Volume 59 — Pennsylvania State Reports

Appeal of Lewis Ritter from the decree of the Court of Common Pleas of Franklin county. In Equity. No. 95, to May Term 1868.

<p>Error to the Court of Common Pleas of Bedford county: No. 57, to May Term 1868.</p> <p>This was an action of ejectment to February Term 1867, by John Black and others against Catharine Tricker, for a tavern house and two lots of land, in Liberty township. The premises in dispute had been the property of George Tricker, the husband of the defendant; they had been sold under judgments against him, and on the 19th of November 1857 were conveyed by the sheriff to Francis Jordan, Esq. On the 8th of February George Roadá, by articles of agreement, purchased the property from Mr. Jordan for $713.90, and on the same day Roads and Mi's. Trieker entered into an agreement which recited the sale by Jordan and by which Roads obligated himself to hold the property in trust for her, and to convey it to her whenever she should have paid to him what he had paid or should pay on the purchase, with interest. On the 17th of November 1860 Mr. Jordan by deed endorsed on the sheriff’s deed conveyed to Roads. Mrs. Trieker paid Roads the consideration in several payments, the receipts for which were endorsed on her articles with Roads. The whole amounted to $868.55: the last payment was made July 10th 1862, on which day a deed was made to her for the property by Roads. On the 30th of May 1864 the plaintiffs in the ejectment, trading as J. Black & Co., recovered a judgment against George Trieker for $543.17, under which George Tricker’s interest in the premises was sold by the sheriff to the plaintiffs, and conveyed to them, Eebruary 7th 1867. Mrs. Trieker being in possession of the premises, this ejectment was brought for their recovery.</p> <p>The plaintiffs gave in evidence the sale 'and sheriff’s deed to them; they also gave evidence of the death of George Trieker and rested.</p> <p>The defendant gave in evidence her title as above stated. She then offered to prove “ that George Trieker repeatedly and for a long period of time ill treated and abused her and their family, that he neglected and refused to provide for or support them, that he was constantly addicted to habits of intemperance, profligacy and -drunkenness, causing him to be a burden to his wife, and throwing him entirely upon her industry and energy for his own support; that he repeatedly deserted his wife and children, and totally abandoned and surrendered his marital rights, and that she, Catharine Trieker, by her own good management, industry and energy, and his improvidence and wastefulness, was obliged to and did provide for and maintain herself and family, and by her acquisitions and savings managed to pay for the property in controversy, without any aid or assistance from her husband.” The offer was objected to by the plaintiffs; admitted by the court, and a bill of exceptions sealed. She then gave evidence of the character contained in the offer.</p> <p>The plaintiffs in rebuttal gave evidence that Trieker was in the army for several years during the rebellion; that he sent money, dry goods and groceries home to his wife; that he and his wife lived together; that their bearing to each other was friendly, except when he had been drinking, &c.</p> <p>The plaintiffs by their 1st point asked the court to charge :</p> <p>“ That there is nothing in the Act of May 4th 1855 to prevent a recovery of the plaintiffs in this case, as the defendant cannot claim to be a feme sole trader under said act, the requisite decree never having been made by the court.”</p> <p>The defendant in her 5th point asked the court to charge:</p> <p>“ That if the jury believe that George Tricker, from drunkenness, profligacy or other cause, neglected or refused to provide for his wife, or deserted her, she became and was a feme sole trader under the provisions of the Acts of 1718 and 1855, from the time they shall find any such acts of delinquency or refusal to provide for his wife occurred, and that being so entitled to the privileges of a feme sole trader, if they believe she acquired the property in dispute after such drunkenness, profligacy or refusal to provide for her, -that then she owns and holds the same without any liability to be interfered with by her husband or his creditors, and their verdict must be for the defendant.”</p> <p>King, P. J., in his charge said:—</p> <p>“ The 1st point of the plaintiffs’ and the 5th point of the defendant refer to the same question, and we will consider and answer them together.</p> <p>“ This, in our judgment, is the main question in the case: Without troubling you with a minute inquiry in reference to the Act of 4th May 1855, we say that its plain meaning is this: that where a husband, by reason of habits of drunkenness, profligacy and other causes, neglects to provide for his wife and family, and the wife by her labor, industry and • frugality provides for the family and accumulates property, she is entitled to claim and hold the same as her own, as if she were a feme sole trader, against her husband, his creditors and the whole world.</p> <p>“ In this case the property now in dispute had been sold by the sheriff to Mr. Jordan, who conveyed it to Mr. Roads, who, it is apparent, purchased it for Mrs. Tricker, and kept it for her until she paid for it out of the proceeds of her own labor and management, without any aid or assistance from her husband, when he made a deed direct to her. At common law the earnings of the wife belong to the husband, and any property she might acquire by said earnings would also belong to him; but the Act of 1855 changes this rule under certain facts and circumstances, and the question is now submitted to the jury whether this case is within the meaning of this act. It is not necessary, as argued by the plaintiffs, that before the defendant can claim the benefit of this act, she should be declared a feme sole trader according to the provisions of the 3d section. We therefore refuse to affirm the 1st point of the plaintiffs, and affirm the 5th point of the defendant.”</p> <p>The verdict was for the defendant. Judgment having been entered upon it, the plaintiffs took a writ of error, and assigned for error the portions of the charge given above, and the admission of the evidence objected to.</p>

Writs of error to the Court of Common Pleas of Somerset county: To May Term 1868, Nos. 70 and 71. Two suits were commenced on the 19th of March 1867, by A. H. Coffroth, for the same cause of action, viz.: for his services in procuring the discharge of Daniel Berkey, who had been mustered into the service of the United States as a drafted man in March 1866.

Ho. 46. This was an action of ejectment, brought July 24th 1866, by John B. McLahahan against The Cumberland Yalley Railroad Company. After bringing the suit the plaintiff specified his claim to be for 1501 square feet in Chambersburg, on which a corner of defendants’ warehouse’was built. The premises were part of a piece of land which, on the 13th of December 1839, belonged to Margaret McKnight. On that day she conveyed to Thomas G. McCulloh and George Chambers.

82. This was an action on the case, brought June 24th 1864, by Ilolker Hughes against David Oaks and Samuel M. Linn, trading as Oaks & Linn.

<p>1. Devise to Matthew and Samuel, “ and the heirs of their bodies," charged with keeping their mother for life and with certain legacies. “ Matthew and Samuel have no privilege, nor can in nowise sell or dispose of the land during their mother's natural life, and then not without both be agreed to sell their parts, * * but if either one of them dies wanting heirs of the body, the part that one owns falls to the other then except he be married, and if both die before they marry, their estate is to be equally divided amongst all the legatees." Matthew and Samuel took an estate tail.</p> <p>2. “ Heirs of the body” are strictly and technically words of limitation, and can be converted into words of purchase only by a clearly-expressed intention of the testator.</p> <p>3. An estate tail may be followed by a limitation over on a definite failure of issue, and like a fee, may depend for its continuance on the performance of a condition or the happening of a contingency: but when once created it remains an estate tail until the happening of the contingency or the breach of the condition.</p> <p>4. Either a contingent remainder or an executory devise limited after an estate tail, is cut off by a deed, under the act of January 16th 1799, to bar the tail.</p>

13. This was an action of ejectment, by Gideon Hitechew against A. J. Snively, for a tract of 189 acres of land, commenced May 10th 1866. On the trial before King, P. J., the plaintiff gave evidence by Joseph Thomas, that he (Thomas) had bought the land about 30 years before, from Henry Dull, who was not living on it; it was vacant land. Thomas, five years afterwards, put up a house to the joists; he then sold it to Henry Boyer.

No. 21. The writ of error in this case was to a judgment against John Ringwalt and others, garnishees in an attachment-execution, in which George Brindle was plaintiff, and Jacob H. Strack defendant. On the 5th of January 1867 Brindle recovered a judgment against Strack for $299, and on the same day issued an attachmenOexecution against him; Ringwalt and others, being garnishees. The writ was served on the garnishees January 7th.

Appeal by Joseph Single from the decree of the Register’s Court of Oumberland county: Of May Term 1868. John Single died intestate and unmarried December 7th 1867, leaving to survive him three sisters of the whole blood, viz., Barbara, wife of David Miller, Catharine, wife of Daniel Miller, and Mary, wife of John Smith; and four brothers and one sister of the half blood, viz., Jacob, Isaac, George, Joseph and Susanna, wife of Nathaniel Givens.

<p>Error to the Court of Common Pleas of Cumberland county: Of May Term 1868.</p> <p>On the 15th of January 1862, Michael G. Beltzhoover obtained a judgment against David H. Vogelsong for $11,000. On the 17th a fi. fa., and on the 25th an attachment-execution were issued on this judgment. To the fi. fa. the sheriff returned that he had levied on certain personal property, out of which $300 worth were claimed and set apart for the defendant: the plaintiff received between $4000 and $5000 under the fi. fa. On the 29th of January 1862, the attachment was served on the defendant and on Edward Demmy, with other garnishees. Demmy was the owner of a tract of land charged with the payment of $2051.31, to the heirs of John Vogelsong, deceased, at the death of his widow. The defendant was one of the heirs, and entitled to one-tenth of that sum. The widow died April 20th 1867. On the 25th of April interrogatories were filed, to which Demmy answered, stating the foregoing facts as to the estate of John Vogelsong : he also pleaded payment, &c. Vogelsong, the defendant, claimed the fund in Demmy’s hands under the Exemption Laws. The court (Graham, P. J.) charged the jury that the defendant having received $300 of goods under the fi. fa., could not obtain any under the attachment, and that the claim was too late. The verdict was for the plaintiff for $205.13.</p> <p>The defendant took a writ of error, and assigned the charge of the court for error.</p>

55. This was an action of assumpsit to April Term 1866, by John Albert, Jr., against Zacharias Batdorf. On the trial, before Pearson, P. J., A. M. Seltzer, for plaintiff, testified, that in 1854 the plaintiff and defendant settled their accounts in his presence; the settlement resulted in a balance in favor of the plaintiff of from $3700 to $3900.

64. This case originated in the court below from an appeal by the defendant, The Ocean Oil Company, from the settlement of the Auditor-General and State Treasurer, made April 4th 1867. The company made a return of $311,954.14, as their net earnings or income for the year ending November 1st 1866, on which they were taxed at the rate of 3 per cent., making $9358.74.

95. This was a scire facias on a mechanics’ lien to November Term 1863 by William Miller, who survived David Eellenbaum, against the assignees of Christian Hershey and wife, owners, and Elias Doner, fcontractor.

<p>1. In a bequest, tbe words “in case,” imply a condition as explicitly as “ if,” “ upon” and the like, and express a condition.</p> <p>2. Prirnfl, facie the gift of the product of a fund is the gift of the product in perpetuity, and, consequently, is a gift of the fund itself.</p> <p>3. A testator directed his executors to invest in stock or real estate $1000, the income to be applied to the support and education of his nephew, “ until he attains the age of twenty-one years; and in case he live to attain that age,” he gave the stock, &c., to him and his heirs. There was no bequest over. He gave to other legatees the income of funds during their lives, to their children at their death, and if they left no children, over. He gave the residue of his personal estate to three nieces — to one.to be paid “ only in case” she attained twenty-one, otherwise to the other two. Held, that the legacy to the nephew was vested, and on his death, although under twenty-one, passed to his representatives.</p>

5. This was an action of debt, by Henry Rouch and Elizabeth his wife, against Henry Zehring and Matthew Mitchell, executors, &c., of Jacob Zehring, deceased, commenced September 9th 1863. The plea was “non est factum.” The cause of action was the following note :— “ $1500.

58. This was an action of assumpsit by the Mechanics’ Bank against George J. Shoemaker. The writ issued January 1st 1866. The plaintiff was the holder and the defendant the endorser of the following promissory note:— “ $800.00. Harrisburg, March 8, 1865. Sixty days after date I promise to pay to the order of George J. Shoemaker, at the Dauphin Deposite Bank, Eight Hundred Dollars, without defalcation, for value received. J. R. Craweord. Endorsed: George J. Shoemaker.

<p>1. It is esteemed unfair to select a single sentence or two in a charge and insist on it as error, without reference to other portions which explain its meaning, or exhibit its bearing.</p> <p>2. Where parties have presupposed facts or rights to exist as the basis of their contracts, which did not, such contracts made in mutual mistake will be relieved against.</p> <p>3. The principle in such cases is, that the party has been misled to his hurt, in trusting to the truth of the other in a material matter, where he has had no opportunity of satisfying himself of its reality, or has been prevented from taking the steps necessary to verify the assertion.</p> <p>4. When a party asks a chancellor to restrain the inequitable use of a legal title, he must show such facts as entitle him to rescind on the ground of either mistake or fraud.</p> <p>5. The defendant who had given a note for a share in a tract of oil land defended, on the ground of misrepresentation. The judge below, after referring to the evidence and the excitement in relation to such land, charged: “ If Watts, the defendant, was seized with this oil fever, like multitudes of others, and was induced to subscribe by representations that Campbell, the agent of the owners of the land, believed to be true, a persuasion that was snared by the best informed men who visited and examined the territory, he cannot allege that he was deceived and defrauded by such representations. But if you can find evidence that Campbell made these representations knowing them to be false, and that he made them by the directions and authority of the owners, and for the purpose of obtaining Watts's note, and that Watts signed the paper and gave the note in consequence of these false representations, you will be warranted in rendering a verdict for the defendant.” Held, not to be error.</p> <p>6. Miles v. Stevens, 3 Barr 21, explained.</p>

<p>Error to the Court of Common Pleas of Dauphin county: Of May Term 1868, No. 88.</p> <p>This was an appeal by Levi Zeigler, treasurer of Cumberland county, from the settlement of his account by the auditor-general and state treasurer, February 12th 1867. In the settlement he was charged with the amount of hucksters’ licenses in Cumberland county, $130, less his commissions, $6.50, being $123.50.</p> <p>The licenses were payable under the Act of May 18th 1866, Pamph. L. 1097, relating to “huckstering in the counties of Cumberland,” &c. The 1st section provides that—</p> <p>“ It shall not be lawful for any person or persons to huckster * * within the limits of the counties of Cumberland, &c., without first taking out an annual license from the treasurers of said counties respectively; which said licenses the said county treasurers are hereby authorized to grant, to all applicants, upon the payment of the following sums of money,” &e. Section 2d enacts that any person violating the provisions of the act shall be guilty of a misdemeanor, and on conviction shall pay a fine of $100, one half for the use of the county and the other half to the informer, and in default of payment shall be imprisoned, &c.</p> <p>The question submitted by a stated case for the opinion of the court was whether the licenses collected by the defendant were payable to the Commonwealth.</p> <p>Pearson, P. J., entered judgment for the Commonwealth for $137.29.</p> <p>The defendant took a writ of error, assigning for error the entering of judgment against him.</p>

<p>1. In a suit against the owner of houses hy a lumber merchant for lumber furnished to the contractor, evidence that at a settlement between the contractor and owner, the contractor admitted the owner’s boots to be correct, was held, to be inadmissible.</p> <p>2. Materials furnished on the credit of a building, are a sufficient consideration for the owner’s subsequent promise to pay.</p> <p>3. A benefit derived from unsolicited services creates a moral obligation, which is a sufficient consideration for an express assumption, but will not raise an implied assumption.</p> <p>4. Materials for a building were furnished to a contractor on the credit of the building, and charged to him: there was evidence that the owner promised to pay for them: Held, that if the promise was a direct and absolute engagement to pay on a consideration moving to himself, and at the time the claim was a lien, it was the debt of the defendant’s own building, whose payment could be enforced against it, and although not personally his debt, his promise was in relief of his property — not the debt of another, and not within the Act of April 26bh 1855 (Frauds).</p>

<p>1. “ I give to Samuel the tract-, &c., two horses, &c.; I bequeath to Margaret §300, one bed and bedstead, to make her equal with the rest; I leave to Daniel’s children 830, to be divided equally between them; all my money or bonds to pay my debts, and then all my personal property to be sold and the money to be equally divided,” &e. There was a deficiency of personal estate to pay all the legacies. Held, that Margaret’s bequest was not charged on Samuel’s land.</p> <p>2. No particular language is necessary to create a charge on land : the intention to charge is to be carried out whenever it is discoverable from anything in the instrument.</p> <p>3. Commonwealth v. Shelby, 13 S. & R. 354, English v. Harvey, 2 Rawle 309, explained.</p> <p>. 4. There is no consideration for the promise of an executor to pay a legacy beyond the assets in his hands. The consideration and promise must be coextensive.</p> <p>5. An executor cannot be made liable de bonis propriis on an oral promise, on the mere consideration of assets: such promise would be within the Act of April 26th 1855 (Frauds).</p>

49. This was a bill filed by Samuel Ort and others against Thomas Mayes and others, directors of Granville School District, Mifflin county.

<p>1. The tax chargeable by the acts of April 29 th 1844, § 33, and April 12th 1859, § 1, on the capital stock of corporations although measured by the rate of their dividends, is not a tax upon dividends.</p> <p>2. Companies paying such tax and none on dividends, are liable to be taxed on net earnings under the Act of April 30th 1864, $ 2.</p>

43. This was an action on the case, No. 41, to April Term 1867, in which Edward McCafferty was plaintiff, and George Guyer, John C. Dickson and Alexander Ale defendants. The following facts appear in a case stated, filed February 2d 1867. The plaintiff resided in Huntingdon county, Pennsylvania, and was liable to military service in the army of the United States.

At Philadelphia. Error to the Court of Common Pleas of Oambria county: Of May Term 1868. This was an action on the case commenced, November 20th 1866, by David Gillis against the Pennsylvania Railroad Company for injuries sustained by him by the breaking down of a platform of the defendants at the Johnstown station, Cambria county. The declaration contained four counts.

199, to January Term 1868. This was an action of assumpsit brought January 13th 1865, by The Farmers’ arid Mechanics’ Bank of Easton the holder, against Solomon Schafer, as endorser of the following note:— “ $1300 Nazareth, October 19th 1863. “ Sixty days after date I promise to pay to the order of Jacob and Joseph Schafer, at The Farmers’ and Mechanics’ Bank of Easton, Thirteen Hundred Dollars, without defalcation, for value received. “Benjamin Schafer.” “ Endorsed —…

<p>1. Notice to the widow and heirs is not necessary before awarding an inquest in partition in the Orphans’ Court. But it would be better if the court would direct a rule on all the parties to show cause before awarding the inquest.</p> <p>2. It is not necessary that the rule to accept or refuse should be served by the sheriff, though he may be required to do so.</p>

61. This was an action of ejectment for 10 acres of land in Yernon township, at the suit of James Horner and Mary M. his wife and others, against E. E. A. Wilson. The writ was issued June 2d 1865. The plaintiffs were heirs of John Davis, who died in 1839, and who, they claimed, had settled on the land, &c., shortly prior to 1800.

128. This was an action of ejectment, brought by Frederick Maul and Mary E. bis wife (late Jacobs) in ber right, against John Rider and Philip Deitrich, for 300 acres of land in Winslow township, Jefferson county. The writ was issued July 12th 1860. At tbe trial a nonsuit was suffered as to Deitrich, who claimed 100 acres of tbe land in severalty. This case was tried twice before, and tbe judgment at each trial reversed by tbe Supreme Court.

4, to October and November Term 1868. This was an action of assumpsit, at the suit of W. L. White against A. W. Barry, commenced July 12th 1866, upon the following instrument of writing :— “ This is to certify that I will pay W. L. White $250 for town lot No. 144, on Seneca street, on or before June 1866.

<p>1. Where the state has granted a public work to a corporation, the grantees are discharged from those duties to the public growing out of the work which the state had performed before the grant, unless there are express words in it imposing them on the corporation.</p> <p>2. The legislature can compel a municipal corporation within whose bounds public bridges are, to construct and keep them in repair.</p> <p>3. The charter of a municipal corporation is not a contract within the prohibition in the bill of rights.</p> <p>4. The Act of March 16th 1864, requiring the Erie Canal Company to rebuild and repair bridges over their canal, is unconstitutional.</p>

125, to October and November Term 1867. This was an action of assumpsit by William L. Scott and others against M. W. Janes, commenced December 4th 1865. The plaintiffs declared upon a guaranty by defendant for the fulfilment of a contract of one Burke to furnish the machinery, &c., and dig an oil-well for them: they averred that Burke had not fulfilled his contract and was insolvent.

7, to October and November Term 1868. This was an action of covenant, commenced April 24th 1867, by Abraham Tourtelotte against M. P. Kelsey and Richard O’Brien. The claim was for one month’s rent, under the lease hereafter mentioned, of premises belonging to the plaintiff. The plaintiff gave the following evidence by his witnesses:— G-.

38. The plaintiff in error, John Gr. Brandon, was treasurer of Porest county for 1858 and 1859. The county auditors settled his account, finding a balance against him. On the 3d of April 1862 an Act of Assembly was passed authorizing a re-audit of his accounts. In pursuance of this act his accounts were again audited, and on the 30th of July a balance of $528.92 found to be due from him to the county.

<p>A vendor by articles dated in July sold land, possession to be given in March, he to give “ a good and sufficient title unencumbered.” Taxes were levied on the land in the name of the vendor after the articles and before the time of giving possession and were paid by him afterwards. Held, that he could not recover the taxes from the vendee.</p>

<p>Appeal from the decree of the Court of Common Pleas of Jefferson county, in the matter of the estate of David Frank, assigned for the benefit of his creditors. Of October and November Term 1868, No. 140.</p> <p>The appeal was taken by Meyer Frank, the assignee, and M. and H. S. Frank, creditors of the assignor.</p> <p>The assignment was dated February 4th 1861.</p> <p>The assignee having filed his account August 14th 1863, to which exceptions were filed, G. A. Jenks, Esq., was appointed auditor to examine and report upon the exceptions, and also to report distribution.</p> <p>The account, exceptions and report included very many matters not important to notice; the facts bearing upon those considered by the Supreme Court are as hereafter stated.</p> <p>Part of the property belonging to the assignor at the time of the assignment was a piece of real estate known as “the Sitz property.” It was sold by the sheriff, September 5th 1862, purchased by It. Arthurs, Esq., attorney for the assignee, for about $2111, and sold by him at private sale on the 26th of May 1863, at an advance of $1088.90, which he gave to the assignor. Mr. Arthurs had given bail for the assignor, and took the management of the whole estate under an irrevocable power of attorney.</p> <p>It appeared further that there were debts due by the assignor amounting to $5247.61, which it was claimed had been paid at a considerable discount. Mr. Arthurs testified that some were paid at 33 per cent, on their face, some at 40 per cent., and some at 60 per cent, none of them above 60 per cent. “ I think we averaged 45 or 50 per cent. I mean I bought them at that. Sometimes I had funds of the assignor in my hands, and sometimes my own; as a general thing I bought them with funds of the assignor. I had the funds of the assignor and my own all mixed up. * * * I charged the assignor only with the amount I paid out when I bought the claims at a discount.”</p> <p>There was also a judgment against the assignor in favor of S. McClurkin, amounting to $399.43, for which $371.36 were paid. This judgment was also secured by a mortgage on other property, worth about the amount of the judgment. Mr. Arthur testified: “ The McClurkin judgment was really contracted for and bought by Meyer Frank the assignee, we claim no appropriation at this time.”</p> <p>Another claim was a judgment of Babeta Frank against the assignor, dated February 10th 1859, for $700 with interest. This judgment was assailed before the auditor as being without consideration.</p> <p>The auditor allowed the assignee credit for $2360.42, on debts amounting to $5247.61, being at the rate of 45 per cent. He charged him with $1088.90, the advance received on the sale of the Sitz property; he reported that $993.65, being 93J per cent., should be paid on Babeta Frank’s judgment, amounting to $1062.73.,</p> <p>He made alternative reports including and excluding respectively the McClurkin judgment.</p> <p>As to the increase in the price of the Sitz property he reported: “ That it was bought about a year and seven months after the date of assignment, on execution against the assignee; that R. Arthurs during about a year of that time was virtually assignee; that during that time he had control of about $20,000 of assets of assignee, a large amount of which could easily have been reduced to money, if they were not; that no debts were paid during that year and seven months, and if the assignee or R. Arthurs had no means to pay the judgment on which the property was sold, it must have been their own default, and he should account for the excess for which he sold it, and over what he bought for. But if he had funds of assignee in his hands, and it is a fact that he mixed the assignee funds up with his own, and if he bought with such funds, it should be for the benefit of the creditors. Besides, R. Arthurs was reimbursed his outlay, if any, either in part or in whole, out of funds of assignee, and finally settled with assignee and D. Frank, giving them the benefit of the speculation.”</p> <p>The report of the auditor was filed August 12th 1868, and after exceptions, was confirmed by the court September 19th 1868, “ except the McClurkin judgment.”</p> <p>On the same day the petition of M. and H. S. Frank was presented, to wit:—</p> <p>“ That they were creditors of David Frank at the time the judgment-note was given on which there is a judgment entered in this court, in favor of Babeta Frank. That said note was given by said David Frank as a bounty or gift in case she would marry his son, Henry Frank, which is so testified to by her in the audit to distribute the money in the hands of Meyer Frank, the assignee of David Frank; that the said David Frank was insolvent at the time the note was given.</p> <p>“ Tour petitioners ask the court to open this judgment, direct an issue to try the validity of said judgment, and if fraudulent against the creditors and especially against M. and H. S. Frank, that it shall not be entitled to any portion of the assets of the assignment of David Frank.”</p> <p>The issue was refused the same day. The errors assigned were, refusing the issue, dismissing the exceptions, and excluding the McClurkin judgment.</p> <p>The foregoing statement with the opinion of the Supreme Court will give an understanding of the case.</p>

17, to October and November Term 1868. In tbe court below a judgment was entered on tbe 23d of January 1866, in favor of tbe county of Crawford against Charles Cannell and F. W. Ames] and five others, bis sureties, for $10,564.08, on a bond with warrant of attorney, dated April 29th 1865.

136. In the matter of the distribution of the proceeds of the sheriff’s sale of the personal estate of Hutchings & Willman. The appellant was R. S. McAllister, Esq. The matter had been referred to William J. Morris, Esq., auditor, who found that the amount of money in court, after deducting costs and expenses of audit, was $7471.07. The claims made upon the fund were as follows, viz.: Gridley & Gray, landlords of defendants, for rent, $1500.

13, to October and November Term 1868. This was an action of assumpsit to May Term 1866 by The Thompson Oil Company against Ambrose Snow, Joseph S. Burgess, Theodore Wright and W. S. Woods. The plaintiffs declared on the common counts. The claim filed was for a large quantity of crude oil, received by defendants from September 16th till October 11th 1864, and for cash received by the defendants for oil of the plaintiffs sold by them; the whole claim amounting .to $27,551.78.

78, to October and November Term 1868. This was an action on the case, to November Term 1866, by D. O. Wing against Nelson Waters, for negligence of the defendant, which resulted in the death of the plaintiff’s horse. On the 3d of October 1866, in daytime, a number of young men were riding on horseback from Saegertown towards Mead-ville, on the public road: one of them, the son of the plaintiff, was riding the horse which was killed.

46, to October and November Term 1868. This was an action of ejectment, by John Y. Chapman against Emeline Chapman and Joseph Gansamer, for lot No. 18 in the village of Fairview, Erie county. The plaintiff claimed under a ground-rent lease for 999 years.

Appeal by Jacob Edmonds from the decree of the Court of Common Pleas of' Venango county: In Equity: No. 132, to October and November Term 1868.

<p>Error to tbe Court of Common Pleas of Erie county : No. 18, to October and November Term 1868.</p> <p>Tbe proceedings originated in tbe court below by tbe entry of a claim by “Tbe City of Erie against In-lot No. 2575, McMurray’s beirs are owners or reputed owners, David Kennedy, surviving executor; for sidewalk improvement tax, being for furnishing materials and grading, and laying 190 feet brick sidewalk in front of said property on said Fourth street, and amounting to tbe sum of $204.09, with 10 per cent, additional, and interest on tbe whole amount from tbe 25th day of November 1865, as per Act of Assembly.”</p> <p>Tbe bill of particulars amounted, November 25th 1865, to $224.50. To this was appended an affidavit by tbe street superintendent of tbe correctness of tbe claim, and tbe service of a notice of tbe assessment on Kennedy, tbe executor, accompanied by tbe claim, and that tbe work was approved by tbe sidewalk committee. Judgment as per Act of Assembly “ was entered July 17th 1866,” for ■“ furnishing materials, and grading and laying 190 feet brick sidewalk in front of said property on said Fourth street, and amounting to $204.09, with 10 per cent, additional, with interest on tbe whole amount from tbe 25th day of November 1865. Bill of particulars herewith filed.” On tbe 10th of September a rule to open tbe judgment was granted, which was made absolute December 6th 1866, and “ defendant let into a defence only as to tbe quality and value of tbe work done.” Tbe foregoing contains tbe substance of tbe record in tbe Common Pleas.</p> <p>The lien was entered by virtue of an Act of Assembly passed April 14th 1863, Pamph L. 401. The act empowered the city authorities to provide by ordinance for the paving of sidewalks, &c.; the ordinance to be published and recorded, and after recording, the councils by resolution might order the paving of the sidewalks, specifying the kind of pavement and the time for doing the work, the superintendent to give notice in writing to the owners or their agents of the kind of pavement, &c., required, and the time within •which it should be finished. If the owner after notice shall neglect to do the work he shall be liable to the penalties prescribed by the ordinances of the city, and the city may do the work, and the cost, &c., shall be a lien on the lot, and shall be filed and collected as provided by law for filing and collecting liens for paving in said city; and if not paved in 60 days 10 per cent, to be added, &c. The law on the subject of filing and collecting liens, referred to in the Act of 1863, is contained in the Act of May 1st 1861, Pamph. L. 615, which provides that after some preliminary steps the collector shall make out a written statement of the amount of tax and description of the property, with an affidavit of their correctness, and that proper notice had been given; and the prothonotary “ shall enter judgment on the same,” &c., which “shall be collected by execution as judgments on mortgages are now collected.”</p> <p>On the trial of issue, before Johnson, P. J., the defendants offered to prove that there was no record made of any ordinance for repaving sidewalks, nor of its publication. On objection the offer was rejected by the court, and a bill of exceptions sealed.</p> <p>The defendants’ points were:—</p> <p>1. The plaintiff is not entitled to recover, because it did not show an ordinance requiring the pavement in front of said lot No. 2575, nor did the plaintiff show that any such ordinance was ever recorded.</p> <p>The 2d point was in effect the same as the 1st.</p> <p>3.. There is no presumption that the plaintiff complied with the provisions of the Act of Assembly of the 14th day of April 1863, previous to the entry of the judgment, and without said provisions being complied with previous to the entry of judgment, it is void.</p> <p>4. Refusing to open the judgment further than to let the defendant into defence “ as to the quality and value of the work done” does not relieve the plaintiff from proving the preliminary action of councils required by said Act of Assembly, and not having done so plaintiff cannot recover.</p> <p>The court answered all the points in the negative.</p> <p>The verdict was for the plaintiff for $150.</p> <p>The defendants took out a writ of error, and assigned for error the rejection of their offer of evidence, and the answers to their points.</p>

71, to October and November Term 1868. This was an action of debt, commenced March 5th 1867, by T. Webster, for the use of himself and William Cross, against The Manhattan Insurance Company. The suit was brought on a policy issued by the defendants, August 14th 1866, to T. Webster, insuring him against loss by fire, amongst other things, $4000 on 10,000 pounds of wool. The wool was destroyed by fire September 13th 1866.

44, to October and November Term 1867. The action was trespass by D. & C. Moore against the school directors of Clearfield district, brought before a justice of the peace, and removed by appeal into the Court of Common Pleas to June Term 1866. The facts necessary to an understanding of the questions decided appear to be these.

93, to October and November Term 1868. John W. Green, tbe appellant, guardian of Ann Jane Dickey (now Summerville), filed bis account November 6th 1863, by which it appeared there was a balance of $285.86 in bis bands due bis ward. To this account exceptions were filed by tbe ward, wbo bad arrived at age in 1861, which, with the account, were referred to John W. Rohrer, Esquire, as auditor.

94, to October and November Term 1867. This was an action on the case brought, May 6th 1862, by Dennis O’Donnell against The Allegheny Valley Railroad Company. The case was in the Supreme Court before, and the judgment reversed: 14 Wright 490. The plaintiff was-a journeyman carpenter in the employ of the defendants under Edward Liston, the master carpenter.

<p>1. In a suit against a borough on a bounty bond, there was evidence that its consideration had been paid by a committee of citizens who obtained it as a loan to the borough, to a receiver appointed by the council. The fact that the borough afterwards recognised the payment and issued the bond, was an admission that the payment was well made, that the persons receiving had authority and that the money was properly applied. Per Buffington,</p> <p>2. The bond being under seal implied a full and valuable consideration, and it .was to be presumed that the money had been paid. To rebut this would require evidence to satisfy the jury that it had not'been paid. Per Id.</p> <p>3. The motives of members of council or the influences under which they acted, cannot be brought to nullify an ordinance within their corporate powers duly passed in legal form at a meeting regularly convened.</p> <p>4. The legality of the acts of legislative or corporate bodies cannot be tested by the motives of individual members, or of the adventitious circumstances they may lay hold of to carry their measures.</p> <p>5. In a suit by the holder of the bond, evidence that the money had been paid to a receiver whilst there was a solvent borough treasurer, was inadmissible, if the money went to the use of the borough and was ratified by the corporate authorities.</p>

<p>1. It is the duty of a railroad commny as of a natural person, to exercise its rights with a considerate and prudent regard for the rights and safety of others.</p> <p>2. It is not a justification that the act producing the injury was lawful or done in exercising a lawful right, if the injury arose from doing it negligently. u ^________________'59</p> <p>3. The engine of defendants having given no notice of' its *approacb. whistled under a bridge whilst a traveller was passing over it: his horses tools fright, ran off and injured him. Held, that if danger might be reasonably apprehended, it was the duty of the company to give some warning.</p> <p>4. If it would have been negligence in the traveller to drive upon the bridge just as the train was about to pass under it, had he been aware of its approach, he was entitled to notice and it was the duty of the company to give it.</p> <p>5. Negligence is always a question for the jury, when there is any doubt as to the facts or the inferences to be drawn from them.</p> <p>6. If danger to the person or property of others at any point may be reasonably apprehended, or is likely to result from the running of trains without notice, it is the duty of the company to give notice.</p> <p>i. It is a duty to give notice whenever danger may result to persons rightfully travelling on a public road that crosses a railroad, whether at grade or under or over the railroad, when danger would result from the want of notice.</p> <p>8. Sounding the whistle under a bridge as a traveller was passing over, which caused the horses to run away through fright and injure him, was a sufficiently proximate cause of injury to create a liability on the company.</p>

145, to October Term 1867. An indictment was found May 15th 1867, in the Court of Quarter Sessions of Westmoreland county, against John Campbell and others.

133. This was an action of ejectment for 180 acres of land in Conemaugh township, commenced January 2d 1865, by John Shirley and Thomas Shirley against Christopher Shirley.

47, to October and November Term 1868. This was an action of assumpsit, commenced on the 14th of November 1867, in which Edgar Cowan was… Held: not the firm. 6. The lease or license is void under the Statute of Frauds and Perjuries, the supposed lessees never having entered, and the supposed lease not being signed by the parties to be charged therewith, even Reese does not sign it for himself within the meaning of the statute, because he sets forth that the firm had signed…

16, to October and November Term 1868. In the court below judgment was entered on the 18th of April 1866, “ John Pringle, now for the use of Greorge W. Pringle, v. H. Gr. Patton and Mary Patton. Debt $72.00.” The judgment was entered on a single bill, dated March 23d 1864, with warrant of attorney to confess judgment for $72, from H. Gr. Patton and Mary Patton to John Pringle or order, payable on the 23d of September 1866.

<p>Writs of error to the Court of Common Pleas of Westmoreland county: No. 149, to October and November Term 1868.</p> <p>1. The North Western Railroad Company was incorporated on the 9th of February 1853, under the general railroad law of 1849.</p> <p>On the 1st of July 1856 the company, under the authority of an Act of Assembly, executed a mortgage on their whole road, all its rights, franchises, &c., to Andrew M. Eastwick and others, trustees, to secure bonds for $1,000,000, issued by the company. To August Term 1857, on the application of James R. Johnston, the defendant in error, viewers were appointed to assess damages sustained by him for the taking and occupying his land for the purposes of their road. The jury awarded him $500; judgment was entered on the award November 19th 1859.</p> <p>Under proceedings in the Supreme Court, in equity, the railroad was sold on the 5th of July 1859 to William L. Hirst, Esq., in trust for the bondholders. By virtue of an Act of Assembly of March 22d 1860, the purchasers were incorporated under the name of the Western Pennsylvania Railroad Company; Mr. Hirst conveyed the property and franchises of the North Western Pennsylvania Railroad Company to the new company. By the 43d section of the act incorporating the Western Pennsylvania Railroad Company it is provided: “That all.unpaid damages which have accrued to landholders by reason of the original construction of said road, shall remain for ever, until paipl, a lien upon said road.”</p> <p>On the above judgment a scire facias was issued July 10th 1865, at the suit of Johnston against the North Western Pennsylvania Railroad Company with notice to the Western Pennsylvania Railroad Company; in which a ease was stated embodying the foregoing facts; and by which it was agreed that if the court should be of opinion that the plaintiff was entitled to recover against the Western Pennsylvania Railroad Company, judgment to be entered in his favor for $500 with interest, otherwise judgment to be entered for the Western Pennsylvania Railroad Company. The court entered judgment, October 8d 1865, for the plaintiff according to the case stated.</p> <p>2. On the 21st of September 1857, judgment was entered in favor of John Stewart against the North Western Railroad Company on the report of viewers for $2458.33 damages sustained by him by reason of the taking and occupying of his land by the company. On the 29th of November 1867, Stewart issued a scire facias on this judgment in the same form as that issued by Johnston. The Western Pennsylvania Railroad Company filed an affidavit of defence, averring the same facts as those set out in the case stated above mentioned.</p> <p>They also alleged that the lien of the judgment had been discharged by the sale under the mortgage and that plaintiff’s remedy was upon the fund raised from the sale, &c.</p> <p>The court entered judgment, October 3d 1868, for want of a sufficient affidavit of defence; it was liquidated at $4086.15.</p> <p>The Western Pennsylvania Railroad Company took a writ of error in each case, assigning for error the entering judgment for the plaintiff.</p>

<p>1. S. and D., married women, owned land, and in 1839 made a deed for it to P., their husbands not joining. D. died in 1845, her husband in 1848. S. died in 1848, her husband in 1851. P. had adverse possession from 1839 till 1864, when the land was sold by the sheriff as his property to II. The heirs of S. and I). brought ejectment in 1866. Held, that they had been barred by the Statute of Limitations, at the end of ten years from the death of the husbands respectively.</p> <p>2. The 4th section of Act of March 26th 1785 (Limitations), examined and construed.</p> <p>3. If a person is under no disability when his right first accrues, his right of entry or action, and, if he dies, that of his heirs, will be barred by twenty-one years’ adverse possession.</p> <p>4. If a person is under any of the disabilities mentioned in the act when his right first accrues, he or his heirs have ten years after the removal of the disability to make entry or bring ejectment, although twenty-one years may have previously expired.</p> <p>5. If the ten years after the removal of the disability expire before the twenty-one years, the right of entry or action will not be barred until the expiration of the twenty-one years.</p> <p>o. If a person under disability when his right first accrues, dies before it has ceased, his heirs have the same time to make entry, &e., as he would have had if he had survived the disability.</p> <p>7. The heirs of a married woman who dies, leaving her husband, have only the same time to make entry, &c., after the end of the husband’s tenancy by the curtesy, as the wife would have had, had she survived the husband, though they may be under disability when their right of entry accrues.</p> <p>8. Marple ». Myers, 2 Jones 122, examined and criticised.</p>

<p>1. An award in a reference under the 6th section of the Act of June 16th 1836 (Arbitration), has not the effect of judgment unless approved by the court and judgment entered on it.</p> <p>2. The Act of March 21st 1806, relating to arbitrations, is supplied by the Act of 1836.</p> <p>3. A judgment against an administrator is conclusive as to personal estate; but primfi, facie as to real estate.</p> <p>4. Heirs and devisees may question any item included in a judgment against an administrator.</p>

<p>1. A devise was “ I direct that my son Joseph is to have my farm at my death for §6000; upon payment of the same as hereinafter stated, I direct my executors shall make him a deed for the same. $3000 to be secured in said farm, the interest to be paid to my wife (during widowhood), the first §3000 * * to be divided between my children * * the $3000 remaining in the farm also to be equally divided, between my children at the death of my wife * * my son Joseph claiming an equal share in the $6000. * * Joseph to be allowed a reasonable time to pay the heirs their legacies, with interest from my death, should he accept or purchase the farm upon the terms,” &c. If he refused to purchase the executors to sell the land. Held, that the legacies were a charge on the land.</p> <p>2. The “reasonable time” for payment by the devisee, was one year from the death of the testator.</p> <p>3. The will was dated August 17th 1865, and the $6000 was to be paid “ in gold or its equivalent in lawful money of the United States.” Held, that the payments were to be made at the commercial value of gold when they respectively fell due.</p> <p>4. In proceedings in the Orphans’ Court to enforce payment of the legacies the executors should be made parties, and all the legatees may join in one petition.</p> <p>5. Granting an issue under the 55th section of the Act of March 29th 1832 (Orphans’ Courts), is in the discretion of the Orphans’ Court.</p>

<p>Error to the Court of Common Pleas of Armstrong county: No. 142, to October and November Term 1867.</p> <p>This was an action of debt at the suit of the Commonwealth for the use of Jane McGarvy against Joseph B. Smith and others, who survived R. M. Kiskaden, sheriff of Armstrong county. The suit was on the official bond of the sheriff, dated November 25th 1865, and was commenced January 5th 1867.</p> <p>John McNutt, on the 7th of June 1866, was convicted of fornication and bastardy with Jane McGarvy. The sentence was as follows:—</p> <p>“And now, to wit, 9th June 1866, the court sentence defendant, John McNutt, to pay a fine of six cents, that he pay for lying-in expenses $25, and the further sum of $100.56 for support of the child from its birth to the present time; and that for the future support of the child he pay $1.25 per week for the period of three years, payable semi-annually; that he give bond with one or more approved securities to the overseers of the poor of Washington township in the sum of $300, conditioned that he indemnify and save harmless the said township from all future costs and charges on account of the support of said child; that he pay the costs, and be in custody till this sentence is complied with.”</p> <p>There was evidence on the part of the plaintiff that in the latter part of July 1866 McNutt had been permitted to go out of the jail; that in August he had been permitted to take horses to water; was allowed to be in the court-house, and had been out of the borough of Kittanning.</p> <p>The defendants gave evidence that on the 10th of September 1866 McNutt was discharged from custody by the court, he having given bond to take the benefit of the insolvent laws.</p> <p>On the 4th of March 1867 McNutt having given notice according to the order of the court, to the prosecutrix amongst others, and having complied with the requirements of the Act of Assembly, was discharged as an insolvent.</p> <p>They proposed further to prove that “ McNutt was before,' and at the time of his sentence, utterly insolvent, and so continued until the present time, and that no loss accrued from the escape.”</p> <p>The evidence was rejected, and a bill of exceptions sealed.</p> <p>The defendants asked the court to charge</p> <p>“ 1. The sentence did not contemplate close confinement, and if the jury believe from all the evidence that John McNutt was in custody and under the control of Sheriff Kiskaden from the time of the sentence until he was discharged by the court, it was a compliance with the sentence, there was no escape, and the plaintiff cannot recover.</p> <p>2. This being an action of debt against Joseph B. Smith and others, as co-obligors, on the official bond of R. M. Kiskaden, as sheriff, without joining either Kiskaden or his legal representatives, the plaintiff cannot recover.</p> <p>3. An action on the official bond of the sheriff against his sureties, cannot be maintained without first fixing the liability of the sheriff.</p> <p>4. „ McNutt having applied for the benefit of the insolvent laws, and notice of the intended application having been given to plaintiff, she permitting his discharge without opposition, is now estopped and cannot set up any right of action that accrued prior to it. ■</p> <p>5. The discharge of McNutt under the insolvent laws of this state, by a court of competent jurisdiction, is conclusive that all the requirements of the Act of Assembly, including imprisonment for three months prior to his discharge, have been complied with, and the regularity of such discharge cannot be inquired into in a collateral proceeding. She can therefore show no escape within three months prior to the 10th day of September, and cannot recover.</p> <p>6. The sentence of the court does not show to whom any of the lying-in expenses, or expenses for the support of the child, are to be paid, and under the sentence she has not been damnified, and no right of action having accrued to her, she cannot recover.</p> <p>7. Even if the jury believe from all the evidence in the cause that Sheriff Kiskaden permitted an escape, yet if it resulted in no damage to the plaintiff by reason of the insolvency of McNutt, the plaintiff cannot recover.</p> <p>8. The measure of damages is the amount actually lost by plaintiff by the misconduct of the sheriff, and the jury are to be the judges of that fact, under all the evidence of the cause.</p> <p>9. The action for an escape being a personal action against the sheriff, dies with the officer, and the plaintiff failing to fix the liability of the sheriff during his life, no action can be maintained against his sureties after his death.”</p> <p>The court (Buffington, P. J.) answered all the points in the negative..</p> <p>He further charged: * * “If'you believe he was permitted to run at large, and was not detained in custody, it was a dereliction of duty, and the sheriff would be liable to make good the loss. [It is contended by the defendants, however,, that even if there is a cause of action, the plaintiff can only recover the loss actually suffered; and as the prisoner was insolvent the loss was nothing and the damages ought only to be nominal. We think ■otherwise. Were it an arrest on mesne process the position might be correct, but in an action of debt on final process the rule is •different; and the amount for which the prisoner was committed is the measure of the rights of recovery.] [The defendants’ ■.counsel has ingeniously interposed several objections to a recovery, none of which can we recognise as valid. The objections are embodied in the points proposed. The first objection is that the action against the sureties cannot be maintained without first fixing the principal with the amount of indebtedness. It is very questionable whether a suit could be sustained at law against the personal representative of the sheriff upon the bond. Whether an action in the case for negligence, under the Act of Assembly, would survive, has no]t been determined. We entertain no doubt, however, that a cause of action exists on the bond against the surviving sureties, and the present form of proceeding is sustainable.] The rule suggested that if the sheriff had the prisoner so under his control as to be enabled to produce him when required, it was a compliance with his duty. We are not of that opinion. As mentioned, a commitment on final process means close custody. We do not think that the proceedings to insolvency by any means exonerates the sheriff. The cause of action was complete before the insolvent proceedings were commenced. , Nor does the fact of insolvency, nor the subsequent discharge, justify the sheriff or afford any excuse for a permission to escape, whilst the prisoner is in charge of the officer under sentence.”</p> <p>The verdict was for the plaintiff, Jane McGarvy, for $235.63. The defendants took a writ of error, and assigned for error the parts of the charge enclosed in brackets, the answers to their points, and the rejection of their offer of evidence.</p>

<p>- Error to the Court of Common Pleas of Indiana county: No. 154, to October and November Term 1868.</p> <p>In the court below proeeedings were commenced October 16th 1867, by the Commonwealth at the relation of Augustus Euchenberg, to inquire -whether Elizabeth Schneider was a lunatic, &c. On the 21st of March 1868 the inquisition finding the respondent a lunatic was confirmed by the court. The respondent traversed the finding.</p> <p>On the trial of the traverse, the court (Buffington, P. J.), amongst other things, charged:—</p> <p>“While mind or intellect exists, however weak or feeble it may be, the persons must be left to the management of their own affairs. It is only when the intellect is deranged and the powers of mind so obliterated that it is incapable of discrimination; the memory so gone that they could not recollect their own condition and situation of their own affairs; that they are laboring under some delusion; acting under some imaginary state of affairs that are merely the fruits of a disordered imagination; having no foundation in truth and fact, that liberty to manage themselves and property may be taken from them. So mere eccentricity upon one or more subjects; singularity of manner or conduct; habits differing from the usual habits of the society in which they .move, are all insufficient to establish unsoundness of mind. Feebleness of body from age or disease, if the mind continues sound, is also insufficient. TJnsoundness must be characterized by a want of ability to manage their business or take care of their property. Mere want of such ability from physical causes to manage their business is insufficient, unless founded upon delusion such as results from a want of intellect and memory; from unsoundness of mind and incapability of comprehending their own condition or that of their property or of managing it, or employing the agency of others to do so. [Until-the mind is entirely blotted out, persons must be left to the management of their own affairs. As long as there is a spark of intelligence left, the law does not permit their liberty to manage themselves or property to be taken from them,]</p> <p>“ It is extremely difficult to define such a condition of mind as will justify a court in depriving a man of his right of personal ■liberty and the control of his property; and each case, differing as it does from all others, must be left to the sound judgment of a jury with such general instruction as we have mentioned.”</p> <p>The jury found for the respondent.</p> <p>The relator took out a writ of error, and assigned for error the portion of the charge enclosed in brackets.</p>

<p>Error to the Court of Common Pleas of Westmoreland county: To October and November Term 1868.</p> <p>This was an action of trespass q. c. f. commenced before a justice of the peace by Samuel Kistler against Obadiah Painter, in which the justice rendered judgment for the plaintiff for $30. The defendant appealed to the Court of Common Pleas to August Term 1866. While the action was pending there, the parties entered into an agreement as follows, viz.: “ November 29th 1867, we do hereby agree to submit all matters in variance in the above case to John W. Riddle, Paul Brinker and John Stark, whose award or a majority of them shall be final and conclusive between the parties.”</p> <p>An award was made as follows:—</p> <p>“ We the referees * * do report that we find for the plaintiff the sum of $4.50, with costs of suit.</p> <p>“Witness our hands this 14th day of December, A. D. 1867.</p> <p>“ John W. Riddle, “Paul Brinker.”</p> <p>On the 22d of January 1868 the defendant’s attorney “ moved to strike off the award and to strike off the plaintiff’s costs.”</p> <p>The motion was denied.</p> <p>“ 12th February 1868, rule to show cause why execution should not issue for all the costs. 8th July 1868, rule so modified, on motion of Mr. Foster, as to read judgment on the award with full costs. Same day, rule as modified made absolute.”</p> <p>The defendant took a writ of error, and assigned for error the refusal to strike off the award and costs, and entering judgment on the award with full costs.</p>

<p>1. A lot was granted to trustees, naming them, “ and their successors in trust for the uses,” &e., thereinafter mentioned, to hold “to the said trustees and their successors in office for ever in trust,” to build a house of worship for the members of the Methodist Church, “ so long as they use it and no longer, and then to return back to the original owner,” according to the rules and discipline from time to time adopted by the General Conference. Held, that the estate in the trustees terminated when the house ceased to he used as a place of worship according to the discipline of the church.</p> <p>2. The legal estate of the trustees endured no longer than the use it was designed to protect.’</p> <p>3. The trustees being unincorporated and having no legal succession, “ successors” will not continue the estate beyond its appropriate use.</p> <p>4. The equitable estate is in the members of the church only so long as they use it as a place of worship, and this limit being transcended the estate returns to the grantor.</p> <p>5. The abandonment of the house as a place of worship, unless by the church authority according to the discipline then existing, would not ipso facto determine the use.</p> <p>6. The discipline takes from the laity of a Methodist church the power to continue any house as a place of worship, according to the rules of the church, after the ecclesiastical authority has resolved to discontinue the servicós of its preachers there.</p> <p>7. To worship as members, and under the discipline, they must accept the preacher sent by the bishop.</p> <p>8. The discipline does not definitely give the bishop authority of removing a place of worship; but the rule in the civil courts is, that churches are left to speak for themselves in discipline and doctrine.</p> <p>9. Whether trustees in a grant of land for a place of worship before 1864, can be changed according to the discipline of the Methodist Church of that year, dubitatur.</p> <p>10. Such a deed is a contract between the grantor and the trustees, and even the legislature cannot impair the contract.</p> <p>11. The constitution and government of the Methodist Episcopal Church in the United States examined and stated.</p>

<p>1. A rule of court provided that where the plaintiff’s claim might he proved by books of original entry, if he shall file a sworn account as taken from such books, it shall be admitted in evidence, unless the defendant by affidavit filed with bis plea, shall state he had no such dealing with the plaintiff, or that he believes the production of the plaintiff’s books is necessary for a just decision. The purpose of the rule is to dispense with the production of the hooks, and allow the sworn copy to be given in evidence, wherever the books would be evidence.</p> <p>2. A defendant in his affidavit alleged only -that the prices charged in the plaintiff’s account were too high: held, that the plaintiff’s account might be read in evidence under the rule.</p> <p>3. The books of original entry would have been primá facie evidence both of sale and delivery and of the prices, and the burden of showing the prices were too much would have been on the defendant; the admission of the sworn copy imposed no additional burden.</p> <p>4. A rule of court provided that if the plaintiff file a sworn specification of items and facts necessary to support it, such items and facts as are not traversed or denied by the affidavit of defence shall he taken as admitted. This rule does not embrace demands which may be proved by books of original entry.</p>

<p>Error to the District Court of Allegheny county: Of October and November Term 1868, No. 30.</p> <p>This was an action of assumpsit by Samuel C. Neel against Robert Morrow, administrator, &c., of John Neel, deceased. The writ was issued November 23d 1866.</p> <p>The plaintiff’s declaration contained all the common counts, and alleged that the “ defendant” was indebted to the plaintiff in the sum of $15,000; there was no count laying an indebtedness of the intestate to the plaintiff. The pleas were non assumpsit, &e., and the Statute of Limitations.</p> <p>The plaintiff gave evidence that he was the nephew of the intestate; that his father having broken up house-keeping he went to live with the intestate about 1845 or 1848, being then about fifteen years old, and managed his farm; he married in 1865, and took his wife to the intestate’s house, and lived on the farm till the fall of 1866. He also gave evidence that in 1856 the intestate said to a witness that the plaintiff talked about leaving him; and he did not know how he would get along without him, asked witness to see the plaintiff and get him to stay, he said he would pay plaintiff well. In 1864 or 1865 intestate said to same witness that plaintiff had determined to leave him, and he did not know what he would do if he left him; he asked witness to see the plaintiff and ask him to stay, that he would do better by plaintiff than he could do any place else; that he would give plaintiff more wages than he could get by anything he would be at. Another witness testified to a conversation between the intestate and the plaintiff in 1864. The plaintiff was going to leave, and the intestate said to him if he would stay he would give him $1500 a year.</p> <p>The defendant gave evidence for the purpose of showing that the plaintiff’s services were rendered as one of intestate’s family, and not under a contract or in expectation of being paid for them.</p> <p>The defendant submitted the following points:— ■</p> <p>1. If they believe that plaintiff went to his uncle’s when he was a boy fifteen years of age, and was educated, clothed and provided for by his .uncle, and was a member of John Heel’s family — ■ treated as a son, receiving money from time to time as he called for it, and so continued to live, act and be treated as a member of the family, and no account being kept on either side, and receipt given or taken, then the plaintiff cannot recover.</p> <p>2. The plaintiff, having failed to prove any express contract, no implied promise can in law arise under the evidence, and plaintiff cannot recover.</p> <p>3. The Statute of Limitations bars all plaintiff’s claim prior to six years before suit brought.</p> <p>The court (Williams, J.) answered :—</p> <p>“ 1. If the facts stated in this point correctly express the relationship between the parties, then the plaintiff would not be entitled to recover for the services which were rendered by him to the intestate, and for which this action is brought. But if there are other facts tending to show that the relationship was different from that indicated in the point — that is to say, if the evidence shows that it was the understanding of both parties that the plaintiff was to be compensated for his services, and to receive wages therefor, then the plaintiff may recover for his services what they were reasonably worth, although the parties may not have agreed upon a fixed or specific amount of wages.</p> <p>“ 2. The court decline to charge as requested in this point— the testimony of William B. Heel and Harriet Dunn, if believed by the jury, is sufficient to enable the plaintiff to maintain this action.</p> <p>“3. This point is affirmed.”</p> <p>The verdict was for the plaintiff for $5500. The defendant took a writ of error. He assigned for error:—</p> <p>1. That under the issue as made up on the record there was no evidence on which a verdict could he rendered for the plaintiff.</p> <p>2 and 3. The answers to the defendant’s 1st and 2d points.</p>

<p>1. Mere forbearance by the creditor to the principal, however prej adicial to the surety, will not discharge the surety.</p> <p>2. The same rule applies to sureties for officers of corporations, whose duties require the receipt and disbursement of various sums of money, as to sureties for the payment of a single sum.</p> <p>S. The rules of a railway company required from the cashier monthly reports and payments; the bond of the cashier and his sureties was conditioned, that he should faithfully discharge his duties as required by the rules, “ a copy of which he acknowledged to have receivedthe cashier neglected to account and pay over for six months, when he was dismissed, and the sureties were not notified of his default for three months afterwards. Held, that they were not discharged.</p>

<p>Certiorari to the Court of Quarter Sessions of Allegheny county: No. 31, to October and November Term 1868.</p> <p>On the 17th of August 1867, Joseph Keeling presented a petition to the Court of Quarter Sessions, setting forth that he “labors under great inconvenience for want of a private road under ground to certain coal-mines owned by him in Lower St. Clair township: beginning at the present southerly end of the Ormsby Coal Railroad, on line of land of Margaret Giffin, in said township; thence under the surface of said Margaret Giffin’s land to the said coal-mines of your petitioner, being immediately under the line separating said Giffin’s surface land from surface land of William Noble’s devisees, at a point distant from Mount Oliver tract, 61 perches by a line S. 25° W.and prayed the court “ to appoint proper persons to view and lay out said private road according to law.” The court appointed viewers in accordance with the prayer of the petitioner. The viewers reported, “ that the desired road is necessary, and that we have viewed and laid out, and do return for private use, the following road, viz.: beginning under the surface at the southerly end of the Ormsby Coal Railroad, in Lower St. Clair township, on line of land of Margaret Giffin; thence * * under the surface of said Margaret Giffin’s land through the coal seam * * to the coal or coalmines of the petitioner, Joseph Keeling, being a point immediately under the line separating said Giffin’s land from surface line of William Noble’s devisees, as by reference to the draft hereto annexed will more fully appear.” They further assessed damages for Margaret Giffin at $581.31.</p> <p>The report was approved September 4th 1867, and the width of the road fixed at 25 feet. On the 18th of September Mrs. Giffin filed exceptions to the report, amongst others the following :—</p> <p>1. The proceedings are illegal in this, that said contemplated road does not extend to or connect with any such private road, or other place as is required by law.</p> <p>2. That the Lateral Railroad Law, as now in force in Pennsylvania, in spirit and in substance, has repealed and annulled the law under which said proceedings are attempted to be carried through.</p> <p>8. That the Act of Assembly under which the proceedings were had is to be taken as part of the Lateral Railroad Law, or the same is unconstitutional.</p> <p>The proceedings were under the Act of April 16th 1838, § 16, Pamph. L. 642, Purd. 873, pi. 20, which provides that Courts of Quarter Sessions may, “ upon application of any person or persons for a private road under the surface of any land to coal-' mines, cause a view to be had of the same premises; and upon return of viewers that the said road is necessary, then the said court shall cause the same to be entered of record; thenceforth such road shall be deemed and taken to be a lawful private road, shall be opened by the persons making the application, and kept in repair at their exclusive cost: Provided, That the viewers shall assess the amount of damages sustained by the owner or owners of lands through which the road shall be made, and embody the same in their report, which damages * * shall be paid by the person or persons making application for such roads.”</p> <p>On the 4th of January 1868, the court overruled the exceptions and confirmed the report absolutely.</p> <p>Margaret Griffin removed the proceedings into the Supreme Court by certiorari, and assigned for error, the overruling her exceptions and confirming the viewers’ report.</p>

<p>1. A garnishee is not liable for interest on a debt to a defendant in tlie attachment between the service of the writ and entry of judgment.</p> <p>2. To his answer by the cashier of a bank garnishee to interrogatories, an account between, the defendant and the bank was appended, showing a balance due the defendant. The answer stated that one of the credits making up the balance and entered as cash, was the check of a third person, which had been dishonored and protested, and that in consequence there was actually a balance due from 'the defendant to the bank. Held, that the answer did not warrant the entry of judgment against the garnishee for the balance on the account.</p> <p>3. A garnishee’s answer is not to be construed with the same strictness as an affidavit of defence.</p> <p>4. Judgment will not be entered against a garnishee unless he expressly or impliedly admits his indebtedness to the defendant, or possession of assets belonging to him.</p> <p>5. The admission of a garnishee to warrant judgment against him, should be such as to leave no doubt of the nature and extent of this indebtedness.</p>

40, to October and November Term 1868. This was an action of assumpsit by Alexander W. Poster and another, trading as Poster & Co., against The Pittsburg Coal Company. The writ was issued July 21st 1866.

Lewis Lane was indicted for the murder of his wife, Henrietta Lane. The indictment was tried June 17th 1868, before Sterrett, P. J., and Stowe, J. The Commonwealth gave evidence that the deceased died by means of poison, and that it had been administered to her by the prisoner. The jury was charged by Stowe, J., who, amongst other things, said to the jury: “ The life or death of this man is in your hands. There is no middle course.

81, to October and November Term 1868. This was an action of trespass de bonis asportatis, commenced April 17th 1867, by Samuel B. Cluley, sheriff of Allegheny county, against Charles Lockhart and others, trading as Lockhart, Frew & Co. On the 8th of December 1866 R. Lamberton & Co. recovered a judgment against A. Conkle for $4725, and on the same day 'issued an execution upon it which came into the hands of the sheriff on the same day.

89, to October and November Term 1868. This was an action of ejectment by Henry Evars against Henry Kamphaus for a strip of ground about 7 inches wide, in the city of Pittsburg. The writ was issued November 27th 1868. The parties owned respectively adjoining lots, and the question was as to the line between the lots. In November 1866, Evars being then in possession of the strip, an action of ejectment was brought by Kamphaus to recover possession of the strip.

<p>1. The court below is the most competent to interpret its own rules.</p> <p>2. A commissioner to take depositions exercises the power of the court itself in swearing witnesses.</p> <p>3. The authority of the court to appoint a commissioner to take depositions of witnesses, arises from Article 5, | 6 of the Constitution, in relation to perpetuating testimony, &c,</p> <p>4. Every commission when in proper form, authorizes the commissioner to call witnesses before him, and examine them on oath.</p> <p>5. The defendants in 1866 bought goods from plaintiffs — “ Liverpool test, monthly shipments from Liverpool to Philadelphia, * * at cents per pound, cash, gold coin, on vessel in Philadelphia.” Reid, to be payable in gold or its equivalent.</p> <p>6. Parties can take themselves out of the operation of the Legal Tender Law after its passage by contracting for payment in coin alone.</p> <p>7. The intention of Congress was not to prevent contracts in specific things, whether coin or chattels, but to make treasury notes lawful money for payment of debts, when not forbidden by law or express contract.</p>

122, to October and November Term 1868. This was an action of replevin, by John B. Sneed against F. P. Kahle, for three Fat-bottomed boats; commenced December 19th' 1863.

57, to October and November Term 1868. This was a scire facias sur judgment, issued April 11th 1865, by Matthew McKerrahan, for the use of Edward Snowden, Esq., against Margaret Crawford and William II. Crawford, executors, &c., of Edward Crawford, deceased, with notice to Margaret Crawford, widow, Matthew McKerrahan and Margaret his wife, William H. Crawford and others, heirs or devisees of Edward Crawford, deceased. Margaret Crawford and William II.

100, to October and November Term 1868. This was a scire facias sur mortgage to July Term 1868, in which Stephen H. Geyer was plaintiff and Abraham Rife defendant. On the 6th of July a case stated, embodying the following facts, was filed.

<p>1. A debtor owning stock delivered the certificate with a power of attorney to transfer to a creditor as collateral security. In a contest with another creditor, the purchaser might show by parol that the date in the power of attorney was a clerical error, and that it had been executed at a different time.</p> <p>2. The debtor was a competent witness to prove the mistake, his interest being balanced between the two creditors.</p> <p>3. The title to the stock passed to the creditor at the time of the delivery of the certificate and power of attorney, although it continued to stand on the books of the company in the debtor's name.</p>

133, to October and November Term 1868. The appeal in this case was by Caleb Bussell, a lien-creditor of tbe decedent. Tbe decedent died in 1859 or 1860. On tbe final settlement of tbe account of William P. Baum, bis administrator, there appeared to be a balance of $1514.26 due tbe estate. Tbe account was referred to William Gr.

44, to October and November Term 1868. This was an action of assumpsit by William Bilworth, Jr., against John Carrier and A. F. Baum, trading as Baum & Co. The writ was issued March 13th 1868. The declaration, which was filed with the prseeipe, set out in totidem verbis an agreement tender seal, signed “Wm.

48. This was an action on the case by Thomas Fawcett against Nathan Bigley for negligence of the defendant’s servants, from which the coal-barges of the defendant were allowed to strike a barge of the plaintiff, causing it to sink and lose barge and cargo. The writ was issued May 17th 1867.

<p>Error to the Court of Common Pleas of Allegheny county: No. 35, to October and November Term 1868.</p> <p>This was an action of trespass q. c.f. brought, June 26th 1865, by George McCombs against James M. Rowan. The pleas were “Not guilty,” and “Liberum tenementum.”</p> <p>The plaintiff and defendant owned adjoining pieces of land which originally had been included in one tract. Through the original tract was a public road called the “ Puckety road.” The plaintiff’s land was on the south side of the road and the defendant’s on the north side. The locus in quo was a strip of ground about forty rods long, and varying from five to fifteen feet in width on the south or plaintiff’s side of the road. The plaintiff had fenced up to the road and was in possession, when the defendant entered and carried away the fence; for which the plaintiff brought this action. After proving the alleged trespass, the plaintiff gave evidence tending to show a continuous adverse possession since 1835 or 1836.</p> <p>The defendant then gave evidence that his actual southern boundary, according to his paper title, included the strip in question ; also that for the purpose of proceedings in partition a survey had been made in 1844, commencing at a white-oak, which appeared to be recognised as a corner between the plaintiff and the defendant; by this survey the strip was shown to be within the defendant’s tract; also that in 1862 or 1863 the defendant notified the plaintiff to move the fence, and that in 1865 he had the lines again examined by a surveyor, who blocked the white-oak. He also gave evidence tending to disprove the plaintiff’s, adverse possession.</p> <p>The defendant submitted a number of points, amongst others the following, which were affirmed by the court (Sterrett, P. J.);—</p> <p>“4. The Statute of Limitations was intended to protect, not one who enters by right, but a disseisor who enters against all right, and that therefore, to give title by the Statute of Limitations, requires a possession of twenty-one years, and that possession must be actual, visible, peaceable, continued, notorious, distinct and hostile.</p> <p>“ 5. If the jury believe from the evidence that James M. Rowan, the defendant, entered upon the portion of the land now in controversy in March 1844, and afterwards for the purpose of making a survey, or the exercise of any other acts of ownership, such entry or entries would bar the running of the statute, because it would break the continuity of the possession and destroy its peaceable character.”</p> <p>The verdict was for the defendant.</p> <p>The plaintiff took a writ of error, and assigned for error the affirmance of the defendant’s 4th and 5th points.</p>

56, to October and November Term 1868. This was an action of assumpsit, commenced March 26th 1866, by W. T. McClurg against Mary C. Price and William H. Sims, trading as Price & Sims.

This was an habeas corpus ad subjiciendum, issued out of the Supreme Court, at the relation of Alexander Lowry, against Daniel J. Reed, sheriff of Armstrong county. At the instance of the guardian of Vermadille Funk, a minor, the lion.

52, to' October and November Term 1868. On the 27th of July 1867 William Magill presented to the Court of Common' Pleas his libel asking to be divorced from his wife, Lavinia Magill, on the ground of her desertion.

<p>1. A railroad company contracted by articles for land and entered under the articles. Having failed to pay the purchase-money according to the articles, the court decreed specific performance with leave for the vendor to issue execution, if the purchase-money found to be due should not be paid at the time fixed in the decree. The money not being paid, execution was issued, under which the whole tract was sold. Before the sale the company had laid a track, &e., on a strip of the land. Held, that the sale vested the whole interest of the company legal and equitable, including the strip occupied by the track, &e., in the sheriff’s vendee, subject to no easement by the company.</p> <p>2. The court decreed that the vendor should deposit with the prothonotary a deed, to be delivered to the company on payment of the purchase-money, and ordered them to pay the purchase-money at times named in the decree; afterwards on non-payment according to that decree, the court decreed that judgment be entered for the vendor for the whole purchase-money due. Neither of these decrees vested the legal title in the company.</p> <p>3. The sale upon his judgment under the decree was an election by the vendor to sell his legal as well as the company’s equitable title, and was a virtual rescission of the contract.</p> <p>4. The sale left in the company no easement in the strip, nor any right of way over it.</p> <p>5. The company did not enter on the land adversely, nor appropriate it under its chartered powers.</p> <p>6. The company entered and constructed its track as the equitable owner of the ground, and had no right to its use except as such equitable owner.</p> <p>7. In affirming a judgment in ejectment against the company in favor of the sheriff’s vendees, the Supreme Court ordered proceedings on the judgment to stay till there should be an opportunity to assess the damages to the owner, and to make compensation to him.</p>

92, to October and November Term 1868. This was tin action of ejectment brought, April 29th 1867, by George W. Wilde against James Trainor and others, who were tenants of Sarah E. Colinburgh, for a lot of ground in Allegheny City.

Appeal by Benjamin Work, Sr., from the decree of the Court of Common Pleas of Allegheny county, in the matter of the distribution of the estate of William McClelland, deceased: No. 116, to October and November Term 1868.

121, to October and November Term 1868. This was an action of assumpsit, commenced March 21st 1854, by John Gilmore against David Hunt. The plaintiff’s claim was on three promissory notes, dated February 11th 1848, payable in two, four and six months respectively, for $183.33 each.

<p>1. The councils of Allegheny contracted for the grading of a street at a given price, the cost of the grading to be assessed according to a special law on the landholders on the street. Councils had the right to revoke the contract, and enter into a new one at a higher rate, without the consent of the landholders.</p> <p>2. In grading the street it became necessary to construct a sewer: Meld, that the cost of the sewer was properly included in the assessment for grading the street.</p> <p>3. An Act of Assembly enacted that the “ laws, ordinances, regulations and constitutions,” passed by the councils of Allegheny, which were not published and recorded in the recorder’s office, should “ be null and void.” Councils passed a resolution to revoke a contract of grading streets, and to enter into a new contract on different terms; the resolution was not published nor recorded. Held, that the resolution was within the meaning of the act, and therefore inoperative.</p>

<p>Error to the Court of Common Pleas of Allegheny county: No. 12, to October and November Term 1868.</p> <p>This was a sheriff’s interpleader between Josiah Reamer, assignee for the benefit of creditors of A. Conkle, and R. Lamberton & Co., to try the title to certain goods levied on under a fi. fa. to March Term 1867 of the Common Pleas, at the suit of Lamberton & Co. against Conkle.</p> <p>Lamberton’s execution was for $4725, was tested December 8th 1866, and placed in the sheriff’s hands at 8J o’clock P. M. of that day. On the same day, Conkle executed and acknowledged a deed of assignment for the benefit of his creditors, leaving a blank for the name of the assignee; the assignment was left with the. scrivener until the name of an assignee could be procured and inserted. This was all done before Lamberton’s execution came into the sheriff’s hands. On the 10th of December, the name of Reamer was inserted in the blank, and the deed then put on record. On the 11th of December, the sheriff levied on Oonkle’s goods in question in the issue.</p> <p>The court (Mellon, J.) charged that the assignment did not divest the property of Conkle. The jury found for the defendants. The plaintiff took out a writ of error. No assignment of error was filed.</p>

<p>Error to the Court of Common Pleas of Fayette county: No. 127, to October and November Term 1868.</p> <p>This was an issue of June Term 1868, under the Sheriff’s Interpleader Act, in which Jacob D. Billingsley was plaintiff, and John P. White and John Sparhawk, trading as White k Spar-hawk, were defendants.</p> <p>On the 7th of October 1867, White k Sparhawk obtained a judgment for $166.65, against James Billingsley and Wilson Patterson, trading as Billingsley k Patterson, on which, in December following, they issued execution and levied on the goods in controversy in this issue. The goods were claimed by Jacob D. Billingsley, a brother of James Billingsley, under a sale from Billingsley k Patterson, made March 7th 1868.</p> <p>The plaintiff in the issue called Wilson Patterson, who testified : Billingsley k Patterson in 1866, and until March 1867, were in mercantile business at Cookstown, Fayette county. On the 7th of March they sold their stock to Jacob Billingsley, at the wholesale price in Pittsburg, including the cost of carriage. The goods were inventoried on the 7th and 8th, and amounted to $1152.89. Final possession was given to Jacob on the 9th. He paid for the goods $552 in cash, and a note at six months for $600, which was paid at maturity. After the sale Patterson rented some land and commenced farming. James continued in the store as a hired-hand under a contract with Jacob for $1 per diem. On the 16th, witness out of the $552 paid a firm-debt to G. W. Dilworth in Pittsburg, and gave notice to the firm-creditors there that Billingsley k Patterson had sold out. The book-debts due to the firm were more than sufficient to pay all the firm-debts at the time of sale. Witness lived across thev street from the store, and occasionally but not often sold goods after the sale. Jacob resided at California, Washington county, at the time of the sale, and has continued to reside there. He often came to Cookstown and returned the same day; was more there than at California. After the sale James remained and sold goods up to the time of the sheriff’s levy. Plaintiff gave evidence that on the 9th of March a notice from Billingsley k Patterson was put on their store-door, that they had sold out and requested their debtors to pay, and that the same notice was posted in other places. He also gave evidence of owning $500 in July 1866.</p> <p>The defendants gave evidence for the purpose of showing that the sale to Jacob was colorable and fraudulent.</p> <p>The court (Gilmore, P. J.) charged the jury, that there was not a sufficient delivery of the goods to make the sale good, but that it was in law fraudulent and void against creditors, and that the verdict must be for the defendants.</p> <p>The verdict was for the defendants. The plaintiff removed the case to the Supreme Court, and assigned the charge of the court for error.</p>

<p>1. Becker by articles sold real estate to Linn, and agreed that he should have the use of certain personal property, and might sell materials belonging to Becker on the premises on commission; Linn to deposit the proceeds with a banker named, and when the payments to the banker reached a sum named, Linn was to become the owner of the personal property and the materials if any remained; if the sales did not amount to the sum, Linn was to make up the deficiency. Held, not to be a conditional sale but a bailment.</p> <p>2. Performance at a day may be made of the essence of a contract.</p> <p>3. A stipulation for performance at a day, when of the essence of the contract, is not in the nature of a penalty against which equity will relieve, but one which lies at the root of the agreement, and which the party makes the condition on which he contracts.</p> <p>4. Where delivery accompanies a sale of chattels, the mere reservation of a lien or right of property will not protect them from the executions of the vendee’s creditors.</p> <p>5. Where the delivery of chattels is upon a bailment for a proper purpose, they will be protected from the bailee’s creditors.</p> <p>6. To support an action of trespass de bonis asportatis, the plaintiff must have the rightful possession of the goods, or a gener-al right of property in them and a constructive possession.</p> <p>7. AjM)wner who has parted with his goods by hiring for a limited time cannot ¿cover in trespass. But if the custodian is a mere agent or servant he ma-</p> <p>8. If the owner he entitled to the immediate possession, the goods being wrongfully withheld, his right of property.draws to him the constructive possession, and he can maintain trespass.</p>

<p>Error to the Court of Common Pleas of Washington county: No. 161, to October and November Term 1868.</p> <p>This was an action of debt on a policy of insurance, brought by S. E. Hill against The Cumberland Yalley Mutual Protection Company.</p> <p>The defendants were incorporated March 9th 1843. By a supplement to their charter, approved April 11th 1844, it was provided that they should possess all the powers and privileges, &c., conferred by the charter of the Bradford County Mutual Insurance Company. One of the provisions of that charter is the following:—</p> <p>“ Section 7. When property insured by this corporation shall be alienated by sale or otherwise, the policy shall therefore he void and be surrendered to the directors of said company to be cancelled,” &c.</p> <p>On the 9th of March 1865, the plaintiff insured with the defendants for five years to the amount of $3000, on a flouring-mill, with machinery, &c.</p> <p>One of the conditions annexed to the policy was, “ In case of any transfer of interest in this policy, or any part thereof, either by sale or otherwise; or if the property herein insured, or any part of it, shall be transferred by any contract or any change of partnership or ownership, whether prior or subsequent to any loss or damage to the property insured, without the written consent of the secretary, this policy shall thenceforth be void and of no effect.”</p> <p>On the 4th of December 1865, the plaintiff, by articles of agreement, contracted to sell his mill, &c., the property insured, to William D. Doak for $4000, as follows: $1500 on the 1st of April 1866, when possession was to be given, and the rest in three equal annual payments. $1000 on account of the first payment ■were paid January 1st 1866. The company had not consented to the contract of sale. On the 18th of January, Hill being still in possession by his tenant^ the mill was burned.</p> <p>To recover for the loss this suit was brought.-</p> <p>On the trial the court (Sterrett, P. J., of the Fifth District) instructed the jury if they found certain facts, which he stated, they should find for the plaintiff for the amount of his loss, with interest, &e., reserving the question of law, “ Whether the agreement of sale to Doak, and receipt of part of the purchase-money, prior to the loss by fire, without the consent of the company, rendered the plaintiff’s policy void and of no effect, or not ?”</p> <p>The jury found for the plaintiff $3289, subject to the opinion of the court on the reserved question.</p> <p>The court afterwards entered judgment for the defendants on the reserved question non obstante veredicto.</p> <p>The defendant took out a writ of error, and assigned for error entering judgment for the defendants.</p>

<p>A married woman with her husband executed an agreement to convey land, and received the purchase-money; the agreement was not acknowledged. The purchaser went into possession and made improvements.</p> <p>After her death the heirs brought ejectment for the land. Held, that they were entitled to recover without repaying the purchase-money.</p>

<p>Error to the Court of Common Pleas of Fayette county: No. 137, to October and November Term 1868.</p> <p>This was an action of ejectment, commenced May 3d 1865, for 67 acres of land in Luzerne township, Payette county.</p> <p>On the 14th of December 1866, the court directed that Margaret Easter and eleven others alleged to be heirs of Achor Worley under whom the plaintiff claimed should be added as plaintiffs.</p> <p>On the trial before Gilmore, P. J., the plaintiff gave in evidence a sheriff’s deed dated June 15th 1823 to Achor Worley for a tract of 100 acres sold as the property of Noah Lewis; also that the land in controversy was this tract or part of it. Worley took possession, and died in possession, intestate as to this land, leaving eight sisters and two brothers of the whole blood; one of the sisters married Nathan Wright; the plaintiff Bruner is a grandson of that sister, his mother and father being dead. After Worley’s death his widow continued in possession until 1835, her life estate having been at that time sold by the sheriff. A man named Riley went in after the sheriff’s sale; one McGinnis took possession in 1839, and lived there until about 1863, when Mobley, the defendant, entered. The widow of Achor Worley died in 1857. On the trial the court, on motion of plaintiff’s counsel, directed a non-suit to he entered against all the plaintiffs except Bruner; to this the defendant excepted. The plaintiff having given the above facts in evidence closed; — the defendant gave no evidence.</p> <p>The verdict was for plaintiff, with leave to the court, notwithstanding the verdict, to enter judgment for the defendant, if the court should be of opinion: Eirst, that the plaintiff, Nathan Bruner, who is shown to be a tenant in common with others not upon the record, is able to recover the possession of the whole premises against the defendant, who has shown no title; and again, whether he can recover without showing more than that Achor Worley (under whom he claims title as one of his heirs) died in the possession of the premises, the defendant showing no title.</p> <p>The court entered judgment for the plaintiff, Bruner, on the verdict.</p> <p>The defendant took out a writ of error and assigned for error, that the court erred:</p> <p>1. In allowing part of the plaintiffs to become nonsuited, at the instance of their co-plaintiff.</p> <p>2. In not ordering a nonsuit to be entered against all the plaintiffs.</p> <p>3. In directing the jury to find a verdict for the plaintiff.</p> <p>4. In entering judgment on the verdict for the plaintiff.</p> <p>5. In not stating upon the record, both the point reserved and-the .facts on which it arose.</p>

27, to October and November Term 1868. This was an action on the case for slander, commenced August 2d 1862, by George W. Botkins against Thomas Porter. The declaration charged that the defendant declared that the plaintiff was a murderer, that he had poisoned Joshua Howard and Mary Howard; that he was a hog thief, and had stolen William Sproul’s hog. The defendant pleaded Not guilty.

<p>Error to the Court of Common Pleas of Fayette county: No. 184, to October and November Term 1868.</p> <p>This action was commenced before a justice of the peace by Enos West against A. E. Wilson, executor, &e., of Joseph P.</p> <p>McClelland, deceased, and removed into the Court of Common Pleas by appeal, May 16th 1867. The declaration was in assumpsit, and the pleas were non assumpsit and non assumpsit infra sex annos, &c.</p> <p>The evidence of the claim submitted to the jury was a bill dated November 6th 1849, containing a number of items which were footed up $25.64; below which the following was-written:—</p> <p>“ The above bill was delivered at J. A. Langston’s.</p> <p>Interest to August 1864 ..... $48.33</p> <p> I agree to settle this hill with Fnos West. </p> <p>1864. J. P. McClelland.”</p> <p>The defendant requested the court to charge the jury, that the writing attached to the bill did not take it out of the statute.</p> <p>The court (Grilmore, P. J.) charged the jury, that the agreement attached to the bill and signed by J. P. McClelland, would take the case out of the Statute of Limitations, if made in 1864.</p> <p>The verdict was for the plaintiff for $58.88. The defendant took a writ of error, and assigned the charge of the court for error.</p>

41. This was an action of slander, by Patrick Reynolds and Elizabeth his wife against Frederick Stitzell, commenced August 23d 1866. The declaration contained four counts.

175, to October and November Term 1868. On the 1st day of May 1867 a writing, purporting to be the will of Thomas Carson, with a codicil, was presented to the register of wills of Fayette county for probate. The will was dated December 5th 1860, and was signed by the testator, by his mark, and witnessed by John Carson and J. K. McDonald. John Carson was a legatee under the will.