Volume 54 — Pennsylvania State Reports

<p>1. Questions were reserved and after verdict there was a motion for a new trial; entering judgment on the reserved questions was substantially overruling the motion without distinct action on it.</p> <p>2. The action was for injury to the reversion in taking out coal and turned upon the title to the coal: a lessee of the surface was a competent witness for plaintiff.</p> <p>3. A conveyance by husband and wife directly to her use, when not in fraud of creditors is sustainable in equity in this state, although in a common-law action.</p> <p>4. An objection that the title was not sufficiently set out in the narr. avails nothing after verdict; it was amendable and will be regarded as amended after trial on the merits.</p> <p>5. Clarke in 1832 conveyed ooal under his land to Kennedy; the deed was recorded in December 1834. Neel bought the land by articles in February 1834, took possession, and paid all the purchase-money, before he had notice of Kennedy's title; his articles were not recorded; the land was conveyed in 1835 and recorded in 1836. Held, that the title of Kennedy had precedence.</p> <p>6.. The receipt in a deed for the consideration is good against the grantor and those deriving title subsequently from him.</p> <p>7. A subsequent purchaser to be first in right against a prior purchaser must be first on the record ; payment of purchase-money and possession with improvements are not savings in favor of a subsequent purchaser, under the 5th section of Act of 1775.</p>

<p>1. PIuss v. Stephens, 1 P. F. Smith 282, affirmed.</p> <p>2. The grantor in several deeds, gave them to a third persou with directions to hand them after the grantor's death to the persons to whom they were made, or have the deeds of such as might be minors recorded; they were so handed over’and recorded respectively. Hdd, that the delivery was perfect.</p>

<p>1. The Acts of 17th of April 1861, its supplement of 1862, of April 14th 1863, of March 31st 1864, relating to Warren and Tideoute Railroad Company, &c., authorized the Warren and Franklin Railway Cpm.pany to make a railroad from Irvine to Oil City on the west bank of the Allegheny river.</p> <p>2. A company was authorized to hold land and “ mine for coal oil and other minerals, cultivate and improve,” &e., and also “ to construct a l’ailroad or railroads from any other lands to connect with any road or to any navigable stream,” &c. If they had no land they could build no road, and could only build from their own land to carry off its products.</p> <p>3. They could not build a railroad independent of their own lands for the mere accommodation of the public and for the company’s pecuniary profit arising only from general travel.</p> <p>4. A proviso to the law was that “ the said roads do not exceed twenty miles in length.” Held, that all the roads together could not exceed twenty miles in length.</p> <p>6. The terminus a quo must be on the company’s land, and if the beginning be illegal there is no lawful railroad.</p> <p>6. When the railroad reached a navigable stream or other railroad it ended.</p> <p>7. A bill was filed by a railroad company and a motion for an injunction to restrain another company from building a road; the motion was denied, and an answer was put in under a rule. Held, that the defendants had actual notice that their title was disputed, and that they went on with the road at their peril before the final hearing.</p> <p>8. A motion for injunction may be made at any time before final decree, and on the motion the answer is regarded only as an affidavit of the defendant.</p>

<p>Appeal from the decree of the Court of Common Pleas of Philadelphia : In Equity.</p> <p>This proceeding was commenced by bill by the Germantown Water Company against William McCallum, filed November 7th 1862. The bill set forth that the complainants were incorporated on the 29th of March 1851, for the purpose of supplying the citizens of Germantown with water, and were authorized to purchase and hold springs and streams of water and lands to which they may be appertenant, and to erect necessary works: that in pursuance of this authority they purchased a tract of land on both branches of Crab creek, or Paper Mill run, and the right to use the water of said run and its tributaries, and erected a dam, reservoirs, engine-house, &c., with all the necessary apparatus, at great expense, and had from that time been supplying water to the people of Germantown from these works: that at the time they acquired these rights to the water it was pure and unpolluted, and neither the defendant or any other person had a right by prescription or otherwise to use the waters so as to corrupt of pollute them; that until within four or five weeks of the filing of the bill the water had been pure, but at that time it had become contaminated and impure by substances introduced into it from the defendant’s factory, located on the said creek, above the complainants’ works : that the factory of the defendant had until lately been used for manufacturing carpets, and whilst so used had done no injury to the complainants, nor polluted the water; but that recently the defendant had been using his factory for making blankets, and since such use, had contaminated the stream by substances from his factory, which made the water unwholesome and unfit for .drinking purposes: and prayed for an injunction restraining the defendant from polluting the waters, &c.</p> <p>The case was heard below on a motion for a special injunction and upon affidavits.</p> <p>The court then refused to grant the injunction ; but appointed a commission, composed of Dr. R. E. Rogers, Dr. Joseph Leidy and Strickland Kneass, to examine and report as to the causes of the alleged nuisance.</p> <p>The commission reported January 12th 1868, detailing the particulars of their examinations, and declaring as their conclusion “ that the source of the impure water can be traced only to the carpet works.” One of the commissioners, Mr. Kneass, added to his' report that “ a simple arrangement of piping from the factory, or a subsiding or storing reservoir for this refuse, would prevent all trouble.”</p> <p>On the 16th of February 1863 the court granted a special injunction, and security was entered November 14th 1863.</p> <p>On the 15th of January 1864 the defendant filed his answer, setting forth that the premises on which his factory was erected were owned in 1813 by Jacob Clemens, who had then on them a woollen factory, and that he and his successors carried on the manufacturing of woollen goods until 1831, when the premises were conveyed to Andrew McCallum, for the firm of A. McCallum & Co., of which the defendant was the other member; that the refuse water and materials resulting from the manufactures were then discharged into Paper Mill run, and were carried past the site of the complainant’s works into the Wissahickon; that A. McCallum & Co., upon their purchase, commenced, as their principal business, the manufacture of woollen carpets, but from time to time, as the demands of trade warranted, made baize, blankets, &c.; that A. McCallum in 1855 devised these premises, with other estate, to the defendant, and he having associated with him other partners, the firm has carried on the same branches of woollen manufacture till the time of the answer; that in September 1861 the firm commenced making blankets for the United States, and have continued, with the intermission of a few months, to use their mill in part for that manufacture, making carpets in conjunction with the blankets; that Clemens, the original owner, and his successors, including the defendant, have used the water of Paper Mill run for making steam, washing, dyeing, and all other purposes incident to the manufacture of woollen goods, and have discharged the refuse water into the stream at pleasure ; that the defendant has- not since the commencement of the manufacture of army blankets discharged into the run any new or unaccustomed deleterious substance, nor has he increased the discharge of refuse matter ; that Paper Mill run is the natural and necessary means of drainage for a thickly settled tract of country for over two miles above the plaintiff’s works, and this drainage must, from the nature of country, for ever pass along the run; that the complainants, at the time of their incorporation and the building of their works, were aware of the existence of the defendant’s mill and his usage to discharge its refuse water into Paper Mill run ; were acquainted with the other causes of the impurity of the stream, and did not rely on it solely, but undertook to lead water from springs in the vicinity to their works, and constructed appliances to carry away impurities from the stream. The defendant submitted to the court that the plaintiffs could not, after such knowledge and recognition of his right, have an injunction against him till the title shall be decided at law ; and averred that the plaintiffs have no rights, in respect to Paper Mill run inconsistent with the defendant’s right to discharge the refuse waters from his mill into the run in the course of his business, and that he had the full right to discharge the refuse water from his factory into Paper Mill run in such manner as might be necessary in the course of his business, without let or hindrance from the plaintiffs or any other persons.</p> <p>The plaintiffs afterwards filed a replication, and an examiner was appointed.</p> <p>The testimony taken related to the character of the water as to purity before and after the winter of 1861-62, and the length of time for which the defendant and his predecessors had discharged the waste water and refuse matter from the factory into Paper Mill run. A synopsis of the testimony is found in the opinion of his Honor, Judge Read. After hearing, the Court of Common Pleas (Ludlow, A. J.), on the 30th of December 1865, decreed that the injunction formerly granted in this case, on the 16th day of February 1863, be made perpetual.</p> <p>The defendant appealed, and assigned for error that the court erred: — 1. In granting the injunction prayed for in the plaintiff’s bill.</p> <p>2. In not limiting the decree to the enjoining of the defendant from discharging any refuse matters from the factory into the stream which should be in excess of what he had a prescriptive right so to discharge therein.</p>

Richard M. Wistar. On the 24th of July 1831, Dr. Wistar conveyed to Isaac Davis in trust, all his land out of the city of Philadelphia. A statement of the trusts is not important to the understanding of the case.

<p>1. Three per cent, commissions having been allowed by an auditor to an executor for selling real estate, and the Orphans’ Court having ratified it, the Supreme Court would not disturb the finding without affirmative evidence showing plain error.</p> <p>2. Under the Act of April 27th 1864, the costs in partition with a reasonable compensation to counsel are to be taxed by the court.</p> <p>3. In partition making seven allotments, six were accepted and one sold, the costs including attorney’s fee belonged to the whole partition and not to the lot sold only.</p> <p>4. The executor who made the sale had no right to pay attorney’s fees or other costs of the partition, except so far as the court might order them to be paid out of the proceeds of sale.</p> <p>5. The claim was against the parties in partition according to their several interests.</p> <p>6. The design of the act is that the costs of partition shall not be paid by the party alone who conducts the proceedings; but by all the parties, and it is not to pay fees for litigation.</p> <p>7. Fees to auditors remarked upon.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an amicable action of covenant, entered September 15th 1866, between The Rector, &c., of Christ Church, Philadelphia, for the use of Christ Church Hospital, plaintiff, and Frederick Fuechsel, defendant.</p> <p>By a case stated, filed in the action, it was agreed that the defendant was the owner of certain premises, subject to “ the yearly rent or sum of thirty-two Spanish milled silver dollars, each weighing seventeen pennyweights and, six grains at least, on the 1st day of May in each and every year thereafter for ever, free of any deduction for any taxes whatever,” and that'this ground-rent was owned by the plaintiff.</p> <p>It was further agreed that three years’ rent was due, and “ that if the court shall be of opinion that by the terms of the covenant above reserving rent, the said rent is to be paid in the specific article or foreign commodity known as Spanish milled silver dollars, each weighing seventeen pennyweights and six grains at least, or so much current money as will purchase the same, then judgment to be given for the plaintiff for” $150.87, with interest and costs, but if the court should be of a different opinion, judgment to be entered for the plaintiffs for $96 with interest — and costs for the defendant.</p> <p>The District Court, September 22d 1866, entered judgment for the plaintiffs for $104.01, with costs for defendant.</p> <p>The plaintiffs took a writ of error; and assigned for error, the entering of judgment for $104.01, and not entering judgment for $164.51.</p>

<p>1. A deed duly proved or acknowledged, is entitled to be received in evidence although never recorded.</p> <p>2. It is not necessary to prove the handwriting of the magistrate taking the acknowledgment. His certificate is primfi facie evidence of his authority and his signature.</p> <p>3. A conveyance was made by a stranger to a married woman, she conveyed to another person, who mortgaged the premises and they were sold under the mortgage. In a contest between the creditors of the husband and the purchaser, there was no presumption that the conveyance to the wife was for the husband’s use.</p> <p>4. In a contest between the creditors of the husband and the wife, she is held to strict proof of ownership; but with purchasers for a valuable consideration, a title appearing on the face of the deed is not to be disregarded without proof of circumstances to put the purchaser from the wife upon his guard against the husband’s creditors.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action on the case to December Term, 1862, by William H. Brown, against The Baltimore and Philadelphia Steamboat Gompany, to recover the value of a barrel of whiskey, delivered to the defendants to be carried to Portress Monroe.</p> <p>The defendants were a transportation company between Philadelphia and Baltimore. The Baltimore Steam Packet Company was a similar company, between Baltimore and Portress Monroe.</p> <p>On the 2d of April, the defendants’ agent received at their office in Philadelphia, from J. P. Tobias & Co., for the plaintiff, a barrel of whiskey, and afterwards on the same day sent to Tobias the following bill of lading:—</p> <p> </p> <p>The whiskey arrived at Baltimore and was delivered by the defendants on the 3d of April to the Baltimore Steam Packet Company, who gave the following receipt:—</p> <p>“ Baltimore, April 3d 1862.</p> <p>“ Received, under and subject to the special agreement hereinafter expressed, from Baltimore and Philadelphia Steamboat Company, one barrel liquor, to be forwarded to W. H. Brown, Portress Monroe, loss or damage as hereinafter expressed excepted, he or they paying freight for the same.</p> <p>M. N. Falls, Agent.”</p> <p>The connection between the two companies was a business connection only. When the defendants delivered goods to the packet company for transportation to Portress Monroe, they paid to the packet company their portion of the freight, no portion of it between Baltimore and Fortress Monroe going to the defendants. There was evidence that the whiskey was carried to Fortress Monroe, but it was never delivered to the plaintiff.</p> <p>Under objection and exception, a witness of plaintiff testified on the trial that in a conversation with Groves, the defendants’ agent in Philadelphia, “ I said, I have a barrel of whiskey for Fortress Monroe, but I have been told to send it by Adams’ Express. He observed, Why don’t you send it by our line ? It won’t go any quicker by Adams’ Express, and it will be much cheaper. He said Adams’ Express Company’s freight goes on the same boat that ours does, and will get there at the same time. I said, under those circumstances, I’ll send it by your line; and I sent it that day. Their goods went on the same boat from Baltimore to Fortress Monroe as Adams’ Express goods. That is what he said.”</p> <p>The defendants submitted the following points:—</p> <p>1. That the defendants, under their contract, did not undertake to deliver the barrel at Fortress Monroe, but only at Baltimore, and from there to forward to Fortress Monroe ; and that if they delivered the barrel of liquor to the Baltimore Steam Packet Company, to be carried to Fortress Monroe, they are discharged from all liability to the plaintiff.</p> <p>2. That if defendants received freight from the plaintiff for the whole carriage to Fortress Monroe, but accounted to the Baltimore Steam Packet Company for their portion of the freight from Baltimore to Fortress Monroe, their receipt of the whole freight did not make them responsible to deliver at Fortress Monroe.</p> <p>8. That there is no evidence in this case on which the plaintiff can recover.</p> <p>4. That there is no evidence to prove that Mr. Groves had any authority to agree to carry the barrel of liquor to Fortress Monroe.</p> <p>5. That the jury are not to consider the parol evidence given by the plaintiff of conversation with Mr. Groves, inasmuch as the written contract of the bill of lading is the only evidence of the contract of the parties.</p> <p>The court charged:—</p> <p>“ If you find from the evidence a special contract through a regularly accredited agent, to ship to Fortress Monroe; that freight to that place was asked and paid, and you find the barrel never arrived at Fortress Monroe, or never was delivered to the plaintiff, that will justify you in finding a verdict for the plaintiff; and the mere sending up of the bill of lading would not alter the aspect of the case. You must take the whole evidence together. I decline charging as I have been requested by the defendants’ counsel to instruct you.”</p> <p>There was a vercjict for the plaintiff for $134.85.</p> <p>The defendants took a writ of error, and assigned for error the admission of the evidence objected to, the refusal of the court to affirm their points, and the charge of the court.</p>

This was a scire facias in foreign attachment by John P. Baugh and others, trading as Baugh & Sons, against Charles W. Kirkpatrick and others, trading as D. Kirkpatrick & Sons, garnishees of Robei’t Erame. The writ issued October 9th 1865. The plaintiffs issued a foreign attachment against Erame, under which his goods, in the hands of the garnishees, were attached June 14th 1865, and they recovered judgment against the defendants for $1226.58.

<p>Error to the Court of Common Pleas of Philadelphia.</p> <p>This was a proceeding under the Act of December 4th 1863, commenced, June 7th 1866, by Sylvester Keyser against J. T. Rich, before William S. Toland, an alderman of Philadelphia, to recover possession of certain premises which had been leased by the plaintiff to the defendant. The alderman found, amongst other things, that the plaintiff, on the 6th of March 1865, leased the premises in question for the term of twelve months to the defendant, who entered into possession, and that the plaintiff, on the 8th of March 1866, gave him notice to remove from them and deliver possession in three months from the date of the notice ; that the defendant refused so to remove, &c. The aider-man thereupon gave judgment against the defendant that he forthwith give up possession, &c. The proceedings were removed to the Court of Common Pleas by certiorari, when the following-exception was taken to them:—</p> <p>“ The record shows that the proceedings had were under the Act of December 14th 1863, and that the only notice given' by complainant to defendant to quit was after the expiration of said term, said lease bearing date March 6th 1865.”</p> <p>The court (Ludlow and Pierce, JJ.) dismissed the exception, and confirmed the proceedings; which was assigned for error in the Supreme Court.</p>

<p>Error to the Court of Common Pleas of Philadelphia.</p> <p>This was a proceeding under the Act of December 14th 1863, commenced June 2d 1866, before John White, an alderman of Philadelphia, by John S. Snyder, trustee, against William R. Carfrey, to recover possession of premises leased by plaintiff to the defendant.</p> <p>The record of the alderman showed, that on the 8th day of June 1866, due proof was made before him that John S. Snyder, trustee, on the 15th day of May 1865, was quietly and peaceably possessed of a certain messuage, &c., and on the same day demised the said premises to William R. Carfrey, for the term of one year then next ensuing, and that the said William R. Carfrey entered into possession of the premises, held the same during said term of one year, and is’ still possessed of the same, and that the said term is fully ended ; that the said John S. Snyder, being desirous upon the termination of the said term to repossess the premises, did on the 10th day of January 1866, require the said William R. Carfrey, to remove from the same, and the said William R. Carfrey refused to comply with the said requisition, &c., whereupon John S. Snyder, trustee, on the 2d day of June 1866, prayed the said alderman that a due remedy in that behalf be provided for him, &c., upon which proof' and complaint Dennis Mead, constable, &e., was commanded to summon the said William</p> <p>R. Carfrey to be and appear before the said alderman, on the 8th day of June 1866, to show cause why restitution of the said possession of the said demised premises should not be forthwith made to the aforesaid John S. Snyder, and on the 8th day of June 1866, Dennis Mead, constable, &c., made return upon oath that he had served the said summons upon the said William R. Carfrey personally at his dwelling by leaving him a copy of the original, and making known the contents thereof, and complainant appears, defendant does not, and the plaintiff was permitted to produce his testimony, when due and legal proof by the examination of disinterested and competent witnesses as well as by written testimony was made before the said alderman, that the said John</p> <p>S. Snyder, trustee as aforesaid on the 15th day of May 1865, was quietly and peaceably possessed of a certain messuage, &c., being so possessed on the same day and year, did demise the said premises to the said William R. Carfrey for the term of one year then next ensuing. That the said William R. Carfrey by virtue of the said demise entered into possession of the said demised premises, and held the same during the said term of one year, and is still possessed of the same, and that the term for which the said premises were demised as aforesaid is fully ended, and that the said John S. Snyder, being desirous upon the termination of said demise and term, to have again and repossess himself of the said premises, for that purpose did on the 10th day of January 1866, require the saicl William R. Carfrey to remove and leave the same at the end of the said term of one year, and the. said William R. Carfrey hath hitherto refused and still doth refuse to comply with the requisition ; and now this 8th day of June 1866, after hearing the complainant, his proofs and allegations and due and legal proof of the facts before the said alderman, he finds that the said complaint and facts therein stated and proved are true, and hereby enters judgment against William R. Carfrey the said defendant, that he forthwith give up possession of the said premises above mentioned and described, to the said John S. Snyder, trustee as aforesaid, &c.</p> <p>The proceedings were removed by certiorari to the Court of Common Pleas, and the following amongst other exceptions were taken:—</p> <p>1. It is apparent from the record, that the party complainant is not competent to bring this action and to maintain these pror ceedings under, the Act of 1863.</p> <p>2. It does not appear from the record, that three-months’ notice was given prior to the expiration of the term, to surrender up the possession of the premises at the termination of the term.</p> <p>3. It does not appear from the record that the summons was served the number of days.before the return day thereof as required by law.</p> <p>4. The summons was not served according to law.</p> <p>The Court of Common Pleas reversed the proceedings. The plaintiff took a writ of error and assigned the reversal for error.</p>

This was an action, brought June 4th 1866, by Bushrod W. Adams against the North Pennsylvania Railroad Company, to recover the amount of 11 coupons of $30 each, payable respectively January 1st and July 1st 1861, and January 1st 1862. The coupons were of the following form: (30) Coupon No. 12. (30) NORTH PENNSYLVANIA RAILROAD COMPANY. Interest Warrant for Thirty Dollars, on Bond No. 165, payable at the office of the Company, at Philadelphia,, January 1st 1861.

The decedent died in 1812, leaving a will proved May 28th 1812. By his will after certain provisions for his wife and son, William Riehle, he devised as follows:— “ Item.

<p>1. The charter of the Philadelphia, Wilmington and Baltimore Railroad Company authorizes them, “ as soon as they conveniently can,” to construct a road with one or more tracks, and to make and erect “ such warehouses, &c., and all the works and appendages for the convenience of the said company for the use of said railroad.' This gives the right to construct sidings, turnouts, stations, engine-houses and all works and appendages usual in the convenient operation of a railroad.</p> <p>2. The expression “ as soon as they conveniently can locate and construct,” is not a limitation upon the power to compel the company to exercise its whole authority in the very beginning.</p> <p>3. It is not the special use made of the property taken which characterizes it, but its convenient necessity for public use.</p> <p>4. The charter giving power to take land, gives power to take a right of way over it, under the maxim, Omne majus continet in se minus.</p> <p>5. The charter of the company provides for compensation for taking the right of way, and its owner may have a view to assess the damages whenever his right is directly injured by entry upon the land.</p> <p>6. “ Owners of such required land” includes all owners of titles in or growing out of the land, whose rights are capable of actual privation by taking.</p> <p>7. The remedy for obstructing a right of way by a railroad track under this charter, is not by action denying the right of entry to take the land, but by application for the assessment of damages.</p>

<p>Appeal from the decree of the Orphans’ Court of Philadelphia, confirming the report of the auditor distributing the estate of Isaac Boyd, deceased. Isaac Boyd, the decedent, married Annie R. Murray in August 1858. In May 1859 Joseph P. P. Boyd, a son, was born. Mr. Boyd owned a large estate in Cuba, and spent much of his time there, both before and after his marriage.</p> <p>On the 7th of November 1860, an indenture “ between Isaac Boyd and Annie R. Boyd his wife, of the one part, Daniel R. Erdman * * of the second part, and the said Annie R. Boyd * * the third part,” was executed. The deed recited that irreconcilable differences have of late subsisted between the said Isaac Boyd and Annie R. Boyd his wife, insomuch that they have mutually agreed to live separate and apart from each otherand by it Boyd agreed that he “ will permit and suffer her, * * at all times hereafter during her natural life, to live separate and apart from him, and to reside and be in such place and places, and in such family and families, and with such relations, friends or other persons, and to follow and carry on such trade and business as she, * * at her will and pleasure may see proper.to do, notwithstanding her present coverture, and as if she were a feme sole and unmarried; and that the said Isaac Boyd shall not nor will, at any time or times hereafter, sue or prosecute her * * for living separate and apart from him, or compel her to cohabit with him; * * nor shall nor will, without the .consent of the said Annie R. Boyd, visit her or knowingly come to any house or place where she shall or may dwell, reside or be, nor send or cause to be sent any letter or message to her ; nor shall nor will at any time hereafter claim or demand any of the moneys, goods, lands, real estate, chattels or effects,” &c.</p> <p>Boyd also gaye to his wife by the deed, $1000, and conveyed to Erdman certain real estate in trust, to allow his wife to occupy it, or receive the rents and profits, or, with her consent, to sell it and pay her the proceeds absolutely if she desired; or to hold it subject to her direction and appointment, &c. Boyd visited his wife three or four times, and passed one night in her chamber, and wrote to her several times after their separation. He died August 14th 1863, having made a will making no provision in it for his wife, and leaving a legacy — the amount did not appear— to his son. The wife received the $1000, and the rents and profits of the real estate, which still remains unsold.</p> <p>On the 15th of November 1864, Mrs. Boyd executed to Daniel O. Hitner, the appellant, a deed with this recital:—</p> <p>“ Whereas, the said Annie R. Boyd is entitled to her dower oi thirds for life, or other rights and estate in and to the real estate, and to a share of the personal estate of which her said late husband, Isaac Boyd, died seised and possessed ; and she is desirous of conveying and assigning for the use and benefit of her son, Joseph P. P. Boyd (the child of her said late husband, Isaac Boyd, and of her, the said Annie R.), all her estate, right, title and interest in and to the real estate of her said late husband, in the state of Pennsylvania, but not elsewhere; and also all her estate, right, title and interest in and to that portion, and that portion only, of the personal estate of her said late husband, now lawfully in the possession, or under the control of the executors named in the writing, purporting to be the last will and testament of her said husband.” And in consideration of natural love and affection for her son, conveyed to Hitner the above recited estate in trust, to appropriate the income for the support and education of her son until he arrives at age, and then to convey the whole of said estate to him absolutely; if he should die in his minority, to convey it to his heirs and distributees under the intestate laws.</p> <p>The account of Samuel Welsh and George Junkin, Jr., executors, &c., of Isaac Boyd, was referred to James Lynd, Esq., to adjust, and report distribution of the balance.</p> <p>On the hearing before the auditor, Mrs. Boyd was offered by Hitner as witness to prove cohabitation between herself and husband after the deed of separation, and was rejected by the auditor.</p> <p>Hitner also asked that an issue should be awarded to determine the facts whether the deed of separation was carried out in good faith; whether it was not set aside by the mutual consent of the parties; whether the parties did not cohabit as man and wife after its delivery; and whether its covenants were kept by Isaac Boyd ?</p> <p>The auditor declined to recommend an issue.</p> <p>It was then contended, on behalf of Hitner, that the articles of separation were never carried into effect in good faith: that said articles, if so carried into effect, were subsequently disregarded and set aside by the mutual consent of the parties thereto ; and that under the deed of trust from Mrs. Boyd, he was entitled to all her interest under her husband’s estate, as if no deed of separation had been made. The auditor reported against his claims.</p> <p>On exceptions, the Orphans’ Court confirmed the report of the auditor. Hitner appealed and assigned the following errors:—</p> <p>1. Sustaining the decision of the auditor in rejecting the testimony of Annie R. Boyd, to prove reconciliation.</p> <p>2. Refusing to award an issue to determine whether or not the deed of separation was acted on and carried into effect in good faith; and the subsequent acts of the parties had not in effect revoked it.</p> <p>3. Deciding that the deed of separation was carried into effect in good faith ; and not set aside and revoked by the subsequent act of the parties.</p> <p>4. Deciding that friendly visits of the testator to his wife after the execution of the deed, and cohabitation with her, did not act as a revocation.</p>

<p>One sold all his stock of goods, the purchaser agreeing to pay a debt due by the vendor. Held, that this was not within the Act of April 26th 1855, and that the promise to pay need not be. in writing.</p>

<p>1. A married woman cannot encumber her separate estate for the debt of another.</p> <p>2. Judgments of courts having jurisdiction of the matter, cannot be inquired into in a collateral proceeding, except for fraud in obtaining the judgment.</p> <p>3. The Act of 1705 does not fix the effect of two nihils, but in practice they are considered equivalent to a garnishment or a return of “ scire feci.”</p> <p>4. A scire facias on a mortgage, under the Act of 1705, is no further a proceeding in personam than as it is directed against the mortgagor and others claiming under him, which entitles them to the notice prescribed by the act (which two nihils are); for the rest it is a proceeding in rem to foreclose the equity of redemption, and convert the pledge into money.</p> <p>5. The effect of the writ, when followed out to a sale, is to extinguish the equity of redemption, and transfer the estate to the purchaser as fully as it existed in the mortgagor before the mortgage.</p> <p>6. The transfer is made bv the judgment and sale thereon, and not by the mortgage.</p> <p>7. After a scire facias on a mortgage has ripened into a judgment, the mortgage is merged in it, and even if null and void, is no longer open to attack.</p> <p>8. A married woman executed a mortgage in her maiden name; scire faciasos on it were issued against her in that name, on which judgment was recovered after two nihils, and the land sold by the sheriff. Held, that the purchaser took a good title, and the validity of the mortgage could not be inquired into in an ejectment for the mortgaged promises.</p>

This was an action of replevin, issued to December Term 1865, by James Bain, Jr., against Joseph Doran, administrator, &c., of Agnes M. Williamson, deceased, for certain household goods. The decedent carried on business as a mantua-maker, under the name of Miss Agnes M. Williamson.

<p>Error to the District Court of Philadelphia,</p> <p>This was an action of debt, commenced May 29th 1866, by John G. Johnson against the Philadelphia and Baltimore Central Railroad Company. The cause of action was on six bonds of defendants, amounting together to $1400, dated February 15th 1859, to Ezra Bowen and George S. Fox, or bearer, payable at the office of the company in Philadelphia, January 1st 1879, and interest at the rate of 7 per cent, per annum, payable semi-annually on presentation of the proper coupon annexed to the bonds ; being part of a series of similar bonds, secured by a mortgage of same date to said Bowen and Fox: with an agreement that if the company should be in default in three successive semi-annual payments, the principal of the bonds should become due.</p> <p>■ Copies of the bonds and coupons from 1868 to 1879 were filed by the plaintiffs, together with the suggestion, that the defendants have been and are in default for three successive times in payment of interest on the bonds for which “ payment having been demanded according to the tenor thereof, the principal sums of the said several bonds on which this suit is brought are, therefore, now due and payable respectively; and the plaintiff’ claims to recover the said several principal sums of the said bonds so held by him, and the amount of all interest warrants or coupons now due and interest thereon. Plaintiff claims on no bonds or coupons other than those which he holds and of which he has filed copies, and limits his averment of default in the payment of the semi-annual interest to them.”</p> <p>The defendants made the following affidavit of defence :—</p> <p>“ The copies filed are of coupons attached to certain mortgage bonds issued by the defendants under a mortgage executed by them of date February 15th 1859, by which they mortgaged ‘ all the road, property, &c.’ * * By its terms a.remedy is provided for collection of the coupons which is exclusive of the right of the bond-holders to sue at law, said remedy being given in these words:—</p> <p>“ In trust that the said parties of the second part or their successors, at the written request of the holder or holders of not less than $100,000 in amount of any of said bonds due and unpaid, whether the same shall have become due by lapse of time, and the expiration of their term of credit, or by three successive defaults in the payment of the semi-annual interest, as therein mentioned, shall cause all the mortgaged premises and appertenances to be sold at auction in the city of Philadelphia.”</p> <p>And defendants are advised that the plaintiff, being the holder of the bonds under said mortgage, is bound to resort to that remedy for payment of his coupons, and deponent further saith, that the coupons held by plaintiff were never delivered to defendants as required by the terms of said bonds, and that payment thereof was in no case demanded upon the day of the maturity of said coupons or any of them. * * * * *</p> <p>That the copies filed do not entitle the plaintiff to judgment, that the same contain no promise or engagement to pay to plaintiff any sum of money.”</p> <p>Judgment was entered against the defendants for want of a sufficient affidavit of defence, and the damages assessed at $1530.29.</p> <p>So entering judgment was assigned for error.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of assumpsit, commenced March 3d 1866, by James M. Smith and others, executors, &c., of George W. Edwards, deceased, against The American Academy of Music. The declaration was on the common counts for $55.12, paid by the plaintiffs to the sheriff of Philadelphia, and $759.09 paid to Catharine C. Keppele for the defendants.</p> <p>Mrs. Keppele, by deed of April 13th 1853, granted to George W. Edwards, the decedent, three lots on Broad street, Philadelphia, subject to certain ground-rents, payable half-yearly, on the 1st of April and 1st of October. On the 8th of October 1853, G. W. Edwards granted these lots with others to the defendants, “ under and subject to the payment of the several yearly ground-rents” mentioned in the deed, and including those on the above •three lots.</p> <p>On the 19th of March 1861, the defendants conveyed these lots to John Neff, “ under and subject to the payment of the several yearly ground-rents, reserved out of them respectively,” &c. Neff failed to pay the ground-rents, which fell due on the 1st of April 1861, amounting to $715. Mrs. Keppele brought suit against Edwards on his covenants in the groun'd-rent deeds, and recovered $720.53. Edwards having afterwards died, his executors, April 16th 1862, paid the debt thus recovered and costs, amounting to the sums for which this suit was brought.</p> <p>On the trial it appeared by the testimony of a witness of the defendants that “ the object of endeavoring to part with the ground at all was, that it was not available for any purpose of the Academy, and it was useless to carry a vacant lot and pay ground-rent upon it.</p> <p>“ After trying for some two years to sell it, and paying the ground-rent during that time, without finding a customer, we took the first opportunity we had of getting rid of it by giving it away, without regard to when the ground-rent foil due.</p> <p>“ The conveyance was made for the purpose of avoiding the payment of ground-rent; not particularly of that which fell due on the 1st of April 1861, but of that as well as subsequent payments, to get rid of the ground-rent for ever.”</p> <p>The court below (Stroud, A. J.), charged, amongst other things: —“ Without entering into this effort to get rid of the responsibility by conveying it to Mr. Neff, without saying anything about that at all, I say to you this as a matter of law, that according to the construction of the language of that covenant they” (the plaintiffs in error) “ have bound themselves to pay this ground-rent. If you find they have not done so, and he has been obliged to pay it, then he is entitled to recover from them.”</p> <p>The jury found for the plaintiffs $1012.53.</p> <p>So charging was assigned for error.</p>

This was an action of ejectment, by William C. Hannis a'gainst Robert M. Hazlett and Mary A. Hazlett his wife, for a farm in Delaware county, the title to which was in the name of Mrs. Hazlett.

<p>Error to the Court of Common Pleas of Montgomery county.</p> <p>This was an action by the county of Montgomery, against William Mintzer, to recover $47.55, the amount of state tax assessed on 817 shares of stock in the Pottstown National Bank, owned by him.</p> <p>The facts of Mintzer’s ownership of the stock, the regular assessment of the tax at three mills per dollar and the amount of the assessment, were agreed upon in a case stated ; and it was submitted for the opinion of the court below, whether Mintzer was liable for the payment of the tax.</p> <p>The court entered judgment for the county for $47.55, the amount of the tax.</p> <p>Mintzer took a writ of error, and assigned the entering of this judgment for error.</p>

<p>1. A tenant of a farm, under a lease from year to year for agricultural purposes, is entitled to the waygoing crop, and such letting must be presumed to have been made if nothing to the contrary be said.</p> <p>2. This implication cannot be rebutted by proof of bad husbandry, and a trespass by the landlord in destroying the tenants' crop after the expiration of the lease, cannot be justified by an alleged breach of contract.</p> <p>3. If there be bad husbandry, the remedy is by suit and not by confiscation of the tenants' rights.</p> <p>4 There being a crop in the ground, whether good or bad, the tenants had a right to it, and to take it away when it ripened.</p>

<p>1. A landowner said to the president of a railroad company when endeavoring to settle for .damages, that if they would run the road “further over” from his house and spring he would give the land occupied for nothing, and the president said he would “ try to accommodate.” Reid, that this was too slight to prove the grant of a right of way or release of damages, for there was no designation of the land released.</p> <p>2. The promise to try to accommodate was not an acceptance of the offer.</p> <p>3. The right of passage which a railroad corporation acquires across land is an interest in the land, and must come by private purchase or under the eminent domain which the state has vested in them.</p> <p>4. If the company had the right to deposit stone and earth on land outside the sixty feet appropriated to the road, it was in some sense taking the land and was a proper subject for compensation.</p>

<p>Error to the Court of Common Pleas of Chester county.</p> <p>This was an action of assumpsit, brought November 29th 1864, by Albert Matlack against Edwin Roberts, executor, &c., of John Roberts, deceased.</p> <p>The circumstances on which this suit was founded are the following :—</p> <p>William Roberts, by his will, proved May 4th 1841, devised his land to his two sons, Joseph and John, charged with legacies to his daughters, and added this clause: — “ And in case of the death of either of my children unmarried or without issue, then I do order that the share of said child or children so dying, may be divided equally among my surviving daughters or their heirs.”</p> <p>William Roberts left two sons, the above devisees, and four daughters, Martha Matlack, the mother of the plaintiff, being one.</p> <p>In August 1863 the real estate of the testator was sold by the sheriff, on a judgment for a debt due by him in his lifetime. The proceeds of sale were brought into court and distributed by auditors, first to pay the debts of the testator, then the legacies charged on the land by the will; the balance of Joseph’s share was absorbed by his debts, and the balance of John’s share, amounting to $>5885.25, the auditors reported was “ due and payable to the said John Roberts as devisee under the will of William Roberts, deceased.” The report was confirmed February 9th 1844, and this sum was received by John in about four months afterwards.</p> <p>Martha Matlack subsequently died, leaving seven children, of whom the. plaintiff is one.</p> <p>John Roberts has died unmarried and without issue, having by his will given all his estate to Edwin Roberts, his nephew, and made him executor of his will.</p> <p>In a special count of his declaration the plaintiff averred that the devise was to John Roberts in fee tail with remainder to the daughters of the testator, and that he received the balance of the proceeds after the sheriff’s sale, “ as devisee of the land aforesaid, to have the same estate and interest therein as he had in the land, and for the use and benefit of those in remainder, whereby, by reason of the premises the daughters of the said William Roberts and their heirs, upon the death of the said John Roberts, became entitled to have and receive the said sum of $5883,” and that the plaintiff was entitled to a portion of his mother’s share. Under the charge of the court the jury found for the plaintiff for $241.97, reserving the defendant’s point that “ under the law and the evidence the verdict must be for the defendant.”</p> <p>The court (Butler, P. J.) entered judgment for the defendant -on the reserved point, notwithstanding the verdict.</p> <p>This was assigned for error.</p>

<p>1. In order to take a case out of the Statute of Limitations, the acknowledgment must be clear and unequivocal.</p> <p>2. At the foot of an account, the party against whom the balance appeared signed the following: “Having received an order for a deed to me from Martin Weaver, I hereby agree to settle with him for the above balance, and any other just claim between us, March 13th 1849.” Held, not sufficient to take the case out of the statute.</p>

<p>Error to the Court of Common Pleas of Schuylkill county.</p> <p>This was an amicable action of assumpsit to June Term 1857, between Charles Miller and Joseph Patterson, trading as Charles Miller & Co., plaintiffs, and Thomas M. Bussell and others, executors, &c., of Andrew Bussell, deceased, defendants.</p> <p>The suit was upon two notes from Bussell to Miller & Co.; one ■ dated March 1st 1852, at four months, for $3000 ; the other dated March 25th 1852, at four months, for $1673.07. The pleas were non assumpsit, and payment with leave, &c., and set-off.</p> <p>On the 1st of January 1846, the assignees of the Bank of United States and E. H. Kimball leased to Thomas C. Williams a tract of coal-land in Schuylkill county, known as the Mount Laffee tract, for ten years, for a rent of 31 cents per ton of the coal mined at the end of every month. On the 31st of August, in the same year, Williams assigned this lease to Andrew Bussell, as collateral security for a bond of $6250, payable to Bussell on the 1st of July 1847, and for any other money Bussell should lend to him, or become liable to pay for him. Williams, on the 24th of December 1847, acknowledged in writing that'his liabilities to Bussell, for which the lease was security, amounted to $53,150.</p> <p>On the 27th of the same month Bussell assigned the lease to the plaintiffs as “ collateral security for the payment of certain notes of different dates, amounting to the sum of $23,150, and for and as a collateral security for any other sum of money that the said Charles Miller & Co. may lend to the said Andrew Bussell, or any other liabilities they may incur for him, and the payment thereof, and for all renewals of the same with interest thereon, until the whole be fully paid by the said Andrew Bussell.” Bussell, at the same time, assigned to Miller & Co. certain bonds amounting to $25,000, and a mortgage accompanying them, as additional security for the same liabilities, Miller & Co. agreeing that, upon the payment by Bussell of $9000, they would reassign the lease, and on the payment of $14,150, and any other liabilities incurred by them, they would reassign the bonds and mortgage. Bussell, at the same date, receipted to Miller & Co. for their acceptances of his drafts for $13,000, to be negotiated to reimburse money advanced to him, it being understood that these acceptances were “ not additional to the $23,500.” Williams endorsed on the receipt, December 28th: “ As the within arrangement was made by A. Russell for my accommodation and benefit, I hereby agree to pay him whatever amount he has to pay C. Miller & Co. for negotiating said paper.”</p> <p>On the 3d of March 1848, Miller & Oo. and Williams, with the assent of Russell, agreed that Williams should consign to Miller & Co. all his coal, except from one slope, Miller & Co. to retain 50 cents per ton toward Williams’s liabilities to them; the bonds, mortgage and lease assigned to them by Russell to be retained by them until all their liabilities for Williams and Russell should be paid in full; Miller & Co. to advance to Williams and Russell their paper to an amount not exceeding $23,500, to be renewed from time to time by Williams and Russell, they to pay all interest, expenses, &c., of the renewals, and Miller & Oo. to receive 30 cents per ton for selling the coal.</p> <p>On the 15th of June 1848, Miller & Co. lent Williams $3500, and on the same day he assigned to them all his interest in the lease, together with fixtures, tools, &c., until the $3500, and all other indebtedness of Williams to them, and also the indebtedness of Russell, mentioned in his assignment, should be discharged; “ the object of this agreement being to secure to the said Joseph Patterson and Charles Miller, as perfectly as can be done, the payment of all money due, or that may hereafter become due to them, from the said Thomas Williams.”</p> <p>By a statement of Russell to Miller & Co., under date of December 30th 1847, showing what made up Williams’s indebtedness of $53,150, it appeared that there were included in it two notes to Safford & Co.; one for $2000, and the other for $1500, for both of which Russell was liable.</p> <p>On the 1st of November 1848, possession of the Mount Laffee tract was surrendered by Williams to Miller & Co., and the personal property taken by them at $6146.05, at. which sum it had been appraised.</p> <p>Safford recovered judgment on the $1500 note against Russell, November 23d 1848, for $1546.66 ; and Thomas Earp, endorsee of Safford & Co., recovered judgment on the $2000 note, January 23d 1849, for $2023.05, both judgments being in Philadelphia. Miller became "bail for stay of execution on them. Thomas M. Mitchell, endorsee of Safford & Co., obtained judgment in Schuylkill county against Russell, December 21st 1848, for $1009.37, on a note of $1000, which does not appear to be included in the $53,150. On this judgment Russell claimed a stay as a freeholder.</p> <p>In December 1848, the lessors of Williams distrained for rent, and the property distrained was bought by Miller & Co.</p> <p>Under a judgment, Tyler & Co. against Williams, all his in fcerest in the lease &c., was sold by the sheriff, May 28th 1849, t Miller & Co., for $100. This sale appears to have been made at the suggestion, and with the assent, of both Miller and Russell.</p> <p>On the 23d of October 1849, Russell wrote to Miller that there were coming due, before the following January 19th, debts amounting to $11,000, including the Safford and Earp judgments, for which Miller was bail, stated at $3500, and the Mitchell judgment at $1000 principal; and saying further: “ The judgments in favor of Mitchell, Tyler and Earp are the first liens on my property, and when paid they can be assigned to you and remain as liens, and I will give you any further security I have. If you can get a loan for me for the whole amount of $11,000, for two or three years, so that I could meet it without much trouble, I will give you $500; but if the $11,000 cannot be had, I must have $7500, cost what it will, as it will not do to let the sheriff sell me out now, after weathering the storm so long.”</p> <p>Miller & Co. wrote to Russell in reply, October 26th 1849:— “ In regard to the principal topic presented in your letter, we' would say that it will always afford us the greatest pleasure to accede to your wishes when we can do so, but the condition of the business this and last year and our present liabilities, admonish us of the necessity of avoiding increased debt. The amount of our investment in Mount Laffee is large and is so much active capital withdrawn from our business ; whilst the additional business of selling and shipping the products of that colliei'y requires increased capital; for, with thirty days’ drafts for wages and cash weekly for tolls and long credit on sales, it absorbs all the money we can raise without depreciating our credit, which it is important should he maintained high in so large a business. * * * It would have been a much more pleasant duty to us to have assented promptly to your proposal, and it is only from a conviction of the necessity of the case that we decline. - If we could meet your views, we would not accept any compensation for doing so, hut would furnish you the means at what they cost us.</p> <p>“ The first judgment maturing we believe is on the 5th of November ; for this we will issue our paper to you, or arrange in some way in which it will be satisfied. The others come due after that, we suppose, and this will give you some time.”.</p> <p>On the 2d of November, Miller & Co. wrote again to Russell, that the Safford claim “ must be paid on Monday, and we intended to propose issuing our acceptance to you for the amount, for you to raise the money.</p> <p>“ If you should not be here on Monday next, we will pay the amount of the claims and arrange with you for it when you see us, or perhaps you had better send us by return mail your draft on us endorsed by you at four months for an amount that will cover Salford’s claim with charges and interest, and we will endeavor to negotiate it.”</p> <p>To this Russell replied, November 3d 1849 : — “ I herewith send you my draft on you at four months for $1673the amount of principal, interest and costs of Salford’s judgment, and please accept my thanks for your kindness in the matter — and I beg leave to say, there is as much in the manner in which a favor is done as in the favor itself. Your kindness, I hope, I shall never forget.”</p> <p>Miller & Co., November 6th, acknowledged the receipt of the draft and informed Russell that they had paid Salford & Co.’s judgment, and charged his account with its amount.</p> <p>On the 10th of December Russell wrote to Miller & Co. that Mr. Hughes, who had charge of some of the judgments, had “ agreed to take your acceptance at six months for the two judgments, and I have drawn them as he directed,- one, favor of E. Salford & Co., for $1000, and the other favor of Thomas Earp for $2000, which please accept and return me, being for my use and accommodation.”</p> <p>Miller & Co. replied, December 14th: “ As requested, we return to you herein your draft, favor E. Salford & Co. six months from December 13th 1849, for $1000, and yours, same date, favor Thomas Earp for $2000 — both accepted by us for your use and accommodation, and which you will please provide funds for at maturity. You will please have the judgments in favor of these parties assigned to us or marked for use, or applied in some way as security for these advances by us.”</p> <p>Russell replied on the same day: “ Your favor of the 14th, with the two acceptances of $2000 and $1000 for my use and accommodation were duly received, for which I feel much obliged. I have passed them to Mr. Hughes in payment of the judgments, but he will not transfer the judgments to you until the drafts are paid. In this I suppose he is right, as it is the usual course to hold on to all security ; at the same time it does not lessen your security, the judgments being a lien for the same debt.”</p> <p>The acceptances of Miller & Co. for $1673.07 and $3000, for the use of Russell, were renewed from time to time till they ended in the notes on which this suit was brought. There was a very voluminous correspondence between Miller & Co. and Russell.</p> <p>In 1851 the correspondence exhibits some misunderstanding between them, with reference to Russell’s indebtedness and the character of their respective interests in the Mount Laffee colliery ; Russell alleging that his indebtedness to Miller & Co. had been extinguished by Miller & Co.’s receipt of the proceeds of the mines, and claiming the ownership of the lease; Miller & Co. alleging the contrary.</p> <p>The last letter from Miller & Co. is dated July 17th 1852; they say</p> <p>“ Your favor of 13th inst. is received, in which you say that your note for $3000, protested may lie until our other matters are settled, and requesting us to withdraw the other note due 28th inst for $1673t-o-u, and hold it likewise.</p> <p>“ These two notes, amounting together to $4673-¡~¡j-(j, constitute a claim on you, originating in the acceptance by us (at your urgent request) of your drafts for that amount, exclusively for your use and benefit; and to relieve you from the effects of suits pending, or about being instituted against you; and have no connection with our advances on account of Mount Laffee colliery, but were in the first instance, and have been continued by renewal at your request, as friendly accommodations to you, and to be paid by you.</p> <p>“We will, as you request, allow the note past due to lie until we meet, and will also withdraw that due on the 28th inst., before maturity, and will take pleasure in conferring with you in regard to their payment when we see you.</p> <p>“ Not admitting any obligation on our part to furnish you with the accounts of the working of Mount Laffee colliery, we would nevertheless, now, as we have done heretofore, take pleasure ,in exhibiting them, and will be happy to do so, whenever you may favor us with a call, at our office, and have no objection whatever to do so when we may have the pleasure of meeting you in Potts-ville.”</p> <p>The defendants under the pleadings and notice of special matter, alleged that the proceeds of the colliery received by the plaintiffs, had extinguished all the indebtedness of Williams and Russell to them, including the notes in suit, and that the plaintiffs were largely indebted to Russell. The rulings of the court on questions of evidence were the subject of exception by the defendants.</p> <p>Both parties submitted a number of points.</p> <p>The plaintiffs’ points were :—</p> <p>1. That the notes were for a loan for Russell’s special accommodation, and were not connected with any coal transactions. * * *</p> <p>2. That the accountability was originally and exclusively to Williams: and that there was none to Russell, especially since the sheriff’s sale. * * *</p> <p>The defendants’ points were:—</p> <p>1. That Russell was entitled to the possession of the premises after the debt and advances of the plaintiffs for which they held the lease as security, and the costs and charges of mining and a reasonable compensation for their services had been paid, and that the defendants can claim the profits accruing from the premises over and above such debt, &c., to an amount not exceeding the claim for which Russell held the assignment of the lease as security.</p> <p>2. If the mines produced a profit to the plaintiffs after paying the debt, advances, &c., then such profit should have been applied to the payment of the notes in suit, and if such profit was equal to the notes in suit, the plaintiffs cannot recover.</p> <p>3. If the mines produced a profit to the plaintiffs over and above all debts, claims (including the notes in suit), &c., the jury may find in favor of the defendants for the amount of the excess of such profit not exceeding, the amount of the claim of Russell against Williams.</p> <p>* -*• *****-&#*</p> <p>5. The sheriff’s sale of the interest of Williams in the lease and fixtures could only affect that interest and not the interest of Russell, of which the plaintiffs had full notice before the time of the purchase.</p> <p>6. The sheriff’s sale of the interest of Williams and the purchase by the plaintiffs of that interest was subject to the liens in the hands of the plaintiffs, and held by the plaintiffs against it at that time ; and said sale discharged that lien and the claims for which they held the leases and fixtures as security, and they cannot now claim the amount of any such notes, drafts or evidence of indebtedness against Andrew Russell in this suit.</p> <p>* * * -x- **-»•* *</p> <p>8. If the parties, Miller & Co., and Russell only arranged to have the resulting interest of Williams sold by the sheriff, and purchased by the plaintiffs, and treated the interest of Russell as subsisting after the sheriff’s sale, — then his interest did subsist without regard to any legal'effect of the sheriff’s sale, and whether they did so treat it as subsisting after the sheriff’s sale is a question of fact for the jury.</p> <p>The court (Ryon, P. J.) charged :—</p> <p>“ We will answer the defendants’ 5th and 6th points as the questions involved on these points must determine this case.”</p> <p>After stating the transactions of the parties before the sheriff’s sale, the court said:—</p> <p>“ The property^was levied on by the sheriff, and sold, and bid in by the plaintiffs, 28th of May 1849] also landlords sold the personal loose property which was also bid in by the plaintiffs. The notes in evidence and the prior ones, of which these in evidence are renewals, were not in existence until after the sheriff’s sale some time, and did not arise out of any claim, or liability of Williams or Russell to Miller & Co., at or prior to'the sheriff’s sale. The effect of the sheriff’s sale was to sell the property subject to the debts of Williams to Miller & Co., then existing, and to discharge the property from the agreements which provided for future advances, so far as regards advances to be made after the sheriff’s sale. The notes in evidence are not therefore under the terms of the pledge, and cannot call upon Miller & Co. to account further than so far as will satisfy the indebtedness of Williams and Russell or either of them, prior and at the time of the sheriff’s sale.</p> <p>“We therefore instruct the jury that the plaintiffs on the whole evidence are entitled to receive the principal and interest of the notes for which the suit was brought.”</p> <p>There was a verdict for the plaintiff for $8516.93.</p> <p>The defendants removed the case to the Supreme Court, and, besides the rulings of the court on the evidence, assigned for error the refusal of the court to answer their points in the affirmative, and that the court charged “ That the effect of the sheriff’s sale was to sell the property subject to the debts of Williams to Miller & Co., then existing, and to discharge the property from the agreements which provided for future advances, so far as regards advances to be made after the sheriff’s sale. The notes in evidence are not therefore under the terms of the pledge, and Russell cannot call upon Miller & Co. to account further than so far as will satisfy the indebtedness of Williams and Russell, or either of them, prior and at the time of the sheriff’s saleand that the plaintiffs were entitled to recover.</p>

<p>1. Preliminary injunction for nuisance in fouling water, must stand or fall on the merits it possessed at the granting of the injunction.</p> <p>2. An injunction is always a high exercise of power to be very cautiously exerted, but where large and expensive works are sought to be stopped for something incident to a lawful employment and not on account of direct or wilful encroachment, it should clearly appear that it is a ease for equitable intervention; that there is no adequate remedy at law and that irreparable injury will ensue.</p> <p>3. There must be a clear necessity for the intervention in the light of inability to be compensated for the wrong.</p> <p>4. A water company filed a bill for injunction against a mining company who had erected works at great expense, to restrain them from polluting the water by drainage from their mines. The evidence not being clear that any pollution had actually occurred to the water when it was used, the injunction was refused.</p>

On the 28th of March 1854, U. Y. Pennypacker sold a house and lot in West Chester to Clinton Frame for $2200, and took a bond with warrant of attorney for $1700, upon which judgment was entered March 30th 1854, as part of the purchase-money, as appeared by the record of the judgment. This judgment was marked to the use of Isaac Ruth, April 2d 1855, and revived March 25th 1859.

<p>Appeal from the decree of the Register’s Court of (Theater county, confirming the decree of the register in the grant of administration on the estate of John W. Odiorne, deceased.</p> <p>The register granted administration on the 30th of October 1866, to David W. Odiorne, a brother of the decedent and resident of New York, against the consent of Annie I. Odiorne, his widow, and she appealed to the Register’s Court. Administration was granted to her in Philadelphia on the 31st of October.</p> <p>The decedent and Annie Isadore Robbins, both residing in Philadelphia, were married there on the 17th of August 1861.</p> <p>After the marriage he followed his business of photographer in that city. His business being dull, he moved to West Chester, Chester county, in July 1865. There was some evidence of his intention to return to Philadelphia. He was not successful in West Chester, and his means became greatly straitened. Their life together did not appear to be very happy ; they had quarrels, and she finally (about July 1866) left home and went to Detroit, to follow the occupation of an actress.</p> <p>On the 17th of July 1866, the decedent wrote to his wife acknowledging the receipt of a letter from her of the 14th, expressing much interest in her, and wishes for her success and advising her as to her deportment; he concludes : “ I hope when this reaches you that you will be permanently settled, that is as long as you stay in Detroit; then I can write often, and not wait always for an answer. Grod bless you, darling.”</p> <p>On August 8th he wrote again: “Always remember health first, without which you can do nothing ; and remember you are not strong by any means. — So be careful of yourself, darling, for my sake, for should anything happen you I never would forgive myself for consenting to your going on the stage.”. Signing, “ Affectionately ever your own husband.”</p> <p>On the 20th of August she wrote : — “ John: I arrived here this morning very fatigued. I did not telegraph because I determined before I started not to go either to you or West Chester.</p> <p>“ I am tired of acting in this farce, and deceit is not my role. Wlien I went to Detroit the only thing I prayed for was that ' I might never see your face again, but your own actions obliged me to be deceitful. I had no alternative but that, or experience trouble in getting off. My being away from you has fully convinced me (although I knew it before) that I could never again endure the thought of living with you — no matter in what relation. I would sooner die than be forced to do so, and I know the law cannot force me to. * * *</p> <p>“lam able and willing to take care of myself, and ask no bones off of any one.</p> <p>“ I would rather a great deal not see you as I know you would be unpleasant. If you consult my inclinations, or have any regard for my desires, you will not try to. I feel that I never want to see you again and I might as well say so.”</p> <p>He replied:—</p> <p>“ West Chester, August 22d 1866.</p> <p>“ My own darling:</p> <p>“ For as such I now probably address you for the last time — it is with a crushed and broken heart that I now try to pen this my last letter to you. When I look back and review the past five years of our married life, and then think that in one brief day that happiness, those hopes and aspirations, have all vanished away. Is it so, or is it a dream? Would to Grod it were! As it is I cannot realize it. I am exerting myself now to do -what I feel I cannot perform, that of obeying your wishes and bidding you farewell, never to live and love each other as we once did; never to meet or anxiously expect the arrival of each other; never to call each other by those endearing names we loved to. All, all is past, and no comfort comes to heal the broken heart.</p> <p>ür % *</p> <p>To say I l'oved you would be only partly true — to say I idolized you is true. Darling, is there no hope ? Can you look on and see me wasting away and not stretch forth one hand to save ? Am I to be for ever cast forth from your heart and thoughts ? Oh, no ! it is impossible, it cannot be, that you who have been my wife for years, bone of bone and flesh of my flesh, can so easily renounce one whom she vowed to love and honor.”</p> <p>******* ***</p> <p>She replied« August 24th 1866.</p> <p>“ John:</p> <p>“ I have -just received your mad letter.” * * “ My decision is the result of calm, deliberate and decided reflection. I feel that by doing what you wish, I would be committing a crime against my own nature. I tell you that every feeling in my nature rises in the most terrible revolt and repugnance at the simple idea of ever being anything to you — it is disgusting to me. I swear it by ail that is holy, and yet you are so selfish as to seek by your sorrow to influence my inclinations. But I repeat, you can never do it. I shall never under heaven be yours again, and you might as well, first as last, view it in a just and practical light.” * * “ I never want to look upon your face again, so help me God.”</p> <p>He replied, August 26th 1866, in a long affectionate letter, saying he would not again molest her, and referring to her having told him that she was attached to another, he wrote:—</p> <p>“ You say that what you told me was but too true. Annie, as you value your peace hereafter, study him well, try him, above all deceive him not. Confess everything. Marry not till you are entirely free from me. Let him know you are married. Gain your divorce — I shall not stop it, but marry not till then, for he will be sure to find it out, then you would suffer.”</p> <p>On the 27th of August she wrote to him her last letter, in which she says:—</p> <p>“ It was an ill assorted match in the- beginning. There was never, even from the first, any congeniality between us. We never understood each other, and I have ceased entirely to love you. But the remembrance of your last letter will always make me think kindly of you, and I give you my solemn promise that should I ever wish assistance from you I will never hesitate to ask it, or advice either.</p> <p>“ But let all this communication cease between us. Should I need you, I can easily make inquiries, and find you; mind, I never expect to do so : I am merely supposing a case.”</p> <p>On the hearing before the Register’s Court the appellant claimed the right to administer as widow; that the decedent’s residence had.been in Philadelphia, and administration had been granted to her there, and that the grant to David W. Odiorne was in other respects contrary to law.</p> <p>The Register’s Court (Butler, President of the Common Pleas, delivering the opinion) dismissed the appeal: the widow appealed to the Supreme Court and there assigned for error:—</p> <p>1. The Register’s Court below should have annulled the letters of administration granted David W. Odiorne.</p> <p>2. The widow, Annie I. Odiorne, was entitled to letters of administration.</p>

<p>1. When the words of a statute are plainly expressive of an intent, the interpretation must be in accordance therewith.</p> <p>2. An act provided that “in actions of scire facias on mortgages, judgments, and on liens of mechanics,” &c., the plaintiff may take judgment by default, unless there be an affidavit of defence, but not “ unless the said plaintiff shall, within two weeks after the returning of the original process, file in the office of the prothonotary of the courts aforesaid, a copy of the instrument of writing, book-entries, record, or claim, except mortgages, on which action has been brought.” Held, that judgment for want of an affidavit of defence could not be taken in scire facias on a mechanic’s lien, unless a copy of the claim had been filed in the suit.</p>

<p>1. In a dispute as to their rights between parties claiming under different leases of the same eoal-veins, no injunction can be granted until the questions of their rights are settled.</p> <p>2. A preliminary injunction is a restrictive or prohibitory process to compel the party to maintain his status merely until the matters in dispute shall be determined; the foundation being to prevent irreparable injury.</p> <p>3. A preliminary injunction is to be resorted to only from a pressing necessity to avoid consequences which cannot be repaired under any standard of compensation, and is a preventive remedy only.</p>

Appeal of Martin Foley and Michael Kelly from the decree of the Court of Common Pleas of Schuylkill county. In Equity. Thomas Tovey filed a bill in equity to June Term 1865, against Foley and Kelly, the defendants, asking that they should be decreed to pay him the sum of $300 out of a fund which had been put into their hands as a committee of the citizens of Cass township, for the purpose of relieving the township of the draft.

<p>1. The Act of February 17th 1858, giving mechanics’ liens upon improvements, &c., about mines, &e., in Luzerne and Schuylkill counties, excludes the idea of extension to the real estate, and extends the lien “only to the improvements, &c., erected,” &c., and to the interests of the tenant in the freehold.</p> <p>2. The Act of 1858 is a departure from the principle of the original act, as it makes that a lien upon chattel interests, which before was a lien only on realty.</p> <p>3. As a result from this departure from the principle of the Lien Law, the Act of 1858 should receive a strict construction and not be carried a step beyond its very words.</p> <p>4. Statutes in derogation of the common law, and contrary to the general policy of the public, are to be strictly construed.</p> <p>5. A railroad constructed by a lessee for mining coal in the slope of a mine, is not an improvement or fixture to which a mechanic’s lien will attach under the Act of 1858.</p>

<p>1. The precise position that surveys were intended to occupy on the ground is generally a question of fact for the jury, but where the evidence is all one way, and so satisfactory that the court would not sustain a verdict against it, the judgment will not be reversed because the judge declared the true effect of the evidence instead of submitting it to the jury.</p> <p>2. A well-located older warrant is a sure means of locating a younger which calls for the older.</p> <p>3. If lines are upon any part of a block of surveys to which a disputed tract belongs, the disputed tract, from the time of its return, was an actual appropriation of the ground.</p> <p>i. Marks upon any part of a block belong to each tract of the block.</p> <p>5. Waters incorrectly laid down where the exterior lines cross them, would aid the presumption that the surveyor was not on the ground, but would not be conclusive; but error in marking interior streams is decisive of nothing.</p> <p>6. If the defendant gained possession by attorning to the plaintiff’s title, it was not in his power to destroy his landlord’s right by secretly attempting to get another.</p>

Appeal by Decatur E. Nice and William Donaldson, from the decree of the Orphans’ Court of Sclmylleill county, distributing the estate of Charles W. Hegins, deceased. On the 30th of December 1857, Judge Iiegins executed a mortgage to George H. Olay in the sum of $4000, in trust, to secure the appellants and other creditors of the judge.

<p>1. In a question of partnership the declarations of one of the alleged partners are admissible as evidence against himself.</p> <p>2. That a deposition is not in the handwriting of the magistrate is not a valid objection, unless it appears to have been written by the party, his agent or attorney.</p> <p>3. A witness taking his deposition, refused, on cross-examination, to answer a question having no bearing on the issue. Held, not to be ground for excluding the deposition.</p> <p>4. A party having received money on account of a contract which he after-wards refused to fulfil, the other party gave him written notice that he rescinded the contract, and stated in the notice facts as to the contract, payment and breach. Held, that the notice was proper evidence for the plaintiff, notwithstanding the facts stated in it.</p> <p>5. When a plaintiff is in a condition to rescind a contract he may recover back in assumpsit the money paid on it.</p> <p>6. Where an action is in disaffirmance of a contract to recover back the price paid, and it appears that the plaintiff has complied up to the time of electing to rescind, tender or offer of the money which would have been due on completion is not essential.</p> <p>7. Where an action is in affirmance of a contract, an offer of readiness to pay is material.</p>

<p>1. An attempt to commit a misdemeanor is a misdemeanor.</p> <p>2. Where an act is done which unequivocally leads to crime, it can be punished, either as a consummate crime or as an attempt at crime; but until an overt act is committed, the law will not detect and punish the criminal intent.</p> <p>3. It is not indictable “to solicit, incite and endeavor to persuade” a married woman to commit fornication or adultery.</p> <p>4. Precedents are evidence of the law.</p> <p>5. Solicitation to commit an offence is not attempt. : ‘</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of assumpsit on a due-bill, commenced March 29th 1866, returnable the first Monday in April; the writ was returned “ served.” A copy of the due-bill was filed with the praecipe, but no declaration or other statement. There was no appearance for the defendant, nor any affidavit of defence. Judgment was taken, April 21st 1866, for want of an affidavit of defence, for $186.90.</p> <p>The defendant took a writ of error, and assigned for error—</p> <p>1. Entering judgment for the plaintiff, there being no declaration or statement filed, as required by the statute.</p> <p>2. Entering judgment for plaintiff for want of an affidavit of defence, there having been no appearance on the part of the defendant.</p>

<p>Error to the Court of Common Pleas of Philadelphia.</p> <p>In the court below this was a feigned issue, directed by the Register’s Court, to try whether certain paper writings were the will of Abraham Titlow, deceased.</p> <p>The papers were a will dated July 18th, a codicil dated August 4th, and a codicil dated August 11th 1863.</p> <p>They were admitted to probate by the register on the 25th of June 1864, and letters testamentary granted to David Titlow, the executor named in the will.</p> <p>The will gave to his niece, Alcenia Schuyler, $6000, and a mortgage of $1000, the residue of his estate, to be distributed under the intestate laws.</p> <p>The first codicil directed that his executor should hold his estate in trust for five years, divide the income annually amongst his heirs, and at the end of five years sell and divide his estate as directed in his will.</p> <p>In his second codicil he directed the sale and division to take place at any time after a year and a day from his death.</p> <p>There was another will, dated May 30th 1863, offered to the register for probate, but not admitted. On the trial its execution was proved, and it was received in evidence.</p> <p>Joseph Titlow and John Titlow, brothers, and Hannah Fisher, a sister, appealed July 5th 1864 to the Register’s Court, in which an issue was directed, December 3d 1864, between David Titlow, plaintiff, and John and Joseph Titlow and Hannah Fisher, defendants.</p> <p>The case came on for trial in the Common Pleas, April 30th 1866, before Pierce, J.</p> <p>The plaintiff, having proved the execution of the will, rested.</p> <p>The defendants then gave in evidence proceedings in lunacy on Abraham Titlow, instituted November 2lst 1863, on the petition of David Titlow. The inquisition finding lunacy with lucid intervals, from June 25th 1863, was returned March 16th 1864, and David Titlow was appointed one of the committee.</p> <p>The defendants offered to prove by a witness whom they called “ that in March 1863 Abraham Titlow requested witness to draw his will, devising 20 acres of his land to his brother Joseph, and the remaining 14 to his nephews and nieces, excepting David Titlow and his children ; and that he then stated, that he would give nothing to John, because he was well enough off, and that he would give nothing to David or his family, because when he was in want of help he declined to help him; and that the witness did draw such a will and give it to Abraham Titlow; and further, that when witness asked Abraham why he gave to Joseph so much, he stated Joseph was the poorest, and had a large family.” The court rejected the offer, and an exception was taken.</p> <p>The defendants then called Christiana Drum and George Tit-low, legatees under the will of May 30th 1863, who were objected to as incompetent, rejected and exception taken.</p> <p>The defendants offered to prove by a witness, “ That in frequent conversations with Abraham for a period of ten years preceding his death, Abraham always said he liked Joseph the best.”</p> <p>The offer was rejected and an exception taken.</p> <p>A witness having stated that he had conversations with David Titlow in July 1863, about the sanity of Abraham ; the defendants offered to prove the conversations of David at that time and his statements as to the disposition to be made of the said Abraham, said conversations and statements being his opinion upon the sanity of Abraham Titlow at that time.</p> <p>The offer was rejected and an exception taken.</p> <p>The plaintiffs in rebuttal called Dr. Sidney R. Morris, who was a subscribing witness to the will, and had been examined in chief to prove its execution. He was asked to testify as to the general sanity of the testator. This was objected to by the defendants as being evidence which should have been given in chief, but was admitted and an exception taken.</p> <p>The plaintiffs offered to prove that on the 14th or 15th of July 1863, the testator said to David he wished him to be his executor; that he said he ought to get John to act, as he was the eldest; that the testator said John would not act; that John was sent for and declined ; that the testator handed David a paper (hereafter given) dated May 4th 1861, and told him to have a will drawn according to that paper, and the balance as the law allows, and put himself in as executor. This offer was objected to by the defendants, admitted and an exception taken.</p> <p>A witness for the plaintiff in his testimony detailed conversations he had had with the testator, and then said of the testator, “ he was then just as rational as any man could be.” The defendants moved to strike out this expression. •</p> <p>The motion was overruled and an exception taken.</p> <p>The plaintiff offered to prove “ that testator said to the witness two days after the execution of the will, that he had made his will, and that he stated the contents of it to him; and that he subsequently stated to witness that he intended to make a codicil so that the property could not be sold for five years ; and subsequently, that he meant to give David Titlow the right to sell it if he chose.”</p> <p>The defendants objected ; but the evidence was admitted and an exception taken.</p> <p>The plaintiffs offered the following paper:—</p> <p>“ Philadelphia, May 4th 1861.</p> <p>This is to Certify that I give bequeath to Philip S. Schuyler, Junr., undertaker, 19th Ward, six thousand dollars, lawful money, to be paid to him or his heirs or assigns after my discease, aliso the Morgage that I hold against his property for one thousand dollars to be released to the said Philip R. Schuyler, Junr., his heirs and assigns forever. Sined by me on the fourth day of May in the year of ower Lord one thousand eight hundred sixty-one.</p> <p>7,000. Abrah. Titlow, his [seal].”</p> <p>This was received against the defendants’ objection and an exception taken.</p> <p>The plaintiff offered to prove “ the declarations of testator of good will to the Schuyler family, showing an uniform intention to dispose of his property in the manner he did dispose of it by willand “ that testator at the time of making his will had poor nieces, as he said he had, who are provided for as he said they were by his will.”</p> <p>The offers were severally objected to by the defendants, admitted and exception taken.</p> <p>The defendants in surrebuttal for the purpose of contradicting David H. Schuyler, one of the plaintiff’s witnesses, offered evidence that the plaintiff had once brought the testator back when he had gone out.</p> <p>The offer was rejected and an exception taken.</p> <p>The defendants requested the court to charge:—</p> <p>1. That David Titlow is bound conclusively by the finding of the inquisition, he having promoted it, submitted to it and accepted the office of committee founded thereon:</p> <p>2. That a lunatic has no power to pass his estate in land immediately by conveyance, or mediately by will, if the lunacy has been established by inquisition. A lucid interval can avail nothing, unless the finding as to lunacy in general has been avoided by due course of law: which the court refused, and an exception was taken.</p> <p>The jury found for the plaintiff.</p> <p>The defendants took a writ of error, and assigned for error the rulings on the evidence and the answers to their points.</p>

<p>1. An owner of premises leased them and gave notice to the tenant to quit, he afterwards conveyed the premises and his grantee again conveyed them; the last grantees are assignees within the meaning of the Act of March 21st 1772, and could recover possession under that act.</p> <p>2. A description of promises in an inquisition under the Act of 1772 is sufficient, if the same as in the lease.</p> <p>3. The Act of 1772 is not repealed by the Act of December 14th 1863 ; the remedies under them are cumulative.</p>

<p>1. By the act of subscribing to the capital stock of an incorporated association, each associate undertakes to raise his proportion of the capital as it may be called for by the directors.</p> <p>2. The law authorized the directors to call in the subscription, this ordinarily implies, a corresponding duty to pay.</p> <p>3. The articles of association under the law, contemplated a substantial capital for defined purposes; this was both to carry out the object of the corporation and for the protection of creditors, and therefore created a personal liability for the subscriptions.</p> <p>4. A purchaser from an original subscriber is substituted to his obligations as well as his rights, and, being accepted by the corporation, a privity is established between them.</p> <p>5. Canal Co. v. Sansom, 1 Binn. 70, and Palmer v. Kidge Mining Co., 10 Casey 288, criticised.</p> <p>6. In a suit arising under a charter of another state, the decisions in that state are the best evidence of the rights and duties of stockholders under it.</p>

<p>Error- to the Court of Common Pleas of Philadelphia.</p> <p>This case commenced in proceedings instituted September 18th 1866 before Alderman Beitlor, by John B. McCreary against Patrick McMullin, for the recovery of premises alleged by Mc-Creary to be in the occupancy of McMullin as his tenant.</p> <p>The plaintiff complained that he was owner of a certain tenement, &c., since August 6th 1864; that Patrick McMullin was then, and is yet, tenant of said premises; that said John B. McCreary is unable to furnish proof of the beginning and conclusion of the term of said McMullin as tenant of said premises; and on December 26th 1865 gave notice in writing to McMullin that he was unable to make such proof, and required McMullin within thirty days from the time of service to furnish him in writing with the date at which his term of tenancy commenced; that McMullin failed and refused to comply with the said requirement within said thirty days; and after the expiration of said period McCreary gave McMullin three months’ notice to quit the premises ; that three months have elapsed since the service of said notice, and that McMullin refuses to comply with said requisition to quit said premises.</p> <p>The alderman found: ii:The above complaint is in all particulars just and true, and enters judgment against said defendant that he shall forthwith deliver actual possession of said premises to plaintiff, and gives judgment for $81 damages.”</p> <p>The defendant removed the' proceedings by certiorari into the Court of Common Pleas, where he filed a number of exceptions, several of which were to the point that the complaint and proceedings did not show that there was any lease of the premises. The proceedings were affirmed in the court below; this affirmance was assigned for error.</p>

<p>Appeal from Nisi Prius in Equity.</p> <p>The proceeding was by bill, filed July 25th 1866, by William Field against Charles E. Lex and others, Directors of the Girard College, and William C. Haines.</p> <p>The bill set out that Stephen Girard, by his will providing for the college, directed that “ a competent number of instructors, teachers, assistants and other necessary agents, shall be selected, and, when needful, their places from time to time supplied. They shall receive adequate compensation for their services; but no person shall be employed who shall not be of tried skill in his or her proper department, of established moral character, and in all cases persons shall be chosen on account of their merit, and not through favor or intriguethat the councils of Philadelphia were authorised, by Act of Assembly, to provide for the appoint-' ment of sucb officers and agents as they might deem necessary to execute the trust created by the will; that the councils constituted a board of directors to superintend the management of the college, and provided by ordinance “ that it shall be the duty of the board of directors to prepare as soon as practicable, and to submit to councils for their approbation, the plan of a system of government and instruction for the said college having reference to the provisions of the will of Stephen Girard, as far as they are expressed on this subject; which plan shall specify the number of instructors, agents and officers necessary for the instruction and government of the inmates of said college, and the salaries to be paid said instructors, agents and officers ; and whenever the board of directors shall consider it necessary to employ additional instructors, agents and officers, they shall apply to councils for authority before engaging themand afterwards ordained that the directors, amongst other officers, should elect a steioard, who should, under rules to be adopted by the directors, purchase food, be responsible for the cleanliness and good order of the apartments used by the pupils. * * * He shall " be responsible for the care and condition of the grounds and buildings of the institution. He shall reside in or near the college outbuildings, in such place as may be designated by the directors;” and that the defendants have been elected directors of the college; that the complainant was elected steward in November 1862, and “has faithfully performed the duties of said office, and he is advised that so long as he shall continue so to do, his tenure of office, under said will, is for good behavior that a resolution has been passed by the directors that the term of office of the present steward should expire on the 31st of July; that “the object of the resolution was to remove your orator, in order to select by intrigue and favor a successor who had no tried experience in the department to which he would be assigned by accepting the duties of the office of steward, and that no cause can be assigned against your orator which impeaches in the slightest his merit as an officer ;” and that the action is in conflict with the will and the laws of the Commonwealth applicable to the college; and asked,</p> <p>“ That it be decreed that the board of directors of the Girard College have no power to remove an officer thereof, created by an ordinance of the city of Philadelphia, except for a cause assigned, and which is made needful to execute the provisions of said will.</p> <p>“ That the defendants may be enjoined specially until hearing, and finally thereafter, from removing your orator from the office of steward of Girard College by virtue of their action of July 11th 1866, and from obstructing him in the performance of the functions thereof.</p> <p>“ That it shall be decreed that your orator shall continue to exercise the duties of the office of steward, unless removed for cause and for further equitable relief.</p> <p>The defendants, amongst other things, answered that the councils by ordinance of September 16th 1847, provided that the officers and agents, including the steward, are to be elected to “ hold their offices during the pleasure of the said directors that the complainant ceased to hold the office of steward on the 31st of July, that “ being the pleasure of the directors.”</p> <p>The defendants deny that the object in removing the plaintiff from the office of steward as aforesaid was without any cause whatsoever, or, as is wrongfully charged in the said bill, in order to select by favor or intrigue a successor to the plaintiff without experience in the duties of his office.</p> <p>On the contrary, the defendants aver that they acted in good faith in the matter of the removal of said plaintiff, because it was their will and pleasure so to do — because it has ever been the custom and practice in the management of said institution, from time to time, to remove its officers and agents — and because it was manifestly for the best interest and good welfare of the college that a change should be made in the office of its steward. And in all this the defendants acted according to their best discretion; they denied also that their action was in conflict with the will or with any law of the Commonwealth.</p> <p>Stronu, J., overruled, at Nisi Prius, a motion for a special injunction. The case was afterwards heard, on bill and answer, before Read, J., who dismissed the bill.</p> <p>• Dismissing the bill and not granting the relief prayed for were the errors assigned.</p>

<p>1. A shorter period than twenty years aided by circumstances which contribute to strengthen the presumption of payment of a bond, &c., from lapse of time may be submitted to a jury as grounds for the presumption of the fact of payment.</p> <p>2. Slight circumstances may be given in evidence in proportion as the presumption strengthens by lapse of time, but they must be such as aid the presumption from lapse of time.</p> <p>3. To aid presumption of payment from lapse of time, evidence of the needy circumstances of the obligee and of the easy and solvent circumstances of the obligor, would in most cases be competent.</p> <p>4. In an action on a bond a greater sum than the penalty may be recovered.</p>

<p>1. A testator devised the residue of his estate to trustees until his youngest child who might then be living should attain twenty-one years, and when his youngest child who might be living should attain that age, he gave it to such of his children as might then he living and their heirs. A child who died before that time took nothing under the devise.</p> <p>2. No vested interest was given; the devises were contingent and became vested, — when the youngest child living reached 21, — in such children as were then in life.</p> <p>3. The provision was not a postponement of the time of enjoyment; it was a selection of individuals from a class; a description of persons, not a regulation of the interest given.</p> <p>4. A gift to such of a number of persons as may meet a defined description, is not a gift to all the persons whether they meet the description or not.</p> <p>5. A court may strike out unmeaning and repugnant phrases, when the meaning of the testator admits of no doubt.</p> <p>6. In an estate given to trustees in whatever form it is given, the trustees take such an estate as will enable them to execute the trust.</p> <p>7. A limitation of real estate to trustees, their executors, administrators and assigns, will give them an estate in fee, if the purposes of the trust require it; and a devise to trustees and their heirs gives less than a fee, if a less estate will answer the purposes of the trust.</p> <p>8. A separate use for a woman cannot be created, unless she is covert or unless in immediate contemplation of marriage.</p>

<p>1. Freight was delivered to the agent of transporters and he made the contract for carriage without delivering a bill of lading or without excepting dangers by fire; the form of the plaintiff’s usual bill of .lading which contained such exception was not evidence for the transporters.</p> <p>2. The agent of the transporters, at the request of the shipper, undertook to obtain orders for the freight from government storehouses and did obtain them and got the freight. Held, that he was not the agent, of the shipper.</p> <p>3. A vessel whose route was by the Potomac river, Chesapeake Bay, Chesapeake and Delaware Canal to Philadelphia, is “ used in rivers and internal navigation” under the Act of Congress of March 3d 1851.</p>

<p>1. The constitution is not to be interpreted as a private writing, by rules of art, but in the light of ordinary language, the circumstances attending its formation and the construction placed upon it by the people.</p> <p>2. Special divorce laws are legislative acts and prim®, facie are founded on sufficient cause not within the jurisdiction of the courts; this cause is inquirable into as a fact when not set forth in the act.</p> <p>3. The restrictions in the amendments to the constitution, are a recognition of the poAver of the legislature to grant divorces outside of the restrictions.</p> <p>4. The proA'isions in the Federal and state constitutions forbidding the impairing of the obligation of contracts, does not prevent a severance of the marriage relation by consent or by the courts for cause.</p> <p>5. In declaring a dissolution of marriage, the presumption is that the legislature acts upon sufficient cause.</p> <p>6. The power of the legislature to pass a divorcing laAV being legislative, the judicial quality is merged and notice is unnecessary because it is a law and not a decree.</p> <p>7. The power to the legislature to grant divorces being limited by the constitution to certain grounds, an inquiry into them is a necessary duty under the bill of rights to prevent injustice.</p> <p>8. If the boundary of a limited power be overstepped by the legislature, its act is void and must be inquired into. ,¡Ut</p> <p>9. Jones v. Jones, 2 Jones 350, affirmed.</p> <p>10. The presumption is that every legislative act of divorce.Jgrfér jh^tN cause, but it is not a conclusive presumption that the case is oujiside tl’e jurisdiction of the courts. , V</p>

This was a proceeding for divorce a mensa et thoro by Emily Roberts against William Roberts. The libel was filed August 18th 1864; it set forth the marriage of the parties in December 1824 and desertion by the husband from about the 1st day of Mav 1864.

<p>This was a bill in equity, filed in the Supreme Court, June 12bh 1866, by William O. Curry against William Scott, John Van McCollum, John P. Vincent, John Hearn, John F. Tracy, Milton Courtright and the Erie and Pittsburg Railroad Company.</p> <p>By an act passed the 1st day of April 1858, John A. Tracy and six others were incorporated as the Erie & Pittsburg Railroad Company, subject to the provisions of the General Railroad Law of February 19th 1849. The capital stock was to consist of 20,000 shares of $50 each, with liberty, by a vote of the stockholders, to increase it to 50,000 shares.</p> <p>Up to February 10th 1865 there had been issued 12,540 shares of stock, fully paid up, of which the complainant owned 15 shares, leaving 7460 shares not issued. On that day a law was passed authorizing the “ directors to receive subscription for all or any part of the unsubscribed stock of said company, under such regulations as to time and manner of such subscription as said directors shall prescribe — any law or usage to the contrary notwithstanding ; and the subscribers to said stock shall have the same rights in said company as if they had been original subscribers thereto: Provided, That any person subscribing therefor, shall pay, at the time of subscribing, five dollars on each share so subscribed.”</p> <p>On the 21st of March 1865 another act was passed, authorizing the directors, for the purpose of purchasing rolling-stock, &c., “ tb issue a preferred stock to an amount not exceeding five hundred thousand dollars, on which the holder shall be entitled to receive, at all events, such interest or dividends, not exceeding eight per cent, per annum, as the'board of directors of said company shall fix and determine at the time of issuing of said stock, with the right of the holders thereof to vote at all elections and receive a share of all dividends, over the special rate fixed to said stock, equally with the common stock of said company; and the said board of directors may sell said preferred stock to such person or persons, and for such a price and on such terms, as they shall deem best.” This law was passed without the plaintiff’s knowledge or approval, and he has always protested against it as unauthorized and void. The directors accepted both acts April 7th 1865.</p> <p>J. Y. McCollum, one of the defendants, subscribed for the remaining stock of the original authorized capital, paid $5 on each share, and certificates were issued to him: all being without the plaintiff’s knowledge, and he never ratified it. At an election for directors January 8th 1866, 9050 shares were voted for Preston Metcalf and others for officers, and 10,780 shares, including the 7460 last issued, were voted for William L. Scott and others of the defendants, and other persons; the votes of 7460 shares were objected to by the holders of the 9050 shares, but they were received and counted, and William L. Scott and his associates declared duly elected.</p> <p>The bill set out these facts, and also averred that the defendants intended to issue the preferred stock, and hypothecate it, and make dividends of 8 per cent, per annum on it; and that a large proportion of the legal stockholders never authorized or consented to the issue of the preferred stock.</p> <p>The complainant claims that said two acts are fraudulent and void and not binding on him : and that the subscription of 7460 shares made by McCollum are fraudulent, that the votes given thereon are null and void, and that the elections of Scott and his associates are erroneous, illegal and void, and confer no right to enjoy the same: and prays that the said two Acts of Assembly be declared null and void, and that the 7460 shares of McCollum be decreed to be given up and cancelled, and the election of January 8th 1866 be set aside, &c.</p> <p>The defendants demurred.</p>

<p>Certificate from Nisi Prius.</p> <p>These were several actions of assumpsit brought to January Term 1861 in the Supreme Court, by J. Vaughan Merrick and others, trading as Merrick & Sons, against the Germania Fire Insurance Company, the Hanover Fire Insurance Company, the Fulton Fire Insurance Company and the Lorillard Fire Insurance Company, all of the city of New York.</p> <p>The cases were tried at Nisi Prius before Thompson, J., and were for loss by fire of property of the plaintiffs insured by the defendants. The policy of each company for the premium of $100 insured the plaintiffs for one year from the 25th of March 1864 “ to the amount of -$5000 on stock of tools, steam-engines and patterns and works in a finished and unfinished condition, their own or held in trust, contained in buildings on the lot of ground in the city of Philadelphia, bounded by Fourth, Fifth and Federal streets, and Washington avenue. The same being the property of said Merrick & Sons, and known as the ‘ Southwark Foundry.’ ”</p> <p>The seventh condition annexed to the policy is: “ If, at the happening of any fire, the assured shall have insurance under a floating policy or policies, not specific, but covering goods generally in various places not designated, and yet within limits which include the premises or property herein insured, such policy, as between the assured and this company, shall be considered as covering any excess of sound value of the subject insured beyond the amount covered by the specific insurances thereon; and to determine the amount for which this company is liable in case of loss, such floating policy shall be considered an insurance on the property to the extent of such excess.”</p> <p>In addition to these four insurances, there were insurances in other companies on the same subjects to the aggregate amount of $75,000.</p> <p>There was also an insurance of $10,000 by the Liverpool and London Insurance Company on machinery, &c., of plaintiffs in “ the erecting shop,” on the lot of the Southwark Foundry, and further insurances in the aggregate of $50,000 “ on machinery made, and being made, intended for, and to be placed in, the steamer Chattanooga, in the various buildings of the assured, but chiefly in the building known as the erecting-shop, all at the Southwark Foundry, bounded by Washington and Federal and Fourth and Fifth streets, Philadelphia,” were made in six other companies. All the policies were continued until May 17th 1865, when a fire occurred, destroying much of the property insured. The whole loss was adjusted at $50,279.32. It was • divided by the representatives of the several companies as follows :—</p> <p>Machinery made and being made, for Chattanooga,</p> <p>outside erecting-shop ..... $1,172.87</p> <p>Machinery made and being made, for Chattanooga,</p> <p>contained in erecting-shop .... 10,430.40</p> <p>Machinery made and being made, not intended for</p> <p>Chattanooga, in erecting-shop .... 10,712.00</p> <p>Machinery made and being made, not intended for Chattanooga, contained in other shops than the erecting-shop ....... 1,924.16 -</p> <p>Stock of tools in machine-shop, and erecting-shop,</p> <p>and other buildings, and patterns '. . . 26,039.80</p> <p>Atwood Smith, a witness for plaintiffs, under objection and exception, testified his opinion that the adjustment was correctly made; that the defendants’ policies were general policies; also that a blank form of policy of the Liverpool and London insurance Company shown him, was a floating policy. The plaintiffs also gave in evidence, under objection and exception, the blank form testified to.</p> <p>There was evidence on both sides as to what was a floating policy and the principles upon which the loss should be distributed amongst the several companies.</p> <p>The question in controversy was the amount to be paid by the defendants, they alleging that they were bound only for $1911.73 each, which sum they paid to the plaintiffs, and it was received by them without prejudice. The plaintiffs claimed $3029.37. The suits were to recover the difference.</p> <p>Defendants asked the court to charge :—</p> <p>2. According to the terms and conditions of defendants’ policies, the defendants were not liable to contribute to the plaintiffs for any part of the loss to the subject insured by the' special. policies, except it was for their respective proportions of the loss in excess of the amount of said specific insurances.</p> <p>3. The loss on the machinery made and being made, &e., for the “ Steamer Chattanooga,” being specifically covered by the policies of the six companies, the defendants were not liable to contribute to any part of the ioss thereon.</p> <p>4. The machinery manufactured, unmanufactured and in pro cess of manufacture, &c., in the “ erecting-shop” being specifically insured in the Liverpool and London company in the sum of $10,000, the defendants were liable to contribute to the plaintiffs only their ■ proportion of the loss thereon in excess of that sum.</p> <p>5. The defendants were also liable to contribute their proportion of the balance of the loss on the stock of tools, steam-engines, patterns and work in a finished and unfinished condition, plaintiffs own or held in trust in said foundry, which proportion was that which their respective insurances bore to the whole of insurances thereon by all of the companies insuring the same, and if the defendants have paid their respective proportions to the plaintiffs, the plaintiffs cannot recover.</p> <p>6. The words employed in the seventh condition of defendants’ policies in referring to floating policies embrace defendants’ policies as well as all other floating policies by other companies covering the same subject, there being nothing in the condition excluding the policies of the defendants.</p> <p>The court charged:—</p> <p>“ The property insured was destroyed by fire on the 17th of May 1865. These facts, together with the execution of policies, the preliminary proofs and appraisement of loss, are admitted, and about these facts no dispute exists. The question of the case is the principle of adjustment to be adopted between these defendants, who are general insurers against loss by fire of all the property described and embraced within the limits of the Southwark Foundry; and the special or specific policies insuring portions of the same property within parts of the buildings, and on portions of property designed for special use, such as the erecting - shop, machinery and materials for the United States steamer Chattanooga, in said buildings, and within the area of foundry property. The defendant companies claim to have each paid its due proportion of the loss, based upon an apportionment which requires the specific policies to pay the full amount of loss on the property covered by them, and the excess not so covered by the amount of such insurances only. Under this system of adjustment, each company paid the plaintiffs $1911.78 in full, as they allege, of the sum of the whole loss which they claim they are liable for. These amounts were specially receipted by plain tills, with a reservation of a right to press their claim against the companies respectively for a larger amount, based upon the system of adjustment adopted by them, which you have seen is materially variant from that of the defendants. By this system the plaintiffs would be entitled to $3029.37 from each of the defendants, less the amount of an appraisement of property, which we do not consider to have been covered by their policies, to wit, gas-pipes and fixtures and the like.</p> <p>“ The whole ease, in my judgment, turns upon the question of which of the systems of adjustment is correct.</p> <p>“We have had the opinions of experienced insurance agents and underwriters on this question. Two of these gentlemen seem to have pretty decidedly embraced the theories of their respective companies. One of them being of opinion that the defendants’ system is right, referring to some practice in the city of New York on that basis, but none in Pennsylvania.</p> <p>“ The other being equally settled in opinion that the adjustment insisted on by the plaintiffs is the true rule under the policies in question in their relation to the specific policies covering portions of the same property covered by the general policies, and thinks that to be the practice in the London insurance companies. A third, an experienced underwriter of this city, agrees in opinion with the defendants’ theory, but has never known a case of adjustment on policies like those in this case — general and specific.</p> <p>“We are not materially benefited by these opinions, and we must decide the question for ourselves as best we may, having had the benefit of most full and able arguments by the counsel on the opposite sides of the case.</p> <p>“ The question then is, are the general policies, covering the whole property within the area of the ‘ Southwark Foundry,’ liable to contribute rateably to the loss sustained by the specific policies on property in parts of said area, or specific property within it. If they had all been general policies, they would have been liable to contribute rateably if all solvent. Why should there be a difference when a part is covered by specific policies, and also covered by the general policies ? It is a case of double insurance of the part so covered, and a more favorable risk than a general policy on the whole. This is demonstrable by the rate of premium. The general policies get 2 per cent., and the special, 1|-. The latter should get the higher premium if they are not entitled to contribution from the former. I instruct you that if there be nothing in the conditions in these policies by which the rule is changed, that the defendants are liable to contribute rate-ably in paying the loss on the property specifically insured and covered by both classes of policies.</p> <p>“ Let us see how this is, by looking at the policies themselves. In the general policies this provision is to be found: ‘ In case of loss, the insured shall not recover on this policy any greater proportion of the loss or damage sustained to the subject insured than the amount hereby insured shall bear to the whole amount insured in the said property.’</p> <p>“ If this be not controlled by some other condition or stipulation, it furnishes a plain and just rule. It has been said the object of this clause was to exclude liability on account of the insolvency of other companies. This may be one and perhaps the main object, but it shows also that this is the admitted extent of liability by the insurers themselves. It is their language, and the plaintiffs have a right to the full benefit of it in their favor, as well as to bear its burdens when against them.</p> <p>“ It is said, however, that this is restricted by the seventh condition of insurances attached to the policy. • I admit that the conditions attached to a policy of insurance are to be regarded as the terms on which the contract is made, and are binding on the .parties, if clear enough to be understood and applied in the judicial tribunals. The 7th clause is as follows:—</p> <p>“ ‘ If at the happening of any fire, the assured shall have insurance under a floating policy or policies, not specific, but covering goods generally in various places not designated, and yet within limits which include the property herein insured, such policy, as between the assured and this company, shall be considered as covering any excess of sound value of the subject insured beyond the amount covered by the specific insurances thereon; and to determine the amount for which this company is liable in case of loss, such floating policy shall be considered an insurance on the property to the extent of such excess.’</p> <p>“ It is my duty to construe this clause, and you will be bound by my opinion of it, whether it be a confident one or not, which I am free to say it is not. That is no concern of yours. I must expound the law, and you to find the facts and apply the law to them. If I am wrong thereUs a tribunal to correct me, and to that tribunal I hope this case may go, to determine whether w'hat I am going to decide is right or wrong. I regard it as an important question, and one undecided in this state hitherto.</p> <p>“Whatever may have been intended by this clause, I am not able to give it the construction contended for, to wit, that it limits contribution by the general policies to the excess not covered by the specific policies. In other words, that it is a condition that they are not to be called on for anything until the specific policies are exhausted, and then are to contribute only to the excess not covered by them. Such a condition could be expressed in a few lines so that it might be comprehended by anybody. It cannot, as it is, be comprehended to mean what is claimed by anybody. Is it the insurers, describing their own policy, who speak ? This cannot be inferred from the clause. It speaks in the third person, of floating policies, without defining their own to be such. I might safely challenge the ingenuity of the most ingenious if this clause be held to assert that their policies are floating policies, and that it was such that are spoken of, to surpass in ambiguity this clause, and find any meaning. I will not enlarge, but instruct you that the clause cannot be construed, as the defendants contend, to wit, to exonerate them from contributing rateably to the loss on the property insured in the specific policies, which property was also covered by the general policies. This being the law for your government, you have but little else to do than to find for the plaintiff according to their mode of adjustment, less the over-appraisement already noticed and referred to you.</p> <p>“ These views I consider substantially answer the several points by the defendants, but lest it might be alleged that they were overlooked, I will read and answer them consecutively :—</p> <p>“ 1. To the 1st point I assent.</p> <p>“ 2. To the 2d point I dissent and refuse so to charge. For reasons, see general charge.</p> <p>“ 3. To this point I also dissent. See general charge.</p> <p>“ 4. To this point I also dissent, and it is refused. Also see general charge.</p> <p>“ 5. To this point I answer: If it be meant to assert that all the general policies must contribute rateably only to the extent of the losses on property not included in the specific policies, and then to the excess only of the loss above the amount insured in the specific policies, I dissent. As already said, they are bound to contribute rateably with the specific policies on the property insured by them, and embraced in their policies also. As to the last clause of the point, there is no evidence to sustain it, under our view of the law.</p> <p>“ 6. To this point I dissent.”</p> <p>The verdicts were for the plaintiffs, each for $1110.37.</p> <p>The defendants having removed the case into the court in bane, assigned for error that the judge erred:—</p> <p>1. In charging the jury that they had “but little else to do than to find for the plaintiffs according to their mode of adjustment.”</p> <p>2. In allowing Atwood Smith to testify his opinion of the character of the policies of the defendants, and of the blank form of the Liverpool, London and Globe policy, and in allowing the said form to be put in evidence, and to testify that the adjustment of plaintiffs was correct.</p> <p>3. In his answer to the 2d, 3d, 4th and 5th points of the defendants respectively.</p> <p>4. In refusing to affirm the 6th point of the defendants.</p>

<p>1. A will ordered land to be sold without designating any one to execute the power: — the executors may maintain ejectment for it without authority from the Orphans’ Court.</p> <p>2. It is only the powers contained in the will which are to be executed under the Orphans’ Court, not those necessary to the execution of the power and not in the will.</p> <p>3. The 12th and 13th sections of the Act of February 24th 1834, construed.</p> <p>4. A will signed by another for the testatrix was admitted to probate by the register on the usual proof by the subscribing witnesses, and was after-wards sustained on an issue in the Common Pleas. In ejectment one of the witnesses said he did not recollect that the testatrix requested her name to be signed by another, &c. Held, that this negative testimony could not overturn the positive grounds arising from the probate.</p> <p>5. Want of memory will no more destroy the attestation than insanity or death.</p> <p>6. The attesting signature attests that everything was'rightly done unless the act attested be positively impeached.</p>

<p>1. A coal company under its charter constructed a railroad to connect with Lehigh Navigation, which thus notoriously became indispensable for the transportation of its coal. All contracts with the coal company were made in view of these facts.</p> <p>2. The coal company contracted with plaintiffs for the delivery of a large quantity of coal during a season; before the time for delivery of a large part of the coal, a flood swept away all the works of the navigation company, so that the coal company were prevented from fulfilling their contract. Held, that they were excused from compliance while they were so prevented.</p> <p>3. The coal company would be relieved from exact compliance by an act of God over which they could have no control and which they, not being the owners of the navigation works, could not have provided against.</p> <p>4. In the contract the company stipulated for an advance in price, if any advance on freight and tolls accrued before a time fixed. . The company had a right to be paid for any such increase by the most usual and ordinary mode.</p> <p>5. The offer to furnish coal on the basis of the contract including advance on freight and tolls, if refused, was a sufiicient compliance by the company.</p>

This was an action of covenant on a ground-rent deed, commenced' June 3d 1865, by Morris S. Wickersham against Arthur Cowton. John Dick, on the 5th of October 1852, conveyed to Elizabeth Steinruck, wife of Jacob Steinruck, in fee, certain real estate in Philadelphia, reserving a ground-rent of $700 per annum. The deed was signed by the grantor and wife, and also by the grantee and her husband.

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of covenant on a ground-rent deed by Joseph Eneu and others against George Schafer, commenced August 31st 1864, in which a case was stated for the opinion of the court as follows: — ■</p> <p>James Eneu Sr., November 29th 1849, granted to George Schafer certain premises, reserving an annual rent of $33.75. He died in December 1851, having devised the said rent in trust for the sepai’ate use of his daughter Theresa Clark for life, and upon her decease to convey the same to her children and the heirs of her children for ever, gave the residue of his estate, real and personal, to his children, naming them, in fee.</p> <p>Mrs. Clark died June 19th 1861, without issue of her body, but leaving three children, adopted in conformity with the Act of Assembly of May 4th 1855, and by decrees of the Court of Common Pleas of Philadelphia, made December 8th 1860, and June 18th 1861.</p> <p>By her will, dated May 24th 1861, Mrs. Clark devised as follows: “By certain proceedings in the Court of Common Pleas of Philadelphia, I have adopted Hugh D. Fagen and Lawrence Gr. Fagen, two of the children of Patrick A. and Ann M. Fagen, and Hiram M. Learner, child of Hiram and Theresa Learner, as my children and heirs, with the view and intent that they shall have all the rights of children and heirs of their adopting parent, according to the laws of Pennsylvania, and shall thereby inherit the property and estate devised to me for life, and after my death to my children and their heirs by the last will and testament of my father, James Eneu, deceased.”</p> <p>The plaintiffs are the children of James Eneu, or the children of such as are deceased.</p> <p>The devisees of Mrs. Clark are in possession of said rent, and have so been in possession since her death.</p> <p>If the court shall be of opinion that the plaintiffs are entitled to recover, then judgment is to be entered in their favor for $118.12, with interest from July 1st 1864; and either party may have a writ of error.</p> <p>The court gave judgment for the plaintiffs for $118.12, with interest, &c., which was assigned for error.</p>

This was an attachment execution issued to September Term 1862, by Daniel Woodhouse to the use of Aaron Degraw, against The Commonwealth Insurance Company, defendants, and Edward J. Lauman, garnishee. The defendants were incorporated on the 13th of April 1854, the par value of the shares being fixed at $50.

This was a stockholder’s bill by Timothy C. Boyle against The Philadelphia and Reading Railroad Company, and others, managers and officers of said company, setting out the incorporation of the defendants, with authority, by Act of Assembly of April 3d 1833, and other acts, to make a railroad from Philadelphia to Reading and Pottsville, with such powers “ as may be necessary or incident to the malting and maintaining the said railroad, and the conveyance of passengers and the…

<p>This was an appeal from a-decree of the District Court of Philadelphia. In Equity.</p> <p>The bill was filed to March Term 1865, by Richard M. Wistar against James McManes and John McIntyre, McIntyre being trustee and assignee of the complainant.</p> <p>• The bill alleges that the complainant, on the 24th of July 1831, conveyed his real estate upon certain trusts, and that on October 17th 1882, and June 19th 1838, he took the benefit of the insolvent laws, assigned all his estate and was discharged, and that on the 18th of April 1868, all his estate not sold and distributed amongst his creditors became vested by sundry conveyances, &e., in McIntyre, one of the defendants, as the complainant’s trustee and assignee ; that his whole estate after distribution until February 16th 1864, consisted in unavailable lands'; in Clinton county, Pennsylvania, and that from 1831 to 1864 he had no other estate or income, was reduced to great necessities, and unable to support himself without the greatest difficulty; that in 1854 some of these lands were about to be sold for taxes, that his trustees had no moneys in their hands, nor had he any means, and in this emergency he borrowed from McManes, the defendant, September 5th 1854, the sum of $500 at the usurious rate of interest of 4 per cent, per month, and that on July 2d 1855, being in great necessity, he borrowed of McManes the further sum of $300 at ■ a like rate of interest, one of the conditions of the last loan, as required by McManes, being that the complainant should execute and deliver to him a judgment-note, payable in six months, for $1148.22, being the principal of said loans, and interest at the rate of 4 per cent, per month; that on the 1st of January 1857., at the request of McManes, he gave him another judgment-note for $450, for the interest, at 4 per cent, per month, on the first judgment-note; on October 16th 1857 he gave McManes a due-bill at 15 days for $300, for the usurious interest on the notes, and on November 25th 1858, under threat of execution, he gave him a further promissory, note for $678, at 10 days, for like usurious interest;. that the only money due to McManes are the sums of $500 and $300, and lawful interest on them, which complainant tendered, &c. The bill further set forth that in April</p> <p>1863 McIntyre, as assignee of complainant, sold and received the purchase-money of some of the lands, and on February 16th 1864 the Court of Common Pleas decreed that the lands not sold should be reconveyed to complainant, that McIntyre should settle his account, and pay the balance in his hands to the complainant'; that McManes took no steps to proceed at law upon the notes until the receipt of money by McIntyre, and refused to receive what was legally due, although the complainant frequently offered to pay him, but entered judgment on the notes, and issued attachment-executions, making McIntyre garnishee; that McIntyre paid $1000 on the notes, accepted service, and MeManes, on September 21st 1863, entered judgment for want of answers to interrogatories ; that, March 19th 1864, on complainant’s affidavit averring the foregoing facts as to the usurious character of the notes, the court granted a rule to show cause why the judgments should not be opened and the defendant let into a defence, and took the deposition of McIntyre, the only person beside the complainant and MeManes who knew anything about the loans ; that McIntyre declared he did not knoAV the terms of the loan, and there being no other evidence, the rule Avas discharged; that MeManes presented the judgments to the auditor to whom McIntyre’s account as assignee had been referred, and claimed the whole amount, with interest, which was allowed by the auditor, and the exceptions to such allowance were then pending in the Court of Common Pleas. “ That in consequence of said fact of usury being known to no one but complainant and defendant Me-Manes, complainant is wholly without relief at law, and fears that execution may issue on said judgments against said McIntyre, and he be compelled to pay said sum of $2440, and that said Court of Common Pleas will dismiss complainant’s exceptions to said report and confirm same.”</p> <p>Then followed nine interrogatories, and the prayer “ That said MeManes be restrained from further proceedings on said judgments or attachments, or in any way at law against complainant, or McIntyre, to recover the amount thereof, or that allowed to McIntyre in his account; that Mcíntyre be restrained from paying the same to MeManes, and that MeManes be decreed upon payment to him of said $500 and'$300, and lawful interest, less said $1000, to deliver up said judgment-notes, due-bill and promissory note, to be cancelled as illegal and voidable on account of the usurious interest therein,” &c.</p> <p>MeManes demurred to so much of the bill as seeks that the defendant may answer as to the circumstances of the loan of the sums of $500 and $300, and the rate of interest at which it was loaned, as to the judgment-note for $1148.22, including the above sums and interest at 4 per cent, per month, and the $450 note, being for like usurious interest, as to the sole consideration for the several judgments being the first two sums; as to the circumstances of the loans, &c., being known only to complainant and respondent, &c.</p> <p>“ And for cause showeth that it appears by the 13th, 14th, 15th and 16th paragraphs of the bill, that said judgments for $1148.22 and $450 are res judicata by the District Court sitting at law, and are still the subject of judicial investigation and determination before the Court of Common Pleas.”</p> <p>He put in also a general demurrer.</p> <p>He also answered the parts of the hill not demurred to; the answer is immaterial to an understanding of the ease.</p> <p>McIntyre filed no plea, answer or demurrer.</p> <p>The District Court sustained the demurrer, and dismissed the bill: this was the error assigned in the Supreme Court.</p>

<p>1. In a lease of a coal-mine, the lessee stipulated that he would pay a rent for coal taken out and also mine a certain number of tons annually. Held, that settlements for coal taken out, were not as matter of law a discharge of a breach in not taking out the stipulated quantity.</p> <p>2. The covenant for rent for coal mined, was distinct from the covenant to mine a certain quantity.</p> <p>3. Two mines belonging to the same lessors, the one contiguous to the other, wore leased by two leases to one lessee. One stipulation in each lease was that the lessee was not bound to mine more coal than could be taken away by cars furnished by a railroad company named. It was no excuse for not working one mine that the cars furnished, were not sufficient to take away the coal mined in the other.</p> <p>4. That the coal which the lessee failed to take out according to his covenant, was of greater value to the lessor at the end of the lease than if it had been taken out, is not a ground for reducing the claim for the breach to nominal damages.</p> <p>5. The rent per ton agreed for was stipulated damages to the extent of the non-p erform anee.</p> <p>6. The uncertainty as to the extent of the injury, is a criterion to determine whether it is a penalty or liquidated damages.</p>

<p>Certificate from Nisi Prius.</p> <p>This was an amicable action between Isaac S. Waterman and Thomas Beaver, trading as Waterman & Beaver, plaintiffs, and The Philadelphia and Reading Railroad Company, defendants, filed February 17th 1866, in which the following case, in the nature of a special verdict, was stated for the opinion of the court:—</p> <p>“ 1. In February 1864, the plaintiffs agreed to sell and the defendants to purchase 4000 tons of railroad iron, of which 1652|§ tons were to be delivered, and were actually delivered, after the 1st of July 1864.</p> <p>“ 2. The contract fixed the price to be paid by the defendants, but contained no provision for the payment of the duties to be imposed by law subsequent to the date of the contract.</p> <p>“3. The 1652¿-| tons of railroad iron were manufactured by the plaintiffs from pig-iron, manufactured by themselves, upon which no duty had been paid.</p> <p>“ 4. 13\ tons of pig-iron are required for the manufacture of one ton of railroad iron.</p> <p>“ If the court shall be of opinion that, under the provisions of the 97th section of the Act of Congress, entitled ‘ An act to provide internal revenue to support the government, to pay interest on the public debt, and for other purposes,’ approved June 30th 1864, the plaintiffs are entitled to recover from the defendants the increased tax of $1.50 per ton only upon the 1652¿$ tons of railroad iron as aforesaid, then it is agreed that judgment shall be entered for the plaintiffs for $2775.67, with interest from December 20th 1864.</p> <p>“ If the court 'shall be of opinion that, under the provisions of the 94th and 97th sections of the said act, the plaintiffs are entitled to recover the tax upon the pig-iron which entered into the composition of the said 1652J§ tons of railroad iron, and also the increased tax of $1.50 upon each ton of the said 1652^- tons of railroad iron so made, then it is agreed that judgment shall be entered for the plaintiffs for the sum of $7555.38, with interest from December 20th 1864. But if the court shall be of opinion that the plaintiffs are entitled to recover the tax of $3 per ton, imposed upon 4 eastings of iron, on iron of all descriptions advanced beyond pig-iron, blooms, slabs or loops, upon which no duty has been assessed or paid, in the form of pig-iron, blooms, slabs or loops,’ in addition to the increased tax of $1.50 per ton on railroad iron, then judgment shall be entered for the plaintiffs in the sum of $8327.02, with interest, &c.”</p> <p>By section 94 of Act of Congress of June 30th 1864, Brightly!s Dig. p. 240, pi. 153, p. 244, pi. 173, it is provided: “ That upon the articles, goods, wares and merchandise hereinafter mentioned, except where otherwise provided, * * * there shall be levied, collected and paid the following duties, to be paid by the producer or manufacturer thereof, that is to say: On railroad iron a duty of $3 per ton, provided that castings of iron, and iron of all descriptions advanced beyond pig-iron, blooms, slabs or loops, upon which no duty has been assessed or paid, in the form of pig-iron, blooms, slabs or loops, in addition to the foregoing rates of iron so advanced, a duty of $3 per ton.”</p> <p>And by section 97, Id. 248, pi. 185: “Every person, firm or corporation, who shall have made any contract prior to the passage of this act, and without other provision therein for the payment of duties imposed by law enacted subsequent thereto upon articles to be delivered under such contract, is hereby authorized and empowered to add to the price thereof so much money as will be equivalent to the duty so subsequently imposed on said articles, and not previously paid by the vendee, and shall be entitled by virtue hereof to be paid, and to sue for and recover the same accordingly.”</p> <p>On the 20th of February 1866, the opinion of the court at Nisi Prius was delivered by Woodward, C. J.:—</p> <p>“The constitutionality of the 97th section of the Act of Congress of June 30th 1864, commonly called the ‘ Excise Law,’ b.eing conceded, or rather not questioned, I am of opinion that the contract of the parties, though made before the law was passed, is within the purview of the 97th section, and that the iron manufactured under that contract is subject to the excise duties imposed by that act.</p> <p>“ By the Act of July 1st 1862, railroad iron was subject to a duty of $1.50 a ton, and pig-iron, when used by the manufacturer in making rails, was, I suppose, exempted from assessment by virtue of the 73d section of that act.</p> <p>“ But by the Act of 1864, pig-iron is subject to a duty of $2 per ton, and the tax on railroad iron is raised to $3 per ton, and one of the provisoes of the 94th section (which is the section that imposes these taxes), reads as follows: ‘Provided that castings of iron, and iron of all descriptions advanced beyond pig-iron, blooms, slabs or loops, upon which no duty has been assessed or paid in the form of pig-iron, blooms, slabs or loops, shall be assessed and pay in addition to the foregoing rates of iron so advanced, a duty of three dollars per ton.’</p> <p>“ The meaning of this legislation is that pig-iron shall pay a duty of $2 the ton, and that railroad iron manufactured out of pig-iron that has paid that duty- shall itself be assessed with $3 the ton, but that railroad iron made of pig-iron that has not been assessed, shall pay $6 the ton.</p> <p>“ As there was a large amount of pig-iron on hand when the Act of 1864 was passed, which was not likely to be returned for assessment, the legislature probably meant by the proviso to tax it in the form of rails, and, as an inducement to manufacturers of rails to return their pig-iron /or assessment, the proviso makes the tax on rails something higher than it would be if duty were paid on the pigs. It takes one ton and seven twenty-fourths of a ton of pig-iron to make a ton of rails. -At $2 per ton, the pig-iron that enters into a ton of rails would pay about $2.65 “ Add the duty on the rails.....3.00</p> <p>“ And we have ....... $5.65</p> <p>“ But if the $2.65 be not paid on the pig-iron, the rails shall pay per ton......$6.00</p> <p>“ A difference of tax per ton of ... .35</p> <p>“ The plaintiffs are manufacturers both of pig-iron and railroad iron. They contracted with the defendants in February 1864 to manufacture and deliver 4000 tons of rails, of which 1652g-§ were by the terms of the contract to be delivered, and were actually delivered, after the 1st of July 1864, the date of the Act of Congress in question.</p> <p>“ These rails were manufactured out of pig-iron, which, the plaintiffs also manufactured, but whether before or after the date of the law is not ascertained in the case stated. It is admitted, however, that no duty had been paid on the pig-iron that entered into these rails, and it is earnestly argued that no duty was assessable tinder the Act of 1864, because this pig-iron was neither sold, nor consumed or used by the manufacturers. Pig-iron is undoubtedly an article of commerce, and it is equally certain that it was not sold as pig-iron in this instance. But under the 94th section of the act it was taxable if ‘ used by the manufacturers thereof.’ These are the very words of the enacting clause, and can it be doubted that a manufacturer uses his pig-iron when he converts, or, to use a stationary word, advances it into railroad iron, and then sells the rails ? Pig-iron is never used without conversion or advancement into some other form of iron.</p> <p>“ Such conversion is indeed the only use of which it is susceptible, and I hold the plaintiffs had ‘ used’ their pig-iron within the meaning of the statute, when they made rails of it.</p> <p>“ This conclusion, sufficiently supported by the words of the 94th section, is strongly corroborated by the 83d and 86th sections of the same act.</p> <p>“ Then it should have been returned for assessment, and should have paid the prescribed duty of $2 the ton, but as no duty was assessed or paid upon it, the rails manufactured out of it are within the terms of the proviso to the 94th section, and liable to ‘ pay, in addition to the foregoing rates of iron so advanced, a duty of three dollars per ton’ — that is, the rails are subject to a duty of $6 per ton.</p> <p>“ It was suggested that if the plaintiffs, through neglect of a public duty, had subjected the,defendants to a higher rate of taxation than was necessary, the plaintiffs should hear the loss. However equitable this might be, I have no power, under the case stated, to adjust the equity. I am only empowered to enter judgment for one of several fixed sums of money, according to the view I may take of the meaning of the several provisions of the statute bearing on the subject.</p> <p>“ Having endeavored to express very briefly my understanding of the statute in the particulars in question, it is apparent that judgment must be entered for the largest sum mentioned in the case stated.”</p> <p>Judgment was rendered for the plaintiffs for $8909.91, and costs.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of replevin, issued May 6th 1864, by Alfred Phipps and Virginia E. his wife, in her right, against Daniel Boyd, Jr., and Joseph H. Smile.</p> <p>On the 31st of August 1863, William C. Johnson leased to Phipps a house in West Philadelphia for $250 per annum, payable monthly. “ The said house and ground to be finished on the 10th day of September next, at which time possession will be given to Alfred Phipps; and if the house is not completed on the aforesaid date possession shall be given, and the rent shall not commence until such time that it shall be completed.”</p> <p>The premises were conveyed by Johnston to Boyd the defendant on the 24th of December 1864. Some time before May 6th 1864, Boyd distrained for $145.83, as rent due from September 10th 1863 to April 10th 1864.</p> <p>The ■ replevin having issued, Boyd as landlord, and Smile as his bailiff, avowed the taking, and alleged that the plaintiffs held the premises “ as the tenant of the defendant by virtue of a certain agreement heretofore made, reserving to the said defendant the rent of $250 for one year, payable monthly, and because a large sum, to wit, the sum of $145.83, became due and -was in arrear for the months commencing September 10th 1863, and ending April 10th 1864, &c.; for which said goods and chattels were distrained.”</p> <p>The plaintiffs pleaded non demisit, and no rent in arrear.</p> <p>On the trial, before Stroud, A. J., the defendant offered in evidence the lease to Phipps and the deed to Boyd, which were objected to by plaintiffs, because they did not correspond with the avowry, were received by the judge, and exceptions taken.</p> <p>A witness of defendant testified that plaintiffs went into the premises in August or September 1863 ; the house was then finished, but not the grounds; all was finished in January 1864. Another witness testified that Phipps, in a conversation with defendant, said he would pay the rent up to the date of the conversation, if the defendant would give him a lease for another year. The plaintiffs gave evidence to show that the house was still unfinished. They also proved that Boyd had declared that he had-loaned Johnston $2500, and taken the property as security, and that Johnston was insolvent at the date of the deed to Boyd.</p> <p>The plaintiffs submitted the following points:—</p> <p>“ 1. The allegata in the avowry in this case do not agree with the probata here, and upon that ground the plaintiffs, as the case stands, are entitled to a verdict.</p> <p>u 2. If the jury believe the evidence that the deed in this case was made to the defendant as a security for money loaned by him (defendant) to Johnston, and they find this fact from this and other evidence in the case, and that at the time of the making of said deed Johnston was insolvent, the plaintiffs are entitled to a verdict.</p> <p>“ 3. The only rent that can be recovered under any circumstances at present in this case is for four months ending April 10th 1864.”</p> <p>The court declined so to charge. The verdict was for the defendants, and the rent found to be in arrear was $97.60.</p> <p>The first three assignments of error were, the rejection of the evidence and the answer to the 1st point; the 4th and 5th assignments were the answers to the 2d and 3d points respectively.</p>

<p>1. There being in the charter of a railroad company no prescribed limit of approach towards buildings and bridges, the company may locate their roads and stations on such route and at such points as in their judgment will be beneficial to their own and the public interest.</p> <p>2. The emission of sparks from the stack of a locomotive is not in itself illegal, and the loss of property adjacent to a railroad from the sparks apart from misuse, is damnum, absque injuria.</p> <p>3. The law in conferring the right to use an element of danger, protects the person using it, except for the abuse of his privilege, but in proportion to its danger will arise the degree of caution and care he must use.</p> <p>4. Great danger demands higher vigilance and more efficient means to secure safety.</p> <p>5. It is the duty of railroad companies running their engines close to buildings, to use the utmost vigilance and foresight to avoid injury.</p> <p>6. It is the duty of companies to control their engines carefully, to adopt every known safeguard, and to avail themselves from time to time of every approved invention to lessen their danger.</p> <p>7. Questions of skill, vigilance, care and proper management in any business, are questions of fact to be referred to the jury.</p> <p>8. The degree of care having no legal standard, such care must be required as is ordinarily sufficient under similar circumstances to avoid the danger and secure the safety needed.</p> <p>9. It is the duty of railroad companies to adopt the best precautions against danger in use, and it is not sufficient for them to exercise what under circumstances of less risk would be ordinary care.</p> <p>10. The court below charged, “ if the defendants used ordinary skill in procuring a good and safe spark-catcher such as are most in use in the country and approved by experienced railroad operators and mechanics, they would not be required to use any other or greater care or skill in respect to the spark-catcher used by them.” Held, not to be error.</p> <p>11. Evidence of the practice and common use of a stack by many others in the same business is admissible on the question of the safety of the stack.</p> <p>12. If the construction of the stack was that which was best adapted for the purposes in known practical use, the duty of the company was performed.</p> <p>13. Negligence is the absence of care according to the circumstances.</p>

<p>1. A certiorari does not bring up the testimony which may have been heard below on exceptions to the report of road commissioners.</p> <p>2. An act for laying out streets directed that notice should be given to property-holders to set in their fences: “Provided, the property-owners, to whom damages have been awarded by the commissioners, shall have been duly paid the said award.” Held, that under the proviso the commissioners were authorized to assess damages.</p> <p>3. The title of an act was “ A supplement tojan act to open and straighten” certain streets in Philadelphia, and the act provided for the assessment of damages as to which there was nothing in the original act. Held, to be constitutional.</p>

<p>1. United States and state taxes on bonds are a charge on the principal of the debt although to be collected out of the interest.</p> <p>2. The clause in a mortgage by a corporation or natural person, that the payment shall be “without any deduction, defalcation or abatement for any taxes,” &c., “ whatsoever,” is a stipulation to pay the taxes on the land mortgaged, not on the debt secured.</p> <p>3. The tax levied by the United States is a tax upon the debt secured, not a tax on the debtor. The company is made the agent to collect the tax but the burden is imposed on the bondholder.</p>

<p>Certificate from Nisi Prius.</p> <p>This was a bill in equity by Thomas Baumgardner against The Big Mountain Improvement Company and William P. Jenks, President, Charles W. Trotter, William A. Atlee, Thomas Shipley and D. C. Wharton, Directors of said company, filed April 14th 1862.</p> <p>The defendants filed a joint answer August 4th; the complainants replied October 4th 1^62, and same day the bill, answer and replication were referred to Garrick Mallery, Esq., as examiner and master.</p> <p>There were numerous matters complained of in the bill, hut the appeal limited the inquiry to one question. With reference to that the bill set out that on the 6th day of December 1853 the owners of a tract of land in Northumberland county known as the “ Robert Gray tract',” “ agreed to sell and convey in fee simple to the Big Mountain Improvement Company the whole of the surface right of and in all that certain part of the tract, &c., described, &c., containing about ten acres, deed to be executed whenever the said company demand the same and comply with the covenants, &c.” * * * “ The surface right hereby granted shall not be deemed or taken to be a right granted to the said company for the purpose of laying out a town or building thereon, but only for the purpose of a coal-breaker and dirt-room for the deposit of coal-dirt;” that afterwards the whole of the tract, through sundry mesne conveyances, became vested in the complainant, and that no reservation or exception of the surface right over the before-mentioned ten acres is contained in any of the conveyances; that the company erected a breaker with the usual buildings and appurtenances on the easternmost line of the ten acre tract; that difficulties and disputes arose between the complainant and the company with respect to the other parts of the tract, and on the 10th day of February 1859, both parties agreed to “leave all matters of damages or trespass outside the ten acres,” to three arbitrators whose award was to be final. The bill further set out that at the same time it was agreed verbally between complainant and the president of the company that the complainant should erect a coal-breaker necessary for his operations on the “ Gray tract,” then contemplated by him, on the north-easternmost portion of the ten acre tract, and that for the purpose of erecting the breaker with the usual appurtenances, &c., the company should surrender to him their right to the surface of 3J acres of the north-eastern portion of the tract and that in exchange the company should have the surface right to an equal quantity of the Gray tract; that in pursuance of the agreement the complainant took possession of that portion of the 10 acre tract and erected a large and expensive breaker with the other works belonging to it, at a cost of above $16,000, and that the defendants took possession of the portion of the tract taken by them in exchange ; that the arbitrators, under the agreement, visited and examined the premises with the president and others interested in the company and the complainant, and that the complainant’s workmen were then employed in constructing his breaker, &c., on the portion of the tract surrendered to him; that the president then informed the arbitrators of the exchange which had been made and that they were not to take into consideration the occupancy of the respective partS exchanged; and-that the ai’bitrators awarded that the company pay to the complainant §1000 in full for all damages of every kind ; that the defendants soon after drove stakes to mark the lines of the portion taken by them in exchange ; that the complainant, on the 9th of February 1859, entered into an agreement with John J. and William H. Douty for mining coal on the Gray tract, that they were to have the use of the breaker, which it was agreed should be ready for use against the 1st of July 1859, at which time the lessees commenced mining on the tract; the breaker was to be kept in order by the complainant.</p> <p>The bill further set out that difficulties again arising between the complainant and defendants, the parties met in Philadelphia about the 20th of December 1859 for the purpose of adjusting them, and then agreed, amongst other things, that the §1000 awarded by the arbitrators should be paid and that a conveyance for the surface rights exchanged should at once be drawn and executed.; that subsequently the defendants submitted to the complainant the draft of an agreement as containing the matters agreed upon in Philadelphia, including a stipulation to pay the §1000 and the execution of the deeds of exchange, to which the complainant refused to accede as not containing the stipulations arranged in Philadelphia and as implying in its recital that the breaker had been -erected inadvertently and not in pursuance of an agreement; that soon after the 21st of March 1860, a surveyor, employed by the defendants for the purpose, made a survey of the land exchanged and marked the respective portions distinctively on the plot, and from this plot the defendants’ attorney prepared deeds purporting to convey to the parties their respective portions as indicated on the plot; that there were prepared by the same attorney releases to be executed by certain mortgagees on complainant’s land and that the complainant procured the execution of the releases; that afterwards the breaker of the defendants was burned and they built another more than 1000 feet distant from it, and that in consequence the land which they were to take in exchange having become valueless they refused to execute the deed of exchange, and on the 6th of July 1860 brought an action of ejectment against the complainant and his lessees to recover the possession of the land on which his coal-breaker is erected and for which - he was, to receive a deed of exchange from the company, which ejectment is still pending. The bill prayed that the defendants might be restrained from proceeding in the action of ejectment, as well as for other relief.</p> <p>The defendants answered that the complainant is not' entitled to relief against the ejectment, because he can avail himself of every defence in the court of law which he can set up in a court of equity, and as the court of law has already jurisdiction of the subject-matter, he is not entitled to transfer the case from that court to the Supreme Court. They deny the parol agreement of exchange, and that they gave the complainant permission to erect his breaker on the ten acre tract, or that the complainant took possession in pursuance of such agreement as he has alleged, or that they took possession of any other land in pursuance of such agreement; they admit they visited the premises with the arbitrators, and that the complainant’s workmen were then constructing the breaker, but deny that they had surrendered the surface right, or that Jenks informed the arbitrators of any exchange of land and directed them to confine themselves to the damage, if any, of the trespasses in the location of the drift road, &c.; and Jenks, one of the defendants, states that he then remonstrated with the complainant against constructing his breaker on that location, averring that he had no right to construct it; that the complainant averred that he owned the whole ten acres under a conveyance from the owners of the Gray tract. The answer denies that any stakes were driven to indicate any land exchanged; it avers that complainant’s breaker was erected after notice that he was erecting it on defendant’s property, and that they knew nothing of his agreement with his lessees; that the agreement which complainant refused to sign was in accordance with the arrangements in Philadelphia; that the complainant was not in a condition in regard to his title to carry out his arrangements; that in consequence of the complainant’s refusal to convey the land the defendants were compelled to select another site for their breaker.</p> <p>To understand the case- on the points considered in the Supreme Court, a statement of the evidence, as reported by the Master, is necessary. Pie reports:—</p> <p>“The first testimony upon this point” (the exchange) “related to the time when the arbitrators met, who were appointed under an agreement dated March 11th 1859, to whom were submitted all matters in variance between the parties. Mr. Bird, the respondent’s witness, speaks of this matter, first, in order of time : that before they left Shamokin, on the day of the arbitration, the complainant said to Mr. Jenks, or Mr.. Trotter, ‘ That, for what he wanted to take of the ten acres, to put his breaker on, he would give them other land that would suit them better, and he proposed to give something more in quantity than he wanted to take of the ten acre surface right.’ Mr. Jenks said to him that, if he could do that, they would be willing to make the exchange, and they agreed then that that should be the understanding; and it was to be left to Mr. Yan Gaskin to select; and if Mr. Yan Gaskin, as the agent of the company, was of opinion that the land that he could give them would suit them better, or as well, he would agree to make the exchange ; and the arbitrators and Mr. Jenks and several others went from the town up to the spot where he was putting up his breaker, and then Mr. Jenks said to the arbitrators, ‘ the matter of the ten acre surface right you need have nothing to do with ; Mr. Baumgardner says he will give us other land that will suit us better, and we have agreed to take it, and it is to be left to Van Gaskin to select; and if he is of opinion that he can give us land that will answer as well, or better, we will make the exchange, and you arbitrators need not have anything to do with the ten acre surface right. We intend to make the exchange. That was after we got up to the place and the arbitrators were going to make up matters to give their verdict.’ He. also states that Baumgardner had commenced his breaker previously to that time, and was at work at it at that time.</p> <p>“ Mr. Fisk, one of the arbitrators, testified that when they arrived at a point where the line of the Gray tract crosses the Big Mountain Railroad, which point was designated by a notch cut in one of the cross-ties of the railroad, and also painted upon a post or stump of a bush or tree, Mr. Jenks called our attention to that line, and, as nearly as I can remember, his language was this: ‘Now, gentlemen, you have nothing to do with this matter of surface right. That has been arranged. That is not the question befo.re you. Mr. Baumgardner and myself have arranged that, and Mr. Baumgardner, with our superintendent, Mr. Van Gaskin, will go on and stake out the ground, and we are to make an exchange with him. We are to give him the surface right below for his breaker and improvements, and we are to take other ground. But that is all agreed upon. You have nothing to do with that.’ He also states that the breaker of Baumgardner was then being built. He saw the excavation, and the men were at work putting in the foundation-walls of the present breaker of Mr. Baumgardner: He says he heard no objection to the building the breaker on the other land. A satisfaction was expressed by Mr. Jenks that the matter had been arranged so that Mr. Baumgardner had room for his breaker and improvements, and they had room for their dirt. He confirms the same statement in his cross-examination.</p> <p>“William A. Cherington, another arbitrator, concurs in the statement made by Mr. Fisk. In his cross-examination, in answer to the question whether it was left open between Mr. Van Gaskin and Baumgardner to select the proper grounds for the purpose of making the exchange afterwards, he says, Not as to the matter of selection as to the matter of its staking off. The matter of selection had been agreed upon, as I understood. Mr. Baumgardner and Mr. Van Gaskin tvere to have it staked off afterwards.</p> <p>“ Mr. Van Gaskin, the agent of the company, says the first he recollects about anything being stated was before we got to the Henry Clay Breaker, as we were goin^ up from Shamokin, Mr. Jenks remarked that Mr. Baumgardner was laying his sideing on the embankment of the Big Mountain, on their road-bed. Mr. Baumgardner replied, ‘ the ground is mine ; it is all mine.’ Then when we got up to where they were at work about the breaker foundation, they were stating to the arbitrators what they would have to take into consideration. And I recollect Mr. Jenks made a remark something of this nature, as near as I can recollect, that the exchange of the ground they had nothing to do with; that Mr. Baumgardner and he had had a talk, and they would fix that matter without giving them any trouble about it. He says that is the substance of the remark to the arbitrators. He thinks it was at the same time that Mr. Baumgardner asked Mr. Jenks where he would have it. He said,{I don’t know. I leave it to my superintendent to be the judge. He knows better'what we want.’ And it was agreed that I should make choice of the piece of ground in lieu of the piece they were building their breaker and putting their lateral railroad on.”</p> <p>The master reported as to the parol contract of exchange:—</p> <p>“ I cannot find any parol contract for the exchange of the surface right that will bring the case within the principles laid down in the decisions. * * * The alleged contract did not describe the property to be exchanged, and was too uncertain to be enforced in equity, and possession, the only evidence of part performance, had been taken by both parties before the date of the alleged contract.”</p> <p>He also reported that none of the unexecuted papers, as contended by the complainant, were written contracts.</p> <p>The complainant contended before the master that the defendants were equitably estopped from interfering with him in the enjoyment of the breaker and the improvements connected with it. On this question he reported:—</p> <p>“ I shall not take time to refer to the authorities upon this question, but state that from all the evidence in the case, it appears to me to be inequitable that defendants should take from complainant his improvements because there has been a subsequent disagreement between the parties concerning the ground which defendants were to receive in exchange, or an omission by Mr. Yan Gaskin to make the selection.</p> <p>“ If the complainant refused to comply with the contract, he would be liable to an action for damages, in which compensation c'ould be recovered by' the defendants.”</p> <p>He decided finally:—</p> <p>1. That no parol contract for exchange of the surface right has been proved and so far executed that it can be enforced in equity.</p> <p>2. That there is no written contract containing a description of the property proved, so as to take the case out of the statute.</p> <p>* »•****</p> <p>4. That, under the facts of this case, I find that defendants are estopped in equity from claiming the surface right on which complainant’s improvements are erected.</p> <p>10. That the action of ejectment is not the proper remedy in this case, and if it could be maintained, the remedy would not be as effectual as a decree in equity.</p> <p>11. That an injunction be issued, restraining the defendants from prosecuting the pending ejectment, or from instituting any other action for the recovery of the same premises.</p> <p>To this report exceptions were filed, which were overruled by Mr. Justice Strong, and the report confirmed.</p> <p>And it was further decreed that the defendant, the Big Mountain Improvement Company, and all persons claiming under said company, be perpetually enjoined from further prosecuting the action of ejectment pending in the Ooui’t of Common Pleas of Northumberland county, against the defendant and his title, &c. The defendants appealed.</p>

This was an attachment-execution, issued May 10th 1864, by The Commercial Mutual Insurance Company against Osborn Conrad, on a judgment for $676.50, recovered March 11th 1859, on a note for $600. The Bank of Penn Township were garnishees. On the 16th of June 1865, the garnishees answered, admitting that they had on deposit to the credit of the defendant $1083.99.

<p>1. The implied contract of a railway company to carry a passenger safely includes the duty of giving him a reasonable opportunity to alight in safety.</p> <p>2. At law, a mother has no implied right to the services of her minor child, she not being bound for his maintenance.</p> <p>3. The relation of mistress and servant can be constituted between mother and child, only as it may be done between strangers in blood, except that less evidence might establish it.</p> <p>4. The mother’s right to an action for injury to her child cannot be rested on her liability for his support under the poor laws.</p> <p>5. Actions by parents or masters for seduction, &c., per quod servitium amisit, are founded in pure wrong upon the rights of the master in tho person of the servant, for which trespass or case will lie.</p> <p>6. i'or torts springing from contract which consist in a mere omission of a contract duty, no legal remedy exists except by an action on the case, which must be by the party injured and cannot be by the master.</p> <p>7. A minor may contract for his own benefit, and as this power is limited to his necessities and advantages, his contracts cannot enure to the benefit of another.</p> <p>8. A minor, having no father, but living with his mother, and by his labor contributing to her support, was a passenger on a railway car and paid his fare. He was injured by the negligence of the company’s servants, and was provided with medical attendance, nursed and supported by his mother: Held, that the contract to carry safely was with the minor; that the mother was a stranger to it, and she could not recover fo^the_injury.</p>

This was a scire facias in a foreign attachment, in which Mark Hunter and John A. Chowne were plaintiffs and The Albert Freestone Company defendants and Philip Dougherty was garnishee. The foreign attachment was issued June 21st 1861, and judgment was obtained against the defendants. On the 10th of May 1862 the scire facias was issued against the garnishee, who pleaded “ nulla bona.” The defendants were a corporation of New York, engaged in quarrying and selling stone.

<p>Appeal from the decree of the Orphans’ Court of Philadelphia, in the matter of the distribution of the estate of Jacob Large, deceased.</p> <p>Abraham Ketler died in October 1852 without issue, but leaving a widow, Catharine. By his will he gave all his estate, real and personal, to his wife for life, and after her death, “ I direct and appoint all my said estate, real and1 personal, to be divided into two equal shares, as nearly as may be, and one equal purpart and share thereof, I give, devise and bequeath to Jacob Large, son of Jesse Large, and to his heirs and assigns to and for his and their only proper use and behoof for ever.</p> <p>“ Item. I give, devise and bequeath the other purpart or share of my said estate, to Charles Large, son of Jesse Large, and to his heirs and assigns to and for his and their only proper use and benefit for ever.”</p> <p>Charles Large died before the testator, leaving a minor child, Charles A. Large, of whom Abraham Margin was guardian.</p> <p>On the 15th of April 1853 Catharine Ketler, the widow of the testator, applied to the Orphans’ Court, setting forth that the real estate devised, in which she had a life interest, “ although of groat value, was almost wholly unproductive and out of repair, that it did not yield a sufficient support and maintenance for her,” and praying the court to order it to be sold at public sale, agreeably to the provisions of the 2d and 3d clauses of the 1st section of the Act of Assembly of the 3d of April 1851, entitled ‘ An act relating to Orphans’ Courts, &c.’ To this petition Jacob Large and Abraham Martin, as guardian of Charles Large, by writing attached, gave their consent.</p> <p>The court granted the'petition, and appointed a trustee to make the sale. The sale was made and confirmed June 3d 1853.</p> <p>Jacob Large died intestate and without issue December 20th 1856, leaving a widow, Thomasine, and his father, Jésse Large.</p> <p>In the distribution of the fund arising from the sale of this real estate, $6942.56 were awarded Jacob Large’s administrators. Thomasine Large, the widow of Jacob Large, died October 12th 1863, leaving a will, of which John Roberts, Thomas J. Roberts and Daniel R. Harper are the executors, and giving the residue of her estate to her children, Susannah Harper, and the said John and Thomas. The widow of Abraham Ketler died shortly afterwards.</p> <p>The administrators, &c., of Jacob Large having settled their account, it was referred to William W. Ledyard, Esq., for adjustment and distribution: the question before him was, how the fund arising from the sale of Abraham Ketler’s real estate should be distributed.</p> <p>The claimants were the executors, &c., of Thomasine Large, deceased, who claimed one-half of the fund under her will, alleging that the real estate sold was. converted into personalty ; and David K. Large and others, executors of Jesse Large, the father of Jacob Large, who claimed that the money arising from the sale passed to Jacob as real estate ; that his widow took nothing but a life estate in it, and that therefore nothing passed by her will, and they were entitled to the whole of it.</p> <p>The auditor was of opinion that the sale worked a conversion, and distributed one half the fund to the executors of Thomasine Large, and the other half to the executors of Jesse Large.</p> <p>On exceptions the Orphans’ Court confirmed the report of the auditor. The executors of Jesse Large appealed, and assigned this decree for error.</p>

<p>In a scire facias on a mortgage the defendant by her affidavit of defence averred that she never was indebted to the mortgagee; that she gave the mortgage on representations and solicitations of her father, stating them,— which were not true; that the mortgage was given in mistake. There was no allegation that the knowledge of these things had been traced to the mortgagee. Held, not to be a sufficient affidavit of defence.</p>

<p>Error to the Court of Common Pleas of Philadelphia.</p> <p>This was a proceeding by J. Alexander Simpson, a purchaser under-an Orphans’ Court sale of real estate, against John Thornton, to obtain possession of the premises purchased. Eliza Flaherty, being seised of the real estate in question, died intestate.</p> <p>Proceedings for the partition of the real estate were commenced in the Orphans’ Court, which resulted in a sale to the plaintiff by the administrator by order of the court, which was confirmed March 2d 1866. On the 3d of March the plaintiff gave notice to the tenant in possession, the defendant, to deliver possession in three months. The defendant not having removed, as required by the notice, the plaintiff commenced proceedings for his removal before Aldermen John A. Hurley and Philip Dallas. A sheriff’s inquisition was accordingly had, and upon their finding the aider-men gave judgment that the defendant make restitution of the premises, &c.</p> <p>The defendant took out a certiorari to remove the proceedings to the Court of Common Pleas, and in that court filed the following exceptions:—</p> <p>1. The only Act of Assembly giving to purchasers of real estate sold under orders of the Orphans’ Court, the right to proceed to obtain possession of the purchased premises in the manner provided in relation to purchasers at sheriff’s sales, is the Act of 9th of April 1849, and that act has no application to cases of sales made by order of the Orphans’ Court in proceedings in partition.</p> <p>2. If the said act is applicable to this case, it is unconstitutional, because it impairs the obligation of a contract.</p> <p>3. A sale under proceedings in partition, whether at common law, by order of the Orphans’ Court or in equity by Master in Chancery, is a proceeding inter partes, and does not affect existing leases.</p> <p>4. A sale under proceedings in partition passes the title subject to the rights of existing lessees, who have an estate in the land, which cannot be divested by such sale, whether the lessee held under the decedent or the heirs.</p> <p>The Court of Common Pleas reversed the proceedings before the aldermen, and the plaintiff took a writ of error, assigning this reversal for error.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of assumpsit, brought to December Term 1865 by James R. Cummins against Gr. B. Earp, to recover commissions for the sale of real estate.</p> <p>There was evidence that the real estate was in the hands of the plaintiff for sale ; that he offered it to various customers by telling them of it and by advertising it in his catalogues and in the newspapers ; he also had a photograph of the house in his office and a memorandum of it in his book; that Richard Young called several times at his office, and that in an interview between the plaintiff and defendant, the plaintiff' told defendant he thought he could be of use to him in effecting a sale to Young ; that the plaintiff had the property for sale two or three years before the fall of 1864 ; that Young went to see the property and returned saying that he did not like it. Young himself testified that the plaintiff brought the place to his notice, and he went to see it, but did not like it, abandoned all idea of buying it, and so informed the plaintiff about January 1865; that afterwards he was induced by-friends whom he was visiting in the neighborhood to look at it, and commenced a negotiation with the defendant which resulted in his buying it for $14,500. During the negotiation the defendant said he ought to have $15,000 because he would have to pay commissions; Young told him he would not, that Mr. Cummins had nothing to do with the sale, that he did not know Cummins in the transaction. He also testified, “I say now I was not induced to purchase the property by Mr. Cummins * * * I negotiated with Mr. Earp, and bought the place from him; I was not influenced by Mr. Cummins at all in making this purchase.”</p> <p>The plaintiff gave in evidence also the following letters:—</p> <p>“Mr. James R. Cummins,</p> <p>“ Media.</p> <p>“ Dear Sir: — L want to rent a comfortable house in Delaware county, near Darby, if possible. Have you any to rent ? 'Please send catalogue of Delaware county farms for sale. I also wish to buy a small place in the same neighborhood.</p> <p>“ Richard Young.</p> <p>“ Philadelphia, May 11th 1864.”</p> <p>“ Philadelphia, July 26th 1865.</p> <p>“Mr. James R. Cummins.</p> <p>“Dear Sir: — I am very anxious to move to Philadelphia this fall, and I wish you to try and sell my place in Delaware county— the price that I have been holding it at is $16,000. I am willing to take now, if sold this fall, $15,000 — that is the lowest figure. Do all that you can, and sell it for me.</p> <p>“ Yours, very respectfully</p> <p>“ G. Bake well Earp.”</p> <p>“ Oak Glen, October 4th 1865.</p> <p>“ James R. Cummins, Esq.</p> <p>“ Dear Sir: — I have sold my wife’s place to Richard Young, Esq., of Philadelphia. You will therefore consider it.as withdrawn, and no longer for sale by you.</p> <p>“ As you were in no way instrumental in selling it, she does not expect to pay you any commission, and you could not be serious in supposing that she would do so.</p> <p>“Very respectfully,</p> <p>“ G. Bakewell Earp.”</p> <p>The court (Sharswood, P. J.) charged:—</p> <p>“ The agency must be proved. It is the sole business of the real estate broker to bring buyer and seller together. People who want to buy property look at the advertisements of real estate brokers. It has been decided that if they bring buyer and seller together it is not necessary they should negotiate the sale. A mere seeing it in the catalogue of the broker, or in his advertisements, is sufficient, provided a sale takes place in consequence.”</p> <p>There was a verdict for the plaintiff for $149.64.</p> <p>The case being removed by writ of error, the charge as above quoted was assigned for error.</p>

<p>1. The defendant gave two negotiable notes to an insurance company for premiums; the notes passed into the hands of a bank who endorsed them to the plaintiff, another bank, in payment of a balance. Afterwards but before the notes were due, the policies were cancelled. In a suit by the endorsee these facts were not competent evidence.</p> <p>2. If otherwise evidence, they would have been no defence without notice of failure of consideration, the notes being negotiable and not due when credited to the account of the endorsing bank.</p> <p>3. The defendant offered evidence of a foreign attachment against the insurance company in which the notes were attached in his hands and a judgment recovered against him as garnishee which he had paid. Held, that the .evidence was inadmissible as res inter alios aeta.</p> <p>4. The garnishee might have protected himself against a double liability by notifying the holder of the notes of the attachment and calling upon him to interplead, or if he could not ascertain the holder he might have shown the nature of the paper and its actual transfer, which would have been an answer to the attaching creditor. Per Thompson, J.</p>

In Equity. These were two hills in equity. In the first John Sparhawk and others were the plaintiffs and The Union. Passenger Railway of Philadelphia the defendants. In the second, Levi Kenton was the plaintiff and the same company and Jacob Ridgway and others, directors of the company, were defendants.

<p>Appeal from the decree of the Supreme Court at Nisi Prius.</p> <p>This was a bill by William M. Swain and Arunah S. Abell, against The Fidelity Insurance, Trust and Safe Deposit Company, brought in November 1866.</p> <p>The bill was for the specific performance of a contract, dated the 4th of October 1866, by which the plaintiffs agreed forthwith to convey to the defendants “ in fee simple a good and sufficient title, clear of all incumbrances,” to a lot and building, 311 Chestnut street, Philadelphia, for the consideration of $85,000.</p> <p>The answer admitted the contract, but alleged that the complainants could not make a good title for the premises, clear of encumbrance.</p> <p>At the hearing, the bill was referred to a master, who reported, “ That, on the 21st day of May 1847, William M. Swain, Arunah S. Abell, and Azariah PI. Simmons were the owners in fee as tenants in common of the premises in question: that Simmons died about the 9th day of December 1855, having first made his will, by which, after the bequest of certain legacies, he devised the residue of his estate to his children, namely: Thomas Edgar Simmons (the child of Caroline Simmons), Charles Franklin Simmons and William Henry Simmons (children of Mary Simmons), Albert H. Simmons and Frank Y. Simmons (children of Frances Ettling), in equal shares, in fee; and he appointed the said Frances Ettling guardian of the two minors last named; and declared that the profits of the said children’s estate should be applied by her, as she should think proper, without any accountability, until they should attain the age of twenty-one years; and if either, or both, should die before that age, then such dying child’s share should vest in the said Frances Ettling, in fee.” Pie appointed Arunah S. Abell, William M. Swain and William P. Preston, his executors, and gave them “ all the power, legal and equitable, which may be necessary for the purpose of carrying into full effect the trust reposed in them, and of enabling them to make all conveyances, execute all deeds and other instruments, and do whatever else ' may he necessary for the purpose of carrying this will into full legal and equitable execution.”</p> <p>Before the suit in partition, hereafter mentioned, F. V. Simmons died, under twenty-one years, and his share vested in his mother, Frances Ettling.</p> <p>To March Term 1859 of the District Court of Philadelphia, Arunah S. Abell sued out a summons, in partition, against William M. Swain, Arunah S. Abell and William P. Preston, executors, &c., of Azariah PI. Simmons, William M. Swain, in his own right; T. E. Simmons, by his mother and next friend Nancy C. Simmons; O. F. Simmons and W. H. Simmons, by their mother and next friend Mary Simmons; and A. PI. Simmons, by his mother and next friend Frances Ettling, and Frances Ettling in her own right; C. F. Simmons, W. H. Simmons, and A. H. Simmons being then minors under the age of fourteen years, and T. E. Simmons being a. minor, above fourteen years, neither of them having guardians.</p> <p>The summons was not served by the sheriff upon any of the said parties ; but service was accepted as follows: by Plenry M. Phillips, Esq., attorney for T. E. Simmons by his mother and next friend Mary C. Simmons ; for A. H. Simmons, by his mother and next friend Frances Ettling; for Frances Ettling ; by William M. Swain, for himself and for the executors of the will of Azariah Simmons; and by Mary Simmons, as mother and next friend of C. F. and W. H. Simmons.</p> <p>The defendants, Mary Simmons, as mother and next friend of C. F. and W. PI. Simmons; Frances Ettling, for herself and as mother and next friend of A. H. Simmons; and Nancy C. Simmons, mother and next fi'iend of T. E. Simmons, by their attorney, Plenry M. Phillips, Esq.; and W. M. Swain, for himself and for the executors of Simmons, entered pleas of confession.</p> <p>On the 26th March 1859, a judgment quod partitio fiat was entered; and in due course a breve de partitione fatienda, to which the sheriff returned that the premises could not be parted and divided, and that the same was valued by the inquest at $100,000. The parties declined to take the premises at the valuation, and on the 7th day of November 1859, an order of s.ale was issued, and they were sold to William M. Swain and Arunah S. Abell for $46,600, which was the full value at the time of the sale.</p> <p>The purchase-money was distributed by the sheriff to William M. Swain; to A. S. Abell; to Mary Simmons, as widow of Azariah H. Simmons; O. F. Simmons and W. H. Simmons, minor children of A. H. Simmons, by their attorney, Samuel Hood, Esq.; to Frances Ettling, guardian of A. H. Simmons ; T. E. Simmons and Frances Ettling, by their attorney, H. M. Phillips, Esq.</p> <p>In January 1860, the Orphans’ Court of Philadelphia appointed Mary Simmons guardian for C. F. Simmons and W. H. Simmons, and their share of the purchase-money was paid to her. T. E. Simmons is now of age, and it was in evidence that he had admitted that he had received his share of the proceeds of the sale shortly after he became of age.</p> <p>William M. Swain and Arunah S. Abell have been in possession of the premises ever since the sale and conveyance by the sheriff to them.</p> <p>The objections made to the sufficiency of the title were :</p> <p>1. That the complainants were executors and trustees under the will of Azariah H. Simmons, and were therefore not competent to purchase the premises at the sale made by the sheriff under the proceedings in partition, especially as the purchase seems to have been made for an inadequate price.</p> <p>2. That the minor children of Azariah H. Simmons were not parties to the suit in partition, no guardians ad litem, having been appointed, nor others, either by testamentary appointment or by the Orphans’ Court.</p> <p>The master reported in conclusion that the complainants were able to make a good title in fee to the premises.</p> <p>The report was confirmed pro formd at Nisi Prius, and a decree entered for the complainants, from which the defendants appealed.</p>

<p>Error to the Court of Common Pleas of Berks county.</p> <p>This was an action of assumpsit, commenced August 13th 1863, by Samuel Deibert and William Koch, administrators, &c., of John D. Deibert, deceased, against Daniel B. Fisher.</p> <p>The cause of action was the following note:—</p> <p>“ Two years after date I promise to pay John D. Deibert, or order, two thousand seven hundred and thirty-seven dollars and fifty cents, without defalcation, for value received. Leesport, Berks county, Pa., March 28th 1861.</p> <p>$2737.50. Daniel B. Fisher.”</p> <p>Witness: C. Tower.</p> <p>The plaintiff on the trial having given the note in evidence, rested.</p> <p>The defendant then gave in evidence the following agreement:—</p> <p>“ It is understood and agreed by and between Daniel B. Fisher and John D. Deibert as follows :</p> <p>“1. That, if within two years from this date, said Fisher shall sell any portion of the interest now owned by him in the certain twenty-one tracts of land, one undivided thirty-second part of which said Deibert has, by deed of this date, conveyed to him, then he shall, out of the proceeds of such sale, either pay said Deibert or give him such paper as he receives from the buyer or buyers, to he endorsed also by said Fisher, to be applied by Deibert on said Fisher’s note for two thousand seven hundred and thirty-seven dollars and fifty cents, payable two years from this day, given by Fisher to Deibert in part payment of the purchase-money mentioned in said deed, and said Fisher shall also from the date of any such sale by him, allow said Deibert such rate of interest, if any, as he himself shall be allowed by the purchaser or purchasers from him.</p> <p>“ 2. That said Fisher shall repay to said Deibert the sum of fifty dollars, heretofore paid by Deibert, as part of a retaining fee to William M. Meredith, Esq., of Philadelphia, as soon as, and ■whenever he, said Fisher, can and shall receive the same from the other persons, or some of them, who are interested in the same twenty-one tracts of land.</p> <p>“ 3. That said Deibert shall keep in his own hands, and not transfer or pass away to any person whatever, the said note for two thousand seven hundred and thirty-seven dollars and fifty cents, above mentioned, during the two years it has to run to maturity.</p> <p>“ Dated March 28tb 1861. Daniel B. Fisher,</p> <p>John D. Deibert.”</p> <p>They also proved that on the 18th of February 1863, Fisher sold an interest in the twenty-one tracts of land mentioned in the agreement, to John A. Beitenman, for $2737.50, for which four notes of equal amount payable in two, three, four and five years, respectively, were given.</p> <p>These notes were tendered to the administrators of Deibert before suit brought, and within two years from the date of the contract, and were refused.</p> <p>The defendants took the deposition of O. Tower, Esq., who testified: “ Fisher and Deibert together told me what they had agreed upon and asked me to put their agreement in writing. I did so, and read the draft to them as soon as I had made it. They said it was right, and left my office for awhile until two copies could be made for them to execute. They came back to execute the copies.”</p> <p>He also stated in his deposition: “ It was an unusual contract, and for fear they did not both understand it, or the effect of it, I said, ‘ I suppose, gentlemen, you understand this paper. It gives Mr. Fisher,’ said I to Mr. Deibert, £ the power to sell the land for any price he pleases, and for cash or on time, and on just such time as he thinks proper, and with interest or without interest just as he pleases, and if he sells on time, you are to take from him just such paper as he gets,’ I then said,£ Do you both underStand it ? ’ Fisher said £ Yes.’ Deibert said, £ I do understand it so.’ ”</p> <p>The latter part of the deposition was objected to, rejected by the court and an exception taken.</p> <p>The court (Woodward, P. J.) charged the jury:—</p> <p>££ The question presented for disposition here arises out of the construction of the contract between John D. Deibert and Daniel B. Fisher, which has been given in evidence. It is claimed on the part of the defendant that, under the terms of that contract, he had the right to apply the full face of the notes which he received from John A. Beitenman, on' the 18th of February 1863, upon the note which he had given to Deibert on the 28th day of March 1861. The effect of such an application would be to satisfy the debt for which the plaintiffs have brought suit. In the opinion of the court, the contract is not capable of the construction for which the defendant contends. At the date of the notes of Beitenman, the actual money value was something over $2150, while the amount due upon the note to Deibert was, the whole sum specified in it, subject only to discount for about forty days. ■To justify the claim of the defendant, the language of the contract ought to be express and unequivocal, or the intendment from it should be imperative and direct. There is nothing in the terms of this contract inconsistent with the claim which is made by the plaintiffs. The money value of the notes of Beitenman, at the time they were given, should be deducted from the money value of the note from Fisher to Deibert at the same time, and for the balance, with interest from the 28th of March 1861, the plaintiffs .are entitled to a verdict.”</p> <p>There was a verdict for the plaintiffs for $525.76.</p> <p>The errors assigned were, rejecting the portion of Mr. Tower’s deposition, which was objected to ; and the charge of the court.</p>

Appeal by The Pennsylvania Company for Insurance on Lives, &c., from the decree of the Court of Common Pleas of Philadelphia, in the matter of the estate of Potter & Page, assigned for the benefit of creditors. Samuel Potter and William Page, trading in Philadelphia as Potter & Page, and in London as Samuel Potter & Co., made an assignment for the benefit' of their creditors, on the 28th of September 1811, to Paschall Hollingsworth and Thomas Astley.

<p>Appeal by J. S. Price, administrator, &e., of Hiram Taylor, deceased, from the decree of the Court of Common Pleas of Chester county, distributing the estate of John M. Jordan.</p> <p>Adam Siter, of Chester county, died in 1799, intestate, leaving, amongst other children, a daughter Ann, of whom Edward Siter and Dcvault Beaver were appointed guardians in 1808. She afterwards married John M. Jordan. Of this marriage one child, Andrew Mitchell Jordan, was born on the 3d of August 1817. On the 23d of October 1817 John M. Jordan alone executed the following instrument:—</p> <p>“ Know all men by these presents, that I, John M. Jordan, late of Blockley township, Philadelphia county, and state of Pennsylvania, do hereby acknowledge to have received of Edward Siter, of Radnor township, Delaware county, and Devault Beaver, of Tredyffrin township, Chester county, both of the state aforesaid, guardians duly appointed for the minor children of Adam Siter, deceased, the sum of three thousand two hundred and seventy-one dollars and ninety-two cents; in consideration whereof, and for the love and regard which I have and bear toward my wife Ann and child Mitchell Jordan, together with other good causes me thereunto moving, do hereby and by these presents assign, transfer, set over, convey and dispose of all my right, title, claim and demand whatsoever, of, in and to the residue of my share, which I claim through my wife, out of the estate of my late father-in-law, Adam Siter, deceased, together also with my mother-in-law’s dower after her decease (excepting and reserving only as is hereinafter reserved and excepted), unto Edward Siter and Devault Beaver, hereinbefore mentioned, in trust and for the uses and purposes as followeth, that is to say: the aforesaid Edward Siter and Devault Beaver, for the trust and confidence placed in them, do hereby bind themselves, their heirs, executors and administrators, to pay the interest annually arising from the residue of the aforesaid share and dower, unto my wife Ann Jordan, for her use and support, as also for bringing up and supporting our son Mitchell, for and during the natural life of the said Ann, and after her decease, to our .said son Mitchell, if he should be of age at the decease of the mother, or as soon as he arrives to the age of twenty-one years, the principal ; and for the better securing the residue of the aforesaid share, for the uses and purposes hereinbefore mentioned, I do hereby, for myself, my executors and administrators, assign, transfer, convey and dispose of the same unto the aforesaid Edward Siter and Devault Beaver, their heirs, executors and administrators, in trust and for the uses and purposes hereinbefore mentioned.”</p> <p>After the execution of this deed, John M. Jordan, who was an intemperate man, and had squandered a portion of his wife’s estate, deserted her, and was not again heard of. Upon his death she manned Hiram Taylor, about 1825.</p> <p>After his marriage, Taylor questioned the validity of the deed, and endeavored to recover the trust-money, on the ground that the estate of his wife consisted, when the deed was made, of choses in action, and had not been reduced into possession by her former husband.</p> <p>The question was, whether the deed of trust passed the interest of the wife, and entitled the trustees to retain it for the purposes of the trust. The Supreme Court, in the case of Siter and Another, Guardians of Jordan, 4 Bawle 468, decided that the deed passed the estate to the trustees upon the trusts declared in it.</p> <p>Andrew M. Jordan, the son of. Mrs. Taylor, resided with her and her husband in Chester county, until 1835, when they removed to Maryland. In the summer of 1838 A. M. Jordan was studying medicine in Montgomery county, Penna., and in the winter of 1838-39, and part of the next winter, he was in Philadelphia, for the purpose of attending medical lectures. In the winter of 1838-39 he had fallen into habits of intemperance, being then nearly twenty-one years of age. His guardian, Edward Siter, furnished him money for his necessary expenses. His conduct during that time was very bad,- — -distux-bing the peace of the neighborhood with'riotous companions at night; intoxicated almost all the time, and entirely reckless in the expenditure of money. The importunate remonstrances of his guardian and other friends were in vain. He endeavored to induce his guardian to purchase his reversionary interest in the trust estate, and failing there, was making efforts to sell it to others.</p> <p>Mr. Siter, learning that he was making arrangements for the sale of his expectancy, on the 3d of January 1839 wrote to Mrs. Taylor, Jordan’s mother, who was his sister, informing her of his course since he had gone to Philadelphia, of his request that he, Mr. Siter, would buy his right under the deed of trust, and in conclusion saying: “ This day I received information that, he had applied to an attorney to see if he could not devise some way whereby he could dispose of his right. I called on him and informed him of the contents of the deed of trust, and I find that he has those bad characters with him who are endeavoring to have it arranged and buy it for a mere song. Therefore I presume he will dispose of his right, and if it is to be sacrificed I think that you and Hiram had better have it than any person else, and I would recommend that you would lose no time in the matter, but come as soon as possible, prepared to do something in the case. Those persons, who he does associate with, will take every advantage of him, and the money that they ought to give him they would take from him again. I did not think he would have so far forgotten himself as to go to sell his right for a mere song. He informed me that he had been down to see you. I would say much more, but the paper is now full, and must conclude by earnestly requesting your immediate attention to the subject, and I will retard as much as possible him disposing of his right.”</p> <p>On the night of the 11th of January, Jordan was engaged in a brawl in the streets of Philadelphia, was arrested by the police, taken to prison and detained till next morning, when he was brought before the mayor, fined and discharged.</p> <p>He was taken by Taylor, immediately after his discharge, to "West Chester, and Taylor went to his own counsel in regard to the transferring of Jordan’s interest in the trust fund to him. Mrs. Taylor was not at that time in West Chester; and on that day, January 12th 1839, Jordan, in consideration of $300, the receipt of which was acknowledged in the deed, “and divers other causes and considerations him thereunto moving,” transferred to Taylor his whole interest in the trust fund, then about $5600.</p> <p>The counsel testified that Mr. Taylor stated to him that Jordan had been guilty of excesses in. drink, that his mother was anxious about him, and supposed that if he got this money it would not be of any service to him, and that she was anxious to have the matter arranged.</p> <p>He testified further that this- statement was not made in the presence of Jordan; that the two men called at his office, and that he received the instructions for the deed from the mouth of Mr. Taylor; that it was read to the parties, and signed in his presence, and acknowledged before Justice Fleming ; that he had no recollection of anything the young man said or whether he said anything; that his mood seemed to be that of a taciturn man ; that he (the witness), saw nothing to render him suspicious that Jordan was not competent to execute the paper.</p> <p>Jordan was, at this time, between twenty-one and twenty-two years old. After the execution of the deed he was taken by Mr. Taylor to his residence in Maryland. Taylor two days after the execution of the assignment gave notice of it to Mr. Siter, one of the trustees.</p> <p>Jordan again attended medical lectures in Philadelphia one season ; lived for two or three years with his stepfather and worked on his farm. His life up until 1855 was variable, engaged in many different employments ; sometimes drinking to excess ; after 1855 he had been steady.</p> <p>A daughter of Taylor testified that whilst Jordan was living with her father in Maryland she “ always understood him as perfectly satisfied with the deed; he always said that it had been made with his full knowledge and consent, and was just what he meant to do.”</p> <p>Taylor died in Baltimore in 1859, leaving his wife, Jordan’s mother, to survive him, having bequeathed this fund to the grandchildren of himself and Jordan’s mother.</p> <p>After his death the assignment, which had remained in his possession since its execution, was recorded.</p> <p>The executor of Edward Siter, the surviving trustee, settled the trust account December 11th 1860, showing the balance of the trust fund to be $5576.83, On the same day the executor of Taylor and his widow petitioned the court to order the payment of the fund to them on their joint receipt.</p> <p>The account and petition were referred to John H. Brinton, Esq., as auditor. Jordan appeared before the auditor and, alleging the invalidity of his deed under the circumstances, claimed the whole fuud by virtue of the original deed of trust. The question whether the assignment to Taylor created a trust for Jordan, was not raised before Mr. Brinton.</p> <p>He reported that Jordan would have been relieved from his contract if he had applied shortly after its execution, but by the delay the deed is now binding on him, and that the fund should be paid to Taylor’s executor on the joint receipt of the executor and Mrs. Taylor.</p> <p>The court, January 17th 1862, reversed the report and dismissed the petition, “ but without prejudice to the rights of the petitioners or heirs at law or devisors of Hiram Taylor in any suit hereafter to be instituted, &c., relative to the subject-matter.”</p> <p>. Mrs. Taylor, the widow, died about December 1862, and J. T. Price, Esq., took out administration of Hiram Taylor’s estate in Pennsylvania. On petition of Jordan, J. Smith Euthey, Esq., was appointed auditor to distribute the fund amongst the parties entitled thereto. •</p> <p>The facts above stated were found by Mr. Euthey, and he also reported: “ The courts in Maryland have always had authority to set aside deeds for fraud, accident or mistake in matters of fact, precisely as the same object could be attained in England; and probably, upon proper application and proof, might have made a decree, ordering the. deed in this case to be delivered up by Mr. Taylor and cancelled but that he did not think that, under the circumstances disclosed by the evidence, the failure of Dr. Jordan to apply to the courts in Maryland for such a decree, prevented him from now seeking to avoid the deed in Pennsylvania.</p> <p>He further reported: “But the more reasonable view to be taken of the transaction is, that Mr. Taylor, regarding his duty as one standing in the relation of a parent, hastened to Philadelphia on learning the condition of affairs, and procured the assignment to he made, with the view of securing it for his step-son, so that he should not be defrauded. In this view he would occupy the relation of trustee, and would not be entitled to more of the fund than would reimburse him.”</p> <p>He accordingly awarded, out of the fund to the administrator of Taylor, $300, the consideration mentioned in the assignment, with $100 additional for expenses incurred by him in relation to it, with interest on these sums from the date of the assignment, the whole amounting to $1060.66; and, after deducting the costs of the audits, reported that the balance, $5316.42, should he paid to Andrew M. Jordan.</p> <p>Jordan excepted to the report for allowing Taylor’s estate credit for the above sum of $1060.66.</p> <p>The administrator of Taylor excepted to the report for not awarding to him the whole fund, and also because upon the principle adopted by the auditor, he should have reported “ an additional sum to his administrator sufficient to remunerate Hiram Taylor for the support and maintenance of Andrew Mitchell Jordan for two or three years from January 1839, during which time he resided with Mr. Taylor, and amounting, with interest, to at least the sum of $1000.”</p> <p>The court (Hon. J. J. Pearson, president of the Twelfth District, presiding, and delivering the opinion), after referring to the question whether the assignment was intended to he an absolute conveyance to Taylor, said:—</p> <p>“We are disposed to put a construction on the whole transaction less at variance with common honesty, and more consistent with the duty of those taking the assignment. If the object of Taylor in obtaining the deed of 1889 from Jordan, was to hold it for Ms benefit, and prevent the fund from going into the hands of strangers, it is consistent with the duty of one who has placed himself in loco parentis, and we should always construe the con duct of every one to be honest and fair, rather than the reverse, if the act will by any possibility bear such construction. As we conceive, Taylor took this deed to keep the property for Jordan, and never evinced any other intention until he made his will on the 28th day of February 1859, devising the reversionary interest to his own children, and not until the will was made public by probate would Jordan have any notice, actual or constructive, that Taylor intended to defraud him out of his patrimony, and retain his property after his mother’s death. Until then Jordan had no right to institute proceedings to collect the money, and had no reason for applying to a court of law or equity to rescind a deed which was doing him no injury, and which he had a right to expect, would never be brought up in judgment against him. This in our opinion sufficiently accounts for the delay.</p> <p>“ Had Mr. Taylor made known to Dr. Jordan his intention to hold the reversionary interest transferred by the deed, and the latter had not proceeded within twenty years thereafter to have the deed cancelled and the contract rescinded by a decree in equity, we would have held him perpetually barred. Within less than a year after the date of the will, when Mrs. Taylor and her deceased husband’s executor applied to this court to have a decree made in their favor to take the money which was in the hands of the trustee, we find their action opposed by Dr. Jordan, who immediately brought forward his proofs to show the circumstances under which the deed was obtained. He acted promptly after notice that Taylor claimed the money as his own. * * *</p> <p>After further arguing the question as to a deed from a child just arrived at age to a parent, and citing authorities, he says :—</p> <p>“We have therefore no hesitation in declaring this transfer of a vested interest of over $6000, although only to take effect in possession on the falling in of one life in being, for the paltry sum of .$300, no part of which is proved to have been paid, a most inadequate consideration; especially as it can be looked upon in no other light than ‘ catching a bargain1 from one in expectancy, and that too by a step-son of the assignee, barely of age, and the deed executed at the end of a long drunken frolic, and before recovery from the disgrace of being confined in a city prison on account of intoxication.</p> <p>“ The only difficulty arises from the great lapse of time, and that can have little bearing if our views are right as to what Mr. Jordan had a right to believe was his step-fathbr’s purpose in taking the deed — to hold the property for his future benefit.” * * *</p> <p>On the subject of costs he said:—</p> <p>“ If an executor, administrator, guardian or trustee should settle an account which, after a full hearing, .should be found to be unjust or illegal, and the accountant should he greatly surcharged by the auditor, it would be an outrage to throw the expenses of the whole examination on the fund, which would be a deduction of just so much from the money of the heir or creditors. The person found to be in the wrong must, in almost every case, bear the expense of the investigation, except when it appears that the party acted in good faith, and committed an honest error to a small amount.</p> <p>“ The court will therefore, in its' decree, make the correction indicated, as to the costs, and in every other particular the report of the auditor will be confirmed.”</p> <p>Both parties appealed.</p> <p>The administrator assigned for error:—</p> <p>1. Not awarding the whole fund to him.</p> <p>2. Not allowing him remuneration for the maintenance of Jordan for the time he resided with him.</p> <p>3. Imposing the costs on Taylor’s estate.</p> <p>Jordan assigned for error, that the court allowed Taylor’s estate $300, the consideration mentioned in the assignment, and $100 expenses in relation to it, with interest.</p>

<p>1. If the sale of a decedent’s estate made .by order of the Orphans’ Court for the payment of debts produces more than the debts, the law does not require the one-third of the balance to remain a charge on the estate for his widow.</p> <p>2. Where such sale was made by the administrators, subject to the payment of the widow’s dower “ yearly and every year, during her life,” the proceeds of sale represented the estate of the decedent, leaving the purchaser subject to account to the widow for her dower only: and she was not entitled to the interest of one-third of the proceeds.</p>

<p>1. The Act of April 26th 1855, expressly gives the widowed mother power to recover damages for the death of a child, by negligence; the damages are not limited to nursing and medical attendance, but are such as a court and jury under all the circumstances shall consider reasonable.</p> <p>2. Both parents are entitled to recover damages, estimated by a common standard.</p> <p>8. The mother may show what the services of a child were worth to her, as if she had acquired right to them by contract.</p> <p>4. Nursing, medical attendance and funeral expenses, are proper elements of estimate, but the value of services lost is equally legitimate since the statute.</p>

<p>1. Land on which there is residence or cultivation is not the subject of a sale for taxes, as unseated land.</p> <p>2. Sales under the 41st section of Act of April 29th 1844, for the sale of seated land, pass title only when the land is in fact seated.</p> <p>3. Unseated land was, at the request of the owner, placed on the seated list and taxes so paid for it for several years; such land would not therefore remain as seated until the owners choose to return it as unseated, and if sold before such change, the owner would not be estopped from denying that it was seated.</p> <p>4. Larimer v. McCall, 4 W. & S. 133, Commercial Bank v. Woodside, 2 Harris 404, and Milliken v. Benedict, 8 Barr 169, criticised.</p> <p>5. Land was placed on the seated list by the owner and was sold for taxes as seated after it had become unseated. Held, that the sale was void.</p> <p>6. The assessor returned land “ unimprovedthe court properly refused to allow him to testify his meaning in using that word.</p> <p>7. No particular words are required to describe seated or unseated land, whatever shows it to be one or the other is sufficient. “Unimproved” describes unseated land.</p>

<p>1. A sale of land under a fi. fa., without inquisition or -waiver. of inquisition, is wholly unauthorized. •; •</p> <p>2. A void sale is not confirmed by a distribution of its proceeds amongst the judgment-creditors of the debtor.</p> <p>3. Crowell v. Meconkey, 5 Barr 168, Mitchell v. Freedley, 10 Id. 198, Spragg v. Shriver, 1 Casey 284, commented on.</p>

<p>1. In a Suit' on a bond against several, one being principal and the others sureties, a debt due by the plaintiff to the principal may be set off.</p> <p>2. The principal owed the plaintiff for rent for three years, the bond was security for the rent of the first year; the plaintiff owed the principal on an account running through the three years, the account of the first year being less than that year’s rent, and the whole account being larger. Held, that the whole account should be first appropriated to the first year’s rent.</p> <p>3. Where the parties make no appropriation of payments, the law will generally appropriate them to the oldest indebtedness.</p>

<p>Error to the Court of Common Pleas of Luzerne county.</p> <p>This was an action of trespass, commenced August 18th I860’, by S. S. Winchester against Charles Bennett and A. J. Davis, for taking and carrying away a quantity of coal claimed by.the plaintiff. ’ .</p> <p>In 1851 Thomas Fender and others, partners as Patten & Fender, were owners of a coal-mine in Luzerne county: in 1857 Fender had become surviving partner. Bennett and Davis, the defendants, were owners of contiguous mines. There was a lateral railroad from these mines to the Susquehanna river, upon which Patten & Fender and Bennett & Davis had run their coal from the year 1851. Each mine had a place for stocking coal, about 800 yards from the respective shafts. There was evidence that during the years 1858-59 one Mitchell, who was mining for Fender, worked over into Bennett & Davis’s land, and took from it for Fender about 1000 tons of coal; thfit Bennett & Davis having brought suit for this trespass, it was agreed that Mitchell should mine for them as much coal from Fender’s land as he had taken from theirs, they to pay for mining.</p> <p>The following paper was given in evidence as part of the proof of this agreement:</p> <p>“Mr. John Mitchell, — Dear sir: When you and Charles Bennett can arrange about the amount of coal taken from his land, and the price to be paid for the mining and delivering of the same, I hereby agree that you shall deliver the same to him.</p> <p>“I am yours, Thomas Fender.</p> <p>“ Plymouth, October 11th 1859.”</p> <p>There was evidence also that the real estate of Fender was sold by the sheriff under a writ to January Term 1860, but the sale was set aside January 23d 1860; that Mitchell in that month mined about 1000 tons of coal from Fender’s land under the agreement, using the same cars and machinery which he had before used when mining for Fender, and placed it on the stocking-ground ^heretofore used by Fender; that Bennett & Davis paid Mitchell for mining this coal.</p> <p>Fender’s real estate was sold by the sheriff on the 25th of February 1860, and deed acknowledged 27th of same month.</p> <p>A number of executions were issued against the firm of Patten & Fender to May Term 1860, and this coal — being then where it had been placed by Mitchell on the stocking-ground of Fender, —was sold to Winchester, the plaintiff, for $8.</p> <p>There was evidence at the trial that Bennett & Davis were absent from the county, and it did not appear that they had notice of the sale, or that any notice of their claim was given at the sale.</p> <p>Bennett & Davis afterwards took the coal away, for which this action was brought. On the trial no question was formally reserved.</p> <p>There was a verdict for the plaintiff for $858.</p> <p>The court (Conyngham, P.- J.) afterwards directed judgment for the defendant, notwithstanding the verdict, saying in the opinion: “ The verdict was taken in this case in order to ascertain the value of the coal for which the suit was brought, subject to the opinion of the court upon the reserved point.</p> <p>“ The court charged the jury, that if the coal was liable to levy and sale as the property of Pender or Patten & Co. under the executions in evidence, the sale should be considered valid, and would vest the ownership in the plaintiff. It is true that he bid off the whole quantity, about 1000 tons, for the mere nominal price of $8, yet at the time of the sale there were several present, a sufficient number to make the sale good, and though the price was very small, that would not defeat the sale. The fact that Bennett & Davis did not show that they gave notice of their claim at the day of sale, would not estop them now, if the coal truly belonged to them, as the testimony was, that both Bennett and Davis -were absent from the county at the time, and it did not appear that they knew of the proceedings.</p> <p>“ It was not contended upon the part of the plaintiff that there was any question of actual fraud between Pender and Bennett in the transfer of the coal, but he claimed that the neglect and want of a sufficient change of possession was evidence of fraud.”</p> <p>The judge, after stating what in his judgment “ substantially . the facts in evidence were,” further said:—</p> <p>“ The plaintiff contended that this was a sale of personal property, and that the evidence showed no such change of possession attendant upon the sale as would justify the purchaser in claiming adversely to execution-creditors, and that under the undisputed evidence, it presented a case of fraud in law. This point the court reserved, ruling it pro formd with the plaintiff, subject to the agreement of the parties to enter judgment for the defendant non obstante veredicto, if the view of the court upon the law, upon argument thereafter, should be different.”</p> <p>The plaintiff assigned for error the entering judgment for the defendants.</p>

<p>1. In a sale of personal property, the general rule is that it must be accompanied by a change of possession. But some kinds of property are not susceptible of immediate manual delivery, and the law requires only such a delivery and change of possession as the nature of the property will allow.</p> <p>2. Lumber in piles, of which there cannot be an immediate change of possession, should be turned out to the purchaser, its quantity ascertained and conspicuously marked with the name of the owner at once or within a reasonable time, which is as soon as it can conveniently be done.</p> <p>3. Immediate change of possession of lumber sold held not to be necessary under the circumstances in this case.</p>