Volume 55 — Pennsylvania State Reports

<p>Error to the Court of Common Pleas of Luzerne county.</p> <p>This was an action of ejectment, commenced June 11th 1863, by C. D. Gloninger and others against Peter Keihron and others for a lot of land in Wilkesbarre township, Luzerne county, containing about 106 acres. At the trial, February 24th 1865, The Franklin Coal Company was added as landlord and co-defendant.</p> <p>Andrew Wickizer, being the owner of the land in controversy, on the 1st day of January 1808, for the consideration of $6.50 paid by Edward Fell, of the borough of Wilkesbarre, blacksmith,” by deed-poll did grant, sell and convey to the said Edward Fell, his heirs, executors, administrators and assigns for ever, the free right to dig coal at the coal-bed under the foot of the mountain on my lot No. 22, in third division of lands in Wilkesbarre, with the privilege freely to carry the coal from the said lot, as also free egress and regress to and from said coal-bed through my land at all-times hereafter, doing as little damage as may he, in the uses aforesaid.”</p> <p>On the 6th of May 1813, Fell, by assignment endorsed on his deed, conveyed “ all his right, title and interest” in the premises to Thomas Brown for the consideration of $30.</p> <p>On the 12th of July 1819, Brown conveyed to Jacob Hassinger and others “ the free, unmolested and exclusive privilege of digging stone-coal so far as the same extends on said lot No. 22, together with all the privileges that are secured, or meant to be secured to the said Thomas Brown, his heirs and assigns, by the above recited instruments of writing, and also all the estate, right, title, interest, property, claim or demand whatever, of the said Thomas Brown,” &c. To have and to hold the above mentioned and described coal-bed exclusively, with all the privileges thereunto belonging, unto the said grantees, as tenants in common, &c., — “ their heirs and assigns for ever.”</p> <p>By subsequent conveyances eleven undivided twelfths of the interest which passed by Wickizer’s deed to Fell,were vested in The Franklin Coal Company, one of the defendants; the remaining one-twelfth belongs to the plaintiffs.</p> <p>Several veins of coal underlie “ lot No. 22an opening had been made into the “Baltimore vein” near the foot of the mountain and the outcrop of the coal. The lot extends much further up the mountain. The Baltimore vein is supposed to extend under the entire lot and is the principal vein in the Wyoming Valley. There are some smaller veins under and over .it, bui none had been worked on this lot in 1808.</p> <p>After the jury was sworn, the foregoing facts were agreed to by the parties and submitted to the court as a case stated.</p> <p>On the 21st of December 1865, the Court of Common Pleas entered judgment for the defendants, Conyngham, P. J., delivering the following opinion:—</p> <p>“ The plaintiffs claim a right to recover an interest in the coal upon lot No. 22, 3d Division of Wilkesbarre township: of the coal right, of which the original plaintiffs, as the heirs of Eliza Has-singer, represent one forty-eighth part, it being agreed that J. W. Gloninger shall be added as a co-plaintiff, so that all together these represent one-twelfth part. This is claimed to be either' all the coal upon the said lot, north-east of the coal-bed at the foot of the mountain, hereafter referred to, or if not all the coal, which is admitted to consist of several distinct and divided veins, at least of the coal upon said lot, in the so-called Baltimore vein, in the outcrop of which at the foot of the mountain the old coal-bed was opened in 1808.</p> <p>“ Andrew Wickizer in 1808 was the owner of this tract of land, both surface and underlying coal, and on the 1st of January of that year conveyed by deed, duly executed and recorded, to Edward Fell, of the borough of Wilkesbai’re, blacksmith, his heirs, executors, administrators and assigns for ever, in consideration of the sum of $6.50, ‘the free right to dig coal at the coal-bed at the foot of the mountain, on my lot No. 22, &c., with the privilege freely to carry the coal from the said lot, as also for egress and regress to and from said coal-bed through my land at all times hereafter, doing as little damage as may be in the necessary uses aforesaid.’ By various proceedings and conveyances the plaintiffs claim that an undivided interest as above stated, of that which became vested in Edward Fell under said deed, is now vested in them.</p> <p>“ The main question in the cause depends upon the construction of the above recited deed. If by it a corporeal hereditament was granted to Edward Fell, the plaintiffs have established a right to a portion of it. We are certainly disposed to sustain the ruling of our Supreme Court in Caldwell v. Fulton, 7 Casey 475, reaffirmed in Clement v. Youngman, 14 Wright B44, that a grant of an unlimited right, title and privilege to dig and take away the coal on a tract of land to any extent the grantees may think proper and for a consideration presently paid, is a grant of the coal itself, and not merely of a license or incorporeal right. It is a decision too important to this section of country, where there are so many instances of one person owning the surface and another the underlying coal, for us to desire to disturb it.</p> <p>“ The rule too is well settled that the nature and the quantity of the interest actually conveyed by a deed, must be discovered from the deed itself, the subject about which the parties are contracting, and the circumstances and object for which it was made. If this deed was intended to convey to Edward Fell the right to dig and carry away the coal to the exclusion of any right in Wickizer to take any portion of the coal from the tract or from the vein upon the whole tract into which that coal-bed was opened, then it would properly convey a corporeal hereditament, and would fall within the ruling of Caldwell and Fulton; if it was intended to be but of an undefined part of the coal, Wickizer still retaining a right to dig and take coal there, as he might desire, as the owner of the lot, then it will be found to be an incorporeal hereditament and not recoverable in this action of ejectment. From the case of Clement v. Youngman, we learn also, that though the deed may in form seem to convey or actually convey the exclusive right and privilege of searching, digging and carrying away all iron-ore, limestone, &c., still, from other provisions in the deed itself, and circumstances thereby shown to be connected with the transaction, the reasonable intention of the parties may be differently inferred, so as to control the broad and unlimited words in the conveying clauses.</p> <p>“ To understand the present deed aright, and thus get at the true intent of the parties, we think we may revert to the well-known state of our country at the time, and the information we have as to the uses and purposes of stone-coal then'; there are some words in the deed that lead us to this thought. Tradition and history tell us that on the 1st day of January 1808, there was hut little knowledge of great coal-veins and coal-tracts of land, the coal forming the great item of value in such real estate, as is now the case. Coal was then regarded as only capable of being used for ordinary manufacturing purposes by blacksmiths and others, the almost universal opinion being that it could not be used as a fuel, from the want of a bellows or strong artificial draft to make it burn; it was not until February 11th 1808, that old Judge Fell, the officer before whom this deed was acknowledged, succeeded in firing coal, so as to prove that it would burn in a grate. There were at that time no large coal-mines in operation ; small quantities of coal as were needed by the neighboring blacksmiths, were quarried out by the blacksmith and his man at some coal-bed, as they were then called, and sometimes by a man employed by the owner, when it was necessary. There were then but few open coal-beds in this vicinity ; it is believed the Hollenback bed at Mill Creek, the Butler and Bowman bed (now the great Baltimore Company mines), and then, perhaps, this Wickizer coal-bed, made in the outcrop of the vein, were the places from which the blacksmiths in this vicinity obtained their coal; the price of coal for such purposes being mainly the labor of digging it and then the hauling, with a small compensation to the owner. In this deed the consideration is in fact but nominal, though perhaps as Edward Fell was a blacksmith, and is so called in the deed, it may have been a real consideration, allowed in the settlement of some blacksmithing bill with Wickizer, thus purchasing a right to go and procure his coal himself — coal for his purposes, when he needed it; it'.is difficult to conceive that these parties really supposed that the one was selling and the other buying the exclusive right to take all the coal upon the tract or even in the one great vein. From the deed itself it is certainly more natural to suppose, that- being made to a blacksmith, both parties believing that coal was of no use except for the purposes of his shop, that it was intended to give a right to go there and take away coal as the fire of his shop required it. It is certainly also more natural to construe such a deed according to the evident understanding of the parties, as applicable to the subject of their contract, the supply of the purchaser’s forge, for a small consideration, rather than the transfer of the large body of coal claimed now under either view of the plaintiff’s demand. The grant of an open coal-bed is like the grant of property with an open mine ; there the lessee can dig only in the open mines, and cannot sink new pits : 12 Petersdorff’s Ab., tit. Mines.</p> <p>“ The conveyed right is not to search and dig for coal in any place upon the tract, hut ‘ to dig coal at the coal-bed under the foot of the mountain,’ &c., not conveying the coal in the coal-bed, &c., or the coal-bed, but simply to dig coal at the coal-bed, &c. Wickizer had an open coal-bed there — did he convey to Fell anything more than to come there, dig at the bed, to which point free ‘ egress and regress,’ as it is expressed in the deed, is given to him ? Are we called upon to say that when the plain farmer Wickizer, for a trifling consideration, gave to the blacksmith Fell the right to dig coal at his coal-bed, that he intended to deprive himself of all right to do the same — that those parties understood that if a more convenient blacksmith he found nearer to the mine; that he could not give to him the privilege to go and dig coal at the same bed, which he had opened no doubt at his own expense, and which many blacksmiths might find opportunity to dig at, upon occasional times, without interfering with the earlier claimant of a digging right — or that a year or two later, when the experiment of Judge Fell, upon his grate made of hickory saplings, had become known, and the value of coal as a fuel partially ascertained, that Wickizer, or his grantees, had no right to visit his own coal-bed, and get some coal for his own new grate, or even if he could find upon his lot in the rolling of his land another outcrop, that he could make no new opening, because he had parted with his coal right to Fell ? The right is not directly limited by words, but neither is it conveyed in the broad terms of the deed in Caldyrell v. Fulton. We cannot find in this deed expressions justifying such plain and natural queries, as those put by Mr. Justice Woodward in his opinion, 7 Casey 478. There is no language here showing that the grantor clearly intended to part with all the coal upon the tract, or even all the coal in the one vein, in which the bed was originally made. We have no evidence that it is practicable to work out all the coal upon the tract, or all of the Baltimore vein, from the one old coal-bed at the foot of the mountain: we know that in every tract there are faults, breaks of continuity in veins from the rising of the land, in what are termed rolls, so that in the extent or length of the tract north-east from the old coal-bed, there is no probability that from the opening at the outcrop, the coal even of the one large vein can now be worked. Does all this coal, without regard to such questions, belong to Fell and his heirs or assigns, because he obtained a right to dig coal at the old coal-bed, an entrance now, perhaps, entirely useless for the purpose of following the coal at this time ? Have the claimants under Fell, in consideration of the trifling sum paid by them, the right to claim places for engine-houses and appurtenances, breakers and refuse dirt, necessary, as we all know now, to mine and prepare coal for market, near the old opening, or on any other part of the tract ? Flow shall we enter judgment for the plaintiff here ? — for the old coal-bed at the foot of the mountain ? This would be too indefinite and uncertain. Eor all the coal in the tract, or all in the Baltimore vein ? "What evidence have we, as we have said, that the vein of coal is not so broken, that it would be impracticable to procure but comparatively small quantities of the coal from the old coal-bed at the foot of the mountain ? The claim of plaintiffs would seem to be too indefinite to be regarded as a corporeal hereditament, capable of being delivered in an ejectment. We are at .a loss to define the extent of the right, as to say how much coal they may have the right to dig, but in this there is no real difficulty affecting the right. Did not the deed to Fell convey an interest similar to a common in gross, without stint or sans nombre f there may be such a grant to a man and his heirs : 2 Bl. Com. 34 ; 3 Id. 239. We can give no other reading to so indefinite a grant of a simple right to dig out at a specific opened coal-bed, than that it was a right to be used not exclusive, but in common with the owner of the land. This is a conclusion consistent with the deed itself: the addition of the trade or business of the grantee has more meaning than simply as descriptio persones, connecting it with the .subject-matter of the arrangement as both parties, with the knowledge they then had upon the subject, must have intended.</p> <p>“ We are of opinion, too, that upon more general principles, the case falls within the reason of the case cited by Mr. Justice Strong in 4 Wright 344 — the quotation from Lord Coke, and the cases of Lord Mountjoy and Cheatham v. Williamson. Lord Mountjoy’s right was ‘ to take sufficient ore, &c., to make alum and copperas,’ Is not the implication as strong in this case, that the blacksmith was to take coal for his work, that is, for blacksmithing purposes ? Is not this intent as clear as the implied intent to erect iron-works in the case of Clement v. Youngman ? The payment of the small consideration of a few dollars at the making of the contract cannot make a very marked difference in the cases. The language of the reservation in Cheatham v. Williamson was much more comprehensive, covering a right to dig and search for minerals over the whole tract; here the right to dig was at only one place, one coal-bed, where, from all that appears here, there may be now many coal-beds upon the same tract.</p> <p>“ Upon the consideration of the whole case as submitted to us, while we desire to adhere strongly to the true principles, decided in Caldwell v. Fulton, we construe this deed as giving to Fell and his assigns no exclusive right to the coal, and, therefore, in him and the plaintiffs who claim under him, if they have any right at all, only an incorporeal hereditament, which will not sustain this ejectment. Judgment is entered for the defendants.”</p> <p>The plaintiffs removed the case to the Supreme Court.</p> <p>— The deed from Wickizer to Fell is a grant of a corporeal hereditament. It is a grant of coal, and coal is land. Barney v. Sutton, 2 Watts 32, is not in accordance with later authorities: Caldwell v. Fulton, 7 Casey 476. Wickizer’s deed was a conveyance of the coal: Morris v. Phaler, 1 Watts 890. That Fell was described as a blacksmith is nothing, as affecting words of limitation in a deed. Clement v. Youngman, 4 Wright 346, is not analogous to this case, which is like Caldwell v. Fulton, supra.</p> <p>— In Caldwell v. Fulton the grant gave “ the full right, &c., to dig and take away coal to any extent the grantee might think proper under any of the lands of the grantor.” This shows an unlimited grant and designates the quantity of land to which the right extends; it therefore gives a right to all the coal under those lands. In the present case the grantee has only the right to take from the “ bed under the foot of the mountain.” The grant is not exclusive of the grantor, but in common with him. It is to dig an open coal-bed ; the grantee could not sink new pits. It is a mere incorporeal hereditament: 2 Black. Com. 20 ; Ohetham v. Williamson, 4 East 469; Johnstown Iron Co. v. Cambria Iron Co., 8 Casey 241; Clement v. Youngman, 4 Wright 341; Lord Mountjoy’s Case, 4 Leon. 147; Co. Litt. 164, b.</p>

<p>Appeal from the decree of the Court of Common Pleas of Luzerne county. In Equity.</p> <p>This was a bill brought, March 24th 1863, by Jameson Harvey against William Lance.</p> <p>The complainant alleged that he was seised in fee of a certain tract of land in Plymouth township, Luzerne county, containing about 320 acres, that the defendant was the lessee of one Freeman Thomas and had claimed and exercised the rights and privileges of Thomas on the complainant’s land before mentioned ; that Thomas, under the Act of May 5th 1832, on the Gth of August 1834, presented a petition to the Court of Common Pleas of Luzerne county, praying permission and authority to make a railroad, commencing at his tunnel or mouth of his coal-bed and to intersect the Slackwater Navigation, a short distance from the Nanticoke dam, crossing intervening lands of the complainant, the railroad to be 20 feet in width and passing by various courses and distances set out in the petition, “ to low-water mark on said Slackwater Navigation, the said railroad to be made on ah inclined plane, located upon the ground, except the last 17 perches, which is to be raised from the ground on stiltsthat by proceedings in said court, Thomas acquired the right of way for the purposes of a lateral railroad over the complainant’s land described in the petition, and immediately thereafter constructed the said lateral railroad over said land in the manner set forth in the petition and at an inclined plane, descending from the tunnel to the dump-house about 7 feet, occupying complainant’s land for about 65 perches of the breadth of 20 feet; that Thomas, and Lance, the defendant, as his lessee, held possession of the land for the purposes of a lateral railroad until about the year 1856, and kept the road in repair; that since that year the road had been disused and suffered to remain out of repair for two years and more, and continued to be disused, &e., and thereby the right of way or other privilege had ceased and reverted to complainant. He further alleged that the defendant, without having acquired any right by law and in violation of law, had constructed on the complainant’s land before described a house known as a eoal-schute, the main structure being 64 feet long and 37 feet wide, and a smaller building attached, being 16 feet long and 14 feet wide, the whole being 50 feet high, partly within the breadth of the 20 feet of the complainant’s land formerly occupied by the lateral railroad, but the greater part being outside of the 20 feet; that Lance, without permission of the complainant, made a railroad connecting the said coal-schute with his tunnel or mouth of his coal-bed, a portion of the building being on complainant’s land, partly on the 20 feet formerly used for the lateral railroad and partly without said 20 feet, beginning at a point on the line between the complainant’s lands and those of The West Branch Coal Compány and by various courses and distances mentioned in the bill to a point at the commencement of a platform, and by an irregular curvature upon said platform and trestles crossing above the public wagon-road and the Lackawanna and Bloomsburg Railroad to the north-west corner of the coal-schute; that said railroad was constructed on an ascending grade, being at the point where it commenced to run over the complainant’s land at the line of The West Branch Coal Company, eighteen-hundredths of a foot above the grade of the old lateral railroad and rising to the height of about 18 feet above the grade of said old lateral railroad where it connected with the coal-schute and at the same point about 26-|- feet above the grade of the Lackawanna and Bloomsburg .Railroad, the ascent between the two points being gradual and the distance over the complainant’s land being about 900 feet, all being exhibited in a draft attached to the bill. The complainant further alleged, that Lance was continuing to use the said railroad and schute in carrying on the business of mining and shipping coal without permission of the complainant, &c., and in the prosecution of such business was constantly depositing on the complainant’s land large quantities of coal, coal-dirt, culm, slate and rubbish in disregard of the complainant’s rights and of the law, notwithstanding he had frequently requested Lance to desist. The complainant prayed for an injunction to restrain Lance from the occupation and use of his lands ; to compel him to remove the erections, constructions and deposits and to make compensation for the injuries done complainant, &c.; and for further relief.</p> <p>The defendant filed an answer in which he averred, that Thomas, previously to May 1832, owned in fee a tract of land on which was a coal-mine, lying in said Plymouth township near the North Branch Canal; that Thomas having driven a tunnel from the front of the mountain through solid rock about 100 yards until he struck a vein in his coal-mine, was desirous to send his coal to market by boats on the North Branch Canal, and that to do this it became necessary to cross a strip of Harvey’s land; that under the Lateral Railroad Law of 1832, he constructed a lateral railroad from his. tunnel, substantially as set out in the bill; that when Thomas commenced transporting coal on the lateral railroad to load in boats at its termination in the Nanticoke pool, there was at the said termination water sufficient to make a safe and easy navigation, with a good and sufficient towing-path from the schute of Thomas to the outlet look of the pool; that Harvey afterwards built a wharf a few rods from Thomas’s schute into said pool, which obstructed the flow of the water and filled up the pool around the schute and hindered its navigation ; that about 1852 the defendant became sole tenant of Thomas, and found everything in so dilapidated a condition as to be practically useless ; that he caused it to be levelled to nearly an even grade, put it otherwise in suitable repair for a light business and continued to use the lateral railroad until 1856, about which time he sold all his right in the lease to the Mammoth Vein Coal Company, who took possession of the lateral railroad and premises and used them until about August 1st 1858. The defendant further averred that in pursuance of an act of incorporation passed about April 5th 1852, the Lackawanna and Bloomsburg Railroad Company laid out, constructed and used a railroad 60 feet wide, which passed over the complainant’s land, crossing the lateral railroad as laid down on complainant’s draft and running both above and below the lateral railroad entirely across the land of the complainant ; that the grade of the Lackawanna and Bloomsburg Railroad was about 7 or 8 feet below the level of the lateral railroad and was laid on the only practicable grade at the point where it crossed the lateral railroad; that if the lateral railroad had been kept at its grade as theretofore used, the Lackawanna and Blooms-burg Railroad could not have been used for a locomotive railroad and the purposes for which it was chartered would have been defeated; that the Mammouth Vein Coal Company and the railroad company entered into an arrangement for enabling the railroad company to use their road for the purposes for which it was chartered, and that in pursuance thereof the lateral railroad was raised several feet higher than its original grade, but that the defendant had no control or authority in relation to it and that the lateral railroad was no otherwise altered than in the grade. The defendant denied that the lateral railroad had been disused since 1856 or that it had at any time been disused and suffered to remain out of repair, since he became lessee of Thomas, for two years or more ; and denied that he or any one by his authority had constructed any railroad on Harvey’s land other than upon the lateral railroad constructed by Thomas and upon the Lackawanna and Bloomsburg Railroad. The defendant further averred that in January 1860, his schute-house at the terminus of the lateral railroad at the Nanticoke pool was burned, and that owing to the before-mentioned obstruction of the navigation in the pool he had not rebuilt it, but intended to do so ; that he had erected a coal-sehute as mentioned in the bill and that the whole of the schute is upon land occupied and appropriated for the lateral railroad and the land taken and used by the Lackawanna and Blooms-burg Railroad ; that it was erected by the consent and under the authority of the railroad company, and is used for a coal-schute or coal-loading depot for the purpose of temporary deposits of coal taken from the mines and transported on the lateral railroad to the Lackawanna and Bloomsburg Railroad and unloaded into schutes in the building and thence in the ordinary way by gravity is loaded into the cars of the railroad company and transported to market; that he, the defendant, was out of possession of. the premises about 28 months. The defendant further averred that in 1855 the Lackawanna and Bloomsburg Railroad Company appropriated a strip of land belonging to Harvey about 60 feet wide for the purposes of their railroad, and had used the same ever since for such purposes; that about the time the company took said land, a fence was erected above the schute-house along the line of the Lackawanna and Bloomsburg Railroad, on the south-easterly side, which was the boundary on that side of the land so appropriated; that the surface of the ground along this fence and between it and the north-western boundary of said strip of land is much lower than the grade of the road, and that for the last two years he had been employed by the railroad company in filling up and grading said strip for the purpose of laying a second track, sidings, &c., and that in doing this he had used culm, coal-dirt, &c., and had deposited and was depositing considerable quantities of it cn the strip of land, which had been in the entire possession and control of the railroad company since 1855, and had not been since that time in the possession or under the control of Harvey.</p> <p>The defendant denied that he had been depositing on the land of Harvey considerable quantities of coal, coal-dirt, &c., otherwise than was before set forth, and that when he had been in possession of the premises it always had been as lessee of Thomas.</p> <p>A replication was filed and the case was referred to an examiner and master; much testimony was taken and many interlocutory proceedings were had. There did not appear to have been a report of a master finding the facts in the case.</p> <p>On the 21st of January the Hon. John J. Pearson, President of the 12th Judicial District, holding a special court, filed an elaborate opinion of considerable length and decreed, that all the right of way in Lance, Thomas and all other claimants to the part of the lateral railroad between the Lackawanna and Bloomsburg Railroad and the termination at the Nanticoke pool had ceased and the same had reverted to Harvey, the owner of the soil; that all the lateral railroad which had been located and constructed and then remained outside of the 20 feet which the lateral railroad was authorized to occupy of the land of Plarvey should be removed from his land; that the change of grade and construction of a new lateral railroad different from that granted to Thomas over land of Harvey was illegal and a violation of Har vey’s right, and should he removed and abated; that the coalschute and screen, at the then termination of the lateral railroad, for the purpose of shipping coal from the lateral road upon the Lackawanna and Bloomsburg road, situate partly on Harvey’s land, over which a right of way was claimed by the Lackawanna and Bloomsburg Railroad Company, within the 20 feet of the original lateral road and partly on land of Harvey without the 20 feet, should be removed and abated; that all the coal, slate and debris of any kind deposited by Lance or those claiming under him between the mouth of the mine and the northern line of the Lackawanna and Bloomsburg Railroad upon the land of Harvey outside of the 20 feet of the ground granted for building the lateral road should be removed; that all the coal, coal-dirt and debris of any kind deposited by Lance or any person under him upon Harvey’s land outside the line of the Lackawanna and Bloomsburg Railroad Company’s right of way, which was adjudged not to exceed 60 feet in width, should be removed, and that Lance should pay the costs of the whole proceeding; the decree not to prejudice the rights of Harvey to maintain an action against the Lackawanna and Bloomsburg Railroad Company, the Mammoth Vein Coal Company or Lance to recover damages, &c.</p> <p>From this decree the defendant Lance appealed.</p> <p>The errors assigned were, that the court erred in deciding :—</p> <p>1. That any portion of the lateral railroad had reverted.</p> <p>2. That any portion of the lateral road on Harvey’s land was outside the 20 feet and should be removed.</p> <p>8. That the grade was illegal.</p> <p>4. That the railroad, as changed, must be removed by Lance.</p> <p>5. That the coal-schute must be removed.</p> <p>6. That Lance must remove the coal-dirt north of the Lackawanna and Bloomsburg Railroad.</p> <p>7. That the coal-dirt, &c., on the south-east side of the Lackawanna and Bloomsburg Railroad must be removed, and especially in declaring the manner in which the location of the Lackawanna and Bloomsburg Railroad should be ascertained.</p> <p>8. That the court erred in not sending an issue to a jury to ascertain disputed facts.</p> <p>9. In entertaining a bill in equity as an appropriate remedy in the case.</p> <p>cited Dwarris on Stat. 750 ; Mayor of Allegheny v. Ohio and Pa. Railroad, 2 Casey 355 ; Packer v. Sunbury and Erie Railroad, 7 Harris 211; Reay v. Huntington, 4 East 285; Scales v. Pickering, 4 Bing. 452. Acts of May 5th, 1832, § 12, Pamph. L. 505; March 28th 1840, § 1, Pamph. L. 196, Purd. 848, pi. 62, 64; Mifflin v. Railroad, 4 Harris 194; Ridge Turnpike v. Stoever, 6 W. & S. 878 ; Lewis v. Jones, 1 Barr 836; Kemp v. London and Brighton Railroad, 1 Eng. Railroad Oases 374; Blackman v. Glamorganshire Canal Co., 1 Mylne and Craig 162; Queen v. East. Co. Railroad, 1 Eng. Railroad Cases 382; River Dun Nav. Co. v. London and B. Railroad, Id. 101; Head v. Providence Ins. Co., 2 Cranch 127; Dartmouth Coll. v. Woodward, 4 Wheat. 636; Beatty v. Knowler, 4 Pet. 152; Gossler v. Georgetown, 6 Wheat. 597; Sanderson v. Haverstick, 8 Barr 294 ; Feree v. Meily, 3 Teates 153; Redfield on Railways 69, pi. 7-8; Skilton v. Webster, Brightly’s R. 203; Bank of Ky. v. Schuylkill Bank, 1 Pars. R. 220 ; Bank of Va. v. Adams, Id. 534, 1 Troub. & PI. 63, 64 ; Kerlin v. West, 1 Green’s Ch. R. 449; Webb v. Manchester and L. Railroad, 1 Eng. Railroad Cases 576-.</p> <p>After argument the Supreme Court referred the cause and all the proofs and exhibits to C. L. Lamberton, Esq., as master in chancery, to find and report:—</p> <p>1. Whether the lateral' railroad was disused in 1856 or has been disused and suffered to remain out of repair since then for two years or more.</p> <p>2. When the coal-schute was erected and by whose order and for whose use ; whether it was necessary for shipping coal by the Lackawanna and Bloomsburg Railroad; whether it was erected on the 20 feet appropriated to the lateral road; whether it was wholly or partly within the 60 feet appropriated to the Lackawanna and Bloomsburg Railroad; how much, if any, extended beyond tfie 60 feet; whether the alignment and gradients of the lateral road from the mine to the schute are in substantial conformity to the decree establishing the road and are reasonably necessary and convenient for transporting and shipping coal.</p> <p>3. How many square feet or perches of the complainant’s land outside of the 20 feet appropriated .to the lateral road and of the 60 feet appropriated to the Lackawanna and Bloomsburg Railroad, have been covered by coal, coal-dirt, &c., by the defendant, specifying the land and furnishing a draft of it; if the deposits have been successive with considerable intervals intervening, to fix the time of the several deposits and indicate upon the draft the height in feet and inches of the deposit; and, if necessary, to take further proofs.</p> <p>The master reported:—</p> <p>1. That the lateral railroad was altered by the lessees of Lance in 1856 in its gradients, from the line of Harvey’s land to where it crosses the Lackawanna and Bloomsburg Railroad, the alignment being substantially the same; that the lateral road was changed from a descending to an ascending grade, the difference where the old wagon-road was crossed being about 18 feet; that formerly the wagon-road crossed over the lateral road and now-passed under it; that the lateral road was altered to accommodate the passage of the Lackawanna and Bloomsburg Railroad, and with some disadvantage to the operations upon it, and as altered, continued to be used for transporting coal from the tunnel to the pool at the Nanticoke dam until in January 1860, when the schutehouse was burned, and that portion of the lateral road not occupied by the new schute-house, had been disused and suffered to remain out of repair for two years or more.</p> <p>2. That in 1860 the building known as the coal-schute was ereoted by Lance for shipping coal on the Lackawanna and Bloomsburg Railroad, in constructing ■which the alignment of the lateral road, from a point named to the schute-house, was altered and the part so vacated has been disused, &c., for two years and more ; that the new schute-house is partially within the 20 feet of the lateral road and the remainder within the 60 feet of the Lackawanna and Bloomsburg Railroad ; that the gradients are an entire reversal of those of the lateral road as originally constructed, and that these changes at the time of the location of the Lackawanna and Bloomsburg Railroad and the burning of the old schute-house were reasonably necessary and convenient for transporting and shipping coal over the lateral road; that a new schute-house and breaker have been erected over the wagon-road and railroad about 65 feet from the tunnel; that the rails and many of the ties have been removed from the lateral railroad from that point to the schute-house; and that both it and the schute-house of 1860 are disused and out of repair.</p> <p>3. That Lance obtained from the president of the Lackawanna road authority to grade additional tracks on the land appropriated for its right of way by depositing his refuse coal along the main track of the railroad at about 20 feet from it, and in so doing Lance embanked the coal-dirt, &c., against a fence erected by the company in the place of one of Harvey’s, torn down by them ; that the embankment caused the fence to give way, and it was removed, from time to time, to a distance of from 10 to 20 feet from where it stood, and this was part of the original fence diverged to unite with the schute-house; that at this point and below, the railroad is built along the base of the hill below the public road, which being above the other is supported by a wall; from this wall, including its width at the point where the fence originally was, is 59 feet to the fence on the lower side of the railroad ; that at some points the fence is within the 60 feet and some places beyond it, pressed out by the coal-dirt embankment, some of which, but unimportant in quantity, has gone beyond the 60 feet; that the embankment made by Lance under the authority of the company is within the 60 feet; that 1165 cubic yards of the embankment, since its construction, have been carried over Harvey’s land below, which is attributable to insufficient culverts, causing floods to pass over the embankment; that a wall supporting the lateral road has given way, precipitating coal-debris into a public road, and a portion of this debris is deposited beyond the limits of the road; that there was a deposit of coal-debris on the site of the burned schute-house made by Lance before 1861, extending beyond the 20 feet of the lateral road and the 60 feet of the Lackawanna road; that after the erection of the new schutehouse in 1860 a large mass of coal-debris was thrown from the end next the river, forming a pile which extended beyond the limits of the lateral road and the 60 feet of the Lackawanna Railroad ; that the deposit, made during the existence of the schute-house which was burned, outside the limits of the 20 feet of the lateral road and of the 60 feet of the Lackawanna Railroad and along the schute-house for 55 feet is 25 feet in width, of an average height of 8 feet and contained 385 cubic yards ; on the other side of the schutc, beyond the above limits, the pile extended 45 feet of the width of 37 feet and of an average height of 8 feet, and contained 493 yards, altogether 828 yards, and having a superficial area of 2790 feet; that the pile outside the new schute-house, put there since 1860, extended beyond the same limits 87 feet in length, 35 feet in breadth and 8 feet in height, contained 902 cubic yards and had a superficial area of 3045 feet; the excess of deposit along the road was a strip of 380 feet long, 11 feet wide and 1 foot deep, contains 155 yards and has a superficial area of 480 feet. A draft was attached to the report.</p> <p>Upon the coming in of the master’s report no exceptions were filed, to it and no further argument submitted.</p>

<p>1. Upon a petition to the Supreme Court alleging that the judge of a lower court refuses to seal a bill of exceptions, a writ of mandamus cannot issue commanding that court to seal a bill of exceptions under Statute of Westminster 2d, Edw. I., cap. 31: a special writ setting forth the circumstances of the ease'and commanding the judges, if they be true, to affix their seal, is the proper practice.</p> <p>2. The practice under this writ is not according to the course of pleadings in mandamus; a demurrer will not be allowed but the petitioner may file exceptions to the return to the writ.</p> <p>3. If the judge, in his return, confess the facts and seal the hill, the exceptions become part of the record: if he deny them the petitioner has his action for a false return.</p> <p>4. In such proceeding the Supreme Court has nothing to do with the quality of the exceptions. When the record comes up on the writ of error, the court will consider whether the exceptions were duly taken under the rules of the court below.</p>

<p>1. National banks are responsible only to the National Government and are as entirely independent of state legislation or interference as the army, navy, mint or courts of the United States.</p> <p>2. A state cannot tax stock issued for United States loans.</p> <p>3. Taxation of national banks by the states in any other way than that excepted by the Act of Congress of June 3d 1864, is unconstitutional.</p> <p>4. The Act of Assembly of January 4th 1859, authorized the city of Pitts-burg to tax banks, &o.; this tax is not within the terms of the 41st section of the Act of Congress of June 3d 1864, and cann'ot be imposed on a national bank.</p>

<p>Certificate from Nisi Prius.</p> <p>This was an action to January Term 1864, by Farnham, Kirk-ham & Co. against the The Camden and Amboy Railroad Company, in which the following case was stated for the opinion of the court in the nature of a special verdict.</p> <p>The defendants are a corporation under the laws of New Jersey, and all laws referring to the said corporation may be considered as if herein fully set forth.</p> <p>The defendants are engaged in the business of transporting freight from Philadelphia to New York, via railroad from Camden to Amboy and steamboat from Amboy to New York.</p> <p>On the 8th day of July 1864, the plaintiffs, who were merchants in the city of Philadelphia, and regular shippers of freight to be transported by the defendants, delivered to the defendants for transportation to New York, the hales of goods mentioned in the bill of lading — a copy of which is hereto annexed, marked “ Exhibit A,” and that the said bill of lading was then signed by a duly authorized agent of the defendants and delivered to the plaintiffs, by whom the same was accepted and transmitted to their agent in New York, as his authority to receive the goods.</p> <p>The said goods weighed 3220 pounds, and were of the value of $6778.24.</p> <p>On the day when the goods were delivered for transportation, there was placed in a conspicuous place in the receiving office of the defendants, in 'the city of Philadelphia, and also at the receiving offices at Camden, New York and intervening points', a notice, of which the paper hereto annexed, marked “ Exhibit B,” is a copy, wherein the law of the state of New Jersey, therein referred to, is correctly and at large set forth, which notice had been thus placed since the passage of said act.</p> <p>The aforesaid bales of goods were in due course of transportation safely transported to the defendants’ wharf in the city of New York, where they arrived on the night of Saturday, July 9th, or on the morning of Sunday, July the 10th 1864, and were placed under a shed on the wharf ready for delivery, and while there and before the plaintiffs had notice of their arrival or opportunity to remove them, a fire broke out on board a steamboat called the John Potter, belonging to the defendants and then lying at the wharf, which totally consumed the steamboat and her cargo, and also the defendants’ wharf and sheds and all the goods thereon and thereunder, including the plaintiffs’ twenty-four bales of goods, the origin of which fire is totally unknown.</p> <p>Four watchmen employed by the defendants were on duty at the time on the wharf and boat, and .the crew was on board the steamboat.</p> <p>The defendants have paid to the plaintiffs without prejudice the sum of $3220, being at the rate of $1 per pound — the amount for which they admit their liability under the bill of lading.</p> <p>If the court shall be of opinion that the defendants are liable to the plaintiffs for the full value of the goods, then judgment shall be entered for the plaintiffs in the sum of $7422.17 (being the value of all the goods with interest to this date), less the sum of $3525.90 (that being for 3220 lbs. at one dollar per pound, with interest to date), but if the court shall be of opinion that the defendants are not liable for more than $100 per 100 lbs., amounting as above to $3525.90, which has been already paid, then judgment shall be entered for the defendants.</p> <p>Exhibit A.</p> <p>Camden and Amboy Railroad and Transportation Company.</p> <p>***** ***</p> <p>Philadelphia, July 8th 1864.</p> <p>Received from Farnham, Kirkham & Co.</p> <p>Twenty-four Bales I) Goods. (The numbers follow.)</p> <p>Marked T. W. S., New York,</p> <p>which we promise to deliver (subject to the conditions expressed on the back of this receipt) to T. W. Shannon or order, at our office in New York, upon payment of freight therefor.</p> <p>Freight $9.00, paid.</p> <p>W. I. Way,</p> <p>Receiving Clerk.</p> <p>(In order to avoid detention of draymen, shippers are requested to fill up receipt and duplicate.)</p> <p>Conditions or Shipment.</p> <p>The responsibility of the company as carriers of the within named goods is hereby limited so as not to exceed $100 for every 100 lbs. weight thereof, and at that rate for a greater or less quantity, the shipper declining to pay for any higher risk. The company will insure to any amount if desired. In case of loss or damage, due proof of the amount thereof' to be made by the claimant without delay.</p> <p>Looking-glass plates, &c., * * and all other fragile articles, will be taken only at the owner’s risk of breakage. No allowance will be made for deficiency of * * fruit, unless the packages are in perfect shipping order — if casks, barrels or kegs, to be head-lined; if boxes or baskets, to be securely covered with canvas ; nor for loss of hats, &e., * * unless the cases are properly strapped when shipped ; or for damage or loss of perishable articles by heat, cold, unavoidable accidents or delays, nor for leakage of liquors or liquids of any kind, nor for rust on iron or other metals.</p> <p>Exhibit B.</p> <p>Notice.</p> <p>Responsibility of the Company as Carriers limited to $100 per 100 lbs.</p> <p>The Camden and Amboy Railroad and Transportation Company</p> <p>Hereby give notice, in pursuance of law, that they have limited, and do hereby limit, their responsibility as carriers of goods, so as not to exceed one hundred dollars for every one hundred pounds weight thereof, and at that rate for a greater or less -quantity; but will insure goods, if desired, at the rate of eight cents per ton per mile for the distance carried, for every $200 insured on 100 pounds of goods, and at that rate for a greater or less quantity.</p> <p>Goods carried from New York to Philadelphia, or from Philadelphia to New York, will be insured (if desired), at the rate of sixteen cents for every $100 insured.</p> <p>Copy of the law of the state of New Jersey, in reference to the liability of railroad companies, passed March 10th 1853.</p> <p>“ Any railroad company of this state may, by giving notice to any person or persons offering goods, merchandise or baggage, for transportation on the railroad, or in the boats or vessels of such company, limit their responsibility as carriers thereof, to $100 for every 100 pounds weight of such goods, merchandise or baggage, and at that rate for a greater or less quantity, unless such person or persons so offering such goods, merchandise or baggage, for transportation, shall pay to said company, by way of insurance, for any additional amount of responsibility to be assumed, such rate or rates as may be charged by said company therefor, not to exceed the legal rates for transporting 100 pounds of goods or merchandise on such railroad, or in such boats or vessels, for every $200 of additional responsibility, assumed on each 100 pounds of such goods, merchandise or baggage, and at that rate for a greater or less quantity; and a general notice of the limitation of such company’s responsibility, placed in a conspicuous place, at or in the receiving office of such company, where goods, merchandise or baggage are usually received by them for transportation, and inserted in the bills of lading or receipts given for such goods or merchandise, and in the tickets delivered to passengers, shall be deemed sufficient notice under this section.”</p> <p>On the 17th of March 1866, the Court of Nisi Prius (Strong, J.) entered judgment for the defendants.</p> <p>The plaintiffs removed the case and assigned for error thus entering judgment.</p> <p>— At common law it is the duty of a common carrier to transport goods.</p> <p>He is legally responsible for all losses, from whatever cause arising, the acts of God and the public enemy alone excepted.</p> <p>As an insurer he may demand a premium proportioned to the hazard of his employmentCoggs v. Bernard, 2 Ld. Raym. 909 ; Lane v. Colton, 1 Id. 646, 655, 1 Salk. 143; Riley v. Horn, 5 Bing. 217; Lockhart v. Lichtenthaler, 10 Wright 151.</p> <p>Agreements to avoid their common-law liability as insurers will not excuse them from gross carelessness or negligence ; and the onus of showing 'that the cause of the loss was within the terms of the exception, and also that there was no negligence, lies on the carrier: Angelí on Carriers, §§ 267, 268, 275 ; Hollister v. Nolen, 19 Wend. 234; Cole v. Goodwin, Id. 251; Sager v. Railroad Co., 31 Maine 228 ; Swindler v. Hilliard, 2 Richardson 286; Davidson v. Graham, 2 Ohio 133; Gould v. Hill, 2 Hill 623, 2 Kent 607, note c; Camden and Amboy Railroad- Co. v. Baldauf, 4 Harris 67? decided in 1851; Penna. Railroad Co. v. McCloskey’s Administrator, 11 Harris 526; Illinois Central Railroad Co. v. Read, 37 111. Rep. 37; Hooper v. Wells, Am. Law Reg., vol. 5 N. S., 16; Owners of the Mary Washington v. Ayres, Am. Law Reg., Sep. 1866, 692; Beekman v. Shouse, 6 Rawle 179 ; Clark v. Spenee, 10 Watts 337.</p> <p>The statute of New Jersey cited cannot govern in the courts of Pennsylvania. The contract was made in this state and the suit was brought here, the interpretation of the contract and the rule for its government must be the lex loci: Story on Conflict of Laws, § 272; Bank of the United States v. Donnally, 8 Peters 361; Wilcox v. Hunt, 13 Id. 378; Hale v. The New Jersey Steam Navigation Co., 15 Conn. 539.</p> <p>— 1. The limitation of responsibility in the bill of lading and the printed notices was legal.</p> <p>2. The plaintiffs must be presumed to have known and acquiesced in the limitation when their goods were delivered for transportation.</p> <p>3. In view of the facts ascertained by the case stated, the-responsibility of the defendants cannot be enlarged through any presumption of negligence or misconduct on their part.</p> <p>One who has intrusted goods to a common carrier cannot be permitted to say that he had no notice that the acceptance was qualified, when notice was given, not only by a placard which he could not fail to see, but by a paper actually put into his hands.</p> <p>The non-delivery of the goods intrusted to a carrier’s charge is alone sufficient to render him responsible, .but where the nondelivery is accounted for, and it does not appear that there was any negligence on the part of the bailee, the maxim quod non apparet, non est, will apply as in other cases: The Railroad Co. v. Baldauf, 4 Harris 67; Beekman v. Shouse, 5 Rawle 189; Clark v. Spence, 10 Watts 335 ; Goldey v. The Pa. Railroad Co., 6 Casey 242; The N. J. Steam Nav. Co. v. The Merchants’ Bank, 6 Howard 384; Marsh v. Horne, 5 B. & C. 322 ; Harris vf Packwood, 3 Taunt. 264; Angelí on Carriers, § 276; Story on Bailments, § 573 ; Greenleaf on Evidence, § 218 ; Sager v. The Railroad Co., 31 Maine R. 228; Wyld v. Pickford, 8 M. & W. 460.</p> <p>The case is in all material respects identical with that of a carrier offering to transport goods of a.certain value at one rate, and those of a higher value at a higher rate.</p> <p>The common-law liability of a common carrier may be limited, qualified and restricted, either by a special acceptance from, or by a special contract with the owner or shipper ; provided such special acceptance or special contract do not attempt to screen Nthe carrier against losses by his own misconduct or negligence: VAngell on Carriers, chap. vii.; Cole v. Goodwih, 19 Wend. 251; 'c., Angelí on Carriers, Appendix, p. 32, 2d ed.; Farmers’ and Mechanics’ Bank v. Champlain Transportation Co., 23 Vermont 186, 1851; Carr v. The L. & Y. R. W., 14 Eng. L. & Eq. 340; Story on Bailments, § 549, § 549 a, 549 b, 7th ed.; Southcote’s Case, 4 Coke’s Rep. 84; Farmers’ and Mechanics’ Bank v. Champlain Trans. Co., 16 Verm. 52, 18 Id. 131, 23 Id. 205; Paradme v. Jane, Aleyn 26-7; Morse v. Slue, Ventris, part 1, pp. 190, 238; S. c., 2 Lev. 69, 3 Id. 268, Show. 29, Dyer 190, Raym. 220, 1 Mod. 85, 3 Keb. 72, 112, 135, 2 Id. 866, Molloy 4, 9, 10,11, 203 ; Kenrig v. Eggleston, Aleyn 93 ; York Co. v. The Central Railroad Co., 3 Wallace 107; Cole v. Goodwin, 19 Wend. 251; Gould v. Hill, 2 Hill 623; The Peninsular and Oriental Steam Navigation Co. v. Shand, 11 Jurist 771; Dorr v. New Jersey Steam Nav. Co., 1 Kern. 484; N. J. Steam Nav. Co. v. Merch. Bank, 6 How. 382; Story on Bail., § 549 ; Chitty on Cont. 152 ; 2 Kent Com. 606 ; Angelí on Carriers, §§ 59, 220, 221; Bingham v. Rogers, 6 W. & S. 495; Laing v. Colder, 8 Barr 479; Chouteaux v. Leech, 6 Harris 224; White-sell v. Crane. 8 W. & S. 373; Van Toll v. S. E. Railway Co., 12 Scott 87, s. c. 104 E. C. L. R.; Hale v. N. J. Steam Nav. Co., 15 Conn. 539.</p> <p>The doctrine that the carrier is legally responsible for all losses, from.'whatever cause arising, the act of God and the public enemy alone excepted, has no application in this case, where the parties have expressly provided a different rule of liability: Steamboat New World v. King, 16 How. 475; Shields v. Blackburne, 1 H. Bl. 161; Wilson v. Brett, 11 Exchequer 116; Grill v. Iron Screw Coll. Co., 1 Law Rep. 612; O’Brien v. The Phila., Wilmington and Baltimore Railroad Co., 6 Am. Law Rep. 364; Duff v. Budd, 3 Brod. & Bing. 177; Riley v.. Horne, 5 Bing. 217 ; Batson ¶. Donovan, 4 B. & Aid. 21; Citizens’ Insurance Co. v. Marsh, 5 Wright 394; Hays v. Kennedy, Id. 378; Thorogood v. Marsh, Gow R. 105; Story on Bailment, § 551; Peck v. N. Staffordshire Railway, 32 Law J. R. 241; Pa. Railroad v. Henderson, 1 P. F. Smith 315.</p>

<p>Error to the Court of Common Pleas of Luzerrte county.</p> <p>This was an amicable action of ejectment by John M. Stark against James E. Stark, A. H. Stark and D. S. M. Stark, to November Term 1866, in which the following facts were agreed unon in the nature of a special verdict, and stated for the opinion of the court;—</p> <p>“ James Start, in his lifetime, at and immediately before his death, was seised in fee of the land described in the writ, and being so seised, made his last will, whereof he made the defendants the executors. Under a clause in the will, he devised the three-tenth parts, undivided, of the tract, to his daughter, Mary Jane Start, who afterwards married Charles Flagg.</p> <p>“ James Stark, in his lifetime, was the husband of three wives, by the first of whom he was the father of two children, by the second the father of other two children, whereof the present plaintiff is one, and by the third he was the father of other eight children, whereof the said Mary Jane Flagg was one; After-wards the said Mary Jane Flagg died intestate, leaving neither issue, or husband or parent surviving her. The defendants herein repz-esent the surviving children of James Stark by the third wife, and the heirs of one other child by the third wife, who has died since the death of James Stark, and before the death of Mary Jane Flagg, and thus representing, claim to hold the entire estate which was of said Mary Jane in the premises. The plaintiff claims also as an heir at law of the said Mary Jane.</p> <p>“ If the court are of opinion that he is entitled to recover, then judgment shall be entered in favor of plaintiff for (1-11 of 3-10) three one hundred and tenths part of the land described in the writ, otherwise judgment to be entered for defendants.”</p> <p>The court (Conyngham, P. J.) delivered the following opinion:—</p> <p>“ Mary J. Flagg, in whom the real estate in dispute was vested at the time of her death, under a devise from her father, James Stark, died intestate, without issue, father or mother surviving her, but leaving brothers and sisters of the whole blood, represented by the defendants, and brothers and sisters of the half blood, children of the same father, James Stark, though of different mothers, partially represented by the claim of the plaintiff.</p> <p>"The single question arising under the case is, whether under the circumstances stated, a brother of the half blood can inherit a share of the property, in common with the brothers and sisters of the whole blood, being all children of the same father.</p> <p>“ We think that a careful consideration of the Intestate Act of 1833 will show that the question is free from any great difficulty. This act contains carefully compiled rules, intended to regulate the descent and transmission of property in all ordinary cases of intestacy; if then the provisions of the act, in the case before us, apply to it, they must control our present decision. The act is so drawn up as to endeavor to meet progressively the various questions of transmission and descent, as in our present formation of society, and the customs and habits of our people, they are commonly found to arise. The 1st, 2d and 3d sections refer to the cases of surviving husband and wife, lineal descendants, and father and mother, qualified partially by the proviso in the 9th section, the 4th section with its subdivisions, the 5th and 6th, also the 7th and other .sections, not now requiring more especial reference, apply to the case of collateral heirs and kindred.</p> <p>“ The 4th and 6th sections seem to be the provisions particularly applicable to the case now under consideration ; and mainly of those, art. 3, section 4.</p> <p>“ The Act of 1833 was one of those reported by the commissioners to revise the civil code, and in their report they say that the sections of the new act now before us were taken from corresponding sections of the Intestate Law of 1794, and the supplement of 1797, and from non-variation being suggésted, it was evidently intended to return them, so far as any question is presented by the present case, unaltered in principle, though slightly varied in language. They further say in their report as to the 6th section, that ‘ it provides for the transmission of real estate to brothers and sisters of the half Hood, in the event of there being no person to take, as enumerated,in the preceding sectionsthat is to say, as we,understand, among,collaterals, when there is neither father or mother, brothers or sisters of the whole blood or their descendants; they also declare that this 6th section is copied from the 11th section of the Act of 1794, and the 7th section, Act of 1797. As then, the law is now to be considered the same as under the previous statutes. We quote the words of the 7th section, Act of 1797, as explanatory of the meaning of the portion of the Act of 1833, at this time under consideration. See Smith’s Laws, vol. 3, 299. ‘ If the intestate shall die seised or possessed of real or personal estate as aforesaid, leaving neither widow nor lawful issue, father or mother, but brothers and sisters of the whole and half blood, or their representatives, the brothers and sisters of the whole blood, and the legal representatives of such of the whole blood as are dead, shall inherit the real estate in fee simple, and the personal estate shall be distributed equally between the brothers and sisters of both the whole and half blood, or their representatives; but if there are no lawful issue, widow, father or mother, brothers or sisters, or their representatives, of the whole blood, then brothers and sisters of the half blood shall inherit the real estate in fee simple, and the personal estate absolutely,’ &c., &c. When we read this quoted section, is there any difficulty in understanding it ? Clearly, when there are brothers and sisters of both the whole and half blood, or their descendants, the former will first take the real estate, and the latter can have no claim to it. They can only inherit in default of the whole Mood. In a case like the present the question of the blood of the ancestors makes no difference.</p> <p>“ Again we find this laid down as the rule of descents under the earlier statutes : Gordon on Dee. 399, 60; 1 Heed’s Penn. HI. 507-8 ; Smith’s Laws, vol. 3,153, and inf. note to Act of 1794. We refer also to the case of Preston v. Hoskins, 2 Yeates 545, where it is clearly admitted that, under the Act of 1794, this would be the rule as to real estate, though any direction as to personal property (afterwards supplied by the Act of 1797) was omitted.</p> <p>“ It is said that no direct decision can be found in our books upon this now disputed claim of the Act of 1833. The case must frequently have occurred in upwards of thirty years since the adoption of that statute, and in our opinion the reason why we find no express ruling of our Supreme Court upon the point is, that the language of the act, when fairly examined, cannot be misunderstood, .and that particularly the ruling has ever followed without change, in the same way for upwards of seventy years, since the Acts of 1794 and 1797. Indirectly, however, meeting the question, we do find more than one decision. The case of of Danner v. Shissler, 7 Casey 289, has been cited by the counsel of the plaintiff in the argument, as giving rise to some doubt upon the subject. We do not, however, take this view of the reported case; in our opinion it plainly recognises the doctrine we have stated above. The case there arose under the 7th section, Act of 1833, when there was neither father nor mother, brother nor sister, nor their descendants, either of the whole or half blood, but other collaterals or next of kin. Under that section, applying to collaterals more distant than brothers and sisters, the law makes no distinction between the whole or half blood, if they descend from a common ancestor. The courts, however, then, expressly say, ‘ It is sufficient where brothers and sisters inherit from each other, for then the whole blood are preferred.’ To whom do they' mean they are preferred ? Surely to the half blood, and that is the case before us. Do not all these parties claim to inherit from their deceased sister, Mrs. Flagg ? The judge of the Common Pleas, in his opinion reported, page 290, draws the same distinction. Again, in Lane’s Appeal, 4 Casey 487, Mr. Justice Woodward, arguendo, as to a question under a supplementary act, thus speaks of the purport of the Act of 1833: ‘ The words, “ when by existing laws entitled to inherit,” are introduced to preserve the distinction between collaterals of the whole and half blood, which is so anxiously maintained throughout the Act of 1833.’ And again, ‘ As if they had said we will have grandchildren of deceased brothers and sisters admitted to inheritance per stirpes, like children of deceased brothers and sisters, but they shall be grandchildren of deceased brothers and sisters of the whole or half blood, according to “ existing laws.” The whole blood first, the half blood afterwards.’</p> <p>“As we understand the statute, the following rules for the descent of real estate among collaterals are fixed, operating in the following order:—</p> <p>“ 1st. In default of issue and surviving husband or wife, it will vest in the father or mother for life.</p> <p>“2d. .After the death of father or mother, or if there be no father or mother, then in the brothers and sisters of the whole blood, and their descendants in fee.</p> <p>“ 3d. If there be no brothers or sisters of the whole blood oí their descendants, including grandchildren, then in the father and mother, if any, for life or in fee, according to the special circumstances of the case.</p> <p>“ 4th. If no brother, &c., of the whole blood or their descendants, and no father or mother, then in the brothers and sisters of the half blood, being of the blood of the first purchaser.</p> <p>“ Our statute of intestacy in its plain reading and meaning can lead to no other conclusions, and if the half blood cannot inherit under that statute, upon what can they found any existing claim Or right ? Their status is fixed under clear and plain limitations by the act, but even if a doubt be alleged as to this, the old laws of descent will not help them; and the Acts of 1794 and 1797, if not altered or supplied by that of 1833, under the facts now before us, will certainly give them no aid.</p> <p>“ In our opinion, in the present case, the half-blood brother ean have no claim. The brothers and sisters of the whole blood, and the child of the deceased one, are entitled to the property, and judgment in the case then is entered for the defendants.”</p> <p>The plaintiff removed the case to the Supreme Court, and assigned for error the entering of judgment for the defendants.</p> <p>cited Bevan v. Taylor, 7 S. & R. 397; Lewis v. Gorman, 5 Barr 165, 167; Hartman’s Estate, 4 Rawle 39; Hart’s Appeal, 8 Barr 37; Danner v. Shissler, 7 Casey 289.</p>

<p>Error to the Court of Common Pleas of Tioga county.</p> <p>This was an action of ejectment, commenced March 11th 1864, by Pardon Damon against William Bache and Albert Landis, for a tract of 117 acres of land.</p> <p>On the 22d of July 1847 Simon H. Landis contracted with Thomas J. Wharton for the purchase of the land in question. The purchase-money was to be $351, of which $35 were to be paid in hand ; the balance to be paid in four annual payments, the first to be made January 1st 1850. On the 28th of January 1860 William Bache, the defendant, became the owner of the legal title, and on the same day there was an agreement endorsed on the contract, that there was due upon it, January 1st 1860, the sum of $450.06, “ which shall be paid in five equal annual payments, from January 1st 1860.”</p> <p>On the 28th of June 1860, Bass & Clark recovered a judgment against Simon H. Landis for $769.05.</p> <p>On the 20th of May 1862, two payments of the purchase-money being due, Bache commenced an action of ejectment against Landis to enforce the payment of the purchase-money, in which Damon,-the plaintiff, appeared as attorney for Landis, the defendant. In this action Bache and Landis agreed that judgment be entered in favor of the plaintiff for the land in question, to be released and entered in favor of the defendant upon the payment of $517.56: $50 within thirty days, $100 in six months, and the balance in two equal payments at twelve and eighteen months. A fi. fa. was issued July 25th 1862 on Bass & Clark’s judgment, and an alias fi. fa. September 22d 1862, on which the land in question was levied on and condemned.</p> <p>On the 19th of November 1862, no money having been paid to Bache under his conditional judgment of July 21st 1862, he issued a hab. fac. against Simon H. Landis, and possession was delivered to Bache by the sheriff.</p> <p>On the 11th of November 1863 Bass & Clark issued a vend. ex. on their .judgment, to which the sheriff returned that he had sold the land ter Damon, the plaintiff, for $500. The deed was made to him December 1st. This was the title under which he claimed in this suit. On the 11th of July the plaintiff tendered Bache $575, and brought it into court.</p> <p>On the trial of this ejectment the plaintiff called Bache, who testified: “ Albert Landis is occupying under me. At the time the sheriff served the writ, the old man offered to occupy under me, and I kept him in possession; the old man was claiming under Simon; the old man occupied until his death; can’t tell when he died; I think he has been dead a year or more ; I have had his son Albert a tenant since his father’s death; there is no particular agreement with him for the payment of rent; I told him he must pay me something, and he said he would, but it was not said how much; I know there was talk of executions against Landis before I obtained the judgment in ejectment against him ; the ejectment was suggested by him and commenced at his request ; he said there were debts against him and judgments had been recovered against him, and he had been cheated, and he wanted I should recover the possession "and save a home for his parents; that he had an old father and mother, and they would be turned out, expecting, I suppose, that I would let him live there; his mother is still on the premises; I do not know of her removing from there.”</p> <p>The plaintiff requested the court to charge the jury: “ If they believe from the evidence that William Bache, knowing that Simon H. Landis was indebted to the plaintiffs in the judgment given in evidence by plaintiff, and that said judgment was a lien on his equitable title, and at the request of said Landis, the defendant commenced said action of ejectment, and by agreement with said Landis obtained a judgment to cut off said Bass & Clark judgment and others, if any; it was such a fraud upon lien-creditors as renders the said judgment in ejectment void as to a purchaser under a sale on said judgment against said Landis. And the plaintiff in this suit being such purchaser, after a tender of the purchase-money as given in evidence, is entitled to recover in this suit the land claimed in his writ, with costs.</p> <p>2. “ That under all the evidence in this case the plaintiff is entitled to recover in this suit.”</p> <p>The court (Streeter, P. J.) charged:</p> <p>“ There is no question of fact in this case to be submitted to the jury, and the jury are directed to find for the defendants.”</p> <p>The verdict was for the defendants. The plaintiff assigned the charge for error.</p> <p>cited: Hershey v. Weiting, 14 Wright 240 ; York Co. Bank v. Carter, 2 Id. 458 ; Deakers v. Barker, 5 Id. 284; Painter v. Drum„4 Id. 467 ; Mackason’s Appeal, 6 Id. 330; Smith v. Grim, 2 Casey-95 ; Pusey v. Harper, 3 Id. 470; Murphey v. Hubert, 4 Harris 56 ; Zerbe v. Miller, Id. 497; Garrison v. Monaghan, 9 Casey 234; Hollinshead v. Allen, 5 Harris 275; Drum v. Painter, 3 Casey 148; Jackson v. Summerville, 1 Harris 360; Bunn v. Ahl, 5 Casey 387 ; Graham v. Smith, 1 Id. 323 ; Ayer’s Appeal, 4 Id. 179; Stewart v. Freeman, 10 Harris 124; Martin v. Gernandt, 7 Id. 129; Moneure v. Hanson, 3 Id. 385; Fitzw-ater v. Stout, 4 Harris 22 ; Dean v. Connelly, 6 Barr 239 ; Allentown Bank v. Beck, 13 Wright 394; Abbey v. Dewey, 1 Casey 417. »</p>

<p>Error to the Court of Common Pleas of Tioga county.</p> <p>This was an amicable action of ejectment by Thomas J. Berry against Benjamin C. Wickham and Joseph Aiken, trustees of the estate of Thomas J. Berry, deceased, in which a case was stated for the judgment of the court on the following facts:—</p> <p>“On the 5th day of March 1853, Thomas J. Berry, of Tioga in said county, died leaving a widow, Phebe M. Berry, and an only child, Thomas J. Berry, the plaintiff in this suit, who was about twenty years old at the time of his father’s death, and who has since been married and now has two sons, the eldest about two years old. That said decedent also left one sister who is now living.</p> <p>“ The decedent owned at the time of his death about 320 acres of land, besides some personal property; and by his will, dated August 30th 1847, directed as follows :—</p> <p>“ ‘ I give and bequeath to my wife Phebe one-third of all my real and personal estate, to use, occupy and enjoy the same'so long as she remains my widow; and in case of her marriage or death, the remainder to Benjamin 0. Wickham and Joseph Aiken in trust for my son Thomas Berry, during his life, and at his death to his heirs in fee simple.</p> <p>“ ‘ I give and bequeath unto Benjamin 0. Wickham and Joseph Aiken, all the rest and residue df my estate, in trust nevertheless, to and for the use, support and maintenance of my son Thomas Berry; and in case of his death withoutjissue, to the use and support of my sisters and brother, iFTrving, or their survivor, at the happening of that event. I desire and direct my executors to support and educate my son Thomas out of and from the trust estate hereby created, and if my son Thomas so desires, to give him a collegiate education at such college as the said Thomas and my executors think best: to keep the farm and property without sale or division during the life of the said Thomas, and make the same as profitable as may be for him and his heirs, and at his and their death, to my sisters and brother, or such of them as may be living on the happening of the event as heretofore expressed.’</p> <p>“ At the date of the will the plaintiff was only about four years old, and his father then had living a brother and two sisters, but the brother and one sister soon after died, and one sister, plaintiff’s aunt, is still living. After decedent’s death, the trustees and executors assumed the duties of their appointment, but permitted said plaintiff to manage the property of said estate until part was sold under a judgment for a debt of the decedent and other debts of son and his mother, which they had contracted in the management of said estate. After said sale, there still being a large amount of judgments and debts against the son and said estate, about the 1st day of September 1866, on the application of himself and his mother and the trustees, the Orphans’ Court authorized them to borrow $5000 to pay said debts and judgments, &c., and possession of the premises was soon after delivered to the trustees.</p> <p>“ If in the opinion of the court the plaintiff is entitled to recover and hold said lot of land, judgment is to be entered for the plaintiff, and if in their opinion the balance of said $5000 should be expended in paying the debts of the plaintiff and his mother, the court shall so direct, &c.”</p> <p>The court, December 15th 1866, entered judgment for the plaintiff' for the land described in the case stated.</p> <p>On the other question stated, involving the disposition of a portion of the $5000, raised under the direction of the Orphans’ Court, the court, deeming that they had no power to decree distribution, gave an advisory opinion merely.</p> <p>The defendants removed the case into the Supreme Court and assigned for error the judgment of the court below that the plaintiff was entitled to the land.</p>

<p>1. An accommodation note, in the strict sense, is a loan of the maker’s credit without instructions as to the manner of its use.</p> <p>2. The defendant endorsed a note in blank and left it with a third person to be signed by the maker and used for a particular purpose: the maker took it from the depositary, without his knowledge, filled it up and gave it to the plaintiffs. Held, a fraud on the endorser.</p> <p>3. The plaintiffs held two notes against the maker, and he delivered to them the note in suit and another note, there was no evidence that time was given or the two notes surrendered. Held, that the plaintiffs were not holders in the usual course of business for a new or valuable consideration, and were not protected from the fraud of the maker.</p>

This was an action on the case, commenced July 24th 1861, by Jacob Titman against Thomas J. Sherwood, for criminal conversation with plaintiff’s wife. It appeared by the testimony for the plaintiff that he and his wife had separated about or before April 1st 1861.

This was an action of trespass commenced November 3d 1865, before a justice of the peace, by William H. Ives, against Jacob B. Chalker, Henry W. Howard, and Charles Stanford for taking a cow belonging to the plaintiff. Ploward, one of the defendants and others, were supervisors of Liberty township in Susquehanna county in 1864; on the 22d of October 1864, they offered a bounty of $300 to volunteers to be credited to the township, and levied a tax to pay the bounty.

In equity. The bill in this case was by George W. Leach against Joseph Brown and Henry Ansbacher. In the Supreme Court the question was between the plaintiff and Ansbacher only. The bill was filed March 13th 1865.

In the court below an action of ejectment was commenced, March 28th 1865, by George Fales against the Lackawanna Iron and Coal Company, for a tract of land containing about 372 acres. • The land in dispute was patented, September 5th 1794, to Jeremiah Warden and others, for Mary Wright: it was sold as unseated land for taxes in the name of Mary Wright, on the 14th of June 1836, to H. B. Wright, for $18.93.

<p>1. Parol evidence is not admissible to alter or contradict a writing, but may be received to explain and define the subject of a written agreement.</p> <p>2. In commercial transactions a house that receives and sells goods for another, guarantees the price, but gives no guaranty to make the price good. The credit of the house is pledged to the consignor and their credit is accepted as satisfactory when the consignment is made.</p>

. In the court below, Jonas Eberts and Jacob Garber, and Lavina his wife, in. her right, on the 20th of January 1865, brought an action of ejectment against Joseph Eberts and others, executors, &c., of Jacob Eberts, deceased, for a tract of land containing 150 acres.

Appeal of Samuel Yohe from the decree of the Court of Common Pleas of Northampton county, distributing the proceeds of the sheriff’s sale of the real estate of Charles Knapp. Knapp became the owner of a house and,lot in Easton about the 1st of March 1865. The house was old and in quite a dilapidated condition; the lot with the building being then estimated as worth about $300.

On the 13th of March 1866 a large number of the legal voters of Williams township petitioned the court for the appointment of commissioners “ to inquire into the necessity and propriety of dividing the township into two election districts.” Commissioners were accordingly appointed, who reported in favor of a division, and their report was confirmed nisi May 5th 1866.

<p>1. The Act of April 27th 1855, providing for appeals from the assessment of railroad damages, is repealed by the Act of April 9th 1856, on the same subject.</p> <p>2. Appeals from such assessments must be entered within 30 days from filing, not from the confirmation of the report.</p> <p>3. Acts which, although in pari materid,' grant a right conditioned on different things, are inconsistent; and the inconsistency operates as a repeal.</p>

<p>1. A railroad company claimed a right to construct their road without first making compensation or giving security to the landowner, alleging that he had given them license to do so, provided they would “ go on the west side of his house — against the hill side and high enough to save his water-power.” The height of the grade is a condition of the right to enter and construct.</p> <p>2. The burden was on the company to show what was the estimated height and thatthe height in fact did no injury to the water-power.</p> <p>3. Tire fact that the company located their road on the route designated by the landowner was not a waiver of his right to compensation or security before entering on his land, without performing the condition as to grade.</p> <p>4. Destruction of the water-power was not a consequence of construction upon a designated route, but of construction in violation of a designated grade.</p> <p>5. Where a railroad company, alleging a waiver, asks to divest a citizen of rights guarded by the Constitution, they should come into court, if not with a writing, with full, distinct and unequivocal proof of the waiver they allege.</p> <p>6. A corporation obtaining a concession to enter on condition of refraining from a particular injury in its nature irreparable and not readily estimated in damages, forfeits its license when it violates the condition, and should be restrained till it does equity.</p> <p>7. Pusey v. Wright, 7 Casey 387, analyzed.</p>

This was an action of assumpsit by James Sands and Emery Daily, for use of W. H. Crowell, against The American Express Company, brought in October 1865, to recover the value of a barrel saw, shipped by them with the said express company, from Pittsburg to Irvine, Warren county, Pa. When the saw arrived at Irvine it was cracked from 8 to 10 inches. On account of being thus broken the defendants refused to receive it.

In the court below Henry S. Urian brought an action of ejectment against Jonathan Boynton and James Forrest, to January Term 1858. Writs of error to the judgment in the case were taken by both the plaintiff and defendants. The case was tried at a special court before Wood, the president of the 20th district. Urian, the plaintiff, claimed under a warrant, January 24th, and survey, October 28th 1794; return, February 24th, and patent, April 10th 1795, to Henry Drinker.

<p>1. Where a settlement right has been made the basis of one paper title, its efficacy as an inceptive title is exhausted, and it cannot support another paper title.</p> <p>2. Part of a tract of land included in a settlement right was purposely thrown out in making the survey; this part was afterwards surveyed, August 9th 1844, as under the settlement right, but its acceptance was not procured, nor a patent issued until May 3d 1865: the title originated May 3d 1865. The survey of 1844 conferred no title.</p> <p>3. A warrant was located by the lines of a previous survey, lost or not returned, which were run upon the ground and correctly returned as the lines of a subsequent survey. This is not a chamber survey.</p> <p>4. The lines of the previous survey might be adopted and returned for the new survey as if the surveyor had traced them on the ground.</p>

<p>Error to the Court of Common Pleas of Clinton county.</p> <p>This was an action of ejectment by Lewis E. Wells against Samuel Smyth and Michael Stout, for a tract of 1100 acres of land in Leidy township, commenced January 13th 1865. The land had been surveyed, in pursuance of warrant No. 3888, to John Olden, issued July 17th 1793.</p> <p>The plaintiff claimed the land by virtue of a sale for taxes as unseated land.</p> <p>On the trial, before Linn, P. J., the plaintiff gave in evidence, “ List of unseated lands in Leidy township for the year 1858:— No. 3888, quantity 1100 acres ; name of warrantee John Olden ; valuation $1650.” Also the resolution of the commissioners at a meeting, May 14th 1858, fixing the rate for county tax for 1858 at 2J mills on the dollar, and fixing the day for appeal from the assessment for the several townships of the county; the day for Leidy being June 10th. Also assessments of the school directors of Leidy township for 1858, directed to the county commissioners, and for 1859, directed to the county treasurer. The clerk of the commissioners testified that the commissioners’ and treasurer’s offices were in the same room, where there is a vault in which the books and papers of both offices are kept; that the papers are on file in the office together and used for the same purpose, whether addressed to the commissioners or treasurer.</p> <p>The plaintiff then offered to prove the manner in which the assessments for state, county, road and school taxes were recorded in the commissioners’ books; “ that the taxes of 1858 or 1859, for which the tract in dispute was sold, amounting to $77.65, are the exact product of the mills thus assessed and fixed for county, state, school and road purposes upon the $1650 at which it has been shown to have been valued by the assessor of Leidy township and that the sum “ for which the tract in dispute was sold was made up from the rate fixed by the resolution of the commissioners in evidence, the rate fixed by law for the state tax — and the papers in evidence assessing the school and road taxes for the years 1858 and 1859 on the valuation returned by the assessor in evidence.” This offer was made in connection with the commissioners’ warrant of sale and the treasurer’s deed to plaintiff.</p> <p>The whole offer was rejected, and an exception noted. The plaintiff then offered the warrant of the commissioners, dated March 1st 1860, to the treasurer to sell “ tract in the name of John Olden, No. 3888,” and the deed of the treasurer, dated August 30th 1860, to the plaintiff for the same tract; this offer also was rejected, and an exception noted.</p> <p>The plaintiff having closed his evidence here, the court directed the jury to find for the defendants; to which direction an exception was taken and noted.</p> <p>The verdict was for the defendants, and judgment was entered on it January 20th 1866.</p> <p>The plaintiff removed the case to the Supreme Court; and assigned for error the rejection of his evidence, and the charge of the court.</p> <p>cited Foster v. McDivit, 9 Watts 844; Foust v. Boss, 1 W. & S. 505 ; Hubley v. Keyser, 2 Pa. B. 501; Stewart v. Shoenfelt, 13 S. & R. 360; Laird v. Hiester, 12 Harris 462; Cuttle v. Brockway, Id. 146; Miller v. Hale, 2 Casey 434, 437.</p> <p>cited The Mayor, &c., of Philadelphia v. Riddle, 1 Casey 259; Foster v. McDivit, 9 Watts 341; Foust v. Ross, 1 W. & S. 501; Hole v. Bittenhouse, 7 Harris 310; Hubley v. Keyser, 2 Pa. R. 501; Stewart v. Shoenfelt, 13 S. & R. 371; Cuttle v. Brockway, 12 Harris 147 ; Laird v. Hiester, Id. 463 ; Miller v. Hale, 2 Casey 432 ; McCall v. Lorimer, 4 Watts 351; Bratton v. Mitchell, 7 W. & S. 260; s. c. 1 Id. 310.</p>

<p>1. Where a conveyance was to be made of land, if the vendee should find oil upon it, it is to be construed that oil must be found within a reasonable time.</p> <p>2. Oil, like water, is not the subject of property, except in actual occupancy.</p> <p>3. A grant of water is not the grant of the soil on which it rests, and it passes nothing for which ejectment will lie.</p> <p>4. It is essential to an easement that there should be both a dominant and servient tenement.</p> <p>5. Generally a parol license is revocable at the will of the licensor; and it is revocable although a consideration has been paid for it.</p> <p>6. Even a parol license executed, may become an easement on the land, and where acts have been done in reliance upon a license, the licensor will be estopped from revoking it to the injury of the licensee.</p> <p>7. A license is a personal privilege and is not assignable ; an assignment by a licensee determines his right.</p> <p>8. McGuire granted to Baird a right to sink one or more wells on his land; and agreed to convey to Baird, if oil was found; also to grant him an exclusive right to sink wells on other land at $100 for every 10 years for every well Baird may continuously pump oil from; if he should fail to find oil, to have the right to remove his machinery, &c.; if oil were found, the right to pump to continue as the rent should be paid. Held, 1. To be a license to Baird. 2. That Baird having made improvements, McGuire could not revoke the license as to him. 3. That Baird having assigned the license, it was determined.</p>

<p>Error to the Court of Common Pleas of Lycoming county.</p> <p>This was an action of replevin, brought April 23d 1864, by Petor Herdic and others, doing business under the name of Herdic, Lentz & Whites, against William R. Young and others, doing business under the name of Young, Finley & Co., for 1,500,000 feet of .white pine saw-logs.</p> <p>The defendants gave bond and retained the logs. They pleaded “ non cepit and property.”</p> <p>In 1864, and previously, the plaintiffs and the defendants owned tracts of adjoining land in Potter county, containing 1000 acres ; the defendants’ was numbered 5821; the plaintiffs’ 5822.</p> <p>In the winter of 1863 and 1864 the defendants went into possession of their tract of land for the purpose of cutting saw-logs.</p> <p>Witnesses for the defendants testified that they put up a small .shanty or two, made some roads, and a temporary log-slide ; there was a family in the building till they quit; they boarded their men; built a stable and kept oxen there; they moved the shanty off after they were done.</p> <p>Whilst the defendants were there cutting logs, they got over the dividing line between the tracts, and cut 1,006,378 feet on the plaintiffs’ land, as the jury found.</p> <p>Some witnesses testified that the line of the tracts ran through “ the camp some that it ran through the shanty; some that the stable was in “the disputed territory.”</p> <p>The logs were floated down the Susquehanna into the Susquehanna boom, in Lycoming county, and when there the replevin was issued.</p> <p>The plaintiffs submitted, amongst others, the following point:</p> <p>3. Even if the cabin was built on plaintiffs’ land for the accommodation of the choppers, while taking off the timber, the land being previously wild and unseated, and the cabin and land were déserted by the defendants, and' their choppers, after the logs were cut and hauled from the land in dispute, and before this suit was commenced, then there was no such possession as can preclude the plaintiffs’ recovery..</p> <p>The court (Jordan, P. J.) answered: — “ If the cabin was built upon the plaintiffs’ land for the accommodation of the choppers, while taking off the timber, the land being previously wild land and unseated, and the cabin and land were deserted by the defendants and their choppers, after the logs were cut and hauled from the land in dispute, and before this suit was commenced, the possession was not such as will preclude plaintiffs’ recovery.”</p> <p>The defendants submitted, amongst others, the following points:</p> <p>2. If the jury believe the defendants cut the logs in question, under a claim of property in the soil whereon they grew, the -plaintiffs are not entitled to recover, and if that claim were really made, it matters not whether the claim were well or ill founded.</p> <p>3. If the jury believe that at the time the logs in dispute were cut, the defendants were in actual possession of the soil upon which they grew, under a claim of title thereto, the plaintiffs cannot recover.</p> <p>To these points the court answered: “ If the jury believe the defendants cut the logs in question under a claim of property in the soil whereon they grew, the plaintiffs are not barred from recovering, unless the defendants were in the actual possession of the land at the time the timber was cut, claiming title to the land. But if the possession was of the character mentioned in the court’s answer to plaintiffs’ 3d point, it would not bar plaintiffs’ recovery.</p> <p>There was a verdict for the plaintiffs for $4306.75.</p> <p>The defendants took a writ of error, and assigned the foregoing answers of the court for error.</p> <p>cited Powell v. Smith, 2 Watts 127 ; Mather v. Trinity Church, 3 S. & R. 509; Baker v. Howell, 6 Id. 476; Brown v. Caldwell, 10 Id. 114; Harlan v. Harlan, 3 Harris 514 ; Clement v. Wright, 4 Wright 250 ; Snyder v. Vaux, 2 Rawle 427 ; Wright v. Gruier, 9 Watts 175 ; Stevens v. Hughes, 7 Casey 381; King v. Baker, 1 Id. 188.</p> <p>cited Martin v. Porter, 5 M. & W. 351; Morgan v. Powell, 3 A. & E. N. S. 278; Wood v. Morewood, Id. 439 (43 E. C. L.. R. 734, 810); Harlan v. Harlan, 3 Harris 507 ; Clement v. Wright, 4 Wright 250 ; Brewer v. Fleming, 1 P. F. Smith 102; Wright «. Guier, 9 Watts 177 ; Elliott v. Powell, 10 Id. 453 ; Hall «. Powell, 4 S. & R. 456; Washabaugh v. Entriken, 10 Casey 74; Hole v. Rittenhouse, 1 Wright 118; Altemore v. Halffsmith, 9 Wright 128 ; Mather «.'Trinity Church, 3 S. & R. 509 ; Baker «. Howell, 6 Id. 476; Brown «. Caldwell, 10 Id. 114; Powell «. Smith, 2 Watts 127.</p>

<p>This was a writ of error taken by the plaintiffs in same case as the preceding (Young v. Herdic, p. 172).</p> <p>The logs for which the replevin was brought were hauled by the defendants, Young & Co., from the land where they were cut to a tributary of the Susquehanna, and floated to the Susquehanna Boom, in Lycoming county.</p> <p>On the trial, before Jordan, P. J., the plaintiffs offered to prove the value of the logs in the boom at Williamsport in the spring of 1864.</p> <p>The defendants objected ; the court sustained the objection, and the plaintiffs excepted.</p> <p>The court charged the jury, “ if they found for the plaintiffs, they were to estimate its value on the stump at the time and place where the timber was cut.”</p> <p>The plaintiffs assigned the rejection of their evidence, and the foregoing portion of the charge, for error.</p> <p>cited Snyder v. Vaux, 2 Bawle 423; Church v. Lee, 5 Johns. 348 ; Curtis .v. Groat, 6 Id."168 ; Babcock if. Gill, 10 Id. 287 ; Brown v. Eox, 7 Cowen 95; Sillsbury v.McKoon, 3 Corns. 379 ; Marsh v. Pier, 4 Bawle 290; Etter Edwards’,! Watts 63 ; Chaffee v. Sangston, 10 Id. 267; Moore v. Shenk, 3 Barr 13 ; Fisher v. Whoollery, 1 Casey 197; Baker v. Wheeler, 8 Wend. 505; F. N. B. 159,160.</p> <p>cited Baker v. Wheeler, 8 Wend. 505 ; Brown 1>. Fox, 7 Cowen 95 ; Curtis v. Groat, 6 Johns. 120 ; Church v. Lee, 5 Id. 348 Butler’s N. P. 32.</p>

<p>By an Act of Assembly, a railroad company was to receive from the state treasurer certain canal tolls, which were to cease when “the net proceeds of the road, after paying necessary expenses of motive power and superintendence, exceeded 6 per cent, per annum.” The net receipts, after paying expenses, were less than 6 per cent, on capital stock and funded debt, but exceeded 6 per cent, on the capital stock. Held, that the grant had ceased.</p>

<p>Appeal by Reuben Beitenman and Moses Detweiler from the decree of the Register’s Court of Berks county, affirming the decree of the register in admitting the will of John Beitenman to probate.</p> <p>The testator, John Beitenman, resided in Hamburg, Berks county. He was about eighty-four or eighty-five years of age at the time of his death. On the 30th day of July 1865 (which was Sunday), the testator, being in his usual state of good health, executed his will, in which he gave all his property to his nephew, John Alfred Beitenman, a son of his deceased brother, Frederick Beitenman. The scrivener, who was a subscribing witness, had been engaged occasionally in writing the will during the week preceding its execution, and finished it, filling date, &e., in the testator’s store on the day of its execution in the presence of the testator and the other subscribing witness. There was no apprehension of immediate danger of death, unless from the testator’s advanced age.</p> <p>The register admitted the will to probate, and the Register’s court affirmed the decree; this was the error assigned.</p> <p>cited Act of April 22d 1794, § 1, Purd. 924, pi. 3, 3 Sm. L. 177; 2 Parsons on Contracts 262; Weidman v. Marsh, 2.Hall’s Am. Law Jour. 408 ; Sparhawk v. The Union Pass. Railway, 4 P. F. Smith 408 per Strong, J., at Nisi Prius; Johnson v. The Commonwealth, 10 Harris 102; The Commonwealth v. Nesbit, 10 Casey 398; State v. Goff, 20 Ark. 289; Statute of Arkansas, Gould’s Dig. 373, § 1; Gangwere’s Estate, 2 Harris 417 ; Kepner v. Keefer, 6 Watts 231; Fox v. Mensch, 3 W. & S. 444 ; ITaydock v. Tracy, Id. 507; Commonwealth v. Kendig, 2 Barr 448; Sherman v. Roberts, 1' Grant 261; Shuman v. Shuman, 3 Casey 90 ; Baker v. Lukens, 11 Id. 146; Hadley v. Snevily, 1 W. & S. 479; Eransen’s Will, 2 Casey 202 ; Meriam v. Stearns, 10 Cush. 257 ; Pattee v. Greely, 13 Mete. 284; Bustin v. Rogers, 11 Cush’. 346 ; Lovejoy v. Whipple, 18 Yt. 378 ; Dodson v. Harris, 10 Ala. 566 ; Luke v. Clemens, 7 Blackf. 479; Tucker v. Mowrey, 12 Mich. 378; Adams v. Gay, 19 Yt. 358 ; Commonwealth v. Wolf, 3 S. & R. 48; Specht v. Commonwealth, 8 Barr 312.</p> <p>cited Act of April 22d 1794, supra ; Commonwealth v. Neshit, 10 Casey 409 ; 29 Oar. 2, c. 7 ; Logan v. Matthews, 6 Barr 417 ; 2 Parsons on Contracts 262; Gangwere’s Estate, 2 Harris 417; Johnston v. Commonwealth, 10 PÍarris 102 ; John B. Flagg v. Inhabitants of Millbury, 4 Cushing 243 ; Commonwealth v. Knox, 6 Mass. 76 ; Pearce v. Atwood, 13 Id. 354; Hooper v. Edwards, 18 Ala. 280; 4 Kent Com. 506; Commonwealth v. Kendig, 2 Barr 448 ; Bloxsome v. Williams, 3 B. & C. 232; Sherman v. Roberts, 1 Grant 261; Kepner v. Keefer, 6 Watts 231; Eox v. Mensch, 3 W. & S. 446; Adams v. Gay, 19 Yerm. 358; Lyon v. Strong, 6 Id. 219; Lovejoy v. Whipple, 18 Id. 379; Uhler v. Applegate, 2 Casey 140 ; Haydock v. Tracy, 3 W. & S. 507 ; Lea v. Hopkins and Barker v. Hopkins, 7 Barr 492; Shuman v. Shuman, 3 Casey 90: Fox v. Cash, 1 Jones 212; Baker v. Lukens, 11 Casey 146; The State v. Goff, 20 Ark. 285.</p>

s of Lycoming county. This was an action of trespass by Rachel McCarty and others against Tobias Shalemiller, for breaking their close and cutting and carrying away timber trees. The writ was issued January 6th 1865. On the 16th of April 1858, the title to the locus in quo was in William McCarty: the plaintiffs are his widow and heirs, he having died.

<p>1. The Act of April 11th. 1862, giving the Supreme Court the powers of a court of chancery in corporation mortgages, does not violate the Constitution of the United States, as to a mortgage dated before its passage, in which the remedy provided for the payment of interest is permissive not exclusive.</p> <p>2. The Act of 1862 is merely remedial for a breach of contract, and a party in default cannot complain that an additional remedy is given for his breach of contract.</p> <p>3. A railroad company entered into a contract for finishing their road in a specified time, and in accordance with its terms delivered their coupon bonds from time to time to the contractor as the road progressed; the road having been finished, but not within the time specified, it was held that they were estopped from setting up a claim for damages for the delay of finishing against holders of the bonds who had received them bonS, fide from the contractor.</p> <p>4. A railroad company constructed part of its road through another state and mortgaged all their rights, &e., in the whole road; the trustee in the mortgage being within the jurisdiction of the court, can be authorized and compelled to sell whatever interest of the company will pass under the terms of the mortgage.</p>

<p>1. No one can be excluded from carriage by a public carrier on account of color, religious belief or political relations or prejudice.</p> <p>2. If there be no clear and reasonable difference to base separation of passengers upon, it cannot be justified by mere prejudice.</p> <p>3. The right of a carrier to separate passengers is founded on his right of private property in the means of conveyance and the public interest.</p> <p>4. It is not an unreasonable regulation to seat passengers so as to preserve order and decorum and prevent contacts and collisions arising from natural and well-known repugnancies, which are liable to breed disturbances by promiscuous sitting.</p> <p>5. The right of the passenger is only that of being carried safely and with a due regard to his personal comfort and convenience; these are promoted by a sound and well regulated separation of passengers.</p> <p>6. It is the duty of a conductor to repress tumults as far as he reasonably can, and on extraordinai-y occasions he may stop the train and eject the unruly, but'he cannot arrest and detain offenders.</p> <p>7. Before the Act of March 22d 1867, the separation of black and white passengers in a public conveyance was the subject of a sound regulation to secure order, promote comfort, preserve the peace and maintain the rights of both carriers and passengers.</p>

<p>1. The owner of warrant 4881 sold it, but by mistake pointed out to Ms vendee 4880, an adjoining warrant on the north, as being the land sold. The vendor afterwards, as agent, bought for another person 4884, believing its looation to be 4881, which it adjoined on the south. The vendee of 4884 sold it out in lots, and by the same mistake pointed them out as being on 4881; improvements were made on some of these lots. Held, that the original vendor of 4881 and his vendee were estopped from claiming the true 4881, both as to the parts improved and those unimproved.</p> <p>2. The principles of equitable estoppel and maxims, Prior in tempore, potior in jure, and Melior est conditio possidentis, applied to this case.</p>

<p>1. The common law required the owner to keep his cattle within his close, and their intrusion on another’s possession was a trespass. This would be the rule in this state except for the Acts of Assembly imposing duties upon landowners other than those of the English common law.</p> <p>2. The owner of improved lands must fence them, both to restrain his cattle and to shut out the roving cattle of his neighbors.</p> <p>3. Unless improved lands are enclosed by a fence the owner is in default and cannot maintain trespass for damages by roving cattle.</p> <p>4. The provision of the Act of 1700, that the owner of such cattle shall make good all damage to the owner of the enclosure, if it be fenced according to law, implies that without such fencing there is no such liability.</p> <p>5. A recovery cannot be had in any case for damage which the negligence or misfeasance of plaintiff contributed to bring on himself.</p> <p>6. Improved lands are required to be fenced, and when it is the duty of the landowner to fence his land, he cannot recover for damages by stray cattle while he neglects the duty.</p> <p>7. Adams v. McKinney, Addison 258, and Dolph v. Ferris, 7W.AS. 367, commented on.</p>

<p>1. When an issue to try facts in divorce is asked it is proper for the court to direct the form of the issues and to require the other party to join in them. All that is necessary is that those adopted give the party a full and fair opportunity to prove all the facts of his case.</p> <p>2. A trial may be had on the issue formed by the libel and answer; but notice of special facts intended to be given in evidence may be required by either party. It is better issues should be special at first.</p> <p>3. It is the duty of the court to make a proper allowance to the wife, if she be not of sufficient ability, having regard to the ability of the husband: but this is entirely within the discretion of the court and is not the subject of review.</p> <p>4. So of ordering a case to trial against the objection that the allowance has not been paid. The remedy for this is by attachment.</p>

• This was an action of debt to November Term 1862, by the Commonwealth of Pennsylvania, with the suggestion of Elizabeth Everett and others, as plaintiffs, against Philip W. Hilgert, administrator, &c., of Philip Hilgert, deceased, James S. Dougal and Thomas Swenlc, on the official bond of Philip W. Hilgert, with the other defendants as his sureties in the penalty of $16,000, conditioned that the administrator should faithfully execute an order issued by the Orphans’ Court,…

<p>Error to the Court of Common Pleas of Northumberland county.</p> <p>On the 14th of April 1858, a judgment, Samuel Long against John Weikel and Henry Long, was entered in the Court of Common Pleas of Northumberland county, on a bond, with warrant of attorney, dated “ the 31st day of March 1858, for the sum of $400, conditioned that the above-named Henry Long and John Weikel shall and do well and truly pay unto David Billman and Daniel Sehlig, guardians of two minor children of George Long, deceased, the amount which is secured to said Billman and Sehlig, by bond or bonds, as guardians, with stay of execution and release of errors.”</p> <p>A scire facias was issued to August Term 1863, “ to revive judgment and continue lien, &e. Debt $400, interest from March 31st 1838.”</p> <p>In this scire facias are the following entries of record:</p> <p>“And now, to wit, 9th April 1863, John Weikel, one of the defendants above stated, appears to the above sci. fa. and confesses judgment of revival for the sum due in favor of plaintiff above named, and against himself, with interest, costs of suit, and release of errors, and a continuation of the original lien, according to law. Witness my hand and seal the day and year above mentioned. his</p> <p>“ John X Weikel.</p> <p>“ Cor. D. Beckley.” mark</p> <p>“ And now, to wit, August 18th 1863, Henry Long, one of the defendants above named, hereby appears to the above-stated writ of sci. fa., and confesses judgment in favor of plaintiff above named, against him for the sum of five hundred and twenty dollars a.nd fifty-three cents, with interest from April 9th 1863, with costs of suit, and release of all errors. Witness my hand and seal the day and year aforesaid. II. B. Long.”</p> <p>A fi. fa., No. 9, to January Term, having been issued on the judgment, Weikel applied to have it set aside.</p> <p>The court (Jordan, P. J.) set it aside January 18th 1864, saying, “ There is no judgment against him for any specified amount. The amount due from him must be ascertained in some way, and stated on the record. The extent of his liability is not properly before us.”</p> <p>Afterwards the following entry was made on the record :—</p> <p>“ And now, to wit, February 5th 1864, the prothonotary, at the instance of plaintiff’s attorney, ascertains the amount due upon the above-stated judgment at the date of the confession and entry of the judgment against John Weikel, to wit, April 9th 1863, to be $520.50, and so enters the same as the amount due upon said confession of judgment by the said John Weikel.</p> <p>“ J. J. Reimensnyder, Proth’y.”</p> <p>Weikel afterwards presented a petition to Judge Jordan, setting forth the execution and delivery of the bond and warrant by himself and Henry Long; that the object of the bond was to indemnify Samuel Long against the bonds therein mentioned, and that ho had not been compelled to pay any money on account of them ; that the original judgment was not intended to bear interest; that the judgment in the scire facias is interlocutory, and no amount has been legally ascertained; that he had paid part of the money on the bonds against which the bond in question had been given as indemnity; that the petitioner is unable to read ; was deceived at the time of the revival, and confessed the judgment for the original amount with interest through mistake, and prayed the judge to stay proceedings until the next court, that proceedings might be had for the relief of the petitioner. On the 18th of February 1864' the judge stayed the proceedings until the 20th, -which time he appointed for a hearing.</p> <p>On the 23d of September 1865 the court made this order: “ The judgment is sustained, but the court will hear proof as to alleged payments.”</p> <p>The order of the court was assigned for error.</p> <p>cited Eldred v. Hazlett, 2 Wright 32; Robeson v. Whiteside, 16 S. & R. 320; Burr v. Todd, 5 Wright 206; Gray & Crosby, 18 Johns. R. 219; Commonwealth v. Forney, 3 W. & S. 358 ; Curry v. Barer, 7 Barr 470; Martin v. Taylor, 1 W. C. C. R. 1; Massey v. Scholl, 1 P. O. C. R. 132, 135; 2 T. & H. Prac. 73; Dick o. Gaskill, 2 Whart. 187; Lewis v. Smith, 2 S. & R. 142; O’Neal v. O’Neal, 4 W. & S. 130 ; Williams v. McFall, 2 S. & R. 280 ; Grid-land v. Floyd, 6 S. & R. 412; Beltzhoover v. Commonwealth, 1 Watts 126 ; Shively v. U. S., 5 Watts 332 ; Nelson v. Lloyd, 9 Watts 24; Breidenthal v. McKenna, 2 Harris 160; Day v. Brawley, 1 Barr 429 ; Noble v. Laley, 14 Wright 284 ; Holden v. Bull, 1 Pa. R. 460; Harger v.. Commissioners, 2 Jones 251; Thornton v. Bonham, 2 Barr 102.</p> <p>cited Act of August 2d 1842, Purd. 577, pi. 36, Pamph. L. 459; 3 Chitty’s Practice 522; Sloman v. Gregory, 1 Dowl. & Ryl. 181; Ramsey v. Linn’s Ex’r., 2 Rawle 229 ; Buehler’s Heirs v. Buffington, 7 Wright 293; 1 Troub. & Haly 148 ; 3 Wils. 61; 2 Id. 372 ; 1 Doug. 316, n.; Gould v. Hamersley, 4 Taunt. 148; Berthen v. Street, 8 T. R. 326; Byrom v. Johnson, Id. 410 ; Robinson v. Cook, 6 Taunt. 336; Bank United States v. Thayer, 2 W. & S. 449; Noble’s Admr. v. Laley, 14 Wright 284; Lewis v. Smith, 2 S. & R. 155; Gray’s Heirs v. Coulter, 4 Barr 188; McCann v. Farley, 2 Casey 173 ; Statute 8 & 9 Wm. 3, ch. 11, § 8; Act of 1700, § 2, Purd. p. 577, pi. 33, 1 Sm. Laws 7; Fitzgerald v. Caldwell, 4 Dali. 252 ; Commonwealth v. Vanderslice, 8 S. & R. 452; Meason’s Estate, 5 Watts 464; Fries v. Watson, 5 S. & R. 220 ; Peril’s Executrix v. Wallis, 2 Dali. 252; Boyd v. Boyd, 1 Watts 365; Harris v. Clap, 1 Mass. 308.</p>

<p>1. The execution of a will having been proved, evidence was given that names directed by the testator to be inserted had been omitted, the court charged: “ In view, then, of all the facts, does the paper produced as the will of old Mr. Wallize, contain the disposition he made of his property. Are the^' 'nes of any of his children, whom he intended should have part of his property, omitted, and was the omission the inadvertence, oversight or intention of Esq. Barr. If this is not his will, the disposition he made of his property as communicated to Esq. Barr, then it ought to be set aside.” Held, to be error.</p> <p>2. Parol evidence as to mistakes in a will discussed in this case.</p>

<p>1. The rule in Black’s Appeal, 8 Wright 503, that partnership and separate creditors are each in the first place remitted to their appropriate fund, affirmed.</p> <p>2. A debtor partner is as much a debtor severally for what the firm has advanced him as he would be to another creditor.</p> <p>3. Where both partners are indebted to the firm, the debt of either is only the balance which he owes on an adjustment of the account between them; and this balance is all which in case of insolvency would go to the creditors of the firm.</p> <p>4. Houseal and Smith’s Appeal, 9 Wright 484, explained.</p> <p>5. Partnership creditors cannot come directly upon a fund of a deceased member of an insolvent firm, who was indebted to the firm. It is only the surviving partner who can claim as a separate creditor.</p> <p>6. The right of creditors of a deceased partner attached to his estate at, the time of his death and they must so remain. Í</p> <p>7. The surviving partner can claim only the half of the balance due by ¡ the deceased partner to the firm. '</p> <p>_ 8. The surviving partner’s right to come on the individual fund stands as it did at the partner’s death, and cannot come in for unpaid debts due by the firm.</p>

On the 21st of November 1864, Jacob G. Oldweiler and others petitioned the Court of Common Pleas of Lancaster county, stating that they had subscribed and paid money in pursuance of an agreement and understanding of a meeting of citizens of West Donegal township, held in January or February 1864, that if any persons subscribed money to raise volunteers under a requisition made by the President of the United States, and the state should pass a law authorizing the assessment…

This was an action of assumpsit between D. Jayne & Son, plaintiffs, and David Mickey, defendant, in which the following facts, in the nature of a special verdict, were agreed upon by the parties:— “ The plaintiffs, D. Jayne & Son, are the proprietors of Jayne’s Family Medicines, See., residing in Philadelphia, and are in the habit of consigning their medicines to country storekeepers to sell for them on commission, the latter only accounting to them for such goods as they…

This was an action on the case by M. G. Wenger, brought November 19th 1864, against the United States Telegraph Company. The plaintiff employed George H. Reed, a broker, of the firm of Reed, McGrann & Co., to order for him 50 shares of North Western Railroad stock, and 50 shares of Prairie du Chien stock. He testified that he went to the office of the company to order it.

<p>Appeal from the decree of the Court of Common Pleas of Lancaster county. In equity.</p> <p>David Eckman brought his bill, March 10th 1864, against Benjamin Eckman and Daniel Eckman, Jr.</p> <p>The bill averred that the complainant was seised in fee of a tract of 100 acres of land, was unmarried and without children, and that the defendants' are his nephews; that the defendants’ father devised to them a tract of above 100 acres of land; that the complainant, from feelings of kindness, prior to September 6th 1869, made a parol promise to them that if Daniel Jr. would convey to Benjamin his interest in the farm devised by their father, and Benjamin would convey to Daniel, Jr., his undivided half of the farm about to be conveyed to them by the complainant, he would convey to them his said tract of land in fee, subject to his right to retain the rents and profits during his life; that in pursuance of his promise, the complainant, on the 6th day of September 185.9, executed to defendants a deed for his land, subject, as above mentioned, for the nominal consideration of $8000, “ which he intended to deliver to the defendants upon their performance of the conditions upon which he promised to make the conveyance ;” that the deed was sent by the complainant to John Strohm, a conveyancer, to be held until the necessary writings were executed by the defendants, when all the writings were to be delivered at one time to the parties entitled to them in completion of the arrangement, but that Daniel, Jr., refused to perform his part of the condition; the whole arrangement failed, and the deed was never delivered ; that no part of the consideration was intended to .be paid, but it was introduced into the deed as a mere matter of form. The bill further averred that after the arrangement thus failed, the complainant demanded the deed, but that Strohm, under the instructions of Daniel, Jr., refused to deliver it to the complainant; subsequently, by instructions from Daniel, Jr., caused it to be recorded, and afterwards delivered it to the complainant.</p> <p>The bill prayed that the deed and the record of it be declared null and void, and that the record may be directed to be cancelled.</p> <p>Daniel, Jr., filed an answer, admitting the devise by his father, who. died August 15th 1862, and averring that the complainant “ executed and delivered” to the two respondents the deed of his land as stated in the bill, and the deed was immediately handed to Jacob Eckman for convenience and safe keeping, and that it remained in his possession until his death, except for a short time, when taken by Daniel, Jr., to counsel for examination; that the conveyance was made in pursuance of an amicable family arrangement between the complainant and his brother; the answer admitted that no part of the $8000 has been paid, or was intended to be; but denied that the deed was made in pursuance of promise or condition of the two respondents conveying the land to each other, as alleged in the bill; the answer further averred that after the death of their father, Benjamin proposed to Daniel, Jr., to make an amicable partition of the two plantations; Benjamin to take that devised by their father, and Daniel, Jr., that conveyed by complainant, to which Daniel, Jr., agreed, on condition that Benjamin would pay to complainant one-half the rents and profits of his farm during his life, to which Benjamin at first assented, and for the purpose of carrying out the arrangement, the deed from the complainant, which after the death of their father came into the possession of Benjamin, was handed by him to Strohm to draw the necessary papers, but that Benjamin afterwards refused to carry out the agreement for partition; that the propriety of recording the deed was suggested by Strohm, and at the request of Daqiel, Jr., it was recorded, and afterwards returned to the custody of Benjamin; he denied that the deed was sent by the complainant to Strohm, and averred that the deed was never in the possession of the complainant after its execution. The answer further alleged that the complainant is above eighty-three years of age, had become enfeebled in intellect, and his mind and memory much impaired; that Benjamin, taking advantage of this weakness, had, by fraudulent misrepresentations, &e., prejudiced the complainant, and alienated his affection from Daniel, Jr., and unduly influenced him to abrogate the disposition of his property made by his deed, in order to make a disposition more favorable to Benjamin, and that the suit was brought under such undue -influence.</p> <p>Benjamin answered, admitting all the material- allegations in the bill, and denying that he ever refused to deliver the deed for cancellation, or ever claimed the benefit of it; saying that he does not know that Daniel, Jr., claims any title under the deed,but is informed and believes that he occupies the farm under a lease from complainant.</p> <p>The complainant replied by a general traverse. An examiner was appointed, and much testimony was taken bearing upon the arrangement made by the complainant, and the delivery of his deed.</p> <p>The court below dismissed the bill, which, upon an appeal by the complainant, was assigned for error.</p> <p>— The jurisdiction of a court of equity in this case is proved by Acts . of 13th June 1840, § 39, Pamph. L. 671; 16th April 1845, § 3, Pamph. L. 542; 14th February 1857, § 1, Pamph. L. 39, Purd. 402, pi. 5, 6,11. The cancellation or delivery of instruments falls within the heads of equity jurisdiction in cases of fraud, accident and mistake: Brightly’s Eq. § 119 ; 2 Story’s Eq. Jur. § 692-700 ; Yard v. Patton, 1 Harris 281; Duncan’s Appeal, 7 Wright 67.</p> <p>There being in this case a general replication, the answer may be read by plaintiff to support his case: Brightly’s Eq. §§ 717, 720, 721; 2 Danl. Ch. Pr. 399, 400, 404.</p> <p>Where the answer, admitting or denying the facts in the bill, sets up other facts in defence or avoidance, such answer is no proof of the facts thus stated: Eberle v. Groff, 9 Harris 252 ; 2 Story’s Eq. Jur. § 1529; Coleman v. Boss, 10 Wright 180.</p> <p>The deed was delivered as an escrow, a writing which is not to take effect as a deed till the conditions be performed: 2 Bl. Com. 37.</p> <p>To make the delivery conditional, it is not necessary that any express -words should be used at the time; the conclusion is to be drawn from all the circumstances : Murray v. Earl of Stair, 2 B. & C. 88; Johnson v. Baker, 4 B. & A. 440 ; 4 Kent Com. 454 ; Boardman v. Dean, 10 Casey 254.</p> <p>The general rule that the answer of one defendant in chancery cannot be read against his co-defendant, does not apply where they have a joint interest: 1 Greenl. Ev. § 178 ; Cross v. Bedinfield, 12 Sim. 35; Osborn v. U. S. Bank, 9 Wheat. 738, 832.</p> <p>It was necessary to make Benjamin a party defendant. On his answer and disclaimer complainant is entitled to a decree against him. If against him, it must be also against Daniel: Green v. Pledger-, 3 Hare 172; Duncan’s Appeal, 7 Wright 67.</p> <p>It is no objection to a decree for plaintiff that it may settle a controversy between the defendants: Lord Eldon, 2 Sch. & Lef. 718.</p> <p>— It is a strict • rule that the answer of one defendant shall not be read in evidence against another ; the reason being that there is no issue between the parties, and there has been no opportunity for cross-examination : Gresley’s Eq. Ev. 29, 338; 11 Lib. of Law & Eq. 231. There is no exception to this rule except the case of partners, or where a party comes in as the successor of another post litem motará, as in Osborn v. U. S. Bank, 9 Wheat. 738; Hill v. Adams, 2 Atk. 39 ; Chewett v. Jones, 6 Mad. 267 ; Montague v. Hill, 4 Russ. 128; Morse v. Royal, 12 Ves. 355; Field v. Holland, 6 Cranch 8; Clark’s Ex’rs. n. Van Reimsdyke, 9 Id. 153 ; Christie v. Bishop, 1 Barb. Oh. R. 105, 120 : Winters v. January, Litt. Sel. Cas. 13.</p> <p>The oath of a single witness cannot prevail against the distinct- and positive assertions contained in the answer: Gresley’s Eq. Ev. 4, 227; 11 Lib. of Law & Eq. 3, 156; Eberly v. Groff, 9 Harris 251.</p> <p>A deed may be delivered to the party himself to whom it is made, or to any other person, by sufficient authority from him ; or it may be delivered to any stranger for and on behalf and to the use of him to whom it is made without authority: Shep. Touch. 57; 4 Cruise’s Dig. 28, tit. Feed, ch. 2, § 52.</p>

This was an action of trespass q. c. f., brought to December'2d 1864, by John Groff, to the use of Charles Achison, against William Ralston. The action was for timber cut by the defendant on land which the plaintiff claimed to own. The plaintiff’s title was under two warrants to Calhoun, one in 1753 for 150 acres, surveyed March 26th 1753, — the other in 1794, for 25 acres surveyed October 8th 1823 ; — both patented as one tract, April 4th 1844.

This was an action of debt by John A. Bigler against Samuel A. Elickinger, to November Term 1866, on the following note: — ■ “ Mechanicsburg, June 29th 1864. “ Ninety days after date I promise to pay to the order of John A. Bigler & Co. nine hundred dollars at the Harrisburg Bank; value received. “ Samuel Elickinger.

This was an amicable action between Jacob Stouffer, plaintiff, and Abraham Lamberton, defendant, entered April 21st 1865, in which the following case was stated for the opinion of the court, to be considered in the nature of a special verdict.

<p>1. A conductor of private freight cars not in employ of a railroad company, at the request ol the (company’s) conductor of the train, cut loose the cars following his own, fell off the train and was injured. The court charged that “ if the injury was not caused by drawing the bolt, but by the negligence or misconduct of the engineer in increasing the motion of the cars with a violent, unnecessary and unusual jerk, after the plaintiff had resumed his proper position on the car, such as he could not anticipate and guard against, he might recover.” Held, not to be error.</p> <p>2. The plaintiff, after performing the duty he voluntarily undertook, having resumed his proper place as a passenger, became entitled to the protection which such relation gave him.</p>

<p>Error to the Court of Common Pleas of Cumberland county.</p> <p>This was an amicable action and case stated for the opinion of the court, filed in December 1866, between Maria Hettrick, plaintiff, and Jesse. Hettrick, executor of Abraham Hettrick, deceased, defendant, in which the following facts were agreed upon to be considered in the nature of a special verdict:—</p> <p>“ Maria Hettrick, the plaintiff in the above case, was legally married to Abraham Hettrick on the 9th day of May 1816. From that day until the month of April 1839 she lived and cohabited with him as his wife. At that time she left her said husband, and on the 21st day of February 1845 she applied to the Court of Common Pleas of Cumberland county for a divorce, a mensá et thoro, from the said Abraham Hettrick, and for alimony, on the ground of cruel and barbarous treatment. On the 13th day of December 1845 the court made the following decree :—</p> <p>“ ‘ And now, to wit, 13th December 1845, the parties agree that all the allegations and facts stated in the petition and pleadings be withdrawn, and that the decree for the payment of alimony be made with the same effect as if the cause had been tried and a verdict for the plaintiff; and the parties agree that the following be the decree of the court: That the said Abraham Hettrick do pay or cause to be paid to the said Maria Hettrick the sum of $150 in full compensation for the support of herself, and payment of her own expenses up to the day of the date hereof; and further, that he will .pay or cause to be paid, on the 1st day of January 1847, the sum of $200, and on each 1st day of January thereafter, the sum of $200, and this proceeding and agreement to have the same force and effect as if it had been attained by an adverse proceeding and decree of the court. And the prothonotary is hereby authorized to enter the same upon the record of the Court of Common Pleas.’</p> <p>“ The said sum of $150 for expenses was paid by Abraham Hettrick, and the said sum of $200 was paid regularly on the 1st day of January of each year, up until the 1st day of January 1866. Abraham Hettrick died on the 15th day of October 1866, having made a will, in which he appointed the defendant, Jesse Hettrick, his executor, and letters testamentary were issued from the register of said county to the said Jesse Hettrick, and the plaintiff notified said executor that she claimed $300 in money, together with her interest in the real and personal estate of said decedent. The plaintiff therefore claimed $300 of the personal property of said decedent, under the laws of the Commonwealth of Pennsylvania. If the court he of opinion that the plaintiff is entitled to recover, then judgment for the plaintiff for $300 ; hut if not, then judgment for the defendant.”</p> <p>The court (Graham, P. J.) entered judgment for the plaintiff for $300 ; which, upon removal of the ease to the Supreme Court by the defendant, was assigned for error.”</p> <p>cited Diehl v. Ihrie, 3 Whart. 148; Act of April 14th 1851, § 5, Purd. 281, pi. 58, Pamph. L. 613 ; Spier’s Appeal, 2 Casey 233 ; Odiorne’s Appeal, 4 P. F. S. 175; Dillinger’s Appeal, 11 Casey 359.</p> <p>cited Cambria Iron Co. v. Tomb, 12 Wright 391; Diehl v. Ihrie, 3 Wh/ 148 ; Odiorne’s Appeal, 4 P. F. Smith 175; Act of April 14th 1851, supra; 2 Am. L. R. 510; Spier’s Appeal, 2 Casey 233; Dillinger’s Appeal, 11 Id. 357; Bishop on Mar. & Div. §§ 569, 570, 776, 791; Butler v. Butler, 1 Pars. 329; Compher v. Compher, 1 Casey 31; Yanleer v. Yanleer, 1 Harris 211; Nevin’s Appeal, 11 Wright 230.</p>

<p>Appeal by S. M. Brua, from the decree of the Court of Common Pleas of Lancaster countjj^^aafeiBfring the report of auditors, making distribution of the moneys in the hands of John Quigley and John Kauffman, assignees of Gideon Kauffman.</p> <p>GideonJ^uffman, having made an assignment for the benefit of credjáÉ^^Be assignees on .the 11th day of May 1866, presented to the court their account, showing a balance of $6598.08 in their hands, and auditors were appointed to distribute it amongst the creditors.</p> <p>The controversy in the case was upon the following written contract and notes:—</p> <p>“Lancaster, April 25th, 1863.</p> <p>I have this day sold and agreed to deliver to J. S. Hollinger, or to his order, twenty-five days from this date, two hundred shares Harlem Railroad common stock at the rate of sixty dollars per share. Gideon Kaueeman.</p> <p>$1000. Lancaster, April 25th 1863.</p> <p>Twenty-five days after date, I promise to pay J. S. Hollinger, or hearer, one thousand dollars, without defalcation, for value received. Gideon Kaueeman.</p> <p>$1000. Lancaster, May 7th 1863..</p> <p>Thirty days after date, I promise to pay to the order of J. S. Hollinger, one thousand dollars, without defalcation, value received. Gideon Kaueeman.</p> <p>Endorsed, J. S. Hollinger.</p> <p>$1000. Lancaster, May 7th 1863.</p> <p>Thirty days after date, I promise to pay to the order of J. S. Hollinger, one thousand dollars without defalcation, for value received.</p> <p>Gideon Kaueeman.</p> <p>Endorsed, J. S. Hollinger.</p> <p>$1500. Lancaster, May 9th, 1863.</p> <p>On the first day of April, one thousand eight hundred and sixty-four, I promise to pay to J. S. Hollinger, or order, fifteen hundred dollars, with interest, without defalcation, for value received.</p> <p>Gideon Kaueeman.</p> <p>Endorsed, J. S. Hollinger.”</p> <p>The auditors reported that D. G. Swartz was the holder of the notes and claimed a dividend on them, as having come to his hands as collateral security for a claim due him from Hollinger, amounting on April 13th 1866, to $2869.54. The note of April 25th 1863, was given as collateral security for the performance of the written contract of the same date. * * *</p> <p>"It may he, that the contract and note formed features of an operation by Kauffman, known in stock circles as selling short but the vice of that was simply a moral one, and the auditors are unable to detect in the note anything like a failure or deficiency of consideration.”</p> <p>By an "amended report” the auditors found</p> <p>“That all of the so-called Hollinger notes’ derived^B^k origin from the same transaction, and are all alike free frornlM^ legal, vice in their creation, or any deficiency in their consideration. As stated in the original report of auditors, the first of these notes, dated April 25th 1863, for one thousand dollars, at twenty-five days, payable to J. S. Hollinger or bearer, was given as collateral security for the performance of a written contract of the same date, by which Kauffman declared that he had sold, and engaged to deliver to Hollinger in twenty-five days, two .hundred shares of Harlem Railroad common stock at $60 per share. The evidence, so far as it reaches the remaining three ‘Hollinger notes,’ places them on no worse footing than the first. Shortly after the execution of the contract and of the first note, Harlem stock commenced, and for some time continued to rise in market value, and as the first note was given as ‘ a margin,’ the others were given to make good the ‘ differences,’ or to replenish the ‘ margin’ from time to time exhausted by the rise in the price of the stock. Doubtless the contract and four notes were the component parts of a stock-gambling transaction, in which Kauffman in effect betted that in twenty-five days Harlem stock would sell at less than $60 per share ; but viewed in the light of legal principles and precedents, the contract was one which the parties were free to make, and the obligations created by it, and the subsequent notes are in law untainted by any fraud, deceit or want of consideration. That Mr. Swartz may have received them after maturity, signifies nothing, for there is nowhere any evidence of any other transaction or of any equities between Kauffman and Hollinger.”</p> <p>Dividends were therefore awarded to Swartz on the notes, and the Court of Common Pleas, (Hayes, A. J.,) on exceptions confirmed the report.</p> <p>On appeal the decree of confirmation was assigned for error.</p> <p>cited Story on Promissory Notes, § 189 ; Porter v. Gunnison, 2 Grant 297.</p>

<p>1. Brown agreed to buy flour for plaintiffs and received from them money for it; defendants, at his request, no price being agreed on, sent him 65 barrels to a station on the railroad to go to plaintiffs at Reading, and directed the agent at the station to load it; about the time the loading had been completed, but before the car had been closed or moved from the siding, the defendant, hearing that Brown was insolvent, came to the station, directed the loading to stop and had the flour shipped on his own account to Philadelphia. Held, that the court should have charged that the delivery was not final and complete until the flour had passed wholly out of the power of the defendant into the possession of the railroad company for transportation to Reading.</p> <p>2. Completeness of delivery to Brown was not a test of delivery to the plaintiffs.</p> <p>3. Circumstances of alleged delivery examined and discussed.</p>

<p>Error to the Court of Common Pleas of Cumberland county.</p> <p>This was an action of ejectment brought to August Term 1865, by William C. Houser against Mary Lamont and others for a house and lot in Mechanicsburg.</p> <p>The plaintiff, to maintain the issue on his part, proved the sale of the property as the estate of Edward Lamont, deceased (who, it was admitted, died seised of it), by his administrator, under an order of the Orphans’ Court, for the payment of his debts, to Solomon G-. Bowman for $1875. He also .gave in evidence a deed to Bowman for the property, dated March 18th 1862; also a deed dated December 10th 1862 from Bowman to Houser, the plaintiff, for the property, and rested. •</p> <p>The defendants then called Bowman, who, under exception both to his competency and the matter offered to be proved by him, testified, that he bought the property at the'administrator’s sale for $1875; and afterwards, on the request of Mary Lamont, the defendant, who was a sister of the defendant, he made a verbal agreement with her to let her have the property for what he gave for it, he to hold the deed as security; that she paid him $975, and also that he credited her with $74, the balance of the rent of the house, after deducting the interest due him on the unpaid purchase-money, part of the house being occupied by her without payment of rent, and the remainder occupied by other persons who paid rent; that in the fall of 1862, wishing to realize the money due him, he made an arrangement with D. W. Boss to take his claim, tolling him that he (Bowman) held the deed as security for the money, and that Boss might hold it in the same way. When the arrangement was communicated to the defendant, she said she preferred Houser, the plaintiff; that Bowman then gave Houser a deed upon the same condition on which he had held his own, and with the understanding that Houser was to hold the property as he (Bowman) had held it; that the amount then due Bowman of the purchase-money was $825.27, which Houser paid; Houser at the same time gave Miss' Lamont this paper: — ■</p> <p>“ This is to certify that at the expiration of three years from the date hereof, there being no loss to me in the purchasing of the' homestead of Edward Lamont from Solomon G. Bowman, there shall then be due and-owing to Mary Lamont the sum of $975, in current bankable paper of the state of Pennsylvania. In witness whereof I have set my hand and seal this 11th December 1862.</p> <p>$975. “ W. C. Houser, [seal.]”</p> <p>There was much other evidence of a similar kind received under exception, showing repeated recognitions by Houser, by verbal acknowledgments and acts, that he held the property as security for the purchase-money owing by the defendant to Bowman, and advanced by him to Bowman. There was evidence that Houser discouraged Boss from loaning the money; that Houser offered the defendant $1800 for the property, besides the claim he had against her ; and that afterwards he said he had had legal advice that he could hold the property as his own.</p> <p>At the trial the defendant paid into court the amount alleged to be due on account of the purchase-money.</p> <p>The plaintiff submitted these points, which were answered in the general charge :—</p> <p>“ 1. Taking the whole evidence in the case it does not establish such a resulting trust in favor of Mary Lamont as can be enforced in this action, or as will entitle the defendants to a verdict.</p> <p>“ 2. The whole evidence establishes but an imperfect and incomplete parol agreement for the sale and purchase of the property in dispute which cannot be specifically executed or enforced in this action of ejectment, and therefore the plaintiff holding the legal title to the property is entitled to a verdict.”</p> <p>The defendants’ 3d point, which was affirmed, was — •</p> <p>“ That if the plaintiff had knowledge of the agreement between S. G. Bowman and Mary Lamont, and a part payment of the purchase-money by her, and he agreed to loan her the balance of money due to said Bowman, and took a conveyance of the property to himself as a security for such loan, such deed, although absolute in its terms, is but a mere security for the money so loaned, and he cannot recover in this suit.”</p> <p>The court (Graham, P. J.), after recapitulating the evidence, charged—</p> <p>“ The evidence of Mr. Bowman shows very clearly that the parol agreement between himself and Mary Lamont for the sale and purchase of the property in dispute, did not establish such a resulting trust in Mary as to justify a decree of specific performance. It is defective in several particulars. Possession was not taken by Miss Lamont under and in pursuance of the agreement. There was no time fixed for the payment of the purchase-money, and Mr. Bowman gave his notes to Miss Lamont for the money paid by her as for a loan, and did not acknowledge it as a payment of a pre-existing debt. There was no mutuality of obligation, for had Miss Lamont refused to take the property, she held the means of recovering the money paid for which she had the notes of Mr. Bowman. And when Bowman conveyed to Houser it was part of the agreement between them that Houser was to take up Bowman’s-notes in the hands of Miss Lamont and substitute his own papers, which he did, and handed to Bowman the notes he had given to Miss Lamont. We therefore say to you in the language of plaintiff’s 1st point, that the whole evidence in the case does not establish such a resulting trust in favor of Mary Lamont, as will defeat plaintiff’s recovery on that ground.</p> <p>“ In answer to plaintiff’s 2d point we say that the evidence establishes but an imperfect and incomplete parol agreement, which cannot be specifically executed or enforced in this action of ejectment. But we cannot say to you as requested in the latter part of this point: That because the plaintiff'holds the legal title he is entitled to recover. There is another ground of defence upon which you have heard much evidence, and if established clearly and satisfactorily may defeat a recovery. The defendants contend that although the deed from Bowman to Houser is upon its face an absolute conveyance, that it was not so intended either by Houser or Bowman, but was substituted for a mortgage and received by Houser, not as a bond fide purchaser of the property, but as a security for the money paid by Houser to Bowman for Mary Lamont. To establish this the evidence of Bowman and the declarations of Houser are relied on. That Houser, when he applied to others to pay the claim of Bowman, requested them to furnish the money for Miss Lamont, and take the deed as security for the money advanced, not to purchase the property from Bowman. [And after he had paid the balance due to Bowman he stated to a number of witnesses, and to some of them after the difficulty about the property occurred, not that he had purchased the property from Bowman, but that he had paid him the balance due, and taken the deed to secure the money advanced by him. If this was the truth of the transaction, if he took the deed from Bowman, not as a boná fide purchase, but only to secure the money paid for Miss Lamont, then in law it would be considered in the nature of a mortgage, as a security for money loaned, and the defendant having tendered the money to Houser and deposited it subject to the order of court, this would defeat a recovery, and your verdict under these circumstances ought to be for the defendants.”]</p> <p>The verdict was for the defendants.</p> <p>The plaintiff removed the case to the Supreme Court, and assigned for error the admission of the evidence excepted to, the answers to the plaintiff’s 2d, and defendants’ 3d points, and the part of the charge enclosed in brackets.</p> <p>cited Barnet v. Dougherty, 8 Casey 373; Robertson v. Robertson, 9 Watts 41; Myers v. Byerly, 9 Wright 372; Boyer v. Smith, 3 Watts 449; s. c., 5 Id. 55; Greenlee v. Greenlee, 10 Harris 227; Blakeslee v. Blakeslee, Id. 243; Act of 22d April 1856, § 6, Purd. 654, pi. 13, Pamph. L. 532; Steere v. Steere, 5 Johns. Ch. 11-12; Stewart v. Brown, 2 S. & R. 461; 4 Kent’s Com. 306 ; Fox v. Heffner, 1 W. & S. 376 ; Haines v. O’Conner, 10 Watts 320; Zentmyer v. Mittower, 5 Barr 409-10; Kisler v. Kisler, 2 Watts 325; Jackman v. Ringland, 4 W. & S. 150; Foote v. Colvin, 3 Johns. 222; Jackson v. Bateman, 2 Wend. 573; Wilson v. Clark, 1 W. & S. 554; Patton v. Develin, 2 Phila. Rep. 103; Parrish v. Koons, 1 Parsons 91; Todd v. Campbell, 8 Casey 255 ; Bowers v. Oyster, 3 Pa. R. 240; Lynch v. Cox, 11 Harris 265 ; Chadwick v. Felt, 11 Casey 305 ; Hill on Trustees 144-147; McKowen v. McDonald, 7 Wright 443 ; Postlethwait v. Frease, 7 Casey 474; Edw'ards' v. Edwards, 3 Wright 377 ; Bailey v. Boulcott, 4 Russ. 345 ; Kilpin v. Kilpin, 1 M. & K. 537 ; Tritt v. Crotzer, 1 Harris 457 ; Hill on Trustees 97; 2 Sug. on Vend. 131; Kellum v. Smith, 9 Casey 164-5; Kunkle v. Wolfersberger, 6 Watts 126.</p> <p>cited Horn v. Pattison, 1 Grant’s Cases 304 — 6; Alden v. Grove, 6 Harris 387 ; Kunkle v. Wolfersberger, 6 Watts 126 ; Reed -v. Dickey, 1 Id. 152 ; Todd v. Campbell, 8 Casey 255; Hiester v. Maderia, 3 W. & S. 387-8; Sheriff v. Neal, Id. 534; McBurney v. Wellman, 42 Barb. 390; 4 Am. Law Reg. 382; Reitenbaugh v. Ludwick, 7 Casey 131.</p>

<p>Certiorari to the Court of Common Pleas of Lancaster county.</p> <p>In the court below proceedings were commenced April 28th 1866, by the petition of Abraham Bruner, setting forth that he was the owner of a wharf lot in Columbia, used as a lumber yard and for other purposes, lying between Front street and the -Susquehanna river; that the Pennsylvania Railroad Company having filed a bond to indemnify the petitioner had located and nearly constructed a branch railroad through his land above mentioned; and prayed for a jury to assess his damages.</p> <p>John Cooper, Washington Righter and Grottleib Sener, on the same day presented like petitions, and the same viewers were appointed on all the petitions.</p> <p>The viewers reported “ that they viewed the premises, and having estimated the quantity, quality and value of the land occupied or taken by the said Pennsylvania Railroad Company according to draft hereto annexed, viz.: a piece of ground on the west side of Front street in the borough of Columbia, commencing, &c., (describing its boundaries) * * and with a due regard to and making a just allowance for the advantages which may have resulted or which may seem likely to result to the owner of the land aforesaid in consequence of the construction of the said branch railroad, &c., and having made a fair and just comparison of the said advantages and disadvantages, do report that they find as the value of the ground occupied and appropriated and before described as being the property of Abraham Bruner, and used for a lumber yard, $11,368 ; and for inconvenience and damage to balance, also used as a lumber yard, being an extension of the same lot of ground before described to the Susquehanna river, as per draft annexed, $2842; and for buildings on the land occupied and appropriated, viz.: frame stable 14 by 26 feet, lumber shed 16 by 32 feet, and fencing and gates, at $565; making in all $14,775, which is awarded to Abraham Bruner.”</p> <p>The reports in the other cases were similar, mutatis mutandis.</p> <p>Cooper’s damages were assessed at $6062.34; Righter’s at $4220, and Siner’s at $5915.</p> <p>The following exceptions to the report were filed by the company :—</p> <p>1. The report does not set forth distinctly the quantity or quality of the land taken and occupied.</p> <p>2. The report does not show that the viewers estimated and determined whether any damages have been sustained.</p> <p>3. The report does not show why the sum of $14,775 is awarded to Araham Bruner, whether the same is for damages or any other purpose.</p> <p>4. The viewers allowed witnesses to state their opinions as to the amount of damages, and received such statements in evidence.</p> <p>5. Witnesses were allowed to give in evidence their estimates of the expense of making a wharf out into the river and filling in new ground to an extent equal to that taken for the railroad.</p> <p>6. Witnesses in giving their opinions as to the amount of damages, based their estimates on the cost of making new ground by wharfing out into the river as above stated.</p> <p>7. Calculations and drafts showing the cost and amount of filling claimed as above stated, were received by the viewers, who were thereby led to consider such cost as partially, if not altogether the measure of damages.</p> <p>Exceptions substantially the same, were filed to the other re ' ports.</p> <p>The court below overruled the exceptions and confirmed the reports, which was assigned for error in the Supreme Court.</p> <p>cited Act of 27th March 1848, § 4, Pamph. L. 273; Zack v. Penna. Railroad Co., 1 Casey 395; O’Hara v. Penna. Railroad Co., Id. 445 ; Penna. Railroad Co. v. Porter, 5 Id. 165 ; Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 411; Same v. Farr, 4 W. & S. 375 ; Searle v. L. &• B. Railroad Co., 9 Casey 57; Watson v. The Pittsburg & Connellsville Railroad Co.,, 1 Wright 469; Dorian v. East Brandywine & Waynesburg Railroad Co., 10 Id. 521; Harvey v. The L. & B. Railroad Co., 11 Id. 434: In re Furman Street, 17 Wend. 649 ; 1 Graham & Waterman on New Trials 237, 240; Tutton v. Andrews, 2 Barnes 354; Strang v. Whitehead, 12 Wend. 64 ; Clark v. Vorce, 19 Id. 232; Osgood v. The Manhattan Co., 2 Cowen 612; Poster v. Smith, 10 Wend. 377 ; Brown v. May, 1 Munf. 288; Railroad Co. v. Hiester, 8 Barr 445.</p> <p>cited Pennsylvania Railroad v. Porter, 5 Casey 169; Road from App’s Tavern, 17 S. & R. 388; 1 Graham & Waterman on New Trials 243 ; Prince v. Shepard, 9 Pick. 176 ; Stiles v. Tilford, 10 Wend. 338 ; Reitenbaugh v. Chester Valley Railroad Co., 9 Harris 105 ; Commonwealth v. Lebo, 13 S. & R. 175 ; Frazier v. Funk, 15 Id. 26 ; Morrison v. Moreland, Id. 61.</p>

<p>1. Mrs. Ege assigned a mortgage to Watts as security for specified debts, and afterwards assigned a judgment to Watts, lie then having claims-against her larger than the amount of the judgment; no specific appropriation was made by either party of the judgment. Equity would not compel him to appropriate any part of the judgment to the debt for which the mortgage was assigned.</p> <p>2. Mrs. Ege assigned the judgment in consideration of a legacy due to Watts's wife. Sekl, that the question whether Watts could reduce the legacy to his possession was immaterial, as he had the right to receive the proceeds of the judgment assigned to pay it, whether he held for his own or his wile's use.</p>

<p>1. Foreman bought from Ahl fifteen mules on Sunday and gave his note for them on that day; two of the mules were not delivered until Monday. Held, there could be no recovery on the note.</p> <p>2. The contract may be treated as the purchase of fifteen mules per capita and the delivery mule by mule; Ahl could not recover for the thirteen mules, but might for the two, as a contract commenced on Sunday and consummated on Monday.</p> <p>3. Courts will not undo a bargain made on Sunday if the parties have fully executed it, but the law will not lend its aid to either party to enforce such a bargain.</p> <p>4. Such contract is worldly employment upon the Lord’s day in violation of the divine law and the Statute of 1794, and is void.</p> <p>5. In a suit by the endorsee against the maker of the note, the payee who had endorsed it is not a competent witness for the plaintiff although released.</p> <p>G. Evans v. Déla, 11 Casey 451, remarked upon.</p> <p>7. The endorser would not be a witness, although the suit were on the consideration of the note, because he would then be an assignor of a chose in action.</p>

Appeal of Richard C. Woods from the decision of the Register’s Court of Cumberland county, granting letters of administration d. b. n. c. t. a. on the estate of Nathan Woods, deceased, to Abraham Bosler. The following facts were agreed upon for the decision of the Register’s Court:— Nathan Woods died, having made the will hereto appended, in which he appointed his son, J. R. Woods, his executor, who, after filing his final account, and after distributing the estate, died.

In the court below A. Herr Smith, on the 22d of February Ü866, commenced an action of assumpsit against Stephen G. Bickham and Sarah Bickham, trustees. The following are the circumstances on which the action is founded. Eugenia R. Bickham conveyed all her estate to the defendants in trust for certain purposes, amongst others the support of the trustees and their families for life.

<p>Appeal by George Hower, administrator, &c., of Samuel Hower, deceased, from the decree of the Orphans’ Court of Cumberland county, dismissing his application for a sale of the real estate of the dece.dent.</p> <p>The administrator presented a petition October 23d 1866, setting forth that the decedent died seised of certain real estate, describing it, and setting out his heirs, amongst others, Hannah Slaybaugh, the wife of Henry Slaybaugh; that the estate was subject to the lien of a judgment and other debts not of record, “ and for the reason that it was greatly to the interest and advantage of all concerned, all those in interest except Henry Siaybaugh and wife agreed to sell the same to S. M. Glosser for the sum of |725, upon the terms in said petition set out, and asked the court to approve and confirm said sale, and to grant a rule on the said Henry Slaybaugh and wife, to show cause why said sale shall not be confirmed.”</p> <p>The answer of Slaybaugh and wife admitted that the legal title of the land was in the decedent, but that he held it under an arrangement to convey it to Slaybaugh in pursuance of a parol contract, upon conditions set out in the answer.</p> <p>Testimony was taken in reference to the contract, &c.</p> <p>The Orphans’ Court (Graham, P. J.), dismissed the petition in the following opinion:—</p> <p>u * *- gu(; ac(; ngver contemplated that the courts, in this summary mode, should settle and determine disputed titles, and dispose of matters of fact without the intervention of a jury, and thus entirely supersede the action of ejectment. The respondent in his answer denies that Samuel Iiower in his lifetime had any beneficial interest in this property, and avers that he held but a naked trust for the use of the respondent; the question of title thus presented can only be decided in an action of ejectment.</p> <p>“ This claim of exclusive title by the respondent deprives the court of jurisdiction, for the 3d section of the act provides that a sale may be decreed on the petition of any trustee, guardian, committee or person interested. The petitioner must have an interest in the property to be sold. In this case the respondent denies that the petitioners have any interest, and a stranger cannot be heard. It is true the petitioners insist they are interested and ask the court to pass upon the title on the depositions submitted. But this inquiry involves questions of fact as well as law, and the fact must be decided by a jury.</p> <p>“ But if the respondent had alleged no other interest than as an heir of Samuel Hower and assented to a decree of sale by the court, the court, under the Act of 1853, would have no power to decree a sale. The act was not intended to deprive the heir of a proceeding by partition, of the estate of the ancestor. In the ordinary case of an estate in fee simple, passing by descent, upon the death of the ancestor, to the heirs, unfettered by outstanding interests, eutailments, executory devises or contingent remainders, the Act of 1853 was not intended to supersede proceedings in partition in the Orphans’ Court, and thus deprive an heir from taking the ancestor’s estate at the valuation and appraisement made by inquest.”</p> <p>The administrator appealed, and assigned for error the dismissal of his petition.</p> <p>cited Acts of April 18th 1853, Purd. 851, Pamph. L. 503 ; February 24th 1834, § 36, et seq., Purd. 289, pi. 104, et seq., Pamph. L. 80; Greenawalt’s Estate, 1 Wright 97; Price on Limitations 358; Norris v. Clymer, 2 Barr 277; Aitkin v. Young, 2 Jones 15; Charnley v. Hansbury, 1 Harris 16; Todd v. Campbell, 8 Casey 250; Gilmore v. Rogers, 5 Wright 128; Barnet v. Dougherty, 8 Casey 371; Act of April 22d 1856, § 6, Purd. 654, pi. 13, Pamph. L. 532 ; Fitzsimmon’s Appeal, 4 Wright 422.</p> <p>cited Greenawalt’s Appeal, 1 Wright 95; Fitzimmon’s Appeal, 4 Wright 422; Gilmore v. Rodgers, 5 Wright 120 ; Act of 18th April 1853, supra ; Act of 22d of March 1859, Pamph. L. 207 ; Act of 22d of April 1856; § 4, Purd. 497, pi. 3, Pamph. L. 533 ; Roberts’s Digest 307 ; Kissler v. Kissler, 2 Watts 324; Lloyd v. Spillet, 2 Atk. 150; Barnet v. Dougherty, 8 Casey 371; Todd v. Campbell, Id. 250; Robertson v. Robertson, 9 Watts 42; Haines v. O’Conner, 10 Id. 320 .; Jackman v. Ringland, 4 W. & S. 150; Sharp v. Long, 4 Casey 433 ; Sheriff v. Neal, 6 Watts 540, 541, 542 ; Kunkel v. Wolfersberger, Id. 126; Parke v. Chadwick, 8 W. & S. 96 ; Morey v. Herrick, 6 Harris 123; Pattison v. Horn, and Horn v. Pattison, 1 Grant 301, 304; McBurney v. Wellman, 24 Barbour (American Law Journal) 382; Hiester v. Maderia, 8 W. & S. 388 ; Syler v. Eckhart, 1 Binn. 378; Eckert v. Eckert, 3 Penn. Rep. 362; Postlethwait v. Frease, 7 Casey 474; Moore v. Small, 7 Harris 467; McKowen v. McDonald, 7 Wright 441; Browne on Frauds, § 487 ; Page v. Page, 8 N. H. 187; Boyd v. McLean, 1 Johns. Ch. 582 ; Kendall v. Mann, 11 Allen 15 ; McKee v. Sanford, 1 Casey 105; Reninger v. Thompson, 6 S. & R. 1; Scheetz’s Appeal, 11 Casey 88.</p>

<p>Certiorari to the Court of Common Pleas of Lancaster county.</p> <p>Jacob S. Snyder petitioned the Court of Common Pleas, setting forth:—</p> <p>“ That he is the owner of a property or lot of ground, with buildings erected thereon, situated in the town of Columbia, and fronting on Front street.</p> <p>“ That the Pennsylvania Railroad Company have constructed a railroad over and through said property or lot of ground, and that in the construction of said railroad, they have occupied the pavement and public street in front of said property or lot of ground,” and prayed for viewers to assess the damages he had sustained thereby.</p> <p>Viewers were appointed, who reported that they “ do hereby estimate and determine the quantity of the said land to be 176 square feet, and the quality to be limestone land, and the value thereof to be $200, as per draft hereto annexed. And jiaving a due regard to, and making just allowance for the advantages which seem likely to result to the said Jacob S. Snyder, or which may have resulted in consequence of the opening or making of said railroad, and of the construction of works connected therewith ; and that having made a fair and just comparison of the said advantages and disadvantages, they do hereby estimate and determine that the said petitioner has sustained damages to the amount of $1280, by reason of the taking and occupying of the land aforesaid, and of the construction of the railroad as aforesaid ;■ which sum of $1280 they do hereby award to the said Jacob S. Snyder.”</p> <p>The draft accompanying the report showed that the construction complained of was an alteration of the track of the railroad, and that in making it the company had kept it in the public street.</p> <p>The company filed several exceptions to the report, the first of which was:—</p> <p>1. The Pennsylvania Railroad Company have not constructed a 'railroad over and through” the property of Jacob S. Snyder, as alleged in his petition filed, nor does the route of the railroad in the order of court mentioned pass through” said petitioner’s property as stated in the report of viewers — the true position of the railroad tracks laid down by the defendant, is shown by the plot or draft hereto annexed, and made part of these exceptions, the red lines showing the new tracks and the black dotted lines the old ones.</p> <p>The court (Hayes, A. J.) set aside the report, saying in his opinion, amongst other things: “ These exceptions, particularly the first, which is the ruling one, appear to be sustained.”</p> <p>Snyder appealed, assigning for error the setting aside of the report of the viewers.</p> <p>cited Const. U. S., Art. 5th of the Amendments; Const, of Penna., § 4, Art. 7; Pell v. The Ohio and Penna. Railroad Co.,1 Grant 106; Chambers v. Eurry, 1 Yeates 167 ; Cooper, &c., v. Smith, 9 S. & R. 31; 4 Bacon’s Abridg. 668, 669; Lewis v. Jones, 1 Barr 336; Phila. and Trenton Railroad Co., 6 Wh. 46; 16 N. Y. Rep. 97; Springfield v. Connecticut River Railroad, 4 Cush. 63; 3 Mete. Rep. 380; Stevens v. Middlesex Canal, 12 Mass. 466; Stowell v. Elag, 11 Id. 364; Lebanon v. Olcot, 1 N. H. 339; Calking v. Baldwin, 4 Wend. 667; E. and W. Ind. and Bir. Railway v. Gattke, 3 E. L. & E. Rep. 59; Queen v. East. Counties Railway, 2 Ad. & E. 347, N. S.; Redfield on Railways, § 19, p. 173; Notes in 1 Am. Railway Cases 166, 167, 168,169,170 and 171; Zimmerman v. The Union Canal Co., 1 W. & S. 352; Watson v. Pittsburg and Con. Railroad Co., 1 Wright 480; Sunb. and E. Railroad* Co. v. Hummell, 3 Casey 99; Acts of 1846, Pamph. L. 312,1848, Pamph. L. 275, February 19th 1849, § 12, Purd. 840, pi. 17, Pamph. L. 83; Road in Kiskiminitas, 8 Casey; 9 East. Pa. Railroad v. Hottenstine, 11 Wright 30 ; Reitenbaugh v. Chester Yalley Railroad, 9 Harris 100.</p> <p>cited Philadelphia & Trenton Railroad Co., 6 Whart. 25; Navigation Co. v. Coons, 6 W. & S. 113; Henry v. The Bridge Co., 8 Id. 85; Watson v. P. & C. Railroad Co., 1 Wright 479 ; Stormfeltz v. The Manor Turnpike Co., 1 Harris 559 ; Drake v. The Hudson River Railroad Co., 7 Barb. 509; Hamilton v. N. Y. & H. Railroad Co., 9 Paige 171; L. & O. Railroad v. Applegate, 8 Dana 289 ; 7 Barb. 551; N. Y. & Erie Railroad Co. v. Young, 9 Casey 180; Mifflin v. Railroad Co., 4 Harris 182; Patton v. Northern Central Railway, 9 Casey 428; Zack v. Pennsylvania Railroad Co., 1 Id. 395; O’Hara v. Pennsylvania Railroad Co., Id. 445 ; Pennsylvania Railroad Co. v. Porter, 5 Id. 165.</p>

<p>Appeal from the Orphans’ Court of Lancaster county, distributing the estate of George W. Terry, deceased, in the hands of his executors. The balance for distribution was $2255.32.</p> <p>By his will, dated March 25th and proved April 6th 1864, the testator gave to his mother the interest of his estate for life, gave two legacies of $150 each, and gave the residue to a brother and his own “ two sons he had by Sarah Jackson, of Philadelphia.”</p> <p>After the auditors had held several meetings, Sarah Jackson, named in the will as the mother of his children, employed counsel and appeared before the auditors, at a meeting held October 14th 1865, alleged that she was the wife of the testator, and claimed the $300 allowed by the Act of Assembly to the widow of a decedent.</p> <p>Much testimony "was heard on the question of marriage, Terry’s desertion of her and her ignorance of his death. She kept the children after his death.</p> <p>The auditors reported that they—</p> <p>“ Consider the testimony before them sufficient to establish a marriage between George W. Terry and Sarah Ann Jackson, from the autumn of 1850, by reputation, by cohabitation as man and wife, and by the admissions of the testator; and that these presumptions are not rebutted by any subsequent acts or declarations of Sarah Ann Terry, nor by the testator’s absence from her for nearly ten years before his death, nor by his naming her Sarah Jackson, instead of his widow, in his will.</p> <p>“It is objected to the allowance of $300 under the exemption laws, because the claim was not made in time, not having been made until eighteen months after testator’s death, after the real estate had ■ been soFd, the account on the estate had been filed, and the auditors to distribute appointed. It is in evidence that the testator absented himself from claimant nearly ten years before his death, and that during that time she never heard from, and but rarely had any tidings of, him; that she did not know of his death until September last, when she immediately employed counsel, and at the first meeting of the audit afterwards made her claim. Laches can only be imputed to one who is either bound to take notice of the happening of an event, or to one having actual notice of it. No actual notice or knowledge existed here, until the time mentioned ; and we know of no rule of law which requires a married woman to take notice, at her peril, of the death of her husband who had deserted her, and had been absent for a long period before, and at the time of, his death.</p> <p>“ The auditors think she was in time, and award her $300 in money which she claims, to be paid to her by the executor out of the balance in his hands.</p> <p>“ As the widow claims adversely to the will, which gives her nothing, the auditors do not regard her as having any other rights (other than her $300) upon the fund for distribution, which is wholly the proceeds of real estate sold in pursuance of the directions in the will.” * * *</p> <p>On exceptions, the court (Hays, A. J.) approved the finding of the auditors as to the marriage, but held that the widow had lost her right to the $300 by laches, in not making an earlier demand.</p> <p>The widow appealed, and assigned the decree of the Orphans* Court for error.</p> <p>cited Acts of April 11th 1848, § 11, Pamph. L. 537, April 14th 1851, § 5, Pamph. L. 613, Purd. 352, pi. 3-5; Compher v. Compher, 1 Casey 31; Lyman’s Adm’r. v. Byam, 2 Wright 479; Burk v. Gleason, 10 Id. 297.</p> <p>cited Acts 14th April 1851, § 5, Pamph. L. 613, 8th April 1859, § 1, Pamph. L. 425, Purd. 281, pi. 58, 59; Spier’s Appeal, 2 Casey 233; Dodson’s Appeal, 1 Id. 232; Neely v. McCormick, Id. 255; Compher v. Compher, 1 Id. 31; Mark’s Appeal, 10 Id. 36 ; Davis’s Appeal, Id. 256 ; Baskin’s Appeal, 2 Wright 65; Lyman v. Byam, Id. 475 ; Burk v. Gleason, 10 Id. 297.</p>

<p>A lease stipulated that the tenant “ shall cultivate and farm said land in a workmanlike manner, he shall put out all the crops in good season and in proper order, of such kind of grain, and in such fields, as the landlord shall designate. He shall also take off all the crops in proper season, and house the same in proper order.” In an action by the tenant for work and labor it was held, that it was admissible evidence that by the usual eourse of husbandry in the vicinity a tenant about to take possession in the next spring or to hold over, should prepare his corn ground in the preceding fall or winter, whenever he could do so; and that he 'should spread on such corn ground all the fertilizers which the landlord might furnish for that purpose, without any stipulation in the lease and without entitling himself to charge the landlord therefor.</p>

This was an action on the case for nuisance brought, July 30th 1862, by Alfred D. Jessup against Zechariah K. Loueks and Henry J. Loueks, and was tried before Hon. Alexander Hays, A. J., of the Second Judicial District. The plaintiff’s declaration averred seisin of a tract of land with “ water-power and paper-mill thereon, with the appurtenances.

This was an action of assumpsit to August Term 1866, by George W. Stair, administrator d. b. n., &c., of George Shearer, deceased, against the York National Bank. The suit was brought to recover a deposit under the following circumstances:— George Shearer died about November 1864, having made his will, and letters testamentary were issued to William W. Wolf, the executor named in it.

<p>1. A debtor gave a note in -which he waived the $300 exemption; his land being levied on he claimed the exemption, and the plaintiff made a new arrangement by parol with him, agreeing if he would abandon his claim he might retain part of his land. Held, that this arrangement was binding on the plaintiff.</p> <p>2. The agreement was not to acquire a new interest by parol; the defendant had both a legal and equitable title and a right to retain so much of the land as would be worth $300.</p> <p>3. The agreement was that the plaintiff was to take the sheriff's deed for the whole and make the defendant a deed for the part agreed upon. Held, that the plaintiff was trustee for that part.</p> <p>4. If the defendant was induced to surrender his right on the false assurance that the part should be left to him, the plaintiff refusing was a trustee ex maleficio.</p> <p>5. It made no difference that the plaintiff obtained his title through a judicial sale. Where a trust arises in fraud it vitiates all deeds, public and private.</p> <p>6. The part to be retained was the house and 15 acres; it is to be presumed that it was meant to be laid off in a reasonable shape, and the parties could afterwards do it; if one will not do it the other can on notice to him.</p>

This was an amicable action of debt, instituted November 19th 1866, between John P. Reed, administrator of James Taylor, deceased, plaintiff, and William Colvin, defendant. The facts agreed upon in a case stated were as follows:— James Taylor, the decedent, was married to Susanna 0. Taylor on the 12th of May 1857. He then resided in Bedford county, and his wife in Allegheny city, Pennsylvania. Shortly after-wards they went to Iowa and returned in the following July.

In Equity. John Bachman filed his bill, June 18th 1866, against Christian S. Kauffman, President of the Columbia and Port Deposit Railroad Company, in which he averred that he was the owner of a lot of ground of 150 feet front, in the borough of Columbia, and on the 20th day of December 1865 agreed with the defendant to sell him the lot for $20 per foot; that $1000 was paid at the date of the agreement, and the remaining $2000 was to be paid on the 1st day of February then…

In Equity. Tobias Barto, the appellant, filed his bill in the Court of Common Pleas, on the 11th of October 1861, against John M. Mark and Catharine Mark his wife.

<p>Error to the Court of Common Pleas of Somerset county.</p> <p>This was an issue under the Sheriff’s Interpleader Act, in which Henry F. Schell was plaintiff, and George W. Benford & Co., and M. A. Sanner & Co., were defendants.</p> <p>M. Treadwell was a banker in Somerset, and on the 11th of April 1866, by written agreement, sold a safe and all his banking fixtures to Schell, the plaintiff. On the next day he made an assignment for the benefit of his creditors ; on the 14th of the same month he executed a judgment note to Benford & Co., on which an execution was issued same day, and the safe and fixtures levied on. Sanner & Co. were also judgment-creditors, and the same property was levied on under their judgment, April 16th.</p> <p>On the trial of the interpleader, Treadwell testified:—</p> <p>“ The safe was in the house I occupied as tenant of George Parker. I was in possession on the 11th of April last. On that day I sold the safe and all the bank fixtures to IT. F. Schell. After we articled I gave him the keys of the safe, and one of the keys to the front door — the only one I had in my pocket at the time. Schell gave me his two notes, for $600 each, payable in 60 and 90 days. This sale was made before'I made the assignment for the benefit of my creditors. After I made the assignment the notes were passed by me to the assignee. Schell gave me a full price. I gave $1000 for the safe, and $200 was a fair price for the fixtures. The safe weighs, I think, 2000 pounds. Mr. Schell is still in possession. I made the assignment next day. Schell is now in the banking business, and is using the safe. There were previous negotiations between us about the safe. I told Mr. Schell I presumed Mr. Parker would let him have the room — that he might have all my right to it. I had one key, but I had no control of the room. I unlocked the door once only afterwards and went into the room. This was after the sale and after the assignment. Mr. John Benford had some business with me, and I went into the room to talk with him about it. I took my papers all out of the safe, the same evening I made the sale. The books were left in and passed to Mr. Weyand, the assignee, when I made the assignment. There was more than one set of keys for the safe. I had one set, and the other set was locked up in a paper case in the bank. I gave the set I had to Mr. Schell, immediately after he gave me his notes. I gave Schell the other key of the door after the levy was made. I told Schell where the other set of safe-keys were. 1 did not sell Mr. Schell the paper case. I never had the keys after I told Schell where they were. Nothing of value left in the safe but the books. I supposed that Mr. Schell could take my place as tenant of Mr. Parker, but I told him he had better see Mr. Parker. I told Mr. Weyand the books were in the safe, that he could go to Mr. Schell and get them. I had one of the keys of the house for two or three days after I sold the safe. I gave a judgment to Benford & Co., on Saturday evening after the sale of the safe. The execution was issued and placed in the sheriff’s hands on same evening. I had one of the keys up till that time. If I had had both keys in my pocket at the time of sale, I would have delivered them to Mr. Schell. The safe has rollers and could be taken out of the door. Mr. Schell was to pay the rent from 1st April, if he stayed in the house. I never saw the keys of the safe after I told Schell where they were.</p> <p>Geo. Kimmel testified: I was clerk in bank of M. Treadwell; I went into the room on Friday or Saturday after the sale of the safe and showed Mr. Schell how to lock the safe — I got the keys from Mr. Schell. The safe occupied the same spot; I opened the safe ; Treadwell’s books were in. Mr. Schell opened his bank about the 1st of May. The sign of M. Treadwell & Co., “ Banking House,” still remained.</p> <p>The Court (King, P. J.) charged:—</p> <p>“ If you believe the statement testified to by M. Treadwell, we instruct you there was such a delivery of the property as will sustain the sale, and take it out of the Statute of Frauds, and your verdict must be for the plaintiff.”</p> <p>The verdict was for the plaintiff.</p> <p>The defendant having removed the case to the Supreme Court, assigned the instruction of the court below for error.</p> <p>cited Clow v. Woods, 5 S. &R. 282; Steelwagon v. Jeffries, 8 Wright 411-12; Chase v. Ralston, 6 Casey 541; Shaw v. Levy, 17 S. & R. 101; Dunlap v. Bournonville, 2 Casey 72 ; Young v. McClure, 2 W. & S. 151; Babb v. Clemson, 10 S. & R. 428 ; Carpenter v. Mayer, 5 Watts 485; Eagle v. Eichelberger, 6 Id. 31; McBride v. McClellan, 6 W. & S. 95 ; Linton v. Butts, 7 Barr; Haynes v. Hunsicker, 2 Casey 60; Milne, Brown & Co. v. Henry, 4 Wright 568; Hoffner v. Clarke, 5 Whart. 545; Hoofsmith v. Cope, 6 Id. 53; Wendell v. Smith, 1 Smith’s Lead. Cas. 40; Wilbur v. Strickland, 1 Rawle 460.</p> <p>cited Leedom i>. Philips, 1 Yeates 529; Beatty v. Dougherty, Dist. Ct. Phila., 17 Leg. Int. 222; Clow v. Woods, 5 S. & R. 282, 286; Haynes v. Hun-sicker, 2 Casey 58, 59; Dawes et al. v. Cope, 4 Binn. 258; Luckenbach v. Brickenstein, 5 W. & S. 145; Cadbury v. Nolen, 5 Barr 324 ; Hugus v. Robinson, 12 Harris 9,13 ; Chase v. Ralston, 6 Casey 539 ; Steelwagon v. ’Jeffries, 8 Wright 412; Leonard v. Winslow et al., 2 Grant 143 ; Act of 14th June 1836, Purd. 968, Pamph. L. 630 ; Mitchell v. Willoek, 2 W. & S. 253 ; Fitter v. Maitland, 5 Id. 307; Dallam v. Fitter, 6 Id. 323; Klapp’s Assignees v. Shirk, 1 Harris 589, 592; see 1 Smith’s Lead. Cas. 70, 71.</p>

<p>Error to the Court of Common Pleas of York county.</p> <p>This was an action on tbe case brought August 10th 1864, by William J. Coyle against the Hanover Branch Railroad Company for negligence by the servants of the company in running against and breaking his wagon, injuring himself and his horses, and injuring and destroying goods in his wagon.</p> <p>The plaintiffs were a company incorporated to build a railroad from the Northern Central Railway to the town of Hanover, a distance of about 12 miles. After they had completed their road, the Gettysburg Railroad Company constructed a road from Hanover to Gettysburg, a distance of about 17 miles. On the 26th of March, 1863, an agreement was entered into between these two roads by which the Gettysburg; road, then in the hands of a sequestrator, agreed -to keep their roads, bridges, sidings, switches, water stations, turn-tables, engine house, &o., in good order; to furnish the necessary sidings, switches, water stations, and turn-tables ; to pay all labor and expenses attending the repair department of their road; to employ and pay their agents along the line of their road, whose duty-it shall be to sell tickets, receive and deliver freights, and to do all matters pertaining to transportation at the several stations; to furnish the records, bo.oks, manifests, tickets, &c., for their stations, and to collect all transportation charges at their stations; said company to take proper and sufficient care of all switches, &c., along the line of the road. To permit the burden cars of the Hanover Branch Railroad Company to run and carry freight over their road, and to pay for the use of the said cars.</p> <p>The Hanover Branch Railroad Company to furnish the motive power, passenger and baggage cars sufficient for the transportation of all the passengers and baggage: and to carry all the freight over the road from the different stations and points of business, to employ conductors, brakesmen and baggage-masters, and to pay all expenses attending the running of trains along their own road, to ticket passengers, receive and deliver all freights, for and from all points on the Gettysburg Railroad, and to collect the revenues therefrom at all the stations on the Hanover Branch Railroad, and for such purpose to furnish the records, books, manifests, tickets, &c., for said points, exclusive of the station at Hanover.</p> <p>For the said services the Gettysburg Railroad Company is to pay the Hanover Branch Railroad, $475 per month, &c., * * * and if said Gettysburg Railroad Company neglects or refuses to pay promptly, as herein stipulated, then this contract can be declared null and void by the said Hanover Branch Railroad Company. * * *</p> <p>The Gettysburg Railroad Company shall be responsible for all accidents or casualties occurring in consequence of the defective construction, bad repair, or improper condition or situation of their road or parts thereof, bridges, culverts, sidings, switches, &c., &e., and should obstructions be placed on the track at any time, by malicious or designing persons, and the Hanover Branch Railroad Company sustain damage in consequence thereof, said damages shall be paid in equal proportions by the contracting parties.</p> <p>The Hanover Branch Railroad Company shall be responsible for any accident or casualty, caused by the want of repair or improper condition of any of their machinery or cars, or the negligence of their agents or operatives in running the road of the Gettysburg Railroad-Company according to these stipulations.</p> <p>There was no schedule of running time on the Hanover Company’s trains, being governed by the running of the trains on the Northern Central Railroad.</p> <p>On the trial before Fisher, P. J., the evidence was that on the 6th of January 1864, the plaintiff, who was a peddler, was driving on the Carlisle road in a wagon with two horses, “ so muffled up with his coat, comfort and buffalo robe” that the witness supposed he could not see the signal which he, the witness, made to him with his hand. The plaintiff was then about 5 yards from the railroad at the point where it crosses the Carlisle road, and the train was about 100 yards distant, the plaintiff’s horses moving in a fast walk, and in crossing the railroad, which was the Gettysburg Railroad, the cow-catcher struck the wagon, greatly injured himself and one of his horses, and scattered and injured his goods. There was evidence given by plaintiff’s witnesses that there were openings by. streets and alleys in the town, by one of which the plaintiff could have seen the train when it started and for some distance afterwards, and by the others only at the time of crossing it, — the sight at one being intercepted by “ Holder’s” house.</p> <p>The plaintiff’s witnesses also proved that the wagon hid the head and the sides of the plaintiff, but not his legs.</p> <p>There was evidence also of the plaintiff having frequently ' crossed the railroad at that place.</p> <p>The evidence was conflicting as to giving signals, and as to the train being behind time.</p> <p>On the trial the plaintiff offered to prove declarations of the engineer at the time of the accident, for the purpose of showing that the train was behind time, to show carelessness and negligence, and as part of the res gestee.</p> <p>He also offered to prove the nature and character of his business, and the extent of the loss of time, and also percentage on the goods sold by him in his usual course of business, the loss of interest of money received for the same, in consequence of injuries received, and the annual amount of sales made by him— for the purpose of showing his damages in consequence of being prevented by the defendants from transacting his business.</p> <p>Both offers were received against the objection of the defendant, and exceptions were taken.</p> <p>The defendants submitted points; those whose answers were assigned for error, with the answers, are as follows:—</p> <p>4. It was the duty of Coyle, the plaintiff, in driving up to the crossing, to use all reasonable care and opportunity to find out whether a train of cars was also approaching it at the same time. It would have been proper for him to have stopped his wagon at the first point from which he might have had a view of the railroad, as stated in the testimony, on both sides within a few hundred feet of the crossing; to have listened to hear the whistle or noise of the engine or ears, and to look to see if an engine or train was coming ; if he neither heard nor saw anything to indicate the approach of either, it was proper that he should not have ceased his efforts, but should have continued them at each of the points of view of the railroad mentioned in the testimony as nearer to the crossing; and if the jury believe that he neglected to take all or any of these precautions, but drove carelessly on to the crossing without stopping — paying no attention to any warnings which may have been given him, until his wagon was struck by the engine, and this conduct on his part helped in any degree to occasion the accident, their verdict must be for the defendant.</p> <p>Answer: “We answer this point in the affirmative. Butin so doing, we do not affirm the facts stated to be proved ; whether they are or are not is for the jury to decide from the evidence. It is their duty to decide from the whole evidence all the facts, which are many and are disputed. Negligence is a fact to be decided by the jury from the whole evidence, and all the circumstances attending the case. Negligence is the want of that care which men of common sense and common prudence ordinarily exercise in their employments and business of life.”</p> <p>6. If the plaintiff could sustain any action at all, it would be against the Gettysburg Railroad Company, on which the collision occurred, and not against the Hanover Branch Railroad Company, the defendants.</p> <p>Answer: “ The court cannot answer this point "in the affirmative. We say if plaintiff is entitled to recover for the injury complained of, he can recover against the defendants in this action.”</p> <p>7. If the Gettysburg Railroad Co. was, at the time of the collision, under the management of themselves, or their trustee, or their sequestrator, they or he receiving all the profits of passengers and freight, while hiring by the month or otherwise, their motive power from the Hanover Branch Railroad Company, and their freight cars from the Northern Central Railroad, if there be any liability for the alleged collision, the Gettysburg Railroad Company, and not the Hanover Branch Railroad Company, are responsible for it; and, therefore, the plaintiff cannot recover in this suit.</p> <p>Answer: “ If the facts stated in this point are sustained by the evidence, taken in connection with the article of agreement between the Gettysburg Railroad and the Hanover Branch Railroad, they cannot prevent the recovery of the plaintiff if he is otherwise entitled to recover.”</p> <p>8. Upon the evidence in the cause the plaintiff is not entitled to recover.</p> <p>Answer: “We cannot answer this point in the affirmative. The evidence is for the jury, and they must decide what the facts are, and what credence is to be given to the witnesses.”</p> <p>The verdict was for the plaintiff for $1524. The defendants moved for a new trial; the motion was overruled and judgment entered on the verdict.</p> <p>The defendants took a writ of error, and, besides the answers to the points, assigned for error the rulings of the court on the evidence.</p> <p>— The answer of the court to the 4th point could only serve to set off the supposed negligence of the defendants against negligence of the plaintiff, and mislead and confuse the jury : Wilds v. Hudson River Railroad Co., 24 New York 443 ; North Penna. Railroad Co. v. Heileman, 13 Wright 60; Stevens v. the Oswego & Syr. Railroad Co., 18 N. Y. 422; Brooks v. Buffalo and Niag. F. Railroad Co., 25 Barb. 604; O’Brien v. Phila. and Wil. Railroad Co., in Sup. Ot. Penn., 6 Am. Law Reg. 361; Spencer v. U. & Sch. Railroad Co. 5 Barb. 337 ; Penna. Railroad Co. v. Ogier, 11 Casey 60; Catawissa Railroad Co. v. Armstrong, 13 Wright 192; Cotton v. Wood, 8 C. B. N. S. (98 E. C. L. R.) 573; Toomey v. The London, &c., Railway Co., 3 C. B. N. S. (91 E. C. L. R.) ; Deyo v. New York Oen. Railroad Co., 34 N. Y. (7 Tiffany) 13; Johnson v. Hudson R. R., 20 N. Y. R. 78.</p> <p>A party injured by a collision, asks only what road it was, and who were operating it, in order to know whom to sue. Does it make any difference that they hired the engine and cars, and the employees on them, from the Hanover Branch Company. The motive power was under their exclusive control of the Gettysburg Company and the sequestrator, and they were made custodians of a public highway,- with the perception of the accruing profits: Acts of Feb. 19th 1849, § 18, Pamph. L. 86; April 22, 1850, § 9, Pamph. L. 539; June 16th, 1836, § 74, Pamph. L. 775, Purd. 840 pi. 20, 845, pi. 46, 200 pi. 46; Pierce on Amer. Rl. Rd. Law; 244 Graham v. N. E. R. W. Co., 114 E. C. L. R. 239 ; Laugher v. Pointer, 5 B. & C. 558 (11 Í3. C. L. R. 584); Story on Agency, § 313, 2 Kent’s Com. 260; Rauch v. Lloyd, 7 Casey 365.</p> <p>The declarations- of the engineer were not a part of the principal fact — the collision — not a part of the res gestee: Dick v. Cooper, 12 Harris 221; Patton v. Minesinger, 1 Casey 393 ; Lund v. Tyngsborough, 9 Cush. 36; Lane v. Bryant, 9 Gray 247; Griffith v. Montgomery Railroad Co., 26 Yerg. Ill; Thallheimer v. Brinkerhoof, 4 Wend. 398 ; Vanderbilt v. Richmond Turnpike, 2 Comstock 479 ; McManus v. Cricket, 1 East 106 ; 2 Hilliard on Torts 432; Erazier v. Penn. Railroad Co., 2 Wright 104; Hoffman v. Kemerer, 8 Id. 452; Steinman v. M’Williams, 6 Barr 176.</p> <p>The plaintiff should not have been permitted to recover damages for the profits he might have made on his sales of his goods, if he had not been interrupted by the collision: The Amiable Nancy, 3 Wheat. 546, 560, and cases there cited; per Cowen, J., Blanchard v. Ely, 21 Wend. 342; Smith v. Condry, 1 Howard 28 ; Giles v. O’Toole, 4 Barb. 261; 2 Greanleaf Ev. § 256 ; Iieil v. Glanding, 6 Wright 499 ; Fleming v. Beck, 12 Id. 312 ; Sedgwick on Dam. 78; 1 Chitty Pleading 441, &c.; Squier v. Gould, 14 Wend. 159 ; Vanderslice v. Newton, 4 Comst. 130.</p> <p>cited Makey v. Pennsylvania Railroad, 6 Am. Law R. N. S. 415; North Penna. Railroad v. Ileileman, 13 Wright 60 ; Pennsylvania Railroad v. Ogier, 11 Casey 60; O’Brien v. Philadelphia, &c., Railroad, 6 Am. Law R. 361; Phila. & Trenton Railroad v. Hagan, 11 Wright 248 ; Painter v. the Mayor of Pittsburg, 10 Id. 220 ; Broome’s Legal Maxims 387 ; 2 Hilliard on Torts 446, pi. 11; Cincinnati v. Stone, 5 Ohio 38 ; Quarman v. Burnett, 6 M. & W. 499 ; Milligan v. Wedge, 12 Ad. & El. 737; Rapson v. Cubitt, 9 M. & W. 710; Reedie & Hobbit v. London & NorthWestern Railway, 4 Exch. 244-254; Overton v. Freeman, 11 C. 33. 867 ; Peachy v. Rowland, 13 C. R. 182; Hilliard v. Richardson, 3 Gray 349; Blake v. Ferris, 1 Seld. 48 ; Pack v. The Mayor, &c., of New York, 4 Seld. 222 ; Blattenberger v. The Little Schuylkill Navigation Company, 2 Miles 309 ; Laugher v. Pointer, 5 B. & C. 547; Brueker v. Fremont, 6 T. R. 659; Powell v. Deveny, 3 Cush. 304, 305 ; Crockett v. Calvert, 8 Ind. 127; Act of the 19th of February 1849, § 13, supra ; Act of 13th March 1847, § 1, Purd. 844, pi. 38, Pamph. L. 337; Rauch v. Lloyd & Hill, 7 Casey 365 ; Lane v. Bryant, 9 Gray 245; Reagan ¶. Grim’s Administrator, 1 Harris 508; Potts v. Ever-hart, 2 Casey 493; Lincoln v. Saratoga & Sch. Railway, 23 Wend. 425; Fleming v. Beck, 12 Wright 309 ; Wade v. Haycock, 1 Casey 382; Heil v. Glanding, 6 Wright 499; Adams’s Express Co. v. Egbert, 12 Casey 360; McKnight v. Radcliffe, 8 Wright 156; Redfield on Railways 347; Rogers v. Fales, 5 Barr 154; Railroad Co. v. Messino, 1 Smead. (Tenn.) 220 ; 18 U. S. Dig. 301, pi. 387.</p> <p>cited Haring v. N. Y. & Erie Railroad Co., 13 Barb. 15; 2 Hilliard on Torts 445, 447'; 1 Greenl. Ev. § 13; Thalheimer v. Brinkerhoff, 4 Wend. 396; BankofMunroe v. Field, 2 Hill 445; Story on Agency, §§ 135, 136 ; Farlie v. Hastings, 10 Yes. 128; Barker v. Benninger, 4 Kern. 271; Luby v. Hudson River Railroad Co., 17 N. Y. R. 133.</p>

On the 1st day of January 1847, the company leased to Joseph Paneoast and others a lot at Lock No. 6, containing 5 acres and 64 perches, “ with the exclusive right and privilege of using all the surplus water-power not needed at Locks No. 6 and 7,” for 20 years, at a rent of $250 for the first year,,and increasing until the end of the term, the last four years to be $800 per annum ; the lessors to keep the locks in order, and, if not done, the lessees, under conditions…

This was an action for mesne profits brought August 20th 1860 by Joseph Critchfield against George Humbert. The plaintiff having died during the pendency of the suit, Samuel Walker and Jacob M. Walter, his administrators, were substituted. On the 14th of April 1858, Critchfield brought an action of ejectment against Humbert and others for a tract of land in Somerset county, and on the 9th of February 1859 recovered a verdict for thirteen-eighteenths of the tract.

<p>Error to the Court of Common Pleas of Franklin county.</p> <p>This was an action of ejectment, commenced June 21st 1865, by Nicholas Best, against Daniel Hammond for 28 acres of land.</p> <p>Both parties claimed under the following clauses in the will of Innis Dougal:—</p> <p>“ I give and bequeath to Nicholas Best that part of my farm in Amberson’s Valley beginning at a chestnut-oak corner, north west near Wolfe’s field, thence running in a straight line to the mountain. Also, I bequeath to Nicholas Best, the lot above the orchard, making the old lane the line in a straight direction to Wilson’s corner (a white-oak). Also I give and bequeath to Nicholas Best, the meadow next J. H. Dyarman, with a road through the lower end of the field above to the valley road. I give and bequeath to my brother Samuel Dougal the remainder of my farm in Amberson’s Valley.”</p> <p>Samuel Dougal, the devisee, conveyed the land devised to him to the defendant. The dispute in the suit was, how the “ straight line” in the devise to Best should be run.</p> <p>On the trial before King, P. J.,the defendant offered to prove that the testator pointed out the line spoken of in Innis Dougal’s will, which was to begin at a “ chestnut-oak corner, north-west, near Wolfe’s field, thence running in a straight line, to the mountain,” was to be an extension of the line, from the Yalley Road by the property of Mrs. Kirkpatrick to the chestnut-oak, thence in the same direction straight to the mountain.</p> <p>The plaintiff objected to the testimony because there was no latent ambiguity in the will, because the testimony contradicts the language of the testator, and because the meaning of the testator cannot be explained by evidence outside of the will.</p> <p>The evidence was admitted and an exception taken.</p> <p>The witness testified: — “I copied a will in part and wrote it in part for Mr. Dougal. There was the same clause in the will that I wrote and copied. When I came to write that part of the will he spoke of the line running from the Yalley road along Martha and Mary Kirkpatrick’s lot to the chestnut-oak at Wolfe’s corner, and thence a straight line to the mountain. I understood that it was to be a straight line with the original line of the survey. The chestnut-oak was the point at which the division between Best and Samuel Dougal was to commence. The chestnut-oak stood on the line that came up from the Yalley road. The testator called it Wolfe’s corner: said that it was a chestnut-oak tree. The testator said that the line from the Yalley road to the chestnut-oak corner was already laid down on the land, and the. line from the chestnut-oak to the mountain was to be a straight line. He spoke of the line from the Yalley road to the chestnut-oak corner as already established and I understood from Mr. Dougal that the line was to be extended to the mountain in a straight line with what was established. I cannot recollect the exact words used by him, but this is what I understood it from what he said.”</p> <p>The plaintiff submitted these points :—</p> <p>1. There is no latent ambiguity in the will of Innis Dougal, and it must be interpreted by what appears within the four corners of the paper.</p> <p>2. The testator having directed that the division line between the part of his farm devised to the plaintiff, and the part devised to Samuel Dougal, under whom the defendant claims, should begin at a chestnut-oak corner near Wolfe’s field, thence running in a straight line to the mountain ; the true division line between the parties is a line commencing at the chestnut-oak corner and running by the most direct and shortest route to the base line of Innis Dougal’s land on the mountain.</p> <p>3. There is no warrant in the will which justifies the starting from any other point than the chestnut-oak corner adopted by the testator in his will.</p> <p>The defendant submitted this point:—</p> <p>If the line was intended by the testator to be a mere extension of the line from the Valley road to the chestnut-oak, thence to the mountain, then the defendant is entitled to the verdict, and this is a question of fact for the jury to determine on all the evidence in the case.</p> <p>The court charged:—</p> <p>“ The controversy in this case grows out of the doubt of what was meant by the testator in describing the devise to Best‘ by a straight line from the chestnut-oak corner, near Wolfe’s field, to the mountain.’</p> <p>“ The north-western boundary of the testator’s farm in Amber-son’s Valley, was a straight line along the base of the mountain, or rather the side of the mountain, and nearly parallel with the range of the mountain.</p> <p>“ The chestnut-oak corner was at the end of a straight line on the other side of the tract, and the plaintiff contends that a true construction of the devise to Nicholas Best, requires that the straight line from the corner should be run to the line at the base of the mountain and at right angles with it. The defendant insists that it should simply be an extension of the line on which the chestnut-oak stands as a corner. Either of these lines would be a ‘ straight line to the mountain.’ To determine this question of fact, or rather to shed such light upon it as would enable the jury to settle it, the defendant offers parol evidence to show that the testator intended the straight line to be an extension of a straight line already marked upon the ground, and it is objected to as inadmissible.</p> <p>“ The general rule is, that the intention of the testator must be collected ex viseeribus testamentó, especially in regard to devises of real estate ; but‘when,’ (as is stated in Greenleaf’s Evidence, §290),‘the description in the will of the person or thing intended is applicable with legal certainty to each of several subjects, extrinsic evidence is admissible to prove which of such subjects was intended.’ * * * Geometrically speaking, a straight line is the shortest line between two given points, but here only one definite point is fixed. The surveyor says he can run twenty straight lines between the chestnut-oak corner and the mountain, and we are to discover, if possible, what was the line in the contemplation of the testator when he wrote his will. Can it be said that the line contended for by the defendant is ‘ wholly inapplicable to the subject intended, or said to be intended by the description in the will V If it is not, then, under the rule referred to, the evidence proposed is not inadmissible. * *</p> <p>“ Here we have a boundary designated in the will as a straight line, and it appears from the testimony, that this description is equally applicable to two straight lines between the points mentioned in the will, and for the same reason extrinsic evidence should be received to elucidate the intention of the testator. If both termini of this straight line had been as distinctly defined as the one at the chestnut-oak corner, evidence could not be admitted to prove that the testator intended other and different termini, but when the terminus at the mountain is left in doubt we can discover no means of ascertaining the wishes of the testator, but by permitting the evidence offered to be received. [In the absence of evidence to establish a contrary intent we believe it to be the duty of the jury to adopt the line contended for by the plaintiff, as it is the nearest and shortest distance from the chestnut-oak corner to the mountain, but if you believe, from the evidence, that the testator intended to fix as the boundary between these parties an extension of the straight line upon which this corner stands, to the mountain, you ought to find a verdict for the defendant.]”</p> <p>There was a verdict for the defendant.</p> <p>The plaintiff removed the case to the Supreme Court, and assigned for error the admission of the testimony objected to; the part of the charge included in brackets, and that the court did not instruct the jury to find for the plaintiff.</p> <p>cited Duncan v. Duncan, 2 Yeates 802; Newell’s Appeal, 12 Harris 197 ; Mann v. Mann, 1 Johns. Ch. 231; Cheney’s Case, 5 Rep. 68; Wusthoff v. Dracourt, 3 Watts 243 ; Jones v. Newman, 1 W. Bl. Rep. 60 ; Thompson v. White, 1 Dallas 426 ; McMeen v. Owen, 1 Yeates 139; McDermot v. United Insurance Co., 3 S. & R. 609; Nixon v. McCallmont, 6 W. & S. 159; Morrison v. Morrison, Id. 516; Sennet v. Johnson, 9 Barr 335 ; Seitzinger v. Ridgway, 4 W. & S. 472; Stub v. Stub, 3 Barr 251.</p> <p>The case was submitted without oral argument by the defendant in error, and he furnished no paper book.</p>

This was an action of debt, commenced August 9th 1866, by John W. Killinger against Mary A. Bachman and Jacob Uhrick, administrators, &c., of John K. Bachman, deceased. The bond in suit, which was dated March 31st 1862, was the joint and several bond of Christian L. Bowman, Samuel Bowman and John K. Bachman to John W. Killinger; it was for $3000, payable on the 1st of April 1862. Samuel Bowman and John K. Bachman were the sureties of C. L. Bowman.

<p>1. A verdict was given for the plaintiff in an action for flooding his land, there was a motion for a new trial, pending which another action was brought for the same nuisance. Before the trial a new trial was refused and judgment entered in the first suit. The court charged that this was not conclusive on the defendant, because it did not exist when the suit was brought. Held; to be error.</p> <p>2. The date is of no consequence; it is the fact of an adjudication on the same subject-matter between the same parties which, gives effect to the former recovery.</p> <p>3. The operation of the rule is the same whether the record be pleaded by the one or the other of the parties.</p> <p>4. Where nominal damages only have been given- in the first action, it establishes the right, and in a second real damages may be given if shown.</p> <p>5. In a first action the plaintiff counted generally for flooding his land by a dam; in a second he declared in the same way, and in a second count for injury by a tail-race made on his land. Held, if the tail-race was an injury made by the dam, the conclusiveness of the former verdict would be the same to it as to any other part of the land.</p> <p>6. The owner of a dam, although erected on his own land, is answerable to his neighbor for injury to his land by freshets occasioned or enhanced by the dam not only in ordinary stages of water but by ordinarily recurring freshets.</p> <p>7. One man cannot, with impunity, invade the premises of another by a nuisance because the damage may be inappreciable. The law allows the recovery of nominal damages at least, as evidence of the plaintiff’s right.</p>

<p>1. After the due execution of a will, the testator altered certain legacies and the date by erasure and interlineation, and acknowledged it so altered in the presence of two witnesses without again signing it. Held, not to be a revocation.</p> <p>2. A careful interlineation is not an “ obliteration” within the Wills Act.</p>

<p>Appeal from the decree of the Orphans’ Court of Dauphin county, in the matter of the account of John S. Foltz, guardian, &c., of Mary Jane Laird.</p> <p>The accountant was appointed guardian of the minor on the 25th of November 1854, and on the 31st day of January 1866 filed a final account of his guardianship.</p> <p>In the account, he charged himself with $1006.22 and interest to April 1st 1857, when he made a rest, and deducting credits for payments on account of the ward, and commissions at 5 per cent., showed a balance of $1027.75. He then charged himself with that balance and interest on it to April 1st 1860 ; charged 5 per cent, commissions on the whole sum made up of the former balance and the interest, and, deducting payments to the ward and the commissions, carried on the balance thus found. This plan of triennial rests was continued in the account for two peiúods more, the guardian, at the end of each, charging 5 per cent, upon the aggregate of the balance and its intex-est during the periods.</p> <p>The whole amount received by guardian, principal and interest, $1792.18 ; the disbursements $270.96, and the compensation $257.55, the final balance on his account, as filed, was $1162.44. Exceptions having been filed on the part of the ward, the Orphans’ Court reduced the commissions $100, increasing the balance to $1262.44. From this decree the guardian appealed.</p> <p>cited Dietterich v. Heft, 5 Barr 87; Act of March 29th 1832, § 10, 18, Purd. 279, 300, pi. 39, 164, Pamph. L. 192,193; McElhenny’s Appeal, 10 Wright 349 ; bluffer’s Appeal, 2 Grant 344; Say’s Ex. v. Barnes, 4 S. & B.. 116; Morgan v. Morgan, 39 Barb.</p> <p>cited McElhenny’s Appeal, 10 Wright 849.</p>

<p>]. The appropriation by the Act of February 15th 1866 for the relief of citizens in Ohambersburg and vicinity whose property was destroyed by the rebels in July 1864, was a pure gratuity of the state, and the dividend awarded for burning the house of a decedent should go to his widow and child as personalty and not to the lien-creditors.</p> <p>2. The money appropriated for property taken by the state becomes a substitute for the property. But such principle is not applicable to property lost by public enemies; an appropriation to pay is a mere gratuity and can be claimed only by the party to whom it is given and in accordance with the terms of the gift.</p>

This was an amicable action, entered March 17th 1866, and case stated between William Zumbro, plaintiff, and Guilford Township School District, defendants. The case showed these facts:— Zumbro was a citizen of Guilford township subject to military service. He was drafted on the 18th day of March to fill the quota of that township.

This was an action of assumpsit, brought January 5th 1866, by Isaac Hugus, Esq., for professional services as an attorney-at-law, against Joseph Lichty. The pleas were payment, and the Statute of Limitations. A suit was brought February 15th 1855 in the Court of Common Pleas of Somerset county, in which Joseph Lichty was one of the defendants. Hugus was his counsel in the case.

<p>1. In a sheriff’s interpleader where the property which consisted of many articles was claimed by the wife of the debtor, the court charged: “ As your verdict must be a general one, either for the plaintiff or the defendants, it is incumbent on the plaintiff to make out title to all the property, otherwise she cannot have the verdict.” Held, to be error.</p> <p>2. When the evidence clearly shows a separate property in the wife, she is entitled to the benefit of its products and avails.</p> <p>3. The wife was the owner of a farm as her separate property, the articles levied on were products of the farm and articles purchased from them ; the court charged: “The labor on the farm was bestowed by her husband and his children, and the grain, hay and other crops raised were the joint products of such labor and the land; and if the personal property now claimed by the wife was paid for out of the products, the husband had an interest in it. It cannot, therefore, be said to have been purchased and paid for out of the separate funds of the wife.” Held, to be error.</p> <p>4. The ownership of the farm carries with it, at law and in equity, the right to its products. No change can take place in the title to the fruits of the soil without the owner parts with his title or possession or permits its cultivation for the benefit of another.</p> <p>5. The labor of others for the owner, though mingling in the production, creates no title to the product, whether the labor be that of the husband or another.</p> <p>6. Equity will enforce a trust or a contract, but cannot create a title where none exists.</p> <p>7. Creditors can work out equities only through the rights of the parties where there is no fraud.</p> <p>8. A debtor cannot be compelled to labor for his creditors nor have they a remedy against his personal efforts.</p> <p>9. A husband who is permitted, in the enjoyment of the marital relation, to live and be maintained upon the property of his wife, which she manages for her own use and benefit, does not acquire a title to the products merely by the labor which he voluntarily bestows upon it.</p> <p>10. The minor children of the husband and wife, who were entitled by the terms of the deed to maintenance of the farm, might, with their father’s assent, assist in the work on the farm without giving the husband any title to the products.</p>

<p>Error to the Court of Common Pleas of FranJclin county.</p> <p>This was an action of ejectment commenced May 1st 1863, by Emanuel Secrist against John Zimmerman, executor, &c., of Jacob Zimmerman, deceased, for a tract of land containing 77 acres. The plaintiff deduced his title through George Yeakle, between whom and Jacob Zimmerman, the testator (whose land adjoined Yeakle’s), there had been disputes about the title to this tract. On the trial the plaintiff proved that in 1848 the surveyor, at the request of both Zimmerman, the testator, and Yeakle ran a line between their lands, which was consented to by them, and by which Yeakle would have taken the land in controversy.</p> <p>The defendants then gave in evidence a record showing that on the 19th of November 1856, the executors of Zimmerman brought an action of ejectment against Yeakle for this land, and on the 2d of November 1857, Yeakle confessed judgment to the plaintiff for the land in dispute with costs. A motion was afterwards made to open the judgment and testimony taken; — but the rule was discharged. On the 3d of January 1863, Yeakle conveyed his title in the land to Secrist.</p> <p>The court below (King, P. J.) charged: — “ May not a party waive the advantage that he may claim under the Act of Assembly that requires two verdicts in the same way, and judgments thereon to determine the title ? We think he may, and in no mode more effectually than by a solemn confession of judgment in open court. Such a judgment is not like a judgment by default, or on an award of arbitrators, which have been held not to be conclusive of title, but it is an admission of the plaintiff’s title in such a form as ought to put an end to all controversy.”</p> <p>The verdict was for the defendant. The charge of the court was assigned for error on the removal of the case to the Supreme Court by the plaintiff.</p> <p>cited Mercer v. Watson, 1 Watts 342; Stevens v. Hughes, 7 Casey 385; Acts of March 21st 1806 ; 13th April 1807, § 4, 4 Sm. L. 332, 447; 21st April 1846, § 1, Pamph. L. 424, Purd. 364, 366 ; Ives v. Leet, 14 S. & R. 303; Treaster v. Fleisher, 7 W. & S. 137; Drexel v. Man, 2 Barr 267; Brown v. Nickle, 6 Id. 390 ; Kinter v. Jenks, 7 Wright 449.</p>

<p>Error to the Court of Common Pleas of Dauphin county. This was an action of debt to April Term 1866, by the Commonwealth, of Pennsylvania against the Lehigh Crane Iron Company. The declaration was that the defendant was indebted to the Commonwealth in the sum of $45,000, “ on an account examined, adjusted, settled and signed by the auditor-general of this Commonwealth, and duly entered in the books of his office, as authorized and required by law, on the 20th day of July 1865, in which the said sum of forty-five thousand dollars is due and owing the said plaintiff from the said defendants, with interest thereon from the 20th day of October 1865, for tax on capital stock, which said account was, on the 20th day of July 1865, submitted to, revised and approved by the state treasurer, and a copy thereof, within thirty days thereafter, sent by the said auditor-general, under his hand and seal of office, to the said defendants, and which yet remains in full force against the said defendants, and unappealed from.” The account settled against the defendant was filed with the declaration.</p> <p>The account, besides tax which was not disputed, was the following :—</p> <p>1845. The company distributed $100,000 of surplus profits among the stockholders, and thereby increased their capital stock to $200,000. Tax 50 • mills on $100,000, ..... 5,000.00</p> <p>1854. Dividend $300,000, added to capital as before.</p> <p>Tax 75 mills on $200,000, .... 15,000.00</p> <p>1863. Dividend $500,000, added to capital as before. Tax 50 mills on $500,000, . . 25,000.00</p> <p>Due Commonwealth, .... $45,000.00</p> <p>Settled by the auditor-general, July 20th 1865, and approved by the state treasurer the same day.</p> <p>The company went into operation in the year 1836. Its original capital was $100,000, which was all paid in. From its profits it enlarged its business, erected new buildings, &c., and in this manner, up to 1865, invested $900,000 in addition to the original capital, thus increasing the capital to $1,000,000. They declared dividends at the rate of 6 per cent, on the capital, as it was from time to time increased, and on those dividends paid tax. The claim of the Commonwealth was on the $900,000 as dividends.</p> <p>On the trial there was a question raised whether the defendants had received notice of the settlement of their account, and evidence as to this question was given by both parties.</p> <p>The court (Pearson, P. J.) charged:—</p> <p>“ That bringing suit is sufficient notice under the statute. We instruct you that the settlement is conclusive, and your verdict must be in favor of the commonwealth for forty-five thousand dollars, with interest from the 20th day of October 1865.</p> <p>“ This company has lost nothing by omitting to appeal. After increasing the capital stock at different times until it amounted to -dollars, the corporation made a dividend in the form of stock amounting to a sum the tax on which, computed as a dividend in money, was $45,000, and now contends that this is not such a dividend as is subject to taxation. We are unable, on principle, to see any difference between a stock and á cash dividend ; and we have direct authority in the decision of our own Supreme Court, declaring that there is none.”</p> <p>The verdict was for the Commonwealth for $47,985. The defendants took a writ of error and assigned for error the portions of the charge above stated.</p> <p>citéd Act 30th March 1811, § 38, Purd. 820, 5 Sm. 236; Iiays v. The Commonwealth, 3 Casey 272; Hultz v. Same, 3 Grant 61; Philadelphia v. Same, 2 P. E. Smith 451 ; Bridge v. Erailey, 13 S. & R. 422; Commonwealth v. Holmes, 1 Jones 468; Commonwealth v. Duffield, 2 Id. 277; Canal Company v. Commonwealth, 7 Wright 227 ; Pennsylvania Bank Accounts, 3 Id. 110.</p> <p>cited Act of March 30th 1811, Purd. 820, 5 Sm. L. 236; Spangler v. Commonwealth, 8 Watts 57; Hutchinson v. Commonwealth, 6 Barr 124; Commonwealth v. Reitzel, 9 W. & S. 112; Hays v. The Commonwealth, 3 Casey 272; Hultz et al. v. The Commonwealth, 3 Grant 61; Philadelphia v. The Commonwealth, 2 P. E. Smith 451; Commonwealth v. Cleveland, Painesville and Ashtabula Railroad Company, 5 Casey 373.</p>

<p>1. A railroad company was incorporated subject to the provisions of the Kailroad Law of February 19th 1849, with a provision that it should not be taxed until its dividends amounted to 6 per cent, per annum. A subsequent act subjected all corporations to a tax on each 1 per cent, of dividend. Held, that the company was taxable under the latter act on a dividend less than 6 per cent, per annum.</p> <p>2. The provision in the Act of 1849 allowing the legislature to amend, &c., charters, authorized the imposition of the tax by the latter act.</p> <p>3. Whenever a power to repeal, alter or amend a charter is reserved in it, its exercise does not impair the obligation of the contract.</p>

<p>Election officers of a ward, in 1864, by virtue of Acts of Assembly, borrowed money to pay bounties, but the amount of tax they were authorized to levy in one year was not sufficient to pay the loan. The officers of 1865 took no steps to raise the balance. Held, that the officers of 1866, on the application of the unpaid bondholders, could be compelled, by mandamus, to levy a tax for that purpose.</p>

This was an action on the case, brought to April Term 1859, by Mary Weger, widow of John Weger, against the Pennsylvania Railroad Company, for negligence in their servants, which caused the death of her husband. Weger was a tender to stonemasons in the employ of the defendants, and John Wilber was the foreman. The men were working at Bailey’s station, on the middle division of the road, and boarded at Newport, five miles distant.

In this case the Attorney-General filed a suggestion for a quo warranto to the President, Managers and Company to show by what warrant they claim the franchise, &c., to have and maintain their toll-house and gate No. 8, located opposite Rittenhouse street, at a point called Germantown, between the fifth and sixth mile-stones, on the turnpike of said company, and to continue to demand and receive toll thereat; to erect and maintain a toll-gate on the line of their said…

<p>Error to the Court of Common Pleas of Centre county.</p> <p>This was an action of assumpsit to August Term 1865, by William Jamison against the township of Gregg.</p> <p>The plaintiff declared that he had had mustered into the naval service of the United States a substitute to be credited to the township of Gregg, and paid the substitute a sum exceeding $300 in accordance with a contract made with him, and that the township about that time offered to each volunteer who should be credited upon the quota of the township $300, and that, therefore, the township became liable to pay the plaintiff that sum.</p> <p>On the trial the plaintiff gave evidence under objection and exception, that pursuant to notice a meeting of taxpayers was held in the township about January 1865, to take into consideration the impending draft, at which it was announced that there would be a meeting of the citizens the next week to vote on the question. An election was accordingly held, and there was a majority for a bounty.</p> <p>The regular election for supervisors was held on the 17th of February, and John Ream and John B. Heckman were elected.</p> <p>At a subsequent meeting, February 28th, it was announced that $500 bounty should be given to each volunteer, and to any one putting in a substitute: $300 to be raised by taxation, and $200 by subscription. John B. Heckman, one of the supervisors elect, was present, who said if the $200 by subscription were raised, the tax should be levied to pay the $300. During the meeting the president announced that the subscription for the $200 had been filled, and that the plaintiff was present at the meeting. Neither of the supervisors elected in 1864 were present. The voluntary subscriptions were all paid. Heckman, the supervisor, testified that he agreed to pay $300 to be raised by taxation, and that Ream, the other supervisor, told him that he agreed to what' was done at the meeting. ■ Heckman and Ream gave bond, and were sworn in on the 14th of March.</p> <p>Defendant gave evidence that at a meeting held about March 8th, the president announced that they had received information that no men could be mustered into the service unless they came from the district, &c., and it was concluded “ by the house” that it was no use to put in volunteers; — the meeting adjourned to the 13th, “ for every man to come and receive back their subscription ; they came on that day and drew their money.”</p> <p>John Ream, one of the supervisors, testified that he never agreed “ to pay a bounty or levy a tax to pay a bounty.” He also said, “ I don’t know that I said I would assent to what was done at the meetings after I was elected. Heckman and I had no conversation on that subject that I remember.”</p> <p>The plaintiff called Jacob Neese, who under objection and exception testified that Ream said to him, “ I never attended any of the meetings, but always said I would agree however they made it.” Others testified to the same effect. There were no written points submitted.</p> <p>Linn, P. J., charged :—</p> <p>“ The evidence pretty clearly establishes that at one of the meetings held by the people of the township after or about the time of the draft, John B. Heckman, one of the supervisors, being present, did offer to raise $300 of the $500 proposed to be given as bounty, by taxation upon the citizens of the township, the remaining $200 being made up by private subscriptions.</p> <p>“That such an engagement to the plaintiff, amongst others, was made by Heckman publicly in the meeting, seems to be quite distinctly proven by a number of witnesses. But the defendant contends that, notwithstanding you may believe this to be true, it does not render the township liable, for several reasons: First, Because the offering of a bounty, being an act requiring deliberation, both supervisors must unite in order to bind the township, and that the offer in this case having been made by Heckman alone, it is not binding. It is quite clear from the evidence that Mr. Ream, the other supervisor, was not present at any of the meetings spoken of by the witnesses, and if he did not concur in the offer made by Heckman, the township is not bound by the act of Heckman alone. [But if you find from the evidence that Ream, being informed of what was done at the meetings, and of the offer of bounty on the part of the township made by Heck-man, assented to what had been done ; and that afterwards the plaintiff, acting upon the faith of the offer of bounty, procured a substitute, had him credited to Gregg township and paid him $1300, so far as concerns this objection, the township are bound by the offer, and if the plaintiff is embraced in the offer made, he is entitled to recover.]</p> <p>“ What the terms of the offer were, and whether the plaintiff’s case falls within it, is referred to you as a question of fact.</p> <p>“ But again, the defendant objects that the supervisors, even if they had united in the offer, could not bind the township by any act of theirs, because at the time the offer was made by Heckman, neither of the supervisors had been inducted into office, and were therefore incapable of doing any valid official act. The evidence shows that, although they had been elected previous to' the time at which the bounty was offered, they did not give bond and take the oath of office until the 13th of March 1865. [We instruct you, however, that if they had previously been elected to the office of supervisor, and were recognised and acting as such, as to the plaintiff their acts would be binding upon the township, notwithstanding they were not fully and formally qualified, by entering bail and taking the oath of office until the 13th of March; which was within one month after the time of their election.]</p> <p>“ Third, It is objected that the plaintiff cannot recover under the 3d section of the Act of 25th of August 1864, because he is not in the category contemplated by the act, that being already drafted at the time the offer was made, he is not ‘ a person liable to draft.’</p> <p>“ This construction of the act involves too delicate a refinement. We think that it is no objection to a recovery by the plaintiff under this statute that the offer of bounty was not made by the township until after the draft took place.</p> <p>“If then, you believe that an offer of bounty was made to the plaintiff, by the supervisors, that if he would procure a substitute and have him credited to . Gregg township, he should be paid a bounty of $300 by the township, which offer was concurred in by both supervisors — or if you find that a bounty of $300 was offered by the supervisors of the township, to assist in filling the quota of the township for that draft, and that after such offer had been made, the plaintiff being a drafted man and a citizen of Gregg township, procured a substitute, and had him mustered into the service of the United States for one year or longer and cre'dited to Gregg township, and paid him a sum exceeding $300 — he is entitled to recover the amount of bounty offered, in either case, with interest thereon from the time the substitute was entered to the credit of the township. If neither of these propositions are established by the evidence, your verdict should he for the defendant.”</p> <p>The verdict was for the plaintiff for $337.50.</p> <p>The defendant took a writ of error and assigned for error the admission of the evidence objected to, and the parts of the charge enclosed in brackets.</p> <p>cited Stockton v. Demuth, 7 Watts 39 Brice v. Clark, 8 Barr 301; Cooper v. Lampeter, 8 Watts 125; Batteu v. The Township of Brandywine, 5 P. L. J. 546; Dull v. Ridgeway, 9 Barr 272; Riddle v. Bedford Co., 7 S. & R. 392 ; Keyser v. McKissan, 2 Rawle 139; Neal v. Overseers, 5 Watts 538 ; Sharpless v. The Mayor of Philadelphia, 9 Harris 147 ; Speer et al. v. The School Directors of Blairsville, 14 Wright 150; Norman v. Heist, 5 W. & S. 171; Tyson v. School Directors of Halifax Township, 1 P. F. Smith 9.</p> <p>cited Wertz v. May, 9 Harris 279 ; Acts of 25th August 1864, § 3, Pamph. L. 986; of 15th March 1865, § 1, Pamph. L. 24; Riddle v. The County of Bedford, 7 S. & R. 392; Keyser v. McKissan, 2 Rawle 139; Neale v. The Overseers, 5 Watts 528; Margill v. The Hazleton Coal Co., 4 W. & S. 424; Brunott v. McKee, 6 Id. 514.</p>

<p>Error to the Court of Common Pleas of Centre county.</p> <p>This was an action of assumpsit brought August 16th 1865, by William H. Musser against the School District of Ferguson township, to recover a bounty as a re-enlisted veteran volunteer. The plaintiff originally volunteered in Ferguson township, and served in a company in the 45th Regiment of Pennsylvania Volunteers. In 1863 a draft was made. Then two calls, amounting to 500,000 men, were made. Early in 1864, the two calls of 500,000 men, having come close to each other, the quota to the several localities was assigned in both together. Afterwards there was an order to consolidate the draft of 1863 with the other calls, which made in all 700,000 men, and to credit the township with what had been done under the draft of 1863. Under the consolidated quota, there were 59 men assigned to Ferguson township. A meeting of the citizens of the township was held about February 1864 (at which some or all of the school directors were present as individuals), in relation to raising money to pay bounties. The understanding was at the meeting that an act would be procured authorizing a tax to refund the money advanced for that purpose. There had been 19 re-enlistments of veterans into the United States service, which about the 15th of April 1864, were credited to Ferguson township; of these the plaintiff was one. A meeting of the citizens of the township was held in August or September 1864, at which it was submitted to a vote whether a tax should be raised to pay the bounties; the vote was in favor of laying the tax, The school directors by resolution in due form offered a bounty of $300, and, at the same time, they resolved to lay a tax, for the purpose of paying the notes given to raise money to procure volunteers the previous spring. The tax was afterwards assessed and collected by the school directors.</p> <p>The court (Linn, P. J.) charged:—</p> <p>“ Now, under the evidence in the cause, the substance of which I have stated, the plaintiff claims to recover bounty under the 12th section of the Act of 25th of March 1864, Pamph. L. 90.</p> <p>In this we instruct you he must fail, because although he did originally volunteer in Eerguson township, and it would seem was credited, on the draft mentioned in the act referred to, as a veteran volunteer, to Eerguson township, yet it is not in evidence, that any bounty was offered or paid, under the provisions of the act, to volunteers from that locality to fill the quota for that draft; and the facts relied on by counsel for plaintiff, that a public meeting of the citizens was held, to take measures to fill the quota, at which some of the school directors were present, that funds were subscribed and raised upon loan to pay volunteers, with the expectation that a tax would be laid in future to refund the sums, so raised, to the contributors; and that with the moneys so raised, twenty-seven volunteers were procured and mustered in, to fill the quota of the township, do not vary the case so as to bring it within the provisions of the act. It does not in our opinion, make out a case for a recovery of even the minimum sum paid for volunteers in 1864.</p> <p>“The plaintiff’s counsel further contend, that although no offer of bounty was made by the local authorities to fill the quota assigned to the township upon the previous draft, yet an offer was afterwards made to fill the quota under the call for 500,000 men, and that the plaintiff is not restricted to an offer made to fill the quota under previous calls, but may claim the $300, offered in the summer of 1864 for volunteers. We cannot accept this as a reasonable interpretation of the statute and must therefore instruct you, that under the provisions of the Act of 1864 the plaintiff cannot recover in this action.</p> <p>“ But plaintiff asks us to instruct you, that although he may not have shown a claim which will entitle him to recover under the Act of 1864, still he is entitled to receive the sum of $300, under the 1st section of the Act of 1st May 1866, Pamph. L. 114, providing for the payment of bounty to veteran volunteers. To this the defendant replies, that the present action having been brought in 1865, and there being at that time no cause of action, the case cannot be helped out by a subsequent statute. We think this objection is well founded.</p> <p>“ Upon the whole, the plaintiff not having in any aspect in which the case can be viewed, shown a right to receive bounty in this action, under either of the statutes relied upon, it is your duty to render a verdict for the defendant.”</p> <p>The verdict was for the defendant, and upon the removal of the case to the Supreme Court by the plaintiff, the charge of the court was assigned for error.</p> <p>cited Acts of 25th March 1864, Pamph. L. 90, and 1st May 1866, Pamph L. 114; Hepburn v. Curts, 7 Watts 300 ; Schenley v. The Commonwealth, 12 Casey 56; Thomas v. Leland, 24 Wend. 65; Speer v. School Directors of Blairsville, 14 Wright 157.</p> <p>cited the same Acts of Assembly'as plaintiff in error; Dewa-rt v. Purdy, 5 Casey 113 ; Ogle v. The Turnpike Co., 13 S. & R. 256; Bed-ford v. Shilling, 4 Id. 401; Underwood v. Lilly, 10 Id. 97 ; Tate v. Stooltzfoos, 16 Id. 35; Bleakney v. The Bank, 17 Id. 64; Mercer v. Watson, 1 Watts 330 ; Braddee v. Brownfield, 2 W. & S. 271; Evans v. Montgomery, 4 Id. 218 ; Hinkle v. Riffert, 6 Barr 196; Biddle v. Starr, 9 fd. 461; Turnpike Co. v. The Commonwealth, 2 Watts 433 ; Estep v. Hutchman, 14 S. & R. 435; Bambaugh v. Bambaugh, 11 Id. 191; Smith v. Merchand, 7 Id. 260; Gault’s Appeal, 9 Casey 94; Hepburn v. Curts, 7 Watts 300; Schenley v. The Commonwealth, Í2 Casey 58; Austin v. The Trustee, 1 Yeates 260; Lambertson v. Hogan, 2 Barr 22; Rogers v. Smith, 4 Id. 93 ; Bolton v. Johns. 5 Id. 145 ; Fenelon’s Petition, 7 Id. 173; Dale v. Medcalf, 9 Id. 108; McCarty v. Hoffman, 11 Harris 507; Reiser v. The William Tell Saving Fund, 3 Wright 137; Killam v. Killam, Id. 120; Menges v. Dentler, 9 Casey 495; Speer v. Blairsville, 14 Wright 157; Sharpless v. Mayor of Philadelphia, 9 Harris 165; Barnet v. Barnet, 15 S. & R. 72.</p>

<p>1. Ejectment is not well brought against administrators to compel specific performance of a contract of their decedent.</p> <p>2. Such ejectment must be brought by the holder of the legal title in order to command a verdict against the equity of the purchaser, and must be against the purchaser or some one representing his title.</p> <p>3. The interest of the purchaser in realty is represented by his heir, not by his administrator.</p> <p>4. The Act of April 9th 1849 applies only to the executor or administrator of the vendor, on the principle that as to the vendor the land by the sale is converted into personalty.</p> <p>5. Adams agreed to sell land to'Engles subject to a mortgage created by Adams. The land was sold by the sheriff for the mortgage-debt and bought by Engles. Held, that Adams could not, by ejectment, compel specific performance by Engles of the contract.</p> <p>6. Equity may compel the purchaser to pay what is due under the contract but cannot divest a title fairly acquired at a judicial sale.</p> <p>7. Garrard v. Lantz, 2 Jones 186, and Peebles v. Reading, 8 S. & R. 491, remarked on.</p>

This was an action of debt by the Commonwealth, at the suggestion of the county of Juniata, against Noah Elder and others, sureties, who survived George W. Stroup, late treasurer of the county, on his official bond. Stroup was the treasurer of the county for the years 1860 and 1861.

This was an action of ejectment to April Term 1866, by William Curran and others against John McMeen and John Kauffman. The question arose under the will of David Walker, dated August 27th 1829 and proved September 3d 1831.

<p>1. On the return of an inquisition of partition in the Orphans’ Court, the judge endorsed the confirmation, and a direction' for a rule upon heirs to issue, without fixing a day for its return; the clerk issued the rule and made it returnable to the first day of the next term. This was fixing a day for the return of the rule.</p> <p>2. When the first day of the term was fixed for heirs to appear under a rule to accept or refuse, they were bound to attend before the court as other suitors till they were called.</p> <p>3. The court directed the rule to be published in two papers ; the return showed that it had been published but in one, and the return was approved by the Orphans’ Court. Held, that as the publication was to the extent required by the act, the approval by the court cured the non-compliance with its order.</p>

<p>. A treasurer of a borough in a settlement of his official account cannot have a credit for an individual claim against the borough.</p> <p>2. The subject of the settlement must be his official receipts and disbursements, and he is chargeable with money coming into the treasury by way of loan whether from himself or others.</p> <p>3. He could not repay his own or any other person’s debt without an order of the town council.</p>

<p>1. The words “ parents” and “ children,” in the Act of 26th April 1855, relating to actions for personal injuries by negligence, are used to indicate the family relation in point of fact as the foundation of the right of action without regard to age.</p> <p>2. Under age the relation is presumed to exist until the contrary appears; over age it must be shown to exist.</p> <p>3. The rule is that if there be a reasonable expectation of pecuniary advantage from a person bearing the family relation, the destruction of such expectation by negligence occasioning the death of the party from whom it arose, will sustain the action.</p> <p>4. The deceased had made an arrangement to become a substitute for a drafted man and had declared his intention of giving his bounty money to his parents. He was on his way to consummate the arrangement when he was'killed on a railroad train. Held, that these facts were proper evidence on the question of the continuance of the family relation.</p>

<p>Error to the Court of Common Pleas of Huntingdon county. This was an action of trespass q. e. f. to August Term 1864, brought by Michael J. Grove against Edward E. Hodges.</p> <p>Michael Garner was the owner of the locus in quo on the 16th of June 1855. On that day an instrument of writing was executed as follows:—</p> <p>“ Article of agreement made this 16th day of June, A. D. 1855, between Michael Garner, of Penn township, Huntingdon county, Pennsylvania, and William H. Irwin, of Lewistown, Pennsylvania, as follows: The said Michael Garner hereby sells to said Irwin, for the consideration of twenty-five cents per ton, the right to mine, take and carry away the iron-ore on and in the land owned by said Michael Garner, situated in Penn township, Huntingdon county, Pennsylvania, bounded by land of Philip Garner on the north, Samuel Hetrick on the south, Philip Garner on the east, mountain lands on the west, containing about forty acres, and Irwin agrees to pay said Michael Garner the sum of twenty-five cents for each ton of iron-ore mined on the lands of the said Michael Garner, and agrees to pay said M. Garner the sum of thirty dollars for each acre of the land of said Michael Garner which Irwin may destroy or dig up by his mining operations, and Irwin stipulates to commit no wanton waste or damage to the land of the said Michael Garner. This agreement to extend to the heirs and assigns of the parties. Witness the hands and seals of the parties.</p> <p>Witness, Michael Garner, [l. s.]</p> <p>Jacob F. Hoover. William Irwin, [l. s.]</p> <p>By agent Miles McHugh.</p> <p>State of Pennsylvania, \</p> <p>Huntingdon county, ss</p> <p>On the 21st day of June, A. D. 1855, personally appeared before me, a justice of the peace in and for said county, Jacob F. Hoover, who, being duly sworn according to law, saith that he saw Michael Garner and William PI. Irwin by his agent, Miles H. Hugh, the within named parties, sign and seal the within indenture as their voluntary act and deed, and that the said Jacob F. Hoover subscribed his name at the same time as an attesting witness. Witness my hand and seal the day and year above written.</p> <p>John PIouseholder, J. P. [l. s.]”</p> <p>This instrument was recorded in Huntingdon county July 17th 1855.</p> <p>To January Term 1856 a judgment was recovered against Irwin for $501.40, and a fi. fa. was issued on it.</p> <p>The sheriff returned: “Also by direction of plaintiff’s attorney, I levy on all the following mentioned rights and interests of said defendant evidenced by the agreements and conveyances recorded in Huntingdon county, &c., * * to wit: — •</p> <p>“ All defendant’s interest and right to mine, take and carry away the iron-ore on. lands of Michael Garner, in Penn township, Huntingdon county, containing about 40 acres, bounded by lands of Philip Garner, Samuel Hetrick and Tussey Mountain lands.”</p> <p>To the venditioni afterwards issued the sheriff returned that he had sold:—</p> <p>“ All the defendant’s right, title and interest to mine and take away the iron-ore on the following property, to wit: the iron-ore on land of Michael Garner, in Penn township, to Jacob Cresswell, for |35.”</p> <p>The deed to Cresswell was acknowledged August 19th 1857.</p> <p>On the 1st day of December 1863 Garner, in consideration of $ 1, granted to Michael J. Grove, his heirs, executors, administrators and assigns, all the iron-ores in, upon and under that certain tract of land situate in Penn township, in the county of Huntingdon, &c., containing 48 acres more or less, adjoining lands of Philip Garner, &c., with the full and exclusive right, liberty and privilege of quarrying, mining, raising, searching, digging, delving, taking and carrying away said iron-ores, and also the right and privilege of good roads, free ingress, regress and egress and of convenient and sufficient room, on said premises, to mine, put and pile and keep the said iron-ores and the rubbish of the quarries and mines, and the earth, stones, refuse, timber, props, and every other material or refuse that may be removed or otherwise concern the quarries and mines or the quarrying, mining and removing of the said iron-ores ; and also the right of way for railroads to connect with other railroads or wagon-roads, and also the right to sufficient room on the said premises to erect the necessary fixtures, houses, machinery, &e., to mine and raise said iron-ores, and pump the water of the quarries and mines, and run the same on said premises ; and also the right to dig ditches to drain the same, or the grounds belonging thereto, as well as the right to all other acts concerning the mining, quarrying, working or removing, at any and all times hereafter, of the said iron-ores, on and from the said premises by the said Michael J. Grove, his heirs, servants, executors, administrators and assigns, contained in, upon and under the aforesaid certain tract of land, as fully as if he or they were the actual owners of the said premises described as above mentioned, to have and to hold all the said iron-ores in, upon and under the above-mentioned and described tract of land, and all the rights, liberties, privileges and easements in, upon, to, over, under or through the said tract of land and the hereditaments and premises hereby granted or mentioned and intended to be, unto the said Michael J. Grove, his heirs and assigns, to and for the only proper use and behoof of the said Michael J. Grove, his heirs and assigns for ever: In consideration whereof the said Michael J. Grove, his heirs, executors, administrators and assigns, covenant and agree with the said Michael Garner, his heirs, executors, administrators and assigns, that he, the said Michael J. Grove, his heirs and assigns, will, at the expiration of every three months, whenever the said iron-ores are mined or quarried on and removed from the said premises, render unto him, the said Michael Garner, his heirs, executors, administrators and assigns a true and correct account of all the iron-ores that are removed and taken away from said premises during such time, and thereupon pay him or them for the same the sum of 25 cents for each and every ton, &c.</p> <p>This deed was recorded December 8th 1863.</p> <p>Grove shortly after commenced to dig for ore on the premises, and has been mining there since.</p> <p>On the 30th of March 1864 Creswell, the purchaser at sheriff’s sale of the right of Irwin, sold and conveyed it to Edward F. Hodges; the deed was recorded in Pluntingdon county on the next day. Shortly after this Hodges commenced mining near to where Grove was mining, and in the same vein: and hauled the ore away.</p> <p>This was the trespass for which the suit was brought, and the question turned upon the effect of the “ article” of Garner to Irwin. On the trial, before Taylor, P. J., the record of the agreement to Irwin was offered by the defendant, but objected to by the plaintiff, unless accompanied by proof of authority in McHugh to execute the article.</p> <p>The objection was overruled, and an exception taken.</p> <p>The defendant having given the evidence showing Irwin’s title to be in Hodges, offered the deposition of McHugh, regularly taken in Illinois, on commission, to prove that McHugh was acting as agent for Irwin in making the agreement with Garner.</p> <p>This was objected to by the plaintiff as not tending to prove authority in McHugh to “ execute the agreement to Irwin and seal the same for him.” The objection was overruled, and an exception taken.</p> <p>In answer to one of the interrogatories, the witness said:—</p> <p>“ I have not the power of attorney, and do not know where it is. It was given me in April 1855, and I was to take charge of his business May 9th 1855. I was to open some coal drifts, and to act as his agent in mining and shipping of coal. I cannot say that this writing stipulated that I was to act as his agent in procuring ore leases specially, but I understood from it that I was to attend to his business generally, and as his general agent. This paper was written by Mr. Irwin, and was under his hand and seal. I cannot say that this paper gave me the authority to execute agreements for mining grants under seal. I do not recollect whether it did or not. I have made diligent search for this paper, but cannot find it.”</p> <p>Irwin testified for plaintiff that he thought he had not given to McHugh a power of attorney or any written authority (unless it were a letter) to make an ore-lease with Garner, or to sign his, Irwin’s, name.</p> <p>There was evidence for the plaintiff by Garner that when McHugh came to him about the agreement with Irwin he said that it would be an inducement to build a furnace or two ; that McHugh said a furnace would be built in a year, or at most within two years ; the points designated for the furnaces were Marldesburg and McOonnelstown; that with this understanding Garner leased to Irwin.</p> <p>There was no furnace put up, and Irwin never took any ore out. Money had been received by Garner from Hodges for taking out ore.</p> <p>The plaintiff offered to prove that the Garner vein of ore, with others in the vicinity, had greatly increased in value by building the Broad Top Railroad since the date of Irwin’s agreement. The evidence was rejected, and an exception taken.</p> <p>The plaintiff asked the court to charge:—</p> <p>1. That there was no evidence in this cause of any authority in Miles McHugh sufficient in law to enable him to execute for William H. Irwin the sealed agreement with Michael Garner, dated the 16th of June 1855, and therefore the said agreement was not binding upon either Michael Garner or William H. Irwin, and the said William H. Irwin did not acquire thereby any right to mine ore on the tract of land mentioned in the said agreement or any interest in the same.</p> <p>2. That there is no evidence in this cause of any act or thing done by Michael Garner, William H. Irwin or Jacob Cresswell, prior to the date of the deed from Michael Garner to Michael J. Grove, which made the said agreement of 1855 binding upon Michael Garner in law or equity.</p> <p>3. That the said agreement was void at law for want of authority under seal in Miles McHugh to bind Irwin by an instrument under seal, and could only acquire validity in equity by ratification or adoption by both Irwin and Garner, but that a chancellor would never afford his aid in giving it vitality after such laches and change of circumstances as characterize this case.</p> <p>4. That under the evidence in this cause Michael Garner had, on the 1st day of December 1863, a perfect right in law and equity to convey to Michael J. Grove in fee simple, clear of all interest, rights or claims by or under the agreement of 1855, all the iron-ore in, upon or under the tract of land mentioned in the said agreement, and that his deed of that date, given in evidence, conveyed all the iron-ore to the said Michael J. Grove, in fee simple, clear of any right to mine or take away any of the said iron-ore in William H. Irwin, or any person claiming under him.</p> <p>The points were all denied.</p> <p>The court, after stating the plaintiff’s and defendant’s titles, further charged:—</p> <p>“ It is answered on the part of the plaintiff that the agreement with Irwin is not valid and operative, so as to give the defendant any rights: 1, because defectively executed; 2, for the reason that it is merely an executory contract, and has remained unacted upon for such a period that it should not be regarded as valid or conferring any right; 3, that the Act of Assembly of 1856 applies to it, and that under the operation of that act it is void and inoperative.</p> <p>“ The only construction we can put upon the agreement with Irwin, in view of what is ruled in the Cambria Iron Company case is, that it was not a grant of the whole of the ore, but only a right to mine; not an exclusive, but a concurrent right. Irwin had a right to go and mine; but Garner, and, after his agreement with Grove, Grove, had also a right to go and mine. This is the construction warranted by the case cited. How, then, would the parties stand ? It would follow that while Garner in 1863 conveyed by a deed fully sufficient for that purpose, all the ore, provided he then had it to convey, his grantee took it subject to the operation of the instrument on record— that is, a grant or license to Hodges to mine concurrently with him. This, assuming the contract with Irwin to be valid and operative. Let us inquire whether its effect and operation are destroyed for any of the reasons urged by the plaintiff.</p> <p>“ I. It is alleged to be defectively executed, and, for that reason, void. It is said that Irwin was not present; that McHugh had no authority under seal; no power or authority from Irwin to execute an agreement under seal; and that it is not, therefore, Irwin’s deed, or binding upon him. Does this invalidate the instrument as the deed of Garner; or a grant or license to Irwin to mine ore at a stipulated price per ton ? [It is true, and a well-understood rule of the law of agency, that where the agent has no power under seal, and undertakes to sign the name of his principal, and to add a seal, it is not the deed of his principal; and this instrument, it must be admitted, is not the deed of Irwin, but, with respect to him, defectively executed. But still, it is claimed by the defendant to be a grant by Garner, signed and sealed by him, and his deed; and that, since the only covenant on the part of the grantee is to pay 25 cents per ton for the ore mined, if Irwin accepted it, and he or any one claiming under him acted upon it, he would be liable in assumpsit for the ore mined according to its terms, and that the objection that it lacks mutuality is without force. We are of opinion that the view here urged by the defence is correct, and so instruct you; that this instrument is to be treated as the deed or grant of Garner to Irwin, if the latter accepted it, and treated and acted upon it as such.]</p> <p>“ II. It is objected further, that it is a mere executory contract, and that a chancellor would not give effect to it, so as to enable these parties to take and enjoy rights under it.</p> <p>“ [We cannot regard it as an executory contract. It grants or conveys everything in contemplation of the parties as intended to be granted or conveyed. There is nothing to indicate that the contract was to be put in any other form. We think, therefore, that the cases cited on the subject of specific performance, do not apply. No decree is necessary to make it a grant; it is so by its terms.]</p> <p>“ III. [The other objection is, that this agreement, assumed to be executory in its character, comes within the statutory limitation. Assumed to be such, it would come within the terms of the Act of Assembly ; but it is a grant or license and not, in our opinion, within its operation.]</p> <p>“ [Evidence was offered by the plaintiff to show that McHugh said, when the agreement was executed, or when negotiation was going on, that Irwin intended to put up a furnace in one or two years ; and that Marklesburg or McConnellstown was designated as the point; and it is claimed further that because that was not done, this instrument is inoperative and invalid. We have been unable to come to the conclusion that this evidence is entitled to any force either in construing the instrument, or as evidence of fraud to be submitted to the jury.] There is no allegation of any misrepresentation as to any matter of fact. If there were any promises made which might be claimed to be conditions of the grant, we should find them in the instrument itself. Evidence of this character cannot be allowed the effect of changing it, or varying its terms.</p> <p>“ [Upon the whole we are of opinion that this paper, for anything urged to the contrary, is a valid license to Irwin, and Hodges, claiming under him, to enter and mine iron ore, if it was accepted and has been held and acted upon as such. We admit that there are cases which look towards limiting the operation of such grants, where, for any considerable time, nothing has been done in pursuance of them ; but none which we think warrant us in declaring this instrument void upon that ground.]</p> <p>“ [We instruct you, then, that if you find that Irwin received and accepted and acted upon this instrument, claimed under and ratified it, the defence should prevail, and your verdict be for the defendant.] If, on the other hand, the evidence is not sufficient to satisfy you that Irwin did accept of and ratify it, the plaintiff would be entitled to recover, and it would be for you to assess the damages.”</p> <p>The verdict was for the defendant, and the plaintiff took a writ of error.</p> <p>He assigned for error the ruling of the court on the evidence ; the answers to his points and the portions of the charge in brackets.</p> <p>— The deed to Grove vested a fee simple in the whole of the iron-ore, in the land described, as a corporeal hereditament, severed in law from the soil in which it was imbedded, passing to the grantee an absolute estate in the ore, as a substratum, and leaving the remaining soil and estate in it, to the grantor: Caldwell v. Fulton, 7 Casey 484; Harlan v. The Lehigh Coal and Navigation Co., 11 Ibid. 287, 292; Tiley v. Moyers, 1 Ibid. 399. The smallest pecuniary consideration, or one of pecuniary value though ever so small, even a barleycor-n or peppercorn in a deed of bargain and sale, is sufficient to raise a use. Jackson v. Alexander, 3 Johnson’s Rep. 492; Moore v. Bickham, 4 Binn. 4; Okison v. Patterson, 1 W. & S. 395; Krider v. Lafferty, 1 Whart. 315, 316; Shep. Touch. 222; 2 Inst. 672; Fox’s Case, 8 Rep. 186 ; Barker v. Keat, 1 Mod. 262, 2 Id. 249. Where a consideration is expressed there can be no avei’ment to the contrary to affect the binding force of the deed: Wilt v. Franklin, 1 Binn. 218.</p> <p>1. Irwin’s agreement was void for defect of authority in the assumed agent, to bind his supposed principal. It was an agree-' ment in relation to land purporting to be under the seals of the contracting parties. Irwin’s name and seal are affixed by his assumed agent, Miles McHugh, who had no authority under seal to make the contract in Irwin’s name: Bellas v. Hays, 5 S. & R. 437 ; Co. Lit. 48 b ; Gordon v. Bulkley, 14 S. & R. 331, 332 ; McDowell v. Simpson, 3 Watts 137-8; Cooper v. Rankin, 5 Binn. 615-16. But to.meet this difficulty the defendant relied upon an asserted ratification by Irwin, evidenced by no act, save the putting of the agreement on record, which was of little significance: Chess v. Chess, 1 Penna. 32; Blight v. Schenck, 10 Bai'r 289; Green-leaf’s Ev. § 66; Blood v. Goodrich, 9 Wend. 68; 12 Ibid. 525, s. - c. Story on Agency, § 252; Hays & Wick v. Linn, 7 Watts 525; Paley on Agency, 158-59, 18 Law Lib. 3.</p> <p>The ratification could, by adoption, have made it the written lease of the lessor; it would have been good even under the Statute of Frauds and Perjuries. But whatever binding force was given to it by the alleged ratification, must be traced to a lower grade of contract: to a simple parol agreement on the part of the ratifying party. Is there any difference between the principle which governs here, and the principle of Vicary v. Moore, 2 Watts 451, that the alteration of a “ written contract by parol makes it all parol” ? If there be none, then, if Garner had joined in Irwin’s ratification of McHugh’s act, the agreement would have been of no higher grade than parol on both sides, and would have been within the prohibitions of the Statute of Frauds and Perjuries, having no greater “ force and effect than a lease or estate at will only” would have had. But Garner, neither by word nor act, ever assented to Irwin’s ratification. The obligation then on Irwin would rest on simple contract; on a parol agreement, whilst Garner, if bound, would be bound by an agreement under seal or by deed, in a case where both parties, upon the face of the instrument, were to be bound by obligations of the same grade. Here is the absence of mutuality of obligation which the instrument contemplated.</p> <p>2. The agreement then being invalid as to Irwin, it was not binding upon Garner. There must be mutuality in a contract to render it binding: Staines v. Wainwright, 8 Scott 280 ; 6 Bing. N. C. 174; Harrison’s Big. tit. Contract, Mutuality; Lees u. Whitcomb, 5 Bing. 34; M. & P. 86; 8 C. & P. 289; Frontín v. Small, 2 Ld. Raym. 1418; Fisher v. Cuthell, 5 East’s Rep. 497-8 ; Paley on Agency, 344, 345,18th Law Lib.</p> <p>If the act done, be intended to raise a duty in a third person, so as to subject him to damages for the non-performances of that duty, an unauthorized proceeding cannot be brought to have that effect by a subsequent sanction: Garrett v. Gonter, 6 Wright 143 ; Greenl. Ev., § 264.</p> <p>3. The agreement being void at law, it could only acquire validity in equity by subsequent ratification by both Irwin and Garner: Pollard v. Shaaffer, 1 Dali. 212; 1 Fonb. Eq. 37.</p> <p>Now the instrument set up by the defendant has been shown to be void at law, and in a court governed by “ strict rules of law” must be so adjudged. Where then is relief to be had by the party attempting to enforce it but in a court of equity, or in a court where chancery rules are applied ? If the confirmation was of any value, it must be made so, not in a court of law, but in a court of equity, or in a court where an action might be entertained based upon equitable principles.</p> <p>4. Would a chancellor ever enforce the agreement under the facts proved and offered to be proved ? Irwin was bound to exercise the rights granted to him within a reasonable time, as no consideration was paid for what his alienee now claims to have been vested in him. If he was bound to no duty and might exercise his rights at his own will and pleasure the contract would be unreasonable, and without any mutuality or reciprocity of benefit: Bodine v. Glading, 9 Harris 53, citing 1 Sch. & Lef.; 18 Com. Dig. 411; Newl. on Cont. 153; Watson v. O’Hern, 6 Watts 362; Sharp v. Wright, 28 Beav. 150 ; Rogers on Mines, Minerals and Quarries 289, 376, 377; Rogers v. Brenton, 10 Q. B. 64; McBride v. Weeks, 22 Beav. 533.</p> <p>In contracts for the lease of working mines, time, though not named, is from the fluctuating nature of the property, considered as of the essence of the contract, and the intended lessee may therefore fix a reasonable time for completion, and on the lessor’s default may rescind the contract: 2 Powell on Cont. 161; Bellas & Hays, supra; Gibson v. Patterson, 1 Atk. 12; Peebles v, Reading, 8 S. & R. 493; Dalzell v. Crawford, 1 Pars. 37 ; 1 Sugden 501; Patterson v.Martz, 8 Watts 379, 380 ; Tiernan v. Roland, 3 Harris 438 ; Taylor v. Longworth, 14 Pet. 174; Milward v. Earl Thanet, 5 Ves. 720.</p> <p>But the agreement was procured by misrepresentations and false inducements, in regard to the erection of furnaces: Paley on Agency 256,18 Law Lib. ; Cadman v. Horner, 18 Ves. 10, note 1; Sugden’s Vendors 190,191; Hornett v. Yielding, 2 Sch. & Lef. 553.</p> <p>5. Having been procured by misrepresentation and false inducements as before shown, the agreement was void, ah initio, on the ground of fraud: Cochran v. Cummings, 4 Dali. 250 ; Gilbert v. Hoffman, 2 Watts 66 ; Lowry v. Pinson, 2 Bailey 324 ; 2 U. S. Dig. 449 ; Story’s Eq. Jur. §§ 186, 192 ; Christ v. Diffenbach, 1 S. & R. 465; Hill v. Ely, 5 Id. 366; Clement v. Youngman, 4 Wright 346 ; Youngman v. Linn, 2 P. F. Smith 413 ; Harlan v. The Lehigh Nav. and Coal Co., 11 Casey 287; Beaupland v. McKeen, 4 Id. 130.</p> <p>6. Irwin & Garner’s agreement, at best,, was but an executory contract, which equity will not enforce under the facts proved and offered to be proved. If an executed contract or conveyance of an incorporeal hereditament can only be regarded as a deed of bargain and sale, its language is applicable only to that species of conveyance, and it is void for want of a pecuniary or valuable consideration expressed: Moore v. Bickham & West, 4 Binn. 3, 4; Jackson v. Sebring, 16 Johns. 515 ; Jackson v. Florence, 16 Id. 47 ; Jackson v. Delaney, 4 Cowan 427 ; Jackson v. Caldwell, 1 Id. 623 ; Jackson v. Pike, 9 Cowan 69.</p> <p>But the construction claimed for the defendant is not sound, and the agreement was to every intent executory. He invaded the rights of the plaintiff who was in possession of the ore vein, and gained whatever possession he had by trespass and -wrong. A Court of Chancery would restrain him by injunction: 2 Story’s Eq. Jur. § 929; Thomas v. Oakley, 18 Ves. 184; Livingston v. Livingston, 6 Johns. C. R. 497; Field v. Beaumont, 1 Swanst. 208 ; Smith v. Collyer, 8 Ves. 90; Mitchell v. Dors, 6 Id. 147 ; Hanson v. Gardiner, 7 Id. 305, 311, note 1; Courthope v. Mapplesden, 10 Id. 291; 2 Story’s Eq. §§ 695, 696, 697, 698; 2 Bl. Com. 443; 2 Inst. 513; Stouffer v. Coleman, 1 Yeates 393; Jackson v. Myers, 3 Johns. 388; Jackson v. Clark, Id. 424; 2 Bl. Com. 317 ; Co. Litt. 9, 172; Morgan v. Bissell, 3 Taunt. 71; Campbell v. Sproat, cited by the counsel in Stauffer v. Coleman, 1 Yeates 394, 395, 397 ; Neave v. Jenkins, 2 Id. 108 ; Sherman v. Dill, 4 Id. 298 ; Williams v. Bentley, 3 Casev 294; Maus v. Montgomery, 11 S. & R. 329 ; Dawson v. McGill, 4 Whart. 230 ; Stokely v. Trout, 3 Watts 164; Bear v. Whisler, 7 Ibid. 150.</p> <p>7. If it ever had any validity it was barred by the Act of Limitations of the 22d April 1856, § 6, Purd. 654, pi. 13, Pamph. L. 533: Price on Limitations 156 ; Peebles v. Reading, 8 S. & R. 493; Price on Liens 156-7; Halsey v. Tate, 2 P. F. Smith 314; Randall v. Van Vechton, 19 Johns. 64; Weyinan v. Hallowell, 14 Mass. 58 ; Salem Bank v. Gloucester Bank, 17 Id. 29 ; Cooper v. Lampeter, 8 Watts 128.</p> <p>— The argument and authorities for the plaintiff in error would be pertinent if this were an action of covenant founded upon this agreement as Irwin’s deed. It may not be his deed, but it is not for that reason void at law. The reason why counsel deem it “ void at law” seems to be that the evidence of ratification is insufficient, an argument which impliedly admits that it is at most but voidable, and not void: Bellas v. Hays, 5 S. & R. 438. If mutuality of remedy had been essential, the precedent authority given by Irwin to McHugh to procure leases, and his subsequent acceptance and adoption of them as “ signed for him,” would enable Garner to maintain covenant against Irwin: Garnet v. Gonter, 6 Wright 143; McFarson’s Appeal, 1 Jones 503 ; Maulé v. Weaver, 7 Barr 330 ; Dubbs v. Finley, 2 Id. 397; Corson v. Mulvany, 13 Wright 98 ; School Directors v. McBride, 10 Harris 215 ; Poor Directors v. McFadden, 1 Grant 230; Pratt v. Harding, 6 Casey 525.</p> <p>2. The deed was a valid grant by Garner, sufficient to take it out of the Statute of Frauds: Lowry v. Mehaffy, 10 Watts 387. It is sufficient if signed by the party to be charged: Wilson v. Clarke, 1 W. & S. 557; Simpson v. Breckenridge, 8 Casey 287 ; 2 Greenl. on Ev. § 6Í-66; 1 Grant’s Cases 58; Hawkins v. Holmes, 1 P. Wms. 770.</p> <p>3 and 4. If the grant by Garner was a valid one, and he had a remedy against Irwin, how can the equity powers of the court be invoked in this case by either party ? The plaintiff sues, and the defendant defends, upon his legal title: Johnstown Iron Company v. Cambria Iron Company, 8 Casey 241. The distinction between the effect of the payment of the consideration of the deed at the time, and the agreement to pay by the ton when the coal, ore, &c., shall be taken, is well settled. But when the nominal consideration of $1 is introduced, although actually paid, it is so strong an index of the intent of the parties, that it is submitted the payment of that sum by Grove places his rights in no stronger light than those of the defendant, who has actually paid a much larger present consideration to the vendee of Irwin’s rights : Funk v. Haldeman, 3 P. F. Smith 229; Chetham v. Williamson, 4 East 469; Grubb v. Bayard, 2 Wall. Jr. 91; Grubb v. Gilford, 4 Watts 224.</p> <p>5. There was no misrepresentation of fact: Caldwell v. Fulton, 7 Casey 482; Stine v. Sherk, 1 W. & S. 195.</p> <p>The deposition of McHugh itself showed the authority under which McHugh acted in taking the lease. He was competent to prove it, and the authority proved was sufficient to bind Irwin in assumpsit: Miles v. Cook, 1 Grant 58; McDowell v. Simpson, 3 Watts 129 ; 2 Greenl. Ev. § 61.</p>