Volume 63 — Pennsylvania State Reports

<p>Error to tbe Court of Common Pleas of Jefferson county: No. 106, to October and November Term 1869.</p> <p>This was an action of ejectment commenced December 22d 1866, by Lizzie G. Douglass and others, minor children and heirs of James Douglass, deceased, against Thomas Lucas, for 404 acres of land. On the trial, December 18th 1868, before Campbell, P. J., the plaintiffs gave in evidence receipts for the payment of the purchase-money for the land and office fees, amounting in the whole to $122.67, and patent dated March 17th 1856, to James Douglass, their ancestor, for 404 acres and 81 perches of land, the premises in controversy.</p> <p>The plaintiffs having rested, the defendant called James Moore-head, who testified: he had discovered the land to be vacant, and agreed with Douglass and Lucas to show them the vacancy for $25, each. Lucas paid him $25; Douglass paid him $5 only of the amount; the application was made in the name of Douglass only, Douglass declaring that Lucas was entitled to one-half, but that it was made in his own name, because Lucas was in debt. Both agreed that Douglass was to bear all the expenses of the warrant and patent; Lucas to do all the boarding, find all the hands for surveying, and after the patent should be obtained, Lucas was to pay Douglass $25 more, and each was to have one-half of the land. When they were about making arrangements for running the division line between them, they thought that any division line that could be conveniently run, would not make a fair division of the timber; they therefore agreed that each should take some timber from the land before making the dividing line. Douglass afterwards told witness to divide the land by a line running east and west. There was other evidence of the agreement between Douglass and the defendant, that each was to have half of the land, and of the payment by defendant to Moorehead.</p> <p>Joseph P. Lucas, a son of defendant, testified: his father claimed half the Douglass warrant, and has used it ever since; in 1854 he built a lumber shanty on it, and took about 4000 feet of lumber from it; had been lumbering on it from time to time till 1862; since then no timber had been taken off; the shanty is still there, and the defendant takes a tree whenever he wants one. Douglass said defendant had taken more than he, Douglass, had; he contended he should have half the timber. Defendant never lived on the land; the shanty has been occupied for the purpose of taking timber; there had been no cultivation of the land; witness’ brothers took timber in 1862; their families lived in the shanty with them. There was other evidence that the shanty had been occupied under defendant for taking lumber, and when that was done the occupants left: that all the occupancy of the land was for lumbering purposes. There was evidence also that Douglass claimed but half the land; that the defendant and he owned it in partnership, &c.</p> <p>The plaintiffs submitted these points :—</p> <p>“ 1. The evidence in this case is not sufficient to raise a resulting trust, and therefore the jury must find for the plaintiffs.</p> <p>“ 2. 'The possession shown by the evidence is not sufficient to toll the Aet of 1856.</p> <p>“ 3. Under the evidence in the case, they must find for the plaintiffs.”</p> <p>The court answered the points thus:—</p> <p>“1. We refuse to answer this point as requested. The evidence of the contract and the payment of the consideration rests entirely in parol. There is some evidence that the plaintiff was to take out the title, and defendant be at the expense of the surveying, and the land to belong to both. Whether the amount paid by each was equal or not, if each paid what was agreed to be his proportion of the cost and expense of procuring the title, and the land was to be the property of both, and if Douglass took out the title in his own name, it would raise a trust by operation of law.</p> <p>“ 2. We answer this point, that actual resident possession is not necessary to toll the statute of 1856. If the defendant entered upon the land in question, if he was a cestui que t?-ust, for the purpose of claiming, or if he exercised acts of ownership and dominion over the property, such as entering and cutting timber, and appropriating it to his own use, and continued such entries and acts of ownership under his claim of right, up to the commencement of this suit, it would toll the statute, although in point of fact there was no actual possession by either party.</p> <p>“ 3. That whether the plaintiff is entitled to recover or not depends on how the jury find the facts on the evidence in the case.”</p> <p>The verdict was for the defendant for “the undivided half of the land.”</p> <p>The plaintiffs removed the case to the Supreme Court, and there assigned the answers to their points for error.</p>

<p>*■1. It is the duty of a common carrier to provide a vehicle in all respects adapted to the purpose of carriage, and so constructed as to encounter the ordinary risks of transportation.</p> <p>V 2. In default of the vehicle being of such character, the carrier becomes responsible for any loss consequent on such defect, or any to which it may haye contributed.</p> <p>*<*3. When any merchandise is on the same train with cars loaded with combustible substance, easily ignited by sparks, it is the special duty of the carrier to take every available precaution against the spreading and communication of fire, should it occur.</p> <p>4. An evident and simple measure of precaution is to have the coupling of the cars in such order that any one can be easily detached from the others, in time to be saved from the consequences.</p> <p>5. The facts being that the coupling is defective and the car containing goods could not be detached from another car on fire, in time to be saved,— unless the defect was from inevitable accident, — the negligence and liability of the carrier are inferences of law from the facts.</p> <p>¿^6. When the carriage is defective at the time of an injury, and the defect contributed to it, the onus is on the carrier to disprove negligence.</p> <p>^ 7. The carrier must show that the defect arose, not from insufficiency of the vehicle, but from some subsequent accident beyond his control.</p> <p>j3. A carrier cannot by notice or limitation in contract or bill of lading protect himself from liability for negligence of himself or servants.</p>

<p>1. A railroad being a public highway, every owner of cars on it is in possession of his own cars on w.hat part soever of the track they may be; such cars are not in possession of the company.</p> <p>2. The right of the cars to remain on the track cannot be denied, subject to the regulations of the company as to the place they shall occupy when not in use.</p> <p>3. McCormick owned a car, which was on a siding in charge of an agent of the company; he sold it to Truniek, -who requested the agent to take charge of it for him, which the agent did, the car remaining on the siding as before. Held, that there was not such change of possession as would protect the car from McCormick's creditors.</p> <p>4. The agent of the company did not beeome bailee of Truniek.</p> <p>5. Deposit, as a bailment, implies an actual delivery of possession for a special purpose.</p> <p>6. Leaving a car on a siding is not such a delivery as constitutes a bailment ; it is only a constructive delivery, and this requires more to be done.</p> <p>7. It must appear that there was an intention to transfer the possession.</p>

<p>1. Iiays sold land to 'Wallace,*who gave a mortgage for the purchase-money. A balance being unpaid, Wallace offered to pay on condition that Hays would assign it to Nixon. Hays refused, and issued a sci. fa., which Wallaee defended on the ground of misrepresentation as to the land. Held, that evidence by Hays was admissible that at the time of the offer of payment Wallace made no objection on the ground of set-off, or that the whole balance was not due.</p> <p>2. Prior to the sale by Hays, he issued a pamphlet, containing a description of the property, of which he made no other representations. Held, that this was in the nature of an advertisement, and not like a representation of fact made directly to a purchaser.</p> <p>3. Hays agreed that the payment of the mortgage should be postponed for eighteen months after it became due. Held, that this was not within the act forbidding the issuing of a sci. fa. for a year after the mortgage was due.</p> <p>4. The agreement was a covenant not to sue, but was no part of the mortgage.</p>

<p>1. The onus is on a plaintiff in error to make out his assignment of error affirmatively, he must furnish in the record and on his paper-book, all that is necessary for that purpose.</p> <p>2. It is an established rule of the Supreme Court not to reverse on account of the reception or rejection of written evidence without having the paper or a copy of it.</p> <p>3. There is no legal right to insist upon the repetition by a witness of a former part of his testimony; it is within the discretion of the court below.</p> <p>4. The court has a right to interpose when a witness is asked to repeat, though no objection be raised by the opposite party.</p> <p>5. Justification under a private way must be specially pleaded, and cannot be given in evidence under the general issue.</p> <p>6. In an action of trespass in which the defendant pleaded that the locus in quo was a public highway, it was error so to charge that the jury might infer that proof of either a public or private way would be a justification of the trespass.</p>

120, to October and November Term 1869. At June Sessions 1868, of the Court of Quarter Sessions of Armstrong county, 0.

<p>1. In trespass q. c.f, £<not guilty” puts the plaintiff's possession in issue, which the defendant may disprove by proving his own ancient and continued possession of the locus in quo.</p> <p>2. Pedigree and boundary are the excepted cases wherein reputation and hearsay of deceased persons are received in evidence.</p> <p>3. Ancient maps • and surveys are evidence to elucidate and ascertain boundary and fix monuments.</p> <p>4. No drafts when offered for title will be received except they bear an official character; and in this they differ from those offered to show boundary.</p> <p>5. A party claimed to what was known as the “ Taylor line.” On the trial he offered a draft dated forty-five years previously, proved to have been in the possession of a former owner, who claimed by it thirty-five years before, and proved also to be the handwriting of Taylor, who was a surveyor, and was dead. Held, to be evidence of boundary.</p>

<p>Error to the Court of Common Pleas of Westmoreland county: No. 174, to October and November Term 1869.</p> <p>This was an action of ejectment by Bridget McGinity and others, heirs of Thomas McGinity deceased, against May McGinity and John Crosby for about 94 acres of land in Derry township, Westmoreland county, the legal title to which was in John Mc-Ginity, deceased, the plaintiffs claiming that it was held in trust for their ancestor, Thomas McGinity. The writ was issued August 13th 1860. Both parties claimed under John Mason. The plaintiffs gave in evidence a deed dated December 6th 1860 from Mason to John McGinity, deceased, for the land in controversy, the consideration being $2000.</p> <p>On the trial before Buffington, P. J., Mason testified that he having the land for sale Thomas McGinity came to see him in the spring of 1860 about purchasing; he examined the farm, said he was looking out for a small farm, said he wished to look at other farms, and went away; returned some time afterwards, inquired about payment; witness told him the price was $2000 and he wanted it all down; Thomas returned again, said he could not buy himself, but had a brother who said he would “ lend him $600 and not charge him interest if not paid for seven years;” this was the 3d of July. John and Thomas afterwards came together; John said it was a poor farm, he would not give $14 per acre for his own use, nor would Thomas buy if it were not for the church in Blairsville. To this Thomas assented, and said he would take the place; the witness said to John that Thomas had told him that he would lend him $600 and not charge him interest for seven years. John said, “I did say so and will do it,” that Thomas had been unlucky and it was now for him (John) to do something for him. John said if he lent Thomas $600 he must have the writings drawn in his own name, that he would pay the money and hold the land for security. Thomas said he was a practical farmer, and if he had his health, would have the deed in his own name in three years. They went away. They came again and witness agreed to sell for $2000 — $1600 to be paid down and $200 per annum, without interest; $200 of the $1600 to be paid before signing the article. When the parties met to execute the article, the witness wanted to reserve the crops; John would not consent; Thomas said it was a small matter; they separated without doing anything; Thomas and witness met again; witness yielded as to the grain. Thomas said he could do nothing; as John was not at home. Afterwards the three met; John said the article was to be drawn in his name; Thomas did not object. “ John put his hand into his pocket-book and counted down not quite $200, he asked Thomas for it and he got it.” Thomas said the money was at Holmes’s, Pittsburg, and a time must be set for him to have it. Witness told Thomas he must have the money in gold as he had agreed. At the time appointed the three met, John took out his pocket-book, all standing around, and counted $1400 in paper; witness said to Thomas the bargain was for gold; Thomas said that was good. The deed and mortgage were afterwards executed; witness handed the deed to John, he handed it to Thomas, and said “ take that, it is for you, anyhow,” or “ well, it is for you,” witness did not recollect which. Thomas took the deed and put it into his pocket. Witness lived on the place until the succeeding April 1st. Thomas and his family moved on the place and witness left. John paid the balance on the mortgage.</p> <p>Bernard Hanna testified that John said he wanted money, he had to pay for Thomas’s place. There was other evidence of declarations by John that the land belonged to Thomas, and of Thomas acting as if owner of the land. Thomas died in 1852; John took possession of the land soon afterwards, and died in 1853; the defendant, May McGinity, is his widow, and has resided there since.</p> <p>The plaintiffs gave evidence of the rental value of the farm during John’s possession.</p> <p>The defendants gave in evidence a letter from Mason to John McGinity, dated September 28th 1850, in which he says that Mrs. McGinity had told him (Mason) that John would pay $2000 for the place, which he said he would take and allow him to move into the house; also articles of agreement, dated November 5th 1850, by which Mason agreed to convey his farm to John, for $2000; $200 in hand, $1400 on delivery of the deed, and the remainder in two equal annual payments without interest, with receipts endorsed for $200 and $1400. Also, the administration account on Thomas’s estate, filed March 26th 1855, showing that the amount of the assets was $634.83; taken by the widow $300, and, after deducting credits for expenses, &c., leaving for distribution amongst creditors a balance of $216.78. Also, the auditor’s ■report showing the amount of debts to be $1906.09; amongst which was one claim of John for $114.49, and another of $125, “ being one year’s rent of a farm under a lease to said Thomas McGinity, deceased, dated 1st January A. D. 1851.” This was allowed in full, and after expenses of the audit, $48.85 were left to be applied to the claims of general creditors. John McGinity’s estate got $3.14 on his other claim.</p> <p>D. Dunlop testified that he adjoined the land in dispute, timber was cut on his land; he complained to Thomas, who said he had nothing to do with it and sent witness to John; he said he was only a renter under John.</p> <p>N. Dunlop testified that Thomas told him the grain on the place belonged to John, who had bought .the place; that he, Thomas, was nothing but a cropper or renter.</p> <p>Isaac Pershing testified that Thomas told him that his brother had come into the county shortly before, had some money ($2000) which he invested in the Mason land, that Thomas was going to farm it, because he was a farmer, and John was not.</p> <p>The plaintiffs asked the court, amongst other prayers, to instruct the jury, “that by the contract between John and Thomas seven years were given to pay the debt, and until after that time the limitation would not commence to run.” To which the court replied, “ This is answered in the affirmative if the jury find the facts to be so.”</p> <p>The following are points submitted by the defendants with the answers of the court:—</p> <p>8. “If after this arrangement, Thomas leased the land from John, went into possession under it, disclaimed title, and held himself out as John’s tenant, then he himself denied and abandoned his equity, and the law will refer to the lease to determine the character of his possession, as well as the extent of his interest in the land; nor will equity go behind it to seek for him a different one.”</p> <p>“Answered in the affirmative if the jury believe there was such a lease as the point contemplates, the entry on the report of distribution in the Orphans’ Court of the payment of rent would not be evidence of a tenancy to affect the parties in this case, and if offered for that purpose would have been rejected.”</p> <p>4. “ Even if the alleged arrangement had been well proved, had been good against creditors, and Thomas McGinity had gone into possession in pursuance of the same, and his heirs had been unlawfully ousted by John after his death in April 1853, still they are not entitled to recover in this action brought in 1860, inasmuch as being ousted in 1853 their right of entry then accrued, if they had any. The 6th section of the Act of 22d April 1856 required them to bring their actions within two years from the date thereof, and not having done so they are barred.”</p> <p>Answer: “ This point, under the circumstances of the case, is answered in the negative. I do not think that if the jury believe Thomas’s money paid for this land, and John took the deed to secure the money he advanced for Thomas, and afterwards got possession and received the profits till reimbursed his advancements, that he or his descendants could hold after being paid, and Thomas’s children, having no right of entry without reimbursement, can claim to hold under the five year limitation.”</p> <p>5. “ Taking all the evidence in this case, it does not make out a case in which a chancellor would interfere on the part of the plaintiffs.”</p> <p>“ Answered in the negative, as the facts must be found by the jury, who are the judges of the credibility of the witnesses.”</p> <p>The court further charged:</p> <p>“ The first question is, who was the purchaser of this land ? Was it Thomas McGinity or John ? Who was designed to be the real, beneficial owner ? Whose money paid for if ? If Thomas’s money paid for it, or principally so, and John only loaned or advanced to Thomas a balance to be paid back, and took the deed for that purpose, he would be the real owner.</p> <p>“ The next question is as to the sufficiency of the evidence. If believed by the jury, we think there is a sufficiency to submit the question to them. There are some contradictions, and the jury are the judges; the evidence, to render a deed into a trust, ought to be clear and satisfactory.</p> <p>“ The next is the question of the lease, as an estoppel [the evidence on the subject of the lease is very unsatisfactory; the entry in the auditor’s report is not evidence of the fact].</p> <p>“We instruct the jury, that under all the circumstances, the limitation in the Act of 1856 does not bar this action.”</p> <p>The verdict was for the plaintiffs. The defendants removed the case to the Supreme Court, and assigned for error the instructions of the court in answer to the points and that part of the charge enclosed in brackets.</p>

<p>1. Where one knowing more than others of the occult qualities or internal values of land, and knowing or believing the condition to be one thing, he represents the facts differently to the prejudice of the owner, he is liable in damages.</p> <p>2. Where one is prevented from selling, &e., land or other property by the impertinent interference of another, he may maintain an action for the inconvenience suffered.</p> <p>3. II., being in negotiation with M. for the sale of land containing ore, P., knowing the land, falsely represented to M. that the ore would suddenly run out; in consequence M. refused to purchase. Held, that P. was liable to II. in damages,</p> <p>4. If there had been a contract for the purchase of the land by M., and he had refused to comply on account of the misrepresentations, the remedy of H. would have been on the contract.</p>

<p>Error to the District Court of Allegheny county: No. 23, to October and November Term 1868.</p> <p>This was an action of assumpsit by James Clegg and others against William H. Brown, commenced August 1st 1867.</p> <p>The paper-book did not contain the evidence, but from the history of the case it appeared that the suit was for charges for towing seven loaded coal-barges from Pittsburg to Cairo, and towing the barges empty back to Pittsburg. The claim as contained in the bill of particulars amounted to $2566.70. The defence was that the plaintiffs had undertaken to tow eight barges, and had sunk or lost one of them with its load of coal, and had damaged two others.</p> <p>The facts were stated to be that the plaintiffs being owners of the steam-tug “Mary Davage,” took charge at Pittsburg of eight loaded barges of the defendant to tow them to Cairo. When near the Steubenville bridge, three of the barges were driven against a stone pier, one was sunk and two injured. The seven barges were delivered at Cairo.</p> <p>The defendant asked the court (Williams, J.) to charge:—</p> <p>1. That when the owner of a steam tug undertakes the business and employment of towing loaded coal boats or barges from Pitts-burg down the Ohio river to a distant market, and in such an undertaking is to have the exclusive possession and control of the tow, the owner of which is not to be present by himself or his agents throughout the trip, such owners will in such undertaking be liable as a common carrier, in the absence of any special agreement to the contrary.</p> <p>2. If this point be declined, then that in such case, if, in midday and on an open river, the tug should collide against the pier of a bridge and sink one of her barges in tow, not from any sudden unforeseen accident, or from any inevitable cause, but from the pilot’s having gradually lost the control of his boat and tow, under the usual and ordinary action of the wind and currents, the owners of the tug would be liable for the loss of the barge.</p> <p>3. Or if declined, then that the liability of the tug-boat owner in this case would be similar in extent to that of a common carrier under a bill of lading, with usual exception against the perils of navigation, which would not excuse a collision in open day with a well known obstruction, as the pier of a bridge, there having been no sudden or unforeseen act or violence of a nature which caused the collision.</p> <p>4. That when a steam-tug undertakes to tow a large fleet of loaded coal-boats down the Ohio river, as in this case, and just when arriving at the Steubenville bridge, well known as a dangerous place, where more than ordinary care and skill is requisite in management of the tow, the captain and one of the pilots go down to their dinner, leaving only one pilot and the mate on deck to manage the tow and carry it by the dangerous place, and the boat under the management or mismanagement of the pilot and mate, strikes one of the bridge piers and sinks one of her barges, the owners of the tug would be liable to the owner of the barge for its loss.</p> <p>5. If the court decline the charge as requested in the last point, then, that under the circumstances there detailed, the owners of the tug would be so liable, unless they show affirmatively and clearly that the accident arose from some sudden and unforeseen cause which human skill and foresight could not have provided against.</p> <p>6. That the facts in evidence are insufficient in law to excuse the plaintiffs for the loss of the barge.</p> <p>The court declined to charge as requested in the 1st, 4th and 6th points, and answered the others as follows:—</p> <p>“ 2. The court declines to affirm this point without qualification. If the pilot ‘gradually lost the control of his boat and tow,’ without any want of proper and reasonable care and skill on his part, then the owners of the tug would not be liable for the loss of the barge; but ‘ if the pilot’ gradually lost the control of his boat and tow ‘through any negligence or want of proper and reasonable care and skill on his part,’ then the owners of the tug would be liable for the loss of the barge, under the facts stated in the point.</p> <p>“ 3. The court declines to charge as requested in this point. Whether the loss of the barge was occasioned by the perils of the navigation or by the negligence, want of skill and care on the part of the pilot and crew of the tug, is a question of fact for the determination of the jury, and not a matter of law for the decision of .the court.</p> <p>“ 5. Omitting the words ‘ sudden and unforeseen’ before the word ‘ cause,’ the point is affirmed.”</p> <p>The verdict was for the plaintiffs for $2554.07.</p> <p>The defendant took a writ of error and assigned for error the answers to his points.</p>

<p>1. The declarations of a grantor after the grant cannot be received to affect the title of his grantee.</p> <p>2. If the grantee permits the grantor to remain in actual possession, the grantor’s declarations whilst in possession may be given in evidence: this is not extended to a constructive possession.-</p> <p>3. What a man in possession of land or goods says, is admissible to prove in what capacity he is there.</p> <p>4. The declaration of a tenant in common cannot be given in evidence to impeach the title of his fellow.</p> <p>5. The admission during his tenancy, by one under whom a plaintiff claims, affects such plaintiff only.</p> <p>6. Tenants in common have no community of title and interest which will make their declarations admissible against each other.</p> <p>7. One authorized to sell, but not in actual possession, is a mere broker, and not even constructively in possession: his declarations are not admissible to affect his principal.</p> <p>8. If there be even very slight evidence of complicity between a grantor and grantee to defraud creditors, the declarations of one, although after the grant, are admissible against the other.</p> <p>9. A price agreed on, or payment of anything, is not absolutely necessary to pass property, provided there is an adequate valuable consideration.</p> <p>10. A valid transfer may be made on credit or as a mortgage to secure an honest debt.</p> <p>11. Lyon and Mong owned lumber in partnership. Lyon sold his interest to Duff, and the lumber was marked “ Duff & Mong.” Lyon, as the agent of Mong, continued to take charge of his interest in the lumber. It was no error to leave to the jury the question of Duff’s exclusive possession.</p> <p>12. Duff could not have excluded Mong or his agent from the concurrent possession of the lumber.</p> <p>13. After the sale, Duff moved the lumber, marked as his and Mong’s, to his own mill. He thus gave all the notice of his title to an individual half that could be reasonably required.</p>

<p>1. The Allegheny, Monongahela and Ohio rivers are rivers naturally navigable, and have been classed with the Delaware and Susquehanna.</p> <p>2. The title of a riparian owner on the Allegheny (it being a navigable stream), since the reservation of islands under the Act of 1785, would not include an island opposite his land, but would extend only to ordinary low-water mark on his own side.</p> <p>3. Between high and low water mark, the title of the riparian owner is qualified, being subject to the right of navigation over it and improvement of the stream as a highway.</p> <p>4. Between high and low water mark, the riparian owner cannot occupy to the prejudice of navigation, nor place obstructions on the shore without express authority from the state.</p> <p>5. The Act of April 16th 1858, “ to establish high and low water lines in the Allegheny,” &e., is not applicable to disputed boundaries between private owners, but for regulating the respective rights of the public and landowners over whose property the right of navigation extends between high and low water marks.</p> <p>6. The wrongful diversion of the waters of a navigable river from its bed does not extinguish the title of the state nor add to that of individuals.</p>

<p>1. Objection to a leading interrogatory under a commission should be made before the commission issues.</p> <p>2. In trover for lumber, a witness testified that there had been a sudden rise in prices during the season; he might state what was the extent of the rise, and was not confined to the precise time of the conversion.</p> <p>3. Owners of lumber appointed an agent to sell it; another man told the agent he had authority to sell, and sold it; the agent could not ratify the sale so as to bind his principals.</p> <p>4. Shoup owned timber; Hill falsely asserting that he had authority, from Shoup, sold it to Baum; Shoup afterwards sold to Poor. Poor afterwards, under a belief that Hill had authority, made a settlement with Baum. Meld, that Poor was not estopped from asserting his title against Baum.</p> <p>5. A party cannot claim an estoppel arising out of his own or his agent’s misrepresentation or fraud.</p>

<p>1. If an agent obtain possession of property under an unauthorized condition, the principal must either return the property or hold it subject to the condition.</p> <p>2. Qui sentit commodum sentiré debet et onus.</p> <p>3. Where one adopts a contract entered into without his authority, he must adopt it altogether. He cannot ratify the beneficial part and reject the remainder.</p> <p>4. Where a servant sells a horse and, without authority, warrants him, the master receiving the price, though ignorant of the warranty, is bound by it.</p> <p>5. Where one of two innocent persons must suffer by the fraud or negligence of a third, whichever has accredited him must bear the loss.</p> <p>6. The holder of a note is responsible for representations made by a broker employed to sell it, though contrary to his instructions.</p> <p>7. A principal who sues to enforce a contract is bound by representations of his agent made to induce the opposite party to enter into it.</p> <p>8. A debtor cannot have the benefit of a compromise effected by his agent without adopting all the representations made by the agent whilst negotiating it.</p> <p>9. If an agent borrow money for his principal and procures another to become surety who pays the debt, the principal is answerable to the surety.</p>

<p>1. A decedent’s land was laid off in lots by a master, &o., in proceedings partition, and a street laid out and marked on a plan. Davis sold lots adjoining according to a plot which he exhibited at the sale, and which indicated that streets on which his lots were located opened on the street of his neighbor; the report of the master was afterwards set aside, and a new plan made, leaving a strip of six inches wide between the streets on Davis’s lots and the street on the neighbor’s land, and depriving the lots from access to that street. Held, that the purchasers of his lots had a good defence against bonds given for the purchase-money.</p> <p>2. The reservation of the six inches could not be disregarded under the maxim de minimis lex not curat. It is only when a matter is deemed utterly unimportant to carry out that this maxim applies.</p> <p>3. One citizen cannot disregard the lawful exercise of rights by another.</p> <p>4. An owner may dedicate his property to uses not unlawful, either public or private, and no change can be made except by lawful process or the assent of those for whom the dedication was made.</p>

This was an action of assumpsit by Marshall Short against Philip H. Stevenson, commenced July 18th 1867.

<p>Error to tbe Court of Common Pleas of Allegheny county: No. 8, to October and November Term 1869.</p> <p>In the court below, on the 30th of December 1867, John Kirk brought an action of debt against S. EL Hartman and James M. Bailey, partners as S. H. Iiartman & Co. The plaintiff resided in Chicago. He declared on an agreement under seal November 19th 1866 (which he set out totidem verbis), by which it was agreed that he should act as agent or salesman for stock of the Pittsburg and Connellsville Mining and Manufacturing Company, stone-coal and coke, &c.: the defendants to pay his expenses when out of Chicago, and “ $3000 in equal quarterly payments.” He averred that he entered upon the duties and continued to perform them till May 8th 1867, when the defendants, against his consent, discharged him; that he was at all times ready and willing to discharge his duties under the agreement; and further averred their liability to pay him three quarterly payments of $750 each, and $250 for travelling expenses. The declaration contained a general count for work and labor.</p> <p>The defendants pleaded, “ non est factum, never indebted, no partnership, want of consideration, failure of consideration, rescission of contract:” also, specially, that at and before the execution of the contract, the plaintiff falsely represented that he could sell the stock in a short time, and if he should fail in selling, his services should not cost the company anything, and by reason thereof the deféndants were induced to enter into the agreement.</p> <p>The plaintiff on the trial before Stowe, J., gave in evidence the agreement as follows — the signature “ S. H. Hartman & Co.” being admitted to be in the handwriting of S. H. Hartman :—</p> <p>“ Pittsburg, November 19th 1866.</p> <p>“ Memorandum of agreement made this day between John Kirk, of Chicago, Illinois, and S. H. Hartman & Co., of the city of Pittsburg, witnesseth as follows: The said Kirk agrees to act as agent or salesman for stock of the Pittsburg and Connellsville Mining and Manufacturing Company, stone coal and coke, and to travel, if said company should desire it, not to exceed four months in the year, and when out of Chicago the party of the second part to pay all travelling expenses, but when at home, in Chicago, to board himself; and for Kirk’s services we agree to pay him three thousand dollars in equal quarterly payments, and to allow Kirk the privilege of taking orders for other parties for goods not interfering with the interest of the said S. H. Hartman & Co.</p> <p>“ In witness whereof we have hereunto interchangeably set our hands and seals.</p> <p>John Kirk, [seal.]</p> <p>S. H. Hartman &_Co., [seal.]”</p> <p>Also, the following letters, under objection and exception s—</p> <p>“ Sherman House, Chicago, September 27 th 1866.</p> <p>“ John Kirk, Esq. Dear Sir: — Mr. Hartman and I called this A. m. on Hall, Kimbach & Co., to whom we had letters, and they very kindly consented to permit us to refer any of your citizens to them.</p> <p>“ Below you will find the names of some of our subscribers, who reside in our city.</p> <p>“W. E. Schmertz, &c.</p> <p>“ There are others, but they are probably not so well known or so easily referred to as the above. There is already subscribed in our city over $225,000. We leave with your son a subscription book, which you can use when obtaining subscriptions. We intend organizing the company the coming month, at which time the first instalment -will be called in and the balance will be called for as fast as it is required to be expended in the erection of the works. When we. called on Mr. Hall we found him too unwell to talk over the matter, but Mr. Hartman thinks that you will be able to sell H., K. & Co. some $40,000 or $50,000 of the stock.</p> <p>“ Hoping to hear from you soon,</p> <p>“ I remain, very truly yours,</p> <p>James M. Bailey.”</p> <p>“ Pittsburg, January 12th 1867.</p> <p>“ Mr. John Kirk: — Enclosed you will please find all the copies yet ready of the charter, and statement of P. & C. M. & M. Co. The statement may not be such as you wished for, and if not, please state what alterations or additions may be necessary. Our Mr. H. thought, from examining the one of Mr. Moore’s that you enclosed him, that the present one might answer. * * We will give the order for coal our best efforts, as far as fit, as well as quality is concerned. I think there is no doubt of its answering fully.</p> <p>“ We hope that you may succeed in inducing others to make the trial. Our steel company is in a flourishing condition; think will be able to organize next week. Send word where to send you the balance of the printed copies of charter and statement. Mr. H. says he hopes that you will keep stirring up the monkeys.’ “ Yours respectfully,</p> <p>SÍ H. Hartman & Co., by Bailey.”</p> <p>“ Pittsburg, March 16th 1867.</p> <p>“John Kirk, Esq. Dear Sir: — Your friend Mr. Bogle called on Mr. Bailey before I returned, and made arrangements to go to Connellsville with some of us. Yesterday he called on me, stating that he had difficulty in getting cars to ship his coal in, therefore he would have to put it off till next week. If he can spare the time to spend a few days in the coal region,-1 hope he will remain long enough to see what we have in that rich country. I am much pleased with him. Be good enough to let me know what he’s worth (and how he stands as a merchant).</p> <p>“ Yours truly,</p> <p>S. H. Hartman.”</p> <p>“No. 70 St. Johns Place, Chicago, March 25th 1867.</p> <p>“ Messrs. S. H. Hartman & Co. Gentlemen: — I am in receipt of your favor of the 2'lst inst. * * * I expect to leave in the morning for Milwaukee, and on my return leave for Saint Louis, stopping on my way thither at Joliet, &c. Whichever route do you think will be most advisable to take first ? I do not intend to stop until I go every place you think it advisable to go to.</p> <p>“ I am obliged to you for any suggestions you may make in the way of inducing merchants to subscribe. But the one you mention in your note of the 21st I have repeatedly made.</p> <p>“ I think it would be well for you to send me a complete list of all your stockholders, and the amount of stock subscribed by each, as it might be more satisfactory. Mr. Bailey wrote me that you had been very successful in getting stock taken lately. * * *</p> <p>“Yery respectfully, your friend,</p> <p>John Kirk.”</p> <p>“ Pittsburg, March 26th 1867.</p> <p>“ Friend Kirk. Dear Sir : — Your favor of the 25th inst. is received.</p> <p>“ I think you would do well to confine yourself to the large places, Chicago, Quincy, St. Louis, Alton, and not have more than one or two subscribers in each town, from twenty to thirty thousand dollars. I can see no objections to your selling coal and coke. Mr. Bailey has the subscription, and when he comes home I will call attention to it.</p> <p>“Very respectfully,</p> <p>S. H. Hartman.”</p> <p>“ Pittsburg, Pa., April 9th 1867.</p> <p>“ John Kirk, Esq. Dear Sir: — Yours of the 2d inst. has been received. We will reply to Mr. Ridgeley’s request as soon as we can arrange rates with the R. R. Co. After carefully considering the closing part of your letter, and taking the general tenor of your former ones, we have concluded that for the present you had better discontinue any further efforts to obtain subscriptions to the stock of the P. & C. M. & M. Co. Your entire want of success has convinced us that your remarks {that no human agency could convince the people of the real merits of the undertaking,’ is perfectly correct. We would, therefore, with your consent, prefer to close the contract with you for the present, and wait for a more favorable time for you to operate upon the feelings of the citizens of the West. Feeling certain that from your well known abilities, you could readily command a better salary from other parties, we feel satisfied that such a course would occasion you no inconvenience, and would rather be a relief from an unpleasant duty than otherwise. If this course meets with your approval, you will please send a detailed statement of your account, so that we can close it.</p> <p>“Yours respectfully,</p> <p>S. H. Hartman & Co.”</p> <p>(The foregoing is in the handwriting of Bailey.)</p> <p>“No. 70 St. Johns Place, Chicago, April 15th 1867.</p> <p>“ Messrs. S. H. Hartman & Co. Gentlemen * * * On reaching home, I received Mr. Bailey’s letter of the 9th inst., the reading of which amused me a good deal. Mr. B. writes a good letter, but he compliments me too highly. I am very sorry that I cannot consistently annul our contract until the year expires. You will recollect that I did not want to engage with you until you got your mill into operation, and had it not been for the promise of giving the western agency to me when the mill started, I should not have hired with you at all. But still, if I could get another situation equally as good, I should have no objections to accommodating you, but I do not like to run any risks. * * I have no idea of leaving you, unless I can better myself (with your consent) to work for another firm, until my year expires. * *</p> <p>“ Again, I understood that you were to open a coal and coke yard here in Chicago, that I was to attend to; but if you have concluded not to do so, if you can sub-let me to some other Pitts-burg coal firm, I will sell coal for them, but will hold on to you for my quarterly salary. Another thing, I have a house rented, that I will have to pay a year’s rent for, unless I can rent it when my time expires with you.</p> <p>“I am aware that the way things look now, business being so extremely dull in all departments, I have no idea that I could get anything to do. But still, I will look round, and see if anything can be done, and if a favorable opening offers, I will write you.</p> <p>“Very respectfully, your friend, John Kirk.”</p> <p>“No. 70 St. Johns Place, Chicago, April 29th 1867.</p> <p>“ Messrs. S. H. Hartman & Co. Gentlemen * * I regret that there should be any misunderstanding between us in relation to our contract, for it seems to me to be so plain (to use the language of one of the ancient prophets), that £ the wayfaring men, though fools, shall not err therein.’ I have nothing to add to the closing part of my letter to you of the 15th inst.</p> <p>“ I then stated to you that you might sub-let me to some other coal company. Perhaps you might make a satisfactory arrangement for me to do something for the Jones & Nimick Mf’g Co. to sell their goods, or with Lorenz & Wightman, to sell their glass.</p> <p>“ I have been looking round through the city here for something to do, but have not succeeded. One of the coal-yard owners said if business revived, he might, perhaps, have something for me to do. Yery truly, you friend,</p> <p>“John Kirk.”</p> <p>“ Pittsburg, May 8th 1857.</p> <p>“ John Kirk, Esq. Dear Sir : — Yours of April 29th was received. We regret very much that you still persist in treating the matter of our contract in the manner you do. All contracts are liable to different explanations and constructions, and we feel perfectly able to sustain our position, even (to use your language) to ‘ wayfaring men, though fools.’ Now we feel that the position you have taken is one that will neither bring profit to you, nor honor to any one who desires a reputation for honesty or fair dealing. We propose to close your engagement with us, simply because you have done us no service, and state in your letters that you cannot do us any. If you have not already understood from our' former letters that we did not wish you to attend to any business for us, we wish to state now that such is our desire, and we hope that you will make a note of it, so as to save you any further trouble or expense on our account. We wish to settle our matters in a spirit of fairness and justice, and if you feel inclined the same way, we don’t think there should be any trouble between us. If you desire us to try to make any arrangements with other parties to employ you, will do so with pleasure any time.</p> <p>“ Yours respectfully, S. H. Hartman & Co.</p> <p>Per B.”</p> <p>(The foregoing letter is in the handwriting of Bailey.)</p> <p>There were many other letters read, which it is not necessary to insert: all being admitted under objection and exception.</p> <p>The plaintiff gave in evidence also his account for travelling expenses, on which there appeared to be due him a balance of $21.09.</p> <p>He gave evidence of services under the contract.</p> <p>The plaintiff having closed, the defendants offered to prove by D. R. Davidson, conversations between the plaintiff and Hartman during the progress of the negotiation to show misrepresentations by the plaintiff which led to the contract being made, &c. The offer was admitted against the plaintiff’s objection, and the witness testified: “.Kirk said, ‘ I can sell all your stock without any trouble, but you must pay me well.’ This conversation was in November, but I cannot tell the time; they were talking about making the contract; they were talking about it all the time I was with them, a portion of two days; it was before the middle of November.” Defendants then offered to prove that “ in connection with the statement of plaintiff, that he could ‘ sell all your stock easily,’ the plaintiff stated that if he should fail in selling the stock, it should not cost the company anything.”</p> <p>The offer was objected to by the plaintiff, rejected by the court, and a bill of exceptions sealed.</p> <p>The defendants offered to prove that during the period of service between November 26th 1866, and May 8th 1867, a large trade was carried on, through agents, in stone-coal and coke between Pittsburg, Springfield, &c., and other places in the West, which, the plaintiff visited during that period, and charged expenses to the defendants therefor, to be followed by evidence that plaintiff sent orders during the whole period named for but six or eight car-loads of coke, being a very small amount compared with the actual sales effected through agents at those points: for the purpose of showing negligence and default on the part of the plaintiff, under his contract, and justifying his discharge. The offer was objected to, rejected, and a bill of exceptions sealed.</p> <p>The plaintiff submitted this point: — ■</p> <p>“ If Mr. Bailey induced plaintiff to believe that he was the partner of Hartman in this transaction, before the contract was made, he is now estopped from denying the partnership.” The court answered:—</p> <p>“ This we affirm, if you should find the facts to be so.”</p> <p>“ 1. The plaintiff having failed to prove a partnership, as averred, between .defendants, cannot recover in this action.</p> <p>“ 2. Under the pleadings and evidence in this cause, the plaintiff cannot recover.</p> <p>“ 3. It appearing from the evidence that the signature and seal to said agreement of the name ‘ S. II. Hartman & Co.,’ is in the handwriting of S. H. Hartman, one of the defendants, and the plaintiff not having proven that the same was executed in the presence of James M. Bailey, the other defendant, or that the said Bailey has subsequently ratified or accepted the same, the plaintiff cannot recover in this action.</p> <p>“ 6. The evidence offered by the plaintiff to prove partnership between these defendants cannot be used in argument, or be considered by the jury to establish a ratification or adoption of the sealed instrument, by the defendants not signing it.</p> <p>“ 7. The contract offered in evidence is not for any definite period of time, and the principals had the right to terminate it at any time, and to discharge the plaintiff from their service, without notice.</p> <p>“ 8. The sale of stock was a material part of the contract, and if plaintiff wrote to defendants that he had utterly failed to sell any of said stock, then such failure would warrant the defendants in discharging the plaintiff.</p> <p>“ 9. If the jury believed that the hiring was for an indefinite period of time, their verdict must be for the defendants.”</p> <p>The court denied the foregoing points from the 1st to the 8th inclusive, and in answer to the 9th said :—</p> <p>“ This is a matter for the court, and we instruct you as a matter of law that the contract was binding upon the parties for one year.”</p> <p>The jury found for the plaintiff $2480.87.</p> <p>The defendants took out a writ of error. Their specifications of error were:—</p> <p>1-7. The answers to their points.</p> <p>8. The answer to the plaintiff’s point.</p> <p>9. “ Admitting the letters offered by plaintiff below.”</p> <p>10. 11. Overruling the defendants’ offers of evidence.</p>

<p>Error to the District Court of Allegheny county: No. 13, to October and November Term 1869.</p> <p>This was an attachment execution, John II. Page against Elijah Heath, in which John Heath was garnishee; it was issued to November Term 1866 on a judgment obtained June 27th 1864, on the verdict of jury, by Page against Elijah Heath, for $7400, and was serv'ed on the garnishee September 24th 1866. Under this attachment the plaintiff claimed to have his execution satisfied out of purchase-money in the hands of John Heath of real estate which had belonged to Elijah Heath, which was conveyed through C. C. Gaskill to John Heath, who was Elijah’s son, without a valuable consideration and was afterwards sold by him and conveyed to Gibson A. Mundorf for $14,750. After this sale the plaintiff issued an execution; the land sold was levied on as the property of Elijah Heath and condemned, December 22d 1864. The plaintiff proceeded no further on this execution and it was pending at the issuing of the attachment. The defendant took a rule October 17th 1868 to show cause why the attachment should not be quashed; the rule was discharged October 19th.</p> <p>On the trial, November 11th 1868, before Hampton, P. J., the plaintiff gave in evidence a suit by him against Elijah Heath commenced July 2d 1862, his declaration being in assumpsit for usurious interest, the cause of action was laid as having arisen February 1st 1862, and judgment June 27th 1864 for $7400, (see 12 Wright 130); also deed dated April 29th 1862, Elijah Heath to O. C. Gaskill, the consideration named being $7000, for real estate in East Birmingham and St. Clair; deed May 26th 1862, O. C. Gaskill to John Heath for the same real estate, the consideration named beihg $8000; it was conceded that there was no valuable consideration for either of these conveyances. Also deed December 26th 1864, John Heath to Gibson A. Mundorf for the same real estate for $14,750; this sum was paid by Mundorf to John Heath. The plaintiff offered in evidence conveyances of other real estate made about the same time by Elijah Heath to Gaskill and by him to the wife of John Heath; and of Elijah Heath to John Heath, for the purpose of showing that Elijah Heath about that time was conveying his property to hinder, &c., his creditors. The admission of the evidence was objected to by the garnishee, admitted by the court and a bill of exceptions sealed. Plaintiff also offered in evidence a certificate from the clerk of the Circuit Court of the United States to show that a suit had been brought in the spring of 1862 by the United States against Elijah Heath as surety of John Hastings, collector of Pittsburg, which suit was pending on the 17th day of October 1868, to be followed by proof that the conveyance by E. Heath to Gaskill was to hinder, &c., the United States with other ereditors.f The evidence was objected to as not being the exemplification of the entire record, &c. The evidence was admitted and a bill of exceptions sealed. The plaintiff further offered to prove by W. 0. Hughart, who had charge of the plaintiff’s business in 1864, that he had made efforts about that time to find E. Heath or property from which to realize the judgment, that E. Heath had left the state, having parted with all his ostensible property, and witness had been unable to find his residence. The garnishee objected to the evidence; it was admitted and bill of exceptions sealed.</p> <p>The witness testified that E. Heath had lived in the county, had left it and gone away; witness did not know the time when. Plaintiff, under objection and exception, gave evidence of the value of the real estate conveyed by Elijah Heath to Gaskill and John Heath. . Also certain of the answers of Gaskill to interrogatories under a commission to take his testimony issued by the garnishees. Gaskill in his answers testified that in April or May 1862 Elijah Heath conveyed to him thirty town lots in the borough of Birmingham, and in May or June following, witness, at the request of Elijah Heath, conveyed these lots to John Heath; that Elijah Heath was at that time expecting to be sued by the United States as surety of John Hastings, collector of the port of Pittsburg; Elijah Heath then told him that as the loss had occurred by Hastings having been robbed, he thought it was unjust and he did not intend to pay it if he could help it; that he lived 800 miles from Elijah Heath, but was intimate with him; witness’s daughter was the wife of John Heath, and that Elijah, John and his wife, all lived together; witness’s arrangement to accept the deed and convey to John Heath was made at E. Heath’s house in Allegheny City; there was no mbney consideration. The plaintiff here rested.</p> <p>The garnishee then gave evidence for the purpose of showing the pecuniary ability of Elijah Heath to pay all his debts after the conveyance of the land to Gaskill and John Heath. He also read the deposition of Gaskill, in which he testified that he supposed John Heath did not know anything that had occurred between witness and Elijah Heath. On cross-examination witness said that Elijah Heath lived in the upper part of New Jersey; that he did not know whether John Heath knew of the intended suit against his, father; that John Heath never made any acknowledgment to witness for the deed; witness sent the deed to Mr. Keenan, at the request of Elijah Heath; witness at the time of the arrangement knew of no indebtedness of Elijah Heath to the plaintiff nor did he suspect any indebtedness of Elijah Heath.</p> <p>The garnishee then gave in evidence a fieri facias in the District Court, John H. Page against Elijah Heath on the judgment of $7400, issued October 17th 1864; levy on the lands conveyed to Graskill and by him to John Heath, being those in the inquisition and condemnation of December 22d 1864; also the declaration in the suit.</p> <p>The plaintiff s points were:—</p> <p>“ 1. If the jury believe the deed from Elijah Heath to Gas-kill was made and received with the intent to hinder, delay and defraud the United States government in the prosecution of its claims against Heath, as surety for John Hastings, on his official bond, such deed would be fraudulent and void as against all creditors of Heath, whose claims were then in existence.</p> <p>“ 2. The subsequent conveyance, by Gaskill to John Heath, without consideration, and in pursuance of the original fraudulent intent, would also be void as against such creditors.</p> <p>“ 3. The testimony of Gaskill, and all the attending circumstances, raise a strong presumption that John Heath was fully cognisant of the fraudulent intent with which the conveyance was made to him; but whether he was cognisant of the fraudulent intent or not, the conveyance to him being voluntary, he cannot hold either the land or the proceeds of its sale against the just claims of Elijah Heath’s creditors, in existence at the time.</p> <p>“ 4. An attachment in execution will hold, in the hands of a garnishee, the proceeds of the sale by him of real estate which has been conveyed to him by a debtor, without consideration, for the purpose of hindering, delaying and defrauding his creditors.</p> <p>“ 5. If the jury find that the remedy of the plaintiff is or was hindered or delayed by the existence of the voluntary deeds from Elijah Heath to Gaskill, and from Gaskill to John Heath, and that ¡plaintiff’s debt existed at the time said deeds were made— then such deeds would be fraudulent and void in law as to the plaintiff, whether Heath was or was not solvent at the time, and whether John Heath was or was not a participant in the actual fraudulent intent.</p> <p>“ 6. A conveyance, fraudulent and void as to one creditor, by the statute 13 Eliz., is fraudulent and void as to all creditors and others having legal cause of action, ex contractu, at the time of' such conveyance.</p> <p>“ 7. In order to sustain a voluntary deed against prior creditors, on the ground that the donor retained sufficient of his property to meet his present and anticipated liabilities, it must be shown that such property was ostensible, or such as the creditor could reach by the ordinary process of law, especially where the debtor had removed from tbe state before any of bis creditors could obtain judgment on their claims.</p> <p>“ 8. If tbe jury find tbe facts in this case to be as follows, viz.: that plaintiff’s original claim, for which be afterwards obtained judgment, was in existence at tbe time of tbe delivery of tbe deed from Elijah Heatb to Gaskill; that said deed was made and received without consideration, for tbe purpose of hindering, delaying and defrauding- tbe United States government in tbe prosecution of its claim against Heatb, as surety for John Hastings, on bis official bond; that Gaskill, in pursuance of tbe agreement with Heath, immediately thereafter conveyed tbe land, without consideration, to John Heath, who, within six months after plaintiff had obtained bis judgment against Elijah Heatb, sold tbe land to Gibson A. Mundorf, receiving, as the consideration thereof, tbe sum of $14,750, tbe plaintiff is entitled to recover, and as tbe foregoing facts are in evidence, uncontradicted, tbe verdict should be for tbe plaintiff.”</p> <p>Tbe defendant’s points were:—</p> <p>“ 1. To avoid a deed on tbe ground of fraud, it must be shown that both vendor and vendee participated in tbe fraud, or that tbe fraud of tbe vendor was known to tbe vendee, and in tbe absence of any such evidence, if tbe vendee should sell and convey tbe property to a third person, no creditor of tbe original vendor could have any claim upon the first vendee for tbe proceeds of such sale.</p> <p>“ 2. As tbe plaintiff in this case, at tbe time of tbe conveyance from Gaskill to John Heatb, was not a creditor of defendant, Elijah Heatb, either by record, suit, claim, demand, or notice of intended claim, be stands in tbe relation of a subsequent creditor, and unless it appears affirmatively that there was an intention to defraud him, be has no right to assail tbe deed.</p> <p>“ 8. Tbe mere fact of indebtedness at tbe time of a father’s making a voluntary deed to a son, does not render such conveyance fraudulent and void, if be bad other property at tbe time sufficient, beyond a doubt, to pay bis debts.</p> <p>“ 4. At common law, A has no attachable estate in land paid for by him, but conveyed to B in order to secure it from A’s creditors.</p> <p>“ 5. A mortgagee of land has no attachable interest therein before entry to foreclose, or a release from tbe mortgagor, and in analogy to this well recognised principle, an attachment cannot reach tbe proceeds of a sale of the land by tbe garnishee, John Heatb.</p> <p>“ 6. Tbe attaching creditor stands in tbe shoes of tbe defendant, and any equities that could have been set up against tbe latter, are equally available against tbe former.</p> <p>“ 7. The attaching creditor can acquire no claim against the garnishee superior to that of the debtor himself.</p> <p>“ 8. A grantee in a voluntary deed does not become a trustee for creditors, because as to them the conveyance is void, and the land liable to their execution; and therefore the attachment in this case does not lie.</p> <p>“ 9. A creditor, as such, has no right to challenge the validity of a voluntary deed. Until he has levied and sold the property, and become the sheriff’s vendee, he has no right of any kind to interfere with the land.</p> <p>“ 10. Under all the evidence' of this case, there is no liability on part of defendant to plaintiff, and the case, as presented by the facts as proven, does not fall within the provisions of the Attachment Law of 16th of June 1836, and the verdict should be for the defendant.</p> <p>“ 11. If John Heath had no knowledge of or participation in the alleged fraud, then having received the proceeds in good faith, he is entitled to hold them as against his father’s creditors, more especially if, as he alleges, his father had property more than sufficient to pay and satisfy the plaintiff’s judgment. If John Heath understood, when he received the deed, that it was a gift of the property to him, by his father-in-law, Charles C. Gaskill, and if he was wholly ignorant that it had been conveyed to Gaskill by his father, for the purpose of defrauding his creditors, he might sell, receive and retain the proceeds in good faith. If the land had remained in his possession, it might have been reached by the creditors of his father, under the statute of Elizabeth, even if he had not participated in the fraud, the conveyance being without consideration, but the proceeds of sale could not have been reached under that statute.</p> <p>“ 12. The plaintiff having, on the 17th of October 1864, levied upon the Birmingham property, whilst the same was in the possession of John Heath,- for this reason he cannot maintain this execution attachment.”</p> <p>The court affirmed the plaintiff’s points from the 1st to the 7th inclusive, and as to the 8th said, “ This point is sufficiently answered in the charge.”</p> <p>The defendant’s points were answered as follows:—</p> <p>“ 1. This point is sufficiently answered in the general charge.</p> <p>“ 2. The facts assumed in this point are not sustained by the evidence, and, therefore, the court declines to answer it in the affirmative. The declaration, in the case of Page v. E. Heath, is in assumpsit, and lays the claim as far back as the 1st of February 1862, a period prior to the date of the deed. The suit was brought the 2d day of July 1862, a little over two months after the date of the deed. The recovery was had on that declaration, and, therefore, it is to be presumed the claim extended back to a period prior at least to the date of the deed.</p> <p>“ 3. This point is affirmed in the general charge.</p> <p>“ 4 and 5. This proceeding is under our Act of Assembly, and not at common law. Without having time now to elaborate the question, whether the attachment in this case will lie, in case all the other questions should be decided in favor of the plaintiff, I will only say, at present, that I entertain no doubts on th'e subject. If the rule were that a man, in failing circumstances, might secretly and fraudulently convey all his property to a co-conspirator, for the purpose of cheating his creditors, and the next day, or the next hour, the grantee should convey the same to an innocent purchaser, for a full price, and then turn on the creditors, shake the money in their face and put- them at defiance, I should despair of ever seeing many just debts collected in this, or any other country. A rule of this kind would open such a door to fraud as would utterly destroy all credit among business men.</p> <p>“ 6, 7, 8 and 9. We answer these points in brief, that if all the other questions are found for the plaintiff, the attachment will lie, and the verdict should be for the plaintiff.</p> <p>“ 10. We decline to charge as requested, in this point, but submit all the evidence to the jury, under the instructions contained in the general charge, and in our answers to the points.”</p> <p>Judge Hampton, after recapitulating the evidence, &c., charged: * * *</p> <p>“ From these various allegations, the following positions of the parties, respectively, may be stated, viz.: The plaintiff’s counsel contends:</p> <p>“ 1st. That under the Statute of Elizabeth, for the prevention of frauds and perjuries, the deeds from Heath to Gaskill, and from him to John Heath, for the Birmingham property, are fraudulent and void as to the present plaintiff, because they were made by collusion with Gaskill and John Heath, with the fraudulent intent to hinder and delay the United States government and the plaintiff in the collection of their just claims.</p> <p>“ 2d. That, if they were not made; with such fraudulent design, they are, nevertheless, void as to the creditors of Elijah Heath, because they were made for a nominal, and without a valuable consideration, and that Elijah Heath, the grantor, not retaining sufficient ostensible property in his hands to pay his just debts, they were not good and valid as voluntary conveyances; and, therefore, the plaintiff has a right to attach in the hands of John Heath, the money received from Mundorf, or so much thereof as may be necessary to satisfy his judgment.</p> <p>• “ The defendant’s counsel contend that the deed by Elijah Heath to Gaskill, and that by him to John Heath, were not fraudulent nor void as to the plaintiff, and that he is not entitled to have attachment in execution of the money received by him from Mundorf for the following reasons:</p> <p>“1st. They deny that the conveyances were, or that they could have been, made for the purpose of hindering, delaying, or defrauding creditors of Elijah Heath; because, as they allege, the United States was not a creditor of and had no just claim on Elijah Heath, as the surety of John Hastings; and, because Elijah Heath, when he made the conveyance, was not aware of the claim of the plaintiff, and did not anticipate the bringing of any suit against him for the cause of action upon which the recovery was had.</p> <p>“ 2d. They deny that John Heath had any notice or knowledge of the alleged fraudulent intent of Elijah Heath and Charles C. Graskill, in making the conveyance of the East Birmingham property to him, but allege that he received the deed as a gift from his father, in good faith, and that he sold and conveyed the same, in good faith, to Mundorf, without any notice or knowledge of the alleged fraudulent intent on the part of the grantors; and, therefore, he is not liable to the plaintiff, or any one else, for the proceeds of the sale.</p> <p>“ 3d. They deny that the conveyances, if voluntary, were void as to creditors; because, as they allege, the.grantor retained in his hands a large amount of property and moneys, more than sufficient to meet and satisfy all his just debts and liabilities.</p> <p>“1st. Was the deed of Elijah Heath to Graskill, for the Birmingham property, and of Gaskill to John Heath, void as to the creditors of Elijah Heath? If it was made by collusion between the parties, with intent to hinder, delay or defraud the creditors of Elijah Heath, or any one of them, then said conveyance was fraudulent and void as to the said creditors, and did not pass any title to John Heath as against them. The intention with which this deed was made is a question of fact for your determination from all the evidence in the cause. If John Hastings, as has been contended, was not indebted to the United States, as collector for the port of Pittsburg, and if Elijah Heath was not liable, as his surety, it does not follow that the conveyance was not for the purpose of hindering and delaying the United States. If Elijah Heath supposed or believed that he was liable to the United States as one of the sureties of Hastings, and if he made the deed for the purpose and with the intent of defrauding the United States in the collection of the apprehended claim, and if John Heath, when he received this deed, was .aware of such purpose and design, then that conveyance was fraudulent and void as to his creditors, although, in point of fact, he may not have been "liable to the United States on Hastings’ bond. And the plaintiff is entitled to avail himself of the fraud, in order to obtain satisfaction of his judgment out of the money now in the hands of John Heath, although Elijah Heath may not, at the time, have intended to hinder, delay or defraud John H. Page, the present plaintiff.</p> <p>“ In brief, it is clearly proved by the deposition of Charles C. Gaskill, read by both parties, and, of course, he is to be believed, that there was a combination between Elijah Heath and Charles C. Gaskill, to defraud the government of the United States, by the deed made by Heath to him, so that the only question for you to determine is, did John Heath know of that fraudulent intention, and did he, in furtherance of that design, receive the deed ? If you are satisfied that he did, you need not trouble yourself about any other questions in the cause; the plaintiff will be entitled to recover in this proceeding, and your verdict will be in his favor.</p> <p>“ In determining this question, you will take into consideration the relation and situation of the parties, as they are disclosed by the evidence, and draw your own conclusions as to whether or not John Heath knew all about this transaction. And, as I said before, if hé did, and participated in it by accepting the deed, you need not trouble yourselves about anything else in the case; your ■ verdict will be for the plaintiff for the amount of his judgment.</p> <p>“ Rut if you should find that he did not know and take part in this fraudulent transaction, you will next inquire whether Elijah Heath, after conveying away all the property covered by the various deeds in evidence, had an amount left abundantly sufficient to pay his just debts, including the judgment of the plaintiff, and was the property so situated, and of such a character as could readily be found, and made available for the payment of his debts? It is conceded that John Heath has in his possession $14,750, the proceeds of the Birmingham property, conveyed through Gaskill to him, for which he never paid a dollar to his father, while the present plaintiff, John H. Page, has had a judgment in this court against his father, ever since June 1864, for $7400, and although diligent search has been made, as testified to by Hughart, to find property on which to levy in satisfaction of said judgment, no property can be found, notwithstanding Elijah Heath is supposed to be rich. But no witness has testified to any particular piece of property owned by him, anywhere. Now the rule of law is well settled, that a father may make a gift of land, or other property, to a child, if it be not done to hinder, delay or defraud creditors; provided, he has other ostensible property, amply sufficient to satisfy all his just debts. But that property must be such, and so situated, that it can be reached by his creditors without great trouble and extraordinary efforts. But a creditor is not bound to follow a debtor to- England, or California, or to any other state, in order to search for property on which to levy in satisfaction of his claim, if the debtor had an abundance in this state to pay all his debts, and when about to be pushed makes a gift of it to his son, and then leaves the country, This would be unjust and unreasonable. Rather let the creditor’s just claims be first satisfied out of the property within their reach, and let the son receive the father’s beneficence elsewhere.</p> <p>“ You will apply this rule of law to the present case, according to the testimony of Mr. Hughart, which is uncontradicted. No property of Elijah Heath was found anywhere, after the most diligent search and inquiry. True, it is said by Gaskill, that he believed him to be worth some sixty thousand dollars, after all the conveyances were made. But whether in real or personal estate, or where situated, he does not say. This kind of evidence fails entirely to satisfy my mind, that Elijah Heath'has enough property anywhere to pay and satisfy his debts, besides the property conveyed by the deeds in evidence. But whether this be so or not, you must deduce from all the evidence before you, and if you find that he has not sufficient property, which can be reached by legal process, then your verdict will be for the plaintiff for the amount of his judgment, with interest and costs.</p> <p>“ But another question is raised by the 3d, 4th, and 6th points presented by the plaintiff’s counsel, and that is, even although John Heath was not cognisant of, and did not participate in, the fraudulent arrangement entered into between Elijah Heath and Charles C. Gaskill, and although Elijah Heath had property besides that conveyed, sufficient to pay all his debts, yet if he made the deed for this Birmingham property, without receiving any valuable consideration therefor, for the purpose of hindering, delaying or defrauding his creditors, and if such conveyance did hinder or delay the collection of the plaintiff’s claim, in either case the conveyance would be fraudulent and void, and the plaintiff would be entitled to recover.</p> <p>“ Now, as we have before instructed you, in order to avoid the deed on the ground of actual fraud, it was necessary that John Heath should have known of the fraudulent intent of his father, and assented thereto by accepting the conveyance. But if he had no such knowledge or notice, and had paid a valuable, that is, a full and fair money consideration for the land, he would be protected, -because he had honestly and innocently purchased and paid full value, without any fault on his part. And in such a case equity would come in to protect him. But I apprehend the rule, would be different when the vendee is a mere volunteer, who has no equity to be protected. He is the innocent recipient, it is true, of the legal title, but he has paid nothing for it, and the conveyance was made with a fraudulent intent on the part of the grantor, and that conveyance, so made, actually did hinder, delay and prevent the honest creditor from collecting his just claim. In such a case the equities are all on the side of the honest creditor, whose interests must be protected, while the grantee, who has no equitable interest, must be postponed.</p> <p>“ If this rule be correct, and I believe it is, as at present advised, without sufficient time to examine it thoroughly, it must, without reference to the other questions heretofore discussed, decide this case in favor of the plaintiff. And we now instruct you that, if Elijah Heath conveyed this land to Gaskill, and he to John Heath without any pecuniary consideration being paid, for the purpose, and with the intent to hinder, delay and defraud his creditors, and if such conveyance did hinder and delay the plaintiff in the collection of his judgment, then the plaintiff is entitled to your verdict.</p> <p>“ The amount of the foregoing ruling is as follows:—</p> <p>“1st. If John Heath knew, or ought to have known, of the intended fraud concocted between his father and Gaskill, when the deed was received by him, then the plaintiff is entitled to your verdict.</p> <p>“ 2d. If Elijah Heath made the deed to Gaskill, and he to John Heath, as a gift from his father, and if he did not own other ostensible property which could be reached by the use of reasonable exertions, sufficient to pay the plaintiff’s judgment, then the plaintiff is entitled to recover. Rut if he owned other property sufficient to pay the plaintiff’s claim, which could be reached by the usual and ordinary course of legal proceedings, then so far as this branch of the case is concerned, the plaintiff would not be entitled to recover.</p> <p>“ 8d. If the deed was made from Elijah Heath to his son John, through Gaskill, without any pecuniary consideration, for the purpose of hindering, delaying and defrauding his creditors, and if such conveyance did hinder, delay or prevent the plaintiff from obtaining satisfaction of his claim, then the plaintiff is entitled to your verdict, whether John Heath knew of his father’s intention or not.”</p> <p>The verdict was for the plaintiff for $9346, and that the garnishee had in his hands sufficient to satisfy the same.</p> <p>The garnishee took- a writ of error. The first four assignments of error related to the rulings as to evidence; the 20th was that the court did not quash the attachment execution; the remainder related to the answers to the points and to the charge.</p>

<p>Error to the Court of Common Pleas of Allegheny county: No. 165, to October and November Term 1865.</p> <p>This was an action of debt brought, January 29th 1867, by The County of Allegheny against The Pittsburg and Connellsville Railroad Company.</p> <p>The plaintiff in the declaration demanded the sum of $1,000,000 which the defendants owed and detained, &c.</p> <p>The first count was that on the 29th of June 1858, in consideration that the plaintiff would subscribe for 15,000 shares of the stock of the defendants and pay $750,000 for it in bonds of the plaintiff bearing interest, payable semi-annually, and falling due in thirty years, the defendants agreed to pay to the holders of the bonds the interest as it fell -due, that the plaintiff subscribed for the 15,000 shares of stock and delivered the bonds of the plaintiff to the amount of $750,000 with interest coupons attached, payable semi-annually at the 'rate of 6 per cent, per annum, that the defendant sold the bonds to third persons and provided for the payment of the interest, but that on January 1st 1858 and since they have refused to pay the interest, and by reason of such refusal, the plaintiff became liable and has since been compelled to pay to the holders of the bonds sums of money amounting in the aggregate to $1,000,000, and plaintiff has sustained damage to the amount of $1,000,000, “by reason of which an action has accrued to the plaintiff to demand and have from the defendants the said sum of $1,000,000,” but the defendants have refused to pay; to the damage of the plaintiff $1,000,000, &c.</p> <p>The second count was, that on the same day, in consideration of a subscription by the plaintiff for 15,000 shares of the defendants’ stock, and of bonds of the plaintiff “ then and there delivered to the defendants as payment for said stock,” the defendants agreed to furnish funds and pay all interest “ semi-annually, falling due on said bonds, and agreed fully to indemnify the plaintiff against any and all sums of money falling due as interest on said obligations, and to keep the said county harmless in that regard;” that the defendants had not paid interest since July 1st 1858, and by reason thereof the plaintiff has been compelled to pay to the holders of the bonds $1,000,000, “ by reason of which said promises the plaintiff hath suffered damage to the amount of $1,000,000, and thereby an action hath accrued to the plaintiff to demand and have of and from defendant the said sum of $1,000,000,” &c. There was a count for money paid and one on an account stated.</p> <p>The defendants were incorporated ■ by an act passed April 3d 1837, and authorized to build a railroad from Pittsburg to Connellsville. By the 15th section of the Act, the directors were authorized to declare semi-annual dividends of the profits, the dividends at no time to exceed “ the net profits actually acquired by the company.” By the 6th section of an Act of April 18th 1843, the counties of Allegheny and others and any city, borough or incorporated company were authorized to subscribe to the stock of the company “ as fully as any individual could do;” and by the 7th section the company were empowered to extend their railroad beyond Connellsville to Smithfield or any other point on the waters of the Youghiogheny within the Commonwealth. By the 1st section of an Act of April 12th 1853 the cities of Pittsburg and Allegheny and the boroughs of West Newton and Connellsville were authorized to subscribe for shares, to borrow money and issues certificates of loan with interest which might be received by the company in payment of instalments on the shares on such terms as shall be agreed upon between the company and “ said corporations.” By the 2d section the company was authorized to pay to the shareholders interest at the rate of 6 per cent, per annum on all instalments paid, the interest to be charged to the cost of construction, and until a dividend should be declared all the profits and earnings of the road should be credited to the cost of construction. By the 5th section of an Act of April 18th 1853 the counties theretofore authorized to subscribe for stock might borrow money to pay for their subscriptions and the bonds to be issued with interest at 6 per cent, per annum might be received as cash by the company in payment of instalments. The 6th section authorized the company to extend their road to any point in Somerset and Bedford counties to form a connection with the Chambersburg and Allegheny Railroad or any other road that may be constructed. On the 17th of May 1853 the commissioners of Allegheny county resolved that they would subscribe on behalf of the county for 15,000 shares of the stock of the Pittsburg and Connellsville Railroad Oo. amounting to $750,000, payable in the bonds of the company 30 years after date, with interest at 6 per cent, per annum, payable semi-annually, on the following terms, amongst others: that the company issue certificates of stock as may be required by the county commissioners bearing interest for thirty years at 6 per cent, per annum, payable semi-annually at the same times and places with the interest on the bonds; that the company pledge to Allegheny county the stock of the company and all their real and personal estate for the payment of interest on the stock to be issued to the county during the thirty years, and pay the interest on the certificates to the holders of the county bonds at the same times and places with the payment of the interest on the bonds; that the company will pay to the county the excess of dividends over the interest on the bonds; that the company pay all taxes on the bonds and stock, &c. This proposition was made under the corporate seal of the county. On the 8th of June 1853, at a meeting of the stockholders of the company, the Acts of April 12th and 18th 1853 were accepted by an unanimous vote. The proposition of the county of Allegheny also was accepted on the terms accompanying it, and the president and directors were authorized to receive the subscription of the county for 15,000 shares of stock, to receive as cash the bonds of the company in payment, to issue certificates of stock to the county for its subscription “bearing interest at the rate of 6 per cent.,” the payment of the interest to be made at the same places and times as the payment of the interest on the bonds; the stockholders also pledged the stock of the company, their road and all their real and personal property for the faithful payment of the semiannual interest on the stock issued to the county, the dates of the certificates to correspond with the dates of the bonds; the president and directors were instructed to give the pledge in the certificate or in any other legal manner that might be required by the county. At a meeting of the board of directors of the company, held June 28th 1853, they approved and ratified the action of the stockholders and directed the president and treasurer to issue certificates of stock to Allegheny county in accordance with the resolutions of the stockholders.</p> <p>The certificates of stock recited the proposal of the county to subscribe for 15,000 shares of stock and to pay for them in county bonds, &c., its acceptance by the stockholders, with the pledge, &c., and the resolution of the directors; they pledged the property of the company for the performance of the conditions, and certified that the county had paid “ $50 per share in full, and is entitled to 15,000 shares of the capital stock of the Pittsburg and Connellsville Railroad Company, amounting to the sum of $750,000, the said railroad company hereby agreeing to pay interest at 6 per cent, per annum on the last aforesaid sum, for the term of thirty years from the date hereof, semi-annually on the first days of July and January, in the city of New York, by applying the same to the payment of the semi-annual interest coming due on the bonds so issued by the county aforesaid and payable the same days to the holders of the said bondswith a further stipulation that the excess of dividends over the interest should be paid to the county in accordance with the terms of the proposal. The certificate was under the seal of the company. The bonds were with coupons and in the usual form, to the company or bearer, the interest payable at the office of Winslow, Lanier & Co., New York, on the first days of January and July, and recited that they were issued under the authority of Acts of 1843 and 1853.</p> <p>The following is the form of the assignment and guaranty of the bonds of the company:</p> <p>“ Eor value received, the Pittsburg and Connellsville Railroad Company assigns the within bond to--, or bearer, and guaranties the payment of the principal and interest of the same, as within stipulated.</p> <p>By order of the Board of Directors of said Railroad Company.</p> <p>[Seal of Co.] Wm. Larimer, Jr., President.”</p> <p>Stock and bonds to the amount of $750,000 were issued by the company and the county respectively according to the proposal of the county. There was evidence that in the whole about $300,000 —interest on bonds and on coupons from January 1st 1858 to January 1st 1867, both inclusive — had been paid by the plaintiff in cash or other bonds to the holders of the original bonds — that there wrnre no net earnings from which to declare dividends, and that the road was open and running between Pittsburg and Connellsville in October 1861.</p> <p>The defendants gave evidence that in February 1861, the 15,000 shares of stock of the plaintiff were sold by the United States marshal, under a judgment recovered in the Circuit Court of the United States; they were bought for the Baltimore and Ohio Railroad Company and transferred to them on the 13th of February ; and that the defendants had commenced as early as 1856 and were now constructing under authority of different Acts of Assembly portions of the road beyond Connellsville. There was evidence also tending to show the inability of the company to pay interest; that the sale of the plaintiff’s bonds by the defendants was prevented by their repudiation of them, &c.</p> <p>The defendants submitted a great number of points, all which but one (not necessary to be noticed) were refused.</p> <p>The court (Mellon, J.) directed the jury to find in favor of the plaintiff for the full amount of all payments made by the county, whether in cash or in bonds, and whether for coupons matured before or after the marshal’s sale of stock, with interest to date of verdict.</p> <p>The verdict was for the plaintiff for $290,697.02.</p> <p>The defendants moved in arrest of judgment for the following reasons:—</p> <p>“ 1. That the action of debt does not lie for the cause of action set forth therein.</p> <p>“ 2. That the facts averred therein do not set forth a good cause of action.</p> <p>“ 3. On the whole declaration for a misjoinder of counts, — in that the first and second counts (especially the second) sound in damages, and substantially are counts in assumpsit, whereas the last two counts are in debt.”</p> <p>The motion was overruled and judgment entered on the verdict.</p> <p>The defendants took out a writ of error. The main points raised by the assignments of error, in addition to the points presented by the reasons for arrest of judgment, were the following:</p> <p>“ 1. That the testimony did not sustain the material allegations of the narr. in this, that the contract as proved varied substantially from that declared on.</p> <p>“ 2. That the contract, both as declared on and as proved, was invalid, as being without consideration, against public policy, in violation of the company’s charter, and in evasion of the Act authorizing the county’s subscription.</p> <p>“3. But even if the company’s agreement to pay interest on the stock was valid and binding, yet the marshal’s sale of the stock carried to the vendee, not only the interest accruing subsequently to such sale, but also that which had accrued and then remained unpaid.</p> <p>“ 4. But if the marshal’s sale did not carry the then accrued and unpaid interest, then such interest, being separated from its principal by the sale, would be barred by a failure to sue for it in six years.”</p>

<p>1. Bishop made a deed to King in Ohio, which was acknowledged before a commissioner December 9th 1848. Rultz recovered judgment against Bishop December 26th 1848, under which the land conveyed was sold April 28th 1849, sheriff’s deed acknowledged to Hultz July 23d and registered. King’s deed was recorded September 8th 1849. Meld, that the acknowledgment before a commissioner was sufficient to protect King, his deed having been recorded within twelve months.</p> <p>2. The Recording Acts of March 18th 1775, March 23d 1819 and April 14th 1828, relating to deeds made out of the state, are in pari materia,, and are subject to the limitation in the 2d section of the Act of 1775.</p> <p>3. A sheriff’s vendee is a purchaser for a valuable consideration within the recording acts, and is protected by them.</p> <p>4. A commissioner’s certificate is prim® facie evidence of the execution and acknowledgment of a deed, and, unless there be evidence to impeach its genuineness, it should not be left to the jury to determine whether it was executed and acknowledged at the time and place it purported to be.</p>

<p>1. A corporation can act only through its officers and agents, and the officer having charge of its business for practical purposes must be regarded as the corporation.</p> <p>2. The duty and liability of a corporation to its servants is the same as that of natural persons.</p> <p>3. Employers owe to their servants and workmen the exercise of reason-ab]e oare ai1^ Pl'°Per diligence in providing them with safe machinery and suh<able tools, and employing with them fit and competent superintendents and fellow-workmen.</p> <p>4. If a person employs mechanics or contractors in an independent business, and they are .of good character and there was no want of care in choosing them, he is not liable for injuries to others from their negligence or want of skill.</p> <p>5. If one employs a reputable machinist to construct a steam-engine and it blows up from bad materials or unskilful work, the employer is not responsible for injury to his own servant or to a third person.</p> <p>6. The rule is different if the machine is made according to the employer’s own plan, or he interferes and gives directions as to its manner of construction.</p> <p>7. There is no difference between liability to a stranger and to a servant for a man’s own negligence or want of skill.</p> <p>8. A master is not responsible for an injury to a servant by the negligence of a fellow-servant unless he has failed in ordinary care in the employment of the culpable party.</p> <p>9. What is due care and ordinary diligence depends much on the kind of business and the sort of material handled.</p> <p>10. The competency of a person to give his opinion as an expert, if on á preliminary examination he appears to have any pretensions to speak as such, rests much in the discretion of the judge trying the cause.</p> <p>11. It is not imperatively required that the business or profession of the witness should be that which would enable him to form an opinion.</p>

37, to October and November Term 1869. This was an action of assumpsit brought to July Term 1868 by Ithamar D. Risher and Joseph Wilson, partners as Risher & Wilson, against Nicholas J. Bigley. The plaintiffs declared in all the common counts. Their claim was for a boat and cargo of coal. The boat was lying at the plaintiffs’ works on the Monongahela river; and remained in the possession of the plaintiffs.

<p>1. The onus of showing error is upon the plaintiff in error.</p> <p>2. The error must be manifest; and is not to be made out by averment or conjecture.</p> <p>3. If the rulings of the court below relate to facts, the plaintiff in error must furnish the evidence, or so much as is necessary to make the exceptions intelligible.</p> <p>4. Whether a witness is an expert qualified to pronounce an opinion is mainly in the discretion of the court below. The Supreme Court will not reverse unless in a clear and strong case.</p> <p>5. Trustees of charitable and religious societies having no personal or private interest in the property held by the corporation, are competent witnesses in any action in which the corporation is a party.</p>

<p>1. A company leased a leaking oil-tank, made with iron sides and wooden bottom, the lessee agreeing, in lien of rent, to put it “ in perfectly good repair.” This did not require more than putting it in as good condition as it could be made with a wooden bottom.</p> <p>2. “ Repair” means to restore to its former condition, not to change either the form or material.</p> <p>3. Evidence of declarations of the president of the company that the cost of repair would not exceed $500 was admissible for the purpose of showing that the parties did not intend an iron bottom, which would cost several thousand dollars.</p> <p>4. Evidence that the president was present whilst the repairs were going on, and expressed his satisfaction with them, was admissible.</p> <p>5. Evidence of the amount expended in making the repairs was admissible as pertinent to the question of the breach of contract and as to damages.</p>

70, to October and November Term 1869. This was a qui tam action by E. Kauffield against William J. Gibson, a licensed pedlar, to recover the penalty imposed by 2d section of the Act of March 28th, 1799, 3 Sm. L. 360, Purd. 784, pi. 7.

84, to October and November Term 1869. This was an action of ejectment commenced April 26th 1867, by George W. Wilde against Rudolph Drusadow and Sarah E. Drusadow, his wife, James Trainor and William Spears — Trainor and Spears being tenants of the other defendants. C. Hanson Lowe, assignee of Wilde, was afterwards added as plaintiff. The land in controversy was a lot in the borough of Manchester, now Allegheny City.

88, to October and November Term 1869. This was an action on the case for malicious prosecution and false imprisonment, commenced August 27th 1867, by Anthony Weidman against Ludwig Schmidt, Michael Berger and Jeremiah Gumbert. A nolle prosequi was afterwards entered by the plaintiff as to Gumbert. The plaintiff was a practising attorney in Pittsburg. Some time in the early part of 1867 Schmidt, one of the defendants, was indebted to Berger, the other defendant.

<p>1. Each court is the best judge of its own rules, and the Supreme Court will not reverse for a construction of them which is not palpably erroneous.</p> <p>2. A rule of court provided that when a plaintiff filed with his praecipe an 'affidavit stating the amount due, he should be entitled to judgment, “unless the defendant file'an affidavit of defence,”-which “shall state whether the defence is to the whole or part of the claim, and if to a part, it shall state to how much of the claim it extends.” Held, that under an affidavit of defence to part of a claim and tendering judgment for the balance, the plaintiff might take judgment for the part admitted and go to trial for the remainder.</p> <p>3. A judgment is not necessarily final so long as there remains any question'Of 'law or‘fact .to be determined. Per Hampton, P. J.</p>

In Equity. Of October and November Term 1869. In the estate of John M. Porter, deceased.

118, to October and November Term 1869. This was an action of assumpsit by James W. Kennedy against William J. Kountz to January Term 1868. The claim was by tbe plaintiff, as bolder, against tbe defendant as endorser of a note for $750, drawn by John P. Hunt, in favor of the defendant and by him endorsed. On tbe trial tbe plaintiff gave in evidence tbe note, with protest, as follows:— “ $750.00. Pittsburg, May 24th 1866.

218, to October and November Term 1869. This was a scire facias on a mechanics’ lien, issued February 2d 1869, by F. K. Duff and John Ewing, partners as Duff & Ewing, against M. S. Hoffman, owner, and Edward Boland, contractor. The claim was for shingles to the amount of $82, furnished by the plaintiffs for a house belonging to Hoffman.

<p>Appeal from the decree of the Court of Common Pleas of Allegheny county: In Equity: No. 176, to October and November Term 1869.</p> <p>To September Term 1868 of the Court of Common Pleas, Adam Forsythe filed a bill in equity against Andrew Taylor. The bill set out:—</p> <p>1. On and before the 19th of March 1868, Hamilton Whigham owned a two-third interest in a portable saw-mill, and Andrew Taylor the other third, which they were running together for their joint profit.</p> <p>2. The plaintiff on the 18th of August 1868, bought the interest of Whigham in the mill at sheriff’s sale on judgments obtained March 19th 1868.</p> <p>8. After receiving a bill of sale from the sheriff, the plaintiff proceeded to the mill to take possession and make arrangements for running it, but was met by the defendant Taylor and others in his employ, who resisted him and refused to recognise his right to the mill, or to the profits from running it.</p> <p>4 and 5. The defendant Taylor continues to run and use the mill and lumber furnished to it and on hand, and refuses to account to the plaintiff for the profits or to recognise his right to the mill, and if he so continues, great and irreparable damage will be done to the plaintiff.</p> <p>The prayers were that Taylor might be restrained by special injunction from using and running the mill and working up the lumber and selling any part of it, and that a receiver be appointed to take charge of the mill, &c., dispose of the same, settle the accounts, &c.: And for further relief.</p> <p>Taylor answered:—</p> <p>1. Admitting that'on the 19th of March 1868, Hamilton Whig-ham owned a two-thirds interest in the mill, but that the defendant owned but one-sixth, and Robert Taylor owned the other sixth, and they were running it for their joint profit.</p> <p>2. Taylor the defendant was informed that Hamilton Whigham sold his interest in the mill to his son, William Whigham, the other defendant, on the 1st of April 1868; William has been admitted by Taylor to be owner of the two-thirds.</p> <p>3. Taylor admitted the sheriff’s sale, but was ignorant whether any title passed to the plaintiff, but supposed that none did in consequence of the sale to William, notice of William’s ownership was given at the sheriff’s sale.</p> <p>4 and 5. Taylor admitted that he denied and continued to deny that the plaintiff had any right to the possession of the mill. By articles of copartnership of the 18th of March 1868, Taylor was to be the general business agent and superintendent; about three weeks before filing tbe bill, he had informed the plaintiff that he would pay over none of the profit to the plaintiff, or William for Hamilton’s share until the question as to who was entitled should be settled, and he desires these rights to be determined, so that he may account to the proper party as he always has been and still is willing to do; and denied there would be any danger to plaintiff by his continuing to run the mill.</p> <p>He prayed the court to compel the plaintiff and William to settle their respective rights.</p> <p>William Whigham was permitted by the court to interplead, and answered:—</p> <p>1. Admitting the first paragraph of the hill, except averring that Andrew Taylor owned one sixth, and Robert Taylor owned one sixth.</p> <p>2. He purchased Hamilton Whigham’s right on the 1st of April 1868, without any knowledge of the judgments under which it is alleged to have been sold, and does not recognise any right in the plaintiff by virtue of the sheriff’s sale.</p> <p>2. He admitted that plaintiff was ordered from the premises because he had no right there.</p> <p>4 and 5. He admitted that Taylor continued to run the mill for the owners;, denied that the plaintiff had any interest in the mill, and for that reason would not suffer irreparable damage.</p> <p>He further averred that he purchased Hamilton Whigham’s interest in the mill, &c., paying $1200 for it in good faith without fraud on his part or Hamilton’s; that he believes Hamilton paid the money received from him towards the discharge of his indebtedness; William took possession of the mill on the 1st of April 1868, in accordance with the purchase; Taylor ran the mill from that time for the benefit of the owners, of whom he (William) was one, and since that time Hamilton had nothing further to do with it, except that he was employed to work there.</p> <p>Thomas C. Lazear, Esq., was appointed master.</p> <p>He - reported that on the 18th of March, Hamilton Whigham purchased two-thirds interest in a portable saw-mill, for part of the purchase-money of which he gave to the vendors his judgment-notes, payable June Í5, on which judgments were entered on the 19th. The remainder of the interest was in Andrew Taylor and Robert Taylor in equal sixth- parts and a partnership was formed between the owners under the name of Whigham, Taylor & Co.: Andrew Taylor being appointed by the agreement of partnership “ the general agent and superintendent of the business of the mill,” and he has so continued. On the 1st of April 1868, William Whigham, a son of Hamilton, bought bond, fide his father’s interest in the mill, &c., for $1200, its full value, and paid the consideration.</p> <p>He further reported: “No formal delivery was then, or at any' subsequent time made by the father to the son, of the interest thus sold, (if, in fact, the nature of the property would admit of such a delivery); nor was there any change in the conduct of Hamilton Whigham, or in his connection with the mill, from that time until the date of the sheriff’s sale, such as would indicate to the world any change of ownership, so far as his interest was concerned,” — together with other facts hearing upon the question of change of possession and control of Hamilton’s interest in the mill. The sale of Hamilton’s interest by the sheriff was made as alleged in the bill.</p> <p>The master further reported that it was Andrew Taylor’s “ right, if not his duty under all the circumstances, to refuse to give the plaintiff possession thereof, or any participation in the profits, or business of the mill, until the respective rights or claims of the parties should be first settled.” * * *</p> <p>“ The question of law arising on those facts, respecting the validity of the sale of Hamilton Whigham’s interest in the mill to his son William, as against the sheriff’s sale of the same interest to the plaintiff, is one which the master does not undertake to pass upon, regarding it as a question for the determination of the court.”</p> <p>On the 16th of September 1869, the court decreed:—</p> <p>1. “ That by virtue of the sheriff’s sale referred to in plaintiff’s bill, Adam Forsyth became the owner, and is entitled to the possession of the two-thirds interest in the mill mentioned in said bill.</p> <p>2. “ That plaintiff’s bill be dismissed as to Andrew Taylor, upon his accounting for, and paying to plaintiff, Adam Forsyth, two-thirds of the profits of said mill, which have accrued since the date of the sheriff’s sale, viz.: August 2d 1868.</p> <p>3. “ That the claim of William Whigham, who intervened for an interest in said mill, be dismissed, and that he pay the costs of this proceeding, in that behalf incurred.”</p> <p>The defendant Whigham appealed to the Supreme Court, and assigned the decree for error.</p>

80, to October and November Term 1869. James Carothers brought suit before a justice of the peace against Washington Cummings and Mary Cummings, and obtained judgment on the 30th of May 1868. On the 20th of June the defendants took an appeal from the judgment, and on the 4th of September, filed the appeal in the Court of Common Pleas of Allegheny county.

<p>1. A judgment in favor of or against a dead man is not a nullity.</p> <p>2. In a scire facias on a judgment, the defendant cannot go behind the original judgment.</p> <p>3. A judgment was entered in favor of C., he at the time being dead: the record imported that he was living, and to allow the contrary to he shown would have impugned the record.</p>

109, to October and November Term 1869. On the 3d of December 1868, Washington McClintock and A. J. Cochran filed a claim to secure a lien for materials “ furnished within six months” against a building of which David Rush was the owner.

<p>1. If the owner of land sold for taxes during his minority,redeem, within ten years after arrival at age, under the 4th section of Act of March 13th 1815 (Unseated Land), he must pay the purchaser the value of improvements.</p> <p>2. Where land sold for taxes is recovered by the owner because it was seated at the time of sale, under the Act of April 12th 1842 (Unseated Land), he must pay for the improvements, unless the purchaser knew when 'they were made that the land was seated.</p>

116, to October and November Term 1869. This was an action of ejectment to July Term 1866, for one acre of ground in West Pittsburg, brought by Adam Appal, lessee of Elizabeth F. Denny, against James Wood. The defendant having died pending the suit, his widow and devisees were substituted as defendants.

No. 121, to October and November Term 1869. The appeal in this case was by Elizabeth Township, Allegheny county, from the decree of distribution of the estate of Alexander McClure, deceased, in the hands of his executors.

<p>Error to the District Court of Allegheny county: No. 122, to October and November Term 1869.</p> <p>This was a scire facias issued, May 4th 1869, by William Peterson and another, executors, &c., of H. H. Peterson, deceased, against William H. Stewart.</p> <p>W. H. Stewart, in 1851, brought a suit against the executors of H. H. Peterson, deceased, in which the defendants recovered a verdict; judgment was entered on the verdict January 4th 1856. On the 10th of June the defendants’ costs were taxed at $135.73. On the 30th of October 1856 a fi. fa. for costs was issued, to this there has been no return. No further proceedings were had in the case until the issuing of this scire facias.</p> <p>On the 14th of June Stewart filed an affidavit of defence, “that the time elapsed since the first judgment was had in this case, is, by operation of tbe Statute of Limitations, conclusive, tbe costs in any case being but an incident of the judgment, and which incident arises merely by implication creating an implied promise legally to pay, and is a subject upon which the Statute of Limitations will fully operate, and which will and does give the defendant a full and legal defence, who hereby denies, by his agent, any right existing in ■ the plaintiffs to have a judgment in this case merely for the purpose of collecting costs, and for this that the parties for whom the costs are coming, and due and owing, either are not living or are themselves cut out by the Statute of Limitations, and cannot collect the costs themselves, and consequently the plaintiffs should not be allowed to do that which their principals cannot do.”</p> <p>On the 25th of June the court entered judgment against Stewart for want of a sufficient affidavit of defence.</p> <p>This was the error assigned on the removal of the case to the Supreme Court.</p>

<p>1. All homicides are presumably unlawful.</p> <p>2. The fact that a homicide has been committed is probable cause for commencing a prosecution against the perpetrator.</p> <p>3. In action for malicious prosecution for instituting a charge of homicide, evidence that the prosecutor stated before the grand jury that as the coroner’s inquest had found the killing to be accidental he did not wish to prosecute further, was proper on the question of malice.</p> <p>4. A child was run over by a street car and killed. Dietz, the uncle of the child, made information against the driver. The magistrate said to Dietz that the father was the proper person to make the information; but Dietz insisted on making it, as the father was too much excited. The judge stated this to the jury, and added, “Was this sufficient justification in this case ? If it was, then the plaintiff cannot recover." Held to be error, as leaving it to be inferred by the jury that if they thought it was not a justification the plaintiff might recover.</p> <p>5. It is the duty of every citizen to procure a warrant where there is good reason to believe that a high crime has been committed.</p> <p>6. A plaintiff in an action for malicious prosecution must establish both malice and want of probable cause.</p> <p>7. Malice may sometimes be inferred from want of probable cause, where there is nothing to rebut the inference; but this is the inference of a fact.</p> <p>8. Where there is probable cause, it is not material whether the prosecutor be actuated by malice or not.</p> <p>9. In an action for malicious prosecution, the judge charged, “It is not necessary the defendant should have malice towards the particular person, but malice is a disregard of what a man owes to society.” Held to be error.</p> <p>10. What is probable cause, and whether it exists in the proof, if believed, is a question of -law; whether the proof establishes it is for the jury.</p>

<p>1. Id. an action against an administrator for the debt of his intestate, the Statute of Limitations is a bar, although six years had not elapsed at the death of the decedent, and the suit was brought within six years after his death.</p> <p>2. McOlintoek’s Appeal, 5 Casey 361, is not applicable to a case where an action is brought directly against the administrator.</p> <p>3. The Act of 1797, section 4th, substituted by the 24th section of Act of February 1834, was not an enlarging, but a restraining act for the purpose of confining the prior unrestricted lien of a decedent’s debts against his estate.</p> <p>4. The Act of 1797, section 4, did not create a lien, but limited it to a term of years.</p> <p>5. Micheltree v. Yeech, 7 Casey 455, and McCandless’s Appeal, 11 P. F.. Smith 9, considered.</p>

<p>1. It is not necessary for a judge to answer every point presented to him separately if they are substantially answered in the charge.</p> <p>2. It is not error in a j udge to extract the law contained in points and apply it in. a connected form to the evidence.</p> <p>3. The 3d section of Act of April 17th 1856 (Charge of Court) does not require that each point shall be answered separately; if one sufficient answer is given to the whole, the law is complied with.</p> <p>4. If an answer be contained in the charge it is sufficient.</p> <p>5. The provisions of the Acts of 15th and 17th April 1856, that the points and answers shall be filed immediately by the prothonotary, and that the judge shall file his charge with the prothonotary, &c., are directory, and the neglect does not render a judgment erroneous.</p> <p>6. The Acts of April 1856 and February 24th 1806 are in pari materiá.</p> <p>7. A judge has a right to request the jury to find particular facts; but the jury may disregard the request, and find a general verdict.</p> <p>8. Wheeler v. Winn, 3 P. F. Smith 128, remarked on.</p>

<p>Error to the Court of Common Pleas of Allegheny county. No. 159, to October and November Term 1869.</p> <p>This was an action on the case for libel, to December Term 1867, by Daniel O’Niell against John W. Pittock, James Mills and James B. O’Niell. On the trial there was no evidence against J. B. O’Niell, and the court directed the jury to find a verdict for him. The other defendants were publisher and editor of a newspaper published in Pittsburg, called “ The Sunday Leader.”</p> <p>The publication complained of was made in the Sunday Leader, April 21st 1867, and is as follows:—</p> <p>“The Latest Divorce Sensation. — An application for divorce by an injured husband. A terrible story of domestic treachery and guilt.</p> <p>“ There was a great deal of excitement in certain circles in this city yesterday, growing out of developments made in regard to an appliéation to the Court of Common Pleas for a decree of divorce. It is no pleasant duty to record these frequently occurring instances of domestic infelicity; but the custom has become sanctioned by usage, and we believe in the end its results are beneficial, in so far as it holds up to public scorn and condemnation those for whom the law affords no adequate punishment, and whose crimes carry in their train household ruin and the wreck of domestic happiness. Such a case we have now to deal with, and it is one characterized by the most shameless treachery and hypocrisy. The annexed petition filed in the Court of Common Pleas yesterday, gives the names of the parties to the proceeding now pending, and the alleged cause of the divorce asked for:”</p> <p>Then followed the petition, by J. B. O’Niell, for divorce in the usual form, alleging that the plaintiff had committed adultery with petitioner’s wife.</p> <p>The publication proceeded:</p> <p>“Mr. Daniel O’Niell referred to in this petition, is a member of the Common Council from the Second Ward, and has considerable local reputation as a journalist. He is a first cousin and brother-in-law of the applicant for divorce, having married his sister some twelve years ago in Ireland. This lady died in June last, and her husband was again married last Thursday to a young lady of Allegheny, and is now absent from the city on a wedding tour. We have further details of this scandalous affair, but withhold them until the party upon whom the great weight of the public odium must fall, returns to the city, and has an opportunity of being heard in his own defence.”</p> <p>The declaration set out the publication with appropriate innuendoes as to the persons mentioned in it.</p> <p>The plea was not guilty.</p> <p>There did not appear, on the trial before Sterrett, P. J., to be any dispute as to the publication of the alleged libel.</p> <p>The defendants submitted points, two of which were disaffirmed by the court.</p> <p>The court, after referring to the facts and defining a libel and explaining the law in regard to it, proceeded:—</p> <p>“ The writer of the article complained of appears to have taken for his text the petition of James B. O’Niell for divorce, filed in this court shortly before the date of the paper given in evidence. [Taking the whole article together, the petition for divorce and the comments upon it, there can be no doubt that it is libellous and grossly so. It is of a character tending necessarily to injure the reputation of the plaintiff and expose him to public hatred and contempt.]</p> <p>“ In a criminal prosecution for libel, the defendant cannot— except in particular cases — justify and prove the truth of the libellous expressions for the reason that the injury to the public morals and the tendency to provoke a breach of the public peace is about as great when the libellous matter is true as when it is false. The object of a criminal prosecution is, as already stated, to redress the public wrong, but in a civil action for damages the defendant may, if he is able to do so, put in a plea of justification and prove the truth of the allegation contained in the alleged libel.</p> <p>“In this case the defendants have not attempted to justify and prove the truth of the alleged libel. Their plea is not guilty, and this virtually concedes the falsity of the libellous matter contained in the article before you. It was therefore unnecessary for the plaintiff to offer any evidence tending to show that they were false.</p> <p>“ It is necessary however for the plaintiff to prove to your satisfaction that the libel was published by the defendants, and on this point considerable testimony has been given. [If the evidence satisfies you that it wras published by them, the burthen is then thrown upon them of disproving malice in the publication by showing justification, extenuation or excuse.]” * * *</p> <p>The jury found for the plaintiff against Pittock and Mills for $1000. They took a writ of error and assigned for error, the answers to their points and the portions of the charge included in brackets.</p>

<p>These were writs of error to the Court of Common Pleas of Allegheny county: No. 143 and 144, to October and November Term 1869.</p> <p>In the court below two writs of ejectment were issued, February 29th 1868. One by Alexander C. McGinniss and William McGinniss against Edward McGinniss for three acres of land in Chartiers township: on the 7th of December, Benair C. Sawyer, vendee of the plaintiffs, was substituted as plaintiff. The other writ was at the suit of Alexander Millar and Charles Millar against the same defendant for about 118 perches of land in the same township. The two lots adjoined each other. Both cases depending on the same evidence, they were tried together.</p> <p>In 1838 Jeremiah Dunlevy owned a tract of about 26 acres of land, part of which was called the West Elliott tract, which he sold to Joseph Gunther, Francis Snyder and Nicholas Snyder. They went into possession and made parol partition of the tract; Gunther’s part adjoined David Noble and on the line between them Gunther put up a fence; in 1839 he sold his part to William McGinniss. On the 12th of June 1840, Noble conveyed his tract to Edward McGinniss. On the 5th of April 1860, William McGinniss conveyed 118 perches of his tract to Alexander Millar, William J. Millar and Charles Millar. On the 6th of August 1862, H- Woods, sheriff, conveyed the interest of William McGinniss to H. Baker and Jacob Henrici, who on the 12th of September 1865 conveyed to Alexander C. McGinniss and William McGinniss, Jr.; they, August 1st 1868, conveyed to Benair 0. Sawyer. The land in dispute is on the line between Gunther and Noble, now Millar and Sawyer, on the one side and Edward McGinniss on the other. There had been two ejectments previously for the land, in the first, brought February 5th 1862 by Edward McGinniss, there was a verdict for the defendants, May 17th 1864. The second suit was brought by Edward McGinniss, May 31st 1864; the verdict and judgment were for the plaintiff and possession was delivered to him by the sheriff November 1st 1866. The whole question is dependent upon the proper location of the line between the parties, which commenced at a point, designated as the Lorenz corner.</p> <p>The plaintiffs claimed that the line ran from the Lorenz corner, north 43|-° east to the river : the defendant claimed that the line from the Lorenz corner, ran north 50° east to the river. The principal question in the case being as to the title under the Statute of Limitations.</p> <p>On the trial of the case, December 7th 1868, before Sterrett, P. J., the plaintiffs gave the following evidence as to a survey or plot, spoken of as the “ Steele survey.”</p> <p>Condoreet McGowan testified:—</p> <p>“ Am engineer and surveyor; am brother of R. E. McGowan, deceased; was acquainted with Z. W. Remington; have been surveying for about 28 years. I have a plot of lots made for McGinniss and Snyder by Remington in 1849. This is a copy made by myself from the original. I have a copy of the Steele survey among my papers, but I have not had time to find it. This Steele plot or draft was in possession of Remington, and after-wards of my brother. * * * In 1849 I assisted my brother, R. E. McGowan, in running the line; he ran then as I did myself afterwards.”</p> <p>Being recalled, he testified:—</p> <p>“ I examined for the copy of the Steele survey of the river hill lots ; found it — have it in my hand; it had got mixed up among other papers. This copy is in the handwriting of my brother, R. E. McGowan, now deceased. It was copied off a plan supposed to be the original in the hands of Z. W. Remington. I may have seen the original, but will not be positive. Don’t know that I have any right to answer what became of the original and other papers in Remington’s possession; I believe Remington burned them up — didn’t see him doing so. The date of this copy is as appears on its face — ‘ Copied Dec. 8d 1835,’ is in the handwriting of R. E. McGowan. I first saw this copy in 1841 or 1842, and it has been in my possession ever since, only when it was in court. At the time I first saw it, it was in possession of Remington & McGowan; they were in business together at that time. I have surveyed part of the John Elliott land; have surveyed the river hill lots from Saw-mill Run to Cork’s Run. In my surveys I found marks upon the ground showing that a survey had been made upon the ground about 1810 — trees marked at that time. If they were blocked, they would count back to that date — trees standing still.”</p> <p>N. Patterson testified: —</p> <p>“ I saw a plan of the river hill lots, purporting to have been made by David Steele; had seen Steele’s signature to different surveys; he was a surveyor in this county in olden times; the plot purported to have been made some time before 1820. I have surveyed some of the river hill lots by what I took to be the old plan; this was about 1833, for John M. Snowdon; he went out west; don’t know that he is dead. I would take this to be a copy of the original, or what I took to be the original, in the handwriting of Steele. In running the river hill lots I find the lines on the ground to correspond with the draft; these marks on the ground, corresponding with the plan, satisfied me that the survey had been made upon the ground.”</p> <p>James Trunick testified:—</p> <p>“ Knew David Steele. He followed surveying. I owned at one time a part of the West Elliott tract. In 1834 I bought some of the river hill lots. I went to D. Frew, executor of West Elliott, and got Steele’s plot of 1807 of the whole tract of West Elliott land, showing the subdivision of the whole tract — Elliott’s Delight —including the river hill lots, 12 in number; No. 1 beginning at Edward McGinniss’ land and numbered up to No. 12, at the John Elliott line. Major Patterson and I had that plot when he was running the line of my lots. I think Patterson had the plot afterwards, I think in 1837, to survey for John M. Snowden, and then in 1839 Z. W. Remington got it. I think it was 1807 the plot bore date — it might have been 1809; there was a blot on the figure and I took it to be 1807. I never saw this plot, but think it corresponds with the original in sizes and shapes of the lots.”</p> <p>E. H. Heastings testified: (witness shown Steele’s plan of the river hill lots):—</p> <p>“ I think I have seen this plan before. From my surveys on the ground and the description in the Shamway deed of the lots, I think this plan represents correctly the river hill lots. I saw the original plan; I should take this to be a copy of this original plan. I believe the original plan was burned, from the circumstance : At the time R. E. McGowan had a lawsuit with Remington, Remington came to me after the lawsuit and wanted me to take his place, books, papers, office, &c., and I declined; at the same time or afterwads he intimated that the papers were pnt out of the road, so that there would be no more lawsuits about them. I got the impression — whether from what he said or not, I cannot say — that they were burned in the back-yard. Remington went out west; don’t know where he is — whether he is living or dead; I heard that he was living, and heard also that he was dead. I have seen this plan two or three times; saw it lately, I think, in another case.”</p> <p>Plaintiffs offered in evidence the copy of the river hill lots referred to by the last witness and others. Defendants object to the offer, 1st, because the copy is not sufficiently authenticated; 2d, that the loss of the original, of which this purports to be a copy, is not sufficiently proved; 3d, because it is incompetent and irrelevant.</p> <p>The evidence was admitted by the court and a bill of exceptions sealed.</p> <p>Peter Brady, who had been engineer of the Pittsburg and Steubenville Railroad, which passes through the land of both McGinnisses, testified that in running the line of the railroad and supervising its construction about 1853 and 1854; he found the line fence between the parties where the plaintiffs claim that it should be; that the defendant was on the ground with witness when he staked off about an acre of land on defendant’s side of the fence, for a “borrowing pit,” allowing some distance from fence for slope; defendant was there by appointment of the chief engineer, witness told him they wanted to keep far enough from the fence so as not to let it fall and to take all the pit from his ground; defendant made no objection and said nothing about the line. William McGinniss then claimed up to the fence from the other side; the fence appeared to be of some age; the posts were decayed.</p> <p>William McGinniss under objection and exception testified: that when he purchased the land in 1839, Noble claimed up to the fence and the witness down to it; when railroad damages were assessed he and Edward, who had bought of Noble, claimed in the same way, and the damages were so paid to them respectively. At one time Edward moved the fence over on witness and the next morning witness tore it down and put it back into the old post holes; witness did not know how long before the first suit against him it was that the fence was torn down; witness always claimed to the fence; there was'no dispute about the fence till since the sale to Millar.</p> <p>Owen McGowan testified that in 1856 or 1857 under the direc-. tion of Edward McGinniss he moved the fence 12 or 14 inches over on Williams side.</p> <p>There was much other evidence given by the plaintiffs tending to show an adverse holding of the land in dispute by themselves and their predecessors for such a length of time as to give them title by the Statute of Limitations.</p> <p>The defendants gave evidence by a number of witnesses that about the line of these tracts there was a piece of sunken ground and that the line fence was over one end of this sunken ground ; this would bring the line to the place claimed by the defendant. There was also much other evidence by the defendant tending to show that the line was where he claimed it to be, and to establish other marks than the sunken ground. There was also a large amout of documentary evidence and evidence bearing upon questions other than the Statute of Limitations, given by both parties.</p> <p>In the course of the trial witnesses were offered by the plaintiffs, objected to an account of interest, and admitted under exception.</p> <p>The court charged:— * * *</p> <p>“ A great deal of testimony has been given in relation to lines of different surveys, and a number of deeds have been given in evidence by both parties, but in our judgment this amounts to nothing, so far as showing a paper title in either party is concerned. In short, neither party has shown a paper title to the land in controversy, and it is unnecessary to embarrass your inquiry by any explanation on this point. Neither of the plaintiffs is entitled to your verdict upon the strength of the paper title given in evidence. But we do not mean to withdraw from your consideration the surveys, plots and other papers given in evidence. So far as these, taken in connection with the other testimony in the cause, may assist you in determining the point up to which the respective parties held and occupied, you can avail yourselves of them.</p> <p>“ The plaintiffs can claim your verdict only on two grounds, either of which, if sustained by the testimony, will entitle them to recover.</p> <p>“ 1st. That they, and those under whom they claim, have had exclusive, peaceable, continuous, notorious and adverse possession of the land in controversy for a period of more than twenty-one years prior to the 31st day of May 1864, the time the second suit was brought in the District Court; or.</p> <p>“ 2d. That the line to which the plaintiffs claim, and on which they allege the division fence was erected and maintained — running from the Lorenz corner north 41|° east to the river — was recognised as a division line by them and those under whom they claim, as well as by the defendant and those under whom he claims, for a like period of more than twenty-one years prior to the institution of the second suit. * * *</p> <p>“ Keeping these propositions before you, then, apply the testimony to them and ascertain whether either of them is sustained by the evidence.</p> <p>“ The plaintiffs claim that immediately after Gunther and the Snyders purchased in 1838, they employed a surveyor and divided their land into three equal portions, so that each would have an equal front on the river; that Gunther went into possession of his portion — being the lower part — built a fence on the line to which they claim, cultivated a portion of the land up to this fence in the spring and summer of 1839, and in 1840 sold to William McGinniss, who went into possession of the same immediately, built a house, kept up the fence on the same line, and continued to occupy and use the land up to the division fence, as he claimed it, for more than twenty-one years; that during this period the land was used and occupied up to the line claimed by plaintiff as lands are usually occupied and used by owners ; that he cultivated portions of it, cut and sold timber off the wood land, pastured the upper and lower portions of it, used and rented the river landing below the public road ; that the Millars, who purchased a portion of the river front from him in 1860, used and occupied the same until they were ejected after the recovery in the second suit; that the vendees of William McGinniss at sheriff’s sale continued in possession in like manner as he had done. The plaintiffs have offered testimony tending to show all this, and unless it has been successfully met by the testimony of the defendant, the plaintiffs have made out a complete title under the Statute of Limitations, if their testimony is believed by you.</p> <p>“ On the other hand, the defendant contends that the division fence and line between the two tracts were not located where the plaintiff’s witnesses have placed it, but on the line to which he claims — the line running north 50° east, through the lower end of the sunken ground, on striking the river about 15J rods above the point to which the plaintiff claims, and the Lorenz line about 9 26-100 perches east of the plaintiff’s starting point; that the plaintiffs and those under whom they claim, did not occupy and use the land in controversy, as claimed by them; and they have offered testimony tending to prove this state of facts. Whether they have done so or not is for you to say, from all the evidence before you. * * * The location of the division fence is the great question in these causes, and it must be admitted that there is a great conflict of testimony in regard to it. It is your special province to decide it, and say by your verdict what the fact is.</p> <p>“ Under the evidence it would appear to he highly improbable, if not -impossible, for two fences to have been located on these respective lines at the same time. No witness in the cause even intimates that there were ever two fences at the point in question running from the public road up the hill to the Lorenz line. [The plaintiff’s counsel contend that the testimony of Peter Brady, as to the connected map made by him at the time the railroad was being constructed, showing the lines of the different landowners through which the road passed, verified by his recent measurements upon the ground, and corroborated by other testimony in the. cause, establishes conclusively that the division fence was on the line claimed by them at that time, viz.: in 1854 or 1855, and that there is no evidence to show that it had ever been removed from where the defendant alleges it was located to that point. On the other hand, the defendant’s counsel contend that their testimony fixes the location of the division fence at the point claimed by him, through the end of the sunken ground.]</p> <p>“ [The second proposition on which we have said the plaintiffs may recover, if it is sustained by the evidence, viz: a fence on the location claimed by them, recognised by the parties on each side as a division fence for a period of over twenty-one years, &c., depends mainly on the same testimony. It will avail the plaintiffs nothing to show that there was a division fence which the parties on each side recognised as such, unless they show that it was located on the line to which they claim. * * *</p> <p>“ If you find that the division fence was located and maintained on the line claimed by the plaintiffs, there is no evidence of any entry by the defendant that would interrupt the running of the Statute of Limitations in favor of the plaintiff prior to the institution of the second suit. There is some evidence that at one time the defendant moved the fence over some twelve or fourteen inches on William McGinniss, but this would not affect the plaintiff’s right to recover, so far as the Statute of Limitations is concerned.]”</p> <p>The verdicts were for the plaintiffs.</p> <p>The defendant removed the cases to the Supreme Court and assigned for error: the admission of the copy of the Steele plot; the portions of the charge in brackets and the admission of the witnesses objected to on the ground of interest.</p>

<p>1. Bremer owned a line of coaches, Bennington was his agent at a station. Leopold owing Bennington, pledged tools for the debt, borrowed them from Bennington to work with and. pledged them to Stewart for a debt to him. Stewart put them into one of Bremer’s coaches to be carried, and did not pay, or tender the freight. When the coach reached Bennington’s, he took the tools out, claiming them under the pledge, tendered Stewart the amount due him from Leopold, declaring that he took the tools on his own responsibility, and not as agent for Bremer. Held, that Bremer was not liable as common carrier to Stewart.</p> <p>2. Bennington was not the servant of Bremer in. the transaction, and liable over to him for negligence or breach of duty.</p> <p>3. If there was any liability on Bennington, it was to Stewart or Leopold for taking the tools.</p> <p>4. The freight not having been paid, Bremer’s liability as a carrier had not begun and no contract for carriage had been consummated.</p>

108, to October and November Term 1869. This was an action of ejectment, commenced October 9th 1867, by Noah Grant and Eliza Grant against Murray A. White and others, for 20 acres of land, bounded by the Monongahela river on the south, George F. White on the east, &c. On the trial before Acheson, P. J., the plaintiffs gave in evidence a patent to Noah Grant, dated July 26th 1867, in pursuance of a warrant to him dated January 30th 1865, and survey, for 13 acres 22 perches,…

<p>Appeal from the decree of the Court of Common Pleas of Washington county: In Equity: No. 170, to October and November Term 1869.</p> <p>On the 12th of June 1867 Morgan W. Zollars filed a bill against Shadrach Hedge, Christopher Horn, Caleb H. Zollars, A. H.</p> <p>Deaves and thirty-nine others. The bill alleged :—</p> <p>1. That about April 1865 the plaintiff and defendants formed a voluntary association, called The Keystone Oil Company, to procure land and bore for oil.</p> <p>2. That the company was composed of 80 shares, the plaintiff owning four shares, C. H. Zollars four shares, Horn and Hedge two shares each, and the remaining shares were held by the other defendants in proportions set out in the bill.</p> <p>3. That there was to be paid $125 for each share, that thirteen of the defendants have paid the full amount for their shares, and that if the others would so pay there would be sufficient assets to discharge the liabilities of the company.</p> <p>4. That the company secured a lease of land, purchased machinery and sunk a well, but failed to obtain oil, and since November 1866 have done nothing further.</p> <p>5. That the company owes the plaintiff $827.50, and other persons about $1066.70.</p> <p>The prayers were for discovery of the amounts paid by each member; of the disbursements of the funds and of the liabilities of the company; for a receiver; for a settlement of accounts between the members and payments of the sums adjudged against them respectively and for further relief.</p> <p>C. H. Zollars admitted that he subscribed for four shares, but that by consent of the directors and at his request his subscription was reduced to two shares.</p> <p>Hedge and Horn answered jointly:—</p> <p>1. That on the application of Deaves they subscribed for two shares in a company to be formed, but never took any further part in the company, were never informed of any meeting, &c.</p> <p>2. They denied that they had any shares in The Keystone Oil Company, and averred that they never1 received any evidence that they were regarded as members of it.</p> <p>8. They averred that the value of the shares for which they subscribed was $50 each.</p> <p>4 and 5. They were not informed as to the allegations in these paragraphs.</p> <p>All the other defendants made default, and the bill as to them was taken as confessed.</p> <p>No replication was filed to the answer of Hedge and Horn.</p> <p>The court did not find a partnership nor decree an account. Alexander Wilson, Esq., was appointed master; he heard a large amount of testimony on the questions raised by the bill and answer.</p> <p>The master, in his report, stated the evidence very much at large, and reported that Hedge and Horn had each subscribed for two shares of the stock and that neither had paid any part of their subscription. He further reported: * * *</p> <p>“ There is no testimony that Hedge and Horn ever did participate in any meeting of the company, but the evidence is plenary that the company was formed; and that a formal organization took place shortly afterward by the election of a president, vice president, secretary, treasurer and board of directors. This was done by the stockholders, as the minutes show, on the 28th day of April 1865.</p> <p>“Although the want of this formal organization would not relieve the respondents from liability, it shows that prompt £ steps were taken’ by the members to carry out the objects of the association. And the evidence is also plenary that £ liabilities were incurred’ by the company; undoubtedly incurred on the faith of the subscription of stock. Had Hedge and Horn desired to withdraw from the company, it was their duty to do so promptly before any liabilities had been incurred, or any steps taken toward the prosecution of the work. Hedge and Horn subscribed to the stock, told divers persons that they had taken stock, suffered the company to go on with the work and incur large indebtedness, and they cannot now be permitted to set up the defence that they never received formal notice of meetings, or participated in the formal action of the company. The consideration for their subscriptions was the prospective gains of the association in the venture for oil, and the law does not recognise the doctrine of Hedge that if oil was obtained, he would pay; otherwise he would not.” * * *</p> <p>“ So soon as 'a subscription paper, such as this was, becomes complete by the subscription of the stipulated amount of money, the subscribers become an association, united for contributing to a common fund for a common purpose; the subscription of each becomes a contract by each with his fellows, in consideration of similar contracts by them, to contribute to the common fund the amount subscribed by him. But this subscription may be withdrawn before the actual organization and before any liabilities have been incurred on the faith of the subscription.” * * *</p> <p>The master reported an account finding amongst other things that Hedge and Horn owed $250 each; also what was due from each stockholder, the names of the creditors and the amount due to each, the claim of the plaintiff, $507.71, being one.</p> <p>The report of the master was excepted to and confirmed by the court; who decreed that Hedge and Horn should each pay $250, that the other stockholders pay what was ascertained by the report to be due by them, that the plaintiff and the other creditors be paid their respective claims, &c.</p> <p>Hedge and Horn appealed and assigned for error: Referring the case to a master without first decreeing an account, decreeing the payment by Hedge and Horn of $250 each, and confirming the master’s report.</p>

<p>1. A trust resulting from payment of purchase-money may he established by parol, but the evidence must be clear and unequivocal that the money was paid at the time. A subsequent payment will not answer.</p> <p>2. If one setting up a resulting trust paid no money, he cannot show by parol that the purchase was made for his benefit.</p> <p>3. A resulting trust will not arise from advance of money to the purchaser after the purchase is complete.1</p> <p>4. Such payment would not, by relation, attach a trust to the original purchase. '</p> <p>5. A resulting trust is raised only from fraud in obtaining title or from payment of the purchase-money when the title is acquired.</p>

<p>Appeal from the decree of the Orphans’ Court of Beaver county: No. 152, to October and November Term 1868.</p> <p>The proceedings in this ease were upon the distribution of the estate of Rebecca Campbell, deceased, in the hands of Hugh B. Anderson, administrator d. b. n. c. t. a.</p> <p>The decedent died in October 1862, and, by her will, directed her estate to be divided amongst her six children, Alfred and Charles, two of them, each to receive $100 more than the others. On the 18th of February 1860, C. H. Hays obtained a judgment against Alfred Campbell, on which an attachment execution was issued, Mrs. Campbell’s administrator being garnishee; the judgment against the garnishee was $11.90 and costs $2.93. On the 1st of December 1862 Alfred gave his note to the administrator for a vendue bill amounting to $4.73, payable in nine months: on the 17th of March 1863 Alfred commenced an action of assumpsit against his mother’s administrator, in which there was a judgment for defendant for costs $239.75, which the administrator paid out of the estate, and $42.06 docket costs. The administrator issued an attachment execution for the costs, and laid the attachments on the legacy in his own hands.</p> <p>By deed dated 24th of June 1863, and executed in the next October or November, Alfred assigned to James M. Phillis, “in trust for the sole use and benefit of my wife, Elvira Campbell, her heirs and assigns, all and every legacy, or legacies, left to me by the same Rebecca Campbell,” &c.; the assignment was put into the possession of the wife and remained there.</p> <p>The administrator’s account was confirmed at November Term 1866; it showed abalance of $2324.04 in his hands, and E. B. Daugherty, Esq., was appointed auditor to make distribution.</p> <p>The principal question before the auditor was as to the validity of the assignment of the legacy to Alfred’s wife.</p> <p>The auditor found that the above debts were due by Alfred, and reported that there was evidence before him that the wife had received $30 to $35 from her father’s estate, which she had given to her husband; that she had sold a horse for $75, which she gave to him; that she had given him $15, and also that she held against him a note for $100, the consideration of which did not appear. After referring to the sources from which the other money came, the auditor, in a well-considered report (which the reporter regrets that he cannot give in full), proceeded:—</p> <p>“ It is clear that the only separate estate which Elvira Campbell had was the $30 to $35 referred to as coming from her father’s estate; and since, in any event, she will receive, under the assignment, a much larger sum than that, which was her own separate property or money, it is a matter of no importance whether that amount was given to her husband or not.</p> <p>“ For the purposes, then, of this distribution, it is manifest that the assignment was not founded upon sufficient consideration, but may at least, outside the $30 to $35, be considered as voluntary.</p> <p>“ In this view, can it then be sustained ? The rules governing post-nuptial settlements would seem to be:—</p> <p>“ 1. That when fairly made by a husband not indebted at the time, the settlement will be sustained.</p> <p>“ 2. When the husband is actually indebted, he must retain such amount of his estate as would be sufficient to pay his debts, and answer the reasonable probabilities of the future.</p> <p>“ 3. The settlement must not be for more than a reasonable provision for the wife, and the reasonableness thereof is determined by the whole amount of his estate.</p> <p>“ 4. In any event, to be good against future creditors, he must retain, at the time of the settlement, sufficient estate to answer the probabilities of the future.</p> <p>“ 5. That where a husband gives to his wife all his available means, retaining little or nothing to answer his own, or the demands of future creditors, the provision is unreasonable and void as against such creditors.</p> <p>“ 6. When a settlement fairly made, and being in conformity with the foregoing rules, is attacked by creditors whose debts accrued after its making, on the ground of fraud, such fraud must be proved.</p> <p>“ 7. Where the debts are contracted after a proper settlement is made, in conformity to above rules, such creditors attacking the same, must show that the intent to defraud future creditors existed at time of making.” * *</p> <p>He referred to the testimony on the question of Alfred’s pecuniary condition and found: “ That at the time of the assignment by Campbell to his wife, and ever since, he had not, and has not since had, any property or estate out of which then existing or since contracted debts could be made; that when he. executed said paper, it was not a reasonable provision for his wife, as compared with what he retained, but was in effect, so far as creditors then existing or prospective were concerned, a transfer of his entire available means, and indeed the only fund out of which collection would be possible. The auditor, therefore, is of opinion, that so far as the claims above stated are affected by the assignment, it is void, for the reasons stated.” * * *</p> <p>He then reported that the claims referred to should be allowed out of Alfred’s share of his mother’s estate.</p> <p>“ The remaining portion of Alfred Campbell’s legacy is awarded to James M. Phillis, trustee, for the use of Elvira Campbell, under the assignment.</p> <p>“ In arriving at the conclusion above stated, to wit: That the assignment is invalid as against the claims stated, the auditor does not go into the intent of Campbell at the time it was made, but puts it on the ground, that in view of his circumstances at the time, he had nothing available left; that the Hays judgment was due and payable; that the suit upon which the costs subsequently accrued was then commenced; in view, then, of these, as well as the general facts in the case, as said before, the deduction is made that as a matter of law the paper is void as against the claims referred to.” * *</p> <p>The auditor found that Alfred’s share was $478.95</p> <p>Prom which he deducted:—</p> <p>“ Defendant’s bill of costs in No. 10, June T. 1868,.......$239.75</p> <p>Record bill, to be paid to prothonotary, . 42.06</p> <p>Costs of attachment, No. 28, March T. 1866, 5.01</p> <p>C. H. Hays’ judgment v. Adm’r., Garnishee, 17.16 Note to administrator, . . . . 4.73</p> <p>- 308.71</p> <p>And awarded the balance, $170.24”</p> <p>to J. M. Phillis, trustee of Elvira Campbell.</p> <p>Exceptions to the report of the auditor were filed by Phillis, the trustee:—</p> <p>1. In holding that the assignment was void as against the costs in the case of Alfred Campbell against the administrator of Rebecca'Campbell.</p> <p>2 and 3. In not awarding the whole amount of the legacy without any deduction, except the debts due C. H. Hays and II. B. Anderson, administrator, originally for $4.73.</p> <p>Judge Acheson, in delivering the opinion of the court on the exceptions, said: * *</p> <p>“ It has been claimed that these costs must be regarded as a subsisting debt prior to the date of the transfer, the suit having been brought, and that the pendency of the litigation is evidence bearing upon the honesty of the assignment.</p> <p>- “ We cannot regard these costs as a subsisting liability from the commencement of the action, nor can we look upon the legal controversy as sufficient of itself to warrant the conclusion that a fraud was intended. It is true, that litigation is a somewhat ‘ hazardous business,’ but the inference, that because Alfred Campbell was attempting to collect a claim against the estate, he anticipated defeat, and was placing his property beyond reach for costs, strikes us as unauthorized. Fraud must be proved, and cannot be presumed.” * * *</p> <p>“ Notwithstanding the commendable care taken by the auditor, in the examination of the law and facts surrounding this transfer, we are constrained to determine that,, as to subsequent creditors, actual fraud must be proved, and that the evidence falls short of establishing it. If actual fraud was charged, it should have been tried in the attachment proceeding, wherein the administrator attached the money in controversy in his own hands. But instead of this, abandoning his attachment he has settled his administration account, and the question is raised on the distribution of the estate.”</p> <p>The court corrected the finding of the auditor by allowing from Alfred’s share the vendue note, $4.73, and the judgment in favtfr of C. H. Hays, $17.16, and awarding the balance of the legacy, $417.12, to J. M. Phillis, trustee, &c.</p> <p>The other distributees appealed and assigned the decree of the court for error.</p>

<p>1. A canal company by its charter was required to build and keep in repair bridges where the canal should pass a road; as a traveller was passing over one of these bridges, it gave way and he was precipitated, with his wagon, &c., into the canal. Held, that an action lay against the company for the injury.</p> <p>2. The requirement was for the benefit of all persons travelling upon the highways.</p> <p>3. The charter is a law imposing on the company the burden of performing a duty to the public.</p> <p>4. If the duty to the public be not performed, the company is responsible to those who thereby suffer special injury.</p> <p>5. If a party has suffered special damage, whether direct or consequential from a public nuisance beyond that which affects the public, an action will lie against the author of the nuisance.</p> <p>6. Remedies provided by charter against a canal company, for injuries arising from the construction of their works, do not exclude the common-law remedies for injuries from an abuse of privileges or neglect of duties.</p> <p>7. A corporation bound in consideration of the franchise to keep a road or bridge in repair, is liable for injury to a person from want of repair, whether the defect be patent or latent, unless he be in default or the defect was from inevitable accident, tempest or lightning, or the wrongful act of a third person of which they had no notice or knowledge, and this although ordinary care was used in the erection or repair, and the work was done by competent-workmen under contract.</p> <p>8. In estimating damages for injuries to the person, the jury may consider the pain suffered, bodily and mental, the expenses and loss of property they occasion, and loss of time.</p>

<p>]. In a sheriff’s sale book were these memoranda: “26th April, property sold to David Kelly for §630, with the understanding if the money is not paid on or before the 8th of May, the property shall be sold again.” “ 8th of May, money not being paid, I have this day sold the property to John Mitcheltree for §600.” The sheriff’s deed recited the writs of execution and the purchase at an adjourned sale May 8th, by Mitcheltree. Held, that the sale to Mitcheltree was not invalidated by these entries.</p> <p>2. D. Kelly, who had made the first bid and refused to comply, could not object to the sale.</p> <p>3. If the sale book were a record, the whole record taken together showed a sale to Mitcheltree.</p> <p>4. The memoranda had no characteristic of a record, and Mitcheltree was not affected by it.</p> <p>5. A sheriff’s docket is kept to furnish means of proof of things transacted in the sheriff’s office, and possibly for supplying contents of lost papers, but is not esteemed a record.</p> <p>6. Kelly v. Green, 3 P. F. Smith 302, approved.</p>

<p>_ 1. Weltner, as guardian, leased land of his ward and was discharged from his trust, the tenant being in arrear. Brownfield was appointed guardian and leased to the same tenant. Weltner obtained judgment against the tenant ; the tenant occupied under Brownfield for two years, ana entered on a third year when Brownfield was removed and Iiagan appointed guardian. Weltner, during the third year, issued execution against the tenant on his judgment, the proceeds of sale were brought into court for distribution. On appeal the Supreme Court awarded to Hagan the rent for the pi'oportion of the third year, and the balance of the proceeds to Weltner for rent during his trust, in preference to Brownfield.</p> <p>%. The ward as owner of the demised premises was in equity entitled to one year’s rent out of the proceeds of the sheriff’s sale.</p> <p>3. Weltner’s judgment without satisfaction, did not take away the ward’s right of distress.</p> <p>4. The fund being less than one year’s rent, the ward was entitled to the whole of it.</p> <p>5. The landlord is not confined in his claim to the rent for the last year or that immediately preceding the sale, so that no more than one year be claimed.</p> <p>6. If there be no equities to interfere, the law would apply the proceeds of sale to the rent first due.</p> <p>7. The judgment for the rent to Weltner as guardian, gave the ward no additional right or security; the tenant having no property on which it could be a lien.</p> <p>8. Weltner having obtained judgment against the tenant on which the fund had been realized, had a legal right superior to Brownfield’s.</p>

<p>1. Advancement is always a question of intention.</p> <p>2. When there is no evidence of what occurred at the time of the alleged advancement, the attendant circumstances are to be considered in determining whether it be a loan, gift or advancement.</p> <p>3. Among the circumstances, the most important are, the amount as compared with the parents' estate, the number of children and the purpose of the advance.</p> <p>4. It is always a presumption that a parent means to treat his children equally.</p> <p>5. If his estate is large, a comparatively small sum will raise the presumption of a gift.</p> <p>6. If the purpose was education, it will be presumed until rebutted, to have been in discharge of parental duty.</p> <p>7. A conveyance to a child either directly or by payment of the purchase-money, and having the deed made to the child, is primfi. facie an advancement.</p>

<p>Appeal from the decree of the Orphans’ Court of Greene county: In the estate of William Armstrong, deceased; No. 68, to October and November Term 1869.</p> <p>The decedent died in 1861, having made a will dated August 18th 1852, and three codicils dated respectively, April 15th 1853, April 9th 1858, and February 26th 1851. By his will he made provision for his wife for life, and gave his furniture and other chattels to his daughters, Elizabeth Barekley and Mary Rea, equally, after his wife’s death. He devised his real estate, except “the mill property,” to his sons Alfred, Russell, William and Joseph, directing his executors to have the real estate, except the mill property, appraised, he then proceeded:—</p> <p>“ My homestead farm to be divided into three parts or parcels, equal in quality, quantity and timber, as nearly as may be; the farm on which my son Russel lives to he appraised and whatever it may be worth more than the other three, that remainder to be equally divided between my sons, share and share alike. It is my will after my real estate is divided and appraispd that my sons as above mentioned, have and occupy the same according to their present location in fee simple for ever.</p> <p>“ Item. I direct my executors to sell my mill property at any time at their discretion, within three years after my decease, for the best price they can obtain for it; then it is my will that my executors pay to my daughters as herein named, the sum of $1200 each, out of the proceeds of such sale. In case the sale amounts to more money than is devised to my two daughters, then it is my will the remainder to be equally divided between my two heirs íd general. In case my mill property should not bring the amount devised to my daughters as above, then it is my will their shares of $1200 each be paid to them out of my estate in general. Whatever of my personal property that may be remaining not herein devised, I order and direct my executors to sell the same, and apply the proceeds of such sale to my estate in general, to be equally divided between my heirs.”</p> <p>By his first codicil, he released to his four sons, “ all rents, issues and profits, which may be due, or becoming due to me at my decease, arising from the farms they now occupy, and which I have described and given to them in the foregoing will; and further, it is my will that all the improvements that they, or either of them may have made, or may make, shall not be taken into the equalization or valuation of the before-mentioned bequests.”</p> <p>The second codicil was : — “ In addition to the foregoing will and codicil, I give and bequeath to my two daughters, Elizabeth Barekley and Mary Rea, all my bank stock, to be equally divided between them.”</p> <p>The third codicil was: — “Whereas, I have loaned to Henry Barckley, intermarried with my daughter Elizabeth, $1193, and $640, paid him for one half-section of land situate in the state of Missouri, for which I have no title; now in case he, the said Henry Barckley, does not refund the money loaned, together with the money paid for the land, or the title, with the interest, &c., then it is my will, and I hereby revoke my will herein and above expressed, so far as it relates to my daughter Elizabeth, charging her with the above money so loaned and paid to her husband, Henry Barckley; and I further give and bequeath to my daughter, Mary Rea, in addition to what I have already bequeathed, a sufficient amount out of the proceeds of the sale of my mill and bank stock and other personal property, to make her equal with Elizabeth in the amount loaned and paid to her said husband, Henry Barckley. Conditioned the said Henry Barckley pays back the money loaned, together with the money paid for the land, or the title for the same, during my lifetime, then I hereby revoke and make void this supplement to my will as above written.”</p> <p>The portions of the real estate devised to Alfred, Joseph and William were each appraised at $5586.60; that devised to Russell was appraised at $4278.91. The mill property was sold for $1415. The executors settled their account, which was confirmed March 20th 1868, showing a balance of $1330.36 due the accountants; the proceeds of the mill property were not included in the account.</p> <p>Samuel Montgomery, Esquire, was appointed auditor to report from what source the indebtedness of the estate should be paid. The auditor reported that the bank stock bequeathed to the daughters was sold by the executors for $600; and that Henry Barckley did not return the money, or make the title as mentioned in the last codicil; that Mrs. Rea would therefore become entitled to the whole of Mrs. Barckley’s share of the proceeds of the mill and bank stock, as all would not make her equal with Mrs. Barckley, according to the codicil.</p> <p>The question was stated by the auditor to be whether the indebtedness should “ be paid out of the proceeds of the mill property and bank stock, or whether it shall be paid by the heirs in proportion to what each has received.”</p> <p>He decided “that the devises and legacies should abate in proportion to their several values -for the payment of this debt; that Mrs. Mary Rea is entitled to the proceeds of the sale of the mill property, $1415, with interest on the same from the 30th day of August 1864, subject to any receipts which she may have given for money paid her by the executors, and to $600 received by the executors for the bank stock, with interest from the 30th day of December 1862, subject to receipts for money or for any bank stock which she may have received from the executors; and also, subject to a credit for $132.70, which she should contribute to the payment of debts of the testator.”</p> <p>He concluded his report with a detailed statement of the-amount to be contributed by the devisees and legatee respectively.</p> <p>The court, after exceptions, confirmed the report.</p> <p>The devisees appealed to the Supreme Court, and assigned the following errors:—</p> <p>I. The court erred in overruling the exceptions to the auditor’s report and in confirming the same, which exceptions and confirmation are as follows, viz.:</p> <p>1. “ The auditor erred in charging the devisees with the payment of any part of the debts.</p> <p>2. In not paying the debts out of the personal estate, viz.: the bank stock and the proceeds of the mill property. ■</p> <p>3. In appropriating to Mary Rea all the bank stock, she having received one-half of the same, and in allowing her the amount loaned and paid to Henry Barckley, and charged to Elizabeth Barckley.</p> <p>4. In allowing interest from 30th December 1862, to an indefinite period.</p> <p>5. In allowing interest on Mary Rea’s legacy from a period before it was ascertained whether the legacy could be paid, there being no evidence of a tender of a refunding bond by her or any one for her.”</p> <p>II. The court erred in confirming the auditor’s report.</p>

220, to October and November Term 1869. This was an action of assumpsit, brought May 22d 1867, by the Franks Oil Company against William McCleary, to recover the sum of $125 assessments on stock in the plaintiffs’ company for which it was alleged the defendant was liable. In December 1864, a joint stock association was formed under the name of the Franks Oil Company: the capital being divided into shares of $100 each.

<p>1. For the purpose of avoiding a deed to bar an entail, evidence is admissible to show that the grantor was non compos mentis, or that being weak minded was imposed on.</p> <p>2. A common recovery is by the judgment of a court of record, and the infancy or insanity of the party suffering it cannot be set up against the record!</p> <p>3. Such judgment is regular and valid until reversed, and cannot be impeached collaterally.</p> <p>4. A deed to bar an entail is a matter in pais.</p>

201, to October and November Term 1869. This was an action of debt by “ Abner Tharp for the use of Alpheus Denman, now for the use of executor of E. S. Sayers, deceased,” against R. W. Downey. The cause of action was the following note: “ April 6th 1861. Six months after date we promise to pay Abner Tharp one hundred dollars. “ Simeon Dunn, [l. s.] “ R. W. Downey, [l. s.]” The note was assigned by Tharp to Alpheus Denman, and by him assigned to E. S. Sayers.

<p>1. An accountant at the request of parties stated the accounts between them as to mill accounts and made the calculation in the presence of the debtor, it was read over to him, he was satisfied with the arrangement and ordered the aocountant as his agent, to go with the creditor and ascertain from a miller the price of grain ; he ascertained the price and the balance due ; after the mill accounts were settled they were to lie over till they had a settlement of their other accounts. Held, to be evidence for the jury of an acknowledgment to take the case out of the Statute of Limitations.</p> <p>2. To take a case out of the statute, the acknowledgment must be so distinct and palpable in its extent and form as to preclude hesitation.</p> <p>3. A naked admission of indebtedness, not indicating the amount or nature of the debt or a promise to pay something without a reference to the sum to be paid is insufficient.</p> <p>4. A clear, distinct and unequivocal acknowledgment of a debt as an existing obligation, identifying it so that there can be no mistake as to what it refers, made to a creditor or his agent, takes a case out of the statute.</p> <p>5. If a debtor and creditor in the presence of a witness examine their books and state an account, and the debtor assents to it, it would be such acknowledgment.</p>

216, to October and November Term 1869. This action was in debt by Samuel Horner against John Neff, Joseph Dougherty, Thomas Wiley and Thomas Curl, on the following note:— -November 13th 1865. One year after date we or either of us promise to pay to Samuel Horner the just sum of Five Hundred Dollars in seven thirties for value received of him, whereunto witness our hands and seals. Interest to be paid semi-annually.

<p>1. A devise was “ Hamilton is to take the 100 aeres of land at my death, and pay $700 to each of my within-named heirs,” &c. Held, that the legacies were not charged on the land.'</p> <p>2. Hamilton having accepted the devise became personally liable for the legacies, and they could be recovered in assumpsit.</p> <p>3. The case was not within the jurisdiction of the Orphans’ Court under the Act of 24th February 1834, sect. 59 (Legacies Charged on Land).</p> <p>4. Legacies payable by a devisee bear interest from the time of the acceptance of the devise on the terms of the will.</p> <p>5. From the time of acceptance, when there is no clog or condition imposed on the possession or enjoyment, the devisee’s title takes effect.</p> <p>6. The devisee is entitled to immediate possession unless the land be held under an outstanding lease, and then he is entitled to the rents, &c., as landlord.</p> <p>7. The rule that legacies are not payable till the end of the year and do not bear interest till then, does not apply to legacies charged on the person of the devisee.</p>

<p>Error to the Court of Common Pleas of Fayette county: No. 32, to October and November Term 1869.</p> <p>This was an action of assumpsit, brought to June Term 1867, by Daniel Kaine against Alfred E. Meason. It was for the recovery of the one-third, the defendant’s proportion, of the purchase-money paid by the plaintiff for a farm which had been bought by the plaintiff, defendant and Eli Cope on joint account, the articles with the vendor by agreement between the three purchasers having been taken in the name of the plaintiff and Cope only: the object of the purchase was to resell the land on speculation.</p> <p>On the trial, January 21st 1869, before Gilmore, P. J., the plaintiff offered Eli Cope as a witness.</p> <p>He was objected to on the ground of interest, admitted by the court, and a bill of exceptions was sealed.</p> <p>Cope testified that in December 1865 the defendant requested him to join him in the purchase of the “ Shoaf farm the witness agreed to do so if the plaintiff would join with them in the purchase. The agreement was that it should be bought for the plaintiff, defendant and witness, each one-third. The article was to be in the name of the plaintiff and witness, because it was thought the defendant could make sale of the property better if his name was left out.' The article was drawn by the defendant, signed by Shoaf, Kaine and witness, and witnessed by the defendant. He went to Philadelphia to sell the land, but was not successful.</p> <p>The agreement for the purchase of the land was dated December 23d 1864, “ between James Shoaf, of the first part, and Eli Cope and Daniel Kaine of the other part, witnesseth that the said James Shoaf doth by these presents sell to Eli Cope and Daniel Kaine the farm bought by said Shoaf from Felix Hempstead. * * Cope and Kaine agree to pay the amount paid by said Shoaf to said Hempstead back to said Shoaf, and also to assume said Shoaf’s payment to said Hempstead, i. e. to pay the remainder back not already paid to Hempstead, according to article of agreement, between said Shoaf and said Hempstead. And also to pay $3000 to said Shoaf. Now the payment of the amount paid by said Shoaf to Hempstead is to be made on April 1st, A. D. 1864, to said Shoaf. Three thousand dollars also to be paid by said Cope and Kaine on the first day of April, or at any time thereafter, on the demand of said Shoaf. This three thousand dollars is a bonus paid by Cope and Kaine for Shoaf’s bargain with Hemp-stead. Said Shoaf is to remain in possession of said farm until April 1st, A. D. 1866. Said Cope and Kaine are to have free ingress and egress to all the land at any time from the date hereof, for the purpose of boring for oil, salt or other minerals or for any purpose connected with the business of boring, digging, &c. Cope and Kaine agree not to disturb said Shoaf’s crops more than is necessary. The deed is to be made directly to Cope and Kaine by Hempstead, according to article between James Shoaf and the said Felix Hempstead. Said Shoaf is to pay no rent for the farm from the first day of April, A. D. 1865 to A. D. 1866,” &c. * *</p> <p>“ Witness our hands and seals of the said parties the day and year first above written.</p> <p>James Shoae. L. S.</p> <p>Eli Cope. L. S.</p> <p>D. Kaine. L. S.'</p> <p>“ Test:</p> <p>“ A. E. Meason.</p> <p>The plaintiff gave evidence that he had paid $3335.33 of the purchase-money.</p> <p>The court (Gilmore, P. J.), after stating the substance of the evidence, charged, “ if the evidence is relied upon by the jury, the plaintiff is entitled to recover the one-third of the money which he has proved he has paid, with interest on the said one-third, from the several times of payment,” &c.</p> <p>The verdict was for the plaintiff for $1251.90.</p> <p>The defendant took a writ of error, and assigned for error the charge of the court and admitting Cope as a witness.</p>

<p>1. A failure on the part of a judge to reduce to writing his charge and answers to points is not assignable for error.</p> <p>. 2. In a joint action of trespass, the plea of “ not guilty” entered for both defendants, may be regarded as the several plea of each.</p> <p>3. The Act of April 14th 1851 (Dogs Killing Sheep), permits suit to be brought against all the owners of several dogs, which at one and the same time kill and wound sheep.</p> <p>4. All the owners are answerable for the act of killing.</p> <p>5. No scienter as to the disposition of the dogs need be shown.</p> <p>6. If dogs are kept, it is on the terms of paying for damage they may do in worrying sheep.</p> <p>7. Each owner is answerable for the whole damage done in which his dog is jointly engaged.</p> <p>8. The action would lie without proof of joint ownership of dogs when they did the mischief together. Per Thompson, C. J.</p> <p>9. Actual satisfaction is necessary to sustain the plea of “ accord and satisfaction.”</p> <p>10. A contract to pay at a future day the damages done, might be pleaded as a release or might avail as defence on the trial; but would not sustain the plea of accord and satisfaction.</p>

<p>1. If false or fraudulent representations be alleged as ground for avoiding a bargain it must be shown that they entered into the vital essence of it.</p> <p>2. This must be proved by a just inference from vrhat took place at or about the time of contracting and is not to be supplied by surmise or things equivocal in themselves.</p> <p>3. Whether a mill is in good or bad order does not relate to an occult quality.</p> <p>4. A false statement of a material matter will not overthrow a bargain unless the statement was the means of producing it.</p> <p>5. Where parties treat on the basis of trust and confidence, the rule is to hold the party making the representations bound by them.</p> <p>6. Such relation is never presumed in ordinary transactions where each may inform himself, then both the relation and deception must be proved to set aside an agreement.</p>

<p>Error to the Court of Common Pleas of Lawrence county: No. 49, to October and November Term 1869.</p> <p>On the 4th day of March 1865 Alexander Arbogast gave to Charles T. Ihmsen a bond for $6000 with warrant of attorney to confess judgment.</p> <p>On the 10th of October 1866 Arbogast, Ihmsen and John R. Gloniger entered into partnership for the manufacture of glass to continue for three years; Arbogast to contribute stock, tools, &c., to the amount of $6000 as his part of the capital; Ihmsen to contribute above-mentioned bond. Gloniger did not contribute any capital, but was “ to give his whole time and attention to the business of the firm, such as keeping books,” &c., each partner to share the profits and losses in unequal proportions, as specified in the articles. It was also stipulated, that at the termination of the partnership “ Ihmsen will be entitled to this bond, and Arbogast to the sum invested by himself.”</p> <p>The firm was dissolved by mutual consent in writing on the 17th of January 1867. At the same .dale the following agreement was entered into:—</p> <p>“ In the dissolving of the above-mentioned firm it is mutually agreed, between Alexander Arbogast and Charles T. Ihmsen, that the said Charles T. Ihmsen shall receive back and hold, for his own use and benefit, the bond of Alexander Arbogast for six thousand dollars, which he (Ihmsen) invested as capital in the firm of A. Arbogast & Co., and on this bond shall be entered a credit for seven hundred and fifty dollars,.the amount agreed upon, as due from Ihmsen for his portion of losses, being one-half the total estimated losses of the firm from its commencement to the dissolution.</p> <p>“ It is further understood and agreed that Charles T. Ihmsen is to assume the debt owing to the firm of A. Arbogast & Co., by his wife and daughter; on account of this debt he obligates himself to pay a certain note for five thousand dollars held by Thomas Baily, of Pittsburg; and should this amount be over what is owing by his wife and daughter, he is to have the difference refunded to him; and if, on the other hand, it falls short of the amount he is to make good the difference.”</p> <p>On the 18th of June 1867 judgment was entered in the Court of Common Pleas of Lawrence county on Ihmsen’s bond against Arbogast for $6000.</p> <p>On the 28th of June 1867 a fieri facias, No. 17, to September term 1867, was issued on Ihmsen’s judgment, under which Arbogast’s property was sold on the 11th, 24th and 25th of July.</p> <p>On the 20th of July 1867 W. Cunningham & Son sued Argo-bast on an account for merchandise, on which they recovered judgment, August 10th 1867, for $2030.67; a fieri facias, to September 1867, No. 44, was issued; to this the sheriff returned, “ Property levied and sold by virtue of writ, No. 17, September term 1867, see writ, No. 17, September term 1867.”</p> <p>The net proceeds of Arbogast’s property made on Ihmsen’s execution beyond costs, rent, &e., were $6125.87, of which by leave of the court the sheriff paid Ihmsen $3950 on account of his execution, leaving $2175.87 in the hands of the sheriff.</p> <p>On the 9th of December 1867 Cunningham & Son presented their petition to the Court of Common Pleas setting out their judgment and execution against Arbogast, and that they claimed so much of the proceeds of sale of Arbogast’s personal property as would satisfy their claim. They also alleged that there were material facts in dispute relating to the distribution of the proceeds of sale, and prayed for an issue to try those facts. There were five allegations of disputed facts; the court awarded an issue to try two, viz.:—</p> <p>1. Ihmsen’s judgment was fraudulent.</p> <p>2. The bond was paid by investing it in the partnership, and entering judgment on it afterwards and proceeding upon it were fraudulent.</p> <p>The issue was between W. Cunningham & Son, plaintiffs, and Charles T. Ihmsen, defendant.</p> <p>On the trial, February 16th 1869, before McGoffin, P. J., the facts above stated were given in evidence; also other facts for the purpose of proving fraud. The bond of Ihmsen had credits endorsed on it.</p> <p>The plaintiff’s points were :—</p> <p>1. The investment of the bond in question as capital stock in the firm of A. Arbogast & Co., amounted to payment and release, and discharged Alexander Arbogast from the obligation thereof.</p> <p>2. The bond having become the property of A. Arbogast & Co., was extinguished, together with the warrant of attorney thereto attached, and the judgment subsequently entered thereon by virtue of said warrant was without authority and void.</p> <p>3. During the time said bond was held by A. Arbogast & Co., the right of action thereon was suspended, and being thus suspended by the act of the parties, it could not again revive.</p> <p>The defendant’s points were:—</p> <p>1. The placing of the bond and warrant of attorney in the firm of A. Arbogast & Co., as stipulated for in the articles of copartnership, would not operate as a legal payment or satisfaction of the same, but the bond and warrant of attorney, during the continuance of said copartnership, wmuld be good and valid at law.</p> <p>2. The return of the bond and warrant of attorney to Ihmsen, according to the stipulations of the articles at the dissolution, would have the legal effect to render the same so returned in the hands of said Ihmsen as good and valid as before they had been placed as capital in the said copartnership.</p> <p>3. The placing of the bond and warrant of attorney in the firm of A. Arbogast & Co., stipulated for by the articles of copartnership, and their return to C. T. Ihmsen in pursuance of the agreement at dissolution, would render the bond and warrant good and valid in the hands of Ihmsen after their return, and no fraud having been proved, the verdict must be for the defendant.</p> <p>The court answered the plaintiff’s points as follows:—</p> <p>“ 1. Under the stipulations in the articles of partnership, and of the terms of the agreement made at the time of the dissolution of the firm in evidence before the jury, and in the absence of any proof as to the payment of the debt due on the bond by Alexander Arbogast in fact, we answer this point in the negative.</p> <p>“ 2. The first branch of the point in the negative, there being no proof before the jury that the bond in fact had been paid. And to the latter part of the point we say to the jury, that if Alexander Arbogast, upon the dissolution of the firm, with the consent of Mr. Grloniger, his partner, redelivered or handed back the bond with warrant of attorney attached, intending it to be a valid, subsisting obligation, he, Ihmsen, as the holder thereof, could, for his protection in the collection of the amount which might still be due thereon, enter up judgment under the said warrant of attorney as a valid, subsisting authority so to do.</p> <p>“ 3. The right of an action at law upon the said bond by the firm of Alexander Arbogast & Co., against Alexander Arbogast, one of the firm, might be considered as suspended during the existence of the firm, yet equity would keep it in force as a binding obligation for the protection of the interest of Ihmsen and Gloniger, his partners, and for the creditors of the firm, if any there were. And if, upon the dissolution of the firm under the agreement of partnership, as well as the stipulations of the contract at the dissolution thereof, Alexander Arbogast, with the consent of his partner, delivered the bond in good faith as a debt still unpaid by him over to Charles T. Ihmsen, after credits were endorsed thereon, he, Ihmsen, could subsequently enter it upon record and proceed to its collection unless the proof satisfied the jury it was aotually paid, but kept on foot to hinder, delay, or to prevent the creditors of A. Arbogast from realizing their debts out of the property of said A. Arbogast.”</p> <p>The court affirmed the defendant’s points. The verdict was for the defendant, and the plaintiffs took a writ of error, assigning for error the answers to the points.</p>

<p>Appeal from the decree of the Orphans’ Court of Lawrence county: No. 95, to October and November Term 1869. In the estate of George Leslie, deceased.</p> <p>George Leslie died July 31st 1859, having made his will dated on the 22d of the same month, and proved August 27th 1859. Besides other devises and bequests he provided as follows:—</p> <p>“ Fifth. I give and b.equeath unto my beloved wife, Martha Leslie, after all my just debts and funeral expenses are paid, and the foregoing bequest to my daughter shall also be paid, the one-third of all my personal property absolutely, and also the one-third of all the rents, issues and. profits of all my real estate, not herein disposed of and.including the whole use and occupation of my mansion-house, &c., during her natural lifetime, or so long as she remains my widow, and subject also to the following provision, viz.: It is my desire that my three daughters, Margaret, Harriet and Ellen, continue to reside with their mother so long as they remain unmarried or until her death, if they should' not marry before that time, and to use and occupy the mansion-house, &c., in common with their mother, and to have pasture, &c., so long as they remain with their mother.”</p> <p>“ Tenth. After the death or marriage of my beloved wife Martha, it is my will and I do hereby authorize and empower my executors hereinafter named, to sell by public or private sale as they in their discretion may deem best, all my real estate undisposed of by this will, and distribute the proceeds arising therefrom amongst my five daughters, viz.: Jane, intermarried with Edward McMillan, Martha, intermarried with William Vance, Margaret Leslie, Harriet Leslie and Ellen Leslie, equally, share and share alike. In making such sales it is my desire that the property be sold to the best advantage of the legatees, and I hereby give my said execntors full power and authority to make and execute deeds in fee simple to the purchaser or purchasers thereof, and to do and perform all such other acts as may be needful and necessary to perfect the title thereof to the purchaser or purchasers thereof as aforesaid.”</p> <p>He appointed his son John Leslie, and son-in-law William Vance, executors of his will.</p> <p>On the 25th of January 1861, the executors filed an account, viz.:— ♦</p> <p>“Partial account of John Leslie and William Vance, executors of the last will and testament of George Leslie, of Shenango township, Lawrence county, deceased.</p> <p>The said accountants charge themselves with all and singular the goods and chattels, rights and credits, which were of the said deceased agreeably to an inventory thereof filed in the register’s oflice of Lawrence county, amounting to, to wit:—</p> <p>September 22d 1859. Goods and chattels . . . $1274.20</p> <p>Cash, bonds, notes and other evidences of debt . . 3471.48</p> <p>Increase on sale of goods......... 53.18</p> <p>$4799.56”</p> <p>“ Accountants claim credit for the following disbursements, to wit:”</p> <p>Forty-six items (set out in detail) amounting in the aggregate to...........$2036.42</p> <p>“ Statement in explanation:—</p> <p>Goods and chattels appraised at ... . $1274.90</p> <p>Amount of goods sold.as per sale list . $ 471.17</p> <p>Amount taken by widow and legatees . 856.71</p> <p>$1328.00</p> <p>Increase on sale......... 53.18</p> <p>$1328.08</p> <p>Whole amount received by the executors in cash from the estate .... $1095.26</p> <p>Whole amount disbursed in cash . . . $1170.60</p> <p>Amount of cash disbursed over amount received .......... 75.34</p> <p>$1170.60”</p> <p>This account was confirmed, May 22d 1861.</p> <p>A citation was issued by the Orphans’ Court commanding the executors to file in the register’s office “ a final account and make a true settlement of the personal assets of said testator, as also of the rents, issues and profits of said real estate. * * *</p> <p>Also, an account and statement of the proceeds arising from the sale of said real estate,” &c.</p> <p>On the 12th of January 1867, in answer to this citation, they filed a final account:—</p> <p>In this account they charged themselves with the balance on their former account......$2759.93</p> <p>With interest received from a number of persons</p> <p>named; and with a judgment...... 1486.10</p> <p>' $4246.03</p> <p>They claimed credit for a number of payments for</p> <p>debts, expenses, &c., amounting to ... . $1486.01</p> <p>Amongst these credits were the following:—</p> <p>“ Mistaken amount of credit claimed for moneys paid S. D. Clarke & Co., in former settlement — see voucher No. 39 . ..........$ 20.00</p> <p>R. D. Allen’s note worthless ........70.00</p> <p>J. Hoffman’s note not collectable....... 50.00</p> <p>Amount paid to decedent in his lifetime, on note of J. Mayne..............12.00</p> <p>Amount of note of J. N. Lutton, not collectable . . 4.00</p> <p>Amount of moneys paid by James Patterson to decedent in his lifetime..........125.00</p> <p>Amount of note of James Leslie not collected and doubtful.............100.00</p> <p>Amount of note of James Hunter, in suit, and not collected .............. 150.00”</p> <p>Appended to their account was:— •</p> <p>1. A statement of payments “ on account of legacies under the will,” &c., amounting to......$2819.00</p> <p>2. “ Statement of their receipts and disbursements in their management of the real estate under the will,” &c. Rents received amounting to.........$160.00</p> <p>Expenses of repairs of conducting farm, &c. . . . 105.15</p> <p>Other payments on what account not specified . . . 573.09</p> <p>3. “ Statement of the disposition of real estate which hy will they were authorized to sell.”</p> <p>“ Tract containing about 195 acres sold, January 23d 1866, to Margaret Leslie for the gross sum of $12,000 payable in three equal annual instalments, the first of which has been paid.”</p> <p>Two other tracts for $1266.</p> <p>“Upon which several sales the accountants have received $5266” which they “ have heretofore tendered to the parties entitled, * * * and are yet ready and willing to pay.”</p> <p>This account was confirmed nisi, February 13th 1867. Jane McMillan, Harriet Barkley and Mary E. Fisher, daughters of the testator, and the administrator of the widow filed exceptions to the account.</p> <p>1. To payments to the legatees.</p> <p>2. To credits in partial account and in final account for payments to Robert Hopper.</p> <p>3 and 4. To credits for which the vouchers are not sufficient.</p> <p>5. To credits for debts due estate, as uncollectable.</p> <p>6. To the eight credits above stated, viz., “mistaken amount of credit for moneys paid to S. D. Clarke,” “ R. D. Allen’s note worthless,” &c., &c.</p> <p>Also to the account of the management of the real estate; and that the real estate was sold to Margaret Leslie at a grossly inadequate price. These exceptions stated specifically their grounds.</p> <p>The account and exceptions were referred to J. McMichael, Esq., as auditor to report the facts and restate the account if necessary!</p> <p>The auditor decided that the exceptions, so far as they related to the “ partial account,” could not be considered, that account having been closed up by its confirmation. He further reported:—</p> <p>“ The fifth exception is to credits claimed for uncollected and uncollectable claims due the estate.” * * *</p> <p>“ The sixth exception is to certain items of credit claimed in the final account, including the items in the fifth exception, on the ground that the accountants are concluded by the decree confirming the partial account. In the partial account the executors charged themselves with the inventory as filed, and that account showed a balance in their hands of $2763.14, without in any way explaining of what that balance was composed, whether of cash or of uncollected assets. In the items of their final account, included in this exception, they claim credit for a mistake in the partial account of $20, also for money paid by various parties to decedent during his lifetime on claims due him, amounting to $137, and for uncollected and uncollectable claims amounting to $374.</p> <p>“ I have decided that the partial account is conclusive of the matters contained in it; and, if that is correct, the executors cannot, on filing another account, correct the mistakes made in the first. If there were mistakes their remedy was a petition of review. These credits, amounting to $531, are therefore not allowed by the auditor.” * * *</p> <p>“ This disposes o'f all the exceptions but those which relate to the management and sale of the real estate.</p> <p>“ It is objected that the acountants have not charged themselves with the rents, issues and profits received by them from the management of the real estate, that they have not charged themselves with any proceeds whatever from the farm, called by witnesses the Homestead farm, nor for proceeds from the farm, called the Vance farm, for the years 1860, 1861 and 1862, nor with proceeds of timber sold by the executors off the land and for which they were paid.</p> <p>“ George Leslie by his will specifically devised certain tracts of his real estate, leaving a residue not specifically devised, which residue contains, 349 acres 3 roods 12 perches, as appears from the testimony. This residue, composed of parts of several different tracts purchased at different times, all lay together, the several parts adjoining each other, and the whole forming an irregular shaped tract. One part of this residue, with the exception of 40 acres, is called the Homestead farm. The mansion-house of the deceased stands on this part, and it contains 206 acres 3 roods 36 perches. The other part is called the Vance farm, and contains 142 acres 3 roods 16 perches.” * * *</p> <p>“ The exceptors claim that the accountants should be charged with the reasonable rents during the time they had the management of this real estate. To decide this it will be necessary to look at the character of the charge the executors had over this real estate.” * * *</p> <p>The auditor, giving the provisions in the appropriate clauses of the will, proceeds:—</p> <p>“ For land so encumbered and without any evidence of mismanagement, negligence or fraud other than results from the absence of a charge for profits, will it be said that executors should be surcharged with the amount of rent they might have received from property unencumbered, or indeed with any amount whatever ? The auditor cannot say with any degree of certainty that the executors did or could have possibly made any profits from this land and obeyed the instructions of the will. * * * * This exception is overruled.”</p> <p>“ The remaining exception is to the account rendered by the executors of the sale by them of the real estate of the testator.” * * *</p> <p>“ All the ‘ real estate undisposed of by the will,’ and to which consequently the power to sell extended, is the land before mentioned’ containing 349 acres 3 roods and 12 perches, and composed of the two farms called the Homestead farm and the Vance farm.</p> <p>“Martha Leslie remained the widow of the testator and occupied his mansion-house during her life, and died May 31st 1865. On January 23d 1866 the executors sold, by private sale, on articles of agreement to Margaret Leslie, the piece of land called the Homestead farm and a small pifece of what was called the Vance farm, for the gross sum of $12,000, payable,” &e. * * * “ The land so sold to Margaret was not surveyed by the executors, nor its quantity certainly ascertained by them. They estimated that it contained about 195 acres.</p> <p>“ Indeed the location of the line which should separate this from the rest of testator’s lands to be sold by the executors, was not, and is not yet definitely fixed; but John Leslie, one of the executors, states that this sale to Margaret was intended to include all the lands of the testator which the executors had power to sell, except 125 acres of the Vance farm. This would require Margaret to get 17 acres 3 roods and 16 perches of the Vance tract. And the testimony shows that there is now fenced and she is occupying 18 acres and 29 perches of that tract, in common with the Homestead farm.</p> <p>“ From this it appears that the actual amount of land sold by the executors to Margaret was 224 acres 3 roods 12 perches.</p> <p>“ It is to this sale to Margaret that the exceptors object.” * * *</p> <p>“ A large amount of testimony was taken on this exception, and in some particulars it is contradictory. The auditor having examined the testimony with care, finds that it establishes the following facts:—</p> <p>“ The actual amount of land sold to Margaret by the executors is 224 acres 3 roods 12 perches, though it does not appear that either the executors or Margaret knew the quantity at the time of the sale.” * * *</p> <p>“ On June 2d 1865 Edward McMillan, in presence of Robert S. Henderson, a witness, said to John Leslie, the executor who appears to have done most of the business, that the time had now come to carry the will into execution, meaning the time had come to sell this land. This was the second day after the death of the testator’s widow. McMillan then offered the executor or made a bid to him of $75 per acre for the Homestead farm, which as they then understood it, included all afterwards sold to Margaret but the corner out of the Vance farm as before described. McMillan went for the express purpose of making a bid to John Leslie for this farm, and took a witness with him. He told Leslie the time had arrived to make sale under the will, and gave Leslie notice that his (McMillan’s) wife wanted her father’s will carried into effect. Leslie neither accepted nor refused the bid. The bid was not stated to be a standing one; it was not afterwards repeated nor was it withdrawn. Leslie appears to have understood it to have been a standing bid to be accepted by him at any' time, as the testimony shows that he spoke frequently in the latter part of the year 1865, of the fact that he was offered $75 per acre by McMillan.” * * *</p> <p>“ John Leslie afterwards in speaking of this bid said he thought it was made by way of a taunt; and at another time expressed the idea that it was made in indecent haste after the death of his mother. McMillan at the time he made this bid and subsequently was the owner of property, real and personal, worth about $7500, and there is some evidence that he had made and was making arrangements to get assistance to pay for this property, if he purchased it, but he did not communicate this to the executors. When Margaret purchased she appears to have owned only what she received under her father’s will. The evidence shows that she was unmarried, about 50 years of age and somewhat delicate in health.</p> <p>“ The executors made some, though not a great effort to sell this land before it was sold. They gave notice that it was for sale, asked some parties to bid on it, but in every instance of that kind they informed the persons requested to bid that they had a bid of $75 per acre for it. The community knew the land was for sale and likewise that the bid of $75 per acre had been made. The executors in the fall of 1865 had a notice that this land was for sale inserted three successive times in two of the weekly newspapers published in New Castle. It was advertised for private sale.” * *'*</p> <p>“ From these facts the auditor concludes that this land was sold for a price far below its value. The executors say they estimated about 195 acres in the tract, and sold it for that amount. I do not know from what data they made these estimates. John Leslie did not himself feel certain that he knew the amount of land there. The most that can be said is, he guessed at the quantity. The sale was not made by the acre but by the tract, and it may be said, it was not necessary to know the contents. Yet I cannot but think that as trustees they should have known how much land they sold. That knowledge would certainly have assisted their judgments in fixing a price, had they been desirous to perform their duty faithfully, and especially so in this case, as $75 an aere had been offered for it, and John Leslie either understood this to be a bond fide continuing offer or his conduct respecting it is strong evidence of fraud on his part.” * * *</p> <p>“ It is argued McMillan had not the ability to pay.. It is true he had not the means to pay the whole price down; few men who purchase farms have such means. He had as much means as perhaps the majority of men purchasing farms have. As much at least as Margaret Leslie had to whom they sold, and enough to secure with the land itself the payment of the purchase-money, or pay any damages that might result from its non-payment.</p> <p>“McMillan’s bid was the value of the land, at the time, no more. If then the executors had accepted this bid as they should have done before selling for less money, or even had they only undertaken to inform themselves what amount the farm would bring at this price, they would have measured the land and not have sold it for so much less than it actually contained, but the history of error shows that one default always leads to another.</p> <p>“ Viewing this transaction in this light I am’ of opinion that it shows such negligence, such default on the part of these executors acting as they were in the capacity of trustees, as brings the case within the rule stated by Judge Rogers in Moore’s Appeal, 10 Barr 438, that a trustee may be surcharged beyond the actual profits where there is satisfactory proof of supine negligence or wilful default; and therefore surcharge the executors with the difference between the price they did receive, $12,000, and the price I find from the evidence they might and should have received, $16,861.87J, which difference is $4861.88§-.”</p> <p>The auditor on the basis of his findings stated a final administration account against the executors, which showed a balance in their hands of $3202.86.</p> <p>“ As to the statement or report of the disposition and sale of the real estate, the executors are surcharged with $4861.87|, so that instead of accounting for $12,000 as proceeds of sale of land sold to Margaret Leslie they shall account for $16,861.87|-as the price of said land payable in three equal annual instalments, the first instalment payable April 1st 1866.</p> <p>“ The auditor decides that the costs of this audit shall be paid by the executors.” ‘</p> <p>Exceptions were filed by the executors to the report of the auditor. The court confirmed the report and ordered the executors to pay all the costs.</p> <p>The executors appealed to thS Supreme Court and assigned for error:—</p> <p>1 and 2. Surcharging them with $4861.87 in the sale of the real estate in their administration account of the personalty, they being trustees and their account as such not being before the court.</p> <p>3. Not allowing the credits which the auditor struck from their administration account.</p>

<p>1. The mistake of a scrivener in preparing a writing may be shown by parol evidence, and the instrument reformed accordingly.</p> <p>2. Such reformation is an exercise of the equity powers of all our courts.</p> <p>3. Equity relieves against mistake as well as against fraud.</p> <p>4. In a voluntary conveyance our courts will not distinguish between children and grandchildren in the exercise of their equitable powers in correcting a plain mistake in a conveyance intended for their benefit.</p> <p>5. This would be especially so when the correction is made to render valid and effectual what would otherwise be void-for informality.</p> <p>6. Mistakes may be so apparent on the face of an instrument that courts will construe it as it ought to have been drawn.</p> <p>7. The liberality of courts has been particularly exercised as to the statement of the consideration both in correcting what is wrong and inserting what has been omitted.</p> <p>8. “Grandchildren” substituted, by parol evidence, for “heirs of my son,” in a deed in this case.</p>

<p>Error to the Court of Common Pleas of Beaver county: No. 222, to October and November Term 1869.</p> <p>This was an action of covenant, to September Term 1867, brought by Charles H. Shreiner against Samuel P. Cummins for the balance of purchase-money on a tract of land sold by Shreiner to Cummins. The facts which gave rise to the controversy are these:—</p> <p>On the 7th of July 1858 Shreiner conveyed to Cummins two tracts of land in Beaver county. It appeared that on the same date Cummins conveyed land to Shreiner. At the same time the parties entered into this agreement in writing, but not under seal:—</p> <p>“We do hereby agree that if either of the undersigned wishes to survey the land purchased from the other, he can do so ; and in case either tract overruns, the buyer is to pay for the overplus, and if either falls short, the seller is to make it up.”</p> <p>On the 10th of December 1864 Shreiner by articles sold to Cummins a tract of land in Wisconsin for if1050; the purchase-money to be in part discharged by the payment by Cummins of certain liabilities of Shreiner specified in the articles. The articles contained this additional stipulation:—</p> <p>“ It is also agreed that an alleged deficiency in the measure of the land traded between Shreiner and Cummins, is to be submitted to Hon. Thomas Cunningham ; his decision to be final; and if any balance should be found thereon against Shreiner, said balance is also to be a credit for Cummins on said 160 acres of land sold by this agreement.”</p> <p>Cummins paid the liabilities of Shreiner as agreed upon in the articles; this left a balance still due Shreiner; for that balance this action was brought. Cummins alleged that on a survey which had been made of the land, in Beaver county, sold by Shreiner to him there was a deficiency in the quantity, the value of which he claimed to set off against Shreiner’s claim under the covenant.</p> <p>The court charged:— * * *</p> <p>[“The plaintiff contends that the Statute of Limitation had barred any claim which the defendant might have had against the plaintiff for a deficiency in the quantity of the land conveyed by the deed of 7th July 1858, and that there is not that explicit recognition of the original contract and promise to pay for said deficiency in the article of agreement of the 10th December 1864 which would take the case out of the statute and enable the defendant to recover. Whether it be true or not that the defendant’s claim founded on the writing of 7th July 1858 was barred at the date of the Wisconsin article, we are of the opinion that the parties intended by the clause in the article to which we have referred, to revive the claim and give it the same force and effect it originally had.] It is one of the terms of the Wisconsin agreement that the alleged deficiency in the Beaver land should be ascertained and settled, and this may have been the inducing cause with the defendant to enter into it. .</p> <p>[“But the plaintiff further objects that the parties undertook to create a tribunal of their own for the determination of this disputed question, and that the defendant therefore cannot claim .to have it inquired into and settled in this suit. Hon. Thomas Cunningham, to whose final arbitration it was submitted, died without having heard the parties or making an award. The act of God injures no one, and the law will remit the parties to the proper legal tribunal to settle their rights.] It is further urged by plaintiff that the defendant can only make use of his claim, under his plea of set-off as a credit against the purchase-money remaining unpaid in the contract.” * * * [“The plaintiff asks us to instruct you that you can apply the estimated value of this deficiency only by way of credit to reduce or defeat the plaintiff’s cause of action, but that the defendant cannot recover for any excess to which he might otherwise have been entitled, by means of a certificate at your hands. We think, however, that such an interpretation would be too narrow to fulfil the intention of the parties.” * * *</p> <p>“ Taking into view the original writing accompanying the deed and its subsequent recognition in the agreement of December 10th 1864, we are of opinion that to limit the defendant’s claim upon his set-off by what may now be due on the article, and deny him the right to hold the plaintiff accountable in this suit for all that the deficiency in the land may be fairly worth, would not accord with the true intent and meaning of the contract. We therefore instruct you that if you believe the evidence, the defendant is entitled to recover the Whole amount of his set-off, to be applied first, to the balance of the purchase-money coming to the plaintiff on the contract, and for what may remain the defendant is entitled to a certificate in his favor.”]</p> <p>The jury found for the defendant and certified in his favor for $-.</p> <p>The plaintiff took out a Writ of error and assigned for error the parts of the charge embraced in brackets.</p>

<p>1. A verdict was rendered October 23d 1867, and a rule for a new trial granted March 28th 1858. Held to be error, no such motion could be made and granted so long after verdict.</p> <p>2. The motion would have been too late under any circumstances whilst the judgment stood in full force.</p> <p>3. The order granting the new trial was reversed in this case.</p>

<p>Error to the Court of Common Pleas of Crawford county: No. 145, to October and November Term 1869.</p> <p>This was an action of assumpsit to February Term 1867, by The Titusville Gas and Water Company, to the use of Stephen Parish, against George Custar, for the recovery of his subscription for 10 shares of the capital stock of the plaintiffs.</p> <p>The company was incorporated February 17th 1865, with a capital of $50,000, in shares of $50 each, with privilege to the directors to increase the same.</p> <p>Sect. 5 provided that if any subscriber should neglect to pay any instalment called for by the company at the time and place appointed and it shall remain unpaid for 30 days he shall in addition to the instalment pay interest for the delay at the rate of 5 per cent, per month, and the company may recover the said instalment and interest or forfeit the amount already paid as the directors may choose.</p> <p>The plaintiffs gave in evidence a subscription paper for stock of the company, signed October 30th 1865 by the defendant (amongst others) for “ Ten shares — $500.”</p> <p>They gave evidence that the first instalment was called January 22d 1866, for 10 per cent., payable immediately; the second payable May 5th for 10 per cent.; four other instalments, of 20 per cent, each, were called, payable respectively June 9th, July 14th, August 27th and September 25th 1866.</p> <p>The defendants offered to prove: by Joseph Barnsdall, “ That lie is a subscriber to the capital stock of the company of plaintiff for ten shares made before the subscription of the defendant; and that when he made his subscription the president of the company agreed with him that he should not be called on to pay said subscription, and thus to show a fraud on bonfi fide subscribers, to be followed by evidence of like agreements with other subscribers.”</p> <p>And by J. H. Broas, “ That he was induced to subscribe to the stock of the company by the declarations of the president and secretary, acting for the company, that the subscriptions made were bond, fide, and he was induced to change his subscription from six shares to twenty-six shares, on receiving from the president of the company a release in writing, from the payment of the twenty shares, and that he was a subscriber before the defendant, for the purpose of showing fictitious subscriptions that would be a fraud on the defendant.”</p> <p>Also “ that the subscriptions of many others of the subscribers were those of irresponsible persons.”</p> <p>These offers were all rejected, and several bills of exception sealed.</p> <p>The defendants gave in evidence the minutes of the company of August 11th 1865, showing that on that day 1000 shares— $50,000 — the authorized capital stock — had been subscribed; also, minutes of October 18th 1865, showing that the subscribers to the above 1000 shares of stock had transferred them to J. N. Angier and others; also, an act approyed Eebniary 17th 1865, repealing so much of the act of incorporation as provides for the payment of interest at 5 per cent, per month for delay in paying instalments.</p> <p>The plaintiffs, in rebuttal, gave in evidence their minutes of October 18th 1866, at which time it was resolved that the capital stock be raised to $75,000; also, resolved that J. N. Angier, &c., be requested to transfer back to the company the stock which “they obtained from the original stockholders.” The request was “acceded to by Messrs. Angier,” &c. It was also resolved that the secretary open a stock book and solicit subscriptions, &c.</p> <p>The defendant requested the court to charge the jury:—</p> <p>“ 1. That if they find that $50,000 of the capital stock of the Titusville Gas and Water Company was subscribed and taken before the date of the subscription of defendant, and that there had been no resolution by the board of directors increasing the same, prior to that date, the company had no stock for which the defendant could subscribe, and the plaintiff cannot recover in this action.</p> <p>“ 3. That the act of the 15th of April 1869, having repealed so much of the act of incorporation of the Titusville Gas and Water Company, approved the 17th day of February 1865, as allowed a penalty of five per cent, per month on subscriptions not paid, the plaintiff cannot recover the same, there being no law now in force authorizing the collection thereof.</p> <p>“ 4. The act of the 17th of February 1865, being a private act of legislation, the penalty imposed by its provisions for the non-payment of subscriptions cannot be enforced unless, the defendant is shown to have had actual notice thereof.”</p> <p>The court (Vincent, J.) charged:—</p> <p>“ The date of October 18th 1866, under which the transfer of stock to the company was made, and stock book as claimed opened, is so clearly a mistake, that we treat it as of the proper date, viz. October 18th 1865, for the very next entry is Nov. 14th 1865, and the next December 11th 1865, at which time the subscription to stock was reported, which includes that of the defendant in this suit.</p> <p>“The subscriptions then reported amounted to $57,600, of which $20,000 had been subscribed before defendant made his subscription. * * *</p> <p>“ The defendant subscribed for ten shares, or $500 worth of the stock of the company.</p> <p>“’The directors of the company called for his subscription at various times until the whole amount was called for — no part of the amount subscribed has been paid.” * * *</p> <p>“ Some time after the last call was made, this suit was brought to recover the said subscription, with the interest allowed by the act of incorporation.” * * *</p> <p>“We think the defendant is liable to the plaintiff for the amount of his subscription, if he had notice of the calls made by the company.</p> <p>“ But the defendant contends that even if the plaintiff is entitled to recover, he can recover only the amount of his subscription.and legal interest, or six per cent, per annum, and not five per cent, per month or' sixty per cent, per annum. The act of incorporation calls this five per cent! per month ‘ interest,’ and says, the delinquent subscriber shall pay it in addition to the instalment called for, if he fails to pay for a period of thirty days after the time fixed for payment, and authorizes the company to sue for and recover ‘said instalment and interest thereon,’ or if any money has been paid, to forfeit that, at its option.</p> <p>“ There is no provision for forfeiting or selling the shares as in most acts of incorporation. It is contended that this five per cent, per month is a penalty imposed upon the delinquent subscriber, and no part of the contract — that being a penalty it can only be collected by force of the statute authorizing it, and that inasmuch as by an act approved April 15th 1869, the legislature has repealed so much of the 5th section of the act of incorporation as allows the plaintiff to ‘ sue for and recover’ this five per cent, per month, the right to recover for that is gone.</p> <p>[“We are not without a doubt as to the amount of interest allowed by the act of incorporation, but we think the interest payable is as much part of the contract as the subscription itself, and that the company’s right to the interest was as much a vested one at the end of thirty days after the call, as the right to the instalment.]</p> <p>“If the right was thus vested, the legislature could not take it away, and for the purposes of this case we charge, that the right was so vested, and the plaintiff is entitled to recover both instalment and interest, subject to your opinion as to the fact of notice having been given as we have before stated.</p> <p>“We answer defendant’s points as follows:—</p> <p>’“1. We cannot answer this as requested, because the minutes of the company show, that at the time the defendant made his subscription, all the stock taken August 11th 1865, had been revested in the company, and beside that $25,000 of new stock had been created, none of which had been subscribed, nor was it all subscribed when the defendant made his subscription.</p> <p>“3. We answer this in the negative.</p> <p>“4. We answer this in the negative. The act of incorporation was spread out in full upon the books of the company before subscriptions were made.”</p> <p>The verdict was for the plaintiffs for $1298.75.</p> <p>The defendant took a writ of error and assigned for error:—</p> <p>1, 2 and 3. The rejection of his three offers of evidence.</p> <p>4, 5 and 6. The answers to the points.</p> <p>7. The part of the charge in brackets.</p>

<p>1. Hart was burgess of Girard borough and Wright was a councilman; in April 1863 the borough resolved to pay f>300 each for recruits under the call for July 1864: it was agreed that “each member should act as agent and hire a man if he could.” Hart and Wright procured seven recruits, but before they were mustered in the quota was filled; they then transferred the recruits to another district at a higher price. In a suit by Girard for the difference, the plaintiffs’point was: “The council were ex oifieio agents of the corporation, they may act as a body corporate, they may agree that each may represent the whole in any particular transaction, and if the council did so agree among themselves their authority was ample and both are bound by the transaction in putting the men in.” The court affirmed the point, “ provided that was a general authority for all drafts and not confined to the particular one.” Held to be correct.</p> <p>2. H^rt v. G'irard, 6 P. P. Smith 23, recognised.</p>

<p>Error to the Court of Common Pleas of Lawrence county: No. 77, to October and November Term 1869.</p> <p>This was an action of debt commenced, August 2d 1860, by Maria Bredin against Robert Gilliland and Joseph Morrison, executors, &c., of Josiah Hutchman, deceased. The action was for a legacy under the will of Margaret A. Hutchman, the wife of Josiah Hutchman, the above-named decedent. The will of Mrs. Hutchman was dated April 2d 1849, and directed amongst other things as follows:—</p> <p>“ It is my will that if Esther Maria Bredin shall continue under the direction of my husband, Josiah Hutchman, until she arrives at the age of twenty-one years, she shall receive the sum of one hundred dollars.” * * * “ The whole residue of all my estate of every kind or description, I will and bequeath to my well beloved husband, Josiah Hutchman, and I hereby constitute and appoint him the sole executor of'this my last will and testament, &c.”</p> <p>Esther Maria Bredin is the plaintiff in this suit.</p> <p>On the 7th of June 1861, on motion of the plaintiff’s attorney, the court directed judgment for the plaintiff for default of appearance, the prothonotary to liquidate the damages; they were assessed June 22d, at $210.66.</p> <p>On the 10th of January 1865 the court granted a rule to show cause why the judgment should not be opened, which on the 28th of June 1867 was made absolute, “ the plaintiff to file a declaration ■within ten days — the defendant to plead, and put the case to issue within five days thereafter. The ease now directed to be put down for trial at September term , next and to be tried without delay or continuance. The lien of the judgment to continue and no objection to be taken to the form of action or jurisdiction of the court.”</p> <p>The plaintiff declared in debt against Gilliland as executor of Hutchman’s will, for the legacy under Mrs. Hutchman’s will. The defendant, amongst other pleas, pleaded “ nil debet, payment and payment with leave, &c.”</p> <p>He pleaded also that the plaintiff did not continue under the direction of Plutchman till she came of age, &c.; also that Hutchman had only the estate of Mrs. Hutchman in his hands as her executor, and never became liable to pay her legacy, &c.; also, that the declaration was “ against an executor of an executor.”</p> <p>He demurred also for the same reason as the last plea.</p> <p>One of the plaintiff’s replications was: — ■</p> <p>“ That she did remain under the direction of the said Josiah Hutchman so far as in her power, that when she was but about seventeen years of age said Josiah Plutchman was taken sick and on some time prior to his death he did not assume the direction or control of said plaintiff — that he, the said Josiah Hutchman, had left his home for medical treatment and remained away from home a long time; that when said plaintiff was between eighteen and nineteen years of age he, the said Josiah Plutchman, died, making it altogether impossible for said plaintiff to remain under his direction until she was twenty-one years of age. That her parents, both father and mother, were living, and by the laws óf God and man her guardians and to whom she owed obedience, all of which the said Mrs. Hutchman well knew at the time she made her will.”</p> <p>She also replied that Hutchman was residuary legatee as well as executor and took possession of all the decedent’s estate; that he never filed an inventory or settled an account.</p> <p>On the trial before McGoffin, P. J., it appeared that letters testamentary were granted to Hutchman, the executor, who took possession of all the estate, but never filed an inventory. Hutch-man afterwards married a second time. There was evidence that the plaintiff in 1854, when she was about eighteen years of age and after the second marriage of Mr. Hutchman, left his residence during his absence from home; stating that she left because she she was going to be married, and because she and Mrs. Hutch-man did not agree.</p> <p>The defendant requested the court to instruct the jury :—</p> <p>1. That the plaintiff cannot recover against the executor on the first count in the declaration because therein she claims to charge him as the executor of an executor.</p> <p>4. That if she (plaintiff) did not comply with and perform the condition of the will, she is not entitled to the legacy, and cannot recover on the first count in the declaration.</p> <p>5. That by the plaintiff’s replication she has driven herself into the Orphans’ Court for her remedy, if she has any, and cannot recover in this Court of Common Pleas.</p> <p>The court answered:—</p> <p>“ 1. The answer to this depends on the fact as to whether Mr. Hutchman in his lifetime, or Mr. Gilliland as his executor, appropriated the estate to their own use or the use of the estate of Mr. Hutchman. In that case it would become an ordinary debt of Hutchman, and his executor would have to account for it as any other debt, Mr. Gilliland not being held as trustee himself in any way. This has reference to the legacy bequeathed by Mrs. Hutchman.</p> <p>“ 4. We answer this point in the negative, and we hold and so instruct you that inasmuch as this is a devise of personal property and the non-performance of the condition would not defeat the vesting of the right to recover, inasmuch as there is no limitation over, nor under its provisions does it pass into the devise of the residue of the estate — there being no provision that it shall so become a part thereof.</p> <p>“ 5. This point we pro forma answer in the negative, and instruct you that the plaintiff need not originate her proceedings in the Orphans’ Court, reserving the question for decision hereafter, as to whether the remedy is in the Orphans’ Court.”</p> <p>The jury found for the plaintiff for $337.08.</p> <p>The court afterwards entered judgment on the verdict on the reserved point.</p> <p>The defendant took out a writ of error' and assigned for error, that the court erred :</p> <p>In opening the judgment on the terms that the defendant should take no objection to the jurisdiction or form of action; in deciding that the defendant had waived objecting by accepting the terms and going to trial; in the answers to the points and entering judgment on the reserved question.</p>

<p>1. Rynd agreed with Watson for the exclusive right of digging for oil, &c., on a farm, Rynd to have one-fourth, and in case, after a reasonable experiment, Watson should be satisfied that oil, &c., could not be found in quantities profitable to both parties the lease to determine and the possession to revert to Rynd;-Watson not to interfere with Rynd's farming; “should oil, &e., be found in profitable quantities this is a perpetual lease.” On part of the land the boring, &c., had been profitable; Rynd alleging the working had not been profitable on another part, brought ejectment for that. Held, that ejectment would not lie to test Rynd's right to bore for oil, &c.</p> <p>2. Ejectment under the agreement would lie if Watson had occupied the land for other purposes, or to an extent greater than allowed by the contract, or if the license was revocable or had been forfeited by Watson.</p> <p>3. When the license was entered upon and made effectual by Watson's performance of the covenants and a successful result of the experiment, it became perpetual and irrevocable.</p> <p>4. Whether the license was exclusive, not decided.</p>

<p>Error to the Court of Common Pleas of Erie county: No. 185, to October and November Term 1869.</p> <p>This was an amicable action of assumpsit, commenced May 15th 1866, between The National Newark Banking Company, plaintiffs, and The Second National Bank of Erie, defendants.</p> <p>The suit was on the following draft:—</p> <p>“Second National Bank on Erie,</p> <p>Erie, Pa., March 17th 1866.</p> <p>Pay to the order of A. Judson, Esq., three hundred dollars.</p> <p>Wm. 0. Curry,</p> <p>Cashier.</p> <p>To Culver, Penn & Co., New York.</p> <p>The draft was afterwards endorsed by Judson, who sold it to the plaintiffs on the 27th of March; it was presented for payment on the 28th of March, payment was refused and the draft was duly protested. The facts of the case are stated fully and in detail by Mr. Justice Read in delivering the opinion of the Supreme Court.</p> <p>The court below (Derrickson, J.), after referring to the facts, charged:—</p> <p>“ I am not aware at this moment of any decision which defines the time within which a bill must be presented, but all the authorities say it must be within a reasonable one. What this will be in any one given case, would very seldom, if ever, answer for another, because the circumstances attendant on each are so varied and different, and in most cases it would be a question of fact for the jury to pass upon, and it would be so now, were there any disputed facts arising out of the testimony, which there are not. Admitting, then, what the witness testifies to be true,' we think it affords no excuse for the delay, which we also think was unreasonable. That the Newark Bank itself is free from the charge we readily admit, but not from that of its endorser, for the time which had elapsed was patent on the face of the bill. What is thus said will answer the several points made by the counsel of the plaintiffs.”</p> <p>The verdict was for the defendants.</p> <p>The plaintiffs took a writ of error, assigning the charge for error.</p>

<p>1. Davidson by articles sold to Barclay, who took possession, and after-wards went into the army, his family remaining. Anderson being an inmate of the family and Mickey a renter of one room, Davidson brought ejectment against Anderson and Mickey to enforce performance, obtained an award, to be released on condition, which not being performed, he took possession, all during Barclay’s absence. Held, that Barclay was not concluded.</p> <p>2. Barclay being in military service was not liable to suit and could not be deprived of his exemption by indirection.</p> <p>3. If the writ had issued against Barclay the court would have abated it.</p> <p>4. Mickey had no such possession as would make an ejectment against him a remedy for specific performance.</p> <p>5. Mickey did not represent Barclay’s possession nor the whole premises bound by the contract.</p> <p>6. Mickey’s was not the case of a tenant occupying under an absent vendee and bound to notify his landlord.</p> <p>7. Barclay was in the principal possession by his family, and entitled to service.</p> <p>8. A vendor cannot enforce performance of an entire contract by ejectment against a tenant of a single field or room. /</p> <p>9. Proceeding in equity for specific performance requires the object to be fully set forth to make an available decree.</p> <p>10. A bill setting forth a single room as the subject of the contract would be imperfect.</p> <p>11. A vendee not summoned, whether by bill or ejectment, would not be affected by a judgment against one who did not represent fully and truly the entire subject of the contract.</p> <p>12. The articles were that the purchase-money should be paid in 1870, interest payable on it half-yearly, and if interest remained unpaid for thirty days Davidson might declare the principal due and collect it immediately. Held, that if the interest had been overdue Davidson could not rescind the contract.</p> <p>13. The interest in fact was not overdue when the condition under the award was broken. Held, that Barclay might show this in an ejectment against Davidson.</p> <p>14. Davidson’s entry under the award was without effect, and he was in no better position than before.</p> <p>15. The rent of the premises after Davidson’s entry was equal to the interest ; he could claim no interest without surrendering possession.</p> <p>16. When Barclay brought this ejectment, the principal not being due, he was not required to make a tender.</p> <p>17. Barclay returned from the army in 1865, Davidson having entered in 1863, and made improvements. Barclay was not estopped by silence nor bound to pay for these improvements.</p> <p>18. Silence estops only when it is a fraud.</p> <p>19. The fact that the improvements were valuable did not vary this: value alone is not a criterion of equity.</p> <p>20. It would be against public policy and in conflict with Barclay’s dominion over his property to allow Davidson for the improvements made in prosecution of his illegal act and against Barclay’s will. !</p> <p>21. The unmolested enjoyment of possession is as much a right of property as the ownership of the title.</p> <p>22. The kind ,of improvement necessarily controls the enjoyment.</p> <p>23. Delay, where the purchaser must pursue his contract promptly, is a reason for controlling the performance in equity.</p> <p>24. After Barclay’s return Davidson made other improvements: it did not appear that Barclay knew his rights and acquiesced. Held, that he was not estopped to claim the land, but his recovery must be on terms to pay for the latter improvements.</p> <p>25. Barclay’s remissness after his return in investigating Davidson’s right is a ground of equity as to improvements.</p> <p>26. The amount being unliquidated, Barclay was not bound to make a tender.</p>

<p>1. As a general rule inconsistent remedies cannot exist at the same time either in tort or on contract.</p> <p>2. An action of ejectment to enforce specific execution is governed by the same principles as a bill in equity.</p> <p>3. If in such action, in the opinion of the judge, the facts would move a chancellor to decree specific execution, he should give a binding instruction to that effect.</p> <p>4. The jury is not to administer the equities further than to find the facts.</p> <p>5. Under the circumstances in this case the judge properly charged that the plaintiff had no equity.</p>

<p>1. The rule is that a private corporation has the general right to surrender its franchises.</p> <p>2. Corporations, like individuals, die by the decay or loss of their vital functions.</p> <p>3. The surrender of a franchise is the voluntary death of a corporation, and is one mode by which it ceases to exist.</p> <p>4. The right when both the state and the corporation consent to the surrender of a charter, absolutely or on condition, cannot be disputed.</p> <p>5. In the act incorporating Jefferson College it was provided that its constitution should remain irrevocable and should not be altered by the trustees nor in any other manner than by the legislature. Held, to be a reservation to the legislature to alter the charter.</p> <p>6. Jefferson College was chartered in 1802, and located in Canonsburg; it created scholarships, a number of which were sold. In 1865 an act was passed for uniting it with Washington College, under the name of Washington and Jefferson College: the trustees of Jefferson surrendered their charter, accepted the new one, the holders of scholarships knowing of it and making no objection. This was conclusive on all parties interested.</p> <p>7. The certificates of scholarships stated that they were for the endowment of Jefferson College: this designation did not alter the matter. They were contracts for tuition in consideration of a prepaid subscription and are to be interpreted as ordinary contracts.</p> <p>8. The contracts under the scholarships were personal to the corporation, and it could perform or offer performance anywhere, whether at Washington or Canonsburg.</p> <p>9. The contracts bound the parties without designating the place.</p> <p>10. The party liable is liable wherever found.</p> <p>11. It is not an incident to the contract that it was to be performed at Canonsburg.</p> <p>12. Incidents of contracts may be changed without impinging on the constitutional prohibition against impairing contracts.</p> <p>13. Every contract is made subject to the legal contingencies which may affect it or to which the parties may be subject.</p> <p>14. If a contract be with a corporation to be performed in future, the contingency of existencep must be regarded as having been in view as between man and man.</p> <p>15. This risk is taken by both parties.</p> <p>16. An act in 1869 authorized the removal of Jefferson College from Canonsburg to Washington; this was within the power of the legislature, although the scholarships were purchased whilst Jefferson College was at Canonsburg.</p> <p>17. Jefferson College having accepted the Act of 1865, uniting it with Washington College, ceased to exist under its original charter, and no suit could be maintained in its name.</p>

<p>1. Sons of a decedent received advancements from their father and executed receipts to him for the sums with releases in full of their shares of his estate. Held, on his death intestate, that they were estopped from claiming any part of his estate.</p> <p>2. The rights of an heir as to real or personal estate depend in Pennsylvania on statutes excluding the heirs at common law.</p> <p>3. An heir or expectant devisee or legatee may, in the lifetime of the testate or intestate, sell or assign his expectant or contingent interest, and if the contract be on a valuable consideration equity will enforce it.</p> <p>4. A father may make a contract with a child which will bar all his claim as heir to his father’s estate.</p> <p>5. Such release by the child should be clear and unambiguous; the intention should be manifest.</p>

<p>1. The refusal to open a judgment or set aside the liquidation is not a subject of error, where the decision depends on extrinsic facts which must be determined on the evidence.</p> <p>2. In such case there is no bill of exceptions to bring up the evidence.</p> <p>3. Execution without a scire facias may issue on a-judgment entered by warrant for a penalty in a bond with condition for indemnity.</p> <p>4. The party issuing the execution does so at his peril.</p> <p>5. Chambers v. Harger, 6 Harris 15, questioned.</p> <p>6. Scire facias does not apply to judgments entered by warrant of attorney but only to actions and judgments thereon by default, confession or on demurrer under statute 8 & 9 William 3, ch. 11.</p>

<p>Appeal from the decree of the Court of Common Pleas of Philadelphia, No. 122, to January Term 1870.</p> <p>On the 15th of June 1867, William R. Angier presented his libel in divorce to the Court of Common Pleas of Philadelphia, averring his marriage on the 1st of June 1859, with Mary Jane Angier, and their cohabitation until November 2d 1866, and that from that day “ she hath wilfully and maliciously deserted and absented herself from the habitation of this libellant without any just or reasonable cause, and still has continued and persisted in such desertion from that time to the present, a term of six months and upwards, and still doth continue to absent herself from the said libellant,” &c. He prayed the court to “ decree a divorce and separation from the said nuptial ties, or bonds of matrimony heretofore uniting, as above mentioned, this libellant to and with the said Mary Jane Angier.”</p> <p>There was offered an affidavit of the truth of the statements, and “ that the said complaint is not made out of levity, or by collusion between the said husband and wife and for the mere purpose of being freed and separated from each other, but in sincerity and truth for the causes mentioned in the said petition.”</p> <p>The libellant answered, admitting the marriage, and added: — ■</p> <p>“Yet this respondent doth expressly deny the charge of having maliciously and wilfully deserted and absented herself from him the said William R. Angier, as is stated in the libel of the said William R. Angier; but this respondent doth aver that the said William R. Angier hath maliciously deserted this respondent.</p> <p>“ All which matters and things this respondent is ready to verify, to maintain and prove, and humbly pleadeth the same in bar to the libel of the said William R. Angier, which she pray^ may be dismissed, &c.”</p> <p>On the libel and answer without further proceedings, the case went to trial, May 10th 1869, before Pierce, J., when the libellant gave in evidence the following lettersr</p> <p>“ Philadelphia, August 29th 1866.</p> <p>Mrs. Angier :</p> <p>I have rented my house No. 2031 Walnut street, Philadelphia,' and, as you are already advised, intend to take boarding for you and myself. I will inform you of the place in a day or two.</p> <p>As the furniture in the house is yours I wish you either to have it all removed together with all your personal property on the premises, or give me the necessary orders as to what disposition you desire me to make of it. ,</p> <p>Yours truly, Wm. Rotoii Angier.”</p> <p>“August 29th 1866.</p> <p>Your letter of this date is received. I earnestly protest against your pursuing the course that you are threatening me with.</p> <p>Yours,</p> <p>Mr. Angier. M. J. Angier.”</p> <p>“Philadelphia, August 30th 1866.</p> <p>Mrs. Angier.</p> <p>I have taken rooms and board for you and myself at Mrs. Neil-son’s, N. W. corner of Broad and Locust streets. On Monday next they will be ready for occupancy.</p> <p>Please have the furniture belonging to you removed from 2031 Walnut street as soon as possible, or give me such directions as may be necessary about it. There are certain articles about the house belonging to me which I will remove.</p> <p>Yours truly, Wm. Rotch Angier.”</p> <p>“ Your letter of 30th is received with mingled surprise and pain that you should offer to take me to a boarding-house when for weeks and weeks previous to my going to Newport you never spoke one word to me. Have you not also said that you considered it impossible for us to agree, and with this before me am I to be taken where strangers can be witnesses to the treatment that I have so long been subjected to ? I can conceive no reason why I should be exposed to this additional humiliation, particularly as my father had offered you that he would guaranty you against every claim for my maintenance, support and expenses of every sort if I remained where we have been for years, and you declined the arrangement.</p> <p>“ Some days ago I came from Newport (where I have been, and may continue staying at my brother’s without a dollar’s expense to you), and, in pursuance of arrangements, intend returning on Saturday ready to return to you whenever you express a wish to that effect and provide for me a suitable residence.</p> <p>Yours, M. J. Angier.”</p> <p>Mr. Angier.”</p> <p>He also read in evidence the record of the proceedings in the matter of his bankruptcy.</p> <p>His petition was filed 5th February 1868. He was discharged on 27th March 1869. Among the creditors returned are Robert Smith (deponent’s father) for $10,750, William D. Smith (her brother), $21,588.</p> <p>He called W. D. Smith, the brother of respondent, who testified that she had lived with his family in the summer of 1866. She went to Newport and spent the summer there and returned to Philadelphia in November, had resided with him or his sister Mrs. Whitney since, and had not been living with her husband; witness had loaned to libellant and endorsed for him in 1865 and 1866 ; libellant owed him about $24,000. The respondent had been in the habit of spending the summer at Newport for a number of years ; both before and since her marriage.</p> <p>H. 0. Dallett testified that he rented the libellant’s house 2031 Walnut street, on the 20th of August 1866, at a rent of $2000. Libellant removed all the furniture, except some mirrors, &c., belonging to Mrs. Angier, which remained subject to her order.</p> <p>Rose Glacken, who had been a servant with the parties, testified that when the respondent came from Newport in the fall of 1866, she said she would not return; when she came back the house was broken up.</p> <p>Mrs. Neilson, who kept a boarding-house, testified:—</p> <p>“ Over two years ago Mr. Angier took board with me; it was about the latter part of August 1866; he engaged two rooms for himself and wife, with the understanding that if she went to Europe, his father was to come in her stead. He took the rooms on second floor at the corner, two large rooms, the handsomest I have. I had at that time twenty-six or twenty-eight boarders, ladies and gentlemen. Mrs. Angier did not come to my house while Mr. Angier was there; he paid full board for himself and her till the latter part of May or early in June. He took the rooms in end of August, and commenced paying for them from 1st of September. The board he paid was $65 per week.” ,</p> <p>Libellant gave evidence that he boarded in Spruce street with comfortable accommodations, and that the respondent had never visited him there.</p> <p>The respondent then gave in evidence the following letters :—</p> <p>“August 25th 1866.</p> <p>Dear Sir:</p> <p>Mr. Smith offers to take the house, No. 2031 Walnut street, at an annual rent of $2000, for his daughter Mrs. Angier’s occupancy, and to guaranty Mr. Angier against any liabilities whatever from any quarter that may be contracted by Mrs. Angier.</p> <p>Yours truly, Constant Guillou,</p> <p>Attorney for Mrs. Angier.</p> <p>Mr. Northrop,</p> <p>Attorney for Mr. Angier.”</p> <p>“ Philadelphia, August 25th 1866.</p> <p>C. Guillou, Esq.</p> <p>Dear Sir: Your proposition of this date is declined. Mr. Angier renews his offers to take Mrs. Angier with him to two rooms at a boarding-house, and declines any arrangement by which any other person than himself shall control his family arrangements.</p> <p>Yours truly, George Northrop,</p> <p>Attorney for W. R. Angier.”</p> <p>“ Philadelphia, September 1st 1866.</p> <p>C. Guillou, Esq.</p> <p>My Dear Sir : My client, Mr. W. R. Angier, has notified Mrs. Angier that he has rented his-late residence on Walnut street above 20th and taken board for himself and her at Mrs. Neilson’s, N. W. corner of Broad and Locust streets, where he has secured two rooms on the second floor.</p> <p>He has also notified her that he wishes her to remove her furniture, &c., from his late residence on Walnut street or give him such orders with reference to its disposition as may seem good to her.</p> <p>To both of these notifications Mrs. Angier has returned letters of reproach, but has omitted all instructions or suggestions. My object in addressing you is to ask you as her counsel whether you have had any suggestions or instructions from her in relation to these matters, and whether you are authorized to send any one on her behalf to take charge of her furniture, &c., and whether it is your wish that we should act for her in the matter.</p> <p>Yours truly, George Northrop,</p> <p>Attorney for W. R. Angier.”</p> <p>“ Dear Sir:</p> <p>In reply to your favor, just received, I beg to say that my professional connection with the matter does not authorize me to take any action in regard to Mr. Angier’s threatened removal of the furniture.</p> <p>Truly yours, Constant Guillou.</p> <p>George Northrop, Esq. September 1st 1866.”</p> <p>“ Philadelphia, September 28th 1866.</p> <p>Constant Guillou, Esq.</p> <p>Counsel for Mrs. W. R. Angier.</p> <p>Dear Sir:</p> <p>I herewith send a list of the furniture, &c., belonging to Mrs. W. R. Angier, which has been stored as hereinafter stated, and all of which is subject to her order. Will you have the kindness, as her counsel, to transmit it to her.”</p> <p>Then follows a list of furniture, silver, jewelry, &c., stored at different places.</p> <p>“ Wm. Rotch Angier.”</p> <p>“ No. 615 Walnut Street.</p> <p>Dear Sir:</p> <p>Your favor dated 28th ult. was brought to my office an hour since. In compliance with your request I transmit it to Mrs. Angier, at Newport, by to-day’s mail.</p> <p>You will understand that she adheres to her protest against the course which you have pursued relative to 2031 Walnut street, the removal of a part of her chattels, and the leaving of the residue upon premises understood to be rented out.</p> <p>Yours respectfully, Constant Guillou.</p> <p>Mr. Wm. Rotch Angier. October 1st 1866.”</p> <p>Robert Smith, the father of respondent, testified: The parties lived with him for 18 months or 2 years after their marriage; witness defrayed all the expenses for their support; he furnished the house in Walnut street; since their marriage he had contributed $28,000 or $30,000 to their expenses, including furniture. Witness asked libellant why he was removing the furniture, &c., he said to lessen his expenses, he thought they were about $10,000. Witness further testified: “ I then asked him if the only reason he had for breaking up housekeeping was the expenses, if he and Mrs. Angier would remain in the house and avoid scandal I would bear all the expense, and it should not cost him a dollar; it was possible to reconcile them together. He declined the proposition, saying it was useless, they could not live happily together. He then remarked, why don’t she give me a divorce ? or grant me a divorce ? I answered she should not do that, his conduct did not deserve it.” * * *</p> <p>“ Mrs. Angier’s visits to Newport were made annually, before and after her marriage; she was always at my house or her sister’s, except one season, when he took a cottage there; the house in town was left in 1866, just as in previous years. She went either with one of the family, or one of the servants, I am not sure which.”</p> <p>The respondent offered to prove “ a series and frequent repetítion of humiliating and insulting language and opprobrious epithets addressed by libellant to respondent in the presence of her servants.”</p> <p>This offer was objected to, that no language or act could be given in evidence which would not furnish the wife sufficient ground to obtain a divorce: also, no notice or specification had been served on libellant stating the acts to be relied on as furnishing cause for desertion.</p> <p>The court rejected the evidence, and sealed a bill of exceptions.</p> <p>Judge Pierce in his charge said: * * *</p> <p>“[You will remember that the husband has the right to determine the place of residence for himself and his wife; it would, of course, be wiser and better to consult her upon the subject, but this is not indispensable. The law vests in him the right to determine and casts upon her the duty to accompany him, from which she can only be excused by such causes as would justify her in leaving his house, which, as already explained, are those causes which would justify her in applying for a divorce.] A wife is not justified in refusing to follow a husband to a home not so stately as the one she leaves; if the necessities of the husband require the change she must go, be the abode ever so different or humble.</p> <p>“But it is contended here that the husband deserted the wife ; that the home which they had occupied still remained, and that there was no necessity for his leaving it. His answer is that he did not elect to abide there or have her father support her, preferring to be at the head of his own house. I charge you that the Irasband was under no obligation to accept her father’s proffered bounty and might lawfully prefer to take upon himself the support of his family.</p> <p>“ [As to the suggestion that his object in breaking up the establishment was to effect the separation and effect the desertion of his wife, this cannot be material so long as he made a home which he offered her.] Even if he desired the separation, so long as he provided a home and there was no consent on his part that she should stay from it, she was not justified in doing so by apprehensions that she might not be so happy as she was at the old home.”</p> <p>The verdict was for the libellant.</p> <p>The decree was as follows :—</p> <p>“ An issue having been formed in this case between the said libellant William R. Angier and the said respondent Mary Jane Angier, to try the matters of fact affirmed on the one side and denied on the other, and the said issue having been tried by a jury, and a verdict rendered by them in favor of the libellant, the said William R. Angier, and the court having fully heard and considered the said cause proceeded to determine the same as to law and justice appertains, and do now, this 10th day of July, A. D. 1869, sentence and decree that the said William R. Angier the libellant, be divorced and separated from the nuptial ties or bonds of matrimony contracted by him with the said Mary Jane Angier the respondent, according to the Act of Assembly in such cases made and provided.”</p> <p>The respondent appealed to the Supreme Court and assigned for error — rejecting her offer of evidence; the parts of the charge in brackets, and in decreeing a divorce.</p>

<p>1. A testator devised to his grand-nieces all the property of which he should die possessed, “and to their heirs and assigns, subject nevertheless to the following restrictions, * * * the real estate of which I may die seised shall be held and enjoyed by them during their lives, or, in case of the death of one of them, during the life of the survivor,” upon condition that they or one of them should make the testator’s homestead a place of permanent residence; upon the refusal of both to reside at the homestead, for two months, the real estate mentioned to go as directed in the next clause of the will, as if the devisees were dead. Held, that the fee simple to the grand-nieces was reduced by the subsequent words to a life estate.</p> <p>2. The “next clause” of the will directed that upon the death of the devisees for life, the real estate should go to “ The Infidel Society in Philadelphia, hereafter to be incorporated, and to be held and disposed of by them for the purpose of building a hall for the free discussion of religion, politics,</p> <p>&c.” Held, that the remainder limited to a corporation thereafter to be created was void, because there was no devisee competent to take at the time, and the possibility that there might be such a corporation during the particular estate for life, was too remote.</p> <p>3. It would seem, such an association could not be incorporated under any of the general laws of the Commonwealth.</p> <p>4. It is in entire consistency with the constitutional guaranty of the rights of conscience and religious liberty to hold that even if Christianity is no part of the law of the land, it is the popular religion of the country, an insult to which Would be indictable as directly tending to disturb the public peace.</p> <p>5. The laws and institutions of Pennsylvania are built on the foundation of reverence for Christianity.</p> <p>6.. The religion revealed in'the Bible is not to be openly reviled, ridiculed or blasphemed to the annoyance of sincere believers.</p> <p>7. It is no objection to a devise for a charity that it is so vague and indefinite that no particular person may have such an interest as will give him a right to demand its execution, if there be a trustee named clothed with discretionary power to carry out the general objects of the donor.</p> <p>8. In this case this discretion cannot be assumed by a court nor reposed in a trustee of their selection.1</p> <p>9. When there is no competent trustee named, or he dies or resigns, and there is no provision made by the testator for the continuance of the trust, the charity must fail.</p> <p>10. Power to act at discretion need not be expressly given if it can be implied from.the nature of the trust.</p> <p>11. An unincorporated society may be a trustee invested with such discretion, and may perpetuate itself by a succession of its members.</p>

<p>Certiorari to the Court of Quarter Sessions of Chester county: No. 120, to July Term 1869.</p> <p>On the 10th of June 1868, a petition was presented to the Court of Quarter Sessions of Chester county, praying for viewers “ to lay out a public road, beginning in the public road leading from Cedar Hollow to Tustin’s bridge, at a point in the same, near the St. Peter’s Lutheran and German Reformed Church, and ending at a point on the grounds of said St. Peter’s Lutheran and German Reformed Church.”</p> <p>Viewers were accordingly appointed, who, at the next term, reported that they had laid out a public road, “ beginning at an iron pin in the public road, leading from Cedar Hollow to Tustin’s bridge, &c., thence partly along said road and through a narrow wedge of unimproved land belonging to the German Evangelical Lutheran Church, and passing in front of said St. Peter’s Lutheran and German Reformed Church, &c. * * * to a post on land belonging to St. Peter’s Lutheran and German Congregations.” On the 10th of August 1868, this report was read and confirmed nisi.</p> <p>On the 18th of August, exceptions were filed by the German Lutheran Evangelical Church, viz.:—</p> <p>“ 1. The viewers had no power to lay out a public road from the property of a private corporation to a public road.</p> <p>“ 2. Instead of laying out a road from the property of the corporation to the public road by the most convenient and direct route, they have laid out a road nearly parallel with, and partly on the bed of the present road, extending 11 perches in length, and for about two-thirds of the distance along the front of the church property, in violation of their duty and in fraud of the law.”</p> <p>Sept. 14th 1868. The exceptions were dismissed and report confirmed.</p> <p>Eeb. 11th 1869. Reviewers were appointed.</p> <p>April 27th 1869. Report of reviewers laying out the road on the same ground as the viewers, read and confirmed nisi.</p> <p>May 10th 1869. The same exceptions as before were filed by the same party.</p> <p>June 14th 1869. The exceptions were dismissed, the report of the reviewers confirmed, and the road ordered to be opened thirty-three feet wide.</p> <p>In dismissing the last exceptions, the court (Butler, P. J.) delivered the following opinion :—</p> <p>“ The road terminates at a church and public cemetery. The place is known to be one of great resort, as well by the public at large, as by the members of the church. We entertain no doubt that it is a proper and lawful terminus for a public highway, just as is a wharf, a ferry or a railroad depot, or other place to which the public has occasion to travel. The first exception is therefore dismissed.</p> <p>“ There is no substance in the complaint contained in the second exception. The new road is connected with the old one at the place of beginning, in the usual and proper manner. At the point where two roads diverge from each other, or where a road forks, necessarily each road or fork must be for a short distance partially run over the same ground, increasing the width beyond the number of feet allowed to either. That the jury did not start at the edge of the old road, but a few feet further back, running over it for a short distance, is unimportant. This exception is also dismissed.”</p> <p>The proceedings were removed to the Supreme Court by certiorari at the instance of the German Evangelical Lutheran Church.</p> <p>The following errors were assigned:—</p> <p>1. Dismissing the exceptions and confirming the reports of viewers and reviewers.</p> <p>2. Deciding that a public road may be laid out from the property of a private corporation to a public road.</p> <p>■ 3. Not setting aside the reports, the viewers and reviewers not having laid out the road from the property of the corporation to the public road, by the most convenient and direct route, but having laid it nearly parallel with the old road, along in front of the church property, in violation of their duty and in fraud of the law, is shown by the reports and drafts.</p>

<p>1. As a general rule wherever the cause of action is such as would be subject to the bar of the Act of March 27th 1713 (Statute of Limitations), if prosecuted under any of the forms enumerated in that act, then the statute is applicable; otherwise not.</p> <p>2. It applies to proceedings in other courts and before other tribunals than those of the common law.</p> <p>3. In regard to any actual taking by other than railroad companies, it seems, that under the constitutional provision, no title to the land or an easement over it is to be gained without payment of or security for the damages.</p> <p>4. An occupation or use is a continuing trespass, for which ejectment, trespass or case would lie, unaffected by the bar of the statute as far as the right is concerned.</p> <p>5. The statute limits only the period for which damages could be recovered to six years before the commencement of the action.</p> <p>6. Nothing but adverse possession or use for twenty-one years would bar the right of action itself.</p> <p>7. AVhen a statute gives a new and special remedy, and precludes all others, the Statute of Limitations does not apply.</p> <p>8. The Statute of Limitations is not a bar in any case of taking under the right of eminent domain: per Thompson, C. J., and Williams, J.</p>

<p>1. A devise was of all testator’s real estate, “to my wife and daughter or the survivor during their lives, in case my daughter shall depart this life leaving lawful issue — to descend to such lawful issue, their heirs and assigns for ever — if my daughter die before her mother leaving lawful issue, such issue shall inherit their mother’s right from the time of her death. _ If my daughter shall die not leaving lawful issue, my executors or the survivor shall sell, after the death of my wife, my real estate,” and he gave the proceeds over one-half to relatives of his wife, the other half to his own “or their lawful issue.” Held, that the daughter took an estate for life, remainder to her children in fee with an alternative limitation over on her dying without issue living at her death.</p> <p>2. “ Issue” in a will means primt, facie “ heirs of the body.”</p> <p>3. This construction will yield to an intent, on the face of the will, that the words were to have a more restricted meaning and to be applied only to children or descendants of a particular class or at a particular time.</p> <p>4. “ Heirs of the body,” are proper technical words of limitation, “ issue” is not when used in a deed.</p> <p>5. “ Issue” in a will is to be construed as a word of purchase or limitation as will best effectuate the intention of the testator as gathered from the entire instrument.</p> <p>6. The nature of the devise over is to be looked at to ascertain whether a definite or indefinite failure of issue is intended.</p> <p>7. An estate tail may be subject to an executory devise over on some condition or event to take effect in abridgment or derogation of it.</p> <p>8. Such executory devise can be destroyed by a common recovery which enlarges the estate into a fee and excludes all subsequent limitations, whether in remainder or as springing use or executory devise.</p> <p>9. A devise over after an estate tail on a definite failure of issue, is not an executory devise but a remainder.</p> <p>10. Such remainder is vested.</p> <p>11. Where a limitation is to a parent for life and to his children in remainder, the parent is not tenant in tail, whether there are children or not.</p> <p>12. Price v. Taylor, 4 Casey 95, criticised. Criley v. Chamberlain, 6 Id. 161, remarked on. Eichelberger v. Barnitz, 4 Watts 450, a leading case.</p>

<p>In the Supreme Court, Eastern District: in Equity: No 20, to January Term 1871.</p> <p>On the 3d of December 1870, an application by bill in equity was made to C. J. Thompson by Matthew Baird and others, for an injunction against John Rice and others, commissioners, Daniel M. Fox, Mayor, S. W. Cattell and Louis Wagner, President of the Select and Common Councils of Philadelphia. The bill set forth:—</p> <p>1. An Act of Assembly of August 5th 1870, authorized the above-named commissioners to erect public buildings for the courts and for all municipal purposes in Philadelphia, and they were authorized to locate the buildings on Washington Square, or Penn Squares, as might be determined by a vote of the electors of Philadelphia, at the general election in October 1870.</p> <p>2. Should Penn Squares be selected, the commissioners were authorized to vacate so much of Market and Broad streets as they might deem needful, the streets passing around the buildings not to be less than 100 feet.</p> <p>3. At the last election the voters selected Penn Squares, and it became the duty of the commissioners to proceed to erect the buildings on Penn Squares, unless the commissioners had by the acts of omission or commission thereafter set forth, become disabled to act.</p> <p>4. A majority of the commissioners threatened to erect the buildings partly on Market and Broad streets, and partly on Penn Squares, thereby obliterating both broad and Market streets to the extent of the length and breadth of the buildings, in violation of the aforesaid act.</p> <p>5. The commissioners had not adopted the necessary plans nor obtained specifications or estimates, and had advertised for proposals without specifying quantities, or requiring the proposals to be sealed, or inviting proposals for erecting the entire buildings, and therefore the cost of the buildings could not be estimated. The advertisement for proposals was here inserted.</p> <p>6 and 7. The intent of the act was that the plans should be prepared, that voters might vote intelligently, but the commissioners did not procure the plans, and had not adopted any plans, spe-cifieations or estimates: it was therefore uncertain what course the commissioners would adopt.</p> <p>8 and 9. The cost of the building, if erected as intended by the commissioners, would be many millions of dollars, and greatly add to the public debt and taxes of Philadelphia, and the neglect of the commissioners in the matters set forth was in violation of the act and irreparably injurious to the tax-payers.</p> <p>11. Matthew Baird and four others of the complainants own real estate in fee simple on Broad street which had paid the cost of the Nicholson paving and macadamizing Broad street in front of their property since the passage of an act approved March 3d 1866, and they were entitled to the benefit of the contract therein in favor of the owners of property on Broad street. The material parts of the act are as follows:—</p> <p>“ Whereas, For the uses and purposes of the public, and .the benefits and advantages which will enure to them by making and for ever maintaining Broad street, in the city of Philadelphia, for its entire length as the same is now opened or may hereafter be opened, the principal avenue of the said city, and for keeping and preserving the said street for ever free from and unobstructed by railroad tracks extending along the same, as well as for the purpose of enabling and authorizing the said city to remove or cause to be removed all railroad and railway tracks and other obstructions laid or constructed along the same and impairing its uses for public services, as aforesaid.</p> <p>Sect. 1. Be it enacted, ¿-e., That the city of Philadelphia be and is hereby authorized, empowered and required to occupy and appropriate Broad street, in the city of- Philadelphia, for its entire length, as the same is now opened, or may hereafter be opened, and from curb to curb thereof, except as hereinafter provided, for the use and purposes of a public drive, carriage-way, street or avenue, and to improve the said street or portions there-, of, from time to time, and in whole or in part, with such mode of paving, pavement, macadamizing, gravelling or other roadway, as may in the judgment of the Select and Common Councils of said city be best adapted to and for the uses and purposes aforesaid ; and for that purpose the said councils shall have, and are hereby authorized to enact such ordinances or resolutions, with such conditions and stipulations, as may require the cost of said improvements to be paid for by the owners of property abutting upon said street.</p> <p>Sect. 4. “ That upon the improvement of said (Broad) street or any portion thereof, as provided in the first section hereof, and in consideration of the payment of the cost thereof by the owners of property abutting thereupon as aforesaid,” * * * “no person or persons, or corporation of any kind, nor the city of Philadelphia shall, at any time hereafter, be authorized or empowered to locate, lay, construct or maintain any railroad or railway tracks, or other obstructions prejudicial to the uses and purposes aforesaid, along or upon said street, or any portion thereof (except at the intersection of streets, and for the purpose of crossing said Broad street.)</p> <p>Sect. 5. “The Select and Common Councils of the city are hereby authorized and requested to enact all ordinances or resolutions necessary and proper for the carrying into effect the requirements, provisions, and purposes of this act, and in like manner to require any railway tracks hereafter to be laid and constructed upon Broad street, to be done under the direction of the chief engineer of said city, in such manner as shall not interfere with any carriage or roadway, or boulevard which may occupy the centre portion of said street; and all acts or parts of acts inconsistent with the terms and provisions of this act be and the same are hereby repealed.”</p> <p>12. The obliteration of Broad street at Market street and several hundred feet below and above, and the erection of elevated buildings on Broad street, would be a violation of the contract contained in the above-stated Act of 1866, and if the Act of August 5th 1870 gave such power to the commissioners, it would be unconstitutional.</p> <p>They prayed:—</p> <p>2. That the commissioners be restrained from making any contracts for the construction of said public buildings, under the proposals so as aforesaid issued by them, or otherwise interfering or acting in reference thereto in any manner soever.</p> <p>3. That the presidents of the city councils, and the mayor, be restrained from signing or approving any ordinance appropriating any moneys or laying any special tax in aid of the construction of the said public buildings as aforesaid.</p> <p>4. That it may be finally adjudged and decreed by the court that the contract in the said Act of 23d of March 1866 contained, in favor of the owners of property abutting on Broad street as aforesaid, shall be and stand firm and inviolate.</p> <p>The complainants afterwards filed an amended bill against the commissioners, mayor and members of the councils, setting forth:—</p> <p>1. That the complainants are residents and tax-payers and owners of real estate in Philadelphia; that the city councils intend to pass an ordinance levying a special tax for the year 1871, for the purposes of the building commission, which the complainants aver is in express violation of the provisions of the act commonly called the Consolidation Act.</p> <p>2. That the building commission intend to enter into contracts for the erection of the public buildings, and thus involve the said city in debt and liability, before the city councils shall have approved the plan of the said buildings, and irrespective of any action of the councils in the premises, which the complainants aver is contrary to the provisions of the act commonly called the Consolidation Act and its supplements, particularly that part which provides “ That no debt or contract thereafter incurred or made shall be binding upon the city of Philadelphia, unless authorized by law or ordinance, and an appropriation sufficient to pay the same be previously made by councils.”</p> <p>3. That the city councils intend to make an appropriation for the use of the building commission, out of money raised by taxation.</p> <p>They prayed:—</p> <p>1. That the councils be restrained from passing, and the said mayor from approving any ordinance levying any special tax for the uses and purposes of the building commission, or making any appropriation of moneys raised by taxation for said purposes for the year 1871.</p> <p>2. That the commissioners be restrained from entering-into any contracts for the construction of said buildings, before the plans for the erection of the same shall have been approved of by the city councils.</p> <p>An injunction affidavit was made by Robert J. Paschall, and a preliminary injunction was granted. At the hearing at Nisi Prius, December 3d 1870, James D. Whetham and others, property-holders on Broad street, were on their petition permitted to intervene and defend pro interesse suo.</p> <p>The affidavits of John Rice, president of the commission, and of a number of other persons were read; amongst others was the following from John McArthur, the architect of the commission:—</p> <p>“I am the architect of the public building commission. I received my appointment from the commission on the 15th day of September, of this present year. Immediately after my appointment I was directed by them to prepare plans of general arrangement for the public buildings, which could be made applicable to either Washington Square or Penn Square. I made such plans and submitted them to the commission for correction.</p> <p>“ Several modifications and additions were directed to be made. These plans were not completed at the time of the election. It was impossible to prepare accurate plans for such a building within twenty-one days, — the time between my appointment and the election. I would not think the commission justified in binding the city by a contract on plans so hastily prepared.</p> <p>“ Six months were given by the commission appointed by councils in which to prepare plans for Independence Square; some of the competing architects complained of that time being inadequate, and petitioned to have it extended. After the election I commenced a set of plans specially adapted to Penn Square, which were referred to a committee. This committee directed me to prepare two sets of plans for their information, one set for the intersection of Broad and Market streets with one building, and one for four separate buildings (one on each square). I prepared these plans and submitted them. They were returned to me with a resolution directing me to prepare a report upon them, stating their relative cost of execution, all of which I did.</p> <p>“ After submitting my report I was directed to proceed with plans for the buildings to be placed at the intersection, and also to furnish, at the earliest moment, a specification of such materials and labor as might be required in their construction during the year 1871, which I did.</p> <p>“ The first plans made by me for the intersection, contemplated the streets surrounding the buildings to be 100 feet wide, in accordance with the Act of Assembly creating the commission; these plans were not adopted, because the streets were not deemed of sufficient width. I was, therefore, directed to make new plans with streets not less than 135 feet wide.</p> <p>“ The plans now being made have streets of 135 feet in width on the southern and eastern and western fronts, and 205 feet in width on the northern front. These widths are from the extreme projections of the building, the average widths being much greater.”</p> <p>The hearing was then adjourned to the 4th of January 1871, before the Chief Justice and his associates as assessors.</p>