Volume 45 — Pennsylvania State Reports

<p>Validity of will of Stephen Girard. — Not in violation of the law against perpetuities. — Distinction in gifts for charitable uses between the “ gif t and its purposes” and the 11 mode of administration.” — Doctrine of cy pres in Pennsylvania.</p> <p>1. In all gifts for charitable uses there is a clear distinction between those parts of the instrument which declare the gift and its purposes, and those which direct the mode of its administration.</p> <p>2. Where a vested estate for a lawful purpose is distinctly given, and there are annexed to it unlawful conditions, limitations, powers, trusts, or restraints; the unlawful conditions, &c., and the estate limited thereon only are void, while the principal or vested estate remains.</p> <p>3. The doctrine of cy pres in Pennsylvania is that by which a well-defined charity, or one where the means of definition are given, as also all devises and contracts, wherein the future is provided for; will be enforced in favour of the general intent of the donor, and with as close an approximation to it as is reasonably practicable.</p> <p>4. The residuary devise in the will of Stephen Girard to the City of Philadelphia does not create a perpetuity, and being a present gift for a present and lawful purpose, and consequently a vested and executed trust, it is not affected by any subsequent unreasonable or impracticable direction in the will in regard to the management of the property devised, because in such cases equity will substitute other modes of effectuating the main and primary intention of the testator.</p> <p>5. Nothing is denounced by the law as a perpetuity unless it restrain the vesting of an estate or interest for the period of a life or lives in being, and twenty-one years and nine months thereafter.</p> <p>6. The heirs of Stephen Girard are now concluded by the decree of the United States court in the case of Yidal v. Girard, 2 Howard, in which the validity of the trusts created by this will was established.</p>

<p>Assumpsit for money had and receivedj against one to whom money was delivered by debtor for plaintiff. — Act of April ‘ffith 1855, as copied from Statute of Frauds, construed.</p> <p>1. One in whose hands money is placed by a debtor for the payment of a debt, is liable in an action for money had and received, at the suit of the creditor to whom the payment was to have been made.</p> <p>2. As the defendant was liable as agent rather than as surety, it was not necessary that his promise should have been in writing, and hence the Statute of Frauds does not apply.</p>

<p>General Manufacturing Law of 1849. — Liability of stockholders.— Charter evidence as to who are stockholders. — Liability, how avoided. —Disavowal of membership. — Account-books of corporation, when evidence. — Members need not all be joined as defendants. — Mistake in organization, áse., no defence.</p> <p>1. Ia an action to enforce the individual liability clauses of the General Manufacturing Law of 7th April 1849, and supplements, the charter of incorporation is prima, facie evidence that all the persons named therein were, at the commencement, members of the corporation.</p> <p>2. If a person named in the certificate and charter as a member, afterwards acts as such, or, upon discovering the use of his name, does not promptly disavow it, he cannot evade liability as a member by showing that he was not one in fact and never paid in any stock: the disavowal must be immediate, or he will be deemed as ratifying the relation as to creditors.</p> <p>3. Where a company was composed of the creditors of an insolvent firm, the fact that several of the persons named as members had judgments against the firm which were satisfied by their attorney in stock of the company without subsequent disavowal of his act by his principals, was some evidence of their ratification of his subscription for stock, not needed in chief, but rather in rebuttal, as corroborative of the prim& facie evidence of the charter.</p> <p>4. A ledger found after the company had failed, with other papers of the company in the office of a director, and he had left the state, and which that director had produced in other proceedings as the ledger of the company, is sufficiently proved, for admission, in evidence as such: and entries therein, showing the nature and amount of the indebtedness of the company to the plaintiffs, are competent evidence, upon their part, of the fact.</p> <p>5. The individual members sued cannot set up their own faults or mistakes of organization as a defence against creditors: therefore evidence that no part of the stock had been paid in, and that the property that they were to have obtained from the firm was sold on execution by judgment-creditors, was irrelevant.</p> <p>6. Under the Act of Assembly a recovery may be had against such of the parties sued, as are proven to have been stockholders, though some are included against whom that fact is not proved.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was a feigned issue under the Sheriff’s Interpleader Act, in which William Hoskin was plaintiff, and Joel Woodward was defendant.</p> <p>The material facts of the case were as follows:—</p> <p>On the 13th of October 1857, Thomas B. Woodward executed and delivered to Joel Woodward his bond, with warrant of attorney to confess judgment, on which judgment was entered same day for the sum of $9000.</p> <p>At the same date, as security for said sum, he executed and delivered to the said Joel Woodward a mortgage covering his “machine-shop and mill” on the corner of New Market street and Germantown road, which was duly recorded. In this mortgage none of the machinery in the shop was mentioned.</p> <p>On the 24th of November 1859, Thomas B. Woodward sold a lathe which was in the shop at the time of the execution of the mortgage, to William Hoskin for $650, to be credited on an account of a claim 'wliich Hoskin held against him. Possession of the lathe was immediately delivered to Hoskin, by whom it was removed to other premises, on the opposite side of New Market street. To March Term 1859 an execution was sued out by one Mecutchen against Thomas B. .Woodward, under which the real estate of the defendant at the corner of New Market street and Germantown road was levied on and condemned.</p> <p>On the 2d of April 1860, an execution was sued out by Joel Woodward on his judgment against Thomas B. Woodward of October 13th 1857, for a balance of $2812.50, under which the lathe which had been sold and delivered to William Hoskin was taken as the property of the defendant.</p> <p>Hoskin claiming to own the lathe as purchaser from Woodward, this issue was directed by the court to try the question of ownership.</p> <p>Under the ruling of the court there was a verdict and judgment in favour of the defendant, whereupon the plaintiff sued out this writ, and assigned for error,</p> <p>1. The admission in evidence of mortgage of Thomas B. Woodward to Joel Woodward, of October 13th 1857.</p> <p>2. The admission in evidence of fi. fa., Mecutchen v. Thomas B. Woodward, of March Term 1859, No. 1146.</p> <p>■ 3. The refusing to allow plaintiff to give in evidence a prior mortgage of Thomas B. Woodward to John Starrett. The sale under proceedings in same before the transfer to plaintiff of the lathe in question. The sheriff’s return, condition of sale not complied with, and sale under al. lev. fac., and the subsequent sale of lathe to plaintiff, by sheriff to John Starrett, and directing a verdict for defendant.</p> <p>1. That fixtures while annexed to the freehold are subject alike to the lien of mortgages and judgments, but that the mortgage or judgment creditor acquires no title to or right to control the status of the fixtures until entry or levy.</p> <p>2. That by entry or levy the creditor may acquire a special property in or right to control the possession of the fixture, subject to the general property of the owner, who, on payment of the debt, has an immediate right of possession of the property mortgaged or levied on.</p> <p>3. That until entry by the mortgagor or levy by the judgment-creditor, the tenant of the fee in possession may (unless restrained by writ of estrepement) sever fixtures and so reconvert them into personalty. That he may dispose of them directly by a private sale, or indirectly by allowing them to be sold under execution as personalty, without actual severance, discharged of the lien of the mortgage or judgment; and,</p> <p>4. That as a necessary corollary to the right of the general owner as stated in the third proposition, it follows that notice of the existence of a mortgage or judgment, either actual or constructive, by reason of the record, to the purchaser from the tenant of the fee of a fixture, cannot make the sale fraudulent and therefore void, either as respects .creditors generally or as respects the judgment or mortgage creditor contesting it.</p>

<p>ERROR to tbe Common Pleas of Northampton county.</p> <p>This was an action on the case brought by Frederick Searles, Parmelia Beard, Esther Searles, John Everhard and Thryza his wife, in right of said Thryza, heirs of Elizabeth Searles, deceased, against John Wolleshlare. The plaintiff declared in assumpsit on a promissory note, dated Lower Mount Bethel, March 23d 1839, for $17.50, payable to the heirs of the estate of Elizabeth Searles at her death, and signed by John Johnson, attorney, and John Wolleshlare. On the trial the plaintiff gave in evidence the note declared on, proving the death of Mrs. Searles, and that the plaintiffs were her heirs; and rested.</p> <p>The defence was twTo-fold :</p> <p>1. That the defendant being but a surety, the plaintiffs had the means of satisfaction within their control, but refused to avail themselves of them, and allowed them to pass out of their reach, by means of which they lost their debt.</p> <p>2. That the defendant notified the plaintiffs to collect the note in suit from Johnson the principal debtor, and accompanied the notice by the declaration that he would no longer be responsible on the note, and that the plaintiffs failed to comply with this notice and in consequence lost their debt.</p> <p>The evidence relied on in support of this defence was as follows :—</p> <p>Jesse Wagner, a witness produced by defendant, testified thus: — “I knew John Johnson; he is now dead ; at and before the time of his death he lived at Martin’s Creek, Northampton county; he died the same year that Mrs. Searles did, in the fall or winter following; I think he had a store at Martin’s Creek; I think he was a brother of Mrs. Searles; I was present at a meeting some weeks after Mrs. Searles’s death when Wolleshlare and the heirs were present; the meeting was at Everhard’s house ; it was two, three, or four weeks after Mrs. Searles’ death; they met there and settled with a Mr. Troxell for funeral expenses, things got out of his store; they paid Mr. Everhard I think for his trouble in taking care of Mrs. Searles during her sickness; Mr. Johnson had some $20 of interest money left that came due that first of April preceding, after paying these expenses; some one asked Johnson whether that was sufficient to pay him for his trouble in taking care of the old lady’s money; he said it was; this interest money was in his hands; he had not paid it over; he was her trustee or agent as I understood it; they were there I should think at least three hours; a note on which Wolleshlare was security for Johnson to the old lady was spoken of; I think the amount of this note was something like $800; Wolleshlare said he was security on such a note; something was said as to how that money was invested; Mr. Christian Butz had something like $525 I should think; it was said Johnson held a note against him for the amount; there was one note against Wolleshlare for $125 or $150; there was another note against William Johnson for $100 I think; I knew Christian Butz by sight and reputation; he lived some three miles from that place; he was reputed to be a man of considerable wealth ; I couldn’t say what William Johnston was reputed to be worth except that he was a man in moderate circumstances; he was reputed to be able to pay his debts; Wolleshlare was reputed to be well able to pay his debts; they were all reputed to be solvent and responsible persons; at least I knew nothing to the contrary. Wolleshlare requested and urged the heirs to take these notes. Johnson expressed no particular unwillingness to give up these notes; Wolleshlare urged them to have these notes transferred to themselves or have the money collected; Johnson said there would be some difficulty in so doing, but if they wished it he wouldn’t object. The objection to collecting the money that Johnson spoke of was that it was after the first of April; I don’t recollect any other objection he spoke of.”</p> <p>Question. — “ When Mr. Wolleshlare urged upon the heirs to have the notes transferred to themselves or to collect the money what, if anything, did he say as to being no longer responsible himself as surety upon Johnson’s note ?”</p> <p>Answer. — “ As near as I can recollect he used language something like this or of similar import I should say — ‘ The note is out and the money is where you can make it perfectly secure to yourselves, and I am determined to stand no longer on the note, and you must proceed to collect it.’ I mean proceed to collect these notes; I mean the note on which Mr. Wolleshlare was security of course. In saying I meant these notes I referred to the previous conversation as to the notes against Butz and others. I did not refer'to the note then that Wolleshlare required the heirs to collect from Johnson; I didn’t see any of these notes in the course of the conversation during the day. I heard Wol-leshlare say to Everhard before that several times, that he did-not think John Johnson perfectly secure. At those times he repeated the same request and that they should collect the money from John Johnson.”</p> <p>Gross-examined. — “Wolleshlare suggested to these heirs that they should take this note of Butz from Johnson’s hands; he said he was ready to pay his own note at any time ; there was no proposition made at that time as to William Johnston’s note; William Johnson made a proposition to Everhard; I don’t know whether it was that day or not, that if such an arrangement was entered into he wanted Everhard to take this note; can’t say whether William Johnson was there that day or not; I may have testified when my deposition wras taken last time that William Johnson was present that day; when Wolleshlare said that they must collect their money, that ho at the same time proposed to go with them to Butz’s; I don’t think I swore so the last time I was examined; I swore that he proposed a plan by which they could get their money into their own hands, that they should take Butz’s note from Johnson; I said William Johnson made the proposition to Everhard that he should take his note, but whether it was that day or not I can’t say now; I can’t tell the pregise language that Wolleshlare used when he spoke of collecting the money; he told them to take those notes; this was one plan he proposed. The other was that they should have Johnson collect the money from Butz and hand it over to them ; I do not say that he directed the parties to sue Mr. Johnson; I recollect Mr. Wolleshlare made the remark that he supposed Butz could pay the money at any time; he gave no directions to have Butz sued; I don’t know that he gave any reasons for not suing Butz ; I heard no directions given to have Butz or Johnson sued. The funeral expenses at the store were settled at that time; I think Johnson paid Everhard $12 for taking care of Mrs. Searles ; I don’t know that either the Butz or Johnson note were called for at the time of this conversation; I didn’t see them; I do not recollect that Johnson said he had a year to settle in; I don’t know that Wolleshlare said he, Wolleshlare, had no money at that time, I don’t know, I may have said in my last deposition that William Johnston was by during a part of this conversation ; I can’t be definite about it; I stated in my last deposition that I thought I had no conversation with Everhard after this conversation with the heirs, but think now I did say something to Ever-hard about it afterwards; I don’t recollect that any one but these parties spoken of were present at this conversation ; I was absent a part of the time, but don’t recollect that I saw Esquire Huns-berger there ; Everhard’s wife was there; can’t say whether his daughter was in that room ; Frederick Searles, Esther Searles, Mr. Everhard were the heirs present; can’t say whether they were present all the time; they were there most of the day.”</p> <p>lie-examined. — I don’t know whether Esther Searles is a married or single woman or what she is reputed to be in the family.”</p> <p>The court below (Maxwell, P. J.) instructed the jury that thp notice as proved by Jessie Wagner was not sufficient in law to relieve the defendant from liability, and directed them to find for plaintiffs, which was done. Judgment having been entered on this verdict, the defendant sued out this writ -and assigned for error the charge of the court as above stated. There were several other errors assigned, but they were not considered by the court.</p>

This was a scire facias to November Term 1869, by William Hartley, to revive and continue the lien of a judgment entered as No. 422, of November Term 1857, against E. H. Kirlin, Reuben Godshall and James S. Slocum, administrator of R. A. Oakford. The original judgment was against Kirlin, Godshall, and Oakford. While the suit was pending, the death of Oak-ford was suggested, and his administrator, Slocum, substituted.

<p>Quo warranto to try right to office must he brought during the official lifetime of the officer.— Officer de facto will he considered also de jure as to all official acts, unless judicially removed before expiration of term.</p> <p>1. If an election for managers of a corporation be not disputed during thoir term of office by quo warranto, and they are permitted to act throughout thoir term as managers de facto, the legality of the next election cannot be questioned for any vice or irregularity in the first.</p> <p>2. Where the charter did not fix the place at which the annual elections should be held, the board of managers for the time, had the right to fix it as officers de facto: their title could only be tested by quo warranto brought in the lifetime of thoir office.</p> <p>8. A writ of quo warranto brought within the term of an office may be tried after the term has expired: but title to a past and defunct office cannot be tried in a proceeding instituted, not against incumbents during its lifetime, but against those succeeding the next year.</p>

<p>ERROR to the Common Pleas of Monroe county</p> <p>This was an action on the case, brought by Philip M. Bush against William E. Brown, to recover damages sustained by plaintiff by reason of the erection of a dam by defendant across Marshall’s creek, whereby the water was swelled hack upon the land of the plaintiff. The parties own adjoining land on said creek, Bush above and Brown below.</p> <p>The division line between them crosses the creek 10 feet on one shore, and 17 feet on the other below the stone abutments of a wooden bridge, on the public road from Stroudsburg to Milford. There had been an old bridge at this place prior to 1831, in which year the abutments of the present bridge were built. Previous to 1831, there was an ancient fording across the creek just below the division line. Immediately below the ford, in the creek, was a row of stones, which had been thrown out of the track to make the fording more easy, raised and tightened by the accretions of the stream from year to year. In, 1843 Brown built a dam across this creek, about 100 feet below the division line. In the summer of 1859 he took out this dam and put in another, which he closed on the 5th of November of that year. It was the swelling back of the water on Bush’s land, occasioned by this dam, for which he brought suit.</p> <p>A number of witnesses were examined as to the height of the water before and after the erection of the dam complained of, whose testimony was;j as usual in such cases, very unreliable and conflicting, owing to the high or low stage of the water in the stream when seen by them.</p> <p>The defence was that the land of the plaintiff was not flooded at all, or at most not more than it had been for the last twenty-one years.</p> <p>The court below (BaRRETT, P. J.) charged the jury as follows:—</p> <p>“ This is an action of trespass on the case, for nuisance. The plaintiff and defendant are the owners of adjoining tracts of land lying on the waters of Marshall’s creek. The defendant is the owner of a mill, and in his use of the water-power of the stream, is charged with infringing upon the rights of the plaintiff.</p> <p>“The plaintiff being the owner of the land on the margin of the stream, on both sides, is entitled to the water-power of the creek, if he chooses to use it. If he does not, he is entitled to have the stream as nature placed it there, so far as it passes through or over his land. The defendant has no right to interfere with the descent of the water, although such interference may work no actual injury to the plaintiff. líe has no right to raise the water on his land, even if it be kept within the banks of the stream and does not injure a foot of his land.</p> <p>“ [The defendant had a right to erect his dam across the stream and use the water as he pleased, so long as he did not interfere with his neighbour above. He had the right to back the -water to the line of his own land; but not one inch beyond it.] This is not confined to any particular stage of the water, but must be applied to the usual and ordinary condition of the stream.</p> <p>“ The plaintiff can only claim for six years prior to the bringing of this suit. From the 19th day of November 1863, until the 10th of November 1859, he may claim.</p> <p>“ [Whatever evidence has been given of the condition of that stream before and after the dates named, has been with a view of showing its actual situation during that period, and for no other purpose. You will, therefore, view it in that light alone.]</p> <p>“ [It was necessary to show the exact height of the stream, before the dam was built, and that, necessarily, carried us back some eighteen or nineteen years.] Evidence has also been given, in reference to the same thing, since the beginning of this suit, but it has been under a promise to show that no change had taken place. It is important, therefore, that you only consider such evidence, so far as it throws any light upon the situation of the stream, and the height of the water during the six years.</p> <p>“ [It is contended that the stone row, made by the use of the fording, formed a dam in the stream. The evidence is, that a few large stones were removed from the wagon track in the bed of the stream, to make the fording more easy. The inference is, that it was either done by the supervisors of the township, or by those using the fording for their own convenience. It was done long before the defendant was the owner of the water-power below. Even if it did form a stronger ripple, and impede the water to some extent, it was not such a construction as would acquire a right by lapse of time. Nor can the defendant appropriate it for his benefit, further than it may have worked a change in the bed of the stream.] It was not kept up or maintained by him; on the contrary, he removed it for his own convenience. But conceding that the fording did form a dam, and raise the water, has or has not the defendant’s dam raised the water on the plaintiff’s land, even above what is claimed for that stone row?</p> <p>“ The evidence of ripples in the stream is only valuable in showing the early condition of the stream, and the changes, if any, produced by the current of the water.</p> <p>“[ Surveys have been made, and are in evidence showing the fall in the stream on the premises of both. These are evidence so far as they go. Theories are good until overthrown by actual, visible facts. If that be the case here they must yield. Water will find its level with more certainty than science can do the work. The instrumental levelling does show that Mr. Brown has more fall upon his land than he has of elevation at his dam, but if that does not tell the height of the water set back, as clearly shown by the water itself, then the facts demonstrated upon the ground must govern.</p> <p>“ The question, then, under all the evidence, is a question of fact for the jury. Did the defendant’s dam, at any period during the six years, flow the water back on the plaintiff's portion of that stream ?] How do you account for the rising and falling of the water at the bridge and above it, on the same day ? There was a cause for it. Was it by the filling and lowering of Brown’s dam, or was it from some cause above the bridge ?</p> <p>“ The jury are instructed, 1. That if the condition of that stream, in reference to the height of the water on plaintiff’s premises, has undergone no change by means of the erection and maintenance of Brown’s dam, then their verdict should be for the defendant.</p> <p>2. [“ That if it has been changed, and the water flowed back to any perceptible height above what it would be if the dam was not there, or above what it would have been during the six years claimed for, although it does the plaintiff no actual injury, their verdict must be for the plaintiff] for nominal damages. No actual damage has been shown, and only nominal damage can be recovered.”</p> <p>Under these instructions there was a verdict and judgment for plaintiff for fifty cents damages. Whereupon the defendant sued out this writ, assigning for error so much of the charge of the court below as is enclosed in brackets.</p>

<p>ERROR to the Common Pleas of Schuylkill county.</p> <p>This was an action of account render by Isaac Addams against Alexander P. Tutton, in which judgment quod computet was entered by consent, and William L. Whitney, Esq., appointed auditor to ascertain the amount due, and make report accordingly.</p> <p>Before the auditor, the defendant was offered as a witness, and his competency being objected to by the plaintiff, the auditor asked instructions from the court, who decided that he was incompetent as a witness in his own behalf.</p> <p>The parties, by articles of agreement dated April 10th 1855, had entered into partnership for the purpose of manufacturing lumber, upon a tract of land in Union township, Schuylkill county, belonging to Addams, which was to continue five years. On the 19th of April 1856, Addams filed a bill of equity in the Court of Common Pleas of Schuylkill county, of No. 3, June Term 1856, against Tutton, in which he complained of neglect and mismanagement, alleged misconduct and incompetency on the part of Tutton, and prayed that an account be taken, a receiver appointed, and a decree of dissolution of copartnership be made by the court; an answer and a replication were filed, depositions were taken, and after argument the 22d of May 1857, the bill was dismissed at the costs of the complainant.</p> <p>On the 16th February 1857, the present action of account render was brought, in which, on the 14th November 1860, judgment was entered as above stated. It was contended before the auditor, on behalf of the defendant, that the institution of the proceedings in equity above mentioned, and the dismissal of the complainant’s bill upon its merits, was a bar to the action of account render, or if not a complete bar, then that only matters arising subsequent to the dismissal of the bill in equity could be taken into account in the present action; and further, that no matters arising subsequent to the institution of the action of account render could be taken into account by the auditor.</p> <p>The plaintiff insisted that such a plea could not be urged before the auditor, after the entry of the judgment of quod computet by confession, and after an issue of law at the request of the defendant was certified by the auditor to the court, who overruled the objections of the defendant, and decided the issue in favour of the plaintiff, and to which no exception was taken by defendant. The whole partnership transactions were inquired into by the auditor, and no exception was taken to the testimony offered and admitted by him. On the 22d of March 1862, the auditor’s report was filed, in which a balance against the defendant was found of $1931.10. This report was confirmed on the same day by the court, and judgment was entered accordingly, without prejudice, however, to the right of the defendant to file exceptions, provided he had such right at the time of the entry of the judgment. On the 25th March 1862, exceptions were filed by the defendant to the report of the auditor. On the 5th of April, 3d of November, and 15th of November 1862, additional exceptions were filed, those of the last two dates being subject to a rule taken by plaintiff on October 20th 1862, to show cause why the exceptions of defendant should not be stricken off for reasons appearing on the face of the record. On the 13th of November 1862, a rule was granted, on behalf of defendant, to show cause why the report and account of the auditor should not be remitted to the auditor, for the purpose of correcting errors committed by him in taking into consideration the evidence of claims subsequent to the 16th of February 1857, and other matters not within the period specified in the declaration of the plaintiff. On the 29th of November 1862, the rule taken by the plaintiff was made absolute, and that taken by defendant was discharged.</p> <p>The following specifications of error were filed for the defendant below, who was plaintiff in error:—</p> <p>1. The court erred in deciding that the defendant was not a competent witness before the auditor.</p> <p>2. The court erred in overruling the objections of the defendant, and deciding the issue of law, certified by the auditor, in favour of the plaintiff.</p> <p>3. The court erred in striking off the exceptions to the report of the auditor, filed by defendant.</p> <p>4. The court erred in refusing to remit the report and account to the auditor, for the purpose of correcting the errors apparent therein.</p>

<p>Appeal from the District Court of Philadelphia.</p> <p>This was an appeal by George E. Taylor from the judgment of the District Court for the city and county of Philadelphia, affirming the report of Charles Gibbons, the auditor appointed to distribute the proceeds of a sheriff’s sale of the personal property of the firm of Meyer & Warne, who were manufacturers of plated ware, and carried on that business in Philadelphia for several years prior to the date of the executions hereafter mentioned.</p> <p>Five judgments were entered by confession in the District Court against them upon sealed notes or bonds, as follows, viz:—</p> <p>George Miller v. Meyer & Warne, D. C., D. S. B. M. 60,</p> <p>No. 92, for $5000</p> <p>“ “ 93, “ 5000 Samuel Battm v. U</p> <p>“ “ 94, “ 5000 Do. v.</p> <p>“ “ 109, « 10,000 H. B. Eairman v. u</p> <p>“ “ 114, “ 7000 u</p> <p>Subsequent judgments were obtained against the defendants, among which is that of the appellant’s firm, N. & G. Taylor. Upon all these judgments executions were issued, under which the defendant’s personal property was sold by the sheriff; the executions upon the said five judgments being issued a few days prior to those of the subsequent judgment-creditors, the proceeds of sale were paid into court. N. & G. Taylor applied to the court below for an issue to try the question of the lona fides of said judgments. The auditor appointed to distribute the fund reported that the judgments of Henry B. Eairman were fraudulent and void as against the subsequent judgment-creditors, and that they should be excluded from any share of the fund. He reported in favour of the judgments of Miller & Battin, and distributed the fund to tliem, and a small balance to the next judgment-creditor, Messrs. Trainor, Jones & Co.</p> <p>The judgment-creditors subsequent to Fairman, claimed the whole fund, and denied the validity of the said five judgments, and contended they were sall fraudulent and void. They alleged that the bonds upon which these judgments were entered, were given by Meyer & Warne, in pursuance of a conspiracy between said firm and H. B. Fairman, the object of which was to get the property of the appellants and others into their possession, and to screen it and the other effects of Meyer & Warne from creditors, and to convert the assets so obtained to their own use, by selling them cheap for cash — by enabling Fairman to levy — and by giving his friends and creditors liens thereon. The facts as proved before the auditor, and substantially reported by him, are as follows:—</p> <p>Meyer & Warne were manufacturers of plated ware, and had a factory in Prune street and a store in Chestnut street, Philadelphia. In the regular prosecution of their business they had occasion for large quantities of pig tin.</p> <p>At various times between September 1859 and March 1860, the said firm purchased on credit from N. & G. Taylor and others large quantities of pig tin, ostensibly for use in their business. It was delivered at their factory in Prune street. The purchases between the said dates mentioned amounted to upwards of $25,000. Under the fictitious or assumed name of J.'B. Boeder this tin was from time to time shipped to New York by H. B. Fairman, or his firm, Fairman, Bowen & Co. (who were dry goods merchants), consigned to a Mr. Morris Bichter (also a dry goods merchant), sold by him below the market price for cash, and the proceeds, amounting to about $20,000, remitted from time to time to Fairman or his firm. “Fairman requested Bichter not to tell any one where the tin came from, and their proceedings were studiously concealed from the creditors of Meyer & Warne.”</p> <p>Other facts were proved tending to show a fraudulent combination.</p> <p>While these transactions were going on Meyer & Warne gave to Fairman the five judgment-notes above mentioned.</p> <p>Two of these, dated respectively January 9th and 10th 1860, for $10,000 and $7000, were made payable one day after date, to Fairman or his assigns. Two others, dated February 18th 1860, for $5000 each, were payable one day after date to Samuel Battin or assigns, and one of same tenor, date, and amount is made payable to George Miller or assigns.</p> <p>The five judgments above mentioned were entered on these notes in favour of the respective payees, and execution issued as above stated. After Eairman got tbe notes be disposed of them as follows:—</p> <p>On tbe two payable to bimself be entered judgment as above.</p> <p>As to tbe Miller note tbe auditor reported that “ Fairman bad borrowed for bis own use tbe notes of Mr. Miller’s firm, amounting to $5168.34, and bad given to the firm in exchange bis own notes for tbe same amount. After this exchange of notes, and before any of them matured, be obtained tbe judgment-note of Meyer & Warne above mentioned, in favour of Miller for $5000, and delivered it to him as security for tbe payment of bis notes, which Miller’s firm then held. Mr. Miller entered judgment on Meyer & Warne’s note on 17th March 1860, and issued bis execution on same day, which was before any of tbe exchange notes fell due.”</p> <p>As to tbe Battin notes the auditor reported that “Battin and Eairman bad been in tbe habit of exchanging notes, and each held the notes of tbe other for $9600. Eairman proposed to give Battin in exchange and satisfaction of bis (Fairman’s) notes for $9600, tbe two judgment-notes of Meyer & Warne above mentioned for $5000 each. Tbe proposition was accepted by Battin, who accordingly surrendered Eairman’s notes to him, and received tbe judgment-notes of Meyer & Warne.”</p> <p>On these, judgment was entered in tbe name of Battin, as above.</p> <p>Tbe auditor reported as matter of fact that there was a collusion between Eairman and Meyer & Warne to defraud tbe creditors of tbe latter, and on that ground be rejected Fairman’s claim on the notes held by him.</p> <p>He reported that “notes were given at a time when Eairman, Bowen & Co. were receiving from New York large remittances on account of tbe proceeds of tbe sale of the tin, purchased by and delivered to the defendants, shipped to New York by Fair-man, under an assumed name, and disposed of by his instructions at prices less than could have been obtained for it in Philadelphia. The amount remitted from that source to Fairman’s house was upwards of $20,000. There was no attempt by Fairman to explain these transactions, continued from September 1860 until March 1861, or to account for the money. They are too plainly marked with fraud to be overlooked. They indicate a deliberate design on his part and that of the defendants to cheat the creditors of the latter, and they taint every other transaction in which they were concerned, which could be used for a similar purpose.” He was therefore of opinion that Fairman should present very clear proof of consideration for the judgments, and that, in the absence of such proof, his executions should be set aside as fraudulent.” After referring to some evidence by Fairman he added: “Your auditor is not satisfied with this evidence. He considers it incumbent on Fairman to make out a clear case, or at least to explain why he is unable to do it.</p> <p>“ He does neither the one nor the other, and stands mute when the fact is developed that between the 9th of September 1860 and the 1st of March 1861, he received upwards of $20,000 from the sale of property belonging to the defendants. Your auditor is therefore of opinion that his executions should not stand in the way of subsequent execution-creditors, and reports that his claim in the fund ought not to be admitted.”</p> <p>In reference to the Miller & Battin notes, the auditor decided that the fraud of Fairman and Meyer & Warne did not affect them — that “ there was nothing fraudulent on the part of Miller in accepting the judgment-notes of the defendant as security for the payment of notes loaned, or to be loaned, by him to Fairman. It does not appear that either Miller or Battin had any knowledge whatever of the transactions between Fairman and the defendants respecting the tin sent to and sold in New York. Assuming them to have been fraudulent, or intended to defraud the business creditors of the defendants, the fraud cannot vitiate other transactions with other and innocent parties, who received the bonds or judgment-notes of the defendants from Fairman in good faith. Your auditor does not think it material to inquire whether any money consideration for those judgments existed, as between the defendants and Miller & Battin.”</p> <p>Miller & Battin obtained their notes through Fairman, to whom they were given by Meyer & Warne in the first instance.</p> <p>It did not appear that Meyer & Warne had any dealings or intercourse directly with Miller & Battin. Also that the facts set forth in appellant’s prayer for “ an issue” were substantially proved.</p> <p>The following exceptions were filed to the auditor’s report:—</p> <p>1. The auditor erred in not deciding that the judgments in favour of George Miller and Samuel Battin were fraudulent as against the subsequent creditors of Meyer & Warne, having been given to them by Henry B. Fairman in pursuance and as part of one plan or conspiracy between said parties to place property acquired by defendants apparently in conducting a legitimate business, out of the reach of their creditors, and to hinder and delay them, and in not distributing the fund in court without regard to said judgments.</p> <p>2. The auditor erred in not deciding as in above exception mentioned, notwithstanding that he found the facts stated in the affidavit of Nathan Taylor praying for an issue, are substantially as reported by the auditor.</p> <p>3. The auditor erred in reporting as a fact that Meyer & Warne chose to extinguish Fairman’s liabilities to Miller & Bat-tin by giving these judgments, whereas in fact Meyer & Warne had no dealings with either Miller or Battin, and the judgments were confessed to Eairman, and in pursuance of a fraudulent conspiracy as aforesaid, without any consideration whatever being given by either Miller or Battin.</p> <p>The court affirmed the report of the auditor, and refused the issue prayed for. Whereupon this appeal was taken, and the following errors assigned:—</p> <p>1. The court erred in awarding the fund to the judgments of Miller & Battin.</p> <p>2. In not awarding the fund to the appellant and to the executions of the same and subsequent dates.</p> <p>3. In refusing to award an issue as prayed for by the appellants.</p>

<p>Construction of devise.— Conversion a question of intention. — Proof of intention must he clear, not inferred from power to sell merely. — Act of February 24th 1834, relative to sales by executors, construed.</p> <p>1. Conversion is a question of intention; and to effect it by will, the direction to convert therein must be positive and explicit.</p> <p>2. A bare power to sell, given to executors by will, does not operate as a conversion.</p> <p>3. The Act of 24th February 1834 was not intended to break descents or work a conversion of real estate over which a naked power of sale had been given to executors, but only to enable them to preserve and dispose of the estate as though an interest had been devised to them instead, leaving the question of intention to convert, to depend upon the will'of the testator.</p>

<p>ERROR to tbe Common Pleas of Schuylkill county.</p> <p>This was an ejectment by Francis J. Parvin against Benjamin Capewell, for a bouse and three lots in St. Clair, Schuylkill county. The plaintiff claimed title by virtue of a deed from the sheriff to him as the property of the defendant. The defendant alleged that the title to the property was in his wife, Joanna Cape-well, and that the property belonged to her. Three several deeds were read from J. and S. Bennison and wives to Joanna Cape-well, for the three lots in question, but the plaintiff alleged that the purchase-money paid to the grantors for the lots, was the money of the defendant, and that the deeds for the lots were executed to the wife, and the title vested in her to hinder, delay, and defeat the creditors of the defendant in the collection of their debts, and this was the question to be decided.</p> <p>On the trial, after the plaintiff had shown title as vendee of the sheriff, the defendant proved that he was a miner; that he came to this country from England with his wife in 1833; that he and his wife visited England in 1837, and on their return to this country in the same year, they were accompanied by Mrs. Capewell’s sister, who testified that on the passage from England she saw in Mrs. Capewell’s possession, some money in American gold, American bank notes and silver, and there might have been some sovereigns among it; that Mrs. Capewell lent her some money on the passag-e to buy provisions; that afterwards, in 1841, when the defendant was away at work, Mrs. Capewell lived with her, and then showed her some money; Mrs. Capewell said it was a thousand dollars; .it was in gold and silver; Mrs. Capewell said the defendant had given it to her; Mrs. Capewell kept the money in a bag. This witness also proved that it was the common practice for English miners to give their earnings to their wives to keep for them; that the deféndant was an honest, industrious working miner.</p> <p>It was also proved that Mrs. Capewell lent small sums of money to several families on the passage from England in 1837, to buy provisions. The defendant also proved that in the year 1846, Mrs. Capewell left a bag of money (contents not known) with a neighbour when she and her husband locked up their house, and went to some distance on a visit. The man with whom she left the bag of money was an English miner, who handed it to his wife for safe-keeping. And on Mrs. Capewell-’s return, after a few days’ absence, the bag was returned as it had been received. He also proved that about twelve years before the trial, Mrs. Capewell was seen coming out of the Miners’ Bank with some silver and gold, which was tied up in her apron, and which she took to a store in Pottsville. That in the year 1846 he commenced mining on his own account, in company with Samuel Capewell, John Dovey, and John Ray, under the firm name of Capewell & Co., each one advancing about five hundred dollars as his share of the capital, and each working in the mines. In the year 1847, the firm made money. John Ray left the firm in 1847, and Francis J. Parvin came into it. The firm name was then changed to Parvin, Dovey & Co. In the year 1849, the firm purchased of Andrew Russell the St. Clair Colliery for $14,000, and on January 2d 1850, the firm of Parvin, Dovey k Co. was dissolved, and the property of the firm was divided, Parvin taking the St. Clair Colliery, and the defendant and Samuel Capewell and John Dovey, under the firm of Oapewells & Dovey, taking the Ravensdale Colliery. The liabilities of the firm were also divided as between themselves, Francis J. Parvin assuming the liabilities of the St. Clair Colliery, and Oapewells & Dovey assuming the liabilities of the colliery at Ravensdale. He also proved that some time in May or June 1849, Mrs. Capewell offered to lend to one of the miners at the colliery some money to send for his wife from England, saying that she had a few hundred dollars that did not belong/to the company. That “the firm began to go backward in 1850,” yet they considered themselves in good circumstances, their liabilities, on December 13th 1850, being $3232.15, and their bills receivable $1018.09. They had no real estate, and no property excepting the colliery. He also proved that in the month of December 1850, John Dovey proposed to sell out his interest in the firm .to Benjamin Capewell for $3500, of which $1000 was to be paid in cash, and the balance secured to be paid in a satisfactory manner.</p> <p>The defendant then proposed to prove by John Dovey, that during the negotiations which resulted in the withdrawal of Benjamin Capewell from the firm of Oapewells & Dovey, on the 13th December 1850, witness proposed to Benjamin Capewell to sell to him his interest in the colliery, and that Benjamin said that his wife, Mrs. Joanna Capewell, was able to furnish $1500 ■ for that purpose, if she would agree to do so.</p> <p>The counsel of the plaintiff objected that the proposed evidence tended to show a separate property in Mrs. Capewell by the declarations of her husband, but the court overruled the objections, and admitted the evidence as part of the res gestee at the time of the dissolution of the firm. The witness then stated “ the proposition was for the defendant to take nay interest in the colliery. The defendant and Mrs. Capewell, Samuel Capewell and I, met in Pottsvillo. Ben (the defendant) said his wife was here with the money if I wished to take it, and in fact, she produced the money, but the amount I did not know. She had it tied in a handkerchief.” The payment was to be $1500. The parties could not agree' upon the security for the last payment, and the transaction was finally closed the same day by the defendant selling his interest in the firm to John Dovey and Samuel Capewell for $1000. The money was paid to the defendant. The rent for which the judgment of McCartee and others was obtained, accrued after the defendant had left the firm. This witness also stated that he “ heard the defendant say he could borrow money from his wife, could get money from his wife. When he first went into business he did not pretend to have any money that he did not get from his wife, and that was the capital he went into business with.”</p> <p>The defendant also proved that on the same day Mrs. Cape-well was seen at her house in St. Clair, with some money in gold and silver, and paper, which she was counting, and in reply to a question by the witness as to what she intended to do with it, she replied, “ that she was counting out $1500, and was going to Pottsville to buy out John Dovey.” Her husband was not present at this time.</p> <p>It was also proved that Mrs. Capewell, in the presence of her husband, paid the purchase-money of the lots of ground upon the delivery of the deeds given in evidence by the plaintiff, and that in the year 1852 she made a contract with a carpenter for the work of the back building erected on one of the lots, and took the receipts for the payments in her own name.</p> <p>At the sheriff’s sale of the premises, as the property of the defendant, notice was given by Mrs. Capewell that she claimed the property as her own.</p> <p>This was the case on the part of the defendant.</p> <p>When the testimony was closed, both parties presented points to the court, on which instruction to the jury was requested.</p> <p>The plaintiff’s points were these :—</p> <p>1. That neither the declarations of Benjamin Capewell or his wife are evidence of the separate ownership of the wife in the money said to have been given her by her husband.</p> <p>2. That under all the evidence in this cause, the verdict of the jury must be in favour of the plaintiff.</p> <p>Defendant’s points were as follows :—</p> <p>1. If the jury believe, from the testimony in the cause, that Benjamin Capewell, prior to 1846, and at a time when he was free from debt, and not about to embark in hazardous business, gave to his wife, Joanna Capewell, the money which she after-wards used in the purchase of the property in dispute, to wit, in April 1841, the plaintiff cannot recover, whether at the time of the purchase Benjamin Capewell was indebted or not to third persons.</p> <p>2. A husband ma.y, when free from debt, and when not about to embark in hazardous business, give money to his wife, which, if invested by her, or to her use in property, such property may be held by her as against her husband’s creditors, holding claims contracted subsequently to the date of purchase or gift of such money.</p> <p>3. A husband, free from debt, and not about to embark in any hazardous business, may give money to his wife as a reasonable provision for her old age, as for the purchase-of a homestead in her own name and right, and such money and such property, so acquired by the wife as a gift from her husband, with such honest intent, and in the absence of all fraud, is such property of the wife as is secured to her separate enjoyment by the Act of 11th April 1848, and is not liable to the executions of her husband’s creditors, for his debts contracted subsequently to her acquirement of said money or property.</p> <p>The court below (IIeg-INS, P. J.) affirmed the first point of plaintiff, adding that “the declarations of the wife while in the actual possession of the money, were evidence with the other evidence in the cause.” The plaintiff’s second point was negatived. The defendant’s points were affirmed, all which rulings were assigned for error here by the plaintiff, after a verdict and judgment for the defendant in the court below.</p>

<p>Power of court to remove school directors.— Consolidation of school districts not reversed if reasonably exercised.</p> <p>1. The power of the Quarter Sessions to remove school directors from office, is limited by the 9th section of the Act of May 8th 1854, relating to common schools.</p> <p>2. The temporary consolidation of schools in a district is a matter of discretion of the board of directors, and when reasonably exercised will not be interfered with by the courts.</p>

<p>ERROR to the Oommon Pleas of Hortllarnptom county.</p> <p>These were actions of assumpsit, brought by Jacob A. Feath-erman, administrator, &o., of Abraham Featherman, deceased, against Depue S. Miller. The first was brought to recover the balance of a promissory note, dated April 1st 1848, drawn by Depue S. Miller to Abraham Featherman, payable in one year with interest, for $606.07, upon which a payment on account of $194 was endorsed April 9th 1850. The second was brought to recover the amount of a bill single, dated April 10th 1849, executed by Depue S. Miller in favour of Abraham Featherman, deceased, for the sum of $776, payable in one year from date, with interest. Plaintiff's intestate, who was a farmer, residing in Monroe county, and defendant who, was a merchant, living in Eas-ton, were nearly related, Abraham Featherman's wife being defendant's sister. The cases were submitted to arbitrators, who awarded for the defendant in the first, and for the plaintiff in the second suit. When the first cause was called for trial, May 24 1860, it was agreed by the parties, and acceded to by the court, to try both cases before the same jury, and verdicts were returned by the jury in each case, finding for the plaintiff the sum of $709.97 in the first case, and for the plaintiff in the second the sum of $1218.44. The defendant asked for and obtained a new trial in each case. August 29th 1861, the cases were again called for trial, when the parties again agreed, with the consent of the court, to try them both before the same jury. August 30th 1861, the jury brought into court sealed verdicts, and being polled, the two first called disagreed in the amounts, and the third being unable to remember the amounts, failed to answer; whereupon the jury was dismissed by the court, plaintiff’s counsel objecting thereto. August 26th 1862, a jury being called, it was again agreed to try both cases before the same jury, which was done, and the jury returned a verdict in the first case in favour of the defendant, and in the other case in favour of the plaintiff for $491.83. On the same day plaintiff’s counsel asked for a new trial for reasons filed, and which, after argument, was refused in both cases. Subsequently judgments nisi in both cases were entered.</p> <p>The whole difficulty arose on account of a receipt dated April 7th 1851, signed by the plaintiff’s intestate in favour of the defendant for the sum of $1050, which the defendant contended was a payment on account of the two bills in suit, but which the plaintiff contended was given in payment of another note, which had been surrendered to the defendant in the lifetime of the plaintiff’s intestate, which receipt the plaintiff contended should have been returned to his intestate when he sent him the note to which it referred.</p> <p>On the trial, the plaintiff gave the notes on which suit was brought in evidence, and rested.</p> <p>The defendant then gave in evidence the following receipt from Abraham Featherman to the defendant: “Received, Easton, April 7th 1851, of Depue S. Miller, ten hundred and fifty dollars ($1050.) Signed, Abeaham FeatheemaN.” Also the following order: “Mr. Depue S. Miller. Sir — Please pay to the bearer, Harrison Snyder, the sum of forty-eight dollars, and you will oblige your friend, Abeaham FeatheemaN.” And closed his defence.</p> <p>The plaintiff then called Daniel Miller, who testified as follows : — I was acquainted with Abraham Featherman, deceased, formerly of Hamilton township, Monroe county. He lived in Hamilton township, Monroe county. I was there making fence before Abraham Featherman’s house, about the middle of April, when Jacob Featherman came along with a load of barrels; he was on the road to Easton. Abraham Featherman asked him— (This conversation was objected to, but admitted) — Abraham Featherman asked Jacob Featherman if he would take a note down against Depue S. Miller. He replied he would. This was on the road before his house. Abraham Eeatherman went into his house and fetched out the note. He handed it to Jacob Eeather-man; something was said about a receipt, but I don’t remember. I was busy working at the fence. It was in the spring of thé year before old Abraham Eeatherman died.</p> <p>Cross-examined: I have no memorandum of the date, no book account of my work, nothing by which I can fix the date; I lived about two miles from him. About six years ago I was first called on to fix the date. The middle of April is the time we generally begin fixing fences; somewhere along there. I made no fences for Abraham Eeatherman at any other time. I think it is the only time I made board fence for him. I don’t remember how many days I worked at that fence, it was not long. I worked at the fence across the road from the house. Jacob Featherman’s wagon was near the middle of the road. I saw the paper that was handed to Jacob Eeatherman; he called it a note. I could not say it was a note; I did not see if anything was written on the paper; I was not far off; I was not near enough to see if anything was written on it. I could not read it if I had seen it. There was something said about a receipt, but can’t remember what it was. I don’t think the paper handed to Jacob Featherman was tied or wrapped up, it was folded up. No other conversation than what I stated, as I heard. Part of this, to wit, that which related to the request made by Abraham Eeatherman and that relating to the receipt, was subsequently ruled out by the court.</p> <p>Jacob C. Eeatherman was then called, who said: I knew Abraham Eeatherman. I came along there with a load of whiskey barrels, as near as I can tell, the 14th of April 1851. Abraham Eeatherman stopped me. He said I should take a note down and give it to Depue S. Miller, at Easton, and he said I should ask him for a receipt. Abraham Eeatherman gave me the note, and I took it down to Easton, and gave it to Depue S. Miller, in his storehouse. I asked him for a receipt, and he would not give me one. He said he had destroyed-it, or burned it. Depue S. Miller took the note. Daniel Miller and Absalom Eeatherman were at Abraham Eeatherman’s house when I got the nóte.</p> <p>Cross-examined : I have no book, or memorandum to fix the time by; I took it as near as I could tell. I was in the habit of doing errands for neighbours a good deal. I can’t tell what other errands I had that trip. I did not open the paper to see what it was. He asked me if I would take a note down for him. I said yes — I said that I would. I believe that is all he.said; he asked me to bring back a receipt for it. I don’t know who was in the store when I handed it to him. When I handed the note to Miller I asked for the receipt. I can’t just say what I said; not all I said to him; I can’t tell what I said to Miller; I can’t tell what he said.</p> <p>Re-examined: I can’t tell what I told Depue S. Miller when I came down, when I gave him the note. I asked Miller for the receipt; he said he would not give me one, that he had destroyed it, or burned it.</p> <p>Re-cross-examined: Depue S. Miller did not tell me he had burnt the note. I don’t recollect anything about it; I remember he said a receipt. I know nothing about this note; I know I fetched the note down. It was a note. Old Abraham Feath-erman told me it was a note. I can’t recollect that I testified before the arbitrators that he said he would burn the note; I don’t recollect that I testified in court that Miller said he had burnt the note; I don’t recollect that I testified in court that Miller said he would burn the note. I testified in court that Miller said he would destroy the receipt, or burn it — that is what he did say, as near as 1 can recollect. I am a brother’s son of Abraham Featherman.</p> <p>Re-examined by plaintiff: I did not say in court that Miller said he had burnt the note.</p> <p>Other witnesses were called and examined by the plaintiff.</p> <p>Thomas T. Miller was then called by the defendant to contradict the testimony of Jacob Featherman, or rather to prove that his memory in regard to this transaction was defective. In the course of his examination the defendant’s counsel propounded the following question: “ Was or was not your firm in the habit of receiving notes from your friends in Monroe county to be discounted in bank, some of which were discounted by you before discount day?” This was objected to by plaintiff’s counsel, but was admitted by the court under exception.</p> <p>The court below, after stating the case, charged the jury as follows:—</p> <p>“ If the testimony rested on these notes, receipts, and order, I presume you would have little difficulty as to your verdict. Although this receipt for $1050 does not declare that Abraham Featherman received that money on a note or notes which he had at home, yet you might fairly so presume without evidence of other transactions between these parties, it appearing by the two notes given in evidence that Featherman had them at the time the receipt was given. But the plaintiff contends that his intestate had another note against the defendant, Miller, to which this receipt was intended to apply; that he sent it down to Depue S. Miller by Jacob Featherman, requesting the return of this receipt; that Miller took the note from the messenger, but refused to give up the receipt, alleging that he had burnt or destroyed it. This, gentlemen, is the great dispute between these parties. It is a pure question of fact for you to decide from the testimony. It is your duty to decide it not upon mere surmise, but according to the evidence. We at first admitted Daniel Miller to testify his recollection of the message sent by Abraham Featherman to Depue S. Miller by Jacob Featherman, upon the statement of plaintiff’s counsel that it would be followed up by testimony showing that the message as testified by Daniel Miller had been delivered by Jacob Featherman to D. S. Miller — but this proof did not sustain this statement. Jacob Featherman did not in words or substance tell D. S. Miller that A. Featherman had said that he had sent to him, Miller, a note against him. We, therefore, on the application of the defendant, struck out that part of Daniel Miller’s testimony, and it is therefore no longer before you. You have no right to consider it; you would do wrong to consider it; it should be as if never spoken. If it had not been stricken out, we would have felt it our duty to have called your attention to the fact that Jacob C. Featherman, according to his testimony, did not so hear the message. He to whom it was spoken did not, according to his testimony, hear anything said by Abraham Featherman about this note being against Depue S. Miller. If it had been .so said, would not he have been more likely to have heard it than one working some distance off, a mere uninterested listener ? [But, gentlemen, as we have said, no such message having been proved to have been delivered, this testimony has been stricken out, and you are to blot it from your recollection.] You, then, have the testimony of J. C. Featherman, whose credibility is for you, that Abraham Featherman requested him, Jacob Featherman, to take a note down, and give it to Depue S. Miller, at Easton, and ask for a receipt. He says, in substance, — you will recollect his words, — that Abraham Featherman gave him a note, requesting him to take it down to and give it to D. S. Miller, at Easton, and ask him for a receipt. That he took it down to Easton, and gave it to Miller, and asked him for a receipt, who would not give it, alleging that he had destroyed or burnt it. It is for you, gentlemen, to decide upon the credit you will give a witness. If his story is improbable, if he is shown to be biassed in feeling, or having a failing, uncertain recollection; if he has contradicted himself, or made other and different statements at other times, these all would properly weigh with you as to the effect you would allow his testimony. There is no direct testimony now before you, showing that the paper sent was a note against Depue ¡3. Miller — whether there is any from which you might properly infer that it was a note at all, we will speak subsequently. Is there testimony from which you can properly infer it ? To so conclude, you ought to be satisfied by testimony that convinces you, as intelligent men conversant with the transactions of fellows. You have heard the arguments of counsel on both sides in reference to this paper sent by Jacob Featherman, and the testimony generally. When they differ in their recollection as to the testimony given, you will decide according to your recollection. While we desire you to understand that mere questions of fact are entirely for you, and the court does not desire to interfere, it may not be improper to say, that it seems to us certainly strange that if this receipt were to be applied to this alleged note sent by Abraham Featherman, and his messenger returned without it, that A. Featherman never seemed, as far as the testimony shows, to have concerned himself about it, although he lived some ■ eighteen months after, and must, in that event, have known that both note and receipt were in the hands of D. S. Miller, or might be. We.have no testimony that he ever complained to Miller about it, nor is there any evidence that Abraham Featherman ever held any other note against defendant than the two now given in evidence. The defendant has also offered evidence by Thomas J. Miller and James Moser, showing, as they contend, that Jacob Featherman at another time either told another story or showed a forgetfulness and want of recollection and knowledge as to what he has testified to. They have also read from the notes of testimony at former trials, showing, as they contend, that he has made different statements at different trials. We repeat, gentlemen, that the credibility of all the witnesses is for you. The plaintiff also urges the testimony of Simpson Featherman as to D. S. Miller’s admission of indebtedness soon after the death of the father of the witness. This should receive your due consideration. The law upon his assignment and transfer of his interest in his father’s estate made him a competent witness, leaving however his credibility under the position he has occupied and his testimony as given entirely for you. We sum up, then, gentlemen, are you satisfied from the whole testimony that this receipt should not be credited on these notes, or does the testimony convince you, satisfy you, that this $1050 receipt relates to another transaction or another note ? If you find that this receipt ought to be credited on these notes, then you will find in favour of the defendant in the first suit, and then deducting the balance of the receipt, having deducted therefrom the amount of the first note less the payments, and making proper interest calculations, and this order of $48 from the second note, render a verdict in the second suit for the plaintiff for what is yet due him. You will have the calculations of both parties.</p> <p>“ If, however, you find that this receipt does not relate to these two notes, or either of them, but to another note, or another transaction, then you will leave it out of your calculation altogether, and render your verdict in the first suit for the amount of the first note and interest, deducting the payments of $194 of the date made, and the $48 of its date, and in the second suit for the amount of the note under seal, with interest. [‘ The defendant requests us to charge you, that there is no evidence in the case that the paper said to have been carried by Jacob C. Eeatherman to D. S. Miller was a note.’ After careful examination of the testimony, we feel it our duty to answer this point in the affirmative.] It is true that Jacob Eeatherman testifies that Abraham Eeatherman called the paper he handed him a note. But he says that he did not open the paper to look what it was. So that never having opened it, he could not have read it. [This paper, he testified, he handed to Miller, only asking for a receipt. He therefore knows nothing that this paper was a note except from Abraham Eeatherman’s declarations, and we charge you that Abraham Featherman’s declarations in the absence of the defendant, and not communicated to him, are not evidence against him.] We were asked to strike out J. Eeatherman’s testimony as to Abraham Featherman’s declarations that this was a note; but preferred, as it was connected with the message received and delivered, to give you directions in relation to it in our charge.”</p> <p>Under these instructions there was a verdict and judgment in favour of plaintiff for $491.83. Whereupon the plaintiff sued out this writ, and assigned for error—</p> <p>1. The striking out of that part of Daniel Miller’s testimony in chief, wherein he said, “Abraham Eeatherman asked Jacob Eeatherman if he would take a note down against Depue S. Miller, and that something was said about a receipt.”</p> <p>2. Permitting Thomas J. Miller to answer the question as to his firm receiving notes from friends in Monroe county, to be discounted in bank, &c. The 3d, 4th, 5th, and 6th errors assigned were to those portions of the charge that are enclosed above in brackets.</p>

<p>ERROR to the Common Pleas of McKean county.</p> <p>This was an action of ejectment by Hiram Phelps, Henry P. Hart, and John Eiske against John R. Chadwick, Seneca Freeman, Merrick Housler, and Joseph Housler, for eleven hundred acres of land in Shippen township.</p> <p>The plaintiffs claimed the land in controversy under two separate tax sales and conveyances, by the treasurer of McKean county, in 1849 and 1850.</p> <p>The defendants claimed under N. Richmond, who had purchased the land at a treasurer’s sale September 30th 1844, and paid therefor by giving his own note to the treasurer. Richmond died October 13th 1846, leaving four minor children, whose interest in the premises became vested in Chadwick and one Brewster Freeman by a conveyance from two of the children, E. F- and W. H. Richmond, after they came of age, and by a sale of the interest of the other two, under and by virtue of an order of the Orphans’ Court, and a conveyance by their guardian, dated March 5th 1859.</p> <p>On the 28th of February 1860, Brewster Freeman conveyed the whole tract to John R. Chadwick, the consideration having been paid in equal shares by Chadwick and Seneca Freeman.</p> <p>On the trial, the defendants offered in evidence a contract dated April 15th 1857, between the heirs of Nelson Richmond and Brewster Freeman, recorded in Miscellaneous Book, p. 297, recorder’s office, McKean county, for the purpose of showing the right of the heirs to redeem.</p> <p>The part of the contract pertinent to the offer is as follows:—</p> <p>Memorandum of agreement made the 15th April 1857, between William II. Richmond and O. R. Bennett, guardian of Edwin F., Franklin O., and Emma I. Richmond, minor heirs of Nelson Richmond, deceased, and Amanda M. Freeman, adminis-tratrix of the estate of said Richmond, parties of the first part, and B. Freeman, party of the second part, witnesseth as follows, viz.: The said parties of the first part, for the consideration hereinafter mentioned, promise and agree to, and by these presents do permit the party of the second part to sue for any or all of the unseated lands that were at the time of the death of said Nelson Richmond, deceased, the property of the said Richmond by virtue of treasurer’s deeds or otherwise, whether the said lands were sold by parol agreement in the lifetime of the said Richmond, or have since been conveyed by the said Amanda M. Richmond, or otherwise, and the said parties of the first part agree to permit Brewster Freeman to use their name or names as plaintiffs to a suit, if deemed necessary, for the recovery of said lands, or any part thereof, or purchase the same at a sale by the Orphans’ Court when sold, and to exercise his own judgment and discretion in relation to suing for said land, and they also authorize said Freeman to compromise and settle any claim which they may have in any part or portion of said lands, and the said parties of the first part further agree that the said Freeman may receive whatever money he can get from John Holmes, after the judgment which said Holmes obtained against the said estate in the Common Pleas of McKean county shall be paid, arising from the Moody farm, and credit the same on his account for board, lodging, and clothing, furnished by him to the minor heirs of said Nelson Richmond, in consideration whereof the said Brewster Freeman agrees to apply whatever money he may be able to get of John Holmes as aforesaid to the said account for board, &c., and for the balance of his claim for board, &c., amounting in all to about $1300, to look exclusively to what may be made out of the said lands for payment, and to release the said parties of the first part from all claim he may have upon them, or either of them, growing out of the boarding and clothing of the said minors, or any of them, unless he shall be able to collect the said amount out of said lands. And the said B. Freeman agrees further to proceed by suit or otherwise to collect what he can out of said lands, to keep and save harmless the said parties of the first part from all costs or expense in any way incurred in the recovery of said lands, and to pay the heirs of said Richmond estate óne-half of what money may be made out of the said lands over and above all expenses incurred on recovering the same over and above the balance of his claim for board, &c., which is to be first deducted.</p> <p>Plaintiffs’ counsel objected to the admission of the contract in evidence, on the ground that it was irrelevant. The court sustained the objection, and rejected the offer.</p> <p>Several points were presented by the counsel for the plaintiffs and the defendants, among which were the following on the part of the defendants:—</p> <p>1. That the title to the land in suit, acquired by Nelson Richmond by his purchase at treasurer’s sale, September 30th 1844, is not affected by the fact that a note was given for the purchase-money, taken in connection with all the facts proved in relation to said note.</p> <p>. 2. The defendants, John R. Chadwick and Seneca Freeman, having purchased said land from Brewster Freeman, and paid a valuable consideration for the same, are not affected bj the arrangement between Nelson Richmond and the county treasurer and county commissioners, by which the note of said Richmond was given to the county for the amount of his bid.</p> <p>3. When unseated land is duly assessed with taxes, and sold by the county treasurer, and the deed duly acknowledged and delivered to the purchaser, a vendee from said purchaser for a valuable consideration, without notice, is not affected by an arrangement between the treasurer and purchaser at treasurer’s sale, by which a note is received in the place of money.</p> <p>4. That the portion of the land in suit that belonged to each of the minor children of Nelson Richmond, deceased, can be redeemed by defendants from the sale made by Treasurer Bard and Treasurer Darling, within two years from the time that each of said minors is of the age of twenty-one years.</p> <p>5. The legal right existed to make the redemption, as it was done.</p> <p>6. No action can be sustained by plaintiffs, not having been brought within five years after the sale for taxes to Nelson Richmond, deceased.</p> <p>All of which were answered in the negative.</p> <p>The charge of the court below (White, P. J.) was as follows:—</p> <p>After stating the main facts of the case, his honour proceeded: —Many propositions have been submitted by counsel of the respective parties on. which the opinion of the court is requested. Some of these involve questions of law and fact, others questions of law only.</p> <p>“ The questions regarded as most important involve, first, the validity of the treasurer’s sale and conveyance to Judge Richmond. Second, the effect of the redemption made by J. R. Chadwick on the 17th December 1859, and the right of the heirs at law of Nelson Richmond to redeem.</p> <p>“ The arrangement under which sale was made to Judge Richmond is shown by evidence of Mr. Oviatt, and by the note of Judge Richmond, which was read to the jury as follows :—</p> <p>“ ‘$737.05. By the 30th day of September 1846, for value received, I promise to pay to the county of McKean seven hundred and thirty-seven dollars and five cents, it being for lands purchased at treasurer’s sale this 30th day of September, A. D. 1844. Now, it is understood, and I hereby promise to pay over to apply on this obligation the amount of tax and costs on any lot of the lands purchased as aforesaid, that may be redeemed before the said 30th September 1846, at the time the said redemption-money may be received.</p> <p>“ ‘ Smethport, January 7th 1845.’</p> <p>“Endorsed on back of note: ‘Received, August 17th 1846, on the within, two hundred and fifteen dollars seventy-five cents. (Signed) B. C. CoRwiN, Treasurer; Received, January 14th 1847, two hundred and fifty-six dollars and forty-five cents on the within. . (Signed) B. C. Corwin, Received, May 25th 1847, two hundred and seventy-nine dollars and ninety-one cents. (Signed) B. C. Corwin.’</p> <p>“Mr. Oviatt swears that he was clerk of the county commissioners in 1844, that an arrangement was made on the week of the September Term of the court of that year, between the commissioners and treasurer of the county and Nelson Richmond, by the terms of .which the treasurer was authorized to sell the lands remaining unsold on a credit of two years to Richmond and others, that the lands purchased by Richmond, in September 1844, including the tract in controversy, were purchased under that arrangement, and that he was present, and saw Richmond give the note for the amount of his bids. The state, road, and school fcrx on the lands purchased under this arrangement were to be paid by the treasurer out of county funds, and the note of Richmond was to be received and credited as county funds to the treasurer. On the settlement of his account the treasurer was charged with the whole amount of taxes for 1842 and 1843 on these lands, and was credited by Judge Richmond’s note for $737.05.</p> <p>[“ The commissioners and treasurer of the county had no legal authority to make such an arrangement, and the sale in pursuance of it was illegal and void.]</p> <p>[“ But on the part of the defendant it is said, that no suit having been brought by the owner, or by any one claiming under him, within five years to recover this tract, the defect in the sale to Richmond is cured by the limitation in the 3d section of the Act of the 3d April 1804. Should this position be correct (and the court are of opinion that it is, and so instruct the jury), it is applicable only to the title which plaintiffs hold under Crary, and not to 'their title derived from tax sale made in 1848 and 1850, which is subsequently acquired and paramount to the Crary title, and could not be affected by the Statute of Limitations in the Act of 1804.]</p> <p>“ The treasurer’s receipt for redemption-money, which is relied on by defendants to defeat the tax sales of 1848 and 1850, bears date on the 19th day of December 1859, and purports to be a receipt for the one-fourth of the redemption-money and taxes on lands mentioned therein, including among other taxes, No. 5979. It is drawn to Edwin F. Richmond, and sets forth that the redemption is made to him as a minor heir. The evidence shows that the money paid was furnished by two of the defendants in this suit (Messrs. Chadwick & Freeman), and that at the time it was paid to the treasurer Edwin F. Richmond had no title to or interest in the land; that on the 4th of March 1859, after he had attained his majority, he and his elder brother, William H. Richmond, had conveyed their title in it to Brewster Freeman, and that the residue of the Richmond title (being the interest of Franklin 0. and Emma I. Richmond) had, on the 5th of March 1859, been conveyed by their guardian to said Brewster Freeman.</p> <p>“ The whole interest, therefore, of the heirs at law of Nelson Richmond in their lands had been divested prior to the 19th December 1859. They were not owners, and had no title or interest which authorized them to redeem.</p> <p>“ But the redemption was not made by Edwin F. Richmond, although so expressed in the receipt. It was made by J. R. Chadwick, for and on behalf of himself and Seneca Freeman, under an agreement between them and Brewster, who- was the owner of the Richmond title, and was present at the time, and authorized them to redeem. It is not alleged by the defendants that the payment made to the treasurer on the 19th December 1859, as shown by the receipt, redeemed any other interest than that of Edwin F. Richmond. It is conceded that the undivided fourth to which William Henry Richmond was entitled was not redeemed, and that the equity of redemption thereto having been permitted to expire without payment of the redemption-money, the plaintiffs have title to, and should recover, this undivided fourth. But it is alleged that no recovery can be had of the interest which belonged to Edwin F. Richmond, that having been redeemed, nor of the interest which belonged to Franklin 0. and Emma I. Richmond, they being still minors, and having still the right to redeem their interest separately at any time within two years after attaining the ages of twenty-one years. It is a conclusive answer to this position that the evidence shows that Edwin F. Richmond had divested himself of all title or ownership in the land before the alleged redemption had been made, and that Franklin 0. Richmond and Emma I. Richmond have no interest or ownership which authorizes them to redeem, their interest having been vested in Brewster Freeman by sale in the Orphans’ Court, and conveyed by their guardian.</p> <p>“ It is said, too, by defendants’ counsel that the conveyance to John R. Chadwick of the title which had previously belonged to these minor children of Judge Richmond, carried with it the privilege which the law gave them to redeem, and that this may be exercised by him at any time during which it would have been competent for them to exercise it. We do not concur in this position. We regard this privilege as a personal one, and conferred by the Act of Assembly upon the minor alone, and for his benefit. The alleged redemption of the 19th December 1859, was void, because, at the time it was made, Brewster Freeman was the owner of the interest which wras proposed to be redeemed, and had no right to appropriate to himself a personal privilege conferred on E. E. Richmond alone, a privilege which cannot be transferred by deed, assignment, or otherwise.</p> <p>“ It was void, too, because at the time it was made Brewster Freeman was the owner of the whole title and interest of the heirs of Judge Richmond, as shown by the deeds given in evidence, and could not redeem the part without redeeming the whole. Prior to the passage of the Act of 9th March 1847, one joint tenant, or tenant in common, could not redeem his individual interest in a tract of land. Being a joint owner, he must redeem the whole tract, and the redemption thus made would enure to the benefit of his co-tenant as well as to his own. The 3d section of the Act of the 9th March 1847, authorizes joint tenants, tenants in common, as copartners of unseated lands sold for taxes to redeem their interests, but it does not authorize them to redeem less than. their entire interests. There is no Act of Assembly, or adjudication of the Supreme Court, which authorizes an owner of a tract of unseated land, whether he is sole owner or the owner of an individual part, to redeem less than his entire interest in the tract. [The redemption, therefore, relied upon by defendants to defeat plaintiffs’ tax title, acquired through treasurer’s sale in 1848 and 1850, is regarded by the court as a nullity,] and those sales being regular, and the title under them vested in plaintiffs, the jury are directed to render a verdict in favour of plaintiffs for the whole tract.”</p> <p>Under these instructions there was a verdict and judgment in favour of the plaintiffs; whereupon the defendants sued out this writ, and assigned for error,</p> <p>1. The refusal of the court to admit as evidence the contract of April 15th 1857, above.</p> <p>2. The whole charge, specifying as particularly erroneous the portions printed above in brackets.'</p> <p>3. The refusal to affirm the points of defendants.</p>

<p>Validity of tax sale under Act of March 20ih 1812. — Taxes, •presumption of payment of. — Sale of heirs’ interest in real estate, after striking off testatum fi. fa., and before issue of alias testatum, vests title in ven-dee clear of the lien.</p> <p>1. Under the Act of 20th March 1812, authorizing county commissioners to estimate taxes which had been paid by a settler of land under contract with a warrant-holder, and after deducting so much as should have been paid by the settler, to sell the part belonging to the warrantee; such a sale made in 1838 for taxes paid by the settler from 1801 to 1807 is void, and passes no title; for, after so long an interval, the taxes are presumed to be paid, and if paid, the sale founded on them is invalid.</p> <p>2. To make good such a sale, it will not be presumed that the delay in enforcing the payment of the taxes was in eonsecpience of “ disputes relative to said land;” the fact, if it existed, must be shown by the parties holding title under the vendee.</p> <p>3. Where the former owner of the land had died in May 1824, and judgment having been obtained against his administrator, a son, in August 1830, a testatum, fi. fa. was issued to the county where the land lay in 1831, the lien of which in 1835 was stricken off, and an alias writ issued in September of the same year, under which the land was sold by the sheriff in July 1836 ; in an ejectment wherein the title of the vendee of the son, administrator, by conveyance in 1832, was asserted against that of the sheriff's vendee; it was held, That the interest of the son as heir conveyed in 1832, was clear of the lien of the judgment, having been made before the alias fi. fa. became a lien in the county to which it was issued, and hence it did not pass by the sheriff’s sale under that writ.</p>

<p>ERROR to the Common Pleas of Monroe county.</p> <p>This was an action of trespass, brought November 25th 1854, by Jacob Alternóse against Jacob Hufsmith, to recover damages for timber cut by plaintiff on lands which be held as lessee or licensee of John Merwine, who claimed to be the owner in fee simple.</p> <p>Hufsmith was in actual possession of a tract of land in Monroe county, containing two hundred and ninety-one acres, which he had purchased at sheriff’s sale in 1846, portions of which he had cultivated and improved. On a portion of the woodland, which defendant claimed as part of this farm, the plaintiff, Alte-rnóse, acting under the authority of Merwine, entered and cut some of 'the timber, which Hufsmith hauled to his house, and which was the trespass complained of.</p> <p>The titles under which the parties claimed are clearly set forth in the charge of the court below (Barrett, P. J.), portions of which were assigned for error.</p> <p>To the usual plea of not guilty, the defendant added the following special plea, which, after the evidence was closed, was by leave of the court withdrawn:</p> <p>“And for a further plea in this behalf, as to the seizing, taking, and removing the said goods and chattels in the said declaration mentioned, the said defendant, by leave of the court first had and obtained, according to the form of the statute in such case made and provided, says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because lie says that before and at the time of the said taking, he the said defendant was seised in his demesne as of fee, and lawfully possessed of a certain close in the township of Chestnut Hill, in said county, containing two hundred and ninety-one acres and one hundred and ten perches, and the said plaintiff had then and there wrongfully and injuriously entered in and upon the said close, and then and there cut and severed the said goods and chattels from the freehold of the said defendant within the said close, whereupon the said defendant took and removed the said chattels, doing no unnecessary harm to the said plaintiff, as it was lawful for him to do, for the cause aforesaid, which is the said supposed trespass in the introductory part of this plea mentioned, and whereof the said plaintiff hath above complained against this defendant. And this the said defendant is ready to verify. Wherefore he prays judgment, if the said plaintiff ought to have or maintain his aforesaid action thereof against him, &c.”</p> <p>After the defendant had withdrawn this plea the plaintiff’s counsel requested the court to rule out the defendant’s evidence of title to the land in which the timber was cut and taken, which was refused.</p> <p>The court below charged the jury as follows:—</p> <p>[“ The plaintiff claims the possession of the land upon which it was cut. He entered under John Merwine, and relies upon his title to justify the entry. The case must turn upon the question of title to the land, because, if Merwine had the title, his license to the plaintiff was sufficient for him; if he had not, then the plaintiff was a mere trespasser without colour of title.] He was notified of the adverse claim. Hufsmith warned him not to go on the land. Had Merwine title to that piece of land ? An assessment of taxes for the year 1838 and 1839 has been shown for one hundred and ninety-nine acres and one hundred and forty perches of the William Ross tract, followed by a sale for said taxes in Jung 1840 to John Merwine, and a deed in accordance with said sale. This conveyed to Merwine the title to that tract of land, if it was, during either of those years, the proper subject of a sale for taxes. This depends upon whether it was seated or unseated. Three tracts of land in Chestnut Hill township were surveyed by warrants from the Commonwealth in 1803, and duly patented to George Levers. The patentee, in 1814, conveyed to George Sieglin, John Sieglin, and Frederick Sieglin, as tenants in common, by deed, six hundred and ten acres and one hundred and thirty-nine perches, out of the William Eoss, Mary Carr, and John Wilson tracts. The Sieglins entered into the immediate possession of the land so purchased. They made an improvement by clearing about fifty acres of land, building a house, &c., and occupied it by a resident settlement of the land. In 1815, the Sieglins sold off to Jesse Sieglin ninety-four acres of the land, who made an improvement, and has since resided upon it. George Sieglin, by some amicable partition, had a portion of the tract set off to himself, and had it improved in 1838 and 1839. Frederick Sieglin, Jr., purchased one hundred and ten acres of the tract, and had it improved in 1838 and 1839, making at least four distinct improvements on the six hundred and ten acres during those years. This left a balance of two hundred and ninety-one acres of the original purchase, including the house and improvements first made by John Sieglin, or John and Frederick. They had resided in the house, and occupied the farm and. a saw-mill upon it from 1814, up to about the year 1839. There is some evidence that John Sieglin had sold out his interest in the land to Frederick Sieglin previous to that date. In 1839 Frederick had the exclusive possession. On the 4th day of July 1838, Frederick Sieglin made a voluntary assignment to Charles Haney for the benefit of his creditors, of the land, with all of his other property. On the 27th of November 1839, John Sieglin and his wife joined in a deed for their interest in the land to Charles Haney, as the assignee of Frederick Sieglin, for a nominal consideration, and doubtless in pursuance of the alleged previous contract between the parties. If it was only a consummation of a former agreement for its conveyance, then the effect of it was to vest the whole title in Frederick Sieglin. This left the two hundred and ninety-one acres in 1839 in the possession of and belonging to Frederick Sieglin. Whether it was returned for the purposes of taxation, all as seated or part as seated and part unseated, from 1814 up to 1886, .we are not informed. In 1836, 1837, 1838, and 1839, it is shown that Frederick Sieglin was assessed with one hundred and seventy-four acres of seated land. The question of the abandonment of a portion of a tract, after a portion of it is seated, or after it has been once treated as seated land, is a question of fact for the jury. Occupation of land without cultivation, and cultivation without occupation, gives it the character of seated land. The remaining two hundred and ninety-one acres embraced a part of the Mary Carr and a part of the William Ross. Perhaps from ninety to one hundred acres of the latter. The original line between the tracts was upon the ground, but there is no evidence of the line ever having been run from the time the warrants were laid. A portion of the ‘ William Ross’ lies outside of the Sieg-lin purchase, but is not claimed in this suit, and therefore has nothing to do with it. That portion of the William Ross, inside of the lines of the six hundred and ten acres, is claimed under the treasurer’s deed. Was it seated or unseated, from 1836 to 1839, inclusive? It was part of the two hundred and ninety-one acres; it was claimed by the occupant; it was used as woodland attached to a farm is usually occupied. It was included within the lines of the farm. [Is there any evidence to show that the Sieglins ever abandoned it to the unseated list; that they ever authorized it to be so assessed for taxes ? The mere fact of Frederick Sieglin being assessed for only one hundred and seventy-four acres in the seated list is not sufficient; that may have been the mistake of the assessor. If shown to be the act of Sieglin it would be different.] Besides, there is no evidence as to what constituted the one hundred and seventy-four acres. It might as well have embraced the part of the ‘ Ross’ survey as to be all of the ‘Mary Carr.’ If Sieglin had run off one hundred and seventy-four acres, marked his boundaries, and returned only the number of acres included within them for taxation in the seated list, it would have afforded strong evidence of the abandonment of the residue to the unseated list. [As it is, we are bound to instruct the jury that the whole two hundred and ninety-one acres were seated during the years for which they were assessed, and that the 'sale to Merwine conferred no title whatever.] If the tax sale was void, has any other title been shown in Merwine on which the plaintiff can rely ? He claims the title of John Sieglin to an undivided half part of the whole two hundred and ninety-onq acres, under a deed from the widow and heirs of John Sieglin, dated 13th February 1849. John Sieglin and wife had conveyed all of the interest they had to Charles H. Haney, assignee of Frederick Sieglin, Cn the 27th of November 1839. True, the deed was not recorded, but John Merwine bad it in bis possession from 1846 to 1847, perhaps a whole year. He had been the clerk for the assignee of Sieglin. He obtained the deed from Walton upon his own application. Pie had at the time a treasurer’s deed for a portion of the land. He was so far interested as to put him upon his inquiry in reference to the title. He had the motive for strengthening, if possible, the title he then had. Indeed, for aught we know, he had that very deed in his possession from 1846 until he delivered it to the other party on the trial of this cause. Piad he notice of the conveyance previously made by John Sieglin and wife ? Certainly he had notice, in fact, and in the very strongest form. He had the record in his pocket. He is therefore not an innocent purchaser without notice, and can take nothing by his deed.</p> <p>[“John Merwine had also a deed from Charles H. Haney, dated the 27th day of May 3848, for the premises. What title had Haney ? • He does not convey as the assignee of Frederick Sieglin, but in his own right. He had no interest to convey as Charles Haney. If he had undertaken to convey in the character of assignee, then he had nothing to convey. The interest of Frederick Sieglin had been sold at sheriff’s sale on a judgment, the lien of which attached in 1837, two years before the deed of assignment. Could he convey away the moiety of John Sieglin ? Certainly not. It was conveyed to him as assignee. It was really conveyed to Frederick Sieglin. It vested the whole title in him. The sheriff’s vendee took the whole interest of Frederick in the land sold. He took his right of possession as well as his title. The possession surrendered by John to Frederick passed to Hufsmith, the sheriff’s vendee. John Sieglin had no right to re-enter as against Frederick, and his widow and heirs had no greater right. He could not, if living, take the possession against Hufsmith, and Charles Haney could not convey that right to Merwine. In any aspect of the case there was nothing to sell; there was not title in the grantors, and consequently Merwine acquired no title by his conveyances.</p> <p>“ This disposes of the plaintiff’s paper titles, and very conclusively against him. He is left to rely upon his naked possession to sustain this action.]</p> <p>“ Jacob Hufsmith bought the property at sheriff’s sale in 1846. He entered immediately into the possession of the house and farm, and has continued in possession of it ever since. That possession drew to it the possession of the woodland attached to it.</p> <p>“ If he used and occupied it as woodland attached to the farm, he was in the actual and not the constructive possession of it.</p> <p>“If the’ninety-eight acres of the William Ross survey was separate from the farm, clearly abandoned by Frederick Sieglin, plainly set apart by lines and boundaries from bis farm and other woodland, then it was unseated, and John Merwine has the title to it. The plaintiff was there under him, and was rightfully in the possession of the land. In that case he would be entitled to your verdict for the value of the timber. If he did not so set it apart, but used and occupied it as woodland attached to his farm, it Avas seated; the sale was void, and Menvine’s license gave the plaintiff no authority to enter. If, however, the plaintiff in any manner in 1854 had the actual possession of the land upon Avhich he cut the timber, he may recover its value. If he had the quiet, peaceable possession, it does not matter who was the OAvner; he could only be disturbed by due process of law. Against his actual possession the rightful OAvner had no authority to enter and carry away forcibly his personal property. The trees were severed from the freehold, and reduced to personal property. A doubtful or equivocal possession Avill not do. Possession as a trespasser is no possession. Only an actual possession under a claim of right will protect him.</p> <p>“ If the land was seated, and the possession in Hufsmith, you Avill find for the defendant.</p> <p>“ If it was unseated, you will find for the plaintiff. Or, if it Avas not, and you are satisfied that the plaintiff was in the actual possession of the land, your verdict should be for the plaintiff for the actual value of the timber at the place it was taken, and at that time.”</p> <p>Under these instructions there was a verdict and judgment for defendant. Whereupon the plaintiff sued out this writ, and assigned for error the refusal to allow him to ask one of defendant’s witnesses, on cross-examination, “ hoAV many crops of rye were raised before (the case was arbitrated).” The admission in evidence of a portion of the testimony of James H. Walton, in which he said, “ Haney once told me he had offered Hufsmith those papers (deeds and papers, which Avitness held as counsel for C. H. Haney, assignee of Frederick Sieglin, Sr.), for $25. If Huf-smith did not lake them, he would let Merwine have them. I talked to Hufsmith on that subject.”</p> <p>3. In admitting in evidence the minutes of the Common Pleas of Monroe county, shoAving that John Merwine was the thirty-third juror on the list, and was called May 11th 1842, in a case then tried, whereby he acquired knowledge of the existence of the deed from John Sieglin to C. H. Haney.</p> <p>4. In refusing to rule out defendant’s evidence of title after he had withdrawn his special plea, and in charging as printed above in brackets.</p>

<p>Insurance.— Unliquidated claim for loss, subject to attachment.</p> <p>An unadjusted and unliquidated claim for a loss upon a policy of insurance against fire is subject to attachment in the hands of the insurance company.</p>

<p>ERROR. to the Common Pleas of Chester county.</p> <p>This was an action of assumpsit, brought by the Burgess and Town Council of the Borough of Phoenixville against the Phoenix Iron Company, to recover the amount expended by the plaintiffs in repairing a bridge over the mill-race of the defendants, and a foot-bridge over French creek, in the borough of Phoenixville.</p> <p>The material facts of the case were these: — In the year 1837 there was a public road laid out by order of the court, extending from Buckwalter’s ferry, on the Schuylkill river, north of Phoe-nixville, to a point near to Longstreth’s mill, which stood a short distance from the bridge in question, over the race. At the termination of this road another road started and ended in a road called the Nutt road, which passes south of Phoenixville. This latter road was not laid out by the court, or other legal authority, but was travelled by the public, and kept in repair by the supervisors of the township of Schuylkill, of which Phoenixville was then a part. Reeves & Whittaker, who were then engaged ih the iron business in Phoenixville, and owned the ground over which the road last mentioned passed, cut a race, or canal across this road to convey the water from their dam to their mill.</p> <p>At the same time they erected a bridge over the race, partly on the bed of the road. In the fall of 1837, after the bridge was completed, a public road was laid out, by order of the court, from the south side of Phoenixville to the north side, “partly along tbe old road or street crossing over the factory and sawmill race, French creek, and the new rolling-mill race,” to the road leading towards Buckwalter’s ferry. This road, which was confirmed November 10th 1837, was thirty-three feet wide, and passed over the race bridge. In 1839 the bridge was swept away, but was soon after replaced by one built by the supervisors of the township of Schuylkill, on the same foundations, but which was somewhat higher and wider.</p> <p>It was subsequently raised by the supervisors. In 1849 Phoe-nixville became an incorporated borough, when the road laid out in 1837 became a street, and was graded by the borough authorities. This proceeding, together with the passage of a law authorizing the defendants to construct a railroad in the borough, rendered it necessary to raise the bridge seven and a half feet, which was done at the joint expense of plaintiff and defendants.</p> <p>By an act authorizing the construction of this railroad, defendants were empowered to construct and lay down a railroad from the Philadelphia and Reading Railroad south of and near the Phos-nixville depot, along certain streets of the borough, “ thence along the north side of Mill street, and across French creek bridge on Main street; and thence to the rolling-mills and furnaces of Reeves, Buck & Co.” It also “ authorized and empowered them to place cars and horses upon the said railroad, and to haul and transport upon and over the same all kinds of goods, wares, and merchandise; and to possess, occupy, and use the said railroad, to all intents and purposes, as their own private property: Provided, nevertheless, that so soon as the said railroad is laid upon the aforesaid bridge, across French creek.” *</p> <p>* * It also provided that “the said firm of Reeves, Buck & Co. (who then constituted the Phoenixville Iron Company) shall construct a convenient and substantial footway over the said creek, to be attached to the said bridge, on the west side of the same, four and a half feet wide, to commence opposite the machine-shop of the said firm, and to extend three hundred and two feet in length, and that the said firm of Reeves, Buck & Co. shall also raise the bridge across the canal belonging to the said firm, opposite the said bridge across French creek seven and a half feet high,” &c.</p> <p>The defendants constructed their railroad, as contemplated by the act, crossing by a curve over the French creek bridge, passing so near the western guard-wall as to require part of it to be taken down, or made thinner, and they also constructed a foot-way on the west side of the bridge, as provided by the act.</p> <p>The rolling-mills, race, and railroad are now owned by defendants.</p> <p>In 1860, both the bridge over the race and the foot-bridge being out of repair, plaintiffs requested defendants to repair them, and, upon their refusal, the plaintiffs caused both bridges to be repaired, and brought this suit to recover the amount expended.</p> <p>The court below instructed the jury, that if they “ found the road at the point in question had been changed as to location, or width, and a different bridge been erected by the township, or others, to accommodate this changed condition of the road, then their verdict should be for the defendants ; and</p> <p>“ In regard to the claim made for money expended in repairing the footway alongside of the county bridge over French creek, the court instructed the jury that the plaintiffs cannot recover.”</p> <p>Which instruction was assigned for error by the plaintiffs, after a verdict and judgment in favour of the defendants.</p> <p>as to the race-bridge, cited and relied on Woodring ?>. Forks Township, 4 Casey 355; Am-merman v. Wyoming Canal Company, 4 Wright 256; and 2 East Rep. 354.</p> <p>As to the liability of defendants to repair the foot-bridge he cited the cases in 4 Casey 355; 13 East 220; 14 Id. 317; 14 Wend. 58, and 23 Id. 449.</p> <p>as to the race-bridge, relied on Purley v. Chandler, 6 Mass. 458; Rex v. Kent, 2 M. & S. 518; Regina v. Wells,' 1 Salk. 359 ; Rex v. West Riding of York, 5 Burr. 2594; 2 W. Blackstone’s Rep. 7; 2 East 342, 346, and note; Rex?;. Surrey, 4 Camp. 455; Dygert?;. Schenk, 23 Wend. 448; Bedford Turnpike Company v. Franklin Company, 6 S. & R. 234.</p> <p>As to the foot-bridge, he contended that as it was built for the accommodation of the public, and as there was no obligation to repair imposed on the defendants by the legislature, the duty of repairing was on the public: citing Meadville v. Erie Canal Company, 6 Harris 66; 1 Hill 50.</p>

<p>ERROR to the Common Pleas of Monroe county.</p> <p>This was an action of ejectment, by Stroud J. Hollinshead against G-eorge W. Nauman, Christian Knoll, and George Jacob Koerner, for four hundred acres and one hundred and fifty perches of land in Paradise township, surveyed on a warrant to Jacob Gross.</p> <p>The plaintiff showed title out of the Commonwealth, a warrant, survey, and return of the Jacob Gross tract, in 1793, and the payment of the purchase-money to the Commonwealth by John Nicholson; a public sale by the state of Pennsylvania, on the 25th of May 1833, of the said tract, and twenty-one others, as the property of John Nicholson, to George De B. Keim, of Beading, and a deed duly executed on the 20th of September 1833, from the Commonwealth to the said George De B. Keim, the purchaser, for said twenty-two tracts of land, under the Acts of Assembly relating to the settlement of the lien of the Commonwealth against the said John Nicholson. The title thus vested in Keim was regularly traced down, through Samuel Griscom and others, and became vested in Stroud J. Hollinshead, the plaintiff, before the institution of said action, who thereupon rested his case in chief.</p> <p>The defendants claimed under the Statute of Limitations. The survey upon the warrant to Jacob Gross was made on the 15th of June 1793; a portion of the land embraced in this survey was covered by an older survey, made on the 28th of March 1775, upon a warrant to James Morris, dated December 22d 1774. This was the oldest survey in that part of the country, and was patented in the name of “Paradise.”</p> <p>Nauman and Knoll, the original defendants, occupied the land under George Jacob Koerner, who was admitted to defend. They were sons-in-law of his.</p> <p>The defendants’ witnesses testified that in 1822 Isaac Gruber, John Krieg, and George Jacob Koerner moved into that neigh-bourhood, and commenced separate settlements and improvements, on and near the tract claimed by the plaintiff; that they cleared and cultivated a part of the lands; cut and used timber, and protected the woodland from fire, and trespasses by others. They each had a survey made in 1822, by A. V. Coolbaugh. These surveys adjoined each other, and covered the Jacob Gross survey, but also embraced lands included in other original surveys. The upper one of these surveys made by Coolbaugh was made for George Jacob Koerner, and contained two hundred and eight acres; the next one was made for Isaac Gruber, and contained two hundred and eight acres twenty-two perches, and the lower one was made for John Krieg, and contained two hundred and fourteen acres fourteen perches.</p> <p>The Koerner survey, in addition to the part of the Gross survey covered by it, also covered parts of surveys, originally made on warrants to John Reed, Samuel Davidson, John Stille, and John Grandam; nearly one-half of it being of other surveys than the Gross survey.</p> <p>The Gruber survey, in addition to the part of the Gross survey covered by it, also covered parts of surveys, originally made on warrants to John Stille, Samuel Davidson, and also part of the interference of the Morris and Gross surveys.</p> <p>The Krieg survey, in addition to the part of the Gross survey, covered by it, also covered parts of surveys, originally made on warrants to John Stille, Samuel Davidson, Peter Cress, and also part of the interference of the James Morris with the Jacob Gross. The'house built by Koerner was on the Jacob Gross tract, as was that built by Gruber; but the house built by Krieg was on the James Morris tract.</p> <p>In April 1834, Isaac Gruber sold Ms improvement to George Jacob Koerner.</p> <p>Up to 1836 there were eight or ten acres cleared on the Koer-ner survey, about seven or eight acres cleared and in fence on the Gruber survey, and about twenty acres cleared on the Krieg survey. Krieg left there about the year 1834, having sold to his son John Jacob Koerner. Woolbaugh moved into the Krieg house when Krieg left, and remained there a short time, when John Jacob Koerner moved in, and has occupied it ever since.</p> <p>When Krieg left, he had a small portion of the land cleared over on the Jacob Gross tract, and at the time of the trial there were but thirty or forty acres cleared on the Krieg survey, about one-half of which was on the Gross tract.</p> <p>Defendants gave in evidence, and relied upon the title of John Jacob Koerner to the land surveyed for Krieg, in order to defeat the plaintiff’s recovery of that part of the Jacob Gross tract, included in said Krieg survey.</p> <p>Defendants also, under objection and exception by plaintiff, gave evidence of the assessment and payment of taxes by them, in Pike county, from the year 1823 to the erection of Monroe county, to wit, in 1836; and also in Monroe county from that time up to the year 1856.</p> <p>Plaintiff, to rebut the claim of title by the defendants, under the Statute of Limitations, gave evidence of two entries upon, and surveys of the land, made by agents of the owners of the legal title; one made by Daniel E. Labar, in August 1834, the other by Melchoir Spragle, in May 1854, and contended that these entries and surveys interrupted the running of the Statute of Limitations, and defeated the defendants’ title under said statute. It was also contended for the plaintiff that the Statute of Limitations did not commence to run until the 20th of September 1833, the date of the deed from the Commonwealth to George De B. Keim.</p> <p>It was also claimed for plaintiff that John Krieg, having originally settled, built, and improved upon that part of the Jacob Gross tract, which is within the lines of the Morris survey (an older survey which interferes with the former), the cutting of timber by Krieg on the Gross tract, outside of the interference, and the extension of his lines, so as to include a portion of the Gross tract, outside of said interference, was not such a possession as gave title, under the Statute of Limitations, to such part of the Gross tract as was outside of the interference.</p> <p>The court below (Bakkett, P. J.), after stating the main facts of the case, charged the jury as follows: — “ This is a plain contest between a perfect legal title on the one side, and an adverse possession on the other, and upon that point the case is put to the jury, with the following instructions, viz.:—</p> <p>“ 1. Notwithstanding the defendants entered without colour of title, they may avail themselves of an adverse possession, if it was continued uninterruptedly, for twenty-one years. They did enough to show an adverse holding, if the jury believe the evidence. The Statute of Limitations, under the Act of 1843, did commence to run in favour of their title as soon as they began to reside upon, clear, improve, and cultivate the land.</p> <p>“2. If the jury believe that surveys were made by the claimants in 1822, or 1823, and the boundaries of each claim marked upon the ground, and that they resided upon the land, using and occupying the woodland as farmers usually do, they had the actual possession to the extent of their lines. That actual possession, if continued for twenty-one years, would be sufficient to defeat the mere constructive possession of the owner of a legal title to an unseated tract of land.</p> <p>“ 3. Applying these principles of law to the undisputed evidence in this case, the limitation commenced to run in favour of the defendants’ title in 1822, and continued to run down to 1856, when this suit was brought, a period of thirty-four years, long enough to perfect a title against all the world. If that was an open, notorious, and hostile possession, uninterrupted during the time with the exercise of acts of ownership, and the clearing and cultivation of part of the land, just such a case is presented as was contemplated by the Act of 1785.</p> <p>“4. John Krieg’s improvement covered a part of the Jacob Gross tract. His buildings are not upon it, but if the jury believe that he claimed to the Gruber line, and had land cleared, which he occupied and farmed, upon the Gross tract, uninterruptedly for twenty-one years, it gives to his claim a good title to the land included in his survey. These defendants were not in possession of that part of the tract, and do not claim it.</p> <p>“ 5. As we have declared the law under the undisputed evidence in the case the plaintiff cannot recover, unless there was such an entry made during the time by the owners of the legal title as suspended the running of the Statute of Limitations. This is the main question in the case, and is one of fact for the jury, in view of whatever light we may be able to give you- as to what will constitute a good entry. We have been asked to give you binding instructions upon that subject, which we decline to do, believing it to be a question of fact for the jury. An entry must be made by some one having title, or be authorized by a person having title to the land. Having title, and the right 'to enter it, must be done by some open and public act calculated to put the claimant by adverse possession on notice of the title and claim. Running the lines with a distinct declaration of title and claim would be sufficient. If made to the party in possession, or communicated to him in any manner, it would be still more plain. The entry must have been made with a view of asserting title, and making claim to the possession of the lands. If so, the entry was complete.</p> <p>“ It is for the jury to say whether the acts and declarations of Daniel E. Labar, when surveying the lands for Keim and Gris-com, was a distinct assertion of title for them. If it was, it interrupted the running of the statute, and must defeat the defendants’ title. Their title was not completed at the time, and if it commenced to run again, Spragle’s survey was made before twenty-one years had expired.</p> <p>“If the jury believe that the acts and declarations of Labar were an assertion of title made upon the ground, for the owners of the legal title, their verdict should be for the plaintiff; if not, they should find for the defendants.”</p> <p>Under these instructions there was a verdict and judgment for defendants. Whereupon the plaintiff sued out this writ, averring that the court erred—</p> <p>1. In admitting in evidence the certified transcripts from the seated assessments of Middle Smithfield and Price townships, Pike county, from the year 1828 down to the year 1836, inclusive, showing assessments of Isaac Gruber, John Krieg, and George Jacob Koerner, being the matter referred to in plaintiff’s first bill of exceptions, and which were objected to by the plaintiff, first, because other names are in said transcripts besides the parties to this suit, or those under whom they claim; second, that the certificate is not evidence in itself of the assessment of seated land; third, that they are not properly certified; and, fourth, that any assessment of taxes upon the Jacob Gross tract is illegal, and cannot be given in evidence, it being a Nicholson tract of land.</p> <p>2. In charging the jury as follows: — “Notwithstanding the defendants entered without colour of title, they may avail themselves of an adverse possession, if it was continued uninterruptedly for twenty-one years. They did enough to show an adverse holding, if the jury believe the evidence.”</p> <p>3. In charging the jury as follows: — “ John Krieg’s improvement covered part of the Jacob Gross tract. His buildings are not upon it, but if the jury believe that he claimed to the Gruber line, and had land cleared, which he occupied and farmed upon the Gross tract, uninterruptedly for twenty-one years, it gives to his claim a good title to the land included in his survey.”</p> <p>4. In charging the jury as follows: — “These defendants are not in possession of that part of the tract (the Krieg. survey), and do not claim it.”</p> <p>5. In charging the jury as follows: — “ The Statute of Limitations, under the Act of 1843, did commence to run in favour of their (the defendants’) title, as soon as they began to reside upon, clear, improve, and cultivate the land.”</p> <p>6. In charging the jury as follows : — “ Applying these principles of law to the undisputed evidence in this case, the limitation commenced to run in favour of the defendants’ title in 1822, and continued to run down to 1856, when this suit was brought, a period of thirty-four years, long enough to perfect a title against all the world. If that was an open, notorious, and hostile possession uninterruptedly during the time, with the exercise of acts of ownership and the clearing and cultivation of part of the land, just such a case is presented as was contemplated by the Act of 1785.”</p> <p>7. In charging the jury as follows: — “As we have declared the law, under the undisputed evidence in the case, the plaintiff cannot recover unless there was such an entry made, during the time, by the owners of the legal title, as suspended the running of the Statute of Limitations. This is the main question in the case, and is one of fact for the jury, in view of whatever light we may be able to give you as to what will constitute a good entry.”</p> <p>8. In charging the jury as follows: — “ We have been asked to give you binding instructions upon that subject (the subject mentioned in that part of the charge quoted in the preceding specification), which we decline to do, believing it to be a question of' fact for the jury.”</p> <p>9. In charging the jury as follows: — “ An entry must be made by some one having title, or be authorized by a person having title to the land. Having title and the right to enter, it must be done by some public and open act calculated to put the claimant by adverse possession on notice of the title and claim. Running the lines with a distinct declaration of title and claim would be sufficient. If made to the party in possession, or communicated to him in any manner, it would be still more plain. The entry must have been made with the view of asserting title, and making claim to the possession of the lands. If so, the entry was complete. It is for the jury to say whether the acts and declarations of Daniel E. Labar, when surveying the land for Keim and Gris-com, was a distinct assertion of title for them. If it was, it interrupted the running of the statute, and must defeat the defendants’ title. Their title was not complete at the time, and if it commenced to run again, Spragle’s survey was made before twenty-one years had expired. If the jury believe that the acts and declarations of Labar were an assertion of title made upon the ground for the owners of the legal title, their verdict should bo for the plaintiff. If not, they should find for the defendants.”</p> <p>, 10. In negativing the 2d point put by the plaintiff, viz.: “That the Statute of Limitations did not commence to run as against tlie plaintiff, or those from whom be derived title, until after the sale and conveyance, by the Commonwealth, to George De B. Keim.”</p>

<p>Appeal from the Common Pleas of Philadelphia.</p> <p>This was an appeal by John W. Patteh from the decree of the court below confirming the report of the auditor appointed to audit, settle, ánd adjust the accounts of Isaac S. Waterman, assignee of White, Stevens & Co. In 1857, White, Stevens & Co. made an assignment to Isaac S. Waterman, in trust for creditors. On the 28th of November 1858, the account of the assignee was filed, and referred by the court to Charles E. Lex, Esq., as auditor, who, after hearing the case, filed an elaborate report, disjoosing of all the questions submitted to him. Among the creditors of White, Stevens & Co. were the firm of S. & W. Welsh, who presented a claim of $2309.11, balance due on five notes amounting to $23,239.65, which they held under the following circumstances:—</p> <p>On the 11th day of July 1857, Messrs. S. & W. Welsh sold to Messrs. White, Stevens & Co. a large quantity of sugars in hogsheads, by sample, amounting in value to the sum of $41,831.86, for which amount they took nine notes of White, Stevens & Co., for $4647.93 each at four months. The sugars, at the time of sale, were stored in the warehouse of Messrs. Welsh. Part of the sugars had been delivered, and four of the notes sold by them in the market, when the failure of Messrs. White, Stevens & Co. took place, and their assignment was made. . The five notes unpaid were of the following dates and amounts:—</p> <p>November 9th 1857 $4647.93.</p> <p>“ 10th “. 4647.93.</p> <p>“ 14th “. 4647.93.</p> <p>“ 18th 4647.93.</p> <p>“ 21st “. 4647.93.</p> <p>Messrs. Welsh declined delivering the remainder of the sugars, in consequence of the failure and assignment, and sent to Messrs. White, Stevens & Co. the following note :—</p> <p>“ Philadelphia, November 3d 1857.</p> <p>“Messrs. White, Stevens & Co., — Gentlemen: We hereby notify you that we will retain the balance of sugar per D. G. Wilson, as security for the notes described below, amounting to $23,239.64. Our receipt for these said notes which, when paid, will be in full for sugar. Therefore, if the notes are paid at maturity, we will deliver the sugar; but if unpaid, we will then sell the sugar, and apply the proceeds towards the payment of said notes. “ Yours, respectfully,</p> <p>“(Signed) “ Samuel & W. Welsh.</p> <p>“ Your note due November 9th . . . $4647.93</p> <p>“ “ “ 10th . . . 4647.93</p> <p>“ “ “ 14th . . . 4647.93</p> <p>“ “ “ 18th . . . 4647.98</p> <p>“ “ “ '"^lst . . . ' 4647.93</p> <p>“ $23,239.65.”</p> <p>They subsequently sold them in the market, realizing therefrom the net sum of $21,026.28. The testimony given in the case of White against Welsh, decided by the Supreme Court, and reported in 2 Wright 396, was considered in evidence before the auditor. From the testimony of Thomas A. Newhall, a witness examined upon the trial, who purchased from Messrs. S. & W. Welsh the sugars they had thus retained, the terms upon which the sale was made was a credit of six months, interest at 9 per cent, and, by statement of Messrs. S. & W. Welsh, entitled in the paper-book, “Statement of S. & W. Welsh, not communicated till trial,” but offered in evidence on the trial by the plaintiffs; the balance due Messrs. S. & W. Welsh, November 14th 1859, was $2394.11.</p> <p>On he 14th of November, when the sugar was sold to pay the notes then due, it was expressly stipulated with the purchasers, that if the notes of the 18th and 21st were paid, the sale of that proportion should be cancelled.</p> <p>The Messrs. Welsh claimed that a dividend should be allowed them on the full amount of the five notes held by them, amounting to $23,239.65, less $20,845.53 net received on account; alleging that the sugars were held as collateral, and that, according to the decisions in Pennsylvania, the dividend to which the creditor is entitled is the amount of indebtedness at the time the assignment was made, without regard to any collaterals he may hold, or the proceeds arising therefrom that may come into his hands.</p> <p>On the other hand, it was argued that the retention of the sugars, and stoppage in transitu by the Messrs. Welsh, was a rescission of the contract, and an election on their part to take the sugars, and look to them alone for payment of the remaining indebtedness; that having sold some of the notes, they were not entitled to a dividend until the full amount, as received by them from the sale of the sugars, was brought into a common fund with the rest of the assigned estate; and that, under all circumstances, they were only entitled to a dividend on the balance remaining due, and not on the full amount of the notes.</p> <p>The auditor reported in favour of the claim, and allowed a dividend on $2394.11, with interest to June 14th 1862, the usual time of confirming auditors’ reports under the rules of court.</p> <p>To this report exceptions were filed by John C. Bullitt, attorney for other creditors of White, Stevens & Co., which, on hearing, were dismissed by the court, and the report confirmed. This appeal was then taken, as above stated, by John W. Patten, a creditor of White, Stevens & Co., who assigned for error the confirmation of the report of the auditor.</p> <p>The stoppage in transitu or retainer of tbe sugar, taken together with the subsequent resale, the time of that resale, and the manner in which it was conducted, was a rescission of the contract of sale, and consequently Messrs. Welsh have no right to recover on notes given as the consideration of the contract; or if not a rescission of the whole contract, then a rescission pro tanto; which, as the proportion of sugar retained to the whole was much greater than that of the notes retained to the original number (fths to fths), would equally preclude them from recovering on the notes in question.</p> <p>■■ The exercise of the right of stoppage in transitu by a vendor is in itself a rescission of the contract: Ross on Contract of Sale, pp; 248, 249, 252; Litt v. Cowley, 7 Taunton 170; Went-worth v. Outhwaite, 10 M. & W. 451; 10 B. &, C. 99, 682. Messrs. Welsh had the right to rescind their contract with White, Stevens & Co., and they exercised that right.</p> <p>The insolvency of White, Stevens & Co. did not in itself operate as a rescission, but it gave to Messrs. Welsh the right to rescind if they saw fit: 2 Parsons on Contracts, p. 191; Addison on Contracts, p. 48-57.</p> <p>The letter of Messrs. Welsh, dated November 3d 1857, or about one month subsequent to the failure of White, Stevens & Co., indicated no intention on their part to exercise this right; and their only reply to the demand for the sugars made by Mr. Waterman, December 3d 1857, was a reference to that communication. There was no direct avowal by Messrs. Welsh of any intention to rescind the contract, but the contrary. It was unnecessary for them to make an express declaration of intention in order to effect a rescission of the contract. This could be done as effectually by the course of conduct they chose to adopt, and it was done by the resale to T. A. Newhall & Co., on November 24th 1857. This resale was made before all the notes in question had matured, and before Mr. Waterman had made the demand, by their answer to which Messrs. Welsh professed to still retain the sugar, subject to his order, if the notes were paid at maturity. In making it, Messrs. Welsh treated the sugar as absolutely their own, and acted without regard to the duties which the law imposes on those who deal with the property of others. They treated the contract as rescinded, and cannot, therefore, now claim any benefit under it.</p> <p>If it was the intention of Messrs. Welsh to sell the sugar as the property of White, Stevens & Co., it was their duty to notify them of the time when and the place where the resale was to be made ; and a resale without such notice is in effect a rescission: 2 Kent 395, 480; Sands v. Taylor, 5 Johns. 395; Girard v. Tag-gart, 5 S. & R. 19; and Adams v. Minnich, therein cited. Also McEachron v. Randles, 34 Barbour’s S. C. R. 301.</p> <p>Where property is pledged as security for a debt, the pawnee cannot sell it without notice to the debtor of the time and place of sale : Tucker v. Wilson, 1 P. Wms. 261; Lockwood v. Ewer, 9 Mod. 275; De Lisle v. Priestman, 1 P. A. Browne 176; Stearns v. Marsh, 4 Denio 227.</p> <p>It is equally material for the interests of a vendee “ who is to be charged with any deficiency that may arise upon a resale, that he should have notice of the time and place of the resale, and none the less reasonable and just that he should have such notice.”</p> <p>2. If Messrs. Welsh are entitled to any dividend, it must be calculated upon the amount actually due at the time when the dividend is ascertained, or, in other words, upon the $1199.52, which, with interest from November 14th 1857, is all they can claim as due.</p> <p>The rule in bankruptcy adopted in England was, that the creditor was entitled to claim upon the amount due to him at the( time he proved his debt: Royal Bank of Scotland, 2 Rose’s Cases in Bankruptcy, p. 202 and note; s. o., 19 Yesey, Jr., p. 311; Ex parte Wyldman, 2 Yesey 114; Ex parte Bloxham, 5 Yesey, Jr., 448; Ex parte Leers, 6 Id. 645. The proof of the claim in bankruptcy corresponds in time with the proof of the claim before the auditor, in cases of assignments in this state. See also Bank of Pennsylvania v. McCalmont, 4 Rawle 315, and Per-ritt v. Pittfield, 5 Rawle 166.</p> <p>So far as the rights of the other creditors of White, Stevens & Co. are concerned, the sugar retained was precisely in the position of the estate of some other person liable for the whole amount of the five notes. By the resale of it, Messrs. Welsh were paid a dividend of more than ninety per cent, of the debt due to them. They cannot, therefore, now claim a dividend on more than is actually due.</p> <p>The rule contended for is that which the good sense of this community at a very early period settled upon; and from the absence of any reference to the subject in the reports, it may be fairly inferred that it was acted upon and unquestioned until the decision of the very recent ease of Miller’s Appeal, 11 Casey 481. But the opinion in this case expresses no intention to overrule or even qualify the rule laid down in the cases of Bank of Pennsylvania v. McCalmont, and Perritt v. Pittfield.</p> <p>The doctrine of Miller’s Appeal is one which cannot be readily admitted. A general assignment for the benefit of creditors does not possess that certainty either as to the parties for whom the benefit is meant, or as to the interests they are respectively to take to create an express trust in the technical sense: Steere v. Steere, 5 Johns. Ch. 1; Knight v. Boughton, 11 Cl. k Fin. 513; Mercer v. Stark, 1 Sur. & Marsh’s Ch. 479; Reeves v. Baker, 18 Jurist 588; Garrard v. Lauderdale, 3 Sim. 1; 20 Myl. & K. 492; 6 M. Gr. & Scott 136; Brooks v. Marbury, 11 Wheat. 78; 2 Gallison 557; Vandyke v. Christ, 7 W. & S. 374; Twelves v. Williams, 3 Wh. 485.</p> <p>It is of course admitted that, under the common and statute law of this state, an assignee under such an assignment, is bound to apply the property assigned to him to the payment of the debts of the assignor, and that the creditors, by taking the proper steps, can compel him to do so; but that does not constitute him an express trustee in the technical sense for each particular creditor. An executor upon whom like duties are imposed, and who is subject to like control, is not such a trustee, and “it is not until the debts and legacies are paid, and the residue ascertained and appropriated,” “that his representative character ceases,” and he becomes “ subject to the ordinary rules respecting trust property.” See Adams on Equity, p. 251, and authorities in note. A purchaser from an assignee is not affected with notice of the trust, and is not bound to see to the application of the purchase-money, as he would be in case of a regular trust. The assignee can sustain or defend a suit in equity, without joining the creditors as parties. His possession is adverse to that of the creditors, and therefore lapse of time will bar his liability. But no time bars the liability of an express trustee: Beckford v. Wade, 17 Ves. 99; Wederburn v. Wederburn, 2 K. 722; Drysdale’s Appeal, 2 Harris 531; Kerr v. Webb, 7 Legal Int. 7; Ingraham v. Cox, 1 Pars. 70, 487.</p> <p>In the case of an express trust, the court will make no decree affecting the rights and interests of an absent cestui que trust; but the right of a creditor under an assignment is not treated as existing until he comes forward, establishes and enforces it in the manner provided by our several Acts of Assembly: Rush et al. v. Good, 14 S. & R. 226; and the power exercised by the court in regulating the amounts paid, so that no creditor shall, in any event, receive more than the amount of the debt due to him, seems equally inconsistent with the doctrine of a vested ownership in a particular distributive share, from the time when the assignment is made.</p> <p>Taking into consideration, then, the inconsistencies and con-, fusion in which the admission of this doctrine must involve the whole law connected with the subject of assignments for the benefit of creditors, together with the utter absence of any authority to sustain it, and the positive authority of long-established usage, and the cases first cited to the contrary, it is respectfully urged that the case of Miller’s Appeal cannot be regarded as furnishing the proper rule in cases of this character. The position of an assignee in trust for the benefit of creditors, seems to be that of a mortgagee in trust for the benefit of creditors. The assignee is the legal owner of the assigned property. The equity of redemption remains in the assignor. A creditor has merely a right to have his debt paid ont of the proceeds of the assigned estate pro rata with the other creditors. When his debt is extinguished by payment, either by the debtor himself or from the proceeds of any securities which he may hold, his right to have satisfaction out of the assigned property ceases. What difference can there be between the extinction of the whole of a debt and a part of it, as regards the right of that which is extin•guished to participate in the proceeds of the assigned estate ?</p> <p>The decision in Miller’s Appeal not only ignores that which would seem to be the true equity of allowing to those creditors who have but one security the benefit of the double security, which may be held by another creditor, but actually works out the gross injustice of giving to one creditor the whole of his debt, while another may only get a small fraction of the amount due to him.</p> <p>It is submitted that Miller’s Appeal was decided under a misapprehension on the part of the court as to the principle determined in Morris v. Olwine, 10 Harris 441, and Keim’s Appeal, 3 Casey 42, that it is not in accordance with the laAV, and is not authority in this case.</p> <p>The propositions relied upon to sustain the appeal, are, first, that S. & W. Welsh rescinded the contract between them and White, Stevens & Co., and therefore were not entitled to claim as creditors any portion of the funds in the hands of the as-signee ; second, that if entitled to anything, they can only get a dividend pro rata with the other creditors upon the sum of $1199.52, the balance of their debt unsatisfied by a sale of the sugars. That the auditor erred in awarding to them the whole of the balance claimed by them, when the funds of the estate were insufficient to pay all the debts in full.</p> <p>The first proposition submitted by plaintiff’s counsel cannot be affirmed without overruling the decision of this court in the case of White v. Welsh, reported in 2 Wright 396. The same arguments, supported by the same authorities as are now cited, were then submitted to this court by the counsel now representing this appellant. There is no such thing known to the law as the right to rescind part of a contract. A contract can never “ be rescinded without mutual consent, if circumstances be so altered by a part execution that the parties cannot be put mstatu quo; “for, if it be rescinded at all, it must be rescinded in toto 2 Kent 480. We submit, that though there was originally a conflict of decision and opinion on the subject, there is no conflict in the modern decisions. The right of stoppage in transitu, and the analogous right of retaining possession of undelivered goods in case of the open insolvency of vendee, is now well established to be an incident of every contract of bargain and sale; the promise of the vendee to pay at a future day involving on his part an engagement that he would remain and then be able to pay, which engagement is broken when he avows himself insolvent, and unable to pay his debts generally; hence the right of vendor, under the original contract, to stop executing it, and retain possession. The authorities cited in support of this proposition in the argument, as reported in the case of White v. Welsh, 2 Wright 396, would, we submit, establish it, were it necessary, in view of the fact that this court have there so decided it.</p> <p>The second proposition cannot, as is admitted in the appellant’s argument, be answered in his favour without overruling the recent well-considered case of Miller’s Appeal, 11 Casey 481; but in point of fact, the case of Keim’s Appeal, 3 Id. 42, is equally to the point as Miller’s Appeal, and the same principle was acted on in Morris v. Olwine, 10 Harris 441.</p> <p>The assertion and assumption that “the rule contended for by the appellant is that which the good sense of this community at a very early period settled upon; and from the absence of any reference to the subject in the reports, it may be fairly inferred that it was acted upon and unquestioned until the decision of the very recent case of Miller’s Appeal,” we respectfully submit are purely gratuitous, and that the very contrary is the legitimate deduction to be made from the admitted entire absence of any contrary decision or dictum in the reports.</p> <p>It may also be fairly assumed that if the practice and doctrine of our sister states, or any of them, were different from what it is in Pennsylvania, as decided in Miller’s Appeal, and the other cases referred to, the learned counsel for the appellant could and would show it by reference to adjudicated eases.</p>

<p>Action on sheriff’s official bond barred by plea and proof of former action pending.— Remedy against sheriff on his bond, exclusively under the Act of June 14¡th 1836.</p> <p>1. In an action upon a sheriff's official bond the pendency of a former action upon the same bond, may he pleaded in bar: and if found by the verdict the plea is good.</p> <p>2. The remedy of a party interested in the official bond of a sheriff is ex-«lusively under the provisions of the Act of 14th June 1836.</p>

<p>ERROR to tbe Common Pleas of Susquehanna county.</p> <p>This was an action of trover by William K. Hatch against David Bartle and Keturah Bartle, to recover damages for the conversion of certain chattels which had been sold to the plaintiff at constable’s sale, as the property of the defendant, David Bartle. Under tbe rulings of tbe court (Wilmot, J.), there was a verdict and judgment in favour of the defendant; whereupon this writ was sued out by the plaintiff.</p> <p>All the material facts of the case and the errors assigned will be found in the opinion of this court.</p>

<p>Construction of will.— Trust to fay money to cestui que trust at discretion of trustee, with remainder to children of another, interest of parties under.</p> <p>1. Technical rules of construction are only applicable to wills in cases of doubtful interpretation, and are never allowed to defeat a plain intent expressed.</p> <p>2. Where a testator bequeathed a certain fund to a trustee, in trust to pay the interest at his discretion to A. B., and in ease of his death, “ without leaving issue,” to pay the principal to the children of 0. D., it was Held,</p> <p>(1.) That the trust created, was a good one in Pennsylvania:</p> <p>(2.) That A. B. took no absolute interest under the will, but simply an. interest in the income of the fund:</p> <p>(3.) That the bequest over to the children of C. D. was good:</p> <p>(4.) That the body of the legacy was not attachable by a creditor of A. B.</p>

<p>Appeal from the District Court of Philadelphia.</p> <p>This was an appeal by Julia A. Britton from the decree of the District Court upon exceptions filed to the report of the auditor appointed to distribute the proceeds of the sheriff’s sale of the real estate of Conrad M. Whitaker, which was sold on an execution against him at the suit of Bean & Wentz.</p> <p>All the material facts of the case will be found in the opinion of this court.</p>

<p>CERTIFICATE from the Court at Nisi Prius.</p> <p>This was a proceeding in equity, founded on a bill filed by S. J. Walker against William Milligan, setting forth, that before the making of the agreement hereinafter mentioned, he was seised in fee of certain real estate in the city of Philadelphia, hereinafter particularly described, and being so seised thereof, he and the said William Milligan entered into an agreement respecting the sale and purchase of the same, in the words following, that is to say: — ■</p> <p>“ Articles of agreement, made and entered into this 11th day of May, by and between Samuel Jones Walker, of the city of Philadelphia, of the first part, and William Milligan, of the said city, of the second part. Witnesseth, That the said Samuel Jones Walker doth hereby sell and agree to convey, by good and sufficient deed, in fee, to the said William Milligan, the following described real estate: All that certain lot or piece of ground, and the two brick messuages or tenements thereon erected, situate on the south side of Race street, between Front and Second streets, in the said city of Philadelphia; containing in front thirty feet, and in length or depth seventy-six feet and a half. Bounded northward by Race street aforesaid, eastward partly by a four-feet-wide alley and partly by ground formerly of James Parrock, deceased, southward by ground formerly of Edward Warner, deceased, and westward by ground formerly of Nicholas Cas-sell. For and in consideration of which the said William Milli-gan agrees to pay to the said Samuel Jones Walker the sum of §6000; §3000 thereof on the 20th day of May, or sooner if the deed shall be sooner delivered, and the balance in one year from the 1st day of June next, with interest from the 1st day of June 1863. In witness whereof, the said parties have hereunto set their hands and seals, the 11th day of May, A. D. 1863.”</p> <p>That he has offered to convey the said premises, in the said agreement mentioned, unto the said William Milligan, by good and sufficient deed, and to give possession of said premises unto the said William Milligan; but the said William Milligan, alleging that said complainant’s deed -would not convey a good title in fee to the said premises, hath refused and still refuses to accept the same, and to pay the purchase-money and give the securities mentioned in the above-recited agreement, whereas the complainant charges that the said deed so offered by him would convey a good title in fee to the premises aforesaid. That the said real estate was fully and absolutely owned and possessed by Elizabeth Y. Walker, the mother of the said complainant, up to the time of her decease, in 1862. That by her last will and testament, which has been duly admitted to probate, she devised the said real estate to this complainant, in the following words : “I give and bequeath unto my son, Samuel Jones Walker, all those my two three-story brick houses and lots of ground, with the appurtenances thereunto belonging, situated on Sassafras street, between Front and Second street, in the city of Philadelphia, state of Pennsylvania, being numbers 22 and 20-J. He, my said son, to take the rents and profits arising therefrom for his sole use and behoof during the term of his natural life,'he to let, lease, or let on ground-rents, as he may think proper, but not to sell; nor shall the above-mentioned property be liable for the payment of any debts that he may contract; and at the decease of my said son, Samuel Jones Walker, to his lawful issue, child or children, as may be then living, or to the lawful issue of such child or children as may be then dead, share and share alike, and for the want of such issue, to my rightful heirs for ever.” That said Elizabeth T. Walker left no children nor lineal descendants except complainant, but left collateral relatives. That complainant is and has been for the last fourteen years married, but has not now nor ever has had child or children. And praying that said William Milligan may be compelled by the decree of this court, specifically, to perform the said agreement, and to pay to this complainant the purchase-money mentioned therein, and to execute a bond and mortgage to complainant for the remaining sum of $3000, payable in one year from the 1st day of June next, with interest from the 1st day of June 1868, complainant being willing, and hereby offering, specifically, to perform the said agreement on his part; and for such further or other relief in the premises as to this honourable court shall seem meet and this case may require. With the usual prayer for process, &c.</p> <p>By agreement in writing, C. S. Pancoast appeared for defendant, and waived the issuing of the subpoena. The defendant, by his answer, admitted the execution of the agreement as set forth in the bill, and averred his willingness to perform its conditions, but alleged that complainant was not able to make title to the property, he having, under the will of Elizabeth Y. Walker, only an estate for life therein.</p> <p>The learned judge at Nisi Prius (Read, J.), on hearing, dismissed the bill; which was the error assigned before the court in banc.</p>

<p>Liability of firm, for debts contracted by ■partner in Ms own name, in trust for partnersMp purposes.</p> <p>1. Where a partner buys real estate in his own name and gives his individual bonds and mortgage in part payment therefor, the firm is not liable to the seller for the unpaid purchase-money, though it appear by the firm-books that the land was bought on firm account, and a declaration of trust was after-wards executed by the purchaser, but not recorded, declaring that the money paid was partnership funds, and that the land was held by him in trust as partnership property.</p> <p>2. After failure of the firm, on sale of the land by their assignee, the partnership creditors were held alone entitled to share in the proceeds, and not the vendors, who could claim only against the purchasing partner.</p>

This was action of assumpsit, brought November 7th 1860, by James Stedman against George Arnold, to recover the amount due to plaintiff from one Barrett, which sum it was alleged the defendant had assumed to pay, in which there was a judgment for plaintiff. Tbe facts of the case and the errors assigned by the plaintiff in error are so fully and clearly stated in the opinion of this court, that any further or other statement is unnecessary.

This was an action of debt by Jesse Stanley against William Southwood, upon an award of arbitrators, which had been made under an amicable submission. The plaintiff filed two counts upon the award. The first count set out the award in full, and all the papers referred to therein; the second was a general indebitatus count. To these the defendant at first pleaded nil debet.

This was an action of assumpsit, brought by Sanford & Co., bankers, of Buffalo, New York, against Starr & Payne, coal dealers, of Erie, on a draft dated July 25th 1857, drawn by defendants to their own order on Messrs. Latham, Tozer & Perry, of Oswego, New York, for $852.56, at ninety days, payable at the Metropolitan Bank, New York, endorsed Starr & Payne, and accepted by Latham, Tozer & Perry.

This was a feigned issue under the Sheriff’s Interpleader Act, in which R. H. Maynard, trustee of Louisa Morrill, was plaintiff, and Townsend & Crane and John C. Martien and John W. Graydon, assignees of Graydon & McCreary et al., were defendants ; to determine tbe right to a stock of merchandise in a store occupied by George W. Morrill, which had been levied on under five writs of fieri facias, at the suit of certain creditors of said G. W. Morrill, in which, under the…

<p>Appeal from the Orphans’ Court of Northampton county.</p> <p>This was an appeal by Elizabeth P. Porter, Harriet Porter, James M. Porter, Jr., A. Parker Porter, Mary J. Porter, and Emma W. Porter, legatees named in the will of Thomas McKeen the elder, deceased, from the decree of the Orphans’ Court, confirming the report of the auditors on the first account of Thomas McKeen, Jr., Henry McKeen, and James M. Porter, executors, &c., of Thomas McKeen the elder, deceased.</p> <p>Thomas McKeen died November 25th 1858, having made his will, in which, after sundry bequests and devises to his wife and others, relatives, friends, and'servants named therein, among whom were the above-named appellants, he provided:—</p> <p>“ I give and bequeath the residue and remainder, if any, of my estate to be equally divided amongst the whole of heirs already named in this my will, proportioned agreeably to the several amounts given to each in the body of this my will.”</p> <p>The point in controversy arose upon this residuary clause.</p> <p>The testator left no children, but the following nephews and nieces: — Thomas McKeen, Henry McKeen, Mrs. Jane Duffin, Mrs. John Agnew, Mrs. Elizabeth Boyd, wife of Thomas Boyd, Mrs. Margaret Miller, James McKeen, Mrs. Mary Wilson, Mrs. Mary Spence, and Mrs. Elizabeth Boyd, wife of John Boyd. The first six are named in the will; the last four are not, and the last three live in Ireland. The appellants were not of kin to the testator.</p> <p>The auditors decided that the word “heirs,” as used bj the testator, referred only to the six nephews and nieces named in the will, and distributed the whole residue amongst them, ex-eluding the appellants.</p> <p>To this report the following exceptions were filed by the appellants :—</p> <p>1. The auditors erred in awarding the residue to the six nephews and nieces named in the will.</p> <p>2. The auditors erred in not distributing to each of the said exceptants the 1-107 part of the residue, to wit, $179.87.</p> <p>The Orphans’ Court dismissed the exceptions, but gave no opinion on this part of the case; which was the error assigned.</p> <p>argued that the whole will showed, that the intention of the testator was to apply to the residue of his estate the same scheme of distribution which he had adopted in disposing of the bulk of it, and that he did not mean to use the word “heirs” in the residuary clause in its precise legal and technical sense. That as testators are generally inops eoncilii, and scriveners seldom well versed in the rules of law and chancery, it would often defeat the intention of testators to construe their wills according to artificial rules, of which they were ignorant: Hunter’s Estate, 6 Barr 97; Herman v. Bous-laugh, 1 Harris 352; Ellmaker v. Ellmaker, 4 Watts 89; Hal-lowell v. Phipps, 2 Whart. 376; Braden v. Cannon, 1 Grant’s Cases; Bradhurst v. Bradhurst, 1 Paige 343 ; Sherwood v. Sherwood, 3 Brad. Sur. Rep. 230; Burtis v. Doughty, Id. 291, and cases there cited; Cook v. Weaver, 12 Georgia 47; Dugan v. Livingston, 15 Miss. 230; Jackson v. Topping, 1 Wendell 388; Brimmer v. Sokier, 1 Cush. 118.</p> <p>That in this case the residuary bequest was only collateral to the main will; that the words “ the whole of my heirs already named in this my will,” meant all who had been named, and whom, in common parlance, he had made “heirs” by giving them legacies. If he had intended to select six of them out of the twenty-eight, he would have said so. He was not especially partial to his technical heirs, for four of them are not named in the will at all.</p> <p>The case of Collier v. Collier, 3 Ohio (N. S.) 369, is very like this. As also Wier’s Will, 9 Dana (Ky.) 442; De Kay v. Irving, 5 Denio 646; Morton v. Barrett, 22 Maine 257; Thomas v. White, 3 Littell (Ky.) 177; Burwell v. Mandevill’s Ex’rs., 2 How. (U. S.) 500; Siemer v. Siemer, 2 Gill & Johns. (Md.) 100; Harper v. Wilson, 2 A. K. Marsh 465. ^</p> <p>In the' following cases the word “ heirs” was held to mean children: — Cruger v. Heyward, 2 Dessaus. 94; Noon v. Henderson, 4 Id. 459; Bowers v. Porter, 4 Pick. 198; Ellis v. Essex, &c., Bridge, 2 Pick. 243; Bryant v. Deberry, 2 Hayw. 356; Sbepberd v. Nabors, 6 Ala. 631; King v. Beck, 15 Ohio 559; Eby y. Eby, 5 Barr 461; Deboe v. Lowen, 8 B. Mon. 616; Bra-den v. Cannon, 1 Grant’s Cases; Fisk v. Keene, 35 Maine 349; Bailey v. Patterson, 3 Rich. Eq. 156 (S. Car.); Pratt v. Flamer, 5 Har. & Johns. 10; Ashton v. Ashton, 1 Dali. 4; Jones v. Morgan, 1 Brown’s Ch. R. 219 ; Blarr v. Snodgrass, 1 Sneed (Tenn.) 1; Williamson v. Williamson, 18 B. Mon. (Ky.) 329; Burtis v. Doughty, 3 Brad. Sur. Rep. 287.</p> <p>If words are not to have their legal meaning, to what standard are we to resort for interpretation ? Are the courts first to assume that ignorance, and not intelligence, prevails among a people where education is well nigh universal, and that the words of a will are to be construed as an ignorant and illiterate man would understand them ? Or, if the courts depart from the rule of giving technical words their “ legal acceptation, and look for their popular meaning, are they to give them such meaning as the educated, intelligent, business classes of the community accord to them ?’ Col. McKeen was not an ignorant or illiterate man, but an intelligent business man, at one time the president of-the Easton Bank, and was one of the partners of a large manufacturing firm for a long series of years. We deny that the popular acceptation of the word “heir” is, “one who is entitled to possess on the death of the former owner, whether by descent or will.” Webster gives four definitions of the word “heir.” See also Worcester’s Dictionary, in which the word is defined in the same way. In each definition and each combination of the word, it is described as a word importing inheritance.</p> <p>The word “heirs” must have its legal acceptation, unless the testator in his will has manifested a clear contrary opinion: Williams on Executors, Yol. 2, p. 926 (referring in the note to Lane v. Lord Stanhope, 6 T. R. 352; Phillips v. Garth, 3 Bro. C. C. 68; Buck v. Norton, 1 Bos. & Pul. 57; Tysson v. Wright, 2 Bligh. 1; Mounsey v. Blamire, 3 Russ. Ch. C. 386, 389); Thelluson v. Woodford, 4 Yesey 329; Hodgson v. Ambrose, Dougl. 341; see also page 927. Referring in the notes to Tys-son v. Wright, 2 Bligh 56, 57; S. p. Doe v. Gallini, 5 B. & Ad. 621; Lees v. Moseley, IT. & Coll. 589. Mounsey v. Blamire, 4 Russ. 384, is in point, as also Aspden’s Estate, 2 Wall. Jr. 440-1; Guthrie’s Appeal, 1 Wright 13; Hileman v. Bouslaugh, 1 Harris 351 — 2.</p> <p>“ Even in a will supposed to be made when the testator is inops concilii, the word * heirs’ has a fixed sense, which will adhere to it until ‘explained’ away; and this, ‘it has been said,’ can only be done by making the contrary intent appear so plainly, that no one can misunderstand it: 3 Bos. & Pul. 620; Tysson v. Wright, 2 Bligh 1; Auman v. Auman, 9 Harris 347.”</p> <p>In regard to the cases cited by the appellant in which “ heirs” was held to mean children, grandchildren, &c., the reasons of such decision have been that there was something in the context to warrant a departure from the usual construction; something in the language of the wills in question which showed clearly the intention of the testators that the word “heirs” should not be understood in its legal acceptation.</p> <p>The result of this whole class of cases is the doctrine undoubtedly true, that an unprofessional man may use the word “heir” as applicable to a devisee or legatee, and when it is plain that he does so, his intention is to be respected. But it would be a subversion of all the authorities in and out of the state, to deduce such an intention from the word alone. See also Gwynne v. Muddock, 14 Yesey 488 ; Baskin’s Appeal, 3 Barr 304.</p> <p>The appellants are total strangers to the blood of Colonel McKeen. The entire argument for appellants from supposed intention, based upon the word whole, can be readily answered by simply transferring the emphasis from that word to the word heirs.</p> <p>By this reading it is manifest that the testator desired to single out from the entire body of legatees those of them who were heirs, who were of his own blood, as the recipients of his residuary estate. He had made ample provision for his widow. He had remembered his other legatees who were strangers to his blood, with much liberality, and then occurs to his mind the possibility of a residue. This, if any, he determines he will give to his heirs, those who are of his own blood, who in law, as in the universal experience of the world, are recognised as having superior claims to all others to the property of deceased persons. This small distinction he will make in their favour. But these heirs have specific legacies of different amounts, and therefore he says they shall have the residue, not in equal shares, but in the proportions of their respective legacies. There are a number of them, six in all, and, therefore, to avoid the inconvenience of repeating all their names, he described them as the “ whole of heirs.” Every branch of the clause is fully satisfied by the theory that he meant “heirs” in the strict legal sense; nay, more, can only be satisfied by that theory. For if the testator had designed to give his entire estate to the whole body of his legatees (as would be the case if the appellant’s theory is correct), why did he not sáy so at once, by a direct bequest, stating the proportions in which he wished them to have it ? Certainly if he had entertained such a design he would not have resorted to the awkward and very doubtful mode of doing so that is found in the will. The testator knew perfectly well the meaning of the word “ heirs.” His very first sentence is couched in well-selected legal language. Next is the devise of his residence and lot to his wife, to hold to her, her heirs and assigns for ever, the very phraseology to create a fee simple, strict technical language. Then follows the bequest of the dividend of his interest in the wire factory to his wife during her natural life; then certain household furniture and plate without valuation; then the use of his out-lots during her natural life; then the land in Williams township, “subject to the conditions and understanding between James M. Porter, Esquire, and myself.” To which he adds, “ all of which in lieu of dower or her one-half of my estate,” showing that he understood perfectly not merely what the interest of his wife in his estate would be, at law, but the propriety and the mode of expressing clearly his intention, that she should take what he had given her in lieu of what the law would give her. Then come the pecuniary bequests framed in terse but strictly accurate legal terms. When he gives real estate at the commencement of his will he says: “I give and devise.” When he gives personal estate and money legacies, he says: “ I give and bequeath.” After the bequest of the residue and remainder to his heirs, he says: “ I do hereby vest in my executors full power to sell and convey by deed or deeds any part of my real estate.” And lastly he nominates and appoints his executors, and adds the concluding clause with the date and the attestation in the strictest legal language. On the outside of his will he adds a memorandum, in his own hand also, that certain erasures appearing on the will were made by himself, for reasons satisfactory to himself, “ revoking the legacies given by the words erased.”</p> <p>If Colonel McKeen had meant legatees instead of heirs, the words “ already named in this my will” would have been entirely superfluous. But he had other relatives who were “heirs,” but not legatees, not named in the will; therefore he is careful to exclude them by the use of the words in question. This is the strongest evidence that he knew that if he stopped at the word “heirs” it would include other persons who were not named in the will, who were not legatees or hceres faoti, as the learned counsel calls them. To avoid all question upon this subject, therefore, he takes especial pains that only those heirs who have been named in the will shall have the residue. This precaution would not only be entirely useless, but would not have occurred to him if he had meant legatees when he said heirs.</p> <p>The -widow is manifestly excluded from the residue by the express design and intention of the testator, as shown by the plain language of the will.</p> <p>The manner of distributing the residue, provided by the will, is such as to prevent the possibility of the widow’s taking any share of it, and is therefore the strongest evidence of an intent to exclude her.</p> <p>The residue is given to the whole of his heirs, “proportioned agreeahly to the several amounts given to each in the body of this my will.” All the legatees but the widow have specific amounts given them, and it is very easy to make a distribution to them in the manner directed by the will. But how are we to do this with the widow ? What is the “ amount” of her legacy ? The learned counsel say one-half, and endeavour to show it by arguing, or rather by asserting, that the testator, by the words “ all of which in lieu of dower or her one-half of my estate,” signified that he had given her one-half of his estate. In other words, this argument amounts to this, that because a testator makes a provision for his widow, which he declares shall be in lieu of her interest in his estate at law, he is to be presumed as having actually given her the precise amount of that interest. By giving her bequests in lieu of her half he gives the half itself. When he says you shall take what I give you, and shall therefore take nothing at law, he really means you shall take at law. This is the direct necessary consequence of the opposing argument.</p> <p>We argue that there was an intent to exclude the widow from the residue to be derived, from the fact that the specific bequests are manifestly designed as a full and adequate provision for her.</p> <p>We deny that the widow is an heir of her husband under our Intestate Law. Her proper title is widow. She is not of the blood of her husband, and for that reason cannot take either as heir or next of kin: 2 Black. Com. 201; 2 Will, on Executors 958-9. See also cases cited cited in note I., 1 Rop. on Leg. 106 ; 2 Jarm. on Wills. 87-38.</p> <p>If the widow cannot take personal estate under a bequest to “relations” or “next of kin,” a fortiori, she cannot take under a bequest to heirs: Storer v. Wheatly’s Executors, 1 Barr 506. See also Heck v. Clippinger, 5 Id. 385; Chapman’s Case, Dy. 333 b; Counden v. Clerke, Hob. 33; Doe v. Smith, 5 Maulé & Sel. 126, per Bell, J., p. 389.</p> <p>No person can be called an “heir” who does not take an heritable estate: Crosby v. Davis, 4 P. L. J. 193; Id. 207.</p> <p>The widow’s interest in her husband’s real estate under an intestate law is not that of heir, but is of special and peculiar character, much more limited and restrained both in quantity and quality: Bell, J., in Crosby v. Davis, before cited, p. 205; Pringle v. Harr, 5 S. & R. 536, Duncan, J.; Power v. Power, 7 Watts 205, Gibson, C. J., p. 212; Mark v. Mark, 9 Id. 410, to same point; Thomas v. Simpson, 3 Barr 60.</p>

. Oeiotitcate from the Court at Nisi Prius. This was an action on the case brought by Lipman Schwarzen-Derger against The Pennsylvania Railroad Company, for the recovery of damages for the loss of his carpet-bag, containing, as was averred, the wearing apparel of the plaintiff, $728 in gold coin, and a watch, chain, seal, and key, valued at $180.

This was a bill in equity, filed July 4th, in the Common Pleas, by Caroline D. Harris against Thomas E. McElroy, her trustee, to compel a conveyance to her of the legal estate held by him. The bill set forth, that by the will of Catharine Hollinshead, dated July 4th 1807, complainant became entitled to one undivided fifth part of all the real estate of which the testatrix died seised. That, by indenture dated May 9th 1843, recorded in Deed Book R. L. LI.

This was an action of assumpsit by Albert L. Webb and George E. Webb, trading as A. L. Webb & Brother, against George W. Mears. The suit was brought on the following draft:— “$306.83. Baltimore, March 22d 1860. “ Three months after date, pay to the order of Messrs.

<p>Appeal from tbe Orphans’ Court of Philadelphia.</p> <p>This was an appeal by Henry B. Chew, one of the residuary legatees and surviving executor .of the last will of Benjamin Chew, deceased, from the decree of the Orphans’ Court confirming the report of the auditor on the account of said Henry B. Chew and James M. Mason, executors of the last will and testament of B. Chew, deceased.</p> <p>The testator died on the 30th of April, A. D. 1844, having made a will and codicils disposing of a very large amount of real and personal property, in and by which he appointed his. wife, Mrs. Katherine Chew, his sons, Benjamin Chew, Henry B. Chew, and "William W. Chew, and his son-in-law, James M. Mason, his executors, directing that in all cases of difference of opinion, the decision of the majority should govern. Two of these executors, namely, Benjamin Chew and Mrs. Katherine Chew, were dismissed by the court, and one of them, William W. Chew, died. Notwithstanding the strong recommendation of harmony and good feeling contained in the will of the deceased, there were differences of opinion between Mrs. Chew and Benjamin Chew, on the one side, and the three remaining executors on the other, commencing soon after the testator’s death, which led to almost interminable litigation in the District Court and Orphans’ Court of Philadelphia, and the Supreme Court of Pennsylvania at Nisi Prius and in banc. Accounts were filed by the acting executors from time to time, which, after more or less litigation, were adjusted. The present case arose upon the eighth account of Henry B. Chew and James M. Mason, surviving executors of the deceased.</p> <p>On the 16th of December 1853, this account was referred to John R. Vogdes and Joseph A. Clay, as auditors, with power to audit, settle, and adjust the account, and make distribution.</p> <p>After numerous meetings, at which the auditors were met by Hon. Gr. M. Dallas, M. Mundy, Esq., and Henry J. Williams, Esq., as counsel for the accountants; the Hon. Thomas S. Bell, Hon. Joel Jones, Hon. John M. Read, William A. Jackson, Esq., William D. Marshall, Esq., and Frederick A. Brightly, Esq., for Benjamin Chew, a son, legatee, and devisee of testator, and who also claimed as creditor of the estate; and by Peter McCall, counsel for Anne S. P. Chew; the auditor, on the 18th of June 1860, filed an elaborate report, disposing of all the complicated questions which had been submitted to them. Notice of the filing of this report having been given, a number of exceptions were presented, of which fifteen were for the executors of B. Chew, deceased (requiring the auditors to report on certain facts therein mentioned), and eight for the executors; to which were added fifteen additional exceptions for the accountants and all the heirs, devisees, and legatees, except Benjamin Chew, Jr., also requesting the auditors to report the evidence on certain specified facts. Sixteen exceptions were filed by Benjamin Chew, and one for Anne S. P. Chew.</p> <p>On the 17th of December 1860, the auditors filed their revised report, in which they either overruled or answered all the exceptions that had been presented.</p> <p>This report, after some modification, was confirmed by the Orphans’ Court; whereupon this appeal was taken, as above stated. There were several assignments of error, but the principal points argued in this court were,</p> <p>1. Whether the auditors erred in deciding that an amount was due to B. Chew as a creditor of his father’s estate; and</p> <p>2. Whether, under the terms of the will, the share devised to B. Chew as one of testator’s children, has, by reason of a conditional limitation in the will, and the acts of B. Chew, devolved on the other legatee.</p> <p>The facts required for a proper understanding of these questions are sufficiently stated in the opinion of this court.</p>

<p>ERROR to the Common Pleas of Tioga county.</p> <p>This was an action brought originally before a justice of the peace, by Thomas Evans against Benjamin B. Hall, and came into the Common Pleas by defendant’s appealing from the judgment which was entered against him.</p> <p>The material facts of the case were these: — On the 13th of March 1856, Thomas C. Hoover sold to B. It. Hall, who was at that time a licensed innkeeper, a cask of brandy, said to contain forty gallons, receiving therefor a watch, and a note drawn by defendant for $120, payable one day after date, to Thomas C. Hoover, or bearer. On the 8th of August 1856, Hall paid on account of the note $25. Some dispute arose between the parties about a credit to be given on the note for an alleged deficiency in the quantity of brandy, which was not satisfactorily adjusted by the parties. The note was subsequently transferred to Thomas Evans, by whom suit was brought, as above stated.</p> <p>The defence in the Common Pleas was, that the note was given for a cask of brandy, and was therefore in violation of the Act of September 14th 1855, entitled “An Act to restrain the sale of intoxicating liquor from and after the first of October,” then next ensuing, and that consequently no recovery could be had upon it. The court so instructed the jury, who rendered their verdict for defendant. Judgment having been entered on the verdict, the plaintiff sued out this writ, and assigned the charge of the court for error.</p>

IN the Supreme Court of Pennsylvania. In Equity. These were proceedings founded on three bills in equity, filed in the Supreme Court for the Eastern District, by the complainants above named, for themselves and others who might legally become parties thereto, against the above-named respondents, who were the officers of the Enrolling Board of the Fourth Congressional District of Pennsylvania, under the Act of Congress entitled “ An Act for enrolling and calling out the…

<p>Damages for location and construction of railway. — Tiñe of owner, when to be objected to. — Appeal to Supreme Court under Act of April 27th 1855, when proper.</p> <p>1. In a proceeding, under the Act 19th February 1849, against a railway company to assess the damages caused by the location and construction of their road, an objection as to the quantum of title in the petitioner, or that it was erroneously set forth in the petition, must be made at the time of the application for viewers, or on appeal taken from their report.</p> <p>2. Under the Act of 27th April 1855, the only remedy for errors not appearing upon the face of the proceedings is by appeal.</p> <p>3. Where one petitioned for viewers to assess damages done her, as owner of one-third of certain lands, by a railway company, and as administratrix of her daughter, who had died seised of a one-fifth interest therein, and the court, after viewers appointed and report assessing damages made, on exceptions thereto by the company that the petitioner had not title as set forth in the petition, set aside the proceedings at her costs. On certiora/ri it was held, That as the quantum of title could only appear by evidence dehors the record, and as the ground of the decision below, setting aside the proceedings upon such evidence, could not be legally known to a court of error, the judgment must be reversed and the case reinstated, to be proceeded in according to law.</p>

<p> Power of auditor to decide on claims presented before Mm, on distribution of fund. </p> <p>1. Upon distribution of the estate of an insolvent decedent, before, an auditor, creditors may question each other’s claims, and the auditor may reject such as do not appear to be fair and just.</p> <p>2. Though an administrator is not authorized to demand authentication of the debts of his decedent, when presented after notice given, yet creditors must present their claims, duly authenticated, or defend them before the auditor, if assailed.</p> <p>3. The absence of creditors who were in the army is a reason for an adjournment by the auditor, but not for reversing the decree which confirmed his report: for they might have verified their claims when they were sent to the administrator.</p>

<p>ERROR to the Common Pleas of Perry county.</p> <p>This was an action of assumpsit, brought bj David M. Black against Zimmerman & Co., Samuel Gutshall, and John Shively, on the following instrument signed by the defendants :—</p> <p>“We, the undersigned, guarantee to furnish David M. Black obligations to the amount of six hundred and fifty dollars, for a certain tract of land situate in Madison township, on or before the 1st day of April 1859.”</p> <p>The evidence in the case, which was not controverted, showed that this agreement was signed under the following circumstances :—</p> <p>On the 7th September 1858, David M. Black, the plaintiff, sold a stock of goods to John B. Zimmerman and David Zimmerman, partners trading in the name of Zimmerman & Co., for the consideration of $3200. In part payment, Zimmerman & Co. were to deliver to Black “ obligations on a certain tract of land, situate in Madison township, amounting to $650.” The tract of land mentioned was at that time owned by Zimmerman & Co., who had a parol contract with David Garland to purchase it. Garland was to give bonds for $650, which were the bonds referred to in the agreement between Black and Zimmerman & Co. for the sale of the stock of goods. When Black was about delivering possession of the goods to Zimmerman & Co., they had not obtained Garland’s bonds, and were unable to comply with their contract; for the contract between Zimmerman & Co. and Garland, for the purchase of the land, was not to be executed, and bonds given until the 1st of April following (1859). Black refused to deliver possession of the goods until he obtained the bonds; and in order to get possession, Zimmerman & Co. offered to give Black security for the delivery of the bonds on the 1st of April 1859. The agreement, on which this suit was brought, was then signed by Zimmerman & Co. and Samuel Gutshall and John Shively, as securities, and Black then delivered the goods to Zimmerman & Co. These were the admitted facts of the case, as proved by R. I. Hines and Daniel Garland, witnesses in the case. The contract between Zimmerman & Co. and Garland for the sale and purchase of the land, was never executed: consequently no bonds were given by Garland or tendered by Zimmerman & Co. to Black. It was admitted that the questions of defence, upon the facts recited, were matters of law for the court to decide, and that the verdict of the jury ought to be in accordance with the instructions of the court upon the legal questions submitted by defendant’s counsel.</p> <p>The position taken by the counsel for defendants was that there can be no recovery against the sureties, because there was no consideration mentioned in the written guarantee or promise.</p> <p>The court below (Graham, P. J.) instructed the jury to find for the plaintiff, which was done. Judgment having been entered on the verdict, the defendant sued out this writ, and assigned for error the following portions of the charge of the court below:—</p> <p>1. In instructing the jury, that under our Statute of Frauds of 1855, the consideration of a promise or undertaking to pay the debt of another not appearing on the face of the promise, may be shown by parol; and in saying to the jury, “ Why, then, should we apply the English rule to the construction of our Statute of Frauds, which is not applicable to other cases ?”</p> <p>2. In instructing the jury “ that the same evidence which proved the suretyship, showed the whole truth of the case,” and in effect saying that, while the relation of plaintiffs in error as sureties was being established, the same proof showed a valid consideration for the guaranty, thereby enabling plaintiff below to establish the consideration by parol.</p> <p>3. In saying to the jury, “ Apply these principles to the present case, and it is clear of difficulty, even under the ruling of the courts of England. The guaranty is dated on the 2d October, and agrees to furnish the plaintiff obligation to the amount of $650, for a certain tract of land situate in Madison township. But this is not the only written evidence of the consideration of the guaranty. On the 27th September 1858, five days before the guaranty, ^Zimmerman & Co., by their written agreement, purchased from Black a stock of goods for $3200, and in part payment agreed to give the plaintiff obligations on a certain tract of land situate in Madison township, and bounded by land of George Ilohenschildt, George M. Loy, and others, said obligations amounting to $650.” No man of ordinary intelligence could doubt that the obligations mentioned in the papers of the 27th September and 2d October are the same. * * * * Now, in the absence of all parol evidence on the subject, the plain and' unmistakeable inference from the two papers is, that upon the guaranty of Gutshall and Shively, Black agreed to extend the time for the delivery of the bonds from 2d October to 1st of the following April.”</p>

<p> Common Pleas not warranted in dismissing suit for irregularities. </p> <p>1. Irregularities in obtaining a judgment are not a ground for dismissing the suit, but only for correcting the proceedings upon it.</p> <p>2. Hence, where in a case of foreign attachment in debt, the plaintiff having filed a statement under the Act of 1806, and afterwards a declaration in assumpsit, took judgment for default of appearance, and the court, on suggestion of these and other irregularities, set aside the judgment and dissolved the attachment, it was error.</p> <p>3. The fact that the suit was brought in violation of an agreement to give time, was not a reason for dismissing the action, but should have been regularly pleaded and tried.</p>

<p>Eueor to the Common Pleas of Cumberland county.</p> <p>This was an action of assumpsit by David Long against Al-pheus Sener, Jane Miller, and John Miller, and came into the Common Pleas by appeal on the part of the defendants from the judgment of John Palmer, a justice of the peace.</p> <p>The plaintiff’s claim was founded on a rule, dated April 4th 1859, for the payment of $50, six months after date, to D. H. Long or order, and signed A. J. Sener and Jane Miller, her mark, in the presence of Jacob Eertenbaugh. It was averred that Sener, who was the step-son of Miller, had borrowed $50 of Long, under circumstances which seemed to warrant a proceeding against him for obtaining money under false pretences. That to avoid an arrest, this note was given by Sener. Long demanded security. The 'subscribing witness, called for the plaintiff, testified that “ Mr. Miller was present, and told his wife that she should put her name to it, and he would • see it paid; that he would not put his name to paper any more, but that he would see it paid.”</p> <p>Another witness testified that he was present after this, when Long asked Miller for money, which Miller promised to pay as soon as he could. The magistrate testified that at the hearing before him, Miller acknowledged that he had told his wife to sign the note j that he had sworn never to sign paper for Sener, but that be would have paid the note, if Long had not sued him; that he had told Long that his wife should sign the note, and he would pay it. To a declaration setting forth the above facts, the defendant pleaded non assumpsit, and subsequently added the plea of payment with leave, under these pleas, he proved the issuing of a warrant against Sener, on the information of Long; the arrest of Sener; the execution of the note by Sener and Mrs. Miller; and offered to prove that the note was given for the debt of another, and had been executed under the circumstances above stated; which was objected to as irrelevant, but the objection was overruled and the testimony admitted.</p> <p>The following points were presented by the parties, on which the instruction of the court was requested:—</p> <p>Plaintiff’s points. — 1. If John Miller, the defendant, directed and ordered his wife to sign the note, saying that he had sworn not to sign any more notes for Sener, but that she should sgm it and he would see it paid, the plaintiff is entitled to recover, unless there is some other substantial defence.</p> <p>2. If Sener had obtained money from Long under false pre-tences, and Long made oath before a justice, and had a warrant issued against Sener, and Sener and Miller gave the note in question, for a debt which was honestly due Long, and there is no agreement on the part of Long proved in this case, not to prosecute Sener, the plaintiff may still recover.</p> <p>3. Although Long may have prosecuted the defendant for obtaining money under false pretences, there is nothing in the law to prevent the creditor, Long, from obtaining and taking a note from the defendant for his debt, and a recovery may be had on said note, there being no proof in the case that Long compromised the prosecution and bound himself in any way not to prosecute, although Long and the constable went away without taking Sener along with them.</p> <p>Defendant’s points. — 1. This being for the debt of another, Sener being treated throughout as a principal, there has in this case been no signing by the defendant or any one for him,' as is required under the Statute of Frauds; and therefore the plaintiff cannot recover.</p> <p>2. There is no consideration shown that can make defendant liable in this ease.</p> <p>3. This note having been extorted from Sener, the principal, under a threat of an arrest on a criminal prosecution, or after one actually made as a compromise, plaintiff cannot recover.</p> <p>The court below (G-RAHAM, P. J.) affirmed the plaintiff’s first point, negatived defendant’s first and second points. In answer to the other points, the learned judge said:—</p> <p>“We answer plaintiff’s second point in the affirmative, if you believe there was no agreement on part of Long to discontinue the criminal prosecution. Whether there is evidence tending to prove such an agreement, or from which an agreement to discontinue the criminal prosecution by Mr. Long, may be inferred, we submit to you to determine.</p> <p>“We answer the first part of plaintiff’s third point in the affirmative! There is nothing in the law to prevent a creditor from talcing a note from his debtor, after he has commenced a criminal prosecution against him. But we cannot say to you that there is no evidence that Long agreed, in consideration of the note in suit, to discontinue the prosecution he had instituted ; on the contrary, we think the evidence tends strongly to show that the consideration of the note was the discontinuance of the prosecution instituted by Long.</p> <p>“ Constable Pertenbaugh says Mr. Long gave him the warrant against Sener, and went with him to Sener’s house; that he went there and took Sener, and then this note was given. After we had the note and their names to it, we left Sener there, and Long and the witness came home together.</p> <p>“ Esquire Palmer also testifies that Long told him that Miller had signed the note, and he was satisfied, and that was the end of it. And in addition to this we have the fact that this note was given 4th April 1859, more than three years and six months since, and the criminal prosecution has not been heard of since.</p> <p>“ If the evidence satisfies you that Long agreed to discontinue the prosecution, in consideration of the note of Miller with secu-curity, then the plaintiff cannot recover, and your verdict should be for the defendant; otherwise find for the plaintiff.</p> <p>“ As to defendant’s third point. If the note was given under the circumstances stated in this point, then the plaintiff cannot recover. Whether it was thus given, we submit to you to determine.”</p> <p>Under these instructions, there was a verdict and judgment for the plaintiff; whereupon the defendant, John Miller, sued out this writ, and assigned for error the affirming of plaintiff’s first point, the negative answer given to defendant’s first and second points, and in leaving to the jury to say whether the note was or was not given under the circumstances mentioned in defendant’s third point, there being no evidence to the contrary.</p>

<p>Exemption Law. — Proviso as in favour of purchase-money, not applicable against lien-creditors. — Effect of waiver by debtor.</p> <p>1. The proviso of the Exemption Act of 9th April 1849, that it shall not affect liens for the purchase-money of real estate, applies against the claims of insolvent debtors only, and not against their judgment-creditors.</p> <p>2. Where the proceeds of a debtor’s real estate were claimed on distribution by judgment-creditors whose liens were entered on the same day, by the holder of a subsequent judgment for purchase-money, and by the defendant for his exemption, who had withdrawn his claim, it was Held, That there being no claim for exemption at the time of distribution and the record determining the priority of liens, the prior judgment-creditors were entitled to the fund, to be divided pro rata between them.</p> <p>3. The claim for exemption being a personal privilege, the defendant has the right to withdraw it, though the result be to prefer his prior judgment-creditors over the holder of the judgment for purchase-money.</p>

<p>Appeal from the Orphans’ Court of Lancaster county.</p> <p>This was an appeal by Charlotte Nottes, widow of Frederick Trost, deceased, from the decree of the court confirming the report of the auditor on the account of Frederick S. Albright, administrator of said deceased.</p> <p>The material facts of the case were these :—</p> <p>Frederick S. Trost purchased from the executors of Philip Pyle, deceased, certain real estate. When the purchase-money was to be paid, and the deed made, the parties interested met together at the scrivener’s office. Mr. Hoover, the obligee in the judgment-bond under wbicb he claimed, for the purpose of meeting the engagement of Mr. Trost, advanced the largest portion of the purchase-money to one of the vendors, and Mr. Trost executed the judgment-bond, which was entered in court, and became alien upon the estate of the deceased. In that bond there was a clause which declared that it was given for the balance of the purchase-money for the house, being the real estate mentioned. After the death of Trost the property was sold by his administrator in pursuance of an order of the Orphans’ Court, and the amount of the judgment referred to was claimed out of the proceeds. This was resisted by Mrs. Nottes, the former widow of Trost, as being-prejudicial to her claim of $300, under the Exemption Law of 14th April 1851, § 5, P. L. 613, the funds in the hands of the administrator not being sufficient to pay both in full. The representatives of Hoover claimed under the proviso of that law, which provides that it shall not affect or impair any liens for the purchase-money of real estate.</p> <p>The auditor rejected the widow’s claim, and distributed the balance to Mr. Hoover: which distribution being confirmed by the court below, this appeal was taken as above stated.</p>

<p>Appeal from tbe Orphans’ Court of York county.</p> <p>This was an appeal by Samuel Silknitter and others, the children and grandchildren of Henry Silknitter, deceased, from the decree of the Orphans’ Court, in the matter of the distribution of the estate of deceased, under his will.</p> <p>Henry Silknitter died, having made a will in which he provided for the sale of his real and personal estate, and for the distribution of the proceeds among his children, “ or their heirs or assigns.” At the time of his death he was seised of two separate and distinct tracts of land. He gave to his widow one of these tracts of land for her own use during her widowhood, together with certain personal property, and after said time this part of his real and personal property to be sold by his executors, and “the proceeds thereof” he directed “to be divided amongst all my ten children, or their heirs or assigns in equal shares and share alike.”</p> <p>After providing for the sale of the residue of his real and personal estate for the payment of his debts, &c., and after giving certain legacies, he provided as follows: “ Further, it is my will that the balance or residue of my estate shall be divided equally amongst all my ten children, or their heirs or assigns, except my daughter Barbara, who was intermarried to Christian Snyder, she now a widow, she to have only the interest of one share during her life.”</p> <p>It was contended, under this clause of the will, that the share given to Barbara was only a life estate, and did not vest in her absolutely. And this was the matter in controversy before the auditor, who was appointed to distribute the fund.</p> <p>On hearing the case, the auditor (George Fisher, Esq.) decided that Barbara was entitled to an absolute interest in the whole sum.</p> <p>Exceptions were filed to this report, but the Orphans’ Court (FisheR, P. J.) dismissed the exceptions, confirmed the report, and directed that the fund in court, viz., $1411.30, being the one-tenth of the balance of the real and personal estate of deceased, should be paid to Solomon High, the administrator of Barbara Silknitter, deceased, which was the error assigned.</p>

<p>Parol sale of land, when void by the Statute of Frauds.</p> <p>A parol agreement by one person to purchase land and convey it to another whenever advances are repaid, is void by the Statute of Frauds: and an entry by the latter upon the land before it was purchased by the former, would not be such possession under and in part execution of the contract, as would take it out of the statute.</p>

<p>Costs in criminal cases.— The word “ conviction ” in statutes, construed.</p> <p>1. Under the Act of Assembly of 2d March 1814, and 31st March I860, providing that in all cases of conviction, the costs shall be paid by the party convicted, but where the party shall have been discharged according to law, without payment of costs, they shall be paid by the county, the term “ conviction” applies to the verdict of the jury finding the defendant guilty, and means conviction before sentence and judgment.</p> <p>2. Hence, where a defendant, having been convicted of fornication and bastardy, before sentence pleaded pardon, and judgment was entered that he should “ go without day in court,” he was discharged from the payment of the costs, and the county was liable therefor.</p>

<p>Trial of joint trespass on a joint plea by defendants, effect of. — Estoppel in pais. — Landlord’s title to share of grain raised, vests only on delivery.</p> <p>1. If one, defendant in an action of trespass against three, plead jointly to issue with them, and the action he tried as a joint trespass, he cannot, after verdict, complain that the evidence did not implicate him, where he asked no instruction to that effect from the court upon the trial.</p> <p>2. Where an action was brought against the defendants by two sons for selling their grain in the ground as the property of their father, whose tenants they were, on executions against him, it was held, that declarations by one of them as to the tenancy, not made to any of the defendants, would not estop him from recovery, there being no proof that they acted upon the faith of what he said or were misled by it.</p> <p>3. Where, by the terms of the lease, the father was to receive his share of the grain, to be delivered in the bushel, at the mill, held, he had no title until delivery: and that therefore the sons were entitled to recover the full value of the grain taken and sold.</p>

<p>Appeal from the Orphans’ Court of Lancaster county.</p> <p>This was an appeal by Mary K. Groff, Daniel M. Thomas, Isaac Rutter, and Joseph Rutter, from the decree of the Orphans’ Court, on the distribution of the balance in the hands of Christian Eby, executor of Isaac Eby.</p> <p>The case was this: — Isaac Eby, by his will dated November 26th 1847, proved 5th April 1850, appointed two executors, Christian Eby and William P. Caldwell, and the latter having renounced, letters testamentary were granted to the former. By this will a large and valuable farm was devised to Christian Eby, and he was directed to pay in for testator’s creditors, one year after testator’s decease, $1000. Another plantation was devised to Isaac Eby, and he was ordered to pay $600 to the executor for the use of the creditors of said deceased, also year after death of testator. The testator died March 18th 1850. On the 24th March 1851, the executor filed an account charging himself with $4600.31, and asking credits for $4575.03-|-, including claims of accountant on bond for $1149, boarding, &c., $825, and commissions $221, in all $2195, leaving a balance of $25.27J in favour of the estate. At the time of filing this account, one of the appellants, Mrs. Groff, was a minor, and was represented by her guardian, the said Christian Eby.</p> <p>On the 12th October 1857, a petition for a citation, at instance of the present appellants, was presented, requiring said Christian Eby to file a supplementary account for moneys not accounted for previously, and particularly the $1600 before mentioned, with interest; and on the 22d of June 1858, a citation was awarded. He complied with this order by exhibiting a statement of the $25 balance of the first account, and $6.50 credited against it November 9th 1858. . Exceptions were filed to this return, and April 12th 1859, he was again directed to exhibit an account, the court, in their opinion, saying:—</p> <p>“ This court has already decided that the executor or administrator de bonis non was bound to account; of course it was intended that he was bound to bring said sums which by the will were directed in one year from the testator’s decease, to be paid to the executor into the account of his administration.”</p> <p>From this decree an appeal was taken to the Supreme Court to May Term 1859, but was quashed for irregularity. Subsequently such proceedings were had in the Orphans’ Court of Lancaster county, that June 11th 1860, the clerk was ordered to reform the account which Christian Eby had filed on the 9th November 1858, and by paper filed of record June 23d 1860, the balance in favour of estate of Isaac Eby, deceased, was ascertained to be $2379.08.</p> <p>On the day last mentioned, a rule on said executor was granted to show cause why he should not pay these appellants their respective shares of the said sum of $2379.08, due according to his account reformed as aforesaid.</p> <p>The opinion of the court below (Hays, J.) was as follows:—</p> <p>“The counsel on both sides appeared to think that‘the court were compromitted by decreeing on the last citation against the defendant, that he should bring the sums charged on the land devised to him, and the land devised to his brother Isaac, and to be paid within one year after testator’s decease, into the account of his administration. But the question to whom these sums belonged, was expressly and purposely left open by this court; and so the Supreme Court understood the proceeding, and therefore remanded the case. Had the argument been as fully presented at that time as it was on the hearing of this rule, the court might then have decided that question; but looking at the specific directions of the will and the first account — the will requiring that tbe sums charged upon the plantations given to Isaac Eby and Christian Eby respectively, should be paid to his executors in one year after testator’s deeease, and the court seeing that these sums had not been brought into Christian Eby’s first account — they thought it proper that they should be brought into the supplementary account in order to complete the execution of the will with which, as executor, he was charged. When that should be done, the question, as the court said, might be raised, ‘ To whom do those sums belong ?’</p> <p>“ That is the question now; and it depends upon the will of Isaac Eby, deceased. If it was the intention of the testator that Christian Eby and Isaac Eby, his sons, should absolutely pay the sums charged upon the plantations devised to them, then those sums which constitute the balance of the administration account, as reformed, will be distributable among the legatees of the testator in equal shares. The intention is to be collected from the whole will, if he entertained it at all.</p> <p>“ On the part of the accountant, it is contended that the primary intention of the testator was to provide for the payment of his debts, and that this design is to be regarded as the guiding light in the interpretation of his will. If the order in which the clauses stand were material in fixing the meaning, the item for the payment of debts might be deemed of primary consequence, as standing first among its provisions, but we cannot perceive that such was* his chief solicitude. Why should it have been, when his estate was so large, and his debts were comparatively inconsiderable ? The ruling idea in framing his last will and testament, was probably to give to each child and grandchild, just as much of his estate as he thought each ought to have, lie had three plantations, and other real estate consisting of several tracts of land and a mill, besides some personal property. These plantations he devises in fee ; one to his grandson Jacob Eby, another to his son Christian Eby, and the third to his son Isaac Eby. Each of these devisees is charged with considerable sums, to be paid by him. He gives to his grandson Jacob the plantation in Leacock township, containing one hundred and sixty-nine acres, he paying to the widow, his mother, $26 annually, besides granting her certain privileges and advantages set forth. He-was also to pay $800 to his brother, $500 to each of his two sisters, and the further sum of $200 to his brother Isaac Eby’s children. So he bequeaths to John Eby all his land in Earl township, adjoining lands, &c., by his paying out the following sums of money, viz., to Isaac and Joseph Rutter each $100. The provisions in relation to Isaac and Christian, his sons, are as follows, viz.:—</p> <p>“ ‘ Item. I give and devise unto my son Isaac all that certain plantation, with the appurtenances thereto belonging, situate in West Cain township, Chester county, on which the said Isaac now resides, to him, his heirs and assigns for ever, he the said Isaac paying the sum of six hundred dollars to my executors, for the use of my creditors, in one year after my decease.’</p> <p>“ ‘ Item. I give and devise to my son Christian Eby, the plantation with the appurtenances thereunto belonging (on which I now reside), containing about one hundred and sixty-two acres, to him, his heirs and assigns for ever. The said Christian to pay one thousand dollars, in one year after my decease, for the use of my creditors.’</p> <p>“The succeeding paragraph is as follows, viz.: ‘I give and bequeath to Mary Bucher twenty-five dollars, to be paid to her one year after my decease by my executors, and as touching all the rest and residue of my real estate, consisting of a grist-mill and saw-mill, and tract of woodland, I do order and direct that my executors hereinafter named, shall in one or two years after my decease, sell and dispose of, either at private or public sale, for such price or prices as may be reasonably gotten for the same.’ The executors are next empowered to execute and acknowledge the necessary conveyances to the purchasers: ‘ And the moneys arising from such sale or sales to be applied to the payment of my just debts and legacies hereinbefore mentioned. And provided the sums of money arising from the sales aforesaid, will not amount to the payment of my debts as aforesaid, then it is my will that the balance shall be paid by my legatees aforesaid (Christiana excepted), in equal proportion to their several gifts and devises; and if it should so happen that the sales should amount to more than pay the debts aforesaid, then the balance shall be equally divided amongst all my legatees aforesaid.’ Afterwards the will proceeds: ‘and as touching my personal estate, it is my will that it be sold, and I order my executor to sell it in one year after my decease, and the amount applied to the payment of my debts aforesaid.’ ‘ And whereas, Susanna Hart holds a legacy in the premises, devised to my grandson Jacob, to the amount of one hundred and sixty pounds, during her life, it is my will, and I order that all my legatees (Christiana only excepted) pay an equal proportion according to their several bequests ro shares, of the interest annually of the said legacy, and likewise the principal in the same proportion, at her death, or as soon as the same may be paid.’</p> <p>“ The mill and woodland directed to be sold ‘ in one or two years after’ the testator’s decease were sold, it is said, whilst he was living, and the proceeds, or a part of them, were included in the inventory of his personal estate. The testator lived two years after the date of this will. Among the debts paid by Christian Eby, as executor, out of the sums that came into his hands, and were accounted for by him, are to Jacob Eby, the amount of debt and interest on a bond due to bim from tbe estate of tbe deceased, $2100, and to Christian Eby, tbe amount of debt .and interest on a bond due to bim by Isaac Eby, deceased, $1149; also boarding, washing, mending, and attendance on and for deceased, for six years prior to his death, at $137.50 per year, $825. The amount of debts which tbe executor paid to himself, as due him from the testator, is $1974, besides $2100 paid to Jacob Eby.</p> <p>“ Whether it was the chief solicitude of the testator that his debts should be paid or not, he has carefully provided by his will for their discharge, as we have seen. Besides these sums charged on Christian Eby and Isaac Eby’s plantations, for the use of his creditors, and the personal property which he directs to be sold and the amount to be applied to the payment of his debts, he orders and directs the rest of his real estates to be sold, and the moneys arising from such sale or sales to be applied to the payment of his just debts and legacies thereinbefore mentioned. That portion of his real estate, thus set apart as a fund for the special purpose mentioned, was sold by him in his lifetime, before his last will and testament took effect, and the proceeds of course were converted into personal estate, and were personalty at the time of his decease. As such they were applicable not only by his directions, but by force of law, to the payment of his debts; they were personal assets in the hands of his executors, so that when Christian Eby received his letters testamentary, and was charged with the execution of this will, he was entitled to receive, and did receive, $4600.13 of personal assets, applicable to the payment of the debts of his testator. These were more than sufficient to pay all those debts, and were applied to their discharge, leaving a balance in his hands of $25.</p> <p>“ The sums charged on Isaac Eby’s and Christian Eby’s lands, devised to them, were directed to he paid expressly “for the use of creditors.” But after the application of the personal assets, by the executor, in conformity to the directions of the will, to the payment of the testator’s debts, there were no creditors, no one to be paid — no use to which the sums thus charged could be applied. Christian Eby, as executor, could not demand from Isaac Eby the six hundred dollars charged on his plantation for the use of the testator’s creditors, when there were no such creditors — and for the same reason he was not. obliged to raise the sum charged on his own plantation. Even if he had not so applied the personal assets in his hands, and had called on Isaac Eby to pay the six hundred dollars charged on the plantation devised to him, — the creditors still unpaid, could he legally and equitably have demanded and enforced payment of that sum ? The rule seems to be established that the personal estate is first liable to be applied to the payment of debts, not only in intestate estates, but even in estates devised for that purpose, where the devisor or testator leaves personal property, unless the latter is specially or clearly excepted. ‘ Does there appear (said Lord Eldon) from the whole testamentary disposition taken together an intention on the part of the testator so expressed as to convince a judicial mind that it was meant not merely to charge the real estate, but so to charge it as to exempt the personal ?’ &c. In the case of Walker’s Estate, 8 Rawle 229, Judge Rogers said, ‘ The personal fund is the first in order for the payment of debts, whether mentioned in the will or not, and this is not doubted as between the devisee of the real estate and the legatee, and how it can make any difference as regards the heirs of the descended lands I am at a loss to discover.’ P. 241. What Christian Eby could not require to be paid by Isaac Eby on account of the charge on the land devised to him, for the use in the said devise mentioned, he would not be obliged himself to pay on account of the charge on the plantation devised to himself for the same use.</p> <p>“The conclusion would then appear to follow, legally, that the personal fund provided by the testator being amply sufficient to satisfy all his debts, and not only being properly by law liable to those d.ebts, but actually applied by the executor to discharge the same, there was nothing for the sums charged to be applied to, and the devises were discharged therefrom — so much so, in effect, as if they had been paid by the devisees and applied to the debts of the testator, as he expressed it, ‘for the use of his creditors.’</p> <p>“ To corroborate this conclusion, the fact is to be considered that there are no residuary legatees in this will, and that to hold these sums charged on the plantations devised to Isaac Eby and Christian Eby to be payable by them for distribution among the heirs of the testator, would be to determine without necessity or reason, that the testator died intestate in regard to these sums of six hundred and one thousand dollars. But such a position, in a case in which it clearly appears that the testator intended, and did in truth dispose of his whole estate — making no provision for any contemplated residuum — would be untenable. Nor does it affect this view of the will that he directs, in the case of the application of the proceeds of the sale of his mill and woodland, that any surplus beyond what might be necessary to pay his debts should be equally divided among his legatees; first, because this provision of the will relates specifically to the fund to be raised by the mill and woodland, which the testator directs his executors to sell in one or two years after his decease; and, secondly, because the provision was rendered null and ineffectual by the testator’s sale of this property in his lifetime.</p> <p>“ There is also a distinction fully recognised which bears upon this argument, and supports the conclusion — “ a distinction between a devise of an estate in trust to pay debts and other charges, and a devise of an estate charged with, or subject to debts or other charges. In the former case, the devise is construed to be a mere trust to pay the debts or other charges, giving no beneficial interest to the devisee, but holding him, after the debts or charges are paid, a mere trustee for the heir as to the residue. In the latter case, the devise is construed to convey the whole beneficial interest to the devisee, subject only to the payment of the debts or other charges. The distinction may seem nice, but it is clearly established as a matter of intention : 2 Story’s Eq. Jur. § 1245. Lord Eldon, in King v. Deni-son, 1 Vesey & Beames 272, states and illustrates the distinction thus: ‘ If I give A. and his heirs all my real estate, charged with my debts, that is a devise to him for a particular purpose, but not for that purpose only. If the devise is upon trust to pay my debts, that is a devise for a particular purpose, and nothing more; and the effect of those two modes admits just this difference. The former is a devise of an estate of inheritance, for the purpose of giving the devisee the beneficial interest, subject to a particular purpose; the latter is a devise for a particular purpose, with no intention to give him any beneficial interest. Where, therefore, the whole legal interest is given for the purpose of satisfying trusts expressed, and those trusts do not in their execution exhaust the whole, so much of the beneficial interest as is not exhausted belongs to the heir. But where the whole interest is given for a particular purpose, with an intention to give to the devisee of the legal estate the beneficial interest, if the whole is not exhausted by that 'particular purpose, the surplus goes to the devisee, as it is intended to be given to him.’</p> <p>“ Considering then that the sums charged on the plantations devised to Isaac Eby and Christian Eby belong to them respectively, as the creditors for whose use they were charged, have been satisfied out of the personal estate of the testator, which was not only appropriated by him for that purpose, but was liable in the first place, we are of opinion that the rule in this case be discharged.”</p> <p>This appeal was then taken, and the following error assigned: —The court erred in discharging the rule to show cause why the respective shares of Mary K. Groff and others in the $2379.08, the balance of Isaac Eby’s estate in hands of his executor, should not be paid, the same should have been made absolute, and moneys awarded them.</p>

This was an action of assumpsit, brought April 3d 1862, by Jacob Craver against The Stoystown and Greensburg Turnpike Company. The plaintiff declared on a contract with defendant for building a bridge across the Loyalhanna, in Westmoreland county, on the Harrisburg plan, for $870, but made an additional claim for extra work, averring that he had been deceived as to the length of the bridge.

<p>Appeal from the Common Pleas of Bedford county.</p> <p>This was a proceeding founded on the petition of E. L. Anderson, praying for a mandamus against the School Directors of the Borough of Bedford, commanding them to exonerate and discharge him from the payment of the school-tax assessed upon moneys at interest secured by a mortgage on the real estate of the Bedford Mineral Spring Company.</p> <p>The petitioner set forth that he is charged by the school directors of Bedford borough, with taxes for school purposes, to the amount of $430.02, assessed upon moneys at interest, secured by a mortgage on the real estate of the Bedford Mineral Springs Company, and that said taxes are unjust and oppressive, for the reasons following: First, because petitioner is the owner of more than one-half of the capital stock of the company, owning the real estate covered by the mortgage, which real estate is also taxed for school purposes. Second, because the company is insolvent, and unable to pay the interest on the mortgage, and has been so for more than one year, and before the taxes were assessed.</p> <p>That application was made to the school directors for exoneration from the payment of this tax, which application was wrongfully and unjustly refused; and praying for a mandamus for the purpose above stated.</p> <p>The respondents waived the service of the writ, and filed their answers, in which they averred: “That the interest falling dne on the mortgage is a proper subject of taxation. That the fact of its not being paid regularly is no reason why the tax should be exonerated. The mortgage is for $100,000. The property on which it is secured was sold by Mr. Anderson to the company for $170,000. The company made improvements afterwards to the extent of $50,000. The tax was levied and paid prior years without objection. The interest upon the mortgage is receipted for, on the record, for the time including 1860. Mr. Anderson obtained judgment for the interest due 1st April 1861, issued execution, and sold a large amount of personal property to pay it. The tax complained of was included in duplicate of 1861. The collector’s warrant has expired, and he is responsible on his bond. The teachers for the schools were employed, the schools opened, and other expenses incurred — the debts contracted must be paid for — they were made on the faith of this tax, in part; there can be no good reason for taking the debt off Mr. Anderson and putting it upon the other tax-payers of the borough. The directors can authorize an abatement or exoneration only upon three contingencies,- to wit, for mistakes, indigent persons, or unseated lands. This tax was laid 3d May 1861; up to that day Mr. Anderson had received every cent of interest due on his mortgage. Upon the judgment confessed for the interest falling due 1st April 1861, Mr. Anderson bought in nearly the whole of the personal property at a sacrifice of two-thirds, certainly one-half of its value.”</p> <p>At the first hearing of the case the rule for a mandamus was dismissed, but this decision was subsequently rescinded, and an auditor appointed to hear the case and report the facts to the court. On filing the auditor’s report, the court below made the following decree, which was the error assigned on this appéal: — -</p> <p>“The facts found by John Mower, Esq., the examiner appointed in this case, show that on the mortgage for $100,000, which E. L. Anderson, Esq., holds against the Bedford Mineral Springs Company, no interest was paid for the year 1861, because of the insolvency of said company. This being the case, Anderson should not have been assessed with school tax on said mortgage for 1861. Therefore the rule issued is made absolute, and it is ordered and decreed by the court that a writ of mandamus shall be issued against the school directors of said borough of Bedford, commanding them to exonerate and discharge said Anderson from the payment of said school tax for the year 1861.”</p>

<p> Right of party to alter or dispense with written contract by notice not to perform it. </p> <p>Under a lease providing for a purchase, at its termination, by the lessee, at his option, and for the erection of a bark-shed, which, in case he did not purchase, the lessor was to pay for, held, that the lessee had the right to build the shed, though notified by the lessor not to do so, and that it would not be paid for: and that in an action for the rent, the lessty\ was entitled to set off its appraised cost and value.</p>

■CektioRARI to Bedford county. Lycurgus P. Gurley was indicted at the February Sessions of 1863, for fornication and bastardy with Drucella C. Clark. The testimony of the prosecutrix established the fact that the child, though begotten in Cumberland Valley township, Bedford county, Pennsylvania, was born in Allegheny county, Maryland.

<p>Appeal from the Orphans’ Court of Somerset county.</p> <p>This was an appeal by the widow and heirs of Daniel Yoder, deceased, from the decree of the court below on the account of Gillian C. Lint, trustee for the sale of the real estate of deceased.</p> <p>The case was this: — Daniel Yoder died intestate in 1844, leaving a widow, Susanna, and six minor children. Letters of administration on the estate of said deceased were granted to Isaac Yoder, who filed his final account on said estate on the 23d day of April 1850, which was confirmed on the 29th of August, same year, showing a balance in his hands of $369.60. On the 1st day of October 1849, the Orphans’ Court of Somerset county, on petition of Susanna Yoder, widow of deceased, appointed Gillian C. Lint guardian of said minor children, and on the same day, on petition of Gillian C. Lint, awarded an inquest to make partition or valuation of the real estate of which the said Daniel Yoder died seised, to wit, a tract of land containing one hundred and thirty-eight acres, more or less. On the 11th day of February 1850, the petition of G. C. Lint, guardian, and the widow, was presented to the court, representing that an inquisition was held on the real estate of Daniel Yoder, deceased, by the sheriff, and that a return thereof had been made to the court, which was confirmed; and that it was deemed best for all parties interested to have the land sold, and therefore waived the service of further notice, and prayed the court to decree a sale of the said real estate on the following terms, to wit: one-third to remain on the land during the widow’s lifetime, she to receive the interest thereof semi-annually during her lifetime ; at her death the principal to be paid to the legal heirs of Daniel Yoder, deceased, the remainder to be paid one-third in hand and the balance in two equal annual payments, to be secured by judgment-bonds and mortgage.” On this petition the court decreed a sale of the real estate aforesaid, and granted an order of sale to G. 0. Lint, to which, on the 22d of April 1850, he made return to the court that, in pursuance of said order, he had sold the same on the terms specified for the sum of $20 per acre, which sale the court confirmed the same 'day.</p> <p>On the 11th of March 1857, the account of Gillian C. Lint, trustee as aforesaid, was filed, charging himself with the sum of $2760, the amount realized by the sale of the real estate, to wit, one hundred and thirty-eight acres, at $20 per acre; also with $250 interest on the same, making the amount of his charges $3010, which account as filed was confirmed on the 20th day of May following.</p> <p>On the 1st day of November 1860, having been cited, he filed his account as guardian of said wards, exhibiting a balance in his hands of $1606.59, to which account the heirs by their attorneys excepted. On the 4th of December 1860, the court appointed an auditor to examine and report on exceptions filed, state an account, find disputed facts, and return the evidence. This commission was continued by the court on the 7th of February 1861, and again on the 26th February 1861 continued over to 12th March 1861. On the 4th day of February 1861, the petition of Gillian 0. Lint was presented to the court, representing that he had sold the real estate on different terms from those in the order of the court, and that in his trustee account, he is charged with an amount greater than he realized from said sale, and asking the court to take off the confirmation of said account and grant a bill of review on the same. Same day, rule awarded on all parties interested to show cause why the prayer of petitioner should not be granted. Service of this rule was waived by the attorneys of heirs, and on the 13th of March 1861, on motion of the attorney of G. C. Lint, the court appointed “ Lewis Lichty auditor to find disputed facts and return the evidence.” On this proceeding a commission issued to “ Lewis Lichty, Esq., auditor, to take the evidence, find the facts, state an account, and return the evidence.” Under this commission the auditor filed his report on the 3d day of February 1862, in which report he sustained the 1st, 2d, 3d, 6th, 7th, and 10th exceptions, which had been filed to the account of Gillian C. Lint, as guardian. The 8th and 9th exceptions were withdrawn. The 4th and 5th were not sustained. The auditor amended the return of the-trustee’s sale, to correspond with the terms of sale, as prayed for by the trustee, stated an account for the guardian, in which he did not charge him with the amount he had admitted to be in his hands by his account as trustee, filed 11th March 1857. He did not charge the guardian with interest after the date of filing his account, and charged the expenses of the audit to the heirs. To this report exceptions were filed by the attorneys for the heirs on the same day, as follows:—</p> <p>1st. That the auditor erred in reviewing and changing the trustee account on the estate of Daniel Yoder, deceased.</p> <p>2d. In revising and amending the return of sale of said trustee.</p> <p>3d. In not charging interest against the guardian on all moneys that were or should have been in his hands, according to the terms of sale of the real estate of Daniel Yoder, deceased; the account of I. Yoder, administrator of said decedent; and according to the account he filed as trustee for the sale of the real estate of said decedent, up to the time the report was made out and filed, to wit, 3d February 1862.</p> <p>4th. In charging the expenses of the audit to the heirs of the estate.</p> <p>The court below (Nill, P. J.) overruled the exceptions, and confirmed the report of the auditor ; which was the error assigned on appeal by the widow and heirs.</p>

<p>Construction of will. — Remainders, vested and contingent. — Ride of descent enforced unless clearly altered by will. — Presumption in favour of general rule.</p> <p>A testator by will bequeathed the interest of the residue of his estate after sale and payment of debts for the use of his widow for life, with power to draw upon the principal fund, if necessary for her support; with remainder to his granddaughter, and afterwards directed that if she should die under age and without issue, or after arriving at lawful age should die intestate and without issue, then the estate given and bequeathed to her should descend to his heirs under the intestate laws: Held, that the interest of the granddaughter vested at the death of the testator: and that after her death, her administrator was, at the death of the widow, who survived her, entitled to the unexpended portion of the bequest.</p>

This was an action on the case for defamation, brought May 31st 1860, by William B. Smith and Lydia B. Smith, his wife, against Veronica Smith. The slanderous words were alleged to have been spoken in November 1859. July 21st 1860, William Smith filed a paper, in which he directed the case to be discontinued, averring that it had been instituted without his knowledge and consent.

This writ issued at the instance of John Barkstresser, through whose land a private road was laid out on the application of Jacob Weaver. The facts of the case are fully set forth in the opinion of this court.

<p>ERROR to the Common Pleas of Lancaster county.</p> <p>On the 26th of June 1860, three attachments in execution were issued against John W. Gross, defendant, and John H. Gross, garnishee, on three judgments; two of them obtained by Jacob Reddig, and one by the Inland Insurance Company, which was assigned to Jay Oadwell. The three cases were tried together by consent, and verdicts and judgments taken in all of them for the respective plaintiffs pro rata. To one of these judgments this writ of error was taken.</p> <p>It appeared on the trial, that on the 10th of March 1857, John W. Gross, the defendant, being then indebted to the plaintiffs to the amount of about $6000, and confessedly insolvent, was the owner of a store of dry goods, which he on that day sold to his son, John H. Gross, the garnishee, for the consideration of $5000; in payment of which he took two bonds, one conditioned for the payment of $2000 to himself, and the other for the payment of $3000 to Sarah Gross, his wife. The bond to John W. Gross appeared to have been paid; that to Sarah Gross remained due; and the plaintiffs in the attachments claimed to recover the amount of the bond, to be divided between them in proportion to the amount of their claims against him.</p> <p>The defence set up was tbat John W. Gross had, after his marriage, some twenty years ago, received money from different sources in right of his wife, amounting in the whole to about $8000; and it was alleged that at the time when he received it, he declared that he took it as a loan, and held it in trust for his wife; and it was contended that she was therefore a bond fide creditor, whom he had a right to prefer by taking the bond in question in her name, for her use.</p> <p>The question at issue was therefore a controversy between the wife of John W. Gross and his attaching creditors; it being alleged on the one side that the money confessedly due by her son was hers, and on the other that it was liable to attachment for the father’s debts.</p> <p>It appeared that Mrs. Gross’s share in her father’s estate amounted to about $3000, nearly the whole of which was in the hands of her guardian, Martin Swarr, and by him paid over to John W. Gross, after the marriage. There was no evidence that at the time of receiving this money, or at any time before or after, Gross made any declaration in regard to it, or gave any information that he received it in trust for his wife, or in any other way than by virtue of his marital right.</p> <p>In 1844, John W. Gross purchased a plantation, and took the conveyance in his own name, and paid for it in part with the money he received in right of his wife.</p> <p>On the trial, the garnishee offered John W. Gross as a witness to prove that when he received the share of his wife in her father’s estate, he did not convert it to his own use; that he told her guardian, from whom he received it, that he took it as her own estate, and would hold it for her, and when she wished, would pay it over to her or give her satisfaction for it, which he repeated at different times to her and others; and that he had directed his son John to deliver to her the bond for $3000, to secure the said share of his father’s estate. But the court below overruled the offer.</p> <p>Under the instruction of the court (Hayes, P. J.), there was a verdict and judgment in favour of the plaintiff; whereupon this writ was sued out by the garnishee, for whom the rejection of the offer above mentioned, and the instruction of the court below, were assigned for error.</p>

<p>ERROR to the Common Pleas of Dauphin county.</p> <p>This was an action of debt, by the Commonwealth against George W. Toms, George Wiles, and Daniel Logan, on the official bond of George W. Toms, as register of Franklin county, in which the following ease was stated for the opinion of the court:—</p> <p>It is admitted that George W. Toms was the register of Franklin county from the 1st of December 1857, to the 1st of December 1860. That he filed an official bond, as required by the Act of 1832 (which is made part of this case stated), and that Daniel Logan and George Wiles are his sureties. It is further admitted that George W. Toms never filed a collateral inheritance tax-bond, as required by the Act of the 22d of March 1841. It is also admitted that at the date of the last settlement of said Toms with the Commonwealth, there was a balance due the Commonwealth of $1033.06, of which amount $944.41 is due on collateral inheritance tax, and $88.65 due on writs.</p> <p>If the court shall be of opinion that the sureties in the bond filed are not liable for the defalcation of their principal as to collateral inheritance tax, then judgment to be entered for the Commonwealth for $88.65, the amount admitted to be due on writs; if otherwise, that the bond does cover the collateral inheritance tax, then judgment for $1033.06, with interest on either sum from April 9th 1861.</p> <p>The court below (PeáRSON, J.) gave judgment for the plaintiff for $88,65, with interest, being the amount due on writs only, which was the error assigned by the counsel for the commonwealth.</p>

<p>ERROR to the Common Pleas of Lancaster county.</p> <p>This was an action of trespass on the case brought by the late firm of Robert Patterson & Company, of Philadelphia, against Gideon Arnold and others, doing business in Lancaster, under the name of “The Conestoga Steam-Mills,” to recover the amount of several promissory notes given by the defendants, for cotton sold and delivered to defendants. T.he case was this:—</p> <p>On the 14th of July 1845, a number of gentlemen associated themselves together for the purpose of building a factory or factories, and embarking in the manufacture of cotton goods, in the city of Lancaster. They erected and equipped one mill, and commenced business therein. Soon afterwards they purchased another mill, on a lot adjoining theirs; and finally erected a third mill in the neighbourhood of the other two. These mills were known as Nos. 1, 2, and 3, in the order of their acquisition.</p> <p>The parties composing this association commenced and prosecuted their enterprise under the firm name of “ The Conestoga Steam-Mills Company,” until the month of December 1849, when they resolved to become a corporation under the provisions of the General Manufacturing Law, passed on the 7th of April previous.</p> <p>Pursuant to this resolve, and in compliance with the statute, five of their number subscribed a certificate expressing the intention to manufacture cotton goods at Lancaster, &c., &c., and setting forth that they had subscribed for that purpose two thousand shares each to a capital of $500,000, of which $351,525 had been actually paid in to David Longenecker, who was appointed to receive the same. This certificate was regularly acknowledged, recorded, and filed, according to law. The essential statements therein contained of the subscription and payment of the capital were erroneous. So far as the capital had been subscribed, it was then held by the partners in the original company in proportion to their respective interests; and so far as it was paid in, it had been expended during the four and a half preceding years in the purchases, improvements, and business of the partnership.</p> <p>■ Certificates of stock in the corporation were issued to the partners in the original firm, and business was thenceforward transacted as by a body corporate legitimately organized.</p> <p>In this form the association prosecuted the manufacture of cotton goods until the' year 1855, when it was thought expedient to divide the concern into three parts. Two of these organized under the General Manufacturing Law, as separate companies, took mills Nos. 2 and 3, and embarked in business. The third and remaining portion continued, under the charter obtained as before stated, and under the corporate name then assumed, to make cotton fabrics in the original factory known as No. 1. In September 1856, this comprised the defendants in the present suit, who by their agents purchased a large quantity of cotton from the plaintiffs, and gave the promissory notes of the company therefor. Shortly after the separation, the mills failed in rapid succession, No. 1 failing in the beginning of 1857.</p> <p>Of the $500,000 capital of the original company four hundred and ninety-five shares were never issued or paid for, either before or after the incorporation.</p> <p>A number of persons, among them tbe plaintiffs, dealt with the association, while it was a general partnership, and many of the original partners remained with the company to the last, and are embraced among the defendants in this suit.</p> <p>The present suit was brought against the individuals who composed the company at the time of the purchase of cotton from the plaintiffs, upon the ground that there was no actual compliance with the Act of April 7th 1849, that the certificate subscribed, &c., under that act was fraudulent and void, and that the members of the association remained liable thereafter as general partners.</p> <p>The plaintiffs offered evidence of these facts, on which they relied to impeach the certificate, to which defendants objected. The court overruled the offer, and plaintiffs excepted; whereupon a verdict went for the defendants, this writ of error was then taken, and the refusal of the court below to admit the evidence assigned for error here.</p> <p>The case was argued at Harrisburg in May 1861, and a re-argument having been ordered, it was heard before a full bench in May 1863.</p> <p>argued : The Act of April 7th 1849, commonly called the General Manufacturing Law, P. L. 563, § 1, provides, that when five or more persons may desire to form a company under its provisions for any of the purposes therein mentioned, and shall have subscribed a capital of not less than $20,000, and actually paid in one-fourth part thereof, they shall sign and acknowledge a certificate, stating the name and objects of the company, the amount of capital stock subscribed, the amount actually paid in, the number and value of shares, the residence of the-subscribers, &c., &c. Section 7, P. L. 565, requires the capital stock to be called in and paid in money, &c., &c. That the positive and vital requirements of a statute cannot be disregarded; and that the subscriptions were not made as stated; that no money was actually paid in, and that the names, residences, and shares of the real owners were not given at all.</p> <p>That there was no substantial or any compliance with the statute. See Andrews v. Schott, 10 Barr 47.</p> <p>As to the alleged fraud, they cited opinion of Coulter, J., in Mitchell v. Kintzer, 5 Barr 216. Also Jackson v. Summerville, 1 Harris 359; Abbey v. Dewey, 1 Casey 413.</p> <p>argued: That the defendants were a corporation defacto, in tbe use and exercise of corporate franchises and privileges, and that tbe question whether it is a valid corporation or not cannot be raised collaterally, but only by direct process, against the corporation.</p> <p>That a certificate, under the Act of April 7th 1849, stating the name, object, &c., recorded in the recorder of deeds office, and certified to the office of the secretary of the Commonwealth, makes the individuals therein named a body politic and corporate in fact and in law: citing Justice McLean, in Falconer & Heg-gins v. Campbell et al., 2 McLean’s C. Ct. Rep. 195. Also Jones v. Dana, 24 Bar. Sup. C. Rep. 402.</p> <p>That there was no analogy between a corporation formed under the Act of 1849, and a limited partnership under the Act of 1836. Their objects are entirely different — one being to create corporations, that of the other was to avoid corporations by furnishing individuals with a means of trading, with a limited responsibility: Angelí & Ames on Corp. § 777; McConkey v. Turnpike Co., 1 Penna. R. 426; Lehigh Bridge Co. v. Lehigh Coal Co., 4 Rawle 9; Irwine v. Lumbermen’s Bank, 2 W. & S. 190.</p> <p>A charter and user under it, are all that a corporation is called upon to prove, to establish its existence in a litigation with individuals dealing with it: Jones v. Dana, 24 Barb. Sup. C. R. 395. A corporation cannot be attacked collaterally, but only by direct process against it: Wright v. Shelly, Railroad Co., 16 B. Mon roe (Ky.) 4; President, &c., v. Thompson, 20 Ill. 197.</p>

■ This was a foreign attachment in account render, brought October 22d 1860, by Peter J. Little against Jacob Strock. On the 14th of February 1861, the defendant moved the court for a rule to show cause why the service of the writ should not be set aside upon the ground that a writ of foreign attachment cannot b.e sued out in account render.

This was an action of trespass on the case brought by The Adams Express Company against The Hagerstown Bank, to recover $3315 of the notes of the bank, which the plaintiff averred were the property of the Express Company, and wrhich had been cancelled or destroyed, whereby the bank was relieved from all liability to redeem them.

This was an appeal by Jane McDowell from the decree of the Orphans’ Court distributing the balance in the hands of James Anderson, administrator, &c., of Samuel McDowell Addams, deceased. The case was this : — The intestate, Samuel McDowell Addams, died on the 23d day of September 1861, leaving no issue.

<p> Debts of decedent, lien of when not divested by Orphans’ Court sale. </p> <p>1. A sale of a decedent’s real estate by order of the Orphans’ Court upon proceedings in partition, within two years from the grant of letters of administration, does not, under the Act 24th February 1834, divest the lion of his debts, which at his death attached for the period of five years.</p> <p>2. Therefore, where an owner of land, as tenant in common with another, died, and on partition after appraisement and refusal to accept, his undivided half interest was sold, by order of the Orphans’ Court-, three months after the grant of letters of administration to the co-tenant, whose land was afterwards sold by the sheriff: on distribution of the proceeds it was Held, That the Orphans’ Court sale did not pass the decedent’s estates freed from the lien of his debts, which, at his death, had attached for the period of five years.</p>

This was an issue under the Sheriff’s Interpleader Act, in which John Miller was plaintiff, and Peter A. Fry, for the use of Thomas Metcalf, was defendant, to try the question of the ownership of four acres of barley, which had been put out by Daniel Ward, as tenant of Mr. Atchison Ritchey, and was growing when Ward removed from the farm.

This case came into the Common Pleas by appeal from the judgment of a justice of the peace, and was an action of assump-sit by John Ely and Solomon Ely, partners doing business as John & Solomon Ely, against Eranklin Eunk.

<p>Duty of sheriff on fieri facias. — Fraudulent sale of chattels.— Opinion of court as to effect of testimony, when error. — Evidence for defendant on charge of fraudulent transfer of personal property.</p> <p>1. It is the duty of a sheriff, when indemnified by a plaintiff in an execution, after levy, to sell the goods levied, or, if they be claimed by others, to apply for an interpleader, under the Interpleader Act of 10th April 1848: .and it is irregular and unwarrantable to return to the writ that the property 'was claimed by others who had given bond.</p> <p>2. A bill of sale, absolute upon its face, by an insolvent debtor, and delivery of possession of goods in pursuance of it, is fraudulent and void as against creditors, if accompanied by a secret trust from which the debtor might derive ultimately a pecuniary benefit.</p> <p>3. Where, in such a transfer, there was evidence of a secret trust in favour of the debtor in the declarations of the transferees, and the court, while affirming in the charge, that the hill of sale, if accompanied by a trust in favour of the debtor, was fraudulent and void, and referring the fact as a question for the jury, instructed them that-the evidence of the secret trust was weak, and that the declarations, if made, were gratuitous and deserving of little consideration in establishing it, and that to be of effect they should have been made at the execution of the contract, the instruction was erroneous as tending to mislead the jury as to the force and effect of the testimony.</p> <p>4. In an action by the execution-creditor against the sheriff for a false return, where he was permitted, in defence, to set up title in the assignees of the debtor under a bill of sale, which was executed, and possession delivered thereunder before the levy, evidence of an indebtedness by the debtor as a consideration for the sale, is relevant and admissible, but only upon the question whether or not the sale and transfer were fraudulent in fact: if no indebtedness existed the sale was a fraud in fact: if it did exist, and the transfer was accompanied by a secret trust in the debtor’s favour, this, though binding and proper as between the parties to it, was a fraud in law and void as against creditors.</p> <p>5. But rebutting evidence on the part of the plaintiff to show that no indebtedness existed is also admissible: and the rejection of plaintiff’s offer to prove it, was improper.</p>

<p>Appeal from the Common Pleas of Lebanon county.</p> <p>This was a proceeding in equity, founded on a bill filed January 4th 1862, by David Steinmetz and Henry Landis, administrators of Jacob Becker, deceased, against Jonathan Bender, sheriff of Lebanon county, and Jacob Witmer and other creditors of Henry Thoma, and against the said Henry Thoma.</p> <p>The bill set forth that Henry Thoma is the owner in foe of a tract of land of about forty acres, situate in Union township, Lebanon county, with a steam grist and saw mill thereon erected . — that there are liens upon said property, as follows, viz.: a dower of about $500 in favour of the widow of Abraham Wenger, deceased, being the first -lien upon said property, and two judgments in favour of complainants, administrators as aforesaid, for $5000, which are the next liens, that said property, being all the real estate of Henry Thoma, is not worth and would not bring so much as the amount of said liens with their interest, that Jacob Witmer and other execution-creditors are the owners of judgments against said Henry Thoma, the liens of which are subsequent to the dower and judgments in favour of complainants as aforesaid, that said Henry Thoma has no personal estate, the same having been levied upon and sold, and is wholly insolvent. That said steam grist and saw mill contained a steam engine, boilers, and other machinery necessarily connected and used together, essential to the working of the mills, and so annexed, fixed, and embedded in the structure of said mills as to be part of the freehold; that said Henry Thoma, acting in concert and collusion with Jacob Witmer and the other execution-creditors, defendants, and by their advice and instigation, and with intent to appropriate the real estate, the proper fund of your petitioners, administrators as aforesaid, for the payment of their judgments to the payment of the judgments of the said Jacob Witmer and other execution-creditors, which otherwise would not he paid, did, on or about the day of December 1861, and shortly before</p> <p>the issuing of the executions by said Jacob Witmer and other execution-creditors, defendants, did, by himself and others, detach from its bed and fastenings in said grist and saw mills a part of said engine and other machinery, and removed the same to another part of said premises, with intent to convert the same into personalty, and with intent to render the same liable to the executions of Jacob Witmer and other execution-creditors, defendants, and in fraud of complainant’s administrators as aforesaid, and that said Jacob Witmer and other execution-creditors, defendants, in pursuance of said concert and collusion with said Henry Thoma, defendant, have issued executions upon their said judgments, and the said Jonathan Bender, sheriff of the county of Lebanon, one of the defendants, by virtue of said executions, and under the directions of the said Henry Thoma, defendant, and Jacob Witmer and other execution-creditors, defendants, have leviedupon parts of said steam-engine and machinery, so detached as aforesaid, and has advertised and offers the same at public sale, on Saturday, the 4th day of January 1862, as the personal property of said Henry Thoma, and will sell the same, unless restrained by your honourable court.</p> <p>That said detached parts of said engine and machinery will he greatly sacrificed if so sold, being but of little value so detached, and that the value of said real estate will be greatly impaired and lessened, and the security of the judgments of complainant’s administrators as aforesaid impaired, and irretrievably and irreparably injured.</p> <p>To which was added the usual interrogatories, with a prayer for an injunction to restrain respondents from selling the said detached parts of the engine and machinery, or in anywise interfering or intermeddling therewith.</p> <p>The answer of the sheriff admitted the fact of executions being in his hands against Henry Thoma in favour of Jacob Witmer, Jr., and the levy on the detached engine, &c., by order of the plaintiff, but denied all unlawful combination, &c. The answer of Jacob Witmer, Jr., admitted the existence of the executions, the fact of the levy, that he was the brother-in-law of Henry Thoma, was surety for him in bank, and had other claims, which were the consideration of the judgments; denied that the engine was detached at his instance, directly or indirectly, or by any one, for him or on his behalf, but averred that although the engine was in the mill it was not embedded in the walls, but simply screwed fast, and was removable without any injury to the building.</p> <p>The answer of Henry Thoma averred his ownership of other real estate in Lebanon county, but admitted his insolvency; that tbe engine in question bad been converted into personalty, and removed out of and away from the building by his express orders and direction, and has since been levied on under execution sued out by Jacob Witmer, Jr., the nature of whose claims he set forth at length.</p> <p>That he detached the engine and machinery on his own motion, and for the purpose of having it levied on in payment of the very meritorious claim of Mr. Witmer ; that the mill was badly located, and had been a source of loss to him, and would be to his successors, and that in his opinion more of his debts would be paid by sales thus made than in any other way, &c., &c.</p> <p>At the instance of the complainants, depositions were then taken and filed.</p> <p>On hearing, the court below (PearsoN, P. J.) decreed, “ That the defendants must be required to replace the steam-engine, and all the machinery connected therewith, within the mill-house, from which it was removed; and be perpetually enjoined from selling, disturbing, or otherwise disposing of the same, and that they pay the costs of the suit.”</p> <p>From this decree Jacob Witmer, Jr., for himself and the other respondents, entered this appeal, assigning the decree for error.</p> <p>argued: 1. That, as 'owner in fee of the tract of land and mill thereon erected, he had the right to detach the said steam-engine, and with the view to convert the same into personalty for the purpose of selling the same, or with the view of rendering it liable to be levied on as personal property, and sold by the sheriff; and the more especially so if he had completely severed it before an execution had been issued upon a judgment existing against him as owner of the freehold.</p> <p>The right of an owner so to act with his estate, and particularly where it is done with the view of paying the debt of a bond fide creditor, is recognised by the decisions of this court: Ross’s Appeal, 9 Barr 491; Heaton v. Findlay, 2 Jones 308, 309 ; Harlan v. Harlan, 8 Harris 303.</p> <p>2. The complainants here have no right to interfere with the proceedings on the executions of the defendants below, or to question the disposition of the property of Thoma, as made or intended so to be by Thoma.</p> <p>Before a creditor can question the disposition of the debtor’s property, he must have completed his title at law by judgment and execution: Angelí v. Draper, 1 Vern. 399; Shirley v. Watts, 3 Atk. 200; Bennett v. Musgrave, 2 Vesey 51; Balch v. Wastall, 1 P. Wms. 445; Wiggins et al. v. Armstrong et al., 2 Johns. Ch. Rep. 144; Camp v. Bates, 11 Conn., cited in the judge’s opinion.</p> <p>3. The owner in fee simple of lands, unencumbered by mortgage, cannot legally be charged with committing waste upon premises thus owned by him. No adjudged case can be found, deciding that such owner can be legally charged with the commission of waste under similar circumstances with those disclosed in this case.</p> <p>Our Acts of Assembly provide very extensively for the prevention and punishment of waste ; yet none of them embrace a case situate as is the case in hand. The remedy given to a mortgagee is, by Act of March 29th 1822, modified if not restricted by the provisions of the Act of 22d April 1850.</p> <p>4. The acts done here do not amount to nor constitute a legal fraud, or at least no legal inference of fraud can be deduced therefrom: Lowry v. Coulter, 9 Barr 851; Covanhovan v. Hart, 9 Harris 495. See also Hopkinson v. Beebe, 2 Casey 85; Siegel v. Chidsey, 4 Id. 279; York County Bank v. Carter, 2 Wright 446. Nor was there any fraud in fact, nor any combination, collusion, or conspiracy. Nothing of the kind is established by the bill, answers, or evidence in the case.</p> <p>All the respondents severally deny that there was any concert of action, collusion, or combination to effect or do the acts that were done, or any other illegal act. Witmer was not present when the engine was detached or removed, and knew nothing of it until informed of it afterwards by Thoma. It is true that Lantz & Wenner were assisting to take out the engine, but at that time they had no means of obtaining their debt, unless by a private purchase of the engine from Thoma. They had no judgment until after the severance of the engine.</p> <p>1. The severance of the engine and machinery, under the circumstances of the case, was within the restraining power of the court: First, because it was waste, such as a judgment-creditor is entitled to prevent by injunction as against his insolvent debtor. • Second, because it was an attempt to perpetrate a fraud upon a prior judgment-creditor. The bill, answer, ,and evidence disclose that the value of the property, as it stood with engine and fixtures in the mill, did not exceed the amount of the dower charged upon it, and complainants’ judgments ; that Wit-mer was a subsequent judgment-creditor; that Thoma, the owner, and others combined and confederated to deprive complainants of their priority of lien, and impair the security which the law gave them. The “ insolvency” is alleged in the bill, and admitted in the answer. The “ combination and confederacy” appear from the evidence of Meiley, Stager, and Borgner. There is no question that the purpose of the severance was to divest the complainants of the rights of lien secured to them by the law as prior judgment-creditors, and the payment of the judgment which, upon the sale of the real estate as it stood before the severance, would be entitled to nothing. The defendants therefore meditated a -violation of the legal rights of the complainants, and a_ fraud in law and in fact. This case is plainly distinguishable from the cases cited by the plaintiff in error, which rule that “ preferences by judgment and execution are only a mode of paymentthat “ a conveyance by a debtor, in failing circumstances, to a creditor in payment of a debt, is not fraudulent,” and that “ creditors of the same insolvent debtor have a right to take their debt in anything the debtor is willing to pay.” But in the case in hand, the rights of the creditors are fixed by the act of the debtor, and the sanction of the law; the land with the fixtures is bound by the lien of the earlier judgment, and complainants have a legal right to be first satisfied out of its proceeds, and an attempt by the failing debtor to denude the property, and thus impair and lessen the security and value of the judgment, either for his own benefit or subsequent judgment-creditors, reversing the order established by the law, is in violation of the rights of the prior judgment-creditor, and a fraud upon the law: Reinheimer v. Hemmingway, 11 Casey 432; Roberts v. The Dauphin Bank, 7 Harris 71; Uhler v. Maulfair, 11 Id. 481; Reese v. Addams, 16 S. & R. 40. In Pennsylvania a judgment-creditor advances liis-money upon the immediate credit of the land. The title remains in the debtor, but the land is pledged to secure the creditor’s debt, in pursuance of the provisions of law. The debtor cannot alienate so as to discharge the lien of the judgment, and if he cannot alienate the whole he can have no right to alienate part.</p> <p>2. The remedy by estrepement for waste, in favour of a judgment-creditor, by the Act of 1822, we know arises only after the lands bound by such judgment, shall have been condemned by inquisition, and does not extend to lands which have been extended and rental assessed, nor to lands before levy. But the preventive and protective power of a court of equity in Pennsylvania in 1863, in a case like the present, is not to be limited by the provisions of the Act of 1822, relating to writs of estrepement. This court has said in Stockdale v. Ullery, 1 Wright 486, that “ the courts in granting injunctions are not restricted to ‘acts contrary to law,’ but may exercise this power to restrain acts contrary to equity also; equity being so much a part of the law of Pennsylvania as that the word law often means both law and equity, or either.” It is a well-settled fundamental principle of equity “ that Courts of Chancery grant injunctions against w'aste, to restrain acts against conscience, or the existing rights of others:” 1 Mad. Chan. 123, 126.</p> <p>3. The acts complained of were waste, and a judgment-creditor is entitled to the writ of injunction to stay their commission: Cox v. Goodfellow, cited in a note to 8 Yes. 104; Brady v. Waldron, 2 Johns. Ch. 148. It is contended, in opposition to tbe granting of tbe injunction, that a judgment-creditor has no such interest or right in the real estate as will entitle him to the writ, to prevent its waste and destruction by the owner and others, even though his security may thereby he rendered inadequate. And this presents a question which does not seem to have been decided in terms, or indeed even raised, either in our own courts or elsewhere, so far at least as the court below, or the counsel in this case, have been able to discover.</p> <p>Is there any radical essential difference in principle between the cases in which it has been settled that injunctions will be granted, and a case arising on a hill brought as here by a judgment-creditor ? An examination of the principles which govern the cases will show that there is not.</p> <p>The party applying for an injunction to stay waste, need not possess the legal title, for it has been decided that where a mortgagee in possession commits waste by cutting down timber, the court, on a hill brought by the mortgagor to stay the waste, will grant an injunction: Earrant v. Lovell, 3 Atk. 723. And in Roberts v. The Bank, 7 Harris, it is said that an injunction lies at the suit of a second mortgagee to prevent waste. Nor is it necessary that the party applying should possess any interest or estate in the'land itself, for an injunction will be granted at the suit of an equitable mortgagee against the mortgagor : Croekford v. Alexander, 15 Yes. 138, and Rickert v. Madeira, 1 Rawle 328.</p> <p>It is the result of the cases in Pennsylvania, and several of the other states, that though the land mortgaged may be taken in execution for the debt of the mortgagor, it is not so liable for the debt of the mortgagee, before foreclosure of the equity of redemption : Rickert v. Madeira, 1 Rawle 328, 329; Blanchard v. Colburn, 16 Mass. Rep. 346; Jackson v. William, 4 Johns. 41. In this state a mortgage, like a judgment, confers upon the mortgagee nothing more than a lien upon the land, which may be defeated by payment of the money loaned at any time before sale made by the sheriff, in pursuance of our Acts of Assembly, giving a remedy to the creditor: Asay v. Hoover, 5 Barr 35; Edmunson v. Nichols, 10 Harris 79, Lewis, J.</p> <p>We conclude that though the identical point before this court in the present case has never been decided in Pennsylvania, yet all the principles involved in it have been well settled, and the decision of the case involves nothing but the correct application of old principles to new facts. There is one case decided in a sister state, which, if it he received as authority, must rule this case. This is the ease of Camp v. Bates, 11 Conn. 51. That case decides that “where the land of an insolvent debtor has been attached in a suit at law, a Court of Chancery, during the pendency of such suit, will enjoin the debtor from committing waste.”</p> <p>We can see no difference in principle between this case and our own; if there be any, it must be in our favour, because, while in both cases there was a lien, there was a judgment in ours alone.</p>

<p>ERROR to the Common Pleas of Yorlc county.</p> <p>This was an action of debt brought by Henry Sidle against James M. Anderson and William S. Anderson.</p> <p>The plaintiff declared on two notes of defendants, under seal dated December 3d 1845; one for $123, and the other for $120, with interest from date.</p> <p>On the trial the notes were given in evidence without objection.</p> <p>The defendants set up two grounds of defence: First, a set-off by boob account for $288.86, running from December 16th 1846 to September 27th 1866. To $161.89 of this the plaintiff replied the Statute of Limitations, which was sustained. As to $88 of this account the plaintiff avowed and offered evidence to show that it was credited on another note, but insisted that if it was not thus credited, it was also barred by the Statute of Limitations.</p> <p>Secondly, an order, of which the following is a copy:—</p> <p>“ Dillsburg, August 25th 1845.</p> <p>“Mr. Talbot Morrisson, Jr.: You will please pay James M. Anderson $250 out of the money betwixt you and me, whenever he presents this order to you, and I will settle with you for the same amount.</p> <p>“ Witness my hand and seal.</p> <p>“ Samuel W. Sidle, [l. s.]</p> <p>“Witness: William S. ANDERSON.”</p> <p>Which order Morrisson had refused to accept, but which it was averred, after Samuel Sidle’s death, the plaintiff, who was his father and administrator, had agreed to settle with him, and not plead the Statute of Limitations.</p> <p>There was a number of witnesses examined for and against this part of the defence, and the order was admitted in evidence under exception.</p> <p>Under the ruling of the court below, there was a verdict and judgment in favour of the defendants, finding a balance due them of $36.37.</p> <p>This writ was thereupon sued out by the plaintiff, for whom the following errors were assigned:—</p> <p>1. The court erred in admitting in evidence, on the part of the defendants, the Morrisson order.</p> <p>2. In their general charge to the jury in saying as follows:—</p> <p>“ The next question is, did Mr. Henry Sidle promise to pay this order by settling it, or crediting it on these notes ? There is no pretence by defendants that he did anything more than promise to settle it. Settle it, they say, by crediting it on these notes. This allegation depends on the testimony of John Berk-heimer and Alexander King. Does this testimony satisfy you that Sidle agreed to settle this order by applying it as, a credit on these notes? In considering this question, the jury will remember-these facts: Sidle held three notesthe two in suit against the defendants jointly, and one against James M. Anderson, upon which he had credited the $88, the price of the dun mare. No other notes are shown.- Anderson had, besides this order, a book account. If the jury are satisfied that the Mor-risson order was the one testified about by Berkheimer and King, and that he agreed to settle with James M. Anderson when he had time, they will inquire what was to be settled ? Was it some accounts between the defendant and deceased son of Henry Sidle ? If it was, it is not shown that -Anderson owed Samuel W. Sidle or his estate anything. What was to be settled with the order, the jury will determine from all the facts of the case. Did the plaintiff mean to agree that the order was to liquidate the notes in suit ? If from his conversation and all the facts of the case, the jury conclude that Sidle agreed that these notes should be liquidated by the order, having made that arrangement he would be bound by it, and the jury will credit the amount of it on the notes in suit.”</p> <p>3. In charging upon the plaintiff’s third point, viz.:—</p> <p>“ If the jury should in fact believe that such a promise was made, yet there having been no consideration for the promise, and no funds in the hands of the plaintiff belonging to the estate of Samuel W. Sidle, deceased, such promise is a nudum factum, and said order cannot be set off — as follows :—</p> <p>“Answer. — This is correct if the plaintiff had not funds in his hands belonging to the estate of Samuel W. Sidle, or was not liable to account to the creditors of the said S. W. Sidle, for the balance appearing to be in his hands on the face of his administration account of said intestate. But if he had money in his hands belonging to the estate of Samuel W. Sidle, out of which he ought to have paid this order, or having had them, paid them out to the widow, as is shown by her release, this point is not correct.”</p> <p>4. In charging upon the plaintiff’s fifth point, viz.:—</p> <p>“ That this order on Morrisson cannot be set off in this suit, as its effect would be to charge the plaintiff as administrator of Samuel W. Sidle, deceased, with damages out of his own estate; or to answer individually for the debt or default of another; there not having been any agreement in writing to that effect, signed by the plaintiff, or by any one by him authorized;” — as follows:—</p> <p>“Answer. — This point is not correct. The court cannot affirm this proposition.’</p>

<p>ERROR to tbe Common Pleas of Clinton county.</p> <p>This was an action of ejectment, brought July 29th 1856, by David Allen against Sarah. S. Allen, Hugh Devling, and William Allen, for a tract of land in Bald Eagle township, containing ¡-bout two hundred acres.</p> <p>The plaintiff claimed under and gave in evidence a valid legal title to the land in controversy, accompanied with possession by himself, his tenant, and those under whom he claimed from 1810 to 1850, and rested.</p> <p>The defendants then gave in evidence, 1. The declarations of the plaintiff, which they alleged amounted to a parol sale or -gift of the land by him to two of his sons, James Allen and H. F. Allen, the former of whom was then deceased, and the latter a resident of the state of California, under which sale or gift they claimed; which were substantially as follows:—</p> <p>On the 27th December 1852, James Allen called on F. Platt, a surveyor, to run off a portion of this land for the wife of Joseph Wilson, and plaintiff being along when the survey was ma,de for Mrs. Wilson, said “ the boys” had no need for the land — it belonged to them; had paid him for it; had done a good deal for him, but did not say what he got for the land, nor when he received it; that in 1852 plaintiff showed a witness where the line ran between the fifty or sixty acres, the balance of the tract and the boys’ part, but witness could not say whether the plaintiff said the line was run or was to be run, and that when he bought the place he told the boys if they would work and help him to pay for it he would give it to them ; they had done so, and he had given it to them.</p> <p>Another witness testified that in 1854 or 1855, plaintiff showed him where he claimed to, and where the boys claimed, and told him where the line was to be run, and signified the boys had paid his debts, but he was doing well for them — was giving them that property for it.</p> <p>Another testified that he did the carpenter work of a house for James and H. F. Allen, that was built on this land in the fall of 1850 or summer of 1851, and boarded part of the time with the plaintiff, and that plaintiff gave him an old house at $20 on account of his work.</p> <p>Another testified that plaintiff had told him he had given the boys the place in consideration of what they had done for him.</p> <p>Another that plaintiff had told him, seven or eight years before the trial in the court below, the boys had brought him out of difficulty, and he was about giving or selling them the place.</p> <p>2. They also gave in evidence a deed from plaintiff, in his handwriting, to Mrs. Sarah F. Wilson, dated January 11th 1853, which contained the following recital: “It being a part of a tract of land conveyed bv Patrick Moore and wife to David Al-Isa, dated the 1st day of April 1825, as reference to said deed mil more fully appear, and the said David Allen has conveyed to his two sons, James Allen and H. E. Allen, two hundred acres, more or less, of said tract, by articles of agreement, dated April 1st 1849, for the consideration therein mentioned, and now, by request of the parties, I, David Allen, make the above deed of conveyance to the said Sarah E. Wilson.” And with this evidence rested their case.</p> <p>The plaintiff, to rebut the evidence given by defendants, proved that James Allen and H. E. Allen went into possession of the land in controversy in 1848, as his tenants, both being then unmarried, that they were to give him a share of the grain as rent, and after they had farmed about two years under this parol lease, they desired to purchase the land, and he had agreed to sell at a price and on terms then agreed on. That they were to give $12.50 per acre for two hundred acres, to be paid as follows: $500 in hand, and $200 a year for six years thereafter; the first three payments to be without interest, and the last three to be on interest, and upon payment of the cash and the six annual payments, that he was to make a deed, and take their joint bond and mortgage on the land for the balance. That he afterwards drew an article of agreement setting forth the contract, and presented it to them for their signatures, which they refused to sign on account of their inability to make the first payment.</p> <p>That this unexecuted agreement, of which he retained a copy, was permitted to remain in their possession for a time, and was subsequently returned to him. That this land had not been surveyed off, or its boundaries fixed, and the greater portion of which was in woods. That he furnished James and H. E. Allen with money and provisions vdien previously they had been lumbering in Clearfield county. The timber used in the building of the house had been gotten off of the place, and that he boarded the hands while employed at the building of the house. That the land was regarded as his down to 8th May 1855, and was advertised for sale as his land in the Clinton Democrat, a paper published in Lock Haven.</p> <p>The plaintiff further proved that Hugh E. Allen had abandoned the land, and requested him to take it back, and that James Allen, during his last sickness, said he had not paid for the place, and shortly before he died, when being requested to make a will, declared he had nothing to will.</p> <p>The court below instructed the jury as follows :—</p> <p>“ As to the undivided moiety of the land your verdict must be for the plaintiff, since Hugh Franklin Allen has abandoned any rights he may have ever had.</p> <p>“ Where a parol sale of land is set up to defeat the legal title, to take the case out of the Statute of Frauds and Perjuries the evidence of tbe sale must be direct, positive, clear, and satisfactory.</p> <p>“ The contract must be clearly proven, the terms of it, the boundaries, the consideration, and it must be shown that the possession was taken in pursuance of the contract; the erection of buildings, although sometimes a circumstance, has but little force.</p> <p>“ One who relies on two equitable titles, a parol purchase and a gift, cannot receive any favour at the hands of a court and jury. They are inconsistent with each other. He cannot have paid for it and at the same time received it as a gift. . In the language of the Supreme Court, to say both are good is false, to say that he does not know which, is to admit that neither is true. Equity does not lend its aid to experiment on legal titles in favour of those who can present no distinct and consistent claim. It sanctions no war of which the manifesto is false on its face.</p> <p>“In alleged parol sales to children, and more particularly in alleged gifts to them by the father, the very nature of the relation requires that they should be proved by stronger evidence than that which might be sufficient among strangers. The proof must be direct, positive, express, and unambiguous — the terms must be clearly defined, and all the acts necessary for its validity must have especial reference to it, and nothing else.</p> <p>“ So far, then, as there is any evidence in the cause as to the sale made in 1850, we instruct you in the most positive terms that the defendants have no case, and your verdict'must be for the plaintiff.</p> <p>[“ Was there an agreement, or article made in 1849 between the plaintiff and his sons ? If there was one, it is to be found in the recital of the deed of January 11th 1853, from David Allen to Sarah Wilson. That recital is in these words:” — (The learned judge here read the recital to the jury, and then proceeded :</p> <p>“ This recital is the only evidence of a contract having been entered into in 1849.] It is your duty to reconcile the evidence. The land was advertised for sale as the land of the plaintiff, in 1855 — the timber was gotten off the place for the buildings— the hands boarded at the plaintiff’s. He furnished the boys while they were lumbering in Clearfield. The defendant declared he had nothing to will, and it is in proof that although the plaintiff was indebted, he received money more than once from his father’s estate. No article is shown except the unexecuted one of 1850.</p> <p>[“ In the construction of a deed the covenants and recitals are to be taken strongest against the grantor, and if you can find evidence of an article of agreement in 1849 (which, if there had been one, should have been produced by the defendants), against the evidence in the cause, except what is contained in the recital in the deed, then you can find for the plaintiff only the undivided moiety or half part of the land,] otherwise, and if the recital of the date was a mistake as to the date, your verdict will be a general verdict for the plaintiff.”</p> <p>Under these .instructions there was a verdict and judgment in favour of the plaintiff, for the undivided moiety of the land described in the writ.</p> <p>This writ was thereupon sued out by the plaintiff, who assigned for error so much of the charge as is enclosed above in brackets, and that the court did not withdraw the evidence of the defendants from the jury, and decide the case as upon a demurrer to the evidence, and direct a verdict for the plaintiff.</p>

<p>ERROR to the Common Pleas of Lancaster county.</p> <p>This was an action of ejectment, brought November 10th 1859, by John A. Wright against the Chestnut Hill Iron Ore Company, for so much of two lots of ground as is covered by the railroad which leads from the tunnel head of the Shawnee Iron Works to the Susquehanna river.</p> <p>The plaintiff claimed title to the lot as the vendee of the sheriff of Lancaster county, by whom they were sold under an execution against Archibald Wright, to whom they had been conveyed, December 10th 1855, by Bhoda, Charles M., and Elizabeth Wright.</p> <p>The defendants claimed as purchasers at sheriff’s sale of the Shawnee Iron Works, under an execution against the owners, Archibald and John Wright.</p> <p>The Shawnee Furnace came, several years ago, into the possession of Messrs. A. &■ J. Wright, who reconstructed and extended it, and built a railroad from the tunnel head to the bank of the Susquehanna, a distance of about half a mile, a portion of which was an inclined plane, whereby the coal and ore that were drawn in cars from the river to the commencement of this slope were, by means of a steam-engine, bolted to the trestle-work of the plane, carried thence to the top of the stack, 'into which they were delivered from the cars. By this railroad, thus operated, all other modes of transportation for the materials used in the manufacture of the iron, except the limestone employed to flux the ore, were superseded. Four hundred and eighty yards of the railroad were on the land belonging to the furnace, two hundred and seventy-five yards on property belonging to John Pusey, two hundred and fifty yards on the two lots before mentioned, held by Archibald Wright under the deed of Rhoda Wright, &c., dated December 10th 1855, and one hundred and five yards on the wharf and property attached to it. All the hauling of the coal and ore to the furnace, and the manufactured iron from the furnace to the wharf on the river, was upon this railroad.</p> <p>On a judgment obtained against the Messrs. A. & J. Wright, the Shawnee Furnace wras, under and by virtue of an execution, duly levied upon, the sheriff describing the furnace property, and setting forth in his return that he levied upon the said furnace, buildings, and improvements, but without using the term appurtenances. He afterwards advertised the same for sale, describing in the advertisement the said furnace buildings and the appurtenances as the property of the defendants to be sold. At the time of the sale, the defendants, Messrs. A. & J. Wright, being present, the sheriff read this advertisement and description, with the conditions of sale, and proceeded to sell the same according to that description. It was sold to John Fallon, and a deed conveying the property, with the description contained in the advertisement and conditions, was made to him by the sheriff. John Fallon afterward conveyed the same,'with the identical description, to Percy Pyne, who conveyed it in like terms to the Chestnut Hill Iron Ore Company, the defendants.</p> <p>The question was whether the land of the two lots conveyed by Rhoda Wright and others, in the deed of the 10th December 1855, aforesaid, on which the railroad was laid, -was conveyed by the sheriff’s deed to John Fallon or not. It was agreed that the question should be confined to so much of the said land as constituted the road, or on which the road was founded, with the slopes on either side made by the grading, and it was conceded that, so far as the levy and deed are concerned, this is a question of law. It was embraced in the first point proposed by the defendant, and the counsel having submitted it -without discussion, the court (Hayes, P. J.) decided that this land and the railroad passed and were conveyed by the sheriff’s sale and deed, not only by the terms of the levy, advertisement, and conditions of sale, but as an incident of the furnace, necessary to its use and operation, according to the design of the Messrs. Wright in their construction of the same.</p> <p>The learned judge added, that the presence of Messrs. A. & J. Wright at the sale, and hearing the conditions and advertisement read without objection, confirmed this view of the case, and precluded them from any further exception to the title of an innocent purchaser. The jury were therefore directed, if they believed that they were present at the sale, to render their verdict in favour of the defendants.</p> <p>The errors assigned were,</p> <p>1. That the court erred in admitting in evidence, on the part of the defendants, the sheriff’s advertisement under Fallon’s execution, with proof that John A. Wright and Archibald Wright were both present at the time of the sale, and when the conditions and advertisement were read by the sheriff.</p> <p>2. In admitting in evidence, on the part of the defendants, the testimony of James A. Richards, that without this railroad, if interrupted, the furnace could not be worked in the way it was designed to be worked when the railroad was constructed.</p> <p>3. In overruling the plaintiff’s offer in evidence of the mortgage of Archibald Wright and John A. Wright to John H. Irvine et al., trustees, dated 4th January 1855, on property therein described: the description being in the identical words of the levy in the execution on Fallon’s judgment, recorded in Mortgage Book 13, page 615, and is given to secure various articles of indebtedness, among which are the notes on which Fallon’s suit was brought.</p> <p>4. In charging the jury that this land and the railroad passed and were conveyed by the sheriff’s sale and deed, not only by the terms of the levy, advertisement, and conditions of sale, but as an incident of the furnace, necessary to its use and operation, according to the design of the Messrs. Wright, in their construction of the same.</p> <p>5. In charging the jury, “the presence of Messrs. A. & J. Wright at the sale, and the reading of the advertisements and conditions of sale without objection on their part, confirms this view, if confirmation were needed. After such acquiescence, they are precluded from any future exception to the title of an innocent purchaser.”</p> <p>The maxim invoked in behalf of the defendant in this case, “ Ouiounque aliquis quid conoedit, concederé videtur et id, sine quo res ipsa esse non potuit,” must be understood as applying to such things only as are incident to the grant and directly necessary for the enjoyment of the thing granted: Lord Darcy v. Askwith, Hob. 234. Therefore, a lease of the coal-mines on land was held not to pass the right to fell trees on the land for the use of the mines. See also Pitt v. Lady Olaverinth, 1 Barnard 318; Pomfret v. Ricroft, 1 Williams’s Saunders 323, n. 6; Tomlin v. Fuller, 1 Vcntr. 48; Wilson v. Bagshaw, 5 Man. & Ry. 448; Osburn v. Wise, 7 Car. & P. 761.</p> <p>Where a right of way has been merged in unity of possession, it does not pass by a subsequent deed, under the word appurtenances: Plank v. James, 5 Barn. & Adolph. 791 (27 E. 0. L. R. 191).</p> <p>Here there was no right of way, as Wright owned the fee. The description in the levy is specific, by metes and bounds, and does not include the lots in controversy. The word appurtenances is not used, and if it had been, it would not include two lots of ground separated from the grant by other land. I can find no case wfyere, by a grant of a messuage and land by specific boundaries, other lands are held to pass as an incident; nor will a right of rvay over other lands of the grantor pass, although he may have used such way as owner of the fee, as was the case in Plank v. James.</p> <p>Things incorporeal only can pass as appurtenant to things corporeal: Coke Litt. 121 b.</p> <p>By the grant of a furnace, things will pass as incident thereto, without which, in the words of the maxim, the thing itself could not exist as a furnace ; but however convenient a railroad may be to connect the furnace with the river for supplying it with fuel, it is not pretended that that is the only way of furnishing it; and both the witnesses who testified on the subject admitted that it might be otherwise, though not so advantageously supplied. The question is not one of convenience. Where a right of way is to be inferred from a grant, the necessity for it must be absolute. If the party has at the time of the grant, or subsequently acquires, the ability to pass over his own land to the place granted, he cannot claim a way of necessity, however inconvenient the other mode of approach may be: Holmes v. Goring, 2.Bingh. 76.</p> <p>If the defendant can succeed, it would work great injustice to the plaintiff, as his lien was prior to that of Fallon on these lots, which were not included in the mortgage; and as the sale was clear of the mortgage, and the whole proceeds went to pay it, he was cut out from receiving any part of them. The offer of the mortgage in evidence was relevant to show this, as well as to show the identity in the description in the levy with that in the mortgage; and it was therefore error in the court to overrule it.</p> <p>As to the second reason of the court below. 1. The sheriff’s advertisement does not state that he offered the railroad for sale, or any part of it, but merely mentions the connection with it as one of the advantages of the property he was selling. 2. Silence can only estop when it would otherwise operate as a fraud. Who was defrauded here? Certainly no one but Fallon, the purchaser, under whom defendant claims. But Fallon was the plaintiff in the execution, and knew exactly what he had levied on, and knew that the sheriff could sell no more. He could not have been deceived as to what was the effect of the sale, nor is it pretended that he was deceived. How was the present plaintiff estopped ? He had no right to interfere, nor could the terms of the sheriff’s advertisement indicate to him that any claim to encroach on his rights could ensue from what the sheriff said: Hill v. Epley, 7 Casey 331.</p> <p>The sheriff’s advertisement could not of itself avail to extend the effect of the levy, even if it had stated that the railroad was offered as part of the property, and would pass to the purchaser. The description in the levy must govern all subsequent proceedings: Grubb v. Guilford, 4 Watts 244; Streaper v. Fisher, 1 Rawle 155. Much less can the indefinite introduction into it of a statement of the connection with this railroad as an advantage recommending it to bidders.</p> <p>The thing levied on was “ called and known as the Shawnee Iron Works.” Had there been no other description, either in the levy, advertisement, or sheriff’s deed, it would have been sufficient to convey everything attached to or which had been used as a part of the furnace, and without which the furnace would have been less valuable: Washburn on Easements 34; 1 S. & B. 169; 10 Id. 63; 3 Mason 280; 6 Cowen 677.</p> <p>That the railroad would pass as an appurtenant is fully shown in the following .authorities, even if it were not attached to the iron works: 4 Barr 553, 585; 1 Wright 503; 2 Watts 463. Defendants seem to concede that if the word “appurtenances*’ had been used, it would have passed. No such word was necessary. “Though the word ‘appurtenances’ were not used, the right to water passed, as an incident to the furnaces and mill:” 9 Harris 459.</p> <p>Even if necessary in a deed by the party, it would not be in a sheriff’s deed: Cope v. Grant, 7 Barr 491; Id. 491-2.</p> <p>“ When anything is granted, all the means to attain it, and all the fruits and effects of it, are granted also, and shall pass inclusive, together with the thing, by the grant of the thing itself, without the words cum pertinentiis or any such words:” Touchstone 89.</p> <p>To be appurtenant, a thing need not be indispensable. If it be a very great use or convenience, it is enough: McCullough v. State of Maryland, 4 Wheaton.</p> <p>The acquiescence of A. & J. Wright at the sheriff’s sale, showed that the advertisement truly described what was levied on. But if the levy had not included the railroad, and the advertisement offered it for sale in the presence and acquiescence of the then defendant and the present plaintiff, it would have passed: Buchanan v. Moore, 13 S. & R. 304.</p>

<p>Appeal from Common Pleas of Lancaster county.</p> <p>This was an appeal by Henry Houseal and M. M. Smith, from the decree of the court below, confirming the report of the auditor appointed to distribute the balance in the hands of John Kline and B. E. Hiestand, assignees for the benefit of creditors of A. H. & J. Schock. The said accountants were also assignees in trust for the individual creditors of Abraham .Schock, under a deed bearing even date with that of the firm. Abraham Schock, Henry Schock, and Jacob Schock, under the name of A. H. & J. Schock, were engaged in the lumber and coal trade at Marietta, Lancaster, and at a place called Glen Rock, in York county, Pennsylvania. They had also in Centre county, Pennsylvania, a saw-mill, and in connection with it carried on the business of a “ country store.” These partners are brothers, and Abraham, besides his connection with A. H. & J. Schock was — in partnership with another brother, John Schock, under the name of A. & J. Schock — engaged in making flour at a grist-mill some three miles above Marietta, and, on his own account individually, dealt in tobacco and other articles of country produce. The relations to each other of Abraham Schock and the two firms were proved to be of the most intimate character, and the affairs of each were much complicated with those of the others. Abraham, who appeared to have been the principal manager of the business of a.ll these parties, alleged that by reason of moneys advanced, liabilities assumed, and goods sold to them by him in his individual capacity, the partnership of A. H. & J. Schock became indebted to him in an amount somewhat exceeding $17,000. To this claim other creditors objected on the ground that a partner, or where he has become insolvent, his estate, cannot claim against the joint estate of the partnership, in competition with the joint creditors, or until the latter are paid in full.</p> <p>The auditor, for reasons given in his report, rejected the claim of Abraham Schock, and the court below (Hates, P. J.) confirmed the report, which was the error assigned by the appellants above named, who were individual creditors of Abraham Schock.</p> <p>This case presents a single question, which has been much agitated as well in the English courts of equity as in those of the several states, and does not yet appear to have there received a solution so satisfactory as to be consistently and resolutely adhered to by all the courts. It is this : Whether when several partners make an assignment of the firm assets for the benefit of the creditors of the firm, and one of the partners, being a large creditor of the firm on dealings carried on by him with the firm as a separate trader, also makes an assignment of his separate estate for his own creditors, the separate' creditors are entitled to have his estate credited with a dividend on the firm assets. The cases in which this question has been brought to the notice of the courts, are collated and commented on by Collyer on Partnership, book 4, c. 2, § 10, “on proof between estates,” §§ 990, 1006. The learned author sums up the part applicable to the case before us as follows : “ Upon the whole, therefore, the general principle to be gathered from these decisions is, that where one or more members of a firm carry on a distinct trade, proof will be admitted between the estate of the general and the particular firm, pari passu with the creditors, in all cases where the debt has arisen from goods furnished by one firm to the other, in a manner as if they had been utterly unconnected in trade, but that, except in the case of bankers, this rule will not be applicable where the debt has arisen only from money advanced by one firm to the other,” § 1004. This is the settled law in England on the subject, and the only question then is whether we have departed from it in Pennsylvania. The auditor and court below rely on the case of Babb v. Heed, 5 Rawle 151, as announcing a contrary doctrine; but it has not, in our judgment, the least tendency that way. It was not a contest between firm and separate creditors, but between firm creditors and a partner claiming the fund against them; that is, between a man and his own creditors. The only real question in the case was whether there was a partnership or not. We are not' able to'find any Pennsylvania authorities directly applicable to the case before us, but the grand principle which underlies the whole, and is the foundation as well of the general rule as of the exceptions which . have been stated, to wit, that the creditors have no equities, except such as they can work out through those of the individual partners against each other, has been frequently recognised by our courts. We need onty refer to the recent case of Backus v. Murphy, 8 Wright 397, and to the authorities cited by Judge Woodward in delivering the opinion of the court in that case, at p. 401. It is very clear that the partners of Abraham Schock would have no equity to prevent him from recovering from the firm the amount of its indebtedness to him, and the principle is therefore decisive of the case.</p> <p>The question presented by this case is truly submitted in the argument of appellants’ counsel. Simplified it is this : Can the .creditors of one insolvent partner prove the personal debt of that partner against the joint firm also insolvent? The auditor and the court below held that they could not, upon the general rule laid down in' Story on Part., § 890; Collyer on Part., § 990 ; Babb v. Reed, 5 Rawlo 151. The rule stated in these authorities is founded upon this principle : “ That the equities of the creditors, whether joint or separate, must be worked out through the medium of the partners ; and that it was a clear and well-established rule that the individual partner could not himself prove against the joint estate in competition with the creditors of the firm, who were in fact his own creditors, and thereby take part of'the fund to the prejudice of those who were not only creditors of the partnership, but of himself.” The exception to the general rule is to be found “in the case of a minor partnership constituted of persons who are members of a larger firm, and there are distinct dealings between houses of trade, and both firms become bankrupt.” All the cases in Collyer are of this character, and not the case of the creditors of one partner claiming against the joint fund. True, the author in summing up draws the conclusion cited in appellants’ argument; but to sustain him as to one partner, he has no support in the adjudicated cases other than in a dictum of Lord Eldon, in the case of Ex parte Sillitoe, 1 Glyn & Jam. 374, and is not sustained by his reference to Story on Part. § 394. Lord Eldon’s doctrine is questioned by Sir John Leach, in 2 Glyn & Jam. 127, and by a note in Collyer on Part, to § 1005, it appears that the court of review adhered to the opinion of Sir John Leach.</p> <p>The rights of creditors are worked out through the equities of the partners. A solvent partner has no equity which entitles him to claim against his insolvent firm. Their debt is his debt, and in case of insolvency, his creditors can have no other claim than that which he would be entitled to make. It is his joint liability which excludes him, and must exclude them. Story in § 394 lays down this doctrine, which determines the question as decided by the court below:—</p> <p>“If the firm consists of two persons only, and one carry on a separate trade, as they are both liable for the same joint debts, the solvent partner is not entitled to prove under the commission against his copartner a debt for goods sold by his distinct house to the firm, until the joint creditors have been satisfied. It would be otherwise in the case of a firm of A.,' B., C. & D. proving against the firm of A., B., 0. & E., for the former would not be liable for the joint debts of the latter firm.”</p> <p>It is this non-liability which permits the proof.</p>

<p>ERROR to the Common Pleas of Dauphin county.</p> <p>This was an action of assumpsit, brought May 28th 1860, by Benjamin Park against Andrew P. Wilson. The plaintiff declared on a draft, or bill, of which the following is a copy:—</p> <p>“Harrisburg, June 1st 1857.</p> <p>«53000.</p> <p>“ Six months after date, pay to the order of Henry Keller, at Girard Bank, Philadelphia, three thousand dollars, value received, and charge the same to account of</p> <p>“David R. Porter.</p> <p>To A. P. Wilson, Esq.,</p> <p>“ Huntingdon, Pa.”</p> <p>Endorsed. “ Pay to the order of the Mechanics’ Saving Bank.</p> <p>“Henry Keller.</p> <p>“Accepted, A. P. Wilson.”</p> <p>To which the defendant pleaded non assumpsit, and payment with leave, &c., and on the 27th of January 1863, filed the following plea in abatement, and special plea:—</p> <p>And for a further plea in this behalf, said defendant saith that the said plaintiff heretofore, to wit, on the 10th day of October, A. D. 1859, impleaded the said defendant in a certain plea in assumpsit, in the Circuit Court for the county of Dane, in the state of Wisconsin, to the damage of the plaintiff three thousand dollars, for the not performing the same identical promises and undertakings in the said declaration mentioned. And defendant further said, that said action and plea is still depending in said Circuit Court, which is a court of record, and has full jurisdiction of said action; and the parties thereto and said plaintiff doth still prosecute the same, and this the said defendant is ready to verify, by a duly attested exemplification of said record in said suit in said Circuit Court.</p> <p>And for a further plea in this behalf, the said Andrew P. Wilson, by leave of the court here for this purpose first had and obtained, says, that the said Benjamin Park ought not to have or maintain his aforesaid action thereof against him, because of any such draft or bill as that mentioned in the plaintiff’s declaration ; that if any such was drawn, it was drawn without any consideration therefor ; and if any such draft or bill was accepted by the said Andrew P. Wilson, the defendant, it was accepted for the accommodation of David R. Porter, the drawer thereof. That he, the said Andrew P. Wilson, was not, on the 1st day of June 1857, or at any time since, indebted to the amount of three thousand dollars, or in any amount whatever, to the said David R. Porter and Henry Keller, or to either of them. That if any such draft or bill as that mentioned in the plaintiff’s declaration, was discounted at the Mechanics’ Savings Bank, Harrisburg, it was discounted as accommodation paper, at a usurious rate of interest, and for the accommodation of David R. Porter, the drawer; and if any such draft or bill was protested for nonpayment; no notice was given to the said Andrew P. Wilson of protest. The said Mechanics’ Savings Bank, Harrisburg, after maturity of said alleged draft or bill, instituted a suit in this Court of Common Pleas of Dauphin county, Harrisburg, viz.: No. 88, April Term 1858, to recover the amount of said alleged draft or bill from the said David R. Porter; and afterwards, viz., on the 22d day of March 1858, at the county aforesaid, the said Mechanics’ Saving Bank, plaintiff in said suit, well knowing that the said alleged draft or bill was given without consideration, and was accommodation paper, accepted from David R. Porter, defendant in said suit, judgment for three thousand and fifty-six dollars, and granted and allowed the said David R. Porter, the defendant, a stay of execution on said judgment, for the period of one year from the 26th day of April, A. D. 1858. The said Andrew P. Wilson will show that the said David R. Porter, on the 22d day of March 1858, at Harrisburg, at the county aforesaid, was possessed of a large amount of tangible personal property, more than sufficient to pay and satisfy said judgment over and beyond any writs of execution in the hands of any constable or sheriff in said county, which said personal property was subject to be seized, taken, and levied on, on execution and satisfaction of the judgment of the said Mechanics’ Savings Bank. The said A. P. Wilson will further show that the said Benjamin Park, plaintiff, obtained an exemplification of the record of the judgment of the said Mechanics’ Savings Bank v. David R. Porter, No. 88, April Term 1858, in Dauphin County Common Pleas, and caused suit to be brought thereon between said parties, in Dane county, in the state of Wisconsin, and, on judgment had and obtained thereon in favour of the Mechanics’ Savings Bank against David R. Porter, writs of execution were thereupon issued, and the alleged interest of the said David R. Porter in certain lands and tenements in Dane county, in the state of Wisconsin, were seized and takeji in execution and sold in satisfaction of said judgment, to a great amount, viz., to the amount of fifteen hundred dollars.</p> <p>The said Andrew P. Wilson will further show that if the said alleged draft or bi'll came to the hands of the said Benjamin Park, it so came to his hands after it was overdue and dishon-oured, viz., on the 13th day of October, a. d. 1859, without endorsement, and without recourse to the then holder of said alleged draft or bill, he, the said Benjamin Park, averring that he took said draft or bill on the credit of David R. Porter, the drawer and party in interest.</p> <p>And he, the said Andrew P. Wilson, saith that he did not undertake or promise, in the manner and form of the said Benjamin Park hath' complained against him, and of this the said Andrew P. Wilson puts himself on .the country, &c.</p> <p>On the issue thus made up the parties went to trial.</p> <p>Same day the plaintiff moved to amend by adding the Mechanics’ Savings Bank as the legal plaintiff, so that the record shall stand, The Mechanics’ Savings Bank for the use of Benjamin Park, and filed a paper electing to proceed with this suit instead of that brought upon the same cause of action in the Circuit Court of Dane county, Wisconsin.</p> <p>The proof on trial showed that at the time of the acceptance of the draft by A. P. Wilson, David R. Porter executed and delivered to him a receipt as follows, in the handwriting of said H. Keller</p> <p>“Harrisburg, June 1st 1857.</p> <p>“ Received of A. P. Wilson his acceptance of my draft, favour Henry Keller, at six months from this date, for three thousand dollars, payable at the Girard Bank, Philadelphia, which acceptance is to be paid by me at maturity, it being for my accommodation, and against the payment of which I hereby indemnify the said Wilson.</p> <p>“David R. Porter.”</p> <p>That the Mechanics’ Savings Bank instituted suit on the said recited draft against David R. Porter, in the Common Pleas of Dauphin county, to April Term 1858, No. 88, on 9th March 1858, and on same day entered rule of reference; and that on the 23d Mkrch 1858, defendant appeared and confessed judgment in favour of said bank therein for the sum of $3056, with interest from date, and with stay of execution, for one year from the 26th day of April, A. D. 1858; and that after expiration of the stay given by the said judgment accepted by the bank, fi. fa. issued to August Term 1859, No. 30, on which fi. fa. nothing was realized.</p> <p>That at the .time the said judgment against Porter was accepted by the bank, with stay, said David R. Porter was the owner of large.personal property beyond amount of said judgment, and had at time of this judgment extensive real estate, hut encumbered by prior judgments.</p> <p>The Mechanics’ Savings Bank held the bill or draft until on or about the 10th day of October, A. d. 1859, when the bank passed their claim to Benjamin Park, without endorsement, and without recourse, who brought this suit in his own name, as above stated.</p> <p>On 29th October, a. d. 1860, B. Park, plaintiff, entered rule of reference; and on December 3d 1860, arbitrators awarded for the plaintiff against A. P. Wilson, defendant, the sum of $3541.43, from which award defendant appealed on 22d December 1860.</p> <p>On the 10th day of October, A. d. 1859, the Mechanics’ Savings Bank instituted proceedings against A. P. Wilson, on said draft or acceptance, in the Circuit Court of Dane county, Wisconsin, by foreign attachment, in which foreign attachment a verdict of a jury was taken for whole amount of said draft, on the 13th day of November, A. D. 1860, which verdict was subsequently set aside, proceedings opened, and defendant let into a defence. This proceeding and action was pending in said Circuit Court at the time of the institution and trial of this suit.</p> <p>Foreign attachment on the same draft and another, had also on the 8th day of September, A. D. 1858, been instituted in the Circuit Court of Dane county, Wisconsin, against David R. Porter, by the Mechanics’ Savings Bank, in which a recovery had been had, and Porter’s alleged title to land sold to Benjamin Park.</p> <p>It was alleged on the trial, on part of defendant, that Wilson was a mere accommodation acceptor, without consideration, and inasmuch as Park, the plaintiff, had not taken the claim or draft in the usual course of commercial business, but in a trade, and not for one year and ten months, after maturity of the protested draft, he took it as a dishonoured paper, which had long before lost its commercial character; that there was at least sufficient to put Park on inquiry; that his manner of taking the claim, without recourse or endorsement, was evidence at least to go to the jury, as to whether he did not take it on faith of Porter’s responsibility.; and that the parties did not treat the draft as commercial paper; that Park’s application in the Circuit Court of Dane county, Wisconsin, to be relieved from his bid at sheriff’s sale for the alleged interest of Porter in land there, ought to be submitted as evidence of this; and that he dealt entirely on the faith of Porter’s responsibility.</p> <p>It was contended also that the bank had full opportunity to recover the money out of Porter’s large personal property, and lost it by giving Porter voluntarily stay of execution, to which, owing to encumbrances, he was not without bail entitled.</p> <p>Defendant also contended that, after award of arbitrators and first trial, Park had no legal right, as asked by his proposed amendment, to tack himself on to the alleged original rights of the bank as plaintiff, and gained nothing thereby, especially as subsequent to 11th October 1859, said bank had no right, no claim whatever, such amendment having been objected to by defendant, and exception sealed.</p> <p>It was also contended on part of defendant that in any event he was entitled to a credit for $1500, or about $1200, as stated and admitted by the letter of B. Park to defendant, dated Hop-bottom, December 24th 1861.</p> <p>January 28th 1868, there was a verdict in favour of the plaintiff for $8306.64, followed by a motion for a new trial. February 12th 1863, the plaintiff’s amendment was allowed by the court, and a new trial granted same day. March 24th 1863, there was a verdict rendered in favour of plaintiff for $3665.98, on which judgment was entered on the amended declaration.</p> <p>This writ was then sued out by defendant, who averred that the judgment should be reversed.</p> <p>1. Because it appeared from the evidence in the cause that the draft came into the hands of Park, the real plaintiff, after it had arrived at maturity, and he was not an innocent holder thereof in the regular course of business, but took it subject to all the equitable defence of the surety, Wilson.</p> <p>2. Because the court erred in charging the jury that, under the facts disclosed by the evidence, the plaintiff was entitled to recover in this action.</p> <p>3. That the court erred in permitting the amendment of the record against the objection of the defendant, making the Mechanics’ Savings Bank the legal plaintiff for use of Benjamin Park after an award of arbitrators, and after the first verdict, and that without imposing the costs of the former proceedings upon the plaintiff, or requiring proof.</p> <p>4. The court erred in their instruction to the jury as follows: “We are still of the opinion that the bank is the proper legal party, and that the action must be brought in its name. Park is properly marked as the cestui que use. That objection to the form of action will not avail.”</p> <p>5. The court erred in instructing the jury as follows: “ This paper appears to have been received by tbe bank in the usual course of business, and regularly discounted. There is no evidence that the bank ever had notice, while it held the draft, that it was any other than business paper, nor is there evidence of any notice to Park that Wilson, the acceptor, was not the principal debtor.”</p> <p>6. The court erred in charging the jury as follows: “ It is further contended that, as Wilson was a mere accommodation acceptor, he stood in the light of a surety, and was discharged by the bank giving a longer stay of execution to Porter than was allowed by law. Two sufficient answers exist to this objection. First, the fact does not appear to be as supposed. The suit was brought to April Term 1858, and the eessat is for one year from the first day of April Term, precisely the stay allowed by the 3d section of the Act of 16th April 1836. And, second, the bank had no reason to suppose that Porter was the principal debtor, but could properly consider him a surety, and Wilson the principal. If, therefore, indulgence were given to Porter, Wilson could not lawfully complain. * * * * There is no doubt now that Mr. Wilson was a surety; but that does not appear to have been known until shown on the trial. No illegal indulgence or want of proper diligence has been proved, and the objection is unavailing.”</p> <p>7. The court erred in refusing to instruct the jury that the suit commenced by the Mechanics’ Savings Bank, in the Dane Circuit Court of Wisconsin, on the 10th day of October 1859, on the same draft and pending at the time of the trial, was a bar to the plaintiff’s recovery in this suit, commenced on the 28th day of May, A. d. 1860, and in instructing the jury that “ we know of nothing to protect a claimant from issuing a foreign attachment in one state, attaching property and holding to it, and at the same time carrying on a personal action against his debtor in another state.”</p> <p>8. The court erred in refusing to instruct the jury that by the admission of Benjamin Park, contained in his letter to defendant, dated December 24th 1861, the defendant was entitled to a credit of “ something less than $1200,” and that if plaintiff was entitled to recover, the verdict should be for the amount of the draft, after deducting “ something less than $1200.”</p> <p>9. The court erred in rejecting the testimony of Henry Keller, offered after the draft had been impugned aliunde, by the testimony of R. B. Petrikin.</p>

<p>ERROR to the Common Pleas of Centre county.</p> <p>This was an action of ejectment brought by David Gratz against John H. Beates, James Irwin, and Augustus Hyman, for a tract of land in Burnside township, surveyed in 1792, on a warrant dated July 3d 1792, in the name of Elizabeth Harris, containing 433 acres and 153 perches. Before the trial of the cause the plaintiff died, and his devisees, Louisa and Elizabeth Gratz, were substituted.</p> <p>Certified connected draft of 37 tracts, dated April 23d 1853, including the Elizabeth Harris, for the purpose of showing its connection with the contiguous tracts. To which the counsel for the plaintiff objected, because the certificate did not state the number of tracts embraced by the draft, but certified to a-number of tracts; that the number was now fixed in with pen'cil, and that there are other pencil marks upon the draft. The certificate did not assert that the drafts were carefully compared with the original.</p> <p>Plaintiffs then offered order made by the board of property, October 8th 1839, on application of Jacob Gratz, to resurvey the William Harris, John Harris, Benjamin Harris, Samuel Harris, Sr., and Samuel Harris, Jr. tracts, for the purpose of correcting the courses, which must have been reversed.</p> <p>The court overruled the objection; to which the counsel for the plaintiff excepted.</p> <p>The plaintiffs claimed under the survey to Elizabeth Harris, and the defendants under a survey of a later date, in the name of John S. Burst, and a main question was whether the first survey was located on the same ground as the last. This was averred by the plaintiffs and denied by the defendants.</p> <p>On the trial, after the plaintiffs had closed their case, the defendants, as part of their defence, offered in evidence deed from Jacob Gratz to John Bowes, dated June 11th 1846, for all that certain tract of land situate in Snow Shoe township, beginning at a white pine; thence by land of Benjamin Harris, south 89° east, 296 perches, to white pine; thence by surveyed land north Io east, 248 perches, to a stone by a pine; thence by land of Samuel Harris, Jr., north 89° west, 296 perches, to a post by white oak; thence by land of Elizabeth Harris and other lands, south Io west, 348 perches, to the place of beginning. Warrant to Samuel Harris, Sr., 3d July 1792. Order of board of property, 8th October 1839, in connection with the declaration of Jacob Gratz, for the purpose of showing that the true location of the Elizabeth Harris tract was as claimed by defendants.</p> <p>The counsel for the plaintiffs objected on the ground that it is not evidence to affect the present plaintiffs. The court overruled the objection; to which the counsel for the plaintiffs excepted.</p> <p>Defendants also offered to prove by Joseph E. Quay and others, that Mr. Jacob Gratz stated to him, while he was the owner of the Elizabeth Harris, at various times, that he was satisfied the survey of Elizabeth Harris was laid on the same land as Robert Stewart; and that the location as made by him (witness) was correct; and that the location of the Samuel Harris, Sr., and Samuel Harris, Jr., as made by witness was correct; and that when witness, as agent for David Gratz, had contracted to sell part of the Robert Stewart tract, Jacob Gratz positively objected to the sale upon the ground that he, as the owner of Elizabeth Harris, owned the land (his warrant being the oldest) covered by the Robert Stewart warrant; and that he never would agree to the sale, or allow the purchasers to hold it, unless they bought his Elizabeth Harris tract; and that, in consequence of his objections, witness cancelled the agreements for sale of same, not wishing to get the purchasers into any trouble.</p> <p>That after this took place, David Gratz purchased from Jacob and Joseph Gratz the Elizabeth Harris for a small sum; and that both Jacob and David Gratz informed witness that they had settled the matter, and that witness could proceed and sell the land covered by the Elizabeth Harris and Robert Stewart, as David Gratz then owned both warrants; and that he did so sell it afterwards to John Bowes and John Brown, as agent for David Gratz and others. That after the location of the Elizabeth Harris was ascertained by witness to be on the Robert Stewart, he (witness) proposed to Jacob Gratz to take out a warrant, in connection with him, for the land now covered by the John S. Eurst warrant; and that Jacob Gratz declined, alleging that there might be a survey of Aaron Levy that would cover it; and that after David Gratz purchased the Elizabeth Harris, witness made same proposition to him, and he declined; also alleging that he wanted no more land, that he had enough land in Snow Shoe to trouble him; and that after this, witness advised Mr. Eurst to take his warrant. Defendants will also prove that since the survey of John S. Eurst, large and valuable improvements have been made by those claiming under it.</p> <p>To which plaintiffs’ counsel objected: — 1. Because the alienees of neither Jacob Gratz nor David Gratz should be prejudiced by admissions, induced by a mislocation of tracts of land held by them respectively. Where the tract in the name of Elizabeth Harris is located, being the question in issue in this case, is to be ascertained by the marks upon the ground, the calls for adjoiners, natural monuments, &c.; and being a mixed question of law and fact, the declarations of the original holders, whilst admissible as to the precise situations of corners, &c., leading to •a conclusion as to location, are not admissible as to the location itself. 2. That the articles of agreement and deeds evidencing the several sales and conveyances, are better evidence than the declarations of parties in relation thereto.</p> <p>But the evidence was received; to which the counsel for the plaintiffs excepted.</p> <p>Defendants further offered to prove by the witness that Jacob Gratz, while the owner of the Elizabeth Harris, had adopted the ■location of the Samuel Harris, Jr., and Samuel Harris, Sr., surveys, as made by Mr. Quay, and had told witness that the lines and courses, as represented by Quay’s location, were correct. That he sold the said tract, in accordance with the said location, to persons now in possession, who made valuable improvements thereon.</p> <p>• To which plaintiffs’ counsel objected, as irrelevant to the issue trying: — 1. Because the offer relates to two tracts of land, the title to neither of which is in dispute in this case, and both of which were included in the order for a resurvey in evidence; and 2. Because the sales were in writing; and cannot therefore be proved by parol.</p> <p>The evidence was received for the purpose of showing the boundaries and location, but not title; to which the counsel for plaintiffs excepted. ■</p> <p>During the examination of James Gilliland, one of defendants’ witnesses, he spoke of some pieces of a draft which he had received from Mr. Gratz, a former owner of the Harris tract, as the draft of his lands, and which exhibited tracts of land in the names of John, Benjamin, and Elizabeth Harris, and of Samuel Harris and Samuel Harris, Jr., but which, when given to him, included, beside the Harris lands, the surveys of Lucas, Levy, Holt, Hyneman, and the Snow Shoe surveys. This was offered in evidence, but was objected to because it was only part of the paper handed to the witness by Gratz; but the court overruled the objection, and admitted the paper in evidence, to which plaintiffs excepted.</p> <p>Defendants then offered to prove by the witness that large and valuable improvements had been made on the John S. Furst survey, by the purchasers of that title, since they acquired it; to which plaintiffs’ counsel objected, first, because it was wholly irrelevant to the issue trying; and, second, because in no possible view of the cause can the offer be evidence, unless the property is enhanced in value by the improvements not included in the offer. But the evidence was received, to which the counsel for plaintiffs excepted.</p> <p>The plaintiffs subsequently offered in evidence a deed, Joseph Gratz, Jacob Gratz, and Benjamin Gratz and wife, by their attorney, &c., dated May 11th 1853, to Robert Lipton, for a certain tract of land situate in the townships of Morris and Snow Shoe, in the counties of Clearfield and Centre. Beginning at a black oak sapling, thence by land of Francis Guerney, west 320 perches to a q. ash; thence by land of John Friend, north 230 perches, to a maple; thence by land of Elizabeth Harris, east 330 perches to a white oak; thence by land of Benjamin Harris, south 230 perches, to the place of beginning. Containing 433 acres and 153 perches. Warrant, 3d August 1792; to which the counsel for the defendants objected, and the court sustained the objection, and rejected it, to which the counsel for the plaintiffs excepted.</p> <p>These were all the errors assigned here as to the admission or rejection of testimony.</p> <p>The counsel for the plaintiffs submitted several points, on which the court were requested to charge the jury. The points were as follows; and the answer of the court thereto, together with the following portions of the general charge, constituted the remaining errors, which were assigned by the plaintiff in error.</p> <p>The 1st point submitted in writing was as follows, to wit: “ That the location of a tract of land which is one of a body of surveys calling for each other, may be determined by fixing any one of the body, whether the leading survey or another, and then laying the rest as returned into the land office.”</p> <p>“ Answer. — The counsel for the plaintiffs has submitted to us seven written points, upon which he has requested us to charge you. The first we affirm as true. It may be so in many cases, but is not necessarily so in all.”</p> <p>The 2d point was as follows, to wit: “ Where, in surveys of about the same age, the younger calls for the older, and the line of the younger is found marked on the ground, the surveys must be taken to adjoin each other, unless the lines of the older surveys are also found marked upon the ground; and this, even though the length of the lines of the older surveys should be greatly extended beyond the official distance, and the quantity of acres in the survey be greatly increased beyond the official quantity; and that this principle of law applies with greater force when the younger and the older surveys were made and returned by the same deputy surveyor.”</p> <p>“Answer. — We decline to charge you as requested in the 2d point.”</p> <p>The 3d, 4th, and 5th points submitted in writing, and in the answer thereto jointly, were as follows, to wit:</p> <p>“ 3. That as the location of John Nicholson is agreed upon by plaintiffs and defendants, the dead white oak being the northeastern corner thereof; as the location of Walter Stewart, Jr., is also agreed upon by plaintiffs and defendants — the chestnut stump being the south-eastern corner thereof; and as John Nicholson calls for Elizabeth Harris on the north, and for Benjamin Harris on the east; and Benjamin Harris calls for Samuel Harris, Sr., on the north, and Samuel Harris, Sr., calls for Samuel Harris, Jr., on the north, and Elizabeth Harris on the west and Samuel Harris, Jr., call for Elizabeth Harris and vacant on the west, and vacant on the north, and John Barry calls for the aforesaid Walter Stewart, Jr., on the west, and Robert Stewart calls for Walter Stewart, Jr., on the north, John Barry and Samuel Harris, Jr., on the east, and for Elizabeth Harris on the south, it follows that Elizabeth Harris would seem to lie between Robert Stewart and John Nicholson, as located by Hoffman and Trcziy-ulny, and not upon the top of Robert Stewart as located by Quay; and, that nothing but actual marks upon the ground, and natural monuments not susceptible of explanation upon any other hypothesis, could justify the jury in locating Elizabeth Harris upon Robert Stewart, leaving the land in dispute vacant and unappropriated until applied for under the Furst warrant.</p> <p>“4. That as Walter Stewart calls for a chestnut at its southeastern corner, Robert Stewart for a chestnut at its north-eastern corner, and John Barry for a chestnut at its south-western corner, and Robert Stewart’s eastern line is represented as intersected by the southern line of John Barry, at about the distance from the corner of Walter Stewart, Jr., and Robert Stewart, at which Quay found the chestnut — the two chestnut corners spoken of by him as corners of Elizabeth Harris and Samuel Harris, Sr., may be accounted for as corners of these surveys as located by Hoffman and Treziyulny, instead of the corners of Elizabeth Harris and Samuel Harris, as located by Quay; and thus be rendered entirely consistent with the calls of the several surveys for ad-joiners referred to in the 3d point.</p> <p>“ 5. That as Samuel Harris, Jr., calls for a maple at the northwestern corner, the maple corner spoken of by Quay as the northwestern corner of John Barry, and south-western corner of John Vaughn, may be accounted for as the corner of this survey as located by Hoffman and Treziyulny, instead of the corner of Barry and Vaughn, as located by Quay; and thus be rendered entirely consistent with the calls of the several surveys for adjoiners referred to in the 3d point.”</p> <p>“Answer. — In answer to the 3d, 4th, and 5th points, we say: If the facts averred in each point were all the facts proved in the case, the conclusion there arrived at would be correct; but inasmuch as there is other evidence in the case, appearing to contradict some of these calls, it is a question of fact for you to determine the location under the whole evidence, and the rules ■we have given you.”</p> <p>The 6th point was as follows, to wit: “ That the Elizabeth Harris survey, being returned as situate upon the waters of the Moshannon creek, should be so located, unless this call should be found clearly inconsistent with marks upon the ground, or other superior calls.”</p> <p>“ Answer. — The 6th point we have already answered in our general charge, viz.: The official survey returns that the Elizabeth Harris is located upon the waters of the Moshannon creek. The location of that creek, then, is a fact for you to consider in ascertaining the location of the warrant; yet it does not necessarily require the warrant to be so located as to have that creek actually flow through the tract. So far as that only is concerned, it might be well located anywhere within the general scope or district of country watered by that stream, or from which it flows.”</p> <p>The 7th point was as follows, to wit: “That the call of John Nicholson for its north-eastern corner being a white oak, and the call of Samuel Harris, Sr., for its south-western corner being a white oak, and a white oak corner marked on four sides, north, south, east, and west, admitted to be the corner of John Nicholson, it must also be taken to be the corner of Samuel Harris, Sr.; and that the line found well marked upon the ground, counting to the date of the survey running from it and dividing Samuel Harris, Sr., and Benjamin Harris, -would seem to establish it as the south-western corner of Samuel Harris, Sr., beyond controversy.</p> <p>“Answer. — The 7th point we affirm. It would so seem; but it does not conclude you from determining otherwise, if the whole evidence satisfies you that it is not the true south-western corner of the Samuel Harris, Sr., tract.”</p> <p>In the general charge the court said: “ The plaintiffs have given in evidence a connected certified draft, showing the location of the Elizabeth Harris warrant to be such as to cover the land in question. The defendants have given in evidence connected certified drafts showing that it does not cover the land in question. Official drafts, certified singly, have also been given in evidence; some of which call for different adjoiners than the connected surveys. Now, where the official surveys certified singly, disagree with the connected surveys as to adjoiners, the single surveys are entitled to greater weight in ascertaining the true location of the warrant in question.”</p> <p>“It appears from the evidence that the Elizabeth Harris was one of several warrants issued on the same day; and that the general block, of which it formed a part, was located between the river and older surveys, called ‘ Snow Shoe Surveys.’ The location of the warrants at each end of the block is agreed upon by the parties.</p> <p>“ They disagree as to the location of some of the intermediate ones, including the Elizabeth Harris. The land lying between the surveys, the location of which is agreed upon, is insufficient to locate all the warrants alleged to lie there, of the size and form shown by the official drafts. The plaintiffs seek to locate the Elizabeth Harris by contracting its width, and also the width of several other tracts.</p> <p>“ The defendants seek to show that it was laid upon the same land covered by another survey. The plaintiffs wmuld make the requisite number of tracts, but lessen the area of each. The defendants make each tract of sufficient area, but lessen the number. No marks of the original lines of the Elizabeth Harris survey, as applicable to either location exclusively, are now found upon the ground. In either location the one line would be a line of the survey. The plaintiffs locate on one side of that line, the defendants on the other side.</p> <p>“ If the whole evidence fails to satisfy you that the Elizabeth Harris warrant was located upon the land in question, jour verdict should be in favour of the defendants. In that case it is not necessary to consider the other question raised in the case. But if the evidence satisfies you that the land is covered by that warrant as located, you then pass to the consideration of the facts upon which the defendants seek to interpose an equitable estoppel against the plaintiffs’ right to recover.</p> <p>“ To estop the plaintiffs, if they were otherwise entitled to recover the land, the evidence must satisfy you that Jacob Gratz, either by his silence, with a full knowledge of his rights, induced Quay, under whom the defendants claim, to believe that the land in question was vacant, and thereby encouraged him to take out a warrant for it, and have it surveyed, or else by his positive acts or declarations, without intending any actual fraud, induced the same action on the part of Quay. The burden of proof to establish the estoppel is cast upon the defendants. You recollect the circumstances under which the acts and declarations of Gratz occurred, as testified to by Quay. Quay was the surveyor. Consider whether or not the action of Gratz was caused by the conduct of Quay. It appears to the court that the whole evidence upon the point of estoppel is too weak to make out the necessary facts; yet we do not intend by this remark to prevent your finding otherwise, if the evidence, under the rules we have laid down, leads you to a different conclusion.”</p> <p>Under these rulings and instructions there was a verdict and judgment for the defendants. Whereupon the plaintiffs sued out this writ, and assigned for error the ruling of the court below, on the admission and rejection of the evidence above mentioned, the answers given to the points submitted as above, and that portion of the general charge above given.</p>

<p>ERROR to the Common Pleas of Dauphin county.</p> <p>This was an action of debt by Thomas E. Franklin, for the use of the Commonwealth of Pennsylvania, against John W. Hammond, Augustus 0. Hiester, and Wells Coverly, on a joint and several bond made by the defendants, in which the following case was stated for the opinion of the court:—</p> <p>The parties, plaintiff and defendants, Wells Coverly and Augustus 0. Hiester, do hereby agree that the following facts be stated for the opinion of the court, with leave to either party to sue out a writ of error from the Supreme Court, without oath or bail, viz :</p> <p>On the 9th day of May, A. d. 1855, Eli Slifer, state treasurer of Pennsylvania, in pursuance of alleged authority vested in him by the 33d section of an act entitled “ An Act to reduce the state debt, &c.,” approved 29th April 1844, appointed, in writing, Thomas E. Franklin, attorney-general of Pennsylvania, his true and lawful attorney or agent to discover and bring to settlement any and all corporations that were then, or might thereafter be, in default to the Commonwealth of Pennsylvania, on account of the non-payment of their dues; of which the following is a copy:—</p> <p>“ Treasury Office of Pennsylvania, 1 “ Harrisburg, May 9th 1855,</p> <p>“ Be it known, that in pursuance of authority vested in me by the 33d section of the act entitled ‘ An Act to reduce the state debt,’ &e., approved the 29th day of April 1844, I have this day appointed the Hon. Thomas E. Franklin, attorney-general of Pennsylvania, my true and lawful attorney or agent, to discover and bring to settlement any and all corporations that are now or that may hereafter be in default to the Commonwealth of Pennsylvania, on account of the non-payment of their dues, and to adopt such measures in the premises as to him may seem best calculated to carry out the intention of the authority hereby conferred; subject, however, in all cases where an amicable adjustment of the matter in question cannot be had, to such further proceedings as by me may be deemed proper to be instituted. And as compensation for the services of the said attorney or agent, he shall be entitled to receive, out of the funds thus secured to the Commonwealth, such per centage or commission as is now allowed by law in such cases made and provided.</p> <p>“Eli Sheer, State Treasurer.”</p> <p>On the 12th day of May, A. d. 1855, in pursuance of authority contained in above stated appointment, Thomas E. Franklin appointed and authorized in writing Dr. J. W. Hammond, to adjust and settle any and all accounts and claims contemplated therein; of which appointment the following is a copy:—</p> <p>“ Attorney-General’s Office, j “ Lancaster, May 12th 1855 J</p> <p>“In pursuance of the authority conferred on me by the within commission, I do hereby appoint and authorize Dr. J. W. Hammond, of Harrisburg, to examine, adjust, and settle any and all accounts and claims contemplated therein, and to act for me in the premises fully and effectually. The said Hammond having given bond, approved by me, for the faithful performance of the duties hereby assigned him.</p> <p>“ Thomas E. Franklin, Attorney-General.”</p> <p>On the 12th day of May, A. d. 1855, John W. Hammond, with two sureties, to wit, Augustus O. Hiester and Wells Coverly, gave a bond signed by said three parties, payable to Thomas É. Franklin, his heirs, executors, administrators, and assigns, in the sum of $5000, conditioned for the faithful performance of the duties and service committed to the said Hammond, and which was duly assigned by Thomas E. Franklin to the Commonwealth before the passage of the Act of the 17th day of April 1858. The following is a copy of the bond:—</p> <p>“ Know all men by these presents, that we, John W. Hammond, A. 0. Hiester, and Wells Ooverly, are held and firmly bound to Thomas E. Franklin, in the sum of $5000, to be paid to the said Thomas E. Franklin, his heirs, executors, administrators, and assigns ; to which payment we bind ourselves, jointly and severally, our and each of our heirs, executors, administrators, and every of them, firmly by these presents. Sealed with our seals, dated the 12th day of May, A. D. 1855.</p> <p>“ Whereas, the Hon. Eli Slifer, state treasurer of Pennsylvania, has appointed the said Thomas E. Franklin his attorney to discover and bring to settlement such corporations as are now or may hereafter be in default to the Commonwealth on account of the non-payment of their dues, and to require and enforce payment thereof; and the said Thomas E. Franklin has deputed the said John W. Hammond to perform the said service in his behalf. Now the condition of this obligation is such, that if the above bounden John W. Hammond shall faithfully perform the duties and service so committed to him, and shall truly account for and pay over all moneys which may be received by him by virtue thereof, then this obligation to be void and of no effect, otherwise to be and remain in full force and virtue.</p> <p>“JohN W. Hammond, [seal.]</p> <p>“A. O. Hiester, [seal.]</p> <p>“Wells Coverly, [seal.]</p> <p>“ Sealed and delivered in the presence of</p> <p>“A. W. Benedict,</p> <p>“L. A. Harris.”</p> <p>“ For a valuable consideration to 'me in hand paid, I do hereby assign, transfer, and set over to the Commonwealth the within bond, and do hereby authorize the said Commonwealth to collect the same in my name for her use. In witness whereof I have hereunto set my hand and seal, this 16th day of April 1858.</p> <p>“ Thomas E. Franklin, [seal.]”</p> <p>On the 17th day of April 1858, the following law was passed:—</p> <p>“ That the auditor-general and state treasurer be and they are hereby authorized and required to adjust and settle the accounts of John W. Hammond, as agent of the Commonwealth in collecting corporation taxes, charging him with all moneys received by him from corporations for taxes due the Commonwealth, and allowing him credit for commissions thereon, at the usual rates allowed in such cases; they shall also credit the said corporations on their accounts, with the amounts respectively paid by them, and no charge shall be made therefor against any of the former state treasurers or other officers of the Commonwealth, except so far as the same shall have been actually received by them: Provided, That nothing herein contained shall be so construed as to exempt the sureties of the said John W. Hammond from any liability now existingPamph. Laws 1858, p. 329.</p> <p>Under this law an' account was settled by the auditor-general between John W. Hammond and the Commonwealth of Pennsylvania, pro ut said account. By which1 account it appears that said John W. Hammond is now indebted for moneys collected by him under the aforesaid appointment, in a sum greater than the amount of the bond upon which this suit is brought.</p> <p>Ephraim Banks' was auditor-general' of Pennsylvania from May 1854 until,May 1857, and during this time declined recog-nising,said John W. Hammond’s aforesaid appointment, or settling any account with him, alleging that there was no legal authority for his appointment.</p> <p>Now if the court shall be of opinion that the said sureties, Wells Coverly and, Augustus O. Hiester, are bound in law or equity to pay said bond in suit to the Commonwealth of Pennsylvania', then judgment shall be rendered for' the plaintiff for the amount of the same, and otherwise judgment to be rendered for the defendants.</p> <p>It is agreed that the certificate of the auditor-general, appended to the account hereto annexed, shall be taken as part of the case stated.</p> <p>The court below (PEARSON, J.) held that the power of attorney did not confer authority to receive money, and that the defendants were not liable upon their bond, and therefore entered judgment for the defendants; which was the error assigned by the plaintiff here.</p>

<p>Springs of water. — Injury to by mining adjoining lands discussed.— Rights of adjoining owners to subterranean streams.</p> <p>1. An owner of land, who, in mining iron ore upon it, drains water from land of an adjoining owner, thereby destroying a spring upon it, is not liable in damages therefor, if there be no evidence of malice or negligence.</p> <p>2. A landowner may not negligently or maliciously divert even an unknown subterranean stream, to the damage of a lower proprietor; but he may drain, mine, or quarry, though in so doing he interferes with the flow of water in hidden, unknown, underground channels.</p>

<p>Validity of voluntary judgment by husband in favour of wife. — Evidence proper on feigned issue. — Receipt of wife’s money by husband, effect of. — Interest, when due on money so received.</p> <p>1. In an issue to ascertain the validity of two judgments confessed in 1860, by a husband to a trustee for his wife, the fact that the husband had, in 1855, shortly after the last payment had been made for her share of her father’s estate, given a promissory note to another as trustee for her, for an amount equal to the larger judgment, was evidence that he had received her money, sufficient to justify the submission to the jury of the question whether the money came into his hands; and the note was also admissible as evidence for that purpose.</p> <p>2. Though the father died before the Married Women’s Act of 1848 wai passed, yet where no money was received from his estate until afterwards, the husband’s receipt of it was held not such a reduction of the wife’s chose i in action for his use as would render his note therefor void; for a contrary intention was evidenced by the note given by him for tho money received, and he was under no obligation to use his marital rights therein for the benefit of his creditors; nor had he any vested interest in her choses in action before the act, which was taken away by it.</p> <p>3. The share due to a wife from her father’s estate, paid to her after the passage of the Act of 1848, accrues to her under it, and entitles her to the benefit of its provisions, though tho father had died before it became a law.</p> <p>4. Hence the instruction to the jury, that “ where a husband receives his wife’s money, the presumption of iaw is that he receives it for her, although the right accrued to the wife previous to the passage of the Act of 1848, but was not reduced into possession before by the husband,” was not error.</p> <p>5. If the money was received as that of the wife, she was entitled to interest tnereon: hence, where there was evidence that his indebtedness, with interest, exceeded tho amount of the larger judgment at the time it was given, 'without including an advancement made by her father in his lifetime (which it was not shown that he had received), it was not error to instruct the jury that if the advancement was not included in the larger judgment, that difficulty could not arise in respect to it; nor was it error to instruct them that they might find one judgment good and the other bad, though both were given at the same time.</p>

<p>ERROR to the Common Pleas of Lancaster county.</p> <p>This was an issue awarded by the Common Pleas to try the validity of a judgment confessed by Adam Rudy to Elam Moyer, in trust for bis wife Harriet Rudy, in which Elam Moyer, for the use of Harriet Rudy, was plaintiff, and Peter Grabill, 0. L. Musselman, George Bard, A. S. Bard, Daniel Rife, Philip Sheaffer, Christian Hunshberger, Isaac Burkholder, and Joel Wenger (judgment-creditors of Adam Rudy), were defendants.</p> <p>On the trial, the plaintiff gave in evidence a judgment-bond as above stated for $10,717, dated May 15th 1861, payable April 1st 1862, and claimed interest from the maturity of the bond.</p> <p>It was proved by plaintiff and not denied by the defendants, that Jacob Eby, the father of Harriet Rudy, died intestate on 30th April 185b, leaving a widow and seven children, of whom Harriet, the plaintiff, was one. He died seised of real estate amounting to $35,583.62J. That the property was accepted on 18th January 1855, payable on the 1st April 1856, with interest from 18th June 1856. Widow’s interest remaining charged, $11,861, leaving for distribution $23,722.42; each share $3388.91. Interest from 18th January 1855 to April 1st 1856, $159,56. Aggregate, $3548.17. That of the personal estate the balance on administrators’ account, confirmed on 6th June 1856, was $42,406.55. Widow’s share, $14,135.51, leaving balance on account among children, $28,271.04, advancements added. Whole amount for distribution, with advancements added, $36,432.13, one-seventh — $5204.59. Deduct Harriet Rudy’s advancement, $950.10 — $4254.49. Making total of Harriet Rudy’s interest, in her father’s estate, exclusive of advancements, $7802.66. That Daniel S. Eby, brother of Harriet, died in 1858, and that Abraham Eby and A. G. Groff, his administrators, as Harriet Rudy’s interest in her brother’s estate, paid to her April 6th 1859, $1115.50. That release of Harriet Rudy to her brother for real estate, dated April 1st 1856, was recorded May 5th 1856. That release of Harriet Rudy to administrators of her father’s estate, dated 21st July 1856, was recorded September 2d 1856. That release of the real estate was executed by Harriet Rudy and Adam Rudy, her husband; and the release as to brother’s estate was signed by Harriet only.</p> <p>The plaintiff then called the person who drew the judgment-bond, who testified that the consideration of the bond was two promissory notes from Adam Rudy to Harriet Rudy, one dated August 1st 1856, for $7638.86, payable one year after date, with interest at 5 per cent., and the other dated April 6th 1859, for $1115, payable in one year at 5 per cent., which notes were executed at the time they bore date, and were delivered up by Mrs. Rudy when the bond was executed. That the first note was drawn at Mr. Rudy’s request, who stated that he had borrowed or was about to borrow from his wife, the money she had received from her father’s estate, and desired to secure it to her without giving judgment. That this note was drawn up and handed to Mr. Rudy, who took it away with him. That when the second note was drawn, the money was paid over.</p> <p>The plaintiff then called Abraham G. Groff, and proposed to prove that in a conversation had with Adam Rudy, in the spring of 1857, with regard to Mrs. Rudy’s estate, he (Rudy) had told witness that he had given his wife a note for money he had got from her, and paid his interest.</p> <p>This was objected to by the defendants, and admitted under exception.</p> <p>Among the points presented, on which the court were requested to charge the jury, were the following:—</p> <p>2.The law looks with great disfavour on settlements and arrangements made by failing debtors to help near relations at the expense of meritorious creditors, and especially so, if the transactions indicate a provision by such debtors for their own benefit.</p> <p>8. If the plaintiff allowed her husband to take, or she gave him her money and he used it as his own for years, and thereby acquired credit from others, she could not afterwards, when he, heavily involved, was about breaking up, claim such funds as her separate estate, and by means of a judgment given her, withdraw his property from the grasp of his creditors.</p> <p>4. A wife while living with her husband, cannot recover interest on any debt he may owe her.</p> <p>Under the ruling of the court below (Long-, P. J.), there was a verdict and judgment in favour of the plaintiff. Whereupon the defendants sued out this writ, averring,</p> <p>1. That the court erred in admitting the evidence of Abraham G. Groff, viz.: The conversation he had with Adam Rudy in the spring of 1857, with regard to his wife’s estate, and money he had got from her.</p> <p>2. In their answer to second point of plaintiff below, in saying “ and unless it is clearly proved by defendants that it was a gift, and made to the husband before the note was given, and that the judgment was given to defraud his creditors, your verdict ought to be for the plaintiff, Mrs. Rudy.”</p> <p>3. In the following answer to third point of defendants below: “ There is nothing in the law to prevent a wife from allowing her husband to make use of her separate estate, and afterwards when he became involved, or in failing circumstances, to take a judgment to secure herself — like every other creditor, she has a right to do so.”</p> <p>4. In their answer to fourth point of defendants below, viz.: “ I am of the opinion that under the Act of the Legislature of 1848, relative to married women, the plaintiff is entitled to recover interest on tbe money which was received by her husband, if the verdict is for the plaintiff.”</p> <p>5. In not instructing the jury that the including $100 in judgment, which was paid over to old Mrs. Eby, and formed no part of Mrs. Rudy’s estate at any time, was a fraudulent attempt to take that amount from her husband’s creditors.</p> <p>6. That the court should have charged the jury irrespective of other questions in the case, that if the judgment in controversy was taken for more money than was due, that circumstance stamped the transaction as fraudulent, and vitiated the whole bond.</p> <p>cited and relied on Black v. Nease, 1 "Wright 433; Kline’s Appeal, 3 Id. 468; McGlensey’s Appeal, 14 S. & It. 64; .Gochenauer’s Estate, 11 Harris 460; Stehman v. Huber, 91 d. 260; Hobensack v. Hillman, 5 Id. 154; Rhoads v. Gordon, 2 Wright 277 ; Gates v. Johnson, 3 Barr 52; Jackson v. Summerville, 1 Harris 359; McDowell v. Rissell, 1 Wright 164.</p>

<p> Liability of sheriff’s sureties for printer’s bill. </p> <p>The sureties on a’sheriff's official bond are not liable to a printer for advertising notices, rules, audits, inquisitions, and sales ordered by the sheriff, though it was a part of his official duty to cause such advertisements to be made, for neglect of which they would have been responsible.</p>

This was an action of covenant by Jonathan D. Hiester against John Shaeffer, for arrears of ground-rent due on lot No. 99, in the borough of Manheim, Lancaster county. A suit had been previously brought against John Snyder, a former owner of this lot, and judgment recovered against him up to the date of the sale of the lot to Mr. Shaeffer. This action was then commenced against Shaeffer before a justice of the peace, for rent which had accrued since.