Volume 66 — Pennsylvania State Reports

<p>Writs of error to the Court of Common Pleas of Blair county: No. 74 and 87, to May Term 1868.</p> <p>This was an action of covenant on two policies of insurance, to January Term 1859, by Daniel Beatty against the Lycoming County Insurance Company. The case had been before tried, and the judgment reversed in the Supreme Court. (2 P. E. Smith 456).</p> <p>The last trial was February 4th 1868, before Taylor, P. J. The plaintiff gave in evidence two policies from the defendants to him; one; No. 37,775, dated July 29th 1854, insuring $600, viz., on “household furniture” $367 andón “groceries” $233. The other, No. 41,140, dated May 1st 1855, insuring $600 on a frame dwelling-house in Duncansville, near Altoona. One of the conditions of the insurance was, that in case of fire “ the insured shall forthwith give notice thereof to the secretary, and within thirty days' after said loss shall deliver to the secretary a' particular account of such loss or damage, signed by his or her or their own band or hands, or by their guardian, attorney or agent.” He gave evidence also of the fire and of the property lost.</p> <p>James McCloskey testified: “John Shoemaker was acting as agent for the insurance company; he was present the day after the fire; McClay Hall was with him; he is a lawyer; they were taking testimony concerning the fire; there was a number examined as witnesses; McClay Hall acted as counsel on behalf of the company; he took down testimony, all that was given; Mr. Beatty was examined, I think he was examined in regard to his losses; after they left the tavern Mr. Beatty was complaining that he did not know how to proceed; Mr. Beatty said he would go down and employ Mr. Blair to carry on the matter and write out the notice; Mr. Shoemaker replied to him that he had met with a great loss, and he was going to write to them and notify the company immediately; I think Mr. Hall said to him, You will have thirty days to go and come on, anyhow, he need not do it until Mr. Shoemaker heard from them; Mr. Shoemaker said, I don’t think you will have any trouble with it.”</p> <p>Thomas Hollan testified: “ I was present at the arbitration of the case; Mr. Shoemaker was represented as the agent, at the arbitration; they had received some anonymous letters; one was produced; they said they couldn’t find the other one; the charge was that Mr. Beatty had fired the building himself — that there was foul play; there was no other objection made at that time than that.” * * * *</p> <p>The plaintiff proved the handwriting of Shoemaker, and that he was postmaster at Altoona. He then gave in evidence the copy of a notice of the fire to the secretary of the defendants at Muncy, Pennsylvania, as follows, viz., * * * “ One frame house, insured in the Lycoming County Mutual Insurance Company, &c., was, on the 31st day of August 1858, completely destroyed by fire and entirely lost.</p> <p>“ You are also hereby notified that at the same time and place, the household furniture and groceries of the undersigned, insured by policy of insurance, dated the 29th day of July 1854, and numbered 37,775, as follows, viz., household furniture, $367, groceries, $233, making together the sum of $600, were also lost and destroyed by fire aforesaid; the whole property of undersigned in the house at the time being destroyed, with the exception only of a few articles of household furniture.</p> <p>“ You will take notice further, that the said the Lycoming County Mutual Insurance Company will be looked to by me for payment in full of the amount and sum insured by the policies aforesaid, and payment in full hereof will be required and demanded from them.</p> <p>“ Daniel Beatty.</p> <p>“ Duncansville, Blair Co., Pa.”</p> <p>Attached was the affidavit of plaintiff, dated September 20th 1858, “that the statements made in the foregoing notice are correct and true.”</p> <p>The following also was attached:—</p> <p>“ Copy of the within notice compared with original by me, and enclosed to the secretary of the Lycoming County Mutual Insurance Company, this day by mail, September.</p> <p>“John Shoemaker, P. M.”</p> <p>For the defendants. John Shoemaker testified : “ I was agent for Lycoming Insurance Company at time of fire; I resided at Altoona; I was agent to take applications and make surveys; that was all my authority at that time; I also acted as receiver; Joshua Bowman was secretary of company then, and resided at Muncy; I had no authority to act in any other way than I have stated; I had no authority to receive notice of loss ; I -was in the employ of the company when the case was tried before arbitrators at Altoona; L. W. Hall was the attorney of the company; the defence made was on the ground of fraud and want of notice agreeable to contract, and particular statement of loss not having been furnished; no other grounds of defence that I remember; * * * I made an examination next day after the fire; we looked at the place and examined Mr. Beatty and some few others; I had heard in reference to it some dissatisfaction expressed as to, the origin of the fire; I also received an anonymous letter, saying Mr. Beatty should not be paid for his loss, and to satisfy the members of the company an investigation should be made; Mr. Beatty requested me to come up and look at the ruins; I thought over the matter, and thought it best to get McClay Hall to go with, me to make the investigation, which we did; hut it was not done by direction of the company or with their knowledge; it was at my own instance; I communicated to the company that I had investigated the matter; Mr. Beatty did not request me to give notice to the company; he said he would employ Mr. Cress-well ; I think a day or two after I told him it was necessary for him to give notice; he didn’t say anything; the company, after they received notice from Mr. Beatty, wrote to me to resist the claim, and authorized me to employ counsel on the ground that I stated before, of fraud and want of notice, and want of particular statement, as required by the conditions of the policy; I notified Mr. Beatty they wouldn’t pay him, and after that he brought suit; I received that notice as postmaster at Altoona; I compared it and signed the certificate, not as agent — that was given at Altoona in the office; after they received this notice a few days, they instructed me to resist the claim; I told Beatty they would not pay him: * * * the testimony of Beatty and McCauley was written down by Mr. Hall; he was at that time in the office of his brother, L. W. Hall, Esq.; Mr. Hall swore them and took the notes of testimony ; I sent the notes of testimony to Mr. Bowman ; we examined them about the origin of the fire, not particularly about the loss; * * * I was agent when Beatty brought the paper to me; I judged it to have been written by Mr. Cresswell; I put it in the post-office; they merely replied that they had received the notice and to resist the claim; I told Beatty, after I received that letter, that they would not pay him; * * * I think Beatty did say that he could not tell the amount of groceries; he did not hesitate about giving me an account of his loss.”</p> <p>The defendants gave in evidence the deposition of Joshua Bowman, their secretary, of which the following is an extract:—</p> <p>“ I am familiar with the claim of the plaintiff in this case. John Shoemaker was not an agent of this company at the time of plaintiff’s loss for any other purpose than to take applications; as such an agent he had no authority to receive or accept notices of loss in this or any other case; he had no general or special authority from the company or executive committee to adjust plaintiff’s loss, or do any other act with reference thereto; whatever he did was without the authority or knowledge of the company; the company never received a particular account of plaintiff’s loss or damage, as required by his policy, the policy requiring notice to be given forthwith; the company never did anything looking to a recognition of Beatty’s claim against the company.”</p> <p>The defendants’ points were :—</p> <p>1. The plaintiff not having given notice of the loss forthwith to the secretary of the company as required by the policies, and not till twenty days after the fire, cannot recover on either policy.</p> <p>2. The plaintiff’s account of his loss in his notice, dated September 20th 1868, is not such a particular account of his loss or damage as the terms of the policy require of him, and no particular account of his loss or damage having been delivered to the secretary within thirty days of the fire, he cannot recover on his policy, No. 37,775.</p> <p>3. There is no evidence to be submitted to the jury of a waiver by the company, of the requirements of the policies as to the notice to be given forthwith by the plaintiff to the secretary of the company, and the plaintiff cannot recover on either policy.</p> <p>4. There is no evidence to be submitted to the jury of a waiver of the requirements of the policy to give a “ particular account of the plaintiff’s loss or damage” within thirty days after the fire, and the plaintiff cannot recover on policy No. 37,775.</p> <p>Judge Taylor, in his charge, said:— * * * “ Upon these general facts, the first question which meets us, is, was there a compliance with the condition appended to each policy, to furnish forthwith to the secretary of the company, notice of the fire; and, also, within thirty days afterward the particular statement stipulated in the seventh condition. Here the formal notice, in the handwriting of Mr. Cresswell, forwarded for Mr. Beatty by Mr. Shoemaker, was not sent for twenty days, and we feel fully warranted in saying was not a compliance with the stipulation ‘forthwith’ to give notice of the fire to the secretary. [But we think the affidavit of Mr. Beatty, as to the origin and circumstances of the fire, sworn to and signed by him, and forwarded by Mr. Shoemaker to the secretary two days afterwards, was a sufficient notice of the fire, and a substantial compliance with that part of the condition. It stated as a fact the occurrence of the fire, was signed by the insured, and conveyed with his signature to it, to the secretary, within two or three days ; and no matter by whom or what agency or authority sent or conveyed, it was, in his possession, notice to the company of the fact communicated, on a reasonable construction of the stipulation.] [And we are also of opinion that this affidavit, and the brief formal notice drawn by Mr. Cresswell, and forwarded for Mr. Beatty, twenty days after the fire, conveyed together a sufficiently ‘particular statement’ of the loss of the building, and was a substantial and sufficient compliance with that stipulation in the condition to the policy insuring the building; though they did not, viewed separately or together, convey such a statement of the loss of the goods_insured by the other policy.]</p> <p>[ “ It is our opinion, therefore, that if you find the facts as we have stated them, there may be, as it respects this question, a recovery by the plaintiff on policy No. 41,l40, for the loss of the building; but not on the other, No. 37,775, for the loss of the goods insured by it, unless there was a waiver by the defendant of the stipulation requiring a particular account or statement of the loss to be furnished to the secretary within thirty days], — or evidence from which a jury might he allowed to infer or find such waiver ; and that presents the next question.</p> <p>SUPREME COURT £Warrislurg [Beatty v. Lycoming Oo. Mutual Ins. Co.]</p> <p>“Was there a waiver by the defendant ? The plaintiff alleges there was, as it respects both policies; while the defendant denies that there was as it respects either of them. The only evidence of it is, in what is shown to have been done by Mr. Shoemaker immediately after the fire, and in the correspondence which followed between him and the secretary of the company. Mr. Shoemaker was the local agent of the company residing at Altoona, a few miles from the insured property. It is alleged, and this appears from the evidence to be the fact, that his authority as such agent, was only to take surveys to be submitted to the company for their action, and collect or receive assessments upon policies. If so, it did not include authority to waive any condition or stipulation in a policy. The agent could only bind his principal either directly, by express agreement, or by his acts or conduct, when acting within the scope of his authority. If not authorized to waive directly, by his agreement to do so, he could not do it indirectly; or, in other words, a waiver could not .be inferred from his unauthorized act or conduct, or from what he did upon assumed authority. The stream cannot rise above its source.</p> <p>“ If therefore you find that Mr. Shoemaker was only a local agent and clothed only with authority to make surveys and receive assessments, what he did upon his own authority the day after the fire, is not, we instruct you, evidence from which a waiver could be inferred. Nor do we think the letters of the secretary to Mr. Shoemaker dated 17th September, instructing him to employ counsel to resist the claim, and stating to him, as a reason, that they believed there had been ‘foul play,’ should be submitted to your consideration as evidence from which a waiver may be inferred.</p> <p>“ The defendant alleges, also, as a further reason why there should be no recovery for the groceries destroyed, that they were not burnt in the house in which they were insured. If they were not, but in any other building, there could not, for that reason, we' say to you, be any recovery for their loss. Whether they were, or were not, is a question of fact to be determined by you from all the evidence.</p> <p>“ It remains only to answer the points made and submitted in writing by the defendant’s counsel. We are asked to instruct you,</p> <p>“ ‘ 1. That the plaintiff not having given notice of the loss forthwith to the secretary of the company as required by the policies, and not till twenty days after the fire, cannot recover on either policy.’</p> <p>“We refuse to answer this point as requested; referring to our general charge for a full and qualified answer.</p> <p>“ ‘ 2. That the plaintiff’s account of his loss in his notice, dated September 20th 1868, is not such a particular account of his loss or damage as the terms of the policy require of him, and no particular account of his loss or damage having been delivered to the secretary within thirty days of the fire, he' cannot recover on his policy, No. 87,775.’</p> <p>“We answer this point in the affirmative; there being, as we have instructed you in our general charge, no evidence of the furnishing of a particular account or statement of the goods insured in policy No. 37,775; and that there can be no recovery upon that policy.</p> <p>“ £ 3. That there is no evidence to be submitted to the jury of a waiver by the company of the requirements of the policies as to the notice to be given forthwith by the plaintiff to the secretary of the company, and that the plaintiff cannot recover on either policy.’</p> <p>“We refuse this instruction; but refer you to what we have said in our general charge, for a full answer to this and the 1st point.</p> <p>“ £ 4. That there is no evidence to be submitted by the court to the jury of a waiver of the requirements of the policy to give a £ particular account of the plaintiff’s loss or damage’ within thirty days after the fire, and that the plaintiff cannot recover on policy No. 37,775.’</p> <p>“ We answer in the affirmative, as requested.” * * *</p> <p>The verdict was for the plaintiff for $970.81. Each party took a writ of error.</p> <p>The plaintiff’s assignments of error were:—</p> <p>1. The latter two portions of the charge in brackets and the answer to the defendants’ 2d point.</p> <p>2. The answer to the defendants’ 4th point.</p> <p>The defendants’ assignments were: 1 and 2. The refusal of their 1st and 3d points.</p> <p>3. The first portion of the charge in brackets.</p>

39, to May Term 1870. This was an action of assumpsit by the county of Blair against Jacob Wertz, commenced March 8th 1865.

11, to May Term 1869. This was an action of covenant on a policy of insurance, to 'July Term 1866, by Elisha Elliott against the Lycoming Mutual Insurance Company.

84, to May Term 1869. . This was an action of assumpsit by James Funk, late sheriff of Blair county, against George W. Smith to recover the difference between the amount bid by the defendant at a sheriff’s sale for property which he refused to accept, and the sum for which the same property was subsequently sold. The defendant pleaded the Statute of Limitations. The property was first sold to Seth R. McCune, the agent of the defendant, on the 24th of January 1860, for $800.

On the 17th of November 1868, Ambrose H. Bentley brought an action on the case against the Pennsylvania Canal Company, for negligence in permitting the tow-path of their canal to be in so bad condition that a mule of plaintiff drawing a canal-boat was killed. The case was tried before Graham, P. J., December 7th 1869.

105, to May Term 1870. This was an action by The West Branch Insurance Company, to the use of their assignees for the benefit of creditors, against William Macklin. The suit was instituted before a justice of the peace for the recovery of assessments made on two notes given, for the premium on two different policies of insurance, issued by the plaintiffs to the defendant. The case was removed into the Court of Common Pleas by appeal.

6, to May Term 1870. This was an action of ejectment brought to January Term 1867 by Christian Bechdle against Simon Lingle, Benjamin Ligget and others for 132 acres of land in Liberty township. The case was tried, February 3d 1868, before Barrett, P. J., of the Twenty-second District.

11. The Pennsylvania Canal Company was indicted in the Court of Quarter Sessions of Dauphin county, on the 21st of November 1867, for refusing and neglecting to keep sluices open in their dam in the Susquehanna river, at Duncan’s Island, under the 2d and 3d sections of the Act of March 30th 1866, Pamph. L. 370, “relating to the passage of fish” in the Susquehanna and its tributaries. The Act of May 16th 1857, Pamph.

<p>Error to the Court of Common Pleas of Dauphin county: No. 16, to May Term 1870.</p> <p>This was an appeal by the Atlantic and Ohio Telegraph Company from the settlement of the accounting officers of the Commonwealth, made October 28th 1868.</p> <p>The settlement was as follows :—</p> <p>“Eor tax on capital stock, per Act of April 12th 1859, and Act of May 1st 1868, for years 1864, 1865, 1866 and 1867, ending first Monday of November of each year, as per reports herewith filed.</p> <p>“ 1864. Div’d 13 per ct. on $650,000. Tax, 6-J mills $4,225.00</p> <p>“ Add 10 per ct. penalty for failure to report per Act April 21st 1858, and Act May 1st 1868 422.50</p> <p>“ 1865. Div’d 10 per ct. on $650,000. Tax, 5 mills 3.250.00</p> <p>“ Add 10 per ct. per Act April 21st 1858 and Act May 1st 1868 ....... • 325.00</p> <p>“ 1866. Div’d 10 per ct. on $650,000. Tax, 5 mills 3.250.00</p> <p>“ Add 10 per ct. per Act April 21st 1858, and Act 1st 1868 ....... 325.00</p> <p>“ 1867. Div’d 10 per ct. on $650,000. Tax, 5 mills 3.250.00</p> <p>“Due Commonwealth .... $15,047.50”</p> <p>The defendants appealed, and filed these specifications :—</p> <p>“ The said settlement was based on a report of dividends, made by one H. H. Shillingford, who was formerly treasurer of said company, alleged to have been made by the said company during the year aforesaid; which said report is false and erroneous in fact, and was not authorized by the officers of this company. Whereas, the said settlement should have been made upon the basis of the true and correct report of dividends furnished the auditor-general, on the 5th day of August 1868, by O. H. Palmer, the then treasurer of this company.</p> <p>“ The entire amount of dividends declared for the capital stock of the Atlantic and Ohio Telegraph Company, during the years embraced in this settlement, was the sum of $100,700, on its entire capital, as appears' by the report made by O. II. Palmer, as aforesaid, and as the appellants are ready to verify; whereas, the tax in this case is levied upon the capital stock, as if dividends had been declared thereon during the years aforesaid, amounting in the aggregate to the sum of $279,500, making a difference of $10,012.50, as against the appellants on the tax above, and a proportionate sum on the penalties annexed.”</p> <p>The defendant was incorporated by the Commonwealth of Pennsylvania by Act of March 24th 1849. It owned and operated a line of telegraph in this state.</p> <p>On the trial, May 4th 1869, the Commonwealth proved and gave in evidence the following returns, all made by IT. H. Shillingford, the treasurer of defendant, on the 7th of October 1867. Report for year ending November 1864:</p> <p>Capital paid in ...... $650,000</p> <p>Dividends declared in January, April, July and October.</p> <p>“ Amount of each dividend declared, $26,000, $26,000, $16,250, $16,250.</p> <p>“ Rate per cent, per annum of dividends 13 per cent.”</p> <p>Report for year ending November 1865; * * *</p> <p>“ Amount of each dividend declared, $16,250, $16,250, $16,250, $16,250.</p> <p>“ Rate per cent, per annum of dividends 10 per cent.”</p> <p>Report for the years ending November 1866 and November 1867, the same as for year ending November 1865.</p> <p>The Commonwealth gave in evidence the settlement and rested. The defendants then gave in evidence an agreement, dated April 15th 1864, between the defendants of the first part and the Western Union Telegraph Company of the second part, which witnessed that “ the said party of the first part, in pursuance of a resolution of their board of directors, &c., does hereby lease to the party of the second part for the term of ten years, commencing on the 1st day of April 1864, and continue thereafter until terminated by six months’ notice, at the option of either party, all their telegraph lines, instruments, property, offices and franchises, with the right to work said lines at the expense of the party of the second part, and enjoy the profits of the same as fully and effectually as heretofore done by the party of the first part; and the party of the second part agreeing to assume all the present indebtedness, liabilities, contracts and obligations of the party of the first part.</p> <p>“ And in consideration of the aforesaid lease, the said party of the second part does hereby covenant and agree to pay, free from taxes, in quarterly payments of two and a half per cent, each, in April, July, October and January, in each and every year of the term, to the treasurer of the party of the first part, at the rate of ten per cent, upon the par value of the stock in said company, excepting the amount owned at the time of each payment by the said lessee party of the second part, the stock being $50 per share. The party of the second part also agree to keep said lines in repair, and deliver them and all their appertenances covered by this agreement over to the party of the first part, at the expiration of this lease, in as good working order as they now are. It is also understood and agreed between the parties hereto, that the party of the first part shall have the privilege of making the usual quarterly dividend of $2 per share during the present month.” * * *</p> <p>Signed by the officers of the company under the corporate seal.</p> <p>To the agreement was appended—</p> <p>“By.the authority conferred upon me by the Western Union Telegraph Company, as per resolution hereunto attached, I hereby agree on behalf of said Western Union Telegraph Company, to exchange at the rate of $1400 of the Western Union Telegraph Company’s stock, for $2000 of the stock in the ‘.Atlantic & Ohio Telegraph Company;” or to pay in cash $70 per share for the stock of the said ‘Atlantic & Ohio Telegraph Company.’ This agreement not to be binding after the 16th day of May next.</p> <p>“Philadelphia, April 15th 1864. J. H. Wade.”</p> <p>They then called W. II. Abell, auditor of the Western Union Telegraph Company. He testified that the first interest under the lease was paid in July 1864; the number of shares outstanding not owned by the company was 410; they were reduced in April 1869 to 189. Witness gave a statement of ■ dividends declared by the Western Union Telegraph Company. He testified : — “ They are applied to the Atlantic & Ohio Line, as that represents the entire amount made by the Western Union Co., in proportion to its length of line; — on the whole capital not including outstanding stock; — it shows what the dividends were on that part held by'the defendants.” The statement was headed :</p> <p>“Interest paid by Western Union Telegraph Company to Atlantic and Ohio stockholders.”</p> <p>It commenced July 1864, and ended April 1869, on different numbers of shares of stock, from 410 in 1864 to 130 in 1864, the rate of dividend of 10 per cent, per annum paid quarterly, and the aggregate amount of dividends during the period was $3685.</p> <p>II. H. Shillingford testified, that as treasurer of defendants he had received for some' time from the Western Union Co. dividends at 10 per cent, for all the stockholders of the defendants except the Western Union Co.; afterwards that company remitted directly to the stockholders.</p> <p>Judge Pearson charged: — ■</p> <p>“ The Atlantic and Ohio Telegraph Company was incorporated under the laws of Pennsylvania, with a capital stock of $650,000, went into operation, and at the time of lease to Western Union Company, was declaring dividends of 13 per cent, per annum. On the 15th day of April 1864 this lease was made, by which it was agreed to pay 10 per cent, per annum to the stockholders of the company on the par value of the stock, excepting the amount owned at the time of each payment by the lessee, and the tenant to pay all taxes. This sum of 10 per cent, was the amount on which the tax on capital stock must be computed under the various Acts of Assembly. No returns were made to the auditor-general by the Atlantic and Ohio Company or its lessee for the years 1864, 1865, 1866 and 1867, until produced by repeated solicitations; but in October 1867 Mr. Shillingford, the treasurer, made his report under oath, as required by law, showing that 10 per cent, dividends were made on the capital stock, that being the sum paid by him to each stockholder, except the Western Union Company, which settled its affairs in its own way. The amount of its dividends was not furnished to the treasurer to be paid out. The company was subject to a penalty of 10 per cent, on each year’s taxes for its neglect to report. This was included in the settlement ; and as to the exaction of the penalty, no exception is taken in the specifications,'consequently that is not in the issue. The return made by the treasurer is primá facie correct and binding on the company, until a mistake is clearly proved. The error is attempted to be established by showing that the Western Union Company made no profits equal to 10 per cent, dividends on the stock of the Atlantic and Ohio Company. Only about one-half of that sum was divided among its stockholders on its whole lines, nor would this company, if standing alone, have made such profits. It is conceded that the outstanding stock was paid that amount; but it is said that the contract would not have been made but for the privilege of absorbing the stock of that company, as provided in the lease. [We are unable to see how, that stock is absorbed. If the individual stockholders transferred to the Western Union after the lease, that company, if it can hold it at all, retains it intact, — it still remains the stock of the Atlantic and Ohio Company, and is entitled to its 10 per cent, dividends. If sold to others, the purchasers could demand the 10 per cent, according to the lease, and if no dividends are claimed on the stock by the Western Union Company, the state has the right to treat the stock as of the value paid to those receiving dividends.] We greatly doubt the right of the Western Union Company to buy this stock, as no authority is shown in its charter to make such purchases: but even if it could be held by its officers as trustees, it is still outstanding, and entitled to the dividends. By such a purchase the value of stock in a Pennsylvania corporation cannot be destroyed or lessened, so as to affect the right of the state to its taxes. The state is not bound to accept the dividends made by a corporation it never chartered in lieu of one of its own creation. [We are of the opinion that the amount of dividends paid to the stockholders of the Atlantic and Ohio Company is the true and proper evidence of the vaiue of the stock under the Act of Assembly; that no sufficient evidence is shown of any error in the report of the treasurer, which must, under all of the circumstances, be taken to have been correct, and therefore your verdict must be in favor of the Commonwealth for the amount fixed by the settlement, as it is conceded to have been predicated of that return. On the sum so found due you will compute interest for the time and at the rate fixed by the Act of Assembly to which we have referred.”]</p> <p>The verdict was for the plaintiff for $15,684.49.</p> <p>The defendants took out a writ of error, assigning for error the parts of the charge included in brackets.</p>

67, to May Term 1870. This case originated in an action before a justice-of the peace by the Overseers of the Poor of Delaware township against the Overseers of the Poor of Greenwood township, to recover for the support during sickness, and funeral expenses of.Samuel Simpson, a pauper of the defendants. The case was removed into the Court of Common Pleas by appeal to February Term 1869. The plaintiffs declared in assumpsit.

<p>1. On an appeal from a settlement of the accounting officers of the Commonwealth, no point can be reviewed unless specified in taking the appeal.</p> <p>2. It is the right of financial officers of a corporation to retain the three-mill tax under the Act of April 29th 1844 without assessment by the county officers.</p> <p>3. The tax laws prior to the Act of April 30th 1864 imposed a tax on corporation bonds in the hands of non-residents.</p> <p>4. The Act of 1864 provides a remedy for collecting the tax out of the resources within the legislative jurisdiction of the Commonwealth.</p> <p>5. Maltby ». Columbia and Reading Railroad, 2 P. P. Smith 140, adopted.</p>

<p>The Act of May 1st 1868, consolidating the tax laws, is prospective in its operation and therefore in its repealing clause, and did not affect settlements made before its passage.</p>

<p>1. The taxing power rests upon necessity and inheres in every sovereignty. Per Pearson, P. J.</p> <p>2. The taxing power is unlimited except by constitutional prohibition; in amount it is co-extensive with the wants of the government. Id.</p> <p>3. It is applicable to all property and rights created or protected by the law. Id.</p> <p>4. It may not be enforced against persons not amenable to or protected by our laws, yet may be against the property or rights coming within the limits of the Commonwealth. Id.</p> <p>5. Taxation is correlative to protection. Id.</p> <p>6. The money of a creditor loaned to a citizen of this state may be taxed here and the tax collected through the debtor. Id.</p> <p>7. A railroad extended through Pennsylvania and other states. The assessment of tax on its debt is to be in proportion to its extent in this state. Id.</p> <p>8. Double taxation is not unlawful in this state. Id.</p> <p>9. Our constitution does not require equality of taxation. Id.</p> <p>10. The officers of a corporation are personally responsible for the tax. Id.</p> <p>11. The Commonwealth can sequester a railroad within her borders till the tax is paid. Id-.</p> <p>12. The negotiable character of coupons of a railroad corporation will not exempt them from taxation; every one receiving them was bound to know they were taxable. Id.</p> <p>13. An omission to charge on any particular aspect of the law where it does not necessarily present itself, is not error in the absence of a request to notice it.</p> <p>14. One object of an exception to a charge is to bring a specific error to the notice of the judge, that he may correct it on the spot before the jury have acted.</p> <p>15. The practice of excepting to the whole charge without designating a specific error is a bad one, and should be repressed by the lower court.</p>

<p>Error to the Court of Common Pleas of Dauphin county: No. 78, to May Term 1870.</p> <p>On the 21st of January 1869, the accounting officers of the Commonwealth settled an account against the Monongahela Navigation Company as follows, viz.:—</p> <p>“ Gross receipts, ...... $30,005.66</p> <p>Tax three-fourths of one per cent., . . . 225.04</p> <p>Due Commonwealth, ..... $225.04”</p> <p>* On the 15th of February 1869, the company appealed and filed the following specifications:—</p> <p>“ I. There is no law authorizing the imposition and collection of the taxes claimed in said settlement.</p> <p>“II. The Monongahela Navigation Company is not a transportation company.”</p> <p>The company was incorporated March 31st 1836 (Pamph. L. 282), amongst other provisions of the act of incorporation were the following:—</p> <p>Section 8, to “ make a complete slack-water communication between the city of Pittsburg and the Virginia state line,” .i</p> <p>Section 10, “ that the president and managers shall be entitle(l to take and receive the same rate of toll per ton, or otherwise, at their discretion, as the Schuylkill Navigation Company are entitled to receive under their act of incorporation.”</p> <p>Section 20, “ the said company shall not engage, directly or indirectly, in any banking, moneyed, commercial or manufacturing concern, or in the transportation or storage of any merchandise, lumber, coal, grain, flour or other articles, nor shall they hold, erect or own any lands, buildings, wharves or docks, other than such as are necessary and convenient for their business as a navigation company.”</p> <p>The tax was charged under the Act of May 1st 1868, Pamph. L. 108, Purd. 1536, pi. 24, 25; the sections bearing on the question are as follows:—</p> <p>“ Section 7. The president, treasurer, cashier or other financial officer of ever y railroad company, steamboat company, canal company and slack-water navigation company, and all other companies now or hereafter doing business in this state, and upon whose works freight may be transported, whether by such company or by individuals, and whether such company shall receive compensation for transportation, for transportation and toll, or shall receive tolls only, except turnpike, plank-road and bridge companies, * * shall pay a tax upon tonnage.</p> <p>“ Section 8. In addition to the taxes provided for as aforesaid, every railroad, canal and transportation company liable to tax upon tonnage, under the preceding section of this act, shall pay to the Commonwealth a tax of three-fourths of one per centum upoiKthe gross receipts of said company; the said tax shall be paid semi-annually, upon the first days of July and January; and for the purpose of ascertaining the amount of the same, it shall be the duty of the treasurer or other proper officer of said company to transmit to the auditor-general, at the dates aforesaid, a statement, under oath or affirmation, of the amount of the gross receipts of said company derived from all sources during the preceding six months,” &c.</p> <p>The court (Pearson, P. J.) charged that the company did “ not come within..the words of the statute imposing a tax on gross receipts;” that it was “not subject to a tax on its gross receipts, and the verdict must be for the defendants.”</p> <p>The verdict was in favor of the defendants.</p> <p>The Commonwealth took out a writ of error, and assigned for error the above instructions.</p>

<p>Error to the Court of Common Pleas of Dauphin county: No. 89, to May Term 1870.</p> <p>On the 11th of July 1866 the accounting officers of the Com- ,, monwealth settled an account against the Erie Railway Company for tax on tonnage under the Act of August 25th 1864, finding that there was due the Commonwealth ¡§6334.</p> <p>The company appealed. On the trial, December 16th 1869, Pearson, P. J., instructed the jury that so far as the taxation was imposed on freight carried from Pennsylvania into another state or from another state into Pennsylvania, it was unconstitutional; in pursuance of this instruction a verdict and judgment were rendered for the defendants. This judgment was reversed by the Supreme Court: 12 P. F. Smith 286.</p> <p>The case was again tried, January 25th 1870, and a verdict and judgment were rendered for the Commonwealth for $8834.95; the defendants then sued out this writ of error.</p> <p>The Erie Railway Company was incorporated by the state of New York. By the Act of the 26th of March 1846, Pamph. L. 179, the legislature of Pennsylvania allowed them to construct their road through a portion of the county of Pike, and provided that they should pay for the privilege the sum of $10,000 per annum; the act further provided that the stock of the company to an amount equal to the cost of construction of that part of the road in Pennsylvania should be subject to taxation as similar property in the state; both the annual tax and the stock tax have been paid.</p> <p>The Act of August 25th 1864, § 1, Pamph. L. 988, Purd. 1379, pi. 11, imposed on railroad companies, &c., on freight carried on the works of such company a tax as specified in the act; it also provided that every corporation of another state enjoying privileges, &c., in this state should pay tax for freight carried over that portion of their line in this state.</p> <p>The questions considered and decided in this case were raised by the following points submitted by the defendants on the trial in the court below:—</p> <p>“ 11. The legislature, by the several acts heretofore referred to, having prescribed a rate of taxation of the New York and Erie Railroad Company, and there being a necessary implication of the relinquishment of the right of further taxation, the tax in question does impair the obligation of the contract and is void.</p> <p>“ 12. The legislature, by the several acts heretofore referred to, having prescribed a rate of taxation on the New York and Erie Railroad Company, and not having expressly reserved the power to themselves, the tax in question does impair the obligation of the contract and is void.”.</p> <p>Judge Pearson answered the points as follows:—</p> <p>“ 11. To deprive the state of the authority to tax this company, there must be an express relinquishment of the power, forming a contract between the state and the corporation. It can rarely if ever be implied, that such a power is abandoned. We can find nothing in the Act of March 26th 1846, from which it can be inferred. The 6th section of the statute requires a statement to be made annually to the legislature of its affairs, the business done on the road, number of passengers and amount and weight of freight carried. Why this report, except for the purpose of future taxation ? The right to tax must he relinquished for what the parties at the time deem a sufficient consideration, else the state will not be barred.</p> <p>“ 12. The power to tax need not be reserved; it exists without any reservation. The corporation must show that it has been released, or that there was an agreement that it should not be exercised. It is an incident of state sovereignty.”</p> <p>These answers were assigned for error.</p>

<p>Appeal from the decree of the Court of Common Pleas of Dauphin county: No. 32, to May Term 1870: In the distribution of the proceeds of the sheriff’s sale of the real estate of John Edwards.</p> <p>John Edwards being the owner of the real estate which produced the fund in controversy, judgment was entered on the 8th of June 1858, in favor of Emeline Lutz, against him and John Swiler, for $300.</p> <p>On the 9th of April 1859, John Edwards made a mortgage to Harriet Shoemaker for $1727, which was recorded on the same day. This mortgage was afterwards assigned to Jacob Mumma.</p> <p>On the 6th of June 1863, an amicable scire facias to revive the judgment of Emeline Lutz was entered, between her as plaintiff and John Edwards as defendant; Swiler, the other defendant in the original judgment, was not included in the scire facias: the agreement to revive had no revenue stamp. Subsequently, a number of judgments - to a large amount were entered against Edwards. His real estate was sold by the sheriff to F. K. Boas for $2635, which being brought into court, was referred to Robert Snodgrass, Esq., for distribution.</p> <p>He reported that the judgment in the amicable scire facias, by reason of its being against Edwards alone, did not continue the original lien; that consequently the mortgage was the first lien and the purchaser took the land subject to the mortgage. He therefore distributed the fund amongst the judgment-creditors.</p> <p>The purchaser and the mortgagee excepted to the report, which was set aside by the court (Pearson, P. J.) and recommitted to the auditor, with instructions to distribute the fund to all the liens including the mortgage.</p> <p>The auditor made a report in accordance with the instructions ■of the court excluding the later judgments. It was confirmed by the court, and distribution decreed accordingly. Edwards and the creditors excluded appealed to the Supreme Court and assigned for error the decree of the court.</p>

<p>1. The Pennsylvania Railroad Co. after the purchase of the public works raised a dam on the Susquehanna; in an extraordinary flood the land of Freeland' was overflowed, the injury being increased by the raising of the dam. Held, that under the Act of May 16th 1857 (Sale of Public Works), the company had the right to raise the dam and were not liable to Freeland.</p> <p>2. The intention of the act was that the purchasers should hold and use the works for the objects for which they were created and bring them to the highest condition of utility.</p> <p>3. The condition in which the Commonwealth had maintained the works was not to be the standard for the future.</p> <p>4. The act conferred on the company the right to exercise the state’s eminent domain and exempted them from liability for consequential damages.</p> <p>5. The company is not bound to erect guard-walls to confine the stream to fixed limits and prevent overflow in high floods.</p> <p>6. Evidence of the height of a flood after suit brought for damages by a previous one, was irrelevant unless it had been shown to have some connection with that one.</p> <p>7. When evidence apparently irrelevant is offered, it must be stated how it is supposed to be relevant and this must appear in the bill of exceptions.</p>

This was an alternative mandamus, issued May 3d, 1870, upon the information of F. Carroll Brewster, Esq., Attorn ey-G-eneral, against John N. Conyngham, President Judge, Edmund L. Dana, Additional law Judge, and Thomas Collins and Isaac S. Osterhout, Associate Judges of the Court of Common Pleas of Luzerne county, The information set out that by the 14th section of an act passed March 3d 1870 (Pamph.

86 and 95, to May Term 1870. On tbe 28tb of February 1862 Caleb S. Maltby entered into a contract with the Reading and Columbia Railroad Company for the construction of their road from Columbia to Sinking Springs, on the Lebanon Yalley Railroad, for which the company were to pay to Maltby $400,000 in the stock of the company, and $600,000 of their 7 per cent, mortgage-bonds, to be paid pro raid, as the work progressed.

Appeal by the Commonwealth from the decree of the Orphans’ Court of Lancaster county in the distribution of the estate of Silas Omohundro, deceased. The decedent was a resident of Richmond, Virginia, where he died about July 1st 1864, leaving real estate in Pennsylvania.

<p>1. Parties owned ore-land as tenants in common; they entered into partnership in manufacturing iron and bought other real estate. The proceeds from the land and the purchase-money of the real estate were carried into the firm books with the partnership transactions. 'Held, that these circumstances did not make the land and the proceeds firm property.</p> <p>2. Each party used the ore without requiring the other to account and there was no known excess to be paid for as the business progressed. Being a voluntary delay of both, interest was properly chargeable only from the time the balance was struck.</p> <p>3. 0., one partner, contracted to sell ore from the common property to H. for a particular furnace, to be paid for in iron from that furnace, E., the other party, declining to join. E. and P. afterwards bought Ilfs furnace, so that he could not furnish iron. Held, that the contract with H. did not run with the land, and E. after the purchase was not responsible to O. on it.</p> <p>4. E. gave indemnity to H. against damages to O. for failing to fulfil his contract. Held, that this created no liability on E. to C. on account of U.'s contract.</p> <p>5. The indemnity created no privity between E. and O.</p>

100, to May Term 1870. The 35th section of the Act of March 19th 1860, Pamph. L. 194, incorporating the city of Harrisburg, provides for enacting an ordinance by councils for opening streets, for appointing viewers to assess damages, and also provides that the streets shall not be opened till the damages are paid or secured.

Mandamus at the relation of George Swartz against J. P. Wickersham, State Superintendent of Common Schools.

61, to October and November Term 1868. On the 18th of November 1857, an ejectment for 43 acres of land was commenced by A. A. Mason against David Bolard and Margaret Snyder. The writ was endorsed,— “ I authorize and depute S. Landon to execute the within writ, as witness my hand and seal. December 28th 1857. W. A. Hurst, Sh’ff. [t. s.] _ _ December 29th 1857, served personally and by copy on David Bolard and Margaret Snyder. So answers S. P. Landon, Dep’y. Sh’ff.

<p>1. In slander it is not necessary that all the words laid in the declaration should be actionable, it is sufficient if some are.</p> <p>2. All words spoken at the time may be laid and given in evidence as showing the animus.</p> <p>3. Where words impute that a common-law offence had been committed in another state, it need not be affirmatively proved that the offence was indictable there.</p> <p>4. The presumption is that the common-law of a sister state is similar to our own.</p> <p>5. That words should impute an offence for which there would be liability to prosecution or punishment, is not the criterion of their actionable character.</p> <p>6. To render words actionable per se they must impute an offence of moral turpitude punishable criminally.</p> <p>7. The law as to the offence in the country in which the words are spoken is to determine their character.</p> <p>8. Words spoken in Pennsylvania charged the commission of adultery in Georgia. Meld,, that they were actionable per se.</p> <p>9. The position in life and the family of a plaintiff in slander are important circumstances as bearing on the question of damages and are admissible; they need not be laid in the declaration.</p>

160, to October and November Terms 1869. This was a feigned issue, ordered August 12th 1865, “ to try the fraudulent insolvency of the Bank of Commerce from the auditor’s report.” The issue was ordered to be made up between S. A. Davenport, assignee of the Bank of Commerce, plaintiff, and C. B. Wright and twelve others, defendants, and that the plaintiff should declare in indebitatus assumpsit.

In Equity. No. 187, to October and November Term 1869. On the 16th of April 1866, Philena Brown and Joshua Folansbee, two of the executors of Hiram L. Brown, deceased, commenced proceedings under the Act of December 14th 1863 (Pamph.

95. This case was between Daniel J. Woodward, plaintiff, and Charles M. Wheeler, defendant. It was commenced before a justice of the peace, and on the 26th of July 1866 removed into the Court of Common Pleas by appeal.

<p>Error to the Court of Common Pleas of Crawford county: Of October and November Term 1870.</p> <p>.On the 1st of October 1865, the Atlantic and Great Western Railway Company mortgaged to John R. Penn “ all the estate and property, real, personal and mixed, and all fixtures, rights, privileges, franchises, easements, rights under leases, terms, and parts of terms, agreements, covenants and contracts of all and every kind, held and owned or occupied by the said party of the first part. * * * Together with all and singular the lands, * * * privileges, franchises, rights and interests, real estate, personal property, choses in actions, leasehold and other things, of and belonging to said party of the first part of every kind, nature and character,” &c.</p> <p>On the 15th of January 1870, the Supreme Court of Pennsylvania appointed Reuben Hitchcock, receiver of all the property, &c., of the company covered by the mortgage.</p> <p>On the 21st of January 1867, the plaintiff recovered a judgment against the company for $1022. On the 17th of March 1870, the plaintiff issued execution on his judgment, and levied on two pieces of ground in Meadville, the property of the company; owned by them before and at the date of mortgage, which were condemned.</p> <p>On the 22d of April, Hitchcock, the receiver, petitioned the Court of Common Pleas setting forth the foregoing facts, and praying the “ court to set aside the above writ, levy and inquisition, and restrain the said plaintiff from proceeding to execute his writ on any of the property in the possession, custody, control and ownership of your petitioner as receiver of the Atlantic and Great Western Railway Company.” A rule was granted to show cause why the levy and inquisition should not be aside.</p> <p>On the 18th of July 1870, the court set aside the execution and all the proceedings in the case, Yincent, J., saying : “ It appears to us that the property taken in execution by the plaintiff is in the custody of the law and his remedy therefore is by application to the court that appointed the receiver and has control of his actions as such.” This decree was assigned for error by the plaintiff, who removed the case to the Supreme Court by writ of error.</p>

117, to October and November Term 1870. This was an action commenced before a justice of the peace by K. O. Barker against John C. McCreary, in which judgment was rendered for the plaintiff November 8th 1867 for $46.62. The plaintiff appealed to the Court of Common Pleas: he there filed a declaration in assumpsit; and on the 18th of July, entered a rule to plead on or before the third day of the next term. No plea was entered.

118, to October and November Term 1870. Jacob Riblet brought an action before a justice of the peace for the penalty imposed by the Act of March 23d 1868, “ To secure farmers against losses caused by railroads in Erie county,” and its supplement of April 23d 1868, Pamph.

157, to October and November Term 1870. In an action of debt in the Court of Common Pleas of Crawford county, of November 1866, between tbe Petroleum Bank to tbe use of F. W. Ames, receiver, plaintiff, and Joseph L. Chase, defendant, on a note for $800, the jury found tbe following special verdict March 29th 1870 :— “ On or about tbe 22d day of March 1866, tbe defendant called upon John R. Madison, the cashier and general discount agent of the Petroleum Bank, and requested…

<p>1. A constable in Venango gave bond with surety for the collection of taxes, being in default he moved into another county, the surety afterwards gave notice to the treasurer to sue the constable or he would be held no longer, no suit was brought. Reid, that the surety was still liable.</p> <p>2. Whether the surety for a public officer is discharged in any case by neglect to bring suit after notice, not decided.</p> <p>3. By Act of April 3d 1851, constables in Venango are to collect taxes and give bond for the discharge of their duties under the act and for the payment of the taxes in four months, &c. Reid, that the limitation in the 4th section of Act of March 29th 1824 (Constables’ Sureties) does not apply to the sureties in these bonds.</p> <p>4. These bonds are under the provisions of the Act of April 4th 1798, limiting suits to seven years from the cause of action.</p> <p>5. Where a county treasurer in settling with a constable charged him with too little and the county auditors settled with the treasurer on the same basis, this cannot avail the constable in a suit to recover the amount actually due by him.</p>

<p>Appeal from the Court of Common Pleas of Crawford county: In Equity: Of October and November Term 1870, No. 180.</p> <p>On the 11th of March 1867, Abishai F. Randolph filed a bill against Robert Randolph, alleging:—</p> <p>1 and 2. That he and Robert, on the 1st of April 1866, entered into partnership, to carry on the business of a saw-mill and merchandise, for five years, the saw-mill a.nd a farm to be the capital furnished by Robert, and Abishai to furnish $2000 in cash and goods; a house for Abishai’s dwelling, with rooms for the store, to be erected at their joint expense, the building to be Robert’s at the end of the five years; if dissolved sooner, parts of the real estate designated were to be taken by each at a valuation.</p> <p>3. On the 1st of February 1867, Robert gave notice of dissolution, left the concern, but continued to carry on the business, and had improved the mill.</p> <p>4. No settlement between the parties had been made; Abishai had sought a settlement, but Robert had declined.</p> <p>The bill prayed for an account; that Robert might be restrained from collecting the partnership debts or disposing of the property; for the appointment of a receiver; and general relief.</p> <p>On the same day a preliminary injunction was granted.</p> <p>On the 16th of April, A. Power was appointed receiver.</p> <p>On the 18th of April, Robert filed an answer, admitting the partnership and dissolution as set out in the bill; he averred that he and Abishai jointly took an inventory of the stock, and Abishai took'possession of it and of the store, house and garden, and still held possession; that Abishai was carrying on the merchandise part of the business, had the books of the firm, and was collecting the accounts; that Robert had possession of the mill; that he was not collecting any of the accounts; that he was, and had been, ready to account for all the firm property, and had so informed Abishai.</p> <p>On the 24th of April J. W. Smith, Esq., was appointed commissioner to take testimony.</p> <p>The docket-entries showed that the case was on the argument-list May 2d, and continued. On the 20th of November 1868, Robert filed a cross-bill against Abishai, in which he set out:—</p> <p>1. The filing of Abishai’s bill.</p> <p>2. That on the 22d of April 1867, during the continuance of the cause, they entered into an agreement as follows:—</p> <p>“ It is agreed, by the undersigned, that all matters and accounts between us be fully and finally settled to this date, upon the following terms: Robert Randolph to pay Abishai the sum of $300, settle with the millwright man, pay half of the court costs in the equity case, release his claim of every kind to the goods in the grocery, and transfer his right of every kind in the books of the firm to said Abishai. Abishai agrees to leave the entire premises within ninety days, and if possibly convenient, in sixty days from this date, taking books, goods in grocery, lumber as now divided, and the sum of $300, now paid; the premises to be left in good order, and all'title thereto hereby released, Abishai discontinuing the equity case in court, and paying the other half of the court costs.</p> <p>'“ April 23d 1867. R. F. Randolph, [l.s.]</p> <p>A. F. Randolph, [l.s.] ”</p> <p>3. That at signing the agreement, Robert paid the counsel of Abishai $300, for which a receipt was endorsed on the agreement, 'also half the costs of the suit, released his claim to the goods, transferred his right to the books, and complied in all things with the agreement; that Abishai had taken the firm books, the goods, the lumber as it was then divided, but refused to pay half the equity costs or discontinue the case.</p> <p>The solicitors of Abishai accepted service of the bill November 25th 1868.</p> <p>On the 10th of June 1869, Robert ruled Abishai to answer, demur or plead in thirty days.</p> <p>Abishai filed an answer to the cross-bill (at what time does not a.ppear from the record). The answer denied the allegations of the second paragraph of the bill as stated, and set out as the facts, that, after negotiations between the parties, “the defendant in the original bill, and the complainant in the cross-bill, at last said that he would accept a proposition that had been made by this respondent through Messrs. Pettis and Power, but that he would do nothing until he had seen his attorney; * * * he came to the ofiice of Mr. Pettis, this respondent’s attorney, in Meadville, and asked him to write a paper that would be proper for both to sign, and Mr. Pettis complied with, his request, the said complainant in the cross-bill takirig such paper to his attorney, Mr. Brawley, afterwards returning with it, signed by him, handing it to Mr. Pettis, in the absence of your respondent, together with $300 in money, which he was to pay down to the respondent, then withdrawing to give Mr. Pettis an opportunity of seeing the complainant in the original bill, and obtained his signature, and pay over the money referred to; that Mr. Pettis afterwards found this respondent, presented the paper so signed by the complainant in this cross-bill, with instructions or a request that he sign it, which this respondent did, without even reading it or any portion of it, or hearing any part of it read, supposing that it had been prepared in pursuance of the proposition made and accepted through Messrs. Pettis and Power, and that having signed it, this respondent inquired of Mr. Pettis what time was fixed in the article for the payment of the amount due to this respondent from the complainant in this cross-bill upon the books of the company, and it appearing from an examination of the article that no time had been fixed, it became necessary for Mr. Pettis again to seek the complainant in order that the agreement should be perfect in that respect; that Mr. Pettis immediately called upon the said complainant, who refused to fix such time as well as to pay such amount; that these facts being communicated to this respondent by Mr. Pettis, this respondent flatly refused to take a dollar of the money, and never did, not even counting it, but directed his attorney, Mr. Pettis, to return the said sum of $300 to the defendant, and that Mr. Pettis went immediately to the defendant and offered him the identical money he had received from him, informing him that this respondent would not receive the money unless the whole of the proposed agreement could be carried out by him, the complainant, and that the said complainant refused to receive the money back, which is still subject to his order.</p> <p>“ 3. In answer to the third paragraph in complainant’s cross-bill of complaint, the respondent saith: That the receipt of Mr. Pettis, his attorney, referred to as being upon the back of the said agreement, was also written and signed in your respondent’s absence, and that at the time when the complainant in this cross-bill of complaint signed his' name to the proposed agreement this respondent was not present, nor was he at the time when Mr. Pettis signed such receipt upon the back of such agreement and took the money, nor had he ever seen or in any way directed the paper or agreement.”</p> <p>The docket-entries show that, “August 19th 1869,” “ September Term 1869,” “November 25th 1869,” “December 14th 1869,” the case was on the argument-list.</p> <p>The record did not show any further pleadings, nor did it show any return by the commissioner appointed to take testimony under the original bill.</p> <p>In the opinion the court said:—</p> <p>“ The parties agree that the cross-bill should be first disposed of, and should be argued and determined upon bill and answer.”</p> <p>On the 16th of December 1869 the court “ decreed that the prayer of the bill be granted, and the original bill by Abishai F. Randolph v. Robert Randolph be dismissed, and that the plaintiff therein pay half the costs made prior to the 23d of April 1867, and all the costs made since that date.”</p> <p>Abishai Randolph appealed, and assigned 16 errors.</p> <p>The first 10 were to expressions in the opinion of the court.</p> <p>11. Refusing to appoint a master.</p> <p>12. In hearing and disposing of the cross-bill before considering the original bill.</p> <p>13. In not considering the testimony taken by the commissioner before the cross-bill was filed.</p> <p>14. In not treating the bill and cross-bill as one case.</p> <p>15 and 16. In disposing of the case when not at issue and dismissing the original bill.</p>

185, to October and November Term 1870. On the 15th of April, 1869,D. W. Canfield petitioned for a private road from a public road leading from Meadville, &c., “ to run from the canal bridge, &c., to lands of the petitioner.” On the same day an order was issued to three viewers.

<p>1. Irvin bought land by articles and paid part of the purchase-money;</p> <p>Lamberton entered a judgment against him, afterwards Irvin assigned the articles to Bleakley antedating the assignment to precede the judgment to defraud Lamberton, and Bleakley paid the vendor the balance of the purchase-money. Lamberton bought Irvin’s title under his judgment. Lamberton was entitled to specific performance from the vendor without repaying Bleakley.</p> <p>2. Bleakley was not entitled to subrogation to the vendor’s rights.</p> <p>3. Subrogation is of pure equity and benevolence, not of contract.</p> <p>4. One attempting to defraud another by payment, cannot ask repayment from him attempted to be defrauded.</p> <p>5. The payment was not on a bargain with the vendor, but was voluntary.</p> <p>6. A chancellor will not assist one to obtain anything arising out of a</p> <p>fraud. ‘</p> <p>7. He who does iniquity shall not have equity.</p>

<p>Error to the Court of Common Pleas of Jefferson county: No. 127, to October and November Term 1870.</p> <p>This was an action of assumpsit by the administrators of A. S. Rhines, deceased, against J. B. Evans, commenced July 27th 1865.</p> <p>The cause of action was. the neglect of the defendant in not using due diligence to collect a note placed in his hands for collection. The pleas were, the general issue and the Statute of Limitations.</p> <p>The case was tried December 18th 1869 before Campbell, P. J.</p> <p>The plaintiffs gave in evidence the following receipt:—</p> <p>“ $365. Brookville, February 10th 1858.</p> <p>“Rec’d for collection of A. Rhines one note or due-bill on Lukins & Beeson, of Rochester, dated Oct. 30th 1857, for three hundred and sixty-five dollars.</p> <p>“J. B. Evans.”</p> <p>Lukins, one of the drawers of the due-bill, testified, that they were solvent, and had been at and ever since they gave the due-bill ; that they would not pay it, but would adopt any legal means to prevent its collection; that at the time the due-bill was given, it was the understanding that it was to be taken up in the next spring by a note; that they had given a note in the spring to a man representing himself to be the agent of Rhines, but the due-bill was not taken up; the note was paid at bank.</p> <p>The plaintiffs read the deposition of John A. Myler, to which were attached these exhibits :—</p> <p>“Received, Rochester, Pa., May 13th 1858, from Lukins & Beeson, their note of this date for three hundred and sixty-two dollars and thirty cents, payable to the order of Andrew S. Rhines, at the Merchants’ and Manufacturers’ Bank of Pitts-burg, in four months. In consideration of the above, the undersigned John A. Myler agrees to pay, or cause to be paid, to the said Andrew S. Rhines a due-bill for three hundred and sixty-five dollars, dated in December last 1867, and signed by Lukins & Beeson. John A. Myler.”</p> <p>“ $372.30. Rochester, Pa., May 13th 1858.</p> <p>“ Four months after date we promise to pay to the order of Andrew S. Rhines three hundred and seventy-two dollars and thirty cents. Value received. Payable at the M. and M. Bank of Pittsburg, Pa. Lukins & Beeson.”</p> <p>The deponent said the signature to the receipt had not been written by him; the writing was that of John S. Piehl, and made without the deponent’s authority; the note was endorsed by him as an accommodation endorsement; the proceeds had not been placed to his credit; Piehl had run away in 1862 or 1863.</p> <p>The court charged the jury: “ Judge Evans’s receipt being dated 10th February 1858, and this suit not being brought till July 1865, the Statute of Limitations, under the evidence, is a bar to the plaintiffs’ recovery, and therefore your verdict ought to be for the defendant.”</p> <p>The verdict was for the defendant, and the plaintiffs took a writ of error, assigning the charge of the court for error.</p>

<p>1. A judgment for purchase-money was entered against Green, afterwards January 29th, he applied for the benefit of the Bankrupt Law and was discharged as of February 24th. Barr bought his land May 8th, under the judgment; the land was set apart to Green under the bankrupt exemption, and he sold to Fehley. In ejectment by Barr, Fehley alleged that Barr concealed his title and encouraged Fehley to buy. Held, that evidence that Fehley had been informed by a stranger of Barr’s title was relevant.</p> <p>2. Fehley testified on cross-examination that he did not know whether the stranger had informed him. Held, that this was not collateral and he might be contradicted.</p> <p>3. The record of proceedings in bankruptcy is only primfi, facie evidence of the facts stated in it and may be contradicted by parol.</p> <p>4. A purchaser at sheriff’s sale acquires' the interest of the defendant at the date of the judgment, although he may have been adjudged a bankrupt before the sale.</p> <p>5. The court charged that a judgment under which the land was sold being for purchase-money to the defendant, there was no exemption under the Bankrupt Law. Held to be correct.</p> <p>6. The Court of Common Pleas in which a judgment is entered has jurisdiction after the defendant has been adjudged bankrupt, and a sale by the sheriff would pass a perfect title to the purchaser.</p> <p>7. The assignee in bankruptcy is not a judicial officer, his setting apart exempt property is not conclusive.</p> <p>8. The assignee’s setting apart land as exempted, does not divest the lien of judgment clear of exemption.</p>

<p>1. A contract made by county commissioners within the scope of their authority is binding on the county, although not made at their office.</p> <p>2. Two commissioners have power to make a contract if made in their capacity as commissioners.</p> <p>3. County commissioners contracted with Dickey to build a court-house, he contracted with Slagle for bricks and neglecting to pay, Slagle refused to deliver them. Two of the commissioners told Slagle if he would deliver the bricks they would pay him. The jury found that they made the promise officially. Reid, that the promise was not within the Statute of Frauds and that the county -was bound.</p>

<p>1. Calls in a deed are always to be controlled by lines on the ground.</p> <p>2. Heath sold a subdivision of a warrant, marking the east line on the ground, west of the east line of the warrant; the deed called for the east line of the warrant as the boundary. Held, that the call was controlled by the marked line.</p> <p>3. Heath brought ejectment for the portion — which was unseated — east of the subdivision and recovered a verdict and judgment; a habere was not issued. Held, that he might maintain trespass on his constructive possession.</p> <p>4. Caldwell v. Walters, 10 Harris 280, distinguished.</p>

<p>Error to the Court of Common Pleas of Jefferson county: Of October and November Term 1869, No. 5.</p> <p>On the 16th of April 1860, Alexander Colwell obtained judgment in the Court of Common Pleas of Jefferson county against Thomas N. Neil for $1689.62. After a fi. fa. and sale of the defendant’s property in Jefferson county, the plaintiff, on the 8th of May 1863, issued a testatum fi. fa. to Indiana county, which was entered of record there on the 11th of June 1863, and the sheriff levied on the real estate of defendant in that county; the land was condemned June 24th 1863, and the inquisition approved May 11th 1865. A testatum vend. ex. was issued May 13th to the same county, which was filed of record there June 5th 1865. On the 26th of August, one of the associate judges of Indiana county “ enjoined the writ the injunction was dissolved September 16th. On the 23d of September, an alias testatum vend. ex. was issued to Indiana county, finder which the-defendant’s land was sold on the 8th of December 1865 to John A. Colwell and James E. Brown. On the 16th of February 1866, the defendant obtained a rule to show cause why the alias testatum vend. ex. and all the proceedings on it should not be set aside, on the ground that before it issued, the lien of the judgment of the 16th of April 1860 in Jefferson county had expired. The rule was discharged September 14th 1867.</p> <p>Discharging the rule was assigned for error, the defendant having removed the proceedings to the Supreme Court.</p>

<p>Error to the Court of Common Pleas of Clarion county: No. 88, to October and November Term 1870.</p> <p>This was an action of assumpsit by The County of Armstrong against The County of Clarion, commenced October 80th 1869, for contribution under the following circumstances:— .</p> <p>At Rockport Mills there is a public bridge over Red Bank creek which is the dividing line between Armstrong county and Clarion county, the bridge is consequently to be maintained at the joint expense of the two counties. In 1860 the commissioners of both counties received notice that the bridge was out of repair; they made a joint examination of it, and directed some slight repairs which were done at the joint expense of the two counties. Not long afterwards the bridge broke down whilst John A. Humphrey was crossing with a two-horse wagon and severely injured him. To March Term 1862, he brought an action for negligence against the county of Armstrong. The commissioners of that county gave notice of the bringing of the suit to the commissioners of Clarion, and called on them to assist in its defence, which was not done. A verdict was recovered December 16th 1868 against Armstrong for $1100, which, with the costs amounting in all to $1597.31, Armstrong county paid. The commissioners of Clarion were called on to contribute their proportion to this payment, which they declined to do.</p> <p>On the trial before Campbell, P. J., these facts were proved or admitted, when the court, on motion of the defendant, directed a nonsuit on the ground that there was no contribution between wrongdoers. This was assigned for error by the plaintiffs, on the removal of the case to the Supreme Court.</p>

10, to October and November Term 1870. This was an action of ejectment, brought October 27th 1864, by the County of Erie against James Evans, for a piece of land “ 131.6 perches in length by 60 feet in width, situated between the west line of the 100 acres selected hy the commissioners of the county of Erie and the west line of the third section of the town of Erie, and in the said third section of the town of Erie.” The plaintiffs claimed that the strip was part of the…

21, to October and November Term 1871. On the 31st of October 1867, James H. Hays brought .an action of ejectment against Plenry Brown 'for 312 6-10 acres of land in Polk township. The trial was December 15th 1869, before Campbell, P. J. The plaintiff claimed the land in controversy as part of warrant No. 4023, dated August 30th 1793, to John Nicholson for 1000 acres and survey September 31st for 1026 acres, 70 perches, returned and accepted August 14th 1794.

<p>Appeal from tbe Court of Common Pleas of Erie county: In Equity: No. 218, to October and November Term 1869.</p> <p>,On tbe 1st of April 1853, Elihu Marvin, of the city of Erie, for the consideration of $450, contracted by articles to sell to Thomas Zirkenbach a lot of land described in the article containing 3 acres. The payments were to be made in four equal annual sums with interest and the deed to be delivered on the 1st of April 1857. On the 5th of May 1864, by an endorsement on tbe articles, Zirkenbach assigned all his interest in them “for value received” to Leopold Seichrist, and directed Marvin to deliver a deed to Seichrist when the purchase-money should have been paid.</p> <p>On the 7th of October 1867, Zirkenbach filed a bill against Seichrist, setting forth that soon after his agreement with Marvin he took possession of the lot, erected buildings and continued in possession of the whole until the assignment to Seichrist, and after that time of 1 acre and 39 perches, and had paid to Marvin part of the purchase-money; that not being able to make the payments to Marvin according to the articles, he agreed by parol to sell to Seichrist a portion of the land, and both fixed a division line on the ground and together asked Marvin to execute to Seichrist a deed for the portion of the land which he was to have ; that Marvin having already prepared a deed for the 3 acres to be delivered to Zirkenbach, was unwilling to cancel it and make deeds to Zirkenbach and Seichrist for their respective portions, but proposed to make a deed for the whole to Seichrist, and when the purchase-money should be paid in full, and Zirkenbach had paid Seichrist the portion of the purchase-money due for his part, then Seichrist should deliver to Zirkenbach a deed for his portion; that at that time at the request of the parties Marvin ascertained that after deducting the payments made, there were due on the articles $648, and it was then agreed the payment per acre should be $216; that it had been agreed at the time of the parol agreement between Zirkenbach and Seichrist, that the dividing line should be accurately ascertained by an engineer; that the line was afterwards located by two engineers, and that the division gave to Zirkenbach 1 acre and 39 parches and to Seichrist 1 acre and 121 perches; that the parol agreement was that Seichrist should hold Zirkenbach’s portion of the land in trust for him and for his own portion; Seichrist was to pay $216 per acre, and in addition thereto $35, which would be $233.65 to be paid by Zirkenbach and $414.35 by Seichrist; that the assignment was executed to carry out this agreement; that Zirkenbach’s possession, cultivation and improvements .since the assignment had been with the knowledge of Seichrist, who erected a fence on the dividing line, and had since occupied his portion of the land; the bill set out the precise boundaries as agreed upon between the parties. He averred that before commencing proceedings, he tendered a deed to Seichrist for execution and also $285, Seichrist refused both, &c. The prayer was for specific performance of the parol agreement, Zirkenbach offering to pay the money due by him.</p> <p>The answer averred that there was no agreement at Marvin’s as averred by Zirkenbach; that by the original parol agreement Seichrist was to pay $200 per acre; that shortly afterwards Zirkenbach said he had been offered $625 for the lot, Seichrist offered him $635 which Zirkenbach accepted, it admitted that they fixed a dividing line ; denied any agreement that Marvin should convey to Seichrist to hold part in trust for Zirkenbach as alleged in the bill, or that the assignment was made to carry out the agreement; it averred that Marvin asked Seichrist if he would take the land for what was due, deducting what Zirkenbach had paid; $648 was found to be due; Seichrist agreed to take the land at that price and to pay $5 for the deed which had been prepared for Zirkenbach; the assignment was then made; it was absolute without any reservation; a deed was on the same day executed by Marvin to Seichrist, who paid $150 in cash and gave a bond and mortgage for $498, the balance ; Seichrist then told Zirkenbach that if he could pay for the part occupied by him before the mortgage should be paid off, Seichrist would convey it to him at the price he, Seichrist, had paid.. The answer admitted the possession of Zirkenbach as set out, but denied that it was under any agreement and trust. Seichrist paid the mortgage August 7th 1867; Zirkenbach never paid anything, and Seichrist notified him that as he had failed to comply, his proposal to convey was withdrawn, and that he must pay rent; and after this Zirkenbach erected a small barn worth not more than $25; denied erecting a fence on the dividing line. Testimony was taken on both sides, that taken by Zirkenbach sustained very fully the allegations in the bill. There was not much testimony tending to establish the material allegations of the answer or to disprove the averments of the bill. There was evidence that Zirkenbach agreed to pay Seichrist an additional sum for his trouble and the expense he had been put to for the surveyors.</p> <p>The court (Vincent, P. J., delivering the opinion) made the following decree:—</p> <p>“ We therefore order and decree, that the defendant execute and deliver to the plaintiff a good and sufficient deed, in fee simple, for the land in controversy, within ten days after the plaintiff shall have paid to the prothonotary of the Court of Common Pleas of Erie county, the sum of $268.66, or at the rate of $216 per acre for 1 acre and 39 perches, with interest from May 5th 1864, subject to the order of defendant, and notify him of the same, and that the defendant pay the costs.”'</p> <p>Seichrist appealed to the Supreme Court and assigned the appeal for error.</p>

24, to October and November Term 1870. William Gardner and Ellen his wife in her right, brought an action of replevin May 22d 1867, against John Musser, for one mare, one horse, one cow, one wagon and one set of harness, of the value of $300. The defendant pleaded “ property.” The allegation was that the property, which had been sold by the husband to the defendant, belonged to the wife.

26, to October and November Term 1870. The case in the court below was an action of ejectment, commenced January 23d 1867, by Alfred Russell and Julia Ann his wife, Austin J. Kennedy and Madison J. Kennedy, against De Witt Clinton Kennedy, for 3-9 of 200 acres of land in Wayne township.

78, to October and November Term 1869. This was an action of ejectment for 100 acres of land brought, May 8th 1866, by Valentine Krise against John Noal, Washington Neason and James Neason. The plaintiff, on the 28th of August 1857, became the owner of about 200 acres of land.

<p>Error to the Court of Common Pleas of Armstrong county: No. 26, to October and November Term 1869.</p> <p>On the 80th of March 1867, Robert Cassidy brought an action of assumpsit against Felix McManus and James Gr. Henry, partners as McManus & Henry.</p> <p>The action was to recover the balance due on 2035 railroad ties delivered to the defendants under a contract under seal, made between the parties on the 9th of May 1866, by which the plaintiff bound himself to deliver to the defendants 2000 ties, described in the agreement, to be inspected and approved: in consideration of the plaintiff performing his covenants for delivering the ties the defendants agreed to pay him 60 cents per tie.</p> <p>The plaintiff gave in evidence that he had delivered, under the contract, 2035 ties of the kind and in the manner stipulated in the contract. The ties amounted to $1221, of which $1047.74 had been paid to the plaintiff.</p> <p>. The defendants gave evidence in answer to the plaintiff’s case, and submitted this point:—</p> <p>Unless the jury believe that the sealed contract between the plaintiff and defendants was abandoned by both and all the parties, the plaintiff cannot recover.</p> <p>The court (Buffington, P. J.) denied the point, and reserved it. He further charged:—</p> <p>* * * “No doubt the plaintiff might have brought his action on the special agreement, but we are of opinion [he may sustain the present form of action if he fully performed the agreement on his part by furnishing the entire number of ties agreed upon.] There are cases where assumpsit will not lie. Where the plaintiff seeks to recover on an executory contract which has not been entirely fulfilled on his part and has not been virtually rescinded by the1 defendant, [the action must be founded on the special agreement. But not so where the agreement has been entirely complied with by the plaintiff, the consideration on his part entirely executed, nothing left unfinished and nothing to be done by defendants but simply to pay the amount agreed upon.] Especially is this the case where the contract has been more than fulfilled by the plaintiff, and accepted and enjoyed by the defendant. [If the jury, therefore, believe that the contract was fully complied with by the plaintiff, by the delivery of the number agreed upon, or a number exceeding that agreed upon, which were accepted, inspected and approved, we are of opinion that he may recover in this form of action for the entire number so delivered and inspected.] And we further are of - the opinion that the written contract may be-resorted to, to fix and ascertain the measure of damages. If, however, the jury should fail to find the contract to be completed by the plaintiff, he cannot recover.” * * *</p> <p>The jury found for the plaintiff $183.65, and the court after-wards entered judgment on the verdict for the plaintiff on the reserved point.</p> <p>The defendants took a writ of error, and assigned for error the denial of their point and the parts of the charge in brackets.</p>

27, to October and November Term 1869. To September Term 1864 a suit in assumpsit was commenced and entered on the record, with attorneys’ names in the margin as follows:— ‘Boggs.

L34, to October and November Terms 1870. This was an action of ejectment, brought November 10th 1866, by George Rowley and Sarah Rowley his wife in her right against Dominick Hugh and others.. The case was tried June 10th 1869. The title to the land in controversy was in Sarah Rowley; it had been sold by the sheriff under a judgment against the husband ; the defendants claimed under the sheriff’s vendee.

This was an action of ejectment by James Kinley, by his guardian James Hunter, against Harrison Grourley and Sarah Grourley, brought to June Term 1868. James Kinley, being the owner of the land in controversy, died intestate, leaving a widow, Sarah, defendant (who afterwards married Harrison Grourley, the other defendant), and a son, the plaintiff, for whom James Hunter was appointed guardian by the Orphans’ Court. The wife continued in possession of the land.

41, to October and November Term 1869. On the 21st of February 1867, Hugh Brady presented a petition to the Orphans’ Court, representing, “ That on the 13th of February 1864, Joseph Brady, of the same township, entered into an article of agreement, in writing, to sell to your petitioner a certain tract of land situate in Hempfield township, on which the said Joseph Brady then resided, adjoining lands of James Brady, of which this was formerly a part,” &c., containing about…

51, to October and November Term 1870. This was a feigned issue to try the validity of a writing purporting to be the will of John Boyd, deceased. It was framed, March 12th 1869, between John Boyd, Jr., and David Longenecker, executor of John Boyd, deceased, plaintiff, and Margaret Boyd, by her guardian, defendant.

67, to October and November Term 1870. This case was an action of ejectment brought by James P. Tanner against S. D. Karns, John Karns, Fullerton Parker and William J. Parker, to March Term 1868. Subsequently the plaintiff died, and June 12th 1869 Frances E. Tanner his executrix was substituted: on the 8th of March 1870, “ executrix” was stricken out, and “purchaser of the interest of James P. Tanner at sheriff’s sale,” substituted.

98, to October and November Term 1870. This was an action of ejectment by William Armor and others, children and heirs of Jane Armor, late Cochrane, deceased, against John Cochrane and others, brought January Í2th 1869, for an undivided eighth part of 270 acres of land. John Cochrane, the elder, died in 1816, leaving eight children, amongst whom were John, William and Jane.

<p>Appeal from the decree of the Court of Common Pleas of Indiana county: No. 211, to October and November Term 1870. In the distribution of the proceeds of sheriff’s sale of the personal property of James W. Mahan.</p> <p>On the 25th of February 1868, Henry Kinter leased a tavern to Mahan for one year from the first day of the following April, at the rent of $475, payable quarterly. ’ Henry Kinter died in September 1868, devising the tavern to his wife Catharine for life. There was a receipt without date on the lease, by one of the executors, for $160, “ leaving a balance due on 1st and 2d quarterly payments of $44.”</p> <p>On the 17th of February 1869, the widow leased the same premises to Mahan for one year from the next 1st of April, at the rent of $475, payable quarterly. The amount due April 1st 1869 to the widow under the lease to her husband and the devise was for three quarters, or $356.25. Executions, one at the suit of William Sims, for $475, were issued against Mahan, and his goods levied on. Up to the day of sale, December 17th 1869, various payments had been made to Mrs. Kinter, and on that day she gave the sheriff notice that there was due to her for rent in arrear the sum of $243.26, wbicb was in fact less than was due to her. Tbe proceeds of tbe sheriff’s sale were brought into court. Tbe auditor to whom tbe distribution was referred, awarded $243.26 to Mrs. Kinter, and after awarding tbe amount due on another execution and costs, reported $39.89 to Lewis. Tbe Court of Common Pleas confirmed tbe report.</p> <p>Lewis appealed to tbe Supreme Court, and assigned tbe decree of confirmation for error.</p>

70, to October and November Term 1870. This was a scire facias sur recognisance in the Orphans’ Court, by Thomas Stephens, to the use of Peter Byers, against James Campbell, John Mortland, B. Wilt and William Colwell.

179, to October and November Term 1870. This was a question of costs in an action of ejectment, which was commenced, July 29th 1865, by Henry Lane against Bennett Lane and Elizabeth Harrold. On the 9th of October 1866, arbitrators awarded for the plaintiff; the defendants appealed and pleaded “Not guilty.” The case being on the trial list, May 24th 1866, Lane disclaimed any title in the land.

. 21, to October and November Term 1869. This was an action of assumpsit, to April Term 1854, by John Gilmore against David Hunt on three promissory notes.

<p>1. A devise was “ to my daughters Christiana and Phoebe, the house I now live in * * * and 20 acres of land. * * * The 20 acres that I have willed to my daughters, to have during their lifetime, at their death to have the privilege to will to my daughter Sarah Kerr's children, or my son Thomas verner’s children, just as they see proper.” The daughters took an estate for their joint lives, in such wise that the share of the one first deceased should enure on her death for the benefit of the survivor.</p> <p>2. Christiana died intestate, Phoebe devised the 20 acres to a son of Thomas. Held, that the power was well executed.</p>

18, to October and November Term 1869. This was an action of trover commenced, January 31st 1868, by William D. Williams against Reuben Bartley. The plaintiff and defendant and one John M. Addy had been partners in the plumbing business, having one of their shops in Manchester, Allegheny county.

115. This was an action of assumpsit, to March Term 1866, by G-. H. Tower and William Ward against James O’Neil. The action was founded on the following instrument:— “ I hereby authorize and empower Gr. II.

19, to October and November Term 1869. This was a scire facias on a mechanic’s lien, issued June 18th 1868, by William Burke and David Glass, partners, &e. against Francis L. Lee, owner, and Duncan & Waughter, contractors.

<p>Error to tbe District Court of Allegheny county: No. 54, to October and November Term 1869.</p> <p>This was an action of assumpsit to April Term 1868, by William Smith against The Youghiogheny Iron and Coal Company, for failure to deliver iron under the contract hereafter mentioned. The plaintiff’s evidence was, that in June 1867 the defendants made two contracts to deliver to him good, gray, soft Youghiogheny iron: one contract was for 100 tons, the other for 400 tons, the president of the company, Mr. Wickersham, promising to haul it at once. The plaintiff gave his notes for the iron at four, five and six months. A third contract was made in August with Mr. Wickersham for 500 tons more of the same kind of iron as the former, to he delivered as fast as the plaintiff should require it; three notes were given for this iron at four, five and six months. The iron was not delivered in season, and in consequence the notes had to he renewed, Mr. Wickersham promising to pay the discount, amounting to $500.14; the iron delivered on the last contract was of very inferior quality; the plaintiff had to go into the market to obtain other iron “to supply its place, and sustained “a severe loss.” The iron was shown to Wickersham ; he said the iron was not good; “ the company would make it all right, Mr. Smith should not lose by it;” he told .the plaintiff to lay the inferior iron by; he took a few loads back. The notes were at Wickersham’s request made to him instead of the company ; they had been paid by the plaintiff.</p> <p>The defendant gave evidence that the company’s iron was sent to Wickersham to sell on commission which was paid him in addition to his salary; orders were never received at the furnace; its product was sent to him and he sold it; he was financial agent of the company; he collected the money for iron sold, and applied it to the liabilities of the company.</p> <p>The defendant’s points and their answers were:—</p> <p>1. “ The plaintiff, having brought an action of assumpsit, and having neither alleged nor proved a warranty, cannot recover in this action without returning, or offering to return the iron ; and if the jury believe from the evidence that the plaintiff, notwithstanding his dissatisfaction with the quality of the iron, finally concluded to retain and use the same, he is precluded in law from subsequently recovering damages for an alleged defect in quality.”</p> <p>2. “ The evidence of R. H. Smith, one of the plaintiff’s witnesses, that Wickersham, the president of the company, told the plaintiff to put the defective iron aside, and that the company would act so that the plaintiff would suffer no damage, will not enable the plaintiff to maintain this action, unless the jury are satisfied from the evidence that the plaintiff closed with the proposition, and actually put the objectionable iron aside for the defendants ; but if the jury believe that the plaintiff did not accept or rely upon the said proposition, but, from fear of the company’s solvency, or for any reason that seemed good to him, elected to retain and use the iron, he cannot now complain and recover damages, hut the verdict should be for the defendant.”</p> <p>Answer to 1st and 2d points: “ If you believe from the evidence that Wickersham agreed, in consideration that the plaintiff would give him his negotiable notes in advance, to deliver to him 500 tons of ‘ good, gray, soft Youghiogheny iron,’ as fast as it could be manufactured at the furnace, and if the plaintiff then gave his notes, which were discounted immediately, and the proceeds received by the defendant; and .if, when the iron came to be manufactured and delivered, it was found not to be ‘ good, gray, soft Youghiogheny iron,’ but a white iron, made of cinders, and of a very inferior quality —so much so that it could not be used by the plaintiff in carrying on the kind of business for which it was purchased; and if he frequently notified defendant of these facts, and requested him to take the iron away; and if the defendant did not do so, but requested the plaintiff to let it remain on his premises, and promised that he would make it all right with him, so that he should lose nothing by it; and if the iron was left there under these promises, and the defendant neglected either to take it away, or to supply its place with such iron as he had contracted to deliver, for an unreasonable time; and if the plaintiff was compelled to go into the market and buy iron in its place, to enable him to carry on his works — then, when the plaintiff, as in this case, has paid in advance, he may, in order to secure himself as far as he can, use the metal for such purpose as he may think proper, and bring suit against the defendant for the difference between what this white iron was worth in the market, and what he was obliged to pay for iron to supply its place.”</p> <p>4. “If the jury believe, from all the evidence in the case, that the contract was made with Wickersham as an individual, and that the plaintiff, at the time of the contract, looked only to Mr. Wickersham as the party with whom plaintiff dealt, plaintiff cannot maintain an action 'against defendant, but his remedy is against Wickersham alone.”</p> <p>Answer: “ We may as well first dispose of the question 2*aised by defendant’s 4th point, as to whether this action can be maintained against the defendant. There is no conflicting testimony on this question. Taking all the testimony to be true, the jury will be warranted in coming to the conclusion that Mr. Wickei’sham had power to make this contract for the company — and that it was binding on it — and therefore as far as this question is concerned, the plaintiff is entitled to the verdict.”</p> <p>The court (Hampton, P. J.) further instructed the jury:—</p> <p>“ You may find for the plaintiff the difference between the true market value of the 300 tons of white iron and the true market value of the same amount of ‘good, gray, soft iron,’ if the plaintiff was obliged to pay that much to supply the place of the other, with interest.”</p> <p>The verdict was for the plaintiff for $3209.</p> <p>The defendants took a writ of error and assigned for error the answers to their points and the part of the charge given above.</p>

<p>1. The end of a railroad track was over a passage way in a yard from a rolling-mill through which wheelbarrows, trucks, &c., frequently passed from the mill. A car was negligently pushed over the end of the track and killed a boy playing in the passage. He had been frequently warned not to be in the passage on.account of danger from the trucks, &c. His not heeding the warning was not contributory negligence with respect to the car.</p> <p>2. He was not guilty of contributory negligence with respect to the cars uuless there had been some reason to expect danger, and there was a duty of care on his part in relation to it.</p>

<p>1. In an action on a bond for purchase-money of land, evidence for defendant, that the land was to be the basis of an oil and mining company, that the sum secured was to be paid when realized from the sale of stock or if the stock could not be sold from the products of the land, was admissible.</p> <p>2. The jury found for the plaintiff, “the lien, &c., of the judgment to be confined to the proceeds of sale of the stock and products of the land,” &c. Held to bo proper.</p> <p>3. Aycinena v. Feries, 6 W. & S. 243, Irwin v. Shoemaker, 8 Id. 75, recognised.</p>

<p>1. If the part of a contract to be performed by one party consists of several distinct items and the price to be paid by the other is apportioned to each item or is left to be implied by law, ordinarily it is a severable contract.</p> <p>2. If the consideration is single and entire, the contract is entire, although it may consist of several distinct and independent items.</p> <p>3. The consideration to be paid, not the thing to be performed determines the class to which the contract belongs.</p> <p>4. The contract in this case was held to be severable.</p>

135. This was an action of assumpsit brought, July 18th 1867, by William P. McCabe against John Burns and Samuel Stevenson, to recover $250 paid by the plaintiff as part of the subscription price of a share of stock in an oil company, paid under fraudulent misrepresentations.

189, to October and November Term 1869., This was an action of assumpsit to September Term 1868 by James Gibbs against Zedick Hultz.

Pleas of Venango county: No. 153, to October and November Term 1870. This was an action of assumpsit, brought to April Term 1868, by Plumer. Haworth against H. Newell, for an engine, tools, &c., for sinking an oil-well in a leasehold which the defendant owned.

64, to October and November Term 1869. On the 1st of April 1867, Margaret McClurg presented a libel for divorce against Alexander McClurg. The libel set out the marriage of the parties on the 1st of July 1845, their cohabitation as man and wife until July 1st 1864, the desertion of the respondent from that time, and that before that date he had offered such indignities to the person of the libellant as to render her condition intolerable and her life burdensome.

<p>1. A lessee, from a lessor whose premises were subject to forfeiture for non-payment of a coal royalty and other debts, much being in arrear, in consideration of the lease covenanted to pay the royalty in arrear and accruing rent and the other debts. Suit was brought on his covenant, he could not set off debts due by the lessor to him.</p> <p>2. A party may debar himself by agreement express or implied from pleading a set-off.</p> <p>3. A covenant being under seal an action upon it can be brought only in the name of the covenantee.</p> <p>4. Such suit may be for the use of those beneficially interested; the court will control the execution, so that the money shall be appropriated as agreed on.</p> <p>5. The sums to be paid to others were not rent, but were payable immediately or within a reasonable time, being the consideration, of the grant.</p> <p>6. The lessee by the covenant as between him and the lessor became the principal debtor and the lessor the surety.</p> <p>7. As soon as a surety’s obligation becomes absolute he may require the principal to exonerate him, although the creditor may not have demanded payment.</p> <p>8. Vesting a separate equity jurisdiction in the courts has not changed the rule that equity is part of the law of Pennsylvania and may be administered by common-law forms.</p> <p>9. The obligee in a bond to indemnify against claims may sue as soon as a claim is made, without waiting for judgment or even till a suit be commenced.</p> <p>10. A corporation unless expressly restrained by law has an unlimited power over its property and may dispose of it as fully as a natural person.</p> <p>11. An insolvent corporation may make an assignment for the benefit of creditors; the power may be exercised by its directors.</p> <p>12. Omne majus continet in se minus, applied.</p> <p>13. Reed v. Penrose, 12 Casey 214, remarked on.</p>

120, to October and November Term 1869. This was an action 'of assumpsit brought, January 7th 1868, by John M. Ewing and Sarah his wife in her right, against Alexander B. Thompson, administrator, &c., of Daniel Morgan, deceased.

<p>Error to the District Court of Allegheny county: No. 128, to October and November Term 1870.</p> <p>This was an action on the case for deceit, commenced November 20th 1868, by Joseph Heastings against John McGee.</p> <p>The declaration contained but one count, viz., “that the defendant was the owner and possessor of one horse, which, if sound, was of the value of $100, but which said horse had a dangerous, contagious, incurable disease called glanders, which the said defendant then and there we'll knew, and which said disease rendered ^valueless and unfit for sale, and a dangerous common nuisance; and the said defendant, craftily and subtlely, contriving and intending to cheat and defraud the said plaintiff in that behalf, did offer said horse to the said plaintiff for sale, and by deceitfully, fraudulently and unlawfully concealing the fact that said animal had said disease, and fraudulently representing to said plaintiff, and inducing him to believe that said animal was of usual and ordinary health and soundness, induced said plaintiff to buy said horse, and for the same then and there, by the means aforesaid, procured from said plaintiff the sum of $100 as the price and value of the horse aforesaid, &c., to the damage of the plaintiff,” &c.</p> <p>The plaintiff gave evidence, to show that the horse had the glanders incurably, that the disease was contagious, and that after keeping him some days he had him killed.</p> <p>There was no offer to return the horse.</p> <p>The defendant requested the court to instruct the jury that the plaintiff having failed or neglected to offer to return the horse to the defendant, but on the contrary having retained and destroyed the animal without having made any such offer, cannot maintain this action for the purchase-money.</p> <p>The court (Hampton, P. J.) reserved the point, and charged the jury “ that if they believe the horse in question was fatally diseased at the time of the sale, and that the defendant knew it, then the plaintiff is entitled to recover the amount paid for the same, with interest from the time of sale; and if they find for the * plaintiff they will so find, subject to the opinion of the court on the question of law reserved.”</p> <p>The jury found for the plaintiff $103.50.</p> <p>The court in banc afterwards entered judgment for the defendant on the point reserved non obstante veredicto.</p>

<p>1. The difference in the result produced by a model and its imitation is corroborative of a difference between them.</p> <p>2. The rule is especially applicable to things known only to experts.</p> <p>3. A fact which directly proves the truth of an assertion may be adduced to corroborate and confirm it.</p> <p>4. Where the question is, was an article made according to a model, its want of power to produce the same result is evidence that it was not so made.</p>

<p>1. In an action for death by negligence, it is not necessary in the first place to disprove contributory negligence in the deceased.</p> <p>2. If negligence appears by the plaintiff's testimony the defendant may rest upon it.</p> <p>3. Love of life and the instinct of preservation being the highest motive for care, they will stand for proof of it, until the contrary appear.</p> <p>4. The statutory rule since the Act of April 4th 1868 is that exemplary damages cannot be recovered, but only compensation for loss which, has been pecuniarily suffered.</p> <p>5. Whether the statute applies to injuries not resulting in death, damages for which are a common-law right, not decided.</p> <p>6. Damages for death are exclusively statutory and are capable of restriction and limitation by the legislature.</p> <p>7. In an action by a parent for the death of a child, damages may be recovered for nursing, medical expenses before death and funeral expenses.</p>

<p>1. Mere precatory words will not convert a legatee or devisee of an absolute gift, into a trustee unless it affirmatively appear they were intended to be imperative.</p> <p>2. Words expressive of desire, &c. as to the direct disposition of the estate, will constitute a bequest or devise.</p> <p>3. All expressions in a will indicative of a testator’s wish or will are commands.</p> <p>4. A clause in a will was “I desire that all my just debts, and those of Herron Brothers, be paid as soon as conveniently can be after my dissolution." Held, that this was a direction that the debts of Herron Brothers should be paid out of his estate.</p> <p>5. The direction was not an assumption of the debts by which his estate was charged, but a legacy to the creditors of Herron Brothers as a class.</p> <p>6. The law courts had jurisdiction to enforce payment of the legacy.</p> <p>7. The jurisdiction of the Orphans’ Court is exclusive only when the legacy is charged on land.</p>

<p>Writs of error to the Court of Common Pleas of Allegheny county: No. 151 and 175, to October and November Term 1869.</p> <p>On the 14th of April 1868, Robert McClinton presented his petition to the Court of Common Pleas, setting out his ownership of a tract of land; that in 1850 and 1851 the Ohio and Pennsylvania Railroad Company surveyed and built a railroad for about 1900 feet in length over said' tract, and it had been used for a railroad ever since; that some years afterwards the Pittsburg, Fort Wayne and Chicago Railway Company became owners of the railroad, and had continued to use it for railway purposes since; that in 1851 the first-named company appropriated about 25 perches of the petitioner’s land, and by legal proceedings $50 were assessed as his damages which had not been paid; that no legal appropriation had been made for the remainder of his ground used for the railroad. The petition further set out that he had been unable to make any arrangement for his damages, and prayed for viewers to assess the damages, &c.</p> <p>The Pittsburg, Fort Wayne and Chicago Company excepted to the petition, “ because it appears therein that the cause of action complained of did not accrue within six years before said petition was filed.” The court, May 5th 1865, quashed the petition for the reasons stated in the exception.</p> <p>The petitioner took a writ of error, and assigned for error the quashing of his petition.</p> <p>■ In 1868 McClinton commenced an action of ejectment against the same company for “a strip of land about 1900 feet long and 40 feet wide;” the same land mentioned in the petition.</p> <p>The case was tried, June 26th 1869, before Stowe, J. The plaintiff proved his title to the land ; that the road was constructed by the Ohio and Pennsylvania Railroad Company about 1850 for about 1900 feet through his land; that a small portion was by legal proceedings in 1851 appropriated, and damages assessed at $50; the remainder of the land used for the railroad was on the bed of a public road; the public road was afterwards changed by proceedings in the Quarter Sessions, and laid out on the plaintiff’s land, the company agreeing, in writing, to pay him $500, which had not been done.</p> <p>The defendants gave evidence of the incorporation in 1848 of the Ohio and Pennsylvania Railroad Company by the states of Ohio and Pennsylvania; and the taking of the ground in disputo for railroad purposes in 1850 and 1851. In September 1852 “ The Ohio and Pennsylvania Railroad Company and other companies were consolidated under the name of The Pittsburg, Port Wayne and Chicago Ráilroad Company.” In January 1857 the new company executed a mortgage on their entire property to secure bonds amounting to $10,000,000. On the 24th October 1861, the railroad was sold under the mortgage to J. Edgar Thomson and others. On the 25th of February 1862 the defendants were organized under authority of a law of Pennsylvania, passed March 31st 1860, and on the 2d of March the purchasers of the road sold it to the defendants. The parties agreed that about 15 perches of the ground described in the writ are not on the bed of the old public road, and that the rest is on the bed of that road.</p> <p>The court instructed the jury to find for the plaintiff, reserving the question whether, under all the evidence in the case, he was entitled to recover.</p> <p>Judge Stowe directed a judgment for the defendants on the reserved point, non obstante veredicto, saying: “Without undertaking to say that an action of ejectment will not lie in this case, because the plaintiff should be kept to the remedy pointed out by the statute in relation to damages accruing by the taking of land by railroad companies, I think, as more than six years have elapsed, that the Statute of Limitations is a bar to this action.”</p> <p>The plaintiff took out a writ of error, and assigned for error: — ■ Entering judgment for the defendants.</p>

<p>Appeal from the decree of the District Court oí Allegheny county: In Equity: No. 152, to October and November Term 1869.</p> <p>¡, This was a bill filed October 1st 1868, by David Boyd and seventy-three other persons against Philip R. Kincaid, Richard Parker and William Yankirk.</p> <p>The bill set out that the Methodist Episcopal Church of Pitts-burg, incorporated in January 1884, purchased from John Keating, a lot on the plan of lots on Grant’s Hill, now in the 11th ward, Pittsburg, for a graveyard; that the church laid out the ground in walks, paths, and burial lots, numbering and marking the lots for sale, except a portion reserved for strangers; the lots were sold; the ground had been used for a cemetery since 1834 and ornamented by the lot-holders at a cost of many thousand dollars ; that the plaintiffs had bought or inherited lots in the cemetery ; that there was still room in some of the lots for burial.</p> <p>The following was a certificate for a lot to one of the plaintiffs, the same form being always used:—</p> <p>“ Pittsburg, April 18th 1835. This is to certify that David Boyd, a subscriber, in consideration of the sum of $10, by him paid to the trustees of the Methodist Episcopal Church of the city of Pittsburg, the receipt whereof is hereby acknowledged, is entitled to two burying-lots in the burying-ground of said church, 8 feet wide by 16 feet long, and numbered in the plan of the same Nos. 31 and 32. To have and to hold the said lots for the use and purpose, and subject to the conditions and regulations mentioned in the deed of trust to the trustees of said church, in testimony whereof I hereby affix the seal of said church.”</p> <p>That the defendants, claiming to act under an Act of Assembly, in March, April and May 1868, without the consent of the plaintiffs and against their protest, dug up the greater part of the bodies in the stranger’s portion, and some in the lots, destroyed the shrubbery, monuments, &c., and were proceeding to take up the remainder, when they were stopped by the Board of Health, and that they threatened to continue, &c. The plaintiffs averred, that they, with other lotholders, are owners of nearly all the cemetery, having bought or inherited the same, and that whatever title the corporation held was for their use; that the Act of Assembly was unconstitutional. The hill further alleged that the defendants did not act according to the Act of Assembly; that they committed outrages in the removal, &c.</p> <p>The prayer was that the defendants might be perpetually enjoined from digging up and removing the dead, &c., and for general relief.</p> <p>The bill was sworn to by three of the plaintiffs.</p> <p>The defendants answered that they had removed a number of bodies, and purposed to remove the remainder, acting in so doing under two Acts of Assembly, copies of which they appended to their answer; that they had in all things endeavored in good faith to carry out the provisions of the acts, and had tried to meet the wishes of the friends of the deceased, by removing the bodies to such cemetei’ies as they designated; that they made an agreement with another cemetery to furnish suitable ground and inter some of the bodies; they denied outraging or otherwise improperly acting with the cemetery; that for several years the ground had been abandoned as a burial-place, the churches having charge of it being without income for the purpose, not keeping it in order but suffering the fences to go down; that it was advertised to be sold for municipal claims and would have been sold had not the defendants ' paid them; that it was exposed to daily intrusion and desecration; that its vacation as a burial-ground and sale for other uses was a matter of necessity, and the Act of Assembly was constitutional and proper. The answer averred, the neglect of the lots by the friends of those buried there; that the defendants had made many efforts to arrange the compensation with those interested; they had made reasonable offers but were met with unreasonable demands; that the city where the ground lies had been improving greatly; that part of the ground had been taken for a street, &e., &c.</p> <p>There were no injunetisn affidavits.</p> <p>The first Act of Assembly was passed April 18th 1867.</p> <p>It recited the purchase of the ground for a burial-ground for the church; that at the time of the purchase all the members of the church in Pittsburg belonged to one congregation, which had so increased that they had been organized into three congregations, the Liberty Street, the Smithfield Street and Wesley Chapel, each having its own charter and a separate board of trustees; that by direction of a corporation meeting on the 7th of June 1849 the burial-ground was conveyed to the three congregations to be held by them as equal tenants in common ; and that the interest of Wesley Chapel had since been transferred to the Centenary Board of the Pittsburg Conference of the Methodist Episcopal Church; that by the growth of the city, and the opening of incorporated cemeteries, the ground had ceased to be used for interments, many bodies had already been removed and it was necessary to remove the remainder, and to vacate the ground for burial purposes, &c.</p> <p>The 1st section forbade interments in the ground.</p> <p>The 2d directed the commissioners appointed by the act to purchase suitable lots in incorporated cemeteries and remove all remaining bodies and have them decently interred, and set up at the new graves the gravestones standing in the burial-ground, notice to be given of the intended removal.</p> <p>The 3d authorized the commissioners, after the removal of the bodies, to sell the burial-ground, and declared that the purchasers should be vested with “ a perfect and indefeasible fee-simple title, free and clear from all claims or interests of the same corporations and of all owners of lots in said burial-ground.”</p> <p>The 4th directed that the proceeds of sale should be appropriated, 1. to paying for the new lots and the expenses of removal: 2. compensation to lot-owners in the old ground: 3. The residue, after defraying other necessary expenses, should be distributed equally between the Liberty Street and the Smithfield Street congregations and the Centenary Board.</p> <p>The 5th provided that if the commissioners could not agree with lot-owners, the commissioners might apply to the Court of Quarter Sessions of Allegheny county, who should appoint arbitrators to examine the claims and report what should be paid to the lot-owners; their report, when approved by the court, should be final.</p> <p>The 6th appointed Edward Heazleton of the Centenary Board, and the defendants, Philip R. Kincaid of Liberty Street congretion and Richard Parker of the Smithfield Street congregation, commissioners. Heazleton having declined to act, William Van-kirk, the other defendant, was appointed in his place by Act of February 14th 1868.</p> <p>The case was heard before Hampton, P. J., who, in his opinion, after stating the allegations, &c., in the bill and answer, and the Act of Assembly, said:—</p> <p>* * * “ Here we have the naked question presented whether or not this act of the legislature is constitutional ? If it is, then the injunction to restrain the defendants from proceeding in a proper manner, under the act, must be refused, but if it is not, then it must be awarded.</p> <p>“ By the 4th section of the constitution it is provided that 4 the legislature shall not invest any corporate body or individual with the privilege of taking private property for public use, without requiring such corporation or individual to make compensation to the owners of said property, or give adequate security therefor before such property shall be taken.’</p> <p>44 Under this article it has been held by the Supreme Court that it is not necessary that the compensation to the owners should be actually ascertained and paid before the property is appropriated; but it is sufficient if an adequate remedy be provided by which he can obtain compensation, without any unreasonable delay.</p> <p>44 The latter clause of the 10th section of the 9th article declares, 4 Nor shall any man’s property be taken or applied to public use without the consent of his representatives, and without just compensation being made.’ And by the 9th section of this article it is declared that a person cannot 4 be deprived of his life, liberty or property unless by the judgment of his peers or the law of the land.’</p> <p>44 The words 4 taken’ and 4 deprived,’ in these two sections, hav6 been construed by the Supreme Court to mean one and the same thing. In Sharpless v. The Mayor of Philadelphia, 9 Harris 166, Black, C. J., says, 4 the word 4 take’ is one of the commonest and plainest in the language, and cannot easily be misunderstood by a lawyer or layman. As used in the constitution, it has universally, in this state and elsewhere, been interpreted to mean a taking altogether, a seizure, a direct appropriation, dispossession of the owner.’ In the same opinion he says, 4 the word 4 deprived’ in this section (sec. 9, art. 9) has received the same construction as the word 4 taken’ in section 10, and for reasons equally clear and strong.’</p> <p>44 Have these plaintiffs such a 4 property’ in their lots as is contemplated by the constitution ? They purchased and paid for them a great many years ago, took possession, ornamented and improved them, and have had the exclusive and continued possession ever since. Nor is this all. The president of the corporation, from which they purchased, under the seal of said corporation, gave each of them the certificate hereinbefore copied.</p> <p>44 It is not necessary that they should have a fee simple or any estate of a fixed and determinate period; nor is it necessary that the 4 property’ mentioned should be in land. It is enough if it be recognised as ‘property’ by the laws. Under the facts in this case, therefore, it cannot be alleged that they had not such property as would entitle them to protection.</p> <p>“Nor can it well be denied that, if the provisions of this Act of Assembly are carried out, they will be ‘ deprived’ of that property.</p> <p>“ The next question in order to be considered is — whether this Act of Assembly makes adequate provision for compensation to these lot-holders ? The 5th section contains the only provision on the subject. * * *</p> <p>“ These commissioners are not required to give bail, nor are they directed, in case of disagreement with the lot-holders, to apply to the court for viewers or arbitrators, before the property is sold, deeds made and money received ; nor is there any authority given to the lot-holders at any time, before or after their property is sold, to apply to the court for viewers; nor does it seem to be obligatory on the commissioners to apply. It says they ‘may,’ but even if that word ‘may’ were construed to mean ‘ must,’ it need not be done until after the purchasers are invested with a title in fee simple, clear of all claims of the lot-holders. Then the right of appeal is not allowed on the question of the value of these lots. Then, again, suppose the property should not sell for enough, after paying the expenses of' removing the dead and purchasing burial-grounds elsewhere, to pay the lot-holders the value awarded to them by the arbitrators, there is no provision for paying the deficiency. The loss must be borne by them, without any means of redress.</p> <p>“ These are a few of the reasons, but in my opinion, amply sufficient to show that adequate provision is not made for compensation to the owners of these lots; and for that reason, if for no other, this act of the legislature must be held to be unconstitutional and void.</p> <p>“ The only remaining question is — whether this property was taken for public use ?</p> <p>“ The only reason assigned by the legislature for the passage of the act is contained in the following clause of the preamble, viz.:—</p> <p>“ ‘ And whereas, by the growth of said city, and the opening of several incorporated cemeteries in the vicinity of said city, the said burial-ground has ceased to be used for interments, many of the bodies have already been removed, and it has become proper and necessary' to remove the remaining ones, to vacate the said ground for burial purposes, and to have the same sold and appropriated to other purposes.’</p> <p>“ These are the only reasons given. It is not alleged that this burial-ground is in any way injurious to the health of the city, but that persons hav.e ceased to bury there, and that, forsooth, is assigned as a reason for digging up and removing the bones of those who have been interred there. Is the rule to be established in this country that, whenever a graveyard has become full, the remains of the dead must all be removed and the ground sold out for building lots ?</p> <p>“ But it is alleged by these defendants that it stands in the way of the growth and progress of the city, and therefore it must be sold out for building lots. What interest has the public in this matter? Whether this sacred depository ■ of the dead shall be permitted to remain as it was, or whether it is to be sold out in lots and covered with dwelling-houses, is certainly a matter of very little moment to the community. If it is to he the settled practice of the state to remove the dead and sell out the cemeteries for private uses, whenever a town or city extends to and beyond the grounds, how long will it be before a similar act, for the same reasons, will be asked for, to sell the Allegheny or any other cemetery, now within the limits of the consolidated city ? Much stronger reasons could be urged for the sale of the Allegheny Cemetery than for this. It is much larger — embracing nearly 200 acres — with beautiful building sites nearly all over it. It presents a much more formidable obstruction to the growth and extension of the city in that direction; and then it would yield a much larger sum of money by selling it out in building lots, to go into the pockets of the corporators.</p> <p>“ But it is urged, as a reason for the passage of this act, by the defendants in their answer, that the city of Pittsburg had claims amounting to over $8000 for street improvements, with no means of payment, and that it was about to be sold by the sheriff, when the defendants advanced the money and paid off the debt.</p> <p>“ Another reason is assigned, that the city intend to open a street through this ground.</p> <p>“ Whether the city councils have or have not authority to do these things, I will not say, for it is unnecessary to decide this question at present. But on the 5th of April 1849 the legislature passed the following act, viz.:—</p> <p>“ ‘ Hereafter it shall not be lawful to open any street, lane, alley or public road through' any burial-ground or cemetery,within this Commonwealth, any laws heretofore passed to the contrary notwithstanding.’</p> <p>“ Under this act it has been held that a subsequent statute appointing commissioners to survey and lay out such streets within the limits of a borough, as they shall deem necessary, does not empower them to locate a street over any part of a burial-ground.</p> <p>“By another Act of the 5th of April 1859 it is provided that ‘ whenever any lot or lots, or the right of sepulture therein, shall be granted to any person or family, by any incorporated cemetery company, or church or religious congregation, within any common enclosure made by such company, church or congregation, as used for the purpose of the perpetual burial of the dead, every and all lots so disposed of or used for burial shall hereafter be free and exempt from all taxation, so long as the same shall be used or held only for the purpose of sepulture.’</p> <p>“ Whether the city fathers have obtained any recent legislation on this subject, giving them the power to tax this burial-ground to improve the streets, or to lay out streets through it, I know not, nor is it necessary at present to decide.</p> <p>“After the most careful and thorough investigation of this case, I have failed to discover the slightest interest the -public have in the removal of these remains, and the sale and conversion of the property to private purposes.</p> <p>“ For these reasons I am clearly of the opinion that the Act of Assembly under which the defendants claim their authority, is unconstitutional, null and void.</p> <p>“ Let a preliminary injunction issue, as prayed for, upon the presentation and approval of the proper bond.”</p> <p>The defendants appealed to the Supreme Court, and assigned the decree of the District Court for error.</p>

<p>Error to the Court of Common Pleas of Allegheny county: No. ‘ 154, to October and November Term 1869.</p> <p>This was an action of debt for $80, two years’ rent, brought to September Term 1868, by Samuel Dyer against Hugh Wightman.</p> <p>The defence was that the premises had been appropriated by the Western Pennsylvania Railroad Company.</p> <p>The case was tried before Mellon, J.</p> <p>The defendant gave in evidence a lease dated April 1st 1863, from Martha M. Smith to plaintiff, for a lot of ground in Allegheny City, bounded by the Pennsylvania Canal on the one side .and Washington street on the other, and lying between Federal and Sandusky streets, for five years, at $40 per annum; also, lease dated August 15th 1863, from plaintiff to defendant, for a part of this lot at the east end, until the 1st of April 1868, at the rent of $40 per annum.</p> <p>dThe defendant then offered in evidence the record of the proceedings for damages against the Western Railroad Company upon the petition of Mrs. Smith.</p> <p>The evidence was objected to by the plaintiff, admitted .by the court and a bill of exceptions sealed.</p> <p>The viewers reported that the company, about December 8th 1866, had taken for the use of their road the whole lot leased by Mrs. Smith to the plaintiff, with other property adjoining it, which was under another lease, at a rent of $150, which they mentioned in their report, and which lease they found had been assigned to the company. They did not refer in their report to the lease to the plaintiff. They assessed the damages payable to Mrs. Smith at $10,000, and concluded their report: “ whereupon the absolute title in fee is to be deemed vested in said railroad company, of and for said lot of land,” &e.</p> <p>The defendant testified that when the company were about to fence up the lot he notified the plaintiff that the lot would be of no further use; he had paid rent to the time of the possession by the railroad company; all that was useful to him had been taken, the company’s fence shut him out entirely; plaintiff said he would indemnify him.</p> <p>The court charged: “ If the railroad company, under their charter, appropriated the demised premises, and fenced up a portion of it without relinquishing the residue, the title and possession to the demised premises were changed thereby. Both the title of Dyer and Wightman, as well as the owner of the fee, was changed; each could recover the value of his or her particular interest or estate in the land from the railroad company ; but the relations of landlord and tenant between the parties was thereby extinguished, and their rights under such relationship ended.”</p> <p>The verdict -was for the defendant. The plaintiff took a writ of error and assigned the admission of the evidence and the charge of the court for error.</p>

<p>1. By partition the surface was severed from the underlying coal and the parts were allotted to different heirs, without any limitation as to the removal of coal. S'eld, that the owner of the coal could not remove it without leaving sufficient support for the surface. I</p> <p>2. The mining property is servient to the surface to the extent of sufficient supports to sustain it, and on default the owners and workers are liable for damages.</p> <p>3. To control the rule of the common law, an usage to mine without observing this duty, must be so ancient and uniform in the particular region as to amount to a custom.</p> <p>4. Such custom must be so ancient, that the memory of man runneth not to the contrary.</p> <p>5. The upper and underground estates are governed as other estates, by the maxim, sic utere iuo ut alienum non lados.</p>

<p>1. A draft on a bank to the order of the drawers passed into the hands of</p> <p>another bank, and was paid through the clearing-house, two days afterwards the signatures were found to be forged and repayment was demanded and refused. Held, that the first bank could recover from the second, under the Act of April 5th 1849, § 10. '</p> <p>2. A rule of the clearing-house was, “Errors in exchanges shall be adjusted by the banks concerned, and cheeks not'good shall be returned to the bank depositing them before one o’clock p. m.” This rule applied only to ascertaining that the account was not overdrawn.</p>

<p>Error to tbe Court of Common Pleas of Allegheny county: No. 156, to October and November Term 1870.</p> <p>This was an action of ejectment, commenced January 18th 1869, by James D. Yerner against Joseph M. Carson and Thomas Miller, for an undivided half part of a lot of ground in Pitts-burg.</p> <p>The plaintiff and Joshua Rhodes, who were partners as brewers, on the 1st of December 1860, entered into an agreement in writing, by which they dissolved the partnership, the plaintiff assigned and delivered to Rhodes all the stock, notes, &c., and all the effects of the firm whatsoever; “ the title to the brewery property, purchased of Thomas Scott, shall remain in the parties as it now is, as security for the amount to be paid to said James D. Yerner by the said Joshua Rhodes for his interest in the firm; and the said James D. Yerner does for himself, his heirs, executors, administrators and assigns, covenant, promise and agree to and with the said Joshua Rhodes, his heirs, executors, administrators and assigns, that whenever the said sum shall be paid to him, or secured in an ample and satisfactory manner, he shall and will thereupon, by good and sufficient deed, transfer, sell, assign and convey all his right, titles, interest and claim of, in and to said property to the said Joshua Rhodes.”</p> <p>“ In consideration of the foregoing premises, the said Joshua Rhodes agrees to pay the said James D. Yerner $41,000 in the manner following, viz.: $1000 in cash, and the residue in eight notes of $5000 each, so drawn that the first note shall fall due on the first day of July 1862, and the other seven regularly -on the first days of July in every year thereafter until the whole are paid; all bearing interest at the rate of eight per centum per annum, from the first day of January next, which interest, however, shall be made payable- regularly every three months, from the first day of January next, the first note falling due on the first day of April next: provided, however, that the note for $5000, to fall due on the first day of July 1862, shall be paid at any time before maturity, whenever the said James D. Verner may require the money. The said notes shall be further secured by the judgment-bond of the said Joshua Rhodes, and in the event of his neglect, failure or refusal to pay any one of the notes, either for principal or interest, at maturity, then the whole sum, both of principal and interest then unpaid, whether in fact due or not, shall immediately thereupon become due and payable, and the said James D. Verner, his endorsees, executors, administrators and assigns, shall be at liberty instantly to file up the said judgment-bond and issue execution thereon for the whole sum. The said judgment-bond, however, is not to be filed or used until this default occurs, without the knowledge, consent and approbation of the said Joshua Rhodes.”</p> <p>The bond from Rhodes to the plaintiff, given in pursuance of the agreement, bore even date with it, and was in the penalty of $110,000, with warrant of attorney to confess judgment for the penalty with costs, “ and attorney’s commissions for collection, viz.: 5 per cent, in case payment has to be enforced by pt jcess of law.” Rhodes gave notes for the payment of the consideration with interest according to the agreement, amongst the rest three notes of $100 each for the quarterly payments becoming due ’respectively on the first days of January, April and July 1869, and one for $5000, part of the principal, becoming due July 1st 1869.</p> <p>On the 1st of September 1866, Rhodes conveyed the whole premises to Carson, one of the defendants, and at the same time Rhodes stipulated as follows: — “ that I, the said Joshua Rhodes, hereby covenant and agree with the said J. M. Carson, that I will procure at my own expense a quit-claim deed, or release from the said James D. Verner, before the final payments made by the said Carson on account of his purchase of the said property.”</p> <p>It did not appear whether Carson had paid to Rhodes any part of the purchase-money.</p> <p>All the notes falling due before January 1st 1869, were paid according to their face, but default having been made in the payment of the interest due on that day, the plaintiff entered judgment on his bond on the 6th of January, and liquidated it at $5565, being the amount of the remaining instalment, $5000, of the three unpaid interest notes of $100 each, and of the commissions for collection. This action of ejectment was to enforce payment of the balance of the purchase-money to the plaintiff as ascertained by the judgment against Rhodes.</p> <p>The court (Sterrett P. J.) charged:— * * *</p> <p>“ If you believe the plaintiff’s testimony, he is entitled to your verdict for the undivided half of the premises described in the writ, to be released on payment (within such time as you may think reasonable) of the four last notes, viz.: three notes of $100, payable, respectively, January 1st, April 1st and July 1st 1869, and note $5000, payable July 1st 1869, with interest and attorney’s commissions, 5 per cent., and we will reserve the following questions of law and receive your verdict, subject to the opinion of the court in banc thereon, viz.:—</p> <p>“ 1. Whether the plaintiff ,is entitled to recover the three interest notes of $100 each, and attorney’s commissions, or any part thereof ?</p> <p>“ 2. WheAer the defendant is not entitled to set off the excess over the legal rate of interest paid by Rhodes, included in his interest notes from April 1st 1861, to October 1st 1868, both inclusive?” * * *</p> <p>The jury rendered this verdict:—</p> <p>“We find for the plaintiff the undivided half of the premises described in the writ, with six cents’ damages and costs, to be released on the payment of $5802.50 (or such less sum as judgment may be entered for by the court on the questions of law reserved), within nine months, with interest from this date, and on execution and delivery of deed by the plaintiff, subject to the opinion of the court on the questions of law reserved.”</p> <p>They accompanied their verdict with a statement of the amounts and dates of the payment of interest.</p> <p>In delivering the opinion of the court on the questions reserved, Sterrett, J., said:—</p> <p>* * * “ The first question is, whether the plaintiff'is entitled to recover the amount of the last three interest notes of $100 each, maturing respectively January 1st, April 1st and July 1st 1869, —and attorney’s commissions — or any part thereof.</p> <p>“ The plaintiff availed himself of the provisions in the agreement by which, in default of payment of either of the notes, all the subsequent notes became due and payable. Default was made in payment of the interest note which matured January 1st 1869, and he claims the right to collect not only this note, but the other two interest notes as well. These last notes were given expressly for the last six months’ interest on the instalment due July 1st 1869; in other words, for six months’ forbearance as to the last instalment. The plaintiff chose not to forbear, and proceeded to collect the instalment as due by the terms of the agreement. Under the circumstances, we are of opinion that it would be unjust and inequitable, to permit him to collect interest that was never earned. If the defendant were compelled to pay it, it would operate solely as a penalty for his default.</p> <p>“ As to the note due January 1st 1869, we are of the opinion that the plaintiff has a right to collect so much of thesame as will cover three months’ interest on the last instalment, or so much of the instalment as appears to have been unpaid at the maturity of the note, to be ascertained by calculation on the basis hereinafter referred to in disposing of the second reserved question.</p> <p>“We are of opinion that the plaintiff is entitled to the five per cent, attorney’s commissions on the amount found by our ruling to be due at the date of the verdict.</p> <p>“ The second reserved question is, whether the defendant is entitled to set off the amount of interest in excess of six per cent., embraced in the interest notes ?</p> <p>“We think he is; the two per cent, excess, included in each interest note paid, was usurious, and we are of opinion that defendant is entitled to credit for such excess as payments on account of the principal debt, as of the dates the notes were respectively paid.” * * *</p> <p>He accordingly directed judgment on the reserved questions for the plaintiff, to be released on the payment of $1245.47.</p> <p>The plaintiff took out a writ of error, and assigned for error the judgment as entered on the reserved questions.</p>

<p>Error to the Court of Common Pleas of Allegheny, county: No. 225, to October and November Term 1869.</p> <p>This was an amicable action and case stated, entered the 1st of October 1869, between The City of Pittsburg, plaintiff, and Samuel P. Shriver and others, trading as Samuel P. Shriver & Co., defendants.</p> <p>The following facts were agreed on by the case:—</p> <p>“ Section 2d of the Act of Assembly, parsed the 7th of March 1846 (PampL L. 78) provides ‘that the councils of the city of Pittsburg shall be and they are hereby authorized to levy and assess upon all articles of trade and commerce sold in the said city, including sales at auction or otherwise, an annual tax not exceeding five mills on the dollar, for the use of said city, to be levied and collected.from the venders of said articles, in the same manner as other city taxes are now levied and collected.’ The councils of Pittsburg, by virtue of said Act of Assembly, on the 25th day of January 1869, passed an ordinance assessing two and a quarter mills on the dollar, for all articles of trade and commerce sold in the city of Pittsburg for the year 1869. The defendants are wholesale grocery merchants, having their store and doing business in the city of Pittsburg, and were assessed by the city assessor, for the year 1869, upon sales amounting to the sum of $495,000, estimated in accordance with the provisions of city ordinances, from sales made by them for the year 1868. It is admitted that the sales made by the defendants during the year 1869 will amount to said sum of $495,000, but of this amount the sum of $75,000 is sold at their store in the city of Pittsburg, and the balance are sales made through persons employed by defendants who make contracts of sale for them outside the city of Pittsburg and state of Pennsylvania, which contracts are forwarded by said agents to the defendants at Pittsburg, and filled by them from goods and merchandise at their store in said city, and shipped to the purchasers by the most direct means of conveyance.</p> <p>“ If the court should be of opinion that upon the facts stated the defendants are liable to the'payment of the tax assessed upon all the sales made, then judgment to be entered for plaintiffs for the sum of $1018.75; but if the court should be of opinion that defendants are not liable for the payment of the tax assessed upon the goods and merchandise, the contracts for the sale of which are made outside the state of Pennsylvania, then judgment to be entered in favor of the plaintiffs and against the defendants for the sum of $168.75,” &c.</p> <p>The court entered judgment for the plaintiff for $1013.75.</p> <p>This judgment was assigned for error on the removal of the case to the Supreme Court by the defendants.</p>

<p>Error to the District Court of Allegheny county: Of October and November Term 1870.</p> <p>This was a scire facias to April Term 1869, upon a lien for a municipal claim by the City of Pittsburg against John F. Cluley.</p> <p>The city councils on the 10th of March 1868, passed an ordinance for paving Centre Avenue between Dinwiddie and Kirkpatrick streets, by virtue of which the claim was filed April 15th 1869, and is as follows:—</p> <p>“ The City of Pittsburg file this claim for the sum of $440.20, with interest thereon from November 6th 1868, and five per cent, additional, as attorney’s fee for collection, against all that certain lot of ground in the-Ward of the city of Pittsburg, situate on the north side of Centre avenue, fronting on said avenue sixty feet, &c., * * * of which the said John F. Cluley is owner or reputed owner.</p> <p>“ The said sum of $440.20, being the assessment upon said lot for the cost and expense of grading, paving and setting with curbstones, within six months last past, that part of Centre avenue extending from Dinwiddie street to Kirkpatrick street; the said work having been done in pursuance of an Act of Assembly, approved January 6th 1864, and an ordinance of the Select and Common Councils of said city, passed March 10th, A. D. 1868, and this claim is now filed as a lien against said lot in accordance with the' Acts of Assembly in such case made and provided.”</p> <p>There are two Acts of Assembly relating to municipal improvements in Pittsburg:—</p> <p>The Act of the 18th of April 1857 (Pamph. L. 240), which provides that the councils may on the failure of the owner of lots fronting on any street, lane or alley, after twenty days’ notice in writing, caused to he prepared and set with hewn curbstone of good and sufficient quality in front of his, her or their lot, at such grade and place as shall be directed by the city regulator, and that said councils shall have the like power to pave the sidewalks fronting on any street, lane or alley. It further provides that the cost of said work and materials shall remain a lien from the completion of the work, and that for the expense a lien shall be filed in the District Court, which when filed shall continue for five years, with particular directions how process shall issue for the collection of said lien.</p> <p>The Act of January 4th 1864 (Pamph. L. 1131), which enacts:</p> <p>Sect. 6. The said councils are hereby authorized, whenever they may deem the same necessary, to cause to be graded, regraded, paved, repaved or macadamized, any public street, &c., or any part thereof, which is now or which may hereafter be laid out and opened in said city, &c., and to have the same set with curbstone; and to levy and collect the cost and expense of the same from the owners of property bounding or abutting on the portions of said streets, &c., thus improved, by an assessment of an equal sum per foot front of said properties.</p> <p>Sect. 7. Whenever any street, &c., has been graded, &c., in pursuance of the preceding section, it shall be the duty of the recording regulator of said city to make the assessment for the cost and expense thereof, as provided for in said section, and to give notice by publication for ten days in two daily papers of said city that the said assessment has been made and may be seen at his office, and that the parties interested may have an opportunity of having any errors or mistakes corrected; after correcting any errors or mistakes that may have been discovered, he shall immediately hand over the said assessments with a plan and description of each lot, the amount assessed thereon, and the name of the owner or owners to the treasurer of said city.</p> <p>Sect. 8. As soon as the treasurer shall have received the said assessment-list from the recording regulator, he shall cause notice of the amount assessed upon each property to be given to the owner thereof, and that, if the same be not paid to him within thirty days from the time of said notice, it will be filed as a lien against said property with interest, costs and fees.</p> <p>Sect. 9. If said assessments are not paid within thirty days after the service of notice aforesaid, the treasurer shall hand over to the city solicitor the said assessment-list, with the plan and description of each lot, &c., as furnished by the recording regulator, .and the city solicitor shall file a lien, against each property for the amount of the assessment thereon remaining unpaid, with interest from the time notice for payment was given, and five per centum additional as the solicitor’s fee for collection.</p> <p>Sect. 18. The lien authorized by this act shall be filed in the District Court of said county, in the same manner as mechanics’ liens are filed, and writs of scire facias and levari facias may be issued thereon, as in case of mechanics’ liens, and the same costs shall be taxed; but when the same owner has two or more vacant lots adjoining each other on the same street, &c., all of said lots shall be embraced in one lien, &c. * * *</p> <p>Sect. 19. The assessments authorized by this act shall be liens upon the properties assessed, from the commencement of the improvements for which they were made, and shall, if filed within six months after the completion of said improvements, continue liens for five years, and be revived by scire facias as other liens, &c.</p> <p>The 25th section provides that liens for setting curbstones and paving sidewalks under the Act of 1857 shall be indexed as provided in this act, and that repairing sidewalks and curbstones and repaving are within the provisions of this act.</p> <p>On the 2d of June 1870, the case was tried before Kirkpatrick, J.</p> <p>H. J. Moore, city engineer of Pittsburg in 1868-9, testified, “ Under my direction Centre avenue was graded, paved and curbed from Dinwiddie to Kirkpatrick street, made an assessment on entire front paved for the work. It was done in my office, under my direction; amount assessed to defendant was $440.20. The work was completed on or about the 1st day of November 1868.”</p> <p>The defendant moved for a nonsuit, alleging that the lien was fatally defective.</p> <p>I. It did not show that the expense is charged for paving the sidewalk.</p> <p>2. The expense of curbing is included in the lien with the expense of paving.</p> <p>3. The lien does not give the date of doing the work.</p> <p>The court ordered a nonsuit, which the court in banc refused to take off.</p> <p>This was assigned for error by the plaintiff on the removal of the case to the Supreme Court.</p>

195, to October and November Term 1870. This was a scire facias on a municipal claim in which the City of Pittsburg was plaintiff and John S. Shaffer defendant.

152, to October and November Term 1870. To April Term 1870, James McGovern brought an action ofreplevin against William Carr and James Blondin. A rule of reference was taken out, and on the 15th of June 1870 the arbitrators filed their award, finding for the plaintiff. On the 16th of June, Carr made and filed the proper affidavit for an appeal, and entered into a recognisance himself, but without any surety, in the sum of $100, and' paid $1.50 of the costs.

<p>1. All that is examinable on-certiorari is the regularity of the proceedings.</p> <p>2. The refusal of the Court of Quarter Sessions to continue a road order is discretionary and not reviewable in the Supreme Court.</p> <p>3. An order for review issued at the term at which the view is returnable, must he returned at the next term.</p> <p>4. A review may be applied for at the election of the party at the same, or next term after the view returnable.</p> <p>5. Having made an election the party is hound by it.</p>

126, to October and November Term 1870. On the 29th of March 1787, an act was passed for laying out a state road, from the Frankstown junction of the Juniata river to the Conemaugh river, and in 1791, a supplement was passed, continuing the road to Pittsburg. In pursuance of these acts a state road was laid out.

139, to October and November Term 1870. This was an action on the case, to June Term 1869, by Alonzo Stanley against Edward Homan. The cause of action was the negligence of the defendant in not sufficiently guarding a cellar dug by him in the public street, so that the plaintiff, in passing along the street, fell in and was seriously injured.

190, to October and November Term 1870. The fund for distribution arose from the sale of the defendant’s personal property, under an execution at the suit of John Huckenstein and Jacob Eisenbeis; the fund having been paid into court was referred to J. IT. Baldwin, Esq., as auditor, to report distribution.

<p>Appeal from the Court of Common Pleas of Cambria county: In Equity: No. 40, of October and November Term 1370.</p> <p>On the 26th of August 1867, Ephraim Crum and Aaron Sherbine filed a bill against S. M. Kern, A. Thompson, H. A.llenbaugh, Gr. W. Kerby, James M. Cooper, and 28 others, which set out—</p> <p>1. The formation in August 1868, of an association under the name of The Perseverance Oil Company.</p> <p>2. The election of the five defendants named and the plaintiffs managers of the company; the purchase by the managers of an acre of land and the le'ase of another for nine years in Muskingum eounty, Ohio, having two oil-wells sunk in them, with engine, &c., for working.</p> <p>3. The entering of the company upon the lots, and after sinking other wells and working for some time, the abandonment of the enterprise as impracticable.</p> <p>4. Eor the purpose of raising money to purchase the lease, engine, &c., at the request of the association, E. Crum (plaintiff), Gh W. Kerby and H. Allenbaugh (defendants), gave their note to one J. Miller for $619.50, which had since been paid by the plaintiff, and for the same purposes Orum, Kerby, Thompson and Allenbaugh gave their obligation to one Mary Patton for $600, and under an execution on a judgment recovered on it, Kerby’s personal property was sold for $265.45, and Crum’s for $71, and the balance continued a lien on his real estate.</p> <p>5. Crum, at the request of the company, went to Muskingum county, Ohio, on their business, in which he incurred $38 expenses.</p> <p>7. There had been no settlement of the partnership accounts, the plaintiffs had frequently asked for a settlement, which the defendants refused.</p> <p>The prayer was that the partnership be declared void; that an account be taken, and that the defendants be decreed to pay the several sums of $1219.50 and $38 with interest, and for general relief.</p> <p>The answer admitted the formation of the association, denied that the managers were authorized to purchase or lease any oil territory, as averred in the bill, or that they were authorized to borrow the sums named in the bill from Miller and Patton, but if borrowed at all, it was “ by the persons borrowing the same on their own motion”; and denied knowledge of the plaintiff’s having expended $38 on behalf of the company. No replication was filed. William H. Sechler, Esq., was appointed examiner and master.</p> <p>The following were articles of agreement for the association:—</p> <p>“ Article 2. Capital stock of the company shall consist of four hundred shares, at ten dollars each, or $4000 — which shall not be increased without the consent of the majority of the stockholders.</p> <p>“ Article 3. Assessments may be made on the shares for boring and other purposes. But said assessments shall not exceed $2 per share without consent of majority of stockholders.”</p> <p>The' managers elected were Gr. W. Kerby, S. M. Kern, S. B.. Cooper, E. Crum, A. Sherbine, A. Thompson,-PI. Allenbaugh.</p> <p>The minutes of the company show as follows:—</p> <p>“ A meeting of the stockholders was held Octoher 1st 1866, in pursuance of notice given by the president, at which it was resolved to increase the capital stock of the company to an amount not to exceed two hundred shares at $10 each, for the purpose of purchasing engine and fixtures for pumping, and additional territory.</p> <p>“ It was further resolved, that whatever additional stock should be taken pursuant to this resolution, be received on an equal footing with the original stock subscribed, by paying one dollar assessment on each share so subscribed, and one-half the subscription cash, and the balance in thirty days from this date.</p> <p>“ Octoher 22d 1866. Directors met at the call of the president, full board being present. * * *</p> <p>“ On motion it was -resolved, that the $1200 borrowed by Messrs. Gr. W. Kerby, A. Thompson, H. Allenbaugh and E. Crum, and invested in the purchase of engine and fixtures, and additional oil territory, be legalized and assumed by this company.”</p> <p>The master reported that $4000 in stock had been subscribed and more than half paid in, and that the company bought “ Lot No. 58” for $4000, subsequently another lot, “No. 9,” in the same territory, with its engine and fixtures was offered for sale, this lot, &c., were purchased by Gr. W. Kerby, the president, for $1200, on the 11th of October 1866. On the 10th of October, Crum, Kerby and Allenbaugh received from Miller $600, for which and the discount ($19.50), they gave to Miller their note of the same 'date,' payable in three months, for $619.50; the note was paid by the plaintiffs. Mrs. Patton on the 7th of October 1866, lent to Kerby, Crum, Allenbaugh and Thompson $600, and took their judgment-note, payable in two months, which was entered, and a sale of Kerby’s and Crum’s goods made as set out in the bill. On the 11th, Kerby as president paid $1200 for lot No. 9 and fixtures; the $1200 thus received were expended in the purchase of lot No. 9, fixtures, &c.</p> <p>The master further found that Kerby had no authority to purchase lot No. 9, &c.; that the managers had no authority to borrow money, and that their resolution of October 22d 1866, assuming to ratify the transaction, had no validity. He reported against a decree for the payment of the $1200, but recommended that the plaintiff, Crum, have a decree for the payment of the $38 expended by him.</p> <p>The plaintiffs filed exceptions to the report; the defendants also filed exceptions to the part of the master recommending the payment of $38 to the plaintiff for expenses-</p> <p>The court dismissed the bill, with costs.</p> <p>The plaintiffs appealed to the Supreme Court, and assigned the decree of dismissal for error.</p>

212. This was an amicable action and case stated, in which Annie Graham was plaintiff, and William Roseburg, John D. McCord, and John B. Herron, executors of John Graham, deceased, defendants. To June Term 1870.

172, of October and November Term 1869. This was a feigned issue in which Joseph Ross was plaintiff, and William Espy was defendant, directed at January term 1866 under the following circumstances :— On the 12th of April 1861, John Smithley drew a note for his own accommodation for $400, payable to the plaintiff at four months; the note was endorsed by the plaintiff and then by the defendant.

Appeals from the Court of Common Pleas of Allegheny county: In Equity: Of October and November Term 1869, No. 196 and 197. In the court below James W. Cree, on the 15th of September 1865, filed a bill against Franklin H. Eaton and Nathaniel G. Macrum. The bill set out: — ■ 1, 2 & 3.

<p>Appeal from the decree of the Court of Common Pleas of Allegheny eounty: Of October and November Term 1869, No. 177.</p> <p>Jerome Jones filed his libel in divorce against Mary L. Jones, in which he set forth that on the 31st of October 1865, he was married to Mary L. Sweeney, now Jones, the respondent, &c.</p> <p>* * “ That the said Mary Jones has, by cruel and barbarous treatment, rendered the condition of the libellant intolerable and life burdensome, having since the 22d February 1866 wholly refused and failed so to conduct and behave herself as to aid in any manner in living in harmony with the libellant without having any just cause or provocation by him offered; that the said Mary has at divers times made threats, saying, that the libellant shall die, threatening to take his life and commit murder ; that his the libellant’s life is not safe at any time; that she has poison in the house, and has frequently so asserted; when threatening his life she has threatened to burn the dwelling-house and home of the libellant, and from her often malicious and repeated threats he is kept in continual jeopardy of life and property, and does not feel safe night or day lest Mary L. shall carry into effect some or all of her said threats. She further has threatened of and concerning the libellant’s aged mother who has lived in his house and family for over eight years, and made her home there, being now about eighty years old; that she (said mother) shall die if libellant-keeps her there; and in consequence of such threats he has been compelled to have his mother remain away from home, fearing lest this threat may be carried into effect. He gave MaryL. Jones full charge.of his house when he brought her home, and desired her to conduct his domestic affairs, but in a short time she, without cause, declined to so conduct the same, and has since that time contributed by various annoyances, wilful and malicious acts and threats, to disturb the peace and happiness of his household, refusing to aid in any way in the business and affairs of the same, except when she interfered with those whom he directs to do the work, plainly showing that her object is to drive peace and happiness away from his home; and that she often ordered libellant to put from their home his children, and as often ordered libellant to drive them away, though they were instructed and disposed to treat her as a mother, and as far as the libellant knows or was informed, did so treat and obey her.” * * *</p> <p>The respondent in her answer admitted the marriage, but denied every allegation in the libel, and added:—</p> <p>That she did do and perform her duty as a faithful and kind wife towards the said Jerome Jones, but that he treated her with barbarity, cruelty and violence. * * *</p> <p>A large amount of testimony was taken tending to prove the allegations in the libel and by the respondent in answer, and also to show the value of the libellant’s estate. The testimony as condensed in the opinion of Judge Agnew, will sufficiently exhibit the case on the facts.</p> <p>The proceeding was under the Act of May 8th 1854, § 1, Pamph. L. 644, Purd. 346, pi. 7. The material provision is as follows:— “ In addition to the cases now provided for by law, it shall be lawful for the Courts of Common Pleas of this Commonwealth, to grant divorces in the following cases : * * *</p> <p>“ 3. Where the wife shall have, by cruel and barbarous treatment, rendered the condition of her husband intolerable, or life burdensome: Provided, that in cases of divorce under this act, if the application shall be made on part of the husband, the court granting such divorce shall allow such support or alimony to the wife, as her husband’s circumstances will admit of, and as the said courts may deem just and proper.”</p> <p>On the 17th of February 1869, the court decreed a divorce a vinculo matrimonii: “ And further decreed, that the said libellant, Jerome Jones, do pay to the respondent the sum of $120 per annum, in quarterly payments, from the date-of this decree.”</p> <p>The respondent appealed to the Supreme Court and assigned for error:—</p> <p>1. Making the decree of divorce a vinculo matrimonii, on .the testimony.</p> <p>2. Not allowing the appellant a greater annual “ support or alimony.”</p>

199, to October and November Term 1869. The proceeding in this case arose on tbe distribution of the sum of $4506.06, the balance in the hands of William Galbreath, surviving executor &c., of Samuel Galbreath, deceased. The matter was referred to Thomas MacConnell, Esq,, as auditor. By his report it appeared that the decedent died in 1841, seised of a farm of about 107 acres, and having made his will, which was proved January 10th 1842.