Volume 57 — Pennsylvania State Reports

Tbe questions in tbis case arose on tbe distribution of tbe proceeds of sale, by tbe sheriff, of tbe personal property of William S. Snyder and S. L. Bergstresser. On tbe 2d day of October 1863, Joseph W. Cake conveyed to Snyder and Bergstresser, as joint tenants, three lots of ground in Sunbury for $700, the consideration having been paid by partnership funds, there being no notice that tbe land was partnership property.

4, to October Term 1866. In the court below, William Longenberger and James Macallamy, executors, &c., of George Longenberger, deceased, and S. P. Wolverton, brought an action of ejectment against Hugh W. McReynolds, Michael C. Kreitzer and Mary A. his wife, John W. Phleger and Rebecca his wife, Luther K. Stine and Matilda his wife, Cyrus J. Bower, Franklin C. Bower, Henry Bower, Gibson Bower, Emily Bower, Addison Bower, Mary Bower, and William Bower, for a tract of 364…

<p>Error to the Court of Common Pleas of Northumberland county: No. 13, to October Term 1867.</p> <p>This was an action of debt, at the suit of the Commonwealth of Pennsylvania, at the suggestion of Thomas Gr. Hood and others, trading as Hood & Co., as plaintiffs, against James Yandyke, sheriff of Northumberland county, and others, his sureties, on his official bond. The writ was issued to November Term, 1860.</p> <p>Hood & Co. on the 5th of August 1859 recovered two judgments against Zimmerman & Pursel, one for $436.39, and the other for $437.07; on these judgments executions were issued No. 2 and 3 to August Term 1860; they were received by the sheriff April 3d 1860; he returned to both, “ NuM bona as to Zimmerman & Pursel, and I have been requested by the plaintiffs’ attorney in this case to levy upon and sell certain personal property in possession of Jeremiah H. Zimmerman, who says that he is agent for Stroh & Elliott, and that the property belongs to them; and the said Stroh & Elliott, by their attorney J. B. Packer, Esq., had notified me in writing that they claimed and owned said property, and have forbidden me to levy upon the same, which I have refused to do for want of sufficient indemnification from the plaintiffs, which has been repeatedly asked from their attorney, John Porter, Esq., and refused, although he has given me a bond of indemnity executed by citizens of Philadelphia, endorsed by himself, which I considered insufficient, and of which I gave him notice, in the presence of Bartrim Galbraith, on or about the 1st day of June last, and no further or better bail has since been given.”</p> <p>The declaration in the case was not given in the paper-books, but the breach assigned appeared to be not levying on and selling as the property of the defendants, the goods mentioned in the return.</p> <p>After having given in evidence the above judgments, executions and returns, the plaintiffs gave evidence by the testimony of J. Porter, Esq., his attorney, that shortly after the executions were placed in the sheriff’s hands, he, Mr. Porter, gave him a list of the property to be levied on, which included a coal lease from one Dewart to Zimmerman & Pursel; that the sheriff having refused to proceed unless he was indemnified, a bond of indemnity in $7000, executed by Hood and others, residents of Philadelphia, was given to him; that about ten days afterwards, the sheriff not having proceeded on the writs, the sheriff gave to Porter as the reason for the delay, that the obligors in the bond all lived out of the county, but added, that if Porter would endorse the bond he would proceed to seü; and that the bond was endorsed as requested.</p> <p>There was undisputed evidence that the obligors in the bond were worth $250,000. There was evidence on both sides as to the ability of Mr. Porter. The property mentioned in the list was sufficient to satisfy the executions.</p> <p>The plaintiffs having rested, the defendants offered in evidence a number of executions to January Term 1859, issued by Gray, Stroh & Elliott, E. Y. Bright and others, against Zimmerman & Pursel. The evidence was to show that the property spoken of by Mr. Porter had been previously sold under these executions, and that it all belonged to Stroh & Elliott. The court admitted the evidence against the objection of the plaintiffs, and sealed a bill of exceptions.</p> <p>The property was bought at the sheriff’s sale by Stroh & Elliott and Bright. The coal lease was for ten years, but had not been levied on by the sheriff under the prior executions; but it was sold by the sheriff to Bright, and there was evidence that it had been surrendered to Dewart, the lessor. The allegation of the plaintiffs in this case was, that the purchase of the property at the first sheriff’s sale had been under a prior arrangement between the execution-creditors and the defendants for the benefit of the latter, and that it was fraudulent. Much evidence was given on this point on both sides.</p> <p>The plaintiffs’ points, and the answers of the court, were as follows:—</p> <p>1. If the jury believe that the property of Zimmerman & Pursel was bid off at the sheriff’s sale in 1859, by E. Y. Bright, and Stroll & Elliott, or either of them, under an arrangement between them and Zimmerman & Pursel, that bidders should be discouraged from bidding at the sales, and that the property should be bid off by Bright and Stroh. & Elliott, at as low prices as the same could be obtained, and the property so bought to be held by these purchasers until their debts against Zimmerman & Pursel should be paid and their liabilities for them satisfied: such an arrangement was fraudulent, and any judgment-creditor of Zimmerman & Pursel, who did not participate in the fraud, had a right to issue execution and levy upon the property bought at said sale, under the arrangement aforesaid.</p> <p>Answer: “ Upon the facts as stated in this point,' the law would be as stated. But if the facts are that Stroh & Elliott and Bright, who purchased the property at sheriff’s sale, on the 25th of January 1859, purchased for themselves, and paid for it, and took possession of it, with an arrangement or understanding, that if Pursel & Zimmerman afterwards paid the amount of their indebtedness to Stroh & Elliott and Bright, and the amount for which they were bail for them, such purchase would not be fraudulent. To avoid the title of a purchaser at sheriff’s sale, it is necessary to show he was guilty of some deception.. When one is buying for himself, but falsely declares that his purchase shall enure to the benefit of the debtor, or his family, and this is done as a mere trick to prevent competition, and thus get the property at an under-price, he acquires no title. But to say that he intends to give it to the debtor, or let him redeem it, when such is really his intention, is no fraud.”</p> <p>2. It was not necessary that the bail in the indemnity bond to sheriff Vandyke should reside in the county of Northumberland. If the obligors were men of property and of sufficient ability, the bond is good, and the sheriff was bound so to consider it, though they resided in the city of Philadelphia.</p> <p>Answer: “ The court do not assent to this proposition. We think the sheriff should not be compelled to go to a remote part of the state, to pursue the individuals in a bond of indemnity, but had a right to require that the bail should reside in the county. Bail was given in the county. Mr. Porter guarantied the bond, with which at the time the sheriff appeared to be satisfied,, and agreed to accept. Was Mr. Porter sufficient? If he was, the sheriff should have proceeded, and if he did not, he will be liable, if the property belonged to Zimmerman & Pursel at the time he received the Hood executions, or to the amount or value of any property not levied on^and sold in January 1859.”</p> <p>■ 3. It was the duty of James Vandyke, the sheriff, when indemnified by plaintiffs, to levy and sell on plaintiffs’ executions, the goods in possession of Jeremiah Zimmerman and John P. Pursel, or either of them, when requested, though they may have been claimed by others, or to apply for the Interpleader Act of the 10th of April 1848, and having refused so to do, rendered him and his bail liable on the official bond.</p> <p>Answer: “ It was the duty of sheriff Vandyke, when properly indemnified by the plaintiffs in the executions that were put into his hands, to levy on the personal property of Zimmerman & Pufisel, or either of them, when requested, though the property was claimed by others, and on refusal to do so, he and his bail would be liable; but the court do not think he was obliged to apply under the Interpleader Act.”</p> <p>4. It is not for the sheriff to set himself up as judge, as to who is the owner of the property, when ordered to proceed to levy and sell, and furnished with sufficient indemnity. But it is his duty to proceed and sell under the executions in his hands when so indemnified.</p> <p>Answer: “Affirmed.”</p> <p>5. There is no evidence that the term under the lease from William L. Dewart, or under that from the borough of Sunbury, was sold by or from Zimmerman & Pursel, but the same remained their property when levied upon in 1860, under the plaintiffs’ executions.</p> <p>Answer: “ There is no evidence that the term under the lease from William L. Dewart to Zimmerman & Pursel was levied upon by the sheriff; but there is evidence that it was sold — but such sale would be void for want of a levy. The wharf at river bank was levied on and sold in 1859. The coal lease remained their property, unless it was given up by Pursel & Zimmerman.”</p> <p>6. Under the evidence in this cause the plaintiffs are entitled to recover.</p> <p>Answer: “Refused.”</p> <p>The verdict was for the defendants. — The plaintiffs took a writ of error. The specifications of error were the admission of the evidence contained in the bill of exceptions and the answers of the court to their points.</p>

This was an action of ejectment by Aaron J. Dietrich and James Wilson, against John Gr. Mason, brought to September Term 1864, in which there was a ease stated in the nature of a special verdict. The tract contained 307 acres, and was warranted in the name of William ICinley. Prior to the assessment of the taxes on it for 1852 and 1853, it had been divided into two tracts of 107 acres and 200 acres respectively. The 107 acres were seated, the 200 acres were unseated.

Letters testamentary were granted on the estate of Henry Masser, deceased, on the 25th day of July 1853, to Peter B. Masser and others, the executors named in the will. Peter B. Masser filed a partial account, November 29th 1856, which-was confirmed absolutely, April 8th 1857, showing, a balance of |1923.96 due the estate.

<p>Appeals from tie decree of tie Orphans’ Court of Northumberland county: in the estate of William H. Gray, deceased. To October Term, 1867.</p> <p>These appeals were taken from the decree of the court on the account of Peter W. Gray, executor, &c., of the decedent.</p> <p>From the report of the auditor, William M. Róckafeller, Esq., the following facts appeared.</p> <p>William Gray, the father of the decedent, and Francis Johnson, were the owners of a tract of land in Northumberland county; the tract was sold for taxes to Joseph Wallace, and the time for redemption had passed. After the death of William Gray, Samuel T. Packer, Esq., then a practising lawyer, advised the decedent that the land could be recovered from Wallace. The decedent at first determined to commence suit for its recovery, but afterwards, upon consultation with others, fearing that he might be unsuccessful, and be involved in a large amount of costs, he declined proceeding in the suit.</p> <p>He subsequently, however, entered into an agreement with Mr. Packer, by which he (Packer) was to conduct the suit on his own responsibility, bear all the expenses, and, if successful, receive as compensation one-sixth of the land.</p> <p>An ejectment for the land was accordingly commenced to January Term 1832, by Johnson’s representatives and the three children of Gray, the decedent being one.</p> <p>Whilst the suit was pending, the decedent executed and delivered the following paper.</p> <p>“Johnson. & Gray’s heirs ] Ejectment in the Common Pleas of v. V Northumberland county for 440 acres</p> <p>Joseph Wallis. j of land in Shamokin.</p> <p>“In consideration of the professional services of Samuel J. Packer, I hereby grant, bargain and sell unto the said Packer, one-sixth part of the said tract, or so much thereof as may be recovered in this suit. It is understood, that if nothing be recovered, then Packer is to charge nothing for his services.</p> <p>“ Witness my hand and seal, August 11th 1834.</p> <p>“William M. Gray. [Seal.]”</p> <p>Mr. Packer spent much time and labor in preparing and conducting the suit, which was one requiring great professional skill and investigation. A verdict was rendered for the plaintiffs August 12th 1834. Mr. Packer died in the same year, The case was taken to the Supreme Court, and the judgment of the court below affirmed. Possession was delivered to William M. Gray under an habere facias. The agreement between Mr. Packer and Gray was duly proved April 1st 1835, and recorded the next day. After the death of Mr. Packer, in 1841, his heirs brought an ejectment to recover the one-sixth of the tract. They succeeded in the court below on the ground that the paper was an executory agreement to convey the land. The Supreme Court (Gray v. Packer, 4 W. & S. 17) decided that it was an executed conveyance and passed a life estate only to Mr. Packer, and reversed the judgment below.</p> <p>William M. Gray in his lifetime conveyed his interest in the tract to Thomas Baumgardner and others, and took from them a mortgage for part of the purchase-money and afterwards died, having by his will, dated June 15th 1854, given one-half his estate to his son, Peter W. Gray, whom he appointed executor, and the other half to the children of his sister, Mary Bruner. After the death of S. J. Packer, his son, John B. Packer, continued to assert the claim of his father under the agreement, both to William M. Gray, and, after his death, to the accountant. He also redeemed the one-sixth of the land from sale for taxes. On the 23d of July 1860, Peter W. Gray agreed to compromise the one-half of the Packer claim for $1000, which he then paid, and took a deed from the Packer heirs to himself for the one undivided half of the one undivided sixth of the land.</p> <p>On the 4th of March 1861, Peter W. Gray filed a partial account of his administration, charging himself with $1987.14, the amount of the inventory, and also other moneys received, amounting in the whole to $17,567.39; he claimed credits which made the balance against him $6754.23. The payment of $1000 to the Packer heirs was not amongst the credits; his account did not show the dates at which he received the moneys. Exceptions were filed to this account April 2d 1861, and the matter was referred to J. K. Clement, Esq., as auditor, and no further proceedings were had in it for some time.</p> <p>■ On the 28th of July 1860, the Packer heirs brought an action of ejectment against Baumgardner and others, owners of the Gray tract, to recover the balance of their father’s claim. To August Term 1860 the accountant had issued a scire facias against Baumgardner and others on the mortgage given to the decedent for the purchase-money of the land. On the 22d of August 1860, the defendants in the scire facias filed the following affidavit of defence: “That'in the deed of the plaintiff’s testator, for the land for which the above mortgage was given, there was a covenant of warranty of the title therefor; that he has paid large sums of money upon the said mortgage, for which he holds the receipt of the plaintiff; that an action of ejectment has been brought in the Court of Common Pleas of Northumberland county by John B. Packer, &c., for the recovery of the possession of an undivided twelfth part of the land described in the mortgage given by the defendants above named, which suit is still pending, and if a recovery should be had of the land claimed in said ejectment, the said plaintiff will not be entitled to claim a further payment upon the above-stated mortgage.”</p> <p>On the 20th of November 1863, Baumgardner tendered to the accountant $4510.33 in payment of the balance due on the mortgage, “ and demanded the title to said mortgaged land to be perfected by removing the action of ejectment in the Common Pleas of Northumberland county, instituted by the heirs of Samuel J. Packer, deceased, against Thomas Baumgardner and others, for the recovery of a portion of said lands bound by said mortgage.”</p> <p>On the same day, the ejectment of the Packer heirs was compromised by the payment of $1000 by Peter W. Gray as executor, &c., of W. M. Gray, deceased, to John B. Packer as attorney for the plaintiffs in the ejectment.</p> <p>On the 12th of August 1864, the accountant was cited to settle an account. To this he answered, setting forth that the exceptions to his account of 1861 were still pending before the auditor. On the 15th of November 1864, the account and exceptions were referred to another auditor, who made report which was confirmed absolutely June 6th 1865.</p> <p>The executor filed a Second account October 7th 1865, in which he charged himself with the balance on his former account, with the balance due on Baumgardner’s bond, $6972.74, but charging himself with no interest, and giving no dates of the receipts. Exceptions were filed November 13th 1866, and with the account were referred to Mr. Rockafeller, as auditor. The 1st exception appears to have been that the accountant had not charged himself with interest on the balance of his first account and on the sum of $6942.76 which he had received from Baumgardner. In relation to this exception the auditor reported:—</p> <p>“ The dates when the accountant received the money, and the times of the several payments of part of the legacies to the legatees, were not furnished to your auditor, and the fact that his account was pending before an auditor on exceptions filed from April 2d 1861 to January 6th 1866, renders it impossible for your auditor to decide that the accountant should pay any interest. He therefore decides that the 1st exception is not sustained.”</p> <p>The 3d exception was to the two payments of $1000 each made to John B. Packer, Esq. This exception the auditor overruled, and allowed the account credit for both sums.</p> <p>The other legatees excepted to the report, — that the auditor had not charged the accountant with interest on the balance of his first account, and on the payments made by Baumgardner in discharge of his mortgage; and that he had allowed credit for the two payments of $1000 each to J. B. Packer.</p> <p>The Orphans’ Court disallowed credit for the payment made to Mr. Packer July 23d 1860, and after deducting $1000, the amount of that payment, dismissed the other exceptions and confirmed the report. ,</p> <p>Judge Jordan, in delivering the opinion of the court, said:—</p> <p>* * * “ That there are cases in which an executor or administrator may compromise a dispute has already been shown, especially when the compromise does not affect creditors, but legatees. Was this such a case? There are no creditors to be affected. The devisees of William M. Gray make the objection to the credits of $1000 each, paid John B. Packer, Esq. The tract of land, at the time it was sold to Longnecker, Baumgardner and Helfenstein, was a valuable one, and although the heirs of Samuel J. Packer were unsuccéssful in the first ejectment brought by them, the ruling of the Supreme Court, it was supposed, was shaken in the opinions given in the following cases: Kenrick v. Smick, 7 W. & S. 41; Defraunce v. Brooks, 8 Id. 67; McFarson’s Appeal, 1 Jones 503-511; Williams v. Bentley, 3 Casey 294; Ogden v. Brown, 9 Id. 247; Stewart’s Administrator v. Lang et al., 1 Wright 201. The principles established in these cases furnished at least a reasonable ground for supposing that on a second trial the result might be different, taking into consideration the instrument itself — the intention of the parties at the time, gathered from the object for which it was given and received, the services performed and to be performed, the character and value of the land at that time, unseated and unproductive but by the expenditure of large sums of money. The life estate in one-sixth was of little value, and it can hardly be supposed that Mr. Packer would give his professional services, expend Ms time and money in preparing the cause for trial, for a compensation of such uncertain value as a life estate. But besides the opinions expressed in the cases referred to, the mortgagors, Baumgardner, Longnecker and Helfenstein, made defence to the payment of any more of the purchase-money until the ejectment brought by the heirs of Mr. Packer was settled so as to relieve them. That the defence set up by the mortgagors would have been successful until a favorable termination of the ejectment in favor of Gray’s heirs can hardly be questioned; and if the heirs of Gray had been defeated, this would, in all probability, have formed a complete legal ground for refusing payment of the mortgage-money claimed.</p> <p>“What the'decision of the Supreme Court would have been had the question again been presented to them, what interest had Samuel J. Packer in the one-sixth of the tract granted and sold to him by William M. Gray, we do not know, and it is not necessary this court should express an opinion. What would a prudent man do under all the circumstances ? It seems to this court that the compromise was one which it was proper to make. The deed from the heirs of Samuel J. Packer to Peter W. Gray for the half of the undivided one-sixth of the Robert Gray tract was made in July 1860, to him absolutely and not to himself for his interest and in trust for the other devisees, and the $1000 paid by him when this arrangement was effected, was not claimed as a credit in his account filed on the 4th of March 1861. That account was confirmed absolutely.</p> <p>“In the 2d account filed on the 7th of October 1865, to which exceptions have been filed, he claims credit for the $2000 paid to Mr. Packer; $1000 on the 28th of July 1860, the other, November 1863, and charges himself with the balance remaining in his hands on the 1st account, $6759.73, and also with the balance collected from Thomas Baumgardner since that account was filed, $6972.79. There is nothing in the evidence reported by the auditor to show that, when in July 1860, Peter W. Gray agreed to pay the heirs of Mr. Packer $1000 on receiving a deed to himself for the one-half of the tract, he was acting as executor, and for the benefit of the devisees generally. The arrangement appears to have been made for himself, and this court think that for the $1000 then paid he is not entitled to a credit, even if the fact of not including it in his 1st account, which was confirmed absolutely, would not -bar him. It is clear, if the credit had been claimed and the account suffered to be confirmed absolutely, it could not have been opened.</p> <p>“As to the payment of $1000 on the 20th of November 1863, that appears to have been made as executor, and for the benefit of those entitled to the balance in his hands, and the balance of unpaid purchase-money in the hands of the mortgagors. For this sum we think the executor is entitled to a credit.”</p> <p>Both parties appealed.</p> <p>The legatees, Charles J. Bruner and Harriet S. Totten, assigned for error that the court did not charge the accountant with interest as claimed in their exceptions to the auditor’s report, and allowed the accountant credit for the sum of $1000, paid Mr. Packer November 20th 1863.</p> <p>The accountant assigned for error that the court did not allow him credit for the sum of $1000 paid Mr. Packer July 23d 1860.</p>

This action was brought in the Supreme Court, No. 190, to January Term 1866, by Charles W. Borbidge against Philip Herst, for slander, and was tried before Strong, J., at Nisi Prius. The declaration contained four counts.

In Equity. This was a proceeding in equity, commenced in the Supreme Court, Eastern District, No. 41, to January Term 1865, by the Oil Creek Railroad Company against The Atlantic and Great Western Railroad Company of Pennsylvania.

This was an action of covenant on two policies of insurance, brought to July Term 1866, No. 22, by the executors, &c., of John Brock, deceased, to the use of John Welsh, against The Eranklin Eire Insurance Company of Philadelphia. On the 3d of December 1857 John Brock was the owner of two five-storied brick storehouses, now numbered 242 and 244, on the west side of North Delaware AvenueJ Philadelphia.

<p>1. An agreement to lease land for a term of years, with the exclusive right to bore for and collect oil, giving one-fourth to the lessor: Held, to pass a corporeal interest. ,</p> <p>2. The taking by the lessee of his share of the oil found is not waste, hut a rightful act, unless the lease be forfeited by its own terms.</p> <p>3. The appointment of a receiver is the exercise of a power in aid of a proceeding in equity, and is the subject of sound discretion. The court must be convinced that it is needful and is the appropriate means to a proper end. It is a strong measure and cannot be exercised doubtingly.</p> <p>4. Where a party has title and possession under a lease in writing, enjoying rights apparently legal, a receiver will not be appointed unless under urgent and peculiar circumstances. The plaintiff must show a clear right or a primft facie right, with such circumstances of danger or probable loss as will move the conscience of a chancellor to interfere.</p>

Neff (deceased), executor, &e., of Charles Bird, deceased, with $1935.05, a balance due from Edwin M. Sellers to Charles Bird, which had not been collected by Mr. Neff, the executor. Mr. Neff died in 1868, and his fifth account as executor of Mr. Bird, was filed by his executors. The facts in the case are taken from the findings of William L. Dennis, Esq., the auditor, which were approved by the Supreme Court as being sustained by the testimony in the case.

301, to January Term 1867. This was an action of assumpsit, brought May 5th 1866, by Thomas Gr. Hood and others, trading as Hood, Bonbright & Co., against William J. Boyd and others, trading as Boyd & Hough. The plaintiffs declared for money had and received by the defendants for their use. On the trial below the plaintiffs gave evidence that John Wright & Co., in the month of December 1865, owed them about $800.

342, 343 and 344, to January Term 1867. On the 31st of October 1864, Franklin E. Felton filed with the auditor-general of Pennsylvania an information that Colburn Barrell and Henry Cervanti, composing the firm of Barrell & Cervanti, had died intestate, without any heirs or known kindred, and that their estates are subject to escheat to the Commonwealth, &c.'.

In Equity: No. 22, to January Term. 1867. The bill in this case was filed September 8th 1864, by L. Harry Richards against the Phoenix Iron Company.

On the 31st of October 1865, Isaac B. Worth and Thomas G. Pennypacker presented their petition to the Court of Common Pleas of Chester county, setting forth that Isaac B. Worth, on the 26th of March 1861, borrowed $2000 from Jonathan Gause, for which a bond was given, and judgment was entered on it on the same day: That on the 1st of April 1864, Thomas G. Pennypacker borrowed $2000 from Gause, on which judgment was entered on the 29th of the same month.

Tbis was an issue between Samuel Kline and Dillman Bean, plaintiffs, and Ann Kline, defendant, directed -by the Orphans’ Court to try the validity of a marriage contract between the defendant and Gabriel Kline, now deceased. After Kline’s death in 1867, his-heirs interposed the contract as a bar to Mrs. Kline’s claim for a share of his estate as widow.

231, to January Term 1868. This was an action of covenant brought to November Term 1867 by Henry Kolb and Elizabeth his wife in her right, against George W. Steiner.

<p>Error to the Court of Common Pleas of Montgomery county: No. 211 to January Term 1868.</p> <p>This was an amicable action of covenant in which Matthias Custer was plaintiff and Philip Quillman was defendant, and in which there was a case stated for the opinion of the court. By the case it appeared that Cornelius Custer, by his will, devised as follows, viz.:—</p> <p>“ I give and bequeath to my son Matthias the messuage and 80 acres of land, the use and occupation thereof, during his natural life, where he now occupies, situate in Worcester township. My will is that there shall be no more wood taken off the premises than is required for the necessary use of the farm. At the decease of my son Matthias the property to descend to his heirs at law. My said son' Matthias paying out of the aforesaid messuage and tract of land unto my said wife the sum of $40, which sum I hereby bequeath to her yearly and every year during her natural life, for her maintenance and support, all of which legacies to my said wife I do hereby declare to be in lieu and stead of her dower at common law.”</p> <p>On the 1st of November 1867, Matthias Custer, the plaintiff, covenanted to convey the property above devised to Philip Quill-man, the defendant, on the 11th of the same month. On that day the plaintiff executed and offered to deliver to the defendant a deed in fee for the premises upon payment of the purchase-money. The defendant declined to accept the deed and pay the purchase-money, on the ground that the plaintiff had but a life estate in the devise.</p> <p>It was agreed that if the court should be of opinion that the plaintiff had a fee, judgment should be entered for him for $100 ; if otherwise, judgment should be entered for the defendant.</p> <p>Chapman, P. J., entered judgment for the plaintiff for $100. The defendant took a writ of error, and assigned. the entering of judgment for error.</p>

112. This was an action of assumpsit, commenced September 25th 1865, by Benjamin Bartholomew, administrator d. b. n., &c. of Keziah Henderson, deceased, against Hugh De Haven and Mary J. De Haven his wife. The pleas were non assumpsit and non assumpsit infra sex annos. Jonathan Cleaver died intestate in 1833,- leaving a widow, Rebecca, and six children, and the descendants of two deceased daughters.

12. The Erie City Bank, in a suit brought to December Term 1855 against John Carter and Richard Carter, trading as J. & R. Carter, — on the 15th of March 1858, and after the death of Richard Carter, which was duly suggested, recovered a judgment for $4758.30 against John Carter, the surviving partner. On the same day, an attachment-execution was issued on the judgment with notice to John Carter and Lucien II.

60, to January Term 1868. This was an action on the case to March Term 1858, brought by Matthias S. Richards against the Little Schuylkill Navigation, Railroad and Coal Company. The declaration contained two counts.

<p>Error to the Court of Common Pleas of Montgomery county: No. 285, to January Term 1868.</p> <p>This was an amicable action and case stated, entered January 2d 1868, between Emma P. Rambo, plaintiff, and Samuel Shutt, defendant. The case contained the following facts:—</p> <p>The plaintiff is a daughter of Nathan Rambo, who died in 1858, leaving a will dated the 16th day of May 1857, and proved March 11th 1858. The said testator also left surviving him a widow named Ann Rambo and seven children, of whom Emma P. Rambo the plaintiff, who never was married, is one. The testator left also a very large estate, consisting principally of'real estate, which he devised to his wife and children, and inter alia as follows:—</p> <p>“Item 7. I give, devise and bequeath unto my daughter Emma Rambo, the farm, hereditaments and premises known as the Shainline farm, containing about 110 acres of land, in fee, charged and chargeable nevertheless with the annuity or yearly sum of $150, to be issuing and payable out of the said farm, hereditaments and premises, to my wife Ann Rambo, during her life, by two even and equal half-yearly payments in every year; the first of the said half-yearly payments to be made at the end of six calendar months next after my decease.”</p> <p>The whole of the said last will and testament is made part of this case.</p> <p>On the 6th of October last past, the plaintiff sold to defendant the farm in the 7th item mentioned, under the following articles of agreement: “ This agreement made the 6th day of October, A. d. 1867, between Emma P. Rambo, &c., and Samuel W. Shutt, &c., witnesseth, that said Emma P. Rambo, for the consideration hereinafter mentioned, has this day sold to said Shutt, all that certain farm of about 110 acres of land, known as the Shainline farm, in Upper Merion township, be the same more or less, and the said Emma hereby agrees to make and deliver to said Shutt a good and sufficient deed in law, and full possession of said farm and buildings thereon, on the 1st day of December, A. D. 1867, free and clear of all encumbrances, except as hereinafter excepted, and in consideration of the premises said Shutt agrees to pay to said Emma P. Rambo the sum of $12,000, as follows&c.</p> <p>On the 1st day of December, 1867, the plaintiff tendered defendant a deed for the above-described premises, which it is admitted was in all respects legal and valid, except that the defendant is advised and believes that under the said will of Nathan Rambo, the plaintiff does not hold a fee-simple title to said farm, whereupon he refused to accept the same. (See 24th item of said will.)</p> <p>Should the .court be of opinion that the plaintiff holds a fee-simple title thereto, then judgment to be entered for plaintiff, and specific performance of said agreement be decreed; should the Court be of opinion that the said plaintiff has not a fee simple in said farm, then judgment to be entered for the defendant.</p> <p>The 24th and 25th clauses of the will are as follows:—</p> <p>“ Item 24th. It is my will that should any of my children die without heirs, then the property hereby bequeathed to them shall revert to my estate.”</p> <p>“ Item 25th. It is my will that all my other property, personal, real or mixed, and wheresoever situated, not herein particularly mentioned and referred to, shall be sold by my executors, the proceeds divided equally among my children.”</p> <p>The court (Chapman, P. J.) entered judgment for the plaintiff, which the defendant, on a writ of error taken by him, assigned for error.</p>

486, to January Term 1867. This was an action of assumpsit by John II. Gould against David B. Taylor and others, trading as D. B. Taylor & Co. The writ issued September 27th 1865. The declaration contained three counts. 1.

In Equity: No. 461 to January Term 1867. This was a bill by George Cadwalader against Mary App and Samuel App, executors, &c., of George App, deceased, and Samuel App, George App, Henry Fries and Mary Ann, his wife and' George Ristine, filed November 10th 1864.

<p>Error to the District Court of Philadelphia: No. 90, to July Term 1867.</p> <p>This was an action on the case by Mark Watson against Charles H. Muirhead, commenced November 30th 1865.</p> <p>The declaration contained four counts, laying substantially the same cause of action, to wit, that the plaintiff having agreed to buy a ground-rent in Philadelphia, retained and employed the defendant as a conveyancer to ascertain the title of the vendor and whether it was free from encumbrances; that it became the duty of the defendant, by reason of such employment, to ascertain whether the ground-rent was clear of encumbrances, and to have it conveyed to the plaintiff clear of all encumbrances, yet the defendant procured the plaintiff to pay to the vendor of the ground-rent $1400, the purchase-money thereof; that there was at the time a lien upon it, under which it was sold by the sheriff, and the plaintiff lost the whole ground-rent.</p> <p>The evidence was, .that about the middle of 1859, the defendant informed Mr. Cavender, the agent of the plaintiff, that Mr. Macalaster would soon have some ground-rents for sale, and said to Mr. Cavender that if “ his country customers wanted any they could have an opportunity.”</p> <p>On the 27th of January 1860, the defendant told Mr. Cavender that the. ground-rents were then ready for sale, and that the money would be wanted on the 2d of February. Cavender, who was a witness for the plaintiff, testified that he said to the defendant “the time was too short. He said if I would trust him to do the conveyancing, he would have all the papers prepared in time. I told him it was not sufficient time to make an examination of the title and get out searches — only three working days. I told him so. He said, ‘You know Charles Henry Fisher’s. title; you have examined that. There are but three links: the deed of Charles Henry Eisher to the Merchants’ Insurance Company ; from the Merchants’ Insurance Company to the Exchange Insurance Company, and from the Exchange Insurance Company to Charles Macalester. I have continued the brief to include these three links. Here it is, with Harry Wharton’s opinion on it.’ He said: ‘I had made the searches, procured certificates to show the title .clear of encumbrance, but I have loaned them to Mr. Livensetter, who is drawing other deeds. As soon as he is through examining them, I will hand them over to you, with the old title-papers.’ I consented. I called on the morning of the 2d * * the deeds were not prepared for execution. * * He said if I would give him a check ‘ I can settle all your business satisfactorily.’ ” Cavender accordingly gave defendant a check for $6231, the purchase-money of five ground-rents, including that in question. He afterwards received the deed to the plaintiff for the ground-rent and the searches, which he did not then examine. Some time afterwards, the defendant sent his clerk to inform Cavender that the ground-rent was advertised for sale by the sheriff, and he informed Cavender that there was an interlocutory judgment which Mr. Wharton said did not bind the ground-rent. Cavender then examined the searches which he had not seen before, and found a judgment certified. Cavender informed the defendant of this; he replied that Mr. Wharton said it amounted to nothing, it was not an encumbrance. Cavender replied that Mr. Wharton did not say. so; he said there was no judgment.</p> <p>Plaintiff also gave evidence, by a number of conveyancers, that when conveyancers act both for buyer and seller it is their duty to the buyer to see that the title is clear of encumbrances.</p> <p>He also gave in evidence a written opinion of Henry Wharton, Esq., dated June 28th 1869, in which he says: “I have considered and examined the brief of title and the deeds and other documents produced relative to the title of Charles Macalester to seven yearly ground-rents, of $84 each, issuing out of as many lots of ground, &c., conveyed to him by the Exchange Insurance Company, by deed dated June 25th -1859, and I am of opinion that a good and sufficient title is thereby deduced to him in fee. * * *</p> <p>“ The certificates of search produced, as against the several holders of the rents since the conveyance by Mr. Charles Henry Eisher to the Merchants’ Insurance Company, show that the premises are clear of encumbrance, so far as the searches extend, except a judgment of J. S. De Wolf and others against Merchants’ Insurance Company, which is to be paid off and satisfied out of the proceeds of sale.”</p> <p>Also the certificate of liens in the District Court, referred to in the opinion, viz.: “ Charles Howland, J. 58,1498, March 30th 1858. John S. De Wolf, J. 58, 1682, December 16th 1858, $6511.01.”</p> <p>Also, the appearance-docket of that court, showing a judgment at the suit of Howland against the Merchants’ Insurance Company for want of a plea, which was opened and, December 10th 1860, judgment entered on a verdict. Also, record of sale of this ground-rent, November 11th 1861, under a venditioni on that judgment. •</p> <p>The plaintiff having closed, the defendant called Henry Wharton, who testified:—</p> <p>“ I had a judgment against the Merchants’ Insurance Company, which appears on these searches, for $6511 with interest, amounting to nearly $7000. I was about to levy on these ground-rents, when either some member of the company, or Mr. Muirhead on behalf of them, came to me and said that they were very desirous of preventing a sacrifice of these ground-rents, and therefore they would prefer to have them sold, and they would pay the amount of the judgments. I agreed to that. Some time subsequently, Mr. Muirhead stated he had procured a purchaser, but desired me to examine the title and to look at the searches, which I agreed to do. These searches were then produced to me — that was some time in April or May 1859 — showing two judgments; one judgment which I held myself, and another in favor of Charles W. Howland. On that appearing, I requested Mr. Muir-head to furnish me with copies of the docket-entries of that judgment, .and to make any further examination which might be necessary. He furnished me with the docket-entries of the judgment, and also the papers in the case. It appeared to be an action on a policy of insurance in which judgment was taken for want of a plea. That judgment was subsequently opened, the order being made on payment of costs. It also appeared that a writ of inquiry had been taken out. I directed Mr. Muirhead to examine the sheriff’s office and the prothonotary’s office, to discover whether it had ever been executed. He informed me that it had not been executed. I directed that the costs that appeared in the case, and on the payment of which the order to open the judgment was passed, should be paid. Under those circumstances I had no doubt that that judgment was not a lien. For that reason I gave my opinion, as it appears here, that the property was clear1 of encumbrances other than the judgment which I myself held. After that the matter was placed in Mr. Porter’s hands, as counsel for Mr. Maealester; and I had no further knowledge of the subject until very recently.”</p> <p>Also, William A. Porter, who testified: “ Mr. Maealester called upon me and said he was about to buy these ground-rents, and wished me to examine the title. I procured the brief either from him or from Mr. Muirhead, and examined it. I had also occasion to. examine some papers upon the record referred to in the brief, but I cannot tell what they were. I don’t remember now. I think I was four days employed in it. On the fourth or fifth day I told him he might safely buy these ground-rents, that the title was good. I have no recollection of seeing the searches; but upon inquiring upon that point, it was said that the searches had been submitted, I think it was to Mr. Wharton,' and then or about that time the fact was stated that there was a judgment on the searches, to which no amount had been fixed. And so I gave it as my opinion that that judgment need not stand in the way of the purchase. I cannot say that this was before the purchase was actually made. On learning that the searches had been submitted to Mr. Wharton, I felt no more concern or uneasiness about it; but I do remember that about that time this fact was called to my attention.”</p> <p>The plaintiff submitted these points:—</p> <p>1. If the jury believe from the evidence that the defendant as a conveyancer undertook to prepare the deed for the ground-rent to the plaintiff, and to ascertain if there were any encumbrances thereon, and that he received the money for said ground-rent, and neglected to apply it to the payment of the judgment under which the ground-rent was subsequently sold, he will be liable in this action for any damages sustained by reason of such neglect.</p> <p>2. If the jury believe from the evidence that the defendant ás a conveyancer undertook to have the papers prepared for the conveyance of the title to the ground-rent to the plaintiff, and that he received the purchase-money of said ground-rent from the plaintiff or his agent, that it then became his duty to see that the property was clear of encumbrances, and to appropriate so much of the money in his hands as was necessary in the discharge of such encumbrances, and that if he paid the money over to the vendor of said ground-rent without obtaining a discharge of the encumbrances thereon, and by reason thereof the plaintiff has sustained any damage, the defendant will be liable in this action for the damage which the plaintiff has sustained.</p> <p>3. If the defendant undertook as a conveyancer to prepare the deed for the conveyance of said ground-rent to the plaintiff, and received from the plaintiff or his agent the purchase-money of said ground-rent, and -at or immediately before the time of the receipt of the money knew of the existence of the judgment against the Merchants’ Insurance Company of Philadelphia, but notwithstanding asserted and induced the plaintiff or his agent to believe that there was no judgment against the property, he will be liable for- any damages which the plaintiff has sustained by reason of the existence of such judgment.</p> <p>4. That if the defendant knew of the existence of the judgment •against the Merchants’ Insurance Company of Philadelphia, he was bound to -inform the plaintiff or his .agent of the fact that there was such a judgment, although he may have believed that it was not a lien on the ground-rent, and if the jury find from the evidence that he neglected to give such notice, he will be liable for all the consequences of his neglect in that respect, and if, by reason of proceedings upon such judgment the plaintiff has been deprived of the ground-rent, he is entitled to recover the value thereof with interest thereon from the time he was deprived of it, from the plaintiff.</p> <p>The court (Hare, A. J.) charged:— * * “ If there was in this case any want of good faith on the part of the defendant, if he concealed or misrepresented any material fact, you will have no difficulty in finding a verdict for the whole amount for the plaintiff, because the position of the defendant was one emphatically requiring honesty and fair dealing. If, however, you are of opinion that there was no fraud or want of fairness on his part, the inquiry will then be, was he employed as a conveyancer by the plaintiff? Was he guilty of negligence in the course of that employment ?</p> <p>“ It cannot be said that there is no evidence from which the jury can find that the defendant was acting as the plaintiff’s agent. At the same time the evidence is equally if not more consistent with the idea that what passed between the defendant and Mr. Cavender was not an agreement to examine the title for the plaintiff, but an assurance that it did not need examination, that it had been already investigated, and that the plaintiff might safely rely on the result. If this be so, there is no responsibility on the part of the defendant, because a man who expresses an opinion as such is only responsible for expressing it fairly. He is not responsible for its absolute correctness. It is proper to add in this connection that, according to the testimony given by Mr. Cavender, the defendant did not take out, and was not paid for taking out searches against any one. That the only compensation he received was for drawing the deed, and that he was told that it was not necessary to have searches made against Mr. Macalester. These considerations will not exonerate the defendant if he was acting as agent for the plaintiff, but they may have a material bearing on the inquiry whether he was the plaintiff’s agent.</p> <p>“ If the jury find that the defendant was acting for the plaintiff, the remaining question will be whether he was guilty of negligence in the course of the agency. A conveyancer does not guaranty the titles which he passes — such a liability would not readily be assumed for such a reward as the evidence in this case shows is ordinarily paid to conveyancers for examining titles. What he does undertake is to use due care according to the light which he has, and to have such a reasonable amount of light as a man in his walk of life ought to bring to the discharge of his professional duties. If walking by that light and with a proper degree of care he makes a slip, it is not negligence. But if from want of proper knowledge, from a failure to use proper means, or from carelessness in applying those means to the matter in hand, loss results to his client, the fault is his, and he will be responsible.</p> <p>“In this case it is for the jury to say to which of these categories Mr. Muirhead’s conduct is to be referred. Did he fail to use the proper means? Did he neglect to apply them in the proper manner? Was he ignorant of what he ought to have known ? If these things, or any of them, are so, he is answerable if he was the plaintiff’s agent. If they are not so, he ought to be exonerated.</p> <p>“ The specific negligence charged in this instance is the failure to inform the plaintiff of the existence of the judgment under 'which the ground-rents were subsequently sold; and testimony has been adduced to show that whenever a judgment appears on the face of the searches, it is the duty of a conveyancer to disclose the existence of the judgment to his client, whether it is or is not, in his opinion, or according to the opinion of counsel, a lien. There is, however, no rule of law rendering such a disclosure imperative, and the question whether it should be made is one of facts and circumstances. When, for instance, the lien of a judgment expires by lapse of time, or when it is opened and a verdict rendered for the defendant which is confirmed by the court, the original judgment still remains on the judgment-index, and may be returned by the prothonotary if searches are ordered; and yet it cannot be said to be the duty of a lawyer to advert to the existence of such a judgment in giving an opinion upon the goodness of the title or advising a purchaser that it is safe to buy. The question whether the defendant is responsible for not disclosing this judgment is therefore an open question, which ought not to be decided adversely, unless the defendant was negligent. All that a professional man is bound to do in any case is to seek for information at the best sources, and apply that information honestly and fairly when obtained with proper care and diligence. His conduct is not necessarily to be judged by the result. It is rather to be tested by considering what was the best light to be had at the time, and whether the error, if he committed one, was the result of an excusable mistake or of negligence.</p> <p>“ In answering the points of the plaintiff, I say ‘ the 1st point proceeds upon the assumption that the check left by Mr. Cavender was money intrusted to the defendant to invest, and not money paid through the defendant to Mr. Macalester for the purchase of the ground-rent. Unless that assumption was correct the point is not applicable.’ All that I think is necessary to say is, that if the defendant was guilty of negligence under the instructions already given, in tbe examination of tbe title, he is responsible. I give the same answer to the 2d and 3d points, and decline to affirm the 4th point presented by the plaintiff.”</p> <p>The verdict was for the defendant.</p> <p>The plaintiff took a writ of error, and assigned for error the refusal of the court to affirm his points.</p>

<p>1. An appeal should not be dismissed because the recognisance is defective, until the appellant has been ruled to perfect it.</p> <p>2. It is not error to allow an appellant to file an amended recognisance.</p> <p>3. Where a landlord has ejected the tenant under a judgment of a justice and the case is tried on an appeal, the tenant can show his damage by the removal and the value of the place to him.</p> <p>4. The examination of witnesses in surrebuttal, is within the discretion of the judge trying the case.</p> <p>5. On- an appeal the jury are to decide the case precisely as if there had been no prior decision. A landlord who has taken possession under an alderman's habere, cannot suffer a nonsuit upon trial of the appeal.</p>

<p>Error to the District Court of Philadelphia: No. 438, to January Term 1867.</p> <p>This was an action on the case by William Grlassey against The Hestonville, Mantua and Fairmount Passenger Railway Company. The writ was issued November 28th 1866.</p> <p>The declaration charged that James C. Glassey, a son of William Glassey, the plaintiff, and a minor, while walking along Twenty-first street, in the city of Philadelphia, was knocked doVn by the car of the defendants and injured. That in consequence of this injury, “ the said James C. Glassey was unable to do or perform the necessary affairs and business of the plaintiff, he being his father, and that, therefore, the said plaintiff was deprived of the service of his said son,” &c.</p> <p>The evidence showed that the son of the plaintiff, a child of about four years of age,, had gone into the street from his father’s house alone, and in crossing the street had fallen on the track of a passenger railroad, and had been severely injured by the horses of a car of the defendants then passing..</p> <p>There was much evidence as to the manner and extent of the injury, and also as to the alleged negligence of the plaintiff in permitting the child to run in the street.</p> <p>The defendants submitted the following points:—</p> <p>1. Knowingly to allow a child of less than four years of age to go at large in the public street without a protector is such negligence in his parents or guardians as will prevent the parent from recovering in an action brought by him for loss of service by reason of injuries to such child.</p> <p>2. The fact that a young -child who has parents is found alone and unprotected in the street, is presumptive evidence that he was so exposed, voluntarily or negligently, by his protectors; and that, as their negligence contributed to his injuries, they cannot recover for loss of service.</p> <p>3. If a child of less than four years of age is allowed to go at large in a public street, without being under the immediate charge of a competent person, and if it does not appear that the said child was suitably guarded and restrained from going into the street, then the parents cannot recover for loss of service.</p> <p>4. If a child of less than four years of age is allowed by its parents to go unprotected in a public street, over which the cars are passing every five or ten minutes, such parent is a concurrent wrongdoer; and as his own fault contributed to the injuries of the child, and consequently to the loss of service, he cannot recover.</p> <p>6. It is the duty of the parent at all times to shield his child from danger, and this duty is the greater where the danger and risk are imminent; and the degree of protection should be in proportion to the helplessness and indiscretion of the child.</p> <p>The court (Stroud, P. J.) declined to charge as requested in the points.</p> <p>The verdict was for the plaintiff for $300.</p> <p>The defendants took a writ of error, and assigned for error the refusal to affirm the points.</p>

<p>1. An auditor appointed to distribute funds arising from a sheriff's sale, must treat a judgment as conclusive. He has no right to disregard it, or to allow any later lien priority over it.</p> <p>2. An issue was awarded between a prior and subsequent lien-creditors, to try whether the bond on which the first judgment was entered “was executed under a false representation as to the amount of said bond.” It was found that the bond had been executed under such representation. The judgment was conclusive against the subsequent judgments notwithstanding this finding.</p> <p>3. Only the defendant in the judgment could set it aside for such reasons.</p> <p>4. Judgment-creditors may attack a judgment collaterally when it is a fraud upon them, but not merely because it is a fraud on the debtor.</p> <p>5. A fraudulent judgment, like a fraudulent deed, is good against all but the interests intended to be defrauded. But they cannot call upon the court to vacate it on the record, which would annul it as to the whole world.</p>

<p>1. Grandchildren whose father died before their grandfather, the intestate, take not paramount to their father but through him by representation; such estate only as he would have taken had he survived the intestate.</p> <p>2. In the distribution of the grandfather’s-estate, the grandchildren take subject to advancements made to their father and to such debts due by him to the intestate as were recoverable when the estate descended.</p> <p>3. A debt to the intestate from a distributee, is but a set-off in equity against his share, it must be recoverable at the intestate’s death. An advancement is a legal abstraction in the intestate’s lifetime, of that much of the distributee’s share, and is not affected by lapse of time or limitation.</p> <p>4. An advancement is not controlled by the same defences as prevent the recovery of debts.</p> <p>5. Miller’s Appeal, 4 Wright 58, and Wallaces. Keyser, 1 P. P. Smith 493, explained.</p> <p>6. The Orphans’ Court has exclusive jurisdiction over the questions of advancement and distribution.</p>

<p>Certificate from Nisi Prius: To January Term 1868, No. 213.</p> <p>This was an amicable action of ejectment for one-sixth part of the real estate late of William Wilson, deceased, in which the Girard Life Insurance, Annuity and Trust Company, trustees of Susan A. Wister; and Margaret E. Wilson and William Wilson were plaintiffs, and Margaret Wilson, widow, John M. Wilson and others, heirs of William Wilson, deceased, were defendants. The following facts appeared by a case stated.</p> <p>William Wilson, the decedent, died intestate on the 7th of. November 1853, leaving his above-named widow an'd a number of children and grandchildren, his heirs at law, and leaving a large real and personal estate. Amongst his • grandchildren surviving him were the above-named Susan A. Wister, Margaret E. Wilson and William Wilson, who were the children of a son, James Wilson, who died before his father on the 27th of November 1847. At the time of his death, James owed his- father $9486.43, for which judgment had been entered against him in 1845. On the 1st of January 1866, this debt amounted to $16,381.14, which was then reduced to $8697.14 by deducting from it James Wilson’s share of his father’s personal estate.</p> <p>The value of the real estate of the intestate was fixed by agreement at $46,000, subject to the widow’s interest and each child’s share at $7666.66.</p> <p>“ If the court should be of the opinion that the plaintiffs were entitled to recover under the foregoing circumstances, then judgment to be entered for the plaintiffs for one-sixth of the real estate of William Wilson, subject to the life estate of the widow; but if the court should be of a contrary opinion, then judgment to be entered for the defendants.”</p> <p>The judge at Nisi Prius entered judgment for the defendants, delivering the following opinion:—</p> <p>“ William Wilson died intestate, leaving a widow and five children and three grandchildren, the children of a deceased son, James Wilson. James Wilson was indebted in his lifetime to his father on a judgment, which had been entered in the Supreme Court in July Term 1845; he died November 27th 1847; his father, November 7th 1853. It is agreed that the one-sixth of the real estate which descended to the three grandchildren is less in value than the balance which remains due on the judgment, after deducting therefrom his share of the personal estate. This is a case stated in an amicable action of ejectment, in,which the plaintiffs are the trustees of, and are vested with the interest of the three grandchildren. It is agreed that if the court should be of the opinion that the plaintiffs are entitled to recover, then judgment to be entered in their favor for one-sixth of the real estate, subject to the life estate of the widow, but if the court should be of a contrary opinion, then judgment to be entered for the defendants.</p> <p>“ There would be some technical difficulties in the way of plaintiffs’ recovery in ejectment, and if those were removed, there would be technical difficulties against defendants’ defence. But I assume from the argument, valuing plaintiffs’ one-sixth, and from the written agreements which have been submitted to me, that both parties waive all such questions and desire the opinion of the court upon this point alone, whether the share of the grandchildren descended to them subject to the payment of their father’s debt ? Had James Wilson survived his father, his part of the inheritance unquestionably would have been so subject. It was, at the time of his father’s death, a valid subsisting debt, no legal presumption of payment, from lapse of time, having then arisen.</p> <p>“ By the express provision of the Act of Assembly of 8th April 1833, Pamph. L. 316, ‘the issue of'a deceased child shall take, by representation, such share only as would have descended to such parent, if they had been living, at the death of the intestate.’</p> <p>“ It has accordingly been expressly decided that in an action by the grandchildren of an intestate against the administrators to recover a distributive share of the personal estate accruing' to them in right of their parent, the defendant may set off a debt due by the parent of the plaintiff to the intestate: Earnest v. Earnest, 5 Bawle 213. It is true the contrary was held in Ilgenfritz’s Appeal, 5 Watts 25, in which it was said that the grand- . children of an intestate take by substitution, not through but paramount to their parent. The property never was in the parent, consequently they did not inherit from him what he had not. _ '</p> <p>_ “ But Ilgenfritz’s Appeal was expressly overruled in McConkey v. McConkey, 9 Watts 352, and the law finally settled according to the decision of Earnest v. Earnest.</p> <p>“ It must be considered now as completely at rest. There is no distinction either in the words of the act or in reason between real and personal estate. They are put upon precisely the same footing in the statute, as indeed they ought to be. Judgment upon the case stated must therefore be entered for the defendants.”</p> <p>The plaintiff removed the case into the Supreme Court, and assigned for error thus entering judgment.</p>

<p>Error to the District Court of Philadelphia: No. 195, to July Term 1867.</p> <p>This was an action on the case at the suit of Ellen Mahoney, by her next friend, John Mahoney, against the North Pennsylvania Railroad Company: the writ was issued to June Term 1865 of the District Court.</p> <p>The action was for negligence by the defendants in running over the plaintiff with a tender of their engine.</p> <p>On the trial, the evidence was, that at about one o’clock in the afternoon, the plaintiff, who was about four years of age, and another child, who was the child of a Mrs. Farr, were playing on the west side of American street, on which are the defendants’ railroad tracks, near Oxford street. Mrs. Farr was the aunt of the plaintiff. She heard the engine-bell ringing, and when she saw the children she called to them to stay where they were for fear of the locomotive. When they heard her calling the children both came running towards her over towards the east side of the street., Mrs. Farr went and met them and got them on to the west side, on or near the pavement, where she let them go and slapped her own child. She then saw that the plaintiff had run towards the east side, and was between the two tracks. Mrs. Farr ran after the plaintiff, caught her and turned, with the plaintiff under her arm, to go to the west side. She met her own child, who avoided her, and crossed safely to the east; she reached for her child, her feet caught in the west rail of the east track, she was struck by the tender of the engine, which came from the north with the tender foremost. The tender passed over the child’s arm and seriously injured it, and also hurt Mrs. Farr so badly that she died shortly afterwards. When Mrs. Farr attempted to cross the track the tender was but a few feet from her.</p> <p>There was evidence for the plaintiff that there was no guard on, the tender; that wood was piled so high on it that the engineer and fireman could not see over it; that the engineer and fireman were in the engine-house looking from a little window in it; that they could not see immediately before the tender at all, but by putting their heads out the window, could see to a distance of forty or fifty feet before the tender; that the accident could have been avoided if they had been looking; that it was unusual for a tender in that street to be before the engine ; that the engine was going very rapidly; that it was a thickly-settled neighborhood, in the vicinity of a number of schools, with other facts tending to establish negligence.</p> <p>The defendants gave evidence that the engine was moving very slowly, with the bell ringing; that the engineer and fireman were watching the track with proper care, and other facts tending to disprove negligence.</p> <p>The defendants submitted the following points:—</p> <p>1. An attempt of a foot passenger to cross a railroad track, after notice of an approaching locomotive, constitutes negligence on the part of such foot passenger, and the railroad company is not liable for any accident which may occur to the foot passenger under such circumstances.</p> <p>2. Where a child is under the charge and control of a grown person at the time of attempting to cross a railroad track, and an accident occurs to the child, the child cannot recover damages if the negligence of the person in charge of it contributed to produce the accident.</p> <p>3. If the jury believe that the plaintiff’s aunt, who was in charge of her, could, by the exercise of reasonable care, have avoided the accident, the defendants are not liable in this suit.</p> <p>4. The presence of the defendants’ railway track was of itself a warning to the plaintiff and the person who had her in charge, of danger in crossing the same, and in the absence of evidence of the exercise of reasonable care on the part of Mrs. Farr in crossing the track, the verdict of the jury must be for the defendants.</p> <p>5. Under the evidence, the accident was caused by the negligence of the plaintiff's aunt in attempting to cross defendants’ track with the plaintiff in her arms, after notice of an approaching locomotive, and the plaintiff cannot recover in this suit.</p> <p>6. There is no sufficient and legal evidence on the part of the plaintiff that Mrs. Farr, who was in charge of the child, had exercised due care on her part, in crossing defendants’ track, and therefore the plaintiff is not entitled to recover.</p> <p>7. There is no sufficient evidence of negligence on the part of the defendants to entitle the plaintiff to recover in this suit.</p> <p>The judge below declined to charge as requested by the defendants, and reserved all the points.</p> <p>The jury found a verdict for the plaintiff for $2600.</p> <p>Judgment was afterwards entered for the plaintiff on the points reserved; the opinion of the court having been delivered by Sharswood, P. J.:—</p> <p>“We think there was evidence of neglect in the servants of the defendants sufficient to justify the verdict. It is not necessary here to say whether a mere scintilla is enough. On that point the finding of the jury is approved by the judge before whom the trial was had.</p> <p>“ The question then reserved is simply this, assuming negligence on the part of the defendants, whether the negligence of a person who, without express authority from the parents, but as an act of kindness, takes charge of an infant child, contributing to the injury, is any defence in an action by the child? In this instance the unfortunate woman who laid hold of the child to carry it across the track of the railroad, and who lost her own life in the attempt, was the aunt of the plaintiff. The plaintiff did not reside with the aunt, and no evidence was offered to show any authority in her. If, however, this was an action by the father to recover damages for the death of the child, a very different question would be presented. It would most probably be held that it was negligence to suffer such an infant to be on the streets without a care-taker, and he could not hold the defendants responsible, whether he had appointed a care-taker who was negligent or left the child to roam at large without one. To a child of plaintiff’s years no contributory negligence can be imputed. Neither is the.plaintiff ..precluded promj’eijoyer-y-against one joint _tort-feasor,.by showing that others have borne a share in it. All torts_by several joersons are joint or several, at .tlie. election.of the ’Abjured,.party, thoughTbut' one satisfaction can be recovered, and "there is no contributioiUamong tort-feasors. Hence springs the right-oT a"‘^amtiílNwEó" has recovered several verdicts against different defendants, to elect de melioribus damnis. There is nothing in the case to show that plaintiff could not have included her aunt as defendant with the company or their officers, or maintained a separate action against her. How then can she be barred from this action ? The English case cited and relied on by the counsel of defendants (5 Jur. Pt. 1, 1859, p. 936) was the case of the negligence of the person in charge of a child, who had taken and paid for his passage with defendants, a railroad company, and while waiting in the depot to get on board, the child was injured by the approach of another train, of which the defendants had given no notice. The defendants might well have said, we would not have received the child as a passenger without a care-taker, or if we had, we would have put him in charge of a servant, or in a place where no harm could come to him till the train was ready to start. The decisions of the New York and Massachusetts courts are certainly entitled to very high respect, but they are not authority binding upon us, and the precise point was not made or met in those cases: Hartfield v. Roper, 21 Wend. 615; Holly v. The Boston Gas Company, 8 Gray 123. In this decision we think that we are fully sustained by the opinion of ■our own Supreme Court in Smith v. O’Connor, 12 Wright 218.</p> <p>“Rule discharged, and judgment for plaintiff on points reserved.”</p> <p>The defendants took-a writ of error, and assigned for error the refusal of the court to affirm their points and entering judgment on the reserved points.</p>

<p>Appeal from the decree of the Court of Common Pleas of Philadelphia.</p> <p>The facts of this case are stated in the opinion of the court below, which was as follows:—</p> <p>Brewster, J. — “ This estate comes before us upon exceptions to the auditor’s report.</p> <p>“ On the 31st day of August 1860, Charles Miller and wife, in consideration of $1, conveyed twenty-one items of property to Messrs. William Miller and Morris Patterson, in trust, to sell the same at their discretion, and after deducting from the proceeds the necessary expenses, to apply the balance ‘ to the payment and satisfaction in full of the debts due and owing by the said Charles Miller to his following named creditors,’ then follow the names of twenty-four creditors, ‘ and any surplus to pay over to the said Charles Miller; but if the net proceeds * * * shall not be sufficient to pay * * all the debts due unto the said creditors, * * then the same to be disbursed among them pro rata.’</p> <p>“ The assignor was copartner in a number of firms. The trustees named in the assignment sold the property and filed their accounts. Before the auditor, to whom these accounts were referred, certain creditors not named in the assignment appeared, and two very important questions were thereupon presented for decision.</p> <p>“ 1- Whether this conveyance was an assignment with prefer enees within the prohibition of the Act of April 17th 1843; and if so, then</p> <p>2. Whether the money in the hands of the accountants was to be distributed to the individual creditors of the assignor alone, or whether partnership-creditors were to be let in as distributees.</p> <p>“ The auditor being £ of opinion that the Act of 1843 did not apply to this deed of trust,’ the decision of the second question became unnecessary.</p> <p>“ An alternative table of distribution was, however, reported.</p> <p>“ The views thus stated by the auditor are ably supported by him in a learned report, to which exceptions have been filed, which have been argued on both sides with great ability, and have received at our hands careful consideration. On behalf of the creditors named in the assignment, it has been urged :—</p> <p>“ 1. That there is no preference in this assignment, because the twenty-four creditors named therein share the estate pro ratá.</p> <p>“ 2. That the Act of 1843 has no application to partial assignments; and</p> <p>“ 3. That there was no intention on the part of this assignor to prefer any creditor.</p> <p>“ It has been stated in argument that the points thus presented have never been decided in Pennsylvania.</p> <p>“ Although unaided by any authority directly in point, we think there should be little difficulty in deciding this question under the law of Pennsylvania. As it stood prior to 1843, the debtor was master of the situation. As far back as 1802, the counsel for the defendants in error in Burd v. Smith, 4 Dallas 85, argued that the right to make voluntary assignments, and their validity when made, were expressly recognised. They cited 1 State Laws 690, and they added, £ the practice of making them in various forms is notorious, sometimes on condition of a general release to the debtor, sometimes with a classification of property, according to which the sales must be effected, and sometimes with a classification of creditors, according to.which a priority of payment is to be observed. The courts of Pennsylvania have uniformly recognised and supported voluntary conveyances of these several descriptions made boná fide, and not colorable with a latent and fraudulent use for the debtor.’</p> <p>££ The reporter adds as a note: ‘ This was agreed to be law by the counsel on both sides, and Smith, J., during the argument, declared that it had been frequently so decided in the Supreme Court.’ Accordingly, we find an assignment stipulating for a release within a specified time sustained, and the sheriff held to be a trespasser who levied his fi. fa. after some of the creditors had accepted the assignment, although before the execution of the release by any creditor: Lippincott v. Barker (1809), 2 Binn. 174; Pearpoint v. Graham (1818), 4 W. C. C. R. 232; Livingston v. Bell (1834), 3 Watts 198; Mechanics’ Bank v. Gorman (1844), 8 W. & S. 304; and many other cases, still maintained the debtor’s control of the property, and enabled him to dictate his own terms to his creditors. At last, in 1843, in a season of great financial embarrassment, the legislature felt that some protection was due to creditors.</p> <p>“ First came the resolution of January 21st 1843, Pamph. L. 367, Brightly’s Dig. 60, § 1, forbidding assignments by improvement corporations without the assent of certain of their creditors. Shortly after that, April 17th 1843, the act was approved, upon the construction of which the decision in this case depends. It declares that all assignments of property which shall hereafter be made by debtors to trustees, on account of inability, at the time of the assignments, to pay their debts, to prefer one or more creditors (except for the payment of wages of labor), shall be held and construed to enure to the benefit of all the creditors, &c.: Brightly’s Dig. 60, § 2.</p> <p>“ The first case in which this act appears to have been reviewed, was Blakey’s Appeal (1848), 7 Barr 449, which decided that judgments confessed were not prohibited by the statute, ‘ although an assignment was intended and shortly after executed.’</p> <p>“ Coulter, J. (at p. 451), says: ‘ The Act of 1843 provides, that all assignments in trust for the benefit of creditors, thereafter to be made, which prefer one or more creditors, shall be construed to enure for the benefit of all in proportion to their demands.’</p> <p>“ In Lea’s Appeal (1848), 9 Barr 504, the old right to stipulate for a release was again maintained, and held not to work a preference under the Act of 1843.</p> <p>“ Within a few months after the announcement of this decision, and before the volume in which it is now reported was issued, the legislature again interposed, and declared that any conditions for the payment of the creditors only who shall execute a release, shall be taken as a preference, and be void: Act of April 16th 1849, § 4, Pamph. L. 664, Brightly’s Dig. 60, §§ 1, 3.</p> <p>“ Now, it matters not that it has been decided that these Acts do not prohibit a composition with creditor's, to wit, a contract to discharge the debtor on his absolute transfer of certain property, for this is but payment without the form of trust or trustee: Wiener v. Davis (1852), 6 Harris 331; Uhler v. Maulfair (1854), 11 Id. 481.</p> <p>“ Nor is it at all decisive of this case, that a chose in action may be assigned in payment of a particular debt, as in Mellon’s Appeal (1855), 1 Grant 213, for this is again an actual liquidation of the debt, which can be as well effected by delivery of a bill receivable as by a bank bill. '</p> <p>“ Still less bearing have the cases in which it is ruled that an assignment can be made of partnership property for the payment of partnership debts: Appeal of Baker et al. (1853), 9 Harris 76; Hubler v. Waterman (1859), 9 Casey 414; York County Rank v. Carter (1861), 2 Wright 446. For they only declare that the assignments there passed upon made the very distribution of the property which the law would have mai’shalled without them. This classification of the decisions relied on to support this assignment now under consideration, disposes of all the authorities cited in the argument, save those referring to papers which were in no just application of the word assignments. Thus, in Ridgway v. Stewart (1842), 4 W. & S. 883, it was held that the mortgage executed by the Germantown and Norristown Railroad Co. was not invalid, because it had not been recorded under the Assignment Act of 1818 within thirty days. So too in Chaffees v. Risk (1855), 12 Harris 432; Henderson’s Appeal (1858), 7 Casey 5,02 ; and the Pennsylvania Bank Case of Griffin v. Rogers (1861), 2 Wright 382, the same principle was applied to documents clearly not assignments.</p> <p>“ The paper before, us for construction is conceded to be an assignment. The Act of 1843 applies to assignments,</p> <p>“1st. Of property in trust;</p> <p>“ 2d. Made by debtors to trustees;</p> <p>“ 3d. On account of inability at the time of the assignment to pay the debts of the assignor; and</p> <p>“ 4th. Containing a preference of one or more creditors except for the payment of wages of labor.</p> <p>“ As in Lucas v. The Sunbury and Erie Railroad Co. (1859), 8 Casey 464, we have here property, a trustee, a trust and creditors of an insolvent who are to take under it.</p> <p>“ This assignment conveyed property, and it was made by a debtor to trustees. It most certainly gave the twenty-four creditors named therein a precedence as to the property assigned, and if so, they were preferred. Indeed, it is difficult to understand how they can argue that they are not preferred in the assignment, when their very claim before the court is to have priority over all other creditors by reason of what is written in the paper. -The precedence and priority they claim are the very definitions by Worcester of the word preference. The verb prefer is derived from prce and fero, to bear before, and in this assignment these twenty-four creditors are named and borne before all others.</p> <p>“ How is this answered ?</p> <p>“ 1. It is denied that this assignment of property, which realized $64,995, is a preference.</p> <p>“ The creditors named in the deed admit that if they prevail they will carry off the fund to the utter exclusion of other creditors, but they argue that there is no preference amongst themselves. They share the estate equally, it is said, and hence it is argued that there is no preference. The practical effect of this argument would be to allow a debtor to assign his whole estate in trust for two preferred creditors, if he only adopted the precaution of stipulating that they should share the property equally. If I should announce this as the correct interpretation of the Act of 1848,1 should but invite a speedy legislative correction of my error.</p> <p>“ In the next place it is urged that the act only applies to general assignments, and that as this is confessedly but a transfer of part of the debtor’s property, the preference must be allowed to stand.</p> <p>“ The act lends no countenance to this argument. It does not say all ‘ general assignments,’ but all assignments; which expression of course includes partial as well as general assignments. Applying the practical test again to this argument, it would allow a complete evasion of the law by the merest device, for the debtor could in all cases retain a dollar from the assigned estate, and thus making a partial assignment, he could create preferences without stint.</p> <p>“ A sufficient answer, however, to this position is found in the definition of an assignment given by Lowrie, J., in Wiener v. Davis, already cited. He says, since the Act of 1843, an assignment may be defined to be a transfer by a debtor of the whole or part of his effects to some person in trust to pay all his creditors in like proportions, &c. •</p> <p>“ And it must also be borne in mind that it was ruled in Engle-Jbert v. Blanjot (1836), 2 Wh. 240, that a partial assignment must be recorded though the creditors preferred were less than the whole number, and that this has been followed by the decisions in Flanagan v. Wetherill (1839), 5 Wh. 280, and Lucas v. Sun-bury and Erie Railroad (1859).</p> <p>“ Lastly, it is said that there was no intention on the part of the assignor to prefer any of his creditors.</p> <p>“ Suppose this was so, and that he unintentionally violated the statute, would his mere purpose to obey the law absolve his act from the consequence of the transgression ? If this was an indictable offence, and he on trial in a criminal court, the question of intention might be all important, but here we deal with the act.</p> <p>“ No one can believe that the lease executed by the Philadelphia and Sunbury Railroad Company, in the case reported in 8 Casey 458, was intended by the officers of that corporation as an assignment, and yet it was so declared.</p> <p>“ The same document came up again before the Supreme Court for construction in Bittenbender v. Sunbury and Erie Railroad Co. (1861), 4 Wright 273, and the counsel argued there as here that there was no inability to pay debts. ‘ There was evidence of indebtedness,’ he said, ‘ but none of insolvency.’ In the elaborate opinion of Woodward, J., he says, ‘We think an assignment, though not intended, was in fact made.’</p> <p>“‘This was a grant,’ he continues, ‘not to Bittenbender & Eisk, but to the company for their use and benefit. It was an express trust; we can make nothing else of it. But the preferences are void because forbidden by statute. The law forbids preferences in such assignments.’</p> <p>“ I do not deem it necessary to discuss the question as to the assignor’s solvency at the date of the execution of this paper. Before the auditor the creditors contended that the assignment was made on account of inability of the assignor at the time to pay his debts, and this does not appear to have been questioned in the succeeding paragraph reporting the opposite argument. But all doubt upon this question, if it really has a place in the cause, is settled by the cross-examination of the assignor at the foot of page 28, wherein he admits that he had been in very considerable pecuniary embarrassment before making the deed of August 30th 1860. He adds that his paper had laid over and been protested in large amounts. He says further, ‘ I think one suit had actually been brought against me; in my opinion, if my creditors had been left to pursue their own remedies, at that time, my estate would not have been adequate to pay them.’</p> <p>“ It is difficult to conceive, short of absolute bankruptcy, of a clearer case of inability to pay debts. Embarrassment, protests, a suit, and a partial assignment to twenty-four creditors, are but the natural succession of events in such a history.</p> <p>“ I have thus endeavored to review the law and the facts as presented by this record. I feel that I have done so at unnecessary length, but my purpose has been to give every element of this case its due consideration. The result is, that the exceptions to the report must b,e sustained. Since the argument, the remaining exceptions have been withdrawn, and I have not noticed them in this opinion. My brethren concur in my conclusion.</p> <p>“Exceptions sustained.”</p> <p>From this decree the Miners’ Bank appealed, and filed the following assignments of error.</p> <p>That the court erred :—</p> <p>1. In sustaining the exceptions to the report of the auditor.</p> <p>2. In not confirming the auditor’s report.</p> <p>3. In awarding distribution according to the alternative schedule of distribution, and not according to the distribution reported by the auditor.</p> <p>4. In deciding, that the assignment was an assignment with preferences within the prohibition of the Act of 1843.</p>

<p>1. Equity will follow a fund through any number of transmutations and preserve it for the owner so long as it can be identified: no matter in whose name the legal right stands.</p> <p>2. If money has been converted by a trustee or agent into a chose in action, although the legal right may have been changed, equity regards the beneficial ownership.</p> <p>3. When a bank receives deposits, it becomes debtor to the depositor, and may pay the debt in answer to his checks and thus its liability be extinguished in absence of interference by his principals, to whom it belongs.</p> <p>4. But when the principals assert their right to the money before its repayment, give notice of their ownership and their unwillingness that the money should be paid to the agent, his right to reclaim it ceases.</p> <p>5. If an agent lends his principal’s money on a note to himself, the debtor cannot pay the agent after he has been informed of the superior right.</p> <p>6. Where a principal can show that his money has been placed in the hands of another by his agent, it is no objection to the owner’s claim that the other has promised to pay the agent.</p> <p>7. A creditor of a depositor who attaches money to the credit of his debtor in the bank, is in no better position than the depositor.</p> <p>8. Earmark is only an index enabling a beneficial owner to follow his property. It is not indispensable to enable him to assert his right to the property, its product or substitute. Evidence of substantial identity may be attached to the thing itself or it may be extraneous.</p> <p>9. If an agent, &c., mingle his principal’s money with his own so that it cannot be followed, the principal cannot recover it specifically. But the agent does not convert himself into a mere debtor; the principal may claim from the admixture the sum which belonged to him.</p> <p>10. A collector of rents deposited moneys of his principal in a bank in his own name, it was attached by a creditor of the depositor, and immediately afterwards, notice of ownership, &o., was given by the principal. Held, that the attaching creditor stood in the position of the depositor and could recover only what the depositor could.</p> <p>11. Jackson v. Bank of United States, 10 Barr 61, explained.</p>

<p>1. A statute should be interpreted so as to operate prospectively only, unless the language is so clear as to preclude all questions as to the intention of the legislature.</p> <p>2. Retrospective laws generally, if not universally, work injustice, and ought’ to be so construed only when the mandate of the legislature is imperative. ,</p> <p>3. When a testator makes a will formally executed according to the law existing at its execution, it would unjustly disappoint his right of disposition to apply to it a rule subsequently enacted, though before his death.</p> <p>4. The Act of April 26th 1855 (Charities), relates to wills thereafter to be made.</p>

<p>1. The right of alienation is an incident of ownership and belongs to a corporation as well as to an individual, when no restraint is imposed in the charter.</p> <p>2. Conversion is not destruction and can be made for the benefit of the trust. There is no solid objection to the change of church property, so long as its true purpose is preseiwed.</p> <p>3. A sale is often the best mode of executing a trust.</p> <p>4. An authority conferred by law to sell for the benefit of the congregation would impair no contract and violate no law.</p> <p>5. The intention of the Act of 18th April 1853 (Real Estate) is to loosen real estate, whether bound by the disabilities of persons, the limitations of contingent interests or restrictions to limited uses, and to preserve to every interest its proper share in the result. It is beneficent and remedial and not to be construed so as to defeat its main intent.</p> <p>6. Where there is no immunity from sale intended as a protection to the estate itself and there is but a mere want of power in the person who holds it and no independent interest would suffer by the conversion, the Act of 1853 intended to authorize the court to order a sale.</p> <p>7. The charter of “ The Ministers, Vestrymen and Churchwardens of the German Lutheran Congregation in and near the City of Philadelphia,” construed.</p>

<p>Error to the District Court of Philadelphia: No. 142, to January Term 1868.</p> <p>On the 2d of November 1864 Thomas J. Beans recovered judgment for $9108.50 against William H. Lawson, surviving partner of Lawson & Yerkes.</p> <p>On the same day an attachment execution was issued on this judgment, in which, amongst others, John C. Bullitt and Frederick Fairthorne, partners, under the firm of Bullitt & Fairthorne, were g'arnishees.</p> <p>Interrogatories to the garnishees were filed.</p> <p>The 5th, 7th and 9th with their answers were, in substance, as follows:—</p> <p>5. Whether the garnishees had in their possession or control any property of any kind belonging to the defendant or in which he was interested.</p> <p>The answer was, that Fairthorne, by virtue of an agreement set forth in the answer to the 7th interrogatory (to which they refer for a more full answer to this interrogatory), had under his control effects of defendant valued at $6000, but is bound to account for them not to the defendant, but according to that agreement.</p> <p>7. “Did Lawson & Yerkes assign.to you for the benefit of the creditors, or for some other purpose, and what, certain property, &c. ? set forth when the said assignment was made, whether the same was in writing or otherwise, and if in writing, annex a copy, &c.; state whether said writing has been recorded, and when, and where. Annex a schedule of the property so transferred and an account of your dealings and transactions in respect- of said property, and what money or proceeds you have received or collected from the sale of said property, or collections of said claims, and what of the said property or claims now are and were in your hands at the time of the service of the writ of attachment on you.”</p> <p>The answer was, “ the defendants did assign to Frederick Fairthorne certain effects and property; said assignment was made by an agreement dated July 10th i860, a copy of which is hereto annexed, marked A. Its object was to secure certain advances of money Avhich he agreed to make to said Lawson & Yerkes, as is shoAvn by said agreement.”</p> <p>On the 25th day of July 1860, the firm of Lawson & Yerkes was dissolved by mutual consent, to take effect on the 31st day of July, 1860, and in order to Avind up the business of the firm, a further agreement was entered into between them and Fairthorne, whereby he was constituted the attorney in fact of the firm, and authorized to wind up the business. A copy of said agreement is also annexed, marked B. Neither of said instruments AAras ever recorded. At that time, and for many months afterwards, Lawson & Yerkes were believed to be entirely solvent. The agreement of July 25th 1860, was made only because they'desired to procure the services of Fairthorne to wind up the business, as they disagreed between themselves.</p> <p>In September 1861, but before enough had been collected by Fairthorne to repay the advances made by him, Lawson & Yerkes executed the transfer, a copy of which is hereto annexed, marked C. Subsequently Fairthorne received a notice from the persons to whom the transfer had been made, of which a copy is hereto annexed, marked D. Fairthorne avers that since the repayment of his advances out of the collections of said estate, he has held the said effects as the attorney and representative of the persons named in the said transfer.</p> <p>Before the attachment was issued Edward Yerkes, one of the defendants, died. Bullitt has no funds in his hands received from said defendants, except as Fairthorne has kept the funds collected by him in the accounts of Bullitt & Fairthorne. *</p> <p>Garnishees aver that they are not bound to make any further answers in reference to these transactions.</p> <p>By the agreement (Exhibit A.) Lawson & Yerkes assigned to Fairthorne all their claims, assets, &c., except stock of liquors on hand and real estate, to be “ held, sold, collected and assigned by him in such manner as may seem bestthey bound themselves to execute to him bonds and mortgages to the value of their firm real estate and to give him security for the value of the stock, all payable at such dates as he should require. Fairthorne to hold the property and securities for such advances as he should make to pay their debts, the amount he was to advance to be sufficient to pay $18,962.37 borrowed money, and not to exceed $4000 bills payable in July 1860: this was to be the full amount of his advances. He to have the right to use the assigned property and securities to pledge for the purpose of raising money to make advances, &c. There were further provisions for his compensation ■and expenses.</p> <p>By the agreement (Exhibit B.) the partnership was dissolved, the stock of goods was to be appraised and divided equally between Lawson and Yerkes, each to give his notes to Fairthorne with security, the notes payable as specified. All the notes, bills, book accounts, claims and effects of the firm, and also their real and personal estate (except the stock of goods which had been disposed of as above stated), were thereby placed in the hands of Fairthorne as the attorney in fact of Lawson & Yerkes, upon the terms and for the uses and purposes thereinafter mentioned. Lawson & Yerkes to execute the necessary instruments to pass the title of the assigned estate and effects to Fairthorne, he to hold all the estate, &c., for the purpose of converting them into money, with as full power, as their attorney in fact, as they personally could have, except that if he should have an offer for any of the property less than it was appraised at, he was to consult them; if they should differ in opinion, he to decide, and if he should determine to accept the offer, the one who objected to have an opportunity for forty-eight hours of taking the property at the offer. The proceeds were to be applied to pay the debts of the firm as they should become due, first paying Eairthorne’s advances and all expenses. A list of debts was annexed to this agreement, and it was provided that if the assets should not realize sufficient to pay those debts, Eairthorne might call on Lawson & Yerkes to pay their notes given for the stock, &c. After payment of all the firm debts, the balance to be divided equally between Lawson and Yerkes; the name of the firm to be used when necessary, and each partner to sign the firm name when requested by Eairthorne.</p> <p>“ This power of attorney is given to Fairthorne to enable him to wind up the business of the firm of Lawson & Yerkes, and is only intended to constitute him the attorney in fact of the firm. This power of attorney is also subject to the terms of an agreement heretofore made between the parties hereto, dated July 10th 1860.”</p> <p>The transfer (Exhibit C., dated September 25th 1861), assigned to Thomas Beans and fifteen other creditors, naming them, all the property of every kind of Lawson & Yerkes in the hands of Eairthorne, subject to the lien for money due him, then amounting to $12,846.78, and to so much as he might thereafter advance, to secure to the named creditors certain specified amounts stated in the transfer to be due to them respectively, and when collected to pay their debtspro raid.</p> <p>The notice (Exhibit D), signed by fourteen creditors, not including Thomas Beans, was:—</p> <p>“E. Eairthorne, Esq.</p> <p>Dear Sir: — We have received from Messrs. Lawson & Yerkes the transfer of which the enclosed is a copy. You will please take notice of the same, and account to us for the property and assets referred to therein, when you have been paid the amount due to you.”</p> <p>9. “ What sums had been collected by the garnishees since filing answers to the previous interrogatories?”</p> <p>The answer was, that by an account theretofore filed coming down to January 25th 1865, Eairthorne had in his hands $4081.42, and had since made disbursements, acting as agent and attorney in fact for the creditors under the transfer of September 25th 1861, and that it will probably be necessary to make further outlays, &c.</p> <p>The garnishees also pleaded nulla Iona.</p> <p>On the trial the above answers and exhibits were given in evidence by the plaintiffs; they offered no other evidence: — the garnishees submitted no evidence.</p> <p>The court charged: — “ That the exhibits referred to in the answers of the garnishees, and thereto attached, did not constitute an assignment for the benefit of the creditors of the defendant in the attachment, that the amount in the hands of the garnishees was not subject to said attachment, and the jury should find for the garnishees.”</p> <p>The verdict was for the garnishees.</p> <p>On a motion for a new trial, the court below (Sharswood, P. J.) delivered the following opinion:—</p> <p>“ This is an attachment execution. All the evidence in the case consists of the answers of the garnishee. The possession of a sufficient fund to meet the claim of the plaintiff is admitted; but the answers show that this fund is held under three different instruments, all of which, taken together, the plaintiff contends amount to an assignment for the benefit of creditors, and are void — not having been recorded in pursuance of the Act of Assembly. The jury were directed to find a verdict for the garnishees, and this direction we are now called on to review.</p> <p>“The first of these instruments is dated July 10th 1860. It assigns to Frederick Fairthorne all the claims, debts, demands, book accounts, assets and effects of Lawson & Yerkes, the defendants in the attachment (except their real estate and stock of liquors on hand), to be held by him as security for such advances as he may make to pay the debts of the said firm. The amount to be advanced by said Fairthorne is to be sufficient to pay $18,962.87, borrowed money, and not to exceed $4000 bills payable in July 1860. There are some other provisions, which are not material to the question. It cannot be contended, and indeed it has not been seriously pressed, that this instrument, standing alone, is an assignment for the benefit of creditors. It is a mere mortgage to secure future advances, and it is entirely immaterial for what purpose the advances were to be made. That they were expressed to be for the payment of debts, gave the creditors no interest in them. Such mortgages have been distinctly held not to be within the Act of 24th of March 1818: Ridgway v. Stewart, 4 W. & S. 383; Manufacturers’ and Mechanics’ Bank v. Bank of Pennsylvania, 7 Id. 343; Griffin v. Rogers, 2 Wright 382. By repaying to Mr. Fairthorne his advances, charges and commissions, according to the terms of the paper, the grantors Could at any time have demanded and enforced, in equity, a reassignment to them of the securities. This mortgage was a lien on the assets transferred, not from its date, but from the date of his advances on the principle settled in Terhoven v. Kerns, 2 Barr 96; The Bank of Montgomery County’s Appeal, 12 Casey 170; so that an attachment by any creditor would have had a claim upon the fund which might come to be in his hands before any advances subsequently made by him.</p> <p>“ It is the second instrument upon which the difficulty is supposed to arise. It is dated July 25th 1860. It provides for the dissolution of the firm of Lawson & Yerkes. The stock is to be appraised, and then equally to be divided. Each partner is to give his note to Eairthorne for the amount received, payable in certain instalments. All the other estate of the firm is placed in the hands of Eairthorne, as attorney in fact of Lawson & Yerkes, who receives it for the purpose of collecting, selling and converting the same into money, and then to apply the proceeds to the payment of all the debts of the firm when and as the same shall become due and payable — first paying the said Eairthorne his advances, charges and expenses. Eairthorne is authorized to use the name of the firm, and other provisions are made in regard to the manner in which the business is to be done, which need not be here referred to. Under this instrument money was collected by Eairthorne, but not enough to repay the advances made by him.</p> <p>“It is supposed that the case of Watson v. Bagaley, 2 Jones 164, decides that such power of attorney is an assignment for the benefit of creditors. In that case the power authorized the collection of the debts of the grantor, and directed the attorney, from the proceeds, to pay certain creditors named, and to apply the residue pro raid among all the creditors. It was held, and properly held, that it was a binding appropriation, good against an attachment within the cases of The United States v. Vaughan, 3 Binn. 400, and Sharpless v. Welsh, 4 Dali. 280; and that, therefore, it was a virtual assignment. But there is nothing like that in the case before us — no appropriation to any particular creditors. Whatever Eairthorne received beyond his advances secured by the previous mortgage, would have been subject to the attachment of any creditor, and it is plain that for all assets not included in the mortgage, the debtors themselves could have been garnished or the property levied on by execution, for the title was still in Lawson & Yerkes. It is nothing more than a party constituting an attorney to wind up his business, pay his debts, and return thé residue, if any, to him. It is a part of the case that such was the object of this paper — Lawson & Yerkes supposing themselves to be perfectly solvent. The troubles of the country, however, interfered with the collection of the assets, and, finding themselves unable to pay their debts in full, as they had anticipated, they executed the last paper in the series, which is dated September 25th 1861. It is a transfer to their creditors, directly and by name, of all the assets in the hands of Eairthorne (under and subject to the terms of the previous papers, and to the lien of the said Eairthorne for. advances then amounting to $12,546.78, and also to such sums of money as he may hereafter advance under the said agreements), to secure to them their respective debts, specifying the amount in each case, with full power to collect and convert them into money, and apply the same, when and as collected and converted, to the payment, satisfaction and discharge of the said debts pro raid — the same being thereby transferred as collateral security for said debts. After the transfer, Mr. Fairthorne received notice thereof, signed by all the creditors named in the instrument, except the plaintiff, and one other creditor whose claim is of small amount. It has not been pretended that this transfer is an assignment for the benefit of creditors, as it stands by itself. The decisions of the Supreme Court have expressly settled the contrary: Chaffees v. Risk, 12 Harris 432; Henderson’s Appeal, 7 Casey 502. Now, if the transfer of July 10th 1860, was a mortgage, and therefore valid without recording, and the paper of July 25th 1860, a mere power to wind up as agent or attorney, and after these instruments the assets remained liable to execution and attachment, though subject to the mortgage, and if the transfer of September 25th 1865, is confessedly not an assignment requiring to be recorded, it is difficult to see how the three together can be so. The plaintiff’s attachment was not laid until after the last transfer had been made and accepted, and the funds in the hands of the garnishee at that time undoubtedly belonged, both at law and in equity, not to Lawson & Yerkes the defendants, but to the creditors to whom they had been assigned. We think, then, upon the whole, that the direction of the judge to the jury was correct.</p> <p>“ Rule discharged.”</p> <p>Beans took a writ of error and assigned the charge of the court for error.</p>

<p>1. Divorces should not be decreed without clear and satisfactory evidence 0p the wrong which the law treats as justifying cause for a divorce. Especially when the witnesses are likely to be biassed and have not been subjected to cross-examination.</p> <p>2. The court must be informed what the respondent has done, not what the witnesses may conclude, or what they may regard as the character of his conduct.</p>

<p>Certificate from Nisi Prius: No. 24, to January Term 1868.</p> <p>John Naglee, Jr., brought his bill against Peter. A. Keyser, Alfred Fitler and Thomas Hart, Jr., in which he set out—</p> <p>1. That his father, John Naglee, made his .will and codicils, proved February 10th 1852, by which he devised one-half of his residuary estate to trustees and their heirs in trust for his three sons; as to one-third of said half in trust fo.r the complainant and his heirs, and that the defendants are the trustees under that trust. The will and codicils are made pa'rt of the bill.</p> <p>2. That by certain proceedings had under a power in the will, and a bill in equity in the Court of Common Pleas of Philadelphia, the said residue was divided, and there was allotted to the complainant, as his share, certain real and personal property specified in the bill.</p> <p>3. That more than fifteen years have elapsed since the testator’s death, and the trustees had determined, before the said proceedings for division had commenced, that it would not be beneficial to the estate to continue longer to expend any part of the income in improvements, and that partition of the estate should be made; but the defendants refuse to surrender to the plaintiff the property allotted to him, and insist that it is their right and duty to hold it as his trustees during his life.</p> <p>He prayed that the defendants might be decreed to convey, &c.</p> <p>The testator by his will bequeathed one-half of the residue of his estate to trustees, in trust for his three daughters; one-third “for the sole and separate use” of each and her heirs.</p> <p>Also “ Ninth. — The other equal half part of all the residue and remainder of my estate, real, personal and mixed, I bequeath and devise unto William B. Hart, Peter A. Keyser and Elhanan W. Keyser, and to the survivors or survivor of them, and the heirs of the survivor, in trust for my three sons ;• the one-third of the said one-half in trust for my son Henry M. Naglee and his heirs; the one-third of the said one-half in trust for my son John Nag-lee, Jr., and his heirs; the remaining one-third of the said one-half in trust for my other son Joseph M. Naglee and his heirs. And after the payment of my debts, and providing for the interest bequeathed to my wife, and for the payment of my legacies, it is my will, and I direct my executors, after the settlement of their accounts, to pay to the trustees herein named the balance of the personal estate, to be held by said trustees, and to be appropriated as herein stated. Tenth. — It is my will, and I direct my trustees, after defraying the expenses of the trust, to expend the one-half of the net income of the residue of my personal estate, &c., in improvements upon the vacant lots of ground belonging to my estate, for the period of five years from my decease; and, if in the opinion of my said trustees it will be beneficial to my said estate, and the condition and welfare of my children will admit of it, they are authorized to expend more than one-half of the net income of my personal and real estate, during the period of five years aforesaid, and to continue the same for a longer period, if in their opinion it will be beneficial to said estate. * * Twelfth. — I further order and direct, that the interest and income of my personal estate, and the income and rents of my real estate, which shall not be expended in the manner and for the purpose before stated, to be paid to my said children in the proportions before stated; the share of each of my daughters to be paid to her for her sole and separate use, and her receipt shall be a sufficient discharge to the said trustees. * * Fourteenth. — At the expiration of the said five years, or at any time thereafter, if in the opinion of my trustees it will be for the benefit and advantage of my estate, and for the interest of my said children, that the said estate should be divided among my said children, I hereby authorize the same to be made, so that the share of each may be set out in severalty. Fifteenth, — It is my will and desire, that the share of the personal estate to which my daughters shall be entitled shall be invested by the said trustees in good and safe securities, and the net income thereof be paid to my said daughters for their sole and separate use. And the said trustees sha.UJi.ave the care and management of the real estate of my said daughters, shall, receive the rents thereof, pay the taxes, and make all necessary repairs and improvements upon the same, and let any portions of the vacant lots upon ground-rent, and make and execute all necessary deeds and conveyances for that purpose, and do all things necessary to render the said property productive, and after deducting all sums necessary for the preservation of the property, and to render it productive, and the necessary expenses of the trust, to pay over the residue of the rents and profits to each of my said daughters, to her sole and separate use, and her receipt shall be a sufficient discharge for the same, and after the death of either of my said daughters, her share to be for the use of her heirs and legal representatives; and I do hereby authorize and empower my said daughters to dispose of any share or part of the said property hereby bequeathed and devised to her by last will and testament, or by any writing in the nature of a last will and testament, as fully and effectually as if she was a feme sole and unmarried.”</p> <p>By a codicil, he directed, “in•case either of my sons should die, having no children, or their issue, that such son shall not convey or devise for the use of his wife more than one-third part of the net income of his estate, and that only so long as she shall ^remain his widow and unmarried. And I further direct, and it j is my will, that no part of the property hereby devised to either 1 of my sons shall at any time be liable to be sold for the payment of any of his debts which have heretofore or shall be hereafter contracted. And I further hereby alter the 10th article of my said will in this particular, that ‘ five years’ in said article shall read ‘ten years.’ ”</p> <p>An answer was put in, which raised the question, whether the plaintiff was entitled to have his trust estate transferred and conveyed to him free and discharged from the trust, he alleging that after the partition of the estate there was no duty for the trustees to perform, or object to be attained by maintaining the trust.</p> <p>The following opinion was delivered, at Nisi Prius, by Sharswood, J.:—</p> <p>“ This case comes before the court on bill and answer, and depends on the proper construction of the will of John Naglee, late of the Northern Liberties, deceased. The complainant prays that the defendants, trustees under the will, may be ordered to convey to him certain real estate devised to him by the said testator, the full beneficial title of which is now vested in him in fee in severalty, by virtue of a decree of the Court of Common Pleas of this county on a bill filed in that court for partition, which decree has been affirmed, on appeal to the Supreme Court: Naglee’s Estate, 2 P. F. Smith 154.</p> <p>“ The testator by his will, after some legacies and a provision for his widow, leaves all his estate, real and personal, one-half to trustees for his three sons respectively, one-third to each in fee; and one-half to trustees for his three daughters respectively, each, pne-third to her and her heirs, and for their sole and separate use. He then proceeds to direct that both these sets of trustees, forming, as it appears, for this purpose one joint body, shall expend one-half of the net income of his estate, or more if they deem it expedient, in ‘the erection of houses and other buildings and improvements, upon the vacant lots of ground’ belonging to his estate, for the period of five years from his decease, which period by codicil he enlarged to ten. The balance of the net income he directed to be paid to his sons and daughters in the proportion before stated; the shares of each of the daughters to be paid to her for her sole and separate use. He then proceeds: ‘ At the expiration of the said five years, or at any time thereafter, if, in the opinion of my trustees, it will be for the benefit and advantage of my said estate and for the interest of my said children, that the said estate should be divided among my said children, I hereby authorize the same to be made, so that the share of each may be set out in severalty.’ The answer admits,-that after the expiration of ten years from the death of the testator and after the death of his widow, a partition was duly made, and on the 5th January 1867, it was finally ordered and decreed by the Court of Common Pleas of this county, ‘ that the allotments and partition made by the master and commissioners should be and the same were thereby approved and confirmed, and that the same should stand and remain as so reported, firm and stable for ever, so that the said parties to whom allotments had been so made should take and hold their allotted shares in severalty to them respectively, according to their right and title under the will of John Naglee, deceased, and the laws of Pennsylvania.’</p> <p>“ So far as the interests of the sons are concerned, it appears to me, after the fullest reflection, that all the active duties of the trust terminated when the partition was accomplished, and so far as relates to the estate comprised in that proceeding. The sons became respectively seised of an absolute and unconditional equitable estate in fee simple in their respective parts set out to them. That such was the intention of the testator, appears to me very plainly from his going on, immediately after directing the partition, to provide that the share of the personal estate to which his daughters shall be entitled shall be invested by the trustees for their sole and separate use, and that they shall have the care and management of the ‘real estate of his said daughters;’ shall receive the rents, pay taxes, make repairs and improvements, and let any portions of the vacant lots on ground-rent, with the usual provisions securing it to the sole and separate use of his said daughters, and empowering each of them to dispose of her share by will, the same as if she was sole and unmarried. No provision whatever is made as to the continuance of the trust as to the respective shares of the sons. Before he arrives at the partition he speaks of ‘ his estate, real and personal;’ afterwards, it is his-daughters’ real and personal estate. The same language as to the interest of his sons is used in the second codicil, in which he expresses his'wish, and recommends, that in case either of his sons should die having no children or their issue, that such sons shall not convey or devise for the use of his wife more than one-third part of the net income of Ms estate, and that only so long as she shall remain his widow and unmarried. From all" which it is apparent that the testator knew well that his' sons would be invested with the absolute ownership in fee simple, with full power of disposition, either by conveyance or will.</p> <p>“It has been contended that the following clause keeps the trust alive and as an active trust, requiring the legal estate still to remain in the trustees after the partition: ‘ I do hereby authorize and empower my said trustees to sell or let on ground-rent any of the vacant land or lots belonging to my estate, at such times and upon such terms as they in their discretion may think proper, and I hereby authorize them to make, execute and deliver all necessary deeds, leases and conveyances for the purposes aforesaid.’ Even if this were now to be considered as an existing power, I do not see that it affects the question. It is a bare power — not a direction or a trust to sell — and may well subsist in the trustees, though the legal estate should be conveyed to the sons. It is to be observed that this authority is vested in the joint body of trustees, constituted by the will for the improvement of the real estate for the term of ten years — it is preceded and followed by clauses relating exclusively to their action under the joint trust. Looking at the testator’s whole scheme, and at the renewed grant of a similar, power in part at least — not to sell, but to let on ground-rent — to the trustees for his daughters after the partition, I am of the opinion that the power in question ceased with the partition. It was a useful and proper power, if limited to the period of time during which the improvements contemplated by the testator on his vacant lots were to be made. After the estate was divided, and set out in severalty to the sons and daughters, and the work of improvement ceased, it would be an unnecessary and embarrassing power. There is, in express words, no limitation of it. It is not confined even to the lives of the children, and as the testator has made provision for supplying the places of trustees who die or resign, it is not limited by the lives of the trustees.</p> <p>“ If not limited to the time, during which the trustees were to improve the testator’s vacant lots, it would be a power of sale suspended indefinitely over the fee, and open to the same objection as an executory devise or springing use, to take effect whenever A. or his heirs shall do a given act: Lewis on Perpetuity 547. I am quite clear that this power to sell or let on ground-rent, was intended by the testator only as auxiliary to the trust for improvement, and ceased when that trust ceased. The testator, or whoever was the draughtsman of this will, saw plainly this result, and therefore renewed the power in a modified and limited form over the estate of the daughters.</p> <p>“ If, then, we strike out of this will all the provisions which relate to the subject of the improvement of the estate, ‘in the erection of houses and other buildings upon the vacant lots of ground’ belonging to it, it stands, so far as the complainant in this bill is concerned, simply thus: ‘ I devise one-third of one-half of the residue of my estate unto William B. Hart, Peter A. Keyser and Elhanan W. Keyser, and to the survivors or survivor of them, and the heirs of the survivor, in trust for my son John Naglee, Jr., and his heirs.’ It is what has been termed a dry trust, the whole beneficial ownership and absolute power are in the cestui que trust, and the trustees ought to be decreed to convey the legal estate.</p> <p>“ It is very strongly urged upon me, how'ever, that it is necessary that the legal estate should continue in the defendants, in order to effectuate the intention of the testator as expressed in the second codicil to his will: — ‘ And I further direct, and it is my will, that no part of the property hereby devised to either of my sons shall at any time be liable to be sold for the payment of any of his debts, which have heretofore or shall hereafter be contracted.’ There can be no doubt, I think, upon the cases in Pennsylvania, that if this devise had been in trust for the sons for life, with a power of appointment by will, and in default of appointment then to their heirs, the provision of this second codicil would have kept the trust alive as an active trust, necessary in order effectually to carry out the intention of the testator: Fisher v. Taylor, 2 Rawle 33; Yaux v. Parke, 7 W. & S. 19; Brown et al. v. Williamson’s Executors, 12 Casey 338; Barnett’s Appeal, 10 Wright 392, and Shankland’s Appeal, 11 Id. 113. But we have here the case of a trust' of the fee giving the cestui que trust the beneficial estate with a provision that it shall not be liable to the debts of the cestui que trust. Such a provision, if there had been no trust, would have been as repugnant to the estate devised as a condition not to alien. The cestui que trusts — the sons — have the equitable estate in fee with full power to alien or devise, but it is attempted to deprive their estate of a necessary lawful incident, made so by statute, and consonant with every reason of justice and policy. Fisher v. Taylor comes nearest, but it is not this case. There was an equitable estate expressly for life, with a legal remainder to the heirs of the body of the tenant for life, which did not therefore coalesce under the rule in Shelley’s case. It seems clear to me that the mere interposition of a dry trusteef will not enable a testator to give a beneficial estate in fee simple with all the incidents of ownership, except that of liability foil debts.</p> <p>“ It was complained that these words in a deed or will were allowed by courts of equity to repeal the Statute of Uses. Here it is claimed that these words in a wrill shall repeal the entire legislation of the Commonwealth, since the first foundations of its jurisprudence were laid in the laws agreed upon in England, by which it was enacted that ‘ all lands and goods shall be liable to pay debts’ — which may well be termed its favorite policy, and of which it may justly be proud. I am of opinion, therefore, that the plaintiff is entitled to the relief which he prays.</p> <p>“ Let it be decreed that the defendants shall execute such deed or deeds as may be devised by the complainant or his counsel learned in law, at his cost, for the conveyance of the legal estate in fee to the complainant of the property or properties assigned and allotted to him by the decree in partition of the Court of Common Pleas of January 5th 1865.”</p> <p>The defendants appealed, and assigned the decree for error.</p>

<p>1. In an issue to try the validity of a will, persons who are beneficially interested under it at the commencement of the proceedings are substantially parties to the issue, although not so named. They are therefore liable for costs from which they cannot discharge themselves by a release.</p> <p>2. The opposite parties have a right to look for costs to those who are beneficially interested in the suit.</p> <p>3. It will be presumed that the proceeding was instituted by the direction of the party interested.</p> <p>4. Even if responsibility for costs would not attach to a party who had released all claim before proceedings had commenced, or who never having made any claim or taken any part in the contest should execute a release before examination, that must appear affirmatively.</p>

<p>1. It is not multifariousness, if a bill seek an account of stock bailed and its product from the bailee and those who have received it, and does not join distinct and independent matters mediately or immediately from him.</p> <p>2. Multifariousness should be objected to by demurrer, it is too late to object at the hearing.</p> <p>3. Where a person was a general agent for another for the custody and management of stock delivered to him, and for collection of its dividends, &e., an action of account render might be maintained against him as bailiff and the Act of October 13th 1840 (Equity), makes it a case for chancery jurisdiction.</p> <p>4. An agent without reward, or bailee without hire, responsible only for the most ordinary care, cannot use the bailment for his own purposes or needlessly expose it.</p> <p>5. Lending stock for the bailee’s own purposes and not for the benefit of the bailor, is a conversion and breach of .trust.</p> <p>6. Especially when the principal is a married woman, should her agent observe the strictest good faith towards her.</p> <p>7. A trustee or agent dealing with the property of the cestui que trust or principal, cannot divert it to purposes foreign to the trust or agency without the utmost openness and frankness with the party beneficially interested.</p> <p>8. An agent can derive no advantage from anything done by the principal in ignorance of what it was the duty of the agent to communicate. In .any agreement made with the pzlncipal which released the agent, he must show that the principal knew the actual condition of his property.</p> <p>9. A decree that two of the defendants pay a sum named, and costs, and dismissing the bill as to the other defendants, carried against the two, all the costs that the plaintiffs had incurred in the prosecution of their bill.</p> <p>10. If this was error it should have been assigned in the Supreme Court on appeal from the decree.</p> <p>11. The taxation of the costs was only the ascertainment of the amount to be paid: — the right of the plaintiffs to recover from the defendants all their costs could not be then readjudicated.</p>

<p>Certificate from Nisi Prius: In Equity: Nos. 38 and 66, to January Term 1866.</p> <p>These were a bill and cross-bill.</p> <p>The bill was by William Getty and others against Samuel Wilson, Thomas Baker and others, amongst whom was The Philadelphia National Bank.</p> <p>The cross-bill was by Samuel Wilson, Thomas Baker a.nd others, who (except The Philadelphia Bank) were defendants in the bill, against William Getty and others, plaintiffs in the bill, and The Philadelphia National Bank.</p> <p>By agreement, Thomas Robins was afterwards substituted in each case in the place of the Bank.</p> <p>The bill set out, amongst other things,'that on the 24th of January 1865, by an agreement in writing, signed by both parties, Samuel Wilson, one of the defendants, agreed to sell and convey to William Getty, one of the plaintiffs, a tract of land in Clarion county for $50,000, in certain instalments, the first. of $15,000, with the deeds to be deposited in bank, and to be paid to Wilson as soon as William A. Porter, Esq., should pronounce the deed to be complete and perfect; that the other plaintiffs were jointly interested with Getty; — and the other defendants, except the Bank, with Wilson ; that about the date of the agreement the plaintiffs deposited the $15,000, and the defendants deposited a deed and other papers connected with the title, in The Philadelphia National Bank, enclosed in a package, on which was endorsed what were the contents, and “ to be delivered only to William Getty, R. T. Elliott, Samuel Wilson and O. L. Lamberton,” and that the package was still in the bank; that the title was pronounced by Mr. Porter to be incomplete and imperfect; that in April 1865 the plaintiffs notified the defendants that on account of the defectiveness of the title they rescinded the contract and demanded a return of the money in bank.</p> <p>The plaintiffs prayed that the contract might be declared lawfully rescinded and delivered up to be cancelled, and that the $15,000 should be returned to them, and for general relief.</p> <p>The article, after the agreement to convey, proceeds as follows, viz.:—</p> <p>“ In consideration thereof the party of the second part agrees to pay to the party of the first part the sum of $50,000, $15,000 to be deposited in bank with deeds for the above-named property, which is to be paid over to the party of the first part as soon as William A. Porter, counsel for the parties, pronounces the deed to be complete and perfect; $10,000, which is the second payment — this to be paid to the party of the first part on April 1st 1865; $10,000, which is the third instalment, to be paid to the party of the first part on May 1st 1865; $15,000 to be paid June 1st 1865.”</p> <p>The answer of Mr. Robins was, that he held the package for the parties without having any interest in it, and submitted himself to the order of the court.</p> <p>The remaining defendants, amongst other things, averred that the title was valid, and denied that they were bound by Judge Porter’s opinion.</p> <p>By the cross-bill the plaintiffs aver that they have kept their part of the covenants, that the defendants have failed to keep theirs, that the bank refuses to deliver the $15,000 without the consent of the defendants, and pray that it may be decreed: — that the agreement be delivered into the custody of the court; that the Bank shall pay them the $15,000; that the defendants shall pay them the unpaid instalments with interest; and for general relief.</p> <p>The case was referred to Robert N. Willson, Esq., as examiner and master.</p> <p>He made an able and exhaustive report on all the questions raised by the bills, answers and evidence.</p> <p>Amongst other things he reported :—</p> <p>“ It is not disputed that the title to the property in dispute was submitted to Mr. William A. Porter, and that he pronounced it defective.” * * * * “ With the adverse decision of the umpire upon the title submitted to him, it is the opinion of the master that the whole contract came to an end.”</p> <p>“ Upon this ground, then, the master would also refuse a decree for specific performance, and grant the prayers of Hetty et al. for the rescission of the contract and return of the money deposited.”</p> <p>He further reported:—</p> <p>“ In view of the reasons given, the master would recommend to the court that the bill filed by Wilson et al. be dismissed, and that a decree be made declaring the aforesaid agreement between Wilson and Getty to be rescinded and null and void, and also that Mr. Thomas Robins be directed to open the package intrusted to his charge by the vendees, and pay over to the plaintiffs in the bill filed by Getty et al. the money therein contained, and deliver to Mr. Baker or to his order the other papers and documents also enclosed therein.”</p> <p>Exceptions were filed by Wilson and others, defendants in the bill and plaintiffs in the cross-bill, to the part of the report given above.</p> <p>Getty and others, plaintiffs in the bill, filed exceptions to other parts of the report.</p> <p>The court at Nisi Prius overruled the exceptions, confirmed the report and decreed: — That the agreement between Getty and Wilson be cancelled and declared null and void: That Robins open the package, pay over to the plaintiffs or their counsel the money therein contained, and deliver to Thomas Baker or to his order the other papers and documents also enclosed therein: And that the defendants (except Thomas Robins) pay the costs of this proceeding ; and that the costs of the defendants, the Philadelphia National Bank and Thomas Robins, as well in this cause as in the cause of Wilson v. Getty, be paid out of the said moneys in the hands of the said Thomas Robins.</p> <p>Both parties appealed.</p>

39, to January Term 1866. This was a bill in equity, filed by William Schmoele and Henry Schmoele against The Schuylkill and Dauphin Improvement and Railroad Company.

<p>Certificate from Nisi Prius: In Equity: No. 14, to July Term 1866.</p> <p>This was a bill in equity by William A. Rhodes and thirteen others against Elon Dunbar, John D. Jones, John H. Dunbar and Edward Clemens.</p> <p>The bill set out that the plaintiffs were owners of houses and lots on Chestnut street between Twentieth and Twenty-first streets, Philadelphia, that John D. Jones, one of the defendants, had owned a planing-mill on Twenty-first street near Chestnut street, that “ the character of the work done in said mill, and the mode in which it is worked, renders it entirely unsuited to a neighborhood closely built up, and especially to one occupied by handsome buildings used as residences, and it is calculated to prevent the use of the neighboring ground for such buildings as would in the ordinary course of affairs and the extension of the city in that direction, be put up there;” that the work done in it was planing boards by steam power, that it necessarily produced a very large quantity of shavings, chips and saw-dust; that the material used was of a most inflammable character, and rendered it dangerous to buildings in the vicinity; that the refuse matter was used to generate steam, and produced large quantities of smoke and soot which spread over the neighboring buildings, causing discomfort and annoyance to the neighborhood and interfering with the wash-mg of clothes; that the running of the machinery produced loud and offensive noises, which created a positive nuisance to the plaintiffs and other persons in the neighborhood, and was injurious to improvements suitable for that locality; that the building was burned in May 1866, injuring many houses in the neighborhood, and that the defendants, as plaintiffs were informed and believed, were about to rebuild the mill for the same or similar purposes; the bill charged that all the above injurious consequences would ensue if the design should be carried out.</p> <p>They prayed for an injunction restraining the defendants from erecting such mill, or, if that should not be granted, for an injunction restraining them from using the building which might be “ erected, in the manufacture of lumber, or in the sawing, planing, tongueing or grooving of such material, or in any similar way; and from employing it in any use or for any purpose which shall be productive of noise, dirt, smoke, soot, which shall be annoying, or injurious, or offensive to the plaintiffs or to the persons residing or owning property in the neighborhood; or in any business which renders the building hazardous, and liable to fire to an extent that will be hazardous to the buildings in the vicinity.”</p> <p>On motion for special injunction, Read, J., delivered the following opinion:—</p> <p>“ A glass-house, a chandler-shop, a swine-yard, a pig-sty, a pig boarding-house, a soap-factory, a tallow-furnace, a slaughterhouse, a bone-boiling establishment, a horse-boiling establishment, a mill-dam, a melting-house of animal fat and tallow, a cotton-press, finishing steam-boilers, the use of a public place for immigrants, brick-burning, laying up wet jute, storing wood-naphtha, gunpowder, petroleum or nitro-glycerine, a lime-kiln, a dye-house, a furnace, a smelting-house, a smith-forge, a livery-stable, a tannery, gas-works — all are or have been declared nuisances. / Some are nuisances per se¡ others are nuisances according to the locality in which they are placed. In offensive trades either smell or noise may create a nuisance. In dangerous trades the imminent risk of fire or explosion may be sufficient.</p> <p>“ Carrying on an offensive trade for twenty years in a place remote from buildings and public roads does not entitle the owner to continue it in the same place after houses have been built and roads laid out in the neighborhood, to the occupants of which, and travellers upon which, it is a nuisance: Commonwealth v. Upton, 6 Gray 473. As the city extends such nuisances should be removed to the vacant grounds beyond the immediate neighborhood of the residences of the citizens. This, public policy, as well as the health and comfort of the population of the city, demand: Brady v. Weeks, 3 Barbour S. C. R. 159. And in 4 Wisconsin 387, Douglass v. The State, it was held that it is no defence to an indictment for maintaining a nuisance by means of a mill-dam, that it was erected before any inhabitants had settled along the margin of the stream flowed by it. 4 There is no such thing 'as a prescriptive right or any other right to maintain a public nuisance1 Denio 524. 4 Nor does the law recognise any distinction between the several points of a city dedicated to public use.’ 4If the one that is before you is sanctioned, aman will have a perfect right to open another opposite this court-house:’ Per Sergeant, J., Brightly’s N. P. Rep. 74.</p> <p>44 These principles are applicable in their most stringent form to the great cities of Boston, New York, Philadelphia and Baltimore on the Atlantic, and enjoying the inestimable benefit of a pure atmosphere, clear from smoke by the use of the anthracite coal of this state. These cities have increased, extended and spread beyond all example, and our own, now covering 129 square miles, is not the least wonderful of the four. The city proper, from 1682 to 1854, according to Holmes’s plan, extended one mile on each river, and two miles from river to river, covering about two square miles, being nearly double the size of the city of London.</p> <p>44 By the charter of 1701, the ends of the streets extending into the Delaware were made free for the use and service of the city, but the same privilege was not extended to the ends of the streets extending into the river Schuylkill until the year 1805. Market, or High street, occupied the centre, from east to west, was 100 feet wide, and was crossed by another wide avenue, from north to south — by -Broad, 0r Fourteenth street. The first principal street north of Market is Mulberry, now Arch street, 66 feet wide, and the corresponding one south is Chestnut street, 50 feet wide, and 484 feet south of Market street.</p> <p>44 The ordinary square between the north and south streets is 396 feet, but the square between Twentieth and Twenty-first streets is 495 feet. The ordinary streets are 50 feet wide, but Front street on the Delaware, and Twenty-second on the Schuylkill, are 60 feet streets. The square between Twenty-second street and Asheton, or Twenty-third street, is 272 feet, and between it and Beach street or Twenty-fourth street only 240 feet. Aspen street runs midway from Lombard to Barker street, between Twenty-first and Twenty-second streets, and 25 feet 6 inches north of Chestnut street widens, according to one plan, 28 feet, and according to the plan in the surveyor’s office to 36 feet, and this portion on a city map by William Allen, in 1830, was called Aspen’s court. The square on Chestnut street, from Twentieth to Twenty-first streets, is filled with new and substantial dwelling-houses on the north side, built in the modern style, and are admirable specimens of house architecture. The south side is nearly filled up and the row extends to Twenty-first street.</p> <p>■“ The corresponding square, on Walnut street, on the north side, is built up in the same way, my brother Strong occupying No. 2043, whilst on the south side are some costly edifices, and that portion will be soon filled up in a corresponding manner. The north side of Walnut street, between Twenty-first and Twenty-second, has a row of dwellings erecting, terminating at % Twenty-second street. On the north side of Arch street the dwellings are extended to Twenty-second street. On the south side, the dwellings extend to Twentieth street, the two last being very large. From Twentieth to Twenty-first streets, there are two rows of beautiful houses, separated by a screw-bolt factory, which would be removed if the proprietors were obliged to occupy 2036, instead of their present quiet and retired residence.</p> <p>“ The improvement on Arch street is stopped by a great public nuisance, the gas-works, which, I suppose, the city could dispense with, as the works at Point Breeze must be sufficient. Market street is devoted to stores and to business, but on each side, certainly west of Broad street, Arch street and Chestnut street are, and should be, devoted to private residences. In the old city the current has been steadily westward on both these streets — retail stores, then wholesale stores, occupying their eastern portion. My recollection extends back sixty years, when Chestnut street was not paved between Seventh and Eighth, and the south-west corner of Seventh and Chestnut streets was a hill 15 feet high, with an old wooden house on it, and the north side of Chestnut street, up to Mr. Fitzimons’ house, afterwards Pepper’s, with .one exception, was in a similar state. Judge Sergeant in Commonwealth v. Alburger, 1 Wharton 486, has described the various uses to which the city squares were put before they became ornaments to the city and places of recreation for its citizens. Washington Square was a horse-market and potter’s field; Logan Square was a potter’s field, and the hanging-place of John Joyce and Peter Matthias, for a cold-blooded murder of an old woman. Markoe’s lot, at Tenth and Chestnut streets, was a skating-ground in winter and a shinny-ground in summer. Brick-kiln ponds are now covered with noble dwellings, and the executors of Stephen Grirard, thirty-four years ago, burnt the bricks on the ground between Eleventh and Twelfth on Chestnut street with which the Grirard houses were erected.</p> <p>“ The old engine-house on Chestnut street, afterwards used as a china factory, disappeared years ago, a magnificent bridge, connecting East and West Chestnut street will be opened in a few days, and East Chestnut will be filled with dwellings to the water’s edge, unless stopped by existing obstructions. ’ On the south side of Chestnut street is the depot of the Philadelphia City Passenger Railway Company, which is to be removed over Schuylkill, and may therefore be considered as gone; the lot on north side of Chestnut street west of Aspen street is a stone yard, and of course both sides will be, or are, ready to receive first-rate dwellings. There only remains the half square east of Aspen street and south of Barker street. This street is 25 feet wide and the north lot on Market street is 125 feet deep, making 150 feet and leaving 344 feet between Barker street and Chestnut street. Of this space, including the alley, the ten houses of Dr. Stewart represent 80 feet, and the Jones lot, on which the planing-mill stood, 123 feet 9 inches, making 203 feet 9 inches. If this planing-mill is rebuilt, and is not destroyed by fire, it will form a permanent obstruction to the improvement of this part of Chestnut street, and, of course, reduce the value of the surrounding property, which must depend upon its fitness for dwelling-houses of a superior kind. But this leaves still the question, Is a steam planing-mill, with its steam-engine and its machinery, its chips and shavings and surrounding lumber, and its lumber in the process of manufacture and manufactured, with the refuse chips and shavings used as fuel, a public or a private nuisance ? If it is either, are all or any of these parties entitled to the injunction asked for ?</p> <p>“ The first planing-machine or mill was, I believe, erected on Arch and Broad streets, and opposite the Arch street prison. They have disappeared, and Arch street, from Broad to the Schuylkill, is a magnificent street, covered with beautiful dwellings and churches. In the face of these improvements, the planing-mill moved to a more congenial neighborhood. I don’t believe Judge Sergeant would have thought' that the Fifteenth street planing-mill, with its unceasing whirr and noise of the machinery, should have been permitted to be opened opposite the court-house, any more than the pig-sty he so emphatically eschewed.</p> <p>“ It is established beyond all doubts, that the neighbors were greatly annoyed by the soot, smoke and dust from the mill, the fuel used being the refuse wood, shavings and chips of the mill;' This is proved distinctly by Dr. Stewart, Mr. Rhodes, and Mr. Jeanes, who specifies also the danger from cinders or sparks, which are also testified to by Messrs. Nathans, Dickey and Coffin; and Mr. Hoxie testified to constant complaints of annoyance from soot and cinders of the mill, by all sorts of persons in the neighborhood, his own family and nearly every neighbor; by Mr. Josiah B. Thompson, who says : ‘ There has been constant annoyance to myself and family from the soot, smoke and cinders from the mill. This has been incessant, entering through every window when opened, covering the window-sills when shut, and covering the steps and pavement. It has greatly interfered with the washing and drying of clothes. This nuisance has been a constant and general subject of complaint among the neighbors.’ Mr. Berry the hotel-keeper gives similar testimony, and it is closed by a long list of neighbors, certifying to the same or similar facts.</p> <p>“ I cannot, therefore, hesitate to believe that from the causes assigned, the neighbors have suffered from this mill such annoyances and discomforts as cannot be permitted in the built-up and improved parts of our city, and that it must necessarily affect also the value of property in the neighborhood, and if rebuilt, prevent its future improvement by buildings suited to the street and locality.</p> <p>“ The same witnesses prove the hazardous nature of the business in regard to fire, not only with regard to the mill itself, but the neighboring properties. The mill, it appears, has been on fire several times, and was burnt to the ground on the morning of the 1st of May last, injuring some of the adjoining houses, and there can be little doubt that if it had taken place at night, with a strong north-west wind, it would have caused a large destruction of property, with probable loss of life.</p> <p>“ There is, however, positive testimony as to the hazardous and dangerous character of such a planing-mill in a built-up and improving part of the city. Mr. Blackburn, our experienced and able fire marshal, with a practical experience of nearly sixteen years in matters connected with fire, in his affidavit, says :—</p> <p>“ ‘ As far as my knowledge and experience go, I regard planing-mills, sawing-mills, and establishments worked by steam, in which lumber is worked into planed boards, sashes, mouldings, doors and the like, as among the most hazardous of all risks. The accumulation of a large body of worked and unworked lumber, shavings, chips and bits of wood, necessarily makes'this the case. I regard the destruction of such establishments, where the fuel used in making the fires is from the refuse wood, chips and shavings, as a mere question of time. Sooner or later they are almost invariably burnt. In confirmation of this, I will give particular instances.’ He then gives three cases in which the mills were burnt down twice, and nine others in which they were entirely burnt down once, except in one instance where the building was badly damaged twice. In one case there was a loss of over a quarter million of dollars, and the cause of the conflagration was the ignition of a lot of refuse wood and stuff in front of one of the furnaces.</p> <p>“ He then says : ‘ I think I could give from my records a hundred instances of such establishments which have been more or less injured by fire, many of them totally destroyed.’</p> <p>“ ‘ I regard a planing-mill or any establishment of the kind as entirely unsuited to a densely-built portion of the city, as there is always very great risk of conflagration to itself and the adjoining buildings, and necessarily great hazard to property in the neighborhood, and danger of loss of life, especially when the fire occurs in the night time.’ •</p> <p>“ ‘ When Murphy & Allison’s car establishment was burned, their watchman was so severely injured by the fire as to cause his death in a few hours afterwards.’</p> <p>“ Mr. Nathan H. Wood, who rented a room in the mill, speaks of the complaints of neighbors and threats of prosecution, of the number of times it was on fire, and says, ‘ In my opinion, and from my experience I think there is no kind of factory, except that for the making of gunpowder, more hazardous or liable to fire.’ He then mentions a fire-proof planing-mill in New York which took fire during the day, in the absence of the engineer for a few minutes, and was destroyed.</p> <p>“ £ The flames,’ says Mr. Jeanes, £ extended forty or fifty feet above the hotel, at the corner, which is a four-story building.’ Mr. William Green, who has been surveyor of the Eranklin Eire Insurance Company for upwards of twenty years, says, £ So far as my experience goes, which is considerable, I regard planing-mills as the most hazardous of all risks, after gunpowder-mills and petroleum establishments. I do not see how it is possible to erect and run such a mill without great danger of loss by fire. As evidence of this my experience is, that all such establishments are almost always burnt down. It is merely a question of time.’</p> <p>££ £ If the wind had been blowing strongly from the north-west, and the fire had taken place at a late hour of the night, on the occasion of Jones’s planing-mill being burned, I think there would have been imminent danger of fire to all the houses on both sides of Chestnut street between Twenty-first and Twentieth streets.’</p> <p>££ £ 5. I am strongly of opinion that no such establishment should be allowed in the built parts of the city or in a neighborhood like that in which Jones’s planing-mill recently stood.’</p> <p>“£ 6. I have read Mr. Blackburn’s affidavit and concur fully with what he says in it.’</p> <p>££ The affidavit of Walter Allison, one of our most experienced builders, and whose shop was next to the mill, is conclusive on the point of danger :—</p> <p>“ £ 2. I consider such a mill as this,’ says he, £ and all similar establishments extremely dangerous in the built-up parts of the city, by reason of the risk from fire, and have known several such mills to be burned down.’</p> <p>££ £ 3. In my opinion I think no such establishments should be permitted to be located in built-up portions of the city. I have already expressed myself to this effect, saying that they were little better than powder magazines. It is almost utterly impossible to put them out when once fairly on fire. On the occasion of the mill burning down in May last, the heat was so intense that my men were unable to remove the frames, doors and sashes under my shed in my yard. The heat was so intense that the glass in the sashing was melted into lumps.’</p> <p>“ ‘ 4. I do not believe it would be a great disadvantage to lumbermen and builders if such mills were located in unbuilt portions of the city. In my judgment all such establishments should be located away from built-up portions of the city. Had that fire occurred at night, with a strong wind blowing, there would have been not only very great danger to all the property in the neighborhood, but very great peril to the lives of the persons dwelling near the mill. There is danger from explosion of the engine-boilers as well as danger of fire.’</p> <p>“ After this evidence, is it necessary for me to discuss the question, whether such a mill is a public or a private nuisance ? It is a nuisance, and the plaintiffs are entitled to relief because, no matter what improvements may be introduced, the building proposed to be erected must be a nuisance, and I should regard myself as derelict if I did not interpose the strong arm of the law to prevent it.</p> <p>“ I pass over the minor injuries to property by increased rates of insurance, because there stands out in broad relief the imminent danger to the lives and property of our fellow-citizens.</p> <p>“ In England, wood naphtha and wet jute are nuisances, and so I should consider petroleum if brought into the built parts of the city. We have had one dreadful example of this, when buildings were burned and the gutters ran living fire, preventing the escape and destroying the lives of helpless women and children.</p> <p>“ Fire is the most dreadful infliction of the present time. You can hardly open a newspaper without meeting the account of some terrible conflagration attended with immense loss of property and great sacrifice of human life. It is, therefore, our duty to narrow the circle of danger by forbidding erections which must certainly be destroyed by the inherent vices of their constitutions.</p> <p>“ The late English decisions correspond with the increasing civilization of the age. In Reg. v. Lister, 3 Jur. N. S. 571 (May 30th 1857), the Court of Criminal Appeal, composed of twelve of the fifteen -law judges, including the three chiefs of the three superior courts of law, held that keeping in a warehouse near to divers streets and dwelling-houses divers large and excessive quantities of a dangerous, ígnitable and explosive fluid, called ‘ wood naphtha,’ was a nuisance, and indictable as .such. The jury found, if ignited, water could not put out the fire, except where rvater .was applied in enormous quantities; and they also found that it was the practice never to allow any candles, or fire, or gaslight to enter the warehouse, and so long as that continued the naphtha would not produce danger.</p> <p>“ So of wet jute, a substance resembling hemp, deposited on an open lot, it being proved that it had been the occasion of large and destructive fires in London, and the very lot of jute itself had been saved from such a fire as a damaged article: 11 Jur. N. S. p. 132. So gunpowder, stored by grocers and others, which the unscientific portion of the community always believed was the cause of the explosions and extension of the great fire on the eastern front of the city in 1850; and it was then asserted that if the fire had extended a block further, it would have reached a store where several barrels of gunpowder were stored contrary to law. So in Bamford v. Turnley, in the Exchequer Chamber, 9 Jur. N. S. 377, it was held, where a man burns bricks on his own land, so as to annoy his neighbor in the enjoyment of his house, he cannot excuse the act by showing that it was done in a proper and convenient place, and was a reasonable use of the land. So in Cavey v. Lidbetter, Common Pleas, 9 Jur. N. S. 798, it was held no misdirection in the judge to refuse to leave to the jury, whether the bricks had been burnt in a proper and convenient place for that purpose. In Beardmore v. Tredwell, 9 Jur. N. S. 272, V. Ch. Stuart held that where a public contractor, for furnishing bricks for fortifications, commenced burning bricks within 340 yards of the plaintiff’s mansion, was a nuisance, and restrained it, and directed that the defendant should not burn any bricks within a distance of 653 yards, or 1959 feet, from the plaintiff’s house.</p> <p>“ In The Stockport Waterworks Company v. Potter, 7 Jur. N. S., p. 880, carrying on a lawful trade in the ordinary and obvious manner, is not necessarily carrying it on in a proper manner.</p> <p>“ In The St. Helens Smelting Company v. Tipping, decided in the House of Lords on July 5th 1865 (12 L. J. R. N. S. 776), the smelting works were held a nuisance though a mile and a half distant. ‘ Of the effect of the vapors exhaling from these works upon the plaintiff’s property, and the injury done to the trees and shrubs, there is abundance of evidence,’ says Lord Westbury. The injury in this case was to the vegetation. In Scott v. Forth, 10 L. T. R. N. S. 240, Justice Blackburn, in a case where tilt-hammers shook the cottages of the plaintiff, cracked the walls, and the tenants left, the defence being that the grievances complained of were caused in the reasonable and proper exercise of liis trade, in a reasonable and proper place, held that in law this was no answer to the action. The jury, probably Sheffield men, found-'it was not a nuisance.</p> <p>“ There are two articles in the last English Quarterly and Edinburgh Reviews of great interest, not only to England, but to the United States, and particularly to this state and city. The first is the 5th article, entitled ‘ coal and smoke,’ and treats of the probable exhaustion of their coal-mines, and the effect of the bituminous coal-smoke on the metropolis and other cities of the kingdom, and at the same time recognising the incalculable value of the anthracite region of this great state, as found in its three great coal-fields of the Schuylkill, the Lehigh and the Wyoming or Susquehanna — all connected by water and rail with this city. It is instructive to read the effects of coal-smoke on the atmosphere of London. It reminds us of some localities in the West. ‘And not only,’ says the reviewer, ‘ do our hands and faces contract dirt, but soot finds its way into the air-tubes of our lungs. Plants as well as animals are poisoned by smoke, and see.'how they struggle for existence in the parks of London. The fiiie trees in Kensington Garden are dying apace, and roses bloom not within some miles of Charing Cross. Then how great oppression falls on our spirits from the fuliginous exclusion of the .pure light of the sun V Poor Mr. Peabody, according to this authority, as a reward for his magnificent charity, will have ‘ a thing we call a statue, which, though consisting of bronze, is blackened with soot — an effect which, it is reported, an eminent deceased sculptor admired as they were thus boldly relieved against the sky.’</p> <p>“ The second article is the third series in the Edinburgh, headed ‘ Water Supply,’ which points out the present inadequate supply, and the necessity of resorting to the mountains of Wales for pure water.</p> <p>“We can never be sufficiently grateful to our great founder, William Penn, for the selection of the site of this City of Brotherly Love on the banks of two fresh-water streams, which, when the Schuylkill is exhausted, can be supplied by the inexhaustible Delaware from above the Falls of Trenton. With these natural advantages we have the coal and iron side by side, and the best and most secure position for a great navy-yard in the world.</p> <p>“ One of the scientific witnesses has been unfortunate in the selection of the screw-bolt factory on Arch street, with its trip-hammers, for the owner of No. 2036 could soon teach him the law on this question, and Esler’s planing-mill is only saved by being in the rear of the Church of the Epiphany, and separated by a small street being on the Market street portion of the block, and with similar mechanical trades near it.</p> <p>“ If either of these factories were opposite this court-house, it would not require a judge to tell us they were public nuisances.</p> <p>“ The case of Elmhirst v. Spencer, 2 Mac. & G. 45 (Dec. 6th 1849), is no longer law in England, since the alteration in the Court of Chancery by the Chancery Amendment Act, as stated in Goldsmid v. Tunbridge Wells Improvement Commissioners, 14 L. T. R. N. S. 154, decided by the Lords Justices on the 24th of March 1866 — and certainly on a motion for a preliminary injunction would not be applicable here: Sunbury and Erie Railroad Co. v. Cooper, 9 Casey 280; Holsman v. Boiling Spring Bleaching Company, 1 McC. N. J. Ch. 135.</p> <p>“ This court is both a court of law and equity, and the judge is therefore entirely competent to decide all questions of law, and upon the equity side of fact — unless he desires to have the assistance of a jury, which is clearly not required in this case.”</p> <p>On the 16th of June 1866, a special injunction was granted.</p> <p>The defendants them put in separate answers.</p> <p>Jones answered, averring, amongst other things, that his mill, from the kind and manner of work, was not unsuited to the neighborhood, or more undesirable than other manufactories, and that it was not calculated to prevent the erection of suitable buildings in the neighborhood; that the risk of fire was less than from many carpenter shops, cotton factories, &c., and the like, in other built-up parts of the city; the smoke and soot might be prevented from annoying the neighbors by suitable appliances. He then averred, that before the burning of the mill he had agreed with the defendants, Clemens and John H.' Dunbar, to introduce improvements into the mill, but owing to the fire, he had sold the lot to them, and agreed to erect for them a new mill, which would be built in a secure manner (describing it), “ with every precaution against fire that practical ingenuity can suggest,” with such applianees to carry off smoke and soot as would occasion no nuisance to the neighborhood, and that the noises would be far less than many places of business in the city.</p> <p>J. PI. Dunbar and Clemens answered, averring the agreement to improve the mill, the subsequent purchase of the lot by them, and agreement for building set out in Jones’s answer; also, that expensive arrangements for rebuilding had been made. They also set out the character of the building, its security as to fire, &c., as averred in Jones’s answer.</p> <p>Elon Dunbar answered, that he had no interest in the property or business except as a creditor of J. H. Dunbar and Clemens for money loaned to them. He made substantially the same averments as Jones.</p> <p>The plaintiffs put in a general replication.</p> <p>The matter was referred to Samuel C. Perkins, Esq., as examiner and master, who took and reported a large amount of testimony as examiner. Pie concludes an able report as master, as follows :— ~-</p> <p>“ The master is of opinion that the steam planing-mill could hardly, in the common course of things, be used without working mischief to the property of the plaintiffs and other property in the neighborhood — by causing annoyance, inconvenience and discomfort ; by exposing such property to the risk of destruction or damage by fire; and by depreciating its value, and hindering improvements of a class suited to, and such as would naturally seek that locality.</p> <p>“ That other manufacturing establishments and operations of the same or other kinds, not less, or even more dangerous or offensive, are carried on in other parts of this and other cities, affords no excuse. Each case must be decided by itself, under all the circumstances of time, locality, surroundings and the whole nature of the thing.</p> <p>“ Upon the whole case, therefore, the master is of opinion, and' so reports to the court, that the plaintiffs are entitled to the relief prayed for. He therefore reports that the injunction as decreed should be made perpetual.”</p> <p>On the final hearing, upon exceptions of the defendants to the/ master’s report, the injunction was made perpetual, and the defendants directed to pay the costs.</p> <p>The defendants appealed and assigned for error the decree at Nisi Prius.'</p>

<p>1. It is the duty of courts to hear and determine according to law; beyond this the only express power to interfere in regard to convict* is the pardoning power exclusively in the hands of the executive.</p> <p>2. In the exercise of judicial power there are many things inherent in the courts and exercisable without having been conferred by statute, necessarily resulting from their own rules and uniform practice.</p> <p>3. Practice is the form, manner and order of conducting and carrying out suits or prosecutions in the courts through their various stages according to the principles of law and the rules laid down by the respective courts.</p> <p>4. A custom to have the effect of law must have its origin from “ time whereof the memory of man runneth not to the contrary.”</p> <p>5. The practice of courts may be established without written rules as its foundation, in some cases in a shorter period.</p> <p>6. Customs become law from immemorial and universal acquiescence either in a neighborhood or in the entire community to be affected.</p> <p>7. The criminal courts of this state have not power when sentence is passed to enter a rule to reconsider their judgment and at a subsequent term alter the sentence.</p> <p>8. Prisoners tried within the last four days of the term, cannot he deprived of their legal right to the allotted period to prepare and make their motion for a new trial. If the term ends too soon for this, motions may be made within an allotted period after the commencement of the succeeding term.</p> <p>9. The court has power to remand and hold convicts for sentence as long as may be deemed necessary and advantageous to the ends of justice, and in the mean time may receive additional information as to what should be an appropriate sentence, where the court has discretion.</p> <p>10. The convict has no right to be heard by the judge or court after sentence, especially after the term. He must resort to the executive.</p>

<p>1. The defendants agreed to build a railroad communicating with the plaintiffs’ mines, and to furnish the plaintiffs “ the same transportation facilities and charge them the same price per ton for coal as they may or shall at the same time charge for tolls and transportation,” &o., between other named points. The plaintiffs in consideration agreed to furnish the defendants all the coal they should mine to the amount of 1,000,000 tons, and not less than 600,000 tons in eight years, and pay to the defendants 2£ cents per ton till the sum should reach §9000, as security for their covenants. This was a covenant by the defendants to receive and transport all the coal the plaintiffs should mine and offer to them for transportation, not exceeding the contract limit; and to do this in the same manner and with the same diligence they should do for others, but not limited in quantity by the proportion of others: Agnew, J., at Nisi Prius.</p> <p>* 2. As to that which is not expressed in a contract but must be implied, such as the time, manner and quantity of coal delivered, the law fixes a reasonable measure of performance which is to be regulated by the usual course of business: Id.</p> <p>3. The plaintiffs while pursuing their mining operations in a reasonable and proper manner were entitled to transportation for all the coal they mined and offered: Id.</p> <p>4. If parties mutually adopt a mode of performing their contract, differing from its strict terms, or if they mutually relax its terms by adopting a loose mode of executing it, neither can go back on the past and insist upon a breach because it was not fulfilled according to the letter. He may require a return to the terms in future: Id.</p> <p>5. As there was no general market of sale for coal at the point of delivery, the measure of damages would be the price of coal in the market of sale, less the expense of putting the coal into market from the point of delivery, and the cost of mining and preparing the coal and transporting it to the point of delivery: Id.</p> <p>6. If the defendants by refusing to furnish transportation, compelled the plaintiffs to desist from mining up to their reasonable production capacity, damages might be allowed for what would be the loss they suffered on the reasonable amount they were in due course mining: Id.</p> <p>7. Proof of a motive to unfairness corroborates the proof of unfairness, and renders it more credible: Id.</p> <p>8. In mutual contracts one part is not to be abrogated or impaired by another, when that has an appropriate meaning which satisfies the words.</p> <p>9. Examination and construction of a contract with mutual covenants for furnishing and transporting coal.</p>

339, to January Term 1867. Tbis was an action of assumpsit, commenced June 3d 1865, by Christian D. Fricke against Martin Ganzer, Frederick Fisher and John Conrad, trading as M. Ganzer & Co. The claim was for fitting up an establishment on the Germantown Road, Philadelphia, as a restaurant and summer garden. There seemed to be no dispute as to the work having been done, nor as to the propriety of the charge.

298, t,o January Term 1867. This was an ejectment, in which Herman Halo and Edward Stieglitz were plaintiffs, and Charles Schick was defendant.

140, to July Term 1867. Hugh Boyd commenced an action of ejectment, to March Term 1866, against Joseph Caldwell and Thomas Riddle, for a house and lot in Lingo street, Philadelphia. Caldwell was tenant of the premises under Riddle, the landlord, who defended. The premises had been conveyed by Boyd to Riddle on the 23d of March 1865.

<p>Error to the District Court of Philadelphia: No. 445, to January Term 1867.</p> <p>This was an action of assumpsit, brought October 17th 1866, by Jacob D. Heft against William Anspach and M. II. Stanton, trading as Anspach & Stanton, to recover internal revenue duties paid by the plaintiff on goods manufactured and sold by him to the defendants. »</p> <p>By a written contract the plaintiff agreed to deliver to the defendants 60,000 yards of cloth, 46,000 yards of which were to be delivered in and before the month of June 1864; there was a deficiency' of delivery in June to the amount of 11,627 yards, which was filled up in July and August, and the goods paid for by the defendants.</p> <p>The Act of Congress of June 30th 1864, § 97, 2 Bright. U. S. Dig. p. 248, pi. 186, enacts “ That every person, firm or corporation, who shall have made any contract prior to the passage of this act, and without other provisions therein, for the payment of duties impose.d by law, enacted subsequent thereto, upon articles to be delivered under such contracts, is hereby authorized and empowered to add to the price thereof so much money as- will be equivalent to the duty so subsequently imposed on said articles, and not previously paid by vendees, and shall be entitled by virtue hereof, to be paid and to sue, and recover the same accordingly.”</p> <p>The plaintiff paid the tax under this act on .the goods delivered after June 30th, and brought suit for the additional taxes. The defendants resisted the payment on all except the 4000 yards which were to be delivered after the 30th of June.</p> <p>The court (Sharswood, P. J.) charged:—</p> <p>“ So far as this case is concerned, the plaintiff is entitled to recover for the extra duty paid on all articles delivered subsequently to June 30th 1864, and accepted by defendants under the contract of March 1864.”</p> <p>The verdict was for the plaintiff for $371.75, and the defendants took a writ of error, assigning the charge of the court for error.</p>

434, to January Term 1867. This was a suit before an alderman, by John S. Hopkins against Wallace Lippincott and Mary Ann his wife. A judgment for $49.85 was obtained, and the plaintiff in error appealed. That appeal was tried in the Common Pleas, and a verdict had for the plaintiff below. The narr. contained numerous counts.

330, to January Term 1867. The proceedings in the court below were the distribution of the proceeds of a sheriff’s sale under a levari facias, by Isabella B. Thomas, assignee, against Samuel H. Jarden and the terretenant. On the 2d of July 1857, David B. Birney became the owner of an unimproved lot of ground at the corner of Twenty-third and Coates streets, Philadelphia.

This was an action by Mary A. Butler and Samuel H. McCoy, guardians of four minor children of William Butler, deceased, against The Pennsylvania Railroad Company, for negligence in causing the death of the deceased. The suit was brought in Mifflin county to May Term 1866, and certified to Snyder county, where it was entered as of February Term 1867.

<p>1. In an action for injury to the plaintiff whilst on the defendants’ cars by collision with another train, evidence of the habits and competency of the conductor of the latter train is pertinent.</p> <p>2. W hen a habit of intoxication in a conductor is shown, it raises a presumption of negligence in case of accident.</p> <p>3. Evidence of statements by a flagman as to how far he had gone back to flag a coming train was inadmissible.</p> <p>4. What an agent says while acting within the scope of his authority is admissible against his principal as part of the res gestee, but not statements made by him at any other time.</p> <p>5. Declarations by officers of a corporation rest upon the same principles as apply to other agents.</p> <p>6. In an action for injury by negligence, evidence of the number of the plaintiff’s family, his habits, industry and economy is inadmissible.</p> <p>7. That the plaintiff was riding on an employee’s pass was a presumptive admission by him that he was a servant of the company.</p> <p>8. After stating certain rules as to the measure of damages the court said: “ These we think would be fair rules to ascertain the measure of damages the plaintiff would be entitled to in this case; but if you can find any better ones than those suggested, you are at liberty to adopt them, as the measure and amount of damages are entirely for you to ascertain, under all the evidence and circumstances in the case.” Held to be error.</p> <p>9. In a suit by the party injured, the damages may include a reasonable compensation for suffering, expense of medical attendance and loss of time from confinement, but unless the injury has been wantonly inflicted, the damages must be strictly compensatory.</p> <p>10. Every one riding in a railroad car is presumed to be there lawfully as a passenger, and the onus is on the carrier to prove that he is a trespasser.</p>

348, to January Term 1867. This was a feigned issue under the Sheriff’s Interpleader Act, ’in which Bobert Patterson was the plaintiff, and T. Charlton, Henry and Thomas Stillman, trading as Henry & Co., were the defendants. The property, the subject of the claim, had been sold by the sheriff as the property of Isaac B. Hughes.

This appeal was taken by Christian Koenig, trustee of Ann Smith, under the will of John Rickenbach, deceased. The decedent by his will, dated September 24th 1845, and proved June 25th 1845, directed his personal and real estate to be converted into money, and further provided as follows:— “ 5. It is my will that the proceeds of my real estate and personal property shall be equally distributed and divided, share and share alike, among all my children or their heirs.

Joseph Shomo died intestate May 16th 1867, leaving a widow, M^ry Shomo, and eight children, of whom John P. Shomo, Charles M. Shomo and a daughter were children of a former wife, and William D. Shomo, Joseph M. Shomo, Harrison Shomo and two daughters were children of his widow. The names of the sons are given above in the order of their ages.

<p>1. A mortgage on land was given by one to secure the payment of notes given by another at their maturity. When the notes fell due they were taken up and others given to the mortgagees. Held, that the mortgage was not security for the renewal notes.</p> <p>2. The principal had given a mortgage on a vessel to the mortgagees of the land. The mortgagor in the first mortgage seized the vessel under an execution against the principal. In a contest between the mortgagee of the vessel and the first mortgagor as to the title to the vessel, the latter called his principal as a witness; in his examination he stated that the land was mortgaged to secure a note which was a final renewal of the original notes. Held, that the mortgagor of the land was not estopped from alleging that his mortgage was satisfied.</p> <p>3. An estoppel in equity arises from some act or declaration of one party causing or at least attempting an injury to another-.</p> <p>4. A creditor may hold an unlimited number of collaterals, and avail himself of any as long as the debt is unpaid.</p> <p>5. A party who calls a witness is not estopped by a statement by the witness which is immaterial to the issue and which cannot aifect the result.</p>

176, to January Term 1868. This was an action of trover, brought February 13th 1860, against John M. Yeager by Henry E. Wallace, receiver, &c., of Yeager & De Hart; it was afterwards amended so as to stand John M. Yeager, Jr., and Abraham De Hart, lately trading as Yeager & De Hart, to the use of Henry E. Wallace, receiver, &c., of the partnership, plaintiffs, and John M. Yeager, defendant.

128, to July Term 1867. On the 11th of November the executors, &c., of Robert M. Thomas, deceased, conveyed a lot of ground in Germantown to Hannah G. Attmore, wife of John Attmore, “ to have and to hold the same to the only proper use and benefit of the said Hannah G. Attmore, her heirs and assigns for ever, in the same manner, and as fully and effectually to her own separate use, benefit and behoof, as though she were single and unmarried.

117 and 178, to January Term 1868. These were two writs of error in the same case argued together. In the court below, an action on the case was brought on the 22d of November 1866, by Julia A. Willard, widow, and the minor children of Charles T. Willard, deceased, against George N. Tatham and others, trading as Tatham & Brothers, and Franklin Allen and Joseph Allen, trading as Franklin Allen & Bro.

<p>1. A devise of a house, &c., to two sons “and their heirs respectively”— “The said house, &c., to be held by them, my two sons, in ‘joint tenure,’ during the residue of their natural lives, and at their decease to pass to their heirs respectively. Should either of them decease without leaving lawful issue or heir, said estate shall pass to the survivor and his heirs, and should they both decease without leaving lawful surviving heir or heirs, said estate may be sold and the proceeds of such sale be distributed amongst the surviving lawful heirs to my estate, share and share alike.” Held, that the ultimate limitation is an executory devise.</p> <p>2. The'estate taken by the sons was a base fee and the limitation over was not too remote, as it must take effect, if at all, within a life or lives in being; the words “ leaving lawful issue surviving” meaning lawful issue living beyond the death of the first taker.</p> <p>3. The Act of 27th April 1855 (Estates Tail), practically makes the statute de donis inoperative, and remits us to the common law as it was before that statute.</p> <p>4. The Act of 1855 has no effect on executory devises. The words in the act, “ shall be inheritable and freely alienable” are surplusage.</p>

223, to January Term 1867. This was an action of ejectment brought by the Farmers’ and Mechanics’ National Bank against the Girard Life Insurance, Annuity and Trust Company, for the one undivided third part of certain property on Market street below Eighteenth street, Philadelphia. Prior to and at the 4th of January 1849, the title to the whole premises was vested in Paul D. Geisse, Anna Maria Everly and Augustus Henry Geisse, as tenants in common.

115, to January Term 1868. This was an action on the case, by Jacob Hamsher against William O. Kline, commenced December 1st 1860.

54, to July Term 1867. This was an action commenced before a justice of the peace by John Williams against Charles PI. Bennett. The plaintiff appealed from the judgment of the justice and filed his appeal in the Court of Common Pleas, October 26th 1864. The plaintiff entered a rule to take the depositions of witnesses. A rule of court in Susquehanna county requires that all depositions taken under the rule shall be filed within a reasonable time in the prothonotary’s office.

<p>Error to the Court of Common Pleas of Susquehanna county: No. 6, to January Term 1868.</p> <p>This was an action of trespass quare clausum fregit, commenced March 19th 1866, by Jeremiah D. Wilbur against Henry H. Roe.</p> <p>The plaintiff gave in evidence a warrant dated March 3d 1851, to Allen Gage, for 38 acres and 87 perches in Liberty township, adjoining amongst others N. Marvin on the east; — patent to Gage dated May 14th 1857, and deed to plaintiff dated April 12th 1854, for the tract surveyed under the warrant. He also gave evidence of the entry by the defendant on the tract, and cutting trees by him.</p> <p>The defendant gave evidence that Nathan Marvin, some twenty-eight years before, had a clearing of 20 or 25 acres and a house on the lot. Roe bought of Marvin in 1854 or 1855. Silas Benedict and D. O. Marvin, witnesses called by the defendant, testified, on cross-examination, that Marvin and the defendant claimed that they were on the lands for which Biddle was agent, under a contract with Drinker. John Boyle, also a witness for defendant, testified that he made a survey for a lot in1 Liberty in the name of Nathan Marvin, on lands known as the Nicholas Biddle lands.</p> <p>The evidence of the defendant showed that Marvin, when in possession of the improvement, had used the locus in quo, which was woodland, within Gage’s warrant, as farmers usually use their woodland, and with a marked line around his whole lot.</p> <p>The court (H. W. Williams, A. J., of the Fourth District) charged:—</p> <p>“ The position of the defendant, that possession is necessary to support trespass for an injury to land, is well taken; but this possession may be either actual, as by residence or enclosure and cultivation, or it may be constructive. The law tacks the possession of unseated or wild land to the title, so that the real owner, whoever he may be, is esteemed to be constructively in possession. By virtue of such possession, he may maintain this form of action. The question in this case then is, had the plaintiff either actual or constructive possession as against the defendant of the land in question? The evidence shows that some twenty-eight or twenty-nine years ago, one Nathan Marvin entered upon a tract of land in Liberty township, defined its boundaries, made an improvement of some 20 to 30 acres, and built a house and log-barn thereon. In 1851, while Marvin was in possession of this lot of land, using the woodland adjacent to his cleared land as farmers usually use their woodland, and with a marked line around his whole lot, Allen Grage procured a warrant from the Commonwealth for 40 acres of the woodland embraced within Marvin’s lines. This warrant was located in March 1851, and soon after, the Commonwealth, by her patent, conveyed her title to this 40 acres to Grage. Marvin sold to defendant in 1854, and about the same time Grage sold the land embraced in his warrant to the plaintiff.</p> <p>“ The defendant claims that by virtue of his residence and improvement maintained by himself, and those under whom he claims for many years, he was in the actual possession of all the land included within his lines; and that such actual adverse possession ousts the presumptive or constructive possession which the law tacks to title. This proposition would correctly express the rule of law as we understand it, if Marvin’s whole claim had been made upon appropriated land, and his clearing and cultivation had been upon the same warrant with his woodland. But by the evidence in this case it appears that a portion of the land embraced within his lines was actually vacant. The defendant’s surveyor who located the warrant so testifies. As to this, under the well-known rule, he could never, by mere lapse of time, have acquired title. No matter how great his improvements, or how long-continued his residence, the title of the Commonwealth would not have been divested. In 1851, then, when Grage’s warrant was located, this vacant land was embraced by the .lines of Marvin, and constituted part of his woodland. When the warrant was located, there had been no enclosure of any part of this land by Marvin, except by lines — no cultivation, no clearing. There has never been such clearing or cultivation since. Nothing has occurred to challenge the right of Grage or his vendee. No invasion, actual, hostile or open, of his constructive possession has taken place. The evidence shows the occasional cutting of wood, rails, &c., on this part of the- woodland originally claimed hy Marvin, but no such permanent, open and adverse use or possession of it as would oust the possession of the owner under the warrant to Gage. [It follows, then, that the plaintiff was in possession by virtue of his title of this woodland; that being so in possession, this action is properly brought to redress any injury or trespass committed within his lines, and that your duties in this case are reduced to a computation of damages for such trespass as the evidence discloses].”</p> <p>The verdict was for the plaintiff for $13.50.</p> <p>The defendant took a writ of error, and assigned' for error the part of the charge in brackets.</p>

88, to January Term 1868. This was an action of ejectment, by Augustus Lewis against Davis D. Brewster, for 12 acres of land in Wyalusing township. The writ was issued May 30th 1865, It appeared that the plaintiff obtained a judgment against the defendant on the 25th of August 1862 for $5111.57, under which the interest of the defendant in the land in question was. sold by the sheriff to the plaintiff, and a deed made to him September 8th 1864.

230, to January Term 1868. This was an attachment-execution, issued May 12th 1866, by J. M. Poor & Mills against Thomas Kelly, in which Floyd Col-burn, Joseph P. Colburn and Peter Summers were garnishees.

126, to January Term 1868. This was an action on the case, commenced December 28th 1861, by Philo Griffin against The Wellsborough and Tioga Plank-Road Company. The plaintiff having died, his administrators Jane Griffin and Roswell Ackley were substituted.

<p>1. A question in a ease was whether an agent of the defendants had cut slash-boards on a dam. Evidence had been given that he had been seen on the dam about the time they had been cut. His declarations that he intended to cut the dam, although made at a different time, were evidence in corroboration against the principal.</p> <p>2. It had been testified that Grinnell had been seen on the dam at a particular time. He testified that he then had been in the employment of Dickinson. It was proper for Dickinson to state that from entries in his book in his own handwriting, he believed Grinnell had worked for him then.</p>

332, to January Term 1868. This was a foreign attachment in covenant, issued November 3d 1865, by R. S. Dean against Enos Shelly and Amanda M. Shelly his wife. The case was this :— Dean owned a farm in Susquehanna county, and Shelly claimed to own lands in Mahaska county, Iowa. . On the 24th of July 1862 the plaintiff sold his farm to Enos Shelly for $1900, and in part payment took Shelly’s land in Iowa.

379, to January Term 1867. This was a feigned issue between Serena Kline, plaintiff, and Welch & Co., Joseph Keller, George Roth and Benjamin Weider, defendants, under the Sheriff’s Interpleader Act, to try whether certain goods taken under executions at the suit of the defendants against Solomon Kline were the property of Serena Kline, who was the wife of Solomon.

152, to January Term 1868. This was an action originally brought before a justice of the peace by Jacob Grim against the School Directors of Weissenberg township, to recover tax which had been paid by him to the collector of the township under protest, and which he alleged had been illegally assessed. The assessment of the tax against the plaintiff for the year 1863 was on a valuation of $1460, which was the valuation made by the county commissioners for that township.

459, to January Term 1867. This was a feigned issue, between John A. Greup, plaintiff, and Tobias Haycock and Elias Frederick, administrators, &c., of Peter Shive, deceased.

90, to January Term 1868. In tbe court below tbis was a prosecution against Levi Haas, for obtaining money on false pretences. Tbe prosecution was commenced on an information before a justice of tbe peace, made March 7th 1867, that tbe defendant in May 1865 bad obtained from tbe prosecutor $9000 by false pretences. Tbe grand jury, September 11th 1867, returned tbe bill on tbis prosecution a true bill.

148, to January Term 1868. This case came into the Court of Common Pleas by appeal (so called) from the proceedings before two justices of the peace, under the Act of March 21st 1772 (1 Sm. L. 873, Purd. 613), commenced by Gideon Andreas against George Neumoyer and Conrad Seem.

849, to January Term 1868. At the November Sessions 1866 of the Court of Quarter Sessions, the grand jury recommended that a new jail for the county be built, which the court approved, ordered to be filed and recorded, a copy given to the county commissioners and published.

333, to January Term 1868. This was an action of ejectment, by Reuben Fisher and Mary his wife in her right, against George Ackerman and John Ackerman, for a messuage and lot of one acre and a half of land. The writ was issued June 13th 1865. After the suit had been commenced, Mrs. Fisher died, and her heirs were substituted. The premises in question were part of 'a larger lot conveyed to George Ackerman April 4th 1859.

361, to January Term 1868. George Dutch died intestate in February 1867, leaving no widow, but leaving four children, George F. Dutch, Sarah R. Lewis, Rosamond R. Wendell, the wife of William M. Wendell, and Emma Baxter, the wife of Richard Baxter.

<p>Appeal from the Court of Common Pleas of Northampton coimty: In Equity: No. 863, to January Term 1868.</p> <p>This proceeding was commenced by bill filed May 18th 1867, by Solomon Dech against John Seem, for the specific performance of a contract made November 20th 1866, by which it was agreed that—</p> <p>“ The said Solomon Dech, for the consideration hereinafter mentioned, doth covenant and agree with the said John Seem, his heirs and assigns, by these presents, that he the said Solomon Dech shall and will on or before the 1st day of April 1867, at the proper cost and charge of both parties, by such deed of conveyance as he or they or his or their counsel learned in the law shall advise, well and sufficiently grant, convey and assure unto the said John Seem, his heirs and assigns, in fee simple, clear of all encumbrance, all the undivided one-half of all that three-story mill, &c., * * together with all the personal property belonging to the said Dech, or his share thereof now on the premises;” Seem to pay to “ Dech $5600, $2000 on the 1st day of April 1867, and for the balance give bond secured by mortgage on the premises payable with interest one year after date.”</p> <p>The plaintiff averred the tender of a proper deed, and that Seem refused to receive it and comply with his contract. He prayed that Seem might'be compelled to comply specifically with his contract; and for general relief.</p> <p>The defendant answered, averring that the plaintiff had been engaged in business at the mill with B. Gr. Unangst, in manufacturing and selling flour, &e., as a partner, under the firm of Unangst & Dech; that the parties, on the 26th of March 1867, went together to the office of Mr. Fox, the plaintiff’s solicitor, and were advised by him that the plaintiff could not give the defendant a perfect title, because the premises were in the exclusive possession of Simon Frederick, who claimed to hold them to the exclusion of the plaintiff and refused to admit either plaintiff or defendant into possession ; that Mr. Fox also advised that litigation would be necessary to obtain possession, &c., and told the defendant that there was no use of buying a lawsuit; that at the date of the agreement it was expressly understood that the defendant was to have undisturbed possession on the 1st of April 1867, which stipulation was omitted by tbe mistake of tbe scrivener; that the defendant, upon being informed at the office of Mr. Fox that he could not obtain possession, declined to take the property unless he could obtain possession as agreed on, and it was then agreed that the contract should be rescinded; that Frederick was in posséssion of both real and personal estate, and positively refused to deliver them either to plaintiff or defendant, and the plaintiff was therefore unable and did not deliver them to the defendant at any time; that a bill in equity is pending between the plaintiff and Unangst to settle their partnership accounts, &c., in which the rights as to the personal “ and possibly” the real estate will be determined; that on the 1st of April 1867 the plaintiff tendered a deed, from which the articles of personal property were omitted, nor did the deed convey the property clear of encumbrances, inasmuch as it was encumbered by Frederick’s possession and claim; that the plaintiff refused to allow the solicitor of the defendant to examine the deed; that the plaintiff was never ready nor able to perform his part of the contract.</p> <p>Testimony was taken by an examiner, but no master was appointed.</p> <p>A. Getz, a witness for plaintiff, testified that the plaintiff, tendered a deed to the defendant, who said he had the money ready for him, and asked plaintiff for possession; plaintiff said, “ I have tendered you what I promised.” On cross-examination, the witness said that the defendant wished to have the deed to exhibit it to his counsel; that the plaintiff did not give him the deed.</p> <p>For the defendant:—</p> <p>Joseph Dech testified that by plaintiff’s direction he went to the mill to see Frederick, who said neither the plaintiff nor Unangst could give a good title; Frederick denounced defendant as dishonest ; said he could not sit there or “ keep a man there to watch him to see if he stole all or half;” said he would have nothing to do with defendant.</p> <p>G. Ziegenfuss testified: “ Seem and Dech were at my office April 1st 1867. Mr. Dech tendered a deed to Mr. Seem. Mr. Seem had a mortgage drawn, and had $2000 in checks and greenbacks. Mr. Seem told Dech that if he would go with him to his, Seem’s, counsel, and the deed was such as he would approve of, he would pay him; Seem asked Dech if he could or would give him possession. Dech said-he did not promise to give him possession; that he sold him the property as it was. Seem said, that if he would give him such a deed and possession of the property, Dech should name any hour and place that day, and he would meet him, and get the checks turned into money in an hour’s time, if he would say so; Dech did not object to the checks, but said he had offered all he intended or promised; Dech said he had nothing to do with Seem’s counsel. He did not agree to have the deed exhibited to counsel.”</p> <p>S. Seem was present on the occasion spoken of by Ziegenfuss, and his testimony was about the same.</p> <p>J. R. Biery testified that the defendant came to the mill three times; Frederick said the plaintiff had no right to sell so long as he and Unangst were at law; that he could not give a good deed nor give possession as long as he, Frederick, was there; and that he would not give possession to anybody.</p> <p>Frederick testified that he had bought half of the mill from Unangst in May 1866 ; that the mill was in bad repair; that he called plaintiff to help make repairs; he refused to make any, or pay any of the expense — “ the mill might rot down for him;” the witness testified that he had made a large amount of repairs, and specified them; plaintiff never paid for any part of the repairs; witness told defendant he did not want to take any partner, and would rather take the plaintiff than him; witness said that the personal property had been sold to him by Unangst.</p> <p>There was evidence also that Seem, who was a miller, wished possession, to get back to his old business.</p> <p>The defendant gave in evidence this letter:—</p> <p>“ Catasauqua, March 18th 1867.</p> <p>“ Mr. John Seem:</p> <p>“Brother, Joseph Dech will talk to Simon Frederick in the forenoon, and in the afternoon will be the time for you to talk to him, I think it will be best for you to go alone, if I will go with you I am afraid we can do nothing, the renting is of your own business, so I think you will succeed, if not let me know then we will go together, or I will go alone just as you think, write immediately.</p> <p>“Yours, &c.,</p> <p>“Solomon Djsoh.”</p> <p>■In the plaintiff’s hill in his suit against Unangst, he charged that Unangst had sold the partnership property, or the greater part of it, and applied the proceeds to his own use.</p> <p>The Court of Common Pleas dismissed the bill at the plaintiff’s cost. He appealed, and assigned this decree for error.</p>

The proceeding in this case was a bill in equity by Peter S. Michler against The Farmers’ and Mechanics’ Bank of Easton, filed February 11th 1865. The plaintiff died after the answer had been filed and an examiner appointed, and on the 12th of November 1866, Thomas D. Conyngham, his administrator, was substituted.

456, to January Term 1868. *' This was an action of assumpsit, brought November 2d 1865, by J. W. Allen against M. J. Flynn, to recover the price of two bonds, issued by the township of Jackson to Flynn, and sold by him to Allen, which Allen alleged were not binding on the township, and were therefore of no value.

64, to January Term 1868. This was an action on the case by Darius Mead against Thomas Newbold and Sarah D. J. Newbold his wife. The writ was issued July 6th 1866.

Pleas of Warren county: No. 89, to January Term 1868. In the court below, Kate B. Roberts, administratrix, &c., of J. L. Roberts, deceased, brought an action of assumpsit against Sterling Holcomb, Jr. The writ was issued May 12th 1866. In the spring of 1863, Roberts, the decedent, bought of Holcomb “the oak timber on lot No. 135, in Pittsfield township,” and paid for it.

232, to January Term 1868. This was an application and complaint made to two justices of the peace on the 6th of July 1867, by the overseers of Bradford township to remove Neely Green, a pauper, to Goshen township. On the 12th of July, the justices decided that Goshen township was the last place of the pauper’s residence and granted an order to remove him there. On the same day, Goshen township appealed to the Court of Quarter Sessions.

<p>Appeal from the Court of Common Pleas of Delaware county: No. 353, to January Term 1867.</p> <p>This was a proceeding for the distribution of the proceeds of the. sale of the real estate of Charles L. Powell and Joseph Campbell, trading as Powell & Campbell, sold by the sheriff in August 1865.</p> <p>The amount of money brought into court for distribution was $4675.50. There were a number of judgment-creditors of Powell & Campbell who asked to be paid their respective claims out of the fund in court, and who also appeared before the auditor and presented their claims. Edward A. Price, Esq., was appointed auditor to report distribution.</p> <p>On the 8th of April 1865 a judgment was entered in the Court of Common Pleas of Delaware county in favor of Henry L. Powell against Powell & Campbell for $5500, which on the same day was marked to the use of Joseph W. Souder. It was admitted that the whole fund in court should be appropriated to this judgment. It was claimed, however, by John Lancaster, that part of the ■consideration of the bond on which the judgment had been entered was two notes, drawn by Powell & Campbell, endorsed by H. L. Powell, and held by Lancaster, one for $1260.44, due March 28th 1865, the other for $1493.20, due April 24th 1865. Lancaster alleged that the last note was made for H. L. Powell’s accommodation ; that as it was approaching maturity, H. L. Powell found he would not be able to meet it, and upon a conference between Powell & Campbell, H. L. Powell and Lancaster, it was agreed that the firm should give the bond on which this judgment was entered, and by it the two notes held by Lancaster should be taken up.</p> <p>Souder denied these allegations, and asserted that the sum for which the bond was given was made up entirely of the indebtedness of the firm to II. L. Powell.</p> <p>Much evidence, which was altogether conflicting, was heard by the auditor. He rep'orted the facts very fully, and returned the evidence with his report, by which he sustained the allegations of Lancaster, and, after deducting the expenses of audit, he awarded to Lancaster $2814.22, and to Souder $1732.18.</p> <p>Souder filed exceptions to the report for awarding any part of the fund to Lancaster.</p> <p>On the coming in of the report, Souder asked for an issue to try whether the bond to H. L. Powell was taken by him on condition that he would take up the notes held by Lancaster.</p> <p>The court below (Butler, P. J.) denied the issue, overruled the exceptions after an elaborate examination and discussion of the facts and the law applicable to them, and decreed distribution in accordance with the report of the auditor.</p> <p>The part of the opinion relating to the issue is as follows:—</p> <p>“ Mr. Souder is not entitled to an issue. • He entered into a protracted controversy before the auditor about the same matter which he now asks to have submitted to a jury. When the contest arose he -might have requested the auditor to suspend proceedings ; and had he done so, and then applied for an issue, he would have been entitled to it. But he chose to take his chances before the auditor, and his application is now too late. He need not have submitted his case to that tribunal, but he elected to do so, and must abide the result, except in so far as he may have relief on his appeal to the court. I consider this decided by Bradford’s Appeal, 5 Casey 513, and Sipe’s Appeal, 2 Casey 176. The first of these cases, it is true, was in the Orphans’ Court. But I do not think this materially weakens the authority. An issue there is matter of right, if applied for in time and under proper circumstances; and a refusal to grant it is subject to review above. The principle is again recognised in Benson’s Appeal, 12 Wright 159. The application was there held to be in time. But the court shows that a party is not entitled to an issue under all circumstances. And this rule seems to be entirely reasonable. Why should a party have the opportunity of two trials ? The auditor is appointed to hear the parties and decide the facts. He sits in the place of the court. The parties need not, however, go to trial before him. They can have a different tribunal if they desire it. But if they do go before him and submit their case to his decision, they should be regarded as waiving the right to a trial elsewhere. A different rule, to say the least, would lead to unnecessary vexation, delay and expense.”</p> <p>Afterwards, on the application of Souder, the court allowed him to take out of court the portion of the fund which had been awarded to him by the auditor. It was accordingly paid to Mm by the prothonotary.</p> <p>Souder appealed to the Supreme court, and assigned for error the refusal to direct an issue, and in awarding any part of the sum to Lancaster.</p>

Appeals from the Orphans’ Court of Philadelphia; No. 323, to January Term 1867. These ivere appeals from the decree of distribution of estate of Mary Ann Bacon, deceased: One by the executors and George W. Bacon, Harriet II. Price and Fanny E. Bacon, grandchildren of the decedent; the other by Anne E. Bacon and others, minor children of Joseph K. Bacon, another grandchild of the decedent.