Volume 47 — Pennsylvania State Reports

<p> Liability of lot-owner for expense of erecting culverts in street laid out, but not opened. </p> <p>Under the Acts of Assembly relating to streets, &c., in the city of Philadelphia, the owners of lots bordering on a street laid out but never opened, are not liable for the expense of constructing a culvert therein.</p>

<p> Will made in New Jersey, validity of to pass ground-rent in Pennsylvania. </p> <p>Whore a married woman, in execution of a power vested in her by a deed of trust, made in contemplation of marriage, comprising personal estate only; made her will in another state, but in the form required by the laws of Pennsylvania to pass her separate property, giving and bequeathing her “residuary estate” to legatees named, “ share and share alike, their heirs and assigns for ever,” Held, that Pennsylvania ground-rents, acquired by her subsequent to the date of the will, passed thereby to the legatees.</p>

Henry H. Muhlenberg filed a bill in equity against The Philadelphia and Reading Railroad Company, setting forth that he was the owner of two bonds of the defendants, issued in 1844, payable July 1st 1860, secured by a mortgage; that there was a stipulation in them that the holder, at any time before July 1st 1860, should be entitled to convert the principal sum into the capital stock of the company, at the rate of $50 for each share, on surrendering the bond with the…

This was an action of assumpsit, by Joseph B. Flanigen against The City of' Philadelphia, to recover an amount claimed to be due to him for publishing in the Daily News (of which he was the proprietor), a list of delinquent tax-payers for the year 1860, in which, under the ruling of the court, there was a verdict and judgment in favour of the plaintiff. The facts of this case are fully stated in the opinion of this court.

<p>Error to the Common Pleas of Schuylldll county.</p> <p>This was a proceeding by Benjamin Hottenstine, to recover damages from the East Pennsylvania Railroad Company, for the land occupied and injury done to him by the location and construction of their railroad through his lands in Berks county. After the report of viewers was filed, the case was removed to Schuylkill county, where it was tried.</p> <p>Under the ruling of the court below (Ryan, P. J.), there was a verdict arid judgment in favour of the plaintiff. Whereupon the defendant sued out this writ, assigning for error the following portions of the charge of the court:—</p> <p>“ The value of the land ‘ appropriated’ is easily ascertainable. This is measured by the custom or common dealing of the country. The market value is measured by the price usually given for such land in the neighbourhood, &c. This is the necessary measure in order to avoid the favouritism or oppression that would attend any other measure. But in a case like the present, where the land taken,, and through which the railroad is located, is used for farming purposes, when you come to ascertain the actual damages, you are not confined to the land actually appropriated, but you must inquire and compare the attendant advantages and disadvantages.</p> <p>“ The true rule is, in estimating the damages, to make a fair and just comparison of the value of the whole tract through which the road passes, before and after the road is made. Is the property benefited, or is it injured ? If benefited by the road, the owner neither is nor ought to be entitled to any compensation whatever. If really injured, not a mere fanciful injury, compensation is to be given to the amount of the damages sustained by the owner.</p> <p>“In coming to these conclusions you may properly inquire what the property would sell for before and after the road is made, and in successful operation. You are required to take into consideration the advantages and disadvantages resulting to the owner in consequence of the making and opening of this road, and we cannot doubt that the compensation is to be sufficient to cover all the damages actually sustained by the construction of the road, whether direct or consequential.”</p> <p>These instructions were alleged to be erroneous in these respects:—</p> <p>1. That the court instructed the jury in effect, first, to allow the market value of the land actually taken, and in addition thereto to, to weigh and “ compare the attendant advantages and disadvantages” as against each other, instead of instructing them to estimate the damages in view of the value of the land taken, and the other disadvantages, and to deduct from the whole the advantages.</p> <p>2. In referring the jury to the market value of the land actually taken as the mode of determining its value, and in immediate connection instructing them as to the mode of ascertaining the “ attendant advantages and disadvantages,” that they “ might inquire what the property would sell for before and after the road is made,” &c.; thereby implying that the jury were not necessarily confined to this standard, even in determining upon the comparative advantages and disadvantages, and thus leaving it optional with the jury to adopt any other standard or measure of damages their imaginations might suggest.</p>

<p>Nuncupative vnU, how established.</p> <p>1. A nuncupative will cannot be established, where neither the words nor their substance, as used by the alleged testator, were committed to writing by any one, as proof of a bequest or to be preserved as such, and no proof was made of a request by testator to bystanders to bear witness that the words used were his will.</p> <p>2. A letter written by one person, announcing to another the death of the alleged testator, and in a general way his disposition of his estate, is not such evidence as will make out a nuncupative will, especially where it was neither produced before the register’s court nor proven to have been lost or destroyed; nor is a fragment of an unsigned letter, by the same witness, written two days after the testator’s death, sufficient where no testamentary words were used nor the disposition of his property set forth, but only that he had left his property to his wife.</p>

<p>Appeal from the District Court of Philadelphia.</p> <p>This was an appeal by Christian Schnepf, from the decree of the court dismissing exceptions filed by him against the confirmation of the report of the auditor appointed to distribute the proceeds of the sheriff’s sale of real estate, sold on an alias levari facias, at the suit of Christian Schnepf, assignee of the Falls of Schuylkill Building and Saving Fund Association, against Henry Becker, defendant, and John P. Persch, terre-tenant.</p> <p>The facts of the case, as reported by the auditor, were these :—</p> <p>The execution was issued on a judgment obtained by a scire facias on a mortgage given by Henry Becker, the defendant, to the Palls of Schuylkill Building and Saving Pund Association, to secure the payment of his bond for $2000. The association was incorporated in 1851, and the mortgagor was a member of it, and a subscriber to ten shares of its stock. Each share entitled him to a loan from the association of $200, and on his ten shares he obtained a loan of $2000, on the 14th of May 1855, for which he paid a bonus of $150. On the same day he gave his bond to the association for $2000, bearing 6 per cent, interest, payable on the second Tuesday in every month. The principal was made payable within three years. To secure this debt with its interest, he executed the mortgage above mentioned, bearing even date with the bond, and at the same time assigned his ten shares of stock to the association as collateral security, which he was required to do by its rules. The rules also required that he should pay an instalment of $1 per month on each share of this stock, which he continued to do until the month of August 1860, inclusive, at which time he had paid $109 on each share, making $1090 in all. His payments of interest on his bond amounted in the aggregate to $650, which was in full to the 14th of August 1860.</p> <p>On the 21st of November 1859, John P. Persch obtained a judgment against Becker for $650. On the 6th of October 1860, Becker executed a second mortgage of the same and other premises, to secure the payment of his bond for $20,000, to the Herman Association, No. 3. On the 23d of October 1860 Persch obtained another judgment against him for $1200. Both judgments were liens on the mortgaged premises. On the 9th of December 1861, a,fi. fa. was issued on the latter judgment, under which all the real estate included in the two mortgages was levied on and condemned.</p> <p>On the 1st of May following Becker executed to Byron Woodward, Esq., an assignment of his ten shares of stock in the association, “ and all moneys paid by him, or on his account, to the association as dues and fines” on the said stock, and, by the same instrument, authorized its transfer on the books of the association, to the said Woodward, “to the end that he may become the absolute owner thereof, and entitled to all rights and privileges connected therewith.” Mr. Woodward is Schnepf’s counsel in this case. On the 10th of the same month the association assigned Becker’s bond and mortgage to Schnepf, for which they received from him the principal sum of $2000, and $230 as arrearages of interest. They subsequently transferred Becker’s stock to Mr. Woodward, who holds a certificate for the same, which they assigned to him, and which bears no date. 'The assignment of the mortgage was recorded on the 14th of May 1862.</p> <p>Prior to the assignment of the bond and mortgage to Schnepf, Becker executed to Schnepf an instrument under seal, whereby he declared that he had no set-off at law or in equity to the said bond and mortgage, and’in consideration.of the sum of $1, covenanted that the whole sum, with lawful interest, was due and payable by him and his heirs and assigns. This instrument bears date the 7th of May 1862.</p> <p>On the 1st of September 1862, the mortgaged premises w'ere sold under Persch’s judgment of the 23d of October 1860, and bought by him at sheriff’s sale, for $150, subject to Becker’s mortgage. The second mortgage (to the Herman Association) was satisfied of record on the 21st of April 1863.</p> <p>On the 17th of November 1862, Schnepf issued a scire facias on the mortgage assigned to him, and took judgment against Becker for want of an affidavit of defence, on the 20th of December following. This judgment was opened on the 5th of January 1863, on the application of Persch, who was admitted to defend as terre-tenant, and pleaded unon est factum, nil cleiet, and payment with leave,” &c. On the 16th of April 1863 judgment was entered against Becker for want of a plea, and a verdict rendered for the plaintiff for $2306 against Persch, as terre-tenant. Judgment was entered on this verdict May 19th 1863, under which the premises were sold by the sheriff on the 1st of August folloAving, and bought by Persch for $3950. Out of the proceeds of this last-mentioned sale Schnepf claimed to be paid the amount of his judgment with interest to the day of sale, being $2347.50.</p> <p>But the Accommodation Saving Fund and Building Association, No. 3, hold a mortgage on the same premises and other real estate, executed to them by Persch, on the 20th of April 1863, to secure the payment of his bond of the same date for $23,200. They objected to the claim of Schnepf, on the ground that the sum actually due on the mortgage assigned to him was considerably less than the amount of his judgment, and they asked the auditor to deduct from it the bonus paid by Becker for the loan, together with the payments made by him on his ten shares of stock, up to the date of the assignment of his bond and mortgage to Schnepf, by the Falls of Schuylkill Association.</p> <p>The auditor (Charles Gibbons, Esq.) stated Schnepf’s claim thus:—</p> <p>Loan to Becker, deducting bonus (May 14th</p> <p>1855), . $1850.00</p> <p>Interest to August 3d 1863, $923.15</p> <p>Credit interest paid, . 650.00 273.15</p> <p>$2123.15</p> <p>By payments on ten shares of stock from July ’51 to August ’60, at $109, . $1090.00</p> <p>Interest from July 1851 to August 1863, average six years, .... 392.40 $1482.20</p> <p>To balance due, .... 640.75</p> <p>And the fund will be distributed as follows:—</p> <p>Fund in court, ..... $3848.75</p> <p>Expenses of audit:</p> <p>Advertising in North American, . $18.59</p> <p>Advertising in Legal Intelligencer, . 5.00</p> <p>Prothonotary’s commissions and fees for certificate, 5 checks, &c., $47.61, less certificate paid by auditor, 75 cents, 46.86</p> <p>Auditor’s fee, $150, certificate, 75 cents, 150.75 221.20</p> <p>Balance, ..... $3627.55</p> <p>Distributed as follows:—</p> <p>To the city of Philadelphia, taxes for 1862, 1863 (no claim presented).</p> <p>To Christian Schnepf, . . . $640.75</p> <p>To the Accommodation Savings and Building Association, No. 3, to be credited on Persch’s bond and mortgage on account, ......$2986.80 $3627.55</p> <p>To this report B. Woodward, attorney for Schnepf, filed the following exceptions : — •</p> <p>1. The auditor erred in not reporting the fact that the judgment held by Persch v. Becker for $650 was fully paid out of the proceeds arising from the sale made under the execution under which he, Persch, bécame the owner of the mortgaged premises in question; also $134.83 was paid on the judgment of $1200.</p> <p>2. The auditor erred in deciding that the payment of dues on the stocks of Becker were payments on the mortgage debt, and reducing the same pro tanto.</p> <p>3. The auditor erred in deciding that the judgment against the mortgagor, and the verdict and judgment against John P. Persch, the terre-tenant, were not conclusive on the Accommodation Building and Saving Fund Association, No. 3, who were Persch’s mortgagees.</p> <p>4. The auditor erred in deciding that said association had a right to claim a reduction of the judgment against Becker and Persch, to the extent of the amount of dues paid by Becker on the ten shares of stock, and the premium paid by Becker for the loan.</p> <p>5. The auditor erred in not awarding to the plaintiff the full amount of his judgment against John P. Persch, with interest thereon to the time of sale, to wit, the sum of $2347.50.</p> <p>January 23d 1864. The court below dismissed the exceptions and confirmed the report absolutely, but without giving any opinion thereon, as plaintiff’s counsel asked to have the matter disposed of, in order that it might be brought before the Supreme Court at this term.</p> <p>The errors assigned here were,</p> <p>1. The court below erred in dismissing the exceptions filed to the report of the auditor, and confirming the report absolutely.</p> <p>2. In not deciding that the judgment against Becker, the mortgagor, and the verdict and judgment against the terre-tenant, were conclusive as against the terre-ten'ant’s mortgagees in respect to the amount due the plaintiff in error.</p> <p>3. In deciding that the mortgagees of John P. Persch, the terre-tenant, were entitled to have the judgment against the terre-tenant reduced to the extent of the premium paid by Becker for the loan, notwithstanding the plaintiff was a bond fide purchaser of the mortgage for a full consideration, without any knowledge or notice of any premium having been paid for the loan, and he having obtained from the mortgagor, before he purchased the mortgage, a declaration of no set-off or defence to the mortgage debt.</p> <p>4. In deciding that said mortgagees of the terre-tenant were entitled to have said judgment reduced to the extent of the payment made by the mortgagor on the ten shares of stock assigned to Mr. Woodward, notwithstanding the plaintiff in error was a bond fide purchaser for full value, without notice or knowledge that his assignors ever held said stock as collateral security, and notwithstanding the mortgagor had refused to apply the payments on the stock in reduction of the mortgage-deht before the plaintiff in error purchased said mortgage.</p> <p>5. In not overruling the report of the auditor, and awarding to the plaintiff in error the amount of his judgment against the terre-tenant, to wit, $2347.50, according to the alternative report of the auditor.</p>

<p>Certificate from tbe Court at Nisi Prius.</p> <p>This was a proceeding founded on a bill in equity, filed in the Supreme Court by John It. Brinham and George W. Brinham, who were stockholders in the Wellersburg Coal Company, and John D. Roddy, their assignee, against The Wellersburg Coal Company and Isaac C. Reeves, Joseph W. Souder, Robert Houston, Ferdinand C. Manderson, Charles H. Walker, and Robert McClelland, who were also stockholders in said company.</p> <p>The bill alleged the organization and incorporation of the Wellersburg Coal Company, in the year 1855, under the Act of April 7th 1849, and the supplements thereto, and that the company’s place of business was in Somerset county, Pennsylvania.</p> <p>“ That the complainants, the Brinhams, are and have been since the organization of the company, stockholders therein, holding together as partners eleven hundred shares of the stock.</p> <p>“That said Brinhams were, during the years 1855, 1856, and 1857, carrying on business as partners at Wellersburg, in Somerset county, and during those years furnished to said company machinery, provisions, merchandise, country produce, and materials, to the amount of $1945.61, a statement of which was annexed to the bill. That during the same time they, under an agreement with the company and certain labourers employed by the company, paid and advanced a large amount of money to said labourers foi* debts due to them by the company, and became the assignees of their claims, the said Brinhams to stand in the same position, and have the same rights respecting said claims as said labourers, which payments and advances amount to the sum of $10,492.65, a statement of which was annexed to the bill.</p> <p>“ That during the years 1856, 1857, and 1858, said company paid to said Brinhams, and for them, various sums of money, and furnished them with certain goods, for which credit was given the company, amounting to the sum of $9083.10, a statement of which was also annexed; and that the balance due, after allowing said credit, was $3355.16, which is still unpaid.</p> <p>“ That suit was brought on said claims, to the use of complainant Roddy, against the company, in the Court of Common Pleas of Somerset county, and on the 18th of August 1859, judgment obtained thereon. That an execution was issued on said judgment, but no property of the company could be found to satisfy it.</p> <p>“ That the company was indebted to E. C. Tilson for labour performed by him during 1855, 1856, 1857, and 1858, for which suit was brought in said Common Pleas of Somerset county, against said company and certain of the stockholders thereof, and on the 13th of November 1860, judgment was obtained thereon for $1189.61 against said company, and said Brinhams as stockholders, they being the only stockholders residing in that county; and that no property of the company being found to satisfy said judgment, said Brinhams were compelled to and did pay the same.</p> <p>“ That said company was indebted for materials furnished to said company during the same years, to Barney Dilly in the sum of $81.32, to J. W. Magruder -in the sum of $54.17, and to E. W. Hall in the sum of $86.10, and had no property by which said claims could be paid; that the stockholders were individually liable for said debts, and said Brinhams, being the only stockholders in said Somerset county, where said debts were contracted, paid the same to avoid suit and to save costs.</p> <p>“ That defendants have been since the organization of said company, and are still, the owners of stock therein as follows: Isaac C. Reeves, fifteen hundred shares; Joseph W. Souder, twelve hundred and ninety-seven shares; Benjamin K. Souder, two hundred shares; Robert Houston, fifteen hundred shares; Ferdinand C. Manderson, Charles II. Walker, and Robert McClelland, one share each, and are all the stockholders known to complainants, not having possession of the books of the company nor access to the same. Praying that discovery may be made of the names of all the stockholders since the organization of the company, how much stock by each held, when obtained, and if disposed of, when, and that complainants may be at liberty to insert the names of such other stockholders when discovered, as defendants in said bill.” “ '</p> <p>Complainants then charged that the defendants, stockholders of said company, are jointly and severally liable, in their individual capacities, for the indebtedness of said company to said Brinhams, above set out, and are liable to contribute their proportions towards payment of the same, in proportion to the amount of stock held by them respectively, and are also liable to contribute their said proportions towards repayment of the amounts paid by said Brinhams, as aforesaid, for said company.</p> <p>That said Brinhams have assigned to said John D. Roddy their said claims against said company, and the stockholders thereof.</p> <p>A subpoena issued upon this bill, and was returned nihil halet as to Robert Houston, and mortuus est as to Robert McClelland. The other defendants, Isaac C. Reeves, Joseph W. Souder, Benjamin K. Souder, FerdinandC. Manderson, and Charles H. Walker, who were served, demurred to the bill, and for cause of demurrer alleged—</p> <p>1. That complainants have not, in and by their bill, made or stated such a case as entitles them to any such discovery or relief as is thereby sought and prayed for from or against these defendants; and</p> <p>2. That if any cause of action whatever against these defendants be stated in their bill, the same is. given to complainants by the statute law of this Commonwealth, and does not exist either by virtue of the common law or in equity, and that by the same statutes a full, complete, and adequate remedy is provided for the enforcement of the rights thereby created.</p> <p>On the 27th June 1863, a decree was entered in the suit that the demurrer be allowed, and that the complainants’ bill be dismissed with costs; which was the error assigned.</p> <p>June 27th 1863. On the suggestion of the judge at Nisi Prius, it was agreed that complainants may appeal to the Supreme Court in banc, without affidavit or recognisance of bail.</p>

<p>Error to the Common Pleas of Tioga county.</p> <p>This was an action of assumpsit, by Lester Wilcox, George T. Perry, and John Ecker, partners, trading as Wilcox, Perry & Ecker, against Joseph H. Hoard, Joseph P. Morris, Dewitt C. Holden, James Lowry, William Bache, and Thomas L. Baldwin, stockholders of the Mansfield Iron Works, to recover the amount of a bill of merchandise, bought by the treasurer of the company in 1855.</p> <p>The company was organized in 1854, under the General Manufacturing Law of 1849, and its supplements. Mr. Hoard, who had been duly elected treasurer of the corporation, was authorized, by resolution of the board of directors, to purchase in New York merchandise for the hands. The goods for which this suit was brought were accordingly purchased by Mr. Hoard, who gave his note as “ treasurer of the Mansfield Iron Works,” for the amount. The goods were shipped to Mansfield, Tioga county, where they were disposed, of in paying the hands for their labour.</p> <p>Previous to the bringing of this suit, an action had been brought on the note above mentioned, against “ The Mansfield Iron Works,” and service made on the president of the company. Judgment having been obtained for want of an affidavit of defence, execution was issued, under which the Mansfield Iron Works were sold for $1130 to James Lowry, one of the defendants, who was then president of the company.</p> <p>There was a mortgage and other liens prior to the one above mentioned. On the trial it appeared that none of the purchase-money had been paid by Mr. Lowry, as sheriff’s vendee, that no deed had been made or acknowledged to him by the sheriff, and that at the instance of one of the stockholders (Mr. Bache), a rule had been entered to show cause why the sheriff’s sale should not be set aside, which was then pending, and undetermined.</p> <p>There were originally seventeen stockholders, three of whom were deceased, and four beyond the jurisdiction of the court, when the writ in this case was sued out.</p> <p>Only six of the stockholders were included as defendants, and the Mansfield Iron Works was not joined as co-defendant.</p> <p>On the trial of the cause the plaintiffs proposed to prove the insolvency of the Mansfield Iron Works, by showing numerous judgments against them prior to the judgment given in evidence in favour of the plaintiffs, upon which the property was sold, which judgments, in favour of Tabor, Baldwin & Co., and others, and a mortgage, amounted to a much larger sum than the property of the company sold for; that those judgments were entitled to the money, if any had been realized, but that there was no money raised on said sale; that a rule was obtained in this court to set aside the same, which is still pending, and not determined; and that no deed had been executed and delivered by the sheriff to the purchaser.</p> <p>Defendants’ counsel objected to the evidence offered, for the reason that the existence of judgments prior to plaintiffs’ judgment against the Mansfield Iron Works, would not show the insolvency of said company; and because the insolvency of the said company was not a question relevant in this cause; and because the record already given in evidence by the plaintiffs, showed their judgment against salid company, for the same claim now sued on to have been fully paid. And for the further reason, that it was immaterial whether the money was paid upon the bid referred to, as the sheriff was liable upon his return.</p> <p>The court overruled the objections, and admitted the offer.</p> <p>The plaintiffs requested the court to charge the jury,</p> <p>1. That in order to recover a judgment against the defendants, stockholders in the Mansfiejd Iron Works, it is not necessary for plaintiffs to show that the said company is entirely insolvent, for the court can control'the execution, to prevent any portion of the judgment being collected from the defendants until the whole assets (if any) of said company are exhausted.</p> <p>2. If the jury believe, from the evidence, that the purchase-money or bid of James Lowry on the sale of the real estate of the Mansfield Iron Works, given in evidence, has not been paid over to the sheriff, or, if paid over to the sheriff, would apply on other prior liens against said company, and not on the plaintiffs’ judgment against them, then the sale of property on said judgment would not satisfy it, nor any part of it, and will not prevent a recovery in this suit.</p> <p>3. If they believe all the evidence in this case, the Mansfield Iron Works was insolvent before the plaintiffs recovered a judgment against the company, and that there were judgments and mortgages against them prior to the plaintiffs’, more than enough to absorb all the assets of the company, and leave nothing to satisfy plaintiffs’ claim.</p> <p>4. That this action is in proper form against a portion of the stockholders of the Mansfield Iron Works; and if, from the evidence, the jury believe that the claim of the plaintiffs is for merchandise sold said company through their agent, J. S- Hoard, the plaintiffs have a right to recover for the value of that merchandise against the defendants, with interest from the time of payment agreed upon; or if no time of payment was agreed upon, then from the time of the sale of the goods as appears from plaintiffs’ books.</p> <p>5. If the jury believe that the note made by J. S. Hoard for the Mansfield Iron Works, given in evidence, was given for merchandise sold said company, then the plaintiffs have a right to recover a judgment in this suit for the amount of said note, and interest at 7 per cent, per annum ; and that the judgment on the said note against said company is evidence of J. S. Hoard’s authority to make it for the same.</p> <p>The defendants also requested the court to charge,</p> <p>1. That the liability of stockholders rests upon a statute, not upon any voluntary act or assumption of their own; and'that it is incumbent on him who seeks to avail himself of the liability so created, to proceed, in accordance with such statute, against all the stockholders jointly, or against one or more of them severally.</p> <p>2. That the articles of incorporation referred to in the plaintiffs’ narr., and given in evidence by the plaintiffs, showing the stockholders to be seventeen in number, and plaintiffs’ evidence showing all hut three of them to be alive, and all but four of those living to be resident within the jurisdiction of the court, and jointly liable with defendants, tb,e plaintiffs cannot recover against those sued in this case.</p> <p>3. That the return of sale by the sheriff, on writ of venditioni exponas, in No. 151, of February Term 1857, for an amount more than sufficient to pay the same, is satisfaction of said judgment in law, and extinguishes the plaintiffs’ cause of action in this case.</p> <p>4. That the directors of said Mansfield Iron Works are agents of the stockholders and the corporation; and as such their acts are binding upon their principals only when within the scope of their authority; that the resolution authorizing the purchase of a general stock of goods was unauthorized by the articles of incorporation, and therefore imposed no liability on the corporation or the stockholders.</p> <p>5. That the plaintiffs not having joined the said corporation with the defendants in this case, cannot recover.</p> <p>6. That under all the evidence in the case, they are not entitled to recover.</p> <p>The learned judge of the Common Pleas, after quoting the Act of 1849, and its supplements, so far as they related to the liability of the stockholders of such corporations, proceeded to charge the jury as follows :—</p> <p>“ The defendants deny that they are liable for the merchandise purchased by J. S. Hoard. These purchases were made under and in pursuance of a resolution of the board of directors of the company, and the goods were used for the benefit of the company. The denial of liability is based upon the position that ‘ the directors are agents of the stockholders and corporation ; that their acts are binding upon their principals- only when within the scope of their authority; and that the resolution of the board of directors, directing the purchase of a general stock of goods, was unauthorized by the articles of association, and imposed no liability on the corporation or stockholders.’</p> <p>“ The powers conferred upon manufacturing companies by the Act of 1849 and its supplements, are designed to be exercised by directors elected by the stockholders. The 4th section of the Act of 1849 provides that ‘their stock, property, and affairs shall be managed by not less than five, nor more than thirteen directors,’ and prescribes the mode in which they shall be elected. The 3d section of the same act defines the authorities and privileges granted — making them ‘bodies politic and corporate, in law and in fact,’ ‘having succession,' and capable of suing and being sued, by their corporate names, and capable in la-w of purchasing, holding, and conveying any real or personal estate whatever, necessary and convenient to carry on the business or operations for which they are formed.’' That such corporations can purchase merchandise on credit is implied by the section of the Act of 1854 which limits and defines the individual liability of the stockholders: for, among other things, it subjects them to liability for debts due for merchandise. It is not alleged that they would be liable for goods purchased by the directors for the purpose of carrying on the business of merchandising, separate and disconnected from the business authorized by their charter. It was not the object or intention of the directors of the Mansfield Iron Works to transact a general mercantile business. The evidence shows that their sales were made principally to their labourers and employees, upon orders drawn by their manager. The primary object of their purchases being to supply their own operatives, it would be a severe and unjust judgment upon their creditors to hold that, because every article of goods purchased had not been thus disposed of, the directors had therefore exceeded their powers, and no recovery could be had against the stockholders for merchandise thus purchased.</p> <p>“ You are therefore instructed that the directors of this company, in the adoption of the resolution authorizing the purchase of goods, acted within the scope of their authority; and that the purchase of the goods and appropriation of them to the use and benefit of the company, imposed upon the stockholders and corporation the. liability to pay for them.</p> <p>“ This suit is brought against a portion of the stockholders only. The articles of association, given in evidence, show that the whole number of stockholders was seventeen. Of these, three are dead, and four not resident within the jurisdiction of the court. Of the remaining ten, six only are sued. On behalf of these it is contended that all ought to have been joined in one suit; or that they ought to have been sued severally. It is also contended that the corporation ought to have been joined in this suit.</p> <p>“ If, instead of bringing suit and recovering judgment against the company alone, the plaintiffs had brought suit against the company and the six stockholders, who are defendants in this suit, it is very obvious that there could have been no valid objection to their recovery, on the ground of non-joinder of the other stockholders. The 23d section of the Act of 1849 expressly authorizes suits to be brought against a company, and any one or more of its stockholders, to enforce any liability under the provisions of the act. But the plaintiffs had recovered a judgment against the Mansfield Iron Works for the whole amount of their claim before this suit was brought against these stockholders ; and there could not have been a recovery against the company in another suit, for the same debt. It was not necessary, and would not have been proper to have joined the company as defendant in this suit. Nor is it necessary in any case. The 23d section provides that the plaintiff may join as defendants with Jhe company one or more of the stockholders — implying that he may, if he sees fit, bring a separate suit against the stockholders; or, as the law makes their liability joint and several, may bring separate suits against each stockholder. The corporation is the principal debtor. The liability of the stockholders is only secondary. The form of the remedy and character of the right, under the Acts of Assembly, allow the use of separate actions against the primary and secondary debtors.’ See Patterson & Co. v. The Wyomissing Manufacturing Company, 4 Wright 117. But this objection to a recovery by plaintiffs, on the ground of a non-joinder of the company and of all the stockholders as defendants, if a valid and legal objection under a proper issue, cannot be taken advantage of under the issue in this case. The general rule is, that in an action ex contractu against one or more of several obligors or contractors, an omission to join others as defendants who are also liable, can only be taken advantage of by a plea in abatement. The issue in this case is formed by pleas of non assumpsit, payment with leave, &e. It is alleged by the defendants that the liability of the stockholders is joint and several; that the plaintiffs not having brought separate or several suits, have treated the liability as joint; and that having omitted to join as defendants all who are made liable under the law, cannot recover against those who are sued. To this plaintiffs reply, You can take advantage of this defence only by plea in abatement. You have plead the general issue, and thus precluded yourselves from making this defence available.’ The court regard this as a conclusive answer to defendants’ position on the subject of non-joinder of other parties as defendants, who were jointly and severally liable with the six stockholders against whom this suit was brought.</p> <p>“ The defendants make one other point in this case. They allege that £ the return of sale by the sheriff, on the writ of venditioni exponas, in No. 151 of February Term 1857, for an amount more than sufficient to pay the same, is satisfaction of said judgment in law, and extinguishes plaintiffs’ cause of action in this case.’</p> <p>“ It is true that the amount bid by Mr. Lowry for the property of the company, sold upon this venditioni exponas ($1130), if applicable to plaintiffs’ judgment against the company, would satisfy it, and thus discharge the liability of the defendants in the suit now trying. But the difficulty in sustaining the point is, that the bidder has never paid any .portion of his bid to the sheriff; and a rule is now pending in this court to show cause why the sale shall not be set aside, based upon the ground that the bid has not been paid. The evidence shows, too, that there are judgments for a large amount unsatisfied, upon the records of this court, entered against the Mansfield Iron Works — having priority of lien over plaintiffs’ judgment — sufficient to absorb all of Mr. Lowry’s bid for the property, and a good deal more, as soon as it is paid. Under the facts disclosed, we charge you, that the return of sale upon the writ referred to is not a satisfaction of plaintiffs’ judgment against the Mansfield Iron Works, nor an extinguishment of plaintiffs’ cause of action in this suit.</p> <p>“ Upon plaintiffs’ 1st and 3d points the court charge that it was not necessary for plaintiffs to show that the Mansfield Iron Works was insolvent, in order to recover judgment against defendants. Plaintiffs’ 2d point is answered fully in the general charge.</p> <p>“ Upon plaintiffs’ 4th point the court charge that the action is in proper form against a portion of the stockholders, under the issue now trying; and that plaintiffs, under this issue, have a right to recover the value of the merchandise sold said company through their agent, J. S. Hoard, with interest, after six months, at 7 per cent., as shown by their books, and the evidence of F. E. Young.</p> <p>“Upon plaintiffs’ 5th point the court charge that, if the jury believe that the note made by J. S. Hoard for the Mansfield Iron Works, was given for merchandise sold said company by plaintiffs, the said plaintiffs have a right to recover in this suit the amount of said note, and interest at 7 per cent, per annum from the 17th day of April 1856 ; and that [the judgment on said note against said company is evidence of J. S. Hoard’s authority to make it, in connection with the evidence proving that he purchased the goods in pursuance of authority conferred by a resolution of. the board of directors of the company, and other evidence in the cause.”]</p> <p>Under these instructions there was a verdict and judgment in favour of the plaintiffs. Whereupon the defendants sued out this writ, and assigned for error the following matters, viz.:—</p> <p>1. The admission of the evidence offered by plaintiffs to prove the insolvency of the Mansfield Iron Works.</p> <p>2, 3, 4. The refusal of the court below to charge as requested in defendants’ 1st, 2d, 3d, and 4th points. And,</p> <p>5. The instruction given relative to the effect of the recovery of the judgment on the note, as printed above in brackets.</p>

<p>Error, to the Common Pleas of Lycoming county.</p> <p>This was an action of assumpsit, brought by David M. Bilger, for the use of W: F. Reynolds & Co., against Peter Herdic.</p> <p>The plaintiff declared on a promissory note, of which the following is a copy:—</p> <p>“ Williamsport, April 1st 1859.</p> <p>“ $2000.</p> <p>“Four months after date I promise to pay D. M. Bilger two thousand dollars, at the West Branch Bank, at Williamsport, without defalcation, for value received.</p> <p>(Signed) “Peter Herdic.”</p> <p>Endorsed: “ D. M. Bilger.</p> <p>“ Cr. our acc’t. W. F. Reynolds & Co.”</p> <p>To which the'defendant pleaded wow assumpsit, set-off, payment with leave; and the plaintiff replied generally that defendant did assume, had not paid, and had no set-off.</p> <p>On the 6th of November 1858, Peter Herdic and David M. Bilger entered into the following agreement:—</p> <p>“ This agreement, made this 6th day of November, A. D. 1858, between David M. Bilger, of Ruth township, Centre county, Pennsylvania, of the one part, and Peter Herdic, of Williams-port, Lycoming county, of'the other part, witnesseth as follows: The said Bilger agrees to sell and deliver to the said Herdic four million feet of merchantable white pine saw-logs, board measure, the logs to be well butted, from four to eight feet being taken off the butt-end; at least half the above logs are to be pealed, and more if practicable. They are to be cut principally sixteen feet in length. The logs are to be cut on Meshannon creek, and said Herdic is to send a man at his own expense who is to say what logs are merchantable, and to scale the logs, and on being scaled and delivered on the bank of Meshannon creek, and in the creek, they are to be considered and to be the property of said Herdic; and the said Bilger also agrees to drive the said logs into the Susquehanna boom, as early in the spring of 1859 as the stage of the water will permit; and the said Herdic agrees to pay to the said Bilger, for the said logs and driving the same, four dollars and thirty-seven and a half cents per thousand feet, board measure, in manner following, to wit: one thousand dollars in hand at the execution of this agreement, one dollar and twenty-five cents on such quantity of said logs as shall be delivered on Meshannon creek, on the 1st day of March 1859, and the further sum of fifty cents a thousand on the 1st day of April 1859. The balance of the purchase-money of the logs shall be paid as follows: as soon as logs enough shall be rafted out of the Susquehanna boom to balance the advances made by said Herdic up to that time; the remainder of the logs shall be paid for by said Herdic as fast as they may be rafted out of said boom and scaled. The logs shall be so scaled, and by such a rule as to make the boards one inch and one-eighth in thickness; that is, this eighth of an inch is to be thrown in as an allowance for shrinkage.</p> <p>“ In witness whereof,” &c.</p> <p>After the logs were in the boom, viz., on the 22d of March 1859, the note in suit, and another of same date and amount, payable three months after date, were given by Herdic to Bilger, who thereupon gave the following receipt:—</p> <p>“Received, Williamsport, March 22d 1859, of Peter Herdic, twenty-seven hundred and forty dollars and nine cents; also, said Herdic to pay judgment on the Common Pleas docket of Lycoming county, in favour of Hood & Co., against me, due 15th of August next, for four hundred and thirty-eight dollars and sixty-four cents. Received also, two notes, dated April 1st 1859 ; one at three months for two thousand dollars, payable at the West Branch Bank, and the other of said notes for two thousand dollars, payable at the said bank, at four months from date, which, with the payments made heretofore, will be in full for thirty-eight hundred thousand feet, board measure, of white pine saw-logs, sold by me to said Herdic,'marked D. M. B., D. M. B. & Co., P. H., and J. E. S., on the end, to be scaled and delivered to him at the Susquehanna boom, at four dollars and thirty-seven and a half cents per thousand feet, hereby guaranteeing the quantity above stated to hold out, and in case the quantity falls short, the deficiency to be deducted from the said notes.”</p> <p>It was admitted by plaintiff’s counsel that the defendant had paid the Hood judgment mentioned in the receipt.</p> <p>The defence was, that the consideration for the note had failed; that when the logs were scaled (that is, measured) by the duly appointed scaler, there were but 2,827,558, leaving a deficiency of 972,442 feet, which, at $4.77 per thousand feet, amounted to $4259.43.</p> <p>Before the logs had been started for the boom, a portion of the logs had been scaled, but the witnesses who were examined on this point, were not agreed, some of them estimating the quantity at from sixteen hundred thousand to two millions, others at about three millions.</p> <p>On the trial the defendant offered to prove by one of his witnesses, that Bilger was insolvent in 1859, and that the plaintiff was not and could not have been injured by anything that was said or done by him in the presence of James T. Hale, who had been examined as a witness for the plaintiff.</p> <p>To this offer the plaintiff objected, and the court sustained the objection.</p> <p>The defendant also requested the court to charge the jury:—</p> <p>1. That the receipt of March 22d 1859, given by Bilger to Herdic, and the note upon which the suit is brought, being executed at the same time, and relating to the same transaction, are to be considered as forming part of a single agreement, and that, thus considered, their legal effect is, that in consideration that the defendant had given to the plaintiff the two notes mentioned for $2000 each, the plaintiff was bound to deliver at the Susquehanna boom three millions eight hundred thousand feet of white pine saw-logs, and that any deficiency in the delivery of the logs should be deducted from the amount of the notes at the rate of $4.37-| per thousand feet.</p> <p>2. That by the agreement, the logs were to be scaled and delivered at the Susquehanna boom, and that scaling the logs (that is, ascertaining the quantity thereof) was to precede the final delivery, and that as the parties had thus fixed the place and mode of ascertaining the quantity of logs to be so delivered, the quantity ascertained by the duly authorized scaler of logs at the boom, in the absence of evidence of clear mistake or fraud, is conclusive between the parties to this suit, and that there is in this case no such clear evidence of mistake or fraud, and that therefore the jury are bound to take the statement rendered by the scaler to the Boom Company, and sworn to here as being correct, and as conclusive evidence of the quantity of logs delivered by Bilger to Herdic, at the Susquehanna boom, under the agreement in question.</p> <p>3. That as the delivery of'the logs was to precede the payment of the notes, the burden of proof is upon the plaintiff to show performance on his part, and for any deficiency in the quantity of the logs which the plaintiff has failed to show that he delivered, the defendant is entitled to a deduction from the note in suit, at the rate of $4.37J per thousand feet; and if said deficiency, after allowing $2000 for the notes at three months heretofore tried, is equal to' the full amount of the note in suit, the verdict of the jury should be generally for the defendant.</p> <p>The court below (Jordan, P. J.), after stating the main facts of the case, charged the jury that the receipt changed somewhat the contract or agreement of November 6th 1858, and that it was competent for them to make any change which they saw proper.</p> <p>The 1st and 3d points of defendant were answered in the affirmative.</p> <p>The 2d point was disposed of as follows:—</p> <p>“By the agreement of November 6th 1858, Herdic was to find a man, at his own expense, who was to say what logs were merchantable, and to scale the logs, and on their being scaled and delivered on the bank of the creek, and as per agreement.</p> <p>“ That by the receipt of the 22d of March 1859, the logs were to be sealed and delivered to Herdic, at the Susquehanna boom, at $4.37J per thousand feet. This scaling and delivering were both necessary to entitle Bilger to recover from Herdic, and that the place for scaling is also fixed; and although it is not stated by whom the logs were to be sealed, when brought into the'boom, the officer appointed by the court for that purpose, under the act incorporating the company, would be the proper person, and in the absence of clear mistake or fraud, his scaling would be conclusive between the parties. But the court do not instruct you that there is no such clear evidence of mistake, and that therefore you are bound to take the statement rendered by the scaler as conclusive evidence of the quantity. If you are satisfied, from all the evidence in the cause, that a greater quantity of lumber Avas delivered in the boom than returned by the scaler, it seems to the court that it Avould be just, Bilger should have the benefit of it. The court have stated, you must be satisfied there Avas a mistake — satisfied from the evidence, that the measurement by the scaler is incorrect, to warrant you in deviating from it.”</p> <p>Under these instructions there was a verdict and judgment in favour of the plaintiff for $2396.66. Whereupon the defendant sued out this Avrit, and assigned for error—</p> <p>1. The answer given by the court below to his 2d point; and</p> <p>2. The rejection of the testimony relatiAre to the insolvency of Bilger in 1859.</p>

<p>Judgment of married woman, void except for purchase-money. — Revival of judgment executed by her before marriage, validity of.</p> <p>1. A judgment given by a married woman for a debt contracted for tho improvement of her real estate, is void.</p> <p>2. But a wife may agree to revive a judgment which was entered on a bond executed by her before marriage.</p> <p>3. An auditor may disregard a void judgment.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of covenant by Deborah Emlen against The Lehigh Coal and Navigation Company, in which the following special verdict was found by the jury :—</p> <p>“ The defendants are an incorporated company, under the Act of February 13th 1822,'and its supplements.</p> <p>“ The plaintiff on the 21st April 1810, lent to defendants the sum of $1900, on the terms set forth in the following certificate :—</p> <p> </p> <p>On the 12th October 1861, the defendants paid to William S. Vaux, the attorney in fact of the plaintiff, under a written power of attorney, executed at London, September 1861, the principal of said loan.</p> <p>“ That on the 3d December 1862, defendants paid to said Yaux, attorney as aforesaid, the arrears of interest on said loan, down to October 1st 1853.</p> <p>“ That said payments were made without prejudice to either party.</p> <p>“ That the plaintiff on the 1st October 1858 was absent from the United States, being somewhere in the central part of Europe, and had been absent from the United States for several years previously, and had no fixed residence in Europe.</p> <p>“ That the loan above referred to was made by the plaintiff through the said W. S. Yaux, as her representative.</p> <p>“ That the said Yaux, down to and on the 5th January 1842, had received from the defendants interest on the said loan, under a power of attorney, theretofore given by the plaintiff to one Bartholomew Wistar, which contained a power of substitution, and the said Yaux having been substituted for the said Wistar thereunder.</p> <p>“ That the said Wistar died in or about the year 1842.</p> <p>“ That subsequently thereto, and prior to October 12th 1861, the said Yaux demanded at the office of the defendant, interest on said loan, which had become in arrear since the prior payments thereof, which demand was refused, on the ground that the said Yaux had no proper power of attorney.</p> <p>“ That the said defendants, on and at all times after October 1st 1851, had in bank cash to their credit sufficient to pay the loan to said plaintiff, principal and interest, and all other accruing and payable debts of the said company, but that the said defendants did not keep the principal of said loan, or the interest thereof, separate and apart from the rest of their funds.</p> <p>“ That the said company had a known office at No. 122 south Second street, in the city of Philadelphia, when the said loan was created, and prior thereto and constantly thereafter, at which office all payments on their account were made by their officers.</p> <p>“That on the 15th September 1853, the following notice was published in the newspapers of the city of Philadelphia, to wit:</p> <p>“ Oerice or the Lehigh Coal and Navigation Co.</p> <p>Philadelphia, September 15th 1853.</p> <p>“Notice is hereby given, that the certificates of the Lehigh Coal and Navigation Company Loan, falling due on the 1st of October next, will then be paid on presentation of said certificates at this office: and notice is also given, that the interest on all certificates, so falling due, will cease on the 1st of October aforesaid.</p> <p>“By order of the Board of Managers.</p> <p>“ Otis Ammidon, Treasurer.</p> <p>“ That no personal notice was communicated to the plaintiff of the contents of said published notice.</p> <p>“ That no demand was made by the plaintiff upon the defendants for payment of principal or interest of said loan, other than as hereinbefore set forth.</p> <p>“ That no payments on account of said loan have been made to the plaintiff by said defendants, other than as hereinbefore set forth.</p> <p>But whether upon the whole matter aforesaid by the said jurors in form aforesaid found, the said defendants have broken the covenant as within supposed to be by them done, the said jurors are entirely ignorant, and therefore pray the advice and consideration of the court here, and if upon the whole matter aforesaid, by the said jurors in form aforesaid found, it shall appear to the court here, that the said defendants have broken their said covenant, then the said jurors upon their oaths and affirmations say, that the said defendants have broken their said covenant, and have not kept the same in manner and form as the said plaintiff within complains against them, and then they assess the damages of the said plaintiff on occasion of said breach of covenant, beyond her costs, and char-ged by her about her suit in this bohalf expended, at the sum of $>1004.04.</p> <p>“ And if upon the whole matter aforesaid, by the said jurors in form aforesaid found, it shall appear to the court here, that said defendants have not broken their said covenant as aforesaid, within supposed to be by them done, then the said jurors say upon their said oaths and affirmations, that the said defendants have not broken their said covenant.”</p> <p>On these' facts the learned judge, before whom the case was tried (Stroud, J.), delivered the following opinion:—</p> <p>“ The defendant corporation did not set apart, or in any way retain money specifically to pay either the principal of the loan by the plaintiff to the corporation, or the interest which is claimed. All that is found by the special verdict is, ‘ that the said defendants on, and at all times after October 1st 1853, had in bank cash to their credit, sufficient to pay the loan of said plaintiff, principal and interest, and all other accruing and payable debts of the said company, but that the said defendants did not keep the principal of said loan, or the interest thereof, separate and apart from the rest of their funds.’</p> <p>“ This is nothing more than could be said of any debtor of large means in respect to his business affairs. Money thus placed and kept in bank is entirely subject to the control of the depositor,, may be drawn upon by him at pleasure, and constitutes the source of general credit. It might also be attached in the custody of the bank to answer any claim or judgment against the company, whether that judgment had been recovered upon a contract, or on account of negligence or torts. All that the special verdict finds is, that the company ‘ had in bank cash to their credit sufficient to pay the loan of said plaintiff, and all other accruing and payable debts of the said company.’ They had no provision for the great risks to which they are continually exposed, of a destruction of their dams and canal, by which they had been brought to the brink of insolvency again and again, nor for the heavy verdicts which are often visited upon corporations for injuries to others, through the negligence of their numerous officials and other agents.</p> <p>“Nothing short of a setting apart specifically, for the benefit of their debtor, so as to be entirely beyond their own control, or subject, under any contingency, for their debts or other liabilities, ought to exempt them from a charge for interest accruing upon a loan.</p> <p>“Nothing short of this would satisfy the requirements of the law on the subject of tender, which is referred to by the court in Miller v. Bank of Orleans, 5 Whart. 503 and 505, as a proper test on a question like the present.</p> <p>“Fasholt v. Reed, 16 S. & R. 266, and Commonwealth v. Crever, 3 Binn. 121, which are cited by the court in Miller v. Bank of Orleans; Troubat v. Hunter, 5 Rawle 257; Martin v. Schaeffer, 9 S. & R. 263; and Hummel v. Brown, 24 P. S. R. 310, are authorities on the same point.</p> <p>“ Judgment for plaintiff on the special verdict.”</p> <p>The defendants thereupon sued out this writ, and filed the following specifications of error :—</p> <p>1. The court below erred in entering judgment on the special verdict in favor of the plaintiff below.</p> <p>2. The court below erred in not entering judgment on the special verdict in favour of the defendant below.</p>

<p>Appeal from the Orphans’ Court of Philadelphia.</p> <p>This was an appeal by Daniel L. Hutchinson, from the decree of the Orphans’ Court, confirming the report of the auditor appointed to audit, settle, and adjust the account of Bushrod W. Adams and Daniel L. Hutchinson, executors of the last will and testament of Mahlon Hutchinson. The facts of the case, so far as necessary for a proper understanding of this appeal, were these :</p> <p>Mahlon Hutchinson, the testator, died in March 1862, leaving a will dated February 14th 1852, and a codicil dated February 3d 1853, which were duly proved.</p> <p>Pie had five children living at the date of his will. After giving his household furniture to his two daughters Mrs. Sarah H. Adams and Phoebe Jane Hutchinson, who were then residing with him, with the privilege of remaining in his house for one year after his death, he added: “ I forgive each and all my children all my advancements, loans of money, and debts due from any of them to me, except the capital in the hands of my son Daniel, since lie entered into his present business of a broker, ■which is to be regarded by my executors as part of my estate.”</p> <p>He then gave one-fifth of his estate, real and personal, to his eldest son Daniel L. Hutchinson absolutely, and the remaining four-fifths to Daniel L. Hutchinson and his son-in-law, Bush-rod W. Adams in trust, to hold: 1. One-fifth for his son John P. Hutchinson; 2. One-fifth for his daughter Elizabeth Kintzing; 3. One-fifth for his daughter Sarah H. Adams; and 4. One-fifth for his daughter Phoebe Jane Hutchinson. In the codicil of 1857, Mrs. Adams having died, he devised her share in trust for her children, with one-third of the income thereof to their father for life, and gave the share of John P. Hutchinson to him absolutely, released from the trust, adding: “ and except so far as my will is hereby altered and modified, I confirm and ratify the same in all respects.”</p> <p>It appeared from the evidence before the auditor, that Mr. Daniel L. Hutchinson commenced business as a broker in 1844, and that before that time he had received certain sums of money from his father. His business of broker continued till 1853, and was going on at the date of the will.</p> <p>It appeared also that in and prior to the year 1844, Daniel L. Hutchinson had managed his father’s whole estate ; that he continued to do so until his failure in 1852; that as such general agent of his father he kept an account with him, crediting him with principal and income received, and debiting him with all outlays and expenses. The sums credited in this account to the testator are dividends, rents, and the principal of investments sold or paid off, but most of the debit entries are merely of cash, -without any explanation. The testator was credited from the very first with interest. As this account went on, the balance against the son rapidly increased, until January 1st 1862, when it amounted to the sum of $48,826.52.</p> <p>Soon after this date, which was about that of his failure, the agency was withdrawn from Daniel L. Hutchinson and handed over to Bushrod W. Adams. For the said sum with interest remaining unpaid, a bond with warrant of attorney was taken, dated April 17th 1854, and the amount of the debt which it mentions is $52,488, something less than the above-mentioned sum of $48,826.52, with interest from.January 1st 1862.</p> <p>The bond was taken from him at a period between the date of the will and the codicil. The whole amount of the testator’s personal property for distribution amounted to the sum of $213,224.24. If the debt of Daniel, which was to be treated as part of the estate, was that mentioned in the bond, and interest were added to principal, it would amount to over $80,000, which would exceed his distributive share of the estate.</p> <p>It was contended by the counsel of Daniel L. Hutchinson, that he was not, upon a true construction of the will, to be charged with that entire sum; that the bond included a large amount of interest; that the word “capital,” used by the testator, meant “principal;” that the principal alone would amount to but little more than $30,000, which when deducted from his share would leave something to be distributed to him.</p> <p>The auditor decided that the word “ capital” in the will, meant the aggregate of sums retained by Daniel L. Hutchinson from the moneys of his father in his hands from time to time, and used as “capital” in his business. He therefore charged him with the whole amount of the bond and interest from the time that he ceased to act as agent for his father, which exhausted his share of the estate.</p> <p>Accordingly the auditor divided the estate of the deceased into four parts, and distributed it to the other legatees. To this report exceptions were filed for the executors and accountants, as also for other persons interested in the estate, in accordance with which a supplemental corrected report was filed; but the decision relative to the indebtedness of Daniel L. Hutchinson, the propriety of adding it to the estate and dividing the assets into five parts, was adhered to. The Orphans’ Court confirmed this report, whereupon Daniel L. Hutchinson entered an appeal, averring that the court below erred in deciding:—</p> <p>1. That the estate must be divided into four parts, and not into five as directed by the testator.</p> <p>2. That Daniel L. Hutchinson was not entitled to any part of the estate and assets.</p> <p>3. That the indebtedness of Daniel L. Hutchinson to the testator bore interest.</p> <p>4. That the said indebtedness bore interest before the death of the testator.</p> <p>5. In not ascertaining the indebtedness of said Daniel L. Hutchinson.</p> <p>6. In not ascertaining the several amounts of principal and interest due by said Daniel L. Hutchinson.</p> <p>7. In not deciding that the word “capital,” as used in the will, excluded interest on sums loaned.</p>

<p>Appeal from the Orphans’ Court of Philadelphia.</p> <p>These were appeals by Robert Adams, guardian of the minor-children of Mrs. Sarah IT. Adams, deceased, and by E. Kintzing and J. P. Hutchinson, from the decree of the Orphans’ Court made in the distribution of the estate of Mahlon Hutchinson.</p> <p>The appellants, who were judgment-creditors- of Daniel L. Hutchinson, one of the executors of Mahlon Hutchinson deceased, sued out attachment executions issuing from the District Court, on the 19th of April 1862, upon any property of the defendant in the hands of the executors of said deceased, and summoned them as garnishees.</p> <p>On hearing before the auditor they claimed,—</p> <p>1. That Daniel L. Hutchinson’s share in his father’s estate should be awarded to them in payment of their judgments ; and</p> <p>2. That their attachments also bound the commissions of Daniel L. Hutchinson as executor, and that to the amount of their judgments his commissions should be awarded to them.</p> <p>The auditor having decided in the preceding case that the share of Daniel L. Hutchinson was exhausted by his indebtedness to his father’s estate, ruled against the attaching creditors on both points; which was the error complained of here.</p>

<p>Validity of title under recorded, deed, as against previous unrecorded conveyance.— Vendee of land, when competent as witness in ejectment for land purchased by him,.</p> <p>1. A party who derives title to land through and under the first recorded deed by which it is conveyed, pays the purchase-money and takes and retains possession, without notice of the existence of a previous unrecorded deed for the same land, is in law, “ an innocent purchaser for a valuable consideration and without notice,” and is, with his vendees, protected by the recording acts from all claim under such unrecorded title, even though the latter contain an accurate description of the property thus conveyed.</p> <p>2. A person who purchases and pays for land which by his order is conveyed to his son, does not thereby raises a resulting trust in his own favour, and is therefore not incompetent to testify in an action of ejectment brought by the son for land alleged to be within the limits of the purchase.</p>

<p> Proper remedy for testing right to exercise borough office. </p> <p>A bill in equity for an injunction to restrain borough officers from entering upon official duties, under an alleged illegal appointment of town council, will not lie, though they had not exercised or attempted to exercise the duties of their offices: the remedy is at law, by quo warranto, and to be invoked after entry into, or exercise of authority under, their appointment.</p>

<p> Shares of stoch in West Branch and Susquehanna Canal Company taxable for county purposes. </p> <p>Under the Act of April 29th 1844, shares of the capital stock of the "West Branch and Susquehanna Canal Company are subject to taxation for county purposes.</p>

<p>Trusts, when active and operative. — Power of cestui que trust over trust property.</p> <p>1. A devise to a trustee of real and personal estate, to lioid in trust for, and to collect .and receive the rents, issues, and interest, and pay over the same to a son of the testatrix, during his natural life, without being subject to his debts and liabilities, is an active operative trust, and the whole estate is vested in the trustee.</p> <p>2. Hence the cestui que trust cannot dispose of his interest ’ in the estate devised in trust for him, and a court of equity will not decree specific execution of the agreement of sale.</p>

<p>Error to the Common Pleas of Wayne county.</p> <p>This case came into the Common Pleas by appeal from the judgment of a justice of the peace, and ivas an action brought by Amos Reed against L. A. Robertson & Co.</p> <p>The facts of the case were these:—</p> <p>William Batten entered into a contract with L. A. Robertson & Co. to draw for them a certain quantity of bark from the woods to their tannery, at a certain price per cord. On the 25th of February 1861, Batten called at the store of Robertson & Co. to settle, and represented to them that he had drawn all of the bark. On this assurance they settled, and found a balance of $47.31 due him. Batten then requested them to place this amount to the credit of Amos Reed, to whom he was indebted, which Mr. Robertson assented to and did, giving Batten the following paper:—</p> <p>“William Batten has left $47.31 to place to the credit of Amos Reed on our books. February 25th 1861.</p> <p>“ L. A. Robertson & Co.</p> <p>“By L. S. Collins.”</p> <p>This paper being at the time of the trial in the possession of L. A. Robertson & Co., and no explanation given as to how it came there, on notice from the opposite party it was produced and read.</p> <p>Amos Reed was not present, and knew nothing of the arrangement at the time. In a day or two it was ascertained that a portion of the bark had not been drawn, but had been burned in the woods by Batten or his hands. On the 1st of March Amos Reed came to Robertson & Co.’s store — not having seen Batten since his arrangement of the credit — when he was informed what had been done, but that owing to the burning of the bark they did not owe Batten anything, and would, therefore, not pay any money to Reed. Reed then settled with them his account of about $11, and gave them a receipt in full.</p> <p>On the 12th February 1862, Amos Reed commenced this suit in his own name against Robertson & Co. to recover the $47.31.</p> <p>On the trial defendants called John Layman, and offered to prove by him “that William Batten, when he, settled with Robertson & Co. on the 25th of February 1861, represented to them that he had hauled and delivered all of the bark contained or mentioned in the contract of November 10th 1860, when in fact a portion of the bark had been burned by his teamsters, and that Batten had knowledge of the fact; and by such representations the entry of the credit to Reed was procured by Batten on the books of Robertson & Co.” This was objected to, and the offer rejected by the court.</p> <p>Under the ruling of the court below (Barrett, P. J.), there was a verdict and judgment for plaintiff. Whereupon the defendant sued out this writ, averring that the court below erred:—</p> <p>1. In rejecting the evidence of John Layman as to the burning of the bark, &c.;</p> <p>2. In instructing the jury that the plaintiff was entitled to recover in the action, they should have been instructed to find for defendants; and,</p> <p>3. In their charge generally.</p>

<p>Vendor, when a competent witness for vendee.— Withdrawal of testimony, when to he applied- for. — Meusure of damages in trespass for judicial sale of personal property, when plaintiff is the purchaser.</p> <p>1. A vendor of a saw-mill improvement erected by him on leased land, by assignment and quit-claim conveyance endorsed on the lease, without warranty, is a competent witness in an action brought by the vendee against a constable for levying on and soiling a portion of the machinery, on an execution against the former owners: for if the articles sold were fixtures they passed by the assignment, without warranty: if detached and personalty they were not embraced in the assignment, and there was no implied warranty. _ _ .</p> <p>_ _ 2. After the testimony of a witness has been received without objection on the part of the defendant, and used and commented on by him to the jury, he cannot afterwards ask its withdrawal from the jury, as the case is about to be given them by the court.</p> <p>3. Where there was evidence that the property sold by the constable was bought in for the plaintiff: held, that the value of the articles with interest was not the true measure of damages; that the evidence should have been referred to the jury, with instructions that if bought for the plaintiff and the possession had remained undisturbed, the measure of damages was the sum bid at the sale with the interest thereon.</p>

<p>Judgment for want of affidavit of defence, in action on foreign judgmant. — Fraud in obtaining service in original suit, no defence to action on foreign judgment.</p> <p>1. Judgment for want of a sufficient affidavit of defence may be taken, in an action of debt in Pennsylvania, upon a judgment obtained in the Supreme Court of New York.</p> <p>2. An affidavit of defence to such an action, -which alleged that the defendant was fraudulently decoyed to the state in which he was sued, for the purpose of obtaining a service of the process upon him, but nothing against the debt for which the action was brought, held insufficient.</p>

<p>Stay Law, when unconstitutional. — Act 21s¿ May 1861, construed.</p> <p>1. The proviso to sect. 1st of Act 21st May 1861, granting a stay of execution on a judgment due by a soldier, notwithstanding a waiver, is unconstitutional.</p> <p>2. Where a judgment-note contained a waiver of stay of execution, and when due an attachment in execution was issued thereon, it was held error to stay the writ on the ground that the defendant was at the time a soldier, in military service.</p>

<p>Appeal from the Common Pleas of Northampton county.</p> <p>This,was an appeal by William S. Smith & Co. from the decree of the Common Pleas on the distribution of the proceeds of the sheriff’s sale of the real estate of P. W. MeFall and Joseph Martin, partners, doing business as MeFall & Martin.</p> <p>The facts of the case as reported by the auditor were as follows: — P. Winters McFall, James Martin, and Joseph Martin, were engaged as partners in the business of milling and distilling, at Martin’s Creek, Northampton county. In the course of their dealings they became indebted, by simple contract, to a number of persons. On the 2d of April 1851, John M. Young and wife conveyed to them, as tenants in common, the land, the proceeds of the sheriff’s sale of which were in court for distribution. On the 13th of March, 1857, P. Winters McFall, in conversation with William S. Smith, of William S. Smith & Co., in Philadelphia, was told that it was safe to buy all the grain he could store away. McFall said that his firm were short of funds. The conversation turned about Smith’s accepting the draft of McFall & Martin. He said he would accept their draft to raise money to buy grain with, if they would give him a judgment. McFall then gave him a judgment-note, whereby “ McFall & Martin” promised to pay him or order, three months after date, $3000. Mr. Smith showed McFall quite a number of judgments of the same kind, which he had taken and had not recorded, and said he did not know that he would record this one.</p> <p>On the 27th of October 1860, James Martin conveyed his undivided third in the land to P. Winters McFall and Joseph Martin, as tenants in common. James Martin died soon after this, but the precise time of his death did not appear.</p> <p>On the 25th of January 1861, William S. Smith & Co. entered their judgment as of January Term 1861, No. 64. In pursuance of the practice in this court the judgment-note was not filed of record, but returned to the plaintiff. The continuance docket-entry was headed “William Smith & Co. v. McFall & Martin.” There was nothing on the record to identify the parties further. The judgment was entered on the judgment docket or judgment index under letter M thus, “McFall & Martin,” without setting forth the Christian names of the partners. Under this judgment the fi. fa. No. 8, of April Term, 1862, was issued, and this fund brought into court for distribution.</p> <p>Some time after this, some of the parties to whom McFall & Martin were indebted became apprehensive of the security of their claims. One of them called to see McFall, and he gave her to understand that the firm would take care of her as far as they were able. No definite understanding was arrived at with any other of their creditors.</p> <p>About the 21st of January 1862, McFall came to William H. Armstrong, Esq., of the Easton bar (who had no previous connection whatever with any of the creditors), and told him that the affairs of the firm were involved, and retained his services as counsel for the firm, but without retaining him for any other party. They went up,to Martin’s Creek together. There a conversation took place between McFall and Armstrong, in the presence of Joseph Martin. McEall stated the condition of their affairs, -without mentioning the Smith judgment, and said that they had certain confidential creditors, whom they wished to prefer. Mr. Armstrong advised them to confess judgment in favour of these creditors. After this advice was given they examined their papers, and found a receipt relating to the Smith judgment-note. On discovering tnis receipt, McEall told Mr. Armstrong that he did not know whether a judgment had been entered or not, but that, when the note was given, Smith had said that he did not know that he would ever enter the judgment. The communication, however, did not impress itself on the memory of Mr. Armstrong, as he stated that he had no knowledge whatever of the existence of this judgment for some time afterwards.</p> <p>After this, a list of' the confidential creditors was furnished Mr. Armstrong, and he drew confessions of judgment in favour of the parties above mentioned. They were executed by both the parties that evening or the next day. All these papers were dated the 22d of January 1862. The one to Elizabeth Martin was a bond payable the 1st of February 1862, with interest from date. The others were single bills, payable one day after date.</p> <p>Elizabeth Martin....... $4861.96</p> <p>John McEall. ....... 1048.34</p> <p>Joseph Engler ........ 1800.00</p> <p>Peter D. Kieffer...... 838.67</p> <p>David K. Messinger....... 660.00</p> <p>Elizabeth McEall . . . ... 707.64</p> <p>William Morris ....... 524.17</p> <p>David K. Messinger, Trustee for Mary Matilda McEall 1000.00</p> <p>Samuel Eakins...... 256.00</p> <p>Charles Kieffer ....... 300.00</p> <p>George Stocker ....... 183.07</p> <p>William Hutchinson...... 104.84</p> <p>John Pope ........ 350.00</p> <p>Messinger & Brother ...... 375.00</p> <p>In all of these judgments the names of the partners were given in full.</p> <p>When these judgments were signed, Messrs. McEall & Martin requested Mr. Armstrong to enter them. Nothing whatever was said about his acting as counsel for anybody except McEall & Martin. Nor was Mr. Armstrong requested to act for any one except McEall & Martin. He was not then requested to issue executions.</p> <p>Mr. Armstrong entered all these judgments on the 23d of January 1862. In compliance with a custom at the Easton bar, he entered his name as counsel for the plaintiffs in the judgments.</p> <p>On the 30th of January 1862, William S. Smith & Oo. sued out fi. fa. No. 8, April Term, 1862, on their judgment. About the same time Mr. Armstrong first became aware of the existence of the Smith judgment, and communicated his knowledge of the fact to McFall. On the 31st of January, Joseph Martin, by Mr. Armstrong as his attorney, petitioned the court to strike it off.</p> <p>In February 1862, Mrs. Martin wished McFall to see that her judgment was attended to, and he and David K. Messinger went to Mr. Armstrong and directed him to issue executions on Mes-singer’s and Mrs. Martin’s judgments. They gave no order to issue execution on any others. About the same time, Joseph Engler spoke to Mr. Armstrong. Up to that time Mr. Armstrong had considered himself as retained for McFall & Martin only. He received instructions, at these interviews, to issue executions on all the judgments confessed on the 22d of January. Under these executions the sheriff sold the land on the 24th of March 1862. At that time the judgment of William S. Smith & Co. called for $2054.39, with interest from January 28th 1862, being $2073.56. The judgments entered January 23d 1862 amounted to the sums above mentioned, with interest and costs.</p> <p>The property sold for $10,605. Out of this fund Elizabeth Martin was paid in full. The costs on all the judgments claiming the fund for distribution were also paid by the sheriff.</p> <p>On the 2d of May 1862, on motion of E. J. Fox, Esq., for William S. Smith & Co., the sheriff paid into court, of the above $10,605, the sum of $2300, being the fund to be distributed.</p> <p>On the 30th of July 1862, the court directed that the name of Martin be stricken from the judgment of William S. Smith & Co., and that the judgment remain good against McFall.</p> <p>Soon afterwards Mr. Armstrong entered the military service of the United States, and relinquished his charge of the judgments entered on the 23d of January.</p> <p>On the foregoing state of facts, the counsel for the other lien-creditors, who succeeded Mr. Armstrong, contended that the judgment of William S. Smith & Co. was incorrectly indexed,' and was, therefore, to be postponed to the judgments of his clients, to whom the fund in court ought to be awarded.</p> <p>The auditor refused to postpone the lien of William S. Smith & Co., chiefly on the ground that by the exhibition of the receipt of William S. Smith & Co. to Mr. Armstrong and the remarks made then by Mr. McFall, the other creditors had notice of the lien.</p> <p>To this distribution exceptions were filed, which on argument were sustained by the court below, and the claim of William S. Smith & Co. stricken from the list of distributors, which was the error assigned here for William S. Smith & Co.</p>

<p> Notice of mortgage,'actual and constructive. </p> <p>1. Actual notice to a subsequent purchaser or encumbrancer of the existence of a prior mortgage upon land, is equivalent to the constructive notice given by the index to the mortgage-books.</p> <p>2. Hence if a purchaser of land have actual notice of the existence of a mortgage upon it, recorded but not indexed, he cannot complain of the want of the index.</p>

<p>Appeal from the Orphans’ Court of Philadelphia.</p> <p>This was an appeal bv Mrs. Sarah Edwards, from the decree of the court on the distribution of the proceeds of the real estate of William A. Edwards, deceased, which was sold by the executors of his last will and testament, under a power contained in said will.</p> <p>The case was this: — William A. Edwards, the testator, on the 10th September 1856, made his will, of which the material provisions are as follows :—</p> <p>“ Item. — It is my will, and I direct my executors herein named to hold all the rest, residue, and remainder of my estate, real, personal, and mixed, in trust for the following uses; that is to say: First. If they or the survivor of them, my said executors herein named, shall see proper, I hereby authorize, empower, direct, and give authority to them to sell any portion or all of my said estate, and invest the proceeds thereof as in their judgment shall be best (the purchaser to be discharged from all liability as to the proceeds of said sale), and when said estate shall be sold and yield an income, be the same greater or less, the said income shall be paid quarterly to my friend, Sarah Devitt, daughter of the late T. J. Devitt, clear of all charges but commissions and taxes, so long as my said friend shall live, either single or married; and if she shall die at any time, leaving lawful issue, then it is my will that my said executors, by good and legal assurances, shall convey all my said estate to the heirs of the body of my friend, the said Sarah Devitt, share and share alike. It is my desire that my said estate shall be made to yield an income immediately after my decease, in order that my friend, the said Sarah Devitt, shall enjoy the benefit thereof.”</p> <p>Mr. Edwards was married to Miss Devitt on the 13th of Februai*y 1858. He died on the 10th of August 1860, leaving his wife enceinte of a son, who was born on the 25th of August 1860. The child was named William Edwards, and is still living. The personal estate of the testator was insufficient for the payment of his debts, whereupon the executors sold the real estate, and brought the proceeds into their account, which was referred for settlement to A. I. Fish, Esq., as auditor.</p> <p>The auditor reported, in substance, that there was a provision for the issue of the testator, that the will was therefore not revoked by the birth of the child, that a life estate was created by the will in Mrs. Edwards, the devisee, and “ a fee in the executors, with directions to convey to the heir or the devisee, upon the falling in of the life estate.”</p> <p>Exceptions were filed to this report on behalf of the executors, and sustained upon argument by the Orphans’ Court.</p> <p>The auditor then filed a supplemental report, under the directions of the court, to which the following exceptions were filed on behalf of the present appellant:—</p> <p>1. In reporting that the devise to Sarah Devitt, now Mrs. Edwards, in the will of the said William A. Edwards, created an estate tail, or an estate in fee in the devisee.</p> <p>2. In reporting that the will, as to the after-born child of the testator, is revoked, and that the testator, as to such child, must be regarded as having died intestate.</p> <p>3. In reporting that the exceptant is entitled to one third part of the personal estate of the testator, absolutely, and to one third part of the real estate for the term of her life.</p> <p>4. In reporting that the guardian of the testator’s minor son will be entitled to two-thirds of the income of the real estate during the life of the widow, and the minority of the ward.</p> <p>5. In reporting that the. minor child of the testator will be entitled to receive by his guardian the sum of $9333^, and the exceptant $4666-f.</p> <p>These exceptions were overruled by the court, and the report absolutely confirmed; whereupon this appeal was taken.</p>

<p> Relative rights and duties of adjoining landowners, as to draining water on and from their lands. </p> <p>1. The owner of land through which a stream flows may increase the volume of water therein by draining into it, without liability for damages to a lower owner; but he cannot, bj' an artificial channel, drain water standing upon his own land upon that of another.</p> <p>2. In an action for damages caused by turning water from defendant's land upon that of the plaintiff, the charge of the court to the jury, that if they found that the defendant did collect water from his own land, and turn it in a body upon that of the plaintiff, through an artificial channel, to his injury, ho was entitled to recover the damages he had sustained, was not error.</p>

<p>“ Three tueehs’ notice before the time of meeting” construed. — Election by the people, on question of dividing township, necessary.</p> <p>1. Where commissioners appointed on an application for the division of a township, were ordered to “ give notice of the time and place of meeting in one English and one German newspaper,” “ three weeks before the time of meeting,” three successive insertions made within less than three weeks before the meeting, are not a compliance with the order.</p> <p>2. Under the Act of 14th March 1857, it is the duty of the Court of Quarter Sessions to order an election when a return has been made favourable to a division of a township.</p>

This was an action of assumpsit brought, June 6th 1862, by the township of Oswayo against the county of Potter. The main facts of the case were these:— Eli Rees was duly elected treasurer of Potter county, and as such collected the taxes assessed upon unseated lands for township purposes.

Certified from the Court at Nisi Prius. This was an action of account by John C. Fifield against The Insurance Company of Pennsylvania, upon a policy of insurance under seal, issued by the defendants to the plaintiff, upon the 24th November 1860, by which the defendants insured the plaintiff in the sum of $3000, from the 23d of December 1860 to the 23d of December 1861, upon a vessel valued at $12,000, called the John Welsh.

<p>Certified from the Supreme Court at Nisi Prius.</p> <p>This was an action of assumpsit by the city of Philadelphia against the Pennsylvania Railroad Company, to recover $94,500, dividends npon plaintiffs’ stock in defendants’ company, declared October 16th 1863, and payable November 15th 1863, but which was withheld by defendants.</p> <p>Prior to consolidation the old city of Philadelphia became the owner of $4,000,000 of the capital stock of the Pennsylvania Railroad Company, and the districts of Spring Garden and Northern Liberties each of $500,000, making in all $5,000,000. The commissioners of the sinking fund have since disposed of $275,000 of the stock, and there is now belonging to the consolidated city $4,725,000 of stock, being 94,500 shares, at $50 per share.</p> <p>The subscription by the two districts was in their coupon bonds, bearing semi-annual interest, and payable at defendants’ office.</p> <p>The railroad company always deducted the interest on the coupon bonds given by the districts for their subscriptions from the amount of the dividends declared on the stock held by the city, and paid the balance on demand. •</p> <p>On the 16th of October 1868, the company declared a semiannual dividend of 5 per cent., payable on the 15th of November following, out of which they withheld $94,500. Demand for payment of this sum was made, and refused on the allegation that the defendants were entitled to hold it by virtue of an ordinance of councils relating to a projected line of steamships.</p> <p>For several years past great exertions were made to establish an ocean steamship line between Philadelphia and foreign ports, an enterprise which, it was believed, would greatly augment the carrying trade of the Pennsylvania Railroad Company, and benefit the city. Efforts were therefore consequently made to induce the city to become a direct contributor to the enterprise.</p> <p>In June 1863, the councils of Philadelphia adopted an ordinance, by which the railroad company were allowed to retain the excess above six per cent, of the dividends declared on the stock in the road held by the city, and also such dividends as should be paid on any stock of the railroad company as might be divided as a stock dividend, until the amount retained should reach $700,000. These moneys so retained, it was provided, should be invested by the company from time to time in city loans, the interest whereof was to be paid to the city.</p> <p>This fund was ultimately to be applied by the company as an indemnity against any subscription which they might make to the steamship company, or against any loss which might result to the company by reason of their having given any guaranty in order to induce subscriptions to the steamship stock by other parties.</p> <p>A contract embodying these provisions was therefore authorized to be made by the mayor with the defendants.</p> <p>This ordinance did not receive the mayor’s approva-l, but was allowed to become a law without his signature; he, however, notified councils that the contract required by the ordinance would not be executed by him, until a decision as to its legality was had. No contract was ever prepared or tendered to the mayor for execution, but the dividends were retained as above stated.</p> <p>There was a verdict for the city for the amount claimed with interest, subject to the opinion of the court on the following reserved points, viz., Whether the plaintiffs under the law were entitled to recover either principal or interest; or both. January 23d 1864, the court entered judgment for plaintiff on both points.</p> <p>The errors assigned were: — •</p> <p>1. That the court erred in entering judgment for the plaintiff on the points reserved;</p> <p>2. In not entering judgment for defendant.</p>

<p>Certified from the Supreme Court at Nisi Prius.</p> <p>This was an action on the case, by William Warren Ferrers against Benjamin Schofield, to recover damages for malicious prosecution.</p> <p>Schofield, who was a liverv-stable keeper in Philadelphia, made an information against Ferrers, charging him with the larceny of a horse, on which a warrant was issued, the defendant arrested, a bill found by the grand jury, and the defendant put upon his trial, which resulted in his acquittal.</p> <p>The testimony showed that the parties had some dealings together, by which Ferrers became indebted to Schofield. Ferrers was the owner of a brown stallion, which Schofield desired him to bring to his stable, in order that they might settle their matters, among which was an item for a sorrel horse, which Schofield alleged Ferrers had taken from his stable without permission a.nd sold. In pursuance of this arrangement, the stallion was brought to Schofield’s stable, but as no final settlement was made, Ferrers subsequently took his horse away again without Schofield’s consent.</p> <p>An information for horse-stealing was then made, and a warrant issued. Ferrers appeared before the magistrate, and not meeting the prosecutor there, went in search for him.</p> <p>This warrant was mislaid or lost by the constable; whereupon Schofield went to another alderman, renewed his complaint, had another warrant taken out for the arrest of Ferrers, and also a search-warrant for the horse. The horse was found in the possession of a third party, and delivered to Schofield, and Ferrers was arrested and imprisoned.</p> <p>Subsequently Schofield A'isited Ferrers in prison, and offered to withdraw his complaint if he would execute a bill of sale for the horse in dispute, which was done.</p> <p>Ferrers was then released from prison. The prosecution, however, was not withdraAvn, but was proceeded in, and resulted in a verdict of not guilty, as above stated. Ferrers subsequently brought replevin for his horse, which was tried and revieAYed in this court: 10 Wright 438. This action on the case Avas then brought, as above stated.</p> <p>The defence was the existence of probable cause warranting the criminal proceedings.</p> <p>On the trial the defendant offered in evidence the record of the District Court in the replevin suit, to show a former recovery, and also in mitigation of damages, which was objected to and rejected by the learned judge.</p> <p>The jury were instructed as to what the law declares probable cause to be, and directed to inquire whether the defendant had such cause for instituting the prosecution complained of, and that if there was not such probable cause, they should find for the defendant.</p> <p>Under the ruling of the learned judge before whom the cause was tried, there Avas a verdict and judgment for $500.</p> <p>This writ was then sued out, and the rejection of the record in the action of replevin, and the charge of the court at Nisi Prius assigned for error.</p>

<p>Filing °f additional count, when within the discretion of the court.— General reputation for chastity, when admissible in action for defamation.</p> <p>1. In an action for slander, a new count may be added to the declaration, when it can be regarded as an amendment at common law, it is therefore in the discretion of the court, and the allowance of the amendment is not error, especially where it is not clear that the added count introduces a new cause of action, or is anything more than a new form or statement of the slander averred in the former counts.</p> <p>2. Where the averment of the declaration was the imputation by the defendant to the plaintiff of general unchastity, and the general issue alone was pleaded, evidence may be offered in mitigation of damages, that the general reputation of the plaintiff for chastity was bad.</p>

<p>Error to the Common Pleas of Delaware county.</p> <p>This was an attachment execution by John Coates against Davis Mitchell, in which James Culbert et al. were summoned as garnishees. After interrogatories and answers filed, a rule to shoAV cause Avhy defendant should not have his claim of $300 under the Exemption Law was entered, and an auditor appointed to ascertain and report the facts of the case, all which are set forth in the opinion of this court.</p> <p>The defendant’s claim for exemption was disallowed, and judgment entered against the garnishees for the amount in their hands as per answers filed; which Avas the error assigned.</p>

<p>Error to tbe Common Pleas of Chester county.</p> <p>This was an attachment execution brought by Edward P. Collier to the use of Carver Schofield et al., judgment-creditors of James Buckley, attachingfin the hands of The Chester County Mutual Insurance Company, $750, with interest from March 19th 1861, claimed to be due said Buckley.</p> <p>The facts were these: — On the 25th day of September 1846, the Mutual Fire Insurance Company of Chester County issued to James Buckley and James Schofield, copartners, a policy of insurance, numbered 4293, for $3050, upon a stone woollenfactory and outbuildings, in Sadsbury township, Chester county, owned and occupied by them.</p> <p>On the 29th day of September, 1846, Buckley & Schofield assigned the policy of insurance to Farnum, Newball & Co. as collateral security for the payment of money loaned by them on the premises therein insured, which assignment was approved by the company, March 1st 1847.</p> <p>On the 16th day of March 1850, Farnum, Newhall & Co. assigned the policy to Esther Painter as collateral security for the payment of money loaned by her on the premises therein insured; which was approved by the company, April 2d 1850.</p> <p>On the 31st day of March 1855, Abram W. Baily, executor of Esther Painter, assigned the policy to Caleb Iloopes as collateral security for the payment of money loaned by him on the premises’therein insured; which was approved by the company, April 15th 1855.</p> <p>The premiums upon the policy were paid regularly by Buckley & Schofield, from September 1846 until March 1854, when they dissolved partnership, Schofield going out, and conveying to James Buckley, the remaining partner, all his interest in the insured premises. After this the premiums were annually paid by James Buckley, up to September 1861.</p> <p>On the 19th day of March 1861, a fire occurred on the insured premises, involving a loss upon this policy of $1500.</p> <p>Caleb Ploopes, the holder of the policy at the time of the fire, demanded this loss of the company, but they refused to pay to him more than the one half thereof, to wit, $750; alleging that the other half was forfeited by the sale of Schofield’s interest in the insured premises in 1854, to Buckley, without a transfer by Schofield to Buckley of the policy, with the approval of the company, as they claimed was required by the 11th clause of the by-laws attached to the policy, viz.:</p> <p>“ 11. Any person selling or otherwise transferring the property (or any part thereof) insured in this company, his policy shall be void (so far as relates to the part so sold or transferred), unless the said policy be also transferred to the purchaser thereof, and the said transfer accepted by the president or secretary, within twenty days after the said sale or transfer shall be fully concluded, or before a fire happens to any part of the premises so sold or transferred; such assignment to be endorsed on or annexed to such policy or contract of insurance, agreeably to the 7th section of the act incorporating this company.”</p> <p>On the 12th of July 1861, Caleb Hoopes received from the insurance company $750, without prejudice as to any claim for the balance of the loss.</p> <p>Shortly afterwards Hoopes obtained satisfaction of the balance of his claim for which he held the policy as a collateral, by a sale of James Buckley’s land, and on the 2d of August 1861 this attachment execution was issued, all remaining interest in the policy having reverted to James Buckley, the defendant in the attachment.</p> <p>It was in evidence that the treasurer of the insurance company, in charge of the office at Coatesville, had knowledge of the dissolution of the copartnership between Buckley and Schofield, and of the sale by the latter to Buckley of his interest in the insured premises, shortly after the sale took place, in 1854; that he continued annually for some years, as the agent of the company, to receive from James Buckley the whole assessed premium upon the full amount insured by the policy. The learned court below, upon the trial of the cause, charged the jury that the omission of Buckley (when he purchased Schofield’s interest in the insured premises) to obtain from Schofield a transfer of the «policy of insurance, with the approval of the company, made the policy void under the 11th clause of the by-laws, and that no recovery could be had by the plaintiff, that the acceptance by the treasurer of the company of the premiums, with a prior knowledge of the sale of the insured premises from Schofield to Buckley, -was not such a notice to the company as required by the condition of the policy, and therefore did not relieve its forfeiture; which was the error assigned here by the plaintiff, after a verdict and judgment for defendant.</p>

<p>Appeal from the District Court of Philadelphia.</p> <p>This was an appeal, by William De Cou, from the decree of the court below on the distribution of the fund raised by a sheriff’s sale of the real estate of John W. Middleton, at the suit of the guardian of the minor children of Edward C. Eassitt, deceased.</p> <p>The sale was under a judgment for ground-rent obtained by the heirs of the original covenantee against the original covenantor. The appellant claimed the fund as assignee of a prior judgment of the same plaintiffs, against the same defendant, for ground-rent accrued some time before. The auditor appointed to make distribution of the fund under the above proceedings reported, that on the 24th of June 1851, Edward C. Eassitt and wife granted and conveyed to John W. Middleton the premises which were sold by the sheriff, reserving to the said Eassitt, hi.s heirs and assigns, the yearly ground-rent of $240, payable half-yearly, on the 7th day of May and November. The deed contained a power to the grantor to re-enter in case of non-payment of the rent, and a covenant by the grantee to pay the rent. In 1859, the rent being in arrear, Mrs. Pleasonton, guardian of the minor children of Edward O. Eassitt, brought an action of covenant for non-payment of the rent, and on the 26th of November 1859, obtained a judgment of September Term, 1859, No. 1960, for $1301.80. On the 16th December following, Nathan Middleton entered into a recognisance as the security of the defendant for the payment of the debt, interest, and costs, to entitle him to a stay of execution. In July 1861, a scire facias sur recognisance against Nathan Middleton on the above judgment was issued by the plaintiffs, and a judgment obtained against him on the 26th April 1862, which judgment was paid and satisfied of record on the 27th June 1862. On the same day the judgment against John W. Middleton, for arrears of ground-rent, was marked by the plaintiff’s attorney to the use of Nathan Middleton, and afterwards, on the 26th March 1863, was, by writing filed, marked to the use of William De Oou.</p> <p>Prior to the assignment of the above judgment to Nathan Middleton other arrears of rent had accrued, and on the 28th July 1860, an amicable action of covenant for said arrears was filed, and judgment confessed by said John W. Middleton to plaintiffs for $121.62, upon which the above-mentioned lot wras taken in execution and sold on the 7th July 1862, and the money brought into court. The fund to be distributed by the auditor was $348.87.</p> <p>The children of Fassitt claimed to be allowed the sum of $480, being two years’ ground-rent accrued since the date of the judgment under which the premises were sold, and prior to the sheriff’s sale. Their counsel also represented the judgment-creditors in the execution.</p> <p>William De Cou, the assignee of the judgment of September Term 1859, No. 1960, claimed that his judgment was first entitled to be paid out of the fund, being for arrears of ground-rent.</p> <p>The counsel for the claimants made no argument before the auditor, nor presented any authorities in support of their respective claims, but requested him to report distribution of the fund, according to the facts stated, and the law as he should find it.</p> <p>The auditor awarded the fund in court to William De Cou, but the District Court, on exceptions being filed, reversed this decision, and awarded the money to the plaintiffs, under their subsequent judgment for the arrears of rent which had accrued after-wards ; which was the error assigned.</p>

<p>Certificate from the Supreme Court at JSTisi Prius.</p> <p>This was an action of ejectment brought by Isaac Abrahams and Washington D. Eckman, Susanna Eckman, and Hironomous Eckman, by their next friend Jane Eckman, against George O. Tripner, Hannah Tripner, and William P. Corlies, for the recovery of a lot of ground and buildings at the south-west corner of Twelfth and Brown streets, in the city of Philadelphia.</p> <p>The actual defendant was Hannah O. Tripner, wife of George Tripner. Both parties claimed title through the defendant George Tripner. The plaintiffs, by a sheriff’s sale under a judgment and execution against George Tripner, the deed-poll bearing date May 16th 1858. The defendant, Hannah C. Tripner, through a conveyance, prior in date, by George Tripner and herself to William P. Corlies, dated August 21st 1857; and by a conveyance by said William P. Corlies to herself, of the same date; the consideration of the latter conveyance being $7550.</p> <p>After the plaintiffs had given in evidence their deed for the land in controversy, bearing date May 15th 1858, from the sheriff to them, and showing that as early as 1857 defendant George Tripner, became embarrassed, and that numerous judgments were obtained against him, including that of plaintiffs, amounting to $679.15, they closed their case.</p> <p>The defendant then offered in evidence deed from George Tripner and herself to William P. Corlies, dated August 21st 1857; and a deed by said William P. Corlies, her son by a former husband, to herself of same date, the consideration being $7550. She also proved, by several conveyancers, that the consideration was full, adequate, and sufficient for the property, and that it was paid by the wife to her husband, as loans, in cash, in different amounts and at different times, extending over a period of six or seven years.</p> <p>It was also testified that none of this had ever been paid back. Mrs. Tripner was a lady of ample private means. Prior to her marriage to George Tripner she was the widow of Briton Corlies, who died in the year 1840. From his estate she derived several properties; and also from an unsettled partnership account of the said Briton Corlios the sum of $6175.47, and a note for the sum of $3500, which was paid.</p> <p>The above-named properties were very valuable, and produced a rental of $1490 per year. Besides this income, she was engaged for nearly ten years after her first husband’s death in keeping a boarding-house. The evidence was that she had in this business made large sums of money. All this was before her second marriage.</p> <p>About the year 1850 she married the defendant George Tripner. He had been engaged extensively in butchering and dealing in cattle. At various times, from the year 1850 to 1857, he applied to his wife for money, which was loaned to him, and which formed the consideration for the conveyance to her, part of this money having gone to pay debts due by said George Tripner to this plaintiff.</p> <p>About the date of the conveyance Mrs. Tripner consulted counsel in reference to the case, who, after a complete and full investigation of the4 matter, advised the conveyance of the property in dispute from Tripner to his wife. This Mr. Tripner assented to, and the conveyance in question was made.</p> <p>The plaintiffs in rebuttal offered evidence tending to show fraud, and produced one witness who said the defendant George Tripner had bribed a witness by giving him money to treat himself.</p> <p>This was objected to by defendant, but admitted under exception.</p> <p>The plaintiffs then closed their case. The learned judge (Woodward, C. J.), after explaining to the jury the position of the parties, and how they derived their respective titles, directed the attention of the jury to the consideration in the deeds of 21st August 1857, and the bonafides of the conveyance by Tripner to his wife.</p> <p>“ He said there was nothing in the law to prevent a husband settling and conveying his real estate to his wife, or to another in trust for her, if it were done bond fide, and for a valuable consideration; but that to make it bond fide it must be for an adequate as well as a valuable consideration, and that must be paid by the wife out of her own separate estate, else it would be in fraud of his creditors. If so paid for, the creditors were not defrauded, for the consideration stood instead of the estate, and in judgment of law he was as able to satisfy them after such conveyance as before. The vital questions of the cause, therefore, to be decided by the jury upon all the evidence were:</p> <p>“ 1st. Did Mrs. Tripner pay the consideration mentioned in these deeds out of her separate estate ? And,</p> <p>“2d. Was it an adequate and fair consideration?</p> <p>“There was evidence that she had separate property of her own. Was it productive enough to furnish her with means ? Mere possession of money after she became Tripner’s wife, would not prove her ownership. The law presumes money in possession of the wife to belong to the husband; and the profits of the boarding-house, after marriage, would belong to him. The jury are to be satisfied, beyond all reasonable doubt, of her ability to pay this large sum of money. The law looks upon such transactions with jealousy, because its benevolence to married women is so often perverted to fraudulent purposes. It requires her to come into court with full proof, such as will relieve reasonable doubts. If you pause or doubt upon her evidence, your verdict should be given to the plaintiff.</p> <p>“ As to the adequacy of the consideration, if it was paid out of her separate estate, there does not seem to be serious question. The former verdict and judgment are persuasive evidence for the defendant. They should weigh somewhat against the doubts that may arise in your minds about her ability to pay the moneys in question. They are conclusive^ of nothing. Moneys advanced and loaned to her husband prior to the conveyance, might fairly be accounted part of the consideration.</p> <p>“ If the plaintiffs recover, they will be entitled to mesne profits from the time this title vested.”</p> <p>The jury being unable to agree, and coming into court for instruction, the learned judge said: “ The law does require more evidence here than it would under other circumstances. A jury would naturally require more evidence in a case like this. The small papers are not evidence of anything.”</p> <p>Under these rulings and instructions the jury found a verdict for the plaintiffs, but refused to give mesne profits. The counsel for the defendants then and there excepted to the aforesaid rulings and charge of the court, and the case was thereupon certified to the Supreme Court in banc, where the following errors were assigned:—</p> <p>I. The learned judge who tried the cause erred,—</p> <p>1. In permitting the plaintiffs to prove that George Tripner gave a witness money during the trial in the District Court.</p> <p>2. In rejecting the receipts from plaintiff to defendant Tripner, prior to August 1857.</p> <p>3. In charging the jury that the vital and important questions were whether Mrs. Tripner had the money to lend, and did lend it to her husband; and that “ if they had any reasonable doubt upon either of these points, then they must find for the plaintiffs. That the law looked upon these transactions with jealousy, because its benevolence to married women is so often perverted to fraudulent purposes.”</p> <p>4. In charging the jury: “ We expect the highest kind of evidence; that kind of evidence which shall relieve the mind of all reasonable doubt.” •</p> <p>5. In charging the jury: “ If you pause — if you doubt, you will find for the plaintiff. It is your duty to scan the evidence with jealousy. If you find for the plaintiff, he is entitled to mesne profits from the date of his deed.”</p> <p>6. In charging the jury: “ that the profits of the boardinghouse, after marriage, would belong to the husband.”</p> <p>7. In charging as well against the defendant Corlies as against the other defendants — said Corlies having disclaimed all title; the sheriff having returned him out of possession, and there not being a tittle of evidence against him.</p> <p>8. In answer to a question instructing the jury, “ that the law does require more evidence here than it would under other circumstances.” “ A jury would naturally require more evidence in a case like this.”</p> <p>9. In charging the jury, “that the small papers are not evidence of anything.”</p> <p>10. The court erred in entering judgment against defendant Corlies.</p>

<p>Appeal from the Orphans’ Court of Philadelphia.</p> <p>This was an appeal by Mary Nevins, the widow of Christopher Nevins, deceased, from the decree of the Orphans’ Court in relation to her claim for the sum of $300, under the Widows’ Exemption Law.</p> <p>The case came into the Orphans’ Court on the petition of Richard H. Darrah, administrator of deceased, in which he set forth that the decedent died intestate in the month of March 1863, leaving a widow, Mrs. Mary Nevins, and three children by a former wife, viz.: Catharine, Christopher, and Ann, all of whom survive, are of full age, and unmarried; that the widow has claimed for herself $300 out of the cash now in his hands, according to the provisions of the Acts of 14th of April 1851, and 8th of April 1859, annexing the demand of the widow; that he has in his hands more than enough cash to meet the said demand; that he is in doubt whether he should pay over the said money to the widow, there being children of the decedent who are equally entitled to the provisions of the said Act of Assembly with the widow, and who object to the said money being paid to her, claiming it themselves, and praying such order and decree in the premises as may seem meet.</p> <p>The widow answered the petition, claiming that the “retention is by the widow, and the appraisement is to her.”</p> <p>The son and daughters of the deceased answered that the $300 should be divided in “proportionate parts” between the widow and themselves.</p> <p>Upon the petition and answers the court (Thompson, P. J.) delivered the following opinion :—</p> <p>“ Where a decedent leaves a widow and children, the Act of 1851 and its supplements authorize the retention, for their benefit, of $300 worth of property, or the same amount of money belonging to his estate, for their mutual benefit. The widow is regarded in the light of a trustee for her children, and the amount goes into her hands for the use of the family. Where, however, the relation of the widow to the decedent’s children is that of a stepmother, who, neither in feeling nor in fact, stands, after the death of the father of the family, in the relation of a mother to the children, and where the family ties are then sundered, and the widow is not in a position to administer the property or money to be retained for their mutual benefit, it would seem that the intention of the law must be carried out by some other means. Certainly the children of a decedent, who formed part of his family, and derived their support from him, are, equally with the widow, entitled to consideration and protection ; and even though they may, as in this case, have reached adult age, their necessities may be as great as hers. It is for the court, in the absence of any express direction of law, to endeavour to administer the trust which is designed for the decedent’s family, so as to benefit all for whom it is designed. The rule of the intestate law seems to us as little liable to objection as any that can he applied to the present case. Under that, the one third part of the sum reserved out of the property of the decedent should be paid to the widow, and the remainder be applied to the benefit of the children who lived with him as his family.” This appeal was then entered, and the ruling of the court below assigned for error.</p>

<p> Appropriation of payments by member of loan association. </p> <p>1. A member of a loan association gave bond for a loan and the payment of instalments on four shares of stock, and thereupon assigned all the shares he had as collateral security therefor: and on obtaining a second loan on two more shares made a second assignment of all his stock, as collateral : Held that, he could not afterwards apply the instalments paid upon the stock, to the first loan, which had been secured by judgment, if before obtaining the second, he had made no such appropriation of them.</p> <p>2. As the first assignment, as collateral, was not a discharge of the loan to the extent of the instalments paid; and the second was an election by defendant not to treat the first, as a partial payment of the first bond, but to pledge all the stock as a living security for the payment of the second: Held, that the payments on the stock should be applied to the second bond and not to the first, against the consent of the association, except to the extent of what might remain after the second was paid.</p>

<p>Error tó the District Court of Philadelphia.</p> <p>This was an action of trespass on the case, by James Kitchen-man against Timothy McCarty, to recover damages for obstructing a private alley theretofore used by the plaintiff.</p> <p>The plaintiff in his declaration averred the existence of an alley four feet wide, running from Fourth street to Pink or Charlotte street, along the rear of the lots owned by plaintiff and defendant, and the other lots fronting on Master street between Fourth and Charlotte, and claimed the free and uninterrupted use of the way as appurtenant to his property, averring that the defendant had, on the 1st of October 1861, obstructed the alley by erecting a gate at its Fourth-street entrance, which was at the foot of defendant’s lot, and that the obstruction complained of had been continued ever since.</p> <p>The defendant contended, that he had purchased and owned the fee simple of the ground over which the alley was claimed.</p> <p>The claim of the parties appear more clearly in the annexed diagram, the dotted line in the centre of the four-feet alley representing the line of the lot of McCarty as claimed by him.</p> <p> </p> <p>The deeds under which the parties severally claimed title are fully recited in the opinion of this court. On the trial in the District Court the learned judge directed the jury to render their verdict for the plaintiff, reserving for the decision of the court in banc the point as to the legal right of the plaintiff to recover, and subsequently filed the following opinion: —</p> <p>“ It appears to have been conceded in Maynard v. Esher, 5 Harris 222, that when the owner of two adjoining lots sells one of them and retains the other, the purchaser of the first will he entitled to the enjoyment of every easement with which the second is visibly and distinctly charged at the time of the sale, although nothing is said about it in the deed by which the land is conveyed. It would seem to follow, and the English cases referred to in Maynard v. Esher decide, that the result will be the same when the land subject to the easement is sold and that entitled to it retained, because the parties may fairly be presumed to have relied on the evidence of their senses in making the bargain, and to have meant to buy and sell the property in its actual condition as it stood before them. But however plain this may be on authority and principle, we should undoubtedly have followed Maynard v. Esher, if it had laid down a different rule. In that case, however, the land subject to the easement was expressly conveyed without encumbrance, which, as the court held, was equivalent to an express stipulation that it should be free from the easement. No such clause is to be found in the present instance, and we are therefore free to give effect to the general principle, which is, as we suppose, in favour of the plaintiff. If the defendant visited and examined the property before buying, and the law esteems it the duty of every purchaser to do so personally or by agent, he must have seen that it was traversed by. an alley leading from the lot subsequently bought by the plaintiff. Is it not reasonable to suppose that he bought subject to the alley, and expected it to remain open as the only means of egress from the rear of the adjoining property ? To allow the alley to be closed now would be to give him an advantage, and inflict an injury on the other party not anticipated by either of them when they became buyers. On the whole, therefore, although not without some doubt, in view of Maynard v. Esher, we give judgment on the point reserved, for the plaintiff.”</p> <p>Which was the error assigned.</p>

<p>Error to tbe District Court of Philadelphia.</p> <p>This was an action on the case, by Bridget Hagan, widow of John Hagan, deceased, John Hagan and Bridget Hagan, minor children of said deceased, who sued by their mother and next friend Bridget Hagan, and Mary Hagan, a daughter of said deceased; against The Philadelphia and Trenton Railroad Company, to recover damages for the death of said deceased, which they averred was occasioned by the negligence of the employees of the defendant.</p> <p>The main facts of the case were these:—</p> <p>On the 28th of January 1863, between ten and eleven o’clock at night, John Hagan, now deceased, went into the public-house of Louis Blumhart, which stands on the north-west corner of Ann street and defendant’s railroad, about forty feet distant from the western rail of the track. The house has two doors, one opening on Ann street, and the other toward the railroad. Ann street, formerly known as Richmond lane,.is the oldest principal and public highway through which the residents of Richmond pass to the Frankford road. It was opened many years prior to the building of the railroad, and is crossed by it at grade.</p> <p>The residence of John Hagan was at that time on Janney street (the second street south of the railroad), near the corner of Ann street. After remaining in the hotel some ten or fifteen minutes in conversation with some who were present, he rose to go home, in company with a Mr. Schmidt; going out of the door on Ann street. As the door opened the noise of the approaching train was heard, and the glare of the reflector seen. The night was stormy; it was snowing, and the ground was covered with snow. Schmidt, who was standing at the ' door with Hagan, advised him to he careful, but testified also that he thought the cars were two or three squares off, and added, “ I don’t know whether Hagan heard me.”</p> <p>As soon as Hagan left the steps he began to run towards his home, which was on the other side of the road. As he crossed the track he was caught by the locomotive, carried some distance below Ann street, where he was found dead a few minutes after-wards.</p> <p>When first perceived by the engineer on the train, he was about five yards from the western rail running towards the road; the usual means were adopted to stop the train, but without success.</p> <p>There was some conflict in the testimony between the persons in charge of the train and those who were off the train, the former asserting, under oath, that the whistle was sounded and the bell rung in due time, while the latter were equally positive that no sound was to be heard other than that produced by the reverberation of the wheels and machinery of the ears.</p> <p>The train was behind time, and had been running at the rate of thirty miles an hour, but its speed had been reduced by shutting off the steam before the accident happened, and allowing the momentum previously acquired to exhaust itself gradually, so as to cross a bridge near by, at the regulation speed of fifteen miles an hour. The bridge had not been reached when Hagan was killed, and the witnesses did not agree as to the rate of speed at that time, some of them fixing it at fifteen, and others at twenty-five miles an hour.</p> <p>There was no one stationed by the company at this point to warn people of approaching trains, nor any gateway, or other precaution provided.</p> <p>Among the points presented by the parties, on which the instruction of the court below was requested, were the following :—</p> <p>For plaintiff. — 3. If the whistle of the engine was not sounded, nor any other usual notice given of the approach of the train, the deceased had a right to presume that the track was clear, and unless the jury are satisfied by affirmative proof that the deceased did not use ordinary care, the defendants are liable for the consequences of his injury.</p> <p>4. The employees of the train of the defendants were required to approach the crossing of a public street or highway, where the injury complained of occurred, at a moderate rate of speed, and to give timely warning to travellers and pedestrians lawfully going upon, or over, or across the public street or highway. And if the plaintiffs have shown that by neglect or omission on the part of those having charge of the train, their duties were not fulfilled in this case, the defendants are liable, unless it be shown to the jury affirmatively that ordinary care was not taken by the deceased to avoid the accident.</p> <p>By defendants. — 1. There is no evidence that the accident was caused by the sole negligence or want of ordinary care on the part of defendants acting by their servants, and therefore the verdict must be in favour of the defendants.</p> <p>2. The presumption of law is against negligence, which must be proved as averred. The mere happening of the accident raises no presumption of carelessness on the part of defendants.</p> <p>3. The conductor of the train, engaged in the prosecution of the ordinary and lawful business of the defendants, is not bound to attend to or anticipate the uncertain movements of persons who are not supposed, especially at so late an hour of the night, to be loitering near a railroad track.</p> <p>4. Both parties having the right to pursue the respective highways, were nevertheless bound to exercise this right as to avoid collision, an obligation as binding on the deceased as on the defendants.</p> <p>6. If the deceased, by the. exercise of ordinary prudence and care, could have avoided the collision, or if his death be attributable in any degree to his own negligence or rashness, the plaintiffs cannot recover.</p> <p>6. When a railroad track and another road cross each other at grade, and a near train is rapidly approaching, it is the duty, and common prudence and ordinary care require, of persons whose physical movements are easily and instantly controlled by the mere exercise of their own volition, to stop and allow the train to pass. If they fail to do so, and injury thereby enures to them, they cannot recover.</p> <p>7. The irresponsibility of a railway company for all but negligence or wanton injury is a necessity of its creation. A train must make the time necessary to fulfil its engagements with the post-office and the passengers, and it must be allowed to fulfil them at the sacrifice of secondary interests put- in its way, else it could not fulfil them at all.</p> <p>8. Whatever prudent men would do, or forbear to do, under the circumstances of the case, is the rule by which the deceased was bound to regulate his conduct.</p> <p>9. One party is not bound to guard against the want of ordinary care on the part of another. The right to presume that ordinary care will be practised is mutual.</p> <p>The learned judge affirmed the 3d and 4th of plaintiffs’ points, and refused to charge as requested in defendants’ 1st point; and added, that it was alike for the jury to say whether the defendants, or the deceased, or both were or were not guilty of negligence, imprudence, or want of ordinary care.</p> <p>Under these instructions there was a verdict and judgment in favour of plaintiffs for $2300. Whereupon the defendants sued out this writ, averring that the learned judge before whom the case was tried, erred,—</p> <p>1. In affirming the plaintiffs’ 3d point.</p> <p>2. In affirming the plaintiffs’ 4th point.</p> <p>3. In refusing to charge the jury as requested in defendants’ 1st point.</p>

<p> Contract for transfer of notes, as security for running account, construed. —Maker of note not relieved from liability to endorsee, by error of bank officer in omitting to apply funds in bank to payment of note when presented by holder. </p> <p>1. A coal dealer agreed, -with a mining firm from whom he was to purchase coal, that he would hand over the notes and cash received therefor monthly, to be credited on" account: the paper received for coal sold by him was if protested taken from the general account, passed to a protest account, and each month's protest account credited to the firm on his books together with coal sold: when the notes were made good by him he took them up and looked to the drawers for payment: otherwise the notes remained charged to him, and were retained as security in the hands of the firm. In an action by the firm (who were endorsees of a note thus transferred and protested), against the drawers after the failure of the payee, who was largely indebted to them on a general account; the jury were instructed that the note was given to the firm by the payee for indebtedness existing at the time of the transfer, and that if that indebtedness was afterwards paid by him to the firm, upon such payment the ownership of the note reverted to the payee, and a subsequent payment to him by the makers was good as a defence to the action by the endorsees.</p> <p>Held, that the instruction was error: for, under the arrangement between the parties, the note was transferred as a security for the whole account, including what coal had been or might be furnished: and hence, while any indebtedness existed, the plaintiffs had the right to hold the note as a security, and the payment by the makers to the payee did not discharge them from liability thereon.</p> <p>2. Held also that the makers of the note wore not discharged from liability by its presentment at bank, where there were sufficient funds to meet it when due, if by mistake of the bank officers, payment was refused and the note protested for non-payment.</p>

<p>Appeal from the Common Pleas of Northampton county.</p> <p>This was an appeal by the Corporation of the Borough of Easton, McEvers Eorman, Thomas Deshler, and ten others, from the decree of the court below, distributing the proceeds of the sheriff’s sale of the property, franchises, and effects of the West Ward Water Company of Easton.</p> <p>The facts of this case are so fully set forth in the opinion of the learned judge of the Common Pleas, that no other statement is necessary. The commissioners who were appointed to distribute the fund in court made an elaborate report, against the confirmation of which exceptions were filed for the corporation of Easton, and other lien-creditors.</p> <p>The court below (Maynard, P. J.) sustained the report in part, and reversed it in the distribution of a portion of the fund, for the reasons contained in the following opinion:—</p> <p>“By an Act of Assembly, approved the 4th day of May 1854, the West Ward Water Company was incorporated. The object of the incorporation was ‘for the purpose of introducing into that portion of the borough of Easton lying west of a newly laid out street called Sitgreaves street, and into such portions of Forks township as are adjacent, a supply of pure water for the use of the inhabitants of the same.’</p> <p>“The 7th section of the Act provides: ‘That it shall be the duty of the president and managers, as soon as may be, after the company shall so organize for the purpose of introducing water into said West Ward, to purchase and hold in fee simple, or for any less estate, any spring or springs, stream or streams of water, or any water power or powers near or convenient to said West Ward, or any lands, tenements, or hereditaments to which any spring or springs, stream or streams may be appurtenant, with full power, the same or any part thereof in the whole of their works, to grant, bargain, sell, alien, convey, mortgage, pledge, charge, encumber, and devise and dispose of at their will and pleasure, and shall convey said water into the said West Ward and Forks township by means of pipes, trunks, aqueducts, or in such manner as they shall deem most advisable or convenient, and should they find it necessary to provide proper cisterns, or reservoirs, for the reception thereof, and for these purposes may enter into such land and enclosure as may be necessary, and to dig, ditch, and lay pipe through the same, the company doing as little damage as possible to private property.’</p> <p>“ Section 10th of said Act provides: ‘ That in case the owner or owners of any land, through or upon which such ditch, pipes, trunks, aqueducts, reservoirs, and cisterns are laid and constructed, or the owner or owners of land upon which it may be found necessary to enter for the purpose of digging, taking, and carrying away clay, gravel, or other material necessary for the purposes aforesaid, or the owner or owners of any spring or springs, stream or streams of water, which may be used and appropriated by the company or any person who may be injured, &c., can not agree with said company upon the damages or compensation to be paid to the said owner or owners, person or persons, it shall and may be lawful for the parties to appoint, or if the parties cannot agree, then, on application the party or person complaining, for the Court of Common Pleas of Northampton county to appoint three disinterested and suitable persons to ascertain and report to said court on oath or affirmation, what damages, if any, have or will be done by the said company, which report having been returned and confirmed by the court, judgment shall be thereon entered and execution be issued therefor with costs as in other cases : Provided, That either party may appeal from the report or award to the court within twenty days after the same shall have been reported in open court, in the same manner that appeals are allowed from the award of arbitrators.’</p> <p>“ The West Ward Water Company was organized in pursuance of this Act of Assembly, erected their works and introduced water into said WestWard of the borough of Easton and vicinity, as authorized by said act, for the purpose of constructing a suitable reservoir to supply water at all times to the inhabitants; the said company entered upon, took, and appropriated to their exclusive use, a certain lot of ground containing five acres and one hundred and fifteen perches, and on which the company constructed their reservoir. This lot of ground was the property of John ITerster, and was taken by the company in the following manner : On the 31st January 1856, the company presented their petition to the Court of Common Pleas of Northampton county setting forth their Act of incorporation, ‘and that in selecting a place for their reservoir find it necessary to occupy this lot of ground. That they have been unable to obtain a title for the same, or agree upon the amount of damages to be paid for the appropriation thereof,’ and praying the court to appoint viewers to ascertain the damages, &c., in pursuance of the provisions of the 10th section of said Act. Viewers were appointed by the court, but before the viewers could meet to discharge the duties of their appointment, John Herster the owner died, having by his will devised this lot of ground to William Butz. On the 21st day of April 1856, the said water company presented a second petition to the court setting forth the facts recited in the first petition, and the death of the said John Herster, and that the title to the said lot of land had by his will become vested in William Butz; that the company was unable to agree with the said Butz for the price of the land or damages. That they have found it necessary to commence the construction of their reservoir, and on the 14th of March 1856 had tendered to the said William Butz a bond with adequate security in the penal sum of $3000, conditioned for the payment of damages, &c., for taking the said lot of land, which bond the said William Butz refused to receive. The court appointed viewers in accordance with the provisions of the said Act, who on the 26th April 1856 made their report to the court, which was filed on the same day, in which they assessed the damages sustained by William Butz as $1526.25. From this report of damages Mr. Butz appealed on the 8th of May 1856. The case was then pending in court until May 4th 1860, when by agreement of the parties the damages for taking the lot were fixed at the sum of $2141.51, for which sum the company gave judgment with stay of execution until plaintiff filed a deed for the property. Prior to March 1860, the West Ward Water Company were indebted to insolvency, and in order to enable the company to secure and pay their creditors, to the extent of their ability, including all their estate, real, personal, and mixed, and also their franchises, the legislature by an Act, approved the 20th day of March 1860 (see Pamph. Law 226), authorized ‘The West Ward Water Company to execute a mortgage or mortgages of all their estate, real, personal, and mixed, and of all their chartered and corporated franchises, rights and privileges, to those persons, who, as endorsers, sureties, or guarantors for said West Ward Water Company, have paid or are liable to pay the bond fide indebtedness of said company, and the directors shall have power to ascertain and designate the said mortgages,- &c., and the amount for which they shall be given.’</p> <p>“The second section provides that, ‘ at any judicial sale which shall be had under said mortgage, all the aforesaid estate, franchises, rights and privileges, described and set forth in said mortgage, shall pass to and vest in the purchaser or purchasers at such sale, in the same manner and with the same effect, as the same were held and enjoyed theretofore by the said mortgagors.’ Section 4 provides, ‘at any such sale made as aforesaid, the said corporate estates, rights, privileges, and franchises shall be sold clear of all encumbrances, and the purchase-money shall be applied to the liens in order of priority according to law, and under the direction of the court if required by the parties interested.</p> <p>“ By the 3d section of said Act the purchasers are authorized to organize a new company, under the name of ‘The Lehigh Water Company.’</p> <p>“ By virtue of the authority, and in pursuance of the provisions, of this last-recited Act of Assembly, the West Ward Water Company, on the 11th day of May 1860, executed a mortgage to Thomas Deshler and others therein named, of ‘all their waterworks, all their lands and tenements, and buildings; all their dams, cisterns, basins, and reservoirs; all their springs and streams of water ; all their easements, rights of way, and privileges in and upon the real estate of other persons; all their aqueducts, water-pipes, ditches, pumps, conduits, trunks, engine-house, steam-engine, machinery, fire-plugs, stop-cocks, and appurtenances, and all their corporate rights, franchises, powers, privileges, and immunities.’ The consideration of this mortgage was to secure a debt of $6554.50, which the mortgagees had paid and incurred for the company, as ‘ endorsers, sureties, or guarantors.’</p> <p>“ A scire facias was issued upon this mortgage to August Term 1860, and judgment obtained on the same, 31st July 1860, for the sum of $6641.94, on which a levari facias was issued, and on the 27th day of August 1860, the sheriff sold all the property included in the mortgage, in the aggregate for the gross sum of $40,030, which, after deducting the sheriff’s costs on the sale, left for distribution the sum of $39,755.07.</p> <p>“ The estate, mortgaged premises, property, rights and privileges, and franchises of the company, are described in the levy as consisting of seven separate parcels numbering from one to seven inclusive. The parcels 1, 2, 3, 4, are separate lots of land with the improvements on the same described. No. 5 consists of a quantity of iron pipe now laid and certain fixings to the same described.</p> <p>“ No. 6 consists of a quantity of cast-iron pipe now laid in certain streets and other localities in the borough of Easton, and No. 7 consists of the dams, cisterns, basins, reservoirs, springs, streams of water, all the easements, rights of way, &c., upon the real estate of other persons, and with all the appurtenances of the works of the company, and all their corporate rights, franchises, privileges, and immunities.</p> <p>“ The liens against the property and now on the fund, the proceeds of sale are as follows: 1st, a mortgage given by the West Ward Water Company to the president and managers of the Easton Delaware Bridge Company, on lots No. 2, 4, and 6 (before referred to), dated June 18th 1856. The amount due on this mortgage at the date of the sheriff’s sale was $8813.33. It being the oldest lien, and the amount undisputed, was paid by the sheriff to the parties entitled. The balance of the proceeds $30,936.74, was paid into court by the sheriff, in obedience to a rule on him for that purpose.</p> <p>“ The 2d lien is a mortgage given by the West Ward Water Company to the Easton Water Company, dated June 18th 1856, and upon the same property as that described in the first mortgage above named. This mortgage was given to secure the sum of $15,000.</p> <p>“The 3d lien is a mortgage given by the West Ward Water Company to the corporation of the borough of Easton, in the sum of $20,000, dated November 25th 1857. This mortgage was given on all the goods, chattels, franchises, and effects of the company, and also all that tract of land on the Nazareth road on which the reservoir is now being constructed.</p> <p>“ This lot of land is described in the sheriff’s levy as lot No. 3, and known in this case as the Butz lot.</p> <p>“The mortgage to the Easton Water Company does not include this lot No. 3, consequently is no lien on that part of the fund raised from the sheriff’s sale of that lot, which was ascertained by the commissioners appointed by the court to report the facts and make distribution, to have been $2857. The mortgage to the borough of Easton does include the Butz lot, but was executed before the West Ward Water Company had acquired title to the Butz lot, but they had without consent entered into possession of the lot prior to the date of this mortgage, and had commenced the construction of the reservoir thereon, and on the 14th of March 1856, tendered a bond to Mr. Butz in the sum of $3000, with two sureties. , Mr. Butz, as before stated, refused to receive this bond, and the commissioners to report the facts, have found that the bond thus tendered to Mr. Butz for the lot was not adequate security therefor. It was agreed between the second and third mortgage creditors that the amount of the fund to which they should be found entitled, should be divided between them in the proportion of 54.9 per cent, of the borough of Easton, and 45.1 per cent, to the mortgage in favour of the Easton Water Company. The only remaining lien-creditors who claim a share in the distribution of the proceeds of the sale or fund in court, are Mr. Butz, on account of his title to lot No. 3, and his judgment for the same entered May 4th 1860, for $2141.51, and the Deshler mortgage under which the entire property and franchises were sold, dated 11th May 1860, in the sum of $6,554.55.</p> <p>“The question is, which of the liens are entitled to that portion of the fund in court raised from the sale of lot No. 3 (the Butz lot), which the commissioners found to be $2857. In the distribution they appropriated the sum of $2201.42 to the debt, interest, and costs of the Butz judgment, and the balance $445.79 to the mortgage of Thomas Deshler and others.</p> <p>“ To the distribution thus made by the commissioners, exceptions were filed in^ behalf of the borough of Easton. 1st, in awarding any portion of the fund to the Butz judgment; 2d, in awarding any portion of the fund to the mortgage of Thomas Deshler et al.; 3d, in not distributing the same to the borough of Easton mortgage and the Easton Water Company mortgage, to be divided between them according to the pro rata agreed upon between said mortgage-creditors; and 4th, in not allowing the bill of costs for witnesses, &c., attending before the commissioners in behalf of the borough of Easton.</p> <p>“ Exceptions were also filed to the report of the commissioners in behalf of those claiming under the bond and mortgage to the Easton Water Company. Those exceptions are the same in substance as the first and third exceptions filed in behalf of the Borough of Easton.</p> <p>“ The Act of Assembly, as we have seen, in pursuance of which the mortgage was given, and under which the sale of the property and franchises was made, provides, ‘the corporate estate, rights, privileges, and franchises shall be sold clear of all encumbrances, and the purchase-money shall be applied to the lien in order of priority according to law and under the direction of the court.</p> <p>“ The first question then to be determined is, whether the Butz lot (No. 3) was part of ‘the corporate estate, rights, privileges, and franchises of the West Ward Water Company at the date of the mortgage, the 11th May 1860 ?’</p> <p>“If this question can be answered in the affirmative the case will be free from difficulty, as the Act declares the ‘ estate, rights,’ &c., shall be sold clear of all encumbrances, and the money applied to the lien in order of priority. What was the estate, right, privilege, and franchise of the West Ward Water Company to this Butz lot No. 3 ?</p> <p>“ In order to answer this question, we must look to the Acts of Assembly defining the rights and duties of the company, and the records of the courts framed in pursuance of those rights and duties.</p> <p>“By the Act of incorporation of the West Ward Water Company was authorized to introduce into that portion of the borough of Easton and adjacent portions of Forks township, ‘ a supply of pure water for the use of the inhabitants of the same, ancl for that purpose it was the duty of the company to purchase and hold in fee simple, or for any less estate, springs, streams of water, water-powers, or any land, tenements, or hereditaments to which springs, streams, or water-power might be appurtenant, and convey the water into said West Ward,’ &c., in such manner as they shall deem most advisable and convenient, ‘ and should they find it necessary, to provide for proper cisterns or reservoirs for the reception thereof.’ All statutes in which the public are interested, and particularly those which relate to public health and convenience, should receive a liberal construction.</p> <p>“ It was by authority of the provision of the statute above recited, that the West Ward Water Company entered upon and took possession of the William Butz lot, and constructed the reservoir thereon.</p> <p>“ We think this statute gave the company the right, in subordination to the 4th section of the 7th article of the Constitution, to take this lot owned by Mr. Butz, if the company found it necessary to do so, in order to carry out the purpose for which they were incorporated. This section of the Constitution provides, that ‘the legislature shall not invest any corporate body or individual with the privilege of taking private property for public use, without requiring such corporation or individual to make compensation to the owner of said property, or give adequate security therefor before such property shall he taken. But our Supreme Court have decided, that in such cases it is not necessary that the compensation to the owners shall be actually ascertained and paid before the property is appropriated; but that it is sufficient if an adequate remedy is provided by which he can obtain compensation without unreasonable delay: Yost’s Report, 5 Harris 524; Borough of Harrisburg v. Crangle, 3 W. & S. 460; also 10 Barr 97, 1 Barr 132, 218, 6 W. & S. 113. This 4th section of the 7th article, and also the latter clause of the 10th section of the Constitution, it will be observed are disabling provisions. See Harvey v. Thomas, 10 Watts 66. There are no other limitations to the power of the state over private property than those that are placed upon it by the Constitution: Monongahela Navigation Company v. Coons, 6 W. & S. 113, 114. The injunction of the Constitution on the power of the legislature is, that they shall not give a corporation the privilege of taking private propierty for public use without compensation or adequate security, This injunction being removed by compensation or security, the right of eminent domain may be fully exercised by the legislative power. The question then recurs, whether the West Ward Water Company have complied with the provisions of law in taking this lot of land from Mr. Butz; and, if so, when did the company take it, within the meaning of the Constitution and the law as settled by the decisions of our Supreme Court.</p> <p>“ The company entered into the lot without right, having neither made compensation nor given adequate security therefor. They next tendered a bond; the security was inadequate, and it was not accepted by Mr. Butz. Viewers were appointed, who reported the damage at §1500. Mr. Butz was dissatisfied, and appealed from their decision to the court. The cause was then pending in court without compensation and without adequate security until the 4th of May 1860, when the parties ‘agreed upon the damages or compensation to be paid to the owner (Mr. Butz) as provided in the 10th section of the Act of 4th May 1854, at which time the company gave, and Mr. Butz received, the judgment, §2141.51, as adequate security for the damages or compensation’ for the lot of land. The damages having then been agreed upon, and security by the lien of the judgment, the title to the lot vested in the company by operation of law. The statute of incorporation -was potent to vest the title the moment the constitutional impediment was removed, by virtue of the right and power of eminent domain, which is defined by Chancellor Kent to be ‘the inherent sovereign power of a state, which gives to the legislature the control of private property for public uses:’ 2 Kent’s Com. 339 n. Our land titles are derived from the state, and are granted subject to the right of eminent domain. This vesting of the title of private property in the company for public purposes by operation of law, constitutes the ‘ taking and appropriating within the meaning of the constitution.’ This judgment in favour of Mr. Butz, as we have seen, was not compensation, but only security for the damages. And the lien, both at law and in equity, attached the moment the title vested. This lien constitutes the adequacy of the security on which the title vested in the company. The lien of this judgment has priority over all the other liens as against the Butz lot. First in equity, because given to secure the consideration-money for the lot. In law, because prior in date to any other encumbrance on the legal title of Mr. Butz, and the 10th section of the Act of incorporation authorizes a judgment to be entered for the ‘damages or compensation’ in such cases, and that execution be issued therefor as in other cases.’</p> <p>“ It is true that the Easton Water Company mortgage is older, but it does not include the Butz lot. The borough of Easton mortgage is prior in date and included this lot, but at the time it was executed the West Ward Water Company had not acquired title to the Butz lot. It is argued that as the West Ward Water Company afterward acquired the title to this lot, such title when acquired enured to the benefit of the mortgage of the borough of Easton.</p> <p>“ This proposition would be true if the company had paid Mr. Butz for the lot when it was taken. But instead of paying, the company only secured the consideration by the lien of this judgment; therefore, the title of this lot vested in the company when taken subject to the lien of this judgment which gives it priority.</p> <p>“It has also been argued that this judgment is not a lien against the land or estate of the company, because the lands of a corporation which are necessary for the enjoyment of the franchise, are not liable to seizure and sale upon execution. But it does not follow because the real estate of a corporation is not liable to seizure and sale on execution, that therefore a judgment against such corporation is not a lien upon this real estate. The 1st section of the Act of 26th March 1827, Dun. Digest 672, pi. 5, declares, that4 all judgments entered in any court of record in this Commonwealth, or-revived in the manner prescribed by this Act or the Act to which this is a supplement, shall continue the lien on the real estate of the defendant for the term of five years from the day of entry or revival thereof.’</p> <p>“ In the case of Auwerter v. Mathiot, 9 S. & R. 402, the late Chief Justice Tilghman states it as a rule resulting from a connected series of decisions, that £by the law of Pennsylvania all the real estate of the debtor, whether legal or equitable, is bound by a judgment against him.’</p> <p>“ It is true that the lands of a corporation which are necessary for the enjoyment of their franchises, cannot be taken and sold upon execution. The remedy is by sequestration, as provided by the Act of 16th June 1836, as was decided in Susquehanna Coal Company v. Bonham, 9 W. & S. 27. But the remedy by sequestration is inapplicable here, because the property was sold by authority of law, the Act of 20th March 1860, and the proceeds ara in court for distribution as provided in that Act. These principles, applied to the facts in this case, award from the proceeds of the sale of the Butz lot the payment of his judgment and costs, which lien secured the consideration for which this lot was taken by the company.</p> <p>“ The next question to be disposed of is, which lien is entitled to the balance of the proceeds arising from the sale of the Butz lot after deducting the amount of his judgment and costs ?</p> <p>“ The commissioners awarded this balance to and in payment of the mortgage of Thomas Deshler et al., dated May 11th 1860, and on the ground ‘that the West Ward Water Company had not acquired title to this Butz lot at the date of the execution of the mortgage from the company to the borough of Easton,’ which was executed on the 26th November 1857, and included this Butz lot with other property of the company. It will be recollected that the West Ward Water Company took possession of this Butz lot prior to March 1856, and then commenced the construction of the reservoir thereon, and that they continued in the possession up to the day of the sheriff’s sale, August 27fh 1860. During the time they so held the possession, a large sum had been expended in the construction of the reservoir, which 'was then unfinished. As we have seen, the company had the right to take this lot under their charter upon the condition of making compensation or giving adequate security therefor. Could the company mortgage or pledge this ‘right to take private property, or, in other words, their right to take the Butz lot ?’</p> <p>“ The 3d section of the Act of 5th of May 1855, provided that it shall be lawful for the West Ward Water Company ‘to borrow any sum of money not exceeding $20,000, and to secure the payment of the sum in the same manner as is provided in the 13th section of the Act to which this is a supplement: Pamphlet Laws of 1855, 449.</p> <p>“ The section of the Act referred to enacts, that the said company shall have power to borrow money to be applied to the prosecution or improvement of their works, ‘ and to pledge their goods or chattels, property, franchises, and effects by mortgage or otherwise for security and repayment of the sum.’ Under the provisions of these Acts of Assembly, the mortgage to the borough of Easton was executed to secure the sum of $20,000, ‘on all the goods, chattels, franchises, effects of the West Ward Water company whatsoever and whensoever (describing some of the property more particularly), and also all that tract of land on the Nazareth road on which the reservoir is now being constructed (the Butz lot).</p> <p>“It is evident from these statutes that the company had authority in law to mortgage their property both real or personal, and also all their corporate rights and franchises, for the repayment of the moneys borrowed to construct their works. This mortgage was, therefore, a lien upon all the right, title, and interest which the West Ward Water Company had acquired to this lot of land prior to the date of the mortgage, and is analogous to a lien entered against the equitable title acquired by a vendee of land under articles of agreement. In Waters’s Appeal, 11 Casey 523, Justice Woodward, in delivering the opinion of the court, says: ‘ It has been many times said and decided in Pennsylvania, that a judgment against the equitable estate, which a vendee holds under articles of agreement for the sale and purchase of land, attaches to and binds the legal estate the instant that it vests in the vendee:’ Richter v. Selin, 8 S. & R. 425; Lynch v. Dearth, 2 Penn. Rep. 110; Episcopal Academy v. Friezr, 2 Watts 16; Foster’s Appeal, 3 Barr 80; Lyon v. McGuffey, 4 Id. 128. ‘In all such cases effect is given to the judgment-lien, without revival against a subsequently-acquired interest of the debtor. This class of cases form exceptions to the general principle, that limit liens to such estate as the debtor held at the date of their entry.</p> <p>“ A mortgage is in form a conveyance by deed, and although it is only a security for money, yet it vests the title to the estate to be held upon condition and as a means of enforcing payment; and for that purpose ejectment may be sustained on it, and after-acquired title by the mortgagor will enure to the benefit of the mortgagee to increase and perfect his lien, upon the same principle that after-acquired title by a grantor who had an imperfect or no title at the time of his grant, wili enure to the benefit of his grantee. This principle was decided in Browns. McCormick, 6 Watts 60. Justice Rogers says it is a principle too well settled to admit of dispute. When a person convoys land in which he has no interest at the time, but afterwards acquires a title to the same land, he will not be permitted to claim in opposition to his deed from the grantbi, or any person claiming title from the grantee. The operation of the principle is, that immediately on the execution £ of the deed (by which the grantee obtained title) it enures to the benefit of the grantee of the land by virtue of the previous deed.’ The same principle was decided in Jackson v. Ball, 1 Johns. Cases 90. Also Jackson v. Murray, 12 Johns. Rep. 201, that ‘if a man makes a lease of land by indenture which is not his, or levies a fine of an estate not vested, and he afterward purchases the land, ho shall notwithstanding be bound by his deed.’ Also Jackson v. Stevens, 18 Johns. Rep. 316, the Court say, ‘ the title subsequently acquired will enure to the benefit of his grantee, and the confirmation of liis title.’</p> <p>“ We feel constrained by these principles to hold that the right of the company to take this lot, and whatever equitable interest the company had acquired in it, by the expenditure of money in improvements previously to the date of the mortgage to the borough of Easton, were bound by the lion of that mortgage, and that this mortgage-lien attached to and bound the legal title to the lot the instant the title vested in the West Ward Water Company, the mortgagor, subject however to the prior lien of the Butz judgment. It follows, therefore, that the mortgage to the borough of Easton has priority over the mortgage to Thomas Deshler et al., and as against the Deshler et al. mortgage is entitled to the balance of the fund raised from the sale of the Butz lot in distribution. The only remaining question is whether the borough of Easton should be allowed from the fund in court her ‘bill of costs for witnesses, subpoenas,’ &c., incurred on the hearing before the commissioners.</p> <p>“ This is a question which rests mainly in the discretion of the court in cases of this class and in awarding costs. Courts take into consideration the circumstances of the particular case before them, or the situation or conduct of the parties, and exercise their discretion in reference to those points: Brightly 548-9. We think it would not be equitable to take these costs from the fund in the first instance, as there were no questions of fact, in reference to the first lien, which required witnesses to establish or controvert. This remark applies to all the liens prior to the Butz judgment. In contesting the validity and priority of this judgment, the exception failed, and is, therefore, not entitled to costs as against that lien-creditor. But the borough of Easton has been successful in the contest as against the Deshler et al. mortgage, and is meritorious in establishing her title to so much of the fund as has been awarded to her; and as she holds 45.1 per cent, of the sum awarded to her in trust for the Easton Water Company mortgage under the agreement of record between the counsel representing those mortgage-creditors, and as the Easton Water Company could have had no claim on or to this part of the fund except through the lien of the mortgage to the borough of Easton, it is equitable between these creditors that the taxable costs in this case (after deducting the Butz judgment) should be paid and deducted from the balance of the funds arising from the sale of Lot No. 3, before dividing the remainder of that balance according to the pro rata agreed upon between them. The report of the commissioners is correct, except so far as relates to the sum of $455.79 awarded by them to the mortgage of Thomas Deshler and others, which is error and is set aside, and the fund in court is distributed according to the following decree:—</p> <p>“ And now, to wit, February 3d 1863, this cause came on to be heard at an adjourned term of this court, and was argued by counsel, and,, therefore, upon due consideration thereof, it is ordered, adjudged, and decreed as follows, of the fund in court for distribution at the date of the filing of the commissioners’ report, to wit, 29th of August 1862, namely, the sum of $33018.15 is distributed as follows, to wit:—</p> <p>“ To prothonotary’s commissions, . . $156.18</p> <p>“Borough of Easton, per agreement, . 16374.52</p> <p>“Assignees of Easton Water Company, . 13443.08</p> <p>$29973.78</p> <p>“Balance yet to be distributed, 3044.37</p> <p>“Deduct costs and expenses of audit.</p> <p>“ Wm. Mutchler, prothonotary, pd. . 4.25</p> <p>“ IT. F. Steckel, late prothonotary, . 3.66</p> <p>“Advertising, . 5.00</p> <p>“ Court-house, M. West, 5 days, 5.00</p> <p>“ “ John Maxwell, 5 days, 10.00</p> <p>“ W. Mutchler, recording report, 8.00</p> <p>“ Auditors, each $100, 300.00</p> <p>“ Drawing report, . 50.00</p> <p>385.91</p> <p>2658.46</p> <p>“ To David Heller, collector, . . . 1.25</p> <p>“ Wm. Butz judgment, .... 2141.51</p> <p>“ Interest to 27th August 1860, . . 40.33</p> <p>“ Costs,.......19.58</p> <p>2202.61</p> <p>455.79</p> <p>“ Borough of Easton hill of costs on audit, 7'7.45</p> <p>$388.34</p> <p>“ This balance is awarded to the borough of Easton mortgage, and is to be divided with the Easton Water Company mortgage assignees according to the fro rata agreed upon.”</p> <p>This appeal was then entered by the appellants, for whom the following error was assigned :—</p> <p>The court erred in distributing and awarding out of the fund in court the sum of $2201.42 to William Butz, in payment of his judgment, interest, and costs, and in not distributing that sum to the corporation of the borough of Easton, and to those claiming under the mortgage of the Easton Water Company, in the proportion of 54.9 per cent., to wit, $1208.58, to the former, and 45.1 per cent., to wit, $992.84, to the latter.</p>

<p>What notice to sue will discharge surety. — Married woman entitled to personal notice. — Notice to husband not sufficient.</p> <p>1. A surety upon a note is not discharged by notice to the holder to sue the principal debtor, unless'the notice and the evidence of it are so clear and distinct that the moaning of the surety can be at once apprehended without explanation or argument.</p> <p>2. A married woman is entitled to such notice on account of her separate estate, as any other person would be, either from the party interested or some one authorized by him to give notice, and notice to the husband alone, without more, is not notice to the wife; though if intended for the wife and delivered to the husband for her, it is a question of service merely.</p> <p>3. Where the proof of notice relied on to discharge a surety from a note held by a married woman, was the admission of the husband made after the alleged notice, that the surety had called upon him and told him to bring suit upon the note immediately or he -would be no longer responsible as surety, it was held insufficient: so also were the admissions of the wife that her husband had informed her of his conversation with the surety as to what he wanted him to do with the note, not communicated to her as a warning or as notice from the surety, nor by the husband as his constituted agent.</p> <p>4. It was therefore held error to instruct the jury that if all the testimony on the subject of notice was believed, in point of law the notice would be sufficient to discharge the defendant: they should have been instructed that it was insufficient.</p> <p>5. Upon the question of the solvency of the principal debtor, the attention of the jury must be restricted to the time when the notice was given to sue Out the note, and not to the timo when it matured.</p>

<p> Road laws in Erie county as to competency of jurors, construed. </p> <p>1. Under the Act of 26th March 1846, relative to the road laws of Erie county, as amended by the Act of 15th April 1857, the road commissioners can challenge jurors on the ground of interest only.</p> <p>2. Jurors who had served in the same case upon a former trial, and who were otherwise disinterested and reputable, held competent, under the act as amended. ></p>

<p> Appropriation of the proceeds of policy of insurance, assigned, as collateral security. </p> <p>One indebted by mortgage to F.,N. & Oo. arranged with G. & M. that they should pay one-third thereof and take an assignment of it to that extent. Before this payment, the debtor gave to G. & M. his bond for tlie amount, assigned to them a policy of insurance, and ho and his wife executed a mortgage upon her separate estate to them, as collateral securities for the amount to be advanced. Five days after the execution of her mortgage, and two after the assignment of the policy, they paid the one-third of the original mortgage and took an assignment from F., N. & Co. After the destruction of the property insured, G. & M. received the amount of the loss as adjusted, and sought to apply it to an antecedent debt of the husband’s, and not in discharge of the wife’s mortgage. On scire facias thereon, it was held,</p> <p>1. That, under the circumstances, the assignment of the policy was collateral to the bond of the husband, and to secure the debt for which his wife was security by mortgage upon her own estate :</p> <p>2. That it was error in the court, after the jury in the action upon the mortgage had found their verdict for the defendants, thus in effect deciding that the assignment of the policy was made as collateral security for the debt for which the wife was surety, to decide, upon a point reserved, that there was no appropriation of the policy, by the parties, and that it must be applied to the prior debt.</p>

<p>Appeal from the Orphans’ Court of Philadelphia.</p> <p>This was an appeal by J. W. Williams, from the decree of the court below, on the distribution of the estate of George W. Edwards, deceased. The appellees are the executors of deceased..</p> <p>George W. Edwards died August 27th 1861. By indenture, bearing date the 13th of April 1853, Catherine Keppele had conveyed to him in fee, a lot of ground in the city of Philadelphia, reserving a yearly rent of $462, payable in even and equal portions on the first days of April and October in every year thereafter for ever., The deed provided that on default of payment the grantor, her heirs and assigns, might distrain for the rent, and if sufficient distress could not he found on the land, might re-enter upon the same as though the said indenture had never been made. Then came the following covenant :—</p> <p>“ And the said George W. Edwards, for himself, his heirs, executors, administrators, and assigns, doth covenant, promise, and agree to and with the said Catherine Keppele, her heirs and assigns, by these presents, that he the said George W. Edwards, his heirs and assigns, shall and will well and truly pay, or cause to be paid to the said Catherine Keppele, her heirs and assigns, the aforesaid yearly rent or sum of four hundred and sixty-two dollars, lawful money aforesaid, on the days and times herein-before mentioned and appointed for payment thereof.”</p> <p>' It was also agreed that the grantee, his heirs or assigns, should within one year erect on the said lot such buildings as should be necessary fully to secure the said yearly rent. The deed contained the following proviso:—</p> <p>“Provided always, nevertheless, that if the said George W. Edwards, his heirs or assigns, shall and do at any time hereafter pay, or cause to be paid to the said Catherine Keppele, her heirs or assigns, the sum of seven thousand seven hundred dollars, lawful money as aforesaid, and the arrearages of the said yearly rent to the time of such payment, then the same shall for ever thereafter cease and be extinguished, and the covenant for payment thereof shall become void;” whereupon the grantor, her heirs or assigns, are to execute a release. Then followed a covenant for quiet enjoyment.</p> <p>By two other indentures of the same date, Catherine Keppele conveyed two other lots of ground in the city of Philadelphia to said George W. Edwards, reserving yearly rents of $474 and $492, the two latter indentures being in other respects identical with the first.</p> <p>The buildings to secure the rent were erected, and the rent was paid up to Mr. Edwards’s death. A claim was put in before the auditor on behalf of the heirs of Mrs. Keppele for $2142, due October 1st 1862, arrears of rent on the above-mentioned lots, which had accrued after Mr. Edwards’s death, out of the fund in the hands of the executors, which was made up entirely of personal property and the income of real estate. The auditor disallowed the claim, and the Orphans’ Court affirmed his decision. The appellant is one of the devisees and heirs at law of Catherine Keppele.</p> <p>■ George W. Edwards, in his last will and testament, provided as follows:—</p> <p>“ I, George W. Edwards, of the city of Philadelphia, do make this my last will and testament.</p> <p>“ In the first place, I direct my just debts and funeral expenses to be fully paid and satisfied.</p> <p>“ Secondly. I give and bequeath to my dear wife, Elizabeth R., all my furniture, books, silver ware, watches, jewelry* paintings, and all articles in use in my dwelling, for her own absolute use.</p> <p>“Thirdly. I give, devise, and bequeath all the rest, residue, and remainder of my estate, real and personal, whatsoever and wheresoever, to my executors hereinafter named, and the survivors or survivor of them, and the heirs, executors, administrators, and assigns of such survivor, upon the following trusts nevertheless, that is to say, upon trust to hold, manage, let, and demise the real estate, and to hold, invest; re-invest, and keep invested my personal estate, and to collect and receive the rents, incomes, and profits thereof, and out of the same, in the first place, to pay and discharge all taxes, charges, ground-rents, and all interest upon encumbrances on my said estate, together with all charges and expenses incident to the management and reasonable repair of the same, and to this trust. And upon the further trust, after paying the said charges, to apply one-fourth of the net income of my whole estate as it shall accrue, and as soon as it shall amount from time to time to a reasonable sum, to the payment and discharge of my debts and encumbrances upon my real estate.”</p> <p>These trusts are to continue till the death of his wife, and if she dies before his youngest child comes of age, then till his youngest child comes of age. The executors are also empowered to sell and buy real estate.</p> <p>The question before the auditor and the court below was, whether personal property in the hands of the executors should be appropriated to the payment of arrears of ground-rent, falling due after the death of Mr. Edwards.</p>

<p>Proper mode of organizing the Common Council of Philadelphia.— Authority of courts to annul wrongful organization and, restrain wrong by injunction.</p> <p>1. The courts of Pennsylvania have authority, under the Constitution, to redress any wrong that may be committed within the proper territorial limits by any body of men, except only the supreme legislature of the state.</p> <p>2. The remedy by injunction extends to all acts that are contrary to law and prejudicial to the interests of the community, and for which there is no adequate remedy at law.</p> <p>3. Either of two conflicting bodies of men, claiming to hold one and the same office, at one and the same time, may apply to the court for an injunction to restrain the other from the usurpation of powers to which they are not legally entitled. In case of public corporations, the action of the attorney-general is necessary for the institution of proceedings for this purpose.</p> <p>4. In all bodies that are under law, where there has been an authorized election for the office in controversy, the certificate of election which is sanctioned by law or usage, is the primá facie written title to the office, and can only be set aside by a contest in the forms prescribed by law.</p> <p>5. On the division of a body that ought to be a unit, the test for ascertaining which of them represents the legitimate social succession, is which of them has maintained the regular forms of organization according to the law and usages of the body, or (in the absence of these), in accordance with the laws, customs, and usages of similar bodies in analogous cases.</p> <p>6. Where an ordinance of the Common Council of Philadelphia provided that the clerk and assistant clerk elect should continue in office until the organization of the new council and until their successors should be duly elected; and it appeared that at the organization of the new council there were present twenty-three members whose term had yet one year to run, among whom was the president of the preceding year; that the said president and clerks were in their usual places on the day and at the hour appointed by law for the organization of the new council: Held, that it was the right of said officers to organize the council by first calling the roll of the members whose term of office had not expired, and then requiring the new members to present their certificates that their names might also be enrolled; and that any interference with this mode of organization was irregular and improper. The right of members to seats in council must be ascertained in the manner prescribed by law.</p>

<p>Error to the Common' Pleas of Schuylkill county.</p> <p>This was an action of trespass on the case for Julia Spearen, by her next friend Thomas Spearen, against The Philadelphia and Reading Railroad Company, to recover damages for an injury done to her by the careless use of one of the defendants’ locomotives upon their railroad, when the plaintiff was attempting to cross it. There was a verdict and judgment for plaintiffs.</p> <p>The main errors assigned were, the permitting Mr. Bannan, who was of counsel in the cause, to read in evidence his notes of the testimony of James Geary, taken before the arbitrators in this case, against the objection that he had not taken down the whole of the cross-examination of the witness ; and the instruction given to the jury by the court below on the subject of the liability of the defendant under the circumstances of the case.</p> <p>The whole case will be found in the opinion of this court.</p>

<p> Validity of judgment given by husband to wife to secure her estate. ' separate </p> <p>A judgment admitted to be unobjectionable in point of honesty, u a husband to his wife to secure her separate estate in a question of distribution, will not be treated as void in law or equity joecause of the legal unity of the parties. The relation not appealing in the record, the court will not at the instance of creditors inquire into the fact of coverture, when no fraud is alleged. " / given by</p>

<p> Power of Oily Councils over railroads in the city. </p> <p>Streets and roads are public highways under the control of cities and towns, subject to the paramount authority of the Commonwealth.</p> <p>The constitutional provision against laws impairing the obligation of contracts discussed.</p>

<p> Right of Philadelphia and Reading Railroad Company to me of City Railroad on Broad street. </p> <p>The rights which the Commonwealth enjoyed under the Act of March 21st 1831, and the ordinance of the councils of.Philadelphia passed April 28th 1831, relative to the construction and continuance of a railroad from the intersection of Vine and Broad streets, down Broad to Cedar street, were transferred to the Philadelphia and Reading Railroad Company by the canal commissioners’ deed of December 27th 1850, and the Act of Assembly authorizing said sale; and nothing short of the exercise of the power of eminent domain by a taking, accompanied with compensation, can defeat the rights thus acquired by said company.</p>

<p>These were proceedings in the Supreme Court sitting in Equity, founded on bills filed against the City of Philadelphia by Thomas Branson and Joseph E. Kerbaugh.</p> <p>The bills averred the existence of private rights, which would be destroyed or injured by the removal of the City Railroad on Broad street, and prayed for injunctions to prevent it.</p> <p>The main principles discussed in the preceding cases were involved in these. Kerbaugh’s case was in effect decided by that of The Southwark Railroad Company v. The City of Philadelphia.</p> <p>The bill of Branson averred a license to connect his property on Broad street by a turn-out from the railroad track.</p> <p>The peculiar features of his case are fully stated in the opinion of this court.</p>

This was an action of assumpsit, brought March 24th 1863, by A. P. Yaw against William Kerr, to recover the amount of a promissory note of defendant for $246.28, dated Buffalo, April 1st 1850, at ninety days.

<p>Surety of justice, liability of— Opinion of court as to. evidence, when admissible in charge to jury. — Proper method of presenting assignments of error.</p> <p>1. A surety on the official bond of a justice of the peace, is liable for money-collected by him in his official capacity, though without suit: it is not necessary that it should be collected by process.</p> <p>2. A judge may, upon the trial of a case, express an opinion upon the facts, if they are properly referred to the jury: but care should be taken not to infringe the province of the jury, só as to relieve them from the necessity of pronouncing an intelligent judgment.</p> <p>3. Hence, in an action on a justice’s bond, where the sole question was whether he had collected the money sued for in his official capacity, it was not error in the court, after recapitulating the testimony, to express an opinion that the justice had acted and received the money officially, at the same time referring the evidence to the jury with instructions that if they were satisfied of this fact, the bail was liable though no suit was brought on the note.</p> <p>4. An assignment of error to an answer to a point propounded on the trial below, must repeat the point.</p>

<p> Power uf Pennsylvania Railroad Company to discriminate between rates charged for "local” and other freight. </p> <p>1. The Pennsylvania Railroad Company has power under the Tonnage Commutation Act of March 7th 1861, to discriminate between rates charged for carrying “ local freight,” and the rates charged for other freight.</p> <p>2. The Constitution of the United States does not prohibit a discrimination between local freight, and that which is extra-territorial when it commences its transit: the distinction is not personal, and therefore not within the prohibition.</p>

<p>Judgment for want of a plea is final., and a lien from date of entry, though no damages he assessed. — Practice as to judgment hy default.</p> <p>1. A judgment for want of a plea is final and a lien upon real estate of the defendant from the date of the entry, though the damages may not be assessed, if the claim in the action be for a sum certain, or the amount may be ascertained by calculation from the demand set forth in the pleadings.</p> <p>2. Whore, in an action of assumpsit against an insurance company, upon a valued policy of insurance, in case of total destruction by fire of the vessel insured, the value being fixed in the policy and claimed in the declaration; judgment was taken for want of a plea, the judgment held final and a lien from its date, though the damages were not presently assessed.</p> <p>3. Hence, title to a ground-rent, owned by the defendants at the date of the entry of the judgment, for want of a plea passed to a purchaser at sheriff's sale upon execution issued thereon.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of ejectment by the Oriental Savings and Loan Association against William Everham, for a house and lot on the south-east corner of Mellon and Banker streets, Philadelphia.</p> <p>The mortgage was conditioned to repay a loan, and also to pay the monthly dues of the defendant, as a member of the corporation. The evidence showed that the loan had been fully repaid, hut the plaintiffs contended that they were entitled also to collect the instalments on the stock owned by the defendant, and claimed to use the mortgage for that purpose.</p> <p>Under the ruling of the court below (Sharswood, P. J.), there was judgment for the plaintiffs; which was the error assigned.</p>

<p>Effect of decree, on proof of contract of decedent. — Tender of money, effect of in ejectment. — Proper form of conditional verdict.</p> <p>1. Where a contract for purchase of land is, after decease of vendee, upon petition of his administrator, duly proved in the Common Pleas, and decree made enforcing it, the vendor cannot, in ejectment for the land, set up want of notice of the taking of testimony to prove the contract: the proof of the time and place of taking the testimony was primá facie concluded, by the decree made, as to tíre sufficiency of the proof of the execution of the articles.</p> <p>2. A vendee under articles, who tenders the balance of purchase-money due- thereon to the vendor, and demands a deed for the land, may, upon refusal to receive the money and make the deed, upon the trial of an ejectment for the land by the vendor brought without a tender óf the deed, prove the tender of the money and pay the amount of it into court, and in such a case he is not liable for interest between the time of the tender and the trial.</p> <p>3. A conditional verdict in ejectment should always fix the time when the money is to be paid.</p>

<p>Trustee, when allowed commissions on principal of trust estate. — Liability of, for interest on uninvested surplus of income.— Time allowed for investment.</p> <p>1. The trustee of a sum of money invested on bond and mortgage by a testatrix,, and bequeathed to her two sons on their arriving at the age of twenty-one years, meanwhile to be applied for their use and benefit; is entitled to a reasonable commission on the principal of the trust on settlement of his accounts, where the bequest was not a specific gift of one-half the mortgage, and the legatees were under no obligation to receive the balance due on the mortgage itself.</p> <p>2. A' commission of one and a half per cent, allowed by the Orphans? Court, held on appeal to be a reasonable compensation.</p> <p>3. An accountant, as trustee for care and management, is bound to keep the fund invested and invest its increase: but is entitled to keep in hand, out of the income, a moderate sum, to meet the demands of the cestui que trust under the trust for their use and benefit before coming of age: as also, to a reasonable time after the receipt of money, to invest it: and he can only be surcharged with interest upon any balances uninvested beyond such time.</p>

<p>Error to the Common Pleas of Lycoming county.</p> <p>This was an ejectment for a tract of unseated land, situated in Broom township, Lycoming county, containing five hundred and forty-six acres, brought by Edward Tompkins against Bubb & McHenry.</p> <p>This land was sold as the property of Tompkins, by the county treasurer, June 10th 1856, for the taxes of the years 1854 and 1855, to Bubb & McHenry, who paid the taxes and costs, filed their bond for the surplus purchase-money, and, in December 1857, received from the treasurer a deed for the land.</p> <p>On the 25th of February 1858, they paid to the treasurer the taxes for the years 1856 and 1857.</p> <p>, On the 21st of May 1858, a Mr. Watrus, as an agent for ■Tompkins, called on the treasurer to redeem the lands, who gave a receipt for $530.64, “in full of redemption of the above-stated tract of land, sold in June 1856, John A. Gamble, warrantee ; purchasers, Bubb & McHenry.”</p> <p>The treasurer did not, however, include the taxes that had been paid by Bubb & McHenry, for the years 1856 and 1857, nor were they paid by Tompkins, or any one on his behalf, until after the expiration of two years from the time of sale.</p> <p>Bubb & McHenry therefore contended that, under the Act of 8th of May 1855, it was the duty of the owner or person redeeming to pay together with the redemption-money to the treasurer, the taxes which had been previously paid by them to the treasurer, and without such payment and redemption, within the two years from the time of sale, the redemption was not good, and the title became absolutely vested in them.</p> <p>The court below (Jordan, P. J.) instructed the jury, in answer to points presented by counsel for plaintiff below, “ that the taxes paid by the purchaser of unseated lands did not constitute part of the redemption-money; but that, under the Act of May 8th 1855, it was the duty of the owner redeeming, to pay together with the redemption-money to the treasurer all the taxes paid by the purchaser, which, with the redemption-money, was to be paid by the treasurer to the purchaser when called for.”</p> <p>Also, “ that if the jury believed from the evidence that the omission to pay the taxes, for the years 1856 and 1857, on the 21st of May 1858, by Watrus at the time he paid the redemption-money, was occasioned by the fault or negligence of the county treasurer, it would be good, notwithstanding the omission to pay in the taxes paid by the defendants subsequent to the sale of the treasurer.”</p> <p>Under this instruction the jury found a verdict for the plaintiff.</p> <p>Both parties excepted to the charge. Judgment being entered on the verdict, the defendants below sued out a writ of error, and assigned for error the instruction of the court as above stated.</p>

<p> Liability of commissioners to repair county bridges. </p> <p>1. The obligation of county commissioners to keep in repair a county bridge, established by judicial proceedings in 1820, is not taken away by the Act of 11th March 1844, repealing the Act of 13th April 1843, which charged counties with the duty of repairing county bridges built under the General Road Law of 13th June 1836, as to Crawford county.</p> <p>2. The county commissioners of Crawford county are empowered by the Act of 25th March 1861, authorizing the repair of county bridges when dangerous or impassable from decay, to build a new superstructure over a county bridge which had broken down by age and decay: and that duty may be enforced by mandamus.</p>

<p>Right of prothonotary to recover tax on writs from the person for whom they were paid. — Liability of attorney for officers’ fees. — Interest on fees and taxes paid by officer, when recoverable.</p> <p>1. The Act of April 6th 1830, imposing state taxes on original writs and ' other proceedings, is constitutional: and a prothonotary who pays such taxes may recover them, in assumpsit, from'the person for whom, they were paid.</p> <p>2. An attorney at law.is personally liable to the prothonotary for fees in .suits wherein he was either plaintiff or plaintiff in interest, as also for fees received by him, as attorney or client, due to the prothonotary.</p> <p>3. If the px-othonotary have performed the services for which suit is brought, he is entitled to recover, though he has not in all respects literally complied with the letter of the law: the remedy of the defendant for any damages sustained by the neglect of the prothonotary is by action,</p> <p>4. Where an equitable owner o'f land sells a part by deed with general warranty, the remainder is bound in equity for the purchase-money of the whole tract: and where it appeared that the defendant, after the decease of the equitable owner, had purchased at an Orphans’ Court sale the residue of the land, he was held, in ejectment on the legal title, on payment of the purchase-money verdict (a less sum than his bid at the Orphans’ Court sale), not entitled to conti'ihution from the plaintiff, who held the title first conveyed by deed of general warranty; and was not allowed to set it off in a suit for fees.</p> <p>5. The prothonotary is entitled to recover interest upon the taxes and fees for issuing writs from the time of the issue, unless there is an agreenxent for credit, and then, from the time of the credit. ■ On fees for services during the progress of a suit, after final judgment or settlement of the case; and on fees received as attorney, if he was guilty of unreasonable or vexatious delay in paying them over, interest is due from the time of receipt, without proof of previous demand.</p>

This was a hill in equity, filed-in the Court of Common Pleas of Chester county, in which the County of Armstrong was complainant, and George Brinton respondent. The bill set forth, That by an Act of Assembly, approved 4th of April 1837, the governor was empowered to incorporate the Pittsburgh, Kittanning and Warren Railroad Company, with power to construct a railroad from Pittsburgh by way of Kit-tanning to the town of Warren, in Warren county, Pennsylvania.

This was an action of ejectment, by John Miller against John Casselberry, for a farm and grist-mill in Loyalsock township. The title to the land was in the plaintiff, but the defendant claimed it under an agreement, dated May 12th 1857, for the sale of the property to him for $5000, of which $3000 were receipted for as cash claimed to be due for wages, and the remaining $2000 to be paid to the children of one Ambrose Miller, in instalments.

<p>Error to the Common Pleas of Berks county.</p> <p>This was an action of assumpsit by Daniel and Abraham Zimmerman, as executors, &c., of Isaac Zimmerman, deceased, against John Zimmerman, a son of deceased, in which they claimed to recover $300, alleged to be due from him to deceased.</p> <p>The whole case will be found in the opinion of this court.</p>

<p>Error to tbe'District Court for the city and county of Philadelphia. ■</p> <p>This was an action of assumpsit, brought to recover a sum of money alleged to be due to the plaintiff in the court below, for her salary as .a teacher in the Girls’ High and Normal School of the city of Philadelphia. The plaintiff below obtained a verdict for $261.83, on which the court entered judgment.</p> <p>A Normal School for the instruction of girls had been established by the Controllers of Public Schools. Its chief object was to supply teachers for the grammar schools for girls in the county of Philadelphia, and none were educated there except such as proposed to teach.</p> <p>In June 1859, the Controllers of Public Schools changed the Normal School into a Girls’ High School. This change never received the approval of Councils. It was a more expensive institution, embraced a wider range of education, and its pupils were not obliged to teach after the completion of their course of studies.</p> <p>The plaintiff had been employed as teacher in each of the schools.</p> <p>By an ordinance approved March 4th 1861, there was appropriated :—</p> <p>“ Item 10. For salary of the principal teacher of the Normal School, $1500.</p> <p>“ Item 11. For salaries of other teachers in said school, $4200.</p> <p>“Provided, That the city controller shall countersign no warrant for salaries of any of the teachers, except he shall find that a scale of salaries has been adopted by the Controllers which shall not exceed in the quarterly payments one-fourth of the .aggregate herein appropriated for said salaries respectively.”</p> <p>The proviso applied to all of the items of appropriation for salaries in said ordinance.</p> <p>The aggregate amount appropriated for public education, in 1861, was $534,606.</p> <p>The Controllers of Public Schools declined to adopt a scale of salaries, which would make the appropriation of Councils sufficient. .The city controller refused to countersign the warrants, and this suit was brought by the plaintiff to recover her particular salary.</p> <p>This case raised the question, whether the discretion of the Board of Controllers must be exercised in subordination to the appropriating power of Councils ?</p> <p>The court below was asked to charge that the plaintiff could not recover, which was declined. This was the only error assigned, and its discussion involved the consideration of the respective powers of the Controllers, and of the local legislature.</p>

<p>Error to the Common Pleas of Warren county.</p> <p>This was an action of trespass de bonis asportatis, brought January 23d 1861, by Austin J. Kennedy against H. A. Trout, for taking and carrying away one hundred and three thousand five hundred feet of lumber, in which there was a verdict and judgment for plaintiff.</p> <p>On the 16th day of April I860, Dr. Henry Brooks made a contract in writing with defendant, by which the latter agreed to stock and run a steam saw-mill on Brooks’s land, manufacture therein boards, lath, and shingles, and give Brooks one-half the hoards, divided in the pile, one-third of the lath and one-half of the shingles. Each party had the privilege of giving the other notice W’hen he wanted to divide the lumber, and the other was bound to attend. Between the date of the agreement and October 1860, defendant had about two hundred and seven thousand of boards remaining at the mill, besides a small quantity which had previously been taken by Brooks, and some by himself, with which he built a mill-house near the mill. Defendant notified Brooks at two different times to come and divide the lumber, but he did not come. After that Brooks sent-A. J. Kennedy, the plaintiff, to divide it, when Trout told Kennedy that he would not divide, but would retain the whole, as Brooks had not performed his part of the contract in putting the mill in order, and that he claimed damages from Brooks and wanted to hold the lumber as his security. The lumber was measured about that time, but never was divided.</p> <p>In December 1863 a fi. fa. issued to the sheriff of Warren county on a judgment in that court in favour of Steward against Dr. Henry Brooks, and on the 25th December a levy was made on Brooks’s interest in two hundred and seven thousand feet of boards then manufactured by Trout, and on 3d January 1861 the sheriff sold one hundred and three thousand five hundred feet to A. J. Kennedy for $3,50 per thousand.</p> <p>After the sale to Kennedy there was no notice for a division, nor any offer -to divide by either party. Soon after the sale Trout commenced hauling the lumber to a point on the railroad, some six miles off, but in the same county, and had hauled onelialf, or perhaps a little more, from the mill lot, where it was, at the time of sheriff’s sale, and up to the day on which this suit was commenced. A portion of what he had hauled was lying at a dugway some three miles from the mill at the time of the sale. That and the residue was afterwards hauled to the railroad by Trout. He made no disposition of it whatever, and did nothing to oust Kennedy from the possession, or interfere with his ownership. After the sheriff’s sale, and before the commencement of this suit, he had moved only a portion of it, about one-half, and the residue remained on the lot where it was at the time of the sheriff’s sale.</p> <p>Under these facts the defendant requested the court to instruct the jury,—</p> <p>1. That the lumber not having been divided, the sheriff’s sale of Brooks’s interest in one hundred and three thousand vested in plaintiff a title to only the undivided one-half of the one hundred and three thousand, and no title whatever in the residue of the boards.</p> <p>2. That the plaintiff and defendant, being tenants in common of the lumber in controversy, the possession of one is the possession of both, and no action of trover or trespass can be maintained without showing that the defendant had destroyed or made sale of the lumber to an innocent purchaser previous to the commencement of this suit.</p> <p>3. That if plaintiff recover at all, he can recover damages only for that portion which defendant had removed between the 3d day of January 1861 and the 23d day of the same month.</p> <p>The court below (Derrickson, P. J.) refused to affirm either of these points, and also instructed the jury that “it was not allowable for one to trespass upon the rights of another, and in his defence allege that there was no market for the property taken or destroyed, or that it was of less value on this account than it had been before, or was subsequentlywhich were the errors assigned here by the defendant, after a verdict and judgment for plaintiff.</p>

<p> Patent for land must include no more than is in warrant and survey. </p> <p>1. In the Pennsylvania system of land titles, a warrant and survey are the origin of title, and the patent only the confirmation of it; if the patent embrace more land than is surveyed, it is void for the excess, and does not pass the title of the Commonwealth thereto, as against a subsequent warrantee.</p> <p>2. Therefore, where a warrant was surveyed on land as “ surrounding Elk Pond,” which was laid down as vacant, the figure of the survey being that of a parallelogram, the exterior lines of which only were run upon the ground, and on the draft as returned the lines of an interior parallelogram enclosing the pond were marked, the patent obtained upon the warrant and survey was held to include only the land embraced by it, viz. the outer parallelogram : and the holder, not entitled to the land, including the pond, lying within the inner figure, as against a subsequent appropriate by warrant, survey, and patent.</p>

This was an action of replevin, brought by David W. Lee, surviving partner of the firm of Charles M. Leupp & Co., against Jay Gould, for twelve hundred sides of sole leather, of the value of $3500.

<p> Interest of recognisor on acceptance of land in the Orphans’ Court, in recognisance given to secure the share of all the heirs; when not extinguishecl by sale of land bound by it. </p> <p>1. Where a son accepted his father’s real estate, and gave a recognisance in favour of the widow and heirs, the amount of which, as subsequently reduced, remained upon the land by specific mention and condition, through successive sales, first, by order of the Orphans’ Court for payment of debts on death of the acceptor, then at private sale by the purchaser to another; in partition of whose estate it was again accepted, and the amount of the reduced recognisance to all of the heirs as originally given, taken into account in the valuation and acceptance, held, that the interest of the recognisor did not merge or become extinguished by operation of law, but, on the death of the widow, was recoverable from the holder of the land by the parties entitled thereto.</p> <p>2. 'Whether the administrator d. b. n. of the recognisor was entitled to recover his intestate’s interest in the dower fund, not decided, he having been made by consent a party plaintiff in case stated.</p>

<p>Effect of recital in mortgage.— When not an estoppel. — Estoppel by matter in pais.</p> <p>C., the owner of land, sold it by deed in twenty-fourth parts to vendees, some of whom afterwards joined with him in executing a mortgage to a stranger, containing a recital that he was the owner of eleven twenty-fourths: after the execution of the mortgage and before it was recorded, a creditor of C. issued a writ of foreign attachment against him, obtained judgment, and at sheriff's sale, on execution, bought the land for which he brought ejectment against the persons in possession, O.’s former tenants, who alleged in defence that O. had no title when the attachment was served, to which the plaintiff replied the recital in the mortgage as an estoppel. Held,</p> <p>1. That as the recital was but the naked declaration of O. and his co-mortgagors as to the extent of his title, made after he had conveyed it by deed, and the tenancy of the defendants had ended, it could not operate as an estoppel against them to prevent their denial of O.'s title or that of the plaintiff who claimed it by virtue of his purchase at sheriff's sale.</p> <p>2. The recital in the mortgage with the subsequent purchase of the plaintiff did not estop the grantees of 0., who joined in it from asserting their title according to their deeds, nor was it equivalent to a declaration of trust in them in his favour, as to the portion therein recited; but it was several statements, each reciting his own title, that neither were bound to know or assure the title of the other.</p> <p>3. Where the only evidence of estoppel'was the recital in the mortgage, and no declarations by parties or privies in title were proven to have been made at the sale upon the faith of which the plaintiff purchased, it was error in the court to declare, as matter of law, that the plaintiff had been misled thereby to his hurt, for he was not bound to examine the record except prior to the service of his attachment, and the mortgage was not recorded until afterwards.</p> <p>4. Where the possession or occupancy of the defendants under O. was a disputed question in the case, it was error to instruct the jury that if they found that the defendants went into possession under O. and held under him in the year in 'which the attachment issued and the two prior years, the plaintiff as the vendee of C.’s interest was entitled, as against them, to the possession: but that if they found that the defendants did not go into possession, and hold under C., the verdict should be for them: the attention of the jury should have been directed to the time of the service of the writ of attachment, for the defendants might have held under O. during that year, and yet by his conveyance of the title, not have so held when the attachment issued.</p>

<p>Settlement of estate of decedent. — Liability of devisees for money paid by widow and executor in satisfaction of debts of decedent out of personal estate.— Commissions of executor, when forfeited.</p> <p>1. Where a widow who was one of the executors of a decedent paid debts out of the personalty (of which she was entitled to one third) instead of the income of the real estate, devised to her children, of which she was a trustee, her co-exccutor, after her discharge by the Orphans’ Court, on petition of the legatees, without settlement of her account, and subsequent death, was held entitled, on settlement of his account and a charge of the whole inventory against him, to a credit for the amount of debts paid by the widow, as against the children and legatees, who were benefited by the mode of payment.</p> <p>2. Negligence in an executor, though arising from kind feeling for the widow of the decedent, is properly punished by the loss of commissions: but he is not chargeable with any part of the expenses of the audit, where the various steps m the litigation upon his account resulted in successive diminutions of the balance against him.</p>

<p>Error to the Common Pleas of Luzerne county.</p> <p>This was a proceeding in the court below, founded on the petition of Jameson Harvey, praying for the appointment of viewers to assess the damages which he had sustained, by reason of the location and construction of the Lackawanna and Bloomsburg Railroad through his lands. The defendant appealed from the report of the viewers, and the court below directed the cause to be put at issue as in an action of trespass quare clausum fregit under the general issue.</p> <p>There was a large amount of testimony heard in the cause, and the conflicting opinions and statements of witnesses usual in such cases were laid before the jury.</p> <p>Under the ruling of the court below (Conyngham, P. J.), there was a verdict and judgment in favour of the plaintiff for $1050, whereupon the defendant sued out this writ, and assigned for error the following matters, to wit:—</p> <p>1. The court below erred in refusing to permit the plaintiff to ask the witness, William H. Alexander, as follows, to wit:— “What was the value of the wharves made by the plaintiff before the railroad was made, and to what amount, if any, they were deteriorated by the construction of the railroad?”</p> <p>2. In refusing to permit the plaintiff to ask the witness as follows, to wit: “What is the amount of coal contained in the tract of land to be estimated by the calculated quantities or supposed quantities?”</p> <p>3. In refusing to permit the plaintiff to prove by the witness, “that the plaintiff cannot carry his coals mined in his drift, which was opened and worked by him .long before the construction of the railroad across the railroad by the crossings made by the defendant for that purpose, to his stocking-ground or to his wharves, without great danger from passing trains to his servants, horses, mules, and cars.”</p> <p>4. In refusing to permit the plaintiff to ask the witness as follows, to wit: “If the ground occupied by the railroad would not have been indispensable to the plaintiff, if he had operated through the shaft he had commenced and partially made before the location of the road, and if a shaft at or near the place where the plaintiff commenced was not necessary for the purpose of mining the coal below plaintiff’s gangway?”</p> <p>6. In refusing to permit the plaintiff to ask the witness as follows, to wit: “If a shaft in that locality (where the plaintiff had commenced one) is not necessary to the proper and economical mining of plaintiff’s coal below his gangway ?” for the purpose of showing that his property was damaged by the construction of the railroad in preventing the plaintiff mining a large body of coal with economy.</p> <p>6. In refusing to permit the plaintiff to ask the witness as follows, to wit: “Whether or not a man who had an acquaintance with mining and shipping coal would give as much for the land with the railroad on it as constructed as without it, and if not, how much less ?”</p> <p>7. In refusing to permit the plaintiff to prove as follows, to wit: “ That, in consequence of the defendants altering the grade of their road in front of plaintiff's tunnel, he was prevented from getting his coal out in time to ship that season, and that 1600 tons in consequence lay on his wharf until the next spring.”</p> <p>- 8. In refusing to permit the plaintiff to ask his witness as follows, to wit: “ How many times the passing trains have collided with the drift-cars of plaintiff while attempting to cross defendants’ railroad by the crossing made by the defendants for that purpose; and whether or not the collisions could have been avoided by any carefulness, on the part of Harvey’s hands ?”</p> <p>9. In charging the jury as follows, to wit: “ The main question before you is as to the injury to the property — not as to present injury to the present proprietor, for injury now may be more than compensated by ulterior advantages which raise the value of the property in the market, more than overcoming the present injury.”</p> <p>10. In charging the jury (after having first stated to them “ that the hindrance and obstruction in the way of getting across the railroad with the plaintiff’s coal to the wharves are claimed as ground of damages,”) as follows, to wit: “ What right had he (the plaintiff) to any crossings before the railroad was constructed ? We cannot see that he had any right to lay down tracks for a railroad over the surface of a public road. If he had the right, how shall he use it ? How shall he go across ? How shall the crossings be graded ? There is no law, no provision for so doing. If such a right be considered vested in any way, he may cross over squarely, or he may go over diagonally, and such must be the case for five tracks leading to one drift; if he can pass over it diagonally he can run them for some distance along the road, the effect of which would be to allow the putting of obstructions in a public road such as never can be justified.” '</p> <p>11. In charging the jury (on the same point) as follows, to wit: “ They (the public roads) are to be kept clear for the ordinary kind of travelling by wagons, &c. — this is the kind of passage given and received, — and it is in vain to say, that a series of railroad tracks laid down by the owner of the soil at his own risk is not an interference with such travelling. There is, as we have said, no mode regulating them by law, and to leave every case dependent upon the different opinions of witnesses would be an interminable source of trouble, annoyance, and dispute.”</p> <p>12. In charging the jury (on the same point) as follows, to wit: “We mean to say, that Mr. Harvey, before the railroad was there, and while the ground was occupied by the state road alone, had no existing right of railroad crossing over the state road: he had merely a right which was necessarily reserved to him to drawhis co.al over the road in the ordinary way of travel-ling over common roads. When the charter was given to the railroad company, it gave them the right to take possession and occupy the road with incidents that belong to it as a road, and in so doing they were entirely justified in taking up the unlawful railroad tracks, which Mr. Harvey had placed upon the road, and we do not see how there can be any claim for damages to Mr. Harvey, by reason of additional cost in carrying his coal over the railroad as compared with the cost of carrying coal across the state road by his original railroad tracks over the-public road.”</p> <p>13. In charging the jury as follows, to wit: “ The opinions then of Mr. Gray and Mr. Hosie and others, of damages to the amount of $20,000 and more, founded upon the increased expense of crossing by the new railroad, over the old tracks laid across the state road, can have no effect at all in the present case; their idea is based upon the supposed rights which we now hold Mr. Harvey did not possess before the railroad was made by the company, or which cannot now be claimed as existing against the company.”</p> <p>14. In charging the jury as follows,' to wit: “We refuse then to say that the principle claimed here, of the alleged loss of value in Mr. Harvey’s property, from the fact that other coal property at Pittston and elsewhere, may be brought into nearer competition with him, is a disadvantage to be considered by you in comparing the advantages and disadvantages of the railroad.”</p> <p>15. In charging the jury as follows, to wit: “We cannot say that the claim for inconvenience at the mines in consequence of the delay from passing trains and the danger attendant upon it, can be allowed here as an element of damages for which there can be a recovery from the defendant. We are of opinion, however, that where the defendants are claiming great advantages for the plaintiff, from the railroad, both now and hereafter, the jury may give this subject some weight in the present enjoyment and occupation of the property as a disadvantage, if they think it entitled to it. It is an inconvenience, as the witnesses say, in the present use of the property.”</p> <p>~ 16. The court below erred in their answer to plaintiff’s first point, which was, “ If the jury believe that the lands of the plaintiff, after the railroad was fully constructed through them and was in full operation, would have sold for less with the railroad located and constructed as it is, than they would have sold for without the railroad and unaffected by it, that difference is the legal amount of the permanent damage done by the railroad to the plaintiff’s land.”</p> <p>Answer. “ We say they (the plaintiff’s 1st and 5th points) are correct if found to exist in fact, and the lessening of value referred to in the first point is occasioned by disadvantages from the railroad not of the kind which we have heretofore said should not be considered by you.”</p> <p>17. The court erred in their answer to the plaintiff’s second point, which was as follows: “That the expense of the plaintiff in removing from his fields the rubbish deposited thereon by the agents of the defendant in constructing the railroad; the cost of the fence along the swamp built by plaintiff (if the jury estimate the permanent damage after the removal of the rubbish and making of the fence), and the hindrance and extra expense to which the plaintiff was put in carrying on his business of mining and farming, by the contractors and workmen of the defendant while constructing the railroad through his lands, or in altering and changing the grade of the railroad opposite plaintiff’s tunnel, after the iron was laid on the railroad and plaintiff had made and adapted his road from his tunnel to the crossings on the railroad, should be estimated by the jury and added to the permanent damage, if any there be, and interest upon the whole from the completion of the railroad through the lands until this time, should be allowed to the plaintiff.”</p> <p>Answer. “ We say it is correct, except as to the damage for delay in repairing the road or raising the track when it had settled, as testified to by Mr. Blair, and also referred to in the general charge.”</p> <p>18. The court erred in their answer to the plaintiff’s 4th point, which was, “ That the opinions of witnesses as to the market value of plaintiff’s lands, as affected by the defendants’ railroad as located and constructed over them, are not by any means conclusive upon the jury, but that the value of these opinions, in a great measure, depends upon the business characters of the individual witnesses ; their practical experience in the use and working of lands of the character of those of the plaintiff, their having been, or not, engaged in the business of buying and selling of such lands, and their freedom from prejudice and partiality; and that the jury are bound to judge for themselves from all the evidence in the cause, whether the market value of the plaintiff’s lands has been diminished by the construction of the railroad, and if so, to what amount; and that to arrive at a correct conclusion they should take into consideration the exclusive appropriation of a part of the plaintiff’s lands, the inconvenience arising from the division of the lands and the manner in which they are cut by the railroad, the increased difficulty of access to his fields, the increased inconvenience and cost of carrying his coals across the railroad to his wharves from his mines, which were opened and worked by him before the location of the railroad, the diminution of the capacity of these mines, the contraction of his stocking-ground, the filling up of his shaft, the damming of water at the mouth of his tunnel and upon his fields, the increased difficulty of access to the river and the additional fencing required, or such of these matters as the evidence satisfies the jury to really exist, and to consider them as matters of damage resulting, directly from the construction of the said railroad.”</p> <p>Answer. “This point is so complicated, that to answer it directly in the affirmative might mislead: it is correct in its general principle as stated, as to the opinions of witnesses, and the weight the jury should give to them; their opinion will have weight from their knowledge upon the subject, and their opportunities of judging. It is not necessary to decide upon the value of property that men should be practical coal-men, or that they should be engaged in the business of buying and selling lands; these would be aids in forming an opinion, though if, by reference to buying and selling, it be meant to refer to those persons who have been engaged in speculating sales, we cannot say they are always the most reliable judges. The object of the testimony is to get at the fair market value which, on a bond fide sale in such a manner as sales of such property are usually made, this present property would bring, as affected by the railroad. In so far as this point would submit to the consideration of the jury the item of increased cost of carrying coal across the railroad, and assuming this increase as a fact only from comparison with his use of a railroad across the state road, it is not correct, as we have already explained to you. This point, we say, may be considered correct, excepting from it any expressions intending to cover items of claimed damage or disadvantage which the court has already said should not be considered.”</p> <p>19. The court erred in charging the jury as follows, to wit: “You will render your verdict in the cause, if for the plaintiff, by specifying in the verdict the items or subjects for which you allow the damages, or the principle upon which you reach it, stating the sum per each item, and then adding them all together and returning one general sum, stating the items with the addition; this will secure the rights of the parties and enable justice to be more fully rendered hereafter, upon seeing the special grounds of your verdict thus showing for what you allow damages;” and then, on the plaintiff’s counsel requesting them to say to the jury that if they pleased they might render a general verdict without stating any items or the grounds of their finding, the court told the jury they declined to do so, saying “ that it was the duty of the jury, in this matter of form, to follow the instructions already given:”</p>

<p>Appeal from the Orphans’ Court of Pihe county.</p> <p>This was an appeal by Hannah Steele, widow of Gilbert Steele, deceased, from the decree of the court below, dismissing her petition for maintenance out of her late husband’s estate.</p> <p>The petition set forth that Gilbert Steele made his will on the 2d of December 1841, which was proved on the 17th of January 1842; that amongst other things it contained the following bequest to the petitioner : “ I give to my loving wife Hannah two good beds and bedding, and all my household furniture and clock, and to he furnished with a comfortable room, and sufficient maintenance during her natural life, and to be furnished by my two sons, Daniel and Gilbert Steele, and chargeable upon the messuage and tenement and tract or tracts of land hereinafter devised t.o them;” and the following devise to the defendants, Daniel and Gilbert Steele: “ And I give and devise to my two sons, Daniel and Gilbert, one hundred and eight acres, being part of different tracts of land composing my old farm, to he equally divided between my two sons, Daniel and Gilbert Steele, excepting therefrom three acres to Hannah Cortright, wife of Cornelius Cortright. And I also give to my two sons, Daniel and Gilbert, each one equal half part of thirty acres of land, to be taken off the south end of the John M. Saylor tract; the above-named messuages and tenements charged and chargeable nevertheless with the devises to my loving wife Hannah as aforesaid.” That the said Gilbert Steele and John J. Westbrook were named as executors in said will, and took out letters testamentary thereon; that Daniel and Gilbert entered into possession of the said lands under the said devise; that on the 24th of June 1846, petitioner released from the lien of said legacy twenty-two acres of said land, which was "afterwards sold by Daniel and Gilbert to John W. Yangorden, but that the remainder still remains liable thereto; that Daniel and Gilbert divided the residue of the land between them; and that Daniel sold his part to Gilbert and removed to Huron county, Ohio, where he still lives; that Gilbert afterwards agreed, to sell the whole or part to William F. Brodhead, and that Gilbert and the said Brodhead are now the only persons having any interest in said lands; that since the 10th day of May 1851, neither Daniel nor Gilbert, nor any one else holding or claiming said lands, have provided petitioner with that which is bequeathed to her in the will.</p> <p>The petition then prayed for a citation, "which was served personally on Gilbert Steele and William F. Brodhead, and by mail and publication (as directed by the court) on Daniel Steele.</p> <p>On the 19th of February 1856, the answer of William F. Brodhead was filed, admitting the bequest and devise; that Daniel’s interest in the lands became vested in Gilbert, and that the defendant, Brodhead, purchased from Gilbert the “ old farm.” It alleged that, on the 10th day of May 1851, the defendant Brodhead had reserved for the petitioner a room in the house on said farm (being a comfortable room, and the best one in the house), which has remained so reserved ever since, and that defendant Brodhead and those under whom he claims were, on the said 10th day of May 1851, and ever since have been and still are ready and willing to furnish the petitioner with sufficient maintenance, &c.</p> <p>On the 16th of September 1856, the petition of Hannah Steele was presented, reciting the death of William F. Brodhead in March 1856, and that he left a widow, Jane D. Brodhead, and issue seven children, to wit: Cornelia, wife of Levi B. Oalder, and James F., who are of full age, and Daniel D., Mary Jane, William F., Elizabeth, and Margaret, who are minors and have no guardian; and praying for a citation to the heirs and legal representatives of the said William F. Brodhead, deceased.</p> <p>December 21st 1857, James E. Eldred was appointed guardian ad litem, and the rule was served on the widow, guardian, and heirs.</p> <p>The complaint on the part of the petitioner was, that she was ill treated by the family of her son; that the maintenance furnished to her was insufficient and reluctantly given, so that she was compelled to leave the place, and that when she expressed a desire to return, Gilbert Steele, who was then the sole owner, cut and knocked the chinking out of the house so that it was unfit to live in.</p> <p>Her application was for an annual valuation of her legacy, and a decree against the respondents for the payment of the arrears, and an apportionment among them of any deficiency that there might be.</p> <p>The points in controversy were — '</p> <p>1. Whether the widow was compelled to reside on the devised premises or lose her support?</p> <p>2. What was the effect of the release of the twenty-two acres ?</p> <p>3. What was the effect of the Orphans’ Court sale ?</p> <p>4. To what extent were the individual devisees and their successive alienees personally liable ?</p> <p>The court below (Barrett, P. J.) held that Mrs. Steele was only entitled to the room and maintenance on the devised premises, and not elsewhere; that she had no just cause of complaint, and therefore dismissed the petition.</p> <p>This appeal was then taken, and the following errors assigned :</p> <p>1. The court erred in dismissing the proceedings at the costs of the complainant.</p> <p>2. The court erred in not directing a reference to an auditor to ascertain the annual value of the legacy to Mrs. Steele, and in not making a decree for the sale of the land to satisfy the arrears of the legacy, and a personal decree against the devisees, Gilbert S. Steele and Daniel Steele, and against the administrators of William F. Brodhead, and against Jane D. Brodhead, for the payment of any deficiency, to be apportioned among them according to the period during which they were respectively owners of the land.</p>

<p>Construction of will. — Subsequent general charge of legacies on lands, not restrained by previous particular charge. — Lien of legacy charged on land during Ufe of legatee, not affected by sale of land or payment of proceeds into court by purchasers.</p> <p>A testator, after bequeathing an annuity to each of his two daughters, the principal at their death to go to their children, and charging the principal sum thereof on his real estate in D. county, devised the “ rest and residue of his estate, real, personal, and mixed, and wheresoever the same may be, after payment of debts and securing the payment of the annuities,” to his son.</p> <p>1. On distribution of the .proceeds of sale by the executors of the devisee of a part of the real estate of deceased in another county, which had been paid into court by the purchasers under the Act of February 24th 1834, $ 9, it was Held,</p> <p>(1) . That the annuities were a charge on all the lands of the testator, and not merely on that portion which was situate in D. county:</p> <p>(2) . That the sale of that portion of testator’s land which was not in D. county, .under the power given by the will, was not a judicial sale, and if it had been, would not have divested the liens while the daughters were living:</p> <p>(3) . That the payment of the purchase-money into court by the purchaser under the Act of 1834, could not divest the liens of these legacies and compel the holders thereof, who claimed under the will of their father, to resort for payment to a fund raised by the sale of the property of his son.</p>

<p>Rent discussed, and- defined. — Rent due on lease not such a. lien as will divert the lien of mortgage on sheriff’s sale. — Leasehold mortgages within the provision of the Act of April 6th 1830.</p> <p>1. Rent due under a coal-lease, is not a prior lien, under the Act of April 6th. 1830, relating to mortgages, so that a mortgage of the leasehold will be discharged by a sheriff's sale of the term, under an execution against the lessee.</p> <p>2. A stipulation in the lease for the repayment of an improvement fund by “ an additional rent of ten cents per ton on all coal taken out,” is a provision for the repayment of a loan simply, and the amount due thereunder, is not rent properly so called.</p> <p>3. By Agnew, if., — The rent reserved in the coal-lease was analogous to a ground-rent: and the lien of the mortgage was preserved by the Act of April 6th 1830, providing that the lien of a mortgage prior to all other liens upon the same property except other mortgages, ground-rents, &c., &c., shall not be destroyed or affected by any sale made on venditioni exponas.</p> <p>4. Bantleoñ v. Smith, 2 Binney 146, commented on and restricted.</p>

<p>What property is included in mortgage by railroad company of corporate privileges and appurtenances. — “ Appurtenances” discussed and defined.</p> <p>1. Town lots, held by a railroad company, do not pass by a sheriff’s sale, upon a mortgage of the road “ with its corporate privileges and appurtenances,” unless directly appurtenant to the railroad and indispensably necessary to the enjoyment of its franchises.</p> <p>2. A railroad company, holding town lots adjoining their road-bed, ostensibly for a basin to connect with river navigation, having mortgaged the entire road with its corporate privileges and appurtenances, but without specific mention of the lots, became embareassed, and the mortgaged property was sold under proceedings thereon by the sheriff: the lots having been again sold under execution against the company and bought by the plaintiffs therein, in an ejectment therefor by them against the purchasers under the mortgage, the jury were instructed that if the lots were not appurtenant to the road and essential and indispensably necessary to the enjoyment of its franchises, and as such included in the mortgage, the plaintiffs were entitled to recover: referring the question of appurtenancy and necessity to them as matters of fact; the instruction was not error.</p>

<p>Error to the Common Pleas of Cumberland county.</p> <p>This was an action founded on the joint and several promissory note of Calvin McCleaf and Adam Burkholder to Christian T. Strickler, dated April 3d 1856, at one day after date, for $100, on which $10.13 of interest had been paid. It was taken for granted at the trial, though no proof was given on the point, that McCleaf was principal debtor and Burkholder surety. The jury were only sworn as to Burkholder. After Strickler had held this note some three years, Burkholder, according to the testimony of two witnesses, told Strickler to “get that money,” or “ collect that money, as he did not consider himself bail any longer.” This was in the summer of 1859. Suit was not brought until August 1861, and the defendant relied on this to relieve him from his liability upon the note. The plaintiff, besides excepting to the sufficiency of the notice, relied upon the insolvency of McCleaf as an answer to the defence, and showed that at the time of notice his real estate was covered with judgments not reached by a subsequent sheriff’s sale, and that his personal property was appraised, at $15.50, and never was of such an amount or kind as to have enabled the plaintiff to have collected this' money.</p> <p>Among the points propounded by the parties, on which the court were requested to charge the jury, were the- following:—</p> <p>The plaintiff requested the court below to instruct the jury,</p> <p>1. That the notice shown in this case is not proved with sufficient precision as to its terms to justify the jury in finding for the defendant.</p> <p>2. That now the remedy of the surety to be relieved from his liability upon notice to the creditor to sue the principal, or he will consider himself discharged, is no longer at law by loose proof of notice made in pais, but the surety is bound to file his bill in equity to compel the creditor to proceed against the principal.</p> <p>The defendant requested the court to charge,</p> <p>1. The notice given is sufficient in law. And it having also been proved that McCleaf (in the spring of 1859, and until the fall of 1861) had personal property, it became imperatively the duty of plaintiff to bring suit, and try to recover his money without any unnecessary delay; and as he did not, he cannot now recover.</p> <p>2. The plaintiff cannot be excused after the notice given from bringing suit immediately, or within a reasonable time, against McCleaf, and making an effort to collect his money, unless he has proved that the attempt would have been wholly fruitless. If the jury believes that plaintiff might have obtained his money, or part of it, out of McCleaf’s property by proceeding as requested, he cannot now be excused by offering evidence to show that he probably could not have realized the whole of his debt. Unless he has satisfied the jury that the attempt would have been wholly fruitless if he had brought suit, it was his duty to proceed and make what he could. As he was in default in not acting, the doubts are to be all against him, and as he did not bring suit until the 3d of August 1861, he cannot recover unless the attempt would have been wholly fruitless.</p> <p>The court (Graham, P. J.) answered the plaintiff’s first point as follows:—</p> <p>“ 1. We decline to answer this as requested. The notice proved by Mr. Shoemaker and Mr. Kuhns we think is sufficiently precise and certain, but the parol evidence is for you to pass on. The' law requires notice to bring suit or collect the money off the principal, or the surety will consider himself discharged, or no longer liable, and we consider the notice proved comes within this rale.”</p> <p>The second point was answered thus:—</p> <p>“2. We cannot say to you that this is the law. The ruling of our Supreme Court hitherto has been that parol notice, if in proper form, is sufficient to discharge a surety, and we will not attempt to introduce a new rule on the dieta in Cope & Smith, 8 S. & R. 115, and Erie Bank v. Gibson, 1 Watts 143. If the rule of law as to the discharge of sureties is to be changed, since equity powers have been vested in the Courts of Common Pleas, we will submit it to the Supreme Court to do so. But the notice proved must be definite, precise, and satisfactory, so as to communicate to the creditors distinctly and intelligently that if he does not proceed to collect the debt from the principal the surety will consider himself discharged from liability.”</p> <p>The defendant’s points were thus disposed of:—</p> <p>“ 1. We have stated to you what notice the law requires. You will determine whether the parol evidence meets the requirements of the law. The parol evidence is for the jury, and it is your province, not that of the court, to say what is proved by a particular witness. Nor can we say to you as requested in the latter part of this point, that if McCleaf had personal property in 1859 and till 1861, it was the duty of plaintiff to bring suit and try to recover his money. This would depend on whether Mc-Cleaf had personal property subject to levy and sale.</p> <p>“ 2. To relieve plaintiff from the effect of the notice the evidence must satisfy you that an effort to collect the money by plaintiff would have been wholly fruitless. If the plaintiff might have made part of his money out of McCleaf’s property, the surety would be relieved to the amount that might have been thus made had suit been brought when notice was given.</p> <p>“ The burden of proof is upon the plaintiff to satisfy you that the money could not have been collected if suit had been brought when requested. If there is doubt and uncertainty on this point, then doubts ought to operate in favour of the defendant, after having satisfactorily proved notice to the plaintiff that he would consider himself discharged unless the plaintiff brought suit against the principal.”</p> <p>Under this ruling there was a verdict and judgment for plaintiff. Whereupon the defendant sued out this writ, and assigned for error the answer given by the learned court to the proposition of the parties as above.</p> <p>The names of the counsel concerned in this case did not appear in the paper-books on file.</p>

<p>Pleading. — Joinder of counts. — Right of plaintiff to file new count after award.- — Principal, how far liable for tort of agent.</p> <p>1. A count in assumpsit cannot be joined with a count for a deceit: and, where added after an award of arbitrators and an appeal therefrom by the defendant, under a declaration containing a count for deceit only, it was properly stricken off by the court on the trial.</p> <p>2. Where a wagoner took rags from the depot of a railroad company to his employer’s paper-mill, supposing them to be his, where they were used, held, that the employer was not, by the act of taking merely, involved in the consequences of a fraud.</p> <p>3. Hence, on the trial of the action brought by a railroad company, on the count for the deceit alleged to have been practised by a defendant in obtaining the rags, it was not error in the court to instruct the jury in substance that the plaintiff could not .recover, unless the goods were fraudulently taken and converted: and that the act of the wagoner in taking the goods was not of itself such a. fraud as would entitle the plaintiff to recover in the action against the principal.</p>

<p>Unliquidated damages for breach of contract, not recoverable on issue to ascertain the balance due on judgment.— Commissions on advances, when usurious.</p> <p>1. In an issue to ascertain the balance due upon several judgments, unliquidated damages for the breach of a contract by the debtors therein, cannot be included.</p> <p>2. Where the holders of the judgments, by assignment, were to receive, as commission merchants, from the defendants, who were ironmasters, iron for sale on commission, they were held entitled to interest upon the judgments and to commissions on sales and guaranties of paper received: but not to an additional commission of two and one-half per cent on advances.</p> <p>3. The charge of additional commissions on advancements was usurious and could not be enforced at law, either upon evidence of a promise by defendants to pay it, or in consequence of their failure to comply with their agreement in furnishing iron according to their contract.</p>

<p> Liability of residents of a borough for corporation debts, after having been made citizens of adjoining township by a legislative change of corporation limits. </p> <p>Residents of an incorporated borough are not individually responsible for any portion of the existing indebtedness of the corporation, after they are thrown out by a change of its limits under an act of the legislature and made citizens of an adjoining township.</p>

<p>Principal liable to substitute for amount agreed to be paid, though mistaken as to his liability to service.— Consideration of promise to pay sufficient.</p> <p>One, who when drafted for nine months under the State Militia Law, procured a substitute for three years or during the war, who was duly mustered into the service of the United States, held liable for the sum he agreed to pay, though he was drafted in the excess above the number required, and the quota of the township was filled before his name was reached.</p>

<p>Error to the Common Pleas of Cumberland county.</p> <p>This was au action of assumpsit, brought to August Term 1862, by William Natcher against Gabriel Natcher, in which the plaintiff declared for $250 on a common count for money had and received.</p> <p>The material facts of the case were these : — A foreign attachment had been issued on the 15th day of September 1859, at the instance of William Natcher against Gabriel Natcher, which attachment was served upon Samuel Lehman as garnishee. Lehman filed an answer admitting that he had in his possession for collection, two promissory notes belonging to Gabriel Natcher, the defendant in the attachment, and wrote immediately to Gabriel Natcher, informing him of the foreign attachment.</p> <p>On the 21st of November, Lehman received a letter from Gabriel Natcher, denying all indebtedness to William Natcher, averring a former settlement of all accounts. Several months after the date of this letter, Gabriel Natcher wrote another letter to Samuel Lehman, the garnishee, directing him to settle the foreign attachment in the best way he could, suggesting certain terms, but saying that he would be satisfied with what Lehman would do.</p> <p>Acting under this letter, Lehman, on the 7th day of April 1860, settled the foreign attachment by delivering to William Natcher, “in payment of all claims of any kind owing to me,” the two notes which he had received from Gabriel Natcher for collection, and which were the only property of Gabriel Natcher attached in his hands. It was to recover the amount of these notes that this action was brought by Gabriel Natcher — the plaintiff alleging that the claim for which the foreign attachment had issued was unfounded, and relying upon a receipt of William Natcher, dated March 8th 1856, to substantiate the allegation.</p> <p>The defendant requested the court to instruct' the jury—</p> <p>1. That there can be no action for money had and received by Gabriel Natcher against William Natcher, after the proceedings in foreign attachment given in evidence in this case to recover money on notes received by William Natcher in the foreign attachment.</p> <p>2. That if, after the proceedings in foreign attachment, Gabriel Natcher gave William Natcher notice that the notes held by Lehman did not belong to him but to one Weaver, Gabriel Natcher cannot maintain this action.</p> <p>To which the court below responded:—</p> <p>“ 1. We cannot answer this point in the affirmative. There was no judgment of the court in the foreign attachment, either against defendant or the garnishees. If William Natcher induced Samuel Lehman to hand over the notes placed in his hands by Gabriel Natcher for collection, and mark the attachment case settled, by giving Lehman a bond of indemnity, and there was in fact nothing due from Gabriel to William Natcher, Gabriel Natcher may recover in this suit the amount of the Sidle notes thus improperly received by William Natcher.</p> <p>“2. We cannot answer this point as requested. The evidence is that the notes were transferred by Weaver to Gabriel Natcher, and whether the transfer was for value or for the purpose of collection, is not material to the present inquiry. Weaver interposes no objection to a recovery by Gabriel Natcher, and William Natcher cannot be permitted to object for him. If Weaver claims this money, the right to receive it can be adjusted between him and Gabriel Natcher after judgment is obtained.”</p> <p>These answers were the errors assigned here by the defendant after a verdict and judgment in favour of plaintiff.</p>

<p>Error to the Common Pleas of Lancaster county.</p> <p>This was an action of assumpsit by John Shaeffer against Moses Heisenberg, in which the plaintiff declared for work done and materials furnished in the construction of a two-story brick back building for defendant.</p> <p>There was a written contract between the parties for the construction of this building, but the plaintiff averred such changes and alterations in the plan and construction of the building as amounted to an abandonment of the written contract, and entitled him to recover the reasonable value of his work and labour, irrespective of the contract price.</p> <p>The testimony showed some modification of the original plan, hi consequence of which the bill for glazing was increased from $35 to $62; that twenty-three panel-doors beside closet-doors were required instead of eleven or twelve named in the contract; that a water-closet was put outside instead of inside of the building ; with other alterations, swelling the cost of the building from $925, the contract price, to about $1600.</p> <p>The plaintiff requested the court (Hayes, P. J.) to charge as follows:—</p> <p>1. If the written contract entered into by the parties was abandoned, in the construction of the building, then the plaintiff, Shaeffer, may recover the reasonable value of the same, irrespective of the contract price, giving credit for what he received on account.</p> <p>2. This abandonment may have been express or implied. If the changes and alterations ordered and acquiesced in by Geisenberg amounted to a new building, or were essentially different from the building contracted for, then the plaintiff is entitled to recover their whole value, giving credit for what was paid.</p> <p>3. Whether the written contract was abandoned or not, Shaeffer is entitled to recover, in this action, a fair compensation for any extra work which Geisenberg ordered and promised to pay.</p> <p>4. If Geisenberg, either expressly or impliedly, waived any objection which he may have had to work which he alleges was omitted by Shaeffer, then he cannot now make such omitted work a set-off to the value of the extra work which he ordered.</p> <p>Which were answered as follows :—</p> <p>“ 1. If the contract between these parties for the building in question had been expressly and clearly abandoned by them, they would have been left by their own understanding, as if no contract were made between them, and in that case the plaintiff having erected the building for the defendant, would have been entitled to demand in an action of assumpsit, so much money of the defendant, as his work and services, &c., were reasonably worth. But the question is: Was the written and sealed contract between them actually abandoned ? for, being proved to have been made, it must govern, unless it is clearly and distinctly proved that it was mutually abandoned by them.</p> <p>“ 2. Such proof may be established by express evidence that the parties met together and agreed to abandon and throw up the contract, or by positive evidence, that the defendant had expressly admitted, that the written contract was given up and relinquished by him; and, in general, an entire change in the form and purpose of the building (if such change were not comprehended by the terms) would show by implication, that the original contract was abandoned. Where, however, the stipulations of the written contract provide for the changes or alterations alleged to have been made, there is no reason for saying that the contract was abandoned on account of the alterations and changes.</p> <p>“ 3. Thk position cannot be maintained. If the contract under seal subsists, it must determine the rights and remedies of the parties. The action of the plaintiff, to be sustainable, must be brought upon the contract. It should be an action of covenant on the contract, and not an action of assumpsit, as this is, which ignores the contract.</p> <p>4. I cannot understand how the waiving of such an objection to the work referred to, would effect the- defendant’s right equitably to claim that the value of-the omitted work should be considered in the allowance for the extra work.”</p> <p>The defendant presented the following points:—</p> <p>1. There can be no implied contract to pay for work, where there is an express contract and as it is shown in this case; that there is an agreement under seal for the construction of the building for which suit is brought, the only remedy can be by suit on the agreement, and this action cannot be maintained.</p> <p>2. There is nothing in this case to rescind or avoid the contract, on account of alterations or changes, because the contract itself provides for alterations and changes.</p> <p>3. Upon the whole evidence in this case, the plaintiff is not in law entitled to recover, and the verdict must be for the defendant.</p> <p>Which were answered as follows:—</p> <p>“ 1. This is true as a general principle, and is more especially true where the contract is under seal, as it is in this case. The contract of the parties, in every case, is the law of the case, and regulates their rights in the matter to which it relates. When suit is brought by either party for redress on account of any alleged violation of such contract, it must be founded on the contract, and can be founded on nothing else. The legal remedy in this case being upon the contract between the parties under seal, this action of assumpsit, which ignores the contract under seal, cannot be maintained.</p> <p>“2. I think the alterations made in the building were fully comprehended by the terms of the written contract, and therefore they cannot be regarded as evidence and abandonment of the same.</p> <p>“ 3. I am of opinion, that the plaintiff cannot recover in this action, for the reason assigned in the answer to the first point.”</p> <p>Under these instructions there was a verdict and judgment for defendant; the plaintiff thereupon sued out this writ, and assigned for error the answers given to the foregoing propositions.</p>

<p>Error to the Common Pleas of York county.</p> <p>This was an amicable action in debt entered in the court below, in which David Schwartz, administrator with the will annexed of Sarah Felty, deceased, for the use of the parties legally entitled, was plaintiff, and Stephen Keefer was defendant, and in which the following case was stated for the opinion of the court:—</p> <p>Henry Grove, of Spring Garden township, York county, was seised of two small tracts of land lying near to each other, in said township, containing together about twenty-eight acres, the one piece about twenty-four acres, the other about three acres, being woodland, and being seised thereof, on the day of February, A. d. 1856, made his last will and testament, which after his death was duly admitted to probate by the Register of York county, which will is hereunto annexed and made a part of this case. After said will was executed, said Henry Grove sold said two tracts of land in Spring Garden township, for $6000, and moved to Hanover, York county, and bought the house and lot and half-lot of ground, situate in Hanover, York county, the subject of controversy in this suit, and died seised thereof in fee.</p> <p>On the 8th day of March, A. D. 1859, Henry Felty and Sarah Grove, widow of said Henry Grove, deceased, entered into a marriage contract, a copy of which is hereunto annexed and made a part of this case. After which, said Sarah Grove intermarried with said Henry Felty.</p> <p>On the day of April, A. D. 1860, said Sarah Felty executed her will, which after her death was duly admitted to probate by the Register of York county, which will is hereunto annexed and made a part of this case. Henry Felty and John H. Aulabaugh, the executors named in said will of Sarah Felty, renounced, and letters of administration with the will annexed were duly granted to David Schwartz, the plaintiff in this suit. Said Henry Felty declined and refused to accept under the provisions of said will, and claimed his share under the Acts of Assembly of this Commonwealth.</p> <p>It is admitted Henry Felty claims no interest in the house and lot and half-lot of ground sold to defendant in this suit, and so informed said defendant. Henry Grove, at the time of making said will, was seised of no other real estate than that lying in Spring Garden township, hereinbefore mentioned, and at the time of his death of no other than the house and lot and half-lot of ground in Hanover. The inventory of his personal estate at the time of his death amounted to $12,218.07. Henry Grove never had any children, his heirs at law being a brother and nephews and nieces at the time of his death. Sarah Felty never had any children, and at the time of her death had no other real estate, nor power to devise any other than that devised to her by the will of her late husband, Henry Grove, as therein devised to her. Her personal estate, other than what she is entitled to under said will,‘being savings out of interest, amounts to about $978.54. She, said Sarah, before her death, also gave up the notes in favour of Henry Grove, for $1060, and received notes therefor in her own name.</p> <p>After letters of administration with the will annexed on the estate of said Sarah Felty, deceased, were duly granted to said David Schwartz, he advertised and sold said house and lot and half-lot of ground in Hanover aforesaid, to said Stephen Keefer, for the sum of $2125, and tendered him a deed therefor with the proper revenue stamps thereto attached and cancelled, which deed is hereunto attached and made part of this case.</p> <p>Stephen Keefer, said defendant, declined to accept said deed, because; as he alleged, the said real estate would not be thereby transferred to him.</p> <p>. If the court should be of the opinion, under the facts above stated, that the said property would be by said deed conveyed to said Stephen Keefer in fee, then' judgment to be entered for the plaintiff for the use aforesaid for said sum of $2125, the purchase-money of said property.</p> <p>If, however, the court should be of the opinion that the said house and lot and half-lot of ground would not be vested in said Stephen Keefer by said deed, if delivered, then judgment to be entered for the defendant for costs.</p> <p>The will of Henry Grove, after directing the payment of his debts and funeral expenses, proceeded as follows :—</p> <p>“ Also — I give, bequeath, and devise unto my wife Sally Grove all my property and estate, real and personal, rights and credits whatsoever may belong to me at the time of my decease, to be absolutely her own for and during her life, giving her full pewer to collect and receive all or any debts due me or to become due at her pleasure, if in any case or cases it may be necessary to bring suits she may order it to he done in the name of my executor for her use, being herself responsible for costs, if any. And- all or any residue of my estate over and above the special legacies hereinafter bequeathed, she may dispose of by her will, together with such estate as she may acquire as her own. She may sell the real estate or any part thereof, and execute the necessary title therefor, which shall be as good to the purchaser as if made by myself in my lifetime, but shall always beep as much secure as will pay the legacies herein bequeathed, and her estate shall be liable for the amount, to be paid after her death.”</p> <p>Then followed four specific legacies, amounting to $3500. After which the testator continued:—</p> <p>“ All the above legacies specified ’to be paid to said legatees or their legal representatives, as soon after my wife’s death as can conveniently be. If there should not be sufficient assets to pay the said specific legacies, they shall receive proportional parts, so far as the assets will reach, as full satisfaction. By this I mean that if my wife Sally Grove should not have enough over and above the amount of the above legacies to live comfortably, she may take or appropriate as much of my estate as she may from time to time deem necessary for her comfortable living, and in that case my legatees hereinbefore named shall be satisfied with their proportional parts of what may be left, or if she should require the whole of said amount of legacies for her comfortable living, said legatees must be satisfied without receiving any part thereof. But she cannot by her will bequeath to others any portion or all said amount of legacies by me herein bequeathed ; she can only use said amount of legacies or such part thereof as she may have need for her comfortable living during her life.”</p> <p>Then followed the appointment of an executor, and the will concluded in the usual form.</p> <p>The marriage contract between Henry Eelty and Sarah Grove was as follows:—</p> <p>“This indenture, made between Henry Felty, of Union township, Adams county, and state of Pennsylvania, of the one part, and Sarah Grove, widow, of Hanover, York county, and state aforesaid, of the second part. Whereas, the said Henry Eelty is seised of certain real estate in said county: And whereas, a marriage is intended shortly to be had and solemnized between the said Henry Felty and the said Sarah Grove, upon the contract of which marriage the said Sarah Grove hath agreed that if the same shall take effect, then, notwithstanding the said marriage, she, the said Sarah Grove, her heirs, executors, administrators, and assigns, shall not intermeddle with, or have any right, title, or interest, either in law or equity, in or to any of the rents, issues, and profits of said land, nor any dower of thirds, under the intestate laws of this commonwealth, in and to said land, issues and profits of said land, or any other lands or real estate which said Henry Eelty may acquire by purchase or descent whatsoever, during said coverture, or upon the death of said Henry Felty. And the said Sarah Grove, in consideration of one dollar to her in hand paid bysaid Henry Eelty, as web as in consideration of the premises, doth hereby relinquish all claim, demand, and interest in and to all real estate which said Henry may now be seised of, or which he may be seised of at the time of his decease, and all dower or thirds and all interest and claim, dower or thirds, which she could or may or might have in and to any real estate of which said Henry may be seised of at the time of his decease, if she should survive him. And the said Sarah Grove • doth hereby bind herself, and agrees that said Henry Felty shall have full permission and right to sell and dispose of, either by deed or his last will and testament, any and all real estate which he now owns or which he may hereafter acquire in any'manner whatsoever, notwithstanding the-said marriage of said parties. It is hereby fully agreed and declared, that said Henry Felty shall have as full control, power, and right to do with any and all real estate which said Henry Felty may now be seised of, or which he may acquire during the said contemplated marriage, as if he were single and no marriage had taken place, and to dispose of the same by deed or will as freely and effectually during said coverture as if no marriage had taken place, so that said Sarah Grove (after said marriage), her heirs, executors, and administrators, cannot claim or demand any dower or thirds, or any interest whatsoever in any real estate during said coverture or at his decease, in case she should survive him.</p> <p>“ Witness our hands and seals, this 8th day of March, a. d. 1859.</p> <p>“ Acknowledged before George E. Bringman, a justice of the peace for Adams county,- on the "8th day of March 1859, and recorded.”</p> <p>The will of Sarah Felty was as follows: — After directions in relation to her debts, funeral expenses, and burial, it contained the following proviso :—</p> <p>“ I direct my executors to sell my house and lot after my death to the best advantage as soon as may be, either the house with half the lot, separate, or else the whole together, as they may find it best to sell for the highest price.”</p> <p>After disposing of her clothing, and directing the balance of her real and personal estate to be divided among her twenty-three nephews and nieces, she added—</p> <p>“ All my estate, real, personal, and mixed, I so bequeath as above mentioned, and authorize my executors to make and execute good and sufficient titles for any real estate they may sell, the same as I myself could if living, for what they sell after my death.”</p> <p>Then followed the appointment of the executors, and the usual formal conclusion.</p> <p>The deed of plaintiff recited the will of Henry Grove, the marriage contract between his widow, Sarah Grove, and Henry Eelty, her will as above given, the renunciation of Henry Eelty and John H. Aulabaugh, who had been named therein as executors, the appointment of David Schwartz, and the public sale of the property by him after due legal notice, and then conveyed the property to Stephen Keefer in the usual form.</p> <p>The court below (Eisher, P. J.) filed the following opinion :—</p> <p>“ April 29th 1864. This case having been this day argued, and an immediate decision asked by counsel, so that it may be reheard by the Supreme Court at its next session, which will commence in a few days, upon the impressions received from the argument, and without further consideration, we render judgment for the plaintiff for $2125 for the use of David Schwartz, executor of Henry Grove, deceased. Being of opinion that under the will of her husband, Mrs. Grove took only a life estate with a power of appointment, and that the direction in her will 'that my executors sell my house and lot after my death,’ is an execution of the power, she having no title or claim to any other real estate than that acquired by the will of her husband; said houses and lot being the only real estate that her husband died seised of.”</p> <p>Which was the error assigned.</p>

<p>Application of trust estate to case of “ urgent necessity” of cestui que trust. — Liability of trust estate to support of lunatic.</p> <p>1. The estate of a married woman created by will and held in trust to apply the interest in the purchase of the necessaries of life, and the principal, “ if urgent necessity should require,” held, upon her becoming insane, and her removal to the State Lunatic Hospital by order of court at the charge of the county; to be liable for the expenses of her support and maintenance, where her husband was in indigent circumstances.</p> <p>2. The county is primarily liable for the expenses of maintenance, but the directors of the poor may recover the sum paid from the estate of the lunatic.</p>

<p>Error to the Common Pleas of Lancaster county.</p> <p>This was an action of trespass vi et armis by Peter Hunsicker against Jacob Stoner, in which, under the ruling of the court below (Hates, P. J.), there was a verdict and judgment for the plaintiff, followed by a writ of error by the defendant.</p> <p>The whole case will be found in the opinion of this court.</p>

<p>Error to tbe Common Pleas of Somerset county.</p> <p>This was an action of assumpsit, brought April 11th 1862, by Armor Young against Levi Wolfensberger and-Huntsberger, late partners doing business as Wolfensberger & Huntsberger, to recover a book account for goods sold to the firm October 15th 1851.</p> <p>To avoid the Statute of Limitations, the plaintiff gave in evidence the following letter :—</p> <p>“ Union Deposit, March 2d 1857.</p> <p>“ Mr. A. Young.</p> <p>“Dear Sir — I thought of writing to you in regard to the balance of the firm of Wolfensberger & Huntsberger, of Harrisburg. You still said you would not release us until we pay you the $100. Would you release me if I would give you a note of $50 for my part, payable in six months, with my brother Philip on for security ? I could get along this way. I have no chance to get up. I have a man that would help me up a little, providing I can arrange matters to go in my own name. I do not know whether my brother will even go my security, but I think he will. I have no doubt Huntsberger will do his part also, if he has time, but at present he says he can’t. If you wish to know anything of my brother Philip, inquire by Peter Lefever. I do hope you will give me a chance to get up again.</p> <p>“ Direct, Union Deposit, Dauphin county, Pennsylvania.</p> <p>“Levi Woleensberger.”</p> <p>And thereupon requested the court to instruct the jury that it was sufficient for this purpose; which was done; and this was the error assigned here, after a verdict and judgment for plaintiff.</p>

<p> Sum claimed by substitute for military services reduced on proof of absence from the army during the time for which principal was /drafted. </p> <p>One wlio enters the military service of the government as a substitute for a drafted man, receiving in part consideration his promissory note, cannot recover upon it, except for the time of service, where during the term he had deserted, though before its close he had returned to the army and remained until he was honourably discharged upon the expiration of his term.</p>

<p>Error to tbe Common Pleas of Lancaster county.</p> <p>This was an action of debt on a bond by Jacob Leber, for the use of George Weidler’s executors, against John W. Gross, Martin Gross, and Jacob L. Gross, trustees of Ann Albright.</p> <p>The bond of defendants, dated April 25th 1848, was in the penal sum of $1000, conditioned for the payment of $498.86, on the 1st day of April 1849, with interest from, date. On the 2d of April 1849, it was assigned to George Weidler, who died since suit brought; whereupon it was marked to the use of his executors.</p> <p>On the trial the plaintiffs proved the execution and transfer of the .bond, offered the bond and assignment in evidence, and closed their case.</p> <p>The defendants then under the plea of payment, and payment with leave, &e., admitted that John Gross died on the 18th of July 1847, that he was the father of the obligors in the bond given in evidence, and that letters of administration were granted to defendants 24th of August 1847.</p> <p>That in 1844, Ann Leber (since Albright) executed a deed of trust to John Gross aforesaid, but these parties, John W. Gross, Martin Gross, and Jacob L. Gross, never were trustees, and offered:—</p> <p>“ Deed of trust executed by Ann Albright on the 4th of December 1844, to John Gross and delivered to him, granting a certain tract of land therein mentioned to Ann Leber, now Ann Albright. Recorded in Record Book, Vol. 7, B, p. 505. The petition of Ann Albright, 26th January 1852, on which the court appointed John W. Gross, trustee in room of John Gross, deceased, of the said Ann Albright. At the same time the trust was accepted, and bond approved of John W. Gross for $8000which was offered to show that when this bond was executed the said J. W. Gross, Martin Gross, and Jacob L. Gross were not trustees of Ann Albright; that she was not present at the time, had no knowledge of the transaction and gave no consent to it; that this whole question was investigated by the auditor appointed by the court to make distribution of the proceeds of Ann Albright’s estate, whose report was confirmed, as shown by the opinion of the court, August 15th 1862; which proceedings were also made part of this offer, and that Jacob G. Leber is the present trustee, having-been appointed October 20th 1862. It was also proposed to show that “there was nothing due from the three defendants as individuals, or on their individual account, to the estate of Ann Leber or Albright, and that in executing the bond in suit, they acted under a mistake of their rights, supposing that because they were administrators of their father, John Gross, they were also trustees of Ann Albright.” This whole offer was objected and overruled by the court; which was the error assigned here by the defendants, after a verdict and judgment in favour of plaintiffs.</p>

This was an amicable action in the court below, in which John F. Shroder and Elizabeth his wife, to the use of said Elizabeth, were plaintiffs, and Henry D. Musselman, Samuel Platz, and Wayne Bender, executors of John Hatz, deceased, were defendants, and in which the following case was stated for the opinion of the court:— On the 20th of November 1856, John F. Shroder, being seised in fee of a certain large house and lot of ground in the city of Lancaster, granted and…

This action came into the court by appeal from the judgment of a justice of the peace, in an action of debt, in which the County of Fulton was plaintiff, and John W. Tate and John W. Lingenfelter were defendants. By agreement of counsel the following case was stated for the opinion of the court, in the nature of a special verdict.

<p>Error to the Common Pleas of Cumberland county.</p> <p>This was an action of debt brought by John W. Leidig and Mary Ann his wife, against Daniel Bailey and Daniel Coover, executors of Jacob Coover, deceased, to recover wages for services rendered to her father after she had obtained the age of twenty-one years.</p> <p>Mrs. Leidig was twenty-one years of age in July 1838; was married in February 1856, and for a period of over seventeen years lived with her father part of the time, and part of the time with her brothers, Michael and Jacob Coover, who were on a farm of their father’s, which they farmed with his stock, and for his use and benefit, she living with them in the capacity of housekeeper.</p> <p>The witness relied upon to prove a contract, was a brother-in-law of the plaintiff, who testified that in 1851 old Mr. Coover told him he would pay his boys $40, and his girls $20 per annum. That he had said this frequently, and that he had heard him say so in 1853. A daughter of deceased testified, she heard her father say that of those children that worked over age, he was going to pay the boys $40 and the girls $20 per annum; that he said so frequently, and the last time she heard him say so was about twelve years since. Another son-in-law testified, that decedent told him he intended to pay his children for what they worked over age; said he would pay his boys $40 and his girls $20 per year, and their clothes and spending-money, such as they needed, and that he told witness this in 1855. Another witness stated, that in 1856, after the plaintiff was married, old Mr. Coover told her that Mrs. Leidig did not get as much from home as the others, but what she did not get in furniture she should have in money, and what she worked over age she should be paid for. This was all the evidence relied upon to prove a contract; but the father, the deceased, afterwards made his will, in which he distributed his estate nearly equally among all his children.</p> <p>The court below (Graham, P. J.) after stating the facts, instructed the jury as follows :—</p> <p>“ In accordance with the oft-repeated decisions of the Supreme Court, it is our duty to say to you, and it would he error if we failed to do so, that the evidence is altogether insufficient to prove a contract between the father and daughter in this ease, and you will therefore render a verdict for the defendants,” which was the error assigned by the plaintiff.</p>

<p>Certiorari to the Quarter Sessions of York county.</p> <p>This was a proceeding in the court below to lay out and open a public road in Heidelberg township.</p> <p>The record presented the following case:—</p> <p>June 10th 1862. — A petition for a road was presented to the court, and viewers appointed.</p> <p>August 28th 1862. — The report of viewers was filed, confirmed nisi, and the width fixed at twenty feet.</p> <p>October 30th 1862. — Exceptions were filed; and</p> <p>November 3d 1862. — A petition for review filed, and reviewers appointed.</p> <p>March 3d 1863. — The exceptions were dismissed, and the report of viewers confirmed by the court.</p> <p>On the 16th March 1863. — An order to review issued.-</p> <p>April 27th 1863. — Report of reviewers was filed and confirmed nisi, and the court fixed the width at twenty feet.</p> <p>May 13th 1863. — The following exceptions were filed for John Troné and others.</p> <p>1. That the review was had under an order of court which had expired.</p> <p>There were other exceptions, but the only one sustained by the final order or judgment of the court was the first.</p> <p>The record showed that the reviewers were appointed November 3d 1852, and were ordered to report to the next court, but they did not report until April 27th 1863. This was the error assigned here.</p>