Volume 46 — Pennsylvania State Reports

<p>Ejectment to compel specijic execution of contract.— When one verdict and judgment is conclusive. — That the equity was decided in former action may he proved by parol. — Legal and equitable ejectments discussed.</p> <p>1. Though one verdict and judgment in an action of ejectment brought to compel the specific execution of articles of agreement for the sale of land, is,, under the rule of Seitzinger v. Ridgway, conclusive between the parties and a bar to any subsequent action, yet in order to give the judgment that effect, it must be shown distinctly that the equitable title was directly in issue and decided tipon.</p> <p>2. The fact that the equity claimed was decided in a former action of ejectment, may be shown by parol testimony, and need not appear by the record unaided by other evidence; for where the record is general, it may be shown by parol what were the matters in litigation.</p> <p>3. Where, in a third action of ejectment for the same land between the same parties or their privies (the first having been decided in 1825, in favour of the party under whom the plaintiff now claimed, and the second, in 1843, in favour of the defendant’s title), the plaintiff set up the first verdict and judgment as conclusive, because they were given upon the equitable title of the party then defendant, but did not show that his equitable title was the sole question in issue, and the sole ground of the verdict: Held, that the refusal of the court below to instruct the jury that the first verdict and judgment were not conclusive, was proper.</p>

<p>Recovery of mesne profits after judgment in ejectment, barred by Statute of Limitation.</p> <p>In trespass for mesne profits after judgment in ejectment, the plaintiff can recover only for what had accrued within six years previous to the commencement of the action; for all rents, issues, and profits accruing previously thereto, the Statute of Limitations is a bar.</p>

<p> Estates created by deed conveying land to a married woman and “her children exclusively, their heirs and assigns,” &c. </p> <p>' A conveyance to a married woman “ and her children exclusively, and their heirs and assigns, to have, and to hold” to her “ and to her children exclusively and their heirs and assigns,” vests in her a life estate with remainder in fee to her children as a class, so that those in being at the date of the deed, as well as those subsequently born, would be entitfed to take, in the distribution, on the termination of the life estate at her death.</p>

<p>Error to the Common Pleas of Dauphin county.</p> <p>This was an action brought by the Commonwealth against F. M., P. A., A. J., and J. W. Drexel, doing business in Philadelphia as Drexel & Co., to recover the penalty of $1000, imposed by the third section of the Act of May 16th 1861 (P. L. 708), for their failure to make the return required by the first section of that act from every stock-broker, bill-broker, exchange-broker, real estate broker, and private banker in the state of Pennsylvania.</p> <p>This Act of Assembly provided, “ That every stock broker, bill broker, exchange broker, real estate broker, and private banker in this Commonwealth shall, on or before the first Monday of December next, and on or before the same day in each year thereafter, make a written return under oath or affirmation, to the Auditor-General of this Commonwealth, in which return he shall exhibit and set forth the full amount of his receipts from commissions, discounts, abatements, allowances, and all other profits arising from his business, during the year ending the thirtieth day of November preceding the date of such annual return, and shall forthwith pay into the state treasury three per centum upon the aggregate amount contained in such return, for the use of the Commonwealth; all revenues derived from this source are hereby appropriated,” &c.</p> <p>The third section imposed a penalty of $1000 for neglecting or refusing to make this return.</p> <p>At the time of the passage of this law, and for some years previous, the defendants were engaged in business in the city of Philadelphia as stock, bill, and exchange brokers, and private bankers, under the authority of licenses duly issued in the name of the Commonwealth, and for which they had paid the consideration required by law. When called upon by the auditor-general to make a “return of the full amount of their receipts from commissions, discounts, abatements, allowances, and other profits during the year ending November 30th 1861,” they sent a protest, in which they submitted certain reasons which rendered it impossible for them to make the requisite return.</p> <p>Acting under the directions of the 3d section, the auditor-general then proceeded to collect the penalty of $1000, “ on an account settled by the accountant officers, as taxes on bank dividends are settled and collected.” An appeal was taken from this settlement, in accordance with the provisions of the Act of 30th March 1811, § 11 (5 Sm. 230, Purd. 822, P. L. 20), to the Court of Common Pleas of Dauphin county, accompanied with a specification of objections to said settlement.</p> <p>It was shown at the trial that Drexel & Co. transacted business as bankers and brokers during the whole of the year 1860 and of 1861; that during the portion of the year preceding the passage of the Act of Assembly, i. e., from May 16th 1861, to November 30th 1861, they received numerous sums of money from commissions, discounts, abatements, allowances, and other profits arising from their business; that no such account of these receipts was kept as would have enabled any one to state the amounts they thus received, either separately or in the aggregate, and without accurate memoranda of the receipts, no one could have possibly made the return required, inasmuch as the nature of the transactions, amounting to several thousand during each working day, precludes the possibility of the memory being able to state such facts, nor could such receipts be ascertained by comparison, or in any other mode accurately at the time mentioned in the act; that a considerable portion of the sums so received during the said preceding part of the year had been lost or expended before the passage of the act, and that there was no account of stock taken in November 1860, and the profits of the year could not be ascertained without an account of stock having been taken at its beginning and end.</p> <p>On the trial the plaintiff requested the court to charge the jury as follows:—</p> <p>1. Where a penalty is imposed for the omission to do any act, the whole must be done, and in the manner required by the law, or the penalty is incurred.</p> <p>2. The Act of May 1861 does not sanction a return of estimated or believed receipts, but requires a positive statement of the amount, and from each of the specified sources from which there were receipts. Nor can the officers of the Commonwealth consent to accept them otherwise than as directed by the Act of Assembly.</p> <p>3. The various subjects of return mentioned in the Act of May 1861, are to be deemed as one, and the returns of all of them must be obligatory, or there is no obligation to return any,’ in which case no penalty is incurred.</p> <p>4. The legislature cannot impose a penalty for the omission to return a state of facts which have previously occurred, if at the time the act was passed the persons named in the act had not the means of learning and stating the said facts as required by the Act of Assembly, and there was no previously existing duty to obtain and return such knowledge.</p> <p>5. There can be no penalty for not making returns, if it was incompetent for the legislature to compel the -returns for a part of the term for which the one return is required by the statute.</p> <p>6. The word “ receipts” in this act means actual realization of the money or property defined, as “ commissions,” “ discounts,” &e., and not the nominal amount deducted as such at the time of making the transaction, if a subsequent sale of the article purchased is necessary to ascertain the amount which will remain with the broker as discount or commissions earned by him.</p> <p>7. If the jury believe that it was impracticable for the defendants to ascertain and state accurately the sums received from the various sources mentioned in the act during the portion of the year preceding the passage of the act, then, insomuch as no duty existed to ascertain the amount received until the law imposed the,.duty, no penalty can be imposed for a neglect or omission to make the required return.</p> <p>8. -If any portion of the receipts proposed to be taxed by this law had been expended or lost before the passage of the act, then such.receipts, not being in existence at the time the act was adopted, could not be made the subjects of taxation by the act in question! ■■</p> <p>9. : If”, the receipts thus expended or lost could not be subjected to taxation, then no penalty could be inflicted for not making a return of that which would not be taxable when so returned.</p> <p>10. Where a license to carry on a trade has been granted for value, and the trade has been carried on, transactions under that license cannot be taxed by a retrospective law, and a penalty imposed for .not returning such transactions for taxation is ex post facto, and unlawful.</p> <p>11. Taxation can only be imposed on the person or property, or something -in the nature of property, such as a privilege or franchise, but if laid on property not existing at the time (but which has ceased to be at the time the law was passed), it is illegal, and cannot be enforced.</p> <p>The jury, however, were instructed by the court (Pearson, J.), that the act was not retroactive in its effect, but that it was the duty of the defendants, from and after it'became a law, to keep such accounts as would have enabled them to comply with its requisitions, and to have made a return of their receipts from that date up to the end of the year, terminating November 30th. Under a peremptory direction that the defendants were subject to the penalty, the jury rendered a verdict for the Commonwealth for $1000.</p> <p>This writ was- thereupon sued out by the defendants, for whom the following errors were assigned :—</p> <p>1. The learned judge who tried the cause erred in deciding that the Act of May 16th 1861, was not retroactive in its effect, and that it did not apply to the transactions occurring in that part of the year ending the 30th day of November, which had already passed a-t the time of the enactment of the law.</p> <p>• 2. In deciding that from the time the law went into effect up to the 30th day of the following November, accounts should have been kept to exhibit the business, and that the failure to do so, and present a statement of the amounts received from May 16th 1861 to November 30th 1861, subjected the defendants to the penalty of $1000, and that the penalty was properly imposed by the auditor-general.</p> <p>3; In deciding that it was not impossible to state an account of the business of the year, or of that part of the year between May 16th 1861 and November 30th 1861, between the said 30th of November, which was Saturday, and the first Monday of December.</p> <p>4. In declining to affirm the points presented by the counsel for the defendants below, and in deciding that the said points were unimportant.</p> <p>5. In deciding that the defendants were subject to the penalty of $1000, and in instructing the jury that their verdict should be for the Commonwealth for that amount.</p>

<p>Error to the Common Pleas of Somerset county.</p> <p>This was an action on the case in assumpsit by James McAnally, for the use of Michael A. Sanner, against The Somerset County Mutual Fire Insurance Company.</p> <p>The case was this: — On the 12th of September 1856 McAnally applied to the company for insurance against loss by fire of a house in the 12th district, Allegheny county, Maryland. Among the interrogatories, in his application, to which the assured was required to make true answers, was the following: “ Is there any encumbrance upon the property to be insured ?” To which he answered, “None.”</p> <p>In his application he covenanted and agreed, that “If any untrue answer has been given to the foregoing interrogatories, whereby the said company have been deceived as to the character of the risk, or if any change be made as to the tenants or occupancy of these premises without being notified to this company, and endorsed upon their policy, then this insurance to be void, and the policy of no effect.”</p> <p>Upon this application a policy was issued to him, dated 30th of September 1856, insuring the property for three years from 12th September 1856.</p> <p>The house was destroyed by fire on the morning of the 21st of April 1857, for which loss this action was brought.</p> <p>On the trial, defendants objected to a recovery, on the defence raised by the following plea, viz.: “ That at the time of the application by plaintiff for insurance, he was required to make true answer as to whether there was any encumbrance upon said property or not. To which he replied there was none, when, in truth and in fact, there was a judgment against the said plaintiff in the Circuit Court of Allegheny county, Maryland, for which said property was bound, by reason of which false statement the policy of the said plaintiff became void, and the said defendants released from all liability thereon.”</p> <p>In support of the issue raised by this plea, defendants produced a certified copy, the record of a case in said Circuit Court, wherein Henry B. Martin is plaintiff, and James MeAnally, garnishee of John Martin, is defendant, showing that a judgment was confessed on the 22d day of. May 1856, for $90, with interest from the 4th day of October 1851, and costs $5,331]-.</p> <p>The court below (Hill, P. J.-), after stating the case, charged the jury, that the “judgment against the plaintiff was entered to cover a certain claim attached for goods sold, and when such goods were sold the judgment was to be satisfied. The plaintiffs say this money has been paid, and that the money was paid into court in Allegheny county, Maryland, in 1854, to satisfy said judgment. From my recollection of the testimony, the sum paid into court was $150. The plaintiff has produced the depositions of S. M. Semmes and James Reynolds, which, it is alleged, proves the payment of said judgment. There is a discrepancy in the dates. The money was paid into court in 1854, and the judgment confessed on the 22d of May 1856. In the process of attachment, if such process in Maryland is conducted as such cases are in Pennsylvania, there is generally more delay than in common actions. We submit the testimony to you to find whether said judgment was paid, or provision made for its payment at the time-the insurance was given, on the 12th September 1856. If the judgment was no encumbrance, and did not mislead or deceive the insurance company when the policy was issued, your verdict should be for the plaintiff for the amount insured.</p> <p>“ If, from the evidence, you should conclude that this judgment was satisfied at the time the policy was insured, and that in McAnally’s answer if he were mistaken in his answer as to this encumbrance, but that such mistake did not deceive the defendants as to the character of the risk, your verdict should be for the plaintiff. The deceit practised by the issued as to the risk should be considered, in a reasonable manner, a small judgment for $20 or $30, or even $100, which was an encumbrance on the lot, we submit it to you to say whether it would be such a deception as would affect the character of the risk. If you believe that it would not affect the risk, that is, if such an answer would not endanger the payment of the assessment on the premium note, or the payment of the premium note itself, then the verdict should be for the plaintiff.</p> <p>“We answer the points of the plaintiffs as follows: The judgment of condemnation on an attachment would, we presume, bind the real estate of McAnally as a lien.</p> <p>“ 2d. If the money was paid into court, it would be substantially a payment of the judgment, to be appropriated to the claims of the attachment, under the directions of the Court of Allegheny county, Maryland.</p> <p>“ If the defendants have not made out, from the evidence, satisfactorily to you that this property was so encumbered by the judgment referred to as to deceive the company as to the character of the risk, their defence has failed, and the finding should be for the plaintiff.”</p> <p>There was a verdict and judgment for the plaintiff. Whereupon the defendant sued out this writ, and assigned for error the instructions given to the jury as above stated.</p>

<p>Former recovery, when a question of law. — Set-off, power of defendant to control.</p> <p>1. Whether or not a matter has been adjudicated in a prior suit is often a question of fact for the jury; but whenever it is determinable by the pleadings, it is a question of law for the court.</p> <p>2. A defendant is not precluded from claiming a set-off on the trial of a cause in court, by reason of his having used it in another suit by the same plaintiff, before arbitrators, from whose award the plaintiff appealed.</p>

<p>Error to the Court of Common Pleas of Lancaster county.</p> <p>This was an action of debt, brought by S. Austin Allibone, who survived William H. Jenks, late partners as Allibone & Jenks, for the use of Edward M. Paxson, his assignee, against the Conestoga Steam-Mills, C. Hager, David Longeneeker, Hon. Alexander L. Hayes, Thomas Baumgardner, and James B. Lane, and G. T. Lane, administrator of John N. Lane, deceased.</p> <p>On the 24th of December 1849, the defendants prepared a certificate under the General Manufacturing Law, setting forth that they intended to prosecute the manufacture of cotton goods under the corporate name of “The Conestoga Steam-Mills,” and that $500,000 of capital stock had been subscribed, whereof each of them had taken two thousand shares of $50 each. This certificate was duly recorded and filed.</p> <p>But $467,250 of this stock was paid in. To the parties paying the same, including defendants, transfers of stock proportioned to the several amounts paid, were executed. These transfers were all signed by the five defendants. Nothing was said or done respecting the $32,750 of capital stock not paid in.</p> <p>The corporation went into business and acquired three factories, and on the 7th of March 1855, the stockholders divided the whole property of the company into three equal parts — a portion organizing a new corporation under the name of Conestoga Steam-Mills, No. 3 — an individual taking one-third, and proceeding under the name of Conestoga Steam-Mills, No. 2— and the original corporation retaining a third of the property and the old name, but being commonly known thereafter as Conestoga Steam-Mills, No. 1.</p> <p>To correspond with this division, the original company, on the 17th of January 1856, by a general meeting of stockholders, reduced their capital to $166,650, and recorded a certificate of such reduction, wherein they recited some of the circumstances of the division, and stated that the amount of stock available to the corporation was $155,750.</p> <p>On the 4th of December 1856, Allibone & Jenks sold the company the cotton for which this suit was brought, and judgment was obtained against the corporation for the price thereof. The plaintiff in this suit claimed to charge the defendants with this amount upon the grounds that they subscribed to the corporation $32,750 of stock, which was never paid in; that this stock was never transferred by them; and that, according to the proceedings for reduction, $10,900 of this stock remained the property of the creditors of the corporation, and the defendants were individually liable therefor.</p> <p>The pleas were nil debet and nil debet infra sex annos, to which plaintiff replied that the action did accrue within six years.</p> <p>The defence was, that the plaintiffs had no equity, and that the usual interpretation of the law should not be departed from for their especial benefit. That the 19th and 20th sections of the General Manufacturing Law were obeyed, and the contemplated reduction fully carried out in exact and literal compliance and conformity with all the requirements of these sections. That the plaintiff’s claim was barred by the Statute of Limitations.</p> <p>The jury found (April 30th 1862) a special verdict, as follows :—</p> <p>“ That the defendants, on the 24th December, A. D. 1849, and on the 8th day of July 1850, made, recorded, and acknowledged • and filed the certificates, which complied in form with the requirements of the Act of April 7th 1849.</p> <p>“ That the firm of Allibone & Jenks, on the 4th day of December 1856, sold and delivered cotton to the corporation defendants, under the name of Conestoga Steam-Mills, No. 1, to the amount of $4793.85, upon a credit of five months; for which cotton the corporation gave their three several promissory notes, of date November 22d 1856, December 4th 1856, and December 16th 1856, each for $1597.95, which notes were protested at maturity, and thence have been and still are held by the plaintiffs. That plaintiff Jenks died, and that the plaintiff Allibone afterwards, to wit, November 19th 1857, made a general assignment, for the benefit of creditors, to the equitable plaintiff, E. M. Paxson, Esq.</p> <p>“ That the defendants transferred to different parties named in the transfers $467,250 worth of stock, including transfers to themselves, which had actually been paid up by them, said transfers having all been made January 5th 1850. That in the year 1855 defendants all severally disposed of the stock which they had before transferred to themselves and paid for, and from that time ceased to appear on the books of the company as stockholders ; no part of the subscriptions recited in the certificate having been either charged or credited to them on the books of the company, except the certificate of December 24th 1849, hereinbefore referred to.</p> <p>“ That on the 7th of March 1855, an arrangément was made among the stockholders whereby the whole property of the Conestoga Steam-Mills was divided into three equal parts — a certain number of stockholders took No. 1 and carried it on, No. 2 was taken by D. Longenecker, and other stockholders took No. 3, and these parties interchangeably conveyed and released to each other as per deeds recorded, and made part of this verdict; the consideration of said conveyances being the transfer by Longenecker and the stockholders of No. 3 of two-thirds of the stock, as recited in the certificate hereinafter mentioned.</p> <p>“ That parties representing the original company, on the 19th day of January 1856, filed the certificate mentioned, and the jury find the facts therein stated.</p> <p>“ That plaintiffs knew of the division of the mills, the filing of the last certificate, and the reduction of stock thereunder. That the plaintiffs dealt with the company as an aggregate before the division, and after the division dealt with each of them, designating them by their names under the division.</p> <p>“ And the jury, being ignorant of the law, submit the above facts to the court, and if, upon the said facts, the court should be of opinion that the plaintiff is entitled to recover, then the jury find for the plaintiff in the sum of $6214.59, to bear interest from April 30th 1862, and six cents costs.</p> <p>“ And if the court should be of opinion that the plaintiff is not entitled to recover, then the jury find for the defendants, with six cents costs.”</p> <p>Judgment was entered for defendants on the special verdict. Whereupon the plaintiff removed the case into this court, averring that the court erred in entering judgment for defendants on the special verdict. Judgment should have been entered for the plaintiff for the amount found by the jury.</p>

<p>Error to the Common Pleas of Lancaster county.</p> <p>This was an action on the case by James Graham and Walter Graham, partners trading as James Graham & Co., against Joseph S. Hollinger, for falsely and fraudulently representing to plaintiffs that one Alexander T. Fahnstock was a person to whom the plaintiffs might safely sell goods on credit, by means of which goods were sold to him on bredit, and a loss incurred.</p> <p>Under the instructions of the court below, there was a verdict and judgment for defendant; whereupon the plaintiffs sued out this writ.</p> <p>The errors assigned, and matters 'discussed on the argument here, are sufficiently set forth in the opinion of this court.</p>

<p>The Act of April 2d 1849, relative to preference given to labourers’ xoages, construed.</p> <p>1. Under the Act of April 2d 1849, all labourers employed by the persons and companies therein named, are entitled to its benefits, whether the wages agreed to be paid are measured by time, by the ton, or piece, or any other standard.</p> <p>2. The labourers included in the act are those who perform with their own hands the contract they make with the employer, and where the nature of the work done requires helpers or assistants in aid of the chief workman, their wages are as much within the protection of-the-act as those of the principal workman. - ■</p> <p>3. Though the statute limits this protection to persons employed by the proprietors, such necessary helpers or assistants are impliedly employed by them through their agents, the chief or principal workmen ; are within the protection of this statute, and are entitled to their wages not exceeding $50, where they have not been paid by their immediate employer.</p>

<p>Tax-sale title. — Presumption of law as to existence of surplus bond.— Receipt on deed, evidence of price paid bp purchaser.</p> <p>1. In ejectment for land bought at a tax sale in 1818, where the treasurer’s deed recited the payment of the whole purchase-money, a receipt for which was appended, but did not recite a surplus bond, held that no "presumption that such a bond was given will arise either from lapse of time, the payment of taxes from 1830 to the time of suit brought by the plaintiff'and those under whom he claimed, or from the duty of the officer to see that such a bond was given, against the evidence in the deed that the whole bid was paid in money, and that, therefore, no bond was given for the surplus.</p> <p>2. Whether proof of a uniform office practice in the use of but one form for a treasurer’s deed, in case a bond was given or not, would overcome the evidence of the deed that the whole price was paid, quaere.</p> <p>3. But as the lapse of time proves nothing in favour of an unclaimed title, and as the legal presumption of official regularity was wanting in this case because of the form of the deed, the presumption that a bond was given could arise only from the payment of taxes on the land: and where they were not paid by those claiming under the tax sale for thirteen years thereafter, and were paid by the defendants and those under whom they claimed during that time and up to the time that suit was brought upon the land assessed as theirs, the case was held insufficient to ground any legal presumption that the surplus bond was given.</p> <p>4. Therefore, where the jury were instructed that the lapse.of time between the sale and the bringing of the ejectment and the payment of the taxes by the purchaser and those under whom he claimed during that period, would raise a legal presumption that a surplus bond had been given which would stand for proof of the fact until rebutted, the instruction was held error.</p>

<p>Sale of improvement right, when invalid. — Interest of settler is realty, and as such transmissible. — Official duties of surveyor, presumption in favour of.</p> <p>1. The sale of an improvement right made after the improver’s death hy a relative who settled his estate without legal authority, passes no title to the vendee: and in an action of ejectment by one claiming under him for a part of the land thus sold, the articles of agreement by which the sale was made, are not admissible in his behalf, nor is any evidence, therefore, admissible relating to the improvement as first made by the settler.</p> <p>2. The interest of the settler, who has resided upon the land with his family for fourteen years, clearing and cultivating it, is realty, transmissible as such, and ñot as a chattel interest.</p> <p>3. Where the land when settled upon belonged to the Commonwealth, no title by adverse possession can be acquired: and where the title of the plaintiff was by purchase iu 1847, and. that of the defendant by warrant and patent in 1855, the entry of the original settler in 1832 relates to neither, and the statute does not apply. A plaintiff can claim the benefit of the possession of a settler only by virtue of a valid conveyance.</p> <p>4. Where a part of the survey of the settler was appropriated by the defendant’s warrant, it was not necessarily void for so much, as an encroachment on the settlement right, nor is it to be presumed that the location of the warrant was in violation of the settler’s rights: for the warrant might have been properly laid to include a portion insufficiently designated by the settler, and the presumption that the official duties of the surveyor and of the land office were performed, is in favour of, and not against the location made, in the absence of proof to the contrary.</p> <p>5. Though the plaintiff in this case might have entered as a settler in his own right in 1847, at which time he came into actual possession of the land, he cannot claim as such where he manifested no intention so to do, but has claimed solely under the improvement right of the original improver.</p>

<p>Error to the Common Pleas of Adams county.</p> <p>This was an action of assumpsit, brought by John Shultz against Robert Irwin and W. W. Taylor, partners, doing business as Irwin & Taylor, in which, under the ruling of the court below, there was a verdict and judgment in favour of 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>Assumpsit, evidence to support.— Consideration of contract, when insufficient.</p> <p>1. Where the plaintiff in an action of assumpsit seeks to support his claim against the estate of a decedent by the will of the deceased, he must show that it is made a debt by the terms of the will, or he cannot recover it as a debt.</p> <p>2. Proof of assurances of pecuniary assistance and accompanying advice is not evidence of a contract, nor is compliance with such advice regarded in law as a legal consideration sufficient to support an action of assumpsit.</p>

<p> Patents issued by land office to person claiming under warrantee enure to the benefit of him who has paid the purchase-money for sale of the title to the warrant. </p> <p>1. "Where, under a contract of bargain and sale, a title to land-warrants issued by the Commonwealth has been bought, and the vendee, in pursuance of the terms of the contract, has paid the purchase-money and office fees into the land office, and the surveying expenses as a portion of the purchase-money, the patents taken out by a party claiming under him to whom the warrants were issued, will enure to the benefit of him who paid the purchase-money, although more than twenty-one years have elapsed since the date of the patent, especially where he and those under whom he claimed had in the mean time exercised acts of ownership over it, and the vendors had omitted to do so for over forty years.</p> <p>2. The presumption of law in such case is, that after the lapse of twenty years from the date of the patent, or the return of the survey, the whole purchase-money has been paid, and after the further lapse of thirty years, that a deed of conveyance in confirmation of the contract has been given, which' presumption becomes absolute in the absence of rebutting evidence. .</p>

<p>Lien of bank on stock of indebted stoclcholder, when it commences.— Bight of endorser, by subrogation, to securities held by bank.</p> <p>1. The Act of Assembly approved. April 16th 1850, which prohibits the transfer of bank stock or the receipt of dividends thereon by any stockholder who may, at the time, be indebted to the bank, though intended mainly for the security of the bank, operates also incidentally in favour of the endorsers of such debtors.</p> <p>2. The right of a bank to prevent such transfer or payment becomes absolute as soon as any such debt becomes due and payable, and the legal title to the stock remains in the bank for its own security until payment, and for the benefit of the sureties of a debtor, if there be any, afterwards.</p> <p>3. The sureties of such indebted stockholder are in equity entitled to be subrogated to the security thus held by the bank, which equitable right attaches the instant the lien of the bank commences, and is consummated by payment of the debt for which they wore surety.</p>

<p>Error to the Common Pleas of York county.</p> <p>This was an action of ejectment,- by Peter Erwin against Andrew Myers, to recover possession of a lot of ground and distillery, which had been sold by the plaintiff to the defendant, or' enforce the payment of the purchase-money.</p> <p>In September 1850, the title to the property in dispute was vested in John Hartman, who on that day conveyed it to Henry Imhoff and Jacob Myers.</p> <p>On the 3d of August 1857, Jacob Myers, one of the firm of Imhoff & Myers, confessed a judgment in the Common Pleas of York county to John Eisher. Upon the application of Imhoff, the court restrained the operation of this judgment to the firm property of Imhoff & Myers, and the separate property of Myers ; and on a fi. fa. being issued upon this judgment a levy was made on the property in dispute, which by subsequent proceedings was sold by the sheriff on the 24th of April 1858, to John Eisher for $1834, and a sheriff’s deed made to him therefor. On the 1st of May following John Eisher conveyed the property to Peter Erwin, the plaintiff. Peter Erwin, on the 23d of February 1859, by articles of agreement covenanted to convey the same to Andrew Myers for the consideration of $3700. Subsequent to the date of this agreement the defendant went into possession. A dispute having arisen between the parties in regard to the validity of the title and the amount of money paid on the purchase, this suit was brought as above stated.</p> <p>On the trial in the court below, the plaintiff gave in evidence judgment of John Eisher against Imhoff & Myers, No. 276, April Term 1857, for $1553.50, payable on demand, entered August 3d 1857, with fi. fa. on the same, No. 40, August Term 1857; venditioni exponas, No. 32, April Term 1858, and return the same, from which it appeared that on the 24th of April 1858, the sheriff sold No. 1 (the premises in dispute) to John Eisher, for $1831. Deed of Samuel Eorscht, sheriff, to John Eisher, for same, dated April 26th 1858; deed of John Fisher to Peter Erwin, for same, dated May 1st 1858; agreement between Peter Erwin and Andrew Myers, dated 23d February 1859, for the sale and conveyance of the premises and distilling apparatus, on the 1st of April 1859, for the consideration of $3700; the possession of defendant under the agreement, and the deed of plaintiff and wife to defendant for the premises in dispute, dated December 10th 1861, and filed in court December 17th 1861; and thereupon rested.</p> <p>The defendant then offered in evidence a deed from John Hartman and wife to Henry Imhoff and Jacob Myers, dated 9th September 1850, for the premises in dispute, acknowledged 22d July 1852, and recorded same day; to be followed by proof of payment of a large portion of the purchase-money, and by evidence of the transfer of the interest of Imhoff to A. D. Ditmars, Esq., by virtue of a sheriff’s sale under a judgment of Ditmars against Henry Imhoff (for $2000), entered July 21st 1857, with the sheriff’s deed for same to Ditmars, dated 24th August 1860, and acknowledged 28th August 1860, for the consideration of $450. This was objected to by plaintiff, first, as irrelevant; second, because this being an equitable ejectment between vendor and vendee to recover balance of purchase-money or possession, defendant cannot set up an outstanding title to defeat a recovery by his vendor; and, third, because the title claimed by Henry Imhoff, or the person claiming under him, cannot be tried in this court.</p> <p>The court replied : “ Defendant does not offer the evidence for the purpose mentioned in second and third objections, but for the purpose of showing the plaintiff has a defective title, and is entitled to only a proper conditional verdict.” Whereupon the plaintiff objected to the offer as irrelevant for any of the purposes mentioned.</p> <p>The court overruled the objection, and admitted the offer; which was the first error assigned.</p> <p>The defendant then proved an alleged conversation between the parties in February 1860, in which the plaintiff said that the balance due on the property was “ $2048.25, and the slop to come off that,” and that the way he found it was that “he and his son had looked over the book the day before.”</p> <p>He then offered to prove that it was agreed Erwin was to pay Myers 12 cents per bushel for every bushel of 50 pounds of grain-chop distilled at the still-house for the use of the slop, and the amount to be credited on the property; to be followed by evidence showing the quantity of grain-chop distilled; to be proven by a witness to a conversation which he heard between the parties when plaintiff’s hogs were at the still-house.</p> <p>This was objected to by plaintiff as irrelevant; but the objection was overruled, and the offer admitted.</p> <p>The defendant thereupon called a large number of witnesses, chiefly farmers and millers, who testified to the quantity of grain and chop they severally furnished to defendant, and rested.</p> <p>The plaintiff then offered to prove hy Henry Imhoff, for the purpose of showing that the property was held by Imhoff & Myers as partners; that he was a member of the late firm of Imhoff & Myers. That the lot on which this distillery is erected was purchased by Imhoff & Myers for the purpose of erecting a distillery thereon. That they erected the distillery,, and paid for it and the land out of the partnership money. That the property was necessary for partnership purposes, and that the firm continued to occupy and use the property exclusively for partnership purposes until the time of its dissolution.</p> <p>This was objected to hy defendant; first, because parol evidence cannot be admitted to contradict the legal effect of the deed from John Hartman and wife to Henry Imhoff and Jacob Myers, dated 9th September 1850, and recorded July 22d 1852, and given in evidence in this case, particularly after a sale of the interest of Imhoff to Ditmars; second, because not evidence for the purpose offered; third, because irrelevant; fourth, because the defendant cannot be called upon to take the title with such a defect on the face of the deed; fifth, that Henry Imhoff, one of the parties, cannot be called to prove what is proposed to be proven by him.</p> <p>The court sustained the objections, and rejected the evidence, which was the second error assigned.</p> <p>The plaintiff then renewed the offer substantially, for the purpose of rebutting the evidence given in defendant’s offer (viz., Ditmars’ judgment and sheriff’s sale under it, of Imhoff’s alleged interest), and to be used before the court and jury with a view to obtaining a verdict for the plaintiff for the land, conditioned to he released on payment of any balance of purchase-money which the jury may find due and unpaid.</p> <p>This was objected to by defendant, and rejected in the court.</p> <p>The plaintiff then (after some evidence given to contradict Emanuel Myers and Killinger) offered to prove, after the evidence given by defendant’s witness, E. Myers, that plaintiff was to pay defendant 12 cents a bushel for all the grain-chop distilled for the use of the slop, and that any balance due on the slop, after deducting plaintiff’s account for grain, &c., furnished to defendant, should be credited on the property; that defendant owed plaintiff about $197 for wood, meat, grain, and other produce, and a cow furnished in 1860, $100 cash lent in December 1859, $15 cash paid for debt as his bail, and $100, the amount of a note endorsed by plaintiff for defendant, which plaintiff was obliged to pay. This was offered for the purpose of showing what the balance due defendant on the slop was.</p> <p>Defendant objected, first, to all the credits claimed since the bringing of this suit, 19th April 1860; second, because the testimony offered is not proper evidence in the case; third, because all credits, if any, prior to February 1860, the time spoken of by Killinger, were included in balance spoken of by him ; fourth, because the plaintiff on this subject has called Emanuel Myers, made him their own witness, and he gave them the bargain about the slop, and says he does not recollect the word “balance” was used.</p> <p>Plaintiff then withdrew the offer, and recalled E. Myers, who said: “Erwin was to pay Myers 12 cents for every bushel distilled, and that was to be credited on the land or property. I do not recollect that the word balance was used.”</p> <p>The last offer was then renewed, and rejected by the court, which was the third error assigned.</p> <p>The plaintiff then offered to read to the jury from the court’s notes of the former trial, the evidence of Henry P. Killinger, for the purpose of contradicting him.</p> <p>To which defendant objected, first, because they do not offer it after having the jury or any other person first sworn; second, because it is not evidence as offered; and irrelevant, as it does not contradict Killinger.</p> <p>' The objection was sustained, and a bill sealed for plaintiff.</p> <p>The plaintiff then made the following offer, for the purpose of setting off damages against defendant’s claim to have purchase-money refunded. “Plaintiff now offers to prove by witness on the stand, and others, that since defendant has been in possession of this property he has thrown down a large brick smokestack, formerly used in connection with the engine and boiler, containing from fifteen to eighteen thousand bricks; that nearly all the distilling apparatus mentioned in the agreement of the 23d February 1859, has been taken away and sold by defendant; that part of the fences and hog-pens have been taken away, and generally that the property has been so badly used by him that it is now worth much less than when he took possession of it. This was objected to by defendant’s counsel as not evidence for the purpose offered, which objection was sustained by the court, and the offer rejected, which was the fourth error assigned.</p> <p>The plaintiff requested the court to file their charge in writing, and instruct the jury,</p> <p>1. If the jury should render a verdict in favour of the plaintiff, conditioned that he shall refund to the defendant all he has paid on account of it, it is the duty of the jury to take into consideration, and charge against the defendant, the interest due up to this date on the purchase-money unpaid.</p> <p>2. If the jury believe that the defendant came into possession of the premises in dispute under his agreement with plaintiff to purchase, he cannot dispute the title of the plaintiff, and, under the facts and circumstances of this case, his only remedy is to bring into court the unpaid purchase-money for the use of the plaintiff, whenever the plaintiff shall file such a deed as in the •opinion of the judge would have been a compliance with his part of the agreement, and as the defendant has not chosen this course, the verdict must be for the plaintiff to be released on the payment of the unpaid purchase-money within such time as may be fixed by the jury.</p> <p>3. That if the jury believe that the defendant is in possession of the premises in dispute under and in pursuance of the agreement of the 23d of February 1859, and that he has not paid or offered to pay the balance of the purchase-money, he cannot retain the possession because of any real or apparent defect in the plaintiff’s title.</p> <p>4. That if the jury believe that the defendant is in possession under the agreement of February 23d 1859, and the jury find that the interest on the unpaid purchase-money equals or exceeds that portion of the purchase-money already paid by defendant, their verdict ought to be an unconditional one for the plaintiff.</p> <p>5. If the jury do not believe the evidence of Killinger, then there is no other evidence of payment by the defendant excepting that of the $40 endorsed on the agreement, and that of the amount of grain furnished and distilled from which Erwin got the slop, and if, therefore, deducting those items from the interest on the purchase-money, they should find a balance in favour of the plaintiff, the verdict must be for the plaintiff without any condition.</p> <p>The court below affirmed the first, third, fourth, and fifth points, answered the second in the negative, and filed the following charge:—</p> <p>“ Before we consider the facts in dispute in this case we will instruct you that by virtue of the sheriff’s sale to John Fisher, he took an undivided half of the premises in dispute and no more. That Peter Erwin, his vendee, by the deed from Fisher, took also an undivided half and no more; and as he has given in evidence no other title than the one he derived from Fisher, the jury are instructed that his interest is an undivided half, and that having by the terms of his article of agreement with defendant covenanted to convey to him the entire premises, and not being able to do so, he cannot comply with his contract. But because Erwin cannot comply with his contract, that is no reason why Myers should keep both the property and the money he was to pay for it. What then is to be done ? Simply this, Myers has to allow the jury to find for the plaintiff the premises mentioned in the writ, on condition that the plaintiff shall repay Myers whatever purchase-money or property in lieu of purchase-money the former has received from the latter. The only question, therefore, in this case, that the jury have to decide, is, has the defendant paid to Peter Erwin, the plaintiff, any purchase-money or any property in lieu of purchase-money, and if any how much ? The defendant alleges that he has paid a large portion of the purchase-money, and that he has delivered to the plaintiff a large quantity of distillery slop, for which the plaintiff agreed to allow him a credit on the purchase at the rate of twelve cents for every bushel of grain that was distilled. If this is so the plaintiff must repay to the defendant whatever he has received from him; the amount to be ascertained in the manner hereafter'to be pointed out to you.</p> <p>“ In determining the question what is to be allowed for the slop of the distillery, if anything, the jury will first inquire what was the contract in relation to the slop ? That question is to be determined by the evidence given by Emanuel Myers, called by the defendant, and that of Anthony Shenebrook, called by the plaintiff.' To refresh your memory in relation to this testimony, I will read what they said from my notes. (Here the court read the testimony to the jury.)</p> <p>“ Should the evidence satisfy you that there was such a contract, you will then ascertain from the testimony in the case the amount distilled and the quantity plaintiff is chargeable with.</p> <p>“ Another item of credit is claimed by the defendant. It rests upon the testimony of Henry P. Killinger, which the court will read to you. (Here the court read to the jury the testimony from their notes.) From this testimony you will perceive that he, Killinger, swears positively that in February 1860, Mr. Erwin admitted that Myers owed him on this purchase the sum of $2048.25, and the slop was to come off from that. As the purchase-money was to be $3700, and $2048.25 was the balance, if the jury believe the testimony of Killinger, it would seem that Erwin admitted that he had been paid over and above what the slop would amount to, the sum of $1651.76. On cross-examination this witness testified that a part of the conversation was that Myers asked Erwin how he found out that was the balance,’ and to which Erwin replied, ‘ that he and his son had looked over the books the day before.’ To invalidate the testimony of Killinger, and in accordance with the ruling of the Supreme Court when this case was before that tribunal, we admitted the plaintiff to call several of his sons, to wit, Wellington Erwin, Clayton Erwin, and William Erwin, who prove that they had not examined with their father at any time his books, to ascertain the amount paid Emanuel Myers on that contract. It was also proved that at that time Albert, another son of plaintiff, who was not examined, was in Tennessee. But it was also proved that the plaintiff had another son, John, who lived a fewr miles from his father, who at that time often visited him, and who was in town on last Monday or Tuesday, and who went to Virginia, instead of being detained here to testify. Why this was done has not been explained to the court and jury. Certainly he ought to have been examined if his testimony could have broken down the testimony of so important a witness as Killinger. The wdrole evidence on this subject is committed to you, and what credit you will give to it is for you to determine.</p> <p>“ In making up your verdict the j-ury will first ascertain how much defendant paid on account of the purchase, either in money or the delivery of still-slop. If they come to the conclusion that a portion was paid, they will inquire how much ? Having ascertained this, the jury will allow the plaintiff interest on the $3700, first deducting the $40 from the said $3700, or allowing Erwin interest on the balance, until the defendant is entitled to his first credit, if that credit exceed the interest due; and proceeding thus until the balance is ascertained, crediting no payment, unless the payment exceed the amount of interest due at the time, and thus taking care not to calculate interest upon interest. The rule being that money on account of a debt should first be applied to discharge the interest due at the time of payment, and the residue, if any, be credited towards satisfaction of the principal. This method of calculating the court think ought to be adopted, because the defendant having been in possession and receiving the rents, issues, and profits, opght to pay interest in the manner indicated.</p> <p>“ If the jury find no balance due to the defendant, they will find for the plaintiff the premises mentioned on plaintiff’s writ. If they find a balance in favour of the defendant, the jury will render a verdict for the plaintiff for the premises mentioned in his writ, upon the payment by plaintiff of the amount they shall find to he due to defendant.</p> <p>“After this charge was written, the defendant’s counsel ask the court to say to the jury that the defendant claims nothing in this case for any improvements he may have made, and of which some slight evidence may have been given to the jury.”</p> <p>This charge was excepted to by the plaintiff.</p> <p>Under these rulings there was a verdict and judgment for defendant. Whereupon the plaintiff sued out this writ, and assigned for error the admission and rejection of the testimony above mentioned, the refusal of the court below to affirm the second point above, and the charge of the court as filed.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action on the case brought by Thomas Kirk, against The President and Managers of the Monongahela Bridge Company, to recover damages for the loss of a coal-boat and its cargo, alleged to have been wrecked upon one of the piers of defendants’ bridge.</p> <p>The plaintiff, after reciting the incorporation of the defendants, and the erection of a bridge by them over the river Monongahela ; and that the river was at the time alleged in the narr. a common public highway, navigable for boats, rafts, and other vessels; and that the plaintiff on the 10th day of April 1853 was the owner of a coal-boat, valued at, &c., loaded with bituminous coal; and that he had a right to navigate the same on the said river without any let or hindrance from the defendants by any erections or otherwise which should stop or interrupt the same, alleged that in navigating the said river with his boat, loaded with coal, and a competent pilot and crew, in passing under defendants’ bridge, he ran against, struck, and stove against one of the piers thereof, wrongfully allowed by defendants to be and remain in the channel of said river, and was so injured thereby as to sink his craft, with her loading, whereby the boat and coal became a total loss.</p> <p>To this narr. the defendants pleaded not guilty.</p> <p>On the trial of the cause the plaintiff produced the Act of the T9th of March 1810 (with special reference to the 8th section), incorporating the defendants, and the Act of the 17th of February 1816, renewing and continuing the same; and offered in evidence the “Act of the 13th April 1782,” declaring the Monongahela navigable for rafts, boats, dnd canoes, and an Act of the 17th August 1825, prohibiting erections over navigable streams. He also adduced evidence showing the loss of the boat in March or April 1853, by coming in contact with the. third pier of defendants’ bridge, in attempting to pass the same in the ordinary course of navigation. The substance of the testimony of the principal witness was:</p> <p>That he was piloting two coal-boats lashed together, on their way to the lower trade, and was trying to pass between the second and third piers, but finding they could not make it by all the men pulling, they straightened up the boats as soon as they could do so, by the application of their whole force, and then went to the left of the third pier, in passing which, one of the boats scraped along the pier, which resulted in the boat sinking at the head of Brunot’s Island, causing a total loss. The plaintiff, after proving his loss, and that it was occasioned by running against the pier, offered the testimony of a number of witnesses, persons engaged on the river and others, for the purpose of showing that the second and third piers were an obstruction to the navigation, and dangerous to boats employed in the coal trade.</p> <p>The defendants, after offering, and relying on the acts of incorporation already given in evidence by the plaintiff, together with the Act of the 17th of March 1825, and other acts, for the purpose of showing the true construction of the terms “ injure, stop, or interrupt the navigation,” made proof — that the erection of the bridge was commenced and the foundation of the piers laid in 1817; that the deepest water was between the abutment and first pier; that the second pier was at the commencement of the bar, where there was about four or five feet at low-water mark ; that at the third pier there was very little water, it being on the bar, not more than two feet of water on one side and eight inches on the other; that the bridge was repaired in 1832, the first pier having fallen; before that time the trade passed between the abutment and the first pier; that at the time of the repairs two other piers were taken down (including the second) and rebuilt— at the first pier the water was four feet shallow’er than in 1817 ; that this seemed to be owing to a cross current produced by the location of the canal and other fillings in on the shore, which affected the bar. It was further in proof that the piers, at the time of their construction, did not create any obstruction to the navigation; that they were as small as could be made with safety; that the bridge had been built on a patent plan, introduced for the first time in the western country; that the span; a hundred and eighty-seven and a half feet, having a water-line at a ten foot stage of near a hundred and eighty feet between the piers, was in the then stage of bridge building considered a very extensive space. That until the great improvement in the navigation, commencing in 1845, the usual quantity of coal in each boat was but about five or six thousand bushels, now increased to fifteen thousand, and that the trade had increased from four million bushels per annum to twenty-five millions, and was still increasing; that the boats floating coal drew about three feet originally, now upward of seven. That their sizes, the weight of coal, and form, rendered them exceedingly difficult to navigate, and whilst a single boat could pass through the intervals between the piers with facility, the mode of lashing two together greatly increased the danger of passing the bridge.</p> <p>From December 12th 1857 to September 26th 1859, six hundred and eighty pairs of coal-boats had passed, and one barge had been sunk, and that it was not unusual for the hands to leave the boats before passing the bridge, for the purpose of procuring provisions for the voyage, and joining them after they had passed.</p> <p>The plaintiffs requested the court to charge the jury:—</p> <p>1. That defendants are a private corporation and company of adventurers, and any ambiguity in their charter (if such there be) must be construed against the company and in favour of the public.</p> <p>2. That the act by virtue of which defendants exist as a body corporate, must be so construed as to give effect to eaeh and every part of the bargain; and the company having the option to refuse or accept .the franchise on the condition, in accepting took the same “ cum onere,” and having no rights outside of their charter, they must enjoy their franchise subject to that condition, or not enjoy it at all.</p> <p>3. That the true intent and meaning of the act of incorporation is, “ that the bridge was to be so built as not to injure, stop, or interrupt the navigation either then or now — whether in its infancy or full growth.”</p> <p>4. That the plaintiff is bound to use ordinary care in navigating the river; but the burthen of proof of want of such care lies upon the defendants, if they allege negligence or want of skill, and cannot be presumed in the absence of clear and satisfactory proof charging the same upon plaintiffs at the time or place in question.</p> <p>5. That the acts of third parties alleged in excuse of defendants, and to defeat the plaintiff in this action, must be such as are shown to have contributed to and brought about the loss; and not such acts as had not and could not have any direct or legitimate connection vrith the disaster.</p> <p>6. That mutual negligence as a defence can only be submitted to the jury when there is competent testimony charging want of ordinary care, skill, &c., on the plaintiff, and such as brings such default home to the plaintiff at the time and place in question.</p> <p>7. That in case the jury find for the plaintiff, they will award as damages such an amount as will make the plaintiff whole, and will compensate him fully for the loss sustained.</p> <p>8. That in reconstructing their bridge after the fire of 1845, defendants were bound to conform to the law, and not to hinder or obstruct navigation.</p> <p>' 9. That if the jury believe plaintiff’s witnesses (pilots), that they frequently laid over from night till morning with their boats, through fear of the piers of defendants’ bridgé, and also laid over above, on account of strong current in river at the piers, and are delayed for any length of time, or lose their trip by reason of such piers, the company have not so constructed their bridge as not to injure, stop, or interrupt the navigation.</p> <p>10. That proof of negligence, to affect the plaintiff, must be such as bears directly on the conduct of the pilot and crew, at the time and place in question, and cannot be supplied by proof tending to show the number of boats that pass the bridge safely. The best evidence touching this question must be produced, and that is to be produced from eye-witnesses who saw the plaintiff’s boat at the time the collision occurred.</p> <p>11. That if the jury believe the testimony of the plaintiff’s witnesses, who say, the piers of the bridge are the most dangerous obstructions to navigation of coal-boats between this place and the Falls of Ohio — that they cannot run through the piers after night, when they can navigate any other part of the river to Louisville — that the boats often strike on these piers and are lost — that they always exercise all the care in their power in passing, and could not content themselves with ordinary care, at any time, passing the bridge — the piers in question are as material obstructions to navigation, and if the plaintiff exercised ordinary care, at the time in question, he is entitled to a verdict in this case, and such damages as will make him whole.</p> <p>The defendants also requested the court to charge:</p> <p>1. That the charter of the defendants authorized and intended the erection by them, in the bed of the Monongahela river, of just so many piers as were reasonably necessary for the support and security of their bridge.</p> <p>2. That if said piers were so located and built as to be entirely consistent with the existing and probable wants of the navigation, looking to the condition of the river in its natural state, they are not now to be treated as obstructions in consequence of any alteration in the channel or trade to which they have not in any way contributed, which the defendants could not prevent, and which no human sagacity could have foreseen.</p> <p>3. That if the pier upon which plaintiff’s boat was wrecked was erected upon what was at the time a large and formidable bar, exposed and bare during a large portion of the year, and out of the usual track of navigation, it was a judicious location with respect to the convenience and safety of the navigation, and if since that time the channel has so shifted through the influence of currents, or other cause either natural or artificial, to which the defendants have in no way contributed, as to remove the bar and throw the said pier into deep water, it is not thereby made an obstruction within the meaning of the proviso, so as to charge the defendants in this suit.</p> <p>4. That the bridges over navigable rivers being as much common and public highways and as important to the people as the streams themselves, it has always been the policy of the government to encourage their erection; that the grants of such rights, like all other grants, are entitled to a construction which will promote the object in view and render them available to the grantees; that the very ancient and well-approved rule recognised by the Supreme Court of this state, in the case of Bacon v. Arthurs, 4 Watts, and Coram v. Erie & M. E. Railroad Co., 3 Casey, that a proviso that is apparently repugnant to the grant itself is to be so construed as to make it consistent therewith — if practicable, is at least as applicable to a bridge as to a railroad or mill-dam; and that to apply any other rule to the present case, where the state itself is shown to have been a large contributor to and builder of the work, and has since disposed of her interest therein to third persons, would be an act of injustice to the stockholders which would operate as a fraud upon them.</p> <p>5. That the proviso in the defendants’ charter, that they should not so erect their bridge as to injure, stop, or interrupt the navigation, was not intended to refer to exceptional cases of casualty; and if it has been shown that the navigation of the fiver by boats, rafts, or other vessels, has been in point of fact enlarged beyond all previous calculation, and successfully and profitably conducted in its enlarged state, since the erection of defendants’ bridge, it is thus shown that the bridge has not had the effect of either injuring, stopping, or interrupting the navigation of the river within the meanings of the Act of Assembly.</p> <p>6. That the comparative frequency or unfrequency of accidents in so large a trade, is the best practical evidence of the question, whether the navigation of the river has been injured, and of much greater weight than any mere opinions of witnesses.</p> <p>7. That the piers themselves not being obstructions per se, the loss of a boat created no presumption of nuisance, and does not relieve the plaintiff from the necessity of showing affirmatively that it was through no default of his own.</p> <p>9. That to constitute such an injury, stoppage, or interruption as is intended by defendants’ charter, it must be such an one as no reasonable amount of skill on the part of a navigator, armed with sufficient power to control the movements of his craft, could avoid.</p> <p>10. That if the craft employed was so awkward or unwieldy in its structure, and withal so deeply laden, as to render it .unmanageable by its crew, and so expose it entirely to the mercy of the currents, when a lighter freight or a larger crew would have prevented the disaster, it was a default of the plaintiff himself, and an accident resulting from such causes would not be chargeable to the defendant.</p> <p>11. That if the loss of the plaintiff’s boat was the result of a miscalculation on the part of the pilot, it would be an accident for which the defendants would not be liable.</p> <p>12. That the defendants were not bound to foresee or provide for the employment of a new vehicle of transportation altogether unfitted from its dimensions for the natural condition of the river, and created-and brought into use exclusively by means of an artificial improvement, made by third persons, in the navigation.</p> <p>13. That ordinary care is a term that depends upon the extent of the apparent dangers, the existing state of the elements ; and that at such points as present more than usual difficulties, the greatest possible care which the means and resources of a competent crew can apply, is no more than is required by the law, and that a necessity for such care created by the existence of an authorized bridge would not constitute an obstruction within the act, if the application of such care will enable a boat to pass in safety.</p> <p>14. That in view of the fact that there was at the time of the accident a strong wind and current, which made the boats more unmanageable than usual, it was incumbent upon the plaintiff, in the exercise of ordinary care, to employ more than the usual force or power to navigate his boat, while subject to such wind and current.</p> <p>The court below affirmed the 1st, 2d, 3d, 4th, 5th, 6th, and 8th of plaintiff’s points, and answered the remaining points of plaintiff as follows:—</p> <p>“ 7. The rule of damages will be the cash value of the boat and cargo at the time and place the injury occurred, with the interest thereon to the present time.</p> <p>“ 9. The facts supposed by this point may be taken into consideration by the jury in determining whether the company constructed their bridge in accordance with their charter, or not; but the mere opinions or fears of witnesses, unless supported by facts, are not conclusive upon the jury. They must decide upon all the facts in evidence, whether these piers are obstructions to navigation or not.</p> <p>“10. This point is affirmed, with this qualification, that the plaintiff may be affected also, by want of proper care and prudence in the construction, size, and loading of his boats. If owing ,to the great size of the boat and its being laden so heavily, or from want of a sufficient crew or skilful pilot, the boats are unmanageable, and if this contributed to the loss, the plaintiff cannot recover.</p> <p>“ 11. This point is affirmed if the jury take the opinions of the witnesses therein mentioned, as facts, but on making up their opinion as to whether these piers are, or are not, an obstruction, the jury will take into consideration all the facts in evidence bearing on that question.”</p> <p>The 6th, 9th, 10th, 12th, and 13th of defendants’ points were affirmed in terms, the 1st was negatived, and the remaining points disposed of as follows:—</p> <p>. “ 2. Refused as to the trade, affirmed as to the channel.</p> <p>“ 3. This is affirmed, provided it did not, at the time of its erection, injure, obstruct, or stop navigation. Defendants would not be responsible for any change in the channel, occasioned by causes or influences over which they had no control.</p> <p>“4. The doctrine stated in this point is no longer correct (if it ever was), since the opinion of the Supreme Court in Dugan’s Case.</p> <p>“ 5. Under the decision of the Supreme Court before referred to, the proviso must be construed literally — that if the erection of their piers injured, interrupted, or stopped the navigation for coal-boats, then the defendants have exceeded the privileges conferred by their charter, and would be liable.</p> <p>“ 7. As a general rule, the burthen of proving negligence rests on him who asserts it; but when the obstruction in a navigable river is not a nuisance per se, as has been decided by the Supreme Court in relation to these piers, it is incumbent upon the plaintiff to prove that due care and caution were used by him, before he can recover.</p> <p>“ 11. This point is affirmed, provided that the miscalculation arose from any want of care or skill on the part of the pilot.”</p> <p>In the general charge the learned judge in the court below said—</p> <p>“ Although the learned counsel in this case have presented no less than twenty-five points, for the instruction of the court, there are but three questions that can be submitted to the jury, under the law laid down by the Supreme Court, in the case of Dugan against this company (3 Casey 303).</p> <p>“ 1st. Whether there was negligence on the part of the plaintiff, in the construction or loading of his boat, or on part of the pilot and crew in navigating the same, which contributed to its loss ?</p> <p>“2d. Whether the piers of the defendants’ bridge injured, stopped, or interrupted the navigation of the river for coal-boats ? and</p> <p>“ 3d. What amount of damage the plaintiff sustained by the loss of his boat and its cargo ?</p> <p>“ If there was negligence on the part of plaintiff, his pilot or crew, he cannot recover, no matter whether the defendants were right or wrong in placing their piers in the bed of the river. If there was no such negligence, then the jury will inquire whether the piers are an obstruction to coal-boat navigation: if they are not, the plaintiff cannot recover. But if they are, and if there was no negligence on the part of the owner, or the pilot and crew, tnen the plaintiff will be entitled to recover, and the measure of damages will be the cash value of the boat and cargo, at the time and place where the loss occurred, with the interest thereon till the present time.”</p> <p>Under these instructions,there was a verdict and judgment in favour of the plaintiff. Whereupon this writ was sued out, and the answers given to plaintiff’s 1st, 3d, 4th, 6th, 9th, 10th, and 11th points, and the answers to defendants’ 1st, 2d, 3d, 4th, and 5th points, were assigned for error.</p> <p>The defendant also assigned as cause for reversing the judgment of the court below, that the proceedings in the case were coram non judice, the District Court of Allegheny county not having jurisdiction of the case stated in the plaintiff’s declaration.</p>

<p>Liability of administrator to supplementary account, and for uncollected claim due to deceased.</p> <p>1. An administrator who receives assets of the estate of Ms decedent after he has filed an account, should file a supplementary account thereof: and if he neglects or refuses, he may be compelled so to do by citation from the Orphans’ Court. A bill of review is not the proper remedy.</p> <p>2. Where an administrator d. 6. n. postpones the collection of a debt due by a debtor, who was' solvent when letters of administration were granted, for several years and until the debtor’s insolvency, he is chargeable therefor, and the debt is assets of the estate, for which he may be compelled to account by citation.</p> <p>3. It was not a valid defence for the administrator that time had been given to the debtor by the widow and devisee of the deceased, where no definite extension of time was shown to have been fixed and granted by her,</p>

<p>Error to the Common Pleas of Allegheny county.</p> <p>This was an action of assumpsit brought, December 1862, by Robert O. Schmertz and James Blakely, doing business as Schmertz & Blakely, against J. E. Keeler, W. A. McClurg, and - Johnson, partners trading as J. E. Keeler & Co. The plaintiffs claimed under the following -contract:—</p> <p>“ Pittsburgh, Sept. 18th 1862.</p> <p>“ Received of Schmertz & Blakely, their notes at four months, with interest, for $200. We agreeing to furnish forty barrels of white oil that will, stand a temperature of 120. Fifteen barrels of said oil having been delivered in store this day per agreement. Balance of said oil to be paid for so soon as all the oil shall have been delivered. Said oil to cost 25 cts. per gallon, and $li%°g per package. Packages to be returned and paid for at the rate of $2,%% each. Said oil to be exported.</p> <p>J. E. Keeler & Co.”</p> <p>The remaining twenty-five barrels of the oil were not delivered.</p> <p>On the trial, the plaintiff read the following specification of his claim, which had been filed with his prceeipe under a rule of court which provided that if such statement be filed, the material averments therein not directly traversed or denied by the affidavit of defence, shall be taken as admitted:—</p> <p>That under and by virtue of a contract in writing, between said plaintiffs and said defendants, a true copy whereof is hereto annexed and made part of the affidavit, wherein the said.defendants promised, and agreed to sell and deliver unto said plaintiffs forty barrels of white oil, that would stand a temperature of 120°; fifteen barrels of lard oil were then delivered to said plaintiffs, under said agreements; and the residue of said oil, to wit, twenty-five barrels, to be delivered upon demand, free and clear of all the excise tax, for the purpose of exportation by plaintiffs, at and for the following prices, to wit: 25'cents per gallon, if delivered in barrels, and 50 cents per package for said oil delivered in packages; the packages to be paid for by the defendants, at the rate of 35 cents each. In consideration whereof, the said plaintiffs promised and agreed to deliver to said defendants their (plaintiffs’) promissory note, at four months from date of sa-id contract, with warrant, for the sum of $200, and pay the residue of the price of said oil, or the rate aforesaid, when all the oil aforesaid was delivered in plaintiffs’ store. And said plaintiffs further say, that they did deliver to defendants, on the 18th- day of September 1862, their certain promissory note, to defendants’ order, at four months, for the sum of $200; and said plaintiffs have at different times since the date of said contract, demanded from said defendants the residue of said oil; and on the 21st day of November 1862 caused a written notice to be served on them, demanding the delivery of the residue of said oil, to wit, twenty-five barrels; but they, the said defendants, have wholly refused to deliver the residue, or any part thereof. Affiant further says that the residue of said oil agreed to be sold as aforesaid, and which defendants refused to deliver, amounts to eight hundred gallons, which, at the contract price of 25 cents per gallon, amounts 'to the sum of $200 for said oil, and $37.50 for said barrels, which said plaintiffs were always ready and willing to pay defendants, upon delivery. That oil of like quality and temperature is now worth in the market the sum of 80 cents per gallon, or in packages the sum of 85 cents per gallon; whereby the difference of $442.50 has accrued to the plaintiffs, by reason of the promises which the said defendants now are indebted and owe the plaintiffs, and further saith not.</p> <p>The court below, on motion of defendants’ counsel, allowed defendants to ■ file a supplemental affidavit of defence, wherein they averred “that the oil was: sold subject to the tax, and that at the time of the demand it was not worth more than 50 cents per gallon.”</p> <p>The court granted leave to file this affidavit, but made an order “that the same should not be taken to require plaintiffs now to go into proof of any material facts averred in their affidavit of claim, and not previously denied, before they had concluded.”</p> <p>The defendant offered to prove by oilmen, experts, that the words in the agreement, “said oil' to be exported,” meant, in the terms of the trade, that the tax was to be paid by the purchaser; to which plaintiffs’ counsel objected. The court below sustained the objection and rejected the offer.</p> <p>When the testimony was closed the defendants requested the court to instruct the jury,</p> <p>1. That the demand for the oil was not made in a reasonable time, therefore plaintiffs cannot recover.</p> <p>2. That defendants having tendered the oil January 15th 1863, which was refused- by the plaintiffs, the plaintiffs cannot now recover anything more than costs.</p> <p>3. That as there was no time fixed for the delivery of the oil, the price at or about the time of the agreement is the price to fix the damages.</p> <p>4. That plaintiffs could not wait until oil advanced, and then make a demand and claim damages at that price.</p> <p>5. That by the terms of the agreement the oil was sold subject to the tax.</p> <p>6. The plaintiffs not having proved that they made a tender of the price of the oil at the time of demand, they cannot recover.</p> <p>The court below answered the points as follows:—</p> <p>“ 1. Negatived. I think that upon a fair construction of the contract, the fact that the vendor did not deliver, nor the vendee demand the oil, for two months and three days, without other evidence, will not warrant the inference that the contract was either rescinded or abandoned. I think the delay was not so great as to warrant any such inference, and I will not therefore submit it as a question to the jury. '</p> <p>“ 2. Negatived.</p> <p>“ 3. Negatived. Under this contract the vendors might have delivered at any time after the contract was made. If they had done so it would have relieved them from further responsibility. Not doing so, in contemplation of the contract, the goods being deliverable in parcels, as long as the vendee made no demand, it cannot be inferred the contract was broken by the vendor; but so soon as a demand was made by the vendees, and a refusal to deliver by the vendor, the contract was broken, and it is as of time of breach of contract, the damages are fixed. Non-compliance with a demand to deliver, and no proposal to comply till after suit brought, it is too late then for defendant to retrieve his position. So soon as a demand was made, and it appeared the defendant had no intention of immediate compliance, the plaintiffs had a right to regard the contract as broken, and make their arrangements accordingly.</p> <p>“4. Negatived. They might do so, and might have supposed it was an obligement on their part not to demand compliance with the contract until the vendor found it convenient to perform. As the vendor had it in his power to perform without asking the vendee’s leave, the vendee might well suppose it was for the vendor’s convenience the delay was incurred. No demand was necessary to enable vendor to deliver, and relieve himself of the risks of fire or leakage, or a rise in prices.</p> <p>“ 5. Negatived. This, I take it, refers to the expression in • the contract — ‘ said oil to be exported,’ which means this (if it means anything), viz.: That the vendors or manufacturers having paid the internal revenue tax, or ten cents per gallon, or secured it, claimed or reserved to themselves the drawback consequent on exportation; and that it was therefore the duty of the vendee under the contract, to export the oil so as to enable the vendor or manufacturers to make out their claim to the drawback; but as to the fifteen barrels delivered, we have no evidence that it has not been exported, to make it a set-off or equitable defence here to the damages claimed for non-delivery of the residue. The defendant should show that the plaintiff has not complied with his contract in that respect, if he predicates anything upon it. And as to the twenty-five barrels not delivered, the defendants can claim nothing from the fact that it was not exported by plaintiffs. The plaintiffs bought for exportation, and whatever they could have obtained for it for exportation at the time of demand made, is the criterion by which the damages are to be governed. ■</p> <p>“6. It was not iiecessai’y for plaintiffs to tender the price before the defendants had complied, or at least showed they were ready and willing to deliver the last of the oil.”</p> <p>Under these instructions there was a verdict and judgment for the plaintiff. This writ was then sued out by the defendants, who assigned for error the rejection of the evidence of experts above mentioned, and the refusal of the court below to affirm the points submitted.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action of assumpsit, by James S. Craft against Joseph Fleming, to recover the amount of a promissory note, drawn by William O. Leslie, and endorsed by the defendant, of which the following is a copy, viz.:—</p> <p>“ $300. “ Pittsburgh, October 18th 1861. •</p> <p>“ Four months after date, I promise to pay to the order of Joseph Fleming, $300, at Farmers’ and Mechanics’ Bank, Philadelphia, without defalcation, value received.</p> <p>(Signed) “ W. O. Leslie.”</p> <p>Endorsed: “ Joseph Fleming, without recourse ■ to me, Joseph Fleming.”</p> <p>The note thus drawn and endorsed, was purchased by the plaintiff early in the month of December 1861, of Isaac Gr. Sproul, who testified that he was not negotiating it for the defendant, J. Fleming, but that he was negotiating it for Austin Loomis, then doing business as a broker in the city of Pittsburgh. It was presented for payment in the Farmers’ and Mechanics’ Bank of Philadelphia, at maturity, February 21st 1862, and duly protested for non-payment, of which the defendant was notified by mail.</p> <p>The note in question was given to the defendant by Leslie, to take up a protested note drawn by J. F. McKenzie, which he had previously endorsed, and of which the following is a copy:—</p> <p>“ $300. “ Pittsburgh, July 11th 1861.</p> <p>“ Ninety days after date, I promise to pay to the order of W. O. Leslie, Esq., $300, payable at M. and M. Bank, Pittsburgh, without defalcation, value received.</p> <p>(Signed) “J. F. McKenzie.”</p> <p>Endorsed: “W. O. Leslie.”</p> <p>The defendant received this last-mentioned note from J. F. McKenzie, as collateral security for the payment of his note for $100, and at the same time gave him this receipt:—</p> <p>“Received, July 11th 1861, of J. F. McKenzie, a note of his for $300, dated July 1861, endorsed by W. O. Leslie, as collateral security for the payment of his note for $100, at thirty days, which said first described note I agree to surrender upon payment of said $100 by said McKenzie.</p> <p>(Signed) “ Joseph Fleming.”</p> <p>The following is a copy of the note referred to in the receipt:</p> <p>“ $100. “ Pittsburgh, July 10th 1861.</p> <p>“ One month after date, I promise to pay to the order of Joseph Fleming, $100, at Iron City Bank, without defalcation, value received.</p> <p>(Signed) “ J. F. McKenzie.”</p> <p>The note of which the above is a copy, was paid by McKenzie, but whether he paid it before or after the note in controversy was given and endorsed, did not appear. The evidence showed that it must have been paid by McKenzie as early as December 1861, for some time during that month he delivered it to Leslie. When Leslie gave the defendant the note in controversy, he received from him the note for $300, which he had endorsed for the accommodation of McKenzie, and which the latter had hypothecated for the payment of his note for $100 as before mentioned.</p> <p>The plaintiff’s declaration contained four counts, viz.:—</p> <p>1. Against defendant as endorser generally of the note to one Joseph Fleming, who endorsed it “without recourse” to the plaintiff.</p> <p>2. Against the defendant as general endorser to plaintiff, and as endorsee of one Joseph Fleming, who had endorsed it to him “without recourse.”</p> <p>3. Against the defendant as endorser to plaintiff “without recourse,” “ for value received in money, to wit, $294.” “ And the said plaintiff further avers, that at the time of the making and endorsement aforesaid by said defendant of said promissory note, and from thence until and at the time appointed for the payment thereof, and ever since, the said William O. Leslie had not in his hands any of the effects of the defendant, and the consideration for which said note had been given to said defendant by said maker had entirely failed, and become satisfied by the payment thereof to said defendant, to wit, at the county aforesaid ; and the said defendant, at the time aforesaid, and ever since, had no right to said note, or to the sum of money therein mentioned, nor did the said maker owe to him the same, or any part thereof. Nevertheless the said defendant, well knowing these premises, fraudulently and deceitfully endorsed said note as aforesaid, and obtained thereby and thereon from the plaintiff the value of said note in money, to wit, the sum of $294, as aforesaid, to wit, at the county aforesaid, and on the day of the date of said note as aforesaid.” This count concluded with charging a liability by defendant upon the premises, and in consideration thereof, a promise to pay, &c.</p> <p>4. The common counts for money paid, &c., and for money had and received, &c.</p> <p>To all which defendant pleaded non assumpsit, and filed the following affidavit of defence:—</p> <p>“Allegheny County, ss.</p> <p>“Joseph Fleming, defendant in the above case, being duly sworn, saith that he has a just and legal defence to the whole of the plaintiff’s demand in the above suit, in this that he, the defendant, added to his endorsement the words, ‘ without recourse to me,’ thereby rendering himself a qualified endorser, and not liable in the event of its not being paid by the maker; and further deponent saith not. Sworn, &e.</p> <p>(Signed) “ Joseph Fleming.”</p> <p>On the trial, the plaintiff gave in evidence the three notes, protests, and Fleming’s receipt and agreement of July 11th 1861; and proved by Leslie that this $300 note of October 18th was given to lift and renew McKenzie’s note for $300, dated July 10th 1861, which he had endorsed for McKenzie’s accommodation. He also testified to his ignorance of the $100 note, and Fleming’s agreement of July 10th 1861, until some two months after he gave his note of October 18th.</p> <p>The defendant proved by I. Gr. Sproul, how Mr. Craft got the note of October 18th, and what he paid for it.</p> <p>It being admitted by the counsel on both sides, that there was no fact in dispute for the determination of the jury, and it being agreed that the evidence on both sides should be taken to be true, the court, with the consent of counsel on both sides, instructed the jury to find a verdict for the plaintiff, for the amount of the note sued on, with interest and cost of protest, subject to the opinion of the court in banc upon the question of law reserved, viz., whether the plaintiff, under the pleadings in the case and the facts established by the evidence, taking the same to be true, is entitled to recover, and if so, judgment to be entered in his favour for the amount found by the jury; but if the court should be of opinion that the law is with the defendant, judgment to be entered in his favour, non obstante veredicto.</p> <p>Upon rendering judgment for the defendant, the court below (Williams, A. J.), delivered an opinion, in which, after a full statement of the facts of the case, he added:—</p> <p>“The defendant incurred no responsibility by the blank endorsement of the note, for before his transfer he limited and restricted his liability by the qualified endorsement. When, therefore, the plaintiff purchased the note, he took it upon the responsibility of the maker alone, with the express understanding that the defendant had incurred no liability by his endorsement. Whether the maker has a valid defence to the note or not as against the defendant, is wholly immaterial as it respects the rights of the plaintiff. In either case the plaintiff’s condition is neither the better nor the worse. If the defendant could not recover the amount of the note from the maker, it is clear that the plaintiff can.</p> <p>“ The defendant endorsed and transferred the note either before or after the payment of the McKenzie note. If before, then he was guilty of no fraud, although he may be ultimately responsible to the maker in case the latter is compelled to pay the note. If after his endorsement and transfer of the note, it may have been fraudulent. But against whom was the fraud committed ? Certainly not against the .plaintiff, for he has got all he bargained for, viz., the right to demand and receive payment of the note from the maker. He did not receive the note from the defendant, nor pay him any consideration therefor — his rights as against the maker were not prejudiced by anything done or omitted by the defendant. Even the qualified endorsement, the only act done by the defendant affecting the rights of the plaintiff, was not sufficient to put him on inquiry as to the consideration of the note, and to open the door for a defence by the maker. If, then, the defendant defrauded any one by the endorsement and transfer of the note, it was the maker. Admitting, what the evidence by no means shows, that the defendant was 'guilty of a fraud on the maker by the endorsement and transfer of the note, he would doubtless be liable to the maker for the injury done him thereby. But what right has the plaintiff to complain of a fraud which can possibly do him no harm ? The maker himself could not maintain an action against the defendant without first paying the note, and if he could, the plaintiff is not his representative, nor is he clothed with or entitled to be subrogated to his rights. If, then, the plaintiff has not been defrauded by the defendant; if his rights have not been impaired; if he has all he bargained for when he purchased the note, what possible ground has he upon wffiich to stand in order to maintain an action ? If the note had been forged, the case would be different, but as it is, the plaintiff is not entitled to recover.</p> <p>“Let judgment be entered for the defendant on the reserved question, non obstante veredicto.”</p> <p>The plaintiff thereupon sued out this writ, averring that the court below erred in rendering judgment for the defendant, non obstante veredicto ; and in not rendering judgment for the plaintiff on the verdict.</p>

<p> Validity of judgment which by agreement was to be entered only in a particular county. </p> <p>1. If the obligee in a judgment agree, at the time it is signed, not to enter it up in a county named, and afterwards enter it in that county, the breach of agreement is an irregularity, of which the obligor only can complain: and if he take no steps to correct it, it is binding upon him and all other persons.</p> <p>2. Where, after the entry of a judgment given under such a condition, the obligor sold his land, and the judgment was revived by scire facias, without objection on the part of the obligor, and with notice to the purchaser as terretenant; and the land was afterwards sold on execution issued upon it, the holder of the judgment is entitled to payment out of the proceeds of the sheriffs sale, in preference to an assignee of mortgage-bonds taken by the obligor when he sold the land.</p>

<p>History of the law relating to swine running at large. — Redress of property-owners for injury done.</p> <p>1. The remedy for injury to property done by vagrant hogs is either under the Act of 1862, if defendent permitted his hogs to run at large, and the stray laws of Í807 and 1819: or under the Act of 1808, if the plaintiff's fences were “ neighbour-like,” even if the swine were accidentally at large: or by the common law remedy by action of trespass, which is not repealed by the stray laws in force.</p> <p>2. The remedy under the Act of 1808 is impracticable in requiring damages to be determined by referees to be appointed, without declaring their number, when or by whom they are to be appointed.</p>

<p>Error to the Common Pleas of Allegheny county.</p> <p>This was an action on the case brought by Sarah C. Lichtenthaler, widow of John Liehtenthaler, deceased, and Amanda, Jane, and William David Liehtenthaler, minor children of said deceased, by their next friend William Kennedy, against Charles Lockhart and William Erew, to recover damages for causing the death of John Liehtenthaler. The suit was brought under the provisions of the Act of April 15th 1857.</p> <p>The deceased was employed as a brakesman upon certain coal-cars owned by Dickson, Stewart & Co., which were being run over the Allegheny Yalley Railroad, by a locomotive belonging to the company, and in charge of the company’s engineer and. conductor, and while acting as brakesman on the coal-cars on the 22d of November they were thrown from the track, and he was killed.</p> <p>The train consisted of fourteen cars, six or seven of which were in front of the engine, and the remainder in its .rear. Liehtenthaler was standing on the platform of the second car from the front of the train.</p> <p>The plaintiffs averred and offered testimony to show that the train ran against some empty oil barrels belonging to the defendants, which had been placed so near the track as to come in contact with the front car; that the car ran over a barrel as it stood near the track, and was thereby thrown off.</p> <p>The following propositions were submitted by the parties, on which the instructions of the court were requested.</p> <p>The plaintiffs requested the court to charge the jury,</p> <p>1. That the condition of the railroad, the rate of speed of the coal-train, or the manner of running or propelling the coal-train, are of no consequence in this inquiry, unless the jury believe, from the evidence in the case, that they contributed to the death of John Liehtenthaler, and that he participated in the negligence which promoted his own death.</p> <p>2. If the jury believe that the barrels placed near the line of the railroad track by the employees of the defendants, were, in the language of the plaintiffs’ witnesses, “ the cause of the death of John Lichtenthaler,” it is wholly immaterial whether the train ran fast or slow, or whether the track was in good or had order.</p> <p>3. That the evidence of unimpeached witnesses, stating positively and certainly the cause of the disaster, should, in the absence of any other satisfactory evidence- of its cause, control the verdict of the jury..</p> <p>4. If the jury should he of the opinion that the plaintiffs are entitled to recover, the measure of damages is compensation; and compensation “ includes whatever is susceptible of pecuniary estimate; and excludes whatever -is not susceptible of a pecuniary estimate;” and that the sound discretion of the jury must be exercised within the limits of the law of compensation.</p> <p>The defendants’ points were as follows :—</p> <p>1. That it devolves upon the plaintiffs to show, to the satisfaction of the jury, by the evidence given in the case, that the death of Lichtenthaler was occasioned by the negligence of the defendants’ employees, in placing oil-barrels so near the track as to throw the train off on which he was, and that this was the sole and only cause of the disaster.</p> <p>2. That if the jury believe, from the evidence, that the dangerous rate of speed at which the train was run over the road, at and near the place of the accident, contributed to produce the disaster, resulting in the death of Lichtenthaler, the defendants are entitled to a verdict.</p> <p>3. If the jury believe, from the evidence, that it leaves it doubtful in their minds whether the accident resulted from the rapid running of the train over the road, when in bad condition, or from the oil-barrels being so' near the track as to have thrown the train off, the defendants are entitled to a verdict.</p> <p>4. If they are satisfied, from the evidence, that if the train had been run at or near the place of accident, at a less rate of speed than it was, and by so doing the accident would not have happened, the plaintiff cannot recover.</p> <p>5. If they believe, from the evidence, that the engineer of the train was guilty of any negligence, which contributed to produce the death of Lichtenthaler, the plaintiff cannot recover; the negligence of the engineer being the negligence of the deceased.</p> <p>6. Even if the jui-y believe, from the evidence, that defendants’ employees did place the barrels so near the track as to throw the train off, the defendants are not liable for their act in so doing, and defendants are entitled to a verdict.</p> <p>7. If the jury believe, from the evidence, that the death of Lichtenthaler may have resulted from the train being thrown from the track, by the rapid running of the train, the bad condition of the road, or the defective condition of the cars, the defendants are entitled to a verdict.</p> <p>The court below affirmed the 1st, 2d, and 4th points of plaintiffs, and answered the 3d as follows: — ;</p> <p>“ The jury are the exclusive judges of the weight of evidence and the credibility of witnesses, but positive and certain testimony should always receive more consideration than what is loose and unsatisfactory. The jury should decide according to their opinion of the weight of the evidence.”</p> <p>The defendants’ points were thus disposed of:—</p> <p>“ 1. If this point means that the ‘ sole and only cause of the disaster’ was the throwing of the train from the track, and thus occasioning the death of the deceased, the point is affirmed as it stands; but if it is intended to mean that the plaintiffs cannot recover, if any other thing, such as fast running, bad track, or other cause, somewhat contributed to the accident, though they did not cause it, the point is answered in the negative.</p> <p>“ The 2d point is refused. If you believe the placing of the barrels, as alleged by plaintiffs, caused the accident and death of the deceased, the fact that the dangerous rate of speed of the train contributed to the accident, will not prevent plaintiff’s recovery.</p> <p>“ 3. If the evidence leaves the question so doubtful that they cannot arrive at any opinion in reference to it, you should find for defendants. You are not bound to be satisfied beyond a doubt, to enable you to decide in favour of plaintiffs; you should be governed by the weight of the evidence.</p> <p>“4. If the cars were thrown from the track by the barrels, as alleged by plaintiffs, the fact that the accident might not have occurred if the train had not been running so fast, will not relieve defendants, and prevent plaintiffs’ recovery in the case.</p> <p>“ The 5th and 6th points are refused.</p> <p>“ 7. Striking out the words ‘ may have,’ in the point, it is affirmed. It is of no importance what may have resulted, provided it did not result or happen. If the rapid running of the train, the bad condition of the road, or defective condition of the cars, some or any of them, caused the accident which resulted in Lichtenthaler’s death, plaintiffs cannot recover. As already stated, you must find from the evidence that the acts of defendants’ servants caused the accident, before you can find for plaintiffs.”</p> <p>In the general charge, after stating the main facts, the learned judge said:—</p> <p>“ The main question in the case arises — Was the death of Lichtenthaler occasioned by the negligence of the defendants ? It is not alleged by plaintiffs, that either of the defendants, personally, were directly instrumental in throwing the cars from the track; but it is said, their servants and agents, whilo employed in the regular business of defendants, were, and that they are responsible in this action for the acts of their agents and servants. If you should find, from the evidence, such to be the case, that is to say, that whatever occasioned the accident, was placed upon the track of the railroad, or so near to the track, that the ears in the train that went off, necessarily struck it, by the servants or employees of defendants, in the exercise of their proper duty and business, the acts of the servants or employees are, in law, the acts of the defendants themselves, and they must be held responsible therefor.</p> <p>“Did, then, the servants or employees of defendants, as is alleged by plaintiffs, place oil-barrels, or an oil-barrel, so near to the track- of the railroad, that the train upon which deceased was, struck it or them, and was thrown from the track, thereby occasioning his death ? This is a question of fact, entirely for the jury, and upon your determination in reference to it, depends the necessity for considering or not, other questions in the case. If you should find that defendants’ servants or employees did not place anything so near the track as to be the occasion of the cars being thrown from it, then your verdict must be for the defendants. It is not a question for you to decide now, what was the immediate cause of the accident, but simply whether the evidence is sufficient to satisfy you, or justify you in coming to the conclusion, that the acts of defendants’ servants were the cause of it. If the testimony will not warrant you in so finding, it is, so far as we are concerned, a matter of no moment, that the real cause remains for ever undetermined.</p> <p>“ In considering this question, you will bear in mind all the facts testified to by the several witnesses on both sides, which may tend to throw any light upon it, and calmly and dispassionately come to such conclusion as the evidence will warrant.</p> <p>“ If, however, you shall determine that the cars were thrown from the track by barrels placed so near the track, that the cars struck them, or some of them, in passing, thus causing the accident, then the question of negligence arises. Ordinarily, this is also a question for the jury; but, sometimes, it is a matter of law, and it becomes the duty of the court to so state to the jury.</p> <p>“This cause, under the allegations of the plaintiffs, raises a question of the latter kind, and it is obligatory upon us to instruct you (what is, however, too plain a proposition to be questioned), that the placing of a barrel or barrels, or other like obstructions, upon a railroad track, and allowing them to remain, so near as to be struck by a passing train of the kind usually run upon the road, is negligence in law, and of the grossest character. So that if the plaintiffs’ allegations are true, in reference to the cause of the cars being thrown from the track, negligence in the parties placing tlie obstructions upon the track, follows, as a conclusion of law, for which defendants are responsible; and plaintiffs have shown sufficient to enable them to recover, provided there is nothing else in the cause which will prevent it.</p> <p>“ [But besides the defence denying the allegation of plaintiffs, in regard to the cause of the accident, defendants say, that even if you are satisfied that they were the occasion of the death of deceased, as charged by plaintiffs, still he was in the employment or under the control or charge of the Allegheny Yalley Railroad Company; that those under whose management the train was, at the time he was killed, were guilty of negligence; and that, therefore, no recovery can be had in this case.</p> <p>“ This proposition raises two questions, the one of law, the other of fact. If we agreed with the law, as urged by defendants, upon this point, it would be for you to say whether deceased was, at the time of his death, in the position of employee of the railroad company, or not; but, as our opinion of the law is entirely different from defendants’, this question cannot enter into your discussions.] It is a well-settled rule of law, in this state, that where several persons .are employed, as workmen or employees, in the same general service, and one of them is injured through the carelessness of another, the employer is not responsible, either to him, in case he survives (Erazier v. Pennsylvania Railroad Co., 2 Wright 104), or to his heirs or representatives, in case of death; and also, that wherever an accident, occasioning injury or loss, is the result of the mutual negligence, carelessness, or imprudence of the party injured and the defendants, neither he nor any one else can sustain an action to recover damages for or by reason of the injury or loss.</p> <p>“[Where both parties are in the fault, there can be no recovery, and the law will not stop to weigh the amount of negligence on either side. But where there are two or more persons engaged in the same service, and one of them, without the concurrence of the other, by his negligence, contributes to an injury occasioned by a third person, the party injured may sustain his action against the third person, although his co-employee, who contributed to the accident, could not. In such case, the injury could not be made the foundation of any action against the common employer. Yet, if it was not, in any degree, the fault of the one injured, personally, the plaintiff will not be affected by the negligence of his fellow-servant, in his action against the other occasioning the damage.</p> <p>“ To come directly to the case in hand — even if deceased were in the employ of the Allegheny Yalley Railroad Company, as brakeman on the train thrown from the track, and by which he was killed, and he did not in any wise contribute to the accident, by want of care, attention, or prudence ; and if it cannot, in any degree or manner, be aseribable to his own negligence, due regard being had to all the circumstances of his position and circumstances at the time, and the workmen or servants of defendants placed barrels along- the railroad track, so close as to be struck by the train in passing, thus occasioning the accident which resulted in the death of John Lichtenthaler, the plaintiffs may recover, even though the others upon and in charge of the train, one or all, were guilty of such want of care or prudence as would amount to negligence on their part, of such character as would prevent their recovery in a suit against the same parties, in case they had been injured at the same time.]</p> <p>“ You will, then, gentlemén, be called upon in the first place to pass upon this question:</p> <p>“ Was the train thrown from the track by barrels placed on or near it by workmen of defendants ?</p> <p>“ If you so find, then you will examine,</p> <p>“ 2d. Whether the accident can in any degree he ascribed to the negligence, or want of care or attention, of deceased.</p> <p>“ If, upon a careful examination of and reflection upon all the evidence in the cause bearing upon these questions, you should conclude that the train was thrown from the track, and the accident occasioned by the workmen of defendants as claimed' by plaintiffs, and that deceased did not in any degree, by his negligence or want of care or attention conduce to the accident, you will then come to the question of damages. But if you are of opinion from the testimony that the accident was occasioned in some other way, or if in that way, that the deceased in some degree contributed to the accident by his negligence of want of care or attention, your verdict in either case must be for defendants.</p> <p>“Upon the question of damages, if you should find the-facts in favour of the plaintiffs, we will remark that there is no evidence in the cause which would justify you in imposing upon defendants what are called vindictive or exemplary damages, and the measure which you will apply to the testimony will be what the Supreme Oourt of the state have fixed for your guidance in such cases.</p> <p>“ It is this: the measure of damages should be what plaintiffs have lost in a pecuniary point of view, by the death of the husband, to wit, a reasonable support and subsistence for herself apd children, in the manner in which she was accustomed to live with her husband, and such sum only as will secure such support and maintenance should be allowed. In estimating the amount for such support and maintenance, the jury are permitted to go beyond the sum which would yield a scanty supply to her support, and may give what, under the evidence, they believe would be fair and reasonable, taking into consideration the manner in which the family had been supported by the husband. They must not, however, take into consideration the mental suffering occasioned to the survivors, by the death, and nothing may be allowed as a solatium or solace for grief, that being incapable of a pecuniary estimate, nor for injuries of the injured party, but they are to be confined to sufferings of which a pecuniary estimate can be made, such as we have already mentioned, and also such actual expenses as may have been incurred in consequence of the injury received, as funeral expenses and the like: Pennsylvania Railroad Co. v. Ozier, 11 Casey 69.”</p> <p>Under these instructions there was a verdict and judgment in favour of plaintiffs. Whereupon the defendants sued out this writ, and assigned for error the refusal of the court to affirm the first, second, fourth, and fifth points submitted on the trial, and so much of the general charge as is printed above in brackets.</p>

<p>Appeal from the District Court of Allegheny county.</p> <p>This was an appeal, by Thomas Mellon, from the decree of the court below distributing the proceeds of the sheriff’s sale of the real estate of William A. Maguire.</p> <p>The fieri facias under which the real estate was sold, was sued out on a judgment in the name of John C. Maguire, for the use of W. Crawford, and now for the use of Thomas Mellon against William A. Maguire, to which the sheriff made the following special return:—</p> <p>“ Levied, &c., on a piece of land, twenty-seven acres, situate in Lower St. Clair township. Inquisition waived (in condition of the bond), &c., and sold to Thomas Mellon for §3115; and by the lists of liens from the proper records, he appearing to be entitled to the proceeds of sale, and having paid the costs, &c., I have, pursuant to the Act of Assembly, taken his receipt for the residue of the proceeds of sale upon this writ, &c.</p> <p>“ May 29th 1858. “R. Patterson, Sheriff.’”</p> <p>To' this return the following exceptions were filed on behalf of Captain James McGargill, administrator of Elizabeth Maguire, widow of J. O. Maguire, and on behalf of the said James Mc-Gargill and children, and also for the executors of J. C. Maguire, viz:</p> <p>1. “ The money should be appropriated to prior liens under the will of James C. Maguire against said property, as per proceedings in the Orphans’ Court, and auditor’s report, by Hepburn, confirmed by that court.”</p> <p>2. The debts of James Maguire, deceased, are the first lien. The questions raised had regard to the existence, priority, and continuance of the lien of testator’s debts on his real estate, and the right of subrogation claimed by the executors of the will for the specific legatees, to the rights of the creditors whose debts were alleged to have been paid out of the specific legacy fund; and also the .rights of the lien-creditors of residuary devisees as against specific legatees, where sufficient personal and other assets existed to pay all debts, expenses, and legacies, but which it was alleged were wrongfully distributed and in part left unadministered by the executors, with the acquiescence and through the supineness and negligence of the specific legatees themselves.</p> <p>The court below, on these exceptions, referred the case to George F. Gilmore, Esq., as auditor, agreeably to the Act of Act of Assembly in such case, who reported that he derived the facts on which he based the distribution of the funds in this case mainly from the accounts of the executors of James O. Magliire, as filed in the Orphans’ Court; from the reports of Judge Hepburn and J. P. Penny (and -testimony therewith), who were at different times appointed to audit said accounts, and from the return and list of liens, together with some facts derived from the statements of the parties and-their counsel.</p> <p>The main facts were stated by him-to be as follows:</p> <p>James C. Maguire died in December 1850, leaving a will, by which he disposed of his whole estafe’ aS follows:</p> <p>He gave to his wife Elizabeth, for life, about six acres of ground, with the dwelling-house, .being part of his farm, excepting the coal under it; also her household furniture, clock, case, privilege of pasturage, and after her decease he directed that the portion of the real estate given her • for life be sold by his executors, and the proceeds thereof divided among his children, share and share alike; also the coal' under said piece of ground to be sold at the same time by his executors, and the proceeds thereof divided among all his children, except James and Ellen.</p> <p>He also devised to his two daughters Bridget (Mrs. Davis) and Jane (Mrs. Holmes), each five acres of land for their sole use. He gave to his son Charles all the land on the “ Wild Hill,” &c., and certain clothing, and to Ellen McGargill $100, to be paid to her out of the proceeds of his real and personal estate when that amount shall be realized.</p> <p>He gave to his grandson, James A. Maguire, $100, to be paid to him on his arriving at the age of twenty-one, without interest.</p> <p>He then devised to his sons, William A. and John C., under the foregoing provisions, and subject to .-the payment of the following amounts, all the residue of his estate, real, personal, and mixed, however and wheresoever situate,.lying, and being, and to their heirs and assignees for ever — to his grandson, C. Holmes, he gave $100, charged upon the real estate devised to his sons, William A. and John C., and payable out of the proceeds of the sale of the same; and with the further proviso and exception that all the money due to him at the time of his decease from Hugh Smith & Son, for coal sold to them, shall be equally divided, share and share alike, with all hi^ children, or their legal representatives.</p> <p>These were the main provisions of the will with which this case had any concern.</p> <p>Judge Hepburn, in his report, stated that “ the testator had left no personal property except that referred to and especially bequeathed in his will, unless it was a debt due him by his son, John C., and a small amount of rent due himand added, “the testator was indebted at that time in a sum amounting to about $Í200, a part of which was raised to purchase land, but was diverted for the discharge of a debt .contracted for his son, John C.”</p> <p>The money coming from Hugh Smith & Son for coal, was specifically devised or bequeathed to all the children and their legal representatives, share and share alike, and amounted to the undivided half of about twenty-three acres, at $400 per acre. A part had been taken out and paid for in the testator’s lifetime; the balance was received since by the executors, as appeared by their accounts filed.</p> <p>The will authorized the executors to receive it and distribute it to all the children, seven in number, share and share alike; but there were debts, and funeral and administration expenses to pay, and the executors applied the money, so far as needed, to their payment.</p> <p>The amount of coal-money thus applied, as per the audited account of the executor, was $2107:76.</p> <p>The counsel for the legatees and executors claimed that the residuary estate in the lands of William A. and John C. must bear the whole burden — that all the other property being specifically devised, the debts were charged by manifest and necessary implication on the residuary estate; and that the debts and expenses having been in the first instance paid by the executors out of the money specifically devised, the legatees were entitled to be subrogated and refunded out of the residuary estate, which is more than sufficient.</p> <p>The property sold on this writ was a part, all the available part, of William A.’s share of the residue of the estate; and it was claimed that the proceeds of the sale be first applied to refund the legatees.</p> <p>The question as to what fund was liable for the debts and expenses, was brought directly in issue before Judge Hepburn, as auditor of the first account of the executors in 1855, and the facts were then presented as above stated, except that the administration expenses have since been increased and paid out of the same funds as before.</p> <p>Judge Hepburn decided that the debts of the decedent were a lien on the land, and that the expenses were also a charge upon it, and that the legatees had a right of subrogation and to be refunded out of the residuary estate. His report was confirmed by the Orphans’ Court, and was not appealed from.</p> <p>The subsequent report of Mr. Penny pursued a somewhat similar course, except as to two items. In regard to these, the court, by an order dated the 8th June 1859, referred the report back to be amended by disposing of those items in accordance with the rule adopted in Judge Hepburn’s report, and approved by the court, “ treating the estate as one fund, so far as the residuary legatees are concerned.” The report was so amended, and was not appealed from.</p> <p>On the 2d of June 1855 William A. Maguire gave to John C. Maguire a mortgage on his share of the land, acknowledged the same day, and on the same day assigned by John C. to William Crawford, the assignment duly acknowledged, and all recorded June 4th 1855. July 15th 1856, assigned by Crawford to William Magill, and March 19th 1857, assigned by William Magill to Thomas Mellon, Esq. A judgment-bond accompanied the mortgage, and was entered up. On this judgment, a Ji. fa. was issued, and* on it the property was sold, the bond containing stipulations to that effect. The bond was transferred to Mr. Mellon with the mortgage. The property was bid off by Mr. Mellon for $3115; $73.51 applied to costs, leaving $3041.49 for distribution.</p> <p>The auditor decided that the fund'for, distribution was first applicable to the claims above stated, as the debts of the decedent, and the expenses of administration amounting as above to the sum of $2107.76, but that this sum was'subject to some deductions, on which he reported as follows:</p> <p>“ 1. In the first place, two-sevenths of the coal-money belonged to William A. and John C. Maguire, they being two of the seven children of the testator, and each entitled to one equal share. Their share, as well as all of the others, was applied to these debts and expenses; and they are entitled to a credit for so much. Two-sevenths of the $2107.76 would be $602.22.</p> <p>“ 2. In the next place Charles Maguire, one of the sons of the testator, was also entitled to a seventh of the coal-money. It appears he got none of it. He died in April 1857, shortly after the death of his mother. William-A. and John C.’s share of his share, as he died without issue, would be two-sixths of one-seventh of $2107.66, viz., $100.37.</p> <p>“3. Again, by the will the six acres devised to the widow during life was to be sold at her decease, and the proceeds to be equally divided among the children. It has been sold since her death for $950. The coal under it was also sold pursuant to direction in the will for the sum of $190, the one-half of which only belonged to the testator, viz., $95. Omitting the latter sum as necessary, perhaps, for the expenses of sale and administration, reference is made only to the said sum of $950. This was divided among all the children — Charles being dead, there are but six to whom it belongs, William A. and John C. being two of them, and entitled to one-third, or $316.66. This last item of $316.66 is money to which William A. and John C. would be entitled under the will. It has gone or should go into the hands of the executors for distribution. Can they not retain it to replace or refund so much of the coal-mone'y of the others which has been used to pay debts ? Is this last-mentioned sum of $316.66 in anyway within the reach of this audit? The will makes the executors sell the six acres, and distribute the proceeds. The proceeds are not yet distributed. Would the executors be justified in paying over to William A. and John C. their shares, and then reclaim it from another fund arising from the sale of the land of one only of the residuary devisees, when both were bound for those debts and expenses ? This might work unnecessary injustice to the creditors of William A., and it might prevent a contribution for so much by the other residuary devisee, for which in law he is bound. It is true the auditor cannot distribute a fund he is not appointed to distribute, but he may say whether he will charge the fund he has to distribute with this amount, when the same amount is in the hands or within the reach of the executors, which may with more equity and justice be applied to the same purpose. The auditor does so decide.</p> <p>“ The $95 coal-money of the six acres, and a residue of the Smith coal fund is not yet accounted for (by the executors), and are not in any way disposed of or taken into account in this report.</p> <p>“ Mr. McOlowry proves that the payment of the $100 given by the will to Chrysostom Holmes (and expressly charged on the real estate), was secured to be paid out of the proceeds of the sale of another part of the residuary estate; and proves, also, that John C. Maguire’s share of the residuary estate was also sold at sheriff’s sale on the 24th of July, A. D. 1854, for the sum of $2150. It is contended that here was a fund, in 1854, arising from the sheriff’s sale of part of the residuary estate, sufficient to pay all the claims now sought to be made out of the present fund, and the legatees having neglected to claim it then, ought not now to claim it out of this fund, to the injury of a creditor. The point is thus presented, but the auditor does not think the legatees would be precluded from claiming out of the fund raised in 1858, because they omitted to claim out of the fund raised in 1854.</p> <p>“ It appears, by the proceedings, that the widow of the testator renounced under the will, and claimed her right under the intestate laws. It is therefore urged that she is entitled to the one-third of the coal-money, and that now her administrator is entitled to receive her share thereof.</p> <p>“ But how much would her (the widow’s) representative thus be entitled to out of this fund ? When she renounced under the will, and became entitled to one-third of the coal-money (said to be in all about $3600), would not that third be released from the character of a specific bequest, and then be chargeable with the debts, or at least a portion of the debts of the testator ? She could not take all of the third independent of the debts. Calling the whole coal-money $3600, her share would be $1200, from which take one-third of the debts, say $700, would leave for her representative $500.</p> <p>The auditor therefore distributed as follows:—</p> <p> </p> <p>To this report exceptions were filed for Thomas Mellon as assignee of the mortgage, viz :</p> <p>1. The appropriation of part of the proceeds of sale to debts, legacies, and expenses, &c., of James C. Maguire’s estate.</p> <p>.2. Not appropriating the entire fund to the judgment on which the sale took place, and other record liens.</p> <p>•3. To the several items making up the charge to which the proceeds of sale are applied over this exceptant’s mortgage-judgment.</p> <p>4. To the application of this fund to pay debts already discharged and paid by the executors, and barred by lapse of time.</p> <p>The court below, on hearing the case, sustained the exceptions in part, and dismissed the residue, and decided that Thomas Mellon, the purchaser, was not entitled to receive the whole amount of the money mentioned in the. sheriff’s return in this case, but only to a portion thereof, to wit, the sum of $2274.25, and that the residue thereof, after deducting the expenses of the audit, $678.24 was to be distributed in equal portions to James Maguire, Ellen McGargill’s representatives, the representatives of .Jane Holmes, and Bridget Davis, specific legatees of James O. Maguire, in accordance with the schedule of distribution filed; and ordered and directed the sale of said real estate to be set aside, and the same to be resold, unless the sum of $678.24 be paid to the sheriff within ten days hereafter.</p> <p>On this appeal it was averred that the court below erred,</p> <p>1. In holding that the debts continued to be a lien on the residuary real estate, after five years from testator’s death, without any suit brought or claim filed to preserve Such lien; or that these legatees are in a better position in this respect than the creditors to whose rights they claim to be entitled to be subrogated.</p> <p>2. In holding that there is by implication such a charge of the “Smith coal-money” legacies on this land as creates a continuing lien in the hands of a bond fide purchaser or mortgagee of the devisee, William A. Maguire.</p> <p>3. In holding that no error existed in the principle enunciated by the auditor, viz., that this appellant, as assignee of mortgagee, stands in no better or different position than William A. Maguire, the devisee, as regards the claims of these legatees.</p> <p>4. In permitting these exceptants to the sheriff’s return to come in on this fund, after standing by, consenting to two different distributions in the Orphans’ Court, wherein funds properly applicable to their claims were without objection distributed to William A. and John C. Maguire, and to the widow, who was entitled to nothing out of the personal estate till the debts were first paid.</p> <p>5. In distributing part of this fund to these legatees, who do not except to the sheriff’s return, the executors having no right to except for them. These same executors being permitted by these same legatees to hold back in their hands, unadministered and unaccounted for, a large portion of the personal estate primarily applicable to their alleged claims, evidently intending to defraud the l'ien-creditors of William A. Maguire, by relieving his share of the fund in future distributions in the Orphans’ Court from the burden of their claims.</p> <p>6. In holding that the widow’s third of the “ Smith coal-money,” which was dissevered from the bequest of that fund by her renunciation of the will, had not been properly applied by the executors in payment of debts and expenses, and in not holding that it was to be treated and regarded as having been so applied to the extent necessary, whether so intended by the executors or not, it being primarily and ultimately a proper fun 1 for payment of debts and expenses.</p> <p>7. In burdening this fund with these claims, to the prejudice of this appellant, and in exoneration of William A. Maguire’s share or moiety of that part of the farm devised to Charles for life, with remainder over to the residuary devisees, under the residuary clause of the will.</p> <p>8. In casting the burden of these claims on this fund, without proceedings and decree fixing the relative value of this portion of the residuary real estate, and the comparative amount which it ought to bear, as compared with other portions of the residuary real estate in this and other counties.</p> <p>9. In holding as conclusive upon this appellant, the accounts and proceedings in the Orphans’ Court, to which he .was not a party, could not have introduced or cross-examined witnesses or appealed; and in regarding those accounts and proceedings as proof sufficient of the several items claimed as debts and expenses, and of their payment, and their payment out of the “Smith’s coal-money,” although the items of expense were enormous, compared with the amount of the estate, and were accumulated chiefly since the date of the exceptant’s mortgage, and in litigation about questions of distribution between the legatees themselves.</p> <p>10. In fixing the aggregate of debts and expenses at $2007.76, when an examination of the administration accounts and reports referred to, will show they only amounted to $1649.43. This error arises from items of expense, &c., of prior accounts and reports, being carried into and included in subsequent accounts.</p> <p>11. In distributing part of this fund, to wit, $678.24, to and among said legatees, under the will of James C. Maguire.</p> <p>12. And in not dismissing the .exceptions filed to the sheriff’s return at the costs of the exceptors, and not awarding the entire fund to this appellant.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action of assumpsit brought by William C. Robinson, P. H. Miller, Witherow Douglass, and Wilson Miller, partners doing business as Robinson, Douglass & Millers, against Nathaniel Ballentine and George Hutchinson, partners trading as Hutchinson & Ballentine.</p> <p>The plaintiffs filed a declaration containing the common ■which they afterwards amended by setting out the following special contract:—</p> <p>“ On the first day of May 1861, an agreement was made between the plaintiffs and the defendants, whereby the plaintiffs were to provide materials and construct for defendants a six-inch steam-engine with boiler and Gifford injector and heater, in consideration whereof the defendants were to pay plaintiffs five hundred and thirty-five dollars in cash on the completion thereof.”</p> <p>They then averred that they did in fact provide materials for, and construct and complete said engine, with boiler, injector, and heater as aforesaid, and had the same ready for delivery to defendants, to wit: on the 10th day of July 1861, upon the payment of said moneys, according to their agreement, yet the said defendants did not pay said moneys, nor any part thereof, &e. The second count in the amended narr. was for goods bargained and sold.</p> <p>When the case came up for trial on the 29th of May 1863, the plaintiffs proved by their foreman a contract exactly corresponding with the one set out in the first count of their amended narr.; and that when the engine was completed they notified the defendants to come and pay for it and get it, but that they did not do so.</p> <p>The plaintiffs were for a great many years largely engaged in manfacturing and vending steam-engines; at the time they brought this suit, and at the time of the trial, the engine above mentioned was in their hands.</p> <p>When the plaintiffs had closed their testimony, the defendants made several offers in their defence, which were overruled by the court, and bills of exception sealed, but they were not assigned for error.</p> <p>The defendants’ counsel asked the court to instruct the jury “ that the proper measure of damages in this case, is the difference between the price contracted to be paid for the engine, and the market price at the time the contract was broken.” The court declined to charge the jury as requested, and instructed the jury that the measure of damages was the contract price of the engine with interest.</p> <p>The error assigned was the answer of the court to defendants’ point.</p>

<p>Averment or denial in answer, when not evidence for defendant.— Pleadings strictly construed against pleader.— GWs in proceedings in equity, how awarded.</p> <p>1. A denial or averment in an answer to a bill in equity not directly responsive to the bill, is not evidence for the defendant.</p> <p>2. A complainant, the patentee of a car-wheel improvement, having entered into partnership by articles in which the patent was included as firm property while the partnership continued, after the business of the firm had been stopped and discontinued, sold to a railroad company a single right to make and use the patent wheel, the price for which the respondent afterwards received : the answer to the bill did not deny the date of the sale as alleged, but only averred that it was made while the partnership continued: the master appointed found that the firm was dissolved before the date of the sale. Held, That as the effect of the respondent’s averment was that the partnership continued until after the sale was made, which was found against him by the master, the date of the sale as alleged in the bill was admitted : consequently, the complainant was entitled to the price of the right sold, which the respondent had received.</p> <p>2. Costs in equity are at the discretion of the court, and when, before bill filed, the defendant has offered to do complete equity, the costs of the complainant will ordinarily be refused : but where no such sum is offered him, as the final decree shows to have been due, his costs will not be withheld.</p>

<p>Ejréob. to the Common Pleas of Indiana county This was an action of trespass vi et armis, brought by Mary Ann Buchanan against James A. Getty and James D. Buchanan, to recover damages for taking and carrying away certain live stock and farming utensils, which the plaintiff averred were her property.</p> <p>The material facts of the case were as follows:—</p> <p>John Buchanan, Sr., died in 1847, having devised the bulk of his farm to his daughter Jane and granddaughter Mary Ann, who were living with him at the time of his death, to hold as tenants in common. He also bequeathed to Jane all his notes, bonds, judgments, and money, made her executrix of his will,' but made no disposition of his live stock, farming utensils, and household furniture.</p> <p>This property, as per inventory, filed by Jane, amounted to ■ $571.59. It was retained by Jane at the appraisement, and in-eluded in her account, remained on the farm, and was used and occupied by the family.</p> <p>Jane died in 1860, unmarried, intestate, and without issue, - and the defendants above named were appointed administrators of her estate. The stock on the farm at her death was acquired since her father’s death by purchase or natural increase, while some of the personal property remained as it was at that time.</p> <p>The alleged trespass consisted in taking and selling, as administrators of Jane, the bulk of the personal property found on the premises at her death. The allegation of the plaintiff was that, as to this property, she and her deceased sister had been partners, and that she was entitled to it as survivor.</p> <p>On the trial the defendants offered the testimony of Johnston Sutton, which was objected to by the plaintiff’s counsel on the ground that his wife, who was still living, was an heir to the estate of Jane Buchanan. The court below sustained the objection, whereupon a release of his interest was executed and delivered. The witness was again offered, and again objected to and rejected by the court.</p> <p>Mrs. Jane O. Getty was also offered as a witness, hut being objected to .for the same reason, was rejected by the court, notwithstanding her execution of a release of all her interest.</p> <p>The court below (Buebtogton, P. J.), after stating the material facts of the case, charged the jury as follows:—</p> <p>“ The old man bequeathed by his will all his notes, bonds, judgments, and accounts to Jane, but seems not to have made any disposition of his personal property. [That, however, passed into her hands, not in her right, but as executrix of her father ; and not being sold, remained on the farm and was used and occupied by the family. This possession and appropriation seems not to have been questioned by any one.] At the death of the old man it seems that Polly had no interest in the personal property. But it was equally clear that the stock was fed from the proceeds of the farm — some of the property, as the household and kitchen furniture, remained at the death of Jane the same as at the death of the old man. The stock at the death of Jane, horses, cattle, sheep, and hogs, were acquired during that time, between death of the father and Jane, either by purchase or natural increase. The jury will decide how this is. If the jury find that the stock or any part of it was the natural increase of the original stock, it raises the question who would be entitled to this'increase. As a question of law alone, the rule is that the issue follows the ownership of the mother; that is, the colt belongs to the owner of the mare, the calf to the owner of the cow; and the same as to other property that increases by natural means. How much of the property was in this condition is a question of fact for the jury. How much was acquired by purchase the jury will also decide, and how that property was held. [The position of the plaintiff is that, however the property may have been acquired, there was an agreement between them that in consideration of their being joint owners of the farm and joint labourers on it, and the property supported and maintained by these joint means, that they were to be equal owners in the whole of the personal property. Was there such an agreement? This is a question for the jury. If there was, we think there was a sufficient consideration, and the agreement would be a good one and would vest the property in them equally.] It' is contended by the plaintiff that she is entitled to recover the whole as surviving partner. It is very certain that in equity plaintiff is not entitled to recover and retain the whole. The one-half certainly belonged to Jane. I do not look on this as a technical partnership. There are no debts to pay, it was not a trading or business firm. If they were equally entitled to the property, they are to be looked upon as part owners and not strictly partners. We therefore think that, so far as regards Jane’s rights, the defendants were not trespassers — and that the jury may seperate the interest of each in the present action and treat the defendants as trespassers only so far as they deprived the plaintiff of what she was entitled to. This view is the more readily adopted, as it would save multiplicity of suits : as if the plaintiff received the whole in this action she would have to account back to defendants for one-half. This can be avoided by treating them as part owners and not as partners. If the jury take this view of the subject, they will inquire and ascertain the entire amount that they find belonging to them both equally — divide that equally — and then one-half would be plaintiff’s and one-half defendants’. Interest being added to this half, from October 1860, would be the verdict. But if the jury believes the whole of the property belongs to Jane, then the plaintiff had no right, and the verdict would be for the defendants.</p> <p>“It is alleged by the defendants, however, admitting they were joint owners, they were not trespassers, because they took it and sold it with the consent of the plaintiff. This is also for the jury — if she consented to them taking it and selling it freely and willingly, and the defendants sold it with the voluntary consent of the plaintiff, she cannot now gainsay that and treat the defendants as trespassers. Her remedy would not be by this form of action. But if her consent was extorted from her by force or fraud, intimidation, frightening her and constraining an unwilling consent, then it would rather aggravate than remove the wrong and trespass. As to her consent to the appraisement, no inference, of waiver can be drawn from that, as it was the duty of the administrators to take the inventory, although joint property, and her furnishing the property for that purpose would he no waiver of her right or relinquishing of her interest. It is not until they undertook to deprive her of the property that they Arould become trespassers.</p> <p>“ I have thus, I believe, met every question of law in this case, and with this exposition of the principles involved, the case is for the jury wholly.”</p> <p>Under these instructions there was a Arerdict and judgment in favour of the plaintiff. Whereupon the defendants sued out this writ, and assigned for error the rejection of the witnesses Johnston Sutton and Jane O. Getty, and so much of the charge of the court as is enclosed above in brackets.</p>

<p>Negligence, nature and extent of responsibility for. — Doctrine ofa causa próxima non remota spectator,” discussed.</p> <p>1. One who wantonly or negligently causes property to he exposed to dangers which he knew, or with ordinary forecast and prudence might have foreseen ; is responsible for damage resulting therefrom, though his act may not have been the most proximate cause.</p> <p>2. Where the defendants negligently moored their boats in the channel and entrance to the locks at a dam upon a river, so that the boats of others were stopped outside and exposed to the current then rapidly rising, until by its force they were carried over the dam and lost, without any fault of the owners, it was error in the court, after verdict for plaintiffs, to enter judgment for the defendants, upon the reserved point that the obstruction of the channel and locks was a 'cause too remote from the rise in the river and increased current which was the proximate cause of the accident, to render them liable.</p> <p>3. The question should also have been submitted to the jury whether the defendants ought not to have apprehended that their unlawful and continued obstruction of the entrance to the locks might result in the plaintiffs’ boats being swept by the current over the dam and lost: for if they ought to have known the danger, as men of ordinary prudence, and persisted in maintaining the obstruction, they are responsible.</p>

<p>Words of reservation in deed, effect of. — “ Reservation” and “ exception,” discv‘•'■rd and defined.</p> <p>1. Words of reservation in a deed may operate by way of exception, and have eifect, when the subject of the reservation is a thing corporate and in esse when the grant is made, and not something newly created, as a rent or other incorporeal interest.</p> <p>2. Where a deed in fee of land was made, the grantor “ saving and reserving, nevertheless, for his own use the coal contained in the said piece or parcel of land, together with free ingress and egress by wagon-road to haul the coal therefrom as wanted,” it was Held, That the saving clause operated as an exception of the coal, and, therefore, that the entire and perpetual property therein remained in the grantor.</p>

<p>Error to the Common Pleas of Gfreene county.</p> <p>This was an action of ejectment, brought December 30th 1862, by Barzilla Stephens, in right of his wife Margaret, against Elijah Morris et al., for the undivided fifth part'of two.tracts of land in Whitely township, Greene county, the one containing one hundred and ninety-eight acres, and the other two hundred and eighteen acres.</p> <p>Andrew Lantz, the elder, who was the owner of the land in controversy, died in 1859, intestate, leaving five children, of whom Mrs. Margaret Stephens was one. She claimed, therefore, to recover the undivided fifth part of the land as heir at law of her father. The defendants claimed under a deed dated June 26th 1853, by which Andrew Lantz had conveyed these lands “to the heirs of his son; Andrew Lantz,” said Andrew being then in full life, and on the trial offered to prove by a witness that he drew the deed from the grantor to the grantees, at the request of the grantor, and that the grantor knew, when he executed the deed, that his son Andrew was living, and that the grantor named over his grandchildren by his son Andrew, viz., Ellen, Ruth, Eliza, Mary Jane, and Catherine Margaret, and said to the witness, when he was writing the deed, h.e was going to convey the land to them, and directed the witness to make the deed to the “heirs of his son Andrew,” so as to include any children that might be born thereafter to his son Andrew, as well as those then living, and that the grantor said it was his intention to make the deeds to his grandchildren — the children of his son Andrew — and that he said the words “ heirs of his son Andrew” would include all the children of his son Andrew, born and to be born, for the purpose of showing that the grantor, by the use of the words “heirs of his son Andrew Lantz,” meant the children of his son Andrew, who were then in full life, and that he intended to convey the land mentioned in the deed to bis grandchildren, the then living children of his son Andrew.</p> <p>The court below (Lindsay, J.) disposed of the offer thus:—</p> <p>“ The offer admits that there was no mistake made by the scrivener in introducing the words ‘ the heirs of his son Andrew Lantz,’ as the description of the grantees, and asserts that those descriptive words were used by the grantor for a special purpose. He may have been mistaken with respect to the fitness and capacity of the terms employed to effect the purpose intended, but this will not justify us in admitting parol evidence to substitute other words for them, or to show that they were designed to have a meaning and force different from that which the law assigns to them.</p> <p>“The evidence cannot be admitted to reform the deed on the ground of fraud or mistake; for the offer itself shows there was neither. It cannot be admitted on the ground of any alleged ambiguity in the deed; for, if there be any ambiguity, it is a patent, and not a latent one. And we are unable to see upon what ground it can be received. We think the deed must stand or fall by its own vitality, or want of vitality; if it be void for uncertainty on its face, the parol evidence cannot help it; and if it be not, the defendants’ case does not need the parol evidence.</p> <p>“We will permit the defendants to prove that Andrew Lantz, Jr., had children living at the date of the deed; and their names and number, and the knowledge thereof by the grantor. The offer beyond this is overruled.”</p> <p>There being no other evidence for the defence, the learned judge, after stating the case, instructed the jury as follows:—</p> <p>“ The only question presented by the case relates to the validity of this deed.</p> <p>“ It is essential to the validity of a conveyance that there be a grantor, a grantee, and a thing granted, and these must be described with reasonable certainty. This conveyance clearly designates the grantor and the subject of the grant; but the grantees are described as ‘the heirs of his son Andrew Lantz.’ Is such a description sufficient? Were there then any persons, capable of taking, answering the description ?</p> <p>“At the date of the deed, Andrew Lantz, Jr., was living. Nemo est Títeres viventis. This rule denies the existence of such persons as are described as the grantees in the deed.</p> <p>“ The defendants seek to avoid this difficulty by reading the term heirs in the sense of children. We doubt whether such a construction, if allowable, would answer the purpose; for, it would still be impossible to determine what children of Andrew^ Lantz, Jr., should take under the grant, whether those only who were then living, or in addition to them such as might be thereafter born. But we think the term ‘heirs,’ as used here, must have its legal signification. There are some cases where this word has been construed to mean children in devises, because it was absolutely necessary to effect the intention of the testator; but we know of no case where it has been so construed in a deed. On the contrary, it has been repeatedly said that, in a deed or written contract, words of art must have their technical meaning: 4 Watts 90; 9 Harris 344.</p> <p>“ Nor can we understand these descriptive words as designating the heirs apparent of Andrew Lantz, Jr., and thus support the grant by referring it to his then living children.</p> <p>“To do this would be to limit the grant to a part of the class of persons who are described or attempted to be described as the grantees. And if the defendants inform us truly, it would, at least in part, defeat the intention of the grantor, for they have offered to prove that he used the term ‘ heirs’ for the very purpose of embracing any after-born children of Andrew Lantz, Jr., as well as his heirs apparent. But we do not determine the question with a view to any supposed intention of the grantor. We look, to the deed itself, and we think it defective in that it does not distinguish with any reasonable certainty who are to take under it.</p> <p>“ We know that grants should receive the most benign construction, and in cases of doubt be most strongly construed against the grantor. But there must be somebody in esse to whom the descriptive words designating the grantees will apply. And enough must appear to ascertain the grantees, and to distinguish them from all others. Herein this deed is fatally defective. We are not aware of any judicial decision upon this question in Pennsylvania; but the very point was decided by the Superior Court of Massachusetts: 1 Pick. 27. And this decision seems to us to be in conformity with the principles laid down in the elementary books.</p> <p>“ It is to be observed that there is no description of the grantees other than that in the premises (which we have already recited). In the habendum, in the covenant of warranty, and wherever else they are referred to, they are mentioned in the merely formal language of parties of the second part. If there were in any part of the conveyance words sufficiently descriptive to distinguish the grantees, we would of course lay hold of them to support the grant. But there is the same uncertainty throughout the deed. And as we cannot find anything in it to help out the inadequate description of the grantees, that the grant may be upheld, so we are unable to discover anything which will permit us to treat the conveyance as a covenant to stand seised to the use of the heirs of Andrew Lantz, Jr.</p> <p>“ As we are of opinion the deed is void for uncertainty, the verdict will be for the plaintiff.”</p> <p>Under these instructions there was a verdict and judgment for plaintiff. Whereupon the defendants sued out this writ, and assigned for error the rejection of the offer above mentioned, and the charge of the court to the jury.</p>

<p>County treasurer, liability of sureties on bond of not affected by the issue of county scrip. ■ •</p> <p>The sureties on the official bond of a county .treasurer are liable for a balance found by the auditors upon settlement of his account to be due by him to the county, though he was charged thereiirwith scrip issued by the commissioners during his term, in violation of law, but which he had received, deposited, and paid out as money.</p>

<p>Error, to the Common Pleas of Allegheny county.</p> <p>This was an action on the case brought by John B. Canfield against The Pennsylvania Railroad Co., in which the following case was stated for the opinion of the court:—</p> <p>John B. Canfield, the plaintiff, resides in the city of Pittsburgh, and is a wholesale dealer in grain, produce, &c. His purchases are made in Western Pennsylvania, Ohio, and elsewhere, and shipped to him at Pittsburgh for sale — that being his ordinary and regular market. In January, A. D. 1863, in the regular course of his business, the plaintiff purchased a quantity of wheat at Cincinnati and other points in Ohio, the product of that state, and had it shipped to him by river to Pittsburgh. When the wheat arrived at Pittsburgh, the plaintiff put it in store for" sale. He subsequently shipped a portion of it by the Pennsylvania Railroad to Philadelphia, — that city offering, for the time being, a better market. The Pennsylvania Railroad Co., the defendants, have regularly published schedules of charges for freight transported over their road. At the time the plaintiff shipped his upon defendants’ road, the freight upon that class of goods, by the defendants’ published rates, was thirty-six cents per hundred pounds,- being the local rate of freight from Pittsburgh to Philadelphia, and the amount to which said defendants would have been entitled at that price would have been $367.92. But upon the arrival of the said wheat at Philadelphia the said defendants charged the said plaintiff the sum of 57 cents per hundred pounds, being the through rate of freight, the defendants treating the said wheat as if shipped from a point west of Pittsburgh, amounting in the aggregate to $582.55. This latter sum said plaintiff paid to said defendants under protest.</p> <p>If the court should be of the opinion, under the facts herein set forth, and under the Act of Assembly of March 7th 1861, entitled An Act for the Commutation of the Tonnage Tax — that the defendants had a right to charge and collect from said plaintiff the sum of $582.55, then judgment to be entered in favour of the defendants. But if the court should be of the opinion that the said defendants had no right to charge and collect from said plaintiff more than the sum of $367.92, then judgment to be entered in favour of the plaintiff for the sum of $214.63, with interest thereon from January 12th 1863. With leave to either party to sue out a writ of error.</p> <p>On hearing, the court below gave judgment for the plaintiff on the case stated. Whereupon the case was removed into this court by the defendant, who assigned the judgment of the court below for error.</p>

<p>Error, to the District Court of Allegheny county.</p> <p>This was an action on the case by Nancy Jane Painter against The Mayor, Aldermen, and Citizens of Pittsburgh, to recover damages for causing the death of her husband by negligently leaving a sewer on Duquesne Way, in said city, open and unprotected by proper barricades, &c., which the city of Pittsburgh was having constructed, from Liberty street to the Allegheny river. The defendants, as matter of defence, alleged that the city was not constructing said sewer through the regular officers of'the city, but under a contract with Allen & Kerr, and that the city were the mere agents of the property-holders, who, by virtue of the Act of Assembly, would have to pay for said sewer, under assessment, and being such agents, and having the work done by contract, they were not liable in law for any injuries resulting from negligence of the contractors, their workmen and employees.</p> <p>The evidence showed that George Painter, the husband of plaintiff, on the night of the 28th day of June 1859, was going up Duquesne Way towards Irwin street, to his boarding-house, at Frank Morrow’s, and while passing along, fell into the sewer, some twenty feet deep, and received injuries which caused his death in some eight or ten days afterwards.</p> <p>The defendants requested the court to instruct the jury:—</p> <p>1. That if the excavation into which the plaintiff fell, was made by a contractor for said work, in accordance with the Act of Assembly, and ordinances of the city of Pittsburgh, and not by the regular officers of said city, such contractor is not an agent of said city, for whose negligence, or the negligence of whose workmen, the city would be liable.</p> <p>2. That if the excavation was made in the construction of a public work, the cost of which was to be assessed in pursuance of an Act of Assembly authorizing the saíne, upon the property benefited, the city authorities were the agents of the parties interested, and being public agents, are not liable for the negligence of the contractor or his employees.</p> <p>3. That negligence upon the part of the defendants cannot be inferred from the fact of injuring, but must be proved by plaintiff ; and if the jury believed that the defendants or their agents did everything to prevent accident, which a person of ordinary care could do, the defendants are not liable in this case.</p> <p>4. That if they believed that any barricades, embankments, or other obsti’uctions existed on the line of said excavation, sufficient to put a person of ordinary care upon his guard, and that under the circumstances of the case, the deceased did not exercise the care which a person of ordinary caution would have done, the plaintiff is not entitled to recover.</p> <p>5. That the evidence in the case, if true, does not bring the plaintiff within the statutes of the state, and there being no liability at common law for negligence producing death, the plaintiff is not entitled to recover.</p> <p>6. That the plaintiff is not entitled to recover, because the writ and declaration in the case do not set forth a cause of action under the statutes of the state, and there would be no-cause of action at common law.</p> <p>The court, in charging the jury, affirmed the third and fourth points submitted by defendants, and reserved the questions of law arising under the others, ruling proforma in favour of the plaintiff. The jury rendered a verdict in favour of the plaintiff for §2100.</p> <p>The questions reserved were—</p> <p>1. Whether the city was liable in this action, where the excavation into which deceased fell, was done by contract, under the Act of Assembly and ordinances of the city, and not by the regular officers of the city.</p> <p>2. Whether the city would be liable for the negligence .of the contractors and their employees, where the excavation into which deceased fell, was made in the construction of a public work, the cost of which was to be assessed in pursuance of an Act of Assembly authorizing the same, upon the property benefited, the city authorities being the agents of the parties interested, and public agents.</p> <p>3. Whether the writ and declaration set forth such a cause of action, as would entitle plaintiff to recover under the statutes of the state.</p> <p>4. Whether the plaintiff, under all the evidence, if true, is within the statutes of the state, and whether she can recover, there being no liability at common law for negligence producing death.</p> <p>The court, after argument in bane, ruled these reserved questions in favour of defendants, and entered judgment for the corporation, non obstante veredicto ; which was the error assigned by the plaintiff.</p>

<p>Error to the Common Pleas of Allegheny county.</p> <p>This was an action on the case by the Burgess and Town Council of the Borough of Duquesne against the Pennsylvania Railroad Company, to recover the amount expended in constructing a bridge over the Pennsylvania Canal, at McEadden street, in said borough, in place of one which had fallen down. A written notice had been served upon the company requiring the bridge to be built, but they declined to comply with the terms of it, believing they were not legally hound, as the vendees of the state, to either rebuild or keep in repair a bridge at the point indicated. The borough proceeded to put up the structure, and brought this action to recover the amount expended.</p> <p>The questions argued and decided below, and upon which the case turned, related to the several Acts of Assembly defining the rights and duties of the state and the canal commissioners touching the building of bridges over the canal, and the extent to which the Pennsylvania Railroad Company became liable, by reason of their purchase of the main line, to rebuild and repair the canal bridges originally erected by the state.</p> <p>In the present case the state had erected a bridge at the street, and had kept it in repair for some years prior to the sale, but at times the borough had expended some money upon it, claiming repayment from the canal department.</p> <p>It was in evidence also that the work and expenditures of Duquesne Borough in repairing the bridge originally erected by the state, as well as the first rebuilding by the borough, were done by the direction of the state superintendent, and with a promise on the part of the canal commissioners to reimburse the borough.</p> <p>The plaintiff requested the court to instruct the jury,</p> <p>1. That under the Act of 18th of March 1835, there was no absolute legal liability upon the Commonwealth “ to repair, or rebuild, or keep in good condition, such bridges on the Pennsylvania Canal as were erected at the expense of the same before or at the time of the completion of said canal,” but it was discretionary with the canal commissioners so to do, and such being the case, there is no legal liability upon the defendants, as purchasers of the main line, to pay for the erection of the bridge built by the plaintiffs.</p> <p>2. That the defendants, standing in the place of the state at owners of the canal, are not, by the Act of 18th of March 1835 bound to the performance of any duty therein named, further than the state would be if now possessing the same, and that this action will not lie for the reason that the state might refuse to repair or rebuild the bridge, that this was merely a matter of discretion, and a refusal to comply with a request to build the bridge gave no right to proceed against the state.</p> <p>3. That the defendants, as purchasers of the main line, under the Act of May 16th 1857, took the same free from all restrictions and conditions imposed by the state upon herself, except only such as are specially mentioned therein; and that by said act the plaintiff cannot raise a liability against the defendants to pay for the erection of the bridge, unless the jury are satisfied from the evidence that, under the first proviso of the seventh section of said act, an agreement or arrangement had been made between the plaintiffs and the state prior to the sale of said main line, by which the latter bound herself to rebuild and repair said bridge.</p> <p>4. That as matter of law, the Act of May 16th 1857 does not impose any absolute legal liability on the defendants to build or repair said bridge, or pay for the erection of the same, and that the burden of proving any liability whatever rests upon the plaintiff, and he must show that some contract or arrangement was contemplated by the act, by which the duty became fixed and certain, and was in existence at the time of the purchase of said main line by the defendants, by which they, as part of the contract of purchase, were in law chargeable with the duty of building the bridge.</p> <p>5. That the Act of May 16th 1857 was a contract between the state and the defendants, and cannot be added to or altered by judicial construction so as to charge the defendants with a duty not mentioned therein, and that the rebuilding or repairing of this bridge being merely discretionary with the canal commissioners, no duty can arise out of said act in the absence of the proof of a contract as contemplated by the first proviso of the 7th section, by which the defendants can become liable in this action.</p> <p>6. That the passage of the Act of 16th of May 1857, for the sale of the main line, and the act abolishing the office of canal commissioners, rendered null and void the said Act of March 18th 1835.</p> <p>7. That the act incorporating the borough of Duquesne, by which the control of the streets within her limits was surrendered to her, was a repeal of the Act of March 18th 1835, and released the state from any liability to rebuild or repair the bridge in question, and operates to bar a recovery by the plaintiff in this action.</p> <p>8. That the plaintiff cannot recover in the present form of action, there being no privity of contract between the plaintiff and the defendants.</p> <p>The court below (Mellon, A. J.) charged as follows:—</p> <p>“ The jury will understand the rule of law which we lay down in regard to this case to be as follows:</p> <p>“You have seen that by the Act of 1835 the state took up'on herself the duty and obligation of the repair and reconstruction of all such bridges as were erected at the state expense before or at the time of completing the canal, and continued to be necessary to accommodate the public travel, or for the use of the landowners, and in selling this canal to the defendants by the Act of 1857, the defendants accepted it subject to all contracts and arrangements theretofore made, by Act of Assembly or otherwise, in regard to its use, and to carry out the same with all persons interested therein in the same manner as the Commonwealth, or its agents, were required to do by law.</p> <p>“ [Now, I instruct you that if the bridge in question was one of those contemplated in the Act of 1835, to repair and rebuild that bridge was one of the arrangements made by the state, and existing at the time of the sale and transfer, to be performed by the state agents, and subject to which the defendants accepted; and accepting subject to this condition created an express covenant or promise on part of the defendants to perform it, and the borough of Duquesne, being the party immediately bound to the public to keep the bridge in repair and interested in its existence, the promise, by fair and reasonable inference, may be regarded as made to the borough concerning the bridges within its limits. The promise is to carry out the state arrangements with all persons interested.]</p> <p>“Your first inquiry will therefore be, whether the bridge in question was one of those bridges erected at the expense of the state, at or before the time the canal was completed; that is to say, whether it is one of those contemplated under the provisions of the Act of 1835, which you have heard read.</p> <p>“ 2d. Whether it has ever since continued to be necessary, and was, at the time the present structure was put up, necessary for the accommodation of public travel.</p> <p>“ 3d. Whether, before its erection, the defendants were requested, and neglected or refused to erect it, or had reasonable notice that it was down and was necessary to be reconstructed, and they still neglected and refused to construct it.</p> <p>“ 4th. If you find the foregoing propositions for the plaintiffs, then ascertain what it cost, and your verdict should he for that amount, with interest, as there is no allegation that the structure is extravagantly built, or the cost or outlay uncalled for, or exorbitant-.</p> <p>“ If the bridge does not fall within the provisions of the Act of 1835, as already explained, or the defendants were not notified, or did not refuse its reconstruction, then your verdict should be for defendants.”</p> <p>The points of the defendant were all answered in the negative.</p> <p>Under these instructions there was a verdict and judgment in favour of the plaintiffs for $193.76. Whereupon the defendant sued out this writ, and assigned for error the refusal of the court below to affirm the points propounded as above, and so much of the general charge as is printed above in brackets.</p>

<p>Right of vendee to detain purchase-money for breach of vendor’s covenant. —Right of Way, when “ an encumbrance” within covenant against encumbrances.</p> <p>1. The detention of purchase-money on account of breaches of the vendor's covenant, is a mode of defence peculiar to Pennsylvania jurisprudence ; but the principle is well settled, that where a vendor has conveyed land with covenants on which he would be liable to the vendee in damages for a defect of title, the vendee may detain purchase-money to the extent to which he would be entitled to recover damages upon the covenant, and he is not obliged to restore possession to his vendor before or at the time of availing himself of such a defence.</p> <p>2. Where there is a known defect, but no covenant or fraud, the vendee can avail himself of nothing, being presumed to have been compensated for the risk in the collateral advantages of the bargain.</p> <p>3. Where there is a covenant against a known defect, the vendee may not detain purchase-money unless the covenant has been broken.</p> <p>4. If the covenant be for seisin or against encumbrances, it is broken as soon as made if a defect of title or an encumbrance exist, but if it be a covenant of warranty it binds the grantor to defend the possession against every claimant of it by right, and is consequently a covenant against rightful eviction.</p> <p>5. To maintain an action for breach of it, an eviction must be laid and proved, not necessarily by judicial process or the application of physical force, but by the legal force of an irresistible title. There must be proof, at the least, of an involuntary loss of the possession.</p> <p>6. As the right to detain purchase-money is in the nature of an action on the covenant, and is allowed to prevent circuity, the vendee who seeks to detain by virtue of a covenant of warranty, is as much bound to prove an eviction as if he were plaintiff in an action of covenant.</p> <p>7. Until eviction, the covenant is part of the consideration of the purchase-money he agreed to pay, and holding the covenant he may not withhold the purchase-money. But after eviction he has a right to have his damages deducted from the purchase-money.</p> <p>8. Michell v. Warner, 5 Conn. Rep. 497, disapproved of. Patterson ».</p> <p>Arthurs, 9 Watts 152, commented on.</p> <p>9. A purchaser who sees a public road that has been used thirty years upon the land he is buying, has no right to consider it an encumbrance within the meaning of a covenant against encumbrances.</p> <p>10. But a private right of way, of the existence of which a purchaser has no actual notice, but only that constructive notice with which an unsearched registry affects him, is an encumbrance within the covenant; and after it has led to eviction is necessarily a breach of the covenant of warranty.</p> <p>11. A covenant of warranty, after eviction, stands on the same ground as those other covenants which are broken as soon as made.</p> <p>12. The covenantee having the right to claim damages for breach, his appropriate place to have them assessed is in the suit for purchase-money.</p>

In an action of ejectment, brought in the court below, against George Miller and others; the court, on motion of defendants’ ■counsel, appointed C. Snively, Esq., a surveyor “to survey the premises in dispute, and to make the necessary plots, or diagrams, according to the rule of this court in such case made and provided.” The plaintiff having neglected or refused to file an abstract of his title and statement of his claim in the case as required by the rules of the District…

<p>Decree in partition, who are estopped by. — Effect of general appearance for several defendants.</p> <p>Where, in a writ of partition, a part owner of lands was named, but was omitted in the narr., and a decree was made by the court founded on the narr., which decree was set aside by consent of the parties, and afterwards reinstated by agreement of the parties, except the said part owner, to whom no notice was given: Held, that notwithstanding the appearance of counsel for all the defendants — this part owner among them — he was not estopped from showing these facts in evidence in an action of ejectment for the land.</p>

<p> Presumption of payment from lapse of time, what will rebut. </p> <p>1. The presumption of-payment of bond after the lapse of twenty-one year,?, is essentially different from the bar interposed by the Statute of Limitations to the recovery of a simple contract debt: the one merely prohibits the action, the other primá facie obliterates the debt.</p> <p>2. The bar of the statute is removed by nothing less than a new promise or an acknowledgment consistent with such promise ; while the legal presumption is prevented wherever there is affirmative proof, on the part of the creditor, beyond that furnished by the specialty, that the debt has not been paid, or where there are circumstances which sufficiently account for the delay of the creditor.</p> <p>8. Where the necessary facts are established, their sufficiency to rebut this presumption is a question for the court and not for the jury.</p>

<p>Error to the Common Pleas of Venango county.</p> <p>This was an action of assumpsit, by Hugh Campbell against Henry Baker.</p> <p>The case was this: — On the 17th of December 1859, J. M. Orr gave to Henry Baker his judgment-note in the following form, viz.:—</p> <p>“$178.15. On the first day of May next I promise to pay Henry Baker, or order, $178.15, without defalcation, for value received; and I further do hereby empower any attorney of any court of record in the state of Pennsylvania to appear for me and confess judgment, after one or more declarations filed, with release of errors, &c. Witness my hand and seal, this 17th day of December, a. ». 1859. ¡ “ J. M. Orr.”</p> <p>This note was on the same day assigned by Henry Baker to the plaintiff, in the following form, viz.:—</p> <p>“ For value received, I assign the within note to Hugh Campbell, and guarantee the payment of the same when due.</p> <p>“ 17th December 1859.” “ Henry Baker.”</p> <p>By virtue of the warrant of attorney in the note, the prothonotary of Armstrong county entered judgment in the Court of Common Pleas for the amount thereof, to No. 114 of November Term 1859. June 5th 1861, plaintiff issued fi. fa. to No. 68 of September Term 1861, on which the sheriff returned “No goods.” The liens of record in Armstrong county against J. M. Orr, on the 19th day of December 1859, amounted to nearly $16,000. The judgments entered of record in the same county, before the 17th day of May 1860, the day on which execution could have been issued on the plaintiff’s judgment, amounted to from $6000 to $10,000 more. All the real estate of J. M. Orr was sold at judicial sale at or before April 1861, and the proceeds applied to the liens which were prior to the judgment of Henry Baker, for the use of Hugh Campbell. The real estate of J. M. Orr, in Butler county, was sold, and the proceeds were not sufficient to satisfy the liens in that county. It was averred by defendant that Campbell had extended the time of payment to Orr for six months, during which time Orr was solvent; and reference was made to the “testimony of Orr in the judge’s notes but none of the testimony was printed in the paper-books of either plaintiff or defendant.</p> <p>“ 1. The plaintiff requested the court to charge the jury that the contract of the defendant was to pay the amount of the note, if Orr failed to pay the same at maturity, and that the liability of Baker was fixed at the maturity of the note, by the failure of Orr to pay at that time.</p> <p>“ 2. That the taking of a new note for usurious interest on this note and others, and the making of a verbal promise in consideration of such new note to give further time on the judgment, will not relieve the defendant from liabilities in this suit.</p> <p>“ 3. That an agreement to give time necessary to discharge a surety, must be such a one as can be enforced against the principal creditor.</p> <p>“ 4. That if the jury believe that Orr’s estate in Armstrong county was insolvent at the maturity of the note, the plaintiff is entitled to recover.”</p> <p>The court below (Campbell, P. J.) responded as follows:—</p> <p>“1. We answer that, although the defendant guaranteed the payment of the note when due, yet if the plaintiff retained the note, entered judgment upon it, and failed to issue a,n execution till June 1861, if the plaintiff could with due diligence have collected the money of Orr, and failed to do so, the defendant -would not be liable; but if Orr was insolvent, and the amount could not with reasonable diligence have been collected, the defendant is liable, and the plaintiff is entitled to recover.</p> <p>“ 2. We answer this point in the negative, unless the maker of the note was insolvent; if the jury should find that time was given when the note might have been collected from Orr.</p> <p>“3. We answer this point in the affirmative, but the failure to follow the maker of the note with due diligence, if he was solvent, would release the guarantor.</p> <p>“4. The plaintiff was not bound to follow the maker out of the neighbourhood. If he was insolvent in the county and neighbourhood, and the note could not be collected without following him to a distant part of the state, or the United States, he may sustain his action on the guaranty.”</p> <p>Under these instructions there was a verdict and judgment in favour of defendant. Whereupon the plaintiff sued out this writ, and assigned for error the refusal of the court below to affirm the points propounded on the trial as above.</p>

<p>Error to the Common Pleas of Lawrence county.</p> <p>On the 21st of October 1856, a judgment was entered in the Common Pleas in favour of Enoch Dean against' Daniel Kennedy and John K. Kennedy, on a bond for $3500, with a warrant of attorney, payable in instalments, and to September Term 1859 execution was sued out by the plaintiff for the third instalment, viz. $1500.</p> <p>On the 31st of August 1859, on the petition of the defendants, alleging misrepresentation in the contract under which the judgment-bond was given, the judgment was “ opened, and the defendants let into a defence without prejudice to the lien, which is to remain good in the mean time for the amount which shall be recovered, the defendants to plead to issue forthwith, and the case to go to trial without delay, at May Term.”</p> <p>The defendants accordingly pleaded “payment with leave, to give in evidence breach of covenant, fraud, and misrepresentation, want and failure of consideration.” On trial, the balance due on the last instalment was reduced to $544.59.</p> <p>On motion of plaintiff a new trial was granted, which resulted in a verdict in favour of the plaintiff for $700, with $104.67 as interest from July 1st 1859, being the balance of the last instalment, after allowing a deduction of $800.</p> <p>The defendants’ counsel thereupon moved the court to enter judgment without costs, and that the plaintiff be ordered to pay the defendants’ costs of trial. The court below discharged the rule, and gave the plaintiff “leave-to issue execution for the amount of the verdict and original costs, upon giving security for the costs which the defendants may be entitled to recover in this case, to be approved by an associate judge, or if the plaintiff prefers, he may collect all of said verdict except what shall be necessary to pay defendants’ costs; if they shall recover any, this order to be without prejudice to the collection of the costs that'the plaintiff may be entitled to recover.”</p> <p>The plaintiff’s bill was $78.61, that of the defendants was $208.16.</p> <p>The refusal of the court below to enter the judgment without costs, and compel the plaintiff to pay the defendants’ bill, were the errors assigned here by the defendants.</p> <p>L. Taylor, for plaintiffs in error.</p>

<p>Error to the Common Pleas of Allegheny county.</p> <p>This was an action of debt, by C. B. Seely against Alexander Bates, for the purchase-money of real estate, in which the following case was stated for the opinion of the court:—</p> <p>August 8th 1863, O. B. Seely sold to Alexander Bates five acres of land (more or less), situate in Collins township, Allegheny county, Pennsylvania, commencing on Hiland lane, at the corner of ground of the heirs of Isabella M. Beatty, deceased ; thence along said lane N. 19f- degrees E., 20 perches to a post; thence south along land of D. Negley, 97 degrees E. 39 1-100 perches to a post, 25 degrees W. 20 3-100 to a post; thence along lands of said Beatty’s heirs, N. 67 degrees W., 40 92-100 perches to the place of beginning, at and for the sum of $4000, payable as follows, viz.: $500 to be paid in hand, upon execution of the deed, and the residue, to wit, $3500, with interest thereon from date of sale, to be paid in five years— the interest to be paid annually. The plaintiff to execute and deliver a good and sufficient general warranty deed to Mrs. Anna Bates for said land, and the said defendant and Mrs. Anna Bates to execute and deliver to plaintiff a sharp mortgage for the unpaid purchase-money as aforesaid. The plaintiff having tendered a deed in due form as aforesaid, on the 8th day of August 1863, and demanded payment of the said sum of $500, and also the mortgage for $3500, according to the contract aforesaid, and the defendant having refused to pay said $500, and to give said mortgage, this action is brought to recover said sum of $500, and the interest thereon from August 8th 1863 (without prejudice to the right of the said plaintiff to sue for and recover the residue of said purchase-money.)</p> <p>The said land ivas granted and conveyed by Daniel Negley and wife to said O. B. Seely and Annie B. Seely, his wife, their heirs and assigns, by deed, dated February 13th 1860, which deed contains the following provision, immediately following the description of the property, viz.: “ To be held by the said parties, of the second part in unity, under the decision of the Supreme Court of Pennsylvania, in the case of Stuckey v. Keefe’s Executors, vol. 26, Penna. Kep. p. 397.” Said deed is otherwise in the usual form, with covenant of general warranty.</p> <p>Mrs. Annie B. Seely died August 3d 1861, leaving her said husband, and two children surviving. If the court is of the opinion that under the said deed from Negley and wife to C. B. Seely and wife, upon the decease of Annie B. Seely, the entire estate vested in C. B. Seely, and that the deed from him to Alexander Bates will convey a good title to the whole of said lot, then judgment to be entered for the plaintiff for the sum of $500, and interest as aforesaid; but if the court shall be of a contrary opinion, then judgment to be entered for the defendant for costs of suit.</p> <p>The court below entered judgment in favour of the plaintiff on the case stated, with costs, which was the error assigned by the defendant.</p>

On the 18th of May 1861, Robert Hunter presented his petition to the Quarter Sessions, asking for the appointment of viewers to lay out a private road for his use, from his residence to a public road, through lands of Jacob Neno and David M. McGunigle. On this petition, three viewers were appointed, who, on the 28th of May, reported in favour of the road as prayed for, assigning no damages for the persons through whose land it was laid out.

<p>Error, to the District Court of Allegheny county.</p> <p>This was an action on the case by John Ramsey against James R. Fleming, to recover damages for the defendant’s neglect and refusal to fence a private road leading from “the Keen Farm” through the plaintiff’s land, to the Washington road, and used by the defendant as the owner and occupant of the farm.</p> <p>This road was laid out in 1818, upon the petition of Timothy Keen, from his own land through the land of Jacob Harger, now owned by the plaintiff, and ordered to be opened at the expense, of the petitioner, of the width of twenty feet. It was soon after opened, and, with the exception of a trifling change at one point, has been used ever since by Timothy Keen and the subsequent owners and occupants of “ the Keen Farm,” as originally laid out. The land through which the road was laid out and opened was afterwards conveyed by Harger to Samuel Borland, who, by deed bearing date the 10th of April 1837, conveyed it to the plaintiff, who still owns and occupies the same, with the exception of about twenty acres conveyed to his son, John Ramsey, Jr. The length of the road through plaintiff’s land, excluding the portion embraced in the twenty acres owned by .John Ramsey, Jr., is about one hundred .and eight, or one hundred and ten perches.</p> <p>Timothy Keen, for whose use the said road w’as laid out, by deed bearing date April 30th 1838, sold and conveyed “ the Keen Farm” to Thomas Burt, who, by deed dated May 3d 1839, granted and conveyed the same to the defendant, James R. Fleming, who, with-his tenants, in the occupancy of said farm, have since used the said road. In 1856 the defendant also purchased a portion of what constituted the Harger tract, when the road was laid out, immediately adjoining “the Keen Farm,” and extending along the plaintiff’s line, -where the road is opened for the distance of one hundred and eight perches.</p> <p>On the trial, John Ramsey, Jr., was admitted as a witness for plaintiff, under exception to his competency on the ground of interest.</p> <p>The plaintiff contended that he was entitled to maintain this action on two grounds:</p> <p>1st. That by the Act of 13th June 1836, it is made the defendant’s duty, as owner and occupant of “the Keen Farm,” to fence the road through plaintiff’s land.</p> <p>2d. The defendant, for a sufficient consideration, undertook and promised the plaintiff to fence the said road, and to keep the fence in repair.</p> <p>The defendant denied that he was bound by the Act of 13th June 1836, to fence the road used by him through plaintiff’s land, because the road was laid out - and opened under the Act of 6th April 1802, which contained no provision requiring the road to be fenced at the expense of the person or persons at whose request the same was laid out; and because the Act of the 13th June 1836 was not intended to apply to private roads already laid out and opened, but only to such as should thereafter be laid out and opened.</p> <p>The defendant accordingly requested the court to instruct the</p> <p>1. That this road being laid out under the Act of 6th April 1802, the petitioner for the road, Timothy Keen, his heirs and assigns, were not bound nor liable to fence said road, and even had the defendant, which is denied, promised to pay the plaintiff for the fencing done to said road, it is a nudum pactum, and the plaintiff cannot recover.</p> <p>2. That if the jury believe that the farm of Timothy Keen, the original petitioner for said road, is now owned by the defendant, Jacob Bradw'ell, Thomas Steele, Esq., and John Silk, as vendees under the Timothy Keen title, and that they and their tenants, as owners of the said Keen land, used said road, then all said parties, and not the defendant alone, would be liable for fencing said road, if Timothy Keen, his heirs and assigns, are liable by law to fence the same, and plaintiff cannot recover in this case.</p> <p>3. If the jury believe that this road was laid through the Harger farm from the land of T. Keen, and that the plaintiff and his son, as vendee or owner under him, of part of said Harger land, and also the Methodist church, Charles Matters, vendees of the said Harger land, all use the said road, and have so used it for years before said suit was brought, in connection and in common with the vendees of the Timothy Keen farm, then the plaintiff cannot recover in this case.</p> <p>4. The Court of Quarter Sessions has jurisdiction of the whole matter to fix and apportion the amount that each party using said road shall contribute, and make all necessary and proper decrees in the premises, and the District Court has not jurisdiction of the subject-matter of this case, and the plaintiff cannot recover.</p> <p>5. That if the jury believe that a second arrangement and agreement was made on the ground different from the one (if any was made) before the surveyors went on the ground, the second is the agreement, and the first is superseded, and there is no such agreement proved to have been made on the ground as would entitle plaintiff to a verdict.</p> <p>6. That if the jury believe that the vendors under whom both parties claim, had agreed many years ago that the plaintiff’s vendees, their heirs and assigns, should keep up the fence claimed for in this case at their own expense, and it has always been so kept up, there is nothing in this case which would entitle the plaintiff to recover.</p> <p>7. That there is no such agreement proved in this case as takes the case out of the Statute of Erauds; the alleged agreement is not in writing, and void.</p> <p>8. The plaintiff is barred by the Statute of Limitations: and,</p> <p>9. That on all the evidence the plaintiff cannot recover.</p> <p>The learned judge before whom the case was tried, after stating the facts of the case, charged the jury as follows :—</p> <p>- “What construction, then, is to be given to the Act of 13th June 1836 ? What is its meaning, and the extent of its application ? It seems to me that its provisions are general, and that it was intended to embrace all private roads, whether laid out and opened before or after the date of its passage. There is nothing in its terms expressly limiting and restricting its application to roads thereafter to be laid out. The duty which it imposes is founded on the clearest principles of equity and justice, and there is the same reason for requiring its performance in the one case as in the other. Looking, then, at the terms of the provision, and the reasons for its requirements, there appears to be no ground for the construction contended for by the defendant’s counsel in this case.</p> <p>“ Perhaps it would not be a constrained construction to hold that the provision in the Act of 1802, that a private road ‘should be opened and kept in repair by and at the expense of the person or persons at whose request the same was granted and laid out,’ embraces, by implication, the duty of fencing the same. Such seems to have been the opinion of the commissioners who reported the Act of 1836, for, in their remarks upon the various provisions, they do not intimate that they have made any change in the law in this respect. Whether the Act of 1802 is susceptible of such a construction or not is a question not necessary to be determined in this case, as [the Act of 1836 makes it the duty of all persons, their heirs and assigns, for whose use a private road is laid out and opened, to fence the same. The defendant, then, as the owner and occupant of ‘the Keen Farm,’ is bound to fence the road through the plaintiff’s land, so long as he continues to use the same in connection with his occupancy of the said farm.] The duty of fencing the said road arises out of his use of the said road in connection with his ownership and occupancy of ‘the Keen Farm,’ and not from the use of the said road, in connection with his ownership and occupancy of a portion of the Harger tract.</p> <p>“ II. The plaintiff alleges, in substance, that after he had taken a nonsuit, in consequence of the non-attendance of his witnesses, in a previous action brought against the defendant for his neglect and refusal to fence the road, it was proposed by the defendant, and agreed to by the parties, in order to settle the controversy between them — the plaintiff claiming that the road was on his land, and therefore the defendant was bound to fence it, the defendant denying that the road -was on the plaintiff’s land, and alleging that it was on his own land, and therefore he was not bound to fence it — that three surveyors should be chosen to ascertain and determine on whose land the road' was actually laid, and if it was found to be on plaintiff’s land, that then the defendant would fence the said road, but if it was found to be on the defendant’s land, then the plaintiff would keep up the fence along the said road: that the parties accordingly selected three surveyors for the purpose, who were notified to meet on the ground, and on the day appointed two of the surveyors attended, and in the absence of the third, it was then and there agreed by the said parties that the two surveyors in attendance should run and fix the line dividing the plaintiff’s land from the defendant’s, and thus ascertain and determine on whose land the said road was actually laid — and that the line so run and fixed by the said surveyors should be final and conclusive of the dispute between the said parties; that the line was accordingly run and marked on the ground by the said surveyors, and it was found that the road was wholly on plaintiff’s land.</p> <p>“ The defendant denies that any such agreement as alleged was made between him and the plaintiff; and his counsel contends that if the evidence proves anything, it proves tlia-t two agreements, different in their character, were made; one at the office of Mr. Mahon, testified to by Mr. Aughinbaugh, and the other on the ground, testified to by the surveyors : and that the alleged agreement, if proved, was a nudum factum, and the defendant is not bound by it.</p> <p>“ The jury will determine, from the evidence, whether any agreement, such as alleged by the plaintiff, was made between the parties; what were the terms of such agreement, if any were made; and whether there was any, and what change made in the agreement by the parties on the ground, in the presence of the two surveyors ? Did the defendant, in order to settle the dispute between himself and the defendant, agree that if the road was on plaintiff’s land he would fence it, and did the parties select three surveyors named, for the purpose of determining on wdiose land the road was actually laid ? And did they afterwards agree that the two surveyors in attendance, instead of the three named, should run and determine the line dividing the plaintiff’s land from the defendants, for the purpose of ascertaining on whose land the road was actually laic! and opened ?</p> <p>“ If the jury find that there ivas a controversy between the parties in regard to the fencing of this road, and that in order to settle and determine the dispute, the defendant agreed that if the road was on the plaintiff’s land he would fence it, and that for the purpose of determining whether the road was on the plaintiff’s or defendant’s land the parties agreed to select, and did select three surveyors to run, ascertain, and fix the line between them; and that on failure of one of the surveyors to attend on the day appointed, they then agreed that the two in attendance should run and ascertain the said line for the purpose of determining on whose land the said road was actually laid, and did agree that the line so run and fixed by them should be final and conclusive of the dispute between them; and that said line, as run and marked on the ground by the said surveyors, showed the road to be wholly on plaintiff’s land — then there was a sufficient consideration to support the agreement, and this action will be thereon for the defendant’s failure to perform the same. The compromise and settlement of the controversy between the parties vras a sufficient consideration to support the alleged agreement, and the defendant was bound to perform it, independent of his liability to fence the road under' the provisions of the Act of Assembly, and without reference to the question of his liability under said act.</p> <p>“ III. Another ground of defence set up to this action, is that the defendant is not now, nor was he at the institution of the action, the sole owner of ‘ the Keen Farm,’ but that parts of it are owned by Jacob Bradwell, Thomas Steele, and John Silk. The evidence shows that the defendant, some years after his purchase, sold thirty-two acres to Jacob Bradwell, one acre to John Silk, and the eighth of an acre to William Silk, now owned by Thomas Steele, in connection with other land. We may set aside, as irrelevant to the question, the acre and an eighth sold to the Silks, as the evidence shows that these pieces have no connection with the road. The evidence shows that Bradwell occasionally uses the road. Is the fact that Bradwell so uses the road in connection with his occupancy of his portion of ‘ the Keen Farm,’ sufficient to defeat this action, and prevent the plaintiff from recovering from the defendant ? It may be true, as contended by defendant’s counsel, that Bradwell is bound to contribute to the expense of fencing the road, and keeping the fence in repair. But the court decline to charge that there can be no recovery against the defendant in this action, because Bradwell may be ■also bound to bear a portion of the expense of fencing the said road. The law imposes upon the defendant, as ow7ner and occupant of ‘the Keen Farm’ (excepting the part sold), the duty of fencing, or contributing to the expense of fencing the road through plaintiff’s land, so long as he continues to use and travel the same; and this court has jurisdiction to enforce the performance of this duty, and to compel the payment of such damages as the plaintiff may have sustained, in consequence of the defendant’s neglect and refusal to perform his duty in this behalf. Under the Act of 1836, the defendant is bound to contribute his proportion to the expense of fencing the road over plaintiff’s land, and for his failure in this respect, the plaintiff may maintain this action, and recover such damages as he may have sustained thereby. If the jury find that the defendant agreed to keep up the fence along the road if it was on plaintiff’s land, as he now admits it to be, then he is liable for such damages as the plaintiff may have sustained by his failure to fulfil his promise.</p> <p>“ TV. If other parties, who have not obtained the right to use the road in the mode provided by law for this purpose, occasionally use the said road, this will not prevent the plaintiff from maintaining this action against the defendant; nor will the fact that the plaintiff occasionally may have used the road, defeat his right to maintain the action. As owner of the land over which the road is laid out, he has a right to use it in any way that will not prejudice or obstruct the defendant’s right of way. The defendant has only an easement, the right of passing and repassing over plaintiff’s land. As owner of the soil, the plaintiff has a right to pass over the same, if he does not obstruct the defendant. in the enjoyment of his easement.</p> <p>“ The defendant’s 1st, 2d, 3d, 4th, and 5th points are sufficiently answered in the charge, and the court, under the evidence in this case, decline to charge as requested in the 6th, 7th, 8th, and 9th points.</p> <p>“ If the plaintiff is entitled to recover, he is entitled to such damages as he has sustained in consequence of the defendant’s neglect and failure to perform his duty; and in no aspect of the case should the damages exceed the cost and expense of fencing the road through plaintiff’s land, and keeping the same in repair for a period of more than six years prior to the commencement of this action.”</p> <p>Under these instructions, there was a verdict and judgment in favour of the plaintiff. The case was thereupon removed to this court, when tire refusal of the court below to affirm the above points, the admission of John Ramsey, Jr., as a witness, and that portion of the charge which is printed above in brackets, were assigned for error.</p>

This was an action of assumpsit by Jake Hill against John Cooley. The plaintiff declared on a negotiable promissory note, of which the following is a copy, viz.:— “$650. “Buena Vista, February 16th 1860. “ Four months after date, I promise to pay to the order of Miller & McGuier, six hundred and fifty dollars, without defalcation, value received. “ Payable at N. Holmes Son. “No. —.

<p> Bight of obligor to defalcate against assignee of bond. </p> <p>An obligor in a bond cannot defalcate against the assignee of an assignee of a bond, a claim or set-off, which he holds against the first assignee.</p>

<p> Proper mode of stating facts in case stated, for the opinion of the court. </p> <p>It is essential to a case stated, that the facts be agreed upon, so that the court may have nothing to do but pronounce the law arising out of them. And if the facts are not so agreed upon, the Supreme Court will send the case back for retrial.</p>

<p>Contract “to advance the freight,” construed.— Custom of dealers not admissible against terms of special contract.</p> <p>1. Where, in a contract under seal, for the sale and delivery of oil, it was stipulated that the vendee was “to advance the freight on said oil,” and to deduct the amoirixt thereof out of the price agreed on upon settlement; and that the oil was “ to bo paid for on delivery:” Held., that the vendee, if required, was bound to advance money to pay freight before the oil was shipped ; and that if he refused so to do, the vendor might treat the contract as rescinded.</p> <p>2. In an action by the vendee for damages for non-delivery, it was held error to receive evidence of a general custom on the subject of paying freight to the carrier on delivery of goods, because the parties had made their own contract, which was susceptible of easy explication, needed no aid from custom, and could not be controlled, by it.</p>

<p>Error to the Common Pleas of Allegheny county.</p> <p>This was an amicable action, in which James Robinson was plaintiff, and John J. Covert was defendant; and in which the following ease was stated for the opinion of the court:—</p> <p>“ The plaintiff and defendant entered into an article of agreement, on the 1st day of July 1862, whereby they agreed as follows: Plaintiff sold, and did agree to convey, a farm of one hundred and four acres of land in Nottingham township, Washington county, Pennsylvania, to defendant for $4000; one thousand dollars to be paid on the 1st day of July 1862, and the balance to be divided into three equal annual payments, to be secured by bond and mortgage on the land, with interest on the same. The plaintiff agreed, that upon the payment of $1000, and a tender of the bond and mortgage, to execute and deliver to defendant a deed in fee simple, with covenants of general warranty, clear of all encumbrances; and the plaintiff covenanted that he was the owner in fee simple, and that one Sarah Parkinson or her heirs have no claim or interest whatever in said land, and that any supposed interest that said Sarah Parkinson may have had under the will of her father, upon the contingency of her sister Nancy dying without heirs, was barred by a deed made by said Nancy'and her husband, William Youden, to James Patterson, to bar the entail; said defendant, on the 1st of July 1862, and since that time, has refused to pay said $1000, and give said bond and mortgage, although the plaintiff executed and was ready to deliver a deed with general-warranty according to his agreement; but the defendant refused to perform his part of the agreement, because he says he is advised that under the will of her father, William Kinny, the said Nancy took but a life estate, unless she should have heirs of • her body at her death; and that the said deed of Youden and wife to James Patterson did not bar the entail, and vest the fee in the said Patterson.</p> <p>“ The clause in the will of William,Kinny, devising the land to his daughters, is in the following words, viz.-: ‘Likewise, I give unto my daughter, Sarah Parkinson, and my daughter, Rachel Hall, and my daughter, Nancy Kinny, all my real estate in Washington county, equally divided amongst them; but if my daughter, Nancy Kinny, should be called away by death, without an lawful heir, then I order her share of said-estate to be equally divided between my daughters, Sarah Parkinson and Rachel Hall.’ This will is dated 24th March 1824.</p> <p>“ After the death of the testator, an' amicable division of the land was lawfully and properly made between the three sisters, and the lot of one hundred and. four acres, now belonging to the plaintiff, and agreed to be sold to the defendant, was allotted to and accepted by Nancy Kinny. This amicable division took place shortly after the date of the will, within two or three years, and the parties have since that possessed the shares as allotted to them by said amicable division.</p> <p>“ The said Nancy is now living, and has no children; the said Sarah Parkinson and Rachel Hall are dead. The said Nancy, with her husband, William Youden, on the 13th day of March 1842, executed, acknowledged, and delivered, in due form of law, to James Patterson, a deed in fee simple of said tract of land, and after describing the land, are-the following words, to wit: ‘ The estate, title, and interest hereby granted or intended to, being all such interest and estate. in the lands aforesaid, by virtue of the devise aforesaid, or any part thereof, by virtue of any partition thereof, either already made, or hereafter to be made, as the said William Youden and Nancy his wife, or either of them, may claim now or hereafter, in law or equity; they, the said William Youden and Nancy his wife, designing and intending by these presents to bar any entailment or reversionary interest that might, by construction of the devise aforesaid, or of the will aforesaid, be supposed to attach to the estate given as aforesaid to the said Nancy, and they do by these presents declare that the grant hereby made, is an estate in fee simple, by which they intend to cut off, estop, and for ever bar all claims and estate whatever in tail, reversion, remainder, or otherwise; to the end and purpose aforesaid, the said Youden and wife have granted, bargained, and sold by the terms of this indenture, the property hereinbefore described.’</p> <p>“ On the 26th day of May 1842, William Youden appeared in the Court of Common Pleas of Washington county, and by his attorney moved that the said deed of himself and wife to James Patterson, for said land, might be entered of record as sheriffs’ deeds were entered, in order to bar the estate tail in said lands, which the court directed to be done; the deed was then forthwith duly entered of record as sheriffs’ deeds are entered in the said court, and the whole proceeding was recorded in the recorder’s office of said county, in Deed-Book ‘A,’ vol. 3, pp. 406, 407, and 408, on the same date, to wit, May 26th 1842.</p> <p>“ The said James Patterson afterwards, to wit, on the 30th of May 1842, conveyed the same land to William Youden, and the said Youden and Nancy his wife, by deed dated July 30th 1853, conveyed the same to the said plaintiff in fee.</p> <p>“ Rachel Hall, in her lifetime, released all her claim to said land.</p> <p>“ If the court be of opinion that the said will of William Kinny created such contingent estate, in regard to the portion of land devised to his daughter Nancy, that the same could be barred by the deed of said William Youden and Nancy his wife, to said James Patterson, and was so barred, and that said conveyance did vest the fee simple in said Patterson, his heirs and assigns, clear and discharged of any entail, contingent remainder in other contingent estate created by said will, then judgment shall be entered in favour of the plaintiff for $1000, with interest from the 1st day of July 1862; but if not, then judgment to be entered for the defendant; the costs to follow on the judgment. Either party shall have a right to sue out a writ of error herein.”</p> <p>The court below entered judgment in favour of the plaintiff, which was the error assigned.</p>

<p>Appeal from the Common Pleas of Armstrong county.</p> <p>This was an appeal by the Commonwealth of Pennsylvania, from the decree of the Court of Common Pleas of Armstrong county confirming the report of the auditor appointed to distribute the proceeds of the sheriff’s sale of the real estate of H. J. Arnold.</p> <p>The Commonwealth presented before the auditor three distinct claims against H. J. Arnold, which she asked to have paid out of the fund referred to him for distribution — first, as treasurer of Armstrong county for the years 1849 and 1850; second, as one of the sureties of Alexander Henry, treasurer of Armstrong county, for the years 1851 and 1852; and, third, as one of the sureties of Thomas McMasters, treasurer of Armstrong county for the years 1853 and 1854.</p> <p>1st. The evidence showed that H. J. Arnold gave bond in due form of law, and entered upon the duties of the office of treasurer on the 1st day of January 1849; that the auditor-general and state treasurer settled two accounts, respectively, on the 24th May 1851, and 15th November 1852, exhibiting a balance against him in favour of the Commonwealth, of $877.82, with interest to be added. That the auditor-general and state treasurer, on the 20th February 1855, opened the settlements of the accounts aforesaid for revision, without reservation of lien.</p> <p>2d. The evidence further showed that John Ralston, A. W. Flemming, John Montgomery, and H. J. Arnold became the securities of Alexander Henry, treasurer of Armstrong county, in bond duly executed according to law, dated 16th December 1851; that Alexander Henry entered upon the duties of the office of treasurer aforesaid on the 1st day of January 1852; that the auditor-general and state treasurer settled three accounts against him respectively, on the 20th June 1853, 14th August 1854, and 17th April 1855, showing a balance against him in favour of the Commonwealth of $1419.08, with interest to be added on $1809.08, from the 14th February 1855. The evidence further showed that Alexander Henry, at the time of said settlements, and afterwards, up to the 7th April 1858, was the owner of unencumbered real estate in the borough of Kittanning, equal in value to an amount more than sufficient to pay and satisfy such balance, and that Alexander Henry is now insolvent. The evidence further showed that John Montgomery, at the time of the settlement of the two first accounts, and up until 30th December 1854, was the owner of unencumbered real esta.te in Indiana county, Penna., equal in value to an amount more than sufficient to pay and satisfy such balance; that the said John Montgomery was elected the sheriff of Indiana county, and on the 30th December 1854, entered into recognisance and bond with sureties for the faithful performance of the duties pertaining to the office of sheriff of said county; that the real estate of the said Montgomery was sold at judicial sale and proceedings had on said recognisance to June Term 1858, in Indiana county, for the sum of $10,000, and the proceeds distributed to his creditors by auditor’s report, confirmed 1st October 1858.</p> <p>3d. The evidence further showed that H. J. Arnold and Alexander Henry became the sureties of Thomas McMasters, treasurer of Armstrong county, in a bond executed according to law, dated 2-2d December 1853; that the said Thomas McMasters entered upon the duties of treasurer on the 1st day of January 1854, and that the auditor-general and state treasurer settled two accounts against him respectively, on the 7th March 1855, and the 5th February 1856, showing a balance against and in favour of the Commonwealth of $1762.58, with interest to be added. That at the time of the settlement of the foregoing accounts Thomas McMasters was the owner of real estate in the borough of Kittanning, which a witness valued at $1800; that there were no other liens against him until after the year 1857, and that he is now insolvent. It further appeared that the auditor-general had not filed in the Court of Common Pleas of Armstrong county, any certified copies to be entered of the aforesaid claims against any of said treasurers, as required by the 4th section of the Act of the 16th April 1827. :</p> <p>On this statement of facts the general judgment and lien creditors of H. J. Arnold resisted the allowance of all and any portion of the claims of the Commonwealth out of the fund for distribution. First, as against H. J. Arnold, as treasurer of Armstrong county, because the lien of the Commonwealth, by virtue of the 12th section of the Act of 30th March 1811, has been suspended and lost by the opening of his accounts for revision on the 20th February 1855, and because of the neglect of the auditor-general to transmit to the prothonotary of the Court of Common Pleas of Armstrong county, to be entered of record, certified copies of the liens of the balance due the Commonwealth against him as such treasurer, as required by the 4th section of the Act of the 16th April 1827.</p> <p>They also resisted the claims of the Commonwealth against him as security of Henry and McMasters, treasurers of Armstrong county, on the ground applicable to both that the neglect of the auditor-general to transmit and have entered in the Court of Common Pleas of Armstrong county, as required by the 4th section of the Act of 16th April 1827, before referred to, certified copies of the liens obtained by the Commonwealth, by virtue of the 12th section of the Act of 30th March 1811, against both Henry and McMasters, treasurers as aforesaid of Armstrong county, as aforesaid, has lost her lien as to subsequent judgment-creditors against H. J. Arnold, their security, and upon the additional ground as to Henry, that the Commonwealth having neglected to present her claim before the auditor appointed to distribute the proceeds of sale of John Montgomery’s real estate in Indiana county, has forfeited her rights to recover the claim in this proceeding.</p> <p>The auditor rejected the Commonwealth’s claims, for reasons set forth in this report. This report, on argument of the exceptions filed against its confirmation, was sustained by the Common Pleas; which was the error assigned on this appeal.</p>

This was an action of debt by James B. Morgan against F. C. Negley for six months’ rent, falling due October 1st 1861, upon certain lots of ground used as coal and lime depots, in the city of Pittsburgh, which had been leased by said Morgan to Baldwin & Cheney, who, on the 20th of September 1859, assigned their interest as lessees to said F. C. Negley.

<p>Averment in declaration that “ plaintiff was ready and willing to receive and,pay,” must be proven. — Purchaser of oil in bond, duty of, under “ Revenue Law.” — Proper mode of presenting points to court on questions of evidence.</p> <p>1. The averments in a declaration that the “ plaintiff was ready and willing” to receive goods and pay for them on delivery and shipment, is a material one and necessary to be proved.</p> <p>2. Where oil, at a stipulated price, was to be delivered at the cars of a railroad depot, it was held, that a plaintiff, who sued for non-delivery of the same, must, in order to recover, prove his readiness to receive and pay for it.</p> <p>3. Where oil is purchased in bond, the purchaser is under no obligation to give the bond required from the owner by the 47th section of the Internal Revenue Laws.</p>

<p>Error to the Common Pleas of Cambria county.</p> <p>This was an. action, in tbe name of tbe Commonwealth on tbe relation of Thomas Duncan, Peter Ford, A. H. Rosenheimer & Brooks, and Mrs. Sarah Duncan, against Robert P. Linton, John S. Buchanan, and David Williams, and was founded on the bond given by Robert P. Linton, as sheriff of Cambria county, upon the allegation of a failure on the part of the sheriff properly to execute their respective executions placed in his hands, upon judgments in their favour against one George McCann.</p> <p>A writ of fieri facias was issued upon a judgment in favour of Francis Christy, endorsee of J. T. Christy, against the said George McCann, to No. 103, September Term 1859, returnable the first Monday (5th day) of September 1859, and placed in the sheriff’s hands on the 25th July 1859..</p> <p>On the 29th August 1859, four other writs of fieri facias were issued and placed in the hands of the sheriff, one at the suit of Thomas Duncan, one at the suit of Peter Ford, one at the suit of A. H. Rosenheimer & Brooks, and the other at the suit of Mrs. Sarah Duncan, Nos. 217, 218, 219, and 220, to September Term 1859 respectively, returnable tbe first Monday (5th day) of September Term 1859; upon which the sheriff endorsed the following levy: “ August 29th 1859, levied on a planing-machine, with all the'fixtures thereto belonging, as the property of George McCann. The above levy given in by John Fenlon, Esq., at Ebensburg.” On the same day (also at Ebensburg) the sheriff endorsed the same levy on the writ in favour of Francis Christy. On the 5th day of September 1859, a writ of fieri facias, at the suit of Morris L. Hallowell & Co., against the same defendant, was issued to No. 1, December Term 1859, and placed in the sheriff’s hands on said day, at 7 o’clock A. M., on which, on the 19th day of the same month, the said sheriff made a levy {inter alia) of the said “ planing-machine, with all the fixtures thereto belonging,” being at the time where the property was (about sixteen miles from Ebensburg), and having it in view. - On the 19th of September, the sheriff advertised the property, and sold the “planing-machine” on the 28th September 1859, for $500.</p> <p>After the sheriff had made return of the above writs, an auditor was appointed to make distribution of the proceeds, who reported the proceeds to the writ in favour of Morris L. Hallowell & Co., first satisfying (with the consent of the attorney for Hallowell & Co.) the writ in favour of'Christy; to which .report exceptions were filed, argued, and overruled by the court, and the report confirmed, which decree, on an appeal to the Supreme Court, was affirmed. See Duncan’s Appeal, 1 Wright 500.</p> <p>This action was then brought on the sheriff’s bond as above stated.</p> <p>On the trial, the plaintiff called John Fenlon, Esq., the attorney by whom the execution was sued out, as a witness, who was objected to by defendants as incompetent to testify to facts which would contradict or vary the return of the sheriff, as given in evidence by the plaintiffs; and also on the ground of interest, being liable over to his clients; but the court below overruled the objection.</p> <p>The defendants, as part of their defence, offered the testimony of Robert P. Linton, taken by the auditor and filed with his report. This was objected to by the plaintiffs, on the ground that it was no part of the record, that it would be permitting a party to testify in his own case, and because also the sheriff was interested from the time the levy was made; which objections were sustained by the court.</p> <p>The court below (Taylor, P. J.) instructed the jury as follows :—</p> <p>“ Taking the sheriff’s return on the writs — that the levy was given to him by Mr. Fenlon, the counsel of the plaintiffs in the executions in Ebensburg — as true, and it is so to be taken primá facie in his favour, and throwing out of view entirely the testimony of Mr. Fenlon, which does not conflict materially with the return, we are constrained to the conclusion that the defendant failed to perform his duty in the execution of the writs, in consequence of which the subsequent executions of Morris L. Hallo-well & Co. took the fund, which would otherwise have been appropriated to the executions of the parties suggested as plaintiffs on the record. If the levy was given to him elsewhere, it was his duty .to go and enter it in view of the property. He failed to do so, and the writs were postponed. This fixes his liability.</p> <p>“ The fund appropriated to the execution of Morris L. Hallo-well & Co. was $420.99. This sum, had their writs been duly executed, would have been appropriated pro rata to the executions of Thomas Duncan, Peter Ford, A. H. Rosenheimer & Brooks, and Sarah Duncan. Each of these parties would consequently be entitled to the amount which would have been appropriated to his or her execution, if the sheriff had done his duty, with interest from the final decree of the appropriation. But the executions of Thomas and Sarah Duncan having since been paid, as it has been shown, they have no claim, and are not entitled to recover.</p> <p>“ The pro rata share of Rosenheimer & Brooks would</p> <p>have been, as it is agreed ..... $120.84 “ Interest from 28th January 1861 . . . 17.04</p> <p>$137.38</p> <p>“ The pro rata share of Peter Ford would have been . $109.18 “Interest from the same time .... 15.46</p> <p>$124.64</p> <p>“ We instruct you then, gentlemen, to find for the plaintiff, the Commonwealth, the penalty of the bond; and if these calculations are correct — and we understand their accuracy to be assented and agreed to — to find for</p> <p>“A. H. Rosenheimer & Brooks .... $137.38 “ And for Peter Ford...... 124.64.”</p> <p>There was a verdict and judgment accordingly. Whereupon this writ'was sued out, and the admission of John Fenlon, Esq., as a witness, the rejection of the testimony of R. P. Linton, as reported by the auditor, and the instruction of the court below to the jury that “ if the levy was given to the sheriff elsewhere, it was his duty to go and enter it in view of the property,” were assigned for error.</p>

<p>Ekroe, to the Common Pleas of Cambria county.</p> <p>This was an action of ejectment, by Josiah O. Burk against Jeremiah Gleason and Michael Gleason, for a tract of land in Summerhill township, Cambria county.</p> <p>Both parties claimed under William Burk, deceased. The widow, Margaret, intermarried with Jeremiah Gleason, one of the defendants, was, with her husband, at the institution of the suit, in possession of the land in controversy, and his defence rested on her title or right of possession. The plaintiff was a brother of deceased.</p> <p>William Burk died in 1854, seised of the land in controversy, leaving his widow, Margaret, but no children. He left, however, several sisters and brothers, of whom Josiah C. Burk was one.</p> <p>After Burk’s death, his widow retained and sold his personal property for about $100, a considerable portion of which was applied in the payment of his debts, funeral expenses, and taxes.</p> <p>She soon afterward left the place and the county, and returned to it about four years afterward, having in the mean time married Jeremiah Gleason.</p> <p>On the 3d of December 1860, upon the petition of the plaintiff, an inquest was awarded by the Orphans’ Court, to make partition or valuation of the real estate of William Burk. An inquisition was returned on the 6th of March 1861, and confirmed nisi. On the 11th of March 1861, exceptions were filed for the widow, which, on the 28th of June 1861, were withdrawn, and the inquisition confirmed absolutely. On the 3d of December 1861, the real estate, in consummation of these proceedings, was decreed to Josiah C. Burk. And this record, with the other facts stated, was the plaintiff’s case, and the ground upon which he sought to recover the possession.</p> <p>For the defence it was shown that letters of administration were issued upon the estate of William Burk, on the 1st of April 1861, and that upon the claim of the widow, under the Act of 14th April 1851, the administrator, on the 8th April 1861, caused an appraisement of'the real estate of William Burk to be made for her benefit, which was returned to the court, approved and ordered to be filed, on the 10th of June 1861. The appraisement was $225, and upon this the defence was rested.</p> <p>ETo notice of these proceedings was given to the heirs of William Burk.</p> <p>The plaintiff requested the court to charge the jury:—</p> <p>1. That the benefit of the Exemption Law of 1851 is made and intended for the widow and children of the decedent; and such widow is not entitled to its provisions after she has become the wife of another.</p> <p>2. The brothers and sisters of William Burk, being his nearest relatives, are his heirs at law, and succeeded to his title immediately upon his death; and the title so acquired could only be divested by a claim of the widow for her $300, in the usual manner, and within a reasonable time.</p> <p>3. The lapse of six or seven years was not a reasonable time, and she is postponed because of her own laches.</p> <p>4. The widow having retained the personal property of her husband, without administration and without appraisement, cannot, after a lapse of six or seven years, claim her $300 out of the real estate.</p> <p>5. There being no personal property, and no debts in 1860, the heirs at law had no right or power to administer, and could only proceed by partition.</p> <p>6. The widow, whose peculiar province it was to administer, having refused or neglected to do so, until more than six years after her husband’s death, and until proceedings in partition have been commenced by the heirs at law, cannot afterward raise an administration to their prejudice.</p> <p>7. That on confirmation of the partition on the 6th of March 1861, the title became complete, and conld not afterward be defeated by any claim of the widow.</p> <p>8. The filing of exceptions by the widow was a fraud upon the court, inasmuch as it postponed a decree of the court until an adverse title could be procured by the widow.</p> <p>9. The appraisement of the real estate for the widow, and its approval by the court, without any notice to the heirs at law, is void as to them, and confers no title on the defendant.</p> <p>10. The former widow having participated in the proceedings in partition, is estopped from denying their validity, or contesting the title obtained under them.</p> <p>11. The former widow having filed exceptions to the return of the inquest of partition, and prevented its confirmation, cannot afterward take advantage of the delay caused by her own acts ; and the confirmation of the partition will be held, so far as she is concerned, to be made as of the day when it would have been made, in the absence of her exceptions.</p> <p>12. The withdrawal of the exceptions by the widow, and her acquiescence in the decree of the court, was a waiver of her rights under the appraisement, and_an .aequiescnce.in the title of the plaintiff, which estops her from contesting it now.</p> <p>13. The conduct of the widow in procuring an appraisement for her benefit, to be confirmed ex parte by the court, while proceedings in partition in which she was a party were pending, was a fraud upon the court, and gives no validity to a title so acquired.</p> <p>The court below (Taylor, P. J.) negatived the plaintiff’s points, and directed the jury to find in favour of the defendants; which was the error assigned here by the plaintiff.</p>

<p> Power of guardian to act for several wards on partition of real estate. </p> <p>1. A single guardian may act for several wards i$ all matters relating to their estates, including partition.</p> <p>2. Therefore, where partition of the real estate of several minor children had been made, on the petition of their guardian, and his acceptances for them, together with the inquisition and valuation, had been confirmed absolutely, it was error in the court to set aside the inquest and proceedings under it on the ground that the guardian could not act for more than one ward, especially where more than two years had elapsed since the inquest, and the parties had adjusted their lines, made improvements, and purchased adjoining lands.</p>

<p>Appeal from the District Court of Allegheny county.</p> <p>This was an appeal by Samuel Simes, from the decree of the District Court dismissing a bill filed by him on the equity side of the court, against William H. Everson, Barclay Preston, Thomas J. Hoskinson, and Christopher Graff, partners, trading as Everson, Preston & Co.</p> <p>The bill set forth, that the firm of Kirk & Rhodes, composed of Olivet Kirk, William R. Rhodes, and John Thompson, engaged in the manufacture of cars in Beaver county, Pennsylvania, failed October 24th 1857, being at that time indebted to various persons to the amount of $66,669.71, and possessed of assets to the amount of $59,738.40, and that the respondents were creditors to the amount of- from $10,000 to $12,000.</p> <p>That on January 29th 1859, John Thompson and Olivet Kirk executed -an article by which they agreed that, in consideration of a full and final release of all the liabilities of the firm of Kirk & Rhodes, by the creditors thereof, enumerated in an annexed schedule, they would relinquish all claim to the assets of the firm, and pay to the creditors, or trustees appointed by them, $10,000.</p> <p>That on the same day a writing was drawn up and attached to said article, to be signed by the creditors referred to in said article, releasing the firm from all claims of the creditors against them, and providing for the appointment of trustees to take possession of the assets of the firm, and of the $10,000. Copies of these writings and the schedules annexed, were attached to and made part of the bill.</p> <p>That the last mentioned of these writings was signed by several of the creditors, and both were shown to the respondents, who approved of the arrangement, but refused to sign the agreement to release, appoint trustees, &c., unless one-half of their claim was paid them in money. On account of this refusal the complainant, on the solicitation of John Thompson and the respondents, on February 21st 1859, took an assignment of $6000 of respondents’ claim against Kirk & Rhodes, for which he gave them his note of that date for $6000, payable to their order in thirty days from date. For which note the respondents gave the complainant the following receipt and agreement, viz.:—</p> <p>“ Whereas, we have this day assigned to Samuel Simes, of Philadelphia, six thousand dollars of our claim against Kirk & Rhodes, and for which he has this day given us his note at thirty days from date.</p> <p>“Now, we agree that said note shall be returned to the said Samuel Simes on the failure of all the creditors of Kirk & Rhodes, or of so many of them as will consummate the same, to sign an agreement for the appointment of trustees, &c., for the creditors of Kirk & Rhodes, now partly signed, and on his the said Samuel Simes cancelling the said transfer of six thousand dollars, and re-assigning the same to us.</p> <p>“ Everson, Preston & Co.</p> <p>“Pittsburgh, Penna., February 21st 1859.”</p> <p>That the respondents, at the time of giving the complainant the above receipt and the assignment of $6000 of their claim, and receiving his note, signed the agreement to release and appoint trustees, &c., above referred to, with the following additional proviso, viz.:—</p> <p>“ We, the undersigned, sign and agree to the foregoing agreement, with the following additional thereto, viz., that the same is to be binding and in full force on the signing of this paper by all the creditors in the annexed schedule within thirty days;</p> <p>“Pittsburgh, February 21st 1859.”</p> <p>That the agreement between the complainant and the respondents, at the time of his giving them his note, was, that if all the creditors named in the schedule annexed to the agreement to release and appoint trustees, &c., heretofore referred .to, should sign said agreement within thirty days from February 21st 1859, he would pay his note to the respondents, but that if all of said creditors should not sign said agreement within that time, then his note was to be returned to him upon his re-assigning to the respondents the $6000 of their claim against Kirk & Rhodes, that day assigned to him.</p> <p>That all the creditors named in the schedule did not sign the agreement within thirty days, but certain specified creditors, whose claims amount in the aggregate to $18,111.09, refused to sign, and have not yet signed it. That others specified in the bill, whose claims amount to $28,251.63, signed the agreement on the condition that it should be void and not binding unless signed by all of the creditors named in the schedule within thirty days from February 21st 1859.</p> <p>That by reason of this, creditors named in the schedule, whose claims amount to $46,362.72, were not bound the and it was therefore void and not binding on any of the parties thereto, and was so considered by the parties, and the arrangements intended to be provided for by the agreements were never carried into effect, nor were trustees ever appointed.</p> <p>That the complainant executed a re-assignment to the respondents of the $6000 of their claim against Kirk & Rhodes, which they had on February 21st 1859 assigned to him, which reassignment he caused to be delivered to them on June 21st 1859, at which time he demanded the return of his note; that the respondents refused to return the note, and still have it in their possession.</p> <p>That on the 10th of June 1859, John Thompson entered into an agreement with P. Kimball and R. Myers, in which he agreed that if Kimball and Myers, or either of them, would obtain the control, by conditional releases, of $53,584.87 of the claims of creditors of Kirk & Rhodes, enumerated in the schedule before referred to, he would convey to them, by good title, all the assets of that firm, and give them his endorsed notes for $10,000; and that on July 20th 1859, the respondents executed an agreement, in which, after reciting part of the agreement last referred to, they agreed to assign to P. Kimball all their claims against Kirk & Rhodes, for which assignment they were to receive Kimball’s notes for $10,756.29$.</p> <p>That this assignment was to be of the whole amount of their original claim against Kirk & Rhodes, viz.: $12,022.19, which included the $6000 which they had previously assigned to the complainant; and that in this transaction, which was after they had received the re-assignment from the complainant, they acted as owners of the whole claim, as they really were.</p> <p>Copies of these two last-mentioned agreements were also attached to the bill.</p> <p>That some time after this, the respondents commenced an action against the complainant on his note in the District Court of Philadelphia, to No. 163 of December Term 1859, which on February 29th 1860 they discontinued, for the purpose and with the intention of bringing suit upon it against the complainant in the county of Allegheny.</p> <p>The bill, after interrogating the respondents as to these facts, prayed that they be decreed to deliver up the note to the complainant; and further, that they be restrained, by injunction, from proceeding in and from commencing any action at law against complainant on said note; and also that they be restrained from endorsing, assigning, or transferring, in any way, said note to any other person or persons whatever; and for such other relief, &c.</p> <p>To this bill an answer was filed, and the case referred to a-master, whose report, in the opinion of the court, sustained the material allegations of complainant’s bill.</p> <p>Exceptions were filed to this report, but they were overruled by the master, and renewed in court.</p> <p>On argument, the court below delivered the following opinion:—</p> <p>“As the proofs fully sustain the allegations of complainant’s bill, he is entitled to the relief prayed for, if the court has jurisdiction.</p> <p>“ But the bill was not filed until after the maturity of the note, and therefore the plaintiff has a complete defence at law to any action that may be brought against him on the note by the defendants or their subsequent endorsees, and in this respect he does not need the aid of a court of equity.</p> <p>“It is true that we have jurisdiction to enforce the specific performance of contracts in certain cases; but we are of opinion that this agreement does not fall within that class, inasmuch as the plaintiff has a full and adequate -remedy at law. This bill must therefore be dismissed, with costs.”</p> <p>Which was the error assigned.</p>

<p> Acts and declarations of a person in a fiduciary capacity not binding on him individually. </p> <p>1. Where an endorse^ of the paper, of insolvent debtors accepted the position of trustee to collect their assets and pay over proceeds to their creditors, and as such paid over to the holders of notes endorsed by him, sums of money on account of their claim, such payments were held not to be an acknowledgment of the debt, so as to take their claim against him out of the Statute of Limitations.</p> <p>2. Hence where the holders of the notes allowed more than six years from</p> <p>maturity to pass before bringing suit against the endorser, and the only payments made by him on account thereof were made as trustee for creditors, and not on his individual account, the Statute of Limitations was held a bar1 to the action. ,</p>

<p>Action for negligence. — Plaintiff held to observance of ordinary care.— Onus of proving negligence. — Reasonable care defined.— Court not bound to charge as requested by party on facts assumed to be true, when they are disputed.</p> <p>1. One who passes along an obstructed highway is bound to observe ordinary care, that is, such care as a reasonably prudent man, under the peculiar circumstances of the case, would exercise to preserve himself and property from injury.</p> <p>2. Where, in an action against a railroad company to recover damages for an injury sustained by a collision with cars standing on the track in a public highway, the accident occurring in the daytime, in the view of witnesses who testified to all the particulars, the jury were instructed that if there was negligence on the part of the plaintiff which contributed to the disaster, he was not entitled to recover; and by the pleadings, and the testimony to prove neg ligence of plaintiff offered by the defendant, the question of negligence was fully raised: it was held immaterial upon whom the onus of proving or disproving negligence was cast by the court, as it was for the jury to determine, under the circumstances, whether or not the plaintiff had been guilty of inexcusable negligence.</p> <p>3. It is not error in such an action to refuse to instruct the jury that “it lay upon the plaintiff to show that he had used that degree of care and prudence which was necessary to have prevented a collision with defendants’ cars, and that he must show this affirmatively;’’ nor that “in a public street and not dangerous per se, if a person comes against an obstruction in the daytime and receives injury, he cannot recover against the wrongdoer, without showing affirmatively that he had used that amount of care which was required under the peculiar circumstances of the case to pass by it, and having used the same is nevertheless damagedsuch standards of care are not reasonable, as, under them, the occurring of the accident would have been proof of negligence.</p> <p>4. Where a party desires to obtain instruction on a given hypothesis, he must state the facts hypothetically, if they are controverted: hence, where disputed facts were assumed in a point propounded by the plaintiff in error to the court below, the refusal to charge as requested was not error.</p>

<p> Issue in divorce case, when to he applied for. </p> <p>A party to a libel for' divorce is entitled to an issue for tlie trial of disputed facts, if he exercise his right reasonably and with vigilance: but where the respondent's answer concludes with a verification and not to the country, and no issue is asked until after the report of the commissioners appointed with the assent of both parties, and when the court were about to make a final decree, the application is too late, and the refusal to award the issue is not error.</p>

<p>Error, to the District Court of Allegheny county.</p> <p>This was an action of covenant, by Benjamin Coursin against •The Pennsylvania Insurance Company on a policy of insurance, to which defendants pleaded non est factum, covenants performed absque hoc, plaintiff had no insurable interest in the property, to which was added an additional plea, setting forth that by the conditions of the insurance, a suit for any loss or damage was not sustainable, unless commenced within six months next after such loss or damage occurred.</p> <p>The material facts of the case were as follows: — On the 20th day of July, a. d. 1860, Benjamin Coursin effected an insurance to the amount of $1500, “ on his two-story frame building, used as a flouring-mill, propelled by steam, including machinery and fixtures therein, situate at Hayworth Station, McLean county, Illinois, privilege $4500 additional insurance, to commence at noon of the 20th of July 1860, to end at noon on the 20th of July 1861,” in the Pennsylvania Insurance Company.</p> <p>The property insured was totally destroyed by fire on the 7th October, A. D. 1860, and the defendant was called upon to pay the amount of the policy.</p> <p>The defendant, in connection with other companies which had taken risks upon the same property, upon receiving notice of the loss, sent an agent to make inquiries in regard to the matter. Upon investigation, the agent was of opinion that at the time of the insurance, and also at the time of the loss, the plaintiff had no legal title in the property insured, but that the title to the property was probably in Isaac N. Coursin, son of the defendant, and .Robert M. Wilson, who had been engaged in running the mill.</p> <p>He reported this discovery to the companies, the defendant among them, and they all declined to make payment of the amount called for in their policies.</p> <p>The plaintiff, either in person or by the various agents and attorneys employed by him in the matter, from time to time, called at the office of the company, to ascertain if some settlement or compromise of the claim could not be made, but was uniformly told that the company declined paying, on the ground of a want of such an insurable interest in .the property, in him, as had been set forth in his application for insurance.</p> <p>This suit was commenced on the 14th of January, A. D. 1862, more than fifteen months after the loss; a declaration was filed, to which the company replied by pleading as above stated.</p> <p>The conditions in the policy were as follows:—</p> <p>. “ 3. If the interest in the property to be insured be not absolute, it must be so stated in the policy, and the nature of such interest must be specifically described; otherwise this policy shall be void.' And if the property herein insured, or any part of it, shall be transferred by any contract, or any change of any partnership or ownership, then this policy shall be void, unless the- consent of the secretary thereto be endorsed on this policy.</p> <p>“4. Property held in trust, or on commission, must be insured as sucn, otherwise the policy will not'cover such property; and in case of loss, the names of the respective owners shall be set forth in the preliminary proofs of- such loss, together with their respective interests therein. Goods on storage must be separately and specifically insured, and if the insured party be the manufacturer of any goods destroyed or- damaged, such loss or damage'shall be appraised at the expense of manufacturing the same, including the cost of materials.</p> <p>“14. It is furthermore hereby expressly provided, that no suit or action of any kind against this company, for the recovery of any claim upon, under, or by virtue of this policy, shall be sustained in any court of law or equity, unless such suit or action shall be commenced within the term of six months next after the cause of action shall have accrued.”</p> <p>The pleas above mentioned raised the main points at issue in the cause upon the trial below.</p> <p>In answer to the first of these pleas, the plaintiff produced and offered in evidence a transcript of the records and files in the office of the clerk of the Circuit Court in and for the county of McLean, in the state of Illinois, pertaining to .a certain cause lately pending in said court, wherein'Benjamin Coursin was complainant and the Illinois Central Railroad Company and others were defendants. ■ ... '</p> <p>The transcript showed that the proceedings were commenced on the 30th day of June, a. d. 1862, and consisted of a bill to quiet title, and to compel the specific performance of a contract, resulting in a conveyance by order of the chancellor of the legal title of the plaintiff, he having shown that he was for a long time owner of the equitable title.</p> <p>The defendant’s counsel objected to the transcript as a whole, and also to the various parts thereof: First,. Because it is not evidence of the facts recited in the bill, answers, and decree. Second. Because it is not the best evidence- to' show that plaintiff acquired an interest in the property insured in 1858. Third. Because the record is res inter alios acta,'.showing an amicable proceeding between plaintiff and his son and son-in-law, to perfect a title in plaintiff, after the fire commenced. Fourth. That . the record is irrelevant. Fifth. That the ¡record is incompetent testimony to show any title in plaintiff prior to the decree of the court of September 22d 1862.</p> <p>The testimony was admitted, and, under the charge of the court, determined the first point of defence against the company.</p> <p>The plaintiff below sought to avoid thA force of the plea of the limitation of the time for bringing the action by testimony which, under the rulings of the court below, -the jury found to amount to a waiver of that clause of the- conditions of insurance</p> <p>At the close of the trial, the defendants requested the court to charge the jury,</p> <p>1. That the plaintiff cannot recover, unless he had an insurable interest in the property insured at the time the policy was issued, as well as at the time of the loss; nor unless upon this trial he has proven that he had such an interest.</p> <p>2. That the 3d condition of insurance in the policy is a part of the contract, and is binding on the plaintiff; and if the plaintiff’s interest in the property insured was not absolute when the insurance was effected, it should have been so stated in his application and in the policy, and the nature of such interest should have been specifically described, and if this was not done, the policy is void, and plaintiff cannot recover.</p> <p>3. That the plaintiff has not shown any title in himself to the property insured at the time the policy issued, nor at the time of the loss, and therefore cannot recover.</p> <p>4. That the exemplification of the record of the Circuit Court' of Illinois does not show an insurable interest in the plaintiff at the time of the loss; nor has there been any evidence of such interest offered.</p> <p>5. That if the record of the Circuit Court of Illinois is evidence at all, it is only evidence of the fact that a decree was made directing Wakefield and the Illinois Central Railroad Company to execute a deed to plaintiff. It is not evidence of the grounds upon which the decree was based.</p> <p>6. That the bill and answer, and the copies of papers thereto attached, which were filed in the Circuit Court of Illinois, and which are set forth in the exemplification of the record, are not evidence in this cause.</p> <p>T. That there is no evidence that the plaintiff ever had any interest of any kind in the property insured; nor is there any evidence that he had any interest in the lots upon which the insured building had stood, except the deed from the commissioner in chancery, executed September 22d 1862 — nearly two years after the loss.</p> <p>8. That the alleged trust deed to R. E. Williams (a copy of which is set forth in the record of the Circuit Court of Illinois), is not in evidence in this cause, and if it was it would not show an insurable interest in the plaintiff in the property insured.</p> <p>9. That the plaintiff has not proven an absolute interest in the property insured, and cannot, therefore, recover.</p> <p>10. That the affidavit of the plaintiff of November 2d 1860, shows that up to and after the fire he had no title or absolute interest in the property insured.</p> <p>11. That the second paragraph of the 13th condition in the policy sued on is a part of the contract between the parties, and is binding on the plaintiff, and plaintiff cannot recover unless this action was commenced within six months next after the cause of action accrued.</p> <p>12. That the fire was the cause of action, and inasmuch as suit was not brought within six months thereafter plaintiff cannot recover.</p> <p>13. That the suit was not brought within the time limited by the condition of the policy, and plaintiff cannot recover.</p> <p>14. That the stipulation in the conditions of insurance in the policy sued on, “ that no suit or action of any kind against this company, for the recovery of any claim upon, under, or by virtue of this policy, shall be sustainable' in any court of law or equity, unless such suit or action shall be commenced within the term of six months next after the cause of action shall have accrued,” is binding upon plaintiff, and proof of the waiver of it must be positive before plaintiff can recover in this action, brought more than six months after the cause of action had accrued.</p> <p>15. That negotiations from time to time between plaintiff and his counsel and the agent or officers of the insurance company, with a view to a compromise, without, any express agreement to suspend legal remedies to await the issue of those negotiations, do not, in the absence of fraud upon the part of the company, defeat the clause of limitation.</p> <p>The learned judge (Williams, J.), before whom the cause was tried, affirmed the 1st and 2d points, negatived the 3d, 4th, 5th, 6th, 7th, 8th, and 9th, and disposed, of the remaining points as follows:—</p> <p>“ 10. If the plaintiff had no other title to the property insured except that set out in his affidavit, the law would be as stated in this point; but the plaintiff has shown by the record of the Circuit Court of the state of Illinois, given in evidence, that he had a good equitable title to said property, and there is nothing in the affidavit that expressly contradicts the allegations of the said record. So far as respects the allegations actually made in the affidavit, they correspond with the facts, set out in the record — . the only difference being that the record sets forth facts not mentioned in the affidavit.</p> <p>“ The title shown by the record can only he impeached by proof of fraud or collusion, of which there is no evidence in this case.</p> <p>“ 11th, 12th, 13th, 14th, and 15th. .The- second paragraph of the 13th condition in the policy sued on, to wit: ‘ That no suit or action of any kind against this company for the recovery of any claim upon, under, or by virtue of this policy, shall be sustainable in any court of law or equity, unless such suit or action shall be commenced within the term of six months next after the cause of action shall have accrued,’ is a part of the contract between the parties, and is binding on the plaintiff; and as this action was not commenced within the time limited in the said condition, viz., within six months next after the cause of action accrued, the plaintiff is not entitled to recover unless the insurance company, by its authorized agents, waived the said condition, or did such acts and things as would amount to and constitute positive fraud, if the said company is now permitted to set up the said condition to defeat this action.</p> <p>“ This condition, although a part of the contract, was for the benefit of .the company, and the company might waive it. But before the jury would, be justified in finding that it was waived by the company, they should have satisfactory evidence of the fact. . The evidence must show, to the satisfaction of the jury, that the company-either expressly or impliedly waived the condition. The plaintiff alleges that the company, in the negotiations which took place, waived the condition. The defendant denies this, and as the evidence on this point is conflicting, it will be for the jury to determine whether this condition was in point of fact waived or not. If it was, the plaintiff may recover; otherwise your verdict will be for the defendant.</p> <p>“ This sufficiently answers defendant’s points, and embraces all the instructions necessary to be given to the jury on the questions of law arising in this case.</p> <p>“ There are in reality but two questions raised by the defendant’s points:</p> <p>“The first is a question of law for the court, viz.: Had the plaintiff an insurable interest in the property insured, and has he shown such a title thereto as will enable him to maintain this action ? This question we have already answered in the affirmative. ’ The remaining question is one of fact, for the determination of the jury, viz.: Has the defendant waived the condition in the policy which requires suit or action to be commenced within the term of six months next after the cause of action shall have accrued? If so, the plaintiff is entitled to recover; but if not, then the jury will find for the defendant.”</p> <p>Under these instructions there was a verdict and judgment in favour of the plaintiff. Whereupon the • defendant sued out this writ, and assigned for error the admission in evidence of the record of the Circuit Court of Illinois, and the refusal of the court below to affirm defendant’s 5th, 6th, and 8th points, and in answering the 10th, 11th, 12th, 13th, 14th, and 15th points, as above stated.</p>

<p>' Error to the Common Pleas of Jefferson county.</p> <p>This was an action of trespass quare clausum fregit de bonis asportatis, by James W. Guthrie against Frederick Kahle, Jr., and thirteen others, to recover damages for cutting and carrying away timber growing upon land claimed by the plaintiff, to which the defendants pleaded liberum tenementum.</p> <p>All the material facts of the case will be found in the opinion of. this court.</p>

This was an appeal, by Robert McEldowney, from the decree of the court below, on a bill in equity, filed against him by Charles Gotlieb Hammer and George H. Dauler, to compel the specific performance of an alleged contract for the sale of land.

<p>Appeal from the Orphans’ Court of Washington county.</p> <p>This was an appeal by William A. Mickey, executor of the last will and testament of Plesze Grim, deceased, from the decree of the Orphans’ Court, in the matter of the legacy bequeathed to the husband of testatrix.</p> <p>The will of Plesze Grim was proved some time in 1855, in which, among other bequests, there was the following:—</p> <p>“ Item. It is my will that my nephew, Simeon McCoy, shall have the house and lot on which I now reside, by paying to my beloved husband, John H. Grim, the sum of eighteen dollars per year, during my said husband’s lifetime; it is my will that if my said nephew shall die without heirs, then the said house shall fall back into my estate, to be equally divided among my brothers and sister, or their heirs.</p> <p>“Item. It is further my will that my husband shall have one hundred dollars at my decease, and that the balance of my estate be deposited in the hands of W. A. Mickey, Esq. (whom I hereby constitute and appoint to be the executor of this my last will), in trust to be disposed of as hereafter named. That is to say,</p> <p>I direct that the interest shall be paid annually (if demanded) to my beloved husband, John H. Grim, during his natural life, and at his decease the principal, after deducting the expense of execution, to be equally divided among the heirs of my brothers and sister, as soon as it can be collected < The legacy of one hundred dollars left to my husband, and interlined, I have done before signing or sealing this my last will.</p> <p>“ May 2d 1855. I, the above-named Plesze Grim, do make and constitute this codicil to be a part of my last will and testament.</p> <p>“Item. Whereas, I have ordered the interest of my money to be paid to my husband, John H. Grim. I therefore hereby order that should my said husband marry again, or should he fall'into drunkenness and revelry, then his said interest is to cease, and my estate to be disposed of as above directed.</p> <p>“Item. I further direct that should my nephew, Simeon McCoy, refuse to take the house and lot as above directed, then my said executor shall sell the said house and lot, and pay to my said nephew the sum of one hundred dollars of the purchase-money, and at the decease of my husband, John II. Grim, the further sum of one hundred dollars, and the balance of the purchase-money to be divided with the rest of my estate.”</p> <p>At the death of his wife John H. Grim was about seventy years of age.</p> <p>Some time in 1863, Eliza Gregg, Elizabeth A. Jeffries, Anderson Jeffries, Benjamin Jeffries, Eleanor Jeffries, and James Jeffries, children of Amor Jeffries, who was a brother of Plesze Grim, presented their petition to the Orphans’ Court, setting forth this provision in the will of deceased, that by the account of the executor there was'in the hands of the executor a balance of $599.86; that “since the death of his wife, the said John II. Grim had fallen into habits of drunkenness and revelry, and has continued said habits up to the date of the petition,” by reason whereof his interest in the said legacy had ceased, and that of the petitioners had been established; and praying for “a rule on the executor, with notice to John H. Grim to show cause why a decree should not be made in compliance with the prayer of the petition,” with such other relief, &c.</p> <p>To this petition W. A. Mickey filed an answer, in which the facts set forth in the petition were admitted, as also the intemperate habits of the legatee, but averring that “ his habits are not now, and have not been since the making of the will, worse than they were at that date.”</p> <p>The case was heard in the court below on written evidence, establishing conclusively the intemperate habits of the legatee. That taken by the petitioners before James Moffit, Esq., was objected to on the ground that he had refused to allow the respondent to cross-examine the witnesses, and that the testimony was not reduced to writing by the justice as given by the witnesses themselves; which objections were sustained by proof.</p> <p>The testimony taken at a subsequent time by the petitioners before William Carrol, Esq., was objected to on the ground that James Moffit, Esq., was named as the justice before whom the depositions would be taken, and he had decided, on the former occasion, that the respondent had no right to cross-examine the witnesses; and that therefore he did not attend, and did not cross-examine them.</p> <p>For these reasons the court below was moved to suppress the petitioner’s depositions.</p> <p>The court below (Gilmore, P. J.) filed the following opinion:—</p> <p>“ This matter comes before us on petition, answer, and evidence. On consideration of the latter we are all of the opinion that John H. Grim, before the death of his wife, was what it is evident she apprehended he would be after her death. We are also all agreed that after her death his habits of drunkenness and revelry continued to be the same (if not worse) than before her death. How, then, does this codicil operate upon the state of facts ? It is said that if the word ‘ again’ or ‘ continue’ had been used it would have been plain what she meant; but inasmuch as it must be presumed she knew his habits better than any one else, she must have comprehended a worse degree of intemperance than any which had previously existed. We are not of this opinion. This codicil was made but a short time previous to her death, and in view of her speedy dissolution. Her husband was what is called a ‘spreeing man,’ sometimes drunk and then again for a period entirely sober. In this latter state one of the witnesses swore he was about the time of her last illness. The wife was hopeful. At all events we will not suffer her intention to be invaded because she did not think proper in her last moments to drop a word which might have been considered one of reproach, which would make her codicil a kind of a lecture which she did not then feel in the spirit to give.</p> <p>“But there are other objections to the making this rule absolute. The condition in this codicil is a subsequent one, and is to be construed with strictness, as it is intended to divest an estate already vested. The rule is, that such a condition in respect to a legacy shall be construed to be a mere declaration in terrorem, unless where there is a limitation over. This, it is argued, is the case here. The fund, it is true, goes into the residuum, but that is not sufficient; there must be an express limitation over. The foundation of the rule itself is spoken of as unreasonable. The consequence is, it will be found to be much modified. Whether a mere residuary bequest amounts to a disposition of the legacy within the rule, has been in practice the subject of considerable doubt. The following distinction is said to be correct. ■ If the testator give no direction for the legacy to fall into the residue, a disposition of that fund cannot be a limitation over of the individual legacy, because it is not permitted to form a part of the residue. On the other hand, if the testator direct the legacy to fall into the residue so that it becomes disposable as part of that estate, such direction will be virtually a limitation over of the particular legacy: 1 Roper on Leg. 556. The same rule was also stated in Lloyd v. Bracton, 3 Meriv. 108, 118, cited and referred to in Roper on Leg., vol. 1, p. 557. How is the legacy limited here, in case it is forfeited under the conditions mentioned in the codicil ? The expression in the codicil is, £ and my estate to be disposed of as above directed,’ referring to the will. There the testatrix says, £ and at his decease the principal, after deducting the expenses of execution, to be equally divided among the heirs of my brothers and sister as soon as it can be conveniently collected together.’ We hold, therefore, that the expression in the codicil, in connection with the residue clause in the will, amounts to a limitation over of the legacy.</p> <p>“ Of course the principle which is here stated is not applicable to that part of the fund which is derived from the sale of the real estate, which, after paying the nephew the one hundred dollars, leaves sixty odd dollars, -which constitute a part of this fund, but inasmuch as we decided that the whole sum is forfeited under the condition in the will, it is unnecessary to make the distinction.</p> <p>“And now, to wit, November 30th 1863, this rule made absolute at the costs of W. A. Mickey, except the costs of the depositions taken before Squire Moffit, which are not to be taxed.”</p> <p>The case was thereupon removed into this court by the executor, who averred that the court erred in making “the rule absolute at the costs of William A. Mickey, except the costs of the depositions taken before Squire Moffit, which are not to be taxed.”</p>

<p>Land conveyed to married woman in lieu of legacy is held in trust for her.— Conveyance by trustee to husband of legatee, also in trust.— Effect of devise by husband of land so conveyed.</p> <p>1. A grantee of land conveyed to him in satisfaction of a legacy to a married woman, takes it in trust for her: and where he had, in receiving the land for the legacy, acted under a power of attorney, given by the consent of the husband for the collection of the legacy and the payment of the proceeds for her sole use and benefit, the husband cannot, after the conveyance of the land to the trustee, convert it to his own use, as though it were a mere chose in action.</p> <p>2. Therefore, where, in pursuance of a family agreement and partition, the joint owners of the tract, conveyed to the husband, the allotment or portion ' which had been received by the trustee of the wife in satisfaction of her legacy, the husband holds the title for her and not for himself: the title is in the wife, and after her death, in her legal representativos.</p> <p>3. Where the husband by his will devised the land so held, to four of his children, binding them to pay to his wife an annuity bequeathed to her, and made it a charge upon the land, in ejectment by two of the sons and heirs at law of their mother, to whom none of the land had been devised by the will, there was no evidence that the widow had ever received the 'annuity bequeathed to her, or that she intended any act of hers to be an election between her inconsistent rights, so that she or those claiming under her would be estopped from setting up her title to the land, it was held, that the plaintiffs were entitledjo recover.</p>

<p>Appeal from the Orphans’ Court of Allegheny county.</p> <p>This was an appeal by John McElhenny, late guardian of Mary Jane Swords, deceased, from the decree of the Orphans’ Court on the auditor’s report on his account.</p> <p>All the material facts of this case, and the matters assigned for error here, are sufficiently stated in the opinion of this court.</p>

<p>Appeal from the Common Pleas of Greene county.</p> <p>This was an appeal, by Silas Barnes et al., from the decree of court on the distribution of the proceeds of the sheriff’s sale of the real estate of George Wright.</p> <p>The real estate of Wright having been sold by the sheriff on a levari facias, at the suit of S. B. & C. Hays, the money arising from the sale was ruled into court, and George L. Wyly, Esq., appointed to distribute it among the persons to whom it was legally due.</p> <p>The report presented the following facts :—</p> <p>“ On the 2d of December 1859, George Wright, then sheriff of Greene county, purchased of Joseph McConnell, by articles of agreement, a lot of ground situate on High street, in the borough of Waynesburg, for the sum of $400, to be paid in four years from that date, with interest. Some time after the purchase of this lot, Wright commenced the erection thereon of a large three-story brick house, intended for a tavern stand. Having made considerable progress in the erection of the house, on the 13th May 1861 he sold to Joseph House, by articles of agreement, an undivided half part of said house and lot, together with an undivided half part of another lot, situate near the former, on which a large frame stable was in process of erection. The terms of this agreement were : that Wright was to finish the house according to the plan which he had adopted; to furnish materials to complete the stable; to board the hands employed in the erection of the stable, and to make to House a good general warranty deed for the property, on or before the 1st of July 1862. On his part, House was to superintend the erection of the stable, and “ to do all the work in the erection thereof,” and to pay to Wright the sum of $3000, $1100 in hand, and the residue in two equal annual payments, with interest. House paid the hand-money at the date of' the articles, and $300 more on the 11th of July 1861, making in all $1400 paid by him on the contract. Before the next payment fell due, Wright became insolvent, and liens, to an amount greatly exceeding the value of the property, were filed and entered against him.- Many of these were mechanics’ claims, which attached from the beginning of the work, and were liens on the whole estate, as well upon the moiety which was sold to House as the moiety which remained in Wright. The mechanics’ liens were the only liens against the property at the time of the sale to House, and of these only one (that of George Hamilton) wa& filed at that time.</p> <p>“ On the 13th day of June 1862, a levari facias was issued on a judgment obtained on one of these mechanics’ liens by S. B. & O. Hays, on which the brick house and lot were sold by the sheriff to Joseph L. McConnell, for the sum of $3400. The lot on which the stable was to be erected remained unsold. The money for which the brick house property was sold, was the fund for distribution. It was conceded by all parties that Mr. McConnell took a perfect title to the whole property under his purchase from the sheriff; it was also conceded that the mechanics’ liens, being liens on the whole estate, must be paid out of the fund. The controversy was between House and those creditors of Wright whose liens attached after the sale to House. The counsel of House claimed for him out of the fund the amount of money paid by him on his contract, viz., $1400, with interest thereon from the date of payment; Wright’s creditors denied that House was entitled to any part of the fund, and claimed that they were entitled to the whole of it.</p> <p>There was nothing in the evidence showing that House was not at all times ready and willing to perform his contract. He paid the hand-money at the date of the articles, and he paid nearly one-third of the next instalment before it fell due. Whether Wright had ceased work on the building at the time the second instalment fell due did not appear, but he had become insolvent, and was unable to make to House “ a good general warranty deed” for the property, as he had bound himself to do by his-contract, and before that time, the writ on which the property was sold, was in the sheriff’s hands. If House had applied the amount due on the second instalment to the liens, it would not have prevented a sale of the property, for the reason that the liens greatly exceeded that amount, although it was sufficient to pay the lien on which the property was sold.”</p> <p>It was estimated by the auditor that it would require about $1200 to finish the house.</p> <p>As the contract for the sale to House was entire, the auditor apportioned the unpaid purchase-money between the lot on which the house was built and that on which the stable was to be erected, estimating the latter at one-eighth the value of the former. He then decided that the position of House was that of owner of an undivided moiety of the property, subject to the payment of so much of the unpaid purchase-money as in equity ought to be paid, which he ascertained by allowing a credit on the unpaid purchase-money of half of vrhat it would take to finish the house, and pay the balance of the purchase-money on the contract with McConnell.</p> <p>He therefore awarded to House $1061.12, which he ascertained as follows:—</p> <p> </p> <p>He then awarded a balance to other judgment-creditors of Wright, in the order of time, leaving the sum of $1071.56, which he divided fro rata between the judgments of Barnes and othér creditors of Wright, whose liens attached on the same day.</p> <p>To this report the following exceptions were filed:—</p> <p>1. The auditor erred in appropriating to Joseph House $1061.12.</p> <p>2. The auditor erred in not appropriating the residue of the proceeds of the sale of the real estate, mentioned in said report, to judgment No. 46, September Term 1861, Silas Barnes et al. v. George Wright; and No. 47, September Term 1861, J. L. McConnell v. George Wright, after the payment of the judgments upon the mechanics’ liens.</p> <p>The court below on argument confirmed the report for the reasons given by the auditor; which was the error assigned on this appeal.</p>

<p>Ceetioeabi to the Quarter Sessions of Westmoreland county.</p> <p>On the 19th of August, a. d. 1862, William J. Hitchman, and. seventeen others, were indicted for a riot and an assault and battery on John W. Carpenter, and on trial were found guilty of the assault and battery charged against them. Sentence was suspended, and on the 12th of November an unconditional pardon was granted by the governor. On the 17th of November the pardon was formally pleaded, to which a replication was filed for the Commonwealth.</p> <p>The court below allowed the pardon for all purposes except the costs; which was the error assigned here by the defendant.</p>

<p>Constitutionality of the act authorizing the paving of Pittsburgh. — Provisions of act discussed and construed. — Statute of Limitations not applicable to assessments under it.</p> <p>1. The act of 16th May 1857, authorizing the city councils of Pittsburgh to grade and pave any street, lane or alley, and to collect the costs and expenses from the owners of lots abutting thereon, by an equal assessment upon the front foot of each owner, and providing for the appointment of appraisers to value and appraise the paving, or preparation for paving, of streets, lanes and alleys, the cost of which had been paid or assumed by the city, is constitutional ; and the mode of ascertaining the amount to be paid by each lot-owner is neither unreasonable nor unequal.</p> <p>2. The provision that the assessments made by the appraisers should be filed in the office of the prothonotary by the city solicitor, within twenty days after it was made, is only directory; and it is immaterial whether the assessment was complete or not, where the appraisers filed a properly authenticated statement of the valuation of such paving, or preparation fox-, paving, in the office of the city regulator as required by the act.</p> <p>3. Whether the grading assessed includes all the preparation for paving or not, a lot-owner against whom an assessment was made cannot complain, if grading only is valued, as it will have reduced the amount to be paid on the lots assessed.</p> <p>4. The statute of limitations has no application to assessments under the act: nor can the claim of the city be barred, whether or not the paving for which the claim was made was or was not paid or assumed by the city more than six years before the assessment was made.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an amicable action between the Mayor, Aldermen, and Citizens of Pittsburgh, for the use of Mrs. Mary Roe, against William Wray, for the recovery of the amount of an assessment against the defendant, made by the appraisers chosen for that purpose under an ordinance of the city, to meet the claim of Mrs. Roe for damages done to her property in grading Washington street, in which the following case was stated for the opinion of the court:—</p> <p>Several years ago John A. Roe, the husband of the said Mary Roe, leased from Harmar Denny certain real estate, situate on said Washington street, in the third ward of the city, on which he erected nine brick and two frame buildings, and afterwards purchased from said Denny the fee-simple title thereto. That after said purchase, and after said buildings were erected, the grade of said Washington street was fixed and determined by the councils of said city, to wit: in the year 1861, and when the same came to be actually graded, in the fall of 1861, the same was graded about three feet lower, through the property of said Mary Roe, than was fixed by the grade adopted by councils in 1851. This change of grade was rendered necessary by a change in the grade of Liberty street, and was done by the recording regulator, under an ordinance passed August 16th 1858, directing the grade of Washington street to be thus changed. - That after the grade of said Washington street was fixed, in 1851, the said John A. Roe died, to wTit, in the year , and in his last will devised the said real estate to his wife, the said Mary Roe,' during her life. That in the fall of 1861, the said Washington street was graded by the city authorities, under an ordinance authorizing and directing the same to be done, pa'ssed July 13th 1861. That at the time said grading was done the said houses yielded an annual income to the said Mary Roe of about Ji&Oih- That in the grading of said street, owing to a deep cut in one part, and a high embankment in another, six. of said^brjck and one of the said frame buildings (which ,said,ho_uses.1stopd on the"si‘deTof said street), were rendered so dangerous and useless that they had to be taken down, and two others of theremainihg buildings were seriously injured by the embankment pressing against their walls. That the annual income derived by the'Said Mary Roe from the buildings thus lost was over $400, and her annual income from the whole property was lessened to that amount, besides the expense she incurred in removing said buildings, and repairing and fixing the others that were injured.</p> <p>That in January 1862, John H. Ralston, M. Tindle, and John Wilson, three disinterested persons, not citizens or property owners, in the third ward, were duly chosen appraisers, in pursuance of section 25, of chapter 17, of the Ordinance passed October 6th 1859, to appraise the damages of the said Mary Roe, and make the assessments therefor. That they appraised her damages at the sum of $3330, and assessed that sum upon properties situated on Washington, Webster, Wylie, Logan, and several other streets. They assessed $1030 of the amount upon the property, in which Mrs. Roe had a life estate, to be paid by those having the remainder interest therein; and the balance, $2300, was assessed upon one hundred and sixty different properties, the amounts thereof ranging from $2.25, the lowest, up to $187.50, the highest, there being, however, only eleven above $27 — namely, one of $33, one of $45, two of $37.50, one of $46.77, one of $50, one of $75, one. of $90, one of $130, one of $150, and one of $187.50. The amount assessed upon the defendant’s lot, situate on Webster street, ninety-six by ninety-four feet, on which are three brick dwellings, was twenty-three dollars and twenty-five cents ($23.25.)</p> <p>The claim in this suit is based upon the Act of Assembly of May. 16th 1857, and the ordinance of, said city of October 6th 1859, copies of which are hereto attached, and made part of this case stated.</p> <p>In estimating and appraising the damages of Mrs. Roe, the appraisers viewed the premises, and spent several days in hearing testimony on the subject, both for and against her claim; the city being represented by the city solicitor, aided by some persons owning property in the vicinity who were likely to be assessed and interested in defeating her claim. In making the assessments upon the properties benefited the appraisers also viewed the different premises. But in all these proceedings they gave no written or printed notices, and • gave no notice whatever to the defendant, or others who were assessed, except such as incidentally took place in conversations with persons while they were viewing, the premises, and performing their duties; and there is no evidence that the defendant knew of these proceedings at the time. After the appraisers had finished making the assessments they left the list thereof, containing the names of the owners, the.description of the lots, and the amount of'the assessment in each ease with the city solicitor. This list was left with the solicitor some time during the summer of 1862, In January 1863., the appraisers published .the.iollomog notice, for sj£_days, in the Pittsburgh Daily Gazette and Pittsburgh Daily Dispatch, vi z. : — ‘‘ Grading of Washington street. — Tlie’ undersigned, appointed to assess upon the properties benefited by the grading of Washington street, the damages done to the property of Mrs. Mary Roe by the said improvement have made said assessments, which may be seen at the office of J. W. F. White, No. 106 Fifth street. And notice is hereby given, that the undersigned will meet at said office on Tuesday, the 27th February, at 9 o’_clojcIn,A. M., to hear and determine any complaints that may be made by any one aggrieved by said assessments.</p> <p>“(Signed) “John H. Ralston.</p> <p>1 ■ “ M. Tindle.</p> <p>“John Wilson.</p> <p>“January 19th 1863.”</p> <p>At the time and place appointed in said advertisement the appraisers met, and, after hearing the complaints and allegations made by those who chose to attend, confirmed the assessments, without any change, as previously reported to the city solicitor.</p> <p>It was admitted that the above advertisement was the only public,or formal notice given ,by the appraisers during their proceedings.</p> <p>Copies of the appointment of the appraisers, their proceedings and their report were made part of the case stated, or the original report was to be used in the argument of the case.</p> <p>The defendant alleged the following grounds of defence to the plaintiff’s claim:—</p> <p>1. The suit is improperly brought in the name of the Mayor, Aldermen, and Citizens of Pittsburgh, for the use of Mary Roe. It ought to be in the name of Mary Roe alone. yj 2. The Act of Assembly of 16th May 1857, above referred to, does not authorize any assessment upon defendant’s lot for the said damages, nor is said act constitutional.</p> <p>3. Mrs. Roc is entitled to no damages in this case, because her damages, if any, are consequential.</p> <p>4. That the grade of Washington street was fixed by ordinance before her life estate accrued, and therefore she is entitled to no damages.</p> <p>5. That the damages allowed her are excessive.</p> <p>”6. That the property of defendant'is not benefited by the grading of said street, and is not liable to any assessment for damages resulting therefrom.</p> <p>If the court should be of opinion that the first point above of defendant is well taken, then plaintiff shall have leave to amend by striking out the words “ The Mayor, Aldermen, and Citizens of Pittsburgh, for use of,” and the case go on as if originally brought in the name of Mary Roe, as plaintiff.-</p> <p>If the court should be of opinion that either the 2d, 3d, or 4th point is a sufficient defence to the claim in this case, then judgment shall be entered for defendant, with costs of suit.</p> <p>If the court should be of opinion that the 2d," 3d, and 4th points are not a sufficient defence, and that the report and assessment made by the appraisers are conclusive against defendant on his 5th and 6th points, then judgment shall be entered for plaintiff for the sum of $23.25, with interest from January 27th, 1863.</p> <p>But if the court should be of opinion that the defendant is entitled to a jury trial on either his 5th or 6th point,'then the case shall be ordered on the trial list, and be tried in such form and upon such issues as the court may direct.</p> <p>Either party reserves the right of suing out a writ of error to the Supreme Court upon any judgment the court may enter upon this case stated.</p> <p>July 5th 1863, the court entered judgment for the plaintiff on the case stated for $23.25, with interest, from the 27th of January 1863, which was the error assigned.</p>

<p>Intestate law — Descent to next of kin in the line of first purchaser.</p> <p>Where one died seised of real estate which descended from her father, leaving as her nearest kindred her mother, a paternal aunt, and maternal aunts and uncles, the paternal aunt alone is entitled, as next of kin of the blood of the ancestor from whom the estate descended.</p>

Error, to the District Court of Allegheny county. This was a scire facias on a mechanic’s lien, to recover a balance alleged to be due to the plaintiff for furnishing materials, and erecting eighteen dwelling-houses in the city of Pittsburgh. It was first tried in January 1852, and a verdict rendered for the defendant.

<p>Error-to the Common Pleas of Jefferson county.</p> <p>This was an action of ejectment, brought July 4th 1860, by Frederick Maul and Mary Elizabeth Maul, his wife, who was a daughter and heir at law of Martin Jacobs, deceased, against John Rider and Philip Deitrick, to recover the undivided moiety of a tract of land in Winslow township, containing three hundred acres.</p> <p>The material facts of the case were these:—</p> <p>On the 22d day of March 1837, Martin Jacobs and John Rider bought of C. C. Gaskill, attorney in fact of George Latimore, deceased, by articles of agreement, some three hundred acres of land for $600, for which they paid $60 each in hand, and $60 each on the 21st day of March 1838. On the 21st day of March 1839, Rider paid $60 more, and on the 3d day of August 1839, Jacobs paid $60, making $180 each, or $360 in all, up till that date. There was some evidence that Jacobs paid the first $60 for Rider. The matter lay over till June 8th 1849, when Rider gave up the old article to Gaskill, or his agent D. Barclay, and took a new contract in his own name for the consideration of $317, leaving Jacobs out altogether, paying $60 in hand, and agreeing to pay the balance in three equal annual payments, with interest, one year after date. On the 19th day of January 1853, it was alleged Rider sold one hundred acres off the east end. of the land to Philip Deitrick, and on that day a deed was made to Deitrick, for which he paid $370, viz., $20 for a field of wheat, and a house built on the land variously estimated at from $45 to $85, and the balance for the land. At the same date Rider received a deed from Oaskill for the balance of the three hundred acres. Soon after the first contract Jacobs and Rider commenced cutting and clearing on the land, Jacobs on the east and Rider on the west, and in March 1838 they had a division line run between them, but before consummating any improvement they both left. Shortly after Rider came back, and about the fall of 1839 put out a small field of grain, and the next spring (1840) moved with his family upon the west end of the land, and has continued there ever since, making valuable improvements. Some time about 1844 Jacobs came back, and had some dispute with Rider, Rider claiming the whole three hundred acres, and exhibiting his deeds, saying, if Jacobs wanted he must buy of him. Rider had also a treasurer’s deed, dated in 1840, for the land, in. addition to the deed he had of (jaskill. Jacobs then left, and in 1849 died, leaving one daughter surviving him, Mary Elizabeth, who was born on the 6th day of December 1834, '• and who was married to Frederick Maul on the 5th day of October 1856. •</p> <p>The defendant’s counsel requested the court to charge the jury,</p> <p>1. That if the jury believe that James Winslow, at the request of plaintiff’s ancestor and defendant, run a line which was marked on the ground by said parties as a division line, and took possession of their respective parts in pursuance of such division, the plaintiff cannot recover any portion of said land so run off to suit defendant.</p> <p>2. That under the facts of this case the 6th section of the Act of the 22d of April, A. d. 1856, interposes a bar to the plaintiff’s recovery.</p> <p>3. That if the jury believe that the defendant had the exclusive possession of the one hundred and fifty acres for a period of twenty-one years before the bringing of this suit, and during said period was in the exclusive reception of the profits thereof, they may presume an ouster or disseisin of his co-tenant, and the plaintiff is not entitled to recover.</p> <p>The court below (Campbell, P. J.) answered all these points’ in the negative, and instructed the jury that “ the fact that Rider got the deed to himself would not enable him to hold it against his co-tenant for the undivided one-half part or moiety thereof; that he would be a trustee, and being a tenant in common by the original purchase, the assignment of the treasurer’s deed in May 1842 to him, it being before the time of redemption was past, would enure to the benefit of both tenants in common, and was merely a redemption of the land.</p> <p>“ That the evidence of a parol partition or division was not sufficient to take it out of the Statute of Frauds and Perjuries, and that the jury should disregard it altogether, and treat Rider and Jacobs as tenants in common.</p> <p>“ That the mere absence of one tenant in common will amount to nothing. He in possession must do some hostile act which will be equivalent to notice. The possession must be adverse, notorious, and exclusive.”</p> <p>Which instruction was assigned here for error.</p>

This was an action of ejectment, by Reuben Winslow against John Gibson, Robert Rothrock, Charles Miller, and Thomas Tozier, for the undivided moiety of warrant No. 5285, in Jay township, issued to John Mead, and known as the Caledonia property. On the 9th of June 1835, the whole of this property was owned by James L. Gillis and Zebulon Warner.

<p>Error to the Common Pleas of Allegheny county.</p> <p>This was an action of ejectment, by Mary O’Hara against Hugh Richardson, William Richardson, Mrs. Sims, and James Cullen, to recover possession of a tract of land in Robinson township, containing about one hundred and fifty acres.</p> <p>The plaintiff claimed under a warrant to Robert Campbell, of the date of 17th October 1785, for four hundred acres of land, including an improvement, in the county of Washington, on the waters of Chartiers creek, about seven miles from Fort Pitt, adjoining lands of James Ewing on the south-west, John Campbell on the north-east, Thomas Thornsby on the north-west, with a survey thereon of the date of October 20th 1817, returned and accepted on the 17th January 1818, of three hundred and sixty-two acres and allowance, and calling for lands of James Ewing, Thomas Thornsby, James Ross, Bausman’s heirs, or T. Richardson and Cuhbage, as adjoiners, and a note or memorandum endorsed thereon of a caveat hy Thomas Richardson, claiming a part of the land embraced therein, under a warrant to William Bamer, dated January 18th 1793.</p> <p>The defendants claimed under a warrant to William Bamer, of the 18th January 1793, for two hundred acres of land, adjoining lands of James Bell, widow McManamy and Chartiers creek, with a survey of one hundred and eighty-four acres sixty-six perches and allowance, made by James A. Gibson, deputy surveyor, on the 4th of December 1839, and purporting to have been made upon an order of November 11th 1839, to correct a survey made for John Binney, on the 4th day of December 1803, on the said warrant, alleged to have been returned by Stephen Wood, deputy surveyor, on the 15th of March 1839, for Jane Richardson, and referring to the line represented to him as the one spoken of in a decision of the board of property, dated the 16th day of September 1819. Upon this survey a patent was issued to Jane Richardson on the 17th day of December 1839.</p> <p>All the facts that are necessary for a full understanding of the case, as it was presented in error, will be found in the opinion of this court.</p> <p>The plaintiff presented seventeen points, and the defendants six, on which the instruction of the court below was requested.</p> <p>Under the ruling of the court (Mellon, J.), there was a verdict and judgment in favour of the defendants. Whereupon the plaintiff sued out this writ, and presented for the consideration of this court eighteen distinct assignments of error to the admission of evidence, and the charge of the court below. The only assignments that were considered material, will be found in the opinion of this court.</p>

<p>Appeal from'the Orphans’ Court of Philadelphia.</p> <p>This was an appeal by Thomas Barnett, acting trustee under the last will and testament of James Bell, deceased, who appealed for himself and for Mrs. Eliza B. Field and James Bell, beneficiaries in the trust, from the decree of the Orphans’ Court of Philadelphia confirming the report of the auditor appointed to audit, settle, and adjust the second account of Thomas Barnett and John B. Austin, trustees under the will of James Bell, deceased, and report distribution in their hands.</p> <p>The appellee was Mrs. Ann Bell, mother and guardian of James Bell, a minor child of John H. Bell, deceased, who was a son of James Bell, deceased, the testator.</p> <p>The case was this: — James Bell died September 23d 1853, aged about seventy years, leaving a will dated the 17th of that month. His personal estate was sufficient for the payment of all his debts and funeral expenses, except the sum of $148.09, which was carried to the account of his real estate.</p> <p>The remainder of his property consisted of houses and lots in Philadelphia, and an annual ground-rent of $48, the whole of which yielded a yearly income of about $1500.</p> <p>In this will, after several bequests and devises, which are unimportant here, he devised as follows:—</p> <p>“ Eifth. I give, devise, and bequeath to my executors, hereinafter named, all the rest, residue, and remainder of my estate, real and personal, whatsoever and wherever, to hold to them, my said executors, and the survivor of them — In trust for the following uses and purposes, and for no other use, intent, or purpose whatsoever, that is to say — In trust to let, lease, and demise the real estate, and keep invested the personal estate in bond and mortgage, or some other safe and substantial securities, and to collect and receive the rents, interest, and income and profits thereof, and out of the said income shall pay all the expenses necessarily incurred in keeping the said real estate in good order and repair, and all taxes and lawful charges that may be assessed or levied, as well upon the said real estate as the said personal estate, and also shall pay all expenses attendant upon the collection of the said rents and income, and shall pay over and distribute the net income of the said estate, real and personal, as follows — one third part thereof to my son, James Bell, for and during all the term of his natural life; one third part thereof to my son, John Bell, for and during all the term of his natural life; and the remaining third part thereof to my daughter, Eliza Eield, for and during all the term of her natural life, for her own separate use, so that the same shall not be taken for the payment of the debts of her present or any future husband; and in case of the decease of one or two of my said children, without leaving lawful issue, then one moiety of the said net income shall be paid to each of the survivors, or the whole thereof to the survivor, as the case may be, for and during the natural life of the said survivors or survivor; and in case of the decease of all my children, without lawful issue them surviving, then the said estate, real and personal, shall descend to and be vested in such persons as by the laws of Pennsylvania is directed concerning the estates of intestates; and in case of the decease of one or two of my said children leaving lawful issue, then the portion of the said interest and income that was paid to the parent of such issue prior to his or her decease, shall be paid to such issue in equal proportions, if there be more than one, for and during the natural lives or life of the survivors and survivor of my said children; and upon the decease of the survivor of my said children, then my said executors, and the survivor of them, shall divide, grant, pay, assign, and distribute all my said estate, real and personal, to and among the issue of my said children, in equal shares, such issue and their descendants, if any, taking and receiving only such part or share thereof, as his, her, or their deceased parent would have been entitled to, if then living.-</p> <p>“ Sixth. Should any of my real estate become dilapidated or unproductive, or should any circumstances arise that would make it to the interest of my estate that the same should be sold, or should my executors deem a sale or sales necessary in the distribution of my estate, then I authorize and empower my executors to sell either at public or private sale, or to let on ground-rent, all such parts and portions of my said real estate as ought, in the judgment of my said executors, or the survivor of them, to be sold; and upon any such sale or sales, to grant and convey the same in fee to the purchaser or purchasers thereof, so that the said purchasers thereof shall not be required to see to the application of the purchase-money, or be in any way liable or responsible for the misapplication thereof; and all ground-rents reserved by my said executors, payable out of and for any portion of my real estate which shall be sold as aforesaid, shall be held by my executors, and the survivor of them, for the same uses and purposes as herein set forth concerning my residuary estate; and all purchase-money received by my executors for the sale of my said real estate, or in the redemption or paying off the principal of any ground-rent by them reserved or held, shall be invested in other real estate or ground-rents, or bond, mortgage, or in some other safe and substantial security, and shall likewise be held by them as part of my residuary estate for the uses and purposes above set forth and specified.</p> <p>“ Seventh. I constitute and appoint my esteemed friends, Thomas Barnett and John B. Austin, executors of this my last will and testament, hereby revoking and annulling,” &c., &c.</p> <p>In 1855 one of the houses belonging to the estate was destroyed by fire, and was rebuilt by the acting trustee at a cost of $2621.15, which sum was subsequently repaid by the proceeds of the sale of other property of the deceased. In November 1854 the executors had filed an account of the personal property, showing a balance due to them of $403.81. This account was duly audited, and found correct. On the 22d of May 1857, they filed their final account as executors, showing a balance due them of $148.09, which was adjusted as above stated. At the same time they filed their first trustees’ account of the rents and income of the real estate, which on being audited showed a balance due them of $3681.69, and was thus confirmed absolutely.</p> <p>The second account, embracing the rents and incomes from April 1st 1857 to April 1st 1859, was filed in June 1859, in obedience to a citation which issued upon the petition of James Bell, one of the beneficiaries.</p> <p>It was referred to John M. Collins, Esq., by whom the first account had been audited, whose report, disposing of all the questions submitted to him, was filed in May 1860.</p> <p>To this report the accountant filed fifteen, and Mrs. Eliza B. Field ten exceptions, which, after argument, were dismissed by the Orphans’ Court, and the report confirmed.</p> <p>There were seven errors assigned, six of which were as to compensation, commissions, and interest. The principal objection to the action of the court below was in confirming that portion of the auditor’s report, wherein he decided that the trust created and established by the will of the testator to keep the real estate in proper order and repair, &c., and to pay over the net income to the beneficiaries in equal portions, was no trust at all, and that by the terms of the devise the beneficiaries “ each took absolutely vested estates tail in the one third part of the residuary real estate.”</p>

.Appeal from the District Court of Philadelphia. This was an appeal, by James D. Shaw, from the decree of the court below dismissing the exceptions filed by him, disputing the right of David M. Jaquett, assignee of Annesley Govett, as plaintiff, in a writ of venditioni exponas against the appellant, to the proceeds of the sheriff’s sale of his real estate.

<p> Chech on banker, when an assignment of the fund as against attaching creditors. </p> <p>1. A check drawn upon a banker is not of itself an appropriation of the funds in his hands belonging to the drawer, unless it plainly appears that the fund claimed was the one designated out of which payment was to be made; especially where the appropriation alleged was not completed by the payee’s presentation of the check until the fund was attached for a debt of the drawer.</p> <p>2. An arrangement between the drawer, payee, and banker, that, if an attachment was levied on the drawer’s funds, the check should be at once passed to the credit of the payee and charged to the drawer, did not amount to an assignment or raise any trust in favour of the payee: nor was it a present, appropriation of the money.</p>

<p>Assignment of creditors, when to be recorded under the act of March 24th 1818.</p> <p>1. Where the assignee named in a deed of assignment for the benefit of creditors declines to accept the trust, and in his' stead another is appointed, the thirty days allowed by the Act 24th March 1818, within which to record the deed, runs from its date and not from the time of the appointment of the. new assignee.</p> <p>2. Hence, where the new assignee did not record the deed of assignment until after thirty days from its execution by the assignors, it was, as to creditors, null and void: and the fund in the hands of the assignee was liable to attachment by them.</p>

<p>Error to tbe District Court of Philadelphia. 'Ui‘ -•</p> <p>This was an action of assumpsit, Aldridge & Co. to the use of Evan Prowattain against Isaac S. Eshleman. The plaintiff declared that, whereas one John J. Eshleman, before the time of the making of the promise and undertaking of the said defendánt, hereinafter next mentioned, desired to purchase of the said Aldridge-& Company certain'goods, wares, and merchandise, upon1 credit; and thereupon, in consideration of the premises, and that said Aldridge & Co., at the special instance and request of said defendant, would then and there sell and deliver to said John’J. Eshleman, upon credit, goods, wares, and merchandise, to the amount of $600, he, the said defendant, on the second day of April, in the year of our Lord 1861, at the county aforesaid, undertook, and then and there faithfully agreed with the said Aldridge & Co., in writing, to he responsible for said goods, wares, and merchandise, to the amount of $600, bought as aforesaid by said John J. Eshleman, of said Aldridge & Co., when he the said defendant should be thereunto afterwards requested: And the plaintiff avers that the said Aldridge & Co., confiding in the said promise and undertaking of him, the said defendant, did afterwards, to wit, on the day and year last aforesaid, at the county aforesaid, sell and deliver to the said John J. Eshleman goods, wares, and merchandise to the amount of $600 on credit. And although the said credit, and the time of payment for said goods, wares, and merchandise, elapsed before the bringing of this suit, yet the said John J. Eshleman hath not paid for said goods, wares, and merchandise, or any part thereof, of all which the said defendant had notice, &c., &c.; which was followed by the common counts for goods sold and delivered, work and labour done, a count for interest, for forbearance, on an account stated, and the usual money counts.</p> <p>After the jury were called, the plaintiff, by leave of the court, filed the following additional count:—</p> <p>And", also for that whereas, heretofore,' to wit, on the first day of February, A. D. 1861, and before the time of the making of the promise and undertaking of said defendant hereinafter mentioned, the said defendant introduced and recommended to said Aldridge & Co., as a customer, one John J. Eshleman.</p> <p>And whereas, the said Aldridge & Co. did, in consequence of said introduction and recommendation, sell and deliver to the said John J. Eshleman goods and merchandise to the value of a large sum, to wit, to the value of $500.</p> <p>And whereas, the said John J. Eshleman having failed to pay for said goods and merchandise, so sold and delivered as aforesaid to him, and desiring to purchase other goods and merchandise of said Aldridge & Co., the said Aldridge & Co. declined to sell or deliver to said John J. Eshleman said other goods and merchandise, unless said defendant would guaranty the payment of the goods and merchandise already sold and delivered as aforesaid, as well as those thereafter to be sold and delivered as desired by said John J. Eshleman.</p> <p>Whereupon, in consideration of the premises, and of the sum of one dollar to Mm the defendant, in hand paid by the said Aldridge & Co., he, the said defendant, on the second day of April, A. X». 1861, at the county aforesaid, undertook, and then and there faithfully agreed to and with said Aldridge & Co., in writing, and signed and delivered to said Aldridge & Co. the said writing, in the words and figures following, to wit:—</p> <p>“ I hereby agree to be responsible for merchandise bought by my brother, John J. Eshleman, of Aldridge & Co., to the amount of six hundred dollars, in consideration of one dollar paid to me, the receipt herewith acknowledged.</p> <p>“I. S. Eshleman,</p> <p>“ Philadelphia, April 2d 1862.</p> <p>“ Witness, James M. Stevens. “ 317 Spruce street.”</p> <p>And the plaintiff avers that said Aldridge & Co., confiding in said promise and undertaking of Mm, said defendant, did after-wards, to wit, on the day and year, and at the county aforesaid, sell and deliver to said John J. Eshleman other goods and merchandise to the value of a large sum, to wit, to the value of $500, of all which said defendant had notice.</p> <p>And the said plaintiff avers that said John J. Eshleman made default in the payment of said goods and merchandise so sold and delivered to him as aforesaid by said Aldridge & Co. prior to the commencement of this suit; and that said defendant hath not paid for the same, nor any part thereof, and hath become insolvent, and did so become insolvent prior to the commencement of this suit; of all which said defendant had notice.</p> <p>And although said defendant was thereto, afterwards and before the commencement of this suit, often requested to pay for the said goods and merchandise so sold and delivered as aforesaid to said John Eshleman, yet the said defendant hath not j>aid for the same, or any part thereof, to the damage, &c.</p> <p>To all which the defendant pleaded “ non assumpsit, payment,” and “ payment with leave.”</p> <p>On the trial the plaintiff offered the paper set forth in the additional count, in connection with the following deposition of James M. Stevens, a going witness, taken under a rule entered for that purpose:—</p> <p>“ I reside in Chicago; that is my home. I expect to leave Philadelphia on Monday, not to return to stay perhaps over a few hours. [Paper signed J. S. Eshelman, April 2d 1862, handed to witness.] I know that paper. It was given to secure the debt made by John J. EsMeman, or Eshleman and Fletcher, either or both. It was given for bills which were settled by this note.</p> <p>“ $585.73. “Philadelphia, May 6th, 1861.</p> <p>“ Four months after date I promise to pay to the order of Aldridge & Co. five hundred and eighty-five dollars and seventy-three cents, without defalcation. Value received.</p> <p>“ J. J. Eshleman.</p> <p>“ Endorsed: Aldridge & Co.</p> <p>Evan Prow attain.</p> <p>“ The bills were1 sold in six months’ time, and this note was given two months after the average date of the bills, making the note fall due six months after the average date of the bills. The goods were bought, some for John J. Eshleman, others for Eshleman and Fletcher, either and both. I was present when that guaranty was given. The body of that paper is in my handwriting. These gentlemen, Eshleman, or Eshleman and Fletcher, were men of straw. We were not willing1 to credit them, and Eshleman brought his brother, the defendant, to give this paper to secure the debt; and we afterwards made this note simply to wind up the account. It was no extension of time, simply to wind up the account, and made in a note. The defendant came to the store and gave the guaranty. ’ The guaranty was given for the bills that had been purchased, amounting to nearly $600, and the guaranty is for $600 — that is, goods that had been purchased and were to be purchased to the amount of $600. The note was simply to settle the account, and put it in a note. It was no extension of time.</p> <p>“ I was book-keeper for Aldridge & Co. We did not regard John J. Eshleman or Eshleman and Fletcher as being worth anything. We wrote to the defendant, Dr. Eshleman, for the money.”</p> <p>Cross-examined. — “I had a fixed salary.; had no interest in the profits1 or commissions. I was only a book-keeper. I believe the conversation I had with Dr. Eshleman' on the day I drew up the paper was the first conversation I ever heard him have with these parties on the matter. I think his brother was with him when he gave the guaranty; to the best o’f my recollection he was. I can’t positively say whether he was. or not. I think Mr. Aldridge and Mr. George were present. It is hard to recollect. I do remember that Mr. Aldridge was there. I believe Mr. George was, and also John J. Eshleman and his brother. This conversation took place at the counting-room of Aldridge & Co. I believe I heard all that was said at that "conversation. I did hear all that was said. I was occupied simply in attending to the doctor’s case while he was there. I had no other occupation at that time. I may have taken some part in that conversation. Of course I did. I drew up the paper. I have no recollection of any remark I made there. John Eshleman said that he wanted to give security. I don’t recollect" his saying anything else. I don’t recollect anything Mr. George said that day. I think Mr. George said that he had verbal authority from the Dr. to sell these parties.”</p> <p>[Mr. Bríndele objects to the answer as a volunteer, and not an answer to his question.</p> <p>Mr. Bríndele cautions the witness that Mr. George has already sworn that he was not present.]</p> <p>“I have not yet said positively that Mr. George was there, but it is my belief he was there; according to the best of my recollection he made that remark. I am not as certain that he made that remark as I am of some of the rest of what I have sworn to. I don’t recollect anything else that Mr. George said on that occasion. I don’t know that I recollect all that Dr. Eshleman said on that occasion. All I recollect Mr. Aldridge said was, that he wanted the Dr. to secure the debt, and he asked me to draw up a paper for the Dr. to sign to secure the debt that he had bought, and to buy to the extent of $600. I can’t give his exact words. No man living could give the exact words eighteen months afterwards. He used the words ‘ draw up a paper to secure the debt that has accrued and will accrue to the amount of $600.’ That was the sense of it. It was the meaning of what he said. Whether it was his precise words or not I cannot say.</p> <p>“ That is all I recollect of his saying—</p> <p>“ Dr. Eshleman §aid he was willing to give the security to the extent of $600, but that he had some private arrangement with Dr. Jayne that interfered with his endorsing notes, but that he was willing to give a paper of that kind to the extent of $600, to secure that amount that had accrued and would accrue. That was about all he said — I think that was all he said.</p> <p>Question. — “ Why did you not draw up the paper in that way, to secure debts that had accrued or would accrue ?”</p> <p>Answer. — “ Because I believed the paper I drew up would be ample security — I did not believe it to be necessary; if it was, I was ignorant of that fact.”</p> <p>Question. — “ Although both parties had directed you to draw up the paper in that way, you did not do it ?”</p> <p>Answer. — “ I believed that this paper that I drew up would cover the whole ground of securityship. I don’t know that anything was said at that interview about Eshleman and Fletcher being worthless, but that was the understanding of the parties.” [Mr. Bríndele objects to the latter part of the answer, because it is mere hearsay and volunteered, and is not an answer to the question.]</p> <p>Question. — “ Was anything said at that interview about Eshleman and Fletcher being worthless ?”</p> <p>Answer. — “ I don’t recollect that there was. I don’t remember that Fletcher’s name was mentioned at that interview.”</p> <p>Question. — “ Do you recollect anything else that was said by anybody at that interview? Think carefully, and answer?”</p> <p>Answer. — “ I don’t believe I do.”</p> <p>Re-examined. — “ The firm of John J. Eshleman and Eshleman and Fletcher were one and the samé thing. Eshleman being the principal man, and purchasing the goods, and we regarded the security as covering both. It was so understood at that time, I am satisfied, by all the parties.”</p> <p>The counsel for the defendant objected to all of the deposition following the words “I know that paper, &c.,” and it was ruled out by the court. The insolvency of John J. Eshleman was admitted by the defendant.</p> <p>The plaintiffs then proved their book of original entries, and read in evidence, without objection, three charges against Eshleman of March 5th and 29th 1861, amounting to $141.74. A fourth entry against him of April 3d 1861, was objected to by defendant’s counsel, because it was after the date of the instrument declared on, and it was withdrawn. Entries against Eshleman and Fletcher were also objected to, and rejected.</p> <p>The learned judge before whom the case was tried charged the jury as follows :—</p> <p>“This is an action which is somewhat.peculiar. It is a suit on a guaranty, made April 2d 1861. The plaintiffs’ claim is $585.75, with interest. The plaintiffs have given no evidence of goods bought or sold. The only evidence of any goods bought vre have is defendant’s admission to a certain amount. The plaintiff says the language is of a past transaction. I do not so interpret the paper. It refers to the future alone. You can give no verdict beyond the amount admitted by the defendant, $141.74.”</p> <p>The jury found accordingly. Whereupon the plaintiffs sued out this writ, averring here,</p> <p>1. That the court below erred in rejecting the deposition of James M. Stevens.</p> <p>2. In overruling the plaintiffs’ offer to prove the circumstances under which the guaranty had been given.</p> <p>3. In overruling the plaintiffs’ offer to • show by their book of original entries charges against Eshleman and Fletcher for goods bought by John J. Eshleman, one of said firm, after the date of the guaranty.</p> <p>5. In charging the jury that the language of the paper or guaranty “refers to the future alone.”</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of covenant brought, January 27th 1862, by John II. Coffin against Charles K. Landis.</p> <p>The plaintiff declared on the following article of agreement between him and the defendant:—</p> <p>“ This article of agreement witnesseth between Charles K. Landis and J. H. Coffin: — Whereas, Charles K. Landis, of the town of Ilammonton, Atlantic county, N. J., is about founding a colony called Vineland, upon the Millville and Glassboro’ Railroad, in Cumberland and Gloucester counties, the land for which has been received from R. D. Wood, Charles E. Ebsner, and other parties. Now, in consideration of the time, services, and abilities of the said J. II. Coflin, directed to the sale of land to customers brought by the advertising of the said Landis, or under his influence, or any other influence, the said Charles K. Landis agrees to give the said J. H. Coffin one half of the clear profits upon all the land he, the said J. H. Coffin, may sell to any of the said customers; said profits to be calculated over and above expenses and cost of land; the cost of the land to be calculated at the rate per acre said Landis has to pay for the same, and the expenses each month to be calculated upon the number of acres sold; settlements of the books to be made each month, and the said Cofiin at all times to have the right of access to his account, and to have the right to examine all original agreements which said Landis may make for land, as connected with this enterprise. It being well understood, however, that profit is only to be allowed upon sales which turn out to be good, and where money is paid upon places said Coffin may sell and forfeited, then, after deducting expenses, such money also to be counted as profits. And it is hereby understood that, while the said Coffin is engaged in this business, he shall not engage in other occupations, in order that his time and attention may not be withdrawn from the customers aforesaid; and, in consideration of the same, it is understood between the said parties that said C. 'K. Landis will not interfere with said J. H. Coffin in making sales to said customers when they arrive, and that no other assistant will be procured unless the number of customers who arrive is such as to be beyond the capacity of the said Coffin to attend and sell to them. And in consideration aforesaid, the said J. H. Coffin to facilitate the said Landis in any other way, in the furtherance of his enterprise, either in the way of his procuring land, general information, or attending to his general business as connected with the enterprise, and, if necessary for the success of the enterprise, that he will board and lodge in the same house opened for the accommodation of visitors and customers aforesaid.</p> <p>“ The said Coffin to keep a daily journal or memorandum of his business, for the use of said Landis.</p> <p>“ This agreement is not intended to create any copartnership, but is intended to secure to the said Landis the services of the said Coffin, and to secure to the said Coffin a remuneration therefor.</p> <p>“ In witness whereof, the said parties have hereunto set their hands and seals, this 2d day of October, A. D. 1861.”</p> <p>The declaration contained two counts, and in the first assigned as breach that the defendant did not give the plaintiff one-half of the profits of the land the plaintiff sold, or permit him to examine the agreements the defendant made, and procured other assistants though not necessary, and that $5000 of the profits • aforesaid were due; and in the second, that the defendant did not give the plaintiff one-half of the profits of the land the plaintiff sold or might have sold, and concluding as in the first count.</p> <p>The defendant pleaded “non est factum, and covenant performed,” with leave, &c., absque hoc; and upon the issues thus made up, the parties went to trial.</p> <p>When the testimony was closed, the defendant presented several points, on which the instruction of the court was requested.</p> <p>The court reserved the defendant’s 1st point, viz. whether “ the defendant, under the written contract declared upon in this case, had the right to terminate their relation, and discharge the plaintiff from his service at any time at his, the defendant’s, pleasure, and the plaintiff can recover for any service or loss of service after such discharge.” And left the case, on the evidence as on a hiring for a year, to the jury, who rendered a verdict for $2250. Upon the point reserved, the court subsequently delivered their opinion in writing, holding that the contract was terminable by either party without notice and without cause; which was the error assigned by the plaintiff.</p>

<p>Replevin.— When damages may exceed value of property taleen. — Improper assignments of error. — Judgment against defendant in replevin not satisfied by giving up the property and paying damages. — Retorno habendo, when properly issued.</p> <p>1. In replevin, damages beyond the value of the property taken may be given where the taking was accompanied with wrong and outrage, though the declaration contain no count claiming special damage, nor any averment that the taking was accompanied with circumstances of outrage and oppression; but if consequential damages are claimed, not necessarily or naturally resulting from the tortious act, they must be specially pleaded.</p> <p>2. An assignment of error, that the verdict of the jury was against the law, is improper.</p> <p>3. Where goods are not replevied, but are detained by the defendant, he cannot satisfy a judgment against him in replevin by giving up the property and paying the damages assessed for the taking and detention; retorno habendo has no existence, except in a case where the goods have been replevied, and the verdict is for the defendant.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of covenant by Frederick C. Brightly and John F. Combs, executors of Martin Curren, deceased, against William S. Cook, to recover the arrears of an undivided sixth part of a ground-rent of $180 per annum, issuing out of a lot of ground on the south side of Prune street, between Fourth and Fifth streets, in the city of Philadelphia, namely, seven half-yearly sums of $15 each, falling due from the 1st July 1859 to the 1st July 1862, amounting in the whole to $105, with interest thereon.</p> <p>David Montgomery died seised of the lot of ground on which the ground-rent in question was charged, and by his will, dated the 23d day of February 1825, authorized and empowered his executors, and the survivor of them, to sell or to let the premises in question on ground-rent; and devised and bequeathed the residue of his estate, after the payment of certain legacies, including the purchase-money or the rents to he reserved out of the said premises, to be equally divided between his six children by his then wife, Isabella Montgomery, in equal shares, as tenants in common.</p> <p>On the 20th of June 1833, Cornelius Stevenson, the surviving executor of David Montgomery, deceased, granted the lot in question to William S. Cook, the defendant, in fee, reserving thereout a yearly ground-rent of $180, payable unto the said Cornelius Stevenson, in trust for the uses and purposes mentioned in the will of the said David Montgomery, deceased, concerning his residuary estate, or for the said cestui que trust for the time being; the defendant thereby covenanting to pay the said ground-rent in half-yearly payments, on the 1st days of January and July, to the said Cornelius Stevenson, his heirs or assigns, for the uses and purposes mentioned in the will of David Montgomery, deceased, concerning his residuary estate, or to the cestui que trust for the time being.</p> <p>The subsequent title to the ground-rent was as follows: — On the 16th July 1841, Robert C. Montgomery, one of the children and devisees of David Montgomery, deceased, conveyed his undivided sixth part of the ground-rent to John McLaughlin in fee. January 17th 1848, John McLaughlin and wife conveyed the same to John Tucker in fee. Tucker was a creditor of McLaughlin to'the extent of $7000, and this ground-rent (inter alia) was conveyed to him as security for his debt. June 9th 1855, John Tucker and wife conveyed his undivided sixth of the ground-rent to Martin Curren in fee.</p> <p>The title to the fee was transmitted thus: — William S. Cook died intestate, leaving an only child, Sarah A. Cook, to whom the premises descended in fee. October 15th 1850, after McLaughlin had parted with his interest in the ground-rent, Sarah A. Cook conveyed to him the premises out of which it issued in fee. October 28th 1850, John McLaughlin mortgaged the premises to Sarah A. Cook, in fee, for $500. May 6th 1851, John McLaughlin mortgaged the premises to Andrew McBride, in fee, for $1000. Under this mortgage the terre-tenant claims title. September 25th 1851, John McLaughlin and wife conveyed the premises to John Tucker in fee, subject to the two mortgages, as further security for his indebtedness. June 9th 1855, John Tucker and wife conveyed the premises, out of which the ground-rent issued, to Martin Curren in fee.</p> <p>The conveyances from Tucker and wife to Curren were separate deeds, and were executed to secure Curren, who had become the assignee of Tucker’s claim against McLaughlin; for which he paid the sum of $4000, and took assignments of the securities held by Tucker. Martin Curren devised his real estate to his executors, in trust for the purposes of his will.</p> <p>Proceedings were had in the court below, to June Term 1858, No. 289, upon the mortgage from McLaughlin to McBride; under which the mortgaged premises were sold by the sheriff, and purchased by Robert L. Allen, to whom the sheriff executed a deed on the 10th January 1859. Allen purchased and held the title in trust for James S. Keen, who appeared and took defence, alleging that the ground-rent had merged for the benefit of the mortgagee.</p> <p>There was a special plea setting forth the alleged merger. Under the instructions of the court, there was a verdict for the plaintiff for $116.55, on a point reserved, namely, whether or not the ground-rent had merged in law. A point was also raised as to the right to maintain this action for an undivided portion of the ground-rent.</p> <p>The court below (Hare, J.) delivered the following opinion on the reserved points :—</p> <p>“In this case land, subject to a prior outstanding mortgage, was conveyed by McLaughlin to Tucker, who had previously taken a conveyance from McLaughlin of one undivided sixth part of a ground-rent reserved in the deed, by which' the land had been originally granted to the mortgagor. Subsequently Tucker conveyed both the rent and the land on the same day, but by two separate instruments, to Curren, whose estate in the land was sold not long after wards, under a levari facias issued on the mortgage ; and the action is brought by Curren’s executors, for the recovery of a due proportion of the rent.</p> <p>“ Two questions were raised at the trial, one whether the rent was extinguished by its union in the same hand with the land out of which it issued, and the other, whether the assignee of an undivided share of a rent or annuity could sue alone, without joining the parties in whom the title to the residue was vested.</p> <p>“Merger is, strictly speaking, the sinking of one estate in another, by the act or operation of the law, and may take place not only independently of, but against intention: Preston on Merger, 6, 44. For example, when an estate for years and a remainder for life are limited to the same person by the same deed, the term will be swallowed up in the freehold, and the whole estate of the grantee cease immediately upon his death, contrary to the plain object of the grant, which was that his interest should survive to his executors, if he died before the expiration of the term. In like manner, where a rent issuing out of land, and the land out of which it issues meet in -the same hand, the rent will cease whether the purpose is that it should be extinguished or kept alive: Bacon’s Abr., vol. 3, p. 102, title Extinguishment. The rule on these points is ordinarily the same in equity as at law, because equity will, equally with the law, presume that men intend to produce the results which flow directly and legally from their actions, and refuse to permit the terms of the deeds or other assurances by which estates are conveyed, to be varied by parol and extrinsic evidence, that something else was meant than those terms import.</p> <p>“In order, however, to make this rule applicable, all the circumstances must concur which are technically requisite to produce a merger; for if they do not — if one estate be, for instance, legal and the other equitable, or both kept apart by an outstanding legal title, the problem will be purely equitable, and depend for its solution on the meaning of the parties as disclosed by any legitimate means of proof, or deduced inferentially from that which would have been most beneficial to them, or tended most directly to promote the end which they had in view.</p> <p>“ On applying these principles to the facts in evidence, it becomes plain that as the estate in the land and that in the rent were only kept apart by the outstanding legal title of the mortgagee, but rendered different in kind, no merger could take place at law, and equally so that there is nothing in the case to render estates separate at law, one in equity. Equitable merger is always founded on intention, either actual or presumed from what would have been most beneficial to the party himself,' or some one whose rights he was bound to respect and preserve; and here inference and proof both concur to show that the intention was and might properly be, to keep the land and rent as separate as if both had belonged to different persons. That Tucker neither meant to produce a merger, in the first instance, nor supposed subsequently that one had occurred, is shown by the deed from him to Curren of June 9th 1855, in which the rent was conveyed as a subsisting estate, not in anywise extinguished or drowned in the land; and it is equally plain, that while he could not have been benefited, he might easily have been prejudiced by a result which would have enlarged the fee for the benefit of mortgagee, and enabled him to sweep away the whole of that which had previously been only within his reach in part, by proceeding to judgment and execution on the mortgage, and selling the land free from the burden of the rent.</p> <p>“ This argument applies with still more force to the subsequent possession of Curren, who evinced his wish that the rent and the land should remain distinct, by having them conveyed to him severally by separate deeds, and could only have lost by the extinguishment of the unencumbered title to the rent, in the encumbered title to the land. If the mortgage had originally been made or subsequently assumed by Tucker, the case might have been different, because every man is, in the contemplation of the law, interested in paying his debts, or augmenting the security for their payment ; but this cannot be said of a charge imposed on land by a third person, and which the owner is under no obligation to pay.</p> <p>“We are therefore clearly of opinion, that the estates in question remained distinct not only while both were held by Tucker, but after they had been conveyed by him to Curren, and down to the period at which they were separated by the sale of the land and its purchase by the defendant; and this is necessarily decisive of the whole question, because the case is not one in which the state of things could be varied by the intervention of a purchaser, or his rights rise higher than those of the party whose estate he bought. All the circumstances tending to prevent a merger, and keep the land and rent apart; the legal title to the land was outstanding in the hands of the mortgagee; that the mortgage had been executed by a third person, and that it was consequently the interest of the party in whom both the rent and the land are alleged to have been united, to keep them separate, were upon or deducible from the record, and as open to every one who thought fit to make them the subject of investigation, as they are to the court. If, therefore, notice had been necessary to complete the plaintiff’s title, and bind the conscience of the defendant, there would probably have been enough to constitute notice here. But the case does not require the aid of this consideration, because the right in virtue of which the plaintiff sues, instead of being gone at law, and subsisting only in equity, is, as we have seen, equally good in both jurisdictions, and consequently binding on third persons, whether they were or were not. aware of its existence.</p> <p>“ Agreeably to the English books, an assignee of the whole of the reversion in part of the land, or part of the reversion in the whole, comes within the beneficial and enabling operation of the 82 Henry 8, ch. 84, and may sue separately on all covenants made to the assignor, which are in their own nature capable of running with land: Twynam v. Pickard, 3 B. & Ad. 125; Bacon’s Abr., vol. 3, 104, Extinguishment; 1 Smith’s L. Oases 44.</p> <p>“It is, however, difficult to believe, that there can be any general or invariable rule, governing all cases of this nature; and the necessity for the joinder of all the parties in interest as plaintiffs should, as it would seem, depend on whether their union on the record is essential to justice and the protection of the defendant. Remainder-men need not be joined in a suit brought for the recovery of rent by the tenant for life, because the cause of action is vested exclusively in him, and does not in anywise touch or affect their interest.</p> <p>“ But a tenant for life obviously cannot sue alone, without joining those in remainder, for the violation of a covenant of warranty, or to make repairs, or the breach of any other agreement affecting the fee, without the risk of injustice to the defendant, who could not plead the verdict and judgment as a bar to a subsequent action by the remainder-men, and might have a judgment entered against him for some part of that which he had already been compelled to pay in the first proceeding : McClure v. Gamble, 3 Casey 282. In like manner a purchaser of one or more of the lots or fields of a farm or tract which has been leased for life or years, can hardly, as it would seem, be entitled to a separate action for the rent against the lessee, because there would, under these circumstances, be no means of apportioning the rent, and determining how much was due to the plaintiff, and how much to the party from whom he purchased. But the objection does not arise when the plaintiff has, as in the present instance, an aliquot or other definite divided or undivided interest, and where there is consequently no difficulty in ascertaining his proportion of the rent for which he sues. The joinder of parties who may be dead, absent, or discordant, is often attended with inconvenience, and should not be made obligatory unless some greater inconvenience will arise if they are not joined. We are therefore of opinion, that the failure to unite the other owners of the ground-rent is not a bar to the maintenance of this suit, and give judgment for the plaintiff on both the points reserved.”</p> <p>Judgment having been entered accordingly, the defendant sued out this writ, assigning for error the ruling of the court on the reserved points.</p>

<p>Error to the Common Pleas of Schuyllcill county.</p> <p>This was an amicable action between the County of Schuylkill and Washington Reifsnyder, keeper of the jail of the county, in which the following facts were stated for the opinion of the court</p> <p>“ At a Court of Oyer and Terminer, held at Pottsville, in and for the said county, on the 15th day of December 1859, one Francis Deibert was sentenced, after a conviction of manslaughter, to pay a fine of six cents to the Commonwealth, the costs of prosecution, and undergo an imprisonment in the Schuylkill county prison, in separate and solitary confinement at labour, for the period of six years, and stand committed until the sentence be complied with.</p> <p>“ The costs of prosecution amount to the sum of ($154.22.) On the 23d of October last, the prisoner was discharged from prison by the defendant, who was the keeper thereof, without the payment of any of the costs of prosecution, and without the consent of the county commissioners, or of any of the parties entitled to the costs, by virtue of a pardon of Governor Curtin, which was made a part of this case stated.</p> <p>“ If the court be of the opinion that the prisoner was lawfully discharged by the defendant without payment of the costs of the prosecution, then judgment shall be entered for the defendant; but if contrariwise, then judgment shall be entered for the plaintiff for the said sum of $154.22, with interest from this date. The costs shall follow the judgment, and either party shall have the right to sue out a writ of error.”</p> <p>November 28d 1863, after argument, the court ordered judgment to be entered in favour of the defendant, which was the error assigned.</p>

<p> Liability of sureties of county treasurer. </p> <p>The sureties on the official bond of a county treasurer are liable for the balance found to be due by him, on settlement of his accounts by the county auditors, whether or not the commissioners had exceeded their legal powers in borrowing money; if raised by them and brought to the county treasury, the treasurer is bound to keep and disburse it, and for default his sureties are responsible.</p>

<p>Error to the Common Pleas of Snyder county.</p> <p>This was an action of ejectment, by Peter Clemens and Harriet his wife, brought January 22d 1862, to recover the undivided ■moiety of a tract of land in Chapman township.</p> <p>Under the ruling of the court below (Wood, P. J.), there was a verdict and judgment in favour of the plaintiff. Whereupon this writ was sued out by the defendant.</p> <p>All the material facts of the case, and the matters assigned here for error, are fully stated in the opinion of this court.</p>

<p>Error to the Common Pleas of Union county.</p> <p>This was an action of trespass quare clausum fregit, brought by Benjamin Fetter against Samuel C. Wilt, John Weiriclc, John Hassenplug, and Samuel Shannon, for taking and carrying away a quantity of cakes, bread, pies, cheese, small beer, segars, peanuts, &c., belonging to the plaintiff.</p> <p>The case was this: — Fetter was in 1859 the owner of a house and lot in Buffalo township, where he carried on the business of tailoring. In August 1859, the members of the Methodist Episcopal Church, in that neighbourhood, announced that a camp-meeting would be held on the farm of Daniel Rangier, about half a mile from Mr. Fetter’s house.</p> <p>On this Mr. Fetter erected a wooden building or summer-house at the end of his dwelling, and, about the commencement of the camp-meeting, laid in a supply of the articles above mentioned, and commenced selling them. There were no strong or intoxicating liquors offered for sale by him. The managers of the meeting called on Mr. Fetter and requested him to desist from selling, averring that his conduct was in violation of the Act of April 2d 1822, entitled “An act to prevent the disturbance of meetings held for the purpose of religious worship,” which prohibited the sale of any article of traffic within three miles of such meeting.</p> <p>Mr. Fetter refusing to comply, the defendants, under the authority of the Act of Assembly, entered upon his premises and removed all the articles he was selling, together with the boiler of his cooking-stove, and a meat-saw, all of which they afterwards sold.</p> <p>This was the trespass for which suit was brought.</p> <p>Samuel Corl and Samuel O. Wilt, the two persons who, as “freeholders,” were engaged in removing the goods above mentioned, were not at the time owners of unencumbered real estate.</p> <p>Under the ruling of the court below, there was a verdict and judgment in favour of the defendants. Whereupon the plaintiff sued out this writ, assigning for error the answer given by the court below to certain points propounded by the parties.</p> <p>The propositions argued in the court below and in this court were—</p> <p>1. Whether the plaintiff, selling eatables, &c., on his own premises, at his own dwelling-house, is subject to have such property seized and sold under the Act of 2d of April 1822.</p> <p>2. Whether men whose real estate is encumbered by judgments are freeholders, within the meaning of the Act of 2d of April 1822.</p> <p>8. Whether, under any circumstances, plaintiff’s tumblers, boilers, meat-saw, and cakes were liable to seizure; and</p> <p>4. Whether, under the evidence, defendants .were not clearly trespassers.</p>

<p>Error to the Common Pleas of Northumberland county.</p> <p>This was an action of trespass by David Marr and Benjamin Griffey, partners, trading as Marr & Griffey, against Joseph Weitzel, to recover damages for taking the lumber of the plaintiffs.</p> <p>The facts of the case were these: — The plaintiffs were contractors for. erecting a railroad bridge across the North Branch of the Susquehanna, at the island now owned by Joseph Weitzel. They commenced the construction of this bridge in 1855, and finished it in 1856. To enable them to prepare the timber to be used in the construction of this bridge, it was necessary they should have some place on which they could place and frame it. The persons who had previously constructed the Northumberland bridge had used for that purpose a piece of ground east of the main road, leading from Sunbury to Northumberland, across the island, and this same piece was used by the plaintiffs for placing the timber and framing it. At the time, and before the plaintiffs commenced work, the island belonged to the estate of Ebenezer Greenough, deceased, and was then in possession of George Gaul, the tenant of the executors, or devisees of Mr. Greenough. On the 9th of May 1855, W. I. Greenough, as executor of his fatner’s estate, leased the piece of ground described in the lease to the plaintiffs, for the purpose for which they wished to occupy it and use it for the period of ten months and twenty-two days, which would expire on the 31st of March 1856. This lease was given with the consent of George Gaul, the tenant, who permitted the plaintiffs to leave the lumber there. It was there until Gaul left, which was about the 1st of April 1857.-Mr. Weitzel purchased the island from the executors of Mr. Greenough, March 19th 1857, and took possession.</p> <p>In April or May 1857, Marr made a demand for the lumber, which remained on the ground after the bridge was finished, which Weitzel refused to deliver, having first removed it to make room for a barn which he was about building, and afterwards used portions of it in constructing his barn. Marr offered to pay any reasonable damage the lumber had been to him, which he also refused.</p> <p>This suit was then brought as above stated.</p> <p>The legal point presented to the court below was, whether, under the facts of the case, the defendant was liable in an action of trespass, vi et armis.</p> <p>The court below instructed the jury that the action was well brought, that the property belonged to the plaintiffs, they had a right to the possession of it, and had demanded it soon after Gaul had left the island, submitting to the jury the question of the quantity and value of the lumber taken.</p> <p>Under these instructions, there was a verdict and judgment for the plaintiffs. Whereupon the defendant sued out this writ, assigning for error the instruction of the court as above stated.</p>

<p>Judgment against executors on narr. charging them personally and as executors. — Instructions on points not sustained by testimony. — Proper mode of discrediting witness.</p> <p>1. In an action against executors, a general verdict and judgment cannot be sustained, where counts in the narr. against them on their personal promise are joined with one, on the promise of the testator; the counts are incongruous, requiring different judgments, the first de bonis testatoris and the other de bonis propriis.</p> <p>2. But where there has been a special finding upon the last count, or if there be no evidence on the first two, and judgment has been specially entered upon the last, it will be good.</p> <p>3. Where a receipt in full of one of two partner plaintiffs is offered in evidence by the defendants, relating to the subject-matter of the suit, it is error in the court in the charge to lead the jury to inquire whether the receipt was not applicable to some other claim of the plaintiffs, where no evidence of any such claim has been given.</p> <p>4. Where the plaintiffs claimed under an order which they alleged defendant’s testator had promised to pay, and his declarations as given in evidence did not prove either an acceptance or a promise to pay the sum named in it, the instruction of the court to the jury, in effect, that the declarations of the testator could not be accounted for under any other hypothesis than his liar bility for the amount of the order, was held error.</p> <p>5. To discredit a witness, the first inquiry of the witnesses called for that purpose, must be, as to their acquaintance with him, and his general character for truth and veracity in the neighbourhood where he resides; next, what that reputation is; then, the question may be asked whether from their knowledge of his general reputation for truth they would believe him under oath.</p>

<p>Act o/1851, relative to non-resident defendants in ejectment, construed.— How affected by Act of April 13th 1858, relative to ejectment for unseated land.</p> <p>1. The Act of 14th April 1851, providing that in any action brought by a vendor to enforce specific performance of a contract for sale of unoccupied land, where the vendees cannot be found in the county, judgment for default may be entered after sixty days' publication of a rule to appear and plead, must be construed in connection with Act 13th April 1858, declaring that the Act of 1851 shall extend to all cases where claimants or mortgagees desire to bring ejectment for unseated or unoccupied land and the adverse party does not reside in the county ; and with the proviso thereto that before trial or judgment shall be had in any such suit, it shall be made to appear to the satisfaction of the court that the defendant had notice in fact of the suit, in time to appear and defend it: and the proviso extends to the case of an ejectment by a vendor against a vendee for specific performance.</p> <p>2. Therefore, in an ejectment by a vendor against a vendee, the advertisement of notice for sixty days, as required by the Act of 14th April 1851, is not sufficient to authorize the entry of judgment for default: and it is error to permit the judgment to be taken without proof of notice in fact to the vendee as required by the proviso.</p>

<p>Certificate from the Court at Nisi Prius.</p> <p>This was an action of ejectment, by Fleetwood Lodge against William Barnett, for a piece of ground in the Seventeenth Ward of the city of Philadelphia, on the east side of Fifth street, near Master street. The controversy was about a small strip of ground, seven or eight feet wide, extending across the eastern end of a lot which defendant had purchased in April 1858 from the St. George Society, but which the plaintiff claimed as part of his lot, which was purchased by him at sheriff’s sale. Both lots were formerly included in a larger one, which was divided and disposed of as follows:—</p> <p>In the year 1852, George, John, and Edward Millett, trading as Millett & Brothers, were the owners in fee of a large lot of ground running all the way through from the east side of Fifth street to the west side of Apple, now Lawrence street, and beginning two hundred and twenty-eight feet six inches south of Master street.</p> <p>This lot contained eighty feet front on both streets, and extended in depth two hundred and nine feet three inches on the north line, and two hundred and nine feet ten and one-fourth inches on the south line.</p> <p>In that year the Milletts constructed a four-story brick factory building, extending across the middle of their lot, from north to south, with its western wall located upon a line running nor-th and south, at the distance of one hundred and thirty feet west of Apple street, which is the east line of the defendant’s lot. About the same time they also built five dwelling-houses on the west side of the lot fronting on Eifth street, each being sixteen feet in front, and running back east to the factory in depth. The defendant’s house is one of these five.</p> <p>Mechanics’ liens were filed against the factory, and on the 17th of December 1852, on petition of the owners, commissioners were appointed to designate the boundaries of the several portions of the lot which should be appurtenant- to the several buildings erected thereon, which was so proceeded in that the lots on Eifth street were declared to be sixteen feet each in front by seventy-three feet in depth extending towards Apple street.</p> <p>On the 14th of July 1852, the Milletts mortgaged to the Second St. George’s Society the factory lot. The description in the mortgage was as follows:—</p> <p>“ All that lot or piece of ground, together with the four-story brick building or factory, and the two-story brick engine or boiler-house thereon erected, situate on the west side of Apple street, at the distance of two hundred and twenty-eight feet six inches southward from Masters street, in the Kensington district of the Northern Liberties, in the county of Philadelphia, containing in front or breadth on Apple street aforesaid eighty feet, and in length or depth, extending thence westward the same breadth at right angles with said Apple street one hundred and thirty feet. Bounded north by ground of Mark Devine, southward by ground now or late of Alexander Kremkau, and by other ground now or late of George R. Smith, eastward by Apple street, and westward by other ground of the said George Millett, John Millett, and Edward G. Millett.”</p> <p>On the 19th of November 1852, they mortgaged the five Eifth street lots to the St. George’s Society. The description in this mortgage was as follows:—</p> <p>“ All that certain lot or piece of ground, with two three-story brick houses or messuages thereon erected, or in the course of erection, situate on the east side of the Old York Road, or Eifth street, at the distance of two hundred and twenty-eight feet and six inches southward from Masters street, in the Kensington distnct of the Northern Liberties, containing in front or breadth on said road or street thirty-two feet, and extending 'in length or breadth seventy-four feet eastward of that breadth, and at right angles with said Fifth street (each house having or being erected on a lot, &c., of sixteen feet front or breadth, and of the depth aforesaid). Bounded north by ground now or late of Mark Devine, south by ground now or late of the said Edward G. Millett, east by ground of the said George, John, and Edward G., the parties of the first part, and west by Fifth street aforesaid.”</p> <p>Afterwards judgments were obtained against the Milletts, and sheriff’s sale thereon being had, the plaintiff purchased from the sheriff’s grantees the factory lot on August 8th 1856. The description in this deed is as follows:—</p> <p>“ All that certain lot or pieceof ground, together with the four-story brick building, or factory, and the two-story brick engine and boiler-house thereon erected, situate on the west side of Apple street, two hundred and twenty-eight feet six inches southward from the south side of Masters street, in the late district of Kensington, in the city aforesaid, containing in front or breadth on the said Apple street eighty feet, and in length or depth, extending thence westward the same breadth at right angles with the said Apple street one hundred and thirty feet, or thereabouts. Bounded northward by ground of Mark Devine, southward by ground now or late of George R. Smith, eastward by Apple street, and westward by ground now or late of George Millett, John Millett, and Edward G. Millett.</p> <p>“ Together with all and singular the streets, roads, ways, waters, watercourses, rights, liberties, privileges, hereditaments, and appurtenances whatsoever thereunto belonging, or in anywise appertaining.”</p> <p>On April 23d 1858, the defendant Barnett purchased mediately from the sheriff’s grantee, Cuyler, one of the five Fifth street lots, as above stated.</p> <p>Along the outside of the plaintiff’s west factory wall, and extending across the whole width of the defendant’s lot, and the lot next adjoining defendant’s on the north, or No. 4, and across the greater portion of the southernmost lot, or No. 6, and lot No. 3, as these lots are described in the foregoing deeds, is a hollow area or space. This area was claimed by plaintiff to be an appurtenance to or a part of the factory itself; its use was that of affording light to a lower tier of windows in the wesr wall of the factory.</p> <p>The area, which was placed there when the factory was built, is irregular in shape, three feet four inches in width at the north end, three feet one inch at the south end, and six feet five inches in its greatest width, or for its whole width on defendant’s lot. The lots have been filled in, to the grade, so that the area appears like an excavation of some six feet in depth, and a thirteen-inch wall was built since the factory around the limit of the area, in order to keep back the earth of the Fifth street lots. Still west of this wall formerly stood a light fence, to which line the plaintiff claims a width of about seven and a half feet west from the factory wall.</p> <p>Finding this conflict of lines between himself and plaintiff, the defendant, soon after coming to possession, caused an official survey to be made by the city surveyor. Notice was given the plaintiff and defendant, who both attended, and the result of the survey was, that the area in question was found within the limits of the defendant’s deed. No appeal was taken by the plaintiff from the result of this survey.</p> <p>The plaintiff then commenced, in conjunction with the St. George Society, his grantors and mortgagees, to negotiate for the purchase of the area from Fowler and defendant.</p> <p>A sale was soon made for $200 by Fowler, and a deed given to plaintiff May 15th 1860, of that part of the area within the lines of his deeds described as the easternmost seven feet of his lots. The St. George’s Society or the ■ plaintiff then offered to purchase the part in dispute of the defendant, but failed to agree.</p> <p>No settlement having been made, the defendant notified plaintiff that unless some arrangement was made at once he should remove the area wall fence, and that he intended to make use of the ground. He procured the services of the city surveyor again to mark the boundary line and distances, which was done after due notice to the plaintiff. From neither of these surveys did the plaintiff take any appeal. After the second survey the defendant removed the fence, and has since claimed to occupy the whole ground described in his deed as surveyed by the official surveyor, and extending to the western wall of the factory.</p> <p>The defendant requested the learned judge to charge,</p> <p>1. That if the jury believe that the premises claimed by the plaintiff lie outside of and beyond the deed under which he holds, he cannot recover in this action.</p> <p>2. That according to the testimony the plaintiff’s right against defendant is in the nature of an easement for light and air, and that therefore the plaintiff cannot recover in this form of action.</p> <p>3. That a right by prescription or prior enjoyment of ancient lights or windows does not exist in Pennsylvania, and that as between different owners of adjoining properties (originally the same estate), there must be a special agreement or grant, the right never being presumed from lapse of time.</p> <p>4. That if the jury believe that the premises, including defendant’s grounds, were sold at a date anterior to the sale of plaintiff’s property, without any reservation for servitude of light or air to the plaintiff’s property, the plaintiff cannot recover in this form of action.</p> <p>5. That the plaintiff having filed no statement or declaration, is therefore not entitled to recover damages.</p> <p>6. That the rule of law that monuments govern distances is not inflexible, but is one subject to exception, and the rule does not apply to this case, inasmuch as there is no conflict of lines, and as no monuments are referred to by the deeds of the respective parties in describing the boundaries of the lands conveyed.</p> <p>7. That if the jury find from the evidence that the line, as set up by defendant, is the line run by the surveyor “ on reasonable notice beforehand to the parties interested therein,” and that the plaintiff did not appeal therefrom, then said survey concludes and binds “ all persons,” and the verdict should be for defendant.</p> <p>The learned chief justice charged the jury, inter alia, as follows :—</p> <p>“ The jury will decide whether, under the evidence, the plaintiff’s title extends so as to include the land in dispute. And the court reserves the question whether the monuments on the ground, aided by the mortgage of the Milletts to the Building Society, and the report of the commissioners in the mechanic’s lien cases, are sufficient to control the distances mentioned in the sheriff’s deed; and also whether the survey, unappealed from, is conclusive against the plaintiff’s claim.”</p> <p>Upon which,.judgment for plaintiff was subsequently entered.</p> <p>The ■ case was thereupon certified to the court in banc, where the following errors were assigned:—</p> <p>1. Admitting in evidence the records of the mortgages of the Milletts to the First and Second St. George’s Societies.</p> <p>2. Admitting in evidence “the record of the District Court M. L. D. No. 76-]. December Term 1852. Petition to fix curtilages, and the report of the commissioners thereunder.”</p> <p>8. Leaving it to the jury to decide “ whether, under the evidence, the plaintiff’s title extended so as to include the land in dispute.”</p> <p>4. Declining to charge the jury as requested in defendant’s 1st, 2d, 4th, and 6th points.</p> <p>8. Entering judgment for the plaintiff on the point reserved, as to “ whether the monuments on the ground, aided by the mortgages of the Milletts to the building society, and the report of the commissioners in the mechanic’s lien cases, are sufficient to control the distances mentioned in the sheriff’s deed.”</p> <p>9. Entering judgment for the plaintiff on the point reserved, as to “ whether the survey, unappealed from, is conclusive against the plaintiff’s claim.”</p>

<p>Construction of will creating trust. — Income of trust property, when liable for debts of cestui que trust.</p> <p>1. A testatrix by her will devised real and personal estate to a trustee in trust “ to collect and receive the rents, issues, interest and income therefrom" and after deducting expenses, “to pay over the same unto the cestui que trust for his own use and benefit, or to such person as by his order in writing he may authorize to receive the same and upon his decease, to assign, transfer, and convey the said estate so held, as he by his last will should appoint: and in default of appointment, to such person or persons, for such estates and in such shares, as would be entitled to the same, had he died seised thereof, intestate; Held,</p> <p>(1) . That the trust was an active one, vesting the legal estate in the trustee: but,</p> <p>(2) . That the income for life was the absolute property of the cestui que trust, and was therefore attachable by his creditors.</p> <p>2. The income for life could only have been secured to the cestui que trust by provisions in the will against alienation and liability for debts.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was a scire facias on a mortgage by The Tradesmen’s Saving Fund and Loan Association of Philadelphia against William G. Conrow.</p> <p>Before issue joined, The Spring Garden Loan Association appeared as terre-tenant to defend the suit, and pleaded “ payment with leave,” &e., to which the plaintiffs replied “no payment.”</p> <p>Conrow being the owner of certain premises in Parrjish street, in Philadelphia, made a mortgage on the same to the Tradesmen’s Saving Fund and Loan Association of Philadelphia, dated February 20th 1857, recorded February 25th 1857, for $6400, conditioned for the payment of $3200, within one year from date, with interest payable monthly, and also for the payment of $16 monthly, as instalments on ■ the sixteen shares of the capital stock of the association held by him. He received on the mortgage in cash $2784, at the date of the mortgage, and assigned to the association, at the time of the loan, sixteen shares of stock as collateral security. On this stock he paid instalments of $1680. He paid also $720 as interest on the mortgage; Subsequently he executed to the Spring Garden Loan Association a bond and warrant of attorney, to secure a loan on the same real estate, subject to the first mortgage. On the 22d day of March 1861, he executed an assignment for the benefit of his creditors, to William McCleary. The premises described in the mortgage had been sold at sheriff’s sale to the Spring Garden Loan Association, subject to the first mortgage, and the sheriff executed a deed to them, bearing date and acknowledged May 17th 1862. On the 20th day of October 1862, McCleary notified the association of Conrow’s assignment to him, and that he claimed the stock assigned to them as collateral security, requiring them to collect the whole amount of the mortgage, and not to allow any deduction for Conrow’s payments on the stock. The association thereupon brought this action of scire facias on their mortgage, and the Spring Garden Loan Association took defence as terretenants, as above stated.</p> <p>On the trial of the cause the counsel for the plaintiffs below submitted the following points: — ■</p> <p>1. That William G. Conrow having made a general assignment for the benefit of his creditors to William McCleary, all his interest in the stock of the plaintiffs’ association, passed by that assignment to his assignee. That the assignee having given notice to the plaintiffs not to permit any deduction or set-off in the present suit for the moneys paid by Conrow as instalments on said stock, the terre-tenants have no right to claim a deduction for the sums so paid, and the plaintiffs are entitled to recover the amount of money actually loaned said Conrow, with interest, deducting only such sums as may have been paid by way of interest on the principal and interest of the mortgage sued upon.</p> <p>2. That the payments of instalments upon the stock by William G. Conrow were not in fact payments upon the mortgage, and as his assignee has refused to permit them to be set off in this action, the terre-tenants have no right to require a deduction to be, made from the claim of the plaintiffs for such payments.</p> <p>8. That the plaintiffs are entitled to recover in this suit the amount of the unpaid dues on the stock of the said Conrow in the association.</p> <p>The counsel for the terre-tenants submitted the following points:—</p> <p>1. That the plaintiffs are entitled to recover the amount of money loaned by them to the defendant, less all ¡payments on stock and interest made by him, and no more.</p> <p>2. That the plaintiffs are not entitled to recover instalments on stock.</p> <p>The learned judge affirmed the 1st and 2d points submitted on behalf of plaintiffs, declined to charge as requested in the 3d point, refused to affirm the 1st and 2d points submitted on behalf of the terre-tenants, and directed the jury to render a verdict in favour of the plaintiffs for $3041.91, the amount claimed by them, as follows:—</p> <p>Amount loaned by plaintiffs to defendant . . $2784.00</p> <p>Interest for loan to December 1860 . . . 631.04</p> <p>$3415.04</p> <p>Interest paid by defendant ..... 720.00</p> <p>$2695.04</p> <p>Interest from December 1860 to date of trial . . 346.87</p> <p>$3041.91-</p> <p>Which was the error assigned here for the Spring Garden Loan Association.</p>

This was an amicable action, entered between The County of Lycoming as plaintiff and T. D. Beeber and W. W. Autes, Commissioners of said county, in which the following case was stated for the opinion, of the court:— “ And now, May 4th 1863, it is hereby agreed by and between the parties to the above-stated suit, that the following case be stated for the opinion of the court in the nature of a special verdict: That an indictment was preferred in the Court of Quarter Sessions…

<p> The Statute of Limitations, application of to trust fuuds. </p> <p>The investment of moneys in bonds and mortgages by an attorney in fact, instead of remitting them to his principal, as directed, is not a fraudulent concealment that will prevent the running of the Statute of Limitations, from the time the money collected was demandable.</p>

This was an issue to try the validity of a paper purporting to he the last will and testament of Jacob Werstler, deceased, in which Henry Werstler and Nathan Werstler were plaintiffs, and William Ouster and Lydia his wife, George Shirley and Rebecca his wife, Samuel Missimer and Susanna his wife, Jacob Koch and Sarah his wife, and Jacob Werstler and John Werstler were defendants.

<p>Error to the Common Pleas of Northumberland county.</p> <p>This was an action of assumpsit by The Girard Eire and Marine Insurance Company, endorsees of Paul Thurlow and Joseph B. Hughes, partners doing business as Thurlow, Hughes & Co., against David Marr, on a negotiable promissory note, dated February 16th 1857, drawn by Statton, Marr & Go. to the order of Thurlow, Hughes & Co., for $1493.37, payable seven months after date, endorsed by payees before maturity, and delivered to the plaintiffs as collateral security for money previously loaned to Thurlow, Hughes & Co. by the company.</p> <p>Statton, Marr & Co. were manufacturers of woollen goods in Union county. Thurlow, Hughes & Co. were dealers in wool and woollen goods in Philadelphia. Purchases were made by Statton, Marr & Co. of Thurlow, Hughes & Co., and the note was unquestionably given for a valuable consideration.</p> <p>On the 12th of November, Thurlow, Hughes & Co. adjusted the account of Statton, Marr & Go., showing a balance against the latter of $641.61, for which they gave their note. In this settlement the note on which suit was brought was included.</p> <p>In the summer of 1857, this note was deposited with plaintiffs as collateral security for the sum of $3500, loaned to them in September 1856. In December 1856, $1500 of this loan was repaid. Besides this, other notes were deposited by them with the company as collateral security for the same debt, among which were two notes of Thomas P. Remington & Co., endorsed by Lewis Sacriste & Son, amounting to about $2200, which, against the protestation of Paul Thurlow, of the firm of Thurlow, Hughes & Co., were given up by the plaintiffs in exchange for other notes of Remington, endorsed by Callaghan & Blundin, of about the same amount.</p> <p>In March 1858, after the settlement above mentioned, Joseph B. Hughes, another member of the firm of Thurlow, Hughes & Co., took up these last-mentioned notes, and at the same time gave to the plaintiffs the following paper:—</p> <p>“ Philadelphia, March 15th 1858.</p> <p>“ Girard Ins. Co., the paper of T. P. Remington & Co., endorsed by R. Blundin, as follows: “</p> <p>“ Dec. 24th 1857, sixty days, eleven hundred and thirteen</p> <p>Dec. 24th 1857, thirty days, eleven hundred and thirteen 74020, for the following purposes, viz., to return to the company certificate that they are the owners of a certain judgment against the Blundin property, to the extent of twenty-five per cent, of the above paper, and for the balance the paper of R. Blundin at twelve and twenty-four months.</p> <p>(Signed) Jos. B. Hughes.”</p> <p>From the Richard Blundin property the Girard Fire' and Marine Insurance Company received, through Joseph A. Clay, .trustee, several payments, amounting together to $445.88. This was all the insurance company received on collaterals, so that the note of $1493.37, which they held against Statton, Marr & Co., tvas not sufficient to discharge the balance of the indebtedness of Thurlow, Hughes & Co. to them, for Avhich it Avas endorsed and delivered to them as collateral security. The -firm of Thurlow, Hughes & Co. dissolved partnership in the month of May 1857. On the 8th of Mareh 1860, the Girard Fire and Marine Insurance Company, endorsees of Thurlow, Hughes & Co. brought this action in the Court of Common Pleas of Northumberland county against Statton, Marr & Co., on the promissory note of $1493.37. The writ was only served on David Marr, one of the firm of Statton, Marr & Co., Avho appeared by counsel, and pleaded “ payment with leave,” &e., and subsequently, by leave of the court, “ non assumpsit.”</p> <p>On the trial the defendant offered the depositions of Paul Thurlow and Joseph B. Hughes, who composed the late firm of Thurlow, Hughes & Co., by whom the note was endorsed to plaintiffs, and this without any release; also the deposition of Thomas P. Remington. The depositions, in which the note in suit was identified, the transfer to plaintiffs as collateral security as above stated, and the payment of the note by the makers, was proven, were objected to by plaintiffs on the ground of interest in the witnesses; and also because the matters therein testified to were inadmissible as evidence in the cause, but they were admitted by the court below for the purpose of showing payment of the note in suit.</p> <p>The court decided that, inasmuch as the plaintiffs had exchanged the two Remington notes, endorsed by Lewis Sacriste & Son, for two others endorsed by George Callaghan and Richard Blundin, they had forfeited their claim to the note in suit, and that the settlement made on the 25th of February 1858, between Station, Marr & Co., with Benjamin S. Riley, clerk of the late firm of Thurlow, Hughes & Co., was binding on plaintiffs.</p> <p>After a verdict and judgment for the defendants, this writ was sued out by the plaintiffs, whose assignments of error raised the following questions for the consideration of this court, viz.:—</p> <p>1. Whether Paul Thurlow and Joseph B. Hughes, the persons composing the late firm of Thurlow, Hughes & Co., were competent witnesses, without a release, for defendants to prove the matter set forth in their depositions.</p> <p>2. Whether the court erred in instructing the jury that because the plaintiffs had exchanged the two Thomas P. Remington & Co. notes, endorsed by Lewis Sacriste & Son, for two endorsed by George Callaghan and Richard Blundin, notwithstanding the exchange was recognised by Joseph B. Hughes, and the latter notes being better in point of security than the former, the plaintiffs were deprived of their lien or claim on the note in dispute against Statton, Marr & Co..; or, in other words, that a settlement made by the clerk of Thurlow, Hughes & Co. with defendants, on the 25th of February 1858, is binding on plaintiffs, and prevents a recovery in this action.</p>

<p>Error to the Common Pleas of Schuylkill county.</p> <p>This was an action of ejectment, brought June 18th 1857, by Rebecca Nathans against Michael Murphy and Margaret his wife, for part of lots Nos. 46, 47,.and 48, on Railroad street, Pottsville, containing eighty-five feet in front by one hundred feet in depth.</p> <p>The material facts of the case were these: — On the 10th September 1847, Michael Murphy entered into an agreement in writing with N. Nathans, attorney for Rebecca Nathans, for the purchase of the ground in dispute, for which» he was to pay $2000; $500 at the signing of the agreement, and the balance of the purchase-money in three equal annual payments of $500 each, secured by bonds and mortgage on the premises.</p> <p>On the 17th October 1848, Rebecca Nathans executed and delivered a deed for the property in question to Robert Wood-side, for the consideration of $2000, which was recorded on the 27th October 1848.</p> <p>On the day the deed was executed and delivered, a mortgage was given by Robert Woodside to Rebecca Nathans to secure the payment of $1000 in one year. This mortgage was not recorded until 1856, but remained in the possession of Rebecca Nathans, or her attorney N. Nathans.</p> <p>On the 26th October 1848, Robert Woodside and his wife executed and delivered a deed for the property in question to Mrs. Margaret Murphy. Mrs. Margaret Foy, the mother of Mrs. Murphy, on that day paid to Woodside $2000, in British gold, for the property, and ordered Woodside to make the deed to her daughter, Mrs. Murphy; which he did, and delivered the deed to her in the presence of Mrs. Foy. Mrs. Foy lived in Ireland in 1847, and did not arrive in the United States until September 1st 1848. She left this country in May 1849, and now resides m Ireland. She negotiated the purchase of the lot herself, and testified that she had never heard of the mortgage given by Woodside to Mrs. Nathans, or of any other mortgage or encumbrance on the property.</p> <p>Robert Woodside died on the 10th of April 1850, and Jacob Hebler was appointed his administrator. A scire facias was issued on the Woodside mortgage, returnable to December Term</p> <p>1856, No. 213, by Rebecca Nathans v. Jacob Hebler, administrator of Robert Woodside, which was returned “nihil.”</p> <p>An alias sci. fa. was issued to March Term 1857, No. 76, against Hebler, administrator, and returned “ nihil,” and on the 4th April</p> <p>1857, there was judgment for plaintiff assessed at $1448, against Hebler, administrator of Woodside. A writ of levari facias was issued to 225, June Term 1857, and returned “sold to Rebecca Nathans for 500.” On the 4th of June 1857, the sheriff acknowledged in open court a deed for the premises to Rebecca Nathans; and on the 18th June 1857 the writ of ejectment in this case was issued.</p> <p>The defendant requested the court to charge—</p> <p>1. If the testimony of Margaret Eoy is true, and remains uncontradicted, then she was a purchaser from Woodside for her daughter without notice of the mortgage to Rebecca Nathans.</p> <p>2. The papers given in evidence by plaintiff, as drawn by Mrs. Murphy November 28th 1850 (acknowledging the existence of the mortgage of Woodside), were procured from her after the conveyance to her, and are of no effect.</p> <p>3. There is no title shown in the plaintiff against the persons in possession of the land.</p> <p>4. Under the whole evidence in the cause, the plaintiff cannot recover.</p> <p>On the 1st point the court below (Hegins, P. J.) instructed the jury “ that the fact stated in this point is immaterial, if the jury believed that Margaret Murphy, at the time the deed of Robert Woodside was executed and delivered to' her, knew of the existence of the mortgage from Woodside to Rebecca Nathans, and that it -was a lien upon the lot for which this action was brought.”</p> <p>On the 2d point the court instructed the jury “that the papers referred to would not bind Margaret Murphy to pay the mortgage in question, and for that purpose were of no legal effect— but that they were evidence to be taken into consideration by the jury, with the other evidence in the cause, in deciding whether she had notice of the mortgage at the time the deed was executed and delivered to her by Robert Woodside.”</p> <p>The court refused to instruct the jury as requested in the 3d and 4th points. And after stating the main facts, charged as follows:—</p> <p>“ The question for the decision of the jury under the circumstances is, whether Mrs. Murphy, at the time she purchased and received the deed from Robert Woodside, knew of the mortgage by Woodside to Rebecca Nathans. If she had no notice of it, then your verdict should be for the defendant, for in that case she would take the property free and discharged from the mortgage by virtue of the proceedings on which the plaintiff claims title; but if you arrive at a contrary conclusion from all the evidence in the case, you ought to find for the plaintiff. It is alleged and proved by Mrs. Murphy that the property in question was bought for her by Margaret Foy, and the purchase-money paid by Mrs. Foy; but the court are of opinion that this does not put Mrs. Murphy in any better position than if she had made the purchase, and paid the money herself, if she, at the time the deed was delivered to her, knew of the existence of the mortgage from Woodside to the plaintiff.”</p> <p>Under these instructions there was a verdict and judgment, as follows:—</p> <p>“ The jury find in favour of the plaintiff, with six cents damages and six cents costs, with this condition, that if the defendants do pay to the plaintiff on or before the first day of May 1860, the sum of $1520, with interest from this date, then this verdict to be set aside, and judgment entered by the court in favour of the defendants; but if the defendants do not pay to the plaintiff that sum, and interest with costs of the suit, on or before the first day of May 1860, then final judgment to be entered on the verdict in favour of the plaintiff.”</p> <p>Judgment having been entered on this verdict, the defendants sued out this writ, and filed thirteen specifications of error, nine of which were to the admission of evidence, three to the charge of the court, and one to the form of the verdict, all which are sufficiently stated in the opinion of this eo'urt.”</p>

<p> Jurisdiction of justices as to claim founded on judgment of another justice. </p> <p>A justice of the peace has no jurisdiction of a cause of action founded on the judgment of another justice, except as prescribed by the Act of 1810 ; he cannot therefore set-off a judgment of another justice against one on his own docket, and enter judgment for the balance.</p>

<p>Measure of damages for land taken by railroad company. — Proper subjects of compensation.— Viewer, when a competent witness on trial in court.</p> <p>1. In an action against a railroad company for damages done to a mill property by the construction of the road, the injury to the unused and surplus water-power of the plaintiff is a legal ground of claim, and the measure of dama ices is its actual market value for any useful purpose, the mill property remaining as it was when the road was constructed; hence, evidence as to the power that could be gained by erecting a new dam further down the stream, making a shorter race and other alterations, was irrelevant and inadmissible.</p> <p>2. The admission of evidence that the company had offered to repair the damages and remove the inconveniences caused by tho construction of the road, is immaterial, where tho jury were instructed in the charge, that as the work was never done, the injuries complained of wore a proper subject of compensation.</p> <p>3. It is not a valid objection to a witness, that he had been a viewer, especially where he was instructed by the court that he must speak from his own knowledge and not give any opinion founded on evidence, heard as a viewer : nor that the road was not completed when his examination was made, the location not having been changed from that which was then pointed out in the presence of the parties: nor that, in continuation of his evidence in chief, ho was permitted to testify as to what was pointed out to him, as to where the line was to run and the road to be constructed, and how the premises were damaged, before he had been cross-examined as to the mode in which his opinion was formed, for tho cross-examination was out of time.</p>

<p>Construction of will.— Object of gift expressed in will not equivalent to a condition.</p> <p>A testate, after bequeathing an annuity to his wife for her support, in lieu of dower, directed his executors to allow her, during widowhood, a further sum per annum, to be paid in the same manner and at the same time with the yearly annuity, in addition thereto, “for house-rent</p> <p>Held, (1.) that the bequest of the additional annuity was absolute, dependent only on the condition of widowhood.</p> <p>(2.) That the clause describing the object of the gift was not a condition subsequent to the bequest of the annuity so as to defeat it, when, and for so long as, the widow ceased to be a housekeeper.</p> <p>(3.) That the widow was entitled to the additional annuity so long as she remained the widow of the testator, though she did not keep house and was not therefore obliged to pay rent.</p>

<p>Conditional appropriation to a judgment by auditors, effect of on scire facias by plaintiff, j</p> <p>_ A conditional appropriation by an auditor to a judgment-creditor in the distribution of proceeds of a debtor’s real estate, will not prevent the reviving of the judgment for the whole amount, where no money has been actually received upon it, and the conditions attached to the appropriation have not been fulfilled.</p>

<p>Error, to the Common Pleas of Clearfield county.</p> <p>This was a second trial of the case reported in 7 Wright 260, the judgment of the court below having been reversed, and a venire de novo awarded.</p> <p>Eor a full statement of the facts of the case (which are very voluminous), the is reader is referred to the report above mentioned.</p> <p>The second trial was conducted by the court below, on the legal principles enunciated by this court in reviewing and reversing the former judgment, and resulted in a verdict and judgment in favour of the defendants.</p> <p>The plaintiff thereupon sued out this writ, assigning for error the ruling of the court below in the following matters, viz.:—</p> <p>1. The court erred in negativing the 2d point of the plaintiff, to wit: “ If, after the sale of 25th June 1849, Mason attorned to and took possession of the land under Du Bois, that such possession was distinct and unequivocal; that Du Bois paid the taxes from 1850 to 1860; that Mason improved the land, and Du Bois exercised ownership over it, and that Batdorf knew these facts; that Leonard communicated the fact of the sale to Batdorf, his principal, and that Batdorf never challenged the possession of Du Bois; that Bassler knew of the sale and the possession, and neither of them disputed said possession, nor paid any taxes, then these facts, with the authority given to Leonard by the letter of 27th May 1846, amounted to an acquiescence in the possession of Du Bois; and had possession and right of possession when intruded upon by the defendants — the error consists in denying that acquiescence, by a vendor, in the possession of his vendee, peaceably acquired (when the contract is silent), is sufficient to bind the vendor.”</p> <p>2. In instructing the jury to find for the defendants, in that, first, the plaintiff had the possession; was intruded upon by the defendants, and was in law entitled to a restoration of that possession, without regard to the equities arising under his contract; and, second, upon the whole case (all the facts being admitted to be with him), he was entitled to the possession.</p> <p>3. In negativing plaintiff’s 6th point, which was, that “ by the contract Du Bois was the vendee of Batdorf, and up to the date of the sale by Batdorf to Bassler he had not lost his rights by laches; and as by that act the vendor put himself in a position of inability to carry out the contract, Du Bois was not bound to seek him to tender him the money.”</p>