Volume 50 — Pennsylvania State Reports

<p>Appellate jurisdiction of Supreme Court in capital cases.— General threats, when evidence of malice on trial for murder. — Record of finding of grand jury, when sufficient.</p> <p>1. The Supreme Court have no power in capital cases to review points which were not taken in the court below nor filed of record, but are confined to exceptions taken on the trial to some question of law or evidence, or to the opinion of the court below upon a written point, which, together with the decision, must he filed of record as in civil cases.</p> <p>2. Threats made by a prisoner within an hour before the commission of the murder, that “ he would kill somebody before twenty-four hours,” are evidence of malice prepense, though they did not expressly refer to the deceased, and if he killed anybody in pursuance of such malice, it was murder in the first degree.</p> <p>3. The short entry on the docket of “true bill,” is a sufficient record of the finding of the grand jury.</p>

<p>Execution. — Decree, making distribution of money in court, conclusive as to all matters involved therein. — Effect of recital in bond of indemnity.</p> <p>1. A decree awarding money paid into court to one of several contesting execution-creditors is, if unreversed and unappealed from, conclusive that th^ party to whom the fund is awarded is, and mat the contestants are not, entitled thereto: and all matters that could have been properly litigated cannot again he examined in a collateral action, such as an action brought by the sheriff on a bond of indemnity taken from one of the contestants, on payment to him of the amount of histexecution before the return day, but which sum was paid, with the' balance oí the fund, according to the decree.</p> <p>2. A recital in an indemnity bond that the money was made at the suit of the obligor, inter alia, will not estop the sheriff from enforcing it, after he has been compelled to pay the amount received by the obligor on his writ, to the successful execution-creditor.</p>

<p>Accord and satisfaction as between corporation and stockholder, discussed and sustained•.</p> <p>1. Where a stockholder in a building association, under resolution of the association permitting borrowers to withdraw on the payment of a stipulated amount, the stock to be then “ withdrawn and cancelled,” withdrew, paid off his loans and stock which was then marked on the books as “ cancelled” and “ withdrawn Held, that the company could not afterwards recover for dues which subsequently accrued thereon.</p> <p>2. The position of the parties was that of debtor and creditor: and after an acceptance of the terms of the resolution, payment by the debtor of the sums found thereby to be due, the new contract was executed, and a case of accord and satisfaction made out.</p>

<p>What contracts to pay the debt of another are within the Statute of Frauds. — Gases relative thereto discussed and classified.</p> <p>Where a majority of the directors of a corporation transferred part of their stock and resigned as directors that their transferrees mightpe elected in their stead, and have control of the affairs of the company, in consideration, as was alleged, of their verbal promise to pay all the debts; and after such transfer and election, but a small portion of the debts was paid, in consequence whereof the corporate property was sold by the sheriff, and a large part of the indebtedness left unpaid and lost, including a debt due by the company to one of the original directors and an alleged promissee: in an action by him, to recover therefor, against the promissors, it was Held, that the promise of the defendants was within the Statute of Frauds, and that the plaintiff could not recover.</p>

<p> Conveyance of real estate to children, when not fraudulent and void as to subsequent creditors. </p> <p>1. A conveyance of real estate by a father to his sons in consideration of their agreement to pay his debts, is not fraudulent and void as to his future creditors: and where the debts amounted to the full value of the property purchased, the deed is not voluntary but for a valuable consideration.</p> <p>2. Where, after the conveyance, the father retired from business, went to Europe, returned, and two years after the date of the deed, again commenced as a partner in another firm which subsequently failed; in an action of ejectment by a creditor to recover the real estate thus previously conveyed, which he had purchased at sheriff's sale as the property of the father: B.eld, that the mortgages given by the father, after the date of the deed, upon the property, were not admissible in evidence on the part of the plaintiff as proof of ownership in the grantor, where there was no evidence of fraud or collusion.</p>

<p>Corporations. — Measure of damages for refusing to permit a transfer of . stock. — Power of attorney to transfer, valid, though executed in blank.</p> <p>1. In an action against an association for refusing to permit a transfer of stock, the measure of damages is its actual value at the time of the refusal to transfer.</p> <p>2. The delivery by an owner of stock of a power of attorney to transfer, executed in blank, with the certificates, is evidence of an implied authority to fill up the power with the name of an attorney to make the transfer.</p>

<p>Life insurance. — Policy taken out by insolvent debtor and assigned to wife, fraudulent as to creditors.</p> <p>1. The assignment of policies of life insurance by a debtor who was insolvent when insured, in trust for the benefit of his wife, is fraudulent and void as against creditors.</p> <p>2. But policies of insurance effected without fraud directly and on their face for the benefit of the wife, and payable to her, are not to be held fraudulent as to creditors.</p>

<p>Right of attorney to hind client in case stated. — Liability of agent on personal contract. — ■ What contracts are within the Statute of Frauds.</p> <p>1. Semble, that an attorney at law has authority to bind his client by stating a case for the judgment of the court.</p> <p>2. Where, after a contract made by G. with a lumbering firm to cut saw-logs on their land, and a sub-contract by him to K. & Brother, a new contract was entered into between the K/s., G-., and W. & Sons, who were the general agents of the firm, but did not sign the contract as such, — whereby it was stipulated that the K/s should go on with their work, and that W. & Sons should pay according to the sub-contract rate, except so far as G. himself should pay them out of the sum coming to him under the original contract. After completion of the work by the K/s, and suit brought by them against W. & Sons for the balance due, which was admitted in a case stated by the attorneys of the parties, Held, That as the defendants contracted to pay personally, and not as agents, out of money furnished by their principals, they were personally liable, and that the entry of judgment by the court on the case stated was not error.</p> <p>3. The undertaking on the part of the defendants was original, and therefore not within the Statute of Frauds.</p>

<p>Equity. — Bill to enforce performance of public duties by a corporation, not maintainable at suit of private party.</p> <p>1. A bill in equity to enforce the performance of public duties by a corporation, cannot be maintained by a private party in the absence of a special right or authority.</p> <p>2. Therefore, where the slackwater navigation of the Lehigh Coal and Navigation Company, with dams, locks, and other devices, were damaged, broken, and swept away by the flood of the 4th of June 1862, it was held, that a bill in equity could not be maintained by another company, to enjoin the respondents from neglecting to repair and put in operation their navigation; and that complainants had no right to a decree compensating them for any damages suffered as incident to the non-repair.</p> <p>3. Semble, that a bill for an injunction, sued out on the part of the Commonwealth by the attorney-general, would lie against the respondents, to compel them to observe their charter obligations.</p>

<p>Money charged on land during life of widow is personalty, and payable to administrator of deceased heir.</p> <p>■Where, on partition, the interest in the valuation money of the real estate of a decedent, payable at the death of the widow, was secured to a married daughter by recognisance, and after the death of her husband, and subsequently, of the widow, the daughter died also, leaving an only daughter, who afterwards died intestate and without issue, but leaving a husband, who also died shortly after; Held, that the interest in the dower fund passed, as personalty, to his personal representatives: and that .the heirs or next of kin of the original cognisee had no interest therein.</p>

<p>Creation of estate in fee by devise. — Application of the rule in Shelley’s Case to devisee for life, with remainder over to the “ right heirs” of first taker.</p> <p>1. The presumption arising from the use of technical words of limitation in a will is of an intention that the remainder-men shall take by descent, and not as purchasers.</p> <p>2. Although words of distributive modification with words of limitation added, are in England held to be sufficient to overcome the primary meaning of the word “ heirs,” and convert it into a word of purchase, descriptive of individuals, the reason for the rule does not exist in Pennsylvania, except when the remainder is limited to the “ heirs of the body,” and when tne descent is therefore to the heir at common law in severalty.</p> <p>3. The use of the words “right heirs” is not repugnant to an intent that they shall take by descent, if the intention that they should take as heirs be manifest.</p> <p>4. Where a testator gave property to his nephew in fee, and in a codicil reciting the previous gift in fee simple, revoked so much of it as gave the property in fee, and instead thereof devised and bequeathed it to trustees for the use of his nephew for and during his natural life, with a power of appointment by will to such child or children, grandchild or grandchildren, as the tenant for life might direct; and in default of appointment ordered the remainder to be equally divided among the right heirs of his said nephew, to them, their heirs, executors, administrators, and assigns for ever; Held, That the gift of the life estate and remainder were within the rule in Shelley’s-Case, and that the nephew of the testator took an estate in fee simple.</p>

This was a feigned issue, directed by the court below, to try the validity of a judgment for $1500, in favour of Elijah Martin, in trust for Lydia Haldeman, against Isaac Haldeman, in which Margaret Gricker and Jacob Wickline, administrators of Solomon Gricker, deceased, were plaintiffs, and Elijah Martin was defendant.

This, was an appeal by Levi Nice from the decree of the court below in the matter of the petition of Amanda James, praying for a citation to said Levi Nice, requiring him to convey to hor certain real estate which he claimed to hold in trust for her under the will of Mary Dugan, deceased.

This was an appeal by William R. Speer, John Devinny, C. C. Davis, and others, from the decree of the court below dismissing a bill in equity filed by them against the school directors, burgess, and town council of Blairsyille.

This was an appeal by Rebecca Graver, Mary Kafroth, and Eianna Carpenter, from the decree of the Common Pleas of Lancaster county confirming the report of the auditor on the account of Henry Graybill, trustee of Samuel and Rebecca Good.

This was an action of debt by John Smith, administrator of Esther Bartholomew, deceased, against Matthew Bartholomew and Charles Edwards, in which the following case was stated for the opinion of the court:— Matthew Bartholomew, one of the above defendants, was administrator of the estate of David Herr, late of Strasburg township, deceased, and as such administrator received into his hands the estate of said deceased.

This was an appeal by the defendants, Jay Cooke & Co., from the settlement, made June 5th 1862, by the auditor-general and state… Held: on full consideration, that interest could not be recovered, but ultimately dismissed the proceeding, on the ground that the penalty imposed could not be collected by a settlement at the department. “We again decided in The Commonwealth v. Drexel, under this same statute, that the settlement would not carry interest, but that ruling,…

<p>Taxation. — Farms taxable at locality of mansion-house, where divided by township, borough, or city line.</p> <p>1. A farm divided by a township, borough, or city line, is taxable where the mansion-house is located.</p> <p>2. Hence, where the whole of a farm, with the mansion-house, was situated in a township, with the exception of a small portion lying within the line of an adjoining city, the whole farm was held taxable in the township, and that the assessor of the city had no power to assess that portion within its limits.</p>

This was an action of replevin by Samuel Humphry against A. T. Green, for a bay- mare, in which the defendant claimed property and gave bond to the sheriff. To a declaration in the usual form the defendant pleaded non eepit. The material facts of the case were these:— The plaintiff below, Samuel Humphry, about the 10th of Jume 1864, sold to a stranger calling himself Wallace, a mare for $115. He received in payment fifteen dollars in good money, and one hundred counterfeit.

This was an attachment-execution, sued out- by Kunkle & Steviclc on a judgment, against Sarah Mahon, in which George Johnston and Erederiek Cressler were summoned as garnishees.

This was an action of debt by Michael Swanger against Samuel Snyder, to recover the amount due on a promissory note for $200, dated March 17th 1860. There was no difficulty in regard to the plaintiff’s claim in this case ; it was conceded to be valid; the only question arose on the defence.

<p>Error to the Common Pleas of Lancaster county.</p> <p>This was an attachment-execution, by The Lancaster Bank for the use of Martin Gross, on a judgment against Jacob L.- Gross, in which Michael Moore and Benjamin G. Getz, executors of Ann Maria Gross, deceased, were summoned as garnishees.</p> <p>The facts of the case were as follows:—</p> <p>Jacob L. Gross was indebted to the Lancaster County Bank, and gave his judgment-bond, dated the 4th day of April 1857, conditioned to pay $6500 on the 1st day of April 1858. Martin Gross became liable to the said bank for the payment of said bond by his guarantee, who paid the same the 7th day of October 1858. The judgment being then marked for his use, in satisfaction of which he issued an attachment, ad lev. deb., and attached the legacy'coming to Jacob L. Gross, under the will of Ann Maria Gross, in the hands of Michael Moore and Benjamin G. Getz, executors of said Ann Maria Gross, deceased, December 16th 1863. The plaintiff in the attachment issued his interrogatories to Michael Moore and Benjamin G. Getz, garnishees of Jacob L. Gross, January 4th 1864. They'filed their answers to the same, admitting that they had in their hands, as executors of said deceased, $910.98, coming to said Jacob L. Gross under the said will; and after paying thereout $181.78, the amount of two attachments, still left a balance of $729.20 in their hands. March 24th 1864 — Rule to show cause why judgment should not be entered in favour of plaintiff, on garnishees’ answers, for $729.20, the amount admitted by tíiem to be in their hands. On argument, Hannah B. Gross (wife of Jacob L. Gross) claimed the amount in said garnishees’ hands, under a paper claimed by her to be an assignment of Jacob L. Gross, dated the 2d day of May 1861, assigning (as she contended) all the right, title, interest, claim, and demand which he had in both the estates of his two aunts, to wit, Molly Gross, deceased, who died about the 1st of May 1881, and Ann Maria Gross, living at the time but afterwards died, to wit, the 3d day of July 1862; to John H. Reifsnyder, who, on the 6th day of May 1861, transferred the same to said Hannah B. Gross.</p> <p>The fund in dispute was claimed by plaintiff and defendant before the auditor in the Orphans’ Court, distributing the estate of Ann Maria Gross, and the question was referred to the Common Pleas to be determined on the attachment-execution.</p> <p>The assignment of Jacob L. Gross to Reifsnyder was as follows:</p> <p>“ This indenture, made and concluded this 2d day of May, A. D. 1861, between Jacob L. Gross, one of the heirs in law of Ann Maria Gross and Molly Gross, deceased, of Manheim township, Lancaster county and state of Pennsylvania, of the one part, and John H. Reifsnyder, of the city of Reading, Berks county, and state aforesaid, of the other part. Whereas the said Jacob L. Gross is entitled to a share and interest in lands and tenements, also in money and personal property of Molly Gross, deceased, as aforesaid; and also will have an interest in land, moneys, and personal property of Ann Maria Gross aforesaid; and upon the decease of said Ann Maria Gross aforesaid, said Jacob L. Gross becomes entitled to his share of the estate in both aforesaid. I, the undersigned Jacob L. Gross, do assign, sell and convey, and transfer all my right, title, and interest which I have or may have, to John H. Reifsnyder, and his heirs and assigns for ever, for the sum of $200, in full consideration of my right in the above estate. I hereby acknowledge the receipt in full for the same for ever.”</p> <p>May 6th 1861, John H. Reifsnyder assigned and transferred all his right and interest which he had in said assignment to said Hannah B. Gross.</p> <p>Jacob L. Gross had a vested right to the amount of $188.86J in the estate of his deceased aunt, Molly Gross (as appeared by the auditor’s report making distribution of said estate), at the time of the execution of said assignment, which was subsequently awarded to Abraham Bauman, who was the assignee of said Jacob L. Gross, under a deed of voluntary assignment for the benefit of creditors.</p> <p>After argument the court, in an opinion read, decided that the money in the hands of the garnishees belonged to Hannah B. Gross, assignee, and refused judgment to the plaintiff in the attachment.</p> <p>The error complained of by the plaintiff was in refusing judgment in his favour for the amount admitted to be in the hands of the garnishees, and deciding that' the same belonged to Hannah B. Gross, assignee of the expectancy (as they contended for) of Jacob L. Gross, in the estate of Ann Maria Gross, deceased.</p>

<p>Foreign attachment. — Assignment of property in Pennsylvania, in trust for creditors in another state, must be recorded in county where it is situated. — Debt due and so assigned, attachable, if assignment not recorded, and no notice given to attaching creditor.</p> <p>1. A debt due to a non-resident debtor is bound by a foreign attachment issued in this state, notwithstanding a previous assignment by him in trust, of all his estate and effects, where the assignment was not recorded within the county in which the debt attached was due, as required by the Act of 3d of May 1855, and no notice of the assignment was given to the attaching creditor.</p> <p>2. Where the debt attached was claimed against two, and suit brought against them by the non-resident, and on trial the record and pleadings were amended and judgment taken against one: the other defendant was a competent witness on the trial of the scire facias, between the attaching creditor and the garnishee, to show that nothing was due.</p>

<p> Real estate, when partnership property. </p> <p>Land bought for partnership purposes and paid for out of partnership funds, is partnership property, though conveyed in the deed to the partners as tenants in common.</p>

<p>Equity. — Rescission of contracts that are void by the Statute of Frauds.</p> <p>A court of equity will not rescind an executed contract made to hinder and delay creditors, and void by the Statute of Frauds, on the application of one of the parties to the fraud.</p>

<p>Criminal Procedure Act of 31s< March 1860, construed. — Defective indictment, when to be objected to. — Indictment for false pretences, form of. — Duplicity in indictment.</p> <p>1. Under the Criminal Procedure Act, every objection to an indictment for defects apparent upon its face, must be taken by demurrer or motion to quash, before the jury is sworn, and not afterwards: after the jury are sworn, the indictment cannot be quashed, or the judgment arrested.</p> <p>2. In an indictment for fraudulently obtaining the signature of the prosecutor to a promissory note, a count charging the fraudulent obtaining of the signature, is not bad for duplicity because the actual paymant of the note was therein afterwards alleged: the allegation of payment was held not a statement of another offence, but simply surplusage, which could have been stricken out by the court on motion.</p> <p>3. In a prosecution for false pretences, the indictment should show what the false pretences were: and it'is not error to quash the counts that are defective in this respect.</p>

This was an appeal by Alfred Moore from the decree of tne. court below on the .distribution of the balance in the hands of William Moore, sequestrator of the Hanover and Carlisle Turnpike. Road. The facts of the case were these:— The Hanover and Carlisle Turnpike Road Company had been for many years in the hands of a sequestrator. A number of. judgments stood open against it, the holders of which received a dividend each year from the proceeds of the road.

This was an amicable action in debt, in which Michael Fetrow was plaintiff, and Samuel Hay, executor of the last will and testament of Joshua Fetrow, was defendant, and in which the following case was stated for the opinion of the court:— Joshua Fetrow died on the 25th of February, A. D. 1864, naving made his last will and testament, dated the 25th of November 1863, which said will was duly admitted to probate in the register’s office of York county, on the 27th of Februáry…

This was an action of assumpsit by John C. Peaslee against William H. Miller, administrator of William Hughes, in which the following agreement was made by the counsel for the parties:— “ March 10th 1865. It is agreed that this case shall be submitted to his Honour, Judge Graham, upon the depositions and admitted facts, he to render such judgment therein as he shall consider right and proper.

<p>Purchase-money judgment, when preferred, to mechanics’ lien on building commenced before entry of judgment.</p> <p>Where a vendee of land under articles commenced to build a saw-mill, and afterwards received a deed for the land, giving a judgment for the unpaid purchase-money which was entered on the same day, Held, that the lien of the purchase-money judgment had priority over a mechanics’ lien filed for materials furnished for the mill, and was entitled to he first paid out of the proceeds of the sale of the land under execution.</p>

<p>Evidence.— Vendor without covenant or warranty .a competent witness for vendee. — Declarations of husband, not admissible to affect title through wife after his death.</p> <p>1. Where a widow, to whom in the lifetime of her husband, land bought by her father has been by bis direction conveyed, conveys it after her husband’s death to her sons without covenant or warranty of title, she is a competent witness in their behalf, in an ejectment brought by them against a sheriff’s vendee, who bought the land as the property of the husband, under an execution against him.</p> <p>2. The declarations of the husband and father, made in the absence of the plaintiffs, as to the intention of the conveyance to the wife, were held inadmissible against them, for they did not claim under him; nor were they admissible after his death to affect her interests; nor in the absence of proof of a confederacy between husband and wife to defraud bis creditors, are his declarations, made long before the conveyance, admissible as tending to show that it was in fraud of creditors.</p>

<p> Presumption of ownership of personal property as between husband and wife. </p> <p>1. Unless there is clear and satisfactory proof that goods purchased hy a married woman were paid for out of her own separate estate, the presumption of law is that they were paid for out of means furnished hy the husband.</p> <p>2. Hence where, in an interpleader issue to try the title to goods levied on as the property of the husband, but claimed by the wife, the evidence of her separate ownership of money was remote and there was no proof that what was received, long before, purchased either the goods levied, or those which were first traded with, it was not error to withhold the case from the jury and to instruct them to find for the execution-creditors the defendant in the issue.</p>

<p>Proper court for adjustment of .damages done by Union Canal Company.— What constitutes an appropriation to use of carnal company.</p> <p>1. Under the act incorporating the Union Canal Company, jurisdiction to award a venire for a jury to ascertain and report the damages caused by the construction of the canal, is not' confined to the Court of Quarter Sessions or the Mayor’s Court of Philadelphia: but the Court of Quarter Sessions of any county through which the canal passes has jurisdiction over an assessment of damages done to lands within that county.</p> <p>2. Where for many years the use of water from a stream had been diverted from an ancient mill, by the canal company, under agreement with the successive owners of the land and mill-seat, for a stipulated hire, and on the expiration of an agreement with the last owner, it was not renewed, but the use of the water continued by the company, such continued use was held such an appropriation and taking under the power of eminent domain granted to the company by the commonwealth, as would entitle the owner to present his petition for the assessment of damages.</p>

<p>Party; to suit competent to testify to court in matters auxiliary to the trial. —Action of trover suspended pending indictment for larceny.</p> <p>1. A party to a suit is competent to testify respecting matters which are only auxiliary to the trial, and are addressed to the court.</p> <p>2. Thus where it was objected to the deposition of a witness offered on the trial of a case, that he was alive and in the county at the time, the party offering the deposition is competent to prove that the witness was sick and unable to attend court.</p> <p>3. Though the plaintiff had caused the defendant to be indicted for larceny, he might, pending the prosecution, instituto a civil action of trover, in respect to the same goods: for the civil suit was only suspended until the criminal prosecution was disposed of, and could then be tried.</p>

<p>Pleading. — Joinder of assumpsit and tort. — Practice as to swearing jury where two of three defendants confess judgment before trial. — Defend- ■ ants, when not competent witnesses for co-defendant.</p> <p>1. A count in assumpsit cannot be joined with a count in tort: and upon trial the plaintiff may be compelled to elect upon which he will proceed.</p> <p>2. Where, before the trial of an action of assumpsit, brought against three, two of the defendants confess judgment, but the damages have not been assessed, it is proper to swear the jury as to the remaining defendant.</p> <p>- 3. But the two defendants who have confessed judgment are not competent witnesses in favour of their co-defendant, — both- on the ground of interest, because the damages have not been assessed :• and on that of policy, because they are parties on the record.</p>

<p>Dismissed executor, how compelled to deliver to his successor the effects ' of estate in his hands.</p> <p>The Orphans’ Court has power to enforce, against the person of a dismissed executor, by process of attachment a decree that he should pay and deliver over to his successor all the goods, chattels, and effects of the estate in his hands.</p>

<p>Mistake in application for policy of insurance, not corrected by parol testimony. — Reformation of policy for mistake, when inadmissible.</p> <p>1. That which is a warranty in a policy of insurance by its terms, cannot be shown by parol evidence to have been inserted by mistake.</p> <p>2. Thus where a policy provided that the representations in the application should be a warranty on the part of the insured, and the statement made by him in the application, as to encumbrances upon the property, was untrue in fact; in an action against the company after loss, evidence is not admissible to show that the answer of the assured, in reference to encumbrances, was made by mistake.</p> <p>3. The evidence was not admissible for the purpose of reforming the policy, for the mistake was not that of both the insured and the company: it is not enough that the agent of the company was also mistaken, for he was not a contracting party, and the mistake was not therefore mutual.</p>

<p>Legal settlement of pauper. — Duty of overseers when pauper is taken side. — Removal of pauper, when proper. — Proper forum in pauper cases.</p> <p>A female servant, bom and brought up in H. township, where her father had a legal settlement, went, three years before her death, to the house of a relative in S. township, making it her home when not at work elsewhere. While at service in M. township, at the house of a stranger, she fell sick and was taken, at the request of the overseer, without any order of removal, back to her relative in S. township, where she died in consequence of her disease, which proved, after removal, to be small-pox. On a proceeding in the Quarter-Sessions by the township of S. against M.: Held,</p> <p>1. That as the pauper had gained no legal settlement in either township, nor had been made chargeable by law to either of them, nor any order of relief or removal issued, 'her only legal settlement was derived from her parents in H. township.</p> <p>2. That the overseers of S. township should have treated the pauper as falling sick in their hands, so sick as not to be removable, and proceeded against H. township for recovery of expenses.</p> <p>3. That M. township was not liable though the pauper had fallen sick therein, even if she had been improperly removed: but,</p> <p>4. That the removal from a house of a stranger-, where she had been at service, before the disease developed, to the house of her relative, was not an improper removal.</p>

This was an appeal by Benjamin Eby and others, children of Samuel Eby, deceased, from the decree of the Orphans’ Court in the matter of the estate of Christian Wisler, deceased.

This was an attachment-execution at the suit of Leonard Weaver against Isaac Hill, in which the Huntingdon and Broad Top Mountain Railroad and Coal Company were summoned as garnishees.

This was an amicable action of assumpsit, in which Eliza Clark was plaintiff and Samuel Watson was defendant, founded upon the' facts stated in the following agreement:— “ Amicable action of assumpsit in the Court of Common Pleas of Cumberland county. And the parties agree that the case shall be at issue as upon a narr. in assumpsit and plea of non assumpsit.

<p>Error to the Court of Oyer and Terminer of Clinton county.</p> <p>William Gaines was indicted for the murder of his brother Robert Gaines, at December Session 1863, and arraigned for trial at February Session 1864.</p> <p>■ That Robert Gaines had been murdered was clear, but the testimony on the part of the Commonwealth as to the guilt of the defendant was altogether circumstantial.</p> <p>The trial commenced on the 10th of February, and closed on the 21st of February.</p> <p>The material facts, as given in evidence, were as follows :—</p> <p>It appeared that the two brothers, William and Robert, had a difficulty about some timber, which resulted in a lawsuit, and which was still undetermined in July 1863. On the 12th of July Robert went over to William’s, and invited him to come to his house the next day to take a deer-hunt, and see to if they could not settle their money matters. William went over that evening, and next morning, in company with Absalom Smoke, an illegitimate son of Robert’s, started on a deer-hunt. Their dogs failing to start any deer, they both returned to Robert’s house about noon. After dinner all the parties present, consisting of Absalom Smoke, William and Robert Gaines, and Mary Gaines * Robert’s wife, went to work in a corn-field near Robert’s house. Several times during the afternoon Robert invited William to the house to drink with him. Shortly before supper-time, they went in together for the purpose of settling their accounts, in which they succeeded, finding a balance of some sixty-odd dollars due William. When the settlement was concluded they both came out of the house. Robert then went into a bed-room for the ostensible purpose of getting the money to pay his brother. In a few moments, however, he returned with a large butcher-knife, and said to William that he had much rather fight him than pay him. William replied that he had no wish to fight at all, and besides Robert had a knife and would not fight fairly. Upon this Robert made an assault upon William, striking at him furiously and repeatedly with the butcher-knife, and inflicting several serious wounds upon him, one of which was on the chin and bled profusely. As William was retreating and attempting to parry the blow's given with the knife by his brother, Robert succeeded in getting hold of a hilling-hoe, with which he struck William twice or three times, knocking him down. William finally succeeded in making his escape, and ran through the fields towards the road leading to his own house. While Robert was following William through the fields threatening to take his life, Absalom Smoke went to the house, took William’s gun and carpet-bag to the place where William would come into the road. When Robert ascertained this he threatened him for what he had done.</p> <p>After William had passed into the road from the fields, Robert came up near him and requested him to go back to the house and get the remainder of his things, consisting of a dog-chain and a bottle of whiskey. William said he was afraid Robert would fall on him again and abuse him if he went back. Robert promised that he should not be further molested. They then both returned to the house. After William had received the articles belonging to him, Robert renewed the proposition to fight out their difficulty. William replied that he could not fight, as he was bleeding so badly. Robert then said if William did not leave the premises immediately he would make him bleed more. Upon this William took his things and left, but no one saw in what direction he went. According to the testimony of the wife of the deceased, at no time during this entire difficulty did William make any threats against Robert, nor attempt in any wise to do him injury, nor exhibit any feelings of malevolence or revenge towards him. And from the testimony of many neighbours called, he was shown to be a quiet, peaceable, good-natured, inoffensive man; while on the other hand, it appeared from the testimony, that Robert was quarrelsome, malicious, vindictive, and revengeful.</p> <p>After William left the house, supper was prepared and placed on the table, and Robert and the family sat down to eat — Robert sitting opposite to and facing a window. During the meal, Robert told his family, that when he had finished his supper he would take his gun and follow William, and that with the load he had that day put into his gun he would kill William, or John Gaines, another brother with whom he had had some difficulty. Before he had finished his supper, however, a shot was fired through, the window, the ball taking effect in the breast of Robert and causing almost instant death. No one saw who fired the shot, although it was so close to the window that the flash of the gun lit up the room, and the burnt powder blackened the window-frame. From the nature of the ground, as testified by all the witnesses., the person discharging the gun must have stood within eight or ten feet of the window when the shot was fired. The ball passed entirely through Robert’s body, and through a board partition, and was found in an adjoining room.</p> <p>After Absalom Smoke left Robert’s house with William’s gun and carpet-bag, nothing was seen nor heard of him until just, before dark, when he stopped at John Condon’s, about half a mile from Robert’s, and asked to borrow his (Condon’s) gun, for the purpose, as he alleged, of defending himself, as he was afraid Robert would follow him up and shoot him, owing to the difficulty they had had m consequence of his carrying William’s things to him. Condon refused to let him have it. After a great deal of importunity and promises on the part of Smoke that he would go directly home in an opposite direction from Robert’s, he obtained the gun and shot-pouch. Condon and his wife both watched him to see that he kept his promise of going home. He started in that direction and went to the end of their fields, when he passed out of their sight — about eighty or one hundred yards from their house. Something like half an hour after Smoke left Condon’s, Mrs. Condon heard the report of a gun in the direction of Robert Gaines’s, which corresponded very accurately with the time that Robert was shot. Late in the evening, after the families had retired for the night, Absalom Smoke went to the houses of John Maines, George Rohn, and Robert Dunlap, living close together, about three-quarters of a mile from John Condon’s. He called these men up, and asked them to go down the road and help William Gaines up, as Robert had stabbed him, and he was afraid William would bleed to death. They agreed to go, but requested Smoke to return with them and show them where William was. This Smoke refused to do, on the ground that he was afraid of Robert, and started on his way home in an opposite direction.</p> <p>Having procured a torch-light, Maines, Rohn, and Dunlap started down the road to find and assist William Gaines. They found him coming up the mountain, in the road above where it is intersected by the path leading from Robert’s house, using his gun as a cane to assist himself along. He was bleeding profusely, very weak and exhausted, and apparently considerably under the influence of liquor. The breech of his gun was somewhat bruised, the lid of the patch-box twisted, and the ramrod partially out of the thimbles. One of the party took the gun, and with some difficulty he was assisted up to the house of Condon, where his wounds were dressed. Some of the party here discovered that the gun had a bursted cap upon it, and William gave him a fresh one to put on. No examination was made to ascertain whether the gun was loaded or not. Absalom Smoke testified that he had shot the gun olf that afternoon at a mark, but stated also that he remembered distinctly of loading it again, and putting on a fresh cap.</p> <p>After the wounds of William had been dressed, he had become refreshed, and furnished with a light, he started on his way home by himself. When he reached his sister’s, Susan Smoke’s, she sent her son James with him to assist him home. They reached William’s house, and he sent James Smoke to the field for a horse, for the purpose of going to Henry C. Kaylor’s, a justice of the peace, who lived some distance, in order to obtain a warrant for Robert’s arrest, for the assault with intent to kill which Robert had committed upon him. The horse was brought, and William, in company with two nephews, started for the justice. When ■within a few rods of the house they met William Smoke, who informed them of Robert’s death; whereupon the party all turned back and proceeded to the house of Absalom Smoke.</p> <p>The next day an inquest was held on the. body of the deceased by Justice Kaylor. No measurement was made of tracks found in the cornfield, which they supposed were the tracks of the murderer ; marks of blood which some of the jurors believed they saw upon an apple-tree and upon the growing corn were not observed by others present, and were not carefully and critically examined by any one. No blood was found in front of the window where the murderer must have stood when he fired the fatal shot.</p> <p>The jury found that the deceased came to his death by a shot fired by some person unknown to them, and seemed contented to inquire no further. No warrant was issued for the apprehension of William, or any one else, for months. Upon the trial none of the guns mentioned, Robert’s, William’s, or John Condon’s, were produced, nor any effort made to show that the ball found by the inquest, and alleged to have been the instrument of death, corresponded in weight with the balls of any of these guns.</p> <p>Absalom Smoke was the principal witness for the Commonwealth. . He testified that William, after leaving the field, had received his gun, and had offered him money to get possession of it. That after getting it he swore he would not leave the place without satisfaction; and many other circumstances tending to show a malicious disposition on the part of William toward Robert. Upon cross-examination he denied ever having any difficulty of any kind with Robert, or ever entertaining any evil designs towards him. He denied having told to Condon and the men he sent for William Gaines that he and Robert had a difficulty, and he was afraid Robert would follow him and kill him. He furthermore denied having ever told any one that Robert had illicit intercourse with his (Absalom’s) wife, and that he would watch his opportunity to take his revenge. He denied having said to any one before the murder that he would take Robert’s life, or afterwards that he had done so.</p> <p>Under the charge of the court there was a verdict of guilty of murder in the first degree.</p> <p>Motions for a new trial and in arrest of judgment were made, argued, and overruled; judgment entered on the verdict, and the -prisoner sentenced to be hanged.</p> <p>This writ was then sued out for the prisoner, for whom the following errors were assigned:—</p> <p>1. The court erred in rejecting the evidence offered by the defendant below, which offer was as follows:—</p> <p>“ Susan Smoke, the witness under examination, being on the stand, defendant’s counsel propose to ask her, for the purpose of contradicting and discrediting Absalom Smoke, what he told her shortly prior to the death of Robert Gaines in relation to illicit intercourse between Robert Gaines and his wife Naomi, and in relation to what he (Absalom Smoke) had determined to do to Robert Gaines in consequence thereof.”</p> <p>The Commonwealth objected to the admission of this evidence for the following reasons:—</p> <p>1. Because as Absalom Smoke was cross-examined as to collateral matters, his answer was therefore conclusive on the defendant, and he cannot be contradicted.</p> <p>2. Because the motive and feelings of Absalom Smoke towards the deceased would only be evidence were he on his trial for the offence charged against William Gaines.</p> <p>3. The evidence is not competent to exculpate the prisoner, by throwing the guilt of the crime upon Absalom Smoke, by proving his motives and feelings towards the deceased.</p> <p>4. The evidence, if admitted, would not discredit the witness Absalom Smoke, as to his relation of facts and circumstances implicating the prisoner.</p> <p>The offer was held inadmissible for the reason stated in the first objection above set forth.</p> <p>2. The court erred in admitting the evidence offered by the Commonwealth, which offer was as follows:—</p> <p>“ Commonwealth proposes to prove by John Rohn that Susan Potter had a conversation with him in relation to the trial of William Gaines, in which she inquired of him what they could prove against William Gaines.”</p> <p>Defendant’s counsel objected to the above offer, because wholly irrelevant to the issue trying.</p> <p>Admitted for the purpose of showing the feeling of the witness.</p> <p>3. The court erred in admitting the evidence offered by the Commonwealth, which offer was as follows:—</p> <p>“ The Commonwealth proposes to prove by John Condon, the witness, that Absalom Smoke returned the gun next morning which he had borrowed the evening before. That the gun was in the same condition when it was returned as when Absalom Smoke took it.</p> <p>“ That the shot-pouch contained the same number of bullets that were in it when taken by Absalom Smoke the evening before. That the gun had been loaded some time before by the witness, and that when returned by said Absalom Smoke it had not been discharged.”</p> <p>Defendant’s counsel objected to the admission of the evidence offered, for the following reasons:—</p> <p>1. Because, if evidence at all pertinent to the issue, it was evidence in chief, and of' the same character as the fact so carefully proven by the Commonwealth in chief, that Absalom Smoke, on leaving Condon’s house, started in the direction of John Maines’s house, and not in the direction of Robert Gaines’s house.</p> <p>2. Because the Commonwealth had already offered evidence that the gun and shot-pouch were taken back to Condon’s the next day after they were borrowed, and could then have not only called Condon to the same fact, but to the condition of the gun, shot-pouch, &c., as now offered.</p> <p>The court regarded this offer as coming within the rule of law admitting rebutting evidence, and.therefore considering it competent testimony, irrespective of that discretion which the court may exercise in the order of admitting evidence, overruled the objections of the defendant and admitted the offer.</p> <p>4. The court erred in that part of their charge to the jury which was as follows:—</p> <p>“ If the witnesses who have testified on the subject could not by the examination which they made, ascertain with certainty whether what they supposed to be blood was really blood, then the proof falls short of the requirements of the law; but we cannot instruct you that because no analysis has been made of the substance which the witnesses supposed to be blood — no chemical test, nor microscopic examination — that therefore you are to reject the evidence as insufficient to show that it was blood. We feel it to be our duty to refer the question to you, and leave it to you ,$o say whether the Commonwealth has satisfied you beyond a reasonable doubt that the spots seen by the witnesses were blood.”</p>

<p>Insurance.— Competency of insurance agent as witness for assured in action on policy. — Agent of mutual insurance company, when not agent for party assured. — Insurable interest discussed.— What misrepresentations as to ownership are fraudulent.</p> <p>1. Where an applicant for insurance on machinery in a mill, when inquired, of as to encumbrances, answered that there were none, except that the premises were under lease, adding that there were judgments on the land, but he did not think them liens on personal property, in which the agent concurred, and returned to the company the application with the answer that there were no encumbrances, but that the premises were leased; the agent was held a competent witness for the assured in an action against the company after loss by fire, in the absence of a covenant in the policy that made the answer of the assured a warranty.</p> <p>2. Thus where the policy contained no such covenant, the mistaken answer was held a representation only, and not a breach of covenant, making void the policy: and the agent was therefore not incompetent, on the ground that his testimony tended to contradict and impair the alleged covenant on the part of the assured as to encumbrances.</p> <p>3. A stipulation in a policy that if any agent of the company, in the transaction of their business, should violate the conditions, the violation shall be construed to be the act of the assured and shall avoid the policy, will not render the assured responsible for the mistakes of the agent; nor, though the company was mutual, can the assured be regai'ded as a member of the company, so that before the granting of the insurance, the agent of the company became his agent, and could bind him by his acts.</p> <p>4. The assured, as owner of the greater portion of the machinery, to an amount far exceeding the insurance, and as landlord of the factory in which, together with his own, there was some machinery owned by a third person when the policy was granted, which before the loss he had seized under a landlord's warrant and bought in, has an insurable interest in the whole; and he is not guilty of fraud in not disclosing such other ownership when applying for insurance.</p>

<p>Husband may insure real estate of wife in Ms own name. — Exception as to “ destruction by mobs’’ construed.</p> <p>1. A husband, as tenant by the curtesy of the real estate of his wife, may effect a valid insurance thereon, in his own name.</p> <p>2. Whel'e the policy excepts “ loss by fire occasioned by mobs or riots,” the exception clause does not extend to a loss by fire occasioned proximately by the burning of an adjoining bridge by order of the military authorities to prevent the advance of an armed force of the public enemy.</p>

<p>County orders not chargeable with interest. — Suit must be brought on original debt.</p> <p>1. The holder of a county warrant or order cannot recover interest after demand and non-payment for want of funds.</p> <p>2. The warrant is not a'bill, note, check, or contract, nor is it a satisfaction of the original indebtedness, and no action lies upon it: the suit must be upon the original claim.</p>

<p>Wills. — Proof of execution, when sufficient.</p> <p>Where, in an issue of devisavit vel non, one of the two attesting witnesses testified that he wrote the will and subscribed it as a witness at the'request of the testator, and that the other witness subscribed at the same time at like request; and when called, the second witness did not remember that he saw the testator sign, or that he heard him say anything or by whom he was called to be a witness: the fact of execution was sufficiently proved.</p>

<p>Error to the Common Pleas of Cumberland county.</p> <p>This was an action of trespass on the case, by Philip Arnold against Jonathan Cornman, in which the plaintiff claimed to recover damages for the interruption of a right of way over a lot of ground of the defendant, in the borough of Carlisle.</p> <p>The two adjoining lots of the plaintiff and defendant were both owned by Thomas Foster, who in 1798 conveyed the lot owned by the defendant to Michael Wendel. In the deed from Foster to Wendel there was the following reservation*:—</p> <p>“ And further, the said Thomas Foster reserves the privilege of making and upholding a gate in the partition-fence between him and the said part of a lot hereby granted. The nigh side of said gate to said Foster’s house is to be ten feet down the lane from the north-east corner of the front house wherein he now lives; the said gate to be three feet three inches wide, with the liberty and privilege of an alley of the same width from the said gate across part of the lot hereby granted, a due north course fifteen feet three inches, and from thence an alley of the same breadth a due west course to the pump on the same part of a lot, with free liberty to pass and repass from the said gate through the said alley to the said pump at all times, with full liberty to take water from the same for the use and benefit of him the said Foster, and for the use and benefit of whoever shall or may possess the house, tenement, and part of a lot whereon the said Thomas Foster now lives, their heirs and assigns for ever, he and they paying an equal proportion of the necessary repairs from time to time.”</p> <p>Michael Wendel the same year conveyed to Jacob Hendel, who in 1814 conveyed to J. D. Haverstick. In all these deeds there was the same reservation. In 1829 the Wendell lot was sold by the sheriff, and, after sundry conveyances, the title was vested in Cornman in 1860. It was admitted that the title of Foster to the adjoining lot was in Philip Arnold at the commencement of this action.</p> <p>The evidence showed that up to 1860, when Cornman became the owner of the lot over which the right of way was claimed, Arnold, and those from whom he derived title, used and exercised the right of way over the Cornman lot, to obtain water from a well bn a line between the Cornman lot and the adjoining lot on the north, although not in the identical place mentioned and described in the reservations in the several deeds.</p> <p>In the deed Foster reserved for himself and subsequent owners of the lot then owned by him and now owned by Arnold, the right to make and uphold a gate in the partition-fence, the nigh side of the gate to be ten feet down the line from the north-east corner of Foster’s house; the gate to be three feet three inches wide, with the privilege of an alley of the same width across part of the lot due north fifteen feet three inches, and from thence a due west course to the pump.</p> <p>From the evidence it appeared that William Rheem, who owned the corner lot in 1838, put up an addition to a back building which stood down the lot, some distance from and disconnected with the front building. This still left a space of six feet ten inches between the front and back buildings on the Cornman lot, but it would obstruct the passage north from the gate fifteen feet three inches, as described in the deeds to which we have referred. This seemed to have been acquiesced in, the owners and occupants of the Arnold lot still using the right of way to the pump on the Wendell lot, by passing, not due north and then west, but by going north-west and in between the front and back buildings on the Wendell lot to the pump on the north side of said lot. The right of way and use of the water was thus enjoyed till 1855, when Mr. Arnold extended his building east so as to include the gate, which was built up and formed part of the wall of his house, shut up the old gate, and opened a new one, the near' side of which was fifteen feet two inches from the north-east corner of the old Foster house. At the time the new gate was made and the old one nailed up, Mrs. Gallaher owned the Wendell lot, but made no objection to opening the new gate at the time, and Arnold continued to use the new gate and get water from the well as long as Mr. Gallaher lived there. No new contract, however, was made. He moved from the property in 1838. Mr. Woods then occupied it as his tenant for two years, and in 1860 G-allaher and wife sold to Cornman, the present defendant. In 1860 Cornman pulled down the front building and erected a new one, which he extended to the back building on his lot, using the end wall of the hack building as part of the back wall of his front building, and making a hall or entry between the two by putting up studding, and lathing and plastering a few feet from the end of the back building. Mr. Cornman at the same time nailed up the new gate made by Mr. Arnold, and which he had used from 1855 to 1860.</p> <p>The plaintiff complained of Mr. Cornman nailing up the gate, and further, of his closing the space between his front and back building so as to obstruct the way to the well, which plaintiff had used.from 1838.</p> <p>The defendant alleged that plaintiff had no right to use a gate and enter his lot at a point further east than that designated in the deed of Foster to Wendel, and subsequent deeds ; that he had only used the new gate five years prior to Cornman’s purchase, which, in the absence of a grant from Gallaher, of which Cornman had notice, would confer no right; and that plaintiff having walled up the old gate which he had a right to use, the further enjoyment of the right of way became impracticable, and he cannot complain of Cornman obstructing the way to the pump when Arnold had no mode of access to the lot.</p> <p>On these facts the plaintiff requested the court to charge the jury—</p> <p>1. If the jury find that the deed of Thomas Foster to Michael Wendel reserved and established in the grantor a right of way and water upon and over the lot of the grantee, it was competent and lawful for them, or any parties claiming under them, to change the course of that way in order to make the enjoyment of their respective properties more convenient for each other ; and that it was competent for them to make such change by parol.</p> <p>■ 2. If such change was made in 1838, and was again made in 1855, by the consent and to suit the convenience of the then owners of the respective properties, and when Mr. Cornman purchased in 1860 he found such change made by unmistakeable marks on the ground, he was bound by it.</p> <p>3. That there is no evidence in this ease that would justify the jury in finding that the right of way and water was either abandoned or relinquished by the plaintiff, in the face of proof that he continued to use and enjoy them continually up to the period when he was actually excluded by the act of the defendant in nailing up the gate and shutting up the way by a permanent building.</p> <p>4. If the jury believe that in 1855 when the gate was moved to its present position, it was done by the consent of the then owners of the respective lots, and Cornman so found it when he purchased, although the old gate had been built up, that would not in law justify the defendant in totally excluding 'the plaintiff from the right of way and water by putting permanent erections upon it and destroying his entire right.</p> <p>5. That it is not essential to the plaintiff’s right to recover that the actual damage is even appreciable; if the act done by the defendant is injurious to the plaintiff’s right, without proof of any specific injury, the plaintiff is entitled to recover.</p> <p>The defendant requested the court to charge the jury as follows:—</p> <p>1. That the plaintiff cannot recover in this action on account of the building, a part of the house which obstructs the right of way granted in the deed of Foster to Hendel: 1st. Because this action is for the erection of a nuisance, and the house was not erected by defendant, but by Mr. Rheem, long prior to defendant’s ownership and possession. 2d. Because William Rheem, in 1838, extended the old back-building so as to obstruct and occupy the right of way across his lot to the north side of it, and the building has stood there until 1861 (when this suit was brought), constituting a hostile and adverse occupancy which bars the privivilege under which plaintiff claims. 3d. Because the plaintiff, Philip Arnold, having, before bringing this suit, removed the old gate and extended his house along the line between him and Cornman over the ground and beyond where the old gate stood, without having left any door or opening for going back and forward to the pump, which building so continues up to this time; he has rendered it wholly useless to him, and utterly impossible for him to enjoy the privileges granted in the deed from Foster to Hendel, and he has not sustained even nominal damages. The law is to enforce substantial rights capable of enjoyment; not mere airy rights which are incapable of enjoyment.</p> <p>2. That if the plaintiff claims by prescription a right of way from where the old gate stood, westwardly to Cornman’s front house, and thence north to the pump, he has lost it: 1st. By abandonment, in building his house over the ground on which the old gate stood, and thus rendering its use impossible from that point. 2d. By estoppel, in having lived close by when Cornman was erecting his new house, being frequently in the building talking to the carpenter and mason who were erecting it; in constantly seeing it erected before his eyes in such manner as would obstruct the use of his alleged rights, and making no objections, not even mentioning the existence of any such rights as he now lays claim to.</p> <p>3. That if the plaintiff claims under the reservation in the deed of Foster to Hendel, he must exercise the privilege in accordance with the grant, and along the line indicated by. it. If he claims to exercise the privilege along another path or line, he can only do so by prescription, and must show clearly that such right was exercised over and along a specific line or way in contradiction from a loose or rambling one. If he claims by prescription, then the disuse of the old gate and the erection of a new one are in such a way as to render the use of the old gate an impossibility, is an abandonment of any prescriptive right Avhich he may have obtained.</p> <p>4. That Jacob Gallaher had no interest in the property so as to authorize him either expressly or tacitly to agree to any change in the situation of the gates, the title to the property being in his wife.</p> <p>The court, after stating the material facts, instructed the jury as follows:—</p> <p>“We instruct you that if Cornman, when he purchased, had no knowledge that the new gate between the lots was used by Arnold with the consent and without objection by Gallaher to obtain access to the well, in pursuance of the reservation in the Foster and subsequent deeds, then the plaintiff cannot recover damages for closing the gate. But if the defendant knew, when he purchased, that the gate which he afterwards closed was used by the plaintiff, with consent and approbation of Gallaher, to obtain access to the well in pursuance of the reservations in the prior deeds, then the plaintiff may recover, although the gate was a few feet further east than the points designated in the deeds of Foster and subsequent owners.</p> <p>“We do not concur with defendant’s counsel that Arnold by closing the old. gate lost the right of way over Cornman’s lot. There is no evidence of abandonment of the right, which it appears was exercised up to the time of Cornman’s purchase, and the old gate was closed and the new one opened, because Mr. Gallaher made no objection, and permitted Arnold to enter his lot and pass to the well from a gate a few feet further down the lot than the old one. And we can see no legal objection, if the plaintiff may not be permitted to use the present gate, to his opening a door into his house at the very point designated in the deeds, and thus obtaining access to the well by entering defendant’s lot at the only point defendant alleges he has a right to enter.”</p> <p>The plaintiff’s points were thus disposed of: — ■</p> <p>The 1st and 2d points answered in the affirmative.</p> <p>3d point. “We do not see any evidence in the case that would justify the jury in finding an abandonment of the right by the plaintiff.”</p> <p>The 4th and 5th points answered in the affirmative.</p> <p>The defendant’s points were answered as follows:—</p> <p>1st. “ Plaintiff cannot recover for the erection of the building by William Rheem in 1838, nor does he ask to recover for that obstruction. It is the building erected by Jonathan Cornman in 1860, of which he complains.”</p> <p>2d. “We cannot instruct you from the evidence in this case that the plaintiff has lost his right by abandonment; whether he is estopped from now asserting it, is a question for you to determine from the evidence.”</p> <p>3d. “We have said that plaintiff does not now claim the right of way as designated in the Foster deed, north fifteen feet from the point designated for the gate, that way was obstructed by William Rheem in 1838, and from that period he passed west and then north between the front and back buildings to the well, for if he used this way for twenty years and more, with the consent of the owners of the lot over which he passed, he would require a right of way in this direction. He must show how and what way he passed over to the well. By a loose and rambling way of passing over the lot, sometimes in one way and then in another, he could not acquire a right. The disuse of the old gate and the erection of a new one, which he was permitted to use until Mr. Cornman purchased, would not destroy his right of way, as it was used before the new gate was erected.”</p> <p>4th. “ The evidence is that the title to the property was in Mrs. Gallaher; was occupied by Mr. Gallaher and wife, and if they knew and did not object to Arnold opening and using the new gate in place of the old one, to enter the lot and pass to the well, and Cornman knew this when he purchased, he cannot now take advantage of the title being in Mrs. Gallaher.”</p> <p>Under these instructions there was a verdict and judgment in favour of the defendant.</p> <p>This writ was then sued out by the plaintiff, and the following errors assigned:—</p> <p>1. The court erred in permitting a verdict and judgment to be entered for the defendant without any evidence to justify it.</p> <p>2. The court erred in saying “ whether he (the plaintiff) is estopped from now asserting his right, is a question for you to determine from the evidence,” there being no evidence at all to justify such a determination.</p> <p>3. The court erred in their answer to defendant’s 3d point in saying “ he (the plaintiff) must show how and what way he passed over to the well. By a loose and rambling way of passing over the lot, sometimes in one way and then in another, he could not acquire a right.”</p> <p>4. The court erred in permitting the plaintiff to lose his right without evidence against it.</p>

<p>Land conveyed to husband, before Act q/1848, for legacy or distributive share of wife, when not held in trust for her. — Parol proof of trust.</p> <p>1. Where, hy will, proved in 1811, a testator directed that his real estate be divided into two parts and valued, and then devised the purparts to his two sons at the valuation, but if not accepted at the valuation, directed a sale, and that in either event the proceeds should be divided among his five children : and on acceptance by one son of his purpart a portion thereof was conveyed to the husband of one of the daughters for her share of the valuation: in an ejectment by her, after the death of her husband, against the vendee of apurchaser of the land at sheriff’s sale as the property of the husband, it was Held, That as the share of the wife, whether a legacy or a debt, was exclusively within the dominion of the husband, she could not elect to take it as land, nor could her husband be regarded as her trustee of the land conveyed to him.</p> <p>2. Loose declarations of the husband that the land was his wife’s, not made at the time of the conveyance, are insufficient to establish a trust in him for her.</p> <p>3. Hence, where there was no evidence of any act or declaration of the husband at the time the deed was made to him tending to show that the wife had any title to the land, nor of any subsequent declaration that he did not intend by taking the deed in his own name to acquire for himself ownership of the land, there was no evidence of a trust to submit to the jury, and it was not error to instruct them to find for the defendant.</p>

<p>Appeal from the Orphans’ Court of Lancaster county.</p> <p>This was an appeal, by Martha Mann, from the decree of the court below upon the report of the auditor on the account of Bernard Mann and Martha Mann, administrators of Jacob S. Mann, deceased.</p> <p>In 1841 the real estate of Christian Stoner, deceased, was by petition in the Orphans’ Court divided and appraised into two purparts, designated A. and B. These purparts were accepted September 20th 1841, at which time the usual decree was made in favour of the widow, the annual interest to commence on the 1st of April 1842. Purpart A. was charged with the sum of $866.67, the interest of which was payable annually to Mrs. Stoner, widow of the deceased, and the principal at her death to the heirs of the said Christian Stoner, deceased. In 1837 Mrs. -Stoner intermarried with Jacob S. Mann, and in November 1843 Jacob S. Mann purchased the real estate at sheriff’s sale, which he occupied until his death. Purpart B., purchased by Martin Fry, was charged with the sum of $366.67, the interest of which was payable annually, as in the other case, to the said Mrs. Stoner, now Mrs. Mann.</p> <p>■ Jacob S. Mann died November 19th 1863, leaving an estate which was valued at $31,725.83. He never paid any interest to his wife, nor was any paid since his decease. Martin Fry paid the interest from 1843 to 1858 to Jacob S. Mann, deceased, who gave feceipts for the same; after that time he paid it to her. When he paid the interest to Mr. Mann, Mrs. Mann was present but said nothing against it.</p> <p>The account of the administrators of Jacob S. Mann was referred to an auditor, before whom Mrs. Mann presented the following claims, viz.:—</p> <p>One for $36 for services rendered in managing tavern for the benefit of the estate from November 19th 1863 to February 19th 1864, which was not allowed by the auditor.</p> <p>Two other claims for interest on dower against her husband’s estate, viz.: Interest of dower $866.67 charged on tavern property, late of Christian Stoner, deceased, former husband of Mrs. Mann, and bought by Jacob S. Mann, deceased, in 1842; from that date to 1864, $52 annually, twenty-two years, $1144, and interest on each sum as the same became due. Also interest on dower, viz., $366.67 charged on property now owned by Martin Fry, and paid to Jacob S. Mann, $22 annually for sixteen years —interest on each sum as the same became due. These claims were also rejected.</p> <p>Before the auditor, Martin Fry was called by the appellee to prove that when he paid the interest to Mr. Mann, Mrs. Mann was present hnt made no objection to it.</p> <p>The witness was objected to as incompetent by the appellant, but the objection was overruled and the witness admitted to testify.</p> <p>Exceptions were filed to this report, but the court (Loire, P. J.) dismissed the exceptions and confirmed the report.</p> <p>The errors assigned were as follows:—</p> <p>1. The court erred in confirming the auditor’s report.</p> <p>2. In not allowing the claim of Mrs. Mann for the annual interest on the sum of $866.67 charged on the real estate of Christian Stoner, the former husband of Mrs. Mann, deceased, and purchased by her late husband, Jacob S. Mann, now deceased, November 25th 1843 ; said period running from said November 25th 1843 to April 1st 1864, when the present owner, Mrs. Brenneman, became the purchaser,' with interest on each amount as it annually accrued.</p> <p>3. In not allowing interest on the said sum of $866.67 from April 11th 1848, the date of the Married Woman’s Act, to April 1st 1864.</p> <p>4. In not allowing interest on the said sum of $866.67 from November 19th 1863, the date of Jacob S. Mann’s death, to April 1st 1864.</p> <p>5. In not rejecting the testimony of Martin Fry.</p> <p>6. In saying that the widow’s attorney called said Martin Fry, the witness, whereas the notes of the auditor show that he was called by Mr. Wilson, attorney for the appellees.</p> <p>7. In not allowing the claim of said Mrs. Mann for the annual interest on the sum of $366.67 charged on the property purchased by Martin Fry, and paid by him to Jacob S. Mann, deceased, from 1843 to 1858, with interest on each annual payment.</p>

<p>Husband and wife.— Gift of income by wife of her separate estate, to ■ husband, valid. — Presumption of gift by wife.</p> <p>1. A married woman having a separate estate may, since as well as before the Act of 1848, dispose of it or of its income by gift or loan to her husband ; and his receipt or use of her money with her consent, is sufficient to raise the presumption of a gift to him.</p> <p>2. Hence, in an action by a widow against her husband’s administrator, to recover money received by him during coverture from her separate estate, where there was evidence that the amount received was, in part at least, a gift to him from her, it was not error to instruct the jury that what had been received by him as a gift could not be recalled, and must not be included in the verdict.</p>

* This was an appeal by John Brindle from the decree of the court below on a bill filed by Richard Brindle praying for a decree to enforce the specific performance of a written agreement for the sale of a house and lot in Bellville, Mifflin county. For reasons contained in the opinion of this court, the merits of the case were not reviewed on the appeal.

This was an action of trespass on the case by Jacob Erb, to recover damages for interrupting him in his right of way over the land of the defendant, John Erb. The right of way was admitted, and the question was whether he was disturbed in that right.

<p>Widow refusing to take under the will of a testator, entitled to dower at common law, must claim it in the Common Pleas and not in the Orphans’ Court.</p> <p>1. The dowei to which the widow of a testator is entitled, who refuses to take under the will, is dower at common law, and it cannot be proceeded for in the Orphans’ Court: the Court of Common Pleas both at law and in equity has exclusive jurisdiction.</p> <p>2. Thus where the testator had devised his lands to his sons in severalty subject to a provision in favour of the widow, held that upon her election not ’ to take under the will, she could not claim under the intestate law, for there was no intestacy; but only the rights vested in her by marriage before the decease of her husband, or her dower at common law, to be recovered in the Common Pleas: and that it was error to receive and proceed upon her petition for partition in the Orphans’ Court.</p>

<p>Liability of company for tax on dividend and, capital stoch.— Validity of decision of Auditor-General as to liability for taxes. — Interest on taxes in arrear.</p> <p>1. The purchasers of the Delaware Division Canal, under the Act of 21st April 1858, providing for the sale of the state canals, became, by the authority of that act, a corporation, and as such, were liable to taxes on dividends and capital stock, imposed on like corporations by the laws then in force.</p> <p>2. The Act of May 1st 1861, declaring that the companies, grantees of the different lines of canals from the Sunbury and Erie Railroad Company, should hereafter be subject to the payment of the same taxes assessed against like corporations, did not relieve them from the payment of taxes for the years 1858,1859, and 1860: nor as to the “ Delaware Division Canal Company,” did the omission of the accountant officers of the Commonwealth to charge those taxes against it, affect her claim therefor, though the auditor-general had decided in 1859 that no liability existed: nor did the regular settlement and payment of taxes by the company, after 1861, debar a claim for the taxes previously in arrear.</p> <p>3. Where, in answer to inquiry made by the officers of the company, in 1859, the auditor-general had decided that the company was not taxable under the Act of 1844, the penalty imposed by the Act of 21st April 1858, for a neglect or refusal to make the necessary returns, was held not to be incurred.</p> <p>4. Under the Act of 1811, a settlement of the arrears of taxes, as completed in the office of the auditor-general, bore interest after three months from its date.</p>

<p>Li,ability of corporations for tax on dividends under Act of 1859.— Penalty for omission to return, when incurred. — Taxes when assessed only for half year.</p> <p>1. Under the Act of April 12th 1859, imposing a tax upon dividends of corporations, and extending its provisions to all unsettled accounts, a dividend declared by the Wyoming Valley Canal Company in February 7th 1859 not settled for at the date of the act is an unsettled account between it and the Commonwealth, such as renders the company liable for the tax imposed by the act upon the dividend declared.</p> <p>2. Where the taxes for the years 1858, 1859, and 1860 were unpaid, the company were held liable to the penalty incurred of ten per cent, in addition to the tax, for neglecting or refusing to make report to the auditor-general as required by the Act of April 21st 1858, unless some valid excuse can be shown, such as a decision of the accounting department of the Commonwealth that no such liability existed.</p> <p>3. When the company organized and went into operation in July 1858, and within six months of the end of that fiscal year, the taxes for the year ,1858 are assessable for one half year only.</p>

<p>Right of way, how affected by liens and sale of property on which it exists. — Right of sheriff’s vendee to way established over land by previous owner. — Remedy against corporation holding by purchase, for obstructing right of way.</p> <p>1. A permanent way, established by an owner over his own property, and necessary for its convenient use, will not be destroyed by sale or encumbrance.</p> <p>2. Where an owner of land, encumbered by a mortgage, sold to a railroad company a portion of it, to be used for their track, and there was at the time of the sale a road over the part conveyed, the right to which had been reserved in the agreement for sale, but was omitted in the conveyance: in an action by one who subsequently purchased the land at a sheriff's sale, under the mortgage, against the company for obstructing this way, it was Held,</p> <p>(1.) That the right of way did not originate in the reservation in the agreement, but existed previous thereto, and was merely recognised therein.</p> <p>• (2.) That such rights established by an owner over his own land .continue unaffected by .liens or sale, public or private.</p> <p>(3.) That the purchaser under the mortgage was entitled to the road, and to an action on the case against the company for obstructing it.</p>

<p>Land taken for public use by right of eminent domain does not revert to ,- owner on cessation of use.— Title not divested by naked license or permission granted to adjoining owner to use lands thus taken.</p> <p>1. Wherever the Commonwealth, in the construction of her public works, acquired the fee simple in land taken- therefor, either by purchase or through the exercise of her right of eminent domain, and the land was devoted to public use as a highway, a cessation of that use would not revest the title thereto in the former owner. -</p> <p>2. The title to land permanently taken and used for the construction of the Pennsylvania Canal, under the Acts of 1826, and 1827, became upon payment of the damages awarded by the viewers, absolute in the Commonwealth and passed to her grantee, the Pennsylvania Railroad Company, under the Act of 1857, providing for the sale of the main line of the public works: and did not revert to the grantee of the original owner, on a change in the course of the canal made by the canal commissioners before the sale.</p> <p>3. A license or permission by the board of canal commissioners to the plaintiff's ancestor to construct a wharf on the berm side of the canal by excavating twelve feet back into his lot from the water-line, and the subsequent erection of the wharf and use for many years, could not divest the title of the Commonwealth, to the land thereby occupied, if it was within the line of survey reported by the viewers.</p>

<p>Warranty on transfer of note or bill of exchange. — Judgment by default against one defendant, how affected by judgment for co-defendant on trial.— Competency of party as witness.</p> <p>1. A person who sells a note or bill of exchange without endorsement thereby warrants it to be what it purports to be, and that it is neither forged nor fictitious, and a refusal to endorse does not release him from this responsibility ; he is therefore incompetent as a witness for his vendee.</p> <p>2. In an action upon a joint contract, if one be defaulted and the other go to trial on a plea that is peculiar to himself, a judgment in his favour will not discharge the defaulted defendant; otherwise if the matter pleaded be a defence common to both defendants.</p> <p>3. Where in an action on a joint contract, judgment was taken by default against one of the defendants and a trial had against the other, on a plea which was common to both, it was held, that the defaulted defendant was incompetent as a witness for his co-defendant, and that although not incompetent as a witness for plaintiff, on the ground of interest, he was so, as being a party to the record, unless admitted by consent of all the other parties.</p>

<p>Charge of court in one action not evidence in another between same parties. — Not to be read to the jury on argument. — Evidence on plea of former suit for same cause of action. — Judgment when corrected on sci fa. — Implied promise to compensate repelled by relationship of parties.</p> <p>1. The charge of the court in one action, is not evidence to he read to the jury, in another action founded thereon: and it was error to allow the counsel of the plaintiff on the second trial, to read to the jury the judge’s charge in the first.</p> <p>2. Where, as alleged, the original suit was brought to recover for services rendered by plaintiff’s wife, a granddaughter, to her grandfather, in whose house she had lived for many years, as one of the family, clothed and maintained by him, as such; and after his death, judgment was rendered for the defendant: whereupon another action was brought, against his executor and judgment obtained in favour of plaintiffs: in a scire facias upon this, against the widow and heirs, to charge the real estate of the decedent, it was Held., That, as it was material for the defendants to show that the same plaintiff had in a former action set up the same claim and heen defeated, it was error to withdraw the evidence offered to prove that the cause of action was the same, the declaration in the former action being lost.</p> <p>3. The allegation that the damages in the suit against the executor had heen assessed on an erroneous basis, will not avail the defendants in the scire facias, unless it be shown wherein the error consisted as against them.</p> <p>4. Where the testimony of a witness called by the defendants to prove the relation between the testator and the plaintiff’s wife, and her position in his family, was referred by the court to the jury, together with such facts as appeared in the record of the original suit, it was held error: for the chai'ge of the court therein was not evidence for the jury, nor was the judgment against the executor to be considered by them as against the testimony of the witness.</p> <p>5. The relation between the testator and his granddaughter is such, that no implied promise to pay wages can arise therefrom: and it is enough for the defendants to show this relationship, and that she lived with her grandfather and was clothed and maintained by him, as one of the family: for unless the plaintiffs establish an express contract, they cannot reoover.</p>

<p>Severance by defendants in ejectment.— Co-defendant not competent witness for defence after judgment in his favour. — Discretion as to discharge of one of several defendants for want of testimony, when reviewed in error.</p> <p>1. Where ejectment is brought for several distinct properties against two or more defendants, they may defend separately on their separate titles, unless the titles are identical, as where the parties occupy the position of landlord and tenant of the same premises: the defendants having in such case the same interest to defend, it is error to permit a severance on the trial.</p> <p>2. A confession of judgment in ejectment by a tenant for years who was joined as co-defendant -with his landlord, has no eifect on the title and amounts to nothing.</p> <p>3. A defendant in ejectment may defend himself from all the consequences of an adverse verdict by showing that he was not in possession of the premises at the service of the writ or since.</p> <p>4. Although what is known, in actions of ejectment in England, as the “ consent rule,” has no existence in Pennsylvania, it must still be proved on the trial that all the defendants were in possession at the service of the writ.</p> <p>5. Notwithstanding the return of the sheriff is evidence of the possession of defendant, it is only primá facie, and may be rebutted by the defendant after the return is in evidence, which done, he is entitled to judgment for costs, but this is a question of fact for the jury, and it is error in the court to decide it, unless there is a manifestly vexatious joinder of defendants for the purpose of depriving one or more of them of the testimony of a co-defendant.</p> <p>6. Where the court below, in the exercise of its discretion, directs a judgment in 'favour of one of two or more defendants, the Supreme Court will inquire not whether the judicial discretion was soundly exercised, but simply whether it was a case proper for the exercise of such discretion.</p> <p>7. A defendant in ejectment who was tenant for years of his co-defendant, in whose favour a judgment was entered by the court on the ground that he was not in possession of any of the premises named in the writ, except one, in respect to which he confessed judgment, is not thereby rendered a competent witness for the defence.</p> <p>8. Whether a will on which one of the parties in ejectment relied was or was not surreptitiously destroyed by his opponent, is a question exclusively for the jury.</p>

<p>Personal liability of members of saving fund society for special deposits.— Power of association to limit their personal liability as to third parties, discussed. — Notice of limitation derived from former membership of depositor.</p> <p>Where, by the constitution of an, incorporated savings fund society, organized for the purpose of receiving and investing deposits made by members, it was provided that the joint fund should alone be liable for the debts or engagements of the association: that no creditor should have recourse .to the separate property of any member: and that no engagement could be legally made in behalf of the society, nor check, draft, or order given or passed, unless the same contained such limitations and restrictions: in an action by the representatives of a special depositor and former member against the members of the society, at the time of its failure, to recover on his certificates of deposit, which were without limitation or restriction as to personal liability, it was Held,</p> <p>1. That the members of the society were liable personally for the debt, unless it was clearly shown that the deposit was made subject to the limitations and restrictions contained in the constitution.</p> <p>2. That the former membership of the depositor was not alone sufficient to affect him with knowledge of the constitutional limitations, so that the assets of the association would alone be liable for his claim.</p>

<p>Evidence for plaintiff in action for injury to employee on railroad,.— Rules as to assignment of errors and, preparation of paper-books must be observed.— What errors are harmless.</p> <p>In an action for negligence against a railroad company it is error to reject any evidence tending to prove that the plaintiff, although in the service of the company, was by the original contract a daily passenger on their road, that he was not out of place at the time of the injury.</p> <p>Alleged errors will not be considered unless the rules prescribed in 6 Harris in relation to paper-books are strictly observed.</p>

<p>“ Gase” and “ Trespass” discussed. — “Forcible entry” and ‘‘ Trespass” distinguished.</p> <p>1. An action for malicious prosecution will not lie for causing a person to be arrested on a criminal warrant charging an act which is not a crime hut a trespass only.</p> <p>2. The warrant was void in this case, for no crime was committed to give it legality, and an arrest undor it was simply an illegal arrest without authority. Trespass and not case, is the appropriate remedy.</p>

This was a proceeding founded on a bill filed in the court below by The Pennsylvania Railroad Company, praying for an injunction to restrain the Pittsburgh Grain Elevator Company from building on the line of Liberty street, in the city of Pittsburgh. The bill averred .that the complainant and respondent are bodies corporate, under and in pursuance of the laws of Pennsylvania.

<p>Deposit of title-deeds with power to sell, when equivalent to a mortgage.— Validity of unrecorded defeasance.</p> <p>Where a deposit of title-deeds with a power 'of attorney authorizing-to sell and transfer the land, &c., was made April 22d 1847 by one, who received in return a paper which was not recorded, stating that they were deposited as collateral security for a balance due on certain stock theretofore sold, and stating that they were to be returned whenever the stock should be taken up and paid for, and subsequently, in 1858, the holder of the power filled up the blank with the name of one who, thus empowered, conveyed the land described in the deed to the holder: in ejectment by the executors of the vendee, under this power, against the trustees of one who claimed as purchaser at a sheriff's sale, under a mortgage executed February 18th 1859, Held, that the defeasance was intended to apply to any conveyance made under the power of attorney, that the conveyance, together with the other papers, constituted but a mortgage, and the defeasance not being recorded, the whole should be treated as an unrecorded mortgage and be postponed to a. subsequent mortgage without actual notice of the existence of the defeasance.</p>

<p> Defalcation from, unpaid purchase-money for spoliation by holder of adverse title, when allowed. </p> <p>A vendor, under articles of agreement, sold land for which ejectment was pending, and on recovery put his vendees in possession, from which they were evicted, on reversal of that judgment: upon a re-trial, judgment therein was rendered against him which was suffered to remain: but succeeding in a second ejectment, he restored his vendees to the possession : In ejectment by him against these vendees to enforce payment of the unpaid purchase-money, Held</p> <p>1. That the vendees might defalcate in equity for the spoliation of the growing timber by the holder of the adverse title while in possession under the order of restitution, though under the articles of agreement they were not entitled to a conveyance until the purchase-money was paid: but</p> <p>2. That this defence could not extend, in the action then pending, beyond the unpaid purchase-money.</p>

<p>Testamentary lien created by devise. — Doctrine of liens discussed.</p> <p>A general charge on real estate by devise for the payment of debts does not create a testamentary lien of unlimited duration, subject only to the presumption of payment by lapse of time.</p>

<p>Amicable action in account render. — Submission to arbitrators, validity of under Act of 1886. — Party by appearance and trial estopped from objection to power of auditors. — Substitution of auditors.</p> <p>1. An amicable action in account render, with an agreement, that the stated case be entered in the Court, of Common Pleas by the prothonotary, and tried as if summons served, narr. filed, appearance by defendant, plea, and judgment of account entered; naming the auditors, and providing for sub- » stitution; and further that judgment should be entered on the report of the auditors, or those acting as such, to have the same force and effect, as if tried regularly in court: is not a submission, within the first and second sections of the Act of 1836, and it is not necessary that the authority of the auditor who made the award appear affirmatively upon the face of the submission, in order that judgment be entered.</p> <p>2. After participating in the proceedings before the auditors, and after award filed, and exceptions on the merits by the party excepting, he cannot afterwards object to the authority of the auditors to make the award.</p> <p>3. Where the agreement stipulated for judgment on the award of the auditors, “ or those acting as such,” and the award was made by the three, not named therein, but substituted, it will be implied that the substitution was made by consent, after proceedings had before them, and exceptions to their award on the merits only, or if there was any irregularity, that it had been waived.</p>

This was an execution attachment issued by the plaintiff, to attach a legacy in the hands of William Zimmerman, acting executor of John Zimmerman, deceased, and which was alleged to be payable to John B. Zimmerman under the will of the testator.

<p>Error to the Common Pleas of Philadelphia.</p> <p>This was a scire facias by The City of Philadelphia, to the use of Emanuel Peters, to the use of Shaler, Kierstead & Co., against George Burgin, owner, sur claim for curbing and paving footway in front of defendant’s property on Orthodox street, Erankford. The pleas wore non assumpsit, and payment, with leave to give the special matter in evidence.</p> <p>The material facts of the case were as follows: — In 1858 petitions of property-holders were presented to the councils of Philadelphia for the curbing and paving of a number of streets in Erankford, twenty-third ward of the city of Philadelphia. On the 10th of May 1858, an ordinance of the Select and Common Councils was approved in the words following, viz.: “ Resolved, That the highway department is hereby authorized to notify the owners of property who have not curbed and paved their footways on the following named streets, to wit: Bridge street, from the Frankford creek to the Tacony plank road; Frankford street, from Paul street to the Little Tacony creek; Leiper street, from Orthodox to Church street; Orthodox, from Leiper street to the Tacony plank road,” * * * (and ten other named streets,) * * * in the twenty-third ward, and Manheim street, from Germantown avenue to the plank road, in the twenty-second ward, to set their curb, grade and pave their footways in front of their respective properties, in accordance with the laws and ordinances made and provided for the same; and in case parties notified neglect or refuse to comply with their respective notices within thirty days, the commissioner of highways is hereby authorized to employ such parties on such portions of the work, who will engage to do the same, and collect the proper costs thereof from the respective owners.”</p> <p>At the time this ordinance was passed, John McCarthy was chief commissioner of highways, but his term of office expired on or about the middle of July 1858. Conrad B. Andress was his successor, who remained in office until July 18th 1859, when Jacob Shantz was appointed.</p> <p>The ordinance of July 31st 1855 provided for four commissioners, who, with the chief commissioner, were to constitute the board. There was no evidence showing who the four commissioners of highways were at the time the ordinance of May 10th 1858 was passed; but the evidence showed that John S. Rittenhouse was commissioner of highways at the time the curbing and paving in question was done.</p> <p>Upon the passage of the ordinance of May 10th 1858, John McCarthy, the then chief commissioner of highways, entered into a verbal contract with Emanuel Peters, to curb and pave the foot-way of all the streets named in the ordinance upon default being made by the property-holders.</p> <p>There was evidence on the trial that the defendant in this case received notice under the ordinance in June 1858, and also another notice in January 1859, and having made default for more than thirty days, Emanuel Peters, under his contract, did the curbing and paving in the months of August and September 1859, and the claim in question was filed therefor November 2d 1859.</p> <p>On the trial of the case, the plaintiff gave in evidence the ordinance of May 10th 1858, and also the claim filed, and then closed.</p> <p>The counsel of defendant having opened their case, offered to prove by Jacob Shantz that he was chief commissioner of highways at the time the work in question was done, and that he did not approve the work, and gave no authority to Emanuel Peters to do the same. This offer was objected to by plaintiff’s counsel, but the objection was overruled by the court and the evidence admitted.</p> <p>The witness then testified in substance that he had been chief commissioner of highways since July 18th 1859, and gave no authority to pave Orthodox street. The defendant’s counsel then produced evidence as to the quality and character of the work.</p> <p>The court having intimated that the plaintiffs could not recover unless they produced evidence that Emanuel Peters had been duly employed to do the work; the plaintiff’s counsel then called Daniel George, who testified that he served notice on defendant to curb and pave the footway, January 19th 1859. They also called John McCarthy, who testified that he believed notices were served on defendant in June 1858. The plaintiffs’ counsel then called Conrad B. Andress, who succeeded John McCarthy as chief commissioner of highways, and who testified that he was not asked to approve the work; that he knew that Peters was going on with the work; that he entered into no written or verbal contract with Mr. Peters; that he considered that his predecessor had employed Mr. Peters, and supposed he could not go behind the agreement.</p> <p>The plaintiffs’ counsel then recalled Mr. McCarthy, to prove that he, as chief commissioner of highways, employed Mr. Peters to do the work.</p> <p>This evidence was objected to by defendant’s counsel, on the ground that the work in question was not done until McCarthy had gone out of office, and that McCarthy therefore had no power to make the agreement with Peters. The objection was sustained by the court and the evidence ruled out.</p> <p>The plaintiffs’ counsel then called Peter Augustine, who testified that he did the paving in question for Mr. Peters ; that while he was doing the work, the defendant asked him who authorized him to do the work, and upon being informed that Mr. Peters was the person, the defendant said “ it was all right.” The plaintiffs’ counsel then offered to prove by this witness: 1st. That the defendant waived his right to notice required by the ordinance ; and 2d. That he stated to the workman who was going on with the work, that it was all right, to go ahead. This offer was objected to by defendant’s counsel, and overruled by the court. The plaintiffs’ counsel then called John S. Rittenhouse, who testified that he was commissioner of highways from July Í858 to the then present time.</p> <p>The plaintiffs’ counsel then offered to prove by him, “ That after the expiration of the thirty days’ notice to defendant, the highway department by its commissioner authorized and employed Mr. Peters to do this work, and the commissioner reported the same to the hoard of commissioners of highways, who approved of the same. Offer admitted on pr<?of that the commissioner named in the offer was the chief commissioner. On the plaintiffs’ counsel replying that they did not offer to prove he was chief commissioner, the court overruled the offer.</p> <p>The plaintiffs’ counsel then offered to prove, “ that each commissioner had a distinct district to which his duties were confined, and that the commissioner who made .the contract with Peters had the district where the work was done at the time when the work was done. Offer admitted on proof that the commissioner who made the contract was the chief commissioner, which plaintiffs’ counsel did not propose to prove. The offer was then overruled by the court.</p> <p>The witness then testified, “ I had. charge of the district in which this paving was done in 1859, as commissioner of the highway department; I was there several times to see the work as commissioner. The work came under the immediate notice of the supervisor, and under my general notice. I saw the work going on ; I don’t recollect reporting that this work was going on to the chief commissioner ; there was no objection made to it.”</p> <p>The plaintiffs’ counsel then offered to prove by this witness that the employment of Mr. Peters to do this work was within the scope of his authority, but the defendant’s counsel objected to the question, and the court sustained the objection.</p> <p>The court having intimated that the evidence was fatally defective in not showing a proper employment of Mr. Peters to do the work, plaintiffs’ counsel declined to call any more witnesses as to the quality and character of the work upon agreement of defendant’s counsel, that no question of this character should be raised in the Supreme Court.</p> <p>The plaintiffs’ counsel then submitted the following points:—</p> <p>1. That under the law, evidence, and pleadings in this case, the only questions for the' jury are as to whether the work was done, and the price thereof, and whether the same had been paid for or released.</p> <p>2. If the jury believe the charge in the lien for the work in question is a fair and reasonable charge, their verdict under the law, pleadings, and evidence in the case, should be for the plaintiffs for the full amount of the claim.</p> <p>3. That no evidence of notice to the defendant is required to enable the plaintiffs to recover, nor is it necessary to prove a contract.</p> <p>4. That it is not necessary to prove an actual employment of the contractor for the work by the commissioner of highways.</p> <p>5. That such employment may be inferred from any of the commissioners of the highway department, having knowledge of the progress of the work and making no objection to it.</p> <p>The learned judge of the Common Pleas instructed the jury as follows:—</p> <p>“ This suit is brought by the plaintiff to the use of the equitable' owner for paving. In the view of the law I take, it will be hardly necessary for you to look at the testimony. There is a vital point in the cause which is not substantiated by any evidence, and which is fatal to the plaintiff’s claim. The law is to be given to you by answering the points.</p> <p>“ 1st point in one sense affirmed. While, however, the defence is limited to the three points named in this point, the Act of Assembly was not intended to apply to a cause where there was no authority from the persons properly authorized to give the authority. If no notice was given to defendant there was no authority to do the work, and no right to file a claim. It was a fraud upon defendant.</p> <p>“2. I affirm this point, but the jury must be satisfied that there was authority given to Peters to do the work, and that the work was done.</p> <p>“ 3. I refuse to charge as requested in this point; notice must be given to defendant. Under the ordinances, a contract to do the work must be proved, or the work sanctioned by the chief commissioner.</p> <p>“ 4. It is necessary to prove the employment of the contractor, Mr. Peters, by the chief commissioner and no other person, or that the chief commissioner sanctioned the work while it was progressing.</p> <p>“ 5. I refuse and decline so to charge.</p> <p>“ As the plaintiffs have not shown the existence of any contract entered into between the chief commissioner of highways and Emanuel Peters, for the doing of this work, and as there is no evidence that the work has ever been sanctioned by the chief commissioner of highways, and no evidence of any waiver of notice by the defendant, the jury is instructed to render a verdict for defendant.”</p> <p>Thereupon the jury, in pursuance of the instructions from the court, rendered a verdict for the defendant. This writ was then sued out for the city, and the following errors assigned:—</p> <p>1. The court below erred in charging the jury “ that there was a vital point in the cause which is not substantiated by any evidence, and which is fatal to the plaintiffs’ claim.”</p> <p>2. In charging the jury as follows, viz.: “As the plaintiffs have not shown the existence of any contract entered into between the chief commissioner of highways and Emanuel Peters, for the doing of this work, and as there is no evidence that the work has ever been sanctioned by the chief commissioner of highways, and no evidence of any waiver of notice by the defendant, the jur^ is instructed to render a verdict for the defendant.”</p> <p>8. In not affirming the points submitted by plaintiffs.</p> <p>4. In not overruling the defendant’s offer to prove “ that the commissioner of highways, Jacob Shantz, did not approve the work mentioned in the lien, and that when the work -was done he was' commissioner of highways, and gave no authority to do the Work to Emanuel Peters.”</p> <p>5. In overruling plaintiffs’ offer to prove by John McCarthy, who was chief commissioner of highways from July 1856 to July 1858, that he as chief commissioner of highways employed Mr. Peters to do the work in question.</p> <p>6. In overruling the following questions propounded to John McCarthy, chief commissioner of highways, by the plaintiffs’ counsel, viz.:—</p> <p>I. “ Did you employ Mr. Peters to do this work as commissioner of highways ?”</p> <p>II. “ What did you say to your successor, Mr. Andress, relative to the contract with Peters to do this paving ?”</p> <p>III. “ On reporting to Mr. Andress what you had done in giving the contract to Peters, was Mr. Andress satisfied with it or not?”</p> <p>IY. “ Did you inform Mr. Conrad B. Andress that you had employed Mr. Peters to do this paving, and if so, did Mr. Andress approve and sanction this employment of Mr. Peters to do the work.”</p> <p>7. In overruling plaintiffs’ offer to prove—</p> <p>I. That Dr. Burgin, the defendant, waived his right to the notice required by the ordinance.</p> <p>II. That he stated to the workman who was going on with the work that it was all right, to go ahead.</p> <p>8. In overruling plaintiffs’ offer to prove by John S. Rittenhouse, who was commissioner of highways at the time the work in question was done, “ that after the expiration of the thirty days’ notice to defendant, the highway department, by its commissioner, authorized and employed Mr. Peters to do this work, and the commissioner reported the same to the board of commissioners of highways, who approved of the same and</p> <p>9. In overruling plaintiffs’ offer to prove “ that each commissioner had a distinct district to which his duties were confined, and that the commissioner who made the contract with Mr. Peters had the district where this work was done at the time when this work was done.”</p>