Volume 65 — Pennsylvania State Reports

17. This was an action of assumpsit, brought to December Term 1868, by The First Presbyterian Church and Congregation of Pottsville against Thomas M. Russell, to recover money which it was alleged the plaintiff had received as treasurer of the plaintiffs, and which he declined to pay over.

In the matter of James Brennan’s Estate: Of January Term 1870. The decedent died intestate October 27th 1865, leaving a widow, Catharine Brennan (since intermarried with John Divinney), and four collateral next of kin, but no children. Administration of his estate was granted to William Yerner, who, on the 9th of April 1867, filed an account showing in his hands a balance of $4737.63.

<p>1. There is no bill of exceptions nor appeal to the decision of a lower court in a contested election, and the Supreme Court has no jurisdiction over the subject.</p> <p>2. A certiorari brings up the record only.</p> <p>3. Under a certiorari the merits cannot be reviewed, they belong exclusively to the court below.</p> <p>4. Under a certiorari to the decision of the court below in a contested election case, the report of examiners, calculations of the court, &c., are excluded in the Supreme Court.</p> <p>5. An Act of Assembly requires that petitioners contesting an election should make affidavit that the statements were “true.” An affidavit that they were “ true to the best of their knowledge and belief” is sufficient.</p> <p>6. The Act of Assembly is remedial, and is to be construed to advance the remedy.</p> <p>7. The special purpose of the oath is to initiate the remedy and give it the impress of good faith and probable cause.</p> <p>8. The jurisdiction of the lower court being exclusive and final in an election case, it must decide for itself what form of oath gives it jurisdiction.</p> <p>9. An affidavit may be taken before the recorder of the city of Philadelphia.</p> <p>10. The petition of an undue election is simply a complaint to initiate inquiry.</p> <p>11. A statute required that the “ court shall hear and determine such contested election at the next term after the election shall have been held.” Held, that this was directory merely, the act to be done being judicial.</p> <p>12. The Quarter Sessions may authorize the testimony in contesting the election of district attorney, to be taken by examiners out of its presence.</p> <p>13. After an election case had been heard and decree made ousting the incumbent, the court properly allowed the contestants to amend their petition nunc pro time by adding another specification.</p> <p>14. The power of amendment is within the discretion of the court and cannot be revised.</p> <p>15. The refusal to quash a petition in an election case is not a ground of error.</p> <p>16. In the Supreme Court, the only inquix-y is, whether the petition is sufficient in its frame and sets forth a proper ground of complaint.</p> <p>17. The rule as to pleadings in election cases must not be held so strictly as to protect fx-aud, nor so loosely as to permit the acts of sworn officers to be inquired into without adequate and well defined cause.</p> <p>18. A prayer in the petition in an election case was to “strike out” eei'tain returns. This prayer did not vitiate the chax-ge of an undue election and false return.</p> <p>19. The prayer to strike out is not part of the chax-ge in the complaint.</p> <p>20. There being other grounds of complaint, the presumption is that the coux-t disregarded the px-ayer to strike out, if that was illegal.</p> <p>21. Where there are contradictox-y averments, the proper practice is to move to strike out the contradictory pax't.</p> <p>22. The maxims, Lex non intendit aliquid impossibile. Lex nil facit frustra; nil jubet frustra. Ut res magis valeat, quam pereat. Omnemajus eontinet in se minus. Omnia preesumuntur legitime facto, donee probetur in eontrarium, applied.</p> <p>23. Chase v. Miller, 5 Wright 412; Mann v. Cassidy, 1 Brewster 26, considered.</p>

<p>1. 'A writ of error in a criminal case with consent of the attorney-general, under the 33d sect, of the Act of March 31st 1860 (Criminal Procedure), applies only to common-law writs of error.</p> <p>2. At common law no bills of exception were permitted in criminal cases; nor did the evidence, rulings and opinion of the court form any part of the record.</p> <p>3. The 57th, 58th, 59th and 60th sections of the Criminal Procedure Act construed.</p> <p>4. The limitation in these sections to thirty days, is incompatible with the issuing of a writ of error with the consent of the attorney-general at any time afterwards.</p> <p>5. The Act of February 15th 1870, allowing writs of error in murder, &e., as in civil cases, applies only to future writs of error and those pending at the passage of the law.</p> <p>6. A writ of error was issued on a conviction for murder; the judgment was affirmed February 14th; this writ of error was not pending under the Act of February 15th, although the act had previously been passed by the legislature and passed over the governor’s veto on the 15th.</p> <p>7. A judgment of affirmance by the Supreme Court can be opened only where the court has committed a mistake, which justice requires should be rectified.'</p> <p>8. The Act of 1870 provides no means to take, preserve and bring up the evidence.</p> <p>9. Act of 1870 construed.</p> <p>10. Middleton v. Commonwealth, 2 Watts 285; Commonwealth v. Mayloy, 7 P. F. Smith, recognised.</p>

156. This was an action of assumpsit brought, November 2d 1867, by P. H. Curran against Joseph H. Hildeburn and Henry M. Hildeburn, trading as Hildeburn & Brother.

■ Appeal from Nisi Prius: In Equity: No. 30, to January Term 1865. The bill in this ease was filed, December 80th 1864, by George N. Tatham, Henry B. Tatham and William P. Tatham, against George T. Lewis and Andrew P. Wilson, and Andrew M. Jones and others, administrators, &e., of William J. Taylor, deceased.

Charles Taylor, assignee of George Cookman, holder of a mortgage for $10,000, executed’ by John W. Lindsay, dated April 3d 1858, recovered judgment, September 29th J869, upon a sci. fa. issued on said mortgage, in the Common Pleas of Delaware county, against Lindsay, with notice to terre-tenants. The realty mortgaged was a tract of land of 142 acres.

<p>' 1. Under the 23d section of Act of June 16th 1836 (Mechanics’ Lien), the owner of the building is the actor, and is entitled to a trial to determine whether his property shall remain charged with the claim.</p> <p>2. An owner asked the court for an order on the claimant to proceed; the order was made, the claimant then moved to strike off his lien which was denied. Held, that the refusal was discretionary and that the case was still pending without a final judgment, and a certiorari from the Supreme Court was quashed.</p>

<p>This was a quo warranto to the Hon. John N. Conyngham. The suggestion was filed, December 8d 1869, by the Attorney-General, setting forth that the respondent was exercising the office of Recorder of the Mayor’s Court of the city of Scranton, in the county of Luzerne, without lawful authority, and the writ was to show by what warrant he exercised the office. >¡</p> <p>The answer, admitting that the respondent exercised the office, set forth as follows: That he had been elected and duly commissioned, on the 21st of November 1861, president judge of the 11th Judicial District, composed of the county of Luzerne, for ten years, from the first Monday of December then next; that he then entered upon the duties of that office and has continued to exercise them since; and that the residents of Scranton, being citizens of Luzerne county, voted at the election for president judge in 1861; that by an Act of Assembly, passed April 23d 1866, the inhabitants of certain territorial limits in Luzerne county were constituted “ The City of Scranton,” which in June following was duly organized, and has since continued to be a municipal corporation; that by the said act, a mayor’s court was constituted, to be held by the mayor or recorder and aldermen of the city, for the trial of crimes, &c., and it was provided that the recorder should preside at all jury trials; that certain civil jurisdiction was also conferred upon the court, and proceedings on the civil side might be conducted by the recorder alone; that it was further provided by the act that the president judge of the 11th Judicial District should be recorder of said city. The answer averred that at the time of the organization of the city of Scranton the respondent was president judge of the 11th Judicial District, and was duly sworn to fulfil the duties of recorder of that city, entered upon the office, and has since continued to perform its duties, and claims the right to perform them.</p> <p>The Commonwealth craved oyer of the Act of April 23d 1866, which was granted.</p> <p>(The material parts of the act will be found in C. J. Thompson’s opinion.)</p> <p>The Attorney-General demurred to the answer. The causes of demurrer were:—</p> <p>1. Because the Act of April 23d 1866 is unconstitutional, being repugnant to that part of the 11th section of 5th Article of the Constitution of Pennsylvania, which provides that “ The judges of the Supreme Court, of the several Courts of Common Pleas, and of such other courts of record as are or shall be established by law, shall be elected by the qualified electors of the Commonwealth in the manner following, to wit: The judges of the Supreme Court by the qualified electors of the Commonwealth at large; the president judges of the several Courts of Common Pleas, and of such other courts of record as are or shall be established by law, and all other judges required to be learned in the law, by the qualified electors of the respective districts over which they are to preside or act as judges.”</p> <p>2. Because it is not averred that the said respondent was elected to the said .office of recorder of the Mayor’s Court of Scranton by the qualified electors of the city of Scranton.</p> <p>3. Because it is not averred that the- said respondent was, at the time of his said election to the office of president judge of the 11th Judicial District, or that he since hath been or- now is, a resident “within the.district” of the city of Scranton.</p>

372, to January Term 1870. In the court below, on the 11th of November 1869, C. & J. L. Robinson brought an action of assumpsit against Robert C. Cox, William F. Wiseman and William Narber. On the 6th of December 1869, the plaintiffs took judgment for want of an affidavit of defence for f 1012.37. An execution was issued December 28th. On the 4th of January 1870, Narber claimed a stay of execution as a freeholder, on which a rule to show cause was granted.

15. This was an ejectment, commenced November 17th 1855, by Emma J. Smith (now Hewitt) against Samuel Kellum and William Cowell, for a strip of land on the west side of the Susquehanna, about 245 rods in length, about 16 feet in width at the river and about 4 feet at the other end, containing about 4 acres.

72, to January Term 1870. This was an action of ejectment, brought March 23d 1867, by R. H. Sackett against Henry Spencer for a tract of about 114 acres of land. The question in the case was whether the land in dispute belonged to the defendant or to one Thomas Forman, as whose property the plaintiff had purchased it at sheriff’s sale.

413, of January Term 1870: In the distribution of' the estate of John Young, deceased. The decedent died in August 1865. William H. Newhard, his executor, having settled his account, Thomas B. Metzgar, Esq., was appointed auditor to make distribution. Sarah Young, the widow of the decedent, claimed to receive from the estate the sum of $3047.75, her share of the estate of her father, John A. Wieder, deceased, which she alleged her husband, John Young, had received.

362, to January Term 1870. This was an action of debt, commenced February 4th 1868, by Granville S. P. Stillman against Samuel Wetherill, Alve E. Laing and Howard E. Laing. Wetherill only was summoned. The cause of action was a judgment against the defendants in favor of the plaintiff,, in . the Court of Common Pleas of the city and county of New York. On the 16th of April 1868 the plaintiff filed a certified copy of the record in the suit in New York.

79, to January Term 1870. This was an action of assumpsit by The Allentown Bank against The Dimes Savings Institution, commenced August 3d 1861. The suit was for a balance of $524.64, an amount alleged to be overdrawn by the defendants in their account with the plaintiffs December 10th 1860. The defendants alleged that they should have been credited with the proceeds of $487 in coin, delivered on that day to' the plaintiffs.

150, of January Term 1870. This was an attachment execution, issued December 2d 1865, by John L. Hoffman and William H. Hoffman, trading as J. L. & W. H. Hoffman, against Abraham Diefenderfer, in which Edward H. Knerr was garnishee. The judgment of the plaintiffs against Diefenderfer was for $378.33, recovered February 16th 1863. The garnishee pleaded “ nulla Iona.” ■ The plaintiffs offered Diefenderfer as a witness; he was objected to on the ground of interest.

210, to January Term 1870. This was an action of covenant on a ground-rent deed by Samuel Spackman against Reuben Ott, commenced August 5th 1865. The case was tried before Pierce, J., a verdict found for the plaintiff, and a new trial granted, which was tried, October 11th 1869, before Allison, P. J. On the 1st of November 1847, Joseph Ripka conveyed to the defendant certain real estate reserving a ground-rent of $80 per annum.

199, to July Term 1869. This was an action on the case by William Winpenny and William Ohedester against The City of Philadelphia, brought to March Term 1868. The cause of action was the negligence of the defendants in permitting the navigation of the river Schuylkill to be obstructed by a sunken barge, against which the plaintiff's tug-boat struck and was injured.

Appeals from the decree of the Orphans’ Court of Monroe county, in Adam Hufsmith’s Estate: Nos. 243, 244, 245, 246, to January Term 1870. Adam Hufsmith being the owner of a large quantity of real estate, in 1817 entered into articles of agreement for the sale of separate tracts to each of his three sons Adam, Peter and Jacob, for sums named in the articles.

’■ This Was a scire facias sur municipal claim by the City of Phila-Jdelphia, to the use of Charles E. Jenkins and Jonathan Taylor, Against Barnabas Hammett, issued July 18th 1868.

441, to January Term 1869. The property of Shank was levied on by virtue of six writs of fieri facias, returnable to the September Term (14th) 1868. One of these writs was at the suit of William A. Simpson, issued August 22d 1868, on a judgment for $1079.78, obtained that day on an award of arbitrators. The amount made under the executions and paid into court was $913.88. On the 21st of September 1868, Charles Wilkinson issued an execution against Shank for $393.69.

<p>1. The property of a husband- is not to be covered up or withheld from creditors, upon equivocal, suspicious, or doubtful evidence of the wife’s right to it.</p> <p>2. A plain and satisfactory case must be made out before the wife can hold property against creditors.</p> <p>3. A parol marriage settlement of personalty is not ipso facto void.</p> <p>4. Circumstances in this case which required the question of wife's ownership to go to the jury.</p> <p>5. Tripner v. Abrahams, 11 Wright 228; Flick v. Devries, 14 Id. 266, approved.</p>

381, to January Term 1870. The bill in this case was filed, April 28th 1870, by Martha Parish, guardian of Ida E. Parish and Lester Parish, minor children and heirs of Lester Parish. The bill averred:— 1, 2 and 3.

<p>1. Lloyd, sold Young standing timber on No. 5821, having previously pointed out the lines. Some of the timber cut by Young according to this line, proved to be on 5822, owned by Herdic. Young drove the logs to Williamsport. In a replevin by Ilerdic, Young gave a property-bond and retained the logs. Herdic recovered the value of the logs at Williamsport less the cost of cutting and driving them there. In an action by Lloyd for logs cut on his land, Young could set off only the costs in the replevin.</p> <p>2. Young could not set off the profit he could have made on the logs.</p> <p>3. A contract to deliver growing timber trees on the land, to be cut and taken away by the purchaser, has not in view the price at a distant market,</p>

<p>1. The Pennsylvania Eailroad Oo. leased the road of the Philadelphia and Erie Eailroad Co., with all their rights, powers, privileges, &c., the lessees in using the lessor’s road were not subject to the charges fixed by their own charter as to toll, but to the regulations in the charter of the lessors.</p> <p>2. By a lease a corporation as well as a natural person would succeed to all the rights, &c., and be subjeot to all the limitations, &e., imposed on the lessor.</p> <p>3. The lessee is the assignee for a term or period of the lessor; his bailiff to hold the possession for him.</p> <p>4. The limitations as well as the privileges in the charter have exclusive reference to the road the company was authorized to construct.</p> <p>5. The legislature in authorizing another corporation to take a lease, by necessary implication confer the rights of the lessor on the lessee.</p> <p>6. Toll is the consideration for the use of a road or bridge, not compensation for carriage over it.</p> <p>7. The rules of court as to assignment of errors must be complied with.</p> <p>8. Gratz v. Pennsylvania Railroad, 5 Wright 447, Boyle v. Philadelphia and Reading Railroad, 4 P. F. Smith 310, remarked on.</p>

<p>1. In an action of trespass for cutting timber, its value was to be ascertained by the price of such timber in the vicinity, not by evidence of the net value in a distant market.</p> <p>2. Proof in this case of contents of a lost paper not sufficient.</p> <p>3. J. by power of attorney authorized O. to sell lands; this did not authorize C. to substitute an attorney under him.</p> <p>4. O. substituted L., who made a contract for the sale of timber on the land reciting a former contract. L.’s contract was not admissible as evidence of the first contract.</p> <p>5. In an action of trespass by J. for cutting timber, evidence by the defendants who defended under authority from 0., that J. had said to another person that he had authorized O. to sell timber was admissible.</p> <p>6. An agreement by O. as attorney for J. selling timber to L. was found amongst J.'s papers after his death, endorsed “not executed.” Held, not to be evidence of C.’s authority to sell.</p> <p>7. Hazleton Coal Co. v. Buck Mountain Coal Co., 7 P. F. Smith 301; Pattison's Appeal, 11 Id. 294, remarked on.</p>

<p>1. Henry died leaving a widow and children, two of whom were minors. The widow and adults agreed to sell to Parshall the administrator oil land of decedent for $7000, the vendors “on or before the 1st of July each to receive the legal portion of said sum as heirs to the same, then this contract to be of full force and virtue otherwise to be void and of no effect;” the vendors at the same time gave the administrator a power of attorney to sell. Held, that time was of the essence of the contract,</p> <p>2. Parshall, without paying the vendors, having sold for a larger sum after July 1st, was bound to account to them for the larger sum.</p> <p>S. Parshall was brother of the widow and uncle of the children. He stood in such relation of confidence to them, as required him to show affirmatively, that his conduct had been perfectly fair and open and that the demand for the property in the market was communicated to them.</p> <p>4. Having failed to pay the $7000 at the day or to procure an extension of time, he was no longer vendee but administrator and agent, acting in the sale by him for the estate.</p> <p>5. After the sale by Parshall, in order to perfect the title he procured a sale of the land to his vendee under a judgment which was against the decedent, and under an agreement that whatever his vendee should give at sheriff's sale should be credited on the contract price. Held, that Parshall might be charged in his administration account with the whole sum received by him as if it had been paid to the sheriff, and the balance after paying heirs had been paid to him as administrator.</p> <p>,. 6. The heirs could not be put to their common-law action against him.</p> <p>7. _ The doctrine of Fisk v. Sarber, 6 W. & S. 18, does not apply where the judicial sale is brought about by the trustee.</p> <p>8. A trustee or agent making a private sale and arranging that his vendee shall become the purchaser at a judicial sale, must answer to his cestui que trust for the amount actually received.</p> <p>9. The heirs gave receipts for their proportion of the $7000, as on the contract. Held, that they were not estopped unless the facts were fully communicated to them.</p> <p>10. Parshall sold land of his own and the decedents’ as a whole for a gross sum, and received $2000 of the purchase-money in stock. Held, that he was not chargeable with the highest price of the stock, but with the sum only for which it had been received.</p> <p>11. If the entire purchase-money had belonged to the estate, Parshall would have been liable for all he could have made by the sale of the stock.</p> <p>12. Where a trustee receives a sum in gross to part of which he is entitled individually and accepts stock or securities in his own name in part payment, it is an unequivocal indication that they are taken for the part which is his own.</p> <p>13. He cannot require his cestui que trust to receive any part of such stock or securities.</p>

<p>1. B. being the owner of warrant 4886, at the request of P., a surveyor, employed him to locate it, by mistake P. located it on 4883 adjoining, and laid out farm lots and roads. P. afterwards, in ignorance of his mistake, bought 4883. B. sold farms on the location, which were settled and improved. P. sold 4883, his vendees knowing of the improvements and seeing others made, but not knowing that they were on 4883. Held, that the vendees were not estopped to claim 4883.</p> <p>2. Silence will estop only where it is a fraud; it is different as to positive acts.</p> <p>3. Millingar v. Sorg, 5 P. F. Smith 216, s. c. 11 Id. 471, compared and distinguished.</p>

<p>1. An act created a corporation with authority to “ clear out, improve and use Bennett’s Branch” (a highway), to use dams erected and “ erect new dams,” and “ may use all and each of said dams and the waters of said stream in the floating of saw-logs down the same, and generally shall and may have the right to straighten, deepen, crib and widen the channel of the stream aforesaid in such manner as they see fit for the purposes aforesaid.” It fixed a rate of tolls for those using the stream, &c. Held, that the improvement was for the use of the public as a highway and the act was constitutional.</p> <p>2. Discriminating between parties as to the use of the stream would be a violation of the charter.</p> <p>3. A misuse of the privileges of the company for private purposes would not turn it into a private corporation.</p> <p>4. The company having authority to improve the stream, would not lose its franchises because the improvement was not in fact beneficial.</p> <p>5. The right to impose toll as a consideration for an enterprise for the benefit of the public, is a right of government.</p> <p>6. Individual inconveniences must yield to the wants of the whole public,</p> <p>7. The act authorized the taking of toll for timber floated “ across” the stream, this did not mean only from one side to the other.</p> <p>8. An act authorized the company in default of payment of toll “ to seize, and sell at public sale, at any point they may select within this Commonwealth, enough of the logs, so floated, to pay the tolls due," &c. Timber owners floated logs through the stream into a boom without paying the toll. The logs were mingled in the boom with an immense amount of other logs of the owners and others. The company advertised a portion of them to be sold for tolls at a place distant from the boom where they could not be brought for inspection. Held, that the company were properly restrained from making such sale.</p> <p>9. Klopp v. Witmoyer, 7 Wright 219, recognised.</p>

<p>1. In an action of tort, the defendants may defend as being agents of a corporation and doing nothing outside of the duties of their employment.</p> <p>2. A servant can justify doing any act which his master had a right to do.</p> <p>3. A corporation were authorized to improve a stream, in an injury done by their servants in what the corporation had authority to do, there was no privity by law or contract between the servants and the injured party.</p> <p>4. Consequential damages are not recoverable from an improvement corporation, except when expressly given and on the terms on which they are allowed.</p> <p>5. An improvement company was required to file a bond, “ in a sum sufficient to indemnify all persons holding property on said stream for any loss they may sustain by reason of said improvement.” Persons injured are to proceed by a common-law procedure to recover damages, and in case of nonpayment recourse is to be had to the bond.</p> <p>6. The Act of April 24th 1864, incorporating the Bennett’s Branch Improvement Company, gives the company unlimited authority in the stream on condition of paying the damages outside of it.</p> <p>7. There is no default in the company in not paying damages before they are demanded, nor then if they are unreasonable.</p> <p>8. The plaintiffs assisted the company in building the dam complained of, which was not on his land. He was not estopped from claiming damages.</p>

<p>1. A voluntary assignment for the benefit of creditors does not depend for its validity on any statute.</p> <p>2. The acts to regulate such assignments are no part of the insolvent laws.</p> <p>3. Such assignments are not contrary to the spirit of the Bankrupt Law.</p> <p>4. No acts of an assignor after the assignment can invalidate it or be evidence from which fraud in fact can be inferred.</p> <p>5. If a conveyance is not fraudulent when made, it cannot be made fraudulent by any matter ex post facto.</p>

<p>1. The doctrine that the Orphans’ Court is a court of equity, means that in the exercise of its limited jurisdiction, conferred entirely by statute, it applies the rules and principles of equity.</p> <p>2. The Orphans’ Court has no authority to make a decree on a hill praying for a declaration of the rights of parties under a will.</p> <p>3. Such decree would not be binding on any of the parties.</p> <p>4. Consent cannot give jurisdiction.</p>

<p>1. A railroad company leased a lot for making side tracks from its main road to a canal basin and for unloading and piling lumber. Tbe company had the right to use it as most convenient, for moving its cars.</p> <p>2. The company had the right to detach cars and send them on without a brakesman, out of sight and around a curve.</p> <p>3. This would be different when by license to others and by sufferance, they permitted the public to enjoy a privilege of passage which would bring them into danger.</p> <p>4. Duties grow out of circumstances and what in one case would be a proper use of one’s rights, may by change of circumstances, become negligence.</p> <p>5. Culpable negligence is the omission to do that which a reasonable, prudent and honest man would do; or doing that which such a man would not do in the circumstances of the particular case.</p> <p>6. If an owner has allowed persons a use of his property, tending to produce a belief that it will not be objected to and therefore to act on the belief, he is held to exercise his rights in this view, so as not to mislead others, without warning them of his intention to recall his permission.</p> <p>7. Notice is required to a man who acts bonit fide; not to him who wilfully uses that to which he pretends no title.</p> <p>8. Persons who use their property so as to hold forth an invitation to enter, give license to do so, e. g., innkeepers, merchants, &e.</p> <p>9. Trespass will become right by sufferance and lapse of time. .</p> <p>10. Parol license and expenditure will estop without lapse of time.</p> <p>11. The company allowed the neighboring population to use its tracks as a way across their lot. Presumption of a clear track could not arise as in other parts of their road.</p> <p>12. Greater precaution was necessary under these circumstances than on other parts of the road.</p> <p>13. The agents of the company detached a car and permitted it to run down grade without a brakesman on tracks through the lot. Held, that this was negligence.</p> <p>14. Negligence is a mixed question of law and fact and the facts can be found only by the jury.</p> <p>15. When the injury to a child incapable of knowing and avoiding danger is caused, by actual negligence, its incapacity shields the child from responsibility.</p> <p>16. if there be no negligence, the incapacity of the child creates no liability on the company.</p> <p>17. When a child is placed in danger by the positive act of its guardian, this is contributory negligence.</p> <p>18. The Act of April 4th 1868 (restricting damages for negligence) is retrospective, and is inoperative on cases occurring before its passage.</p> <p>19. The effect of the act as to cases after its passage not decided.</p> <p>20. Railroad Co. v. Hummel, 8 Wright 375, Gillis v. Railroad, 9 P. F. Smith 129, examined and distinguished.</p> <p>21. Railroad Co. v. Spearin, 11 Wright 304, Smith v. O'Connor, 12 Id. 218, remarked on.</p>

<p>1. A railroad company executed a mortgage of all its real property, franchises, &e., under a decree of the Supreme Court the mortgaged property was sold and conveyed by the trustees in the mortgage to Whelen. This was effectual to Whelen at least as an assignment of the mortgage.</p> <p>2. From that time Whelen and his assignees stood in the shoes of the mortgagee.</p> <p>3. A mortgagee may maintain ejectment for the mortgaged property before condition broken unless there be a stipulation to the contrary.</p> <p>4. A railroad with its appertenances necessary to the exercise of its franchises cannot be levied on and sold under a judgment against the corporation.</p> <p>5. A company were authorized to hold so much land not above five acres in any one place and improvements necessary for water stations, &c. They purchased land which was not used for the road, and mortgaged all their property and franchises, with the right to maintain possession “ according to the effect and meaning” of the acts of incorporation. The land purchased was not included in the mortgage.</p> <p>6. If a mortgagee proceed by scire facias in a court having no jurisdiction, a purchaser having paid his money under such proceedings, would be entitled to be subrogated to the mortgage.</p> <p>7. If a mortgage create a trust and provide that a power of sale is to be executed by the trustee on certain contingencies, he may be controlled, &c., by a court of equity at the suit of a cestui que trust, and when that court decides that the contingency has arisen to give it jurisdiction, its decision cannot be impeached collaterally.</p> <p>8. Those becoming encumbrancers pendente lite, on a mortgage, are not necessary parties to a bill to foreclose.</p> <p>9. Such persons are bound by the decree, for they can claim nothing but what belonged to the person under whom they assert title.</p> <p>10. A corporation purchased land ultra vires, mortgaged all its property, franchises, &c., in trust to secure bonds; a judgment was afterwards recovered; all the property, &c., of the corporation was afterwards sold by the trustee under a decree in equity and afterwards the land was sold under the judgment; the purchaser under the judgment took no title.</p> <p>11. The legislature after the decree of sale in equity, passed a law to carry the decree into effect. Held, that this cured any defect in the jurisdiction of the court.</p> <p>12. No one could object to the decree and sale but the mortgagors and the bondholders.</p> <p>13. Bradley v. Chester Talley Railroad, 12 Casey 141, remarked on.</p>

209, to January Term 1870. This was an action on the case, by August Koch against The Williamsport Water Company, commenced July 31st 1862.

<p>1. By the Act of April 11th. 1862, the Supreme Court in equity may decree a sale under a corporation mortgage.</p> <p>2. The act is constitutional, falling within the express terms of art. 1, g 6 of the Constitution.</p> <p>3. It is no objection that the act was passed after the date of a mortgage, it only provides a new remedy.</p> <p>4. An act authorized a railroad company having power, &c., under the general railroad law of 1849 to execute a mortgage on their iands, franchises, &e. A mortgage executed to a trustee under the authority of the directors alone was valid.</p> <p>5. Bonds were issued under the mortgage, sold, interest paid on them, were recognised by a sequestrator, and received dividends of the funds in his hands, &e. This was a ratification of the mortgage.</p> <p>6. The mortgage was duly executed, acknowledged and recorded, and the corporation treated it as existing; this was sufficient evidence of its delivery, although never in the manual possession of the trustee.</p> <p>7. A holder of bonds as collateral may press a sale of such mortgage.</p>

<p>1. On a hearing before auditors in the distribution of a decedent’s estate, a creditor was admitted, under obj ection, to testify, there was evidence from other witnesses in support of his claim. Held, that the exception to his admission was fruitless, unless it were shown that his testimony led the auditors into some specific error.</p> <p>2. Such testimony would not have the same effect as if it had been in a common-law action; it would affect only when it might mislead or be the only testimony on the subject in dispute.</p> <p>3. Items sustained only by such testimony might be stricken out, but the balance of the account would be sustained, if the evidence supported it.</p> <p>4. The accountant was not a competent witness under the Act of 1869.</p> <p>5. Quaere, whether the accountant was competent under the 56th section of Act of March 29th 1832, authorizing auditors to examine accountants.</p> <p>6. It seems that a party is to be admitted only under the mandate of the creditors and cannot offer himself as a witness.</p> <p>7. Mylin’s Estate, 7 Watts 64, recognised.</p>

<p>1. When an agreement to refer is made in an action pending in court and is confined to matters pending in that action, it is under the 6th section of the Act of June 16th 1836 (Arbitration).</p> <p>2. This section is a re-enactment of the Act of 1705; no express agreement that the submission shall be a rule of court is necessary.</p> <p>3. Without payment of costs a suit cannot be discontinued.</p> <p>4. An agreement in a pending suit was: “ It being desired by the parties in the above case that the same shall proceed no further in course of law, they hereby mutually agree, by and between themselves, to refer all matters relating thereto at variance between them to the decision and adjustment of three disinterested persons, whose report and action Bhall be final; and in whose decision the said parties hereby mutually pledge their honor as men to abide.” The award under the agreement was a sufficient foundation for a judgment, but required the approval of the court.</p> <p>5. The award was filed and judgment entered on the judgment index without the approval of the court, this was a clerical error and a nullity.</p> <p>6. The award was afterwards approved and judgment directed to he entered; this was a final judgment.</p> <p>7. The neglect of the prothonotary to enter -it did- not affect its validity as a judgment between the parties, although it might endanger the lien as to third persons.</p> <p>8. Benjamin v. Benjamin, 5 W. & S. 562, Wall v. Fife, 1 Wright 394, Brendlinger v. Yeagley, 3 P. F. Smith 464, distinguished.</p>

<p>1. Administrators sold real estate of the decedent, and took a note under seal for the purchase-money in their individual names, one of the administrators transferred the note to pay his private debt. Held, that the transferee took it subject to the trust for the estate of the decedent and derived no beneficial interest in it.</p> <p>2. The obligor paid the other administrator. Held, that the payment was correct.</p>

<p>Appeal from the decree of the Court of Common Pleas of Lancaster county: No. 87, to May Term 1870.</p> <p>In the distribution of the proceeds of the sheriff’s sale of the real estate of Hiram L. Thompson.</p> <p>Tilghman Thompson died intestate, January 14th 1864, seised of real estate, which was sold, October 29th 1864, to Hiram L. Thompson, under an order of the Orphans’ Court for the payment of debts, for $2300. This sum was more than sufficient to pay the debts, and $369.85, one-third of the balance, was secured on the land for the life of the widow, the interest to be paid to her annually. On the 1st of April 1868, Thompson executed a mortgage on the land for $1000 to Greorge Withers. On the 1st of May 1868, John D. Senseman recovered a judgment against Thompson for $500. Under this judgment the land was sold, June 12th 1869, to Benjamin Wertz, for $610, there being due at that time to the widow four years’ interest, amounting to $88.76. After deducting costs, $539.76 were brought into court. The matter was referred to N. E. Slaymaker, Esq., as auditor for distribution. He reported that neither the arrears on the widow’s charge nor the mortgage were to be paid out of the proceeds of sale, and awarded the whole to Senseman, the judgment-creditor.</p> <p>The Court of Common Pleas confirmed the report, and awarded the fund to Senseman. The result thus being that Wertz took the land subject to the arrears of interest to the widow and the mortgage of Withers.</p> <p>Wertz appealed to the Supreme Court, and assigned the decree of the court below for error. ' ¡</p>

<p>1. The court below discharged a rule to strike off the entry of a verdict, on the ground that the court had refused to allow the jury to be polled. Depositions were taken in the court below, but the record did not show that any demand for a poll had been made. Held, that it was not reviewable on error.</p> <p>2. It seems, that in civil cases allowing a jury to be polled is discretionary with the court trying the case.</p> <p>3. A jury found for the plaintiff “ $45, and to deliver said note to the defendant,” each party to pay “his witness-costs” and “half the county costs.” The court directed the verdict to be entered for the plaintiff for “ $45 and six cents costs.” Held, not to be error.</p> <p>4. The court had a right to mould the verdict according to law.</p>

<p>1. In construing a statute the plain common-sense interpretation of the words should be adhered to, rather than to apply refined technical rules of grammar.</p> <p>2. The 22d section of Act of March 15th 1832 (Administration), applies not only to the case of a joint administration with a widow, but also where there i^ no widow or she renounces.</p> <p>3. “ Always” in the act means “ in all cases.”</p> <p>4. Punctuation in a statute should not rule.'</p> <p>5. Coverture does not incapacitate for administration; administration should be granted to a feme covert, if she be next of kin.</p> <p>6. The assent of the husband is necessary to the grant of administration to his wife.</p> <p>7. The assent will be evidenced by his joining in the administration-bond.</p> <p>8. If he refuses the register may withhold letters from the wife, unless in case of his absence or incompetency; then a stranger may take his place in the bond.</p>

76, to May Term 1870. In Michael Bard’s Estate. The decedent died on the 11th of May 1865, leaving a widow, three daughters and two sons, Jefferson S. Bard, aged then about twenty years, and William M. Bard, aged about thirteen years. John R. Sandoe was appointed guardian of William.

<p>1. A testator devised bis mansion farm to W., he directed his executors to purchase a farm of equal value with the mansion for J., and in case “ the funds in hand” were deficient, provision was to be made by the sale of other real estate named. He devised a tavern to W. and J. jointly at the death of his widow. The funds appropriated were insufficient to buy J.’s farm, and the Supreme Court directed the deficiency should be made up by a charge on the mansion farm. The other real estate devised to J. and W. was sold under the Price Act. Held, that the Orphans’ Court properly appropriated "W.’s share in that for J.’s deficiency instead of charging the mansion farm.</p> <p>2. The rents of the tavern were to be received by the executors during the widow’s life, and were to fall into the residue which was to go to the five children “ after all the .foregoing bequests are carried out.” She refused to take under the will. Meld, that as by the terms of the will the rents could not accomplish the immediate purchase of J.’s farm; the trust in the executors after the sale had no purpose to serve and was at an end. Meld, also, that principal and interest being appliéable to the same object the principal might at once be so applied.</p>

<p>1. The contents of a deed lost, destroyed or suppressed may be established by parol evidence in ejectment, when its existence has first been proved.</p> <p>2. The effect of such proof is as strong in sustaining the title of the grantee as if the deed had been presented.</p> <p>3. All competent evidence for such purpose should be received, whether in logical sequence or not; especially if offered to be followed, by what would make out a complete case.</p> <p>4. When the testimony is in, the judge should inform the jury what is to be extracted from the body of it, in order to make out a good and solid case in law and what would be the effect of a failure.</p> <p>5. Some proof being given of a conveyance the acts and declarations of the grantor in accordance with it are evidence.</p> <p>6. Proof that a grantor requested a scrivener to draw a deed for certain land; that such deed had been prepared and given to the grantor; that he afterwards showed it signed by him and witnessed by one witness, with a magistrate’s certificate of acknowledgment; that he requested the person to whom he showed it to witness, which he did, was in the absence of countervailing evidence, prim& facie evidence of the execution of a lost deed including delivery.</p> <p>7. In such case the onus to prove non-delivery would be on those resisting the deed.</p> <p>8. Evidence admissible in odium spoliatoris.</p> <p>9. If the jury be convinced of the spoliation, it is their duty to infer everything in favor of the deed and against the spoiler.</p> <p>10. The existence of a lost deed requires clear and full proof.</p> <p>11. In an ejectment by a daughter grounded on a lost deed of gift from her deceased father, she and her husband would be witnesses as to what occurred since but not before his death, under the Act of April 9th 1870.</p>

15, to May Term 1870. This was an action of assumpsit to April Term 1866, brought by John Montgomery and John A. Brough, trading as Montgomery & Brough, against Emanuel Sheffer. The plaintiffs did business in Chambersburg, Pennsylvania, and sent a quantity of wheat for sale to E. A. Frick & Co., commission merchants in Baltimore.

39, to May Term 1870. On the 13th of September 1856, Henry, Sites issued an attachment execution on a judgment for $800 in his favor against Jacob Bancord. The sheriff was directed to levy the attachment on debts, &c., in the hands of E. Emerson and others. The sheriff returned that he had served the writ on the garnishees. It did not appear that the defendant had been served. Bancord was one of the heirs of Jacob Bancord, Sr., deceased.

<p>1. In a question of advancement before an auditor, one of the parties resisted the admission of a book as the “ family book.” On an issue to try whether this was the “ family book,” the same party offered the book in evidence. Meld, that he was not estopped on account of objecting to it before the auditor.</p> <p>2. Declarations of a parent contemporaneous with entries of advancements made in his book are evidence.</p> <p>3. Declarations of a parent to change a debt into an advancement are not admissible.</p> <p>4. Things shown once to have existed are presumed to continue in the same state till the contrary be established.</p> <p>5. Where a parent has made large advancements, the presumption is that he continued to intend that on his death intestate they should be brought into the account to divide his estate equally.</p> <p>6. Entries of advancements were made in a parent’s book, an inquest found that he had been lunatic five years before the finding. When the book came into his committee’s hands, the entries were found to be cancelled. There was no presumption of law, as to whether, the cancellation had been made before or after the lunacy.</p> <p>7. The burden was on those resisting the advancements, to show a change of intention of the parent when he was sane.</p> <p>8. Positive and direct evidence for this purpose was not necessary, and the question was for the jury.</p> <p>9. Upon awarding a feigned issue, the court in allowing interested persons to testify may restrict the points on which they may testify.</p>

31. In the court below this was an issue on the will of Christian Bitner, deceased. The order of the court, March 15th 1869, was : “That an issue be framed to test the validity of the paper, purporting to be the last will and testament of Christian Bitner, deceased.

43, to May Term 1869. In the distribution of the proceeds of the. sheriff’s sale of the personal property of James B. Farquhar. On the 18th of March 1867, James B. Farquhar executed judgment-notes to several creditors in Philadelphia, payable one day after date, viz.: Bush, Bunn & Co., for $1112.65; Wainwright & Co., for $509.49, and Hess, Rogers & Chambers, for $667.80.

<p>1. An abnormal condition of mind is never presumed when a testator makes a will, unless a previous aberration be shown of such a nature as may admit of a presumption of reourring unsoundness at any time.</p> <p>2. Bach case as to incapacity is, to a great extent, to be tested by its own facts and circumstances.</p> <p>3. Old age, failure of memory or habitual drunkenness, will not per se constitute incapacity to make a will.</p> <p>4. The test of capacity is, that the testator’s mind and memory were sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed his will.</p> <p>5. Weakness alone will not invalidate a will, if there be mind and memory enough to understand the subject in hand and to direct the disposition of the property intelligently.</p> <p>6. The test of this is to be of the time when the will is made including' some latitude of proof, before and immediately, as distinguished from remotely, after.</p> <p>7. Undue influence may be either through threats or fraud and must destroy the free agency of the testator, at the time when the instrument is made.</p> <p>8. Declarations as to the incapacity of a testator by a party sustaining the will, were properly rejected, when the offer was made without limitation as to time, place and circumstances of making them.</p> <p>9. Proof is admissible to rebut a material presumption.</p> <p>10. As a general proposition less capacity is sufficient to make a valid will than to transact ordinary business-</p> <p>11. The rule as to incapacity and undue influence in McMasters v. Blair, 5 Casey 298, Daniel v. Daniel, 3 Wright 191, Storms v. Vancleve, 4 W. C. C. R. 262, Eckert v. Fleury, 7 Wright 46, adopted.</p>

<p>1. A married -woman’s power to cbnvey or charge her real .estate in Pennsylvania is derived solely from Act of February 24th 1770, § 2.</p> <p>2. The requirements of that act as to separate examination and acknowledgment must be strictly pursued and so appear on the magistrate’s certificate.</p> <p>3. The bond and warrant of attorney to confess judgment of a married woman are absolutely void.</p> <p>4. A judgment on a scire facias ipsued on a judgment on such warrant is void, and a sheriff’s sale under it conveys no title to the purchaser.</p> <p>(5. A resulting trust in land of which the title is in a married woman cannot be proved by her acknowledgment.</p> <p>6. Land was conveyed to a mother and two' daughters; in an action by one, a married woman, her receipt-with the assent of her husband to her mother for “ six hundred dollars^money I had in the property my mother now owns,” was inadmissible on the question whether the conveyance as to her third was a mortgage.</p> <p>7. A mortgage by parol defeasance or a constructive trust may exist in a married woman; but it must he made out by a formal declaration, accompanied by a certificate of separate examination and voluntary acknowledgment.</p>

<p>1. A devise was “ I give to my son Daniel and my daughter Susanna the balance of my farm at $55 per acrethe testator directed that the proceeds of all his estate should be equally divided amongst his children, so that those who had more than their share in their bequests should pay over to two other daughters named such sum as would equalize their shares, so that all his children should “ get share and share alike.” By a codicil it was ordered “that if my daughter Susanna die without heirs then the part bequeathed to her shall fall to Daniel at the same rate as in the will, and be equally divided between those of my other children or their heirs and representatives then living, to be paid as the payments are directed in my will.” Held, 1. That the devise was a fee to Daniel and Susanna. 2. That heirs in the codicil meant issue. 3. That the contingency of death without issue was confined to the testator’s lifetime.</p> <p>2. The charge of $55 per acre made the devise a fee without reference to the Act of April 8th 1833, g 9.</p> <p>3. The nature of the devise over has always been considered in determining whether a definite or indefinite failure of issue was intended.</p> <p>4. The devise over was to take effect in Daniel’s life, for he was to do a personal act, viz., pay for Susanna’s share, so as to be divided amongst the other children, &c., then living.</p> <p>5. When a testator indicates that all his children shall take equally, in cases of doubt the will shall be so construed as not to disappoint this primary and paramount intention.</p> <p>i 6. Susanna having survived the testator, the provision in the codicil did not come into operation and she took an absolute fee simple under the devise.</p> <p>7. Taylor v. Taylor, 13 P. F. Smith 481, recognised.</p>

<p>1. A child died intestate, unmarried and without issue, her personal estate vested in her father and mother jointly and absolutely under Act of April 8th 1833, $ 3 (Intestates). ,</p> <p>2. The interest of the parents in a note due her was enforceable only through administration on her estate.</p> <p>3. Until distribution of the child's estate, the interest of the parents remained joint.</p> <p>4. The father died, the notes not having been paid, and there having been no administration of the child's estate, there was no question about reduction into possession by the father, although the notes were found in his possession at his death.</p> <p>5. On the death of the father, the title to receive the estate of the child devolved on the mother who survived him.</p> <p>6. The father and mother did not hold as ordinary joint-tenants'but by the entireties.</p> <p>7. 'The Act of April 11th 1848 (Married Women) did not change this relation.</p>

<p>1. Amongst the powers of the states not surrendered to the General Government are the police powers exercised by passing laws to promote the peace, safety, good order, health and interests of a state.</p> <p>2. A state may use the means to effectuate an acknowledged power in itself which Congress may apply for .another purpose.</p> <p>3. Congress may make that a regulation of commerce, which a state may employ as a guard for its internal policy or to preserve the public health or peace or to promote its peculiar interests.</p> <p>4. When a state exercises her sovereign power in a matter involving the interests of her citizens, though it may touch upon a subject within the power to regulate commerce, it is not invalid unless it conflicts with a law of Congress on the same subject.</p> <p>5. The Constitution of the United States confers no power of eminent domain or of legislation over state territory, except that relating to the seat of government and places purchased with the consent of the state for forts, &e.</p> <p>6. Navigable streams within the states are subject to the regulating and police power of the- state for the protection of the people and of internal commerce, when not in conflict with an Act of Congress to regulate commerce.</p> <p>7. The Act of December 11th 1866, regulating the floating of logs, &c., on the Susquehanna, was a lawful_ .exercise of the police power of the state and is constitutional.</p> <p>8. A contract between Maryland and Pennsylvania to preserve the free and public navigation of the Susquehanna is not infringed by proper regulations to promote the navigation by making it safe and convenient to all and preventing it from being monopolized.</p> <p>9. The Act of 1866 forbad the floating of saw-logs in the Susquehanna, below Northumberland, without being rafted or enclosed in boats and under the control of men actually on them; and provided that they might be taken up by any one when found “ so floating,” and unless redeemed in two months by payment of fifty cents for each log they should become the property of the captor. Held, that the owner’s title to logs thus taken up could not be divested without notice, and an opportunity of showing that the logs had not been voluntarily set afloat loose.</p> <p>10. “ The law of the land” in the bill of rights means due process of law, not an act of the legislature.</p> <p>11. All claims for justice are to be tried and enforced by the judicial authority of the state and by due course of law.</p> <p>12. Under the Act of 1866, the mere fact of logs being found floating is not a ground of forfeiture; it is the voluntary act of floating which is prohibited.</p> <p>13. The mere act of floating may justify seizure to answer the supposed offence.</p> <p>14. Logs voluntarily floated and stranded may be taken up under the Act of 18G6.</p> <p>15. The Act of March 20th 1812, directing that the captor of logs shall lodge a list within thirty days with the nearest justice, which shall be published for three weeks, and if the owner shall not take the logs away within three months afterwards they shall be forfeited, is not repealed.</p> <p>16. The Acts of March 20th 1812, April 20th 1853, May 8th 1855, April 10th 1862, and December 11th 1866, are in pari materia.</p> <p>17. Replevin lies whenever one claims goods in the possession of another without regard to the manner in which they were obtained.</p> <p>18. On the question of damages in replevin, the means by which the goods have been taken or retained will be considered.</p> <p>19. Exemplary damages in replevin may be given when there has been outrage in taking or vexation or oppression in the detention.</p> <p>20. If the taking or detention be under an innocent mistake, the measure of damages may be mere compensation.</p> <p>21. Primá facie, the value of the property when and where it is replevied, is the measure of compensation; but this may be varied by the character of the taking and removal to the place of replevy.</p> <p>22. Herdic v. Young, 5 P. F. Smith, recognised.</p>

<p>1. The court below affirmed this point: “That while the marks on the ground, as a general rule, constitute the true survey, such marks must be in accordance with the bearings, as near as may be, of the survey returned into the land office, and have some resemblance thereto.-” Held, to be error.</p> <p>2. The marks on the ground constitute the official survey; the draft is but the evidence of it and will be controlled by them.</p> <p>3. Courses aud distances are controlled by calls and marks.</p> <p>4. The work on the ground is the original.</p> <p>5. The uniform practice is to send out with the jury all title-deeds and papers given in evidence on the trial, unless there be a very special reason1 to the contrary.</p>

<p>Error to the Court of Common Pleas of Cumberland county: No. 26, to May Term 1870.</p> <p>This was an action of ejectment for 75 acres of land, brought September 5th 1867, by Elizabeth Eenton, John E. Carson, Elizabeth R. Carson, Elisha Carson, William Carson, James MeBeth and Jane his wife in her right, and James McElwaine and Alice his wife in her right, against James MOullough.</p> <p>The parties claimed under John Carson, who died in 1800, seised of the land in controversy. The decedent left four children, viz.: John, Elisha, Ruth and Hannah by one wife; and three, viz.: Priscilla, Elijah and Martha, by another wife.</p> <p>The decedent left a will dated April 11th 1800, and proved May 6th. The will amongst other things provided as follows:—</p> <p>* * * “Next, I give and bequeath to my sons John Carson, .Jr., and Elijah Carson, all my real estate as hereafter limited, that is to say, as soon as Elijah arrives at the age of twenty-two years, they shall have full possession and not sooner. The rents and profits of said estate to go towards the keeping, maintaining and educating my younger children, to wit: Hannah, Priscilla, Martha and Elisha, if they or any of them should so long live. I further order and direct that if my said two sons cannot agree in the division of said land, or agree to sell and divide the money, that in such case they shall choose five disinterested persons to value and divide the same, whose determination shall be final.”</p> <p>He gave to other children legacies amounting to ¿S385, which he charged on the devise to John and Elijah, and proceeded :—</p> <p>* * * “ Further, it is my will that in case that John or Elijah, or either of them, should die without lawful issue before they come to the possession of the land by virtue of this my last will and testament, then in such case I order and direct that their respective shares of the land be equally divided between Hannah, Priscilla and Martha, or in case any one of them of the said John or Elijah should die aforesaid, without issue, then in such case it is my real intention that whichever of them may survive and live to the time of possession, is to receive an equal share with the three last-mentioned girls. And further, I order and direct if any of my daughters, to wit, Hannah, Priscilla or Martha should die without lawful issue or not being married, that then their share or shares should go to their next of kin in equal degree of the full blood.”</p> <p>Elijah Carson, the devisee, died in 1813, before he arrived at the age of 22 years; Martha died in 1815. On the 14th of April 1818, James Piper and four others made a report in partition, stating in it that they had been, chosen for that purpose by the heirs of the decedent, agreeably to his will, and had. divided a tract of 205 acres into equal parts of 102J acres each, one, which includes the land in dispute, to John, at a valuation of $55 per acre and the other to Hannah and Priscilla at $50 per acre. On the 7th of May deeds of partition were made between John, and Hannah and Priscilla in accordance with the report; and on the 16th and 22d of May, John conveyed his part to John Dunbar whose title is vested in the defendant. John died in 1820, Ruth died in 1823. Elisha died in 1824, leaving seven children, the plaintiffs in this case; Jane McBeth and Alice McElwaine were married before 1834, Hannah died in 1844, and Priscilla on the 12th of November 1844 executed a deed to bar the estate tail in the land in dispute, and took a reconveyance on the 20th of the same month; she died in 1864. None of the children of John Carson the elder left issue but Elisha. The premises had been held in adverse, hostile and notorious possession by Dunbar and those claiming under him since the conveyance to him in 1818.</p> <p>The question in the case was the construction of the devise of the testator’s real estate.</p> <p>Graham, P. J., charged:— * * *</p> <p>“ The facts in this case are not disputed, and it is admitted by the respective counsel that the questions presented are questions of law for the court, there being no disputed facts to submit to the jury.</p> <p>“ The plaintiff’s counsel contend that under the devise in the will of John Carson, Sr., his son John took at most but an estate in tail. In this we do not concur. Although there is no word of inheritance used by the testator in the devise to his sons, John and Elijah, we think his intention is very clear, that he intended to give them a fee simple, particularly if they or either of them survived until the time they were to have possession, when Elijah should attain the age of 22 years. It is only in case that either John or Elijah should die without issue before they came to the possession of the land by virtue of testator’s will, that the share of the deceased shall be divided between the surviving brother and Hannah, Priscilla and Martha. And although there are no words of inheritance used by testator, the land and the persons of the devisees are charged with the payment of legacies to their brothers and sisters, and it is a well settled principle that this will give the devisee a fee simple although there may be no words of inheritance. But the testator also authorizes the devisees to sell the land and divide the money. This is entirely inconsistent with the idea that he intended to give them less than a fee simple. Had Elijah attained the age of 22 years, and he and John sold the land and divided the money as the testator authorized them to do, the title of the purchaser could not have been doubted, that he would hold in fee simple, and it is difficult to suppose how the death of Elijah could reduce the estate of John from a fee simple to a fee tail. The one-fourth of Elijah’s interest upon his death vested in John in fee simple, and one-fourth in Hannah, one-fourth in Priscilla and one-fourth in Martha in fee tail. [Upon the death of Martha, her fourth passed to Priscilla, her only surviving sister of the full blood. John then held five-eighths of the 205 acres in fee simple, Priscilla two-eighths, and Hannah one-eighth in fee tail.] This being the quantum of interest, and estate held by the respective tenants partition was made by five men under the direction óf the will, and deeds executed by the respective parties as before stated. The land was divided into two equal parts each containing 102J acres. The part conveyed by John was' valued at $55 per acre, and the part conveyed by John to his two sisters, was valued at $50 per acre. A question is here presented as to validity of the partition made. Can tenants, one of whom holds an undivided interest in fee simple, and two who hold an undivided interest in fee tail make partition? This, we think,may be done where the interest of the heir in tail is not prejudiced or injured by the partition made. This would occur when the value of the respective parts corresponded with the respective interests of the tenants. This would not prejudice the heir in tail, for three-eighths in value would remain subject to the entailment. But where less land in value, is assigned to the tenants in tail, than the value of their interest in the whole, and owelty of partition is paid to them, this would be clearly an injury to the heirs in tail, it would reduce the value of the estate in tail, it would be converting a part of it into money for the benefit of the tenants in tail, and would not be binding upon them. * * *</p> <p>[“We are therefore of opinion that their partition is of no validity against the heirs in 'tail.]</p> <p>“ But Priscilla Carson, in her lifetime, on the 12th November 1844, executed a deed under the Act of Assembly to bar her estate tail in the land in controversy. This deed, although it was executed many years after she had parted with her interest in the land, is valid and available to bar the estate tail, and will enure to the benefit of the vendees claiming under her, so that there can be no recovery as to the two-eighths of whieh she was tenant in tail.</p> <p>“ The only remaining interest is the one-eighth of Hannah, who died 4th April 1844. The suit was brought to November Term 1867, more than twenty-three years after her death. The land in controversy has been in the hostile, adverse and notorious possession of the vendee of John Carson, and those claiming under him since 1818, a period of forty-nine years. It has been occupied by residence and cultivation, by those claiming title, as farms are usually occupied. [The present plaintiffs had a right of entry at the death of Hannah Carson, more than twenty-three years before suit brought, and that right is now barred by the Statute of Limitations, and they cannot recover, except James McBeth and Jane his wife and Jam'es McElwaine and Alice his wife. They were at the death of Hannah Carson and still are married women. The statute does not run against them, and they are entitled to recover the two-sevenths of the eighth of 75 acres and 19 perches, described in the plaintiffs’ statement.”]</p> <p>The verdict was for James McBeth and wife, and James McElwaine and wife, for the undivided two-sevenths of the one-eighth of the land in dispute.</p> <p>The defendant took out a writ of error, and assigned for error the parts of the charge in brackets.</p>

33, of May Term 1870. On the 6th of February 1861, Matthias Bittner issued an attachment execution against Josiah Snyder on a judgment recovered against him on the 5th of February, for $588.75. Samuel Walker was one of the garnishees; he answered interrogatories and also pleaded nulla bona. On the 20th of September 1869, Snyder’s death was suggested, and John B. Coover, his administrator, was substituted.

<p>1. A.’s land was ordered to be sold. H. just before the sale agreed with A.’s minor children to buy it for them; he was at the sale with the minors and stated publicly he wanted to buy for them; it was struck down to him and he announced to the minors that he had bought for them. The deed was made to H. Some time previously to the sale, at the minors’ request, H. agreed to be their guardian and was afterwards appointed. He sold the land at an advance. Held, that H. was chargeable in his guardian account with.the advance.</p> <p>2. H. at and before the sale and up to his appointment, stood in a fiduciary relation to the minors.</p>

20, to May Term 1870. This was an action of ejectment for 520 acres of land, by The Riddlesburg Coal- and Iron Company against The Broad Top Coal and-Iron Company; the writ was issued August 13th 1866.

101, to May Term 1870. A bill was filed on the 7th of August 1869, by C. W. Bhodes and others against Jacob B. Fleming, burgess, B. F. Winger and others, town council, and Daniel Hanbecker, constable of the borough of Greencastle. The plaintiffs were residents of Green-castle.

108, to'May Term 1870. In the estate of Anna M. McCullough, deceased. John McCune died intestate in May 1855, owning real and personal estate, leaving a widow, Sarah A. McCune, seven children and a minor granddaughter, Anna M. McCullough, the child of Bathsheba McCullough, a daughter of the decedent who had died before him. W. Gr. Duncan was appointed guardian of the minor; her father died in 1856.

83, to May Term 1870. Max Kennedy, committee, &c., of Sally Mahon, a lunatic, on the 15th of February 1868, instituted an action of dower against George Johnston, and claimed dower for his ward as the widow of Robert Mahon’of a tract of 240 acres of land, &c. Johnston pleaded, 1. To the jurisdiction of the court, and that the jurisdiction was in the Orphans’ Court; 2. That Sally Mahon was never seised of dower in said tract; 4.

<p>1. J. being insolvent sold all his personal property to P. for $7000, of which $3000 was J.’s indebtedness to P., the remainder payable in annual instalments of $1000. The price was not greatly inadequate. Held, that the terms of payment did not make the transaction fraudulent per se.</p> <p>2. There being evidence of a change of possession, the bona tides of the transaction was for the jury.</p> <p>3. Creditors of J. levied on the goods and also attached the notes given for their purchase-money. Held, that the creditors in an interpleader issue were not estopped by reason of the attachments.</p>

45. This was an action of assumpsit, brought April 22d 1867, by William Wolf against Nancy Studebaker. The cause of action was the breach of a contract of leasing of the farm of the defendant to the plaintiff.

71, to May Term 1870. This was an action of assumpsit brought, December 23d 1868, by Alexander McDowell against Peter Brough, Samuel F. Greenawalt and John A. Brough. The cause of action was this note:— “$6000. On demand, we, or either of us, promise to pay Alexander E. McDowell, or order, six thousand dollars, W’ithout defalcation, for value received, with interest from date, November 28th 1864.

110, to May Term 1870. The proceedings in this case commenced by the petition of Anna R. Burns, the widow of R. K. Burns, setting forth that Samuel Hepburn had been in the lifetime of her husband her trustee, and as such received the sum of $2855.84; that the object of the trust no longer existed, and praying for a citation to the trustee to show cause why the trust fund should not be paid to her.

<p>1. J. died indebted, bis land was sold under bis will to 0., one of bis executors. Suit was brought against the executors; C. was not served; a general judgment was taken by default. A scire facias to charge the land was issued against the executors, the widow and children, in which O. was served and in which judgment was taken by default. Held, that the judgments were regular and C.’s land might be sold under them.</p> <p>2. C. filed a bill in equity to restrain the judgment-creditor from proceeding. Held, that if the judgment had been irregular, the remedy was at law by writ of error to the judgments and not in equity.</p>

<p>1. Parol evidence of mistake is admissible to qualify or contradict a ■written instrument.</p> <p>2. L. by articles agreed to sell land to G., $2000 to be secured by a judgment-note with interest. The deed and note were delivered and judgment entered. It was afterwards discovered that the scrivener had accidentally omitted “with interest,” from the note. Held, that by the 39th section of Act of June 13th 1840, and 3d section of 16th of April 1845, the Court of Common Pleas in equity had jurisdiction to correct the mistake and decree the payment of interest that was overdue.</p> <p>3. An accidental omission from a writing comes under the head of mistake.</p> <p>4. The opening of a judgment is purely discretionary and no appeal lies from an adverse decision. t</p> <p>5. The Court of Common Pleas in equity could not reform a judgment on the law side.</p>

109, to May Term 1870. In the court below this was a bill by John Mussleman, executor, &c., of Samuel Mussleman, deceased, against James I). Bell, to enforce the specific performance of a sale of the land of the decedent sold by the executor after his death.

38. William Kellerman on the 8th of July 1868, brought an action of replevin against Samuel Lehman and others, for forty-five dozen sheaves of wheat and ten dozen sheaves of rye. The defendants amongst other pleas, pleaded “property in themselves.” The plaintiff was the owner of a tract of land, warranted and surveyed in the name of Marcus Metzgar. The defendants were owners of an adjoining tract warranted and surveyed in the name of Kinsey Daniels.

<p>1. S. and K. by writing assigned property of the firm, choses in action specified “to the persons hereinafter named and for the purposes herein mentioned * * * and to any other persons having a claim against the firm. * * * The design of this assignment is that the said property shall be divided among the said persons, creditors aforesaid, in proportion to their respective claims, and O. E. M., an attorney in whose hands the above-mentioned note and amounts are for collection, is directed to pay the same over to said creditors after deducting reasonable compensation for his services.” Held, not to be an assignment requiring to be recorded under the Act of 1818.</p> <p>2. Assignments, necessary to be recorded, are those in trust for creditors not those which are directly to creditors. Per Graham, P. J.</p> <p>3. The assignment was to all the creditors including those not named, and they took directly under it. Id.</p> <p>4. The direction to the attorney gave him no interest legal or equitable in the fund. Id.</p>

58, to May Term 1870. This was an action of assumpsit, brought August 12th 1865 by Henry L. Burkholder against Joseph W. Patton and Joseph A. Stuart, administrators, &c., of William Beetem, deceased. Held: and how and to whom transferred.” “ I know nothing of the company.

63, of May Term 1870. This was an action on the case, brought August 22d 1868, by Jesse Laverty against Joseph Yanarsdale and ten others, for conspiracy, and injuring him in his business as a school teacher.

86, to May Term 1870. This was an action of ejectment to August Term 1866 by Jacob D. Heft against J. P. Gephart for 4997 acres of land in Gregg and Penn townships. The case was tried, February 5th 1868, before Barrett, P. J., of the 22d District. The plaintiff gave in evidence: 19 warrants of 400 acres each and surveys; patents to Thomas P. Cope in November 1796, and deed March 10th 1850 from Cope to William L. Musser.