Volume 44 — Pennsylvania State Reports

<p>Rescission of fraudulent Contract for Sale of Land. — Duty and Liability of Vendee. — Form of Declaration in Action to recover bach Pur chase-Money. — Action in such Cases may be in Assumpsit, waiving the Tort. — “ Void,” “ Voidable,” defined. — Ratification of voidable Contract.</p> <p>1. Where a sale of land has been induced by the false and fraudulent representations of the vendor, the vendee must first tender a reconveyance before he can recover back the price paid.</p> <p>2. But the vendee, who claims to rescind the contract and recover back the price paid, is chargeable with reasonable care of the property in his possession, although the sale was fraudulent.</p> <p>3. Counts in the declaration, for a rescission provided for by contract, and for a rescission because of fraud, would not be repugnant: but one count for damages for the fraud and one for a rescission would be.</p> <p>4. A plaintiff may waive his action of tort for deceit, and sue in assumpsit for the money which he paid on the contract or which the defendant has received under it: but whore part of the consideration was land and claims against other persons, a recovery for them cannot be had under a count for money had and received, unless so far as the defendant may haye converted them into money: if more than mere rescission is sought, the plaintiff must sue for damages for the deceit.</p> <p>5. The terms void and voidable as used in statutes, text-books, decisions, and contracts, discussed, distinguished, and defined.</p> <p>6. A person wronged by a transaction is not bound by it, nor is ho bound to reject it, but may adopt or confirm it, or agree to be bound thereby: and if done in proper form, and with sufficient knowledge and deliberation, the ratification is binding.</p> <p>7. A contract tainted with fraud may be confirmed or ratified without a new contract founded on a new consideration : for a ratification is in general, the adoption of a previously formed contract, notwithstanding a vice that rendered it relatively void: but if it is in its terms invalid for want of consideration, or for illegality of form or of subject-matter or other such defects, a mere ratification cannot make it binding.</p> <p>8. Ratification of fraudulent contracts, how made, and by what parties.</p>

<p>Appeal from tbe District Court of Allegheny county.</p> <p>This was an appeal by John O’Neil, who survived Robert Hamilton, from the decree of the court below, in a proceeding in equity, on a bill filed by Margaret Hamilton, who was at the time the wife of Robert Hamilton, but who died during the pendency of the suit.</p> <p>The bill prayed for an injunction to restrain respondents from selling and conveying certain real estate there mentioned — that complainant might be quieted in the possession of the land — ■ .that the conveyances made to the appellant mig'ht be rescinded and overruled, and that respondents might be declared trustees thereof for complainant, and compelled to convey and assure the same to complainant.</p> <p>An answer having been filed, the case was referred to an examiner, on whose report a decree was made in accordance with the prayer of complainant, from which this appeal was taken.</p> <p>All the material facts of the case will be found in the opinion of this court.</p>

<p>Award, of Referees at Common Law, when final.— When and for what cause set aside..</p> <p>1. If an award at common law follows the submission, it is binding, though there be no express agreement to that effect: and it is not to be set aside, for mistake of the arbitrators, in law or fact, especially where none appear on the face of the award.</p> <p>2. Mistakes in fact or law may be excepted to in awards under rule of court or under voluntary submissions in pending actions, unless the parties have debarred themselves by express agreement.</p> <p>3. But a common law or statutory award is assailable for corruption or misbehavior of the arbitrators, though the parties have agreed that there shall be no exceptions or appeal.</p> <p>4. 'Where by the agreement of submission, the matters in dispute were to be specifically written out by each of them and submitted to the referees, with no provision for any other testimony ox parte or otherwise, it was such misbehavior in them as would vitiate the award to receive, pending the reference from the party in whose favour the award was made, an affidavit that a sum of money specified had not been paid, when in fact it had: as also, an unattested statement from the partner of the plaintiff, without notice to, or knowledge of the defendant: and evidence of such misconduct was properly received by the court in an action on the award.</p>

<p> Original Jurisdiction of Supreme Court in Equity. </p> <p>The Supreme Court will not assume original jurisdiction in equity, of a case, which was at the time of the filing of the bill, already under- consideration in the Court of Common Pleas, the equity powers of the latter court being as ample as those of the former.</p> <p>In the Supreme Court'pf Pennsylvania. Sitting in Equity in and for the Western District.</p> <p>This was a proceeding in equity, founded on a bill filed in the Supreme Court by Jamos P. Sterrett, administrator de bonis non cum testamento annexo of F. Lorenz, deceased, and Thomas Mellon, guardian of F. Lorenz, Jr., a legatee under the will of said deceased, against Thomas Wightman, Catharine Lorenz, James J. Gray, and F. R. Lorenz.</p> <p>All the material facts of the case will he found in the opinion of this court.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was a scire facias by William P. Baum, administrator, &c., of Thomas Wallace, on a mortgage given by Wallace to David Fitzsimons and John A. Fitzsimons, the plaintiffs, bearing date the 28th of June 1858, to secure the payment of $43,200, payable in five annual instalments ; the first of said instalments in two years with interest, payable semi-annually, for which twelve promissory notes recited in the mortgage, payable respectively at the dates aforesaid, were given.</p> <p>The mortgage provided “that in case default be made in the payment of any one of the said promissory notes for the period of thirty days after the same shall become due and payable as aforesaid, the whole of the said principal debt and interest accrued shall forthwith become due and payable, and a writ of scire facias may at once be issued on the mortgage, and prosecuted to judgment for the whole amount of the said principal debt and interest then unpaid, together with all fees and expenses of such proceedings, including an attorney’s commission of five per centum.”</p> <p>Wallace having made default in the payment of the first of the promissory notes recited in the mortgage, this writ of scire facias was issued for the whole-amount of the principal debt and interest.</p> <p>To this the defendant pleaded payment, and payment with leave, &c., with notice of special matter.</p> <p>The defence set up under these pleas, and mainly relied on, was, 1st, That the plaintiffs retained in their hands the sum of $7000 of the money for which the mortgage was given, and that they still have the said sum, less the amount paid by the plaintiffs for taxes and insurance of the mortgaged premises, and inasmuch as the said sum thus retained in the hands of the plaintiffs exceeded the amount of the first of, the said promissory notes which had become due and payable when the writ in this case was issued, the intestate was in no default, and the plaintiffs therefore had no right to issue the said writ of scire facias, and to prosecute the same to judgment; and even if the fact of the plaintiffs’ retention of the said moneys would not avail the defendant as a defence to defeat the plaintiffs’ action, ho is entitled to defalk the same against the amount of the plaintiffs’ claim.</p> <p>The defendant also claimed credit for the amount of the purchase-money of a portion of the mortgaged premises sold to and purchased by the plaintiffs since the issuing of the writ in this case; in regard to which there was no dispute.</p> <p>The plaintiffs conceded that the defendant is entitled, if he insists upon it, to defalk the amount of the moneys retained in their hands (less amount of taxes, insurance, &c., paid by them), as also to a credit for the purchase-money of a portion of the mortgaged premises.</p> <p>But they denied that under the evidence in this case the defendant could set up this defence, to defeat altogether their right of action. They alleged that it was agreed between the plaintiffs and the intestate that the former should retain the sum of $7000 until the supposed encumbrance on a portion of the mortgaged premises, arising under a deed of trust of Solomon Schoyer in favour of Walter Lowrie and others, which was given in evidence, should be removed or satisfied : and that having retained the said sum in pursuance of said agreement, and being ready and bound to pay it over as soon as said encumbrance was removed, they had no right to appropriate the same to the payment of the first of the said promissory notes recited in the said mortgage, and that therefore they had a right to sue out the scire facias on the mortgage when the defendant made default in not paying the note within thirty days after its maturity.</p> <p>But what the defence mainly relied on was that which arose under the plea of payment with leave, &e., set forth in defendant’s notice of special matter, viz.: that the mortgage was given to secure the payment of a loan of money by the plaintiffs to the defendant’s intestate, at a rate exceeding 6 per cent, per annupa, and that the defendant has a right to deduct such excess .from the amount of the mortgage-debt. The defendant alleging that the transaction, though purporting to be a sale of coal lands and a loan of money at 6 per cent, per annum, was not such in reality; but was in reality nothing more or less than a loan of money at a rate exceeding that allowed by Iuav, and that the coal lands were sold at a price. greatly beyond their market or cash value, for the purpose of covering up and concealing the usurious character of the transaction.</p> <p>The plaintiffs denied that the transaction Avas simply a loan of money, or that more than 6 per cent, per annum Avas reserved by them, and agreed to be paid by the intestate for the sum actually lent. They alleged that the transaction was in point of fact Afhat it purports to be, a sale of the coal lands in Washington county at $80 per acre, and a loan of $18,000, the Avhole to be paid in six years, in five instalments, with interest thereon, payable semi-annually, at the rate of 6 per cent, per annum. And they insisted that under the pleadings in this case, the defendant had given no such evidence as constituted any defence to the plaintiffs’ claim under the provisions of the Act of the 28th of May 1858, and that the court ought, as a matter of larv, so to instruct the jury.</p> <p>On the trial, the plaintiffs gave in evidence the mortgage recited in the writ, embracing a body of coal lying under the farm of Dutton Shannon, in Washington county, containing one hundred and fifty-six acres, three roods and eight perches, as also the coal, limestone, and other minerals, under a farm called Romania, on the Monongahela river, and being the same which had been conveyed by the plaintiffs to the mortgagor, which mortgage Aras to secure the unpaid purchase-money as above stated; and also the notes therein recited, the first of Avhich, for $1296, had become due more than thirty days before the issuing of the note; and rested.</p> <p>The defendant then, in accordance with his notice of special matter, offered in evidence the deed from the plaintiffs to Thomas Wallace, and proposed to offer evidence of the facts set forth in his notice of special matter, as above stated.</p> <p>The plaintiffs objected on the ground of irrelevancy, and that under the plea of payment Ayith leave, &c., the notice did not set forth any sufficient defence, in containing no tender of the. money received or reconveyance of the lands sold, and no production or offer thereof made in court; but the court admitted the evidence and sealed a bill of exceptions. The defendant then exhibited the said deed of conveyance, dated June 28th 1858, reciting a consideration of $25,200, and describing the said property as containing, in the aggregate, four hundred and twenty acres, more or less. He then called and examined as a witness Benjamin McLain, who testified that he was engaged in selling real estate, and negotiating loans, in 1858; that he was requested by Wallace, in the spring of that year, to effect a loan for him of 20,000; that he called on Mr. Fitzsimons, who took the matter into consideration, and agreed to make the loan in connection with his coal property on the Monongahela, of-which he named $60 per acre as the price; that he ultimately agreed to loan $18,000, which it was proposed to secure by a mortgage on the coal property and property here; that he advanced $11,000 of the money, which was applied mainly to the payment of judgments and mortgages that were then pressing; and that Wallace went up with the witness to see the property before negotiations made. The witness stated, on his cross-examination, that he had a previous knowledge of the property, having himself sold the principal portion of it (the Bomania farm) to the plaintiffs; that Mr. Wallace had been previously informed of it by William A. Irwin, another agent, rvho had put the matter into his hands to carry it out; that he believed the object of Wallace was 'to get the money, and that he (Wallace) proposed to get up a joint stock company, and dispose of it in that way. A paper was then shown to the witness and offered in evidence, dated June 25th 1858, purporting to have been signed by himself as “agent for Thomas Wallace,” containing a proposal to take the coal property in question at the rate of $60 per acre, conditioned that they would place with it the sum of $20,000 in cash, for which they would give mortgage on that and other property, payable in six years — the witness stating in this connection that this proposition was not accepted — the amount being afterwards reduced to $18,000, and other property included in the mortgage.</p> <p>He then offered a list of liens against Wallace for 1857 and 1858, showing dates and times of satisfaction, for the purpose of showing his pecuniary condition, to which plaintiffs objected as irrelevant. The court, however, admitted the evidence, and sealed a bill of exceptions at their instance.</p> <p>He then called a witness (Nathaniel Patterson) to prove the location and value of the coal property under the notice, to which the plaintiffs’ counsel objected, on the ground, inter alia, that the defendant had not shown the transaction to have been a loan, and the sale a condition precedent thereto. The court, however, admitted the evidence, and sealed a bill of exceptions thereupon.</p> <p>He then offered sundry depositions to prove the value of the land in the year 1858, all of which were admitted, subject to exceptions, and reserving the question as to their effect as evidence.</p> <p>After examining sundry witnesses in regard to the value of the land in 1858, defendant then offered in evidence a deed of Dutton Shannon and wdfe to the plaintiffs, dated August 14th 1858, for the purpose of showing the value at that date, which was objected to by the plaintiffs, on the ground that the sum named in the deed was not evidence of value. The court, however, admitted the evidence, and sealed another bill of exceptions thereupon.</p> <p>He then proposed to prove the value of the real estate of Thomas Wallace, and that the mortgage to plaintiffs covered it all except two pieces already mortgaged. The evidence was objected to by the plaintiffs as being incompetent, irrelevant, and not within the notice of special matter, but admitted by the court, and a bill of exceptions sealed -thereon.</p> <p>The plaintiffs, to rebut the evidence of defendant, called sundry witnesses to prove the value of the coal, and the acts and declarations of Wallace in relation thereto. They proposed to ask of one of these witnesses (John B. Hill) the price at which the land of Christian Wiggart was sold. This was objected to by the defendant, on the ground that the witness had already stated that all he knew in regard to the' sale was derived from the report of the neighbourhood. The objection was sustained by the court, and at the plaintiffs’ instance another bill of exceptions sealed thereon.</p> <p>He also proved the existence of an apparently unsatisfied encumbrance of $12,000 upon a part of the mortgaged property arising out of a deed of trust made by Samuel Baird to Solomon Schoyer, about the year 1851, for the benefit of Samuel Scott and Walter Lowrie, and that upon discovering the same, the fact was brought to the notice of the parties before the execution of the deed and mortgage, — that a receipt was afterwards produced for the part belonging to Scott, and that in the absence of any evidence as to the payment of the residue, and to protect the plaintiffs against it, it was agreed by the parties that the plaintiffs should retain in their hands $7000 of the $18,000 agreed to be loaned by them, until the defendant should produce satisfactory legal evidence that the Scott and Lowrie claims had been paid.</p> <p>He then offered in evidence the deed of trust to Schoyer as aforesaid, dated February 1st 1850, together with a written memorandum of the terms upon which the papers were to be delivered to the parties respectively.</p> <p>The counsel for the plaintiffs then submitted the following propositions for the consideration of the court, and prayed them to charge the jury accordingly:—</p> <p>1. That under the Act of May 28th 1858, regulating the rate of interest, the defendant cannot retain or deduct from the amount of plaintiffs’ claim, unless he prove that an excess over the legal rate of interest was reserved or contracted for by the parties by some agreement between them, from the terms of which agreement such excess can be definitely determined.</p> <p>2. That a party has a right to sell land along with a loan of money, and to put such land at its highest market value, no concealments or misrepresentations being proved; and such transaction cannot be impeached by the testimony of witnesses as to what they considered the land worth, especially in case of coal lands unopened, whose value cannot be accurately known until opened and worked.</p> <p>3. That when a sale of land accompanies a loan of money, a jury cannot infer that an excess of interest was reserved or contracted for, from the fact that they find the land to have been taken at more than they believe it to have been worth.</p> <p>4. That where a sale of land accompanies a loan of money, the Act of 1858 has no application, unless it was agreed or understood betw'een the parties at the time that the land should go in at an over value to cover an excess of interest; and in this case there are no facts in evidence from which'a jury would be authorized to infer such an agreement.</p> <p>5. That the value of this coal cannot be depreciated by testimony as to its dip, and the difficulty of mining it, unless accompanied by proof that such dip and difficulty were known to plaintiffs at the time of the loan, or readily discoverable by superficial unscientific examination.</p> <p>6. That in order to sustain his defence, the defendant must prove that the parties at the time believed the land to be wmrth less than the price put on it, and that it was made a condition of the loan that the land should be taken at more than it was worth.</p> <p>7. That in order to sustain his defence, the defendant must prove that plaintiffs knowingly and intentionally forced the lands on Wallace, at more than they believed them worth.</p> <p>8. That under the pleadings, the defence set forth in the notice of special matter is in the nature of an equitable defence, and is in substance a bill for an injunction pro tanto. As such, it is insufficient in itself, even if the facts set forth were true, among other things in this, that it does not set forth -what rate, or that any rate was reserved or contracted for over the legal rate.</p> <p>9. That under the pleadings the defendant cannot defend under the Act of 1858, without proving that he had tendered to plaintiffs the money borrowed, and a reconveyance of the land free of encumbrance, or without bringing such money and reconveyance into court on the trial.</p> <p>10. That the defendant, taking his whole testimony to be true, has failed to make out a defence under the Act of 1858, and the plaintiffs are entitled to a peremptory charge on that part of the defence.</p> <p>The court below (Williams, J.) charged the jury:</p> <p>“ That the retention of the $7000 until the removal or'satisfaction of the supposed encumbrance, under the deed of trust above mentioned, would not prevent the plaintiffs from maintaining this action ; that they were not bound to apply it to the payment of the notes first falling due; that the rights of the parties were precisely as if this sum had been deposited for the same purpose in the hands of a stranger, but that the defendant was entitled to credit for the amount, and also for the purchase-money of the mortgaged premises which had been rented to them.”</p> <p>The court then, in the general charge, substantially negatived the plaintiffs’ 2d, 3d, 5th, 6th, and 7th points, and reserved the questions raised by the 1st, 4th, 8th, 9th, and 10th points for the consideration of the court in banc, in case their consideration should, by the verdict of the jury, become necessary.</p> <p>The jury, under these instructions, found the following verdict :—</p> <p>' “ In this case the jury say that they find for the plaintiffs, and assess the amount of the principal and interest of the mortgage-debt unpaid, on the hypothesis that the mortgage was not given to secure the payment of a loan of money at a rate of interest exceeding that established by law, at the sum of $42,682.47.</p> <p>“ But the jury further find that, in point of fact, the mortgage sued on was given to secure the payment of a loan of money at a rate exceeding that established by law, and that deducting such excess from the said mortgage-debt,- the amount of the principal and interest of said mortgage-debt actually unpaid is $25,799.24. And the jury further find that the plaintiffs, under the terms and stipulations of the said mortgage, are entitled to the further sum of 5 per centum attorneys’ commissions on so much of the principal and interest of the mortgage-debt as may now be due and unpaid, and 5 per centum on the remaining instalments, as the same shall become due and payable, if not paid at maturity.</p> <p>“The court to enter judgment for either of the said amounts found by the jury, viz.: Eor the sum of $42,682.47, first above found as aforesaid, or for the sum of $25,799.24, last above found as aforesaid, as the court may determine the law to be on the reserved questions, together with 5 per centum attorneys’ commissions thereon, as found by the jury as aforesaid.”</p> <p>Subsequently, on consideration of the reserved points, the court in banc ordered the entry of judgment for plaintiffs for $25,799.21, with interest from the date of the verdict, together with 5 per cent, attorneys’ commissions.</p> <p>The case was thereupon removed into this court by the plaintiffs, for whom the following errors were assigned :—</p> <p>1. Admitting the evidence offered to prove the facts set forth in the defendant’s notice of special matter; the same constituting the subject-matter of the first bill of exceptions taken by the plaintiffs as aforesaid.</p> <p>2. Admitting the list of liens offered by the defendant to show the pecuniary condition of his testator in 1857 and 1858 ; the same constituting the subject-matter of the plaintiffs’ second bill of exceptions.</p> <p>3. Admitting the offer of the defendant to prove by the witness Patterson the location and value of the coal land sold and conveyed to him by the plaintiffs; the same constituting the subject-matter of the plaintiffs’ third bill of exceptions.</p> <p>4. Admitting the deed of Dutton Shannon and wife to the plaintiffs, dated in 1853, to show the value of the coal conveyed thereby at the date of the said deed; the same constituting the subject-matter of the plaintiffs’ fourth bill of exceptions.</p> <p>5. Admitting the evidence offered to show the value of Wallace’s property, and that the mortgage sued upon embraced the whole of it, with the exception of two pieces only which had been previously mortgaged; the same constituting the subject-matter of the plaintiffs’ fifth bill of exceptions.</p> <p>6. Overruling the offer by the plaintiffs to prove by the witness Hill the price at Avhich the land of Christian Weigert had been sold; the same constituting the subject-matter of the plaintiffs’ sixth bill of exceptions.</p> <p>7. Refusing to affirm the propositions submitted by the counsel for the plaintiffs.</p> <p>8. Submitting to the jury the question whether the contract was usurious, without any sufficient evidence to authorize a finding by them to that effect.</p> <p>9. Entering judgment for the plaintiffs upon the special verdict for the smaller of the two sums found by the jury, and therein and thereby entering judgment upon the reserved questions in favour of the defendant.</p>

<p>Error to tbe District Court of Allegheny county.</p> <p>These were attachment executions sued out by the firm of G. M. Coates & Co. on judgments held by the firm against Frederick Michaels, in which Andrew Gerlach was summoned as garnishee. It was conceded that at the date of the service of those writs there was in the hands of the garnishee the sum of $2400, but this money Was claimed by Mina Michaels, wife of Frederick, and the defence was made by the garnishee in her behalf. The cases were tried in the District Court together. The facts of the case are fully stated in the opinion of this court.</p> <p>Under the instructions of the court below (Hampton, P. J.), there was a special verdict in favour of the plaintiffs, finding the sum of $2400 in the hands of the garnishee, subject to the opinion of the court upon the questions raised by the points propounded by the plaintiffs, which were ruled against the plaintiffs, and judgment entered only for $500. The substance of these points will also be found in the opinion of this court.</p> <p>Writs of error were sued out by both parties, and both cases were argued and considered in this court together.</p>

<p>'Error to the Common Pleas of Allegheny county.</p> <p>This was a scire facias sur mechanic's lien, filed by Thomas M. Bell against Caleb Russell, for stonemason work on three three-storied brick houses of defendant in Pittsburgh. The material facts of the case were as follows:—</p> <p>In 1859, Caleb Russell being the owner of three lots in the city of Pittsburgh, entered into a written contract with William Stroud, who agreed to build three three-storied brick houses on these lots for the sum of $5850, and commenced work under this contract some time in the summer of 1859. Russell paid to him, and on his orders, during the progress of the work, and on mechanics’ liens filed against the buildings, by sub-contractors and material-men, for work, &c., included in Stroud’s contract, the sum of $6249.01, being $399.01 more than the contract price. He never employed or contracted with Bell to do any work, or furnish any material for the houses, except for some work, amounting altogether to $81.87, which has been paid.</p> <p>On 25th February 1861, Thomas M. Bell filed a mechanic’s claim against these houses in the Court of Common Pleas of Allegheny county, at No. 16 of March Term 1861, in the following form :—</p> <p>“ Thomas M. Bell, stonemason, of Allegheny county, files this his claim, for the payment of the sum of $179.50, against all those three three-storied brick houses or buildings situated on the north side of Fourth street, at the corner of Jail alley, between Market and Ferry streets, in the city of Pittsburgh. Two of said houses, to wit, Nos. 31 and 35, being twenty-one feet in front on Fourth street, and the remaining or third house, being No. 33, is nineteen feet nine inches front; and all being about sixty feet and four inches in depth, and the lots or pieces of ground and curtilages appurtenant to said buildings; the said sum of $179.50 being the balance of a debt contracted for work, to wit: rubble mason work, and cut-stone work, and materials, to wit: stone furnished and provided by the said Thomas M. Bell, within six months last past, for and about the erection and construction of the said buildings, of which the said Caleb Russell was and is the owner, or reputed owner; and the said William Stroud, the builder and contractor for said work and materials, at whose instance and request said work was done aforesaid, and the said materials were furnished, and the amount claimed to be due on each of the said buildings, for materials furnished and provided, and work done as aforesaid, is $59.83-£, which the said claimant hereby designates, according to the Act of Assembly in such case made and provided, and for which he claims to have a lien on the said buildings and appurtenances, from the commencement of the same; and said claimant hereto annexes a bill of particulars of the said debt or balance due, showing the kind of work done, and materials furnished, and the time when said work was doné, and materials furnished.</p> <p>“ Thomas M. Bell.”</p> <p>William Stroud, for houses of Caleb Russell, on Fourth street. To Thomas M. Bell, ....... Dr. 1860.</p> <p>February 25th. For balance due on houses of Caleb Russell, on Fourth street, Pittsburgh, being stone and stonework, ........ $179.50</p> <p>Pittsburgh, February 25th, 1860.</p> <p>Thomas M. Bell.</p> <p>And on July 80th 1861, issued the writs of scire facias in this and other cases, at the same time filing an affidavit of claim against Russell, without alleging that Stroud was indebted to him, although setting forth that the work, &c., claimed for was done at Stroud’s instance.</p> <p>On 17th August 1861, Russell obtained a rule on the claimant to show cause why the claim and lien should not be stricken from the record as defective, in.only stating'the balance claimed as due, without showing the amount of the debt, and the credits allowed, and in not showing the amount and value of the materials, nor of the work, nor the items, nor when the work was commenced, nor when it was finished, nor that the work was done within six months prior to the filing of the claim, and also defective in the bill of particulars being dated February 25th 1860, a year before it was filed.</p> <p>March 1st 1862, Bell obtained a rule 'to show cause why he should not be allowed to amend his claim filed at No. 16 of March Term 1861, by filing an amended bill of particulars, setting forth that the claim was filed for stone furnished, and stonework done, as per contract with William Stroud, between about August 1st 1859, and February 24th 1861, and the whole amount charged, viz., $579.50, and the credits allowed, viz., $400.</p> <p>This rule, and the rule to strike off the claim, were argued together March 10th 1862, and on 15th March 1862, the court made an order dismissing the rule to strike off the lien, and allowing the amendment asked for.</p> <p>March 24th 1862, Russell filed an affidavit of defence, setting forth the facts above stated, and the defects in the claim, and on the same day demurred to the original claim, to the right to amend, and to the claim as amended, as insufficient for the reasons given for the motion-to strike off the claim; and also for others.</p> <p>In this demurrer the claimant joined, and it was argued, and overruled by the court April 28th 1862 ; and on May 3d 1862 judgment was entered by the court on the demurrer for the plaintiff Bell, and against the defendants, the amount to be liquidated by Bell’s attorneys.</p> <p>The case was thereupon removed into this court by the defendants, for whom the following errors were assigned:—</p> <p>1. The court erred in dismissing the rule taken on August 17th 1861, by the plaintiff in error, on the claimant, to show cause why the claim filed February 25th 1861, should not be stricken from the record as defective.</p> <p>2. The court erred in refusing to strike from the record, as defective, the mechanic’s claim or lien, filed February 25th 1861.</p> <p>3. The court erred in making absolute the rule taken by the claimant, on March 1st 1862, to show cause why the amendment asked for should not be allowed, and in allowing the amendment to be filed.</p> <p>4. The court erred in allowing the claimant to amend his claim a year after it was filed, by adding thereto a new bill of particulars.</p> <p>5. The court erred in entering judgment on the demurrer in favour of the plaintiff below.</p> <p>6. The court erred in not entering judgment on the demurrer for the defendant below'.</p> <p>7. The judgment of the court on the demurrer is erroneous.</p> <p>•8. The court erred in directing that the amount of the judgment on the demurrer should be liquidated by the attorneys of the plaintiff below.</p>

<p> What constitutes Murder in the First Degree. </p> <p>1. The true criterion of the first degree in murder is the intent to take life. The deliberation and premeditation required by the statute are not upon the intent, but upon the killing. It is deliberation and premeditation enough to form the intent, and not upon the intent after it has been formed. An intent distinctly formed even “ for a moment” before it is carried into act is enough.</p> <p>2. Therefore, a distinctly formed intent to kill, carried into act but a moment after, not in self defence, and without adequate provocation, will constitute murder in the first degree.</p> <p>3. In a case of murder, the prisoner’s intoxication is not such an excuse as will allow a less than ordinarily adequate provocation to palliate the offence, unless it was so great as to render him unable to form a wilful, deliberate, and premeditated design to kill, or incapable of judging of his acts and their legitimate consequences.</p>

<p>Form of Judgment to be entered in cases of Removal of Paupers.— Proper Settlement of Pauper. — Supreme Court has no Jurisdiction on the Merits in Pauper Cases.</p> <p>1. The judgment of the Quarter Sessions in appeals from an order for the removal of a pauper should always be in aeeordance with the rule laid down in West Buffalo v. Walker Township, 8 Barr 180.</p> <p>2. The settlement of a pauper is the place of his birth until he acquires another derivatively from his parents or by acts of his own.</p> <p>3. The last place of a pauper’s legal settlement, whether in or out of Pennsylvania, is liable to his support.</p> <p>4. Where a son living with his father in one township, and thereby gaining a settlement therein, afterwards separates from his father an'd provides for himself, and subsequently the father removes to another township, the son, a minor, by living with his father in the last township a less time than is required for legal settlement, does not acquire by relation to his father a settlement in the last township.</p>

<p>Negotiability of Railroad Company Bonds. — Action founded on Coupons of Railroad Bonds sustained.</p> <p>The coupons of railroad bonds are negotiable instruments, and may be sued on by the holder separate from the bonds; and interest from the date of demand and refusal of payment may be recovered.</p>

<p> Validity of Mechanic’s Lien irregularly entered as between Parties. </p> <p>A mechanic’s lien regularly filed in proper form and time, and properly entered in the Mechanics’ Lien Docket, is valid as between the parties to it, though the prothonotary omitted to alphabetically index their names in that docket.</p>

<p>Error to the Common Pleas of Allegheny county.</p> <p>This was an execution-attachment, at the suit of Kinney Goff, against Solomon Shetter, in which Richard Nuttall and John Kirkpatrick, partners doing business as Nuttall & Kirkpatrick, were summoned as garnishees.</p> <p>The case was this: — On the 8th day of July 1861, Kinney Goff had obtained a judgment against Solomon Shetter, for $220.97, and on the 23d day of September 1861, this attachment was issued to attach a debt alleged to be due from Nuttall & Kirkpatrick to Shetter, for rent of certain premises in Allegheny City, occupied by them.</p> <p>Shetter made no defence to this attachment, but the garnisnees defended on the ground that the rent due from them belonged to the wife of Solomon Shetter, they having rented the premises from her, and not from the husband; and the only question was, whether the rent due belonged to the wife, as her separate property, or to her husband.</p> <p>Shetter and wife were married in 1850; and in 1854, a lot of ground (embracing the premises contained in the lease) was conveyed by S. Seymour to James Sweeny and Mary Shetter, the wife of Solomon Shetter. At the same time, a mortgage was given by them to Seymour, in which Solomon Shetter joined, for the whole purchase-money, $8150, payable in ten annual payments, without interest.</p> <p>There was a shop upon a part of the lot, which Shetter improved and occupied for some time as his place of business. On the 6th of July 1860, Mary Shetter leased the shop to Nuttall & Kirkpatrick, for three years from the 1st of April 1861, at $160 per year, and appointed John Dyer to collect the rent, and apply it to the taxes and the mortgage of Seymour. This was the rent attached.</p> <p>On the trial, the plaintiff gave in evidence, 1. The judgment against Solomon Shetter for $220.97 ; the writ of attachment and service thereof; lease in writing from Mary Shetter, wife of Solomon Shetter, to Nuttall & Kirkpatrick, dated July 6th 1860, for certain premises in Allegheny City, for the term of three years from the 1st day of April 1861, at the yearly rent of $160, payable quarterly; and the answer of defendants, admitting rent in arrear, claimed by Mrs. Shetter.</p> <p>He also proved that Shetter resided in Allegheny City fourteen or fifteen years; that the buildings occupied by the garnishees were built six or eight years ago, and were at first occupied for some years by Solomon Shetter as a blacksmith-shop ; that Mr. and Mrs. Shetter were married before they were put up; that the buildings were in part built by J. & A. Patterson, who did the work for Shetter, and that this work was mostly paid in blacksmithing, done at his shop; and rested.</p> <p>The defendants, on their part, offered, 1. Deed from Sylvester Seymour and wife to James Sweeny and Mary Shetter, dated August 2d 1854, recorded July 15th 1857, for a lot of ground, embracing the premises leased to defendants, consideration, $3150, which is receipted for on the deed. 2. Mortgage from James Sweeny and Mary Shetter and Solomon Shetter to S. Seymour, dated August 2d 1854, for $3150, on the same premises described in the deed; and closed their case.</p> <p>The plaintiff’s counsel thereupon asked the court to charge the jury, that “ if they believe that the premises mentioned were conveyed by S. Seymour and wife to Mary Shetter, the wife of Solomon Shetter, by deed dated August 2d 1854, for the consideration of $3150, which is receipted for in full on the deed, and that the defendants, garnishees, rented the premises from Mrs. Shetter, the rent due on the lease belongs to Solomon Shetter, the husband, and is liable to be taken in execution by his creditors.”</p> <p>The court below (Mellon, J.) charged the jury as follows:—</p> <p>“I refuse to instruct the jury as requested in the plaintiff’s proposition. There is nothing to show or indicate payment by Shetter for the property, except the general formal receipt at the bottom of the deed of Seymour to his wife. It would seem rather that a mortgage was given for the purchase-money, on which nothing has been paid, except what has been paid out of the rents of the premises. But, supposing Shetter, the defendant, had paid for this property at the date of Seymour’s deed, and directed the deed to be made to his wife, what right has this plaintiff to complain? We have no evidence that Shetter owed a dollar to anybody at that time, or for six or seven years after-wards. There is no evidence that he did so to defraud this or any other creditor, either immediately or prospectively. A man not indebted may donate his property to anybody, his wife not excepted. Subsequent creditors, not contemplated at the time of such gift, can have no reason to complain. If a false credit was given by defendants’ occupancy of the shop, it was the plaintiff’s own neglect in not examining the records. This deed was recorded long enough before his debt was contracted, so far as the evidence in the case goes. I take it, the authorities so strenuously insisted on by plaintiff’s counsel do not apply to a case of this description. The Supreme Court have not ruled, that in-no instance, or under no circumstances, can a wife’s earnings enure to her own emolument. Even the wife’s earnings, I take it, might be dedicated by the husband to her own use, if he were out of debt at the time.”</p> <p>There was a verdict and judgment in favour of the defendants; whereupon the plaintiff sued out this writ, and assigned for error the instruction given to the jury as above.</p>

<p>Liability of Garnishee for Interest,. — Interest on attached Note when suspended, how ascertained. — Amendment by striking off Name of Co-defendant.</p> <p>1. As in foreign, so in execution attachment, interest on a debt due by the garnishee to his creditor as whose property it was attached, is suspended during the pendency of the proceedings, if there be no fraud, collusion, or wilful delay on the part of the defendant or garnishee.</p> <p>2. Where the money attached was due on a note not in the name of the payee, the attachment would nevertheless bind it, so far as regards the garnishee, and suspend interest while pending.</p> <p>3. If the fund attached exceed the amount of the attaching judgment, interest is not chargeable from the maturity of the note to the time of the settlement of the attachment, on so much as was necessary to pay it, but only on the unappropriated balance.</p> <p>4. Whore suit is brought on a note under seal against the executors of the principal debtor, deceased, and his two sureties, the record may be amended on the trial, by striking off the names of the sureties.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action of assumpsit, by John Woods against Eli Neeld, to recover the amount of a promissory note for $345, dated March 13th 1858, made by William Blackstock, payable at sixty days, to the order of Hamilton Lacock, and endorsed by Hamilton Lacock and Eli Neeld.</p> <p>The note was duly protested at maturity, and the only question in the cause was whether due notice of its non-payment was given to the defendant.</p> <p>On the trial, it was admitted by the counsel on both sides that there was no fact to be submitted to the jury, and by consent, the question whether due notice was given of the dishonour of the note, taking all the evidence to be true, as per the judge’s notes, was reserved for the determination of the court in banc.</p> <p>It was also agreed that the jury should render their verdict for the plaintiff, subject to the opinion of the court, on the question above mentioned. Judgment to be entered either on the verdict, or non obstante veredicto, as the court might decide the question. ■</p> <p>The facts in regard to the notice, as disclosed by the evidence, were these:—</p> <p>The notary public sent the notice to the defendant by mail to the post-office in Temperanceville immediately after the protest. Some two or three weeks afterward the defendant being informed that a letter was in that office for him, called there and received it. This is the only letter he ever received at that office. He resided in Lower St. Clair township, between two and three miles from Temperanceville, but was engaged in the coal business, and had a platform in that village a short distance from the post-office. There was, at the time in question, a post-office called Mount Lebanon, about a mile and a quarter from his residence, but defendant never either received or mailed any letters at that office. Eor many years üe had mailed and received all his letters, except the one before referred to, at the office in Pittsburgh. His usual route, to the city from his residence was along the Washington turnpike, which lies alongside of the village of Temperaneeville, and he frequently went along the Plank Road, through the village and past the post-office. His neighbours received their letters at the Temperaneeville post-office. The plaintiff, Mr. Woods, was a well-known banker residing in Pittsburgh city, and was the holder of this note at the time of its maturity. The maker and the other endorsers lived in Allegheny City.</p> <p>The court below (Hampton, J.) delivered an opinion on the reserved point, and directed judgment to be entered for defendant, non obstante veredicto, which was the error assigned.</p>

This was a feigned issue under the Sheriff’s Interpleader Act, to try the title to certain coal-boats which had been levied on as the property of Miller & McGuire, at the suit of J. & T. Patterson, but which were claimed by Alexander Wallace. The issue was formed between Alexander Wallace, as plaintiff, and J. & T. Patterson, as defendants. Among the witnesses called by the plaintiff was John Howell, who was sworn and examined without objection.

<p>Error to the District Court of Allegheny county.</p> <p>This was an action of debt, by George W. Bowman, for the use of Springer & Wannall and John D. Daggatt against The Pennsylvania Insurance Company of Pittsburgh.</p> <p>The plaintiff declared on a policy of insurance on the steamboat A. B. Chambers, dated July 6th 1860, averring the loss of the boat within the meaning of the policy, and claiming to recover $5000, with interest, less the amount of an unpaid premium note for $750.</p> <p>The policy contained the following clause:—</p> <p>“ And it is hereby agreed, that this policy shall become void, if any further insurance has been, or hereafter shall be made on said boat or,vessel, which, together with this insurance, shall exceed the sum of $20,000, or upon any assignment thereof, unless notice is given at the office of the company, and the same be approved and endorsed thereon by the secretary or other authorized officer of the company.”</p> <p>On the 1st of September 1860, it was assigned to the plaintiff, for whose use the action was brought, by the following writing:—</p> <p>“ St. Louis, September 1st, 1860.</p> <p>“For value received, I hereby assign, transfer, and convey the within policy of insurance to Nicholas Springer and Thomas N. Wannall, comprising the firm of Springer & Wannall, and John D. Daggatt, hereby conveying all the rights and privileges arising under said policy, and any and all proceeds to arise therefrom.</p> <p>(“Signed) “ G. W. Bowman.”</p> <p>On the 11th September 1860, the following paper was executed and attached to the policy by a wafer:—</p> <p>“ Pittsburgh, September 11th 1860.</p> <p>“ The Pennsylvania Insurance Company of Pittsburgh consents to assignment of policy 2261, per S. B. ‘ A. B. Chambers,’ to John Daggatt and Springer & Wannall, as collateral security to a deed of trust executed in their favour on said boat.</p> <p>(“ Signed) “ A. A. Carrier, Pres’t.”</p> <p>On the 17th of November 1860, the following letter was received by plaintiffs:—</p> <p>“ Pittsburgh General Insurance Agency, No. 63 Fourth Street, Pittsburgh, November 17th 1860.</p> <p>“ Messrs. Springer & Wannall, St. Louis, Mo. Gents. — Capt. Dean showed me your letter to him, with statement of property sold from wreck of S. B. ‘A. B. Chambers.’</p> <p>“ Gross sales, .... $1335.02</p> <p>“ Charges, .... 403.40-$921.62</p> <p>“We transmit this to the companies. Mr. Chew’s statement, however, mentions the saving of cargo and freight, and all included in this item of charges. If cargo was saved, it is proper to exclude an equitable proportion of the expense from the charge against the underwriters on vessel, and place to account of cargo.</p> <p>“ You make no mention of the hull and machinery. ¿I °f the boat was covered by the companies represented at this agency, and a portion of it afterward reinsured in other companies, and all express a wish for such an adjustment as will close the whole matter, without the trouble of looking after and dividing and subdividing salvage hereafter. We have to ask you, therefore, to make a proposition to us for the If of the wreck as it now lies in the Missouri river. We suppose the boilers and machinery will be valuable, when recovered. The amount allowed, of course, to be applied in liquidation of the policies, if your proposition is accepted. Let us hear from you in regard to this matter, and oblige “ Truly yours,</p> <p>“A. A. Carrier & Bro.”</p> <p>The main defence was, that “the assignment was never approved or endorsed on the policy by the secretary or. other authorized officer of the company.” This was submitted to the court below by the defendant, with other points not material here, which were affirmed. In answer to this point, the court (Williams, J.) charged that “ if the jury were satisfied that notice of the assignment ivas given to the company, accompanied with a request that the company would consent thereto, and that it was the intention of the company, by its president, to sanction the assignment when the paper of the 11th of September 1860 was executed, it Ayas as valid and effectual as if endorsed on the policy.”</p> <p>Under these instructions there was a verdict and judgment for the plaintiff. Whereupon the defendant sued out this Ayrit, and assigned for error the charge of the court, as above stated.</p>

<p>Assignment, when valid without recording filing Inventory.— What Creditors may invalidate Assignment by Railroad Company under Act of January 21st 1843.</p> <p>1. An assignment by a railroad company of unpaid instalments due on subscriptions to capital stock, to an endorser, to secure him against loss by reason of his endorsement for the company, is not an assignment in trust for creditors, and therefore is not invalid, because not recorded nor an inventory filed -within thirty days thereafter.</p> <p>2. Sub-contractors who had no claim against the company until nearly a year after the assignment was made, cannot allege that it is invalid, under the -Act of Assembly of 21st January 1848, providing that no public internal improvement company shall make an assignment, &c., of its real or personal estate, while debts or liabilities to contractors, laborers, and workmen remain unpaid, without first obtaining their written consent.</p>

<p>Liens, prior to Fraudulent Conveyance, not divested, by Sheriff’s Sale under a subsequent Lien.— What Estate passes by such Sale. — Proceeds of Sale distributed among all subsequent Creditors.</p> <p>1. Where the owner of land encumbered with liens makes a conveyance fraudulent against creditors, and the land is sold by the sheriff under a judgment subsequently obtained, the liens existing before the conveyance remain, and are therefore not payable out of the proceeds of the sale.</p> <p>2. The estate of the debtor is what is sold under the execution ; and those liens only which attached after the fraudulent grant, are payable, in their order, out of the proceeds.</p>

<p>Error to the Common Pleas of Westmoreland county.</p> <p>This was an action of debt brought by Joseph Moorhead, surviving executor of Samuel Moorhead, deceased, against Alexander Craig.</p> <p>The material facts of the case were as follows: — The defendant was married to Rebecca, one of the daughters of Samuel Moor-head, who, on the 15th of August 1845, executed a will, in and by which he gave to his daughter, Rebecca Craíg, a certain tract of land therein mentioned, with an equal share of the residue of his estate. Some time after the execution of this will, Mrs, Craig died, leaving three children. After her death, to wit, July 5th 1851, Mr. Craig received from Samuel Moorhead the sum of $2000, for which he gave the following receipt:—</p> <p>“ Received of my father-in-law, Samuel Moorhead, $2000, in part of my former wife’s share of his personal estate as willed to her, which sum I hereby bind myself to account for to his executors and to his other legatees in the final settlement of his estate, without interest. Witness my hand and seal this 5th day of July 1851.</p> <p>(Signed) “ Alex. Craig.” [l. s.]</p> <p>After the death of Samuel Moorhead (which occurred in 1853), •his executor brought this suit, and declared on the above instrument of writing.</p> <p>The defendant filed an affidavit of defence, in which he stated that this receipt embraced all the moneys that had been given to his wife and himself, a part of which had been given to her in her lifetime. On the 26th December 1860, soon after sui(; was brought, the defendant filed special pleas in abatement, alleging therein that the money mentioned in the receipt was an advancement, and that the Orphans’ Court alone had jurisdiction. Before proceeding to trial the plea of non est factum was added.</p> <p>The plaintiff alleged that the paper in question was a bond, and averred, as necessary to a recovery thereon, that there had been a final settlement of the estate of Samuel Moorhead, and an account with the executor demanded. On the trial it was admitted that there had been no settlement of the estate of Moorhead by the executor, and there was no evidence of any request to account.</p> <p>The court below (Buffington, J.) instructed the jury as follows:—</p> <p>“ The action is on the paper in suit; and the question is whether this suit can be sustained on it. Defendant certainly agrees to account for this money to the estate of old Mr. Moor-head. He binds himself to do so.</p> <p>“But it is said the Orphans’ Court had jurisdiction. We do not think so. We look upon him as a debtor to account for this money. It is further said it cannot be recovered till a final settlement. If there is anything in this it ought to have been pleaded in abatement. Some parol evidence as to the true meaning and construction of this note has been given. If that had been objected to, the court would have overruled it. Parol evidence cannot be admitted to vary a written agreement, particularly loose declarations made in the course of conversations on other matters. We therefore think that this parol evidence, so far as has a tendency to alter the terms of the agreement, is to be disregarded.”</p> <p>Under these instructions there was a verdict and judgment for plaintiff for $2000; whereupon the defendant sued out this writ, and assigned for error the instruction given by the court to the jury as above stated.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was on the case brought by Edward Steiren against Alexander King and Thomas Graham, doing business as King & Graham, to recover the sum of $900, with interest, from April 1st 1855.</p> <p>The plaintiff averred that in June 1854 the defendants, being engaged in manufacturing soda ash, entered into a contract with him to take charge of the chemical department of their works from the 1st day of July next ensuing, or sooner, if requested, until the 1st day of April 1855, a period of nine months, for which they agreed to pay him $900. That they wrote to him to come to Pittsburgh a few days prior to the 1st of July, and take charge of their works. That he came according to their request, tendered his services, offered to perform his part of the contract, hut they refused to receive him, or permit him to enter upon his duties, and that he was ready and willing at all times during the period covered by the contract to perform his part, but was prevented by the defendants from so doing.</p> <p>Two grounds of defence were set up to the plaintiff’s right to recover, and a third as to the measure of damages.</p> <p>1st. Defendants denied that any such contract was ever entered into by them. 2d. They averred that the plaintiff was incompetent to take charge of the chemical department of their works, and that he had imposed upon them by misrepresentations as to his capacity; and 3d. That even if the jury- should find against them on both these issues, the measure of damages would be merely for his loss of time and expenses in coming to Pittsburgh. They contended also, that as soon as they refused to take him into their service, he was bound to seek employment elsewhere, and that the burden of proof was on him to show that he could not find any other employment.</p> <p>The court below (Hampton, J.) submitted the first two points to the jury under the facts given in evidence, instructing them that if there was no contract between the parties, if it was tainted with fraud, or if the plaintiff was not competent to discharge the duties for which he was employed, their verdict should be for defendants, otherwise for the plaintiff. On 'the question of damages, the learned judge said, “ The plaintiff has given no evidence of special damage, beyond the loss of time and expense, in coming to Pittsburgh. He rests this branch of his case on the proof of the contract, his tender of performance, and the defendants’ refusal to receive him. On the other hand, the defendants have given no evidence tending to show that the plaintiff might have procured employment elsewhere. This state of facts presents the naked question, on whom does the burden of proof rest to show the amount of damage the plaintiff should recover — the plaintiff or defendants ? It was undoubtedly competent for the defendants to show, in mitigation of damages, that the plaintiff was offered similar employment in the same locality, and refused to take it, or that he was actually employed in the same or other business a portion or the whole of the period covered by the contract. This would have reduced his damages, and if sufficiently strong and comprehensive, might have prevented a recovery for more than mere nominal damages. But were they bound to do so in order to prevent a recovery for the entire amount specified in the agreement ? Or was it incumbent on the plaintiff to take the initiative in the proof, and show that he could not secure employment ? This is purely a question of law, for the determination of the court. It is undoubtedly true, that when a contract for services to be rendered is entered into, for a specified time, but no sum is fixed as the amount of wages to be paid, the plaintiff must not only prove the contract, and his readiness to perform his part, but he must also show wliat his services would have been worth. But when the parties themselves have fixed the wages to be paid, the question arises whether the party undertaking to render the service need prove more than the terms of the agreement and his offer to perform his part, and there rest.</p> <p>“ The general rule is, that he who asserts a fact in pleading must prove it. A party cannot in general be called upon in the first instance to prove a negative. After the party having the affirmative of the issue has given his evidence, the other party may disprove the alleged fact by giving negative testimony.</p> <p>“ It is a principle of law that he who prevents a thing from being done, shall not avail himself of the non-performance which he himself has occasioned: Add. on Con. 1121. And it has frequently been held, although the decisions are not entirely harmonious on the subject, that atender of performance is equivalent to actual performance. This rule is undoubtedly true so far as to give the party tendering performance a right of action against the party preventing him from performing his part of the contract. But a tender of performance cannot be regarded as equivalent to performance for all purposes, in all cases. For if a man should refuse to deliver a hundred barrels of flour at a certain time for a stipulated price, and should make the tender which was refused by the purchaser, he could not recover the actual price agreed on, but the difference between that and the market price at the time it was to be delivered. The reason is, that he still has his flour, and can dispose of it at the market price, and make himself whole by recovering the difference. The great object of damages is to repair an injury, to make the wrongdoer pay to the injured party such an amount as will make him whole.</p> <p>“ But I apprehend there is a difference between personal property and labour. The former will always find a purchaser in the market, but not so with the latter, and especially is. this true of scientific or professional labour. A man of this class may go unemployed for many months, notwithstanding the most untiring efforts to procure a place. But was the plaintiff bound to make any effort, and if so, upon what principle ? He was in no default, having done all he agreed to do; by tendering his services, he might well rest upon his contract, and await the order of the defendants, who, notwithstanding their refusal at first, might change their minds, and receive him into their service, in the first instance, than he has done on this branch of the case, It was not incumbent on the plaintiff, therefore, to prove more, to entitle him to recover the amount agreed upon.</p> <p>“ If tbe defendants have broken their contract, without good cause, they are wrongdoers, and are liable, primd facie, to pay the amount fixed in their contract. The burden of proof, therefore, rests on them to show that the plaintiff’s damages are less than that sum. This they might have done by proving that the plaintiff had not been idle during a portion or the whole of the time, and whatever they could show he had earned in the mean time would have gone to mitigate the damage, or they might have shown that a similar or other good situation was offered him, which he refused, without good cause. But they have offered no such evidence, nor any evidence whatever in mitigation of damages, but have chosen to stand upon their naked legal position, that they were not bound to offer any evidence on the subject.</p> <p>“We have already said that when a contract is silent as to the price to be paid for services agreed to be performed, the plaintiff must show what his services would have been worth in order to entitle him to recover more than nominal damages. But where the price is fixed by the parties themselves, that amount is, primd facie, to be taken as stipulated damages: Adams Express Co. v. Egbert, 12 Casey 360; Richardson v. Miltigh, 2 Bing. 229. In The Philadelphia, Wilmington, and Baltimore Railroad Co. v. Howard, 13 How. 330, it was held, that in an action for breach of contract to permit the plaintiff to construct a railroad and to pay him therefor, at certain rates, the profits meaning thereby the difference between the cost to him of doing the work and the time to be paid for it, are a proper subject of damages. The case of Hoy v. Gronoble, 10 Casey 9, goes much further than is claimed in the one before us. ‘ There it was held, that in an action to sustain damages for the breach of a parol contract, by which the defendant engaged to employ the plaintiff to cultivate a farm upon shares, the proper measure of damages is, the profit which the plaintiff would have made upon the farm, if the contract had not been violated.’ And in Masterton v. The Mayor of Brooklyn, 7 Hill 62, which was a case in which the plaintiffs had agreed to furnish marble for the City Hall of Brooklyn, for which the defendants agreed to pay as the work progressed; after a portion of the marble had been delivered, the defendants refused to receive any more, and the plaintiffs brought covenant for a breach of the contract. It was held, that they were entitled to recover the profits they would have made from the actual performance of the contract. In The Bank of Montgomery v. Reese, 2 Casey 146, Lewis, C. J., says: ‘ The paramount rule in assessing damages is, that every person, unjustly deprived of his rights, should at least be fully compensated for the injury he sustained.’ In Wilkinson v. Ferree, 12 Harris 190, Mr. Justice Black said: ‘When suit is brought on a contract, and in affirmance of it, the verdict should make the plaintiff whole; that is, put him in as good a condition as if the contract had been performed.’</p> <p>“ The present plaintiff sues on the contract, and in affirmance of it, and if he had not been prevented by the defendants from performing the services agreed on, he would have entitled himself to the sum stipulated to be paid. The rule then announced by Judge Black would entitle the plaintiff to recover that amount.</p> <p>“ The principle applicable to this case is clearly recognised in Stewart v. Walker, 2 Plarris 293. That was an assumpsit on an alleged contract by Stewart to pay Walker $2.35 a day for himself and team for one year, who dismissed him before the expiration of the time, without cause. It was shown that after Walker was discharged, he had done hauling“with his team for other persons during a portion of the time. The court below charged the jury, inter alia, that if Stewart, the defendant, had agreed to give the plaintiff work for a year, and discharged him without good cause before the expiration of the year, from that moment the contract was broken, and the defendant was liable for the damages which the plaintiff would sustain by reason of such revocation.’</p> <p>“ If the plaintiff was out of employ for the whole year, holding himself ready at all times to labour for the defendant, he would be entitled to recover pay for the entire year; but he was not bound to remain idle at the risk of losing all claim upon the defendants. He might seek employment and obtain it (although not bound to do so), and the defendants could not complain, as it would reduce the damages, and thereby enure to his benefit. The jury found for the plaintiff, and on error brought, the Supreme Court affirmed the judgment for the reasons given by the court below.</p> <p>“ But the case most relied on by the counsel for the plaintiff is that of Costigan v. The Mohawk and Hudson Railroad Co., 2 Denio 609. That ease is like the present in every material fact. The only difference being that there the plaintiff had entered upon the services agreed to be performed, and was discharged before the time expired. But there is no difference in the principle, whether the services had been commenced or not. That case was elaborately argued and well considered by the court, and all the authorities bearing on the questions involved •were carefully examined. The case was this: the defendants employed the plaintiff to. superintend the railroad for one year, from May the 1st 1843, at a salary-of $1500 for the year, together with the use of a dwelling-house worth $150 per annum. He commenced the service, and continued in the employment until July 1st of that year, when he was dismissed by them, without cause. Upon this he gave notice that he was ready to proceed and perform his contract, and that he should claim his salary for the entire year, according to the agreement. He was not, however, allowed to go on with the business, and remained wholly unoccupied for the residue of the year, although at all times ready to serve according to his contract. The Supreme Court held that he was entitled to recover the stipulated salary for the entire year. It was also held that he might show in diminution of damages, that after the plaintiff had been dismissed, he had engaged in other business. That employment of the same general nature as that from which he had been dismissed, and to be carried on in the same locality, had been offered to the plaintiff, and refused by him; but not a different kind of employment or business to be conducted in another place. It was also ruled that the opportunity to be so employed will not be presumed, but must be affirmatively shown by the defendant. That the onus probandi rests on the party asserting an affirmative fact, not on him who denies it, and that between the wrongdoer and the party injured the presumptions respecting disputed facts are with the latter.</p> <p>“We are of opinion, therefore, as well upon principle as authority, and so instruct you, that if you find for the plaintiff on the issues of fact submitted to you, the measure of damages will be the sum stipulated in the agreement, with interest, from the expiration of the term of service agreed on till the present time.”</p> <p>Under these instructions there was a verdict and judgment for plaintiff; whereupon the defendants sued out this writ, and assigned for error that the court below refused to instruct the jury, as requested.</p> <p>1. That if an agreement was made and concluded, the mea-sure of damages is what the plaintiff lost of his business during the time he was engaged in making the contract, and until he was notified of their intention not to employ him.</p> <p>2. That if there was a contract made by the parties, and the defendants refused to comply, that plaintiff can only recover such damages as he proves specifically suffered by him; and,</p> <p>3. That if a contract was made and broken by defendants, the plaintiff is bound to show that, during the time the contract was to run, he had endeavoured to procure employment and failed, or else he is not entitled to recover.</p>

<p> Surety not discharyed by Notice to sue Principal in Note not yet due. </p> <p>A notice by a surety on an undue note, that he would not remain responsible, if the holder did not sue the principal debtor as soon as the note came due or got other security, will not discharge the surety.</p>

<p>Promise to pay the Debt of another, when not required to be in Writing, under the* Statute of Frauds.</p> <p>The Statute of Frauds does not require the promise of a defendant to be in writing where it is in effect to pay his own debt, though that of a third person be incidentally guaranteed: it applies to the mere promise to become re-sponsible, but not to actual obligations. Hence, where contractors to build a railroad, on settlement with a sub-contractor for work done for them, gave in part payment one of the notes of the company, verbally agreeing to pay it if the company did not, the promise was not within the Statute of Frauds: and on failure of the company to pay their note, an action would lie against the promissors.</p>

<p>Submission to Arbitrators, binding effect of. — Exception dehors the Record, not reviewed in this Court.</p> <p>1. A submission to arbitrators, signed by R. P., the plaintiff, and J. S., the defendant in one action, is valid so far as relates to that suit, though it included another case, in which J. S. was plaintiff, and R. P. and J. P. defendants, only one of whom had signed.</p> <p>2. Exceptions which relate to facts not appearing on the record will not be considered on writ of error.</p>

<p>Municipal Taxation for Local Improvements discussed. — Right of Appeal from decision of Assessor.</p> <p>1. Under Act 22d April 1858, authorizing the Select and Common Councils of Pittsburgh to construct sewers in their streets and alleys, and providing for assessing the costs thereof on properties benefited, by assessors whose report, after hearing, was to'be approved by Councils; the assessment, when made and approved, is final and conclusive: and the question of benefit cannot again be reviewed by any other tribunal.</p> <p>2. Hence, where on the trial of a scire facias on a lien filed against the property of a citizen by the city for his portion of the cost of constructing a sewer adjoining his property, it was error in the court to allow evidence to be given that the sewer was of no benefit to the property, and to charge the jury, that if they should so believe, ..the plaintiff's were not entitled to recover,</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was a scire facias sur municipal claim, in which The Commonwealth for the use of the Mayor, Aldermen, and Citizens of Allegheny were plaintiffs, and Mathias McG-onigle defendant, and in which the following case was stated for the opinion of the court in the nature of a special verdict:—</p> <p>It is admitted by the parties, that Union avenue is a permanent street, situated within the corporate limits of the city of Allegheny ; that on its east side it is bounded by the East Common, and on its west side by private property; that the right of common in the said East Common is in the owners of in-lots, which in-lots are situated between, and are surrounded by, the East, West, North, and South Common of said city, and that the right of soil is in the city of Allegheny, subject to the right of common. It is also admitted, that the Select and Common Councils, having full power thereto under the Act of Assembly of April 5th 1849, P. L. p. 341, and the Act of April 8th 1851, P. L. p. 371; the first of said acts being entitled a Supplement to the Act entitled “ An Act to incorporate the City of Allegheny, and for other purposes,” and the other entitled “An Act to open and extend an alley in the City of Allegheny,” &c., authorized the grading and paving of said Union avenue, from Ohio street north to - alley, in said city, by an ordinance duly passed, published, and recorded; that the contract therefore was properly let, at reasonable prices, and the work was done and completed in proper and workmanlike manner, and has been duly accepted and taken off the hands of the contractor, by the proper authorities of the city of Allegheny; that the assessments for the whole work have been properly made.</p> <p>It is also admitted, that the defendant owns property which fronts, bounds, and abuts on that part of Union avenue graded and paved one hundred and fifty feet; that if his said property is liable to pay for the costs and expenses assessed for the grading and paving of the whole width of Union avenue, for the distance which his property aforesaid fronts thereon, the said costs and expenses will amount to $399.67; that demand for the payment of the same has been properly made of and from the defendant by the street commissioner of said city, and payment refused by the s'aid defendantand that the statement required by the Act of May 30th 1852, P. L. 204, was duly filed, and the writ in this case duly issued thereon and served.</p> <p>If the court should be of the opinion that under the Act of Assembly of April 5th 1849, entitled “ A Supplement to the Act entitled an Act to incorporate the City of Allegheny,” &c., P. L. 341 ; and the 3d section of the Act of 8th April 1851, entitled “ An Act to open and extend an alley in the City of Allegheny,” &c., P. L. 371, and the Act of May 30th 1852, P. L. 204, relative to the mode and manner of collecting the costs and expenses of grading and paving streets in Allegheny, the property of said defendant is liable to pay the cost and expenses of the grading and paving of the whole width of that part of said Union avenue graded and paved, for the distance his said property fronts, bounds, or abuts thereon, then judgment to be entered for the plaintiffs, against the defendant, for the sum of $399.69, with interest from the 16th day of August 1862, and costs. But if the court should be of opinion that the said property is liable for only the costs and expenses of grading and paving that part of said avenue graded and paved for the’one-half the width thereof, for the distance which the said property fronts, bounds, and abuts thereon, then judgment to be entered for plaintiffs, against defendant, for the sum of $196.06, with interest from the 16th day of August, A. d. 1862, with costs.</p> <p>Each party reserving the right to sue out a writ of error from the Supreme Court to the judgment of the court below.</p> <p>After argument, the court directed judgment to be entered in favour of plaintiff, against defendant, for the sum of $399.69, with interest from August 16th 1862, and costs. Whereupon the defendant sued out this writ of error.</p>

Error, to the Common Pleas of Jefferson county. This was a feigned issue, under the Sheriff’s Interpleader Act, to try the ownership of certain personal property levied on at the suit of Joseph Woodwell & Co., as the property of Henry Brown, but which was claimed by Brown & Kirkpatrick. The issue was framed between Brown & Kirkpatrick as plaintiffs, and Woodwell & Co. as defendants. The verdict was for the plaintiffs; whereupon this writ was sued out by the defend- ■ ants.

<p>Appeal from the District Court of Allegheny county.</p> <p>This was an appeal by H. Cbilcls & Co., from the decree of the court below, distributing the proceeds of the sheriff’s sale of certain personal property levied on and sold on an execution against the firm of Porter, itolfe & Swett.</p> <p>The material facts of the case were as follows:—</p> <p>On the 1st of May 1857, Porter, Rolfe & Swett gave a judgment to Dilworth & Bidwell for $85,000, and on the 29th of June 1858, an execution was sued out by plaintiffs, and placed in the hands of the sheriff at half-past eleven o’clock p. M.</p> <p>On the 9th of July 1858, at two o’clock, an execution at the suit of A. Childs k Co., was placed in the sheriff’s hands, and on the 17th of July 1858, at six o’clock p. M., a third execution was sued out by John McGill & Son.</p> <p>The sheriff returned that he had sold the personal property of defendants for $10,711.64; that he had applied $853.67 of this sum to costs and attorney’s commissions in the case of Dilworth & Bidwell, and $5009.32 to the credit of their ji. fa., and that in pursuance of notice from Childs k Co, and John McGill & Son, he had paid into court the sum of $4848.85.</p> <p>Jasper E. Brady, Esq., was appointed to distribute sums, and report facts to the court.</p> <p>This fund was claimed by Dilworth & Bidwell, on the ground that their execution was first in point of time; and was resisted by the other execution-creditors, because, as they averred, the writ of Dilworth & Bidwell was placed in the hands of the sheriff not for the purpose of levying upon and selling the personal property of defendants; that they intended to proceed only against the real estate of defendants ; and had interfered with and prevented the sheriff from levying upon the personal property of defendants until after the levy under the writs of Childs & Co. and McGill & Son. The testimony showed the following facts: The date of the levy did not appear by any endorsement on the writ, but the property was advertised before the 17th of July. It was proved by James McGill, who was called as a witness for Childs & Co., and examined under exception, that Dilworth & Bidwell had stated, between July 8th and 17th, that they had stopped the sheriff from making a levy twice, and it was proved by Mr. Barton, counsel for Childs & Co., who was called by McGill & Son, that he was watching the action of Dilworth & Bidwell on their writ; that he went to the sheriff’s office, and ascertaining that there had been no levy on the first writ, had given the sheriff positive directions to levy under his writ. At this time the writ of McGill & Co. had not been issued.</p> <p>The fi. fa. of Dilworth & Bidwell had been taken to the sheriff’s office by Mr. Shinn, their attorney, who delivered it to one of the clerks in the office. With the writ there was a description of real estate. Mr. Shinn stated at the time that there was personal property at the works of Porter, Rolfe & Swett, and that he wanted the personal property exhausted, and as there would not be enough to cover the debt, he put a levy on the real estate. The hour of receiving the writ was then endorsed upon it.</p> <p>The sheriff’s clerk, whose duty it was to attend to advertising property, finding this writ with a levy on real estate, and a waiver of inquisition, advertised it for sale. One or two days afterwards he learned that there was personal property, and directed one of the deputies to levy upon and sell it, which was done. This information about the existence of personal property was derived from Mr. Barton, counsel for Childs & Co. Dilworth & Bidwell presented the sheriff with a list of the personal property of Porter, Rolfe & Swett, but it did not include the whole of it. After the personal property had been levied upon, Mr. Dilworth repeatedly requested the sheriff not to sell it until after the real estate had been sold, which was refused. The advertising of the personal property was delayed by the sheriff one day, at the request of Mr. Dilworth, who wished to consult his counsel as to the effect the sale might have. No instructions were given to the sheriff about the levy, or to the deputy, by whom it was made, except what he received from the sheriff.</p> <p>The auditor held, under the authority of Hickman v. Caldwell, 4 Rawle 380, and Lantz v. Worthington, 4 Barr 153, that Dilworth & Bidwell were entitled to the money, and so reported.</p> <p>After the first sale the plaintiffs in the junior executions discovered that a large lot of car-wheels, amounting to 110 tons, lying in the mill-yard, had not been sold, and directed the sheriff to advertise and sell the same on their writs; the sheriff then levied upon them, whereupon they were claimed by the Pennsylvania Railroad Company. The sheriff then obtained a rule upon the parties to interplead. This rule was entered and docketed only in the case of H. Childs & Co., and was heard and argued by the attorneys of II. Childs & Co. and John McGill & Son, on the one side, and John II. Hampton for the Pennsylvania Railroad Company. Dilworth & Bidwell did not appear to the rule, or take any part in it. On the hearing of this rule, and upon the inspection of a written contract between the Railroad Company and Porter, Rolfe & Swett, the court decided that the right of property in the car-wheels was in the defendants, and refused to direct an issue, but ordered the sheriff to proceed and sell them; which was done, and the proceeds, $2269.50, paid into court, and on the 11th of April 1859, Thomas McConnel, Esq., was appointed auditor to distribute the same. On the 1st of October 1861, he filed his report, applying the money to the writ of Dilworth & Bidwell.</p> <p>To this report, as well as to that of Mr. Brady, exceptions were filed on behalf of H. Childs & Co. John McGill & Son also made an application to the court to have the Dilworth & Bidwell judgment opened, which was refused, and the case went to the Supreme Court, in which proceeding the present appellants took no part; On the 4th of January 1862, the cause was heard upon the exceptions filed by II. Childs & Co., to the two auditors’ reports, on hearing which they were confirmed by this court. From which said decree the said H. Childs & Co. entered this appeal.</p>

<p> Admissibility, in a civil Action, of Record of conviction in Quarter Sessions, as a ground for the introduction of the Testimony of deceased </p> <p> Witnesses who had then been examined. </p> <p>The record of a prosecution and conviction of the payee of a sealed note for forging it, is not admissible, in a civil action on the note in the courts of another county, for the purpose of laying a foundation for introducing the testimony of the subscribing witnesses who were examined on the trial of the indictment, but had since died, if the testimony of the witnesses is inadmissible.</p>

<p>Error, to the Court of and Terminer of Mercer</p> <p>Dennison Taylor was indicted and tried at the January Term of said court, 1862, for the murder of George Jackson, was convicted of murder in the second degree, and sentenced to imprisonment in the Western Penitentiary, at solitary confinement and hard labour, for a period of eleven years and six months.</p> <p>Under the provisions of the Revised Penal Code, this writ was sued out by the prisoner, for whom the errors which are referred-to and answered in the following opinion were assigned.</p>

<p>Error, to the Oyer and Terminer of Clarion county.</p> <p>Joseph Walters, Philip Walters, and Philip Huling, the plaintiffs in error, were jointly indicted with Joseph Snyder, Joseph Harman, and George Fulmer, for the murder of Martin Keleher, on the evening of the 2d day of September 1862. Harman and Fulmer were tried along with the plaintiffs in error, but wore acquitted by the jury. Snyder elected to have a separate trial, and his case was continued to February Term 1863. The indictment contained three counts. The first two were for murder, and the third for voluntary manslaughter.</p> <p>Martin Keleher, the deceased, was married to a widow lady of Knox township, Clarion county, on the 2d day of September 1862. The plaintiffs in error, with other young men in the vicinity, went in the evening to the house of the bride, where the wedding party was assembled, to serenade the bride and groom. In the serenading party there was an old sword, broken off at the point, carried by Philip Walters, who acted as captain, a gun in possession of Joseph Harman, and a pistol in the hands of some one in the crowd. There was also a fife, a horse-fiddle, and sleigh-bells in the possession of the serenaders, all intended for the purpose of music and noise. The party proceeded very orderly, until they came to the house where the wedding party was, when they entered the yard in front of the house, fired off the gun and pistol, marched backward and forward several times, making music and much noise, which finally ceased.</p> <p>After the music had ceased, Philip Walters approached the porch of the house, when Thomas McLaughlin, one of the wedding party, asked him what they wanted; Walters replied that they wanted to see the bride and groom. McLaughlin said they were not there. Walters replied that they were. McLaughlin then inquired, What will you do if you don’t see them ? Walters replied, he did not know. McLaughlin then repeated the question, when Walters replied that they would have to, or would, pull down the house. At this time, Thomas Keleher, another of the wedding party, came forward, and, some of the witnesses say, cried out, “If that is what you want, tear away;” others say he used the words, “ Jesus Christ, go to work, boys.”</p> <p>Walters was standing one or two steps from the porch on which McLaughlin was standing during the time the conversation was going on. The witnesses for the Commonwealth testified that Walters struck the first blow with the sword, while the witnesses for defendants swore that, when a rush was made upon him, Walters stepped backward, raised the sword, and held it parallel across his breast, requesting "McLaughlin to keep off. Keleher approached Walters from behind, seized him by the coat collar, and pulled him down. A general melee then occurred around Walters, who was very severely injured, receiving two wounds on his head — one a severe bruise, and the other a cut, some three inches in length, penetrating to the skull-bone.</p> <p>The deceased, who had remained in the house until the fight commenced, rushed out into the melee, and received a stroke from something having a flat surface, which stunned him. He was carried into the house, and after liking some five days, died from congestion of the brain. His skull, it appeared, was not fractured.</p> <p>The testimony showed that there were two doubld-bitted axes owned by the family, that were always kept outside the house at the wood-pile. That these axes were carried into the house by the deceased, on the day of the wedding, 'for the purpose of being used against persons coming to serenade.</p> <p>On the trial, the defendants’, counsel submitted certain points to the court, on which instructions to the jury was requested, which were all answered by the court in accordance with the views of the counsel, except the fifth and sixth. These points and answers were as follows:—</p> <p>5. That manslaughter is an unlawful killing in hot blood, on sufficient provocation, and if Martin Keleher was killed under such circumstances, persons who were present, neither aiding nor assisting in giving the blows which killed, nor intending any violence or injury to him, are not guilty of any offence charged in this indictment.</p> <p>Which was answered as follows; “We answer, this would be so if defendants did not take part in the serenade; but if they were there, participating and assisting in the serenade, and were within the grounds or yard, drawn up near the porch, and a general fight ensued, without design on their part, and one of the party, though not one of these defendants, struck the deceased, causing death, they would be guilty of manslaughter, as we have explained in our general charge.”</p> <p>6. That even if the serenade was improper or unlawful, and the parties engaged in it did not use violence, and some one of the serenaders slew Martin Keleher from other causes than those of a common design, only such person slaying is alone guilty of the crime laid in the indictment.</p> <p>“ We answer this point in the affirmative, but the killing must be outside of, and have no connection with the common design that caused the fight. If the fight resulted from the serenade, as we have described, although not intended, and the killing be done by one of the serenaders, it would be manslaughter in all concerned.”</p> <p>The court, in their general charge, instructed the jury as follows:—</p> <p>“If, however, the design of the serenaders was merely to go there with bells and guns for the purpose of making a noise, a,nd with no intention of injuring persons or property, and for that purpose alone marched into the yard and up to the porch, and one of their number asked to see the bride and groom, and without design got into an altercation with the inmates or gues-ts of the house that resulted in a fight, and in a general melee one of their number struck the deceased so that he died, all assisting or taking part in the serenade, would be guilty of manslaughter.</p> <p>“ But it is contended that even if the homicide was committed by Thomas Keleher by an accident, still the defendants are guilty of manslaughter. This question is not free from difficulty, but we instruct you that if these defendants and others combined with them, intended to enter that house in a riotous manner, and that if they had commenced an attack, and were forcing their way into it, and that Thomas Keleher was fighting in defence of himself and the house, and while so engaged in repulsing the assault of the rioters, accidentally struck his brother so that he died, all the assailants, their aiders and abettors, would be guilty of involuntary manslaughter.”</p> <p>Under these instructions the defendants were found guilty of involuntary manslaughter, and sentenced to three months’ imprisonment, a fine of one dollar each, and the costs of prosecution.</p> <p>This writ was then sued out by defendants, for whom, the answers given by the court below to the points propounded as above stated, the instructions given as above in the general charge, and the permitting a verdict to be found against defendants for involuntary manslaughter, on an indictment charging only murder and voluntary manslaughter, were assigned for error.</p>

<p> Interest on Legacy, when payable to Legatee. </p> <p>A grandchild, to -whom a legacy was given, to he paid upon her arriving at the age of twenty-one years, but in case of her death before arriving at that age, then to be divided among the children of the testatrix; is not entitled to interest thereon, unless such a relation of the legatee to the testatrix be shown, together with circumstances of destitution and dependence as seem to demand it and support the supposition that it was so intended.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of assumpsit, brought February 2d 1861, by Elizabeth Kessler against James Smith.</p> <p>The plaintiff declared on a promissory note, of which the following is a copy:—</p> <p>“1172.40. Philadelphia, June 23d 1860.</p> <p>“ Four months after date I promise to pay to the order of Elizabeth Kessler $172.40, without defalcation, for value received.</p> <p>(Signed) “ David Marple.</p> <p>(Endorsed) “James Smith,</p> <p>“ “ Elizabeth Kessler,</p> <p>“ “ John Manderson.</p> <p>“July 7, cash on this note $10.</p> <p>“ 31, do. 10.”</p> <p>There was also a count on a guaranty to pay said note, not alleged to be in writing, to which the common counts were added. A bill of particulars was furnished on call in the following words :—</p> <p>“ Bill of Particulars. — The promissory note specially declared upon.</p> <p>“Sharpless for plaintiff, March 28th 1861.”</p> <p>The defendant’s plea was “ payment,” to which plaintiff replied “ non solvit.”</p> <p>Before the case was set down for trial the defendant died, and his administrator was duly substituted, who, at the first time the case was called for trial, asked leave to amend his plea, and add the plea of “ non assumpsit.” This was refused by the court below, and the jury were directed to find for the plaintiff the full sum claimed in his narr. Defendant requested the learned judge to charge the jury that there could be no recovery on the count on the promissory note, as the same showed no legal liability as endorser to the plaintiff, the tenor of said note requiring her endorsement before that of the defendant, and that there could be no recovery on the count for a guaranty, the same not being averred to be in writing; which was also refused by the learned judge, and the bill of exceptions sealed. There was a verdict for the plaintiff for $174.89, upon which judgment was regularly entered on all the counts; whereupon the defendant sued out this writ, averring — 1. That the learned judge erred in refusing leave to the defendant to alter his plea, and plead “ non assumpsitand 2. In charging the jury that, under the plaintiff’s declaration, he was entitled to a verdict for the full amount set out therein.</p>

<p> Liability of Special Partner under the Limited Partnership Law. </p> <p>1. Under the Limited Partnership Law, a special partner cannot be personally involved, except by his own acts of violation or omission of duty, or by assenting to those of his copartners when he knows or is presumed to know them.</p> <p>2. Hence an alteration by the general partners, in the nature of the business provided for in the certificate of copartnership, without the knowledge of the special partner, does not make him a general partner so as to render him personally liable to the creditors of the firm.</p> <p>3. It is not the duty of the special partner to care for or collect the assets of the firm after failure.</p> <p>4. The special partner could not be affected by any assignments of the assets of the firm, if he had not assented thereto; and whore there was no offer to prove that assent, but only that the general partners had made them, it was properly rejected.</p>

<p>Appeal from the District Court of Philadelphia.</p> <p>This was an appeal by Robert D. Dunning from the final decree of the District Court distributing the proceeds of the sheriff’s sale of the personal property of Charles H. Brian.</p> <p>The material facts of the case, as .reported by the auditor to whom the question of distribution was referred, were these:—</p> <p>On the 21st day of June, A. D. 1858, Joseph B. Hutchinson, of Bristol, county of Bucks, and state of Pennsylvania, entered into and executed an agreement of limited partnership with a certain Charles Henry Brian, of the city of Philadelphia, under the provisions of the Act of Assembly of this Commonwealth, dated March 21st 1836, and the acts supplemental thereto, regulating and providing for the formation of limited partnership, so as to transact the business of merchant tailors. In this agreement it was specified that the partnership was to be conducted under the name of Charles Henry Brian; that the general partner was to be the said Charles Henry Brian, and the special partner the said Joseph B. Hutchinson; that the latter contributed to the stock of the firm the sum of $2500; that the partnership was to commence immediately at and after the signing of the said agreement, and was to terminate on the 21st day of June, A. D. 1860; which said agreement was duly acknowledged and recorded the same day in the recorder of deeds’ office in Limited Partnérship Record, in book marked T. H., No. 1, page 240, &e. On the 21st day of June, A. d. 1860, the said Hutchinson and Brian, by another agreement duly made and executed on that day, continued and renewed the partnership aforesaid for the term of two years from said date, said partnership under this agreement terminating on the 21st day of June, A. D. 1862, -which said agreement was duly acknowledged same day, and recorded May 21st, A. D. 1860, at Philadelphia aforesaid, in the said recorder of deeds’ office, in Limited Partnership Records, in book marked-T. H., No. 1, page 311, &c.</p> <p>On the 18th day of July, A. D. 1861, an amicable confession of judgment by Charles H. Brian was entered in the District Court in favour of the said Joseph B. Hutchinson, for the amount of $1100, which said judgment was founded on certain notes signed “ Charles H. Brian, per William Brian, Att’y-” This judgment was, on the 7th day of August, A. D. 1861, marked to the use of Robert D. Dunning. It was upon this judgment that the first writ of fieri facias, September Term. 1861, No. 822, is founded.</p> <p>On the 19th day of October, A. n. 1861, an amicable confession of judgment by Charles Henry Brian, trading under a limited partnership, in the name of Charles Henry Brian, was entered in the District Court in favour of Aaron V. Gibbs, as trustee for certain creditors of the firm of Charles Henry Brian, therein specified, for the amount of $4153.98. It was upon this judgment that the second writ of fieri facias, September Term 1861, No. 874, is founded.</p> <p>On the 2d day of November, a. d. 1861, an amicable confession of judgment by Charles Henry Brian, trading in limited partnership under the firm of Charles Henry Brian, was entered in the District Court in favour of said Aaron Y. Gibbs, in trust to pay certain creditors of the firm therein specified, including those for whose benefit the last preceding judgment was confessed, for the amount of $1059.43. It was upon this judgment that the third writ of fieri facias, September Term Í861, No. 1228, is founded.</p> <p>On the 14th day of October, A. d. 1861, the first writ of fieri facias, September Term 1861, No. 822, in the case of Joseph B. Hutchinson to the use of Robert D. Dunning v. Charles H. Brian, was issued by the prothonotary, and placed in the hands of the sheriff of Philadelphia county the same day.</p> <p>On the 19th day of October, a. d. 1861, the second writ of fieri facias, September Term 1861, No. 874, in the case of Aaron V. Gibbs v. Charles Henry Brian, trading under a limited partnership in the name of Charles Henry Brian, was issued by the prothonotary, and placed in the hands of the sheriff aforesaid the same day.</p> <p>On the 2d day of November, A. D. 1861, the third writ of fieri facias, September Term 1861, No. 1228, in the case of Aaron Y. Gibbs v. Charles Henry Brian, trading in limited partnership under the firm of Charles Henry Brian, was issued by the prothonotary, and placed in the hands of the sheriff aforesaid on the same day.</p> <p>Under these various writs of fieri facias, the said sheriff made return as follows:—</p> <p>To No. 822. “ Levied upon the personal property of the defendant. October 14th, A. D. 1861, and sold the same on the 6th day of November 1861, for the sum of seven hundred and eighty dollars.”</p> <p>To No. 874. “Levied, Octobei’ 19th, a. d. 1861, upon the personal property of the defendant, subject to a px’ior levy made under a certain other writ of fieri facias issued out of the court to September Term 1861, No. 822, and sold the same on the 6th day of November, A. D. 1861, for the sum of seven hundred and eighty -f-fa dollar’s.”</p> <p>To No. 1228. “Levied, November 2d, upon the personal property of the defendant (November 2d, a. d. 1861), subject to a px’ior levy made under two certain other writs of fieri facias issued out of this court to September Term 1861, No. 822 and 874, respectively, and sold the same November 6th 1861, for the sum of seven hundred and eighty dollars.”</p> <p>Having under them sold - the effects of the partnership of Charles Henx’y Bx’ian. The amount paid into court was $432.02.</p> <p>It appeared from the testimony of Claghorn, public accountant, that, at the request of the general partner, he had made out a statexnent from the books of the firm up to June 1st, A. D. 1861, in order that the state of the affairs of the firm up to that tixne might be ascertained, and that this examination showed that the firm was, in his judgment, totally insolvent on that day.</p> <p>The capital, it appeared, was placed on the books to the credit of John Hutchinson, the son of Joseph B. Hutchinson, the special partner,-but it was shown that John Hutchinson never placed any money in the firm, that he was a mere clerk, and that it was his father, Joseph B. Hutchinson, who placed the amount in the firm, in accordance with the articles of copartnership.</p> <p>It appeared from the testimony of Charles ílexiTy Brian, whose testimony was admitted under objection, that the firm never owned any real estate; that the assets consisted of open accounts and merchandise — no cash on hand. (This deposition wa.s taken October 24th 1861, which is probably the reason that it does not coincide, as to cash on hand, with the statement of the accountant.) “That Joseph B. Hutchinson had requested the witness (who was the general partner) to sign the amicable confession of judgment in the case of Hutchinson, v. Brian; that he, H., requested him, B., to go to Mr. Castle, who would explain it to him; that he objected to sign, but Mr. Castle told him, B., that it was to save Joseph B. Hutchinson, and that if anybody should sixe him, he should let Hutchinson know; and that he was afterward sued, and informed Hutchinson; tlxat he, Brian, had been informed by Hutchinson that Mr. Castle then advised II. to transfer the judgment to Dunning, so that he, Joseph B. Hutchinsoxx, might not .be known in the matter; that H. told him to make a bill of the goods to Dunning, and that an invoice was taken, but that was all that was done with tbe invoice. It also appeared that the general partner had no knowledge that the money for which the first judgment was given ever went into the firm; that nothing appears on the hooks of it, nor is there any credit in them in favour of Joseph B. Hutchinson, nor has John Hhtchinson any credit for the $1100; that the general partner had no knowledge of it, and never consented to it; that he never heard his father (who was in the store as superintendent) say that Joseph B. Hutchinson gave it to him (William Brian, the father), till a few days before the judgment was given, and that then he said he got it to buy goods for the business, and upon that, he (Charles Henry Brian) confessed the judgment; that the notes appear to have been signed by William Brian, as attorney, but he (Charles Henry Brian) had no recollection of ever having given a power of attorney to sign notes, and that to the best of his knowledge and belief, he never did. It also appeared that* the general partner requested Joseph B. Hutchinson, the special partner, to join with him in making a general assignment, which he refused to do.”</p> <p>The counsel of Mr. Robert D. Dunning, assignee of the judgment confessed by Brian to Joseph B. Hutchinson, No. 1197, June Term 1861, for $1100, claimed the fund in court, or a rateable share thereof, contending, in support thereof, that Joseph B. Hutchinson was a creditor of the firm ; that the judgment was a judgment against the firm, and that Hutchinson, and his assignee Dunning, stood on the same platform as the other judgment-creditors, that Hutchinson’s judgment was the first upon which execution issued, and having the first levy, his client was entitled to the money, or a rateable share thereof, with the other creditors.</p> <p>The auditor did not award the fund in court, or any part thereof, to Mr. Robert D. Dunning; holding that judgment as binding only on defendant.</p> <p>The auditor was also of the opinion that the 20th and 21st sections of the act relative to confessions of judgment by partners of insolvent limited partnerships, presented an insuperable objection to awarding the fund to the second judgment-creditor, Aaron Y. Gibbs.</p> <p>The third judgment, which was confessed in the firm name to A. V. Gibbs, as trustee for the partnership creditors, and contains the names of all those mentioned in the second judgment as creditors, was held not subject to the objection that it contains a preference; but that it bound the partnership effects (the proceeds of which is the fund in court) and the separate estate of the partner confessing it.</p> <p>He therefore, on these facts and the law, awarded the fund in court, less the expense of audit, &c., to the said Aaron Y. Gibbs, plaintiff in judgment No. 2180, September Term 1861.</p> <p>Exceptions were filed to the auditor’s report, by the special partner; but on argument in the court below, before Stroud, J., they were dismissed, and the distribution of the auditor confirmed.</p> <p>This appeal was then taken as above stated, by Mr. Dunning, for whom the following errors were assigned:—</p> <p>I. The learned court erred in confirming the report of the auditor which determined, 1. That the judgment of appellant was a judgment against Charles Henry Brian, individually, and not against the special partnership of “Charles Henry Brian.”</p> <p>2. That appellant’s judgment was void as to the creditors of the special partnership. 3. That because of the insolvency of the partnership, the appellant was postponed until after the other Creditors had been paid. 4. That appellant was not a creditor of the partnership. 5. That appellant was a general partner. 6. That the last judgment confessed to Gibbs was valid, although it did not embrace the appellant as one of the creditors of the partnership.</p> <p>II. In determining that Hutchinson, as to the money represented by his judgment, was a special partner, and as such could not take a confession of judgment from the partnership, and could not claim any part of the fund until the creditors of the partnership had been paid.</p> <p>III. In not, upon the whole record, awarding the money, or a rateable portion thereof, to the appellant..</p> <p>IY. In awarding the fund ‡0 Gibbs, to the exclusion of the appellant.</p>

<p>Error to the Common Pleas of Carbon county.</p> <p>This was an action of trespass on the case by Robert Ratcliff, John Johnson, and George Johnson against John McClintock, John W. McKnight, and John L. McKnight.</p> <p>The plaintiffs averred in their declaration that they were lessees of certain collieries in Banks township, Carbon county, with the right to enjoy and work the same without any interruption thereof by the damming or obstruction in the flow of a stream called Beaver creek, &e. But that defendants, well knowing, &c., but continuing, &c., did wrongfully and injuriously dam, fill up, obstruct, and-impede by stones, timbers, and other materials, the channel of 'said stream — divert and change its course in and upon the said collieries, coal-mines, works, and premises, by reason whereof they were filled up, inundated, destroyed, and rendered useless for the space of four months, causing plaintiffs great labour and expense in removing the water, and depriving them of the use of said mines and the profits thereof, &c.</p> <p>To this John McClintock -and John W. McKnight jointly pleaded not guilty; which plea was also subsequently pleaded by John L. McKnight, who appeared by other counsel.</p> <p>John McClintock died after suit brought and before the trial.</p> <p>The plaintiffs below, who were partners, were lessees and occupants of certain coal-mines known as the Stafford Colliery, and the defendants below, who were also partners under the Limited Partnership Law', were lessees and occupants of certain other mines known as the Beaver Meadow' Mines. The mines of both parties adjoined each other, and some of the veins of coal extended continuously through the premises of both parties. Prior to the time when plaintiffs made their lease, a vein of coal in the ground occupied by the defendants had been worked beyoud their boundary line, a short distance into the premises subsequently occupied by the plaintiffs. This appears to have been done with permission of the plaintiffs’ lessor, to whom defendants paid rent for the coal thus mined. Thus an open gangway was made by which there was free intercommunication between the mines of the two parties, and the plaintiffs’ premises were in this condition when they made their lease, and went into possession as lessees. After going into possession they worked the same vein by directly continuing the former working, and without leaving any barrier or pillar of coal, as was testified to be the custom, for the purpose of preventing the influx or efflux of water from one mine to the other. The water level of plaintiffs’ mine was higher than that of defendants’ mine, so that the effect of not leaving the usual barrier or pillar was that the water would be drained from the plaintiffs’ working into that of the defendants. That particular working of the defendants which communicated with the gangway of the plaintiffs, terminated in a slope called No. 9. This was an abandoned opening from which the coal had been worked out, and the defendants, as was shown in the testimony to be usual in tbe case of abandoned openings, allowed the water to collect and remain in it.</p> <p>On the night of a Saturday in the early part of June 1855, a freshet occurred in that neighbourhood, and the channels of the small tributaries of the creek became filled. One of these tributaries ran across the grounds of the defendants, and upon and over the surface of the workings connected with defendants’ slope, No. 7, at which they were then working. The water began to break through the surface of the ground into Nos. 5 and 7, and in order to prevent such damage, a gang of miners living in the immediate vicinity, acting under the agent of defendants, undertook to modify the direction of the stream. They accordingly threw up a dam, which directed the water across the ground used by the defendants for stacking coal. On the morning of the following Sunday, about eight o’clock, a man named Brader, and others, made another dam throwing the water in another direction. Subsequently, in the forenoon of the same day, Reynolds, the superintendent of plaintiffs’ mines, went over to the locality, and with some workmen destroyed the dam that he found there, and erected another giving the water another direction. Still subsequently to this.last change, Brader went up to the mines a second time, and finding that the dam he had erected had been taken away and another one substituted, he in turn took away the latter and restored the one he had first put there. Same day John W. MeKnight, one of the defendants, an acting partner of the firm, came upon the ground, but he took.no part whatever in the matter, gave no orders or directions, and went away. The allegation of the plaintiff on the trial was that a trespass was committed by John W. MeKnight, which is imputable to the entire firm to which he belonged. John L. MeKnight was the limited partner of the firm ; but it was alleged that, by reason of his subsequent acts, he had rendered himself liable as a general partner, and the evidence, answers to points, and charge of the court on this subject, constitute part of the cause. John L. MeKnight resides in the state of New Jersey, and was in that state when this occurrence took place. On the trial, E. M. Budd was called as a witness for plaintiffs, for the purpose of proving the nature of the partnership existing between McClintock and the Messrs. MeKnight, and after testifying to the delivery of a note to McClintock & MeKnight for coal, which they -were to deliver to the witness, and which McClintock said John L. MeKnight (whom he had sometimes met in the store of the firm), would make all right, plaintiffs’ counsel proposed to ask the witness if “ McClintock said that John L. MeKnight had said that he would attend to the note.” This was objected to by the defendants but admitted by the court, and constituted the only assignment of error on the subject of the admission or rejection of testimony.</p> <p>The following points were submitted by plaintiffs below:—</p> <p>1. That the Act of Assembly relating to limited partnerships has not been complied with by the defendants in the drawing, recording, and notice by publication of the certificate given in evidence in this case.</p> <p>2. That if John L. McKnight has transacted any business for said partnership, or has been employed for that purpose as agent, attorney, or otherwise, he has rendered himself liable as a general partner.</p> <p>3. The restriction of the liability of a limited partner under the Act of Assembly of March 21st 1836, to the funds contributed. by him to the common stock, is confined to debts contracted by said partnership, and does not apply to cases of torts committed by the agents or servants of the partners as owners of property, or by agents or servants in the conduct of the business of the firm.</p> <p>4. If the defendants are liable for the original diversion of the water into and upon the property of the plaintiffs, and a dam was erected at an intermediate point protecting that property, which was afterwards removed, whereby the water again flowed where the servants of the defendants had originally turned it, and such erection and removal were not made by the parties or either of them, the defendants are as much liable for the damage done by the water after the removal of such dam as they would have been before its erection.</p> <p>The defendants’ counsel also submitted the following points: — ■</p> <p>1. One copartner is not responsible for a wilful tort committed by another; nor is a firm responsible for the wilful tort of an agent or servant of the firm.</p> <p>2. The declaration charges the defendants with committing a wilful tort. If, from the evidence, it appears that the alleged tort was committed by a servant of the firm at his own instance, the firm is not liable; or if so committed solely by one or more members of the firm, the remaining members will not be liable.</p> <p>3. The defendants are not liable in this action merely because they are copartners, but can only be made liable upon proof of actual participation in the alleged trespass.</p> <p>4. The defendants are charged in their individual capacity as joint trespassers, and if one or more of the defendants did not order or procure the alleged trespass to be committed, or assent directly thereto at the time, there can be no recovery against such.</p> <p>5. If the defendant, John L. McKnight, did not order or procure the act to be done, and was absent when it occurred, and did not assent thereto at the time or subsequently, he cannot be held liable in this action.</p> <p>6. If the copartnership of the defendants was a limited co-partnership, and the defendant, John L. McKnight, was a special partner, he is not liable for the act now complained of, though committed by th*- general partners, and there can be no recovery against him in this action.</p> <p>7. The evidence shows that the defendants constituted a limited copartnership, under the Act of Assembly, and that John L. McKnight, at the time of the alleged trespass, was a special, and not a general partner, and that he cannot therefore be held liable.</p> <p>8. There is no testimony of any act alleged to have been done by John L. McKnight, which is beyond the limit of his right and authority as a limited partner, to examine, from time to time, into the state and progress of the partnership concerns, and to advise as to their management.</p> <p>9. There is no evidence which, in point of law, makes John L. McKnight liable in this action.</p> <p>10. If the jury believe that the act or default of the plaintiffs, or their unskilful mining, contributed to the happening of the occurrence, or the production of the damage or injury complained of, the plaintiffs cannot recover.</p> <p>11. If the plaintiffs, in conducting their mining operations, chose to connect their works with those of the defendants, and could, but did not, interpose any barrier between the respective workings, or chose to extend or work their slope below the water level from the top of defendants’ shaft, they became subject to all the risks and hazards thereby occasioned, and to the effects of such rights and incidents as would attach to the defendants’ dominion over and use of their own property.</p> <p>12. The defendants, in order to protect a more valuable mining operation belonging to them, would have a right either to permit the drainage-water of their mines to collect in the abandoned shaft No. 9, or for the same purpose to direct the waters suddenly accumulated in a freshet, into that shaft, and if the plaintiffs, from economy, or their own convenience or otherwise, had connected their workings with defendants’ workings, or allowed such a connection to continue after leasing then-premises, without interposing the usual barriers to intercommunication between the workings, they have no legal right to compensation for injury thereby occasioned.</p> <p>13. If the plaintiffs had notified or informed the defendants that water would flow out from the top of the shaft No. 9 before it would damage the plaintiffs’ mines, and they, the plaintiffs, had acted upon such belief, and had led the defendants so to believe, and the defendants, in good faith, acted upon such statement of the plaintiffs, the latter are estopped from treating such act as a trespass, or from recovering damages, because the defendants treated their statement as true.</p> <p>14. It was the duty of the plaintiffs to leave a sufficient barrier to protect their workings against the influx of water; and if they neglected so to do, and this neglect led to or contributed to the happening of the injury, or the extent of the damage, they cannot recover; nor can the plaintiffs recover if the rules of good mining, and the custom of miners, require such a barrier to be left.</p> <p>The court below charged the jury as follows:—</p> <p>“The 1st and 3d of plaintiffs’ points are answered in the negative. The 2d and 4th are answered in the affirmative. The 1st, 2d, 3d, 5th, 7th, 8th, 9th, 11th, 12th, 13th, and 14th of the defendants’ points are answered in the negative. The 4th, 6th, and 10th are answered in the affirmative.</p> <p>“ In answering the points placed before me, I have mainly declared the law of the case. The action is trespass, and a tort is complained of. The defendants are sued as individuals, not as partners, and the suit is well brought in that form. The evidence of a partnership has been given for the purpose of connecting the defendants with the tort complained of. If they were not present and participating in the trespass, it was competent to show that it was done by their direction or procurement.</p> <p>[“If the stream of water was diverted from its natural or accustomed channel, and turned upon the premises of the plaintiffs, a trespass was committed. The plaintiffs’ rights under ground, and in their mines, -were just as secure from such a trespass as their property above ground. Suppose the water had been turned into the Stafford mines at the top of the slope, and the mine filled, who would have questioned that a trespass had been committed ? Does it alter the case because another opening was found by which the water could be sent to the same spot, and work the very same injury?] The plaintiffs were in the lawful possession/of their own mine. They were not bound to purchase a pump from the defendant, and hold it in readiness to protect their works against the wrongful act of any one. They were not bound to make a water level, ascertain and inform an adjoining operator of their own rights, and caution them against an infringement. Nor were they bound upon their own land to leave a pillar of coal to mark the division between the two mines. This argument might have been used with much more force, however, if the injury had resulted from a natural or ordinary accumulation of water. Such was not the ease in this instance. The injury was done by the act of somebody. The water would not have flowed into the plaintiffs’ mines if let alone, and no one had the right to divert it in such manner as to injure another.</p> <p>[<£ It is further contended that a license was given to defendants to fill the old shaft with water by these plaintiffs, and a loose conversation between these parties in reference to the height the water might rise in the abandoned shaft, without injury, is relied on to establish that fact. If you believe all the evidence on that subject, it does not amount to a license.]</p> <p>“ Partners are liable for a trespass committed by themselves or their agents, employees or servants, in the legitimate conduct of their partnership business. If it be done by themselves, or under their immediate direction, there can be no doubt about it. If it be done by the direction of their authorized agent, acting within the scope of his power as such, it is the act of the firm or of the partners. If it be done by the workmen while in the employ of the firm, they furnish the force that commits the tort. If not partners, and they directed and procured the act to be done, they are jointly liable, and their acts and declarations would be evidence against them. What can it matter whether the principals set the men to work who did the act, or authorized their agent to do it ? If as partners they authorized the act, they jointly authorized it. If they subsequently approved or ratified it, it is evidence tending to show that it was done with their consent and approbation. Hard indeed would it be if such was not the law. An individual, or firm or corporation, finding that a wrongful act would result to their own advantage, might employ an irresponsible person to perform it, by less inducement than the profit to be derived from it. Thus they might ruin a neighbour, pocket the ill-gotten gain, and escape any responsibility. Such is not the law.</p> <p>“ If John L. McKnight was a general partner in the firm of McOlintoek & McKnight, and that firm, in the conduct of their legitimate partnership business, committed a trespass upon, the plaintiff, he is liable.</p> <p>“ If he was a limited partner under the Act of Assembly in relation to limited partnership, he is not liable, and he was at the time either a general or limited partner.</p> <p>££ Was he a limited partner ? It is contended that the Act of Assembly on that subject, if not strictly, has been substantially complied with. Although the question is not free from doubt in my own mind, the jury are instructed that the law has been complied with, and that John L. McKnight started with the firm as a limited partner. If he continued until after the cause of action in this case originated to comply with the law under which he connected himself with the firm, his relation to it was not changed. But it is alleged that John L. McKnight, by his own acts, rendered himself a general partner with McClintock & McKnight, the other members of the firm. He had the right, from time to time, to examine into the state and progress of the partnership concerns. He had a right to be at the office in Philadelphia, at the mines, and in the store. He had a right to examine the books and papers, to see how the work was progressing, and to consult with his partners in reference to, it. He had the right to make inquiries of the agents and clerks in reference to the business. He could buy coal or anything else from the firm, or might sell to the firm, without any violation of the Act of Assembly. But he had no right to transact any business for or on account of the firm. Nor could he be employed for that purpose as agent, attorney, or otherwise. He had no right to sell coal for the partnership as an agent; nor had a right to buy potatoes, or car-wheels, or any other article for the firm, if in doing so he acted as the agent of the concern. He had not the right to negotiate money as the agent of the partnership ; nor could he assent to being held out to the public as the moneyed man of the concern, without transcending his rights under the Act of Assembly. As a limited partner, he had no right to interfere in the management of the general business of the concern, neither as a. principal nor as agent or attorney; when he invested his money he trusted it to the management of others. If he did no more than to examine the books, and papers, and works, and to make inquiries, and inform himself as to the management of the concern, he only exercised his rights. If he did do more, and interfered with the management of the business generally, or if he acted as the agent or attorney for the partnership, he exceeded his rights, and the law makes him a general partner. This is a question of fact which, under the evidence, must go to the jury. His acts and declarations are evidence against him, but the declarations of McClintock are not evidence against John L. McKnight unless he was present, and assented to them or adopted them. Copartners are liable for a tort committed in the prosecution of their legitimate business, or if done by their orders, or with their present assent: 7 Casey 319. If afterwards approved, ratified, and maintained, it is evidence of their assent.</p> <p>“Finally, the jury are instructed,</p> <p>“ 1. That if John L. McKnight was a mere special partner, their verdict must be in his favour.</p> <p>“ 2. That John W. McKnight was present; he assented by his silence to the building of the dam, and the diversion of the water; he kept it up and maintained it; he is liable, and their verdict must be against him.</p> <p>[“ 3. If the jury believe, from all the evidence, that John L. McKnight, by his acts, rendered himself a general partner in the firm of McClintock & McKnight, and that the act was done by the servants or agents of that firm, and assented to by one of tbe partners, then John L. McKnight is equally liable with John W. McKnight, and their verdict should be against both, j</p> <p>“4. If the plaintiffs are entitled to recover either against one or both of the defendants, the measure of their damage will be compensatory; the actual damage sustained; the loss occasioned by delay. If the mine was rendered entirely useless, then the profit that might have been made on the coal would be a fair basis for estimating damage. If the water could have been removed, the cost of doing it might be the proper measure. The actual damage to the plaintiffs, under all circumstances, should be the amount of your verdict.”</p> <p>To this charge counsel on both sides excepted.</p> <p>Under these instructions there was a verdict and judgment in favour of the plaintiffs against the two surviving defendants; whereupon this writ was sued out by John L. McKnight, for whom the following errors were assigned:—</p> <p>1 to 12. The court erred in permitting the plaintiffs’ counsel to ask E. M. Budd the following question: “Did or did not MeClintock say that John L. McKnight had said he would attend to the note ?” And in negativing the 1st, 2d, 3d, 5th, 7th, 8th, 9th, 11th, 12th, 13th, and 14th points submitted by defendant below.</p> <p>13. The court erred in affirming the fourth of the points submitted by the plaintiff below.</p> <p>14, 15, 16. The court erred in charging the jury as above enclosed in brackets. And</p> <p>17. In charging the jury upon the measure of damages, and in saying that they might include “ the loss occasioned by delay;” that “ if the mine was rendered entirely useless, then the profit that might have been made on the coal would be a fair basis for estimating damage;” and that “if the water could have been removed, the cost of doing it might be the proper measure.”</p>

<p>Error to the Common Pleas of Schuylkill county.</p>

<p>Action against Railroad Company for causing Death of Parent, who to he Plaintiffs in. — Proceeds of Judgment how divided. — Proof of Negligence in such cases.— Waiver of Damage.</p> <p>1. An action against a railroad company for negligence in causing the death of a father is properly brought in the name of all the children; the recovery is for the benefit of all, the amount to be distributed as in case of intestacy.</p> <p>2. - The value of the life lost, estimated by a pecuniary standard, is what is to be recovered, to be divided among all the children alike; though the action is in tort, yet under the statute, there can be a joint recovery without showing that a joint damage had been sustained.</p> <p>3. A warning of danger to the deceased was but evidence of negligence, and as such for the jury; and where the court charged that knowledge of the danger would be proof of negligence, giving the legal consequences, and leaving the jury to apply the law to the facts, but declined to instruct them that the warning constituted negligence, it was not error.</p>

<p>Certificate from the Court at Nisi Prius.</p> <p>This was an action of ejectment brought by Emma M. Kenyon against Mary Stewart, to recover possession of premises No. 209 North Tenth street, in the city of Philadelphia. Both parties claim title under the late Captain Henry Kenyon, who died some time between the 12th of August and the 17th of October, A. D. 1833. The defendant claimed as a purchaser at an Orphans’ Court sale, under a will dated August 7th 1833, and codicil dated August 12th 1833, alleged to have been made by Captain Kenyon at the times of their respective dates. On the 17th day of October 1833, these papers were admitted to probate.</p> <p>Abraham L. Pennock and Samuel Sellers, who were named as executors therein, renounced and declined to act immediately after Captain Kenyon’s decease, and lettei-s of administration e. t. a. were granted to the Rev. William T. Brantley. Mrs. Mary Ashbridge, the principal beneficiary named in the will, at once took possession of the real estate, and collected the rents of the same down to the time when the defendant purchased the property in dispute, and came into possession thereof. The Rev. Mr. Brantley died in the year 1835, and on the 30th August 1835, letters of administration d. i. n. c. t. a. of H. Kenyon, were granted to Joseph H. Ashbridge. On the 5th day of January 1855, J. H. Ashbridge presented his petition to the Orphans’ Court of Philadelphia county, setting forth that Captain Kenyon, having first made the will and codicil aforesaid, died seised of the premises which are in dispute in this case, and also of certain premises in Pine street between Sixth and Seventh streets (which were the subject of dispute in an action of ejectment then pending between the present plaintiff and Mrs. Mary Ashbridge,’ in the Supreme Court of July Term 1854, No. 102), and praying for an inquest of partition among the devisees named in the aforesaid will and codicil. A jury of inquest duly appointed reported that the same could not be divided without prejudice to or spoiling the whole; and assessed the premises in dispute in this case, being No. 1, at $2000, and the premises in Pine street, No. 2, at $6000. The court thereupon granted a rule on all the parties interested to accept or refuse the same at the valuation named. Service of this rule was accepted, March 30th 1855, by Mrs. Mary Ashbridge and the other devisees named in the said will and codicil, all of whom refused to take 'the estate of Henry Kenyon, deceased, or any part thereof, at the valuation, and agreed that an order of sale of said premises, No. 1 and No. 2, should be made forthwith, and without further notice. On the 6th of April following, the court made an ord.er for the sale of the said estate by the administrator ; in pursuance thereof, the premises in dispute were sold to the defendant, on the 9th day of May, A. d. 1855, for the sum of $2000, and $50 of the purchase-money was paid at the sale. On the 18th day of May following, the sale was confirmed by the court. The balance of the purchase-money was not paid until about the 16th day of February, A. D. 1856.</p> <p>The plaintiff, who was the only known child of Captain Kenyon, and who came of age in 184-2, asserted that the alleged will and codicil of August 7th and 12th 1833, was not the will of Captain Kenyon; that he was not compos mentis at the time the said will and codicil were alleged to have been made; and that it was procured by fraud practised on him and on the plaintiff, by-Mary Ashbridge; and therefore claimed the property by a double title: 1st. As devisee under a will made by Captain Kenyon some time prior to his last sickness and death, which she alleged Mary Ashbridge had destroyed or suppressed; and 2d. As the daughter of Captain Kenyon, and only heir at law of his estate.</p> <p>In the year 1848 the present plaintiff commenced an action of ejectment against Mary Ashbridge, to recover possession of the premises in Pine street. On the 31st of January 1850, the depositions of Elizabeth Chase and Theresa Kern were taken, and on the 30th of September following, Mrs. Mary Jennings’s deposition was taken. This last, with the two former depositions, were filed in the cause on the 21st of December in the same year. The same day, under defendant’s rule to declare in eight days or non pros., the narr. was filed.</p> <p>The case was then referred to arbitrators, under a compulsory rule, who, on the evidence submitted to them, on the 11th of June, A. D. 1851, filed their award in favour of the defendant. From this award no appeal was taken, but in August 1854 the plaintiff brought a second action for the Pine street property, in the Supremo Court to July Term 1854, No. 102. This is the action that was pending when the present defendant purchased the property in Tenth street. The lot at that time, and for several years, had been vacant. A short time after the sale had taken place, the plaintiff heard of it, and went to the defendant and informed her of her claim to the property. She also wrote her a notice of the proceedings in ejectment, and notified her not to pay the purchase-money. In consequence of this notice, a motion was made in the Orphans’ Court to set aside the sale, but from the docket entries filed therein, it does not appear that anything further was done in the premises. The petition or affidavit to sot aside the sale was not produced, and could not be found in the Orphans’ Court office.</p> <p>Before the purchase-money was paid, however, a refunding or indemnity bond was given by John R. James to the defendant.</p> <p>On the trial, the plaintiff’s counsel proposed to present their whole case to the jury as evidence in chief. After showing how the defendant derived title under Mrs. Mary Ashbridge, the principal devisee under the will and codicil proven October 17th 1833, the deposition of Mary Jennings, which was proven to have been taken and filed in the ease of Kenyon, the present plaintiff, v. Mrs. Mary Ashbridge, in this court, of July Term 1848, No. 100, and to have been read on the trials of the case between the same parties, in this court, of July Term 1854, No. 102, was first offered generally. This was objected to, and the court sustained the objection in the following words: “ This deposition is not between the same parties nor privies, either in estate or in blood, and we cannot admit the testimony.”</p> <p>Afterwards it was shown that the defendant, before she consummated the purchase of the property, was duly notified of the plaintiff’s claim, and had taken the refunding or indemnity bond for her protection against loss. Under these circumstances, the depositions of Mrs. Mary Jennings, Elizabeth Chase, and Theresa Kern, which were all taken and filed in the case of Kenyon v. Ashbridge, July Term 1848, No. 100, and the notes of counsel of the testimony of Hannah M. Barber, deceased, a witness on the trial of said case before arbitrators, were then offered in evidence, and overruled by the court.</p> <p>A portion of the deposition of Mrs. Atkinson, taken and filed in the-ease of Kenyon v. Ashbridge, of July Term 1854, No. 102, relating to the existence of a prior will made by Captain Kenyon in favour of the plaintiff, was also excluded by the court.</p> <p>The effect of these rulings was to confine the evidence in chief to the proof that the- plaintiff is the heir at law of Captain Kenyon. On this point several witnesses were examined. Part of the deposition of Mrs. Atkinson was also read for the same object. In addition to this, the verdict of the jury in the case of Kenyon v. Ashbridge, of July Term 1854, No. 102, was also offered, but overruled by the court. The plaintiff here rested her case.</p> <p>The defendant’s counsel did not produce the original wall and codicil under -which she claimed, but offered instead an exemplification thereof by the present register of wills of Philadelphia county, in which was also included the probate thereof made before J. Hawes, register of wills at that time. This offer was objected to, because the validity of these papers was the principal subject-matter of dispute in this action; and to assist in the determination of this vital question, it was necessary that the originals should be produced before, and examined by, the jury ; that in this issue the originals were the best evidence: they could, and therefore ought to, have been brought into court. The objection, however, was overruled by the court.</p> <p>The defendant next offered in evidence a certificate of the present register of wills of Philadelphia county, that “ no caveat” had been filed in the case of the will and codicil of Henry Kenyon, deceased, dated respectively August 7th and August 12th 1833.</p> <p>This was objected to as irrelevant, but the certificate was admitted by the court as evidence, under the 7th section of the Act of Assembly approved April 22d 1856. The section referred to is in the following words :—</p> <p>“ Section 7. That the probate by the register of the proper county, of any will devising real estate, shall be conclusive as to such realty, unless, within five years from the date of such probate, those interested to controvert it shall, by caveat and action at law duly pursued, contest the validity of such will as to such realty: Provided, that all persons who would be sooner barred by this section taking immediate effect, shall not be thereby barred before two years from the date hereof.”</p> <p>The defendant then gave in evidence an exemplification of the proceedings in the Orphans’ Court, and also an exemplification by the present register of wills of the administration-bond of Joseph II. Ashbridge, and the proceedings in relation thereto. These papers showed that Mrs. Mary Ashbridge held a life interest in the whole estate of Henry Kenyon, under the will and codicil of August 1833. 2d. That upon the renunciation of the executors named therein, she was entitled by law to the administration. 3d. That she renounced in favour of Joseph H. Ash-bridge. 4-th. That by the will and codicil she had a right to take absolutely the whole of the estate or any part of it at a fair valuation. 5th. That she refused to do so, and by virtue thereof the sale of the whole estate was ordered, under which the defendant purchased the property now in dispute.</p> <p>The defendant also set up an adverse possession of twenty-one years and upwards, by proving that Mrs. Ashbridge collected the rents of the property from 1835 to the year 1851, when, or shortly afterwards, it was burnt down; and that she had continually paid the taxes from 1837 to the time the defendant purchased. The property was assessed in the name of Kenyon until 1846, and then changed to Mary Ashbridge, in whose name it continued until 1857 ; it ivas then changed to the name of the defendant. This, with some testimony which was given for the purpose of controverting the testimony of the plaintiff as to 'the marriage of Captain Kenyon, concluded the defendant’s case.</p> <p>The plaintiff in rebuttal called Abraham L. Pennock, and proposed to prove by him and other witnesses, that the will and codicil set up by defendant were procured by fraud, and that Captain Kenyon, at the time of their alleged execution, was incompetent to make a will. This was objected to by defendant’s counsel, on the ground that by the 7th section of the Act of Assembly, approved April 22d 1856, entitled “ An Act- for the greater certainty of title and more secure enjoyments of real estate,” the probate of this will by the register of Philadelphia county at this time, is conclusive as to the defendant’s title to the property in dispute. The court sustained the objection, and overruled all the testimony offered on this point.</p> <p>In this connection the depositions of Mrs. Jennings and others, and the notes of the testimony of Hannah M. Barber, deceased, were again offered in evidence, but objected to because not between the same parties, and again overruled by the court.</p> <p>The record of the ejectment between the present plaintiff and Mary Ashbridge, in this court of July Term 1854, No. 102, was then again offered in evidence to show that at the time the Act of 22d of April 1856 referred to was passed, an action at law was pending, in which was involved the question of the validity of the will and codicil set up by defendant, that it was duly pursued and finally determined, and that in that action the said will and codicil were determined to be invalid. The objections to this offer were that the suit was not between the same parties and about other property, and because it would be in contravention of the previous ruling. This testimony was also excluded on the Act of Assembly above referred to.</p> <p>The plaintiff having no further testimony to offer, the case was submitted to the jury, without argument by counsel. The learned judge then charged the jury that they should find a verdict for the defendant upon the evidence of a will and codicil made, by Captain Kenyon, and proved October 17th 1833, and the title shown thereunder. This was excepted to by the plaintiff.</p> <p>There was a verdict and judgment accordingly; whereupon the plaintiff requested the learned judge to certify the case to the court in banc, averring,</p> <p>1. That the court erred in not admitting in evidence the deposition of Mary Jennings, taken and filed in the case of Kenyon v. Ashbridge, in this court, of July Term 1848, No. 100, and read on the trial of the case of Kenyon v. Ashbridge, of July Term 1854, No. 102, and offered by the counsel for the plaintiff, as stated in the first bill of exceptions, which deposition was excluded for reasons stated by the court as follows: — “ This deposition is not between tbe same parties or privies, either in estate or in blood, and we cannot admit the testimony.”</p> <p>2. In not admitting in evidence the record of the case of Kenyon v. Ashbridge, in this court, of July Term 1854, No. 102, with the verdict therein, which was offered by the plaintiff to show that it established the heirship of the plaintiff as the daughter of Captain Henry Kenyon, deceased, as stated in the second bill of exceptions.</p> <p>3. In refusing to admit in evidence the depositions of Mary Jennings, Theresa Kern, Elizabeth Chase, and the notes of the testimony of Hannah M. Barber, witnesses in the case of Kenyon v. Ashbridge, in this court, of July Term 1848, No. 100, who are now deceased, or out of the jurisdiction of the court, which were offered by the counsel for the plaintiff, after it was proven to the court and jury, — 1. That the said depositions were taken and filed in this court, in said cause, long before the defendant came into possession of the premises in dispute. 2. That at the time the defendant purchased the property, the case of Kenyon v. Ashbridge, in this court, of July Term 1854, No. 102, in which the title to another part of the estate of Henry Kenyon was in dispute, was then pending and undetermined. 3. That the subject-matters in controversy in said suit were identically the same as those in this suit, viz., the validity of the alleged will of August 7th 1833, and codicil of August 12th 1833, of Henry Kenyon, deceased, the legitimacy of the plaintiff, and the existence of a will, made by Captain Kenyon in favour of the present plaintiff. 4. That the present defendant came into possession of the premises in dispute under the defendant in the case of Kenyon v. Ashbridge. 5. That the defendant had full notice of the plaintiff’s claim to the whole estate of Henry Kenyon, deceased, and that the validity of the alleged will and codicil under which she (defendant) now claims, was the main point in dispute in the case then pending, before the sale to her was consummated, and before she had paid more than $50 of the purchase-money. 6. That defendant had required and taken a refunding or indemnity bond against loss.</p> <p>4. In refusing to admit in evidence the passages in the deposition of Sarah Ann Atkinson, contained in the eighth bill of exceptions, as follows: “ Captain Kenyon told me he had made his will, and willed all to his daughter Matilda. That is this daughter. Her name is Emma Matilda Kenyon. I heard him say this about three years before his death. I met him one day in Schuylkill Eighth street, with his daughter, when he told me what I have told you.”</p> <p>“ I heard him say he had made his will and left his property to her.”</p> <p>5. In admitting as evidence to the jury on the trial, the exemplification by the register of wills of Philadelphia county, of the alleged will and codicil of Henry Kenyon, dated 7th and 12th August 1833, and proved October 17th 1833, inasmuch as the validity of said alleged will and codicil was the primary and therefore the principal subject of dispute in this action, and the defendant had it within her power to cause the original papers referred to, which were in the register’s office of this county, to be produced.</p> <p>6. In admitting in evidence for the defendant, with the exemplification of the register of wills of Philadelphia county, of the said alleged will and codicil of Henry Kenyon, deceased, a certain other paper included in said exemplification, which purported to be a copy of a certain alleged probate of the said alleged will and codicil, which evidence was contained and included in the fourth bill of exceptions.</p> <p>7. In admitting as evidence “ the certificate of the register of wills that no caveat has been filed in the case of the alleged will and codicil, under which the defendant claims the premises in dispute,” which evidence was objected to by the counsel for the plaintiff as irrelevant to the subject-matters in dispute in this action, but admitted for the reason stated by the court, as follows : “ This is evidence under the Act of Assembly of 1856.”</p> <p>8. In admitting as evidence the exemplification from the Orphans’ Court of the proceedings in the Orphans’ Court in partition of the estate of Henry Kenyon, deceased, including the property in dispute, whereas the record itself might have been produced.</p> <p>9. In admitting as evidence the exemplification from the register of wills of Philadelphia county, of the letters of administration cum testamentum annexo (i. e. the alleged will and codicil of August 7th and August 12th 1833 respectively) of Henry Kenyon, deceased, to Joseph II. Ashbridge, inasmuch as the original letters of administration d. b. n. e. t. a. ought to have been produced.</p> <p>10. In refusing to admit in evidence the testimony of Abraham L. Pennock, and other witnesses offered by the plaintiff for the purpose of proving that Captain Kenyon, at the date of the alleged will and codicil under which defendant claimed, was incompetent’to make one; that the said alleged will and codicil was procured to be made by fraud and undue influence practised by Mary Ashbridge, under whom the defendant came into possession, or by her procurement, as set forth in the ninth bill of exceptions.</p> <p>11. In not admitting in evidence the record of the action of ejectment between Emma M. Kenyon and Mary Ashbridge, in this court, of July Term 1854, No. 102, which was offered by the plaintiff’s counsel for the purpose of showing that the said alleged will and codicil, under which the defendant claims, was in dispute in that cause, and that its validity had been contested by action at law, duly pursued by the plaintiff within the time prescribed by the 7th section of the Act of Assembly, approved April 22d 1856, entitled “ An Act for the greater certainty of title and more secure enjoyment of real estate,” and that said alleged will and codicil was in and by said action duly and finally determined to be invalid, as stated in the tenth bill of exceptions.</p> <p>12. In not admitting in evidence the depositions of Mary Jennings, Elizabeth Chase, Theresa Kern, and the notes of the testimony of Hannah M. Barber, deceased, taken in the case of E. M. Kenyon v. Mary Ashbridge, in this court, of July Term 1848, No. 100, it being admitted that the witnesses were dead, or out of the jurisdiction of the court, w'hich were offered by the counsel for the plaintiff', but objected to because not between the same parties, as stated in the eleventh bill of exceptions ; and</p> <p>13. In charging the jury that they should find a verdict for the defendant, upon the evidence of the said will and codicil alleged to have been made by Captain Kenyon, and proved October 17th 1833, and the title shown by the defendant thereunder, as stated in the twelfth bill of exceptions.</p>

<p>Error to tbe Common Pleas of Sehuyllcill county.</p> <p>This was an action of ejectment brought by John C. Conrad against John M. Shomo, for “ a house and lot of ground situate in the borough of Pottsville, bounded northwardly by a ten feet wide alley, eastwardly by a lot of Daniel Sheiffly, southwardly by Norwegian street, and westwardly by lot of Philip Hoffa, Benjamin Pott, and John Green, containing in width ninety feet, and in depth ninety feet more or less.” Issue was joined on the plea of not guilty.</p> <p>The material facts of the case were these,—</p> <p>On the 19th of May 1858, Daniel Sheiffly, who was the stepfather of John M. Shomo, sold to Catharine Ann Shomo, the wife of John M. Shomo, a lot of ground on Norwegian street, Pottsville (on which were two frame houses), for $1200; $100 was paid at the time of sale, and eleven promissory notes for $100 each were made by Catharine Ann Shomo, and given to Mr. Sheiffly for the balance; all of which were secured by a mortgage upon the premises, executed by John M. Shomo and Catharine Ann Shomo to Sheiffly. One of these promissory notes was subsequently paid. Sheiffly had a policy of insurance in the Lycoming County Insurance Co. upon the houses on the lot conveyed to Mrs. Shomo, and upon the house on the adjoining lot, which was also owned by him. A part of this policy, amounting to $600, was transferred by Sheiffly to Mrs. Shomo. On the 14th of August 1858, the houses on the lot conveyed to Mrs. Shomo were burned down, and -subsequently the insurance company paid over to her the insurance money, amounting to $600. With this money, and $400 additional, borrowed by her from Sheiffly, Mrs. Shomo erected a three-story brick house upon the lot of ground in question.</p> <p>On the-9th January 1860 a judgment was entered in the Court of Common Pleas of Schuylkill county for $379.26, in favour of Henry Womelsdorf, against John M. Shomo and Jerome Harner, late partners, on which a fi. fa. was issued, and the property in question levied on as the property of John M. Shomo, and condemned. A vend,, ex. was issued to June Term 1860, under which, on the 9th day of June 1860, the property was sold to John O. Conrad, the plaintiff, for the sum of $70. Conrad was also a judgment-creditor of John M. Shomo, and had a,fi.fa. in the hands of the sheriff at the time the property was levied on under the ft. fa. of Henry Womelsdorf. At the sheriff’s sale a notice, signed by Catharine Ann Shomo, was read, in which she notified bidders that she claimed the property as her own separate estate. The plaintiff brought this ejectment to recover possession of the premises from John M. Shomo, who at the trial set up the outstanding title in his wife as above recited. It was not proven that Mrs. Shomo ever had any separate estate. Her husband’s mother, Mrs. Sheiffly, testified that she gave her the $100 to pay the down-money to Sheiffly, and said also that she “had given her money afterwards, not a great deal; sometimes I gave her $10; I don’t know what she did with the money.” It was not shown that Mrs. Shomo ever received any money, except that from her mother-in-law, and the insurance money and loan from Sheiffly, before mentioned.</p> <p>It was contended at the trial, on the part of the plaintiff, that as John M. Shomo was liable and bound to pay the promissory notes given by his wife for the property, and as the wife could plead her coverture as a defence to an action upon them, that the law would treat the property as that of her husband. The learned judge who tried the cause refused so to instruct the jury, who found in favour of the defendant; which was the error assigned here.</p>

<p>Appeal from the Common Pleas of Schuyllcill county.</p> <p>This was an appeal by Zacharias Batdorff, from the decree of the court distributing the proceeds of the sheriff’s sale of the personal property of C. A. & Augustus M. Seltzer. The material facts of the case were these: — ■</p> <p>On the 22d day of June 1861, a testatum, execution issued out of the Common Pleas of Philadelphia, at the suit of D. Focht & Brother v. C. A. & Augustus M. Seltzer; and on the same day was placed in the hands of the sheriff of Schuylkill county. On the 24th day of the same month the sheriff made a levy on the personal property of the defendants. This execution was returnable on the 1st Monday of July, a. d. 1861, for $364.43.</p> <p>On the 5th of July 1861, a rule was obtained by the defendants, in the court having the control of the execution at Philadelphia, to show cause why the said execution should not be stayed according to the Act of the 21st May 1861, proceedings to stay in the meantime, returnable on Saturday, the 6th July 1861; on which day the court made the following record, to wit:—</p> <p>“ July 6th 1861, the case having been continued at the motion of the plaintiffs, it is ordered by the court that the testatum fieri facias issued in the case be stayed until the rule be disposed of.”</p> <p>October 26th 1861, the rule was discharged. Notice of these proceedings was duly served on the sheriff of Schuylkill county, and he did not sell the said personal property on this execution.</p> <p>On the 2d day of September 1861, three executions were issued out of the Court of Common Pleas of Schuylkill county, and were placed in the hands of the sheriff, with directions to make the money thereon. They were levied upon the same persona] property of C. A. & Augustus M. Seltzer. On the 28th of September 1861, the sheriff made return that he had sold the said property for the sum of $6731.20; not enough to discharge and pay the executions issued by Batdorff.</p> <p>The amount of the said estatum execution being claimed by both parties, it was paid into the Common Pleas of Schuylkill county, and upon a rule to show cause why the money in court should not be paid to the said D. Eocht & Brother, the said court, on the 8th day of March 1862, adjudged the money to D. Eocht & Brother*, on their execution; from which judgment Zacharias Batdorff entered this appeal.</p>

<p>Certiorari to Quarter Sessions of Schuylkill county.</p> <p>At June Sessions 1860, the following indictment was preferred against Robert Phillips: — “ The grand inquest inquiring, &c., do present: That by an act of the legislature of the commonwealth of Pennsylvania, approved the 19th day of January, A. D. 1860, ‘it is provided that the supervisor of the township of New Castle, in the county of Schuylkill, should let at public sale the making and repairing of the public roads in the said township to the lowest bidder in each year.’</p> <p>“ That on the 31st day of March, in the year aforesaid, a public sale of the public roads was in due form of law held in the said township by the supervisor thereof, and that one Robert Phillips, M. D., was the lowest bidder for making, repairing, and keeping in good order the public roads then laid out in the said township for the term of one year from the letting thereof as aforesaid; and the said Robert Phillips, M. D., then and there became bound to the said township of New Castle to keep all of the then existing public township roads and bridges, culverts, and railings in the said township in good repair and condition during the said term, and furnish the necessary tools and materials thereto, and do all such other duties that might be required to keep the said roads in good order during the said term, according to the said Act of Assembly of the 19tli of January, a. d. 1860, above recited.</p> <p>“And the grand inquest aforesaid, upon their oaths and affirmations aforesaid, further say, That although the said Robert Phillips, M. D., did become the purchaser of the said public roads aforesaid, and did enter into the contract aforesaid, yet he did not perform his duties required by the said contract, and did not keep the then existing public township roads and bridges, culverts and railings in good repair and condition. But his duty in that respect did wholly neglect.</p> <p>“By reason whereof, one then existing public township road leading through the said township from a public road near to the town of New Castle, in the said township, and extending up the south side of the Broad Mountain, in part upon the old bed of the ‘Pottsville and Danville Railroad,’ and continuing to the line of Rush township, of the distance of four miles, and of the breadth of thirty-three feet in the said township of New Castle and county of Schuylkill, became so decayed, and still is so decayed and out of repair for want of repairing the same, that the citizens of this commonwealth, by, through, and upon the same road and public highway, going, passing, and travelling, cannot, with their horses, carts, and carriages, by, through, and upon the same road and highway, so safely go, pass, and travel, as of right they ought; to the great damage of the said citizens, contrary to the form of the Act of General Assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania.</p> <p>“ Howell Fisher, District Attorney.”</p> <p>No objection was made to the indictment until after,the trial, which resulted in a verdict of guilty, and a sentence to pay a fine of $20 and the costs of prosecution.</p> <p>The material facts of the case were these: — In March 1860 the supervisor of the township of New Castle, in said county, under an Act of Assembly, approved January 19th 1860, authorizing the supervisor of certain townships therein named to let the making of the roads at public sale to the lowest bidder, let the roads in that township to the defendant.</p> <p>About two months afterwards he was indicted as above stated, found guilty, and sentenced to pay a fine of $20 and the costs of prosecution.</p> <p>There was a motion for a new trial, based on the following exceptions:—</p> <p>1. The indictment is against a private citizen for neglecting to repair public roads in New Castle township, in Schuylkill county, which it is charged it was his duty to do, as the contractor to keep the same in repair, under the provisions of an alleged Act of Assembly, that makes it a criminal offence for such contractor to neglect to repair said roads, or if there be any such Act of Assembly it is not set forth in said indictment. There is an Act of Assembly of the date of that stated in the indictment referring to supervisors and contractors of repairs of roads in said township, but such act does not make the non-repair of such roads by the contractor an indictable offence.</p> <p>2. The indictment is for an offence for which a private citizen was not indictable at common law; and there is no public statute making a contractor for the repair of roads indictable, and if there be any statute referring to a contractor in New Castle township, it is not sufficiently pleaded and set out in the indictment, and an Act of Assembly making it indictable for neglect in a contractor of roads in New Castle township to repair the same, while it is not made so indictable elsewhere, would be unconstitutional.</p> <p>The motion was overruled, not because the indictment was not defective, but because the objections were not made until after verdict — the court holding also that the neglect of the contractor was a misdemeanor, for which he might be indicted.</p> <p>This writ was then sued out by defendant as above stated.</p>

<p>Error to the Common Pleas of Delaware county.</p> <p>This was an amicable action in the nature of an interpleader, in which Nathan Lukens was plaintiff, and Thomas J. Reed defendant, under the following agreement of counsel:—</p> <p>“It is agreed that an amicable action in the above form be entered in the Common Pleas of Delaware county, to try the right to the sum of $900 in the hands of the Delaware County Mutual Insurance Company, and due from them to the said Thomas J. Reed, or his assignee, Nathan Lukens, on account of the destruction of Reed’s barn by fire; the said Lukens claiming the whole thereof, and the said Reed admitting Lukens’s claim to the $300 only, and claiming the balance himself; the question being which of them is entitled to the $600. It is agreed to try the question upon this agreement without any other pleadings, and if it shall be determined that the plaintiff is entitled to said sum of $600, the verdict and judgment shall be in his favour, and if the defendant shall be so entitled, the verdict and judgment shall he in his favour, the costs to abide the event.”</p> <p>Ail the material facts of the case will bo found in the following opinion of the learned court below (Butler, J.):—</p> <p>“ It appears from the evidence that Thomas J. Reed, the defendant, was the owner of a farm in Delaware county, the buildings on which he had insured in the Delaware County Mutual Insurance Company, to the amount of $3150 — $900 of which was on the barn; that on the 25th day-of January 1862, he entered into a written contract with Nathan Lukens, the plaintiff) whereby he sold the property to Nathan Lukens, for the sum of $12,825, and undertook to make and deliver to him a deed for it on the 2d day of April following. After the execution of the contract of sale, and before the time appointed for the delivery of the deed, the barn was destroyed by fire. On the 2d day of April, the parties met to carry out the provisions of the contract. The property, from the records, appeared to be encumbered, and Mr. Reed was not tíren prepared to have it released. On the face of the policy of insurance, the barn appeared to be insured for but $300 ; and while Mr. Reed seemed to think this was a mistake, as the sum was much less than the loss sustained by the fire, it was regarded by the parties as the amount insured upon that building. After considerable effort to make things satisfactory in view of existing encumbrances, it was agreed that $60 should be abated from the contract price of the property, and it should be taken with the encumbrances unsatisfied, the vendee holding the indemnifying bond of the vendor, and receiving a transfer of the policy of insurance. A doubt subsequently arising in the minds of the counsel of the respective parties, whether this transfer of the policy might not be understood to have exclusive reference to future losses, a second assignment was executed, transferring to the vendee the vendor’s ‘right, title, and interest in and to a certain claim of $300 I (the vendor) have against the Delaware County Insurance Company,’ arising from the loss of the barn. The amount insured on the barn, it is agreed, was $900, and the company acknowledges itself liable for this sum, although the amount was erroneously inserted in the policy as $300. The company has paid $300 to the plaintiff. Is he entitled to receive the remaining $600, or does it belong to the defendant ? This is a question for the court. The rights of the parties must be determined from the papers (the contract of sale and assignment) referred to, and there is therefore nothing for the consideration of the jury.</p> <p>“ On the execution of the contract of sale, the plaintiff became, in equity, the owner of the property — the defendant holding it thereafter as his trustee, with a right to retain it until the purchase-money should be paid. Whatever advantage might thereafter arise to it would be the plaintiff’s, and whatever loss might befall it, he must sustain; the defendant had no further interest in it, except as a security for the purchase-money ; he would neither lose nor gain by any change which might occur to it: Siter, James & Co.’s Appeal, 2 Casey. When, therefore, the barn was burned, it was the plaintiff’s property that was destroyed; defendant lost nothing ; the plaintiff was still obliged to take the property and pay the purchase-money. The insurance company, however, became liable to pay for the loss to the defendant, because, as is said in Updegraff v. Insurance Co., 9 Harris 513, he, as respects third persons, not privy to the contract of sale, is still to be regarded as the owner of the property. But as between himself and the plaintiff, the property was not his, but the plaintiff’s; he could not appropriate to himself the money which the insurance company became liable to pay on that account; he had the property in trust, and the right which accrued in consequence of its destruction, took its place, was held in the same way, and liable to be enforced in a court of equity. This would seem to be the plain result of the principles governing the relations between these parties, established by the contract of sale. Did the subsequent conduct of the parties (on the 2d day of April) affect their rights in this respect ? We think not. The original contract was not annulled ; the parties stood upon it, and substantially carried it out: the conveyance was made in pursuance of it — the plaintiff yielding nothing but the right to have the property unencumbered, and the defendant abating $60 of the purchase-money. It was, of course, competent for the parties to agree that the defendant should have a part of the money due on account of injury to the property, but there is no evidence of such an agreement. On the contrary, the defendant executed a written assignment on the policy, transferring ‘ all his right, title, and interest in the policy of insurance, and all benefit and advantage to be derived therefrom,’ to the plaintiff. If the plaintiff had not been before entitled to the money, he would have become so on the execution of this assignment. No claim existed against the company, except by virtue of the policy; no suit could he sustained for the loss, except on the contract which it constituted. This assignment transferred all possible interest in this contract, and all benefit and advantage to be derived therefrom. Such a transfer necessarily included as well the money then due on the policy, as what might thereafter accrue. If authority for what seems to be so plain a principle is wanted, it may be found in Goit v. Insurance Co., 25 Barb. (N. Y.) 189. The second assignment had not, in our judgment, any effect whatever on the rights of the parties ; it was an afterthought, designed to avoid misconstruction of the assignment already made. The defendant’s counsel testifies that it was suggested to him by the plaintiff’s counsel, ‘ whether, for the loss which had occurred, there should not be a separate transfer — whether the transfer' on the policy might not only be regarded as relating to the future; I said to him the same thing had been running in my mind, and I then made the one which has been exhibited.’ This explains how the second assignment came to be made. It was, we repeat, in our judgment, without any effect upon the rights of the parties. Its description of the claims for the loss, as $300, is regarded as of no consequence; it furnishes additional evidence that the parties were in error in regard to the extent of the company’s liability; but this error, it must be seen, is immaterial in the view we take of the case.</p> <p>“Judgment is therefore ordered to be entered for the plaintiff for $600, with costs.”</p> <p>Under these instructions, there was a verdict and judgment in favour of plaintiff for $600; whereupon the defendant sued out this writ, and averred here,</p> <p>1. The court erred in charging that there was no fact to be submitted to the jury.</p> <p>2. The court erred in directing judgment to be entered upon the verdict for the plaintiff.</p>

<p>Error to the Common Pleas of Sehuyllcill county.</p> <p>This was an action of trespass vi et armis de bonis asportavit, brought in the court below, by John C. Harper against Jacob Huntzinger, Jr., for taking away ten barrels of oil, claimed by the plaintiff.</p> <p>All the material facts of the case, together with the errors assigned to the admission and rejection of evidence, and the charge of the court below (Parry, J.) (under which there was a verdict and judgment for plaintiff), are fully stated in the opinion of this court.</p>

<p> __Debtor’s Exemption may be claimed against an Attachment Execution. </p> <p>1. A debtor may claim the benefit of his statutory exemption against an attachment in execution.</p> <p>2. But he must make his claim within a reasonable time after the issue of the attachment in execution process; it is too late if made by plea to the scire facias.</p> <p>Strouse’s Executor v. Becker, 2 Wright 190, affirmed.</p>

<p>Criminal paw. — Pardon not valid until Delivery.— Void on account of Fraud in obtaining it.</p> <p>1. A pardon is an act of mere grace, and is not founded on any preliminary steps that furnish legal merits or a legal title.</p> <p>2. The intention of the executive to grant a pardon can have no legal force until carried into completed act. The completed act is the charter of pardon delivered.</p> <p>3. By usage, the delivery of a pardon to the warden of a prison is primd facie equivalent to delivery, or is a constructive delivery to the prisoner, but it may be proved no delivery by circumstances that are inconsistent with the intention to deliver it.</p> <p>4. A pardon procured by false and forged representations and papers is void.</p> <p>5. AVhere on the faith of a forged letter from the War Department, asking for a pardon, and stating that the prisoner was wanted for secret public service, a pardon was executed by the governor and put into the hands of the United States marshal, to be delivered to the prisoner on his performance of the sei-vice, and by the marshal delivered to the warden of the prison in order to obtain the release of the prisoner, Held, that this was not a delivery to the prisoner, notwithstanding the custom in Pennsylvania to deliver pardons to the warden of the prison to keep as his voucher.</p> <p>6. Even had this been a delivery, the fraud in obtaining the pardon would have avoided it, although it was not shown that the prisoner had any hand in perpetrating the fraud.</p> <p>7. Whether the statute 27 Edw. 3, c. 2, is in force in Pennsylvania, quaere ?</p>

<p>Error to the Common Pleas of Montgomery county.</p> <p>This was an action of replevin, brought April 18th 1861, by Michael C. Boyer against Wallace Henderson, executor, &c., of Margaretta Henderson, deceased. The case was this:—</p> <p>Davis Henderson died intestate on the 11th day of May 1848, leaving a widow, the said Margaretta B. Henderson, and issue eight children, and seised in fee, among other real estate, of a marble quarry and seventeen acres of land, which was valued by an inquest at $12,000, and was taken by one of the heirs at that sum. The Orphans’ Court, in decreeing the same to said heir, ordered, in the usual form, $4000 to remain in said premises, the interest of which was to be paid to the said Margaretta B. Henderson during her natural life, on the 1st day of April of each year. These payments were made to her regularly down to April 1st 1860. On the 20th day of January, a. d. 1861, she died, so that the sum of $194 had accrued, and was due and payable at the time of her decease. In order to collect this sum, her executor, on the 6th of April 1861, issued a warrant of distress, in the usual form, against the goods of the said Michael O. Boyer, on said premises, who was at the time, and had been since the 20th of October 1860, the owner in fee simple of' the said premises. By virtue of this distress, sufficient goods belonging to Boyer on said premises to pay the said $194, were distrained upon. Boyer then issued a replevin for the goods, and on these facts the case was tried. The court below (Chapman, J.) instructed the jury as follows :—</p> <p>“ The facts in this case having been agreed upon by the respective counsel, the case turns upon the question, whether the defendant had a right to issue a warrant of distress for the widow’s interest under the circumstances. This is a question of law, and the court are of opinion with the plaintiff. You are therefore directed to find a verdict in his favour. He claims merely nominal damages, and your verdict will not be for more.”</p> <p>The case was thereupon removed into this court, where the ruling of the court below was assigned for error.</p>

<p> Power of Mamed Woman to convey or encumber her separate Real Estate. </p> <p>1. The rule in Pennsylvania, before and since the Act of 1848, in reference to real estate held by a married woman to her sole and separate use with or without a trustee, is that she cannot convey or mortgage it during the life time of her husband, unless that power was expressly given by the instrument under which she acquired her title.</p> <p>2. Haines v. Bilis, 12 Harris 253, overruled.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of covenant brought in the name of David W. Mills, to the use of the Mechanics’ Bank of Williamsburg, against the Philadelphia Fire and Life Insurance Company, on a policy of insurance issued by defendant to William T. Mills, dated' October 21st 1856, for one year, on an omnibus establishment in West Philadelphia.</p> <p>■ The material facts of the case were these:—</p> <p>On the 12th of September 1856, Buchanan & Stevens, former owners of the establishment, and who had sold it to William T. Mills, brought suit against him in the District Court.</p> <p>On the 21st day of October 1856, William T. Mills renewed an insurance with the defendant for one year, covering the frame stable and stock generally of plaintiff in the Twenty-Fourth ward, on the east side of Till street, north of Market. This policy contained the following condition :—</p> <p>“ The insurance by this policy shall cease from the time that the property hereby insured shall be levied on or taken into possession or custody under an execution or other proceeding at law or equity-”</p> <p>On the 28th of October 1856, Buchanan & Stevens recovered judgment against Mills for $26,268.50. On the 8th of November Í856¿ the insured property was by bill of sale transferred by William T. Mills to David W. Mills, for the consideration of $40,000. There was no evidence in the case tending to show that D. W. Mills ivas at that time the owner of so large a sum of money, the proof ivas that he was acting as clerk for his father at $10 a week, and that no money passed at the execution of the bill of sale, but possession was taken by him under this sale. On the 10th of November 1856, Buchanan & Stevens sued out an execution against William T. Mills. On the 15th of November 1856, the policy ivas assigned to David W. Mills, son of William T. Mills.</p> <p>On the morning of the 23d of December 1856, the property insured being in the possession of the Avatchman appointed by the sheriff under the above execution, Avas almost entirely destroyed by fire. The watchman had been sent there about a week before the fire.</p> <p>The sheriff made the folloAving return to the execution:—</p> <p>“ To the Honourable Judges, &c., I do hereby certify and return, that in obedience to the Avithin writ, I levied upon the personal property of defendant, November 10th 1856. On the morning of the 23d day of December 1856, portion of said property was destroyed by fire, and sold the balance of said property on the 14th day of January 1857, for the sum of $2223.35. Previous to said fire a claim to said property \Aras made by David W. Mills, and he having failed to enter bonds in court according to law, the same was sold as above.”</p> <p>There Avere several matters of defence set up on the trial, but the main point relied on was, that as the property insured was levied upon under an execution after the issuing of the policy, and so continued at the time of the fire, the insurance ceased under the terms of the policy, as above stated.</p> <p>The court below (Shauswood, J.) instructed the jury on this point that, as the execution Avas against the father after a sale and delivery of possession to the son, the levy made under it was a wrongful levy, and that if the sale Avas bond fide, and the levy consequently wrongful, it should not be regarded as a breach of the covenant in the policy. But that if the sale was not bond fide, if it left the property in the father, and the son acquired none, but the transaction Avas intended to hinder and delay the creditors, then the levy would be such a one as the creditors had a right to make — srich a one as was contemplated in the policy, and such a one as Avould avoid it.</p> <p>There Avas a verdict and judgment for plaintiff; whereupon the defendant sued out this writ, and assigned the ruling of the court on this and the other points which were propounded, for error.</p>

<p>Widow’s Statutory Allowance of $300, Lien on Lands of Decedent. — ■ Power of Orphans’ Court to enforce Payment thereof out of Lands houncl hy it. — Lyman’s Administrator v. Byam and Wife, 2 Wright 475, affirmed.</p> <p>1. The balance of the statutory allowance to a widow, remaining after her selection and appraisement of personalty, and elected by her to be taken in' real estate, becomes, after the confirmation of the report of the appraisers that the land cannot be so divided without injury, a charge upon it; and she may recover the amount from the alienees of the acceptors of the land in partition.</p> <p>2. The remainder of the $300, after the widow’s selection of personalty, was strictly a charge to be paid out of the lands of the decedent, and as such followed them into the hands of the purchasers, who, buying from heirs, had notice of every statutory charge.</p> <p>3. The Orphans’ Court has power to enforce payment of the sum charged by a decree that it be made by sale, out of the lands bound by it, in default of payment of the several amounts decreed against the purchasers in proportion to the valuation, made by the inquest, of the lots bought by them.</p>

<p>Appeal from the Common Pleas of Philadelphia county.</p> <p>This was an appeal by Benjamin Chew from the decree of the court below, made on the 22d November 1862, awarding an attachment against him for the non-performance of an order of the court, made on the 25th of September 1858, directing him to pay over to Henry B. Chew and James M. Mason, executors of Benjamin Chew, deceased, or their attorney, the sum of $1382.20, being their distributive portion of the balance in his hands as their trustee.</p> <p>In answer to a rule to show cause why an attachment should not be awarded for non-payment of the money to Henry B. Chew, as sole surviving executor, Benjamin Chew, the respondent, presented an affidavit setting forth — 1. That the order served on him was to pay the amount of the decree to Henry B. Chew and James M. Mason; that the said James M. Mason hath been dismissed from his office of executor of B. Chew, deceased, and no order hath been made for payment of the decree to the said Henry B. Chew alone. 2. That the said Henry B. Chew is a citizen and resident of the state of Maryland, and by order of this court gave security in $50,000, as a non-resident executor; that both of his sureties are deceased, and an application is now pending before this court for further security; and this respondent ought not to be compelled to pay the amount of the decree to the said Henry B. Chew, until such security is given. 3. That the said Henry B. Chew has in his possession upwards of $30,000 of this deponent’s share of his father’s estate, which he refuses to pay over, under the false and fraudulent pretext that deponent has forfeited his right thereto ; that this court has decided that no such forfeiture has been incurred, from which decree the said Henry B. Chew has appealed, with security in $100 only, and this deponent is advised and insists that he ought not to be compelled to pay over the sum decreed to the said. Henry B. Chew, whilst the latter has so large a sum of deponent’s money in his hands without security. 4. That said Henry B. Chew has filed no account since the year 1853, and proceedings are now pending against him to compel him to account for the assets of the estate of B. Chew, deceased, in his hands. The respondent also contended that inasmuch as the decree was for the payment of money only, the court had no power to enforce it against him by process of attachment.</p> <p>The court below made the rule absolute, and awarded the attachment; whereupon the respondent took this appeal, averring that the court below erred in awarding an attachment against him.</p>

<p>Defendant in Attachment a competent Witness for Garnishee.— Talidity of Bank Deposit made by Agent of several Principals.</p> <p>1. In an issue under attachment-execution process, the defendant in the original judgment is a competent witness for the garnishee.</p> <p>2. Money belonging to different persons may be included in one agency bank account, though there be no mark to determine that ownership, and the officers of the bank where it was attached as the individual property of the agent, had no other knowledge of the ownership than the addition of the word “ agent” to the defendant’s name in the account.</p>

<p>Error, to the Common Pleas of Schuylkill county.</p> <p>This was a writ of error, sued out by John Horton and Henry Heil, to reverse the decree of the court below, discharging a rule which had been granted on their motion to show why a certain judgment held by John Miller, Jr., against John Horton and Henry Heil should not be defalked from a judgment of Roger H. F. Horton against John Miller, Jr., part of which John Horton claimed as assignee.</p> <p>The case was this: — John Miller, Jr., brought suit November 25th 1858, to No. 642, December Term 1858, against Horton and Heil, upon an insolvent bond, given by Horton with Heil as his surety, to appear and take the benefit of the Insolvent Law. Horton did not appear or comply with the condition of his bond to take the Insolvent Law. December 20th 1858, plaintiff filed his determination to have arbitrators chosen at 10 o’clock A. M., January 12th 1859. January 12th 1859, arbitrators were chosen to meet 25th of same month, at 10 a. m. January 25th 1859, arbitrators awarded for the plaintiff, finding in his favour $179.34. February 16th 1859, defendants, by John Horton, appealed from the award of arbitrators. Cause came on for trial in court February 7th 1860; when judgment was 'entered in favour of plaintiff for $187.71. January 12th 1859, James H. Campbell, attorney for Miller, the plaintiff, suggested upon the record that all money due and to become due on the bond in this case, had been assigned to Charles W. Reed, of Carlisle. On the 30th of January 1858, Roger H. F. Horton brought suit in the Common Pleas of Schuylkill county, to No. 417, March Term 1858, summons in ease against John Millef, Jr., to recover a book account he held against him, and also for a large quantity of coal which Miller had sold while he wa.s in the employ of Horton, and appropriated the proceeds thereof to his own use, as Horton alleged, without his knowledge or consent. February 8th 1858, the attorney for Horton filed his determination to have arbitrators chosen on the 24th of same month, at 10 o’clock A. M. February 24th 1858, arbitrators were appointed to meet March 23d 1858, at 10 o’clock A. M. May 20th 1858 award of arbitrators filed, finding for plaintiff $678.18. June 8th 1858, defendant, by James H. Campbell, his attorney, appealed from the award of arbitrators. February 19th 1859, the cause came on for trial in court, when the jury found in favour of-the plaintiff Horton $696.30. On February 17th 1859, a suggestion was made upon the record by J. Wright, Esq., the attorney for the plaintiff, that $220 of this judgment was assigned by verbal agreement by Roger H. F. 'Horton to John Horton, between the 2d and 12th days of December 1857. June 3d 1861, J. Wright, Esq., moved the court, as attorney for John Horton, upon petition and affidavit presented, to grant a rule on John Miller, Jr., to show cause why the amount of judgment, interest, and costs in judgment No. 642, December Term 1858, John Miller, Jr., against John Horton and Henry Heil, should not be defalked from judgment No. 417, March Term 1858, Roger H. F. Horton against John Miller, Jr., for $696.30, $220 of which judgment John Horton is the assignee, sufficient to satisfy debt, interest, and costs. Same day rule granted. On the 29th November 1862, the case was argued upon the law and the facts, and submitted to the court, and on the same day the rule was discharged by the court, and on 23d December 1862, this- writ of error was taken out and filed.</p>

<p>Insurance Companies. — Authority of heal Agent, to waive Condition in Policy.— The existence of Authority and Waiver are for the Jury.— Statement, of Loss by Fire, ivhat is sufficient.— Waiver of Forfeiture by Non-payment. — Declaration averring Performance of all Covenants may be amended to meet Proof of Waiver.</p> <p>1. If an insurance company, on notice of loss, refer the insured to their resident agent for settlement, and instruct the agent to procure a statement of the loss, he is thereby invested with full authority to receive, and extend the time for furnishing it: and if given within the time required by the agent, though after thirty days from the fire, the condition in the policy requiring it to be made within that time is not broken.</p> <p>12. Where there was any evidence as to the authority given to the agent by the company to act in the premises, and of an actual waiver of condition on the part of the agent, it was for the jury; and though a waiver must be intentional and clearly proven, the sufficiency the evidence relating thereto is for the jury, whose error in judgment thereon can be corrected only by motion for new trial.</p> <p>3. In an insurance of a single property (a coal-breaker) under a valued policy, where the insured, immediately after its destruction by fire, wrote to the company, stating that his “ coal-breaker burnt down this morning,” giving the number of his policy and the amount of his insurance; such a statement of loss, though in the preliminary notice, was substantially a particular statement, and a compliance with the condition requiring it.</p> <p>4. Where, under a condition requiring payment of assessments within thirty days from demand and avoiding the policy until paid, a balance remained unpaid beyond that time and on the day of the fire, but was paid the same day to the agent and by him reported to the company, without objection on the part of either of them, such receipt is a waiver of the forfeiture ; and that breach of condition cannot be set up against recovery on the policy.</p> <p>6. It is not a bar to a recovery on the ground of waiver, that the declaration averred a performance of all conditions precedent, and the proof was of a dispensation with and waiver of performance, for the defect was amendable as matter of right; and after verdict, especially where the case was tried as if there had been no omission, the narr. will be treated as if amended.</p>

<p>Writ of Estr&p&ment to prevent Waste on leased Lands, when and how allowed.— When and under what circumstances refused.</p> <p>1. Under Act of Assembly of March 29th 1822, to prevent waste on leased lands or tenements, an application for a writ of estrepement may be made during the continuance of the lease, without previous notice to leave the demised premises.</p> <p>2. But whore a lease was for coal-mining purposes, and the waste complained of was the “ mining of coal without payment of the rent; the erection of houses on the land: driving faults on different tracts without the knowledge of the heirs of the lessor, and with rents which should have been paid to themand other acts, none of which were injurious to the premises or unwarranted by the lease; no sufficient ground for awarding a writ of estrepement was laid, and it was error to award it.</p>

<p>ERROR, to the Common Pleas of Schuylkill county.</p> <p>This was an action of covenant by Godfrey Schreffler against the Lycoming County Mutual Insurance Company.</p> <p>The case was tried in the Common Pleas, in 1858,' at which time there was a verdict and judgment for plaintiff, which, on error, was reversed in this court, and a venire de novo awarded. (See 6 Wright 188.) For the facts of the case the reader is referred to that report.</p> <p>On the second trial, the defendants submitted the following points, on which the court were requested to instruct the jury :—</p> <p>1. The plaintiff cannot recover in this case because the action is in his own name in covenant.</p> <p>2. Because the plaintiff did not give notice forthwith to the secretary of the company of the loss or damage by the fire, if, as testified to by Darius Schreffler, the fire occurred on the night of the 13th of April, and it appearing that the notice of the fire was not mailed until the 19th of April.</p> <p>3. Because, if the jury believe the plaintiff represented to three witnesses that his books were saved from the fire, and, as he now alleges, all were destroyed except the blotter, and if it be true they were saved, and they were and are concealed, this is a fraud which forfeits all claim. If they were destroyed, and he fraudulently represented they were saved, this also avoids the policy.</p> <p>4. If-the jury believe that the agent, Hazen, as testified to by him,' had no authority to act in the case until August 1858, no previous act of his could amount to a waiver of the conditions of the policy.</p> <p>5. Neither the investigation of the facts by the agent Shindel, nor'the statement and affidavit in Shindel’s handwriting, given in evidence by plaintiff under exception by defendant, amount to any waiver of conditions of the policy.</p> <p>6. The plaintiff cannot recover on the ground of waiver of the conditions of the policy (if anjr waiver took place), because the narr. filed avers a performance of all conditions precedent, and avers no waiver by the defendant or other excuse for nonperformance of conditions precedept.</p> <p>7. That if Godfrey Schreffler had $1000 worth of silks and laces at the time of the fire, as.Jacob A. Hazen testifies that Schreffler told him he had, or even a much less quantity, and if they were not destroyed by the fire, nor credit given by him as having been saved, such concealment would be a fraud, and defeat the right of the plaintiff to recover in this suit.</p> <p>8. That if the jury believe, as testified by Peter K. Ludwig, and as stated by plaintiff to Jacob A. Hazen, that he had a considerable quantity of silks and laces at the time of the fire, and as in the detailed statement of loss first furnished by plaintiff to the company, he makes no claims for loss of such silks and laces, the jury must infer that such silks and laces were saved from the fire ; and as no credit is given for the same as saved in the statement rendered to the company, it is a fraud, and the plaintiff cannot recover.</p> <p>. 9. That if goods had been removed to Ashland, and not accounted for in the detailed statement of loss, such concealment is a fraud, and the plaintiff cannot recover.</p> <p>The court answered these points as follows:—</p> <p>i! 1. If the jury believe, from all the evidence in this case, that G. II. Potts sold the stock of goods covered by the policy of insurance, and assigned the policy, with the assent of an agent of the company, to the plaintiff, and that the company took from him a premium note, and charged him with and collected from him assessments on such premium note, as a member of the company insured under the policy, he was, by such acts of the company, by force of the provisions of the Acts of Assembly incorporating the company, substituted in the place of the original insured, and entitled to all the rights and privileges, and was subject to all the liabilities to which the original party was liable, and having such rights and being subject to such liabilities, the plaintiff can maintain an action of covenant in his own name against the defendant for a breach of the covenants of the policy.</p> <p>“ 2. The jury are to determine, under all the evidence in the case, whether the notice of loss by fire was given in due time within the meaning of the term forthwith. And if the jury believe, from the evidence, that the company received the notice of the loss, and acted upon it as if received in due time (and made no objection up to the time of the trial, that the five days was too great a lapse of time), and that afterwards they directed Mr. Shindel, their agent, to investigate the loss, and after that directed Mr. Hazen, another agent, to obtain an offer of compromise from the plaintiff, the notice may be taken by the jury to be within due time and a sufficient compliance with the requisition of the term forthwith in the policy.</p> <p>“3. If the jury believe that the plaintiff intentionally made any false representation whatever to the company or to their agents authorized to investigate the loss in reference to the saving or destruction of his books, it was a fraud upon the company, and will bar his recovery in this suit; and if the jury believe that the plaintiff saved his books from the fire, and conceals the same, and falsely alleges on this trial that they were destroyed by the fire, such concealment and false allegations would be a fact to be taken into consideration by the jury, with the other evidence in the case, in determining the truth of the allegation of the defendants that the plaintiff had made a fraudulent claim, as a fact tending to prove such allegation.</p> <p>“ 4. This point is affirmed.</p> <p>“ 5. The effect of the acts of the agent, Mr. Shindel, upon the notice of loss, has been stated in the answer to the second point, and that is the only condition of the policy to which the court can see the application of this proposition, and to which it has been applied by the counsel, and the court refer the jury to the answer of the third point, as the answer to this.</p> <p>“ 6. If the jury believe that the plaintiff, under the evidence, has not performed the conditions precedent, then this proposition will apply to such a state of facts, and as a proposition of law it is affirmed.</p> <p>“ 7. If the jury believe that the plaintiff had silks or property of any kind that were covered by the policy in the store at the time of the fire, and intentionally.made any false statement to the agent of the company respecting the quantity saved or lost, or intentionally concealed any goods that had been saved from the fire, from the knowledge or inspection of the agents of the company, such false statement or concealment would be a fraud, and prevent the plaintiff from recovering in this suit.</p> <p>“ 8. The jury are to decide, under all the evidence in the case, whether the plaintiff made any statement to the company or their agents, with intent to deceive them as to the amount of his loss; but the fact that the plaintiff, omitted from the statement goods that were in the store at the time of the fire, alone, will not authorize the court to say that the jury must 'infer that such goods were saved from the fire; and if no credit is given for them in the statement rendered to the company by the plaintiff, it is a fraud, and the plaintiff cannot recover. The jury must decide, upon the whole evidence in the case, whether such omission was intentionally made- for the purpose of deceiving the company.</p> <p>“ 9. If any goods were removed to Ashland, and omitted from the statement, and not accounted for in it, with intent to deceive the company with reference to the extent of the loss, it is a fraud that will bar the recovery of the plaintiff in this ease.”</p> <p>Under these instructions there was a verdict and judgment in favour of the plaintiff; whereupon the defendant sued out this writ. The errors assigned are sufficiently stated in the opinion of this court.</p>

<p>Appeal from the Common Pleas of Chester county.</p> <p>This was an appeal by Mrs. Baily from the decree of the court below dissolving the marriage between her and her husband, John P. Baily, on his bill charging her with malicious desertion and absence without just cause, &e., from the 12th of September 1851 until July 13th 1861, when the petition was filed.</p> <p>The subpoena was duly served on her, but she made no resistance to the application or the decree, which was made November 30th 1861. On the 2d of July 1862, Mrs. Baily brought an action against her husband for certain articles of personal property which she alleged belonged to her, having been given to her by her father when she commenced housekeeping, in 1845.</p> <p>On this suit she recovered judgment by award of arbitrators for $125, which was not appealed from.</p> <p>When the appeal from the decree of divorce was reached in this court, the appellee, Mr. Baily, was allowed to plead, in bar of the errors assigned, the record of this action of replevin; to which the appellant demurred; and the question was as to the effect of this assertion of right on the part of the appellant under the decree, and the recovery thereon, upon her attempt to invalidate it on appeal to this court.</p>

<p>Certiorari to the Quarter Sessions of Montgomery county.</p> <p>There is an Act of Assembly in force in Montgomery county relative to the laying out and opening of public roads, which provides that “before any view in any of the cases above mentioned, public notice shall be given in at least two newspapers published in the county of Montgomery, for two successive weeks, of the time and place of meeting, signed by the viewers so appointed, in papers nearest the road.”</p> <p>At a Court of Quarter Sessions held May 21st 1861, the petition of fifteen inhabitants of the township of Franconia and parts adjacent in said county, was presented, asking for the appointment of viewers to lay out a road through lands of Jacob Kratz and others. On this petition a jury were appointed, who made a report laying out a road for public use, in which they stated that they gave public notice in two newspapers published in said county nearest the road, of the time and place of meeting ; but there was no proof of publication, or affidavit, or printed slip of public notice of the view, as required by law and the rules of the court.</p> <p>To this report exceptions were filed by Mr. Kratz and Daniel Gerhard, over whose lands the road wras laid out. On the hearing, it appeared that the notices were published in German newspapers printed in Montgomery county nearest the road, which it was contended in the court below was not a compliance with the Act of Assembly.</p> <p>This exception was not sustained by the court, but, with other exceptions, was overruled, and the report of the jurors confirmed according to lawn</p> <p>This writ was then sued out by Jacob Kratz, by whom the confirmation of the report of viewers was assigned for error.</p> <p>The main question in this court was whether publication in German newspapers was a compliance with the Act of Assembly.</p>

<p>Construction of Deed.— Creation of Life Estate in Personal Property.— “ Legal Representatives” and “ Executors and Administrators,” when convertible Terms.</p> <p>1. A deed conveying personal property to trustees, for the benefit of a married woman, in trust to receive and pay over to her separate use the annual income during her life, with power of appointment in her at her death ; and in default of appointment, to hold for the use and benefit of such persons as would have boon entitled to the same at her decease, “ as her legal representatives, had she died a widow, under and by virtue of the intestate laws,” is to be construed as giving a life estate to the wife, with power of appointment at her decease; in default of appointment, the trust property to go to her next of kin under the intestate laws; and therefore she is not entitled, at the death of her husband, and being without children or issue living, to an absolute conveyance of the property from her trustees.</p> <p>2. But where by another deed the husband and wife granted to the same trustees real and personal property, to hold in trust for her separate use for life, with power of appointment at her decease, and in default thereof, to grant and convey “ to such person and persons” as “ shall and may be her heirs and legal representatives,” it was held, that the words “ legal representatives” wore equivalent to “ executors and administrators,” and that, as the word “heirs” gave her an absolute estate in foe simple in the realty, the trustees wore bound to convey to her, as the absolute owner, all the estate embraced in the deed of trust.</p>

This was a scire facias sur recognisance of bail, by Lewis McAfee, to the use of Jacob Shelly, against Lawrence E. Corson and Joel W. Andrews. The material facts of the case are as follows: — Lewis McAfee, in April 1858, brought suit against Jacob L. Paxson, to May Term 1858, No. 115, and filed his narr. April 29th 1858, in which a due-bill purporting to have been signed by Jacob L. Paxson is set forth as the cause of action.

<p>Error, to the District Court of Philadelphia.</p> <p>This was an action on the case by Henry E. Wallace, receiver, appointed by the Court of Common Pleas, in the matter of the partnership of John W. Yeager, Jr., and Abraham De Hart, late partners trading under the name, style, and firm of Yeager & De Hart; against John W. Yeager.</p> <p>The plaintiff declared in trover and conversion for a quantity of marble, consisting of headstones, foot-stones, monuments, vases, &e., of the value of $2000, the property of the firm of Yeager & De Hart, and by defendant converted to his own use, to which the defendant pleaded not guilty. There was a verdict and judgment for plaintiffs.</p> <p>All the material facts of the case, and the matters assigned for error, are fully stated in the opinion of this court.</p>

<p>Certificate from the Court at Nisi Prius.</p> <p>This was an amicable action, entered December 29th 1862, between John II. Curtis and John II. Curtis, Jr., as plaintiffs, and Joseph O. Longstreth as defendant, in which the following case was stated for the opinion of the court:—</p> <p>Captain Malcolm McNeran being seised in fee simple of the two pieces of real estate in the city of Philadelphia, hereinafter mentioned (the one in which he resided being on the west side of Front street), died, having first made his last will and testament, which was duly admitted to probate in the office of the register of wills for the county of Philadelphia, November 4th 1834, wherein and whereby he devised (inter alia) as follows:—</p> <p>“VIII. It is my will and desire-that Mrs. Mary McNeran .Coppuck shall receive and have to her own use and behoof, the rents, issues, and profits arising from the dwelling-house I now occupy, during her natural life. After her decease I grant and devise the said dwelling-house to Mal'com McNeran, son of my nephew, Asbel McNeran, during his natural life, not to be sold or exchanged while he lives, and at his death to vest in his heirs as tenants in common; but should he die without issue, then the said property to descend to my surviving heirs. Also, I give and bequeath to the aforesaid Malcolm McNeran, for and during his natural life, all that my three-story messuage or tenement and lot of ground situate on the south side of Mead Alley, in the district of Southwark, containihg in front about eighteen feet, and in length or depth about seventy-five feet, together with the appurtenances, and after his decease then the same to go to his children share and share alike; but should he die Avithout issue, then the said property to be equally divided among my surviving heirs. It is my will and desire that my nephew, Asbel McNeran, shall receive and have the rent 'of said house until his son Malcolm is of lawful age.”</p> <p>That the plaintiffs in this action obtained a judgment against Malcolm McNeran (the doArisoe), in the District Court for the city and county of Philadelphia, to March Term 1859, No. 5, D. S. B., for $600. That at the time of obtaining such judgment, the said Malcolm McNeran (the devisee) had and still hath lawful issue. That the said Mrs. Mary McNeran Coppuck having died, the plaintiff issued a fi. fa., D. 0., June Term 1862, No. 953, on such judgment, and caused the estate, right, title, and interest of the said Malcolm McNeran in the said tAvo pieces of real estate to be levied on and condemned as the property of the said Malcolm McNeran, the devisee, and thereupon issued a vend, ex., D. C., September Term 1862, No. 426, and caused the same to be sold by the sheriff, and purchased the same at the sheriff’s sale, and the sheriff’s deed therefor hath' been duly made to them. That ‘they have entered into articles of agreement with the defendant, Joseph C. Longstreth, to grant and assure to him the said properties by a good and sufficient title in fee simple, on the payment of the sum of $700, to Avit: $100 for the Mead alley property, and $600 for the Front street property ; and thereupon tendered themselves ready to convey unto him the title vested in them as aforesaid, Avhich he declined to receive, on the ground that it was not a good and sufficient title in fee simple, and waived the formal tender of a deed.</p> <p>If the court should be of opinion that the title vested in the plaintiffs, as aforesaid, is a good and sufficient title in fee simple to either or both of said properties, then judgment to be entered against the defendant for the amount of the agreed purchase-money of said property or properties, as aforesaid; but if the court should be of a contrary opinion, then judgment to be entered for the defendant.</p> <p>That at the time of the making of the will, and from that time np to and at the death of the testator, Malcolm McNeran, the devisee, was unmarried and without issue.</p> <p>A. Thompson, Att’y for plaintiffs.</p> <p>J. Cooke Longstreth, Att’y for defendant.</p> <p>The learned judge before whom the case was heard, directed the entry of judgment pro forma for the plaintiffs, for $700 and costs; whereupon, at the instance of the defendant, the case was certified to the court in banc, where the entry of judgment for plaintiffs was assigned for error.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of assumpsit brought, August 6th 1861, by Mary Salsbury against The City of Philadelphia, to recover an amount alleged to be due to her for the support of two deserted children. A declaration in assumpsit with the common counts was filed, to which the plaintiff pleaded non assumpsit.</p> <p>On the trial, there was a verdict in favour of the plaintiff, the learned judge* before whom the case was tried, reserving the point whether there was any evidence to go to the jury. On which point judgment was subsequently entered for defendants.</p> <p>All the material facts of the case will he found in the opinion of this court.</p>

<p> Ownership of Properly by Wife as against Creditors of Husband, how proven. </p> <p>1. Ownership by a wife of real or personal property must, as against existing creditors of her husband, be established by olear and full proof that she paid for it with her own separate funds; it is not enough that she had the means of paying.</p> <p>2. Hence, when in an ejectment for real estate, sold by the sheriff as the property of a husband, at the suit of his creditor, but claimed by the wife, the evidence that she paid for it out of her own separate estate, was not full and clear as the law requires, it was error to submit the question as to her ownership of the money paid, to the jury.</p>

<p>Marriage of Uncle and Niece, validity of.</p> <p>1. Under the Act of 13tli March 1815, the marriage of uncle and niece is voidable and not void; and if not dissolved in their lifetime, its validity cannot be questioned after the death of either.</p> <p>2. Therefore, where an uncle married his niece in 1856, and the marriage not being made public remained undissolvocl until his death in 1861, the widow was entitled to letters of administration on his estate.</p> <p>3. The' effect of the 39th sect, of Act 31st March 1860, declaring the punishment for intermarriage within the degrees of consanguinity, and that “ all such marriages shall be declared void,” not decided.</p>

<p>Error to the Common Pleas of Montgomery county.</p> <p>This was a scire facias sur mortgage, sued out in the court below, August 27th 1859, at the suit of James Bush, against John R. Breitenbach.</p> <p>The mortgage was dated March 30th 1857, and was due April 10th 1857. The suit was arbitrated, and on the 15th of October 1859, there was an award entered for plaintiff, from which the defendant appealed. When the case was reached on the trial list, the following agreement was executed by the parties and filed:—</p> <p>“ And now, to wit, May 21st 1860, it is agreed that judgment shall be entered in the above case, in favour of the above plaintiff, and against the above defendant, for the sum of $>4841.05, with costs of suit. Execution to stay until the 1st day of April next. And it is further agreed that the prothonotary shall enter the above judgment.”</p> <p>On the 2d of June 1862, James Bush issued an alias levari facias upon the above judgment. There had been a previous stay under the Act of May 21st 1861. On the 16th of June 1862, John R. Breitenbacli, by his counsel, filed in court a petition for a rule to show cause why said alias writ of levari facias should not be stayed and set aside by said court, upon the following facts, to wit, that the said John R. Breitenbacli, for several months previous to the issuing of said writ, was legally mustered into the military service of the United States for three years or during the war, and is still in said service as a captain in the 106th regiment, Pennsylvania volunteers. At the time of the filing of this petition, Captain Breitenbach was with his regiment in Virginia. The court granted the rule, and G. R. Fox, Esq., counsel for Mr. Bush, agreeing to the truth of the facts contained in the petition, the rule was, by consent, made returnable forthwith. After argument the court filed a written opinion discharging the rule. This writ was then sued out by Breitenbach, for whom the judgment of the court below, in discharging the rule to stay and set aside the writ, was assigned for error.</p>

<p> Enforcement of Civil Process against Persons in the Military Service of the United States. </p> <p>1. The Act of 18th April 1801, providing that no civil process shall issue or be enforced against any person in the military service of the state or of the United States, extends to a writ of scire facias upon a mortgage, unless expressly prohibited by the act of the contracting parties.</p> <p>2. The act is not unconstitutional, as impairing the validity of the contract by delaying the remedy; for the legislative power which conferred might also suspend it, for a time not unreasonable nor indefinite.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of assumpsit by Lathrop, Luddington & Co., merchants residing in New York, against Patrick Smith, James Riley, and William Hughes, partners trading as Smith, Riley & Hughes, in Philadelphia.</p> <p>The plaintiffs claimed to recover the amount of a book account. The defendants set up as a defence, that before and at the time the plaintiffs brought their suit against them, they had brought an action against,them for the recovery of the same money, in the city of New York, and that said action was still pending and undetermined between the parties. This defence the court below ruled to be insufficient, and gave judgment for the plaintiffs below. This writ was thereupon sued out by defendants, who assigned'for error the entry of judgment for plaintiffs, notwithstanding the affidavit of defence.</p>

<p>In the Supreme Court of Pennsylvania.</p> <p>This was an application for a quo warranto, based on the following petition:—</p> <p>“ John R. McCurdy, who sues in this behalf for the Commonwealth of Pennsylvania, this 20th day of February 1863, comes into court here, and for the said Commonwealth, gives the said court to understand and be informed that Isaac Leech, since the 5th day of January last, has exercised, and still does exercise the office, franchises, rights, and privileges of a. member of the Common Council of the city of Philadelphia, for the Twenty-fourth Ward of said city, under the circumstances and in the manner following, viz.: On the 14th day of October last 1862, at an election duly held in said ward for a member of Common Council for said city from said w'ard, according to the returns hereafter mentioned, said John R. McCurdy received 1587 votes, cast for him as such member of said'Oommon Council, and the said Isaac Leech 1555 votes, cast for him as such member of said common council, the said John R. McCurdy having a majority of 32 of the votes of the qualified voters of said ward. And the judges of said election made due and lawful returns of such election, showing the said number of votes cast for said John R. McCurdy and Isaac Leech respectively, as above set forth, and said above-mentioned majority in favour of said John R. McCurdy, and signed a certificate in favour of said John R. McCurdy, certifying in due form that he was duly elected a member of the Common Council of the city of Philadelphia for said ward, the Acts of Assembly in such case made and provided, and the provisions thereof in that regard being fully complied with, by means and reason of which said premises, the said John R. McCurdy became and was entitled to take his seat in said Common Council, at the organization thereof, begun on the 5th of January last, as a member duly elected from said Twenty-fourth Ward.</p> <p>“Yet notwithstanding said election and said return, and said certificate in favour of said John R. McCurdy, he, the said Leech, unlawfully and fraudulently combining and conspiring with five, to wit, a majority of the nine judges of the nine election divisions of said Twenty-fourth Ward, obtained and received from them a false and pretended fraudulent certificate, that he, the said Leech, had been duly elected a member of Common Council from said Twenty-fourth Ward, and after falsely, and fraudulently, and frequently avowing and declaring that he would not use said certificate, and thus throwing said John R. McCurdy off his guard, and inducing him not to commence any proceedings for the purpose of cancelling or preventing the use of said certificate, he, the said Leech, fraudulently combining with the president, clerk, and other organizing officers of said Common Council, used said certificate, and falsely and fraudulently demanded his seat in said council thereunder, and was by said organizing- officers fraudulently allowed to take his seat at the organization of said council on the 5th day of January last; and he, the said Isaac Leech, has as above set forth for the time aforesaid, held and used, and still does hold and use the said office, franchises, rights, and privileges aforesaid of member of Common Council for said city from said Twenty-fourth Ward, and has usurped and does usurp on the Commonwealth therein, to the great damage and prejudice of the constitution and laws thereof.</p> <p>“Whereupon the said relator for the said Commonwealth does make suggestion and complaint of the premises, and prays due process of law against the said Isaac Leech, in this behalf to be made, to answer to the said Commonwealth by what warrant he claims to have, use, and enjoy the franchises, rights, and privileges aforesaid.”</p>

This was an application to tbe Supreme Court by Henry E. Wallace and Edmund S. Yard, for a writ of quo warranto, based upon tbe following suggestion :— Henry E. Wallace and Edmund S. Yard, citizens and qualified voters of tbe Fifth Ward of tbe city of Philadelphia, who sue in this behalf, as well for the Commonwealth of Pennsylvania, this 21st day of February 1863, come into court here, and for the said Commonwealth, give the court here to understand and be informed, that…

<p>Construction of Will. — “ Income of $5000,” meaning of.</p> <p>A testatrix bequeathed “ the income of $5000,” to be paid to the legatee during life by “her executors, out of an adequate fund to be retained therefor.” Held,</p> <p>That the bequest was of the annual proceeds or interest of that sum of money, and not an annuity of that amount.</p>

This was an action on the case brought by Samuel Alcorn, to the use of ITenry J. Eox, against the City of Philadelphia, for the negligence of one of the city district surveyors, in surveying plaintiff’s lot, and for not talcing security from the said surveyor.

This was an action of ejectment brought by The Philadelphia Theological Seminary of St. Charles Borromeo against Nicholas Wall, for the undivided moiety of several houses and lots in Philadelphia. The case was this; — In 1849, William Morris devised the premises in question to his sister and his nephews, Nicholas Wall and Henry A. Farrell.

<p>Action by Accommodation Acceptor who pays without Funds provided by Drawer. — Parties to Suit where Claim lias been assigned. — Evidence for Plaintiff, on narr. averring agreement by Drawer to pay.</p> <p>1. An accommodation acceptor who has paid a hill for which no funds were provided by the drawer, may recover from him the amount, on an implied contract of indemnity.</p> <p>2. If the claim he assigned, and the debtor expressly promise to pay the debt to the assignee, he may sustain an action in hxs own name.</p> <p>3. Where the declaration was on the draft, and for money had and received, an amended count, setting forth that it was drawn for the defendants' accommodation, who agreed to take it up on maturity — a breach of the agreement and payment by the acceptors — an assignment, for valuable consideration, of the draft, and the cause of action thereon, and an express promise of ■ the defendant to pay the assignees — is allowable, and discloses a sufficient eause of action on which to recover.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an amicable action of scire facias sur claim for taxes between The City of Philadelphia, as plaintiffs, and the Trustees of the University of Pennsylvania, defendants, in which the following case was stated for the opinion of the court:—</p> <p>The claim filed is for taxes for the year 1861, upon property belonging to the defendants, situate on the west side of Ninth street above Chestnut street, common known as the Medical Hall.</p> <p>The Medical Hall is occupied by the medical faculty for the purpose of instruction in the medical department of the University. The medical department is entirely under the direction and control of defendants as much as any other department of the University. The medical professors are appointed by them, and hold their offices subject to their will and pleasure. The medical degrees are conferred by the provost, who presides over all the departments of the University, under the direction of the trustees.</p> <p>By the by-laws of the defendants, twelve gratuitous students are annually admitted to medical instruction in the University.</p> <p>The fees of the students attending the medical course are received by the medical professors, in accordance with the following resolutions, adopted by the defendants on the 7th of February 1860 :—</p> <p>“ Resolved, That the compensation of the members of the medical faculty will not be fixed at any particular sum, but will consist of the next and varying amount arising fro'm the proceeds of their respective chairs, and that while the said faculty are under no circumstances to be a burthen on the collegiate funds, the professors thereof will enjoy the whole of the aforesaid proceeds, after deducting therefrom such sums as will be required to meet expenditures hereafter to be specified.</p> <p>“ Resolved, That it shall be hereafter, as indeed it has been from the formation of the school, the duty of the several members of the medical faculty to collect in person, or by deputy, or through the agency of their dean, from the students purchasing their respective tickets, the money accruing therefrom, as well as the matriculatory and graduating fees.</p> <p>“ Resolved, That from the money thus collected, the members of the medical faculty will each deduct and place annually into the hands of the dean a sum, which, wrhen combined with equal sums paid by each of the other professors, will form an aggregate of $5200, say $742.85| each, which amount of $5200 shall be paid by the dean to the treasurer of the University, as its share of the fees paid by the medical students, and so credited on the books of the institution, and that the balance of their receipts; after paying the expenses of their chairs, and the appropriation required by existing by-laws for defraying the expenses of preparing the diplomas, and the increase and preservation of the Wistar and Horner Museum, shall constitute the compensation of said professors.”</p> <p>According- to the provisions of these resolutions, the sum of $5200 out of said fees is annually paid to the defendants.</p> <p>On behalf of the medical faculty, principally in the creation of the Medical Hall, and in certain alterations to it from time to time to him made, at the distance of and for the benefit of the medical faculty, a very large amount, exceeding $70,000, has been expended out of the general funds of the institution, and all repairs now made are done at the expense of the University.</p> <p>If the court be of opinion that, upon the above statement of facts, the Medical Hall is subject to taxation, then judgment to be entered for the plaintiff in the sum of $1002.63, but if not, then judgment to be entered for the defendants. The costs to follow the judgment, and either party reserving the right to sue out a writ of error thereon.</p> <p>The court below gave judgment for defendants, which was assigned for error by plaintiff.</p>

<p>Purchaser not hound in Court of Equity to accept doubtful Title.— What Titles are doubtful. — Presumption of Waiver by Vendee.</p> <p>1. A purchaser under articles of agreement, cannot be compelled, in a court of equity, to accept the title if doubtful or unmarketable.</p> <p>2. A title is doubtful that exposes the party holding it to litigation.</p> <p>3. Thus where the vendor’s title to a lot was by purchase at sheriff’s sale, as the property of one who had two years before sold it to another, but the deed had not beeu recorded until after the sale; on bill for specific performance to compel a vendee under articles to comply, it was held, That as the vendee was liable to contest the unrecorded and outstanding title, he could not be compelled in equity to take the property.</p> <p>4. In an executory contract for the sale of land, the vendee is not presumed to waive any right which the articles standing alone would give him : hence, in the absence of express proof that he agreed to run the risk of defects in title, he is not precluded from refusing to execute the contract, because he knew of a prior deed before the agreement was made, or because the executory contract contained no specific covenant against that title.</p>

<p> Liability of Railroad Company for Injuries occurring within the limits of their Track. </p> <p>1. The use of a railroad track, cutting, or embankment, except at lawful crossings of public roads or highways, is exclusively for the company and their employees.</p> <p>2. Hence, where want of ordinary care is not shown, a railroad company is not liable for an injury to a person on the road, whore ho had no right to be.</p>

<p>Interpleader. — Breach of Condition in Bond for production of Goods levied on. — Defence to Action on Bond.</p> <p>1. The condition of a bond, that goods levied on should be forthcoming to answer the writ, in case the interpleader issue granted therein, should bo determined against the claimant and in favour of the execution-creditors, is broken, if, upon such determination, all the goods are not forthcoming.</p> <p>2. It is not a defence to an action on the bond, that a part of the goods remained in partial satisfaction of creditors’ claims, especially whore those goods were not produced, but- were claimed as exempt under the Debtors’ Exemption Law.</p>

<p> Liajbility of retiring Member of Loan Association for Expenses during Membership. </p> <p>A member of a loan association is under obligation to contribute his share of its necessary expenses: hence, after his membership ceases, the association may recover, on his mortgage to secure loans, the sum loaned, with interest, and his proportionate share of expenses incurred during his membership.</p>

Sur application to Supreme Court for writ of error to the Court of Oyer and Terminer of Philadelphia. At December Sessions 1862, Patrick Ferrigan and Mary Williamson were Indicted jointly for the murder of Thomas Williamson. The defendants were separately arraigned, and separately pleaded not guilty, on which plea issue was joined by the district attorney. On the trial of Patrick Ferrigan, he was found guilty of murder in the first degree, and was sentenced accordingly.

<p> Right of Sheriff to charge County with Expense of hoarding and, lodging Militia called out by Mm to suppress Riot. </p> <p>A sheriff cannot provide food and lodging at the expense of the county, for militia called out by him to suppress insurrections and riots ; and persons furnishing food and lodging to militia called out for that purpose, at the instance of the sheriff, must have recourse to him personally, and not to Ihe county.</p>

<p>Error to the Common Pleas of Berks county.</p> <p>This was an action on the case by David Custer against William Harbold. The plaintiff declared for the trover and conversion of bushels of wheat, to which defendant pleaded non cul.</p> <p>The facts of the case were these:—</p> <p>By articles of agreement, dated the 15th of December 1855, the plaintiff agreed to sell and convey to the defendant a farm in Amity township, Berks, county, for the sum of $1600. In this agreement the grain in the ground was reserved to the vendor. The deed was to be delivered by the vendor to the vendee on the 1st of April 1856, when the purchase-money was to be paid.</p> <p>On the 7th of April 1856, a deed was executed and delivered by the vendor to the vendee. The deed was in the usual form, and contained no reservation of the grain in the ground. The consideration in the deed is $3500, which sum was fully paid by the vendee to the vendor on said 7th of April 1856, when the deed was delivered.</p> <p>The vendee took possession of the farm on the 1st of April 1856, and continued in possession; and, being thus in possession, harvested the wheat that was in the ground at the date of the agreement and deed, claiming the same as his own under the deed. For this wheat the action was brought, as above stated.</p> <p>The defendant on the trial alleged and offered to prove that “ the agreement was really made by and between the parties on the evening of the 14th of November 1855, though not reduced to wilting until the next day. That when the agreement was so made, on the 14th of November 1855, it was insisted by the vendor that the grain in the ground was movable goods, and would not pass by the sale with the land to the vendee, while it was insisted by the vendee that it was not movable goods, and that by the sale it would pass with the land to him. That it was then agreed between them that the grain in the ground should belong to the vendor, if it should be found to be movable property, and to the vendee, if it should not, in point of law, prove to be such property. That when the terms were thus agreed upon the vendee paid $100 to the vendor, in part of the purchase-money.” The court, on objection by the plaintiff, rejected the evidence, to which decision of the court the defendant by his counsel excepted.</p> <p>The defendant contended, in the court below, that the deed having been delivered to, him without any reservation as to the grain, it passed to him by the deed. That the deed showed the ultimate intent of the parties, and that when it differed from the agreement it prevailed, and that the agreement, by delivery of the deed and acceptance of it, was null and void.</p> <p>The court (Woodward, J.) charged the jury against this Anew of the laAV, under Avhich there Avas a verdict and judgment for plaintiff.</p> <p>The defendant thereupon sued out this writ, averring, 1. The court erred in rejecting the eAddence offered by the defendant as contained in his first bill of exceptions, to Avit: “ That on the evening of the day before the written agreement Avas made, the parties settled upon the terms of the contract, AArhen $100 was paid, and that it AYas at that time agreed that the grain in the ground should belong to the plaintiff, if it should be found to be movable property, and to defendant, if it should not in point of laAV prove to be such property.”</p> <p>2. In charging the jury, “ In the absence of any agreement on the subject, growing crops pass by a deed of land. But Ayhen such an agreement is shown to exist it may be asserted and enforced, although the deed itself is silent on the subject. The question for the jury is whether the stipulation as to this grain subsisted at the time of the conveyance. The agreement was one which would not necessarily merge in the deed.”</p> <p>“ The jury will ascertain under the evidence whether the reservation in the contract Avas fairly made. If it was, they will inquire whether the agreement providing for it was subsequently waived, surrendered, or relinquished by the plaintiff, while the absence of a reference to it would not of itself be conclusive against the plaintiff, it is to be considered as an element of proof upon this subject.”</p>

<p>Appeal front the Common Picas of Berks county.</p> <p>This was an appeal by Joseph Laucks, through his committee Adam Kauffman, from the decree of the court below, distributing the proceeds of the sheriff’s sale of the real estate of said Laucks.</p> <p>The facts of the case were as follows: — Judgments were entered against Joseph Laucks, in the Court of Common Pleas of Berks county, in favoxtr of the following persons, viz.:—</p> <p>Daniel K. Ney, entered on bond, October 6th 1858, for . . . $100.00</p> <p>Stichter & McKnight, entered on transcript, Nov. 19th 1858, for . 61.36</p> <p>Erank Y. AYagner, Esq., entered on note, May 20th 1859, for . . 65.00</p> <p>H. Yan Reed, Esq., entered on transcript, March 19th 1862, for . 10.00</p> <p>In the notes on which the last two judgments were obtained, the note to Van Reed-being dated October 7th 1858, the exemption had been waived by the defendant. In the judgments of Ney and Stichter & McKnight there were no waivers. A fi.fa. was issued on Ney’s judgment to April Term 1861, No. 135, on which the real estate of the defendant was condemned, A rule being granted, the inquisition was subsequently set aside by the court for irregularity. Pending the rule, a writ de inebrietate inquirendo was issued, and the defendant, Joseph Laucks, duly found by inquisition, to be an habitual drunkard, and having a wife and three minor children. On confirmation of the inquisition by the court, Adam Kauffman was appointed as his committee. An al. fi. fa. was then issued on the judgment of Daniel K. Ney to January Term 1862, No. 92, in which the defendant, by his committee before inquisition held, claimed the benefit of the Exemption Law, and the appraisers found the property could not be divided so as to set off a part to the defendant, and appraised the same at $350. A vend. exp. was subsequently issued on the Ney fi.fa., and the real estate sold for $330.70, besides costs.</p> <p>The defendant, by his committee, asked to take out of court, under the Exemption Laxv, $300, less the Wagner and Van Reed judgments, together amounting to $92.79. This being resisted by the attorney for the Ney and Stichter & McKnight judgments, rules were granted to the different parties, and on the 22d of July 1862, the court decreed the fund as follows:—</p> <p>SUPREME COURT [.Philadelphia [Laucks’s Appeal.]</p> <p>1. To Daniel K. Ney, the amount of his judgment and costs . $120.82</p> <p>2. To Stiehtcr & McKnight, do. do.....70.90</p> <p>3. To F. V. Wagner, do. do.....79.77</p> <p>4. To II. Van Reed, do. do.....13.02</p> <p>5. To Adam Kauffman, committee, balance.....40.13</p> <p>$330.70</p> <p>Which was the error assigned.</p>

This was a certiorari to the Register’s Court of the city of Philadelphia, at the instance of John A. Shermer, one of the children, and devisee and legatee of Joseph Shermer, deceased, and the executor of his will. On the llth day of February 1869, the appellant produced and proved, before the register, the will of Joseph Shermer, to which no objection was made.

<p>Error to the Common Pleas of Tioga county.</p> <p>This was an action of assumpsit, brought by Charles Duffey against John Duffey, Priscilla Harrison, and Robert II. Archer, administrators, &c., of John F. Harrison.</p> <p>The material facts of the case were as follows:—</p> <p>John E. Harrison married a daughter of Charles Duffey, the plaintiff below in this suit, by whom he had eight children, three of Avhom were named Sarah, Catharine, and Harriet. On the 8th day of June 1851, the mother died; the three children were taken to the funeral of their mother by the plaintiff and his wife, who were the children’s grandparents, and from the grave of their mother to the home of the plaintiff. Sarah was then four years old, Catharine two years old, Harriet, the youngest, being six weeks old, having been given by its mother to her sister, then living with the plaintiff, but since married to Wayne Lewis, who still retains the child. The other two were taken care of in the family, were treated as children, and made to work as soon as they were of sufficient age. No contract was made between John E. Harrison and Charles Duffey in relation to the maintenance and support of those children. John E. Harrison died in 1855, intestate, whereupon Priscilla Harrison, his second wife (since deceased), R. H. Archer, and John Duffey, the latter a son of plaintiff below and uncle of the children, were appointed administrators of the estate of deceased. No charges were made or claimed by Charles Duffey against John E. Harrison during his lifetime for the support of these children. After the administrators were appointed, he informed them that his wife had an account for keeping the children, and finally claimed $690 in his own name, which was not allowed by the administrators. He then brought this action to recover that amount.</p> <p>The learned court (White, P. J.) charged the jury as follows: — ■</p> <p>“ Plaintiff has brought this suit to recover compensation for the maintenance of the children of defendants’ intestate — furnished after the decease of their mother, and in the lifetime of their father.</p> <p>“Plaintiff is the grandfather of the children, but was under no legal obligation to board and clothe them on that account. If, however, he chose to do so under an agreement with their father, by which he agreed not to charge, he would be bound by such agreement, and could not recover compensation now for what he agreed to do free of charge.</p> <p>“ Whether this was the agreement of the parties or not the jury will judge from the evidence. In the absence of such agreement plaintiff would be entitled to recover a reasonable compensation — the amount of which will be determined by the jury. The .declarations of plaintiff to H. S. Archer, Esq., that the account belonged to his wife, that he had nothing to do with it, that she had had the trouble of taking care of the children, and he was willing she should have the pay, constitutes no legal objection to the plaintiff’s recovering in this suit.”</p> <p>There was a verdict and judgment for the plaintiff; whereupon this writ was sued out by defendant, who assigned for error the charge of the court.</p>

<p>Sale of Personal Property, when valid as against Creditors. — Delivery must he Actual and Possession Exclusive.</p> <p>1. To constitute a valid sale of personal chattels, as against the creditors of a vendor, the delivery of possession must be actual, if possible, or if the nature and bulk of the articles preclude, it must be constructive.</p> <p>2. A father, residing with his daughter and son-in-law, received from the latter, then in failing circumstances, a bill of sale of the household furniture, and a few months after assigned it to his daughter, all the parties continuing to live together, with no change of possession other than that the name of the son-in-law was taken from the door. On an interpleader issue between an execution-creditor of the husband, and the wife, it was held,</p> <p>That as there had been no actual delivery and change of possession of the property, and no exclusive possession of it in the vendee, the sale was a legal fraud upon creditors, and invalid as against them.</p>

<p>Error to the Common Pleas of Berks county.</p> <p>This was an action of ejectment, by Gile J. Wilson and John II. Kelly against James Mullen and Hester Mullen, for a house and lot in the city of Reading. The plaintiffs claimed as sheriff’s vendees of the property at a sale held under their execution against Jacob Snell, James Mullen, Robert Banford, and Henry McCarty.</p> <p>The title of the defendant was this :—</p> <p>James Mullen purchased the property in 1850 from Isaac Lcdom and wife. On the 12th of July 1856, he conveyed the property to S. E. Ancona, with a parol trust, that he should hold the same for Mrs. Mullen, which deed was recorded on the 14th of July 1856. Ancona conveyed to Mrs. Mullen September 13th 1856, which deed was recorded July 11th 1857. No money was paid upon either of these two deeds.</p> <p>On the 14th day of July 1856, James Mullen entered into articles of copartnership with Jacob Snell and Robert Banford, to carry on a forge in the city of Reading. The firm bought out an old firm, the members of which were Jacob Snell and one Snyder; taking the partnership assets, and agreeing to pay the partnership liabilities. Mullen, Snell and Banford were forge-men by trade. It was agreed that each of the partners should put $1000 cash into the concern (which was done), and also give their personal labour in the forge. Snell’s capital was in the assets of the old firm, and it was agreed that ho should keep the books and assist at the works. In March 1857, a newr partnership was formed by the addition of Henry McCarty to the former firm, and a rolling-mill was added to the forge. Up to this time business had been prosperous.</p> <p>The plaintiffs had discounted the business paper received by the firm from time to time to a large amount, and in October 1857 held business paper received by the firm, and endorsed by them to the amount of $4000. The business of the country being deranged, and a great many failures occurring, they became apprehensive that these notes .would not be met at maturity. Under these circumstances they applied to the firm, and procured a judgment-bond dated October 22d 1857, conditioned for the payment of $4092.60, being the amount of the notes held by them, which notes they returned to the firm. Judgment was entered October 23d 1857. On this a fieri facias was issued to August Term 1858, No. 150, and personal property of the firm sold to the amount of $876.90, which amount was applied to the claim of the plaintiffs. The real estate of the firm was afterwards sold for $10,950, a small amount of which was realized by the plaintiffs.</p> <p>December 9th 1859, a, plumes fieri facias was issued by the plaintiffs, and levied upon the house and lot in controversy. A vend, exponas was sued out February 19th 1860, and the property sold March 24th 1860, to plaintiffs for $120, and deed acknowledged April 16th 1860. At the sheriff’s sale Mrs. Mullen gave notice that the property sold did not belong to James Mullen, but to her, and that the purchaser at the sale would obtain no title. The plaintiffs, after obtaining the sheriff’s deed, brought this ejectment, as above stated.</p> <p>It was contended by the plaintiffs, on the trial below, that the deed of July 12th 1856, from James Mullen to S. E. Ancona, was void as to subsequent creditors, for the reason that Mullen was about to enter into partnership. The defendants insisted that as Mullen was not only entirely out of debt at the time, but actually put $1000 in cash into the firm, and as the debt to Wilson and Kelly was incurred long after the deed to Ancona was placed on record, was the debt of a new firm, and they trusted the firm exclusively, and had knowledge that the several partners had no other property than that in the firm business, the deed was not void.</p> <p>The court (Jones, P. J.) charged the jury as follows :—</p> <p>“ This is an action of ejectment by Wilson against Mullen and wife, to recover the possession of a certain messuage bought by the plaintiff at sheriff’s sale, at which sale was sold whatever right, title, and interest in the same Mullen had. The defence here is, that Mullen had no right, title, and interest in the said messuage, bound by the judgment under which that sale was had, but that the property thereof was duly and exclusively vested ‘.n his wife. [The plaintiff seeks to impeach the conveyances by which it is alleged the wife acquired title, mainly on the ground that those conveyances were made for the purpose of securing the premises to the wife free from any debts that her husband might create or contract in a business into which he was about to enter as a partner with others. If it be true that those conveyances were made under such circumstances, and with such a purpose, they will be of no effect against creditors of the husband, who became such in their dealings with him in the course of business of that partnership. Was the deed of Mullen and wife to Ancona of the 12th of July 1856, and that from Ancona to her of the 13th of September 1856, made for the purpose and under the circumstances mentioned ? If ay, there stands nothing in the way of the plaintiff’s recovering ; if nay, there stands nothing in the way of the defendant. The matter of fact is narrowed down to that, and as you find it, from the evidence in the case, your verdict will be one way or the other.]</p> <p>[“ The law does not prohibit a man from providing for those who are near and dear to him. But he may not do it in such a way as to withdraw his means from existing creditors, nor from such as may become creditors, by putting his property away upon the eve of going into a new business with a purpose of making provision against its risks.] That purpose, however, is the very essence of the thing. The jury must be satisfied that it existed, that it was the motive that lead to those conveyances, before they can find for the plaintiff.”</p> <p>The whole evidence in the case was then read to' the jury, and presented to them in the order of time.</p> <p>Under these instructions there was a verdict and judgment in favour of plaintiffs. Whereupon the defendant sued out this writ, and assigned for error that part of the charge of the court which is printed above in brackets, and that the court below erred in not instructing the jury, 3. That if the plaintiffs, before and at the time Mullen became indebted to them, knew that he no longer owned the property in question, they cannot now invalidate the conveyance; and, 4. That as the debt to the plaintiff originated long after the firm into which Mullen first entered (and which left no, debts) had been dissolved, if he was out of debt when the conveyance was made, creditors of the new firm could not invalidate that conveyance.</p>

<p>Error to the Common Pleas of Bradford county.</p> <p>This was an action of ejectment, by Timothy Hireen against The North Branch Canal Company, for a tract of land covered by the canal of the defendants, in which the following case was stated for the opinion of this court:—</p> <p>T. Hireen, the plaintiff, purchased the land in dispute December 3d 1852, and took possession of the same, and held and occupied the same till taken by the defendants, as hereinafter set forth.</p> <p>The Commonwealth of Pennsylvania located and constructed a portion of the North Branch Canal through the lands of the plaintiff, and in the construction and use of said canal, took possession of the land in dispute, and occupied and used it for the canal.</p> <p>The canal was constructed in the years 1853 and 1854, and the water let in the canal in the spring of 1855, under the control of the Commonwealth of Pennsylvania, and the same was in full use until the Commonwealth sold -it to the defendants, and the defendants from the time of such purchase have continued to use it as a canal and as a public highway, according to the purpose for which it was constructed. In the year 1858 an Act of Assembly was passed, authorizing the sale of the public improvements of the Commonwealth of Pennsylvania, and in pursuance of that act, the North Branch Canal was purchased by the defendants, subject to the payment of damage for the construction of said canal, as set forth in said act.</p> <p>On the 1st of August 1859, the plaintiff commenced a suit against the defendants, in pursuance of the Act of Assembly, passed the 13th day of April 1859, by filing his petition, setting forth the damages he had sustained in consequence of the construction and use of the said North Branch Canal through his premises by the taking of the land in question.</p> <p>That the same was tried in the way and manner pointed out by the Act of Assembly, and judgment entered in favour of the plaintiff for the sum of $859, on the 15th day of November 1859.</p> <p>That execution has been issued, and returned nulla Iona before the commencement of the suit.</p> <p>The land was patented to Arthur Irwin by the Commonwealth of Pennsylvania 23d of February 1792, and the legal title by mesne conveyance became vested in the plaintiff, as above set forth.</p> <p>That the defendants were in possession of said land at the time of the commencement of this suit, for the use of the canal.</p> <p>That no portion of the damages recovered by the plaintiff against the defendants has been paid, or security given therefor.</p> <p>The Acts of Assembly referred to are made a part of the case.</p> <p>If the court be of opinion that from the facts herein stated, the. plaintiff is entitled to recover, then judgment to be entered for the plaintiff, otherwise for the defendants. The court below gave judgment for the plaintiff, which was the error assigned.</p>

<p>Summons.— Validity of service on travelling Agent of Corporation.</p> <p>The service of a summons on a travelling agent of an insurance company, or upon one authorized, only to effect insurances, is not a valid service upon the company.</p>

<p>Appeal from the District Court of Philadelphia.</p> <p>This was an appeal by the Bank of Commerce, from the decree of the court below, dismissing exceptions, filed for the appellants, to the report of the auditor appointed by the court, to distribute the proceeds of the sheriff’s sale of the real estate of Robert Comly and William H. Maurice, as also a writ of error by the bank to the judgment of the District Court upon a verdict rendered in favour cf the defendant, in an issue awarded in the matter of said distribution, wherein The Bank of Commerce was plaintiff, and Edwin Forrest defendant.</p> <p>The fund in court was the balance (after paying the judgment under which the premises wore sold and the expenses of sale) raised by a sheriff’s sale of certain real estate, situate on the south side of Poplar street, between Fifteenth and Sixteenth streets, in the city of Philadelphia, under a levari facias, issued upon a judgment obtained upon a purchase-money mortgage made by the defendant and a former owner of the property, Robert Comly, to the Franklin Fire Insurance Company, and by it assigned to Edwin Forrest.</p> <p>Subsequent to the making of this mortgage, the premises had been conveyed, on the 5th of April, A. D. 1850, subject to the same, to William H. Maurice, as whose property it was sold, under the above proceedings, on the 7th of January 1861. On the 9th of March 1855, Maurice mortgaged the premises to A. B. Borie, Esq., to secure the payment of the sum of $4000, as therein expressed, in one year frpm the date thereof. This' mortgage ■was recorded on the 12th day of March 1855. It was claimed that this mortgage belonged in fact to the Bank of Commerce, of which Mr. Borie was president, and that, at the time of the sheriff’s sale, the sum of $3213.25 was due thereon, and that the same was the first lien upon the fund in court. The whole of the fund was also claimed under a judgment entered against William H. Maurice, in favour of Edwin Forrest, in the District Court, on the 24th day of April 1856, for the penal sum of $20,000, by virtue of a warrant of attorney accompanying the bond. This bond was given to secure the payment of the sum of $10,000, and was executed on the 22d of October 1853, about two years and a half prior to judgment being .entered upon it.</p> <p>The facts material to a proper understanding and determination of the points involved were thus found by the auditor, John F. Brinton, Esq.:—</p> <p>In 1853, William H. Maurice borrowed from Edwin Forrest the sum of $10,000, to secure which he gave the bond alluded to. This, with the accompanying warrant of attorney, were retained Toy Mr. Forrest in his possession, and no judgment entered thereon until April 24th 1856. On the 9th of March 1855, Mr. Maurice mortgaged the premises to A. E. Borie, Esq., who at the same time, gave to Mr. Maurice a declaration as to the purpose for which the mortgage was given, of which the following is a copy :—</p> <p>“ To all to whom these presents shall come: I, A. E. Borie, of the city of Philadelphia, merchant, send greeting. Whereas, William II. Maurice, of the said city, stationer, hath this day executed to me his bond and mortgage, conditioned for the payment of the sum of $4000 in one year from the date thereof: Now, know ye that I, the said A. E: Borie, do, by these presents, confess, acknowledge, and declare that the said bond and mortgage were executed by the said William II. Maurice, only as collateral security for the payment of notes discounted, or hereafter to be discounted, by the Bank of Commerce for-the use of the said William H. Maurice, and to and for no other use, intent, and purpose whatever; that I do not, on account of myself or my heirs, claim or demand any right, title, or interest in or to the said bond or mortgage, but do hereby confess, acknowledge, and declare that the said bond and mortgage were made to and received by me only as a trustee to the use of and for and on behalf of the-said Bank of Commerce, of which I am the president; and that I, the said A. E. Borie, my executors and administrators, shall and will satisfy and cancel the said bond and indenture of mortgage, when the board of directors of the said bank shall request me so to do. In witness whereof, I, the said A. E. Borie, have hereunto set my hand and seal, this 9th day of March, A. D. 1855.</p> <p>(Signed) “ A. E. Borie. [seal.]</p> <p>Sealed and delivered in the presence of “ James C. Donnell,</p> <p>“William S. Adair.”</p> <p>The evidence before the auditor showed that all the notes held by the Bank of Commerce, on which Mr. Maurice is responsible, were dated subsequently to the entry of Mr. Forrest’s judgment against him. Mr. Maurice was examined at great length, and, from his testimony, it appeared that he owed the bank rather more at the time of the entry of the judgment of Mr. Forrest, than at present; that he was in the habit of paying the notes that had been discounted for him as they became due, and getting other notes of about the same amounts discounted by the bank at or about the same time to meet these payments. Sometimes he would get a note discounted a few days prior to the maturity of the one falling, due, and at other times, when he had sufficient money in bank to meet the maturing note, he would not get a discount until some days afterward, keeping, however, in the aggregate, his line of discounts very nearly the same. The notes produced by Mr. Maurice showed, during several years, a remarkable regularity and uniformity, the date of each succeeding note approximating very closely in time to the maturity of the prior one, and generally for the same amount. Mr. Maurice said distinctly that he regarded this long series of notes merely as a regular chain of renewals of those originally discounted for him. He, however, stated, with equal distinctness, that all the notes referred to, over one hundred in number, dating from those held by the bank at the time of the entry of Mr. Forrest’s judgment to those now held by the bank inclusive, had been offered by him for discount at the bank on the regular discount days; had been, in the usual manner, discounted for him by the bank, and the proceeds passed to his credit in his bank account; and that the.reason he regarded them as renewals was that he considered himself always entitled to a certain amount or line of discounts in the bank, from having given the mortgage of $4000 to protect any discounts made or to be made for him.</p> <p>The counsel for the bank (Mr. Perkins) maintained that the notes now held by the bank were in fact but the last of a series of renewals of notes originally discounted by the bank for Mr. Maurice prior'to the entry of Mr. Forrest’s judgment, and that they were merely the evidences of the same debt that existed then.</p> <p>The counsel for Mr. Forrest (Mr. Dougherty), on the other hand, contended that the evidence showed conclusively that the notes now held by the bank, on which Mr. Maurice is responsible, were discounted in the regular way by the bank for him; that they were, in no proper acceptation of the term, renewals of prior notes; and that, even if they were such renewals, not being provided for in the declaration given by Mr. Borie, they were not protected by the mortgage held by him in trust for the bank, so as to enable him to claim for it priority in payment over a judgment entered before such renewals.</p> <p>The auditor was of the opinion :—</p> <p>1. That the notes held by the Bank of Commerce were discounted by it for Mr. Maurice subsequently to the entry of Mr. Forrest’s judgment, and that therefore that judgment had a priority over the mortgage under which the bank claimed the fund in court .aiven, to secure such discounts, there being no obligation on the part of the bank to make such discounts; and</p> <p>2. That even if the notes held by the bank were regarded as the last of a series of renewals of notes discounted by the bank prior to the entry of Mr. Forrest’s judgment, still, as such renewals were made, if at all, long subsequent to the entry of said judgment, and as it was expressly agreed, at the time of its execution, that the mortgage under which the bank claims was given for no other purpose, use, or intent than as collateral security for the payment of notes discounted or to be discounted by the bank for the use of the said William H. Maurice, the judgment of Mr. Forrest was entitled to be first paid out of the fund in court.</p> <p>He therefore awarded the fund in court, $3425.45 less expenses, to Edwin Forrest, on account of the judgment of Forrest v. Maurice.</p> <p>To this report, exceptions were filed for the bank, which, on argument, were dismissed by the District Court for the following reasons:—</p> <p>“We dismiss these exceptions, and confirm the report of the auditor absolutely. We entirely concur in his reasoning and conclusions, and it is unnecessary to add anything.</p> <p>“ The mortgage, as against Mr. Forrest, was only a security for the notes held by the bank when his judgment was entered. It did not in terms include renewals. If the notes now held were, in bank language, renewals, we cannot see how they could be in the security, supposing that, under the decision, it became fixed at the date of Mr. Forrest’s judgment. By the very term renewal, in banking and legal language, is meant not another security for an old debt, but a novation or renovation, from time to time, a direct payment and discharge of the old debt, and an entirely new contract and advance. It may possibly be different in some cases as to the parties, maker and payee, but so far as the bank is concerned, in fact and in law, the old notes are surrendered and cancelled, new notes taken, and a new discount in advance charged and deducted from the face of the bill, thus enabling the bank, on a note at sixty days, to receive four-tenths of 1 per cent, more than 'legal interest, besides compounding it as they go along. The bank has never any claim except upon the notes. They do not loan the money and take the notes as collateral; they buy the notes from those who offer them for discount. It was not from any doubt on this point that the issue was directed, but because we felt some difficulty as to whether this was a question of fact, the exceptant having demanded an issue upon it, namely, whether the subsequent notes were merely different'securities for one and the same debt; not what was the intention of the parties, which might be very well on a question as between themselves, but the rights of a third party having intervened, what were the facts ? The verdict of the jury on the issue was what was to be anticipated. The notes now held could not even be shown to be the lawful issue of those originally discounted. Every one of them was illegitimated by breaks in the descent. Besides which, the fact as to the manner in which all banks invariably conducted this business, came out fully and without contradiction on the trial, so that, even had it been shown, Avhich it was not, that the proceeds of the discount of every note had been specifically applied to pay its predecessor, no jury would say, with any show of truth, that they were mere new securities for an old debt.” The substance of the charge to the jury on the trial is stated in the opinion of this court. This appeal was then taken and the writ of error sued out.</p> <p>The errors complained of here were the dismissing of the exceptions filed for the bank, and the refusal of the court on the trial to permit the counsel for the bank to propound the following questions to Mr. Maurice, when on the stand as a witness:—</p> <p>“ Is or is not that note a renewal of any note or notes formerly held by the Bank of Commerce, and if so, of what note or notes ?</p> <p>“Were or were not the notes now held by the plaintiffs intended as renewals of the notes held by the bank prior to Atril 24th 1856 ?”</p> <p>The refusal of the court to allow the counsel for the bank to propound the following questions to the witness, A. E. Borie, while on the stand:—</p> <p>u What was the intention of the bank and Mr. Maurice in relation to the series of notes; was it or was it not their intention that they were to be considered as renewals ?</p> <p>“Wore any of the notes prior to April 24th 1856, discounted by the bank for Maurice, ever renewed ?”</p> <p>And in refusing to instruct the jury as requested in plaintiff’s first and second points, which were as follows :—</p> <p>“ That if the jury beli'eve from the evidence, that it was the intention of the parties, that the several series of notes mentioned in the printed schedules should be considered as renewals, the verdict must be for the plaintiffs.</p> <p>“ That whether the notes in question'were the last of a respective series of renewals, depends upon the intention of the parties as to the successive notes which make up the respective series. And, if the jury believe from the evidence, that it was the intention of the parties that these successive notes should be renewals of the preceding notes in the respective series, the verdict must be for the plaintiffs.”</p>

This Avas an appeal from the judgment of a justice of the • peace. The suit was brought by Tristram Smith against M. Chamberlain and J. Benson, to recover the value of a pair of oxen, which plaintiff alleged the defendants took from his possession, and disposed of without his consent. The action before the justice was trespass, and resulted in judgment for plaintiff.

<p>Error to tbe Common Pleas of Tioga county.</p> <p>This Avas an action of ejectment, brought by Eleazar Seely, Charles Seely, Orael Kilburn, Avife of John M. Kilburn, and Joanna Mead, wife of George A. Mead, against Henry Seely, Chloe Seely, and Levi Scott, for a lot of land in Deerfield toAvnship, Tioga county, in which the following case was stated for the opinion of the court:</p> <p>“ Julius Seely Avas the owner of two pieces of land situated in Deerfield township, Tioga countyone lying on the north side of the road from Knoxville to Elkland, containing about seventy acres, and bounded on the north by land formerly of Silas Billings, on the east by David Coates, on the south by public highway. Another on the south side of said road, bounded on the north by the factory and factory pond of E. & B. S. Bowen, east by the tail-race of said factory, south by the watercourse called the waste-way,, and AYest by the lane leading from the road to the river, containing about eight acres of land. Said Seely made- a will, bearing date the 16th day of October 1850, giving and bequeathing by said will to his two daughters, Chloe Seely and Caroline Seely, among other things, the whole of the lot last above described, and the east half of the lot first above described, being the land in controversy in this suit, to have and to hold the same, and all the profits thereof, during their natural lives ; and after their decease, to their heirs if any they have; and if they die without heirs, then said land should fall to his heirs. And by said will also devised the western half of the lot first above described, to his other children thereinafter named.</p> <p>“Julius Seely died on the 21st day of October 1850, leaving no wife, but leaving said will unrevoked, and the following named persons, his children and heirs at law, to wit: Henry Seely, Orael Marlatt, Eloazar S. Seely, Eunice Grantier, Charles Seely, Piula Lee, Elizabeth Beaver, Joanna Mead, Chloe Seely, ancl Caroline Seely. Caroline Seely, one of the devisees named in said will, died on or about the 3d day of April 1858, without issue, unmarried and intestate; the other heirs of Julius Seely within named, her brothers and sisters still surviving, excepting Elizabeth Beaver who had died, but left issue still living. The question for the decision of the court in this case is: To whom did the interest of Caroline Seely, in the premises named, descend at her decease? to her surviving sister Chloe, or to the whole of the surviving brothers and sisters named, in equal shares ? If to the former, judgment to be entered in favour of the defendants. If to the latter, judgment to be entered in favour of the plaintiffs for such a portion of said premises as they together are entitled to therein.”</p> <p>The costs to follow the judgment, and either party reserving the right to sue out a writ of error thereon.</p> <p>The court below, on hearing the case, directed the entry of judgment for defendants, which was the error assigned here on writ of error by plaintiffs.</p>

<p>Appeal from the Common Pleas of Bradford county.</p> <p>This was an appeal by Elias W. Hale, from the decree of the the court below distributing the proceeds of the sheriff’s sale of the personal property of Decatur Ayres.</p> <p>There were three executions in the sheriff’s hands against the defendant, two in favour of E. W. Hale and one in favour of Roswell Luther.</p> <p>The writs of Hale wore marked by the sheriff, “Received June 16th 1862, at three o’clock p. M.”</p> <p>The writ of Mr. Luther was received same day, no hour being mentioned; but the following statement was appended to it by the sheriff:—</p> <p>“ In the case of the writs, Roswell Luther, and Allen McKean to the use of E. W. Hale v. Decatur Ayres; I went into the prothonotary’s office about fifteen minutes before three o’clock, June 16th 1862, and took a number of writs from the sheriff’s box, among which was fi. fa. No. 187, being Luther’s writ. I was having Chaapel correct the numbers on some papers. I returned the writs -to the box, intending to take them when I returned to my office, but neglected doing so. Soon after I returned, Le Roy McKean came in with fi. fa. Nos. 188 and 189. I told him I thought there was a writ in my box against the same man. I then went and got writs, excepting Hale’s, at that precise time— three o’clock.</p> <p>“Signed, “A. H. Spalding.”</p> <p>The auditor distributed the fund to the executions of E. W. Hale. On exception filed, the court below (Merour, J.) reversed the report of the auditor, and directed the fund to be applied first to the execution of Roswell Luther, which was the error assigned here.</p>

<p>Certiorari to the Common Pleas of Crawford county.</p> <p>This was an appeal by J. I. Vandewarker, late justice of the peace, from the order of the court below directing the appellant 'to surrender his docket to his successor in office.</p> <p>The case was this: — On the 24th day of January 1862, the following petition was presented to the Court of Common Pleas for the county of Crawford :—</p> <p>“ To the Honourable, &c. — The petition of the undersigned respectfully represents that heretofore J. I. Vandewarker was, and acted in the capacity of a justice of the peace, in the borough of Titusville, in said county, and issued process and rendered judgments against divers persons, which judgments now remain unsatisfied upon the docket of the said J. I. Vandewarker. That in February, a. d. 1861, John Tracy was elected a justice of the peace in the said borough, and was afterwards duly qualified and took upon himself the duties and responsibilities of the office aforesaid, and the commission of the said J. I. Vandewarker expired, and his term of office ended when the said Tracy was commissioned, and the said John Tracy became and was the successor in office of the said J. I. Vandewarker.</p> <p>“ That your petitioner has asked and demanded that tho docket of the said J. I. Vandewarker should he delivered to the said John Tracy, successor as aforesaid; and that the said Vandewarker has refused and still does refuse to so deliver the said docket to the detriment of your petitioner and others.</p> <p>“ And your petitioner prays your honours to make a rule directing the said Vandewarker to deliver his said docket to his successor in office, or to show cause why he should not make such delivery on the second Monday of February 1862.</p> <p>“ And your petitioner, as in duty bound, will ever pray, &c.</p> <p>“ J. H. Baker.”</p> <p>About the 1st of February, Tracy resigned, and E. L. Drake was duly elected and qualified as his successor.</p> <p>On the above petition a rule to show cause on the second Monday of February next issued from the court, which was returned served, as follows :—</p> <p>“ J. II. Baker being duly sworn, says, that on the 29th day of January 1862, he did serve a copy of the within rule on J. I. Vandewarker, at the same time showing him the original with the seal of the court, and further saith not.”</p> <p>The following was also endorsed on the rule : — ■</p> <p>“ G. W. Hecker appears for defendant.” On the 13th day of February 1862, respondent filed his answer in writing in open court, admitting “ what is said in the same is true,” but that your respondent denies that upon the petition he is obliged by law to deliver his docket as prayed for, averring that he has been at all times, when it was demanded, ready and willing to comply with the laws in giving transcripts of judgments on his docket; that he lives in a district wherein he was a justice, and has no intention, and has not had any, of removing from it; has never refused a transcript to any person. .That the docket was bought and paid for by himself, and he claims it as his own private property, and claims he has a right and a lien upon it for his fees in many cases recorded therein.”</p> <p>The court below made the following order :—</p> <p>“ And now, to wit, April 9th 1862. The above case having been presented on the petition and answer, argued by counsel, and duly considered by the court, it is hereby ordered and decreed that the said respondent, J. I. Vandewarker, Esq., do surrender and hand over his docket, together -with all notes, bonds, accounts, and other papers in his possession, touching any judgment or suit entered thereon not finally disposed of, to E. L. Drake, Esq., his successor in office, within ten days from this date, or upon demand at any time thereafter, and that he pay the costs of this proceeding. Per Curiam.”</p> <p>This writ was then sued out, and the following errors assigned:</p> <p>1. The court below had no authority to hear and adjudicate in the premises.</p> <p>2. The court below erred in assuming jurisdiction in the case, and in adjudicating thereon.</p> <p>3. The court below erred in decreeing that the respondent should surrender and hand over his docket, &c., to E. L. Drake, Esq.</p>

<p>Error to the Common Pleas of Philadelphia.</p> <p>This was an action of replevin by Jeremiah Bonsall and Edward W. Davis against F. A. Comly.</p> <p>The material facts of the case were these: — The plaintiffs jointly leased from the defendant (who, it appeared by the avowry and cognisance, was acting as the agent of the North Pennsylvania Railroad Company) certain premises in Walnut street, in the city of Philadelphia, under written articles, dated in February, 1860. In September 1862, the lessees being in arrears for rent, the lessor, by his bailiff in his own name, dis-trained upon a part of the goods and chattels upon the premises for said rent. The defendants in distress, who were plaintiffs herein, claimed the benefit of the provisions of the Act of Assembly, passed April 9th, a. d. 1849, entitled “ An act to exempt property to the value of $800 from levy and sale on execution and distress for rent.” The bailiff selected appraisers, who appraised the articles distrained upon at the sum of $204, and the bailiff and the watchman employed by him withdrew from the possession of them. Afterward, and before said goods were removed from the premises, the defendant directed the bailiff to disregard the claim made under the Act of 1849, and to proceed; the bailiff then advertised the goods for sale. Whereupon this action was brought for the goods and chattels so reseized and advertised for sale by said defendant by his bailiff.</p> <p>The plaintiffs declared in the usual form, to which the defendant made cognisas.ce. The plaintiffs then filed a special plea in bar, to which defendant demurred, and the case was set down for argument on the demurrer. After argument, the court below (Ludlow, J.) sustained the demurrer, and entered judgment against the plaintiffs.</p> <p>To this judgment the writ of error was taken, and the following errors assigned for the plaintiffs:—</p> <p>1. The learned judge erred in sustaining the demurrer of the defendant to the plea of plaintiff.</p> <p>2. The learned judge erred in not entering judgment for the plaintiffs on the demurrer filed by defendant.</p>

<p>Husband’s Curtesy Estate in Wife’s Real Property. — Admission of Husband!, when Evidence against him. — Estoppel in pais.</p> <p>1. Though land owned by a wife be her separate estate, the husband is entitled to his curtesy in it, and her conveyance without his joining in the deed, is void as against him.</p> <p>2. But where the money derived from her sale of the land was loaned out by her during her life, and at her death divided equally between the husband and the children, he would be estopped from claiming curtesy in the land.</p> <p>3. In an action by the husband for his. curtesy, where the defendant who held title under the wife’s vendee, offered to prove that the husband on division of the money said “ it would not be right for him to claim any estate in the land," the rejection of the offer was error.</p>

This was an action on the case, brought by George Kemerer against Eli Hoffman, to recoverdamages for the alleged seduction of his daughter Caroline, per quod, &c., in which there ivas a verdict and judgment for plaintiff. On the trial eighteen bills of exception were sealed for defendant as to the admission and rejection of testimony, most of which were abandoned on the assignment of errors in this court.

<p>Error, to the Common Pleas of Bucks county. .</p> <p>This was an action of assumpsit on a promissory note, brought in the court below to April Term 1843, wherein James M. Hart •was plaintiff, and Benjamin E. Wright was defendant. James M. Hart having died after the bringing of the suit, William Boyd, his administrator, was substituted, who on same day filed a narr. containing three counts. The first was on a promissory note drawn by John Duffield, on the 10th day of October .1837, payable fifteen months from the date thereof to Lewis Darrah or order, in the sum of $541.34, with interest from date, which note, it was averred, Lewis Darrah on the same day endorsed and delivered to Benjamin E. Wright, the defendant, by whom it was on the same day endorsed and delivered to James M. Hart the plaintiff. The other two counts were the common counts in indebitatus assumpsit for $1000, money lent and advanced, and for money had and received. In this narr. the damages were laid at $Í000. The defendant pleaded non assumpsit and payment.</p> <p>November 21st 1861, the plaintiff filed in the prothonotary’s office a new narr., which on the 7th day of December 1861 (when the case was called for trial), he brought into court and asked permission to file. This was granted, the defendant’s counsel objecting. The new narr. contained five counts; the first on the note which was declared upon in the old narr., the second on a note drawn by Lewis Darrah, on the 16th of October 1837, payable to Benjamin E. Wright, or bearer, on or before the 1st day of April 1840, in the sum of $525, with interest, in cuiwent funds at Pittsburgh; which note, the narr. averred, Lewis Darrah then and there delivered to Benjamin F. Wright, who on the same day and year endorsed and delivered the same to the plaintiff. The other counts of this narr. were in indebitatus assumpsit for $3000, money lent, advanced, paid, laid out, and expended for the use of the defendant, &c.; and also for the sum of $3000, money had and received; and in the further sum of $3000, money found to be due and owing from the defendant to the plaintiff, and in arrears and unpaid on an account there and then stated between them. The damages were laid in this narr. at $5000.</p> <p>On the trial the plaintiff offered in evidence a note, dated October 16th 1837, drawn by Lewis Darrah, and payable on or before the 1st day of April 1840, to Benjamin F. Wright, or bearer, in the sum of $525, with interest, in current funds at Pittsburgh, being the note declared upon in the second count of the plaintiff’s additional narr. The defendant objected to the admission of this note in evidence; but the court overruled the objection, admitted the evidence, and sealed a bill of exceptions.</p> <p>The plaintiff then gave in evidence the certificate of the notary, bearing date the 4th of April 1840, protesting the said note for non-payment, and thereupon the case was closed on both sides.</p> <p>The court charged the jury as follows :—</p> <p>“ The plaintiff, in this case, claims to recover the sum of $525, with its interest, alleged to be due on a promissory note, dated the 16th day of October, A. d. 1837, drawn by Lewis Darrah, payable to Benjamin F. Wright, or bearer, and endorsed by Benjamin F. Wright, who is. the defendant. The note with its endorsement and certificate of protest have been admitted in evidence. This is the only note submitted to you, although the plaintiff in his original declaration, specially declared upon another note, different as to date, drawer, amount, &c. This declaration contains two common counts.</p> <p>“When the case came on for trial, plaintiff’s counsel asked leave to file an additional or amended declaration, containing a special count upon the note in evidence, and the usual common counts. To this the defendant’s counsel objected, on the ground that thereby a new and different cause of action from that originally declared upon would be introduced. The court overruled the objection, and allowed the declaration to be filed.</p> <p>“ The jury have the note with its endorsement, and the certificate of protest, before them, and we instruct them, if they believe the evidence, the plaintiff is entitled to their verdict for the amount of principal and interest due on the note.”</p> <p>Under these rulings the jury rendered a verdict in favour of plaintiff for the sum of $1219.37. A rule for a new trial was then granted, on motion of the defendant, for the following reasons: — 1. Because the court permitted the plaintiff to file another barr., introducing a new, independent, and different cause of action from that set forth in the original narr. 2. Because the court admitted in evidence the note set forth and described in the second narr. 3. Because the court charged in substance that if the jury believed the evidence, the plaintiff was entitled to recover. 4. Because the verdict is against the law and the evidence.</p> <p>After argument the court discharged the rule, and entered judgment on the verdict. Whereupon the defendant sued out this writ, and filed the following assignment of errors:—</p> <p>1. The court erred in permitting the plaintiff to file the additional or amended narr.</p> <p>2. The court erred in admitting in evidence the note declared upon in the second count of the plaintiff’s additional narr., and which is embraced in defendant’s bill of exceptions to evidence.</p> <p>3. The court erred in charging the jury as follows: “ The jury have the note with its endorsement and the certificate of protest before them, and we instruct them, if they believe the evidence, the plaintiff is entitled'to their verdict for the amount of principal and interest due on the note.”</p>

<p>Error to the Common Pleas of Northampton county.</p> <p>This was an action of debt, brought November 27th 1857, by Catharine Stout, Abraham Stout, and Lewis II. Stout, administrators, &c., of Isaac Stout, against Michael Meyers, administrator, &c., of Abraham Stout, deceased, who filed their statement, setting forth that their claim was a bill single of Abraham Stout, dated May 10th 1837, for $379.21, payable to Solomon Bachman or order, one year after the date thereof, with interest; tnat on the 1st day of April 1838, .Solomon Bachman, the obligee, equitably transferred the same to Isaac Stout; and that on the 1st day of June 1842, the said Solomon Bachman died intestate. January 11th 1858, the case was arbitrated, and resulted in an. award for plaintiffs for $826.68 and costs. At the arbitration, no plea had been entered on the record by defendant, but the case was tried on the statement. The hearing before the arbitrators disclosed the real cause of action to be a bill single, purporting to be signed by Abraham Stout and Isaac Stout, which was produced, accompanied with the allegation that Isaac Stout was surety, that it was paid by him to Solomon Bachman, the obligee, on or about the 1st day of April 1838. The legal and equitable defence then set up -was — 1. That the suit was brought by the wrong party. 2. If the parties were right, the form of action was erroneous. 3. That there was no statutory assignment of the bill single. 4. The Statute of Limitations. 5. Payment; and 6th. A denial of the fact of suretyship and payment by Isaac Stout.</p> <p>January 28th 1860, the defendant appealed from the award. August 26th 1860, defendant pleaded “payment;” same day, plaintiffs replied, and issue. August 29th 1861, the plaintiffs asked leave to file an amended statement, instead of the statement originally filed, which was allowed, defendant objecting thereto. The amended statement set forth circumstantially the plaintiffs’ cause of action, which accorded with his claim as set up before the arbitrators. On the day the amended statement was allowed to be filed, defendant added the pleas of “ non est factum,” “ actio non accrevit infra sex annos,” and “nunquam indebitatus.” Same day, jury were sworn. The plaintiffs demurred to the plea of “actio non accrevit infra sex annosa juror was withdrawn and case continued. On the 17th of April 1862, letters of administration were granted to Lewis II. Stout on the estate of Solomon Bach-man, the obligee in the bill single, who had died June 1st 1842. May 14th 1862, plaintiffs, without withdrawing their demurrer to the plea of “ actio non accrevit infra sex annos” to the amended statement, moved — 1. To amend the record by substituting “Lewis H. Stout, administrator, &c., of Solomon Bachman, deceased, to the use of the original plaintiffs, in place of the original plaintiffs ;” and 2. “ To file in lieu of the amended statement a new declaration.”</p> <p>This declaration was in the ordinary form on a suit brought on a bill single by the administrators of Solomon Bachman, the deceased obligee, in which the names of Catharine Stout, Abraham Stout, and Lewis H. Stout, administrators, &c., of Isaac Stout, deceased, the original plaintiff, did not appear either as use parties, or in any other way. October 8th 1862, the demurrer and motion to amend were argued, the amendments refused, and the demurrer overruled. On the 28th January 1863, judgment was entered on the demurrer for the defendant, as of November 28th 1862,'nunc pro tuna.</p> <p>The plaintiffs assigned here three specifications of error to the record, viz.:—</p> <p>1. That the court erred in refusing to allow the record to be amended, so that the title of the suit should read as follows: “ Lewis II. Stout, administrator, &c., of Solomon Bachman, deceased, to the use of Catharine Stout, Abraham Stout, and Lewis H. Stout, administrators, &c., of Isaac Stout, deceased, v. Michael Meyers, administrator, &c.,.of Abraham Stout, deceased.”</p> <p>2. In refusing to allow the third amended statement or narr., offered by plaintiffs on the 14th of May 1862, to be filed.</p> <p>■ 3. In overruling the plaintiffs’ demurrer, and in giving judgment for the defendant.</p>

<p>Advancement, Proof of hy oral Testimony.</p> <p>1. Where, in a deed of land by a father to his son, the consideration expressed was natural love and affection, services rendered, and a bond for support during life; after the death of the grantor, on distribution of his estate, oral testimony is admissible to explain the attending circumstances of the conveyance, and that it was intended in part as an advancement.</p> <p>2. Whore there had been a prior deed, expressly as an advancement, but which, in fear of assailing creditors, had been cancelled, and a new deed given, in consideration of love and affection, services, and a bond for a life support, and the purpose of the new conveyance was shown by parol testimony, as also, that the intention of advancement was not abandoned; the admission of the evidence was not error, nor the finding of the advancement thereon.</p> <p>3. Though the measure of advancement was doubtful, yet, where the value of the farm conveyed was treated as at least equal to one share of the estate, and there was no complaint on error that this was less than, or in excess of, the proper sum, a decree treating it as a full advancement will not be corrected on appeal, especially where no injustice is shown to have been done to the son, or to his heirs after his death.</p>

<p>Habere facias possessionem, Duty of Sheriff under. — Service of Writ when, set aside. — Judgment in Ejectment against Husband. — Effect, of, as to Title and Possession of Wife. — Husband may defend on Wife’s Title. — Power of Court to enter Plea for Defendant.</p> <p>1. After judgment in ejectment and writ of habere facias issued, it is the duty of the sheriff to execute the writ by ejecting the defendant with his family; and the wife cannot prevent it by setting up title in herself, as it was the duty of the husband to have defended his possession upon her title.</p> <p>2. Where the defendant did not appear on the trial of the ejectment, but after execution of the habere facias the wife appeared, and on petition setting up title in herself and rule granted, the court awarded a writ of restitution, the writ is irregular, having nothing upon the record to justify it.</p> <p>3. But as the judgment against the husband did not decide the question of title in the wife, the order awarding restitution was not reversed, but the plaintiff left to his action against both, especially as upon the trial, on failure of the defendant to appear, the court improperly gave judgment on the plea of not guilty, entered for him.</p>

<p> Set-Off by Maher against Holder of Negotiable Note. </p> <p>A depositor in a bank, as it was about to suspend, obtained on account of his deposit from an officer, an undue note which had been discounted; and afterwards receiving other securities in excess of his deposit, paid back part of the excess in bills of the bank. In an action by him on the note, it was Held:</p> <p>That the drawers could not set off against the note, bills of the bank obtained after the plaintiff’s payment on account of the excess, except as to the balance remaining ; and as that balance arose out of other securities subsequently given to the plaintiff by the bank, and not from the note, which securities were not shown to have been fully paid, the set-off as against that balance was not admissible.</p>

<p>Proceeding in Orphans’ Court not to be reversed, collaterally. — Act of May bth 1841, and April 21si 1846, relative to equitable Ejectments, construed.</p> <p>1. In ejectment, where title was claimed under proceedings in partition in the Orphans’ Court, the record of that court is admissible as evidence, though the petition and the other applications in the partition and sale of the land and confirmation of deed were not under oath.</p> <p>2. Where there has been a sale of the land in question under articles of agreement, part compliance therewith, and, in an ejectment brought to enforce payment of balance due, judgment confessed in 1844 by the vendee to the vendor — to be released on payment of a stipulated sum within one year — that judgment is not, under the Act of 5th May 1841, conclusive against the equitable title of the vendee.</p> <p>3. But as that act is repealed by Act April 21st 1846, which gave the defendant two years after its date to pay the money, commence an action, and enforce the contract; the failure to bring the action within that time, did conclude his rights under the agreement.</p> <p>4. Therefore, in an ejectment, by the holder of title under the vendor, against the heirs of the vendee, brought in 1839, it was held not error to reject, as irrelevant, the offer of the defendants to prove atender in 1858 of the amount of the original judgment with interest and costs, by the heirs.</p> <p>5. The Act of April 21st 1846, being but a modification of an existing remedy, is constitutional.</p>

<p>Landlord’s Right to Rent in arrear out of Proceeds of Sheriff’s Sale of Personal Property, confined to Goods liable to Distress. — Removal of Goods by Tenant, token clandestine and fraudulent.</p> <p>1. A landlord cannot, claim rent in arrear out of the proceeds of a sheriff’s sale of a tenant’s goods, which were not, at the time of the levy, upon the demised premises and liable to distress.</p> <p>2. Where, during a tenancy, the goods of the tenant were removed by his wife openly and in the daytime, and the landlord distrained a part in the place of removal, but did not remove them, he cannot, as against creditors whose execution was issued and levied the day after, claim any portion of the proceeds for rent due.</p> <p>3. Such removal is neither clandestine nor fraudulent.</p> <p>4. The remedy of the landlord was to have returned the goods to the de< mised premises, so that when the sheriff levied, they would have been within the section of the act which authorized the demand for the rent out of the proceeds of the sale.</p>

<p>Order of Removal, when Evidence of Settlement of Pauper. — Penalty for disobeying Order.— Compensation fw support of Pauper after Order of Removal.</p> <p>1. Orders of removal of a pauper from a township to another county, in due form and unappealed from, are conclusive evidence that the last legal settlement of the pauper was in that oounty, and it is the duty of the poor directors there to receive and maintain him.</p> <p>2. The only penalty, under the Poor Law of June 13th 1836, for disobeying an order of removal by those to whom it is addressed, is a fine of §20.</p> <p>3. Where two orders of removal of an insane pauper were disobeyed by the directors of the county to which he was ordered to be removed, they refusing to receive him, the overseers of the township in which he became insane may, under the 23d section of the Act of 1836, on complaint to the Quarter Sessions of that county, recover the sums necessarily expended in maintaining him, though he was able to be removed and the ease was not therefore within the letter of the act.</p>

<p>Error to the Common Fleas of Schuylkill.county.</p> <p>This was an action of assumpsit, by The Overseers of the Poor of Montour township, in the county of Columbia, against The Directors of the Poor and House of Employment of the county of Schuylkill, to recover the money expended by plaintiffs in the “ care, attention, food, clothing, medicine, and medical attendance, costs, charges, and surgery found for and bestowed on John Kashner and his family, paupers, and for the éxpenses of removing them to the almshouse in Schuylkill county,” where his legal settlement was, &c., &c.</p> <p>To this the defendants pleaded non assumpsit, and tender of $250.</p> <p>The case was this: — John Kashner, his wife and five children, became a charge upon the overseers of Montour township, in Columbia county, on the 1st of November 1856. He had lived with his family in Schuylkill county about two years and six months prior to June 6th 1855, about which time he removed into Cattawissa township, in Columbia county. He worked in a stone quarry 'in Montour township, about three miles from his home, in Catawissa township, and on November 1st following, was so much injured while blasting stone, that it became necessary to amputate both legs. He remained a charge upon Montour township with his family from November 1st 1856 until January 12th, following; but on the 13th of December 1856 the overseers applied to two justices of the peace and procured an order of removal, in pursuance of which he and his family were taken to Schuylkill county. The overseers of Schuylkill did not appeal from the order of removal, but on receiving the bill of expenses for maintenance, and considering it exorbitant, refused to pay it. The plaintiffs then brought this action of assumpsit.</p> <p>The defendants requested the court to charge the jury,</p> <p>1. That this court has no jurisdiction of the subject-matter of this suit.</p> <p>2. That the plaintiffs cannot adjudicate in this form of action the legal settlement of Kashner, and the expenses incident to his support and maintenance up to the time of obtaining an order of removal.</p> <p>3. That plaintiffs are not entitled to recover anything in this form of action.</p> <p>The court directed a verdict for the plaintiffs for such sum as the jury thought was fairly due from defendants, subject to the opinion of the court on the question of law raised by defendants’ points, and subsequently entered judgment on the verdict.</p> <p>The errors assigned for defendants were,</p> <p>1. In permitting the plaintiffs below to prove in this form of action the legal settlement of John Kashner.</p> <p>2. In entering judgment on the verdict, whereby they answered all points of the defendants below in the negative.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of covenant, upon a ground-rent deed, brought by the heirs of Sarah Burd deceased, against Jacob Swallow, to recover arrears of ground-rent.</p> <p>The plaintiffs alleged that the testatrix having attempted to devise said ground-rent by a clause in the codicil to her will, which was incomplete and void for uncertainty, she died intestate as to it. The residuary devisees, through defendant, claimed said ground-rent under the general language of the residuary clause.</p> <p>The clause in the codicil is as follows:—</p> <p>“ Item 24. — I give and devise unto , heirs and assigns, the ground-rent of $38 per annum, issuing out of premises granted to Jacob Swallow, in Osbourne’s court, sixty-two feet west of Blackberry alley, and one hundred and five feet south of Walnut street, containing twelve feet in front by fourteen feet in depth.”</p> <p>There were thirty-two consecutive clauses of this kind, from item 14 to item 45 inclusive, and covering in the original codicil about eighty pages of - foolscap. Each carefully described a ground-rentj and devised it unto , heirs and assigns, with a blank for the proper name of the devisee. In this unfinished condition the codicil was executed.</p> <p>The counsel for plaintiff's requested the court to charge that Sarah Burd died intestate as to the ground-rent described in the codicil to her will (item No. 24), in which a blank was left by her for the name of the devisee, and that therefore the plaintiffs, being the heirs of the said Sarah Burd, ought to' have a verdict for the arrears of said ground-rent as claimed.</p> <p>The defendant also requested the court to instruct the jury :—</p> <p>1. That the ground-rent in question passed to the residuary devisees, under the residuary clause of Sarah Burd’s will and codicil.</p> <p>2. That under the deed from Edward Burd to his daughter Margaret Coxe, and in ease of the intestacy of Sarah Burd, another daughter of Edward Burd, only the heirs of the said Edward Burd are entitled to claim the ground-rent in question by descent.</p> <p>3. That payment by defendant’s alienee of the premises charged with the said rent under the judgment in evidence, is a discharge pro tanto of the rent in suit, even if the plaintiffs are otherwise in law, and under the evidence, entitled to claim the same.</p> <p>To the plaintiffs’ point the learned judge replied that he declined so to chai-ge.</p> <p>To the defendant’s first point the learned judge replied that he a.ffimed it, and directed the jury to find for the defendant; but declined to charge on the second and third points. There was a verdict and judgment accordingly; whereupon the plaintiffs sued out this writ, and assigned the ruling of the court for error.</p>

<p>Error to tlie District court of Philadelphia.</p> <p>This was an action of replevin, by Edwin Harmstad against Mrs. Alice Wallace, who avowed for rent in arrear as reserved in one of the four ground-rent deeds, the validity of which was passed upon by this court in the cases of Arrison v. Harmstad, 2 Barr 191, and Wallace v. Harmstad, 3 Harris 462.</p> <p>The material facts connected with these cases will he found in the reports of these cases, and are in substance as follows:—</p> <p>In the fall of 1838 Mathew Arrison agreed to sell to four brothers Harmstad, four adjoining lots of ground, reserving out of each lot a yearly rent of $>60, payable half-yearly on January 1st and July 1st, in every year; the first half-yearly payment was to fall due on the 1st of July 1839. Under the deeds executed in accordance with this agreement, each of the Harmstads entered upon his lot and built a house thereon. The deeds were executed in duplicate, each deed was signed by both parties; a part of the bargain was that the grantees might extinguish their ground-rents at par whenever they pleased. When the deeds came to be executed, one of the four brothers discovered an open space, or unfilled blank, in all eight of the deeds; and in answer to his inquiry, was told by the alderman that it meant that there was to be no limit of time within which the rents should be extinguished. This being in accordance with their understanding, the deeds were executed and delivered — the Harmstads took away their four deeds, while Arrison took away the four counterparts.</p> <p>Some time afterwards an agent of Arrison procured from the Ilarmstads their four deeds, for the alleged purpose of getting them recorded, and while they were with Arrison, or another party beneficially interested in the ground-rents, the same, together with the four counterparts, were, either by Arrison or by some one under him, altered by the filling up of the blank in each of them with the words “within ten years from the date thereof.” In the mean time the first half-year’s ground-rent falling due July 1st 1839, was paid by the Ilarmstads without any knowledge of the alteration. When they paid it they asked for their deeds, and found they had not been recorded. Another agent of the grantor, or of his cestui que use, then carried the deeds to the recorder’s office, left them there, and gave the Ilarmstads the recorder’s receipt therefor ; and it was not until some weeks afterwards, when the deeds came back, that they discovered the alteration. Since that time they refused to pay any more ground-rent.</p> <p>The cases of Arrison v. Harmstad, 2 Barr 191, and Wallace v. Harmstad, 3 Harris 462, having settled that an action of debt on such ground-rent deed, or on the original contract prior to the deed, but supposed to be executed by possession, or for use and occupation, or of covenant on the ground-rent deed, will not lie — that all the covenants in the' deed are gone, and that the estate in the land is- vested in the grantee, freed and discharged therefrom — that the spoliator may lose, but could not gain from his wrongful act, and that an innocent purchaser of the rent is in no better condition, having bought from the spoliator nothing at all, and that there is no similitude between these cases and the case of negotiable paper in third hands, the owner of this deed, Mrs. Wallace, resorted to a distress for rent, on which distress this action of replevin was founded, as above stated.</p> <p>Under the ruling of the court below there was a verdict and judgment for plaintiff; whereupon the defendant sued out this writ, assigning the judgment of the court below for error.</p>

<p>Appeal from the Common Pleas of Northampton county.</p> <p>This was an appeal by Robert J. Black from tho decree of the court below on the account of John Knecht and Joseph Sigman, assignees of Josiah Jones, in trust for the benefit of creditors.</p> <p>The material facts of the case, as found by the auditor to whom the account was referred, were these:—</p> <p>Josiah Jones and Henry Schweitzer were in partnership in the business 'of distilling, from some time in May 1858 until April 1860.</p> <p>On the 21st day of April 1860, the sheriff of said county, by virtue of two executions, Nos. 70 and 71, April Term 1860, at the suit of William S. Smith & Co. v. Josiah Jones & Henry Schweitzer, sold partnership personal property to the amount of $3568.55. Subsequent to the said 21st day of April 1860, Owen Weaver, a constable, by virtue of three several executions against the firm of Jones & Schweitzer, levied upon and sold other personal partnership property of the said firm of Jones & Schweitzer to the amount of $150, or thereabouts. On the 20th day of August I860, the sheriff of said county, by virtue of a writ of venditioni exponas, No. 54, August Term 1860, against Jones & Schweitzer, sold the real estate of the defendants for the sum of $8525.</p> <p>On the 20th of April 1860, Josiah Jones executed a deed of assignment to John Knecht and Joseph Sigman of all his property except so much as was exempt from levy and sale on execution, in trust for the benefit of his creditors, which deed was duly recorded April 21st 1860.</p> <p>At this date there were still outstanding and unpaid to the said firm of Jones & Schweitzer sundry notes and book accounts, which were subsequently collected and disposed of in the following manner: — •</p> <p>Book accounts collected by Henry Schweitzer, . ' $130.81</p> <p>“ “ Josiah Jones, . . 35.96</p> <p>(i transferred by Henry Schweitzer to partnership-creditor, and collected, . . 61.15</p> <p>“ uncollected, ..... 5.60</p> <p>Note collected by Henry Schweitzer, . . . 12.00</p> <p>Note transferred and collected by partnership creditor, 90.00</p> <p>$335.52</p> <p>The proceeds of the sale of the real estate of Leonard Schweitzer, who was surety and endorser for Jones & Schweitzer to Robert Black, on an execution of the Bank of Catasauqua v. Leonard Schweitzer, and paid into court, was distributed in 1860 as follows:—</p> <p>To Elizabeth Laubach,......$774.40</p> <p>To R. J. Black, ....... 574.19</p> <p>Costs,......... 43.12</p> <p>The assignees of Josiah Jones filed their account July 26th 1861, which was referred to Henry F. Steckel, Esq., who was empowered to resettle and make distribution. The auditor reported a balance in the hands of the accountants of $6595.71, less $20, balance on judgment of S. Smith & Co., which was a lien on the real estate of Josiah Jones before the assignment. Deducting this sum, with the expenses of the audit, there was left for distribution the sum of $6418.</p> <p>The testimony showed that Schweitzer was at this time insolvent; that several thousand dollars of the partnership debt remain unpaid, and that the whole of the property assigned by Jones for his creditors was insufficient to discharge his individual indebtedness.</p> <p>The claimants before the auditor and in court were, 1. The private creditors of Jones ; and, 2. The creditors of the late firm of Jones & Schweitzer.</p> <p>Robert P. Black, the appellant, claimed from the assignees of Jones a pro rata dividend on the following notes:—</p> <p>One dated December 23d 1859, drawn by Jones & Schweitzer and Leonard Schweitzer, and endorsed by Robert P. Black, for §600. One dated December 31st 1859, drawn by Jones & Schweitzer, and endorsed by Leonard Schweitzer and Robert P. Black, for §1600. One dated January 14th 1860, drawn by Jones & Schweitzer and Leonard Schweitzer, payable to the'order of R. P. Black, for §1500; and one dated March 21st 1860, payable to Leonard Schweitzer, drawn by Jones & Schweitzer, and endorsed by Leonard Schweitzer, for §1500.</p> <p>On the 26th of May 1860, Henry Schweitzer and Leonard Schweitzer confessed to Black a judgment for §2107.14, No. 240, April Term 1880, to secure the payment of the notes of December 23d 1859, and January 17th 1860; under which judgment, Black received §574.19 out of the proceeds of the sheriff’s sale of the real estate of Leonard Schweitzer. The balance of the judgment and of the notes is unpaid.</p> <p>The auditor awarded the whole sum in the hands of the assignees, to the private creditors of Josiah Jones, to which decision the partnership creditors filed exceptions, which were heard before a special court, by (Pearson, P. J.) of the 12th judicial district.</p> <p>On argument, the report of the auditor was confirmed by the court below, from which decree Robert P. Black took this appeal.</p>

<p>Error to the Common Pleas of Erie county.</p> <p>This was an amicable action in case entered in the court below, in which Matthias Hartleib was plaintiff, and John W. McLane was defendant.</p> <p>While the action was pending the defendant died, when, on motion, Rose McLane and Jonas Gunnison, administrators of deceased, were substituted.</p> <p>The facts of the case were as follows:—</p> <p>On the 15th day of January 1861, Matthias Hartleib placed in the hands of John W. McLane, Esq., then high sheriff of the county of Erie, a fieri facias, issued upon a judgment in favour of Hartleib against Kuntz and Reinger for the sum of $2100. On the day said execution was delivered to him, McLane levied on a stock of goods belonging to the defendants in the execution sufficient to fully satisfy the execution ; took the key of the store, and exclusive charge of the goods, and advertised them to be sold on the 26th day of January 1862, eleven days after the levy. Between the day of the levy and the sale, a large share of the goods levied on were stolen, and the sheriff failed to make the money on the plaintiff’s writ. The plaintiff brought this action to recover his debt, or rather deficiency, from the sheriff, and through his counsel submitted three points to the court, containing the following propositions</p> <p>1. That after a levy by the sheriff upon goods sufficient to pay plaintiff’s debt, a larceny of a part of the goods before the sale ■would not excuse the sheriff.</p> <p>2. That if the sheriff took charge of the goods levied on, and left them in the store for some ten days without looking after them until the day of sale, and a portion of the goods were stolen in the mean time, and in consequence of such larceny the plaintiff failed to get his debt, defendant is liable.</p> <p>3. The seizing of goods in execution to the value of the debt is a discharge of all responsibility on the part of the debtor, whether the goods are sold or not. The sheriff becomes exclusively liable by the seizure; and therefore if after the seizure by defendant of goods enough to pay the plaintiff’s debt, a portion of them be stolen before sale, the plaintiff is entitled to recover.</p> <p>The court below refused to charge as requested, and instructed the jury as follows:—</p> <p>“ We think the foregoing points ask for more than the law will warrant. If it were not so, it would make a sheriff’s liability coextensive with that of a common carrier, while there is no analogy, or at least a very slight one, between the duties of the two. He is more like a bailee, who is liable only for due and ordinary diligence. And if the sheriff in this case exercised ordinary and reasonable diligence, such as an ordinarily prudent person gives over ándito his own property of like character with that in dispute, in the care and safety of the goods in the store, and they were stolen notwithstanding this, he is not liable for the loss. And this question is for the jury to determine.” Which was the error assigned.</p>

<p>Error to the Common Pleas of Erie county.</p> <p>This was an action of replevin, by Matthew R. Barr and George W. Barr against James Hughes and Charles Miller, for two sorrel horses, one gray mare, and an iron safe.</p> <p>Plaintiffs were the lessees of a store and barn belonging to Hughes, from April 1st 1859 to April 1st 1860, at an annual rent of $400, payable quarterly. After January 1st 1860, Hughes placed a landlord’s warrant in the hands of Miller, to distrain for $800, the rent claimed as due for three quarters, under which the property above mentioned was held.</p> <p>The plaintiffs, claiming that the sum for which the distress had been made was paid in whole or in part, brought this replevin. Hughes avowed the distress, and alleged that there was rent in arrear to the amount of $800, which plaintiffs denied.</p> <p>On the trial, the amount due was reduced by the exhibition of a receipt, signed by defendants, for $100 “on account,” but which arose, as defendants averred, from other dealings between the parties outside of the claim for rent.</p> <p>The plaintiffs’ clerk who wrote the receipt, testified that he intended to apply this $100 on account of rent.</p> <p>The plaintiffs requested the court to charge the jury: That the defendants having avowed for $300, rent in arrear, and the evidence showing, and the defendants having conceded, that but $200 were due at the time of the distress, the verdict must be for plaintiffs.</p> <p>The court below (Johnson, P. J.) answered this point in the negative, and instructed the jury to ascertain if any rent was due, and if so, their verdict should be for defendants, and that they should then certify how much rent they find to be in arrear and unpaid; which was the error assigned.</p>

<p>Recording of Mortgages.— When valid.</p> <p>1. Mortgages must be recorded in “ mortgage books,” and are not properly “ recorded” in any other species of book where they cannot be found by means of the mortgage index.</p> <p>2. A certificate under seal, setting forth that the person signing it had deposited deeds for certain lots designated by their number in the town plot in which they were situate, “ as collateral security for a note,” coupled with a contract to convey the lots on failure to pay the note “within a reasonable time,” is a mortgage in Pennsylvania, but if' not recorded in a mortgage book it is. simply equivalent to an unrecorded mortgage.</p>

<p>Construction of Will.— Creation of Estates Tail. — Rule in Equity as to Power of Appointment among several Distributees.</p> <p>1. A testator devised land to a grandson “during liia natural life, and after his decease to the heirs of liis body, their heirs and assigns respectively, in. •such manner and shares as he may see fit to divide it among them, which he shall have full power to do as he pleases.” He having devised the whole of the land to his two sons, save a small portion to the children of a daughter, one of them brought ejectment against one of the sons for her share as granddaughter of the first devisor, the grandson and original devisee, repudiating her devise: Held, That the grandson had under the original will the power to divide the land among the heirs of his body as he chose; that he exercised that power formally and legally, and that the appointment could not be set aside on the ground that it was illusory and unsubstantial.</p> <p>2. The English equity rule, that where there is a power of appointment among several distributees, it cannot be legally exercised except by giving to each appointee a beneficial interest in the fund fairly proportioned to the amount for distribution, and that the appointment of a nominal share to a beneficiary is illusory and void; has never been adopted in Pennsylvania.</p>

<p>Error to the Common Pleas of Bradford county.</p> <p>This was a scire facias, at the suit of John R. McCurdy against Sarah Myers, executrix and devisee of William Myers, deceased, on a mortgage given by him, September 28th 1855, to The Farmers’ Union Insurance Company of Athens, in which there was a verdict and judgment for defendant.</p> <p>The facts of this ease are so clearly stated in the opinion of this court that no other statement is necessary.</p>