Volume 64 — Pennsylvania State Reports

<p>Appeals from the decree of the Court of Common Pleas of Columbia county: In Equity.</p> <p>On the 19th of April 1869, Elisha H. Biggs filed a hill against Charles H. Doebler for the specific performance of an agreement, dated August 21st 1868, by which the plaintiff covenanted to convey to the defendant a lot of land in Bloomsburg for the consideration of $3000, of which $100 was to be paid on the execution of the agreement, $400 on the 1st of October following, and the remainder in semi-annual payments of $500 each, with interest until all the purchase-money should be paid. Upon the defendant paying off the money due on the 1st of October 1868 and entering into bond and mortgage to secure the balance, the plaintiff was to deliver to him a good and sufiicient deed in fee simple. The hill set out that the plaintiff’s title was under the will of Elisha Biggs, deceased, who died seised of the premises in fee, leaving a widow and the plaintiff his only child. The will was proved July 7th 1851. After ordering the payment of his debts, &c., he provided as follows.:—</p> <p>“ 2. I give and bequeath to my wife, Margaret Biggs (in lieu of dower at common law or otherwise), the yearly sum of one hundred dollars, to be paid to her in quarterly payments during the term of her natural life, in each and every year, and after my debts are paid she shall have the additional sum of fifty dollars a year. I also direct and it is my wish, that should my son Elisha II. Biggs die without heirs, that she shall have an additional fifty dollars, if my debts are paid. I also give and devise to her the use of my family mansion-house during her life should she remain a widow, but should she marry again then my mansion-house shall be my son’s and she shall be entitled to receive the sum of fifty dollars a year during her life, instead of one hundred and fifty already mentioned, and should my son die without heirs she shall not be entitled to the additional fifty dollars, and my mansion-house shall go as hereafter devised.</p> <p>“ 3. I give and devise to my son, Elisha H. Biggs, the block known as the Exchange Building and the Old Arcade; beginning, &c. * * * I also give and devise to him my mansion-house after my wife’s decease, should she remain unmarried, as also the lot of ground immediately below it, containing about one-half acre, more or less. * * But he shall in nowise sell or alienate any of the above-described property, as it is intended that he shall have a life interest only in the same, with remainder over to his heirs in fee, subject to the payment of my debts, and subject also to the bequest to my wife, or any other bequests hereafter mentioned, and he shall in nowise come into possession of any of the above-described property until his twenty-second year.</p> <p>“ 4. I hereby direct my executors, hereafter mentioned, to rent my stores, &c. I also direct them to convey and sell all my real and personal estate undevised, &c., * * but should they be unable to sell the Exchange Hotel and store until my son attains his twenty-second year, he may retain them upon the same conditions as my other bequests already made to him, but should he not wish to have or to hold the same, then it is my wish and desire that they may be sold without reserve to the highest bidder, upon the most reasonable and easy conditions, within three years after my son attains his twenty-second year. * * * My son may become a purchaser of the hotel and store, should they not, when offered for sale, bring their full value, after he becomes twenty-two years old.</p> <p>“ 6. It is my desire that what money there is, if any, over and above paying my debts and other bequests and payments, when my son becomes twenty-two years old, or upon the sale of the hotel and store, should my son refuse to take or purchase it, shall be invested in real estate, the income from which my son shall receive during his life, and the remainder over to his heirs in fee, subject to the bequest to my wife.</p> <p>“ 7. It is my request, and I hereby devise, that should my son die without heirs, or before he becomes twenty-two years old, that all my property, after the payment of my debts, shall be disposed of as follows — one-half to my sisters or to their heirs after them; one-half to St. Paul’s Church, Bloomsburg, &c.” * *</p> <p>The widow elected not to take under the will. The plaintiff attained the age of twenty-two years on the 18th of November 1867 and on the 28th of September 1868, the widow of the testator released to him all her right of dower and interest in the premises. The bill averred that the defendant had paid $100 of the purchase-money and on the 1st of October 1868, the plaintiff tendered the defendant a deed in fee simple and possession of the premises, and demanded payment of the $400 then due and bonds and mortgage for the remaining payments; that the defendant refused to pay the $400 and give the bond and mortgage, alleging that the plaintiff held but a life estate and could not convey a title in fee simple. The plaintiff averred that under the will of the testator he was seised in fee simple of the premises.</p> <p>The prayer was, that the court would declare what estate the plaintiff took under the testator’s will and decree specific performance by the defendant, and if the court should be of opinion that the plaintiff took but an estate tail, that the defendant should accept such deed as the court shall direct to bar the entail, &c.</p> <p>The defendant answered, admitting the averments of the bill, except that the plaintiff had a fee simple, which he denied. He further answered, “ that he is willing that the court shall decree him to take the property and to pay the sums of money agreed to be paid, and to secure the money yet to become due, according to the terms of the said agreement, if the court are of opinion that the plaintiff can convey in fee simple.”</p> <p>The court, on the 24th day of June 1869, decreed that “ the plaintiff has such title to the land described in the bill of complaint as enables him fully to comply with and perform the agreement therein recited, and upon the plaintiff tendering to the said Charles H. Doebler, a proper conveyance according to said agreement, which conveyance shall be executed in such form as to dock any entail which may exist in said land, the defendant, Charles H. Doebler, to pay to the plaintiff the sum of $900 within ten days after such tender, and also to deliver to the plaintiff his bonds for further sums according to the said agreement,” &e.</p> <p>Each party appealed to the Supreme Court. The defendant assigned for error, that—</p> <p>“ The court erred in decreeing that the plaintiff below, Elisha H. Biggs, has such title to the land described in the bill of complaint as enables him fully to comply with and perform the agreement therein recited.”</p> <p>The plaintiff assigned for error, that—</p> <p>“ The court did not decree the estate of Elisha H. Biggs, the plaintiff, to be a fee simple; and that Charles H. Doebler, the defendant, should accept the deed tendered to him before suit brought.”</p>

<p>Error to the Court of Common Pleas of Montour county: No. 3, of October Term 1869.</p> <p>This was an action of assumpsit, brought July 4th 1868, by B. K. Rhodes and J. C. Rhodes, administrators, &c., of John Childs, deceased, against Charles W. Childs. The suit was to recover the amount of a check for $2824.50, drawn by John Snyder in favor of the decedent, which, the plaintiffs alleged, had been received by the defendant.</p> <p>The defendant was the illegitimate son of a sister of the decedent; his mother was dead; he had been brought up and maintained from an early age by the decedent who was unmarried. The defendant lived with the decedent until he, defendant, was married, which was at about the age of twenty-one years. The decedent afterwards lived by himself until about two months before his death, when, being aged and in feeble health, he came to reside with the defendant, and died at his house.</p> <p>The case was tried, December 22d 1868, before Jordan, P. J.</p> <p>The plaintiffs gave evidence of the delivery of the check to the decedent by Snyder in payment of a note due from him to the decedent, about a week before his death and whilst he was lying sick in bed, and that the money was drawn on the check by the defendant. They gave evidence also that when one of the administrators came to the house to take the inventory, the defendant produced some chattels, &c. The defendant was asked if he had money of decedent in his possession, he denied that he had; he was asked if he had not drawn $2824.50 on the Snyder check, he said he had, and had given it to the decedent, and said he did not know what the decedent had done with it; that he, defendant, had never seen it after he had given it to the decedent.</p> <p>The plaintiffs then offered to prove by a witness, one of the administrators, that “he asked defendant if there was not another pocket-book ? and defendant said there was, and went into another room, brought one and gave to witness a pocket-book containing fifty-one dollars and some cents, and that this was all the money of the intestate which the administrators got.” Defendant objected to this offer as irrelevant, but did not object to plaintiffs proving by witness that he, witness, did not get the $2824.50. They also proposed to ask the witness how much money there was in the pocket-book ? This was objected to by the defendant. These offers were rejected by the court, and bills of exception sealed. The plaintiffs proposed to ask the witness to relate all the circumstances that took place between him and Charles W. Childs respecting the estate of John Childs, deceased, at that time. The defendant objected, unless it had relation to the money mentioned in the bill of particulars filed. The court sustained the objection, and confined the conversation to the sum of money stated in plaintiffs’ bill filed, which they asked to recover from defendant in this action. A bill of exceptions was sealed for plaintiffs.</p> <p>There was evidence that the defendant had said, after the death of the decedent, that he had expected the decedent would do something for him, but that he had done nothing; that “his uncle John had given him the Snyder check to draw the money on and to keep it, for it was his (defendant’s); but that his attorney had told him that, as he had no evidence, it was all worthless.” There was evidence of conflicting statements by the defendant in relation to the receipt of the check, and as to what he did with the money.</p> <p>The defendant gave evidence by his daughter who, at the time of delivery of the check, was between fourteen and fifteen years of age; that Snyder gave the cheek to decedent who was sick in bed; it was about a week before his death; the decedent gave the check to the defendant in presence of herself and her mother, and told him to keep it for his own use. Defendant then offered to prove by another witness “ that in 1866 John Childs told the witness he thought more of Charles W. Childs than any other of his relations; and that he intended to give him a considerable amount of money before his death. This is offered to explain the gift testified to by Ann Elizabeth Childs, in corroboration of her testimony and as explanatory of the relation existing between John Childs, uncle, and Charles Childs, nephew.” The plaintiffs objected to the offer. It was admitted by the court and a bill of exceptions sealed.</p> <p>The witness on the stand and others afterwards called, testified to facts of the character proposed in the offer.</p> <p>The plaintiffs submitted these points:—</p> <p>“ 3. The evidence of defendant’s daughter, who is aged now between fifteen and sixteen years, dependent upon and subject to his control, that the intestate on his death-bed, gave the Snyder check to her father, in the presence of the defendant’s wife and of the witness, is not sufficient in law to establish a gift of the said check by the intestate to the defendant, and will not of itself, or in connection with the declaration by the defendant in evidence, that the intestate gave him the check, or the proceeds of the check, justify the jury in finding a verdict in his favor.</p> <p>“ 4. It is not now denied by the defendant that he got and still retains the proceeds of the Snyder check, to wit, the $2824.50, and that if the jury believe that while the inventory of the intestate’s personal estate was being taken by the appraisers at the defendant’s house, he, the defendant, was there asked by one of the administrators whether he had not drawn the amount of the check from the bank, and what he had done with it, and that he answered that he had drawn the money, but had given it to the intestate in his lifetime, and that he did not know what the intestate had done with it, nor did he know where it was; and that he persisted in this answer, knowing at the time that the inquiry was made of him by an administrator of the deceased, he, the defendant is now estopped or debarred from setting up a death-bed gift, or a donatio mortis causa of the check, as a defence in this suit, and that the verdict of the jury ought in such case to be in favor of the plaintiffs for the amount of the check, with interest, from the date of the- demand.”</p> <p>The court answered the points as follows:—</p> <p>3. “ The court cannot answer this point as requested, inasmuch as we do not consider this as a case of donatio causa mortis, but as a gift from John Childs to Charles W. Childs, of the Snyder check. John Childs was the owner of the check, and we see no reason why he might not give it to whom he pleased. Whether the testimony of the daughter of Charles W. Childs, in connection with all the other evidence in the cause, is sufficient to satisfy you that the gift was made by John to Charles, is submitted to you; and although we do not view this as a donatio mortis causa, yet the evidence to establish the gift should be so convincing as to remove from your minds any reasonable doubt as to the fact of the gift having been made, and that there was a delivery of the thing given.”</p> <p>4. “ The several matters mentioned in this point, although not now denied by the defendant, the court are of opinion are not sufficient to estop him from claiming the check as a gift, if the jury are satisfied, from all the evidence, that the check was given to Charles and delivered to him; but although the court do not consider these several matters as estopping Charles W. Childs from claiming the check, the declarations of Charles, and his denial that he had the money, but had given it to his uncle, they do consider them as weakening the allegation that the check was a gift from John to Charles. Whether it was given is, however, submitted to you.”</p> <p>The verdict was for the defendant.</p> <p>The plaintiffs took a writ of error.</p> <p>The first three assignments of error were to the rejection of their offers of evidence; the 4th to the,admission of the defendant’s offer, and the 5th and 6th to the answers to the plaintiffs’ points.</p>

The decedent died on the 3d of January 1867 and administration of his estate was granted on the 31st of the same month, to John K. Weist and Jacob K. Weist, two of his sons.

<p>1. A distributee released to the administrator all his right to what might be recovered in a suit brought by the administrator. Held, that he was a competent witness.</p> <p>2. A witness divesting himself of a mere collateral interest in the event of the suit, is not within the rule in Post v. Avery, 5 W. & S. 509.</p> <p>3. At an arbitration the plaintiff examined a defendant as a witness, i?eld, that this -rendered the defendant a competent witness on her own behalf, on the trial of the same case in court.</p>

The Hon. Alexander Jordan, President Judge of the Eighth District, including Northumberland county, and Hon. Joseph Buffington, President of the Tenth District, including Armstrong county, at January term 1871, applied to the Supreme Court, to assign one of their number to hold a Court of Oyer and Terminer in each of these counties on account of the inability from illness of the applicant^ to hold their respective courts.

<p>1. Any persons who own property of any kind may form an association with others and sell it at any price, without regard to the original cost, if there be no fraudulent misrepresentation.</p> <p>2. The vendors are not bound to disclose the profit which they may realize.</p> <p>3. The vendors would not be agents or trustees in their original purchase, and there would be no confidential relation which would affect them with a trust.</p> <p>4. Like other cases of vendor and vendee, they deal at arm’s length; their partners are in no better position than strangers.</p> <p>5. From the time persons form or begin to start such association, they stand in a confidential relation to each other, and to all others who may become members, and none of them can purchase property for the purpose of the association and sell it at an advance, without a full disclosure of all the facts.</p> <p>6. Such persons must account to the company for the profits.</p> <p>7. The same principle is in the law of partnership.</p> <p>8. Within the scope of the partnership, each partner is agent of the others, and cannot divest himself of that character without their knowledge and consent.</p> <p>9. The Act of July 18th 1863 (Mining Companies) does not require that the corporators should be subscribers to stock.</p> <p>10. They need not have an interest in the company; they are mere instruments of the law for organization.</p> <p>11. McElhenny v. Hubert Oil Co., 11 P. F. Smith 188, Simons v. Vulcan Oil Co., Id. 202, recognised.</p>

<p>1. The 7th section of Act of April 27th 1858 (Limitation of Ground-Rents) is retrospective.</p> <p>2. The lapse of twenty years without demand of payment 'is evidence from which a-jury may presume payment of arrears of ground-rent.</p> <p><5. The retrospective bar of the act is constitutional.</p> <p>4. Without claim, demand, payment or acknowledgment of the existence of a ground-rent within twenty-one years, the Act of 1855 operates as an extinguishment, and the ground-rent is irrecoverable.</p>

28J, to January Term 1870. This appeal was from the decree of the Orphans’ Court distributing the estate of L. Coates Stockton, deceased, in the hands of his administrator, Anne F. Stockton. The only question controverted was the claim of George A. Twibill for the use and occupation by the decedent, of certain premises belonging to Twibill. The decedent had been tenant of George W. Conrad, of a storehouse in Philadelphia.

<p>. 1. Rushton gave a mortgage to George. Rowe issued a foreign attachment against George, and on scire facias recovered judgment against Rushton as garnishee. Held, that Rowe could maintain a scire facias on the mortgage in the name of George to Rowe’s use.</p> <p>2. The attachment was a seizure of the mortgage as belonging to George, and the law regarded it as an assignment to Rowe.</p> <p>3. The mortgage was to Lyman and John George, trading as “ L. A. George & Co.; ” the attachment was against Lyman George and William George, trading as L. A. George & Co.” Held, that the misnomer of one of the partners was unimportant, the name of the firm being accurate.</p> <p>4. Interest, after the service of the attachment, could under the circumstances, be recovered against the mortgagor.</p> <p>5. The rule that interest ceases from the service of the attachment, does not apply where the delay is produced by the litigiousness or unreasonable conduct of the garnishee.</p> <p>6. When the garnishee has been ready and willing to pay debt' and interest he is within the rule.</p> <p>7. A sure way for the garnishee to avoid liability for interest would be to pay the money into court.</p>

<p>1. One of two executors filed an account in which were charged full commissions; he was cited in the Orphans’ Court to pay the other executor his proportion. Held, that the Orphans’ Court had no jurisdiction.</p> <p>2. The claimant was not a distributee of the estate on account of commissions.</p> <p>3. The commissions do not stand on the same footing as a creditor.</p> <p>4. The remedy by an executor, &c., against his co-executor for his share of compensation is in a common-law court.</p> <p>5. Adams’s Appeal, 11 Wright 94, Walker’s Estate, 9 S. & R. 224, recognised.</p>

<p>Appeal from the decree of the Orphans’ Court of Philadelphia: In the estate of Herman Hooker, deceased.</p> <p>Herman Hooker died in September 1865, leaving a will with codicils, which were proved October 14th 1865. Mary J. Hooker and Richard McCauley, the executors, settled an account, showing in their hands a balance of $9053.01. The account was referred to James H. Campbell, Esq., as auditor, for adjustment and distribution. After making some alterations in the account, the auditor found the balance for distribution to be $9553.</p> <p>The only matter controverted in the Supreme Court was a claim made by James J. Barclay, administrator, &c., of Charles H. Alden, deceased. This claim was founded on the following obligation, not under seal, dated February 1st 1841:—</p> <p>*“We, Herman Hooker and Samuel Agnew, of the firm of Hooker & Agnew, of Philadelphia, hereby acknowledge to be due to Charles Henry Alden, of Philadelphia, the sum of $4000, which sum was loaned to the late firm of Hooker & Claxton, and is by this instrument transferred as a loan also to us. This sum we agree to pay in full to the said Charles Henry Alden, his heirs, executors or assigns, at the expiration of eight years from this date and not before; provided the firm be not previously dissolved, and provided also we pay to the said Alden portions of the said sum in amount not less than $500 at any one time within the said space of eight years: provided also, we pay to the said Alden semi-annually, on the first days of January and July of each year, legal interest on the said sum of $4000.</p> <p>“ In the contingency of failure in business, we hereby agree to consider the above sum as a preferred debt.”</p> <p>The principal contention as to this claim was, whether it was barred by the Statute of Limitations. Alden died before January 20th 1847. The only evidence of a recognition of this debt was found in the books of Hooker, which were produced before the auditor by his executors and offered in evidence by the administrator of Alden. In these books there was an account with Alden, commencing February 13th 1841, in “Ledger No. 1, folio 78,” containing debits and credits, each side for merchandise and cash. This account was continued to October 20th 1845, when it is carried to folio 420, and, without break or change, up to January 10th 1848; when, without balancing or footing it up, the name “Mrs. Alden” is brought into it, and it is footed up at $239.16, “to folio 423.”</p> <p>At folio 420, also in same ledger, an account is opened to “ J. J. Barclay for the estate of Mr. Alden,” commencing April 16th 1847, and containing charges only, amounting to $1809.20; this amount is carried to “New Ledger.”</p> <p>The account in the name of Mrs. Alden is continued on folios 423, 425, and in Ledger No. 2, through several folios, until July 2d 1855, when the debits of her account amounted to $1661.27, and she was credited by that “ amount to J. J. Barclay.” This closed her account to that date.</p> <p>On the 3d of February 1851 the account of “ J. J. Barclay” is opened in “ Ledger No. 2.” He is charged with “ amount from old ledger,” being the above amount, $1661.27, of Mrs. Alden, and other items to July 2d 1855; and credited: “ 1855, July 1st. By amount of note originally given to 0. H. Alden for money loaned, $4000,” leaving a balance in Barclay’s favor of $829.53, which is carried to “New Ledger.”</p> <p>The account against Mrs. Alden is again opened, in Ledger No. 3, August 20th 1855. The debits are for merchandise, cash, &c., and on May 1st 1857, the amount against her was $3Í3.44; on that day there is a credit, “ By J. J. Barclay, administrator, for amount of her bill rendered to date, $313.44.”</p> <p>There is another account of “ J. J. Barclay, administrator of C. II. Alden,” commencing January 15th, and .ending October 1st 1857. Of the debits one is Mrs. Alden’s account, $313.44, and another, “ Cash $100.” He is credited with $829.23, “ amount from old ledger” ; this leaves a balance of $416.09 in his favor, which is carried, as of October 1st 1857, to Ledger No. 4. This is the last account with Barclay.</p> <p>In Ledger No. 4 there is an account opened with Mrs. Alden. It commences September 11th 1856, and continues till April 27th 1857. The debits then amounted to $145.48, and were all for merchandise. The credits to that date were, “ Merchandise, $1,” “ H. Hooker, $144.48,” the latter dated May 1st 1857, then balancing the account; after this time there were no credits to Mrs. Alden. The account continued against her with charges of merchandise, cash, “ order C. H. Alden,” &e., till June 28th 1859. After which followed these three items :—</p> <p>“1860.</p> <p>May 8th, “ per draft Alden $5 64</p> <p>July 2d, “ Burns & Sieg’s draft, 30 99</p> <p>1861.</p> <p>January 1st, “ “ “ “ 9 76”</p> <p>The whole including the items after May 1st was footed up, $309.79; after this there was no other account with Mrs. Alden. The auditor reported allowing the Alden claim.</p> <p>On exceptions by the executors of Hooker, the Orphans’ Court (Ludlow, J., delivering the opinion) sustained the exceptions for the reason that there was no evidence “ reviving the debt or preventing the operation of the statute,” and recommitted the case to the same auditor, “ with instructions to readjust his report in conformity with these views.”</p> <p>The auditor accordingly, in another report, disallowed the Alden claim. To this report exceptions were filed, which were dismissed and the report confirmed absolutely, December 13th 1869.</p> <p>The executors of Alden appealed to the Supreme Court, and assigned the decree of confirmation for error.</p>

<p>1. An assignment in bankruptcy, no matter when made, takes effect as if it had been made at the commencement of the proceedings.</p> <p>2. Of such assignment by operation of law, the whole world is bound to take notice.</p> <p>3. Payment to a bankrupt after filing the petition, although bonft fide made and without actual notice, is not valid.</p> <p>4. Born, after the filing of a petition against him, deposited in a bank money which was afterwards paid on his checks. Held, that the payments were valid.</p> <p>5. The assignment transfers only the property which the bankrupt owned at the filing of the petition.</p> <p>6. The earnings and acquisitions of the bankrupt after the commencement of the proceedings are his own, subject to his eventual discharge.</p> <p>7. If he does not succeed in obtaining his. discharge, his subsequent acquisitions remain liable to his creditors.</p> <p>8. The onus is upon the assignee to prove that the property was the bankrupt’s at the commencement of the proceedings.</p>

<p>Certificate from Nisi Prius: No. 418, to January Term 1867.</p> <p>This was an action of debt in which a summons issued, February 27th 1867, at the suit of Daniel T. Moore and Burrows P. Rich, against The Green and Coates Streets Passenger Railway Company. The declaration contained three counts—</p> <p>1. That the plaintiffs owned the horses, coaches and other stock of an omnibus line on Green and Coates streets, Philadelphia, and the defendants were created a corporation to construct a railroad along Green and Coates streets, with the privilege to use those streets “ after the purchase at the option of the owners, of the stock * * * used thereupon, at a price to be assessed by three persons chosen pursuant to the charter of the defendants.” The plaintiffs averred “ that being the owners of the stock as aforesaid, and exercising the option granted to them by the charter of said defendants, of which they had notice, persons were chosen conformably to the directions of the Act of April 21st 1858 to assess the price thereof, and that said persons, on the 23d day of November 1858, did appraise the same at the sum of $24,797.20, notice whereof was had by said defendants; and the said plaintiffs say that said defendants did thereafter use the streets as aforesaid, and thereby became liable to pay to the said plaintiffs said price assessed as aforesaid for the said stock.” Wherefore an action accrued to said 'plaintiffs to recover from the defendants the sum of $24,797.20, with interest, &c.</p> <p>2. That the defendants accepted a certain franchise to carry passengers for hire on and along Green and Coates streets, with the condition precedent that, before commencing to use the said streets, they should purchase, at the option of the owners, the stock of horses, &c., at a price to be assessed by one disinterested person chosen by the owners, one by the defendants, and one by the two thus chosen, who together should be disinterested persons, and should appraise such stock. The plaintiffs averred that the defendants commenced their road on the 5th day of September 1858, and at said time there were used upon said streets by the plaintiffs as owners, ninety-two horses, &c.; and that the three disinterested persons did appraise said stock at the value of $24,797.20, of which defendants had notice. The plaintiffs averred - that the value assessed as aforesaid was final and binding on plaintiffs and defendants; wherefore an action accrued to plaintiffs to recover from the defendants the sum of $24,797.20, with interest.</p> <p>3. That before the entering of the decree hereinafter mentioned, the defendants became a corporation as above mentioned, and were required, before commencing the construction of their road, to purchase, at the option of the plaintiffs, the stock of their omnibus line at a price to be ascertained by appraisement as above mentioned. The plaintiffs gave notice to the defendants of their option that the defendants should purchase the same before commencing to use said streets; the defendants commenced to use said streets before the purchase as aforesaid, whereby the said statute was disobeyed, &c., and the plaintiffs to secure obedience thereto exhibited their bill in the Court of Common Pleas, Philadelphia, against the said defendants, who filed an answer thereto ; that the stock was appraised at $24,797.20, and the appraisement reduced to writing. The plaintiffs afterwards brought a supplemental bill, the defendants filed an answer, and a decree was entered as follows: — “ And now, May 5th 1859, it appearing to the court from the bills and answers, and it being admitted by the answer filed that the defendants are liable to pay for the stock, &c., at such valuation and appraisement as shall be made by virtue of the Act of Assembly; and it also appearing to the court that such appraisement or valuation has been filed and made part of the supplemental bill, the court did order that the appraisement or valuation as above of $24,797.20 be held as valid, binding and conclusive on the parties hereto.” Wherefore an action accrued to the plaintiffs to receive from the defendants the amount of said decree, with interest from the date that the same was entered, &c.</p> <p>The defendants pleaded “ml debent, payment, &c.,” and the Statute of Limitations.</p> <p>The plaintiffs replied to the 1st and 2d pleas and demurred to the 3d.</p> <p>The case was tried, December 21st 1868, before Mr. Justice Agnew.</p> <p>On the trial the following matters appeared:—</p> <p>On the 15th of September 1858, the plaintiffs filed a bill in the Court of Common Pleas, setting forth that the defendants were proceeding to construct their road without having the stock of the plaintiffs appraised, &e. The prayer of the bill was to restrain the defendants from taking any steps to construct their railway before having the stock appraised and purchasing it, &c.</p> <p>On the 1st September 1858 the defendants notified the plaintiffs that they were ready to purchase the stock and appoint an appraiser.</p> <p>On the 23d of October 1858 the Court of Common Pleas awarded an injunction restraining the defendants from proceeding to take up the streets, lay the rails, &c., until the further order of the court: Provided, however, that the defendants have liberty so far to complete the said road on Green street down as far as Third street, so as to render the same passable, and of no inconvenience to travelling over the same street; but no other or further work to be done by them on either of the said streets.</p> <p>John J. Kersey was appointed appraiser on the part of the plaintiffs, John Jacobs on the part of the defendants; Abel Lu-kens was selected by the other appraisers as the third. All the appraisers met and consulted together. Kersey and- Lukens, on the 23d of November 1858, made an appraisement in writing, valuing the stock at $24,797.20. John Jacobs appraised the property at $11,674.80. On the 6th of January 1859, the plaintiff filed, in their equity suit, a supplemental bill, setting forth the appraisement of Kersey and Lukens; that the "defendants refused to purchase the stock, &c., and pay the appraised value, &c. They therefore prayed for such further relief as the circumstances might require, &c.</p> <p>The defendants answered that the appraisers had not agreed on any appraisement; that the appraisement of two only was of no validity; that the appraisers did not value the stock at its cash or market value, but added a supposed value of what it would be worth if there had been no railway on Green and Coates streets.</p> <p>The defendants demurred to the bill because the plaintiffs had an adequate remedy at law.</p> <p>On the 5th of March the court decreed “ that the appraisement of $24,797.20 be held as valid, binding and conclusive on the parties hereto, and that the demurrer to the complainants’ supplemental bill, as to so much thereof as prays a decree to enforce payment of said amount by respondent, be sustained.”</p> <p>On the 24th of March 1859, an Act of Assembly was passed authorizing the District Court to appoint three appraisers, where appraisers theretofore appointed had failed to agree; and declaring that the decision of a majority of such appraisers when approved by the District Court should b'e final, and that after the appointment of appraisers by the District Court, any court which had granted an injunction against a passenger railway company, in consequence of appraisers failing to agree, might dissolve the injunction.</p> <p>The District Court, on the 11th of April, appointed three appraisers.</p> <p>On the 16th of April, the counsel with the company moved that the injunction theretofore granted be dissolved.</p> <p>The appraisers of the District Court reported, on the 9 th of May, that they had appraised the stock at $12,079. On the 13th of May, “ on motion of the counsel for the company, the court granted a rule to show cause why the same should not be approved.”</p> <p>“ On motion of W. W. Juvenal, Esq., the court grant leave to defendants to file exceptions to the award of appraisers filed. Time to expire May 28th 1859.” It did not appear that any further proceedings were had in the District Court.</p> <p>On the 23d of May the Court of Common Pleas decreed: “ That the special injunction heretofore granted be dissolved upon the following terms," viz.: That the defendants do pay to the plaintiffs the sum of $24,797.20, the amount of the award, without prejudice to the right of the defendants to contest the same, as hereinafter stated, upon the complainants giving to defendants satisfactory security upon real estate in this county, to be approved by this court, to refund to defendants so much of said sum of $24,797.20, as may be finally determined, by due course of law, not to be owing to the complainants, by virtue of said award. And in case the said complainants shall not give such satisfactory security as aforesaid within ten days from the date hereof, then the defendants shall be at liberty to pay the said sum of $24,797.20 into this court, subject to the future order thereof; and upon payment in either case as aforesaid, the complainants shall at the same time deliver to the defendants the omnibus stock, &c., included in said award.</p> <p>“ And it is further ordered, that an amicable action be entered forthwith by and between the plaintiffs and defendants, in the Supreme Court for the Eastern District of Pennsylvania, or District Court, in such way that the legal and binding effect of said award shall be the main question in the case for the decision of the said Supreme Court, and that the final decision of said court shall determine the rights of the respective parties to the said sum of $24,797.20, with the interest thereon, paid as aforesaid.</p> <p>“ And it is further ordered, that the complainants shall be at liberty to contest, in any way which they may be advised to adopt, the award filed in the District Court of Philadelphia, in the sum of $12,079, without any prejudice to their rights under the charter of incorporation of the company defendants, if such they have, independently of said awards or either of them: and in case said last-mentioned award should be finally confirmed, and it should be adjudicated in due course of law, that the same is binding and conclusive upon said parties; then and in such case the complainants shall not be bound to refund, and the defendants shall not be entitled to receive from and out of said sum of $24,797.20, and the interest thereon, so much thereof as may be equivalent to the amount of said award filed in the District Court aforesaid, and interest thereupon, as approved and confirmed.”</p> <p>On the - 26th of May the parties agreed to dissolve the injunction on the terms fixed in the decree, with the following modifications, instead of the payment of the money:—</p> <p>“ 1. The defendants to pay absolutely to William W. Juvenal, Esq., attorney for plaintiffs, $15,000.</p> <p>“ 2. To pay absolutely to him hereafter the increase, if any, made on award in District Court, as soon as approved, beyond the above $15,000.”</p> <p>The $15,000 were paid according to the agreement.</p> <p>On the 6th of June 1866, the plaintiffs moved for a final injunction which was refused, and a decree was 'made in accordance with that of May 23d 1859, as modified by the agreement of May 26th.</p> <p>From this decree the complainants appealed to the Supreme Court; the decree was there affirmed; the opinion, as follows, being delivered by</p> <p>Agnew, J. — In this case each party had secured an award to suit him, the plaintiffs for $24,797.20, and the defendants for $12,079. The court below decreed, on the 23d of May 1859, to dissolve the preliminary injunction in such a manner as to secure the payment of the larger award to the plaintiffs conditionally, and the delivery of the property of the plaintiffs’ omnibus line to the defendants absolutely.</p> <p>The condition was that the plaintiffs should refund so much of the larger award as should be found not to he recoverable. The decree then provided for an amicable action to be instituted between the parties in the Supreme or District Court, in which the legality of the larger award should be tested, and also enabled the plaintiffs to contest the legality of the lesser award. The effect of this was to enable the defendants to receive the stock of the omnibus line, and dispose of it without the loss which delay would cause, and to have the use of the streets for their railway; while it gave to the plaintiffs the highest sum at which the omnibus line stock was appraised, subject to refund so much as the result of the contest upon the awards would show he was not entitled to receive. There was nothing unfair in this, hut it did not suit the parties, as the payment of so much money by one side, and giving so much security to refund by the other, was inconvenient. Hence, they agreed to modify the decree so that the defendants should pay $15,000 absolutely, being an advance of $2921 on the lower award, and deposit their own mortgage-bonds for any further sum to he received. The remainder of the decree stood as before, and all that was necessary on the part of the plaintiff, if he claimed more, was to proceed under the decree. This modification was made the 26th of May 1859. The $15,000 were paid, and then the plaintiff permitted the matter to rest until June 1866, a period of seven years. After pocketing the $15,000, and taking from the defendants the power to contest the difference of $2921, the plaintiff now seeks to set aside the whole decree, after seven years’ acquiescence, and to open the whole case to litigation. This is unconscionable, and we cannot permit him to do so. He was never prevented from proceeding, in the mode pointed out by the decree, to recover any sum he was entitled to receive above the $15,000 already paid. The decree of the 7th of June 1866, as we understand it (a copy not being furnished in the paper-hook), simply refuses a final injunction, and modifies the decree of 23d May 1859, to conform it to the agreement of counsel of tbe 26th May 1859. This would leave the door still open to proceed by amicable action, under the decree, to test the validity of the larger award, and thereby receive the remainder of the sum awarded, if it should be sustained. It is not our purpose, as it certainly is not'our duty, now to decide the question of the validity of the award, or point out to the plaintiff the course he should pursue to secure its payment. But we hold that after the plaintiff has received $15,000 absolutely, and delayed for seven years to take any step upon the former decree, it would now he inequitable to set it all aside.</p> <p>Decree of the Common Pleas affirmed at the costs of the appellant.</p> <p>The plaintiffs, having given in evidence the charter of the defendants, the record of the proceedings in equity as above stated, and the appraisement of Kersey and Lukens, examined Kersey and Lukens as to the manner of taking the appraisement, and the principles upon which they fixed the value of the stock. After plaintiffs had closed, the defendants moved for a nonsuit on the ground that an appraisement by two only of the appraisers was not valid. The court refused the motion.</p> <p>The defendants then examined Jacobs, the third appraiser, who also testified as to the manner of the appraisement. They gave evidence tending to show that the other appraisers fixed their valuation of the stock with reference to the loss of plaintiffs’ business in their omnibus line. Also the proceedings in the District Court, &c., and that they had paid the plaintiffs the $15,000.</p> <p>The plaintiffs submitted these points:—</p> <p>1. The appraisement sued on was valid, and the defendants are liable for the amount thereof, allowing them a credit of $15,000.</p> <p>2. As a valid appraisement had been made under the charter of defendants, the proceedings in the District Court were beyond their jurisdiction, and the same do not vitiate the appraisement sued on.</p> <p>8. As the Common Pleas decreed that the plaintiffs should he at liberty to contest the award filed in the District Court, without any prejudice to their rights; the appearance by their counsel is not a submission to the said award.</p> <p>4. The award filed in the District Court is not an award within the meaning of the Act of 1859, as the same “ was not approved by the judges of the said court.”</p> <p>The defendants’ points were:—</p> <p>1. If the jury believe from the evidence that the appraisement made by Lukens and Kersey was made more than six years before the bringing of this suit, the verdict must be for the defendants.</p> <p>2. Under the evidence in the cause, the plaintiffs cannot recover upon the 3d count of their declaration, and on this count the verdict should be for defendants.</p> <p>3. The paper called an appraisement, signed by Lukens and Kersey in this case, is not such a paper as the plaintiffs can recover on, because it was not signed or acquiesced in by Jacobs, one of the appraisers.</p> <p>4. The appraisement by the District Court appraisers was binding upon the parties, and superseded the appointment of appraisers by the parties.</p> <p>5. If the jury find from the evidence that Lukens and Kersey, or either of them, considered any question of “good-will,” or any question but that of the fair cash value of the articles themselves, in valuing the articles which they set out in the paper signed by them, then that paper signed by Lukens and Kersey is not to be considered by the jury, but altogether to be discarded by them in arriving at their verdict.</p> <p>The court charged:—</p> <p>“The appraisement made by Kersey and Lukens was a good and binding assessment under the Act of Assembly, unless these appraisers made a plain mistake in the valuation of the stock by adding to the value of the specific articles a sum for compensation for the loss of the use of the omnibus line on Green and Coates streets; or any other matter foreign to the subject of appraisement presented by the law. But if the appraisers appraised the articles of stock specifically at what they believed was their fair market cash value, the appraisement is binding and cannot be set aside. The mere fact that the appraisers had vague impressions of a loss being suffered by the plaintiffs, will not affect their valuation if in point of fact they valued the property at what they believed to be the true and actual cash or market value of the stock. It is only in the case of a plain and clear mistake in making the appraisement that it can be set aside. The jury will decide, therefore, whether any such mistake was made by Kersey and Lukens by adding to the true and actual value of the stock a valuation of the good-will (as it is termed) of the streets, that is, for the loss of the use of the streets for their omnibus line, it is not the province of the jury to determine the value of the stock for the purpose of considering the error of valuation, if any, but to determine whether a plain mistake has been made by adding to the true value of the stock something which the act does not authorize to be added. If satisfied that such a mistake was made by these appraisers, the verdict must be for the defendants; in that event the award fails. If not so satisfied on the evidence the verdict must be for the plaintiffs for the unpaid balance of this appraisement, with interest.”</p> <p>The court answered the plaintiffs’ points as follows:—</p> <p>1. This is correct unless there was such a plain mistake as has been stated in the charge.</p> <p>2. Affirmed.</p> <p>3. Affirmed in view of the state of the record in the District Court, there being no final approval of the award in that court when the final decree and modification in the Common Pleas took place, it became the düty of the petitioners in the District Court to prosecute their appraisement to a final confirmation in order to meet the terms of the decree in the Common Pleas.</p> <p>4. Affirmed in view of the proceedings and decree in the Common Pleas.</p> <p>Defendants’ points:—</p> <p>1. A demurrer being pending as to the plea of the Statute of Limitations, this point is declined at the present time, and the question of the effect of the statute is reserved for decision upon the demurrer, and I reserve also the question upon the record of the proceedings in the Court of Common Pleas and the District Court q{ how far the question of the Statute of Limitations is affected by these proceedings.</p> <p>2. Affirmed. The decree of the 23d of May 1859, opened the preceding decree of the 5th March 1859, and left the award itself as the subject of the controversy.</p> <p>3. Denied.</p> <p>4. Refused on the ground that the appraisement in the District Court was not finally approved, and in view of the operation of the proceedings of the Common Pleas upon both awards.</p> <p>5. The mere consideration 'of the question of “good-will,” or any question but the actual cash value of the articles themselves set out in the paper, will not vitiate the award or appraisement unless the appraisers added to the actual cash value of the articles a value in money for the “good-will,” or for any other matter which does not belong to the cash value of the articles. It is the actual incorporation with the value of the articles, of the value of some independent or foreign matter not authorized to be appraised, which constitutes the plain mistake referred to as vitiating the appraisement.</p> <p>The judge further charged:—</p> <p>“ The jury are not to decide upon the merits of the valuation made in the District Court. The actual value of the stock (as the jury might conclude it ought to be under the evidence) has no bearing on this issue except so far as it is a circumstance corroborating the testimony of Jacobs, tending to show that other elements did enter into the valuation'beside the actual cash value of the stock in the market. The decree of the Supreme Court referred to, left the question upon the award in suit untouched by that decree.”</p> <p>The jury found for the plaintiff $15,472.39, and for the defendants on the 3d count of the declaration.</p> <p>The defendants moved for a new trial.</p> <p>Upon the motion for a new trial and the demurrer, the following opinion was delivered by</p> <p>Agnew, J. — “ A decision against the plaintiffs upon the Statute of Limitations would leave the main question upon the appraisement untouched on a certificate to the court in banc, and in case of a reversal would require a second trial, and a second certificate to determine finally the vital question of the cause upon the appraisement. I think it better, therefore, to decide the question upon the Statute of Limitations against the defendants, and thus let all the questions go up to the court in banc at once.</p> <p>“ I am not changed in opinion as to the validity of the appraisement; but as to the other questions I shall express no opiniom — leaving to the defendants an open field upon the Statute of Limitations. *</p> <p>“ I, therefore, determine the demurrer and the reserved question on the Statute of Limitations against the defendants, overrule the motion for a new trial, and direct judgment to be entered on the verdict on payment of the jury fee.”</p> <p>The defendants had the case certified to the court in banc; and there assigned for error the affirmance of the plaintiffs’ 2d, 3d and 4th points, the denial of the defendants’ 3d and 4th points, and sustaining the demurrer to the plea of the Statute of Limitations.</p> <p>The plaintiffs Moore and Rich afterwards, on the 5th of March 1870, filed another bill in the Court of Common Pleas against the defendants, the Railway Company.</p> <p>The bill in its first nine paragraphs set out the proceedings up to the commencement of the suit in the Supreme Court.</p> <p>10. averred the commencement of the suit wherein the plaintiffs “respecting the decree of this court, declared solely on the said appraisement; hut the said defendants, in contempt thereof, pleaded thereto, that the cause of action had not accrued within six years — but the learned judge, who tried the issue of fact which was made on the validity of the said appraisement, confined the jury to said issue. And the case in said court so proceeded, that the said jury, on the fact, found in favor of the validity of said appraisement, and the learned judge who tried the cause found likewise on the law.</p> <p>11. “ It was the duty of the defendants to certify said record to the Supreme Court in such way that the legal and binding effect of said award should be the main question in the case for the decision of that court, that the final decision thereof should determine the right of the respective parties to the said sum of $24,797.20, under the decree of this court; whereas the issue presented was on the plea of the statute on which the same was exclusively decided.</p> <p>12. “ The defendants, by reason of, their avoidance of the question which this tribunal, by its decree, gave them the liberty of presenting in an action, have acted in contempt of said decree, and that it is against equity and good conscience, that as the said defendants secured the use of the streets in their charter by reason of the relation established and created by virtue of the decrees of this court, and have obtained possession of all of the property of your orators, specified in said appraisement, by reason of your orators’ reliance on the said decrees; that the judgment in their favor on the plea of the statute, should bar your orators from the recovery of the balance due them on said appraisement.</p> <p>13. “ As it was optional with this tribunal to award the entry of an action to determine the validity of the said appraisement, and as its validity, so far as the defendants permitted the same to he adjudged, has been affirmed in said action; it is now only equitable that your honors should decree the payment of said appraisement absolutely, as thereby only can full and adequate relief be afforded your orators.”</p> <p>The prayers were, that the defendants pay the sum of $9797.20, with interest, or be restrained from the use of Green and Coates streets.</p> <p>The defendants demurred to the bill for want of equity.</p> <p>On the 9th of July 1870, the Court of Common Pleas gave judgment for the defendants on the demurrer, and dismissed the bill.</p> <p>The plaintiffs appealed to the Supreme Court, and assigned the refusal of their prayers by the court below and the dismissal of their bill, for error.</p> <p>This appeal (No. 89, to January T. 1871), was heard February 7th 1871, before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., being at Nisi Prius.</p>

<p>Appeal from the decree of the Orphans’ Court of Philadelphia: In the estate of George S. Hamill, deceased: No. 850, to January Term 1869.</p> <p>The proceedings were upon the account of John Yard, Jr., administrator c. t. a., of George S. Hamill, deceased. The account was referred to Charles Buckwalter, Esq., who made a report February 16th 1866, which was confirmed.</p> <p>It appeared that the decedent died in August 1863, leaving a will, which was dated October 16th 1864, by which he gave distinct ground rents to each of the following associations and churches, viz. :</p> <p>1. To the poor of St. Francis Xavier Roman Catholic Church of Fairmount, now and for ever and to be .applied for their use annually, &c.</p> <p>2. To the poor of the Reformed Presbyterian Church of Fairmount, and to be applied to this use now and for ever annually, &c.</p> <p>3. To the poor of the German Reformed Church, Race street between Third and Fourth streets, * * * to be applied annually for their use now and for ever, &e.</p> <p>4. To the poor of St. Augustine’s Roman Catholic Church, Fourth street near Vine street, * * * to be applied annually, now and for ever, * * * for their use, &e.</p> <p>5. To the poor of Logan Square Presbyterian Church, to be applied for their use, annually now and for ever, &c.</p> <p>6. To the poor of Emory Methodist E. Chuch, on Callowhill street between Eighteenth and Nineteenth streets, to be applied to their use, annually now and for ever, &c.</p> <p>7. To the House of the Good Shepherd, on Twenty-second street below Chestnut street, * * * to be appropriated for their use now and for ever, &c.</p> <p>8. To St. Ann’s R. C. Widows’ Asylum, now and for ever, &c.</p> <p>9. To St. Joseph R. C. Hospital, on Girard Avenue, and to be applied to that use now and for ever, &c.</p> <p>10. To the Temporary Home (Protestant, on Twenty-third street, near Parrish, now building), to be applied for that use now and for ever, &c.</p> <p>11. To the Protestant Episcopal Hospital, situate in the late district of Richmond, and to be applied to that use now and for ever, &c.</p> <p>“ The 1 to 11 donations is to remain with them for ever, that is, they are not to be sold. The interest of the principal is only to be applied to their use. As regards the churches, their interest of the principal is to be given to the poor of the respective churches during the winter, say the month of January in each year, at the discretion to (of) the pastor or trustees. The other institutions will receive their instalments as the rent comes due April and October.</p> <p>He gave the residue to Margaret H. Kelly.</p> <p>He further directed :' “ Should there not be found enough to pay the donations at first, my executor will collect all from ground-rents coming due, before assigning them over to the proper ones —(that is, he will continue to collect money, the ground-rents) until all donations are paid.”</p> <p>The auditor in his report says: * * * “In the will of Dr. Hamill there likewise appear a number of devises of ground-rents to churches and charitable institutions, and in the account filed by the accountant he charges himself with the collection of certain of these amounts set forth in detail therein, and amounting in the aggregate to the sum of $547.75. These collections were made by the accountant, under what he regarded as his duty, under one of the provisions of the will. (That last above stated.) These ground-rents collected are still in the hands of the accountant. A number of claimants appeared before the auditor on behalf of' the churches and charitable institutions to whom these ground-rents have been devised, and presented their claims. Objections were made to the same on behalf of the accountant and the residuary legatee, and among others, urging that the devises of these ground-rents under the various sections of the will created perpetuities. On these objections being presented, it was agreed by all interested that, * * * the question as to the awarding of the several specific legacies under the will to the several churches and charitable institutions, be submitted to the court in a case stated at as early a period as possible. The auditor therefore directs the accountant to retain in his possession all the ground-rents since collected by him until the court shall direct the disposition of the same.”</p> <p>The ease provided: “ If the court shall be of opinion that the devises of the ground-rents to the various devisees or any of them, are good in law, then a decree is to be entered accordingly, directing also the administrator, c. t. a., to pay all arrears collected by him since the date of the auditor’s report to the devisees who may be found respectively entitled to them, after deducting any portion that may have been required to make up any deficiency in payment of the pecuniary legacies; but if the court should be of opinion that the devises or any of them are void for any reason, then a decree to that effect is to be entered.</p> <p>“ The costs of the cause and reasonable counsel fees to be paid out of the arrears in the hands of the administrator.”</p> <p>The Orphans’ Court entered a decree for the several claimants or devisees of the rents, &c.</p> <p>The administrator appealed, and assigned the decree of the Orphans’ Court for error.</p>

<p>1. “Domestic distilled spirits,” in the Acts of April 15th 1835 and April 10th 1867, means spirits distilled within Pennsylvania.</p> <p>2. In a legislative sense, all productions within the state are domestic; those without, foreign.</p> <p>3. The Act of April 21st 1858 is a mere extension of inspection to all domestic distilled spirits of the kind meant in the Act of 1835.</p> <p>4. The Act of 1867 did not extend the inspection laws beyond the subjects of them under previous acts.</p> <p>5. The Acts of 1835, 1858 and 1867 are in pari materid.</p> <p>6. Parol evidence “that all spirits distilled within the United States are known as “ domestic distilled spirits,” is inadmissible.</p> <p>7. Spirits manufactured in another state and rectified here, are not within the inspection laws as to “domestic distilled spirits.”</p> <p>8. The Act of 1867 is penal and must be construed strictly.</p> <p>9. The inspection laws were enacted to give character abroad to our own manufactures and insure a market on account of the place of their origin.</p> <p>10. Case of Two Hundred Chests of Tea, 9 Wheat. 430, commented on.</p>

<p>1. In an extraordinary flood, a bridge was carried away and thrown upon land of a lower owner, and damaged it. Held, that without more, a presumption that it was negligently constructed did not arise.</p> <p>2. The maxim, Actus Dei neminifacit injuriam, applied.</p> <p>3. The concurrence of negligence with the act of God is necessary to fix a party with liability for mischief done in such cases.</p> <p>4. A bridge was washed by a flood upon the land of a lower owner : Held, that it was not the duty of the owner of the bridge to remove it.</p> <p>5. It is not essential to his immunity, that the owner of the bridge should have abandoned his property in it.</p> <p>6. The landowner can always remove it himself.</p> <p>7. Whether the owner of the bridge can maintain replevin against the landowner without tendering the expense of removal, quaere?</p> <p>8. Lehigh Bridge Co. v. Lehigh Coal & Nav. Co., 4 Bawle 94, and Poster v. Juniata Bridge Co., 4 Harris 393, remarked on.</p>

21, to July Term 1869. This was an attachment execution by William Raiguel and others, trading as W. & H. R. Raiguel, against Mary A. McGrath, defendant, and Charles Magee, C. 0. Swope, J. R. Hicks and Isaiah Hicks, trading as Magee, Hicks & Co., and Charles Magee, garnishees. The attachment was issued September 26th 1868; it was not served on Magee, but was served on the other garnishees.

<p>1. Tyler died in 1864, at his death there was found in his possession an unendorsed note dated June 5th 1861, to him from Connelly, who had died in 1863. In a suit on the note, under the plea of non assumpsit, drafts by Tyler on Connelly also unendorsed, and proof that Connelly had been able to pay the note and that Tyler was embarrassed would be evidence.</p> <p>2. Prom this evidence a jury might infer that the relation of the parties was not that of debtor and creditor.</p> <p>3. Such evidence was not relevant under the plea of payment only.</p> <p>4. This is so, although it does not appear that drafts had been negotiated or in circulation.</p> <p>5. If a drawee retains a bill an unreasonable time the holder could sue him in trover.</p> <p>6. A drawee may demand twenty-four hours to deliberate whether he will accept.</p> <p>7. Endorsed bills, cheeks or orders for the payment of money on delivery of goods, are primá facie evidence of payment.</p> <p>8. A draft of Tyler, payable to his own order, on Connelly, found in Connelly’s possession, was evidence of payment by Connelly.</p> <p>9. Tyler’s own endorsement was not necessary to Connelly as a voucher.</p> <p>10. If Tyler had made an endorsement to another, his endorsement or some proof .of payment to him would have been necessary.</p>

<p>Error to the Court of Common Pleas of Montgomery county: No. 97, to July Term 1868.</p> <p>The action in the court below was assumpsit, by James L. Barbour and others, partners, &c., against Jacob Erick, Ephraim B. Erick and Amos Erick, partners, trading as Jacob Erick. It was commenced October 31st 1867. E. B. Erick filed an affidavit denying the partnership. The defendants pleaded non assumpsit with leave to give the special matters in evidence.</p> <p>The ease was tried May 27th 1868, before Chapman, P. J.</p> <p>Eor plaintiffs: J. L. Hahn testified, he was a partner with Jacob Erick from August 14th 1861 till September 1862, and always regarded Ephraim and Amos as partners. Ephraim called on witness for the books, and said he had as much interest in the concern as Jacob. The witness proved a book to be that of Erick & Hahn for 1862; in this book were charges to J. Frick & Co., and to “Amos.” The plaintiffs offered the book in evidence; they were objected to by the defendants, admitted and a bill of exceptions sealed.</p> <p>J. Q. Adams, clerk of plaintiffs, testified: “ The account in plaintiffs’ledger was opened as ‘Erick.’ Jacob would come in and we would mark it ‘ Jacob;’ Amos the same, and then we would carry it to account of Erick. I regarded them as partners.”</p> <p>The book of plaintiffs contained in the same account entries to “E. B. Erick,” to “Jacob Erick,” to “Mr. Erick,” to “Erick.” The plaintiffs gave in evidence a bill-head, “E. B. Erick, Norris-town, Cigar Store.” Also, letter from Jacob Erick to plaintiffs, dated November 25th 1864. “ We have filled lot of segars,” &c. Witness further testified that he had received money from E. B. Erick and Jacob Erick, who, in making payment, would ask the amount on the ledger. Defendants never objected to the charge being made to “ Erick.”</p> <p>Defendants gave evidence for the purpose of disproving the partnership. They also gave in evidence the certificate of Jacob Erick’s discharge as bankrupt.</p> <p>The court charged:—</p> <p>“ Where are their receipts ? If these were produced they might throw light upon the subject. It is singular that these parties should have dealt so long together and have paid so much money and no receipts have passed between them. They would show, if produced, how the defendants dealt with the plaintiffs, whether as partners or as individuals. Now, where are the receipts ? To be sure, plaintiffs had a right to call upon defendants to produce them, and not having given them that notice, the defendants are entitled to whatever"benefit may be derived from that omission.”</p> <p>The verdict was for the plaintiffs for $1410.15.</p> <p>The defendants took a writ of error and assigned for error the admission of Frick and Hahn’s book, the charge of court, and that judgment was entered against Jacob Frick, &c., he having been discharged as a bankrupt.</p>

This was an appeal, No. 52, to July Term 1870, from the Orphans’ Court of Montgomery county, in the estate of Gabriel Kline, deceased. The administrators, &c., of the decedent filed their administration account, in which they charged themselves with $9568.07, proceeds of personal estate, and $7244, proceeds of real estate. After taking sundry credits, the balance on their account was $12,951.91.

169, to January Term 1870. The auditor’s report in this case exhibits the following facts: George Guest being owner of a mill, &c., in Norristown, on the 1st of March 1865 conveyed it to Perry M. Hunter and Samuel DeHaven, subject to a mortgage to Hugh J. Steen for $8000.

161, to January Term 1870. This was an action of debt, commenced May 13th 1867, by Jotham A. Kline against David Blyler on a judgment in foreign attachment recovered by the plaintiff against the defendant in the Superior Court of Chatham, Georgia. The writ in Georgia was issued February 9th 1860,'directing the sheriff to attach so much of the defendant’s property as will make $750. An affidavit that the defendant resided out of the state was filed in the suit.

<p>1. Tenant for life leased the premises and died during the year, Held, that uncut grass belonged to the owner of the reversion and not to the lessees as emblements.</p> <p>2. Emblements are corn and other growth which are produced annually : not spontaneously, but by labor and industry.</p> <p>3. Such productions arefruatus industriales.</p> <p>4. Growing grass, even if produced from seed and ready to be cut for hay is not emblements, because the improvement is not distinguishable from natural product, although it be increased by cultivation.</p>

Robert Parke and others filed a bill against The Doe Run and White Clay Creek Railroad Co. The bill set out the incorporation of the defendants “ with power to construct a railroad from a point on the Pennsylvania Central Railroad, at or near Parkesburg, in Chester county; thence by the most available route along the Buck run and that branch of White Clay creek that runs west of Chatham, to the state linethat the plaintiffs were stockholders in the company; that instead of…

82, to January Term 1870. This was an action of trespass by Patrick Kennedy against Patrick D. Barnett. The writ Avas issued November 23d 1865. The cause was tried October 1st 1869, before Ryon, P. J. The evidence was that the plaintiff on the 4th of July 1865, was before Jacob Reed, Esq., prosecuting a complaint against certain persons for assault and battery, &c. Whilst there he was informed by a constable that he held a warrant against him, issued by the defendant.

279, to January Term 1870. This was an action of assumpsit, commenced November 21st 1868, by William S. Malany against the Directors of the Poor of Chester county, for services as physician rendered to Albert M. Smith, a pauper.

<p>Error to the Court of Common Pleas of Snyder county: No. 235, to January Term 1870.</p> <p>This was an action of trespass d. b. a. by Joseph Marks against Benneville Kramer and others. The writ was issued September 9th 1869.</p> <p>The defendants were a committee of the religious denomination of “United Brethren in Christ,” who were holding a camp meeting in Chapman township, Snyder county. The plaintiff was a huckster who had a stall in the vicinity (less than three miles) of the camp meeting, for the sale of various articles of food and refreshment. The evidence was conflicting as to whether the plaintiff had spirituous or fermented liquors. He was warned by a justice of the peace and constable and also by two freeholders of the county to desist and remove his stall and goods. He refused. Under the direction of the justice, constable and two freeholders, the constable seized the goods and sold them.</p> <p>This proceeding was under the 1st and 2d sections of the Act of April 2d 1822: 7 Sm. L. 660 j Purd. 865, pi. 4, 5.</p> <p>Sect. 1. “ It shall not be lawful for any person or persons to erect, place or have any booth, stall, &c., for the purpose or use of selling, giving or otherwise disposing of any kind of articles of traffic, spirituous liquors, wine, porter, beer, cider, or any other fermented, mixed or strong drink (excepting as hereinafter excepted), within three miles of any place of religious worship in this state, during the time of holding any meeting for religious worship at such place.”</p> <p>Sect. 2. “ If any person or persons shall or do violate this act by erecting, fixing or having any booth, stall, &c., for the purpose or use aforesaid, or by selling, bartering, giving or otherwise disposing of any kind of articles of traffic, spirituous liquors, wine, porter, beer, cider or other fermented, mixed or strong drink, in, at or about, any such booth, stall, &c., for the purpose aforesaid, within three miles of any place of religious worship, during the time of holding any meeting for religious worship at such place, the person or persons so offending shall first be informed of his, her or their violation of this act, and shall be warned by any justice of the peace, constable or two freeholders of the county, where the offence is or shall have been committed, to desist from such offence, and to remove such booth, stall, &c., together with all such articles, spirituous liquors, wine, porter, beer, cider or other strong drink, belonging to or in the possession of the person or persons so offending, and if such person or persons on receiving such information or warning, shall forthwith cease to offend against this act, and shall remove as aforesaid, at least three miles from such place of religious worship, then no further proceedings under this act shall be had against such person or persons; but if such person or persons shall refuse or neglect immediately to remove as aforesaid, when informed and warned as aforesaid, then all the said articles of traffic, spirituous liquors, wine, porter, beer, cider and other fermented, mixed and strong drink, and all the vessels, chests and other things containing the same, together with such booth, stall, &c., prepared or used for the purpose aforesaid, shall be and are hereby declared to be forfeited, and it shall be lawful for any justice of the peace and constable, with two freeholders of the county, to seize and take possession of all or any part of the said forfeited articles and liquors, together with such booth, stall, &c., and at any time within ten days after, to advertise and sell the same, and after deducting and paying the necessary and lawful expense of such seizure and sale, the residue of the proceeds of such sale shall he paid to the overseers of the poor of the township, &c.</p> <p>The court, amongst other things, charged : * * *</p> <p>“ We cannot think that the only thing intended to be prohibited by £ any kind of traffic,’ refers only to spirituous liquors, beer, &c. To our mind, it is a very narrow construction to put on this Act of Assembly, but as we said above, this act has received a construction by the court of last resort in our state, and we feel bound by their construction, and we submit our judgment to theirs, and instruct you that the law is to be construed as that court has done in the case of Eetter v. Wilt, 10 Wright 459.</p> <p>“ This then being the law, we instruct you in the language of Justice Thompson. The prohibition in the act is against the ‘traffic’ in 1 spirituous liquors, wine, porter, beer, cider, or any other fermented, mixed or strong drink.’</p> <p>“ If the plaintiff had any of these prohibited articles there for sale he was violating the law, and the defendants had a right to do as they did do, but if he had not any of these things at his booth for sale, then the law would not justify them in their acts and the plaintiff would be entitled to recover.</p> <p>“If you shall believe that the plaintiff did not have any intoxicating liquors at his booth, then under the decision above referred to, the defendants would not be protected by its terms. Then if you shall so find, what damages has the plaintiff sustained?”</p> <p>The verdict was for the plaintiff for $75.</p> <p>The above portion of this charge was assigned for error by the defendants, who removed the case to the Supreme Court.</p>

257, to January Term 1870. On the 19th of April 1868 Jacob Hilbish and others filed a bill against Ira Catherman and others, school directors of Lewis township, Abraham Mensch, treasurer, and Christian Mensch, collector of the same township. The bill set out:— 8.

242, to January Term 1870. On the 14th of April 1868 Jonathan Reitz filed a bill against John II. Eisher, and on the 16th of July filed an amended bill. The bills set out:— 1 arid 2.

237. This proceeding originated by an order issued November 2d 1868, by two justices of the peace of Selinsgrove, Snyder county, removing Moses W. Wallace, a pauper, from Selinsgrove to the township of Lower Augusta, Northumberland county. On the 12th of May 1869, Lower Augusta appealed. On the hearing, before the Court of Quarter Sessions, the appellees offered in evidence the depositions of Julia Goodin and others.

<p>1. A municipal corporation is a public corporation created by the government for political purposes, having subordinate and local powers of legislation.</p> <p>2. A municipal corporation is merely an agency instituted by the sovereign, to carry out in detail the objects of government; revocable and having no vested right to any of its powers or franchises.</p> <p>3. The charter of a municipal corporation is not a contract with the state and is subject to the control of the legislature, who may enlarge or diminish its territorial extent or functions.</p> <p>4. The legislature may modify the internal arrangement of a municipal corporation or destroy it.</p> <p>5. While a municipal corporation thus exists, it enjoys the rights and is subject to the liabilities of any other corporation, public or private.</p> <p>6. The legislature cannot authorize a municipal corporation to violate a contract.</p> <p>7. The sovereign may continue the existence of a municipal corporation, and assume the appointment of all its officers.</p> <p>8. The legislature cannot by contract, invest any municipal corporation with an irrevocable franchise of government over any part of its territory.</p> <p>9. A municipal corporation may be a trustee under grant or will, for public purposes germane to its objects.</p> <p>10. The trusts under Girard’s will and the other trusts confided to Philadelphia, are germane to its objects as a municipal corporation.</p> <p>11. The trusts are charities; charities axe public trusts.</p> <p>12. A trust for a particular person is not a charity.</p> <p>13. Indefiniteness is of the essence of a charity.</p> <p>14. A municipal corporation by accepting such trusts cannot thereby invest itself with any immunity from legislative action.</p> <p>15. A municipal organization, trustee of a charity, cannot set up a vested right to maintain such organization in the form in which it was when the trust was created, and prevent the state from changing it as the public interests may require.</p> <p>16. That a judge is a trustee of a charity is no disqualification in him to sit.</p> <p>17. The Act of June 30th 1869, authorizing the judges of the Supreme Court, and other judges to appoint trustees for the trusts to the city of Philadelphia, under Girard’s will and others is constitutional.</p>

The appeal was by George S. West, deputy escheator, in a decree on a bill filed against him December 4th 1869, by the Philadelphia Saving… Held: as aforesaid, in excess of such value, shall not be hereby invalidated or prejudiced in title or otherwise.” Sect. 12. “ To avoid the evil of an indefinite increase of the property in mortmain and perpetuity, it shall not be lawful for any religious, charitable, literary or scientific society, association or corporation, present or…

64, to January Term 1870. The bill in this case was filed March 30th 1870, by The Pennsylvania Company for Insurance on Lives, &e., against George S. West and R. W. Jones. On the same day a special injunction was granted.

144, to January Term 1870. This was an action on the case commenced February 14th 1866, by Henry Wile against The Howard Express Company. Held: that when conclusions of fact are to be deduced from testimony, the case will not cease to be within the province of the jury because the evidence is clear, and could only be interpreted in one way by a man of sound judgment.

<p>1. A donor may create an active, operative trust, to preserve an estate and protect it against the husband or creditors of a beneficiary or to make it conduce to some useful and legal but temporary purpose, without infringing on the law against perpetuities.</p> <p>2. Entire freedom of disposition in a beneficiary, would impose an unreasonable restriction on the power of a benefactor to provide for the beneficiary’s future support.</p> <p>3. A trust will be supported notwithstanding the cestui que trust is a feme sole, provided that it be done in immediate contemplation of marriage.</p> <p>4. “Immediate contemplation of marriage,” means a marriage presently in view of the donor to take place with a particular person a short time after the instrument is to go into effect.</p> <p>5. The marriage must be in immediate view when the trust is created.</p> <p>6. On the termination of the coverture, the trust falls and is not revived by a second marriage.</p> <p>7. That a marriage is in view, need not appear by the instrument creating the trust.</p> <p>8. The creation of the trust is evidence that the marriage was in contemplation of the donor, and when this is followed within a reasonable time by its consummation, it concludes the proof.</p> <p>9. McBride v. Smyth, 4 P. F. Smith 245, approved.</p>

9. This was a bill filed by Margaret Megargee against Henry M. Naglee and others, trustees under the will of John Naglee, deceased. John .Naglee was the father of the plaintiff; he died in February 1852.

61, to July Term 1869. This was an ejectment, commenced April 29th 1868, by John 33. Springer, trustee, &c., of Mary M. Clarke, late Ross, against Robert J. Arundel and the terre-tenants. The premises were a house and lot on Fourth street, Philadelphia.

<p>1. Barrett employed Johnson to sell his land for the sum it had cost him, which he stated was $28,000 ; -the commissions to be 2 per cent, on the cost and 30 per cent, on the amount beyond. Johnson sold the land for $36,000. In a suit for commissions according to the above terms on the whole sum, it was competent for Barrett to show that he was bound to pay to another, one-fourth of the peach crop on the land and that it was understood between him and Johnson that this one-fourth was an item in the cost of the farm.</p> <p>_ 2. The one-fourth of the peach crop was as if the land had been sold subject to liens to that amount.</p>

<p>Error to the District Court of Philadelphia: Of July Term 1869, No. 111.</p> <p>This was an action on the case for negligence, brought February 6th 1868, by Theodore Gr. Meier against The Pennsylvania Railroad Company.</p> <p>The plaintiff’s case was the following : — ■</p> <p>On the evening of February 7th 1867 Theodore Gr. Meier, the plaintiff in error, took passage on the train of defendants’ cars at Jersey City, bound for St. Louis. He occupied the sleeping car, which was the rear car of the train. On the following morning, about eight o’clock, at a point on defendants’ road between Tyrone and Altoona — the train running at a speed of twenty-six miles to the hour on an ascending grade — the axle of the forward truck broke in two places. The end of the car then dropped down and slid along the rails. The plaintiff was thrown forward so that his knee caught in the side-rest of the seat, and the ligaments of the right knee-joint were torn, and the bones of his leg were severely bruised.</p> <p>The defendants proved that new wheels and new axles had been put under the car in October 1866; the axles were made at the Sligo Works of Lyon, Shorb & Co., and they were of good quality ; that the train had been inspected seventy miles east of the place of the accident, and again twenty-two miles east of it; the truck and the road were in good order; the train running at a proper speed. They gave a large amount of evidence to show that minute and constant care had been exercised to keep the road, apparatus, cars, running gear, &c., in perfect order, and that they employed such appliances, &c., as are approved by the most experienced railroad operators and mechanics; and gave evidence generally for the purpose of showing that they used the utmost care that human knowledge, skill and foresight could provide, and that the accident was due to some circumstance against which these could not guard.</p> <p>Under a lucid and exhaustive charge by Judge Thayer, which the Reporter regrets his space will not allow him to give in full, the jury found a verdict for the defendants.</p> <p>The plaintiff took out a writ of error, and assigned for error, that the judge erred in charging the jury:—</p> <p>“ 1. That common carriers of passengers are liable only for negligence; they are not insurers of the safety of their passengers like common carriers of goods. There is a well-established distinction in that respect between the responsibility of the carriers of goods and the responsibility of the carriers of passengers; which distinction is founded in the consideration that in the case of goods committed to a carrier the owner is deprived of all control and custody over them; and also upon the consideration that if the contrary rule prevailed it would enable the carrier of goods to collude with other people for the purpose of depriving the consignor of his rights and his property. But common carriers of passengers are not liable for injuries happening to passengers from unforeseen accidents, where there has been no negligence. They do not undertake absolutely to be responsible for unavoidable accidents; for accidents which, in a word, are not the result of their own negligence.</p> <p>“2. That the rule in regard to carriers of passengers is this: The utmost care and vigilance is required on the part of the carrier. This rule does not require the utmost degree of care which the human mind is capable of imagining; but it does require that the highest degree of practicable care and diligence should be adopted that is consistent with the mode of transportation adopted. Railway passenger carriers are bound to use all reasonable precautions against injury of passengers; and these precautions are to be measured by those in known use in the same business, which have been proved by experience to be efficacious. The company are bound to use the best precautions in known practical use. That is the rule; the best precautions in known practical use to secure the safety of the passengers; but not every possible preventive which the highest scientific skill might suggest.”</p> <p>3. In affirming defendants’ 3d point as follows:—</p> <p>“ If the track of defendants’ road and the car which ran upon it, to which this accident occurred, were built and constructed of the best known materials, and in the best known manner, combining all those appliances which men skilled in the art of road-building and car-constructing employ; and if the car and its running gear were duly and carefully inspected from time to time, and as often and in such manner as those skilled in the art have from scientific knowledge and by experience found requisite, so that the jury are satisfied by the evidence that the accident was due to some cause against which precaution and foresight would be unavailable, then there can be no recovery in this case. ”</p>

115, to July Term 1869. This was an action of assumpsit by Edward J. Crippen and John B. Maddock, trading as William L. Maddock & Co., against Henry Winsor and William D. Winsor, owners of the steamship “ Saxon.” The ship was one of a line between Philadelphia and Boston, which carried passengers as well as freight. The claim was for groceries, such as would be suitable for passengers.

148, to July Term 1869. On the 31st of October 1868 James Eyan issued an attachment execution against The West Branch and Susquehanna Canal Company, in which the Pennsylvania Eailroad Company and the Farmers’ and Mechanics’ National Bank were the garnishees. They filed six interrogatories, of which the 2d and 3d were: 2. Have you had any business transactions with the said defendant?

103, to July Term 1869. This was an action of debt, by Seymour N. Marsh and Joshua Read against B. Frank Palmer and others. The writ issued April 30th 1869, and was served on Palmer only. The cause of action was a judgment recovered against the defendants in the Superior Court of the city of New York, of which an exemplification was filed in this case.

<p>Error to the Court of Common Pleas of Philadelphia: Of July Term 1869: No. 162.</p> <p>This was a proceeding instituted, April 2d 1869, before Aider-man Delaney, by Anning A. Ogden against Thomas Duffy, to recover possession of a messuage, &c., which had been leased by the'plaintiff to the defendant for one year from the 25th of March 1868. The record of the alderman showed that on the 25th of December 1868 Ogden gave notice to Duffy to deliver to him possession of the premises at the end of the term. Other necessary proof having been given, the alderman gave judgment that the defendant deliver up the premises, &c.</p> <p>The proceedings were removed by certiorari into the Court of Common Pleas, where these exceptions were filed:—</p> <p>“ 1. The record does not set forth that three months’ previous notice had been given by complainant to defendant of complainant’s desire to repossess said premises at the end of said term.</p> <p><c 2. Due proof was not made before said alderman that three months’ notice to remove, had been given to defendant previously to the ending of said term.”</p> <p>The court below (Brewster, J.,) affirmed the proceedings of the alderman. Duffy took a writ of error, and assigned this affirmance for error.</p>

203, to July Term 1869. Catharine Strong brought an action of assumpsit in the District Court of Philadelphia, to December Term 1866, against David Giltinan. The first count of the declaration was, in consideration that the plaintiff at the defendant’s request, would let to George R. Maguire a house for one year, at $1200 per annum, the defendant in writing promised that he would pay the rent if Maguire did not; that the plaintiff rented to Maguire, who did not pay.

207. This was an action of assumpsit brought by Edward W. Burbank against - James A. Wright, for goods, &c., furnished by the plaintiff to Taylor and Bacon, agents of the defendant in the cultivation of two plantations in Louisiana, known as “ Orange Grove ” and “ Fazende,” which the defendant held by lease.

212. The proceedings in the court below, which commenced July 21st 1869, were by the Commonwealth, ex relatione Abraham Schleiffer, against John E. Wolf, Jacob Ihrig and Adam Ihrig, Trustees, &c., of Columbus Grove, of the United Ancient Order of Druids. The proceedings were in the first instance originated by a case stated, in which Schleiffer individually was the plaintiff against the same defendants.

<p>1. A mortgage dated in 1839 was “ to pay 55000 lawful silver money with lawful interest.” Judgment for the amount due “ in lawful silver money of the United States” was proper.</p> <p>2. A mere agreement that such mortgage should be paid in legal tenders was without consideration.</p> <p>3. Interest is to be paid in the same kind of money as the principal.</p> <p>4. Unless the contrary is expressed, interest is a mere portion of the principal debt.</p>

<p>Appeal from the decree of the Court of Common Pleas of Philadelphia: In Equity : No. 16, to January Term 1870.</p> <p>The bill in this case was by William B. Wiltbank against The Pennsylvania Company for Insurance on Lives, &c. It set forth that the plaintiff was the only son of Maria Carleton, who died March 2d 1865, owning, amongst other estate, SOO shares of the stock of the New Haven Gas Light Co., of the par value of $25 per share; and of 20 shares of the stock of the New York and New Haven Railroad Co., of the par value of $100 per share; leaving surviving her the plaintiff and an only daughter, Julia V. Wiltbank, and having made her will, whereby she gave in manner following: “All the rest, &c., I give and bequeath to the Pennsylvania Company for Insurance on Lives, &e., upon the following trusts: First, to collect and receive the income, &c., of the whole estate held by the said trustee, and to pay over in quarterly instalments to my daughter, Julia V. Wiltbank, the sum of $1400 per annum for life, &c. Secondly, and upon this further trust after payment of said income to my daughter Julia, and after payment of all taxes expenses of said trust estate, to pay the remainder of the income of said trust estate to my son William B. Wiltbank for the term of his natural life, &c.: that the defendant accepted the trust; that the New York and New Haven Railroad Co., on the 22d of January 1866, authorized an increase of their capital to $5,000,000, and allotted “ to each stockholder 40 per cent, in stock, in addition to the amount standing in his name on the books of this company on January 27th instant, by the payment to the company of $75 on each share so allotted ;” that the defendants as trustees aforesaid, under this authority became entitled to subscribe for 8 shares of this stock for $75 per share, and that they sold the privilege of thus subscribing for $157.50 and charged themselves in their trust account of Mrs. Carleton’s estate with that sum; that the New Haven Gas Light Co., on the 1st of January 1867, increased their capital by an addition of 2000 shares at $25 each and ordered the directors on the payment of $25 for each share of stock “ to distribute said new stock to and among the old stockholders ; so as to give one share of new stock for every five shares of old stock held by such stockholder on the 25th day of March 1867;” that the defendants as trustees aforesaid advanced $1500 and took 60 shares of the stock, the amount to which they were entitled, and afterwards sold the same, realizing a profit of $412.80, with which they charged themselves in their account of Mrs. Carleton’s trust estate; that on the 19th of November 1868 the same company authorized another addition of 4000 shares, at $25 per share to their capital stock, and instructed the directors on the .payment of $25 per share “ to distribute the same to and among the old stockholders, so as to give one share of new stock for every three shares of old stock held by such stockholders on the 26th day of December 1868that the defendants as trustees of Mrs. Carleton’s estate advanced $2500 and took 100 shares of stock, the number to which they were entitled as such trustees, and afterwards sold it at a profit of $574.44 with which they charged themselves in their trust account; that the income of the trust estate, independently of the sums so received as profit on said stocks has been and is more than sufficient to pay Julia Y. Wilt-bank the sum of $1400 per annum.</p> <p>The prayer of the bill was that the plaintiff be declared to be entitled to receive from the defendants the above-mentioned sums derived from the sales of the stocks as income of the said trust estate.</p> <p>The defendants, by their answer, admitted the foregoing alie- ' gations, but declined to pay the sums claimed, because they were advised and believed these sums were capital and not income.</p> <p>The court below (Ludlow, J.) decreed that these sums were capital and not income, and dismissed the bill.</p> <p>The plaintiff appealed to the Supreme Court, and assigned this decree for error.</p>

193, to July Term 1868. This was an action of covenant, brought July 20th 1868, by William Dovey against The Pennsylvania Company for Insurance on Lives, &c., administrators, &c., of William .Hunter, Jr., deceased.

198, to January Term 1870. In Sarah Lukens Keene’s Estate. Sarah L. Keene died May 11th 1866, having made hér will, which was proved June 9th in the same year, and letters testamentary were granted to Ellen Keene Mitchell, wife of Samuel B. W. Mitchell, the executrix named in it.

<p>Appeal from the decree of the Court of Common Pleas of Philadelphia: No. 141J, to January Term 1870.</p> <p>On the 14th of May 1859, George W. Norris and Mary P. his wife (late Fisher), in her right and others, filed a bill against the City of Philadelphia, Samuel Morris and others.</p> <p>The bill set out these facts: The plaintiffs were and for- some time had been seised of a tract of land in Philadelphia, — which the bill described, — bounded on the east by the river Delaware, and partly by land of the defendants. The defendants’ title was under the will of Samuel B. Morris, who directed improvements to his real estate should be made by his executors, including the construction of a bank on the river front. The plaintiffs then averred, “ that the boundaries between their tract and the tracts owned by the city of Philadelphia, and by the other defendants respectively, have become confused and rendered uncertain by reason of lapse of time, which has occasioned the obliteration, destruction or loss of the marks on the ground of the natural or artificial monuments, and of the other evidence of the true course and position of the said boundaries, and also by reason of natural or physical causes, that is to say, the gradual but extensive alterations of and addition to the shore or bank of the said river from large alluvial accretions and deposits, and the growth or increase of flats and marshes in that neighborhood, from which causes or some of them, amongst other things, the line as well of high as of low water in the said river has become in the course of time and since the said boundaries were established, greatly changed both in position and direction:” and “that the defendants, by reason of the said confusion and uncertainty of the boundaries, wrongfully claim title respectively to portions of your orators’ said tract or piece of land; and in particular pretend that each of their several tracts or pieces of land extends in the original direction or course of its hounding lines to the present low-water mark of the said river so as to exclude your orators’ said tract or piece of land from any front upon the said river; and consequently to preclude your orators from the right and privilege of extending wharves, piers and other erections into the said river from their tract, and that such claim or pretence being publicly and often made has created and does create a cloud upon your orators’ title, so that they are unable to deal with and dispose of their said tract or piece of land as they otherwise might,” &c.</p> <p>“ That certain portions of their said tract are covered by water at high tide to such a degree that at present and for some years past no actual possession thereof, by enclosure or other visible or notorious acts of occupation, has or can be taken or maintained for any length of time, either by the plaintiffs or by the defendants or either of them, and that by reason thereof it is impossible to ascertain the boundaries at law so as to establish them in a permanent manner, at least without a multiplicity of actions.”</p> <p>They charge “ that it is impossible to establish the said boundaries at law in another respect, that is to say, so far as the same apply to and extend over the additions and accretions to the shore or bank of the said river before mentioned, inasmuch as the relative position of the said three tracts or pieces of land respectively towards each other and towards the river front is such that the just share and proportion of each in the said additions or accretions must depend on and be measured by the shares or proportions of both the others, and can on]y be ascertained and adjusted at the same time and in the same proceeding, upon principles of equity and • justice which could not be practically enforced in an action at law.”</p> <p>The prayer was: that the boundaries between the plaintiffs’ tract and the several tracts of land belonging to the defendants, may be ascertained, distinguished and adjusted; and that a commission may issue for the purpose of distinguishing, ascertaining and adjusting the said boundaries; and that all proper directions may be given in respect to the same; and for further relief.</p> <p>The city did not appear.</p> <p>The other defendants pleaded: “ That the matter in dispute is solely the ownership of certain marsh lands or flats, which are an alluvion or accretion to the fast land formed by deposit by the river Delaware, between the ancient front or line of the fast land of the defendants and their present line of low-water mark in the said river, which marsh or flat has been claimed by these defendants, and those under whom they claim, from time immemorial, and at all times since the same began to be formed by the river, and that more than twenty-one years before the complainants’ bill was filed, actual possession was taken- thereof, and a fence put up by the defendants’ testator, along the northern boundary line of said marsh, being the northern boundary line of these defendants’ property, on the fast land protracted to the low-water mark of the river; and these defendants claim title to so much of the said marsh lands or flats as lies between the north and south boundary lines of this property, on the fast land protracted to the low-water mark and to no more; which said boundary lines are very nearly parallel to each other, and at right angles, as near as may be, to the line of lów-water mark on the river Delaware; and they claim title thereto solely and entirely as an accretion to the fast land they own and are in undisputed possession of under title-deeds vesting the same in-them and those under whom they claim, and not in the complainants or any one they claim under; and they insist that this court under the circumstances of this case has no jurisdiction, sitting as a court of equity, to determine the ownership of the premises or the proper location of the boundaries, if the fence erected by the devisor of these defendants was erroneously placed on the ground, but that the same can only be determined in a court of common law,” &c.</p> <p>The defendants filed an answer, in support of the plea, alleging facts in reference to their title, &c. Formerly all the tracts owned by the respective parties had river fronts, and the tracts did not then adjoin; but accretions have been made to the shore, so ihat inasmuch as the lines of the respective tracts are not parallel, they would if protracted, converge and consequently conflict.</p> <p>The proceeding was under the Act of April 15th 1858, § 1, Pamph. L. 267, Purd. 402, pl. 12, viz.: “ The Supreme Court in and for the Eastern District of Pennsylvania, and the Court of Common Pleas of Philadelphia, respectively, shall have all and singular the jurisdiction and powers of a court of chancery, in all cases of disputed boundaries between adjoining and neighboring lands within the said county, whether the parties owning the same, hold or claim to hold under the same, or by different titles.” And the Act of April 5th 1859, Pamph. L. 359, Purd. 402, pl. 13, 14, viz.:—</p> <p>Sect. 1. “ The jurisdiction and powers given by the act to which this act is a supplement, shall extend to and embrace the ascertainment and adjustment of disputed boundaries between adjoining and neighboring lands in the county of Philadelphia, where such boundaries are or shall have become confused or rendered uncertain, either by lapse of time, by natural causes, or by the act, neglect or default of any present or former owner or occupant thereof.”</p> <p>Sect. 2. “ If upon bill filed in any such case it shall appear that the whole or any part of the lands mentioned in such bill have or has never been actually parted or divided, the court shall, without dismissing the bill, proceed thereupon to decree partition of such undivided lands between- the parties to the suit according to their just rights and practice of courts of equity in this Commonwealth.”</p> <p>The case was heard December 20th 1869, in the court below on bill and plea. The bill was dismissed pro forma.</p> <p>On appeal to the Supreme Court, the plaintiffs assigned for error the decree dismissing their bill.</p>

<p>Error to the District Court of Philadelphia: No. 203, to January Term 1870.</p> <p>This was an action on the case for malicious abuse of legal process, brought March 28th 1868, by George Mayer against John Walter.</p> <p>Mayer was the tenant of Walter. On the 13th of September 1866 Walter commenced proceedings against Mayer to obtain possession of the leased premises, and on the 24th judgment was rendered in favor of Walter. On the 5th of October Mayer sued out a certiorari. On the 29th of November, Walter was put into possession under a writ of possession. On the 10th of December, the Court of Common Pleas on the certiorari, reversed the proceedings of the alderman; to the judgment of the Court of Common Pleas, a writ of error was taken to the Supreme Court, which was non-prossed March 2d 1867. On the 23d of March, on the petition of Mayer, the Court of Common Pleas granted a rule to show cause why a writ of restitution should not issue; the rule was discharged May 18th. On the 28th of March 1868, the court allowed Mayer to withdraw his petition for a writ of restitution. On the trial the court (Hare P. J.) charged the jury that “before they would be justified in rendering a verdict for the plaintiff they should be satisfied from the evidence that Walter had no right to commence the proceedings for possession before the aider-man, and that there was no reasonable or probable cause for belief that he had such a right, and that such proceedings were malicious)” and reserved for the determination of the court in banc, the question “ whether the plaintiff could maintain this action in the absence of any judgment in his favor upon the merits in the proceedings before the alderman.”</p> <p>The jury rendered a verdict for the plaintiff for $1000. The court afterwards entered judgment for the defendant non obstante veredicto on the reserved point, Judge Hare delivering the following opinion:—</p> <p>“ It is well settled that a recovery cannot be had for the injury inflicted by an unfounded action, unless the party who makes complaint obtained judgment, or there was a plain confession of want of right on the part of the plaintiff in tbe former suit. I do not now speak of suits for the abuse of civil process by obtaining a collateral and unfair advantage, which is not pretended here, but of those where the wrong consists in an arrest, or an eviction, which, though warranted by the writ, was without sufficient cause. But for this rule, the termination of one suit would be, in a multitude of instances, the signal for the institution of another, in which the parties would be reversed; and the process might be renewed indefinitely, in contravention of the maxim interest reipublicce ut sit finis litium. It has therefore wisely been resolved that no liability shall arise from bringing a suit, unless the termination of it shows that it was instituted without sufficient cause. It has indeed been said, in some instances, that if the plaintiff obtains judgment in the tribunal in which the suit is brought, a subsequent judgment for the defendant in a court of error will not set the matter sufficiently at large to leave the way open for an action of damages on his part. If this were conceded, it would be conclusive here, where the magistrate rendered a judgment in favor of the plaintiff. Without going so far, it would seem very clear that the reversal of a judgment in favor of the plaintiff will not let the defendant in to show want of probable cause, unless the reversal is accompanied or followed by a judgment in favor of the defendant. A judgment may be, and often is, reversed on grounds which do not touch the right, but only the manner in which it was enforced) that the declaration contained a defective count, or that the court gave an erroneous instruction to the jury. If the Common Pleas, after sustaining the exceptions to the proceedings before the magistrate, had gone on to award restitution, it would have been conclusive evidence that the right was in the tenant, and the latter would then have been free to show that the landlord had taken measures to evict him, maliciously and without sufficient cause. But that court refused to make such an award: and the rule which had been obtained for the purpose, was, after being reinstated, finally withdrawn by the tenant. Having declined to bring the matter to an issue before the tribunal to which it properly belonged, he cannot now renew the controversy here.”</p> <p>The plaintiff took a writ of error and assigned for error the entering of the judgment on the reserved point.</p>

<p>Error to the District Court of Philadelphia: No. 226, to January Term 1870.</p> <p>This was an action of trover, brought November 80th 1867, by Patrick Campbell against John O’Neill, for one steam-boiler, one steam-engine, one still complete, one doubler, one worm and worm-tub and one large tank.</p> <p>In June 1866, the defendant O’Neill and John W. Cullen were in partnership in the distilling business, they purchased a lot of ground and erected on it buildings in which the articles the subject of this suit were put up for the purpose of carrying on their business. In December of the same year, Cullen purchased the defendant’s interest, real and personal, in the concern for $2000, and agreed to pay the firm debts, at the same time he gave the defendant a mortgage on the real estate bought, for $3000, to secure the purchase-money and also as indemnity for the payment of the firm debts. Cullen in March 1867 rented the real estate to the plaintiff, sold him the fixtures, and gave him possession. Judgments were recovered against the firm for firm debts under which the real estate was sold October 26th 1867, to the defendant, the articles in controversy being in the buildings. The defendant took possession of the premises and refused to deliver these articles. The plaintiff gave evidence as to the mode of attachment of these articles and of their value.</p> <p>The defendant submitted the following points :</p> <p>1. If the jury believe that the building, with tbe appertenances, erected by John W. Cullen and John O’Neill, upon the lot of ground situate at the junction of Tenth street and Passyunk road, was intended to be used by them (either in whole or in part), as a distillery, or for the purpose of carrying on the business of distilling, and the steam-engine, boiler, still, doubler, mash-tubs, fermenting-tubs, and all other the property mentioned in said plaintiffs’ declaration, were placed by them therein for that purpose, then they became and were parts and parcels of the realty, and as such might be mortgaged with the premises, and were subject to the liens of mechanics and material-men for work done or materials furnished for the erection and construction of said premises.</p> <p>2. Upon a sale of the said premises by the sheriff that would discharge the lien of such mortgage, or the liens of mechanics and material-men, a deed by the sheriff to the purchaser thereof would vest a good title to the property in said declaration mentioned in said purchaser, without being specially named in such deed.</p> <p>3. John O’Neill, the defendant, became the purchaser of said premises at such sheriff’s sale, and having received a deed from the sheriff for the said premises, the title to all the property aforesaid passed to him by the said deed, and therefore the plaintiff cannot recover.</p> <p>Hare, P. J., charged: — “ Cullen and the defendant were in partnership, and subsequently the defendant sold out his interest to Cullen, and executed a deed to him, which has been offered in evidence; at the same time Cullen executed a mortgage to defendant : the question arises whether Cullen could, by making a sale of those fixtures, deprive defendant of the security which he held by his mortgage. It was said by, Cullen, that O’Neill knew of this sale, but he did not say that he had notice before taking the mortgage. I doubt whether there is any evidence in this case to estop O’Neill from disputing that sale. Two questions of law arise: whether O’Neill’s title under the mortgage is not better than the plaintiff’s title arising under the purchase from Cullen. Second: whether the title of the purchaser at the sheriff’s sale, under the judgment, is not better than the plaintiff’s title. These points of law I will reserve, and you will find for the plaintiff. and assess the damage, not for what the fixtures were worth in the building, hut for what they would be worth if carried away.”</p> <p>The verdict was for the plaintiff for $800. The court after-wards entered judgment for the defendant on the reserved points non obstante veredicto.</p> <p>The plaintiff removed the record to the Supreme Court by writ of error and assigned the entering of judgment for error.</p>

<p>Appeal from Nisi Prius: No. 6’5, to January Term 1868.</p> <p>George Cadwalader, William Rawle and Benjamin Chew, Jr., were trustees under a decree of the Circuit Court of the United States of certain lands in Lycoming, Luzerne and Bradford counties. The land consisted of vacant and unimproved tracts, some of which were supposed to contain minerals. The trustees had made private sales of some of these lands, and reserved the minerals and mining privileges. They resided in Philadelphia, and transacted the business of the trust through Robert Faries, who resided in Williamsport, Lycoming county. On the 25th of May 1854, by articles of agreement executed for them by Mr. Faries, they contracted to sell to J. W. Heylman “ part of tract No. 1758, containing 181 acres, reserving all minerals and mining privileges, for five dollars per acre, which the said J. W. Heylman hereby agrees to pay as follows, to wit: One-third part thereof cash on the first day of June next, with interest from the date of this agreement, and to give a bond and mortgage and warrant of attorney on the premises for the remaining two-third parts thereof payable, one-half thereof on the first day of June 1856, with the lawful interest from the date hereof, and the other half thereof on the first day of June 1856, with lawful interest.”</p> <p>Heylman, June 6th 1854, paid $300 on account of the first payment, a receipt for which by Mr. Faries, was endorsed on the articles.</p> <p>On the 18th of March 1856 a petition on behalf of parties interested in the trust was presented to the Court of Common Pleas of Philadelphia, praying that the trustees should be required to sell the remaining subjects of the trust. A decree was accordingly made, and Benjamin Chew, one of the trustees, he being also beneficially interested in the trust, was allowed to bid at the sale. The property was advertised and exposed to public sale on the 24th of June then-next, in two classes. The first class included or was designed to include all the lands intended to pass without the reservation of minerals: the second, those tracts “ out of which mining and mineral privileges have been reserved,” and also the mineral privileges which had been reserved out of lands previously sold. In the first class was included the 181 acre tract, sold to Heylman. This tract was sold to W. L. Marshall, Esq., attorney for Benjamin Chew, for $248.87. The order of sale was so returned, and on the 12th of July 1856 the sale was confirmed. On the 12th of November the trustees made a deed to Mr. Marshall, and he conveyed to Chew, April 1st 1857. The deeds to Marshall and Chew were both recorded in Lycoming county, October 2fith 1859. On the 3d of October 1863, Heylman paid to Judge Armstrong, of Williamsport, attorney for the trustees, $346.05, on account of the purchase-money, the receipt for which was endorsed on the agreement and signed by Judge Armstrong as attorney for the trustees: In November 1865 Heylman called on Faries, who continued to act as agent of the trustees, and paid him $642.49, the balance of the purchase-money of the 181 acres with interest and demanded a deed. Faries had a deed prepared, ■which contained no reservation of the minerals, &c., and sent it to Philadelphia where it was executed by the trustees, returned to Faries and by him delivered to Heylman. Heylman then endorsed the following receipt on the agreement:</p> <p>“Received, Dec. 6th 1865, of Rawle, Oadwalader and Townsend, trustees, &c., the deed made in pursuance of the within agreement. J. W. Heylman.”</p> <p>On the 9th of March 1868, the trustees filed a bill in the Supreme Court of the Eastern District against Heylman and the parties interested under the will of Chew.</p> <p>The bill set out substantially the foregoing facts.</p> <p>It further averred that in the sale under the decree of the Court of Common Pleas, the 181 acre tract was accidentally included and by mistake exposed to sale, and that after the sale to Marshall, the clerk of the trustees informed Chew of the previous sale to Heylman, but was told by Chew that Heylman had abandoned his contract, and that he would take the responsibility; that subsequently Rawle and Chew two of his trustees died, and W. H. Rawle and J. B. Townsend were substituted; that when Heylman demanded the deed, Faries was ignorant of the deed to Marshall ; that Cadwalader was absent, and the other trustees who executed the deed to Heylman were ignorant that before their coming into the trust the 181 acre tract had been conveyed to Marshall.</p> <p>The bill then alleged that, by reason of the mistake in the conveyance to Heylman and the mistaken or accidental sale to Chew, the complainants may have rendered themselves liable on some of the covenants in the said deeds contained, to which liability they ought not, in equity, to be subject; and it further alleged, that Chew purchased the said tract with the fullest notice of the agreement with Heylman, and the only right which he acquired was the right to the mineral privileges in said tract, or the right to have his purchase-money returned to him; and that the complainants have so offered to return the said purchase-money.</p> <p>The prayers were: 1. That the conveyance to Heylman be reformed, so that the same may conform to the original intention of the parties, as expressed in the articles of agreement.</p> <p>2. That the trustees and devisees under the will of Benjamin Chew, may be decreed to release and confirm unto Heylman the title to the said tract, reserving the minerals and mining privileges as aforesaid. »</p> <p>8. That the deed to Marshall and from Marshall to Chew be reformed, so as to embrace only the mines and mining privileges remaining in the trustees after the execution of the articles of agreement with Heylman.</p> <p>4. That the defendant Heylman release and confirm to the representatives of Chew the mines and mineral privileges in said tract, the complainants hereby offering to the said representatives of the estate of Benjamin Chew, deceased, the option to retain the said mining privileges in the said tract, or to receive from the complainants the amount paid by the said Benjamin Chew for the purchase thereof.</p> <p>6. General relief.</p> <p>The answers of the representatives of Chew disclaimed knowledge of any mistake in the sale last mentioned, and of the alleged conversation between Benjamin Chew, and the clerk of the trustees; denied that in November 1865, Robert Earies was ignorant of the conveyance from the trustees to Marshall; disclaimed knowledge of the last payment, made by Heylman to Earies; admitted that Chew had knowledge of the outstanding agreement with Heylman, but averred that Chew considered the said agreement cancelled, either in law or in fact.</p> <p>They further averred that the agreement with Heylman is so tainted with gross negligence and laches on his part, that it could not have been enforced at the time the trustees made the deed to him in 1865; and also, that the right of Colonel Chew was not merely to have his purchase-money returned, but that he acquired all the right and title of the trustees in the said tract; and admitted the offer to return the purchase-money.</p> <p>The answer of Heylman, averred willingness to give a bond and mortgage, as required by the said articles; that he went into possession of the 181 acres, under and in pursuance of the said articles, and made valuable improvements thereon; and that years before the conveyance of 1865 was delivered to him, he had demanded his deed, and offered to pay the balance of the purchase-money; that he the said Heylman accepted precisely such a deed as the trustees offered him. On December 6th 1865, he sold and conveyed the tract to E. M. D. Levan; and subsequent conveyances were made by Levan to other parties.</p> <p>He denied that there was any mistake in the conveyance from the trustees to himself.</p> <p>A replication was filed and an examiner appointed. George Bull, Esq., was appointed master.</p> <p>The master amongst other things reported : — •</p> <p>* * * “ When the trustees entered into the article of agreement with Heylman, they parted with the equitable estate, and Heylman could obtain from them the legal estate only by complying with his contract. He did not comply, and after the time had expired within which he had the right to tender a bond and mortgage, the trustees sold and conveyed the legal title to Benjamin Chew. This sale passed to Mr. Chew the legal title to this tract of land, minerals and all, subject to the equities of Heylman.</p> <p>“ Whenever Heylman or his assignees shall come forward and pay to the trustee or devisees of Benjamin Chew the balance of the purchase-money remaining unpaid at the date of the conveyance of the legal title to Chew, he will be entitled to a conveyance of the legal title called for by his article of agreement, if his equity has not been lost by his own laches, but not before.</p> <p>“ In the mean time, as defendant Heylman has not paid the balance of his purchase-money to the holders of the legal title, according to the terms of his contract, the latter are entitled to bring an action of ejectment for the land, and the payment made by Heylman to the trustees would be no defence to such a suit. At the time defendant Heylman made his payments to the trustees there were two deeds on record in the county of Lycoming, which were a standing notice to him and to all the world, that the trustees had parted with the legal title, and had no right to receive any portion of the unpaid purchase-money. At the time of the sale to Benjamin Chew, the trustees held the legal title as security for this purchase-money, and they had a perfect right to sell it, and having done so, their right to receive the money passed to their vendee, who took the title to the land subject to Heylman’s equity.” * * *</p> <p>“What standing have the plaintiffs in a court of equity, to ask for a reformation of these two deeds ? They sold nothing to Marshall but what they had a right to sell, and they conveyed nothing else, i It is argued by the plaintiffs, and some evidence is produced to show that Chew had actual notice of the Heylman contract. But this does not vary the case. It is quite likely that Chew did know of it; being a party to it, be was visited with notice. He may have purchased with that contract in view, knowing that he would be entitled either to the unpaid purchase-money or the land. If he failed to obtain the purchase-money, he would pursue the land, and his right to do so cannot be questioned.</p> <p>“ No relief can be decreed under this prayer of the bill, because there is nothing whatever in Chew’s deed that requires reformation. It is alleged, it is true, by the plaintiffs, that this 181 acre tract was included in the sale by mistake. The evidence to support this averment is not sufficient. But suppose it was proved, who was damaged by it ? Not the trustees, because they received Chew’s purchase-money, and executed a deed to him after they had full notice. It was the clerk of the trustees, who called Mr. Chew’s attention to the Heylman contract, as appears by his testimony. Consequently they delivered the deed to Chew and received his purchase-money with open eyes, and it does not lie in their mouths to ask the interposition of a court of equity to relieve them from the consequences; particularly as the act was one from which no evil consequences were likely to flow. The representatives of Chew have suffered no damage, because their rights are unimpaired, and the conveyance having been accepted by Chew, and the purchase-money paid by him with full notice of Heylman’s equity in the land, he, or his representatives, would be in no position to ask for a rescission of their contract, if they were not cut out by lapse of time. Heylman suffered no damage, because his position remained the same. He could have tendered the balance of his purchase-money to Chew, and demanded a deed, which Chew would have been bound to execute. He was placed in no worse position by the transfer to the legal title.</p> <p>“ As this case now stands, there is nothing in it requiring relief in equity. In effect, the plaintiffs are asking the court to do for them what they can easily accomplish themselves without the aid of any judicial act whatever. The plain road out of the difficulty is, for the trustees to tender to Heylman the purchase-money they have improperly received from him, and leave him and his co-defendants to their mutual remedies at law, which are complete and adequate. The only complication in the whole transaction arises from the mistake made by Heylman in paying his money to the wrong party.” * * *</p> <p>The master reported that the bill be dismissed with costs.</p> <p>After exceptions, the report was confirmed pro forma at Nisi Prius, and the bill" dismissed with costs.</p> <p>The plaintiffs appealed, assigning for error the decree of dismissal, and that the court did not make a decree according to the 2d and 3d prayers of their bill.</p>

<p>Error to the Court of Common Pleas of Philadelphia: No. 234, to January Term 1870.</p> <p>This was a proceeding commenced the 25th of June 1869 by John Fleming against S. Tilford, before Alderman George Moore, to recover possession of premises in Sansom street, occupied by the defendant.</p> <p>The record of the alderman set out that Fleming had complained on oath that the Franklin Fire Insurance Company was the owner of certain premises situate on the north-east corner of Cope and Sansom street, in the city of Philadelphia, and was in quiet, peaceable possession thereof on the 24th day of June 1868, on which last-mentioned day they demised said premises to a certain Mrs. S. Tilford for one year, and so on from year to year, at the rent of $62, and that Mrs. Tilford, by virtue of said demise, entered into possession and held the same during the said term, and is still possessed of the same; that the term is fully ended; that the Franklin Fire Insurance Company, on the 18th day of July 1868, conveyed the premises to Fleming in fee, and Mrs. Tilford attorned to him; that Fleming being desirous to repossess the said premises, on the 3d day of December 1868, required Mrs. Tilford to leave the same at the end of her current term, ■which notice was given three months previously to the expiration of her term, and Mrs. Tilford had refused, &c.</p> <p>“ And now, July 1st 1869, the parties appeared. After hearing the plaintiff, his proofs and allegations, the said alderman finds the above complaint is in all particulars just and true, and enters judgment against said lessee, that she shall forthwith deliver possession of said premises to the said John Fleming, the plaintiff, and gives judgment for the sum of $14.48 damages, &c.”</p> <p>The defendant removed the proceedings to the Court of Common Pleas by certiorari.</p> <p>Her exceptions there were:—</p> <p>1. The complaint and alderman’s record do not agree. The complaint sets forth that the defendant was the tenant of the Franklin Fire Insurance Company. The alderman’s record finds judgment of ouster in favor of John Fleming.</p> <p>2. The suit should have been brought in the name of John Fleming, assignee.</p> <p>3. The defendant had not the required notice to quit, it being to surrender possession of the said premises under grantor’s letting of June the 24th 1868 to John Fleming as landlord; whereas the said John Fleming’s .right of letting did not accrue till July the 18th 1868, at which time defendant became his tenant, and in which form suit has been brought, and judgment for possession entered July the 1st 1869, seventeen days before the termination of the year.</p> <p>The Court of Common Pleas (Allison, P. J.,) dismissed the exceptions, and affirmed the judgment of the alderman.</p> <p>The defendant took a writ of error. She assigned for error, the affirmance of the judgment.</p>

<p>Certiorari to the Court of Quarter Sessions of Philadelphia: No. 238, to January Term 1870.</p> <p>On the 2d of December 1869 Alderman Allison, of Philadelphia, issued a warrant against Elihu Demott, upon the oath of his wife, Emma Demott, charging him with deserting her and his child “ on the 30th of July at the city aforesaid.” The defendant was arrested, and on the 3d of December, as the record of the alderman showed the defendant, “Elihu Demott, residing at Hickorytown, Montgomery county,” and John C. Hunter, were bound for the defendant’s appearance at the next Court of Quarter Sessions of Philadelphia. On the 18th of December the defendant was surrendered to the sheriff on a bail-piece. On the same day he petitioned Judge Pierce, one of the judges of the Court of Common Pleas, for a habeas corpus. The case was heard on the habeas corpus on the 24th of December, before Judge Pierce, when the relator was discharged. On the same day a hearing was had on the charge of desertion, and the defendant was ordered to pay $6 per week for the support of his child, and give security, &c.</p> <p>Depositions were afterwards taken to show that the residence of the defendant was in Montgomery county.</p> <p>The defendant removed the case by certiorari to the Supreme Court. He there assigned for error:—</p> <p>1. The Court of Quarter Sessions of Philadelphia had no jurisdiction of the case.</p> <p>■ 2. The Court of Quarter Sessions of Philadelphia were not competent to make an order for the support of a minor child of a person residing in Montgomery county.</p> <p>3. The discharge of the defendant on habeas corpus is a dismissal of the whole complaint, and the order of support is irregular, nugatory and void.</p>

<p>Appeal from the decree of the Orphans’ Court of Philadelphia: No. 255, to January Term 1870.</p> <p>Joseph Parker died in July 1853, having made a will of which he appointed Edward T. Parker, Joseph Parker and John M. Ogden the executors. The estate was managed chiefly by Edward T. Parker, who in all the proceedings has been treated as acting executor. The account of the executors was filed and referred to William D. Baker, Esq., as auditor. No commissions were credited in the account, but the accountant claimed commissions before the auditor.</p> <p>The auditor reported: * * “By the terms of the will the executors are authorized to sell this real estate, but a discretion is allowed them as to when it shall be sold. An annuity of $600 is left to the widow, and $300 to Deborah Anna Parker, and is charged upon the real estate on Third street above Chestnut., The balance of the estate is given in the shape of money legacies, principally to testator’s children. He left some debts, including a mortgage, which have all been paid by the executors. A small portion of the real estate has been sold, but the most valuable portion, consisting of a property on the east side of Third street above Chestnut, still remains unsold. This property has been retained, in the opinion of your auditor, greatly to the advantage of the estate. A considerable portion of the moneys embraced in this account is made up of the rents of this property. Nearly all the work of the estate has been performed by Edward T. Parker, one of the accountants. He has had the entire labor of managing the real estate referred to, and of collecting the rent. The work has been performed with ability, care and fidelity. * * He distributed the net rents annually among the heirs. He claims now to be allowed a commission of 5 per cent, for the rents so collected and disbursed, over and above any charge which the executors, as such, may be entitled to make.</p> <p>“ The auditor is of the opinion that the claim is a just one, and accordingly allows it.</p> <p>“ The account, as corrected, shows an amount on hand and disbursed by the accountant of $65,661.48. While this amount is considerable, it must be borne in mind that it covers a period of about fourteen years, and involved a great deal of labor, care and responsibility. The auditor has allowed the executors a commission of 5 per cent, upon the said sum of .$65,661.48, amounting to $3283.05 ; and also to Edward T. Parker the further sum of $1941.60, being 5 per cent, upon the amount of rents collected and disbursed by him.</p> <p>“ A claim was made to surcharge the accountant with the sum of $603.52, being amount of interest alleged to have been received from the use of the funds of the estate, and not carried into the account.” * * *</p> <p>Part of the sum of $65,661.48 was proceeds of real estate.</p> <p>The auditor found that from 1853 to 1862 Edward T. Parker deposited the funds of the estate in his private bank account. During that time he was in no business to use or risk the money, a bank credit was of no value to him. Sometimes the credit in his bank account did not equal the trust funds in his hands; at other times the estate was indebted to him for advances. During the first four years the money was appropriated as fast as received, to pay debts. After 1857 the estate vras distributed annually amongst the heirs. The auditor reported that one witness stated that Mr. Parker loaned the money of the estate at 1| per cent, per month for his own benefit, but he found that the proof was so vague and unsatisfactory as to be unreliable.</p> <p>As to surcharge of interest the auditor reported: * * * “The parties asking to surcharge may possibly have been misled by the fact that the account, as filed, shows a larger balance, by several hundred dollars, than existed in point of fact. This arose from the circumstance that in the year 1855 the executors drew a small part of their commissions, which payment does not appear in their account. All the balance of their commissions has been left in the estate untouched, although fourteen years’ services have been rendered. Had they been drawn as earned, the interest upon the commissions would have amounted to much more than the sum which is now demanded as a surcharge; and the small balances which from time to time appear in the account, in any view which can be taken of it, consist, in point of fact, of the earned but undrawn commissions of the accountants.” * * *</p> <p>The auditor then reported:—</p> <p>“ The balance in the hands of the accountant, as per account filed, is $2808.08. From which is to be deducted the error referred to of $153.69, leaving the actual balance of $2654.39.</p> <p>“ The auditor has allowed to</p> <p>Edward Paxson, Esq. ... $300.00</p> <p>To accountants for commissions 3283.05</p> <p>To Edward T. Parker for collecting rents 1941.60</p> <p>The expenses of the audit 223.62</p> <p>Balance due accountant .... $3093.88”</p> <p>On exceptions to the report, the Orphans’ Court ordered the commissions on the rents to be stricken out, the commissions on the real estate to be reduced, and some other corrections to be made, and recommitted the report to the auditor. He made another report in accordance with the directions of the court, and found a balance of $1396.39 due the accountant.</p> <p>This report, after exceptions, was confirmed. William Parker and others interested under the will of Joseph Parker, appealed to the Supreme Court, and assigned for error—</p> <p>1. Dismissing the appellants’ exceptions and confirming the report of the auditor.</p> <p>2. Allowing the accountant any commissions.</p> <p>3. Not surcharging the accountant with interest.</p>

<p>1. A bill of interpleader lies only when the party applying claims no interest in the subject-matter.</p> <p>2. The Act of June 16th 1836, sect. 13 (Equity Powers), construed.</p> <p>3. If a party is entitled to equitable relief against an owner of property of which the legal title is in dispute, so that he cannot ascertain to whom it belongs, he may file a bill against, the several .claimants in the nature of a bill of interpleader.</p> <p>4. Such bill is not that contemplated by the Act of 1836.</p> <p>5. Wistar conveyed land to Dohnert reserving a ground-rent with right to redeem, Dohnert to erect buildings in one year, and died, devising the rents. Her will was contested. Dohnert for 16 years neglected to build. On a bill by him against the devisees and heirs at law to extinguish the ground-rents: Held, that this was not a bill for the determination of the rights of property claimed by two or more persons, and that the rights between the contestants of the will were to be determined by the Register’s Court.</p> <p>6. Specific performance is within the sound discretion of the chancellor.</p> <p>7. There must be no default in the plaintiff which would render it inequitable to grant him the relief.</p> <p>8. Under the circumstances in this case, the delay of Dohnert to erect buildings for so long a time, prevented interposition of a chancellor for his relief.</p>

<p>1. Gubbings conveyed to Harper by absolute deed, and about the same time they agreed in writing that at Gubbings’ request within three years,</p> <p>Harper would reconvey, Gubbings paying him an advance of $500. Held, that the transaction was a mortgage.</p> <p>2. Gubbings did not demand a reconveyance for nine years: Held, that he was not barred by the 6th sect, of Act of April 22d 1856 (Limitation).</p> <p>3. The 6th sect, of Act of 1856 construed.</p> <p>4. Whenever there is an advance of money to be returned within a specified time upon the security of an absolute conveyance, it is a mortgage, whatever the form adopted or the understanding of the parties.</p> <p>5. Harper on the execution of the deed took possession and after the expiration of the three years made permanent improvements, which the master found to be reasonable: Held, that he should be allowed for those improvements.</p> <p>6. Keason and justice are controlling guides in equity where no positive rule of law intervenes.</p> <p>7. When property is held avowedly as a pledge, a mortgagee in possession should not be allowed for costly and permanent improvements, without the consent of the mortgagor.</p> <p>8. Mortgagee in possession should be allowed for such repairs as are proper to preserve the estate from dilapidation, without holding him to proof of absolute necessity.</p> <p>9. Principles on which a mortgagee in possession should account, stated in this casé.</p> <p>10. Givens v. McCalmont, 4 Watts 460 ; Gregg v. Patterson, 9 W. & S. 197; Dilworth v. Sinderling, 1 Binney 488 ; Beeson v. Beeson, 9 Barr 279, remarked on.</p>

<p>1. A testator gave the remainder of his estate real and personal to certain persons named, and gave his “ executors full power to sell * * the whole or any part of my estate real or personal without application to * * any court, either for the purpose of effecting partition among the said devisees, or for the purpose of making a partition or division of any lands that I may own in common with others.” This was a conversion of his real estate.</p> <p>2. This broke the descent and vested the estate in the executors, leaving to the legatees but an interest in the proceeds.</p> <p>3. The executors would be accountable for the real estate.</p> <p>4. The Orphans’ Court has power to control testamentary trustees in the exercise of powers over real and personal estate.</p> <p>5. Executors sold real estate under the directions of a will and charged themselves in their account with the proceeds; on exceptions to their account the Orphans’ Court had not power to order a resale.</p> <p>6. The court might strike out the item or surcharge the executors with the price it should have brought.</p> <p>7. If the court judged the sale ought not to stand they could strike out the item and order the charge to lie over, in order to prevent the parties from being estopped from contesting the sale.</p> <p>8. The deed passed the estate to the purchaser and constituted a contract which could be reached only by a proceeding to which the purchaser was a party.</p> <p>9. The Orphans’ Court within limits of its jurisdiction is strictly a court of equity.</p> <p>10. The Orphans’ Court grasp a controversy in relation to a sale of real estate under a will, and may set aside the sale, order the purchase-money to be restored and direct a resale by the executors.</p> <p>11. Executors sold real estate of the testator to the wife of one of them. The sale was not void because she was a married woman.</p> <p>12. If the sale were avoided, it would be because she was the wife of one of the executors.</p> <p>13. A married worhan can take a deed with the assent of her husband.</p> <p>14. A sale by a trustee to his wife would be set aside not on the ground of coverture, but of her relationship to the trustee.</p> <p>15. The Orphans’ Court has power to authorize a wife to bid at a sale by her husband as trustee of real estate in which she is interested.</p> <p>16. The Orphans’ Court could order the sale to be made by the trustee, under the supervision of its own officer.</p> <p>17. The power to authorize a trustee to bid at his own sale is a delicate one, should be cautiously exercised and watched with jealousy.</p> <p>18. To charge an executor with more than he receives, supine negligence or wilful default must be proved.</p> <p>19. It seems that the Orphans’ Court has power to review, set aside or order a resale of real estate under a testamentary power.</p> <p>20. The 12th and 13th sects, of Act of February 24th 1834 (Executors, &e.), 4th and 57th sects, of Act of March 29th 1832 (Orphans’ Court), and 19th sect, of Act of June 16th 1836 (Courts), construed.</p> <p>21. McNair’s Appeal, 4 Rawle 148, Morris’s Appeal, 10 Barr 435, recognised.</p>

<p>Error to the District Court of PhilacUlphia: No. 264, to January Term 1870.</p> <p>This was a foreign attachment in assumpsit by Fanny Grant against George Hickcox. The writ was issued April 2d 1869, and the attachment served on John West and others, garnishees. On the 24th of May, a copy of the note on which the action was founded was filed. On the 2d of June an appearance was entered for the garnishees, and an the 30th of October an appearance was entered for the defendant. On the 9th of December, a rule to declare was entered. On the 11th of the same month judgment was taken against the defendant for want of an affidavit of defence, and damages assessed at $3776.40. A rule to show cause why the judgment should not be stricken off was made absolute January 1st 1870.</p> <p>The plaintiff, on removal of the case to the Supreme Court, assigned for error the striking off of the judgment.</p>

266, to January Term 1870. Isaac Brown Parker leased the American Theatre to Robert Fox for four years, commencing March 31st 1865, for a yearly rent of $3000 — in addition to which Fox was to pay “ all taxes, charges, license fees, assessments, water-rents, gas charges and other impositions of every kind which should be charged on the premises.” Parker died 19th September, 1865, having made his will, whereby he appointed Frederick Watts and John Brown Parker his executors,…

Sur motion to quash writ of quo warranto: No. 109, to January Term 1870.

This was an action of assumpsit, brought January 4th 1868, by Joseph B. McMakin, who survived Benjamin McMakin, they having been partners under the firm of J. & B. McMakin, against William J. A. Birkey. The suit was on the following note:— “$300 Philadelphia, July 24th 1863. Ninety days after date, I promise to pay to the order of Dr. Samuel Tucker, three hundred dollars, without defalcation, value received. Wm. J. A. Birkey.

259, to January Term 1870: In the matter of the account of Charles Willing, trustee of Alexander B. Bingham, under the will of William Bingham, deceased. William Bingham was domiciled in Philadelphia; his will was proved there June 16th 1856.

10 and 11, to July Term 1869. The cases, the subject of these writs of error, were two feigned issues under the Sheriffs’ Interpleader Act, in both of which Chambers McKibbin was claimant and plaintiff; Thomas J. Martin was tbe defendant in one issue and Charles D. Kline in the other.

<p>Error to the District Court of Philadelphia: No. 50, to July Term 1869.</p> <p>This was an action of assumpsit, commenced January 6th 1869, by Lewis Seal against John E. Wynkoop, to recover the price paid by the plaintiff, who was a broker, for stock bought for the defendant at his request. The declaration averred that the order to the plaintiff was for the purchase of stock in “ The McClintock Oil Company.”</p> <p>The case was tried May 4th 1869. D. J. Woods testified for the plaintiff, that about February 1865, at the request of the defendant, he introduced him to the plaintiff, and the defendant instructed the plaintiff to purchase for him 200 shares of McClintock oil stock; he paid the plaintiff $200. The witness was then asked, “Do you know from conversation with Mr. Wynkoop whether he knew that this stock was purchased by the plaintiff as instructed by him?” The defendant objected, on the ground that the witness was asked for his “ impression,” &c. The objection was overruled, and a bill of exceptions sealed. The witness answered : • “ I cannot say that he said anything of that kind in so many words. He did intimate to me that the stock had been bought. I knew he was informed of the purchase. I have no doubt that he did intimate to me that the stock was bought for him. I conversed with the defendant after the purchase of the stock, probably the same day, about the purchase of the stock. I think I received telegrams from defendant to plaintiff in relation to this transaction.”</p> <p>The telegrams, as follows, were then given in evidence:—</p> <p>“ Pottsville, March 30th 1865.</p> <p>To Lewis Seal, Esq., Stock Broker :</p> <p>I was down yesterday but left unexpectedly, will be down again and see you on Saturday.</p> <p>John E. Wynkoop.”</p> <p>“ Pottsville, March 30th 1865.</p> <p>To Lewis Seal, Esq., Broker:</p> <p>Yours has just been received. Extend my McClintock 30 days. I will see you on Saturday.</p> <p>John E. Wynkoop.”</p> <p>The plaintiff testified: On the 28th of February 1865, the defendant ordered him to buy 200 shares of McClintock oil stock, and paid $200 at the time; he bought 200 shares, which with expenses, &c., cost $1275.25; he had received dividends to the amount of $95. The defendant was informed of the purchase when made, and had been frequently requested to take the stock and pay for it; there never was a time when the plaintiff could not have delivered the stock; it was always under his control; it was bought for the defendant on 30 days’ credit to the buyer ; it .did not pass at the time of the purchase from the seller.</p> <p>The plaintiff produced a certificate, in his own name, dated May 3d 1869, for 200 shares of stock in “ The McClintockville Petroleum Company.” He further testified that he had his stock in larger certificates and got the certificate of 200 shares, on the 3d of May, out of a certificate of 500 shares; he had bought stock in the same company, before and after he bought for defendant ; there might have been times when there was no stock in his name; he may have borrowed money on it; this stock was delivered to him April 10th 1865; he never gave defendant notice that the stock was ready.</p> <p>The defendant gave no evidence.</p> <p>He requested the court to charge:—</p> <p>1. That if the jury believe, from the evidence, that there was no notice given to Mr. Wynkoop of the plaintiff having the stock ready to deliver, the plaintiff cannot recover.</p> <p>2. That there have been no damages proved, and therefore the verdict must be for defendant.</p> <p>3. That if the jury believes, from the evidence, that the plaintiff did not have 200 shares of the stock of the same company always in his possession ready to deliver to the defendant, but on the contrary, had, during that time, pledged or in any way disposed of all he had of said stock, the verdict must be for defendant.</p> <p>4. That the stock alleged to have been ordered by defendant being “ McOlintock Oil Stock,” and the stock proved to have been ordered being “ McClintockville Petroleum Company” stock, there can be no verdict for plaintiff.</p> <p>The court refused each of the points.</p> <p>The verdict was for the plaintiff for $980.25.</p> <p>The defendant took a writ of error. He assigned for error the admission of the evidence objected to, and the refusal of his points.</p>

<p>Appeal from the decree of the Court of Common Pleas of Chester county: In Equity: No. 268, to January Term 1870.</p> <p>On the 7th of September 1869, David Woelpper filed a bill against The Philadelphia, Wilmington and Baltimore Railroad Company, De Witt Clinton Lewis, sheriff of Chester county, The Philadelphia and Baltimore Central Railroad Company, and Ezra Bowen and George S. Eox, trustees in a mortgage executed by the last-named company.</p> <p>The bill set out:—</p> <p>1. The incorporation of the Philadelphia and Baltimore Central Railroad Company by Pennsylvania and its union by authority of Pennsylvania with a corporation of Maryland and that the two corporations became one, under the name of The Philadelphia and Baltimore Central Railroad Company.</p> <p>2. By an Act of February 12th 1856, Sect. 1, For the purpose of constructing and equipping The Philadelphia and Baltimore Central Railroad, the said company was authorized to borrow $1,500,000, and to issue their bonds therefor, and to secure the payment of the said bonds and their interest, by executing and delivering to trustees a mortgage or mortgages of all or any part of their road, property, rights, liberties and franchises in the state of Pennsylvania. Sect. 2. The assent of this Commonwealth was given to any law enacted or to be enacted by the legislature of Maryland, authorizing the borrowing of money by the said Philadelphia and Baltimore Central Railroad Company to any amount not exceeding $1,500,000, for the construction and equipping of the said company’s road, and the issuing of bonds therefor, and the mortgaging of all or any part of the same, situate and being in the state of Maryland, to secure the payment of said bonds with their interest.</p> <p>3. The Philadelphia and Baltimore Central Railroad Company, in pursuance of the authority of the above-mentioned act, executed a mortgage to Bowen and Fox, of “all the road, property, rights, liberties, privileges, corporate franchises, incomes, tolls and receipts, now held or hereafter to be acquired in Pennsylvania,” in trust to secure the bonds issued in pursuance of the same act. The mortgage also provided a mode by which the whole mortgaged property might be sold together by the trustees, at the request of bondholders to the amount of $100,000, and purchased for all the bondholders, &c.</p> <p>4. The plaintiff was the holder of bonds amounting to $7200, secured by the mortgage.</p> <p>5 and 6. The Philadelphia, Wilmington and Baltimore Railroad Company, defendants, on the 16th of July 1869, recovered judgment for $122,942.11, against the Philadelphia and Baltimore Central Railroad, in a suit on bonds secured by said mortgage ; an execution was issued on the judgment under which Lewis, defendant, as sheriff levied on four locomotive engines, a number of cars, shop and quarry tools, cross-ties, iron rails, furniture at stations, &c. The sheriff’s inventory was made part of the bill as Schedule “B.”</p> <p>7. Averred that the mode provided for selling the whole mortgaged property was a contract between the holders of the bonds. The sale of part of the property by any of the bondholders under an execution was in violation of the contract, and contrary to equity.</p> <p>The prayers were:—</p> <p>3. That it may be declared that the property levied upon as aforesaid, is a part of the mortgaged premises, and is exempt from levy and sale under the execution on the judgment hereinbefore metitioned, or under any other execution that may hereafter be issued thereon.</p> <p>4. That the defendants, the Philadelphia, ‘.Wilmington and Baltimore Railroad Company and Lewis, may be restrained from selling the property levied on under the execution issued on the judgment against the Philadelphia and Baltimore Central Railroad Company, and from further proceeding on the said execution against the said property or any other property, real or personal, corporate rights and franchises, granted and conveyed by the said mortgage, and that the said Lewis be ordered to withdraw his levy from the property now levied on.</p> <p>5. Further relief.</p> <p>The Philadelphia, Wilmington and Baltimore Railroad Company, by their answer denied that the property levied on was covered by the mortgage, and averred that it was acquired after the delivery of the mortgage.</p> <p>Lewis, the sheriff, submitted himself to the court. There was no appearance for the other defendants.</p> <p>A replication having been filed, the case was referred to P. Erazer Smith, as examiner and master. He took testimony, and as master reported:—</p> <p>* * * “I find that the engines, ‘ Kennett’ and ‘ Brandy-wine,’ and two dirt-carts belonged to the company at the execution of the mortgage.</p> <p>“I find that the ‘ material,’ consisting of cross-ties and iron, are part of the real estate or road-bed, although obtained since the execution of the mortgage. Those articles, therefore, in any aspect, are covered by the mortgage.</p> <p>“ I find that the remaining articles contained in the inventory were obtained by the company since the execution of the mortgage, and that at the time of its execution the road was in a condition to be operated a distance not exceeding five miles, and that at the time of the levy it had been completed and equipped, and was in operation in Pennsylvania for a distance of at least thirty-seven miles.</p> <p>“ The pleading as well as the testimony, determines that all the property levied on was in actual use upon the railroad, and was required for the transaction of its business, and that the trains could not be run without it.</p> <p>“ It would seem conclusively to follow, then, that although many of the specific articles may have been acquired since the execution of the mortgage, they are of the kind of articles which the company had at that time, and are essential to the full exercise of the franchises, &c., granted to the company, which were for the benefit of the public as well as for that of the corporators.</p> <p>“ The money was borrowed for the purpose of constructing and equipping the road, and, in the absence of proof to the contrary, is presumed to have been so used. It cannot be, that when the bondholders loaned their money they supposed that there was no security for $800,000 but five miles of the road, to an unimportant point, and two locomotives, two dirt-carts and perhaps a passenger car. Both parties must have contracted with the intention that the security should be upon that which the money was expressly to be used to accomplish.</p> <p>“ It was, therefore, an agreement that it should be so held, which, if not enforceable at law, on the maxim qui non habet, ille non dat, yet is binding in equity as relating to things in possession of the mortgagor to which the other things can attach in future as part of the thing possessed, and are not in substitution of it: something in prcesenti with which the thing in futuro is to be connected as necessary for its use or as incident to it: Morrill v. Noyes, Supreme Court of Maine, 3 Amer. Law Reg. N. S. 18; Wilson v. Seibert, Louisville Chan., 8 Id. 608; Pierce v. Emery, 39 N. Hamp. 484. If it be conceded that the property levied on is personal chattels, yet the law contemplates that such property is always necessary to the company for the exercise of the perpetual franchises granted, and the performance of the obligations to the public, imposed for the same indefinite period; there is, therefore, given to the property a permanence which is one of the characteristics of real estate, having also the incident that such additions as may be made to it shall partake of the same character and become practically part of the same thing which was originally mortgaged: in the same manner as a house put on a mortgaged lot is covered by the mortgage. Aided by the counsel who represented The Philadelphia, Wilmington and Baltimore Railroad Company, I have not been able to find any authority which denies the right of any railroad company to mortgage all its property when empowered by the legislature to do so, or that which asserts such mortgage will not cover locomotives, cars and all other property necessary for the exercise of its franchises, whether the identical articles are in possession of the company at the execution of the mortgage, or afterwards added to what was then held.</p> <p>“ I am of opinion that all the articles levied on in this case were conveyed in trust by the mortgage, are protected by it, and cannot be sold under the execution of any judgment-creditor of the mortgagor.” * * *</p> <p>“With reference to the Philadelphia, Wilmington and Baltimore Railroad Company, the only defendant in interest, it is peculiarly proper that a principle which would restrain her should be brought into action. She has agreed with her co-obligees to take a common security, and quoad the property covered by the mortgage; it seems to me she is to be treated as a partner, not to be permitted to gain any advantage over her fellows, nor even to injure them, although that might work no advantage to herself. She has agreed too, as I think, that the corporate property and franchises shall be sold as an entire thing; because they would thus be sold as a whole and on credit, which a sheriff cannot give, and so would bring a larger price; and further still, because the specific covenant that all the bondholders may become purchasers, pay the purchase-money by their bonds, and continue to enjoy the privileges granted by the Commonwealth, may be fulfilled.</p> <p>“When parties bear such common relations to each other, a court of equity will protect the interests of all: J. C. Slemmer’s Appeal, 8 P. F. Smith 178; Williamson v. N. Albany and Salem Railway, U. S. C. C. Ohio, per McLean J. 9; American Railway Times, No. 37; Bowen v. Brecon Railway Co., 4 Law R. 3 Eq. Cases 541.” * * *</p> <p>The master reported that the 3d and 4th prayers he granted.</p> <p>The Philadelphia, Wilmington and Railway Company excepted to the report.</p> <p>The court (Butler, P. J.) confirmed the report, and decreed “that the property levied upon as set forth in the schedule ‘B,’ attached to the complainant’s bill and made part thereof, is a part of the mortgaged premises conveyed by the mortgage, &c., and is exempt from levy and sale under the execution on the judgment mentioned in said bill, or under any other execution that may hereafter be issued thereon; that the Philadelphia, Wilmington and Baltimore Railroad Company and D. W. C. Lewis, sheriff, are perpetually enjoined from selling the property levied upon under the execution issued on the judgment recovered as aforesaid, &e., and from further proceeding on the execution against the said property or any other property, real or personal, corporate rights and franchises granted and conveyed by the said mortgage, and that the said defendant, the said D. W. C. Lewis, sheriff, withdraw his levy from the property now levied on.” * * *</p> <p>The Philadelphia, Wilmington and Baltimore Railroad Company appealed to the Supreme Court, and assigned the decree of the Court of Common Pleas for error.</p>

<p>Error to the Court of Common Pleas of Buchs county: No. 311, to January Term 1870.</p> <p>This was an amicable action and case stated, in which Bower Nunamaker was plaintiff and James Meginnis and Thomas Schwartz, defendants, entered June 15th 1859.</p> <p>The facts stated in the case were : The defendants were owners of a farm in Plumstead township, Bucks county; at April sessions, 1865, viewers were appointed to lay out a road in that township ; at the September term the viewers reported that they had laid out a road through the defendants’ farm, and assessed damages to him at $40. Exceptions were filed to the report, and a petition for reviewers was presented.</p> <p>On the 30th of November 1865, the defendants sold their farm to the plaintiff. On the 16th of January 1866, the exceptions to the viewers’ report were dismissed, and reviewers were appointed. At February sessions the reviewers reported, laying out the road as before, and assessing the damages at $150. On the 11th of June 1866, this report on exceptions, was set aside. On the 4th of April 1867, the Court of Quarter Sessions granted a rule on the defendants to show cause why the damages assessed by the viewers should not be directed to be paid to the plaintiff. On the 8th of April an order was issued to open the road according to the report of the viewers. On the 10th of June the rule to show cause was discharged. The plaintiff demanded the payment of the damages from the county commissioners; they refused to pay him, and on the 10th of October paid them to the defendants.</p> <p>If the court should be of opinion that the plaintiff was entitled to the damages paid to the defendants, the judgment was to be entered in his favor for $40, with costs; but should the court be of - a contrary opinion, judgment to be entered in favor of the defendants for costs.</p> <p>The Court of Common Pleas (Chapman, P. J.) entered judgment for the plaintiff for $40, according to the case stated. This was assigned for error by the defendants on the removal of the record to the Supreme Court.</p>

<p>Error to the Court of Common Pleas of Bevies county: Of January Term 1870, No. 340.</p> <p>This was an action of trespass q. c. f. brought May 13th 1865, by Anthony Scharff against John Keener and Greorge Mull. The defendants pleaded “ liberum tenementum.”</p> <p>On the trial, January 25th 1870, before Woodward, P. J., the plaintiff gave in evidence the will of John Hopp, proved March 4th, 1799, by which he devised ; “to my daughter, Dorothea Schneider, the land whereupon I have lived in my time, * * * after her death all shall come to the heirs of Johannes Hopp, Jr.” There was evidence that Dorothea occupied the locum in quo, as far back as the recollection of old witnesses would go, which was almost to the death of her father. She was taken to the poorhouse towards the close of her life. The directors of the poorhouse rented the property. She died at the poor-house about 1850 or 1851 at the age of about 105 years. The plaintiff gave in evidence a warrant to himself, dated January 20th 1868, for 187 acres, interest to commence January 20th 1804, survey January 23d, and patent February 12th.</p> <p>Peter Scholl testified that his father had purchased two shares of the property, and that he (witness) had got to be owner of the premises about 1852, and leased the property a year or two after-wards.</p> <p>The plaintiff then offered in evidence a deed dated April 30th 1827, from Philip Hopp of Virginia to Peter Scholl of Bucks county, Pennsylvania, for a tract of land “left to him (Hopp) by his grandfather Johannes Hopp, laying in Schuylkill county, Pennsylvania, now occupied by widow Schneider.” The deed further recited: “ It is understood the will which entitled said Philip Hopp to a share in the above estate was made by his grandfather, Johannes Hopp, the 24th day of March 1795, and proved on the 4th- day of March, at the Register’s office in Reading, A. D. 1799.”</p> <p>The evidence was rejected, the *bourt saying: — “There is no proof that the releasors in this deed were the heirs of John Hopp, Jr., and the proof already given shows that no possession was had under the deed for any period exceeding fifteen years before suit brought.”</p> <p>The plaintiff then offered to prove by Peter Scholl, son of the grantor in the deed, that his father was told before and at the time of his purchase, by the grantors and others that they were the heirs-of John Hopp, Jr., deceased. This offer was rejected.. Bills of exceptions were sealed. The plaintiffs gave in evidence conveyances vesting the title of Scholl in him. He also gave evidence of his possession and of the trespass by the defendants.</p> <p>The defendants gave evidence, warrant and survey in March 1830 to John Koebel, which it was agreed, covered the land in controversy, and traced the title of Koebel to themselves.</p> <p>The jury, under the instruction of the court, found for the defendants.</p> <p>The plaintiff took a writ of error. He assigned for error the rejection of his offers of evidence.</p>

<p>1. A defendant claiming exemption under the Act of April 9th 1849, must elect to retain such articles as he desires and notify the officer at the time.</p> <p>2. A constable levied on goods appraised at more than $300 in possession of a defendant, who alleged that enough of them belonged to others to reduce the amount below $300. The question as to legal fraud was between the alleged owners and the constable.</p> <p>3. If the goods which were actually the defendant’s, were less than $300 his claiming “ all that belonged” to him was a sufficient election.</p> <p>4-, There is no form for making an election; it is enough if made in such way that the officer ought not to misunderstand.</p>

<p>1. In many cases where one has received goods wrongfully, a contract of purchase will be inferred, and the owner may waive the tort and recover for goods sold and delivered.</p> <p>2. If there be no fraud, a recovery cannot be had under a count for goods sold and delivered, for the specific articles in the possession of a defendant.</p> <p>3. Where a person tortiously in possession of another’s goods converts them into money or securities, assumpsit for money had and received may be maintained.</p> <p>4. The count for money had and received is governed by equitable principles, and lies only where the defendant ex cequo el bono ought to refund the money received.</p> <p>5. Where there has been no deceit or unfair practice and the defendant may with good conscience retain the money, he cannot, on a count for money had and received, be compelled to repay, although he could not have recovered it originally.</p> <p>6. T. sent shingles to J., which were delivered to D. In an action by T. against D. for goods sold and delivered, D. might show that he received the shingles by mistake, supposing they had been sent to him by K., with whom he had been dealing, and that he had settled with K. and paid him without knowledge of the mistake.</p>

<p>Appeal from the decree of the Court of Common ■ Pleas of Berks county: In Equity : No. 220, to January Term 1870.</p> <p>This bill was filed, August 27th 1868, by Wayne J. Stump and Samuel Fisher against William Spangler, John Woomer and Samuel Hoover.</p> <p>It set out:</p> <p>2. That the plaintiffs owned a tract of land on which there was a mill, and that its sole power was furnished by the waters of Tulpehocken creek, and it was indispensable to the business of the mill that they should have the use of the water undiminished, as they had theretofore had it.</p> <p>3. That across the creek, on the land of John S. Reed, about 800 yards above the plaintiffs’ mill, a dam had been for a number of years and was then erected, the water from which furnished the motive power for the plaintiffs’ mill, from which dam a race conducted water from the creek into the Union Canal.</p> <p>4, 5 and 6. That the defendants, about August 1st 1868, enlarged and deepened the race, and raised the dam four inches, causing an additional flow of water from the dam into the canal; that this water was not returned into the creek above the mill, and they had lost the use of it; that therefore they could not run the mill as theretofore, and their business at the mill was irreparably injured.</p> <p>7. That upon finding the water thus diminished, on the 2d of August, with the consent of Reed, they reduced the dam to its former height and the water flowed as theretofore.</p> <p>8. On the 6th of August the defendants again raised the dam, producing the same effect in the flow of water and the same injury to the mill as before, and that the defendants declare their intention to maintain the dam at the same height for all time to come.</p> <p>The prayers were:—</p> <p>2. That the defendants be enjoined to remove the obstructions, so that the plaintiffs may have the full use of the stream as heretofore ; and also from causing any obstruction at any time hereafter in the flow of the creek, so as to interfere with the plaintiffs’ right to it.</p> <p>On the same day the defendants filed an answer which set out:</p> <p>1 and 2. They were the workmen and servants of the Union Canal Company, a corporation established by Act of April 2d 1811, which had constructed a canal connecting the waters of the Susquehanna at Middletown with the Schuylkill at Reading, and that the canal has been in operation more than thirty years, transporting produce and goods from Middletown to Reading: that by the above act they were authorized to adopt any mode “ or any improvement hitherto adopted, or such as may hereafter anywhere be invented in the system of internal navigation, and apply the same from time to time, and for such purposes to have power to purchase lands, mills, mill-ponds, waters, watercourses, or other real hereditaments as shall in their opinion be necessary, and in default of purchasing, the Court of Quarter Sessions shall award a venire at the instance of either party, directed to the sheriff of any adjoining county, who shall summon a jury of disinterested men in order to ascertain and report to the said court the damages sustained by the owner or owners thereof, by reason of the said canal or works; which report being confirmed by the court, judgment shall be entered thereon, and if not paid, execution may be awarded for the money and reasonable costs,” &e.</p> <p>3. They averred that by virtue of this law, the Union Canal Company is authorized and empowered to take and make use of the waters of said Tulpehocken creek for the uses and purposes of their said canal.</p> <p>4. They denied knowledge as to whether the plaintiffs are the owners of the tract of land and grist-mill, but admitted that there is a tract of land so situated on which there is a grist-mill; said premises having been formerly owned and occupied by a certain George Keiser..</p> <p>5. They averred that the power for running the mill is furnished by the Tulpehocken creek, at such times and seasons as the water of said creek is not all needed for the maintaining and keeping up of the said canal by means of a dam erected across the said Tulpehocken creek, and a race leading therefrom to the canal, constructed by the canal company, about the year 1827, and rebuilt by them in the summer of 1850 or 1851; that the surplus water of said dam not needed for canal purposes, which is permitted to flow over said dam, furnishes the motive power for said mill.</p> <p>6. They denied that the dam across the said Tulpehocken creek is on the land of Reed, but is on lands of the canal company, duly obtained by inquisition from Reed, for which they paid a valuable consideration.</p> <p>7. They denied that the dam furnished the watér-power of the mill, and averred that it was not erected for that purpose; but that it was erected by the canal company, of whose works it forms an integral part, for the purpose of supplying that portion of their canal adjacent thereto with water; and that without it said canal could not be operated or its navigation maintained.</p> <p>8. They denied that they enlarged or deepened the race by which the water of said dam is conveyed into the canal.</p> <p>9. They admitted that in July 1868, by order of the canal company, the dam having settled and sunk eight or ten inches, they raised the breast by timbers fastened thereon to the height of four inches only, and not to the height originally erected in the year 1850 or 1851, and did not thus increase the flow into the canal equal'to the flow after the erection of the said dam in 1850 or 1851.</p> <p>10. They averred that the water of said Tulpehocken creek being thus retained for supplying said Union Canal with water, the water could not bé returned into the creek for the use of the mill without destroying the navigation of the canal for a great distance and rendering useless the entire canal.</p> <p>11. They averred that the mill at no time since the rebuilding of the dam, &c., received any water of said creek or dam but such as was not necessary for the supply of said canal, &c.</p> <p>14. They averred that the tract of land and grist-mill, now claimed by the complainants, was formerly owned by George Reiser, that said canal company rebuilt said dam and race in 1850 or 1851, at which time Reiser was seised in fee of said tract of land, grist-mill and water-right, &c., and that Reiser did, on the 13th day of September 1851, petition the Court of Quarter Sessions of the county of Berks, asserting therein that the canal company had turned all the water of said Tulpehocken creek and taken the same into their said canal, &c.; that the court awarded a venire to the sheriff of Lancaster county, who summoned a jury, and said jury on the 28th day of October 1851, assessed and valued the damages done to Reiser at $2100; which sum was paid to Reiser by the canal company.</p> <p>15. They averred that during dry seasons all the water of Tulpehocken creek at said dam is needed and absolutely required for the purpose of supplying said canal with water, &c.</p> <p>16. They averred that at all stages of water it is imperatively necessary that said timber should remain upon the breast of said dam, and without it, that part of the canal company’s navigation could not be maintained.</p> <p>On the 24th of April 1869, the plaintiffs petitioned the court, representing that after an examiner had been appointed, without formal replication, and before the taking of testimony had been finally closed, it occurred to them, that owing to the alie gations in the answer, that the defendants were the servants of the canal company, it became necessary to amend the bill by averring that the canal company were, at the time of the grievances committed, an insolvent corporation ; that no compensation had been made or security given, as required by the Constitution, for the damage done by the acts charged in the bill, and they were not bound to submit to the uncertain remedy of the Act of 1811, and prayed that they might amend the bill according to the petition.</p> <p>The court allowed the plaintiffs to amend the bill within twenty days, and on,the 26th of April they filed an amended bill. On the 19th of May the defendants filed an answer to the amended bill, denying knowledge of the insolvency of the canal company, and averring that the plaintiffs had an adequate remedy at law under the provisions of the Act of 1811. On the 7th of September, the case, by agreement of counsel, was set down for argument. It was argued September 17th; on the 18th the plaintiffs applied to amend their bill again.</p> <p>The application set forth that the answer and testimony showed that the acts of the defendants were done as the servants of the Union Canal Company, and “in order to cure a formal defect and reach the merits of the said suit, the corporation should be made a defendant,” &c.</p> <p>The counsel for the defendants waived a formal proceeding to bring in the canal company, in answer to the petition. On the 1st of November the court fixed the 20th of the same month for hearing the application for amendment. On that day the argument for amendment was heard, and the defendants moved to dismiss the bill for want of jurisdiction. On the 4th of December, the court allowed the amendment, directed a replication to be filed, nunc fro tunc, and upon an opinion by Van Reed, J., made the following decree: — ■</p> <p>“Let a decree be entered enjoining the Union Canal Company of Pennsylvania, to remove the timber to the extent of three and a quarter inches from the breast of their dam, and from hereafter placing any obstruction to the flow of the water over the breast of said dam, until they shall first pay or give security for the' damages likely to result from such obstruction. And it is ordered that the defendants pay the costs.”</p> <p>The defendants, including the Union Canal Company, appealed to the Supreme Court.</p> <p>They assigned for error:—</p> <p>1. Allowing the amendment making the Union Canal Company co-defendants.</p> <p>2. Making a decree enjoining the Union Canal Company.</p> <p>3. Not dismissing the bill as to Spangler, Woomer and Hoover, with costs.</p> <p>4. Granting an injunction.</p>

<p>Error to the Court of Common Pleas of Berks county: No. 47, to July Term 1869.</p> <p>This was an action of debt, by Moses K. Graeff against The’ Beading Industrial Manufacturing Company, Jeremiah Miller and others, stockholders in the company. The writ was issued August 3d 1861.</p> <p>The company had been organized in November 1857, under the General Manufacturing Law of April 7th 1849, Pamph. L. 563, Purd. 689, and its supplements, one of which was passed March 27th 1854. By the 2d section of that act, Pamph. L. 215, Purd, 694, pl. 32, it is provided that “ the stockholders * * * shall be jointly and severally liable in their individual capacities, only for debts due to miners, quarrymen and other laborers, employed by such companies, and for machinery, provisions, merchandise, country* produce, and materials furnished for said companies respectively,” &c. The action was brought under this section on notes given by the company to the plaintiff. - After some progress had been made in the trial, the jury was discharged, and the following order was made by the court:—</p> <p>“ Edward E. Pearson, Esq., is appointed commissioner to take testimony in this case, to ascertain and report facts, and state the account between Moses K. Graeff, the plaintiff, and the Reading Industrial Manufacturing Company. The whole evidence submitted to the commissioner, to be by him reported to the court, is rendered necessary, by the nature, and circumstances of the case, arid is expressly assented to by the counsel for the parties. And by express agreement of the parties, the rights of either and any party to a review of the record, by writ of error, from the Supreme Court, for any cause of error which could be alleged, if the trial of the facts were had before a jury, is fully reserved. The report of the commissioner shall he subject to all legal objections to the competency of witnesses and the legality of the evidence.</p> <p>“The commissioner in his report is required to specify the different classes of indebtedness of the said company to the plaintiff, and to state the general nature of the transactions on which each class of indebtedness shall appear to have been founded. The fees of the commissioner and the costs accruing before Mm, to abide the event of the suit.”</p> <p>Aug. S. Sassaman, Esq., was afterwards appointed commissioner in place of Mr. Pearson.</p> <p>The commissioner reported the facts in detail; and referring to the orders, &c., he also reported: * * *</p> <p>“ After this company got under way, they dealt with Moses K. Graeff, who kept a country store near their works. They arranged with him to give to their hands such of the necessaries of life as they should require upon the presentation of the company’s orders, which was accordingly done. The orders were always kept to the end of the month, when they were settled for and notes given for them, which were to be in full satisfaction for the articles of merchandise furnished to the hands, when they were paid. All the receipts given in the receipt book of the company by Graeff, upon the reception of notes for the orders were precisely of this form. The orders were all payable in merchandise and were so paid by Graeff. There were no orders produced before your commissioner, except those for April 1860. It is said in the testimony that these were the only orders in the possession of Graeff, the others having all been returned to the company, and their place supplied by notes given and receipts for those notes according to the form of notes before the commissioner. * * * It is quite clear as a fact, that orders were given for the whole period, as alleged, for flour and merchandise, and that Moses *K. Graeff filled them during all this time. * * * According to the evidence offered from the books by the plaintiff, the whole amount of merchandise sold and not balanced on the book from April 1st 1859 to April 21st 1860, inclusive, is . . $5031.01</p> <p>The amount for flour orders filled during February and March 1860, is ...... 394.87</p> <p>Altogether, ....... $5425.88</p> <p>“ This is the state of the account without calculating any interest of the amounts as they appear upon the book added at "the end of each month.</p> <p>“ It is alleged by the plaintiff, that for these monthly amounts there were notes given at the end of each month, payable respectively in sixty days and in four months, the amounts each month being divided into halves. This is sustained by the testimony of witnesses, and the notes.”</p> <p>The commissioner then gives a statement of the notes, with costs of protest and interest, amounting in the whole to $7072.11.</p> <p>He then proceeds: “ They all were in satisfaction and payment of merchandise and flour orders when paid. Note No. 11 is no.t signed in the same way as the other notes; but this note was given in renewal of another note or notes, previously given by the Industrial Manufacturing Company to Moses K. Graeff for merchandise furnished to operatives.</p> <p>“ It will be observed that the above statement does not include the April orders of 1860, for which no note was given. * * *</p> <p>On the amount of the month, to wit: on $488.65 I have allowed six months’ credit and added the interest $192.03 up to June 24th 1867, making the sum of . . . .' $680.68</p> <p>Add to this the amount of notes to same date . 7072.18</p> <p>Whole amount of indebtedness . . . $7752.86</p> <p>* * * “ The notes presented to the commissioner and which are in evidence, are given for the balances; in fact, they nearly all correspond with the very figures of the books. Those which the witnesses say are renewals, are the only ones that differ from the books materially. These notes do not correspond with the orders per month on the store of Mr. Graeff. But in all these cases the company has charges against him which are deducted before the notes .have been given.</p> <p>* * * “ The commissioner understanding it to be his duty only to present this case to the court as it is presented before him, having nothing to do by way of argument or decision, offers this to the court as the result of his appointment.”</p> <p>The report of the commissioner was accompanied with all the oral testimony heard by him, together with copies of all the book entries, statements of orders, and other documents produced before him.</p> <p>January 18th 1868, a rule was granted to show cause why judgment should not be entered in favor of plaintiff upon the report of the commissioner. December 7th 1868, the rule was made absolute “and judgment entered in favor of the plaintiff for $7752.86, with interest from the 24th day of June 1867, to this day, on the principal of the notes and orders ascertained in the commissioner’s report. The prothonotary will make the calculation and enter judgment as of this day for aggregate amount. Same day judgment entered in favor of the plaintiff for $8433.50, the amount having been ascertained by the prothonotary.”</p> <p>April 8th 18,69, the court granted a rule to show cause why the judgment entered in this case shall not be stricken off for want of power in the court to enter any judgment on the report of the commissioner. April 24th 1869, the court (W. J. Woodward, J.) discharged the rule.</p> <p>The defendants removed the case to the Supreme Court, and assigned for error :—</p> <p>1. Entering judgment for the plaintiff below.</p> <p>2. Entering judgment on the report of the commissioner, the facts being insufficient to warrant such judgment, especially as the report does not find and state whether the arrangement made with the plaintiff below and the orders given and sales made in pursuance of it, were in the ordinary course of business or not.</p> <p>3. Refusing to strike off the judgment on motion of the counsel of the defendants below, for want of power in the court to enter the same on the report of the commissioner.</p>

<p>1. D. was convicted of fornication and bastardy, and sentenced to pay 75 cents per week for the child’s support until it arrived at 7 years, &o. He could be discharged only upon compliance with this order: per Chapman, P. J.</p> <p>2. The order did not impose the obligation to support the child, coupled with the right to its custody : Id.</p> <p>3. Until the child became a public charge, the directors would have no right to take it from its mother: Id.</p> <p>4. No responsibility rests on a putative father beyond the consequences of the conviction, and no reciprocal right springs from the duty imposed on him by the law: Id.</p> <p>5. D. claimed the custody of the child and offered to maintain it. The directors refused to allow the custody to him. Held, that he was not relieved from liability on his bond to indemnify the county ¡ Id.</p>

<p>Error to the Court of Common Pleas of Bucks eounty : No. 334, to January Term 1870.</p> <p>The Farmers’ National Bank of Bucks County, on the 12th of March 1868, brought an action of assumpsit against Michael Uhler.</p> <p>The cause of action was a promise by the defendant to pay a note which he had endorsed, which had been discounted by the plaintiff, and had been dishonored, hut of the non-payment of which the defendant had not been notified in time. The note was as follows:—</p> <p>$1000. Philada., Oct. 26th 1864.</p> <p>Sixty days after date, I promise to pay to the order of M. Uhler, one thousand dollars, without defalcation, for value received-</p> <p>W. F. Fersuson.</p> <p>Payable Third National Bank. (Endorsed) MICHAEL TJHLER, RICHARDS & YOUNG.</p> <p>Ferguson, the drawer^had made an assignment for the benefit of creditors and was insolvent.</p> <p>The evidence for the plaintiff was that the defendant having been called upon by C. N. Taylor, one of their officers, agreed that if the bank would wait until the estate of Ferguson should be settled, and would take their dividend from his estate, and would not consider the fact that the defendant was under protest, a bar to his future accommodation, he would waive all irregularity in the protest, and hold himself bound to pay the note, the same as if it had been duly protested, and would make up whatever deficiency there might be from Ferguson’s estate. The defendant then knew that he was discharged by reason of the insufficient protest. Notes were subsequently discounted for the defendant by the plaintiff, and never thrown out on account of the other note being under protest. There was evidence of the same agreement having been made with Richards and Young, and the defendants together. On the 18th of July 1867, the plaintiff received a dividend of $33.71 on the note from the estate of Ferguson.</p> <p>The defendant testified that Taylor charged him with having deceived the plaintiff as to Ferguson’s ability, threatened to prosecute the defendant for fraud; that a short time afterwards he called on the defendant, and said “ we had better compromise this thing. I told him we would pay the note on certain conditions: if they would wait and strike a dividend, would pay the note, if the bank would discount our paper as it had done before up to time estate was settled. He agreed they would do that. Mr. Young was by. When I spoke of ‘ we,’ I referred to Richards and Young; we were partners in the hay business. We told them at bank if they would continue to discount our paper as they had done before, we could pay this note. We offered a note that day ; it was discounted. We offered a few more papers and they stopped and wouldn’t discount any more; there was one or two notes discounted after this arrangement was made. Our paper was thrown out.”</p> <p>Defendant gave similar evidence by Richards and Young, the other endorsers; also that the note was business paper.</p> <p>The defendant asked the court to charge:&emdash;</p> <p>1. That if the jury believe from the evidence that this note was business and not accommodation paper, that after the bank failed to fix the liability of the endorser by protest, it was exclusively the debt of Ferguson the drawer, and there was no liability on the part of Uhler the endorser.</p> <p>2. That since the passage of the statute of “ Frauds and Perjuries,” of 1855, no parol agreement to pay a non-protested note, or to waive protest after maturity can be enforced, unless the promissor be the principal debtor, or the principal debt be released in consideration of such promise or waiver.</p> <p>3. If the jury believe that the agreement in this case consisted of a promise to pay such part of the Ferguson note as should remain unpaid after distribution of Ferguson’s assets by his assignee, and that the bank held the note against Ferguson, whose assets were, under the agreement, to be exhausted before recourse was had to the defendant under his promise, then such promise is within the Statute of Frauds and Perjuries, and the plaintiff cannot recover in this action.</p> <p>4. If the jury believe that the alleged agreement consisted of a promise to pay the Ferguson note, which promise was extorted by a threat, that the parties who were discharged by the laches of the bank should not have their paper discounted unless they paid a note upon which they were not legally liable, the enforcement of such a promise would be contrary to public policy, and the plaintiff could not recover in pursuance of it.</p> <p>5. If the defendant, at the time of the alleged arrangement, was not in bank on any paper which was dishonored by him, and which, by the then existing rules of the bank, would have excluded him from the privilege of discount, then .a promise which had for its consideration the waiver of such rule in his favor would be void for want of consideration.</p> <p>6. If the jury believe from the evidence that the Ferguson note was discounted for the benefit of the firm of Richards & Young, and that the alleged agreement consisted of a promise of the members of that firm, as such members, to pay the balance of.the Ferguson note, then the action should be joint, or be an action against the firm, and a recovery cannot be had in this suit against the defendant individually.</p> <p>The court (Chapman, P. J.) directed the jury to render a verdict for the plaintiff, if they believed the evidence.</p> <p>The verdict was for the plaintiffs for $1250.63.</p> <p>The defendant took a writ of error, and assigned the instruction of the court for error.</p>

<p>1. Interest is not demandable until the money is due.</p> <p>2. Interest is compensation allowed the creditor for delay of payment. _</p> <p>_ 3. Interest is completely due whenever a liquidated sum is unjustly withheld.</p> <p>4. Interest is a legal and uniform rate of damages allowed in the absence of express contract, when payment is withheld after it has become a duty to discharge the debt.</p> <p>5. If a vendor cannot make title at the time for payment of the purchase-money, the vendee, if he retain possession, must pay interest as a compensation for the profits he is receiving from the land.</p> <p>6. Interest not allowed on articles of agreement in this case.</p>

<p>Error to the Court of Common Pleas of Luzerne county: No. 822, to January Term 1870.</p> <p>This was an action of ejectment for 50 acres of land brought, December 7th 1867, by Benjamin Moss against Wesley Culver. The plaintiff having died pending the suit, Daniel Moss and others, his heirs and devisees, were substituted as plaintiffs.</p> <p>The legal title to the premises was in the plaintiffs. The defendant claimed under a parol exchange between himself and Benjamin Moss.</p> <p>The case was tried January 11th 1870, before Dana, J. The plaintiffs gave in evidence a deed, dated October 31st 1831, from Isaac Smith to Benjamin Moss; also the will of Benjamin Moss, giving legacies out of the proceeds of sale of the premises in dispute, to the plaintiffs in this'suit. The plaintiffs then rested.</p> <p>The defendant gave evidence that he went into possession of the premises in 1847. He also gave in evidence a contract, dated February 1st 1841, between Benjamin Moss and Joel Culver and Wesley Culver for 241 acres of land for the consideration of $420, of which $25 was to be paid down, and $100 on each succeeding 1st of December till paid; a general warranty deed to be given to the vendees on the second payment. Endorsed on the article, were receipts from February 1st 1841 to August 24th 1845. The receipt on the last day was — “ $50. Yoke of oxen, $80 cash.” Also an endorsement, “ 5th November 1855. Received satisfaction in full of the within article.”</p> <p>Joel Culver testified that he and the defendant went into possession of this land immediately after the contract; witness took possession of 100 acres and the defendant of 140. About 1846, the defendant married Fanny, a daughter of Benjamin Moss; after his marriage defendant went into possession of the 50 acres in dispute, which was about a quarter of a mile from Benjamin Moss’s residence; Benjamin Moss told defendant to move into the house; there were a house and barn on the 50 acres; “sometime in the fall of 1848 Benjamin Moss sent for me, went over in the afternoon; I asked him what he wanted; he said he had been trying to make a trade with Wesley Culver for the lot of land where he lives for the 140 acres of woodland;” he said he had certain reasons; one was that Wesley wanted to move upon the 140 acres, and because his wife was addicted to having fits, that she would be away from under his eye, and Wesley would be away sometimes, and he (Moss) could not look to her in Wesley’s absence. He said the reason I sent for you is, I have been trying to get a trade with him and cannot get him to agree to it. He said I want you to go down and try to prevail on him to trade this 50 acres for the 140 acres. * * * He said I want you to go down and offer him that lot where he lives even up for the 140 acres, tell him I will make him a general warranty deed for it in lieu of that I was to make for the 140 acres. I went down and found Wesley and his wife at home; I said I understand that you and the old man Moss have been talking about trading; yes, he said, we have; I said, Wesley, how does Moss want to trade? Wesley said he wanted to trade him this where he now lives for the 140 acres up yonder. * * * I said, I think you had best trade, you will do better. He said if you think it is best, you may tell old Moss I will trade. * * * I came to Moss’s house; he said, What success ? I said, If you will go right down you can get a trade; I told him that Wesley said he would trade; he said I will trade with him then before I sleep. * * * I met Benjamin Moss in the road; he said I made that trade last night; I said how did you trade ? he said just as you proposed yesterday; he said I got the sleigh; you know there was $18 due on the land from Wesley; he said I want you to turn right about with me and go up there; we proceeded together up there; we met Wesley out at his barn; I said to Wesley, It appears that you and the old man have traded? Wesley said, We have; the old man said I want you to remain here just as you are living now. * * * Benjamin Moss said, Now, Joel, I will give him a general warranty deed for this. I am going down to Koons to-morrow, he generally keeps blanks, if I get them I want you to fill up four titles; I want you to fill up one for Almon Wilkinson and his wife for 80 acres of Wesley’s land up there; I want you to fill out one for John Holmes for that where he lives; I want you to fill out one for yourself, for your part of the 240 acres, and one to Wesley for the 52 or 53 acres where he lives; I met him the next day; he told me he didn’t get them, for Koons hadn’t any; he said I want you when you go to Wilkesbarre to get those blanks; about one month, or two or three, I told him I was going to Wilkesbarre and I could get the blanks: he said, Glet them and I will pay for them; I got three blanks, I did not get four because the printer did not have them; I went back. It was rather neglected, and the deeds were not made out for some weeks or months. Now, he said, I want you to go on and fill up those titles; he said, I want them made out in my lifetime; he said, You or Wilkinson or Holmes or Wesley will have to wait; he said, I will go and get Wesley to wait, and if he won’t, you will have to wait; he sent me word that Wesley would wait; I went at it and filled up the deeds for John Wilkinson and wife, John Holmes and myself; he said I should get Squire Crocket and send him word and he would acknowledge them; I did so, and Moss acknowledged them; the one to Wilkinson was for 80 acres of Wesley’s 140 acres. At the time he made the deeds he told me the reason he wanted to make the trade with Wesley; that he wanted to give Wilkinson 80 acres, Rood 35 acres, and Jefferson Arnold 35 acres of Wesley’s 140 acres; Wesley has been in possession of the 50 acres from the time of the trade up to this time; he had paid the full purchase-money and interest; he has put in repair the fences, set out fruit, grafted and done the ordinary work; he has lived on it just as a man would live on his own farm; he has made stone wall, quite considerable; he has cleared some of it and has farmed it, and cleared it and used it as men ordinarily do, and lives there now; Wesley never had anything to do with the 140 acres after the trade; Benjamin Moss took possession and sold it; he made the deeds in February 1849 to me and Wilkinson and wife; it ran along about eight or ten years; Benjamin Moss and Wesley got in a little difficulty in the church; after this Benjamin Moss made a deed to Wesley for this land. * * * The objections that Wesley made to the deed that Moss made, was that about three acres of land was left out. The title Wesley said was good enough, but it did not embrace all the land. The charge in the church trial was that Benjamin would not make a deed to Wesley; Moss said he would make him a deed after the trial.”</p> <p>Defendant gave in evidence assessments from 1849 to 1868, showing that the land in controversy was assessed to him.</p> <p>John Blanchard testified: “I was called upon by Benjamin Moss twelve or thirteen years ago to take the acknowledgment of a deed to Wesley Culver; I took the acknowledgment; it is for the land Wesley lives on; after-I took the acknowledgment Moss gave me the deed and requested me to see him and give it to him ; I took it; I handed him the deed and told him what it was; he looked it over and read it; he said it did not cover all the land he claimed; upon those grounds he would not take the deed; he said it failed to cover several acres; I gave the deed back to Mr. Moss.”</p> <p>The defendant then gave in evidence the deed, dated January 7th 1854, for the land in dispute, “ 50 acres strict measure,” consideration $1000.</p> <p>The defendant then gave evidence by a number of other witnesses of declarations by Benjamin Moss, that defendant owned the land in dispute; that .he had “traded” him (Moss) another piece of land for it. He also gave evidence of his possession for eighteen or twenty years; of improvements made by him. There was evidence also that Moss and his son and defendant worked together on the farm in and prior to 1848, and in that year Moss declared defendant was going to work it after that. The defendant’s wife died in. 1856.</p> <p>On the part of the plaintiffs, in rebuttal, Lucy Wilkinson, one of them, and a daughter of Benjamin Moss, testified that in 1848 Moss said to defendant: “ I have been thinking if you are willing, I will take back the 140 acres and let you have and stay on this where you are as a tenant; some day it will fall to you or my daughter as an heirship; but he said, I can’t pay you back the money that you have paid me on that other which was about $140, but I will tell you what I will do; I have got two yoke of cattle in the yard, you may take your pick of the two yoke for $100, and the rest I will pay you, and let you have a plough and a harrow besides; Wesley said it would be very good for him, that it would save him from hunting around to get a team ; Wesley had been living on the place very near a year; Wesley got the plough and harrow and oxen ; I never heard anything about a trade; I have heard Culver say he was satisfied; that my father had paid him back all he had paid him on the contract.”</p> <p>Daniel Moss, another of the plaintiffs, testified in a similar manner. They gave other evidence also in rebuttal.</p> <p>The plaintiffs requested the court to direct the jury to render a verdict in favor of the plaintiffs.</p> <p>I. Because they have shown an undisputed legal title to the land — not affected by the alleged parol sale or exchange of the same between B. Moss and the defendant.</p> <p>II. The defendant has not proved such a parol sale or exchange to him as will except his case out of the operation of the Statute of Frauds and Perjuries.</p> <p>1. Because he has not shown by clear, direct, and positive testimony that a sale or exchange ever was agreed upon by him and B. Moss face to face — nor has he shown by clear, direct, and positive testimony what the consideration was, nor that he ever paid it.</p> <p>2. Because he has not proved that he has made such permanent valuable improvements upon the land in dispute as that he cannot be compensated in damages.</p> <p>3. Because he was a tenant under B. Moss in possession of the the land in dispute at the time of the alleged parol sale or exchange of the same to him, and therefore could not and did not take such an open and notorious transfer of the possession of the same as the law requires.</p> <p>The defendant requested the court to charge the jury—</p> <p>1. That courts recognise a distinction between a parol exchange and a parol sale of lands; and that, while the former cannot be supported without a delivery of possession of both tracts in accordance with the contract, yet an exchange from its nature imports transfer of title, and the evidence to support it covers a wider latitude than would be admissible in a mere parol sale of lands.</p> <p>2. That it is not essential to the efficacy of a parol exchange of land, that each party should take immediate possession of the property exchanged.</p> <p>3. That where two parties have exchanged lands, and one of them has gone into possession of his part, sold the same and reaped the fruits of his bargain, and in the mean time suffers the opposite party to take and have exclusive possession of what he gets by the same exchange, and to continue therein, claiming and using notoriously the property as his own, tilling it, improving it permanently, paying the taxes on it as they are annually levied, and exercising absolute dominion and control over it for a period of nineteen years and upwards, such a possession, accompanied by a full payment of the consideration stipulated in the original contract of exchange, amounts to ownership, and may be maintained against the original owner, and his heirs and assigns, notwithstanding the Statute o'f Frauds.</p> <p>5. That a direction by one who has exchanged the land occupied by his tenant, to said tenant himself, for other land belonging to the^tenant, that the tenant should continue thereafter in possession of the land so exchanged to him, in pursuance of the contract of exchange, and no longer as tenant, if proved, afford evidence proper for the consideration of a jury, of a surrender of the original tenancy and an entry in pursuance of the parol contract of exchange, particularly if the occupancy thereafter was exclusive, continued and notorious, and was followed by an immediate change of the assessment of the land, the payment of the taxes, and the non-payment of rent to the original owner.</p> <p>6. That if the jury believe from all the evidence in the case, that a parol contract for the exchange of lands was made between Benjamin Moss and Wesley Culver, in pursuance of which each went into possession of the land of the other, and that Benjamin Moss sold and conveyed the land received by him, thus rendering it impossible for him to place Wesley Culver in his original position, and that Culver held notorious, continued and exclusive possession of the land received by him, and exercised ownership over the same for a period of nineteen years and upwards, and that the land was assessed to, and the taxes paid by him, and that the parol contract of exchange had been so fully executed that it would be against equity to rescind the same, that such contract was not within the Statute of Frauds.</p> <p>In his charge Judge Dana said :—</p> <p>* * * “ The questions of law connected with the case are not wholly free from difficulty, and are also raised by written points submitted by the counsel of the plaintiffs and defendants respectively and our instructions to you will be our answers to them.</p> <p>“ A parol exchange falls within the provisions of the statute we have just read, and the burden of proof is therefore upon the defendant setting up a parol title to the fee in the lands in controversy, and he is bound under the construction of the act by the court, clearly, distinctly, directly and not by inference, to show by credible and competent evidence, that the contract of exchange was made, the time when, its precise terms, the contents, quantity and boundaries or other sufficient designation or means of identifying the lots interchanged, so as to leave no uncertainty in respect to either; whether the exchange was upon equal terms, or if an additional equivalent was to be given, to whom, its amount and the fact of its payment; and that under and in pursuance of such agreement thus definitely and distinctly proven, exclusive possession was taken by each, of the lands he received under the exchange, has continued to be openly held, improvements not susceptible of compensation in damages made, and that in fact the contract has been so far executed that it would be against equity to rescind it.</p> <p>“ The taking possession and its retention being open, visible and continuing acts, are uniformly declared by the courts to he indispensable requisites to take the case out of the operation of the statute. It is not essential that such taking possession be instant and immediate on the hour or day of the contract, but must be taken under and in pursuance of it and within such reasonable time as the situation of the premises and of the parties warrant, and as shall leave no doubt by length of interval or other circumstances that the possession is directly consequent upon and in pursuance and part performance of the contract. The defendant’s 2d point, thus understood and qualified,, is affirmed.</p> <p>“ It is made our duty to charge the jury, that it is incumbent on the defendant who sets up a title in derogation of the easy and certain statutory requisites for the assurance of lands, to leave upon your minds no reasonable- doubt. It is not enough, as in ordinary civil actions, that the weight of evidence inclines in his favor; he must go farther, and leaving nothing in uncertainty, satisfy you that each of the requirements we have specified are met and answered. Neither is it sufficient that the case rests upon the unsupported testimony of a single witness, although the evidence of one competent and credible witness present at the agreement, corroborated by the clearly proven declarations and acts of the parties, may suffice. Declarations also from liability to the misapprehension and misstatements of witnesses, especially after the declarant is dead, are not the most reliable evidence, and require to be thoroughly scrutinized by the jury.</p> <p>“ Guided and governed by these general rules, do you find under the evidence that a contract of exchange was made as claimed by the defendant, and are its terms and extent thus fully defined and proved ?</p> <p>“ If not, or if the agreement was that which is alleged by the plaintiffs, the defendant’s case fails him, your inquiries need proceed no farther, and your verdict should be for the plaintiffs. [But having proved the contract of exchange, did Benjamin Moss, under and in pursuance of it, take exclusive possession of the 140 acre lot, exercise over it acts of ownership, sell and convey portions or the whole thereof, and thus place it out of the power of himself or of his heirs to reinstate the defendant in his former position ? His taking possession, his exercise of ownership and sales are not denied by the plaintiffs; they claim, however, that those acts were not in pursuance of an exchange, but of a release and surrender of his equity by the defendant. Did the defendant Culver in like manner take and thenceforward hold the exclusive, open, visible possession of the lands he was to receive under the exchange ?</p> <p>“ In this connection we advert to the points, two in number,, submitted, with his reasons attached, by the plaintiff’s counsel.</p> <p>“We decline to affirm either of these points, and refuse to charge that as matter of law the verdict must be for the plaintiff, or that the defendant has not proved such a parol sale or exchange as will except his case out of the statute. The points and reasons appended assume as facts what must, in our view, be' submitted to the determination of the jury. The third reason for the 2d point assumes the plaintiff’s theory of the result of the evidence, that the defendant was at the date of the exchange not merely a temporary and permissive occupant of the house, but was in possession of the 50-acre lot also. Should the jury, however, find under the evidence that up to and at the date of the alleged exchange, Culver was merely occupying the house, and assisting to work lands owned by him, as well the 50-acre lot as his other lands in the vicinity, and that under and pursuant to the exchange, took the exclusive possession of the piece nowin dispute, had it assessed to him, paid the taxes thereon, and continued to occupy exclusively, and use and improve the same for a period of nineteen years, Moss having taken like possession, occupied and disposed of the 140-acre lot or a large portion thereof, the case would in our opinion be brought within the exceptions to the statute and the defendant may recover. The statute against frauds is to be so construed and enforced as not to be made either a pretext, an instrument or a defence of fraud. The defendant’s 3d and 6th points are affirmed.</p> <p>“We have already stated that a parol exchange is within the statute, and enumerated the proof requisite to take the ease out of the same. We are also of the opinion that the courts have recognised a distinction between a parol sale and an exchange, when such exchange has been followed by a corresponding possession and subsequent sale of one of the tracts exchanged, whereby it was rendered impracticable to reinstate the before existing relations of the parties.</p> <p>“ In both the fact of possession taken is requisite, and the distinction relates chiefly to the kind and manner of proof, and the defendant’s 1st point thus qualified is affirmed.</p> <p>“ In the nature of an exchange, which is effected and made up of the concurrent acts of both parties, it results that possession taken of one of the tracts under the circumstances of this case, if the defendant’s evidence is believed, may be considered by you in weighing the evidence of possession by the other, and if Wesley Culver at the date of the exchange was in possession both of the house and of the 50-acre lot, the facts assumed in the defendant’s 5th point, if clearly found, are, in connection with the other facts of the case, relative to the possession by both Moss and Culver, evidence proper for the consideration of the jury of a surrender of the original tenancy and of a re-entry, in pursuance of the parol contract of exchange; and this point, thus understood, is also affirmed.”</p> <p>The verdict was for the defendant.</p> <p>The plaintiffs took out a writ of error. They assigned for error the answers to the points of the respective parties and the portion of the charge in brackets.</p>

<p>1. Weaver leased from Yeager but could not get possession. In a suit for damages, Weaver might prove that he had sold his real and personal estate, that he was without a house and compelled to board, as showing lost time, trouble and inconvenienoe, the result of the breach of the contract.</p> <p>2. The refusal to strike out testimony after it has been received without objection, is not reviewable on error.</p> <p>3. In such case the only course is to request the court to instruct the jury to disregard the testimony.</p> <p>4. Under the Act of April 15th 1869, husband and wife may be witnesses for, but not against each other.</p> <p>5. By the Amendment of the Constitution of 1864, it was not intended that the title should be a full index to all the contents of the law, but to prevent including in an act, sections on entirely different subjects.</p> <p>6. The title of the act naming “ parties in interest” is cognate with the subject to extend the law to “ persons” — not “parties” — and to those who had before been excluded on the ground of policy.</p>

<p>Appeal from the decree of the Orphans’ Court of Philadelphia: No. 127, to July Term 1869.</p> <p>In October 1865, Dolores E. McCredy and others, executors, &c., of the will of Thomas McCredy, deceased, petitioned the Orphans’ Court of Philadelphia, setting forth, that Bernard Mc-Credy was seised of two pieces of real estate, one in Rockdale, Delaware county, the other in Norristown, Montgomery county; that by his will he gave to his daughter, Emeline M. Ewing, the sum of $2000 annually during her life, and charged upon his Delaware county property the sum of $38,333, in order to raise the annuity ; the principal to go to her children at her death. He made a like provision, charged in the same manner, for another daughter and her children. He gave all the residue of his estate, after the payment of his debts, and securing the payment of the annuities to his daughters and the principal to their children, to his son, Thomas McCredy. These legacies were decided by the Supreme Court to be a lien upon all the real estate of which Bernard McCredy died seised. Thomas McCredy afterwards died, having made his will, by which he gave his executors authority to sell his real estate. By virtue of that authority the executors sold the real estate in Norristown, out of the proceeds of which they paid the legacy to the children of one of the daughters who was dead. After setting out other facts, not necessary to notice here, the petitioners prayed the court to decree, under the 1st section of the Act of February 23d 1853, that the Norristown property be discharged from the lien of the legacy to Mrs. Ewing and her children.</p> <p>The court referred the matter to George Junkin, Esq., as auditor, who recommended a decree as prayed for. The report was set aside by the Orphans’ Court (Ludlow, J.) and the decree prayed for refused.</p> <p>The Act of 1853, Pamph. L. 98, Purd. 304, pl. 195, is as follows:—</p> <p>“ Whenever any testator shall have heretofore by his last will and testament, duly proven, given or bequeathed any annuity or annuities to any person or persons, or directed the payment of an annuity or annuities by his executors or trustees or bequeathed legacies of principal sums, payable at a future period, or upon contingencies, or under other circumstances by which the payment or discharge and satisfaction of such legacies may be postponed or may not take place until a distant period after the death of such testator, and either by the express words of the will or by the rules of law, in the construction thereof such annuities or legacies are made or become a charge upon all the residuary estate of' the testator, and whenever any testator shall hereafter make any such bequest and provisions, in any such case it shall be lawful for the executors of any such will or for any such annuitant or legatee, or for any person interested in such residuary estate, at any time after the expiration of one year from the granting of letters testamentary, to apply by petition to the Orphans’ Court having jurisdiction of the accounts of such executors, setting forth the facts and praying relief, whereupon the court may order a citation to be issued to the parties interested, to appear on a day certain, to show cause why the relief prayed for should not be granted, and upon the return of such citation if all the annuitants, legatees and other persons interested, shall have had due notice of the application,-the court may refer the case to an auditor, with directions to inquire into the circumstances, and to report upon the amount and condition of the estate, and upon the expediency and propriety of exempting any part or portion of the residuary real estate, from the lien and charge of such annuities and legacies, or of either of them, having due regard to the absolute and ultimate security of such annuities and legacies, and upon such report being made, and due notice thereof having been given to all persons interested, it shall be lawful for the court to make a decree in the premises, and if it shall appear that all the debts of the testator have been paid or sufficiently secured, the court may order and decree that such part or parts of the residuary real estate, or such real securities or investments in public stocks, shall be set apart or appropriated, as in the judgment of the court, shall appear to be and with reasonable probability continue to be adequate and sufficient beyond all charges, expenses and deductions for the payment of such annuities and legacies, providing always a sufficient surplus to meet any contingency, diminution or depreciation in the value or income of the estate, and securities so set apart, and when such decree shall have been made, it shall be further lawful for the court to order and decree, that all the remaining residuary real estate of the testator, not so specifically set apart, shall be and remain discharged and exonerated from the lien and charge of any and every such annuity and legacy, in the hands of any bond fide purchaser of such real estate for a valuable consideration, and such decree shall have the force and effect of discharging and exonerating all such real estate accordingly, unless an appeal be taken from such decree to the Supreme Court, within one year after entering the same.”</p> <p>The executors of Thomas McCredy appealed, and assigned, for error the setting aside the auditor’s report, and refusing to grant the prayer of the.petition.</p>

<p>Error to the Court of Common Pleas of Luzerne county: Of January Term 1870.</p> <p>This was an action of ejectment, brought the 26th of July 1867 by Abraham Ruland and Betty Ruland his wife in her right, against Joseph Church and Charlotte Church. The premises claimed in the writ were an undivided sixteenth part of a piece of land in the city of Scranton, containing 40 acres. The premises had originally been the property of Thomas Griffin, who, by his will, dated March 27th 1852, and proved April 3d 1854, devised them to his daughter Letta, adding to the devising clause, “ The said daughter Letta is to have the said lands, &c., in fee simple for ever, without any entailment whatever.” Letta Griffin, the devisee, by her will, dated September 22d 1862, and provedApril 24th 1867, gave legacies to the children of her sister Charlotte, amongst whom was Mrs. Ruland, the plaintiff, to whom she gave $100. She disposed of the residue of her estate as follows:—</p> <p>“ It is my will and wish that Charlotte Church, the youngest daughter of my said sister Charlotte, should have the residue of all my property, real, personal and mixed; and I do give and bequeath the same to her, subject to the payment of the foregoing bequests and debts.”</p> <p>The residuary devisee was the defendant in this case. The sister Charlotte’s married name was Stevens. The plaintiffs alleged that Thomas Griffin had devised the 40 acres to his daughter Letta, at her solicitation and on her pledge; that after her death the one-half should go to the children of her sister Charlotte.</p> <p>The cause was tried, November 15th 1869, before Conyngham,</p> <p>Thomas Griffin, a brother of Letta Griffin, the last devisor, testified that in 1853, Letta and her father being together, the father “ said Letta had prevailed on him, that he did not put it into the will, and said that he wanted to make another will. Then Letta said, Father, I will do just as I have agreed with you. Then father replied, I am afraid you won’t do it. Then Letta says, Father, I will do just as you have said about the. property. Then father said, Now we 'wfilll call you for a witness. Now the one-half of this tract of land you can have in trust for your lifetime, and at your death, you see, it is equally divided among Charlotte’s children. Yes, Letta says, I will do so. Then father says, Now, Tom, I want you to remember this. That was all that was said. They were talking about the land he had willed to Letta; was the same land. He called me as a witness for the will to remain as it was, and the Stevens heirs to have one-half of the land at her death. He said Letta had persuaded him not to put this in the will for the Stevens children, and she would do it.” The witness further testified that the father said frequently after this, in the presence of Letta, that Charlotte’s children were to have one-half of the land, and that since his death Letta had often told him that she held one-half the land in trust for her sister- Charlotte’s children.</p> <p>Henry Griffin, a nephew of old Mr. Griffin, testified “ that he went to see him about 1852 or 1853; the old gentleman went out of the house. Letta then says, We have been having a pretty hot time here for a while. Says I, What is up ? She says, I have got father to change his will; that she told him she would not keep house for him; she would not stand it unless he had his will changed ; she had got-it now changed about as she wanted it; she had got her brother Ren out of the will as one of the executors, and Randall in his place. Then she went on to say that she had prevailed on her father to will Lotty’s right to her for her use during her life, and her father was very much dissatisfied about it, and he would be in pretty soon, and something would be said about it. About that time it appeared he had been at the door and overheard some of it; he came in and was pretty angry. Walked the floor, stamped his cane, and said he wouldn’t stand it; said it was not his will; it is Letta’s will. Then Letta said, I’ll leave it to Henry, and let me tell my story. She then went on and told what trouble she had had in bringing up that child Lotty Church. Spoke of restless nights and trouble, and she thought she ought for this to have her sister’s share during her life. * * Uncle Tom said he wanted them to have it after his death; they never had anything, and he wanted them to have it. He says, I am afraid, Henry, she won’t do it. I says, Yes, Uncle Tom, she will; she has told me so to-day that. she would do it. Then, says he, Henry, I want you to see that it is done. I said I didn’t know but that I should be dead. Said he didn’t like it the way it was; said he didn’t want it that way, as it would give the chance for a lawsuit; that he would not then disturb the will; would leave it alone for awhile and think of it. That was about all. Some months after that I stopped to see her again, and he began to talk about it in Letta’s presence. She says, Now, father, Henry knows all about it; you must be crazy; he says, I know that. She says, Didn’t you talk it over with Thomas and Ferdinand Yan Storch, a few days ago, and call them up as witnesses to the agreement we had made concerning the will of this property ? He said, That is just what I am coming at. Now, says he, Letta is to have the use of this property; one-half of it don’t belong to her; one-half is hers to have the use of it during her life, and then the one-half is to go to the Stevens heirs. She said she was going to give it all to them. He says, Maybe not in the way I want to give it; maybe you may give it all to one or two of them, as you may like. She said she would give it to all of them. He said he wanted it understood that one-half she had nothing to do with; it must be equally awarded among them; that with the other part she might do what she pleased. She might give it in the family or out of the family; didn’t care what she did with it. She said she would do as she had agreed, and Thomas and Ferdinand Yan Storch called as witnesses.”</p> <p>Sarah A. Heermans testified :—</p> <p>“ After the death of Uncle Thomas Griffin, I had conversations with Letta frequently about her father’s will. She said that she and her father had an understanding that the portion belonging to the heirs of Charlotte should remain in Letta’s hands until Letta’s death, and then go to Charlotte’s children. Charlotte Church and Letta, talking about the heirs and the will in my presence, said that the Stevens^ heirs were dissatisfied; that she had beard that they threatened to break the will of her father Thomas. She said that they must wait; that they would have their mother’s portion when she was done with it. She had promised her father that at her death she would secure to the heirs of Charlotte Stevens the portion that belonged to their mother. The same conversation was frequently talked over in the presence of Charlotte Church and Letta Griffin. Some of these conversations took place after Charlotte married Church, in the presence of Charlotte Church,”</p> <p>McKiel Stevens testified:—</p> <p>“ Old Thomas Griffin was my grandfather. My mother’s name was Charlotte;’she has been dead about 28 years, perhaps SO years. I have a suit for my portion of this land. I had conversations with my aunt Letta; the first conversation soon after grandfather’s death; was in the same spring. She said, that grandfather had left one portion to her for her lifetime, and then was to be given up to us. On another occasion she told me she had been offered $300 or $350 per acre for it, and wanted to know if I thought she had better sell it for that. * * * On the next occasion she told me she had sold it for $500 per acre to Edmund Griffin, The next conversation I remember, I received a letter from her, and went to see her. Edmund Griffin had failed to make payments, and he had threatened to keep her out of her property during her lifetime, and wanted I should take hold of it and try to get the property back into her hands. She said she had given up the bond to him, and only held the mortgage, and wanted me to come to Wilkesbarre, and see Lawyer Dana, her counsel, as to what could be done. She said, Do not leave a stone unturned; the property belongs to you children; it was left to me by your grandfather for you children. I came to Wilkesbarre and saw Lawyer Dana. Some time elapsed and she sent for me again, and wanted me to come to Wilkesbarre. Said she wanted me to work as if working for myself, for the property belongs to you heirs. She said if she got the property back into her hands she would sell it again, if I thought best, for $500 per acre. She would have the payments so made that out of the first payment she would try to have it so she could let the heirs have $500 each, and that as the payments fell due she would divide it among them with the exception of what she wanted for her own use. She never said to me that she had used any influence with her father to make the will. Church soon after married into the family.”</p> <p>Durlin Griffin testified :—</p> <p>“I am son of Thomas Griffiin the elder. Was present at conversation between father and sister Letta about this property in the latter part of August 1853. Ferdinand Yan Storch was called as a witness between my father and sister Letta. My father appeared agitated. He spoke to Ferdinand, and said, I am glad you are come; I am going to make another will. This brought my sister Letta to the door. Then she spoke and said, father thinks all the time I would not give Lotty’s children their mother’s property. Then she called Ferdinand Yan Storch for a witness. Then father spoke: Letta is to have one-half of this property, or her children and I want you to remember this ; the children are to have it at Letta’s death.”</p> <p>Charlotte West testified:—</p> <p>“ I am no relative to these parties. Letta came into my house, shortly after her father’s death, and said her father had willed her 40 acres of land, and the house. She said, The half of it belongs to my sister; she mentioned her portion. I promised father, when he made his will, that the half of his property should be divided amongst my sister’s children, as she never had anything, and she said, I can do with my half as I please.”</p> <p>The other children of Charlotte Stevens testified that Letta had declared to them that under the arrangement with her father, they, the children of Charlotte were to have one-half the property on Letta’s death. There was other testimony also of the same character.</p> <p>The defendants gave in evidence, a deed dated August 19th 1856, from Letta Griffin to Edmund Griffin for 19 acres, part of the 40 acres; judgment in her favor against Edmund and sale to her by the sheriff of the same land. They gave evidence of the instructions given by Thomas Griffin as to drawing his will, in which nothing was said about Letta’s agreement, and in which he told his counsel specifically to insert the clause which declared she should have the land “without any entailment.”</p> <p>There was much other evidence on the part of the defendants for the purpose of showing that there was no arrangement such as would affect Letta vyith a trust.</p> <p>A number of points were submitted by each of the parties:</p> <p>By plaintiffs, amongst others :—</p> <p>5. If Letta Griffin, at the time she made a conveyance of a part of the land in dispute to Edmund Griffin, held the undivided one-half part of that land in trust for the heirs of Charlotte Stevens, deceased, coupled with a power to sell the same, and on such sale received from Edmund Griffin part of the purchase-money, and had the balance of the purchase-money secured by bond and mortgage on the land; and afterwards Edmund Griffin failed to pay the balance of the purchase-money so secured, and she obtained judgment against him on said bond, and upon said judgment sold the land at sheriff’s sale, and at such sale bid the same in for a sum less than the debt upon which' it was sold, and had the deed made in her own name, she cannot hold the undivided one-half part of the land that she held in trust for the heirs of Charlotte Stevens, deceased, against their will; but a resulting trust is raised in favor of the said heirs, and Letta Griffin thereupon held the undivided one-half part of said land in trust for the heirs of the said Charlotte Stevens, deceased.</p> <p>6. If Letta Griffin was a trustee before her sale to Edmund Griffin, and she made the sale to him, taking a bond and mortgage for part of the purchase-money, upon which by suit and judicial sale the land came back to her, she still remained a trustee, and the right of the Stevens heirs would not be divested by reason of such sale; a fortiori is this the case if she consulted with the Stevens heirs in relation to such sale, promising to divide the proceeds when received.</p> <p>The defendants’ 5th and 6th points were:—</p> <p>5. If a trust existed by operation of law in Letta Griffin, at any time, and she with the knowledge, acquiescence and consent of the plaintiffs sold the land, or any patt thereof, to Edmund Griffin in fee simple, which was afterwards sold at judicial sale, purchased by Letta Griffin, and conveyed to her by sheriff’s deed, she takes under it discharged of the trust.</p> <p>6. That the will of Thomas Griffin, having been duly admitted to probate, and more than two years having elapsed since the 1st day of October 1856, without the plaintiffs having brought their action, and duly pursued it to recover the land in controversy, it is conclusive as to such realty, and the plaintiffs cannot recover.</p> <p>The other points related to the question of the creation of the trust.</p> <p>The court affirmed the plaintiffs’ 5th and 6th points, and refused the defendants’ 5th and 6th points.</p> <p>After referring to the evidence and stating the principles of law applicable to the question of parol trusts, Judge Conyngham said:—</p> <p>“ Where an estate is invested in another by will, as in this case, and at the time of the creation of the estate the devise is agreed to be received, and is accepted for the use of another person, either immediately or to commence at a future time, by the agreement and understanding of the parties, the person from whom the estate is to pass, and the one in whom it is to vest, as here Thomas Griffin the elder and his daughter Letta, a valid trust for such other person will be supported and recognised in law, even though it is all dependent upon parol or verbal testimony.”</p> <p>He further referred to the evidence in connection with the law, and concluded :—</p> <p>“ In all cases of claimed parol trusts, the whole evidence must be carefully examined and fully weighed and considered, and the alleged facts must be satisfactorily established in the judgment of the jury, before they can be allowed. It does not depend upon what a jury may think ought to have been done by the grandfather, under the circumstances mentioned, for the benefit of his grandchildren, but what did he do, or what did he leave undone, that he desired to do ? By the will in writing, in plain and clear language, he gave the entire fee simple of tbe property to his daughter Letta, and she and those claiming under her, have the right to ask the court and jury so to hold and decide, unless under the principles already stated, the jury find such a state of the facts fully and clearly proved, as to establish a trust for the one moiety of the trust for the Stevens heirs, as heretofore explained to you.</p> <p>“ The case, under these rulings, presents a question of fact for you-; you are to judge of the credibility of witnesses, whether they are to be believed or not, whether mistaken or not, and what was the true understanding, in fact agreement, if any, between Letta Griffin and her father as to this property. We have carefully explained to you, what would be necessary in order to establish a valid trust, which can be enforced in this suit.”</p> <p>The verdict was for the plaintiffs.</p> <p>The defendants removed the case to the Supreme Court, and there assigned fifteen errors. The 9th assignment was to the refusal of the defendant’s 6th point.</p> <p>The 14th was to the affirmance of the plaintiffs’ 5th and 6th' points and the refusal of the defendants’ 5th point.</p> <p>The others related to the charge of the court on the question of the parol trusts, and are sufficiently indicated in the opinion of the Supreme Court.</p>

<p>1. Supervisors cannot change the route of a road without the sanction of the Quarter Sessions.</p> <p>2. Supervisors contracted to change the route of a road ; the contractors had no knowledge that the supervisors were acting without authority. Held, that they could recover against the township for their work.</p> <p>3. The township had a remedy over against the supervisors to charge them with the illegal expenditure in their settlement before the auditors. ■</p> <p>4. Supervisors have a general authority to repair public roads, and to bind the township for the expense.</p> <p>5. The principal must suffer the loss if a general agent exceed his power in a particular, apparently within his authority.</p> <p>6. Those who work for supervisors on the roads are not hound to make inquiry beforehand, as to the rightful location of the route.</p>

<p>Appeal from the decree of the Court of Common Pleas of Luzerne county: To January Term 1870: In the matter of the distribution of the proceeds of sheriff’s sale of the personal property of Abraham Lorentz.</p> <p>The fund for distribution amounted to $548.60, of which, after payment of costs and expenses of audit, $104 were appropriated by the auditor, II. W. Palmer, Esq., without objection, to the payment of rent due by the defendant, leaving a balance of $852.59 to be appropriated to the execution-creditor entitled.</p> <p>Jacob Stern recovered a judgment against Lorentz for $2000. On the 29th of June 1868, he issued a fi. fa. on this judgment, and directed the sheriff “not to do anything with the writ until further orders.” No levy was made on this writ and it was returned, stayed by order of the plaintiff’s attorney. An alias fi. fa. was issued to the next term on the same judgment and the same orders were given. This writ also was stayed without a levy. On the 9th of November 1868, a pluries fi. fa. was issued to the next term ; the same order was given as to this writ; in consequence of this instruction no levy was made. On Sunday, the 6th of December, the plaintiff requested the sheriff to proceed at once to levy on the defendant’s goods, saying that he was afraid the defendant contemplated moving them. The sheriff declined to act on Sunday, promising to execute the writ on Monday. Before executing the writ on Monday, a fi. fa. on a judgment in favor of Herz Lowenstein was placed in his hands, and a levy made under both writs.</p> <p>The auditor found that “ Stern’s writs were not issued for the purpose of levying and selling the defendant’s goods, but for some other purpose known only to him. * * * I am satisfied in this case that it was not the bond fide intention of Stern to sell the goods of Mr. Lorentz, but that his execution was issued for other purposes, and that it must be postponed to that of Herz Lowenstein, which was legally issued and duly prosecuted.” The auditor awarded the balance of the fund to Lowenstein.</p> <p>Stern excepted to the auditor’s report. The court confirmed the report; for the reasons given by the auditor, and also because the order to proceed, having been given on Sunday, was of no validity.</p> <p>Stern appealed, assigning the decree of confirmation for error.</p>

<p>Certiorari to the Court of Quarter Sessions of Luzerne county: No. 28, to January Term 1870.</p> <p>The proceedings removed in this case related to the laying out, &c., of a road in Springbrook township, Luzerne county. By an Act of March 1st 1860, Pamph. L. 117, the Court of Quarter Sessions of Luzerne county, “ may at any term or session direct the said courts to continue at the then following term or session one or more weeks in addition to those regularly appointed by law; and for such additional week or weeks to issue venires for traverse jurors, as now required for the regular term or session.”</p> <p>The August session for 1868 commenced on the fourth Monday of August, which was the 24th, and continued two weeks, expiring September 5th. On that day the court appointed three viewers to view and lay out a road in Springbrook township.</p> <p>On the 7th of September 1868 the'following order was entered of record:—</p> <p>“Now, September 7th 1868, it is ordered that the Sessions and Oyer and Terminer be continued at the November sessions next two weeks, and that the second or adjourned week commence on the fifth Monday of November 1868, and that venires issue in said court for each of such weeks.”</p> <p>The viewers made a report which was filed December 4th and confirmed nisi; this day was in the additional week of the court, as directed by the special order of September 7th. Several exceptions as to matters of form were filed. The court recommitted the report to the viewers, and the errors complained of were corrected in an amended report, which was confirmed absolutely August 16th 1869. The report was signed by two viewers, and it did not show that all the viewers had been present.</p> <p>On the removal of the proceedings, the following errors were assigned:—</p> <p>1. Overruling the exceptions and confirming the report.</p> <p>2. It does not appear by the report that the viewers were all present..</p>

<p>1. When the question whether a structure is one or two buildings, under the Mechanics' Lien Law, depends upon disputed facts, it is for the jury.</p> <p>2. The acts and sayings of a party are evidence against him if they relate to the subject-matter of the issue.</p> <p>3. Under the circumstances in this case the question, one or two buildings, was properly submitted to the jury.</p>

<p>1. The Act of February 24th 1845 (Roads, Bridges, &c., in Luzerne) requiring three viewers only, does not affect the 39th sect, of the General Road Law of June 13th 1836, requiring six persons to inspect bridges.</p> <p>2. Inspectors reported deficiencies in the bridge which might be remedied at a cost which they specified, and recommended that the contract price be paid after deducting the cost named. Held, that this was a report against the completion of the bridge according to contract.</p> <p>3. The Quarter Sessions directed the amount for deficiencies to be deducted and the balance to be paid with interest from the filing of the report. Held to be correct:</p>

<p>Error to the Court of Common Pleas of Tioga county: Of January 1869, No. 24.</p> <p>On the 5th of November 1859 Stephen Babcock filed a bill in equity against Henry Cotton and Daniel W. Smith. The bill set out that the plaintiff had contracted with the defendants to sell to them 1,000,000 feet of standing timber, on a tract of land designated; and if so much of the kind of timber described in the agreement could not be obtained, the defendants might take it from an adjoining tract belonging to the plaintiff. The bill averred that there was sufficient timber, on the first-named tract to fill the contract, but that notwithstanding the defendants had taken and were taking timber from the other tract. The prayer was, that they might be restrained from taking timber from the second tract. A preliminary injunction was granted by White, P. J. No answer was filed; and on the 1st of December 1859 the parties, by an agreement entitled of the suit in equity, agreed, “ under the provisions of the Act of June 16th 1836, * * * to submit all matters at variance and in controversy in our said suit, and all matters in controversy concerning and about the contract mentioned in said suit” to three arbitrators (named in the agreement) who were to assess the damages, if any, sustained by the plaintiff in consequence of breach of the contract by the defendants. It was further agreed “ that our submission to said award or umpirage be made a rule of and in said court, and hereby respectively bind ourselves to submit to and be finally concluded by the award or umpirage of said referees or a majority of them, under the penalty,” &c.</p> <p>On the 30th of April 1864 the arbitrators made an award in favor of the plaintiff for $1317.83. This award was read January 27th 1868, and filed by order of the court. Exceptions were filed by the defendants February 24th 1868. On the 23d of March 1868 a rule was granted to show cause why the award should not be set aside. On the 25th of March, “more than four days having elapsed since reading the award, and no exceptions having been filed, on motion, judgment is entered on the award.” On the 30th of July 1868 the rule to show cause why the award should not be set aside was discharged, White, P. J., delivering the opinion of the court.</p> <p>The defendants took out a writ of error. The assignments of error were to the refusal of the court to set the award aside.</p>

155, to July Term 1869. ■> This was a scire facias sur mortgage, issued August 18th 1866, by John McGraw against A. H. Foster and Farrington Barealow. The writ was served on Foster; no service was made on Barealow.

889. On the 29th of August 1868, Adelia Hancock petitioned the Court of Common Pleas, setting forth that she had been married to Frederick Hancock on the 20th of August 1866, and had cohabited with him until August 1st 1867, &c., that “for a considerable time past the defendant had given himself up to adulterous practices and had been guilty of .adultery with a certain female called Julia McKeon, and divers other persons to the petitioner unknown,” &c., and in the usual…

80, of July Term 1869. Joseph Santee died on the 28th of September 1861. After his death there was found amongst his papers an instrument in his own handwriting purporting to be his will, but not signed. The paper contained the following provisions:— “ 2.

<p>Error to the Court of Common Pleas of Piles county: No. 394, to January Term 1868.</p> <p>This was an action of assumpsit, brought May 26th 1866, by Lenah M. Titman against Jeremiah Titman, administrator, &c., of John Titman, deceased.</p> <p>The claim was for services rendered by the plaintiff to the decedent, who was her father, from 1848, when she was eighteen years of age, until 1866, when the decedent died. The defendant pleaded non assumpsit and the Statute of Limitations.</p> <p>Isaac Clifford testified, that in 1848 the decedent in his presence told the plaintiff that he would give her $ 1 a week if she vrould stay with him; she said she would stay.</p> <p>John J. Titman, a son of decedent, testified that in 1848, the decedent told plaintiff if she would stay and work for him, he would give her $1 a week; she said she would stay and work for him ; she remained until her father’s death. She was from home once; the decedent sent the witness for her to tell her to come home, and he would give her $1 a week. After the mother’s death, in December 1863, the decedent said he was to give the plaintiff $2 a week; she said she ought to have more, but she would stay for that. Decedent said he was not able to pay while he was living, but he would leave enough to pay it; that after the rest of his debts were paid, she would have the rest of it; he said he was not able to.pay her during his life, hut would leave enough to pay her; he said this in her presence; she said she did not want money so long as she had her clothes.</p> <p>Charles Titman testified, that in a conversation with her father, the plaintiff said she had been working there, and maybe would never get anything. The father said she should have her pay; she had nothing to account for her on her work; she had nothing on her wages; this was a few days before his death.</p> <p>A number of other witnesses testified to similar conversations between the decedent and the plaintiff; and also to declarations by the decedent not in her presence, that he was to pay her as above testified.</p> <p>The defendant gave evidence in answer to the plaintiff’s case. He also gave evidence that on the day of taking the inventory of the effects of the decedent, the plaintiff said if the administrator would deliver to her certain property which she claimed to be her own, she had no claim on the estate for wages, and that th.e property was delivered to her.</p> <p>The defendant’s points were:—</p> <p>1 The contract or agreement spoken of by some of the witnesses, as made by the intestate with his daughter before she was twenty-one years of age, was not binding upon the intestate, and no recovery for wages can be had thereon.</p> <p>2. There is not in this case such clear, distinct and satisfactory evidence of a contract for wages, between the intestate and the plaintiff, as to warrant a recovery by said plaintiff.</p> <p>3. If the plaintiff can recover anything in this case, she cannot recover for any services or work done, more than six years prior to the institution of this suit.</p> <p>4. The continuance of the services from year to year raises no presumption against the intestate of the renewal or continuance of the alleged original contract.</p> <p>5. The declarations of the decedent are not evidence to aid or establish a special contract, unless the original contract is proved, in clear, express and unequivocal terms.</p> <p>6. If the jury believe the testimony of Joseph L. Gardner and Lemuel L. Hawk, then such a settlement and compromise was made between the plaintiff and administrator as will prevent a recovery in this case.</p> <p>7. The evidence is not so clear and unequivocal as to leave no doubt that the relation between the intestate and the plaintiff was not the ordinary one of parent and child, but of master and servant, and there cannot therefore be any recovery in this case.</p> <p>The court (Jones, P. J.) charged: — •</p> <p>“ I. The contract, so called of 1848, was made when plaintiff was but eighteen. The father was entitled to her services at that time. He agreed to pay for what he had a right to receive — what was his own. She was not of age to make a valid contract. But suppose the father wras pleased to put her services on the footing of a servant — who shall deny his right ? And if no one can deny his right to do that, and he does it, who other than himself shall deny her right to recover? If she was a stranger, no one could doubt her right to recover. Lenah could recover only on that footing. Her father could make her a stranger. Could put their relations on the footing of an express contract, and the question is, did he do it ? If he did, and there is nothing else in the way, she could recover for such wages.</p> <p>“ II. There must be clear, distinct and satisfactory evidence of a contract for wages between the intestate and the plaintiff, old John T. and Lenah, to warrant a recovery by the plaintiff, but we cannot say there is no such evidence. There is such clear, distinct and satisfactory evidence in the case, if you believe it.</p> <p>“ III. The plaintiff can recover for services done more than six years prior to the institution of this suit, if there be evidence in the case that satisfies you the contract, if any, was that the wages were not to be paid until old John Titman’s death. The wages so became by such an agreement a debt of the present, to be paid in the future, and the statute could only run from the death. Or, if a clear, full, explicit, distinct acknowledgment of the debt was made and promise to pay it.</p> <p>“ IV. These services were by the week, at so much per week, and ran through years. Were not services by the year, rendered from year to year, year in and year out ? It would be hard to require such a contract to be renewed every week. I should say that in such a case there is no renewal required — that whatever time was served would be taken as a whole.</p> <p>“ V. This is answered in the affirmative. Upon this principle precisely all these declarations were received in evidence. If an original contract be not proved in clear, express and unequivocal terms, these declarations go for nothing. If such contract be proved, they go in corroboration of it merely.</p> <p>“ VI. This would be so if you take the evidence precisely as it stands, but without imputing anything to the witnesses you will enter into the evidence and satisfy yourselves that it is correct— that the witnesses are not mistaken.</p> <p>“ VII. I cannot say the evidence is not so clear and unequivocal as to leave no doubt that the relation between the parties was not the ordinary one of parent and child, but of master and servant.</p> <p>“ 1. If the jury believe that no relation of master and servant but only of parent and child existed between John Titman and Lena, your verdict should be for the defendant.</p> <p>“ 2. If the jury find that at the appraisement she agreed to release her claim for services if the administrator made no objections to her receiving her things in the house, and that was done, the verdict should be for the defendant.</p> <p>“ 3. If the jury believe that the relation of master and servant was created between old John Titman and Lenah, by a clear, distinct and satisfactorily expressed contract between them, she to be paid one dollar a week up to her mother’s death and two dollars after that; the payment to be postponed till after his death, your verdict should be for the plaintiff.”</p> <p>The verdict was for the plaintiff for $1030.</p> <p>The defendant took out a writ of error, and in fifteen specifications assigned the charge for error.</p>

409, to January Term 1869. This was an action of assumpsit, by A. Reeves Jackson against William S. Rees, brought January 2d 1868, on a promissory note, dated July 24th 1865, drawn by the defendant in favor of the plaintiff for $2250, payable fifty days after date. The note was part of the consideration for 500 shares of the stock of the Pennsylvania Imperial Oil Company.

438, to January Term 1870. In the estate of Susanna Steckel, deceased. ' Susanna Steckel died in January 1868. On the settlement of her estate there appeared to be in the hands of her administrator, for distribution amongst her next of kin, the sum of $1077.44.

130. This was an action of trespass q. c. f., brought November 26th 1867, by Thomas L. Foster, for the use of James S. Smith, against Joseph Neiss. The plaintiff declared that the defendant broke and entered his close, and cut and carried away hemlock trees, pine trees and spruce trees to the value of $1000. The plaintiff gave evidence of the cutting on his land by the defendant of white and yellow pine trees, hemlock trees, oak trees and spruce trees.

<p>Error to the Court of Common Pleas of Lehigh county: No. 30, to January Term 1870.</p> <p>This was a feigned issue under the Sheriff’s Interpleader Act, in which John Haak was claimant and plaintiff, and 0. B. Linderman and C. O. Skeer, partners as Linderman & Skeer, defendants. The issue was directed July 5th 1869; and tried before Longaker, P. J., September 13th 1869.</p> <p>On the 24th of May 1867, Haak, the plaintiff, and one B. F. Palm, entered into the following agreement:—</p> <p>“ The said John Haak for the consideration hereinafter mentioned doth covenant and hath sold and by these presents doth agree to deliver to the said B. E. Palm a certain house car, for which the said Eranklin Palm agrees to pay the sum of $600, in the following manner, to wit(Then follow the stipulations for payment, the last being in twelve months from the date of the agreement.) “ The said John Haak reserves the right from said car until fully paid, but the said B. E. Palm shall have the use of said car from this date; should the said B. E. Palm fail to comply with this agreement the said John Haak shall have a right to take the said car from the said B. F. Palm as his property and the said B. F. Palm will forfeit the amount paid on said agreement.”</p> <p>The plaintiff proved on the trial that but $150 had been paid by Palm on account of the car.</p> <p>The defendants then gave in evidence a judgment recovered by them, April 9 th 1869, against Palm, for $384.27, a fi. fa!, issued April 10th, and levy on the car in possession of Palm. He called Palm, who testified that Haak’s name was on the car when the agreement was entered into and about a year afterwards he had his own name put on it. On cross-examination the plaintiff asked the witness:</p> <p>“ Why did you have your name put upon the car; [and if at the time did you not know that you had only a use of the car and that you were not the owner until you had complied with the terms of the agreement?”]</p> <p>The defendants objected to that part of the question in brackets, the objection was sustained, and a bill of exceptions sealed. The witness answered that he had his name put on, because it was ( objected in Philadelphia, that it would be mis-sent.</p> <p>The court charged the jury: “You are instructed that the agreement between the plaintiff and B. F. Palm is a conditional sale and a fraud upon the creditors of defendant on the execution : it is therefore your duty to render a verdict in favor of the defendants.”</p> <p>The verdict was for the defendants.</p> <p>The plaintiff took out a writ of error, and assigned for error the charge of the court and ruling as to the evidence.</p>