Volume 58 — Pennsylvania State Reports

William Drum was charged in the Court of Quarter Sessions of Westmoreland county for the murder of David Mohigan. A true hill having been found by the grand jury of that court, it was certified into the Court of Oyer and Terminer of the same county.

142, to July Term 1867. This was an amicable action of assumpsit to December Term 1866, in which John Clemens was plaintiff and Isaac R. Benners, survivor of the firm of Isaac R. Benners & Co., defendant. The claim was for a balance due by defendant on an invoice of fruit, contracted for in England and shipped to defendant to New York. The whole amount of the shipment was $2967.85, which was reduced to $896.95 by quercitron bark shipped to plaintiff.

<p>1. A demurrer, whether special or general, puts the whole record before the court, and judgment must be rendered against the party who has first failed in pleading.</p> <p>2. It is no cause of forfeiture of a charter from Pennsylvania that the same corporation has obtained a charter from another state.</p> <p>3. A corporation chartered by one state cannot transfer its allegiance by accepting a charter from another. It does not thus throw off its original obligation, nor can it shelter itself under its new relation from any violation of its duties under its old one.</p> <p>4. All the rights of the Commonwealth against her own corporation will be enforced, without regard to immunities claimed from process beyond her territories and within the jurisdiction of another state.</p> <p>5. A corporation which undertakes to drag its sovereign to a foreign examination, before the bar of the tribunals of another state, violates its first and paramount duty and subjects itself to the extremest consequences.</p> <p>6. The Circuit Court of the United States is not the court of another sovereign to one of the states.</p> <p>7. A Pennsylvania corporation was incorporated also by Maryland, and as a Maryland corporation commenced suit against the Pennsylvania corporation to declare an Act of Assembly void. Held, that the corporation violated no duty to Pennsylvania.</p> <p>8. No mere intention of a corporation to violate its duty is a cause of forfeiture.</p> <p>9. Construction of the various Acts of Assembly relating to the Pittsburg and Connellsville Railroad Company.</p> <p>10. The power of the legislature of Pennsylvania in grants and contracts is limited and restrained by the Federal and State Constitutions, so that it cannot impair contracts made either by itself or others.</p> <p>11. The legislature is not the final judge of whether the casus judicis, upon which the authority to repeal a charter is based, has accrued.</p> <p>12. Although it is not necessary that compensation should be actually ascertained and paid before property can be appropriated to public use, yet an adequate remedy must be provided by which it may be obtained without unreasonable delay.</p>

Dr. Benjamin Thompson filed a bill against Dr. John R. McClurg, averring as follows: That the defendant, being a practising physician at Chandlerville, Chester county, agreed, on the 22d of January 1859, with the plaintiff to sell him his office fixtures and furniture, &c., with his good-will in his profession, for $125, and bound himself to remove not less than twelve miles from the place, and never thereafter to establish himself as a physician within twelve miles without…

184, to January Term, >1868. In the court below the proceedings were for the distribution of the estate of Edith Jones, deceased, in the hands of her administrator, appearing by his account,… Held: which found the foregoing facts, and that her estate had not escheated to the Commonwealth.

52, to January Term 1868. On the 28th of May 1866, viewers were appointed on a petition for a road, “ to begin at the point of intersection of two public roads known respectively as Gray’s Lane and Anderson’s Lane, and to end in the old Lancaster road at a point between the corners of lands of Lewis Warner and William G. Lesher, and the private lane on land of the late Dr. Joseph Anderson.” On the 22d of August, the viewers reported laying out the road prayed for, which was…

<p>1. A judgment entered upon a bond not stamped is not void, and if erroneous, can be reached only by the defendant not by a creditor.</p> <p>2. An assignee for the benefit of creditors takes the debtor’s estate as a volunteer, his title must give way to a judgment, and unless by charging fraud, he cannot intervene to stay rightful proceedings on the judgment.</p>

<p>1. A firm confessed judgment to three creditors for themselves and in trust for other creditors; personal property of the firm was sold by the sheriff under the judgment, and bought by the plaintiffs : the firm then sold property to another which was claimed to have been sold under the judgment. In trover by the first against the second vendee, one of the firm was not a competent witness.</p> <p>2. The second vendee was lessor of the debtor and the goods in contest were on the premises; notice to the sheriff by the lessor’s attorney that he claimed rent out of the proceeds of sale was evidence that the lessor had notice of the sale.</p> <p>3. A plaintiff may, if he pleases, with the court’s permission, anticipate a defendant’s case and defeat it.</p> <p>4. The court may, in their discretion, regulate the order in which evidence shall be given.</p> <p>5. To constitute a good levy the personal property levied on should be in the power, or, at least, in the view of the officer, at the time it is made.</p> <p>6. The meaning of a term or name given to any particular class of objects or property in a trade or business, may be proved by persons engaged in such trade or business, when that term or name is used in a contract, whether verbal or written.</p> <p>7. An agent having received possession of a chattel for his principal is not bound to deliver it to the true owner, and a refusal by him thus explained, is not evidence of conversion ; but he is bound to prove the explanation.</p> <p>8. The taking of the property of one by assignment from another who has no authority to dispose of it is a conversion.</p> <p>9. Where a partnership is carried on by two different firm names, -a judgment against either firm will support an execution against the partnership effects, and a sale under it will pass the title of all the partners.</p> <p>10. In a suit against a firm the non-joinder of dormant partners as defendants cannot be pleaded even in abatement.</p> <p>11. Under a judgment against the ostensible partners in the firm name the interest of the partners not named will pass to the sheriff’s vendee.</p> <p>12. In trover the court, after stating the ordinary rule as to the measure of damages, added: “ but the jury are justifiable in going further when there has been an outrage in the taking, or vexation and oppression in the detention as a compensation to the party injured.” There was nothing in the case to justify the jury in applying any but the ordinary rule. Held, to be error.</p>

<p>Appeal from the decree of the Court of Common Pleas of SchuylMll county: in the matter of the distribution of the proceeds of the- sheriff’s sale of the property of John Burnish & Co.</p> <p>Erom the report of the auditor and the testimony reported by him, the following facts appeared:—</p> <p>John Burnish, James Talbot and Thomas W. Yardley were partners, under the firm of John Burnish & Co., in the business of rolling iron in Schuylkill county. On the 30th of November 1854 a mortgage on their real estate to secure the payment of $15,000 had been executed by John Burnish and others, who were the owners of the real estate, to Edward Yardley and Thomas W. Yardley, which was afterwards assigned to Joseph Paxton; this mortgage was the first lien. Another mortgage on the same real estate was executed on the 15th of October 1857, by the individual members of the firm, to Joseph Paxton and others in trust to secure the payment of $53,985.79 due divers creditors of the mortgagors, amongst others the Bloomsburg Irop Company and Eox & Brother. This mortgage was the second lien on the same real estate. A judgment was confessed in June 1859 on this mortgage to the Bloomsburg Iron Company for $36,668.80, the balance due them. At the same time Burnish & Co. and Edward Yardley confessed judgment to the Bloomsburg Iron Company for the same amount as additional security. A note to Eox & Brother for $1269.91, secured by the mortgage, was also unpaid. Charles M. Atkins claimed to be the o.wner of this mortgage by assignment from the iron company and Eox & Brother. Joseph Paxton, the assignee of the first mortgage, having died, his administrators, George Hughes and John Sharpless, obtained judgment upon it, September 27th 1862, for $22,177.50. There were other judgments entered against the firm in favor of Charles M. Atkins for'$18,217.60, Stichter & Thompson for $2000 and Allen Fisher, trustee, &c., for $3900. Writs of fi. fa. Nos. 81, 90 and 91, to March Term 1864, were issued in these three judgments. Under these executions proceedings under the Sheriff’s Interpleader Act were commenced, which do not appear yet to have been concluded.</p> <p>A levari facias, No. 95 to March Term 1864, was issued on the first mortgage, and the land sold to Charles M. Atkins on the 29th of February 1864 for $56,000.</p> <p>A fieri facias, No. 117 to March Term 1864, was issued on the judgment of the Bloomsburg Iron Company; and on the 2d of March 1864 the personal property of the defendants was sold under the four writs of fieri facias, and brought $18,663.68.</p> <p>The following paper was afterwards given to the sheriff:—</p> <p>“ George Hughes et al. ) 95 March Term 1864. v. V Levari facias debt, $22,177.50. John Burnish & Co. J Interest from 27th September 1862.</p> <p>March 7th, directed by plaintiffs’ attorney to collect $16,092.08 and interest,.......2,011.51</p> <p>$18,103.59</p> <p>“ Received, March 21st 1864, of John Raush, sheriff, eighteen thousand one hundred three x%9u dollars in full, above debt and interest.</p> <p>“ $18,103.59. John Bannan, attorney for plaintiff.”</p> <p>On the 30th of March the following paper was given to the sheriff:—</p> <p>“Fox & Bro. and Bloomsburg' Iron Company v. John Burnish, James Talbot and Thomas W. Yardley. Mortgage dated 15th October 1857. Recorded in mortgage-book N, page 406, to Paxton, Repplier et al., in trust.</p> <p>“I acknowledge that Charles M. Atkins, assignee of all the right, title and interest of Fox & Brother and the Bloomsburg Iron Company in a certain mortgage, dated 18th October, A. D. 1857, &c., given by John Burnish, James Talbot and Thomas W. Yardley to Paxton and others in trust to Fox & Bro. and the Bloomsburg Iron Company and others (the remaining creditors having been fully paid by Burnish, Talbot and Yardley), has received the sum of thirty-seven thousand four hundred and sixty-six -ffl, dollars out of the purchase-money of the real estate (rolling-mill property) of John Burnish, Thomas B. Harris, John Bickley, Joseph Downing and James Talbot, on its mortgage aforesaid.</p> <p>“ $37,466.87. Charles M. Atkins, assignee.</p> <p>“ By his attorney, James H. Campbell.”</p> <p>The executions were not returned by the sheriff.</p> <p>On the 8th of July 1864 this agreement was filed, and in accordance with it, James Ellis, Esq., was appointed auditor.</p> <p>“ In the Court of Common Pleas of Schuylkill county: Charles M. Atkins v. John Burnish & Co., 81, March Term 1864; fi. fa. debt, $36,436.20; real debt, $18,217.60; Stichter & Thompson v. Same Defendants, 90, March Term 1864; fi. fa. debt, $2000 ; Allen Eisher, Trustee, &c., v. Same Defendants, 91, March Term 1864; fi. fa. debt, $3900; The Bloomsburg Iron Co. v. Edward Yardley, Thomas W. Yardley, John Burnish and James Talbot, 117, March Term 1864; fi. fa. debt, $73,377.64; real debt, $36,688.72.</p> <p>“ And now, July 8th, 1864, the parties in the above case agree that for the purpose of effecting a distribution of the money arising from the sale of the real and personal property of John Burnish & Co. the money may be considered in court, and we agree, that the court may appoint an auditor to make distribution ,of the money, arising from the sale, to and among the lien creditors entitled to the same. It is further agreed, &c.</p> <p>J. W. Byan,</p> <p>Attorney for E. Yardley. Campbell & Smith,</p> <p>Attorney for C. M. Atkins. Lin. Bartholomew,</p> <p>Attorney for Stichter & Thompson, and Allen Eisher, Trustee, &c.”</p> <p>Another agreement was entered into and filed substantially the same as the foregoing and of the same date; — with this in addition:</p> <p>“We, the undersigned, agree to waive the ten days’ notice, and agree that the report in the above case be filed in court on or after Monday, 9th day of January 1865.</p> <p>J. W. Byan,</p> <p>Att’y for Yardley & Bennett. John Bannan,</p> <p>Lin. Bartholomew,</p> <p>Ben. W. Cummings,</p> <p>Campbell & Smith,</p> <p>Attorneys for C. M. Atkins.”</p> <p>On the 20th of March 1865, the auditor filed his report which was on that day’ confirmed nisi. Amongst other things he reported that the real estate had been sold under the execution of the Bloomsburg Iron Company.</p> <p>He made the following distribution:—</p> <p>Fund arising from the real estate:</p> <p>To costs........ $942 99</p> <p>To the administrators of Paxton .... 18,108 59</p> <p>Balance on first mortgage, including interest to February 29th 1864, to D. R. Bennett, assignee of said administrators ...... 5,222 41</p> <p>Remainder pro raid :</p> <p>To Fox & Brother’s note ..... To Bloomsburg Iron Co.’s judgment . . 1,007 30,723 47 54</p> <p>Total proceeds of real estate ..... $56,000 00</p> <p>Fund arising from personal estate:</p> <p>Sheriff’s costs....... 80 34</p> <p>To laborers........ 7,263 96</p> <p>To J. A. Innes, excise tax . 199 50</p> <p>To Asbury Mortimer, keeping horse, 160 00</p> <p>The balance of the fund to the Bloomsbury Iron Co.’s execution ....... 10,959</p> <p>Personal property brought.....$18,663 68</p> <p>On the 10th of April 1865, the affidavit of W. R. Smith, Esq., of counsel with C. M. Atkins, was filed. It set forth that no assignment from the administrators of Paxton to D. R. Bennett was produced before the auditor, that nothing was claimed by Bennett of the residue of the Paxton mortgage at the hearing that after the report had been made the auditor informed him that the distribution was the same as that made by the sheriff, that he did not know to the contrary until the 4th (then) instant, and that the report was a surprise to him.</p> <p>Upon filing this affidavit, the court same day permitted Atkins to file exceptions, nunc pro tune.</p> <p>The exceptions were,</p> <p>1. Awarding any part of the fund to I). R. Bennett.</p> <p>2. Reporting that the real estate had been sold under the execution of the Bloomsbury Iron Company, when the record showed that it had been sold under the execution of Paxton’s administrators. A very large amount of testimony was taken as to the exceptions: and on the 24th of June 1867, whilst the matter was still under consideration, the attorneys of C. M. Atkins and-Atkins & Brother moved to quash the whole proceedings on the ground that there was no fund in court for distribution, and the court had no jurisdiction in the proceeding.</p> <p>The opinion of the court was delivered, October 25th 1867, by Ryon, P. J.</p> <p>“ This case comes up on exceptions to the report of the auditor. The counsel for Daniel R. Bennett, a creditor claiming a portion of the fund, moved for a rule upon the sheriff to pay the proceeds into court. The counsel for C. M. Atkins, the purchasing creditor and the claimant of the fund, agreed in writing that the money should be considered in court, that an auditor should be appointed, and the distribution of the proceeds of the sale made, the same as if the money was in court. The auditor was appointed in pursuance of this agreement, and the parties with their counsel appeared before the auditor and were heard. The auditor made his report and gave notice to the counsel of the respective parties that the report was ready for signing, as he was bound to do under the 25th rule of court; and all the counsel signed a waiver of the ten days’ notice and of their right to file exceptions. The counsel for Mr. Atkins upon the argument, asked to have the whole proceedings quashed for want of jurisdiction, upon the ground that no money had been paid into court. Mr. Atkins purchased the property from which the proceeds of the sheriff’s sale arose. He was the claimant of all the proceeds, except the amount due upon the first mortgage. He had paid what was claimed by Paxton’s administrators, upon the first mortgage, and hence Atkins was really the claimant of the whole fund, and denied the claim of Daniel R. Bennett. The sheriff had made application, of the proceeds, and had taken Atkins’s receipt for the amount distributable to him upon the second mortgage and the judgment against Yardleys, Burnish et al. Atkins being the purchaser and the claimant of the fund, the sheriff was bound to take his receipt, and he was not bound to pay the amount claimed by him to the sheriff. It was the duty of the sheriff to take the purchaser’s receipt, state the fact in his return, and attach a list of liens upon the property sold to his return. Upon this being made in open court any claimant upon the fund might have had an issue or an auditor to try the right to the fund and make distribution. The agreement of'the parties’ counsel was not even necessary to give jurisdiction to the court, for this case is clearly within the 1st and 2d sections of the Act of 20th April 1846.</p> <p>“ Whatever questions may have been raised about the regularity of the initiatory steps, the agreement of counsel and the subsequent actions in the case, estop the parties from denying jurisdiction. They had their day in court and took their chances of a trial. It would be inequitable and unjust to allow them now to repudiate the result.” * * * *</p> <p>After discussing the exceptions, they were dismissed, and the report confirmed.</p> <p>C. M. Atkins appealed, and assigned for error, that the court had no jurisdiction as there was no fund in court for distribution; with other errors relating to the distribution.</p>

<p>1. The authority of a tax collector is his warrant; the duplicate is but a memorandum of the amount.</p> <p>2. A collector, without a warrant, meddling with a tax-payer’s property is a trespasser.</p> <p>3. There must be a law authorizing the issue of the warrant, some person appointed to issue it, it must conform to the law and be issued by the proper person, or it is no protection to the collector.</p> <p>4. The collection of bounty tax must be by the process and officers employed to collect the other taxes of the municipal division levying it.</p> <p>5. A tax levied by school directors is to be collected by .a person appointed by them and under a warrant issued by the president and countersigned by the secretary.</p> <p>6. A warrant to collect taxes levied by school directors, signed by two justices of the peace, is of no validity; justices have no authority to issue such warrant.</p> <p>7. Whether a member of a school board can be appointed collector of taxes assessed by the board ? Dubitatw.</p>

<p>1. The charge of the court with the notes of evidence of the judge filed with it are part of the record.</p> <p>2. A note drawn by Henninger and for his accommodation with an endorsement in the name of Noll, was also endorsed with a guaranty by Eyer and was discounted by a bank. The bank sued Eyer. Held, that the court erred in charging that it was incumbent on the bank to prove affirmatively that the contract of guaranty was made with them.</p> <p>3. As Noll endorsed for the accommodation of Henninger and the bank</p> <p>was the first holder for value, the law implied that the guaranty was made' to them. ;</p> <p>4. The guaranty is not distinguishable from a general letter of credit, on which an action may be maintained in the name of the person who gives credit on the faith of it.</p> <p>5. A guaranty is not assignable so as to enable the assignee to sue on it in his own name.</p>

<p>The plaintiff raised tobacco on the shares on defendant’s farm; the whole crop was stored in defendant’s sheds. By a written agreement the plaintiff “ agrees to sell and does sell (to the defendant) all his tobacco on the farm of the (defendant), being the undivided half of all the tobacco — at 14 cents per pound. The said tobacco being herein and hereby now delivered to the (defendant, who) hereby agrees to sell the said tobacco for the best price he can obtain, and whatever he may obtain — after paying all expenses over — and above the said sum of 14 cents per pound, he shall account for and pay over to” defendant. The whole crop was destroyed by flood. Held, that the sale was absolute and the defendant liable for the price.</p>

140, to January Term 1868. In tbe court below, this was a feigned issue directed on an appeal by Chapman township from the decision of the township auditors, crediting Abel Herrold, treasurer, with payments made by him for bounties to volunteers.

354. This was an ejectment, brought by Ernest Diese against Ehrhart Yerger, Louis Bergdoll and Charles Psotta. Lewis F. Fackler was afterwards admitted to defend as landlord. The property in question was, on the 15th of August 1850, conveyed to Philip Blaess and Henry A. Bergmann in fee.

<p>1. The defendants contracted for ice with three persons, who used the name of a paving firm, of which two of them were members. As the ice was delivered, drafts were accepted by defendants payable at a bank, and were endorsed to the plaintiff, who was a clerk in the paving firm, and knew the ice firm was using their name; he had loaned beyond the amount of the drafts to the ice firm. One of the drafts was presented and protested, the others were not presented; there were no funds at the bank to meet the drafts during the time they matured. Held, that there were no grounds of suspicion from these facts to require proof of consideration, &c., from the endorsee ; and that damages for the non-fulfilment of the ice contract could not be set off against the drafts.</p> <p>2. The non-presentation of the drafts was accounted for by failure to place funds at the bank to meet them. •</p>

22. -This was an action of assumpsit, brought March 6th 1862, by Levi H. Groff against Dan Rice, upon a promissory note made by one McLaren, of which Rice was the endorser. Judgment had been recovered upon the note against McLaren December 22d 1860, and an execution issued thereon, to which the sheriff returned that he had levied upon certain goods, which were claimed by Edwin P. Christy, and took a rule to interplead which was made absolute February 9th 1861.

<p>Error to the District Court of Philadelphia: to July Term 1867, No. 183.</p> <p>This was an amicable action and case stated, filed March 23d 1867, in which the Frankford and Philadelphia Passenger Bail-way Company were plaintiffs and the City of Philadelphia defendant.</p> <p>The facts agreed on in the case were that the plaintiffs were a corporation under Act of April 10th 1862 (Pamph. L. 393) and its supplement of March 21st 1865 (Pamph. L. 499); in pursuance of their powers, they agreed with the Frankford and Bristol Turnpike Company, for $1000 per annum, to lay rails upon the turnpike; they have laid rails within the city of Philadelphia for a mile and a half, and run over the road six passenger cars; the city of Philadelphia, on January 2d 1867, ordained that passenger railway companies should pay $50 for each car run by them; the defendants, on the 30th of January 1867, paid to the city $300 under protest, with notice that suit would be brought to recover it back. “ If upon the foregoing facts the court shall be of opinion that the defendant had not the right to demand, nor now the right to retain said sum of money, then judgment to be entered for the plaintiffs in the sum of $300, with interest from February 1st 1867; otherwise for the defendant.”</p> <p>The court below entered judgment for the defendants, Sharswood, P. J., delivering the following opinion:—</p> <p>“ The question which is meant to be presented for decision in this case stated is, whether an ordinance of the city of Philadelphia, entitled £ A Further Supplement to an Ordinance to Regulate Passenger Railways,’ approved January 2d 1867, is valid. By this ordinance it was provided that each and every passenger railway company should pay to the chief commissioner of highways the sum of $60 for each car run upon their respective roads. We are not disposed to follow the plaintiffs’ counsel in his ingenious and elaborate examination of the power of the defendants to impose taxes on the franchises or property of corporations within their limits. We do not regard this ordinance as imposing a tax, but ordaining a police regulation.</p> <p>“ When the legislature authorized the plaintiffs to run passenger ears on their railroad, it gave them no privileges or immunities which did not belong in like measure to any individual or any other corporation who ran a carriage on the streets for hire or their own use. It is within the general police powers of the municipality to control and regulate vehicles of every class kept and used for hire on the streets of the city — wagons, carts, coaches, wheelbarrows and handbarrows; and they can lawfully require them to be registered and numbered, and to take out a license. On the 16th of April 1812 the city passed ‘ An Ordinance for the Regulation of the Owners and Drivers of Hackney-Coaches, Wagons, Carts and Drays within the City of Philadel- ■ phia,’ without any special power from the legislature, and no one has ever questioned the validity of that ordinance. But if express legislative authority were needed for the regulation now in question, we have it.</p> <p>“By the 12th section of an Act of Assembly, passed April 15th 1850, Pamph. L. 469, it is enacted £ That the select and common councils of the city of Philadelphia shall have authority (by ordinance or ordinances) to provide for the proper regulation of omnibuses, or vehicles in the nature thereof; and to this end it shall be lawful for the said councils, &c., to provide for the issuing of licenses to such and so many persons as may apply to keep and use omnibuses or vehicles in the nature thereof; and to charge a reasonable annual or other sum therefor.’ It was provided by the 44th section of the Consolidation Act of February 2d 1854 that all acts of the legislature not inconsistent with that act should continue in operation until altered or repealed. Now, surely no one can doubt that a passenger railway car is a vehicle in the nature of an omnibus,» if it is not itself an omnibus running on a railroad. It then only remains to inquire whether the sum of $50 on each car is a reasonable annual sum. ■ If $5 is a reasonable sum to pay for a hackney-coach, which holds'four persons and stands half the day idle (as by Ordinance of 9th of May 1855, which has never been questioned), $50 cannot be an unreasonable sum to pay for a passenger car, which can be, and often is, packed so as to hold forty, which is constantly running, and empties and fills half a dozen times every trip. If there is any peculiar hardship in the plaintiffs’ case, owing to the shortness of their road, they ought to apply for relief to the councils; but there is this to be observed, that the shorter the route, the fewer the cars necessary to maintain their road in order to keep the travel supplied by as frequent trips as the other roads in the city.</p> <p>“Judgment for the defendants.”</p> <p>The plaintiff took a writ of error, and assigned for error entering judgment for the defendant.</p>

<p>Error to the District Court of Philadelphia,: to January Term 1868, No. 68.</p> <p>This was an action on the case for deceit, brought by William McAleer against Andrew S. McMurray, Samuel Boyd, Daniel Baird, Robert Boyd, James Boyd, Daniel Boyd, John Cunningham and Robert Cuy.</p> <p>The declaration contained six counts. The first five counts charged substantially that the defendants organized a company to mine oil; had it incorporated by the name of the Olive Branch Oil Company; became directors; represented that its land had cost and was worth $37,500, when it was worth but $8000; issued certificates that there were 100,000 shares, on which $5 each had been paid, when the capital was less than $20,000, and the stock was of no value; that the deeds for the land. falsely stated the consideration to be $37,500, when the cost was less than $10,000; that the land was of little value, and that the defendant, relying on these false representations, bought and paid for 500 shares of the stock. The sixth count averred that the defendants, conspiring and intending to commit the frauds, &c., organized and did the other acts mentioned in the former counts, and certified under oath that 50 cents per share had been paid on the stock; that they caused to be apportioned to themselves a large number of shares, which they sold to divers persons, and the plaintiff purchased 500 shares of one Riddle, who represented that certificates would be delivered when the company should be incorporated; that plaintiff not knowing the facts, but confiding in the representations and honesty of the transaction, paid Riddle $625 for the stock, and received a certificate for the shares: that the defendants had paid a much smaller sum than $37,500 for the land, had taken that sum from the treasury, and after paying the smaller sum, had appropriated the residue to their own use; that 50 cents per share had been paid on only a small portion of the 100,000 shares, and that the defendants had not paid anything on their shares: that $5 per share had never been paid to the company by any one, &c. All the counts stated that the plaintiff was deceived.</p> <p>On the trial below, the plaintiff gave evidence by James Boyd, the secretary of the company, that one McElhenny was’ the projector of the company; that Baird, S. Boyd and himself participated; that McElhenny sold the land for $12,500 cash and $3000 in stock; the price he asked was $37,500; the difference was paid to some of the directors as commission; all paid in cash or checks except McElhenny; the checks of Baird and Cunningham, Robert and Samuel Boyd & Co., composed of Samuel, Daniel and James Boyd, were returned to them; $20,000 in cash came into the treasury, of the balance $4500 were given to Baird & Cunningham, $3000 to Robert Boyd, and $6000 to Samuel Boyd & Co., besides the checks; these sums did not go on the books of the company; McElhenny gave receipts for $37,500. Nothing was then paid to him. An assessment of 5 cents per share was called in and paid. McMurray did not know the price at which the land was sold. Samuel, Robert and Daniel Boyd and the witness knew. Thomas Riddle testified that in the spring of 1865, he sold to plaintiff 500 shares of Olive Branch stock. Plaintiff asked witness to sell him some oil stock — he wanted to buy 1000 shares of Hubert oil stock. Witness sold him 500 shares of Hubert and 500 shares of Olive Branch. Witness told him he had Olive Branch stock, but did not want to sell it. Plaintiff made no inquiry about the value of the stock, nor where the land was, nor what it cost; he asked no questions; witness told him nothing about it; plaintiff simply wanted oil stock.</p> <p>The plaintiffs gave in evidence also the deeds for the land to McMurray and the others; the aggregate consideration stated in the deeds was $37,500; the deeds were made to McMurray and the others because they were directors of the company, and letters patent had not been issued.</p> <p>The articles of association, dated December 17th 1864, certificate of organization sworn to January 23d 1865, and duly recorded, letters patent dated April 3d 1865, transfer to plaintiff from Riddle May 15th 1865, and deed from McMurray and others to the company, dated June 19th 1865, were also given in evidence.</p> <p>The defendants offered no evidence, but submitted points as follows, viz.:—</p> <p>1. To enable the plaintiff to recover, the jury must be satisfied that the defendants made the representations alleged in the declaration, that the same were false, were known by the defendants to be false, and were made by them fraudulently and with intent to deceive the plaintiff, that the plaintiff had knowledge of such representations at the time of his purchase of the stock, and relied «pon them as true, and was induced to purchase and did purchase by reason of the said representations.</p> <p>2. To entitle the plaintiff to recover, the jury must be satisfied that the representations alleged to have béen made by defendants were made by them with a fraudulent purpose, and with intent to deceive and mislead the plaintiff, and that the plaintiff purchased by reason of such representations.</p> <p>3. Notwithstanding the jury should find that the defendants made the representations alleged, and that the same were false, unless such representations were made to the plaintiff, or were intended to be, and were accordingly communicated to him, the plaintiff cannot recover.</p> <p>4. Falsely stating the consideration in the deed to Olive Branch Oil Company to be $37,500 is not such a representation to any subsequent purchaser of the stock of said company of the price paid for the land conveyed in said deed as to render the defendants liable to such stockholders in an action for deceit in making such false statement.</p> <p>The court declined to affirm the defendants’ points, and reserving the points hereafter mentioned, charged that the record of the certificate was a publication to the world, and that plaintiff was' to be presumed to have examined, and to know its contents, and that it was not necessary to prove actual knowledge, and that the plaintiff could recover.</p> <p>The points reserved were:—</p> <p>1. Whether the plaintiff was entitled to recover for the alleged fraud, or whether the company was the party defrauded.</p> <p>2. Whether it was necessary to bring home personal knowledge to plaintiff of the alleged misrepresentations in the recorded certificate.</p> <p>The verdict was for the plaintiff.</p> <p>The court in banc afterwards entered judgment for the defendants on the reserved points, Sharswood, P. J., delivering the opinion, as follows :—</p> <p>“We are now to consider the reserved point. It is too plain for argument that the stockholder of a corporation cannot maintain an action against either directors or other persons for a wrong to the corporation. There is no privity to sustain the action. The creditor of a corporation might as well do so. Indeed he would have a better right, for the damages suffered by the corporation ought to be applied, when recovered, to the payment of its debts before being divided or distributed among the stockholders. It seems hardly necessary to cite cases for so plain a proposition. Yet in the struggles of injured stockholders for redress, this has been attempted and failed: Smith v. Hurd, 12 Met. 371; Allen v. Curtis, 26 Conn. 456; Hersey v. Yeazie, 24 Maine 9. The plaintiff’s counsel have in effect recognised this in the form of their pleading. This action is only sustainable as an action for a deceit against several persons. Nothing in the whole course of the law seems better settled than that to maintain such an action it must appear that plaintiff knew and relied upon the representations alleged to be false and fraudulent. We might cite for this every case from Pasley v. Freeman, 3 T. R. 51, down, but it will be enough to refer to the decisions of our own Supreme Court in Huber v. Wilson, 11 Harris 178; Harris v. Tyson, 12 Id. 347. Justice Wightman, in one of the English cases cited and relied on by plaintiff’s counsel (5 Ell. & B. 867), says of such an action, ‘ All the essentials for an action for false representation are here. The representation is untrue; it is known by the persons making it to be untrue; it is calculated to induce the plaintiff to act; and he believing it, is induced to act accordingly.’ There are authorities, no doubt, to be found to support the position that the representation need not be made directly to the plaintiff: Ger-hard v. Bates, 2 Ell. & B. 476, and the American cases cited in the note to the same case, 75 E. C. L. R. 491; but it must be affirmatively shown to have come to the plaintiff’s knowledge, and to have induced him to give the credit which has resulted in the loss. As Gibson, C. J., expresses it, 1 a constructive deceit is a new thing under the sun:’ Bokee v. Walker, 2 Harris 141. There was hpre no evidence whatever that the plaintiff knew of the false and fraudulent representations made by defendants, and if he did not know he could not have been deceived by them. The nearest approach to evidence of knowledge is the certificate of shares. It is argued that the plaintiff may be presumed to know that by the law of its organization, the corporation was forbidden to issue shares for less than their par value, and the certificate on its face, therefore, is a representation of the fact that the company had received the full par for the stock. This is rather a remote inference, and the strong presumption is the other way, from the fact that only four months after the organization of the company he paid but one dollar and twenty-five cents a share for the stock when it called for five dollars. However, the answer is, that there was no evidence that plaintiff ever saw a certificate till after he had bought the stock and it was transferred to him. Before that he could not have seen his own certificate, for it was not in existence. No doubt he inquired of his vendor how much had been called in on the stock, and might have been told in good faith that all that had been paid in was one dollar a share. It is urged, however, that the certificate which was recorded according to law, was a publication to the world of the facts set forth in it, that the plaintiff must be presumed to have consulted the record before he purchased, and therefore to have been deceived. The judge below so charged the jury, having reserved the question. But what was there in the Act of Assembly to raise any presumption that the plaintiff saw and relied on it ? It was plainly intended to give information of the facts, hut its object went no further. If, in truth, representations of the character complained of had come to the plaintiff’s ears, he could not have been precluded from recovering by showing that the recorded certificate contained a statement of the exact truth. It no more raised a presumption either in law or fact of the plaintiff’s knowledge, than would the posting up of the certificate in the company’s office, or on the corners of the streets. Nor was it near so strong in point of fact as would have been the publication of it in a newspaper, proved to have been taken and read by the plaintiff. It would be monstrous to say that such a publication should be evidence against a party to visit him with notice. How, then, could it be evidence for him of knowledge ? It cannot be inferred that a party reads all the contents of any newspaper he may choose to take: Belts-hoover v. Blackstock, 3 Watts 26. As experience of the common course of human actions is the mother of all presumptions, it would fall more within it to hold that the plaintiff read the publication in his newspaper than that he sent to Venango county to examine the records. We think there was neither presumption of law nor of fact to be submitted to the jury that there, was any knowledge by plaintiff of the alleged false and fraudulent representations, and if he did not know of them, he, of course^ was ■not deceived.</p> <p>“ I have examined with great care every case which has been •cited to us by the plaintiff’s counsel as sustaining the action. Though there are some dicta in his favor, there is no decision. In Adamson v. Jarvis, 4 Bingh. 66, there was no question of plaintiff’s knowledge. He had, as auctioneer and agent of the defendant, sold the goods of a third person and paid over the money to defendant, and was afterwards mulcted in damages to the party injured. The action for the false and fraudulent representation by defendant of the goods as his was held to be maintainable. The general language of 0. J. Best, which is here relied on, is to be qualified by the facts of the case when he says, ‘ He who affirms either what he does not know to be true or knows to be false, to another’s prejudice and his own gain, is, both in morality and law, guilty of falsehood, and must answer in damages.’ Scott v. Dixon, 1 Ellis •& Ellis 1099, was the case of a false and fraudulent report made to .shareholders, printed for general circulation ; and part of the case was that plaintiff procured one of these reports and bought his stock ■on the faith of it. Gerhard v. Bates, 2 Ell. & Bl. 478, was a ■demurrer to a declaration which alleged certain false and fraudulent representations made in a public advertisement, and that defendants by means thereof induced the plaintiff to purchase his shares. Denton v. The Great Northern Railway Co. 5 Ell. & BI. 860, was an action against the defendants for a false and fraudulent representation in their time-table, by which plaintiff had suffered damage. It was a fact in the case that the plaintiff had consulted the time-table before he took his passage. In Wontner v. Shairp, 4 M., Or. & Sc. 404, it is expressly stated, that the plaintiff saw the notice which contained the alleged false representations. Bagshaw v. Seymour, Bagshaw v. Lake, 18 C. B. 903; in the House of Lords, 4 C. B. N. S. 873. In consequence of the falsehood of the defendants a committee of the stock exchange inserted the stock in an official list, which was made up from reports by the officers. It is stated expressly that the plaintiff saw the name of the stock inserted on the list, and bought on the faith of it. In Bedford v. Bagshaw, 4 Hurlstone & Norman 537, it appeared that the plaintiff was induced to purchase in consequence of the alleged fraud. Barnes v. Pennell, 2 Clark & Finnelly’s Appeal Cases, N. S. 479, was a Scotch appeal in the House of Lords. It was a proceeding to make the directors of a corporation liable for false and fraudulent representation; and Lord Campbell said, in the course of his opinion, ‘ It must be shown that the purchaser of these shares was induced to purchase them by the deceit of the directors.’ Cazeaux v. Mali, 25 Barbour 578, arose on demurrer to the complaint or declaration. It-alleged that the plaintiff was influenced by the alleged fraud. Judge Mitchell, after having laid down the proposition that ‘ the representation must have been made to deceive the plaintiff and must have produced that effect,’ observes afterwards as to the complaint, ‘He could not have been influenced if they had not been in some way reported to him.’</p> <p>“ There are, however, two or three cases particularly relied on, which deserve more special notice. The first of these is Watson v. The Earl of Charlemont et al., 12 Ad. & Ell. N. S. 856. It was an action for money had and received, to recover back what had been paid on an alleged false and fraudulent representation. There was a public advertisement, and no evidence that the plaintiff saw it. At pp. 863, 864, there is a colloquy among the judges, which certainly strongly favors the plaintiff’s case. Lord Den-man, C. J.: ‘I think that if an untrue statement is published, which is likely to induce a party to enter into a contract, and he does so, the person who made the false statement is bound independently of any proof that the other was actually induced by it to contract.’ Coleridge, J.: ‘ As at present advised, I am of opinion that if an advertisement is put out to induce parties to enter into a certain contract, and an individual does afterwards enter into such contract, and then comes into court to complain of misrepresentation, it is no part of his case to show that he was cognisant of the advertisement. Primd facie it will be taken that he was influenced by it.’ The other two judges acquiesced. If the law is here correctly stated, then there ought to be judgment for plaintiff on this reserved point. These judges did not think of submitting a question of fact without an evidence upon it to the jury. Prima facies is conclusive till evidence is given in contradiction. Rut after all this the case was decided in favor of the defendant and the plaintiff nonsuited on another ground, that there was no evidence that the defendant had received the money; lord Denman expressly disclaiming to give an opinion upon any other point discussed during the argument. This case then is certainly no authority. The next case is Wheelton et al. v. Hardisty, 8 Ell. & El. 232. That was an action on a life policy, to which the fourth plea was that the declaration in the policy that plaintiff had not any fit since childhood, was untrue. To this plea there was what is termed an equitable replication, setting up that before the policy was entered into, defendants circulated a prospectus whereby they undertook that their policies should be unquestionable except on the grounds of fraud, and that the plaintiffs were induced to enter into the policy on the faith thereof. On the trial it appeared that such a prospectus was issued, but no proof was given that the plaintiffs saw it, or were induced by it to make the policy. There were several rules taken, and among others why a verdict should not be entered for the defendant on this equitable replication to the fourth plea, on the ground of the defect in the evidence. Erie, J., delivered the opinion of the court. On this point he said, £ The evidence of the existence of the prospectus was quite as consistent with the plaintiffs’ not knowing it or not being induced to act upon it, as of their knowing and acting upon it. The plaintiffs may very well have effected the written contract without any reference to the prospectus; and modern cases have established that where the party on whom the onus lies of proving an allegation gives evidence as consistent with one view of the case as with the other, he fails in his proof.’ Lord C. J. Campbell dissented, putting his opinion mainly on the ground that the jury might presume from the circumstances that the plaintiffs had not seen the prospectus. £ I think,’ says he, “the jury might not unreasonably infer that according to the course of business, copies of the prospectus were given to customers coming to the defendants’ place of business, and were posted up in their office so as to be seen by all who dealt with them, the object of the defendants evidently being that the prospectus should be known as generally as possible.’ £ If they saw and read the prospectus, the next inference would almost be inevitable that the plaintiffs were induced to effect the policy with the defendants by the encouraging allegation that it would be unquestionable if they practised no fraud in obtaining it.” Judgment was, however, entered for the defendants on the fourth plea and the equitable replication. The case was removed to the Exchequer Chamber, but on this part of the judgment below that court pronounced no opinion. This then is an authority for the defendant, and not for the plaintiff.</p> <p>“ There was another case referred to in the argument, Lang-ridge v. Levy, 2 M. & W. 519. Defendant had sold a gun warranted or represented to he of a particular make. The person who bought it stated at the time that it was for the use of his son. The latter, who suffered an injury from it, brought the action. It is unnecessary to examine the grounds upon which Baron Parke put the decision of that case. It is enough for our present purpose to notice that the plaintiff is stated to have known of the representation. In Thomas v. Winchester, 2 Selden 396, defendant had placed a false label on a bottle containing poison, and it came through several hands to plaintiff. It is plain from the case that the plaintiff saw the label on the bottle before he swallowed its contents. In both these cases the question discussed was whether there was sufficient privity between, the plaintiff and defendant.</p> <p>“ I have examined this case much more at length than is usual with me, both because of its novelty and importance, and because, as I understand, there are several other cases pending of the same character. Indeed, if every shareholder of stock in an oil company, whose stock has fallen to zero, can maintain an action against the projectors, who have pocketed large gains by the sale of oil territory to the company, and made representations to induce the public to'confide in the stock, which were not true, we may expect a very large crop of such actions. The plaintiff and others in the same situation are not, however, without remedy, and that a simple, complete and full one. An action in the name of the corporation at law will .lie. Or if they refuse to allow that, then a bill in equity may be maintained by one stockholder for the benefit of all, making the corporation as well as the tortfeasors defendants, and thus in one proceeding in regard to each separate concern, complete and equal justice may be done to all: Kitchen v. Cougnor, 4 Russel Ch. R. 562; Hodges v. New England Senna Co., 1 Rhode Island 840; Attorney-Glen. v. Utica Ins. Co., 2 Johns. Ch. 385; Robinson v. Smith, 3 Paige 231; Cunningham v. Pell, 5 Ibid. 607.”</p> <p>The plaintiff took a writ of error, and assigned for error the entry of judgment for the plaintiffs. «i/r t.t., v-¡v ></p>

<p>1. In proceedings by a landlord under the Act of December 14th 1863, the tenant pleaded to the jurisdiction of the justice that since the demise, the premises had passed by sheriff’s sale to a third person to whom he had attorned. Held, that the plea was fatally defective in not setting out that the sale was under a judgment against the landlord and passed his estate.</p> <p>2. Under the Act of 1863, it is the duty of 'the justice to hear any lawful defence which the tenant may offer; that the title of the landlord had ended since the commencement of the lease would be such defence.</p> <p>3. The tenant cannot defend on an outstanding title in a stranger.</p> <p>4. The title alleged in defence must be connected with the title of the lessor or it must be shown that his title has been divested by his own act or by descent from him.</p> <p>5. A tenant has no right to attorn to a stranger to his lessor’s title. His paramount duty is to hold and defend the possession for his landlord and surrender it to him at the end of the term.</p> <p>6. Under the 1st section of the Act of 1810 (Justices), it is not sufficient to oust the jurisdiction merely to allege a claim of title to land, it must appear that such claim may be a defence.</p>

<p>1. School directors who, without authority of law, had paid for substitutes out of the funds of the district on the promise of the principals to repay, were not competent witnesses in an action by the district against the principals, being themselves liable to the district for improper payments.</p> <p>•2. A principal, at whose request school directors illegally paid money of the district to procure a substitute, in an action by the district against him to recover the money, cannot set up the want of authority of the directors as a defence.</p>

<p>1. A_ guardian received stocks as part of Ms ward’s estate, sold them and kept his accounts as if he had the stocks. Held, that he was chargeable with the stocks at the highest rate they attained after the conversion.</p> <p>2. The guardian charged with expenses of audit and denied commissions ‘ in this case.</p>

<p>Appeal from the decree of the Court of Common Pleas of Susquehanna county: In Equity. To January Term 1868, No. 19.</p> <p>This was a bill in equity, filed January 7th 1865, by Samuel W. Truesdell and others, tax payers in Liberty township, Susquehanna county, against fi. P. Snedaker and H. W. Howard, two of the supervisors, and Charles Stanford, collector of taxes of that township.</p> <p>The plaintiffs averred that besides the two defendant supervisors, David 0. Turrell was a duly qualified and acting supervisor ; that a call of 500,000 volunteers was made by the President, July 18th 1864, for which, if not filled in fifty days in any particular locality, a draft should be made there; that the quota of Liberty township was 16, of which but 8 were furnished; that on the 28th of September 1864, 26 men were drafted by the proper enrolling officers, and duly notified; that Snedaker and Howard, without the consent of Turrell, the third supervisor, and against his expressed will, on the 15th of October 1864, laid a tax of $4800, to procure substitutes for the men drafted and notified as aforesaid, and not for the purpose of procuring volunteers to fill the quota of the township, and delivered the warrant of collection to Stanford, who is about to proceed to collect the tax. They further averred that the quota was not filled by reenlisting veterans who had not been credited to any special locality, and who had originally been credited to Liberty township, or had ever been residents there, or by other volunteers who had been enlisted previously to the draft.</p> <p>There were other unimportant averments, alleging irregularity in laying the tax.</p> <p>By amendment to the bill filed April 3d 1865, the plaintiffs averred that the quota of Liberty township was never filled by volunteers who were mustered into the service of the government.</p> <p>The defendants answered that the number drafted was double the number required to fill the quota of Liberty township; that the 26 drafted men were never required to report for examination, because the quota had been filled before the time for examination ; that at a meeting held August 26th 1864, and before the time of the draft, the supervisors resolved to offer and did offer a bounty of $300 to each man enlisting to fill their quota, and levied a tax of $2643.92 to pay such bounties; they admit that Turrell did not assent to the offer, or to laying the tax; they averred that they were informed and believed that their quota had been filled, but did not know whether by veterans such as were referred to in the bill. In answer to interrogatories, they said that eight volunteers, the residue after substitutes furnished by the drafted men, were obtained from the borough of Scranton, which had that number of men in excess of its quota; were credited to Liberty township, for each of which eight the supervisors paid to the borough of Scranton $300, and the quota of Liberty township was thus filled; that they paid also $300 to each of those of the drafted men who furnished substitutes for themselves.</p> <p>An examiner was appointed, who took a large amount of testimony, relating principally to the purchase of substitutes from Scranton, and payment for them on behalf of the supervisors. The evidence was uncontradicted that the substitutes had been purchased from Scranton, transferred to Liberty township, and paid for by the supervisors; and that Liberty was relieved from the draft by the transfer. There was evidence also that credit had been given to Liberty township on the provost-marshal’s record for the Scranton substitutes, but the evidence was not clear on this point. There was also evidence of bribery and fraudulent combination between the agent of Scranton and the clerk of the provost-marshal to defraud the government; but none bearing on the supervisors or their agents.</p> <p>The Court df Common Pleas (Streeter, P. J.) dismissed the bill with costs, which on appeal by the plaintiffs was assigned for error.</p>

<p>1. In some eases where a special contract has been partially executed and then rescinded, the law raises a promise that he who has enjoyed benefits under it, will pay for what he has enjoyed.</p> <p>2. In such cases it requires but little evidence to show that such was the positive understanding of the parties.</p> <p>3. The plaintiff sold a horse to the defendant, who retained it for some days and returned it. The plaintiff inquired of the defendant’s messenger who brought the horse back, whether the defendant had sent a note or money; he replied the defendant had not, but that the defendant “ would fix it all right.” Held, these declarations were properly receivable in evidence, and that from them and corroborative facts, the jury might find a promise of defendant to pay for the use of the horse.</p>

<p>1. Where the question of the validity of a patent is directly involved, the jurisdiction of the United States courts is exclusive; state courts have no cognisance at law or in equity.</p> <p>2. When patent rights come into question collaterally, their validity may be inquired into by state courts.</p> <p>3. State courts can, at law or in equity, enforce a contract or trust whose subject is a patent, if the validity of the patent is not directly in question, and may pass upon that when it arises ex necessitate, as in defence to an action on a contract.</p> <p>4. A joint patent taken out on the sole invention of one, or a sole patent on an invention of more than one, is void.</p> <p>5. Equity cannot decree an assignment of a patent on the ground that the plaintiff, and not the patentee, is the original inventor.</p> <p>6. Mere suggestions or assistance from others will not invalidate the right of the patentee. To effect this, the suggestions must furnish all the information to enable the alleged inventor to construct the improvement, or use the new process completely and perfectly.</p> <p>7. It is not necessary to invalidate the right of the patentee, that every minute thing about the invention should be communicated, but the substance must be,</p> <p>8. In a joint invention, each party should invent or discover something essential to the whole result.</p> <p>9. A patent is the reward granted by the public for the skill and ingenuity of the inventor; no one else ean have the exclusive right, and he may assign it after the patent has issued.</p> <p>10. Within the limits prescribed by law, the inventor may grant the use of his invention before the patent is issued, provided he does not thereby forfeit his right, or abandon his discovery to the public.</p> <p>11. If one employed by another, whilst receiving wages, experiments at the expense of his employer, constructs an invention and permits his employer to use it, without compensation paid or demanded, and then obtains a patent, a license to the employer to use the patent will be presumed.</p> <p>12. Under a prayer for general relief plaintiff is entitled to such relief as is agreeable to the ease made in the bill, though different from the specific relief prayed for.</p>

<p>1. One partner may at any time withdraw and canse a technical dissolution of the firm, subject to liability to his partners if the act be wrongful.</p> <p>2. One of a firm of oil refiners purchased in his own name a lot on which to erect a refinery, the firm took a lease of it from him and erected buildings ; they could not afterwards claim that the lot should be treated as firm property.</p> <p>3. The maxim, vigilaniibus non dormientibus leges subveniunt applies in equity as well as at law.</p> <p>4. On the subject of dissolving partnerships a large discretion is vested ini courts of equity. Dissolution will not be decreed on slight grounds.</p> <p>5. AVhere a partnership can no longer be continued with comfort and advantage to all concerned a dissolution will be decreed.</p> <p>6. In making such decree, the court will consider not only the express contract of partnership, but also the duties and obligations implied in every partnership contract.</p> <p>7. Where a valuable business has grown up by the labors and contributions of all, the court should be careful to preserve it, and put all the partners on a fair and equal footing to compete for it. .</p> <p>8. To appoint a receiver, direct a sale of the whole, and a winding-up of the business, would destroy its value without benefiting either party.</p>

<p>1. An incoming partner is not liable on the contracts of the firm made before he became a member.</p> <p>s 2. Those who have sold goods or done work on the credit of the original partners, having no lien, have parted with all their interest in the effects, and can look only personally to those with whom they have contracted.</p> <p>3. The ground of liability of one partner for the acts of the others, is that of an implied general agency within the scope of the partnership.</p>

<p>1. Corporations, especially those whose existence and powers may be withdrawn at the will of the legislature, cannot enjoy the legislative grant without the correlative duty to perform its consideration.</p> <p>2. The rule, that a power not clearly conferred must be deemed to be withheld, is a canon in the interpretation of private charters.</p> <p>3. A supplement to the act incorporating a boom company provided, that by reason of the expense of erecting a new dam, the company might charge and collect as toll or boomage 85 cents per thousand feet, in lieu of 50 cents theretofore authorized. Held, that the erection of the dam was not a condition precedent to the right to collect the increase of toll.</p>

<p>1. In a ease in equity depending upon oral testimony, the judge should refer it to a master to sift the testimony, and collate and report the facts.</p> <p>2. Standing timber was sold — by the contract the quantity was to be determined by three referees named: after an examination and measurement of the timber, one of the referees fell sick and the others made an estimate and report. The sale of the timber was the true subject of the contract, and to prevent a failure of the principal matter, equity might furnish means of ascertaining the quantity if the contract had failed without fault of the party, or its execution became impossible by fortuitous causes.</p> <p>3. But where the bill is founded on the contract, asserting that a true estimate had been made according to its terms, a full and fair performance of the contract-mode of ascertaining the price of the timber must be shown.</p> <p>4. It was the right of each party to have the benefit of the skill, observation and suggestions of all the referees in making up the estimate.</p> <p>5. Equity will not decree specific performance, except where it'would be strictly equitable to make such decree.</p> <p>6. An agreement to be carried into specific execution, ought to be certain, fair and just in all its parts.</p> <p>7. A defendant may resist a decree, on evidence which would be insufficient to establish the case of a plaintiff.</p> <p>8. The specific performance of an award rests on the sound discretion of the court; if it appears that there are just objections to enforcing it equity will not interfere.</p>

<p>1. Fulmer '& Co. held a policy of insurance against fire — a fire having occurred they brought suit on the policy: the attorney of Fulmer & Co. marked the suit on the appearance-docket for the use of Slate. Rowland recovered a judgment against the firm, and issued an attachment-execution, making the insurance company garnishees. Slate was admitted to defend: the company made no defence. Held, that evidence was admissible to show, that marking the judgment for the use of Slate was without authority of Fulmer & Co., and that it was to secure the individual debt of one partner.</p> <p>2. An attorney at law has no authority as such, to sell or assign the claim of his client.</p> <p>3. The entry made by the attorney was not part of the record.</p> <p>4. An assignment is not a judicial act but a matter in pais.</p>

<p>1. A boom company was bound to maintain a boom, keep guard of lumber going into it, to have the logs that were rafted out counted by a measurer appointed by the court — the logs to be marked, and the company to receive tolls. A number of logs passed into the boom of which two persons claimed the ownership. In replevin by one of them against the company for “329,760 feet, more or less,” the sheriff returned “ replevied, defendant gave bond and retained the property,” and the defendant pleaded “ property:” held, that the defendants were not concluded by the return and their plea-from showing the actual amount of the lumber.</p> <p>2. Knowles v. Lord, 4 Whart. 500, commented on and distinguished.</p> <p>3. Vagueness and want of precision in a return may furnish an exception • to the general rule of the conclusiveness of records and returns.</p> <p>4. A contract was to sell and deliver logs in the spring of 1863 at a place named; tire low water prevented a delivery at that time; the vendor after-wards sold the logs to another, and in 1864 put the logs at the place named for delivery in the first contract. In a contest between the two vendees: held, that the delivery consisted both of the act putting the logs at the place and the intention of the vendor to deliver, and it was a question for the jury.</p>

210. In January 1867 Gray, a pauper, became chargeable on the township of Plunkett’s Creek, Lycoming county, and in February of the same year two justices of the peace granted an order to remove him to Fairfield township. Fairfield township appealed to the Court of Quarter Sessions. All the proceedings from the inception to the appeal were regular. On the hearing before the court, testimony was taken as to the fact of the pauper’s settlement.

<p>1. An agreement was made for the sale of a tract of land, excluding certain parts not particularly described; on a bill for specific performance, the court appointed a surveyor to survey the whole tract, and lay down the reservations. Mdd, that the court might direct such a survey for its information.</p> <p>2. The absence of a report of a master in a case heard on bill, answer and evidence, is a cardinal defect.</p>

<p>1. In an action on a sheriff's recognisance under the Act of March 28th 1803, the judgment is not for the penalty but for the damage sustained by the party suing. Each party aggrieved is to institute his own action in the name of the Commonwealth for his use.</p> <p>2. The Act of 1803 as regards suits on sheriffs' recognisances, was not altered by the Act of 1836 relating to official bonds.</p> <p>3. In a suit on a sheriff's recognisance the verdict was for the Commonwealth for the penalty, and for the party grieved for his damages. The verdict for the Commonwealth should have been set aside, and judgment entered below for the party grieved; and on failure to do so the Supreme Court will enter such judgment.</p> <p>4. In a suit against a sheriff and his sureties a general appearance was entered for the defendants, but no plea was put in for the sheriff. When the case came on for trial, on motion of plaintiffs, judgment was entered against the sheriff for want of an appearance, in the presence of the counsel who had appeared, they not objecting: held, it was too late to object on error.</p> <p>5. The judgment was entered against the sheriff for the amount due the suggesting plaintiffs. The regular practice would have been to enter an intexdocutory judgment, and the jury to have assessed the damages against him and the other defendants; but the irregularity was not fatal.</p> <p>6. The judgment against the sheriff was conclusive on his sureties, and dispensed with any evidence of request before suit, which is necessary by the condition of the recognisance.</p> <p>7. Not averring a request in the scire facias and declaration is a defect cured by the verdict.</p> <p>8. The court will presume that everything was done at the trial which was necessary to support the action unless the contrary appear on the record.</p> <p>9. Evidence that the sureties did not acknowledge the recognisance is inadmissible.</p> <p>10; Brownfield v. Commonwealth, 13 S. & R. 265, criticised.</p> <p>11. A sheriff’s recognisance is a record.</p> <p>12. The plea of non est factum is inapplicable to a sheriff’s recognisance.</p> <p>13. It is proper the recognisance should be signed to identify the cognisors, but it is not essential.</p> <p>14. A sheriff’s recognisance cannot be impeached or contradicted by parol evidence other than that which is available against judgments and decrees of courts of record, such as fraud or false personation.</p> <p>15. An officer intrusted by law with the performance of a public duty of which a record has been made cannot impeach it.</p>

This was a quo warranto issued on the relation of Benjamin Harris Brewster, Attorney-General, against David B. Green.

<p>1. A will may he cancelled by an act done to the will which stamps upon it an intention that it shall have no effect, though the act be not a complete obliteration or physical destruction.</p> <p>2. “ Obliteration” in the Wills Act is not confined to effacing the letters so that they cannot be read. A line drawn through the writing is obliteration, though it may leave it as legible as before.</p> <p>3. The words ‘'burning,” “cancelling,” “■obliterating” and “destroying,” in the act are used in their popular sense, and thus used secure the object of the legislature — a complete manifestation of an executed intention to repeal. T</p> <p>4. Cancellation of a will means any act done to it which in common understanding is regarded as cancellation when done to any other instrument. It must be an act done to the will itself, animo cancellandi.</p> <p>5. Declarations either verbal or written are admissible to show the intent.</p> <p>6. Revocation of a will may be effected by act of writing on the will itself a word which manifests an intent to annul it.</p> <p>7. Cancellation does not require a signature of any particular form.</p> <p>8. As distinguished from destruction, cancellation implies a preservation of the instrument, but with something on it indicative that it has ceased to be operative: it is not material what, if it clearly exhibits the intention to annul.</p> <p>9. Where a will is signed several times and also at its end it is the last which makes it a will and its erasure repeals the will.</p> <p>10. A repeal is effected by writing on the will a word manifesting an intention to annul it.</p>

<p>> 1. Where a railroad track is on a public street, owners of property in the vicinity, to sustain a complaint for constructing and maintaining it, must establish that it is a public nuisance, and that they have sustained snecial damage.</p> <p>2. In the authority' to the Philadelphia and Reading Railroad Company to construct a railroad are included ex vi termini, sidings and branches to their wharves, &o.</p>

<p>1. The Commonwealth determined to build a railroad from Columbia to the intersection of Broad and Yine streets in Philadelphia; with the proviso that before any part of the railroad between the west bank of the Schuylkill river and the intersection of said streets should he contracted for, the city should engage to construct and continue the railroad to Cedar street; the city constructed the latter road: Held, that the city had complete ownership of the road so constructed ; the city road was a portion of the line of the state road, but not a portion of the road..</p> <p>2. The city was bound to maintain its Broad street road as long as it was needed and used for the purposes of its original construction ; but when the legislature changed the terminus of the state road and severed the connection, the city was released from the further maintenance of its road.</p> <p>3. Under the Act of May 10th 1850 the canal commissioners sold to the Philadelphia and Reading Railroad Company the portion of the state road east of the inclined plane at Philadelphia; the act was their warrant which they could not amplify; strict construction is the rule in such cases.</p> <p>4. The conveyance by th,e canal commissioners refers itself to the Act of Assembly, and this was necessarily the extent of the title which was to pass.</p> <p>5. “ Appurtenances,” &c., in the deed to the railroad company was not sufficient to pass any interest in the city road. The only right the Commonwealth had was in its serviency which had ceased.</p> <p>6. One entire railroad will not pass as an “appurtenance” to another railroad.</p> <p>7. Rroperty built by a municipal corporation for its corporate use may be removed when the interests of the community demand it.</p> <p>8. Buildings erected on public grounds or highways acquire no right either on account of time or expenditure.</p> <p>9. A section in a public act relating only to private parties is to be regarded as a private act, and must be pleaded if relied on.</p>

<p>1. The doctrine of Strimpfler v. Roberts, 6 Harris 283, and McBarron v. Glass, 6 Casey 133, that a trust will not be sustained between the warrantee and one who has paid the purchase-money after twenty-one years, without possession taken by the claimant, &c., does not apply to a stranger to the title of the warrantee.</p> <p>2. In the question of the presumption of a grant, it is not necessary that actual possession should always be in the presumptive grantee.</p> <p>3. The validity of a mortgage and the regularity of the judgment on a scire facias obtained on it, cannot be questioned by one not connected with the mortgagor’s title as grantee, mortgagee, judgment-creditor, &c.</p> <p>4. Philadelphian. Miller, 13 Wright 440, explained.</p> <p>5. To pass title by tax sale, the assessment must contain some element either of circumstances or name which leads to identification of the land.</p> <p>6. The assessment is void only when it wholly foils to lead to identification.</p> <p>7. Although there be no other element of description, if the name in which it is assessed has become linked to the land by some known claim of title or possession, it is a source of identification and will support the assessment.</p> <p>8. Seventy years from the time of its location, a survey twenty years older than the one which endeavors to supplant it, is entitled to every reasonable presumption in its favor.</p> <p>9. Slight marks on the ground corresponding with the survey should have great weight in repelling the charge of its being a chamber survey.</p> <p>10. The evidence of one line corresponding to the time and location of the survey, or the existence of an older line made in pursuance of authority and shown by the return to have been adopted by the surveyor, is potent evidence that the survey was made on the land.</p> <p>11. In recent locations the absence of all evidence of the lines of survey is strong proof of a chamber survey, where there are no natural boundaries corresponding to the survey.</p> <p>12. If a chamber survey be made by the adoption of lines of older surveys made under authority of law to the same extent that is necessary to make a good survey on the ground, it is valid.</p> <p>13. Where some of the lines only have been made by adoption; after a great lapse of time, not finding the evidence of original work on the lines not made by adoption, is not conclusive that it was not done.</p> <p>14. If the survey was fitted only to a single line of an older survey, leaving the other lines unmade in figures of four or more sides, and the survey is finished by protraction on paper, it is invalid against a junior survey made within twenty-one years.</p> <p>15. If twenty-one years elipse before interference by a junior survey, the presumption in favor of the first, although a chamber survey, becomes absolute.</p> <p>16. In surveys by blocks, it is not necessary to show the running of each warrant. It is sufficient if the entire body be surrounded by an exterior boundary as complete as would make a good survey, if it were contained in a single warrant.</p> <p>17. In such case there might be but a single line marked for each tract; or if the tract were located in the interior surrounded by others on all sides, no side might be marked for it, and yet the survey would be good.</p> <p>18. Adopted lines must be real lines made under authority of law, in order to prevent the survey adopting them from being a chamber survey.</p> <p>19. Actual and chamber surveys discussed and applied to the case.</p>

<p>1. The legal intendment of an agreement by one to sell and convey property to another for a certain price is that the vendee shall pay the price to the vendor.</p> <p>2. A firm agreed to transfer all their effects, at an appraised valuation, to compose the capital stock of a manufacturing company when it should be formed, and to subscribe for its stock to the amount of the appraisement, the company agreeing to issue the stock therefor. On failure by the company to issue the stock the vendors could not sue for the sum at which the effects were appraised, but might recover such damages as they had sustained.</p> <p>3. Under an agreement to pay a certain sum of money in stock or other</p> <p>property, on refusal to pay in the property the creditor may demand the money and maintain debt. ,</p> <p>4. Under an agreement to issue stock, or deliver other property in specie, on failure the only claim is for damages in an action of assumpsit or covenant, accordingly as the agreement is under seal or not.</p> <p>5. Debt is founded on a contract, express or implied, in which the certainty of the sum or duty appears ; the sum is to be recovered in numero, and not in damages.</p> <p>6. When a special agreement has been so far performed that nothing remains but a mere duty to pay money, which it is for the plaintiff to show, a general count is all that is required.</p> <p>7. A note payable in property to be admissible under the common counts must contain a promise to pay a sum certain either in money or property.</p> <p>8. The 10th section of the Act 21st of March 1806, to regulate arbitrations, &e., is supplied and repealed by the Act of June 13th 1836 — (Commencement of Actions).</p> <p>0. Camp v. Bank of Owego, 10 Watts 130, and Loose v. Loose, 12 Casey 538, remarked on.</p> <p>10. The question whether an action should be on debt or special assumpsit is no longer affected by the 10th section of the Act of March 1806.</p> <p>11. The Act of March 27th 1854, as to liability of stockholders of manufacturing companies, for those things mentioned in it, contemplates a sale and delivery in the course of its usual business.</p>

<p>1. An exemplification of a record of a judgment and a sheriff's sale under it, not containing the fi. fa. and the levy and inquisition was certified to he as full and entire as it remained upon record. Held, to be admissible in evidence.</p> <p>2. The acceptance of a deed by a grantee makes its recitals evidence against him ; but not against a boná fide purchaser from him without notice.</p> <p>3. The sale of the land of a defaulting tax collector, by a warrant from the county commissioners, under the Act of April 11th 1799, is not a sale for taxes, and the laws relating to sales of unseated land are inapplicable.</p> <p>4. 'It is not an objection to such sale that it is not made on the day named in the warrant. The warrant has no return day, but is effectual as long as the commissioners may choose.</p> <p>5. If irregular, no one but the defaulter could take advantage of it.</p> <p>6. The commissioners could buy the land through an agent, take a deed for it for the benefit of the county, and lease or sell it at their pleasure.</p> <p>7. A tenant holding over continues tenant, and his possession is that of his lessor, so far as relates to the Statute of Limitations.</p>

<p>1. The law-making power of the legislature is supreme within its proper sphere, qualified only by the restrictions and limitations imposed by the constitution.</p> <p>2. The Acts of April 5th 1866 and April 5th 1867, appointing commissioners to build a free bridge over the Schuylkill at Philadelphia, to create a loan for the purpose, and requiring the councils of Philadelphia to provide for payment of the loan and its interest, are constitutional.</p> <p>3. The legislature could build the bridge, and pay for it by moneys proceeding from loans or taxes, and employ commissioners to erect it.</p>

<p>The Act of March 24th 1865 authorized any railroad company to issue such additional shares of stock as might be necessary to equip their road, &e., the stock to be of the same value and stand on the same footing as the original stock. By the Act of April 10th 1867 the directors of any railroad company authorized to increase its stock, when the increase shall have been authorized by the stockholders, may determine in what manner the same may be subscribed and sold, the amounts of the instalments and the manner of their payment. The stockholders of the Bast Pennsylvania Railroad resolved that the directors should have power to increase the stock, and dispose of the same as they may deem advisable. The directors accepted a subscription for an additional issue of stock for the purpose of extending their road to the Delaware, and stipulated that interest at the rate of 6 per cent, upon the instalments on the stock should be paid until the completion of the extension, with a proviso that the new stockholders should not participate in any of the profits theretofore made. Held, that such subscription was unauthorized by the aforesaid acts and the resolution of the stockholders.</p>

<p>April 4th 1868 (Registry) is unconstitutional. 1. The Act c</p> <p>¡1 of a taxpayer where money is to be raised by taxation or expended from the treasury, entitles him to test in equity the validity of the iaw which proposes the taxation or expenditure. 2. The interi</p> <p>3. The inhibitions of the constitution as to legislation are to be regarded as well when they arise by implication as by expression. This is the case where the legislation is repugnant to some provision of the constitution.</p> <p>4. The expression of one thing in the constitution is the exclusion of things not expressed.</p> <p>5. Exceptions strengthen the force of a general law, and enumeration weakens it as to things not expressed.</p> <p>6. The constitution is to be understood in its plain untechnical sense.</p> <p>7. For the orderly exercise of the rights of voters under the constitution the legislature must prescribe necessary regulations as to whatever may be required to insure its full and free exercise: but the regulation must be subordinate to the right.</p> <p>8. No constitutional qualification of a voter can be abridged, added to or altered by legislation.</p>

This case was heard at Pittsburg October 1867. John Savage filed his bill against Cadwalader Wickersham for the specific performance of a contract for the purchase of a lot in the city of Philadelphia. The defendant in his answer admitted the making of the contract, but alleged that the plaintiff could not make a good title for the premises.

No. 76. This was an action of trespass q. c.f., brought May 18th 1867, by Henry H. Stahl and others against Moses Burkholder and others. This case being one in which the Supreme Court has interpreted and enforced its rules (6 Harris 578) in reference to the assignment of errors, &c., without discussing the merits it has been thought proper to report it here out of its chronological and local order. For the same reason a statement of the facts is unnecessary.

No. 46. This was an action of assumpsit, commenced June 1st 1866, by Christian Frankhouser against the School District of Brecknock Township.

12, to May Term 1868. On the 13th of November 1866, Benjamin E. Shenk and Robert H. Long entered a mechanics’ lien against Solomon Hershey and Joseph McGrlinn, contractors, and William A. 0.

4. This was an action of ejectment, brought to April Term 1866, by Martin B. Peiffer against Samuel S. P. Lytle, for a lot in Mount Joy. Both parties claimed under Samuel Kohr. The plaintiff gave in evidence a judgment in his favor against Kohr, entered July 28th 1857, for $1500; scire facias on it, with notice to Peiffer and Hoffer, assignees for the benefit of creditors ■of Kohr, and judgment, February 17th 1864, on verdict for $1940.98.

The appeal was taken by Anne Brubaker, Ecedora Townsley and Susanna Drybread, who were daughters of the decedent and legatees under his will. The decedent died on the 11th of May 1865, leaving a will dated April 23d in that year.

4. Until the franchises of such corporation have been adjudged by proceedings by the Commonwealth not to exist, it is a corporation de facto at least. Error to the Court of Common Pleas of Lancaster county: To May Term 1868, No. 48.

<p>1. The report of viewers of damages against a railroad company for taking land, &c., bears interest from the time it is filed, although final confirmation may be delayed by exceptions.</p> <p>2. When there is a final confirmation of the report after exceptions filed, it should be confirmed as of the time of filing, nunc pro tunc.</p> <p>3. A claimant of such damages is in the position of a vendor of land, who is entitled to interest on the purchase-money when the vendee has possession.</p>

• This was an action of ejectment brought August 16th 1866, by Magdalena Auble against Daniel Keller, for an undivided tenth part of nine acres of land. The plaintiff and defendant, with eight others, were the children of Samuel Keller, deceased.

86, to May Term 1868. This was an amicable action of covenant and case stated, in which John Gross and Sarah A. Gross his wife were plaintiffs and Lucian F. Melsheimer defendant. The action was commenced March 28th 1868.

19. This was an action of replevin for a horse, by Frederick Grothe against Edward Rodgers, brought May 17th 1865. The defendant pleaded non cepit and property. The plaintiff proved that the horse was in the possession of the defendant when the writ was served, and that plaintiff had bought him at a government sale.

27. This was an action of debt on a policy of insurance, brought to November .Term 1864, by J. W. Douglas and others, partners under the name- of The Caledonia Cold Springs Company, against The Cumberland Valley Mutual Protection Company.

This appeal arose upon the distribution of the estate of Joshua Eetrow, deceased.

Appeals from the Orphans’ Court of York county: Of May Term 1868. These were appeals from the decree of distribution of the estate of Henry Grove, deceased. The decedent died prior to the 23d of April 1868, on which day his will, made in February 1866, was proved.

<p>A testator directed that his wife should have his mansion farm for life, and further ordered, “ it is my will that if any one or two of my children wish to hold the old Mansion property, after two of them is of age, they can do so hy agreeing themselves; if they cannot agree, they can get three disinterested persons to divide and agree for them — the eldest to have the first choice, and each of my children’s share remaining in the property until they arrive-at twenty-one years. If, in case none of my children purchase the old Mansion, it must be sold to the best advantage for the use of my children, and. not until after the decease of my wife.” He made his wife and a son his-executors. An attachment-execution was issued against the son to attach his “ goods, chattels, debts, rights and money.” The sheriff returned that be* had “ attached all the interest of (the son), and all legacies given to (him) by the will — in the hands of (the son and the wife) executors of said will,” and. summoned them as garnishees. The farm was afterwards sold by the executrix, under an order of the Orphans’ Court. Held, that the attachment hound, the proceeds of the land in her hands; by Thompson, 0. J., and Read, J.,. that the land was bound as such on the service of the attachment; hy Sharswood, J., that the order on the will to sell was a conversion, and it wasi bound as personal estate. Strong and Agnew, JJ-, dissenting.</p>

<p>1. The insured in a mutual insurance company is a member: the books of the company are as much his as other members, and are evidence against him.</p> <p>2. An insured declared for a loss; the company pleaded that he had altered the buildings, which he traversed by his replication. Held, that under the pleadings evidence of waiver by the company was inadmissible.</p> <p>3. That an alteration was made in buildings insured by a tenant without the knowledge or authority of the assured, was no excuse for a violation of bis covenant against alteration.</p> <p>4. By a stipulation in an insurance, whenever alterations should be made application might be made to an officer of the company, “who shall examine the premises, and if the hazard be increased the premium shall be increased; if the risk was not increased, the officer should give a certificate ‘ altered but not endangered.’ ” Held, in an action for a loss by fire, that without proof of such examination and certificate, evidence that an alteration did not increase the risk was inadmissible.</p> <p>5. A policy on a tannery without steam was accepted under the terms specified in the company’s by-laws, which contained the classes and rates of risks. One of the classes was “ Tanneries without Steam.” Steam-power was attached to the tannery, and it was afterwards burned. Evidence that this did not increase the risk, and that the fire did not arise from the steam-works, was inadmissible.</p> <p>6. After a policy had been forfeited by alterations in violation of the bylaws, the company passed a resolution directing an assessment on all policies “ in force at this datethe treasurer assessed the forfeited policy, and the assured paid the assessment. Held, not a waiver of the forfeiture.</p> <p>7. A waiver never occurs unless intended, or where the act relied on ought in equity to estop the party from denying it.</p> <p>8. If the company had called for an assessment whilst steam was being used, and with a knowledge of the use, they would have been estopped from setting it up.</p> <p>9. After a policy has been forfeited, it cannot be renewed but by express agreement.</p> <p>10. It is not error to refuse an amendment which would not aid the party’s case.</p> <p>11. A replication inconsistent with one already filed is double, and is not an amendment of form.</p> <p>12. Such replication is not demandable of right under the Act of March 21st 1806, which extends only to the declaration or plea.</p> <p>13. Amendments beyond the plea are as at common law, and to be tested by a legal discretion.</p>

69. This was an action of replevin for a mare, brought to August Term 1866, by Edwin F. Fisher against Sylvester Harner. The defendant pleaded property. On the trial before Fisher, P. J., the plaintiff called John Shorb, who testified: Harner employed him to buy the mare in suit from Fisher.

87. This was an action of trespass de bonis asportatis, by Solomon Helser against William McGrath, who was sheriff of Franklin county. The writ issued August 9th 1862. The case had been in the Supreme Court before, when the judgment was reversed (2 P. F. Smith 531). The plaintiff’s cause of action was levying and selling 450 bushels of rye, which he alleged was his property, under an execution against Jacob Myers and John Zimmerman.

3. A scire facias was issued May 1st 1866 by A. Coyle and Scott Coyle, trading as A. & S. Coyle, against Jacob Kinsley, Jr., on a judgment for $99.10, to January Term 1837. The case was referred to arbitrators, who awarded for the plaintiff. The defendant appealed; he afterwards died and his executrix was substituted. A case was stated showing the following additional facts.

23. This was an action of assumpsit, brought May 12th 1859, by James Lewis against Levi Trego and A. P. Henderson.

This was a bill filed March 22d 1867, by Jacob Bixler against Abraham Stahl, Henry Wolf, and Cornelius Bernheisel, to restrain them as supervisors from expending taxes in Madison township in the manner set out in the bill. In August 1857, the township of Madison was divided into two election districts, one called Sandy Hill and the other Madison.

18. This was an action of assumpsit by S. M. Royce against George Chorpenning, commenced October 30th 1861. The plaintiff’s cause of action was for services rendered the defendant in California. The case appears to have gone to trial on the general issue. Shell, a witness for plaintiff, testified: The defendant had a contract for carrying the mail from Salt Lake City to Placerville.

92. This was a bill filed May 7th 1867, by Jacob Hetrick against George Smith and Elizabeth Smith his wife. The bill set out that the plaintiff was in the eighty-sixth year of his age, “infirm in body and feeble and weak in mind.

85. This was an action of covenant by George Knepper, et al., executors, &c., of David Knepper, deceased, against Addie L. Kurtz, administratrix, &c., of James Reed, deceased. The writ was issued April 6th 1866.

54. This was an action of trespass q. c. f. by Thomas Ritchey against Jacob Lingenfelter and others, in which the writ was issued, January 16th 1867. The pleas were “not guilty” and “ liberum tenementum.” The plaintiff gave in evidence warrant of September 21st 1796 to Valentine Hollar; survey of October 25th for 448 acres. Prior to April 25th 1837, Abraham Sparks owned one-half of the survey, and Solomon Hollar, who was the husband of Sparks’s sister, the other half.

30. This was an action of trespass q. c. f., by Paul S. Mock against Josiah Burk, commenced October 7th 1865. The defendant pleaded not guilty and liberum tenementum. Each party claimed locum in quo as an improver of it as vacant land. The plaintiff’s evidence was that before harvest in 1860, he was intending to take up some land alleged to be vacant in Union township, Bedford county, was shown three undoubted lines of the vacancy.

80, to May Term 1868. The appeal in this case was by John Schlosser and Emeline M. Schlosser his wife, and Levi K. Hummelshine, from the decree of distribution of the proceeds of the sheriff’s sale of the real estate of Sarah C. Schlosser and said Emeline M. Schlosser. On the 12th of April 1866 Sarah C. Schlosser and Emeline M. Schlosser, both married women, bought of Jacob Hutton a lot of land in Chambersburg for $2600.

<p>1. By the Act of 1705 (Stray Swine), in certain cases and by a defined process, owners of swine may lose and others may acquire the ownership. It is incumbent upon one who claims that he has acquired the property, to ■ show that the statutory forms of proceeding have been strictly pursued.</p> <p>2. A magistrate has no authority to adjudge a forfeiture, unless everything required by the Act of Assembly to give him authority appears.</p> <p>3. To justify a forfeiture of a hog, the justice’s record must show, that the person taking it and giving information was “ legally attested by the justice that the hog was taken up running at large without yoke or bow and ring.”</p>

38. In the court below this was an amicable action of debt instituted December 13th 1867, between the Commonwealth of Pennsylvania and George Carey Tharp-^ in which a case was stated for the opinion of the court. The facts shown by the case are: On the 18th of March 1842, an Act of Assembly (Pamph.

72, to May Term 1868. This was an amicable action and case stated, filed August 12th 1867, in which J. A. Eyster was plaintiff, and Caspar Wickey was defendant. The agreed facts were, that the plaintiff leased a house and lot in Chambersburg to one Monyer for one year, from the 1st day of April 1867, at the rent of $425, payable quarterly.