Volume 52 — Pennsylvania State Reports

This was a bill by William Shollenberger against Mary M. Brinton. Mary M. Brinton conveyed a lot of ground in Philadelphia to John McDowell, Jr., reserving a yearly ground-rent of $>211.50, lawful silver money of the United States of America.

This was an action of covenant by Thomas Mervine against Henry Sailor, John E. Trout and Edwin G-reble.

This was a hill by Amos Burton and Elizabeth his wife against Amelia Davis, Greorge Williams, and Amos Ellis, executors and trustees, &c., of Benjamin Davis, deceased. “ The main question presented here was heard and decided by my brother Agnew, in Shollenberger v. Brinton, on demurrer to that bill. At present I will follow that ruling, reserving to myself entire freedom of thought and action on the main question, when it comes before this court, in that case and in this. 3.

In equity. This was a bill by John Kroener against William Colhoun. The defendant demurred to the bill, and alleged the following causes of demurrer:— 5. That the ground-rent represented by the said principal sum 'was an estate, and not a debt. 6. That the notes tendered by the complainant were not a constitutional currency, nor lawful money of the United States.

This case came before the court below on case stated in an action by Caroline A. Hays against M. Sandford and II.

This was an action of assumpsit by James Graham, for the use of Thomas Mehn, against James Marshall, John Brown, John Dean, A. M. Marshall and William Walker, who, with Robert McPherson, not summoned, composed “ The Merchants’ and Farmers’ Bank.” The suit was on the following instrument: No. 916. Allegheny, March 24th 1862. If not presented at maturity, it will he continued as a renewal. $14,145, specie. J. C. Porter, Cashier. The pleas were non assumpserunt and tender.

<p>Error to the Court of Common Pleas of Allegheny county.</p> <p>This was an action of assumpsit by John Harvey against James Laughlin, Richard S. Hayes and Henry Laughlin, partners as Laughlin & Co.</p> <p>The suit was on this note:—</p> <p>“ $4160. Pittsburgh, July 26th 1861.</p> <p>“ One year after date we promise to pay to the order of John Harvey, at the Pittsburgh Trust Company, forty-one hundred and sixty dollars, in gold, without defalcation, for value received.</p> <p>(Signed) . “ Laughlin & Co.”</p> <p>The plaintiff averred that on the 18th of December 1862, and at other times after the maturity of the note, he demanded payment of the note in gold, or if the defendants had not the gold, that he would accept United States legal-tender notes, adding the premium on gold, which was then 33 per cent.</p> <p>The defendants, by their affidavit of defence; averred that upon the demand of the plaintiff they tendered him the amount of the note and interest in legal-tender notes, which he refused, and that they have always and now are ready and ivilling to pay him in the same manner; that at the maturity of the note, and at the first demand, the premium on gold was 14J per cent., and at the second demand it was 30 per cent.; that the consideration for the note was notes of banks which had suspended specie payment.</p> <p>The court entered judgment, for want of a sufficient affidavit of defence, for ¡$5002.15, the amount of the note and interest, adding 14J per cent, for premium on gold. This was assigned for error.</p>

<p>The views herein expressed may be better understood by keeping in mind the form of action, and that it is an action of covenant to recover damages for a breach of contract by the defendants, in failing to pay the plaintiff a certain ground-rent which they had contracted to do, “ in lawful silver money of the United States of America, each dollar weighing 17 dwts. and 6 grains at least.” The defendants deny a breach of the contract, and set up performance by pleading a tender of the number of dollars in legal-tender notes of the United States, and the court below held their plea good.</p> <p>I cannot bring my mind to this conclusion, for the reasons which I will state as briefly as the nature of the case will admit.</p> <p>It is not the less true because common-place, that the intention of the parties to a contract, not malum in se, nor malum prohibitum, shall govern it in its interpretation, where it appears, or can be discovered; and in cases where the intent is not patent, while exploring it, the subject-matter of the contract is often a circumstance that may explain much that would otherwise seem inexplicable. That the intention should govern, results from the right that all have in a free country, to dispose of their property and bind themselves in contracts as they please, provided they avoid trespassing on the law or public morality. If they may not, they have little claim to be considered free. They are but automata, speaking the language which state or judicial assumption may permit them, but not their own.</p> <p>Another principle is, that contracts are liable to a modification, or rather to be affected, sometimes by constitutional legislation, but which does not abrogate them or release the parties to them— such as increased taxation, the exercise of the right of eminent domain, changes in the currency, and the like. To illustrate in view of the theory of the defendants in this case, lawful money which may be a legal tender when a contract is entered into, and which may have been in contemplation of the parties as a medium of payment, may be changed and altered, and a different standard of weight and fineness, less valuable, may be adopted in its stead, which, if declared to be a legal tender, will be so. The necessity of the state to do so, and it is constitutionally allowable,’ is superior to individual rights. Such has been the ease in regard to our domestic coins in several instances. By the Act of 1792, the standard weight of the dollar was fixed at 17 dwts. and 8 grains, and this was reduced in 1837 to 17 dwts. and 4 grains. But this did not affect its character as a legal tender in payment of debts contracted prior thereto, because of the principle just stated. Many of such changes have taken place in England, one in which I remember the change in the standard was notified to the people by proclamation, having emanated probably in an order of the Privy Council. The. case of the Mixed Money, to be found in Sir John Davies’s Reports (Irish) 48, in the reign of King James I., is in point to this principle, that a contract may be satisfied by a payment of what is a legal tender at the time the contract is to be performed or the debt falls due, although in depreciated money.</p> <p>This is insisted on by the defendant, and is true as a principle. But is their case within it? I certainly do not think it is. It has no relation to contracts payable in specific articles. It has no bearing on such cases. If payment be agreed to be made in wheat, iron or silver, by weight, it affects not them, for it has no reference to the medium established in individual cases by parties, but only to the general currency of the country. Payment in kind or specific articles must be made as agreed, and the rule is, that the increase of price of the articles, or the difficulty in procuring them, will not excuse the contractor from his obligations to deliver or pay the value thereof at the appointed time of delivery. Every man takes the risk of the performance of his special contracts. “ It is the duty of the promissor,” says Story on Cont., § 4.63, “well to weigh the difficulty or improbability of his consideration before he binds himself to perform it, and the law will not help him to avoid duties which he has deliberately imposed upon himself, so long as they are possibleand see IB East 201; 15 M. & W. 261.</p> <p>These are general principles about which there can be little dispute. Was the contract of the defendants payable in money and within the first class of principles, or in a commodity or specific article, and within the last ?</p> <p>At the date of their contract, the 29th March 1839, and since, silver dollars weighing 17 dwts. and 4 grains, would have satisfied their contract if the covenant be not special. We ought to presume that they knew this; and we must do so, for the contrary is not pretended. We must also assume that they intended that it should not be solvable in the standard coin which was a legal tender, but in something else, because they have said so, and by saying so, they have demonstrated their intention to take their case out of the ordinary rule fixed by law for its satisfaction, and have brought it under the rule of the contract, which is the law of the case; being neither illegal nor against the policy of the law. The special character of the contract is manifest in the stipulation in regard to weight. The fineness was fixed by reference to the dollar of the United States of America. So many times 17 dwts. and 6 grains of silver of this dollar, or its standard fineness, was what was to be paid annually, if we regard the contract at all. And why shall we not ? Where is our authority for saying that if even the dollar of 17 dwts. and 4 grains had been tendered, the plaintiff would have been obliged to take it, and entailed a loss of over $2 per year, or since the date of the contract equal to about $60 ? The sum is small, but there is no law forbidding people to deal closely about small matters, and their contracts are to be regarded as in other things, unless within the rule of de minimis. But the calculation serves to show that the contract was special and excludes the idea of payment in the ordinary currency of silver or gold, and is used for this alone.</p> <p>Another consideration that ought not to be overlooked, is that the parties bargained for a medium not used in mercantile or trading transactions at the time. The money so used was of the legal standard and weight, as fixed by the Act of 1837. That they did not mean this as the medium of satisfaction for their contract admits not of a doubt, because they contracted for a different thing to be paid and received in payment. Not an impossible thing, nor a difficult thing, hut a different thing. . The defendant agreed to risk the difficulty of performance in that medium, and they have not the right to plead non in hcea foedera veni. They should comply specifically or its legal equivalent.</p> <p>The suggestion that the stipulation as to weight was to meet the diminution in the value of the coin by abrasion, is not satisfactory as accounting for the specification in the contract. It would be entitled to consideration, if the payment had been provided to be in dollars of the mint weight, hut it was not, as shown. Besides, coins reduced below legal weight by clipping, sweating, abrasion or any other process, are not legal tenders; it was therefore a provision not necessary to guard the rights of the plaintiff, if the contract was intended simply to be dischargeable in ordinary legal coin. There is no accounting for the terms of the contract, excepting that they were intended to be special, and to produce so much silver annually. To give it this construction works out the intentions of the parties, and is attended with no more difficulty than if it had been made payable in so many bushels of wheat or tons of iron. The articles or their equivalent would in such cases be the rule. We have no right to assume that the plaintiff would have parted with his property, or the defendants could have acquired it, excepting on the very terms agreed upon : but if we affirm this judgment, we disregard the stipulation to pay in silver of such weight and amount as the parties agreed upon, and we adopt a principle alien to the contract, and that it is an ordinary debt; as much so as if secured by due-bill or note, and payable not only not in silver of any weight, but in promises to pay, being notes of the United States. This is not an execution in any sense in my judgment of the contract. It was not paper, no matter how good, the plaintiff contracted for, but silver. He is entitled to a substantial compliance with his contract on this basis and this alone, for such is the contract. There are many cases of contracts payable in specific currency, called “ money” and “ dollars,” which have been enforced as special contracts, the word dollar not carrying the contract into constitutional currency or legal-tender money. In T Mo. 591, is the case of Farwell v. Fay. It was a case of this kind, and there is a single remark by Scott, J., so applicable to the case in hand, that I cannot forbear to quote it. “The parties,” says the judge, “ must have had this” — the difference between the currency of the law and the contract — “ in mind, or they would not have deviated from the usual course, but would simply have made the bill payable in dollars.” The case of Pilmer v. Branch Bank at Des Moines, Law Reg. (1865) 336, is an interesting ease on the subject of contracts payable in currency, to which a collection of all the cases on the subject in a note is appended, and goes far to prove the ground herein contended for.</p> <p>But I must not further enlarge ; I am of opinion that the tender of the notes in question was not a compliance with the defendant’s contract, and that the plaintiff was entitled to recover in damages what the silver was worth, with interest when suit was brought.</p> <p>The judiciary of a state is neither prohibited nor excused from pronouncing an Act of Congress when involved in any issue regularly before them unconstitutional and invalid, if they so believe it to be. It is true, their decision would not be a finality, and would stand in relation to the Supreme Court of the United States like a decision at Nisi Prius, liable to be reviewed, reversed or affirmed ; but until reversed, it would be the law within the jurisdiction of the court pronouncing judgment. There is no insubordination, therefore, in determining adversely to the constitutionality of an Act of Congress, when it has not been declared constitutional by the ultimate tribunal, the Supreme Court of the United States. No such decision has been made on the subject before us now, nor has this court heretofore passed upon it. It is well known that the Act of Congress of the 25th February 1862, has been approved by several of the courts of the last resort in some of the States ; by a majority in the Court of Appeals in the state of New York, in Meyer v. Rosevelt, reversing a decision of the Supreme Court, made in March 1868, if I do not mistake. So in Massachusetts, and perhaps in several other states. In Indiana, in The Bank of Indiana v. Reynolds, Law Reg. 1865, &c., a contrary doctrine was held. With us in the District Court of Philadelphia, in this case, the decision was in favour of the constitutionality of the act, and so maintained by a majority of the court; and also in Trott v. Borie; but the decision of the majority Avas in this case combated in an able opinion by Sharswood, president. In the Circuit Court of the United States for the eastern district of this state, in Morrison v. The Reading Railroad Co., Judge CadAvalader delivered a learned opinion against the constitutionality of the law, while Grier, J., confined his opinion in the case to other points which he considered determined it. It is plain that great diversity of opinion exists in regard to this question, and that we could not, if we would, avoid a determination of it, there being no decision up to this time in the ultimate tribunal, the Supreme Court of the United States.</p> <p>As it is my duty as a member of the court to do, I will give the result of my best rejections and conclusions on the question as concisely as possible, stating well-known and adjudged principles, without the trouble of citing eases.</p> <p>It may be regarded as judicially settled that Congress can lawfully exercise only such powers as are expressly granted in the Constitution, or that are necessarily incidental to some power. Indeed such is in substance and essence the express rule of the Constitution itself. Art. X. of the Amendments provides that “ the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or the people.”</p> <p>It is obvious, therefore, that in order to ascertain what powers are conferred upon Congress in cases of any given claim of power, we must first see if it be express; and if it be not, ascertain if possible if it is necessary to the execution of any other'express power — not absolutely necessary on the one hand, nor necessary, in the sense of convenience, on the other. Story on Const., § 609 but simply necessary and proper to the healthful exercise of the power to which it is an incident. But the necessity is not to be tested by individual instances of extreme and doubtful exercise of powers by Congress. To refer to such a standard is simply to yield the construction of the Constitution in the particular to be ascertained, to Congress; and it is not the constitutional arbiter in such cases. That would be to constitute it the sole judge of its own powers.</p> <p>The power to be sought for here, is that under which Congress authorized the treasury department to issue notes of the United States, to circulate as money and be a legal tender in payment of debts, some of which were offered as a tender in discharge of the defendant’s covenant. It must be somewhere if it be lawful.</p> <p>That the power to issue such notes and declare them a legal tender, and thus make them money, at least so far as the characteristics of money go, is express in the Constitution, no one will pretend. If, therefore, it exist at all, it must be incidental to some other express power.</p> <p>There is an express grant to Congress in the Constitution “ to coin money and regulate the value thereof, and of foreign coin.” This is the sole express grant on the subject of making money of any kind. It cannot be necessary to multiply words and adduce definitions to establish the idea that the words “ to coin money,” embrace the idea of making it of metal. It implies this as plainly as if it had been so said — words could not have made the thought plainer. And they imply necessarily the general process of manufacture, namely, that it was to be accomplished by the use of chemicals, crucibles and dies, and not by paper, ink and printing-presses. Nobody, whose opinions are worth anything, would deny this; and therefore, so far as the grant goes, we may safely conclude it does not embrace the power to .make and issue paper as money. A construction that would substitute printing for coining, and paper for metals, as equivalent things, would find, I think, but few advocates.</p> <p>As the power to issue paper money, if it exists, is not an express power, to what does it belong as a necessary or proper incident ? I esteem it an argument of weight here, that among its warmest advocates it is vagrant; sometimes claiming to rest in one part of the Constitution, and then in another, and finally when no safe ground is found, assuming to be independent of and higher than the Constitution, existing in the necessity of things. Sometimes it is claimed to be necessary in the regulation of commerce ; then in the raising and maintenance of an army and navy; then as a mode of borrowing money; and finally as a necessity belonging to all powers alike. Let us look for a moment at these claims.</p> <p>It ought to be enough to say, of the first of these pretensions, that the Act of Congress is not based upon any supposed required regulation of commerce, nor has it been suggested that anything of the kind was in view in prompting the issue of legal-tender notes. Had it been even so, that money was needed for such a purpose, and paper was needed to execute the purpose, why make it a legal tender ? The government could not compel foreigners to accept it. Treasury notes in the ordinary form would answer quite as well, if paper would answer at all; but it is in just such a purpose paper money would not answer at all. Its fluctuations would defeat the object; at most it would be but the representative of values at home and not abroad ; there could be no regular exchange adopted in regard to it as there could with a metallic standard. I throw out of view any question of regulating commerce between the States, that was not needed at the time. But it is a waste of time to contest the necessity of paper money as incident to this power.</p> <p>To raise and support an army and maintain a navy, is an express grant. ' The indefinite increase to meet emergencies was anticipated by the framers of the Constitution, and the means of support was provided for this condition of things, as amply as in ordinary times. The power to coin money; of taxation without limit when needed; and the power to borrow, are expressly given, and liable to be devoted to these ends. These powers being exercised would reach into every vein and artery of wealth, and drain them, if necessary, to maintain the government in its hour of trial, and much more readily in ordinary seasons. They must have" been thought adequate to every emergency; for emergencies were anticipated, as other provisions abundantly show, and they have proved sufficient through many trials for more than eighty years. How then can the power now exercised be claimed as a necessary means to an end, and in the presence of these undoubtedly sufficient means, in other words, as incidental to the war power of raising and maintaining an army and a navy ? The necessary means of support are expressly given, and not shown, and not pretended to have been shown, to be inadequate. The word necessary does not mean convenient merely. The express grant to make all laws which shall be “ necessary and proper” for carrying into effect the expressly granted power, does not mean such as are merely convenient. They are not only to be necessary, but at the same time they must he proper to the occasion calling for the exercise — Story on the Const. §§ 601-4. This clause, which is often misunderstood — sometimes purposely — only gives the right of legislating on the subject of express powers, so as to supply proper and necessary aids not defined in the Constitution, which is necessarily general in its provisions. This shows how anxious were its framers to leave as little to implication as possible ; for even the right to legislate, which might be an implied one, we think, on any inexpress grant, was thought ought not to be left to rest on implication, and hence the power is expressly given, but limited to such things only as are both necessary and proper. No sound mind would contend for a moment, I think, for the idea that an incident might exist under this authority, entirely different and distinct from those suitable to the character, and proper to execute the principal in view of the nature of the government established. To make and issue paper as money, when the Constitution was established in this particular, only on the power and basis of money to be coined, and therefore metallic, I think departs from the nature of the government in this particular, ^nd palpably transcends the power conferred by the Constitution, unless indeed we may persuade ourselves that authority to do'a thing in one way means quite another, or many others, or whatever may be convenient.</p> <p>By a sort of metempsychosis, the authority for paper money— not treasury notes, but paper called money — is supposed to exist under the granted power to borrow money. ,1 admit that the Constitution is not to be construed technically, but in the ordinary and usual acceptation and meaning of its language: 7 W. & S. 127. But there is no technicality in the position that to borrow is to establish the contract relation of debtor and creditor. The consideration for the promise of the borrower to pay, is the money he receives from the lender, and this is always in a business transaction to be with interest, and at some specified time. The notes now under consideration are promises to pay, without time and interest, without any reference to money received, but, as we know, in payment of property received or services rendered, and which the party advancing the property, or rendering the services, could not refuse to receive as money. They are, therefore, not .certificates of loan, nor do they acknowledge to be securities for loans made. They are no part of the machinery used in borrowing and lending; and to support or attempt to support their legality, on the principle of borrowing money, would be far, very far indeed, from rendering and interpreting the clause in its usual, common and ordinary meaning; it would be more than a technicality. As a means of borrowing money, the authority to issue these notes cannot find shelter in this haven of the Constitution.</p> <p>I have no doubt, and therefore I admit, that in the exercise of the power to borrow money, it may be authorized either in large or small amounts, as the government may determine ; to be accompanied with appropriate securities. But to be within the constitutional permission, the entire transaction must belong to the contract or transaction of borrowing. It would be a fraud on the Constitution, or perhaps more properly, upon the people whose instrument it is, to issue a thing to be called and provided with the attributes of money not authorized, and thus claim authority for the Act, by calling it something else that is authorized by the Constitution. I agree that the securities for loans may be bought and sold, and pass from hand to hand ad libitum, but still they must be securities for loans, a sort of government stocks, and not money. We have been borrowing money in large amounts these four years past, but the form of the transaction has been to give our bonds to the lender, redeemable after a certain number of years, with a certain rate of interest. These transactions, both in form and substance, separate themselves most widely. The one is borrowing in a legitimate form. The other is creating money out of paper. The one has the warrant of the Constitution for its support, the other has not — at least in my opinion.</p> <p>If anything outside of the Constitution itself were needed to convince us that no such power, either overt or covert, is contained in it, it may be readily found in the contemporaneous history of the times in which it was framed and adopted. In the Madison Papers, vol. 2, p. 1232, the original report to the convention of the clause to borrow money is given. “ The legislature of the United States,” says the report, “ shall have power to borrow money, and emit bills of credit of the United States.” We have a most instructive account of the disposition in the convention of that portion of the report “ to emit bills of credit of the United States,” in the letter of Luther Martin to the House of Delegates of Maryland, addressed to Mr. Dyer, the speaker. That distinguished man was at the time the Attorney-General of Maryland, and had been an active and able member of the convention that framed the Constitution. The letter may be found at page 381, vol. 1, of Elliott’s Debates in the Convention.</p> <p>He says: “ When we came to this part of the report a motion was made to strike out the words ‘ to emit bills of credit.’ Against the motion we argued that it would be improper to deprive Congress of that power ; that it would be a novelty unprecedented to establish a government which should not have such authority; that it was impossible to look forward into futurity, so far as to decide that events might not ha¡)pen that should render the exercise of such a power absolutely necessary; and that we doubted whether, if a war should take place, it would be possible for the country to defend itself, without having recourse to paper credit, in which case there would be a necessity of becoming a prey to our enemies, or of violating the Constitution of our government; and that considering the administration of the government would be principally in the hands of the wealthy, there would be little reason to fear an abuse of the power .by an unnecessary or injurious exercise of it. But, sir, a majority of the convention, being wise beyond every event, and being willing to risk any political evil rather than admit the idea of a paper emission in any possible case, refused to trust this authority to a government to which they were trusting the most unlimited powers of taxation, and to the mercy of which they were 'willing literally to trust the liberty and property of the citizens of every state in the Union. They erased the clause from, the system.”</p> <p>This is clear testimony from a disappointed advocate of the power to issue paper money, for that is what the exscinded words meant, and who for this and other reasons desired to see the form of government proposed, rejected by the people of Maryland, his constituents. So convinced, does it appear, was this distinguished man and others in the convention, that with this clause out— nowhere else to be found in the “ system” proposed — they claimed that, if ever exercised, as they supposed it would be in time of war, it would only be in violation of the Constitution itself. This is like prophecy realized. It was stricken out, and left simply the power to borrow money, bereft of its associate power “ to emit bills of credit.” Now what is meant by bills of credit is defined in many places. In Craig v. The State of Missouri, 4 Pet. 431, Chief Justice Marshall says: “ To emit bills of credit, conveys to the mind the idea of paper intended to circulate through the community for its ordinary purposes as money.” See also 4 Kent 407; 4 Dall. XXII.; Story on Const. § 1362 to 1.364.</p> <p>If Mr. Martin was not mistaken in describing the hostility of the convention to a power in the Constitution to emit bills of credit, in other words paper money, a thing well known and disastrously tried by the States and the Confederation, it is incredible to suppose that it was notwithstanding still intended to retain it in the system in an incidental form. The desire was so intense that it should not exist, that the majority, says he, “ were willing to encounter any political evil rather than the idea of a paper currency in any possible case!”</p> <p>It is with just such an issue I am endeavouring to deal; for the Act of Congress, whose validity I deny, says of the paper authorized to be issued under it, that it shall be' “ lawful money, and A LEGAL TENDER.”</p> <p>The Madison Papers prove the same thing. . Curtis, in his history of the Constitution, vol. 2, p. 865, says, referring himself to these papers: “ Fears were entertained (in the convention) that an absolute prohibition of paper money would excite the strenuous opposition of its partisans against the Constitution ; but it was thought best to crush it, and accordingly the votes of all the States but two were given to a proposition to prohibit absolutely the issuing of bills of credit.” Is it possible that, after all this, the power still lurks within it ? For my part, I think not.</p> <p>I admit that extraneous and even contemporaneous testimony that such a power was not intended to be granted to Congress will not prevail against an obvious construction, or clause in the instrument indicating its existence ; but when that is so doubtful as not to be found in any definite form either as a principal or an incidental power, what was done showing its intended exclusion is eminently proper and an important aid in interpreting what might seem otherwise doubtful. I have already shown, or endeavoured to do so, that it is not a necessary incident to any power, requiring money to carry it into effect, for that can be had by borrowing, taxing and coining; and, furthermore, that it would be an improper incident to other powers to which it has been deemed to belong. It exceeds my feeble capacity to discover a place for it anywhere in the Constitution, and I have never met with any one who eou»ld successfully demonstrate that it is there, or prove to the satisfaction of all where it is, or even to any considerable number where it may be found.</p> <p>The last ground upon which “ it is justified by its friends,” and not by any means the least common, is the broad platform of necessity — the principle on which Mr. Martin said it would be exercised if ever, but then in violation of the Constitution. This position has the advantage of being set free of restraint or trammel, constitutional or judicial. It is a proverb, “ necessitous non habet legem.” It knows no law but that which it creates. Surely this will not be insisted upon as a safe ground upon which a limited government may stand. It is exactly an antagonistic principle. If such a plea be entertained, its operation need not be expected to be limited to the issue of paper money in emergent times. It may as well extend. to any other subject desired by those who happen for the time being to be in power, to the destruction of the safeguards around life, liberty and property, and this would be despotism. I pray that the day is far distant when the successful appeal to such a principle may be made to justify any unauthorized action on the part of the representatives of the people.</p> <p>I am quite free to admit that Congress has a large discretion in choosing the means to be employed in executing the various powers of our government. But this discretion must be about means sanctioned by the Constitution. For instance, if the act to be performed require more money than the ordinary capacity of the treasury will afford, they undoubtedly may resolve either to borrow the required sum, or raise it by taxation, or perform it only as fast as the ordinary resources of the treasury will permit. Rut it could not be done by the exercise of a power to confiscate the property of individuals, and apply the proceeds to the purposes intended : or by compelling the people in time of profound peace to perform manual service in executing it. There is no allowable choice between such alternatives. They must be constitutional, or the alternatives must not be exercised.</p> <p>No government on earth ever had a harder strain upon its energies than ours has had during the last four years. But I believe, however much alarm may have conduced to the resort to measures not entirely reconcilable with the Constitution, yet that its clearly defined powers being fully exercised, would have been ample for all the emergencies of the times. Powers to provide the sinews of war were. palpable on the face of the Constitution: namely, in the power to borrow money and to tax ad libitum. These resorts would, as already said, reach every point where supplies might be obtained. Besides, too, the right to deal on the credit of the government and to coin money existed. These seem like ample powers. But this I am not obliged to deal with. It is the constitutionality of the Act of Congress with which I have to do ; and if this course of reasoning should result in a denial of the legality of the notes in question, it would not be the fault of the principle, but the want of authority to pass the Act. In such an event it would be for the people to adopt some means to assuage or mitigate the inconvenience that would 'result. But about that I need not trouble myself. I accept, as the rule governing me, the axiom that if it was worth while to frame a constitution it is a duty to preserve it.</p> <p>Nothing but the presence of the convictions of duty could have induced me to undergo the labour of preparing an opinion on a subject so largely and ably discussed by others more competent to do justice to it. I am of opinion, without saying more, that the tender was insufficient in all these cases, and that the judgment should be reversed wherever the tenders were held to be sufficient.</p>

<p>In Shollenberger v. Brinton, a rule was afterwards entered to show cause why the decree in that case should not be changed to a decree reversing the decree below, and dismissing the bill. A similar rule was entered in Mervine v. Sailor.</p>

This was a scire facias sur mortgage, issued December 2d 1865, by John G. Pailaret, Richard T. Pailaret and John G. Booty, assignees of William L. Schaffer, against William R. Dutton.

<p>1. Devise to a daughter for life, at her death to be sold and the money from the sale “ to be equally divided between the lawful issue of my said daughter Esther (if any she should leave, and if more than one). But if my said daughter Esther should die without leaving lawful issue, then the money shall be equally divided between all my other children, or their respective legal representatives.” Esther had an illegitimate daughter at the date of the will, who was afterwards, in her mother’s lifetime, legitimated by Act of Assembly. Held, that she was “ lawful issue.”</p> <p>2. The daughter was married and had children before she was legitimated, and died in Esther’s life, who afterwards died leaving her daughter’s children. Held, that these children took as “ lawful issue” of Esther.</p> <p>3. If there be nothing in a will to limit “ issue” to children, it is synonymous with descendants.</p>

<p>Error to the Court of Common Pleas of Northampton county.</p> <p>There were several writs of error, considered together, involving the same principles, the proceedings in the court below having been commenced by petitions exactly similar in all the cases.</p> <p>James McKeen, by his petition, set forth that the Delaware Division Canal Company, the plaintiffs in error, purchased the Delaware Division of the Pennsylvania Canal under the Act of April 21st 1858, for the sale of the state canals; that at the time of the sale he had a just claim against the Commonwealth for damages to his lands, water-power, &e. The damages were occasioned by the Commonwealth raising the dam at the mouth of the Lehigh river in 1840 and 1841, higher than it was first constructed, whereby the water of the river was backed on the lands, water-power, &c.; and prayed for viewers, under the Act of March 26th 1860, for assessing, &c., damages on the Delaware Division.</p> <p>Before the viewers it appeared, by evidence submitted to them, that this petitioner, with others, had applied in 1842 to the canal commissioners for damages for one year to their mills, &c., by the erection of this dam; but the canal commissioners resolved that the damages should not be allowed, because the advantages were equal to the disadvantages. In 1856 they petitioned the canal commissioners “ to abate the nuisance,” occasioned by raising the dam, and submitted a written argument by their counsel, Hon. J. M. Porter.</p> <p>The same gentleman wrote to one of the canal commissioners, asking to lay evidence of the circumstances before the board. This canal commissioner replied to Mr. Porter, that in March or April 1857 the board would visit the premises to view and take testimony.</p> <p>The viewers reported, assessing McKeen’s damages at $3473.40.</p> <p>The following exceptions were filed to the report:—</p> <p>1. The claim of the plaintiff being purely and exclusively for consequential damages caused by the alleged flooding of water back upon his lands and mill, and there being no legislation directing either the Commonwealth or the defendant to pay any claims for consequential damages, the viewers should have reported and awarded in favour of the defendant, and erred in reporting in favour of the plaintiff.</p> <p>2. The plaintiff having, in the year 1842, after the dam of 1841 was erected and completed, preferred his claim for damages,alleged to have been occasioned by the erection of said dam, to the Board of Canal Commissioners of the Commonwealth of Pennsylvania, who, on the 1st of July 1842, rejected and disallowed the claim, this adjudication by the canal commissioners was a final determination, by which the plaintiff is precluded from recovering any damages for that erection or its maintenance, and therefore, the viewers, before whom the said adjudication was fully proved, should have reported and awarded in favour of the defendant.</p> <p>The evidence before the viewers was submitted to the court on the hearing of the exceptions.</p> <p>• The court overruled the exceptions, and directed judgment on the report.</p> <p>The errors assigned were, overruling the exceptions and entering judgment on the report. '</p>

<p>1. The articles, conditions and objects of an association incorporated by the Supreme Court are their charter, and have the same force and effect as if specifically granted by special Act of Assembly; the charter cannot be questioned collaterally.</p> <p>2. In such charter, where the power of expulsion is conferred and a member in accordance with its requirements has signed the articles, he is bound by them, and the fitness of the objects, &c., is not a subject of judicial inquiry.</p> <p>3. When such member has been regularly tried and expelled, the sentence of the society, acting judicially, cannot be inquired into collaterally, nor can the merits of his expulsion be re-examined.</p> <p>4. In an association one of whose objects was to provide assistance for sick members; to feign sickness or draw relief after recovery is subversive of the fundamental objects of the association — an act which tends to its destruction, and is within the power of expulsion by the association.</p> <p>5. A return to a mandamus must set forth distinctly and certainly — not argumentatively, inferentially or evasively — all the facts essential to the conviction, both as to the cause and mode of proceeding.</p> <p>6. A return to a mandamus that the relator was, according to the constitution and by-laws of the association, “ tried and convicted of the charges,” is not sufficient, without showing that the association took proofs which they deemed to be sufficient evidence.</p> <p>7. A trial for an offence against the laws of such association is not an ecclesiastical trial concerning matters of conscience, but an ordinary secular affair. Quaere, how far such trials on Sunday comport with our legislation and institutions.</p> <p>8. Jews are bound to observe the civil regulations made for the keeping of the Christian Sabbath.</p>

<p>Appeal from the decree of the Orphans’ Court of Philadelphia, confirming the report of the auditor on the account of the executors, &c., of Frederick Lennig, deceased.</p> <p>Agnes Lennig, the appellant, is the widow of the decedent. The decedent left a will, by which he authorized his executors to sell his real estate, and divide all his estate between his widow and nine children. The widow elected to take under the intestate laws. The testator at the time of his death owned á house and lot on Walnut street, and one on Poplar street, Philadelphia. The Walnut street house was subject to a mortgage of $15,000, which was given by the testator himself. The Poplar street house had been bought by the testator subject to two mortgages, one of which for $25,000 remained unpaid at his death.</p> <p>The deed to the testator, dated February 17th 1863, states the consideration thus: “ in consideration of $20,000 lawful money of the United States, paid, &c., and of the assumption of the said Frederick Lennig of the two mortgages herein afterwards particularly mentioned, being altogether the sum of $57,000.” The 1lahendum of said deed grants, subject to the lien of said mortgages; and the receipt for the consideration-money, is as follows: “ Received, &c., $20,000, the cash consideration therein mentioned, which, together with the assumption of the mortgage-debts of $12,000 and $25,000, is the full consideration of $57,000 above mentioned.”</p> <p>The Walnut street property was sold by the executors; they paid the mortgage of $15,000, and secured one-third of the purchase-money on the property for the widow’s dower. They paid the other mortgage out of the personal estate, and took an assignment of it — they ask credit for both of these sums in their account. No demand had been made by the holders for payment of either of the mortgages. The auditor allowed credit for both sums. Mrs. Lennig filed exceptions to the report for allowing these credits, “ and charging one-third part thereof to the share of the personal estate of the exceptant.” The report was confirmed by the Orphans’ Court, which was the error assigned.</p>

<p>Appear from the Court of Nisi Prius.</p> <p>This was a proceeding in equity by Caleb S. Maltby for himself and others, plaintiffs, against the Reading and Columbia Railroad Company, defendants.</p> <p>The plaintiffs are non-residents of this state, and are holders of coupon bonds, payable on the 1st of March 1862, with interest thereon, at the rate of T per cent, per annum, payable at the Union Bank in New York, semi-annually, on presentation of the interest-warrants thereto annexed. The bonds are part of a series secured by a mortgage on the road, &c., of the defendants.</p> <p>The plaintiffs allege in their bill that they presented their warrants for payment, that the defendants refused to pay them in full, but retained from the interest an amount equal to three mills on every dollar of the principal, which they claim a right to do as a tax imposed by the laws of Pennsylvania: the plaintiffs deny this right, and pray for a decree that the defendants pay them the whole amount and pay the tax, if any, themselves.</p> <p>The defendants admit that they retained the tax of three mills, &c., and have paid the amounts to the state, by virtue of the Act of April 29th 1864, § 32, Purd. p.. 949, P. L. 497; Id. § 34, Purd. 950, pi. 120, P. L. 499 ; Act of April 30th 1864, § 3, P. L. 219.</p> <p>The case came up on bill and answer, and the bill was dismissed pro formé, without argument, — no opinion was delivered.</p> <p>The errors assigned are, dismissing the bill, and not decreeing the relief prayed for.</p>

This was au action of assumpsit by Angelina Palethorp, trustee of the estate of John H. Palethorp, deceased, against ■ Gustavus Bergner and Christian Muehleck, trading as Bergner & Muehleck, for failure to comply with the agreement hereafter given. Palethorp, the decedent, died seised of the “ Military Hall,” in Library street, Philadelphia.

<p>Appeal from the Court of Common Pleas of Philadelphia, in equity.</p> <p>The bill was brought by Henry M. Naglee, John Naglee and Joseph M. Naglee against Peter A. Keyser, Alfred Eitler, Charles M. Wagner and Thomas Hart, trustees, Samuel Megargee and Margaret his wife, James Burk and Mary his wife, and Andrew J. Catherwood and Ellen 0., his wife.</p> <p>The bill avers that John Naglee, by his will, with two codicils, made part of the bill, proved February 10th 1852, gave all the residue of his real and personal estate in trust for joint management and improvement, a portion thereof for ten years from his decease, for the equal benefit of his three sons, the complainants, and the said Margaret, Mary and Ellen 0., his daughters ; other portions to be held in trust for twenty years from his decease : that the surviving trustees appointed Thomas ITart and Alfred Fitter, trustees, in place of Elhanan W. Keyser and William B. Hart, deceased, and Charles M. Wagner, in place of John Naglee, discharged at his own request: that the testator’s widow is dead, and more than ten years have elapsed since his death, and that the trustees had unanimously resolved that in their opinion it is for the benefit and advantage of his estate and for the interest of his children, that the estate should be divided, so that the share of each should be set out in severalty as authorized by the will, and that the income of the estate accrued since the end of the ten years, should be •appropriated to the trusts mentioned in the will other than improvements, &c.: that the testator provided no mode of making the division: that as there is a continuing trust for the daughters’ lives, and there are real and personal properties to be divided, and the complainants are entitled under the will, &c., to have a division'of their shares in severalty of the estate now divisible, and have no remedy but by bill in equity for the partition thereof, which does not include that directed to remain in trust for twenty years: and praying for partition of the real and personal estate, and the proceeds of the real estate sold, between the complainants and their sisters.</p> <p>It also appeared by the will and codicils, that in case of vacancy amongst the trustees, the remaining trustees should fill the vacancy, and that at the end of ten years “ or at any time thereafter, if, in the opinion of any trustees, it will be for the benefit and advantage of my estate and for the interest of my said children, that the said estate be divided amongst my said children: I hereby authorize the same to be made, so that the share of each may be set out in severalty.”</p> <p>Keyser, Wagner, Fitter and Hart, trustees, answered, substantially admitting the averments in the bill, and submitting themselves to the court.</p> <p>James A. Burk and Mary his wife answered, admitting distinctly the averments of the bill, and submitting themselves to the court.</p> <p>Megargee and Catherwmod and their wives answered, admitting the introductory averments, and charging, that the new trustees were appointed against the protest of these respondents ; that one of the trustees is inexperienced and incapable, and the others strangers to the interests of the respondents, and incapable of exercising necessary discretion and vigilance; that if the resolution to divide the estate was adopted — which they ask the complainants may be required to prove, if they deem it material — it was passed by the new trustees after they had received respondents’ -written protest, and in violation of their duties, without examining whether it would be for the benefit of the estate and children that it should be now divided; that the resolution was not the result of sound judgment and discretion, and not a compliance with the instructions of the testator, and averring that the decision prayed for would be detrimental to the estate, and a destruction of the respondents’ interests ; that the intention of the testator was to keep his real estate in his family, and a partial partition at this time would defeat that object, and that a partition of the property proposed now to be divided cannot be made so as to set apart each share in severalty; that the trusts for the sons have not ceased; that the estate' demised to them was not to be liable for their debts, “ which heretofore or shall hereafter be contracted and that tbe intent of the testator can be made effectual only by keeping the estate in trust during the lives of the sons; that the bill is multifarious, containing two distinct matters — one as to the real estate, the other as to the personal estate: that the trustees have no power over the personal estate.</p> <p>The complainants filed a general replication.</p> <p>Proofs were taken, and after argument the court decreed, that partition be made between the parties in said bill mentioned, according to their respective interests therein mentioned and described, and that the matter be referred to a master and commissioners, “ who shall divide and make partition of the lands, tenements and personal estate, and value the same, and ascertain the amounts which shall be charged on the realty for owelty, or which shall be paid to any party who shall receive no share, or less than an equal share of said real and personal estate; and the said master is directed after such partition and valuation to award and allot the shares and purparts; and in case the same cannot be divided into as many shares as there are parties entitled, to award and allot the amount to be paid or secured to such as shall receive no allotment of a share, and the times when such payments and any owelty shall be paid, and the purparts out- of which they shall be payable; and that said master make report of the matters aforesaid to the court.”</p> <p>This decree was the error assigned.</p>

By an Act of Assembly passed February 20th 1863, three commissioners were appointed to lay out a state road from Phoenix-ville, in Chester county, and leading to a bridge recently erected by the Black Rock Bridge Company over the river Schuylkill, to a point on the Perkiomen and Reading Turnpike in the village of the Trappe, Montgomery county.

Certiorari by the Perkiomen and Reading Turnpike Company, The Directors of the Poor of- Montgomery County, and Jacob Tyson et al. The proceedings in relation to this road are stated in the foregoing case, the errors assigned being the decree of the court below dismissing the exceptions to the report of the commissioners on the state road: supra, p. 161.

<p>1. If two clauses in a will are irreconcilable, the latter is to be adopted as the latest expression of the testator’s mind; but this is not to be done if it be possible to give effect to both consistently with the main design of the testator.</p> <p>2. It should appear that the repugnant clauses have relation to the same subject-matter. Per Woodward, P. J.</p> <p>3. An obscure will construed, and apparently repugnant clauses reconciled.</p>

<p>1. The charter of a railway company provided that when the dividends exceeded six per cent, per annum on the capital stock, six per cent, on the dividends should be paid to the city. Held, that the capital paid in and not the authorized capital was intended.</p> <p>2. A supplement provided that the part of the charter as to “ tax on dividends * * shall be so construed as to apply to the authorized capital of the company.” Held, that this provision is prospective.</p> <p>3. Held, also, that the payment to the city was to be on the whole dividend, not merely on the excess over six per cent., and that interest is char-geable on the sums to be paid to the city from the time they were due.</p>

This was an amicable action between the Commonwealth and Joseph C. Strode, executor, &c., of Caleb Strode, deceased, in which a case was stated for the opinion of the court. Caleb Strode died in February 1865, having made his will, proved February 22d 1865, by which he gave, inter alia, all the residue of his estate to his sisters Edith and Esther.

<p>Error to the Court of Common Pleas of Bucks county.</p> <p>This was an action of debt by the Commonwealth of Pennsylvania against Thomas W. Clymer, executor, &c.,of Francis Clymer, deceased, in which a case was stated for the opinion of the court. Francis Clymer died on the 4th day of April 1864, leaving a will, of which Thomas W. Clymer is the executor.</p> <p>Part of the personal estate of the decedent, was $9000 of United States 5-20 bonds, appraised at par. The whole of the testator’s estate was given to collateral heirs. The executor paid the register of wills, collateral inheritance tax on the appraised value of the testator’s real estate and on the clear value of the personal estate, with the exception of the item of $9000 U. S. 5-20 bonds, above referred to.</p> <p>“ The question for the opinion of the court is, whether the defendant is bound to pay the Commonwealth a collateral inheritance tax upon that part of the decedent’s estate which consists of the United States 5-20 bonds. If the court shall be of the opinion that the $9000 of United States stock is subject to tax, judgment is to he entered for the plaintiff for $450. But if the court shall be of the opinion that the United States stock is not subject to such tax, the judgment is to be entered for the defendant.”</p> <p>The court below (Chapman, P. J.) delivered the following opinion:—</p> <p>“ It is conceded that an appraisement, unappealed from, does not fix the decedent’s estate with a liability to pay a collateral inheritance tax thereon, hut the owner of the estate may deny the liability in answer to a scire facias issued to compel payment of the tax assessed. Nor will the position he denied, that a tax upon the stock of the United States cannot he levied by a state, consistently with the constitution and laws of the United States, and it may be admitted that the proviso of the Act of February 25th 1862, exempts from state taxation all bonds or other securities of the United States. But is such a thing now contemplated ? The collateral inheritance tax law imposes a tax or duty of $5 on every $100 of the clear value of all estates, real, personal and mixed, of every kind whatsoever, passing from any person, who may die seised or possessed of such estate, being within this Commonwealth, by will or under the intestate laws thereof, or any part of such estate or estates, or interest therein transferred by deed, grant, bargain or sale made or intended to take effect in possession or enjoyment after the death' of the grantor or bargainor, to any person or persons in trust or otherwise, other than to the use of father, mother, husband, wife, children or lineal descendants, to be paid for the use of the Commonwealth. The securities, amounting'to $9000, are not specially bequeathed, and perhaps it would make no difference if they were. But the view entertained by the court is, that no Act of Congress impinges upon the collateral inheritance law. This law contemplates the imposition of no tax such as Congress intended to prohibit. It is called a tax or duty, hut has little, if any, analogy to a tax in the usual acceptation of the term. It cannot be regarded as a penalty exactly, but it approximates that as nearly as it does an ordinary tax. It is assessed but once. The claim is made as against a particular class of persons. It is the relation of the person, who claims the estate, to the decedent, which constitutes the ground upon which the abatement is authorized. This is the condition upon which the collateral beneficiary is entitled to receive a decedent’s estate. The legislature have a constitutional right to prescribe the mode of descent of intestates’ estates, and as the right to make a will is by legislative authority, what is to prevent the legislature from declaring prospectively, that legitimate and illegitimate children shall take in equal shares, even against the attempt of the parent to the contrary by will ? Now this is not to be viewed as a tax assessed upon the estate of the decedent or of any one, but a restriction upon the right of acquisition by those who under the law regulating the transmission of property are entitled to take as beneficiaries without consideration. The state is made one of the beneficiaries. It lays its hand upon estates under such circumstances, and claims a share, and whether the share is exacted as a tax or duty or whatsoever else, or the machinery employed in levying an ordinary tax is adopted or not, is of no consequence. The constitutional authority of the state cannot be denied: Short’s Estate, 4 Harris 63. The act of the legislature is not liable to the imputation that it countenances the appropriation of private property for public use without consideration, for the estate never vests without the charge. If the position of the defendant were correct, supposing a decedent’s estate consisted wholly of United States securities, no abatement could be made on account of fees of officers, &e., for this description of property would be beyond the reach of state legislation, and the executors would have to pay out of their own pockets, whatever is prescribed by the fee bill or tax law. On the supposition that the estate consisted wholly of interest-bearing notes, which would come within the term ‘ other securities’ as used in the proviso to the Act of February 25th 1862, and recognised as money, it can hardly be supposed the claim of exemption would be asserted, and as the case stands no difference is perceived. It may be said in conclusion, if there be no specific bequest of these bonds to the legatees, what have we to do with them in deciding this question ? It is the clear value of the estate passing to collateral heirs we are to look to, and that cannot be ascertained untjl the debts are paid. The clear value for distribution must be exhibited by the executors in their settlement, and from that the state is to take its share, and we cannot inquire into the source from which that balance is made up. Should these bonds pass into the hands of the legatees, whether they can then be taxed for state, county or township purposes, will present a very different question from the present. But if they can now be exempted from the collateral inheritance tax, we can readily perceive how uniformly all other property that would not, would first be taken as the fund for the payment of debts or distribution among lineal descendants.”</p> <p>Judgment entered in favour of the plaintiif for $450.</p> <p>The error assigned was, directing the judgment to be entered in favour of the plaintiff on the case stated.</p>

<p>1. The contract of guaranty, unlike that of surety, is collateral and secondary: the guarantor is liable only when the debtor has proved insolvent after ¿Lúe diligence by the creditor to obtain payment.</p> <p>2. Vue diligence is that which a vigilant creditor employs when he has- no other security than the obligation of the debtor.</p> <p>3. If the creditor employs legal process against the debtor without delay, the primd facie presumption is that he has been duly diligent; but suing out process simply, and letting it run its course, may not be due diligence.</p> <p>4. In an action on a guaranty, facts, tending to show that the creditor failed to use with good faith that diligence which prudent creditors ordinarily employ, should be submitted to the jury on the question of due diligence.'</p>

<p>Appeal from the Orphans’ Court of Lehigh county.</p> <p>Jonas Wesco, of Lehigh county, by his will, dated September 23d 1861, and proved July 1st 1863, after ordering the payment of his debts, amongst other things, gave to his wife, Sarah Wesco, the appellant, |2000, to be paid out of the first money which should come into his executors’ hands, and directed the sale of certain lots of land, out of the proceeds of which one-half of this sum was to be paid. He also gave her half the grain produced on his farm, with other privileges on it, and (with her daughter) the use of a dwelling-house and lot belonging to him, during widowhood, with some other things of smaller importance. The rest of his estate he left to collateral heirs, he being without issue.</p> <p>The appellant alleged that her husband owed her $1400, her separate estate, which was made up from $516.87, the amount to which she was entitled from the estate of a former husband, distributed in 1840, and $1009.66, under the will of her father, which was payable to her after the 8th of July 1847. For this last sum, she and the testator, on the 29th of December 1849, joined in a release to her brother, on whose land it was charged, in which they jointly acknowledged the receipt of that sum. There was no other evidence that either of these particular sums had passed into the testator’s hands. . Rut there was evidence, that in 1846 he had built a barn, and had said on several occasions that he had got the money from his wife; that the sum was about $1400, and he intended to pay it back to her again. There ivas evidence also that the testator said he had willed his wife $2000 ; that she had earned it whilst she had been living with him.</p> <p>The executors settled their account, and an auditor was appointed “ to audit and re-settle the account, and make distribution according to law, and report facts.”</p> <p>As to this claim, the auditor reported: “ In support of the aforesaid claim, Mr. Wright offered in evidence the auditor’s report, on the account of the administrator of the estate of Conrad Meitzler, deceased, former husband of said Sarah, confirmed by the court, September 4th 1840, showing a distribution to the said Sarah of the sum of $516.87J; also a release, dated December 29th, A. d. 1849, executed and acknowledged by Jonas Wesco (the testator) and Sarah Wesco (the claimant), to Solomon Mohr, upon the payment of $1009.66 in full, for a certain legacy to said Sarah, under the will of her deceased father, and charged on certain real estate. In further support of said claim, Mr. Wright produced and examined under oath certain witnesses, whose evidence is contained in 'the notes of testimony hereunto annexed.</p> <p>“ After hearing the proofs, allegations and arguments of counsel, the auditor decided not to allow said claim, and therefore reports accordingly.”</p> <p>Exceptions to the report were filed by the widow, which, after hearing, were “ dismissed, and the report of auditor confirmed by the court,” no opinion being delivered.</p>

This was an action of assumpsit, commenced August 19th 1861 by Franklin H! Person and Henry Drissell, partners, &c., against Henry W. Neigh and Peter W. Neigh. By order of the court (Barrett, P. J.) the following entry was made on the record:— “ This ease was given to the jury on Friday, the 6th day of January, A. d. 1865, during the afternoon of said day, and the jury retired to deliberate upon their verdict.

Elizabeth Foulke died in October 1820, having by her will, dated May 17th 1815, amongst other things, given as follows:— “ Item.

<p>1. Drawing a check on a bank in which the drawer has no funds, and uttering it, is fraud ; both on the person to whom it is negotiated and on the bank.</p> <p>2. It is fraud in the holder of a check to present it for payment, when he knows the drawer has no funds in the bank to meet it.</p> <p>4. The holder of a check deposited it in the bank on which it was drawn, knowing that the drawer had no funds to meet it; it was passed to the holder’s credit and charged against the drawer. Held, that this was not payment of the check by the bank, and that the holder could not recover the amount from the bank.</p>

This was an action of assumpsit by Henry Storch against William H. Seip, in which the writ issued September 18th 1868, and the defendant declared in the common counts. The cause of action was digging the cellars and doing the mason work for several houses. On the trial (before Maynard, P. J.) the defendant gave evidence to prove a change in the original contract, then called the plaintiff to prove other parts of his case, and rested.

<p>Error to the District Court of Philadelphia.</p> <p>This was a scire facias sur mortgage by William Sadler, assignee of The Second Reformed Dutch Church of Philadelphia, who was assignee of Robert S. Clark and Lewis P. Gebhard, against Freeman Scott. The mortgage was dated May 1st 1841, to Clark and Gebhard; by them assigned, April 8th 1858, to the church.</p> <p>Scott, October 16th 1857, gave the following certificate:—</p> <p>“ I do hereby certify that I have no claim, demand, or set-off whatsoever against a certain mortgage, debt, or principal sum of $3200, secured by an indenture of mortgage given and executed by me to Robert S. Clark and Lewis P. Gebhard, trustees, &c., dated the 1st day of May, a. d. 1841, and recorded in mortgage book G. S., No. 12, page 467, &c., and by them assigned to “ The Second Dutch Reformed Church of .Philadelphia,” by an assignment endorsed thereon dated the 8th day of April A. D. 1853, and recorded in mortgage book Ti H., No. 27, page 502, &e., and now about being assigned to William Sadler ; but that the whole of said mortgage-debt is just, due, and owing by me, with interest thereon, from this day.”</p> <p>And on the same day the mortgage was assigned by the church to Sadler.</p> <p>After the plaintiff had proved the foregoing facts and rested, the defendant offered to prove that the mortgage sued on had been fully paid off to the Second Reformed Dutch Church by the defendant, Freeman Scott; that the said mortgage was after-wards assigned to the plaintiff by the church at the request of the defendant — of all of which the plaintiff had notice.</p> <p>The court admitted the receipts given by the church for the payment of the mortgage, but rejected evidence as to the other part of the offer.</p> <p>In rebuttal, Spiegle, 'a witness for plaintiff, testified, that having seen an old mortgage for $3200 advertised for sale at a discount, he as agent of Sadler negotiated with Belcher for this mortgage, and got it for $2900;. that neither he nor Sadler knew that Belcher was Scott’s agent, but supposed that he was purchasing from the church ; that Belcher brought the officers of the church to the alderman’s office, and he, Spiegle, was told by them to pay the money to Belcher.</p> <p>The court below (Stroud, J.) charged that the certificate that there was no set-off, was an estoppel to the defendant’s evidence.</p> <p>The jury found for the plaintiff $3600.</p> <p>The rejection of the defendant’s offer of evidence, and the judge’s instruction to the jury, as above stated, were assigned for error.</p>

<p>Error to the Court of Common Pleas of Berks county.</p> <p>This was an action of assumpsit, commenced February 9th 1858, by Edward Kerns and Thomas Kerns, against Patrick O’Reilly.</p> <p>O’Reilly was a contractor for building the eastern division of the Lebanon Yalley, Railroad; the Kerns were contractors under him for four sections. Their contract, which was under seal, contained the following stipulations:— • '</p> <p>“ To prevent all disputes, it is hereby mutually agreed, that the said engineer shall in all cases determine the amount or quantity of the several kinds of work which are to be paid for under this contract, and the amount of compensation at the rates herein provided for; and also that the said engineer shall in all cases decide every question which can or may arise, relative to the execution of this contract on the part of said contractors and his decision shall he final and conclusive and without appeal.</p> <p>“ It is further agreed, that when the work shall be increased by the enlargement of any part of the same, or by any contingent work, which said engineer may deem necessary to facilitate the execution or render the work in any particular point conformable to local circumstances, beyond what is contemplated in this contract ; such increase or contingent work shall be paid for at the same rate as similar work herein contracted for, or if not similar to work herein contracted for, it shall be paid for as an extra item, according to the estimate of the engineer.”</p> <p>The work being completed, the engineer made a final estimate amounting to $103,408.31. The defendant paid the plaintiff $104,279.50, being $871.19 in excess of the estimate.</p> <p>The action was for work claimed to be not within the terms of the contract, for which it was alleged 4a new contract had been substituted.</p> <p>The plaintiffs presented several items of claim, of which the court (Woodward, P. J.,) submitted two only to the jury, as follows:—</p> <p>“ 1. The written contract provided for 1 bridge’ masonry of rock, hammer dressed and ashler broken range at $5.50. Under the direction of the engineer, the bridge masonry put up by the plaintiffs was ‘ rock ashler range work.’</p> <p>“ In the engineer’s estimate, the price allowed for the work actually done was $6.80. It is said that the increase of $1.30 in the price was inadequate, and 'there is evidence that ‘ ashler range’ masonry was worth $10 or $12. If the parties treated this change in the work as a change to that extent, of the written contract, then the plaintiffs ought to recover that sum which, under the evidence, would be equal to the increased cost beyond what they have received. The fact of the allowance of the increased price in the estimate beyond the rate fixed in the contract, is relied on as evidence that the contract itself had been replaced by a new agreement; the value of the fact is left to the jury to decide. If the parties agreed that $6.80 should be the price of the new masonry, and the plaintiffs have been paid at that rate, there can be no recovery. But if there was no such agreement— if the plaintiffs were employed to do new work, entirely different from that specified in the contract, and if they went on and performed it without any stipulation, express or implied, either that they should receive the contract price or that the engineer should adjust the increased compensation, a case would be presented excluding the engineer’s authority to decide conclusively the rights of the parties. He was made the arbiter of questions growing out of the written contract. It was not contemplated that he should he the ultimate tribunal in a controversy growing out of a new, unanticipated and substantive parol agreement. He was to ascertain and report the ‘ amount and quantity’ of the work specified in the contract, at the contract rates. But he was clothed with no power to impose the terms of a future bargain, or to fix the rate of compensation the plaintiffs should receive for labour performed by the plaintiffs under new stipulations with the defendant.</p> <p>“ It is entirely for the jury to ascertain, in view of the evidence, whether the kind of work contracted for was changed — if so, whether a new rate of compensation was agreed upon — what the compensation ought to be, if the parties did not adjust it, and what amount the plaintiffs should recover, if anything, beyond the moneys they are shown to have received.</p> <p>“ 2. A claim is made for work done upon the railroad in June 1857, after the company accepted it from the hands of the contractors. It is alleged that the plaintiffs were employed by the defendant to perform certain labour, after all the work under the contract ceased and after all parties had treated the sections of the plaintiffs as completely finished.</p> <p>“ This is spoken of in evidence as ‘ extra work’ done on township roads and bridges, in ballasting the track, and in making ditches. If this was in reality ‘ extra work’ not embraced in the written contract; and if it was done at the instance and request of the defendant, the court are aware of no reason, if it has not been paid for, which should prevent a recovery by the plaintiffs of its value in this action. They could not maintain a suit on the contract, and would have no remedy, unless they have it here. The jury will judge of the evidence. Allowance for this item can only be included in the verdict if they find that the plaintiffs did the work: that the defendants employed them to do it: that it has not been paid for, and that it was aside from and in addition to that originally contracted for.”</p> <p>These portions of the charge were assigned for error, and sufficiently present the questions controverted and decided in the Supreme Court.</p> <p>There was a verdict for plaintiff for $2660.</p>

This was an amicable action of ejectment for a house and lot in Philadelphia, by The Second ■ Reformed Presbyterian Church against William W. Disbrow and Margaret his wife.

<p>Error to the Court of Common Pleas of Lehigh county.</p> <p>This was an action of ejectment, commenced August 6th 1862, by Nathan Dresher and Lesher Trexler against The Allentown Water Company, John Blank, Joseph Weaver and Lena Grim, for a tract of land formerly the estate of which Abraham Worman, Sr., died seised.</p> <p>The decedent left no widow, but left two children and two grandchildren, children of a deceased child.</p> <p>On the 24th of November 1846, letters of administration on his estate were issued, and on the 5th of February 1847, on the petition of Abraham Worman, Jr., the eldest son of the deceased, proceedings in partition were commenced, under which all the real estate of the decedent, December 3d 1847, was adjudged at $6827.49 to Abraham Worman, Jr., who entered into recognisance, &c.</p> <p>On the 4th of February 1848, the court directed a credit to be entered on the recognisance for $3407.97, the amount of debts of decedent paid by A. Worman, Jr.</p> <p>The records showed also that he had paid the shares of all the heirs in the valuation. On the 13th of May 1848, A. Worman, Jr., conveyed an undivided moiety of the land to Peter Huber.</p> <p>On the 12th of June 1848, judgments were obtained against A. Worman, Jr., and Peter Huber, under which the land in dispute was sold October 17th 1850, by the sheriff to the plaintiffs:</p> <p>Prior to this sale, A. Worman, Jr., on his own application was subrogated to the rights of the creditors of his father, whose claims he had paid. On the 21st of September 1848, — after the judgments and before the sheriff’s sale, — on the petition of the administrator of A. Worman, Sr., the Orphans’ Court ordered his real estate to be sold for the payment of his debts: the sale was confirmed February 5th 1849. The defendants derive their title from the purchasers at the Orphans’ Court sale.</p> <p>On the distribution of the proceeds of sale amongst the creditors, a dividend on $1044.54 was awarded to A. Worman, Jr., under the subrogation above mentioned.</p> <p>The plaintiffs’ counsel requested the court to charge the jury,</p> <p>1. The proceedings in partition operated to vest in Abraham Worman, Jr., an absolute fee-simple title to the lands accepted, from the date of the execution of the recognisance.</p> <p>2. The premises in controversy were vested in fee in Abraham Worman, Jr., and Peter Huber, as tenants in common on the 12th day of June 1848, and were therefore subject to the lien of the judgments recovered on that day by Nathan Dresher and Joseph Miller.</p> <p>3. The sheriff’s sale and deed to the plaintiffs vested in them all the estate and interest of Huber and Worman in the lands conveyed at the rendition of said judgment.</p> <p>4. The Orphans’ Court, by their decree adjudging the land in controversy to Abraham Worman, Jr., exhausted their authority and jurisdiction over said land as the estate of Abraham Worman, Sr., and had no power so long as that decree remained unreversed to order the land to be sold for the payment of the debts of Abraham Worman, Sr., and therefore the order of sale granted to the administrator on the 21st September 1848, and the proceedings thereunder were void, and passed no title to the premises.</p> <p>5. Under all the testimony the plaintiffs have shown a good title to the premises in dispute, and are entitled to a verdict.</p> <p>The court (Maynard, P. J.) instructed the jury to find for the defendants.</p> <p>The errors assigned were :—</p> <p>That the court erred in instructing the jury that their verdict must be in favour of the defendants ; and in not affirming all the plaintiff’s points.</p>

Err.or to the District Court of Philadelphia. This was an action on the case by James P. Stetson, Thomas E. Corson and thirteen others against Henry Croskey and Babel H. Irons.

<p>1. A purchaser of stock upon its transfer to him is protected in his purchase although there was no right to make the transfer.</p> <p>2. Banks and other corporations are trustees for the property and title of each owner of their stock. Having in their keeping the primary evidence of title, they are held to proper care and diligence in its preservation, and may demand evidence of authority to transfer.</p> <p>3. Although generally the legal title is sufficient evidence of a right to transfer, yet if a transfer would be a wrong to an equitable owner, the corporation make themselves parties to the*wrong if they permit it to be done, knowing such equitable right.</p> <p>4. Letters of administration are always sufficient evidence of authority to transfer, because a sale and transfer, of stock is in theline of the duty of administrators, whose primary duty is to dispose of the property, to pay the debts of the intestate, and distribute the residue.</p> <p>5. A trustee of an insolvent debtor stands on the same footing, and generally an executor, even if the stock may have been bequeathed specifically, the transfer agent having no means of knowing whether it will be necessary to pay debts.</p> <p>6. The powers of an executor or administrator differ from those of an ordinary trustee, the duty of the latter being not administration, but custody and management.</p> <p>7. A transfer agent before permitting the transfer of stock, appearing on the face of the certificate to be held in trust, has a right, — especially if the cestui que trust is named, — to require the exhibition of the authority to transfer beyond the certificate.</p>

<p>1. An appearance having been entered in a case and it being at issue when called for trial, the appearance and plea were withdrawn. Held, that the court had power to give judgment for default of appearance.</p> <p>_ 2. Opening such judgment was in the discretion of the court, and the imposition of terms is not a subject of review by the Supreme Court.</p> <p>3. Dams to create floods to carry down lumber, erected in a stream which is a public highway, are not for a purpose described in the “ Mill-Dam Act,” and are unlawful.</p> <p>4. Where by reason of injury to rafts, the owner was delayed in getting them to the market, and lumber had depreciated before he could get them there; the depreciation was a proximate consequence of the wrong, and to be considered in estimating damages.</p> <p>5. The damages were not to be estimated according to the depreciation at the distant market, but the price there was proper to be considered in determining the value of the lumber where it was injured.</p> <p>6. Joint owners of a chattel should join in an action for injury to it, and the non-joinder can be taken advantage of only by plea in abatement.</p>

<p>1. A common scold is indictable as a common nuisance.</p> <p>2. The 178th section of the revised Penal Code which provides that every felony, misdemeanor and offence whatever not specially provided for by the act, may and shall be punished as heretofore ; saves the common law offence of “ common scold.”</p> <p>3. An indictment charging that the defendant “ intending the morals * * of citizens of this Commonwealth to debauch and corrupt, openly and publicly * * in the. public highways, wicked, scandalous and infamous words did utter in the hearing of the citizens of the Commonwealth, and to their manifest corruption and subversion, and to the common nuisance,” &e., sufficiently describes the offence.</p>

<p>Error to the Court of Common Pleas of Bradford county. „</p> <p>This was an action of assumpsit by A. P. Spalding, endorsee of William Braine, against William Braine, on a note dated May 9th 1860, from T. S. Griswold and Erastus N. Griswold, to Braine “ or bearer,” payable in two years, for $60, with interest.</p> <p>About the time the note became due, the agent of Spalding, the endorsee, put it into the hands of Delos Rockwell, Esq., a lawyer, for collection. Braine, on the 9th of May 1862, sought an interview with Rockwell about the note, and suggested to him to proceed immediately to its collection against the drawers, one of whom was insolvent, and at his request Mr. Rockwell gave him the note, which he, Braine, put into the hands of a justice where the -solvent drawer resided for collection; judgment was recovered May ITth 1864 against him, and he appealed. On the 12th of May, Rockwell gave notice to Braine that the note was unpaid, and that he would look to him for payment. Rockwell made no demand on the drawers. Rockwell being offered by the plaintiff as a witness, was objected to as incompetent, because he had neglected to protest the note, and had thereby become liable to the holder. The court (Mercur, P. J.) admitted the witness, which is the only error assigned.</p>

<p>This was a bill in equity in the Supreme Court, by Rowland & Ervien against the Pennsylvania Railroad Co. The bill set out that the complainants were millers in Philadelphia; that they had been in the habit of purchasing large quantities of grain at places west of Pennsylvania and not the product of its soil, and also of soliciting and accepting consignments of such grain, and in either case the grain was transported to Pittsburgh, offered by their agents to the defendants, received, transported and delivered by them to the complainants in Philadelphia, who ground it at their mill, having first purchased in Philadelphia what had been consigned to them at shippers’ risk; that in accordance with the Act of March 7th 1861, for the commutation of tonnage duties, by a toll sheet filed in the auditor-general’s office, the rate of “ local freight” on grain from Pittsburgh to Philadelphia was fixed at 36 cents per 100 pounds, and charged that the defendants were therefore bound to carry all grain offered at the terminus of their road at Pittsburgh for 36 cents per 100 pounds ; but that since April 1st 1865, they have charged 55 cents per 100 pounds, claiming that they might legally discriminate in their charges between grain grown in Pennsylvania and that grown without and brought into the state for the purpose of being made into flour ; and prayed for an injunction against the defendants to restrain them from making such charges, for an account of overcharges and repayment to the complainants.</p> <p>The defendants in their answer averred, that it is the true intent and meaning of the Commutation Tonnage Act of 1861, that a discrimination shall be made between the products of the soil and the industry of other states, which is brought within this Commonwealth with intent that the same may be shipped over the line of the respondent’s road upon its way to market, and the products of the soil of Pennsylvania or of the industry of its citizens.</p> <p>A general replication was filed, and the case referred to Garrick Mallery, Esq., Master, who reported as his conclusion: — “The simple question in this case is, whether wheat purchased beyond the limits of Pennsylvania, and brought to Pittsburgh and then shipped by the Pennsylvania Railroad to Philadelphia, with the alleged intent as stated, simultaneous with the foreign purchase or consignment, is entitled to the benefit of local freight ? And it is my opinion that it is not, and that the plaintiffs have not sustained their claim, and that their bill be dismissed.”</p> <p>The plaintiffs excepted to the report.</p>

<p>Error to the District Court Philadelphia.</p> <p>This was a scire facias sur mortgage, issued January 29th 1862, by the American Life Insurance and Trust Company, assignee of John Gilbert, against John H. Simon, in which judgment was taken for want of an affidavit of defence, and the judgment afterwards opened on the application of Charles B.. Dungan, trustee, terretenant, and he let into a defence.</p> <p>On the 6th of December 1854, Gilbert sold to Dungan a house and lot on Vine street, Philadelphia, for $12,000. Part of the consideration was a house and lot on Arch street, which Dungan then conveyed to Gilbert at $7500. Dungan at the same time sold the Vine street house to Simon for $12,000; it was conveyed d'irectly by Gilbert to Simon, who gave to Gilbert a purchase-money mortgage for $4500, the one in suit, and also a mortgage for $7500, recited to be for purchase-money, which was at once assigned to Dungan. The $4500 mortgage was recorded a few hours before the other, with the understanding between Simon, Dungan and Gilbert, that it was to have priority. Dungan assigned the $7500 mortgage to one Reinboth, who immediately reassigned it to him as trustee of the estate of Tarr. Gilbert afterwards assigned the $4500 in mortgage to the plaintiff.</p> <p>Dungan, in 1859, sued out his mortgage and bought the premises at sheriff’s sale. After the property was advertised by the sheriff, the actuary of the plaintiff, at two interviews, was assured by the attorney of Dungan, who had the mortgage for collection, that the $4500 mortgage was prior to the $7500 mortgage, and would not be disturbed by a sale under it: in consequence the actuary did not attend the sheriff’s sale. No money was paid to the sheriff on account of the sale but the costs, which were paid by Dungan’s attorney, who receipted to the sheriff for the balance of the purchase-money. Dungan himself had no knowledge of the statements of his attorney, nor did he make any himself in regard to the lien of the mortgage. After his purchase he made two half-yearly payments of interest on the $4500 mortgage.</p> <p>The court below (Stroud, J.), in answer to plaintiff’s points, charged:—</p> <p>“ 1. That if the jury believe that at the time of the sheriff’s sale of the mortgaged premises under the $7500 mortgage, the plaintiffs were induced to be absent from the sale or to abstain from bidding, by statements or representations made to them by the counsel of Mr. Dungan, to the effect that the lien of their mortgage would not be divested by that sale, but that the purchaser would take subject to their mortgage, and that at that sale Mr. Dungan became the purchaser, 'the lien of the sheriff’s mortgage was not divested by that sale.</p> <p>“ 2. That if the jury believe that in consequence of statements or representations made by defendant’s counsel, to plaintiffs at the time of or shortly prior the sheriff’s sale of the mortgaged premises, the plaintiffs were induced to abstain from bidding at that sale, whereby defendant was enabled to buy the property as if it were subject to the lien of plaintiff’s mortgage, defendant is now estopped from denying that he did buy subject to that mortgage.” The verdict being for plaintiff for $5538.75, these instructions were assigned for error.</p>

<p>1. A testator gave all his estate, real and personal, to his children, share and share alike, ordering his executor to invest it, so far as converted into money, and pay the interest, &e., and the rents, &e., to his children annually during life, and after the death of any child, the principal to be paid over to such child’s children: followed by the proviso that if any of his “ said children should die without issue, the share, purpart or dividend of such heir shall be equally divided amongst the survivors or the children of the survivors of such survivor.” He also authorized his executor at his discretion to sell his real estate, invest the proceeds, and pay the interest as before directed. Meld, that the children of the testator took but a life interest in both real and personal estate, with remainder in fee to their children.</p> <p>2. The ultimate limitation in default of issue of the children, took effect as an executory devise or an alternative limitation, not as a remainder.</p> <p>3. If a testator gives an absolute interest either in lands or personalty, and afterwards unequivocally shows that he means the donee to take a less estate, the prior gift will be so restricted.</p> <p>4. Subsequent provisions will not take from an estate previously given qualities inseparable from it, e. g. alienability; but they may define the estate given, and show that what might be a fee, was intended to be a less right.</p> <p>5. A limitation over on the death of the first taker, or a direction that the interest of money or the rent, &c., shall be paid annually to him for life, or a power of sale to another with an order to invest the proceeds for the first taker’s life and afterwards over, is evidence that he has but a life interest.</p> <p>'6. A power to sell and invest, and pay at stated intervals, cannot eo-exist with absolute ownership in another than the donee of the power.</p> <p>7. To create a trust, the trustee need not be so named: his character is to be determined by the duties and powers conferred.</p> <p>8. The power and duty to invest an estate, to pay its income and preserve the estate for the remainder-men, are those of a trustee, and not of an exeoutor merely.</p> <p>9. A bequest of personalty to one for life, remainder to his “ heirs,” may give the first taker an absolute interest, a remainder to “ issue,” will not.</p> <p>10. In gifts of personalty, “ issue’’ has a different meaning from that which it has in devises of realty. The remainder-men take as purchasers.</p> <p>11. Both as to personalty and realty, when an absolute interest is given in remainder after a life estate, to the children of the first taker, a limitation over on default of his issue does not raise an estate tail by implication. “ Issue” means such issue, that is, children.</p>

<p>1. It is a rule of construction in a will, that when a testator designates the objects of his gift by their relationship to a living ancestor, they take equal shares per capita.</p> <p>2. The per stirpes rule belongs properly to the statutes of distribution, by which the next of kin of a deceased heir'are placed in his stead.</p> <p>3. These rules are controlled by the general intention of the testator.</p> <p>4. A testator having directed an equal division of a portion of his estate amongst his children, ordered that his real estate should be sold, and, after giving out of the proceeds §1200 to one of his two sons, directed that the residue should be equally divided between the two sons “ and the children of (his) daughter Catharine,” who was then married and living. Held, that Catharine’s children took per stirpes.</p>

<p>1. A testator bequeathed to his daughter Anna £480, and if “ Anna dies without heirs, and immediately thereafter of John’s (her husband) death, that said portion shall be due and payable to her two sisters * * share and share alike, and solely by them redeemable.” Held, that on the death of Anna without children, the legacy passed to her sisters.</p> <p>2. The words “ if Anna dies without heirs” do not imply an indefinite failure of issue, because the legacy was to go over at Anna’s death without children.</p> <p>3. In a bequest of personalty, very slight circumstances are sufficient to show an intention that the limitation over on death without issue is to take effect at a definite time, to wit, the death of the first taker.</p> <p>4. In a partition in 1835 of land devised to the testator’s sons, they charged one-half of Anna’s legacy on each part, the interest to be paid to her for life, and the principal to her sisters at her death. Anna died in 1859, having regularly received the interest from the owners of the land, and having never demanded the principal. Held, that her representative was concluded by her acts, even if the legacy were construed an absolute gift to her.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an amicable action and case stated, between the administratrix, &c., of Alexander Heron, deceased, to the use of L. Harwood, against The Philadelphia Steamship Dock Company.</p> <p>The defendant is a corporation for providing wharf and dock room for vessels. The capital stock is not to exceed 2000 shares of $100, “ and shall be transferable under such regulations as the managers shall establish.” Heron, the decedent, owned at the time of his death, April 9th 1865, 34 shares of stock, the stock being transferable only by assignment on the books of the company in person or by attorney in presence of the president or treasui’er. Heron was at the time of his death indebted to the company, and his estate was insolvent. After his death the company passed a resolution prohibiting the transfer of stock by any one indebted to the company till the debt was paid or secured.</p> <p>After the passage of this resolution, Harwood purchased Heron’s stock of the administratrix and paid for it, without knowledge of his indebtedness or of the above resolution. He received the certificates and a power of attorney to transfer, and presenting them to the proper officers of the company, demanded a transfer, which was refused on account of Heron’s indebtedness. The court below gave judgment for the plaintiff, in accordance with the terms of the case stated.</p>

<p>Error to tbe Court of Common Pleas of Lycoming county.</p> <p>This was an action on the case by Margaret Armstrong against The Catawissa Railroad Company, for damages for the death of her husband, Michael Armstrong, which she alleged was occasioned by the negligence of the servants of the company.</p> <p>By an arrangement with the Philadelphia and Erie Railroad Company, the Catawissa Company had a right to use the road of the former from Milton to Williamsport, but under its rules, two of which are: “ Passenger trains must always be drawn, not pushed; cases of accident, obstruction or unavoidable necessity only excepted, and then only to the nearest side track. In every such case, and in backing any train, the conductor or an experienced and trusty brakeman must be stationed on the top of the car, to signal, and in full view of the engineer. Wheré the track cannot be seen for half a mile, the speed must not exceed four miles per hour.”</p> <p>The first train rule is: “.No train must leave a station before its schedule time has expired, nor without a signal from the conductor. The bell and whistle must always be sounded before starting.”</p> <p>Armstrong was in the employ of the Philadelphia and Erie Company (under Mulligan as'superintendent), as a labourer on the repairs of the track, on the above-mentioned portion of the road. On the night of November 26th 1862, a rail was broken north of Muncy Station. Armstrong and others, by Mulligan’s direction, started on-a hand-car down the road south from Muncy Station, to get help to repair the road, and hearing the Catawissa freight train coming up they took their hand-car from the track and signalled the train to stop, which it did about a mile from the station. Armstrong went to the train and told the engineer about the broken rail above Muncy; but, in answer to the engineer’s inquiry, told him that he could run to Muncy and do his work. The train went on to Muncy; the men, expecting the train was on the siding, put the hand-ear on the track and followed the train, for the purpose of going to the place of the broken rail; as the handcar was going it was struck by the freight train backing, and Armstrong was killed; the disaster occurred about midnight, the night being dark. The evidence was that there were two lights on the front of the hand-car, that Armstrong stood facing the station, that there was a “ dim” light on one side of the last car in the freight train, that there was no person on the rear end of the train, and that there was no signal by the bell. The evidence as to whether the train went back more than once, and also whether the whistle sounded, was conflicting.</p> <p>The acts of negligence complained of were: that before the train backed no signal of an intention to do so was given, neither signal, whistle or bell; that on the hindmost ear there was no light, or if there was, it was too dim to be seen by persons who were approaching in the hand-car; that there was no one stationed on the top of the car, to signal the engineer.</p> <p>There was a verdict for the plaintiff for $5791.</p> <p>In charging the jury the court (Jordan, P. J.) read the evidence of the engineer, and charged, amongst other things, as set forth in the assignment of errors, viz.—</p> <p>“1. The train was flagged by direction of Mulligan. Armstrong went to the train after it stopped. What passed between Armstrong and the engineer we do not hnow.</p> <p>“ 2. The 3d point we answer, that if the jury believe that Armstrong approached the train in the manner disclosed by the evidence without looking for signals, or whether the train was on the siding] he was guilty of negligence; but whether such, negligence contributed to his death or not is a fact for you to determine. If it did, plaintiff cannot recover.</p> <p>“3. If under the instruction you have received, and the evidence in the cause, all of which is submitted to you, you are of opinion Mrs. Armstrong is entitled to recover damages, you must fix the amount. You must put a value upon the life of Michael Armstrong, his probable gains and accumulations, and award to his widow such an amount of damages as a careful and impartial examination of the evidence seems to demand. The Supreme Court have said, and we say to you, that it would be wrong to limit the value of a man’s life by his probable accumulations. In estimating the amount of damages, it would be proper for you to consider the age of Michael Armstrong, at the time he was so suddenly killed. He was probably about forty years of age, as stated by Martin Lynch, having a wife and six children to support. He was a labouring man and enjoyed good health; was receiving at the time of his death 90 cents per day for his labour. Since then wages have increased from 90 cents, $1.20, $1.40 and $1.70, and are now about $1.50. How long he would have lived if this accident had not happened, we have no means of determining, and how long, if he had lived, his health would have been preserved, we cannot tell.”</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of covenant, commenced December 1st 1860, on a ground-rent deed, by The Mutual Benefit Life Insurance Company of Newark, N. J., assignee of Joseph L. Lord, against William Caverow, with notice to John McKee, terre-tenant.</p> <p>Joseph L. Lord, who was the owner of fifty-two ground-rents out of as many contiguous lots, being indebted to the company, and contemplating additional advances, to the extent in the whole of $30,000, agreed to convey to them these ground-rents; they to execute a defeasance, showing that the conveyance was but a mortgage. The deed was delivered November 21st. 1854, but the defeasance was not executed. On the 1st of December after, Joseph Alison, at the instance of Lord, assigned to the company a mortgage dated October 13th 1852, for $4000, which he held against Lord, covering the premises out of which the ground-rents issued. Afterwards Lord, by his bill in the Supreme Court setting out the facts, prayed that the company might be decreed to execute and deliver a defeasance, and, the company admitting the allegations, a decree was made January 15th 1858, directing a defeasance, which should be recorded with the deed of November 21st 1854, and both instruments to operate as a mortgage. A defeasance dated December 31st 1857, and acknowledged January 5th 1858, was delivered and filed in the cause, but not recorded till October 6th 1862. The company on the 28th of January 1859 entered judgment against Lord for $8000 (the penalty) on the bond accompanying the Alison mortgage. On the 2d of April 1860, an Act of Assembly was passed, enacting that Lord’s deed of November 21st 1854 (and a deed from other persons for different property) be and the same “ are declared to- be valid and effectual conveyances in the law for the purpose of vesting in the said Life Insurance Company, the grantee in them named, the estate by the said deeds conveyed, notwithstanding the fact that the said grantee is a corporation foreign to the state of Pennsylvania, and that any and all rights of escheat, existing in the Commonwealth, if any such there he by reason of such conveyances, be and the same are hereby released; so that the said deeds shall have the like effect in law in all respects as if the said corporation had been authorized by law to receive the estate by such deeds conveyed.”</p> <p>On the 3d of November 1860, a foreign attachment in the Supreme Court was issued by the American Exchange Bank of New York against Lord,-and Bevan (the owner of the land out of which the rents issued), garnishee, in which judgment on verdict for $17,655.47 was rendered for the plaintiff, July 25th 1862.</p> <p>On the 4th of October 1862 Lord filed a supplemental bill, averring that shortly after the making of the said defeasance, in the month of March 1858, it came to be clear to the complainant and the proper officers of the insurance company, that the actual value of the premises described in the said deed and defeasance did not exceed nor probably equal the amount of his indebtedness, and thereupon it was expressly agreed between them that an application should be made to the legislature for the passage of an act to authorize the said Mutual Benefit Life Insurance Company, which was a foreign corporation, to hold in fee the estate conveyed to them by the said deed of November 21st 1854, and that an act was accordingly passed and approved on the 2d of April 1860, and the bill set out the foregoing act.</p> <p>The bill further alleged that “ immediately after the passage of the Act of Assembly, the defeasance was surrendered and given up to the Life Insurance Company, and was deemed and treated to have been cancelled and extinguished, and the debt due to the company to have been paid by the real estate conveyed in the year 1854; and thereupon the Life Insurance Company assumed the actual ownership of the said real estate, and from that time have been deemed to be and have been in fact its actual owners in fee.” And it prayed that the decree already recited should be vacated, and that the court provide by a decree that the estate of the Life Insurance Company “ shall stand, be and remain as an absolute estate in fee in pursuance of and in accordance with the understanding, arrangement and agreement of the parties.”</p> <p>On the same day (October 4th 1862), the answer of the defendants was filed, admitting the truth of these averments.</p> <p>The court made the decree as prayed for, October 4th 1862, and directed the deed, defeasance and the former and the present decrees to be recorded together in the office of the recorder of deeds, Philadelphia: which was done October 6th 1862.</p> <p>The estate of Lord in the fifty-two ground-rents was sold by the sheriff on the 2d of March 1863, to Thomas Martin for $3900, under the judgment in the foreign attachment.</p> <p>The Court below (Sharswood, P. J.) reserved the question whether the plaintiffs have any right to recover a verdict on the evidence, and submitted as a question of fact to the jury whether there was an agreement founded on a valuable consideration by Lord, to release the equity of redemption before the issuing of the attachment, and affirmed the defendant’s first three points, viz.:—</p> <p>“ 1. That the deed of November 21st 1854, with its accompanying defeasance, amounts to a mortgage only, and that the plaintiffs thereby acquired no such title or estate as to enable them to maintain this suit in their own names.</p> <p>“ 2. That the Act of April 2d 1860, merely tolled the right of escheat in the Commonwealth, but did not transfer any estate from Joseph L. Lord to the plaintiffs. Such a construction would make the act unconstitutional.</p> <p>“ 8. That the supplemental bill in equity, filed October 4th 1862, and the decree thereon, two years after the above suit was commenced, cannot affect the defendants, who were not parties thereto, and that it has no relation back so as to give plaintiffs a title now to maintain this suit if they had none when suit was commenced.” And denied the remaining points, viz.:—</p> <p>“ 4. That these ground-rents are incorporeal hereditaments, and cannot pass without deed. That no such deed has been shown by plaintiffs as would convey to them the legal estate, and therefore they cannot maintain this suit, and the verdict must be for the defendants.</p> <p>“ 5. That plaintiffs at most are mortgagees only, and therefore they are lien-creditors, but as they cannot sue in their own names for the rent due to Joseph L. Lord, the mortgagor, the verdict must therefore be for defendants.</p> <p>“ 6. That the rents now sued for were duly attached as the property of Joseph L. Lord, by writ of foreign attachment, prior to the commencement of this suit, and that they were thereby sequestered in the hands of the tenants, defendants, which attachment does not appear to be satisfied or dissolved, and therefore this suit ought to abate; their verdict should, therefore, be for defendants.”</p> <p>Defendant assigned for error the answers to 'the last three points.</p> <p>The verdict was for the plaintiff for $516.</p>

<p>1. In an action for rent, the defendants pleaded that the plaintiff during the term leased to another person and excluded the defendants from part of the premises, in the use of which by the second lessee large quantities of water, &c., were discharged on the defendants’ part and so damaged their goods, that they were forced to quit the premises; and they claimed damages therefor in the action. Held, that the averments in the plea constituted eviction, and were not set-off.</p> <p>2. The plaintiffs replied that in a former action for rent for another period under the same lease, the defendants pleaded eviction, and offered evidence of the acts now averred in their plea and that judgment was rendered against them. The defendants rejoined that they did not offer the same evidence in the former action, but they gave no evidence to sustain the rejoinder. Held, that admitting the record of the former action in evidence and rejecting evidence of the averments in the rejoinder, were proper.</p>

<p>1. A terre-tenant may have a writ of error when it is necessary to extricate his title from jeopardy.</p> <p>2. The rule is that no person can bring a writ of error unless he is a party or privy to the record, or is prejudiced by the judgment: he who would have had the thing if the erroneous judgment had not been given.</p> <p>3. Young owned land subject to a mortgage given by a former owner; after Young’s death the land was sold to Keenan on a judgment for unpaid taxes, recovered in Young’s life; the land was afterwards sold to Cadmus under an order of the Orphans’ Court for the payment of Young’s debts; the mortgagee proceeded on the mortgage against the mortgagor and Keenan. Cadmus was admitted to defend; there was a verdict against the mortgagor and Keenan, and for Cadmus. Held, that Cadmus could bring a writ of error.</p> <p>4. An Orphans’ Court sale is a judicial sale, and divests the lien of mortgages and all debts that can be ascertained in moneys numbered.</p> <p>5. A mortgage given by a former owner is a debt of the decedent who dies seised of the estate, as truly as if he had made the mortgage himself; and is not within the protection of the Act of April 6th 1830.</p> <p>6. A sale for taxes assessed after a mortgage has been recorded will not divest its lien.</p> <p>7. The validity of a sale of land on a judgment for taxes, cannot be impeached by evidence that the taxes had been paid before the rendition of the judgment.</p> <p>8. Land of a decedent was sold for the payment of debts; a mortgagee in a mortgage given by a former owner, came before the auditor and received the most of his debt. Held, that the title of a purchaser at such sale was not carried back by relation to the date of the mortgage.</p> <p>9. The personal representatives of Young were not warned before the execution issued on the judgment for taxes; the sale to Keenan was therefore under void process, and he took no title.</p>

<p>Error to the Court of Common Pleas of Tioga county.</p> <p>This was a foreign attachment in debt, issued March 31st 1853, by Isaac Selover, for the use of Aaron Barrows, against Samuel Rexford. Rexford having died, Newton P. Fassitt, his executor, was substituted, and Barrows having died, William E. Cone, his administrator, was substituted.</p> <p>The cause came on for trial, August 26th 1862, before R. G. White, P. J., and a verdict was rendered for the defendant.</p> <p>The cause of action was a judgment of $1917.75, recovered December 14th 1846, in the Supreme Court of New York, by Selover against Rexford. Steele, a witness of defendant, testified, that about February 9th 1847, Henry P. Yeomans, in pui-suance of a previous arrangement, paid Selover this judgment, and that it was to be assigned or satisfied as Yeomans might direct. Nathaniel Mann testified, that he witnessed the delivery of a deed from Rexford to Yeomans, October 3d 1847, and that Yeomans agreed to pay notes of about $3800, due by Rexford to Selover and Steele, in part payment for the land conveyed — the agreement having been previously made; and that at the time he made this memorandum:—</p> <p>“It is understood and agreed between S. R. and H. P. Y., that Mr. Yeomans is to pay S. Rexford’s notes to Selover and Steele, amount about $3800, in part payment for Jackson’s premises. Talked over this day between them; and I am requested by both to make a memorandum as above.</p> <p>“ New York, October 23d 1847. “ N. Mann.”</p> <p>Afterwards Yeomans gave to Rexford this release under his seal:—</p> <p>“ New York, October 30th 1848.</p> <p>“ Received of Samuel Rexford one hundred dollars, in full of, and in consideration thereof, I do hereby discharge him from all claims, debts due, and demands of every name, nature and description, whether in law, equity or other issue; waiving all errors and cancelling all agreements.”</p> <p>On the 8th of September 1851, Selover, by writing under his seal, assigned his judgment to Barrows; the assignment was witnessed by Yeomans.</p> <p>Yeomans was called as a witness by the plaintiff, was rejected as incompetent, and an exception taken.</p> <p>The court, amongst other things, charged the jury, that the memorandum made by Mann, “ corroborates the recollection of the witness in regard to the date and the terms of the arrangement.” This also was excepted to.</p> <p>The matter of these two exceptions was assigned for error.</p>

<p>Appeal from the Orphans’ Court of Philadelphia, by William S. Halsey, administrator de honis non, &c., of John Nicholson, deceased, in the matter of his petition for a citation to Caroline M. Tate, administratrix, &c., of James Tate, deceased, to file an account, &c.</p> <p>The petition set forth that on the 25th of February 1795, The North American Land Company was established in Philadelphia, by Robert Morris, James Greenleaf and Nicholson, the decedent; that on the 27th of May, same year, the decedent wrote to Cazenove & Co. that Tate, “ who went on a special invitation to England, took also for sale a body of valuable land for me. The avails, when he sells, are to be deposited with you’’; that on the 3d day of June, same year, Nicholson transferred to Tate on the books of the company seventy-five shares of stock; that said shares were put in the name of Tate merely for convenience, and in trust only, so that he as agent for Nicholson, might sell the same in Europe, and account to Nicholson for the proceeds ; that on the 5th of June, same year, Nicholson wrote to Tate, then supposed to be in London, “ I send you ten certificates of seventy-five shares in The North American Land Company, which I have transferred to you, and which I request you to sell on my account, for what you can get for them — not less than $100 per share. * * The moneys arising from this, as well as the other property, please deposit with J. H. Cazenove, Nephew & Co., merchants in London, deducting your commission at the same rate as the other.” Same day Nicholson wrote to Benjamin Parsons, near London: “ I have, as you know, property with * * Dr. Tate. You will oblige me by inquiring to see what success they have, and writing me. I send some shares to Dr. Tate under your care; be pleased to find him out, for I do not know his address, and see that he gets themthat on the 14th of July, same year, Cazenove & Co. wrote to Nicholson that they had not heard of Ttjte; that on the 11th of September same year, Parsons wrote to Nicholson : “ The letter, &c., for Dr. Tate are still at Mr. Bayard’s that on the 19th of December 1798, Barrell & Servanté, of London, wrote to Nicholson: “We have not been able to recover any of the land company shares which you confided to Mr. Parsons, Dr. Tate or Mr. Joseph Barnes, according to your request, dated 6th March last. We delivered your letter to Mr. Barnes, and had some conversation with him on the subject, who promised to endeavour to find where Parsons and Dr. Tate could be heard of, and to furnish us with an abstract of what shares he had disposed of, and to put the remainder into our hands; but although this was many months ago, we have never heard from him or seen him since, and we cannot, to this day, hear anything either of Parsons or Dr. Tatethat although the seventy-five shares of stock were transferred into the name of Tate, yet it is extremely probable the certificates never reached his hands; that on the 2d of December 1800, Nicholson died in Philadelphia intestate, leaving a number of creditors, a widow and several minor children; that your petitioner is informed and believes that, prior to the year 1804, all his heirs and his widow left the state of Pennsylvania, and went into exile in Louisiana; that the Commonwealth of Pennsylvania passed legislative acts, ordering Nicholson’s papers to be seized; they have been in the state’s exclusive keeping; that no administration was asked for to his estate until the year 1826 ; that on the 28th of June 1856, the first account of the trustees of the land company was filed, and on the 29th of July 1856 was referred to an auditor, who, on the 19th of January 1860, reported the said seventy-five shares of stock still standing in the name of Tate, and awarded a dividend thereon to his legal representatives ; that on the 25th of October 1§60, letters of administration de bonis non on the estate of Nicholson were issued to the petitioner ; that on the 10th of December 1862 the register issued administration de bonis non, aum testamento annexo, on the estate of Tate to Caroline M. Tate, of Trenton, New Jersey; that on the 12th of December 1862, said dividend ($519) was paid by the surviving trustees of said land company to said administratrix, who has neglected to file any account of her administration, &c., and praying for a citation to the administratrix to account and for dismission. A citation was awarded October 1864. The administratrix answered “ that the seventy-five shares were regularly transferred to ‘Dr. James Tate,’ on the 3d of June 1795, by which transfer the full legal title of said shares was duly vested in the said James Tate ; and that as no claim has ever been made until now to said shares; and as no retransfer to Nicholson, or to any one in his behalf, has ever been made, and as the pretended title of Nicholson’s administrator is entirely predicated of ex parte statements, which are contradicted by the record of the association, are unsupported by other proofs, and are conclusively barred by the Statute of Limitations, and the lapse of nearly three-quarters of a century; by his own showing the petitioner is not a party in interest within the meaning of the statute allowing citations to administrators; and that no claim having been made known to her, and nearly two years having elapsed since the said money was paid to her, she, in good faith, paid over the same to the heirs of Dr. James Tate, and that she has fully administered the estate.”</p> <p>The Orphans’ Court dismissed the petition, which was the error assigned.</p>

<p>1. Land was sold for taxes; the purchaser paid taxes assessed after the sale; an owner of the land within two years paid to the treasurer the tax for which the land had been sold, the costs and penalty; the taxes assessed after the sale were not demanded by the treasurer, and were not paid. Held, that the redemption was effectual, notwithstanding the Act of May 8th 1855.</p> <p>■ ' 2. When the owner offers to pay the treasurer taxes, and redeem the land, it is the duty of the treasurer to demand all that should be paid; the owner cannot be damaged by the treasurer’s neglect.</p> <p>3. Statutes are always construed as prospective, unless courts are constrained to the contrary by the rigour of the phraseology. Whether taxes assessed and paid before the passage of the Act of May 8th 1855, are to be re-paid to make an effectual redemption after the act, d/ubitatur.</p>

<p>Error to the Court of Common Pleas of Lycoming county.</p> <p>This was an attachment execution issued September 18th 1858, by Palatial S. Rowland against Joseph S. Wonderly, J. H. Fulmer, Jacob Hyman and C. A. Staneliff, trading as J. H. Wonderly, in which The Franklin Fire Insurance Company were garnishees. George Slate and Solomon Moyer were afterwards admitted as defendants. The same individuals were also doing business under the firm of J. H. Fulmer & Co.</p> <p>On the 8th of April 1858, judgment was entered on a single bill for $13,550.25, in favour of Slate and Moyer against J. H. Fulmer. On the 16th of same month, Fulmer, and Slate and Moyer entered into an agreement, reciting the judgment, and declaring that the judgment to the extent of $6239 was for the use of divers creditors of Fulmer named, of whom Jesse Fulmer was one, and the balance, $7311.25, to indemnify Slate and Moyer for liabilities which they had assumed for Fulmer. This agreement was filed of record the next day. A suit was brought, August 28th 1858, by Updegraff & Co., and others, to the use of J. H. Fulmer & Co., to recover the insurance for loss by fire against the Franklin Fire Insurance Company. This suit, September 15th, Mr. White, attorney for the plaintiff, marked on the docket for the use of Slate and Moyer, and the attachment was issued on a judgment for $815.29, recovered on the 17th of same month against the defendants, trading as J. H. Wonderly. A verdict in the suit was recovered against the insurance company, October 12th 1861, for $11,925. As garnishees in the attachment, the company, by their plea, averred that they had paid to J. H. Fulmer & Co. $8000 of the judgment, and were ready to pay over the balance to whomsoever , might be entitled to it, according to the judgment of the court. The contest in the attachment was between Rowland, and Slate and Moyer.</p> <p>On the trial before Jordan, P. J., the defendants offered the deposition of Jesse Eulmer to prove the “ verbal assignment” of the policy of insurance by the other members óf the firm of Fulmer & Co. to J. H. Fulmer, after the fire, and before the issuing of the attachment; that the assignment was reduced to writing in December following, and that notice of both the verbal and written assignment was given to the insurance company.' Defendants also offered J. H. Fulmer to prove that the claim against the insurance company was assigned by Fulmer & Co. to J. H. Fulmer by parol, and by him to Slate and Moyer by parol, before service of the attachment. Defendants also offered to prove that the firm of J. H. Wonderly was a distinct and different firm from J. H. Fulmer & Co.: engaged in a different business, and in a different place; kept separate books, and had no interest in the effects of J. H. Fulmer & Co.</p> <p>These offers were severally rejected and exception taken. The court charged as stated in the specifications of error, and the jury found a verdict against the insurance company as garnishee for $1068.48.</p> <p>The errors considered in the Supreme Court were, rejecting the offers above stated, and "the answers to the points of the plaintiff, viz.:</p> <p>1. “ That if the jury believe tne entry on tne docket made by George White, by direction of J. H. Fulmer, on the 15th of September 1858, ‘ for the use of George Slate and Solomon Moyer,’ was made for the purpose of hindering and delaying the creditors of J. H. Fulmer & Co., the plaintiff in this case is entitled to recover.”</p> <p>Answer: “ The law is as stated on this point. Fraud vitiates everything into which it enters, and if the jury believe the entry made on the record by George White, Esq., by direction of J. H. Fulmer, was made for the purpose stated in this point, the entry will not prevent plaintiff’s recovery.”</p> <p>2. “ That the said entry upon the docket having been made by the attorney at the instance of J. H. Fulmer, without the assent or agreement of the other copartners owning said claim, and without any consideration paid therefor being shown, is inoperative and void as against the creditors of the firm of J. PI. Fulmer & Co., and as against the plaintiffs in this case.”</p> <p>Answer: “ This is affirmed, if the facts are as stated in this point.”</p> <p>3. “ That under all the evidence in this case the plaintiff is entitled to recover.”</p> <p>Answer: “ This instruction we cannot give. If you find the entry was made, at the instance of J. H. Fulmer, without the assent or agreement of the partners owning said claim, and without any consideration paid therefor being shown, the court are of opinion the entry, which may be treated as an assignment, is inoperative and void. You are to determine the facts.”</p>

<p>Error, to the Court of Quarter Sessions of Lycoming county.</p> <p>This was a prosecution against Ensworth, Taylor & Brown, for maintaining a mill-dam in the West Branch of the Susquehanna, contrary to the provisions of the Mill-Dam Act of March 23d 1803.</p> <p>On the 24th of April 1864, E. B. England petitioned the Court of Quarter Sessions, alleging that the defendants maintained a mill-dam contrary to the provisions of the act.</p> <p>Viewers were appointed, who reported that the defendants did so maintain a dam. An indictment of two counts, one for nuisance under the act and the other for nuisance at common law, was found by the grand jury, and the jury found a special verdict that the defendants have kept and maintained a mill-dam in, across and upon the West Branch of the river Susquehanna, extending from lands of the defendants, adjoining the said river and across the said river from shore to shore, for certain mills, &c., and that the keeping and maintaining of the said dam is convenient and useful for the purposes of the said mills; that the said mill-dam obstructed and impeded the navigation of the said river, which was and still is a public highway, and one of the great rivers of Pennsylvania; that no dam can be constructed across the said river at or near where the dam aforesaid is maintained and kept by the defendants, without impeding the navigation of the said river; that at the August Sessions 1860, of the Court of Quarter Sessions of the said county of Lycoming, one Isaac Gould presented his petition to the said court, setting forth that Loren A. Ensworth, Benjamin H. Taylor, James V. Brown and others, maintained a dam in the said West Branch of the river Susquehanna, &c., and that such proceedings were had in the said court that an indictment was found against the said Ensworth, Taylor, Brown and others charging them with a nuisance in erecting, building, setting up, maintaining and repairing the said dam. And afterwards a jury, on the 24th day of August 1861, found the said Ensworth, Taylor and Brown guilty in the manner and form as indicted. And on the 30th day of August, in the year last aforesaid, the court ordered the supervisors to remove the obstruction mentioned and described in the said bill of indictment in such a manner as to bring the same within the provisions of the Act of Assembly passed the 23d day of March 1803, at the cost of the said Ensworth, Taylor and Brown; that an order, in pursuance of the said sentence of the said court, was delivered to the said supervisors; that the said supervisors afterwards raised the said dam several inches in height, made the schute narrower than it was before the order was delivered to them, and raised the sheeting of the schute higher than it had been before ; that the said supervisors made return to the court that they had removed the obstructions mentioned and described in the indictment; that on the 18th day of August 1862, the court granted a rule upon the supervisors to show cause why an attachment should not issue against them for contempt in refusing obedience to the aforesaid order, and that on the 27th day of January 1863, the court discharged the said rule; that the said mill-dam so altered and fixed by the said supervisors is the same mill-dam which the said Ensworth, Taylor and Brown have kept and maintained; that they have kept and maintained it at the same height and in the same condition substantially as it was made by the supervisors as aforesaid. And that the said Ensworth, Taylor and Brown are not guilty of building, erecting or setting up the said mill-dam, but whether upon the whole matter, by the jurors aforesaid in form aforesaid found, they the said Ensw'orth, Taylor and Brown acted contrary to law in keeping and maintaining the said mill-dam from the said 30th day of April, A. D. 1864, to the present time, across the said West Branch of the river Susquehanna, from shore to shore, and therefore impeding and obstructing the navigation of the said river and public highway, the said jurors aforesaid are ignorant, and therefore they pray the advice of the court, and if, upon the whole matter aforesaid, by the jurors aforesaid in form aforesaid found, it shall appear to the court that the said Ensworth, Taylor and Brown acted contrary to law in keeping and maintaining the said mill-dam and thereby impeding and obstructing the navigation of the said West Branch of the river Susquehanna, to the common nuisance of the citizens of this Commonwealth, passing along and navigating the said river, they find them guilty in manner and form as they stand indicted, but if upon the whole matter by the jurors- found, it shall appear to the court that they, the said Ensworth,. Taylor and Brown did not act contrary to law in keeping and maintaining the said mill-dam as aforesaid, then the jurors say, that the said Ensworth, Taylor and Brown are not guilty, and that the costs of the prosecution be paid by defendants.</p> <p>The court entered judgment on the special verdict for the Commonwealth, which was the error assigned.</p>

<p>1 Both these cases depended upon the construction of the will of John R. Neff, and were considered and decided together.</p> <p>The first cáse was certified from Nisi Prius, and was an action of ejectment, commenced March 8th 1865, by Mary Jane Williams against William P. Neff, Charles Neff and John R. Neff, Jr., for the one-sixteenth part of a messuage, &c., in Philadelphia, in which' a case was stated.</p> <p>John R. Neff died in July 1863, seised of the messuage, &c., leaving three sons, the defendants, and his granddaughter, the plaintiff. By his will, dated April 22d 1850, after- directing payment of his debts, &c., he provided: “I give, &c., to my executors * * in trust, ten thousand dollars (six per cent, interest per annum on said amount to be paid from the time of my death), * * to and for the sole and separate use and behoof of my granddaughter, Mary Williams, the same to be paid to her on her arrival at the age of twenty-one years; should she marry before she arrives at that age, to be paid to her at the time of her marriage ; and to collect the interest thereon and pay over the same from time to time unto my said granddaughter, Mary Williams ; and in case of her death before she marries or arrives at the age of twenty-one years, then to divide the same, share and share alike, between my sons, William P., Charles, James P. W. and John R. Neff, Jr., and any child or children that may he hereafter born.”</p> <p>He then gave to his sisters, Hannah Patterson and Rebecca Biggs, each a yearly annuity of $300; and, if Mrs. Biggs’s husband survived her, her annuity to be paid to him during his life.</p> <p>He then provided: “The rest (-that is, all), residue and remainder of my estate, real, personal and mixed, whatsoever, I give, devise and bequeath to my sons, William P. Neff,-Charles Neff, James P. W. Neff, John R. Neff, Jr., and any child or children that may be hereafter born, in equal shares as tenants in common.” "</p> <p>By a codicil of October 10th 1857, he revoked the legacies to his sisters and the husband.</p> <p>James P. W. Neff was alive at the date of the will, but died unmarried and without issue before the date of the codicil. ■</p> <p>The question was, whether James’s share went to his brothers, the other residuary devisees, or to the heirs at law of the testator.</p> <p>The following opinion was delivered at Nisi Prius by Mr. Justice Thompson:—</p> <p>“The question is, to. whom does the share devised to James P. W. Neff go, he having died before the testator, unmarried and without issue ? To the heir at law the plaintiff, or to the residuary devisees ?</p> <p>“ It is a case of lapsed and not void devise. This baay possibly make a distinction, but as it is not my intention to elaborate an opinion, I will not discuss this distinction.</p> <p>“ In exploring the intent of the testator, we must regard it as of the time of the disposition of his property made in his will, that is, of the time of making his will.</p> <p>“ It is clear in this case that the testator intended not to die intestate of any portion of his estate; his residuary clause imports that.</p> <p>44 But did he make provision for a contingency out of which intestacy of a portion might grow ? It does not seem that he thought of that. He makes specific devises and then a residuary devise of the remainder of his estate in equal portions to his four sons. One dies before him and the provision is not changed.</p> <p>44 Now, reading the will as of the day of its date, no intention is indicated to make any portion of his estate devised a residue. There is no intention to do so deducible from the will.</p> <p>44 Do the words used require such a construction ? A legacy might on authority fall into a residue; but the English rule is that a devise lapses in favour of the heir at law: Ram on Wills 262, citing many authorities.</p> <p>“ In Craighead v. Given, 10 S. & R. 351, Duncan, J., said: 4 The most explicit declaration (by a testator) that the devise shall not lapse, is not sufficient to prevent itthere must be either survivorship, as in a joint devise, or limitation over.’ In that case the heir at law recovered in preference to the residuary devisees. See also the same doctrine, 1 Ash. 242; 3 Harris & McHenry 333 ; same of a void devise, Sloan v. Hanse, 2 Rawle 28/</p> <p>44 There was no limitation over or devise in this case. The testator had no thought of the kind when he closed his will.</p> <p>441 should have little difficulty in coming to a conclusion favourable to the plaintiff, if it were not for the case of Patterson v. Swallow, 8 Wright 487. I am not quite clear that it was intended in that case to decide, as has been argued, that lapsed legacies and devises fall into the residuary estate as a general rule.</p> <p>44 The clauses there called devises were in fact no devises. It is obvious that no testamentary disposition was exercised in regard to them. Item,41 give and devise unto-heirs and assigns,’ was no exercise of a testamentary intent, and the residuary clause gave to the residuary devisees 4 all which does not pass ly virtue of my will and this codicil.’ As if it had been said, if for any cause, any of my specific devises shall fail to pass to the devisees, they shall go over to my residuary devisees. This looked to the possibility of a failure in some contingency or other and a provision against it. Here is an intent to give direction. That we have not in the case in hand, and in this there certainly is an apparent difference at least, and I think real.</p> <p>441 agree with the doctrine of the case fully in its application to the case itself, and with the general doctrine that, intestacy will not be presumed if the words of the testator be broad enough to prevent it; and that the heir will not be entitled to take either a void or lapsed devise if the residuary clause be comprehensive enough to embrace it. To say this is simply to say that the intention of the testator shall govern, a thing nobody disputes. But whether the words be comprehensive enough must always be the question. I don’t think they are here.</p> <p>“ When a testator says that a devisee shall have one-third of his estate, there is no presumption that he is to have more. If he say he shall have one-third of his estate after legacies and debts are paid, this is a residuary devise, and if he say nothing more, it must be supposed he gives this, less the devises to others. This must be the extent of the devisee’s interest unless some other provision gives him more; hence my learned brother used the qualification that he might take more if the residuary clause was comprehensive enough to give more, but he did not mean that every residuary clause would give more than the residuum in contemplation of the testator when he wrote his will.</p> <p>“ I hesitate somewhat notwithstanding, in view of the case just referred to, to pronounce what I would do without hesitancy if it did not exist, to wit, that the heir at law in this case is entitled to recover. But I will do so, and will be corrected if I have mistaken the force or effect of that case.</p> <p>“ September 9th 1865, it is ordered that judgment be entered in favour of the plaintiff, for the one undivided sixteenth part of the messuage and lot of ground for which this suit was brought, &c.”</p> <p>This was assigned for error.</p> <p>The other case was an appeal by William P. Neff, Charles Neff and John R». Neff, Jr., executors, &c., of John R. Neff, deceased, from the decree of the Orphans’ Court of Philadelphia, on their account.</p> <p>The account having been referred to an auditor, — George Jun-kin, Esq., — he found that there was a balance of $150,260.57 in the executor’s hands for distribution.</p> <p>Under the will of the testator and the facts as stated in the foregoing case, the same questions were raised as to the distribution as in that case.</p> <p>The auditor, reported that Mary Jane Williams was entitled to one-sixteenth of the balance, being of opinion that as to James’s share of the residue the testator died intestate.</p> <p>Exceptions were filed to the report, overruled by the Orphans’ Court, and the report confirmed. From this the sons appealed.</p>

<p>1. A disposition of property to take effect after the grantor's death is testamentary, and therefore revocable.</p> <p>2. A power coupled with an interest cannot be revoked by the person granting it, but it is revoked by his death, for a valid act cannot be done in the name of a dead man.</p> <p>3. A grantor, reciting that in consequence of disadvantageous bargains, being old and feeble, having met with losses and being in debt, he was so troubled in mind as to be incapable to attend properly to business, and fearing that his affairs would fall into confusion and he lose his estate, to save himself from care and trouble, and further loss and destruction of property, conveyed all his estate to trustees to pay his debts and necessary expenses, support him for life, they submitting an account to him every year, and after his death divide the balance amongst all his children. Held, that this was a revocable grant.</p> <p>4. The grantor afterwards executed a deed revoking the grant. Held, that by the exercise of their powers by the trustees before the revocation, valid rights vested', and the titles they conveyed could not be questioned.</p> <p>5. As to the children named' in the grant, the deed being founded on no consideration from the trustees, and being simply to promote the grantor’s convenience and interests, it was at most a covenant for posthumous gifts, and as such nudum pactum.</p>

<p>Certiricates from Nisi Prius.</p> <p>These cases were three actions by The Commercial National Bank of Pennsylvania, one against Edwin it. Cope, one against Edward C. Wayne, and the third against Hiram Miller.</p> <p>They were on a several bond to the bank, dated February 1st 1865, in which Charles E. Clark was bound as principal in $15,000, and the defendants as his sureties in $5000 each, conditioned that Clark would perform all his duties and fulfil all his trusts as paying teller of the bank.</p> <p>The declaration alleged as breach of the condition, that the said Clark, on the 1st day of May 1865, failed to apply divers large sums of money, then and there delivered to him, and then and there in his possession, and to render unto the plaintiffs a just and true account of all moneys belonging to the plaintiffs, before and at that time intrusted to him by the plaintiffs, and received by him as such paying teller for and on behalf of the plaintiffs, and then and there became and was then still a defaulter to the plaintiffs in the sum of $398,000.</p> <p>Clark had been paying teller of the bank for some time before the date of the bond, and at that time was a defaulter to an amount over $300,000. The defalcation had begun a considerable time before. On the 1st of May 1865, Clark’s deficiency in his cash was found to be $157,987.78. The next day sixteen due-bills issued'by him, but not noted, came in — making the defalcation $398,559.23. He had authority to issue these due-bills, signed by himself alone, from a book furnished him, containing blank bills, with a margin to note the date and amount. He could pay checks on the bank either in currency or by these bills. No note had been made of the bills fraudulently issued. These bills being deposited by the holders in the banks where they had their accounts, were taken in packages to the Clearing House the next day, charged to the bank issuing them, and credited to the bank sending them. When returned to the Commercial Rank they were received and examined by Clark alone.</p> <p>■ On the trial (before Strong, J.), these due-bills, unstamped, were offered in evidence, and admitted. They were afterwards stamped, again offered and admitted, and exception taken. The defendants offered evidence that one of these due-bills had remained out for more than a month, to show that they were used as a circulating medium — this offer was rejected. Also, the bylaws of the bank, to show the duties of the cashier and directors, and that if these duties had been performed the defalcation would have been known when the bond was executed. This was rejected, except as to the duties of the paying teller. Also, that the president and cashier did not examine the due-bill book, the packages of due-bills, or count the cash. They also offered to show that the quarterly report of the bank was incorrect; also the record of a suit by the bank against Anspach, in which was an affidavit to hold to bail, averring a conspiracy between Clark and Anspach to defraud the bank, and that Anspach had defrauded the bank, between May 1863 and May 1865, of $235,000 ; that Anspach was arrested and discharged on bail, and the suit against him after-wards discontinued — all which were rejected, for all purposes except as to the affidavit, to show that the officer making it stated that the defalcation commenced before February 1865. To these rulings the defendants excepted.</p> <p>There was a verdict and judgment for the plaintiff in each case for $5000.</p> <p>The defendants assigned for error :—</p> <p>1 and 2. Admitting in evidence the sixteen due-bills before and after they were stamped.</p> <p>3. Rejecting evidence that one due-bill for $30,000 had been outstanding for one month, and was not referred to in the quarterly report of 2d January 1865.</p> <p>4. Rejecting the record of the suit against Anspach, except for the purpose of showing the admissions of the officers of the bank as to the origin of Clark’s defalcation.</p> <p>5. Rejecting the quarterly report of the bank 2d of January</p> <p>6. Rejecting, except as to the paying teller, the by-laws of the bank.</p> <p>7. Rejecting evidence that before and after the date of the bond no examination of the packages or due-bill books, and no count of the cash or assets in Clark’s hands, were made.</p> <p>8. Reply to defendants’ 3d point, that there was no evidence that the cash, in which Clark ran short on the 1st of May, was in his possession on or after the date of defendants’ bond, saying that there was evidence to support the averment of the declaration.</p> <p>9. Declining to affirm the defendants’ 6th point, to wit: “ The plaintiffs cannot recover by reason of due-bills which Clark issued under their authority, because such issue was unlawful, and prohibited by the Act of Congress regulating National Banks, which, provides for the circulating medium, and that no such association ‘ shall issue post notes, or any notes to circulate as money, other than such as are authorized by that act.’ ”</p> <p>10. Declining to affirm the defendants’ Tth point, to wit: “ That if the said due-bills be not circulating medium, they should have been stamped as due-bills, and for the want of such stamp were invalid and of no effect.”</p> <p>11 and 12. Declining to affirm the defendants’ 8th point, to wit: “ That Clark having, by authority or license of plaintiffs, issued due-bills which were illegal and void, any improper issue of such illegal bills is not a breach of the bond sued upon. The bond was not intended to cover the performance of illegal acts done with the consent or by the direction of the bank or its officers ; as the bond contemplates only the performance of lawful duties, the defendants cannot be held for the performance of acts prohibited by law, though directed by plaintiffs.” Saying, “ It assumes what cannot be assumed legally, and it is immaterial to these cases; I admit the bond does not cover illegal acts of Clark which he was directed by the bank to do.”</p> <p>13. Declining to affirm the defendants’ 9th point, viz.: “ That the due-bills were invalid and of no effect, by reason of their being unlawfully issued, and also by reason of their being unstamped ; and for either of these grounds the plaintiffs were under no obligation to pay them.”</p> <p>14. Declining to affirm the defendants’ 10th point, to wit: “ The payment by the bank was voluntary, without notice to the sureties, and such payment does not bind the latter.”</p> <p>15. Reply to the defendants’ 13th point, which was, the defendants are not liable for Clark’s improper use of an authority granted by plaintiffs to him to perform illegal acts. Reply, “ There is no evidence that the plaintiffs gave Clark authority to perform illegal acts ; and this point is irrelevant.”</p> <p>16. Declining to affirm the defendants’ 14th point, which was: “ It having been proved that Clark was a defaulter to the bank, at and for a long time prior to the date of the bond, and it not appearing that defendants were informed thereof by plaintiffs, the absence of such information discharges defendants, and this is equally the case whether the plaintiffs had and purposely withheld that information or were ignorant of the fact, where all the sources of information were within their power, so that with ordinary diligence, and in the performance of the duties imposed upon their officers, they must have learned of the defalcation.”</p> <p>17. Replying to the 14th point: “ The existence of a default prior to February 1st 1865, unknown to plaintiffs, will not avail these defendants as a defence.”</p> <p>18, 19, 20, 21. Replying to the defendants' 16th point, which was: “ If the jury believes that all the sources of information were within power of plaintiffs’ officers, and these officers neglected to attend to their duties (a performance of which would have enabled them to learn that on 1st of February Clark was a defaulter), then they cannot hold the defendants.” Answered: “ I see no evidence that the officers of the bank neglected to perform their duty in such a manner as would have enabled them on the 1st of February to ascertain that Clark was then a defaulter. Their not having counted the money under Clark’s control daily, or not at all, from November 1864 till February 1st 1865, and after, is no such default of theirs as releases the defendants. Had they made an examination on the 1st of February, they might not have discovered any default. They probably would not have discovered it on the 1st of May, if Clark had been able to obtain checks enough to fill his account for that day. But the mere fact that they might have discovered a default February 1st had they searched, is not enough to relieve the defendants.”</p> <p>22. Declining to affirm the defendants’ 17th point: “ Where security is given for one who is at the time actually a defaulter, and no information of such default is given to the security, it lies on the party taking the security and to be benefited thereby to prove to the satisfaction of the jury, either that he communicated the fact of defalcation to the security, or, if he did not, that it was not within his power by reasonable diligence to learn its existence.”</p> <p>23. Affirming the plaintiffs’ 1st point, to wit: “ That there is no evidence in the case, of any acts of the plaintiff, prior to, or at the date of the execution of the bond, which would relieve the defendants from liability under the bond.”</p> <p>24. Affirming the plaintiffs’ 2d point, to wit: “ That there is no evidence of any acts of the plaintiff, subsequent to the discovery of the defalcation, that will relieve the defendants of any liability existing at the date of such discovery.”</p> <p>25. Instructing the jury, that Clark testifies that on that day he issued due-bills to John Anspach, Jr., for something over $60,000, obtaining from Anspach about $30,000, or a little more, in checks, and nothing for the remainder. [If this is so, it was a clear violation of his duty to the bank, a breach of his trust, whereby the bank lost about $30,000. Anspach’s debt before (as appearing by his due-bill of March 27th 1865), was $2.01,000, and he obtained $30,000 more by this operation, without giving any vouchers or securities for the increase, so far as it appears. Thus, on that day Clark became an additional defaulter to the extent of about $30,000. This defalcation was after the bond on which this suit is brought was given; and if you believe from the evidence given that it occurred in the manner stated, and that the duties of Clark, as paying teller, were such as have been sworn to, it was such a breach of the condition of the bond as entitles the plaintiffs to recover against the defendants.]”</p> <p>26. Instructing the jury that, if they believed that on 1st May, Clark issued due-bills to Anspach for about $30,000, for which nothing was received, it was such a breach of the bond as entitled the plaintiff to recover.</p>

<p>1. It is a test of a witness’s competency that he is in no way involved in the final results of the verdict; an interest merely in the question goes only to his credit.</p> <p>2. In an issue between a prior and subsequent judgment-creditor of the same debtor, to try whether the bond upon which the prior judgment was entered, was executed by the debtor “ under a false representation as to amount of said bond,” the debtor is a competent witness for the creditors contesting the bond, although the contesting judgments might not take all the debtor’s property.</p> <p>3. The debtor was no party or privy to the issue, and he could not use the records in a direct contest against the creditor whose judgment was questioned, nor could it be used against him by the creditor to support the judgment.</p>

<p>1. Bast sued Anspach on a note at six months; in his affidavits of defence, Anspach averred that he had bought a colliery from Bast, to pay thirty cents a ton for coal mined until all the purchase-money was paid, Anspach to work the mine “ diligently and constantly ;” that he. gave the note in settlement of the purchase-money with an agreement that it was to be renewed, if enough coal had not been got out under the agreement to pay it at maturity, &c. Held, that the affidavits, if otherwise sufficient, were insufficient for not averring that the mines had been “ diligently and constantly worked.”</p> <p>2. Parol evidence of an agreement when the note was made, that it should be renewed at maturity, would contradict the written contract of the parties, and was therefore inadmissible.</p>

This was an action of ejectment by Abner Chapman against Alexander Calder, William C. Marshall and Walker Marshall, for a tract of about 30 acres of land.

<p>1. On failure to deliver specific articles contracted for, the damages are generally the difference between the contract price and the market price at the time for delivery.</p> <p>2. When the contract is to pay a sum of money in specified articles, the damages on failure are the interest of the money.</p> <p>3. When the contract is to pay for a thing purchased, a fixed sum of money in specific articles, the vendee has the option to pay in money or the articles.</p> <p>4. A vendee contracted to buy land for a price fixed, “ it being expressly agreed that the said payments are to be made in * * axes.” Held, that the vendee might elect to pay in money: held, also, that the measure of damages on failure of vendee was the interest of the money, not the profit which the vendor might have made on the axes.</p>

In Equity. This was a bill by Nicholas Frantz to restrain Jacob Robinson, Joseph Platt and Thomas Dickson, commissioners to carry out certain Acts of Assembly authorizing the raising money to pay bounties in the borough of Scranton, from collecting from the complainant the tax assessed for that purpose. In a case stated, it was agreed that the complainant is an alien, and the only question raised was whether as such he was liable to taxation.

This was a proceeding by libel, &c., in which John S. Pulis and George W. Stearns, partners as Pulis & Stearns, were libellants, against the canal-boat. “ Lady Jane,” and Jesse K. Sanborn, master. Pulis & Stearns, under a contract with Sanborn, who resided in New York, had done some work to the canal-boat; the work being unfinished and they not paid, they issued a foreign attachment against Sanborn, and attached the boat.

<p>Error to tbe Court of Common Pleas of Susquehanna county.</p> <p>This was an action of trover, commenced February 22d 1864, by Henry Abel, administrator, &c., of Silas Torrey, deceased, against Rufus Walworth, for a pair of oxen. Torrey in his lifetime was the owner of a farm, and on the 24th of September 1857 agreed in writing with Albert Capron, the husband of his granddaughter, to convey to him 40 acres, part of the farm, the object being the settlement of Torrey’s affairs, and “ to provide for himself and wife a maintenance and support during their declining years;” Capron to cultivate the whole farm in a farmerlike manner during the life of the survivor of Torrey and his wife, to deliver them one-half the produce, &e., and to do other things connected therewith, specified in the agreement; Capron to have “ also one-half the growth of the stock,” the use of farming utensils, &c., and when the half reserved for them, and Oapron’s services, should be insufficient for their “necessary wants,” Capron was to do “ for them whatever might be necessary for their maintenance and support,” the repayment to be secured to Capron on the remaining part of the farm. The oxen were bought by Torrey in his lifetime, and were on the place at his death, January 29th 1859; Capron exchanged the oxen with Walworth for a horse; there was evidence that they were worth about $25 more when exchanged than when bought by Torrey. The widow died January 1862.</p> <p>On the trial, before Streeter, P. J., the defendant offered to prove that “ A. Capron bought the interest of the three heirs of S. Torrey, deceased, in the land and in all the personal property of said decedent (including the cattle now in controversy), soon after the death of said Torrey; that said heirs were of full age at the time; that the widow of said Torrey also consented to it; that the consideration of his purchase was his agreement to support and maintain during their lives the said widow and Nancy (one of said heirs), and'to acquit and discharge said other two heirs therefrom ; that he also paid as a further consideration to Mary Baily (one of said heirs) $70; that in pursuance of said contract of purchase, Capron possessed and used the stock (including these cattle) and the place, and that he has ever since maintained and provided for the said Nancy, and that he did support the said widow during her life, according to said agreement; that there were no creditors of said Torrey or of said widow, or of Nancy, to complain of this arrangement; that Capron exchanged these cattle with defendant for a horse, which he brought on to the place and used (with another horse he had previously bought) as a team on the place, and that it was necessary that he should have a better team than the cattle were. This was done during the widow’s life, and with her knowledge and approbation.”</p> <p>The court rejected the offer, and the defendant took an exception. There was a verdict for the plaintiff, and this ruling was assigned for error. The defendant assigned for error, also, the following parts of the charge, to which the paper-books did not show that exception was taken.</p> <p>“ But had Capron such an interest in the property, as would constitute him a joint owner, or tenant in common? We think not. By the terms of the written agreement, Capron was to have one-half of the growth of the stock; and, although you should be satisfied from the evidence, that the cattle were worth at the time of the sale to Walworth, more than they were when Capron took possession of them in 1856, this fact, in the judgment of the court, would not make Capron a joint owner of the property; and his interest in or right to a share of the growth of the cattle, would not prevent the plaintiff from maintaining this action.</p> <p>“ Capron was a bailee of those cattle. He had the right to retain them for the purposes of the bailment, during the lifetime of the widow, Mrs. Torrey. But by his own act he determined the bailment; at that moment Torrey’s representatives have not only the title, but the right of immediate possession. We therefore instruct you- that the fact that Capron was to have the use of the team- of cattle till the death of Mrs. Torrey, would not be sufficient to defeat the plaintiff’s action.</p> <p>“ If you believe the plaintiff’s evidence, which is not contradicted by the defendant, the plaintiff is entitled to recover the value of the cattle at the time of the conversion, with interest up to this time.”</p>

<p>1. A township being in debt, four boroughs were erected out of it. An act was afterwards passed authorizing commissioners to ascertain the indebtedness of the township and the amount due from the boroughs respectively, and make a just distribution of the indebtedness between the township and boroughs, and requiring all persons having “ claims” to present them; an appeal was authorized from the decision of the commissioners “ on such claims.” Held, that an appeal was allowed only between the creditors and the township, and that the boroughs could not appeal from the apportionment of the debt.</p> <p>2. Municipal corporations being creatures of legislation, have no constitutional guaranty of trial by jury, and such trial may be denied to them.</p>

<p>Error to tbe Court of Common Pleas of Tioga county.</p> <p>This was an action of assumpsit, commenced January 1st 1861, by Lester Wilcox, George T. Perry and John Ecker, trading as Will-cox, Perry & Ecker, against Joseph H. Hoard, Joseph P. Morris, DeWitt C. Holden, James Lowry, William Bache and Thomas L. Baldwin, stockholders in the Mansfield Iron Works. The suit was brought under the Manufacturing Law of April 7th 1849, and its supplements. The plaintiff had previously brought suit against the Mansfield Iron Works on a note and recovered judgment, but realized nothing from an execution on the judgment. They then commenced this action on the same note, and obtained a verdict and judgment, which was reversed, because the Mansfield Iron Works was not joined (see Hoard v. Willcox, 11 Wright 51).</p> <p>After the remittitur, the court below, against the protest of the defendants, allowed the record to be amended by adding the “Mansfield Iron Works,” and permitted an amended declaration, to correspond with the parties, to be filed. The Mansfield Iron Works pleaded “former recovery,” to which the plaintiff demurred, and had judgment on the demurrer.</p> <p>On the trial, before White, P. J., the defendants asked the court to charge, “ that the Act of April 7th 1849, relating to' ‘manufacturing companies,’ together with the several supplements thereto, was not intended to create a primary liability of the company and a secondary liability of the stockholders, as far as relates to the form of action, but simply to give the right to a creditor, where suit is brought against a company, of joining one or more of the stockholders, and makes their liability depend upon the solvency of the company, to be determined by the issuing an execution and a return of no goods, and that the plaintiffs having recovered judgment against the company alone for the whole amount claimed in this case, no subsequent action can be maintained against the stockholders.</p> <p>“ 2d. That if any right of action against the stockholders remains to plaintiffs after having obtained judgment against the company alone for the whole amount of their claim, it must be enforced by a joint or several suit against the stockholders, and that the plaintiffs having recovered judgment in this ease against the company for the whole claim, and having brought suit in this case against' more than one and less than the whole number of stockholders, cannot recover.”</p> <p>The court negatived these points, and the jury gave the plaintiff a verdict for $800.46.</p> <p>Negativing the points was assigned for error.</p>

<p>Error to the Court of Common Pleas of Luzerne county.</p> <p>This was an action on the case, commenced November 28th 1863, by John Doak and wife, Joseph Fry and wife, William Hides, Rosanna Hicks, Elizabeth Seybert, Frances Seybert, M. Seybert, Sarah K. Seybert, Lydia A. Seybert and J. B. Seybert, against The Lackawanna and Bloomsburg Railroad Co., for burning a building of the plaintiffs. The building was near the railroad.- As a train of empty coal-cars was passing, the building was discovered to be on fire. The train was drawn by a coal-burning engine, on which there was no spark catcher. The day was dry and windy, and the train was running with ordinary care and skill. There was no direct evidence that the building was fired by the engine, or that sparks were emitted from it at the time.</p> <p>The court below directed the jury to ascertain the origin of the fire and the value of the building, reserving the point whether “ there is any evidence to submit to the jury Born which they can infer negligence.” The jury, November 22d 1865, found for the plaintiffs $189, and the court, on the 2d of Januai'y 1866, entered judgment on the verdict. This was the error assigned.</p>

<p>1. At the request of the owner of a freight ear’,-the agents of a railroad company attached his'oar to a passenger train contrary to the “instructions and rules” of the company; he agreeing “ to run all risks.” Held, that the company could not repudiate the act of their agents so as to free themselves from responsibility for negligence.</p> <p>2. The car was not unlawfully on the road, and the owner was entitled to compensation for iniurv from negligence to which the attaching his car did not contribute.</p> <p>3. The owner assumed only the risk of the act of attaching his car; not the risk of the negligence of the company’s agents.</p> <p>4. The owner agreed also to attend to the brakes on his car; this did not constitute him a person in the employment of the company, so as to prevent him from bringing suit against the company for damages for negligence.</p> <p>5. Cattle being on a railroad at the time of an accident raises a question of negligence, and whether it is imputable to the company is determinable only by the jury.</p> <p>6. If from the language of a judge, either through ambiguity or want of perspicuity, there is good reason to believe that the jury have been misled, the Supreme Court will reverse.</p>

<p>1. The 30th section of the Act of April 3d 1851, regulating Boroughs, although in terms it applies to “ any borough,” is limited to Boroughs created after the passage of that act.</p> <p>2. In Acts of, Assembly, generality of expression is often to Be restricted,. By regard to the suBjechmatter in respect to -which it has Been used.</p> <p>3. The purpose of the Act of 1851 is to form a system for the regulation, of Boroughs incorporated after its passage.</p>

<p>Error to tbe Court of Common Pleas of Bradford county.</p> <p>This was an action of debt, commenced January 3d 1863, by Wellington H. Tyler against Michael Meylert and Christopher L. Ward. Ward alone was summoned, and Tyler having died, George D. Montayne, his administrator, was substituted. The action was brought by Tyler as endorsee on the two following notes, which were made by Meylert:—</p> <p>[Ward. v. Tyler.]</p> <p>“ $1108.80. New York, March 6th 1857.</p> <p>“ Four months after date we promise to pay to order of Lackawanna Railroad Company Eleven Hundred and Eight 780°„ Dollars, at Messrs. E. W. Clark, Dodge & Co., New York, value received.</p> <p>(Signed) “ Meylert & Ward.</p> <p>“ Endorsed—</p> <p>“ Lackawanna Railroad Company,</p> <p>W. H. Tyler, General Agent,</p> <p>William Jessup,</p> <p>W. H. Tyler.’</p> <p>“ 1509.95. New York, April 10th 1857.</p> <p>“ Three months after date we promise to pay to order of Lackawanna Railroad Company Fifteen Hundred and Nine Dollars, at Messrs. E. W. Clark, Dodge & Co., New York, value received.</p> <p>(Signed) “ Meylert & Ward.</p> <p>“ Endorsed—</p> <p>“ Lackawanna Railroad Company,</p> <p>W. H. Tyler, General Agent,</p> <p>William Jessup,</p> <p>W. H. Tyler.”</p> <p>Meylert & Ward were contractors with the Lackawanna Railroad Company for making their railroad, &e.; and having finished one division of it, the company, on the 12th of August 1856, took the contract off their hands, and there was then a final settlement between all the parties to the contract. The points of defence by Ward were that at the date of the notes the partnership did not exist, and that they were not given for partnership purposes. The principal question considered in the Supreme Court was the competency of Judge Jessup as a witness. The Pittsfield Bank, who had been holder of the notes as endorsee of Tyler, recovered judgment for $5587.19 against him in Massachusetts on them and the following draft:—</p> <p>“ Office of the Lackawanna Railroad and Coal Company,</p> <p>“ 2450. New York, May 7th 1857.</p> <p>“Three months after date please pay to the order of W. H. Tyler, Esq., General Agent, Twenty-four Hundred and Fifty Dollars, or advise this day, and charge to this office.</p> <p>Your obedient servant,</p> <p>“ William Jessup, President.</p> <p>“ To Michael Meylert, Treasurer Lackawanna Railroad Co.</p> <p>“ Endorsed—</p> <p>“ W. II. Tyler, General Agent,</p> <p>William Jessup,</p> <p>Michael Meylert,</p> <p>W. H. Tyler.”</p> <p>The hank made from the property of Tyler $3018.50, and also recovered judgment against Jessup in Pennsylvania as endorser of the same notes and draft, and realized from Jessup about $2600, the balance due upon them., Tyler before the trial released Jessup “ from all obligations as my endorser on the aforesaid notes.”</p> <p>The plaintiff then offered in evidence the deposition of Judge Jessup, which was admitted against the defendant’s objection, and an exception taken.</p> <p>The defendant offered in evidence the suit of the Pittsfield Bank, in Luzerne county, against Meylert & Ward (Meylert alone having been summoned), as drawers of the two notes, in which there was judgment against Meylert for $2732.80, and Judge Jessup became bail for stay of execution. On objection by the plaintiff this offer was rejected and an exception taken.</p> <p>The defendant asked the court to charge:—</p> <p>1. If the jury believe that the notes in controversy were made or put in circulation by Meylert, without the consent of Ward, after the partnership work was completed, then the plaintiff is not entitled to recover.</p> <p>3. Should the jury believe that the consideration of the notes grew out of the partnership matters of Meylert & Ward in the construction of the railroad, and that they were made and put into circulation after the work was fully completed by Meylert without the knowledge of Ward, then he would not be liable on them, unless he has done something since the notes were put in circulation, which would make him liable.</p> <p>4. Should the jury believe that the defendant is liable in this suit, then that the plaintiff in this case can only recover a proportional amount of what he paid at the suit of the Pittsfield Bank, which the claim in this suit bears to the whole amount of the judgment in that case, and that the defendant is entitled to a set-off against this on the amount paid on these notes as sworn to by William Jessup.</p> <p>5. The partnership shown here was a special one, legally terminating on the completion of the object or purpose for which it was formed, which in this case was when the railroad was completed, the coal shafts opened and accepted by the Lackawanna Railroad Company. The notes in this case having been made to that company after such termination of the partnership, it was necessarily affected by notice that Meylert had no power to bind his former partner by the notes in question.</p> <p>The court (H. W. Williams, P. J.) charged, amongst other things:—</p> <p>“ But if the business of the partnership was not closed (although the work mentioned in the settlement of 11th August 1856 may have been finished), and the notes in suit were given for partnership purposes, while the business of the firm was in process of settlement, then we instruct you that the notes are binding upon the partnership and on the defendant as a member of it.”</p> <p>And on the points of defendant:—</p> <p>“ 1. We affirm this point, substituting the wprd ‘business’ for the word ‘ work.’</p> <p>“ B. We affirm this point, with the qualification that we have made to the 1st point.</p> <p>“4. We deny the doctrine of this point so far as relates to the appropriation of money raised on the judgment in favour of the Pittsfield Bank, and affirm so much as relates to the application of the payments shown by the testimony of William Jessup.</p> <p>“5. We affirm the first part of this point, adding that notwithstanding the' dissolution resulting from the completion of work, the partnership still existed for the purpose of settling and closing up its business, including debts due to and from the partnership. As to the last part of this point, we instruct you, that if you find the fact assumed, then Tyler’s position, as we have already said, will justify the inference of notice.”</p> <p>There was a verdict for plaintiff for $2990.13.</p> <p>The rulings on the evidence were the 1st and 2d errors assigned. The above portion of the charge was the 6th error. The answers to the 1st, 3d, 4th and 5th points of the defendant were the 7th, 8th, 9th and 10th errors.</p>

<p>Error, to the Court of Common Pleas of Susquehanna county.</p> <p>This was an action of ejectment, by George A. Strupler and Susan his wife, against B. Glidden, for a lot of land, the property of the wife. Mrs. Strupler entered into a contract, Signed only by herself and not acknowledged, to sell her lot for $65. Ten dollars of the purchase-money and a year’s interest were paid to her. The purchaser took possession, commenced building a blacksmith shop which was blown down, he hauled the materials away, and assigned his contract to the defendant, who erected on the lot a house worth $850. The Struplers lived on the adjoining lot whilst the improvements were being made, and made no objection. The husband and Glidden referred a dispute about their boundary line to referees to fix. Mrs. Strupler expressed a desire that Glidden would go on with his building, and that he would not put windows in the side of the house next to her, and Glidden accordingly did not put them in. She also expressed satisfaction that he had got the property.</p> <p>The court below held that these facts did not estop the plaintiffs from recovering, and a verdict being rendered for them, this was the substantial error assigned.</p>

<p>Error to the Court of Common Pleas of Northumberland county.</p> <p>This was an action of trespass, commenced October 24th 1862, 'by Sebastian Haupt against David Waldron and others, for -taking certain goods claimed by him. The personal property of James Vandyke, a hotel-keeper in Sunbui’y, was sold under an execution at the suit of Haupt, bought by Haupt, and sold to the wife ■ of Vandyke under an agreement that when she paid Haupt the full ■amount of the purchase, the property was to be hers. The property was left in her possession at the same house, and she afterwards made some payments on it. Subsequently it was sold by Waldron, the sheriff, as Vandyke’s, on other executions, and Haupt brought this action of trespass.</p> <p>On the trial a witness testified that whilst the sale by Waldron was going on, he had made a list of the articles sold. The plaintiff then offered the list in evidence ; it was objected to on the ground that the articles in it had not been shown to be the same as those bought by Haupt at the first sheriff’s sale. The evidence was admitted, and an exception taken.</p> <p>The court (Jordan, P. J.) charged the jury, among other things:—</p> <p>“ That if they found that the plaintiff, Sebastian Haupt, purchased the property, or a part of it, at the coroner’s sale, he had a right to permit the property to remain in the possession of Mrs. Vandyke, the wife of James Vandyke, and make with her an agreement to sell it to her at a stipulated price, and that she was to become the owner of it on the payment of the whole of the purchase-money, and that such agreement is not 'fraudulent either in law or fact, and would protect the property from levy and sale under another execution against James Vandyke.</p> <p>“ If the sale was an absolute one the plaintiff cannot recover. If it was a conditional one, Mrs. Vandyke to retain possession, and she to become the owner when paid for, such agreement does not preclude the plaintiff from recovering.”</p> <p>And denied the following points of the defendants:—</p> <p>1. The plaintiff having sold the goods to Mrs. Vandyke, the wife of James Vandyke, immediately after the coroner’s sale, he had not such a lien on them as would enable him to take them into possession, and consequently cannot maintain trespass against David Waldron, former sheriff, for levying and selling them on executions issued against James Vandyke afterwards, or against the other defendants, for bidding and urging on the sale of said goods.</p> <p>2. The agreenient under which James Vandyke held possession of goods after the coroner’s sale cannot be regarded as a hiring or a loaning, but as a purchase by which the plaintiff in this suit has parted with his title and right of possession, and cannot maintain trespass against anybody for taking it.</p> <p>The verdict was for plaintiff for $478.75.</p> <p>The errors assigned were admitting the evidence, .and the instructions to the jury.</p>

<p>Error to the Court of Common Pleas of Northumberland county.</p> <p>This was an action of assumpsit, commenced March 3d 1862, by Elizabeth Hause against J. S. G-ilger, administrator, &c., of A. W. Hause, deceased, husband of the plaintiff, for money alleged to have been lent by her to him in his lifetime. Hause had been convicted of counterfeiting and imprisoned for seven years. The evidence of the loan was in letters and declarations of Hause. In one letter to his wife he spoke of “ the $135 you paid for mein another, “ I will pay you all due debts and demands there was also an order to her to pay “ Mrs. Tenbrook what money she wants to attend to obtain a pardon for me,” with her receipt for “ $15 on order.” A witness testified that Mrs. Hause gave him “ $135 or $150 on Hause’s account.” There was evidence that she paid other sums, which she claimed as her own, and when Hause was told of it, that he said it should be all right if he got out; and that he had borrowed sums of money from her. There was also evidence that Mrs. Hause had money of her own at the time of her marriage, and that there were other sources from which she might have derived money. It was also in evidence that she occupied a tavern and farm of her husband’s whilst he was in prison, and that he had furniture and other personal property on the place. There was no evidence that Hause named a definite sum as his indebtedness to his wife.</p> <p>The court (Jordan, P. J.) charged, that under all the evidence the plaintiff was not entitled to recover; and there being a verdict for the defendant, this was assigned for error.</p>

<p>Error to the Court of Common Pleas of Union county.</p> <p>This was a scire facias sur mortgage, issued May 2d 1864, by James F. Linn and Levi Sterner, executors, &c., of Nicholas Mensch, deceased, against John Youngman and Jesse M. Walter.</p> <p>On the 1st of April 1851 Mensch sold to Youngman and Walter a tract of land. Part of the purchase-money was secured by the mortgage in suit, of which $6000 was to be paid “ three years after the death of said Nicholas Mensch, and upon the further consideration that the title to the land this day sold and conveyed by the said Mensch to the said John Youngman and Jesse M. Walter be by that time assured and confirmed, and particularly an agreement between the said Mensch and one H. Hughes, dated the Ylth of November 1840, be rescinded, otherwise not to be payable until said title be fully assured;” the interest, however, thereon, was payable yearly, and has been paid.</p> <p>Mensch died October 4th 1854. The agreement referred to granted to “ Hughes, his heirs or assigns, the exclusive right and privilege of searching for, digging, raising and carrying away from off the lands hereafter described,” being part of the tract conveyed to defendants, “ all the ore,” &c. This agreement through various assignments passed to Clement & Masser, who, November 28th 1854, brought an ejectment against the defendants “ for a certain limestone quarry containing about three acres,” part of the land included in Hughes’ agreement. In that suit there were a verdict and judgment for the defendants, which was affirmed by the Supreme Court (4 Wright 841). The record of this judgment was offered in evidence by the plaintiff and received, and exception taken by the defendants. There was no evidence of any use having been made by Hughes or his alienees of the rights granted by the agreement. By direction of the court the jury found for the plaintiff $5635.80.</p> <p>The errors assigned were the admission of the evidence and the instructions to the jury as contained in the specifications, viz.:—</p> <p>2. “ It is now some twenty-four years since this agreement was made, and they (Hughes and his alienees) have lain by so long that they have forfeited any right they might have had under the agreement; this, then, being the case, and this agreement having become null and void, or rather a presumption having arisen from lapse of time that this agreement was released or given up, the plaintiffs have in effect complied with their stipulation in the condition of the bond, and are entitled to recover the balance of this bond, to wit, $5400 and interest from April 1st 1864.”</p> <p>3. “The facts as exhibited in the cause amount to substantial compliance with the proviso, and, therefore, the plaintiff is entitled to recover.”</p> <p>4. “ The title, as appears in this case, has already become assured to the defendants.”</p> <p>5. Refusing to instruct the jury, “ that plaintiffs having neither averred or proved that the agreement of the 17th day of November 1840, between Holker Hughes and Nicholas Mensch, is rescinded, cannot re'cover.”</p> <p>6. Refusing to answer the defendants’ 4th point; “ That no evidence having been given by plaintiff of non-user, they cannot rely upon the limitation of twenty-one years elapsing since the date of the agreement, as fulfilling their obligation to have the Holker Hughes agreement rescinded, and the title to the lands assured and confirmed to the defendants.”</p>

<p>1. Where one accused of crime has been discharged by the examining magistrate, the burden of showing probable cause is thrown on the prosecutor in an action against him for malicious prosecution.</p> <p>2. Probable cause does not depend on the actual state of the case, but upon the honest and reasonable, belief of the party prosecuting.</p> <p>3. Probable cause is a reasonable ground for belief of guilt, without regard to what induces the belief if it be reasonably sufficient.</p> <p>4. Floating rumours are not an adequate foundation for such belief, but representations of others, especially of those who have had opportunities for knowledge, or who have made an investigation, are.</p> <p>5. A murder having been committed, the defendant employed detectives, who discovered facts, tending to show the guilt of the family of which the accused was one; the facts were reported to the defendant and his counsel, who advised a prosecution. Held, that he had reasonable ground for belief, and that probable cause had been shown.</p> <p>6. There is always a presumption in favour of the decisions of the courts below. The plaintiff in error therefore must furnish to the Supreme Court the means of determining with certainty, and in such a case as an action for malicious prosecution, the whole evidence duly certified must be given.</p>

This was an attachment execution, issued December 31st 1863, by George M. Steinman and Charles Regnier, trading as George M. Steinman & Co., against Abraham T. Bair, in which Martin Groff, Jr., was garnishee. The plaintiffs held a judgment against Bair for $158.48, on which they issued this attachment. On the 1st of January 1864 the sheriff attached all the property of defendant in the hands of Groff; and notified Bair, who made no claim for his exemption.

<p>Error to the Court of Quarter Sessions of Cumberland county.</p> <p>Theodore E. Henwood and Edward Arney were charged in an indictment of three counts: — The first, for actual larceny of two horses and a buggy: the second, for larceny as bailees of two horses and a buggy, and the third, of a conspiracy to defraud James S. Sterrett of two horses and buggy, and attempting to sell them, &c. The offences severally charged were all the same transaction. The jury found the defendants guilty on the first and third counts, and not guilty on the second. After denial of a motion for a new trial and in arrest of judgment, the court sentenced them to the penitentiary, Henwood for two years, and Arney for one.</p> <p>The errors assigned were: overruling the motion in arrest of judgment, and the refusal of the court to compel the district attorney to elect on which count he would proceed.</p>

<p>Appeal by Jacob S. Coover from the decree of the Register’s Court of Cumberland county, confirming the grant by the register of administration on the estate of his wife, Leah Coover, to her father, Christian G-leim.</p> <p>In October 1865, Coover, being accused of adultery, left home with the knowledge of his wife, but there was no evidence of desertion. She afterwards corresponded with him by letter in an affectionate manner till near her death, about December 6th 1865. Letters of administration on her estate were granted to her father on the 9th of same month, Coover being still absent. On the 2d of January, Coover, still being absent, appealed by Wilson, his attorney in fact, from the grant of administration. On the 20th of January an information was made before a justice against Coover for adultery, and a warrant of arrest was placed in the hands of the constable, who was unable to find him.</p> <p>The court below (Graham, P. J.) held that the appeal might be made by the attorney in fact, but that Coover was not entitled to administration, saying in his opinion,</p> <p>“ It is clearly proved, and not controverted, that the husband is a fugitive from justice. He committed the crime of adultery, and left the country some months before the death of his wife, and up to the present time none of his former neighbours or relations who have testified in this case, have any knowledge of his present locality. * * * When a person has violated the laws and has become a fugitive, to escape criminal prosecution and the penalty imposed upon the guilty, he has no right to claim those peculiar rights and privileges which the Commonwealth confers upon her unoffending citizens; and when a husband commits the crime of adultery and to escape arrest and punishment flies from the officers of the law, leaving a fond and affectionate wife to pine away and die broken-hearted a few months after her husband’s absence, and then asks, through the agency of an attorney, that which he dare not appear to ask in person, that the letters granted to the father of a deceased daughter shall be revoked in favour of the nominee of her absconding husband; we do not consider that the law demands compliance with such a request.</p> <p>“But aside from this, there is a fatal objection to granting letters to the nominee of the husband’s attorney. Jacob S. Coover, the husband, does not authorize Mr. Wilson, his attorney in fact, to apply for letters of administration to him, but to his father, or to any other person or persons that his said attorney in fact shall name, and Mr. Wilson asks that letters may be granted to Samuel Coover, the father of Jacob S. Coover. It is well settled that the person entitled to administration, for instance the widow, cannot, if she declines, substitute another in her place to the exclusion of the next of kin. [See Williams’ Appeal, 7 Barr 259; McClellan’s Appeal, 4 Harris 110, and Hinney’s Appeal, not yet reported, and the authorities there cited.] But it is argued that the husband being exclusively entitled to the personal estate of his deceased wife on failure of issue, the father is not a party in interest, hut stands in the position of a stranger, and the register is required to regard the nominee of the husband in exclusion of strangers. But in this case the father claims to be the distributee of his daughter in exclusion of the husband; that the husband, by his criminal conduct and absence from his wife, comes within the provisions of the Act of 4th May 1855, Pamph. L. 430, and is not entitled to the estate. This raises a question of distribution which the Register’s Court cannot decide, but the evidence before us shows that the personal estate of the decedent is claimed by her husband and by her father. This question can only he determined when the estate is brought into the Orphans’ Court for distribution. But this prevents us considering the father as a stranger. He ^claims to be the only distributee of the deceased, and so does her husband. We cannot now decide the question of distribution. The husband does not ask for administration, but that the father be passed by and letters granted to a stranger.”</p> <p>This decree was assigned for error.</p>

<p>Error to the Court of Common Pleas of Lancaster county.</p> <p>On the 19th of May 1863, Miller obtained a judgment against Boyd and wife, before a justice, for $55.63, on a promissory note signed by both, for the debt of the husband. • Defendants took an appeal in due time, but it was not entered in the Common Pleas. The husband died September 2d 18o4; a transcript was entered in the Common Pleas December 16th 1864, and an execution issued out of the court. On the 24th of March a rule to open the judgment was discharged, and on the 19th of August 1865, a rule to restrain the plaintiff from levying on the wife’s property was discharged. Discharging the rules was assigned for error.</p>

This was an amicable action and case stated, between Carey W. Ahl and Michael Gleim and Ephraim Shelley, collectors of South Middleton township, Cumberland county. Ahl and his family resided in Carlisle, but he had property in South Middleton township; none of his relations subject to draft resided in the township. The questions submitted to the court were :— 1.

<p>1. A decedent died seised of real estate, leaving a widow and three daughters ; ■ the husbands of two of the daughters accepted the land in right of their wives in proceedings in partition, and entered into recognisance to the widow and three daughters for their shares ; they paid the recognisance of the third daughter, and then one of the husbands and his wife conveyed their interest to the other husband, whose interest in the land, his wife being dead, was sold by the sheriff. Held, that the sale passed only the fee simple in two-thirds, and the husbands’ curtesy in the other third.</p> <p>2. The husbands acquired but a life estate in their wives’ shares and a fee in the residue, and giving recognisances to the respective wives, did not alter the rule.</p> <p>3. If a husband accepts the wife’s share she has no owelty to receive; a recognisance given by the husband to her is inoperative.</p>

<p>In ejectment the general-issue plea is Not Guilty, and under it, coverture or any other available defence may be taken.</p>

<p>Error to tbe Court of Common Pleas of Lancaster county.</p> <p>This was an action of assumpsit, commenced October 5th 1863, by Daniel S. White and John A. Swope, trading as White & Swope, against Elizabeth J. Reigart.</p> <p>The declaration averred that one Emory desired to purchase goods of the plaintiffs, “ to be paid for in nails,” and the plaintiffs were willing to sell the goods if the defendant would “ undertake to be responsible for the delivery of the nails,” and that the defendant, “ in consideration that the plaintiffs would at her special instance and request sell and deliver the said goods, &c., to the said Emory, undertook and promised the plaintiffs to be responsible to them for the delivery of the nails accordingly by the said Emory,” at the expiration of the term of credit; averring further the sale and delivery of the goods, that the term of credit had elapsed, and Emory had not delivered the nails, &c. There was also a count for goods “ bargained and sold to defendant, and by virtue of the sale delivered” to Emory at her request.</p> <p>On the trial, before Long, P. J., the plaintiffs proved that about September 1860, Emory was endeavouring to buy goods in Baltimore, and selected some goods of the plaintiffs to be paid for in nails, but that they were not willing to deliver the goods until Emory gave them satisfactory security, and the goods were held by them for that purpose. The defendant afterwards wrote the following letter to another firm in Baltimore, with whom Emory had been dealing:—</p> <p>“ Duncanville, Blair county, September 20th 1860.</p> <p>“Messrs. Reynolds & Stevenson: — You will please ship immediately to T. S. Emory the bill of goods purchased from you, and referred to in your letter of the 18th to him. I will be personally responsible to you for the delivery of the nails as agreed by him.</p> <p>“ Will you, in addition, please say to Messrs. George Howard & Co., and Messrs. White, Swope & Co., from each of whom he has purchased a bill — in case they have not shipped them — to ship immediately, and I will be responsible for the delivery of the nails as agreed by Mr. Emory.</p> <p>“Yours, respectfully, “ E. J. Reigart.”</p> <p>This letter was shown to the plaintiffs, and the goods were delivered to Emory, but there was no evidence that the plaintiffs gave Mrs. Reigart notice that they had accepted her undertaking. Three of the defendant’s points were:—</p> <p>1. The paper of defendant given in evidence was not a proposal to purchase on her own account, but an offer to guaranty the purchase by Emory.</p> <p>2. As an offer to guaranty, it required notice of acceptance to make it binding, and as this has not been proven, the plaintiffs cannot recover.</p> <p>3. To recover on a guaranty, it must be shown that the original debtor has been pursued to insolvency, or is insolvent; and this not having been sufficiently done in the present case, the verdict must be for defendant.</p> <p>The court affirmed the 1st point and denied the others.</p> <p>The court reserved these questions : —</p> <p>I. Whether notice to the defendant of acceptance of the obligation was necessary ?</p> <p>2- Whether it must be shown that the debtor had been pursued to insolvency or is insolvent ?</p> <p>The jury found for the plaintiffs $966.40, for which the court afterward entered judgment on the reserved points.</p> <p>The answers to the defendant’s 2d and 3d points, and entering-judgment on the reserved points, were assigned for error.</p>

<p>1. A case was commenced before a justice on a claim not “exceeding $100 •” judgment was rendered for $99.32, and on trial in the Common Pleas a judgment for $75 recovered, which was reversed by the Supreme Court, and on another trial the verdict and judgment were for $124. The court refused to set aside the judgment, &c., on the ground of want of jurisdiction in the justice. Held, not to be error.</p> <p>2. The defendant having neglected during all the proceedings to object to jurisdiction, it was not error in the court to refuse to inquire into the factson which jurisdiction rested.</p>

<p>Error to the Court of Common Pleas of Lebanon county.</p> <p>This was an action of trespass quare clausum fregit, commenced August 15th 1864, by George Illig against William Moyer, in which the plaintiff filed an affidavit that the damages exceeded $100.' There was a verdict and judgment for plaintiff for $45, and the defendant obtained a rule for entering the judgment without costs, which was afterwards discharged on the following opinion by Judge Pearson :—</p> <p>“ The Act of 1814 gives jurisdiction to justices of the peace in actions of trespass, where the damages alleged to have been sustained shall not exceed $100. Alleged how and where ? We answer, in the plaintiff’s narr. It is the allegation there made which in all similar cases gives jurisdiction to the courts. Such is the case as to the District Court of Philadelphia: see 9 S. & R. 299, 300; 1 Id. 269; 3 Id. 461; 2 Browne 271; and the courts of Nisi Prius in cases of tort: see 5 Binn. 522; 1 S. & R. 269. Such is also the case as to the United States Circuit as distinguished from the District Courts. There is nothing in this act requiring an affidavit before bringing suit in the common-law courts, that the claim exceeds $100, as is required by the Act of 1810. It is true the 4th section directs the same course of proceeding, but that does not refer to the jurisdiction but to the process, trial, appeal and method of collecting the judgment. We are therefore well satisfied that the jurisdiction of the Common Pleas exists in all actions of trespass quare clausum fregit,where the plaintiff lays his damages above $100, and no penalty of non-collecting costs is imposed for want of an affidavit that the claim exceeds $100. It is perhaps improper for us to reason on this subject, as the very point is decided in Clark v. McKisson, 6 S. & R. 87, by a unanimous opinion of the Supreme Court; and Mr. Justice Gibson there declares, that it had been previously so ruled in another case not yet reported. We must take it as a matter of faith, not of reason, until that case is overruled by the tribunal which made it. But it coincides with our reason as well as our faith. We believe the jurisdiction of the justices of the peace and Courts of Common Pleas is concurrent in all cases arising under the 1st section of the Act of 1814. The validity of that decision has never been questioned during a period of forty-five years, and it has ruled hundreds of cases in the several courts of the state. No good could arise from overruling it now. It is supposed to be affected by what is said in Louer v. Hummel, 9 Harris 450, but that was made in a cause arising under the 6th section of the act, in relation to rents. There is an obvious distinction between the wording of the 1st and 6th section. The first merely confers jurisdiction on the justices, but does not take away that of the common-law courts. The sixth directs that rents shall be recovered as debts of similar amount are by law recoverable, plainly referring to the Act of 1810, when the sum was under poo.</p> <p>_ ££ If it had been the intention of the Supreme Court to overrule Clark v. McKisson, it should have said so in explicit terms ; it is not even intimated to be unsound.”</p> <p>Entering the judgment without costs was assigned for error.</p>

<p>Under the Act of Assembly, only the plaintiff who is nonsuited can take a writ of error ; the defendant can take none for refusal to order a nonsuit.</p>

<p>Under the Act of March 25th 1864, § 12, a borough whose authorities had paid no bounties to volunteers cannot levy a tax to pay bounties to veterans, although bounties have been paid to volunteers by the voluntary subscriptions of the citizens.</p>

<p>1. Section 48 of the Act of March 29th 1832, does not prevent conversion of a wife’s real estate into personalty by an Orphans’ Court sale, but restricts the husband’s interest in the proceeds, and determines to whom the purchase-money shall belong subject to his interest.</p> <p>2. The proceeds of such sale are to be distributed to the same persons and in the same proportions as the land would have been had the wife died seised.</p> <p>3. It is not a regulation of the time of permitted enjoyment, but a designation of distributees.</p> <p>4. A decedent died seised of real estate, whicb was sold under Orphans’ Court partition. The wife died leaving her husband and three children, two of whom died intestate. Held, that their shares in the fund were personalty, and passed to their father. The wife’s share vested in her children at her death, but the time of enjoyment was postponed till the death of the husband.</p> <p>5. The act extended no further than to regulate the first descent; after it vested in the heirs it was no longer real estate for any purpose.</p>

<p>Error to the Court of Oommon Pleas of Dauphin county.</p> <p>This was an action of debt, commenced June 17th 1865, by the Commonwealth against the City of Philadelphia, for taxes due by the city. On the trial, November 27th 1865, the Commonwealth offered the account as settled by the auditor-general, January 26th 1865, and approved by the state treasurer on the same day, showing a balance due the Commonwealth of $502,489.86, with interest from January 15th 1865 ; with credits, allowed for payments since, reducing the claim to $439,228.34, which was admitted by the court against the defendant’s objection, and an exception taken. The court (Pearson, P. J.) charged the jury as stated in the specifications^ error, and there was a verdict for the Commonwealth for $439,228.34.</p> <p>The errors assigned were, admitting the account, and charging:—</p> <p>1. il That under the Act of 1811 in relation to public accounts, and its various supplements, the auditor-general and state treasurer had authority to settle the accounts of indebtedness by cities and counties to the Commonwealth for state taxes.</p> <p>2. “ That the Acts of Assembly on that subject are constitutional.</p> <p>3. “ That the settlement made by those officers is conclusive of the amount due, unless appealed from in the mode prescribed by law, provided notice of such settlement has been given by the department, and where not given is primd facie evidence of the sum in arrear — is not conclusive, but may be impeached or corrected on the hearing.</p> <p>4. - “ That the papers in evidence with the parol proof are sufficient to enable the Commonwealth to recover, as nothing has been established or offered to show any error in the account. All of the subsequent payments made by the city must be allowed, and the verdict of the jury rendered for the balance as struck by the department, with legal interest after three months from the date of settlement. This after deducting the credits.”</p>

<p>Error to the Court of Common Pleas of Blair county.</p> <p>This was an action of covenant by Daniel Beatty to the use of A. L. Patterson, against the Lycoming County Insurance Company. The plaintiff claimed for loss by fire on two policies of insurance, one on a house and one on goods. The question below was whether the house described in the policy as containing the goods was the one which was burned.</p> <p>The court below charged: “We are of opinion there can be no recovery on the other policy for the loss of the furniture and groceries, for the reason plainly as we think disclosed, and shown, we think clearly, by a comparison of the applications and the policies, that the furniture and goods were not burned in the building in which they were insured.”</p> <p>The jury found for the plaintiff $660.20, the loss on the building only; and the charge of the court, as above stated, was assigned for error.</p> <p>The facts of the case are fully set out in the opinion of Justice Strong.</p>

<p>1. Easton gave a due-bill to McClure to protect him, inter alia, in any future liabilities he might incur for Easton, and judgment was entered on it; two days after the entry McClure signed notes for Easton, and afterwards, on the same day, Roman entered a judgment against Easton. In distribution of Easton’s estate, the notes and Roman’s judgment were to be paid pro rata.</p> <p>2. The liability incurred by McClure by the notes, could not be carried back further than their date : the notes and Roman’s judgment were to be treated as judgments entered on the same day.</p>

<p>Error to the Court of Common Pleas of Lancaster county.</p> <p>This was an action of assumpsit, commenced February 2d 1864, by Henry Baumgardner against Abraham Collins, for failure 'to boat coal in accordance with the following written contract, made April 3d 1863 :—</p> <p>44 It is agreed between Henry Baumgardner of the first part, and Abraham Collins of the other part, as follows: The party of the second part agrees to boat five thousand tons of coal from Wilkesbai're to Columbia, at two dollars and thirty cents per ton, and two thousand tons from Pittston to Columbia, at two dollars and forty cents per ton. This coal to be boated at the rate of four boat-loads per week, from the time of operations on the canal until the quantity specified is delivered. The coal is to be discharged at the expense of the party of the second part, and in consideration for the above, the party of the first part will pay the cash as soon after the delivery of the coal, as the demand for the same may be made. The coal to be boated from Wilkesbarre at the shipper’s weight, and that from Pittston at the Beach Haven lock weight.”</p> <p>The plaintiff gave the contract in evidence, and it was admitted that only 3997f tons of coal were delivered under it. He also proved the rise in freight, and other matters bearing on the question of damages.</p> <p>The defendant offered to prove that when the parties entered into the written contract he 44 insisted upon having the business done promptly, so that he could have the fall of the year to himself, and that Baumgardner said that he would set up derricks, so that the unloading would be prompt, and assured him that there should be no detention in the loading or unloading which was overruled and exception taken.</p> <p>The defendant gave in evidence the following letter of May 6th 1863</p> <p>44 Mr. Abm. Collins:</p> <p>44 My Dear Sir:</p> <p>441 am informed that the Messrs. Smiths, of Pittston, have sold out, and are not mining coal; consequently will not send the coal which was to make the complement from Pittston. I have not yet heard from them, but, if they cannot send me the coal, I presume it will make no difference to you to boat more from Wilkes-barre and less from Pittston, to make up the 7000 tons. * * *</p> <p>441 would prefer if you would not send the boats to Pittston, until I have a little better understanding with the parties there.</p> <p>44 Bespectfully yours,</p> <p>44 Henry Baumgardner.”</p> <p>The defendant’s points and the answers of the court (Hayes, A. J.) were:—</p> <p>1. That under all the testimony in the case, the defendant was under no obligation to carry coal from Pittston after the receipt of plaintiff’s letter of May 6th 1863.</p> <p>Answer: “ If, on the,receipt of the letter referred to, Mr. Collins had chosen to take the residue of the coal all from Wilkes-barre, and had so informed Mr. Baumgardner, he would have been relieved from the obligation of carrying any more from Pittston. Mr. Collins returned no answer to that letter, and his obligation, therefore, remained to deliver all the residue of 7000 tons as he had contracted, or according to the suggestion of the letter, to which he made no objection.”</p> <p>2. That the defendant was under no obligation to carry coal from Wilkesbarre in place of what he had undertaken to carry from Pittston.</p> <p>Answer: “ This was the effect of the contract, as it was first agreed upon and concluded; but the terms might be varied as to the quantities deliverable from the two places respectively, by the understanding and consent of the parties, without releasing or relieving either party from other stipulations of the contract.”</p> <p>3. The plaintiff having declared in a single count upon an entire contract to transport coal from Wilkesbarre or Pittston, and the defendant being released from the Pittston part of the contract, there can be no recovery under this declaration.</p> <p>Answer: “ This point assumes the fact that the defendant was released from the Pittston part of the contract on the score of the letter of the 6th of May, referred to in the 1st point. The letter is a suggestion, submitting it to the election of the defendant to carry a larger quantity from Wilkesbarre and less from Pittston than the contract called for; and the defendant proceeded with his carrying without any answer to the plaintiff’s suggestion. Under these circumstances there was no release which would operate to preclude the plaintiff from recovering under this declaration.”</p> <p>4. That if the jury believe that the defendant was prevented from performing the contract by the acts or omissions of the plaintiff or his'agents, there can be no recovery in this case.</p> <p>Answer: “ This point is correct in its conclusion upon the fact supposed, if the supposition be true ; that is to say, if the defendant was prevented from performing the contract by the acts and omissions of the plaintiff or his agents. That is one of the questions which the jury have to decide according to the evidence. * * * If he was not absolutely prevented from completing his contract, he is responsible for not completing it.”</p> <p>On the question of damages the court charged: “ It is not difficult to determine by calculation the aggregate of freights on 3002J tons at the prices stipulated, taking the proportions between the supplies from Pittston and Willcesbarre respectively, and the respective prices as mentioned in the contract and then from the evidence of the rise in prices as the season advanced, to ascertain the sum .which the plaintiff was obliged to pay for chartering other boats. [If in addition to that difference he was put to trouble and expense in procuring other boats, allowance may be justly claimed for these. Again, if all his efforts were ineffectual, and his supply was insufficient and much less than it would have been had the contract been fulfilled by the defendant, whereby in consequence of deficient supply and increased price of coal he sustained loss and injury in his business, such loss would be another element of the damages properly claimed in this suit; and if he incurred expenses on account of his expected receipt of this coal under the contract, which he would not otherwise have encountered, these may also be added in making up the amount of damages.”]</p> <p>There was a verdict for the plaintiff for $2000.</p> <p>■ The errors assigned were: 1. The rejection of defendant’s offer of evidence: 2, 3, 4 and 5. The answers to the defendant’s four points: and 6. The part of charge included in brackets on the question of damages.</p>

<p>These were appeals from the decree of the Court of Common Pleas of Centre county, distributing the proceeds of sale of the land of William Underwood.</p> <p>One was by Conley, the sheriff, who had the money in his' hands, and the other by Ensworth and Moore, claiming the money against Warner’s executors. Underwood was the owner of a large tract of land, much encumbered. Some of the liens were judgments to a large amount, due Joseph Warner’s estate. Proceedings having been commenced on a judgment anterior to Warner’s, Ens-worth and Moore purchased the land from Underwood, and also purchased Warner’s judgments for $30,000, payable in seven notes of Ensworth for $20,000 in the whole, with interest, at different periods, the last on June 1st 1869, and one note from Moore for $10,000, payable, with interest, at different periods, the last on November 1st 1868, for which Warner’s executor gave the following receipt:—</p> <p>“ Received, May 3d 1864, of L. A. Ensworth and A. C. Moore; the aforesaid described eight judgment-notes, which, when paid, will be in full payment for the two judgments against William Underwood within stated, debt and interest now due and hereafter to become due, and also to make a deed to the said Ensworth and Moore for the tract of land in Rush township, commonly called the Joseph North tract, when said judgment-notes are fully paid. When all the notes are paid in full the plaintiffs, executors of Joseph Warner, deceased, will assign and transfer the two judgments against William Underwood formally to the said Ensworth and Moore, their heirs and assigns, but to be revived and collected at their own risk and expense. The two judgments are to remain in the names of the present plaintiffs for their security until all the aforesaid judgment-notes are paid. If the said Ensworth and Moore fail to pay one of the notes for the period of sixty days after it becomes due and payable, the said executors may, if they see proper, treat all the’aforesaid judgment-notes as payable at the expiration of the said sixty days, and may, if they will, then collect all the notes in the same manner as if they had been made payable at that time, and the executors may also, if they will, then have sold any land of William Underwood, the defendant, under the judgments or either of them. If from any unforeseen cause the said Ensworth and Moore should pay part of the aforesaid judgment-notes, and be unable to pay the whole of them, and the plaintiffs have the lands of Underwood, the defendant, known as the Beaver Mill lands, sold, and that land is bought by any person other than the .plaintiffs, and the plaintiffs receive from the proceeds of such sale the full sum of their two judgments, principal and interest, then they will return to Ensworth and Moore what they may have paid, with interest thereon from the time of payment. The plaintiffs in said judgments will not proceed against the Beaver Mill lands for any other debt they may have against the said Underwood, except only these two judgments. The said Ensworth and Moore may at any time they see proper pay all the aforesaid judgment-notes as if they were then due and payable, and the executors will then accept the money with interest to the time of payment.”</p> <p>In pursuance of the agreement at the time of sale of Warner’s judgments, judgments were entered upon the notes in Lycoming county, and became liens upon lands of Ensworth and Moore there.</p> <p>The court decreed that $15,207.50 should be paid to Warner, the amount due him on Ensworth’s notes, and $5782.54, the amount due on Moore’s notes.</p> <p>This decree was assigned for error.</p>

<p>This was an appeal by the Commonwealth from the decree of the Register’s Court of Lebanon county, fixing the amount of valuation for collateral inheritance tax on the estate of Robert W. Coleman, deceased.</p> <p>Robert W. Coleman having died, and his estate passing collaterally, the appraiser valued his estate in Pennsylvania at $1,887,176.80, being real estate, and also his estate in New York, liable for tax, at $11,714.92, the estate there consisting of both real and personal estate, and the debts exceeding in amount the personal estate.</p> <p>The administrator of the decedent appealed from the assessment. The court (Pearson, President of Common Pleas) refused a motion to quash the appeal, disallowed the assessment on the New York property, and reduced the whole valuation in Pennsylvania to $567,385.13.</p> <p>From this the Commonwealth appealed, and assigned for error— Refusing to quash the appeal, and deciding that the estate in New York was not liable for the collateral inheritance tax.</p>

<p>1. A township being unable to procure volunteers under the Bounty Baw of 1864 for $3o0, the citizens voluntarily advanced money to pay bounties beyond that amount, with the understanding that it was to be repaid when a law was passed authorizing taxation to repay them. An act was passed authorizing taxation to repay all “ loans made in good faith.” Held, that this law authorized the repayment of the sums so advanced.</p> <p>2. The loans contemplated were not loans in a legal sense, they had reference only to claims upon the conscience and moral sense of the community relieved thereby.</p> <p>3. The Constitution of the United States must have a strict construction; that of the state a liberal one. Congress can pass no laws but such as the Constitution authorizes; the state legislature can legislate on all subjects not prohibited.</p> <p>4. The power of the legislature to tax is-without limit, and may be applied to all objects promotive of the general good, although remote and indirect.</p> <p>5. The maxim “ omnis ratihabitio retrotrahitur et mandato ceguiparatur,” applies to the public as well as to individuals.</p> <p>6. The legislature has the power to legislate retrospectively in all matters not penal, not in violation of contracts, and not forbidden by the Constitution; and can act directly on individual rights.</p>

<p>Error to the Court of Common Pleas of Centre county.</p> <p>This was an action of replevin, commenced November 9th 1864, by John Gann against R. D. Cummings, for a mare, in which the sheriff returned that he had replevied the property and delivered it to the plaintiff. The defendant pleaded non cepit and property.</p> <p>Cummings was an innkeeper in Bellefonte : in the fall of 1864, two men on horseback stopped at his house. Suspecting their horses to have been stolen, he took possession of them, sent for the sheriff and had one of the men placed in custody — the other having escaped. Before Cummings sent for him, the sheriff had received this despatch from the plaintiff:—</p> <p>“ Jersey Shore, November 8th 1864.</p> <p>“Rec’d. Tuesday November 8th 1864, 11 o’clock A. m.</p> <p>“ Stolen, on the night of November seventh, a black mare six years old next spring, with colt; star in forehead, small white streak down face, little to left, white left hind foot. A reward of fifty dollars will be paid for her recovery.</p> <p>“ John Gann.”</p> <p>The despatch was shown to Cummings by the sheriff, and he had been told by a son of plaintiff that such reward would be offered. The mare was in the possession of Cummings, who claimed the reward. He allowed the son of the plaintiff to take the mare to a blacksmith shop near to be shod, which being done she was left there. The sheriff also claimed the reward, but offered to give Cummings half, which he declined, and said he would hold the mare till he got all. The reward was paid to the sheriff: the replevin was then issued, and the mare taken by the sheriff at the shop and delivered to the plaintiff’s son.</p> <p>On the trial, principal challenges by the plaintiff were made to several jurors propter affectum, because they were boarders at the time of trial with the defendant at his inn. The court sustained the challenges against the objection of the defendant, and an exception was taken.</p> <p>The plaintiff gave in evidence his despatch to the sheriff, and then offered the sheriff’s reply, viz;:—</p> <p>“November 8th 1864.</p> <p>“ John Gann,</p> <p>“ Limestone Township,</p> <p>“ Jersey Shore.</p> <p>“ I have mare corresponding to your description, also sorrel horse three years old, thief escaped but men after him.</p> <p>“It. Conley,</p> <p>“ Sheriff.”</p> <p>Which was admitted by the court against the defendant’s objection, and an exception taken. *</p> <p>The replevin bond was in the penalty of $400 — George W. Tate and Alfred Gann being the sureties. That they might be witnesses the plaintiff, by leave of the court and against defendant’s objection, paid into court $400, “to be and remain as a surety to the defendant in lieu of the bond taken by the sheriff,” and it was ordered that “ the obligors in said replevin-bond * * be released from all liability thereon.” To this order, &c., an exception was taken. Tate and Gann, the obligors, were then severally offered as witnesses, objected to on the ground of interest, but admitted and exceptions taken.</p> <p>The plaintiff then offered “ in evidence the record of a suit Philip Newman v. R. D. Cummings, No. 115, November Term 1864. Replevin for one bay mare of the value of $65. Replevied and delivered to plaintiff 8th November 1864, in connection with proof that on the night of the 7th November 1864, Philip Newman, the plaintiff, came to the office of McAllister & Beaver, in which he (the witness) was a student at law, and desired a writ of replevin for the horse described in the writ, alleging that a horse thief had traded him a horse stolen in Clearfield county for his horse, which he understood was in the possession of R. D. Cummings ; That wit-.. ness wrote the prcecipe, procured the writ, placed it in the sheriff’s hands and went with Mr. Newman and the sheriff to Cummings’s house; That Newman stated to Cummings that the horse described in the writ was his, that a horse thief had traded him a horse stolen in Clearfield county, and thus got from him the horse in Cummings’s possession; That the owner of the horse traded to him had come on from Clearfield, proved his ownership and taken him away ; That the sheriff opened the stable and delivered Newman the horse described in the writ, and Newman got on him and .started home.” Which being objected to by defendant, was admitted and exception taken.</p> <p>The court, amongst other things, charged:—</p> <p>“ In this case a telegraphic despatch was sent by the plaintiff to the sheriff of this county, notifying him of the theft, and offering a reward of $50 for the recovery of the horse. This despatch was retained by the sheriff in his own possession, and the defendant knew nothing of it until the horse had been placed in his stable ; and the sheriff, when he was brought there to arrest a person suspected of horse stealing, discovered that the horse in dispute answered the description given him by the plaintiff. [The despatch being directed to the sheriff specially, the offer of reward was to him individually, and we therefore instruct you that the defendant cannot claim the reward of $50 because he is not embraced in the offer.] * * * To us it seems that the offer was made to the sheriff to stimulate him to use extraordinary vigilance and activity to recover the stolen property. The despatch contains no direction to him to give notice of tlfe theft and the reward offered ; but puts him on the alert, and offers him an inducement to extra exertion. [From this it follows as a necessary conclusion, that the defendant had no lien on the horse, and no right to detain him for the reward; and if he did so, after request for its delivery by the plaintiff or his agent, the detention was wrongful.] This disposes of the issue joined upon the plea of property.”</p> <p>Also; “ George W. Tate testifies that up to the time when the plaintiff’s son went to an attorney’s office to procure the issuing of the writ of replevin, the defendant refused most positively to give up the horse unless upon payment of his demand of the entire reward. When the writ did issue and was served, he then alleged that the agent was a fool for issuing a writ for property of which he was already in possession. [But then he afterwards rules the plaintiff to declare, and then pleads, not non cepit alone, but up to the present moment he is insisting on the plea of property. He cannot be allowed to play fast and loose in this way ; first compelling the plaintiff to resort to legal proceedings, and then, when -a writ is issued, denying that he has possession of the horse.”]</p> <p>Also; [“ Ordinarily, in cases like this, no more than compensatory damages for the wrongful detention can be given, but though this is the general, it is not a universal rule; but where there are peculiar circumstances of oppression or vexation, the jury may go beyond it and give exemplary damages.] Under these instructions you will determine whether the plaintiff is entitled to recover. If he is, then you will find such damages as you think him entitled to under the evidence and the rules just stated to you.”</p> <p>There was a verdict for the plaintiff for $63.75.</p> <p>The errors assigned were: — allowing the challenges; admitting the several offers of evidence excepted to ; allowing the plaintiff to pay the amount of the replevin-bond into court and releasing the sureties; and the several parts of the charge contained in brackets.</p>

<p>1. In the 6th section of the Act of April 22d 1856, the expression “ with right of entry,” means that if there be neither entry nor possession taken by the party in whose favour the trust results, within five years after it accrues, and no acknowledgment in writing, the trust cannot be asserted against the trustee.</p> <p>2. Entry is a lawful remedy by act of the party; it is equal to livery of seisin, or to a possession essential to a parol sale of lands. It is referable to nothing but title under the trust and in execution of it.</p> <p>3. Every possession where there is title is supposed to be in subordination to it; it is notice of it to all the world; most clearly so to the trustee.</p> <p>4. A case where the cestui que trust has possession during the period in which the statute is running, is not within the words of the statute or the mischief to be prevented.</p> <p>5. If possession preceded the trust relation, the statute would not begin to run ; it would be entry.</p> <p>6. Miller v. Eranciscus, 4 Wright 341, qualified.</p> <p>7. When both parties claim under a common source of title, neither need go farther back than such title.</p> <p>8. A record having been destroyed, a witness offered to prove its contents was improperly rejected.</p> <p>9. The entry of a mother as a member of and with the family of which her son was one, was not an entry under colour of title, so as to be a starting-point for the running of the Statute of Limitations; it could not run against the son without ouster and exclusive possession.</p>

<p>Appear from the decree of the Court of Common Pleas of Lancaster county ; In Equity ; by Peter Diller and Sarah his wife in her right.</p> <p>Peter Diller and wife filed their bill against John R. Brubaker and Philip Brubaker, setting forth that Mrs. Diller borrowed from defendants $1000 on a pledge of eighty shares of the stock of the Atlantic and Ohio Telegraph Company, Peter Diller at the same time giving his note for the sum; averring payments of interest and receipts of dividends in excess of the loan and interest, and praying for an account and retransfer of the stock. The defendants answered, averring countervailing fact&, and “ a full settlement,” denying liability, &c. There was a general replication, proofs were taken, and the case came up on the pleadings and proof.</p> <p>On the 10th of October 1855, Diller wrote to John Brubaker, saying, he wished “ some person to advance me money on twenty or thirty shares” of the stock, at $25 per share, to be returned in four or five months; “ or if after holding the stock awhile, I have no objections to their keeping the stock.” Afterwards the loan was made from Brubaker, and the following note and receipt given:—</p> <p>“ Nine months after date, I promise to pay to John R. Brubaker and Philip Brubaker, or order, their heirs or assigns, the sum of One Thousand Dollars, lawful money, without defalcation, for value received, with interest till paid, at the rate of 9 per cent, per annum. Witness my hand and seal, this 31st day of October, a. d. 1855.</p> <p>“Peter Diller, [l. s.]”</p> <p>“ Received, Philadelphia, October 31st 1855, of Mrs. Sarah Diller, a certificate, No. 103, for eighty shares of the stock of the Atlantic and Ohio Telegraph Company, which I hold as collateral security for the payment of One Thousand Dollars, loaned her this day, with interest until paid.</p> <p>“John R. Brubaker.”</p> <p>On the 14th of May 1861, Brubaker transferred sixty-three shares of his own stock to D. Brooks. On the 16th of June, by power of attorney, he transferred Mrs. Diller’s eighty shares to himself. On the 8th of July 1862, he transferred twenty shares, part of the eighty, to Sarah Vogdes.</p> <p>Oh the 4th of May 1863, Diller, by writing, directed Brubaker to transfer sixty shares to Raley, “ on his paying you $1000 ; also adjust with Raley the interest of the loan and dividend over the stock as you may think just and right.” The order being sent by Raley, Brubaker sent the letter given below, which being shown to Diller, he wrote the memorandum at the bottom:—</p> <p>“ New Holland, May 6th 1863.</p> <p>“ R. F. Raley,</p> <p>“ Dear Sir:— -</p> <p>“I received yours of 5th inst., enclosing an order from P. Diller for the transfer of sixty shares of Atlantic and Ohio Telegraph stock, which I cannot now do., as .the money advanced was due seven years ago. Owing to this, and not expecting that he would ever redeem it, and not wishing to have nearly all my funds invested in fancy stock, I sold mine for 18.25, and had his, after transferring twenty shares to his sister Sarah, retaining sixty shares, which at the rate I sold mine, and the money paid over to Sarah, made the amount of my claim. Now, I think, in justice, he should not ask it; I know that I would not. The stock has advanced, that is true; but suppose we would reverse the case, and the stock had been destroyed. How — where should I 'look to for my claim ? Would it be fair that I should risk my money without having some benefit of the advance ? But since he has seen hard times, I will do for him what no sane man would do — I will make over and transfer to you for him, twenty shares as at present. I expect to visit Philadelphia some time in June, so you may settle with him for that much.</p> <p>"Yours</p> <p>“ J. R. Brubaker.”</p> <p>“ R. E. Raley has settled with me for the above twenty shares; please transfer to him.</p> <p>“Sarah Diller,</p> <p>“per P. Diller.”</p> <p>On receiving this order, Raley sold the twenty shares for $800, which he paid to Diller; and, May 25th, returned to Brubaker his letter of the 6th with the appended order, telling him he had paid Diller for the stock, and asking a power of attorney to transfer ; which was sent. Diller then wrote to Brubaker:—</p> <p>“ Philadelphia, May 26th 1863.</p> <p>“ Mr. J. R. Brubaker,</p> <p>“ Dear Sir:—</p> <p>“ When on a visit to this place a few weeks since, I requested Mr. Raley to state to you that I was ready to pay you the money borrowed some years since. .</p> <p>“ Your reply to his letter was handed me, and I was completely taken aback. I have always taken, and believe you to be an honest and worthy man — and will still think so.</p> <p>“ The loan was made with honest purpose, and would have been returned, if my life had been spared, under any and all eircumstances; and further, if our postal arrangements had not been interrupted, I should have satisfied you of my ability to do so before this. To your inquiry of where you should get your money in the case the stock should prove worthless, I will let you to answer, when I tell you I came to New York with 286 bales of cotton weighing 142,580 lbs., in which I am interested, and as regards your making me a present of twenty shares, it looks well on paper, but will not do to talk about. I sold the twenty shares, the receipt of which is hereby acknowledged. I have acknowledgments from you at home, and will bring them with me in the fall, when we will settle, this matter to our mutual advantage. However, as a compromise, if you will transfer to Sarah Vogdes ten shares, and return my note to Raley, I will be satisfied; and you may retain the amounts above $1000 and all interests as a present for your kindness.</p> <p>“Yours, &c.,</p> <p>“P. Diller.”</p> <p>On the 2d of June 1863, the twenty shares sold by Raley were transferred to Bates, and the same day twenty shares to Philip. Brubaker — John Brubaker still retaining twenty shares.</p> <p>Raley, in his testimony, amongst other things, said:—</p> <p>“ I understood the settlement between Mr. Brubaker and Mr.. Diller, through me, to be a settlement in full. Mr. Diller made-objections to the terms of the settlement as being hard, but I thought he accepted them, and said he would write to Mr. Brubaker ; I would not have paid for the stock before I received the certificate from Mr. Brubaker, if I had thought that it was still an unsettled matter. There was not a great deal said at the time of signing the order; I communicated the letter to him as the answer of Mr. Brubaker, to the claim made upon him at Mr. Diller’s instance.” * * *</p> <p>“ At the time of signing the order, before the order was signed —before I had paid for the stock, and before the matter was finally settled, as I thought, Mr. Diller said that if Mr. Brubaker would transfer to Sarah W. Vogdes ten shares of stock in addition to this twenty he would settle in full. After he signed the paper, he said he would write to Mr. Brubaker, but he did not say what he would write.”</p> <p>He also said, “ Diller did not acquiesce in the terms of Brubaker’s settlement” * * “in so many words, but -from what he said and did, I gathered the impression that he did, and I paid money on it.”</p> <p>The court below (Long, P. J.) was of opinion that “ the matter in controversy was settled and compromised by the parties,” and dismissed the bill, which was the error assigned.</p>

<p>1. The sale of a railroad, &c., under the Act of April 8th 1861, does not extinguish the corporation, but creates the purchasers a body corporate with all the rights, &c., of the corporation whose property they have bought.</p> <p>2. Irregularities in the organization are not necessarily fatal to the being of the corporation; organization is but the creation of an agency by which it can act; it presupposes its existence.</p> <p>3. The directions in regard to organization are not conditions of its being ; not following them, will at most, work a forfeiture and enable the Commonwealth to retake the franchises ; it cannot entitle her to judgment that the franchises do not exist.</p> <p>4. Under an original grant of corporate rights, the grantee must comply strictly with all the conditions precedent to the taking effect of the grant.</p> <p>5. By the Act of April 8th 1861, all acts subsequent to organization are to be done by the company, and not by the agents for organization.</p> <p>6. The issue of certificates of stock to the appointees of the purchasers, is an issue to the purchasers themselves.</p> <p>7. The statutory direction to “ determine the amount of the capital stock,” does notmean to ascertain the actual cash value put in by the purchasers, but to determine into how many shares of the nominal value of §50 each, the property and franchises should be divided.</p> <p>8. A proviso in an act prohibited the company from using any railroad, turnpike or artificial road, without obtaining the consent of the “ parties owning the same.” Held, that they could not use the paved streets of Philadelphia without the consent of the councils.</p> <p>9. Graded and paved streets in a city are artificial roads.</p> <p>10. A private corporation claiming franchises against public rights, must show clearly that.they are entitled to their claim; if the charter leaves the right doubtful, it will be resolved in favour of the Commonwealth.</p> <p>11. To give effect to a statute repealing a former statute, the repealed statute must be so pointed to, as to leave no doubt what statute was intended.</p>

<p>Error to the Court of Common Pleas of Dauphin county.</p> <p>This was an action of replevin, commenced July 29th 1863, by R. C. Hoover against Abraham C. Epler, to recover a stallion belonging to Hoover, in which a case was stated for the opinion of the court.</p> <p>Hoover, in January 1863, made a contract with Epler to take charge of his horse until the 1st day of August for $100; to attend him in the best manner, and obey Hoover’s instructions. The horse was to be stationed at different places, afterwards fixed and advertised: the horse was fed at Epler’s stable and at other places where he was stationed, and Epler had him shod and groomed. To the owner of one of the stables Epler gave his note for $31 for the horse’s keep. He declined to give the horse up to Hoover, claiming the right to hold him for his own hire, $100; for the feed, &c., furnished by himself; and also for the bill of keeping for which he had given his note.</p> <p>The court (Pearson, P. J.) gave judgment for the defendant.</p>

<p>1. As a general rule judgments conclude only parties and privies ; terretenants not served may take any defence in an after suit, they should have taken in the original action.</p> <p>2. The contract of guaranty is conditional on the creditor’s diligence to collect the debt; but mere delay will not release a surety; to be released he must demand proceedings with notice that he will not be bound, if they are not instituted.</p> <p>3. A surety is the insurer of the debt; a guarantor, of the solvency of the debtor.</p> <p>4. One of four guarantors was sued for the debt of the principal, and a judgment recovered against him for the amount, which he paid. In a suit against a co-guarantor for contribution, it was held, that the judgment was not conclusive on the latter, who might take every defence he could have taken in the original suit, had he been notified, including want of due diligence in the creditor in collecting the debt.</p>

<p>1. The order of examination and cross-examination is much within the discretion of the judge at trial, but the latitude should not extend to give an undue advantage to one party.</p> <p>2. Cross-examination is regular only when confined to the testimony of the witness in chief; £i defendant cannot introduce his defence by cross-examining to matters not before testified to.</p> <p>3. In a question whether a sale of goods was bona fide, there was evidence that the vendee after the sale said they belonged to the vendor. It was error to instruct the jury that if they believed the plaintiff “ disclaimed all ownership of the property/'’ they should find against him.</p> <p>4. Such disclaimer was evidence against the vendor, but did not estop him, unless some one had acted upon it to his injury.</p>