Volume 42 — Pennsylvania State Reports

Error, to the District Court of Philadelphia. This was a scire facias sur claim for taxes sued out February 15th 1859, by the City of Philadelphia against The American Philosophical Society, in which the following case was stated for the opinion of the court as a special verdict:— The defendants were an incorporated company before the 28th of March 1785, at which date they obtained all the right, title, and interest, which they hold and enjoy in and to their hall and lot on…

This was an amicable action between the school district of the township of North Manheim and the directors of the poor and house of employment in and for the county of Schuylkill. By a special act approved April 4th 1831, the poor in Schuylkill county were made a county charge.

<p>" Nephews and Nieces” of Testator, definition of.— What Legacies are within the Act of 1834, requiring Security from the primary Legatee.</p> <p>1. A testatrix by will made a residuary bequest to “all my nephews and nieces.” Held, that only her own nephews and nieces were included, and not those of her husband.</p> <p>2. A bequest of a sura of money to one in these words, “ both principal and interest (if she needs it) during her lifetime, after which to be disposed of in like manner as the residue of my estate,” (i. e., among nephews and nieces of testator), is not within the Act of 24th February 1834, $ 49, prohibiting its payment to the primary legatee without security.</p>

This was an amicable action entered in the court below, by-Robert Parke, David Parke, John G. Parke, Francis G. Parke, Thomas H. Parke, Isabella Parke, and Benjamin I. Y. Miller and Mary his wife, as plaintiffs, and the Pennsylvania Railroad Company as defendant, in which the following case was stated for the opinion of the court in the nature of a special verdict:— John G. Parke, deceased, ancestor of the above-named plaintiffs, and under whom they claim, being seised in…

This was an amicable action on tbe case between George McHenry and John M. H. Smiley, assignees of tbe Western Insurance Company in trust for creditors, against Eranklin Fell, trading as C. J. Fell & Brother. The plaintiffs declared for the.trover and conversion of a promissory note made by the defendant below, C. J. Fell & Brother, dated 1st April 1857, to the order of the Western Insurance Company for $4000, payable inNtwelve months after date.

This was an action on the case, brought in the court below, March 31st 1860, by Leander B. Harrison, William Hooper, and Henry H. Gibson, partners, doing business as Harrison & Hooper, against Peter Steman, Lafayette Baker, and James Hopkins, doing business as Steman, Baker & Co. * The plaintiffs declared on an acceptance by defendants of a bill of exchange drawn-on them by Joseph Elstner, January 27th 1860, at sixty days, for $1000, and which had been endorsed to…

<p>Water-Rights.— Who may com/plain of Misuser of Right. — Baching Water into Tail-Race of Mill actionable without Proof of actual Damage.</p> <p>1. In an action for backing water upon the tail-race of a mill, the defendant set up in defence that the original use of the race, which ran over a tract lying between the lands of the plaintiff and defendant, had been changed. Held, that the question whether there had been any change from the right as originally granted to run the race over the tract, could only arise as between the original parties, their heirs or assigns; and that as the defendant had no interest in the tract, he could not question the plaintiff’s right in it.</p> <p>2. It is actionable to flow water back in the tail-race of another’s mill, whether any actual damages are or are not caused thereby.</p>

<p>Mechanic’s Lien, Leasehold Estates in Counties of Luzerne and Schuylkill, subject to. — Act 17th February 1858 construed. — “ Improvements” in the Statute, meaning of.</p> <p>1. Under Act 17th February 1858, relating to mechanics’ liens in the counties of Luzerne and Schuylkill, a mechanic’s lien may be filed against an ice-house, erected for the purpose of carrying on the business of storing and selling ico, on a lot leased in the latter county for a term of years.</p> <p>2. It is not a valid objection to the lien that it does not set forth precisely the nature of defendant’s interest, where the lien was described to be against the “ice-house” on the land of the lessors, and “on the interest” of the defendant in the lot of ground whereon it was erected; for the act does not require that the defendant’s tenure shall be set forth in the lien.</p> <p>3. The act applies generally to leased estates, and their tenants, in the two counties embraced by it, and not to coal lease estates only.</p>

This was an appeal by Sarah A. Vandever, late tire widow of Maris Wilson, deceased, from the decree of the Orphans’ Court dismissing her petition and the citation which was issued thereon against James B. Humphrey, administrator of her late husband. The case was this: — Maris Wilson died in Chester county, in the year 1849, leaving a widow, the appellant, and eleven children, to survive him.

This was an action of covenant by James Maguire against Lebrecht Frank, on a sealed instrument, whereby the defendant undertook a personal liability for the performance of the covenants on the part of the lessee, in a lease given by James Maguire, executor, to Dr. John S. Albright, “without recourse” to the lessee.

<p>Common School Law.— What are Regular Meetings of Directors.— Power of Directors to declare Seat of absent Member vacant.</p> <p>1. Under the General School Law of 1854, directors’ meetings are either stated, including the annual meeting when fixed, or special, adjourned meetings to take place in either case: but the former only are regular meetings, for non-attendance at any two of which in succession, except in case of sickness or absence, the seat of a director may be declared vacant by the other directors, and a new member appointed in his stead.</p> <p>2. Therefore, where a board of school directors, at an adjourned meeting (there being no quorum at the regular meeting), declared the seat of one of their number vacant, who had not attended a “ special” meeting called by the president, or the last regular or adjourned meeting; it was Reid:</p> <p>That, the first meeting being “special,” was not “regular,” and as the third meeting was but a continuation of the second, which though styled “ regular” did not appear to have been a “ slated” meeting, the action of the school board, in declaring the seat of the absent member vacant, was illegal, because he had not been absent at two regular meetings in succession.</p>

Beitler, of the city and county of Philadelphia. On the 26th clay of March 1862, the defendants were arrested and brought before said alderman, on the charge of being professional thieves, &c. After hearing, they were committed to the prison of said county, agreeably to the provisions of the Act of Assembly, passed March 13th, A. D. 1862, for the city of Philadelphia, which will be found in the opinion of this court. April 17th 1862.

This was an action of trespass quare clausum fregit, brought in 1859 by William Hoff against Peter Filbert, Joseph Miller, and John Sauser, for breaking and entering plaintiff’s close and cutting down and carrying away a quantity of oak, white pine, and hemlock timber.

This was an action of trespass quore clausum fregit, brought September 20th 1858, by Joshua N. Pierce against Jesse Cloud, for entering upon the land of the plaintiff in East Eallowfield township, Chester county. The defendant claimed a right of way over the locus in quo from a public highway, called the Strasburg road, to the dwelling-house of Joshua Cloud, his father, with whom he lived, and he defended the action in this right.

<p>Mental Incapacity, Proof of required to rescind executed Contract.— Ratification of Acts of Agent or Attorney express and implied.</p> <p>1. Mere mental weakness will not authorize a court of equity to set asido an executed contract, if it does not amount to inability to comprehend the contract, and is unaccompanied by evidence of imposition or undue influence.</p> <p>2. One who was appointed attorney in fact, by an old man, to transact his business, bought at sheriff’s sale real estate against which the latter held judgments, and by mistake as to the liens thereon was obliged to pay considerably more than his bid. After the purchase, and a further expenditure in improvements and repairs, he was released from all liability by his principal, who assumed the ownership. After the death of the principal, a bill in equity was filed by the heirs against the agent to compel him to take the property and account to the administrators for the amount expended, alleging decedent’s incompetoncy through mental weakness to execute the release, and that losses had been sustained by defendant’s mismanagement, to which he replied, the release, and ratification of the purchase by the decedent. The widow, one son, and a daughter joined as co-defendants, and in their answer denied the alleged mental weakness of the decedent, when he executed the release. The court below decreed that the defendant should account for the amount expended, and that he should receive a deed for the property. On appeal it. was Held, that where the preponderance of the testimony showed mental competency to execute the release, the acts of ownership by the decedent in his lifetime, his declarations of satisfaction as to the purchase, and that it was made by his direction, were not only evidence of subsequent ratification, but proved an intelligent execution of the power of attorney; that as no fraud or undue influence had been used, and, as no such mental weakness had been shown, as would avoid the release, as an executed contract, the decree of the court below charging the defendant with the entire sum expended by him as agent, and compelling him to take the property, was error.</p> <p>3. The incompetency of the decedent to execute the release cannot be proved by tho opinions of the witnesses called to testify that he was incapable of understanding it, when it was executed: else the question of competency would depend on the degree of intelligence each witness might think necessary to understand such an instrument, a test which would be variable and uncertain.</p>

This was a feigned issue directed by the court below, in which John Durst was plaintiff and Charles Schilling defendant, to ascertain how much, if anything, was due from the defendant to the plaintiff on a judgment for $1500, confessed in a bill single' dated March 3d 1860, payable in five days after date, and which was entered of record in the District Court, March 5th 1860.

Pleas of SchuyUcill county. This was a proceeding in equity, on a bill filed in the court below, by Benjamin Pott; against the school district of the borough of Pottsville, and Benjamin Bannan and the other school directors of that district.

This was a scire facias sur mortgage, brought in the court below, by George H. Garrett against Elizabeth Gonter. The writ recited a mortgage on property in Tenth street, Philadelphia, for $5000, dated August 1st 1854, given to the plaintiff by the defendant, by her agent, duly appointed by letter of attorney, dated May 23d 1854, acknowledged by the defendant, and regularly recorded. The pleas were “non est factum, payment with leave, &c.,” upon which issue was joined.

<p>Voluntary Agreement as to Declaration of Trust not revocable on account' of Minority or Disability of some of the cestuis que trust who joined in the Instrument.</p> <p>A son having made a parol division of his property, which was personal, among his brothers and sisters, except a small part which was to go to his mother, then a widow, died intestate and without issue: the mother, though entitled to the whole, signed articles of agreement with the children relative to the disposition 'of his estate, by which the balance remaining after taking out her portion, was to be invested, the interest to be used for the benefit of an invalid son, and the principal at his death to go to the brothers and sisters of the intestate: she also waived administration, and agreed that letters should be granted to a son-in-law, which was done. After account filed, the administrator took the net estate as appropriated by the mother, invested it, and paid her the interest for several years, for the use of her son, as agreed on, when an auditor was appointed at the instance of the mother to distribute the fund, before whom she claimed the whole balance, as mother and heir at law, repudiating her agreement, on the ground that some of her children were minors when they executed it with her: Held,</p> <p>1. That the instrument executed by her, must be regarded as an assignment and declaration of trust, with a trustee competent to carry all its trusts into complete effect, without the aid of a court of equity.</p> <p>2. That as such declaration of trust, it was her own voluntary act, deriving no aid from its execution by her children, and therefore not impaired, because at the time of the execution, some were minors: consequently the fund must be distributed on the basis of the agreement or declaration of trust.</p>

<p>Custom in Violation of Good Morals not admissible in Evidence. — Presumption of Death of absent Party.</p> <p>, 1. A custom is not legal if contrary to morality, religion, and the law of the land; but is unreasonable and therefore not compulsory.</p> <p>2. In an ejectment' growing out of a disputed title to land, the claimant being a negro born in another state, the defendant offered to prove that in the region whence the plaintiff came, it is not customary for colored people to form legal marriages, and that the majority of them cohabit promiscuously, as well among free colored persons as slaves, in order to rebut the presumption of marriage and legitimacy from cohabitation : but the offer was rejected.</p> <p>Held, that as the testimony would have tended to establish a custom contrary to public morals and decency, the rejection of the offer was proper..</p> <p>3. Where it appeared that one entitled to claim the land in common with the plaintiff, had gone to sea in 1823; and up to the time of the trial in 1861, had not been heard from, except by rumour in 1832, the presumption, after such a lapse of time, is that he was dead: and the evidence was held sufficient to justify the jury in so finding.</p>

<p>Conditional Verdict in Ejectment when proper on an Executory Contract for Land. — Rescission of hoio established.</p> <p>1. Where one brought ejectment on his legal title against a defendant in possession, who alleged a parol contract for the purchase of the lot, and part payment of the purchase-money, the plaintiff is entitled to a conditional verdict for the balance due him under the contract, though he had made no demand for such balance, and had not tendered a deed before bringing suit.</p> <p>2. The defendant cannot set up encumbrances against the plaintiff to show his inability to make a clear deed for the premises, nor can he thus defeat the plaintiff of his conditional verdict: because he may require that the verdict shall be enforced only on condition that the plaintiff execute and file a proper deed.</p> <p>3. Though the defendant had, as alleged, bought the lot in question from a third person, under an agreement that the plaintiff should take the title in his own name, he can, on paying the purchase-money and receiving a conveyance, use the title to enforce payment to himself by a conditional verdict in ejectment.</p> <p>4. _ An executory contract for land may be rescinded by parol, but the rescission must be evidenced by acts which leave no doubt of the intent, especially where the contract is by parol.</p> <p>5. Hence, where the court below, on the trial, rejected the offer of the plaintiff to prove that a payment made by the defendant “ on account of the house and lot, & a.,” was afterwards by his knowledge and consent carried to his general credit, in a separate account, it was error: for if the withdrawal and change of payment did not prove a rescission, it was evidence against the claim for the payment of purchase-money by the defendant, and also on the question of the amount due on the land.</p>

<p>Wharfinger, Power of to sell.— Vendor of Chattel, when an incompetent Witness. — Forfeiture of Personal Property by Negligence.</p> <p>1. A wharfinger has no power to sell coal deposited on his wharf, for unpaid wharfage.</p> <p>2. Goal belonging to one, was by mistake deposited on the wharf of another, who after some time sold the coal to a third person, against whom the owner brought trover, to recover its value: on the trial, the vendor was offered as a witness for the defendant, but was rejected. Held, on writ of error, that the witness, being the vendor in possession at the sale, and bound to the vendee upon the implied warranty of title, was incompetent unless released.</p> <p>3. The plaintiff, in leaving the coal on storage upon the wharf, was not guilty of such negligence as would justify the sale of the coal, or a verdict against him, in the action to recover its value.</p>

This was an action of covenant, brought to September Term 1858, by Godfrey Schreffler against The Lycoming Mutual Insurance Company, on a policy of insurance, dated October 3d 1854, given by defendants to George H. Potts, upon a stock of merchandise in a store at Brockville, Pa., valued at §>3000, and which, on the 11th of September 1855 ivas, with the written consent of the -company, duly assigned to the plaintiff, who averred a loss by fire on the 13th of April 1858,…

Errur to tlie District Court of Philadelphia. This was an action brought to December Term 1860, by The City of Philadelphia against Francis Duffy, in which the following case was stated for the opinion of the court:— The defendant was seised of certain premises on the north side of Locust street, below Twelfth, which were levied upon under two executions upon judgments against him, and sold on the 6th day of August 1860, to a purchaser for the sum of $500, subject to a…

<p>Exception taken in Court beloio, must appear on the Record. — Deposition when admissible in point of Form. — Adultery before Marriage no bar to Marital Rights subsequently acquired.— Widow’s Right as against Creditor’s.</p> <p>1. Objections to the admission of a deposition offered on the trial of a cause, that it was not returned attached to any commission or interrogatories, that there was no certificate that the examination was on interrogatories sent, &e., must appear, on writ of error, in the bill of exceptions: for the Supreme Court will not regard what does not appear upon the record.</p> <p>2. But answers referring to the several interrogatories by number, are sufficient evidence that the interrogatories had been propounded to the witness and answered, without being so stated, especially where the certificate of execution of the commission states that it was taken pursuant to a commission, and to which the interrogatories were attached.</p> <p>3. A woman divorced from her husband on the ground of his desertion, subsequently married again, and after the death of her second husband, claimed her §300 exemption, which was refused by the administrator: in action against him therefor, evidence was held not admissible to prove adulterous intercourse between herself and the second husband before the divorce, to affect her claim.</p> <p>4. Offers of evidence to prove adulterous intercourse, or acts amounting to a waiver by the widow of her rights to the exemption, which were overruled on the trial, must, in order to he reviewed by the Supreme Court on writ of error, appear in and be embraced by the bill of exceptions.</p> <p>5. A widow's claim to her statutory exemption under the Act of 1850, will prevail over .debts not liens against her husband’s estate prior to the passage of that act, there being no such saving clause in favour of debts prior thereto, as there is in the Debtor’s Act of 1849. Baldy’s Appeal, 4 Wright 328, affirmed.</p>

<p>Consentable Boundary Line, Existence and Location of, a question of fad for the Jury. — Draft, when not Evidence.</p> <p>1. Parties having bought the timber upon certain lands, in making a division thereof used a rough draft, not from actual survey, and without courses and distances, and agreed upon a “brow or ridge of land” as the dividing line; the place where it was supposed to be being marked on the draft by a pencil line,- and the name and initials of the parties written on the portions supposed to be allotted to each : the vendees of AY., one of the parties, cut timber on his side of the ridge or natural boundary, but on a part marked on the draft with the initials of the other parties, B. and R., who brought trespass therefor: on the trial, the location of the ridge agreed on as the boundary was submitted to the jury as a question of fact: Held, that the submission was proper, for the true location of a disputed line or boundary is always a question of fact for the jury.</p> <p>2. AYhere the map or rough draft was not attached to the contract, was not made from actual survey, and was without courses and distances, it was not conclusive of the plaintiff's right to recover ; though their names were marked on the draft as the owners of the timber-leave, where the timber in dispute was cut, and the rough draft or drawing was referred to in the contract of division, which was therein said to be “ on the following lines as represented on the drawing.”</p>

<p> Power and Jurisdiction of Board of Port Wardens of Philadelphia to control the erection of Bridge over the Schuylkill. </p> <p>By Act of Assembly of 27th March 1852, the commissioners of the county of Philadelphia were required to build bridges over the Schuylkill, the County Board to approve site, plans, and specifications: by subsequent acts, the rights and privileges of the County Board and Commissioners were vested in the city of Philadelphia, and the city councils were authorized to build the Chestnut street bridge as provided by the Act of 1852: the city being about to build, the board of wardens filed a bill, in equity for an injunction, alleging that the navigation of the river would be injured. Held,</p> <p>1. That if any express authority existed in the board to control the erection of a bridge, it was an authority derived from the legislature who might withdraw it and confer it elsewhere:</p> <p>2. That as the County Board and Commissioners and their successor, the city, had heen specially appointed by the legislature for the erection of the bridge, this special agency would supersede the general agency of the board of wardens, if any existed: and the former being specially selected, the latter were excluded by necessary implication: and that therefore, the board of wardens as such, had no power to interfere with the erection of the bridge.</p>

<p>What Streams are navigable. — Extent of Grant to riparian Owner.— Right of Navigation how affected by State Legislation. — “Area of Water-way,” in Act of Assembly authorizing the erection of a Pier in Navigable Streams, construed.</p> <p>1. In Pennsylvania, all rivers and streams of water, that are subject to tides, or capable of being navigated in the common sense of the term, are treated as navigable : and grants of the adjoining soil are not usque ad filum medium, aguce but only to low-water mark, the soil and water found between the lines that describe low Avater, being retained as eminent domain for the use of all citizens.</p> <p>2. The right of navigation in all such navigable waters is the paramount public right of every citizen.</p> <p>3. But where a river is wholly within the limits of the state, it is within the power of the legislature to diminish the navigability by the erection of a bridge, at or below tide-water, the state law not conflicting with any constitutional enactment of the general government in respect to such tide-waters.</p> <p>4. An Act of Assembly authorizing the erection of a bridge over the river Schuylkill at Chestnut street in the city of Philadelphia, provided that it should be constructed “ upon such piers or abutments as to afford at all times a clear and uninterrupted passage for the water of the said river, equal at least in area to that now existing at the Permanent Bridge over the Schuylkill at High streetthe river being narrower at Chestnut street than at High street, was deeper, so that though less in superficial measurement, yet the product of the width and depth at the site proposed would give a greater area for the clear and uninterrupted passage of the water than at High street.</p> <p>Held, that, under the circumstances, the intent of the Act of Assembly was to provide for a passage of water under the new bridge equal at least in area to that existing under the other, and that the area was to be measured by depth and breadth and not by the linear surface of the water alone, at the respective sites.</p>

<p>Construction of Deed.— What Transfers are Assignments for the benefit of Creditors under the Acts of 1818 and 1886. — Remedy of oestui que trust in Equity.</p> <p>O. and J., partners as attorneys at law, holding large sums of money belonging to It., became involved, and in 1855 made a declaration of trust as to a large amount of property real and personal, in favour of It. In 1857 they dissolved partnership; C. retiring, named J. to receive the property, to pay all the firm and joint debts, and to save O. harmless from all claim or liability therefor. In October 1859 J. made a declaration of trust similar to the first, and also executed an agreement by which It. agreed to receive, through trustees, the property of J., subject to the encumbrances thereon, in full payment and discharge of the amount due him by C. & J., and J.: and also that the debts of J. should be paid out of the proceeds of the property, which was to remain in the hands of the trustees named, to whom all the deeds and transfers of the real and personal property were made: in this instrument J., with another, were the trustees. Afterwards C. presented his petition to the Common Pleas, asking- for a citation against the trustees, claiming that the transaction was an assignment by J. for the benefit of creditors, under the Acts of 1818 and 1836, and that the defendants should be held accountable as assignees. Meld,</p> <p>1. That as the property was not assigned for the benefit of creditors, but sold to R. through the intervention of trustees, the transaction under tho circumstances was to be regarded as a sale with a security analogous to a mortgage for the purchase-money, and not as a general assignment for the benefit of creditors:</p> <p>2. But, as the trust was partly for the benefit of creditors, O. was, as a creditor, a cestui que trust as far as the trust was to pay the debt due to him, assumed by J., and contracted to be paid by R., and as such a creditor he had an undoubted interest in the trust, and could sue for its proper administration.</p>

<p>Transfer of Trust Property in Fraud of Trust. — Purchaser of when exonerated from Liability to cestui que trust.</p> <p>1. Where one purchased from a trustee, for a fair price, certain lots belonging to the trust, 'which the trustee had power to sell under the deed, and without knowledge of any intended diversion of the sum paid, from the purposes of the trust, he is not guilty of fraud in so doing, nor wiil he be liable to make good to the trust estate the amount afterwards paid by it to repossess the lots, which meanwhile had passed into other hands.</p> <p>2. The husband of the cestui que trust, acting as the attorney in fact to manage the trust for the trustee, his father, failing to eífect a mortgage upon the lots, sold them to one who agreed to convey to Mm, on Ms repaying the purchase-money: the trustee received the money and conveyed the title to the purchaser, which title the husband, upon repayment, received in his own name: the lots were then mortgaged, sold under the mortgages, and afterwards bought back by the trust estate: after the death of father and son, a bill in equity was filed by the widow and the trustee succeeding to the trust, against the purchaser, to recover the amount paid, alleging a confederacy between him the trustee and the husband to defraud the estate of the lots, and claiming that the deed to him was in fact a mortgage. Held,</p> <p>(1.) That the amount advanced to the trustee for the conveyance being nearly or quite the full value of the lots, the purchaser could not be charged with a corrupt combination to obtain it, whether the conveyance was a mortgage or not:</p> <p>(2.) But that as there was no agreement by the purchaser to reconvey to the grantor, the trustee, when the consideration-money should be repaid, the deed was not conditional as between them,, and was therefore not a mortgage.</p>

This was an action of ejectment brought in tbe court below to December Term 1853, by John Gilbert, Silas H. Wentz, and John Rorer against John McBarron, John Lauberger, Barnhart Eisenhuth, and John Eisenhuth, for eight hundred acres of coal land in Mahanoy Yalley.

<p>Costs on Appeal from Award of Arbitrators must be paid in Cash, and not by Note. — Note for Costs is not Payment.</p> <p>To perfect an appeal from an award of arbitrators, the costs must be paid in actual cash: the prothonotary has no right to take a note for costs, either in whole or in part.</p>

This was an action of debt brought before a justice of the peace, in the name of the Commonwealth, at the instance of William Slater, supervisor of Forest Lake Township, against David L. Meeker, for the penalty imposed by the 67th section of the Act of Assembly known as the “ General Road Law.” The case was this: — M.eeker lives upon a road leading from the turnpike, and running off near the bottom of a tract of side-hill country.

<p>Execution Clause in Policy of Insurance, construed.— What constitutes a Levy within the meaning of such Clause.</p> <p>A clause in a policy of insurance, that it should “ cease at and from the time the property hereby insured shall be levied on or taken into possession- or custody, under any proceeding at law or equity,” is to be construed as meaning an actual levy and change of possession under it; a mere-notice of levy by the officer charged therewith to the defendants at their store, without his taking the goods insured into possession or custody, though good as a levy, will not defeat the policy.</p>

<p> Right of Widow to control the Disposition of the Remains of her deceased Husband. </p> <p>1. A wife has no right or control over the body of her deceased husband after burial: the disposition of the remains of the deceased belongs thereafter exclusively to his next of kin.</p> <p>2. A widow filed a bill in equity against the brothers of her deceased husband, and his mother in whose cemetery lot he was buried, to obtain the removal of the body to another cemetery, claiming her right so to do as administratrix and as widow. Held,</p> <p>(1.) That her duty to bury the body of the deceased terminated with the burial: and,</p> <p>(2.) That as widow she had no right to it, after the interment.</p>

<p>Bond of Railroad Company as Security for Damages, includes Damages for Location and Construction.— What is implied by Tender of Bond, and, Approval' of Sureties.</p> <p>1. A bond filed by a railroad company when locating their road is a security for all damages that may occur from the construction also: both are but one injury, and a bond filed for one is therefore a security for all.</p> <p>2. The offer of a bond by a railroad company is an assertion by one of the parties that they cannot agree upon the damages caused to the property of the landowner: and the action of the court approving the sureties and directing the bond to be filed, involves an adjudication that everything had been done to entitle the company to have the bond filed.</p>

<p> Construction of Married Women’s Act: Wife may trade with Merchandise acquired in her own right. </p> <p>1. - Where a married woman is the owner of a store of goods in her own right she may trade with them, and with the proceeds of sales buy other goods to be held and traded with, exempt from seizure for her husband’s debts, though she may not be a feme sole trader.</p> <p>2. Her ownership, use, and enjoyment, under the Act of April 11th 1848, must be consistent with the nature and kind of the property acquired under it: and it being in the nature of merchandise to be sold and exchanged, the Act of 1848, where it authorizes married women “to own, use, and enjoy” merchandise as their separate property, legalizes trade by them with it.</p> <p>3. The goods of a debtor were bought at sheriff’s sale by a brother of the debtor’s wife, who afterwards gave them to her; she then went into business in her own name, sold out her stock, and with the proceeds purchased other goods, which were levied on by a creditor of her husband’s. On a feigned issue to determine the title, it was Held,</p> <p>That the sale, and gift being valid, she had the power under the Act of 1848, to sell the goods given her, and invest the proceeds in other goods which she could hold for the purposes of sale and trade, beyond the reach of her husband’s creditors.</p>

<p>Guarantor released by conduct of Person holding the Guaranty. — Records, Eoidence explanatory of, when admissible.</p> <p>1. A guarantor of a mortgage is not liable on his guaranty, if the act of the holder prevent the collection of the debt from the mortgagor.</p> <p>2. One holding a mortgage, on which a balance was due, assigned it to another, with guaranty of payment: the mortgage being sued out and a verdict had for less than the amount for which it had been assigned, the counsel for the guarantor moved for a new trial, on the argument of which, the attorney of the assignee filed a paper alleging that neither he nor his client had moved for the new trial, and that he was not aware of any grounds therefor, the counsel for the guarantor protesting against the withdrawal of the rule, and giving notice that it would be considered a discharge of the guaranty: the rule being dismissed on the ground of the paper filed by the plaintiff, suit was brought on the guaranty, on the trial of which, it was Held, that the act of the attorney of the assignee in discontinuing the rule for the new trial against the consent of the guarantor, discharged the guaranty. .</p> <p>3. Evidence of what transpired concerning the motion for a new trial was admissible on the trial of the action on the guaranty, it being only explanatory of the record, and not contradictory to it.</p>

On the 7th of October 1857, to August Term 1857, No. 161, a judgment was entered in the Court of Common Pleas of Lehigh county, in favour of Samuel Keiper against Samuel Helfricker and Elizabeth Helfricker, for the sum of $1000, on a bond and warrant of attorney dated April 3d 1856, payable April 3d 1857.

This waSc&n-. appeal hy Ann Mackason from the decree of the •Common.. Held: that having done this, his deed was not void.

This was an appeal by Thomas S. Kenton, from the decree of’ the court below, on a bill filed by Jacob Vandergrift, directing him to convey to… Held: down to the time of the filing of the bill. That, on the 28th of May 1838, Jacob Vandergrift, the complainant, was indebted to divers persons in the sum of $140, and was seised as of fee of a frame messuage and lot in said township, and agreed with Kenton to convey to him the same, to hold as security for the payment.

<p>Charge in Family Booh, when considered an Advancement to Legatees, and when a Loan.- — The doctrine of Advancements discussed.</p> <p>1. A testator by will declared his intention to advance to each of his daughters, a sum on her marriage, to be deducted from her share, and did so charge each in his “ family book” with the sum advanced, as also a son with the amount of a note paid for him, declaring that he had charged it, as he had against his daughters, what they had received. Held, that the sum charged the son was an advancement, though the testator had made loose memoranda or written statements to the effect that it was a loan.</p> <p>2. Where the debt was paid for the son in 1853, and the testator died in 1858, the date of the death fixed the relations between them, and therefore, as a loan it was not barred by the Statute of Limitations, though more than six years had passed before settlement of the estate: hence, the executors might set it off against any legacy coming to him under the will.</p>

<p>School Districts not strictly Municipal Corporations. — Power of School Directors to assess Taxes.— To whom amenable for Misconduct.</p> <p>1. School districts are not strictly municipal corporations, hut territorial divisions for the purposes of common schools, exercising within a prescribed sphere many of the faculties of a corporation.</p> <p>2. Under the School Law of 8th May 1854, the power of taxation is committed to the school directors, but without any right of appeal: and in the exercise of such discretionary power, they are responsible only to the people whose representatives they are.</p> <p>3. The courts may compel school directors to perform their duties, or restrain them when they transcend their powers: but they cannot interfere, where they exercise their unquestionable powers unwisely.</p> <p>4. The school directors of a township having assessed a school tax of eleven mills, eight for school purposes and three for building new schools, a property-holder filed a bill in equity for an injunction to restrain the collector from enforcing the payment of the tax, on the ground that it was greatly in excess of what was necessary, but not alleging any irregularity, neglect of duty, or excess of authority in the directors. Held, that as the bill averred only an indiscreet exercise of a clearly granted discretion, it was in effect an appeal from that discretion, and as such could not be sustained, for no appeal is given by the law.</p>

<p>Negligence. — Liability of Corporation for Carelessness or Violence of Agents.</p> <p>1. A railroad company is liable for injuries resulting from the negligence, violence, or carelessness of its conductors, in removing from the cars a passenger who refused to pay his fare or produce his ticket, in consequence of which he died.</p> <p>2. Where there was evidence on the trial, that the conductor forcibly removed the hands of the deceased from the car-railing so that he fell on the track of the road, and that ho did die from the injuries then received, it was not error in the court below to refuse to instruct the jury “that under all the circumstances of the case their verdict should be for the defendant.”</p>

<p>Deed.— Construction of, where Premises and Habendum differ. — Life Estate, and Estates in Tail. — Rule in Shelly’s Case, when inapplicable.</p> <p>Where one by deed conveyed land to another, “ his heirs and assigns for ever, subject to the limitations hereinafter expressed as to part thereof," limiting-in the habendum the estate of the grantee as to one-half, to his own use during his natural life, and at his decease to descend to his children by him lawfully begotten, and to the issue of such as were then deceased. Reid,</p> <p>1. That the habendum in reducing the estate in one-half to a tenancy for life was not repugnant to the premises of the deed, and for that reason void; but, that the grantee took by the deed, a fee simple as to one-half of the land granted, and a life estate in the other, with remainder in fee to his children or their issue :</p> <p>2. That the estate in the grantee as to the part granted to him during his natural life was a life estate, and not a fee tail, for the manifest intent of the grantor, as inferred from the terms of the grant, was that the remainder-men should take as purchasers, and not by descent, or heritable succession ; and no remainder was limited to the heirs of the grantee as such, so that the rule in Shelly’s Case could apply.</p>

<p>Assignees for Creditors in Banhruptcy, when Terre-Tenants and entitled to Service of sci. fa., to revive Lien of Judgment. — Remedies at Law between Tenants in Common. — Equity Courts have no Jurisdiction when Account is on one side, unless Discovery be sought.</p> <p>A tenant in common with two others, of certain lands, gave judgment upon his interest to a creditor, and the same year made an assignment for benefit of all creditors who should release before a given time: four years after, he was discharged as a bankrupt: the judgment was then revived by writs of scire facias, and after investigation on a rule taken to show cause why it should not be opened, was ordered by the court to be entered on the land of the defendant on which the original was a lien: on this judgment the defendant’s interest was sold at sheriff’s sale: the vendees of the purchaser then brought a bill in equity for an account of the rents, issues, and profits of the land, against the other tenants in common. Held,</p> <p>1. That as the writs of scire facias, arid the rule to show cause, &c., had not been served on the assignee either under the voluntary assignment, or in bankruptcy, nor on any releasing creditor, nor any notice given to creditors under either assignment, some of the parties interested in the title alleged to have passed at sheriff’s sale, were not represented: hence, as a decision would not be binding on them, the bill must be dismissed, but without prejudice to the rights of any of the parties.</p> <p>' 2. The appropriate remedy of the plaintiffs, the purchaser’s vendees, to compel the defendants to acknowledge their title, and admit them to a joint possession, was by ejectment at law, and not in equity: and thus they could recover the rents in assumpsit.</p> <p>3. Courts of equity have concurrent jurisdiction with courts of law in matters of account, where the accounts are mutual and complicated, and one side only, where discovery is sought and is material to reliefbut where the accounts are all on one side, and no discovery is sought or required, the case is not one for a court of equity.</p>

<p>Former Recovery, when properly pleaded. — Improper Plea will after Verdict he considered as if demurred to. — Defence to Action for Conspiracy to defraud Creditors.</p> <p>1. In an action of trespass on the case in the nature of a writ of conspiracy for fraudulently secreting and transferring the goods of a defendant in an execution from the reach of the plaintiff, the defendant pleaded that the same questions as to fraudulent conduct had been made and tried on a scire facias against garnishees, in an attachment execution wherein defendant was a garnishee, and that there was judgment therein for the defendant: on the general issue in the action of trespass, there was a verdict for the plaintiff, but the plea being traversed, on the issue thus framed, there was a verdict for the defendant: the court below entered judgment for the plaintiff for the damages found: on writ of error it was Held, that the question as to the fraudulent conduct of the defendant being raised incidentally only, on the scire facias, and its decision, not essential to that judgment, which was conclusive of nothing more than that the garnishee had not at the time goods of the defendants in his hands, the judgment on the attachment could not be pleaded as a former recovery in the action of trespass : hence, it was not error to enter judgment for the plaintiff on the general issue for the damages assessed.</p> <p>2. The pleas being bad, they should have been demurred to by the plaintiff, and not traversed: but after the verdict of the jury, the same effect will be given to them, as if they had been demurred to: and they are not aided by the fact that immaterial issues have been formed upon them and found for the defendant.</p> <p>3. Where the fraudulent acts complained of were committed in 1850, it is not a defence that in 1856, the trustees under the insolvent laws, of one of the defendants, J., had brought an action of assumpsit against the other defendant, W., to’recover the value of the property fraudulently assigned by J. to W., and had recovered a verdict and judgment: nor was it error in the court to refuse to charge the jury that if the goods sued for in that action were the same as charged to have been fraudulently secreted from the plaintiff, their verdict should be for the defendants: for the plaintiff’s right to recover damages for the unlawful acts of the defendants in 1850, could not be affected by a recovery in 1856 for the goods, or their value.</p> <p>4. Testimony was not admissible on the trial of the general issue, that one of the defendants, before the alleged fraudulent transfer, had endeavoured to make sale of his property ; because, if admitted, it would not have shown that the arrangement made with his co-defendant, was honest, and it was therefore irrelevant.</p> <p>5. Where on an amicable reference to settle the accounts of the defendants, the statement of one of them, J., was produced and read before the arbitrators in the presence of both, without objection on the part of the other defendant, W., except as to one item, the paper containing the statement, identified and proved by one of the arbitrators, held admissible as evidence to show assent on the part of W. to the account as stated by J.: and though from the whole testimony the evidence of such assent was but slight, still it was for the jury, whose province it was to say how much of the account had been proved.</p>

<p>Construction of Will. — Conversion of Real Estate into Personalty.</p> <p>1. To establish a conversion of land into money under a will, the sale must be absolutely directed, irrespective of all contingencies: the direction to sell must be imperative, independent of all discretion.</p> <p>2. A testator by will directed that when his son O. became of legal age, appraisers were to be chosen to value the homestead farm, which the son was to have at the valuation if he chose; if he refused, the executors were to sell, &c.: a married daughter survived the testator, and then died before O. became of age, intestate, leaving one son, -who died soon after: her husband then claimed her share as personalty. Held, that, as the directions of the testator in the will to sell, were not absolute, but contingent and subject to the discretion of one or more, there was no conversion up to the death of the daughter: consequently her interest remained as it had descended to her from her father, as land, in which her husband was only entitled to his estate by the curtesy.</p>

<p>Construction of Agreement as to 'Right of Way. — Extrinsic Evidence, when admissible.</p> <p>One living in a log house, and occupying for household purposes a frame building adjacent, leased a right of way over the land of another, so long as he should reside “ in his now dwelling-house, and no longer:” after a time he and his family began to live in the frame house, still continuing to use the log-house for domestic purposes, when the right of way was obstructed: in an action of trespass on the case, it was Held, that both buildings constituted but one residence, and as a change in the use of the different parts was not a change of residence, the plaintiff had continued to reside in the dwelling-house mentioned in the lease, and was therefore entitled to his right of way.</p>

This was an amicable action between the Lackawanna Iron and Coal Company, plaintiffs, and The County of Luzerne, defendant, in which the following ease was stated for the opinion of this court:— The plaintiffs were incorporated by an act of the legislature of this state, entitled “ An Act to incorporate the Lackawanna Iron and Coal Company,” passed the 5th day of April 1863: P. L. 306, and.a supplement thereto, passed the 2d day of May 1855, P. L. 398, which acts are to be…

<p>Interested Witness, release of.— What Interest does not disqualify. — • Reference to facts without binding Instruction, no cause for Reversal.</p> <p>1. The daughter and residuary legatee of a testator is a competent witness for the executor, upon her assignment to him individually of her interest in the cause of action in suit, he agreeing that no part of the costs and expenses of the suit should become chargeable upon her residuary share.</p> <p>2. Though such an agreement would not be binding upon him as executor, as the estate would be liable for costs in case of loss without regard to it, and thus diminish her residuary interest, yet as the ultimate liability of her share would depend upon the contingency of a failure to recover, and of the insufficiency of the other two-thirds of the residuary estate to pay the costs in case of loss, the liability for costs was too remote and contingent to exclude her as a witness.</p> <p>3. Where the court in the charge referred to the fact that a co-promissor of the defendant had not been called as a witness, and instructed the jury that they should take it into consideration in determining the credit they should give to the witnesses, without giving any binding instruction as to the omission, the reference was, but a natural deduction from the circumstance, and such instruction was not error*</p>

This was a foreign attachment in case by John Lentz, Robert McIntyre, and Lafayette Lentz, partners as Lentz, McIntyre & Lentz, against Pierre Choteau, Jr., with scire facias to the Allentown Railroad Company, Daniel Tyler and others, as garnishees of the defendant.

This was an action of trespass, brought before a justice of the peace, by De Witt C. Roberts against John Young, J. W. Brundago, and William Brundage, for levying on and selling a mare in his possession, as the property of his son George.

<p>What Transfers of Property are within the Assignment Act of March 2-íth 1818. — Fraud, when a Question for the Jury.</p> <p>1. An assignment or transfer of property made directly to the creditors beneficially interested in it, whether in satisfaction of, or as a security for their debts, is not within the Assignment Act of 24th March 1818, and is not void because the instrument containing the transfer was not recorded as directed by that act.</p> <p>2. A debtor by one instrument transferred to his creditor H. as security for his indebtedness, all his interest in a colliery, with right to possession and to work it, stipulating that after working out the indebtedness with expenses, the grantee should pay whatever balance remained, as he the grantor should direct: by another instrument executed on the same day, he sold to the firm of H. & Go., the drift cars in the colliery, which were afterwards levied and sold on an execution of another judgment-creditor, and trover brought for the cars, on the ground that the instruments were an assignment for the benefit of creditors, and void because unrecorded, &c. Held, that the transfer of the cars was an absolute sale and not an assignment in trust for creditors; and (whether taken alone or in connection with the transfer of the colliery) established no trust in the cars: and that the conveyance of the colliery to one of a firm as security for indebtedness to him and to the firm also, was not an assignment for the benefit of creditors under the Act of 24th of March 1818.</p> <p>3. The stipulation that after working out the indebtedness of the grantor, the grantee should pay balances as he the grantor should direct, did not avoid the instrument as against his creditors.</p> <p>4. Such an assignment or transfer is valid against creditors, unless made with intent to hinder, delay, and defraud them ; and where there was nothing in the assignments or transfers themselves, which made them fraudulent in law, the question of fraud must be submitted to the jury to determine whether there was fraud in fact.</p>

<p>Constitutional Law. — Act of 1861 allowing deduction from Term of Imprisonment on account of good Conduct, unconstitutional. — Supreme Court will not interfere with the Conduct of Public Officers to whom, discretionary powers are allowed by law.</p> <p>1. The Act of Assembly of May 1st 1861, providing for a graduated deduction from the term of imprisonment for which a prisoner is sentenced to the State Penitentiary, as a reward for good conduct, is an interference with the judgment of the court sentencing the criminal, and it is therefore unconstitutional.</p> <p>2. Where in the act a measure of discretion was left to the inspectors of the Penitentiary, in carrying out its provisions, and in the execution of that discretion, they declined to discharge the prisoners or to execute the act, on. the ground that public justice would not be promoted thereby, the Supreme Court will not control that discretion, if the reasons assigned by the inspectors are such as justify their course.</p>

This was a feigned issue under the Sheriff’s Interpleader Act, in which D. Stewart, E. Noble, O. F. Ingram, and S. Sweet, partners doing business as D. Stewart & Co., were plaintiffs, and M. S. Wilson, W. C. Ward, L. R. & D. Searle, W. & W. II. Jessup, W. M. & J. A. Post, A. Chamberlain, A. Bacon, II. D. Pinney, L. Wartrous, and H. J. Webb, were defendants.

<p>Error to the Common Pleas of Northampton county.</p> <p>This was an action brought June 14th 1857, in the name of the Commonwealth for the use of Jacob S. Heller, administrator of John Hartzell, deceased, against Jonathan Hartzell, Michael Weaver, and Daniel Whitesell, on the bond given by John Hartzell as administrator de bonis non, with the will annexed, of John Hartzell, Sr., deceased; in which the following case was stated for the opinion of the court:—</p> <p>; On the 11th of June 1853, John Hartzell, Michael Weaver, and Daniel Whitesell, the defendants above named, executed and delivered a bond as follows, to wit:</p> <p>“ Know all men by these presents: That we, John Hartzell, of Forks township, Michael Weaver, and Daniel Whitesell, of the borough of Easton, in the county of Northampton, are held and firmly bound unto the Commonwealth of Pennsylvania, in the sum of twenty-four hundred dollars, to be paid to the said Commonwealth ; to which payment well and truly to be made, we do bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, for, and in the whole, firmly by these presents.</p> <p>“ Sealed with our seals, dated the 11th day of June, in the year of our Lord, one thousand eight hundred and fifty-three.</p> <p>“ The condition of this obligation is, that if the above bounden John Hartzell, administrator de bonis non with the will annexed of all and singular the administered goods, chattels, and credits of John Hartzell, Sr., late of Plainfield township, deceased, do make or cause to be made, a true and perfect inventory of all and singular the unadministered goods, chattels, and credits of the said deceased, which have come or shall come to the hands, possession, or knowledge of him, the said John Hartzell, or into the hands and possession of any other person or persons for him, and the same so made to exhibit or cause to be exhibited into the register’s office in the county of Northampton, within thirty 'days from the date hereof, and the same goods, chattels, and credits, and all other the goods, chattels, and credits of the said deceased at the time of his death, which at any time after shall come to the hands and possession of the said John Hartzell, or into the hands and possession of any other person or persons for him, do well and truly administer according to law. And further do make or cause to be made, a just and true account of his said administration, within one year of the date thereof, or when thereunto legally required, and all the rest and residue of the said goods, chattels, and credits, which shall be found remaining upon the said administration account, the same being first examined and allowed by the Orphans’ Court of the county having jurisdiction, shall deliver and pay unto such person or persons as the said Orphans’ Court, by their decree or sentence, pursuant to law, shall limit and appoint, then this obligation to be void; otherwise to remain in full force.”</p> <p>Signed and delivered by the defendants in presence of the register'.</p> <p>John Hartzell, Sr., died on the 1st day of November, A. ». 1844, having first made a will, which, on the 27th day of November, A. D. 1844, was duly admitted to probate by the register of Northampton county, and letters testamentary thereon were issued to Timothy Stotz and Jonas Hartzell, the executors therein named.</p> <p>The will is in part as follows, to wit: First. “ I give and bequeath unto my beloved wife Margaret Hartzell, during her life, the sole use of my messuage and lot of ground where I now live, situate in Plainfield township aforesaid, containing about two acres, bounded by lands of John Weaver, Robert Levers, and others, together with the undivided one half part of a lot of about thirty-two acres of timber land lying towards the Blue Mountain, adjoining lands of John L. Heller, deceased, and others, and from which my wife is to receive her fire-wood, and such other wood as may be wanted for fencing, on the first aforesaid lot of land. In addition to which, I give to my-said wife for the term aforesaid, one cow, one complete bed and bedstead, one stove with pipe, together with all such other articles of household furniture and kitchen utensils, as she may see fit to keep, all of which I give unto her, for and during her life, and so far as the rest and residue of my personal property, I do direct that my executors hereinafter named, do expose the same to public sale, and, with the proceeds therefrom, to pay my funeral and other expenses and debts, so far as the same may reach; and further, it is my will, and I do direct, that as soon after the decease of my said wife Margaret, as conveniently may be, my executors to sell and dispose of my real estate whatsoever, to the best advantage they can, hereby giving authority to sell and convey the same by such deed or deeds of conveyance, as may be necessary to convey the same in fee. And also to dispose of the personal property left to my said wife as aforesaid, and, with the proceeds arising out of said estate, both real and personal, after deducting all the necessary expenses, and paying all such debts and demands as yet remain unpaid, to divide the balance which may remain in their hands, amongst all my heirs, share and share alike, excepting that the share coming to my daughter Sarah, intermarried with J. H. Bauman, M. D., which I do hereby direct to be put out on interest by my executors, and she to draw the same yearly during her life, and after her death to be equally divided among her heirs, share and share alike. And further, it is my will that if, at any time, my said wife Margaret should prefer to leave the aforesaid premises and lot of land, by going to live with some one or other of her children, then and in that case, I direct the same to be sold, and my said wife to draw the interest of the one-third, and otherwise to be distributed as aforesaid.” There was also a codicil to said will, giving to one Charles Hartzell the sum of ¡$25, after the death of the widow. It is agreed that the entire will and codicil remaining in the office of the said register, be considered and treated as a part of this case, as the same had been fully set forth therein. Timothy Stotz and Jonas Hartzell, the executors, died between the date of their letters testamentary and the 11th of June, A. d. 1853, without having filed any inventory or taken any other step towards the settlement of the estate. On the 11th of June, A. D. 1853, letters of administration de bonis non, with the will annexed, of John Hartzell, Sr., were granted by the aforesaid register, to John Hartzell, Jr., one of the defendants. On the same day the said John Hartzell, Jr., with Michael Weaver and Daniel Whitesell, the other two defendants, entered into the bond above recited.</p> <p>On the 25th of August, A. d. 1855, Elizabeth Stotz and Margaret Miller, daughters of John Hartzell, Sr., presented their petition to the Orphans’ Court of Northampton county, setting forth, among other things, the issuing of the said letters of administration, with the will annexed, to the said John Hartzell, Jr., that the said John Hartzell, Jr., had never filed any account of his administration of the said estate, and that the said John Hartzell, Jr., had become insolvent, and had, on the 5th day of February, A. D. 1855, made an assignment of all his estate to trustees for the benefit of his creditors; and praying the said court to award a citation to the said John Hartzell, Jr., commanding him to appear, &c., and to show cause, &c., why he’ should not file his accounts, &c., and also why he shall not be discharged from his office as administrator, &c., as aforesaid, and some other suitable person or persons be appointed to succeed him therein, &c.</p> <p>On the 31st of October, A. D. 1855, the citation issued upon the said petition was served on the said John Hartzell, Jr.</p> <p>On the 5th of December, A. d. 1855, the court ordered the petition to be taken pro aonfesso, and appointed Philip Johnson, Esq., auditor, to report the facts and state an account.</p> <p>On the 22d day of August, A. d. 1856, the auditor made a report, in which he stated the following account against the said John Hartzell, Jr., as administrator, with the will annexed, &c., as aforesaid, to wit:—</p> <p>John Hartzell, Jr., administrator de bonis non of John Hartzell, Sr., deceased, is charged as follows:</p> <p>1853, Dec. 31. — To one-half of the proceeds of sale of a lot of 32 acres, or thereabouts, of which the testator owned the undivided one-half, at $21.90 per acre . . . $350.62</p> <p>1855, Feb. 27. — To amount of inventory of personal property filed .... 22.27-J</p> <p>$372.89-|</p> <p>Cr. is allowed for the following payments:</p> <p>1853, June 11th. — To Samuel Seigfried, register fees . . . $3.31</p> <p>“ “ 14th. — To A. H. Senseman, advertising . . . 2.00</p> <p>“ “ “ —To John Brinker and J. Lerch, appraisers, . 2.00</p> <p>“ “ 19th. — To Charles Bauer, crying sale .... 4.00</p> <p>1854, April 21. — Amount paid Franklin Stotz, guardian . . 80.00</p> <p>$88.31</p> <p>Balance due estate . . . $284.58£</p> <p>The auditor also reported that the costs of the proceedings before him amounted to $33.30, and that the sureties were liable for the same.</p> <p>On the same day, the said court directed the said John Hartzell, Jr., to give security as administrator, with the will annexed, &e., within five days, in the sum of $600, to be approved of by the court.</p> <p>On the 29th of August 1856, John Hartzell, Jr., having failed to give the required security, the court vacated his letters of administration, and awarded neVr letters to be granted by the register.</p> <p>On the 21st day of November, A. D. 1856, letters of administration, with the will annexed of said John Hartzell, Sr., were granted by the said register to Jacob S. Heller, Esq., the plaintiff in this action.</p> <p>At the term of the said Orphans’ Court of November, A. D. 1856, the said auditor’s report was finally confirmed, to wit, on the 21st day of November, A. D. 1856.</p> <p>On the 22d of August, A. D. 1857, the said Michael Weaver and Daniel Whitesell presented a petition of review, to which the said Jacob S. Heller made answer on the 20th of November, A. D. 1857.</p> <p>On the 28th of August, A. D. 1858, the court made a final decree, by which they left the above account unchanged, but directed that the statement by the auditor, that the sureties are liable for the costs of the proceedings, be rejected as error. The entire proceedings in the Orphans’ Court in relation to the estate of the said John Hartzell, Sr., deceased, to be considered and treated as a part of this case stated, as though the same had been fully set forth therein.</p> <p>Margaret Hartzell, the widow of John Hartzell, Sr., died on or about the--day of -, A. D. 185-, after the sale of the real estate by John Hartzell, Jr., with the proceeds of which he is charged by the auditor. She was still living- on the premises at the time of said sale.</p> <p>On the 3d of June, A. D. 1859, the said Jacob S: Heller received of the assignees of the said John Hartzell, Jr., a dividend of $15.35 on account of the balance found due by the said auditor aforesaid. This action is brought upon the bond above recited.</p> <p>The questions submitted for the decision of the court were, 1st. Whether the sureties in the said bond are liable for the balance'of the account decreed against the said John Hartzell, Jr., as administrator, &c., as aforesaid. 2d. Whether the said sureties are liable for the costs of the proceedings before the auditor, aforesaid. If the opinion of the court shall be in favour of the defendants upon both questions, their judgment to be entered for the defendants generally. If the opinion of the court shall be in favour of the plaintiff on either or both points, judgment to- be entered in favour of the Commonwealth for $2400,_ the penalty of the bond. If the opinion of the court shall be in favour of the plaintiff on the first point only, then judgment to be entered for the plaintiff, Jacob S. Heller, according to the following calculation, to wit:—</p> <p>Balance decreed by the court .... $284.58J</p> <p>Interest from 21st November 1856 . . . 00.00</p> <p>Deduct dividend received.....15.35</p> <p>If the opinion of the court shall be in favour of the plaintiff on the second point only, then judgment to be entered for the plaintiff, Jacob S. Heller, for . $33.50</p> <p>Interest from 21st November 1856 . . . 00.00</p> <p>If the opinion of the court shall be in favour of the plaintiff in both points, the judgment to be entered for the plaintiff, Jacob S. Heller, for the following sum, to wit:</p> <p>Balance of account...... $284.581-</p> <p>Costs ........ . 33.30</p> <p>$317.88J</p> <p>Interest from 21st November 1856 . . . 00.00</p> <p>Deduct dividend...... . 15.35</p> <p>$000.00</p> <p>February 23d. — The court below gave judgment for the plaintiff, as follows :</p> <p>Balance . $284,581</p> <p>Costs . 33.30</p> <p>$317.88-1</p> <p>Interest from 21st November 1856 . 81.05</p> <p>,93J</p> <p>Deduct dividend . . ” 15.35</p> <p>•58i</p> <p>Which decree was assigned here for error by the defendant.</p>

<p>Construction of Will.— Collateral Inheritance Tax on Legacies directed to be paid in, full, by whom payable.— Commissions of Executors, for services rendered as Trustees xmder the Will, disallowed.</p> <p>1. A testator provided that all his devisees should pay and discharge “ all taxes, ground-rents, and other legal and necessary charges upon the real estate devised to them,” &a„ when the same became due and payable: also, that, “ not wishing such gifts, devises, and bequests, to be at all interfered with or lessened,” all legitimate charges against his estate were to be paid by his executors. On a case stated, as to liability to pay the collateral inheritance tax, it was Held, that the devisees, and not the executors, were bound to pay it, that the tax could not be regarded as lessening or interfering with the devise, and was not a proper charge against the estate.'</p> <p>2. Where the testator gave to his executors full commissions for general services in carrying out the provisions of his will; also, the right to charge his estate for additional services in executing his will and codicil, and in addition, each one-tenth of the residuary personal estate, as further compensation : and, in accordance with a trust cast upon the executors by the will, they had, after the death of a devisee for life, subdivided and conveyed certain real estate to those entitled thereto, they were not entitled to receive commissions for such services from the grantees of the real estate so conveyed, though the services were performed by them as trustees, and not as executors; for the trust was a part of the will, and was carried out by the executors, for whom the testator had provided ample compensation, out of his estate, for all services, in administering his estate.</p>

<p>Affidavit of Defence Law extends to Action on Judgment of Surrogate’s Court of New Yorh. — Foreign Judgment, when valid in Pennsylvania. —Foreign Administrator, when allowed to sue in this State. — Act of 1832, § 6, relative to intermeddling with Assets of Decedents, construed. —Service of Process of Foreign Tribunal, when valid.</p> <p>1. An action of debt in Pennsylvania upon the record of the Surrogate’s Court of the city and state of New York, is within the Act of Assembly allowing judgment for want of a sufficient affidavit of defence.</p> <p>2. Where a debt, fixed by the decree of a court of competent jurisdiction in another state, is due by citizens of Pennsylvania to the estate of one who had his domicil at the time of his death in said foreign state, the administrator of the domicil may sue for and recover the debt, in the courts of this state, without first taking out letters of administration here.</p> <p>3. Two brothers of one who died domiciled in New York, took out letters of administration there, gave bond, received the estate of the decedent, and afterwards removed to Pennsylvania, without settling an account: by proceedings before the surrogate, who had jurisdiction, they were dismissed, and an account stated against them, which they were decreed to pay to the administrator appointed in their stead: the administrator then brought an action of debt in the District Court on the record against them, and recovered judgment for want of a sufficient affidavit of defence. Held, that the decree of the surrogate, being unappealed from, was conclusive of the right of the plaintiff to recover from the defendants the money of the estate in their hands, that the fund was not subject to administration under Pennsylvania statutes ; and that the 6th section of the Act of 1832, which forbids intermeddling with the assets of a decedent’s estate, unless letters of administration were first granted here, did not apply to a fund which was the product of assets not subject to the jurisdiction of Pennsylvania courts, and which were being duly administered in the jurisdiction to which they belonged.</p> <p>4. Where the process of the Surrogate’s Court of the state of New York, requiring the defendants to appear and settle an account, was served upon them in the city of Philadelphia, held, not a reason for reversing the judgment: for the surrogate had jurisdiction after granting the administration, and it was the duty of the defendants to appear and settle their account without any summons.</p>

This was an action on the case, brought in the court below, July 16th 1860, by John Weeks against Barclay Lippencott. The case was this : — In 1858, John Weeks, the plaintiff, owned and still owns and occupies a house and lot in the village of Jenkintown, Montgomery county.

This was an action of assumpsit by Jacob Bodey against Thomas Saurman, deceased. Pending the suit the defendant died, and Catharine Saurman and James Hoover, his executors, were substituted. The plaintiff declared on a promissory note for $650, dated Norristown, February 6th 1856, at five months, by Charles Lancaster, to the order of Thomas Saurman, endorsed by Thomas Saurman, John Jacobs, and Jacob Bodey; to which defendants pleaded non assumpsit.

<p>Construction of Will. — Apportionment of accruing Dividend given to Legatees. — “ Residuary Legatees,” who are included in general Expres- . sions relative to.</p> <p>1. A testator devised to his wife “ the yearly dividend in the wire factory in South Easton, during her natural life;” providing further, that if “at any time during her life the income of said factory be less than $2000, the difference shall be made good from some other property belonging to my estate.” The factory company on the 1st of January in each year took an account, and made an annual dividend of the profits of the preceding year, which was done on the 1st of January succeeding testator’s death. Held, that the dividend so made was not apportionable, the intention of the testator being to give it as an entirety and not as a regularly growing income, for the support of his widow.</p> <p>2. Whore, owing to litigation, and the provisions of the partnership agreement of the factory company, there were no dividends declared either to the widow or the estate, for two successive years after testator’s death, she was entitled to the legacy or annuity substituted in lieu thereof.</p> <p>3. Where by his will the testator had given to his wife real and personal estate “ in lieu of her dower or her one-half” of his estate, she is not entitled to a share of the residue, which he directed to be divided “ amongst the whole of heirs already named" in the will “ proportioned agreeably to the several amounts given to each in the body” of the will.</p>

<p>Jurisdiction of Gourt of Equity in cases of disputed Possession between Tenants in Gammon of Beal Estate. — Constitutionality of Act of April 22d 1856. — Trial by Jury to be preserved.</p> <p>1. A court of equity have no jurisdiction of a bill in equity brought by one tenant in common against an alleged co-tenant to obtain the possession and enjoyment of mining rights and privileges, founded on legal title, until those rights have been established at law.</p> <p>2. The remedy of the complainant is at law, whether his rights are corporeal or incorporeal, and amounting to an interest in the coal and minerals in the land charged in the bill: where the title is legal, the case is not within the jurisdiction of a court of equity.</p> <p>3. The Act of April 22d 1856, giving a tenant in common in coal or iron mines, whose right is denied or resisted, the power to apply by petition in equity to the Court of Common Pleas of the county where the lands may lie, who should adjudicate and determine the rights of the several parties according to the course of a Court of Chancery, conflicts with the constitutional right of the citizen to have controverted questions of fact in common law causes decided by a jury: and it is applicable only.to eases in which the rights of the complainants are equitable.</p>

<p>Concurring Negligence, Damages not recoverable for. — Measure of Damages for Personal Injuries.</p> <p>1. One cannot recover damages for an injury caused concurrently by bis own negligence, and the negligent or unskilful acts of the defendant.</p> <p>2. The unauthorized use of the track of a railroad is such negligence as will prevent a recovery of damages for any injury, not intentional or wanton, resulting therefrom, to the person so using it.</p> <p>3. Hence, where in an action for damages resulting from a collision by coal-cars running upon a railroad (which were in charge of the defendant, who was not in the employ of the railroad company, but was temporarily conducting them), with a truck of the plaintiff with which he was carrying on a trading business along the line of the railroad, without the authority of the company ; in consequence of which collision the plaintiff lost his foot, horse and truck, the jury were instructed, that if the defendant was unlawfully upon the road, and in consequence of his neglect and unskilful management of a train of cars, which he had improperly taken in charge, the plaintiff might recover, without any reference to the question whether the plaintiff was unlawfully and negligently upon the track, such instruction was error.</p> <p>4. Where the court charged “ that there was no certain rule by which to estimate the damages for the personal injury to the plaintiff, and that the jury will fix them at such sum as they think right and proper under the evidence,” it was Held, that the instruction should have been more precise, and that as the injury was not wilful, compensation was all that the plaintiff could claim: there was no room for vindictive damages.</p>

<p>Dissolution of Foreign Attachment does not release Garnishee. — Proof of consideration for alleged Transfer. — Judicial Sale of Stock.</p> <p>1. In foreign attachment where an appearance is entered for the defendant, and judgment is entered for the plaintiff by agreement, the attachment is not thereby dissolved, but binds the debt in the hands of the garnishees as it existed when the writ was issued.</p> <p>2. A debt due by a firm, the builders of gas and water works, was attached in foreign attachment in the hands of the company at the suit of a firm creditor in January 1858: in February 1859, the company, in part payment of the debt due the contractor, issued 200 shares to S. B., one of the firm, and 200 to the firm, which the same month were sold and transferred by S. B. to L., the power of attorney for the firm transfer being executed only by him: in April 1859, judgment was confessed in the attachment and the stock levied and sold. In September 1859, the purchaser sold to J. B., another of the firm, to whom the company issued a certificate, having had no notice or knowledge of the assignment to L. by S. B. In Februai-y 1800, L. produced the original certificates and demanded a transfer to him, which being refused he brought his action therefor. Held, that under the circumstances, the sale under the judgment by the sheriff was as effective as if the plaintiff in the attachment had proceeded by scire facias against the garnishees, under the Foreign Attachment Law, and passed a good title to the purchaser for the stock.</p> <p>3. In an action against the company for refusing to permit the transfer, it was incumbent on the plaintiff, to enable him to recover, to show affirmatively that the transfer to him was for a valuable consideration</p>

<p>Religious Congregations. — Right of Majority to regulate Church Matters. — How far restrained by Form of Church Government.</p> <p>1. A majority of a church congregation may direct and control in church matters consistently with the particular and general laws of the organism or denomination to which it belongs, but not in violation of them.</p> <p>2. Where a congregation of one denomination forms a union with another, belonging to a different denomination, which had an established form of church government, that congregation is bound by the rules of the denomination which it has joined, and cannot afterwards secede therefrom by a vote of the majority of its members.</p>

<p>Estoppel in pais. — Revocation of Parol Authority to receive Money.</p> <p>A testator by will devised his farm to his wife, for a time limited, then to that one of his children who should accept it at the appraisement, excepting for her use during life all the iron ore on it: a son-in-law who had by acceptance under the will, and conveyances from the other heirs, become seised of the farm, sold, with the knowledge and consent of the widow for a stipulated price per ton, the iron ore in a certain field to a company; the dues for ore were paid to him or to her alone, or to either in the presence of the other: for a number of years he was allowed by her to receive half the profits, and the receipts of either were taken by the company: she then notified the company not to pay except to her ofder, which being refused, she brought an action to recover the ore mined for six months before, at the price stipulated. Held,</p> <p>1. That as under the will the widow was entitled to the profits of the iron ore for life, and there was no evidence that she had parted with her title thereto, she was not estopped from setting it up as against her son-in-law, whose right was but a benefit or privilege granted by her, and which she could revoke at her pleasure.</p> <p>2. That she was bound by the sale by him to the company made with her knowledge and consent, and was estopped from repudiating it so long as the ore-bed was worked in good faith.</p> <p>3. That her notice to the company was a good revocation of the authority of her son-in-law, to receive any part of the amount due for ore; and that consebuently the company were liable to her for all ore mined thereafter in assuiivpsit.</p>

<p>Construction of Deed. — Distinction between Mortgage and Deed of Trust. —Liability of Mortgagee in possession to account for Bents and Profits.</p> <p>1. The widow and heirs of an intestate, by a specialty in the nature of a mortgage-deed, conveyed all the real estate of the decedent to one of his creditors, with condition that when the debt then due, with such sums as he should advance to pay the debts of the estate, should be repaid with interest, then the indenture and all powers under it should cease and determine: a-power of attorney therein authorized the mortgagee to let the premises, receive the rents, pay collectors, interest, taxes, &c., and it was also provided, that he should be liable only for such moneys as he should receive, and that on his payment of debts or encumbrances, he might have them marked to his own use. Held, that the instrument was not a deed of trust, but a mortgage given to secure a present debt and future advances, upon payment of which the mortgagors were entitled to have it satisfied.</p> <p>2. Where the mortgagee had received rents on a part of the property for two years, and for the remainder of the time the rents were received by the mother or some of the heirs, and the proceeds applied to her support and that of the family, and the balance towards debts, interest, &c., with the acquiescence of the mortgagee, he is not liable for what was received by them, but only for the sums received by him which he was bound to apply in discharge of the mortgage-debt.</p> <p>3. The heirs, mortgagors, were accountable to each other, for the rents received, as tenants in common.</p>

Pleas of SchuyUcill county. Tbis was an issue under the Sheriff’s Interpleader Act, in which Michael Kleckner and Joseph Orwig were plaintiffs, and Keen, Sterling & Frank, Shultz, -Peiffer & Sieger, and Brooke & Fuller were defendants, to try the right of property in a certain stock of store goods wliich had been taken in , execution under judgments by the said defendants against Jeremiah and Charles Kleckner, partners doing business as J. & C. Kleckner.

<p> Bank Deposits by an “Agent” belong to Ms Principal. </p> <p>A deposit in bank by a depositor,- as “ agent,” is prima facie the property of his principal, and is not liable to attachment for the debt of the “ agent;” but in all such cases the name of the principal should be stated on the account.</p>