Volume 5 — Sadler's Pennsylvania Reports

January Term, 1887,. No. 70, E. D., before Mercur, Ch. J., Cordon, Paxson, Trunkey, and Sterrett, JJ. Appeal from a decree of the Common Pleas No. 3 of Philadelphia County dismissing a bill for an account. The bill, answer, and replication were filed in 1863, and a master appointed. After hearing the evidence and arguments of counsel, the master died, and the papers of the case were lost.

January Term, 1887, No. 52, E. D., before Mercur, Ch. J., Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Appeal from a decree of Common Pleas No. 13 of Philadelphia County dismissing on demurrer a bill in equity.

<p>Appeal from the Court of Common Pleas No. 4z of Philadelphia County.</p>

<p>July Term, 1886, No. 54, E. D., before Mercur, Ch. J., Gordon, Paxson, Trunket, Sterrett, and. Green, JJ. Error to the Common Pleas No. 4 of Philadelphia County to review a judgment on a verdict for plaintiff in an action on the case.</p> <p>The facts are stated in the following opinion of the court below, on a motion for a new trial, by Arnold, J.:</p> <p>The plaintiff, a resident of Yorktown, New Jersey, is in the business of storekeeping, and buying, selling, and shipping poultry. In the month of October, 1884, he wrote to A. & M. Eobbins, poultry dealers in the city of New York, inquiring what they would give for good young turkeys, and received this answer by telegraph:</p> <p>Eorm No. 1,| West Jersey Eailroad Corn-Telegraph. j pany’s Telegraph.</p> <p>Erom New York. 10-15-1884.</p> <p>Eor Wilbert Eichman.</p> <p>Thirty-three cents for good young turkeys.</p> <p>A. & M. Eobbins.</p> <p>When the plaintiff received this message from the operator,he said to him: “Tom, that seems high; haven’t you made a mistake ?” The operator replied: “I thought it was high, too, and I asked back whether they meant thirty-three and they said jes.”</p> <p>The plaintiff thereupon went out into the adjacent country and bought 2,900 pounds of turkeys at twenty-five cents a pound. He shipped them to the Messrs. Eobbins on October 11, 1884, billing them at thirty-three cents a pound. The buyers ■declined to pay that price, and sent on the pay at the rate of twenty-two cents a pound, which was the amount they agreed to pay. The cost of packing and shipping to New York was one ■cent a pound, so that the actual loss which the plaintiff sustained was four cents a pound, while his loss of prospective profits was seven cents a pound.</p> <p>The message which the Messrs. Robbins sent was plainly written:</p> <p>The Western Union Telegraph Company. .</p> <p>Send the following message subject to^j the terms printed on the back here-}- October 15lh, 1885. of, which are hereby agreed to. j</p> <p>To Wilbert Richman, Yorktown, N. J.</p> <p>'Twenty-two cents for good young turkeys.</p> <p>A. & M. Robbins.</p> <p>Read the Notice and Agreement on the Back of this Blank.</p> <p>The terms were substantially that, to guard against mistakes, the sender of a message should order it to be repeated; that the company shall not be liable for mistakes in any unrepeated message, nor for mistakes in any repeated message beyond fifty times the sum received for sending the same, unless specially insured; and that no employee of the company is authorized to vary the foregoing.</p> <p>The plaintiff also testified that he had used the same forms in sending telegrams, and that he had them in his store; that he knew that Tom, the operator, telegraphs to or terminates at Philadelphia, and supposed that he asked back there; that was what he, the plaintiff, understood the operator to mean, although he did not give it a thought as to what place the operator meant when he said that he had asked back. The plaintiff did not have the message repeated or make any effort to verify the dispatch, other than the inquiry above mentioned. It was admitted at the trial that the defendant, if liable at all, is liable as though the Yorktown office was on its own line and under its control and the operator in its employment.</p> <p>The defendant offered no testimony; whereupon, the jury were told that the plaintiff was entitled to recover the difference between the amount he paid for the turkeys and cost of transportation to New York, twenty-six cents a pound, and what he received for the turkeys, twenty-two cents a pound, that is four cents a pound on 2,900 pounds; but that he was not entitled to recover for the loss of any prospective profits.</p> <p>Where an action is brought for the loss sustained by acting upon a telegram, which, owing to the negligence of the agents of the telegraph company, was altered or in any respect untrue, tbe action sounds in tort, and is for a loss wholly different from that which the sender sustained through the nonperformance of the contract. This point is settled by many decisions.</p> <p>It will be sufficient to refer to the New York & W. Printing Teleg. Co. v. Dryburg, 35 Pa. 298, 18 Am. Dec. 338, and Harris v. Western IJ. Teleg. Co. 9 Phila. 88, for a decisive statement of the law of this state on this question. Both of these cases have been adopted by courts and text-book writers, to such an extent that they may well be relied upon in similar cases as decisive adjudications of the law in this respect. The action is not founded upon the contract, but upon the negligent act of the company in altering the message, thereby entailing a loss upon the receiver.</p> <p>The law is otherwise as to the receiver in England. Play-ford v. United Kingdom Electric Teleg. Co. L. K,. 4 Q. B. 706.</p> <p>It is said, however, that the plaintiff (by his former use of telegraph blanks and keeping them on hand) had notice of the regulation of the company, requiring messages to be repeated to secure accuracy and indemnity from loss. That point may be conceded, so far as the sender of the dispatch is concerned, and it -was so ruled in Breese v. United States Teleg. Co. 48 N. Y. 132, 8 Am. Pep. 526, but I have not been able to find any ruling that the receiver of the dispatch is so affected.</p> <p>Telegraph companies recognize this difficulty, and to avoid it usually deliver the message on a form which states that the ■company transmits and delivers messages only on conditions limiting its liability, which conditions have been assented to by the sender, and informing the receiver that the message is •an unrepeated message, and that the company will not hold itself liable for errors or delays in unrepeated messages,- etc. ■Otherwise, the receiver would not know whether the message had been repeated or not. There was no such notice on the form used in delivering the erroneous message to the plaintiff in this case.</p> <p>In Ellis v. American Teleg. Co. 13 Allen, 226, it was held that the right of the receiver to sue the company must be treated as a right derivative through the sender, and that-if the sender has no right to complain, because of his failure to order the message to be repeated, the receiver cannot sue.</p> <p>In Aiken v. Western U. Teleg. Co. 5 S. O. N. S. 358, it was held, that an express stipulation in the contract binds the receiver as well as the sender; and this was followed in Western U. Teleg. Co. v. Reill, 57 Tex. 283, 44 Am. Rep. 589.</p> <p>Of all these eases, it may be well to observe that, while the claims .of the plaintiffs were laid in tort, yet they were treated and disposed of as if they were brought upon the contract; and that they are at variance with the decision of the supreme court of this state in New York & W. Printing Teleg. Co. v. Dryburg, 35 Pa. 298, 78 Am.'Dec. 338.</p> <p>In Sweatland v. Illinois & M. Teleg. Co. 27 Iowa, 433, 1 Am. Rep. 285, the action was brought by the receiver; but the sender was his agent; and consequently the contract with the agent bound the principal; and the same may be said of Neill’s Case in Texas.</p> <p>It is .said, further, that the plaintiff knew that the dispatch was incorrect, or rather that he had suspicions of its correctness, which put him upon inquiry and so affected him with knowledge; and that the statement of the operator, that he had asked back and that the message was correct, did not relieve the plaintiff from the duty to order the message to be repeated, because the company’s blanks contain a condition that no employee of the company is authorized to vary the terms of the agreement.</p> <p>This contention would be of much weight if the action had been brought upon the contract, and the company was an insurer of the correctness of messages transmitted by it. Then, there being no consideration paid for the insurance or for repeating the message, the plaintiff would have no right to complain. The prime object of the agreement is to secure accuracy in transmitting the dispatch; the earning of a premium or pay for repeating the message is secondary. When the plaintiff asked the operator if the message wras correct, and was told that he had already asked back and that they said yes, what use or necessity was there for the plaintiff to do the vain act of again repeating it? That would be re-repeating it, and the question naturally arises: When is repeating to stop ? Had the operator said that the message was correct, without saying he had asked back, there might be some force in the argument of the defendant that the message had not been repeated, and that the operator could not waive the condition requiring its repetition. That would have been a waiver of the condition; but saying that he had already asked back was not a waiver of it.</p> <p>We are aware that the supreme court of Texas, in Neill’s Case, 57 Tex. 283, 44 Am. Hep. 589, ruled that in an action ex contractu the failure to require the message to be repeated exonerated the company from liability, and that it was not a sufficient excuse for the plaintiff to show that he relied upon the declaration of the operator that he had already repeated the word (which was erroneous), and that it was sent as he delivered it. To permit this, the court said, would be to allow the hearsay statement of the operator to vary the terms of the contract made wifh the principal; and this, not only without consideration, but by retaining the consideration agreed upon for the guaranty against error. This, it will be remembered, was said in a case where the relation of principal and agent existed between the sender and receiver, and in an action ex contractu. How the operator could give anything but a hearsay statement we are not informed. We are unwilling to follow that reasoning in this case.</p> <p>In an action against a telegraph company for the injury sustained through acting upon an altered message, the plaintiff establishes, prima facie, the negligence of the company, by proving the difference between the message which the company was employed to deliver and that which it did deliver to him. Gray, Communication by Telegraph, § 77, and cases cited.</p> <p>That was shown in this case; and, no legal excuse or defense being offered by the company, the verdict for the plaintiff was right.</p> <p>The court charged the jury that,—</p> <p>“Under the evidence in this case the plaintiff is entitled to recover in this action, and the measure of his damages is four cents a pound on 2,900 pounds of turkeys.”</p> <p>The assignment of error specified this charge to the jury.</p> <p>The plaintiff below having authorized Messrs. Bobbins to telegraph him the price of turkeys in New York, they must be considered his agents in so doing; and he is therefore bound by the contract, indorsed on the message and agreed to by them. Pass-more v. Western U. Teleg. Co. 78 Pa. 238-243; Sweatland v. Illinois & M. Teleg. Co. 27 Iowa, 433; Hart v. Western U. Teleg. Co. 66 Cal. 579, 56 Am. Dec. 119, 6 Pac. 637; Red-path v. Western II. Teleg. Co-. 112 Mass. 71, 17 Am. Pep. 69; Camp v. Western II. Teleg Co. 1 Met. (Ky.) 164; Ellis v. American Teleg. Co. 13 Allen, 226; Breese v. United States Teleg. Co. 48 N. T. 132, 8 Am. Hep. 526; Western U. Teleg. Co. v. Neill, 57 Tex. 283, 44 Am. Hep. 589.</p> <p>The relation to the telegraph company was a derivative one, depending upon the contract between the sender of the message and the company. Ellis v. American Teleg. Co. 13 Allen, 226-238; Aiken v. Western U. Teleg. Co. 5 S. C. N. S. 358 — 371; Sweatland v. Illinois & M. Teleg. Co. 27 Iowa, 433, 1 Am. Eep. 285.</p> <p>The case of New York & W. Printing Teleg. Co. v. Dryburg, 35 Pa. 298, 78 Am. Dec. 338, which will be cited as deciding otherwise, is, as to this, contrary to well-considered decisions in other states, although well decided, and since followed elsewhere upon the real point involved. The liability in that case arose from the action of the company’s employee in altering the message.</p> <p>In delivering the message in this case the telegraph company assumed only to deliver the message of Messrs. Bobbins, and for any error of the company in such delivery Messrs.' Bobbins were responsible, exactly as they would have been had their clerks or buyers or salesmen made the mistake. Bose v. United States Teleg. Co. 3 Abb. Pr. N. S. 408; Western U. Teleg. Co. v. Shotter, 71 Ga. 760; New York & W. Printing Teleg. Co. v. Dryburg, 35 Pa. 298-302, 78 Am. Dec. 338.</p> <p>The effect of the rule in this case is manifest, for although Messrs. Bobbins were liable to the plaintiff, the telegraph company was not liable to Messrs. Bobbins by reason of the stipulations under which it undertook the employment.</p> <p>The plaintiff was guilty of contributory negligence in not requiring the message to be repeated, particularly as he knew the rule of the company and lie suspected the message was wrong. Wabash, St. L. & P. B. Co. v. Jaggerman, 115 Ill. 407, 4 N. E. 641; Gray, Communication by Telegraph, § 76; Western U. Teleg. Co. v. Neill, 57 Tex. 283, 44 Am. Bep. 589; Hart v. Direct United States Cable Co. 86 N. Y. 633.</p> <p>Agency cannot arise merely by reason of the fact that two people in entirely independent positions, dealing with each other at arm’s length, employ the public telegraph system as a means of communication, even although this is done by mutual understanding.</p> <p>By reason of the delivery of a false telegram to the defendant in error the company is guilty of a tort, for the effect of which it is answerable. The law of Pennsylvania upon this •po-’nt is beyond controversy. New York & W. Printing Teleg. Co. v. Dryburg, 35 Pa. 298, 78 Am. Dec. 338, the leading American case; Bigelow on Torts, 624; Harris v. Western U. Teleg. Co. 9 Phila. 88.</p> <p>Wabash, St. L. & P. P. Co. v. J’aggerman, 115 Ill. 407, 4 N. E. 641, has no bearing upon the question upon which it is cited.</p> <p>In Western IT. Teleg. Co. v. Neill, 57 Tex. 283, 44 Am. Pop. 589, the false telegram upon which the plaintiff acted was sent by his agent, acting ostensibly as his agent, and so declared to be by the plaintiff himself.</p> <p>The same facts existed in Sweatland v. Illinois & M. Teleg. Co. 27 Iowa, 433, 1 Am. Pep. 285; the sender of the message was avowedly the agent of the plaintiff, the receiver. And, as the court below observes with regard to Neill’s Case and the two cases from South Carolina and Massachusetts, the right of action in all of them was treated as though having arisen under the contract. In ITart v. Direct United States Cable Co. 86 N. Y. 633, a mistake )ccurred in transmission, which rendered the telegram as delivered, in the language of the report, “an unintelligible jargon,” and the party was clearly guilty of contributory negligence, in endeavoring to act upon it.</p> <p>In Ellis v. American Teleg. Co. and Aiken v. Western U. Teleg. Co. the cases were treated upon the theory that the right of the receiver rested only upon the contract, and upon that theory it was rightly decided; but in this state, at least, no doubt can exist that the receiver’s right of action is based, not alone upon the contract, but also upon the tort.</p> <p>The proposition that the defendant is liable, if at all, only in case the message is repeated as contained in the printed conditions, can be invoked only against the sender of the message, if against any; for it is his message, his language that is to be transmitted, and it is only known to the receiver when delivered, and as delivered. He is to be guided or informed by what is delivered to bim, and be bas no opportunity to agree upon any such condition before delivery. JDe La Grange v. Southwestern Teleg. Co. 25 La. Ann. 388. See also He Butte v. New York, A. & B. Electric Magnetic Teleg. Co. 1 Haly, 547.</p>

<p>General words in a conveyance passing all ways with the land conveyed, occupied or enjoyed, will not convey to the vendee a way which originated in the user by the vendor of his own land for his own convenience, and which had no existence prior to the unity of possession of the vendor.</p> <p>A covenant by a lessor to convey to the lessee at his option for a fixed price and during the term, “the lot of ground and buildings thereon erected and now leased to him,” the description in the lease ending with the words “the lessee to take the buildings as they now stand,” does not give the lessee a right to a conveyance of the soil of an alley not included in the metes and bounds, but over which the second story of the demised buildings extended.</p> <p>Note. — All easements necessary to the enjoyment of the property pass as appurtenances without mention of them. Murphy v. Campbell, 4 Pa. 480. The rule is different where the right is not necessary, but merely convenient. Howell v. M’Coy, 3 Rawle, 271; Messer v. Rhodes, 3 Brevst. (Pa.) 180. A right of way appurtenant to the land is appurtenant to every part, and if the land is divided, each grantee has an interest in it. Myers v. Birlcey, 5 Phila. 167; Bhret v. Gunn, 166 Pa. 384, 31 Atl. 200; Ermentrout v. Stitzel, 170 Pa. 540, 33 Atl. 109.</p>

•January Term, 1887, No. 49, E. D., before Merour, Ch. J., Goedow, PaxsoN, TruNicey, Sterrett, and GrebN, JJ. Error to Common Pleas No. 2 of Philadelphia County to review a judgment on a verdict for the plaintiffs in an action of scire facias sur mortgage. This was an action by Ann Erb et al., mortgagees, against Jacob M. Myers and Abraham B. Myers, mortgagors, with notice to the Lafayette Building, Saving, & Loan Association, terretenant, to foreclose a mortgage.

January Term, 1887, No. 86, E. D., before Meecue, Oh. J., GoeboN, PaxsoN, Te.uNkiey, Steebett, and GeeeN, JJ. Appeal from a decree of Common Pleas No. 1 of Philadelphia County sustaining a demurrer to a bill in equity.

<p>January Term, 1887, No. 134, E. D., before Mercur, Cb. J., GoedoN, PaxsoN, Trunicey, Sterrett, GreeN, and Clare,. J J. Error to tbe Common Pleas of Eayette County to review a judgment on a verdict for tbe plaintiff in an action of trespass on tbe case for negligence.</p> <p>Tbe facts, as they appeared at tbe trial before Inghram, P. J., are stated in his charge to the jury, which was as follows:</p> <p>Tbe plaintiff in this case, Isaac Kollinson, seeks to recover from the defendants, W. IL Everson, Edwin Miles and D. S. McCrum, who are doing business as the Charlotte Furnace Company, damages for injuries which the plaintiff alleges-were occasioned or caused by the negligence of the defendant company.</p> <p>It is the duty, and incumbent upon the plaintiff in an action of this kind, to prove that the defendant was guilty of negligence, and that in consequence of such negligence alone he received the injuries complained of.</p> <p>It appears from the evidence in the case, which is not contradicted, that the defendant company owns or manages a furnace, either in this or the edge of Westmoreland county; that for the purpose of running the furnace it manufactures coke on the Eayette county side of J acob’s creek; that it runs the coke down an incline to J acob’s creek which it crosses with a bridge; that the coke is then dumped from the cars into the furnace or some place there to receive it on the Westmoreland- county side. It further appears from the evidence in the case that in the month of July, 1881, the defendant company employed the plaintiff, Isaac Kollinson, at- its works, to dump the coke from the cars as they would come down from the coke works, or down the incline, into the furnace across the creek from the coke works. It also appears from the evidence that the plaintiff was employed by the company and was at work for it on the 11th and 12th of July, I believe; and that on the morning of the 12th, he and a Mr. Woods, who was also in the employ of the company, were on the bridge receiving the ears as they came down the incline, and dumping the coke from them, and that while so in the employ of the company and in the discharge of his duty, the bridge fell into the creek below, I believe a distance of between 30 and 40 feet, and that the plaintiff was very badly injured.</p> <p>It is claimed by the plaintiff, and I believe not disputed by any evidence in the case, that he was struck upon the head by some of the timbers of the bridge and injured in the fall; that his skull was injured to a certain extent, that one of his eyes Avas injured, some of his teeth knocked out, his face scratched, his back wrenched, and that his hip was either dislocated or broken; and it is claimed by the plaintiff, that on account of these injuries he was confined to his bed for some time, that he was unconscious for about six days, and that he is permanently injured.</p> <p>It is further claimed by the plaintiff that the testimony of Dr. Rogers goes to show that his hip was' not dislocated, but that there Avas a fracture of the hip; that the fracture could not be reduced at the time, and that by reason of that fracture the one leg is shorter than the other by three quarters of an inch, and that the plaintiff is permanently disabled. About these matters there seems to be very little dispute.</p> <p>But it is claimed by the plaintiff that the testimony shoAvs that this accident was caused by the negligence of the defendant company in not keeping the bridge, which fell, in proper repair. • It is claimed by the plaintiff that at the time the bridge did fall the timbers were rotten, decayed to such an extent as to cause them to fall, or as to render them unsafe for the use to which they were put by the company; and it is claimed by the plaintiff that the evidence showed that the company was aware of this fact; that it had been informed by other employees, prior to this time, of the defect in the timbers of the bridge, and that it had neglected to repair it; and that in consequence of this defect and the neglect of the company to repair it, the accident happened and the injuries were caused for which he is seeking in this action to recover damages.</p> <p>[It is claimed by the plaintiff that the testimony of Mr. Finley, I believe, goes to show that immediately after the accident he heard the noise, ran down to the creek and assisted in taking the plaintiff out from under the timbers, or out of the creek, and that he examined the timbers there and found some of them decayed on the inside, and that some of them were rotten, even to the outside; and it is claimed on the part of the plaintiff that this fact was known to the defendant company, and that it was the defect of the timbers that caused the accident. It is further claimed on the part of the plaintiff that the testimony of other witnesses who were present soon after the accident happened, and who examined the timbers and who saw them there, is to the same effect — that they saw that some of the timbers were decayed — some of them on the inside and others on the outside.]</p> <p>It is also claimed by the plaintiff that the testimony of Mr. Lynch goes to show that a short time before this accident happened he was in the employ of the company, and that he went, upon the bridge and trestle with the blacksmith, I believe, a Mr. Hawthorne, for the purpose of examining the bridge and the timbers of the trestle, to ascertain ‘whether they needed any repairs or not or whether they were in a safe condition; and it is claimed that the testimony goes to show that when they bored into the timbers for the purpose of inserting a bolt or rod of some kind, they discovered that the timbers were rotten, and that Hawthorne requested Lynch to go to Mr. Miles, who was either the superintendent or a member of the firm, and notify Mr. Miles of the discovery, and he claims that he did so; that he told him about the defect in the timber, or rottenness, and that Mr. Miles asked him if they couldn’t repair it in such a way as to make it last a short time, until they could build a new bridge; and it was claimed that this testimony goes to show that the bridge was not only defective, but that the defendant company had full knowledge of the fact, through the parties employed by it to inspect it and keep it in repair; and it is claimed on the part of the plaintiff that for the neglect of the company to repair the bridge at the time it should have done so, when it received the knowledge that it was defective, that the accident happened and that it is now responsible for the accident and for any damages resulting therefrom; that he was injured very badly, as the testimony shows, and, as he claimed, by the neglect of the company to make the necessary repairs upon the bridge at the time it should have done so, and that therefore .he is entitled to recover a verdict at your hands, for such damages as you may find from the evidence he has suffered from the neglect of the defendant company to repair the bridge.</p> <p>On the part of the defendant company, as we have stated, it is not denied that Mr. Eollinson was in its employ at the time it is claimed lie was. It is not denied that he was at the work at which he claims to have been; that he was put there by the superintendent of the company, or by some other person having the right to assign him to that duty; and it is not denied that the bridge fell at the time it is claimed it did; nor is it denied that Mr. Nollinson was injured. The company does claim, however, that he was not injured so badly as he claims to have been, about the back and eyes; that they were not seriously injured, and that the injury to his back and skull, and every injury, except the hip, he has recovered from; and it. denies that there was any liability on its part for this action.</p> <p>It is claimed on its part that, at the time the bridge was built in 1873, it employed competent and skilful workmen to build the bridge, or men whom it believed to be so — had reason to believe so; that the bridge was built by a bridge builder having fourteen years’ experience, a Mr. Boyd; that it was built of proper material; and it is claimed by the company that the testimony of Mr. Boyd goes to show that such a bridge should last from fifteen to eighteen years, and that the testimony of Mr. Boyd goes to show that it had been standing but eight years, from 1873 up to 1881, at the time that it fell; and that the testimony of the witnesses shows that such a bridge should have stood from fifteen to eighteen years, in the use to which it was put by this company; that the materials were of good quality, that the workmanship was all it should be, and that it was a safe bridge; and it is claimed on the part of the defendant company that, having put up such a bridge, it had a right to presume that it would stand for a reasonable time, or for such time as the men who built it had reason to believe, from the material used and the workmanship, it would stand.</p> <p>In addition to this the defendant company claims that it is not liable for the accident or for damages caused by the accident, for the reason that for some time prior to the falling of the bridge it had its employees, different ones — having a carpenter and a blacksmith, the yard or pit boss — all employed around the works, some of them in the immediate neighborhood of the bridge; and that the instructions to these men were that they should exercise constant supervision over the bridge; that they should examine it at the proper time, and if any repairs were needed, to put just such repairs on the bridge as it did need; and it is claimed that the supervision over the bridge was constant, and by men competent to discharge the duties assigned to them, and that they did discharge their duties; that the carpenter visited the bridge at proper times to see whether any repairs were needed, and that if they were it was repaired; and it is claimed that the blacksmith visited the bridge at proper times to tighten up the bolts or nuts, and that if he found any repairs in his line needed on the bridge, he made them at the proper time; and that it thus did everything that was necessary for it to do to insure the safety of its employees.</p> <p>It was further claimed on the part of the defendant company, that it had no knowledge of any defect in the material or workmanship of the bridge; and it denies that it had any information or knowledge, as is claimed by the plaintiff to have been shown to have been given it by the testimony of Mr. Lynch.</p> <p>It is claimed by the plaintiff, as you will remember, that Mr. Lynch notified the company of the fact that the bridge was defective in the timbers or supports; that they were somewhat decayed ; but it is claimed on the part of the defendant company that the testimony of Mr. Hawthorne, the blacksmith, goes to show that he never went on the bridge with Mr. Lynch or anyone else, except his helper, whom he took along with him always when he went to repair the bridge; that he never went with Mr. Lynch, and that he never found any defect there that he could not or did not repair himself; and denied that he sent Mr. Lynch with any such word to Mr. Miles as Mr. Lynch claims he did.</p> <p>It is claimed further on the part of the defendant company, that Mr. Miles testified that he never was notified by Mr. Lynch or anyone else that the timbers had become decayed or the bridge unsafe, and that if they were decayed to such an extent as to render them unsafe, they had no knowledge of that fact and therefore could not repair it, and that the company had taken .all the steps necessary to keep it in proper condition, and that, having clone so, it is not responsible for any accident, and not liable in this case for any damages suffered by Mr. Beilinson.</p> <p>If it employed a man who had the skill and experience, or whom it believed to have had, and the bridge was constructed of proper material, if the defendant company had done all that •could reasonably be expected of it in the original construction of the bridge, and if, after it was constructed, it had suitable persons to examine the bridge from time to time — persons who were competent to discharge their duty, and who did go upon the bridge and make the necessary examination of it, and put such repairs on the bridge as they found it needed from time to time; and if the company had no notice of any defect, in the bridge, rottenness' of timber or other defect, so as to make it necessary for the company to put upon it other repairs than were done by its employees, then the accident would have been purely an accident, and the defendants would not be responsible for, and the plaintiff would not be entitled to recover, damages in this action.</p> <p>On the other hand, if tire company did not have it examined at proper times and by persons competent to discharge the duty, but neglected it, and if it wras notified that it was defective and did not remedy it after knowledge, and the plaintiff was injured by its neglect alone, then the plaintiff would have a right —the defendants would be responsible for the accident, and [the plaintiff would be entitled to recover in this action such damages as the jury may think under all the evidence in the case he is entitled to recover.]</p> <p>It will be for the jury to determine, first, whether the accident was caused by the negligence of the defendant company by its neglect to properly keep the bridge in repair, have it examined at proper times and by competent persons, and keep it in repair; and if it did so, it has done everything that could be reasonably expected, and it would not be liable for the accident, or for any damages caused by the accident. But if it had knowledge of the defectiveness of any of the timbers, and failed to repair it in time to avoid the accident, and the accident happened through its neglect to do so, then it would be responsible for the accident, and liable for damages in this action for the injuries caused by the accident.</p> <p>On the part of the plaintiff we have been requested to charge the jury:” ... 7. That the defendants cannot escape liability in this case by showing that they intrusted the care and repair of the bridge to persons inexperienced and incompetent to discharge that duty, but must show that such parties were fully qualified and fitted for such work.”</p> <p>That point is correct, and is affirmed as we have already instructed you. The men that were sent by the defendant company to make an examination of the bridge should have been men who were competent to discharge such duty; and the defendant company claims to have sent a carpenter and a blacksmith, and that they were the only men in their employ or that they could employ that would have known what was necessary in the repair of the bridge, if they found anything needed. Third assignment of error.</p> <p>The defendants asked the court to charge, inter alia: “That there is no evidence in the case proving knowledge of the defendants or any of them, of any defect or unsoundness in the bridge; that the only evidence proving such knowledge in their manager is that of David S. Lynch; that he is directly and fully contradicted by both James .Hawthorne and Nathaniel Miles; that before the jury can find such information was given they must believe Lynch and disbelieve Hawthorne and Miles; and unless the giving of such information has been proved to the satisfaction of the jury, they must find for the defendants.” Defused. Sixth assignment of error.</p> <p>The assignments of error also specified the portions of the charge in brackets and the admission in evidence of tables of expectancy of life, compiled for and used by the life insurance companies of which the witness is agent, namely, the Travelers’ and Penn Mutual, as a basis of damages.</p> <p>Verdict and judgment were for the plaintiff for $3,000.</p> <p>“While it is true that the juries are the judges of the credibility of witnesses, they have no unlicensed privilege to accept the uncorroborated assertion of one witness, and disregard, without reason, the opposing and concurring testimony of five equally credible witnesses, with equal opportunities of observation and knowledge. If they do this, however, it is within the power of the court trying the case, and of this court sitting in review, when a proper point raises the question of the sufficiency of the whole testimony, to pass upon that question also, and declare its convictions, notwithstanding the verdict.” Mead v. Conroe, 113 Pa. 220, 8 Atl. 374.</p> <p>The court should not have affirmed plaintiff’s seventh point. It required that to relieve the defendants from liability on the question of care of bridge they were bound to prove that the persons employed by them to keep it in repair “were fully quaDfied and fitted for such work.”</p> <p>Proof of actual competency is not necessary. If the defendants were guilty of no negligence in the selection of persons to look after the bridge, but employed those they believed to be competent, and gave them proper instructions, they discharged their whole duty, notwithstanding such persons were, in point of fact, incompetent. The presumption is that defendants used proper care and diligence in the selection of such persons; and the burden is on the plaintiff to overcome it by proof. Mansfield Coal & C. Co. v. McEnery, 91 Pa, 191, 36 Am. Pep. 662; Ardesco Oil Co. v. Gilson, 63 Pa. 146; Painter v. Pittsburgh, 46 Pa, 213; Keystone Bridge Co. v. Newberry, 96 Pa. 252; and National Tube Works v. Bedell, 96 Pa. 178.</p> <p>The admission of tables of expectancy of life, not supported by authority and made by private insurance companies for use in their business, is error. Armsworth v. Southeastern P. Co. 11 Jur. 758.</p> <p>The charge of the court, that “the plaintiff would be entitled to recover in this action such damages as the jury may think under all the evidence in the case he is entitled to recover,” undoubtedly led to the unreasonable verdict which was rendered. The words were too general, and left the jury to make their verdict on their owm notions of what the plaintiff was entitled to recover. This is error. Pennsylvania P. Co. v. Kelly, 31 Pa. 372; Pennsylvania R. Co. v. Ogier, 35 Pa. 60, 78 Am. Dec. 322; Pennsylvania P. Co. v. Books, 57 Pa. 339, 98 Am. Dec. 229; Philadelphia & P. P. Co. v. Adams, 89 Pa. 31, 33 Am. Pep. 721.</p> <p>The employer must furnish his servants with proper tools, machinery, etc., to operate with, and in good condition. If he does not, and the servant is injured by insufficiency in them, the employer is responsible. Baker v. Allegheny Valley R. Co. 95 Pa. 211, 40 Am. Pep. 634.</p> <p>Where a railroad car is defective, and an injury results from such defect, the burden of disproving negligence is upon the carrier. Empire Transp. Co. v. Wamsutta Oil Pef. & Min. Co. 63 Pa. 14, 3 Am. Pep. 515; Leech v. The Miner, 1 Phila. 144.</p> <p>A corporation which is bound in consideration of its franchise to keep a road or bridge in repair is liable for injury to a person for want of repair, wdiether the defect be patent or latent, uide&s he is in default or the defect was from inevitable accident, tempest or lightning, or the wrongful act of a third person of which they had no notice or knowledge; and this although ordinary care was used in the erection or repair, and the work was done by competent workmen under contract. Pennsylvania & O. Canal Co. v. Graham, 63 Pa. 290, 3 Am. Rep. 549.</p> <p>In estimating damages for injuries to the person, the jury may consider the pain suffered, bodily and mental, the exposure and loss of property they occasion, and loss of time. Pittsburg, A. & M. Pass. R. Co. v. Donahue, 70 Pa. 119.</p> <p>In an action by a passenger for an injury by a collision, he may recover for a loss of anticipated profits in his business, occasioned by his disability to attend to it; but mere speculative damages are not to be considered. Pennsylvania R. Co. v. Dale, 76 Pa. 47.</p> <p>The injuries being of a permanent character it was necessary for the jury to know how long this man would probably live, in ■order to' be able to intelligently award him such damages as he was entitled to. The only evidence which could show this fact was the mortality tables.</p> <p>“The reasons just stated,” in treating of scientific works generally, “however, fail in their force when we approach books of exact science, in which conclusions, from certain and constant data, are reached by processes too intricate to be elucidated by a witness when on examination on a stand. The books containing such processes, if duly sworn to by the person by whom they .are made, are the best evidence that can be produced in that particular line. When the authors of such books cannot be reached, the next best authentication of the books is to show that they have been accepted as authoritative by those dealing in business with the particular subject. Hence the Carlisle and Northampton Tables have been admitted by the courts as showing what is the probable duration of life under particular conditions. In order to verify the book it is proper to prove by a witness qualified to speak to the point, that it is in use in the particular line of business to which the book relates.” Wharton, Ev. § 667.</p> <p>Insurance tables have been long so used by the court of equity in England. Schell v. Plumb, 55 N. Y. 598; Mills v. Gatlin, 22 Vt. 106; Sauter v. New York O. & II. R. R. Oo. 66 N. Y. .50, 23 Am. Rep. 18; Baltimore & O. R. Oo. v. State, 33 Md. 542; Williams’s Case, 3 Bland, Oh. 221; Walters v. Chicago, R. I. & P. R. Co. 41 Iowa, 71; David v. Southwestern R. Co. 41 Ga. 223; Rowley v. London & N. W. R. Co. L. R. 8 Exch. 226; Ordway v. Haynes, 50 N. H. 159.</p>

January Term, 1886, No. 356, E. D., before Mercur, Ch. J., Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Error to the Common Pleas of Orawford Oonnty to review a judgment on a verdict for plaintiffs in an issue in assnmpsit directed by the court on a rule to interplead. The facts appear by the following charge of the court to the jury, by Church, P. J.: The facts of this case, as they have been developed, are not very difficult to comprehend.

July Term, 1886, No. 19, E. D., before Gordon, Paxson, Trunks y, Sterrett, and Green, JJ. Error to Common Pleas No. 4 of Philadelphia County to review a judgment on a verdict for the plaintiff in an action of assumpsit. This case had already been twice before the supreme court. Tagg v. Bowman, 99 Pa. 376; Tagg v. Bowman, 108 Pa. 273, 56 Am. Rep. 204. It was an action of assumpsit by Jonas Bowman against John T. Tagg to the use of Horace E. Weeks.

January Term, 1886, No. 364, E. D., before Mercur, Ch. J., Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Error to tbe Quarter Sessions of Eayette County to review a judgment against tbe defendant on an indictment for perjury. George W. Cover was prosecuted for perjury May 2, 1885.

January Term, 1885, No. 280, E. D., before Mercur, Cb. J., Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. Appeals from decrees of the Orphans’ Court of Berks County distributing the estate of a decedent. Evan Mishler on July 19, 1877, made his promissory note, payable at eight months, to Christian L. Bechtel. Christian L. Bechtel and Elizabeth Mishler indorsed this note, when it was delivered to Martha W. Keim.

<p>In a suit on a promissory note, the affidavit of defense alleged that the ¿note was given to the plaintiff, a married woman, without other eonsidera•tion than upon her promise that she would prevent her husband from further disturbing the defendant, and that she would afterwards return the ■note, and that it would never come against the defendant. The affidavit further alleged that the plaintiff’s husband had accused the defendant of illicit intercourse with the plaintiff, demanded money, and threatened to -destroy his property. Held, sufficient to prevent judgment.</p>

July Term, 1886, No. 113, E. D., before Mercur, Ch. J., Gordon, Paxson, Sterrett, Green, and Clark, JJ. Held: in an opinion delivered by Justice Gordon, that if at the time and place of the injury, the. plaintiff saw the steam issuing from the ground and deliberately walked into it, and was thus precipitated into the excavation, he was, as matter of law, guilty of negligence which contributed to the accident, and that he could not recover.

July Term, 1885, No. 119, E. D., before Mercur, Ch. J., ‘Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Error to the Common Pleas of Eayette County to review a judgment • on a verdict for plaintiff in assumpsit. This suit was brought to recover the value of personal property taken hv Henry Bungard and converted to his use, and which belonged to John Bungard, deceased. John was a son of Henry. Henry had leased a farm and sub-let a part of it to -John.

<p>In an action of trespass for entering premises of plaintiff and destroying herbage, etc., therein growing, Held, that a division fence established by owners of adjoining lands, and acquiesced in by them and their successors for twenty-one years, is conclusive upon them and those holding under them.</p> <p>Held, further, that plaintiff could not recover unless he was in actual possession of the premises at the time of the alleged trespass.</p>

January Term, 1886, No. 349, E. D., before Mercur, Ch. J., Gordon, Trunkey, Sterrett, and Clark, JJ. Error to the Common Pleas of Chester County to review a judgment on a verdict.for the plaintiff in an action of ejectment ■ In the year 1854 Edith Darlington, widow of Thomas Darlington, removed from the farm where she had lived, which had been taken in partition by her son Samuel C., to West Chester.

January Term, 1887, No. 53, E. D., before Mercur, Ch. J., Gordon, Trunkey, Sterrett, and Clark, JJ. Error to the Common Pleas of Chester County to review a judgment on a verdict for the plaintiff in scire facias sur mortgage. The pleas were payment, set-off and coverture. At the trial before Futhey, P. J., the following facts appeared : Mrs. Martha Y. Broomell obtained the title to the property in question on January 2, 1866.

<p>January Term, 1886, Nos. 130, 131, E. D., before Mercur, Oh. J., Gordon, Trunkey, Sterrett, and Green, JJ. Writs of error to the Common Pleas of Delaware County to review judgments on verdicts for the plaintiffs in actions of ejectment.</p> <p>At the trials the following facts appeared:</p> <p>Michael McCallion bought of John Larkin, Jr., in 1855, a lot of ground on Quarry or Walnut street, Chester, for $215. In 1859 he bought of Daniel B. Thompson an adjoining lot for $150. Soon after his purchase he built a dwelling house on the ground, and resided in it with his wife and children, John, Michael, and Ann, until his death in 1870 or 1871. Margaret, the fourth child, married Maurice Kearney, and moved to Connecticut with her husband, where sbe remained some years.</p> <p>In 1873 Michael, tbe younger, exchanged the property on Walnut street with Jonathan Pennell, for four houses and a lot of ground on Potter street, Chester, some six squares off. The consideration of the Walnut street property was $2,200, that of the Potter street property, $5,800. To make up the difference, Michael, the younger, executed a mortgage to Anna Pennell, the wife of Jonathan Pennell, for $2,000, and a mortgage-for $1,600, to a building association, making $3,600 the difference between the two properties.</p> <p>Michael McCallion, tire younger, being the only one then of the name, executed the deed for the Walnut street property, took the title for the Potter street property, executed the mortgages, upon it for the boot money, personating his father, and passing off the Walnut street property as his own; the identity of names, deceiving the purchaser and his conveyancer.</p> <p>This exchange of properties was made without the knowledge of his coheirs; and when a few days afterwards he called upon them to give up the homestead and move to the new property, they complained to him of what he had done, and he replied that he did it for the best, and that it would be all right. John, Michael, and Ann took possession of the Potter street property, and have remained in possession mainly ever since.</p> <p>In 1880 Michael, who had by that time built two more houses upon .the Potter street propei’ty, occupying the vacant ground between the original four houses and Seventh street, and, having-moved into one of them with his brother John and his sister Ann, sold those two new houses to Maurice Kearney, the family, John, Michael, and Ann, still occupying one of them. The debts secured by the mortgages executed by Michael upon the Potter street property for the boot money, were never paid off.</p> <p>After the death of Michael McCallion, Jr., John and Ann brought these separate actions against his executor and the tenants in possession of the Potter street houses, claiming to recover each a % interest subject to the mortgages.</p> <p>Under objection the testimony of Maurice Kearney was admitted in both suits; the testimony of Ann was admitted in the suit by John, and the testimony of John was admitted in the suit by Ann.</p> <p>In the suit by Ann the court, Clayton, P. J., charged the jury substantially as follows, after stating the admitted facts:</p> <p>It appears that Michael McCallion, Jr., undertook to make a deed of the property that had descended to him and his three-coheirs jointly; and in that deed it is alleged that he assumed to be the entire owner, and in so doing perpetrated a fraud upon the pxxrchaser by assuming to convey more than he really owned. Tf the case went no further than that, this plaintiff would have-. no right to complain; for no fraud would be perpetrated upon her to her injury. The man had a right to sell one fourth; and if he sold the whole without her consent, it would be evident that she could not be injured, for the only person suffering by the fraud would be the purchaser. There could be no fraud upon the plaintiff, unless she accepted the sale and her brother refused to give her her share of the consideration.</p> <p>In the evidence there appears some acquiescence upon her part, and acts upon the part of the coheirs, which seemed to ratify this sale; so much so as perhaps to estop her from ever denying that her brother Michael had a right to sell the lot. After he undertook to sell the whole estate (this woman and her coheirs being at that time in possession) the law would have protected their title. The duty of the purchaser was to go to the persons in possession of the land sold and inquire what title ■they had; the deed which Michael made could not affect the persons in possession in any way, except as to the</p> <p>[But if, after he had made the deed, they chose to go out of possession, without giving notice of their title to the purchaser, and move into another house (being the property which had been the consideration for the sale), then I am inclined to think that they would be estopped from ever setting up a want of title in their brother; and after he informed them of what he had done, if they did any act that would amount to an estoppel in law; if they acquiesced in the sale and took possession of the property which had been the consideration for the exchange, then he would be bound to hold that property for himself and for them in the same interests as they held in the one he sold. In such a case the law makes him a trustee for himself and for them. If they went into possession jointly, and the others were not turned out by some act hostile to them, then the five years’ limitation does not run; it has nothing to do with the case. When there is a joint possession it requires more than a mere holding by one to oust his joint tenant; something must have been done by Michael to warn his cotenants that he did not intend to carry out the trust. If all he did was to remain in possession, then I charge you that his possession was their possession, and that in such a case the statute of limitations cannot run.] . .</p> <p>The first vital point in the case is, Has the plaintiff done any act by which she is estopped from setting up her title to the property her brother sold? If you find that she has not, then I charge you that she is entitled to recover, because she has never parted with her title to the land her brother sold; and it would be unjust for you, simply because Michael, the younger, committed a fraud upon the purchaser, to hold that he has destroyed the right of his coheirs. She is no more bound by that act than you would be, if one of the counsel in this case were to make a deed of your farm to a stranger; but when the stranger came with his deed bearing your name upon it, which you did not put there, if you should submit to his title, go out and give the possession to him, then you might be so far estopped from setting up title against him, that you might have recourse against the man committing the fraud.</p> <p>[The first point, therefore, is this: Idas this woman done any act by which she is estopped from claiming her °f the land derived from her father by virtue of the statutes of descent, and which her brother undertook to sell ? If you find that she has not, you need go no further; if you find that she has (and giving up possession would be such an estoppel in law), then proceed to inquire whether there was any trust or confidence between her and her brother,] or knowledge conveyed to her by her brother, or from her to him; whether they had any understanding between them in regard to this matter; and if you find that there was, or that there was an agreement founded upon a money consideration, then this woman has no claim upon this land. Apply that to the evidence.</p> <p>One of the witnesses says that her claim was for $o50. It may be that this sum is a mere conclusion of his, as to the value of her interests; and yet it may be that she and the dead man agreed upon that amount as the consideration for the sale. We do not know. Michael is now dead; if he committed this fraud, she has no right to claim the benefit of it, merely because his mouth is shut; nor can any other persons interested with him speak for him. This testimony is the only piece of evidence I remember, as to the money consideration that was to be given this woman for the sale and for the fraud perpetrated upon her. If, in other words, when she discovered that Michael had assumed to sell the whole property, they agreed that a certain amount of money would compensate her for the land, then she has lost her claim upon the land; that is, if you find that the woman has brought this action for that money. One of the witnesses has told you that she claims money; whether he calculated the value of what her share would be, or what was her claim, would be hard to say. He certainly did say that she was to have $550. It is for you to say what he meant. I am not going to construe the testimony. After dinner the man again took the stand and attempted to explain. If he has satisfied you, I have nothing more to say.</p> <p>The next point in the case will be whether the agreement was made (at the time that Michael sold the land) that it was to be for the benefit of himself and his coheirs? If there was such an agreement, it ought to be in writing; if it was not in ■writing, then five years’ possession would make the title good if held by him; but if he held for himself and his father’s heirs, then they were all in possession at one time, and the statute could not run against such a trust. The sister, when her attention was called to it, said'that he assured her that “all would be right, and that they should not suffer, that everything was all right.” How he was going to make it all right we cannot tell. "Whether he intended to hold it for their use, or whether he intended to pay them the full value for it, we do not know.</p> <p>The first seems to me the most probable; he did not pay them for it, and he did hold the land allowing them to remain on it; but it is for you to say. Let me repeat, as this is very important: in the first place, he may have made an agreement with them; in the second place there may have been a trust created by the unlawful act or fraud of Michael; in either case if there was a general possession, then there has been no ouster of the joint heirs, and the statute does not run and the plaintiff may recover. Now I believe that is about all I can say to you. I will answer the points that have been submitted tó me by the counsel. Keeping these points in the case before your minds you will agree upon your verdict.</p> <p>Should you find for the plaintiff, I wish your verdict to be a conditional one, upon her filing or delivering to the persons now in possession of the title to the property that descended from her father, conveying all her interest in that property, and vesting it in the persons now holding the legal title, so that she shall be estopped if she recovers in this action from recovering again in another against the persons to Avhom her brother Avrongfully sold the estate. Should you find for the plaintiff you need only say that she is entitled to V4. of the property, conditional upon her giving a release of the deed made to Mr. Pennell.</p> <p>The plaintiff submitted the following points:</p> <p>1. Michael MeCallion, the younger, having exchanged the property of his father’s heirs, for the property in suit, in fraud of those heirs, he became thereby a trustee ex maleficio for the lands so exchanged, and the plaintiff could either claim % of the property late of her father, or % of the property for which the same was exchanged, at her election.</p> <p>Ans. This point asks me to say, in effect, that Michael Mc-Oallion did make the deed in fraud of his brothers and sisters, and of the plaintiff. I have said to you that he made it in fraud of the purchaser, and that unless she recognized the sale in some way, and by which it would appear that she was bound by the sale, then it would apply to her. The fraud would then be upon her, unless she was compensated in some way, and there is no evidence that she has been. Virtually I affirm the point.</p> <p>2. She cannot be called upon to abandon her claim to % of the land late of her father, as long as the representatives of Michael MeCallion object to her recovering % of the land in suit.</p> <p>Ans. This difficulty will be cured by the conditional verdict I have asked you to give, should you find it in her favor.</p> <p>3. The most the court should require in that direction is that the verdict should be in her favor for % of the land in suit, upon condition that she release her claim to % of the land, late of her father.</p> <p>Ans. That is virtually what I have said.</p> <p>4. If the jury believe that Michael MeCallion, the elder, died, seised of the lands on Quarry street, leaving four children, of whom the plaintiff is one, and that Michael MeCallion, the younger, in fraud of the rights of the plaintiff, exchanged the lands late of the father for the lands on Potter street, now in .suit, and that the plaintiff on being informed of the exchange gave up possession of the property late of her father to the person to whom her brother hao. sold, and entered into possession of the property on Potter street, now in suit, and that the said Michael MeCallion, the younger, repeatedly and up to the time of his death, promised to make the matter right with his brothers and sisters; this is evidence to the jury that the plaintiff relinquished her YÍ interest in the property of her father, and accepted in lieu thereof ^4 of the property so exchanged for the property of her father.</p> <p>Ans. Ifc is evidence that may estop her from recovering % ■of the estate of her father as against the purchaser from her brother.</p> <p>5. The act of 1856, limiting the right of action, does not preclude the plaintiff from a recovery in this action.</p> <p>Ans. It precludes her unless she has been in possession of the land she now claims under the trust, or unless she has been in possession jointly with the others; and if, as I have said, she has been in possession jointly with the others, or with her brothers, rrnless they have estopped her by some adverse notice, the statute of limitations does not run.</p> <p>The defendant submitted the following points, inter alia:</p> <p>1. If the jury believe that the property of Michael McCallion, Sr., was conveyed by Michael McCallion, Jr., to Jonathan Pennell, without the consent of the plaintiff, then her interest in the property of her father has never been devested and she ■cannot recover in this suit.</p> <p>Ans. I affirm that point, unless, when she discovered that it was sold, she did some act to estop her from claiming against the purchaser.</p> <p>3. If the jury believe that the said property was so conveyed with the consent of the plaintiff, and that it was not a loan by her to him, but that she was to acquire the same interest in the substituted property, then this was an express trust, and not being in writing it is contrary to the statute of frauds and perjuries, and she cannot recover in this action.</p> <p>Ans. I do not think that there is any evidence of an express .trust made at the time the deed was executed in the case. -At least, I do not recollect any. If there was one, of course the •■only proof under the statute must be in writing.</p> <p>4. Under the circumstances of this ease there can be no recovery based upon a resulting timst or a constructive trust; and unless the plaintiff proves to the satisfaction of the jury an express trust in writing she cannot recover.</p> <p>Ans. I decline to so charge you.</p> <p>5. If the jury believe that the circumstances of the trade of property were known to the plaintiff more than five years prior to the commencement of the suit, and that she has not had possession of any part of the property in dispute, within five years prior to the commencement of this suit, she cannot recover.</p> <p>Ans. This point I affirm, mless you find a joint possession, and that one of the persons for whom the trust inured held the possession for all.</p> <p>The charge and the answers to points in the suit by John were to the same effect.</p> <p>The verdict of the jury in each case was that they found for the plaintiff the one undivided fourth part of the lands described in the writ, on condition that the plaintiff within fifteen days from date should execute and file in court for delivery to the person or persons holding the legal title a deed of release or confirmation for all the plaintiff’s right, title, and interest in the Walnut street property. Judgment was entered on the verdict in favor of the plaintiffs and against defendants.</p> <p>The assignments of error specified the admission of the testimony of Kearney and of John and Ann MeOallion, the portions of the charge included in brackets, and the answers to the plaintiff’s and defendant’s points.</p> <p>A resulting trust only exists by virtue of the payment of the purchase money, at the time when the title was acquired. Barnet v. Dougherty, 32 Pa. 371; Longdon v. Clouse, 1 Sad. Rep. 178.</p> <p>It is essential to a resulting trust that the money should be paid at the time of the purchase. A subsequent payment cannot raise a trust. Bispham, Eq. p. 122.</p> <p>In no way can this be considered a trust ex maleficio, for the reason above stated: that the exchange of properties must have been done with the consent of the plaintiff; otherwise, her title to the Walnut street property yet remains and there is, therefore, no trust at all in the Potter street property; and, as already stated, an acquiescence subsequent to the acquisition of title is essentially contrary to the nature of a resulting trust.</p> <p>The plaintiff is barred by the act of April 29, 1856, § 6 (P. L. p. 532), because it does not appear that she was in possession of any part of the property in dispute within five years prior to the commencement of the suit.</p> <p>There must be actual possession of a cestui que trust within five years before suit commences, in execution of the trust, to toll the statute. Best v. Campbell, 62 Pa. 476; Douglass v. Lucas, 63 Pa. 9; McNineh v. Trego, 73 Pa. 52; Clark v. Trindlc, 52 Pa.. 492; Williard v. Williard, 56 Pa. 126.</p> <p>The action being against an executor, and the bent of the plaintiff’s case being to establish a trust, in which Ann McCallion is a cotenant, and Maurice J. Kearney, the husband of Margaret Kearney, is another cotenaut, neither of these persons was a competent witness. Martin v. M’Cord, 5 Watts, 493, 30 Am. Dee. 342;, Patterson v. Panning, 10 Watts, 135, 36 Am. Dec. 154; Stoll w. Weidman, 3 W. N. C. 205; Diehl v. Emig,. 65 Pa. 320; Karns v. Tanner,.66 Pa. 297; McEerren v. Mont Alto Iron Co. 76 Pa. 181; Gardner v. McLallen, 79 Pa. 398; Taylor y. Kelly, 80 Pa. 95; Standbridge v. Catanach, 83 Pa. 368; Arthurs y. King, 84 Pa. 525; Hess v. Gourley, 89 Pa. 195.</p> <p>Moreover, the verdict was wrong in that it gives to the plaintiff % part of r. property worth $5,800 in exchange for % of a property worth only $2,200.</p> <p>A resulting trust could only be asserted to the extent of the amount of the purchase money which belonged to the plaintiff. Sheetz v. Marks, 2 Pearson- (Pa.) 302; Wallace v. Duffield, 2 Serg. & E. 525, 7 Am. Dec. 660; Williard v. Williard, 56 Pa. 124.</p> <p>A tenant in common is a competent witness for his cotenant, in an action of ejectment brought by the latter. Bennett v. Hethington, 16 Serg. & E. 193; Ott v. Houghton, 30 Pa. 453 ; Gillespie v. Miller, 37 Pa. 250; Berree v. Thompson, 52 Pa. 354.</p> <p>This was a resulting trust. The purchase money w-as paid at the time the title was acquired. The purchase money was the homestead, and the conveyances were' simultaneous. It makes no difference that the purchase was made with land instead of actual money, or that it was made without the knowledge of the defendant in error.</p> <p>No statute of limitations could run against the plaintiff as long as the joint possession continues; neither the five years’ term of the act of 1856, nor the longer term of the act of 1785.</p>

July Term, 1886, No. 215, E. D., before Mercur, Ch. J., Gordon, Trunkey, Sterrett, and Clark, JJ. Error to the Common Pleas of Somerset County to review a judgment on a verdict for the plaintiff in an action of trespass. At the trial, before Babb, P. J., the following facts appeared: The plaintiff, Charles E. Weigle, son of Josiah J. Weigle, attained majority January 18, 1884. On the same day he agreed to remain on the farm and work for his father for one year for $100.

January Term, 1886, No. 139, E. D., before Mercur, Ch. J., Gordon, Trunkey, Sterrett, and- Green, JJ. Error to the Common Pleas of Chester County to review a judgment for the plaintiff for want of a sufficient affidavit of defsnse in an action of debt.

January Term, 1887, No. 171, E. D., before Mercur, Ch. J., Gordon, Trunkey, Sterrett, and Clark, JJ. Error to the Common Pleas of Somerset County to review a judgment on a verdict for the plaintiff in an action of assumpsit. At the trial before Baer, P. J., the following facts appeared: On November 29, 18S4, Geo. BE.

January Term, 1886, No. 452, E. D. Error to the Common Pleas of Centre County to review a judgment on a verdict for the defendant in an action of trespass on the case for negligence. The facts as they appeared at the trial before Eurst, P. J., are stated in his charge to the jury which was as follows: This is an action on the case brought by Dr. G-.

<p>January Term, 1887, No. 38, E. D., before Merque, Oh. J., ■Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Error to Common Pleas No. 1 of Philadelphia County to review .a judgment on a verdict for the defendants in an action of assumpsit. .</p> <p>At the trial before Biddle, J., the following facts appeared:</p> <p>On or about May 1, 1879, an insurance broker brought to the agent of-plaintiff two premium notes for $300 and $160 respectively, and two applications for policies of insurance. The premium notes and applications had the signatures “Papst & Lougendorfer” properly attached. The plaintiff’s agent thereupon delivered two policies to the insurance broker, in accordance with the applications and premium notes. The one policy was a transfer of an old one dated July 15, 1878, for five years (first issued to Papst & Kraus), to Papst & Lougendorfer. The other was a new policy issued to defendants, for five years from May 1, 1879.</p> <p>Dn May 1, 1879, an assessment known as No. 37, of 10 per cent, was levied upon the one note for $300 (upon which the old policy of Papst & Kraus was transferred to Papst & Lougendorfer) ; and this assessment was paid August 9, 1879.</p> <p>On February 25, 1880, an assessment known as No. 38, of 6 per cent, was levied upon each of these notes, notice given the defendants, and they were also paid.</p> <p>On April 15, 1880, an assessment known as No. 39, of 12% per cent, was levied by the board of directors of plaintiff upon each of these notes; and on May 14, 1880, another assessment known as No. 40, of the same amount, was levied in the same way on each of the notes, and notice of these assessments and a request for their payment were given the defendants.</p> <p>On October 8, 1881, the receiver, by a decree of the court of common pleas of Lycoming county, levied another assessment, known as the receiver’s assessment, of 20 per cent, upon each of these notes, and notice was again given the defendants. Upon defendant’s failure to pay the last three assessments, this suit was brought upon the notes.</p> <p>The plaintiff offered in evidence the act of incorporation of the company and its by-laws, and properly proved the levying of the assessments. lie then proved the giving of notice of the assessments in suit, and the payment of two former assessments upon the note of $300 and of one former assessment upon the note of $160. He then, having previously given the proper notice, called on the defendants to produce their policies; and on their failure to do so offered in evidence a blank form of policy, such as was filled up and delivered to the defendants, which, after objection, was admitted in evidence. He then offered in evidence the two notes and applications, which were also admitted after objection. The plaintiff then closed.</p> <p>The defendants opened their case by offering in evidence the deposition of Papst, one of the defendants, in which he denied ever signing the notes or applications, or authorizing anyone else to,do so. Lougendorfer, the other defendant, then testified that he bought out Kraus, the former partner, on December 12, 1878.</p> <p>A few' months afterwards, a gentleman came and induced him to have the old policy transferred to the new firm, and to take out an additional policy for $800 for the new firm. The old policy was transferred to the new firm, and a new policy was issued to the new firm. He said that nothing was said about, premium notes, that he never knew there was anything of that kind, and that he would have refused to sign any notes if they had been produced. He denied that he signed the notes, or that He had ever authorized anyone else to do so. 'When he paid the assessment of $30, he did not know it was on notes. He admitted that the signature at the top of the application was written by him, but denied that the signature at the bottom of it was his. He signed the application at the top because the insurance broker told him to, and for the purpose of getting the policies. He never read the policies.</p> <p>Defendants then closed.</p> <p>The plaintiff submitted the following point:</p> <p>“If the jury believe that the defendants accepted policies of insurance containing the following provisions, as in the form offered in evidence, viz.: ‘And the said assured have become members of the said company by depositing, in addition to the cash premium paid., two premium notes for the sums of $300 and $160, subject to assessment at such times as the board of directors may, by the act of incorporation, require,’ they are now estopped from denying the execution of the said notes.”</p> <p>The court answered the point thus:</p> <p>“It is the duty of the company to demand or obtain the notes, and if it chooses to waive them and issue the policy without obtaining the notes, it is at its own risk; and it cannot recover in this suit unless the jury are satisfied that the notes wore executed by the defendants.”</p> <p>Verdict and judgment for defendants. This answer was assigned as error.</p> <p>Under the circumstances it is very clear that the broker was the agent of the defendants to procure the policies, and they are bound by his acts and conduct in accomplishing that end. Pottsville Hut. P. Ins. Co. v. Hinnequa Springs Improv. Co. 100 Pa. 137; Standard Oil Co. v. Triumph Ins. Co. 64 N. Y. 85.</p> <p>■ Recitals in insurance policies are as binding upon the insured as upon the insurer. Swan v. Watertown F. Ins. Co. 96 Pa. 37; Susquehanna Hut. F. Ins. Co. v. Swank, 102 Pa. 17.</p> <p>■ Where one accepts a policy which contains a clause declaring that the policy is made and accepted upon and in reference to the application, he is thereby concluded from denying that the application is his, and cannot set. up that it was made by an agent employed by him to procure insurance upon his property, but without authority to bind him by representations in the application. Draper v. Charter Oak F. Ins. Co. 2 Allen, 569.</p> <p>In all eases where an act is done or a statement made by a party, the truth or efficacy of which it would be a fraud on his part to controvert or impair, the character of an estoppel shall be given to what would otherwise be mere matter of evidence. Com. v. Holtz, 10 Pa. 527, 51 Am. Dec. 499.</p> <p>The suit is upon the notes. The making and delivery of the notes by the defendants became the issue which the jury were sworn to try. Any acceptance, therefore, by the defendants, of a policy of insurance, even if true as alleged, was but a matter of evidence to be submitted to the jury along with the other evidence -in the cause. Com. v. Holtz, 10 Pa. 527, 51 Am. Dec. 499; Davidson v. Barclay, 63 Pa. 407.</p> <p>In an action upon a promissory note it is not competent to show that the defendant was estopped from setting up the defense of forgery to the note in suit by proving that he had paid other forged notes or recognized them to be valid. Cohen v. Teller, 93 Pa. 123.</p>

July Term, 1886, No. 136. Error'to Common Pleas No. 3 of Philadelphia County to review a judgment on 'a verdict for the plaintiffs in an action of trespass on the case for slander. At the trial before Einletteb, J., it appeared that the plaintiffs and defendants were neighbors and their back yards adjoined each other.

June Term, 1886, No. 176, E. D., before Mercur, Oh. J.,Gordon, Paxson, Trunkey, and Sterrett, JJ. Error to Common Pleas No. 2 of Philadelphia County to review a judgment on a verdict for defendant in replevin. The facts are stated in the following charge to the jury, by the court below, Eell, J.: This is an action of replevin for a horse.

July Term, 1886, No. 95, E. D. Error to the Common Pleas of Centre County to review a judgment on a verdict for the plaintiffs in an action of covenant The facts as they appeared at the trial before Furst, P. J., were thus stated in Ms charge to tbe jury: This is an action of covenant brought by B. F. Leathers &. Son against the Lebanon 'Mutual Insurance Company, located at.

July Term, 1886, No. 202, E. D., before DJercur, Ch. J., Gordon, Paxson, Trunkey, Sterrbtt, and Green, JJ. Error to Common Pleas No. 3 of Philadelphia County to review a judgment for the defendant on a point reserved in an action of assumpsit. Reported below as Osner v. Yollrath, 2 Pa. Co. Ct. 181. At the trial the following facts appeared: This was an action to recover the price of leather sold and delivered.

<p>January Term, 1887, No. 212, E. D.,'before Mercur, Ch. J., ■Gordon, Paxson, Sterrett, Green, and Clark, JJ. Error to tbe Common Pleas of Eayette County to review a judgment affirming, on certiorari, tbe judgment of a justice of tbe peace in favor of plaintiff.</p> <p>Tbis was a landlord and tenant case, begun by a landlord avowedly under § 12 of tbe act of March 21, 1772, carried on by a landlord and a justice of tbe peace, under the acts of June 16, 1836, §§ 105-107, et seq.; May 24, 1878 (P. L. 134, .Purdon’s Digest, 768, pi. 143, et, seq.), providing proceedings for a purchaser at sheriff’s sale to obtain possession of lands boiigh't under execution, and consummated by tbe justice under the act ■of assembly of December 14, 1863 (P. L. 1125), Purdon’s Digest, 1018, pi. 20), which regulates tbe mode in which a landlord may proceed before a single justice, without a jury, to recover possession at the expiration of the tenant’s term.</p> <p>Tbe complaint of Lucy L. Wetherell, presented August 27, 1886, set forth in substance that- she was the owner of a certain Louse, with the appurtenances, situated on Pittsburgh street in the borough of Oonnellsville, and was in peaceable possession thereof, when she demised the said premises to H. C. Homer for the term of one year, at the rent of $96; that the term was fully ended; that the complainant was desirous to repossess the premises and on January 1, 1886, notified the said Horner to leave the same; that he refused to comply and that three months had elapsed since the service of the notice. The complaint prayed that such proceedings might be taken as were directed by the act of assembly, in such cases made and provided.</p> <p>Thereupon, the' justice, Eichard Campbell, Esq., issued a summons which recited the complaint and concluded as follows:</p> <p>“Therefore we command you that you summon six substantial freeholders of your bailiwick, so that they be and appear before our said justice, at his office, on the 31st day of August, a. i>. 1886, at 2 o’clock in the afternoon of that day, and that you also’ summon the said H. C. Horner, so that he may be and appear’ before our said justice and the other said freeholders at the day and place last aforesaid, to show cause, if ¿ny he has, why restitution of the possession of the said demised premises should not be forthwith made to the said Lucy L. Wetherell, according to the form and effect of the act of the general assembly, in such cases made and provided; and this you shall in nowise omit, and have you then and there this writ.</p> <p>Witness the said E. Campbell, at Connellsville aforesaid, the 28th day of August, a. d. 1886.”</p> <p>The docket entries of the justice recited the complaint and' continued as follows:</p> <p>“Same day summons issued to sheriff to appear the 31st day of August, at 2 o’clock p. m., August 31, parties appeared, and now upon motion of plaintiff’s counsel, the jury summoned by the sheriff is discharged, with costs for their attendance and sheriffs costs for same placed upon the plaintiff. The plaintiff pays the costs of their attendance and sheriff’s costs for summoning them; and as it appears by the provisions of the act of 1863, relating to landlord and tenant, that a jury is not required, and the jury is therefore discharged, the plaintiff directed to pay the costs of their attendance; and after hearing the proofs and allegations of the parties it appears in the evidence that the defendant, H. C. Horner, is a tenant and lessee under plaintiff, .and was duly and properly notified by written notice dated the-31st day of December, 1885, being three months before expirations of lease, to vacate, relinquish, give up, and vacate, surrender possession of the premises to the plaintiff as-on the rent on the first day of April, 1886; and it further appearing that said defendant still continues to occupy said tenement and premises against the will and without the consent of the plaintiff after expiration of lease, judgment is reserved until September-2, 1886. And now, September 2, 1886, judgment is publicly entered in favor of plaintiff and against the defendant in the following manner, to wit: that the said H. C. Horner, the defendant, shall forthwith give up and surrender possession of the premises described in the writ, to the plaintiff and lessor without hindrance or delay; that judgment is also entered against defendant in the sum of $8, for detention and occupancy, as damages done to plaintiff, and judgment also against the defendant for costs of this proceedings. Judgment is entered accordingly this second day of September, 1885. Now, to wit: Writ of possession to P. C. Brooks, constable, to execute-forthwith, same day returned peaceable possession of premises, to plaintiff. Defendant claims benefit of exemption.”</p> <p>The defendant thereupon took a writ of certiorari and filed the following exceptions:</p> <p>“1. The writ does not state where the defendant is to appear.</p> <p>“2. The writ shows the organization of a freeholders’ court with six jurors; but the finding shows no action by the jurors.</p> <p>“3. The sheriff’s return on the writ shows that he summoned six jurors; yet the said jurors have made no finding.</p> <p>“4. The justice had no authority to dismiss the jury of freeholders summoned and present, and to proceed to hear the case.</p> <p>“5. The writ is attested August- 28, 1886, returnable August. 31, 1886, giving three days’ notice, which is sufficient under the-act of 1772, but under no other act of assembly.</p> <p>“6. No service of any writ or notice under the act of 1863 appears in the record.</p> <p>“7. The justice does not- find the allegations of the complaint, to be true, nor does he find such facts as support the complaint.</p> <p>“8. The record nowhere shows what was- the year of the tenancy ; it is therefore impossible to decide that notice- was given before the end of the term.”</p> <p>In his deposition, Hamilton C. Homer testified: “There was a paper served on me by the sheriff to appear before Justice Campbell. Attorney for defendant in error objects to witness’s testimony, on the grounds that the record itself shows an appearance. It was a paper to meet a jury of six men at 'Squire Campbbli/s in Connellsville. There was more than one served on ma The first one contained an error of date. I called the sheriff’s attention to it and then he rewrote the paper and served it the second time with the date corrected. There was no service on me for anything but the jury proceedings. I appeared then to have the matters between myself and Mrs. Wether ell adjusted by that jury. When we appeared at the office, the justice announced that he would change the manner of proceedings and would try the case, if I remember correctly, under the act of 1863, and that the jury would be discharged at the proper cost of the plaintiff. I went out. The objection that was made, by either me or my attorney, was that we had not been subpoenaed there for a trial of that kind, and that we did not consider we had any business there. I did not remain for the taking of any testimony or for the hearing of the case.”</p> <p>The court of common pleas dismissed the exceptions and affirmed the judgment; and this was assigned as error.</p> <p>Unless process be served before the return day, proceedings before a justice of the peace are coram non judice. Fisher v. Longnecker, 8 Pa. 410.</p> <p>If a service was necessary under the act of 1863, to give the justice jurisdiction of the case, then he had no jurisdiction, because no service is pretended and nothing equivalent to a service appears anywhere in the case.</p> <p>. That want of jurisdiction can be shown by parol is a matter of every day practice, essential to the due administration of justice, to prevent frauds and maintain a subordinate tribunal within its proper sphere of action, and supported by authority. Oamp v. Wood, 10 Watts, 123; Burginhofen v. Martin, 3 Yeates, 479; Ohio & P. B. Co. v. Brittian, 1 Pittsb. 271.</p> <p>Justices of the peace, in landlord and tenant cases, have great and extensive powers. The act giving them jurisdiction evidently intending to give the landlord festinum remedium, the rule is that a certiorari is no supersedeas. But such proceedings will always be examined narrowly; and to effectuate this purpose affidavits are admissible. Stewart v. Martin, 1 Yeates, 49; ■'Sharpe v. Thatcher, 2 Dali. 77, 1 L. ed. 296, and Yansciver v. Bolton, 2 Dali. 115, 1 L. ed. 312; Buckmyer v. Dubs, 5 Binn. :28.</p> <p>So where the want of jurisdiction can be established in no other way, as, where one justice undertakes to re-examine what has already been determined by another, parol evidence can be produced. Dumber v. Jones, 1 Ashm. (Pa.) 215.</p> <p>Givens v. Miller, 62 Pa. 133, was a case of proceedings, under the act of December 14, 1863, to recover certain leased premises in possession of the defendant They were begun by the justice, by an ordinary summons in debt not exceeding $100, without reference to any complaint whatever made to recover leased premises, and ended in a judgment for plaintiffs for $20 and the immediate possession of the property. The defendant, although he came to the office at the time for hearing, would not remain to make-any defense or hear the testimony. The judgment was reversed.</p> <p>The jurisdiction under the landlord and tenant act is special, and the record of the magistrate must contain every essential to support his judgment. Skilton v. Mason, 23 Phila. Leg. Int. 126; Bradfield v. Rehm, 6 Phila. 135; McGinnis v. Yernon, 67 Pa. 149; Graver v. Pehr, 3 Sad. Rep. 203.</p> <p>Courts will always notice substantial and fatal errors in the proceedings, although counsel have omitted to make it a special exception. Meese v. Levis, 13 Pa. 386; Com. v. Cane, 2 Pars. Sel. Eq. Cas. 265; Paine v. Godshall, 29 Phila. Leg. Int. 12; McCullough’s Appeal, 12 Pa. 197.</p> <p>Under the act of 1863 (Purdon’s Digest, 1018, pi. 20), the defendant is entitled to the same notice as in other civil actions, which would be “not more than eight nor less than five days after the date of the summons.”</p> <p>Act of March 20, 1810, §§ 2-5_; Smith’s Laws, 162; Purdon’s Digest, 981, pi. 43.</p> <p>The act of December 14, 1863, was designed to give landlords a more convenient remedy to dispossess tenants than they had under the act of 1772. As that was more expeditious and convenient than the common-law remedies of landlords, -the same liberal interpretation and administration are due to the latter statute that have always been etxended to the former. Snyder v. Caxfrey, 54 Pa. 90.</p> <p>Proceedings under such statutes, although summary, are not to be criticised with the extreme strictness that is applied to summary convictions under penal statutes, for the relation of landlord and tenant rests in contract, and involves mere rights of property; and the remedies are purely civil, and not in the slightest degree penal.</p> <p>It is not necessary for the record to disclose the statute under which the proceeding is had. Sterling v. Richardson, 24 Phila. Leg. Int. 140.</p> <p>The alderman’s judgment in a landlord and tenant case need not recite the date of the lease, the expiration of the term, or the date of the notice. Kraft v. Wolf, 6 Phila. 310.</p>

January Term, 1886, No. 201, E. D., before Mercub, Oh. J., Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. Error to the Common Pleas of Lehigh County to review judgments on verdicts for the defendants in actions of scire facias sur municipal liens. These cases between the same plaintiff and defendants were tried together.

January Term, 1886, No. 298, E. D. Error to the Common* Pleas of Lycoming County to review a judgment of compulsory nonsuit in an action of trespass on the case.

January Term, 1886, Nos. 229, 230, and 231, E. D. Error brought by plaintiffs to the Common Pleas of Lycoming County to review judgments on verdicts for the plaintiffs for less amounts thair claimed in actions of debt. The following are the facts as stated by the plaintiffs in error: In August, 1883, the plaintiffs, B. W. Payne & Sons, were manufacturing steam engines at Elmira, New York.

<p>January Term, 1887, No. 79, E. D., before Merour, Oh. J., Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Appeal from a decree of Common Pleas No. 8 of Philadelphia County dismissing a bill in equity.</p> <p>Robert T. Corson, Esq., to whom the case was referred as master, reported as follows:</p> <p>Charles H. Eisher and wife, by indenture dated February 17, 1846, and duly recorded, etc., granted and conveyed to Henry Knight and Thomas Armington in fee a certain lot of ground situated on the west side of Carlisle street, 181 feet north of Brown street, in the city of Philadelphia, containing in front on said Carlisle street 15 feet, and extending in depth 75 feet, 8 inches, to Burns street, reserving thereout a yearly ground rent of $42.</p> <p>'Henry Knight and Thomas Armington, by indenture dated July 14, 1846, and duly recorded, granted and conveyed the same lot to John E. Armington, subject to the ground rent.</p> <p>On April 2,1847, a judgment against John F. Armington for $500 was entered of record in favor of John Malin.</p> <p>On December 17, 1851, John E. Armington and Catharine, his wife, conveyed the said premises to Josiah Hibberd, consideration $1,000, subject to the ground rent.</p> <p>On December 20, 1851, Josiah Hibberd conveyed the said premises to Catharine Armington, wife of the said John E. Armington, consideration $1,000, subject to the ground rent.</p> <p>These last two deeds were recorded on January 22, 1852.</p> <p>On April 1, 1852, the judgment of April 2, 1847, was revived by an agreement filed of record and signed by the said John E. Armington, but without notice to Catharine Armington; and a fieri facias was issued thereon, under which the property in question was returned “levied and condemned.”</p> <p>A venditioni exponas was subsequently issued, and said premises sold to John Wurfflein, one of the defendants in the bill, for. $100, to whom George Magee, Esq., sheriff, on December 30, 1856, made a deed in fee for the same, subject to the ground rent.</p> <p>Wurfflein took possession of the premises, collected the rents, paid accruing ground rent until April 12, 1867, when he purchased the ground rent from Bebecca Snowden, in whom the same was then vested in fee, and a deed to him was subsequently made for the same.</p> <p>Wurfflein continued in possession until May 1, 1869, when he conveyed said premises to John Jacob Ehxoell by the name of Jacob Enoell, for the consideration of $3,600. This deed recites that by the deed from Snowden to Wurfflein, the ground rent “merged and became forever extinguished.”</p> <p>TCnoell took possession of the property, occupied a portion of it, and received the rents up to the time of his decease in 1875,. when his widow and children, devisees in his last will and testament, succeeded him, and continued in possession, received the rents, etc., until September, 1882.</p> <p>Catharine Armington died ou March 15, 1856, leaving, her surviving, her husband, the said John E. Armington, and childixan, Ann E., Sarah H., John M., Caroline B., and Monterey Arxnixxgton.</p> <p>John E. Axmixxgton died in February, 1877, and in September, 1877, the heirs of Catharine Axmingtoxx brought an action of ejectment for the lot in question.</p> <p>The plaintiffs in this ejectment suit contended that on the death of their mother, Cathaxdne Armington, their father, John E. Armington, became entitled to a life estate in said premises as tenant by the curtesy, with reversion in themselves in fee, subject to the ground rent; that the Malin judgxnexxt, revived without xxotice to hex1, did not bind xxxore than the life estate of John E. Armixxgtoxx, and that the sheriff’s sale passes only that life estate to John Wurfflein; that, after the death of the said John E. Armington, they became entitled to possession of the premises in questioxx, subject to the ground rent.</p> <p>The devisees of Knoell defended the ejectment.</p> <p>The case was tried on October 10, 1881, and a verdict rendered for tbe defendants, and judgment entered thereon.</p> <p>This judgment was reversed on error to the supreme court, the opinion of the court, delivered on March 23, 1882, holding that the plaintiffs were entitled to recover on their title. 12 W. N. O. 113.</p> <p>The case was again tried on October 16, 1882, and a verdict rendered for the plaintiffs; the jury also assessed the damages for mesne profits at $1,300, and judgment entered thereon.</p> <p>In estimating the mesne profits no allowance was made to the Knoells for ground rent.</p> <p>On April 1, 1882, a summons covenant sur ground rent deed first recited was issued in the name of John Wurfflein, assignee of Rebecca O. Snowden, assignee of Joseph II. Roach, assignee of Charles H. Fisher, by whom the ground rent had been created, against Henry Knight and Thomas Armington, the original covenantors.</p> <p>On May 17, 1882, judgment was obtained thereon, without notice to the heirs of Catharine Armington, on two returns of “nihil habet” for the arrears of ground rent from July 1, 1867,, to January 1, 1882, $918.45.</p> <p>The alias summons was returned “served on Christian Knoell, tenant in possession.”</p> <p>On June 20, 1882, a venditioni exponas was issued on this, judgment, and the property advertised for sale.</p> <p>On June 2-8, 1882, the following order was made in the ground rent suit:</p> <p>“And now the court, on motion of-Pile, Esq., and an affidavit, filed, and for the heirs of Catharine Armington, terretenants, 'grant a rule to show cause why judgment should not be opened, venditioni exponas set aside, and the terretenants admitted to make a, defense. Proceedings to stay meanwhile.”</p> <p>On July 1,. 1882, this order was made:</p> <p>“Rule continued and sale to proceed, subject to the rule.”</p> <p>On July 3, 1882, the property in question was put up for sale by the sheriff.</p> <p>There were three bidders at the sheriff’s sale; a gentleman representing John G. Johnson, Esq.', counsel for the Knoells; Joseph M. Pile, Esq., representing the Armington heirs, and the defendant, Walter L. O. Biddle, to whom the property was sold for $2,050.</p> <p>This sum was a fair market price for the property.</p> <p>No notice of the rule to open the judgment, and set aside the venditioni exponas, was given at the sheriff’s sale; but after the property had been struck down, and the sale book had been signed by Mr. Biddle, Mr. Pile asked him whether he knew that there had been a rule granted to open the judgment. Mr. Biddle replied that he did not. This was the first knowledge that the purchaser had that such a rule had been granted; but before he paid the balance of the purchase money, and before the delivery of the sheriff’s deed, he called upon Mr. Pile, and a conversation took place between them on the subject of the litigation between the heirs of Catharine Armington and the Knoells. Mr. Pile a.t that time handed Mr. Biddle a copy of plaintiff’s paper book in the case of Armington v. Kau, in the supreme court.</p> <p>On July 3, 1882, the rule to open judgment and set aside the venditioni exponas was discharged.</p> <p>On July 15, 1882, Enoch Taylor, Esq., sheriff, executed a deed in fee for said premises to the defendant, Walter L. C. Biddle, subject to the said ground rent of $42.</p> <p>On November 18, 1882, the undersigned was appointed .■auditor to distribute the fund in court arising from the sheriff’s .sale above set forth.</p> <p>On December 2, 1882, the bill in equity in this case was filed; :and one of the prayers of the bill for a decree that the fund in ■court be impounded was subsequently granted by the court, the ■opinion upon this branch of the case being reported in the Legal Intelligencer, 1883, p. 4.</p> <p>On February 14, 1883, a venditioni exponas was issued on' the judgment recovered by the heirs of Catharine Armington for mesne profits, and on March 5, 1883, all the estate, right, interest, and title of Charles and Christopher Knoell in the said ground rent of $42 was sold by the sheriff for $950.</p> <p>Of this fund, after payment of the sheriff’s costs, the sum of $118.75 was paid to Mr. Pile for plaintiff’s bill; and the balance, $776.35, was applied towards payment of the judgment of the heirs of Catharine Armington for'mesne profits.</p> <p>The bill in equity in this case was filed by D. Dodge Tomlin-’ son and Caroline B., his wife, in right of said Caroline B., who is one of the heirs of Catharine Armington, against John Wurffiein, Henry Knight, Thomas Armington, Walter L. C. Biddle, John M. Armington, William Elliott and. Sarah H., his wife, Charles Gausline and Anna E.,.his wife, Monterey Armington, Charles Knoell, and Christopher Knoell.</p> <p>An answer was filed by Walter L. C. Biddle.</p> <p>A demurrer and answer was filed by Charles and Christopher Knoell.</p> <p>A demurrer and answer was filed by John Wurfflein.</p> <p>On March 27, 1883, a judgment pro confesso for want of an answer was entered against John M. Armington, William Elliott and Sarah H., his wife, Charles Grausline and Anna E., his wife, and Monterey Armington.</p> <p>The bill alleges that the suit above recited for arrears of ground rent, and the judgment, execution, and sale thereunder to Walter L. C. Biddle, were part, of a scheme fraudulently conceived by the said Charles and Christopher Knoell, or in their interest-, for the purpose of depriving the heirs of Catharine Armington of their title to the premises in question.</p> <p>The prayers of the bill are for a decree that the fund in court be impounded; that the obtaining of the said judgment and sale under the process of this court thereon is fraudulent, void, and of no effect against the heirs of Catharine Armington; that the deed made by the sheriff to'the defendant, Walter L. C. Biddle, be declared void and of no effect; that an injunction may issue restraining the defendants from setting up or claiming title to said premises under the said deed made by the sheriff to Walter L. C. Biddle.</p> <p>On behalf of plaintiffs it was contended: That if John E. Armington, the life tenant, had purchased the ground rent, he could not have brought suit for arrears while in possession and in receipt of the rents; that Wurfflein and Knoell, holding the same estate, were, also bound to keep down the- ground rent; that the Knoells being in possession and in receipt of the rents and profits, and being also the equitable owners of the ground rent, the arrears were paid as they accrued, and no ground rent'was due; consequently the judgment for the arrears was void and passed no title to the sheriff’s vendee, and that, having this defense, they could assert- it against him; that even if a suit could have been brought for the arrears of ground rent, Wurfflein having parted with his title, his suit was a nullity.</p> <p>On behalf of the defendant, Walter L. C. Biddle, it was contended: That Mr. Biddle, being a bona fide purchaser at sheriff’s sale without notice, took the title discharged of all prior equities; that the plaintiffs cannot now be heard, for they have had their day in court; and if dissatisfied with the refusal of the court to stay the sale, they had their remedy by writ of error.</p> <p>The case of Armington v. Rau, 12 W. N. O. 113, decided that the heirs of Catharine Armington were entitled to the premises in question. The effect of this decision was that Wurfflein owned only the life estate of John F. Armington, from which it follows that the purchase of the ground rent by him did not have the effect it was supposed, and that his deed to Knoell was not correct in reciting that by the conveyance of the ground rent to him by Rebecca Snowden, it had “merged and become forever extinguished.” Cadwalader, Ground Rents, § 405.</p> <p>Consequently, the deed from Wurfflein to Knoell, although pretending to convey a fee in the land, actually conveyed his estate therein, to wit: the life estate of John M. Armington, which was all that, passed by the sheriff’s deed to John Wurfflein.</p> <p>Upon the death of John F. Armington, the tenant by the curtesy, in February, 1877, the heirs of Catharine Armington became entitled to the premises in question in fee, subject to the ground rent; and prima facie they were bound to pay the same as it accrued, for even admitting that the arrears had been paid as they accrued up to the death of the tenant by the courtesy, under the decisions of Pennock v. Imbrie, 3 Phila. 140; McDonald v. ITevlin, 4 Phila. 73; Jewell’s Estate, 1 W. N. C. 404, yet certainly it became a charge upon the estate of the Armington heirs after that time. And if due after that date was not the suit properly brought ?</p> <p>This view of the case seems to have been adopted by the plaintiffs; for in the ejectment suit, in estimating the mesne profits, no allowance was made for the ground rent that had fallen due from the death of the tenant by the curtesy to the date of their verdict.</p> <p>Surely, if the Armington heirs were entitled to their verdict for the mesne profits during the time the Knoells were in possession, the latter, as equitable owners of the ground rent, were entitled to an allowance for the ground rent that had fallen due during that period. And having failed to receive this allowance, why had they not the right to bring suit ?</p> <p>The reason given why the plaintiffs should be excused from their obligation to pay the ground rent is that the Knoells, equitable owners of the ground rent, were unlawfully (as was decided in the case of Armington v. Rau) in possession of the very property out of which the rent charge issued.</p> <p>It seems to the master that these two separate and distinct claims, the one for the ground rent, and the other for the land and damages for the wrongful withholding possession, must be asserted in a proper legal manner; and the attempt to set off the one against the other does not appear to be the proper way.</p> <p>Undoubtedly, there was ground rent due; and equally true it is that the Armington heirs were entitled to compensation for the use of their land; but it does not follow from this that one claim cancels the other, and the case of Pennock v. Imbrie, 3 Phila. 140, cited by plaintiffs, and the language of Judge Hark, ■“that when the same hand is to receive and to pay, the law well presume payment,” hardly applies to the case under consideration, for here there are different hands to pay and receive.</p> <p>The two claims are separate and distinct; and we find that in this court the Knoells get judgment for the arrears of ground rent, and in common pleas, No. 4, the Armington heirs in the ejectment suit recover their property, and get a verdict for mesne profits. If the Armington heirs were dissatisfied with the judgment for the arrears of ground rent, and the refusal of the courts to stay the sale and let them defend, they had their remedy by writ of error to the supreme court. Praley v. Steinmetz, 22 Pa. 440.</p> <p>This, upon entering security, would have been a supersedeas, and the sheriff’s sale would not have taken place.</p> <p>The answer to this: that they, not being parties to the suit, were not entitled to a writ of error, does not answer the contention ; for if any error was committed, it must have been the refusal to make them parties to the suit.</p> <p>The master does not attach much importance to the contention that tire suit to recover arrears of ground rent was a nullity because brought in the name of Wurffiein, after the latter had parted with his title.</p> <p>The title he had parted with was the title to the ground, the legal title to the ground rent was still in him, and the evidence •shows that if he did not previously direct the suit to be brought in his name for the use of the Knoells, the equitable owners, he subsequently ratified the action of their counsel in using his name.</p> <p>The deed from Wurffiein to Knoell was for the ground, and •did not lie in the chain of title to the ground rent.</p> <p>The sheriff’s vendee would not be charged with constructive notice of this deed.</p> <p>A purchaser is charged with constructive notice of what appeared in his chain of title. Wade, Notice, p. 136; Woods v. Farmere, 7 Watts, 382, 32 Am. Dec. 772; Hetherington v. Clark, 30 Pa. 393.</p> <p>The record, however, shows no conveyance of the ground rent by Wurfflein; and any purchaser in investigating the title to the ground rent would trace it to Wurfflein, and he would not be bound to go further.</p> <p>The fact that Wurfflein conveyed the ground could not affect the title of the sheriff’s vendee under the execution on the judgment for arrears of ground rent, for that was an entirely distinct title.</p> <p>The legal title to the ground rent to this day is in John Wurffiein. The master therefore thinks this position of the plaintiffs untenable.</p> <p>The act of 1705, § 1, 1 Smith’s Laws, 61, Purdon’s Digest,. 651, is in these words: That “if any of the said judgments,, which do or shall warrant the awarding of the said writs of executions whereupon any lands, tenements, or hereditaments have been or shall be sold, shall at any time hereafter be reversed for any error or errors, then, and in every such case, none of the said lands, tenements, or hereditaments, so as aforesaid taken or sold, or to be taken or sold upon executions, nor any part thereof,, shall be restored nor the sheriff’s sale or delivery thereof avoided, but restitution in such cases only of the money or price for which such lands were or shall be sold.”</p> <p>Under this act it is well settled that a bona fide purchaser at sheriff’s sale Avithout notice takes a good title, even if the judgment Ire subsequently reversed. Heister v. Fortner, 2 Binn. 40, 4 Am. Dec. 417; Burd v. Dansdale, 2 Binn. 80; Warder v. Tainter, 4 Watts, 286; Feger v. Kroh, 6 Watts, 294, and Feger v. Keefer, 6 Watts, 297; Evans v. Meylert, 19 Pa. 402; Gibson v. Winslow, 38 Pa. 49.</p> <p>In this ease no notice AA^as given at the sheriff’s sale of the rule to open judgment and set aside the venditioni exponas.</p> <p>The remarks made by Mr. Pile to the purchaser, after the property Avas struck down and the sale book signed, came too late. The contract of sale was complete at that time, and no notice given then could affect the purchaser; his interest and his obligations attached the moment the lot was struck doAvn. Gibson v. Winslow, 38 Pa. 49.</p> <p>Notice, to affect one in equity, must- be before he has parted with his money or placed himself in a position where he cannot resist the payment. Story, Eq. Jur. § 4-00 b.</p> <p>Notice given before the delivery of the sheriff’s deed cannot affect the question; the deed relates back to the moment the sale was made. Stewart v. Freeman, 22 Pa. 120.</p> <p>No actual notice having been given, could the purchaser be charged with constructive notice ?</p> <p>Wade on the Law of Notice, p. 22, defines constructive notice as “in its nature no more than evidence of notice, the presumptions. of which are so violent that the court will not allow of its being contradicted.”</p> <p>Story defines it as “knowledge implied by the court, on presumption too strong to be rebutted, that the knowledge must have been communicated.” Story, Eq. Jur. § 399.</p> <p>The master is not prepared to decide that the entry on the docket of the rule to open judgment, not brought home to the sheriff’s vendee, could be such constructive notice as would defeat his title.</p> <p>The purchaser was only bound to know that there was a judgment authorizing the execution at the time of the writ. Billing-ton v. Welsh, 5 Binn. 129, 6 Am. Dec. 406; M’Kelvey v. Truby, 4 Watts & S. 323; Carr v. Wallace, 7 Watts, 394; Epley v. Witherow, 7 Watts, 163, and Woods v. Earmere, 7 Watts, 382, 32 Am. Dec. 772.</p> <p>In Eeger v. Kroh, 6 Watts, 294, where land was sold under a void judgment, the sheriff’s title was sustained and the injured party awarded restitution out of the proceeds under the act of 1705.</p> <p>To the same effect is Eeger v. Keefer, 6 Watts, 297; Evans v. Meylert, 19 Pa. 402; Warder v. Tainter, 4 Watts, 286.</p> <p>In view of the facts that the whole case of the plaintiffs' is based on this doctrine of constructive notice, that the purchaser should have examined the docket entries, and that such examination would have disclosed the rule to open the judgment and set aside the venditioni exponas, let us see how far the facts of the ease bear out this contention.</p> <p>The rule was granted on June 28, eight days after the venditioni exponas had issued, and after the property was advertised for sale, and in the regular course of business was probably not docketed until the following day.</p> <p>The order of the court was made on July 1, 1882, and is as follows:</p> <p>“Hule continued and sale to proceed subject to the rale.”</p> <p>Under this order the court never could have intended that the sale was to go on, no notice to be given, the property sold to an innocent third party, and then set it aside and say the purchaser had not been injured, that he had constructive notice, simply because the docket showed the rule to open the judgment.</p> <p>It would be more reasonable to suppose that the order of the court, made as it was after argument, and with knowledge of the plaintiffs’ claim (for the affidavit in support of the rule shows their whole case), meant that the sale should proceed, and that th plaintiffs should give notice of the rule at the sale, so that bidders would not be deceived.</p> <p>Had this been done any purchaser would have had actual notice; and as the plaintiffs seek to set aside the sale on the ground of constructive notice, it certainly would be more equitable to hold that they should have given this notice, rather than claim now that the purchaser is chargeable with constructive notice of any entry made on the docket after judgment,no matter how long after, and up to the very minute the property is knocked down; for if chargeable with constructive notice of such entry, made eight days after the venditioni exponas had issued, would he not also be chargeable with notice of an entry made on the docket an hour before the sale ? If this were so, what purchaser at sheriff’s sale would be safe ? To decide that such a view of the law is correct would be in effect to say that no purchaser could safely take a sheriff’s title.</p> <p>On the other hand, could not this omission to give notice be charged upon the plaintiffs? For sins of omission are often as fatal in their consequence as sins of commission. Peters v. Kerper, 5 W. N. O. 523.</p> <p>They were familiar with all the facts of the case; it was on their behalf that the rule to open the judgment was granted and the order made; and having failed to speak then as between them and the sheriff’s vendee, the master thinks it inequitable that they should now be permitted to assert their title against him. Chapman v. Chapman, 59 Pa. 214; Millingar v. Sorg, 55 Pa. 215, 61 Pa. 471; Lawrence v. Luhr, 65 Pa. 236; New-comet v. Brotzman, 69 Pa. 185.</p> <p>To the mind of the master all the equities of the case a.re in favor of the defendant, the sheriff’s vendee, rather than with the plaintiffs, who, knowing that their title might be devested by the sales, stand idly by and without, one word of warning see •their property sold to a stranger totally ignorant of their claims.</p> <p>One other point remains to be considered.</p> <p>The judgment in this case was by default for want of an appearance on two returns of nihil habet.</p> <p>This practice is recognized by the act of April 8, 1840 (P. L. ■249).</p> <p>A return of nihil habet to successive writs of scire facias on a mortgage is good without notice to the terretenant, and a sale under a judgment thereon passes a good title. Taylor v. Young, ft Pa. 81.</p> <p>In this case, in discussing the subject, the supreme court used the following language: “Our silence on the subject of ground Tent- covenants is not to be construed into an adjudication that we think a different principle is to be applied to judgments obtained thereon on two nihils. We do not deal with the point, because it is not before us in this record.”</p> <p>This meets the case under consideration so completely that the master dismisses that point without further discussion.</p> <p>Upon the whole case, after careful consideration, the master has arrived at the following conclusions: that this court, having entered a judgment for the arrears of ground rent, and after argument having refused to stay the sheriff’s sale thereunder, ■and having subsequently discharged the rule to open it, the sale passed a good title to the sheriff’s vendee; that the suit was properly brought in the name of Wurfflein; that the allegations •of fraud in the bill have not been sustained; that the property brought a fair market price, the proceeds of the sale now being in court; that the heirs of Catkariné Armington, having recovered a judgment for mesne profits (a large portion of which they have already collected), will suffer no injustice by reason of the sale, for they can be awarded restitution out of the fund now in court.</p> <p>The master therefore respectfully reports that, in his opinion, the bill is equity filed in this case by D. Dodge Tomlinson and ■Caroline B., his wife, should be dismissed with costs.</p> <p>Twenty-nine exceptions to the master’s report were taken by the plaintiffs below.</p> <p>Upon dismissing them the court below, Yerkes, J., delivered the following opinion:</p> <p>“This bill proceeds upon the ground of fraud and conspiracy. There is no fraud shown on the part of the defendant Biddle; nor do we think that any actual or constructive notice of fraud has been brought home to him. No decree should be made against him, upon the ground of fraud; and as the only specific relief asked is that the sale to him be declared void, we can make-no decree against the other defendants.</p> <p>“Therefore, in our view of the case much of the contention is. immaterial. We may say we do not agree with some of the conclusions of the master. We do not pass upon the validity of the title which passed by the sheriff’s sale under the-proceedings attacked by this bill; we leave that to be contested at law, if the parties are’ so minded.</p> <p>“The twentieth exception is to the fact that the master did not report that the Armingtons were entitled to the money raised by the execution. Nothing in the bill or the prayers for relief gave-notice to other claimants that its distribution was sought in these-proceedings. Upon the question of distribution they have not. had their day in court.</p> <p>“Exceptions dismissed; and the bill is now dismissed, without costs.”</p> <p>The court entered the following decree:</p> <p>“And now, to wit: September 24, 1885, this cause came on to> be heard on exception to the master’s report, and was argued by counsel; and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed as follows, viz.: the exceptions are-dismissed, the master’s report confirmed, and the bill is dismissed, without costs and without prejudice to plaintiffs’ legal right, if any they have, to maintain an action of ejectment for the same premises.”</p> <p>The assignment of error was as follows:</p> <p>“The court below erred in entering the decree of September-24, 1885.”</p> <p>Cited Yerkes’s Appeal, 14 W.. N. C. 510.</p> <p>A court of equity has a discretionary power over costs.</p> <p>The bill in this case was filed against several persons, and alleged fraud upon the part of some of them, in bringing a suit i.i the name of a stranger to the record, for arrears of ground rent when no rent was due, for the purpose of defeating the title of the Armington heirs to a certain property.</p> <p>Fraud was abundantly proven on the part of some of the defendants ; and the question was whether the appellant had been privy to the fraud. Fie certainly had notice of the equities of the Armiugtons, and actual knowledge in ample time to avail himself of the knowledge and avoid all loss. But he chose to pay the purchase money and take the risk of litigation.</p> <p>So far as the record shows, the appellant paid his own costs, and nothing more. No costs were taxed in the court below.</p> <p>A purchaser for value without notice of the fraud is to be protected only to the extent of his payments prior to the time he receives notice; and if he pays after the notice, he'.must bear the loss. Beck v. IJhrich, 33 Pa. 636, 53 Am. Dec. 507; Juvenal v. Jackson, 14 Pa. 519.</p> <p>The court did not agree with some of the conclusions of the report ; and much of the expense of the reference was incurred in the attempt to sustain the arguments which prevailed with the master, and which were not concurred in by the court.</p> <p>In Yerkes’s Appeal, 14 W. N. C. 510, cited by the appellant, an order upon one of the parties had been made, by the court, to pay costs which were primarily to be paid by another. Gyger’s Appeal, 62 Pa. 74, 1 Am. Hep. 382; O’Hara v. Stack, 90 Pa. 477.</p>

July Term, 1886, No. 96, E. D. Error to the Common Pleas of Lackawanna County to review a judgment- on a verdict for the defendants in an action of ejectment This was an action by E. V. Jackson and Ira M. Kirkendall against Theron Eerris, Harriet N. Eerris, Fremont Eerris, Lillian Eerris, and Edward Erear and Emma, his wife, in right of said wife.

January Term, 1887, .No. 84, E. D., before Mercur, Oh. J., Gordon, Paxson, Trunkey, Sterrett, and Clark, JJ. Appeal from a final decree of the Common Pleas of Chester County confirming the report of an auditor appointed to examine and report his opinion upon exceptions filed to the account of a trustee.

January Term, 1887, No. 304, E. D. Appeal from a decree of the Common Pleas of Lackawanna County in favor of the plaintiff in a bill in equity.

<p>January Term, 1887, No. 76, E. D. Error to the Common Pleas of Lackawanna County to review a judgment on a verdict for the defendant in an action of assumpsit.</p> <p>Proceedings involving the rights of this school board were before this court in Gilroy’s Appeal, 100 Pa. 5; Gilroy v. Com. 105 Pa. 184, and Gilroy v. Jones, No. 197, July term, 1882, 4 Law Times N. S. 121.</p> <p>The facts, as they appeared at the trial before Hand, P. J.r were stated in his charge to the jury, which was as follows:</p> <p>Under the view that is pressed upon the court, by the counsel for the defendant, the court feels that the responsibility of this case is with them. We would be very glad to relieve ourselves of it, but it is one of those duties which is incumbent upon the court; and we will have to dispose of the case, therefore, in a formal charge, and direct a verdict for the defendant.</p> <p>In order that our views may be understood (and so if any wrong is done to the plaintiff lie may have that corrected) we will briefly state our views of tbe case.</p> <p>Tbe action of tbis case is founded upon a claim, that tbe board of school directors of tbe borough of Archbald, called tbe Gilroy board, was a de facto board; and as such their acts were binding, so far as regards tbis plaintiff, to such an extent as to bold tbe district responsible for bis services as a school teacher in that district.</p> <p>Tbe case involves a decision on tbe part of tbis court, under the undisputed evidence of tbe case, of tbe question as to whether, as between tbe Miller board and tbe Gilroy board, tbe Gilroy board was a de facto board. Tbe evidence in tbis case, so far as it affects it, down to June, 1881, is tbe same as was adduced in tbe case of tbe quo ivarranto, and we therefore reach, under tbe evidence, tbe conclusion tbe same as we did there, that in June, 1881, tbe board called tbe Miller board was tbe de jure board, tbe only lawful board in existence. This board, under itbe undisputed evidence in tbe case, organized in June,-1881, .and, as an organization, was lawful. Tbis organization in tbe .•successive years, down and through tbe year 1883 and 1884 ■under the evidence in this case, was a de jure board, the individual officers changing from time to time, either by the expiration -of their term or by resignation, but not to such an extent as to -destroy the character of tbe board as an organization as a lawful '.’board.</p> <p>It is possible that, upon a technical examination, one or more members of tbe board, individually, might not be found qualified to bold tbe office, but, as a board, and as an organization, its de jure character remained intact down to and throughout tbe year 1883.</p> <p>If we are right- in this view, tbe only other question of law and fact is, Did tbis board from 1881, down to 1883, act in its organized capacity, as a board of school directors for the borough <of Archbald? Under tbe undisputed evidence in tbis case, we ffeel compelled to reach tbe conclusion that it did. Tbe character of tbe evidence is sueh-tbat it does not rest upon tbe credibility of witnesses; but it is of tbe same character as that testimony which was adduced in tbe quo warranto case, upon which we decided the same fact; hence, it follows that tbe question of a rival board, beginning in 1881, unlawfully, and continuing down to the year 1883, being a de facto board does not arise in tbe case;, and conseqiiently, inasmuch as the plaintiff holds his office and founds his claim upon the acts of this board, he cannot recover.</p> <p>We are asked to charge you upon several points. We will read them and answer them in order to preserve the rights of the parties.</p> <p>[The court first answers the defendant’s points, and then the plaintiff’s which were, inter alia, these:]</p> <p>6. “If the men who employed the plaintiff were de facto officers, and the jury believe the evidence of the employment contract and services of White for the time he was employed, their verdict should be for the plaintiff for $615, with interest from the first day of June, 1881.”</p> <p>Ans. Under the facts in this case we answer this in the negative.</p> <p>T. “The act of 1883, upon which the order of court for the election in 1883 was made, is unconstitutional; and those holding under ward elections for 1883 — 4, to wit: the ‘Miller board,’ •were not legal directors.”</p> <p>Ans. It is not necessary for us to decide, in this case, whether the act of 1883 is constitutional or not- We therefore decline to charge as requested.</p> <p>8. “The voters of the school district of the borough of Arch-bald could not legally vote by wards for school directors in 1883. The provisions of the acts of assembly relating to the election of school directors by wards were not complied with in the proceedings purporting to establish ward elections for school directors in that borough.”</p> <p>A ns. It is not necessary for us to decide this question in this case; and therefore we decline to affirm this point.</p> <p>Under this view of the. court, you will render a verdict for the defendant. ...... .........</p> <p>Verdict and judgment accordingly.</p> <p>The assignments of error specified the answers to the points quoted, the direction to find for the defendant, and the ruling that the organization of the Miller board in 1882 was legal, and they were the de jure board.</p> <p>(An officer de facto seems to be a person who is such by color of election, although ineligible, or although the office was not vacant. M’Gargell v. Hazleton Goal Co. 4 Watts & S. 424.</p> <p>Lord Ellenboroitgii defines an officer de facto as one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law.</p> <p>When a person holds an office by color of right he is an officer de facto. Hill. Mun. Corp. §§ 114, 716, pp. 243, 676.</p> <p>As a general rule it may be stated that not only when the corporate power resides in a select body as a city council, but where it has been delegated to a committee or to agents, then, in the absence of special provisions otherwise, a minority of the select body, or of the committee or agents, are powerless to bind the majority or do any valid act. Dill. Mun. Corp. § 221, p. 247.</p> <p>The doctrine of the court below in this case appears to be that when there is a contest over municipal officers the public must deal with the dc jure officers or their contracts are void.</p> <p>If this is the law, then whenever there is a contest over municipal office the business of the corporation must stop until a decision is reached.</p> <p>As to the attempt to enjoin the Gilroy board, see Gilroy’s Appeal, 100 Pa. 5.</p> <p>The act of February 16, 1883, purports to be general. But is it not special and within the prohibition of article 3, § 7, of the Constitution ? It provided for a change in the number and mode of election of school directors in a certain class of boroughs, that is, those that had been divided into wards.</p> <p>The act of 1874 provided for the division of boroughs into wards; the supplement of 1876 provided that the court decreeing the division might upon certain conditions increase the number of councilmen and school directors so that each ward should have an equal number. The act of 1883 provides that from and after such division into wards or when any such division has heretofore been made each ward shall elect not less than one nor more than three school directors.</p> <p>Probably the only borough upon which this act became operative at once was the borough of Archbald, for it had been divided into wards. In all other cases it was necessary to obtain a division under the provisions of the act of 1874, before a change in the number of and mode of voting for school directors could be made. All our recent decisions are to the effect that if local results either are or may he produced by a piece of legis■lation it offends against this provision of the Constitution (art. 3, § 7) and is void. Scranton School Dist-.’s Appeal, 113 Pa. 176, 6 Atl. 158; Com. ex rel. Pertig v. Patton, 88 Pa. 258; Scowden’s Appeal, 96 Pa. 422; Davis v. Clark, 15 W. N. C. 209; McCarthy v. Com. 110 Pa. 243, 2 Atl. 423; Scranton v. Silkman, 113 Pa. 196, 6 Atl. 146; Com. v. Halstead, 3 Sad. Rep. 186.</p> <p>The contracts of school directors, although not properly recorded, if performed by the party dealing with them, can be enforced. School Directors v. McBride, 22 Pa. 216; Genesee Twp. v. McDonald, 98 Pa. 444.</p> <p>In actions against public officers it is sufficient to prove that they acted as such. Neale v. Overseers, 5 Watts, 538; Barnet v. School Directors, 6 Watts & S. 46; Riddle v. Bedford County, 7 Serg. & R. 392.</p> <p>A certificate of an election is prima facie evidence of title to an office. Dill. Mun. Corp. § 716, p. 667; Campbell v. Com. 96 Pa. 344; Clark v. Com. 29 Pa. 129.</p> <p>The acts of public officers de facto are valid, so far as the public or third persons are interested therein. Keyser v. M’Kissan, 2 Rawle, 139; Thompson v. Ewing, 1 Brewst. (Pa.) 67; Neale v. Overseers, 5 Watts, 538.</p> <p>The claim of the plaintiff is based upon a contract with persons who were acting as school directors, and who were apparently authorized by election to make agreements for the municipality. He carried out his agreement in good faith; the district had the benefit of his services, and he insists upon his right to recover the amount due upon his contract.</p> <p>The rule is that where there is evidence which alone would justify an inference of the disputed fact, it must go to the jury, no .matter how strong or persuasive may be the countervailing proof. A court may set aside a verdict as against the weight of the evidence, but that is the most they can do to assist the party. But in a case in which a court ought to say that there is no evidence sufficient to authorize the inference, then the verdict would be without evidence, not contrary to the weight of it. Whenever this is so they have the right, and it is their duty, to withhold it from the jury.</p> <p>But where the weight on one side is of such a character as not to incline the beam at all — what the civilians term a mere adminiculumj good to help something else — nothing but a conjecture — then it is as much a question for the court as if this scintilla was absent. Howard Exp. Co. v. Wile, 64 Pa. 205; Battles v. Laudenslager, 84 Pa. 452.</p> <p>When the evidence is not in conflict upon the question of fact in dispute, the plaintiff’s points may assume the facts to be in accordance with the evidence. Wannamaker v. Burke, 111 Pa. 430, 2 Atl. 500; Hoag v. Lake Shore & M. S. R. Co. 85 Pa. 298, 27 Am. Rep. 653.</p> <p>When a fact essential to the maintenance of a cause is not established by proof, the judge may order a nonsuit, or direct a verdict for defendant; and when the requisite facts are agreed upon or admitted, he may instruct a finding for plaintiff. Le-high Valley R. Co. v. McKeen, 90 Pa. 127, 35 Am. Rep. 644.</p> <p>In the case now before the court the evidence on part of the plaintiff wholly failed to establish any of the essential facts requisite to maintain the action.</p> <p>All the evidence on part of the plaintiff fails to show that the Gilroy board was a de juré board of school directors of the district ; but it does show that there were two boards acting as and each claiming to be a de jure board of school directors for the district. Certainly they both were not de jure boards.</p> <p>If both boards were usurpers, each acting under its own illegal and belligerent claim, neither of them was such a de facto board as had power to bind the district by contract with third parties. If the one could, then the other could; and if these two could, any indefinite number of usurping boards could do so, which would be such an intolerable and unjust condition as to be ruinous to the district, and which no court should uphold. Genesee Twp. v. McDonald, 98 Pa. 448.</p> <p>A person cannot be a de facto officer unless there be an office to be filled; nor when the office exists with an incumbent exercising the franchises and discharging the duties incident to the office. It matters not whether such incumbent be a de facto or a de jure officer. Com. ex rel. Chase v. Harding, 87 Pa. 353; Genesee Twp. v. McDonald, 98 Pa. 449.</p> <p>The constitutionality of the act of 1883 could not affect the case.</p> <p>The mode prescribed by the statute for the employment of teachers for the public schools must be strictly complied with. School District v. Padden, 89 Pa. 395.</p> <p>The mode prescribed by the statute is that no teacher shall be appointed, except by the affirmative votes of the whole number of the directors or controllers of the district; and in each case the names of the members voting, both in the affirmative and the negative, shall be so entered in the minutes of the board by the secretary; and immediately after the annual appointment of teachers in each district, the secretary of the board shall send a written list of the names, and the schools to which they have been respectively appointed, to the proper county superintendent, with a notice of the day upon which the ensuing term of school in the district will commence, and the termination thereof as directed by the board. Purdon’s Digest, p. 289, pi. 37.</p> <p>The directors shall have the appointment of all the teachers of common schools in the district, fix the amount of their salaries, dismiss them, etc. Purdon’s Digest, p. 290, pi. 51.</p> <p>The plaintiff was not employed by the Miller board; he held it at arm’s length and refused to recognize its authority or legality.</p> <p>In Kerr v. Trego, 47 Pa. 296, Chief Justice Lowrie says: “On the division of a body that ought to be a unit the test of which represents the legitimate social succession is, Which of them has maintained the regular forms of organization according to the laws and usages of the body, or, in the absence of these, according to the laws, customs, and usages of similar bodies in like cases, or in analogy to them.</p> <p>“'This is the uniform rule in such cases. ... In all cases where part of the public body remains and is to be completed by the reception of new members, it remains as an organized nucleus, and in its organized form it receives the new members and then proceeds to the election of new officers, if any are then to be elected. The old nucleus is not dissolved by the incoming elements, but these are added to it, and then the whole body proceeds to the exercise of all its functions.”</p>

January Term, 1887, No. 58, E. D. Error to tbe Common Pleas of Chester County to review a judgment on a verdict for the defendant in an action of trespass on tbe case.

<p>January Term, 1887, No. 54, E. D. Error to the Common Pleas of Lackawanna County to review a judgment on a verdict for the plaintiffs in a feigned issue to try the ownership of a promissory note.</p> <p>The facts, as they appeared at the trial before Hand, P. J., were stated in his charge to the jury, which was as follows:</p> <p>This trial is called a feigned issue. It is a trial to determine the ownership of a note, given by John Handley to James Morahan, dated the 22d day of September, 1882, for $1,726.63, on which there is a balance unpaid of about $1,054.95.</p> <p>Ordinarily this note would belong to the estate of James. Morahan, and should pass to the custody of his administrator. But it is alleged by these plaintiffs that it belongs to Rebecca McAndrew, the wife of Thomas McAndrew, by reason of a gift, on the part of James Morahan, while he was living, called a gift. inter vivos; that is, a gift between living persons.</p> <p>This, gentlemen of the jury, is the sole question for you to determine : Was this note a gift absolute to Rebecca McAndrew ?</p> <p>It is alleged that about the 8th of January, 1884, James Moraban gave the note to her, under circumstances as detailed by Mrs. Fannie Gross; that this was a gift, as testified to by her, is corroborated by the testimony of P. O. Clark. This transaction occurred a little over a month before the death of Morahan; he died about the 18th of February, 1884.</p> <p>It is alleged by the defendant that it was not a gift in law, or if it was, that it was made under such circumstances of undne influence, or duress, as to constitute it an inequitable transaction ; such a transaction as equity would not allow to be consummated, but will set aside as being unconscionable.</p> <p>Now, under this simple, sole issue, you will give your close consideration to all of the testimony in the case, and determine it as the evidence shall warrant you. You will render no verdict in this case for any amount of money. The question of' compensation for the keeping and board of James Morahan is not before us. It is only: To whom does this note belong? If it belongs to Rebecca McAndrew, your verdict should be simply for the plaintiff; if it does not belong to Rebecca McAndrew, your verdict should be simply for the defendant.</p> <p>If your verdict should be for the defendant, it does not prevent the plaintiff, T. W. McAndrew, from obtaining his proper-compensation upon his bill presented to the administrator.</p> <p>Now, to the question: Does this note belong to Rebecca McAndrew? The law on this subject you must take from the court; the determination of the fact is for you, under the rules of law.</p> <p>In Pennsylvania there is no doubt that a person may give a note, or a chose in action, to another person. After the donor is dead, clear and satisfactory proof of the gift (and of the delivery in pursuance of it) is requisite.</p> <p>Now, what is the evidence in this case ? The evidence mainly turns upon the testimony of Fannie Gross, so far as the plaintiffs’ allegations are concerned, as they claim, corroborated by P. O. Clark. We will read that evidence; she testified to about the same on cross-examination, repeating it. The question was ■asked her: “I wish you would go on and state what was said.”</p> <p>That was at the time that McAndrew, his wife, and Morahan were present. Mrs. Gross answered: “Well, my mother told him she would rather have him go; that she didn’t want to keep him; there were a great many of the boarders told her they would not stay if she kept him. So they were having a talk aborrt it that day, and he says: ‘Well, here,’ he says, ‘I will give you this paper to pay you for your trouble, and take good care of me while I am sick.’ He said, ‘I give it to you.’ ”</p> <p>Q. “Just repeat again what he said.”</p> <p>A. “He says: ‘You take this and take care of it, it is yours;’ ■and he says: ‘Take good care of me while I am sick.’ She told him she would rather not take him; she would rather he would go; she would rather not keep him at all.”</p> <p>P. C. Clark, who was sworn, testified: “He told me (that is Morahan told him) Mrs. McAndrew had objections to keeping him in her house, and that he would 'have to leave, and he gave her compensation for the necessary trouble.”</p> <p>We read this testimony because it is the main testimony, but not to withdraw any other facts from your consideration, which throw any light upon this transaction.</p> <p>[Now, did Mr. Morahan intend to give to Mrs. McAndrew this note absolutely ? And did he deliver it to her as a gift ?] If he did, then the plaintiffs can recover. If he did not intend it as a gift, but only as a security in her hands for the board and keeping that was due to her and her husband, out of which her husband could obtain his compensation, then it was not a gift, but to secure the proper and legal compensation for the keeping ■of Morahan.</p> <p>[There is some evidence in the case, and its effect is for you, that this note was in the possession of Morahan at the time of his death; that it went into the possession of Mrs. Moraban, and that she delivered it, after his death, to McAndrew, who claimed that he was the executor of Morahan, and should receive it. This evidence, if you believe it, is somewhat corroborated by the evidence of Miss Gannon, that McAndrew said, in the presence of his wife, that this note belonged to the estate of Morahan, and that her mother should receive her share of it in the settlement of the estate, after McAndrew had settled up the estate, he stating at the time that there was a will, and that he was the executor of it.]</p> <p>There is also evidence that McAndrew did not consider the note as compensation for the keeping of Morahan, by his presenting a bill for his keeping to the administrator, and receiving part pay of the bill from the administrator. This part is not in dispute — 'the effect of this evidence, on the question of a gift or not, is for you, all to be taken in connection with the evidence on the part of the plaintiffs.</p> <p>You will understand that, in order to consummate the gift, there must be an intention to pass it, to give it to the donee; and there must be actual delivery of it to the donee.</p> <p>Now, if you believe the evidence that the note was subsequent to that in the possession of Morahan, it would show that it was not in the possession of Mrs. McAndrew. We speak of this because it is a circumstance testified to in the case. And the evidence must be clear and satisfactory that a chose in action was not only intended to be given, but was actually given, and the possession passed over to the donee.</p> <p>Another part of this investigation is, Was this transaction, under all the circumstances, a voluntary gift made without undue influence ? If it was not, then the plaintiffs cannot recover.</p> <p>It is not that Morahan was of unsound mind, memory, or understanding, but: Was the note obtained under such circumstances as to constitute undue influence? Or such circumstances as would make it wrong for the plaintiffs to keep the note ?</p> <p>It is in evidence that at the time of this transaction Morahan was more or less of feeble body; that he was sick with a loathsome and unrighteous disease; that he had boarded some time with McAndrew and his wife; that he had no home to go to; that McAndrew and wife were about to deny him board and keeping at their house, because of his condition; and that under these circumstances he did that which he would not, and ought not to have done, if left free, and with his full judgment in play.</p> <p>Now, where facts exist showing that a person takes advantage of a gift under circumstances of dependence, feebleness, sickness, and possibly shame, on the part of the donor, such as to amount to undue influence, and deprive the transaction of voluntariness and freedom on the part of the donor, and of perfect candor between both parties, equity prevents the donee from securing any benefit from the transaction. . . .</p> <p>[In order to apply this principle of equity in this case, do you find from the evidence that such circumstances exist? Now, these circumstances and these facts are for you to find; that is, it is for you to determine whether the evidence proves them. If you find that they do exist, then the plaintiffs cannot recover. It will be inequitable for the plaintiff to recover if she obtained this gift under undue influence.]</p> <p>In other- words, when a gift is set up after the death of the giver, the evidence must be clear and satisfactory.</p> <p>The plaintiffs ask the court to charge, inter alia:</p> <p>“That if the jury believe the testimony of Fannie Gross, the giving of the note by Morahan to Mrs. McAndrew was an executed gift.”</p> <p>Ans. We leave that question of fact for you. We cannot decide that. It is for you to determine, under all the evidence, whether this was an executed gift. If you find from the evidence that it was an executed gift, then it was good and your verdict should be for the plaintiffs. But whether it was an executed gift or not is the real question in the case.</p> <p>As we look at this case it is a question of fact for the jury, to be determined under all the light that is thrown upon the case from the evidence before you. The evidence has been very ably argued before you on both sides, and brought to your attention specifically; it is for you to weigh it carefully and determine what this transaction was. If it was not a gift to Mrs. McAndrew, or if it was under such circumstances that equity would not enforce it on the principles we have laid down, then the verdict should be for the defendant.</p> <p>The verdict and judgment were for the plaintiffs.</p> <p>The assignments of error specified the portions of the charge inclosed in brackets, the answer of the court to the plaintiffs’ second point, the admission of the testimony of Fannie Gross -and the submission of the question of delivery.</p> <p>The evidence shows that the parties were talking about Morahan either going from McAndrew's or ■continuing with them, and of pay or compensation for the same. The board and care spoken of was the property of the husband. The wife's labor, etc., belonged to the husband. The compensation or pay for the board and care that was to be afforded to Morahan would belong to the husband.</p> <p>The evidence tended toward proving a contract with T. W. McAndrew, but in no manner toward establishing a benefaction to Mrs. McAndrew.</p> <p>There was not sufficient evidence in the case to warrant submitting to the jury the question whether Mr. Morahan intended to give to Mrs. McAndrew the note absolutely, and whether he ■delivered it to her as a gift.</p> <p>The doctrine that a scintilla of evidence of a disputed fact must be submitted to the jury is exploded. Howard Exp. Go. v. Wile, 64 Pa. 205; Battles v. Laudenslager, 84 Pa. 451.</p> <p>The confidential relation of the parties and Morahan’s condition of dependency, and his physical and mental condition, forbade the plaintiffs to accept so large a gift from Morahan. Huguenin v. Baseley, 14 Ves. Jr. 300.</p> <p>He who bargains in matter of advantage with a person placing confidence in him is bound to show that a reasonable use Fas been made of that confidence; the rule applies to trustees, ■attorneys, or anyone else. Gibson v. Jeyes, 6 Ves. Jr. 278.</p> <p>The relief stands upon a general principle, applying to all the variety of relations in which dominion may be exercised by one person over another. Bent v. Bennett, 4 Myl. & O. 277.</p> <p>Whenever one person obtains by voluntary donation a large pecuniary benefit from another, the burden of proving that the transaction is righteous falls on. the person taking the benefit. 3 Lead. Cas. Eq. 112.</p> <p>The improvidence of the transaction under all the circumstances furnishes a probable test of undue influence or fraud. Harvey v. Mount, 8 Beav. 439. That one was anxious to part with his property without receiving an equivalent, and was not in any way biased or influenced by the person with whom the transaction was made, may relieve the latter from the charge of having used actual fraud and artifice, but it shows the incapacity of the former in the strongest colors, and heightens the presumption of that species of fraud which consists in taking advantage of imbecility, ignorance, dependency, or necessity.. Doughty v. Doughty, 7 N. J. Eq. 227; Torrey v. Buck, 2 N. JEq. 367.</p> <p>. Fraud which is dolus malus may be actual, arising from facts, and circumstances of imposition, or may be apparent from the-intrinsic nature and subject of the bargain itself, or may be presumed from the circumstances and condition of the parties contracting. Chesterfield v. Jansen, 2 Yes. Sr. 155, 156.</p> <p>As to what amounts to undue influence is a question for the-judge to decide, upon the circumstances of each particular case,, and such circumstances as the nonintervention of a disinterested person, or professional adviser on the behalf of the donor, especially if the donor is, from age or sickness or weakness of disposition, likely to be imposed upon. Griffiths v. Bobins, 3. Madd. 191; Dent v. Bennett, 4 Myl. & C. 273; Harvey v. Mount, 8 Beav. 439; Greenfield’s Estate, 14 Pa. 505 — 507;. Miskey’s -Appeal, 107 Pa. 611; Darlington’s Appeal, 86 Pa-512, 27 Am. Bep. 726.</p> <p>• The conscience of a judge, as chancellor, must be satisfied;, and what goes to the jury is to determine the credibility of the witnesses, and to weigh and decide upon the force and effect of ■conflicting testimony. If the evidence is too vague, uncertain, or doubtful to establish the equity set up, even if believed, it is. the duty of the judge to-withdraw it from the jury, either bynonsuit or a binding direction in his charge, as the case may be-Church v. Buland, 64 Pa. 442.</p> <p>The verdict of a jury in an equity case is always upon a. feigned.issue — as it is in this case, and is not binding upon the-court; when the court is dissatisfied with the verdict, it may-disregard it and decide the case contrary to the verdict, when,, in the opinion of the court, the case should be so decided; and that, too, without sending the case to another jury. Scheetz’s Appeal, 35 Pa. 94; Todd v. Campbell, 32 Pa. 252; Freeman vStaats, 9 N. J. Eq. 821; Allen v. Blunt, 3 Story, 746, Fed. OasNo. 216.</p>

July Term, 1885, No. 186, E. D., before Meeoue, Ch. J., Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. Error to the Common Pleas of Somerset County to review a judgment on a verdict for the defendant in an action of scire facias to review a judgment. Judgment was confessed on behalf of defendant by the attorneys for plaintiffs on the following note : $64.63. Davidsville, Pa., Dec. 1, 1873.

July Term, 1886, No.'36, E. D., before Gordon, Paxson, Truneey, Sxerrexx, and Glare, JJ. Certiorari to tbe Common Pleas of Wayne County to review a decree designating a curtilage subject to mechanics’ lien under the act of June 16, 1836. The case is stated in the opinion of tbe court below.

January Term, 1887, No. 19, E. D., before Mebcub, Oh. J., Paxson, Trunkey, Sterrett, Green, and Clark, JJ. Error to the Common Pleas of Berks County to review a judgment on a verdict for the plaintiffs in an action of ejectment. The facts as they appeared at the trial before Ermentrout, J., were as follows: Catharine Gehr died in 1877, intestate, unmarried, and without issue, seised of a tract of 231 acres of land situate in Maxatawny township, Berks county.

January Term, 1887, No. 37, E. D., before Gordon, Paxson, Trunkey, Sterrbtt, and Clark, JJ.

July Term, 1886, No. 57, E. D., before Mercur, Ch. J., Gordon, Trunks y, Sterrett, Green, and Clark, JJ. Error to the Common Pleas of Berks County to review a judgment on a verdict for the plaintiff in a feigned issue. On tbe 18th of September, 1876, Messrs. Bernhart & Koch obtained judgment against David Mitchell for $942.55.

January Term, 1887, No. 178, E. D., before Mercub, Ch. J.. Gordon, Paxson, Trunkey, Sterbett, and Green, JJ. Error to the Common Pleas of Berks County to review a judgment on a verdict for the plaintiffs in an action of assumpsit.

<p>The presence of a brother and a nephew of the testator at the making of his will, in which they are legatees, does not, without more, raise a presumption of undue influence.</p> <p>The question of testamentary capacity is for the jury.</p> <p>The burden of proving mental unsoundness is always upon those who allege it.</p> <p>If, however, general or habitual unsoundness of mind be shown previous to the will, the burden of proving a lucid interval or restoration to sanity,, at the time, is in turn thrown upon those who allege it.</p> <p>If, at the time of making the will, the testator was sound in mind and knew the business in which he was engaged, it is immaterial that he was. mentally unsound before or after.</p>

January Term, 388J, No. 88, E. D. Error to the Common. Pleas of Berks County to review a judgment on a verdict for the. plaintiff in an action of trespass on the case for slander.

The original opinion affirming the judgment below is reported in 114 Pa. 300, 9 Atl. 878. On a motion for reargument (B. F. Jurikin and George Jacobs appearing for the motion), the affidavit of Dwight Mead, made since the judgment was affirmed, was presented.

January Term, 1887, No. 301, E. D., before Mercur, Ch. J,, Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. Error to tbe Common Pleas of Berks County to review a judgment on a verdict for the plaintiff in an action of trespass on the case. The facts, as they appeared at the trial before Ermentrout, J., are stated in his charge to the jury. The plaintiff offered in evidence, inter alia, the record of a former suit, No. 19, October term, 1877.

January Term, 1887, No. 397, E. D., before Mercur, Ch. J., Gordon, Trunicey, Sterrett, Green, and Cdark, JJ. Error to the Common Pleas of Columbia County to review a judgment on a verdict for the plaintiff in an action of assumpsit. This was an action by Zebulon S. Robbins against George M. and John K.. Loclcard, trading as G. M. & J. K. Lockard. It ■originated before a justice of the peace.

January Term, 1887, No. 221, E. D., before Merque, Ch. J., Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. Error to the Common Pleas of Perks County to review a judgment on a verdict for the defendant in an action of assumpsit.

January Term, 1887, No. 96, E. D., before Mercur, Ch. J., Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. Appeal from a decree of the Orphans’ Court of Berks County dismissing a petition for a citation.

January Term, 1886, No. 379, E. D., before Mercur, Oh. J.,. Gordon, Trunkey, Sterrbtt, Green, and Clark, JJ. Appeal from a decree of the Orphans’ Court of Berks County dismissing exceptions and awarding distribution. The facts are stated in Rhein v. Miller, post, p. 501. The exceptions filed by Rebecca S. Miller to the adjudication' were as follows: 1.

July Term, 1886, Nos. 205, 206, E. D., before Mercur, Oh. J., Gordon, Paxson, Trunicey, Sterrett, Green, and Clark, JJ. Appeals from a decree of the Orphans’ Court of Columbia County confirming an auditor’s report with modifications, and awarding distribution. Moses Everett died July 8, 1877, leaving to survive him a widow, Letitia Everett, and six children, viz., T. V. Everett, James, Henry C., Albert, Mary M., and Clara J., intermarried with one Melick.

January Term, 1886, No.-371, E. D., before Mercer, ON J., Gordon, Trunkey, Sterrett, Green, and Clark, JJ„ Appeal from a decree of the Orphans’ Court of Berks County dismissing exceptions to an adjudication and awarding distribution.

January Term, 1886, No. 179, E. D., before Mercur, Oh. J., Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. Error to the Common Pleas of Berks County to review a judgment on a verdict for the defendant in an action of ejectment.

July Term, 1886, No. 163, E. D., before Gordon, Trunkey, Sterrett, and Clark, JJ. Appeal from a decree of the Common Pleas of Lackawanna County dismissing a bill in equity to-set aside a conveyance. The facts as they appeared before tbe master, Henry S.. Knapp, Esq., were stated in his report, which was as follows: The plaintiffs are beirs at law of Enoch Plartman, who died at the house of his son-iu-law, Elias Lowry, one of the defendants, upon the 1st day of January, 1881.

<p>January Term, 1887, No. 2, E. D., before Mercur, Oh. J.r Gordon, Paxson, True key, Sterrett, Green, and Clark, JJ. Error to the Common Pleas of Columbia County to review a judgment on a verdict for plaintiff in an action of trespass for cutting timber.</p> <p>This action was brought by James Bird against Darlington R. Kulp, Curtis G. McWilliams, and William O. McConnell, doing business as Kulp, McWilliams, & Company.</p> <p>Tbe facts sufficiently appear from the charge of the court given below.</p> <p>Tbe plaintiff offered in evidence a certified copy of the will of Henry Eisher, deceased, dated September 24, 1816, to show that the land ivas devised to the mother of James Bird and that from her, title vested in James Bird, the plaintiff; to be followed by'proof that her title became vested in the plaintiff.</p> <p>Objected to by defendants: (1) Because by tbe second section of the will, the tract of land surveyed on warrant to Henry Eisher, given in evidence, was devised in fee unto John Eisher, and Caleb Eisber, without reservation; and if Sarab Bird acquired any right to tbe 10 acres from said land devised by the second section to Caleb and Jobn Eisher, by words expressly conveying tbe fee, it was only a life estate, as the will was .executed and probated before tbe act of April 8, 1833; (2) it is irrelevant for the purpose for Avhicb. it is offered.</p> <p>By tbe Court: These objections are overruled; the plaintiff alleges that he can show title in himself; we Avill have all the eAridence out and then we can judge of the title.</p> <p>Plaintiff offered in evidence the agreement between the plaintiff and his mother, brothers and sisters, for the purchase by him of this 10 acres of woodland, to be followed by regular deeds of conveyance, executed and delivered according to law.</p> <p>Objected to by the defendants: (1) Because according to the terms of the offer it is merged in the deeds subsequently executed and delivered to the plaintiff; (2) because it is signed by three married women, Avhose husbands did not join and did not acknoAvledge it as required by the act of assembly; and it is as to them, null and void; (3) because it is irrelevant for the purpose for which offered or for any purpose in this case.</p> <p>By the Court: We will alloAv this to be read in eAÚdence; it is void as to third parties.</p> <p>Defendants, inter alia, presented the following points:</p> <p>2. The plaintiff having alleged in his declaration that he was seised in his demesne as of fee of and in the 10 acres of land described in his declaration filed in this case; and having claimed triple damages for cutting timber trees upon the same, is bound to show that he Avas the OAvner of said land prior to the bringing of this suit; and, having failed to establish such OAvnership, cannot recover in this suit, and the verdict must be for the defendants.</p> <p>A. I answer, substantially, as I have already charged, that if James Bird acquired an equitable title to an interest in the land on which the alleged trespass was committed by purchasing from the legal OAvner, and continued to hold the same by virtue of articles of agreement until a trespass was committed thereon before the commencement of this suit, the allegation of his seisin and title as OAvner is sufficiently sustained for the purposes of the suit.</p> <p>3. The plaintiff, having shown by the patent to John Fisher, offered in evidence by him, that the complete title Avas vested in the said John Fisher on the 15th day of July, 1873, and having failed to shoAV any conveyance of this title to him, or that the same became in any way prior to the bringing of this suit vested in him, cannot recover.</p> <p>A. I refuse to affirm that point. Under the evidence in the cause, John Fisher, having obtained a patent in 1873 of the land granted to Henry Fisher in 1814, the purchase money having been paid by Henry Fisher, and he, John, being the devisee of Henry Fisher of the amount of land in the contract except the 10 acres, was trustee of the portion devised to his sister, Mrs. Bird. The rule of law is that the patent is granted by the commonwealth to the persons who are entitled and who have paid. Here J ohn Fisher was the devisee, along with his brother Caleb, of a portion of the land; it was therefore proper enough for him to procure a patent and to complete the title which had come down to him as devisee under his father; and therefore he applied to the land office and obtained a patent, which has been read in your hearing, for the whole of it covering the ten acres, an undivided patent. From what transpired in the trial of the cause, we may fairly presume that he claimed the whole of it on the ground that he and Caleb were first named in the will, and that therefore he had a right to it. He having taken a patent for the whole, and the commonwealth in that patent setting forth that the purchase money had been paid by Henry Fisher at the time of granting the warrant, and that he, John, had derived title from Henry, that was true in part, because he had so derived it and his patent covered the whole.</p> <p>It is claimed here that the plaintiff, having given this patent in evidence, cannot say that anybody else than J ohn Fisher had the title; but when you take into consideration all the circumstances : that his sister Sarah, his brother Caleb, and he were devisees under the same will and for portions of the same tract, and the recital that his title had come from Henry Fisher, in the judgment of the court, it does not preclude tire defendants (plaintiff) claiming under Mrs. Fisher (Bird) from setting up whatever title she had to the property.</p> <p>4. The plaintiff having shown that the title to the land vested in John Fisher in 1873, and the uncontradicted testimony being that the said Fisher title vested in defendants, and that they were the owners of the said lands at the time of the alleged trespass, the verdict must be for the defendants.</p> <p>A. I decline to charge as requested in this point. The defendants stand where John Fisher stood; they have the rights of John Fisher, and what John Fisher had the right to do in respect to this property they had the right to do, and no more; they acquired his right, title and interest; and under that they make their defense. We have already said to you that for 10 acres, wheresoever they lie, John Fisher was trustee for his sister, who died in 1879. She at that time was living, and he took it as trustee for her; of course when she died, the residue which she had descended to her children, provided she had not bargained it away or contracted to its being bargained away, as already stated.</p> <p>5. That the plaintiff has shown no such title or possession as entitles him to recover.</p> <p>A. This point is refused in what we have already said; we have explained our views on that subject.</p> <p>6. If the court decline to affirm the above, then they are respectfully requested to charge the jury that the 10 acres of land mentioned in the fifth section of the Henry Fisher will is required to be located at the northeast corner of the Henry Fisher survey, and not taken from the east end of said tract as •claimed by the plaintiff, and should be located in the northeast corner, the course of the eastern line of said tract for the distance of 21 perches and thence by a line parallel with the northern line of said tract, a sufficient distance to make 10 acres.</p> <p>A. I decline to charge as requested in this point, and ! submit to the jury the question upon the drafts and the evidence before the court of the location of the line of the 10 acres, on the Henry Fisher tract. Yon know by drafts what is called for on the east end of the tract, and you have seen and will have before you the shape of the Henry Fisher tract, at the east end along the narrow piece of land. It is claimed by the defendants that this division would split the east end which is 40 rods wide into two parts, making it 41 or 42; that the division line ought to be in the center so as to be within the meaning of the will as to the northeast corner.</p> <p>You are to take into consideration all the circumstances,— among other things, the shape of the tract, whether the meaning •of it would be that it should be so as to include nothing but the northeast corner, and so run far enough down to make 10 acres, or whether the language of the testator means in effect off the east end of the tract, or whether it is confined to that particular corner; I do not think that this is a matter of law for the court to determine under the evidence; especially, as it is shown before you that the grantee, James Bird, never laid off the 10 acres in the way that is now claimed by the defendants, but laid it off many years ago from the east end of the tract, and, so far as appears, claimed that end of the tract down to the present time; and, if the east end of the tract was to be divided so as to make the 10 acres lie upon the one side, the one half, whatever the course or location would be, then tbe proper way is to say that what lies on one side of the middle line, between this and the northeast corner on that side, the plaintiff is entitled to, and to no other portion of the land.</p> <p>The court charged the jury as follows:</p> <p>“In 1824 an act of assembly was passed, which provides that ‘in all cases where any person or persons shall cut down or fell, or employ any person or persons to cut down or fell, any timber tree or trees g'rowing upon the land of another, without the 'consent of the owner thereof, he or they so offending shall he liable to pay to such owner double the value of such tree or trees so cut down or felled, or, in case of conversion thereof to the use of such offender or offenders, triple the value thereof.’</p> <p>“The action which we are now trying is brought under that act of assembly; the plaintiff, Bird, declares that timber was cut upon his land contrary to the provisions of that act. Whether the defendants knew that they were trespassing, if they were, is immaterial; the law was unquestionably intended to preserve the timber in the then more sparsely settled portions of the commonwealth, where it might be somewhat difficult to ascertain who cut the timber; and hence, rather in the nature of a penalty, damage was given beyond the value for the purpose of preventing the depredations of marauders; so that the act makes no distinction between those who cut knowingly and those who do not; if they cut upon the land of another and without his consent, it is a trespass for which the owner can recover under this act of assembly more or less, according to what the trespasser did upon the ground. If he merely felled the timber, double damages were given; if he felled it and converted it to his own use (which properly means carried it away), he incurred the penalty of triple damages, partly by way of compensation to the owner and partly to prevent trespasses.</p> <p>“By this same act, if the trespasser knew that he was cutting timber on the land of another, he might be indicted; but that would make no difference with the right of the owner of the land to recover for the damages which he sustained.</p> <p>“The plaintiff here, seeking to establish title to the land on which the alleged trespass was committed, produced in evidence a warrant to Henry Fisher for a tract of land described therein, dated on the 8th day of September, 1824. In pursuance of that warrant, the deputy surveyor laid off 93 aeres and some perches,, and returned the survey to the land office. This of itself did! not confer a legal title; that passes from the commonwealth only when it has given its deed, called a patent; but applying for a. warrant for a quantity of land, having that land surveyed and returned to the land office, and paying the purchase money,, gives an equitable title, which descends to the heirs of the warrantee.</p> <p>“Henry Fisher died on the 11th day of September, 1824,, having first made his will, the second clause of which gives to< Caleb and John, sons of the testator, 'All that certain messuage’ etc., describing it, 'with all the appurtenances thereto belonging or in anywise appertaining; to have and to hold to the-said Caleb and John Fisher, their heirs and assigns forever, as tenants in common, and not as joint tenants’ — subject to their making certain payments. That was actually conveying the fee; simple to the land therein described.</p> <p>“In the fifth clause of the will, the testator provides: 'I do> give and devise to my daughter Sarah, intermarried with James-Bird, and to her heirs and assigns forever, all that certain messuage and tract of land, with the appurtenances thereto belonging, situate in Catawissa township, Columbia county, containing., 92 acres and 46 perches, be the same more or less; also 10 acres of woodland, to be taken off the northeast corner of the 90-acre-tract which is devised to Caleb and John Fisher, and adjoining the Philip Mettler.’ The larger tract is given to the sons and to the widow (daughter) and her heirs as-strongly as language could provide, and then follows the clause-that raises the question here, 'and also 10 acres of woodland to-be taken off the northeast corner.’</p> <p>' “It is claimed by counsel for the defendants that the clause-giving the whole tract to the two sons in fee is inconsistent with the clause giving a part of the same tract to Sarah, and that the latter has not the same strength, not having the words, ‘heirs and assigns forever’ following it, and that therefore there was-but a life, estate in Sarah, the daughter; that the two clauses are, upon any other interpretation, irreconcilable, or that there-is no way by which this will can be construed so as to make both these clauses consistent and operative.</p> <p>“It is the duty of the courts, in construing wills, to carry out if possible the intention of the testator; and that intention is to be gathered from the whole will and from all its parts, and if necessary, there may be a transposition of words in order to accomplish that matter, the carrying ont of the intention of the testator; bnt where it is found, after proper endeavor, impossible to reconcile two clauses of a will, then the rule applies that a latter clause prevails over a former clause, just as the last will and testament must prevail over previous wills.</p> <p>["Where the latter part of a will varies from the former part, so that both cannot stand together, then the latter, as being the last thought the testator had upon the subject, controls. I therefore instruct you that the 10 acres off the northeast corner was by the will of her father given to Sarah; when he died in 1824: the 10 acres became hers absolutely, in fee. I come to this conclusion from the phraseology of the will, which, after giving the 90 acres, then says, 'also the 10 acres,’ mentioning where it lies. The word 'also,’ as there used, means, 'in like manner,’ 'I give her the 10 acres as I have given her the 90 acres;’ that is the meaning of the word 'also,’ as I construe it, the same estate in the 10 acres as was given in the 90 acres. The 90 acres were given to her and her heirs and assigns forever.]</p> <p>"[Matters remained in that way down to 1837, when an article of agreement was entered into, purporting to be signed by the heirs of James Bird, the husband of Sarah Fisher, who had died in September, the exact date, I think, is not in evidence. The parties to this agreement called themselves his heirs; they were not his heirs as to this land; they were his heirs as sons and daughters, and therefore his heirs of whatever interest he had in this land; but he had no interest in this land, because the fact that he was the husband of Sarah, which made him tenant by the curtesy, gave him only a life estate; and when he died nothing descended from him to his heirs.]</p> <p>"[That article of agreement is signed by three sons, I think, and three daughters of Mas. Sarah Bird; we allowed it to be read in evidence, because there were upon it the names of parties who were competent to enter into such a contract; but these three married women could not dispose of their land except in the way pointed out by law, — namely, by a writing executed jointly with the husband, and separately acknowledged by the wife, examined apart by the magistrate. That was not done in this case; therefore their signatures to the paper are absolutely void, and it passed no title whatever to James Bird.</p> <p>“A contract signed at that time by the brothers alone would have bound them, and would have conveyed an equitable right, if they at that time had any title to the land; but their mother was living and they were not heirs of their mother while she lived. But Sarah Bird, who owned the land, signed that paper along with the others; her name, I believe, is not in the body of the instrument; but she signed it along with them, knowing that the land was to be sold to James Bird for the consideration mentioned in the deed. By assenting to the sale to be made by her daughters and her sons to' her son James Bird, she acquiesced in the transfer; and although her children at that time had no title in the land whatever, she had; and if she agreed that they might make sale for valuable consideration, she had the right to do so, and, doing so, bound herself; and if she was bound, when she died her heirs were bound by her act in her lifetime; so that by her assent and acquiescence and joining in the contract by which this land was conveyed to James Bird, he acquired an equitable title to it, such a title as any man acquires when he enters into a contract for the purchase of land for the consideration named; and when, from the terms employed, it is fair to conclude that he has the right of possession, he sustains any loss that accrues to the property bought.</p> <p>“If one should purchase a dwelling-house by contract with the former owner, and if before deed made, and before the purchaser paid, the house should burn' down, it is the loss of the vendee and not of the vendor. So in the purchase of timber land; if one has acquired an equitable title and bound himself to pay, and a trespass is committed upon the land, he is the owner to such axt extent as to entitle him to maintain trespass under the act of 1824; he sustains the loss, and ought to have the remedy which the law gives to redress the wrong committed upon him. Mere possession would not of itself entitle a claimant to recover against a trespasser under this statute; one having the possession or (and) the immediate right of possession can maintain trespass for any injury he has sustained. Cutting down timber is an injury to the inheritance, and he who has the equitable title may maintain trespass.]</p> <p>“Counsel for the defendants request us to charge:</p> <p>[The court here read and anewei*ed defendants’ points and then continued.]</p> <p>“If the cutting of timber trees was upon the 10 acres at the east end of the tract, and if that was the land devised, then of course you will have to ascertain how much timber was cut upon that portion; if, on the other hand, it is divided so as to split the tract in two, then you have the difficult task of ascertaining how much timber was cut on the one side and how much on the other. If you say the trees in question were cut on the 10 acres, taking them off the east end, you will go through the evidence to see how many trees or how much timber was taken from that quarter; if you come to the conclusion that the tract should be divided so as to make the 10 acres in the northeast corner, then you will have to ascertain, as best you can, the value of the trees cut off that. But where a party seeking to recover damages fails in his evidence to show the amount of the injury that was done him, the jury have no right to guess at how much it would be.</p> <p>“Much has been said in the course of this trial in regard to the possession of this land. It is unseated land, uncultivated land. The only possession that has been had, so far as the evidence goes to show, is the occasional (not every year) taking some timber for wood, or ties, or something else, in the course of a long period of time, off this tract. There is no evidence that either party has gained title by the statute of limitations, by peaceable, notorious, hostile possession, uninterrupted for the period of twenty-one years.</p> <p>“The occasional coming for fire wood does not give title by possession, however long continued, at intervals, these trespasses may be; but if the person has an equitable title, and if the land has been taxed to him and he has for a long period of years paid the taxes, or those under whom he claims have for a long period of time paid all the taxes assessed against him, this payment of taxes, in connection with the equitable title, is worthy •of some consideration on account of his right to the land and his possession of the property. While the title to the land of another cannot be gained by simply paying taxes upon it, yet, if (there is payment of taxes, and the claimant exercises acts of ownership over the land, the fact of the payment of taxes may be taken into consideration in deciding the question of his possession.</p> <p>“Something also has been said about the sale for the taxes of 1814 and 1815. The evidence shows an assessment of taxes during these years, and a sale in 1876 to John Fisher, and it is claimed that that sale covered this land. In order to make a valid sale of unseated lands, there must be a valid assessment made by competent authority, and the taxes must have remained unpaid for one whole year before the sale. If the taxes were paid by the claimant of the land, a sale for taxes would not be valid, because the taxes were paid; a sale of the land where the taxes are paid is simply void, carries no title.</p> <p>“Did James Bird pay the taxes for the years 1874 and 1875, the sale for which was made in 1876 ? He testifies that his father paid the taxes before; and that he, although he took no receipt, paid taxes for these later years, for years before and some after-wards, and all the time down to 1886; that being the case, the fax sale in 1876 was invalid and passed no title to John Fisher. The case stands then upon the title that he held before that time. I believe these are all the questions raised relating to the title.</p> <p>“You turn your attention to the question whether the defendants either cut, or procured to be cut, timber upon this land. They claim to be the owners of the property through their purchase from John Fisher. It seems that they employed a man by the name of Shields to cut timber on that tract; and evidence has been given, here (which you will call to mind) as to what these defendants did do in reference to cutting that timber. If they employed Shields to cut the timber, and knew and understood that he was cutting this timber on these ten acres, and if they employed men to haul off the timber that was cut, the cutting would be for their benefit and assented to by them; it would make them trespassers. If they employed Shields to cut the timber on a particular portion of the land, as a contractor, and restricted him to their land, and he cut over upon somebody else’s, they would not be responsible; but, if they acquiesced in his act, drew off the lumber, they would be responsible for the acts of one who was their agent in that respect. If you find that the plaintiff is entitled to recover, the next question is the amount. You will have, I presume, from the counsel, a statement of the number and size of the trees alleged to have been cut and the quantity of lumber in them and the number of ties taken; it will be impossible for you to remember all these items without some such memorandum.</p> <p>“The price of timber land is not the sole test of the value of the timber upon it, although it is worthy of your consideration. The value of the trees, where they stood when they were cut down, as standing trees, is the question, not as trees felled and the bark peeled off and carried away and sold; the law gives the value of the trees as trees, not as manufactured lumber or anything else, but as trees as they stood there on that ground. In ascertaining that, the character and quality of the timber, the size of the trees, the amount of lumber that was in them, what trees of that size and location would sell for, may be considered.</p> <p>“If you believe the testimony on the part of the defendants, there is nothing in their acts or conduct that goes to show that they intended anything more than pursuing what they believed to be their rights; but I have already instructed you that this matters not, so far as the plaintiff is concerned, whether they acted sincerely or otherwise. It is not a case for vindictive damages ; you have no right to go beyond the value of these trees, no matter what the conduct of these defendants was. In estimating the damages, you should be just to both parties, ascertaining the value of the timber cut.</p> <p>“If you find for the defendants, the verdict should be, generally, Tor the defendants.’ If you find that a portion of the property was cut down and was left on the ground, not converted, you will give double damages for that portion; but for what was converted, if any, triple damages; designating how much you find of double damages, and how much of triple damages; this may be difficult for you to ascertain, but you have to take the case where the parties leave it.. As I understand it, at the time of bringing this suit, a good deal of timber beyond a certain size still lay upon the ground where it was cut, and has been taken away by these defendants since suit brought and within the last year. The plaintiff is restricted to damages sustained up to the time of bringing this suit in October, 1882, and cannot recover for anything this side of that; the rights of the parties are to be determined as of that date; whatever has been taken away since suit brought is not a subject for damages here; for the timber that lay there on the ground the plaintiff could have maintained trover, provided he has a right to this land. You may find, in looking at the testimony, that the witnesses upon the one side or upon the other put the damages beyond any. reasonable amount, beyond anything that you ever heard of in the way of damages for timber cutting; or you may find them too low in their estimates; the facts are for you; and between tbe evidence that is given on the one side and the other yon must endeavor to get at such a medium as will do justice between these parties,- giving due consideration to all the evidence in the case. You have no right to compute any interest.”</p> <p>The jury returned the following verdict:</p> <p>“We find a verdict for the plaintiff for $625.10.</p> <p>447 oak at 70cts., $312.90 single damage.</p> <p>223 chestnut at $140 $312.20 double damage.</p> <p>$625.10.”</p> <p>Counsel for plaintiff moved the court to double the $312.90, single damage for oak; and increase the $312.20, double damage for chestnut to such an amount as would be treble the amount of single damage.</p> <p>By the Court:</p> <p>The declaration alleges the cutting of timber by the defendants on lands of the plaintiff and converting them to their use. The timber shown on the trial to have been cut was oak and chestnut, all that was cut was not converted by the defendants. . . .</p> <p>If the first words (of the verdict) are to be taken as the ■whole verdict, this motion ought not to prevail. It is manifest, however, that the jury did not so intend. Whether the verdict is strictly according to the evidence on the trial is not now the question, as neither party has asked for a new trial. It must now be construed by itself. And in order that it be rightly understood, or rather in order that it may be construed so as to be consistent with itself, the several parts must be considered with the whole.</p> <p>When a jury in such a case say that the damage which they find is double damage, the court has no right to double the amount so found. In this case the item, 223 chestnut, $1.40, $312.20, double damage, means just what it says, that the value and aggregate as put down are found to be double damage. Suppose the jury in any case under the statute should say in their verdict that they find for the plaintiff a named sum treble damages; it would be error for the court to enter judgment for treble the amount so found.</p> <p>The verdict declares that the damages have been already trebled by the jury. The same reasoning applies with equal force when the verdict finds a sum said by them to be double damage. If the jury intend in such a case that the amount shall be doubled by the court, that intention must be indicated in some other manner than by finding that the double damage is so much. When a sum is found by the jury as “single damage,” they already show that they have neither doubled nor trebled the amount of damage which they have found for the plaintiff, leaving the increase for the action of the court, as shall be in accordance with the law.</p> <p>Thus construed, this verdict is consistent with itself throughout, and means just this: We find for the plaintiff a verdict of $625.10, made up in this $312.90, damages subject to increase by the court and $312.20 damages which we find to be double the actual damages; total, $625.10, subject as aforesaid. Whether the jury so intended is to be gathered from their written verdict, and not from what the court might have found as fact under the evidence.</p> <p>In view of the fact that some of the oak cut was shown to have been converted by the defendants and some was not, we concluded that the counsel for the plaintiff, in view of the difficulty of ascertaining the proportions of each, have moved the court to double damages found for the oak. The motion to that extent we are of opinion ought to be granted, but as to chestnut I am of opinion that the amount of damages fixed by the jury cannot be either doubled or trebled by the court.</p> <p>Double damages for the oak, $625.80.</p> <p>Damages for the chestnut as</p> <p>found by the jury, 312.20.</p> <p>Interest from date of verdict. ■</p> <p>$938.00.</p> <p>The assignments of error specified the admission of evidence as above noted, the answers to defendants’ points, the portion of the charge inclosed in brackets, and the action of the court in increasing the amount of the verdict rendered by the jury.</p> <p>Under the pleadings in the cage, the plaintiff was bound to show that he was the owner of the land at the time the timber was cut, to enable him to recover. Purdon’s Digest, last ed. p. 1635, § 2; Tammany v. Whittaker, 4 Watts, 221; Welsh v. Anthony, 16 Pa. 255, 256.</p> <p>By the second section of the will of Henry Pisher, the land was devised in fee, unto Caleb and John Pisher; and as the will was made and probated prior to the act of April 8, 1833, Sarah Bird only took a life estate under the fifth section.</p> <p>The court was in error in changing the verdict. Hughes v. ■Stevens, 36 Pa. 320; Newcomb v. Butterfield, 8 Johns. 342; Campbell v. Pinne.y, 3 Watts, 84; Clark v. Sargeant, 112 Pa. 16, 5 Atl. 44.</p>

July Term, 1886, No. 133, E. D. All the Judges present. Error to the Common Pleas of Northampton County to review a judgment for plaintiff, for want of a sufficient affidavit of defense in an action of sci. fa. to revive a judgment. Affirmed. At the trial in the court helow, before Schuyler, P. J., the following facts appeared: This was a sci. fa. by William F. Detwiller, to revive a judgment against Samuel E. Weber and Judith his wife, for the alleged debt of the wife.

January Term, 1886, No. 276, E. D., before Mercur, Ch. ■J., Gordon, Trunkey, Sterrett, and Green, JJ. Error to •Common Pleas No. 4 of Philadelphia County to review a judgment on a verdict for the plaintiffs in an action of assumpsit. At the trial before Wilson, J., the following facts appeared; Sarah McGoldrick died at Orange, New Jersey, about November 3, 1881, intestate, and leaving five or six collateral heirs.

<p>July Term, 1886, No. 194, E. D., before Mercur, Ob. J., Gordon, Paxson, Trunkev, Sterrett, and Green, JJ. Appeal from a decree of tlie Orphans’ Oourt of Philadelphia County in tbe Estate of John E. Jackson, deceased.</p> <p>The facts as they appeared at the audit of the first account of Jacob I). ITeft, administrator of John F. Jackson, deceased, before Ashman, J., were as follows:</p> <p>The decedent died May 16, 1882, intestate, and letters of administration on his estate were granted to the accountant May 23, 1882. His estate was insolvent.</p> <p>At the audit the following claims were presented:</p> <p>E. K. Lemont & Son, on note and bank accounts, with interest to date of death, $533; Help & Groff, on book account, with interest to date of death, $164.59.</p> <p>These creditors claimed to come in on an equal footing as creditors of the estate with the accountant, who was also a creditor, and to whose claim of $2,525, with interest, the proceeds of the sale of the personal estate of the decedent, amounting to $2,530, had been appropriated by the accountant.</p> <p>The decedent on September 7, 1879, borrowed from the claimant $2,000 and with the money purchased the stock and fixtures of a livery stable. Upon the day of the purchase he executed and delivered to the claimant, on collateral security, a bill of sale of the articles purchased. Hecedent went into the possession of the premises and carried on business there in his own name until his death. The claimant afterwards loaned him the further sum of $525, for which the decedent gave his promissory note. The latter was still unpaid at the time of his death. On the day the decedent died, the claimant entered upon the premises by virtue of the bill of sale; and after continuing the business as his own for several months, he sold out for $2,530. The actual receipts of the business during his charge over the expenditures for conducting it showed a gain of $37.07.</p> <p>The auditing judge, in his adjudication, said:</p> <p>■ “The accountant, as creditor, certainly had the right at anytime during the life of the debtor to take possession of the property which was the subject of the bill of sale; and the right would not seem to have been taken away by the death of the latter; if the instrument had been a mortgage, which is a conditional sale, and had provided for the delivery of the property within a given time, it would have bound even creditors if possession had been taken under it before process by creditors had been taken out. Boyle v. Rankin, 22 Pa. 171.</p> <p>“The accountant insists that he is not to be charged with their value as assets of the decedent’s estate, but sets up a title in himself. The auditing judge is of opinion that this title would prevail as against volunteers; and that the accountant might retain the goods or their proceeds in an amount sufficient to satisfy his debts, when the contending parties are legatees or next of kin. But he is entitled to no preference over other creditors. He permitted the decedent to act as owner and to obtain credit upon the faith of an ostensible ownership. He will therefore be charged with the proceeds of sale, and will prorate with the claimants in the fund for distribution. See Boynton v. Isaacs, 10 W. N. C. 190; .Martin v. Mathiot, 14 Serg. & R. 214, 16 Am. Dec. 491; Crawford v. Davis, 99 Pa. 576.</p> <p>“The accountant showed that certain book debts which remained open on the books of the decedent were uncollectible, and that efforts had been made to secure their payment. The demand to surcharge him with their amount and to disallow his commission as administrator is refused.</p> <p>“The account, vouchers having been produced for its credits, exhibited a balance due by the estate to the accountant of $75.93.</p> <p>“Against which nrast be surcharged commissions improperly claimed on $2,530, which sum was charged in the debits, but were retained by accountant in payment of his own claim, and was not carried into the totals.”</p> <p>Exceptions to the adjudication were filed by the accountant because it surcharged the accountant with the sum realized from the property pledged to him by the decedent for his debt, viz.., $2,530, and because it disallowed commissions upon the sum of $2,530, although charging the accountant with said sum.</p> <p>Hpon dismissing the exceptions and confirming the account, Penrose, J., delivered the following opinion:</p> <p>It is conceded that the bill of sale under which the accountant claims was given to secure moneys loaned by him to the decedent ; his rights, therefore, were simply those of a mortgagee, the form of the transaction being immaterial. Sper'ing’s Appeal, 60 Pa. 199.</p> <p>That possession on the part of a mortgagee is essential to the validity of his lien as against other creditors where the subject of the mortgage is personal property capable of actual, corporeal occupation, is too wTell established to require the citation of authority; and that the death of the debtor gives to general credit- or's the right to deny the validity of such a mortgage, when possession has not been taken in his lifetime, was expressly decided in Eater v. Steinruck, 40 Pa. 501.</p> <p>“By the death of the mortgagor,” it was there said, “his personal estate in possession passed into the custody of the law for administration, and the mortgagee had no right to undertake to administer any part of it for the satisfaction of his own debt. Even if there is enough to satisfy all the creditors, he cannot decide that question, but must leave it to the decision of the orphans’ court. If there is not enough, his mortgage without possession became void as to creditors by the death of his debtor, for then the law took hold of the estate for the benefit of all. If there is enough, he cannot suffer much by waiting the due course of administration.”</p> <p>In that case an action of trover by the administrator against the mortgagee was sustained, and it was held that the debt intended to be secured by the mortgage could not be set off. The fact that the default, which, under the terms of the mortgage, first gave the right to take possession, did not occur until after the mortgagor’s death, is not material. The point decided was that unless the lien is complete at the death of the debtor, priority cannot be claimed over other general creditors. See also Merchants’ Bank v. Shouse, 102 Pa. 488.</p> <p>It is true that in Collins’s Appeal, 10 Y Pa. 590, 52 Am. Rep. 4Y9, it was held (Clark, J., dissenting) that the principle did not apply in favor of a decedent’s general creditors in the case of a pledge of an intangible interest, incapable of delivery or manual occupancy, or of an expectancy to come into existence after the contract of pledge is made, and when the personal effort of the pledgeor is necessary, both to its subsequent existence and its actual maintenance. But this was not because the creditors of the decedent had only the rights of the general creditors of a living debtor, but simply because of the character of the pledge.</p> <p>The same principle was held, therefore, to apply as against execution creditors, in Wallace’s Appeal, 104 Pa. 559.</p> <p>“The general rule,” it was said in that case, “that possession of the thing pledged must be taken by the pledgee, to make the pledge valid against the creditors of the pledgeor, was recognized in Collins’s Appeal, and the pledge of an interest in expectancy, ■or of an intangible interest, under certain circumstances, was considered an exception.”</p> <p>“Whether,” it was added, “in Pennsylvania there can be any other exception need not now be determined.” Certainly the present case furnishes no ground for another exception, and nothing short of the complete overthrow of the general principle itself can sustain the claim of priority on the part of this mort .gagee.</p> <p>There is nothing in the doctrine of McClintock’s Appeal, 29 Pa. 360, or of Yorks’s Appeal, 110 Pa. 69, 1 Cent. Pep. 354, '659, 1 Atl. 162, 2 Atl. 65, which, as we understand those cases, affects the question. Yorks’s Appeal simply decides that credit•ors of a decedent do not become the equitable owners of the personal estate of their debtor so as to prevent the plea of the statute of limitations as against their debts; and there is no suggestion that while the debt continues the personal estate is not held, in the regular course of administration, subject to the duty of the administrator to see to its payment. To this extent the .administrator is a trustee for the general creditors, although his ■obligation to them ceases, of course, when the debt is paid or when it has lost, by operation of law, the right of enforcement. ’The act of assembly declares that after payment of certain preferred debts all others shall come in on a footing of equality. Nothing less than a lien perfected during the life of the debtor ■can give a right of priority as between general creditors.</p> <p>The auditing judge has found, and the account shows, that immediately after selling the property covered by his bill of sale the accountant appropriated the proceeds for the payment of his own debt. In so doing he was acting in hostility to the rights of other creditors; and, so far as this portion of the estate was concerned, it was entirely proper to disallow his commissions as against such creditors. Greenfield’s Estate, 24 Pa. 232.</p> <p>The proceeds of sale, $2,530, were all received in or prior to ■October, 1882; and the account, which was not filed until March, 1886, contains no debit of interest. It is now asked, although the claim was not made before the auditing judge, that the accountant be surcharged with interest at the rate of 6 per cent. Had the money been deposited during the period preceding the filing of the account, with the other funds of the estate, the mere omission to invest or make it productive might, perhaps, have been excused, or a lower rate than 6 per cent adopted; but as it was applied to the payment of a debt to himself, and the accountant has thus had the use of it ever since, it is clear that he is chargeable with interest at the legal rate. The adjudication will-be amended by adding to the balance for distribution interest upon the above sum from October —, 1882; and with this modification the exceptions are dismissed.</p> <p>The assignments of error specified the action of the court in dismissing the exceptions to the adjudication, and in decreeing-(in its opinion dismissing the exceptions) that interest should .be added to the balance for distribution, such balance, under the-opinion, including the entire proceeds of the pledged property.</p> <p>It is respectfully submitted that the lien in this present case was-complete at the- time of the death of the debtor, and that the essential and controlling distinction of fact and principle between the case of Kater v. Steinruck, 40 Pa. 501, and the present one,, arises from the condition that in the former case default had not taken place, and the right of possession was not perfect;, whereas, in the present one default was not necessary, thepledgee’s title was perfect, and he had the absolute right of possession, the pledgeor having the custody of the property only as-trustee for him, and not in any sense being in legal possession of the same. See also Collins’s Appeal, 107 Pa. 590, 52 Am. Pep.. 479.</p> <p>The disallowance of commissions to the accountant, and the-surcharging him with interest upon the proceeds of the sale of' the pledged property, were by way of punishment.</p> <p>Unless he has done something intentionally in fraud of the estate, or by which the estate was made to suffer, he certainly was entitled to his commissions, whether or not he received as pledgeethe proceeds of the pledged property.</p> <p>It was not as if he had administered first and had then taken the proceeds of the pledged property and misappropriated them to his own use; but, on the contrary, after he had possession aspledgee, he voluntarily administers on the estate, and voluntarily brings before the court the entire proceeds of all of the property which was in the custody of the decedent at his death; An examination of the long account filed by him shows the greatest possible care taken by him to bring before the court, for a just and legal distribution, every penny that could possibly be charged against him, arising out of this transaction.</p> <p>It seems to us that in place of this being bad faith and in disregard of duty, it was an instance of the exercise of the highest good faith, both to the court and to the creditors of the estate.</p> <p>In like manner, the charging him with the full rate of interest upon proceeds of this property was very severe and not warranted by the facts of the case. If he is to be deprived of what he, supposed to belong to him, and which he took in good faith,, without any intention of defrauding this estate, his loss is severe enough; and having voluntarily brought the fund into court for disposition, it is respectfully submitted that a reasonable allowance on the interest should be made to him, if the decision of the court below is to be sustained.</p> <p>Where moneys have been used by the accountant, commissions will not be allowed,, even if the employment may have inured to the benefit of the estate. Waylan’s Estate, 17 W. N. C. 376; Seguin’s Appeal* 103 Pa. 143; Eobinett’s Appeal, 36 Pa. 174; Norris’s Appeal* 71 Pa. 126.</p> <p>He is chargeable with interest as compensation for such use. Norris’s Appeal, 71 Pa. 123; Walthour v. Walthour, 2 Grant Cas. 102; Copely’s Appeal, 82 Pa. 143.</p>

<p>January Term, 1887, No. 264, E. D., before Mercur, Ch. J., Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Error to the Common Pleas of Northampton County to review a judgment on a verdict for plaintiff in an action of tresspass to recover the value of certain property and for damages for the detention of property.</p> <p>The facts sufficiently appear from the charge of the court to the jury, given below.</p> <p>The case has been twice tried. A verdict and judgment in favor of plaintiff in the first trial was reversed on appeal to this court and a new trial granted for error in the rulings of the court.</p> <p>See 18 W. N. C. 490, 4 Cent. Kep. 764, in which the facts are fully stated.</p> <p>On the second trial before Schuyler, P. J., the plaintiff, Berger, offered to prove by Edward Shafer the whole transaction between witness and himself in substance, the same as on the examination at the former trial. Objected to as incompetent. Objection overruled. Exception.</p> <p>Plaintiff presented, inter alia, the following points:</p> <p>2. A debtor may lawfully prefer one creditor to another, and if the jury believe that Mr. Shafer sold out his undertaking establishment to Berger for the purpose of preferring his wife and other creditors, even to the exclusion of Mr. Jacoby, the sale was not fraudulent for that reason.</p> <p>Ans. This is true.</p> <p>8. And even if Mr. Berger knew that the purpose of Shafer in selling out was to prefer some creditors to others, the sale is not void for that reason.</p> <p>Ans. This is true.</p> <p>4. If the jury believe that the proceeds of the sale from Shafer to Berger were paid to bona fide creditors of Shafer, then Jacoby was not defrauded; for one creditor cannot be defrauded by the payment of another, although all the property of the debtor is exhausted by such payment.</p> <p>Ans. This is true, provided you find that the sale was made upon full and valid consideration.</p> <p>5. If the jury believe that Shafer was honestly indebted to his wife, he had the right to direct her to be paid out of the proceeds of the sale of his property in preference to Jacoby or any other creditor.</p> <p>Ans. This is true.</p> <p>6. If Berger purchased the property in dispute in good faith and for a full consideration from Mr. Shafer, it was the duty of Shafer to protect and defend Berger’s title in the attachment suit before Justice Baum, and no fraud can be inferred from such defense.</p> <p>Ans. This is true.</p> <p>Defendants, inter alia, presented the following points:</p> <p>3. In determining whether the evidence shows that Berger actively participated in the fraudulent purposes of Shafer, the jury should first consider whether the fraudulent purpose of Shafer was made known to Berger, at or before the alleged sale ; and second, if they were so made known, whether he assisted Shafer in carrying them out. And if they can find that Berger took a transfer of all of Shafer’s property, knowing that Jacoby had a claim against Shafer, which he was pressing for payment, and that Shafer left Jacoby out of the list of creditorswhichwere t,o be paid out of the proceeds of the sale, that Shafer intended to prevent Jacoby getting his claim paid by suit, and that Berger, through Cope, then paid and settled with all the creditors except Jacoby, they are justified in finding that the fraud was the joint work of Berger and Shafer, and their verdict should be in favor of the defendant.</p> <p>Ans. I cannot affirm this point. "Whether or not the sale was fraudulent is to be determined from all the facts and circumstances in the case.</p> <p>6. Under the facts in this case there was not sufficient delivery of the property as against creditors; and the court should declare the sale void, and direct a verdict in favor of the defendants,</p> <p>Ans. I cannot affirm this point.</p> <p>The court is requested to declare the transaction a legal fraud, because the judgment note for $1,200, dated December 4, 1883, given by Berger to Shafer, payable in five years from date, assigned to Mrs. Shafer and not recorded, contains a clause which enabled Shafer io prevent the payment of two thirds of the purchase money for the undertaking establishment, by going into the same business again, any time within five years, and to defeat the validity of the bill of sale, dated the same day, to the extent of two thirds thereof. This was, in effect, creating a secret trust in favor of Shafer, which stamps the transaction as a fraud in law, and vitiates the pretended sale, as against creditors.</p> <p>Ans. I cannot affirm this point. The clause referred to is a circumstance to be taken into consideration with the other facts and circumstances in the cause as to whether the sale from Shafer to Berger was a bona fide sale, or otherwise.</p> <p>The court charged the jury as follows:</p> <p>■ This is an action of trespass brought by Morris Berger against Wilson D. Snyder and Cyrus Jacoby to recover damages for seizing and selling one horse, and for seizing and detaining another horse and truck wagon as the property of Edward Shafer, and which the plaintiff alleges belonged to him.</p> <p>It appears that the said Edward Shafer was the owner of an undertaker’s establishment which consisted of horses, wagons, and undertaker’s materials and the like, and that, being largely in debt, he sold the same to the plaintiff on December- 4, 1883. The property in controversy was a part of this undertaking establishment.</p> <p>The plaintiff alleges that this sale was a fair bona fide sale for the full value of the establishment, and that he had taken possession of, and had assumed control over, the property sold, under and in pursuance of a contract before the seizure made by the defendants. The defendants, on the other hand, contend that the sale was not bona fide, but was intended to defraud Cyrus Jacoby, one of the defendants, and a creditor of Edward Shafer; that, while the plaintiff was the ostensible owner, Edward Shafer continued to be the real owner of the establishment as much after the sale as before. You have heard the evidence on that subject, and all the testimony in the case, as well as the credibility of the witnesses, is submitted entirely to your determination to find the facts of the case.</p> <p>The law applicable to the facts in this case is well settled. In order to pass title to personal property, when the rights of creditors are concerned, a sale must be bona fide and for a sufficient consideration accompanied and followed by open, notorious, visible, and actual possession. The change of possession must accompany the transfer, or follow it as speedily as the nature of the case will admit.</p> <p>If the sale by Shafer to the plaintiff was not bona fide, and for a sufficient consideration, the plaintiff cannot recover. If the purchase and sale were made for the purpose of putting the property out of the reach of Cyrus Jacoby, one of Edward Shafer’s creditors, so as to prevent it from being seized and sold for Edward Shafer’s debts, the transaction was fraudulent, even though the plaintiff paid full value for the property; and he cannot recover. If, on the other hand, you find that the sale was bona fide and for a sufficient consideration, that the possession accompanied the sale, that the sale Avas not made for the purpose of hindering and delaying Cyrus Jacoby in the collection of his claim, the plaintiff may recover. If you find these facts in favor of the plaintiff, your next inquiry will be as to the amount of damages, which will be, so far as the horse sold by the defendants is concerned, the cash value of the horse at the time of the sale with interest, and, as to the horse and wagon returned by the defendants, their value to the plaintiff during the time they were detained by the defendants with interest.</p> <p>■ If the defendants acted Avantonly and maliciously in seizing the property, yon will be justified in allowing, in addition to the value of the property, what are called exemplary damages.</p> <p>If, however, you find that the sale from Shafer to Berger was not bona fide, or even if bona fide that there was no change of possession, you will have nothing to do with the question of damages, and your verdict will be for the defendants.</p> <p>Verdict and judgment were for plaintiff.</p> <p>The assignments of error specified:</p> <p>1-5. The action of the court in affirming plaintiff’s second, third, foxirth, fifth, and sixth points, thereby opening the judgment of the supreme court in the same case, in which it was held that Shafer disposed of his property with intent to defraud Jacoby, and that the finding thereof was final and conclusive.</p> <p>6 — 8. The answers to defendants’ third, sixth, and last points.</p> <p>9. The action of the court in overruling defendant’s objection to plaintiff’s offer of evidence, as above noted. .....</p> <p>Plaintiff’s second point imputes to Shafer the innocent purpose of paying his wife. The third point imputes the same thing. The fourth point imputes to him the innocent purpose of paying bona fide creditors. The fifth imputes an honest indebtedness by Shafer to his wife, and preference to her. The sixth point imputes to Shafer the duty of defending Berger’s title.</p> <p>Certainly all these points might have been properly raised and answered, if Shafer’s fraud on Jacoby had been in issue; but if that was res judicata, then the treatment of them by the court, as open, was a license to the jury to say that Jacoby was not cheated by him, that he was honestly paying his debts, — in other words, giving them leave to reverse the finding of the justice as affirmed in Jacoby v. Shafer, 105 Pa. 610, and as pronounced finally and conclusively settled in Snyder v. Berger, 18 W. N. C. 490, 4 Cent. Bep. 764.</p> <p>The action of the court in allowing Shafer to justify himself and contradict and impeach the judgment against him held to be final by Judge Stereett, in 18 W. N. C. 490, 4 Cent. Bep. 764, was error.</p> <p>Admitting that the judgment of Jacoby v. Shafer was conclusive, in this case, of the fraudulent purpose of Shafer, it is conceded that Berger may prove that he had no knowledge of Shafer’s fraudulent intent. To do this it is certainly competent for him to show that all the acts and purposes of Shafer of which Berger might have had knowledge were not fraudulent in themselves. And if they were not fraudulent, the fact that Berger was cognizant of them could not impute fraud to him. Walker v. Marine Nat. Bank, 98 Pa. 574; Covanhovan v. Hart, 21 Pa. 500, 60 Am. Dec. 57; Hhler v. Maulfair, 23 Pa. 481; Gallagher’s Appeal, 114 Pa. 353, 5 Cent. Rep. 725, 60 Am. Rep. 350, 7 Atl. 237; Wingerd v. Ballon, 95 Pa. 184.</p>

January Term, 1887, Nos. 320, 315, E. D. Certiorari to the Quarter Sessions of Northampton County to review a judgment confirming the report of viewers; and error to the Common Pleas of Northampton County to review a judgment granting a writ of alternative mandamus.

January Term, 1886, Nos. 104, 107, E. D., before Mercur, Oh. J., Paxson, Trunkev, Sterrett, Green, and Clark, JJ. Error to the Common Pleas of Carbon County to review a judgment in favor of plaintiffs in an attachment proceeding.