Volume 62 — Pennsylvania State Reports

February 1869. Before Thompson, C. J., Agnew, Shabswood and Williams, JJ. Read, J., at Nisi Prius.' Error to the District Court of Philadelphia: No. 169, to January Term 1869. This was a scire facias upon a mechanics’ lien, by Charles Doerr and others, trading as Doerr, Son & Co., against Joseph Singerly, owner, and John Ketcham, contractor. The writ issued September 20th 1867.

March 9th 1869. Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J., at Nisi Prius. Error to the Court of Common Pleas of Bradford county: of January Term 1869, No. 122. The proceedings in this case were commenced before a justice of the Peace by A. Hart, “ who sues for himself as well as for the county of Bradford,” against H. Willetts. Judgment was rendered by the justice in favor of the plaintiff. The defendant appealed to the Court of Commop Pleas.

<p>1. A preliminary injunction should not be granted except in a clear case of right, to prevent irreparable mischief.</p> <p>2. When there are disputes as to rights under a contract, especially when they involve its terms, an injunction should not be awarded till the rights are settled.</p> <p>3. If a court would set aside an agreement for mutual mistake, it would not enforce specific performance by one party as understood by the other.</p> <p>4. Property cannot be taken from a defendant and put into the possession of the plaintiff unless by a final decree, after the rights of the parties have been settled.</p> <p>5. As a general rule, mischief which is susceptible of compensation in damages, is not irreparable.</p>

May 3d 1869. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., absent.

May Bd 1869. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., absent. Appeal from the Court of Common Pleas of York county: In Equity: No. 105, May Term 1868.

May 4th 1869. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., absent. Error to the Court of Common Pleas of Lancaster .county: No. 54, to May Term 1869. This was an amicable action and case stated, in which Margie Baer was plaintiff and Conrad Gast defendant; it was entered September 18th 1868.

<p>May 4th 1869. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., absent.</p> <p>Error to the Court of Common Pleas of Lancaster county: No. 20, of May Term 1869.</p> <p>This was an issue under the Sheriff’s Interpleader Act, entered November 19th. 1866, in which Lewis Hartman was plaintiff and claimant, and G. J. Úiller and H. D. Groff were defendants.</p> <p>On the 20th of July 1866, the defendants, Groff and Diller, issued a fi. fa. against Jacob Bartel, under which the sheriff levied on certain goods as the property of Bartel, of which Hartman claimed to be owner. To test the ownership of the goods the issue was directed.</p> <p>On the trial before Hayes, J., the claimant gave in evidence the following bill of sale:—</p> <p>“ Jacob Bartel, of Lancaster city, hereby sells to Lewis Hartman all the said Bartel’s stock of horses, wagons, buggy and sulky, harness, stoves, bells, oats, corn, hay, grain-drills and winnow mills, and all the stock, lumber, iron-castings, materials, machinery, boiler, engine, gearings, belting and fixtures in and about said Bartel’s manufactory, on the alley running from Chestnut to Orange, between Water and Mulberry streets, in said city, agreeably to the list or schedule hereto annexed, and any and all other articles not included in said schedule, in any way belonging to said factory, for the sum of two thousand and two hundred dollars, cash to be paid at the execution hereof, and which the said Bartel acknowledges to have received. Hartman to have possession of the said goods and articles immediately. Hartman to have the use of the said shop until 1st of April next, without paying rent— any drills or winnow mills away from said shop to belong to Hartman.</p> <p>“ Witness my hand this first day of February 1866.</p> <p>“Jacob Bartel.</p> <p>“Witness: W. Carpenter.”</p> <p>Carpenter, the witness to the bill of sale, testified that the sale was settled either by money or evidences of indebtedness. The plaintiff, by a number of witnesses, gave evidence that after the sale he entered into possession of the manufactory, took control of the business, hired and paid the hands, and did other acts tending to show ownership in him. F. Chalfant, at the date of the bill of sale, was a partner of Bartel; he claimed to own part of the property mentioned in the bill of sale, and demanded that Hartman should pay him before delivery. Chalfant took possession of some of the property; and after much altercation and a criminal prosecution against him, Hartman paid him $475, the amount he had put into the firm, and secured him against all debts due by the firm. The prosecution was settled; and on the day the bill of sale was executed, Chalfant released to Hartman all his claim for th,e property and for damages on account of the prosecution. There was evidence of payment by Hartman of several hundred dollars of the debts of the concern.</p> <p>On the part of the defendant there was evidence that Bartel '■worked in the manufactory very much as he had previously done; that he collected money, directed and paid the hands. His own name was not in the time-book as one of the hands; he had access to the books: that the property sold was of greater value than the price paid; that Bartel owed plaintiff nothing, and had notes of Bartel, which he held as collateral security. There was other evidence for the purpose of showing a concurrent possession in Hartman and Bartel, and that the bill of sale was without consideration. After having given evidence as above stated, the defendant offered “ to prove the declarations of Jacob Bartel about the time of this transfer and after, and to the time of his death, and before the transfer was made.” The plaintiff objected to the offer; it was admitted by the court, and a bill of exceptions sealed. The declarations of Bartel, as given in evidence, tended to show want of consideration, &c. The charge of the court states the points of the parties respectively, and is inserted as being necessary for a proper understanding of the opinion of the Supreme Court.</p> <p>After stating the facts as to the sales, execution, &c., Judge Hayes said:—</p> <p>“ These defendants, Diller & Groff, defend their proceedings by taking the ground that the alleged sale and transfer of Jacob Bartel to Lewis Hartman were fraudulent and being a fraud was void — and therefore made no change in the property, which remained as before the property of Jacob Bartel, and liable to the defendants’ execution.</p> <p>“ This is a sound and a good defence if made out and proved to the satisfaction of the jury. The evidence adduced has for the most part relation to the question of fraud in regard to the arrangement between Jacob Bartel and Lewis Hartman in the transfer of the factory and property belonging to the same. Arid the points presented by the counsel on both sides all relate to this ‘ question. These points are as follows:—</p> <p>“ On the part of the plaintiff, Lewis Hartman, the court is requested to charge the jury :—</p> <p>“ 1. Although fraud may be proved by a chain of circumstances given in evidence, yet if these circumstances, however numerous, fail directly and clearly to show one or more clear acts of fraud, the jury cannot find the transaction fraudulent, because fraud can never be presumed, but must be directly proved. If in this case no act of fraud is directly proved, then the verdict must be for the plaintiff.</p> <p>“ In answer to this the court will say, that fraud is not to be presumed, the burden of proof is on the party alleging it, but when necessary or proper in any case to be established it must be proved. How it is to be proved is not precisely fixed; but like other facts, it must be proved either directly by positive evidence of the facts, or by proof of circumstances which tend to no other conclusion, and from which a jury must infer the fraud alleged. If the jury, in view of the transactions between Jacob Bartel and Lewis Hartman, as exhibited in all the evidence before them, are satisfied that there was no act of fraud in the transaction, nothing done to delay or hinder the creditors of Jacob Bartel, and that the sale and transfer of the factory and property pertaining to it, were all conducted in good faith, they should find a verdict for the plaintiff.</p> <p>“ The plaintiff’s second and third propositions are:—</p> <p>“ 2. If the jury, from all the evidence in the case, believe that the sale of the property in the shop sold to Hartman by Bartel, on the first day of February 1866, and afterwards levied on, was an actual sale, and the possession of the goods was delivered to Hartman at the time of the sale, or in a reasonable time after-wards, then the verdict must be for the plaintiff.</p> <p>“ 3. If the sale was an actual sale accompanied by a transfer of possession to Hartman at the time, or in a reasonable time afterwards, then whether Bartel was clear of debt, or deeply in debt, makes no difference, as the verdict must be for the plaintiff.</p> <p>“ The answer to the second point is that the jury, if they believe the sale of the property to Hartman by Bartel, the 1st of February, 1866, was a boná fide — i. e. a fair, honest and open sale, without any design to delay, hinder or defeat the creditors of Jacob Bartel, and the possession followed immediately upon the sale, the verdict ought to be for the plaintiff, and that too whether Bartel was not indebted or deeply in debt as the third proposition puts the question.</p> <p>“ 4. If the sale was a boná fide sale, accompanied by possession, in a reasonable time after the contract, and the possession of Hartman was open and notorious, that if the price paid for the goods was their full value, or under their full value, makes no difference, and the verdict in the absence of clearly proved fraud, must be for the plaintiff.</p> <p>“ The answer is, that if the sale was a boná fide sale, &c., and the price paid was such as was fairly and honestly agreed upon between the parties, and whether it was more or less than the value of the property would make no difference, and the verdict, on proof to the satisfaction of the jury that the sale was of that character, ought to he for the plaintiff.</p> <p>“ On behalf of defendants the first point is:—</p> <p>“ 1. The agreement under which Hartman claims to hold the property, not being under seal, and the fairness and honesty of the transaction being disputed, he must prove to the satisfaction of the jury that he paid the consideration set forth in the agreement at the time of the, delivery thereof, and if he has failed to do so, the transaction is fraudulent.</p> <p>“ The answer is, that on the exhibition of the agreement mentioned, and it being shown that no- money or consideration was paid or given at the time of its execution, it was requisite and necessary for the plaintiff to satisfy the jury that there was a valuable consideration for the purchase of the property agreed to be sold to him, to the amount set forth in the agreement, either at the time it was made or before, and his failure to do so would be a circumstance from which the jury might infer that the transaction was fraudulent.</p> <p>“ 2. If the jury believe that Hartman took a transfer of the property of Bartel for the consideration of $2200, when he knew that Bartel was insolvent, the property being worth more than double that amount, that fact is evidence of fraud.</p> <p>“ This is answered in the affirmative.</p> <p>“ 8. If the jury believe that there was no material change in the shop, except that Hartman was there most of the time bossing, and that he paid the hands — and that Bartel helped to hire hands, gave directions to hands, took a general interest in the shop as he did before Hartman came there, and received no wages from Hartman as a hand, these facts are evidence of fraud and collusion.</p> <p>Answer : “ These circumstances were admitted in evidence as relevant to the question of fraud, and are such as it is very proper for the jury to consider. If these facts, with all the other testimony, convince the jury that the plaintiff conspired with Jacob Bartel to delay, hinder and defeat the creditors of the latter, and the sale and transfer were contrived by them to carry out their design, it would be such a fraud as would invalidate the whole transaction, and leave the property just as if no such sale or transfer was made and liable to the defendant’s execution.</p> <p>“4. If the jury believe from all the testimony in the case, that Hartman and Bartel made the arrangement in question for the purpose of hindering and delaying creditors so as to prevent them obtaining their just claims, or for the purpose of securing Hartman for money advanced by him to Bartel, or that Hartman and Bartel were in partnership, their verdict must he for the defendants.</p> <p>Answer: “ If the jury believe from all the testimony in the case, that Hartman and Bartel made the arrangement for the purpose of hindering and delaying creditors, so as to prevent them obtaining tbeir just claims, or that Hartman and Bartel were in partnership, the verdict should be for the defendants; though if the sale and transfer were bond fide, for the purpose of securing Hartman for money which had been actually advanced by him to Bartel and no other purpose, there would in such case he no fraud; but if there had been an actual sale and transfer with the intent to delay, hinder and defeat Jacob Bartel’s creditors, the transaction would be fraudulent and of no effect.”</p> <p>The verdict was for the defendants. The plaintiff took a writ of error and assigned for error the "admission in evidence of Bartel’s declarations, and the answer to the defendants’ 1st,' 8d and 4th points.</p>

<p>1. In a suit by an attorney for services rendered to defendant individually, and also as trustee, the jury found for plaintiff $259, to be paid as follows, $150 by the estate in trust, and $109 by the defendant. Held, that judgment for $259, generally, was properly entered.</p> <p>2. The value of the services done by defendant was fixed by the verdict; the amount payable by the trust was to be-determined in a settlement of the trust account.</p> <p>3. A general objection to a deposition which is evidence for any purpose is not available.</p>

<p>May 4th 1869. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., absent.</p> <p>Error to. the Court of Common Pleas of Lancaster county: No. 52, to May Term 1869.</p> <p>This was an action on the case by Merritt Smith against the Lancaster County National Bank; the writ issued April 30th 1867.</p> <p>The plaintiff declared that he had delivered to the defendant certain bonds to be taken care of and to be delivered to him on request, and by the carelessness, negligence and improper conduct of the defendant, the bonds had been lost.</p> <p>J. H. Clark, the son-in-law of the plaintiff testified that on October 22d 1866 he went with plaintiff to the bank and asked Mr. Champneys, the teller, if he would receive some $3500 of government bonds on deposit. Witness did not recollect any one being there but the teller ; he said he would ; the plaintiff produced the bonds in an envelope, the teller opened them and read the numbers, amount, &c., and witness made a memorandum in writing; the plaintiff had a memorandum which was compared with the one then taken. The teller put the bonds into an envelope, asked the plaintiff’s name, endorsed the envelope, and put it into the vault; the plaintiff told him he was going to the West and might have to order the bonds. On the 23d of January 1867 witness went with plaintiff to the bank, and plaintiff asked the teller for the bonds; the teller after searching the vault said the bonds were not there. After some unpleasant altercation the plaintiff and witness went away.</p> <p>The memorandum of the bonds was given in evidence.</p> <p>The plaintiff having given other evidence as to the demand for the bonds and as to their value, closed.</p> <p>C. J. Rhodes, for defendant, testified that Smith and Clark came to the bank; Clark was asking Mr. Champneys for some bonds; Champneys said they were not there, but said he would look again; he went to the vault, said he had looked where they kept such things, and they were not there, and “if you ever had them here, you took them away, again.” Clark said he knew the bank was not responsible.</p> <p>B. Champneys, the teller, testified that the plaintiff and Clark, who were strangers, and whom he did not know, came into the bank; they had bonds which he refused to receive, saying that they did not take bonds from strangers; both appeared equally urgent about leaving them; the witness finally agreed to receive them; they asked what would be the charge for keeping them; witness told them the bank made no charge, and would not be responsible if they were stolen. Plaintiff asked if he could send an order; the teller gave him the register and he wrote his name in it; witness put the bonds into an envelope, wrote plaintiff’s name and address on it, showed it to plaintiff, and put it away into the vault, in a box where they kept the deposits. They took more care of this box than even their own bonds. The witness had forgotten these circumstances, when some time afterwards a ■person came into the bank and said he wanted “Merritt Smith’s” bonds. Witness asked him if that was his name; he said it was; he mentioned the amount of the bonds ; said he lived inPeach Bottom; witness looked and found a package directed with the name of Merritt Smith, Peach Bottom, and the amount exactly as he said; witness opened the envelope so that the person could not see what was in it, and made him describe the bonds; he did it correctly; he showed witness a list containing the numbers, &c., of. the bonds, and witness then gave up the bonds.</p> <p>The defendant then proposed to ask the witness:—</p> <p>“Whether, from the description given of the bonds, of the name and residence of the owner and the list of the bonds with their respective amounts and numbers, presented to arid examined by the 'witness, and other circumstances which transpired, he believed he was the rightful owner?” also,</p> <p>“Whether, as teller of the Lancaster County Bank, did you in ■this instance exercise the same care and-diligence as you do in the general transaction of the business of the bank ?”</p> <p>The questions were objected to by the plaintiff, rejected by the court, and several bills of exception sealed.</p> <p>The witness further testified: On the 23d of January 1867 two persons came to the bank; one of them, the older, presented a small check, which was cashed, and then the person-said he would take 'his bonds. He gave his name as Merritt Smith. Witness went to the vault and looked and said there were no bonds there ; witness •searched again, and told them their bonds were not there. The young man said that witness had taken a' list of the bonds and name in the book; witness found the name Merritt Smith on the signature book; he had never kept an account there; -both the plaintiff and Clark were unknown to the witness. The witness •on cross-examination testified as to the manner in which the bank did business, as to paying checks to strangers, &c. ^</p> <p>There was other evidence on both sides of the same general character as that before given by them respectively.</p> <p>The plaintiffs asked the court to charge:—</p> <p>1. That the confidence induced by undertaking any service for another is a sufficient consideration to create a duty in tHe performance of it; and the defendants having accepted the custody of the bonds in question, have created such a duty así to render them liable.</p> <p>2. If the jury believe from the evidence that the plaintiff left the' bonds in controversy for safe keeping, in the charge of the defendants,-the defendants were bound to exercise ordinary care, skill and diligence, to keep and return the same safely to the plaintiff, upon demand; and any negligence or failure so to keep them, renders the defendants liable.</p> <p>3. If the jury believe that the plaintiff delivered the bonds in question to the defendants for safe keeping, and demanded to have them back, and the defendants have failed to deliver them upon such demand, it is incumbent upon the defendants, satisfactorily to account for their loss, and their failure to do so renders them liable for their value.</p> <p>4. The whole evidence in this case, showing a delivery by plaintiff, and an acceptance by defendants of the bonds for safe keeping, a demand for same by plaintiff, and a refusal by defendants to deliver to plaintiff on such demand, the defendants failing to give any satisfactory account of the disposition of the bonds in their custody, renders them liable, and the verdict must be for plaintiff.</p> <p>5. If the jury believe that an officer of the bank delivered the bonds in question to a person other than the owner, or some one' authorized by him to receive them, and that such delivery was negligent, and ordinary care, skill and caution was not used, defendants are responsible, no matter how negligent they may be in the ordinary conduct of their own business.</p> <p>The defendants asked the court to charge:—</p> <p>2. The bailment in this case is a naked deposit without compensation to the bailee, or consideration, and the bailee is liable for gross neglect only, and is not liable if the bonds were stolen or obtained by fraud. The evidence shows that the defendant’s agents took the same care of plaintiff’s bonds that they did of the bonds, money and bills discounted of the bank, and the loss of the bonds being accounted for, the burden is on the plaintiff to prove negligence, and no evidence to that effect having been given, the ■ verdict should be for defendants.</p> <p>3. It is shown by the evidence that the deposit was accepted by the teller of the bank on his express declaration that the bank would not be in anywise liable, which was acceded to by the plaintiff, and the plaintiff therefore cannot recover.</p> <p>4. That as it is clearly proved that the deposit of bonds, made in this case, with the Lancaster County National Bank, was a gratuitous deposit, the bank receiving no compensation for the safe keeping thereof;</p> <p>That the depositor, Merritt Smith, and his son-in-law, Clark, were not and never had been customers of the said bank, and were unknown to the teller who received the deposits;</p> <p>That at the time of the deposit a list of amounts, kind and numbers of the bonds, was taken by the depositor, and his name and address, to wit: “Merritt Smith, Peach Bottom,” written upon the envelope in which the bonds were placed by the teller, there being no one else in the bank at the time the list of kind, numbers and amounts of the said bonds was so taken, and the address so written upon the said envelope;</p> <p>That the said bonds were afterwards delivered by the said teller to a person who asserted that he was Merritt Smith, who informed the teller that the bonds were in an envelope marked “ Merritt Smith, Peach Bottom,” who accurately described to the teller the numbers, kind and amounts of the said bonds, and who produced a list oi\ which the numbers, kind and amounts of said bonds were accurately entered;</p> <p>There was no negligence on the part of the defendant and the plaintiff cannot recover.</p> <p>The court (Hayes, J.) charged:—</p> <p>“ This is a case of deposit without compensation; and it is well settled that he who receives such a deposit is liable only for the want of ordinary care in keeping it and returning it to the owner when demandedand the question for the jury — a question of fact — is, whether such care was exercised by the defendants or not.</p> <p>“ It is clearly proved that thp plaintiff left the bonds mentioned in the declaration, in October 1866 with the defendants on deposit, to keep for him, and that in January 1867 he called for these bonds and-did not receive them on demand, but was told by the defendants that they had them not.”</p> <p>The points of the parties were answered as follows. Plaintiff’s:</p> <p>“ 1. The plaintiff having deposited the bonds with the defendants, and the defendants accepting'the care and custody of them, a duty was created rendering the defendants liable for the want of ordinary care in keeping them for the plaintiff.</p> <p>“ 2. - Any negligence amounting to a failure to exercise ordinary care, would, under the circumstances, make the defendants liable in this suit.</p> <p>“ 3. This is true, if the jury believe that the defendants have not satisfactorily accounted for the loss of the bonds, or have shown that they used ordinary care in keeping them for their owner.</p> <p>“ 4. The defendants are liable if they have failed in giving a satisfactory account of the disposition of the bonds left by the plaintiff with them. If that account shows that they took ordinary care such as common prudence of the generality of men would use in keeping these bonds, they are not liable; but if it shows that they did not exercise ordinary care of this kind such as common prudence would have dictated to men of common business capacity, in the custody of these bonds, it would render the defendants liable to a recovery by the plaintiffs in this action.</p> <p>“ 5. This is correct as a legal proposition. It is for the jury to say whether the act of the defendants in the delivery or giving up of these bonds, was, under the circumstances, negligent and wanting in ordinary care, skill and caution. If it was, the defendants are responsible and bound to restore them to the plaintiff or their value. ”</p> <p>The defendants’ points:</p> <p>“ 2. The first part of this proposition is correct. With respect to the care of the plaintiff’s bonds received by the defendants, whether they took the same care of them as of their own bonds, money and bills, it is for the jury to determine, and also to decide whether the loss of the bonds has been satisfactorily accounted for, so as to show that the defendants exercised ordinary care, such as men of common prudence and common sense would use in regard to their own property; for if they did so, they are not responsible, but if they did not, they are liable to this action and the plaintiff is entitled to recover.</p> <p>“ 3. There is no evidence that the custody of the bonds was received on any other than the usual terms on which such voluntary deposits are made — that the depositary, the bank, would be liable only in case of the want of ordinary care. If they exercised such care, under all the circumstances disclosed, they are not responsible for the loss of the bonds. If they did not, they are, and your verdict should be for the plaintiff.</p> <p>“ 4. If these facts which appear to be all proved, satisfy the jury that there was no negligence in delivering up the bonds to the man who obtained them from the teller, and that ordinary care was, notwithstanding, under all the circumstances of the case, exercised in the care of these bonds deposited with them by the plaintiff, you should find for the defendants.</p> <p>“ There is something remarkable regarding the application for the bonds by the man to whom they were delivered according to the testimony relative to that fact, of Mr. Champneys. He said he was Merritt Smith. He produced and read a list of the bonds, their denomination, amounts and numbers, which Mr. Champneys found to be perfectly accurate. He told Mr. Champneys the amount contained in an envelope with the name of Merritt Smith, Peachbottom, endorsed. Mr. Champneys went into the vault, found the envelope just as the man described it', with the amount he had mentioned, $3500. He brought it out, opened it, and then asked this man to describe the bonds. He did so and correctly. He asked him if he knew any person in town ? He said he did not, though, said he, I have a list here of the bonds and their numbers and amounts, and he produced it. Mr. Champneys looked at the list and gave up the bonds. If this detail of facts be true, a very gross fraud has been committed. Where did this man obtain his knowledge of these bonds — their particular description, amounts, &c. ? How did he obtain the knowledge that Merritt Smith had made such a deposit with his name and the address of Peachhottom added, endorsed upon it? Where did he get that list of the bonds? You will remember the testimony about the two lists, one brought by Mr. Smith to the bank, wh'en he left the bonds, and the other made by Mr. Clark, when Mr. Champneys read over the denominations, sums and numbers; you will recollect Mr. McMullen’s testimony of what Mr. Smith said about writing to a man in Chester county, who had inquired at the bank, and found the bonds there. But these facts raise a question in the case of consequence to the result.</p> <p>“ If you believe that this man who got the bonds was furnished with the list and the knowledge of the several denominations, sums and numbers of these bonds by Merritt Smith, and was thus enabled to obtain them of the bank, the plaintiff ought not to recover their value from the defendants.</p> <p>“ But if he did not obtain his knowledge and this list from the. plaintiff, and the plaintiff had nothing to do with him, either by himself, by direct correspondence, or by his son-in-law Clark, as his agent, then the jury will say whether, under all the circumstances related by Mr. Champneys as attending the delivery of the bonds, there was a want of ordinary care in so giving up the bonds to that man. If there was a want of ordinary care in thus delivering the bonds, the plaintiff will be entitled to your verdict for the value. But if there was ordinary care exercised in the transaction, the plaintiff would not be entitled to recover, and your verdict should be for the defendants.”</p> <p>The jury found for the plaintiff $4184.50.</p> <p>The defendants took a writ of error, and assigned for error:—</p> <p>I, 2. The rejection of their offers of evidence.</p> <p>3-10. The answers to the several points.</p> <p>II. The judge throughout the entire charge repudiated the doctrine that a depositary without reward must be guilty of gross negligence to entitle the plaintiff to recover.</p>

<p>1. Mishler and Suter entered into a joint recognisance for Suter’s appearance at the next term of the Quarter Sessions. A bill was found; the case was continued till May 27th; Suter, after the continuance, was called three times, and, not appearing, the recognisance was forfeited and respited till May 27th, when there was another respite till August. Suter was then called three times, and the recognisance forfeited absolutely. The record did not show that Mishler had been called. The recognisance being joint, the failure of the principal to appear was a forfeiture of the whple, and it was not necessary to call the bail.</p> <p>2. When the recognisance is several, each recognisance should be separately forfeited, and the bail called three times to produce the principal.</p> <p>3. An entry of forfeiture as to each is conclusive that each had been duly called.</p> <p>4. The forfeiture was not invalidated by the subsequent respite.</p> <p>5. The forfeiture fixed the liability; the respite was an order that it should not be estreated for the period named.</p> <p>6. A respite is a temporary suspension of the execution of a sentence; a delay, forbearance or continuation of time.</p> <p>7. Keephaver v. Commonwealth, 2 Penna. R. 244, explained.</p> <p>8. The Common Pleas may remit a forfeiture under the Act of December 9th 1783, § 2.</p> <p>9. In a suit against the bail on a forfeited recognisance, evidence is inadmissible that the principal was in court at the time of the forfeiture, that the case was continued on his application, that he was discharged at that term, and that the forfeiture was by arrangement. _ *></p> <p>_ 10. It is in the discretion of the court, in any stage of a trial, to call the defendant and forfeit his recognisance.</p> <p>11. On the continuance of a ease, the court should have the recognisance renewed or commit the defendant.</p> <p>12. A surety’s obligation does not extend to a term to which the case is continued, without his express consent.</p> <p>13. The refusal to allow an amendment of a record is not the subject of review.</p> <p>14. After the jury have rendered a general verdict and been discharged, it is error to call them back to amend their verdict by finding the amount; but if, from the record, the court might have entered judgment for the amount, no harm is done to the defendant, and the judgment on the verdict will not be reversed.</p>

May 5th 1869. Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ. Error to the Court of Common Pleas of Lancaster county: No. 59, to May Term 1869. This was an issue under the Sheriff’s Interpleader Act, in which Robert M. Dysart was claimant and plaintiff, and the Redfield and Rice Manufacturing Company were defendants.

May 6th 1869. Before Thompson, 0. J., Agnew, Sharswood and Williams, JJ. Read, J., absent. Error to the Court of Common Pleas of Lancaster county: No. TO, to May Term 1869.

. May 6th and 7th 1869. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Reed, J., absent. Appeal from the Court of Common Pleas of Lancaster county: In Equity: No. 61, to May Term 1869. The hill in this case was filed, September 4th 1865, by Henry Musselman and Joseph Clarkson against John Gyger.

<p>1. A banking firm dissolved and appointed a partner to liquidate: on the dissolution, he commenced banking in the firm house on his own account under the firm name, and also settled the firm business there. Held, that under the circumstances he was not chargeable with the value of the good-will.</p> <p>2. It seems, “ good-will” did not exist independently of the property in which the business was carried on.</p> <p>3. “ Good-will” is property in some circumstances.</p> <p>4. What constitutes “ good-will” considered in this case.</p>

<p>1. One of the conditions of a telegraph company, printed in their blank form, was that they would not be liable for damages if the claim was not presented in sixty days from sending the message. Held, that the condition was binding on one sending a message on the printed form.</p> <p>2. The condition was in very small type, but the heading directing to it was in conspicuous type. Held, that it was not obscure and deceptive.</p> <p>3. The employer must make claim according to the condition before he can maintain an action.</p> <p>4. Carriers may limit their responsibility by express contract, when it does not cover their own negligence.</p>

<p>May 7th 1869. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., absent.</p> <p>Error to the Court of Common- Pleas of Adams county: No. 62, to May Term 1869.</p> <p>This was an action of debt, commenced November 6th 1867 by John Kuhns against The Gettysburg National Bank. The plaintiff’s statement was for money alleged to have been received by the defendant from the United States, which was the plaintiff’s.</p> <p>The plaintiff having a claim for bounty-money, signed, with others, the following order, which was forwarded to the paymaster-general of the United States by Theodore C. Norris, who had been captain of the company in which the plaintiff served:</p> <p>“ Gettysburg, Pa., Sept. 18th 1865.</p> <p>“ Paymaster-general U. S. A. is hereby authorized to transfer to the Gettysburg National Bank, Gettysburg, Pa., the amount of local bounty due us, retained by Lieut. Wm. F. Arnold, U. S. disbursing officer at Harrisburg, Pa., which money has not been paid to us, but has been.forwarded to the department at Washington, D. C.”</p> <p>Subsequently, Major Lawler, of the paymaster’s department, in payment of the plaintiff’s claim, enclosed the following check to Captain Norris, and sent it to him by mail:</p> <p>“No. 1852. Washington, D. C., Dee. 4th 1865.</p> <p>“ Assistant Treasurer of the U. S., New York.</p> <p>“Pay to cashier Gettysburg National Bank, or order, four hundred ninety-nine & 95-100 dollars.</p> <p>“ $499t%%. J. A. Lawler,</p> <p>“ Paymaster U. S. A.”</p> <p>Captain Norris was a witness for the plaintiff, but was not examined as to whether he received the check or not. The plaintiff gave in evidence a certified copy of the check endorsed by T. D. Carson, cashier of the defendant, to B. B. Comegys, cashier, &c., and “Paid Jan. 4th 1866,” the original check being on file in the office of the assistant treasurer of the United States at New York.</p> <p>There was no evidence showing who presented or deposited the check at the Gettysburg Bank. It was admitted that the plaintiff demanded the money from the defendant before bringing suit. Plaintiff having closed, the defendant offered to prove by J. E. Bair, who was the cashier of the bank, “ that with his knowledge of banking, he would regard it as the custom of banks to pay checks or drafts, of the above form, to the bearer or person presenting them, where there is no order to whose credit to place the money; that it could not be taken by the bank without giving an equivalent for it, or without specific directions to whose credit to place it, and that,' in the absence of such directions, it is the custom to pay to the person presenting it; that the books of the bank show that the money was thus paid out on the draft above referred to, and that it is not on deposit in the bank.” The offer was objected to by the plaintiff, rejected and bill of exceptions sealed.</p> <p>The plaintiff submitted these points:—</p> <p>“ 1. If the jury believe that the check, &c., was for bounty-money due the plaintiff, and was paid to T. D. Carson, the cashier of said bank, or to his endorsee, and that demand was made by the plaintiff on the bank before bringing this suit, the plaintiff is entitled to a verdict for the amount of said check and interest from the date of such demand.</p> <p>“2. If the check, &c., was drawn by Colonel J. A. Lawler for money due to the plaintiff, and paid to T. D. Carson, cashier of the Gettysburg National Bank, or to his endorsee, the said bank became liable to account to said plaintiff for that amount of money received for his use, and if plaintiff made a demand upon the bank for said money before bringing his suit, he is entitled to recover, in absence of evidence showing that the money has been paid.”</p> <p>The court (Fisher, J.) affirmed these points.</p> <p>The defendant submitted the following points:—</p> <p>“ 1. In the absence of notice to the defendant that the draft or check given in evidence was the property of plaintiff, and was to be collected for his use and placed to his credit in the Gettysburg National Bank, the defendant could legally pay the value of said draft to the holder thereof, and would not be liable to plaintiff for any mispayment.”</p> <p>The court answered:—</p> <p>“ The court cannot answer this point in the affirmative. If the bank had the check in question sent or presented to them and was credited with it by the party to whom they endorsed it, it was their duty to inquire into the ownership, and if they paid it to the holder, if he was not the legal owner of the money, it was a mispayment, and cannot be set up as a defence in this suit.”</p> <p>“2. The draft or cheek in evidence was the property of the bearer presenting it to the Gettysburg National Bank, and the plaintiff cannot recover the amount thereof unless he has satisfied the jury that the bank had notice that it was the property of him, the said plaintiff.</p> <p>“ 3. The presumption of law is that the draft or check in evidence was collected for and paid to the person presenting it to the bank, and therefore plaintiff cannot recover unless he satisfies the jury that the bank had notice, at or before the time the same was presented, that it was his property.”</p> <p>These points were denied. ■</p> <p>-The verdict was for the plaintiff for $544.85.</p> <p>The defendants removed the case to the Supreme Court, and, in several specifications, assigned the answers of the court for error.</p>

<p>1. Tully went to Houser’s inn, purchased liquor, &c., and gave money for safe keeping to one in the bar-room, as to whom there was evidence that he was bar-keeper; the money was lost. The court properly instructed the jury that if Tully was a guest and gave his money to the bar-keeper, or if not in fact bar-keeper, was acting in a capacity from which an authority to receive the money on the credit of the house might be inferred, he could recover, if the money was intrusted to him on the credit of the inn; but if Tully was not a guest, or intrusted the money on the individual credit of the bar-keeper, he could not recover.</p> <p>2. An innkeeper extends a general invitation to travellers and receives a reward for his hospitality, from whiph result corresponding duties, one being to protect the property of his guests.</p> <p>3. An innkeeper is bound to take all possible care of the goods, money and. baggage of his guests deposited in his house or intrusted to his family or servants, and is responsible for their acts and the acts of other guests.</p> <p>4. An innkeeper is bound to provide honest servants, and to exercise an exact vigilance over all persons coming into his house as guests or otherwise.</p> <p>5. An innkeeper is bound to pay for goods stolen in his house from a guest; unless stolen by the servant or companion of the guest.</p> <p>6. In ease of a loss at an inn, the innkeeper is liable, although sick or absent.</p> <p>7. An innkeeper is not liable for the loss or embezzlement of his guest]s money when he does not deposit it on the security of the inn, but intrusts it to another guest or inmate in whom he reposes his confidence.</p> <p>8. On whose credit the guest deposits his money, &e., at an inn is for the jury.</p>

<p>May 7th 1869. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., absent.</p> <p>Error to the Court of Common Pleas of Adams county: No. 77, to May Term 1869. ,</p> <p>To August Term 1866 of the Court of Common Pleas of Adams county, The Ashland Iron Company of Baltimore county brought an action of replevin against John Green and John Vanhyning and Enoch Lefever, for 450 tons of unwashed iron ore of the value of $1000. Green and Vanhyning claimed property, and gave bond to the sheriff: Lefever pleaded “ Non cepit,” Green and Vanhyning pleaded “ Property.” On the trial, August 18th 1868, before Fisher, P. J., the plaintiffs gavé evidence of their incorporation March 15th 1853, by the Circuit Court of Baltimore county, Maryland; also, their incorporation February 13th 1867, with increased powers by the legislature of Maryland; also, Act of April 10th 1867, Pamph. L. 1088, authorizing the plaintiffs “to purchase, hold and dispose of property real, personal and mixed, in fee simple or leasehold in York county or its adjoining counties,” &c.; also, Act of April 14th 1868, Pamph. L. 1068, which made the plaintiff capable of-suing and being sued in any of the courts of this Commonwealth, and provides “that any action instituted prior to the passage of this act, to which said company is a party and which is still pending, shall be treated as instituted under the provisions of this act.” They further gave in evidence the following:</p> <p>“Memorandum oe Agreement.</p> <p>“ 3000 tons first year.</p> <p>“ 4000 tons per year during the time the Ashland Co. keep the lease. No other person or persons to raise ore at said bank during the lease. To pay the rent quarterly for all mined from bank. Should anthracite iron rise to average price of $28, the rent to be 50 cents. Ashland Co. to pay 45 cents per ton from this time until average price of iron is $28 per ton. Ashland Co. agree to put on cars 12,000 feet hemlock 3-in. stuff at Wrightsville or Goldsboro’. The rent to commence 1st of April next.</p> <p>“ Signed Eeb. 3, 1859. Richard Green, Agt.</p> <p>Enoch Leeever.”</p> <p>Green was manager of the plaintiffs and authorized to make the agreement.</p> <p>The plaintiffs gave evidence of the mining of ore commencing in the spring of 1859, which was hauled out and remained on the bank; it had to be washed or screened before it was fit to be used or shipped. The screening is to separate it from the dirt: it cannot always be screened when hauled out, being too wet: screened ore is as good as any. The mining continued until January 1865, when Lefever requested the miners to stop, as he had sold the bank, and said he had reserved the ore; he gave the plaintiff until September 1st 1865 to remove it. A miner informed Lefever that plaintiffs wanted the ore, and would wash it as soon as water could be got. Plaintiffs’ hands continued to wash the ore till stopped by the cold weather in December. They commenced moving the unwashed ore July 1st 1866, and were stopped by an action of'trespass July 27th. He gave evidence, also, that in December 1865 Green, one of the defendants, informed plaintiffs’ hands that they would give them notice when they, the defendants, wanted the ore moved.</p> <p>On cross-examination a witness of plaintiffs, one of their own hands, stated that there was time to remove the ore before September 1865, if they had sufficient hands and plenty of water; that Lefever requested him frequently to go on and wash the ore. There was no interference by defendants until July 1866.</p> <p>Plaintiffs gave in evidence letters between their agent, J. C. Clarke, and Lefever. One dated January 1st, 1866, from Clarke, saying: * * * “ J directed Mr. Warfield to haul away the washed ore from the machine, then turn it around so as to he out of the way, of Mr. Green. As soon as the weather will permit I will send up our carpenter to move everything out of the way. As soon as we get our machine up we will wash out the screen ore. Hope this will he satisfactory. We do not give up our right to enter into the bank and take away therefrom the ore raised by us.”</p> <p>Lefever’s answer, dated January 4th, 18661 — “ I received your letter of the first, and it was all satisfactory to me, except the last sentence. * * Do you mean only to claim the ores that your men have already raised, or do you mean to say that you have the privilege of mining on my farm hereafter ? * * It is just and important for me to know. All the ore that your men raised prior to this date, I am willing you shall have.”</p> <p>Clarke’s reply, January 9th 1866 : — “ Your favor of 4th, duly to hand." In reply will say, we only claim the right to go upon, clean up and take the ore away which the Ash. Iron Co. has raised, all of which we hope to do before a great while. We do not claim the right to continue to raise ore upon your land, only to remove that we have raised. My letter of the 1st was only intended to convey the same claim as now stated.”</p> <p>There was evidence that the defendants were in possession of the premises and were working at the bank in the spring and summer of 1866, and Lefever in the presence of Clarke the plaintiffs’ manager recognised the defendants’ right to the possession. There was no evidence against Lefever. The plaintiffs having closed, the defendants offered in evidence an unstamped lease of the ore bank to themselves, to commence April 1st 1866, which on objection by the plaintiffs was rejected by the court.</p> <p>The plaintiffs submitted these points :—</p> <p>“ 8. The agreement between the Ashland Iron Company and Lefever, being a lease from year to year, commenced with 1st of April 1859, and had no definite termination; it could be terminated only by either party giving to the other legal notice to terminate it, three months prior to the commencement of the succeeding year. If the jury find that no notice was given to the Ashland Iron Company prior to the 1st of January 1865, to terminate the lease on the 1st of April 1865, the company held over for another year from April 1st 1865, and if no legal notice was given to the Ashland Iron Company prior to January 1st 1866, to terminate the lease on the 1st of April 1866, the Ashland Iron Company was in legal possession of the ore at the time of the service of the writs of trespass and replevin, and is entitled to recover the value of the ore mined by them there at that time.”</p> <p>Answer: “ The proposition of law, as stated in this point, is correct, unless the plaintiffs had abandoned their lease. Whether they had or had not, is for the jury to determine from the evidence.”</p> <p>“ 4. Under the terms of the lease, the Ashland company were entitled to legal notice to terminate the tenancy, and there is no evidence that any such notice was ever communicated to the said company.”</p> <p>Answer: “ This is correct. Whether the Ashland Iron Company had legal notice, is for the jury to determine from the evidence, subject to the direction of the court as to what constitutes legal notice.” * * *</p> <p>“ 6. The ore mined by the Ashland Iron Company is personal property, and does not pass to Green & Yanhyning under any lease made with them; they have no legal claim to it, and Lefever having disclaimed property in'it, the plaintiff is entitled to recover the value of the ore.”</p> <p>Answer: “ The ore mined by the Ashland Iron Company, under the provisions of the lease of February Bd 1859, is personal property, and does not pass to Green & Yanhyning under any lease made by them, unless specially transferred to them by the party having property in it.”</p> <p>The defendants submitted these points:—</p> <p>“4. The Ashland Company, under their agreement, had power to mine and take au'ay ore, but had no right to remove the soil mixed with ore, and cannot maintain this action of replevin against the parties in possession for refusing to permit them to remove the unwashed ore, or for converting it to their own use.”</p> <p>Answer: “ The facts stated in this point, if correct and in accordance with the facts proved in the case, will not prevent a recovery by the plaintiffs, if otherwise entitled to recover.”</p> <p>“ 5. The plaintiffs were a foreign corporation, having no legal existence in this state at the time this suit was instituted, and therefore cannot recover.”</p> <p>Answer: “ The court reserve this point, and direct the jury, if they find for the plaintiffs, to find subject to the opinion of the court; whether the plaintiffs can maintain an action in this Commonwealth.”</p> <p>The court, after referring to the evidence, &c., charged : * * *</p> <p>[“ It is contended that replevin will not lie for unwashed ore; but we think differently. If the plaintiffs mined it under their lease, they had a qualified property in the earth that surrounded it — the right to retain it for the purpose of washing out the ore, if they have not forfeited it.] * * * *</p> <p>“It is contended, whatever may be the facts in relation to the notice to terminate the lease, that Mr. Lefever, before he leased to Green & Yanhyning, gave the Ashland Company time to remove the ore until the first of September following. If he did, the Ashland Company had the right to remove it until that time expired.</p> <p>“ It is also contended, that after Green & Yanhyning made an arrangement with Lefever to mine the banks, one of the members of the firm gave the Ashland Company time to remove the unwashed ore. " If such an arrangement was made, the plaintiffs ought to have had a reasonable time given them to enter and remove the ore mined by them, before the defendants could remove it or use it themselves. If the defendants, Green & Yanhyning, or either of th'em, made such an arrangement with the Ashland Company, and did not allow a reasonable time to the Ashland Company to remove it, but removed it or used it themselves before the expiration of a reasonable time, they are liable to respond in damages to tbe plaintiffs for tbe value of any of tbe unwashed ore left by plaintiffs on the banks of the mine and used by the defendants. * * * * What would be a reasonable time, the jury will determine from the circumstances of the case.”</p> <p>The verdict was for the plaintiffs against Green and Yanhyning for $670,25 and in favor of Lefever.</p> <p>Green and Yanhyning removed the case to the Supreme Court, and assigned for error the part of the charge enclosed in brackets and the answers to the points.</p>

<p>May 7tb 1869. Before Thompson, 0. J., Agnew, Sharswood and Williams, JJ. Read, J., absent.</p> <p>Appeal from the Orphans’ Court of Adams county: No. 98, to May Term 1869.</p> <p>The appeal in this case was by George Myers and John Myers, executors, &c., of Jacob Myers, deceased, from the decree of the Orphans’ Court, reforming their administration account on a bill of review.</p> <p>The testator died in August 1865, leaving a widow and six children, and the children of a deceased daughter, who had been married to William Kohler. He left a will.dated May 26th 1862, by which, amongst other things, he directed as follows:—</p> <p>“ First and foremost, I order and direct that my farm with mansion-house be appraised by three substantial freeholders of the neighborhood, and the small property I now reside upon, may be together with the mansion farm appraised, or they may be taken separate, provided there can be more money made out of them, this I leave to the discretion of my hereinafter named executors.</p> <p>“ I order and direct that my son John Myers shall have the first choice to take the farm with the mansion-house at the appraisement, in connection with the property I reside upon, if so appraised together, or separate,-he may elect to both; and if he does decline to do so, then my son George Myers shall have the next choice to take the same upon the same offer, and should both decline to take it, then I order that it be sold as abbve directed, that is together, or separate, and be sold for cash; and should it be taken at the appraisement by any of my two sons, the same must be cash. I order and direct that the one-third of my entire real estate shall remain in said real estate for the use of my dear wife, should she survive me, the interest of which shall be paid to her during lifetime annually.” * * “I order and direct that all the money arising from my personal and real property, after charges and expenses are deducted, so remaining, shall be equally divided amongst my children, share and share alike,” &c. * * “ I order and direct the share coming to my daughter Nancy, now intermarried with Michael Nagle, shall he put in trust for her, during her lifetime, ^.nd the interest arising from the money of said share, after deducting costs of said trust, shall b.e paid to her annually during her lifetime, and after her death to be divided and go to her issue. And I direct that my daughter Nancy, may make choice of any person as trustee, in whose hands I order my executors to pay over said share or money.” * * “I order and direct the share of my daughter Lucy Ann, (now dec’d,) who was intermarried with William Kohler, shall remain in the hands of my hereinafter named executors, who are directed to pay to her children their several shares out of such share as they become of age, if they are not of age at or after my demise, and said executors shall stand as guardians for such as are minors, until they come to their proper age.” * * “And I declare this my will and testament, and in and the same of which wish to have carried out after my demise, and for the same, I nominate, &c., George Myers and John Myers, my sons, to be my executors, to all intents and purposes, and to be vested with all the powers appertaining to the office of executors, to carry into force and effect this my last will and testament.”</p> <p>The will was proved September 2d 1865, and on the same day the executors made an appointment of appraisers by the following instrument:—</p> <p>“We, George Myers and John Myers, executors of the last will and testament of Jacob Myers, &c., deceased, hereby appoint Christian Zinn, John.Stock and Michael Swartz, three substantial freeholders of the neighborhood, appraisers of the real estate of the said Jacob Myers, deceased, in pursuance of authority and directions given in the last will and testament of the said deceased.”</p> <p>The appraisers having been sworn to make a just appraisement, made the following:—</p> <p>“ A true and perfect inventory and just appraisement and cash valuation of the real estate of Jacob Myers, late of Hamilton township, Adams county, deceased, 158 acres and 57 perches, neat measure, of land, valued at $50 per acre, with improvements, situate, &c. Valuation amounting to $7917.81].</p> <p>“ Taken and appraised by us, this ninth day of September, A. D. 1865.”</p> <p>John Myers, by the following paper, elected to take the real estate:—</p> <p>“ I, John Myers, one of the sons and legatees named in the last will and testament of Jacob Myers, deceased, hereby elect to take all the real estate of my said father, at the valuation arid appraisement made thereof, as hereinbefore set forth and upon the terms directed in the said will, hereby binding myself to comply with the terms and mode of payment directed in said will.”</p> <p>This was executed by him under his seal, September 15th, 1865, and witnessed by Moses McClean and William MeClean, Esqs., who appear to have been his counsel.</p> <p>No notice appeared to have been given to the other legatees of the making of the appraisement. The appraisement was returned to the Orphans’ Court by the executors, with the acceptance of John Myers, and the executors prayed the court to approve the proceedings, and have them entered on their records. Exceptions were filed by other legatees ; the husband of one of them offering for the land $1600 above the valuation.</p> <p>On the 19th of March 1866, the court made a decree that the appraisement be set aside; and refused to allow it to be entered on the records of the court. From this decree the executors appealed to the Supreme Court, but having failed to prosecute the appeal, it was dismissed.</p> <p>On the 20th of July 1866, the executors filed their account, charging themselves with $8637.72 of which the sum of $7917.81 was stated to be the value of the real estate as ascertained by the above appraisement; the real estate having, been taken by John Myers under the will, &c.</p> <p>They took credit for $2639.27, the one-third of the valuation retained for the widow, $60, counsel fees and $250 their compensation as executors. This account was confirmed on the 26th of August 1867.</p> <p>On the 21st of May 1867 a number of the legatees presented a petition for a review of the account, specifying the above-mentioned items as errors.</p> <p>The court (Fisher, P. J.) ordered the review and struck out all the items specified, saying that as the executors had not faithfully executed their trust, they were entitled to no compensation.</p> <p>From the decree of the Orphans’ Court the executors appealed to the Supreme Court,- and assigned for error: 1st and 2d. Striking out the items relating to the real estate; and 3d and 4th. Striking out the items relating to the expenses of the accountants.</p>

<p>1. An action of debt was brought against three; one pleaded coverture; an award was found against the other two, and an appeal taken by one: the plaintiff suffered a nonsuit as to the married woman. Held, that he might recover in the same action against the others.</p> <p>2. A plaintiff in a joint action may enter a nolle pros, as to a defendant pleading matters personal to himself, as bankruptcy, infancy, coverture, &e.</p>

<p>May 10th, 1869. Before Thompson, 0. J., Agnew, Shars. wood and Williams, JJ. Absent, Read, J.</p> <p>Error to the Court of Common Pleas of Somerset county: No. 3, to May Term 1869.</p> <p>This was an ejectment, in which the writ was issued November 24th 1866, at the suit pf Hiram Eindlay and Michael Hay, against Joseph Keim, to enforce the performance of an agreement made between the plaintiffs and Jacob Keim, for the conveyance to them of 232 acres of land.</p> <p>On the 17th of October 1864, Jacob Keim, by articles, agreed to convey to the plaintiff the land in- dispute for $16,240; of which $3000 was to be paid on the 1st of April 1865, and $1000 annually, until all should be paid; the deed to be made on the payment of the $3000, and a mortgage given for the remainder of the purchase-money. Keim was to have the privilege of remaining on the premises till the 1st of April 1866 ; should he put in any winter grain, the plaintiff to have one-third in the shock. Shortly before April 1st, Jacob Keim declared to a witness that he would not make a deed to the plaintiffs, and that he had so notified them. The plaintiffs about that time tendered him the first payment, $3000, which he refused to receive. On the 30th of June, Jacob Keim sold the land to his son Joseph Keim, the defendant, who had knowledge of the sale to the plaintiffs: he entered into possession under the sale. On the 2d April,' 1866, the plaintiff tendered to Jacob Keim $4180, and a bond and mortgage for the deferred payments. Jacob Keim refused to accept the tender or to deliver a deed, informing the plaintiff that he had sold the land. On the 20th of October 1866, the plaintiffs brought an action of covenant against Jacob Keim. They declared on the articles of agreement and assigned for breaches, that Keim had not made a title for the land, had failed to deliver possession, and had not delivered one-third of the grain; they laid the dnmages at $15,000.</p> <p>Shortly after the action of covenant was brought, Joseph Keim made valuable improvements on the premises. On the 28th of September 1867 a rule of reference was entered by the defendant. On the 19th of October 1867 the plaintiffs gave notice, that at the hearing before the arbitrators they would confine their claim to the grain covenanted to be delivered, and that they did not claim anything by reason of the other breaches in the declaration. On the 9th of November the arbitrators awarded for the defendant, and on the 26th the plaintiffs appealed. On the 23d of March 1868 the plaintiffs, without leave of the court, discontinued the action of covenant.</p> <p>The wife of Jacob Keim, shortly after the execution of the articles, declared that she would not sign the deed, and continued her refusal up to the trial and at it.</p> <p>At the trial the plaintiffs made the following offer in writing, which was filed by leave of the court.</p> <p>“¡The plaintiffs in this case now in open court notify Jacob Keim, the plaintiffs’ vendor, and Joseph Keim, the defendant in this case, that they are ready and willing to receive, and hereby agree to take from Jacob Keim his deed for the premises mentioned in the agreement, without the signature of his wife. And they now deposit the sum of $6000, the amount heretofore tendered, which has been in court during the trial, together with the bond and mortgage tendered to Keim. The defendant to be permitted to take the money and lift the bond and mortgage by crediting thereon the amount paid on the same by the money tendered, upon his filing a deed from Jacob Keim to Findlay & Hay.”</p> <p>A number of points, not necessary to state, were submitted by each party.</p> <p>The following part of the charge of the court (Rowe, J.) presents the question on which the case was ruled in the court below, and that only considered in the Supreme Court:—</p> <p>“The plaintiffs then, on the 20th of October 1866, having offered to perform their part of the contract according to its terms, and Jacob Keim having refused to perform his part, were ready to ask of the courts a redress of their injury. They had three courses open to them, viz., a bill in equity to enforce the contract, an ejectment against the person in possession for the same purpose, or an action of covenant against Jacob Keim for damages. They chose covenant, and thereby declared in effect not only that they could be adequately compensated in damages, but that they preferred redress in that way to the getting of the land itself. But after they had elected to adopt this remedy, and while they were pressing for the redress it gave them, in a common-law form, while their action of covenant was still pending and undetermined, they brought this action of ejectment for the land itself. Thus, at the same time, they were demanding the land and damages, because they could not get the land. They were asking the courts to preserve the contract entire and operative, and to say, at the same time, that it was wholly and for ever broken and gone. This was blowing hot and cold with the same breath. The action of ejectment and the action of covenant, as here applied, are altogether inconsistent, and the plaintiffs were not entitled to both at the same time. It is certain that a plaintiff who has made his election by bringing an action shall not bring the first species of action for the same cause whilst the former is pending, or after it has been determined by a verdict. A plaintiff who has proceeded at law and recovered damages for breach of the contract, cannot afterwards sue for its specific performance ; nor can a defendant, after an action at law has been commenced against him for the breach of his agreement, go into ¡equity for a specific performance of it, unless under peculiar circumstances.</p> <p>“ The plaintiffs’ ejectment, — their action of covenant for the same cause, pending when it was brought, — was still-born, and no subsequent measure that they could adopt would serve in the least to vivify it. Their notice, a year after, that they confined their claim in the action of covenant to the damages for the nondelivery of the grain was therefore futile. It is proper to notice also that the action of covenant, even as restricted by their notice, would not lie at the same time with their action of ejectment, because in the latter action all the equities in respect of the subject-matter of it will be fully adjusted, and it is the policy of the law to avoid circuity of action. Further, their total discontinuance of the action of covenant long after the institution of the ejectment- suit, would not have enabled them to maintain the latter. But they did not discontinue it, because they could not, after award for the defendant and appeal by them, without leave of the court, which was not had.” * *</p> <p>“For the reasons now given, we think the plaintiffs cannot recover, and we direct you to find a verdict for the defendant.”</p> <p>The verdict was for the defendant.</p> <p>The plaintiffs took a writ of error, and in a number of specifications assigned the instructions of the court for error.</p>

<p>May 10th 1869. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Absent, Read, J.</p> <p>Error to the Court of Common Pleas of Cumberland county: No. 35, to May Term 1869.</p> <p>This was an action of ejectment by Peter M. Row and others, heirs of John Row, deceased, against H. H. Williams and others, for a lot of land in the borough of New Cumberland. The writ issued to November Term 1867.</p> <p>On the trial, before Graham, P. J., the plaintiffs gave in evidence a deed for the lot in dispute from James Feeman, a former owner of the lot, to John Row, under whom they claimed as their ancestor. They also gave in evidence proceedings in equity in which the present defendants were complainants and Row, the ancestor of the plaintiff, was respondent.</p> <p>The bill in those proceedings set out, that the complainants were heirs at law of John Gurtner, who died about the year 1864; that about the year 1857 Gurtner contracted with Feeman for the lot in controversy for the consideration of $150; that the deed, at Gurtner’s instance, was made to Row; Gurtner took possession; paid Feeman $87; built a shop and other improvements on the lot to the value of about $425; that the deed made to Row was designed to be in the nature of a mortgage to secure him the amount advanced by him to Gurtner towards the purchase-money. Row never was in possession, and frequently declared that when he was paid his advance he was to make a deed to Gurtner for the lot; after Gurtner’s death, the complainants tendered to Row the money due him and demanded a conveyance, but Row refused to receive the money or make the .conveyance, claiming to be the owner of the lot. The bill concludes, “ In consideration of which, and also that your orators may have discovery of the matter aforesaid, and to the end therefore that the defendant may, if he can, show why your orators should not have the relief hereafter prayed for,” &c., the complainants prayed that the respondent should be required to appear and make “ answers to all and singular the premises, and further to stand to and abide by and perform such further order, direction and decree as to the court may seem meet, and that your orators may have such other and further relief as equity and good conscience may require.”</p> <p>There were five interrogatories appended to the bill: 1. Did Row hold a deed for the lot from Feeman, when was it conveyed, what was the contract between Row and Feeman before the deed was made, when and by whom the improvements were put on ? 2. Had Gurtner anything to do’ with purchasing the lot, and what; how did Row become a party to the deed; what agreement was there between Gurtner and Row ? 3. How much purchase-money did Row and Gurtner respectively pay, why did Gurtner take possession, and why did Row allow it ? 4. Had Row and Gurtner any settlement as to the purchase-money, and what did the settlement involve ? 5. Why did Row refuse to convey the legal title to Gurtner’s heirs, and whether Row would convey to them, and, if so, on what terms ?</p> <p>Row in his answer denied, at much length, the averments in the bill; especially averred that the conveyance to him was absolute. A replication was filed. After hearing, the court dismissed the bill, and directed the complainants to pay the costs. The plaintiffs, after giving evidence of possession by the defendants and the improvements, closed.</p> <p>The defendants then offered to show that Gurtner contracted with Feeman for the purchase of the lot in dispute; that Row •took no part, and was not known by Feeman in the contract; that previous to the execution of the deed, Gurtner arranged with Row for the loan of $100, with the understanding that the deed for the said lot should he made by Eeeman to Row as security; that Gurtner paid Eeeman $37 of the purchase-money, and Row paid him $100, and the deed was made to Row;. that it was agreed between Row and Gurtner that, on the payment of the $100 by Gurtner, Row was to make title to Gurtner; that Gurtner immediately took possession of the lot, and made improvements on it, equal in value to the lot itself; that it was assessed in his name, he paid the taxes and held possession until 1864, using it as his place of business, and paying Row $6 per annum interest on the money loaned; that Row acknowledged to different persons that Gurtner had paid part of the purchase-money to Feeman, and that he held the deed as security for the $100 which he had paid for Gurtner; that when Gurtner repaid the $100 he would be entitled to have the deed in his own name; that Row never exercised any right of ownership over said lot, but had repeatedly declared that the lot belonged to Gurtner; that the defendants tendered to Row the $100, together with the interest thereon due, and Row said that the arrangements hereinbefore stated had been made, but that they had been made with Gurtner, that he was now dead and the lot had risen in value, and therefore he declined to accept the money.”</p> <p>They offered, also, other evidence tending to show that the transaction was a mortgage only to Row.</p> <p>Both, offers were rejected by the court, on the ground that the decree in equity was conclusive; and several bills of exception were sealed for defendants.</p> <p>The court instructed the jury that under the evidence the proceedings in equity were conclusive, and therefore they should render a verdict for the plaintiffs. The jury accordingly found for the plaintiffs. The defendants took a writ of error, and assigned for error the rejection of their offers of evidence and the charge of the court.</p>

<p>1. Sparks conveyed unimproved land to Hollar in 1837 by deed absolute on its face: in 1867, parties claiming under Sparks alleged the conveyance was in trust. The burthen was on them to show the trust, and that it had been recognised and kept alive by the acts and declarations of the parties.</p> <p>2. Those claiming under Sparks were bound to show, by clear and satisfactory evidence, that there was a trust in his favor, and that he had taken possession of the land or exercised such exclusive acts of ownership within twenty-one years from the time the trust arose,, as would prevent its extinguishment.</p>

May lltb 1870. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ. Error to the Court of Common Pleas of Somerset county: No. 66, to May Term 1869. John D. Roddy, on the 1st of April 1868, brought an action of ejectment against William S. Harah.for a tract of 200 acres of land in Upper Turkeyfoot township. The land was known as the “ Cupp” or “Weimer” tract.

<p>1. Proceedings by a landlord to recover possession were commenced by the justice by a summons in debt in which no reference was made to a complaint ; the defendant appeared on the return day, but refused to remain to make defence or hear testimony. Held, that this did not waive the irregularity in the summons.</p> <p>2. Under the Act of 1863 (Landlord and Tenant) and supplements, the justice must find that the plaintiff was peaceably possessed of the premises and delivered them to the tenant or some one under whom he claims, that the term is fully ended and he gave three months’ previous notice of a desire to repossess.</p> <p>3. The facts found by the justice must appear in the record of the judgment or by reference to the complaint, if fully set forth therein.</p> <p>4. The jurisdiction under the Landlord and Tenant Act is special, and the record of the magistrate must contain every essential to support his judgment.</p> <p>5. Nothing which ought to appear in such proceeding can be taken by intendment.</p>

<p>May 11th 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.</p> <p>Error to the Court of Common Pleas of Franklin county: No. 92, to May Term, 1869.</p> <p>This case originated before a justice of the peace, between Upton Washabaugh, plaintiff, and David Gehr, defendant, and was removed to the Court of Common Pleas on the 15th of April 1867. The claim was on a book account for ale and beer, alleged to have been sold and delivered by the plaintiff to the defendant.</p> <p>Before the trial, the plaintiff died, and D. 0. Gehr, his executor, was substituted.</p> <p>On the trial before Rowe, J., November 18th 1868, the plaintiff offered a book as a book of original entries, and testified that it was found at the decedent’s house, and that the entries were in his handwriting.</p> <p>S. Armstrong testified that, before the justice, the charges in the account presented by the plaintiff were not objected to by the defendant.</p> <p>A. Eiker, who delivered the ale, &c., for the plaintiff, testified that he delivered ale, &c., during the summer of 1863, to the defendant, and that he kept pass-books; the plaintiff, who was sick, kept a larger book, in ledger form, at his house, and transcribed the accounts from the pass-book into the larger book. Always, when witness came home from a trip, plaintiff entered the charges and credits which witness gave out from the pass-book in witness’s presence. The items were transferred from pass-book “ within a couple of dayswhen plaintiff was well, they were transferred every evening.</p> <p>The court admitted the ledger in evidence against the objection of the defendant, and sealed a bill of exceptions.</p> <p>The account in the ledger was the following:—</p> <p>Dr. DAVID HOOVER, Or.</p> <p> </p> <p>The defendant gave evidence for the purpose of showing errors in the credits in plaintiff’s books.</p> <p>The defendant submitted this point:—</p> <p>“ The plaintiff having proved that the original entries of the account against defendant were made in a pass-book at the time of the delivery of the ale, and having failed to show when said entries were copied by Washabaugh into the ledger, the ledger is not competent proof of plaintiff’s claim, and the jury must disregard the book produced in court.”</p> <p>The court submitted the case to the jury on the evidence as to whether the ledger was a book of original entries, and in answer to the point said: — “ This point, as applied to the testimony in this case, is not affirmed. There is some evidence as to when the transfer was made from the pass-book into the larger book.”</p> <p>The verdict was for the plaintiff for $30.40.</p> <p>The defendant took a writ of error, and assigned for error the admission of the book in evidence, and the answer to the point.</p>

<p>May 11th 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.</p> <p>Error to the Court of Common Pleas of Fulton county: Of May Term 1869, No. 82.</p> <p>In the court below this was an amicable action of debt, entered April 2d 1868, in which Henry W. Scott, guardian of George W. Cooper, was plaintiff, and James Cooper, executor of William Cooper, deceased, was defendant. A case was stated, embodying these facts.</p> <p>William Cooper, the decedent, died about the 9th of January 1867, unmarried, and without lawful issue, having made his will which was proved on that day, and which contained the following bequest: — ■</p> <p>“ I give and bequeath to George Washington Cooper, &c., two thousand dollars; and I direct that my executor shall expend such portion of said two thousand dollars as shall be necessary to give to said George Washington Cooper a thorough classical education,-,if said George Washington Cooper should desire such education ; and I direct that what amount of said two thousand dollars may not be expended in the education of said George Washington Cooper, shall be paid to him by my executor when he becomes of age.”</p> <p>He then gave several other legacies, and devised a farm to his brother James Cooper, whom he made his-residuary legatee and executor. George Washington Cooper is a natural son of the testator, is a minor, and has no other estate but the above-mentioned legacy.</p> <p>“ If the court be of the opinion that the plaintiff, as guardian of George Washington Cooper, is entitled to recover the principal of said legacy in this action, before his said ward attains the age of twenty-one years; and, further, that said legacy bears interest from the death of said William Cooper, then judgment to be entered in favor of the plaintiff for $2150, the principal and interest of said legacy until this date; but if the Court shall be of opinion that the principal of said legacy is now recoverable from said defendant, but that it does not bear interest, then judgment to be entered for the plaintiff for $2000 ; but if the court shall be of the opinion that said legacy bears interest from the death of the testator, and that the principal is not, at this time, recoverable, then judgment to be entered in favor of plaintiff for $150, that being the amount of interest now due; but if the court shall be of the opinion that the principal is not recoverable during the minority of the ward and that the legacy does not bear interest at all, then judgment to be entered for defendant.”</p> <p>The court (Rowe, J.) delivered the following opinion:</p> <p>“ We think this legacy vested at the death of the testator, that the executor was to take charge of it until G. W. Cooper should be sui juris ; that the relation of the executor to the legatee was, to all ordinary intents and purposes, that of testamentary guardian; and that the legacy bears interest from the death of the testator.</p> <p>“We are of opinion, therefore, that the legacy bears interest from the death of the testator, and that the principal is not at this time recoverable from the defendant, and we direct judgment to be entered in favor of the plaintiff for $150.”</p> <p>Judgment having been entered accordingly, the defendant sued out a writ of error and assigned for error so entering judgment.</p>

May 11th 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ. Appeal from the Orphans’ Court of Franklin county: of May Term 1869, No. 30. The appeal in this ease was by James Patton and John Ruthrauff, from the decree of distribution of the Estate of Washington Crooks, deceased. In January 1854, the decedent was appointed guardian of two minor children of Daniel Stahl, deceased, and Thomas Pauling became his surety.

May 11th 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ. Writs of error to the Court of Common Pleas of Cumberland county: No. 43J and 44, to May Term 1869. These cases were actions of debt, that in which the first writ of error was issued was commenced November 2d 1868, at the suit of the First National Bank of Carlisle against Henry Hiekernell.

May 11th 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ. . Error to the Court of Common Pleas of Bedford county: No. 34, to May Term 1869. This was an action of assumpsit brought, December 11th 1867, by John Cessna against Jonathan Bowser. The cause of action arose upon the following facts. The plaintiff being the owner of certain real estate, exposed it to public sale on the 31st of August 1867, and it was struck down to the defendant for $2600.

<p>May 11th 1869. Before Thompson, O. J., Bead, Agnew, Sharswood and Williams, JJ.</p> <p>Certiorari to the Court of Quarter Sessions of Somerset county: Of May Term 1869, No. 46.</p> <p>On the' 20th of March 1868 (February Sessions) on the petition of Isaac Hugus, the court appointed fí. D. Altfather, Peter R. Hillegas and Valentine Muller viewers to vacate a private road from a point near the petitioners barn to Metzler’s mill. On the 4th of May, the first day of the next term, on motion of the petitioner’s attorney, G. N. Smith was substituted in the place of Muller, who neglected to attend, and his appointment was endorsed on the original order. Same day report of viewers, that they had viewed the road, and that it was useless, &c., was filed.</p> <p>Metzler filed these exceptions to the confirmation of the report:</p> <p>1. There was no notice of the meeting of the viewers given to Samuel Metzler, the party in interest. ■</p> <p>2. A new viewer was appointed on application of the counsel for the petitioner and a view had, on the same day without any leg^l notice to Samuel Metzler, the party in interest. Depositions were taken and there was evidence that Metzler had notice before and on the 4th of May that the view would be had on that day. On the 28th of November 1868, the report was confirmed absolutely. Metzler took a certiorari from the Supreme Court and assigned for error, that the court erred,</p> <p>1. In appointing G. N. Smith a viewer, and receiving his report and entering a confirmation nisi at the same term.</p> <p>2. In confirming the report of the viewers when no reasonable notice had been given to Samuel Metzler, the party in interest, of the time when the viewers met.</p> <p>8. In allowing depositions to be taken to prove notice to Samuel Metzler, when the viewers in their report do not assert that notice was given.</p>

May 11th 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ. Error to the Court of Common Pleas of Somerset county: No. 78, to May Term 1869. This was a scire facias at the suit of the Commonwealth, to the use of Mary C. Miller, against Michael Snyder and Henry D. Snyder, administrators, &c., of Dewalt Snyder, deceased, on a transcript from the Orphans’ Court of the balance appearing to be due on the administration account of the defendants.

May 11th 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ. Error to tbe Court of Common Pleas of Bedford county: No. 2, to May Term 1868. This was an action of ejectment, for about 103 acres of land, at the suit of James Madara and Gr. H. Spang, against Abraham Eversole: the writ was issued February 1st 1866. The case was tried February 21st 1867 before Taylor, P. J., of the 24th district.

<p>1. A surety having no defence of his own can set up none of which his principal could not avail himself.</p> <p>2. A note was given to a married woman by a firm of which her husband was a member with G. as surety: in a suit by her against G. or against the firm, if the defendants could set up want of consideration or fraud, the bur-then was on them.</p> <p>3. A promissor or obligor in an instrument to a wife, reciting a consideration, does not sustain to her the relation which the creditors of the husband or representatives of his estate sustain.</p> <p>4. The promissor admits himself to be indebted to her and not to her husband, and he cannot set up fraud between the wife and himself.</p> <p>5. In a suit against the surety of a firm on a note to the wife of one partner, the defendant gave evidence that on the date of the note the husband had deposited to the credit of the firm a sum from his own means about equal to that for which the note was given. The wife might show that the husband was indebted to her in an equal or greater amount from her separate ■estate.</p> <p>6. The wife had given evidence that she had about that amount of separate estate nine years before the date of the note. She might prove that a witness at that time saw in the possession of the wife a note for a similar amount with the signature of the husband, and that he then admitted it was' his wife’s money.</p>

<p>1. Neither the 1st section of Act of March 20th 1810 (Justices), nor the 13th section of the Act of March 21st 1772 (Landlord and Tenant), bear on the question of proceedings under the Act of December 14th 1863 (Landlord and. Tenant).</p> <p>2. Under the Act of 1772, the process can be removed to court only when the tenant shall allege that the title is claimed under a right since the commencement of the lease, by descent, deed or under the will of the lessor.</p> <p>3. The only remedy under the Act of 1863 for the tenant is appeal generally.</p> <p>4. When proceedings under the Act of 1863 are in court by an appeal from the justice, the plaintiff must show a tenancy, which is the foundation of the jurisdiction.</p> <p>5. The tenant may set up any defence which he could in an ejectment by his lessor; that his title had expired by his own act or by act of law; or that the lease had been accepted by fraud or misrepresentation, which would show there was no tenancy.</p> <p>6. A jury informed the court that they could not agree, and the court ordered their discharge, but afterwards, and before the discharge had been recorded, they announced that they had agreed, and the court recorded the, verdict. Held, to be correct.</p> <p>7. So long as the jury had not separated and left the court-room, and their discharge was not recorded, the verdict might be received.</p>

<p>May 11th 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.</p> <p>Error to tbe Court of Common Pleas of Cumberland county: No. 60, to May Term 1869.</p> <p>In tbe court below this was an amicable action and case stated, in which Abraham Bosler, administrator, d. b. n. c. t. a., of Nathan Woods, deceased, was plaintiff, and David S. Kerr,’administrator &c., of ’N. J. Ramsey Woods was .defendant. The action was entered April 30th 1869.</p> <p>The following facts were agreed to in the case:—</p> <p>Nathan Woods, the plaintiff’s testator, died about September 1853. By his will, amongst other provisions, he made the following</p> <p>* * * “ I give and bequeath to my granddaughter, Martha Jane Stuart, the sum of $5000, to be paid to her when she shall arrive at the age of twenty-one years, but if she should die before she arrives at, the age of twenty-one years without lawful issue, then my will is that the $5000 hereby bequeathed’ to her shall be paid as follows,” &c. * * * “I will and direct that my executors hereinafter named, shall as soon after my decease as they shall judge most for the interest of my heirs, make sale of all my estate in the western part of Pennsylvania, in the county of Crawford, and that the money thence arising, together with any other moneys coming into their hands belonging to my estate, after retaining a sum sufficient to pay the legacy bequeathed to my granddaughter, shall be divided into four equal shares and paid share and share alike to my sons James R. and Richard C., and to my daughter Margaret R. The remaining fourth part to be retained by my executor until my granddaughter Martha Jane Stuart shall have obtained the age of twenty-one years: the interest in the same to be paid annually and every year to my daughter Margaret, to be expended by her in the support and education of my said granddaughter, and in the event of my said granddaughter dying before she shall attain the age of twenty-one years, then I will and direct that the portion of this residue retained for her shall be paid in equal shares as is directed above in reference to the $5000 bequeathed to her,” &e. * * * * “I direct that my western land shall not be sold until three years after my decease. Item — I hereby constitute and appoint my son James Ramsey Woods my sole executor of this my .last will,” &c. The executor is N. J. Ramsey Woods, the"defendant’s intestate. He fully administered the estate and filed a full account of his administration on the 22d of March 1864, which was referred to an auditor, and the report of said auditor confirmed on the 15th day of August 1865.</p> <p>“N. J. Ramsey Woods, the executor, died, having in his hands the said sum of $5000, and David S. Kerr, the defendant, took out letters of administration on his estate, on the 6th day of January 1866. Abraham Bosler, plaintiff in this case, took out letters of administration de bonis non cum testamento annexo, on the estate of Nathan Woods, deceased. Nathan Woods, deceased, left three children, N. James R. Woods, Richard C. and Margaret, and a granddaughter, Martha Jane Stuart, the child of a deceased daughter, whose father is still living and a farmer in comfortable and easy circumstances, abundantly able to support his children in any way he thinks proper.</p> <p>“R. C. Woods, Margaret Woods, and D. S. Kerr, the defendant, for the estate of his intestate, claim to be paid the interest on the aforesaid sum of $5000 during the minority of the said Martha Jane Stuart, and that the principal thereof forms part of the estate of the said Nathan Woods, deceased, unadministered, to which the plaintiff is entitled.</p> <p>“ The plaintiff claims the said legacy of $5000, with interest from the 4th day of January 1867, less the amount paid to Margaret Woods.</p> <p>“ If the court should he of the opinion that the $5000 legacy aforesaid forms part of the estate of Nathan Woods, deceased, and payable to his administrator de bonis non, &c., then judgment to-be entered for that amount; and if he be entitled to interest also, then judgment acccordingly; the amount to be ascertained by an auditor to be appointed by the court. But if otherwise, then judgment for the defendant.”</p> <p>The court, Graham, P. J., delivering the opinion, made the following order:—</p> <p>* * * “ The plaintiff is therefore entitled to recover the fund of $5000 with interest thereon from a reasonable time, say four months, after it was realized from the sale of the Crawford county lands, except so far as James R. Woods was entitled to retain the interest (one-fourth part), in his own right. In accordance with the terms of the case stated, that an auditor should be appointed, we appoint James R. Irvine, Esq., auditor, to ascertain the indebtedness of the defendant -to the plaintiff, which consists of the aforesaid $5000, and the interest thereon, as aforesaid so far as the same has not been paid by the executor of Nathan Woods in his lifetime, crediting taxes paid on the investment and a reasonable compensation to the executor of Nathan Woods, deceased, for investing the fund and receiving the interest thereon. Also that the auditor report a statement and account with each of the residuary legatees, showing the balance, if any, due to each, the aggregate amount due to the residuary legatees, and the legacy of $5000, payable to Miss Stuart, will form the amount for which the plaintiff will be entitled to judgment for distribution under the will of testator.”</p> <p>The auditor made a report which was confirmed February 3d 1869, and judgment rendered for plaintiff for $6639.37, of which $819.68 is for use Margaret R. Woods, and $819.68 for use Richard C. Woods.</p> <p>The defendant took a writ of error and assigned for error the judgment above stated.</p>

<p>May 12th 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.</p> <p>Error to the Court of Common Pleas of Franklin county .‘No. 84, to May Term 1868.</p> <p>In the Court of Common Pleas of Franklin county, James McGaughy, on the 26th of December 1866, brought an action of assumpsit against Nancy J. Horner, executor of Robert Horner, deceased. The claim of the plaintiff was for services rendered the testator by working on his farm, &c., and against the executrix personally. The testator was the plaintiff’s uncle, and had been his guardian; the time for which compensation was claimed was about two years.</p> <p>On the trial, April 16th 1868, before Rowe, J., the plaintiff exhibited his book account, with the affidavit required by the rule of court and rested. The account against the testator was from March 29th 1861 until February 7th 1866, and against the executrix from May 6th 1866 to June 1st of that year.</p> <p>The defendant admitted that she owed $11 of the account as due by her personally. She also gave in evidence the will of the testator, dated August 18th 1865, and proved May 7th 1866, by which he gave to the plaintiff $500, and directed that it should be paid “inside of one year from the date of his decease.” It was admitted that this legacy had'been paid. She gave evidence also by A. H. McGfaughy, a brother of the plaintiff, who testified that he had been present at a settlement between the testator and the plaintiff about the beginning of the year 1865; the testator had been guardian for the plaintiff and witness; on settlement the plaintiff fell $30 in the testator’s debt; witness did not know what was taken into the account, or whether it was a final settlement. The plaintiff had a horse for sale, for which the testator said he would give plaintiff $90 and forgive the $30; this was agreed to, and the $90 paid to the plaintiff. The transactions that day were spoken of as a settlement. The plaintiff had been living with his uncle “ off and on ” since he was a small child. The plaintiff had no account at the settlement. The witness settled the guardianship matters with his uncle at the same time. The testator was in ill health, and said he would settle with them, as he might not live long.</p> <p>The guardianship account of the testator, confirmed January 18th 1865, showed a balance of $31.32 due the guardian. Amongst other points the defendant submitted the following :—</p> <p>“ The giving of the legacy named in the will, being for a sum exceeding the amount of plaintiff’s claim, is a complete satisfaction of the debt.”</p> <p>The court answered: “ This point as applied to the circumstances of this case, must be negatived; this case presents an exception to the general rule here enunciated, perhaps a little too broadly.”</p> <p>After referring to the evidence of the settlement, what it included, &c., the court charged:—</p> <p>“ If you find that there was no settlement of these accounts sued for, but only of the balance on the guardianship account, then the plaintiff may recover his whole claim, deducting the credits allowed. All that has been said before, is simply that proof of a full settlement at any date, excludes all the plaintiff’s account before that date.</p> <p>“ But there are some other questions -first to be decided. The account of plaintiff runs from the 14th of March 1861 to the 7th of February 1866. The deceased made his will the 18th of August 1865, giving therein a legacy of $500 to plaintiff, his nephew. If you believe from the evidence that he intended the legacy to be in satisfaction of the debt, then all the items of plaintiff’s account, prior to the date of the will, will be excluded. Unless you can gather from the evidence and will that there was such intention in giving the legacy, the mere fact of the legacy to the plaintiff will not prevent the plaintiff’s recovery. [The account is a running account and unliquidated, and there are items before and after the date of the will, and these facts make an exception to the general rule, that a legacy to a creditor equal to or greater than his debt, payable at once and not uncertain or contingent, is to be regarded as intended to be in satisfaction of the debt.]</p> <p>“ If the settlement spoken of by A. H. McGaughy, as having taken place in January or February 1865, between plaintiff and R. C. Horner, was intended to be a settlement in full of all accounts, and this claim sued on was not brought forward by plaintiff, then that fact is evidence tending to show that the claim had been previously paid or settled, or was not intended to be collected. You will probably consider it a weighty fact against the plaintiff, but you and not the court are to say what weight there is in it. * * ”</p> <p>The verdict was for the plaintiff for $235.</p> <p>The defendant took a writ of error. She assigned for error the part of the charge in brackets; the answer to the point, and that in the answer the court gave a binding instruction to the jury.</p>

<p>May 12th 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.</p> <p>Error to the Court of Common Pleas of Franklin county: No. 57, to May Term 1869.</p> <p>This was an issue under the Sheriff’s Interpleader Act, in which Samuel Baugh and others, trading as Prichett, Baugh & Co., were plaintiffs and claimants, and Jacob B. Cook was defendant. The issue was ordered December 30th 1868. Several judgments had been recovered against John B. Cook; amongst others, one in favor of Jacob B. Cook for $2500. Executions were issued on all the judgments, placed in the hands of the sheriff November 28th 1868, and certain hides, the property in dispute, levied on.</p> <p>John B. Cook, the defendant in the executions, who was a tanner residing in Franklin county, was called by the plaintiffs and testified that about May 1868 he owed the plaintiffs beween $2000 and $3000. He went to their place of business and told them he wanted to buy hides for his tannery, but could not buy them unless he got them on time. They agreed to let him have hides on these conditions, viz.:—</p> <p>“ They would furnish me with the hides at the regular cash prices; I should receive the hides, tan them, and return the leather to them; and then, after deducting the price of hides, commission and interest, and other current expenses, all above that the leather would command was to be credited to my account.”</p> <p>They furnished witness four different lots of hides under this arrangement.</p> <p>On cross-examination the witness stated that bills were given to him in the usual form for each lot of hides as he received them. He paid part of the freight on the hides, and the balance was charged to him; he furnished the bark for tanning the hides and paid for the labor; after he received the hides, the plaintiffs, at his request, paid him $400 and $500 at different times.</p> <p>Certain bills were exhibited, headed respectively: “ Sales of leather on account of John B. Cook” and “ J. B. Cook in account current with Prichett, Baugh & Co.” These accounts contained charges for hides, freight, carting, insurance, commissions, guaranty, interest and credits for amount of sales. The hides levied on were hides furnished under the foregoing arrangement.</p> <p>On the 9th of December 1868 witness signed statements appended to certain bills marked A, B, C, and D, dated respectively June 30th, July 15th, August 4th and September 80th 1868, each being for hides furnished to witness by Prichett & Co. The bills had been in the hands of witness till December 9th 1868, when he gave them to Mr. Prichett, at his request. He testified that according to the arrangement he was bound to return to Prichett & Co. the same hides in the shape of leather, and not to sell them to any one else.</p> <p>The statement, except the date, was the same to each bill, and was as follows:—</p> <p>“ The right of ownership in above described hides to be and remain in said Prichett, Baugh & Co., I agreeing to return to them the entire amount of leather produced from the manufacture. They are to charge interest and five per cent, commission, and the balance (over and above the amount of invoice of hides, interest and commission), to be credited on my account.</p> <p>“John B. Cook.”</p> <p>“Philadelphia, Pa., June 30th 1868.”</p> <p>These bills with the appended statements were offered in evidence by the plaintiffs, but were rejected by the court, and a hill of exceptions sealed.</p> <p>The plaintiffs submitted these points :—</p> <p>“ 1. If the jury believe from the evidence that the hides in dispute were furnished by Prichett, Baugh & Co.' to John B. Cook upon the following contract, to wit, &c. (that- testified to by Cook), this was such a contract as the parties might legally make, and the plaintiffs are entitled to the verdict.</p> <p>“ 2. If the jury believe from the evidence that the contract between Prichett, Baugh & Co. and John B. Cook was as is stated in the 1st point, then the form in which the bills and accounts between them were made out is of little weight in determining this controversy.</p> <p>“ 8. If the jury believe that the defendant’s judgment upon which the hides in dispute have been levied existed prior to the contract and delivery of said hides to said John B. Cook, then the execution-creditors claiming this property are not in a legal position, and have no right to controvert the validity of the alleged contract.”</p> <p>The court (King, P. J.) charged:—</p> <p>“Upon all the facts in this case, about which there is no dispute between the counsel, the court is of opinion that it is controlled by the case of Jenkins v. Eichelberger, 4 Watts 121, and your verdict must therefore be for the defendant.”</p> <p>The jury found for the defendant, and the plaintiff sued out a writ of error.</p> <p>They assigned for error the rejection of their offer of evidence, the refusal to affirm their points, and the instruction to the jury to find for the defendant.</p>

<p>1. Although a guardian may he appointed for minors of the same parent by the same order, the guardianship is several and not joint, and the guardian should settle distinct accounts.</p> <p>2. A decree in the Orphans’ Court that there is a sum due by an accountant, is a decree for the payment of the sum found to be 'due, for which the court may order a fi. fa. against the accountant.</p> <p>3. A fi. fa. on a decree in the Orphans’.Court, and a venditioni, may be directed, notwithstanding more than five years have elapsed since the decree.</p> <p>4. The law has not provided for a scire facias on such decree.</p> <p>5. Land was levied on under a fi. fa. out of the Orphans’ Court, and a rent fixed by the inquest: the plaintiff did not signify in writing that the defendant might retain the land at the rent, but the defendant endorsed on the writ that he agreed so to retain it, was permitted to retain it and the plaintiff received the rent for several years. The plaintiff would not be permitted to issue a venditioni, without a failure in the semi-annual payment of the rent, and the defendant was estopped from denying the plaintiff’s election.</p> <p>6. The court would allow the plaintiff to file his acceptance nunc pro tunc, in order to make the record complete to support the title under a venditioni.</p> <p>7. Under the Act of April 21st 1846 (Orphans’ Court), real as well as personal estate may be sold under a venditioni from that court.</p> <p>8. A certificate of the balance against the accountant was filed in the Court of Common Pleas, and the lien revived by a scire facias there. This did not prevent the issuing of a venditioni from the Orphans’ Court.</p>

<p>1. Kimmell, an attorney, collected money for Bittner, and remitted the amount by the draft of one bank on another payable to Kimmell’s order and endorsed by him. The client received the money, and directed Kimmell “ to send the balance in the same way.” Kimmell sent another sum in the same way; the draft was received by Bittner, but before it could be collected the drawer failed, and it was not paid. Held, that Kimmell was not liable as endorser.</p> <p>2. The endorsement was intended merely to trausfer Kimmell’s legal right to his client, not to incur a responsibility as endorser.</p>

<p>I. A wife who has separated from her husband cannot maintain an action against him for her separate property under the Act of April 11th 1856 (Husband and Wife), unless she had reasonable cause for leaving him.</p> <p>2. If the ill-treatment of a wife is such as would entitle her to a divorce, is justified in leaving her husband.</p> <p>3. The Act of Assembly distinguishes cruelty, &e., from indignities to the person.</p> <p>4. To entitle a wife to a divorce for cruelty, &c., there must be actual personal violence, or the reasonable apprehension of it, or such a course of treatment as endangers life or health and renders cohabitation unsafe.</p> <p>5. A single act of cruelty may be so severe and with attending acts of such atrocity as to justify a divorce.</p> <p>6. JMo single act of cruelty that comes short of endangering life is sufficient to justify a divorce.</p> <p>7. No single act of indignity to the person is sufficient for a divorce: there must be such a course of conduct or continued treatment as renders ■the wife’s condition intolerable and life burdensome.</p> <p>8. The indignities to the person need not be such as to endanger life or health ; but such as would render life too humiliating to bear.</p> <p>9. Offers of reconciliation and support by husband in this case, not sufficient.</p> <p>10. When a husband uses his wife’s money with her consent for the benefit of the family, without agreement to pay interest, he will not in general be liable for interest.</p> <p>II. If the husbandfreceives his wife’s money for her use and appropriates it to his own without her permission, he will be liable for interest.</p>

<p>May 12th and 13th 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.</p> <p>Appeal from the decree of the Orphans’ Court of Cumberland county: No. 102,4o May Term 1869.</p> <p>The appeal was by Lewis Robinson and Ellen his wife, late Ellen Glancey, in the estate of William Glancey, deceased.</p> <p>On the 21st of August 1866, Adam Peffer, and Elizabeth his wife in her right, petitioned the Orphans’ Court, setting forth the death of the decedent intestate, leaving four children, viz : Mrs. Peffer, Esther and Margaret Glancey, and Ellen, now intermarried with Lewis Robinson, that the intestate died seized of certain real estate in Carlisle, and prayed the court to award an inquest to make partition. On the 21st of August the inquest was awarded. The inquest returned that the real estate could not be divided, &c., and valued it at $2600. Notice of the taking of the inquisition having been given according to the order of court, the inquisition was confirmed October 23d, and a rule granted on the parties to accept or refuse the real estate at the valuation. Exceptions were filed by Robinson and wife.</p> <p>On the 1st of March 1867, the parties, being all the children of the decedent, filed an agreement “ That they will immediately make arrangements for an amicable and equal division of the personal property; and if they cannot agree among themselves on said division, William M. Penrose and W. H. Miller, Esqr’s., shall select three persons who shall make said division. And it is further agreed that all objections to the proceedings in partition Shall be withdrawn ; that the same shall be held under advisement, —all parties agreeing that neither of them will take said property at the valuation, and that the rule to take, &c., shall be considered as answered to that extent. The matter shall thus lie over until the Orphans’ Court succeeding the regular term in November next, when if said parties find they cannot live agreeably together, the court shall grant an order to sell the premises at public sale, on the application of either of them.”</p> <p>On the 17th of December, Margaret and Esther Glancey, petitioned the court, averring their inability to live agreeably with Robinson and wife, and prayed the court to grant an order to Augustus A. Line, administrator of the decedent, to sell the real estate. The court issued the order as prayed for, and on the 17th of March 1868, the administrator returned that “ he did not sell on said order because on the 23d of December 1867, Lewis Robinson and Ellen his wife in right of said Ellen appealed from the order of the court to the Supreme Court.”</p> <p>On the 20th of May 1868, the Supreme Court affirmed the order of the Orphans’ Court, and dismissed the appeal.</p> <p>Margaret and Elizabeth Glancey again, September 1st 1868, petitioned the court, setting out that they could not live agreeably with Robinson and wife, and prayed the court to issue to Line an alias order to sell. Line also, at the same time, presented a petition setting forth the affirmance of the order by the Supreme Court, and prayed for an alias order of sale. The court on the same day made the order as prayed for, sale to be held on the 9th of October. From this order an appeal was taken to the Supreme Court by Robinson and wife. On the 20th of October, Line returned that “ he declined executing said order; that he finds he cannot do it without incurring the ill-will of Lewis Robinson and his wife, and he has been induced to refuse executing said order. He therefore declines having anything further to do with it.” On the same day, on the petition of Margaret and Elizabeth Glancey and Elizabeth Peffer, the court issued an order to Joseph C. Thompson, who was sheriff, as trustee under the 44th section of the Act of February 24th 1834 (Pamph. L. 81, Purd. 298, pl. 154), to sell the real estate.</p> <p>The terms of sale were: “A sum sufficient to pay costs and expenses, to be paid to the sheriff on the confirmation of sale; a sum sufficient to make one-half the purchase-money, with the amount paid sheriff on the 1st of April 1869, when the deed will be delivered and possession given; and the balance with interest from 1st of April 1869, payable on the 1st of April 1870, the payment to be secured by recognisance with approved security,” &c. The trustee to give security in the sum of $500. To this order also an appeal was taken to the Supreme Court by Robinson and wife.</p> <p>Thompson made return on the 16th of December 1868, that in pursuance of the order he had, on the 28th of November 1868, sold the property by public vendue to Margaret and Esther Glancey for $2495. On the 11th of January 1869, the sale was confirmed, upon the purchasers entering into recognisance to pay the other heirs their distributive shares according to the terms of sale theretofore fixed by the court.</p> <p>From this decree of confirmation, Robinson and wife appealed to the Supreme Court, where they assigned the following errors :—</p> <p>1. The court erred in awarding the order of sale to the administrator, and not requiring him to give proper notice of the time, place and terms of sale, and in directing the money to be paid to the heirs instead of the administrator for account and distribution as now required by statute.</p> <p>2. The court erred in not giving notice to Robinson and wife that the administrator refused to execute an order of sale and in awarding without such notice an order to the sheriff.</p> <p>3. The court erred in allowing the order of sale to sheriff after an appeal had been taken to the Supreme Court, and in fixing terms of sale improperly as follows:—</p> <p>1. The order of sale is erroneous in not directing the purchase-money to be paid th'e sheriff for an account and distribution.</p> <p>2. In fixing his bail at five hundred dollars in a property-valued and appraised in the proceedings at twenty-six hundred dollars.</p> <p>4. The court erred in confirming the sale made by the sheriff after an appeal had been taken to the Supreme Court.</p>

<p>1. Three plaintiffs filed a joint bill against a railroad company, averring injury to their business in charging improper tolls, making discriminations against them, &e. A community of interest in the plaintiffs was necessary to sustain the bill.</p> <p>2. One plaintiff was not specially injured in the matters charged; he had no status in court, and could not complain that the company had exceeded their franchises.</p> <p>3. Unless it appears on the face of a bill in what there is a private injury, it is demurrable as to that.</p> <p>4. A charge against a corporation for violating a public franchise being an injury common to the whole- public, is a matter for the public, and not for an individual to redress.</p> <p>5. The rule is, that where the injury is not greater to the plaintiff than to the inhabitants generally, the remedy is with the public.</p> <p>6. In a bill the various matters charged are like counts in a declaration, which, if all good, although variant in their contents, but not misjoinders, a judgment on either will be sustained.</p> <p>7. If the plaintiff sustain any charge in his bill which, if charged singly, would be followed by injunction, the bill should not be dismissed for mispleading.</p> <p>8. Several causes of injunction, where there is privity between the plaintiffs and defendants, and where they relate to the same general matter or spring from a common cause, may be joined.</p> <p>9. Charging two sources of right by a plaintiff renders a bill multifarious.</p> <p>10. A bill is not multifarious in joining two causes of complaint growing out of the same transaction, where all the defendants are interested in the same right, or the relief sought is of the same general nature.</p> <p>11. A bill is multifarious by the joinder of distinct, independent and separate causes of complaint requiring different defences and different decrees.</p> <p>12. A railroad company had authority to place ears, &c., on their road, to permit individuals to place cars thereon, and to charge ‘‘ on all goods, &c., transported on their road not exceeding four cents per ton per mile for toll and three cents for transportation.” Held, that these were two subjects of charge, one for the use of the road, the other for power.</p> <p>13. A railroad company may allow to its agents the privilege to buy and sell produce, &c., at the company’s warehouses.</p> <p>14. The warehouses of a railroad company are not for the public accommodation, but are necessary appendages to their business arrangements.</p> <p>15. No individual has rights in railroad warehouses except as conceded to him by the company.</p> <p>16. On a railroad up to its capacity to accommodate, equality must exist at the same rates of transportation, and as far as possible in accommodation.</p> <p>17. A railroad company cannot discrimimice in favor of itself or any of its employees as against other transporters. j</p> <p>18. A rule in injunction cases is, that an injunction will not ordinarily be ' granted under a prayer for general relief, but must be expressly prayed. ■</p> <p>19., The court will not decree more than a plaintiff claims in his bill, whatever he may prove.</p> <p>20. A plaintiff cannot, under a general prayer, ask for a decree different from that prayed for.</p>

<p>1. L. leased coal-mines to P., to have “ the right to mine, carry away and dispose of” coal. P. having mined coal, which remained in the mine just as it fell from the breast, made an assignment for creditors. Held, that the coal was personal property and passed to the assignee, and trover would lie for it against L. preventing its removal, provided its removal did not essentially injure the mine.</p> <p>2. If the coal could not be removed without material injury to L., P.’s right of property was not complete and final, because of his obligation to mine in the most approved method, and leave the mines in good order.</p> <p>3. As to damages, the court charged, “ You allow, not for the expense of mining, but for the coal as mined lying in the run. This includes the value of the coal itself, what might be called ‘ coal-leave;’ for, although not paid for, it belongs to the tenant.” Held, under the circumstances, not to be error.</p> <p>4. Rent due by P. could not be deducted from damages in trover.</p> <p>5. The rent was wholly disconnected from the taking of the coal, and its deduction would be set off, which cannot be made in trover.</p> <p>6. Herdic v. Young, 5 P. F. Smith, explained.</p> <p>7. A railroad was laid in the mines for moving coal to the breaker; P.’s assignee had the right to use it to remove the coal.</p>

<p>May 17th 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.</p> <p>Error to the Court of Common Pleas of Dauphin county: No. 90, to May Term 1869.</p> <p>On the 11th of July 1867 the accounting officers of the Commonwealth settled an account' against The Penn Gas Coal Company, as follows:</p> <p>“ For tax on net earnings or income, per Act of April 30th 1864, . for years ending November 1st 1865 and 1866, as per report herewith filed:</p> <p>1865. Net earnings or income - - - - $173,079.72</p> <p>1866. do. do. 68,757.54</p> <p>241,837.26</p> <p>Tax three per cent, due Commonwealth, - - 7,255.11”</p> <p>The company appealed from the settlement, because the amount, $241,837.26, on which the tax is charged, exceeds the net income and includes a portion of the company’s capital.</p> <p>On the trial, November 23d 1868, the Commonwealth gave in evidence the settlement, and the report of the company on which the settlement is based, showing the net earnings or income to be $241,837.26, and claiming a deduction of $54,000 for “waste of capital for coal taken outthree per cent, tax being assessed on total amount returned.</p> <p>Pearson, P. J., directed a verdict for the Commonwealth for $8374.56, the amount of the tax and interest, subject to two points reserved; the first being: If the court shall be of the opiniomthat under the return made, the company is not taxable on its stock exhausted, then judgment to be rendered in favor of the Commonwealth for $6564.89.</p> <p>The court rendered judgment on the reserved point for the Commonwealth for $6564.89.</p> <p>The Commonwealth took a writ of error, and assigned the judgment for error.</p>

<p>1. G. sold lumber to M., who made an immediate contract with G. to run it to market, and it was left with G. until he started to run it; G. on the way sold it to B. Held, that B. could hold it.</p> <p>2. If a vendee allows the vendor to remain in possession, or after delivery, immediately give him the possession, and the vendor sells the goods to a bon& fide purchaser for value without notice, the purchaser can hold the goods.</p> <p>3. Subsequent purchasers of personalty are not within statutes 13 and 27 Elizabeth.</p> <p>4. A vendee permitting a vendor to remain in possession (the ordinary mark of ownership) enables the vendor to commit a fraud on innocent third persons, and the vendee must bear the loss.</p> <p>5. In such case caveat emptor does not apply.</p> <p>6. The rule of law that the retention of personal property by the vendor is conclusive evidence of a colorable sale, is a rule of public policy for prevention of fraud and is to be inflexibly maintained.</p> <p>7. Where goods are intrusted to servants and bailees, the owner does not lose his property by a breach of trust in the mandatory.</p> <p>8. The vendee having acquired possession under his purchase, must have enjoyed it so long and in such manner as to show that the delivery to him was not merely formal, before he can safely transfer it to the vendor.</p> <p>9. A subsequent sale of goods by the vendee, and a marking of them as his by the second vendee would make no difference, if the goods still remain in the possession of the first vendor.</p> <p>10. A bailee employed to run timber to market, wrongfully sold it on the way. Reid, that he had no lien for his hire and expenses.</p> <p>11. A bailee may transfer his claim, and with it his lien and the possession of the bailment as security; this is an appointment of the assignee to keep possession as his servant.</p> <p>12. If a party desires ah explicit answer to any point, it should be brought to the view of the court directly.</p>

May 17th, 18th and 19th 1869. Before Thompson, 0. J., Read, Ahnew, S^auswood and Williams, JJ. Appeals from the decree of the Court of Common Pleas of Lebanon county: In Equity: No. 37,38,71, 72,109, to May Term 1869. The case commenced by a bill filed June 7th 1857 by Robert W. Coleman against William Coleman, Robert Coleman, G. Dawson Coleman, Edward B. Grubb and Clement B. Grubb for an account of ore taken by the parties from the Cornwall ore-banks in Lebanon county.

<p>1. Calls in a deed, or lines on the ground, will control both courses and distances, if there he no fraud or mistake in running the lines.</p> <p>2. It. sold land to S., describing it by courses and distances in the deed, the contents stated to be 32 acres, the amount which would be enclosed,by the courses and distances. B., a subsequent purchaser, finding marks on the ground and adjoiners as described in the deed, embracing about 30 acres more, claimed to hold them. Meld, that the question whether the surveyor had not run the lines by fraud or mistake was properly submitted to the jury.</p> <p>3. The deed calling for but 32 acres, B. could not allege that he was an innocent purchaser without notice.</p>

<p>May 19th 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.</p> <p>Writs of error to the Court of Common Pleas of Dauphin county: Nos. 60, 61, 62, 66, 67, 68.</p> <p>These cases in the court below were appeals from settlements by the accounting officers of the Commonwealth charging the several defendants with tonnage tax under the Act of April 30th 1864, § 1, Pamph. L. 218, Purd. 1377, pl. 2. The section is as follows:—</p> <p>“ In addition to the taxes now imposed by law, hereafter every railroad, steamboat, canal, slack-water navigation or other transportation company doing business within this Commonwealth, shall * * * make quarterly returns * * * of the number of tons of freight traffic carried or moved by said company during the three months previous, * * * and shall pay the following taxes, to wit: 1st class, products of mines, two cents per ton; 2d, product of forests, animal or vegetable food and all other agricultural products, three cents; 3d, upon merchandise, manufactures and all other articles, five cents.”</p> <p>The section further provides that where the freight is carried over different continuous lines the tax shall be paid by each company in proportion to the distance carried as may be adjusted among themselves, the state treasurer being authorized to collect the whole from any one of the companies.</p> <p>On the 11th of July 1866 the- following account was settled against the Erie Railway Company:—</p> <p>“ Dr. For tax on tonnage per Act of August 25th 1864, for the quarter ending May 31st, 1866, as per report herewith filed: —</p> <p>Second class, 5274 tons, tax 3 c. per ton . . $158.22</p> <p>Third do 9431 do 5 do . 471.55</p> <p>Due Commonwealth ...... $629.77</p> <p>“ This account does not include the tonnage passing through the state of Pennsylvania to or from other states, but includes the tonnage delivered in Pennsylvania from other states or taken from Pennsylvania to other states.”</p> <p>On the trial of the appeal it was conceded that of the $629.77 charged, all but $5.15 was tax on freight either delivered in Pennsylvania from another state, or taken up in Pennsylvania and carried to another state.</p> <p>The jury, under direction of the court, rendered a verdict for Commonwealth for $5.15.</p> <p>- Another settlement was made against'the same company, on the same day, on similar subjects. The amount of tax assessed was $7380.93.</p> <p>It was conceded on the trial of the appeal that in said settlement, the defendants were charged with an aggregate tax of $6334.00 on 123,000 tons of freight passing over the road of the company, and which was not both taken up and delivered at points within the state of Pennsylvania.</p> <p>Pearson, P. J., instructed the jury to find for the defendants.</p> <p>On the same day a settlement was made against The Lackawanna and Bloomsburg Railroad Company, on similar subjects, the tax assessed was $5069.38.</p> <p>It was proved on trial of the appeal that of the sum charged, $2648.25 was a tax on 127,632 tons of freight manifested and transported to or from points not wdthin the state of Pennsylvania, over a continuous chain of roads, of which the Lackawanna and Bloomsburg Railroad Company is a part, which freight in transhipment underwent no change of cars.</p> <p>Judge Pearson directed the jury to find for the plaintiff $2580.11.</p> <p>On the 18th of October 1866 a settlement was made against The Monongahela Navigation Company, on similar subjects; the tax assessed was $12,553.53.</p> <p>On the trial of the appeal it was conceded by the Commonwealth, that the sum of $12,553.53, with which the company is charged in the settlement, was the aggregate tax on 627,676 tons of freight carried over the defendant’s lines from 'a point within the state of Pennsylvania to a point without the state.</p> <p>Judge Pearson directed the jury to find for the defendants.</p> <p>On the 18th of October 1866 a settlement was made against The Cleveland and Pittsburg Railroad Company, on similar subjects : the tax assessed was $1951.93.</p> <p>It was conceded on the trial of the appeal that of the amount charged against the company, $1685.46 was a tax on 47,820 tons of freight carried from some point within the state of Pennsylvania to some point without her borders.</p> <p>Judge Pearson directed the jury to find for the Commonwealth $281.11.</p> <p>On the 25th of October 1866 a settlement was made against The Philadelphia and Reading Company, on similar subjects : the tax assessed was $84,881.41.</p> <p>It was proved on the trial of the appeal that in said settlement, the defendants were charged with an aggregate tax of $46,520, on 2,326,002 tons of freight originating in Pennsylvania, and carried by the defendants to the terminus of its road in Pennsylvania, and thence transhipped by a continuous line of transportation, by other companies, out of the state. It was shown on the trial that $38,361.41 had been paid by the defendants on account, leaving due the $46,520 above mentioned.</p> <p>Pearson, P. J., instructed the jury to find a verdict for the defendants.</p> <p>The specifications filed with the appeal were substantially the. same in all the cases, viz.:</p> <p>“ That the Act of August 25th 1864 is unconstitutional and void, to the extent that it imposes a tax upon freight other than that both received and delivered within the state of Pennsylvania, because the same conflicts with paragraph 4, section 8, article 1, of the Constitution of the United States, giving to Congress the power to regulate commerce with foreign nations and among the several states; and with paragraph 2, section 10, of article 1, of the Constitution of the United States, which provides that no state shall, without" the consent of Congress, lay any impost or duties on imports or exports, except what may be absolutely necessary for executing its inspection-laws.”</p> <p>The charge of the court was delivered in extenso, only in the last case; against the Philadelphia and Reading Railroad Company. In the other cases, the judge charged that they came under the rulings in that case, in which, amongst other things, he said, in relation to the Act of August 25th 1864 :</p> <p>“ Where freight is loaded on the cars of the company and brought to Richmond, or any other point, for sale, it is subject to the tax, although it may be sold to be shipped abroad. When the article is sold for foreign shipment, before being loaded on the defendant’s cars, is then placed thereon and carried directly to the point of transhipment, loaded on vessels and actually sent into other states or foreign countries, the railroad company is not bound to pay any tax on such tonnage. To apply the Act of Assembly to such tonnage, would be a burden on the commerce of the state to which it is to be carried, and thus far be a regulation of commerce between the states in violation of the federal compact, and the statute cannot be so construed without rendering it unconstitutional. You will, therefore, render your verdict in favor of the defendant for all taxes charged on the tonnage carried on the road, originally destined for other states or foreign countries and so sent, and in favor of the Commonwealth for all other taxes thereon, if not already paid.”</p> <p>The Commonwealth took a writ of error in each of the cases: the error upon which the eases' were considered was the instruction that “ the Act of August 25th 1864 is unconstitutional, in so far as it imposes a tax on tonnage other than that both received and delivered within Pennsylvania.”</p> <p>The cases were argued for the Commonwealth by L. Wain Smith, Deputy Attorney-General, and B. 11. Brewster, Attorney-General.</p>

<p>1. School directors, under a law authorizing them, resolved to raise money for the township to pay bounties, borrowed money for that purpose of H., gave a bond in their individual names as school directors, and all of them executed it with their seals.- Held, that the township was liable, although the bond was not executed by the president and secretary as such. Per Pearson, P. J.</p> <p>2. The signers of the bond were not individually liable. Id.</p> <p>3. Where an obligation on its face appears to have been executed for a municipality by its officers, although by them individually, they act as representatives, and are not individually liable. Id.</p> <p>4. In this case the directors were authorized to act for the township, and it is liable. Id.</p> <p>5. The money loaned, being for a lawful purpose, could' have been recovered independently of the bond.</p> <p>6. The suit was against the school district. Held, that the record mighi be amended by substituting the township. Id.</p>

<p>1. The injured party in the marriage relation must seek redress in the forum of the defendant, unless where the defendant has removed from what was before the common domicil of both.</p> <p>2. No one who has not shut himself out by flight from justice can be condemned without hearing or an opportunity of being heard.</p> <p>3. If a court has not jurisdiction, neither notice nor process duly served can give vitality to its judgments.</p> <p>4. Such judgment is void, at least as to any extra-territorial effect.</p> <p>5. A husband went from the domicil of himself and wife into another state, and obtained a divorce; after the decree land vested in him. Held, in an action of dower, the fact of the vesting after the decree did not affect the wife’s right.</p> <p>6. However indisputable proof depending on oral testimony may be, it is the province of the jury to decide under instructions from the court.</p> <p>7. A voluntary separation of the wife from the husband, as well as adultery, will bar her of dower.</p> <p>8. When one by his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his previous position, he is estopped.</p> <p>9. A husband living in another state was divorced whilst his wife lived in the original domicil; afterwards she lived with another man as her husband. The husband conveyed land; afterwards the wife declared she was married to the second man. Held, in a suit for dower against the purchaser, that she was not estopped from claiming as the widow of the first husband.</p> <p>10. In an action of dower, it is no defence that the defendant is a bon& fide purchaser for value without notice.</p> <p>11. Colvin v. Reed, 5 P. F. Smith 375, approved.</p>

<p>1. Act of October 13th 1840, $ 1 (Review of Accounts), construed.</p> <p>2. Private settlements with a guardian soon after the ward comes of age are watched with great jealousy.</p> <p>3. The same jealousy exists when there has been a merely formal settlement in court.</p> <p>4. Liberality ought to be exercised in allowing a review in such cases.</p> <p>5. The object of the Act of 1840 was to make a bill of review a matter of right, and at the same time to prescribe a limit of time to the exercise of the power.</p> <p>6. It was not the design of the act that when an accountant had not charged himself with money for which he was liable to account, the payment of the balance should preclude a re-examination.</p> <p>7. The purpose of the act was that the decree sought to be reviewed should, not be disturbed so as to do injustice to the accountant.</p> <p>8. Whenever the object is to surcharge the accountant with money received and not accounted for and not to disturb an appropriation already decreed and payment made, the proviso in the Act of 1840 is not the way.</p> <p>9. An heir on accepting land in partition entered into recognisance for payment to other heirs: upon his death his personal estate is' the primary fund for payment.</p> <p>10. His heirs are entitled, as against his administrator, to have the recognisance discharged from his personal estate.</p>

<p>May 24th 1869. Before Thompson, C. J.,- Bead, A&new, Sharswood and Williams, JJ.</p> <p>Appeal from the decree of the Orphans’ Court of Dauphin bounty: No. 40, to May Term 1869: In Andrew J. Jones’s Estate.</p> <p>On the 17th of June 1864 Andrew J. Jones, of Harrisburg, Pennsylvania, and Sarah A. Buckman, of Burlington, New Jersey, entered into a contract which recited that a márriage was about to be solemnized between them; and by which “ the said party of the first part hereby obligates himself to settle upon and secure to the said party of the second part (should the said marriage be solemnized between them as intended), by will or otherwise, an annuity of $1500 per annum, to be paid to her the said party of the second part, in semi-annual payments out of his estate, in case of her surviving him, from the time of his death until the death or marriage of' the said party of the second part, whichever shall first happen thereafter, and no longer; and if the said party of the second part survive the said party of the first part, and cease to be his widow by marrying again, then in that case the said party of the second part shall receive from the time of such second marriage, during her natural life, the sum of $500 annually, and no more.”</p> <p>She, in consideration of the premises, released all claim on her intended husband’s estate. The contract was not stamped. The marriage was consummated shortly afterwards, and on the 13th of January 1867 Jones died intestate and insolvent, leaving his wife surviving him. An auditor was appointed to make distribution of his estate amongst his creditors.</p> <p>Before the auditor Mrs. Jones, as a creditor, presented a claim for $20,000, based upon the marriage contract. The question of the validity of the instrument for want of a stamp was not raised before the auditor.</p> <p>The auditor reported that at the time of making the contract Jones was insolvent; and * * “ as against creditors, the auditor is of the opinion that the agreement is of no consequence, and that she can recover nothing under the agreement, or for the non-performance of it, until all debts are fully paid. - This claim is therefore disallowed.”</p> <p>Mrs. Jones excepted to the report of the auditor. After argument, the opinion of the Orphans’ Court was delivered by Pearson, P. J., -who said:—</p> <p>“ It is said, however, that the parties contemplated that the intended settlement might be secured to the wife by will, and that if Jones had made his will, giving his wife $1500 a year, the contract would have been fully executed on his part, the wife could have demanded no more, and yet the debts must all be paid before the wife could recover anything under the bequest. That is not our construction of this contract. Mr. Jones. ‘ obligates himself to settle upon and secure to the said party of the second part, by will or otherwise, an annuity of $1500 per annum, to be paid to her in semi-annual payments out of' his estate in case of her surviving him, from the time of his death until the death or marriage of the said wife,’ &e. He is obligated not only to settle this sum upon her but to secure it to her. If his will does not render it secure, she may require it to be done ‘ otherwise,’ and refuse to take under his will. It is a covenant on his part to settle that sum upon and secure it to her. It is a binding contract on. what the law looks upon as a consideration of the highest order. The claim stands equal under the marriage article with that of any other creditor. It may be said to endanger the rights of others, and to be contrary to moral honesty, to permit a man, by an antenuptial contract, to pass over a large portion of his estate to his intended wife, whereby he will have a future benefit and maintenance, and his creditors be defrauded of their just dues. If the creditors have liens they cannot be disturbed — if they had none he could sell the property. If they can show that the woman knew of his indebtedness, they may defeat the settlement. Failing to prove this she is considered a purchaser for value.</p> <p>“ We are therefore of the opinion that her claim is equal to that of any other creditor. But for how much? We have come to the conclusion that it can be for no more than was due on the article at the time of the distribution; the residue must be rejected for uncertainty.” * * *</p> <p>The court further decided that the contract was void for want of a stamp and could not be received in evidence; on this ground the report of the auditor was confirmed.</p> <p>Mrs. Jones appealed to the Supreme Court and assigned the confirmation of the report for error.</p>

<p>1. If a traveller in crossing a railroad is injured either by his own misfortune or fault, the company is not liable.</p> <p>2. Where a traveller is injured crossing a railroad on a public road, negligence is not to be presumed against the company.</p> <p>3. In such case each is in the lawful use of a highway; the traveller is bound to^approach the railroad cautiously and to' observe the approach of trains, and the company to give proper and timely warning of their coming.</p> <p>4. In an action by a husband for the death of his wife by negligence the court charged: “ That damages should be given as a pecuniary compensation, the jury measuring the plaintiff’s loss by a just estimate of the services and companionship of the wife, of which he was deprived by this accident; that is, of their value in a pecuniary sense — nothing is allowable for the suffering of the deceased, nor for the wounded feelings of the plaintiff. Of course, the j ury will examine the testimony to aid them in ascertaining the damages. But if damages are to be given at all, there is no reason why they should be nominal merely; they should be a just compensation for the value of the companionship and services lost to him by reason of this unfortunate collision.” Held not to be error.</p>

<p>May 24th and 25th 1869. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.</p> <p>Error to the Court of Common Pleas of York county: Of May Term 1869, No. 83.</p> <p>This was an amicable action between Ernest C. Grevemeyer, plaintiff, and The Southern Mutual Eire Insurance Company, defendants, entered to August Term 1868. On the 13th of August 1864 the defendant made an insurance to the amount of $3350 on a grist-mill and gearing belonging to the plaintiff, and situate in York county.</p> <p>On the 2d of April 1868 the plaintiff conveyed to'John Donahoe in fee the property on which the mill was located, including the mill, dwelling-house and other improvements. The purchaser paid $1200 of the purchase-money on the day of the conveyance, and at the same time gave the plaintiff a judgment bond for $4000, the balance of the purchase-money,on which judgment was on that day entered in the Court of Common Pleas of York county. Donahoe entered into possession of the property. The policy of insurance was not assigned to the purchaser ; the defendants had no notice of the sale of the property. On the 8th June 1868 the mill was destroyed by fire, the judgment in favor of the plaintiff against Donahoe being unpaid and still a lien on the property sold.</p> <p>The property since the burning of the mill is worth $2000. The plaintiff holding the policy gave notice to the company of the loss, and claimed the insurance from the company. These facts were submitted in a case stated for the opinion of the court, whether the plaintiff was entitled to recover against the defendants, and if so, how much ?</p> <p>The court entered judgment for the defendant, which on removal of the case to the Supreme Court was assigned for error.</p>

<p>July 1st. 1869, at Philadelphia. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.</p> <p>Quo Warranto. An information was filed in the Middle District, No. 80, to May Term 1869, by the Attorney-General, April 5th 1869, setting out that James Gamble had, since March 16th 1869, and still did exercise, the office, &c.,- of a judge of the Court of Common Pleas of Lycoming county. Upon the suggestion of the Attorney-General the writ in this ease was issued, to which the defendant pleaded, that by the Act of February 28th 1868 the county of Lycoming was erected into a separate judicial district, called the Twenty-ninth Judicial District; that by said act the qualified electors of the district were authorized to elect a president judge for said district, to serve for the term of ten years from the first Monday of December then next; that the defendant was, on the second Tuesday in October 1868, elected president judge of said district, to serve for the term above mentioned, was commissioned by the governor of the Commonwealth, took the oath of office and has since continued to exercise it by virtue of the election and commission.</p> <p>To this plea the Commonwealth replied, that an Act of Assembly, approved March 16th 1869, repealed the Act of February 28th 1868, and attached the county of Lycoming to the Fourth Judicial District and it now forms part of it, — and that the respondent therefore had no right to exercise the office of judge, &c.</p> <p>The defendant demurred to the replication, and the cause was heard on the demurrer.</p>

<p>1. In determining accountability for the consequences of a wrongful act, the immediate, and not the remote, cause is to be considered.</p> <p>2. An engine on a railroad negligently set fire to a house, the fire from the house communicated to another at some distance from it, which was consumed with all its contents. Held, that the railroad company were not liable for damages for the last building and its contents.</p> <p>3. Every one has to take the risks of the vicissitudes of organized society.</p> <p>4. The person committing the first act of negligence is not liable for all Its consequences. '</p>

<p>1. As a general rule in joint actions, taking a final judgment by the plaintiff himself against one defendant bars further proceedings in the same suit against the other.</p> <p>2. When judgment is rendered by default against one and the prothonotary liquidates the sum without waiting for an assessment against the other, this being the act of the officer is amendable in the court below by striking out the liquidation or by treating it in the Supreme Court as amended.</p> <p>3. Two judgments in the same case will be treated as one on a scire facias or execution under the Act of August 21st 1842 (Judgments).</p> <p>4. Every presumption is to be made in favor of an award, unless flagrant error appears in the record,</p> <p>5. The service of the rule containing the names of the arbitrators must be made on the party himself if he reside in the county.</p>

October 18tb 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ. Error to the Court of Common Pleas of Qrawford county: No. 44, to October and November Term 1868.

October 18tb 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ. Error to the Court of Common Pleas of Venango county: Of October and November Term 1869, No. 1. This was an action of ejectment for a piece of land in Rockland township, containing about one acre, brought May 15th 1867 by William Lewis, Sterling Bonsall and Elihu Chadwick against The Venango Central and Duck Creek Oil Company, Charles L. Stock and others.

<p>1. Articles of partnership created Winn “the agent and to have the general supervision of the business” of the partnership, but did not limit his authority as partner. He had the same general authority as partner as if he had not beén constituted special agent.</p> <p>2. Restrictions in articles of partnership on the power of a partner would not affect those to whom they were unknown.</p> <p>3. A partner may enter intd contracts in the ordinary business of the firm, sell or pledge goods, draw, negotiate, endorse or accept bills or other negotiable securities, and do any other acts incident or appropriate to such trade.</p> <p>4. When a partnership is for a particular purpose, it is in itself a grant to the acting members of the company to transact its business in the usual way.</p> <p>5. Stipulations in articles of partnership are to regulate the rights and conduct of the partners as among themselves, the trading world cannot know them, but must trust to the general powers of all partnerships.</p> <p>6. In contracts as to negotiable paper, there is no distinction between a general and a special partnership, and the partnership is liable for money borrowed by one partner on the credit of the firm within the scope of its business.</p> <p>7. The principle that one partner may bind the firm applies as well to partnerships for manufacturing and mechanical purposes as to those for commerce.</p> <p>8. Where a partner was specially constituted the general agent of the firm, and was in the habit of borrowing money with the knowledge of his co-partners and without objection, the firm would be liable under the agency for money borrowed by him.</p> <p>9. A partner constituted by articles “the agent and to have the general supervision” of the business of the firm, is not therefore authorized to bind the firm by a note under seal.</p> <p>10. A partner cannot bind the firm by deed; a specialty executed by him in the name of the firm binds himself only.</p> <p>11. Merger takes place only when the debt is one and the parties are identical.</p> <p>12. A partner gave a sealed note in the name of the firm for a precedent indebtedness. Held, that the debt was not merged in the note.</p> <p>13. The acceptance of a specialty from one partner is a satisfaction of a partnership indebtedness on simple contract.</p> <p>14. A sealed note in the name of a firm, made by one partner, is not a satisfaction of the firm debt unless accepted as the individual note of the partner.</p> <p>15. A note under seal by one partner for the firm is evidence of the amount due by the firm on settlement.</p> <p>16. A judgment will not be reversed for an error which does the plaintiff in error no harm.</p> <p>17. In a suit against a firm it is error to join the administrators of a deceased partner with the survivors.</p> <p>18. The joinder of the administrators of a deceased partner with the survivors may be amended under the Act of May 4th 1852 (Amendments).</p> <p>19. When the objection to misjoinder is made for the first time in the Supreme Court, the amendment will be permitted there as if made below.</p>

<p>Hobson furnished to tenants, in Venango county, materials, machinery, &e., for -improvements put up by them, on their leasehold. Held, that he was entitled to lien as material-man under the Acts of February 17th 1858 and April 11th 1866 (Mechanics’ Lien).</p>

<p>October 19th 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.</p> <p>Error to the Court of Common Pleas of Uric county: Of October and November Term 1869, No. 6.</p> <p>This was a feigned issue ordered August 30th 1867, between Clark and Metcalf, Warren D. Kellogg and William J. Sterrett, plaintiffs, and John W. Douglass, defendant. The circumstances under which the issue was ordered are as follows: On the 30th of August 1865, Julius Degmier executed a bond with warrant of attorney to John W. Douglass in the sum of $15,000, the condition being “that whereas the said Julius Degmier is indebted to the said John W. Douglass for money received by the said Degmier, at various times, whilst acting as clerk and deputy collector of internal revenue, in the office of collector of internal revenue, for the 19th Collection and Congressional District of Pennsylvania, and appropriated by said Degmier to his own use, which moneys have to be accounted for by the said Douglass, as collector for the said district. And whereas, the amount so taken, is as yet uncertain and undetermined; now, therefore, if the said Degmier shall and do well and truly pay, or cause to be paid, to the said Douglass, the amount of such defalcation or appropriation, when ascertained, without fraud or further delay, then this obligation to he void, or else to he and remain in full force and virtue.' And, it is stipulated by the said Degmier, as a further condition of this bond, that the said Douglass, his heirs, executors, administrators or assigns, may liquidate the amount due on this bond, at the apparent defalcation in said office, without scire facias or notice to the said Degmier.”</p> <p>On the same day Julius Degmier and Charlotte Degmier his wife executed and delivered to Douglass a mortgage on the real estate of Mrs. Degmier to secure the payment of the bond. In February Term 1867 Douglass issued a scire facias on the mortgage, and on the 1st of June 1867 Degmier and his wife executed under their seals a paper entitled of the scire facias, by which they “ agreed to liquidate the amount due on the mortgage at $16,578,” and confessed judgment in favor of Douglass for that amount. Under a levari facias, to August Term 1867, Mrs. Degmier’s property was sold for $11,675. On the 30th of August 1867 the plaintiffs in this issue presented a petition setting forth that, on the 30th of August 1865, Degmier was indebted to Douglass “$3316.72 and no more;” and further setting out the bond of Degmier, the mortgage of himself and wife, the judgment on the mortgage, and the sale under the levari for $11,675, “ which is all claimed by Douglass to apply upon his said debt;” setting out further that they were lien-creditors of Degmier and wife by junior liens, and charging that for the amount beyond $3316.72, the bond and mortgage are fraudulent and void, and that therefore “ Douglass has postponed his judgment until the judgments of the petitioners are paid;” they prayed for “an issue to try how much of the money made by the sale before mentioned and now in the sheriff’s hands, if any, shall or can legally be applied to the payment of the said judgment of the said John W. Douglass.”</p> <p>The issue was accordingly ordered as before stated, and a declaration in assumpsit on the common counts filed. On the trial, before Johnson, P. J., the plaintiff proposed to prove that the mortgage was not executed by Mrs. Degmier according to law; that the judgment was given to secure but little above $3000 ; that Degmier at the time of the liquidation was under arrest for a criminal offence, and he and Douglass colluded to liquidate the judgment at $12,000 more than was due,.in consideration of Douglass releasing him from the prosecution. The offers were objected to by the defendant, the objections were sustained by the court to all the evidence not tending to show collusion between Degmier and Douglass; and bills of exception were sealed.</p> <p>The plaintiffs then gave in evidence the arrest of Degmier in a prosecution by the United States on the complaint of Douglass, his committal to jail on the 28th of June 1867, and, same day, his release on bail.</p> <p>Mrs. Degmier testified that Mr. Curtis, the counsel of Douglass, called on her about liquidating the judgment, before it was done, on the same day Douglass informed her in answer to her inquiry that Mr. Curtis was preparing a paper to get her husband released; she signed the paper, liquidating the judgment; it was not read, she did not know its contents, her husband was not at home; she did not know the amount claimed by Douglass; Curtis had told her a day or two before that her husband would have to go to the state prison; she signed voluntarily without constraint from her husband.</p> <p>Degmier testified that he owed Douglass $3316.72 on 30th of August 1865. There was evidence also of declarations by Douglass that the indebtedness of Degmier would not exceed $4000, but the precise sum would be ascertained by the settlement of the accounts at Washington. The defendant gave evidence by Mr. Curtis that the paper liquidating the judgment was read over and explained to Mr. and Mrs. Degmier, that he stated to them that Mr. Douglass claimed the whole amount of the mortgage, that nothing was said as to withdrawing the prosecution, with other facts tending to show that the paper had been executed voluntarily and understandingly. Defendant gave evidence also tending to show that the whole amount for which the judgment had been liquidated was due to him. One witness testified that on the 30th of January 1865 the deficit in the revenue accounts was $12,086.36, which continued to increase till August, when it was $13,392.71.</p> <p>The plaintiffs’ points were,—</p> <p>“ 1. The jury must be satisfied from the evidence that the whole of the amount of the mortgage from which the judgment in this case was liquidated was due and owing to the defendant; the whole of the evidence of the defendant, and the bond accompanying, show that it was not known or ascertained at the time it was given how much was due the defendant Douglass; but that the amount was to be ascertained.</p> <p>“ 2, The admission of Degmier that he owed Douglass between $3300 and $3400, would not enable the jury to infer that he owed him any more than he admitted.</p> <p>“ 3. Either the proof or admission by Degmier that he had taken or stolen $3000 or $4000 would not be such fact or evidence as would enable the jury to draw the conclusion that he had taken a larger sum, would not require him to account for all the money that might be missing, without proof that the greater amount had been taken at the same time by him under the same circumstances as other satisfactory proof of the fact. Under this issue, every fact going to show that more money is claimed by Douglass than is due him, and that the judgment is for more than was due or owing to him at the time by Degmier, is competent evidence.</p> <p>“ 4. The bond for which the mortgage was given to secure, points out the manner; the amount due is to be ascertained, and must be pursued in order to bind Mrs. Degmier, she being a married woman, and the judgment confessed by her is void.</p> <p>“ 6. Under the evidence in this case, and from the character of the bond and mortgage, it devolves upon the defendant to show affirmatively that Mrs. Degmier knew the contents of the mortgage when she signed it.</p> <p>“ 7. Mrs. Degmier being a married woman, a judgment confessed by her in a case like the present, is void, and nothing can be claimed by or under such judgment by the party procuring it or claiming under it.</p> <p>“ 8. If the jury believe from the evidence that the judgment in favor of John W. Douglass against Julius and Charlotte Degmier was liquidated for a larger sum than was actually due, with the knowledge of Julius Degmier of that fact, the judgment is fraudulent as to the creditors of Degmier, and in that case the plaintiffs are entitled to recover.</p> <p>“ 9. If the jury believe from the evidence that at the time of the liquidation of the judgment upon the scire facias on the mortgage, Degmier was under an arrest, charged with a felony upon the complaint of John W. Douglass, and if inducements were held out to Degmier that he should be discharged from arrest if they would sign the liquidation, and that liquidation was for a much larger, amount than was actually due, such judgment is fraudulent as to the other creditors of Degmier.”</p> <p>The court answered the points as follows:—</p> <p>“ 1. The first clause of the 1st point we answer in the negative. The balance of it is argument for the jury, and more appropriate to come from the counsel than the court.</p> <p>“ The 2d and 3d points (except the last clause of the 3d) are but reiterations of what the counsel has already said to the jury, and we answer them by saying, the jury may do as they please, and as their own judgment and conscience dictate. If they find the deficit of cash in the office $12,086.35, and that Degmier admitted he purloined $3316 of it, that he had an equal opportunity to take the whole, and that no circumstance of suspicion rests on any one else, they may infer, if they please, that he did take the balance missing, — but they are not bound to. The last clause of the 3d point is correct, provided the jury find the fraudulent purpose of the parties, as explained in our general charge, to have existed, so as to admit the right of the plaintiffs to impeach the judgment in the collateral way.</p> <p>£‘ 4. In answer to this we say, that liquidation and confession of judgment is the act of the defendants therein, and no one but themselves has a right to call it in question, except for collusion and fraud, and for all the purposes of this suit the judgment is not void as to Mrs. Degmier.</p> <p>“ 6 and 7. Are answered by saying that the questions therein suggested are not germain to this case, and require no answer.</p> <p>“ 8. We say, in answer to this point, that its premises are not sufficient to warrant the conclusion drawn. The simple fact that Degmier _ knew that the judgment was for more money than he states, even if that fact was susceptible of proof, would not constitute such covin or collusion as would make it available collaterally by third persons.</p> <p>“ 9. This point is subject to the same remark, that the premises do not quite support the conclusion. Inducements held out by a stranger to Degmier of exemption from arrest, without the knowledge of the plaintiffs;. or the judgment being for too much, without any knowledge of that fact, or fraudulent intention on the part of th.e plaintiffs, would not authorize an attack upon it in this way by outsiders so long as the defendants were content to let it stand.”</p> <p>The court further instructed the jury; * * * ££ The evidence shows that the attitude of those parties towards each other when the judgment was confessed, and ever since, has been hostile and antagonistic. Collusion to cheat third persons, friendly to both, can hardly be predicated of such parties under such circumstances. [But I will give a more liberal definition to the term collusion. It is this: If these parties, Douglass and Degmier, co-operated in the consummation of an act fraudulent in itself, and intended for a fraudulent purpose by each, although having different purposes in view — if the effect of that act is to defraud the creditors of Degmier, then it may be treated as collusive, and impeached by Degmier’s creditors. To illustrate. If you believe Douglass knew Degmier did not owe him, or had embezzled the amount for which he demanded judgment, but for the purpose of forcing Degmier to pay him more money than he had taken or owed him, had extorted from him and his wife the confession and liquidation complained of, and if at the same time you believe Degmier and wife confessed the judgment for more than they knew Degmier owed Douglass, or had embezzled, with the corrupt intention of encumbering their property in order to hinder, or delay and defraud his other creditors, then I say you may enter upon the inquiry as to how much, according to the evidence, was really due to Douglass, or rather how much money belonging to the collector’s office he had embezzled and misapplied.] The plaintiffs, not Degmier, have assailed the .judgment. They have the laboring oar. The parties of record to the judgment.are acquiescing in it. It is not enough that the consideration was inadequate. The parties only can take advantage of that fact, if it be so. The plaintiffs, as the creditors of Degmier, can only attack because collusive and fraudulent. They cannot take advantage of any mere irregularity or inadequacy of consideration. They must show fraud and collusion to perpetrate it.” * *</p> <p>“ Douglass having an undisturbed judgment for $16,578, and its interest, may rest contented on the protection the law throws around it. And the assailing party must show affirmatively that it „was in part or in whole without consideration, and that it was confessed, or is kept on foot falsely and fraudulently by the parties.” * *</p> <p>“If you find from the evidence that there was no more of a deficit in Degmier’s proper account on settlement with the collector’s office, in which he was a subordinate officer, than the $3816.72, which he admits having abstracted, then your verdict should be for the plaintiffs. If the evidence fails to satisfy you of this, and either satisfies you that his defalcation was even more; or that there existed no fraud or collusion in liquidating and leaving the judgment as it is, then your verdict should be for the defendant. [If you detect fraud enough about it to open the door and let you into an investigation of its merit's, and you discover that Douglass’s claim js good for part of the judgment and money over the $3316; or that he is honestly entitled to more than this much of the surplus fund in court, but not all, then you should find from the evidence how much more he ought to have to cover all Degmier’s deficits, and name it in your verdict.”]</p> <p>The verdict was for the defendant. The plaintiffs removed.the case to the Supreme Court, and there assigned for error: — the rejection of their offers of evidence; the answers to their points; and the parts of the charge included in brackets.</p>

<p>1. Materials were furnished for the erection, &c., of improvements, &e., on premises in Venango county, the occupier having at the time no written lease; he afterwards obtained such lease and a claim was filed for the materials. Held, that no lien attached under the Act of April 8th 1868 (Mechanics’ Liens in Venango County).</p> <p>2. Esterley’s Appeal,' 4 P. Í. Smith 192, explained.</p> <p>3. The Act of 1868 is a remedial statute, and should have a liberal interpretation in advancement of the remedy contemplated.</p> <p>4. Quoties in verbis, nulla est ambiguitas, ibi nulla expositio contra verba fienda est, is a cardinal canon of interpretation.</p> <p>5. The words, the context and the subject-matter are to be considered equally with the effects and consequences or the reason and spirit, if not before them.</p>

<p>October 20th 1869. Before Thompson, C. J., Read, Agnew, Shauswood and Williams, JJ.</p> <p>Error to the Court of Common Pleas of Olarion county: No. 191, to October and November Term 1869.</p> <p>James T. Burns was treasurer of the county of Clarion for the year 1861. The Act of April 3d 1851, Pamph. L. 317, relating to the collection of taxes in Yenango county, is extended by the Act of May 4th '1852, Pamph. L. 568, to Clarion county. By the 2d section of the first act it is made the duty of the county treasurer to give thirty days’ notice of a time previous to the 1st day of August in each year when he would attend at places designated in the notice to receive the taxes of the respective boroughs and townships. By the 3d and 4th sections of the act it is provided that if any taxes remain unpaid for thirty days after the 1st of August, the treasurer shall issue his warrant with- a schedule of unpaid taxes, and upon his delivering the same to the constable of any township, he shall charge the constable with the amount, from which the constable and his sureties shall be discharged only on paying such amount after deducting exonerations, &c. By the 5th section, the Court of Quarter Sessions before appointing constables shall take from them a bond to the Commonwealth in such sum and with such sureties as the court shall approve, conditioned for the faithful discharge of their duties under the act, and for the payment to the county treasurer of the amount of taxes contained in any.warrant and schedule delivered to them, after deducting exonerations, &c. On the 6th of May 1861, W. W. McClelland was appointed constable of Porter township, and entered into bond in the sum of $500 with Elisha McClelland and Jarius Thompson as his sureties, the amount of the bond and the sureties having been approved by the court. The amount of the duplicate of Porter township delivered to Burns was $1889.99; having collected some part of it, he put a warrant and schedule of the balance into the hands of McClelland, the constable, on the 2d of September 1861. McClelland accounted to Burns by payments and exonerations for this balance except $651.69. On the settlement of Burns’s accounts by the auditors in January 1862, a balance of $9881.84 including the $651.69 of the Porter township duplicate was reported to be in his hands. He paid the whole amount to his successor in ofiice.</p> <p>On the 8th of April 1864 (Pamph. L. 323), this act was passed, viz.: “ That the auditors of Clarion' county are hereby authorized and required to open the accounts of James T. Burns, former treasurer of Clarion county, and with the approval of the county commissioners resettle and equitably readjust the same, allowing the same right of appeal to the court that is provided for by law in the settlement of treasurers’ accounts.”</p> <p>In pursuance of this act the auditors opened Burns’s account, and made the following report:—</p> <p>“And‘now, to wit, January 4th 1865. In pursuance with an Act of General Assembly, passed the 8th day of April, Anno Domini 1864, entitled ‘ An act for the relief of James T. Burns, Esq., former treasurer of Clarion county.’ We, the undersigned auditors of Clarion county, proceeded to open the accounts of the said Burns with the county of Clarion for the years 1860 and 1861, and having duly considered and heard Mr. Burns’s statement, have concluded not to make any alterations in said account, and hereby leave the report the same as made by former auditors.”</p> <p>The county commissioners on the same day approved the report; and Burns appealed from the report on the 11th of February 1865. On the appeal the court ordered an issue in which the county of Clarion was plaintiff, and Burns defendant, the auditor’s report to stand for a declaration, and the defendant “ under the plea of payment to give all matters in defence in evidence or matter entitling him to a balance in his favor.”</p> <p>On the trial before Campbell, P. J., the plaintiff gave in evidence the report of the auditors in 1862, that the defendant did not then claim any credit on account of the Porter township duplicate, and that he paid the whole balance to his successor; that when he paid it he said part was his own money; at one time he paid about $500, saying that he paid it because he wanted to get rid of the debt; that the money was in the hands of McClelland and some others at that time.</p> <p>Burns gave evidence of the amount of duplicate which went into McClelland’s hands; he also gave evidence tending to show the insolvency of McClelland and his sureties. The plaintiff in rebuttal gave evidence that no suit had been brought against McClelland or his sureties.</p> <p>The plaintiff asked the court to charge:—</p> <p>“ That if James T. Burns settled his account on the 15th of January 1862 with the auditors of Clarion county without objection, and afterwards paid the balance at said settlement to his successor (although he may have paid with his own funds), he cannot now recover any part of such money so paid back; that a party paying money voluntarily to another under a claim of right cannot recover the same back.”</p> <p>The court said:—</p> <p>“We answer the plaintiff’s point in the affirmative and as that controls the case, we instruct you to find a verdict for the plaintiff.” ,</p> <p>The jury found for the plaintiff. The defendant on a writ of error assigned the instruction of the court for error.</p>

<p>1. A deed was made to trustees “for the use of the Presbyterian and Lutheran congregations respectively as at present organized, &o., but if either congregation deem it conducive to their interests * * the property be equitably divided by a committee of impartial persons selected by both congregations.” One congregation having taken exclusive possession of the property, held, that it was a dispute and division between members, of an unincorporated society in relation to their rights and privileges, and not merely as tenants in common of real estate, and equity had jurisdiction to restore those excluded to their rights,</p> <p>2. Relief could be afforded only by equity, and the malcontents could be restrained and held to their duties only by the power of a chancellor.</p> <p>3. The finding of facts by a master, approved by the court, will be set aside only for plain error.</p>

<p>October 21st 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.</p> <p>Error to tbe Court of Common Pleas of Erie county: Of October and November Term 1869, No. 195.</p> <p>This was an action' of debt brought, March 15th 1866,' by the Commonwealth to the use of Martha E. Raser against William R. Lockwood, Elizabeth K. Raser, Charles C. Boyd and Daniel Vincent. The writ was returned “nihil” as to Lockwood and Vincent, and “ summoned” as to the other defendants. The suit was'on the bond of Lockwood, guardian of Martha E. Raser, a minor child of Thomas Raser, deceased, with the other defendants as his sureties in the penalty of $2000; conditioned that Lockwood, as guardian, should “ at least once in every three years, and at any other time when required by the Orphans’ Court, render a just and true account of his management of the property and estate of said minor under his care, and deliver up said property agreeably to the order of the said court or the directions of law, and in all respects faithfully perform the duties of■ guardian,” &c. ’</p> <p>At the trial before Johnson, P. J., the plaintiff gave the bond in evidence, and the following receipt:—</p> <p>“ Received, June 30th 1858, of Daniel Vincent and Mrs. E. K. Raser, administrator and' administratrix of the estate of Thomas Raser, deceased, eight thousand dollars, supposed to be the amount due said Raser’s heirs from his estate.</p> <p>“Wm. R. Lockwood, Guardian.”</p> <p>Also the inventory of Thomas Raser’s estate amounting to $12,359.75; also certificate of the clerk of the Orphans’ Court that Lockwood had filed no account prior to March 15th 1866,' the commencement of the suit, and none since May 1867; and certifying' that he had filed one on the 17th of November 1866. There were six wards. At the trial Martha was about twenty-six years of age. Lockwood moved to Quincy, Illinois, in 1859, and has not been back since.</p> <p>The court, after receiving the foregoing testimony, ordered a nonsuit. The plaintiff removed the case to the Supreme Court, and assigned the ordering a nonsuit for error.</p>

<p>The expenses of maintaining an infant committed to the House of Refuge of Western Pennsylvania are to be borne by the county of his residence, notwithstanding he -may have been committed by a magistrate of another county. ,</p>

October 22d 1869; Before Thompson, C. J., Read, Agnew, Sharswood, and Williams, JJ. Error to the Court of Common Pleas of Erie county: No. 40, to October and November Term 1869. In the court below Edwin Reed, on the 28th of November 1867, brought an action of assumpsit against Amity township, Erie county. The cause of action was the following order:— “200. Treasurer of Amity township pay Edwin Reed two hundred dollars, bounty-money, eleven months from date without interest.

<p>October 22d 1869. Before Thompson, 0. J., Read, Agnew, Sharswood and Williams, JJ.</p> <p>Error to the Court of -Common Pleas of Venango county: No. 132, to October and November Term 1869.</p> <p>This was an action of replevin by S. A. Barnes against the Chicago and Allegheny Oil Company, the Garden City Petroleum Company, Honoré & Walker and others, for a frame house, two stories high, on lot No. 74 Holmden street, Pithole City. The writ was issued' October 17th 1867. The sheriff returned that he bad served the writ and delivered to the plaintiff the goods described in it. The defendants avowed the taking for $200 rent in arrear.</p> <p>The plaintiff pleaded non demiserunt and no rent in grrear.</p> <p>On the trial, before Trunkey, P. J., it was admitted that the property described in the writ belonged to the plaintiff at the time of the distress.</p> <p>The defendants gave in-evidence a lease, dated June 6th 1865, from Thomas G. Duncan and George C. Prather to Abel M. French, for three years, for lot No. 74, on Holmden street, Pit-hole City, on the Duncan & Prather farm, for building and storage purposes only, with right to the tenant to remove such property as .may belong to him, and a covenant that the tenant will remove such building as may be on the lot at the end of term. They gave in evidence a deed from Duncan and others to George R. Chittenden and D. G. Wright, dated September 3Qth 1865 [\he paper-book did not specify for what property]; one November 8th, from Duncan & Prather and others to Wesley Munger for one-eighth of the farm; and, same day, deed from the same to H. Honoré for three-eighths of the farm; and a quit-claim, December 11th 1865, of Wright to Chittenden. Also deed March 30th 1866 from George R. Chittenden to Ira Y. Munn for the undivided fourth part of the farm, excepting certain portions specified, but not lot 74, in trust to receive the revenues, and, with the approval of the creditors of Chicago and Allegheny Oil and Mining Company, to sell and convey the land, and apply the revenues and proceeds of sale in payment of certain bonds of the company, to pay other debts of the company and transfer to the stockholders of the company any land or products that may remain, &c. The defendants also gave in evidence a declaration of trust, dated December 5th 1867, by Munger for the Garden City Petroleum Company. They also gave evidence that the warrant of distress was signed by the agents of the Chicago and Allegheny Company, the Garden City Company, H. H. Honoré, Samuel J. Walker and -Ellis, and that plaintiff was in possession. Plaintiff gave evidence that he had paid part of the rent soon after the distress, and that he had been in possession but a month before the distress.</p> <p>The court charged', amongst other things: “ It seems not to be controverted, that the plaintiff, Barnes, succeeded to all the rights of the lessee under the lease by Duncan & Prather to French, dated June 6th 1865. It is alleged, that by divers conveyances, the title of Duncan & Prather became vested in the defendants. If so, the defendants had a right to collect the rent by action or distress.</p> <p>“If all these defendants, as such grantees, avow and fail to show the right in all of them as such, but only show a part thereof, they fail to make out the case on their part, and the plaintiff is entitled to recover.</p> <p>“ To show that the title of Duncan & Prather had become vested in those who make the avowry, the defendants gave in evideuce, amongst other conveyances, a deed from George R. Chittenden to Ira Y. Munn, in trust, dated March 30th 1866. [The character of the trust seems to have been for the creditors of the Allegheny Oil Company, Munn being authorized to receive all the income, to be paid on certain debts, and, by leave of a majority of the creditors, to convey the property. This deed does not vest the title and right to distrain in the company.”] * * *</p> <p>. The verdict was for the plaintiff. The defendants took a writ of error, and assigned six errors, the sixth of which was the part of the charge enclosed in brackets.</p>

October 22th 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ. Appeal from the decree of the Court of Common Pleas of Orawford-county: In Equity: No. 217, to October and November •Term 1869. On the 27th of February 1867, Gurdon S. Berry filed his bill against Thomas Clark, and afterwards, on the 12th of March, filed an amended bill, which set'out: 1.

<p>1. Cross-examination must be confined to the matters stated in the examination in chief.</p> <p>2. A party cannot lead out new matter constituting his own case by the cross-examination of his adversary’s witness.</p> <p>3. Allowing new matter to be brought out on cross-examination is generally considered as within the sound discretion of the court below.</p> <p>4. In order to reverse for this cause, it must be an extreme case, in which the discretion has been abused and in which it is apparent the party has been injured.</p> <p>5. Where a witness has stated a fact, he may be asked by the other party to detail all the circumstances within his knowledge which qualify it, though they may be new matter and form part of his own ease.</p> <p>6. By a written agreement, afterwards abandoned, J. was to pay L. $3250 for certain privileges on L.’s dam, and L. was to repair the dam ; $1250 of the sum to be paid “ as the work progressed on the dam.” A witness who drew the agreement might prove that $2000 were for the privileges and the balance for repairing the dam.</p> <p>7. L. by writing granted to J. certain privileges on his land and dam, L. to repair the dam; afterwards it was agreed by parol that L. instead should build a new dam for which J. should pay half the cost. Held, that this latter agreement was not within the Statute of Frauds.</p>

<p>1. Whether a seal is necessary to contract or not, is not the test of the power of one partner to bind the firm by an instrument under seal.</p> <p>2. A contract under seal requires no consideration to support it, a seal importing a consideration.</p> <p>3. Executed contracts may be evidenced by an instrument under seal by one partner.</p> <p>4. Parol authority to an agent to make a contract may be executed by him under seal; the seal is surplusage, being in excess of his authority.</p> <p>5. A verdict in debt finding no specific sum is void.</p>

<p>1. A counsel or attorney employed and consulted as such, to draw a deed, or an application for an original title for land, is in the line of his profession, and is precluded from buying in for his own use any outstanding title.</p> <p>2. The relation of the attorney in such case to his client is confidential, and, whether he acts upon information derived from him or from any other source, he is affected with a trust.</p> <p>3. This rule is on the ground of policy, not of fraud, and prevails although tbe attorney be innocent of any intention to deceive, and be act in good faith.</p> <p>4. When the attorney buys a title outstanding or adverse to land as to which he has been consulted or employed, he buys for his client, if the client so elect.</p> <p>5. The client must reimburse the outlay and costs of the trustee, unless in a ease of manifest fraud.</p> <p>6. A sale for taxes by the treasurer could not convey title beyond the then ascertained lines of his county, and subsequent changes of the county line would not enlarge the right of the purchaser.</p> <p>7. Cambria county was erected in 1804, and commissioners directed to locate^ the lines; in 1849, by Act of Assembly, G. and Y. were appointed commissioners to establish one of the lines, file their report, &c., which they did; there was some evidence of the survey of a line previously. The court properly instructed the jury, that if there'was no other line than that indicated by the act creating the county, the fixing that line by G. and Y. should be regarded as indicating where it was and had been, unless there was evidence showing that at the treasurer’s sale the officers of the county recognised another.</p> <p>8. A verdict in ejectment may describe a tract by reference to something of a permanent and public nature, as a recorded deed or diagram, &c.</p> <p>9. If the verdict enable the court to give judgment, and the sheriff to execute an habere facias, it will not be disturbed.</p> <p>10. The public recorded boundary line of a county falls within these principles.</p>

<p>1. Children until they have acquired settlements by their own acts, remain settled where they were born, the settlement of the parents being their settlement.</p> <p>2. A widow may acquire a settlement for herself, different from that of her husband.</p> <p>3. It is the headship of the family which gives the settlement of the father to his children.</p> <p>4. By complying with the terms of the Act of Assembly a widow may acquire a settlement which is communicable to her children.</p> <p>5. The relation of a father to a minor child is different from that of a mother as to private parties; but as to the public it is the same.</p>

October 26th 1869. Before Thompson, C. J., Read, A&nbw, Sharswood and Williams, JJ. Error to the Court of Common Pleas of Westmoreland county: No. 10, to October and November Term 1869. This was an action of ejectment, to May Term 1866, for 60 acres of land, in which James C. Best was plaintiff, and James B. Campbell and Isaac Kuhns, defendants. James Best, the father of the plaintiff, died intestate about the year 1817, leaving to survive him a widow, Mary G. Best.

<p>October 26th 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.</p> <p>Error to the Court of Quarter Sessions of Armstrong county:</p> <p>No. 30, to October and November Term 1869.</p> <p>On the 27th of March 1868 an order was issued by two justices of the peace for the removal of Olive Greek, a pauper, from the township of Washington to the township of Sugar Creek, both being in Armstrong county. Notice of the order was served on the overseers of Sugar Creek on the 2d of April. On the 4th of December 1868 the overseers of Sugar Creek appealed to the Court of Quarter Sessions, two terms having elapsed between the issuing and serving of the order and the entry of the appeal. A rule was granted on the application of the overseers of Washington township, to show cause why the appeal should not be stricken off; and the deposition of one of the overseers of Sugar Creek township was taken. He testified that the order of removal and the pauper were brought to him, that he refused to receive her, declaring that she had no settlement in that township, and proposing to prove it, that it was then agreed that she should be takemback to Washington township, and nothing was to be done till the question should be determined at a meeting between the overseers of the two townships. The overseers of Washington township were to inform the other overseers when they would meet them. Nothing further was done till the overseers of Washington presented the other overseers a bill for the pauper’s maintenance; and the overseers of Sugar Creek immediately appealed from the order of removal; that the only reason for not appealing was the agreement referred to.</p> <p>The court struck off the appeal and sealed a bill of exceptions.</p> <p>The overseers of Sugar Creek township took a writ of error, and assigned for error the order striking off the appeal.</p>

<p>October 26th and 27th 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.</p> <p>Error to the Court of Common Pleas of Armstrong county: No. 31 of October and November Term 1869.</p> <p>In the court below a judgment was entered April 23d 1866, in favor of J. H. Sloan against Hugh Campbell and Charles Bonner, on bond with warrant of attorney, dated April 3d 1866, conditioned for the payment of $2000 in one year. On the “ 23d of October 1867, on motion of J. Y. Painter, attorney for sureties and junior judgment-creditors of Hugh Campbell, rule granted to show cause why the above-stated judgment should not be opened, and they permitted to defend.”</p> <p>This rule was made absolute June 6th 1868, and the defendant subsequently pleaded “ nil debit, want of consideration, usury, illegal consideration.”</p> <p>On the trial before Buffington, P. J., Sloan, the plaintiff in. the judgment, testified : On the 3d of April 1858, he loaned Campbell $2000 with interest at 10 per cent, per annum, and took his note with H. J. Arnold as his surety; Campbell then paid $200 to Sloan, and continued to pay $200 annually; Arnold having died, “ this note was lifted, new bail, old note settled up, new note taken,” the one on which the judgment in controversy was entered, the arrangement being still to pay 10 per cent, interest; one payment of $200 has been made on the latter note.</p> <p>The plaintiff’s 2d point was:—</p> <p>Upon the whole evidence there is no legal defence to the plaintiff’s claim, and the verdict of the jury must be for the amount of the note, with interest, deducting only such payments as have been made upon and applied to the note now in suit.</p> <p>To this the court answered:—</p> <p>“ This point is answered in the negative, if the jury believe the new note was a mere continuance of the old debt.</p> <p>“ If the new note was given as payment and satisfaction of the old debt, and so agreed upon by the parties, then it is to be treated as a new indebtedness.</p> <p>“ But if merely given and received as additional security, or as a continuance of the debt secured by the first note, and is thus a continuance of the former and a mere change of security or evidence of indebtedness, it would still leave it subject to the same rule as if the original evidence of the indebtedness had been continued, as the new note not being of any higher grade would not merge the former one as a matter of law.”</p> <p>The court further charged: * * “ In our answer to the plaintiff’s 2d point we endeavored to draw the distinction between the debt and the evidence of it, and instructed the jury that if the debt as between the parties continued the same, the excess over 6 per cent, ought to be deducted and the defendants allowed a credit for it on this judgment; but, on the other hand, if the parties by their own acts and agreements agreed to treat the old indebtedness as well as the evidence of it as extinguished and cancelled, and agreed that a new bond should be given with other sureties, then we think the old indebtedness would cease, and a new one spring into existence, liable only for its own sins and not for the sins of its parents or predecessors.</p> <p>“ This view of the case involves the very important question of fact, what was the agreement or understanding of the parties ? As mere matters of law between the parties debtor and creditor, the second bond being of no higher grade than the first, would not operate as a merger, but might be additional security merely, but if the parties agreed differently they had the right to do so, and such agreement would be effectual to fix their rights and duties.</p> <p>“ The jury, therefore, being judges of the facts, will decide this question.”</p> <p>The jury found for the plaintiff $2115.84.</p> <p>The defendants took a writ of error and assigned for error the answer to the plaintiffs point and the charge of the court.</p>

<p>October 28th 1869. Before Thompson, C. J., Read, Ag-new, Sharswood and Williams, JJ.</p> <p>Error to the Court of Common Pleas of Cambria county: No. 46, to October and November Term 1869.</p> <p>In the court below Nicholas Altimus brought an action of assumpsit against James R. Cooper, to September Term 1866, to •recover the price of between 4000 and 5000 staves.</p> <p>On the trial before Taylor, P. J., December. 15th 1868, the plaintiff gave in evidence these letters:—</p> <p>“ Summerhill, September 18th 1865.</p> <p>“ Mr. N. Altimus.</p> <p>“ Dear Sir: I told Hurlinger when he came to your place I told him to ask you if you had any staves to sell. Wish you would let me know. Some of your neighbors may have some to sell. Let me know and yours oblige.</p> <p>“J. R. Cooker.”</p> <p>“Mr. James R. Cooper.</p> <p>“Dear Sir: In answer to yours I have six or seven hundred staves, and I have been looking out to get. some more for you, if you would let me know how much you could giye per hundred, I could get four or five thousand with some .heading. They would be delivered at Nineveh station. They are all white oak. Let me know soon. Yours, “Nicholas Altimus.”</p> <p>. “ Summerhill, October 18th 1865.</p> <p>“ Mr. N. Altimus.</p> <p>“ Dear Sir: Received yours of the 18th in regard to staves. If they are rift staves, and good, I will give you $35 per thousand delivered at the station. Let me hear from you soon.</p> <p>“ J. R. Cooper.”</p> <p>David Altimus testified that he delivered at Nineveh station 4040 staves on the plaintiff’s contract in November 1865, and that when he unloaded the last he sent word to the defendant that they were delivered; James Dill borrowed part of the staves and replaced them; he did not buy them. There was other evidence that the staves were delivered at Nineveh station; that they were white oak rift staves and considered good. There was evidence for the defendant that the staves were not fit for. market. On cross-examination, defendant’s witnesses testified that he took them to where the staves were to examine them, but he did not say anything about having bought them.</p> <p>James Dill gave testimony from which it might be inferred that the plaintiff sold the staves to him; he took 2000 of the staves, sent word to plaintiff to come and get his pay; plaintiff replied that he had sold them to Cooper, and witness returned 2000 staves in place of those he took.</p> <p>The court charged:— * * *</p> <p>“ Now if- the plaintiff, after receiving this letter, and after what had taken place between them before, proceeded to deliver the staves immediately at the place designated, and of the description and quality specified, and at once informed Cooper, it was a compliance with the proposition, and a contract if they were so delivered for Cooper in pursuance of that proposition; even though he failed to tell Cooper beforehand that he was going to deliver them. The proposition was like an order, assent to which would be implied from the act of compliance with it, if the staves were delivered in pursuance of it, and of the description and quality specified.” * * *</p> <p>“ If the staves were not delivered at the station for Mr. Cooper, but for any one else, or with the view of making the best of them there, and after an effort and a failure to dispose of them otherwise, the plaintiff informed Mr. Cooper that they were there for. him, it was not a contract. It would depend on whether they were delivered, in pursuance of the proposition, for Mr. Cooper. If they were delivered for himself, intending to make the best he could of them by selling them to somebody else, and after failing to do that, he gave notice, such delivery was not assent to the proposition of Mr. Cooper, which is the first element in a contract; and this transaction, moreover, lacked the consideration and mutuality necessary to entitle it to that character.” * * “Now, when put there, were the staves put there by the plaintiff for Cooper, and was he induced to put them there by the proposition of Cooper, and in compliance with it ? If so, it was a contract, and when put there and Cooper informed of it, he was bound if the staves were of the character and quality specified in the proposition ; while if they were not so delivered, it was not a contract —the act of depositing the staves at Nineveh station, viewed with the proposition, did not amount to a contract. You will judge. The evidence is with you, and it is a question for you. It must, appear from the evidence, we repeat, that there was in all the parts of the transaction what amounts to a contract; and if that is not shown, the plaintiff’s action would here fail. If a contract is shown, and you so find, then the next inquiry is, were the staves of the description and quality contracted for ? If so, and he was notified, Mr. Cooper was bound to receive them, although he was not there at the time to take charge of them. If delivered at the place, and an article answering the express description contained in the proposition, he would be bound, according to the terms of the contract, to pay for them at the price he offered. On the other hand, assuming that there was a contract, one of the express terms of it was that the defendant would take them ‘if they were all rift staves and good;’ and if they were not ‘rift staves and good,’ he was.not bound to receive them if he had been there at the time, because this is an express stipulation of the contract.</p> <p>“ If an article is delivered under a contract, and does not come up to the description expressed in it, still, if the vendee receives it, or if after notice he fails to let the vendor know that he declines to receive it, and that he does not consider it a compliance with the contract, or if he does anything to induce the vendor to suppose that he makes no objection by which he sustains inconvenience or loss, the vendee would be bound to pay, not the stipulated price, if the article is not'of the stipulated quality, but its value.” * * *</p> <p>“ If the staves were not of a reasonably merchantable character, answering the description of Cooper, although found to have been delivered for him in compliance otherwise with his proposition, he was not bound to receive them and pay for them, unless he failed to give notice of his objections, or did or failed to do something by word or act to prevent Altimus from realizing what he might have done out of the staves, and by means of some fault in Cooper, in which respect he sustained loss.</p> <p>“ We are not informed what took place between the parties immediately after the alleged delivery of the staves, but shortly afterwards, from the disclosed conduct of Cooper, it might be fairly inferred that he was objecting to receive or take them. He did not take them away, was examining them soon afterwards, and in the early part of the summer, or about six months after-wards, this action was brought. You will inquire whether there is anything in this aspect of the case, if your conclusion should be that the staves were not of the description and quality that Cooper was bound to receive upon the terms of the contract, if there was a contract, which would still render him liable; whether the facts and the attitude of the parties, as disclosed here, show or do not show that from the time they were left at the station Cooper was refusing to .receive them. There is nothing expressed directly upon this question. Any conclusion arrived..at must be gathered or inferred from the conduct of the parties. If your conclusion should be that Cooper refused to receive them at the time — and that would seem to us to have been his attitude all the time afterwards — then he would not be bound to pay at all, if the staves were not such as he had bought; while, if he failed to give notice, or to apprise the plaintiff of his refusal in such case, or did anything which misled him upon that subject, then he would be bound, although the staves were not such as the plaintiff was bound to deliver, to pay their value, upon the principle of the eases cited; and you will determine all these questions of fact for yourselves, from the evidence.”</p> <p>The verdict was for the plaintiff for $118.25.</p> <p>The defendant took a writ of error, and assigned for error that the court erred—</p> <p>1. In submitting to the jury the existence of a contract, without defining to them what, as matter of law, would be a contract.</p> <p>2. In charging the jury that this case should be assimilated to that .of an “order.”</p> <p>3. In submitting to the jury the inquiry whether, by any act or conduct of Mr. Cooper, the plaintiff Mr. Altimus had sustained loss, when there was no evidence on that subject at all.</p>

<p>1. Municipalities are public corporations created for political purposes, and invested with subordinate legislative powers for local purposes connected with the public good. I.</p> <p>2. The maintenance of a police force is a proper power which may be constitutionally committed to a municipal corporation.</p> <p>3. The municipal government is but a branch of the government of the state; whatever powers .of taxation the legislature possess they may grant to such body.</p> <p>4. There are no limitations to these powers expressed in the Constitution, but there are limits in the nature of things.</p> <p>5. The .legislature cannot, under the name of taxation, take private property for public use without compensation ; a special tax on an individual or particular individuals would infringe this restriction.</p> <p>6. But, in the exercise of the power of taxation, persons and things may be classified.</p> <p>7. If the taxation is on all of a class, it may include one or many, and whether they reside in any particular locality or are scattered over the state.</p> <p>8. An act of the legislature cannot be declared unconstitutional unless it violate some prohibition expressed or necessarily implied, either of the Federal or State Constitutions.</p> <p>9. An act, reciting the necessity of maintaining a police, authorized the borough of Johnstown, for the purpose of maintaining such police, to assess upon each keeper, &e., of any bar, saloon, &c., a tax not more than §25 nor less than §100, to be levied as other taxes in the borough. Eeld, that such act was constitutional.</p>

<p>October 28th 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.</p> <p>Error to the Court of Common Pleas of Indiana county: No. 155, to October and November Term 1868.</p> <p>This was an action of covenant brought May 18th 1866 by Hugh A. Thompson against B. L. Eshelman, Thomas Grorman and Charles Hammer, returnable the first Monday in June. The writ was returned May 19th “ Summoned” as to Eshelman, and “ Nihil” as to the other defendants.</p> <p>The plaintiff declared on an agreement made the 1st of October 1864 between himself and the defendants, by which he granted to the defendants the right to mine and carry away, for ten years, the fossil coal out of a tract of land in Burrell township, Indiana county; in consideration of which the defendants agreed to pay the plaintiff 15 cents per ton for all the coal mined, the weight to be ascertained in the manner specified in the agreement; the defendants to pay to the plaintiff, on or before the 15th day of each month, “ the rent for the coal mined” during the month next preceding; the defendants, at their own cost, to put up and maintain the necessary houses, fixtures, &c., to be taken at the end of the term by the plaintiff at a valuation, ascertained in a mode specified in the agreement; the defendants to work the mines with diligence, and mine and carry away during every year of the term 8000 tons, “ unless they shall show some sufficient and reasonable obstacle to prevent them so doing.” The defendants further covenanted to mine, &c., in a workmanlike manner. The parties were to sustain the relation of landlord and tenant, and all laws for distraining, &c., for rent to extend to this lease. The breach set out was, that the defendants had not mined 8000 tons of coal per year, nor paid 15 cents per ton therefor, nor shown any reasonable obstacle for not having so done, nor put up any buildings, &c., nor performed any of the other stipulations in the agreement. A copy of the agreement was filed with the declaration.</p> <p>On the 25th of June 1866 a judgment was taken against Eshelman for $2095, for want of an affidavit of defence.</p> <p>An Act of Assembly relating to Indiana county provides, that “ in all actions brought on bills, notes, bonds and other instruments of writing for the payment of money, &c., it shall be lawful for the plaintiff on or at any time after the third Saturday succeeding the return day, &c., to enter judgment by default, &c., unless the defendant shall have previously filed an affidavit of defence.”</p> <p>The defendant moved the court to take off the judgment, which was refused. He took a writ of error, and assigned for error the refusal to take off the judgment.</p>

<p>1. Pavitt confessed judgments May 1st 1867; June 12th, other creditors petitioned to have him declared a bankrupt; August 8th, a jury of the United States Court found that the judgments were in fraud of the bankrupt law, and he was adjudged a bankrupt. July 12th, an auditor of the Common Pleas awarded the money made on executions under the judgments to the plaintiffs in them. The assignee in bankruptcy (before the report of the auditor was confirmed absolutely, but after the time allowed by the rules of court to file exceptions and ask an issue) asked leave to file exceptions, and that the court would direct an issue to try whether the judgments were not fraudulent. The applications were refused. Held, to be error.</p> <p>2. It was the duty of1 the court to allow the assignee a hearing, and to award the issues.</p> <p>3. The rights of the assignee ran back to the time the judgments were confessed, and he had the right to ask the state courts to allow him to come in, at any time before the final decree, to claim against creditors who are postponed by operation of law, and to have a trial of the facts.</p> <p>4. Pavitt’s property having been sold under the executions, before the proceedings in bankruptcy commenced, was rightfully converted and brought into the state court for distribution.</p> <p>5. The assignee could not follow the property, but must, in the state court, lay his claim as rightful owner of the fund.</p> <p>6. It was not necessary that the judgments should have been opened: the Act of Congress operates directly on the rights of creditors making void their preference and letting in the assignee on the fund.</p> <p>7. The assignee does not claim on an adverse title, but through the bankrupt under the Act of Congress.</p> <p>8. The assignee was a party aggrieved, and had a right to appeal.</p>