Volume 6 — Sadler's Pennsylvania Reports

The facts are fully stated in the charge of the court below to the jury. Held: A. J. Snyder, and Christopher Gebhardt, were viewers appointed by the court on petition of ftodgers to assess damages to him caused by the change of grade in question.

Edwin S. Glanz, a liquor dealer, died intestate, June 3, 1884, leaving to survive him a widow, Mary A. Glanz, one minor child, his mother, Elizabeth Glanz, and a sister, Mrs. Sarah Gernet. Letters of administration were granted to his widow, whose account, showing receipts of $8,528.16, was duly filed and confirmed. D. W. Nevin, Esq., was appointed auditor, to examine the account and make distribution of the balance in the hands of the administratrix.

Gordon, Paxson, Trunket, Sterrett, and Green, JJ. Error to the Common Pleas of Bradford County to review a judgment on a verdict for plaintiff in an action of replevin. The facts are fully stated in the charge to the jury given below. Plaintiff offered in evidence a paper dated May 10, 1883, being a bill of sale of certain personal property from E. C. Hulett and R. K. Hulett to Alice J. Hulett.

The facts are stated in the charge to the jury given below. At the trial the defendant offered to prove that deceased, a short time before his death, said in effect that he was tired of life and didn’t care how soon nor how he would leave this life; that, on being reprimanded for careless driving, his reply was that he did not care nor want to live, or words to that effect; that his life had been a failure and his family was a failure.

This action was brought by Peter White against Salathiel Mead to recover for a balance ou a hoolc account, and for labor done for defendant. Defendant pleaded the general issue and set-off. Plaintiff obtained a rule on defendant for a statement of the matters of set-off. This was filed and consisted of items of book account, running back a number of years.

This was a bill in equity filed May 6, 1881, by B. Kush Jackson and James Thomson, surviving executors of the last will and testament of Josiah Jackson,… Held: in trust, by George D. Jackson, for himself and the others named. 3. As shown by a written declaration of trust dated July 4, 1861 [setting it out in full.] 4. That George D. Jackson in 1866 acquired an undivided 3/lY interest in the same 523 acres, etc., by conveyance from Erancis Jordan, Samuel H. Bibighaus, Thos.

<p>In an action to recover damages for the death of a person killed by a railroad train, while attempting to ride over the track at a public crossing, in a wagon driven by his servant, where the evidence showed that when deceased approached the track he stopped, looked, and listened, and the contention was whether the place where he stopped was a suitable one to see and hear, and whether due effort was made to ascertain if a train was approaching, — Reid, that the evidence justified a finding for plaintiff, and that it was not error for the court to refuse t® instruct the jury that under ail the evidence the plaintiff could not recover, and that, unless the deceased stopped at a certain point and looked, plaintiff could not recover.</p> <p>Cited in Stanton v. Delaware & H. Canal Co. 1 Lack. Jur. 245.</p> <p>Note. — Whether the plaintiff stopped at the proper place is ordinarily for the jury. Ellis v. Lake Shore & M. S. R. Co. 138 Pa. 506, 21 Am. St. Rep. 914, 21 Atl. 140: Newhard v. Pennsylvania R. Co. 153 Pa. 417, 19 L. R. A. 563, 26 Atl. 105; Link v. Philadelphia & R. R. Co. 165 Pa. 75, 30 Atl. 820, 822; Newton v. Pittsburg & L. E. R. Co. 18 Pa. Super. Ct. 18; Neiman v. Delaware & H. Canal Co. 149 Pa. 92, 24 Atl. 96; Muclcinhaupt v. Erie R. Co. 196 Pa. 213, 46 Atl. 364. But the rule is otherwise where he could have stopped at a place where he could see, but actually stopped at one at which he could not. Urias v. Pennsylvania R. Co. 152 Pa. 326; 25 Atl. 566; Keppleman v. Philadelphia & R. R. Co. 190 Pa. 333, 42 Atl. 697; Wojoehoski v. Central R. Co. 10 Pa. Super. Ct. 469.</p> <p>For authorities relating to injuries received by trains at highway crossings, see the following editorial notes presenting the authorities on their respective subjects: At what railway crossings signals of trains are required, note to Sanborn v. Detroit, B. C. & A. R. Co. 16 L. R. A. 119; for whose benefit signals by approaching trains are required by statute at public crossings, note to Lonorgan v. Illinois C. R. Co. 17 L. R. A. 254; giving of statutory signals as measure of trainman’s duty, and neglect to give signals, note to New York, L. E. & W. R. Co. v. Leamon, 15 L. R. A. 426; liability for failure to give statutory signals when they would not have prevented the injury, note to Sowles v. Moore, 21 L. R. A. 723; negligence of railroad company in respect to flying switches or detached cars moving by their own momentum, note to Kentucky C. R. Co. v. Smith, 18 Ej. R. A. 63; contributory negligence at crossing, duty to stop, look, and listen, notes to Fletcher v. Fitchburg R. Co. 3 L. R. A. 744; Rupard v. Chesapeake & O. R. Co. 7 L. R. A. 316; Becke v. Missouri P. R. Co. 9 L. R. A. 157; Spicer v. Chesapeake & O. R. Co. 11 L. R. A. 385; negligence in passing between or under cars, note to Central R. & Bkg. Co. v. Rylee, 13 L. R. A. 634.</p>

é of Philadelphia County to review a judgment of compulsory nonsuit in an action to recover damages for injurio? to the person, alleged to have been caused by negligence. Tbis action was brought by William J. Barton, against Jonathan R. Jones and Samnel T. Benner, trading as Jones & Benner, to recover damages for injuries received by a fall, alleged to bave been caused by the negligence of defendants and their servants.

The facts as they appeared at the audit of the account of the Guarantee Trust & Safe Deposit Company, trustee of the estate of William G. Mintzer, deceased, were stated by Penrose, J., in his adjudication as follows: The accountant was appointed trustee upon the petition of George W. Mintzer, October 19, 1883. Alexander Thackara, the surviving trustee under the will of the testator, had embezzled a large portion of the assets of the trust estate, and had abseonded.

3 of Philadelphia County dismissing a petition to set aside a decree of adoption. The record showed the following: The petition of Mrs. Eliza M. Caldwell for the adoption of Hattie M., a minor child of Emma T. Gallagher, was filed March 11, 1878.

3 of Philadelphia County to review a judgment on a verdict for the defendant in an action of assumpsit. The facts as they appeared at the trial were as follows: The plaintiff, Boswell, was a produce commission merchant.. In May, 1882, he bought, for the most part in the west, and carefully packed in oats, 140 barrels of eggs for the purpose of keeping them by means of ice storage until the winter months,, when they could be sold at an advance.

1 of Philadelphia County sustaining exceptions to a master’s account. Keported below: 1 Pa. Co. Ct. 184. Bill in equity for an account. Held: “There is no doubt of our concurrent jurisdiction, with courts of law, in matters of account where the accounts are mutual and complicated, and also where they are all one side, but discovery is sought, and is material to the relief.

1 of Philadelphia County to review a judgment of compulsory nonsuit in an action of trespass on the case. Held: that the question of his contributory negligence should have been left to the jury. Benzing v. Steinway & Sons, 101 N. Y. 547, 5 N. E. 449.

4 of Philadelphia County to review a judgment on a verdict for plaintiff in an action of assumpsit. ^Reported below 2 Pa. Co. Ct. 356. The summons was issued February 28, 1885.

2 of Philadelphia County to review a judgment for the defendants in a case stated in an action of ejectment. Reported below: 3 Pa. Co. Ct. 146. Held: that Hopkins took a part, and Susannah the other (she being entitled thereto under the intestate law, as next of kin). The words “I wish” are as mandatory as the words “I will.” Fox’s Appeal, 11 W. N. O. 236.

The facts appear by the following opinion of the court below, sustaining exceptions to the adjudication, the opinion being by Ashman, J.: The construction which shall be put upon the words “issue or descendants” constitutes the single question in dispute. The testator gave an annuity of $10,000 for life, and a power to dispose by will of one sixth of his residuary estate to each of his children.

3 of Philadelphia County to review a judgment in favor of the plaintiff for want of a sufficient affidavit of defense in an action of debt.

1 of Philadelphia County to review a judgment of nonsuit in an action of trespass on the case for negligence. The evidence tended to establish the following facts: The defendant operated a railroad in Philadelphia, along Le-high avenue, which is about 150 feet wide, crossing Cedar street, a much frequented thoroughfare, on which is a line of street ears, at right angles.

4 of Philadelphia County to review a judgment on a verdict for the defendant in an action of assumpsit. Held: the principal was bound by this promise, although it did not appear he had authorized it. In Kelsey v. National Bank, 69 Pa. 426, where a cashier with the approbation of some of the directors offered a reward for the apprehension of a thief, held, the bank was bound, although not formally notified.

2 of Philadelphia County to review a judgment on a verdict for plaintiffs in an action of assumpsit for rent. The plaintiffs declared for five months’ rent, to wit: from May 1 to October 1, on a verbal lease for a year; from October 1, 1884-, to October 1, 1885,,at $1,200 a year, payable monthly. Defendants pleaded nonassumpsit.

3 of Philadelphia County to review a judgment on a verdict for plaintiff in an action to recover the value of certain goods delivered to an express company. At the trial in the court below the following facts appeared: In December, 1885, the plaintiff, John C. Holmes, purchased of Lyon Brothers, wholesale furriers in Philadelphia, a sealskin saeque of the value of $180.

<p>An act directing that certain fines, amercements, penalties, and forfeited recognizances, shall be paid to a committee to be appointed by the court of common pleas and subject to its control, for the establishment and maintenance of a law library, does not by implication and in the absence of express words create a corporation.</p> <p>A bequest to such a law library is a bequest to a mere inanimate thing, having no capacity to receive a gift, and is therefore void.</p> <p>Under the facts in this case, held, that even if the library were a charity, the gift would be defeated by the act of April, 1855, because the will in which it was contained was made within thirty days of the testator’s death.</p> <p>Note. — For libraries as charities, see Pepper’s Estate, 154 Pa. 331, 25 Atl. 1058; Manners v. Philadelphia Library Co. 93 Pa. 165, 39 Am. Rep. 741; Billington v. Gautier Steel Co. 19 W. N. C. 339. Cited in Pierson v. Gaskill, 23 Pa. Co. Ct. 116.</p>

1 of Philadelphia County to review a judgment discharging a rule to show cause why certain judgments and executions in attachment proceedings should not be set aside. lieported below, 1 Pa. Co. Ct. 206. This is a contention between two sets of attachment creditors.

This action was brought by the assignees for the benefit of creditors of the Lehigh Valley Eire Insurance Company in the name of such company, against defendants, partners doing business as Dryfoos, Grier, & Youngman, to recover assessments on two policies of fire insurance, issued by plaintiff company to the defendants. Upon the first trial of the action a verdict was -rendered for plaintiff. Upon the rule for a new trial this verdict was set aside.

The case stated was as follows: Now, J anuary 5, 1887, it is agreed that an amicable action of trespass on the case in assumpsit in the above-entitled cause be entered in said court, and the… Held: that after the lease the son was in possession as tenant and not as owner. In Moore v. Miller, 8 Pa. 272, it was held that in estimating the language which constitutes a lease, the form of words used is of no consequence; it is not necessary that the term lease should be used.

<p>Under the acts of February 25, 1826, and April 9, 1827, the board of canal commissioners had power to purchase lands through which the Pennsylvania canal was intended to pass, without limitation either as to amount or quality.</p> <p>Land so purchased became ipso facto canal land and appurtenant to the canal.</p> <p>Under the act of April 9; 1827, the board received authority to sell the remainder not occupied by the canal; but whether they should make such sale or not was left entirely to their own discretion.</p> <p>Land so purchased and not sold by the board, although only partially occupied by the canal, passed by a sale under the act of April 21, 1858, of that portion of the canal “with all the property thereto belonging or in any wise appertaining,” and proclamation and deed in accordance with the act.</p>

The proceedings in the court below were founded upon an appeal by Samuel B. Cressman from a judgment of a justice of the peace, obtained by default September 22, 1886, by John Bossing, for $108 balance on wages for labor performed by plaintiff for defendant. The facts appear from the following opinion, by Bice, P. J., making absolute a rule to strike off the appeal: This appeal was filed October 21, 1886.

1 of Philadelphia County to review a judgment on a verdict for the plaintiff in an action of trespass on the case. Held: when plaintiff and a stranger were discovered to be present. The secretary announced that he had business of importance to lay before the meeting, but could not do so as long as persons were present who were not members; whereupon, the stranger left. Plaintiff said he was as good a member as anyone present, and refused to leave.

The testimony for the plaintiff below was to the following effect: On the 14th of December, 1875, in the afternoon, Levi Lear, the plaintiff below, was driving with a closed carriage, inside of which were seated two ladies and a man; outside on the seat with him was another man. They were returning from a funeral. It was almost dark when he reached the railroad crossing near the Empire store, on Northampton street, in the city of Wilkes-barre.

The facts appear from the charge to the jury by Hand, P. J., which was as follows: This is an action to determine the legal title to one ninth of an undivided tract of land in the warrantee name of Samuel Pope, Sugarloaf township, Luzerne county. The trial was opened to ascertain the title of two ninths, one ninth alleged to be in favor of the Todds, heirs of Henry Deringer, and one ninth in Calhoun Deringer.

<p>The opening of a decree in equity rests in the sound discretion of the common pleas; and unless the discretion has been abused, a refusal to open the decree will not be reviewed in the supreme court.</p> <p>Under the act of April 1, 1874, an appeal from a decree in equity cannot be taken after the expiration of two years.</p> <p>Note. — Bor the time of appealing, see note to Gillespie v. Campbell, 1 Sad. Rep. 145.</p>

The petition of Elizabeth Olenick set forth that she was the grandmother of Solomon Seif and Isidore Seif, minor children of Selina Seif, late of the borough of Pottsville, deceased, under the age of fourteen years; that they had no guardian to take can'. of their persons and estates; that there was a personal estate of about $2,500 belonging to them, left by their mother, and that said property was being used and employed by their father in business, and that she feared it…

The paper book for the appellants contained the names of the parties and nature of the proceedings; a history of the case; the decree made; the assignments of error; and an argument for appellants, but not the record. The history of the case was as follows: John Ruffing was a resident of Tamaqua, Schuylkill county; he owned a house and lot of ground in Tamaqua, but no personal property, at the time of his death.

<p>Certiorari sur appeal from a decree of the Common Pleas of Montgomery County granting a preliminary injunction.</p> <p>■The bill of the plaintiff Ambler, supported by affidavits, alleged :</p> <p>1. That on the 9th day of February, 1886, he sold and conveyed to the said defendant, Henry A. Martin, 3 acres and 110 perches of land, situated in the village of Ambler in Hpper Dublin township, in said county of Montgomery.</p> <p>2. That on the said 9th day of February, 1886, the said defendant executed in favor of complainant his mortgage for the whole purchase money for the premises conveyed, to wit, in the sum of $3,503, payable within two years, with interest payable semi-annually.</p> <p>3. That on the same day aforesaid, he agreed with the said defendant that upon the sale of said premises in lots, he would release such lot sold upon the payment of a sum equal to the proportionate part of an acre at the rate paid per acre.</p> <p>é. That the understanding between said parties was that the said premises were to be sold out in lots for building purposes.</p> <p>5. That the said Martin, instead of selling the same in lots or retaining the land in the connection purchased, sold the soil of a portion of said premises, and has opened sand and stone quarries, and disposed, and is still disposing, of the sand and stone to divers persons, for purposes foreign to the improvement of said premises.</p> <p>6. That by reason of the waste being and about being done by the said defendant, the security of complainant for his purchase money, intended to have been secured by said mortgage, is lessened and made, if permitted, wholly insufficient for its payment, as by so mining he will destroy the lands for the purpose of building thereon, and the land will be made waste land, without value for any purpose.</p> <p>7. That the only security complainant has for his purchase money for said land is the land itself, complainant believing that it is all the property owned by said defendant.</p> <p>The bill prayed: I. That an injunction issue preliminary until hearing, and perpetual thereafter, to restrain the said defendant, his agents, and workmen from opening and working sand and stone quarries upon said premises, and committing further waste thereon.</p> <p>II. Such other and further relief as complainant may be entitled to, and to the court may seem meet.</p> <p>Upon granting the preliminary injunction as prayed Boyer, P. J., delivered the following opinion:</p> <p>The plaintiff has supported the main averment of his bill, to wit, that the defendant is by his acts depreciating the present value of the mortgaged property, by the affidavits of a number of reputable citizens, residents of the vicinity. These affidavits have not been met by the affidavits filed in behalf of the defendant, which are mostly aside from the main point now at issue, namely, how the operations- of the defendant affect the security of the mortgage.</p> <p>Considering the liberal terms upon which the property was conveyed to the defendant, the whole of the purchase money being included in the mortgage, the mortgagee is specially entitled to protection from waste. It is true the defendant alleges a scheme for building which, if successfully carried out, might result in adding to the value of the property; but there is no present assurance that it will be realized, and in the meantime the security of the plaintiff’s mortgage is being seriously depredated. Until, therefore, the defendant shall show some tangible evidence of the realization of his plan, the court must consider his present operations upon the premises, under the evidence, as waste, from which the plaintiff is entitled to relief.</p> <p>Until, therefore, the defendant shall exhibit to the court some proof of contracts for houses actually made with responsible ■parties, or in some other way satisfactorily show that his present scheme is more than a mere contingent operation, or further secure the plaintiff from probable loss in case the defendant’s project should fail, we feel it to be our duty to grant the preliminary injunction prayed for, upon the plaintiff giving the usual security in the sum of $1,000, with leave to defendant at any time 'to move for a dissolution of the injunction on five days’ notice.</p> <p>Subsequently the defendant, Martin, moved to dissolve the preliminary injunction, and contended that the excavations complained of were for the purpose of opening a street through the land. On this point the depositions in support of the notice were -contradictory.</p> <p>Upon overruling the motion Boyer, P. J., delivered the following opinion:</p> <p>Since the issuing of the preliminary injunction in this case nothing has appeared to alter the view of the court in according ■to the plaintiff the protection he sought by his bill. Eleven disinterested witnesses have, in their affidavits, testified that the .acts of the defendant have depreciated the value of the property, .and if allowed to proceed will continue further to reduce the •market value of the property and endanger the security of the plaintiff’s mortgage. Against this testimony the defendant has ■made but a feeble showing, and has not established either the necessity of his acts or the likelihood of their not resulting in ‘the depreciation of the premises.</p> <p>The defendant’s theory for the excavations upon the ground may be correct, but it is speculative; and he is unfortunate in being alone in his views of the improvement of the property thereby.- In the eyes of others his excavations are waste. Erom ■this the mortgagee is entitled to protection until the defendant, 'by reducing the amount of the mortgage, or by some other satisfactory arrangement, has sufficiently secured the mortgagee from ■probable loss by his experiment. And now, February 7, 1887, •ffche motion to dissolve the preliminary injunction is overruled.</p> <p>Tbe assignments of error specified tbe action of tbe court in .granting the preliminary injunction, and in refusing to dissolve it.</p> <p>— A preliminary injunction should never be granted, except in a clear -case of right, and in order to prevent irreparable injury. Au-denried v. Philadelphia & P. P. Co. 68 Pa. 370, 8 Am. Pep. 195; Brown’s Appeal, 62 Pa. 17; Clark’s Appeal, 62 Pa. 447; Leininger’s Appeal, 106 Pa. 398.</p> <p>If the damages are susceptible of compensation, no injunction ■•should be granted. Richards’s Appeal, 57 Pa. 105, 98 Am. Dec. :202; Mayer’s Appeal, 73 Pa. 164.</p> <p>— A mortgagor in possession is •considered the owner of the property, and he may exercise all the rights of ownership. But if the security is insufficient, an injunction may go against a mortgagor. Bispham’s Eq. § 433, -p. 482.</p> <p>The mortgagor may exercise the rights of an owner while in possession, provided he does nothing to impair the security; ••and a court of chancery will always, on application of the mortgagee, and with that object in view, stay the commission of waste by the process of injunction. 4 Kent, Com. § 161.</p> <p>The gist of the cause is showing that the security is being impaired. In the case at bar, the mortgage was given for the full amount of the purchase money of the property; and it is but reasonable to suppose that the amount of the mortgage showed the actual value of the property at the time of the sale, and that •any act that would render the value of the property less than it was at the time of sale would also render the security of the mortgagee insufficient.</p> <p>The two brief opinions filed by the court below are conclusive upon the question at issue, with which we do not doubt this court will concur after examining the affidavits (on its merits, with reference to the matters upon which the court below granted •the interlocutory injunction), and say that the discretion of the •■court was rightly exercised, this being all that this court has -ever done, in the hearing of an appeal on a preliminary injunction. Hoffman’s Appeal, 10 W. N. C. 401; Paxson’s Appeal, 106 Pa. 429.</p>

The petition of J. M. Albertson, filed in October, 1885, represented : That Ninian Irwin died May 5, 1877, leaving a last will and testament which was duly proved before the register of wills of said county after the said testator’s death, and letters testamentary thereon were by said register duly issued to his widow, Nghcy Adelaide Irwin, and that on February 5, 1881, the said execijtrix filed a first account and that since said time she has filed no account.

The facts appear from the following portions of the charge by Pershing, P. J.: By an act of assembly passed April 7, 1873, William IT. Barlow, John R. Porter, and Philip Hnntzinger were appointed commissioners to view, lay out, and open a road, beginning at a point in Schuylkill county and extending to a point in Luzerne county.

This was a bill filed by Tbomas Jackson against Charles K. Miller and Andrew Ervin. Held: in its new form, liable to the rights of the original owner, etc. Id. § 1258.

<p>Error to the Common Pleas of Luzerne County to review a judgment confirming a referee’s report for the plaintiffs in an action of ejectment.</p> <p>The facts as found by the referee, Geo. K. Powell, Esq.,— appointed under the act of April 6, 1869, and its supplements, relating to Luzerne county — are stated in his report, which was as follows:</p> <p>The action is one of ejectment and involves a lot of land situate in the fourteenth ward of the city of Wilkesbarre.</p> <p>The plaintiffs made out a prima faeie case without contest, establishing the following facts, to wit:</p> <p>1. John Batterton was the owner of the tract in dispute in 1872, and in that year contracted in writing to sell the same to Elizabeth Carey, the defendant, who thereupon took possession and has retained the same ever since.</p> <p>2. On June 1, 1876, Elizabeth Carey assigned the said contract to Dr. J. P. Nought, acknowledging under seal the receipt from said Nought of the full consideration money.</p> <p>3. The same da.y John Batterton, the holder of the legal title,, conveyed the same by deed to said Nought, who simultaneously executed and delivered a mortgage of the premises to John Pair-child to secure $800 loaned by Fairchild to Nought, for the express purpose of paying Batterton the purchase money due him.</p> <p>4. The loan thus secured not being paid, the administrators of Fairchild, who had meantime died, caused a writ of scire facias to be issued in 1881 upon said mortgage, prosecuted it to judgment, sued out a writ of levari facias thereon, by virtue of which a sheriff’s sale of the land in question was made, at which they, said administrators, became the purchasers.</p> <p>5. The title having thus become vested in them by a sheriff’s deed duly acknowledged, the plaintiffs instituted this action to. recover possession against both Elizabeth Carey and J. P. Nought.</p> <p>All those facts were practically admitted; but, Dr. Nought having formally entered a disclaimer before trial, Mrs. Carey alleged, in defense of her right to possession, that simultaneously with her assignment to Nought, and as the sole inducement to aiid sole consideration for it, John Fairchild agreed that if she would so assign her contract, thereby enabling Nought to mortgage to Fairchild, he, Fairchild, would pay her the amount of money she had paid upon and put into the property, viz., about. $440, and further agreed that she should retain possession of the property till he paid her the said sum.</p> <p>To establish said defense Mrs. Carey offered Dr. J. P. Nought as a witness, and, though plaintiffs’ counsel vigorously objected-the referee took, the testimony of said witness.</p> <p>After a very careful consideration of the many authorities. cited by counsel, — especially of Arthurs v. King, 84 Pa. 525; Murray v. New York, L. & W. K. Co. 103 Pa. 37; Tinstman v. Croushore, 104 Pa. 192, and Karns v.'Tanner, 66 Pa. 297,— the referee is of the opinion that he erred in admitting the testimony of said Nought; and hence does not consider it in arriving at his decision of the case. Dr. Nought is incompetent, both because of interest and because called to impeach his own title and that of his mortgagee.</p> <p>In the language of the court in Arthurs v. King, 84 Pa. 525: “Before the passage of the act of April 15, 1869, he would have been incompetent on the ground of interest; and we cannot see that he is in any better position since.”</p> <p>William McDermott, William Nandermark, and Peter Miller were also produced by the defendant and examined. Their testimony 'would be strongly corroborative of Dr. Nought’s, but relates only to declarations of John Fairchild, subsequent to the alleged agreement- and hence is not, of itself, sufficient to establish a contract. See Plumer v. Guthrie, 76 Pa. 441; Nicolls v. McDonald, 101 Pa. 514.</p> <p>The referee therefore finds the following conclusions of fact:</p> <p>1. The defendant, Elizabeth Carey, went into possession of the land described in the writ in 1872 by contract of purchase from John Batterton, the owner, and has remained there ever since.</p> <p>2. On June 1, 1876, she, said defendant, assigned her interest in said land and contract, by a conveyance in writing duly executed, to J. P. Nought, acknowledging in said conveyance to have received from said Nought full consideration therefor, and on the same day John Batterton, the holder of the legal title, conveyed the same to said Nought, who at the same time executed and delivered a mortgage of the said land to John Fairchild to secure $800 loaned by said Fairchild to said Nought, the same being the balance then and there paid to Batterton in full of his contract with Elizabeth Carey.</p> <p>3. John Fairchild died in 1879, intestate; and, said mortgage being overdue and wholly unpaid, the plaintiffs, his administrators, caused a writ of scire facias thereon to issue against J. P. Nought, regularly obtained judgment and became the purchasers of the land in question at a sheriff’s sale on a writ of levari facias issued upon said judgment, — the sheriff’s deed being duly acknowledged prior to the issuing of the writ in this case.</p> <p>4. Nought, the other defendant named in the writ, has occupied the premises since 1872, with the exception of about two weeks, but filed a disclaimer just prior to this reference.</p> <p>5. Elizabeth Carey defends this action solely on the ground of her contract from Batterton, and an alleged unconditional verbal promise from John Fairchild, at the time of her conveyance to Vought, to pay her some $400, the amount she had paid Batterton on her contract, including taxes and insurance, and to allow her to remain in possession until she got her money, with the further allegation that this was the consideration of her conveyance to Vought, and that neither the latter nor Fairchild ever paid her anything for her assignment.</p> <p>6. No improvements have been put upon the property since the date of the Batterton contract. The purchase money thereof was $1,025, and an execution on a confession of judgment in the contract at the suit of Batterton v. Carey, for purchase money in arrear and due, was in the sheriff’s hands on June 1, 1876, .aforesaid.</p> <p>7. It is not proven that the alleged verbal promise was ever made by John Fairchild.</p> <p>The foregoing cover all the requests to find matters of fact •submitted by the plaintiffs except the one numbered “7” in ’“plaintiffs’ points” hereto attached, which is not found,'because the referee does not think it pertinent to the issue.</p> <p>As conclusions of law the referee finds:</p> <p>1. That the plaintiffs’ proofs malee out a prima facie case.</p> <p>2. That no defense to the plaintiffs’ claim is established by competent evidence.</p> <p>3. That the plaintiffs are entitled to a judgment for the land described in the writ.</p> <p>The plaintiffs, by their attorney, submitted requests to find eight matters of law, which, with the referee’s answers, are as follows, to wit:</p> <p>That under the defense set up by Elizabeth Carey the plaintiffs were not required to show title in them, further back than from those whose title is shown by the evidence to have been conveyed to Batterton.</p> <p>Am. The referee so finds.</p> <p>J. P. Vought was an incompetent witness for the defense, of the alleged verbal promise of Fairchild, both by reason of interest and on account of the policy of the law; and his evidence should be excluded in considering the truth or falsity of such allegation.</p> <p>Am. The referee so finds.</p> <p>Without testimony of any witness present when the alleged verbal promise was made, it cannot be sufficiently proven by evidence of subsequent declarations of Fairchild.</p> <p>Ans. The referee so finds.</p> <p>Even though the alleged verbal contract of Fairchild is satisfactorily and sufficiently established by the evidence, it is void under the statute of frauds and perjuries, and is no defense to this action.</p> <p>Ans. The referee does not so understand the law of the case, and declines to so find.</p> <p>Even though the alleged verbal contract of Fairchild be sufficiently proven by competent oral testimony, and be valid notwithstanding the statute of frauds and perjuries, it created no interest in, or lien or charge upon, the land, available as a defense to this action which was not discharged by the sheriffs sale on the mortgage.</p> <p>Ans. The referee declines to so find, both because he does not think it material as the case now stands, and because he considers that if the alleged contract were proven it would avail and defeat a recovery.</p> <p>The defendant is barred from setting up said alleged verbal contract, irrespective of the statute of frauds and perjuries, or the sheriffs sale under the act of limitations of March 27, 1718, P. D. 930, old ed.</p> <p>Ans. The referee declines to so find, and is of the opinion . that it was not necessary for Mrs. Carey to become the aggressor, but that she had the option to set up and prove the alleged contract by way of defense as to an action of ejectment.</p> <p>Even though said alleged verbal promise be valid and effectual at this time and in this action, the defendant must account to the plaintiffs at the same time for the rents, issues, and profits of the property since June 1, 1876.</p> <p>Ans. The referee declines to so find because he does not consider it necessary to consider that question in coming to a decision of this case.</p> <p>The plaintiffs are entitled to an unconditional recovery in this case, and judgment should be entered for them for the land described in the writ.</p> <p>Ans. The referee so finds, for the reasons fully set forth above.</p> <p>Judgment should therefore be entered in favor of plaintiffs and against the defendant, for the land described in the writ.</p> <p>The defendant’s exceptions to the referee’s report specified, inter alia, the rejection of Dr. Vought as an incompetent witness ; and the action of the court below in overruling the exceptions on this point was assigned as error.</p> <p>— Dr. Vought has no real, legal interest whatever in the result of this suit. He has no interest in the title to the land; for whatever interest he may have had passed by the judicial sale, and is disavowed by his disclaimer. He has no interest in the possession; for, having disclaimed, any attempted possession would be trespass. He has entered into no covenants with either party to the suit, and cannot therefore be charged with, or relieved from, the performance of any. He cannot be charged with costs, by reason of his disclaimer. He cannot be charged with mesne profits for any alleged possession prior to his disclaimer; for by rule 13 of our common pleas “if the plaintiff in ejectment intends to claim mesne profits he shall file a statement of the amount claimed, and length of time during which time he demands said profits, and give notice of the same to the defendant or his attorney, by copy of such statement, at least thirty days before the trial. On failure so to do, he shall not be permitted to claim mesne profits in that suit.”</p> <p>No such statement was filed or notice given. Besides, any liability for mesne profits would necessarily arise after the sheriff’s sale to the defendants in error; for up to that time Dr. Vought was the owner of the property. The sheriff’s sale, however, occurred after the death of John Fairchild. Dr. Vought is therefore a competent witness on the question of mesne profits, whenever it properly arises.</p> <p>The witness cannot be said to be interested because of any possible liability to Mrs. Carey; for, having persistently asserted that the agreement was with Mr. Fairchild, she is estopped from asserting it to have been with anyone else; and even if she were not estopped, the result of this suit would determine nothing as to the liability or nonliability of any person aside from the parties to the suit.</p> <p>Interest, to'exclude a witness, must be a real, legal interest, dependent upon the result of the suit, and not a speculative or possible interest. Updegraff v. Howland, 52 Pa. 317; Eees v. Livingston, 41 Pa. 113; Harlan v. Harlan, 20 Pa. 303; 1 Greenl. Ev. §§ 386, 387.</p> <p>Since the act of 1869, the court should discountenance all objections on the score of interest or policy, unless made clearly to appear.. McClelland v. West, 70 Pa. 183.</p> <p>The award of arbitrators, in the trial of an appeal from it, is not evidence; and it is error to permit it to be read. Shaeffer v. Kreitzer, 6 Binn. 432, 433.</p> <p>The title of Dr. Yought is identical with that of the defendants in error, the transfer having been by judicial sale. That title, so far as this suit is concerned, depends upon the validity of Mrs. Carey’s assignment of the Batterton contract. If that assignment is valid, then the title is valid; and any impeachment of the title by her must be an impeachment of her assignment. She makes no attack upon the title, either intentional or incidental. The validity of her defense depends upon the validity of her assignment, because her defense is an effort to maintain a claim for the consideration upon which the assignment was made; and any assertion of a claim for consideration necessarily asserts the validity of the instrument or transaction for which the consideration is claimed. So, also, any testimony going to the establishing of such a claim would also necessarily tend to the validating of the transaction on which the claim was made. Nor does the fact that the claim for consideration in this case includes the possession of the property for an indefinite time alter the case; for a consideration may be any lawful thing upon which the contracting parties agree. Nor does the claim to the right of possession impeach the title of the owner; else every claim to possession by a tenant would be an impeachment of his landlord’s title.</p> <p>— This case is excepted from the operation of the act of April 15, 1869, removing ineompetency of persons and parties as witnesses from interest or policy of law, and stands as though that act had not been passed.</p> <p>This is an action by administrators to enable the estate they represent to realize on a mortgage for the land in question given to their decedent and foreclosed by them in due course of the settlement of the estate. It is a case where the assignor of the thing or contract in action is dead. Arthurs v. King, 84 Pa. 525; Karns v. Tanner, 66 Pa. 297; Murray v. New York, L. & W. R. Co. 103 Pa. 37; T'instman v. Croushore, 104 Pa. 192; IToopes v. Beale, 90 Pa. 82; Taylor v. Kelly, 80 Pa. 95.</p> <p>Tbe witness Yought was called to show, in direct contradiction of the Carey deed of assignment to him, and its acknowledgment that he had paid her the full consideration, that he in fact had not done so. This would leave him still liable to her for such consideration money according to the written papers; and her defense prevailing, that liability would be wiped out. But he was called to show, further, that his own liability under the papers was'no' liability at all, and that the decedent was the man who, by parol, promised to pay the consideration of the Carey deed to him. A witness prima facie liable on a contract cannot, by his own testimony, controvert such liability, and thereby remove his prima facie incompetency as a witness on the score of interest. Meason v. Kaine, 63 Pa. 335; Purviance v. Dryden, 3 Serg. -& It. 402; Hinckling v. Pitch, 1 Miles (Pa.) 208; Tlogeboom v. Gibbs, 88 Pa. 237.</p> <p>Yought was an incompetent witness by reason of the policy of the law; because by his oral testimony it was sought to impeach the title to him, as also his contemporaneous mortgage to our decedent and our subsequent title under the sheriff’s deed, on the foreclosure of the mortgage, by subjecting the Carey title to him, our mortgage and sheriff’s deed to an adverse right of possession in Mrs. Carey, as against the plain terms and legal effect of those conveyances. This the policy of the law does not allow. Murray v. New York, L. & W. P. Co. 103 Pa. 37; Mclldowny v. Williams, 28 Pa. 492.</p> <p>The testimony of Yought was of a transaction between himself, Mrs. Carey and our decedent, whose mouth is closed. It was therefore incompetent, as against the policy of the law on that score. Arthurs v. King, 84 Pa. 525; T'instman v. Croushore, 104 Pa. 192; Karns v. Tanner, 66 Pa. 297; Graves v. Griffin, 19 Pa. 177; TIoopes v. Beale, 90 Pa. 85.</p> <p>A party alleging error in this court must not only point it out but show that he has thereby suffered an injury; otherwise, the judgment will not be reversed here. Unangst v. Kraemer, 8 Watts & S. 391; Peterson v. Speer, 29 Pa. 478.</p> <p>The whole of Yought’s excluded testimony fails to establish any verbal contract of the character alleged, with that precision which the law demands to overthrow a title evidenced by deed, and is insufficient in itself to submit to a jury. Woods v. Par-mare, 10 Watts, 195; Ohaxnley v. Hansbury, 13 Pa. 16; Hart v. Carroll, 85 Pa. 508.</p> <p>If such alleged contract was a verbal mortgage or in the nature thereof, it is not recognized in the law, and is no defense whatever to an ejectment. Bower v. Oyster, 3 Penr. & W. 239; Shitz v. Dieffenbach, 3 Pa. St. 233.</p> <p>Whatever the legal character of such alleged contract, its vitality perished with the sheriff’s sale. Campbell’s. Appeal, 36 Pa. 247, 78 Am. Dec. 375.</p> <p>Our sheriff’s sale on that mortgage discharged all claim of title or liens arising between the date of Batterton’s contract and such sheriff’s sale. Barb v. Sayers, 107 Pa. 246; Pierce v. Gardner, 83 Pa. 211; Thompson v. Adams, 55 Pa. 479; Bower v. Oyster, 3 Penr. & W. 239.</p> <p>An action of ejectment- can neither be defended nor maintained in Pennsylvania against the legal title, except on an outstanding lease, or an equitable interest in the land itself; or a mortgage or a lien charged upon the same; or upon a condition broken; either of which must be manifested in writing as the law demands. There is no writing in this case. As already shown, the alleged contract was void as a mortgage. It was void as a lease after three years from June 1, 1876. Whiting v. Pittsburgh Opera House Co. 88 Pa. 100; McCafferty v. Gris-wold, 39 Phila. Leg. Int. 392; Wheeler v. Conrad, 6 Phila. 209.</p> <p>It was in no sense a contract of sale; and if it were, it was not taken out of the statute of frauds, because there were no improvements. Whiting v. Pittsburgh Opera House Co. 88 Pa. 100.</p> <p>Possession was not taken but merely continued. Aitkin v. Young, 12 Pa. 15; Christy v. Barnhart, 14 Pa. 260, 53 Am. Dec. 538; Myers v. Byerly, 45 Pa. 368, 84 Am. Dec. 497.</p> <p>It was not an implied equitable lien for purchase money, as there can be none where the vendor never had or has parted with the legal title. Kauffelt v. Bower, 7 Serg. & B. 64, 10 Am. Dec. 428, and Semple v. Burd, 7 Serg. & B. 286; Megargel v. Saul, 3 Whart. 19.</p> <p>It was void as an express lien for purchase money in the conveyance to Vought, because not therein declared and set forth, but distinctly negatived thereby. Kensinger v. Smith, 94 Pa. 384.</p> <p>And it was not a conveyance upon condition, but only upon an alleged consideration amounting to a covenant. Cook v. Trimble, 9 Watts, 15 ; Perry v. Scott, 51 Pa. 119.</p> <p>And even if a condition, it -was void because neither written in the conveyance nor elsewhere. Cook v. Trimble, 9 Watts, 15; Bear v. Whisler, 7 Watts, 144.</p>

The facts as they appeared at the trial before Woodward, A. L. J., are stated in the opinion.

and the service of the writ set aside in an action of trespass on the case for negligence.

This was an action by Israel Laucks and S. K. Meyers lately trading as Laucks & Meyers, now to use of Israel Laucks, against John P. Martin and Douglas Barr, lately trading together in the firm name of J. P. Martin & Co. The plaintiffs filed a copy of their book of original entries.

<p>Appeal from a decree of tbe Orphans’ Court of Montgomery County confirming the sale of a decedent’s real estate.</p> <p>Murtey Lawley died July 30, 1884, leaving a widow and several children, and a will in wbicb be appointed Michael Murray his executor.</p> <p>The executor refused to act, and a citation was thereupon served on the widow and children of the decedent, on the petition of one of his creditors, to appear before the register of wills of Montgomery county and take out letters of administration c. t. a. The widow and children refused to administer, and at their solicitation and request James E. Miller was appointed administrator c. t. a. by the register of wills, Eebruary 16, 1885.</p> <p>There being no personal estate the administrator, on November 20, 1885, petitioned tbe orphans’ epurt to sell tbe real estate of tbe decedent for the payment of debts. Tbe petition was granted; the property was sold for $200, and the return was filed January 18, 1886.</p> <p>During all this time the widow made no claim for her exemption.</p> <p>After the return to the order of sale was filed the widow filed the following exceptions:</p> <p>1. The real estate, consisting of about one-fourth acre with two-story house thereon, was sold by said James E. Miller, administrator c. t. a., on an order of said court, as appears by the order of and his return to said court, made January 18, 1886, to one Ellen Kearns for the price or sum of $200, which sum is inadequate and far below the value of the property, which was appraised at $315, as she is informed.</p> <p>2. The exceptant, the widow of the decedent, claims that she was never cited to elect to take or refuse to take under the will of the decedent; that she is ignorant of her duties and of her rights, and she claims the exemption allowed her as the widow' under the acts of assembly in such case made and provided; that she is very aged and poor, and she demands an appraisement under the exemption law of 1851 and its several supplements.</p> <p>In the depositions taken upon the exceptions the exceptant testified, inter alia, as follows:</p> <p>“I can’t say how old I am; I might be sixty or so; my husband, Murtey Lawley, is dead; I claim the benefit of the exemption or $300 law out of his estate; he left nothing but a little house and a little lot of land; I did not claim it before you (Mr. Corson) filed my petition, or rather exceptions to the sale, in court, because I did not know any better, and I thought the law would give it to me without my making any claim for it; I can neither read nor write; I was never told before the sale of the lot that I had to make a claim to get my rights; my brother told me I had to claim the $300 law to get my claim, and then I was advised to employ you (Mr. Corson) as my lawyer.” . . .</p> <p>Q. Mrs. Lawley, before Mr. Miller administered, did not I (Mr. Tracy) tell you you could claim the exemption, and you could get tiie property so that the children would have nothing to do with it ?</p> <p>A. I said I would not have anything to do with it, the property should be sold; nothing was said about the $300 law, before God; nothing till my brother told me to do it after the sale, or I would have attended to it.</p> <p>Mr. Tracy testified, inter alia, as follows.</p> <p>“Before letters of administration were granted, I saw Mrs. Lawley and told her the estate would have to be settled up; I told her she could claim the exemption, and that the property could be fixed so the children would have no claim on it; she says, T will have nothing to do with it; it will have to be sold.’ ”</p> <p>Upon dismissing the exceptions and confirming the sale, Boyer, P. J., delivered the following opinion:</p> <p>These exceptions are on the part of the widow of decedent, who claims that the property ought not to have been sold, but appraised to her at least to the extent of $300 under the act oí assembly entitling a widow to have appraised and set apart to her $300 worth of the estate of her deceased husband. But unfortunately she never made such claim until after the administrator had obtained an order from the orphans’ court to sell the property for the payment of debts, and actually advertised and sold the same at public sale. Under all the authorities upon the subject she is now too late. It would even do her no good to have the present sale set aside, for the expenses of the proceedings have been already incurred; and she is no longer in a situation to claim her exemption. I cannot help thinking, however, that the administrator ought to have been at greater pains to explain to her her rights as widow, although there is no express provision of law commanding him so to do. The decisions excluding her from her right to have the property appraised for her benefit at this time are, however, too unqualified and uniform to be disregarded. And now, April 2, 1886, the exceptions are dismissed and the sale confirmed.</p> <p>The assignment of error specified the action of the court in dismissing the exceptions filed by the appellant and in refusing to allow her claim to the exemption provided by law for her as widow of decedent.</p> <p>— “The widow or the children of any decedent dying within this commonwealth, testate or intestate, may retain either real or personal property belonging to said estate to the value of $300, and the same shall not be sold, but suffered to remain for the use of the widow and family; and it shall be the duty of the executor or administrator of such decedent to have the said property appraised in the same manner as is provided in the act- passed the 9th of April, in the year 1849, entitled 'An Act to Exempt Property to the Value of $300 from Levy and Sale on Execution and Distress for Rent’ ■ — provided that this section shall not affect or impair any liens for the purchase money of such real estate. And the said appraisement, upon being signed and certified by the appraisers and approved by the orphans’ court, shall be filed among the records thereof.” Act of April 14, 1851, P. L. 613.</p> <p>This act is positive and requires no election by the widow. Then comes the act of April 8, 1859, P. L. 425, giving her the right to elect to retain the same, or any part thereof, out of any bank note, money, etc. "And that in all cases hereafter where property shall be set apart for the widow, ... of any decedent, the same shall be appraised and set apart to said widow and children by the appraisers of the other personal estate of said decedent.</p> <p>— A demand for an appraisement is too late after tire administrator has incurred expenses in proceedings to effect a sale of the real estate. Rhone, Orphans’ Court Pr. 295; Davis’s Appeal, 34 Pa. 256; Baskin’s Appeal, 38 Pa. 65; Tibbin’s Estate, 5 Phila. 100; Neff’s Appeal, 21 Pa. 243; Cranse’s Estate, 6 Phila. 71, 72; Somers’s Estate, 9 W. N. C. 559; Ilufman’s Appeal, 81 Pa. 329; Hunt’s Appeal, 12 W. N. O. 562.</p> <p>It was no part of the duty of the administrator to set aside the widow’s exemption until after demand made. Williams’s Appeal, 92 Pa. 71; Neff’s Appeal, 21 Pa. 243.</p> <p>Laches or negligence destroys the title to relief. Scott’s Appeal, 17 W. N. O. 440; Cremer’s Estate, 7 W. N. O. 544.</p>

This was a feigned issue in sheriff’s interpleader, in which the H. W. Collender Co., claimant of the goods taken in execution, was the… Held: a bailment and not a sale. In Rowe v. Sharp, 51 Pa. 26, Sharp, by writing, let to Goff two billiard tables for nine months, and Goff was to use them at his place of business, pay a certain sum for their use, and at the end of the term to redeliver them; and if then Goff had complied with the covenants of the agreement Sharp was to…

<p>Error to the Quarter Sessions of Northumberland County to review a judgment dismissing a motion to strike off an appeal from an order of removal of a pauper, and discharging the order.</p> <p>This was an appeal by the overseers of the poor of Howard township from an order obtained by the overseers of Lower Augusta township for the removal of O. Perry Randal, a pauper, from the former to the latter township, dated May 16, 1885.</p> <p>On June 3, 1885, the, appellants served on the attorney for the appellees a notice that the former had “appealed to the next court of quarter sessions of the peace to be holden for the said county of Northumberland,” and that the appeal would be “duly prosecuted at the next court to be holden as aforesaid:”</p> <p>Further service of this notice was waived on the part of the overseers of Lower Augusta, by their attorney, on the same day. According to this notice the overseers of Lower Augusta township attended the September sessions to meet the appeal, but no appeal came up during that session. At an argument court, Leld on June 22, 1885, -without notice to the appellees, the appellants presented their petition to the court, in which they “begged that an appeal may be allowed them,” and the court indorsed on the back of the petition “appeal allowed,” and ordered it to be put on the next argument list, which list, under the rules of court, was to be argued on the fourth Monday in September, after the September sessions were over, the court having, on May 27, preceding, ordered that sessions to last three weeks from the first Monday in the month. The cause came before the court for trial October 26, when the appellees presented a motion to strike off the appeal and confirm the order of removal. This motion the court ordered to be put on the next argument list, and both parties agreed to a continuance until the next term, when the case was heard.</p> <p>Rockefeller, R. J., upon overruling the motion to strike off the appeal and discharging the order of removal, filed the following opinion:</p> <p>Oliver Perry Randal, the pauper, was born in Clearfield county, Pennsylvania, in January, 1845. At an early age he came with his father to Howard township, Centre county. In August, 1862, he enlisted for nine months in the 136th Pennsylvania Volunteers.</p> <p>He was discharged in May, 1863, and remained at home until March, 1864, and then enlisted in a Pennsylvania Artillery Company, and served until January, 1866, when he was finally discharged from the military service at or near Richmond, Virginia. He then entered the service of the Freedmen’s Bureau as a clerk, and served therein until about April, 1868, when he was employed as a clerk by Captain W. A. Elderkin, a commissary of subsistence in the United States Army.</p> <p>He remained with Captain Elderkin until April, 1876. At that time the captain was transferred to another station, and Randal did not go with him. He seems to have left the government employ and remained at Pueblo, county of Pueblo, Colorado, during the year from April, 1876, to April, 1877. During this year he had his wife and children with him, and kept house in Pueblo. He did what he could to make a living, and on the 13th of September, 187 6, he was appointed to fill a vacancy in the office of county clerk of Pueblo county, an office to which only a qualified voter, resident for one whole year in the county, was eligible. He filled the office until in December, 1876, having in the meantime been an unsuccessful candidate before his party convention for nomination to the same office.</p> <p>He remained in Pueblo until April, 1877. On the 27th of March, 1877, he wrote his father that he was “not doing anything regularly this month, but have managed to pick up enough to cover expenses. I shall try to remain here until fall and try again for the county clerk’s position. If not I may go to Elder-kin again.” See also letters to his sister.</p> <p>He was regularly assessed with taxes for the year 1876, and paid the same. He had also connected himself with a Masonic lodge. In April, 1877, he again took service with Captain Elderkin, and remained with him until July, 1882, when he was again out of government employment until March, 1883, when he was again employed by Captain Elderkin, and served until March, 1884, when he finally left the government service. He then came back to Pennsylvania, and went to Philadelphia to obtain employment, having also visited his father in Howard township. It seems he was unable to find employment. Just how and where he lived for some time does not appear; but part of the time he was with his father in Howard township. In February, 1885, he came to Lower Augusta township, Northumberland county, where he had a sister living, and was there placed on that township as a pauper. It is a singularly pitiful case.</p> <p>On the 16th of May, 1885, the overseers of the poor of Lower Augusta took out an order of removal to Howard township, Centre county, knowing that the pauper’s father had a settlement there, and believing that the pauper still held his settlement which he had derived from his father. The pauper showed signs of insanity, and was finally taken to the asylum for the insane, at Danville, where he remains, and has continued to grow worse. His father is a good man, but too poor to support him. He (the pauper) has always conducted himself properly, was industrious and sober. Whether he was extravagant in his living does not appear, but his employment seems to have been pretty regular and at fair salaries. His family is at “Richmond, Virginia, with his wife’s friends.</p> <p>The pauper never had a settlement in Lower Augusta township, and haying been removed from that township to Howard township, it became necessary to show that he was last settled there. The evidence shows clearly, and I find the fact, that William Randal, the pauper’s father, gained a settlement in Howard township. He lived there and was assessed with public taxes in 1861, 1862, and 1863, etc., and paid the same. He also owned a small amount of real estate, and indeed, there is no dispute as to his having a settlement in Howard township. The pauper went there with him when a minor, and was a part of his family, and derived a settlement from him. This also is not disputed. Howard township, however, alleges that the pauper abandoned his settlement in Pennsylvania and since gained a settlement of his own in the city of Pueblo, Pueblo county, Colorado; and that being so, he lost his settlement in Pennsylvania.</p> <p>If that is so, then according to the case of Juniata County v. Delaware Twp. 107 Pa. 68, the settlement in Howard township is gone. The pauper having become insane, and having only had a residence and not a settlement in Northumberland county, that county is chargeable with the expense of removal and maintenance, without remedy over against Lower Augusta, if he has been committed by the court of quarter sessions, provided, of course, he has no settlement in Howard township.</p> <p>Perhaps, under the act of 1883, the county and state are jointly to pay such expenses. It is the duty of the court, however, to determine this case as it stands, and according to the law and the evidence. By the laws of Colorado, sixty days’ continuous residence in any county of said state gives the party so residing a settlement for poor purposes in said county. By the 10th section of the act of the legislature of that state, which became of full force and effect on the first day of July, 1868, it is enacted that “the term ‘residence’ mentioned in this chapter shall be taken and considered to mean the actual residence of the party, or the place where he or she was employed, or in case he or she was in no employment, then it shall be considered and held to be the place where he or she made his or her home.”</p> <p>I am of opinion, and so find from the evidence in the case, that O. Perry Randal, the pauper, gained a settlement in Pueblo county, Colorado, by having resided there more than sixty days, he having been employed there and made his home there during that time.</p> <p>Aa to the motion to strike off the appeal, I am of opinion that it cannot be sustained. The appeal was taken in May, at a time when the May term was in session; while the argument court for that term was being held it was filed in court, and directed to be put on the argument court list for the next term or sessions, which was September term. The argument day was fixed by rule of court; but that day generally comes on the Monday following the week for which the term is ordered to continue. It is impossible to stop jury trials and take up cases of this kind during those weeks; and it has always been the practice to hear cases appealed to the next term on the argument day.</p> <p>In this case the party had appealed in time and filed it before the next term, and the only thing that can be said is that the clerk made a mistake in docketing it to the May sessions instead of the September sessions. The cases decided are all cases where it was alleged that the appeal was taken too late. In this case the appeal was regularly taken in May, and notice given that it would be heard at the next term. The parties did all they could and will not be allowed to suffer on account of a supposed mistake of the court or the clerk.</p> <p>In point of fact, the September sessions were, by order of court, continued over the argument day, the time fixed for the hearing.</p> <p>The order of removal is discharged.</p> <p>The assignments of error specified the action of the court in refusing to strike off the appeal and in discharging the order of removal.</p> <p>This case was never appealed to or tried in the next sessions after the order of removal was taken out; in fact there never was an appeal at all, and the notice received by the plaintiffs in error was not a notice of the time when an appeal was allowed by the court or of the time when the case was tried.</p> <p>Section 19 of the act of ‘June 13, 1836 (P. L. 546), says: “Provided always, That any person aggrieved by any such order of removal, may appeal to the next court of quarter sessions, for the county from which such poor person may be removed, and not elsewhere; and if there be any defect of form in such order, the said court shall cause the same to be amended, without cost to the party, and after such amendment if the same be necessary shall proceed to hear and determine the cause upon its truth and merits; but no such cause shall be proceeded in, unless reasonable notice shall have been given by the party appellant to the overseers of the district from which the removal shall have been made, the reasonableness of which notice shall be determined by the said court at the session to which the appeal may be made; and if it shall appear to them that reasonable notice was not given, they shall adjourn the appeal to their next session and then determine the same.”</p> <p>The appeal cannot be taken to any other court than the next court of quarter sessions after the order of removal is taken out. Northampton County v. Limestone Twp. 68 Pa. 388.</p> <p>The policy of the statute is to commit pauper cases to the jurisdiction of the quarter sessions, that speedy relief and justice may be administered. Sugarloaf Twp. v. Schuylkill County, 44 Pa. 483.</p> <p>A term of court is a fixed period of time, and an argument court is not a part of a sessions. Cherry Twp. v. Marion Twp. 96 Pa. 532.</p> <p>We will admit that the practice has been in our court to allow appeals in cases of this kind at any court before the next court of quarter sessions; but we think it time, with all due deference to the court below, to let the statute take the place of the practice.</p> <p>In those cases under the poor laws in which a special remedy is provided in the court of quarter sessions that remedy must be pursued. By § 13 of the act of March 21, 1806, 4 Smith, 312, • — -a statute of frequent reference in our books, — in all cases where a remedy is provided or duty enjoined or anything directed to be done by an act or acts of assembly of this commonwealth, the directions of said acts shall be strictly pursued; and no penalty shall be inflicted or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act or acts into effect. Chester County v. Malany, 64 Pa. 148.</p> <p>When a person having a domicil and settlement moves from Pennsylvania, he does not lose that settlement until he acquires a new domicil and settlement in the state to which he goes. When he removes from this state and acquires a domicil and a settlement in another, he has no settlement in Pennsylvania. .Tuniata County v. Delaware Twp. 107 Pa. 74.</p> <p>Randal certainly never gained a domicil in Colorado, because he never had a true, fixed and permanent home there.</p> <p>— Randal’s settlement in Pennsylvania was lost by reason of his having acquired a later settlement in Colorado.</p> <p>His settlement in Pueblo county having been established, the law is clear that his settlement in Howard township was lost forever.</p> <p>The settlement of a person continues until he gains a new one. When he removes from this state and acquires a domicil and settlement in another, he has no settlement in Pennsylvania. It might be provided that he should have, by statute, or by long established usage, but is not. Juniata County v. Delaware Twp. 107 Pa. 69.</p> <p>Where neither the paupers nor their parents are or were citizens of this state, they must be treated as strangers, and, for the present, that district must be regarded as their place of settlement in which they first became chargeable. Limestone Twp. v. Ohilisquaque Twp. 87 Pa. 294.</p> <p>If the appeal was improperly docketed to the May sessions by the clerk, the May sessions having passed and the next term being the September sessions, it was no fault of the appellants; and the court very properly says that they shall not suffer on that account. The intention of appellants, as is shown by the record, was clearly to appeal to the next court of quarter sessions; and they did all that could be required of them to do, viz., by bringing the case within the jurisdiction of that court in due time. After the case is in the sessions that court has surely control over the business of the court to say when a case shall be heard.</p>

Certiorari sur appeal from a decree of the Common Pleas of Erie County dismissing exceptions to an auditor’s report, and ordering distribution of the proceeds of a sheriff’s sale of real estate. This was an action of scire facias sur mortgage, in which judgment was entered for the plaintiff, and thereupon the mortgaged premises were sold on levari facias.

This was a bill for an injunction to restrain tbe defendants, tbe chief burgess, assistant burgesses, members of the town council, and supervisor of the borough of Mt. Carmel, from obstructing a road.

The indictment contained three counts, the first of which was as follows: “The grand inquest of the commonwealth of Pennsylvania, inquiring for the connty of Northumberland, upon their oaths and affirmations, respectively, do present that John Becker and August Broskie, late of said county, yeomen, on the 6th day of September, in the year of onr Lord 1886, about the hour of 12 o’clock in the night of the same day, at the county aforesaid, and within the jurisdiction of this…

This was a feigned issue in which Prank S. Marr, assignee, was plaintiff, and A. G. Marr was defendant, to determine the amount due the plaintiff by the defendant, upon a confessed judgment which had been opened for the purpose of letting the defendant into a defense.

Error tc the Common Pleas of Erie County to review a judgment on a verdict for the defendant in an action of scire facias sur mortgage.

<p>In an action of scire facias to foreclose a mortgage it is no defense that the legal plaintiff gave no consideration for the mortgage; the mortgagor must go further and prove that the equitable plaintiff gave no consideration for it to the mortgagor or his agent.</p> <p>Where land is mortgaged without consideration, for the purpose of enabling the mortgagee as the agent of the mortgagor to negotiate the mortgage, the want of consideration is no defense to an action on the mortgage by an assignee for valuable consideration.</p> <p>Note. — The mortgagee in this case acted as the agent of the mortgagor in transferring the mortgage. Ordinarily the want of consideration can be set up by the mortgagor as against the assignee of a mortgagee who pays nothing for the assignment (Carothers v. Sims, 194 Pa. 386, 45 Atl. 47; Gill v. Hutchinson, 37 Phila. Leg. Int. 293) ; or a failure of consideration (Wilson v. Ott, 173 Pa. 253, 51 Am. St. Rep. 767, 34 Atl. 23) ; or illegality of consideration (Pearce v. Wilson, 111 Pa. 14, 56 Am. Rep. 243, 2 Atl. 99; Riddle v. Hall, 99 Pa. 116). Even if the assignee pays full value, he takes subject to defenses against the mortgagee, of which he is aware, or if he fails to inquire of the mortgagor. Theyken v. Howe Mach. Co. 109 Pa. 95; Myerstown Bank v. Roessler, 186 Pa. 431, 40 Atl. 963; Earnest v. Hoskins, 100 Pa. 551.</p> <p>Thayer’s Appeal, ante, p. 392, is to be distinguished from the principles noted in that the illegality of consideration did not arise between the mortgagor and mortgagee, but between the latter and the first assignee.</p>

<p>The general rule is to permit a sale of any alleged interest in land of the defendant in a judgment. If the defendant has no interest, no title passes.</p> <p>If there he a substantial doubt as to the defendant’s interest, and the particular sale is not forbidden by statute, the question is left to be determined by an action of ejectment.</p> <p>In this case, held, that there was nothing to prevent the application of the general rule.</p> <p>Note. — Execution will not he stayed on the ground that title to land seised is held by another than the defendant in the execution, since the sale could only pass to the purchaser the interest of the defendant. Smith v. Kiskadden, 5 Pa. Co. Ct. 138; Welsh v. Jermon, 4 W. N. C. 55; Smith v. Eline, 4 Pa. Dist. R. 490; Gamble v. Woods, 53 Pa. 158. It is said in Smith v. Eline, 5 Pa. Dist. R. 92, 18 Pa. Co. Ct. 560, 2 Lack. Legal News, 16, that the proper method to secure a permanent stay of execution is by bill in equity, and not by petition and rule, since the effect of the latter is to secure an injunction without the giving of security.</p>

The principal facts as they appeared at the audit of the first account of the executors of William E. Harnee, deceased, before Pi-tone, P. J., are stated in the opinion in Sinclair’s Appeal, 116'Pa. 316, 9 Atl. 637.

The facts were stated by Galbraith, P. J., in the opinion of the court below, which was as follows: It appears from the evidence taken in this case that Clark Olds, Esq., an attorney of this court, was employed by the petitioner to attend to his interest in connection with the settlement of the estate of Daniel Yeager, deceased; that he did give the business his personal care and attention, rendering considerable and valuable service, and that after the whole matter had been…

Tbe principal facts as they appeared at tbe audit of the first .-account of tbe executors of William E. Hance, deceased, before Rhone, P. J., are stated in tbe opinion in Sinclair’s Appeal, 116 Pa. 316, 9 Atl. 637. Tbe appellant’s claim was for a book account of $576.76, witb interest from March, 1878, less $144.19, tbe amount received in compromise in July, 1883, witb interest from that date.

<p>Certiorari sur appeal from a decree of the Common Pleas of Montour County making absolute a rule on the sheriff to show cause why he should not pay into court the amount realized from a sale of personal property on fieri facias.</p> <p>The petition for the rule was as follows:</p> <p>“The petition of Stephen Smith respectfully represents that he is an execution creditor of E. J. Beyer; that fi. fa. No. 7, to May term, 1886, in his suit against E. J. Beyer was placed in the hands of James O. Erazier, sheriff, after said sheriff had received fi. fa. No. 5, May term, 1886, at the suit of Peter M. Dietrich, trustee under the provisions of the 22d section of the act of assembly of April 5, 1881, for Sarah A. Beyer, against E. J. Beyer, and also fi. fa. No. 6, May term, 1886, at the suit of Gideon Dietrich against said E. J. Beyer; that both the judgment of Peter M. Dietrich, trustee for Sarah A. Beyer, and of Gideon Dietrich, the former for $1,396.45 and the latter for $69.45, were entered upon a confession by the defendant; that on the 31st ult. the personal property of defendant, E. J. Beyer, was sold and the sum of $2,866.75 realized; that your petitioner through his attorney gave notice to said sheriff to pay into court the said sum so realized; that your petitioner is informed and believes and expects to be able to prove, if the opportunity is given, the following: that the judgment given to Sarah Beyer, wife of said defendant, is without consideration and fraudulent; that said wife had no such sum to furnish her husband, the defendant, and that the judgment was given for the purpose of securing to defendant his personal property ; that the judgment confessed to Gideon Dietrich is either entirely without consideration or is grossly in excess of any amount due said Dietrich from defendant, and was made thus large for the purpose of aiding the defendant in securing, as aforesaid, his personal property ; that at the sale of said personal property, the property was purchased almost entirely under the direction of the said defendant and at prices dictated by him.</p> <p>“Tour petitioner further sets forth that unless he is permitted to contest the right of said Sarah A. Beyer and Gideon Dietrich to this fund great injustice will be done him, as large amounts of judgment liens are entered against real estate of the defendant prior to his; petitioner therefore prays the court for a rule to show cause why he should not pay into court the suin so realized.”</p> <p>The petition was filed and the rule granted as prayed April 2, 1886.</p> <p>On April 15 the following answer was filed:</p> <p>“James O. Frazier, high sheriff of Montour county, appears and makes answer to said rule as follows:</p> <p>“There was issued from the court of common pleas of Mon-tour county on the 20th day of March, a. d. 1886, a writ of fieri facias, at the suit of Peter M. Dietrich, trustee, under the provisions of the 22d section of the act of April 5, 1851, for Sarah A. Beyer, against E. J. Beyer, to No. 5, May term, 1886. This, execution was placed in my hands at 2 o’clock in the afternoon of said 20th day of March, 1886. Another writ of fieri facias was issued upon the same day to No. 6, May term, 1886, at the suit of Gideon P. Dietrich against E. J. Beyer. This writ wasp-laced in my hands at 3 o’clock in the afternoon of said 20th day of March, 1886.</p> <p>“By virtue of these writs I did, on the 22d day of March, a. d-1886, levy on all the personal property of the defendant, that I could find in my bailiwick and advertised to sell the same on the 31 st day of March, 1886, on which day'I sold the same for the sum of $2,866.75.</p> <p>On the 25th day of March, a. d. 1886, there was issued out of said court a writ of fieri facias to No. 7, of May term, 1886, at the suit of Stephen Smith against E. J. Beyer; and the same was placed in my hands at 8:45 a. m. of said day. Upon the same day I made a levy upon the goods of the defendant that, T had previously levied upon and advertised for sale under and by virtue of writs of fieri facias Nos. 5 and 6, May term, 1886-</p> <p>“Just before selling the goods on the 31st day of March, a. d-1886, I received a notice from IT. M. Hinckley, Esq., attorney for Stephen Smith, plaintiff in said writ of fieri facias, No. 7, May term, 1886, a copy of which is hereto attached, ‘to pay into court the money raised by the sale of personal property of defendant on above writs to await distribution of the court of the -same.’ Acting in accordance with my understanding of my duty as sheriff, and in accordance, as I so understand it, with the-law of this commonwealth, relating to the distribution of the; proceeds of the sale of personal property by sheriffs, I assumed the responsibility of distributing the proceeds of the sale of said personal property under the above-mentioned writs, and made return upon fieri facias, No. 5, May term, 1886,. as.follows, viz.: 'Now March 31, 1886, goods and chattels of the defendant sold as per schedule hereto annexed for the sum of $2,866.75; and after deducting $125.05, costs on this writ and attorney’s commissions, and $111.01, costs and attorney’s-commissions on fi. fa. No. 6, May term, 1886, there remained in my hands the sum of $2,627.66 out of which I paid $1,398.98,, in full of the debt and interest of this writ to Wm. J. Baldy,, attorney for plaintiff; and the balance, $1,228.68, I applied upon fi. fa. No. 6 of May term, 1886, Gideon P. Dietrich v.. E. J. Beyer. So answers James O. Erazier, sheriff.’</p> <p>''The notices served upon me before the sale of the said personal property by H. M. Hinckley, Esq., attorney for Stephen Smith, I did not consider would relieve me from the necessity of assuming the responsibility of distributing the funds raised from the sale of the said personal property in any event; but more particularly did it not change my idea and belief of what was my duty, as it did not allege the judgments of the first execution creditors to be fraudulent or wrong in any manner;, and further saith not.”</p> <p>Upon making the rule absolute Elwell, P. J., filed the following opinion:</p> <p>It appears by the answer of the sheriff, that on the 25th day of March last he had in his hands three executions against E. J. Beyer, in pursuance of which he levied upon the personal property of the defendant. Execution No. 5 was issued upon a judgment confessed by the defendant to P. M. Dietrich in trust for the wife of the defendant; No. 6 was upon a judgment confessed to G. P. Dietrich, and No. 7 upon a judgment in favor of Stephen Smith, upon whose application and affidavit this rule was granted. The execution in favor of Mrs. Beyer was placed in the hands of the sheriff at 2 o’clock p. m. of the 20th day of' March. That of Dietrich was placed in his hands one hour later, and that of Stephen Smith five days afterwards. All were levied on the same property.</p> <p>Before sale, which took place on the 31st day of March following the levy, the attorney for Stephen Smith gave a written notice to the sheriff requiring him to pay the proceeds of the sale into court to await the disposition of the same by the court.</p> <p>On the second day of April, the court being then in session, this rulo was obtained on application as before stated. The return day of the several writs was the 24th day of May, more than seven weeks after the day of sale.</p> <p>In his answer the sheriff states that he sold the property levied upon for the sum of $2,866.15, and that, after deducting costs, he applied to the execution of Mrs. Beyer the sum of $1,398.98, and paid the same to her attorney; and the balance of the money to wit: $1,228.68, he applied on execution of G. P. Dietrich, taking upon himself the responsibility of making distribution of the proceeds of the sale as he believed he had a right to do; the notice given him not specifying any reason why he should have the money before the court, the questions raised by the facts are:</p> <p>First. Whether, under the circumstances, the assumption of the responsibility by the sheriff, and the distribution of the fund as made by him, have placed him beyond the reach of the rule to bring the money before the court; and,</p> <p>Second. If not, whether the case as presented is a proper one for the interference of the court by a rule for that purpose.</p> <p>The 41st section of the act of June 16, 1836, in regard to ■executions, provides that on sale of personal estate the sheriff shall make return of his proceedings to the court according to the command of the writ. The several writs in the hands of the sheriff commanded him to have the moneys before the court on the fourth Monday of May, 1886.</p> <p>“Forms of writs,” said Marshall, C. J., in Turner v. Fendal], 1 Cranch, 136, 2 L. ed. 60, “furnish strong evidence of what was the law when they were devised, and the duty of the officer to whom they are directed.”</p> <p>In McDonald v. Todd, 1 Grant Cas. 18, Gibson, J., said, in reference to payments by the sheriff: “In order to prevent delay and save the expense of cumbrous forms it has been usual, where the right to the money is not disputed, to pay it immediately to the creditor supposed to be entitled to it, and to retain the exe■eu tion. In such a case, however, the payment is private, unofficial, and informal; and when the sheriff has departed from the line prescribed by his writ, he acts on his own responsibility. He discards its authority which consequently gives no further stamp to his act. In regard to acts without the pale of it, he can neither be protected nor prejudiced by it.”</p> <p>The practice of allowing the sheriff to pay over the money directly to the plaintiff is a permissive departure from the command of the writ. The right of the sheriff, therefore, to pay the money to the party, out of court, is not at this day to be questioned; but it by no means follows that the court has lost the-power of compelling its officers to obey the commands of its process. It cannot be doubted that the court has the right, whenever application is made for the purpose and a proper case stated, to compel the sheriff to bring' the money into court. If the court has not this power, executions instead of being the end of the law will, in many cases, be the commencement of a new series of suits and litigation.</p> <p>. The law upon this subject is pretty fully considered by B ogees, J., in Williams’s Appeal, 9 Pa. 261. He says; “Nothing' in the law is surer than that a sheriff who undertakes of his own authority, merely, to distribute money levied under several executions before the return day of the writs, does so at his own risk. . . . The command of his writ is not to pay to the plaintiffs, but to bring the money into court on the return day. I am aware that in practice the sheriff usually assumes the responsibility of disbursing the fund raised by execution, without the intervention of the court; and where there are no conflicting pretensions to it, it is very well. Perhaps it is his duty to do so, and thus avoid the expense and delay incident to a payment into court. But this will not excuse him if he commit a blunder, though ever so unintentional. ... It is the duty of the sheriff to retain the money in his hands, in order to allow parties to apply to Hie court to set aside an execution which may be sued out for fraudulent purposes; and if the sheriff were not bound to retain the money, it might, in many instances, be mischievous.”</p> <p>If the sheriff lends his aid to one party and withholds it from another, he must stand or fall by the eventual rights of the party he preferred. He is not bound to try the question of fraud or decide which of the two creditors should have the preference, but he ought to stand indifferent between them and not lend himself to either. The junior execution creditor is entitled to time until the return day, to contest the right of the senior to the fund, and the sheriff cannot deprive him of it. by preferring another. Where there are several executions the sheriff cannot without peril pay any of the plaintiffs, except upon notice and by consent of the others.</p> <p>The same general view of the law is expressed by Paxson, J.,. in Be Bastían, 90 Pa. él6, in these words: “When parties are not satisfied for the sheriff to make distribution they can always prevent it by proper application to the court in seasonable time. But it comes too late when made long after the return of the writ and after the sheriff has in good faith applied the money to the liens.”</p> <p>In practice, the sheriff is not permitted to pay the money into the hands of the prothonotary without a special order of the court. If in all cases he might do so, the parties would be delayed and unnecessary expenses would be incurred. The writ does not command him to pay the money to the plaintiff nor to pay it into court, but to have it before the court. After the return day he may safely pay the plaintiff, according to the-priority of the execution, unless he has notice before that time that the right of the prior execution creditor to the fund will be contested. Marble Co. v. Burke, 5 W. N. C. 12d.</p> <p>The several cases cited from the Weekly Notes, decided by the court in Philadelphia, refusing permission to the sheriff to pay money into court, do not go the length of holding that this may not be done in a proper ease; — the court reserving to itself to decide whether the circumstances presented in any case are such as seem to require that distribution should be made by it instead of the sheriff. In order to distribute, the court must have possession of the fund to be distributed; hence, the necessity of the sheriff’s retaining the money until the junior creditor can have an opportunity of presenting the case to the court.</p> <p>It is contended that as the sheriff believed he had the right to take the responsibility of paying out the money, it will be a hardship upon him if he is now required to bring the amount into court.</p> <p>To this it is a sufficient answer to say, in the language of- the court in Stebbins v. Walker, Id N. J. L. 90, 25 Am. Dec. 503: “If the conduct of the sheriff is mala fi&es, or if with his eyes open, after notice, he pays over the money, the court will not stop to inquire whether he can get it back.”</p> <p>In the ease in hand the notice given was in effect not to pay to the senior execution creditors. The writ commanded the sheriff to have the money before the court. The notice requested him not to make distribution; but he at once, on the very day of the sale and weeks before he was required to make return, and 'when he knew that the court would be in session within the next forty-eight hours, made what Judge Gibson calls a private unofficial application of the proceeds of the sale. In so doing he lent his aid to one party, to the prejudice of the other. The judgment against the defendant in favor of his wife may have been for a debt honestly due. Still between her and her husband’s execution creditors the burden of proof would probably rest on her to show the bona fides of the transaction. However that may be, the sheriff should not so conduct the proceedings as to compel a creditor to resort to an action at law, without giving an opportunity to make an application to the court.</p> <p>Whether the sheriff intended to lend his aid to one party, to the exclusion of the other or not, his acts had that effect. His assumption of responsibility cannot shield him in doing an irregular act, out of time, and to the prejudice of the rights of a creditor of the defendant. His hasty act in making the appropriation to the earlier writs in the face of notice not to do so seems to indicate an intention to aid the first execution creditors and prevent the junior execution creditor from invoking the power of the court to compel, in a summary manner, compliance with the mandate of the writ To hold otherwise than as above indicated would be to stultify ourselves, and to yield to our ministerial officers control over the process of court to an extent not contemplated by any statute nor sanctioned by any established practice.</p> <p>The amount of the execution of Stephen Smith is about $900. Payment into court of a sum equal to that debt and costs is all that need be required. As at present informed, an order to pay into court that sum will protect the rights of the applicant for this rule.</p> <p>And now July 15, 1886, rule made absolute to the amount of $900; and it is ordered that James O. Frazier, sheriff, pay into the office of the prothonotary within twenty days the sum of $900, to abide the order of the court.</p> <p>The assignments of error specified the action of the court in ■making the rule absolute and subsequently issuing an attachment to enforce the decree.</p> <p>— Distribution by the sheriff is at his own risk. He takes the responsibility of applying the money as the law would apply it. If he does not so apply it, he is liable upon his official bond. Be Bastían, 90 Pa. 472.</p> <p>But an attachment for contempt is not included in such risk. It is only his official bond that is- in peril. Franklin Twp. v. Osier, 91 Pa. 162.</p> <p>It may be objected as a distinguishing feature of this ease that the sheriff had notice to pay the money in. The character of notice in this case falls short of every requirement.</p> <p>In Mathiews v. Webster, 7 W. N. C. 81, it was said: “It is not the usual practice to order into court a fund arising from the sale of personal property; but where the sheriff is notified of facts which render it unsafe for him to take the responsibility of distribution upon himself, and he asks to pay the money into court, it is usual to make such an order.”</p> <p>In Kirk v. Ruekholdt, 7 W. N. C. 81, it was said that the rule is for the sheriff to assume the responsibility of distribution. When a state of facts is shown to exist, by proper proofs, which Tenders it unsafe for him to do so the court will order the money into court, not otherwise.</p> <p>The notice was no act of the court from which the writs proceeded. Disobedience to it is not one of the cases which the court could punish with contempt under the act of June 16, 1836. The court proceeds by motions, rules, and orders, and the practice in this case was for the attorney to obtain a rule. He could have done so by application, to the court in chambers. Tt would not issue, of course, for the court would only interfere upon special grounds shown. Dillon v. Conover, 2 W. N. C. 126; Bamum’s Universal Exposition Co. v. O’Brien, 7 W. N. C. 82.</p> <p>The notice to the sheriff to malee him responsible for paying the money over before the return day of his writ must deny the good faith or validity of the judgment. The sheriff cannot go beyond the regularity and priority of his writs. Marble Co. v. Burlce, 5 W. N. C. 125.</p> <p>In every instance a wholesome practice dictates that a rule be granted by the court. Mitchell, Motions & Rules, p. 50.</p> <p>The return of the sheriff was conclusive upon him so as to make him liable for mispayment of the proceeds, and the creditor must proceed upon the bond; and in this case it was conclusive upon the court and upon all the execution creditors. McDonald v. Todd, 1 Grant Cas. 18; Re Bastían, 90 Pa. 472; Franklin Twp. v. Osier, 91 Pa. 162.</p> <p>The sheriff could not contradict it or avoid its legal effect. Paxton v. Steckel, 2 Pa. St. 93; Mentz v. Hamman, 5 Whart. 150, 34 Am. Dec. 546.</p> <p>It was not misconduct to distribute the fund before the return day of the writ for which the court is empowered to punish for contempt under the act of June 16, 1836, if there was no fraud and no rule issued by the court upon him prior to such distribution.</p> <p>No misconduct of the officer was alleged or shown in the execution of his writs, and the court had no power to punish for a contempt. Purdon’s Digest, p. 324.</p> <p>— In practice, where there are no conflicting claims or no other execution creditors, the sheriff generally takes the responsibility of distributing the fund before the return day of the writ; but he always does so at his own risk; and he cannot, by making a distribution of his own, take from the court the control of its own process. So long as the court has a right to inquire into the regularity and bona tides of its judgments and determine priorities, it must have a right to control the money raised on its processes.</p> <p>There are some common pleas cases, such as Kirk v. Ruckholdt, 7 W. N. C. 81, where the court, in the exercise of its discretion, has refused to order the money into court, the facts not being such as to warrant any interference; but even those cases recognize the right of the court to order the money into court. Until the return day of the writ, the court has full control over the proceeds thereof. Marble Co. v. Burke, 5 W. N. C. 125.</p> <p>Nothing in the law is surer than that a sheriff who undertakes of his own authority, merely, to distribute money levied under several executions before the return day of the writ does so at his own risk. Wortman v. Conyngham, Pet. O. C. 243, Fed. Cas. No. 18,056.</p> <p>It is the duty of the sheriff to retain the money in his hands, in order to allow parties to apply to the court to set aside an execution, which may be sued out for fraudulent purposes.; and if the sheriff were not bound to retain the money, it might, in many instances, be mischievous. Warmoll v. Young, 5 Bam. & 0." 660.</p> <p>Where a sheriff has in his hands at the same time several executions against the same defendant, he cannot, without peril, pay to any of the plaintiffs before the return day, and perhaps some days after, except upon notice to and with the assent of the others. Williams’s Appeal, 9 Pa. 26“7.</p> <p>The right of the sheriff to pay the money to the party, out of court, is not at this day to be questioned; but it by no means follows that the court has lost the power of compelling its officers to obey the command of its process. The court has the right, whenever application is made for that purpose, and a proper case stated, to compel the sheriff to bring the money into court. Stebbins v. Walker, 14 N. J. L. 90, 25 Am. Dec. 500.</p> <p>When parties are not satisfied for the sheriff to make distribution, they can always prevent it by a proper application to the. court in seasonable time. Be Bastían, 90 Pa. 476.</p> <p>A sheriff is not liable to an attachment as for a contempt, in not paying into court the money made upon an execution levied upon real estate, where he has, in good faith, after the return ■day, and without notice of any opposing claim, applied the money to the liens. Franklin Twp. v. Osier, 91 Pa. 162.,</p> <p>These are the cases the gentlemen rely upon to decide that the court had no power to order into court money raised by the sheriff upon executions, where the application for such order was made two days after the sale, and more than six weeks before the return day of the writ, and where notice that the court would be asked to interfere was given to the sheriff before the •sale. Neither the cases cited nor any which the gentlemen could cite decided any such thing.</p> <p>Our position, and the one sustained by all the authorities, is -that until the return day of the writ, the court has full power ■on the presentation of a proper case to direct the distribution «of the proceeds of a sheriff’s sale thereon; but that after the return day, and where tire sheriff has had no previous notice of a contest, he may pay out the money, taking the risk of a wrong ■payment; but in such ease the court has no power to control by attachment. It is in such case only that the court says that •contempt of court is not one of the risks that the sheriff incurs.</p>

Tbe facts as they appeared from tbe case stated, were as follows : Tbe defendant, the Philadelphia & Erie Railroad Company, was duly incorporated, by the corporate name and title of the Sunbury & Erie Railroad Company, by and in pursuance of an act of assembly entitled “An Act to Incorporate the Sunbury & Erie, and the Pittsburgh & Susquehanna Railroad Companies.” approved April 3, 1837, and the several supplements thereto.

This was an action by Philip Osborn against David E. Day, to foreclose a mortgage dated December 20, 1878, and in tbe penal sum of $3,000, conditioned for tbe payment of $300 annually by the defendant to tbe plaintiff during tbe latter’s life, and tbe sum of $50 per annum to Cynthia Osborn, tbe plaintiff’s wife, annualLy, during her life, and for certain personal services, etc. These payments and services were tbe consideration for tbe sale of tbe plaintiff’s personal…

The facts are stated in the following opinion delivered by Bucher, P. J., upon entering the decree in the court below: On July 3, 1885, Samuel H. Orwig, Esq., attorney for certain heirs of John L. Lewis, deceased, filed five exceptions to the partition proceedings. These exceptions were not verified by affidavit.

Tbis was an appeal from tbe order of removal of Mary Ellen Thompson, a pauper, from the poor district of Curwensville borough to tbe poor district of Knox township. Tbe facts as found by Krebs, P. J., were stated in bis opinion, which was as follows: Counsel for plaintiff and defendant have admitted the following facts, namely: First. That tbe pauper, Mary Ellen Thompson, was born on the 13th of October, 1861, and arrived at her majority on the 13th of October, 1882. Second.

This was an action of assumpsit by J. A. Caldwell against Robert Mitchell and Thomas H. Eorcey, executors of James T. Leonard, deceased, upon the… Held: the individual note of the makers. Hayes v. Brubaker, 65 Ind. 27. The addition “Vestryman Grace Church” to each of the names attached to a note does not malm it anything ]mt the note of the individuals signing it, if it does not purport to bind the corporation. Tilden v. Barnard, 43 Mich. 376, 38 Am. Pep. 197, 5 N. W. 420.

<p>Error to the Common Pleas of Lebanon County to review a judgment on a verdict for defendant in an action of assumpsit.</p> <p>Tbis action • was brought by the executor of Mary Behney .against John Fehler, to recover insurance moneys received by him under a policy of insurance on the life of plaintiffs .testator. Defendant pleaded non assumpsit, payment, and set-off, with leave, etc.</p> <p>The facts appear from the charge of the court to the jury, by McPheRsoN, A. L. J.</p> <p>Plaintiff, inter alia, presented the following points:</p> <p>No question of good faith can arise in this case. The taking •out of the policies on the life of Mary-Behney by John Fehler, who was a stranger to Mary and without any insurable interest in her life, and the holding of the policies and the payment of 'the premiums by Fehler to keep them up, made him a speculator in, and the transaction a speculation on, the duration of the life ■of Mary Behney, and therefore without legal effect; and the verdict of the jury must be in favor of the plaintiff for the amount received by Fehler on the policies, less proper payments and ad■vaneements on the security thereof.</p> <p>Ans. That is refused. It asks us to say to you, as a matter •of law, that this was a speculative transaction, which we decline to dp.</p> <p>3. The claim of Fehler that he held the policies on a contract ■with Mary Behney to support her during life and bury her after ■death is against the policy of the law, as, if such was the case, the transaction was a speculation, or gambling, upon the dura■tion of the life of the insured, in which he had no interest.</p> <p>Ans. As a question of law this is refused. In some cases it might be a speculation; in others a praiseworthy act. As a question of law it is refused.</p> <p>After the defendant’s counsel had made his concluding argu■ment to the jury, but before plaintiff’s counsel had begun his ar;gument, the plaintiff’s counsel presented the following additional point:</p> <p>4. The daughter of Mary Behney, Mina Fehler, the wife of 'Fehler’s son, who was living in the house with Fehler at the time, having, as she testified, done and had most of the nursing .and care of her mother herself, was not entitled to anything for -this without a special contract and makes no claim therefor; and ■ John Fehler could acquire no claim for such nursing and care; .and there being no evidence that he made any claim for this or ber board prior to tbe insurance, there was no debt due him giving him an insurable interest in her life.</p> <p>The court declined to receive this point, because submitted too late under tbe rules of the court. After the jury had consulted on their verdict, but before the verdict was taken, counsel for plaintiff askod the court for an exception to its. rulings, excluding the additional point, and the exception was noted.</p> <p>The court charged the jury as follows:</p> <p>This ease presents, perhaps, more than one question of fact for you to determine. Two policies of insurance were taken out upon the life of Mary Behney in favor of John Fehler, the defendant in this ease, the two policies amounting to $3,000 ; and after she died he received the money upon these policies, something over $2,900,1 believe.</p> <p>The first question is: Did John Fehler have an insurable interest in the life óf Mary Behney? Did he have a right, to put the question in a little different form, to insure her life for his benefit, in his favor, or to cause an insurance to be taken upon her life in his .favor ? For the evidence tends to show, if believed by the jury, that it was at her request that these policies were taken out, and without John Fehler’s solicitation, or at his instance. The request seems to have come from her, and he does not seem to have been active in having it done.</p> <p>Now, was there any relationship between these two people? Her daughter was married to his son, and was living with her husband in defendant’s house, and that was the only connection between them. And there Mary Behney went after the death of her husband and tbe breaking up of her home. You will probably find from the evidence, what the evidence will justify you in finding1, that she went there to live, and that she went there to make it her home for the rest of her life. She did not stay there all her life, for reasons which appeared in the evidence, but left after having been there for several years, and went to another daughter’s, where she remained for some years, being taken back to John Fehler’s to be buried from his house, and upon his place.</p> <p>There is nothing at all in the connection or relationship between these two persons which, of itself, gave John Fehler an insurable interest in her life. So, if there was nothing els© in the case except that, we would instruct you to find a verdict for the plaintiff. But we think you will find the fact to be, as we shall submit it, that John Eehler had an insurable interest in her life to some extent at least; and the evidence which the defendant, produced here, and which we submit to you, tends to show that Eehler became or was about to become her creditor after this insurance was taken out. He produced evidence to show that she had been at his.house for about a year before the policies were taken out at all, and you will recollect the evidence bearing upon the reason for taking them out, her desire, as testified to, to repay him for what had already been expended, and to secure him for what afterwards might be expended for her care and support. In other words, John Eehler — if you believe that side of the evidence — John Eehler assumed the position of creditor towards this woman, not only for what he had done for her, which of course he was not bound to do, since he was not related to her, and did not owe her any duty of support and maintenance, but also for what he agreed to do. If you so. find — if that is the case • — that he was her creditor for what he had done in the past, and if he promised to continue these duties in the future, he had an insurable interest in her life — he was then like an ordinary creditor to whom Mrs. Behney, we may say, owed a promissory note; and he wrould certainly possess an insurable interest in her life. So we say that John Eehler, if you find the facts to be as we have submitted them to you, as we have stated, had a right to insure Mrs. Behnev’s life' — he was her creditor.</p> <p>The next question is: To what extent had he a right to insure her life ? To that there can be only one answer, and that is that a creditor’s interest in the life of his debtor is the extent of his debt, and also, of course, the' amount which he is obliged to pay to protect that debt; that is, the amount he is obliged to pay to keep up the insurance which does protect that debt. This is justice to the creditor. It pays him for his claim, with interest upon it, of course, the sum of money which he has expended upon the debtor; and he would be entitled to also claim interest for the money which was paid to support the policy. The remainder of it belongs, or ought to belong, to the estate of the person upon whose life the policy was taken out; and that is the case here. What is John Fehler’s interest in these two policies, therefore ? is the question. It is a question of fact for you to determine under all the evidence in the case; and it depends very largely, as you will see, upon the value which ought to be paid bim for tbe care and attention and services given to Mrs. Behney by John Behler, or at John Fehler’s bonse (tbis care and service and attendance wbicb be procured for ber) wbicb be furnished to ber. That includes various items, as to wbicb there has been some testimony given, board and clothing and other matters of that sort; and you will remember tbe testimony about that, and remember the testimony also with regard to tbe value of these services; and you will further know, as practical men, what weight to give to that testimony, whether it is too high or too low, or whether it can be relied upon.</p> <p>There is some testimony with regard to certain sums of money that have been expended. Of course as to these there can be no question, if you believe tbe testimony of tbe defendant’s witnesses. Then of course there is testimony as to tbe sum of money that was paid for keeping up these policies. As to that, of course, there can be no question. It is admitted, and that will in any event be allowed, with interest upon it. Interest for half tbe time during which the payments were made, I believe is the rule or practice that seems to have been followed here; and those items would be allowed as credits.</p> <p>But the serious question, the question that involves the important matter in this case, is the question of the value of the care and attention which she received at John Fehler’s hands during the time she was at his house; and upon that you will have to fix a value. You remember when she died and when she left his house; the length of time she was there, and the testimony which will help you to fix the amount of money that ought to be paid for her keeping there; and then it becomes for you a mere matter of calculation to discover whether he has received more money than he ought to have received. After having determined what these items are that should be allowed in accordance with the charge of the court, or the amount of money that he should be allowed for the care and services 1 have spoken of, it is a mere matter of calculation as to whether he got more money than he ought to have been paid. If he has more in. his hands —-more than is sufficient to repay these sums under the instructions I have given you, it belongs to the estate of Mrs. Behney. Tf, on the contrary, he has not received more than enough to pay himself, your verdict ought to be for the defendant.</p> <p>The two questions are: Was he, when the policies were taken out, a creditor of hers, or did he agree to become a creditor of bers iii the way I have mentioned ? Did he agree to keep her and support her and take eare of her as long as she lived ? If yon find that to be so, if he was a creditor, then you pass to the next question. If you find that he was no creditor of hers, then he had no insurable interest in her life, and the plaintiff is entitled to recover the full amount which he [Fehler] received, less the amount which he paid for keeping up the policies, for that would be the only credit that he would be entitled to in that case.</p> <p>The weight of the evidence seems to be in his [Fehler’s] favor, of his being a creditor of hers to a certain extent at least; and I assume that the wpight of the evidence will govern the jury, and I assume that they will pass to the important branch of the case, namely: as to how much he was a creditor of hers at the time,of her death; because, after all, that is really the important matter in the case.</p> <p>Verdict and judgment were for defendant.</p> <p>The assignments of error specified the action of the court iu refusing to affirm plaintiff’s first and third points and in refusing to receive and instruct the jury upon plaintiff’s additional point.</p>

On April 25, 1887, it was agreed between Daniel M. Sharp eb al., citizens and taxpayers of Lebanon county, plaintiffs, and Emanuel Wike eb al., county commissioners of Lebanon county for a term of three years from January, 1885, defendants, that the following case be stated for the opinion of the court in the nature of a special verdict: That the said county of Lebanon is seised and possessed of a certain lot or piece of ground situate in the city of Lebanon, in said county,…

gence of defendants. It appears from the statement of the plaintiff in error that Robert Marsden, the deceased, was killed in a mine belonging ■to the Webster Coal Company, Limited, on October 23, 1882, while in the employ of that company.

<p>Error to the Common Pleas of Cumberland County to review a judgment on a verdict for plaintiffs in an action of assumpsit.</p> <p>This action was brought by Kossuth Marx & Co. against Philip Liszman as guarantor and surety on the following note:</p> <p>Carlisle, Pa., Feb. 25, 1884.</p> <p>Twelve months after date I promise to pay to tire order of Kossuth Marx & Go., at the Carlisle Deposit Bank, four hundred fifty and 50/100 dollars without defalcation, for value received.</p> <p>(Credit the drawer.) George H. Liszman.</p> <p>With interest.</p> <p>Indorsed on the back,</p> <p>Philip Liszman.</p> <p>Kossuth Marx & Go.</p> <p>The following facts appeared on the trial in the court below before Sadler, P. J.:</p> <p>Plaintiffs were wholesale and retail dealers in New Tork city. George H. Liszman, son of the defendant, was a retail jeweler in Carlisle, and bought of plaintiffs a large bill of goods, for which, fearing his failure in business, they subsequently took, in satisfaction of their bill against him, a return of the unsold goods and the note set out above.</p> <p>Subsequently tbe plaintiffs received tbe following letter from Philip Liszman;</p> <p>Carlisle, Pa., Feb. 1, 1885.</p> <p>Kossuth Marx & Co.</p> <p>Gentlemen: I would like very much to renew my note due this month, as surety of my son George. The times are so hard that it is impossible to raise money; and hoping and believing that the coming season will brighten matters up, I would like to renew the note for a year, paying interest thereon at the rate of 6 per cent. I have had to pay a great deal for George, but I want to give him another chance to redeem himself, and put him on a solid basis. Hoping for an early reply, I am</p> <p>Very Truly Tours,</p> <p>Philip Liszman.</p> <p>At the trial plaintiffs’ counsel offered “the note of George H. Liszman, dated Carlisle, Pa., February 25, 1884, for the payment of $450, twelve months after date, to the order of Kossuth Marx & Co. at the Carlisle Deposit Bank, and signed at the bottom by George H. Liszman, and on the back by Philip Liszman, to be followed by evidence that the signing by Philip Liszman on the back of the note was with the intention and with the understanding that he was the surety of George H. Liszman for the payment of this note to the payee.”</p> <p>Objected to, because on the production of the note it appears that it is not the note of George Liszman and Philip Liszman. It is the note of George Liszman to the order of Kossuth Marx & Co. The name of Philip Liszman is written on the back of it above that of Kossuth Marx & Co. It is therefore not his note, nor is he in any way liable for it. The understanding of the parties cannot be shown outside of that paper; the contract of suretyship must rise on the paper on which they bring suit, and which is now offered.</p> <p>Plaintiffs’ counsel: We add to our offer, in further explanation or qualification of it, that the evidence, which we propose to show, that Philip Liszman signed the note as surety for George H. Liszman, is in writing, which said writing is offered in evidence.</p> <p>Defendant’s counsel: The paper offered in evidence with the note does not better the offer. It does not alter the character of the note nor create any liability which does not appear upon the face of the papei* on'which they base their suit. It is irrelevant and immaterial. There is nothing in the offer to charge the defendant or make him liable.</p> <p>Plaintiffs’ counsel: We also propose to show that the note was given for a debt owing by George H. Liszman. That the settlement was made through the father, Philip Liszman, ana the compromise made through him, and that it was the understanding and agreement before the note was signed that' he was to sign it as surety for George H. Liszman, his son.</p> <p>Objected to, that it is not sufficient to take it out of the statute of frauds, nor to make this note a legal obligation on the part of the defendant.</p> <p>By the Court: It will be for the jury to say whether the letter of Liszman of the Ith of February, 1885, refers to the note signed by George Liszman and indorsed by himself, dated February 25, 1884. The offer of the plaintiffs is admitted. (Note and letter read to the jury.) (First assignment of error.)</p> <p>The court charged the jury, inter alia, as follows:</p> <p>On the note, as it appears, there would be no legal liability on the part of the defendant; but we have admitted a letter written by Philip Liszman to the former, and written in February, 1885, which (if you find it was written in reference to the note in suit) would give such acknowledgment of the circumstances under which he signed the note as would justify you in finding him liable on the note. (Second assignment of error.)</p> <p>Verdict for plaintiff for $450.50, with interest. Judgment thereon.</p> <p>— The cases of Jack v. Morrison, 48 Pa. 113; Schafer v. Farmers’ & M. Bank, 59 Pa. 144, 98 Am. Dec. 323, and Murray v. McKee, 60 Pa. 35, established beyond cavil that so far as Philip Liszman is concerned, on the note itself, there is absolutely no liability to pay. Nor does the letter of February 1 identify the note as to date or amount, nor does it contain a promise to pay, as in Eilbert v. Finkbeiner, 68 Pa. 243, 8 Am. Pep. 116.</p> <p>The letter of Philip Liszman cannot be referred to the note in suit, without the aid of the oral testimony of the agent, which is incompetent Moyer’s Appeal, 105 Pa. 436.</p> <p>—Cited Eilbert v. EinkbeMer, 68 Pa. 243, 8 Am. Rep. 176.</p>