Volume 61 — Pennsylvania State Reports

248, to January Term 1868, in the estate of John McCandless, deceased. The facts of the case as presented in the appellant’s paper-book are seen in the following extract from the report of the auditor:— “ Mr. Crest claimed on behalf of Samuel Simes, a creditor, $354.76, with interest from January 8th 1855. The amount was alleged to be owing on a due-bill which had been lost. It is claimed that this debt is barred by the Statute of Limitations.

This was a certificate from' Nisi Prius, No. 60, to January Term 1868. In Equity. The proceeding was a bill filed February 27th 1868, by Joseph Wagner Jermon and Sarah Ann his wife in her right against Edward Lyon, Thomas Lyon and George W. Taylor, trading as Lyon & Taylor and Peter Lyle, sheriff.

156, to January Term 1869. This case in the court below was an attachment-execution on a judgment recovered by Edward Evans against Owen Evans. Charles Hamrick and B. W. Cole were garnishees. On the 13th of April 1868 a case stated embodying the following facts, was filed between the plaintiff in the execution and the garnishees.

<p>1. A fishery is an incorporeal easement on the land of the riparian owner, like a way or common.</p> <p>2. The right of fishery exists only during the fishing season.</p> <p>3. A fishery on the Delaware was within the limits of the port of Philadelphia. The riparian owner under a license from the wardens built a pier on their land which interrupted the fishery. Held, that this was damnum absque injurid and the owners of the fishery could not recover from the riparian owner.</p> <p>4. The bed and channel of the Delaware ad medium aquae filum belong respectively to Pennsylvania and New Jersey.</p> <p>5. The title of the riparian owner extends to low-water mark, not absolutely in tidal streams, but subject to the public right of passage when the tide is high.</p> <p>6. The riparian owner has no right to make any erection between high and low water mark without express authority from the state.</p> <p>7. The state can grant authority to make such erection either to the riparian owner or to others so long as the riparian owner is not thereby deprived of access to the river and use of it as a public highway.</p> <p>8. Under this restriction the right of the Commonwealth to make any erections in the river for the improvement of its use as a public highway or to promote in any way the business and prosperity of the people is undoubted and unlimited.</p> <p>9. Those who have shore or fishery rights took and hold them subject to this necessary transcendental power.</p> <p>10. The constitutional provision as to compensation for private property taken for public use does not apply to mere consequential damages.</p> <p>11. It is no objection to the license by the state to make erections in the river, that it was obtained on application of the owner for his advantage to increase the value of his land.</p> <p>12. This is always the case in regard to such works whether projected by individuals or corporations.</p> <p>13. An erection thus made by a riparian owner Is not part of his domain absolutely. Beyond low-water mark the title of the structure follows that of the bed on which it is built, and remains in the state subject to the public right of passage and access to the river and between high and low water.</p> <p>14. There is no covenant or duty which the riparian owner owes to his grantees not to avail himself of a privilege to make such erections or to .accept such a license from the state.</p> <p>15. Independently of the Acts of February 8th 1804 and February 23d 1809, there is no exclusive right of fishery by the riparian owner opposite his shore in any navigable river,</p> <p>16. An arm of the sea extends as far into the interior of a country as the water of rivers is propelled backward by the tide.</p> <p>17. In Pennsylvania there can be no prescription of a 'several and exclusive fishery.</p> <p>18. Prescription cannot have a legal origin where no grant could have been made to support it. ■</p> <p>19. The respective grants to the proprietaries of Pennsylvania and New Jersey were to low-water mark, neither ever owned the bed of the Delaware l-iver.</p> <p>20. The bed of the river and the river itself passed by force of the revolution, &e., to the two states, to be owned and enjoyed on the same principle as a navigable river flowing between two conterminous nations.</p> <p>21. These states may by compact and laws regulate and restrain the common right of fishing to any part of the shore.</p> <p>22. A person can establish no exclusive right of fishery on the Delaware without proving a compliance with the Acts of 1804 and 1809.</p> <p>23. A fishing-place may be granted separate from the soil..</p> <p>24. There may be a grant of an easement in gross personal to the grantee, but it cannot be assigned or transmitted by descent; nor can the owner of the right take another person into company with him.</p> <p>25. If the easement consists in a right of profit a prendre, if granted to one in gross, it is treated as an estate and may therefore be for life or inheritance.</p> <p>26. If the right be an easement proper, as a right of way and is granted in gross, it is a 'mere personal interest and not inheritable.</p> <p>27. A right to take fish is a profit a prendre in another’s soil, and requires for its use exclusive occupancy during the period of fishing, and implies the right to fix stakes, &c., for drawing the seine and the occupancy of the bank at high tide as well as the space between high and low water mark.</p> <p>28. The grantee of a fishery has the exclusive possession during his fishing time, and the grantor at all other times and for all purposes.</p> <p>29. Land or an interest in land cannot be prescribed for.</p> <p>30. A presumption of knowledge and acquiescence of the owner that the exercise is under a claim of a right, is required in cases of prescription.</p> <p>31. It is not a principle without exception that whatever incorporeal hereditament may be granted, may also be acquired by long and uninterrupted user.</p> <p>32. A right claimed by prescription must be such as must reasonably be presumed to have been granted, not one whose exercise would destroy the usufruct of the grantor’s property.</p>

<p>1. It is only when a dispute as to a matter of fact regarding the validity of a will arises in the Register’s Court, that an issue is to he awarded.</p> <p>2. The register is empowered, hut not required in every case, to send every contested fact to a trial at law.</p>

<p>1. A bequest was “ to M. of the proceeds of bank stock during her life, after her decease to be sold and the proceeds equally divided between T. and &.* or their heirs, unless the said T. and G. should prefer it to remain in stock for their use, which they may do should they prefer it.” Held, that the bequest vested in T. and G. at the testator’s death, and an assignment by them before the death of M. passed the title to the stock.</p> <p>2. Patterson v. Hawthorne, 12 S. & R. 112; King v. King, 1 W. & S. 205; Reed v. Buckley, 5 Id. 517; Manderson v. Lukens, 11 Harris 31, considered and approved.</p> <p>3. Where the enjoyment of an entire fund is given in fractional parts at successive periods which must eventually arrive, the distinction between time annexed to payment and time annexed to gift is unimportant, all j;he interests vest together.</p>

<p>Appeal from the Orphans’ Court of Philadelphia, in the Estate of Henry M. Crawford, deceased: No. 67, to January Term 1869.</p> <p>The question in this case arose upon the distribution of the personal estate pf Henry M. Crawford, who died intestate without issue, leaving a widow Sarah Crawford and twenty-five nephews and nieces; there were no creditors, claimants on the fund. The personal estate for distribution amounted to $128,750. The distribution was referred to George M. Connaroe, Esq., as auditor.</p> <p>The only disputed claim was that of Sarah Crawford, the widow, for $3000 principal and $702.39 interest, with which she was credited on the hooks of the decedent. These hooks showed an account with Mrs. Crawford commencing December 6th 1846, when she was credited by “ her share of the personal estate of Ephraim Hillman, deceased, $314.90,” which was afterwards reduced by payments to her to $300, on this she was credited with interest from time to time, until in 1864 the balance in her favor was $638.75 On January 12th of that year there was a credit in her account, “By Cash ...... 100” and on May 9th, “By Cash ..... 3000”</p> <p>making 3738.75</p> <p>This sum was'carried into the next year’s account as a balance to her credit, and she was credited with interest on the aggregate sum. The last entry on this account in the decedent’s day-book, was:</p> <p>“ 1866, Jan. 22d. Interest account Dr. to Sarah Crawford,</p> <p>For 1 y’rs interest on $3,936.10 to Jan’y 1, 1866. 236.16.”</p> <p>The auditor reported:— * * That on May 9th 1864, Mrs. Sarah Crawford was credited (by the express direction of her husband, as testified by his bookkeeper) with the sum of three thousand dollars, as cash received from her. After that date interest, by his direction, was annually credited to her .on his books, on the amount appearing to her credit which embraced the $3000 now in dispute, and the moneys actually received in cash by Mr. Crawford from his wife, which have been already allowed by the auditor with interest.</p> <p>“ In the balance sheets made up for him annually by his bookkeeper, Mrs. Crawford appeared as a creditor.</p> <p>“ On behalf of certain of the distributees, Mrs. Crawford herself was called and examined as a witness, and her testimony disclosed the following facts: That Mr. Crawford, a few years since, on purchasing a house on Olive street, told his wife that he would have the deeds for it made out in her name. Mrs. Crawford replied that she did not want the trouble of a house. There was nothing then said about the house after that, and one day Mr. Crawford came in and said to his wife, “ I have added $3000 to your little money, and after awhile I am going to give you $3000 more.” He did not hand her the money at the time, nor did- she at any time afterwards receive any portion of the principal or interest of the money standing to her credit in the account he kept with her. The entry of the $3000 on Mr. Crawford’s books was never seen by his wife until after his death.”</p> <p>The auditor concludes his report:—</p> <p>“ If this acknowledgment had been under seal, the effect might have been quite different. In the language of Holley v. Adams, before cited, the fact that this intended gift ‘ existed in the nature of a claim against the estate determines the character of it’ and the necessity of legal proof, and the auditor is compelled to treat it as a contract void for want of consideration. ’ The claim must therefore be disallowed.”</p> <p>Mrs. Crawford excepted to the report. The Orphans’ Court dismissed the exceptions and confirmed the report. She appealed and assigned for error the confirmation of the report.</p>

<p>1. Where an injury happens to a servant in the course of his employment, the master is responsible if it was caused by his negligence.</p> <p>2. If an injury to a servant is the result of the hazardous nature of the employment, without any fault of the master, he is not liable, but if his negligence was the direct and proximate cause of the injury, he is responsible whether the business was hazardous or not.</p> <p>3. If the misconduct of the servant or his omission of a duty defined or prescribed by law contributed to his injury there would be no question for the jury.</p> <p>4. Negligence is always a question for the jury when there is any doubt as to the facts or the inferences to be drawn from them.</p>

<p>1. Wootten, having failed, sold by bill of sale and delivered his stock, &e., to Lockhart in consideration of certain claims held against him by Lock-hart and a part of his other creditors, who had previously made an arrangement amongst themselves to divide the proceeds pro rat&. The jury found that the transaction was boná fide. Held, that the bill was not an assignment for creditors which required to be recorded.</p> <p>2. The fact that Lockhart was acting for the other creditors as well as for himself did not convert the sale into an assignment for creditors.</p> <p>3. If there was a trust between Lockhart and creditors, it was not created by Wootten,</p> <p>4. The fact that some of the claims were not due did not affect the validity of the sale.</p>

<p>1. Burroughs, treasurer of a corporation, drew a note in blank and obtained the endorsement of Beilis, “ Pres’t,” for a debt due by the company to Sharpe, Beilis refusing to endorse as an individual. The note was afterwards filled up with Beilis’s name as payee, and the amount and “Pres’t” erased by Burroughs. It was then handed to Sharpe, who had no knowledge of the erasure, but knew of Beilis’s connection with the company, in payment for the debt due by the company and so receipted for. Held, under the circumstances, that Beilis was not individually liable.</p> <p>2. If Sharpe had been a stranger to Beilis and to his connection with the company, “ Pres’t” after his name, in absence of anything on the face of the note to indicate his possession of it in a representative character would not be a restrictive endorsement.</p> <p>S. In such case when an agent does not mean to be personally bound by a. writing, he must disclose the name of his principal whom he intends to bind.</p> <p>4. Where the affix was not under such circumstances as to make it restrictive and to bind the agent, its erasure would be immaterial and would not affect the instrument.</p> <p>5. If Sharpe knew the official relation of Beilis, the erasure was material, as it changed his obligation from a representative to a personal undertaking.</p> <p>6. Sharpe was not a holder for value as against Beilis, the note having been given for an antecedent debt without surrender of any security.</p> <p>7. If Sharpe knew that Beilis was president of the company, the note was the company’s and Beilis could not be sued upon it.</p>

<p>Appeal from tbe decree of the Supreme Court at Nisi Prius: In Equity: No. 39, to January Term 1869.</p> <p>Mary Donohue filed her bill in December 1868 against Patrick McNichol, setting out — 1. That Mary Donohue, widow of Edward Donohue, died about March 1864, seised in fee of certain real estate (describing it) in Philadelphia, having made her will (a copy of which was annexed to the bill), dated March 3d 1864, and' duly proved after her death.</p> <p>2. That John Donohue, son of the testatrix, and named in the will, married the plaintiff, August 26th 1865, and died about January 1868 intestate, without having had any issue.</p> <p>3. That the testatrix left surviving her at her death eight children, now living, of her deceased- brother James, and two children, now living, of her deceased brother Hugh.</p> <p>4. That the defendant has possession of title-papers belonging to said real estate, and refuses to exhibit the same to the plaintiff, so that she cannot more fully describe said real estate, refuses to convey to her for life one-half or any part of the real estate, and denies her right thereto.</p> <p>5. That the defendant has received income from said real estate accruing since the death of John Donohue, and refuses to account or pay over to the plaintiff any part thereof. She prayed for a discovery; that defendant be decreed to exhibit the title-papers to the plaintiff, convey her one-half part of the real estate for life, account for and pay over to her one-half the income accrued since John Donohue’s death; for further relief, &c.</p> <p>The will was as follows:—</p> <p>* * “ Item: It is my will, and I do hereby give, devise and bequeath unto my executor, hereinafter named, all my estate, real, personal and mixed, to have and to hold the same in trust for the following uses and purposes, to wit: Out of my personal estate and the net income of my real estate to pay and give to my son John such sum or sums of money as my said executor may deem proper, always allowing, however, my said son John a sufficient sum to support him respectably; and if my said son John becomes a sober, industrious man, it is my will and desire that he should receive the rents, issues and profits of all my real estate during his natural life, and upon the death of my said son John leaving lawful issue, upon the further trust, to pay to such issue the net income of my said real estate, and such part of my personal estate as my said executor may deem proper, and after the death of such lawful issue of my said son John, then in trust for the use, benefit and behoof of my lawful heirs and assigns for ever.</p> <p>“ And my said executor after the death of such lawful issue of my said son John, is to give up and convey over unto my said lawful heirs all my real and personal estate, and in the event of the death of my said son John without lawful issue, that my said executor is to hold my said real and personal estate (if any) for the use, benefit and behoof of my lawful heirs, their heirs and assigns for ever.</p> <p>“ And upon the death of my said son John, as aforesaid, without lawful issue, my said executor is to give up and convey all my real and personal estate unto my said lawful heirs, their heirs and assigns for ever.</p> <p>“ It is further my will, and I desire to have it expressly understood, that none of my real estate is to be sold or mortgaged during the life of my said son John or his lawful issue. And lastly, I do appoint my friend Patrick MoNichol the executor of this my last will and testament.”</p> <p>The defendant filed a demurrer to the whole bill, setting forth as cause of demurrer, that “the plaintiff has shown therein no right or title to the real estate, title-papers and income therein demanded;” and by agreement a pro forma decree was entered that the said demurrer be allowed, and plaintiff’s bill be dismissed.</p> <p>On appeal to the Supreme Court this decree was assigned for error.</p>

<p>1. The Pennsylvania Railroad Company gave a receipt to Forsyth for oil to be delivered to “ Leech at the company’s freight station, Philadelphia appended to the receipt was, “ Rate to Red Hook, 65 cents. * * This oil is carried only on open cars and entirely at the owner’s risk from fire and leakage while in possession of the railroad company or carriers, while standing or in transit.” The freight was to be paid at Red Hook. Mentioning Red Hook as the ultimate destination and payment of freight there, was at most no more than an engagement to forward to that place.</p> <p>2. The limitations in the contract as to the liabilities of the Pennsylvania Railroad apply only to that portion of the route on which they act as carriers, not to that with reference to which they are forwarders.</p> <p>3. The exemption from liability as to oil affected only the Pennsylvania Railroad.</p> <p>4. The Camden and Amboy Railroad Company gave a receipt to “ Leech, agent of Pennsylvania Railroad,” for the oil to be transported to New York; the oil was destroyed by fire between Philadelphia and Red Hook. Held, that the Camden and Amboy Railroad were liable, there being no other contract with them than their receipt, which did not limit their common-law liability as carriers.</p>

<p>1. A tenant who erects fixtures for the benefit of his trade or business, may remove them from the demised premises within his term.</p> <p>2. Where a tenant has a right to sever and retain fixtures, they are liable to be seized and sold in execution and severed by the purchaser.</p> <p>3. A tenant covenanted to make additions, &c., “ of a permanent character," to the value of $1500, “ and to introduce machinery necessary to his business — the permanent additions, &c., to remain on the property at the expiration of this lease and to belong to the owners of said premises." The machinery, &c., was subject to sale under an execution against the tenant and to removal by the purchaser during the term.</p> <p>4. A boiler and engine put up by a tenant are movable fixtures.</p>

<p>1. A policy showed an insurance -against fire on machinery, consisting of cards, pickers, &c., “ contained in the first story of a four-story and basement brick building,” &c. The pickers were in a one-story building, the floor on a level with the first story, built with bricks, joining into the main building, entering from it through a frame building adjoining, and then through a large iron door, “ as if going from the house into the kitchen.” There were no pickers except in the one-story room, Held, that the picker-room was part of the first story in which the goods were insured.</p> <p>2. The insurance agent who effected the insurance knew the location of the pickers, and there was no misrepresentation to him. Held, that the company were bound by his acts.</p> <p>3. The primary,object was to insure the property described; its precise location was subordinate, and in the absence of misrepresentation as to location the presumption is that the parties treated that as of less importance.</p> <p>4. Declarations of the principal agent of the company to the agent who effected the insurance that the company would not insure the pickers would have no effect against the written policy.</p>

<p>1. A judgment entered by a prothonotary under a power contained in the instrument, is a judicial act, and has the same effect as a judgment confessed by attorney or given in open court. The entry of an amicable action and confession of judgment has the same effect.</p> <p>2. An amicable action and confession of judgment between the plaintiff and a church, signed by the rector and churchwarden, with the corporate seal, was filed in the prothonotary’s office; the judgment entered thereon was not void although the persons signing may not have had authority.</p> <p>3. It is the owner only of the estate taken in execution who can waive the inquisition.</p> <p>4. A sale on fi. fa. without a waiver of inquisition is without authority and void, and is not confirmed by the acknowledgment of the sheriff’s deed and distribution of the proceeds.</p> <p>5. Spragg v. Shriver, 1 Casey 282, considered and explained.</p> <p>6. A venditioni exponas is in legal contemplation issued by the court; is its express command to sell, under its seal and cannot be disobeyed by the sheriff.</p> <p>7. The acknowledgment of a sheriff’s deed cures irregularities in process or proceedings, but not want of authority to sell.</p> <p>8. On the trial of an ejectment against the vendee of a purchaser at sheriff’s sale on a fi. fa. under a judgment confessed and waiver of an inquisition, evidence offered by the plaintiff to show that no waiver was made or authorized by the defendant in the execution, and that a paper filed containing the waiver was a fraud, was rejected by the court below. Held to be error.</p> <p>9. That the sale was made on and not before the return-day of the writ did not render it void.</p> <p>10. Under Act of April 16th 1845, § 2 (Execution), the practice has been to sell on any writ of fi. fa., &c., at any time not later than Saturday of the first week of the term.</p>

These were two writs of certiorari to the Court of Quarter Sessions of Philadelphia: No. 31, to July Term 1868, and No. 349, to January Term 1869, at the instance of Isaac C. Worrell. The first writ removed proceedings as follows:— Transcript from the docket of Alderman Thomas T. Holme. “ Directors, Poor of Oxford and' Lower Dublin Townships, v. Isaac O. Worrell. • June Term 1867. No. 223. Warrant issued on the 11th day of May 1867, on oath of Phnma S. Worrell.

<p>1. Generally a contract is the law of the transaction and is not to be affected by anything but its terms, but there are cases in which its execution may be curtailed by custom.</p> <p>2. Custom, as a general rule, may not be heard to affect the terms of a statute nor a contract to the extent of enlarging or abridging the force of it, but may interpret either.</p> <p>3. A policy of life insurance in which the premiums were payable on specified days, was issued to plaintiff, with a clause of forfeiture in case of nonpayment at the day. The policy was forfeited for such non-payment. In an action to recover the paid premiums evidence was admissible to show that it was the custom amongst insurance companies to receive premiums within thirty days after due, if the assured was in his usual health.</p> <p>4. If it was the practice of the company to give notice before each premium was due and omitted on the occasion for which a policy was forfeited, or if the company so dealt with the assured as to induce a belief that the clause of forfeiture would not be insisted on, &c., and thus put the assured off his guard, the company cannot take advantage of a default which they encouraged.</p> <p>5. A company may waive defective compliance with the rules of insurance.</p> <p>6. Forfeitures are odious and are enforced only where there is the clearest evidence that that was what was meant by the stipulations of the parties.</p> <p>7. There must be no cast of management or trickery to entrap a party into a forfeiture.</p>

15, to July Term 1868. The question in this appeal was upon the construction of a clause in the will of John Crean, deceased, who died in April 1834. His will was proved on the 22d day of that month. The clause is as follows:— “ Item.

95, to July Term 1868. This was a bill filed July 19th 1864, by Malvina A. King against Gottleib Yollmer.

140, to July Term 1868. This was an action of assumpsit, commenced April 27th 1866, by Maria Wirth against Cordelia Barwell. The declaration contained the common counts, and the defendant called for a bill of particulars; the plaintiff furnished a bill of goods sold and delivered. The pleas were non assumpsit, and non assumpsit infra sex annos. The replication was assumpsit infra sex annos.

<p>Appeal from the decree of the Court of Common Pleas of Philadelphia county: In Equity: No. 139, to January Term 1869. The appeal was by the Pennsylvania Company for Insurance on Lives, &c.</p> <p>James Stokes, by deed of trust dated the 9th day of August 1823, duly recorded at Philadelphia, conveyed to Caleb P. Wayne and Charles Biddle certain premises situate on the south side of Market street, Philadelphia (Nos. 102 and 104), in trust to permit his sons, Charles M. and Wyndham H. Stokes, to collect the rents, each of a moiety of the same during their respective lifetimes ; and “ from and immediately after the decease of the said Charles M. Stokes, then they, the said Caleb P. Wayne and Charles Biddle, and the survivor of them, and the heirs of such survivor, shall stand and be seised of one full, equal and undivided moiety or half part of and in all and singular the premises aforesaid, with the appertenances, in trust to and for the only proper use and behoof of all and every the children of the said Charles M. Stokes, if he shall marry and have any, which shall be living at his death, and the child or children of any such child or children as shall have been married and have died, leaving lawful issue, and their heirs and assigns for ever, part and share alike as tenants in common.”</p> <p>A like limitation over, upon the decease of Wyndham H. Stokes, as to his moiety, was made. A power of subsequent revocation, reserved to James Stokes by the deed, was never exercised.</p> <p>Charles M. Stokes died in March 1850, seised and possessed of certain real and personal estate, including certain premises devised to him by his father, immediately east of those conveyed in trust, being at the south-west corner of Front and Market streets, considerably exceeding in value after payment of all debts and expenses that of the moiety of the above-described premises. By his will, proved the 1st of April 1850, he appointed Wyndham H. Stokes and Edward Clark Wayne his executors and trustees, and empowered them to sell all his real estate. This they did. By this will he, amongst other things, provided as follows:—</p> <p>“ I give and devise unto my brother Wyndham H. Stokes, and my nephew Edward Clark Wayne, and to their heirs and assigns for ever, all the rest and residue whatsoever of my estate, real and personal, in trust nevertheless to make leases, to receive the rents, &c., and to pay, apply and dispose of the said net rents for the maintenance and education of my seven children hereinafter named, share and share alike, taking into consideration in such division the amount which some of my children are entitled to receive from certain real estate in High street, conveyed by deed of James Stokes to Caleb P. Wayne and Charles Biddle in trust, so that, including the sum derived therefrom, the shares of each of my said children shall be equal.”</p> <p>“ I will and direct that so soon as my youngest surviving child shall reach the age of twenty-one years, or at any sooner time at their discretion, that the said trustees shall sell and dispose of all my real and personal estate (including the property at the southwest corner of Market and Front streets — this done in execution of the power contained in my father’s will), at public or private sale, and make, execute and deliver sufficient deed or deeds to the purchaser or purchasers thereof, and, without liability on their part, to see to the application of the purchase-money; and I will and direct that the proceeds thereof, together with the proceeds arising from the sale of the property described in the said deed of trust, shall be by the said trustees divided into seven parts or shares, so that the shares of Elizabeth and Mary shall each be in amount equal to the share of either of my other children, inclusive of the sum received by them under the deed of trust, one share thereof to be invested and held by the said trustees for the use and benefit of each of my said children above named, so that the net income of one share thereof shall be paid by the said trustees to each of my said children for and during the term of their respective lives, and for the sole and separate use of my daughters, so that neither the principal nor the income thereof shall be in anywise liable to anticipation, nor for any debts contracted by any of my said children, or the husbands of any of my said daughters; and from and immediately after the decease of any of my said children, leaving a child or children him or her surviving, I give and devise absolutely and in fee to the said child or children so surviving, share and share alike; if more than one, the share or sum to which his or her parent was entitled; but if any of my said children should die without leaving children surviving him or her, I give and devise the share of such child or children in trust to the trustees above named, to he equally divided among my surviving children, upon the same trusts as are hereinbefore provided.”</p> <p>Charles M. Stokes left seven children surviving him, all named in his will, viz., Mary and Elizabeth, born before marriage, and Sallie M., James, Wyndham H., Charles M., and Maria S., horn thereafter. All are upwards of twenty-one years of age. In June 1867, they agreed in confirming the accounts of his executors and trustees, exhibiting the payments from time to time made to and for them subsequently to his decease, by virtue of his will, though they refused to recognise any right in the latter, as such trustees, to collect the rent of the premises in question. They also, with full knowledge of their rights, and of all the provisions of his will, and of the said deed of trust by James Stokes, and of all the other circumstances of the case, accepted the provisions in their favor made by their said father’s will, so far as the same were applicable to the property really owned by him.</p> <p>At their own request the said Wyndham II. Stokes and Edward O. Wayne were on the 29th day of June 1867, by the Orphans’ Court of Philadelphia discharged from their duties as trustees under the said will, and the appellants were appointed in their place, and received the sum of $22,000, ascertained to be in the hands of the former trustees by report of auditor thereon, confirmed by said court on the 21st day of June 1867.</p> <p>Before the bringing of this suit, the corporation appellants brought a suit in equity in the Common Pleas of Philadelphia against the seven children of Charles M. Stokes, including the-five named as appellants, praying that the latter should account for all rents collected, and that an injunction might issue to restrain them from collecting rents, selling the property, &c.</p> <p>The present bill was filed by Wyndham PI. Stokes and his children, to compel a partition of the premises conveyed by the deed of trust of James Stokes. The appellants contended that the will of Charles M. Stokes put five of his residuary legatees, the children entitled under the deed of trust, to an election to surrender their interest under said deed, or the bequests of their father’s will, and that by their acceptance of the last they were estopped from claiming the first. The court below was of opinion that the case was not one of election, and so decreed.</p> <p>The following opinion was delivered in the first suit:—</p> <p>Brewster, J. — This case has been argued on bill and answer. The only question presented by these pleadings is, whether five of the defendants have lost their title to a valuable property by electing to accept under their father’s will.</p> <p>The property in question belonged to the grandfather of these defendants. By his deed of trust, the estate passed to a son for life, and the remainder went to five of the seven defendants, who are the grandchildren of the original grantor. The tenant for lift having no power of appointment, still undertook, as it is said, to dispose of the fee, and to direct that the proceeds thereof, with the proceeds of other property, over which he had the power of disposition, should be united in a trust to which the plaintiffs have succeeded. This joint fund was to be so divided that each of the seven children was to have an equal portion. The decision of this case cannot, therefore, add to or diminish from any share. Giving the whole of the grandfather’s estate to the five entitled to it under his deed, would simply entitle the remaining children to a larger share of the paternal property, for, divide the two funds as we may, the shares must, according to the will, be equal.</p> <p>We are, however, compelled to decide the question presented, although' we may not perceive the utility of its presentation. The bill charges that the five children referred to, “ with full knowledge of their rights, of all the provisions of the will and of the deed of trust, and of all the other circumstances of the case, accepted the provisions in their favor, made by their father’s said will, so far as the same were applicable to the property really owned by him.”</p> <p>This broad averment is not in terms denied in the answer, and the point as already stated is, whether this election has thrown into the lap of the trust the property over which the testator had •no control for that or for any purpose.</p> <p>It is beyond all doubt that a party entitled to an estate may, by accepting a devise under a will which attempts to dispose of property belonging to the devisee, be barred of a clear right. Such a case is the very illustration given in the books:</p> <p>“When a testator gives to A. certain property, real or personal, and in the same will gives a third party certain property belonging to A., in this case A. must elect between the two, if he accepts the legacy or devise to himself, he must confirm and carry out the gift of his own property to the third party:” 1 Leading Cas. in Eq. 402.</p> <p>The reason of this, if reason were needed, is aptly stated by Gaston, J., in Melchor v. Burger, 1 Devereux & Battle’s Eq. 634.</p> <p>He says, the intention of the testator “ is apparent that both dispositions shall take effect, and the conscience of the donee is affected by the condition thus implied, that he shall not defraud the design of the donor, by accepting the benefit and disclaiming the burthen giving effect to the dispositions in favor, and defeating that to his prejudice. The donee is therefore put to his election ‘ either to take the thing given, and confirm the will, or, retaining what is his, independently of the will, to surrender to the disappointed devisees or legatees so much of what the testator has given him as will compensate them for the disappointment.’ ”</p> <p>This has always been the principle acted upon since Noys v. Mordaunt, 2 Vern. 581.</p> <p>But it is also clear that “ the construction upon which the party is put to an election, must be clear upon the face of the will. A party will never be put to an election upon a doubtful construction.” See the cases cited in the full and. learned Notes to Noys v. Mordaunt, 1 Lead. Cas. in Eq. 401 (223).</p> <p>A careful consideration of the will before us has failed to satisfy us that this is the “ clear” case for an election required by the authorities. The testator devises'to trustees all the rest of his estate to receive the rents and dispose of the net income for the maintenance of his seven children, share and share alike, “ taking into consideration in such division the amount which some of his children are entitled to receive from certain real estate,” referring to their property. Thus far it will be seen that there is no attempt to devise away their estate. He, on the contrary, speaks of This estate, disposes of it alone, and expressly recognises the claim of his children to the other property.</p> <p>Then follows the power to sell all Ms estate and the direction that the proceeds thereof, “together with the proceeds arising from the sale of'the property described in the said deed of trust, shall be by the said trustees divided into ‘seven parts.’ ”</p> <p>Upon this last clause it might perhaps well be argued that trustees cannot divide what they do not possess; and that they can never hold the proceeds of the last-mentioned property unless they have the power to sell it. It is hard to answer such a proposition, but the will itself gives no power of sale over this property, — does not undertake to devise it, and refers to it only to call it the estate of others. A transposition of a few words without a single alteration, would leave the whole perfectly intelligible. If the testator had said that the proceeds of Ms property “ shall be by the said trustees divided into seven parts, so that, with the proceeds arising from the sale of the property described in the said deed of trust, the shares shall be equal,” every word would have been retained, and all parts of the instrument would have been consistent with each other. We do not deem it necessary to elaborate this view further, sufficient has been said to demonstrate that the supposed intention of this testator to put these parties to an election has not been, in the language of Mr. Justice Kennedy in City v. Davis, 1 Whart. 502, “ either clearly expressed or necessarily implied.”</p> <p>“And no man ought under pretence of this rule to be spelt or conjectured out of his property;” Blake v. Bunbury, 1 Ves. Jr. 524.</p> <p>Whilst holding to these views favoring the defendants, we are still of opinion that the complainants in their responsible position of trustees, have a right to hear from these five devisees what their determination is. Are they willing that the whole property shall be administered under the trust, or do they prefer to take to themselves their own estate and to allow the other children to be compensated out of the remainder ?</p> <p>They must come to some formal decision of this question, and announce it in such shape that the trustees shall be freed from all future embarrassments in the division of the income. The complainants have leave to submit such a decree.</p> <p>This agreement of the five devisees was filed January 15th 1868. “ The undersigned, Sallie M. Stokes, James Stokes, Wyndham H. Stokes, Charles M. Stokes, and Maria Stokes, the defendants named in the bill filed in this case, in whom the title to the premises on Market street near Front street, more particularly described in said bill, was limited, and became vested upon the death of Charles M. Stokes, according to the provisions of a certain deed of trust therein mentioned, come into court, and hereby agree and consent that they may be enjoined from claiming from the trust estate in the hands of complainants, under the will of said Charles M. Stokes, any greater share of the interest,- income and principal thereof, than shall suffice, after taking into view all the estates derived under said deed and will, and the rents, profits and income thereof, and the application of the rents or proceeds of the real estate derived under said will, to make ourselves and our respective children equal to the said defendants, Elizabeth S. Green and Mary Stokes and their children.</p> <p>“ And we further agree, that if we shall obtain more than an equal share or shares from the property derived under the said deed of trust, we will respectively abate proportionably in our receipts of income and principal from the estate held in trust under said will.</p> <p>“ And we further agree to render half-yearly an account under oath to the said complainants, of the rents received and disbursements made on account of said Market street property, and to produce the receipts of the said Elizabeth S. Green and Mary Stokes, to show that they have received their equal shares of the said rents, before we shall receive our equal shares of the income of said trust property.</p> <p>“ And we also consent that we may be enjoined from making any sale of the said Market street property held under the said deed, without notice to the complainants, and the approval of this court, hereby electing to take to ourselves our own estate in the said premises conferred upon us by our grandfather, James Stokes, in his deed of trust in the bill recited; and that our said eldest two sisters be respectively made in all respects equal unto us respectively, out of the property held in trust for us, and that the said court shall make any future decree in this case, tp carry into effect this agreement, whenever sale shall be made of the Market street property, or other occasion.”</p> <p>The Court of Common Pleas, on the 18th of January 1868, made the following decree:—</p> <p>“ This case having been heard on bill and answer, and agreement filed of the said defendants Sallie M., James, Wyndham II., Charles M. and Maria S. Stokes, it is ordered and decreed the said last named five defendants are enjoined from claiming from the trust estate in the hands of said complainants under the will of Charles M. Stokes, any greater share of the interest, income and principal thereof, than shall suffice, after taking into view all the estates derived under said deed in the bill mentioned, and said will, and the rents, profits and income thereof, and the application of the rents or proceeds of said real estate derived under said will, to make the said Sallie M., James; Wyndham II., Charles M. and Maria S. Stokes, and their respective children, equal to the said Mary and Elizabeth and their children, so that if the former shall obtain more than an equal share or shares from the property derived under the said deed, they shall respectively abate proportionably in their receipt of income and principal from the estate held in trust under said will; and they shall produce half-yearly the receipts of the said Mary and Elizabeth to the said complainants, to show that they have received their equal shares of the rents of said Market street property, and account for said rents to complainants before receiving an equal share of the income of said trust property, and that the said defendants be enjoined from making any sale of the said Market street property held under said deed, without notice to the complainants, and the approval of this court. \.</p> <p>“ And upon such sale being made as aforesaid, the amount shall be reported to this court for the further action and decree of this court, as to the further apportionment and administration of said trust fund by the said complainants. And at any time hereafter any party to this suit and especially upon the death of either of the .defendants, the complainants shall have leave to apply to the court- for such further order and decree as to the court may seem proper in the premises.”</p> <p>The final decree was as follows:—</p> <p>“And now, October. 10th 1868, this cause coming on to be heard on bill and answers, and it appearing that the complainants are entitled to have a partition of the premises in Market street, Nos. 102 and 104, referred to and described in their bill of complaint, and it appearing that the said premises are capable of being divided without injury to the whole or to either property, into two parts nearly equal in size and value, and that complainants having conceded to the defendants, Sallie M. James, Wyndham H., Jr., Charles M. and Maria S. Stokes, their choice of the two messuages and lots; and, that the said defendants have chosen the westernmost of said premises (No. 104 Market street), it is, therefore, decreed that a partition be accordingly made of said two properties between the complainants and the said defendants as prayed for in the said bill of complaint, and -for making such partition, it is further decreed that the said defendants Sallie M. James, Wyndham H., Jr., Charles M. and Maria S. Stokes shall execute a conveyance of the premises No. 102 Market street, and deliver the same to the complainants so that the same shall be held and enjoyed by the complainants Charles H., Jonathan O. and Sallie M. Stokes, to them and their.-heirs for ever as tenants in common separated from the said defendants, but subject to the life estate of the other complainant, Wyndham H. Stokes, according to the respective interests of each of said complainants under the provisions of the deed and trust dated 9th day of August 1823, referred to in complainants’ bill.' And it is further decreed that the said Wyndham H. Stokes, Charles H. Stokes, Jonathan. O. Stokes and Sallie M. Stokes, complainants aforesaid, shall execute a conveyance of the premises No. 104 Market street, and deliver the same unto the defendants Sallie M. James, Wyndham H., Jr., Charles M. and Maria S. Stokes, so that they shall hold and enjoy the same to them and their heirs for ever as tenants in common separated from the said complainants, hut subject nevertheless as respects said defendants, and the said premises, No. 104 Market street, to the decree of this court, made the 18th day of January last past, in a certain cause then pending on the equity side of this court of September Term 1867, No. 21, wherein the Pennsylvania Company for insurance on Lives and Granting Annuites, Trustees, &c., were complainants, and Sallie M. Stokes and others were defendants.”</p> <p>The appellants filed the following assignments of error: — ■</p> <p>The court erred, 1. In decreeing a partition of the properties described in the bill, between complainants and Sallie M., James, Wyndham H., Jr., Charles M., and Maria S. Stokes, defendants, instead of between complainants and appellants.</p> <p>2. In decreeing that Wyndham H., Charles H., Jonathan 0., and Sallie M. Stokes, complainants, should deliver a conveyance of the premises, No. 104 Market street, to Sallie M., James, Wyndham H., Jr., Charles M., and Maria S. Stokes, to hold and enjoy the same to them and their heirs for ever as tenants in common.</p> <p>3. In refusing to decree that Wyndham H., Charles H., Jonathan 0., and Sallie M. Stokes, complainants, should deliver a conveyance of the premises, No. 104 Market street, to appellants.</p>

233, to January Term, 1869. This case was an action of ejectment, brought June 24th 1867, by Simon Brolaskey against Joseph McClain, for a lot of 20 feet in front on the south side of High street, Philadelphia, beginning at the distance of 79 feet east from the eastern side of Twentieth street (formerly Schuylkill Third street), and 176 feet deep; also for a lot on Barker street, directly on the rear of the Market street lot, of the same width, and 105 feet deep.

<p>1. It is not essential that notice of an equitable interest should come from the party or his agent, it may come aliunde, provided it be of a character likely to gain credit.</p> <p>2. A party about to purchase from a widow real estate, the legal title of which was in her, was informed by the grandfather of her minor children that the equitable title had been in the deceased husband and was then in his heirs. Reid, that the grandfather was a proper person to give notice and the party having afterwards purchased was affected by it.</p>

<p>1. A testator in Pennsylvania gave the residue of his estate to collaterals, and authorized his executors iu their “discretion to sell on such terms as to them shall seem expedient, all (his) real estate.” Ills personalty was sufficient to pay his debts and pecuniary legacies. He owned real estate in Minnesota, which his executors sold, deposited the proceeds in bank in Pennsylvania in their general account as executors with money arising from personalty, drew on the whole fund for the purposes of the estate and charged the proceeds in their general account as executors. Held, that these proceeds were not liable to collateral inheritance tax.</p> <p>2. The liability of land devised, &c., for collateral inheritance tax, is to be determined by its character at the death of the decedent.</p> <p>3. In this case there was a mere authority to sell, not a positive direction, and the land would have descended to the heir at law of a devisee dying.</p> <p>4. The interest, right of possession and perception of rents and profits were in the devisees between the death of the testator and the sale.</p> <p>5. The land and the proceeds when sold were under the jurisdiction of Minnesota.</p>

<p>Error to the District Court of Philadelphia: No. 241, to January Term 1869.</p> <p>This was an attachment-execution, issued by H. W. Jordan and Henry Buchenhorst, partners, &c., on a judgment recovered by them against Robert J. Sheridan. Louis Headman was the garnishee. The amount in the garnishee’s hands was $118. The question was whether it belonged to the defendant in the execution or to his wife. From the evidence given in the case it appeared that Headman, the garnishee, purchased from Robert Sheridan building stone which was quarried by him from real estate that had belonged to his father, Owen Sheridan, then deceased. By his will the decedent, amongst other things, directed his executors to sell his real estate at such times as they should think most advisable for the interest of all concerned, and apportion the proceeds into four equal shares from time to time, as the said real estate should be sold by them. He further provided as follows: —“ One of said shares I direct’ my said executors to invest in good securities at interest, and during the lifetime of my son, Robert J. Sheridan, to pay over the net income thereof quarterly to his wife, Annie Sheridan, to be used by her for the support of my said son Robert, and herself and his children, and her receipt shall be a good and valid discharge therefor to said trustees, and upon the death of my said son Robert, then I give and bequeath the said one-fourth part of the principal of my estate unto all his children who may be living at the death of my said son Robert.” The contract for the stone was made by Headman with Robert Sheridan. Headman testified:—</p> <p>“ I asked Robert about whether he had to get the executors to release off about that stone. He said he had arranged everything right about that with them. It wasn’t necessary. He said he was to pay 12J or 20 cents a perch for the stone in the ground. He did not tell, when he made the contract, that he was acting as agent for his wife. He hauled the stone to me. He drove himself, most of the time. Mr. Sheridan didn’t say he was acting as agent for his wife until the first receipt. This was in the name of the wife. I didn’t know the meaning, and asked. He said he was agent of his wife. I paid him two instalments, $45 and $20. "When I made the contract I asked him who were the executors, and he told me. I asked him then if I paid him the money if it was necessary for her to release off. He said he had all that fixed. He had to pay so much a perch for the stone.”</p> <p>Hare, P. J., amongst other things, charged:—</p> <p>“ So far as the legal question is concerned, I am of opinion that inasmuch as part of the proceeds of this land were, when sold, to have belonged to his wife for life, for the support of her family, so, until the sale took place, while it remained unsold, she had a corresponding interest in the land. If so, she and the other legatees were the persons equitably entitled to the benefit of the proceeds; and if, under those circumstances, a contract was made between the executors and husband, in good faith, that he should take out stone from a portion of the land and sell it for the benefit of the wife, I think that the proceeds of that sale would not be liable to be taken in execution for his debts.</p> <p>“ In corroboration of that view of the case, when Robert J. Sheridan gave a receipt under the contract, he gave the receipt as agent for his wife, which would seem to indicate that he was acting with a view to the appropriation of the money, so far as concerned hex* interest in that way. I see nothing in that purpose necessarily conflicting with any rule of law; and if you believe the design was to carry out in good faith that purpose, the labor bestowed by him will enure to his wife’s benefit, and you may find a verdict in this case for the garnishee.”</p> <p>The verdict was for the garnishee.</p> <p>The plaintiffs took a writ of error, and assigned for error, in several specifications, the charge of the court.</p>

<p>Error to the District Court of Philadelphia: No. 251, to January Term 1869.</p> <p>This was an action of assumpsit, brought May 29th 1867, by The Farmers’ National Bank of Reading against C. A. Seltzer, Augustus M. Seltzer and Zacharias Batdorff, trading as C. A. & A. M. Seltzer. The suit was on three notes made by O. A. & A. M. Seltzer, dated in December 1860 and May 1861, amount' ing in the whole to $1252.89. The question in the case was whether Batdorff was a partner in that firm.</p> <p>The plaintiffs, after giving the notes in evidence, offered the deposition of James L. Nutting, in which the witness testified that Batdorff went into the foundry business in Fremont, Schuylkill county, about 1860 or 1861. He had three or four years previously been in other business, had failed and been sold out by the sheriff, and his property bought in by the Seltzers. When in the foundry business he signed as agent for the Seltzers; they were afterwards sold out by the sheriff under a judgment in favor of Batdorff; most of the property was bought in by him at low prices, the Seltzers and Batdorff saying that it was to save the property from debts for which the firm was liable as security, and in order that they might be able to pay their real creditors. By reason of their assurance to witness, who was a creditor of the firm, and to other creditors, they were induced not to bid against Batdorff. The foregoing was noted on the deposition as objected to whilst it was being taken. There was in it other evidence, not then objected to, for the purpose of showing that Batdorff was a partner. The admission of the deposition was objected ¡to by Batdorff as to any evidence relating to the sheriff’s sales of the property of Batdorff and C. A. & A. M. Seltzer, and to the parts mentioned as having been noted on the deposition. The whole deposition was received and a bill of exceptions sealed.</p> <p>The plaintiff then offered to prove by H. Reichenbach a conversation, in 1855 or 1856, between witness and Batdorff, in relation to his connection with the firm of O. A. & A. M. Seltzer. Batdorff objected to the offer; it was admitted, and a bill of exceptions sealed. Witness testified that Batdorff at that time told him he was a secret partner in the firm. The plaintiff then gave much evidence for the purpose of showing that Batdorff was a partner.</p> <p>The plaintiff examined Mrs. Ella Sallada, a sister of the Seltzers, to the point of partnership. In her examination in chief she stated, amongst other things, that her brothers owed her money which she had given them after their failure; and on cross-examination in relation to the money, that a house in Reading had been bought for her with money received by her from her father’s estate. Israel Sallada testified for the plaintiff. Batdorff, on cross-examination, proposéd to ask the witness if he was a creditor of C. A. & A. M. Seltzer, as introductory to a further question, to show that the witness had an interest in the question in controversy by securing his claim through making Batdorff liable for the Seltzers’ debts. On objection by the plaintiff, the court refused to allow the question to .be asked, and sealed a bill of exceptions.</p> <p>The plaintiff having closed, Batdorff proposed to prove by Augustus Huber that the witness had purchased the property of the Seltzers at sheriff’s sale in his own right without any previous arrangement with Batdorff or the Seltzers; that he afterwards sold the property to Batdorff. The offer was rejected, and a bill of exceptions sealed. He further proposed to prove that Mrs. Sallada had not money to loan to her brothers or to pay for the house in Reading. The offer was rejected, and a bill of exceptions sealed. He also proposed to prove by E. L. Pinkerton and others and by letters of the Seltzers that this and other suits had been brought at the instigation of the Seltzers, that they had offered to suborn witnesses and endeavored to induce them by promises of property, &c., to swear falsely that they had heard Batdorff say he was a partner and that the plaintiff brought this suit after the conspiracy was formed and in consequence of it. The offer was rejected, and a bill of exceptions sealed. The defendant Batdorff gave other evidence for the purpose of disproving the partnership.</p> <p>The court (Stroud, J.), amongst other things, charged, “ there was other evidence given by the defendant, which, if it had been objected to, would have been rejected, but the jury might take into consideration everything that had been received in evidence, and give to it whatever weight they might find it to possess.’’</p> <p>The verdict was for the plaintiff for $>1794.76.</p> <p>Batdorff took a writ of error, and assigned the following errors: viz., that the court erred,</p> <p>1. In admitting the whole deposition of Nutting.</p> <p>2. In admitting evidence relating to the first sheriff’s sale of Batdorff’s property.</p> <p>8. In admitting any evidence affecting the second sheriff’s sale of that being the Seltzers’ property.</p> <p>4. In admitting the testimony of Reichenbach of conversations with Batdorff in 1855 and 1856.</p> <p>5. In rejecting evidence that I. Sallada, a witness for plaintiff, was a creditor of the Seltzers for the purpose of showing the interest of witness in the question in controversy.</p> <p>6. In rejecting evidence that Huber bought the property of the Seltzers at sheriff’s sale for himself without any arrangement with Batdorff or the Seltzers.</p> <p>7. In rejecting evidence to contradict Mrs. Sallada.</p> <p>10. In rejecting evidence to show that this suit and others were instituted at the instance of the Seltzers, that they tried to suborn witnesses, &c.</p> <p>12. In the portion of the charge stated above.</p>

<p>Error to the District Court of Philadelphia: No. 284, to January Term 1869.</p> <p>The proceedings in this case in the court below were commenced under the Sheriff’s Interpleader Act, and arose as follows:—</p> <p>George R. Corry obtained a judgment, August 22d 1866, against William Austin for $7000, on which a fi. fa. was issued, and Austin’s goods sold to Corry, May 24th 1867. On the 25th of May 1867 Amos Funk obtained judgment against Austin for $5849.17, on which a fi. fa. was issued, and the goods which had been sold to Corry seized as the property of Austin. Corry claimed the goods, and under the Interpleader Act gave bond; the sheriff withdrew from the possession of the goods, and an issue was formed between Corry and Funk to try the ownership of the goods.</p> <p>A judgment was obtained, July 29th 1867, against Corry, on which a fi. fa. was issued, and the same goods sold to James Bain and James N. Kern, December 30th 1867. On the trial of the issue between Corry and Funk, a verdict and judgment were rendered for Funk; and the court ordered that the sheriff proceed to sell the goods which had been levied on under Funk’s fi. fa. A vend. ex. was accordingly issued, and the sheriff took the goods from the possession of Bain and Kern. They gave notice to the sheriff that they claimed the goods. The sheriff moved the court for a rule to interplead, and depositions were taken and read on the hearing. On the 29th of June 1868, the court discharged the rule. Bain and Kern thereupon took a writ of error, assigning for error the discharge of their rule.</p>

<p>1. In order to bring a party into liability for profit on property sold to a company, he must have occupied a fiduciary relation to it, so that money received by him to his own use was by means of his fraud, money of the company.</p> <p>2. In such case equity has jurisdiction but does not give damages, but a restoration of the thing wrongfully taken, that is the money received, or an equal sum and interest.</p>

<p>1. Neither the register nor the Register’s Court is hound to award an issue when demanded, in every case as to the validity and due execution of a will.</p> <p>2. To entitle a party to an issue, there must he a dispute on some matter of fact material to the validity of the will.</p> <p>3. A mere naked allegation without evidence or against evidence, cannot create a dispute requiring an issue.</p> <p>4. The party requesting an issue must set forth the facts, that the court may he able to determine their materiality.</p> <p>5. If the facts are material the court is hound to award an issue when requested, otherwise not.</p> <p>6. A testator was paralyzed and said he was unahle to write, he would put his mark to the will: he was raised in hed, a pen was put into his hand which was held hy another whilst he made his mark. Held, that this was a valid execution of the will.</p> <p>7. This was the testator’s own act with the assistance of another, not the act of another under his authority.</p>

<p>1. Parties purchased oil land, and shortly afterwards with others formed a corporation to whom the land was conveyed at an advance. If the purchasers acted as agents of the company in purchasing the land, they could not charge a profit against their principal.</p> <p>2. They would be in the same position if they assumed so to act without precedent authority, if their doings were accepted as the acts of agents by the company.</p> <p>3. If in order to get up a-company they represented themselves as having acted for one to be formed, proposed to sell at the prices they had paid, and their purchases were taken and stockholders invested on these representations, it was a fraud on those interested to allow them to retain profits paid them by the company in ignorance of the sums advanced.</p> <p>4. If they had disclosed the exact sum paid for the land, and had refused to sell except at an advance which was paid them, they would have a right to retain the profits.</p> <p>5. Where parties have so acted, an action in form ex contractu can be maintained, only by'showing fraud in dealing with the company, by reason of which they should not ex aequo et bono, retain the moneys wrongfully obtained from it.</p> <p>6. In investigations as to fraud great latitude of inquiry is always allowable.</p> <p>7. There being evidence that the purchase and sale of land was the combined act of two parties, the publishing of a prospectus, advertisement, &e., by one was evidence against both.</p> <p>8. The refusal to strike out the evidence of a witness afterwards ascertained to be interested, is not assignable for error. • It is to be corrected by a request to charge that the evidence be disregarded.</p> <p>9. Declarations of the parties if relevant are admissible, no matter where made.</p> <p>10. A prospectus of an oil company stated that the company had purchased their land from the “ original owner.” Held, that this was not a term of art to be explained by experts.</p> <p>11. The term implied that no profits were added to the price paid by the company on .account of an intermediate buyer; &c., and excluded the idea of a purchase at speculative prices.</p> <p>12. Agents, partners or associates cannot make profit out of their principals, copartners or co-associates for whom they have undertaken to act.</p> <p>13. Directors 'are but the agents of the company, and have power to act only for the interest of the company, not against it.</p> <p>14. .The shareholders constitute the company, and the actsl>f the directors can be inquired into at their instance.</p> <p>15. A fraud against a corporation by any or all of the directors, may be redressed by an action in the name of the corporation.</p> <p>16. The action being joint, it was necessary to prove that the money had been received by both defendants.</p> <p>17. The'receipt of money by an agent is primá facie evidence of the receipt by a principal, and by one partner that it is for the firm.</p>

<p>Error to the Court of Common Pleas of Berks county: No. 46, to July Term 1867.</p> <p>This was an action of ejectment brought, April 10th 1862, by William Breidegam against Samuel Hoffmaster and John W. Burk-hart for a tract of 86 acres of land. The land formerly belonged to John Hassler, who died February 1st 1826, having made his will by which he gave to his wife Susanna Hassler all his personal property. He ordered his “plantation or farm” to remain in his name unsold and in good repair for ever, the annual profits to be paid to his god-children whom he named as long as. they lived, “ and after their death to go to the use of our church.” Susanna Hassler, the widow, died in June 1858, having made'.a will, proved February 4th 1862, by which she gave “all her estate, real and personal,” to the plaintiff, tie, claiming that Mrs. Hassler had obtained a title by the Statute of Limitations to the land in controversy, brought this ejectment against the defendants, who were in possession under the devisees for life of John Hassler.</p> <p>On the trial the plaintiff gave evidence that the widow had occupied the plantation by herself for some years after her husband’s death, and then moved to Reading. After that she rented it to a number of tenants, and maintained the entire management and control of it during her life. There was evidence also that she declared “ that it was her property, and she would do with it what she pleased,” and that “ she always spoke of it as her plantation.”</p> <p>On the part of the defendants there was evidence that the land had been assessed to John Hassler’s estate from the time of his death; also of declarations of Mrs. Hassler, that her husband “ had willed the farm to her as long as she had his name, then to the children they’d held in baptism, and after their death it was to go to Spies’s church.” A number of witnesses testified to declarations by Mrs. Hassler of the same kind. Most or all of these witnesses were strangers to the parties, and unconnected with them in any way.</p> <p>The plaintiff submitted the following points:—</p> <p>“ 1. The possession of Mrs. Hassler and her tenants from 1826 to 1858, as proved by the plaintiff’s witnesses, contains adequate evidence of a title by the Statute of Limitations.</p> <p>“ 2. Nothing in the testimony of the defendants should be taken •to affect the rights of Mrs. Hassler, to withdraw the case from the operation of the statute, or to create a bar to a recovery by the plaintiff.”</p> <p>The court affirmed the 1st point, and on the question presented in it said in the general charge:—</p> <p>“ Under this evidence, if believed, it would be competent for the jury to find such a possession in Mrs. Hassler, as to warrant a verdict for the plaintiff.”</p> <p>As to the 2d point he charged :—</p> <p>“ Upon the 2d point, the court are constrained to refuse the instruction asked by counsel. The question raised by the testimony of the defendants is one of fact, and must be submitted to the jury. If they find that Mrs. Hassler claimed only an estate for life, and during her tenure recognised and admitted the right of the devisees to the property upon her decease, a title could not have been acquired by her under the statute, and she could not, consequently, transmit the property by will to her own devisee.”</p> <p>In his general charge the judge enlarged upon the principle stated in this answer, and applied it to the evidence.</p> <p>The verdict was for the defendant.</p> <p>The plaintiff took out a writ of error and assigned for errors the portion of the charge given above and the answer of the court to his 2d point.</p>

<p>Error to the Court of Common Pleas of Berks county: No. 115, to January Term 1866.</p> <p>This was an amicable action of debt entered June 30th 1862, between Peret Hain and others, trustees of Hebron Encampment of Odd Eellows, plaintiffs, and Adam Waid, treasurer of the encampment, and Daniel Beyerle and others, his sureties, on Waid’s official bond, defendants.</p> <p>The by-laws of the encampment provided: “ The treasurer shall receive all money collected by the scribe. He shall have charge of the uninvested funds, and the evidence of all investments. He shall, when in funds, at sight pay all orders drawn on him by the encampment, signed in legal form. He shall keep a correct account of all money received and orders paid, and be at all times prepared to show the balance in his hands. At the expiration of his term of office, and when a successor has been elected and installed, he shall deliver to him all money, evidence of investments, books, papers and vouchers belonging to the office, in his hands. Before entering on the duties of treasurer he shall give such security as the encampment may require.”</p> <p>. Waid was elected treasurer of the encampment on the 10th of June 1853, and annually thereafter until 1861, inclusive. In that year he was elected, June 14th, and on the 27th of July he and his sureties entered into the bond in suit. The bond is in the penal sum of $1500, with condition “that the said Adam Waid does well and truly pay all orders drawn on him by the said Hebron Encampment, signed by the C. P. and attested by the scribe, and in all other respects faithfully discharge the duties of the said office of treasurer, and at the expiration of his term of office, deliver over to his successor all moneys, books or papers that may be in his hands belonging to the said Hebron Encampment.”</p> <p>Waid was installed as treasurer August 9th 1861. The treasurer’s book in Waid’s handwriting, showed a balance in his hands, July 1st 1861, of $588.09, and also the following entries:—</p> <p>“ 13th September 1861. Adam Waid, Dr. to balance in hand,.......$394 35</p> <p>Received at sundry times from 13th September 1861 to January 10th 1862, inclusive, .... 619 98</p> <p>$1014 33</p> <p>Credits from September 27th 1861 to January 10th 1862,........ 607 67</p> <p>406 66</p> <p>-CHARITY RUND.</p> <p>September 1861. Bal. in hands, . . $96 85</p> <p>Credits from September 27th 1861 to January 10th 1862,..... 71 00 25 85</p> <p>$432 51”</p> <p>Waid resigned his office as treasurer, and his resignation was accepted February 14th 1862. Mathias Mengel was elected his successor and installed March 14th. The suit was brought to recover the balance above stated, with interest.</p> <p>The defendants gave in evidence from the treasurer’s book his accounts for several years previously to 1861, and then offered “to prove that Adam Waid gave bond with adequate security in each year before the present bond was given — no one of the sureties in this bond having been party to any former bond.”</p> <p>Also, “that at the date of bond in suit, Adam Waid was insolvent, and had been so a year previously. And also to prove that it was not made known to the sureties that Adam Waid was charged on the-books as treasurer with $588.09 when bond was given, and that it was known to plaintiffs.”</p> <p>Both offers were rejected and several bills of exceptions sealed.</p> <p>The court (Woodward, P. J.), after recapitulating the evidence, charged, amongst other things:— ■</p> <p>[“ The accounts in evidence show that on the 13th of September 1861, the balance in the hands of Waid was $491.20. He charged himself upon that date with this sum as standing to the credit of the encampment. The ground is now taken on the part of the defendants, that there should be no recovery against the sureties, because the treasurer paid out from that time to the 10th of January 1862, more money than he received. A point has been made to the jury that under the evidence, it ought to be found that, so far as the sums received and the sums paid correspond in amounts, the treasurer paid out the identical money that was paid to him. The court believe that the evidence would justify such a finding by the jury, and they will dispose of the case as if the fact had been established by a verdict. Upon the main question the opinion of the court is, that the entries of the 13th of September are to be taken as proving the balance due the encampment to have then been in the treasurer’s hands. There is no proof of any default made before the date of the bond in suit. And there is nothing upon the record to show that he did not actually hold the moneys with which he charged himself after he entered upon his renewed term of office. It would not be enough, in order to establish this, to prove that Mr. Waid was destitute of personal means. In a question like this, evidence of the actual insolvency of a fiduciary agent would lead to no presumption of failure of duty in relation to his trust. In the absence of countervailing testimony, the entries made by Waid are to be taken as. establishing that the money charged to himself was in his hands subsequently to the execution of the bond.] * * *</p> <p>[“ The proposition that the bond does not cover any balances in the hands of Waid, for any year previous to that for which he was last elected, would he well founded if no such balance was actually in his hands when the bond was given. If the money had been embezzled or wasted before the 27th of July 1861, the sureties would be liable only for the amounts subsequently received. But the condition of the bond was for the surrender by the treasurer of all moneys in his hands at the expiration of his term of office.] The eases which have been read show that in every instance where there was default made by an accounting officer under an earlier appointment, his sureties were not held responsible for that default upon a new bond given after a subsequent appointment. All these cases, with a single exception, are distinguishable in their general features from the present one, for they grew out of the liabilities of officers bound to make periodical payments of moneys received, and in each of them the default had been made previous to the execution of the bond in suit. Here it was the treasurer’s duty to retain the amounts paid to him. He was bound to pay all orders duly drawn, and to deliver the balance of the fund to his successor. The first default he is proved to have made occurred at the expiration of his term, and while the present obligation was in force. The exceptional authority alluded to is the case of The Commonwealth v. Baynton, 4 Dallas 282, and there neither the condition of the bond nor the character of the breach was disclosed in the report.</p> <p>[“ The court are of opinion that the claim in suit is within the plain words and intention of the covenants entered into by the defendants, and that the plaintiffs are entitled to a verdict.”]</p> <p>The verdict was for the plaintiffs for $514.11. The plaintiffs paid the verdict fee, and having exhibited the county treasurer’s receipt for it to the prothonotary, he entered judgment on the verdict in vacation without notice to the defendants or their counsel. An execution was issued on the judgment and the court granted a rule to show cause why the judgment should not be vacated and the execution set aside, on the ground that the prothonotary had no right to enter judgment under the circumstances.</p> <p>The court, after argument, discharged the rule.</p> <p>The defendants (the sureties) took a writ of error and assigned for error:—</p> <p>1 and 2. The rejection of their offers of evidence.</p> <p>3, 4 and 5. The parts of the charge included in brackets.</p> <p>6. Refusing to vacate the judgment and set aside the execution.</p>

<p>Error to the Court of Common Pleas of Berks county: No. 67, to July Term 1868.</p> <p>This was an action on the case commenced November 26th 1864, by John Keppleman against the City of Reading for injury to his foundry and lot, situate on Fifth street, north of Elm street in that city. In or about May 1861 the plaintiff built his foundry. In the year 1863 the grade of Fifth street in front of his lot was, by order of the city councils, raised about one foot and four inches, and in October 1864 the grade was again raised by the same authority about three feet and two inches more, making the whole increase about four and one-half feet. This increase he alleged was without authority of law, and he brought this suit to recover damages for the injury. He gave evidence of the raising of the grade, and the amount of injury sustained by him. The principal question was the authority of the councils to alter the grade.</p> <p>The Act of March 29th 1813, § 6, Pamph. L. 213, conferred on the municipal authorities of the borough of Reading power to provide for “ improving, repairing, cleansing and keeping in order the streets, lanes, alleys and highways,” &c. By § 9 of the Act of March 16th 1847, Pamph. L. 409, incorporating the City of Reading, it is provided that the select and common councils “ shall' have, hold and enjoy all the powers now vested in the borough of Reading, which are hereby transferred to and vested in the said councils.”</p> <p>The city.charter was revised by Act of Assembly, approved March 13th 1861, Pamph. L. 104, the 1st section of which provides that the city of Reading “ as such shall exercise and enjoy all the rights, immunities, powers and privileges, and shall be subject to all the duties and obligations, now incumbent upon and appertaining to said city as a municipal corporation.”</p> <p>The 41st section provided, “ That the councils, within ninety days after the passage of this act, are hereby authorized and required to appoint a competent civil engineer, whose duty it shall be, as soon as the same can be done, to survey and mark the lines of all the streets and highways of the city now open or intended to be opened for public use within the said city; and also survey and lay out the width and extension of the same, or such new streets, avenues and highways, within said city, as the councils shall deem necessary, for a regular and convenient town plan, and for the more equal distribution and ready discharge of the waters thereof; and to regulate the height, ascent and descent of said streets, avenues and highways, and of the gutters, sidewalks and footways thereof; and for that purpose said engineer shall have full power and authority to enter upon the land of any person or persons within the said city; and when the said survey and regulations shall be completed, the said engineer shall make or cause to be made, duplicate drafts or plans thereof, with every position and explanation necessary for a full understanding of the same, distinctly designating where the new streets, avenues and highways shall hereafter be opened; and one of the said drafts or plans shall be returned to the councils, who shall keep the same in such places as they shall fix upon; and the other of the said drafts or plans shall be returned tp the clerk of the Court pf Quarter Sessions of the county of Berks, to be filed in his office for public inspection and examination; and it shall be the duty of the said councils to give at least thirty days’ previous notice, that on a certain day to be appointed by the court, the court will hear any objections that may be made thereto by any freeholder or citizen of the said city, and the court shall, at the time appointed, adjudge and determine whether any and what alterations shall be made therein, and shall direct the draft or plan, with such alterations as shall he made, to be recorded in the office of the clerk of said court; and thenceforth all the streets, avenues and highways, as therein contained, shall be for ever deemed, adjudged and taken to be public highways, and the survey and regulations of the said streets, avenues and highways, so returned and recorded, shall be, and remain, unalterable; and in case the city councils, by themselves, or their officers, shall deviate from the regulations of the streets, avenues and highways, so as aforesaid established, and damages should accrue to the property of any person or persons, in consequence thereof, the said city shall be liable for the payment of such damages ; and all streets, or highways, not retained in the said draft or plan, as such, shall be and the same are hereby vacated; and inasmuch as the public convenience will for the present be answered by a certain knowledge where and in what manner streets, avenues and highways will, in future, run,” &c.; the section further provides for the future opening, &c., of streets not at once necessary.</p> <p>Sect. 42 provides for assessing and paying damages for opening, &c., “upon the draft being recorded as provided aforesaid,” &c.</p> <p>The 58th section provided, “ That all acts and parts of acts, inconsistent with this act, are hereby repealed: Provided, That the repeal of said acts shall not affect any act done, or any right accruing, or accrued, or established, or any suit or proceeding had or commenced in any civil case before the time of the repeal: and no offence committed, and no penalty or forfeiture incurred under the acts hereby repealed, shall be affected by the repeal; and no suit or prosecution pending at the time of the repeal for any offence committed, or for the recovery of any penalty or forfeiture incurred under the acts hereby repealed, shall be affected by such repeal: And, provided further, That the ordinances now in force in said city shall continue in force, so far as the same are not inconsistent with this act, until the same shall be repealed, altered or supplied, under the authority given to the councils of said city.”</p> <p>The city charter was again revised by Act of April 26th 1864, Pamph. L. 583. The 1st, 44th and 62d sections of this act correspond with the 1st, 41st and 58th sections respectively of the Act of 1861; except that the Act of 1864 limits no time within which the engineer shall be appointed.</p> <p>Section 61 of the Act of 1864 provides, “ That this act and the powers and authorities herein vested in the said city, shall not be impaired, affected, defeated or destroyed, by any neglect or omission to appoint all, or any of its officers at the time or times allotted for the same; and in case of any such neglect or omission, the mayor of the said city shall forthwith take all necessary measures to cure and supply such defects and omissions, giving due notice thereof.”</p> <p>The councils having determined in 1863 to widen and fill up Fifth street north of Elm street, in that year and in 1864 made various appropriations, the last one on the 29th of October 1864, being “to complete the improvement upon Fifth street beyond Elm.” No civil engineer had been appointed under the Acts of 1861 or 1864 at the time of the raising of the grade complained of, nor had there been any survey and plan of the city made, as required by the Acts of Assembly.</p> <p>Woodward, P. J., after referring to the nature of the plaintiff’s claim and the evidence, charged:—</p> <p>“ The general rule of law that a municipal corporation is not liable for consequential damages to private property by an alteration in the grade of a street, is too well settled in Pennsylvania to be questioned. Ordinarily the corporate authorities have entire control of all subjects of this kind. It is claimed on the part of the plaintiff in this ease, however, that his rights stand on exceptional grounds. While the charter of the borough of Reading and the act incorporating the city of Reading, which have been given in evidence, gave full power to the municipal officers to regulate the streets within the limits of the corporation, and to make such alterations and improvements as they should deem expedient, it is contended that when the work was done on Fifth street, that is now in question, the rights of these officers had been limited by special legislation.”</p> <p>The judge then stated the provisions of the Acts of Assembly and proceeded:—</p> <p>[“ The effect of this legislation was to provide a special and exceptional mode for establishing the grades of the streets of the city of Reading. It modified the provisions of previous statutes, which gave the control of all plans of permanent improvement to. the city councils. It left, however, the ordinances which related to the repairs of the existing streets in full force. Notwithstanding the Acts of 1861 and 1864, it still remained their duty to maintain the highways of the city in a condition to meet the necessities and convenience of the community, and to preserve the travelling public from risk and danger. Beyond that their power did not extend. The duty of regulating streets, of fixing their height, ascent and descent, of establishing permanent grades, and of making improvements for the purpose of adjusting those grades, was at least suspended while action was pending under the Acts of 1861 and 1864. The question upon which the jury will be required to pass, involves an inquiry into the nature and character of the work done on Fifth street, for the consequences of which, to his property, the plaintiff has brought this suit.</p> <p>“ It is not pretended that this work was done by the city in view of any plan fixed by the general survey which was required by the acts recited. No steps are shown to have been 'taken, either by the city engineer, the city councils, or the Court of Quarter Sessions, towards the establishment of that plan. What then was the character of the work ? Was it intended to alter and change the grade of Fifth street for purposes of permanent improvement ? If so — if the jury find 'that the city councils and their officers were attempting to perform duties, which the statutes had imposed upon the city engineer and the corporate authorities, to be performed in a special way — and if they find that injury resulted to the plaintiff, in consequence of their unauthorized act, he is entitled to recover such damages as under the evidence they shall find that he sustained. If on the other hand, it shall appear from the evidence that the work done consisted only of repairs that were reasonably necessary, the verdict should be for the defendants. If the street was in a dangerous condition, as has been stated by Adam Fox, it was not only within the power, but it was the duty, indeed, of the city councils, to make it safe. If, in rebuilding the culvert, it was necessary to raise the bed of the street in front of the foundry, to the extent proved by the witnesses, in order to make the culvert available, then whatever the consequential damage to the plaintiff, he cannot recover. If there was a reasonable necessity for what was done, they were acting under charter powers, which remained vested in them. If they transcended those powers; if without the existence of any reasonable necessity, they injured the plaintiff by an alteration in the grade of the street, made for the mere purpose of permanent improvement, that was within the scope of the statutory powers conferred on the city engineer, he would be entitled, to the extent of the injury caused by such permanent improvement, to compensation. For the consequences of work done in view of a reasonable necessity for repairs, he can have no right to recover. For the consequences of work done beyond that of work done in view of no such necessity, he would be entitled to such damages as the jury find to be proved.”] * * *</p> <p>The jury found for the plaintiff $1050.</p> <p>The defendant took a writ of error, and assigned for error the part of the charge included in brackets.</p>

<p>1. Since the Act of February 20th 1867 (Lunatics, &e.), there is no doubt as to the power of a committee to maintain an action of partition.</p> <p>2. Actions for remedy merely could be prosecuted and defended by a committee under his general powers before the Act of 1867.</p> <p>3. A testator devised land to two sons, and directed if they desired partition that it should be done by three men agreed on by them in a manner directed in the will. One of the sons was found an habitual drunkard. His committee offered to the other son to make the choice, which he declined. Held, that an action at law lay when by the disability of the parties, or a refusal to proceed under the will, partition became impossible in the mode there pointed out.</p> <p>A. Election to take land by seniority or sex belongs solely to proceedings in the Orphans’ Court.</p> <p>5. In the Common Pleas preference is given to seniority of title only, and where that fails it belongs to the discretion of the court to award it.</p> <p>6. Under the Act of April 22d 1856 (Partition), preference is taken away when a bid higher than the valuation is offered. The right then depends on the price offered.</p> <p>7. The Act of 1856 warrants only a single offer in writing, and the court can compel the parties to hand their offers in together, or permit them to seal them up until the court can order them all to be opened.</p>

<p>Error to the Court of Common Pleas of Berks county: No. 366, to January Term 1869.</p> <p>This was an action of assumpsit, brought to November Term 1866, by Henry Klohs, an habitual drunkard, by his committee Samuel Reifsnyder, against Aaron Klohs. There had been mutual dealings between the parties, and the suit was brought to recover a balance alleged to be due to the plaintiff.</p> <p>The plaintiff having shown an original indebtedness of $3000 by the defendant to him, the defendant examined Edward Shalter, who testified that at the request of the parties he made a statement of settlement between them on the 16th of July 1866; the items were given by both parties; a balance of $294.29 was found to be due to the plaintiff, for which the defendant gave his note and the plaintiff signed a receipt at the bottom of the settlement. There was evidence that the note was passed by the plaintiff to William Rhodes for value, and part of it had been paid by the defendant.</p> <p>The plaintiff then gave in evidence proceedings to declare him an habitual drunkard, commenced June 15th 1866, a month before the settlement; the service of notice, June 20th, upon the defendant as plaintiff’s next friend, of the holding of the inquest, July 5th: the finding, July 21st, that the plaintiff had been an habitual drunkard for one year, and confirmation of the inquisition, August 6th. There was evidence, independently of this finding, tending to show the incapacity of the plaintiff for a considerable time before the settlement.</p> <p>The defendant again called Shalter, who testified: “ Henry Klohs was sober the morning the settlement was made. From what occurred.then I thought him fit to do business. I had conversation with him after the settlement was made, he was not in liquor at the time.”</p> <p>There were no written points submitted, and Woodward, P. J., charged:— .</p> <p>[“ The right of the plaintiff to recover in this action must depend upon what the jury find to have been his condition and capacity when the settlement of the 16th July 1866 was made.”] (The court here referred to the evidence and further charged): — • “ Under the legal principles stated the jury are to ascertain the competency of Henry Klohs to do business on the 16th day of July 1866. Unless the proof offered on behalf of the defendant has been such as to satisfy the jury that the plaintiff had memory and judgment enough to understand the character of the act he was doing, and of the responsibilities entailed by it, the verdict must be for the plaintiff for the amount claimed in the statement prepared by the counsel to be submitted to you. In order to sustain the alleged settlement it is incumbent on the defendant to prove affirmatively that Henry Klohs at the time it was made was sober and capable of transacting business in an intelligent way. Upon' this question the jury will weigh the testimony of Mr. Shalter in its connection with the other evidence in the cause. If they are not satisfied that the defendant’s proof has made out the plaintiff’s competency, the settlement is to be disregarded, and a verdict rendered for the amount of the plaintiff’s claim. [If they find that he was sober and had an intelligent knowledge of the act he was doing, the verdict should be for the defendant.]</p> <p>“ The court has been asked to charge that the act of the defendant in procuring the settlement while the commission of lunacy was pending, was a fraud in law. This would be to assume on the part of the court the entire disposition of the whole cause. The particular circumstances in which the parties stood, and the particular facts that affected them, are relied on in support of the view which the plaintiff’s counsel takes. All the circumstances and facts are to be considered by the jury in passing on the question referred to them. But the court do not understand that the current of authority in this state would warrant the instruction asked. It would undoubtedly be a fraud in fact for a party to procure a contract or settlement with a drunken man, or with a man incompetent from mental infirmity to do business, while a commission of lunacy was pending, but it would not be a cause to justify a court in peremptorily ruling it to be a legal fraud.”</p> <p>The verdict was for the defendant, and the plaintiff took out a writ of error, assigning for error the parts of the charge enclosed in brackets; and also that the court did not charge that it is fraud in a person after having notice of the commencement of proceedings to declare a party an habitual drunkard, to make a settlement with the habitual drunkard, or pay money to him, and is contempt of the process of the court.</p>

<p>1. A testator bequeathed to each of his children one equal share of the residue of his estate, providing that if any of them died before receiving their shares, “ the heirs or legal representatives of such shall he entitled to the shares their ancestors would have been entitled to.” In a codicil he recited that one of his daughters had died leaving a son, and gave to “ him all that I had in my will devised to his mother,, except in case (the son) should die without lawful issue, that the said legacy — shall be equally divided among my children or their legal representatives.” Held, that the son took his mother’s share absolutely.</p> <p>2. Amelia Smith’s Appeal, 11 Harris 9, considered and approved.</p>

<p>1. A minor step-daughter resided with her step-father as a member of his family. To recover for her maintenance, &e., after her death it was held that the father must prove a contract with her guardian.</p> <p>2. The guardian allowed the father the interest of her estate; this afforded an inference of an intention to pay that much and no more.</p> <p>3. A release had been executed by the father and his wife, who was the mother of the minor, to the guardian, reciting the father’s services, &c., that he had not been compensated, and acknowledging the receipt from the guardian of a sum of money in payment. The release, by order of the wife, was not delivered, nor the money paid to the husband. Held, that the paper was not evidence of an agreement between the father and the guardian.</p>

<p>Error to the District Court of Philadelphia: No. 236, to January Term 1869.</p> <p>This was a scire facias sur claim, issued October 10th 1868, by The City of Philadelphia to the use of George W. Mooney against George M. Stroud. The claim filed was against the defendant, “ owner,” &c., for $287.26, for work and materials for constructing a culvert in front of a lot of ground at the south-east corner of Master and Twentieth streets, Philadelphia, &c.</p> <p>The defendant filed the following affidavit of defence:—</p> <p>“That the work done and materials furnished were not done and furnished at his instance and request, but were done and furnished without and against his consent, and were not done or furnished for his use or benefit, nor were the said work and materials in any way done or furnished fot the benefit of the property of this deponent described in the claim upon which the writ of scire facias in this suit was issued, but were done and furnished in the construction of a public sewer or culvert, and not on his property, or on any property in which he has any interest or estate, but in a public highway or street, called Master street, in the Twentieth Ward of the city of Philadelphia; that the charge or assessment of the cost and expenses thereof upon him, or on the real estate against which the said claim has been filed is unjust, unequal and oppressive, and without any warrant of just law, and that the same is forbidden by the. Constitution , of Pennsylvania, especially by the last clause of section 10 of article 9, entitled ‘Declaration of Rights,’ which clause is ihYhese'worE":] ‘ Nor shall any man’s property be taken or applied to public use without the consent of his representatives, and without just compensation being made;’ taken in connection with section 26 of the same article, the language of which section is, ‘ that everything in this article is excepted out of the general powers of government, and shall for ever remain inviolate.’ ”</p> <p>The claim was entered under the Acts of April 8th 1864, § 1, Pamph, L. 324, and March 13th 1866, § 1, Pamph. L. 354, authorizing the city of Philadelphia to construct culverts, fix the rates and charges by ordinances, enter liens therefor, &c., and by ordinance of the councils of May 12th 1866, the material part of which is, “ that whenever any sewers or drains shall be laid in any of the streets or highways within the city of Philadelphia, the owners of the ground in front whereof the same shall be laid, shall pay for the expense thereof the sum of one dollar and twenty-five cents for each foot of the front of their ground upon such street: Provided, that on all corner lots an allowance shall be made of one-third the length of one of their fronts, such allowance to be always and only on the street or highway having the longest front, and no claim for deduction shall thereafter be considered where, by change of property lines, the allowance made shall, by such alteration, be placed upon the short side,” &c.</p> <p>The ordinance further requires that the contractor for doing the work shall accept the assessment-bills of the work as made by the city surveyor and regulator as cash, and shall have authority to collect them in the name of the city.</p> <p>The court entered judgment against the defendant for want of a sufficient affidavit of defence, to which he took a writ of error, and assigned the entry of judgment for error.</p>

<p>Error to the District Court of Philadelphia: No. 280, to January Term 1869.</p> <p>This was an action of assumpsit brought, February 1st 1868, by Bryant Ferguson, administrator, &c., of Joseph S. Senat, deceased, against Peter T. Wright, administrator, &c., of Lewis D. Senat, deceased.</p> <p>The declaration was for money had and received and on an account stated.</p> <p>On the trial before Hare, P. J., the plaintiff gave evidence of the existence of the firm of Senat, Brothers & Co., consisting of George S. Senat, Lewis D. Senat, Joseph 8. Senat and William Nichols; that Joseph S. Senat died June 2d 1860, and that notice, dated December 31st, of the dissolution of the firm by his death, was published in the North American and United States Gazette on the 1st of January 1861, and that the surviving partners would continue the business under the same firm name.</p> <p>They also gave in evidence, from the partnership hooks, the following account:—</p> <p>“ESTATE OE JOSEPH S. SENAT.</p> <p>1862.</p> <p>Eeb’y 28, To Cash . . $50.00</p> <p>To Balance . 16,000.82</p> <p>$16,050.82</p> <p>1861.</p> <p>Jan’y 1. By Sundries . $14,668.95</p> <p>June 30. By Interest . 440.07</p> <p>July 1. By Balance . $15,109.02</p> <p>Aug. 31. By Cash . . 22.04</p> <p>Dec. “ By Interest . 453.71</p> <p>1862.</p> <p>Jan’y 1. By Balance . $15,584.77</p> <p>June 30. By Interest . 466.05</p> <p>$16,050.82</p> <p>July 1. By Balance . $16,000.82”</p> <p>The claim of the plaintiff was for this balance on the account.</p> <p>W. H. Nichols, one of the surviving partners, testified that Lewis D. Senat, who died in 1866, was cognisant of the foregoing entry: that in consequence of the dissolution of the firm by Joseph’s death, the balance was struck in the. usual course of business, and at the same time a balance was struck on the books in favor of the other partners. In ascertaining the balance a contingent fund was set apart, as usual, for the purpose of covering debts that might be due, and it was more than enough for that purpose. Stock was taken and the books settled- as usual at the end of the year, only as Joseph died.during the year, the balance was carried to his estate instead of to his individual account.</p> <p>The court directed the jury to find a verdict for the plaintiff, reserving the point whether upon the whole testimony the plaintiff was entitled to recover.</p> <p>The verdict was for the plaintiff for $21,725.44.</p> <p>There was a rule for a new trial, which was afterwards discharged and judgment entered for the defendant on the point reserved non obstante veredicto, Judge Hare delivering the following opinion:—</p> <p>“Lewis, Joseph and George Senat and William Nichols were partners in trade, under the firm name of Senat Bros. & Go.</p> <p>“ During the year 1860, Joseph Senat died, and when it closed, the surviving partners balanced their books, and having ascertained how much was due to each of the members of the firm, credited the estate of Joseph Senat with the amount that would have been his if living. His representatives then brought assumpsit to recover this sum as a debt due by the partnership, and the question whether they could maintain the action or must resort to account render was reserved at the trial. The point has frequently been before the courts and always decided in the negative. For as the object of such an accounting is to ascertain what is due or coming to each of the parties from the assets of the firm, it cannot be interpreted as a guaranty that the assets will be adequate to pay the debt. The shares of the partners are reduced to a pecuniary standard for the purpose of fixing their relative value, leaving their absolute value to be determined by the event. If debts that have been estimated as good prove to be worthless, or unexpected claims are presented, the result may be very different from what the books of the firm indicate. If A., B. & C., who have been engaged in trade as copartners, meet to settle the affairs of the firm, and $20,000 is found to be due to each of them, there is obviously no promise either on the part of the firm collectively, or the partners individually, to pay A., B. or C. that or any other sum. Such an obligation would, if existed, give rise to a circuity of action rendering the contract nugatory, and bringing each of the parties to the position which he held when the proceedings were begun. It has accordingly been well- said, that to authorize a recovery under such circumstances, it must appear not only how much the plaintiff was to receive, but that the defendant bound himself absolutely to pay. It may well be that a partner, who stands on the face of the account as a creditor, has the bulk of the property of the firm in his hands, and would if it were turned into cash be largely a debtor. When, indeed, the transaction instead of being a settlement of accounts, is a sale of the interest of an outgoing partner to those who remain, in consideration of their assuming the liabilities of the firm and paying him what his share of the assets is supposed to be worth, the fulfilment of the contract may be enforced by an action of debt or assumpsit, as in other cases where property is transferred by one man to another. But to produce this result, the interest of the outgoing partner in the assets must cease, and he must agree to take the personal liability of the remaining partners in consideration of the relinquishment of his title to the property of the firm.</p> <p>“ The rule for a new trial is discharged, and judgment entered for defendant on point reserved.”</p> <p>The plaintiff took a writ of error, and assigned for error the entry of the judgment.</p>

<p>Certificates from Nisi Prius: Nos. 193 and 194, to January Term 1869.</p> <p>These were amicable actions and cases stated: In the first action, in which Jacob Demott, to the use of William L. Schaffer, was plaintiff, and John Rankin, defendant, the following facts were submitted: In the year 1856, Henry J. Williams and others conveyed to Josiah L. Haines a lot of ground on Wallace street, in the city of Philadelphia, subject to a yearly ground-rent of $198, payable in “ gold or silver lawful money of the United States,” the ground-rent being extinguishable upon the payment of $3300, “lawful money as aforesaid.” The ground-rent was afterwards so apportioned that a part of it amounting to $176.88, extinguishable upon the payment of $2948, became charged upon the westernmost portion of the said lot; the title to which became vested in William L. Schaffer, who afterwards sold and conveyed it to Jacob Demott in fee, clear and discharged from the payment of the ground-rent, and covenanted with Demott to procure a release and extinguishment of the ground-rent which had then become vested in the defendant, John Rankin.</p> <p>Schaffer, in pursuance of his covenant, applied to Rankin to execute a release of the ground-rent upon payment of $2948 in" legal tender notes; this was refused, Rankin demanding gold or silver coin, or its equivalent, and Schaffer paid under protest the additional sum of $1267.67, the amount of premium on $2948 in gold, Rankin agreeing, to refund it if it should be determined by the Supreme Court that the principal of the ground-rent was payable in legal tender notes. The deed extinguishing the ground-rent was then executed by Rankin, and the action was instituted to recover back $1267.67, paid as premium on the principal of the ground-rent in gold.</p> <p>The second action, in which Jacob Demott, to the use of William L. Schaffer, was plaintiff, and Henry J. Williams defendant, was instituted to recover back the premium paid upon the balance of the ground-rent of $8800, the same facts being submitted.</p> <p>In both actions judgment was entered pro formd for the plaintiff.</p> <p>The defendants had the cases certified to the court in banc, and assigned for error the entering of judgments for the plaintiff.</p>

<p>Error to the Court of Common Pleas of Wayne county: No. 397, to January Term 1868.</p> <p>This was an action on the case, to May Term 1866, by E. W. Earnham against The President, Managers and Company of the Delaware and Hudson Canal Company.</p> <p>The declaration set out, that on the 28th of April 1860, and long before the plaintiff was the owner in fee of a tract of fifty acres of land in Texas and Palmyra townships, Wayne county, on which are a saw-mill and water privilege; that the river Lackawaxen runs through his land and also land of the defendants; that they “ kept and continued, &c., and still do keep and continue, wrongfully and negligently, a certain dam and causeway, before then wrongfully and negligently erected, raised and built, in and across the said river or stream for a long space of time, by means of which the waters of said river, with the said dam and causeway, insomuch did obstruct and raise that they by means of such obstruction and raising, running over and through the banks thereof, the said fifty acres of ground did overflow and drown, and the said waters did set back into the mill-race, and upon the wheel of said plaintiff, in and at his said saw-mill, thereby destroying and interfering with the Said mill privilege and water power; whereby the plaintiff’s said land or ground became rotten, spongy and unproductive, and his water-power and mill privilege worthless, and the said plaintiff the whole benefit and profit of the said ground and water-power and mill privilege for a long time, &c., hath lost.”</p> <p>By Act of March 13th 1823, Pamph. L. 74, Maurice Wurtz, his heirs and assigns, were authorized to improve the river Lackawaxen or complete a slackwater navigation thereof, by dams, &c., to its mouth at the river Delaware. The act provided that if any person should be injured by any dams erected under the act, or the land of any person inundated, or any mill or other waterworks injured by swelling the water, and Wurtz, his heirs and assigns, could not agree with the persons injured for compensation, a jury should be appointed, — in the manner provided in the act,— to assess the damages, and if a land or mill owner should be apprehensive that his property should be injured by the dams, he might require Wurtz, his heirs or assigns to give security for the payment of damages that might thereafter be awarded, and afterwards Wurtz should not proceed with Iris works until security should be given.</p> <p>On the 23d of April 1823, the legislature of New York incorporated the defendants to construct a canal or slackwater navigation from the Delaware to the Hudson river. By the Act of April 1st 1825, Pamph. L. 141, the defendants, with the assent of Wurtz, were empowered to construct the works authorized by the Act of March 13th 1823. By the Act of February 9th 1826, Pamph. L. 25, the defendants were authorized instead of the slack-water navigation, “ to construct a canal navigation, to be fed by the waters of said river or some of its branches;” and damages for injury to property holders by the construction of the works were to be estimated as was ¡provided in the Act of 1823, and be paid by the defendants. The legislature of New York, on the 20th of April 1825, authorized the defendants to contract with Wurtz, &c. The Lackawaxen is a public highway.</p> <p>The defendants made a canal along the river from Honesdale to its mouth; it was opened for navigation in 1828, being of capacity for boats of about 30 tons burthen. The dam complained of was erected at the time of the construction of the canal, and has been maintained for supplying the canal with water. In 1847 the company commenced the enlargement of their canal, and completed it in 1850.</p> <p>The enlargement required an increase of supply of water, and in 1850 the defendants rebuilt and raised the height of their dams with brackets and slash boards across the Lackawaxen. By the Act of April 30th 1852, Pamph. L. 535, it was enacted: “ That the 18th section of an act entitled, &c., passed the 13th day of March 1823, which provides for the resumption by the state of the improvements of the Delaware and Hudson Canal Company, known as the Pennsylvania section of the Delaware and Hudson Canal, together with the corresponding stipulations, if any, in the supplements to said act, be, &c., repealed, and the said company are hereby authorized to conduct their business as they have heretofore done, according to their charter, and maintain- and use their works and appertenances as heretofore, without liability to account and surrender as provided for in the said 18th section of the aforesaid act,” &c.</p> <p>By the Act of September 20th 1866, Pamph. L. of 1867, p. 1524, it is enacted, “ that the damages which the defendants may be liable for from the construction of their works as the same now are or hereafter may be altered or extended, shall be secured and assessed in the manner provided” by the General Railroad Law of 1849.</p> <p>The mill property which was alleged to be injured, had been owned by Cornelius Hornbeck up to December 1st 1854, when it was conveyed to the plaintiff. The plaintiff gave evidence that prior to the enlargement of the canal in 1850, there was no difficulty in running the mill; that after that, until 1858, the water backed into the tail race and impeded the motion of the mill, and in freshets entirely impeded the mill; in summer the defendants raise the water for the canal by putting on slash boards; the rafting channel of the dam is on one side of the stream, and the high part of the dam is about three feet higher than the rafting channel. He gave evidence also of the destruction of a spring, and injury to his land by the backing of the water.</p> <p>The plaintiff requested the court to charge the jury as follows : — ■</p> <p>1. That the Act of 1823 incorporating the defendants, and providing for the assessment of damages, was intended to apply to the original construction of their works, and does not apply to a case like the present, where, after they had constructed and occupied their canal for a period of twenty-two years, they doubled the size of their canal, and built a dam so high, if the jury believes the evidence, that they flowed waters where they never flowed before.</p> <p>2. That the damages in this case are not such as could be determined by a view, under the Act of 1823, but were produced, if the jury believe the testimony, by the repeated and careless additions to the dam, such as the putting on of slash-boards at an unusual and unnecessary height.</p> <p>3. -That the view to be had under the Act of 1823, is applicable only to the assessment of damages occasioned by the original construction of their canal, or some repairs of the same.</p> <p>4. That if, from the evidence, the jury believe that from 1850 to' 1858 the defendants carelessly, unnecessarily or negligently raised their dam below the plaintiff’s property so as materially to impair his water-power, such damages are not by law necessarily to be assessed under the supplement to their charter of 1866, but may be recovered in the present action.</p> <p>5. That compensation for damages occasioned by the construction of the defendants’ canal in 1828, is not compensation for damages occasioned by the careless, unnecessary or negligent raising of their dam below the plaintiff’s property in 1850, and that if the jury believe the plaintiff’s mill-power was materially injured by such raising of the dam, he is entitled to recover in the present action.</p> <p>6. That the original charter of defendants of 1823, under which they built and used their canal up to 1854, gave them no right to injure the plaintiff’s mill-powerin 1854 and subsequently, by raising their dams in the river Lackawaxen, without rendering them liable for such injury, and that if the jury believe from the testimony, that the defendants by thus doing, have injured the plaintiff’s mill-power, they are liable therefor in the present action.</p> <p>7. That under the Act of 1823, incorporating defendants, and under the Act of 1849, extended to them by their supplement of September 20th 1866, there cannot be repeated assessments of damages to the same property, and that if the jury believe from the testimony, that the plaintiff’s mill property has been injured by the raising or erection of a dam in the river Lackawaxen since 1850, the plaintiff has no remedy therefor, except by an action at common law.</p> <p>8. That, if the jury believe, from the testimony, that the defendants, in raising their dam since 1850, built it unnecessarily high, and thus flowed the water back upon the plaintiff’s mill-' power, so as materially to injure the same, it was such a negligent construction of their works and use of their franchises as to render them liable for such injury in the present action.</p> <p>The court, Linn, P. J., of the Twenty-fifth District, charged: * * * “ The plaintiff not having produced any evidence from which you can find that the alleged injury complained of by him, resulted from a careless or unskilful use of the defendants’ works, or from any abuse of the privileges or neglect of the duties belonging to the company, in no aspect of the case has the plaintiff shown a right to recover damages in this action. It is therefore your duty to render a verdict for the defendants.</p> <p>“ This instruction renders it unnecessary to answer the written points put by the counsel for the parties respectively.”</p> <p>The verdict was for the defendants. The plaintiff took a writ of error, and assigned the charge of the court for error.</p>

<p>1. The 6th section of Act of April 9th 1760 (shooting pigeons, &c., in streets, &c.), is not obsolete.</p> <p>2. The essentials of a summary conviction are an information, that the defendant be summoned or have notice of the charge and an opportunity to make his defence, the evidence be such as the common law approves, unless the statute directs otherwise; a conviction, judgment and execution accord-mg to the common law, influenced by the special authority under the statute, and a record of the whole proceedings setting forth the particular eireumstances, so as to appear that the justice has conformed to the law and not exceeded his jurisdiction.</p> <p>3. The proceeding under the 6th, 7th and 8th sections of the Act of 1760, is not by a qui tarn action; it should be brought in the name of the Commonwealth.</p> <p>4. The proceeding may be by warrant or summons at the discretion of the justice; but proceeding by warrant should be exercised with caution and moderation.</p> <p>5. Where the person is a householder or inhabitant not likely to flee, summons is to be preferred, unless otherwise directed by the statute.</p> <p>6. The essential part or particular substance of the whole testimony ' should appear in the record; the effect or result of the evidence is insufficient.</p> <p>7. The offence prohibited by the 6th section of the act is shooting with “ a fire-arm,” and the penalty is to be measured by the number of shots, not the number of birds killed.</p> <p>8. It is not necessary that the conviction should state the alternative duration of imprisonment on failure to pay or furnish a sufficient distress.</p> <p>9. Imprisonment is part of the warrant of execution, not of the sentence, and the warrant must set forth the alternative imprisonment.</p>

88, to July Term 1868. In the court below this was an issue from the Orphans’ Court to the Court of Common Pleas of Luzerne county.

330, to January Term 1869. The bill in this case was filed, October 29th 1867, by Julia E. Miner against Jesse Thomas, and Parrish & Drake, who were lessees of Thomas. The bill set out as follows: — Samuel G. Miner died intestate on the 1st of October 1847, seised in fee of a tract of land in Plains township, Luzerne county. He left to survive him a widow, Julia E., the plaintiff, and two children, Henry T. Miner and Mary E. Miner, and certain collateral heirs.

<p>1. Auditors settled the account of a township treasurer in 1862. The treasurer carried the balance against him into the account of next year; the auditors settled his account of that year, finding a smaller balance, “subject to revision.” Held, in a suit against the treasurer, that the township could recover the last balance.</p> <p>2. The settlement of 1863 being “subjectto revision” was not final.</p> <p>3. The settlement of 1862 was conclusive, and the settlement of 1863 was primá, facie evidence that it had been reduced by payments.</p>

364, to January Term, 1869. This was an action of trespass d. 5. a. by John B. Kenyon against Philander Gould and others, issued May 12th 1866. The parties filed a case stated in the suit, which embodied these facts: — Gould, one of the defendants, and his wife, sued Kenyon the plaintiff in slander, and obtained a verdict, on which judgment was entered. An execution was issued on the judgment, and -divers goods of Kenyon were levied on, which were appraised at $271.50.

124, to July Term 1868. On the 3d of January 1866, Charles Pattison filed a hill against C. C. B. Walker, Austin Lathrop, Jr., and Nelson Somers.

<p>1. Executors acting under letters from another state cannot maintain an action in Pennsylvania.</p> <p>2. McCullough v. Young, 1 Binn. 63, is not law in Pennsylvania.</p> <p>3. “ The county where the principal part of (decedent’s) goods, &c., shall be” in Act of 1832 (Registers, &e.), refers to estate in the Commonwealth, and not by comparison, with the estate outside of it.</p> <p>4. The estate of a foreign decedent in Pennsylvania being only-one debt, administration should be granted by the register of the county where the debtor resided.</p>

<p>Error to the Court of Common Pleas of Wayne county: No. 186, to January Term 1869.</p> <p>This was an action on the case, commenced December 26th 1864, by Franklin A. Seely, Henry M. Seely and George D. Seely against Levi H. Alden. The plaintiffs were owners in fee of a water-power and dam on the Lackawaxen creek, and the defendant was the owner and occupier of a tannery higher up the stream.</p> <p>The declaration charged the defendant with throwing tan-bark into the stream, “ which, being carried down by said stream, has been deposited upon said lands and in said mill-pond of the plaintiffs, thereby filling up and obstructing said pond, interfering with the free and beneficial use by said plaintiffs of the waters of the said west branch of the Lackawaxen, and permanently injuring the value of all said property belonging to said plaintiffs, to the damage of said plaintiffs,” &c.</p> <p>On the trial before Barrett, P. J., the defendant admitted that he had been in the habit of discharging tan-bark into the stream, and that a portion of it had been deposited into the plaintiffs’ pool. The plaintiff proposed to ask a witness “ at what he estimated the value of the property as affected by the deposit as compared with the value of the property without the obstruction.” Also, “ How much it would cost to remove the tan-bark deposited in the pool ?” Also, “ What the whole extent of the injury was in market value, or otherwise, during and at the expiration of the time aforesaid, as measured by dollars and cents ?”</p> <p>All these questions were objected to by the defendant, rejected by the court, and several bills of exceptions sealed. There was other evidence of damage to his pool, &c.</p> <p>The defendant gave evidence that there were a number of other mills, tanneries, &c., on the stream above the plaintiffs’ dam from which tan-bark, shavings, saw-dust, &c., are discharged into the stream.</p> <p>The plaintiffs asked the court to charge, “ that the proper measure of damages in this case, is the difference between what the property would have sold for as affected by the deposit of tanbark in plaintiffs’ dam and what it would have brought unaffected by it.”</p> <p>The court charged:—</p> <p>“ The title in the plaintiffs is admitted. It is also admitted that the defendant is the owner of a tannery; and that he has, since 1853 and up to the commencement of this suit, been in the habit of discharging into the stream more or less tan-bark, and that a portion of it found a deposit in plaintiffs’ mill-dam. The defendant admits the trespass and his liability for nominal damages.</p> <p>“ This leaves nothing to go to the jury but the question of damages. They have viewed the grounds and heard the evidence. If the plaintiffs are entitled to more than nominal damages, it is the duty of the jury to find the amount. ‘</p> <p>“ [The true measure of damages under the law, is the actual amount sustained by the plaintiffs during the years complained of. The value of the water-power during that period, as it was, or might have been enjoyed by the plaintiffs unaffected by the deposit of tan-bark, and its value as affected by it, is a correct rule for estimating damages.] All the inconveniences_ to which the use of the water-power was subjected should be considered. If it caused delay or trouble in getting logs to the mill, that is a fair item to consider. If it obstructed the gates or water-courses, or if it lessened the capacity of the pool for holding water or storing logs, it was an injury to the enjoyment of the property. If the mills had to stop for the purpose of clearing out the deposit, it would cause delay and hindrance, and therefore form an item in measuring damage. If there was an annual amount of damage done during those years, you may estimate it in that way. [The plaintiffs should be compensated for whatever inconvenience they were subjected to in the enjoyment of their rights during those years.] The actual damage sustained is the true rule, and should form the basis for your verdict.</p> <p>“ [The value of the real estate -before and after the alleged injury cannot be considered. The difference in value is not the correct rule.] We have been asked so to instruct you, but decline to do so.</p> <p>“ The plaintiffs are entitled to your verdict for nominal damages under any view you may take of the evidence. If actual damage has been sustained, they are entitled to your verdict for that amount, with interest upon the amount at least from the bringing of this suit.”</p> <p>The verdict was for the plaintiffs for $1450.</p> <p>He took a writ of error and assigned for error,</p> <p>1, 2 and 3. The rejection of their several offers of evidence.</p> <p>4. Refusing to affirm their point.</p> <p>5, 6 and 7. The parts of the charge included in brackets.</p>

<p>1. A bill by Winters alleged that Wileox held a judgment against Thompson, and plaintiff as surety, that Wileox and Thompson agreed that Thompson's property should be sold at sheriff's sale, bought in by Wileox at á low price, and the judgment satisfied; that the land had been sold to Wileox, who did not satisfy the judgment, but afterwards assigned the judgment to Chase, who issued execution, and the plaintiff paid the amount. The bill showed that the plaintiff was not a party to the agreement, and none of the consideration moved from him. Held, that there was no privity of contract between the parties, and no suit at law or equity could be maintained by plaintiff against Wilcox.</p> <p>2. The bill alleged that the plaintiff had been informed by Wilcox and Thompson of the arrangement, and in consequence did not attend the sheriff's sale and bid, so as to cover the judgment, as he would have done if there had been no agreement, but did not allege fraudulent combination, misrepresentation or deceit, to prevent him from attending the sale and to compel him to pay the judgment. Held, that if he was injured by not attending and bidding, it was damnum absque injuria, and no action would lie.</p> <p>3. If there had been such fraud, his remedy would be at law, not in equity.</p> <p>4. The only ground on which the plaintiff could recover back the money paid to Chase, was that the principal debtor’s land had paid the judgment, and that he had paid the money to Chase without a knowledge of the facts.</p> <p>5. Having paid the money with a knowledge of the facts, it was to be treated as voluntary. He might have applied to the court before payment and had the judgment opened.</p>

<p>1. In a contract for salo of a wife’s land her name preceded her husband, and the contract contained a covenant of warranty: this was notice to the purchaser that it was the wife’s land.</p> <p>2. The contract was signed by the husband and wife, but was not acknowledged : Held, that the wife was not bound.</p>

299, to January Term 1869. In the court below John Barry to the use of J. M. Donley, brought an action of debt against the borough of Susquehanna Depot. The writ was issued August 6th 1867. The suit was founded on the following bond :— “ No 28.

<p>Error to the Court of Common Pleas of Luzerne county: No. 301, to January Term 1869.</p> <p>This was an action of ejectment brought January 30th 1866, by Aaron Brown and Esther his wife, in her right; D. D. Headley and Jane his wife, in her right; John Gould, guardian of Elizabeth Atherton, in her right; and Aaron Brown, in his own right, against John J. Shonk, for a lot of ground situate in the township of Plymouth, county of Luzerne, containing 142 acres 24 perches.</p> <p>The action was for the recovery of an undivided seventh part of the coal and the undivided eleventh part of the surface of the land, which is described in the writ and of which Jacob Gould died seised. By his will, dated June 14th 1834, Gould devised as follows :-— * * * .</p> <p>“ Fourthly. I give and bequeath unto my seven children, four of which are sons, the eldest is John Gould, and Thomas Gould and Samuel Gould and Jacob Gould, and my three daughters, Charity Pringle, wife of Benjamin Pringle, Ann Atherton, wife of Caleb Atherton, and Elizabeth Rickard, wife of John Rickard, all my real estate to be divided into eleven shares, equal in value. To my son, John Gould” (and so to his other sons) “and to his lawful heirs, I will and bequeath two shares. To my daughter, Charity Pringle, wife of Benjamin Pringle, I will and bequeath one share, &c.” (in the same manner as Ann Atherton’s). “ To my daughter, Ann Atherton, wife of Caleb Atherton, I will and bequeath one share to the sole and separate use of her and her lawful heirs, so that my daughter Ann cannot sell or convey the same, but to descend to her lawful heirs, and so that the said real property cannot be taken, sold or rented or leased from her or her heirs, to pay any judgment or demand that may be against her' said husband.</p> <p>“ To my daughter, Elizabeth Rickard,” (as Ann Atherton’s). * *</p> <p>“ Sixthly. I will and bequeath unto my seven children, John Gould, Thomas Gould, Samuel Gould, Jacob Gould, Charity Pringle, Ann Atherton and Elizabeth Rickard and their lawful heirs, all the coal-mines, which are now or may hereafter be found on any part of my landed property, each of my children or their legal representatives to hold one-seventh part, or each to share alike in the interest or profit thereof, and that there shall be a reserve made in the division of my real or landed property sufficient for all necessary roads to go to and from said coal-mines, and sufficient land for to deposit all coal and coal-dirt, and the like that is necessary, and that each one shall have an equal right to dig or mine coal at any time, and each one shall be at their proper expense of keeping said coal mine or mines in repair, according to what coal they may dig or mine, and it is to be understood that neither of my children or their lawful heirs or representatives shall have a right in any one year to dig or mine more than two ark-loads of coal more than the other heirs, and when any one shall dig or mine more coal, they shall pay unto the other heirs, what would be over and above their share or part according to the price of coal not less than eighteen and a half cents, and not more than twenty-five cents per ton, and it is further understood that the coal-beds or mines are to be worked in a workmanlike manner, so as not to damage the said mines or coal-beds, the one who does the same shall pay to the others all reasonable damages, and the others shall in this case have a right to mine or dig more coal if necessary than two ark-loads, and a sufficient to pay all reasonable damages, or put the said coal-mines in good order to work.</p> <p>“ Seventhly. As it respects the division of all my coal-mines and the interest therein, which I have given and bequeathed unto my three daughters, — Charity Pringle, Ann Atherton and Elizabeth Rickard, — and their legal heirs, that they shall hold their interest in each and every; and under each and every restrictions, as I have devised my real and personal property to them the same as though it was particularly mentioned, reference being had to the fourth article of this my will, with this difference: each daughter is made equal to each son, and holding equal right and interest, each having one-seventh part or share in the coal mine or mines, with all the other privileges of roads,” &c.</p> <p>The testator on the 29th of September 1847 added to his will a codicil, as follows: — “ I, Jacob Gould, the within-named testator, do hereby make and publish this codicil to be added to my last will and testament, in manner following, to wit: Whereas, since the foregoing will was made, I have purchased more real estate, to wit, &c. * * My will and desire is, that in the division of my real estate among the children, that my son Jacob shall have the farm above mentioned, and in the valuation, if said farm should be considered worth more or less than two shares of my real estate, that he pay to the other heirs, or receive from them to make his two shares equal with the others. I hereby give and bequeath unto my children hereinbefore named all the real estate that I am now seised of, as well as all other real estate that I may hereafter purchase or become seised of at my decease. And it is also my desire and intentions in this my last will and testament not to invest the fee simple of my real estate in any said sons and daughters, my said several sons, to wit: John, Thomas and Jacob cannot dispose or alienate, as well as my daughters, any part or parcel of real estate, all of which is to descend to their respective heirs and legal representatives.” * *</p> <p>The testator died March 9th 1849. The will and codicil were proved on the 21st of the same month.</p> <p>On the 2d of March 1854 Ann Atherton with her husband conveyed all her estate under the will to Charles Dorrance. Dorrance went into possession.</p> <p>Ann Atherton died March 13th 1856; her husband died some years after her. Dorrance continued in possession until April 1864, when he conveyed to John J. Shonk, the defendant. The plaintiffs are the children and heirs of Ann Atherton.</p> <p>The questions were, what estate was vested in Ann Atherton by her father’s will, and whether she had power to convey her estate.</p> <p>On the trial it was agreed.that the court should charge the jury to find for the plaintiffs, reserving the questions arising under the will of Jacob Gould and the deed of Ann Atherton. There was a verdict accordingly. The court (Conyngham, P. J.) afterwards entered judgment on the reserved questions for the plaintiffs for one-eleventh undivided part of the surface of the land, and for one-seventh undivided part of the underlying coal, and for the defendant for the remainder of the tract.</p> <p>In his opinion Judge Conyngham held that Mrs. Atherton took a fee simple in the devise, and that her conveyance to Dorrance was ineffectual to pass the estate, it having been devised to her for her sole and separate use, with restriction as to her power of sale; and that the Act of April 2d. 1863, § 1, Pamph. L. 533, Purd. 1306, pi. 2, did not validate the sale.</p> <p>The defendant took a writ of error, and assigned for error the entry of the judgment as above stated.</p>

<p>1. A paper pinned to a deposition, not referred to in it, and without evidence that it had been attached by the justice, was not an exhibit sufficiently identified to be admissible in evidence.</p> <p>2. A release by a party to a witness of all claims, &c., against witness under a warranty in a deed, appearing on its face to have been regularly</p> <p>executed and acknowledged before the taking of a deposition, made the witness competent although not attached to his deposition so as to identify it.</p> <p>3. Such release was a deed concerning lands, &c., and was entitled to he recorded.</p> <p>4. A general warranty is a real covenant going with the title and passes to the assigns by its express terms.</p> <p>5. A witness testified that a paper had been sent to an attorney years before, that search had been made for it and it could not he found, that an exhibit attached to his deposition was an exact copy. Held, that the copy wTas admissible in evidence.</p> <p>6. A leading question is one which indicates the answer the party desires.</p> <p>7. A mere reception of the profits and claim of land by one co-tenant will not alone prove an ouster. There must be positive acts or a line of conduct indicating an intention to exclude the co-tenants.</p> <p>8. Open, notorious and uninterrupted possession of the whole by a tenant in common for twenty-one years, claiming the land as his own and taking the whole profits exclusively is evidence from which a jury may draw the conclusion of ouster and adverse possession.</p> <p>9. In cases of express trust or where a direct confidence is created by tbe instrument, the evidence to show a denial of the relation must always he stronger than where the relation is less direct and confidential, as between eo-tenants.</p> <p>30. In all oases it must appear that the relation has been severed by such positive acts or continued conduct as tend to bring home notice of the change in the relation and that the holding is adverse.</p>

” On the 24th of October 1866 the township auditors of Hanover township reported, setting out the receipts and expenditures by the treasurer in relation to the bounty fund of that township, and found that there was a balance of $1675.66 due to him. Paul Gangewere and others, on behalf of the township, appealed from the report and filed exceptions.

263, to January Term 1869. • This was an action of assumpsit brought December 15th 1866, by Thomas Benninger against Hiram J. Hankee and James Brown. It appeared by the evidence that on the 9th of February 1865, John Kern leased to George Newhard and Thomas Benninger for twelve years, a piece of land for the purpose of opening a slate quarry, for a certain rent per square foot of slate taken out.

<p>Error to the Court of Common Pleas of Clarion county: No. 318, to January Term 1869.</p> <p>This was an action of debt, commenced August 29th 1867, by Francis Stocker, late sheriff of Carbon county, against Jonathan Brock, O. H. Wheeler, E. W. Harlan and Conrad Loew, who survived Amos Lentz. Due service of the writ was made on all the defendants except Jonathan Brock, as to whom the sheriff returned “nihil.”</p> <p>The declaration was against the defendants jointly on a bond dated March 13th 1858, in the penalty of $3000, conditioned to indemnify the plaintiff as sheriff for selling certain goods levied on as the property of Almira Knowles and William Reed. The declaration averred that he had sold the goods, and in an action of trespass against him for so doing a judgment amounting to $2071, besides costs, had been recovered against him and paid. Loew, one of the defendants, pleaded “ Non est factum.”</p> <p>The following are the material points of the bond:—</p> <p>“ Know all men by these presents, that we, Jonathan Brock, O. H. Wheeler, E. W. Harlan, Amos Lentz and Conrad Loew, are held and firmly bound unto Francis Stocker, Escp, sheriff of the county of Carbon, in the sum of three thousand dollars, to be paid to the said Francis Stocker, Esq., his certain attorney, &c., to which payment well and truly to be made, we do bind ourselves and each of us, our and each of our heirs, executors and administrators and every of them, jointly and severally, firmly by these presents. Sealed with our seals, dated this 30th day of March, a. D. 1858.</p> <p>“ The condition of the above obligation is such, that whereas a writ of fieri facias has lately issued, &c., at the suit of Maria Brock, directed to the above-named Francis Stocker, sheriff, &c., commanding- him to levy on the goods,' &c., of Almira Knowles and William Reed, as well personally as also as administrators of said A. L. D. Kurtz,” &c., and the sheriff had levied on certain goods, specifying them: “ And whereas the said sheriff does not certainly know what are the goods and chattels or effects of the said Almira Knowles and William Reed, personally and as administrators as aforesaid.” The condition was that Maria Brock should indemnify Stocker for all damages, &c., on account of levying on and selling the goods, &c. The bond was signed</p> <p>“Jonathan Brock, [Seal] per his authorized Attorney, O. H. Wheeler,”</p> <p>and by all the other parties.</p> <p>The subscribing witness to the bond testified that it was executed in his presence by all the parties; “ Jonathan Brock did not sign the bond. It is signed by O. H. Wheeler as attorney for Brock.”</p> <p>The plaintiff offered the bond in evidence; it was objected to by Loew, admitted by the court, and a bill of exceptions was sealed.</p> <p>The jury by agreement of the parties found the following special verdict, October 9th 1868:—</p> <p>“We find the bond in suit was not executed by Jonathan Brock himself, and there is no evidence that O. H. Wheeler was authorized to sign his name. That the signature to the bond is as follows : ‘ Jonathan Brock by his authorized attorney, O. H. Wheeler,’ and purports to be under seal. That the bond is properly executed as to the other obligors. That an action was brought against Francis Stocker, sheriff of Carbon county, and a recovery had against him which with costs and interest amounts to more than $3000.</p> <p>“ If the court be of opinion that the plaintiff can under the law recover against O. H. Wheeler and Conrad Loew in this case, we find for the plaintiff the' sum of three thousand dollars. If the court should be of the contrary opinion then we find for the defendants.”</p> <p>January 5th 1869, the plaintiff moved “ to amend the record by striking from the 3ame the name of Jonathan Brock, whose name was therein inserted by mistake.”</p> <p>The court (Barrett, P. J.) on the 9th of January 1869, entered judgment on the verdict for the plaintiff; and same day against the objection of the defendant, allowed the amendment moved for on the 5th.</p> <p>Loew took out a writ of error, and assigned for error—</p> <p>1 and 2. Admitting the bond in evidence.</p> <p>3. Entering judgment on the special verdict.</p> <p>4. Allowing the amendment of striking Brock’s name from the record after the verdict had been rendered.</p>

357, to January Term 1869. This was an indictment against Williams Brooks and Charles Orme for the murder of Theodore Brodhead. The indictment was found September 30th 1868, and the prisoners were tried December 28th 1868. Thomas Brodhead, a brother of the deceased, was the keeper of an hotel in Dutotsburg, Monroe county.

<p>1. Marriage in Pennsylvania is a civil contract and is provable in all civil actions by cohabitation, reputation, acknowledgment of' the parties, reception of the family and any other circumstance from which it may be inferred.</p> <p>2. The judge below was not asked at the time of trial to reduce his charge to writing or to file it, but some time after the trial it was filed at the request of a party, no bill of exceptions to it being sealed. Meld, on error, that the charge was not before the Supreme Court.</p> <p>3. A. man was found dead on a railroad where it crossed a street, having been killed by a train of cars. Meld, that whether he was lawfully on the railroad and whether his own negligence contributed to his death were for the jury.</p> <p>4. It is the duty of one lawfully attempting to cross a railroad to stop and look both ways and listen for approaching trains ; but positive evidence that he observed such precautions is not necessary.</p>

<p>Error to the District Court of Carbon county: No. 326, to January Term 1869.</p> <p>The proceedings in this case were commenced in the Court of Common Pleas of Monroe county, for the assessment of damages for injury done by the Delaware, Lackawanna and Western Railroad Company in locating and constructing a railroad through the land of Deborah Burson and Danelia S. Burson. On the 1st of August 1861, they presented a petition to the court, setting out that the company about the 1st of August 1853, had located their road for about 120 perches through a tract of land belonging to the petitioners, and containing 341 acres, and were engaged in constructing it until about the 1st of May 1856; that at the time of locating and constructing the road, Danelia owned and possessed the land until the death of James Burson, which occurred February 14th 1855, and that Deborah owned the fee in remainder and has been in possession since his death; that the parties could not agree, &c.; and praying for the appointment of three men to ascertain and report the damages sustained by the petitioners.</p> <p>The defendants objected to the appointment, because the Delaware and Cobb’s Gap Railroad Company and the Lackawanna and Western Railroad Company, both being corporations of this Commonwealth, were by an Act of Assembly passed March 11th 1853, consolidated into one company, the defendants; that before the consolidation, viz., on the 12th of February 1853, an agreement in writing was made between Danelia and Deborah Burson of the one part, and the Delaware and Cobb’s Gap Railroad Company of the other, by which in consideration of one dollar, and that the company would build the road through the lands of the Bursons on a line described in the agreement, the Bursons agreed to release all claim for damages, and if the company should after-wards construct the road on another line, the agreement should be surrendered; and that the railroad has been constructed on the line described in the agreement. Also, that Deborah and Danelia Burson on the 18th of May 1858 instituted an action of trespass on the case against the defendant, in which no declaration had been filed, but as the defendants believe was for damages for constructing their road, and that this action was still pending.</p> <p>On the 31st of March 1862 the court overruled the objections, and appointed three viewers. For the same reasons the company objected to the viewers proceeding under the order of the court. The objections were overruled by the viewers, and the defendants proceeded in the examination of witnesses, reserving the right to make the same objections at any subsequent stage of the proceedings.</p> <p>On the 9th of October 1862 the viewers reported in favor of the petitioners, assessing the damages at $800. The defendants, on the 7th of November 1862, filed exceptions to the report for the same reasons as were contained in their objections, with two others, viz.: that the report did not state the quantity, quality and value of the land taken, and that there was no draft accompanying the report. Same day the defendants appealed from the report of the viewers. November 8th the petitioners appealed from the report of the viewers.</p> <p>The court afterwards made the following order:—</p> <p>“ And now, to wit: January 2d 1864, for the purpose of being able to meet the questions at issue under this motion in better form, the exceptions are dismissed. As appeals are pending, this course is adopted only for the better trial of the question; without therefore expressing at this time an opinion as to the merits of the motion, it is overruled.”</p> <p>On the 26th of May 1864 the defendants pleaded “ not guilty.” They afterwards, December 28th 1864, pleaded “not guilty” and release, and also a special plea averring the facts set out in their objections to the appointment of viewers.</p> <p>On the same day, before calling the jury, the defendants moved the court to require the plaintiffs to elect between proceeding to trial under these proceedings and their action on the case. The motion was overruled. Under objection by the defendants the plaintiffs replied that at the time of the agreement Deborah Bur-son was a married woman. The plaintiffs also moved to amend the proceedings by striking out the name of Danelia S. Burson, and the amendment was allowed against the objection of the defendants. The jury found for the plaintiffs $1892.50. A new trial was granted on motion of the defendants. On the 14th of March 1865 the proceedings were removed by the defendant to the Court of Common Pleas of Carbon county. On the 16th of May the defendants pleaded the Statute of Limitations. On the trial a verdict was found for the plaintiffs for $3140, which was after-wards, on motion of the defendants, set aside, and a new trial awarded. On the 31st of December 1866 the death of Deborah Burson was suggested, and Stroud Burson and Daniel S. Burson, her executors, substituted.</p> <p>It is necessary for a proper understanding of the case to refer to the following Acts of Assembly:—</p> <p>On the 7th of April 1832, Pamph. L. 321, the Liggett’s dap Railroad Company was incorporated, and in the 22d section of the act it was provided, in relation to damages to landholders, that if the parties could not agree upon the amount of damages or upon persons to assess them, the Court of Common Pleas of the proper county should appoint “ three disinterested men to ascertain and report what damages had been sustained by the landowners,” &c., and it was further provided that either party might appeal to the court within thirty days after the report of the viewers should have been filed. The 38th section provides that “ no suit shall be brought for any penalties incurred” by the act unless “commenced within six months after the offence committed or the cause of action accrued.”</p> <p>By the 23d section of the Act of April 16th 1838 under which the Pennsylvania Coal Company and other companies were incorporated, it was provided that the Pennsylvania Coal Company should not enter upon lands, &c., until the compensation for injury should have been ascertained and paid or security given ; if the parties could not agree as to the amount, &e., six persons should be chosen to estimate the damages; but if the parties could not agree on the persons, the proper Court of Common Pleas should .appoint six disinterested persons to estimate the damage, &c., with right to appeal in thirty days after filing the report.</p> <p>Besides the provisions of the 11th section of the General Railroad Law of February 19th 1849, Pamph. L. 84, Purd. 839, pi. 13, for assessing damages, it is enacted in the 14th section of the same act, Purd. 842, pi. 27, that no suit shall be prosecuted against a railroad company incorporated under that act for any penalty incurred under it unless the suit “ be commenced within two years after the offence committed or the cause of action accrued,” &c.</p> <p>By the 2d section of a supplement to the act incorporating the Pennsylvania Coal Company, passed March 7th 1849, it is provided that if the parties cannot agree as to the damages, the company shall tender a bond for the damages, and if the parties injured refuse to accept the bond it shall be presented to the Court of Common Pleas, and when approved by them shall be filed for the benefit of the parties interested, and the company may then proceed with the construction of their road.</p> <p>On the 7th of April 1849 “ The Delaware and Cobb’s Gap Railroad Company” was incorporated, subject to the General Railroad Law of 1849.</p> <p>The 2d section of the Act of April 6th 1850 provided that whenever the Liggett’s Gap Railroad Company could not agree with parties injured, &c., the company might tender a bond and in all respects proceed as is provided in the 2d section of the supplement of March 1849 to the act incorporating the Pennsylvania Coal Company.</p> <p>By the Act of April 14th 1851, the name of the Liggett’s Gap Railroad Company was changed to “ The Lackawanna and Western Railroad Company.”</p> <p>By the 1st section of the Act of March 11th 1853 consolidating this company with the Cobb’s Gap Company, it was provided that the property, corporate powers, &c., of the latter company be merged in the former, “ except so much of said powers, rights and privileges as conflicted, in which case the conflicting portion of the Act incorporating the Delaware and Cobb’s Gap Railroad Company, and its several supplements, were repealed, and all provisions of law relative to the Lackawanna and Western Railroad Company, not thereby altered or supplied, should remain in full force.” The name of the consolidated company was changed to “ The Delaware, Lackawanna and Western Railroad Company.”</p> <p>On the trial before .Barrett, P. J., it was admitted that on the 12th of February 1853 (the date of the release set out in the defendants’ plea), Deborah Burson was the wife of James Burson; he died October 18th 1855, and she died August 1866 ; also that she owned the reversion of the land in fee, that Danelia Burson and her sister Caroline Hollingsworth each owned half the estate in the premises for the life of James Burson. The plaintiffs then offered in evidence the proceedings (above given) to assess damages; the defendants objected 'to their admission; the court received them and sealed a bill of exceptions. The plaintiffs then gave evidence as to the damages sustained by them, and rested. The defendants gave in evidence the several Acts of Assembly above cited, and also gave evidence on the question of damages. They offered to prove that the plaintiffs’ property was enhanced in value by building the railroad, and the extent of the enhancement from 1852 to August 1861, the time when the petition for viewers was presented. They further offered to prove that in 1864 Deborah Burson sold 106 acres of the land for $8000 for the purpose of affecting the value of the land in 1856. They also offered in evidence the agreement and release set out in their plea, &c. The instrument was executed by Deborah Burson and Danelia Burson, but not by James Burson nor Caroline Hollingsworth who were both living, with proof that James Burson, the husband, was present at the wife’s execution of the release and" assented to it; that both of them acquiesced in the building of the railroad, made no objections'to it nor made any claim for damages within six years from its location and building. To these offers as they were respectively made, the plaintiffs objected ; the offers were rejected, and the court sealed several bills of exceptions.</p> <p>The following are points submitted by defendants, which were negatived by the court:—</p> <p>1. The proceedings in this case are irregular, having been commenced under an Act of Assembly not applicable to this case, and therefore the plaintiffs cannot recover.</p> <p>2. If the provisions of the General Railroad Law of 1849 are applicable to this case, then the plaintiffs cannot recover for the reason that the proceedings were not instituted within two years from the accruing of the cause of action.</p> <p>9. Under the evidence in this ease the plaintiffs’ entire cause of action accrued, and the statute began to run more than six years before the commencement of these proceedings. That before that time the road having been surveyed and located the right of the plaintiff to sue for damages was complete, and she cannot recover in this proceeding because more than six years have elapsed from the location of the road, and from the death of her husband, James Burson.</p> <p>10. The proceedings in this case having been instituted under the Act of 7th April 1832, incorporating the Liggett’s Gap Railroad Company, the plaintiffs cannot recover, for the reason that more than six months had elapsed after the cause of this action accrued, and after she became discovert before suit was brought or proceedings instituted.</p> <p>The court referred to the evidence, and amongst other things said to the jury: * * * “ The suit is well brought, the proceedings are regular, the title to the land has been admitted to be in the plaintiff; the company acknowledge its responsibility for any damages done. This leaves but a question of fact to go to the jury. Has the property been damaged by the construction of the road or has it not ?” * * *</p> <p>“ The advantages to the property as well as the disadvantages, are both to be taken into consideration. .The value of the whole property as unaffected by the road, and as affected by it, is the true standard. The market value of this property in 1852 should be ascertained, if possible, from the evidence. That is', the value of the entire property before the road or the prospect of the road had produced any effect upon it. Then the value of it immediately after the completion of the road in 1856, and if this can be done, it should settle the question. * * * A claim is made for the fencing. You cannot allow for the fence because it was built by the company. Nor can you allow directly a sum of money, the interest-of which would keep it up perpetually. Nevertheless you may on such a calculation reach the value of the property. If the fence was rendered necessary and to be kept up for all time, it would be an increased burden upon the owner and to its extent would detract from the market value of the whole property. In arriving at the extent of the burden it is proper to take the fencing into account. * * * If taking into consideration the disadvantages in occupying the farm and the advantages resulting from a rise in value of the whole property at the time of the completion of the road, you find a balance in favor of plaintiffs, or in other words, a decrease in the value, your verdict should be in favor of the plaintiffs for that amount, with interest from July or August of the year 1856, to the present time.”</p> <p>The court concluded the charge, saying: — ■</p> <p>“ If you return a verdict for plaintiffs you must state the items upon which it is based; that is, you should state an account showing the items of damages and the amount allowed upon each, then deducting the advantages resulting to the property and show the balance. You can add interest only upon the balance thus shown.”</p> <p>The jury found a verdict in these words:—</p> <p>“Verdict in favor of plaintiff — Damage, . . $900</p> <p>Interest for maintain fence on ... 400</p> <p>Inconvenience,......1600</p> <p>2900</p> <p>Increase 175 acres of timber</p> <p>Decrease on 165 acres farm $5, 825 50</p> <p>$2850</p> <p>Interest 12 years and 6 months, . . .2137.50</p> <p>$4987.50"</p> <p>The defendants moved for a new trial and on the same day the plaintiffs having released the damages beyond $3000, the court overruled the motion and entered judgment on the verdict for ,$3000.</p> <p>The defendants took a writ of error.</p> <p>The specifications of error were:—</p> <p>1-4. Negativing the defendants lst-4th, 9th and 10th points.</p> <p>5-8. The extracts from the charge given above, except the last.</p> <p>9 and 11. Entering judgment for the plaintiff on the verdict.</p> <p>10. Entering judgment for more than $900, the amount of “ damage” found by the verdict.</p> <p>12 and 13. Appointing viewers on the petition, and confirming the report of the viewers.</p> <p>14. Admitting the evidence of plaintiff which was objected to.</p> <p>15-18. Rejecting the several offers of evidence by the defendants.</p> <p>19 and 20. Overruling the exceptions to the report of the viewers, that they did not state the quantity, &c., of the land taken, and that they returned no draft.</p>

<p>1. Hunter and wife contracted in writing to sell to Dankel the real estate of the wife; the separate acknowledgment of the wife being taken. Held, that a court of equity had jurisdiction to entertain a bill by the vendee, for specific performance.</p> <p>2. A married woman has Capacity to contract for the sale of her real estate, and to convey it in the precise statutory method conferring the power,</p>

<p>Error to the Court of Common Pleas of Lehigh county: No. 340, to January Term 1866.</p> <p>The proceedings in this case were commenced by a scire facias sur mortgage, in which Joseph Weaver, administrator of Solomon Weaver, deceased, to the use of Sarah Mennig, was plaintiff, and John H. Helfrich, “his feoffees and terre-tenants,” were defendants.</p> <p>The following facts, in the nature of a special verdict, were agreed upon and submitted for the opinion of the court:—</p> <p>Prior to April 12th 1835 Jacob Martin died seised in fee of four acres of land in the borough of Allentown; on that day the administrators of Jacob Martin, deceased, sold the same, under proceedings in partition in the Orphans’ Court of Lehigh county, to Peter Kuntz, subject to the dower of Jane Martin the widow of the decedent.</p> <p>Peter Kuntz died seised of the tract so purchased, having by his will, proved February 23d 1846, devised it to his wife, as follows:—</p> <p>“ My dwelling-house in Northampton township” (nowin borough of Allentown) “ in which I live at present, with four acres of land adjacent thereto, and all the out-buildings thereupon, I give and bequeath to my aforesaid wife Elizabeth, with all my household goods, interest on bonds or notes and all other personal property, for and during her natural life, or so long as she shall remain my widow. But in case she should marry again, the aforesaid executor shall appraise and make a lawful inventory of the aforesaid dwelling-house, land and appertenances, and also of all the aforesaid personal property, and then sell all said personal property at public vendue, and shall put the proceeds at interest on good and sufficient security, and the aforesaid dwelling-house and land belonging thereto, shall be rented till my aforesaid daughter Maria shall attain lawful age, after which time she shall be the only lawful owner thereof for ever, with the charge or reservation that my aforesaid wife shall draw one-third of the rent thereof during her natural life, and it shall be a charge and lien on said house during said period.”</p> <p>On the 20th February 1855, upon the petition of Elizabeth Kuntz, the widow of Peter Kuntz, and of the other parties in interest, under the Act of April 18th 1853, the Orphans’ Court directed the executor of Peter Kuntz to sell a portion of the four acres, the purchase-money to be a lien upon the premises until fully paid, the disposition of the purchase-money to be decreed by the court.</p> <p>At the April Term the executor returned that he had sold the property to John H. Helfrich for $8600. The sale was confirmed by the court, and the court directed that the purchase-money remain charged on the premises during the lifetime or widowhood of the widow of' the said Peter Kuntz, deceased, the interest thereof to be paid to the said widow, agreeably to the directions of the will of said deceased, and at the death or marriage of the said widow the principal sum to be paid and divided according to said will — the deed to the purchaser to be made subject to the purchase-money and interest as aforesaid.</p> <p>A deed for the property was delivered April 11th 1855: it recited the proceedings in the Orphans’ Court, and making the premises thereby conveyed “ subject, nevertheless, to the payment of the purchase-money hereinbefore mentioned, with the annual interest thereon.”</p> <p>On the 1st of April, 1857, Helfrich executed a mortgage to Solomon Weaver for $1200 upon a part of the premises sold to him by the executor of Kuntz; this mortgage was afterwards assigned by the administrator of Solomon Weaver to Sarah Weaver, his widow, who afterwards intermarried with Joseph Mennig. On the 3d November, 1862, under a testatum fieri facias from Berks county, against Helfrich, the land covered by the mortgage was sold by the sheriff, for $480, to John H. Oliver, who defended in this action as terre-tenant.</p> <p>At the time of this sheriff’s sale, Jane Martin, the widow of Jacob Martin, was still living, and the principal sum charged upon the four acres in her favor, together with a small amount of accrued interest, was still unpaid; Elizabeth Kuntz, the widow of Peter Kuntz, was also still living and unmarried, and the whole of the purchase-money ($3600), of that portion of the four acres conveyed by the executor of Kuntz to Helfrich, together with a portion of the accrued interest, was also unpaid.</p> <p>At the date of this sale by the sheriff, the mortgage from Helfrich to Weaver was the first encumbrance upon the property covered by it, except the dower of the widow of Jacob Martin, and the encumbrance mentioned in the deed to Helfrich in favor of the widow and other devisees of Peter Kuntz.</p> <p>It was agreed that if the court were of opinion that the lien of the mortgage was discharged by the sheriff’s sale to Oliver, then judgment to be entered upon the scire facias for the' defendants: if the court were of opinion that the lien of the mortgage was not discharged by the sheriff’s sale, then judgment to be entered upon the scire facias for the plaintiff for $1200, with interest from January 15th 1861; the costs to follow the judgment.</p> <p>The court directed judgment to be entered for the plaintiff for $1200, with interest from January 15th 1861.</p> <p>The defendants took a writ of error and assigned for error the entry of judgment for the plaintiff.</p>

145, to July Term 1868. This was an action of assumpsit brought, August 3d 1861, by The Allentown Bank against The Dimes Savings Institution. On the 10th of December 1860, the Dimes Savings Institution being indebted to the Allentown Bank in the sum of $524.65, the cashier of the savings institution gave to the cashier of the bank a bag containing $487 in coin.

208, to January Term 1869. This was an action of debt by Jacob Leith, President of the School Board of Lower Saucon township, to the use of the School District of that township against William H. Bush, George Rennig, Tobias W. Lynn, James Wohlbach and Morgan Apple. The writ was issued, November 7th 1866. The suit was on the following bond :— “ Know all men by these presents that I, William PI.

<p>Error to the Court of Common Pleas of Carbon county: No. 317, to January Term 1869.</p> <p>This was an amicable scire facias, January 5th 1869, on a municipal claim entered October 16th 1868, by the Borough of Mauch Chunk against Abraham Shortz. The claim was for $202 under the Act of April 5th 1861, regulating boroughs, for constructing “a drain or sewer” in front of the defendant’s lots “for the purpose of draining and carrying away the filth and refuse from the lots and buildings” of the defendant. Twenty per cent, was added to the claim for default of payment within twenty days.</p> <p>On the 4th of January 1869, the defendant obtained a rule to strike off the lien, on the ground that there was no legal authority for the entry.</p> <p>The parties filed a case stated, in which it was agreed that an ordinance had been passed by the borough council, requiring that a drain should be constructed in the public street, that the defendant was notified to construct it along his premises within twenty days, or that the borough would cause it to be done at his expense, adding twenty per cent, to the cost; the defendant refused to construct the drain, and at the expiration of twenty days the work was done by the borough, and the above-mentioned claim for the cost and twenty per cent, penalty was filed. It was agreed that if the court should be of opinion that the borough had authority to enter the lien, judgment to he entered for the plaintiff for the amount of his claim with interest; if otherwise, judgment to be entered for the defendant.</p> <p>On the 9th of January 1869, the court made the rule absolute, struck the lien from the record, and entered judgment for the defendant.</p> <p>On removal of the case to the Supreme Court, thus entering judgment was assigned for error.</p>

249, to January Term 1865. Tbis was an issue devisavit vel non, directed, September 28th 1864, by the Begister’s Court to try the validity of the will of Julia Dickinson, deceased. John Dickinson, a son, the principal legatee and executor, was the plaintiff, and Abel S. Dickinson, another son, the defendant. The decedent was the wife of Abel Dickinson; on the 24th of December 1863 she executed the paper writing in controversy. It was witnessed by Gr.

129, to July Term 1868. This was an action of ejectment by Sarah Brooks and John Brooks, in her right, against Daniel Horn, for a tract of land in Brady township, containing 99 acres. The writ issued July 14th 1865. On the trial, May 28th 1868, before Linn, P. J., the plaintiffs gave in evidence a deed dated July 17th 1864, from the defendant to Sarah Brooks, for the land in controversy; and rested.

146, to July Term 1868. This was an action of ejectment brought November 5th 1862, by Mary H. Jenks and Anna H. Jenks, by their guardian George W. Andrews, against A. K. Wright and others, for a tract of 63 acres of land in Penn township. The plaintiffs are children and heirs at law of D. B. Jenks, deceased.

147, to July Term 1868. The proceeding in this case was a feigned issue to determine the right to money in court made by the sheriff under the circumstances hereafter stated. The issue was between Pierce & Neyhart and W. A. Green, plaintiffs, and S. H. Evans, assignee in bankruptcy of Timothy Hanley, defendant. The order for the issue was made April 22d 1868.

305, to January Term 1869. Appeal of Richard Norris. Upon the petition of Richard Norris, the Court of Quarter Sessions appointed a jury to assess the damages to be sustained by him by the widening of Spring Garden street in Philadelphia, in pursuance of a joint resolution of the city councils.

135, to January Term 1869. In the court below this was a bill filed March 5th 1866, by J. Y. James and Polly S. James, for her use, against H. W. Winch and Robert Allen, sheriff of Warren county.

108, to January Term 1869. This was an action of assumpsit brought March 21st 1867 by Howard J. Case against Jerome Babcock, to recover the sum of $500, being the consideration paid by the plaintiff to the defendant for land for which the defendant had no title.

<p>1. Winslow, living in Elk county, sold an undivided half of timber land to Eallon, living in Philadelphia. Eallon gave a mortgage for the unpaid purchase-money; Winslow leased from Eallon to be determined on six months’ notice by either party. Winslow took the management and went into exclusive possession. After the determination of the lease by notice from himself, Winslow proceeded on the mortgage, took judgment after two nihils and bought the land at sheriff’s sale. Held, that there was no relation of confidence to prevent Winslow’s purchase.</p> <p>2. Winslow was not in possession for residence or cultivation and was not bound to account as mortgagee in possession or as co-tenant.</p> <p>3. The burden of showing that Winslow cut timber for which he was bound to account was upon Eallon.</p> <p>4. Performing a particular service on special request, is not evidence of a general agency even as respects strangers.</p> <p>5. There was nothing in the relation between the parties to prevent Winslow proceeding on his mortgage without personal notice to Eallon.</p>

335, to January Term 1869. In the court below Charles Bell, on the 5th of December 1866, brought an action of ejectment against Henry Hoffman and twelve others for 550 acres of land in Benzinger township, part of warrant 4883. The case came on for trial on the 15th of January 1869, before Williams, Additional Law Judge.

277, to January Term 1869. This was a scire facias sur mortgage, issued by Henry Souther and Edward Souther, survivors of Souther, Willis & Souther, against James Coyne, with notice to Joseph Wilhelm, terre-tenant, to which the defendant Wilhelm pleaded “nil débet and payment,” &c. 6 The mortgage upon which the sci. fa. was issued was given by Coyne to the plaintiffs to secure the payment of a note for $3000, and was recorded April 30th 1867.

337, to January Term 1869. This was an action of ejectment brought October 7th 1867, by William Reed, against John N. Breeden, James Bradley, William C. Hall, John P. Long, Hiram Carman and R. P. Salisbury, for the undivided three-fourths of 13,000 acres of land, known as the “ Portland Mill Property.” The case was tried, January 12th 1869, before Williams, Additional Law Judge.

<p>Error to the Court of Common Pleas of Elk county: No. 336, to January Term 1869.</p> <p>This was an action of ejectment, brought June 12th 1865, by Henry Millingar against F. X. Sorg, Michael Konle, Michael' Schoeble, Caspar Werner, Clemens Harberger, Josiah Caldwell, M. A. Mitchell and Francis Van Marsenville. The land claimed in the writ was warrant No. 4881, in Benzinger township, Elk county. The case was before tried, and- a verdict rendered for the plaintiff for all the land mentioned in the writ, except about 186 acres set out in the verdict. The judgment was reversed by the Supreme Court at January Term 1868. The report of the case is in 5 P. F. Smith 215, where will be seen a plot of the land in dispute.</p> <p>On the trial, April 28th 1868, before Williams, Additional Law Judge, the plaintiff showed title in Hiram Payne to warrant 4881, in the name of W. Willink, ■ the treasurer of Elk county-having on the 16th of Erebruary 1867 made a deed to Payne for the land as sold for taxes. On the 16th of August 1849 Payne conveyed to John Morris, and on the 16th of January 1865 Morris conveyed to the plaintiffs.</p> <p>The defendants gave evidence as follows: Warrant No. 4884, in the name of Willink, to whom a patent issued September 24th 1799. The title to this tract was in Moses McKee on June 29th 1847. McKee at that date appointed Charles H. Thing his attorney in fact to sell all his land in Elk county. On the 19th of August McKee by his attorney sold 711 acres of 4884 to Benzinger and Eschhach. The defendants, Van Marsenville, Harberger, Werner, Schoeble, Caldwell and Mitchell deduce title regularly from Benzinger and Eschhach.</p> <p>On the 29th of March 1856 part of warrant 4884 was owned by B. E. Mann, who on the 7th of April, by his attorney in fact, conveyed it to Horace Little. On the 9th of June 1856 this part was sold to Little by the county treasurer as 311 acres for the taxes of 1854 and 1855. Little on the 29th of March 1864 conveyed to Konle, and Konle on the 24th -of August 1864 conveyed to Sorg.</p> <p>The defendants examined Hiram Payne, a surveyor, who testified that in 1845 he located Nos. 4885, 4886, 4887 and 4888, for Benzinger; that on behalf of Benzinger he made a contract to purchase McKee’s part of warrant No. 4884. Benzinger sent him to New York to make the purchase, and Benzinger purchased from representations made to him by the witness; witness advised him to buy it. He paid the consideration to McKee, and took the deed to**Benzinger at Baltimore. The defendants offered to prove by Payne that he represented to Benzinger that the land was within the lines which defendants claim to be the lines of No. 4881. The plaintiffs objected to the offer, the court admitted it, and sealed a bill of exception. Benzinger was at St. Mary’s in Elk county, near the land; he and witness were looking over the map together, and the question who owned the land adjoining his was raised; witness had not then been upon No. 4884, and did not know who owned it; all that either of them knew about it was from the maps; this was in 1845; witness did not recollect telling Benzinger where 4884 was located; the four warrants above named, which witness located, adjoined 4884; “ I claimed 4881 to be the fourth one from the long warrant; it Vras the lot north of West creek; that stream run through 4884 as I located it; I so claimed while I owned it; while I owned 4881, there was an improvement commenced in the lot south of it, which I call 4884; was made by the Werners; Werner’s house was, at a guess, about 250 rods from the north line of 4884; I supposed him to be on 4884, according to my location of these lands; I owned some land on the west of the district line, viz., warrant 4882 and- east half of 4883; in 1849 I run those tracts; I got William Nelson to assist me, and I had him go with parties desiring to look at the lands, to show where they lay; he could run a line with a compass, and I could trace old lines. A couple of men had been looking at the lot 4884; one was John Morris, he went with Nelson to look at the land, came back, and I closed a sale to him. * * I never run the lines of 4881 for the purpose of locating that warrant, but in locating the other four lots I run, what I called the south line, of 4881; I also run the line between 4884 and 4883.” He further testified that a draft, showed him at the trial, represented the warrants as he located them; it shows West creek to be on 4884. He knew the ofiicial corners of the lots from drafts furnished him by Benzinger. There was little if any question that Payne located 4884 for Benzinger on his own lot 4881.</p> <p>William Nelson testified that he was employed in 1849 by Payne to look up the lines and ■ make sales; he took Morris to look at what they then called No. 4881; he pointed out the line of 4881 to Morris; the first warrant they passed after showing Morris the line he called 4884, it had on it an improvement of Werner, and West creek passed through it. He told Morris this tract belonged to Benzinger and Eschbach; knew the land he showed Morris was 4881, from maps shown him by Payne; there was no improvement on the warrant; the Philadelphia and Erie Railroad runs through 4884.</p> <p>West creek and the railroad both pass through 4881 and not through 4884; Werner’s improvement was on 4881.</p> <p>Charles Luhr testified that he was Morris’s agent from 1852, and was employed by him to sell 4881; he described it to witness as north of West creek, and said that he passed through a clearing of Werner’s in going to his land. After Millingar had bought the lot from Morris, he asked witness about it; witness said it was the warrant north of West creek ; he said that was what Morris had told him; Morris paid taxes on this lot, and went on to it several times after he bought it; there were other improvements than Werner’s; one begun in 1848 or earlier.</p> <p>The evidence will be found much more in detail in the former report of the ease.</p> <p>The plaintiff asked the court to charge:—</p> <p>1. That no location of warrant No. 4881, made by Hiram Payne prior to the .time he acquired his title under the treasurer’s sale to him, nor any act done by him, can impair the title in the hands of his grantee John Morris.</p> <p>2. That no title to land sold at treasurer’s sale for taxes is vested in the purchaser until the equity of redemption has expired, which is in two years from the date of the sale.</p> <p>3. That the improvements of Casper Werner upon warrant 4881, at the time John Morris bought from Hiram Payne, was not notice to him of any act done by Payne, which put Morris upon inquiry so as to lead to the fact that he was upon it by any act of Hiram Payne.</p> <p>4. That if a stranger enter upon the land of another, and make improvements by erecting buildings, &c., they become the property of the owner.</p> <p>5. That the showing John Morris of tract Ho. 4880 as being Ho. 4881, the tract he was purchasing, does not prevent him or those claiming under him from claiming Ho. 4881, where it actually is, if Hiram Payne did not own Ho. 4880 at the time Morris bought 4881.</p> <p>6. That Hiram Payne and those claiming under him have been guilty of no acts which estop them from claiming 4881 where its true location is, and shown to be.</p> <p>7. That under the evidence in the case the plaintiff is entitled to recover.</p> <p>The court in concluding the charge said:— * *</p> <p>“ [We, therefore, so instruct you and direct you, that if the uncontroverted evidence in the case be believed, the plaintiff cannot recover any portion of the 711 acres held under Benzinger and Eschbach;] as to the balance of the warrant, the defendants set up a tax sale made in June 1856, to Horace Little and trace; Little’s title to Konle et al., and have asked us to instruct you that the plaintiff’s title was divested by that sale, notwithstanding the regular payment of the taxes on 4881 by plaintiff and his vendors. We refuse so to instruct you. * * The views now expressed cover the points submitted by counsel, as follows: They deny the doctrine of plaintiff's 1st and 2d points. Payne’s acts, before he acquired title, might be such as to estop him from asserting a title subsequently acquired, and it is not necessary that the equity of redemption should have expired, in order that his acts given in evidence in this case should bind him by estoppel.</p> <p>“ The 4th point is affirmed, so also is the 5th. If there was nothing but a misdirection of Morris as to the location of the land, the law would be as stated.</p> <p>“The 3d, 6th and 7th points are denied.”</p> <p>The verdict was for 311 acres, that portion of the land owned by Mann, and sold for taxes to Little.</p> <p>The plaintiff took a writ of error. He assigned for error the admission of the evidence objected to, the part of the charge enclosed in brackets, and the denial of 1st, 2d, 3d, 6th and 7th points.</p>

Appeal, No. 281, to January Term 1869, from the decree of the Orphans’ Court of Philadelphia on the estate of Isaac Brown Parker, deceased. The decedent died in Burlington, New Jersey, on the 19th of September 1865, having made his will, dated August 18th of the same year. The will was proved in -New Jersey October 5th, and letters testamentary issued to John Brown Parker and Frederick Watts, the executors named in it.

Motion to rescind an order for service of notice on a quo warranto against Sidney Dillon and others: No. 138, to July Term 1868. On the 20th of June 1868, Benjamin Harris Brewster, Attorney-General, filed an information against Sidney Dillon, J. M. S. Williams and others, to show by what warrant they claimed to have and exercise the franchises, &c., of a corporation chartered by the Commonwealth of Pennsylvania, by the title of The Pennsylvania Fiscal Agency.

132, to January Term 1869. This was a proceeding by William G. Bedford, “Agent,” against Michael Kelly, under the Landlord and Tenant Act of 1863.

<p>1. A forfeited recognisance of bail for failure of the principal to appear to a criminal charge is a debt to the Commonwealth, to which she alone has title until a distribution under the Act of April 22d 1846.</p> <p>2. The power of the governor to remit is as great after judgment on a forfeited recognisance as before, until the money has been paid into the treasury.</p> <p>3. The costs of prosecution are vested by the sentence in those entitled to them, and pardon does not extinguish their right.</p>

173, to January Term 1869. Tbe proceeding in this case commenced under tbe Act of April 3d 1830, before an alderman, by Charles B. Roberts against Martin Bergman, to recover possession of leased premises for nonpayment of rent. The alderman gave judgment for tbe plaintiff, and tbe defendant, on tbe 15th of April 1867, appealed to tbe Court of Common Pleas.