Volume 67 — Pennsylvania State Reports

<p>1. It is incumbent on a grantee to show that an alteration, beneficial to him, in a deed, was properly made.</p> <p>2. If it appear that the alteration is written with the same pen and ink as the body, the inference would be that it was made before the sealing and delivery; if otherwise such inference would not arise and other evidence would be required to explain it.</p> <p>3. The law does not presume that an interlineation in a deed is a forgery or made after execution; it is a question of fact for the jury, upon proof adduced by him who offers the deed.</p> <p>4. R. made, laid out, and numbered town lots,- and recorded the plot; amongst others were 269, 270, and 271. By deed referring to the plot, he conveyed 271 to M., as bounded on the east by an alley, and 269 to W., as bounded on the west by an alley; no alley appearing on the plot. On the application of J., who had become the owner of 269 and 271 and representing 270 as an alley, the Quarter Sessions vacated “said lot 270.” Held, that J. was not entitled to 270.</p> <p>5. The plot being referred to, was as much a part of the deed as if incorporated in it.</p> <p>6. M. and J. fenced 270 and used it as a yard; if it had been an alley, this was an extinguishment.</p> <p>7. If an alley, it was extinguished also by the proceedings in the Quarter Sessions.</p> <p>8. When a verdict is taken subject to a reserved question, it should be rendered in favor of the plaintiff.</p> <p>9. The facts upon which a reserved question arises should be found or agreed upon, and they and the question should be distinctly stated; the judgment to be pronounced should be specified as in a case stated.</p> <p>10. Paul v. Carver, 2 Casey 223, Cox v. Ereedley, 9 Id. 124, distinguished.</p>

<p>1. A. leased to F. an oil refinery till March 1st 1870, one-third of the net profits, “ after deducting all expenses, outlays and losses,” to be paid to A., F. “ to keep full and correct books of accounts of the business of said firm, and the results of the business are to be made out on the first day of January, 1868, and semi-annually thereafter, and distribution of the net profits, viz.: one-third to said A., and two-thirds to F., shall be made at such time as the parties hereto may determine.” Provision was made for erecting permanent fixtures, if the parties agreed to do so, A. to pay for them, either in cash, or •out of his one-third of the net profits, or secure it by a mortgage on the premises. Held, that the account was to be taken at the close of the lease, and not on January 1st 1868.</p> <p>2. Distribution was not to be made in January 1868, but when the parties might determine.</p> <p>3. A bill was filed for an account, the answer denied the obligation to .'.furnish an account, the case without replication was referred to a master to'state an account; immediately before the decree on the master’s report, a replication nunc pro tunc was filed by leave of the court. Held, that the want of a replication previously was cured.</p>

<p>1. Irvin contracted to buy land from Bleakley, paid half the purchase-money down and was to pay the remainder in 60 days when the deed was to be delivered. The money was not paid or demanded, at the end of 60'days nor deed tendered. After that the time for performance became indefinite, but mutual and dependent whenever it should occur.</p> <p>, 2. Whichever party first desired to enforce performance was bound to regard his part of his contract as a condition precedent and perform or tender performance.</p> <p>3. Where the vendor proceeds on his legal title a tender is not necessary; but the conveyance will be provided for by a conditional verdict.</p> <p>4. A party in default has no right to insist upon rescission.</p> <p>5. A vendee cannot insist upon a rescission on the ground of encumbrances, when he owes unpaid purchase-money sufficient to discharge them.</p> <p>- 6. A vendor is not bound to remove encumbrances unless upon demand of the vendee for performance, and at the same tima showing a readiness to perform his part.</p>

104. On the 20th of February 1870, Andrew Neil, constable of Monongahela city, made return to the Court of Quarter Sessions of Peter McCullough, for keeping a tippling house, selling liquor on Sunday, to minors and men of intemperate habits. On the 21st the court issued a bench warrant, to which the sheriff returned that the defendant had given security for his appearance at the next term.

199. This was an action of debt, commenced August 2d 1860, by. Maria Bredin against Robert Gilliland and Joseph Morrison, executors, &c., of Josiah Hutchman, deceased, in which Gilliland alone was served. On the- 7th of June 1861, the court, on motion of the plaintiff, entered judgment against the defendant for default of appearance and directed the prothonotary to liquidate the judgment, which was done June 22d against Gilliland at $210.65.

220, to October .and November Term 1870. This was an action of ejectment brought December 24th 1868, by John Rogers against Isaac Thompson, Samuel Thompson and James Emery, for an undivided half of a lot of land.

14, to October and November Term 1869. This was an action of ejectment brought April 14th 1866, by Worthington R. Johnson and Anna, his wife, for the undivided moiety of two tracts of land situate in Connellsville township, containing respectively 406 and 428 acres. The title to the tracts, October 19th 1811, was 'in Thomas Johnson, from whom an undivided half of them was vested in the plaintiff.

Appeals from the Court of Common Pleas of Lawrence county: No. 216, 217 and 221: Of October and November Term 1870. In the distribution of the proceeds of the sheriff’s sale of the personal property of Martin B. Wilson. Prior to March 22d 1869, executions had been issued against Wilson by Reis, Brown & Berger, Klee k Bro., Whitmore & Co., J. Quigley, L. Raney, McCord & Co. and A. Weller, amounting in the whole to $3297.68.

47, to October and November Term 1870. This was an action on the case for slander, brought August 23d 1866, by Patrick Reynolds and Elizabeth his wife against Frederick Stitzell. The words laid in one count were that “ Mrs. Reynolds had stolen corn out of Gribble’s fieldin the second count that the plaintiff “ was confident that Patrick Reynolds’s wife stole Gribble’s cornthereby intending to charge her with larceny.

205. This was an action of assumpsit brought, December 11th 1868, by R. H. Phelan against Jennings J. Moss. On the trial, before Gilmore, P. J., the plaintiff having given evidence of the handwriting of the defendant, gave in evidence the following note, viz.:— “ Six months after date, I promise to pay to George W. Benton or bearer two hundred and fifty dollars, for value received, with use, without defalcation.

<p>1. In an action against three, heard before arbitrators, the plaintiff called Carroll, one of the defendants; McKenna, another of the defendants, was then examined on their behalf. There was an appeal, afterwards Carroll died. On the trial in court McKenna could not he examined by the defendants nor his testimony before the arbitrators read.</p> <p>2. On the trial of an appeal the proceeding is de novo.</p> <p>3. On the trial the case stood under the Act of April 13th 1869, and .the plaintiff being dead a defendant was not a witness.</p> <p>4. McKenna not having been called by the plaintiff, his credibility had not been endorsed by him.</p>

114. This was an action of replevin commenced April 28th 1868, for a mare, by James Davis and Phoebe his wife against Mary Zimmerman and^John Zimmerman. The mare was levied on and sold under an execution against James Davis at the suit of the defendants, and was bought by them. Mrs. Davis alleged that the mare was her separate property, and brought this replevin for its recovery. On the trial, June 15th 1870, before' Gilmore, P. J., the following facts were agreed on:— 1.

124. On the 6th of February 1867, a judgment was entered in tbe Court of Common Pleas of Butler county in favor of Catharine Gr. Noble, wife of Daniel D. Noble, against John Cross, for $600 on a bond with warrant of attorney. The bond was given for part of tbe purchase-money of a tract of land belonging to Mrs. Noble.

27, to October and November Term 1870. This was an action of trespass, issued February 19th 1868, by David Mitchell against Francis M. Cunningham.

<p>1. Garrard signed a printed note, in the blank of -which was written “ one hundred,” leaving a blarik space between that and “ dollars” which was in print; this, after delivery, was filled with “fifty” in the same hand, and nothing in the appearance to raise a suspicion that it was not all right. Held, that Garrard was liable for the face of the note to a bonft fide holder for value.</p> <p>2. If the blank had been scored or the alteration in any way perceptible, a purchaser would have taken it at his own risk.</p> <p>3. If one by his acts, or silence or negligence, misleads another or affects a transaction whereby an innocent party suffers, the blameable party must .bear the loss.</p> <p>4. Worrell v. Gheen, 3 Wright 388, remarked on.</p>

118, to October and November Term 1870. The North Western Railroad Company was incorporated February 9th 1853 under the General Railroad Law of 1849, to construct a road from the Pennsylvania Railroad west of Johnstown, by way of Butler, to the Ohio state line at some point on the western line of Lawrence county; the capital to be $1,000,000, with right to increase to $2,000,000, in shares of $50 each, with power to borrow money to an amount equal to the capital, with…

115. This was an action of ejectment for 157 acres of land brought to June Term 1852, by David Bradford against George W. Odenbaugh. The land in dispute belonged to James Bradford, who by his will dated in 1821, devised it to his widow, Catharine Bradford for life and at her decease to the plaintiff. On the 14th of August 1840, the widow being still alive, the plaintiff and his wife executed a deed in fee to the defendant for the premises, which was recorded the same day.

120, of October and November Term 1870. On the 9th of August 1869 Cephas Porter issued a replevin against Jeremiah Baird for five cattle.

<p>1. A policy referring to an application as part of it, is inadmissible without the application.</p> <p>2. Where a policy was admitted without the application, the error was cured by the opposite party giving the application in evidence.</p> <p>3. Hay and grain insured were stated in the application as in the “ hay-house in the meadow.” There were two buildings in the meadow in which hay was kept, one usually called a “ hay-house” and the other a “ barn.” Evidence was admissible to show which was intended.</p> <p>4. The maxim Anibiguitas verborum lateas verifications suppletur; nam quod ex facto oritur ambiguum verifications facti tollitur, applied.</p> <p>5. An ambiguity being raised by parol, may be explained by parol.</p> <p>6. Evidence erroneously admitted for the purpose for which it was offered, being found competent for another purpose, the error was cured.</p> <p>7. Whenever evidence dehors a writing is resorted to to fix identity and locality, it is a question for the jury.</p> <p>8. The facts that one building at the time of the insurance contained property such as that insured, and that the other did not and could not contain such property, was evidence on the question of which building was intended.</p> <p>9. The rule of precision and certainty of evidence required to reform a writing, does not apply to evidence to explain a latent ambiguity.</p> <p>10. A latent ambiguity is to be determined by the weight of the evidence.</p> <p>1J. In a question of reforming a writing, the judge sits as a chancellor and if in his opinion the evidence would justify a decree, he is bound to withdraw it from the jury.</p> <p>12. An agent although only to’ receive and transmit applications is an agent to receive and transmit notice, which building, where there are two, was intended.</p>

183. This was an action of ejectment brought November 16th 1867, by John Hess and James Hess against David Hess and Nancy Hess for a tract of 95 acres of land. The land had belonged to George Hess deceased, who died October 21st 1868, leaving a widow and six children, Nancy and David (the defendants), John and James (the plaintiffs), Ebenezer and Margaret.

<p>Error to the Court of Common Pleas of Payette county: Of October and November Term 1870, No. 188.</p> <p>The form of action in this case was assumpsit, by Daniel Kaine against Alfred E. Meason; the suit was brought May 4th 1867.</p> <p>The original declaration was altogether on the common counts. The affidavit of plaintiff’s claim was that the defendant owed him $333.38 with interest from April. 2d 1866, and $778.44 with interest from April 3d 1867. The case was tried January 21st 1869, and a verdict rendered for plaintiff for $1251.90. The judgment on this Verdict was reversed by the Supreme Court (13 P. F. Smith 335). .</p> <p>After the record was returned the plaintiff filed an additional count, which averred that in consideration that the plaintiff and one Eli Cope would purchase a farm of James' Shoaf, the defendant agreed, “to and with the plaintiff,” that he would become owner of one-third of it and pay one-third of the purchase-money; that the plaintiff and Cope purchased the farm for $12,838.75, and offered the one-third to the defendant, but he refused to take it and pay the one-third of the purchase-money.</p> <p>The case was again tried March 17th 1870, before Gilmore, P. J. The plaintiff gave in evidence an article of agreement dated December 23d 1864, between Shoaf of the one part and Cope and the plaintiff of the other, by which Shoaf agreed to sell to them a tract of 234 acres of land for $12,838.75. The article was witnessed by the defendant.</p> <p>Cope testified that the defendant came to him “ to go in and buy” the Shoaf farm; Cope said it was too much for him, unless more would go in; Meason went away 'and returned, saying that the plaintiff would go in; defendant and plaintiff came to witness’s house, and the three agreed to buy the farm. The next day they met Shoaf; they agreed about the farm; the defendant wrote the article; the understanding was that defendant’s name was not to be used in the article; the purchasers were the plaintiff, defendant and witness, as equal owners; it was thought defendant could act best for the parties in selling the farm if his name was left out; the defendant always said he would pay his share; witness had tried in every way to sell the farm, but could not; the highest offer was $35 per acre. ’</p> <p>The plaintiff testified substantially to the same facts. He also testified that by an arrangement with the parties they were all to meet April 1st 1867 to pay Shoaf $4700 on account of the purchase-money and interest; the defendant had assured plaintiff he would then be ready to pay his share; the others met at the time appointed; the defendant did not come, and Cope and plaintiff paid all the money; the understanding was that defendant should sell the land, Cope and plaintiff execute the deed, and the money be divided between the three. The plaintiff then gave evidence of the value of the farm and of some expenses in regard to it by himself and Cope.</p> <p>The defendant testified, denying that he ever agreed to become a joint purchaser of the farm with the plaintiff and Cope, or to pay any part of the purchase-money. He gave evidence also that the farm had very much deteriorated through bad management since it was bought, of its value, &c.</p> <p>The following are points submitted by the defendant, with their answers:—</p> <p>1. The claim of plaintiff being joint with Eli Cope, there can be no recovery in this action.</p> <p>Answer: “The amended narr. goes for damages'for a noncompliance with an alleged parol contract, by which it is claimed by plaintiff that defendant was co-purchaser with plaintiff and Eli Cope in the purchase of a tract of land from James Shoaf, which parol contract the defendant denies. We are asked to charge you that Cope should have been joined in this action; we are inclined to believe, and so instruct you, that a separate action can be maintained; we therefore refuse to charge you as requested. The Supreme Court in this case refused to indicate their opinion on this point; we are requested to do so; and, without hearing any argument on this point, none having been offered, we decide as above indicated.”</p> <p>4. Should the jury be of opinion that if Kaine & Cope had properly cared for and farmed the Shoaf farm since it has been in their possession, it would now bring money enough to clear them of loss, plaintiff cannot recover.</p> <p>Answer : “ This has reference to the measure of damages to be assessed in case you should find that Meason did agree by parol to be an equal, or'one-third purchaser in the contract. We charge you that the measure of the damages will be the difference between the price paid or agreed to be paid by plaintiff and Cope, and the market value of the land at this date, and any diminution of value occasioned by the mere wear and tear of the premises under the tenancy, if there is any, could not be taken into account, that is, it should not be charged to the plaintiff, but the market value of the land now, as compared with what has been paid for it, should be the measure of the damages.”</p> <p>7. The cause of action as laid in the amended narr., filed March 15th 1870, is barred by the 6th section of the Act of Assembly of April 22d 1856, relating to trusts, &c. This point was reserved.</p> <p>8. The measure of damages must be actual outlays by Kaine, or the value of services rendered or labor performed by him in consequence of, or in and about the agreement with Meason, outside of the consideration-money, and that in fixing the damages they must leave out of view the consideration-money as it has no place in this case.</p> <p>Answer: “ Our answer as to the measure is given in the answer to defendant’s 4th point, to which we adhere.”</p> <p>The verdict was for the plaintiff for $500.20, with right to the court to enter judgment on the reserved question for defendant, non obstante veredicto.</p> <p>In delivering his opinion on the reserved question the judge answered the 7th point as follows:—</p> <p>“By reserving our answer to 7th point of the defendant we showed our willingness to reconsider our order, allowing the amendment to the narr. This point involves the whole case, and we have now heard it argued with all the authorities bearing upon the case cited. And after consideration wé remain of the same opinion, that we had power to allow the amendment, and upon this amendment the action has now been tried. We hold that the cause of action is substantially the same, the gravamen of the complaint against the defendant is, that he refused to comply with his parol contract with the plaintiff and Eli Cope in the purchase of the tract of land from Shoaf. The narr., as filed in the case when tried, was found to be obnoxious to the provisions of the 4th section of the Act of-22d of April 1856', The action, as then declared upon, was in furtherance and confirmation of the contract, and according to the rulings already made under this act could not be sustained. But the amended narr. and new count upon which the action has now been tried demands damages for the violation of his parol agreement in the making and infraction of this contract. This is a familiar cause of action and' not within the meaning of the Act of 1856. It is true, it is almost always between vendor and vendee, but we see no reason why it would not hold as good between co-vendees. We therefore say that the root or foundation of the plaintiff’s action was the same, to wit, the failure to comply with his parol agreement, he had a. right, under our statutes, to have his narr, amended, and recover upon a count under which his action will not be barred. It may be observed also that the form of action and the parties continue the same, still it is alleged that the allowance of this amendment would make a misjoinder of counts, and this is put on the ground that the damages are not assessed by the same admeasurement. It is true that the damages are not assessed by the same rule, but if the plaintiff’s cause of action is the same, why may he not strike out the obnoxious count or ignore it altogether, as he did in this trial ? This matter can all be regulated on trial. It is also objected that the plea would be contradictory, that on the one count the statute bar is five years, and on the other six. We give the same answer to this objection as we have done to the one immediately preceding; and furthermore, there are other ways in which this difficulty could be and ought to be avoided for the purpose of arriving at the substantial justice of the case. It is no objection to the allowance of an amendment that the party, defendant could to a new action plead in bar the Statute of Limitations. This we think, in a- meritorious action, would be a reason why the amendment should, if possible, be allowed. We therefore decide the reserved point in favor of the plaintiff, and direct'judgment on the verdict in his favor.”</p> <p>The defendant took a writ of error, and assigned for error the answers to his 1st, 4th and 8th points, and entering judgment for the plaintiff on the verdict on the reserved question.</p>

215, to October and November Term 1870. This was an action of assumpsit brought May 22d 1866, by John II. Gummert, to the use, &c., against William Woods and James Cunningham, administrators, &c., of James Woods deceased. The claim was on a book account for work and lábor on decedent’s farm, services as his agent about his general business under a power of attorney and money advanced in payment of debts. The book account extended through the years 1860,1861 and 1862.

<p>1. Property vested in a religious society, incorporated or not, is a charitable use, whether the donors be one or many.</p> <p>2. The society are trustees and cannot divert the property from the use to which it was dedicated more than other trustees.</p> <p>3. If they undertake to divert the fund, equity will raise another trustee to administer it according to the intention of the donor or subscribers.</p> <p>4. When the founders have expressed their intention that particular doe-' trines shall be taught or a particular form of worship and government maintained, those having the management of the institution cannot alter the purpose for which it was founded.</p> <p>5. A church organized and endowed as belonging to any particular sect, or in subordination to any particular form of church government, cannot break from that connection or government.</p> <p>6. If the church be not described in the original donation or subscription as under any particular ecclesiastical jurisdiction it may change its relation, provided there be no radical departure from the original faith or doctrine.</p> <p>7. In churches, those who adhere and submit to the regular order of the church, though a minority, are the true congregation.</p> <p>8. The title to the property of a divided congregation is in that part which is acting in harmony with its own law, and the ecclesiastical laws, usages, &c., which were accepted before the dispute are the standard to determine which is right.</p> <p>9. The guaranty of religious freedom has nothing to do with the property.</p> <p>10. The majority of a congregation organized under a particular ecclesiastical jurisdiction, resolved that they would not continue under that jurisdiction, elected church officers as an independent body and took possession of the church property. They afterwards rescinded their resolutions and resolved to return ; this did not restore them to their former church relations or to any rights in the property.</p> <p>11. McGinnis v. Watson, 5 Wright 9, Sutter v. Reformed Dutch Church, 6 Id. 503, remarked on.</p>

206 to October and November Term 1870. The proceedings in this case commenced before John Holmes, Esq., a justice of the peace, by Johnson McGinnis against Andrew J. Vernon. They were designed to be under the Landlord and Tenant Act of December 14th 1863, to recover possession of leased premises. The justice having given judgment for the plaintiff, the proceedings were removed by certiorari into the Court of Common Pleas, at the instance of the defendant.

<p>1. An act highly discreditable but not infamous and not connected with an attorney’s duties, will not give the court'jurisdiction to strike him from the roll.</p> <p>2. An attempt to make an opposing attorney drunk to obtain an advantage of him in the trial of a cause, is good ground for striking an attorney from the roll.</p> <p>3. The duties, responsibilities and deportment of attorneys considered in this ease.</p> <p>4. Austin’s Case, 5 Rawle 191, remarked on.</p>

<p>T. held real estate in fee in trust for his children or the survivors at his death. He had nine children, two died leaving issue, he then died, and one-seventh passed to each surviving child. Under the belief amongst the children that the issue of the deceased children took their parents’ shares, D., one of the children, conveyed to B. one-ninth of a portion of the trust estate, describing the portion, “being the same premises of which the late T. died seised and from whom D. inherited as one of the heirs at law of said T., also all the right, &c., of said D. of, &c., all the real estate of his late father T. to which he is in any manner entitled and wheresoever situate * * * to have and to hold the said undivided one-ninth part of said described land, &c., hereby granted, &c., or intended so to be,” &c. Held, that only one-ninth passed to B.</p>

<p>Error to the Court of Common Pleas of Allegheny county: No. 211, to October and November Term 1870.</p> <p>This was scire facias on a mechanic’s lien, issued July 15th 1869, by William J. Criswell against Henderson Wilson, James Robinson and Washington McClintock, for materials in tbe repair or additions to a store-house belonging to McClintock, tbe other defendants being bis lessees. Tbe amount of tbe claim was $100. McClintock filed an affidavit of defence in which be averred:—</p> <p>“ That be is not indebted to tbe plaintiff in this case, and that tbe building described in tbe plaintiff’s lien is not subject to said lien. He further says that be is tbe sole owner of said bouse, and that tbe said Henderson Wilson and James Robinson, who are made defendants with him in this case, were bis tenants under a written lease, a copy of which is herewith filed. He further says that tbe work done by tbe plaintiff was not done for him (tbe said McClintock) by bis order or consent, or by tbe order or consent of any person authorized to act for him as bis agent; but that, by tbe terms of tbe said lease, tbe said tenants were required to make tbe improvement, for which this lien is filed, at their own expense, and no authority was given to them to contract any debt for which tbe building would be liable.”</p> <p>By tbe lease filed with tbe affidavit, McClintock on tbe 29th of January 1868 leased a store-room to Wilson and Robinson for one. year, from tbe 1st of April next ensuing. There was a stipulation for extending tbe lease. On tbe 15th of February 1869, the parties agreed, in writing, that tbe lease should be extended from April 1st 1870 to April 1st 1871. There was in this agreement tbe following covenant></p> <p>“ It is agreed, also, in consideration of the party of the first part extending this lease as above, the party of the second part is to have a new front, with glass windows and door, put in at their own cost, the same to be done in good, workmanlike manner, and of the modern style.”</p> <p>The Act of May 1st 1861, § 1 (Pamph. L. 550), authorizes a lien to be filed for repairs, alterations or additions, in certain counties, and by the Act of February 16th 1865, § 1 (Pamph. L. 150), it was extended to Allegheny county. “Provided, That nothing in this act shall render property liable to liens for repairs, alterations or additions, where the same has been altered by any lessee or tenant, without the written consent of the owner or owners, or reputed owners, or his or her duly authorized agent.”</p> <p>The lien was filed under these acts.</p> <p>Judgment was entered for the plaintiff, October 5th 1869, for $101.50, for want of a sufficient affidavit of defence.</p> <p>This was assigned for error by the defendant, McClintock, on the removal of the case to the Supreme Court.</p>

<p>1. To authorize the admission of a deed as ancient, where the only circumstance relied on is possession, nothing less than proof of possession for thirty years in conformity with the deed is sufficient to raise the presumption of its authenticity.</p> <p>2. Where proof of possession cannot be had, the deed may be read, if its genuineness be satisfactorily established by other circumstances.</p> <p>3. Circumstances in this case sufficient to authorize a deed to go to the jury as an ancient deed.</p> <p>4. Children agreed without the knowledge of their father to release to one of them all their right to the father’s land at his death, if that one would maintain the father for life. Such contract was not against public policy.</p> <p>5. Two of the children were married women who did not acknowledge the deed as such. Held, that it was binding on the others.</p> <p>6. The deed was not a legal conveyance, but the agreement having been performed by the maintenance of the father; on his death it would be supported in equity as an estoppel.</p>

<p>1. In ordinary cases the payment of money is not necessary to make a contract complete. It is only where the question is whether a future contract was not in contemplation that it becomes of significance.</p> <p>2. Evidence in this case as to a contract for. the sale of interest in a steamer, examined and held insufficient.</p> <p>3. Brown v. Finney, 3 P. F. Smith 373, compared.</p>

<p>1. It is sufficient in indictments that the charge be stated with so much</p> <p>certainty, that the defendant may know what he is called to answer and the court how to render proper judgment. '</p> <p>2. In criminal pleading, courts should look more to substantial justice than artificial nicety.</p> <p>3. Where no new fact is essential to the frame of an indictment for libel or to be found by the grand jury as the ground of a colloquium which cannot be dispensed with and the only object of an innuendo is to give point to the meaning of the language, it is not proper to quash the indictment on the ground that the innuendo may be supposed to carry the meaning of the language beyond the customary meaning of the word.</p> <p>4. It is for the jury to say whether the meaning averred in the innuendo expresses the true meaning of the word.</p> <p>5. If there be anything on the face of the libel to give color to the innuendo, it must be left to the jury.</p> <p>6. A grand jury may ignoramus a count, but cannot find less than the whole of any one count.</p> <p>■7. A petit jury may find part of a count, if it be in itself a substantial offence within the charge in the indictment. •</p> <p>8. If some of the innuendoes in an indictment for libel extend the meaning of parts too far, but there be others sufficient to give point to it, the jury may convict under the latter alone.</p> <p>9. If all the innuendoes be defective, the prosecutor has a right to proceed, to subject the defendant to costs.</p> <p>10. A petit jury may impose costs on a defendant under a defective indictment.</p> <p>11. ' Courts refuse to quash where the indictment is for a serious offence unless on the clearest and plainest ground, but will compel the party to demur, to move in arrest of judgment or to a writ of error.</p> <p>12. Bornman v. Boyer, 3 Binn. 515, Hays v. Brierly, 4 Watts 392, Vanderlip v. Roe, 11 Harris 82, approved.</p>

<p>1. A bill of lading by a railroad company contained “the dangers incident to railroad transportation, fire, and all other unavoidable accidents excepted;” the exception of loss by fire was a limitation on the common-law liability of carriers.</p> <p>2. The exception was of fire, whether unavoidabld or not, unless it was by negligence of the carrier, which cannot he provided against.</p> <p>3. The goods having been burned, the onus of proof as to fault was on the transporter.</p> <p>4. The exceptions restricted the liability of the carrier to that of a private carrier or bailee for hire, and he was liable only for want of ordinary care and skill. Per Stebrett, P. J. ■</p> <p>5. Farnham v. Camden and Amboy Railroad, 5 P. F. Smith 55, recognised.</p>

<p>1. The question in the case was whether an alleged contract had been consummated. It was proposed to ask the defendant “ whether he and plaintiff at any time made and concluded a contract, complete in all its terms, in reference to the delivery of the coal in question.” Held, that the offer was properly rejected.</p> <p>2. Whether the contract had been made was a question for the jury under the instruction of the court, upon all the evidence of what was said and done at the time of the transaction.</p> <p>3. It was not competent for the defendant to state whether the facts testified did or did not constitute a contract.</p> <p>4. A witness for plaintiff testified what he said was all that had occurred at the making of the alleged contract. The defendant testified that he had required security before he would close the contract. Held, that it was proper to examine the witness in rebuttal to contradict the defendant as to the security.</p> <p>5. If what was testified by the defendant did not take place, that it did not, could not have been given in chief.</p> <p>6. It is not assignable for error that evidence admissible in chief and cumulative was received in rebuttal.</p>

<p>1. A deed tendered containing an imperfect description, but like that in the articles, held to be admissible in an action of debt to recover the purchase-money.</p> <p>2. In an action of debt to recover the purchase-money under an agreement, the defence being fraud in misrepresenting the value of the land, evidence was inadmissible for the plaintiff that he previously had a higher offer for the land from responsible persons.</p> <p>3. Where a contract is void on the ground of public policy or against a statute, its confirmation is affected with the original taint.</p> <p>4. Where a contract is void on account of fraud practised on the party, it may be confirmed or ratified without a new contract founded on a new consideration.</p> <p>5. If a contract be merely against conscience, and the party being informed of all its circumstances and the objections to-it, confirms it, he bars himself from the relief he otherwise might have had.</p> <p>6. In an action of debt for the purchase-money of land for which he bound himself by articles to give “ a warranty deed/-’ the plaintiff declared that he had kept and observed the agreement and had been at all times ready and willing to do and perform all things required by it; the plea was, that the plaintiff was not at the date of the agreement and is not seised of the land. This was a traverse of the plaintiff’s performance and readiness to perform, and was notice to the plaintiff to prove his title.</p> <p>7. Under the pleadings the onus was on the plaintiff to prove that he had a good title before he could recover the purchase-money.</p> <p>8. Duncan v. McCullough, 4 S. & R. 487, is overruled by Pearsol v. Chapin, 8 Wright 9.</p> <p>9. Dearth v. Williamson, 2 S. & R. 498, Heron v. Hoffman, 3 Rawle 400, remarked on.</p>

<p>Error to the District Court of Allegheny county: No. 7, to October and November Term 1870.</p> <p>On the 17th of April 1869, Michael Dravo brought an action of ejectment for a lot of ground in the borough of McKeesport.</p> <p>On the trial, October 19th 1870, before Kirkpatrick, J., the plaintiff proved his title and rested.</p> <p>The defendant proved the execution of the following paper></p> <p>“ January 29th 1859, M. Dravo & Sons agree to sell house and lot in McKeesport, and located on the Diamond now occupied by Dr. Penny, to Samuel Milliken, for the sum of $1800, in the following sums and times, which he agrees faithfully to fulfil: $500 1st April 1859 ; $500 1st April 1860; $800 in lumber as it may suit.</p> <p>“M. Drayo & Sons.</p> <p>“ Samuel Milliken.”</p> <p>He then made the following offers of evidence:—</p> <p>“ The defendant offers to prove that the plaintiff in this case sold the house and lot in controversy by a parol sale, on the 29th day of January 1859, and offers the paper of that date to show the terms in part, to the defendant; that it was a part of said parol agreement that the defendant should have the possession of the property on the 1st day of April, A. D. 1859, when the first payment should be made; that on the 1st of April 1859, as agreed, the defendant paid to John F. Dravo, the plaintiff’s son, who was his partner in business and agent of the plaintiff, the sum of five hundred dollars, as per agreement, and that defendant, in pursuance of said contract, was delivered possession of said house and lot by said plaintiff, or his agent for that purpose, John P. Dravo, on said 1st day of April 1859, and said defendant did then and there take possession of the same by metes and bounds, and he has been in' full and peaceable possession from that time to this date ; that after defendant had gone into possession under said contract he paid to said plaintiff the further sum of $364.80 on the 16th day of May 1859, in lumber, as a part of said lumber specified in said agreement. Defendant offers to prove the admissions of the plaintiff that he received the said money and lumber, knowing the same to be a part of the purchase-money of said house and lot; that from and after the 1st day of April, A. D. 1859, the said house and lot were duly assessed to the defendant as his property, and he paid the taxes on the same to the present time, and he has made valuable improvements on the property, and all this done with full knowledge of the plaintiff; that the plaintiff and his son, John P. Dravo, were partners, carrying on the coal business within a mile of said house and lot, at and before and several years after said parol sale; that after said sale, and some three or four years after defendant went into possession, the plaintiff in this case, on application of the defendant, agreed for a valuable consideration to extend the time of payment of the balance of the purchase-money under said contract for one year from that date, and that within that time, and before said year expired, the said defendant did tender to the said plaintiff the full amount of the balance of the said purchase-money under said contract, and interest, which the plaintiff refused because, as he said, the property had increased in value, and he ought to have more money; that at the time of the parol purchase the plaintiff was in possession of said property by his tenant, Mr. Penny; that plaintiff notified Mr. Penny to vacate on the 1st of April 1859, in order to give possession to the defendant, in pursuance of said parol contract; that all of the facts before stated were well and fully known to said plaintiff.”</p> <p>The defendant, in connection with his other offers, further offered to prove “in connection with the fact that the plaintiff has testified in this case that he'was in possession of said premises by his tenant, Mr. Penny, at the time of the sale in this case, that Mr. Penny went out of possession on the 1st day of April 1859, and that defendant went, into possession under his contract of purchase from plaintiff’s agent, John P. Dravo, and that his agent did, within a month or less after the date, pay over to him the said money paid on account of purchase-money; that plaintiff authorized his son, John P. Dravo, by parol to make the said sale, and that after said sale was agreed upon, as stated in the other offers, the plaintiff, or his agent for that purpose, put the defendant in possession, in pursuance of said agreement, and plaintiff received all the purchase-money paid, to wit, $860.</p> <p>“ That plaintiff has admitted when fully advised of all the facts and all the terms of the sale, that he had fully authorized and consented to all the terms of the sale made hy his said agent, and that he did not now claim to recover in this action on the ground that he did not agree to the original sale as negotiated by his son, but claimed to recover on the ground that three or four years ago, after said sale, the defendant agreed by parol to give up his rights under said sale and become his tenant, and that the payments made were to be applied as rent. That the defendant, while in possession, made valuable improvements, and that the plaintiff admitted at least four years ago that he knew the defendant had been making from time to time since he went into possession, valuable improvements on the property.”</p> <p>The defendant further offered in evidence “ a paper dated January 1st 1869, signed M. Dravo & Sons, being a notice to defendant’s tenants to quit possession, to be followed with evidence that this plaintiff commenced a judicial proceeding before A. S. Nicholson, Esq., an alderman of this city, to dispossess the said defendant of the property in dispute, and that this notice he made the ground of that proceeding. Defendant will also offer the evidence of said Alderman Nicholson that said proceeding was commenced by the plaintiff on the affidavit of plaintiff; also, the papers and all the proceedings in that case before said alderman.</p> <p>“ The object of the offer is to show that this plaintiff acted in regard to the ownership of this property under the name of M. Dravo & Sons, and in explanation of the signature to the original contract of sale, and it is an admission on the part of plaintiff as to the manner the property was held by the firm of M. Dravo & Sons, as to its being partnership property.”</p> <p>• These offers were all rejected and several bills of exception sealed; and the court directed the jury to find for the plaintiff.</p> <p>The verdict was for the plaintiff.</p> <p>The defendant took a writ of error, and assigned for error the rejection of his offers of evidence and the instruction of the court to the jury.</p>

43. This was an appeal by “The Credit Mobilier of America,” from a settlement of tax against them by the accounting officers of the Commonwealth. Held: &c. “ 8. The said trustees shall appoint a competent person as secretary, who shall keep a faithful record of all their acts, &c. “ 4.

65, to January Term 1866. This was an action on the case brought September 18th 1865, by Louisa Anker against the Pennsylvania Railroad Company for negligence resulting in the death of her son, Herman Anker, whilst a passenger on the defendants’ cars.

196, to July Term 1869. On the 6th-of October 1868, the Court of Quarter Sessions of Philadelphia, on the petition of Samuel B. Bailey,. appointed viewers to' assess damages to him by reason of the opening of Delaware Avenue, between Davis and Catharine streets, through a piece of ground, owned by the petitioner.

51, to July Term 1869. This was an action on the case by James McElwee and Jane his wife against the West Chester and Philadelphia Railroad Company, for damages for the' death of their son, Mark McElwee, resulting from the negligence of the defendants. The writ issued May 6th 1869. ■ The main track of the defendants from West Chester crosses Walnut street and Chestnut street, in West Philadelphia.

285, to January Term 1870. In the court below this was an amicable action of debt and case stated, in which Herman B. Barclay and James C. Barclay were plaintiffs and S. Weir Lewis was defendant.

This case was a quo warranto issued, March 19th 1870, out of the Supreme Court, Eastern District, at the relation of John Fabricius Girard against Joseph Sanson to answer by what warrant since the 18th of February 1869 he had exercised, and was exercising the rights, &c., “ of interpreter of foreign languages in Courts of Common Pleas, &c., &c., in Philadelphia, which the suggestion of the relator averred,” were lawfully and exclusively vested in him by the commission of the…

13, to July Term 1870. This was a scire facias sur mortgage, issued February 17th 1869, by William McCarthur, treasurer of the Workingmen’s Building Association of Germantown, against Michael McShane, with notice to Algernon L. Ashmead and James F. Langstroth, terre-tenants. The terre-tenants pleaded payment with leave, &c. The mortgage, as described in the writ, was from the defendant to the plaintiff, dated May 1st 1866, for $700 with interest.

<p>1. V. & S. entered into articles of limited partnership, Y. as special partner, to contribute $3000 in cash; he contributed in cash about $700, and the remainder in goods; no appraisement of the goods was made and the sign was in the name of S. only, &c. Held, that under the Act of March 30th 1865, V. was to be treated as a general partner.</p> <p>2. The goods contributed by V. were subject to all the incidents of property of a general partnership and were not the sole property of Y.</p> <p>3. On an execution against one partner the sheriff can levy only on the interest of the partner in the firm and cannot seize the goods of the firm.</p> <p>4. Firm goods were levied on as the property of S., one of the partners: in an interpleader, the issue was to try whether the goods were Y.’s, the other partner. The court in answer to a point charged that the sheriff could levy only S.’s interest in the firm, but added he might seize the corpus. Meld, that the point was irrelevant and the qualification did Y. no harm.</p> <p>4. If the issue had been whether the goods were the firm’s, the qualification would have been error.</p>

<p>1. More than fire years after a decedent’s death an administrator obtained an order for sale of real estate for the payment of debts; a creditor who had obtained a judgment after the death had no standing to appeal from the order.</p> <p>2. If he were a creditor with an unexpired lien, the Orphans’ Court sale would be a good one and he would be entitled to the proceeds if there were no other creditors.</p> <p>3. The administrator was the proper person to make the sale under the 35th and 36 th sections of Act of February 24th 1834.</p> <p>4. The policy of the law is to bring decedent’s estates into the Orphans’ Court where creditors and heirs can have their own rights considered and assail others.</p>

18, to July Term 1870. . - This was a scire facias, issued November 15th 1869, by the City of Philadelphia to the use of “The American Dredging Company” against William Easby, owner, &c., on a claim in the same form, filed November 10th 1869, for dredging,. &c., a dock in the river Delaware, opposite the premises owned by the defendant. The amount of the claim was $1203.11.

163, to July Term 1870. The decree appealed from was refusing .to admit to probate, as the will of George A. Alter, a paper writing, signed “ Catharine Alter.” Catharine Alter was the sole devisee, legatee and executor named in the will, and was the appellant.

<p>1. The city filed a municipal claim against a lot, and afterwards filed another under which the lot -was sold for a sum less than would pay the first lien. Meld, that under the Act of March 11th 1846, the first lien was not divested further than the proceeds of sale were applicable to it.</p> <p>2. The fact that both liens were in favor of the city did not vary the ease.</p>

142.' These proceedings were commenced, April 8th 1870, before David Beitler and George Moore, Esquires, two aldermen of Philadelphia, by John Baxter against James Buchanan to recover possession of “ a store, tenement and appertenances” at the corner of Second and Christian streets, Philadelphia.

119, to July Term 1870. This was an action on the case for nuisance, brought to November Term 1869, by Godfrey M. Young against Andrew S. Leedom.

128. This was an action on the case, brought April 9th 1869, by Joseph Moyer against thé Burgess and Town Council of the Borough of Norristown.

<p>1. The half-pay of an officer of the government is not liable to be taken by'his creditors.</p> <p>2. The pay having reached the beneficiary (a lunatic) and lost its distinctive character and being in the hands of his committee, as a distributable fund it is to be governed by the direction of the law.</p> <p>3. A surplus of the pay not needed for the lunatic’s subsistence may be applied with the sanction of the court for the payment of his debts.</p> <p>4. His pay in the future could not be assigned by him if sane, nor intercepted by creditors.</p> <p>5. In the distribution of such fund in the hands of the committee, it is not liable to the claim of the $300 exemption against creditors.</p>

174, to July Term 1870. This was an action of covenant, issued November 2d 1867, by William D. Evans against Isaac Eegely.

179. This was an amicable action of covenant and case stated, entered August 19th 1870, between T. Waters Ferree, plaintiff, and The Oxford Fire and Life Insurance, Annuity and Trust Company, defendants. The case stated showed the following facts:— ‘ On . the 14th of January 1869 the defendants, by policy No. 65, insured the property of the plaintiff, amongst other things a frame house for $4000. .

24. ■ This was an action of assumpsit by James S. Kirk against Timothy Slack, to recover the sum of $310.20, the amount paid by the plaintiff to the National Bank of Oxford, on a note drawn by Thomas & J. P. Scott and endorsed by the plaintiff and defendant.

<p>1. A bond signed by an illiterate obligor under a misrepresentation of its contents is not his deed, and may be avoided under the plea of non est factum.</p> <p>2. Where a'bond is signed with a knowledge of its contents on an inducement by a misstatement of facts, it’ is the deed of the obligor, but may be avoided by the misstatement.</p> <p>3. One who has been convicted and is undergoing his sentence for embezzlement as a public officer is a competent witness.</p> <p>4. The nature of- the.offence, not its punishment, determines its character as to infamy.'</p> <p>5. The tendency of the judicial mind is against objecting to testimony.</p>

366. This was a feigned issue directed October 1st 1869,. between James McHugh, plaintiff, and The.County of Schuylkill, defendant, to try whether a bond on which judgment had been entered and which purported to have been signed by the plaintiff, had' been executed by him.

Court of Common Pleas of Chester county: No. 257,.to January Term 1871. . This was an amicable action of debt and cáse stated, in which ' Henry Eby was plaintiff and Joseph Pratt was.defendant. It was commenced-September 6th 1870.

Appeals from the Court of Common Pleas of Snyder county: In Equity: No. 316, 317, to January Term 1870. On the 25th of September 1865, two bills were filed against A. S. Cummings and Louisa E. Cummings his wife; one by Calvin R. North and Annie R. North his wife; the other by John P. Richter.

<p>1. An act authorized a corporation to improve a stream by removing obstructions, deepening it and protecting the banks so as to make it a “ floating stream,” but not to extend “the means of floating beyond the natural flow of the water of said creek.” This confined the powers of the corporation within the channel and gave no right to interfere with riparian owners.</p> <p>2. The act gave the company the right to enter on lands on the creek to obtain material and to deposit dirt, &c., paying compensation to be ascertained as railroad damages, for which the stockholders should be responsible: “ Provided also,” that the stockholders should be personally responsible for damages to private property in the exercise of the privileges conferred “or by the acts, omissions or neglect of said company,” &c. This is an additional liability to that for damages for entry on the land, &c.</p> <p>3. The one is assessed compensation for use, material, &c., the other damages for injuries suffered, &c.</p> <p>4. If the company by splash floods or filling the channel with jammed logs caused the water to overflow lands, they are liable for the injury.</p> <p>5. The privilege of improving the channel, &e., is subordinate to the rights of the riparian owners, and the liability is not confined to the stockholders as such but primarily attaches to the corporations.</p> <p>6. Por injuries to riparian owners by causing the stream to overflow, the remedy is by common-law action, which would be an action on the case.</p> <p>7. The opinion of a witness acquainted with the facts, of the total or aggregate loss or value of injury, is evidence as to the amount, without describing the elements in detail.</p>

120, to July Term 1870. This was an action of assumpsit, brought March 13th 1869, by Frederick Zimmerman and Frank L. Herdic, endorsees of E. Lowe, against Moses Anderson.

281, to January Term 1870. This was an action of replevin for a quantity of lumber, brought May 6th 1869 by John Craig and Charles Blanchard, trading as Craig & Blanchard, against John Wendt. The sheriff returned that he had replevied 179 logs and 1752 feet of boards which had been claimed by the defendant as his property and a claim property bond given by him.

164, to July Term 1870. This was a scire facias sur mortgage, issued August 81st 1867, by James B. Smith and Josephine C., his wife, late Josephine C. Malony, in her right, against Samuel A. Cornman and John Lancaster terre-tenant.

<p>1. Wunder made a fraudulent conveyance of land to his wife, after which two judgments were recovered against him and the land conveyed sold under the last judgment. Held, that the proceeds were payable to the first judgment.</p> <p>2. As to subsequent creditors the conveyance to the wife was no conveyance, the land was bound by the first lien, and the fact that the money was made by an execution on the second lien gave that lien no preference.</p>

207, to July Term 1870. * This was an amicable action of covenant between Edward Lyon, plaintiff, and Franklin Swayne, defendant, filed June 29th 1870i The following facts were agreed on in a case stated in the action. On the 11th of February 1865, Sarah II.

100, to January Term 1871. This was a feigned issue under a sheriff’s interpleader, in which George H. Bissell and others, trading as George II. Bissell & Co., were claimants and plaintiffs, and A. H. Steel defendant; the issue was made up September 7th 1868. The goods in controversy were 516 barrels of petroleum, levied on as the property of H. W. Scott & Co. under an execution -at the suit of A. H. Steel, the defendant in the interpleader.

<p>1. Ash. devised his residuary estate real and personal to several persons, and directed in case of the death of either of them during his life that such one’s devise or bequest “shall not thereby lapse but shall go to and be taken by the heirs, executors or administrators of said legatees or devisees so dying in the same manner as if the same had been specifically devised.” Two of the devisees died without issue having made wills. Held, that their shares passed to their heirs and next of kin and not to the devisees and legatees under their wills.</p> <p>2. “ Heirs” in the substituted gift was used in its technical sense and is a word of purchase.</p> <p>3. “ Heirs” is to be taken in its technical sense, unless there be something in the will to show that it was used in a broader sense.</p> <p>4. - “ Heirs” in Pennsylvania, when used as a word of purchase, means statutory heirs, those who take under the ihtestate acts.</p> <p>5. One of the predeceased devisees left a widow. The question whether she took any interest in his lapsed devise is of so much doubt that the other devisees could not convey a marketable title without her release.</p>

142, to January Term 1871. This was an action of covenant, brought September 12th 1870, by Bernard Berens against Thomas J. Martin and John Monroe.

162. This appeal arose from the decree of distribution of the balance found to be in the hands of William V. Keating, trustee under the will of Peter Provenchere, deceased, who died in 1825, having made his will dated the 8th of September in that year; by which, amongst other things, he devised a tract of land to the children of a son, and further devised and bequeathed as follows :— “ I devise and bequeath unto John Keating of Philadelphia and Jerome Keating of the county…

168, to January Term 1871. On the 17th of September 1870, The Union Banking Company of Philadelphia commenced an action of assumpsit against Elwood P. Sloan.' The cause of action was the following note:— “$2000 Philadelphia, June 9th 1870. “ Three months after date, I promise to pay to the order of Francis H. Good' two thousand dollars, payable at the Union Banking Co., without defalcation.

<p>1. A testator devised to trustees to collect, &c., rents and income and “ pay said income, &c., or so much as the trustees may think proper, &c., under all the circumstances of the case for the support and maintenance of my son Charles during his life, with the intent and purpose that the said trustees may either pay the said income, of such portion thereof as they may think proper, into the hands of my said son, or disburse the same in such way as to the said trustees may seem best for his comfortable support and maintenance, such payments and disbursements to be at all times at the sole and absolute discretion of the said trustees.. Held, that the income was not liable to attachment under a judgment against the son.</p> <p>2. The income was payable to the son at the discretion of the trustee.</p> <p>3. Until the discretion was exercised the son had nothing.</p> <p>_ 4. In such case, chancery will not interfere to control the trustee’s discretion.</p> <p>5. To subject the income to an execution would end the trustee’s diggretion and defeat the testator’s intent.</p> <p>6. This form of guarding the trust and the income from the prodigality of the son is as effectual as an express exclusion of the creditors by the will.</p> <p>7. Girard Life Insurance and Trust Co. v. Chambers, 10 Wright 485, distinguished.</p>

241, to January Term 1871. This was an action of assumpsit, brought October 15th 1870, by Samuel Yohe and Edward A. Depew, trading as Yohe & Depew, against Abraham P.'Eyre. The cause of action was the following note:— “$2703.75. “Philadelphia, June 26th 1870. “ Three months after date I promise to pay to the order of James Gordon twenty-seven hundred and'three 75-100th Dollars, without defalcation, for value received. A. P. Eyre.

<p>1. Retrospective legislation is not of itself unconstitutional, except so far as it has an effect prohibited by the fundamental law.</p> <p>2. An act which operates retrospectively to take what is by the existing law one man’s and without his consent transfer it to another, with or without compensation, violates the Bill of Rights.</p> <p>3. “ The law of the land” means due process of law by which what one alleges to be his property is adjudged not to be his, or it is forfeited upon conviction by his peers of a crime for which by law it was subject to forfeiture when the crime was committed. ' •</p> <p>• 4. The right of eminent domain being for the'safety and advantage of the public overrides all rights of private property.</p> <p>5. The legislature with the executive is upon all questions of policy the exponents of the will of the people.</p> <p>6. The Act of April 15th 1869 for extinguishment of ground-rents is unconstitutional.</p>

83, to January Term 1867. This was an'action on .the case by Robert Patterson against Thomas Clyde and Thomas H. Pierce.

<p>1. A bill set out that Huekel owned adjoining lots on which adjoining houses had been built, leaving an alley between them over which one of the houses was built, the party-wall being thus on one side of the alley. He devised one lot to one son and the other lot, being that over the alley, to another, both with the use of the alley. The plaintiff held title from the devisee of the first lot, the defendant from the other. The plaintiff claiming that the title to.the soil over which the alley, was' laid was in him, and setting out acts of the defendant interfering with his rights, asked 'for a decree to restrain defendant from so interfering, and that the boundary line should be run so as to give him the whole soil of the alley. Held, that this was an ejectment bill and could have been demurred to as such.</p> <p>2. To give chancery jurisdiction as to disputed boundary, some equity must be superinduced by the acts of the parties.</p> <p>3. The Acts of April 15th 1858 and April 5th 1859 did not vest in the courts there named more than the recognised jurisdiction of a .court of chancery in the premises, to determine equitable not legal rights.</p> <p>4. An Act of Assembly transferring any part of the jurisdiction of the common-law courts to a court of chancery., would be unconstitutional.</p> <p>5. The bill in this case set up only a legal right, for the invasion pf which ejectment is an adequate and complete remedy.</p> <p>6. Ejectment will lie to recover possession of the soil subject to either a public or [private easement.</p> <p>7. North Penna. Coal Co. v. Snowden, 6 Wright 488, Norris’s Appeal, 14 P. F. Smith 275, recognised.</p>

3, to July Term 1869. This was a bill filed, April 22d 1869, by William C. Ludwig against The St. Andrew’s Evangelical Lutheran Church of Philadelphia.