Volume 60 — Pennsylvania State Reports

<p>Error to the Court of Common Pleas of Butler county: No. 130, of October and November Term'1868.</p> <p>This was a proceeding commenced December 5th 1864, by the petition of Jacob Bricker and nine other qualified electors of Winfield township, Butler county, to the Court of Common Pleas, setting forth that money had been “loaned by citizens of the township or a committee acting for the people of the township with the condition or contract that the same would be refunded to the citizens loaning the monqy — yet four of the school directors, to wit, Henry Keasy, John Cypher and James McLafferty, have neglected and refused to assess a tax to refund the money,” &c., and praying the court to award a mandamus to compel the school directors to levy a tax for that purpose.</p> <p>On the same day the court granted a rule on the directors to show cause why a mandamus to them should not be awarded, under two Acts of Assembly relating to the payment of bounties to volunteers in Butler county; one passed April 14th and the other, August 22d 1864, a supplement to the first: Pamph. L. 420, 980. The 1st section of the Act of April authorized the school directors to collect a tax to pay bounties to volunteers: section 3d provided, that where bounties had already been raised or might thereafter be raised and paid to volunteers, “ by money subscribed, loaned, advanced or paid by or through individuals or committees acting for citizens and with the understanding or condition that the same should be repaid by taxation,” the directors were required to repay such sums out of said moneys so collected.</p> <p>The 1st section of the Act of August provided, that if any board of school directors “shall neglect or refuse to levy and collect a tax, under the provisions of the 1st section of the act to which this is a supplement, and a majority of the qualified electors of any of the said townships or boroughs shall have petitioned the said directors in favor of said taxation, then the Court of Common Pleas of said county shall, on petition of any ten of said electors, and upon due proof of all the facts, have power to proceed by mandamus, to compel the said board of directors to discharge the duties imposed upon them by this act, and the act to which this is supplementary.”</p> <p>Section 2d provided “that if any of said boards of school directors, or a majority of them, shall neglect or refuse to levy and collect a tax under the provisions of the 3d section of said act, then, on due proof of all the facts in the case, the ,court aforesaid shall have power to proceed, by mandamus, to compel the said defaulting boards of directors to discharge the duties so imposed upon them by said act.”</p> <p>After some further proceedings depositions were taken.</p> <p>William Stewart testified : The second meeting, February 21st 1865, at which he presided, was the largest they had had; some of the citizens opposed being taxed; that raised a discussion as to how the township should be relieved from the draft. The proposition then was, that if one-half should he raised by subscription, the balance would be raised by taxation; it was put to vote by yeas and nays; there was no opposition; there were about one hundred people there.</p> <p>Robert Galbraith testified, that at the meeting it was agreed that every one there should be subject to a poll tax of $25, the balance to be raised by a tax on property; it was the understanding of the committee that legislation to save them from losses should be had.</p> <p>James Simmons testified, that it was understood at the meeting that $2500 should be raised by subscription, and the remainder by taxation; many had been opposing the raising the fund by taxation; when the proposition about the $2500 was agreed to, their opposition was withdrawn. A number of other witnesses testified to the same facts; some testified that the whole amount to be raised was stated to be $4000. The witnesses, except Stewart, stated the number at the meeting variously from fifty to sixty-five persons. There was also in evidence an agreement signed by William Stewart, and twenty-two others, that they would be responsible to the executive committee for whatever money might be borrowed to complete the bounty fund for the township.</p> <p>On the 14th of June 1866 an “ amended bill” was filed. This bill set forth the borrowing of the money by a committee appointed by citizens of the township for the purpose of paying bounties to volunteers under the call of 1864 for 700,000 men; that the committee gave their individual obligations to persons loaning money for that purpose, and advanced their owh money on condition that both the advanced and borrowed money should be repaid when the legislature should authorize the directors to levy a tax for the purpose; that such authority was obtained, and volunteers paid by the committee with the understanding that they should be repaid when the funds should be raised by taxation ; that at a meeting of citizens, committees were appointed to solicit subscriptions to pay in advance of taxation “in anticipation of the same being refunded to those so advancing, loaning and subscribing,” when the necessary legislation should be obtained. The bill then sets out the appointment of the committees, and that $1724 were subscribed by different persons, naming them and the sum subscribed by each; $259.50 of which had been refunded to those of the subscribers who had afterwards entered the military service of the United States; that in addition to the subscriptions, the committee had borrowed from a number of persons, naming them, $1482; that the committee expended about the business of procuring volunteers $177.61, and $2665 paid for bounties to volunteers, naming them; to which was to be added $200 interest, making the whole $3042.61, of which $1464.50 were raised by subscription, leaving $1578.11 to be raised by taxation, “ or the sum of $3042.61 for the purpose of paying off borrowed money and interest thereon, money expended in procuring volunteers and in refunding to subscribers aforesaid the several sums advanced by them or loaned to said township on condition that the same should be refunded by taxation.”</p> <p>The petition averred that the directors, notwithstanding they had “ been repeatedly requested by the said creditors and other citizens of the district” to levy a tax to pay the above amounts, had refused to do so, and prayed for a mandamus to the directors to compel them to levy and collect a tax for that purpose. The court directed an alternative mandamus to issue.</p> <p>The return to this mandamus set forth defects in the original petition, and averred that they could not be supplied by amendment, but were fatal. It set forth also a number of defects in the amended petition.</p> <p>It further alleged that at the meeting of. the citizens it was understood that it would be necessary to raise $4000 for bounties, of which $2500 was to be raised by subscriptions which were to be absolute gifts, and the remaining $1500 were to be raised by taxation; that the directors offered to raise and would have raised by taxation, money to repay that borrowed for bounties, but the demand by the committee included improper claims, and they would not submit to the board a statement of the claims; that the claim of the committee for expenses is.,a subject to be passed upon by the township auditors, and not in a proceeding by mandamus; that the claim being disputed, a mandamus would not lie until it was reduced to judgment. The return further admitted that there had been some money applied to the payment of bounties which the district ought to pay, and that the directors would not interpose the want of authority if the contract were proved by reasonable evidence; that they have always been willing and ready to hear such evidence and provide for claims which should seem equitable, but that no creditor has offered to make such proof.</p> <p>A motion was afterwards made to dismiss the bills which was refused; a plea was filed April 20th 1868 and same day a replication was filed.</p> <p>On the 25th of June 1868 the court decreed that “judgment be entered for the plaintiffs, and that the respondents, the school directors of Winfield township, are commanded at their next regular meeting for the transaction of business, to assess and collect the sum of $1600 of bounty tax according to law; and to issue their proper warrants to the’ collectors of county taxes, &c., for the collection thereof, and they are hereby required to repay the same, to wit, the sum of $1200, and the interest due thereon and their expenses thereon, not exceeding $177, in accordance with the opinion filed in this ease, to the said committee, Robert Hesselgesser, William Keener and Robert Galbraith, for the use of the creditors of the township for money advanced, and for money advanced by themselves, and the said respondents and directors to pay the costs of this proceeding, except,” &c.</p> <p>The respondents removed the case to the Supreme Court by writ of error; the various rulings of the court during the proceeding, and the final decree awarding a peremptory mandamus, were assigned for error.</p>

<p>1. A tenant in common being in possession, by will which was read in the presence of his co-tenant and witnessed by him, devised the whole tract. This was an open and unequivocal claim of an adverse title and amounted to an ouster of his co-tenant.</p> <p>2. A father settled on patented land supposing it to be unappropriated and sold the land to a son by parol, the consideration being that the son should support the father and his wife, should take out a warrant, &c., for the land, pay the purchase-money and take out a patent. The son took possession of the land, made valuable improvements and performed his agreement. The title was perfected against the original patentee by the Statute of Limitations in favor of the father and his heirs. Held, that the father and his heirs were estopped.</p> <p>3. When one encourages another to settle on land and expend money and labor on it, he cannot afterwards take the land from the improver, although he has an older and better title, and is ignorant of his rights.</p>

<p>A testator gave to tliree sons a tract of land to be divided among them in portions designated in the will, adding “further I devise, &c., to my said sons each and equal privilege for ever of the coal-bank now opened and the ground on the ridge adjacent, so far as may be necessary for digging and taking coal.” It seems that the privilege extended to every part of the tract containing coal which might be mined through the opening. Per Thompson,</p> <p>2. The devise as to the coal was a mere privilege and easement, an incorporeal hereditament and ejectment is not the remedy for an interruption of the right.</p>

<p>1. The entry of the claim of a mechanic is parcel of his legal remedy, the whole of which remedy, including the right to issue execution, must he considered in order to determine whether it is the proper remedy in any given</p> <p>2. Corporations (other than municipal which are purely public) are divided into public, — agencies of the public directly affecting it, and private, affecting the public indirectly by adding to its prosperity in developing its natural resources, &c.</p> <p>3. Of public corporations are those for building bridges, turnpikes, railroads and the like.</p> <p>4. The results to be produced to the public by public corporations cannot be disturbed by the seizure by creditors of any part of the property essential to their active operations.</p> <p>5. Debts against such corporations must! be recovered by sequestration, allowing them to progress with their undertaking to accommodate the public.</p> <p>6. A corporation for introducing water into a town for the accommodation of the inhabitants is a public corporation, and its buildings, &c., necessary for carrying on its operations are not subject to a mechanic’s lien.</p>

<p>1. Land was appropriated by legal proceedings and a lateral railroad eonstracted on it. Held, that the owner of the road could not encroach on the adjoining land on the pretext that it was necessary to widen the road-bed.</p> <p>2. If the ground appropriated by law is not sufficient for the necessities of the road; additional ground must be acquired by proceedings according to law.</p>

<p>1. Lyday obtained a loan from Murray on condition that McKee would endorse liis note as surety. Lyday made his note to Murray's order which was endorsed by McKee with the understanding that he was to be surety to Murray. Murray afterwards endorsed the note above and below McKee's name. The note being unpaid on the last day of grace, McKee endorsed on it a waiver of protest. Held, that under the Act of 1855 (Frauds) McKee was not liable.</p> <p>2. Jack v. Morrison, 12 Wright 113, Schafer v. Farmers’ and Mechanics’ Bank, 9 P. F. Smith 144, affirmed.</p>

<p>1. A testator directed Ms executors to purchase a lot on which he held a mortgage if necessary to secure the debt and in their discretion to sell it, pay part of the proceeds to certain legatees, invest the remainder, and pay the interest to a legatee for life and after her death to her children “ perpetually.” Administrators d. b. n. e. t. a. could not execute the power to sell.</p> <p>2. Administrators c. t. a. may execute a power to sell to bring land into a course of administration, but not to carry out a collateral purpose, e. g. to turn it into money for convenience of partition.</p> <p>3. The grantee of a tenant in tail of all his estate takes a base fee liable to be defeated on his death by the entry of the issue.</p> <p>4. Though the tenant in tail part with the land for his life by a deed of bargain and sale or the sheriff sell it on an execution, still he continues seised of an estate of inheritance.</p> <p>5. Ross v. Barclay, 6 Harris 183, remarked on.</p>

<p>1. The warrant of a collector of taxes is not a lien on property before seizure.</p> <p>2. After taxes had been assessed the personal property of the tax-payer was sold by the sheriff; before its removal from the premises the collector seized and sold it for the taxes. Held, that he was liable to the purchasers in trespass.</p> <p>3. The purchasers were not occupiers of. the real estate and the property therefore was not within the Act of April 15th 1834, § 46 (Taxes).</p>

<p>1. Two persons entered into partnership for mining, the lease being to one, to whom all the stock, fixtures, capital and property belonged exclusively, both being in possession. A joint action of trespass by both for injury to the mines is maintainable.</p> <p>2. In trespass for breaking a dam, by which the workmen were driven from the mines by the water: Evidence of the amount each miner would produce and of the expense of keeping mules whilst the mines could not be worked is admissible on the question of damages.</p> <p>3. Where there is. evidence that the trespass is malicious, a court should not be too stringent in excluding evidence as to damage, but should wait and instruct the jury as to the true rule, to be given on the whole evidence.</p> <p>4. McKnight v. R-ateliif, 8 Wright 156, explained.</p>

This was a bill in equity, filed in the Supreme Court on the 4th of June 1869, by William C. Patterson and others against Thomas A.… Held: and retain one for inspection of any resident in the district, and the assessor shall on the personal application of a voter add his name and assess a tax on him, noting his residence, occupation, &c., as in other cases, &c. Sect. 3. “After the assessments have been completed, on the 10th day preceding the second Tuesday in October,…

<p>Error to the Court of Oyer and Terminer of Wayne county: No. 245, to January Term 1869.</p> <p>Erastus B. Hollister and J. K. Harris were indicted on the 4th of September 1867 in two counts. The first count charged that the defendants “ on the fourteenth day of June 1867, about the hour of one of the night of the same day, with force and arms * * the store-house of Stanton & McMullen * * feloniously and burglariously did break and enter, with intent the goods,” &c., &e., * * in said store-house * * then and there feloniously and burglariously to steal, * * and certain goods, &c., in said store-house * * feloniously and burglariously did steal, &c.</p> <p>The second charged that Hollister, “ before the said burglary and larceny were committed,” * * did feloniously and maliciously incite, move, procure, aid, counsel, hire and command the said J. K. Harris the said burglary and larceny, in manner and form aforesaid, to do and commit,” &c. * * Hollister moved to quash the indictment, because “ the breaking and entering a ‘ store-house,’ &c., as charged in the indictment, is not felonious burglary in law.” The motion was overruled, and Hollister was found guilty May 9th 1868, on the second count; on the 12th of September 1868 the court granted a new trial. Hollister was again tried December 10th 1868, and found “ guilty in manner and form as indicted.”</p> <p>The defendant moved in arrest of judgment; the motion was overruled, and on the 12th of December 1868 Hollister was sentenced to pay a fine of §100 and to be imprisoned in the Eastern Penitentiary for two years and three months.</p> <p>On the removal of the judgment to the Supreme Court, Hollister assigned the following errors:— ,</p> <p>That the court erred,</p> <p>1. In not quashing the indictment on the reason assigned May 6th 1868, as follows:</p> <p>“That the breaking and entering a store-house,” &c., as charged in the indictment is not felonious burglary in law.</p> <p>2. In not arresting judgment on the verdict of the jury for reasons assigned Decmber 12th 1868, as follows:</p> <p>“ The offence charged in the indictment is not burglary in law.”</p> <p>“ To break and enter a ‘store-house,’ &c., is not burglary at common law, nor under the statute of Pennsylvania.”</p> <p>“ The defendant cannot be convicted under the 136th section of the Act of 31st March 1860.”</p> <p>“ The indictment is not drawn under the 136th section of tl^e Act of 31st Maroh 1860.”</p> <p>“ There is a misjoinder of counts in the indictment.”</p>

Jones, aldermen of Philadelphia, No. 18, to July Term 1868, issued at the instance of William Nyce.

<p>1. It seems that the obligation of common carriers by railway is simply to transport the goods to their destination, to deposit them without delay and without additional charge in their warehouse until the consignee has a reasonable time to remove them. They are not required as carriers by wagon to deliver at the place of business of the consignee, nor as carrier by water to give notice of their arrival.</p> <p>2. The responsibility of the carrier by rail should last until delivery to the consignee, or until the responsibility of another party begins.</p> <p>3. Transporters may be both carriers and warehousemen; they cease to be carriers when they have placed the goods in their depot or other safe warehouse. Their responsibility as warehousemen is but for ordinary neglect.</p> <p>4. A carrier must take care at his peril that the goods are delivered to the right person, delivery to a wrong person renders him liable, even though innocently and by mistake.</p> <p>5. For such wrongful delivery trover may be maintained.</p> <p>6. The carrier must show that the person to whom he delivered the goods was authorized by the owner or consignee to receive them.</p> <p>7. Goods were transported under a bill of lading from New York to Philadelphia, and landed at the transporters’ wharf. After landing they were lost. Although the liability of the transporters as common carriers may have ceased, they would be liable as bailees, 'unless they proved that the goods had been lost without their negligence.</p> <p>8. Non-delivery is primá facie evidence of want of ordinary care, and throws the burden of proof on the bailee.</p> <p>9. l’he acceptance by a man of goods from a porter is not evidence to constitute the porter his agent, so as to charge him with goods received by the porter to deliver and lost by the way.</p>

<p>1. A guardian, by authority of the Orphans’ Court, on the eve of the marriage of a female minor ward, and with consent of the intended husband and the ward, invested her personalty in real estate. The marriage after-wards took place, the ward died before arriving at age, intestate and without issue, leaving her husband and collateral heirs: Held, that the investment passed to the husband as personal estate.</p> <p>2. The Act of April 13th 1854 (Real Estate), continued to the investment its original character as personal estate.</p> <p>3. A guardian has no authority to convert money into realty, and the investment being under the authority of the court by virtue of a statute, was not tortious.</p> <p>4. Neither the guardian, the ward nor the intended husband could alter the succession.</p> <p>5. The character of the guardian’s act was determined at the date of the investment.</p>

<p>1. A power given to a corporation to forfeit stock must be strictly pursued, and if any restrictions have been disregarded the forfeiture will be declared invalid.</p> <p>2. Equity does not relieve against a forfeiture of stock, if regular.</p> <p>3. A stockholder being a member of a corporation must be presumed to know the terms of his subscription.</p> <p>4. At the end of the time after notice allowed by the charter to pay instalments on stock, the power to forfeit the stock was perfect.</p> <p>5. The entire capital of a corporation is a trust fund for payment of its debts.</p> <p>6. The unpaid subscriptions are part of the assets of a corporation, and a general assignment for the benefit of creditors passes them to the assignee.</p> <p>7. The assignee can proceed only in the name of the corporation, and must show th”at the provisions of the charter have been pursued.</p> <p>■ 8. A chancellor will compel directors to call for subscriptions when his aid is invoked by creditors or their representative.</p> <p>9. When a company ceases to keep up its organization, and abandons all action under its charter, the intervention of equity for creditors becomes indispensable.</p> <p>10. A corporation is. not necessarily dissolved by its insolvency, nor by a writ of sequestration. Its franchises, not capable of assignment, must be exercised by it but in subserviency to its legal and equitable obligations.</p> <p>11. When the debts of a corporation require it, it is the duty of the managers to call for unpaid subscriptions. Their discretion relates only to the time and manner of the making the payments.</p> <p>12. As a forfeiture of stock extinguishes all the rights and liabilities of the stockholder, the creditors can object to it, and invoke the aid of equity to prevent it or set it aside.</p> <p>13. The right to make calls is a franchise vested in the managers, whose lawful exercise can be objected to only by creditors or their representative.</p> <p>14. If on the ground of notice of an assignment for benefit of creditors, stockholders object to pay the treasurer, they should make a tender to the assignee, and if he will not accept they have an equity to be relieved from forfeiture.</p> <p>15. Nothing will call a court of equity into activity but conscience, good faith and reasonable diligence. When these are wanting the court is passive and does nothing.</p>

<p>1. Beal estate was .put into the hands of auctioneers to sell; the conditions of sale were $200 at time of sale, balance on execution of deed within fifteen days ; the purchaser paid $200, but did not pay the balance, although requested ; six months afterwards the property was sold to another person. In a suit to recover back the $200, held, that the $200 were not a deposit, but part of the price paid to the auctioneers as agents of the vendor, and liable in their hands to make good any injury from the purchaser’s default.</p> <p>2. The money could be recovered only on the ground of mutual rescission, on the implied contract to pay money which the purchaser is entitled to recover ex ceqiw et bono.</p> <p>3. Had the purchaser been in no default, and the vendor sold without tender of deed and notice of the resale, the purchaser could have recovered his money without abatement.</p> <p>4. It was the purchaser’s business in such a sale to prepare the deed for execution and tender payment.</p>

274, to January 1868. This was an amicable action and case stated, in which John Given was plaintiff and The City of Philadelphia defendant, filed November 7th 1867. The case was as follows :— “ The plaintiff was elected on the second Tuesday of October 1862, to the office of city commissioner for the term of three years from the 1st day of January 1863.

<p>1. General rules for the construction of wills should be adapted to the particular circumstances of the case.</p> <p>2. The words “ shall happen to die without issue” generally mean an indefinite failure of issue and cut down a fee simple to a fee tail, but this rule lias no application to instruments conferring a power to devise in fee.</p> <p>3. A gift with uncontrolled power of devise carries the fee. What shall happen if the first taker die intestate is for the law to decide.</p> <p>4. A testator cannot say that although his devisee has the fee and power to devise, yet if he die intestate the law shall not take its course.</p> <p>5. If after devising to a son, his heirs and assigns, the testator add “ in case he shall happen to die intestate and without issue,” then over, the word “ intestate” recognising a power of devise, destroys the ordinary effect of the words “ die without issue,” and leaves the fee unharmed thereby and intact.</p> <p>6. The limitation over after the fee is void.</p> <p>7. A devise to A. and “in case” of his death to B., is an absolute gift to A. unless he die in the testator’s lifetime. Death generally, is not meant, but death in the lifetime of the testator.</p> <p>8. If the testator blend his realty and personalty, words which would create an estate tail as to realty are to be construed as carrying a fee, for there can be no estate tail in chattels.</p> <p>9. Where a testator devised to his son Joseph real estate “ to hold to him, “his heirs and assigns,” and bequeathed certain personal property to him, “ his heirs and assigns for ever,” with a limitation over as follows, viz. “ In case my said son Joseph, who is now in a declining state of health, shall happen to die intestate and without issue, then and in that case, I give, &c., the estate, real and personal, willed, &c., unto him, to my son, the said William, and to his heirs and assigns for ever; subject to the payment of 150Z. to each of my other sons, the said Jacob and John, or their respective heirs and assigns,”it was held,</p> <p>(а) . That Joseph took a fee simple and not a fee tail.</p> <p>(б) . That the limitation over to William was intended to provide for the death of Joseph within the lifetime of the testator, or in the lifetime of William, that it was therefore founded upon a definite failure of issue, and operated as an executory devise and not as a vested remainder, that Joseph having survived both these events, eo instanli the executory devise to William was defeated, and Joseph took a fee simple.</p> <p>(e). That the power of disposition in the first taker was inconsistent with the limitation over, and the latter is to be rejected as repugnant and void. Per Brewster, J.: approved by the Supreme Court.</p> <p>10. The words “ shall happen to die intestate” negative the idea of an estate tail to Joseph with remainder to William.</p>

302. In the court below Lorin Palmer filed a bill on the 23d of August 1867 against George S. Harris. The important allegations were, that the plaintiff was a tobacco merchant in New York, and made superior cigars, knpwn as the “ Cfolden drown,” which he sold in large quantities.

, of James Elliott, deceased: No. 144, to July Term 1868. The appeal was by the accountant. Her account had been referred to Alexander R. Cutter, Esq., as auditor, before whom a number of exceptions to it were taken by creditors of the decedent: amongst others, that she had not charged herself with the sum of $1000 for which she had sold the good-will of a tavern. On this exception the auditor found the following facts.

33. Certain suits were pending in the District Court of Philadelphia between Edward Quay, plaintiff, and Grideon Gr. Westeott, defendant.

<p>1. Taxes |25.10 were assessed on a lot in Philadelphia in 1859. It was sold under a judgment in 1863 for $610; the purchase-money was brought into court and distributed. In 1864 the city entered a lien against the lot for the .taxes, under which it was again sold. Held, that the city having failed to claim the taxes from the fund in court, the lien did not follow the land in the hands of the final purchaser.</p> <p>2. The sum arising from the sheriff's sale was primft facie sufficient to pay the taxes and costs, and it lay upon the second purchaser to rebut the presumption.</p> <p>3. City taxes are a prior lien, but liable to be divested by a judicial sale under a junior encumbrance, subject only to the restriction of Act of 11th March, 1846, $ 6 (Municipal Claims), for so muchas the proceeds of sale will not pay.</p>

200, to July Term 1868. In the court below this was an action brought to March Term 1867 by Alfred Jones against George W. Huntzinger and Henry L. Cake, trading as George W. Huntzinger & Co. The plaintiff filed an affidavit of loan, averring that on the 11th of September 1866 he lent the defendants $1000, to be repaid the next morning, but that the same had not been repaid; that the loan was made through Charles Huntzinger, who was acting for the defendant, and told the…

<p>1. On an appeal from an interlocutory decree granting an injunction and appointing a receiver, copies of the affidavits and testimony taken on the motion should be filed and accompany the record. The Supreme Court is to rehear and decide the case on the merits.</p> <p>2. A will was admitted to probate and on appeal an issue was directed. The executors were also devisees and in possession. Held on these facts that a bill to restrain them from collecting rents and the appointment of a receiver, disclosed no equity.</p> <p>3. The defendants as devisees had a primft facie legal right to the lands, and being in possession, with or without color of title, an adverse claimant-could not come into equity and obtain an injunction to turn them out.</p> <p>4. An injunction and receiver are resorted to in any ease only to preserve property in statu quo pending a contest.</p> <p>5. When a mere legal right is in dispute, there being no privity between the claimants, and in the absence of fraud, equity will not interfere at the instance of a person claiming real property under a legal title to grant a receiver against parties in possession.</p> <p>6. A decree granting an injunction and appointing a receiver is a unit:— the order appointing a receiver is itself an injunction.</p>

257, to January Term 1869. This was an amicable action and case stated, in which John Thomson and John' Castner-were plaintiffs and Thomas J. Leiper was defendant.

<p>1. A contract was to deliver 800 tons of coal at $6 per ton, “ coal to be delivered on board vessels as sent for during months of August and September. Should we be unable to get all away by close of September, it is understood you can keep over on wharf or bring down later, as you prefer, as much as 300 tons of above quantity.” This was an entire contract, and payment was to be made on its fulfilment; the purchaser was not bound to pay for each cargo on its delivery.</p> <p>2. The entirety of a contract depends on the intention of the parties, not on the divisibility of the subject.</p> <p>3. The mode of measuring the price of the subject of an entire contract will not change the effect of the agreement.</p>

217, to January Term 1867. The proceeding in this case was an attachment execution at the suit of Robert Cornelius and others, trading as Cornelius & Baker, against Bernard Douredoure, in which William Taylor and Simon Delbert were the garnishees. The attachment was issued and served June 28th 1858. The judgment had been recovered to June Term 1858 for $352.65.

2, to July Term 1867. On the 12th of April 1867 Joshua Spering, assignee of the National Safety Insurance and Trust Company, filed 'a bill in equity against T. A. Drexel, Anthony J. Drexel and others, trading as Drexel & Co., and Stephen Coulter. The. bill set out: — 2.

1, to July Term 1868. This was an action of assumpsit, commenced February 29th 1868, by John J. Dovey and others, trading as Dovey, Buckley & Co., against John Wall. The plaintiff filed a copy of book entries as follows: “ 1867 — Oct. 30th.

205, to January Term 1868. This was an action of assum-psit, brought April 25th 1865, by William II. Horner against Edward R. Jones. The 1st count of the declaration was on a promissory note dated December 30th 1864, made by the defendant to the order of the plaintiff for $750 in sixty days after date. The 2d count was on a similar note made by the “ defendant by his attorney in fact, J ames R. Booth.” There were also the common counts.

214, to January Term 1868. William Anna Hoopes kept a hoarding and day school in the city of Philadelphia. Her establishment required two houses to he thrown into one. She furnished one room for her parlor, and another for her bed-room. Everything outside of these apartments was used for the purpose of keeping up the school. The furniture of her apartments was appraised at $1345. The remaining articles of furniture used for her boarding scholars were sold for $4500.

227, to January Term 1868. The appeal was by Catharine E. Vincent, in her own right and as guardian of William Henry Vincent, a minor, from the decree of the Orphans’ Court distributing the estate of Vincent De Amarelli. The parties were the executors and the legatees except Mrs. Vincent on the one side, and Mrs. Vincent on the other.

Sur exceptions to the special report, under the order of the Supreme Court, of John M. Collins, Esq., auditor, appointed by the Court of Common Pleas to distribute the balance appearing on the second… Held: that the lessors were discharged from their covenant: The City of London v. Greyme, Cro.

46, to January Term 1867. > _ . > _ This was a bill in which Phineas J. Horwitz and Caroline his wife in her right, Elizabeth Norris, Serrill H. Brown and Adeline his wife in her right, Joseph Parker Norris (3d), Lamar W. Fisher, Caroline Norris (the said Lamar, Caroline Norris, Elizabeth and Joseph being devisees of Annie Fisher, deceased), the said Caroline Norris, Elizabeth, Adeline, Joseph and Annie being children of Joseph Parker Norris, Jr., deceased, were…

<p>1. A sale by directors of the property of an insolvent corporation to hinder, &c., creditors, would not make the purchasers trustees for the corporation or its stockholders. Creditors could have avoided it.</p> <p>2. A sale was made to certain creditors of a corporation. If it was for a fair price and to procure the means of paying debts, and especially if its proceeds were applied to their payment or security, other creditors could not have avoided it.</p> <p>3. As a general rule directors of a company have no right to do an act foreign to the purposes of its creation.</p> <p>4. Though the law ordinarily frowns upon contracts made by directors of a corporation with themselves as private persons, such contracts are not necessarily void; but their fairness must be shown.</p> <p>5. Such sales are supported in equity where the fiduciary relation has ceased before the purchase, where it was made with consent of the stockholders, or where they have by acquiescence debarred themselves.</p> <p>6. An attempt to fasten a constructive trust on a purchaser must fail unless ■made within a reasonable time. ,</p> <p>7. Acquiescence is presumed from delay.</p> <p>8. If a trustee to sell becomes the purchaser, the purchase is generally voidable, but the cestui qne trust must move in a reasonable time.</p> <p>9. When a party claims to hold another as trustee for personal property ¡under a constructive trust, he must assert his claim within six years from the time when it is alleged to have originated.</p> <p>10. There may be cases where six years would not be allowed, as where the party stands by and sees another dealing with the trust property in a manner inconsistent with any trust, and makes no objection: or where rights of third parties have intervened: or where the property is of a peculiar kind, and the alleged trustee in ignorance of an intention to hold him to account relying on his ownership, enters on a hazardous business or incurs responsibilities.</p> <p>11. Laches for less than six years, aided by other circumstances, will bar a right.</p> <p>12. The character of an instrument is not to be determined by what the parties have called it.</p> <p>13. Instruments alleged to be assignment for benefit of creditors, construed.</p>

<p>1. A testator domiciled in New York bequeathed personal property to his two children and the survivor, if both should die before attaining age, the property to go “in trust to found” a professorship, &c. He appointed his wife executrix. On settlement of her account the surrogate of New York decreed that she should keep the balance invested and “ retain the same on trust” to be applied to the trusts in the will. The executrix, with her children, changed her domicil to Chester county, Pennsylvania. She invested the fund in United States, Pennsylvania and Philadelphia bonds, and in mortgages in Pennsylvania, Delaware and Maryland. Held, that she was liable for tax in Pennsylvania, only on the amount invested in mortgages in Pennsylvania.</p> <p>2. To tax her here,it must be shown that she is amenable as trustee for something she holds which the laws of Pennsylvania can reach in her hands.</p> <p>8. The jurisdiction of the administration and the control and distribution of the trust estate is in New York.</p> <p>4. The mortgage contract was personal, and gives her a personal right to demand payment which must be enforced in her own name under the laws and in the tribunals of Pennsylvania.</p> <p>5. The contract characterized her as trustee in fact by her own act, and draws to it the protection of the laws of Pennsylvania, and to this extent she is liable to taxation as the price she must pay for the privilege.</p> <p>6. The fact that she is personally here does not make her a trustee here or amenable to this jurisdiction for property not brought here and subjected by her act to the operation of the laws of Pennsylvania.</p>

<p>1. Where a duty of a public nature is devolved upon a number, although all must deliberate, a majority may decide.</p> <p>2. Under a reference to three, the award of whom or a majority tobe final, in case of an award by two, their proceedings are presumed to be regular.</p> <p>3. An act appointed three commissioners to lay out a road, and directed that “said commissioners or a majority of them” should view, &c., and report. The act afterwards provided “ if any vacancy should occur, the same shall be supplied by the remaining commissioners selecting a suitable person to constitute a board of not less than three members.” Two only signed the report. Held to be regular.</p>

<p>1. If a debtor at or immediately after the execution or assignment of a mortgage on his property to a creditor, transfer a policy on the mortgaged premises, though nothing be expressed at the time, or it be transferred as collateral security generally, it is a conclusion of law from the nature of the transaction, that the policy is collateral security for the mortgage.</p> <p>2. It would require evidence of an express understanding to authorize the assignee to apply the amount of insurance received for a loss to any other debt or liability.</p> <p>3. Farnum held a mortgage against Buckley, who had an insurance on the mortgaged property. Buckley at the same time owed a judgment to Garrett, who at the request of Buckley took an assignment of Farnum’s mortgage, and as additional security Buckley’s wife gave Garrett a mortgage on her own estate. Buckley at the same time assigned to Garrett the policy of insurance as “ collateral security” generally. Held, that the insurance money after a loss must he appropriated to the wife’s mortgage, and could not he appropriated to Garrett’s judgment.</p>

<p>1. The definition of “ low-waiw mark” in Pennsylvania is to he decided hy the law of that state, and not by that of Great Britain or of the sister states.</p> <p>2. At common law, those streams only in which the tide ebbs and flows are considered navigable. This rule has not been adopted in Pennsylvania.</p> <p>3. The Commonwealth has not parted with the control of navigable rivers nor of the soil beneath.</p> <p>4. Grants of the Commonwealth’s lands bordering on navigable streams, even when calling for the river as a boundary, do not extend beyond low-water mark: nor is the title of the grantee absolute except to high-water mark.</p> <p>5. The right of passage over the intervening space between high and low water mark remains in time of high water in the public.</p> <p>6. The Commonwealth may use this space for purposes connected with navigation without compensation, and may protect it from unauthorized use, even by the owner of the land.</p> <p>7. Islands'in'navigable streams belong to the Commonwealth, and are excepted from the general laws for the sale and settlement of vacant lands: they are granted under laws specially applicable to themselves.</p> <p>8. “ Low-water mark” as the limit of a riparian owner’s title is the ordinary low-water mark unaffected by drought.</p> <p>9. An island cut off from the mainland in the ordinary stages of low water cannot be added to the mainland, because in the very dry season of the year the stream had almost disappeared, and no water flowed over the intervening bed.</p> <p>10. An island is a body of land surrounded by water in its flow in an ordinary stage, although at some periods of the year the water might not pass. Per Butler, P. J.</p>

65, to January Term 1869. On the 13th of April 1866, David E. Wood and Mary his wife, presented a petition to the Orphans’ Court of Montgomery, setting forth that she is a niece of John Ereedley, deceased, who, by his will proved December 17th 1851, directed that the residue of his estate be divided into 25 shares, and amongst other things further directed as follows:— “ Nine of said shares I give to my brother Jacob, in trust for and to be divided amongst his nine children,…

<p>1. A testator gave the interest of one-third of his estate to his wife for life, and after her death the principal to go to his sons. The trustee holding the fund advanced to the sons their shares, taking a.mortgage conditioned for the payment of the widow’s interest. The mortgaged property was sold by the sheriff and assignees, and the trustee received a less sum from those sources than he had advanced. After the widow’s death the remaining part of the fund being in the Orphans’ Court for distribution and the interest on the deficiency being unpaid, it was held that the estate of the widow was entitled to receive the arrearages out of the fund, before the sons received any part as legatees.</p> <p>2. The Orphans’ Court in its jurisdiction over executors and other trustees is a court of equity, and adopts the rules and principles of equity as their guide in the settlement of accounts.</p>

<p>A testator gave the residue of his estate to his executors in trust for his wife for life, and after her death he provided “ all my estate * * I give * * unto my seven children in equal shares; * * the shares so aforesaid given to my said daughters, I order * * shall be held by them respectively in trust to take the income and to appropriate the same respectively * * for their own sole and separate use whether covert or sole for their lives,” and at the decease of any one her share to her children. He further directed that his executors might at the request of the widow divide in her lifetime so much of his personal estate as she might designate amongst all his children, so that each should have an equal share “ to be held by them, their heirs and assigns, ” with proviso that the shares of his daughters should “ be held by them in trust for the same term and under the same powers, &c., as are before mentionedi of their respective shares of my estate.” Held, that the daughters took but a life estate in the legacies.</p>

<p>1. Where there is a bequest of personalty in terms absolute in remainder after a life interest with an alternative bequest in case of the death of the legatee, to children of the legatee or in default of childron then over, such contingency will be construed as limited to the period of the life interest and unless it occur during that period the bequest will be absolute.</p> <p>2. A testator gave his property to his executors in trust for his wife for life and after her death to convert it into money and then he gave it to his seven children in equal shares, those to his sons “ to hold to them respectively their heirs and assigns for ever.” If any of his children should die leaving issue, the issue to take the share of the parent, and if any should die without issue the share to “be distributed among my surviving children and the issue of such as might be deceased:” Held, that a son who survived his mother was absolutely entitled to his legacy.</p>

<p>1. Corporations, other than municipal may become amenable to the criminal law for public nuisance and may be indicted.</p> <p>2. As a general rule they are not indictable for misfeasances unless they assume the shape of nuisances.</p> <p>3. The Delaware Division Canal Company purchased from the Commonwealth a canal, part of the public works as it had been constructed by the Commonwealth. Water escaped through the bank of the tow-path and formed stagnant and noisome pools on adjoining land not belonging to the canal company. Held, that the company were indictable for maintaining a nuisance.</p> <p>4. Arrests of judgment arise from intrinsic causes appearing on the face of the record.</p> <p>5. In criminal cases an arrest of judgment is founded on exceptions to the indictment.</p> <p>6. In civil cases whatever is alleged in arrest of judgment must be such matter as would on demurrer have been sufficient to overturn the action or plea. In the applicability of the rule there is no difference between criminal and civil cases.</p> <p>7. The Supreme Court has but a limited power of review in Commonwealth cases of the grade of misdemeanor, &c.: the proof cannot come before it, but can appear only when the record evinces error.</p> <p>8. Commonwealth v. Read, 10 Casey 275, explained.</p> <p>9. A sentence on a corporation to abate a nuisance created by it is proper although the nuisance is on the land of another.</p> <p>10. Averring that a nuisance is within a borough, is a sufficient averment of its being in the neighborhood of dwellings.</p>

<p>1. In proceedings by an owner of land against a railroad company for damages by the construction of their road, the court charged that he could not be compensated for the risk of fire to his barn and contents and added: “ But if from the proximity of the road to the building, the danger of the fire is necessarily so imminent that no man of common prudence wmuld use it for the purposes of a barn, but would be driven from it and compelled to provide himself with a barn elsewhere, then the plaintiff is clearly injured in this respect, and the jury must consider it in estimating the effect of the road on the property.” Held, to be proper-.</p> <p>2. The depreciation of the value of property arising from the road and not an anticipated injury to the premises by fire is the subject of compensation.</p> <p>3. The injury from location in relation to the peculiar features of the premises, proximity to buildings, interruption of their ordinary use and of - the avenues of passage, inconvenience by embankments, deep cuts and the like, are proper subjects for consideration in estimating the depreciation in the value of the property as a whole.</p> <p>4. The legislature intended to provide compensation for every injury usually recognised as such by the common law, if committed by a private individual.</p>

<p>1. An intestate left no issue, brothers nor sisters, but left nephews and nieces, and the children of deceased nephews and nieces. Held, that the nephews and nieces took the intestate’s estate per capita, and the children of those deceased such shares as their respective parent's would have taken.</p> <p>2. Under the Act of April 27th 1855 (Intestates), grandchildren of deceased brothers and sisters take by representation, i. .e. such share as their parents if living would have taken.</p> <p>3. The Intestate Acts of 1833 and 1855 as to collaterals below brothers and sisters construed.</p>

<p>1. In an issue in a sheriff’s interpleader the claimant is properly the plaintiff, and the burden of proving title to the goods is on him.</p> <p>2. Possession by the defendant in the execution of the goods levied on, is primá facie evidence of title in him.</p> <p>3. The recital in an agreement between the plaintiff in the issue and a third person, that such person was owner of the goods and had sold them to the plaintiff, is not evidence against the defendant in the issue.</p>

<p>1. A deposition was taken ex parte but with notice, on a rale to open a judgment. On the trial of the case the witness was alive and in the state. Held, that the deposition was admissible.</p> <p>2. A defendant in a judgment on a note entered by order of the court for default of appearance pleaded freehold and obtained a stay of execution. The judgment afterwards having been opened, Held, that he was not estopped from setting up a failure of consideration for the note.</p> <p>3. Being a freeholder he was entitled to stay under the Act of June 16th 1836 (Execution) without plea, and the court would set aside an execution if issued.</p> <p>4. The fact of pleading his freehold was evidence against him.</p> <p>5. Questions proposed to the court should be confined to matters of law, and if facts are introduced it should be hypothetically, leaving it to the jury to decide.</p> <p>6. A judgment for default of appearance, may be opened after the term.</p> <p>7. Opening a judgment rests in the discretion of the court below and cannot be reviewed on error.</p>

<p>1. A mechanics’ lien was filed by W. against O. owner, &e., and H. contractor, &c., on an engine-house with the engine, machinery, &e., then in a •colliery on a tract of land owned by 0. — for work, &c., furnished at the request of 0. — he being the owner, H. being the “contractor, architect or builder.” On a scire facias against both the jury found specially that H. was lessee of C. of the colliery for mining coal for twenty years: that II. contracted with W. to erect the engine, &c. The court below entered judgment against II. Held, that the lien was erroneously entered against the owners, and the judgment was reversed.</p> <p>2. An execution on such judgment would require the sheriff to make the money out of the premises as described in the record.</p> <p>3. The plaintiff should have filed his lien against the lessee who was the contractor: and no lien having been filed against the leasehold interest there was nothing to support the judgment.</p>

<p>1. The Act of January 11th 1867, authorizing mining, &c., companies to mortgage their “property” for loans, does not authorize a mortgage of chattels.</p> <p>2. Chattel mortgages and sales leaving the property with the debtor are against policy, and void as to execution creditors.</p>

<p>1. A testator gave to his wife all his personal estate “ as well as (his) real estate for her use, she to draw all rents and interest that may become due on the same, * * with the following conditions after my honest debts are paid she can draw the rents and interest/-’ If the rents and interest should not be sufficient for her support, she to use moneys collected and if that should not be sufficient to sell as much real estate as would maintain her. He gave also legacies payable after the death of his wife. Held, that there was no special charge and trust for payment of debts on his real estate created.</p> <p>2. The estate being insolvent the rents received after the testator’s death were payable after the death of his wife, to his children.</p> <p>3. The will authorized the wife “ with the consent of my administrator and the rest of my family to sell all the property.” This was not an equitable conversion, being only a contingent authority.</p>

<p>1. Money of a wife was paid by her debtor, the husband took it, counted it in her presence but did not give it to her; he afterwards invested it in real estate. He gave her no writing at the time to secure it, but eight or nine years afterwards gave her a judgment-note for it. Held, not proof of a gift by the wife.</p> <p>2. She was not bound to attempt to rescue it from her husband or proclaim that it was not a gift; she might rest on the idea that he received it to take care of it for her.</p> <p>3. Not being a gift the husband received it as trustee for his wife and equity would compel him to account to her for it.</p> <p>4. If the Statute of Limitations might be a bar, the husband was not bound to interpose it in favor of creditors.</p> <p>5. If there had been a gift of th°e money when the husband received it, he could not afterwards change it into a loan.</p> <p>6. The Married Woman's Act of 1848 is an enabling or enlarging act, and such acts should be administered in the spirit of the rights enlarged by them.</p>

<p>1. A father lent money to a married daughter; it was secured by bond executed by the husband alone and a mortgage by both on the daughter’s separate real estate. She kept it in her separate account in bank, bought goods with it, with her husband’s assent opened a store in her own name, which she continued so to keep, paying for other goods with the proceeds and occasionally buying on a short credit. The goods were levied on for her husband’s debt. In a suit by the wife the court below instructed the jury that the goods were the husband’s and she could not recover. Seld, to be error.</p> <p>2. The execution of the bond did not make it the husband’s debt: the bond was collateral to the mortgage.</p> <p>3. Property purchased by a wife on the credit of her separate estate or by her earnings derived from the management of it, is protected from her husband’s creditors.</p>

<p>1. On exceptions to a report of an auditor, the testimony not having been returned with the report, the court below said that it was the duty of the party relying on the testimony to see, that it was taken down and returned to the court. Held, to be error, and that it was not the duty of one party more than of the other.</p> <p>’2. It is the duty of an auditor to take notes of the material evidence, not necessarily to return it with his report, but to have it ready to file if called for by the court.</p> <p>3. An auditor made a report finding facts and stating that he was not requested to report the testimony, and that he took notes of it only to refresh his memory. Upon exceptions that the auditor erred as to the facts, the report should have been recommitted to him to rehear and reduce the testimony to writing. It was error to decide on the assumption that there was not sufficient evidence to sustain the finding.</p> <p>4. A trustee can claim no credit except for the amount he has actually disbursed in payment of claims against the estate, whether done with his own funds or the funds of the estate.</p>

<p>1. To make tlie separate estate of a married woman liable for a debt contracted during coverture, all that is required is that the claim shall be for necessaries for the support and maintenance of her family, that they were contracted for by her or in her name by some one authorized by her, and that her husband was insolvent.</p> <p>2. Fraud is not to be presumed without satisfactory proof of its existence; which can scarcely be affirmed where a proper motive exists, which might have been as readily the operating motive, as one that was fraudulent.</p> <p>3. Chamberlain purchased from Bear his interest in his wife’s estate, upon condition that out of the proceeds Bear would pay back the amount of a debt due by him to Chamberlain; Bear having communicated to Chamberlain his expectation that his interest would be attached by creditors, and that something would have to be done to save it from attachment: Held, that, Chamberlain’s purchase, being, found to be ancillary to the main object of saving his debt, and not being fraudulent in actual intent, is not to be tortured into a fraud without satisfactory evidence of a positive intent to collude with Bear to hinder and delay creditors.</p>

<p>1. Unless the judgment of the court below on a reserved question be excepted to, it will not be reviewed by the Supreme Court.</p> <p>2. In an action by a corporation, a plea “that there is not, nor on the day of the purchase of the writ, nor ever since, was there any such corporation,” is a plea in bar and not in abatement.</p> <p>3. A plea in bar impugns the right of action altogether; a plea in abatement only the form or name in which it is brought.</p> <p>4. Misnomer of a corporation as well as of a natural person must be pleaded in abatement.</p> <p>5. That there never was such a person or corporation as the plaintiffs, goes to the right of action and is pleadable in bar.</p> <p>6. In a suit by a natural person it is not enough to aver in the plea that there was no such person at the impetration of the writ, the averment must be that there never was such a person. The same rule applies to a corporation.</p> <p>7. On writ of error whatever would have been available on general demurrer, or in arrest of judgment, may be assigned for error.</p>

<p>1. A scire facias sur judgment must follow the original judgment in amount, date and parties; a failure in this respect is decisive against the admissibility of the record on the plea of nul tiel record.</p> <p>2. A judgment was entered against several, one of whom was surety and afterwards paid the debt. A scire facias to his use could not be maintained, omitting him as one of the defendants.</p> <p>3. The legal plaintiffs could maintain the scire facies, for the benefit of the defendant paying and entitled to be subrogated: the court would take care that the execution should be for the use of the proper party.</p> <p>4. The error in omitting one of the defendants is amendable under the Act of May 4th, 1852 (Amendments.)</p> <p>5. A guardian party to a suit is admissible as a witness under the Act of 27th May, 1865, which is a remedial act and should be liberally expounded.</p>

<p>1. Every order or decree granting or refusing a preliminary injunction is necessarily interlocutory.</p> <p>2. A final decree is that which ends a case in the court below.</p> <p>3. The Act of February 14th, 1866, applies only to appeals when a preliminary injunction is granted; an appeal is not allowed when such injunction is refused.</p>

<p>1. Frankford Passenger Bailway v. Philadelphia, 8 P. F. Smith 119, affirmed.</p> <p>2. The imposition by the councils of Philadelphia of an annual sum on a city railway company's cars as a tax to raise revenue, would be an invasion of the chartered rights of the company and void.</p> <p>3. But the imposition of a reasonable charge for a license, as a police regulation, although its incidental operation should augment the receipts into the treasury, is not invalid.</p> <p>4. If a municipal regulation be lawful when intended for one purpose and unlawful if for another, the presumption is that the purpose was lawful unless it clearly appear otherwise.</p> <p>5. The construction of charters is most strongly against the corporations or persons claiming rights under them, and most favorably to the public.</p> <p>6. The exercise of a corporate franchise being restrictive of individual rights, cannot be extended beyond the letter and spirit of the charter.</p> <p>7. The city imposed a license of $5 on each car of railway companies: a company afterwards entered into a bond required by ordinance for faithful compliance with regulations, &c., as a condition for the consent of the city for the occupancy of the streets, &c. This did not constitute a contract with the city which could not he varied.</p>

<p>1. Property was leased for §1000 per annum payable quarterly, with a stipulation that the lessees might give up the lease on six months’ notice; the lessees -wishing to give up the lease agreed to add §500 to the rent then due in lieu of the notice. Held, that the §500 was rent and could be dis-trained for.</p> <p>2. After rent had become due the lessees assigned all their property to the lessor for the benefit of creditors; the assignment was declared to be invalid, the lessor then distrained. Held, that he could lawfully do so, notwithstanding he had accepted the assignment.</p> <p>3. A distress was made on the 27th of November, and notice given the same day. An appraisement on the 2d of December was too early.</p> <p>4. Such an irregularity makes the landlord a trespasser ab initio; a sale under such irregularity is invalid and trover can be maintained against the purchaser.</p> <p>5. Time is to be computed excluding the day on which the act is done from which the count is to be made.</p>

<p>Appeal from the decree of the Court of Common Pleas of Philadelphia: In Equity: No. 325, to January Term 1868.</p> <p>In the court below this was a bill by John O. Rulon against John M. Hall, averring that for the consideration of $3000 paid by the plaintiff, the defendant, on the 23d of November 1863, sold to the plaintiff the stock and good-will of an undertaking establishment, No. 1313 Yine street, Philadelphia, and agreed to retire from the business, and not go into it again in Philadelphia; that the stock was not worth more than $1500, and the remaining $1500 was paid for the good-will; that the defendant had resumed business in March 1866, and was carrying it on in the immediate vicinity of the original place.</p> <p>The answer denied that the defendant had agreed not to resume business; averred that the stock was worth $3000, with other allegations not material to state here.</p> <p>The case was heard below on bill, answer and proofs, without having been referred to a master, and the court decreed:—</p> <p>“ That a perpetual injunction be decreed against the defendant, restraining the said defendant, John M. Hall, from conducting or carrying on his business of undertaking, or as an undertaker, at No. 1539 Vine street, or at any other place within the limits ^of the city of Philadelphia, according to the terms of his agreement with the plaintiff, John C. Rulon; and that the said defendant, John M. Hall, pay the costs of this suit.”</p> <p>The defendant appealed to the Supreme Court. When the case came up there for hearing it was referred to Samuel Dickson as master, “ to report on the evidence, with a decree or otherwise, as the equity of the case shall require, and as to costs.”</p> <p>From the report of the master it appeared that there was an agreement in writing, dated November 23d 1863, the material points of which are as follows:—</p> <p>“ Know all men by thfese presents, that I, John M. Hall, of Philadelphia, for and in consideration of the sum of $3000 * *</p> <p>paid by John Charles Rulon, of the second part * * do grant</p> <p>and convey unto the said party of the second part the good-will of my undertaking business, with the contents of shop in the rear of 1313 Vine street, and fronting on Pearl street; all the contents of third story, consisting of mahogany and walnut coffins, &c. Also the furniture of office 1313 Vine street, consisting of book-case, &c. Also, bill of improvement on property 1313 Vine street to be deducted from the rent when the lease expires. Together with lease on property 1313 Vine street, expiring June 1st 1865,” &c.</p> <p>After this paragraph, and before the attesting clause, there is a blank of seven lines in the written paper.</p> <p>Also the evidence of Joseph R. Black, a witness for the plaintiff, who testified:—</p> <p>“ I was present at the interview between the parties in November 1863 ; I was present when the arrangement was made between Mr. Rulon and Mr. Hall. Mr. Rulon proposed to Mr. Hall to draw up an article of agreement that he, Mr. Hall, should not go into business again. Mr. Hall replied that it was unnecessary. ‘ I have sold out to you; I shall never go into-business again in Philadelphia; that you need give yourself no uneasiness about.’ He said his health was poor, and was glad to get out of the business. No one present but Mr. Hall, Mr. Rulon and myself. There was disposed of that time the entire stock of the undertak- _ ing business. Mr. Hall reserved for himself all the horses and carriages, except one horse and one wagon. Mr. Hall said he was going into the livery business.”</p> <p>And of Alexander Black, who testified: “I paid the money ■ through Mr. Rulon to Mr. Hall; I saw Mr. Rulon pay the money to Mr. Hall; I saw them both together in Mr. Hall’s office, No. 1313 Yine street, about Christmas of 1863. I suggested to Mr. Hall that Charles was rather young and inexperienced in the undertaking business. Mr. Hall said he was capable of driving the whole business; I suggested the idea that he, Mr. Hall, must assist him, lending his influence.</p> <p>“ Mr. Hall said he would do all he could for him as long as he, t Mr. Hall, remained in the livery business. I then stated, I would have been better satisfied if there had been an article drawn up between them, that Mr. Hall was not to go into that business again. Mr. Hall said he thought I need have no fears on that point, for his health would not permit, if he was disposed to. He said if he got out of the livery he talked of going West in the lumber business; he said he would not go into the undertaking business in Philadelphia if he should come back; so I understood him; I am certain that he said so. I then passed the money to Mr. Rulon. I told him to count it and pay it over to Mr. Hall. I saw Mr. Rulon pay it to Mr. Hall.”</p> <p>There was evidence that the defendant Hall afterwards went into the same business at 1539 Yine street, and had advertisements published in Philadelphia newspapers in the following form:—</p> <p>“ J. M. Hall, general furnishing undertaker, late of No. 1313 Yine street, has removed to 1539 Yine street, where he will continue his former business. Strict personal attention at all hours.” John E. Balderston, for the defendant, testified:</p> <p>“ To the best of my knowledge, I think J. M. Hall resumed business in Philadelphia sometime in April or May, 1866; the first I knew of his having resumed business was, I met Mr. Rulon and he told me that Mr. Hall was about starting business again; we had some little conversation about it, to the best of my knowledge ; I asked Mr. Rulon if he could not prevent Mr. Hall from resuming business again; to the best of my memory, Mr. Rulon said he did not know whether he could stop him or not, as he had no special agreement against his, Mr. Hall’s, not resuming business ; so I understood it; I remarked I thought it was a mistake if he had not a special agreement that he, Mr. Hall, should never resume the undertaking business in this city.</p> <p>“ Mr. Rulon said that he was furnishing Mr. Hall with coffins and the use of his wagon; I understood that Mr. Hall was getting his work done by Mr. Rulon; I think I saw them several times together after Mr. Hall resumed business; I saw them at Mr. Rulon’s once, and in the wagon together at my stable.”</p> <p>Also, Samuel Fogg, who testified: “ I had a conversation with Mr. Rulon after Mr. Hall resumed; I told him, Mr. Rulon, that I thought he had made a grand mistake in assisting Mr. Hall to resume business, by furnishing him with coffins and wagons, if there was no written contract that Mr. Hall should not go into business again; he said it was a mistake; I had seen John Hall at Mr. Rulon’s ordering things when I was there for the same purpose, and that was why I knew Mr. Rulon was furnishing Mr. Hall.”</p> <p>The Master amongst other things reported, as his conclusions:</p> <p>“ 1. By the terms of the sale, November 23d 1863, the defendant, Hall, agreed not to resume the undertaking, business in the city of Philadelphia. This was a term of the contract between the parties, and was omitted from the bill of sale, through the fraud of Hall.</p> <p>“ 2. This agreement was upon a sufficient consideration, and is in itself reasonable.</p> <p>“ 3. Hall’s resumption of business in the city of Philadelphia was under such circumstances and in such a manner as should be restrained by injunction, as a violation of his contract for the sale of the good-will, in case the court should be of opinion that the agreement not to resume is not proven.</p> <p>“ 4. His resumption of the business was not with the consent of the plaintiff, nor was there anything in the conduct or declaration of the plaintiff to preclude him from now enforcing his rights.</p> <p>“ 5. There is nothing in the case to vary the ordinary rule as to costs, which should be paid by the defendant.</p> <p>“ The Master reports that this is a proper case for equitable interference, and, as the form of the decree in the court below seems to be unexceptionable, recommends that the appeal be dismissed, and the decree of the Court of Common Pleas be affirmed, at the costs of the appellant.”</p>

<p>1. City v. Elanigen and City v. Johnson, 11 Wright 21 and 382, affirmed.</p> <p>2. Words of statute which are affirmative and relate to the manner in which power or jurisdiction vested in a public officer or body is to be exercised and not to the power itself, may be construed directory.</p> <p>3. Negative words which go to the power or jurisdiction are not construed to be directory.</p> <p>4. The board of health of Philadelphia is authorized to appoint officers and fix their compensation. Bladen was appointed clerk in 1858; the board of health in 1865 fixed the clerk’s compensation at §2000 after January 1866: the councils appropriated for the payment of the clerk’s salary only §1400 per annum. The Act of April 21st 1858, directed that no debt, &c., should be binding on the city unless authorized by law or ordinance, and there be a sufficient previous appropriation made by councils. Held, that Bladen could not recover beyond §1400.</p>

<p>1. An act provided that no contract should be made by a head of department for the city, unless for objects authorized by councils. Councils by resolution authorized a department to contract for paving, &c., with the condition that the contractor should be selected by a majority of the property owners of the front to be paved, the cost of paving, &c., to be collected from the owners on whose front the work should be done. On a scire facias on a lien entered for the paving, Held, that the claimant could not recover unless he first proved that he had been selected by a majority of the owners.</p> <p>2. The contractor doing the work without such selection was a mere volunteer and could not recover from the city or from the owners.</p> <p>3. The city allowed suit against the owner in her name ; from this a contract with the department of highways was to be presumed.</p> <p>4. The department had no authority to enter into a contract unless with one selected by a majority of the lot-holders, and the contractor is presumed to have had notice of the resolution.</p> <p>5. Having submitted the selection to the lot-holders the city could not adopt the work of a paver not chosen by them, and oblige them to pay the cost.</p> <p>6. City v. Wistar, 11 Casey 427, and City v. Burgin, 14 Wright 539, distinguished.</p>

<p>1. No one is held to have waived a right unless it appear that he knew his rights and intended a waiver.</p> <p>2. After demand and refusal of payment of a bank note, interest is incident to the contract between the bank and note-holder as in case of any other ascertained demand.</p> <p>3. The notes of the insolvent Bank of Pennsylvania are entitled to interest from the time of demand out of-the assets in preference to depositors, although under prior distributions the principal of the notes had been paid in full.</p> <p>4. Interest under the Acts of Assembly is as much a part of the note-holders' claim as the note itself.</p>

<p>1. Compelling an election under inconsistent provisions in a will is not exclusively within the jurisdiction of the Orphans' Court.</p> <p>2. Consent cannot give jurisdiction.</p> <p>3. The jurisdiction of the Orphans’ Court within its appointed orbit is exclusive.</p> <p>4. The jurisdiction of the Orphans’ Court is not exclusive in every ease which may incidentally bear upon the settlement of a decedent's estate.</p> <p>5. A testator gave legacies to his daughters which absorbed the bulk of his estate in Pennsylvania, and by the same will gave his real estate in New Jersev to his sons. The will was not so executed as to pass real estate in New Jersey. In a proceeding to compel the daughters to elect, Held, that it fell within the authority belonging to a court of equity in cases of trust.</p> <p>6. The legal title being in the daughters as heirs, if a case of election, equity would hold them bound as trustees to compensate the disappointed devisees.</p> <p>7. The decree of a court of equity would be conclusive upon the daughters in a settlement of the account of the executors.</p> <p>8. In construing a bequest of personalty within its jurisdiction a court of Pennsylvania may read a whole will, although invalid as to land in another state.</p> <p>9. The circumstances and the will here presented a case of election.</p> <p>10. Election is grounded on the intention of the testator, and resort can be had to all parts of the will to ascertain it.</p> <p>11. Equitable election> rests on the principle of compensation as well as forfeiture.</p>

This was a certificate from Nisi Prius: No. 28, to January Term 1869 : In Equity. The bill was by Harriet S. Dodson against George B. W. Ball.

250, to January Term 1869. The appeal in this case was by Ellen Keene Mitchell and Henry. E. Keene, in the matter of the estate of John Lukens, deceased. The executrix, &c., of Sarah Lukens Keene, deceased, who had been administratrix c. t. a. of John Lukens, deceased, filed in the Orphans’ Court of Philadelphia an account of the administration by the said Sarah Lukens Keene, of the estate of the said John Lukens.

264, to January Term 1869, in the estate of Sarah L. Keene, deceased. On the 29th of June 1867, Lawrence St. Clair Keene and Edward J. Keene petitioned the Orphans’ Court for a citation to Ellen K. Mitchell, &c., executrix, &c., of Sarah L. Keene, deceased, requiring her to settle an account of her administration. The answer averred that the petitioners had no interest under the will of the testatrix.

234, to January Term 1869. This was an amicable action of ejectment and case stated in which G-uadalupe C. Kennedy, widow of James Lenox Kennedy, deceased, and Louisa Kennedy and others his children, wore plaintiffs and S. B. Wylie Mitchell and Ellen Keene Mitchell his wife, were defendants. The premises in controversy are a lot of ground and three-story brick dwelling-house thereon at the north-west corner of Chestnut and Tenth streets, Philadelphia.