Volume 41 — Pennsylvania State Reports

<p>Appeal from the Common Pleas of Butler county.</p> <p>This was a proceeding in equity on a bill filed in the Common Pleas, to June Term 1860, No. 1, by James J. McGinnis, Charles Pollock, and John Wilson, trustees and members of the United Congregation of the Associate Church, against Robert Watson, William Moore, and Joseph Sloan, trustees of the United Presbyterian Congregation of Unity Church.</p> <p>The following are the material facts of the case, as contained in the bill and answer filed by the parties:—</p> <p>Unity Congregation, Venango township, Butler county, was organized in the year 1800, the Rev. Thomas McClintock, of the Associate Church, being the pastor. Its members were of the Associate Church, and in ecclesiastical connection with the Associate Synod of North America; and so continued until the union of 1858 between the Associate and Associate Reformed Churches.</p> <p>In 1803, Robert Reason, by agreement in writing, sold to “James Scott and Reuben Irwin, trustees for Rev. MeOlintock’s Congregation, two acres of land, including the meeting-house and spring near it, for the proper use and behoof of the congregation, to have and to hold for ever.”</p> <p>In 1833, the former article being supposed to be lost, Reason, by a second writing, agreed to sell and convey to persons named therein, “ trustees legally chosen for said congregation,” two acres and twenty perches of land, by metes and bounds, “ including the brick meeting-house and burying-ground,” in consideration of $22.55, and to “give immediate possession, and to give the said trustees or successors, for the use of the said Unity Congregation for ever, a complete and perfect title. A postscript to this writing, signed by Reason, states the loss of the former, and that this is signed to secure the Congregation of Unity in the same property, in a slightly different shape. In 1836, Leason receipted for the purchase-money in full. -</p> <p>After the union, by an Act of Assembly approved March 29th 1869, that portion of the congregation entering into the union, were incorporated under the name of “ The United Presbyterian Congregation of Unity Church of Venango township in the County of Butler.” To this incorporation, Leason conveyed the premises by deed dated August 4th 1869.</p> <p>In May 1866, the Associate Synod of North America approved of a basis of union with the Associate Reformed Church, which was sent to the Associate Reformed Synod for approval, and also overtured to the Presbyteries and Sessions of the Associate Church.</p> <p>In May 1857, a large majority of the Presbyteries approving the Associate Synod, by a vote of 104 to 13, adopted the basis, the declaration without amendment, and the argument and illustration, in their amended form, and transmitted it to the Synod of the Associate Reformed Church, then in session, which adopted it in confidence of future amendments being made, to harmonize the faith and practice of the two churches, and that reasonable forbearance will be exercised to those constrained to dissent from any article in the basis.</p> <p>On receipt of this resolution of the Associate Reformed Synod, the Associate Synod reciprocated this -confidence of forbearance, with the proviso that no one be permitted to teach or to act in opposition to the doctrine and order of the church. A committee from each Synod was appointed to make arrangements for the union, who reported to their Synods in 1858. In May 1858, the Synods respectively acted on the report, and finally united on it in a slightly amended form. The preamble consisted of two sections ; one reciting the understanding that the basis should be a term of communion, and the other the forbearance to be exercised toward the brethren who could not fully subscribe to the standards of the United Church. The union was forthwith formally consummated with proper ceremony, under the name of the United Presbyterian Church of North America. The Synods of the respective bodies were continued for certain special purposes. The Associate Synod, including the Moderator, adjourned on its own motion to Xenia, Ohio, in May 1859. By the proof, it appears that seven ministers of the Associate Synod protested against the act of union. In the Minutes 1858, pp. 86 and 88, the protest of Revs. McAuley, Hindman, and others appears to have been read and filed.</p> <p>The Presbytery of Indiana (according to the proof), after consulting the protesting members of Synod, called.' a Synod of the Associate Church, composed of the protestors, to meet in Canonsbutg, Pa., in 1859, the witness, Rev. McAuley, being one who the call.</p> <p>The Presbytery of Clarion, composed of the Revs. Hindman and McAuley, and two or three elders, became subordinate to the Synod of the Associate Church, called and held at Canonsburg by those who protested. That portion of the Unity Congregation which refused to go into the union, petitioned the Presbytery of Clarion for a minister, and accordingly the Rev. John M. Snodgrass was duly installed, and a communion held by him, with the assistance of Rev. McAuley, in August 1858.</p> <p>In reply to the overture of 1856, the Shenango Presbytery of the Associate Church, to which Unity Congregation was attached, reported to the Synod of 1857, its unanimous adoption of the basis of union. The session of Unity Congregation, at a meeting in February 1857, composed of the pastor and the elders, approved of the basis, “with some small emendations.” This basis had previously been read from the pulpit for information ; and pxfinted copies were in circulation in the congregation. No formal meeting or election was held by the congregation, to act upon the basis. Unity Congregation, at the time of union 1858, had about one hundred and thirty members, of whom about seventy-three went into the union, and held possession of the premises in controversy. About fifty-eight, including several suspended members, refused to go into, the Union. The bill, in this case, is presented in behalf of this minority, against the majority of the congregation, to regain possession and control of the church property, on the ground that the grant by Robert Reason was to a congregation professing the doctxünes and adhei’ing to the government of the Associate Church according to its standards as they existed in 1808, and that the union is such a departure from these, that the dissenting members cannot be compelled to follow.</p> <p>On the 19th of July 1860, James Bredin, Esq., was appointed examiner, by whom testimony was taken and filed, and the cause set down for argument at December Term 1860. On the 8th of December, the case was argued, and the opinion and decree of the court (Agnew, P. J.) filed April 6th 1861. Exceptions were then taken to the fox’m of the decree, which, on argument, were overruled, and the following ordered to stand as the decree of the court, viz.:</p> <p>“And now, to wit, December 8th 1860, this cause came on to be heard, and was argued by counsel, and was held under the advisement of the court until the March Term of said court. And now, to wit, March 30th 1861, the court having advised upon the said cause, upon consideration thereof, it is ordered, adjudged, and decreed as follows, to wit: That the said United Presbyterian Congregation of Unity Church, of Venango township, in the county of Butler, and all the membei’s, officers, and trustees thereof, and all the ministers thereof, both stated and temporary, shall be and are hereby strictly enjoined and restrained from the possession and use of said meeting-house and two acres of ground, in the bill mentioned and described, for the purpose of worship as a United Presbyterian congregation; and that the complainants and all other members of the congregation of the Unity Associate Church in the said township and county, who adhere to the ancient faith and practice and ecclesiastical connection of the said Associate Church, as the same was and existed in the said Unity Congregation of the Associate Church, at and before the union of the Associate Synod of North America and the Synod of the Associate Reformed Church, shall be, and are hereby ordered to be restored to the possession, use, and free enjoyment of the said meeting-house and lot, as fully and entirely as they used and held the same prior to the said union, and to have, use, and enjoy the same without any let, hindrance, or molestation from the said United Presbyterian Congregation of Unity Church. And it is further ordered and decreed that the respondents pay the costs of this proceeding, to be taxed and allowed according to the rules and orders of the court.”</p> <p>The case was thereupon removed into this court by the respondents, for whom the following errors were assigned :—</p> <p>1. The court below erred in deciding that a change of doctrine produced a forfeiture of property.</p> <p>2. In deciding that in the basis of union there was a departure from the faith, principles, and discipline of the Associate Church.</p> <p>3. In deciding against the power through the church judicatory to constitute the union.</p> <p>4. In decreeing the exclusive possession of the property to the complainants.</p> <p>5. In enjoining in said decree the ministers and members of the United Presbyterian Church from the use of the building and grounds as a place of public worship.</p> <p>6. In decreeing under all the circumstances in favour of the complainants.</p>

This was an action of assumpsit, brought to March Term 1858, by John J. House and Edward House, doing business as John J. House & Co., against Samuel C. Drennen and Francis Patterson, doing business as Drennen & Patterson.

<p>Mechan-ics’ Lien. — Identity of Building.— What Description necessary.</p> <p>1. A mechanics’ lien is not necessarily void because it does not accurately describe the size of the building against which it is filed; if there be enough in the description of the locality, and other peculiarities of the building, to point out and identify it with reasonable certainty, it is a sufficient compliance with the requisitions of the act.</p> <p>2. The question of identity is generally for the jury.</p> <p>3. Where the claim filed mentioned the county, township, and village in which the property was situated, the road on which it fronted, the owners of the adjoining property, the matei’ials of which the building was constructed, the number of stories, that it had a finished basement, &c., and giving the cox’rect width in front, but the depth incorrectly, it was Held, that this was not such a misdescription, or error, as would avoid the lien, for uncertainty.</p>

<p>Trover for Articles stolen, when sustained. — Statute of Limitations suspended until Prosecution terminates.— Civil Remedy not superseded by</p> <p> Criminal Prosecution. </p> <p>1. Trover lies for the wrongful conversion or appropriation of property by theft, as well as by fraud or trespass: but in the ease of theft, as a general rule, the private action for the value of the property stolen, is suspended until the public prosecution for the offence has been duly conducted and ended.</p> <p>2. Where one stole a large sum of money, and two years after was tried for the theft and acquitted, an action of trover for the sum stolen, brought within sis years after the acquittal, was in time, for the Statute of Limitations was suspended until the termination of the prosecution.</p> <p>3. The public prosecution for the theft does not supersede or in any way control the private action for the value of the thing stolen ; and as the person wronged by the theft is not chargeable with the conduct of the prosecution he cannot be affected by the result, even though it be a verdict of acquittal.</p>

<p>Creation of Trust Estates. — Assignee for Creditors, when a competent Witness for his successor.— Trustee subrogated, to the right of Lien-Creditors paid, by him.— Compensation of Trustees, when reduced on Appeal. — Administrator collecting Rent from Real Estate of Decedent, holds in trust for Widow and Heirs. — Rents not Assets for payment of Mortgage-Debt or Interest.</p> <p>1. An assignee for the benefit of creditors, employed the assignor as his agent, and having reconveyed a part of the property, took mortgages for the purchase-money, which ho gave to the mortgagor to negotiate; the latter sold the mortgages, receiving in part pay certain real estate, taking the title in his own name. Held, that the property so acquired was held in trust for the assignee ; and that after an Orphans’ Court sale of the same by the administrator of the deceased assignor, the assignee is entitled to the proceeds of sale for the use of the assignment creditors.</p> <p>2. The assignee having settled his account and been discharged from his trust, and a successor having been appointed, is a competent witness to prove that property standing in the name of the assignee, was purchased with the trust funds, and is a part of the estate for the payment of the assignment creditors.</p> <p>3. Where an administrator or an assignee advances money to complete the purchase of, or pay a lien on, the trust estate, he is entitled to stand in the place of the creditor whose claim he has paid. McCurdy’s Appeal, 5 W. & S. 397 ; Greiner’s Estate, 2 AVatts 414; Wallace’s Appeal, 5 Barr 103, affirmed.</p> <p>4. AVhere the auditor and the court below allowed charges as proper and reasonable, the Supreme Court will not disturb the decree without affirmative proof of a mistake, although the items may appear to be large.</p> <p>5. Three per cent, commissions is a sufficient allowance for an administrator on sales of real estate where the amount is large; but if peculiar circumstances enhance the labour or risk, the allowance may be five per cent.</p> <p>6. AVhere an assignee (in trust for creditors) reconveys property, taking mortgages for the purchase-money, which he negotiates, and the property so reconveyed and mortgaged is subject to a mechanic’s lien, which is also one of the assignment debts, and the assignee, who is also administrator of the deceased assignor, makes payments on the mechanic’s lien, he but performs his duty as vendor, and must claim credit for the payment in his account as assignee, but he cannot be allowed for the payment, in his administration account, to the prejudice of the assignee of the mortgage.</p> <p>7. An administrator who has collected the rents from the real estate of his decedent, is but a trustee for the widow and heirs. The rents are not assets for the payment of debts, and a mortgagee cannot enforce the payment of interest on his mortgage from the rents so collected.</p>

<p>Statute of Limitations, barred by Endorsement of Payment on Note.— Endorsement by Holder alone not Evidence.</p> <p>1. Endorsements of credits on a note, made by a promissee before the statute has closed upon the right to maintain suit, are evidence of corresponding payments, to remove the bar of the statute, in Pennsylvania, though no longer in England, — but they are not evidence at all unless proved to have been made while the statute was running.</p> <p>2. To toll the statute by evidence of a payment, it must be proven unequivocally that the payment was made on the claim in suit — and where that is not done, the jury is not at liberty to find the payment sufficient.</p> <p>3. The endorsement of payment in the handwriting of the plaintiff or promissee alone is not proper to go to the jury.</p>

<p>Liability of Corporator inferred from his Acts and Declarations.— Original Subscription, how affected by new Contract with Corporation.— Conditional Subscriptions, when valid.— Corporation, how far bound by Acts of President. — Estoppel in pais.</p> <p>1. Where a subscriber to the capital stock of a railroad company, who has been released from the obligation of his subscription, subsequently votes at an annual election for directors, was himself elected a director, acts as director and as stockholder, and pays money to the company — his acts are evidence of a subscription of some kind, and, in the absence of proof of a special contract, warrant the inference that he had re-assumed his original obligation. But they are shorn of their importance where a special contract accounting for them is shown.</p> <p>2. Even if the original subscription had not been released, a new contract between the company and the subscriber, authorizing him to pay in materials at a future time, instead of cash on call, would supersede the original contract.</p> <p>3. Subscriptions made before a company is organized, must be unconditional. But after the organization the company may stipulate with subscribers that they may pay in any manner mutually agreed on; and it can enforce a subscription only according to its conditions.</p> <p>4. The act of the president of an incorporated company, in accepting conditional subscriptions, is binding on the company.</p> <p>5. A payment by the subscriber in cash without call, after a special contract that he might pay in materials, will not estop him from setting up that contract as a defence against a claim to the payment of the whole subscription in cash.</p>

<p>Municipal Liens in Allegheny County. — Divested by Judicial Sale of Property bound by them.</p> <p>1. The Act of -3d February 1824, enacting that municipal assessments in the city and county of Philadelphia should have priority over all other liens, &o., was extended to Allegheny county by Act of 5th April 1844, and is the general law governing municipal liens in the latter county.</p> <p>2. Under this general law these liens are divested by a judicial sale of the property on which they are assessed.</p> <p>3. The special Acts of 5th April 1849, P. L. 341, 8th April 1851, P. L. 371, and 30lh May 1852, P. L. 204, do not change the law in this respect. The assessments authorized by those acts are discharged by a judicial sale of the property, so far as the money realized from the sale will pay the same.</p> <p>4. The phrase — “ shall be and remain a lien until paid and satisfied,” discussed.</p>

<p>Streets, dedication of to Public Use. — Private Town Plot not admissible to affect Rights of the Public acquired by User.— Construction of City Ordinance as to width of Pavements and Cartways. — Right of Corporation to pave Streets dedicated by Owner to Public Use.</p> <p>1. A city street, which had been thrown open to the public and used as a highway for many years, though not of uniform width, was graded and paved as a forty feet street by the city, though in places of a less width, and a lien filed for the costs and expenses assessed against the property of an adjoining lotowner. On the trial of a scire facias thereon, a prirate draft, made a few years before the trial and retained by a tenant of defendants, was offered to show that the street dedicated to public use, was of a less and a uniform width. Held, that the draft was not evidence as to the dedication of the ground thrown open, and that it was properly rejected by the court below.</p> <p>2. Where the city ordinance required streets of forty feet in width, to have twenty-four feet of cartway and sixteen feet of sidewalks, and the ordinance was followed where the street was of that width, but not where it was of less width, the corporation could nevertheless recover: for where the street was not of the width required by the ordinance, the ordinance did not apply.</p> <p>3. If the ground so thrown open and used as a highway had been dedicated to public use, the city had a right to grade and pave it, and recover the assessment therefor from defendants, whether it was a forty feet street or not: and it was not error in the court below, so to instruct the jury, leaving the questions as to the dedication of the ground graded and paved, and the width of the street dedicated, as matters of fact for the jury.</p>

<p>Notice required by Statute, equivalent for. — Evidence of Dedication of Street to Public Use. — Resolution of Councils as to opening Streets, valid without being Recorded. — Municipal Claims, how affected by fraudulent Contract for the Work done.</p> <p>1. Under the Acts of Assembly incorporating the city of A., notice of proceedings on the part of councils to open streets was directed to be published in two public newspapers of the city: the councils having by resolution ordered T. street to be opened, the street regulator prepared plans, &c., of which he gave notice in the only newspaper of the city and also to a tenant in common of D. and wife, against whose property, after the opening of the street, a lien was filed by the city, for the assessed expenses of grading and paving. On the trial of the scire facias thereon it was held: That the notice by publication in one newspaper, together with actual notice to the tenant in common of defendants, was sufficient, and that it was not error to admit the notice so given, in evidence on the trial.</p> <p>2. Where the defendants by deeds for other property on T. street had recognised it as open, and'it was a part of their defence that the street was not “permanent," such as councils were authorized to grade and pave, the deeds were admissible in evidence on the part of the city.</p> <p>3. The resolutions of the councils in reference to opening the streets were admissible in evidence, though not recorded, where the recording was not required either by the Act of Assembly or the City Charter.</p> <p>4. Though the councils advertised for proposals, before the passage of the final ordinance to grade, &e., the city could nevertheless recover, for it was not necessary that the advertisement should be under or entirely subsequent to that ordinance.</p> <p>5. If there was fraud in letting the contract for grading, affecting in any way defendant’s interest, the plaintiff could not recover; but where the contractors took the work at so much per cubic yard for filling; agreeing to allow a drawback or credit for the dirt furnished by the city, and the dirt was procured from another street at no cost to the contractors, the transaction was not fraudulent, though the plaintiffs had, after the completion of the job, presented a bill for the whole amount of the contract price, without the drawback or allowance for dirt furnished.</p>

<p>Partition of Real Estate.— Valuation and Right of Acceptance, how affected by Agreement of Heirs.</p> <p>After partition of tlie real estate of an intestate into three purparts by a jury of seven men, and the confirmation of their report, it was agreed, among the heirs, that the valuation of No. 3 should be reduced, with a corresponding reduction in owelty of partition, at which reduced valuation it was accepted by one of them. Afterwards, on rule to accept or refuse the remaining purparts, the heirs of the eldest son W. elected to take No. 2 at the valuation, when the second son II. bid a higher price therefor, under objection from the heirs of W., who claimed it at the valuation under the agreement; the court below allotted it to II. the highest bidder, and No. 1 to the heirs of W., who did not refuse that purpart or ask that it should be sold. On appeal by them, it was held,</p> <p>1. That the agreement of the heirs related only to purpart No. 3, and that it did not prevent th.e second son, if the highest bidder, from choosing the purpart on which he bid:</p> <p>2. That as the heirs of W. did not at the time refuse to take the purpart allotted to them by the decree of the court, and ask that it should be sold, they could not in a court of appeal object that the purpart was forced upon them, and that it should have been ordered to be sold under Act of Assembly, April 13th 1835.</p>

<p>Equitable Jurisdiction of District Court of Allegheny County in Partnership Cases. — Construction of Contract. — “ Rest and Residue” and</p> <p>“ Stock and Materials” construed.</p> <p>M. being indebted to N.- & Co. and S. & D., gave them a joint bond upon ■which judgment was entered, execution issued and defendant’s property at two furnaces, consisting of pig metal, material for manufacturing iron, merchandise, horses, wagons, mules, cars, tools, &e., sold to S. & D.; afterwards by agreement, N. & Go. receipted to S. & D. for their portion of the proceeds, in consideration whereof, S. & D. were to run one furnace “until all the stock and material” at both furnaces should be worked up, and also to ship to N. & Co. one-half of the metal purchased and one-half of that manufactured, to be applied first to the amount for which they had receipted, and then to balance due them in the judgment; then, if the metal proceeds did not pay the judgment, to “sell all the rest and residue” of the personal property belonging to the furnaces, and apply proceeds to the judgment.</p> <p>On bill in equity for an account filed by N. & Co. against S. & D., the defendants denied that they were bound to account for the personal property remaining, which was sold by them when they stopped making iron, as embraced under the terms “stock and materials,” which they were bound to work up in making iron. The master appointed to state an account, charged the defendants with the proceeds of the said property, deducting their pro rala share, and the report being confirmed, on appeal it was held,: That under the agreement, the defendants were to take charge of one furnace, until the material at both furnaces was exhausted, when the horses, wagons, mules, carts, &0-, diminished only by necessary wear, would remain as property not to be worked up, in the sense the term was used in the agreement; and that, with the unsold merchandise, it belonged to the “ rest and residue” for which defendants were bound to account to the plaintiffs for their proportion.</p> <p>The District Court had jurisdiction in equity of the ease under section 19, Act 13th October 1840, for under the agreement to manage the furnace and account for the plaintiffs’ share of the proceeds, an action of account render would have lain on the common law side of the court to compel an account.</p>

<p>Incompetence of Witnesses on the Ground of Interest. — Effect of Release. —Former Suit, Parties estopped by.</p> <p>1. A county proposing to build a bridge, G. agreed to pay $150 towards it if placed at his mill, at which place it was built by R. the contractor, who having agreed to take G. for payment for so much of the sum due by the county, received from the commissioners an order on G. for $150 and the balance in money: the order not being accepted or paid, it was returned, and afterwards suit brought for that amount against the county by R., on the trial of which II-., a. witness for the plaintiff, was rejected on the ground of interest as a partner in the bridge contract, and when released, again rejected because the costs up to date were not paid; and G., another witness, to whom the money recovered was to go in payment for a lumber bill, also rejected, though released by the plaintiff. Held, that the rejection of the witnesses was not error, for notwithstanding the release, H. was liable for costs and incompetent until they were paid, while G., though released by R., was still interested, and was not competent until he had released the plaintiff.</p> <p>2. Where the county commissioners, without consulting counsel, had, after the return of the order, brought suit thereon against G. and submitted it to arbitrators, in which the county suffered a nonsuit, under advice of counsel, as having no right of action ; and in the suit by R. against the county, the former suit was offered by him as conclusive against the defendant and a final adjudication of the rights of G. and the county, upon which the court below charged that it was evidence but not conclusive, and that if the jury believed the demand against G. had been passed to R., he would not be estopped by the act of the commissioners: it was 7icM: That the charge of the court was not erroneous ; for if under the evidence G. was responsible for the $150 to R. and not to the county (which was a fact for the jury), then the act of the commissioners would not affect R., nor prevent him from maintaining an action against G. for the payment promised by him.</p>

<p>Executors entitled to Credit for necessary Counsel Fees. — Legatee not chargeable with Expense of Collecting his Legacy from Persons with t whom it had been invested by Executor.</p> <p>A testator bequeathed to A. K., a boy then living with him, $200, to be paid when he came to the age of twenty-one years, “ provided he shall so long live with us,” the balance of his estate to his widow for life, and at her death to his two brothers share and share alike; at the executor’s sale, the brothers bought most of the personal propertj’-, and in payment gave each a note under seal to the executors for $100, with the endorsement that it was not to be paid “until A. K. came of age.” The legatee lived with the testator and his widow until the death of both, and when he attained his majority demanded his legacy. Payment of the notes being refused, the surviving executor was compelled to bring suit to recover the amount due thereon. After recovery, he filed his account in the Orphans’ Court, claiming credit for the legacy, and counsel fees for trying the suit, and stating the account, which items were excepted to by the residuary legatees and the account referred to an auditor, who allowed both, but decided that the special legatee should pay three-fourths of counsel fees, because the suit was brought for his use, and the residuary legatees one-fourth: this report being confirmed, on appeal, it was held:</p> <p>1. That it was the duty of the residuary legatees to have paid the legacy to the legatee or to the executor, that the rights of the parties might have been tested in the Orphans’ Court;</p> <p>2. But, that as they compelled the executor to bring suit, a proper credit must be allowed in his account for the necessary expenses, including counsel fees;</p> <p>3. That it was error in the auditor and the court below to charge the special legatee with any part of the expense of recovering his legacy, as it was the duty of the surviving executor to collect the notes and distribute the proceeds; and as the expenses in the Common Pleas and in the Orphans’ Court had been caused by the conduct of the residuary legatees, without fault on the part of the executor, they should be paid out of the fund in his hands.</p>

This was an action of assumpsit brought to August Term 1861, by Oliver Blackburn against Oliver H. Ormsby. The plaintiff declared on two promissory notes of defendant, one for $850, and the other for $2350, both falling due on the 16th of July 1861, and filed an affidavit of his cause of action as required by the rules of court.

<p>Contradiction of Witness by Record of Quarter Sessions. — Judgment not reversed for harmless Error. — Witness contradicted by his former Testimony. — Defective Worhmanshiij, Deduction for in Assumpsit.— Partnership does not result from single joint Transaction.</p> <p>1. Evidence of statements contradictory to what a witness has testified to, on the trial of a cause, are inadmissible to discredit him unless he is first examined as to such statements.</p> <p>2. Where a witness, when asked his reason for leaving a certain county, answered, that he left to engage in his business elsewhere, the records of the Court of Quarter Sessions of that county, showing the finding of two bills of indictments against him for misdemeanors, are not admissible to show that he gave a false reason, where he had not been asked whether such indictments had been, found: for the question was about irrelevant matter, which could not be contradicted, and the records of the indictments as offered, did not contradict the witness.</p> <p>3. But though the admission of the records was error, yet where the testimony of the witness was not beneficial to the defendant or to his defence, plaintiff in error cannot complain that he was injured, and the error being innoxious, the Supreme Court will not reverse therefor.</p> <p>4. Evidence of what a witness had testified to on a former trial between the same parties, and upon substantially the same subject-matter, is admissible in a subsequent suit between them, where the witness is out of the state at the time of the trial, though the first action was replevin, and a stranger to the contract involved in the controversy was included therein.</p> <p>5. Where, in an action for materials furnished, and work and labour done for a steamboat, the declaration was for a quantum meruit, and no special contract was shown, so as to bring the case within the rule of actions on entire contracts, where entire performance or its equivalent must be alleged, and followed by proof showing complete performance, or dispensation therewith by the party entitled to performance; compensation may be allowed the defendant for the defective workmanship of the plaintiff by a deduction from the amount claimed; and the charge of the court that there might be “ a deduction in proportion as the work failed to answer the purpose” was not error.</p> <p>0. Where parties agree to engage in a single transaction or venture for the purpose of making profits, their agreement does not amount to a partnership in such manner as to compel the partner seeking his share of the profits, or payment for work and labour done and materials furnished, in excess of his proportionate share of the venture from the other partner; to resort to an action of account render, but he may recover in assumpsit: therefore it was not error to allow the jury, in the action of assumpsit, to settle the rights of the parties as between themselves. Where the partnership, if it existed, was in a single transaction, and there were no debts due by or in favour of the firm, the plaintiff in such a case could recover in the equitable action of assumpsit that which would make him equal with his copartner.</p> <p>7. The doctrine of recovery on an implied promise in the case of a single partnership transaction or joint adventure, instead of requiring a balance struck and an express promise to pay it, laid down in Gilles v. McKinney, 6 W. & S. 79; Galbraith v. Moore, 2 Harris 86 ; Van Amrindge v. Ellmaker, 4 Barr 281, and Borrell v. Borrell, 9 Casey 492, followed and approved.</p>

<p>Competency of Witnesses. — Preponderating Interest a Question for the Jury. — Application, to exdude improper Testimony, when to bemade.— Conuersations admissible as part of the Res Grestse. — Title of Trustees to Profits of Trust Property.</p> <p>A firm having failed, the friends of one of the partners S., in order to enable him to support his family and educate his minor children, contributed a sum of money, under a deed of trust, to a trustee L. therein named, who was to employ S. as agent to manufacture and trade in his own name, hut not for his own interest or advantage, except that a reasonable support and maintenance was to be allowed him for services rendered. Under this trust, S. started in business and continued for several years, when a former creditor, R., issued an execution and levied upon his stock, which being claimed by L., the trustee, an issue was formed under the Sheriff’s Interpleader Act, on the trial of which B., one of the contributors, and S.,, the defendant in the execution, were offered and admitted as witnesses on the part of the trustee plaintiff, though objected to on the ground of interest. On writ of error it was held:</p> <p>1. That though B. was one of the contributors to the original trust, yet as he was not directly interested in the suit between the trustee and the execution-creditor, and would neither gain nor lose by the verdict, he was a competent witness.</p> <p>2. That S. being interested both for the plaintiff and defendant in the feigned issue, and no certain and preponderating interest having been shown for the plaintiff; was a competent witness; and that where the jury were instructed, that if they found his interest in favour of the plaintiff was greater than any which he had in favour of the defendant, they should reject his testimony altogether ; the admission of the witness was proper.</p> <p>3. Where subsequently it appeared on the trial, that the witness S. had. a wife living, who was interested, not in the fund claimed by the trustee plaintiff, but in certain profits that it might yield after the payment of interest, which would have made him incompetent, on account of the policy of the law; and the defendant did not avail himself of the disability when it was discovered, by asking to have the testimony stricken out, but permitted the ease to close, and argued upon its effect both to the court and jury: held, that he could not afterwards complain, that the court in their charge had refused to instruct the jury to disregard it.</p> <p>4. It was not error to permit a witness to be questioned in regard to a conversation with the trustee at the time of the 'purchase of the goods for the trust, held long before the execution of the creditor was issued, or any controversy had arisen ; for the object of the question'was the disclosure of a part of the circumstances of the purchase, part of the res gestae, and, therefore proper.</p> <p>5. It was.not error to instruct the jury, that if the property levied on was the product of the business contemplated by the deed of trust, representing either the capital originally contributed or the profits thereof, the result would be the same, and the title would be in the trustee.</p> <p>6. The fact that the business was conducted in the name of S., one of the defendants in the execution, would not affect the title of the trustee as against creditors whose debts existed prior to the arrangement of the trust deed; and the instruction of the court to the jury to that effect, if they believed the property levied on belonged to the trust fund, was not error.</p> <p>7. Holdship v. Patterson, 7 Watts 547 ; Brown v. Williamson’s Executors, 12 Casey 338, affirmed.</p>

<p>Orphans’ Court, Decree of not to be impeached collaterally. — Private Sale of Real Estate by Order of the Court, when valid. — Act of April 18th Í853, construed.</p> <p>1. A decree of the Orphans’ Court directing a private sale of real estate, cannot be impeached collaterally, if the court has jurisdiction.</p> <p>2. The Orphans’ Court have power to decree a private sale of the undivided interest of one or more minors, although the parties owning the other interests do not unite in the sale.</p> <p>3. The right, under the Act of April 18th 1853, to decree a private sale, does not depend at all upon the existence of other undivided interests in the land, and the exhibition in the application of a willingness on the part of other parties interested, to take a given sum. The willingness of such parties is one way of determining the propriety of the proposed sale; but it is not the only way. The court or auditor may determine tbe matter for themselves, and in some cases must do so.</p> <p>4. A mistake as to the interest of the parties cannot be taken advantage of to defeat the title of the purchaser, after decree, and the expiration of the time allowed for an appeal.</p>

<p>Right of surviving Partner to Compensation for settling Partnership Business. — Apportionment of Partnership Liabilities. — Power of Auditors in Account Render.</p> <p>1. A surviving partner is not entitled to compensation for winding up the partnership business; nor can the executor of a deceased partner employ the survivor for that purpose, at the expense of the decedents’ estate, unless he is expressly authorized so to do by the will of his testator.</p> <p>2. By the will of one of several partners in a furnace, his executor was authorized “ to co-operate with” the other partners “ in carrying on the business,” “in connection” with them: the executor by a written agreement and contract, transferred the partnership interest and property to the surviving partners B. and C., who were to work up the stock on hand, and to account for the profits and proceeds, after paying all “ expenses, costs, charges, and services.” Afterwards B. filed his separate account (an action of account render having first been brought against B. and C. by the executor), in which, he claimed a large credit for services under the contract with the executor; the auditors on the account disallowed the claim, and their report being confirmed by the court, on writ of error it was held: That B. was not entitled to any compensation for his services in settling the partnership concerns, and that the agreement of the executor, if it authorized any such payment, was void for want of authority; but that the agreement authorized the employment of a manager, for whose services, as well as for those of a clerk and other employees, payment was properly allowed.</p> <p>3. The decedent M., being in partnership with B. in a store, gave, for indebtedness of the furnace concern to the store, a note in his own name, which was that in which the furnace firm did business. In the account, B., as surviving partner of the store firm, charged against M.’s estate the whole' of the note, only one-half of which was allowed him by the auditors and the court. Held, that as between B. and M., the note belonged to them jointly, and that B. was entitled on settlement to his half only.</p> <p>4. The parties to the action of account render1, while it was pending, agreed to withdraw their several demands before the auditors for issues, and that instead, the issues should be considered the points in dispute to be decided by the auditors, who should report the accounts in accordance with the several decisions: the auditors accordingly made their report, stating an account in the aggregate, with the shax-e of each partner as a judgment, which was entered bv the court. Held, that as, under the agreement, the parties intended to vest in the auditors plenary power to deal with all questions that had arisen, and to report accounts accordingly; their report would be regarded as a substantial compliance with the agreement, and not as an excess of power, although they did not state an account under each of the points raised before them, as a strict construction of the agreement would seem to require.</p>

<p>Judicial Sale of Personal Property, not void simply because there is but one Bidder.— When Grier may Purchase —Inadequacy of Price, no Reason for avoiding Sale.— What passes by Judicial Sale of Defendant! s Personal Property.— Officer justified, by Writ improperly sued out.</p> <p>1. A judicial sale of personal property, at which one bid only was offered and taken, and no opportunity given for a second bid, would be fraudulent; but where only one bid could be obtained, at which, after a reasonable effort to get another, the property was struck down, the auction would be valid.</p> <p>2. AVhere the auctioneer himself was the sole bidder, the validity of the sale might be affected, if he were the officer intrusted with it; but not where he was a crier only, and the sale was conducted under the direction of a deputy marshal holding the writ.</p> <p>3. Mere inadequacy of price will not impeach a sale of personalty, though sometimes it is sufficient ground to set aside a sale of real estate; personal property, fairly advertised, cried, and struck down, must go for what it will bring. '</p> <p>4. AVhere the goods of one of several defendants in an execution were seized in the possession of others of them, and advertised and sold as their property under the writ, the sale divests the owner’s interest, and the officer is not a trespasser.</p> <p>5. If a plaintiff issue execution, contrary to his agreement with one of the defendants, the latter has his remedy; but the officer holding the writ, is justified by it, and it was no part of his duty to adjust the equities of the plaintiff under that agreement.</p>

<p>Evidence under Plea of Former Recovery.— Contracts to be construed according to their Spirit and not literally.</p> <p>1. Where suit is brought for the same cause of action as that involved in former suits between the same parties, wherein a recovery has been had, the records of the former suits are admissible in evidence under the plea of “ former recovery,” and the plaintiff is concluded thereby.</p> <p>2. Where the strict construction of a contract would work great injustice, and produce results that could not reasonably have been intended by the parties, it will be construed not by its literal terms, but according to its spirit* and meaning.</p> <p>3. B., by a written instrument, agreed to transfer to 0. So Co. all his claims in a contract with L. for the timber on certain lands; also a contract between him and P. for the manufacture of staves from the timber, C. So Co. agreeing to pay §2000 for the contracts; also all his rights under agreements with other parties, stipulating for the points where the staves were to be delivered, and concluding with the promise of 0. So Co. to pay him §20 per M. for the staves. After the timber was exhausted on the land of L., B. brought suit andrecovered for all the staves at the rate of §20 per M. He then again brought suit for the §2000 as an entirety, in which the defendants successfully plead in bar the “former recovery:” on writ of error it was held: That the instrument must be construed in the alternative, as either an agreement to pay §2000 for the contracts, or at the rate of §20 per M. for the staves made under them, and that the plaintiff having elected the latter and enforced it by suit, could not again recover for the contracts thereby transferred; and that the cause of action being the same substantially, the plea of “ former recovery” in the pending action was an absolute bar.</p>

<p>Bridge Company,power of to erect Piers in Navigable Stream. — Liability of for Consequential Damages. — Acts oflTZh and 1803 as to erection of Bridges over Navigable Streams construed. — Impi-oper Exercise of chartered Privileges redressed only on complaint of Commonwealth.</p> <p>1. A general power given to a company by Act of the Legislature, to construct a bridge over a navigable river, when limited by no express restrictions, includes the right to construct and maintain piers in the bed of the stream, that mode of support being at the time of the grant and since, common and usual.</p> <p>2. In the proper exercise of such a right, the bridge company are not liable for any loss sustained, consequent merely upon the erection and maintenance of the piers, which, though they may be in some degree obstructions to the navigation, are not for that person, alone unlawful.</p> <p>3. A grant of the eminent domain of the Commonwealth, so far as it is not specially restricted, passes the immunity which pertained to it While it was in the hands of the state ; and the Commonwealth having the right to build the bridge, -with piers to support it, without liability for consequential damages, the bridge company have the same rights and immunity.</p> <p>4. The Act of August 14th 1725, relating to a drawbridge on Chester creek, and providing that no bridge should be erected over any river or navi gable stream, so as to hinder navigation, &e., applies only to bridges erected, without authority of law, and cannot take from a subsequent legislature the power to authorize the construction of a bridge with piers over a navigable stream ; and a charter for a bridge company, under the Act of April 3d 1837, is not subject either to that act or to the Mill-Dam Act of 1803, which applies only to dams erected under it, and prohibits only such obstructions as are not legalized by statute.</p> <p>5. The right to erect a bridge under a charter necessarily includes a right to fix the number and location of the piers, at the discretion of the company ; for a wanton abuse or a careless and negligent exercise of that right, resulting in immediate injury to an individual, a private action might be maintained ; but the company are not responsible where the damages result merely from a mistake of judgment in locating the pier.</p> <p>6. The state alone has power to redress a wrong doné to the public by an improper location of the piers, and to compel the removal of the obstructions; it cannot be accomplished by a private suit.</p> <p>7. Dugan v. Monongahela Bridge Co., 3 Casey 310; Bacon v. Arthur, 4 Watts 437, and Plummer v. Alexander, 2 Jones 81, commented on and distinguished ; Monongahela Navigation Co. v. Coon, 6 Barr 382, afiirmed.</p>

<p>Schedule and Affidavit of Loss, not admissible as evidence in Action on Policy of Insurance.— Waiver of Preliminary Proofs, sufficiency of a question of Law.</p> <p>1. Preliminary proofs, though a condition precedent to the right of the insured to recover, may be waived, and henee are only important when made so by the conduct of the insurers, for whose security and information they are required.</p> <p>2. Though the insurer do not object to the regularity of the preliminary proofs, yet the insured cannot prove his loss or the particulars of it by his own statement; he cannot make evidence for himself.</p> <p>3. Where the court permitted the schedule, statements, and affidavits of the plaintiffs relating to their loss, to be read, not only to prove compliance with the conditions of the policy as to preliminary proof, but to go to the jury as primd facie evidence of the goods lost, as to quantity and quality, but not as to value, it was error; for, there being nothing in the policy, making these papers evidence per se, they were not evidence of the goods lost, and should not have been read to or sent out with the jury.</p> <p>4. It is not necessary to prevent such use of the schedule and statements, that issue be taken or notice given before the trial, that their correctness would be called in question.</p> <p>5. The preliminary proofs and their sufficiency are for the court; if not sufficient the cause is at an end, unless they have been expressly or impliedly waived by the defendants.</p> <p>6. The rule is that if the preliminary proofs are waived or are sufficient, such waiver, or sufficiency, in effect strikes the condition requiring them out of the contract.</p>

<p>' .Orphans’ Court, Powers and Jurisdiction of, discussed. — Interest of Heir in Ancestor’s Real Estate subject to Debts of Decedent. — Sheriff’s Sale of Heir’s Interest, passes only what remains after payment of Debts of Decedent.</p> <p>1. In Pennsylvania, the lands of a decedent, like his goods, are assets for payment of debts, and the right of succession has respect only to so much of the estate as remains after payment of debts.</p> <p>2. Where the interest oí an heir in his ancestor’s real estate was sold on execution for his own debt, a subsequent sale of the whole property, made by order of the Orphans’ Court for the payment of debts of the intestate, will divest the title of the purchaser of the interest of the heir at sheriff’s sale.</p> <p>3. W., owning real estate, died leaving eight sons, and the creditors of one of them levied on and sold his interest therein to A., who some time after sold to B.; the administrator of the decedent afterwards, by order of the Orphans’ Court, sold all his real estate for payment of debts to II. & B., who took possession. In an ejectment brought against them by B., as vendee of the interest bought at sheriff’s sale, it was Held,</p> <p>That the sheriff’s saie passed to the purchaser only the interest of the heir after the payment of debts, and that the sale of the real estate by the order of the Orphans’ Court for the payment of debts, vested a valid title thereto in the purchasers.</p> <p>4. Milliken v. Kendig, 2 Pa. Bep. 447, and Luce v. Snively, 4 Watts 396, overruled. Swaar’s Appeal, 1 Barr 93, commented on and explained.</p>

This was a feigned issue directed by the court below, on the application of Madison J. Kennedy, to ascertain certain facts in a controversy between him and Catharine Kennedy, arising out of an action of replevin theretofore pending between them, in which issue said Madison was plaintiff, and Mrs. Kennedy defendant, and in which there was a verdict and judgment for the defendant. All the material facts of the case are contained in the opinion of this court.

<p>Insurance Policy, Conditions in construed.— Condition not to encumber insured Property with Liens when broken.</p> <p>1. In a policy of insurance, used for insuring both real and personal property, a condition that if, during the life of the policy, an encumbrance fall or be executed upon the property insured, sufficient to reduce the real interest of the insurer to or below the value of the property, without the consent of the insurance company, the policy shall be void, applies to both kinds of property, and means that the owner’s interest shall not be reduced by encumbrances below the amount insured without notice to the company.</p> <p>2. Upon such notice of liens upon the property insured, the company would have the right to rescind the policy on repayment of a proportionate part of thff premium.</p> <p>S. Where the insured had liens upon their property to a large amount before purchasing the policy, and during its life heavy judgments were entered against one or the other of them, to an amount beyond the value of the property, without notice to or consent by the company, a material covenant of the policy was thereby violated by the insured, and they were not allowed to recover.</p> <p>4. After notice of liens against his property has been given by the insured to the insurance company, their consent to stand as insurers would be implied if there was no dissent.</p> <p>5. Where the court referred the questions of fact to the jury, instructing them that if they believed the evidence of encumbrances^ upon the property insured both before and after the date of the policy, their verdict should be for the defendant, it was held not to be error.</p>

<p>Jurisdiction of Common Pleas over Estates of Lunatics.— Order of Sale not void, though granted after Death of Lunatic. — Judgments either in rem or in personam, not impeachable collaterally.</p> <p>1. The real estate of a lunatic having been sold on petition of his committee for the payment of debts, in pursuance of an order of court, his heirs afterwards brought ejectment therefor against the vendee of the purchaser, and upon the trial offered to prove that the lunatic died before the order of sale was granted, which offer was rejected by the court: Held, that the evidence offered was properly excluded, for the Court of Common Pleas had jurisdiction over the estate of the lunatic, after his death, and the order of sale was therefore not void for want of authority to make it.</p> <p>2. The judgment or decree of a court of competent jurisdiction cannot be reversed or inquired into in a collateral proceeding except for fraud ; therefore, though the order of sale might have been set aside on appeal from the decree of the court making it, yet after sale, in a collateral action of ejectment, the order will not be inquired into, where the court had jurisdiction, and there was no fraud.</p> <p>3. Under the constitution and laws of Pennsylvania, the Court of Common Pleas has chancery powers in regard to the persons and estates of those non compos mentis, and through the committee exercise the power of a chancellor in the custody and management of the lunatic’s estate, and in applying it to his support and that of his family, to the education of his minor children, and to the payment of his debts.</p> <p>4. After the return of an inquisition finding lunacy, the jurisdiction of the court over the property is complete, either for custody, management, or sale.</p> <p>5. A judgment rendered against a person after his death, is reversible, if the fact and time of death appear on the record, or in error coram nobis, if the fact must be shown aliunde; it is voidable and not void, and cannot be impeached collaterally; still less is a decree in rem, as an order of sale, to be held void or impeached collaterally, when made after the death of the owner of the property.</p>

<p>Suit on Bond. — Measure of Damages. — Penalty in Bond, when considered as Liquidated Damages. — Deed curing Defect in Title, admissible in Action on Bond to secure Consideration for Sale of Land. — ■ Fraudulent Representation and Waiver of Condition, questions for the Jury.</p> <p>1. A bond in the sum of two thousand dollars, with condition that the obligor execute and deliver the deeds for certain lands described, in exchange for other lands conveyed to him by the obligee, is not to be regarded in the nature of stipulated damages, so that on breach, the penalty becomes the measure of damages.</p> <p>2. In an action on the bond against the obligor therein for refusing to eonvey the lands in pursuance of the bargain of exchange, the measure of damages is the value of those lands at the time when they should have been conveyed to the obligee.</p> <p>3. Where the obligor defendant set up a defect in the title of the land conveyed to him by the obligee plaintiff, at the time the bond was executed, a deed curing the defect complained of is admissible in evidence.</p> <p>4. Where fraud and misrepresentation as to the quality of one tract of the land conveyed by the plaintiff was set up in defence, and there was evidence of an agreement on the part of the defendant to waive*inspection of the land and take the risk of its quality upon himself, it was not error in the court to instruct the jury, that if they found that the plaintiff had fraudulently misrepresented his land, and defendant had not agreed to waive inspection and take the risk, they should find a verdict for the defendant; for the questions of fraud, of waiver, of false representations, and of the assumption of all risks as to the quality of the land, were for the jury.</p>

<p>Liability of Accommodation Endorser of Bill or Note to bond, fide holder. — Alterations of Bill or Note, what are material. — Agent when a Witness for Principal. — Residence of Drawee, when given, the proper place for Presentment.</p> <p>1. An endorser who gives credit to a note or bill by his endorsement,, whether with or without consideration, is bound to make it good in the hands of any subsequent endorsee, who receives it for value, and in the ordinary course of business.</p> <p>2. Where endorsees of a bill of exchange took it on for an antecedent indebtedness of a firm, to whom it had passed in the regular course of business before maturity, and gave credit for the amount on their books, the consideration was sufficient in law, and in an action against a prior endorser, they were entitled to recover, notwithstanding the equities which might have existed between the original parties.</p> <p>3. The noting of the residences of endorsers, after their names, upon a bill of exchange, does not affect its identity, nor avoid it as to any of the parties to it.</p> <p>4. The general rule is that an agent is competent as a witness for his principal, except in cases where the principal is sued on account of the negligence of the agent.</p> <p>5. Therefore it was not error in the court below to admit in evidence the deposition of a notary, to prove demand of payment, protest, and notice thereof to defendant.</p> <p>6. Where the bill was addressed to the drawee at a particular house, and was accepted generally by him, the address indicates the place where it is to be presented for payment, and a presentment there is sufficient, as against the drawe^ and endorsers.</p>

<p>Attachment in Execution. — Debt payable in Municipal Bonds, may be attached. — Form of Judgment.</p> <p>1. A debt due to the defendant in a judgment, and payable in the bonds of a municipal corporation, is liable to be seized on an attachment-execution, and the bonds are a proper subject of sale under such a process.</p> <p>2. Where one obtained judgment against a firm, issued an attachment thereon, and attached in the hands of another firm, a debt payable in city bonds, due by them to one of the firm, defendants, and the court entered judgment upon the answers of the garnishees, with leave to the plaintiff to have execution against them for the debt, interest, and costs, and directed the sheriff to demand of them so many of the bonds, as would at their assessed value satisfy the judgment and the costs, but if the garnishees failed to deliver the bonds, then to levy the amount from their own goods and lands, the proceedings under the attachment were proper, and the entry of the judgment thereon was not erroneous.</p>

<p>Declarations of Party to alleged Fraud, when Evidence. — Fraud, actual and constructive. — Fraudulent Intent, proof of.— Who are Bond Fide Purchasers, as against Execution-Creditors. — Specific Points need not he answered, where covered hy the general Charge.</p> <p>C. and wife being in possession of a store, carried on in her name, made an alleged fraudulent transfer of it to D. in consideration of his several promissory time notes, a few hours before the execution of one of their creditors came to the sheriff's hands. After a levy upon the goods, on the trial of a feigned issue between D. as plaintiff, and the execution-creditor as defendant, contesting the validity of the transfer; the deputy sheriff was permitted to testify as to the declarations of C., whom, with his wife, he found in the store when he came to levy ; on writ of error it was held:</p> <p>1. That the admission of C.'s declarations was not error, for he had joined his wife in making the sale, and was one of the vendors still in possession under whom I). claimed, and inasmuch as the circumstances afforded some evidence of concert and collusion between D. and C. and wife, to defraud the creditors of the latter, the declarations of one were evidence against the other.</p> <p>2. Evidence was admissible on the trial of the issue, that C. and wife on the day the first execution was issued, and during the three days previous, had sold and assigned a mortgage belonging to her, conveyed away a lot of ground, and mortgaged other real estate for a large amount, the proceeds of which mortgage when sold wore paid to her, for the purpose of showing a fraudulent intent, though it was not directly relevant.</p> <p>3. It was not error in the court below to charge the jury, “ that if they believed from the evidence, that the sale was made by 0. or by his wife with his assent, for the purpose of hindering, delaying, or defrauding his creditors, and that the plaintiff paid no money but gave his notes, none of which were negotiated, then D. was not such a purchaser under all the circumstances as the law would protect against O.’s execution-creditors.”</p> <p>4. Where the judge in his general charge answers substantially the points presented to him on the trial, it is not error to omit specific answers to each point in detail; and where, under the circumstances, the plaintiff could not have been benefited by a more specific response to his points, a failure to make it, is no ground for reversal.</p>

<p>Construction of Devise,— Creation of Estates for Life and in Tail.</p> <p>A testator “devised and bequeathed” to M., one of his daughters, the one equal ninth part or share of his estate, “ to have and to hold to her for and during the term of her natural life, and at and immediately after her decease,” “ to her children in fee; but if she should die without having children, then to her brothers and sisters, their heirs and assigns for ever.” By directions in the will, certain lots of land were set apart and conveyed by the executors to her in fee, she giving bonds and mortgage thereon to the executors, the proceeds of which they were to hold in trust for her during her life, and at her death for her children, if any, and if not, then for her brothers and sisters. At the time the will was made, and up to the death of testator, she had no children, but by a subsequent marriage .had children — she then with her husband filed a bill in equity for the cancellation of the bonds and mortgage, as given by mistake, for the reason that under the will she took an estate tail, which bill was dismissed by the court below: Held, that she took but a life estate under the will; that the bonds and mortgage were, therefore, not given by mistake; and that the bill filed for their cancellation was properly dismissed.</p>

<p> Reciprocal Rights and Duties of Bankers in remitting a.nd collecting Drafts of third Parties. </p> <p>1. Where a banker in one city acting only as an agent to transmit, sends the draft of a third person to a banker in another city, for collection merely, and no advances are made nor new credits given on account of the draft, and there is no evidence of the mode of dealing between them, the collecting banker cannot, on failure of his correspondent, credit the proceeds of the draft to his account, but is liable therefor to the owner.</p> <p>2. But if a collecting bank regards and treats a remitting bank as the owner of the negotiable paper which it transmits for collection, and has no notice to the contrary, and upon the credit of such remittances made or anticipated in the usual course of dealing, balances are from time to time suffered to remain in the hands of the remitting bank, to be mot by the proceeds of such negotiable paper, then the collecting bank is entitled .to retain against the real owner, for the balance of account due from the remitting bank.</p>

<p>Exceptions to Title common to both Parties, inadmissible. — Evidence improperly excepted, to on the Trial, not reviewed on Error.— Conveyance absolute or conditional, when a Question of Fact.— Unrecorded Mortgage, effect of as against subsequent Lien-Creditors. — Notice Actual and Constructive. — Purchaser of equitable Title, how far subject to prior Equities. — The ruling in Chew Y. Barnett, 11 S. & R. 389, Reed y. Dicky, 2 Watts 459, and Kramer v. Arthurs, 7 Barr 165, doubted.</p> <p>1. An exception made on the trial of an ejectment, to the admission of a deed from the commissioners of a county for lands sold for taxes, (under which plaintiff claimed title) on the ground that the sale was void, because a number of tracts had been assessed and sold together, is not valid, where both plaintiff and defendants claimed under the same person, in whom, the title conveyed by the commissioners’ deed had become vested.</p> <p>2. Where the plaintiff’s vendor was released by him from the covenant of general warranty in his deed for the land in dispute, by release acknowledged before a city alderman, and objection was made to the witness only, but not to the proof of the instrument of release, the defendants cannot thereafter object that the release was not legally proved, nor that it was improperly admitted in evidence.</p> <p>3. By assignment dated 12th February 1852, M. assigned, sold, and transferred to B., the vendor of the plaintiff, his entire interest under an article of agreement and contract for the purchase of several tracts of land: at the time M. was largely indebted to B.; and, money was paid as a consideration for the assignment, nor did it appear that' any part of the debt was paid by the transfer, but M. still remained in possession: In March following, H. recovered judgment against M., and afterwards, under execution issued thereon, bought M.’s equitable title and was one of the defendants in an ejectment, brought by B.’s vendee, who claimed under the assignment as an absolute conveyance. On the trial the defendants contended that it was not absolute, but a mere security for the repayment of money advanced. The court below declared it absolute and did not submit the question to the jury: Held, that though there was no express agreement that the assignment should be held as a security merely, yet, whether the conveyance was absolute or a mortgage, depended upon its attendant circumstances: and where the assignment was without consideration, no money nor any part of M.’s indebtedness being paid, and there was evidence that the assignor remained in possession after the assignment, and of B.’s declarations tending to show that the assignment was not absolute, there was sufficient evidence to justify a submission to the jury, to find whether it was not intended as a security for a debt: and that the refusal of the court below so to submit it was error.</p> <p>4. If the assignment was intended as a security for a debt then due from M. to B., or for future advances, it was a mortgage, and whether an agreement to that effect was proved or not, was not material: if a mortgage, it was an unrecorded one, and inoperative as against a subsequent purchaser without notice.</p> <p>5. Whether or not the purchaser at sheriff’s sale had actual notice of the assignment by M. to B., was a question for the jury, and was properly submitted as such by the court below.</p> <p>6. Where M., at the date of the sheriff’s sale in 1856, had no recorded title (the assignment of 1852 and contract assigned not having been recorded), other than an equitable one under another article of agreement, dated 31st July 1854 and recorded, which referred to the assignment previously made by M. to B: Held, that the article of agreement was constructive notice to the purchaser, of the character and extent of M.’s title to the land, if such notice was necessary.</p> <p>7. The doctrine that the purchaser of an equitable title takes it subject to all prior equities and trusts, in every event, whether he had notice of them or not, asserted in Chew v. Barnett, 11 S. & R. 389, Reed v. Dickey, 2 Watts 459, and in Kramer v. Arthurs, 7 Barr 165, but denied in Bellas v. McCarty, 10 Watts 13 ; doubted, as not in accordance with the recording acts.</p> <p>8. If the assignment of February 12th 1852, was but a security for the repayment of money advanced, it would not necessarily be postponed to the judgment held by II., nor does it follow that the plaintiff would have no right to recover, though it might affect the nature of his recovery: hence, it was not error in the court to refuse to affirm defendant’s point, that the assignment, being made before the judgment of II., was but a security, was in effect an unrecorded mortgage, and must be postponed to the judgment of II.</p> <p>9. Where a suit had been brought in another county against M. and B. as alleged partners, by a former employee of M.’s, under an alleged joint contract for services, held, that the plea therein by B., traversing the joint contract merely, and not proving that the employee was in possession of the land under M., nor contradicting B.’s testimony in the ejectment, was not admissible in evidence and was properly rejeoted.</p>

<p>“ Religious^or Charitable Uses,” in the Act of April 2>(yth 1858, § 11, relative to Bequests and Devises to Corporations, &c., construed.</p> <p>A legacy to a religious society is a religious and also a charitable use, under the Act 26th April 1855, and is therefore void, where the will was executed but three days before the testator died, because within the provisions of the 11th and 15th sections of that act, which prohibit any such bequest, unless the will had been executed at least one calendar month before the decease of the testator.</p>

<p>“ Public Buildings,” in Act of Assembly, defined. — Acts of Assembly relative to the Organization of Armstrong County, and the erection of its Public Buildings, construed. — Public Rights not barred by Statute of Limitations or lost by permissive Trespasses or Encroachments, nor by Possession which is not adverse.— Counties not authorized to legislate.</p> <p>Under Act of Assembly organizing the county of A., trustees were appointed to hold title to the necessary ground for the public buildings, and by a subsequent act, were empowered to accept the offer of a citizen, who hold title under proprietary grant of 1775, to give the county, land to be divided into town lots and held for the benefit of donor and the county jointly, and also authorized to lay out a convenient lot not exceeding two acres for public buildings: the sons and devisees of the donor afterwards conveyed a two acre lot to the trustees, who conveyed to the county, after the court-house and jail had been built thereon. Subsequently in 1821, the legislature incorporated an academy, and enacted, that its trustees have leave to build it on any of the lots reserved for the use of the public buildings. The academy was then erected on the two acre lot. In 1851, the commissioners of the county were authorized to divide the two acres into town lots, and to sell and apply proceeds to the erection of new county buildings elsewhere. After the sale, the academy brought ejectment against the purchaser of the part claimed by it, by virtue of the legislative grant of 1821, and under the Statute of Limitations. Held:</p> <p>1. That an academy was not a “ public building” within the meaning of the original Act of Assembly, relating to the incorporation of the county, and the acceptance of the land given for the erection of public buildings; and, therefore, the two acre lot was never held upon any trust for an academy.</p> <p>2. That the Act of 1821 was but a mere legislative license to build the academy on the lot, belonging not to the state but the county, and subject to the paramount trust of the county for public buildings, a license which was only a contract for quiet enjoyment during the pleasure of the county, and the tenancy of the academy under it only a tenancy at will.</p> <p>3. Counties possess no legislative powers, and are only quasi corporations.</p> <p>4. That title could not be claimed by the academy under the Statute of Limitations, for public rights cannot be destroyed by long-continued encroachments or permissive trespasses, and because the possession was not adverse to, but under and according to the title of the county.</p>

<p>Prior Executions, when and for what Gause postponed to subsequent Writs of Fieri Facias.</p> <p>1. "Where the goods of a merchant levied on under an execution, were not removed, nor the store closed, but was put in the hands of a clerk at the instance of plaintiffs’ attorney, with privilege to sell as usual and account for the proceeds to the sheriff, and the clerk, with defendant, did sell goods up to the sheriff’s sale, keeping no account of goods sold but only of the amount of money alleged to have been taken on sales, the execution will be postponed to one subsequently issued, though the levy in the first execution was not for security only and there was no unnecessary delay in executing it.</p> <p>2. It is in contravention of the law to permit the possession and control of the property of a defendant in an execution to remain after levy as before, or to_ sell at private sale, it being not only fraud in fact but fraud in law; and if done in pursuance of arrangements made by the execution-creditor, he will be postponed to a junior execution.</p>

<p>Municipal Subscription to Railroad Companies, how affected by subsequent Alteration of Charter. — Power of Municipal Corporation to subscribe for Stock.</p> <p>By Act of Assembly of April 4th 1837, the Pittsburgh, Kittaning and Warren Railroad Oo. was incorporated, and under it, any incorporated company, city, or borough had authority to subscribe for the stock “as fully as any individualthe charter was to be null and void if the road was not commenced within five and completed within ton years from the passage of the act. Before the expiration of that time, the supplement of 16th March 1847 was passed, extending time for commencing until 1st June 1852, and for completion until 1st June 1862. By supplement April 15th 1851, the time for commencing was extended to June 1st 1855, and for completion until June 1st 1865. By another supplement, 14th April 1852, the name of the road was changed to The Allegheny Valley Railroad Co., certain counties were authorized to subscribe, the counties and cities subscribing to pay by transfer of stocks held in other companies, and removing the disability of the acts limiting the corporate debt of the cities of Pittsburgh and Allegheny, so that neither city should be prevented from subscribing. The city of Pittsburgh, by ordinance of May 7th 1852, subscribed for 8000 shares, and issued bonds for payment of subscriptions. On application by a bondholder for mandamus to compel the payment of interest, &c., an answer was filed denying the right of the city to subscribe, or to issue bonds in payment of subscription. Held:</p> <p>1. That the right to subscribe under the Act of 1837 did not expire in consequence of the failure to commence and complete the road within the time mentioned in the act, for it was in the power of the legislature to waive the right of the state to resume the privilege offered, which was done by the supplements of 1847 and 1851, extending the time within which a company might be formed to accept the franchises offered in the original charier, which was never withdrawn,'and after acceptance by the company had not been lost by non-user.</p> <p>2. That the change by the legislature of the name of the railroad company did not affect its identity, for no other company was ever organized under the original act; nor, when the Act of 1852 relieved the company from the duty of fixing the termini of their road at certain points named in the original act, could a subscription made afterwards be invalidated because the termini had been changed.</p> <p>3. The power to subscribe gave the power to create a debt and to give an evidence of it. The city was to subscribe “ as fully as an individual,” and as an individual, by agreement with the company, could have given his bond for his subscription, so could the city.</p> <p>4. A municipal corporation may give its bond for a legal and authorized debt, under its general corporate powers; the power to execute and issue bonds, &c., belongs to all'corporations, and is inseparable from their existence ; it is for this they hold a common seal.</p> <p>5. Though grants to corporations are to be strictly construed in favour of the public, this is a rule to be invoked in seeking what has been given — it is a reason for holding that an authority has not been conferred upon a corporation, if the words of the grant are not clear and unambiguous; but not for stripping a power given of its natural and usual incidents.</p> <p>6. A municipal bond for the stock of a railroad company, if invalid, is so, not because the municipal corporation has no power to issue bonds, but because such a subscription is outside of the power of the corporation: but when the legislature has authorized the subscription, 'it becomes a debt like any other, and may be secured and evidenced in the same way; consequently the city had power to make the subscription to the stock of the railroad company, and the bonds were lawfully issued.</p> <p>7. Thomas v. The Commissioners, 8 Casey 218, Hamilton v. The Councils, 10 Id. 496, Armstrong v. Commissioners, 1 Wright 277, and Middleton v. Same, 1 Id. 237, affirmed, as expressing the present opinions of the court on all points therein raised and decided.</p>

<p>" Heirs” in Devise of Remainder, presumed to be a Word of Limitation. — ■ Presumption, how destroyed.— Creation of Estate in Fee by Will.</p> <p>A testator gave-“to his son J., during his natural life and that of his present wife, the tract of land whereon he now lives,” &c., and directed “ that after the decease of my said son and his present wife, that the said tract of land descend to their heirs jointly, and their heirs and assigns for ever, or to such of them as may be then living.” After the death of J. and wife, in partition of the land between the children and grandchildren (some of the children having died before their parents, leaving issue), the court, on petition of one of the children living at the death of J. and wife, ordered partition among that class, which excluded the grandchildren, on the ground that the testator, by his use of the word “ heirs” then living, meant “ children.” On appeal it was held:</p> <p>1. That under the devise to J. and wife for life with remainder in fee to their heirs, they took-a freehold of inheritance.</p> <p>2. That when a testator uses the word “ heirs” in a devise of a remainder, the presumption is, that he uses it in its ordinary legal sense, as a word of limitation and not of purchase.</p> <p>3. That this presumption cannot be overcome, unless it is so plain as to preclude misunderstanding, that the testator intended to deviate from the general rule.</p> <p>4. That the addition by the testator of the words “then living” to the word “heirs,” was insufficient to cause the latter to give way; for superfluous or inconsistent words or doctrines in a will, will not suffice to reduce the words “heirs” or “heirs of the body” to words of purchase.</p> <p>5. That J. and wife having a joint estate in fee simple, at their death it descended to their heirs under the intestate laws, and therefore included their grandchildren, whose parents died before them, and that the decree of the Orphans’ Court, excluding the grandchildren, was error.</p>

<p>Trover for Goal carried away ly Mistake. — Measure of Damages.</p> <p>1. Trover lies for coal mined upon, and carried away from another’s land by mistake.</p> <p>2. The measure of damages is the fair value of the coal in place, and such injury to the land as the mining may have caused.</p>

<p>Private Sales by Administrators. — Judicial Sale Notice of legal Transfer of Personal Property. — Assignment of Decedent’s Estate by Administrators.— Sale of Partner’s Interest in Firm Property. — Bill of Exceptions to Evidence, form of.— Creditor when a Witness in Feigned Issue.</p> <p>L., one of two partners, died leaving a will, bqt without appointing executors, when the widow, a son, and another, became administrators cum test, annexo; the son then purchased from the administrators his father’s partnership interest, at private sale, neither paying nor giving security therefor, and subsequently bought out the .interest of his father’s partner; afterwards he gave judgment to the administrators for this debt, and was sold out at sheriff’s sale, the administrators becoming the purchasers, for whom, he carried on the business as agent. The administrators becoming embarrassed, made an assignment for the benefit of the decedent’s creditors to W., the former partner of deceased, an execution being then in the sheriff’s hands against the son, and a levy made on his interest in the stock. In an issue to try the title thereto, in which W. the assignee was plaintiff, and the execution-creditor of the son the defendant, it was Held,</p> <p>1. That though the private sale by the administrators to one of themselves was grossly irregular, yet it could only be avoided by the heirs or creditors of the decedent, and not by a creditor of one of the heirs.</p> <p>2. But that where the sale is made and judgment taken for the purohasemoney, the administrators may buy back the stock at sheriff’s sale upon their own judgment, and may permit one of themselves, the son and original purchaser, to carry on the business under the same sign and trade-mark be had used when carrying on the business in his own name ; the judicial sale was legal notice of a change of property, and no correspondent change of possession, and of the indicia of ownership, were needed to complete the effect.</p> <p>3. It was not error in the court below, on the trial of the issue, to charge the jury in effect, that the assignment vested a valid title to the goods assigned in the assignee plaintiff, and that he was entitled to hold the possession, for, though an execution against the son was in the hands of the sheriff at the time of the assignment, yet the goods belonged to the estate of. the decedent; and the execution was no lien and no obstacle to the assignment.</p> <p>4. Though the interest of a copartner in partnership property may be taken in execution and sold for his debts, yet the sale is subject to the rights of partnership creditors, and the purchaser is entitled to an account, and not to the possession of the goods.</p> <p>5. A bill of exceptions must certify the evidence upon which it is founded, or the Supreme Court will not reverse the judgment rendered in the court below, though it may be apparent that there was error in the ruling com-of in the rejection of evidence offered on the trial.</p> <p>6. A judgment-creditor of the defendant in execution may be a witness in a feigned issue, under the Sheriff’s Interpleader Act, where he has no direct interest in the event of the suit; but where a judgment-creditor was rejected on the trial on the ground of interest, and the bill of exceptions did not contain what he was called to prove, the Supreme Court, on writ of error, will not reverse, though harm may have been done to the defendant in the issue by the rejection.</p>

<p> Adultery, when Evidence of undue Influence over Testator. </p> <p>1. The influence of a lawful relation over testamentary dispositions is not prohibited by law, except when unduly exerted over the very act of devising ; but that of an unlawful relation, is naturally and ordinarily unlawful, in so far as it respects testamentary dispositions favourable to the unlawful relation and unfavourable to the lawful heirs.</p> <p>2. In a feigned issue to determine the validity of a will, it may be shown by the contestants that, at the time the will was’made, the testator was living in open adultery with the mother of the children to whom he had devised the bulk of his estate ; and that fact, taken in connection with the devise, is evidence of undue influence exerted by her over the testator, that may justify a verdict against the validity of the will.</p>

<p>Rescission in Equity of Contracts for false or fraudulent Representations. ■</p> <p>1. An executory contract in which there has been a total failure of consideration will not be enforced either at law or in equity: hut when the contract is executed, a court of equity will not interpose to rescind it except for fraud or palpable mistake.</p> <p>2. But where the buyer of an article, which he finds in market, has a full opportunity to examine it, and the means of information relative to facts and circumstances affecting the value of the commodity are equally accessible to buyer and seller, there being no warranty and no concealment by the seller of facts which he was bound to communicate, a mere false assertion of value is not a fraud or mistake in the legal sense of those terms.</p> <p>3. B. having invented and obtained a patent for an “improved bedstead fastening,” made an assignment of it to R. for two states, in consideration of which R. conveyed to him two town lots: failing to sell the patent, R. tendered a reconveyance of the patent and demanded his lots, and upon B2s refusal to accept or reconvey, filed a bill in equity for the cancellation of his deed for the lots, and proved B.’s declarations as to the value of his invention as made to others but not as made to him; also, that B. did not use it on beds made by himself in his business as a cabinet-maker; also alleging, that he, R., had been deceived by false representations contained in the specifications and patent. The court below dismissed the bill: Held, that as B/s commendations of the invention were not used to deceive the purchaser, and as they were not such, whether expressed, or implied from the patent and specifications, as would entrap a reasonably prudent man into the purchase of a worthless article, there were no grounds for the interference of a court of equity, and that there was no error in the decree of the court below.</p>

<p>Presentment for Payment and Refusal, what are sufficient.— Within what time Notice of Non-payment must he given. — Defence to Action against Banker for negligence in demanding Payment of Note. — Notice to Endorser, when sufficient.</p> <p>1. It is a sufficient presentment, demand, and refusal of payment of a note, or a legal equivalent thereto, that it was in the banking house where it was made payable on the day it fell due, and that' there were no funds of the maker there, nor other provision for payment.</p> <p>2. Where a note fell due on Saturday, and the residence of the holders and endorser, and the place of payment, were all in the same city, written or verbal notice of non-payment might have been given to the endorser personally; if written, it might have been left at his dwelling or place of business, either on that day or the following Monday.</p> <p>3. In an action by the owners of a note against a banking firm at whose office the note was made payable, for neglect in not demanding payment from the maker, and in not giving notice of the non-payment thereof to the endorser, by reason whereof he was discharged and the plaintiffs lost their debt, it is a sufficient defence to show that the maker had no funds in the banking office when it fell due, and that notice of dishonour was actually received in due time by the endorser.</p> <p>4. Where a notary received the note for protest from a clerk of the banking office where it was payable, between ten and eleven o’clock on the night of the day it fell due, and he placed the notice of protest then made under the door of the endorser’s residence, before twelve o’clock, at the request of his daughter, who took it up and placed it on her father’s desk, so that he got the notice, it was sufficient, as the issue was upon the neglect of the defendants in not giving notice to the endorser of the non-payment of the note.</p>

<p>Copy of Town Charter, when admissible in Evidence. — Parol Revocation of Grant of Land dedicated to Public Use.</p> <p>1. A sworn oopy of a town charter granted in 1793, is admissible in evidence after proof of the existence and loss of the original and a bona fide search for it, where it was most likely to be found.</p> <p>2. Two charters were granted by the founder of a town, 21st March 1793, both being witnessed, but only one acknowledged and recorded, January 6th 1800: after his death they came into the possession of his widow, who gave them to a son-in-law, from whom in 1832, both were obtained, copied, and returned to him. In an action of trespass, involving title to land allogea to have been reserved by the charters, a sworn copy was offered in evidence, after proof of the existence of the originals, their loss and an unsuccessful search for them by their depositary and the burgess of the town, which copy was rejected by the court: Held, That after the proof of the existence of the originals, and of true copies, the loss of, and a bond fide but unsuccessful search for the originals, secondary evidence of the contents of one deed, consisting of a sworn copy, was admissible.</p>

<p>Authority of Assistant Lazo Judges. — Mandamus.—Petition for, when insufficient. — Issues of Fact to be decided before Judgment entered,.— Salaries should be fixed by law.</p> <p>1. An assistant law judge of the Court of Common Pleas, required to be learned in the law and vested with the same authority as the president judge, has power to try a mandamus against a city officer to compel his performance of an official duty, notwithstanding the Mandamus Law requires the presence of the president judge.</p> <p>2. Where the relator presented a petition, averring that the city councils had passed an ordinance to pay him $50, to apply to his services as high constable, and that the mayor, in violation of his duty, refused to sign a warrant on the treasurer therefor, but did not set forth the law or ordinance imposing that duty on the mayor, or show it on the trial of the issues of fact raised, or on writ of error, it was held: That he had shown no ground for the mandamus asked for in his petition, and that it was error in the court below to award a peremptory mandamus thereon.</p> <p>3. Where the relator averred that he was duly elected and qualified as high constable, which the respondent denied, because he had not given security as required by Act 8th April 1833, $ 15, the issue of fact thus raised should have been decided by a jury; and, as it was not, judgment should not have been entered against the respondent.</p> <p>4. As a general principle, an ordinance by city councils to pay a municipal officer his salary, should be founded upon another ordinance fixing the salary of the office: for public officers ought to have a fixed compensation, so as not to he dependent upon councils, who are hut trustees of public functions, and ought not to vote money, as matter of grace or favour.</p>

<p>Conditions in a Deed construed. — Remedy for Breach, by Forfeiture of Estate.— Waiver of Forfeiture..</p> <p>1. A condition that destroys an estate is to be taken strictly, and if once dispensed with in whole or in part, is dispensed with for ever, for it is entire and cannot be apportioned except by act of the law.</p> <p>2. When language in a deed imports a condition merely and there are no words importing ah agreement, it cannot be enforced as a covenant, but the only remedy is through a forfeiture of the estate.</p> <p>3. A forfeiture may be waived by the party who has the right to avail himself of the breach of a condition, by acts as well as by express agreement.</p> <p>4. A city corporation by deed conveyed certain water lots to a company for a nominal sum, on condition that they should within one year erect a breakwater in front of the lots, under direction of city councils, and within two years a substantial bloomery thereon: the breakwater was built, but failing to erect the bloomery within the time, the city councils permitted them to build a blast-furnace instead, and extended the time for construction: no furnace was built, and the city brought ejectment for the lots, which, meanwhile, after the failure of the company, had passed into other hands: Reid, That the city was not entitled to recover, for the grant was in fee simple with but two conditions annexed, one of which had been performed, and the other expressly dispensed with, and waived by the grantor, plaintiff.</p>

This was an action of ejectment brought in the court below by Peter H. Taylor against Abdin Abbott, for five acres of land in Crawford county. The case was this :— Sometime in 1835 or 1836, the defendant, Abdin Abbott, and his brothers Ananias and John, entered into articles of agreement with the executors of Daniel Perkins, for the purchase of two hundred acres of land at two dollars and a half per acre.

This was an action on the case brought in the court below by Lewis Peterson against Samuel M. Kier, who survived Thomas Kier. The plaintiff declared in trover for 50,000 gallons of carbon oil or petroleum, of the value of $20,000, to which the defendant pleaded not guilty. The oil, for which the suit was brought, was the unexpected product of certain wells which had been sunk by the defendant on land leased to him by the plaintiff, for the purpose of manufacturing salt.

<p>Error to the Common Pleas of Fayette county.</p> <p>This was an action of ejectment brought, December, A. d. 1856, by Fidelio H. Oliphant against Anthony Hill, for an acre of land and a woollen factory in New Haven, Fayette county.</p> <p>The material facts of this complicated case are as follows:— In 1842 the property in dispute belonged to Thomas Foster. To No. 60, December Term 1841, Nathaniel Ewing and others obtained a judgment against Foster for $13,141.66. On this judgment a. fieri facias was issued, which was levied on this property. Inquision waived, and on a venditioni exponas to No. 86 September Term 1842, the property was sold, on the 13th day of July 1842, to James Veech, Esq., for $7600, to whom the sheriffs deed was made.</p> <p>There was other property sold, and deeds therefor made to James Veech, Esq., who held the whole of it in trust for the plaintiffs in the execution, or, as was averred by the defendant, subsequently for Samuel Blocher et al. For the proceeds of these sales, N. Ewing, Esq., the plaintiff in the judgment, gave to the sheriff the following receipt:—</p> <p>“Nathaniel Ewing, Joseph Pennock, James Paul, and others, v. Thomas Foster, with notice to Isaac Nixon, Jr., and others. In the Common Pleas of Fayette county, venditioni exponas, No. 86, September Term 1842. December 1st 1842, I, for myself and the other plaintiffs, acknowledge to have received from 'William Morris, Esq., sheriff, full satisfaction for the proceeds of the sales on this writ. N. Ewing.</p> <p>“$11,094.”</p> <p>Judge Ewing held other claims against Foster, amounting to over $8000, and was responsible, as surety, for him for considerably more.</p> <p>Before the sale an arrangement was entered into between Judge Ewing and Samuel Blocher and others, that if the property was bought in for him (Ewing) they should have it upon paying, or securing to be paid to him, the amount of his liabilities, not exceeding $30,000. Under this arrangement they went into possession; and on the 1st of December 1842, gave a mortgage to George Hogg for $15,500, for a part of the money they were to secure. The $30,000 also covered the purchase-money of a farm sold at the same time, the deed for which was made to George Hogg, who held it to secure the payment of $6000. The balance of the money was neither paid nor secured.</p> <p>To enforce the payment of this balance of purchase-money the following ejectment was brought, October 19th 1843 :—</p> <p>“James Veech, Esq., v. Samuel Blocher, Isaac Shoemaker, Joseph R. Taylor, and Thomas R. Davidson. No. 134, December Term 1843, Mr. Davidson appeared for himself and disclaimed title, and for the other defendants, pleaded not guilty. By direction of Judge Ewing this cause was certified into the special court, June 1844. “ June 26th 1844, by consent, judg-</p> <p>ment for plaintiff against all the defendants (except Davidson). For conditions, see paper filed”; but, according to the prothonotary, no paper was filed.</p> <p>On this judgment a writ of hab. fac. poss. was issued on the 30th .of March 1846, by virtue of which, on the 29th of April 1846, the possession of the property was delivered by the sheriff to James Pauli, to whom’Mr. Veech had transferred the title by deed, dated October 25th 1845. Mr. Pauli, having been one of the securities to Foster, in the mean time- had paid to Judge Ewing and others all the debts, to secure which the title was held.</p> <p>In some of the subsequent suits a difficulty arose in regard to the non-filing of the paper referred to, as containing the conditions of the judgment, and on the 14th of March 1857, a rule was obtained to show cause why the said paper should not be filed nunc pro tunc, as also the bond fixing the amount. On the 4th September 1861, the court directed this paper to be filed as the conditions which were annexed to the judgment:</p> <p>“Veech v. Blocher et al. Ejectment. June 25th 1844, defendants, except Davidson, confess judgment to plaintiff, to be released on the payment of $ and interest from (as per judgment-bond), and costs of suit, stay of execution for one year — and if within that year defendants can sell,' and wish to make title, the deeds now made to be given up, upon said sum of money, interest, and costs, being paid or duly secured.”</p> <p>This action of ejectment, No. 134, December Term 1843, was brought while the Act of the 5th of May 1841 was in force; placing ejectments brought to enforce the payment of purchase-money on the same footing with other ejectments.</p> <p>Under the saving clause of the Act of the 21st April 1846, the defendants, Blocher and others, brought the following action of ejectment, to repossess themselves of this property:—</p> <p>“ Samuel Blocher, Isaac Shoemaker, and Joseph B, Taylor v. James Pauli and Andrew Gillis, No. 92 March Term 1847,” which was tried September 30th 1847, and verdict for plaintiffs, subject to the payment of and upon condition that the plaintiffs pay to the defendant Pauli the sum of $8500, with interest from this date, and costs, within thirty-six months, payment not to be made until the defendant Pauli shall file in the prothonotary’s office deeds conveying to them, the plaintiffs, his title to the said property, and on failure on the part of the plaintiffs to comply with the conditions of this verdict, judgment to be entered for the defendants. October 22d 1847, the deed of James Pauli and wife was filed. December 14th 1857, testimony and charge were filed. February 18th 1848, jury fee paid prothonotary, and judgment on the verdict. The money specified in the foregoing condition was never paid, and October 4th 1850, on motion of defendant’s attorney, leave given to withdraw the deed filed by defendant, Pauli and wife, and the judgment entered in this case vacated, and judgment entered for the defendants.”</p> <p>To No. 283, March T. 1843, Nathaniel Ewing had recovered a judgment against Samuel Blocher, Isaac Shoemaker, and Joseph B. Taylor, upon which their interest in this property was sold, on the 7th of June 1847, to E. P. Oliphant for $4990, to whom the sheriff’s deed was acknowledged on the 22d day of October 1847.</p> <p>On the 20th of November 1847, E. P. Oliphant brought an action of ejectment against James Pauli and Andrew Gillis, the defendants in the preceding suit. This suit was tried on the 10th of February 1849, and verdict rendered for the plaintiff, on which judgment was entered on the 14th of February 1849. To this judgment a writ of error was taken, and in the Supreme Court it was affirmed: see 2 Harris 342.</p> <p>Under this judgment Oliphant went into possession of the property, and on the 20th of January 1851, conveyed to James Turbett, who, by deed dated January 22d 1851, conveyed the same to Ira Hersey, who, by deed dated 23d January 1851, conveyed the same to the Fayette Manufacturing Company.</p> <p>To No. 140 of June Term 1852, William Woodward & Co. obtained a judgment against the Fayette Manufacturing Company, on which its interest in the property in dispute was sold by the sheriff to Mumford Eldred for $6000, to whom a deed was acknowledged for the same on the 9th of March 1853.</p> <p>On the 24th of January 1854, Eldred conveyed the property to Harvey E. Jones, who, by deed dated the 28th of January 1854, conveyed the same to Anthony Hill, the defendant' below.</p> <p>On the 22d of January 1851, Ira Hersey had executed a mortgage to James Turbett for $10,000. On this mortgage a scire facias issued to No. 183, October Term 1854, against Ira Hersey, with notice to Anthony Hill. To this defendants appeared and pleaded, and on the 16th of April 1856, the cause was tried, and a verdict rendered for the plaintiff for $13,141.66, upon which judgment was entered on the 22d of April 1856; and on a writ of error taken thereto the same was reversed: see 3 Casey 418.</p> <p>No bail having been entered on the writ of error, in the mean time a levari facias was issued to No. 59 December Term 1856, upon which the property was sold on the 2d of December 1856, to E. H. Oliphant, the plaintiff below, for $13,501, to whom the sheriff acknowledged a deed for the same as on the 9th of December 1856.</p> <p>On the 21st of November 1851, James Pauli conveyed his title to this property to Martha Gaddis, wife of Harvey Gaddis, and Agnes Townley, wife of Thomas P. Townley, all of the state of Ohio.</p> <p>On the 23d day of February 1852, Townley and wife and Gaddis and wife brought an action of ejectment in the Circuit Court of the United States for the Western District of Pennsylvania, against the Fayette Manufacturing Company and John Rutherford, for the property in dispute. On the 15th of November 1853, the case was tried in the Circuit Court, and verdict rendered for the plaintiffs, “with six cents damages and six cents costs, and the court postpone judgment in this cause to the 1st of January next, in order to give time to the defendants to file a bill in equity. January 2d 1854, judgment.”</p> <p>Under this judgment the plaintiffs went into possession, and by their deed dated the 3d of May 1854, sold and conveyed the property to Anthony Hill, the present defendant.</p> <p>Hill being in possession under title derived from the Fayette Manufacturing Company, through the deeds from Eldred and Jones, was turned out under the judgment of Gaddis and Townley v. The Fayette Manufacturing Company, in the Circuit Court of the United States, and was compelled to buy their title, which he did on the 29th of May 1854, for $14,000, under which he now hold.</p> <p>F. H. Oliphant having bought the property at the sale, on the mortgage executed by Hersey to Turbett, and obtained the sheriff’s deed therefor, brought the present suit to recover the possession of the property from Hill.</p> <p>A main inquiry in the cause was, what estate E. P. Oliphant acquired by the sheriff’s sale of October 1847. By the plaintiff it was alleged that it was a legal and perfect title, and by the defendant, that his title was an equitable one, the legal title remaining in Mr. Veech to secure the performance of certain engagements made by Blocher & Go., which, it was averred, were never perfected. That the equity of Blocher' & Co. under their agreement, had been extinguished by the actions of ejectment above mentioned, viz., No. 134 of December Term 1843, and No. 92 of March Term 1847; and that, as the plaintiff held under them, he had no title.</p> <p>The defendant therefore requested the court to charge the jury:</p> <p>1. That the sale under the proceedings in the mortgage of Hersey tó Turbett, conveyed to the plaintiff only the title which was in Hersey at the date of the mortgage; and no matter of defence set up on the trial of the scire facias can enlarge or improve it; and that the plaintiff has the title of Hersey — no worse, no better.</p> <p>2. That James Veech took the title in trust for those who paid the money, that is, the plaintiffs in the execution; and no declarations at the time or afterwards could constitute him a trustee for. Blocher, Shoemaker & Taylor, who paid no money. They stood in the relation of purchasers from him as the trustee of the judgment-creditors, and until the delivery of the deeds they could have only an equitable title.</p> <p>3. That the sale to E. P. Oliphant under the judgment of N. Ewing v. Blocher et al., conveyed to him only the equitable title of defendants, subject to the legal title of Veech, then vested in Pauli.</p> <p>4. That the judgment in No. 92 March Term 1847, Blocher, Shoemaker & Taylor v. Paull & Gillis, in connection with the judgment No. 134 December Term 1843, Veech v. Blocher et al., is conclusive of the title against the plaintiffs in that suit, and consequently against the plaintiff in this suit, who claims under them, and stands in their shoes, and the verdict must be for defendant.</p> <p>5. That the judgment in No. 92 March Term 1849, and the judgment No. 19 May Term 1852, in the Circuit Court of the United States for the Western District of. Pennsylvania, Gaddis and wife and Townley and wife v. The Fayette County Manufacturing Company and Rutherford, are conclusive of the title, and the plaintiff is barred thereby.</p> <p>6. That the judgment of E. P. Oliphant v. Pauli & Gillis, No. 100 December Term 1847, is in no way connected with the judgment No. 134 December Term 1843, Veech v. Blocher et al., the defendants in that case having previously brought a suit in pursuance of the Act of 1846, No. 92 March Term 1847. This judgment of E. P. Oliphant v. Pauli & Gillis is, therefore, only persuasive evidence of title.</p> <p>■ The court below (Gilmore, P. J.) submitted to the jury two questions of fact, viz.:—</p> <p>“ Were the deeds delivered by Veech to Blocher & Co., orj if not, did Blocher & Co. comply with their agreement so far as to entitle them to a conveyance or delivery of the deeds previous to the purchase of Oliphant at the sheriff’s sale in October 1847 ? The last inquiry involves two contested matters — Was Overholt to sign the bond with Blocher, Shoemaker & Taylor ? And again: Was the Bowie claim to be secured ?” Adding: “ If you should determine either that there was a delivery of the deeds to Blocher & Co. by Mr. Yeech, or that they had performed all that entitled them to a transfer, it will be sufficient to enable the plaintiff to recover, and your verdict will be for him. If, however, you should find that the deeds were not delivered, and that the terms upon which it was agreed the transfer should be made were not complied with, the plaintiff will not be entitled to your verdict.</p> <p>“ But if you should find for the plaintiff, upon either of the grounds indicated, still the right of the plaintiff to recover will depend upon the effect which the several ejectments prosecuted between the parties will have upon his title. If we should affirm, as we are requested to do, the 4th, 5th, and 6th propositions of the defendant, it will be a bar to the plaintiff’s recovery; but we have reserved our opinion upon these points, and if, upon consideration, we should adjudge the same for the defendant (and your verdict should now be for the plaintiff), we will enter judg-; inent for the defendant, notwithstanding your verdict.”</p> <p>The court then affirmed the first point of defendant; answered the second point by saying: “ Whenever Blocher & Co. complied with these engagements in.securing to pay the creditors of Eoster, by this act Veech would become their trustee, and might be in fact the trustee for both.” The third point was left to depend on how the jury found the question of fact submitted in the general charge.</p> <p>The fourth, fifth, and sixth points were reserved, as above stated. The jury rendered their verdict for the plaintiff.</p> <p>The points reserved were disposed of by the following opinion:</p> <p>After stating the points, the learned judge continued:—</p> <p>“ This last proposition merely denies the effect which is claimed by the plaintiff for the verdict and judgment: E. P. Oliphant v. Paull & Gillis, No. 100 December Term 1847. But the fourth and fifth propositions, if affirmed, would form a complete bar to the plaintiff’s right of recovery. It is claimed that these three judgments in ejectment (one of which is in the Circuit Court of the United States for the Western District of Pennsylvania), separately or combined, destroyed the plaintiff’s title, both under the 4th section of the Act of the 13th of April 1807, and under the 1st section of the Act of the 21st of April 1846. The judgment No. 134 December Term 1843, Veech v. Blocher & Co., was a conditional judgment, and was confessed on the 26th of June 1844, against all the defendants except Thomas R. Davidson, who disclaimed title. The judgment also contained the following entry : ‘ For conditions see paper filed.’ This paper was not filed; but a writing was introduced on the trial which was received by the court as the paper intended to be filed, and which is now made a part of the record. Inasmuch as this paper gives-no certain information of the terms of the condition to be complied with by the defendants, we are of opinion that this verdict and judgment has no operation under the Act of 1846; and so we understand it to be decided in Harmer v. Holton, 1 Casey 249. There is also this other objection, that the plaintiff here became the purchaser prior to the time when this judgment in ejectment is endeavoured to be perfected: 6 Wharton 340. This, then, disposes of the effect of this judgment under the Act of 1846.</p> <p>“ Now as to the verdict and judgment of Blocher & Co. v. Paull & Gillis, No. 92 March Term 1847. This action of ejectment was commenced on the 22d of January 1847; was tried September 30th 1847; and verdict for the plaintiffs, subject to the payment and upon condition that the plaintiffs pay to the defendants the sum of $8500, with interest and costs, within thirty-six months. After the expiration of this time, to wit, on the 4th of October 1850, leave was given to the defendants to withdraw their deed filed, and judgment was entered for the defendants. This action of ejectment was no doubt commenced with a view of destroying the effect of the action of ejectment No. 134 December Term 1843, as allowed by the provisions of the Act of 21st of April 1846. But the condition of the said judgment not having been complied with, it is claimed that it is effectual also under the provisions of the Act of 1846, to give the abso-lute title to the defendant. Waiving the point whether the parties stood to each other in a relation which would allow the operation of this act in the rescission of contracts, we are of opinion that the action of ejectment commenced by E. P. Oliphant v. Paull & Gillis, No. 100 December Term 1847, he having become the owner of the Blocher title on the 9th of October 1847, would wholly destroy the effect of this judgment, No. 92 March Term 1847. It appears from the record, that, in February 1849, he had a verdict and judgment in his favour against Pauli & Gillis. At this time the thirty-six months allowed to Blocher & Co. to pay Pauli & Gillis had not expired. Yet before the expiration of the time, the purchaser of the title of Blocher & Co. obtains a judgment absolute against Pauli & Gillis, the effect of which, in our opinion, is destructive of the terms of the conditional judgment. The judgment which was entered on the 4th of October 1850, for the defendants, on the judgment of Blocher & Co. v. Paull & Gillis, No. 92 of March Term 1847, .will not have the effect of destroying the legal consequences of the verdict and judgment in No. 100 December Term 1847.</p> <p>“Then as to the operation of these judgments under the Act of the 4th of April 1807. There were’ no two verdicts and judgments against the plaintiff’s title. In No. 92 of March Term 1847; the verdict was for Blocher & Co. In No. 134 of December Term 1843, there was no verdict; it was merely a confession. As to the judgment No. 19 of May Term 1852, in the Circuit Court of the United States, there was a judgment for parties claiming under the title of Pauli. This would be but one verdict and judgment, and if it had another verdict and judgment to support it, it might be said that nothing but the legal title was tried in that court. We are therefore against the defendants on all the points reserved; and direct judgment to be entered, on payment of the jury fee, for the plaintiff.”</p> <p>The case was thereupon removed into this court by the defendant, for whom the following errors were assigned:—</p> <p>1. The submitting to the jury as a question of fact, whether the deeds had been delivered by Veech to Blocher & Co., when that fact had been conclusively settled by the cases of Veech v. Blocher and Others, No. 134 December Term 1843, and of Blocher & Co. v. Paull & Gillis, No. 92 March Term 1844.</p> <p>• 2. In not answering defendant’s points.</p> <p>3. In refusing to charge as requested in defendant’s third, fourth, fifth, and seventh points; and</p> <p>4. In charging that “ the judgment No. 100 of December Term 1847, E. P. Oliphant v. Paull & Gillis, wholly destroyed the effect of judgment of March Term 1847, No. 92,” whereas the latter was entered for defendant in October 1850.</p>

<p>Liability of Common Carriers. — “ Unavoidable Dangers of the River Navigation,” construed.</p> <p>1. A firm shipped goods upon a river steamboat, the owners of which, as common carriers, contracted, by their bill of lading, to deliver at the place of destination safely and in good order, “ the unavoidable dangers of the river navigation and fire exceptedthe boat was run into and sunk and the good's lost, without fault on the part of her master or crew; in an action against the owners to recover the value of the goods, it was held: That the loss was covered by the exception in the bill of lading, and that the plaintiffs were not entitled to recover.</p> <p>2. “ Unavoidable accidents or dangers” in a bill of lading, mean such accidents as are unavoidable by the carrier ; but in order to avail himself of the exception to his liability he must prove the existence of the danger, and also show by clear and conclusive testimony that there was no default on his part.</p> <p>3. The phrases “Act of God;” “Inevitable accident;” “Unavoidable dangers of the river navigation,” &c., discussed and distinguished.</p>

<p>Insurance Policy no Protection against Misconduct of Insured. — “ Misconduct” defined. — Acts of Barratry, when not covered by the Barratry Clause in Policy.</p> <p>1. Though an insurance policy may protect against losses through mere negligence and carelessness, yet it will not protect against the misconduct of the party insured; and if a ioss results therefrom the owner of the property insured must bear it.</p> <p>2. Misconduct means a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, while in contradistinction, carelessness, negligence, and unskilfulness, are transgressions of some established but indefinite rule of action, where some discretion is necessarily left to the actor.</p> <p>3. If acts of barratry, such as the misconduct of the master and crew of a vessel by which it is lost, be not expressly insured against, they are at the risk of the owner; if done with the consent of the insured they are not covered by the barratry clause in the policy; nor are they insured against when done by the owner himself.</p> <p>4. Therefore where the insured, the master of a river steamboat, caused a barrel of turpentine to be brought from the hold to the furnace, and used it in order to increase the head of steam, whereby the vessel was set on fire and destroyed, he cannot recover his insurance; for under the Act of Congress of August 30th 1853, turpentine must be secured upon steamboats in metallic safes, or in apartments lined with metal at a secure distance from any fire, and, therefore, in using it, he violated a clear and definite rule of duty, which would subject him to whatever loss resulted therefrom.</p> <p>5. Whether the wrongful act of the master in using the turpentine contrary to the Act of Congress was misconduct, was a question of law for the court and not of fact for the jury; for though, ordinarily, questions of care, diligence, and skill, are to be decided by a jury, it is otnerwise where the law defines the very act to be done under given circumstances: in such case the jury have only to decide whether the acts required or forbidden by the law have been done.</p>

<p>Municipal Elections when included within the General Election Law as to the Soldiers’ vote. — Right of Return Judges to fix Place of Meeting and as to Adjournments. — Fraudulent Election Returns not relieved against in Equity ; hut under Law relative to Contested Elections.</p> <p>1. The law providing for the voting of soldiers away from home in actual service, covers the case of municipal elections held at the same time as the general election; hence the soldiers in camp, belonging to Philadelphia, at the time of the election of 1801, had the right to vote for their proper municipal officers, and to have their votes counted, if properly certified and returned, and it was the duty of the judges of each ward to meet on the second Tuesday of November, to include the votes so returned in their enumeration.</p> <p>2. It is not a sufficient reason for invalidating the election, that some of the return judges refused to meet on that day ; nor that those who did meet, met at an unusual place, where it was shown that the duties of the return judges were so interfered with by a disorderly crowd, that they could not be performed at the usual place.</p> <p>3. Where the return judges included the soldiers’ vote, and issued certificates of election to those who were thereby elected members of Common Council, and it was evident that some of the returns were forgeries, and that through them several of the candidates had improperly obtained certificates of their election, the courts cannot for that reason summarily interfere with and annul those certificates, in the absence of proof that the return judges acted fraudulently ; but the case must be tried by the forms of a “ contested election,” before the tribunal appointed by law, and not by the ordinary forms of legal or equitable process before the usual judicial tribunals.</p>

<p>Constitutional Law. — “ Election Districts” and “ Residence” in the Election Lain defined. — Right of Citizen in Military Service beyond the Lines of the State to vote at General Election not authorized by the 3cl Article of the Constitution. — Jurisdiction of Supreme Court as a Court of Error.— Contested Election Case when reviewed on Certiorari. — Decree of Quarter Sessions not final in cases of Contested Election.</p> <p>1. Jurisdiction is given to the Supreme Court to revise and correct the proceedings of inferior courts, unless when expressly excluded by statute, or where a case is stated by the parties wherein they agree to submit their disputes to the Common Pleas, without expressly reserving their right to a writ of error; but the errors to be reviewed must appear upon the record.</p> <p>2. Hence this court has jurisdiction of a contested election on certiorari, where it appears from the record that no facts were in dispute; for as bills of exception are not allowed in the Quarter Sessions, no question arising outside of the record, can be reviewed, but only the ruling of the court below, upon questions of law purely.</p> <p>3. The 155th section of the Act of 2d of July 1839, giving to Courts of Quarter Sessions, in cases of contested elections, the same powers conferred on committees of the legislature, to compel the attendance of witnesses, and the production of'books and papers, is a grant of power for the specific purposes named, but does not make the decree of the Quarter Sessions final and conclusive, like the report of the committee in a case of contested membership in that body.</p> <p>4. Election-districts, within the meaning of the Pennsylvania statutes, denote subdivisions of state territory marked out by known boundaries, prearranged and declared by public authority ; though not defined by the constitution, they mean in it the same as in the statute, and are recognised as among the civil institutions of the state, which can neither be created nor controlled by the military power.</p> <p>5. “Residence,” in the constitution, is the same as domicil, the place where a man establishes his abode, makes the seat of his property, and exercises his civil and political rights.</p> <p>6. The right of a soldier to vote under the constitution is confined to the election district where he resided at the time of his entering the military service.</p> <p>7. The 43d section of the Election Law of Pennsylvania, passed July 2d 1839, allowing soldiers in actual military service to vote, outside of the boundaries of the state, conflicts with the amended clause of the 3d article of the constitution, and is therefore unconstitutional, null and void.</p>

Writ of error to the Quarter Sessions of Philadelphia county, upon a judgment for defendant, entered by said court upon a demurrer to a bill of indictment against said defendant for illegal voting.

<p>Constitutionality of the Stay Law of May 21 st 1861.</p> <p>The provision of the 1st section of the Act of May 21st 1861, entitled “ An Act relating to judgments and executions,” which directs the courts to grant a stay of execution against a defendant, on proof of an agreement in writing to that effect by a majority of his creditors whose demands exceed two-thirds of the defendant's indebtedness, is in violation of that, portion of the state and national constitutions which protects the inviolability of contracts.</p>

<p>In the Supreme Court of Pennsylvania. In Equity.</p> <p>Motion for a special injunction.</p> <p>This was a proceeding on a bill in equity, filed in the Supremo Court by Robert 'H. Gratz for himself and for other citizens of Pennsylvania and stockholders of the Philadelphia and Eric Railroad Company and of the Pennsylvania Railroad Company, against the Pennsylvania Railroad Company and the Sunbury and Erie Railroad company.</p> <p>The bill, which was filed to January Term 1862, set forth in substance:—</p> <p>That the complainant is a stockholder of the Philadelphia and Erie Railroad Company, and of the Pennsylvania Railroad Company, and a citizen and tax-payer of this Commonwealth.</p> <p>That, by virtue of Acts of Assembly of the Commonwealth of Pennsylvania, and the perforniance of the things thereby required, there were created and established the corporations defendants with all the powers and privileges by the said acts, and by all lawful supplements thereto (to which reference was craved), were granted and conferred.</p> <p>That, by virtue of resolutions of the board of directors, and by a vote of a majority of the stockholders, the said corporations are about to enter into, or have entered into, contracts, by means of which the Pennsylvania Railroad Company is about to purchase the rolling stock of the Philadelphia and Erie Railroad Company, to buy, or to contract to buy, the mortgage-bonds of the Philadelphia and Erie Railroad Company (secured by mortgage dated the 30th day of March, A. D. 1861), and to accept a lease of the road of the said Philadelphia and Erie Railroad Company, according to the terms therein expressed.</p> <p>That the Act of Assembly approved the 7th day of March, A. D. 1861, by virtue whereof, in part, the authority to make said contracts is claimed, is unconstitutional and void, and the mortgage of $7,000,000 therein referred to still remains a valid lien on the said road and premises therein mentioned, although the bonds therein referred to may have been delivered to the Commonwealth and the said mortgage satisfied of record.</p> <p>That the bonds so proposed to be purchased by the' Pennsylvania Railroad Company are not the first lien on any part of the railroad of the said Philadelphia and Erie Railroad Company, but, if at all valid, are subsequent in lien to the bonds secured by said mortgage for $7,000,000.</p> <p>That the Philadelphia and Erie Railroad Company cannot lawfully accept and receive under the said acts from the state treasurer, the bonds purporting to be secured by said mortgage.</p> <p>That the road of the Philadelphia and Erie Railroad Company is unfinished, and is in its unfinished condition not a sufficient security for said $7,000,000, and the same is or may be subject to a prior lien of $600,000, as provided by an Act of Assembly approved the 13th day of April, A. d. 1860.</p> <p>That the said contracts so intended to be or executed by the defendants, and each and all of them, are unlawful and void, and beyond the limits of the corporate powers of said companies, and each of them are in violation of their respective charters, and injurious to the rights and interests of the complainant as a stockholder aforesaid.</p> <p>That the said corporations are about, forthwith, to carry into effect each and all of the said contracts, and unless prevented by injunction, will act thereon as though the same were binding obligations on the parties thereto.</p> <p>That by means thereof his rights and interest as a stockholder of the said companies are prejudiced and impaired, and that the bonds of the Philadelphia and Erie Railroad Company so purposed to be purchased by the Pennsylvania Railroad Company •will be comparatively, if not wholly valueless; and praying:—</p> <p>1. That each of the said contracts may be declared inoperative and void, and delivered up to be cancelled.</p> <p>2. That the mortgage of March 30th 1861 be declared not the first lien on any part of the premises therein described.</p> <p>3. That a special injunction' until hearing, and a perpetual injunction thereafter, be issued against the defendants and each of them, restraining them from executing either of said contracts, or if executed from doing any act or thing under them.</p> <p>4. That similar injunction issue against the Philadelphia and Erie Railroad Company, restraining them from receiving from the state treasurer the bonds purporting to be secured by the mortgage of March 30th 1861, with the usual prayer for general relief.</p> <p>The facts contained in the bill were not controverted by the respondents, but affidavits were filed to show that the contemplated arrangement was the only one by which the Philadelphia and Erie road could be constructed and equipped, and the debt due to the Commonwealth secured.</p>

This was an action of debt by John Dyer against the City of Philadelphia, upon the award of the jury selected to assess the damages which he would sustain by the opening of Broad street through his property.

<p>Pleading. — Legal Presumption in favor of Obedience to the Law.— Plaintiff’s Authority to sell not properly assailed under plea - of non assumpsit.</p> <p>1. A breach of law cannot be presumed, but on the contrary, the presumption is that every person has conformed to the law, until the contrary appear by proof, the burden of which is upon him who alleges it.</p> <p>2. Hence, in an action to recover for a bill of liquors, ivherein defendant pleaded non assumpsit, alleging that the goods had been sold by agent in the county in which'he lived at the time suit was brought, and also that the plaintiffs should have proved a license to sell therein, it was Held, Jhat the plea raised no question of authority in the plaintiffs to maintain their action, and that they could recover without producing a license or setting it out in their declaration.</p> <p>8. The defendant should have specially pleaded and proved the matters relied on in defence, in avoidance, and not by denial of his liability.</p>

This was a scire facias sur recognisance in the Orphans’ Court to September Term 1859, in the name of The Commonwealth for the use of the heirs of John Bailey, Sr. and against John Bailey, Jr., and Abraham Pott, with notice to Thomas Wiley, terretenant, in which the following case was stated for the opinion of the court:— John Bailey, Sr., formerly from Port Carbon, died November 10th 1837, seised in fee simple of and in certain real estate in Port Carbon, said county.

This was a scire facias sur mortgage, which was sued out, August 25th 1860, by the Hermann Building and Saving Fund Association No. 2 against Catharine Houser and terre-tenants. On the trial the plaintiff offered in evidence a mortgage made by Catherine Houser, of the premises therein described, on the 29th day of July, a. d. 1857, to secure the payment of $4000, on the days and times, and in the manner therein mentioned, to said plaintiff, and thereupon closed his case.

This was an action of ’replevin, brought October 1st 1865, by Josiah C. Allen against George Phillips, to recover eight baskets of apples, in which the following case was stated for the opinion of the court: — The plaintiff, a farmer residing in Gloucester county, New Jersey, brought a quantity of produce, contained in baskets of various sizes, to the Philadelphia market, to sell in the public market-houses; none of the baskets were marked on the outside with their…

<p>Trust express and implied.— What Trusts are not affected by the Statute of Limitations. — Acknowledgment sufficient to take Case out of the, Statute. — Special Replication to Flea of the Statute of Limitations, when necessary.</p> <p>In a suit by executors for a share of fees due their testator for professional services as an attorney against another attorney who received the fees due both, the Statute of Limitations was pleaded in bar to the action as not brought within six years from the receipt of the fees by defendant, to which was replied, on trial, an alleged trust, and an acknowledgment and promise to pay: the jury were instructed that if the defendant had received the fees more than six years before suit brought, their verdict should be for defendant. On writ of error it was Held.:</p> <p>1. That, there being no fraud or concealment in the receipt of the fees by defendant, and no proof that he agreed to hold them in trust, no such express or implied trust arose as would prevent the running of the statute:</p> <p>2. That, where the proof of the acknowledgment and promise to pay by the defendant was not explicit and unambiguous, it would not take the case out of the statute; and the ruling of the court on the trial, that there was not sufficient testimony to be left to the jury from which to infer a promise to pay, was correct.</p> <p>3. Where, on writ of error before the Supreme Court, the fact that letters of administration to the executors had not been granted in the state of Pennsylvania until within six years, was also replied to the plea of the statute, it was Held, that the question could not be decided because not raised in the pleadings: non-administration should have been specially replied on the trial, to the plea of the statute, but as no such replication was made, the question as to its effect was not before the court, because not on the record.</p>

This was an appeal by Joseph Pennypacker, guardian of Oliver M. Emery, from the decree of the Orphans’ Court confirming the auditor’s report on his account. The material facts of the case were these : — William Emery, of East Pikeland, Chester county, died about December 1840, seised of a farm, a wood lot, and a small amount of personal property, leaving a widow and four children by his first wife, and two children, Catharine and Oliver, by his second wife.

In the Supreme Court of Pennsylvania. In Equity. In 1862, Dr. Isaac Hottenstein, residing in Snyder county, Pennsylvania, filed a bill in equity in this court addressed to the Hon. John M. Read, one of the judges, setting forth that he “ is one of the sons and devisees of David Hottenstein, late of Berks county, deceased, who was the owner and proprietor of the ferry opposite Sunbury, and of the landing on the western side of the river, which he had devised to complainant —…

This was a proceeding in equity on a bill filed February 3d 1858, by George W. Lefever against Jeremiah Underwood and David Wright, to compel a settlement of partnership accounts.

This was an appeal by Martha E. May from the decree of the Orphans’ Court, distributing the estate of Samuel Shaffer, deceased. The following are the material facts of the case, as disclosed by the able report of the auditor (P. Frazer Smith, Esq.), to whom the case was referred:— “ Samuel Shaffer died April 26th 1856, having made his will, dated September 26th 1855, and proved May 14th 1856, of which he appointed Addison May, Joseph Neide, and Henry Shaffer, the' executors.

This was an appeal by William P. Worrall, from the decree of the court distributing the proceeds of the sheriff’s sale of the personal property of Washington M. Worrall. The following are the material facts of the case:— Washington M. Worrall, as principal, and William P. Worrall, as surety, became bound to William C. Richardson and James O. Pease, by bond dated the 1st day of March 1859, in the sum of $4903, conditioned for the payment of $2451.52.