in consideration of which, Allibone agreed to pass to the said banks certain bills receivable as collateral security. In pursuance of this arrangement the Philadelphia banks advanced to the Bank of Pennsylvania, $504,000, on the 23d of September 1857, and $163,000 on the 24th of the same -month; and Thomas Allibone passed over into the hands of John Welsh the sum of $718,000 in bills receivable, belonging to the Bank of Pennsylvania. Among these was the note on which this suit is founded, it having been sent to Philadelphia, from the branch at Reading, by David McKnight, the cashier, at the request of the president. It was then passed by John Welsh, or by Welsh and Robbins, into the hands of the plaintiffs in this suit, who allege that they hold it as trustees of the banks who advanced the money to the Bank of Pennsylvania. Before it fell due, it was sent to the Farmers’ Bank of Reading for collection, and when it matured, was renewed November 18th 1857, by another note of the same makers and endorser, for the same sum, and payable ninety days after date, at the Farmers’ Bank of Reading. At the time of the last renewal Daniel Housum, the endorser, was not told, nor did he know, that the note had passed from the Bank of Pennsylvania, nor was he aware of that fact until the time it fell due. The printed notice that he received, showing the time when the last note matured, was to the effect that the note was at the office of discount and deposit.</p> <p>■ But he knew as early as the 6th of February 1858, that the note was held by the plaintiffs, and the fact that the branch office at Reading had ceased to do business when the note was known to him on the 18th of November 1857, when the note was renewed by him at the Farmers’ Bank of Reading.</p> <p>■ The note thus renewed fell due February 19th 1858, and was duly protested for non-payment, of which the defendant had notice. On that day he prepared to pay it partly in cash and partly by his own note, which was agreed to by the agent of the plaintiffs. Subsequently, however, he procured notes of the Pennsylvania Bank, which he tendered in payment of this claim. This action was then brought against him, and on the trial the .court below (Jones, P. J.) directed the jury to return their verdict for the plaintiffs, which was done for the amount of the note ■with interest and costs of protest. Judgment having been entered on the verdict, the defendant sued out this writ and assigned ■here for error the charge of the court below as above stated.</p>

<p> Injunction to restrain Creditor of Husband from selling Wife’s Real Estate on Execution. </p> <p>1. Under the Act of 11th April 1848 and 12th April 1850, the levy and sale of a wife’s real estate by a creditor of her husband’s, on execution against him, is contrary to law and may be restrained by injunction.</p> <p>2. In order to authorize the interference of a court of equity, a clear case of title in the wife under the Acts of 1848 and 1850, must be made out; otherwise the court will not interfere, but leave the parties to their remedy at law.</p> <p>. 3. Where the real estate of a wife was levied on by a creditor of her husband’s, and was about to be sold, it was error in the court to dismiss a bill filed by her, for a preliminary injunction to restrain the execution-creditor from selling it.</p>

<p>Plea of Statute of Limitations, when Replication unnecessary. — Fraud alleged and proven, an Answer to the Plea. — Statute runs from Discovery of Fraud.— Opinion of Witness, when Evidence. — Mental Competency proven by Opinion of Witnesses.— Corroboration of Witness by Evidence of previous Statements.</p> <p>"Where, in an action "by an executor upon notes due to his testator by the defendant, who it was alleged had fraudulently seized them after the death of the testator, the defendant pleaded the Statute of Limitations, after the commencement of the trial, and it was evident that the fraudulent seizure was the plaintiff's answer to the plea: it was held, that the want of a formal replication was not cause for reversing the judgment.</p> <p>2. Fraud is a sufficient answer to the plea of the Statute of Limitations, and if the defendant fraudulently seized the notes, he is not only estopped from setting up the statute, but it would begin to run only from the discovery of the fraud.</p> <p>3. Where the testimony of a witness for the plaintiff was assailed by witnesses on the part of the defendant, on the ground of her mental incompetency, who detailed facts and expressed opinions as to it, questions on the part of the plaintiff in cross-examination, the object of which was to draw from them an opinion as to her competency, are proper and competent.</p> <p>4. The question as to mental competency to make a contract or a will, as well as to deliver truthful testimony, depends upon the opinions of those who have observed the conduct of the party and his intellectual developments; and after facts and circumstances are sworn to as the groundwork of those opinions, they are admissible in evidence.</p> <p>5. Testimony, that a witness had previously told the same story that she swore to on the trial, is not admissible, under the rule which permits evidence of what a witness swore to on a former, trial to be given in evidence to corroborate him; but where it tended to corroborate, and at the same time to enable the jury to judge of her intellectual faculties, the admission of the evidence is not a ground for reversing the judgment.</p>

<p>Parol Title to Land, Evidence in support of. — Possession, when Notice to Lien- Creditors and subsequent Purchasers.</p> <p>1. Tbe owner of a lot of land, sold a part of it by parol to a borough, corporation in 1841, received the purchase-money, delivered possession, and the same year the borough erected a fire-engine house thereon; no deed was executed by the grantor and his wife until December 1842; before this, on the 0th September 1842 a judgment was entered against the grantor, upon which execution issued, and the whole lot, including the portion bought by the borough, was sold by the sheriff to the plaintiff in the judgment, who brought ejectment and sought upon the trial to restrict the corporation from, giving evidence of title prior to their deed. Held, that the defendants could show the commencement of their title under the parol purchase, from the date of their possession, which was in itself notice of their title, when brought to the knowledge of the plaintiff.</p> <p>2. Though the deed of record is of later date than the purchase, it is not au inconsistent title with that shown by the parol contract accompanied with possession in the grantees; it was evidence of the consummation of the sale, and, as though it were the perfecting act of a written agreement of sale, the grantee can show the commencement of his title from the date of his possession.</p> <p>3. The corporation defendant was not estopped as against the plaintiff from showing an earlier inceptive title than the deed, for the plaintiff had undisputed notice of possession in the borough from the time it was taken; therefore he was not misled by the deed, and hence is not in the position to claim the exclusion of the truth, which is the effect of an estoppel, lest it might injure him. Having notice or the means of notice, that the defendant’s title was complete in equity before the entry of his judgment against the grantor,' he cannot claim to have been misled by the deed.</p>

<p>Appear from the Common Pleas of Lancaster county.</p> <p>This was an appeal by the executors of John Hatz, deceased, from the decree of the -court below distributing the proceeds of the sheriff’s sale of the real estate of John E. Shroeder. The material facts of .this case, and the argument of the counsel concerned in the cause, are sufficiently set forth in the opinion of this court.</p>

<p>Error to the Common Pleas of Clinton county.</p> <p>This was an action of ejectment brought to February Term 1856, by Frederick Staver against James Ferguson and Daniel Betts, for 650 acres of land in Gallaugher township.</p> <p>The material facts of the case are as follows:—</p> <p>Henry Kissell and Frederick Staver were the owners, as tenants in common, of two tracts of land in Gallaugher township, Clinton county, containing about 600 acres. On the-20th of September 1859, Kissell sold to James Ferguson and Daniel Betts his undivided half of the said land for the consideration of $2000, delivered to them his deed for the same, with possession of the premises; from which possession they were ousted by Staver.</p> <p>On the 31st of July 1852, Ferguson and Betts brought an ejectment against Staver to February Term 1852, No. 75, for the undivided half part of the said land, and on the 16th of September 1852 the cause was tried and verdict was rendered for defendants. The charge was excepted to before verdict. No judgment was ever entered on the record of the suit, but an entry of judgment was made in the lien docket or index, and the jury fee paid.</p> <p>On the 30th of November 1852, another ejectment was brought by Ferguson and Betts against Staver to December Term 1852, No. 94, for the undivided half of the same land. This cause was tried, and on the 23d of December 1853, a verdict and judgment was rendered for plaintiffs. To this judgment a writ of error to the Supreme Court was taken by defendant to May Term 1854, and non pros, suffered. Another writ of error was taken to May Term 1855, and non pros, suffered.</p> <p>On the 28th of January 1856, Frederick Staver brought the present ejectment against Ferguson and Betts, for the undivided half of the same 650 acres of land.</p> <p>This cause was tried, and on the 17th December 1857, a verdict and judgment was entered for plaintiff. The cause was removed to the Supreme Court by Ferguson and Betts, and reversed. See 9 Casey 411.</p> <p>The cause came on again for trial in the court below, at May Term 1860, when the plaintiff offered in evidence the verdict in ejectment, No. 75, February Term 1852, as a bar to the defendant’s recovery in this ease, whereupon the court made the following order:—</p> <p>“Jury directed to find for plaintiff, subject to the opinion of the court on a point reserved, to be argued by counsel at the next term, at which time, if the court should change their opinion on said point reserved, judgment to be entered for the defendants non obstante veredicto, so that the case may be taken to the Supreme Court on writ of error without the necessity of resorting to a new trial.”</p> <p>The court below, on argument, delivered an elaborate opinion, directing judgment to be entered for the plaintiff on the point reserved. Whereupon the defendants sued out this writ, assigning for error the ruling of the court below, as to the admission of the record of the ejectment between the parties of February Term 1852, No. 75, and the entering of judgment for the plaintiff.</p> <p>There was another error assigned relative to the admission of an agreement between Staver and Kissel! (see 9 Casey 411), but it is not noticed in the opinion of this court.</p>

<p>After-acquired Real Estate when included in general Devise. — Act of April %th 1833 construed. — Effect of electing to take or reject Property given by Will.</p> <p>One, by -will dated in 1829, devised to his wife all the real estate of which he should die possessed: in 1847 he purchased a farm, which he held until his death, in 1850, when his widow entered into possession under the will: in 1857 she sold the farm, taking as a part of the purchase-money three judgment bonds, and the same year died, leaving a will, wherein she gave one half of the residue of her estate to her own brothers and sisters, and the children of such as were deceased, and the other half to the brothers and sisters of her deceased husband, and their children. After her death, her executors issued executions upon the judgment bonds, given for the farm sold by her, which were stayed by the court, and the defendant — the purchaser — let into a defence, upon the ground that the title was not in the widow, but in the heirs of her husband. Held,</p> <p>1. That the will of the testator, .executed in 1829, did not pass the farm purchased by him in 1847, as the 10th section of the Act of 8th April 1833, providing that real estate acquired by the testator after the date of his will shall pass by a general devise, did not apply to a will dated before its passage.</p> <p>2. But that, if the heirs of the testator, who were his brothers and sisters, and their children, and who, under the will of the wife, were entitled to one-half of all the property of which she died possessed, including the judgment bonds given for the purchase of the farm, should elect to.take under that will, their title would pass to the defendant, the purchaser, and the plaintiffs, her executors, were entitled to recover on the judgment bonds given by him, as the words of the will of the testator were sufficient to include after-acquired real estate, and his heirs could not claim both under and against her will.</p>

<p>Appeal from the Orphans’ Court of York county.</p> <p>This was an appeal by the executors of Veronica Gable from the decree of the Orphans’ Court, on the report of the auditor to whom their account was referred for distribution.</p> <p>Veronica Gable, the testatrix, died on the 9th of October 1857. Her will was proved in the register’s office of York county, on the 14th of the same month and year. The executors filed an inventory on the 27th of the said month and year, amounting to $21,208.80. On the 7th of January 1859, a citation was issued to them to settle an account. On the 24th of January 1859, they settled their first separate accounts, including nothing but personal estate actually received by them, exhibiting a balance on the account of Michael Gable of $6527.57, and on the account of Elias Tome of $6180.70. Exceptions were filed to these accounts by the legatees, certain items of credit were stricken out, and they were charged with additional interest. The accountants appealed to this court to May Term •1860, and the decree was affirmed: Gable’s Appeal and Tome’s Appeal, 12 Casey 395. An auditor was appointed to distribute the balances on their accounts corrected as above stated, before whom the legatees and parties interested were either present or represented by counsel, except one or two branches of the family who were living at a distance.</p> <p>Ann Paul, of Ohio, who claimed to be the daughter of George Gable, deceased, a brother of Frederick Gable, deceased, was also represented, but nothing was awarded to her by the auditor. Her counsel filed an exception to the report for this reason, testimony was taken on both sides, but the court confirmed the report of the auditor, without entering a decree that might preclude her from showing, if she could, a better case when the residue came to be distributed. The aggregate amount distributed by the court was $13,805.43. Beside this sum, there was and is still a large amount of money in the hands of the executors. On the 14th of December 1859, they filed their second separate accounts, which were excepted to by the legatees. On the 28th of March 1861, the auditor filed his report showing a balance in the hands of Michael Gable of $2706.56, exclusive of all disputed claims, and leaving $500 in his hands to cover expenses of litigating their recovery, and a balance in the hands of Elias Tome of $3258.13 above all disputed claims, and leaving the like sum of $500 to meet expenses of litigation.</p> <p>The following exceptions were filed by the accountants on the 16th of April 1861, and on the 29th of August 1861:—</p> <p>1. The court is respectfully requested to direct the auditor to file the evidence upon which he reports, that “the parties in interest were all present or represented by counsel,” stating who they were and by whom represented.</p> <p>3. The auditor erred in going behind the balance on the account of Michael Gable, as confirmed by the Supreme Court on the 31st of May 1860, and charging him with interest from the 21st of March 1860. And he also erred in charging him with interest on the sum of $6220.43, from the 31st of May 1860.</p> <p>4. The auditor erred, in awarding under the residuary clause of the will of the testatrix, portions of her estate to grandchildren of her deceased brothers and sisters, and of the deceased brothers and sisters of her late husband.</p> <p>The Orphans’ Court allowed the first exception, and directed the auditor to file the evidence therein mentioned.</p> <p>The other exceptions were dismissed, and the share of certain of the deceased heirs directed to be paid into court to await further orders and decrees to be made on ascertaining the number and names of their children and grandchildren.</p> <p>The ease was thereupon removed into this court by the executors, at whose instance the following errors were assigned :—</p> <p>1. The court erred in making the decree for distribution without any evidence, and without requiring any taken by the auditor to be produced as previously directed in the opinion filed.</p> <p>2. The court erred in deciding that the accountants had no right to file exceptions to the auditor’s report.</p> <p>3. The court erred in awarding under the residuary clause of testatrix’s last will and testament, portions of her estate to the grandchildren of her deceased brothers and sisters, and of the brothers and sisters of her deceased husband.</p> <p>4. The court erred in not awarding a share of testatrix’s estate to Joseph Kelley, a legatee named in her will, and one of the children of Lydia Rumcrap.</p> <p>5. The court erred in omitting from its decree the child of George Gable, deceased, and in distributing the fund without giving said child any part thereof, and in distributing the whole fund without making any provision for said child out of the fund distributed by its decree, should Ann Paul establish her claim to a legacy under testatrix’s will.</p> <p>6. The court erred in awarding generally, without specifying them, to the children of Solomon Gable, deceased, the sum of $326.11, and directing the money to be paid by the appellant into court.</p> <p>7. The court erred in ordering appellant to pay out to distributees the sums awarded to them respectively, without requiring said distributees to execute and deliver refunding bonds as required by law.</p> <p>8. The court erred in going behind the balance of the account of Michael Gable, as confirmed or ascertained by the Supreme Court, on the 31st of May 1860, and charging him with interest from the 21st of March 1860, and also in charging appellant with interest on the sum of $6220.43 from the 31st of May 1860.</p>

<p>Conditional Subscription to Railroad Companies — Defence to Action for Instalments on Stock.</p> <p>One subscribed in 1853 for twenty shares of tbe stock of the Pittsburgh and Oonnellsville Railroad Company, on the express condition that tbe company “ should locate and construct their railroad along the route contemplated by the Meyer’s Mill Plank-Road Company for their road,” paid one instalment, part of the second, but delayed the payment of the balance as the calls were made, until the company, before the road was constructed along the route mentioned, suspended operations, after which payment was refused on the ground that though the road had been located by the company, they had not constructed it, according to the condition in the subscription. In an action brought therefor by the company it was Meld,</p> <p>1. That the promise of subscription being precedent to that of construction upon the part of the company, the defendant could not insist upon performance by the railroad company while he refused performance on his part; and that the road having been located as stipulated, and completed so far as the means of the company would allow, it was a compliance with the condition, and the plaintiffs were entitled to recover.</p> <p>2. That the condition in the contract of subscription was not a condition precedent, and did not require the completion of the road before payment could be required, but only that when located and constructed it should occupy the route designated, the undertaking being, on the part of the subscriber, to pay as calls should be made by the directors, and on the part of the company to locate as stipulated and construct as fast as their means would allow.</p> <p>3. That the suspension of operations made by the directors, long after the payments upon defendant’s stock had been due, was not a defence in an action brought against him for the unpaid balance thereon.</p> <p>4. Where the company had received subscriptions on a guarantee that they would pay interest on stock “ as soon as paid,” until the road was finished, interest would not accrue until the stock was fully paid; and where but a small part of the stock had been paid for by the defendant, he could not, in a suit against him for the balance, set up the non-payment of interest on his stock by the company as a breach of condition.</p>

<p>Error to the Common Pleas of Union county.</p> <p>Tbis was an action of November 29th 1858, by Gibson North, Pliny Chase, and Asa W. North, partners doing business as North, Chase & North, against Joel Hursh, -to recover the sum of $452.80, for stoves sold and delivered to the plaintiff.</p> <p>The declaration was in the usual form for goods sold and delivered, to which the defendant pleaded non assumpsit, payment, with leave, and subsequently added the plea of “ actio non accrevit infra sex annos.”</p> <p>On the trial of the cause the plaintiffs gave in evidence the fact, that a bill of stoves was bought by the defendant August 19th 1852, and were then permitted, against the objection of the defendant, to give evidence of a custom existing among merchants engaged in the business followed by the plaintiffs, by which all bills between the 1st of July and January must be settled by one half cash, and the other half by a note on the 1st of January; and bills bought between that time and July, on the 1st of that month; and that the bills thus bought were not due until the time of settlement.</p> <p>The court below instructed the jury that they should determine from all the evidence in the case, whether the sale was made on the terms that the defendant was not to be called oil for payment until January 1st 1853; adding, “if these were the terms upon which the plaintiff sold, the statute would not be a bar.”</p> <p>There was a verdict and judgment in favour of the plaintiff for $674.24; whereupon the defendant sued out this writ, and assigned for error here the admission of the evidence of the custom as above stated, and the instruction given to the jury in regard to it.</p>

This was an appeal from the decree of the Common Pleas distributing the proceeds of the sheriff’s sale of the personal property of Ereeburger & Brother. The case was this: Cameron & Billmeyer held a judgment against Gr. W. Ereeburger for $300, entered July 15th 1859 to May Term 1859, conditioned to be void if Ereeburger would pay at maturity, a note dated July 13th 1859, drawn by Gr.

This was an attachment-execution sued out to April Term 1859, by A. J. Eessler against Josiah Fields, with notice to Mary Ellis, Furman Fields, and others, garnishees of the defendant. The case was this: — A. J. Fessler obtained a judgment on the 8d day of February 1859, for $859.51, against Josiah Fields, under which this attachment-execution was taken out, and Mary Ellis and Furman Fields, summoned as garnishees on the 7th of February 1859.

This was an action of replevin, May 6th 1854, by Ira T. Clement against A. K. Wright, for seventy-one white pine logs, valued at §560. The sheriff delivered to the plaintiff fifty-nine logs, which he found in the possession of the defendant. To a declaration in the usual form the defendant pleaded “ non cepit,” “property,” and also “property in the heirs of John Baird and others,” and on these issues the parties went to trial.

<p>Prívate Bridges, action against Canal Company for refusing to Repair.</p> <p>1. Under the Act 21st April 1858, providing for the sale of the state canals, the Wyoming Canal Company, as “the assigns” of the Sunbury and Erie Railroad Company, were bound to keep in repair a private bridge crossing the North Branch Canal, as had been done by the commonwealth, who built the bridge for the owner of the farm when the canal was made; subsequently, the Lackawanna and Bloomsburg Railroad Company, duly authorized by law, built their road on the banks of the canal whore the bridge crossed, and so altered it in height and length as to increase the cost of keeping it in repair; the bridge becoming unsafe, the canal company refused to repair, whereupon suit was brought by the owner of the farm. Held, that the canal company was not relieved from its obligation to keep the bridge in repair, by any acts of the railroad company in the location or construction of their road, and that it was error in the court below to instruct the jury, that the railroad company had by their acts released the canal company from any obligations to repair the bi’idge.</p> <p>2. The owner of the farm for whose use the bridge was built, can maintain an action against the canal company for neglecting to repair it, even though the railx-oad company might be liable to keep it up, and might also be responsible in damages to the canal company for injux'y done, requiring greater care and expense in keeping the bridge in x’epair.</p>

<p>Official Return of Survey binding after twenty-one Years, in the Absence of rebutting Facts. — Evidence to rebut derived from Galls in adjoining Surveys, and Maries upon the Ground.</p> <p>1. After the lapse of twenty-one years from the return of a survey, the ■presumption of law is, that the warrant was located as returned by the surveyor to the land office, and in the absence of rebutting facts, the official courses and distances will govern, the lines of the survey being presumed to be run as returned.</p> <p>2. This presumption may be rebutted by proof of the existence of marked lines, monuments, and other facts tending to show that the actual location on the ground was different fx-om the official courses and distances; and where younger surveys with fixed lines, call for the older as an adjoinex-, the fact is admissible, as some evidence fox- this purpose.</p> <p>3. AVhex-e the line of the older survey, called for by the younger surveys, was not actually run on the ground and located upon the line xxxarked for them, but, as the adjoining lands were unappropriated at the datepf the older survey, was supposed to be chamber work; the call for it, as an adjoinex- in the younger surveys, has no effect either to enlax-ge or contract the dimensions of the older survey. The question is one of fact for the jury, as to what was the actual location of the older survey on the ground at the time it was made.</p> <p>4. Upon a warrant granted to one William Green in 1784, a survey was made in 1789, and a patent granted for the land taken up in the following year. Hour years after, in 1793, the same deputy surveyor executed two other warrants to Adams and Gray, and in his return of the surveys, wrote the name of the Green survey as an adjoiner upon the drafts. . Between the Green survey, if run according to its official courses and distances, and the Gray survey on one side, and the Adams on another, the lines of which were marked, there was a vacancy, which in 1858 was appropriated by C., and a patent obtained from the commonwealth, for which vacancy the owner of the Green survey brought ejectment, claiming that the calls in the Gray and Adams surveys for his lines upon the south and west, returned for sixty-five years before the date of the defendant’s warrant, raised a presumption of fact that the lines of the Green survey were originally run up to the marked lines of the surveys calling for it as an adjoiner, thereby rebutting the presumption that his survey was run as returned, and entitling him to recover: Held, That, in the absence of proof to the contrary, by marked lines, monuments, or other competent evidence, the lines of the Green survey would be presumed to have been run as returned:</p> <p>That, after the return, nothing but an order of resurvey could enlarge or diminish it, and that no act of the deputy surveyor, thereafter, in locating other warrants for other parties, could have this effect:</p> <p>That the presumption contended for, that the lapse of time since the location of the junior warrants would give title up to their boundaries, had no foundation in reason nor authority in law:</p> <p>That, as the acceptance of the Green patent was decisive as to its lines and quantity, its boundaries were now as then the official courses and distances of the survey as run and returned, its location remaining unaffected and uncontrolled by the junior surveys: and,</p> <p>That the vacancy between the Green, and the Adams and Gray surveys, did exist up to the year 1858, when it was properly appropriated by the defendant, in whom, and in his heirs after his death, the title vested.</p>

<p>Error to tbe Common. Pleas of Northumberland county.</p> <p>This was an action of assumpsit, brought July 29th 1857, by Stephen Bittenbender against the Sunbury and Erie Railroad Company, in which there was a verdict and judgment in favour of the plaintiff for $7337.16. A writ of error was sued out by the defendant, and on hearing, the judgment below was reversed, and a venire de novo awarded.</p> <p>The material facts of the case were these: — By virtué of the provisions of the Act of 13th March 1847, the Philadelphia and Sunbury Railroad Company and the Sunbury and Erie Railroad Company, whose roads connect at Sunbury, by an agreement under their respective seals, dated 26th of March 1857, agreed that the Sunbury and Erie Railroad Company should run their cars and locomotive engines upon the railroad of the Philadelphia and Sunbury Railroad Company, and erect buildings upon the line thereof, for the accommodation of the cars and engines employed thereon, for the period of three, years from the 1st of April 1857, at certain rates of tolls. The Sunbury and Erie Railroad Company were to retain a specified portion of the earnings made by them upon the road of the Philadelphia and Sunbury Railroad Company, and the balance was to be disposed of according to the provisions of the 6th section of the agreement, which were as follows, viz.: “ That the Sunbury and Erie Railroad Company shall and will pay the remaining earnings of the local trade and through trade, when received by them in cash, and not required to be retained and applied by the Sunbury and Erie Railroad Company, for the purposes herein provided; and the same are hereby, by the said Philadelphia and Sunbury Railroad Company, assigned, transferred, appropriated, and shall be applied and paid in the manner following, viz.: [but without any liability in the said Sunbury and Erie Railroad Company, to see to the application of said sums of money, or any of them], the said Sunbury and Erie Railroad Company shall first pay thereout, unto Stephen Bittenbender, the sum of $7000, being the amount of indebtedness of the said Philadelphia and Sunbury Railroad Company, to him for repairs of cars, with lawful interest thereon until paid; and after payment thereof, shall next pay to Alfred R. Fiske the sum of $1800, being the amount of indebtedness of the said Philadelphia and Sunbury Railroad Company to him for services as superintendent, with lawful interest till paid; and after payment thereof, shall pay over and deliver all other sums which would, during the continuance of the contract, become due a,nd payable to the said Philadelphia and Sunbury Railroad Company, into the hands of Edward S. Wheeler,” to be applied to the payment of the interest accruing on the mortgage bonds of the said company, in the order of the dates of the mortgages. On the 81st of March 1857, the Sunbury a.nd Erie Railroad Company applied to Bittenbender to make an arrangement with him for repairing their cars and engines. Bittenbender refused to make any arrangement for this purpose until his claim against the Philadelphia and Sunbury Railroad Company, for similar services, was settled. Mr. Merrick, the President of the Sunbury and Erie Railroad Company, then informed him of the provisions of the 6th section of the agreement between the twm companies, and promised him that his claim should be paid out of the portion due or accruing to the Philadelphia and Sunbury Railroad Company as soon as sufficient for that purpose should be earned. Bittenbender then assented to the arrangement, said he was perfectly satisfied, and agreed to do the repairs for the Sunbury and Erie Railroad Company, and did do them w’hile that company ran the road. After the Sunbury and Erie Railroad Company had run the road for some time, Bittenbender believing that they had earned sufficient to pay him, sent his attorney to Philadelphia to receive payment, and the president of the company, after consulting the counsel of the company, and examining the agreement again, promised to pay Mr. Bittenbender, and said he would send his brother to make an arrangement with Mr. Bittenbender, and pay him with the notes of the company. An attachment-execution was subsequently issued out of the District Court of Philadelphia by Robert Lucas, a judgment-creditor of the Philadelphia and Sunbury Railroad Company, and served on the Sunbury and Erie Railroad Company, who then refused to pay Bittenbender, and this action was instituted. After the service of the writ in this case sundry other attachment-executions were served on the defendant. Before suit brought, the defendants had earned and received in cash more than sufficient to pay the plaintiff’s claim and the amount of the execution of Lucas, and at the trial had earned more than enough to j>ay the plaintiff’s claim, and all of the attachment-executions.</p> <p>The declaration contained one special count, and the common count for “money had and received.” After the award of the venire de novo, the plaintiff, under exception, filed an additional count, setting out more particularly the contract and promise of Mr. Merrick, the president of the road; the defendant’s pleas “ non assumpsit,” and “payment with leave” remaining as before the first trial.</p> <p>On the second trial the plaintiff requested the court to charge the jury:—</p> <p>1. That if the jury believe that Bittenbender refused to work for the Sunbury and Erie Railroad Company until he was paid his debt against the Philadelphia and Sunbury Railroad Company, and that the Sunbury and Erie Railroad Company, by their president, promised to pay him as soon as sufficient should be earned under the agreement of the 26th of March 1857, and that in consequence of this promise Bittenbender did their repairs, then their verdict ought to be in favour of the plaintiff for the $7000 and interest.</p> <p>2. That the agreement dated 26th of March 1857, between the two railroad companies, is a legal and valid agreement under the Act of 13th March 1847, and unless it was made in consequence of the inability of the Philadelphia and Sunbury Railroad Company to pay their debts, and this was the motive to make arrangement, the verdict of the jury ought to be in favour of the plaintiff.</p> <p>3. That if the jury believe that the Philadelphia and Sunbury Railroad Company was indebted to the plaintiff in the sum of $7000 for repairs done to their engines and cars, the said railroad company had a right to give him a preference over the other creditors by the agreement with the Sunbury and Erie Railroad Company..</p> <p>. 4. That at-the time of the execution of the agreement of 26th March 1857, the rent reserved was not capable of appraisement or of being inventoried, and the said agreement was not an assignment for the benefit of creditors, or within the acts relating to snch assignment.</p> <p>5. That the Sunbury and Erie Railroad Company have no power to accept an assignment for the benefit of the creditors of the Philadelphia and Sunbury Railroad Company, or of any other person, or to act as trustee in such an assignment.</p> <p>The court (Jordan, P. J.) answered all the foregoing points in the negative, and added: “ The Supreme Court in this case and the case of A. R. Fiske have decided that the paper in evidence in this case, dated March 26th 1857, between the Sunbury and Erie Railroad Company and the Philadelphia and Sunbury Railroad Company, and also in the case of Lucas v. The Sunbury and Erie Railroad Company, reported in 8 Casey 458, is an assignment for the benefit of creditors, under the Act of 17th of April 1843. That being the decision of the Supreme Court, we are bound by it, and therefore instruct you that the plaintiff cannot recover in this action.”</p> <p>There was a verdict and judgment accordingly; whereupon the plaintiff sued out this writ, and assigned for error here the refusal of the court to charge as requested, and in charging that “the plaintiff cannot recover in this action.”</p>

<p>Subrogation, between Joint Endorsers of Negotiable Pager — Lien of Bank on Stock of Debtor attaches on Protest of Note. — Lien not extinguished by Sale of Slock on Execution.</p> <p>1. The joint endorsers of negotiable paper are liable as copromissors, and as such, have no rights of subrogation against each other.</p> <p>2. By the Act 20th March 1819, § 35, where bank stock is taken in execution and sold, the purchaser of the stock takes it subject to the lien of any debt due by the holder of the stock to the bank; and a subsequent sale of the stock for the debt creating such lien divests the title of the first purchaser.</p> <p>3. A note drawn by C. to the order of A. and B., and jointly endorsed by them, having been discounted at a bank where A. held stock, was protested for non-payment, and judgment confessed by A. and C. to the bank for the amount: afterwards D. obtained a judgment against A., upon which issued execution, levied upon and bought the stock at the sale. The bank then obtained judgment against A. and B. on their joint endorsement, and issued executions on both of their judgments, upon which A.’s stock was again levied on, when B., one of the endorsers, paid the debt to the bank, took an assignment of the judgments to his use, and on the execution against A. and C. purchased A’s stock. The bank refusing to transfer the stock to B., he brought suit, when D. interpleaded, claiming it under the sheriff’s sale to him.</p> <p>Held, that the payment of the debt by B., with the assignment of the judgments, did not extinguish the lien of the bank on the stock which attached upon the protest of the note: that by virtue of the assignments, B. acquired all the rights of the bank, and became entitled to all its remedies: and that under the second sale he took a good title to the stock, notwithstanding the previous sale to D.</p>

<p>Error to tbe Common Pleas of Union county.</p> <p>This was an action of trespass quare clausum fregit, brought July 22d 1857, by Howard Malcom against James P. Ross, for tearing down the plaintiff’s fence, and treading down his herbage, &c.; to which the defendant pleaded “ Not guilty,” but afterwards filed a special plea, justifying his action in the premises, under an order of the Quarter Sessions of Union county, directing him as street commissioner of the borough of Lewisburg to “ open the extension of Third street in said borough,” and also under a resolution of the burgess and town council of the borough of Lewisburg, in reference to obstructions in streets, highways, &c.</p> <p>The material facts of the case appear to be as follows: — At September Sessions 1850 a report of viewers was presented in favour of what was known as the extension of Third street “in the borough of Lewisburg, laying it out from the south end of Third street,” through lands of the trustees of the University at Lewisburg and others, to the Lewisburg road. This report was confirmed December 24th 1850, and an order to open taken out April 28th 1851.</p> <p>On the 8th of August 1854 Howard Malcom purchased of the trustees of the University a portion of their ground adjoining his residence, on the left side of the extension.</p> <p>The order to open, which had been taken out April 21st 1851, was placed in the hands of Byers Ammon, supervisor of the borough of Lewisburg, about a week before September Sessions 1855, by some one who was interested in the opening of the road,, who directed him to proceed to open the street under the threat of a prosecution if he refused or neglected to do so. As he was threatened with a suit in case he proceeded to execute the order, Mr. Ammon took a bond of indemnity from certain persons interested in the opening of the road, and opened it according to the order of the court, except that he made an offset in the road on the side owned by Mr. Malcom. Previous to this, to wit, December 29th 1854, a petition was presented to the court, setting forth that the order to open had not been exécuted farther than Race street (which,was the boundary of the land owned by the University, or by Mr. Malcom), and praying for a view to vacate the remainder of the road south. A jury was appointed, who reported to May Sessions 1855. A review was granted at September Sessions 1855, and the contest kept up by re-reviews and exceptions until February 21st 1857, when the Quarter Sessions so disposed of the reports and the exceptions as to leave the road as originally laid out in 1850.</p> <p>Up to this time the councils of the borough of Lewisburg had taken no action in the matter. Some time in 1857, they gave J. P. Ross, who was then street commissioner, orders to open the road. Mr. Ross accordingly procured an order from the clerk of the court, and proceeded to do so according to the draft which accompanied the order. In doing so he set in the fence of Mr. Malcom at one end of his lot, the other corner being at or near its proper place, which was the trespass for which suit was brought.</p> <p>On the trial, the moving of the fence without any unnecessary damage was proved by the plaintiff. The defendant proved his appointment as street and road commissioner; gave in evidence the order of the Court of Quarter Sessions, and a resolution of the town council authorizing their clerk to appear and defend the suit at the cost of the borough.</p> <p>The plaintiff contended, and so requested the court to instruct the jury: — •</p> <p>1. That when a road has once been opened by the supervisors or street commissioners, its location cannot afterwards be altered by another supervisor or street commissioner for the purpose of placing it in what he may suppose to be its proper site.</p> <p>2. All authority under the order of the Quarter Sessions to open a road is exhausted by the action of those to whom it was directed, and cannot be resumed, although the first location was in a wrong place or not, according to the report of the viewers.</p> <p>3. That if the jury believe from the evidence in this case that Byers Ammon, a former supervisor, opened this street either where the viewers reported a road or in any other place, and that afterwards James P. Ross opened the same street in a different place, and thereby extended or widened said street upon the lands of Howard Malcom, that then the said Ross is a trespasser, and plaintiff is entitled to recover damages for said trespass.</p> <p>4. That the second order, issued to James P. Ross, was a nullity, and all acts done under it void for want of power in the court to grant such second order; and every act done under said order further than the mere clearing out of obstructions to the breadth of fifty feet in the road as opened by Byers Ammon was unauthorized and contrary to law, and would make defendant a trespasser the same as if he had been a private citizen, or had proceeded without any order at all.</p> <p>The defendant requested the court to instruct the jury that, by virtue of the Act of Assembly incorporating the borough of Lewisburg, the street commissioner is the proper person to open the streets.</p> <p>2. That a supervisor elected by the town council has no authority except that which is given him by order of the council or street commissioner.</p> <p>8. That under the evidence in this case the street in question was opened in pursuance of lawful authority, and by the proper officer, James P. Ross.</p> <p>4. That in opening the road according to the order of the court, the defendant was not trespassing, and according to the evidence the verdict must be for the defendant.</p> <p>5. That all orders issued to the supervisor were null and void, from want of authority in the supervisor to act in that capacity.</p> <p>Under the charge of the court, there was a verdict and judgment in favour of the plaintiff. The defendant thereupon sued out this writ, and assigned as cause for reversal the following matters, viz.:—</p> <p>1. The court erred in admitting as evidence the order directed to the supervisors of the borough of Lewisburg, dated the 28th of April 1851 (under which the plaintiff below claimed the road was opened prior to the order to the street commissioner, which was executed by James P. Ross), because the order of the 28th of April 1851, unacted upon until September 1855, after a view to vacate granted in December 1854, and proceedings pending, became a nullity; because not directed to any person having authority to open, and because the order did not contain a correct diagram of the road laid out by the viewers; because there was no proof that Byers Ammon had any authority to locate said order; because the plaintiff below failed to prove the road effectually opened in compliance with and according to said order.</p> <p>2. The court having answered defendant’s first and second points affirmatively, and in their answers thereto, said, “ That the street commissioners are the only persons designated in the Act of Assembly upon whom the duty would devolve, and that a supervisor elected by the town council could only execute the duties assigned him by the council or the street commissioner,” erred in instructing the jury in answer to the defendant’s third point, that “ James P. Ross was not the only proper officer to open the street; this will depend on whether you shall find from the evidence the supervisor ivas authorized by the council to perform such duty f and in not affirming defendant’s third point, that under the evidence in the case James P. Ross was the proper officer to open the street, &c.</p> <p>8.' The court erred in not affirming the defendant’s fourth point; and particularly in leaving it as a fact for the jury to decide whether the order of the court was not exhausted by Ammon previous to Ross obtaining a copy of it, and in refusing to instruct the jury that according to the evidence the verdict must be for the defendant.</p> <p>4. In refusing to instruct the jury, in answer to defendant’s fifth point, “ that all orders issued to the supervisor were null from want of authority in the supervisor to act in opening roads,” and particularly in instructing the jury in answer thereto, “ the officer they call the supervisor is created by authority of council to take part in the opening, regulating, and repairing of streets.”</p> <p>5. In the general charge, the court erred in saying, “ we have not been shown what the powers of this supervisor are; they are not defined by any by-law or ordinance of the council, and can only be collected from the parol testimony and acts of the supervisor recognised by the council;” an ordinance was given in evidence by the defendant’s counsel, in words following: “Resolved, That the supervisor do no work in the streets and alleys unless under the immediate instruction of the town council.”</p> <p>6. In instructing the jury, in the general charge, “ that the questions for them were, had Ammon any authority to open this street ? what authority did the council vest in him ? and did it extend to the act done by him in opening this road,” when not a particle of evidence of any authority from the council to open the street was given; on the contrary, he disclaimed any authority from the council, and swears that he opened it on the strength of a bond of indemnity given him by Charles E. Hess and others, and while, as the records show, proceedings were pending.</p> <p>7. In instructing the jury that they “were to determine whether Ammon was acting under the supervision and direction of the town council, with the order of the court, when he opened the street in controversy; if he was, the authority to open under order of the court was exhausted, and Ross changing tho route of the road from where it was opened by Ammon, would be a trespasser, and the plaintiff be entitled to recover,” when there was no such authority hinted at in all the evidence.</p> <p>8. In instructing the jury, in the general charge, “ that restrictions by the resolution (of the burgess and town council) of 1843, have reference only to a street commissioner, using the single number and not naming a supervisor.</p>

<p>Fire Insurance. — Effect of Partial Sale and Joint Possession of Insured, Property. — Notice of Loss when sufficient. — Parol Evidence of Contents of Written Papers, when Admissible. — Assignment by Insured Party after Loss. — Effect of on Policy.</p> <p>1. The law of the relation between insurers and the assured, is the policy of insurance, with all its clauses, conditions and stipulations, by which their mutual rights and liabilities are defined and measured.</p> <p>2. In a policy obtained by a merchant upon his storehouse, and upon his stock of goods therein, each for a certain sum, there was a condition that “in case of any transfer, partial transfer or change of title in the property insured, such insurance shall be void and of no effect,” &c. He afterwards sold a part of his stock, without notice to or with the consent of the company, and leased the lower story of his store to the purchasers, occupying himself the second story and the cellar with the balance of his stock, which, at the time of the fire, exceeded in value the insurance obtained on his goods.</p> <p>Held, that he had not forfeited his right to indemnity by failing to give notice of the partial sale, but was entitled to recover the amount of his 'insurance, it being upon merchandise, which is to be used for traffic and commerce, and not as property to be kept unchanged.</p> <p>3. The admission under lease of the purchasers of part of the stock, to the joint possession of the store building, was not a breach of the covenant; for the condition forbidding the transfer or change of title in the property insured, without the assent of the company, does not include a lease which changes only the possession.</p> <p>4. Where notice of the loss was required to be given to the secretary of the company by the assured, in writing, a written notice to the secretary from the local agent, upon information conveyed to him by the assured, is sufficient.</p> <p>5. A condition that notice of the loss be given to the company forthwith, requires from the assured due diligence under all the circumstances of the case; therefore, notice of a fire at T. on Saturday, given verbally to the local agent at S., twelve miles distant, and by him communicated to the secretary at L., seventy miles distant, within five days after the fire, on the following Wednesday, is a substantial compliance with the requirement of the policy, and is in time.</p> <p>6. Where the company had been notified to produce upon the trial the letter written by their local agent at S., giving information of the fire, and had refused, it was competent for the plaintiff to prove the contents of the letter by the agent himself.</p> <p>7. Where the assured, four years after the loss occurred, had made an assignment for the benefit of creditors, it was not error in the court below to reject the assignment, when offered in evidence by the defendant, to show the breach of a condition forbidding the transfer of a policy or a claim thereunder, either prior or subsequent to a loss, except by the consent of the company ; for after a right of action for a loss has accrued, no condition in the policy could prevent a subsequent assignment of the claim. The legal effect of the claim cannot be limited by such a condition ; the right to receive the insurance became a chose in action, and as such was assignable, and, if applicable, the condition was null and void, because oontrary to law.</p>

<p>Certiorari to the Quarter Sessions of Northumberland county.</p> <p>This was a proceeding to lay out and open a road in the borough of Milton, in which, on the petition of certain persons in said borough, five viewers were appointed, who returned for public use a road beginning at “Front Street,” and running through improved property belonging to Mrs. Wilson, and Messrs. Comly, Rhawn, Chapin, and others, and directed that the sum of §>1487.50 be paid to Mrs. Wilson by the county of Northumberland, for damages occasioned by the opening of the road. The Quarter Sessions confirmed the report so far as the road was concerned, but disallowed that portion of it which directed the payment of damages out of the county treasury, from which decree Mrs. Wilson appealed to this court.</p>

<p>What Writings are within the Rule allowing Judgment for want of an Affidavit of Defence.— Cause of Action must appear on the Record. — Count against Bailee who holds Proprty as Security must aver Demand, Refusal, and Value of Property hailed.</p> <p>1. Under a rule of court providing for the entry of judgments for the want of an affidavit of defence, in actions brought on bills, notes, or other instruments of writing for the payment of money, claims for the loan or advancement of money and hook debts, judgment can he entered only where the action is brought for a claim within one or more of these classes ; and where judgment was signed by the prothonotary for want of an affidavit of defence upon a claim, the greater part of which was a transaction growing out of the receipt from the plaintiff by the defendant of one hundred and ninety-four dollars in tidewater money, to be held as security for notes ho had gone bail on for the plaintiff, who had brought suit for the deposit after the notes had been paid, it was held, that- the receipt was not a bill, note, or other instrument of writing for the payment of money, nor was the transaction a loan or advancement of money, within the rule of court, and that therefore the judgment entered thereon was unauthorized and void.</p> <p>2. Where the principal count in the declaration did not aver the value of tidewater money, nor that any demand was made upon the defendant for its return after his suretyship had ceased, nor that notice was given to him that the notes in which he had become bail were satisfied, hut only that he had converted to his own use the security deposited with him, and thereby had become liable to pay in current money, it was defective because no sufficient cause of action was set forth in it; and the want of an averment of demand and notice was not cured by the verdict.</p> <p>3. The defendant, who, as a bailee, had received the tidewater money, to be held as security, for the payment of a debt, was under no obligation to return it until demand made, or at the least, until notice that the debt, as security for which he held the pledge, had been paid by the plaintiff; and the judgment entered by the prothonotary for the deposit, assumed to be equal in value to federal money, including interest from the time of the payment of the debt by plaintiff, was for this reason also erroneous.</p>

<p>Confirmation of Account, effect of on Balance due by Accountant. — Not affected by the Statute of Limitations.</p> <p>1. The balance due a committee of an habitual drunkard in his account, after it has been regularly filed in the Court of Common Pleas, and absolutely confirmed, becomes a debt of record, the settlement of the account then being in the nature of a decree in chancery, and the balance a debt collectable by action or available as a set-off.</p> <p>2. A. in 1825 loaned his father-in-law B. a sum of money on his single bill, upon which several payments were made. In 1839 A. was declared an habitual drunkard, and B. appointed his committee, who some years after was discharged. In 1849 an account of the trust was filed and confirmed in the Court of Common Pleas, showing a balance in favour of the committee. After the death of both, suit was brought in 1858 by A.’s administratrix, to recover the balance due upon the single bill, against B.’s executor, who set off in defence the balance due his testator in the account as settled, to which plaintiff replied that it was barred by the Statute of Limitations.</p> <p>Held, that the balance due the committee in his account, as settled, was a proper subject of set-off, and that being a debt of record, the statute did not run against it.</p>

This was a proceeding in the court below, under a rule obtained by Mary Hays, (who was summoned as garnishee in an attachment-execution against Nesbit, Hayes & Fichthorn; at the suit' of J. Frederick Pontius,) to show cause why an attachment-execution against her should not be quashed, on the ground of a previous execution-attachment having been issued on the same judgment against a different garnishee, and under a different Act of Assembly.

<p>Insurance of Merchandise. — Building Permit. — Evidence as to Waiver of Condition.</p> <p>1. A firm took out a policy of insurance upon merchandise contained in a “ new frame barn, wagon, and wareroom,” situated on an alley and occupied for a warehouse, and subsequently assigned their interest in the policy and property insured to others, who erected a brick addition of their storeroom (which was built upon the front of the lot, on the rear of which the frame barn was erected) extending it back to the alley, and requiring the removal of part of the barn: afterwards, the new building, and the remnant of the frame barn, with their contents, were destroyed by fire. In an action against the insurance company for the insurance upon the goods in the remnant of the barn and in the brick extension, it was</p> <p>Held, that no recovery could be had, under the policy, for any loss of goods in the new brick building or extension of storeroom, and, if at all, only for those contained in the remnant of the frame barn and wareroom as originally erected and insured.</p> <p>2. AVhere by endorsement on the policy at the time of building the brick extension, it appeared that the insured had given their note for “carpenter's risk,” and had paid five per cent, upon it, and upon the foot of the note, a memorandum, that it was for additional risk in extending storeroom, the endorsement and memorandum cannot be construed into consent by the insurance company that any part of the frame barn should be torn down, or into any engagement to insure goods in the extension of the storeroom ; they amount to consent only that the storeroom on the front of the lot might be extended, thus increasing their risk, and were neither consent or evidence of consent that the frame bam might be extended, or that a part of it might be taken away.</p> <p>3. By a condition in the policy, the insured were bound; in case of loss by fire, to forthwith give notice to the secretary, and within thirty days after loss to deliver to the secretary a particular account of such loss or damage. An account was sent by mail to the secretary, setting out the names of the partners, the number of their policy and amount insured therein, the value of their stock in the store, as estimated from their books, and reciting insurances in two companies (the store in front and its brick extension having been insured by another company) giving an account of an entire undivided loss, and claiming it to be embraced in the policies of the two companies, but without statingtheamountof th"eloss or damage upon the policy of the insurance company defendant, nor that the loss was upon goods insured under that policy, nor in what way that loss was ascertained. He Id, that the account sent, was not such a particular account of the loss and damage as was required by the policy.</p> <p>4. Where the president of the insurance company defendant, when examining the books of the plaintiffs to ascertain the loss of goods in the store, was applied to by them for instruction how to make out their statement, and gave a memorandum in pencil, without date or signature, of what it should contain, neither the examination of the books nor the memorandum were evidence that the requirements of the policy in relation to a particular account of the loss had been waived by the company: the memorandum given to plaintiffs by which to make out their statement, was, in effect, a demand of compliance with the terms of .the policy ; and it was error in the court below to instruct the jury that the giving of the memorandum was such an act as would waive the requirements of the policy, or that there was any evidence of a waiver whatever.</p>

<p>Error'to tlie Common Pleas of Union county.</p> <p>This was a decree of the court below, ordering and directing a stay of execution on a judgment against Thompson G. Evans and Jacob Rodenbaugh, in favour of Susan Billmeyer. The case was this:—</p> <p>On the 12th of July 1860, Thompson G. Evans and Jacob Rodenbaugh executed a judgment, single bill, for f!1000, payable to the order of Mrs. Susan Billmeyer, twelve months after date, with interest and costs, in which was contained this clause, “ and without stay of execution after date of payment.” Judgment was entered thereon in the Common Pleas of Union county on the 14th of July 1860. On the 17th of August 1861, defendants made application to Hon. John Walls, one of the associate judges, for stay of execution on said judgment, under the provisions of the Act of 21st May 1861, entitled “An Act relating to judgments and executions,” who appointed the 20th of same month for a hearing, and then postponed the matter until the first day of the regular term of court, which was on the 16th of September. On that day the parties attended, and the application for stay of execution was resisted by the plaintiff. The court being satisfied that the defendants were possessed of real estate within said county of Union, Avorth at a fair valuation a sum more than* sufficient to pay or satisfy said judgment, together with interest and costs, over and above other encumbrances, and the amount exempted from levy and sale on execution, directed a stay of execution on the judgment for one year from the 21st of May 1861; whereupon the plaintiff sued out this writ, and assigned for error the following matters, to wit:—</p> <p>1. The court beloAv erred in granting the prayer of the petitioners.</p> <p>2. In granting the prayer of the petition, because the contract of the parties Ayas an especial waiver of stay of execution after day of' payment; and,</p> <p>3. In granting the prayer of the petition, because the clause of the Act of Assembly, approved May 21st 1861, extending the stay of execution, in these words, “ To all judgments or debts upon Avhich stay of execution has been or may be waived by the debtor in any original obligation or contract upon which such judgment has been or may hereafter be obtained, or by any stipulation entered into at any time separate from said obligation or contract,” is unconstitutional in its application to the contract of the parties in this case.</p>

<p>Widow’s Right to $300 out of her Husband’s Estate not affected by the fad that it is claimed against Creditors whose Debt originated prior to July Ath 1849. — Postponement of Decree until Settlement of Account not improper.</p> <p>1. The widow and administratrix of a decedent claimed her exemption under the Act of 1851, and presented the appraisement to the Orphans’ Court for confirmation, but the court declined to adjudicate upon her right to the exemption until the settlement of the administration account: in her account when filed she claimed a credit for the exemption, which was allowed.</p> <p>Held, that such allowance was not error, though the appraisement was not confirmed when made, for it was competent for the court to postpone their decision upon it .until the filing of the account, and by their final decree thereon, then to confirm the appraisement.</p> <p>2. The "Widow’s Exemption Act of 1851 is independent of the Debtor’s Act of 1849, and is not restricted like that act to debts contracted after any particular period, the only restriction being as to liens for the purchase-money of land: therefore, where the debt against the estate of the decedent existed prior to the 4th of July 1849. the time to which the operation of the Debtor’s Act was restricted, it would have no effect to prevent the allowance of the §300 exemption claimed by the widow under the Act of 1851.</p>

<p>Error to the Common Pleas of Lycoming county.</p> <p>This was an action of assumpsit, by Richard Childs, for the use of J. B. Strong, against the township of Brown in the county of Lycoming, to recover the sum of $175 with interest, which sum was alleged to be due to the plaintiff from the defendant, under a contract for building a road w.hieh had been ordered by the Court of Quarter Sessions in said township, with the necessary bridges, &c. The principal defence in the, court below was, that the supervisors of the township had no authority to make such a contract.</p> <p>Under the instruction of the court, there was a verdict and judgment in favour of the defendant, whereupon the case was removed into this court by the plaintiff, where the charge of the court below on this point was assigned for error.</p> <p>The material facts of the case are set forth in the opinion of this court.</p>

<p>Trust Estates, Limitation of Actions to Recover. — Rights of Minors under Acts of 1785 and Í856 relative to Actions for Real Estate.</p> <p>1. The Act of March 26th 1785, relative to “Limitation of Actions,” is not repealed, but is modified by that of April 22d 1856, “ for the greater certainty of title and more secure enjoyment of real estate.”</p> <p>2. A. purchased a lot of land in 1844, into possession of which her sister B. entered, claiming a resulting trust therein ; at the date of the conveyance B. was a married woman, but by the death of her husband a few years later, became discovert. After the death of both A. and B., the son and heir at law of B., in 1859, one year after he attained his majority, brought ejectment for the lot ofland to enforce the alleged trust,upon the trial of which,the statute of 22d April 1856 was set up as a bar against his recovery.</p> <p>Held, that the plaintiff was not barred of his action because the suit was not brought within the time limited in the 6th section of that act; for under the first section, the mother was entitled to thirty years after her right accrued within which to maintain her action for the recovery of the lot, and her son succeeding at her death to her rights, was entitled to his action at any time within thirty years from the time the right accrued to his mother.</p> <p>3. Therefore, where the court charged in substance that the trust, if there was one, was a resulting trust, relating to realty, and created at the time of the conveyance in 1844 to A. ; and that allowing seven years — the time given by the limiting clause and the proviso in the sixth section of the Act of 1856 —within which to enforce the trust, the time would expire in 1851; and as the ejectment was not brought until 1859, the act was a bar, it was error.</p> <p>4. It was not material that the son, who was a minor until 1858, had brought his action within ten years after his own disability had ceased: for the limitation of the 6th section of the Act April 22d 1856, was inapplicable to persons under legal disabilities for whom another rule was provided within which the plaintiff had brought himself. The right of action having accrued to the mother at the death of her husband, the trust could have been, enforced by her at any time within thirty years thereafter, or by her heir at law after her death.</p> <p>5. Though B. was in possession under claim of title from the purchase until her death, which was before the passage of the Act of 1856, and had therefore no occasion to bring ejectment, she had nevertheless a right of action to compel her sister to convey the legal title she held in trust. After the passage of the act it would have been her duty, though her possession was undisturbed, to compel a conveyance or a written declaration of trust, which duty devolved upon her heir at her death, for the purpose of the statute was to superadd to the possession written evidence of the right of possession.</p>

<p>Ejectment. — Description inWrit, when sufficiently Certain.— Construction of Contract for Sale of Iron Ore and Limestone. — Extent of Interest acquired, by Contract.</p> <p>1. A. granted to B., his heirs and assigns, by writing under seal, in consideration of one dollar, “ the exclusive right and privilege of searching for, digging, raising, and carrying away” from off certain land “all the iron ore and limestone on said land,” and also timber sufficient to enable said mines to be worked to advantage, with right for roads, &c., room for depositing ore, limestone, and dirt, free ingress tomines and quarries at all times, room oil land for houses and buildings necessary for iron works, &c., B. agreeing to pay to A., his heirs and assigns, at the rate of twenty cents per ion of clean ore.</p> <p>B. then entered into possession, mined„ore and quarried stone, but erected no ironworks. Afterwards, B.’s rights under the deed became vested in 0. and D., who brought ejectment under the deed against the purchasers of A.’s farm, for a limestone quarry, of about three acres in extent. Held,</p> <p>That though a grant of an unlimited right, title, and privilege to dig and take away the ore in a designated tract of land to any extent the grantee might think proper, and for a consideration presently paid, is a grant of the ore itself, and not merely of a license or incorporeal right, yet, the deed by A. to B. was, under the circumstances, to be construed according to the reasonable intent of the parties; and where it was evident, that A.’s motive for executing the deed, and the basis on which it rested, was the contemplated erection of ironworks upon his land by B., for which the iron ore and limestoné were intended; that although the premises in the deed indicated an intention to transfer the ore and limestone, no equivalent was to be given for either until the ore was taken, which B. was not bound to do; that what B. was to take and when, was left uncertain: that some of the rights granted were incorporeal, conditioned upon the erection of ironworks, and the subject-matter of the agreement, in many particulars undefined and undefinable until such erection; and that if, under it, the ownership of the limestone and the ore became immediately vested in B., he and his heirs might hold it for ever without erecting works or rendering any compensation therefor to the grantor; the deed would be regarded as a sale without consideration paid or agreed to be paid, and an immediate divestiture of the ownership in the ore and limestone by one and acquisition by the other under it. as not to have been intended by the parties, unless the language of the deed would admit of no other construction; and that, looking to all parts of the agreement, it could not be held as vesting in B. a corporeal hereditament, such as was essential to the maintenance of the action of ejectment.</p> <p>2. Where the description in the writ of ejectment was for a certain limestone quarry, containing about three acres, and bounded on two sides by ad-joiners, a verdict for the quarry, describing the two boundaries, would have been sufficiently certain.</p>

<p>Mandamus to tbe Commissioners of Allegheny county.</p> <p>This was an alternative mandamus awarded by the Supreme Court on the relation of William G. Armstrong, against the Commissioners of Allegheny county, in which the opinion of this court rendering judgment for the relator on the return filed by the respondent, was delivered on the 19th of November 1860: 1 Wright 277.</p>

<p>Fraud in Law and Fraud in Fact, distinguished. — Sales of Personal Property. — Possession must accompany Transfer.</p> <p>1. Fraud in law differs from fraud in fact, in that when certain “ indicia” are established, its presence is determinable, as a matter of law by the court, regardless of evil intent on the part of those engaged in it: Avhereas fraud in fact depends upon the fraudulent intent of the parties, and the facts establishing this are for the jury.</p> <p>2. Where, in a sale of personal property, the possession does not follow and accompany the transfer, it is a fraud in law without regard to the intent of the parties, and is a question for the court and not for the jury.</p> <p>3. W., a merchant, having failed, bought goods on credit as the agent of his wife, which were not at any time paid for out of her OAvn money or estate. Afterwards, she sold the goods Avith the store-lease and fixtures to her brother II., a journeyman blacksmith; no money being paid by him, the only consideration being tAvo notes of $500 each, and his guarantee that he would pay certain of her debts. No inventory was taken, the same signs on the window-blinds and house remained, with the same clerks, save one, nor was there any outward visible change of possession; but W. remained in the store, attending to the business in the same manner after the sale as before; ostensibly as the agent of H., ayIio shortly after the alleged sale went to Texas and remained there. Part of the goods levied on by the creditors of W. were purchased by him a few days before, as agent, on credit, he giving therefor a mortgage executed by himself and wife, on her separate estate.</p> <p>On a feigned issue, under the Sheriff's Interpleader Act, to try the right to the property levied on, it was held:</p> <p>1. That as the property first purchased was not paid for by the wife out of her own money or estate, she had no title to the goods, but the ownership was in her husband :</p> <p>2. That, therefore, the sale or pretended sale to H. was, under the evidence, a case of retained possession without open and visible change, and for that reason, fraudulent and void — a fraud in law, even if there had been a formal sale, with honesty of intent, and payment of the purchase-money; and, that the court should so have instructed the jury in answer to plaintiff's point, leaving to the jury the facts as to the possession, if disputed.</p>

<p>Joinder of Counts.— Case for Negligence, and Trover and Conversion.— Rights, Duties, and Liability of Sheriff on Levy and Sale of Personal Property. — What proceedings are not res inter alios.</p> <p>1. Where, in an action against the sheriff, the plaintiff’s declaration contained one count in case against him as sheriff, for so negligently executing the writ as to cause plaintiff to lose his debt, and another in trover and conversion, against him individually for the value of the goods, such joinder is not error, for they are both actions on the case, the plea and judgment being the same in each; and the demurrer of the defendant to the declaration, on the ground of misjoinder, was properly overruled. ’</p> <p>2. If a sheriff levies upon goods as the property of A., in which B. claims a partnership interest, and the plaintiff refuses upon request made, to indemnify the sheriff, he may either return the writ “ nulla bona,” or refuse to sell anything but the interest of defendant in the goods.</p> <p>3. Where, after the sale, the sheriff retained possession of the goods, until the bid was paid, and then refused to deliver them to the purchaser, who was plaintiff in the execution, and who offered indemnity, but delivered possession of the store and goods to the person claiming to be the partner, against whom the purchaser afterwards established his title to the goods, he was liable to such purchaser for the value thereof.</p> <p>4. Upon the trial of the action against the sheriff, the record of an equity suit instituted to test the title of the alleged partner in the goods, decided against him, is competent evidence for the purchaser of the defendant’s interest at the sheriff's sale: although the sheriff was not a party to the equity proceedings.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action on the case brought by Munn & Barton, against the City of Pittsburgh and the Pennsylvania Railroad Company, to recover damages for injury to their mill and manufactory, on the corner of Pennsylvania avenue, Boyd and Watson streets, Eighth Ward, Pittsburgh, by the bursting or falling in of a sewer.</p> <p>The case was this :—</p> <p>When the state of Pennsylvania constructed the line of public works from Philadelphia to Pittsburgh, it extended the canal by a tunnel through the hill from Seventh street, Pittsburgh, to the south-eastern line of Pennsylvania avenue, and thence by the bed of what was formerly called Suke’s Run, to the Monongahela river ; but the tunnel and that part of the canal along Suke’s Run was never used for the purpose for which it was made, only one or two boats having passed through it.</p> <p>To carry off the water of Suke’s Run so that it would not affect the canal, a tunnel was constructed alongside of it from near the avenue to the river, of brick, five feet in diameter in the interior or “ clear,” with a thirteen inch wall or arch around it. This sewer was not made on ground taken from individual owners and paid for by the state, like the canal, but was excavated through private property, and was entirely covered up, so as to leave the ground for use by the owners as before. Near Eoyd street it was covered with earth to the depth of about fifteen feet, so as to be level with the surrounding ground. The state does not appear to have paid any attention to this part of the canal and tunnel after their first construction. But the water of Suke’s Run continued to flow through it up to 1849 or 1850.</p> <p>In 1849, the city of Pittsburgh provided for the construction of, and did construct, a tunnel from a point on Pennsylvania avenue, near Washington street (about a third of a mile east of Boyd street), running along under the centre of said avenue, at a moderate descent, to a point opposite said Boyd street. There the new tunnel, by a sharp curve and a rapid descent, was run across the mouth of Boyd street, down to the head of the old tunnel built by the state, and so connected with it, the two thus forming one continuous tunnel from the beginning of the new one by Washington street to the terminus of the old one at the Monongahela river. The point of junction of the two was made under a lot or lots of ground now owned by the plaintiffs by purchase in November 1859. At that point the ground was filled up to the height of about fifteen feet above the upper wall or surface of the new and old tunnel, and left for use by the owners as was usual elsewhere. Along this short curve, by which the junction was effected, the fall or descent is at the rate of about five feet in the hundred, or one foot in twenty feet. Along the other parts of the new tunnel the fall is but two or three inches in ten feet. This curve is about one hundred feet in length, and the deflection or turn-off, from the straight line of the new tunnel, is from fifty to sixty feet in that distance.</p> <p>The new tunnel was built at an interior diameter of live and a half feet. To make the new and old tunnels correspond in diameter at the point of junction, the new tunnel was contracted from five and a half feet to five feet, which contraction is made along the aforesaid curve.</p> <p>The water of Suke’s Run was carried off by the old sewer before the new sewer was built. The new sewer is not on or near the bed of Suke’s Run, but in its whole length from fifty to one hundred feet north of it, pursuing the same general direction. The new sewer drains a larger area than Suke’s Run and the old sewer did before the new one was built, a branch of the new sewer being extended to the Court House, on Grant’s Hill.</p> <p>Since the construction of the new sewer the city has repeatedly repaired it when broken in at different places.</p> <p>There was evidence in the ease tending to show that this old sewer was not of sufficient capacity to carry off freely all the water thrown into it by the new one.</p> <p>Neither the city nor the state ever took for public use, or paid for, the lots Nos. 1 and 2, the property of the plaintiffs in this case, under which these two sewers are joined.</p> <p>In the fall of 1858, the plaintiffs built on these two lots a large three story brick building for a manufactory of farming implements, boxes, wind-mills, &c., and mill for grinding “feed,” and also a “feed store.” They put in expensive machinery, and carried on a large business until the month of July 1859, when during a heavy rain, the earth, some fifteen or twenty feet deep over the sewer, fell in, and being carried away by the water, made an excavation about twenty-five or thirty feet in diameter, tearing down a part of the Avails of the factory, breaking and destroying machinery and materials, and nearly ruining the building and stopping the work entirely. The damage occasioned to the plaintiffs thereby Avas about $!4000.</p> <p>It also appeared from the evidence, that the foundation walls of the factory Avere not placed on the rock on which the sewer was built, but only two or throe feet deep,' adding the Aveight of the building to that of the earth, which had previously been thrown upon it. The break occurred wholly in the sevrer which had been built by the state, and which was afterwards repaired by the city, to allow the Avater to pass freely away from the sewer which had been built by authority of councils; for which purpose possession of the site of the factory was taken, and retained until the completion of the work.</p> <p>The plaintiffs’ declaration contained five counts, alleging:</p> <p>First. That defendants, by the construction of divers sewers, diverted the natural course of the water, and caused the same to flow through plaintiffs’ lots, and greatly increased the quantity and volume of the water, and that defendants were bound to keep said sewers in repair, but failed to do so; and that on the 80th day of June 1859, said sewers broke and damaged plaintiffs’ mill.</p> <p>The second count alleged the construction of the sewers and the duty of defendants to keep them in repair, and their .failure to do so, by reason of which the same gave way and fell in, and thereby damaged plaintiffs’ mill.</p> <p>The third count averred that defendants wrongfully caused great bodies of water to be thrown upon plaintiffs’ lots, by which their mill was undermined, wrecked, and injured.</p> <p>The fourth count alleged the construction, by the state of Pennsylvania, of a sewer running through plaintiffs’ lots, and that the city of Pittsburgh afterwards constructed another sewer connected with the state sewer, by which large bodies of water which before that time were carried off by other outlets, were thrown into the state sewer, exceeding its capacity, in consequence of which it broke and bursted, and that the plaintiffs’ mill was thereby injured.</p> <p>The fifth count alleged the existence of a sewer through plaintiffs’ lots for the mutual use and benefit of defendants, which it was their duty to keep in repair, but that they neglected this, and suffered it to fall into dilapidation and decay, and by reason thereof it broke under plaintiffs’ mill and injured it.</p> <p>Before the case was tried, plaintiffs entered a nol. pros, as to the Pennsylvania Railroad Company, and proceeded against the city of Pittsburgh alone, making no change in or amendment of their declaration.</p> <p>The testimony of the plaintiffs showing only the above stated facts, the defendants requested the court to nonsuit the plaintiffs on the ground that there was no evidence of negligence or misfeasance on the part of the defendants on which a jury could properly base a verdict; which was done, and afterwards, on argument, affirmed by the court in banc. The case was thereupon removed into this court by the plaintiff below, who assigned for error, the entry of judgment of nonsuit; the refusal of the District Court in banc to set aside the nonsuit; the ruling of the court below that plaintiffs had not offered any evidence which entitled them to recover, and the assuming to decide the law and the facts of the case, thus depriving the plaintiffs of their right of trial by jury.</p>

<p>Error to the Common Pleas of Allegheny county.</p> <p>This was an action of assumpsit brought by Caleb Russell against James I. Marks and John McClosky, executors, &c., of William Marks, deceased, in which, after plaintiff’s declaration and affidavit of cause of action were filed, a rule to plead on ten days’ notice or judgment was taken, served on the 27th of December 1860, and judgment in default entered January 7th 1861.</p> <p>On the 7th of January 1861, after the judgment was entered, the defendants pleaded non assumpsit, &c.; and on the 12th of January obtained a rule on tbe plaintiff to show cause why the judgment should not be opened, and defendants let into a defence, proceedings to stay in the mean time, which rule was made absolute March 11th 1861.</p> <p>On the 30th of March 1861 plaintiff’s attorney moved for a rule to show cause why the judgment should not be reinstated, which rule was also made absolute. The case was, thereupon, removed into this court by the defendants, for whom the following errors were assigned:—</p> <p>1. The judgment was prematurely entered, defendants’ pleas .having been entered within the time allowed by the rule of court.</p> <p>• 2. It was error for the prothonotary to enter a final judgment.</p> <p>The judgment should have been interlocutory, if plaintiff was entitled to judgment at all.</p> <p>3. The judgment is erroneous in being for a greater sum than that mentioned in the declaration.</p> <p>4. The judge erred in reinstating the judgment. I-Iis discretion was exhausted on the first rule; having opened the judgment, he had no authority, upon a mere reconsideration of his own action, to close it again.</p>

<p>Lateral Railroads. — Appeal from Report of Viewers.— What Questions are for the Court, and what for the Jury.</p> <p>1. Under the Lateral Railroad Act of 1832 and its supplement of April 20th 1858, the determination of the necessity of the proposed road, after an appeal from a favourable report of viewers, is exclusively for the court, and is not to be submitted to the appellate jury for retrial; the only question for them is the amount of damages.</p> <p>2. Horner and Roberts’s Lateral Railroad, 1 Wright 333, affirmed.</p>

<p>Lateral Railroads.- — -Form, of Petition for, as to Landowners, extent of Right claimed, and Grades. — Necessity for, a Question for the Court. —Amendment of Petition allowed after an Appeal as to Damages.</p> <p>1. In proceedings under the Lateral Railroad Acts, it is not essential, though proper, that all the owners of land over which the proposed railroad is to pass, should be named in the petition; and if a mistake be made as to the real owner, the court may direct the damages assessed by the viewers to be paid to the proper party on proof of the facts.</p> <p>2. Where one was named as a reputed joint owner of a tract over which the railroad was located, in connection with the real owners, when she was not a joint owner but only had an annuity issuing out of the land ; and her name was stricken from the record by leave of the court, after the report of viewers and before the final assessment of damages, it is not a fatal defect in the netition or proceedings. The owners of the land were named, and they could show that the proposed road was unnecessary, or failing in that, could have their damages assessed, which was all they were entitled to under the law; nor were they compelled to appeal in order to prevent her participation in the damages, for the assessment was not an adjudication between them, and if it had been, it is no ground for reversing the action of the court below, where the damages had been assessed for the rightful owners: nor can they complain that their tenant was not named in the petition, for such omission was not a defect therein.</p> <p>3. It is not a valid objection to the petition, that it represented the desire of the petitioner to make, construct, and use his proposed railroad with double or single track, as may be found most suitable for carrying his coal, or coal of other parties thereon : for the law not only authorizes such a petition, but the owner of a lateral railroad may be required to carry the coal of other parties upon it.</p> <p>4. It is not necessary that the grades of the road should appear in the petition or on the plot.</p> <p>5. If the petitioner already has the right of way sought by another route, that fact is proper evidence to submit to the viewers or to the court below on the question of the necessity of the road; but it has nothing to do with the question of damages, and is not evidence for the appellate jury.</p> <p>6. It is not error in the court to permit the petitioner, pending an appeal as to damages, to amend his petition, so as to include other coal lands purchased since the commencement of proceedings, as the amendments could not change or affect the matter in controversy between the parties.</p> <p>7. Under the supplementary Lateral Railroad Act of April 20th 1858, the question of the necessity of the road is wholly with the viewers and the court; the appellate jury can only pass upon the question of damages.</p> <p>8. Before an appeal from the report of viewers of a proposed lateral railroad, is sent to an appellate jury for trial, the court should approve or disapprove the finding of the viewers respecting its necessity; for if the court does not concur in opinion with the viewers, there is nothing to be tried.</p>

In Equity. This was an appeal from the decree of the court below, taxing and allowing Thomas H. Baird the sum of $400, fees as Master in Chancery for services rendered in the case of Eliza C.… Held: and various questions heard and decided by the master. In August an application was made by defendant’s solicitor to revoke the appointment of the master, which was refused by the court, and the master authorized to take testimony and return it to court, with his opinion thereon.

<p>Distribution of Intestate’s Real Estate to Nephews and Nieces under Acts o/1833 and 1835. — Rule as to Distribution per stirpes ancl per capita.</p> <p>1. Under the Act of 8th April 1833, sections 4th and 14th, nephews and nieces, when the heirs at law of a deceased uncle, take in the distribution of his estate per capita and not per stirpes.</p> <p>2. One died intestate, without issue, leaving as his heirs at law the children of his three deceased brothers, one leaving one child, another four children, and the third nine, fourteen in all, a majority of whom petitioned the Orphans’ Court to award an inquest to make partition of his real estate, into as many purparts as there were children, on the ground that they took per capita, which mode of partition being decreed, an inquest was held and partition made into fourteen purparts. Judgment being entered thereon, on appeal by the only child of one of the brothers of intestate, who claimed partition per stirpes and thereunder one-third part of the estate, it was held: that, as in the case of grandchildren in lineal descent, nephews and nieces among collaterals, when heirs at law, were entitled to take in equal shares per capita.</p> <p>3. Article 2d of section 4th of the Act of 8th April 1833, is not repealed by the 2d section of the Act 27th April 1855, providing that collaterals shall take by representation ; for that section in the Act of 1855, is but an extension of article 4th section 2d of the Act of 1833, to the case of collaterals, and as the first did not affect grandchildren, so the second does not touch the case of nephews and nieces, nor does it repeal the 8th section of the Act of 1833, except pro tanto.</p> <p>4. It seems, that the rule is, that when all the heirs are in equal degree of consanguinity to the decedent, they take per capita; but when they stand in different degrees, then the more remote take by representation.</p>

This was an action of debt on one of several bonds, dated August 5th 1854, secured by mortgage, which were given by William J. Howard, Jr., to W. A. & J. C. Maguire, for the purchase-money of a tract of land in said county, which bond, after the usual recital in the condition, contained the following clause: — “ This bond being bound for the sinking of a well below the coal or otherwise, to obtain water permanently for all family purposes, provided the same be necessary, by…

This was an action, of trespass, quare clausum fregit, brought by the defendant in error against the plaintiffs in error, in the District Court of Allegheny county, for alleged damages done to a brick dwelling-house in the eighth Avard, city of Pittsburgh. The plaintiffs and defendant own adjoining lots in the hollow on Magee street, between Pennsylvania avenue and Boyd’s Hill. The street is some fifteen feet higher than the adjoining land.

This was an action on the case, brought in the District Court to July Term 1859, by James McCully against Thomas S. Clark and William Thaw, partners, doing business as Clark & Thaw, to recover damages for the destruction by fire of a warehouse and contents, owned by him, on Penn street, in the city of Pittsburgh, alleged to have been occasioned by the default of the defendants in “negligently and wilfully” permitting a large quantity of burning coal to remain for a long time…

This was an appeal by John S. Hall, Frances Bailey, and Samuel W. Hall, heirs and assigns of Samuel Hall, deceased, from the decree of the Orphans’ Court of Allegheny county reversing and setting aside the auditor’s report on the account of John C. Bidwell and John Hall, executors of said deceased. Samuel Hall died in April 1852, and at the time of his death was a member of the firm of Hall & Spear.

This was an action of trespass, brought August 31st 1859, by Major Sinclair against'William C. Healy, sheriff of Elk county, to recover damages for levying on and selling two yoke of oxen under a writ of fieri facias, at the suit of Sattler & Bennett against Jerome Powell, John Cobb, and Rulof Rulofson.

This wa.s a foreign attachment in case by John M. Frederick against Alexander Easton, wherein The Pittsburgh and Birmingham Passenger Railroad Company were summoned as garnishees, in which, after judgment against the defendant, which was subsequently assessed at $102.94, interrogatories were exhibited to the garnishees, and answers and amended answers filed.

This was an appeal by David Fitzimmons and John A. Fitzimmons, from the decree of the Orphans’ Court, directing the sale of the real estate of Thomas Wallace, deceased.

<p>Levari Facias to Administrator de bonis non, when returnable. — Act of February 24th 1834, §§ 27, 32 and 33, construed. — Effect of Judgment against Administrator.</p> <p>1. Judgment on mortgage being entered in lifetime of mortgagor, after his death his executor appeared without scire facias and was substituted, but being afterwards removed, an administrator de bonis non was appointed, against whom a scire facias issued, 29th September 1860, returnable 1st Monday of October, to-bring him on the record. On 20th October, the administrator not appearing, judgment of substitution was entered, and afterwards a leoari facias issued, to which judgment and execution a writ of error was taken. Held, that the course of proceeding in the court below was proper under the 33d section of the Act 24th February 1834, relating to executors and administrators; and that neither the 27th section of that act, granting a continuance of one term in an action pending, nor the 32d section, applied to the proceeding.</p> <p>2. Such judgment, however, would not prevent a stay in order to let the administrator apply for a sale of the property, under the order of the Orphans’ Court.</p>

This was one of thirteen actions of debt brought in the court below, by Samuel Wilson against Alexander Guthrie and Hugh McGuire, which by agreement were submitted to arbitrators, whose award was to be final, but with the stipulation that if “ any legal questions should be raised and decided by the arbitrators, they or a majority of them should set them out specifically, and make report to the court for adjudication and decision thereon, with leave to either party to take a…

Error, to tbe District Court of Allegheny county. Held: or to be acquired, in the board of directors, and divided it into three thousand shares — making twenty-seven hundred of those shares liable to assessments, when deemed advisable by the board, for the purpose of' developing mines and carrying on work, and for their transfer by the owners, for the keeping of a record, the appointment…

<p>Affidavit of Defence, what is sufficient.— What constitutes failure of Consideration and Fraudulent Misrepresentation.- — Representation not a Condition.</p> <p>In an action on a promissory note given in settlement of a subscription for a scholarship, the defendant filed an affidavit of defence, averring: 1. That the consideration had failed, the scholarship being worthless, in consequence of the pecuniary embarrassments of the college. 2. That the subscription was made and the note given under representations by the agents of the plaintiff, that money enough had been or would be subscribed to pay off the entire debt, and make the scholarship worth the amount of the note before it should be collected, which had not been done. 3. That the affiant was informed by one of the trustees that the charter had been forfeited by reason of improper conduct, giving the name of the trustee from whom the necessary facts for this purpose could be ascertained, and 4. That he had never received any consideration, or benefit or certificate of scholarship. All which he expected to be able to prove. It was held,</p> <p>1. That as the affiant did not state that he had failed to receive the scholarship, nor aver fraudulent representations on the part of the agents of defendant at the time of making the subscription, the court was right in entering judgment in favour of plaintiff for want of a sufficient affidavit of defence.</p> <p>2. Representations by agents of the college at the time of the subscription, that by reason of the subscriptions made, and to be made, the scholarship would be worth the amount charged for it when same should be payable— not being expressly made a condition in the subscription, and no fraud being charged — are to be treated as an expression of opinion only, and will not avoid the contract.</p> <p>3. Acts alleged to work a forfeiture of the charter of a college cannot be taken advantage of in a suit upon a note given or endorsed to the corporation.</p>

This was an action of replevin, brought to January Term 1859. by David Mairs against R. N. Taylor, to recover one hundred and fifty sheep, valued at $450. The writ was executed by delivering the property to the plaintiff. The defendant pleaded non cepit, and property.

This was an action on the case brought in the court below by Nelson Campbell against H. Lacock, on a contract of guaranty. Held: that he for whose benefit a promise is made may maintain an action on it, although no consideration pass from him to the defendant, nor directly to liim from the defendant: Hind v. Holdship, 2 Watts 104.

This was an appeal from the decree of the court below, confirming the report of the auditor appointed to distribute the proceeds of the sale of the real estate of George P. Yoest. The case was this:— Nicholas Heil and C. F. Lauer obtained a judgment in the District Court of Allegheny county, No. 99 of April Term 1859, against George P. Joest, an exemplification of which was entered in Westmoreland county, on the 9th July 1859.

This was an appeal by the Mayor and Aldermen of the City of Pittsburgh, from the decree of the District Court on the distribution of the proceeds of the sale of the real estate of Arthur McClelland.

This was a foreign attachment in case to July Term 1860, by William P. Watkins against William Woods, a non-resident of Pennsylvania, in which, with his praecipe, the plaintiff filed a special affidavit stating the amount which he verily believed to be due from the defendant, and, with his declaration, copies of the promissory notes on which the suit was brought. Judgment was had by the plaintiff, after the third term, in default of appearance.

Anne Hartzell was put upon her trial for murder, at the September sitting of the Oyer and Terminer for Cambria county. Being regularly arraigned, the impannelling of a jury commenced. After several jurors had been peremptorily challenged by the prisoner, Lawrence Schrote was called as a juror, and challenged peremptorily by the Commonwealth, the counsel for prisoner objecting to such challenge, and filing an exception.

<p>Contract to procure Pension, when valid. — Fraudulent Conveyance of Real Estate, how established. — Intention of Parties, how ascertained.— Evidence against Character of Grantee, when inadmissible.</p> <p>1. A contract by a son to procure a pension for bis father, in consideration of one-half of the yearly pay, is not void because prohibited by the Act of Congress, 7th June 1832 (under which the pension was granted), which provides “ that the pay hereby allowed shall not he in any way transferable or liable to attachment,” &c., “ but shall enure wholly to the personal benefit of the officer, soldier,” &e., for it is not in law or equity a transfer of the pension, nor does the son become in any sense an owner of the pension, but only a creditor of the father’s for the amount agreed to be paid him for procuring it</p> <p>2. The contract is but an agreement to pay a stipulated price for the services of the son, for breach of which his only remedy is by action upon it, in which the pension certificate is only evidence to show that the pension had been procured, and to furnish the measure of damages.</p> <p>3. The father having in his lifetime conveyed Ills farm, the son, after his death, obtainedjudgmentfortheyearly paydue him for six years previous, upon which execution was issued, the farm levied on and sold to the son, who then brought ejectment and recovered against his father’s vendee, on the ground that the deed was made for the purpose of defrauding creditors. The court below charged the jury that “ fraud was not to he presumed,” and that before they could find against the deed they must be satisfied of the fraudulent intent of the grantor, but refused to charge that “ they must be satisfied from the clearest and most satisfactory evidence.” Held, That the charge was not error, for it was the province of the jury to say what weight they would attach to the evidence.</p> <p>4. Though, in order to avoid the deed, the fraudulent intent of the grantor must have existed at the time of executing it, yet that intent is deducible from previous acts and declarations; and therefore it was not error in tbe court below to instruct the jury that “what the grantor intended before, is only material in reflecting the intent at that time; for this purpose, such evidence is material.”</p> <p>5. The offer of the defendant to prove that the plaintiff was convicted of manslaughter, and sentenced for a term of three years to the penitentiary, was inadmissible because irrelevant, and it was properly rejected by the court below.</p>

This was an action of debt on a joint and several single bill, brought by John K. Bryson and Catherine his wife, to the use of said Catherine, v. P. H. Hellen and Benjamin Hellen. The bill on which suit was brought was to Mrs. Catherine Bryson, her heirs and assigns, for $225, dated September 4th 1852, and payable one year after date, in current bank notes, with interest.

This was an action of ejectment brought to September Term 1858, by James Fuller against David Jackson, George Dean, and Rezin Frost, for 240 acres of land in Reaston township. Before the case was tried Jackson died, and the case was tried against the tenants in possession. The plaintiff claimed under a deed, duly executed and delivered to him by David Jackson, dated August 19th 1856, which was placed on record on the 3d day of September 1856.

This was an action of ejectment, brought to September Term 1857, by William Bradley, against Hugh O’Donnell and Francis A. Storm, for a lot of ground in Washington township.

This was a feigned issue to determine the validity of an instrument of writing, purporting to be the last will and testament of John Neel, deceased, in which James Neel and Samuel Neel were plaintiffs, and John Potter, William Ilissan and Mary his wife, Theodore Stouffer and Margaret his wife, James C. Potter and Amanda Potter, Harriet Potter, Charles Miller and Margaret his wife, Robert Potter, Martha Potter, James Potter, Mary Sloan, Alexander Thompson and Mary his wife,…

This was an action of trespass, quare clausum fregit, brought by Samuel M. Clement against Jacob B. Miller, to recover damages for cutting and carrying away a crop of wheat and rye.

<p>Certiorari to the Common Pleas of Lawrence county.</p> <p>This was an appeal, by David Winternitz, from the decree of the court below, awarding to George K. Smith & Co., part of the proceeds of the sheriff’s sale of the personal property of George Gumpertson, which had been made on an execution sued out by him against Gumpertson.</p> <p>David Winternitz obtained judgment against George Gumpertson, on the 5th of April 1860, for the sum of $215.20. On the Í26th of April 1860 he issued a fi. fa., and the sheriff on the same day levied on the goods of Gumpertson (consisting of the stock of a grocery storfe), advertised and commenced his sale on the 4th of May 1860, and sold to the amount of $267.73 out of the stock, returning the balance of the goods to the defendant, which money he returned to the court as ready for distribution.</p> <p>George K. Smith & Co., having a judgment on the docket of James M. Craig, Esq., against David Winternitz, issued an attachment-execution on the 3d of May 1860, which was served on George Gumpertson as garnishee, on the morning of the 4th of May 1860.</p> <p>Gumpertson filed his answer to the interrogatories on the 9th of May 1860, as follows: — “ I became indebted to said David Winternitz by an award of arbitrators (not appealed from) in the Common Pleas of Lawrence county, on April 5th 1860, in the sum of $215 (I think over), and costs of suit. I am not otherwise indebted.” On which the justice gave judgment for plaintiffs, George K. Smith & Co., for $52.66 and costs, which judgment was not appealed from.</p> <p>On the 4th of May 1860, Smith & Co. served a notice of the attachment on the sheriff, and notified him not to pay over the money made on the fi. fa. against Gumpertson to Winternitz, but to pay it, or so much thereof, to them, as would satisfy the attachment. The money was paid into court, and on application of George K. Smith & Co., the court granted a rule to show cause why they should not take out of court the amount of their attachment against David Winternitz, in which George Gumpertson had been made garnishee.</p> <p>The court below (Agnew, P. J.) delivered a written opinion, making the rule absolute, and giving to Smith & Co. the amount óf their attachment, from which decree Winternitz appealed to this court.</p>

This was an action of ejectment, brought April 2d 1857, by Henry PI. Held: never claimed as the southern boundary of the Nazareth tract, south of the line of John Gailey’s land, but had recognised it as his southern line.

This was an action on the ease, in trover and conversion, brought to November Term 1858, in the court below, by J. Ludwig Koethen, administrator of Samuel Steinruck, deceased, against John Kater. The case was this: — Steinruck was indebted to Kater, on the 29th of April 1858, in the sum of $1850, but was at the time unable to pay.

This was an action by Elizabeth Anderson, against the Authorities of the Borough of Birmingham, to recover damages for the appropriation of ground alleged to be hers, for… Held: and did not charge McKeag with constructive notice of dedication, even if in the recorder’s office at the time of his purchase. The objections were sustained, and the offer rejected. This constituted the first assignment of error. The plan was again offered in connection with the evidence of Nath.

<p>Error to the Common Pleas of Allegheny county.</p> <p>This was an action of trespass brought to March Term 1860, by Margery McCreary against James L. Graham, sheriff of Allegheny county, and John H. Mellor, for selling, under a ji. fa., at the suit of said Mellor, a piano, as the property of Dr. William G. McCreary.</p> <p>In 1855 Dr. McCreary purchased the piano in question from Mellor, and took it to New Brighton, Beaver county, where he was engaged in teaching a female seminary, residing with his family in the house, which had been rented and furnished by his mother. From his mother he borrowed, while there, about $600 for the purpose of furnishing and carrying on the seminary. In February 1857, he abandoned the seminary, sold to his mother, in satisfaction of her claim, this piano, with' some other articles of household furniture, and removed with his wife to Canons-burg, where he commenced business as a dentist. Mrs. McCreary, the plaintiff, moved to Sewickly, taking with her the goods she had there purchased from her son, where she remained until June 1858. In July 1857, Dr. McCreary and wife removed to Sewickly, whore they lived with his mother until June 1858, when they all removed to Pittsburgh, and were living in a house rented by him at the time the levy and sale complained of were made.</p> <p>In 1859 Mellor obtained judgment against Dr. McCreary for the price of the piano, and instructed the sheriff to take it in execution, together with a side-table, a bedstead, some chairs, and other articles of household furniture.</p> <p>On the day succeeding the levy, Dr. McCreary gave notice to the sheriff that he claimed the benefit of the three hundred dollar law, and also served a notice on the sheriff, signed by his mother, in which she claimed to be the owner of the piano, and certain other articles of furniture included in the levy. The plaintiff thereupon instructed the sheriff to relinquish all except the piano, which was subsequently sold for $170. This money was brought into court, and an auditor appointed to distribute it, which was done by giving to the landlord $121 for rent in arrear, and $9.96 to Mellor on account, the balance being absorbed by the costs.</p> <p>This suit was then brought as above stated. On the trial the plaintiff, after giving in evidence the levy and sale of the property by the defendants, called Dr. McCreary to prove that befoie the levy he had sold the property to his mother; to which offer defendants objected:</p> <p>1. That as vendor he was the guarantor of the title, and was interested in the result of the cause; and</p> <p>2. That as the property was found in his possession, and sold by the sheriff to pay his debt, he could not be a witness to explain away the fact of his possession, and prove that prior to the levy he had sold and delivered the property to the plaintiff.</p> <p>The court (Mellon, P.-J.) overruled the objections, and admitted the witness, who testified to the facts above stated.</p> <p>The defendants'then offered in evidence the auditor’s report distributing the proceeds of sale, which was rejected by the court below.</p> <p>Defendant’s counsel requested the court to instruct the jury :</p> <p>1. That to make the sale or transfer by W. G\ McCreary to his mother in February 1857 a valid sale, it must have been for a valuable consideration, in good faith and not for the purpose of protecting the property from his creditors, and must have been accompanied by an actual delivery, and followed by a continued possession, distinct and exclusive, in the mother.</p> <p>2. That if W. G. McCreary, with the knowledge and consent of the plaintiff, had the use and visible possession of the piano from May 1857 to the time of the levy, the transfer to his mother, in February 1857, would be regarded as a fraud in law as to W. G. McCreary’s creditors, and plaintiff could not recover.</p> <p>The court charged the jury as follows:—</p> <p>“ The transfer to the plaintiff’s mother must have been made in actual good faith, for a valuable consideration, either present or past, and not collusive to cover up the property from McCreary’s creditors. This possession by McCreary’s mother must be in pursuance of the sale or transfer aforesaid, and exclusive and distinct, and so continued. But if it were so in the first place, and McCreary did not accompany the goods to his mother, but went with his family to Canonsburg, there intending to reside, and remained a few weeks, but afterwards returned with his family to his mother’s, this would not vitiate the transfer originally made to his mother (the plaintiff), if she still continued to have and retain exclusive possession and control of the goods. And this exclusive control and possession, if otherwise right and fair, might exist consistently with the occasional use afterwards, by plaintiff’s wife, of the piano.”</p> <p>Under these instructions there was a verdict and judgment for plaintiff for $180; whereupon the defendants sued out this writ, and assigned for error the admission of Dr. McCreary as a witness, the refusal of the court to affirm the points above mentioned, and the rejection of the auditor’s report.</p>