Volume 68 — Pennsylvania State Reports

January 16th 1871. Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J., at Nisi Prius. Error to the Court of Common Pleas of Chester county: No. 263, to January Term' 1870. This was an amicable action and case stated in which Evans Rogers, administrator, &c., of Pusey J. Nichols, late sheriff of Chester county, deceased, was plaintiff, and Louisa Buehler, defendant.

February 8th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Bead, J., at Nisi Prius. Appeal No. 112 to January Term 1871 from the District Court of Philadelphia : distributing the proceeds of the sheriff’s sale of John Murtland’s estate. The fund in court arose from sales of real estate of defendant, under a mortgage, and of other real estate under a judgment for arrearages of ground-rent. The writs were issued respectively to May and September Terms 1869.

<p>1. A general order of discharge from Washington to “The Philadelphia Troop of Light Horse,” was in possession of B., a descendant of M., who was captain when it was issued. Held, under the circumstances of this case to be the property of B.</p> <p>2. The possessor in 1823, a descendant of M., claimed to be the owner of the “order;” he and his descendants retained it adversely and with the knowledge of the troop till 1866, when suit was brought for its possession. Held, that if originally a bailment in M. for the troop, the trust had ended.</p>

February 23d 1871. Before Thompson, C. J., Ahnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius. Appeal from the decree of the Supreme Court at Nisi Prius: In Equity: No. 66, to January Term 1868. The bill in this case was-filed March 6th 1868, by Luther C. Edmunds, trustee for Eliza Hance Garretson, against Ebenezer Westcott, it set out:— 1 and 2.

February 23d 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius. Certificate from Nisi Prius, No. 368, to January Term, 1871. This was an action of ejectment for an undivided half of the real estate, the subject of the bill in Edmunds’s Appeal, — the preceding case, — brought, February 27th 1868, by Luther C. Edmunds, trustee for Eliza H. Garretson, against Thomas C. Harkins and others.

February 27th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius. Exceptions by George M. Chapman to the report of Samuel G. Thompson, Esq., master, distributing the proceeds of the sale of The Pittsburg and Steubenville Railroad under proceedings at the suit of Thomas McElrath.

<p>1. Brokers are persons whose business’ it is to bring buyer and seller together; they need have nothing to do with negotiating the bargain.</p> <p>2. A broker has earned his commission when he procures a party with whom his principal is satisfied and who actually contracts for the property at a price satisfactory to the owner-.</p> <p>3. He must establish his employment either by previous authority or by the acceptance of his agency and adoption of- his acts, and that the agency was the procuring cause of the sale.</p> <p>4. When a broker authorized to sell at private sale, has”commenced a negotiation, the owner cannot, pending the negotiation, take it into his own hands and complete it, either at or below the price limited and then refuse to pay the commissions.</p>

<p>February 28th and March 1st 1871. Before Thompson, C. J., Agnew, Sharswood and Wilriams, JJ. Bead, J., at Nisi Prius.</p> <p>Error to the District Court of Philadelphia: No. 223, to January Term 1871.</p> <p>This was an action of debt, brought September 30th 1869, by Sarah J. Haley and Mortimer O’Oonnor and Susan E. his wife against the City of Philadelphia. The suit was upon the award of a jury assessing damages for property of the plaintiffs taken for the Park.</p> <p>By the Act of March 26th 1867, Pamph. L. 547, a plot of ground in Philadelphia, including plaintiffs’ property, was appropriated for á Park and vested in the city. The act appointed commissioners with whom the owners of the land might negotiate and agree for the price of the land; if such agreement should not be made, the Court of Quarter Sessions upon petition to appoint a jury of twelve freeholders, and the amount of their assessment to be paid by the city.</p> <p>On the 2d of January 1868, the plaintiffs petitioned the court for the appointment of a jury to assess their damages. The jury awarded to the plaintiffs ¡$45,746.74, besides a lien and taxes on the premises. Their report was filed April 14th 1868; exceptions were filed to the report, and it was not confirmed until May 9th 1868. On the 3d of April 1869, the city treasurer paid to the plaintiffs the principal sum awarded, viz.: $45,746.74, which was received by the plaintiffs under an agreement that their right to claim interest should not be prejudiced.</p> <p>The plaintiffs’ points were:—</p> <p>1. The plaintiffs are entitled to recover interest on the amount awarded them from the day upon which the jury returned and filed their report, to wit, from April 14th 1868.</p> <p>2. The plaintiffs are entitled to recover interest upon the amount due and unpaid from the date of the payment of the principal, to wit, from April 3d 1869.</p> <p>The court (Hare, P. J.) instructed the jury to find the full amount.of the plaintiffs’ claim, and reserved the points.</p> <p>The jury found for the plaintiffs $2840.62.</p> <p>Judgment was afterwards entered on the reserved points for $2504.91, being interest from the confirmation of the report.</p> <p>The plaintiffs took a writ of error and assigned for error: not entering judgment for the amount of the verdict.</p> <p>By the Act of April 14th 1868 (a supplement to Act of March 26th 1867), § 10, Pamph. L. 1086, it is provided, amongst other things, that “ whenever any report of the commissioners or jury shall have been confirmed by the court, the valuation shall be forthwith payable by the city of Philadelphia.” By another supplement, April 21st 1869, § 9, Pamph. L. 1196, it is enacted that “ the true intent and meaning” of the Acts of 1867 and 1868 were, “ that no interest shall be allowed on damages for ground taken, up to the time of their payment on the issue of any warrant for their payment by the city of Philadelphia.”</p>

<p>1, The price of land taken for the Fairmount Park as agreed upon with the commissioners, bears interest from the day of the confirmation of their report by the court, not from, the date of the agreement.</p> <p>2. Acts of March 26th 1867 and April 14th 1868, relating to Fairmount Park, distinguished.</p>

<p>1. Where damages have been assessed or agreed on for land taken for Fairmount Park, the land vested in the City of Philadelphia, and if the landowner continues in possession it is at sufferance and he can be turned out at any time.</p> <p>2. Either under the Act of April 14th 1868, or by a common-law action of debt, the landowner may recover the damages assessed or agreed on immediately upon confirmation of the report relating to damages.</p> <p>3. Stewart v. County, 2 Barr 340, distinguished.</p>

<p>March 1st 1871. Before Thompson, C. J., A&new, Sharswood and Williams, JJ. Bead, J., at Nisi Prius.</p> <p>Appeal from the Orphans’ Court of Philadelphia: No. 278, to January Term 1870.</p> <p>The facts in this case are the following:—</p> <p>About the 2Sd of December 1868, Joseph Chew the elder died, having made his will, which was duly proved, and by which he gave the residue of his estate to his son Joseph Chew, Jr., and J. Gr. Brinckle, in trust, amongst other things to pay the income in the proportions mentioned to certain children and grandchildren during their lives, and upon the death of any of the life beneficiaries to pay the principal sum to the children of such decedent. He also authorized his trustees to sell his real estate when in their judgment it should he for the interest of his estate. He appointed the trustees executors of his will. Letters testamentary were granted to Joseph Chew, Jr., alone, Mr. Brinckle having renounced both as executor and trustee.</p> <p>On the 2d of October 1869, the petition of Joseph Chew, Jr., the executor and all the beneficiaries, present and remote, under the will, the minors by their guardians, was presented to the Orphans’ Court, setting out as above; and further that the testator died seised of certain real estate in Philadelphia, which was subject to a ground-rent of $686 per annum, which Joseph Chew, Jr., as executor and trustee, had agreed to sell to Benjamin H. Brown for $5250, subject to the ground-rent, provided authority to make such sale should be granted to him by the Orphans’ Court; that the real estate was in a dilapidated condition and would require a large outlay of money to make it tenantable; that the price was a full price, and greater than could be obtained at public sale. They prayed the court to authorize the trustee to make the sale as aforesaid to Brown.</p> <p>The petition was referred to an auditor. On the coming in and confirmation of his report, on the 16th of October 1869, the court authorized the trustee to sell the real estate to Brown at private sale for the price, &c., as set out in the petition.</p> <p>On the 6th of November 1869, the trustee presented a petition to the Orphans’ Court, reciting the foregoing proceedings, and setting forth that nothing further had been done under the order, and that none of the purchase-mon.ey had been paid; that his cestuis que trust had notified him that one C. M. Whiting had offered $6400 for the premises, and that Whiting had also made the offer in writing to the petitioner; he prayed that the order to sell might be vacated unless Brown would be willing to give the same price. Accompanying the petition was the notice to the trustee referred to iri the petition, signed by a number of the cestuis que trust, notifying him not to make a deed to Brown until the further order of the court, as Whiting had offered $1150 more than he; and requesting the trustee to petition the court to vacate the order of sale to Brown.</p> <p>Brown filed an answer to the petition, in which he set out the original negotiation and contract with the trustee; he further represented that one Crooker held at the time of the contract a lease of the premises which he, Brown, then agreed to purchase for $1000, solely to “ obtain the title together with the possession of the property;” that an order was drawn on him by Crooker in favor of the trustee for $262.50 for rent of the premises due July 1st 1869, which order was still in the possession of the trustee.; that upon the faith of the order of sale and before notice of any dissatisfaction, he engaged a conveyancer, whose bill was $85, to prepare the necessary papers, and had paid Crooker $125 on account of the purchase of the lease; that he had been obliged in consequence of these proceedings to employ counsel, whose fees would not be less than $50; that he was unwilling to add anything to the price he had agreed to give for the property, &c.</p> <p>After argument, the Orphans’ Court, December 14th 1869, decreed, “ that the order heretofore made in the premises, to wit, on the 16th day of October last past, be vacated upon the said Joseph Chew, trustee aforesaid, paying to the said Benjamin H. Brown, the sum of $1286.50, in case the said Benjamin H. Brown shall elect to convey and assign to him, the said trustee, the lease or unexpired term of said premises so purchased by him, the said Benjamin H. Brown, of John M. Crooker, and shall the said Benjamin H. Brown so elect, the said trustee shall have the option of returning to the said Benjamin H. Brown the acceptance of him, the said Benjamin II. Brown, for $262.50, given to the said trustee on account of back rent, and upon his doing so, shall he allowed a credit to that amount on account of said $1286.50. But in case the said Benjamin H. Brown shall refuse to elect so to assign and convey the said lease or unexpired term to the said trustee, then the said order, &e., shall become vacated upon the said trustee paying to the said Benjamin H. Brown $86.50, liability he has incurred under said decree. And thereupon the said trustees have leave to sell the said premises to the said Chester M. Whiting for the price and upon the terms proposed by the said Whiting. And in case the said trustee shall not comply on his part with this decree within twenty days hereafter, the said order of October 16th last past in the premises shall stand ratified and confirmed.”</p> <p>Brown appealed to the Supreme Court from this decree, and assign ed it for error.</p>

<p>1. If one occupies land by consent and permission of tbe owner, tbe jury may presume a promise to pay a reasonable rent.</p> <p>2. It would be an answer to the plaintiff's claim upon an implied assumpsit that the occupancy bad not been beneficial.</p> <p>3. A tenant in common cannot recover in assumpsit against his fellow for tbe use and occupation of tbe common property without an express contract to pay rent.</p> <p>4. Under such contract the defendant could not set up as defence that the premises were untenantable, more than any other tenant.</p> <p>5. Uor ordinary repairs to keep the premises in the same condition, the tenant can make no set-off against rent.</p> <p>6. If a tenant put permanent repairs on the premises without consent of the landlord, he cannot charge the landlord for them.</p> <p>7. An express contract to pay rent may be proved under a count for use and occupation.</p> <p>8. Statutes 4 Anne c. 16, § 14, and 11 Geo. II., c. 19, l 14, as to use and occupation, considered.</p>

<p>March 1st and 2d 1871. Before Thompson, 0. J., Agnew, Sharswood and Williams, JJ. Bead, J., at Nisi Prius.</p> <p>Error to the District Court of Philadelphia: Of January Term 1870, No. 852.</p> <p>In the court below James Bain and James N. Kern, trading as Bain & Kern, on the 19th of September 1868, brought an action of trespass d. b. a. against Peter Lyle, sheriff of Philadelphia.</p> <p>On the 23d of August 1866, judgment was entered on a bond and warrant of attorney in favor of Greorge B. Corry against William Austin for $7000. On the 11th of May 1867, a fi. fa. was issued on this judgment, and his personal property sold by -the sheriff on the 24th of May to Corry.</p> <p>On the 25th of May, Amos Funk recovered judgment against Austin for $849.17, on which a fi. fa. was issued, and the sheriff levied on the goods previously sold to Corry under his judgment and execution. Corry claimed the goods and gave his bond, &c., under the Sheriff’s Interpleader Act; the sheriff withdrew from the possession of the goods and delivered them to Corry. On the 29th of July, whilst the interpleader issue was pending, Charles S. Poole obtained a judgment against Corry for $4000, and issued an execution, on which the sheriff sold and delivered the same goods, then in possession of Corry to Bain, and Kern became interested in them as partner of Bain.</p> <p>On the 6th of February 1868, the interpleader issue between Corry and Funk was decided in favor of Funk, who issued a venditioni, and the sheriff took the goods which Bain had purchased under the execution of Poole against Corry, and which were then in Bain’s possession. Bain & Kern, the plaintiffs, claimed the goods. The sheriff took the usual interpleader rule, which was discharged June 4th 1868, and the sheriff -sold the goods under the venditioni.</p> <p>Tire taking and selling these goods was the cause of action in this case.</p> <p>The case was tried, January 30th 1870, before Hare, P. J., when the foregoing facts were given in evidence.</p> <p>On the trial, Bain having testified that he had been deputy under sheriff Howell, further said:—</p> <p>“ On the 25th of May 1867, to the best of my belief, there was an execution put into my hands, Funk v. Austin. I returned that nulla bona. There was an alias fi. fa. in the same case issued, and in that arose the interpleader, the return to that writ which you had read in my return. The interpleader was pending when I quitted the sheriff’s office.”</p> <p>The return to the alias fi. fa. was:—</p> <p>“ In obedience to the within writ, I levied upon certain goods and chattels as the property of the defendant, July 24th 1867, which said goods and chattels were afterwards claimed as- the property of George R. Corry, upon which claim a rule and inter-pleader was filed. Rule absolute. Narr. and bond filed. Feigned issue ordered by the court to September Term 1867, No. 22, which said issue is still pending and undetermined as appears of record. So answers James Bain,</p> <p>Dept. Sheriff,” &c.</p> <p>The court charged:—</p> <p>“ This case turns on a point of law. It is admitted that the goods sold under the venditioni exponas were those which formed the subject of the interpleader, and Bain states that he knew of the interpleader when it was framed, and actually prepared the returns. Under these circumstances your verdict must be for the defendant.”</p> <p>The jury found for the defendant, and the plaintiffs removed the case to the Supreme Court, where they assigned the charge of the court for error.</p> <p>The rule of the District Court, under the Sheriff’s Interpleader Act, is as follows:—</p> <p>“ Whenever a rule taken by the sheriff, under the 9th section of the Act, * * * shall be made absolute by the court, a feigned issue shall be formed in such case upon a wager in the usual form, to determine whether the right of property in the goods levied on and claimed, or any part thereof, is in the defendant or in the claimant, in which issue the claimant shall be the plaintiff, and the plaintiff in the execution the defendant.</p> <p>“ The declaration in such issue shall be filed by the claimant within fourteen days from the time such rule is made absolute; and within the said time the claimant shall give bond to the plaintiff in such penal sum, and with such security as shall be approved by one of the judges .of this court, conditioned that the goods levied on and claimed shall be forthcoming upon the determination of the said issue, to answer the execution of the plaintiff, if said issue shall be determined in favor of the said plaintiff in the execution, or so many of them as shall be determined to belong to the defendant, and to be subject to the execution of said plaintiff. When said declaration is filed and bond given, the sheriff shall withdraw from the possession of such of the goods and chattels seized by him under the execution as are claimed by the claimant; no action shall be brought against the said sheriff in respect of the said goods and chattels; and the question of costs, and all further questions, be reserved until after the trial of the said issues.”</p>

<p>March 2d 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.</p> <p>Error to the District Court of Philadelphia: No. 10, to July Term 1870.</p> <p>This was an amicable action and case stated, in which William Cope, Treasurer of the Mutual Building Association No. 2, of Germantown, was plaintiff, and Anthony Weisenberger, executor, &c., of Thomas Jarrett, deceased, was defendant. The case presented the following facts:—</p> <p>The Building Association was formed in May 1867, and was unincorporated. By the articles of association its object was declared to be “ the accumulation of a fund by the saving of its members to build or purchase for themselves dwelling-houses or real estate, or to enter into business, as they should deem most advisable.” It was further provided, that every member for each share held in the association should pay $1 initiation fee, and at each monthly meeting 60 cents as part of the capital stock, and 25 cents annually to form a fund to pay taxes and current expenses. When each stockholder should have received $100 for each share of his stock, or the whole fund be sufficient to divide that amount, the association was to determine and close, and the treasurer deliver all papers to the borrowing stockholders, and enter satisfaction thereon. On the death of a member his legal representatives were to receive his full interest in the association; each stockholder might have a loan of $100 for each share of his stock when the funds should warrant, the stockholders to bid openly for the loan which was to be awarded to that one offering the highest premium, who should pay the premium before receiving the loan ; the loan to be secured by mortgage or judgment in the name of the treasurer on real estate; the borrower to transfer also to the treasurer a corresponding number of his shares of stock as collateral; interest to be paid every month at the rate of six per cent, per annum.</p> <p>Thomas Jarrett, the decedent, held thirteen shares of stock, 'and in February 1868 borrowed $300, paying 21 per cent, premium and receiving $237; he gave his bond, with a mortgage for $300, and transferred to the association three shares of his stock as collateral security. In February 1869, he borrowed $1000 from the association, paying 20 per cent, premium, receiving $800 and giving his bond, with a mortgage for $1000, and transferring ten shares of stock as collateral.</p> <p>. Jarrett died in October 1869: it was agreed that November 9th 1869 should be taken for the settlement of his account.</p> <p>In the settlement of Jarrett’s account, the association claimed according to the following statement:—</p> <p>“ Dr. Amount of loan, February 22, 1868, . $300 00</p> <p>“ interest, to November 9, 1869, 30 90</p> <p>“ of loan, February 19, 1869, . 1000 00</p> <p>“ interest, to November 9, 1869, 43 83</p> <p>1374 73</p> <p>Or. Interest paid,.....$36 50</p> <p>Dues paid, ..... 169 00</p> <p>Five per cent, on dues paid, . . 8 45 213 95</p> <p>$1160 78</p> <p>Or if the defendant is entitled to full value of his stock, $1132.73 And in either case, interest from November 9, 1869.”</p> <p>The defendant stated the account as follows:—</p> <p>“Dr. Net amount of loan of February 22, 1868, . $237 00</p> <p>Interest to November 9, 1869, . . 24 29</p> <p>Amount of loan, February 17, 1869, . . 800 00</p> <p>Interest to November 9, 1869, . . 33 33</p> <p>$1094 62</p> <p>Or. Interest paid, . $36 50</p> <p>Dues paid, . .... 169 00 205 50</p> <p>$889 12</p> <p>and interest from November 9, 1969.”</p> <p>“ If settlement is to be made in accordance with tbe articles of tbe Association, then judgment for $1160.78 and interest from November 9th 1869.</p> <p>“ If the defendant is entitled to have credit for full value of his stock, then judgment for $1135.26 and interest from November 9th 1869.</p> <p>“If the defendant is entitled to a deduction for premiums paid, then judgment for $889.12 and interest from November 9th 1869.”</p> <p>The court below entered judgment for the plaintiff for $1135.26, with interest from November 9th 1869.</p> <p>This was assigned for error on the removal of the case to the Supreme Court by the defendant.</p>

<p>March 2d 1871. Before Thompson, C. J., Asnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.</p> <p>Error to the District Court of Philadelphia: No. 449,.to January Term 1870.</p> <p>This was a scire facias in foreign attachment by Peter Zimmerman against Israel L. Day, garnishee of Depue S. Miller; it was issued September 7th 1868. The foreign attachment was issued November 8th 1867 and served the same day. Judgment was entered against the defendant Miller on the 20th of June 1868 and the damages assessed at $416.83. Interrogatories were filed October 17th 1868 and answers November 7th. The garnishee, February 5th 1869, pleaded “ nulla Iona.”</p> <p>The cause was tried, November 4th 1869, before Stroud, J. The plaintiff gave evidence that the garnishee had said in November 1867, that about March 1866 he had given the defendant Ms promissory note for $5000, which matured about March 1st 1868. I-Ie then closed.</p> <p>For the garnishee, E. A. Depue, of the firm of Yohe & Depue, brokers and bankers in Easton, testified, that on February 22d 1868, the defendant at their banking-house offered the firm for sale or discount, a note dated March 1st 1866, drawn by the garnishee to the order of the defendant for $5000 in two years with interest. Witness gave $5450 for the note; he had no notice of any attachment or of anything wrong about the note; the note was protested for non-payment March 4th 1868. On the 5th Yohe & Depue gave to the garnishee a certificate that the note belonged wholly to them, having been endorsed by the defendant for a valuable consideration before maturity, and the defendant had no interest in it nor claim on the proceeds. The garnishee then paid the note to Yohe & Depue.</p> <p>On cross-examination, witness said some time before he had heard that the defendant had failed and gone to the West; he had not- heard of the attachment against Miller.</p> <p>The garnishee testified that he had determined to let the note go to protest: after learning from Depue how his firm came by the note, and consulting his counsel, he paid the note to Yohe & Depue upon receiving the certificate spoken of by Depue. Garnishee gave the defendant the note six or eight weeks before he left home for the West. He had bought from the defendant 200 shares of Warren Foundry stock, at $40 per share, and some land for $3500, making in all $11,500; he was endorser for defendant and bought the property to protect himself; for the purchase he gave him the $5000 note, and notes amounting to $6500 directly to defendant’s creditors, and had paid all but one of small amount; the price for the stock was more than its value; he knew defendant was in business troubles, but did not know then that he was going away.</p> <p>The plaintiff, in rebuttal under objection and exception, gave evidence that the defendant was largely indebted, and absconded from his-residence in Stroudsburg, and that this was rumored and known in Stroudsburg.</p> <p>The defendant submitted these points which the court refused:—</p> <p>1. If Yohe & Depue bought the note of the defendant without actual notice of the attachment before its maturity, the payment to them by defendant was a good and valid defence to this attachment, and their verdict must be for the defendant.</p> <p>2. There is no evidence that the defendant Day in any way assisted Miller in passing the note in question to Yohe & Depue.</p> <p>The verdict was for the plaintiff against the garnishee for $416.83.</p> <p>The garnishee removed the case to the Supreme Court and, amongst others, assigned for error the refusal to affirm his points.</p>

<p>1. After the death of a lessee for years, the lease is the property of the administrator, whensoever appointed, for the benefit of the estate.</p> <p>2. No act of an administratrix, although his widow, could lawfully change the right of the estate to the lease; sne could not surrender it and take another lease in her own name.</p> <p>3. The widow of the lessee was dispossessed under the Act of December 14th 1863, before the expiration of the lease, on the allegation, which she denied, that she had surrendered it and taken a new one which had expired. Held, in an appeal from the judgment of the justice, that the lease was evidence that the term had not expired and that she had not taken a new lease.</p> <p>4. The premises were a tavern; the license was evidence on the question of damages.</p> <p>5. Her letters of administration were evidence as showing the character in which she was entitled to recover.</p> <p>6. The administration related to the death of her husband, and rendered her liable to account as administratrix for any disposition made of the lease with or without her consent.</p>

<p>March 2d 1871. Before Thompson, C. J., A&new, Shakswood and Williams, JJ. Read, J., at Nisi Prius.</p> <p>Error to the District Court of Philadelphia: No. 302, to January Term 1870.</p> <p>This was an action of trespass for mesne profits to March Term 1866, brought by Samuel Winpenny against Ernst Sopp, John Born, Squire Dunkerly, Alexander Krail and Henry Becker. Sopp, Born and Krail pleaded “not guilty;” judgment was entered against Dunkerly and Becker for want of a plea.</p> <p>The cause was tried, January 6th 1869, before Greenbank, J. The plaintiff gave in evidence the record of an action of ejectment by the plaintiff against the defendants in this case, commenced June 29th 1865, for the premises for which the mesne profits were claimed, and judgment July 12th 1866; also writ of habere facias to March Term 1867, under which the plaintiff obtained possession, February 10th 1867, up to which time from June 29th 1865 the plaintiff claimed for mesne profits.</p> <p>John Hamm, for the plaintiff, gave evidence of the amount of rent collected by him as agent of the plaintiff, from the tenants of the premises. The defendants then offered to show the statement made by Dunkerly and Krail, tenants, to witness when he called on them for rent. Plaintiff objected, to the question, it was overruled, and a bill of exceptions sealed. He gave evidence of the value of the rents and profits of the defendant.</p> <p>Sopp then offered to prove that he had not been in possession of any part of the premises, nor in the receipt of any rents and profits since June 29th 1865. He also offered in evidence the record of a second ejectment for the premises brought March 3d 1866 by the plaintiff against the defendants in this case in which the verdict was in favor of Sopp. Both these offers were objected to, rejected by the court, and several bills of exception sealed.</p> <p>The court charged:—</p> <p>“ The plaintiff- brought an action of ejectment against the defendants for the property in question, and recovered a verdict and judgment therein. In February 1867, the plaintiff obtained' possession. Sopp has offered to show that he was not in possession. His possession was one of the questions in that suit, and [that suit settled that all the parties defendant therein were in possession from June 29th 1865, until February 10th 1867. The only question, therefore, is as to the amount of the damages.] The plaintiff has a right to claim interest on the mesne profits.</p> <p>“ The counsel of defendant, Sopp, has requested me to charge you as follows, viz.:—</p> <p>‘ 1. If the jury believe from the evidence that the defendant, Sopp, has not been in possession of any part of the premises in question at any time since June 29th 1865, nor in the receipt of any part of the rents or profits thereof, the verdict should be for the defendant, Sopp.’</p> <p>‘ 2. Under the evidence the verdict should be for the defendant, Sopp.’</p> <p>“ I decline to charge you as requested in either of those points.”</p> <p>The jury found a verdict for f674 for the plaintiff, on which a general judgment was entered.</p> <p>The defendants took a writ of error and assigned for error:—</p> <p>I. The rejection of the offer in the first bill of exceptions.</p> <p>2 and 3. The rejection of the offers in the other bills of exception.</p> <p>4. Not affirming defendants’ points.</p> <p>5. The part of the charge in brackets.</p> <p>, 6. Charging that plaintiff was entitled to interest on the mesne profits.</p>

March 3d 1871. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ. Certiorari to the Court of Quarter Sessions of Philadelphia: No. 20, to July Term 1870. Chestnut Avenue is laid down on the plan of the city of Philadelphia as a continuous street from Thirty-second street to the-Chestnut Hill and Spring-house Turnpike.

<p>1. Where a summons has been served ten days before the return-day and no rule of court directs otherwise, the practice is to take judgment for default of appearance after the first four days of the term.</p> <p>2. A service of the 28th of October, the return-day being the 7th of November, is ten days before the return-day, that day being left out of the count.</p> <p>3. The time for appearance in such case was on the 10th, and judgment for default on the 11th was regular.</p> <p>4. But where the declaration is not filed before the return-day the judgment is irregular.</p> <p>5. Foreman v. Schricon, 8 W. & S. 43, Dennison ». Leech, 9 Barr 164, recognised.</p>

March 6th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius. Error to the Court of Common Pleas of Berks county: Of January Term 1871, No. 450.

March 6th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius. Appeal from the decree of the Court of Common Pleas of Berks county: In Equity: No. 390, to January Term 1869.

<p>March 6th and 7th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.</p> <p>Error to the Court of Common Pleas of Berks county: No. 322, to January Term 1871.</p> <p>•On the 6th of April 1867, George W. Oakeley brought an action of ejectment against John Baisch for a tract of 10 acres and 97 perches of ore land.</p> <p>Both parties traced their title from Philip Zeiber, who being the owner of the tract in question, on the 21st of September 1844 conveyed an undivided third to George W. Oakeley the plaintiff and another undivided third to Matthias J. Richards a brother-in-law of Oakeley. On the 14th of February 1845, Zeiber conveyed the remaining undivided third to II. H. Muhlenberg, who on the 1st of October 1845, conveyed this third to Oakeley:— Oakeley thus becoming the owner of two-thirds, and Richards of one third. On the 20th of July 1849, Oakeley, in consideration of one dollar £-£ in addition to other good and valuable causes and considerations had and received from the said Matthias S. Richards at and before,” &c., conveyed to Richards in fee all his interest in the tract and also in a number of leases, amongst which were one from Weimer and another from Davis.</p> <p>On the 21st of July 1849, Oakeley and Richards entered into the following agreement:</p> <p>££ Whereas George W. Oakeley and wife, by their certain instrument or instruments of writing bearing date the twentieth of July instant, and recorded in the office for recording of deeds, &c., in and for the county of Berks, for the consideration therein mentioned, granted and conveyed in fee simple unto Matthias S. Richards of Reading (already owner of part) all the right, title and interest of the residue part of and in the vineyard property on Penn Mount, in Alsace township, Berks county, containing ten acres and ninety-seven perches, be the same more or less; also several leases for mining of iron ore, as in and by the said conveyances, on reference thereunto had more fully at large will appear. And whereas the said Matthias S. Richards, being now sole owner of the property, &c., aforesaid, notwithstanding which it is the intention of him the said M. S. Richards, that the one equal undivided half part thereof may become beneficial to him the said George W. Oakeley and family, if he shall prudently manage the same. And a reconveyance of the said undivided half part of the ten acres and ninety-seven perches, premises and leases aforesaid will be made whenever he the said George W. Oakeley shall repay the said M. S. Richards his heirs or assigns, four thousand five hundred dollars, and in the mean time shall have paid .the interest on said sum annually from the date hereof. Or in case of his premature death, in such case the survivors of his family shall be equally entitled to a redemption of the equal undivided half part of the property and leases, if so desired by them within a reasonable time thereafter, on the terms and conditions aforesaid.</p> <p>££ For the present, and until otherwise ordered; it is agreed by and between the parties that George W. Oakeley be the actuary and work the mines to the best advantage, paying the said Matthias S. Richards, his heirs or assigns, twenty-five cents rent for each and every ton iron ore mined, raised and sold, free from any_ other charges; and have in care the vineyard and culture of the grapes, and after deducting all reasonable costs and expenses attending said vineyard and culture from the products thereof, divide the profits arising therefrom and pay to the said M. S. Richards or order, one half part thereof for his share.</p> <p>“ And it is also further agreed upon, that the said George W. Oakeley -will well and truly keep an account of the trust aforesaid, and from time to time exhibit the same, and pay over to the said Matthias S. Richards, his heirs or assigns, such rents and dividends, whenever reasonably thereunto required.</p> <p>' “ And it is also understood and agreed upon by and between the said parties, that the present ore mined, estimated at four hundred tons, is reserved for George W. Oakeley, at his disposal without accountability to Matthias ¡3. Richards; and that the said George W. Oakeley is entitled to the two third parts of the vineyard crop in the present season; in all other respects this present agreement is so to be construed as in force and effect from the date hereof.”</p> <p>Richards devised the estate to William A. Richards, and he by his will, dated the 6th of April 1865, devised it to John Baisch, the defendant, “ subject however to the agreement entered into by and between my late father, Matthias S. Richards, and my uncle, George W. Oakeley.”</p> <p>Oakeley claimed that his conveyance of July 20th 1849 to Richards was a mortgage of two-thirds of the tract for a debt due by him to Richards, and that the indebtedness for which the conveyance had been made had been repaid from sales of ore and ore-rents from the land.</p> <p>On the trial before Woodward, P. J., the titles as above stated having been given in evidence by the parties respectively; the plaintiff in rebuttal gave in evidence the two ore leases from Weimer and Davis to himself before the conveyance, at different royalties, and a lease dated January 1st 1851, from Oakeley & Richards to Robert S. Buck for the unexpired time of those two leases and also of the premises in question, under which Buck was to mine 3000 tons of ore per annum, paying seventy cents per ton; also a statement from the books of the lessees (now Reeves, Buck & Co.) to August 14th 1869, showing a balance of $21,948.42, in addition to which were ore and tools belonging to Oakeley, but received by Richards, amounting to $1094.68, making the whole amount $23,043.10.</p> <p>Washington Richards testified that he had frequently heard Judge M. S. Richards say he was managing the property for Dr. Oakeley and when the debt was paid it was to be his property again.</p> <p>Plaintiff gave in evidence mortgage, notes and bonds held against him by Judge Richards, dated from February 19th to July 26th 1849, and amounting in the whole to $2252.40.</p> <p>He called Eliza S. McElroy, a sister of Judge Richards, who testified tbat a paper shown her, was a copy of a paper in the writing of her brother, she had compared the copy with the paper after William Richards’s death, it was found in the ledger in a box; it was copied and put back into the box. “ The paper was about ore; twenty-five cents till the debt was paid; it was signed M. S. Richards, Gr. W. Oakeley; did not know whether the paper had a date or not; was not quite certain whether Richards’s name was to it or not.”</p> <p>The paper was as follows:—</p> <p>“As to the Weimer and Davis lease, Mr. Oakeley proposes to give William twenty-five cents, to be considered as paying off the principal of the $4500 in course of fourteen years — get nothing further but the principal in dribs. Oakeley agrees to pay the interest on the $4500 yearly.</p> <p>“ True copy of M. S. Richards’s handwriting.</p> <p>“ Witness — Eliza S. McElrot.”</p> <p>The plaintiff offered the paper in evidence; it was objected to by the defendant as being without date or signature and would only mislead the jury if admitted. It was admitted by the court and a bill of exceptions sealed.</p> <p>The defendant then gave in evidence settlements between Oakeley and Judge Richards; and it was agreed, that in all there were fifteen;,settlements between them, commencing 6th January 1853, and ending 11th July 1859; that in these settlements M. S. Richards retained annually the sum of $270 for interest from 1850 to 1858; that he retained one-half the net proceeds of the leases.</p> <p>Other evidence was offered on both sides, not necessary to be referred to, except evidence by the plaintiff that besides his indebtedness to Judge Richards he was deeply in debt between June 1849 and April 1851 to other persons.</p> <p>The court stated the case to the jury as presented by the evidence and charged :i—</p> <p>* * * “These are the papers executed by the parties, and [under them, in view of the other evidence in the cause* the legal rights of these parties are to be settled by the jury]. It is claimed on behalf of the plaintiff, that the sum of $4500, the repayment of which was provided for by the agreement of the 21st of July 1849, formed the sole consideration for the conveyance of the preceding day; that the absolute character of the deed was qualified by the agreement, which is alleged to be a defeasance, and that the papers, taken together, amounted to a mortgage. And upon this view of the legal rights of the parties the court are asked for binding instructions that the plaintiff is entitled to a verdict for the whole of his claim, upon the jury finding that the $4500 provided for in the agreement have been fully paid. The fact of this payment is asserted on the part of the plaintiff to be found in the receipt by Judge Richards of ore-rents from Reeves, Ruck & Co., over and above the amount he was entitled to receive as the equitable owner of one-third of the property. The manner of this suggested form of payment the jury will readily understand. The evidence shows that fifteen different settlements were made between Judge Richards and Dr. Oakeley, between the 1st of January 1853 and the 11th of June 1859. The moneys due from Reeves, Buck & Co. were paid to Judge Richards, who charged the general account in the first instance with taxes and expenses, and then retained, each year, the sum of $270 for interest, withholding at each settlement one-half of the net balance and paying to Dr. Oakeley the remaining half. The plaintiff’s theory is, that equitably Judge Richards was entitled to withhold but one-third of the rents after the deduction of expenses, and that his receipt of the excess, in connection with the $270 retained annually for interest, the whole of the $4500 was paid. If the court were warranted in giving the legal instructions asked for by the plaintiff’s counsel, it would only remain for them to submit the question of the fact of this payment to the jury, and there would probably be little difficulty in reaching a result, as it would depend upon a calculation of amounts which are ascertained in the evidence.</p> <p>“ The court, however, are not able to give the instructions asked for. It has been held as a rule of law that no form of words can deprive a mortgagor of his right to redeem his land. * * * In view of the principles of law relied upon, the plaintiff’s counsel insisting that the papers in question show that the deed from Oakeley to Richards was in consideration of a pre-existing debt, and that the agreement for a reconveyance on the repayment of that debt was contemporaneous with the deed, insist upon a disposition of the whole case by instructions from the court to the jury that the transaction amounted to a mortgage. On the other hand a ruling in favor of the defendant is contended for because, on the face of the papers, it is shown that the deed and agreement were not of contemporaneous date, and because, in the view of his counsel, the agreement was for a conditional sale by its very terms. If the facts of the case were such as to justify the application of the rule of law for which the plaintiff’s counsel contend, the right of the plaintiff to recover, the repayment of the debt being proved, would perhaps be the necessary result of such an application. But [the court are not at liberty, under this evidence, to assume the disposition of the cause. They are bound to submit to the jury, under the papers and other evidence, the question as to what the real nature of the transaction between Judge Richards and Dr. Oakeley was].</p> <p>“ There is no proof of ^character so distinct as to justify the court in adopting it, as to what was- the real consideration of the conveyance of the 20th of July 1849. It does not appear affirmatively that the $4500 mentioned in the agreement formed the sole consideration for the deed. [It is for the jury to connect this deed with the agreement of the following day, if they are to be connected. If, under the evidence, the jury find that the $4500 stipulated in the agreement to be repaid, formed the whole debt of Dr. Oakeley to Judge Richards, and included all the liabilities for the doctor which the judge assumed; that the deed was/made in view of, and in order to secure the payment of that indebtedness ; and that the agreement was made for a reconveyance upon such repayment, then the principles of law which have been read to you are to be applied, and the whole contract, taken together, is to be treated as a mortgage of such interest in the property as Dr. Oakeley owned. In that case, notwithstanding the stipulation for the reconveyance of one-half of the property, the plaintiff would be entitled to a verdict for two-thirds], because the law would treat the contract of the parties as a mortgage, and would limit his rights to a recovery of his debt and interest. There would then remain the simple question as to whether the debt of $4500, with its interest, had been fully paid.</p> <p>“ The jury will thus understand that it is their duty to pass upon this whole cause. And they will perform this duty in the light given them by all the evidence that has been submitted. The testimony of Washington Richards is submitted for consideration, with the memorandum sworn to by Mrs. McElroy. In regard to this memorandum, it does not, in the opinion of the court, help or hinder the case upon either side, but it is before the jury in its connection with the other proofs on which they will have to pass. They are to consider all the facts in disposing of the main question presented to them — the family relations, as well as the business relations which existed between Judge Richards and Dr. Oakeley, — the pecuniary position of the doctor at the time, the sort of partnership in the mines which the parties formed, the transactions connected with the mines before the execution of the deed of the 20th of July 1849, and the dealings, arrangements and settlements between them after the execution of the deed and agreement, which the jury shall find to have been proved.</p> <p>“ [If the jury find it proved that the sum mentioned in the agreement was the only consideration for the deed, and that the real contract of the parties was to secure the repayment of that sum, and shall find it proved also that the sum has been repaid, the verdict should be in favor of the plaintiff for his entire interest in the land, as that interest was held previous to the execution of the deed.]</p> <p>“ [If, on the other hand, it shall he found that there were other considerations of an extent and kind that made it just and equitable that Judge Richards should retain the one-half of the net rents of the property, and just and equitable also that he should retain one-half of the property itself, then, although the jury should find the $4500 to have been paid, the right of the plaintiff would be limited to a verdict for one-half of the land.] * * *</p> <p>“ In any event, a verdict is to be rendered in favor of the plaintiff. If the sum of $4500 provided for in the agreement has been fully paid,.and the jury find, under the instructions given them, that the contract of the parties was to secure its payment as a stipulated debt, the verdict should be for two-thirds of the land in controversy. If they find that the money has been paid, and still find that there were other motives and considerations than the $4500 for the execution of the conveyance, and that, in reality, the transaction-was intended to he a contract of sale for a valuable consideration, and not a mortgage, a verdict for one-half only of the land can be rendered. If the jury find that, in whole or in part, the money has not been paid, the jury are to ascertain the sum actually due on this account from Dr. Oakeley, and render a verdict for the plaintiff for two-thirds, or for one-half of the land, as they shall find the actual original contract to require, subject to the payment within a stipulated time, of the balance which shall remain unpaid.” * * *</p> <p>The verdict was for the plaintiff for two-thirds of the land.</p> <p>The defendant removed the record to the Supreme Court, and there assigned the following errors :—</p> <p>2, 3, 4, 5 and 6. The parts of the charge enclosed in brackets.</p> <p>9. In not instructing- the jury that the deed and agreement constituted a conditional sale and not a mortgage, and that Dr. Oakley was entitled to recover one-half of the premises upon paying the amount found to be due under the evidence, viz.: '$4500 with interest from July 1859.</p>

<p>February 20fch 1871. Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.</p> <p>Appeal from the Court of Common Pleas of Philadelphia: No. 298, to January Term 1871.</p> <p>Proceedings were commenced on the petition of Howard A. Stevenson and Bosalia C. Stevenson his wife, under the Act of April 9th 1868, Pamph. Laws 785, to have Alexander Allen and William Underdown, trustees under a deed of trust made by Mrs. Stevenson while she was a feme sole, removed, and the Grirard Life Insurance, Annuity and Trust Company appointed in their place.</p> <p>The petition set out that on the 24th day of January 1870, Bosalia C. Stevenson, one of the petitioners, she being then Mrs. Bosalia C. Hunter, executed a deed of trust, conveying all the property to Alexander Allen and William Underdown, upon certain trusts; that by the provisions of said deed the property wras limited for the sole and separate use of Bosalia C. Stevenson during life; that shortly after the execution of said deed Bosalia C. Hunter intermarried with Howard A. Stevenson, the other petitioner; that Mrs. Stevenson had chosen for trustees to execute the trusts under said deed the Grirard Life Insurance, Annuity and Trust Company of Philadelphia, and prayed the court to remove the trustees named in the deed, and appoint the trust company above mentioned to execute the trusts.</p> <p>The act referred to provides: “ That where any trust now exists or is hereafter created, the cestui que trusts, or a majority of them having the life estate, shall have the right to elect or choose trustees to execute said trust; and upon petition of the cestui que trusts or parties in interest as aforesaid having such life estate, the Court of Common Pleas or Orphans’ Court in and for the City of Philadelphia, having jurisdiction, shall remove the acting trustee or trustees, and appoint other or others, as chosen or elected by said parties.”</p> <p>The trustees answered, making the deed of trust part of their answer, and averring that the deed was executed by Bosalia C. Hunter, in anticipation of her marriage, and with the design of protecting her property from her husband; that they accepted the trust at her urgent solicitation; that they were ready, willing and anxious to perform the duties imposed upon them; that they believed that Mrs. Stevenson was completely under the control of her husband, and that her petition was the result of influence.</p> <p>They denied that there was any good cause for their removal, and averred that Mrs. Stevenson had several children by her first marriage, minors, who did not join in the petition, and that Howard A. Stevenson had said to one of the respondents that the matter could be settled by the payment by the trustees of a certain amount of money.</p> <p>The court dismissed'the petition, the opinion of the court being delivered by Ludlow, J.:—</p> <p>“ This petition has been filed under the Act of Assembly, approved April 9th 1868, which provides a method by which a cestui que trust may, in Philadelphia county, choose new trustees. Two constructions may be put upon this law; one would oblige us at the mere whim of a cestui que trust, at any time, to appoint a new trustee of his selection; and the other, to make such an appointment when for any just cause the former trustee has been removed, dies or resigns.</p> <p>“ Surely we cannot adopt the first construction, because it could never have been the intention of the legislature to endanger or destroy trusts altogether. That such a result would follow in practice from such a construction is clear, for the new trustee would be placed under the control of the cestui que trust. If the power of right exists it may of right be exercised at any moment. The trustee appointed to-day, no matter how unexceptionable he may be, can be removed to-morrow on the mere petition of the cestui que trust, and so on from day to day, and week to week, and year to year.</p> <p>“ The moment a trustee, although exercising a just restraint, does a .thing which his cestui que trust does not approve, he may, —yes, if we adopt the argument of the petitioners’ counsel, — must be removed.</p> <p>“ Who is to be the master of the situation ? What is to become of the trust estate ? The person to be protected, under the supervision of the court, exercises a fatal control over the agent appointed to protect him, and even commands the court. One trustee must follow another, it may be in such rapid succession that the investments of a trust estate will hardly be known to one before his successor will be appointed; account after account-must be filed, thus opening the door to prejudicial litigation, with its inevitable cost. It is our duty to rescue this Act of Assembly from a construction which will produce such chaos as this. Fortunately we can do so by holding the act to be so far directory as to permit us to judge of the existence of some cause of removal. When such cause does in fact exist, and the cestui que trust may nominate, if we approve of his nominee we will appoint him. In the argument the counsel for the petitioner admitted that we were not bound to appoint an improper person as a trustee, even upon the nomination of the cestui que trust; by analogy, we think it just as reasonable not to remove a trustee without cause, and for the reasons we have already stated.</p> <p>“We do not now discuss the question of the constitutionality of the act; give to it our construction, and it is clearly constitutional. We only add that should the petitioners’ construction be the true one, then it is very questionable how far any Act of Assembly which, if not in form, in fact destroys every substantial characteristic of a trust, can be consistent with our constitution.</p> <p>“ As this petition presents no reason why the present trustee should he removed, we decline to grant its prayer.”</p> <p>The petitioners appealed, and assigned for error the dismissal of the petition.</p>

<p>1. It has always been the policy of the legislature to require conceded rights in navigable streams to be subordinate to the public rights.</p> <p>2. The Schuylkill Navigation Company by its charter could lease, &c., water-power, “provided that it be so done that it shall not at any time impede or interrupt navigation.” The use of the water for Philadelphia, under a contract with the company as a power to supply water to the citizens, could not be so exercised as to impede, &c., navigation.</p> <p>3. Where a public nuisance results in a private injury, the injured party has an action against the wrongdoer.</p> <p>4. During a severe drought, Philadelphia used the Schuylkill water as a power in supplying the city, to such extent as to prevent boats from passing through the company’s navigation. Held, that the city was liable to the boatmen for their injury from the detention, notwithstanding she had permission from the company to draw off the water.</p> <p>5. In such case they were joint wrongdoers.</p> <p>6. Torts are joint and several; one may be answerable for the wrong done by both tort-feasors; it cannot be apportioned.</p> <p>7. The use of the water for the citizens for domestic purposes could not be restrained by legislation or grant.</p> <p>8. Dor such purposes the law of paramount necessity would have justified the taking.</p> <p>9. The maxim, Actus Dei nemini fácil injuriam, applied.</p> <p>10. In an action against the city for detention of a boat by drawing down the water, the declarations, communications and doings of city officials with the navigation company as to the subject-matter of the suit, held to be evidence.</p> <p>11. The councils passed an ordinance appropriating 825,000 for support of the boatmen during their detention: Held to be evidence for the plaintiff.</p> <p>12. The water was drawn down principally by its use for driving waterwheels as a power to supply the city with water. Held, to be no answer that she had no other machinery at the time; also, that she should have been provided with such machinery.</p> <p>13. The city and company having acted together in reducing the water, the acts and admissions of both were evidence for the plaintiff.</p> <p>14. The mayor notified the company that he would resist by force closing the gates to the water-wheels. Held, that this might be given in evidence for the plaintiff.</p>

March 7th 1871. Before Thompson, C. J., Read, Aonew and Sharswood, JJ. Williams, J., at Nisi Prius. Appeal from the decree of the Court of Common Pleas of Berks county: To January Term 1871, No. 400-J. In the distribution of the proceeds of the sheriff’s sale of the real estate of Joseph Bower. The property was sold under a levari facias on a mortgage issued by Jane Riffert, to the use of 0. Q. Korte, against Caroline Bower and Joseph Bower.

<p>March 8th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.</p> <p>Appeal from the Supreme Court at Nisi Prius: In Equity: No. 15, to January Term 1866.</p> <p>This was a hill, filed October 25th 1865, by Robert L. Brooke and William Barrington against Isaac N. Phillips, Charles M. Phillips, Thomas W. Phillips, John Phillips and the Maple Shade Oil Company. The bill set out an agreement between the plaintiffs, Alexander Richardson and John Richardson, and the Phillipses, defendants, to purchase oil-land in Venango county; each of those persons to be entitled to one-eighth part of the enterprise; that the Phillipses, on behalf of all the parties, purchased of A. Gr. Egbert an interest in the Hyde and Egbert farm for $205,000; the bill further set out the negotiations of the parties and modifications of their agreement between themselves and their organization of the Maple Shade Oil Company.</p> <p>In the 5th paragraph it set out: — In the month of February 1864, the Phillipses agreed with complainants to modify the original agreement of January 1864, and to pay to complainants, for efiecting a sale of two-thirds of the property sold to the Maple Shade Oil Company, $32,000 of the profits realized from such sale, to be given in stock at subscription prices, if the profits should be in stock, and in money, if the profits should be in money, and also by giving them the 5000 shares of stock over and above the 30,000 shares subscribed, and the 15,000 bonus shares. After the subscription was completed, and before the first instalment was paid, the Phillipses applied to complainants to modify this second agreement, upon the pretence that complainants had failed to procure subscriptions for two-thjrds of the property. The Phillipses then proposed to complainants that the share of the profits of complainants should be reduced to one-third of the 5000 shares, being 1666-f shares, and one-sixth of the profits of $95,000, being $15,833.33j- in stock, upon the sale of the property to the Maple Shade Oil Company. The complainants, deceived by the misrepresentations of the Phillipses in regard to the subscriptions to the stock, which were mainly, if not wholly, procured by the complainants, assented to this modification.</p> <p>Soon after the subscription to the stock was completed, and before the certificates were issued, its price rose considerably above the par value ; and the Phillipses claimed the right to pay to complainants the one-sixth of the $95,000 in money in lieu of stock, but the complainants declined' the proposition.</p> <p>The bill averred that large cash dividends on the stock had been received by the Phillipses, which should be paid to the plaintiffs; that by reason of their acts, the Phillipses were bound to account to the plaintiffs for the stock at the highest market-rate, together with the dividends, their share of the cash and interest. The prayers were for a decree of payment by the Phillipses of the value of the shares, dividends and interest as aforesaid; also for an injunction on the Phillipses restraining them from transferring any of the stock and on the company from paying the Phillipses any more dividends.</p> <p>The defendants demurred, alleging:—</p> <p>1. That the plaintiffs had an adequate remedy at law.</p> <p>2. .That they had no lien on the stock, giving them a right to restrain the defendants from selling it, &c. They pleaded suits by the Richardsons pending against them in equity and at law in the Court of Common Pleas of Lawrence county for the same cause of action. The demurrer was overruled and the plea disallowed. The defendants then answered amongst other things, as follows:—</p> <p>11. “We deny having agreed with the complainants in February 1864 to pay them for effecting a sale of two-thirds of the property sold to the Maple Shade Oil Company, $32,000 of the profits realized from such sale, either in stock or money; or that we agreed to give them 5000 shares of stock and 15,000 bonus shares, as is alleged in the 5th paragraph of the complainants’ bill. And we also deny that we applied to the complainants to modify such an agreement; or that we proposed to them that their share of profit should be reduced to one-third of 5000 shares of stock, and one-sixth of the profits of $95,000 in stock, upon the sale of the property to the Maple Shade Oil Company, as is also alleged in the 5th paragraph of the complainants’ bill, or anything substantially as therein averred.”</p> <p>They also denied their liability to pay the value of the stock in money or the dividends thereon as averred by the plaintiffs.</p> <p>A replication was filed and George Bull, Esq., appointed examiner and master. He filed his report as examiner and as master December 15th 1868, by which he found that the plaintiffs were to receive for their services 4041 shares of stock, which not having been delivered to them on demand should be paid for by defendants at the rate of $44 per share, the highest market price since 1864, and also the dividends and interest amounting in the whole to $235,962.24.</p> <p>On the 27th of April 1869, on the application of the defendants the case was recommitted to Mr. Bull, .with directions to open his report and take further evidence, all the plaintiffs and defendants to be examined as witnesses.</p> <p>The master took the testimony of the parties and other witnesses and reported:—</p> <p>* * * “As indicated in the original report, there appear to be two questions of fact before the master.</p> <p>“ 1. Whether or not the averment of the plaintiffs’ bill, that the transaction out of which this controversy arose, was a joint adventure.</p> <p>“ 2. Whether or not the share of the profits to which the plaintiffs were entitled, was to be all stock, or part stock and part money.”</p> <p>The master then goes on to refer to the findings of his report on the first question and the additional evidence, and says:—</p> <p>* * * “But the whole effect of the testimony of the parties upon this branch of the case, can be disposed of briefly, by the remark, that they flatly contradict each other. * * *</p> <p>“Upon the other branch of the'case, the same conflict of testimony is found to exist between the plaintiffs and defendants.</p> <p>“ Isaac N. Phillips testified that the modified agreement was made between himself and Robert L. Brooke, and that his brother Thomas W. Phillips was present. That he went to the office of Brooke & Barrington, and called Mr. Brooke out into the hall. A conversation then took place between them, the result of which was, that Mr. Brooke agreed to modify the agreement, as follows: That the plaintiffs should receive $15,833.33 in cash, and 1666 shares of stock. Thomas W. Phillips testifies to the same effect. Mr. Brooke agrees with this statement except as to the nature of the -agreemeirt, and swears that the $15,833.33 was to be in stock and not in money. That the proposition made to him in the hall, was ‘ that unless we would receive the one-sixth of the $95,000, which was the stock profit, and the one-third of 5000 reserved shares, the company'could not go through. ****** That they would pay us equitably in proportion to what we had done.’</p> <p>“ The defendants called David Craig, Esq., a member of the Lawrence county bar. * * * The only part of Mr. Craig’s deposition that is of any value in this case, is his statement in regard to the injunction suit in Lawrence county, brought by the Richard-sons against the Phillipses.</p> <p>“ With the exception of Mr. Craig the defendants offer no evidence other than their own as to this transaction. The plaintiffs recalled John L. Newbold, who testifies that he was interested with Brooke & Barrington in this adventure. He was present in the office of Brooke & Barrington when Mr. Phillips called Mr. Brooke out into the hall. He agrees with the other witnesses, so far as he saw the transaction, and adds, in corroboration of what Mr. Brooke says, that when Mr. Brooke and the two Phillipses returned into the office, the proposed modification as testified to by Mr. Brooke was explained to him in the presence of the parties, and he was asked to give his assent.</p> <p>“ The result of the evidence is simply that the plaintiffs and defendants agree in their general statements, hut when they come to the pinch of the case they disagree. Mr. Newbold reaffirms what he has once before testified to, and gives the details. In doing this he agrees substantially with the statements of the plaintiffs, and contradicts the defendants.</p> <p>“ Hiram Walbridge was also produced and examined by the plaintiffs. His evidence is not very material, with the exception that he contradicts some of the statements made by the defendants, relative to the effort made to sell the property in New York. In considering the effect of this evidence upon the former report, it is only necessary to say that Mr. Walbridge corroborates Mr. Newbold.</p> <p>“ Two of the defendants, Isaac N. Phillips and Thomas W. Phillips, state that the Richardsons got out an injunction against them to prevent any payment to Brooke & Barrington. They give this as a reason why they did not settle the matter with the latter. If this were true it might have an important bearing upon the case. But Mr. Craig, their own witness, states that he was counsel for the Richardsons in the proceeding referred to, and says in answer to a question by the master: ‘ in the equity suit commenced against the Phillips Brothers, in Lawrence county in 1864, there was no injunction issued.’ It also appears by the copy of the record of the equity proceeding in Lawrence county, annexed to defendants’ testimony, taken prior to the former report, that no injunction was actually issued. There was nothing done that in any way enjoined or restrained the defendants from coming to a settlement with Brooke & Barrington.</p> <p>“ The result of this additional evidence rather confirms the master in his former conclusion than otherwise, and does not warrant any alteration or modification of his report.</p> <p>“ The time that has elapsed since the first report was filed, makes a new computation of interest necessary, in order to ascertain the amount of the decree to be entered at this time,” &c. * * *</p> <p>The master having made corrections in the computations, reported that there was due, February 22d 1870, from the defendants Phillips to plaintiffs the sum of $246,688.04.</p> <p>The defendants filed exceptions to both of the master’s reports ; the exceptions were overruled, the report of the master confirmed March 3d 1870, and the defendants Phillips decreed to pay to the plaintiffs the amount found by the master, with costs.</p> <p>Phillips appealed to the Supreme Court.</p> <p>There was a large amount of testimony taken and reported by the examiner, and the master’s report was quite extensive.</p> <p>The main points of contention on the facts of the case were, whether the one-sixth of the profits, $95,000, equal to $15,833.33, was payable in stock or cash, and whether the whole stock deliverable to the plaintiffs was to be estimated at its highest market value or at the original price, viz., $10 per share, each subscriber being entitled, under the original arrangement, to receive one share for every two shares paid for by him, which would bring the stock to $6.66 per share.</p> <p>The decision in the Supreme Court turned very much upon the view there taken of the facts; what is before given, with the facts referred to by Judge Agnew, in his opinion, is deemed sufficient for an intelligible report of the case.</p> <p>The assignments of error were:—</p> <p>1. Overruling the defendants’ demurrer to the relief prayed for in the bill.</p> <p>2. Disallowing the defendants’ plea of the former and pending suits against them in Lawrence county, for the same cause of action.</p> <p>3. 4 and 5. Dismissing the defendants’ exceptions to both reports and confirming them.</p> <p>6. The decree of payment.</p>

March 9th 1871. Before Thompson, C. J., Bead, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius. Appeal from the Court of Common Pleas of Schuylkill county: No. 225, to January Term 1871. This was a proceeding in the court below distributing the proceeds of the sale of the real estate of James Buddy, deceased.

<p>1. An exchange of real estate has a warranty in law incident to it, giving a re-entry as well as a recovery in value.</p> <p>2. To make such assurance, it is indispensable that the word “ exchange” should be used.</p> <p>3. An exchange of chattels has not the same effect.</p> <p>4. There is incident to an exchange of chattels an implied warranty of title and on a breach a recovery in damages.</p> <p>5. When one of the parties knows he has no title, it is a fraudulent affirmation which taints the transaction and enables the other to avoid it and reclaim his property.</p> <p>6. Saylor exchanged horses with Drum, knowing that Drum had stolen the horse. Bixler, with the same knowledge, bought Saylor’s horse from Drum. The owner of the stolen horse took it from Saylor; he being in pari delicto with Bixler could not recover from him.</p> <p>7. The maxim, In pari delicto melior eat conditio possidentis, applied.</p>

<p>March 9th 1871. Before Thompson, C. J., Read, Asnew and Sharswood, JJ. Williams, J., at Nisi Prius.</p> <p>Error to the Court of Common Pleas of Schuylkill county: No. 216, to July Term 1870.</p> <p>In the court below, Michael J. Groves and others, trading as Grove Brothers, to June Term 1868, brought an action of assumpsit against the Port Carbon Iron Company for the price of 10 tons of pig iron at $46 per ton.</p> <p>The plaintiffs proved that on the 10th of November 1866, they sold to the defendants, in pursuance of written order, 10 tons of A No. 1 pig-iron, at $46 per ton cash, and so entered it in their order book, and proved the delivery of that amount of pig iron. They also gave evidence that it was the best quality of iron.</p> <p>The defendants gave evidence that they used the iron and it was of an inferior quality; that they had to break up the castings which had been made from it because of the defect in the iron.</p> <p>The defendants proposed to prove, “ that the castings made from the iron sold by the plaintiffs to the defendant, and to recover the value of which this suit was instituted, were worthless, and that the defendant was compelled to break them up, and to reheat and recast the same; that the said defendant suffered a loss by reason of said castings proving worthless, of at least $500. The plaintiffs having proved the fact that the iron was sold to the defendant for A No. 1 pig-iron of the first quality, and the defendant having shown that said iron was of an inferior quality, and not of the character represented</p> <p>The plaintiff objected to the offer.</p> <p>The court (Ryan, P. J.) rejected the-offer, saying:—</p> <p>“ The defendant has proved all of this offer except the alleged damages, and this part of the offer is rejected upon the ground that the defendant kept and used the iron, and is bound to pay what it was worth. There was no warranty for any special purpose.”</p> <p>A bill of exceptions was sealed for defendants.</p> <p>The verdict was for the plaintiffs for $562.58.</p> <p>The defendants took a writ of error and assigned for error the rejection of their offer.</p>

<p>March lOtb 1871. Before Thompson, C. J., Read, Asnew and Sharswood, JJ. Williams, J., at Nisi Prius.</p> <p>Appeal from tbe Orphans’ Court of Philadelphia: To January' Term 1871, No. 140.</p> <p>The proceedings in this case originated April 15th 1870, in the petition of Marcia C. Freeman, a daughter and legatee of Isaac Brown Parker, deceased, for a citation to Frederick Watts and John Brown Parker, executors, &c., of said deceased, to show cause why a decree should not be made ordering them to pay over to her the “sum of $272,749.27, or whatever other sum may be justly due to her out of the balance for distribution ” of the estate of the decedent. The whole of the case sufficiently appears in the following opinion of Judge Allison, the reasons in which were adopted by the Supreme Court.</p> <p>“ The petitioner, Mrs. Marcia R. Freeman, is a daughter of decedent, and a legatee and devisee under his will, which was proved before the register in this city, on the 80th day of November 1865, and had been proved in the county of Burlington, state of New Jersey, on the preceding 5th day of October.</p> <p>“ The executors having been cited by two of the heirs, filed two accounts with the surrogate of Burlington county, showing that there was in their hands for distribution, on the 81st day of December 1869, $1,457,394.58.</p> <p>“ The petitioner asserts that the assets which make up said balance are in the custody and control of the executors, one of whom resides in this city, and the other in Carlisle, in the state of Pennsylvania, and that she is domiciled in Philadelphia.</p> <p>“ The petitioner also alleges, that under the will of her father she is entitled to a portion of the aforesaid balance for distribution, amounting to $272,749.27 or thereabouts. She therefore prays for a citation to the executors, John Brown Parker and Frederick Watts, directing them to show cause why a decree should not be made ordering them to transfer to her a portion of the balance for distribution which is due to her.</p> <p>“ The answer assigns for cause against the order which the petitioner seeks to obtain, chiefly that a considerable portion of the assets can only be distributed by a decree of the proper court of the state of New Jersey, because, being assets which were held in New Jersey by the'testator at the time of his death, they are properly and of right distributable in accordance with the law of the state in which they lie, which is also the law of the testator’s domicile, Mr. Parker, at the time of his death, and for many years prior thereto, being a resident of the aforesaid county of Burlington.</p> <p>“ This brings up for decision the power of the court to take jurisdiction of the property of a decedent found in another forum, and bring it into Pennsylvania for administration and distribution.</p> <p>“ The powers and duties of executors are defined by, as they are derived from, the Acts of Assembly relating thereto. That of l14th June 1836, Purd. Dig. 768, provides that the executors over whom jurisdiction can be exercised are those who derive their authority from the ‘ registers of the respective counties,’ and in Fretz’s Appeal, 4 W. & S. 438, the Supreme Court have said: ‘ Its provisions relate solely to persons acting in a fiduciary capacity by virtue of a will, or appointment by the register or Orphans’ Court having a jurisdiction of the estate of deceased persons.’</p> <p>“ We do not allow an executor or administrator of a foreign state to come into Pennsylvania, and by virtue of his authority derived from another jurisdiction, collect the assets of the estate in Pennsylvania and carry them out of the state for administration and distribution. And where an executor removes from the state, the Orphans’ Court having jurisdiction of his accounts are authorized to vacate' his letters testamentary, and award new letters, to he granted by the register having jurisdiction, upon such security as the court may think proper: Section 27 of the Act of March</p> <p>29th 1832. And in the case of an administrator, non-residence is a cause of disqualification, by the express terms of the 27th section of the Act of March 15th 1832. In Sarkie’s Appeal, 2 Barr 159, the Supreme Court so ruled.</p> <p>“ By the 16th section of the act last cited, it is provided, if any register shall grant letters testamentary to any person not being an inhabitant of this Commonwealth, without taking the proper bond and sureties, the letters so granted shall be void, and an executor acting under them shall in all respects be treated as an executor in his own wrong, and the register and his sureties are made liable to pay all damages which shall accrue to any person by reason thereof.</p> <p>“ These several Acts of Assembly make it clear that by our law an executor derives all his authority to collect and distribute the assets of an estate which may he found within this jurisdiction, by virtue of the letters which are here granted, and that it is of these assets alone that he can be called on to render an account in this forum. We do not think the position a correct one, that because executors are subject to the Orphans’ Court as to any of the assets, they become so as to all. This would be to confound jurisdiction, and would inevitably result in a conflict of authority, which for every reason of order, in the settlement of an estate, and of safety to the person charged with the performance of such a trust, should be avoided. It is an argument which answers and defeats itself, of which the case before us is a clear illustration. The testator died possessed of property situate in five different states. If the principle contended for by the petitioner is a sound one, it follows that we have as many separate jurisdictions, each having control over a part of the assets of the estate, and by reason of such control, drawing to itself all the remaining portions, and as to the whole making separate and possibly conflicting decrees, both as to settlement and distribution. There are already two accounts filed by these executors upon compulsion, at the instance of heirs and legatees in New Jersey, as well as in Pennsylvania; the former of these accounts has been audited and stated by the surrogate of Burlington county, notice of which has been given by publication, and no objection having been made to them, a decree has been entered allowing the same as reported. The respondents say they are advised by counsel learned in the law in New Jersey, that said decrees are in accordance with the regular practice of the Orphans’ Court of that state, preliminary orders, that they are judicial determinations, that all the items with which the accountants charged themselves, as well as all of the items for which they have claimed credit, and also that the balance resulting therefrom, are correct, and allowed to remain as stated, but that said decrees are neither final nor distributive.</p> <p>“ It is further stated by the respondents, in their answer, that it is the practice of the courts of New Jersey to make a final and distributive decree upon the motion of any one in interest upon an account thus stated and settled.</p> <p>“ Taking this as a correct statement of the facts and of the law, it shows two things: that a portion of the assets which the petitioner asks may be brought into distribution here, so far as their settlements and allowance go, have already passed under the jurisdiction and decree of a foreign tribunal; and also that that which is asked to be done by us Mrs. Freeman can have done by application to the courts of Burlington county.</p> <p>“It may be objected that in the accounts filed in New Jersey, assets which were collected elsewhere are taken into those accounts, and that the same objection may properly be made there to distribution of the estate as settled by the decrees of the surrogate, that is now made to the claim of the petitioner to have all of the estate brought here for distribution. But it is a sufficient answer to this suggestion that the petitioner had legal notice of the proceedings in the courts of New Jersey, and that she has allowed the decrees of settlement to go without objection, and that if any injury is to follow from the preliminary decrees, as they now stand, it is not too late to apply to the Orphans’ Court of Burlington county for relief, as against the orders and determination of the surrogate. Nor is the principle, which we believe to be the true one in a case of this kind, without authority for its support. The cases cited by the counsel for the respondents are in affirmance of it. See Selectmen v. Boylston, 2 Mass. 384; Doolittle v. Lewis, 7 Johns. Oh. Cas. 45, 47; Dawes v. Boylston, 9 Mass. 337; Parsons v. Lyman, 20 N. Y. Rep. (Court of Appeals) 103.</p> <p>“ The case now before us is not to be confounded with one in which assets have been collected in the forum of an ancillary administration, when it becomes a question of judicial discretion, whether they shall be distributed in the forum in which they were raised, or remitted to the administrator of the domicil, to be disposed of there according to the law of the domicil, which as to personal property, is the rule of distribution everywhere. In a case of that kind, the case turns not on the fact of jurisdiction, but upon a determination of whether in the exercise of a wise judicial discretion, the funds sought to be taken to another forum, shall be allowed to go there or not. This is settled in Dent’s Appeal, 10 Harris 514; Stokeley’s Estate, 7 Id. 476; Mothland v. Wireman, 3 Penna. R. 188; and in Harvey v. Richards, 1 Mason 408. The application before us is in effect to reverse the rule, which is, unless the facts of a particular case require a ■ different course to be taken as to distribution, that after payments of debts and expenses, the assets shall be remitted to the administrator of the domicil for distribution. This is the doctrine in Stokeley’s Estate, cited above: and in Dent’s Appeal, the application to compel the ancillary administrator to transmit assets to an administrator of the domicil who resided in Washington, D. C., was refused on the specialties of that case; one of which was, the consent of the original administrator to the appointment of the administrator in Pennsylvania, and that all the claimants objected to a transmission of the funds to Mr. Dent in Washington.</p> <p>“ The domicil of the testator at the time of his death is to be regarded as the place of the principal or original administration of his estate, and if this were a request to send the balance of the assets to New Jersey for distribution, it would be entitled to be regarded with greater favor than the one we are now considering, at least so far as the personal property is concerned, this kind of property having no situs in contemplation of law. It is attached to the-owner’s person, whatever he is, and when he dies it descends according to the law of succession which prevails at the place of his domicil.</p> <p>“The respondent, John Brown Parker, asserts in his answer that the sum claimed by Mrs. Freeman is about $60,000 or $65,000 in excess of her entire interest in the estate, which of itself would render it impossible for us to make the order prayed for at this time; the true balance due to her must first be ascertained before there can be any order made to pay. The respondent also expresses his readiness to pay over to the petitioner the portion of Pennsylvania assets due to her, upon her entering the requisite security to protect the parties in remainder, which she has not yet done.</p> <p>“ Other reasons might be assigned in support of the view which we take of the claim of Mrs. Freeman, but those already stated we deem of themselves sufficient, and therefore dismiss the application.”</p> <p>Mrs. Freeman appealed and assigned the decree dismissing her petition for error.</p>

<p>1. The identical matter of an exception should he in the assignment of error; it is not enough that it appear in the bill of exceptions.</p> <p>2. Judgments were recovered against J. which were assigned to A., and under them J.’s land was sold to A.; J. retained possession and made improvements. Judgments were recovered against A. and the land was sold to T. In ejectment by T. against J. it might be proved in defence, that the judgments against him had been purchased by A. with J.’s money to protect J.’s land for him, that A, so admitted after the sheriff’s sale; and that he Had conveyed to J., by deed not recorded, with other facts tending to show J.’s ownership of the land and T.’s knowledge before his judgment against A.</p> <p>S. These facts did not constitute a parol sale of the land by A. to J. but a trust by parol, the title in the trustee and the cestui que trust in possession.</p> <p>4. T. having been informed of this took no better title by the sheriff’s sale under his judgments against A. than A. had.</p> <p>5. The limitation under which a parol trust can be enforced, does not apply when the cestui que trust is in possession.</p>

<p>March 14th 1872. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.</p> <p>Error to the Court of Common Pleas of Bradford county: Of January Term 1871, No. 133.</p> <p>On the 1st of August 1867, Jacob McNeal brought an action of trover against Israel Smith for a quantity of lumber, which plaintiff valued at $200; the plea was “not guilty.”</p> <p>The plaintiff gave evidence that in the winter of 1866-67, he took logs to the defendant’s mill to be sawed; in July 1867, plaintiff demanded the lumber from the defendant, and tendered him the price of the sawing; the defendant refused to deliver the lumber, saying that it was his own; that the logs had been taken from his land; plaintiff, when he asked the defendant to saw the logs, said to him that he was going to take them from land which he had purchased from A. B. Smith; he told defendant where the lot was, and the defendant knew where it was.</p> <p>The defendant gave evidence of a long-continued possession by him of the land; that the plaintiff lived with his father, who held a lease of the land from A. B. Smith, but it was controlled by defendant, and he notified the father to leave the place, but before he left he cut some logs near where these came from, after he had been forbidden by the defendant, who told him that he was owner of the logs.</p> <p>The plaintiff in rebuttal gave evidence deducing to Alanson B. Smith the title of a tract of which that from which this timber was taken is a part, by purchase at sheriff’s sale, under the judgments, &c., Joseph Wilkins and others, &c., the judgments referred to in the preceding case (Smith v. Tome).</p> <p>The plaintiff testified, that at different times before he purchased from A. B. Smith, he had had conversations with the defendant, who said he was agent of A. B. Smith, and had nothing to do with the land except as such agent; said the purchase-money, he supposed, belonged to A. B. Smith, as he was the only man who could give a deed for it. He detailed many conversations with the defendant to the same effect.</p> <p>W. F. Cole testified, that he purchased plaintiff’s interest in the land, and before purchasing, defendant told him he could get the title from A. B. Smith, that by understanding with the defendant the plaintiff was to have the “very logs” in suit.</p> <p>In rebuttal the defendant offered to prove that the Joseph Wilkins judgment, upon which the sheriff’s sale was made of Israel Smith’s real estate, vesting the legal title in A. B. Smith, was purchased from Wilkins by Israel Smith, and paid for with Israel Smith’s money, and that A. B. Smith held said judgment in trust for Israel Smith, and for the use of said Israel Smith, who was to have all the rights which A. B. Smith purchased under said judgment to said land. To be followed with other evidence that A. B. Smith, after purchasing in this title at sheriff’s sale, claimed he had done it for the benefit of Israel Smith; also, that after the award of Elwell and others (referred to in the preceding case), filed January 2d 1864, A. B. Smith claimed that he had got the land awarded in said submission for his brother, Israel Smith, and to help him out of his troubles, and to make a home for him.</p> <p>The plaintiff objected to both offers, they were rejected, and bills of exception sealed.</p> <p>The court (Streeter, P. J.) charged■</p> <p>“ By the award of the 6th of October 1862, made by Elwell, Maynard & Baird, the title to the Sarah Morrison tract became vested in Alanson B. Smith. It so remained till the 8th of May 1865, when Israel Smith acquired an equitable title to these lands. On the 16th of September 1865, McNeal purchased by contract with Alanson B. Smith, fifty acres of the Sarah Morrison tract, from which the logs in controversy were taken. If McNeal purchased without actual or constructive notice of Israel Smith’s interest, he took a good title.</p> <p>“ It is not claimed that he had actual notice. [If Israel Smith was at the date of the purchase in the actual, visible and notorious possession of the land, such possession would constitute constructive notice of his title. Does the evidence show any such possession in Smith ? If it does, Smith may now set up his title as a defence in this action, going upon the land occasionally to cut wood or timber, would not amount to constructive notice. I repeat his possession must have been actual, visible and notorious.]</p> <p>“ But waiving this branch of the case, it is insisted that Smith • is now estopped from setting up his title, by his conduct and declarations made to Cole.</p> <p>“ If you believe from the evidence that when Cole was about to purchase this land of McNeal, Israel Smith informed him that he had nothing to do with this land, and that if he, Cole, got Alanson B. Smith’s title, and Cole purchased upon the strength of this assurance, Smith would now be estopped from asserting a title to this land in this action. The evidence upon this point is conflicting, and you must decide the question of fact for yourselves.”</p> <p>The verdict was for the plaintiff for $71.70.</p> <p>The defendant took a writ of error and assigned for error the rejection of his offers of evidence and the portion of the charge in brackets.</p>

March 14th 1871. Before Thompson, C. J., Read, A&new and Sharswood, JJ. Williams, J., at Nisi Prius. Error to the Court of Common Pleas of Susquehanna county: No. 220, to January Term 1871. This was an action on the case brought, June 2d 1869, by Hattie Morgan, by her father and next friend James Morgan, against Dr. Abraham Chamberlin for malpractice by which her arm that had been dislocated had become stiffened.

<p>1. The Act of April 9fch 1867 (taking school-house sites) is constitutional, and the school directors can exercise the powers conferred.</p> <p>2. The use is public and the security for compensation is provided by funds raised by taxation.</p>

<p>1. Five coal corporations of Pennsylvania entered into an agreement in New York to divide two coal regions of which they had the control; to appoint a committee to take charge of their interests, which was to decide all questions and appoint a general agent at Watkins, New York; the coal mined to be delivered through him, each corporation to deliver its proportion at its own cost in the different markets at such time and to such persons as the committee might direct; the committee to adjust the prices, rates of freight, &c., enter into agreements with anthracite companies ; the five companies might sell their coal themselves only to the extent of their proportion and at prices adjusted by the committee; the agent to suspend shipments by either beyond their proportion; frequent detailed reports to be made by companies, and settlements monthly by the committee, prices to be averaged and payments made to those in arrear by those in excess, neither to sell coal otherwise than as agreed upon, and the regulations of the committee to be carried out faithfully. A statute of New York makes it a misdemeanor for “ persons to conspire to commit any act injurious to trade or commerce.” Held, that their agreement was in contravention of the statute and also against public policy and therefore illegal and void.</p> <p>2. A restraint upon a trade or employment which is general is void.</p> <p>S. A restraint upon trade to be valid must be partial, the consideration adequate and not colorable and the restriction reasonable.</p> <p>4. A .good test is whether the restraint is such as only to afford a fair protection to the party in whose favor it is, and not so large as to interfere with the interests of the public.</p> <p>5. Whatever is injurious to the public interest is void on the ground of public policy.</p> <p>6. The presumption is that restraints on trade are illegal, unless made upon adequate consideration and on circumstances both reasonable and useful.</p> <p>7. The public interest is superior to private, and all restraints on trade are injurious to the public in some degree. ^ Jj</p> <p>8. The general rule is that all restraints on trade, if nothing more appear, are bad.</p> <p>9. The combination under the agreement in this case was more than a contract, it was an offence.</p> <p>10. A combination is criminal when the act to be done necessarily tends to prejudice the public or oppress individuals by unjustly subjecting them to the power of the confederates.</p> <p>11. In such unlawful combinations the gist of the offence is the conspiracy.</p> <p>12. If the motives of the confederates be to oppress, the means they use unlawful or the consequences to others injurious, it is a conspiracy.</p> <p>13. “ A corner," whether to affect the price of articles of commerce or the price of vendible stocks, by confederation to raise or depress the price and operate on the markets, is a conspiracy.</p> <p>14. Every association to raise or depress the price of labor beyond what it would bring if left without aid or stimulus, is criminal.</p> <p>15. To fix a standard of prices among men of the same employment is not in itself criminal, but may become so if coercion, restraint, penalties or force of arms be resorted to.</p> <p>16. If the means be unlawful the combination is indictable.</p> <p>17. A draft drawn by the general agent of the corporations in this case to equalize prices in favor of one of the corporations on another of them and accepted, could not be recovered against the latter.</p> <p>18. Such transaction was not an independent cause of action.</p> <p>19. A note, &c., if but an instrument to execute an illegal contract, is tainted by the illegality and cannot be recovered.</p> <p>20. Swan v. Scott, 11 S. & It. 164, Lestapies v. Ingram, 5 Barr 71, Keeler v. Taylor, 3 P. E. Smith 468, recognised and approved.</p>

<p>March 15th and 16th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.</p> <p>Error to the Court of Common Pleas of Susquehanna county: To March Term 1871.</p> <p>This was an amicable action of ejectment commenced April 6th 1858, in Luzerne county, in which Peter A. L. Quick was plaintiff, and The Susquehanna and Wyoming Valley Railroad and Coal Company were defendants. The land in controversy was a tract of 888 acres known as the Miner tract, and a tract of 206 acres known as the Lewis tract.</p> <p>The case was tried in Luzerne county in February 1868, and a verdict and judgment rendered for the plaintiff for the Miner tract. The record was removed to the Supreme Court, the judgment reversed, and a venire de novo awarded (11 P. F. Smith 828). It was afterwards certified to the Court of Common Pleas of Susquehanna county; it was tried there, October 18th 1870, before Streeter, P. J.</p> <p>On the 4th of June 1810, the Miner lot was patented to Thomas Wright. On the 1st of August 1825, Asher Miner, executor, &c., of Thomas Wright, deceased, by virtue of authority in his will, conveyed the Miner tract,to John B. Quick. John B. Quick, Warmoldus Cooper and Abraham Lefoy, having become the owners of the Lewis lot (the southerly half of a lot numbered 43, the northerly half being known as the David lot), a patent was issued to them for it; viz. one-fourth to Quick and three-fourths to Cooper and Lefoy.</p> <p>On the 17th of October 1825,-John B. Quick, Cooper and Lefoy conveyed to Isaac Frost and J. B. Loring the Miner, Lewis and David lots in trust for an association for the purpose of mining, &c., the members of the association to hold interests in the same by fortieth undivided parts, of which John B. Quick was to retain ten or one-fourth of the whole. On the 3d of February 1844, John B. Quick conveyed to the plaintiff “ three-fourth parts or all my interest, in lot 42 (Miner) and in Lewis’s part of No. 43.” This deed was recorded.</p> <p>On the 18th of May 1853, all the title held by Frost and Loring became vested in John M. Cooper, and up to that time the interests of other members of the association, not including the interest which had been in John B. Quick, were vested in Cooper. Cooper’s title, through other conveyances, became vested in the National Anthracite Coal Company, and from them in the defendants. The leading question in the case was the Statute of Limitations.</p> <p>On the trial the plaintiff gave evidence as follows: — G-eorge Whitbeck testified that Jacob R. Quick, a son of John B. Quick, had raised coal in 1841 or 1842 on the Miner and Lewis’ lots. In 1852 Jacob R. Quick lived on the Miner lot in a log-house, and left about 1854 of his own accord; the three tracts were called “the Quick property.” He spoke of a number of other persons being on the land in controversy, and of having heard some of them say that they were there as tenants of the plaintiff. On cross-examination, his testimony tended to show that there had been no regular occupancy, and that during part of the time, some of the occupants were mining for the Anthracite Coal Com•pany. The witness was not able to speak definitely as to the dates when any of those who were on the land went on.</p> <p>Other witnesses testified of John B. Quick having come on the land in or about 1825 to 1828, and had coal uncovered on the Miner lot, but did not clear any land; brought his son Jacob on the land, who, whilst he was on it, called it his. John B. Quick himself never stayed on the land long at a time. About 1856, whilst the land was occupied by a man named Decker, the' plaintiff was* there; some three men, one of whom was Page, came there, the plaintiff forbade them ; they told plaintiff to leave and put him off; those who put him off said they did so by virtue of a writ of possession which they showed.</p> <p>Jacob R. Quick, son of John B. Quick and brother of plaintiff, testified that in 1826 a man named Tinklepaugh was on the Miner lot; his father took out coal; witness went into the Miner lot in 1841 under John B. Quick, opened a coal-bed, and remained about twelve years. In 1842 he leased a part of it to Norton; the plaintiff went into possession of the Miner lot in 1848 or 1844, after the deed from his father ; witness “ put in two or three men” who occupied the land or parts of it for plaintiff; they continued in till plaintiff was turned out. John B. Quick by his hands, from 1826 took coal from the land, and sold it to New York; witness went to Tioga county in 1852.</p> <p>D. T. Lewis had a lease from plaintiff to mine coal; he went there in 1855, and was put out of possession by Page in 1856;</p> <p>John B. Quick (in deposition) testified: that he never gave up possession, but in 1841 he leased to Jacob; that he and those under him paid the taxes until plaintiff went into possession; John Q. Smith was in under witness for eight or nine years; that the deed to Cooper and Lefoy was obtained fraudulently, and he told them they should not have possession until they paid according to the contract.</p> <p>The plaintiff gave in evidence a lease from John B. Quick (by attorney) to John Q. Smith for the Miner and Lewis lots for one year from April 1st 1834; also lease from same to F. A. L. Smith for one year from April 1st 1835; also lease from same to Jacob for three years from April 1st 1841, reciting that lessee had been in possession under a verbal agreement; also a lease from plaintiff to Baker, for two years from April 1st 1846, which was continued for one year from April 1st 1848 ; also, from same to Rummerfield, from April 1st 1854 to April 1st 1860, excepting right to mine coal; also lease from same to Daniel T. Lewis, dated November 8th 1856 till April 1857, of house on Miner lot.</p> <p>Rummerfield went into possession under his lease, and continued until removed by Page and others.</p> <p>Plaintiff then gave in evidence deeds dated May 8th and 9th 1826 from John B. Quick to Greorge Biddis for one-fourth of the Miner lot, Lewis lot and David lot, recorded May 23d, for the consideration of $6000, with evidence that Quick at their date was indebted to Biddis, who agreed to furnish him more money, and the conveyance was made as security, and the money owing by Quick had been paid. The plaintiff then offered exemplification of record of Pike county, and award of arbitrators in suit of George Biddis v. John B. Quick. Objected to.</p> <p>- 1. That it is not evidence, without first showing notice to the defendants, and those under whom they claim.</p> <p>2. That the papers are not connected together.</p> <p>3. That it is not an entire record.</p> <p>The evidence was admitted, and a bill of exceptions sealed.</p> <p>The record showed an award against Quick for $709.43, “ with consent of plaintiff. When paid, plaintiff shall convey to defendant all of above land conveyed to George Biddis as security for the above debt.” * * * The record showed satisfaction, March 31st 1835.</p> <p>Pie gave in' evidence the following assessments of taxes :—</p> <p>1806 till 1827. John B. Quick, improved and unimproved.</p> <p>1828 till 1831. George Biddis & Co.</p> <p>1832 till 1843. E. A. L. Smith, except 1841, when there was no assessment.</p> <p>1843. John B. Quick and Jacob R. Quick.</p> <p>1844 till 1849. Same, Thomas Clark, P. A. L. Quick and E. A. L. Smith.</p> <p>1850. No assessment. ’</p> <p>1851 till 1853. Jacob R. Quick.</p> <p>1854, 1855. No assessment.</p> <p>1856. Plaintiff, “ 386 acres known as Miner lot.”</p> <p>After the plaintiff closed, the defendants gave evidence tracing their title as before stated; amongst other things they gave in evidence a conveyance by the executor, &c., of Biddis to F. A. L. Smith, for an undivided fourth of land; from Smith to Clark, from Clark’s executors to Phelps, and thence through divers conveyances to the defendants; also, articles of association, dated October 17th 1825, between the persons for whom the conveyance of the land on the same day was made in trust to Frost and Loring, including John B. Quick. By the articles, reciting amongst other things that Quick was entitled to ten undivided fortieth parts of the land, the associates formed of themselves “ The Lackawanna Coal Company,” with a capital made up of the land, to be divided into 1000 shares of $50 each, of which 200 shares were to be used for working the mines, &c., and the remaining 800 shares to be divided amongst the associates in proportion to their respective interests in the land; also the transfer of 195 shares of Lackawanna Company stock by John B. Quick, the last transfer being March 14th 1827. They also gave evidence to show that John B. Quick was in their employ on the land; also, that John B. Quick had acknowledged that the land belonged to the company, and he had a small share in it, with other evidence for the purpose of showing that John B. Quick did not claim to be on the land in his own right.</p> <p>Joseph Slocum testified that he found Jacob Quick and Mrs. Phillips on the Miner lot, she having a husband living at the time. Her children were then with her.</p> <p>Defendants offered to prove by witness “ that in 1841 he found Mrs. Phillips living in the Miner house; that she said to him that the house was empty, and she was told to go in and stay, and that Jacob R. Quick came and she let him into possession with her.”</p> <p>The evidence was objected to by plaintiff as irrelevant, rejected by the court, and a bill of exceptions sealed.</p> <p>The defendant gave in evidence proceedings in ejectment at the suit of Thomas Clark against Jacob R. Quick for the Miner, Lewis and David lots in which Quick confessed judgment to Clark for the fourth on the 21st of August 1843. He also offered in evidence the record of proceedings in partition of the land in controversy, Clark against Frost and Loring, trustees. The offer was objected to and rejected, and a bill of exceptions sealed.</p> <p>The evidence was very voluminous, conflicting and complicated; it is supposed the foregoing, with the charge of Judge Streeter, will present intelligibly the questions decided by the Supreme Court.</p> <p>Defendants asked the court to charge the jury:—</p> <p>2. That, to acquire title under the Statute of Limitations by John B. Quick against his own grantees by deed, notice of his intention thus to acquire title must be shown to have been direct, clear and positive, and the statute will run only from such notice.</p> <p>3. That, under the evidence, John B. Quick was in 1825 a cestui que trust of Frost and Loring, and no sufficient evidence of notice of ouster of the trustees appears until the deed of 8th and 9th May 1826, and then only of one-fourth interest undivided in the lands in dispute, and the confession of judgment in ejectment by Jacob R. Quick, (then and at the time of service) a tenant of John B. Quick, was an attornment to Thomas Clark (which Jacob R. under the claim of plaintiff in this case had the right to make), and tolled the Statute of Limitations, so far as this defendant is concerned, as to the one-fourth interest, and for that plaintiff cannot recover.</p> <p>4. That, as to the remaining three-fourths interest undivided, plaintiff shows no sufficient evidence of notice of ouster until 1844, at the time of the deed from John B. Quick to plaintiff, describing the grantor’s interest as “ three-fourths or all my interest,” and the statute not having run since that time before the bringing of this suit, the plaintiff cannot recover for that interest.</p> <p>10. That if John B. Quick, on 8th and 9th May 1826, had any title to convey tó George Biddis, and if such conveyance should, by the jury, be believed to have been for the security of money, in the absence of testimony that these defendants had notice thereof, they are bond, fide purchasers without notice, and cannot be affected thereby.</p> <p>The court charged: * * * “ The defendants have shown a regular legal title to this land. The plaintiff cannot and does not controvert the regularity of this chain of title from the Commonwealth to the defendants. But he claims title under the Statute of Limitations, and this is the leading question in the cause. The trust deed made John B. Quick a cestui que trust of Frost and Loring; and, to enable him to acquire title by the Statute of Limitations against his trustees and co-tenants, he must oust them from the possession and hold the actual, visible, notorious, hostile, continuous and uninterrupted possession for twenty-one years. The trustees and co-tenants, in order to be affected, must have had notice of the intention of John B. Quick to change the character of the possession — in other words, notice that he claimed to hold in hostility to them. [But an ouster need not necessarily be proven by direct and positive notice of an intention to exclude the trustees and co-tenants. Ouster and adverse possession may be presumed by the jury, from ‘ open, notorious and uninterrupted possession of the whole by a tenant in common for twenty-one years, claiming the whole land as his own, and taking the whole profits exclusively to himself.’ These facts do not constitute a legal presumption of ouster — they are facts from which a jury may infer ouster and adverse possession ; if the evidence satisfies their minds, the fiduciary character of the relation has been determined and notice of such determination has been brought home to the parties to be affected.] [If the jury shall be satisfied from the evidence that John B. Quick and Peter A. L. Quick, by themselves and by tenants, held actual, visible, notorious, hostile, continuous and uninterrupted possession of this land, or any portion of it, for twenty-one years prior to 1856, and that the trustees and co-tenants had notice of such adverse and hostile holding, the plaintiff may recover to the extent of such possession.]” The court here referred the jury in general terms to the evidence on both sides relating to the possession, and proceeded : “It has been already said, the possession necessary to give title under the statute must be continuous and uninterrupted. There must be no break in the continuity of the possession. An entry by the owner or an action of ejectment prosecuted to 'judgment will suspend the statute — as it is termed, will toll the statute. [A vacancy in the possession caused by a tenant’s going out a few weeks, or even a few months, before another tenant comes in, does not break the continuity of the possession, if the landlord have his title upon record, and does not intend to relinquish his possession, and puts another tenant in before his possession is disturbed by another claimant. Peter A. L. Quick had his title upon record in 1844; but John B. Quick, who claims to have been in possession by his tenants up to that time, had no record title; and a vacancy of one day prior to 1844, caused by one tenant’s going out before another came in, would have broken the continuity of the possession. If the jury find from the evidence any such break in the possession, the previous possession goes for nothing, and the plaintiff must begin his possession anew.]</p> <p>“ On the 21st of November 1845, Frost and Loring brought an ejectment against Jacob R. Quick in the Common Pleas of Luzerne county, and in the precipe and summons described the three lots, known as the Miner, Lewis and Daniel David lot. On the 10th of May 1853, Jacob R. Quick confessed judgment, and this judgment was executed in 1856, by putting the defendants in this suit in possession. Cross-interrogatories were filed in the case, which were signed by several attorneys, and among them A. T. McClintock signed them as attorney for Peter A. L. Quick. Jacob R. Quick had purchased the Daniel David lot by deed in 1843, and he testifies that at the time of the bringing of the ejectment he was in possession only of the Daniel David lot, and was not in possession of either the Miner or Lewis lot. If Jacob R. Quick was in possession of the Miner lot by lease, or otherwise, this ejectment prosecuted to judgment tolled the statute, and, the statute not having run at that time, the plaintiff cannot recover. Or if you believe from the evidence that Peter A. L. Quick employed counsel to defend that suit, the plaintiff cannot recover, even though Jacob R. Quick was in possession only of the David lot under his deed.</p> <p>[“From the papers in evidence, and from testimony of Mr. McClintock and P. A. L. Quick, you will determine how the fact is. If Jacob R. Quick was not in possession of any other land than his own in 1845, and if P. A. L. Quick did not defend that suit or employ counsel to defend it, then the ejectment did not toll the statute, and is no bar to the plaintiff’s recovering.]</p> <p>“ There is another branch to this case to which I will now briefly call your attention. On the 8 th of May 1826, John B. Quick deeded one undivided fourth of lot 42, and of the Daniel David lot, to George Biddis. On the 9th of May he conveyed one undivided fourth of the Lewis lot to George Biddis. On the 16th of September 1830 the executor of George Biddis conveyed this title to Francis A. L. Smith. In 1841 Smith conveyed to Thomas Clark. This title is now vested in the defendants. It is claimed by the plaintiff that these deeds to Biddis were given to secure the repayment of a loan of money; and that the money has been repaid. A deed absolute upon its face may be shown by parol, if the evidence is clear and explicit, to be security for money loaned, and only a mortgage. [It is further claimed by the plaintiff that Smith and Clark had actual notice and full knowledge of the character of this deed. And it is further claimed that when the defendants and the grantees of Clark’s executors acquired title, John B. Quick was in the actual possession of the property. If you find all these facts as claimed by the plaintiff, the defendants cannot hold the one undivided fourth of the land under this Biddis title. If the deed was given to secure the repayment of a loan and has been paid, and Smith and Clark both had actual notice of this fact; and at the time Clark’s executors conveyed to John C. Phelps, John B. Quick and those claiming under him were in the actual, visible and notorious possession of the land, and continued such possession down to 1856, such possession was constructive notice of the character of this Biddis title, and the defendants will not be protected by it.] If you find any of the facts just stated against the plaintiff, the defendants will be entitled to hold this undivided one-fourth, and this right is in no way affected by the Statute of Limitations.</p> <p>“ In reference to the general question of possession, it should be observed that possession of one lot having distinct boundaries cannot be extended to another and distinct lot. In this case there is no evidence of any actual possession of the Lewis lot. The plaintiff has therefore failed to give any evidence of title to that lot under the Statute of Limitations; and as to that ¡ lot your verdict must be against the plaintiff.” * * *</p> <p>In answer to the points he said:—</p> <p>“ 2. This point is affirmed to this extent: The grantees must have had notice of John B. Quick’s intention to hold adversely to them; but that notice may be presumed by the jury if they believe from the evidence that John B. Quick, the grantor, claimed the whole land as his own, took the whole profits exclusively to himself, and continued in the actual, visible, notorious and uninterrupted possession of the land for twenty-one years prior to 1856.”</p> <p>“10. This point is correct; but if the jury find that at the time of the defendants’ purchase of this title Quick was in the actual, visible and notorious possession of the property, such possession would be constructive notice and equivalent to actual notice.”</p> <p>The verdict was for the plaintiff for the Miner lot.</p> <p>The defendants took out a writ of error, and assigned twenty-two errors:—</p> <p>4. Admitting the exemplification of the record, Biddis v. Quick.</p> <p>10. Rejecting the declarations of Mrs. Phillips.</p> <p>11. Rejecting the proceedings in partition, Clark v. Frost et al.</p> <p>14, 15, 21, 22. The answers to the defendants’ 3d, 4th] 2d and 10th points.</p> <p>16-20. The parts of the charge in brackets, the 18th assignment being to the part of the charge which related to “ a vacancy in possession for a few weeks or months,” &c.</p>

<p>March 17th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.</p> <p>Error to the District Court of Philadelphia: No. 62, to July Term 1870.</p> <p>This was an action of assumpsit, brought March 31st 1870, by Elias Kirk, endorser, against George McConeghy, on a note, a copy of which was filed, as follows:—</p> <p>■ “ $300 Feb. 18th 1869.</p> <p>Nine months after date, I promise to pay to the order of J. J. & J. P. Kirk, at the National Bank of Germantown, three hundred dollars without defalcation, for value received.</p> <p>Thomas McCaeeerty.</p> <p>(Endorsed) John J. Kirk,</p> <p>George McConeghy.”</p> <p>“Protested at maturity.”</p> <p>The defendant filed an affidavit of defence: “ That the note upon which the above action is brought was endorsed by him without any consideration, solely for the accommodation of the maker, who promised to pay the same at maturity, that he did not receive a notice of the non-payment of the said note at its maturity, and that he believes and expects to prove that plaintiff had full knowledge of the facts herein stated, and he is also advised that the copy filed is not such a paper as entitles plaintiff to judgment for want of an affidavit of defence: all which deponent expects to prove on the trial.”</p> <p>The court entered judgment for the plaintiff for $310.41 for want of a sufficient affidavit of defence.</p> <p>This was assigned for error on the removal of the record to the Supreme Court by the defendant.</p>

March 17th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius. Appeals from the decree of the District Court of Philadelphia: No. 194 and 202, to July Term 1870. To September Term 1869, a writ of fieri facias was issued at the suit of James Blake & Co. against Winston F. Rogers, and the fund arising from the sale under the writ brought into court for distribution.

<p>1. A mechanics’ lien was filed against Woodward for materials furnished to buildings on a lot described as “belonging to the above-named Woodward,” who was named in the claim “ as owner or reputed owner.” In an affidavit of defence by Woodward to a scire facias, he averred that the ground belonged to his wife, that he was in possession of the lot, and without her consent but at his own instance and for his benefit, without her knowledge he contracted for the materials, &c. Held, to be insufficient.</p> <p>2. Such a claim is no lien on the wife’s estate.</p> <p>3. The curtesy of the husband could not be levied on and sold upon a levari facias.</p> <p>4. The creditor alleging in his claim that the title is the husband’s, her title could not be set up as a defence to a scire facias.</p> <p>3. She is not a party, and cannot intervene to prevent the creditor from having his remedy against the proper and independent title of the husband.</p> <p>6. The husband cannot set up her title in his own defence.</p> <p>7. The creditor alleging in his claim that title was in the husband, could have judgment against the husband, sell and purchase his title and thus contest the wife’s claim to the property by ejectment.</p>

<p>March 17th 1871. Before Thompson, O. J., Read, Agnew and Sharswood, JJ. 'Williams, J., at Nisi Prius.</p> <p>Appeal from the decree of the Court of Common Pleas of Philadelphia: No. 158, to July Term 1870. In the matter of the distribution of the proceeds of the sheriff’s sale of the real estate of John R. Mullison.</p> <p>The money was produced by a venditioni exponas to December Term 1869, issued by George Williams against Mullison, under which a lot of ground on which were erected five buildings was sold; the money-paid into court was $5231.68, and George D. Budd, Esq., was appointed auditor to distribute it.</p> <p>The facts in the case, as shown by the report of the auditor, are these: On the 5th of March 1868, Mullison became owner of the ground sold under the execution, and afterwards divided ■ it into five'lots for building. About the 7th of September 1868, Mullison contracted by parol with William Henderson to erect five buildings for, him on the lots. On the 21st of September, and before the commencement of the buildings, he executed and delivered to Thomas J. Butterworth five mortgages of the ground, two for $1000 each and three for $800; the mortgages were recorded the same day. There was no consideration from Butter-worth to Mullison, but the mortgages were made for the purpose of raising money for Mullison, as he might need it for the houses, and there was no agreement that Butterworth should raise money for Mullison. On the 22d of September the contract with Henderson was consummated by writing, and early in October the work on the buildings was commenced.</p> <p>On the 3d of December, Charles E. Willis advanced to Mullison $1150, to secure which Mullison executed a judgment-bond upon which judgment was entered in the District Court of Philadelphia. On the same day, Butterworth, by Mullison’s direction, assigned the mortgages to Mr. Willis as collateral security for the payment of his bond. This assignment was acknowledged on the day of its date, but not recorded until January 20th 1870. The mortgages remained in the possession of Henry Haines, Esq., the agent and conveyancer of Mr. Willis, until some time in April 1869, when Mullison called at Mr. Haines’s office in his absence, and, without his knowledge, obtained the mortgages from a clerk, who supposed that Mullison was authorized to receive them. In the meanwhile the buildings were progressing towards completion, and Mullison becoming more and more pressed for money, he proceeded to use the mortgages as a means of raising money. He therefore applied to Mattys Kaas, a licensed pawnbroker, who referred him to his conveyancer, Isaac M. Post, Esq.; he, at the request of Kaas, examined the properties and pronounced them good security for the amount. On the 6th of May 1869, Butterworth, at Mullison’s order, executed assignments of the mortgages to Kaas, which were acknowledged on the same day, and recorded November 6th 1869. The assignments were absolute on their face and for the consideration of $2800. “ On the same day Kaas entered into a collateral agreement with Mullison, where- ' in the assignment of the mortgages was recited, and a condition inserted that if a certain debt of three thousand three hundred dollars, incurred by Mullison to Kaas, should be paid within six months from that date, then the said assignment to be null and void, but if otherwise then the said mortgages to become the absolute property of the said Mattys Kaas. Five hundred dollars of this sum, represented interest, or possibly a bonus, to be paid for the negotiation of the mortgages. This whole transaction appears to have been carried on by Mullison. He had possession of the mortgages. He gave information as to the condition of the property. He produced the surveyor’s certificate of survey. He obtained from Butterworth assignments in blank, in which after-wards the name of Kaas was inserted. He signed the collateral agreement with Kaas, and finally, upon a written order of Butter-worth’s, received the whole $2800 eonsideration-mon.ey, and receipted for Butterworth for the same. The money thus obtained, was applied to the payment of the debts contracted in the building operation. * * * There seems to have been no effort made to discover the true relation between Mullison and Butterworth. Mr. Kaas * * * paid his money in good faith, believing that he had purchased mortgages which were good liens on the property and subject only to the ground-rent. On the 5th of November 1869, he assigned the mortgages for a valuable consideration to Washington J. Stevenson, the present holder. Prior to the execution and delivery of this last assignment, Mr. Stevenson was notified by Richardson L. Wright, Jr., Esq., the attorney in fact of the mortgagor, that the creditors of the latter' would contest the payment of the mortgages, and, acting under the advice of Mr. Wright, Mr. Mullison declined to give a certificate of no set-off.” * * * The judgment in favor of Willis, and the mortgages as assigned to him by Butterworth, were assigned to Henry Haines, Esq., who in the distribution claimed under these assignments.</p> <p>The auditor, after further discussing the facts and examining the law, proceeded: “ From this review of the cases, the auditor finds: that a mortgage or judgment may be given to cover future advances, and as between mortgagor and mortgagee such advances will be covered, no matter when made. If there be no binding agreement to advance, and the rights of third parties have intervened, then only such advances will be covered as have been made prior to intervening encumbrances; subsequent advances only having a lien from the date of their payment; but if there be an agreement obligatory upon the mortgagee or judgment-creditor, executed contemporaneously with the mortgage or entering of the judgment, all advances made in pursuance of this agreement and conformably to it, will have a lien as of the date of the record of the mortgage or entering of the judgment. There is no distinction in this respect between encumbrances arising by judgment and those by claim filed under the laws relating to mechanics and material-men; and this whether the claim be filed prior or subsequently to the advance made, for the claim reverts to the commencement of the building and takes precedence of everything that was not a valid subsisting lien at the time the ground was broken.</p> <p>“ Now, to apply these principles to the facts of the present case. As between Mullison and Stevenson there can be no question. But the rights of three judgment-creditors and many mechanics and material-men who did work and furnished materials upon the credit of these buildings have intervened. Stevenson stands exactly as Kaas stood; he took the mortgages subject to every defence that could be made against them when they were in the hands of Kaas. The auditor does not think that the notice given to Stevenson, that the payment of these mortgages would be contested, can enter into the present consideration. Notwithstanding this notice he acquired all the rights of Kaas, to whom no such notice had been given prior to the assignment to him by Butter-worth.” * * *</p> <p>“Kaas acquired a good and valid title to the mortgages, subject to the payment of Mr. Willis’s judgment. The auditor further decides that as against the mortgagor and as against encumbrancers whose liens take effect as of a date subsequent to May 9th 1869, the day of the advance made by Kaas to Mullison, the holder of the mortgages would be entitled to receive from the fund for distribution the full sum advanced with interest. But, inasmuch as certain judgments were entered and certain mechanics’ liens accrued in the interval between the creation of these mortgages and their negotiation to Kaas, the lien of these mortgages must be postponed so as to allow priority of lien to said judgment and lien creditors. As the judgment of Willis is thus entitled to priority it relieves the ease of the discussion of the effect of the assignment of the mortgages to him as collateral security. The distribution of the fund will therefore be made according to the following scheme:—</p> <p>“1. To the liens of mechanics and material-men.</p> <p>“ 2. To the judgments entered prior to May 9th 1869, according to their seniority, as far as the fund reaches.”</p> <p>The auditor reported a schedule of distribution in accordance with the foregoing principles; and therefore excluded Stevenson from the fund.</p> <p>After exceptions by Stevenson to the report it was confirmed by the Court of Common Pleas. Stevenson appealed to the Supreme Court, and assigned the decree of confirmation for error.</p>

<p>March 20th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.</p> <p>Appeal from the decree of the Court of Common Pleas of Lehigh county: No. 30, to July Term 1870.</p> <p>The appeal in this case was from the decree of the court below, distributing the proceeds of the sale of the real estate of Charles B. McCarthy in Allentown, under an execution at the suit of Miller, Fetherwolf & Co. The contention was between the defendant under the Exemption Law and S: A. Bridges, Esq., a judgment-creditor.</p> <p>The appraisers “ summoned by the sheriff to appraise the property retained by the defendant,” under the exemption laws, certified that it could not be divided, and valued it at $600. After deducting mechanics’ lien, costs, &c., the balance for distribution was $127.79. Mr. Bridges’ judgment amounted to $382.11.</p> <p>The auditor, J. W. Wood, Esq., reported that amongst the claimants who appeared at the hearing was “ Mrs. McCarthy by her counsel, H. C. Hunsberger, Esq.”</p> <p>There was evidence that the defendant, who was a carpenter, had been living in Allentown, and before the 15th of May had been working for a Mr. Breen; on that day he left the place and took with him only his tool-chest; said he was going to Jersey to build two new houses; his wife remained; he left some furniture. A few days afterwards, persons to whom lie was indebted took some of the furniture; his wife was there and did not object to the removal. Breen, who was a creditor, remonstrated against jts removal, but the wife still allowed it.</p> <p>The auditor reported that the claim for exemption “was resisted by Mr. Bridges, on the ground, first, that McCarthy was an absconding debtor, and second, that he was a non-resident, and therefore liable to foreign attachment.” After the discussing the case the auditor allowed “ Mrs. McCarthy to have the exemption,” and in his schedule, after enumerating prior claims, he stated this claim thus: “Balance allowed defendant under Exemption Law, $127.79.”</p> <p>Mr. Bridges excepted to the report of the auditor.</p> <p>The court (Longaker, P. J., saying that the only question was whether the wife could claim the exemption for her husband) decided that she could not claim the exemption unless by^the authority of her husband, and that such authority could not be presumed from the relation of husband and wife.</p> <p>He further said: * * * “We are therefore of the opinion that the auditor erred in distributing the balance of the proceeds to the defendant. He has taken no part in these proceedings, and having departed from the state as an insolvent debtor, leaving his personal property and real estate at the disposal of his creditors, we are warranted in finding the fact that he never intended to claim the exemption. The defendant therefore having waived his privilege, his wife neither for him nor for herself, without his authority or subsequent ratification, can set it up for him. * * * The distribution must therefore be reformed so far as regards the $127.79 awarded to the defendant in the execution, and the same is hereby awarded to S. A. Bridges, Esq., on account of his judgment.”</p> <p>McCarthy appealed, and assigned this decree for error.</p>

<p>1. Replevin in which, a claim property bond has been given, is a bar to an action of trover for the same goods.</p> <p>2. A claim property bond given by the defendant extinguishes the plaintiffs property in the goods.</p>

<p>March 20th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.</p> <p>Appeal from the decree of the Court of Common Pleas of Pike county, No. 418, to January Term 1870, distributing the proceeds of the sheriff’s sale of the real estate of Daniel Y. Drake.</p> <p>Error to the Court of Common Pleas of same county, No. 117, to January Term 117, to the judgment of that court in an action of ejectment, commenced September 2d 1869, by William Brown, against Daniel V. Drake and Rachel Drake.</p> <p>The land in controversy had been the estate of Ephraim Drake, deceased, who died September 5th 1853, having made his will, proved September 24th 1853. The provisions were as follows: “■I give unto my present wife Rachel all my real and personal estate, so long as she remains my widow, to manage as she thinks best until my youngest child becomes of age, for the purpose of keeping my family together, and after she.becomes of age, if my boys should both live, it is my will then that Daniel Y. Drake and Charles Drake shall have all the real and personal estate at that time by paying to my three girls, Nancy Eliza, Sarah Ellen and Mary Ann Drake, each of them three hundred dollars, making nine hundred dollars, and then it is my will that my wife Rachel shall have her living off of my estate as long as she remains my widow. N. B. It is my will that if either of my girls should die, leaving no issue, then three hundred dollars to be equally divided between the other two girls. It is my will that my girls should have $900. And if either of my boys should die, leaving no issue, I wish my other son to have all the real and personal estate as above. Lastly, I hereby appoint my wife Rachel executor,” &c. Letters testamentary were granted to Rachel Drake. Charles Drake died April 7th 1862, unmarried and without issue.</p> <p>To February Term 1865, a judgment for $800 was recovered by Daniel M. Yan Auken against Daniel Y. Drake and Rachel Drake. On the 6th of February 1866, Daniel, claiming to own the land, and he and the widow being in possession, by articles agreed to sell it to Brown, the plaintiff: — this contract Drake refused to carry out. On the 16th of May 1868, the land devised was sold by the sheriff under executions upon the Yan Auken judgment, and was purchased by the plaintiff for $2505.</p> <p>Mary Ann Drake, the youngest child of Ephraim Drake, attained the age of twenty one-years, October 16th 1868. The widow is living, never having married, and is one of the defendants in this case. She and Daniel live on the premises.</p> <p>On the trial of the ejectment, the court (Barrett, P. J.) charged: — * * *</p> <p>“ At the time of the sale, the widow had in the land only an estate for years to terminate at a fixed period. After its termination, she was to have a living off of it, but would not be entitled to the possession. She is now entitled to the possession. Daniel Y. Drake had an estate under the will; an estate in remainder. It was a vested remainder, and was the subject of a levy and sale under the judgment against him. The sheriff’s deed conveyed that right to the plaintiffs. After the 16th. of October 1868, Daniel Y. Drake was entitled to the land in fee simple: true there were conditions that required his acceptance, but can his intention to accept be doubted ? He was in the actual possession with his mother. He claimed the land and tried to make sale of it. He was in possession-when the suit was commenced, and is defending under his title obtained through the will of his father. It is not a contest with creditors, but between himself and the sheriff’s vendee. The plaintiff has by means of a judicial sale the title of Daniel V. Drake, and as Rachel Drake is not entitled to the possession, the verdict of the jury should be for the plaintiff for the premises in dispute.” The verdict was for the plaintiff.</p> <p>The proceeds of the sheriff’s sale were brought into court and an auditor, September 21st 1868, reported</p> <p>‘‘To Nancy_ElizaJDrake| daughters and legatees r - — - - To Sarah Ellen Drake To Mary Ann Drake J Ephraim Drake, deceased 0f f $300 01 < 300 ( 300</p> <p>the remainder to other judgments.</p> <p>The report was confirmed by the Court of Common Pleas, and from the decree of confirmation Daniel Y. Drake appealed. The errors assigned were confirming the report of the auditor and the charge of the court.</p>

<p>1. A joint and several bond of indemnity for selling under an execution was given to a sheriff, it was not executed by the principal. A recovery could be had against one of a number of sureties who signed the bond.</p> <p>2. When the defendant signed, the names of all the co-obligors mentioned in the bond were to it, the name of one of them having been put there without his authority. The others were liable notwithstanding.</p> <p>3. In such case there is no implied condition that all named as obligors should sign to make it binding on any.</p> <p>4. If either signer wished to protect himself he should deliver it as an escrow.</p> <p>5. The acceptance of the bond by the obligee did not imply an affirmance to either obligor that it had been executed by the others.</p>

<p>March 20th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.</p> <p>Appeal from the decree of the Orphans’ Court of Lehigh county: No. 417, to January Term 1871.</p> <p>This case originated in the distribution of the estate of Catharine Lerch, deceased, who died June 7th 1870.</p> <p>On the 17th of August 1861, William Person, the husband of her daughter Mary, was indebted to the decedent $219.57, for principal and interest of a note which was then barred by the Statute of Limitations. At the same date, Peter Mack, the husband of her daughter Catharine, was indebted to the decedent $221.91 on two notes in like condition. About the same day, at the suggestion of one of her sons, for the purpose of equalizing these two sons-in-law with her seven other children, she cancelled the indebtedness of Mack and Person, and executed to each of the other seven a note under seal for $206.90 with interest, containing this clause: “ This note or the amount thereof, principal and interest, is not due or payable until after my death.” The notes were given to Peter Lerch, one of the sons, who shortly after-wards delivered them to the respective payees.</p> <p>Before the auditor appointed to distribute the estate, there was testimony for the purpose of showing incapacity, undue influence, &c. The auditor, however, found entire capacity, and that the instruments were executed without any unfair means.</p> <p>He reported the facts as above stated, and allowed to each of the seven children the principal and interest of the notes, $2194.22 in all; and distributed the remainder, $1218.45, amongst all the children.</p> <p>The Orphans’ Court, after exceptions by Mack and Person to the auditor’s report, confirmed it. They appealed to the Supreme Court and assigned the confirmation for error.</p>

<p>March 20th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.</p> <p>Error to the Court of Common Pleas of Lehigh county: No. 179, to July Term 1870.</p> <p>Charles W. Rauch, on the 5th of June 1868, brought an action of assumpsit against Henry Miller and William Scholl, and declared in the common counts. The pleas were non assumpsit and set-off.</p> <p>The plaintiff owned building-stone quarries, and entered into a contract with John Biglin to furnish stone for the erection of a bridge; the price the plaintiff received for the stone from Biglin was $2.15 per yard. He contracted with the defendants to quarry and deliver the stone from his quarries. He had paid the defendants considerable sums of money from time to time during the progress of the work. He alleged that he had overpaid them, and this suit was brought to recover the overpayment.</p> <p>The plaintiff testified that he was to pay the defendants $1.75 per yard. He examined a number of witnesses in support of his case. Miller, one of the defendants, testified that Rauch offered them $1.75 per yard; that they refused to do the work for less than $2; that Rauch told them to go on and he would make it all right; he also testified that they quarried and d&livered coping stone at a higher rate. f</p> <p>The defendants proposed to ask one of their witnesses: “ What was the value of stone in the ground in this quarry in 1866 ?” The question was objected to by the plaintiff, admitted by the court, and a bill of exceptions sealed.</p> <p>The defendants gave much evidence to sustain their case.</p> <p>The jury found for the defendants $376.91. The plaintiff took out a writ of error, and assigned the admission of the offer objected to for error.</p>

<p>March 21st 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.</p> <p>Error to the Court of Common Pleas of Pike county, No. 283, to January Term 1871.</p> <p>' This was an action of trespass, brought before a justice of the peace by Frederick Wehinger against John Milligan; there was a judgment in favor of the plaintiff, from which the defendant appealed to the Court of Common Pleas.</p> <p>On the trial, December 22d 1870, before Dreher, P. J., the plaintiff testified that he and the defendant owned adjoining lands :— “I proposed to build a fence; defendant did not want to build and was not going to turn any cattle in, nor I, and we agreed not to put up any division fence; I put no cattle on mine.” He then testified that the defendant’s colts got on to his corn and oats and did him injury, to the value of $60. The defendant gave evidence in answer to the plaintiff’s case.</p> <p>The court charged: * * * “ That if adjoining owners agree to occupy and use their respective lands without a division fence, they are each bound so to occupy and use their respective properties that the one shall not injure the crops of the other. If you believe there was such an arrangement between these parties, then we charge you- that the plaintiff may recover in this suit whatever damage he may have suffered in his crops by the trespasses of defendant’s colts, and this would be the case if nothing was said about the defendant’s not turning his colts out, if the parties agreed to each occupy and use his own land without a division fence.”</p> <p>The verdict was for the plaintiff for $40.</p> <p>The defendant took out a writ of error and assigned the charge for error.</p>

<p>1. F. agreed to lend §4000 to S. at 12 per cent, interest, S. paying $240 in advance. S. delivered to F. a note signed by himself and others as his sureties. Afterwards F., discovering that nothing appeared in the note about interest, told S., who directed F. to insert that it was with interest. F. did so in S.'s presence. This avoided the note as to the sureties.</p> <p>2. F. sued for the note, principal and interest. Held, that the refusal to allow him at the trial to strike out the addition as to interest was proper.</p> <p>3. One who makes a voluntary and unauthorized alteration in an instrument and insists upon it by going to trial on it, has no locuspeenitentice, by which on his failure to establish his right to recover, he can undo the wrong.</p> <p>4. Neffu. Horner, 13 P. F. Smith 327, approved; Kountz v. Kennedy, Id. 187, decided doubtingly, distinguished.</p>

<p>1. When one puts his name on the back of negotiable paper before the payee has endorsed, he means to pledge his responsibility for its payment.</p> <p>2. Such endorser, in absence of a different contract, assumes the position of a second endorser, and to make him liable to any holder the implied condition that the payee shall endorse before him must be complied with to give him recourse against the payee.</p> <p>3. A memorandum in writing signed by the second endorser is admissible to show that the agreement on which the endorsement was made, was a guaranty that the note should be paid to the payee, and not that the payee should stand between the endorser and ultimate liability.</p> <p>4. The contents of a letter mailed by a party cannot be given in evidence without notice to produce the letter.</p> <p>5. A case was heard before arbitrators. On the trial in court after the death of the defendant, the plaintiff was an incompetent witness.</p>

March 30th 1871. Before Thompson, 0. J., Read and Sharswood, JJ. Williams, J., at Nisi Prius. Error to the Court of Common Pleas of GUnton county: Of January Term 1871. This was an action of ejectment by Griffin Rote against Lewis Richards: the writ issued April 18th 1870.

<p>1. A commissioner appointed by Act of Assembly to receive subscriptions for stock, is an agent appointed by law with a special power of attorney. All who deal with him must look to his source of authority.</p> <p>2. When a subscription to stock is on its face unconditional, a condition at the time of subscription, not the subscription, is void.</p> <p>3. After organization the company may stipulate with subscribers to pay in any way mutually agreed on.</p> <p>4. Corporations are bound only by the acts and contracts of their officers duly authorized, within the scope of their authority.</p> <p>5. McConahy v. Turnpike Co., 1 Penna. R. 426, overruled.</p>

<p>1. Each county under the tax laws assesses and taxes all the lands found within its own boundaries.</p> <p>2. It is the duty of an assessor finding land lying partly in his own county and partly in another to ascertain its character whether seated or unseated.</p> <p>3. A tract lay in Centre county; by division of the county, part was thrown into Clearfield and was there sold as unseated for taxes. That taxes for the whole tract had been assessed and paid in Centre county, did not relieve the part in Clearfield from sale.</p> <p>4. Ellis v. Hall, 7 Harris 292, distinguished.</p>

<p>1. “Whereas I have purchased from Richards 100 acres which was intended for my sister Elizabeth, therefore I do acknowledge the receipt of $100 from my father to be paid to Richards on account of said land.” This created no trust for Elizabeth.</p> <p>2. Neither the intention of the brother when he bought the land, nor the receipt of money from his father for the purchase, raised a trust.</p> <p>3. The brother made a declaration of trust that his father had given him $300 to lay out in land from Richards for the use of Elizabeth, and promised in it to convey 50 acres, describing them, for her separate use; there was proof that he did not claim any of the land till after his father’s death, with other evidence to show a trust in the whole. It was competent for the brother to rebut the presumption of a trust in the whole by his own testimony that the receipt was a mistake in stating that all the land was for his sister, and by other testimony of an understanding in the family that hut 50 acres was to he in trust.</p> <p>4. The land was purchased at $6 per aere, the presumption was that the trust was for so much as the money, $300, advanced by the father would pay for, and the burthen was on the sister to prove that it was more thau 50 acres.</p> <p>5. The character and extent of the trust was to be ascertained by the jury, not only from the writings but from all the evidence written and parol.</p>

<p>March 28th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.</p> <p>Error to the Court of Common Pleas of Warren county: Of January Term 1871.</p> <p>E. H. Berry brought an action of assumpsit against The Pennsylvania Railroad Company (which is lessee of the Philadelphia and Erie Railroad), for the loss of household goods stolen from a car in which they had been placed for transportation from the town of Warren to Tidioute.</p> <p>The writ was issued November 20th 1868, and the case was tried, September 13th 1870, before Johnson, P. J.</p> <p>The goods lost, with their value, as testified to by plaintiff’s wit-</p> <p>nesses, were as follows: — ■</p> <p>Cask of China ..... $125.00</p> <p>.Box of Books and Pictures . . . 100.00</p> <p>Table, $5; 5 Cane Chairs, $1.50 each . 12.50</p> <p>3 Hair Cloth Chairs, $6 each . . . 18.00</p> <p>1 Green reps. Greenland serges . . 10.00</p> <p>3 Kitchen Chairs, $1 each ... 3.00</p> <p>The goods had to be transported on the Philadelphia and Erie Railroad to Irvineton, thence on Oil Creek and Allegheny Valley Railroad to Tidioute.</p> <p>The plaintiff testified that on April 1st 1868, he made a contract with Gemmil, the agent of the defendants, to transport his goods to Tidioute without change of cars, and selected a car of proper gauge to go on the other road; the goods to be charged more on that account. On the 3d of April the car was at Irvine-ton ; on the 4th, Saturday noon, it was at Tidioute; he paid charges there, but could not unload that day; the clerk and plaintiff looked into the ear, all was dry and right. On Monday he again deferred unloading. On Tuesday he unloaded, and worked till night without taking out all the goods; locked the car and left. On Wednesday he missed the articles mentioned in the list: on that morning nothing appeared to be disturbed. On Saturday he saw the box of books, dining-table and box of bedding in the car, but did not see the cask of china. He gave other evidence of the loading of the goods and their value. Gemmil, the agent of defendants, testified that the plaintiff wanted a car to go through and not require the goods to be transferred; witness got him one loaded. On cross-examination he said he gave a receipt to Waid, whom the plaintiff had employed to haul the goods to the car, and took a release from Waid. The defendants had business arrangements with the other company, to run to and over their road, and collect track freights; the arrangement was, if there was one car only used, the freighter was to pay car service; the plaintiff wanted a car that would save the transfer of the goods. Witness made no arrangement that the defendants should carry the goods to Tidioute.</p> <p>The defendants gave in evidence Waid’s release to defendants for a “lot of H. H. goods from Warren station to Irvineton, consigned to E. H. Berry, Tidioute,” and to all other companies over whose line the goods should pass, from damage from leakage, decay, chafing, breakage, damage by fire or from any other cause not the result of the collision of trains or of the cars being thrown off the track. This contract to be executed by shippers of light furniture, household or miscellaneous goods.</p> <p>The manifest was dated April 3d 1868, viz.:</p> <p>“ Merchandise forwarded from Warren to Irvineton“ Marks; Tidioute, Pa.” — “Consignee; E. H. Berry” — “Description; lot of H. H. goods (released)” — “Amount of freight $7” — Expenses $1” — “ To be collected $8.”</p> <p>The manifest went with the goods and car.</p> <p>The receipt stated that “as/part of the consideration of the contract,” the defendant should not be responsible (amongst other things), for theft nor in any event for more than $50; when goods are intrusted to any other company, that company shall be regarded exclusively as the agent of the owner and alone liable. The responsibility of the company to commence with the shipment and terminate with unloading the car. The receipt attached was as follows:—</p> <p>“ Received of E. H. Berry the following, contents and conditions unknown, to be carried and delivered upon the terms, and according to the agreement above specified, at the Irvineton station of the above railroad.</p> <p>Marks. No. and Alleged Contents.</p> <p>E. H. Berry, Lot H. H. Goods.</p> <p>Tidioute. Released.”</p> <p>The defendant further- gave evidence that the car and goods arrived at Irvineton between 10 and 11 o’clock A. M., of April 3d, and the car was transferred to the other road about 2 p. m. of the same day. Also, that when the plaintiff came to see about the goods he was told they would have to be rehandled and transferred unless he was willing to pay car service, and to that he agreed; the car was loaded nearly full between the doors, the chairs being on top. Plaintiff looked at the car at Tidioute on Monday, there was no reason why he might not have taken them that day.</p> <p>The plaintiffs points were:—</p> <p>1. Whether the defendant did or did not contract to deliver the goods in suit at Tidioute, they are responsible for any loss occurring while the goods were in their custody, and the goods having been received by defendants and lost, they can only exempt themselves from liability by showing to the satisfaction of the jury that the loss occurred after their custody had ceased.</p> <p>2. The defendants having received the plaintiff’s goods and the same being lost, the presumption of law, in the absence of proof to the contrary, is that they were lost through the default of the defendants.</p> <p>The court after referring to the facts said: * * *</p> <p>“ Now, from this state of facts, the plaintiff asks you to say that the defendant entered into a special contract with him to transport these goods to Tidioute and is therefore liable to him for the larceny committed upon them during their transit.</p> <p>“ In addition to the evidence mentioned, it was also shown and not denied that these two roads were connecting roads and had business arrangements by which freight was received at any point on the one to be transported to any point on the other, with and without change of cars, and that in such cases, as in this one, the charges are not to be paid to the several roads over which the goods pass in their transit, but paid in gross at either end of the route to either, each road charging the other for the amounts so received.</p> <p>“ Inasmuch as this transaction was not put in writing, it is for you to say whether the Pennsylvania Railroad Company did undertake by contract, express or implied, to transport the plaintiff’s goods to Tidioute or only to Irvineton. The agent here distinctly disavows the intention of making any contract that would bind his principal, the defendant, further than Irvineton for the safety of the goods.</p> <p>“If the transaction was such as to create an obligation on the defendant to carry the goods to their destination, either by its own motive power or that of another, then it would be liable for losses occurring as this one did.</p> <p>“ It is not questioned but that the agent here had power so to contract and bind the company, and we say he had the power.</p> <p>“ Did he, by contract express or implied in the peculiar character of this transaction, so engage ? It was out of the usual course of business. The usual bill of lading itemizing the goods received, specifying Irvineton as the end of their liability therefor and the usual precautionary conditions and exemptions from liability, was omitted in this instance, and it was agreed for a consideration, that the defendants’ car should carry the goods to their destination without transhipment.</p> <p>“ Does all this contain an express contract, or the legal implication of one, that the defendant would transport the goods to Tidioute and deliver them safely to the consignee, who was the plaintiff himself? If so, of course it would be bound to do so, or be liable for not doing so, unless excused by some sufficient reason.</p> <p>“Just here come in the points to which the plaintiff’s counsel has invited our attention: * * *</p> <p>“ I think the doctrine presented in these points is essentially correct. The plaintiff put the goods into the custody of the defendant — an admitted common carrier — and fails to receive them again. Pie.has no knowledge or means of acquiring knowledge of how they were lost.</p> <p>[“' I think the burden of proof is on the defendant to show by what means they were lost, or at least to show affirmatively that it was not through any default or negligence of its agents, or while the goods were in its possession or custody.]</p> <p>“This is independently of the fact whether the defendant was bound by contract to carry them itself to Tidioute or see that it was done. If this be correct, then it becomes your duty, in case you are not satisfied there was a contract, to inquire, whether the defendant has shown satisfactorily that the larceny of the goods was not committed until after they passed out of its possession and control, that is, not until after they were received and taken into custody by the O. C. & A. R. R. Oo. If not, then the defendant would be responsible for the deficiency. Having charged and collected pay for the faithful and full performance of duty at the end of the route, no less should be required of it than to show affirmatively where and how the loss did occur, to exempt itself from the legal presumption of negligence, and afford the plaintiff the means of redress.</p> <p>[“ A formal receipt of another party, taken in the usual course of business, upon the transfer of goods, is not sufficient, especially when the evidence does show affirmatively that no itemized bill of lading accompanied them and no examination of them was made to discover the fact of loss. The receipt of the receiving company, given under such circumstances, would not be conclusive.]</p> <p>“ The question of the liability of a railroad company for goods billed and shipped to a point beyond the terminus of its line of road, is not fairly raised in this case, because there was no bill of lading or receipt given. Where there is a business connection between the different companies throughout the route and the consignor has reason to believe that the company to whom he delivered the goods held themselves out as responsible for the entire route, he will be entitled so to hold them. The rule is well settled in the English courts that where a railroad company receipts property destined and directed to a point beyond the termination of their own road, they are bound to deliver it at the place of destination, without a stipulation to that effect. * * * [Such a rule is the only one consistent with the safety of the citizen and consignor, with common honesty and fair dealing, and the demands of this progressive age.]</p> <p>“ In this case, if you believe these goods were shipped under a special contract to be transported to Tidioute, [or with the reasonable and fair understanding by plaintiff that the-Penna. R. R. Co. was to be responsible for their delivery there, then the defendant would be and is responsible for their non-delivery, unless they have shown affirmatively and clearly how the goods were lost, and that it was without any fault or negligence on their part.”]</p> <p>The verdict was for the plaintiff for $309.15. The defendants took a writ of error and assigned for error, the parts of the charge in brackets, and the affirmance of the plaintiff’s first point.</p>

<p>1. An entry upon an unseated tract, whether by an intruder or under the owner for residence or cultivation, makes the tract seated and prevents a sale for taxes.</p> <p>2. The cultivation of several acres fixes the denomination of the whole, and charges the person of the cultivator so as to render a sale for taxes illegal.</p> <p>8. M. made an improvement on the Allegheny on a warrant of 1100 acres, on which there were other settlers adjoining the improvement. The owner, by articles reciting that M. owned an improvement on which he now resides on the east side of the river, agreed to sell him 200 acres so as not to interfere with claim of any other settler. This did not so define the land as to sever it from the remainder of the tract.</p> <p>4. M. could not elect to run his lines where he chose .so .as to make the 200 acres, without notice to his vendor owning the remainder.</p> <p>5. M. might lay off his. 200 acres on notice to the owner, but must do it in a reasonable manner.</p> <p>6. The consentable lines between* the settlers would not help to designate the tract as they were not recognised by the owner.</p> <p>7. In the absence of a line on the ground, the settlers could not assume where it would be so as to work a severance.</p> <p>8. Beagle v. Wentz, 5 P. B. Smith, approved.</p>

<p>March 30eh 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prins.</p> <p>Error to the Court of Common Pleas of Warren county: Of January Term 1871, No. 313.</p> <p>This was an action of ejectment brought, June 11th 1869, by H. W. Winch against J. Y. James, Gholson C. James and J. Dennis James for inlots No. 429, 430, and west half of No. 428.</p> <p>The case was tried, June 7th 1870, before Vincent, J.</p> <p>The plaintiff gave in evidence a judgment in his favor against the defendants, June 25th 1864, for $10,005.58, fi. fa. and levy on land in dispute, sale under venditioni and deed to plaintiff; also writ in the ejectment served on the defendants.</p> <p>The defendants gave in evidence judgment, April 11th 1859, C. B. Curtis to the use of Lewis Arnett against same defendants for $6279, fi. fa. and levy, May 26th 1860, on land in dispute, and land sold under venditioni, September l'lth 1863, to Arnett for $2325. Deed Arnett to Polly S. James, March 9th 1864, consideration $2000 for inlot 429, half of 428 and part of 431, except so much as is conveyed to Mary H. James. Deed of same date, Arnett to Mary H. James for the part of inlot 430, not conveyed to Polly S. James. Will of Polly S. James, proved' April 17th 1869, devising her part of the property in dispute to the children of Gholson C. James, “born or to be born.”</p> <p>Polly S. James was the wife of J. Y. James, and Mary H. James the wife of J. D. James. Polly when she died was in possession of the premises conveyed to her. Harriet James, wife of Gholson C. James, and mother of the devisees of Polly, has been in possession since. J. D. James and his family occupied the part conveyed to Mary H. James.</p> <p>Defendants offered in evidence the deposition of Lewis Arnett, taken by defendants in a suit in Warren county Common Pleas, in equity — J. Y. James and Polly S. James, for the use of Polly S. James, v. H. W. Winch and Robert Allen — it being a contest between same parties relating to same property and involving the same question of title. (See Winch’s Appeal, 11 P. F. Smith 424.)</p> <p>After objection, tbe court admitted tbe deposition, so far as it related to the part claimed by Polly S. James, and sealed a bill of exceptions. .</p> <p>Arnett in his deposition said that he paid the full amount of the purchase-money to the sheriff, and proceeded: “ I have been repaid the amount of my bid on said lots in this way: I after-wards bought on judgments against the Jameses, the factory property, for about $1200, and afterwards sold the same for about $4200 or $4800, which last sale paid up all the judgments, including those upon which my purchase of the house and lots were applied, less $786.75, as of the 24th day of January 1865. This balance, $786.75, was paid me by check of R. Brown for J. Dennis James, at which time I executed to Polly S. James a deed for the house and lots before mentioned, and delivered the same to J. Dennis James. This deed did not include all the property purchased by me at sheriff’s sale. I at the same time made a deed to Mary H. James for a part of one of the said lots. The balance, $786.75, was paid, and the deed of Polly S. James executed on the 24th day of January 1865.”</p> <p>On cross-examination he said:—</p> <p>“ At the time I purchased the house and lots for $2325, I considered that their full value. There was no arrangement between me and any of the Jameses, at the time of the sheriff’s sale, in regard to a reconveyance to them. There was no arrangement to’ reconvey the factory property.</p> <p>“ [After my purchase of both properties I stated to different parties all I wanted was my pay, and after that if there was anything left I was going to give it to Polly S. James. Before I made the deed to Mrs. James I told J. Dennis James that if he raised the balance of $786.75 I would make Mrs. James a deed of the property. This proposition to make the deed to Mrs. James came from me. I never would have conveyed to any of the male portion of the James family. It was intended entirely as a gift to Mrs. James, and a provision for her alone. I knew at this time that Joseph Y. James, J. Dennis James and Gholson C. James were heavily in debt. The deed I made to Mrs. James, on the 24th day of January, was intended to carry into effect the gift I had in view.”]</p> <p>The plaintiff, in rebuttal, gave evidence showing that the defendants were all deeply in debt at the time of these transactions.</p> <p>The plaintiff’s points were:—</p> <p>1. As the consideration of the conveyance from Arnett to Polly S. James was money paid by J. D. James, when he and J. Y. James, the husband of Polly, were heavily in debt to the plaintiff and others, she holds the title in trust for said J. D. James, so far as his other existing creditors are concerned, and a levy and sale of his interest therein extinguished her title and vested it in the purchaser.</p> <p>2. Although a debtor has a right to prefer his creditors in the disposition of his property, in the payment of his debts, he must do it honestly, and not with the intent to hinder, delay or defraud other creditors, and the payment by J. D. James to Arnett of the amount of his claim, under the arrangement that he would convey to Polly S. James and Mary H. James, the mother and the wife of J. D. James, the property in controversy, is a fraud on the plaintiff in this case, and operates as a hindrance and delay to him in the collection of his judgment.</p> <p>3. When an insolvent debtor makes a preference among his creditors, in the payment of one to the exclusion of the rest, those creditors must stand upon an equal footing in respect to securities or means in their hands out of which they can make the amount of their claims, and if a debtor pays one creditor who has the means of satisfaction in his hands, and as a consideration of that payment those means are transferred to the mother and wife of the debtor, they are trustees for his creditors, and hold the said means and securities subject to seizure and sale by them.</p> <p>4. The payment by J. D. James to Arnett of the amount of his claim against the Jameses, in consideration of the conveyance by Arnett of the property in controversy to Polly S. James and Mary H. James, the mother and the wife of J. D. James, is a fraud upon Winch, a creditor at that time of said J. D. James, to the extent of the payment made by said James, and the transaction operates as a purchase by said James, so far as the plaintiff is concerned, and the property so purchased is liable to be seized and sold on his judgment.</p> <p>5. If Arnett agreed to convey the property to Mrs. James in case her son J. D. James would raise the sum of $786.75 and pay him, the same being the balance of the claim against the Jameses, there was a sufficient consideration to render the contract operative and binding upon Arnett to convey when he raised the money.</p> <p>6. Arnett having executed the contract he made with J. D. James, by a conveyance of the property to his mother and his wife, no questions can now be raised by the defendants in this case as to whether that contract was nudum pactum or whether Arnett could be compelled specifically to perform that agreement.</p> <p>8. The payment by J. D. James to Arnett of the balance due to Arnett, under the agreement that Arnett should convey to Mrs. James, Is a voluntary payment on the part of said James and not compulsory, and the transaction is a purchase by said James from Arnett, when Arnett conveyed the property to Polly S. James and Mary H. James.</p> <p>Defendants’ point was:—</p> <p>There is nothing in the transaction by which Judge Arnett conveyed the land in dispute to Polly S. and Mary H. James in January 1865, which operated prejudicially on the right of the plaintiff, or gives him occasion to complain of the transaction, and plaintiff can recover no portion of the land.</p> <p>The court answered the plaintiff’s points as follows:—</p> <p>“1. We answer this point in the negative, so far as it relates to Polly S. James.</p> <p>“2. We answer the first part of this point in the affirmative, the conclusion in the negative.</p> <p>“ 3. This is correct as a general proposition, but Judge Arnett does not hold this property as security for payment of the debt due him from the Jameses; it was his absolute property, and we therefore think this point does not apply to the case.</p> <p>“ 4. We negative this point so far as relates to Polly S. James: with some doubts we affirm it so far as relates to Mary H. James.</p> <p>“5. We answer this in the negative. The payment of the money by J. D. James was not a new consideration to Arnett, and his promise to convey could not have been enforced against him.</p> <p>“6. We answer this in the negative, referring to what we have before said as to the extent of Arnett’s obligations to the Jameses.</p> <p>“ 8. We answer this in the negative, so far as the rights of Polly S. James are concerned, and in the affirmative as to Mary H. James.”</p> <p>The defendant’s point was answered in the affirmative as to Polly S. James, and in the negative as to Mary H. James.</p> <p>The verdict was for the plaintiff for that part of land conveyed to Mary H. James, and for the defendant for the remainder.</p> <p>The plaintiff took a writ of error, and assigned for error the admission of the deposition in evidence and the answers to the points.</p>

<p>1. In the absence of special contract, the obligation of a carrier of goods is to transport them by the usual route proposed by him to the public, and to deliver them within a reasonable time.</p> <p>2. This, whether by the route of his own carriage or extended to points beyond.</p> <p>3. He must use reasonable expedition, but is not bound to use extraordinary exertions or extra expense to surmount obstacles not caused by his own default, but by the weather, or other act of Providence.</p> <p>4. The established route of a carrier was by rail to Philadelphia, and by water to Boston. lie was not bound to send goods by rail from Philadelphia when there was an obstruction in the water communication.</p>

<p>1. The question in the ease was whether a sale of personal property was fraudulent. The court said to the jury: “Believing that fraud in fact and fraud in law are both palpably manifest in the whole transaotion, we direct a. verdict for the plaintiff.” Meld to be error, fraud in fact is for the jury, however plain a case it may be.</p> <p>2. All the goods levied on under an execution were appraised at less than $300, and retained by the defendant under the exemption laws; they were exclusively the property of the defendant, who could sell or retain them as he pleased.</p> <p>3. The goods were not in any manner subject to seizure as the goods of the defendant or of the purchasers from him.</p>

March 30th 1871. Before Thompson, C. J., Read, Agnew and Si-iarswood, JJ. Williams, J., at Nisi Prius. Appeal from the decree of the Court of Quarter Sessions of Lycoming county: No. 361, to January Term 1871. Andrew Gower was bound over to the Court of Quarter Sessions for surety of the peace.

March 30th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius. Error to the Court of Common Pleas of Lycoming county: Of January Term 1871, No. 311.

<p>March 30th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.</p> <p>Error to the Court of Common Pleas of Clinton county: No. 333, of January Term 1871.</p> <p>This was an action of assumpsit, on a promissory note, brought February 9th 1870, by A. A. Stewart against E. W. Bigoney.</p> <p>The single question raised by the assignments of error was the admission of the deposition of J. B. Williams, taken on the part of the plaintiff.</p> <p>On the 13th of July 1870, the plaintiff entered an ex parte rule to take depositions on ten days’ notice. He afterwards gave the following notice:—</p> <p>“To Jesse Merrill, Esq., attorney for defendant.</p> <p>“ Take notice, that in pursuance of a rule of court, of which the above is a copy, the deposition of A. A. Stewart et al., witnesses, to be read in evidence on the trial of said cause, will be taken between the hours of 8 o’clock A. M. and 11 o’clock P. M., on Wednésday, the 3d day of August, a. d. 187 0, at the office of Theo. S. Wilson, in the borough of Clarion, Clarion county, in the state of Pennsylvania, before the said Theo. S. Wilson, Esq., or some other person competent to take the same at the said time and place.”</p> <p>On the trial, before Mayer, P. J., the plaintiff offered in evidence the following, viz.:—</p> <p>“Depositions of witnesses produced, sworn, or affirmed and examined by me, the 3d day of August, A. D. 1870, at the office of Theo. S. Wilson, at Clarion, between the hours of 8 o’clock A. M. and 11 P. M., by virtue of the annexed rule,” &c. * * *</p> <p>“A. A. Stewart sworn, deposeth and saith,” &c. * * *</p> <p>“ J. B. Williams sworn, deposeth and saith,” &e. * * *</p> <p>“ I hereby certify that the above witnesses were duly qualified and examined at the time and place stated in the above caption, and subscribed their depositions in my presence, and that the ex-animation of said witnesses was closed by me at 8J o’clock P. m. of said day, and up to that time there was no one appeared as attorney for defendant to cross-examine the witnesses, at which time the witnesses and myself retired from the place of examination, and I did not go back that night.</p> <p>“In testimony, &c. “Prank M. Arnold, J. P.”</p> <p>The defendant presented the following affidavit:—</p> <p>“Personally appeared before me, James B. Knox, who, being first duly sworn according to law, deposeth and saith, that on the third day of August, A. D. 1870, at 9 o’clock p. M., he received a letter from Jesse Merrill, Esq., attorney at law, Lock Haven, Pa., enclosing a copy of a rule to take depositions on the part of the plaintiff, in the borough of Clarion, on the third day of August, a. d. 1870, between the hours of 8 o’clock A. m. and 11 o’clock p. M., with directions to appear and cross-examine for the defendant, immediately on the receipt of the letter and notice by mail. That he went to the office of Theo. S. Wilson, Esq., the place designated in the rule for taking the depositions, who stated to the deponent that he was attorney for the plaintiff in the above-stated case, and that depositions had been taken in the case, on a rule, that evening. Your deponent then notified him that he .appeared for the defendant, and- demanded the privilege of a cross-examination. Mr. Wilson replied that the witnesses had returned to their homes, and it would be impossible for him to produce them for cross-examination at that late hour of the day. The deponent further states that the witnesses were not produced, and therefore no cross-examination was had. ”</p> <p>The deposition of J. B. Williams was objected to, because the certificate of the justice before whom testimony was taken, as well as the deposition of Knox, shows that the justice and witnesses closed the examination and left the office two hours and a half before the expiration of rule and notice, during which time defendant’s counsel appeared to cross-examine.</p> <p>The objection was overruled, and a bill of exceptions sealed.</p> <p>The verdict was for the plaintiff. The defendant took out this writ of error, and assigned for error the admission of the deposition.</p>

<p>1. An assignment of a mortgage-debt carries the mortgage with it.</p> <p>2. Whatever will give the money secured by a mortgage will carry the mortgaged premises.</p> <p>3. The great object of the Act of 1848 was to secure a married woman’s > property from her husband and his creditors.</p> <p>4. The Act of 1848 did not confer upon a married woman any power or capacity which she did not possess before, except to make a will, bind her estate for necessaries and perhaps its repair or improvement.</p> <p>5. The assignment of her mortgage without her husband joining, is void.</p> <p>6. The assignment of a wife’s mortgage by husband and wife without the acknowledgment required by the Act of 1848, is invalid.</p> <p>7. Haines v. Ellis, 12 Harris 253, distinguished.</p>

<p>March 31st 1871. Before Thompson, C. J., Read and Sharswood, JJ. Agnew, J., absent. Williams, J., at Nisi Prius.</p> <p>Error to the Court of Common Pleas of Lycoming county: No. 352, to January Term 1871.</p> <p>This was an action on the case brought, May 9fch 1867, by Adam Hinkleman against William R. Hays, to recover damages for injury to real estate occasioned by the construction of a drain.</p> <p>The plaintiff was the owner of a tract of 7 acres of land on which were a house and stable; the land was situated on the declivity of a hill, below and adjoining the land of the defendant. The water which collected upon the land of the defendant passed down on to the land of the plaintiff, tearing a large gully in his field, destroying a valuable spring of water, injuring the foundations of his house, uprooting fruit-trees and damaging hay in his stable. The plaintiff alleged that the water was diverted from its natural course and conducted upon his land by means of a ditch dug by the defendant above on his own land.</p> <p>The defendant answered that his land lay so as to discharge its waters in part toward the plaintiff’s land; that whilst he was farming in the usual way, a heavy rain-storm fell washing his field in ditches, one of which taking the course of a furrow leading toward the plaintiff’s land, caused what was alleged to be an artificial ditch, and directed the flood complained of upon the land of the plaintiff across a road whose gutters were insufficient.</p> <p>The facts sufficiently appear in the opinion of Judge Read.</p> <p>The defendant submitted the following points:—</p> <p>1. The defendant’s land being the superior heritage, or located above the plaintiff’s, there was an easement or right on the inferior or lower lands for the discharge of all waters which by nature vise in, flow or fall upon his said land, and the lower must necessarily be subject to all the natural flow of water from the upper one, the inconvenience' arises from its position, and is usually more than compensated by other circumstances.</p> <p>2. The owner of the upper or superior heritage has a right to improve and use his lands for agricultural or mineral purposes in the ordinary manner, although the volume of water on the lower is thereby increased.</p> <p>3. Unless the jury believe, from the whole evidence in the cause, that the defendant made a tortious or wrongful use of his premises, to the injury of the plaintiff, their verdict must be for the defendant.</p> <p>4. If the jury believe that the alleged damage was occasioned, in whole or in part, from waters collected by the ditch at the road from other lands than those of the defendant, their verdict should be for the defendant.</p> <p>5. If the jury believe that the damage to the plaintiff, if any, was occasioned by flood, storm or other natural cause (the defendant cultivating his premises in the ordinary manner), no tort can be imputed to him, and the plaintiff cannot recover.</p> <p>6. The plaintiff, not having, by law or length of time, obtained a prescriptive right to have the defendant use his natural drainage in any particular manner, the defendant has a right to use the advantages of his position without committing tortious acts to the immediate injury of the plaintiff, and the verdict of the jury should be for the defendant.</p> <p>7. If the jury believe the evidence on the part of the defendant, the plaintiff has no cause of action.</p> <p>The court answered the 1st, 2d, 3d and 5th points affirmatively, adding as to the 1st, “ so long as the natural flow of the water or drainage is not divertedas to the 2d, “ the improvement or use of his lands in the ordinary manner must be understood to mean a legal manner, consistent with all the natural rights appertaining to his neighbor’s lands;” and as to the 5th, “if the jury believe that the defendant did not contribute to the damage by a diversion of the natural flow of the drainage from the defendant’s field;” and denied the 4th, 6th and 7th points.</p> <p>The verdict was for the plaintiff for $180.</p> <p>The defendant took a writ of error, and assigned for error.the answers to the points.</p>

March 31st 1871. Before Thompson, O. J., Read and Sharswood, JJ. Williams, J., at Nisi Prius. Appeals from the decree of the Orphans’ Court of Lycoming county: Of January Term 1871, No. 365, 372. In the estate of W. W. Willard, deceased.

March 31st 1871. Before Thompson, C. J., Read and Sharswood, JJ. Williams, J.,' at Nisi Prius. Certiorari to the Court of Quarter Sessions of McKean county: No. 419, of January Term 1871. In the matter of the contested election of Charles C. Melvin as treasurer of the county of McKean.

<p>March 31st 1871. Before Thompson, C. J., Read and Sharswood, JJ. Williams, J., at Nisi Prius.</p> <p>Certiorari to the Court of Quarter Sessions of McKean county: No. 377, to January Term 1871.</p> <p>On the 30th of December 1868 a number of residents of Sergeant and Wetmore townships, in McKean county, petitioned the Court of Quarter Sessions for the annexation of parts of Sergeant and Hamlin townships to the township of Wetmore, and in their petition they set out the lines by which they desired the annexation made. Commissioners were appointed, who reported that they had “ made a plot or draft of the township of Wetmore as at present laid, and of the line of said township as proposed to be altered by the annexation of portions of Sergeant and Hamlin to the same, the line of which said Wetmore township to be as follows, viz.: beginning, &c. (describing the line by numbered warrants); and stated that in their opinion the lines of the three townships should be so altered. On the 23d of December 1869 the court confirmed the report of the commissioners, adopting the line established by them through Sergeant township, but changing the line so as to take in five warrants and five parts of warrants in Hamlin township, whereas the commissioners in their report had included fifteen warrants and the five parts of warrants.</p> <p>The citizens opposed to the decree of the court took out a certiorari from the Supreme Court, and assigned the decree thus changing the report of the commissioners for error.</p>

<p>1. Partial unsoundness, not affecting the general faculties and not operating on the .mind of the testator in regard to testamentary disposition, is not sufficient to make a person incapable of making a will.</p> <p>2. If unsoundness of mind is proved to exist on the day the will is made or the instructions given, it is proper to trace the unsoundness up to the moment of the death of the alleged testator.</p> <p>3. Medical men, as experts, give their opinion upon hypothetical cases or upon facts proved.</p> <p>4. The subscribing witnesses may testify as to the state of the decedent’s mind, and in addition to facts may give their opinion.</p> <p>5. _ After a non-professional witness has stated the facts on which his opinion is founded, he may state his opinion as to the sanity of the testator.</p> <p>6. General reputation as to a testator’s sanity is not evidence.</p>

<p>January 26th 1871. Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J., at Nisi Prius.'</p> <p>Error to the Court of Common Pleas of Snyder county: No. 136, to July Term 1870.</p> <p>On the 1st of November 1865, Daniel Mulliner brought an action on the case against The West Branch and Susquehanna Canal Company, and averred in his declaration that the defendants raised the water in their canal higher than it was when they became the owners of it, and that by reason thereof it was forced into the plaintiffs’ cellar, injuring it, the wall of his house, &c. The canal was built by the Commonwealth and sold by virtue of an Act of Assembly to the Sunbury qnd Erie Railroad Company. The defendants were incorporated April 21st 1858, and became the owners of the canal.</p> <p>The cause was tried December 15th 1869, before Woods, P. J.</p> <p>The plaintiff gave evidence that the canal had been raised every year, and that in 1865 especially, the water came into his house and did him much injury; that in 1865 there was a great freshet, the water then being higher than it had ever been before. There was much other evidence by the plaintiff as to the raising of the water and the injury to his property.</p> <p>The defendants gave evidence in answer to the plaintiffs’ ease.</p> <p>The defendants’ points and their answers were as follows:—</p> <p>1. Even if the water was raised in the canal, in 1865, the Commonwealth or its alienee had a perfect right to do so, especially if it was necessary to keep up the navigation so as to accommodate the boating business.</p> <p>Answer: “ This point we answer as requested.”</p> <p>2. This action of trespass upon the case cannot be maintained, and therefore plaintiff is not entitled to recover.</p> <p>Answer: “ This we refuse to answer as requested.”</p> <p>3. If the plaintiff purchased with a full knowledge that the water ran from the canal into his cellar, and other parts of his house, this action cannot he sustained.</p> <p>Answer: “ If the water had been at the same stage in 1865, as it was when Mr. Mulliner purchased, this would be so, and we would answer it as requested.”</p> <p>The court after referring to the character of the suit and the facts charged: * * * [“You will ascertain whether the defendants did raise the water any in the year 1865, and if so, what damages did the plaintiff sustain by reason thereof.”] The defendants deny that the water was raised as alleged and charged by the plaintiff, and contend that even if they did the plaintiff cannot recover in this action. That the plaintiff has mistaken his remedy. That an action at common law cannot be sustained in such a case as this against this corporation.” * * * “ This canal company is formed by virtue of the Act of April 21st 1858, above referred to. This act does not point out how any person is to proceed to ascertain any damage inflicted on him by this company. It does not say that any damage sustained by an individual shall be ascertained in the manner it was done when owned by the Commonwealth, nor does it point out any other remedy. By the 7th section it is provided that the company shall pay any damage sustained in relation to the location, construction, repair, management or use of any of the canals sold by that act, ‘ the amount to be ascertained and payment made as the legislature may direct.’ The legislature has not, that we know of, pointed out how these damages are to be ascertained, and until they do, the common-law remedy remains to those who are injured.</p> <p>[“ We therefore instruct you that this action can be sustained if the defendants raised the water in their canal higher than it had been before 1864 or 1865, and thereby injured the property of the plaintiff. If you shall so find, then the plaintiff would be entitled to recover whatever damages he may have sustained from the time of the purchase of this property by him up to the date of the commencement of this suit.] You cannot include any damage the property may have sustained before the plaintiff became the owner of it, or any that it may have sustained since this action was commenced.”</p> <p>The verdict was for the plaintiff for $300.</p> <p>The defendants sued out a writ of error and assigned, amongst others, the following errors:—</p> <p>3 and 4. The answers to the defendants 2d and 3d points.</p> <p>5 and 6. The parts of the charge in brackets.</p>

February 13th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius. Appeal from the decree of the Court at Nisi Prius: In Equity: No. 9, of July Term 1866. This was a bill in equity by Edward E. Marvine against Catharine Drexel and others, executors, &c., of Francis M. Drexel, deceased, and Francis A. Drexel, heir at law of said deceased.

<p>1. The object of a preliminary injunction is simply preventive, to maintain things as they are until the rights of the parties can be considered and determined after a full hearing.</p> <p>2. Preliminary injunction is never awarded except when the equity of the complainant is clear, supposing the facts of which he gives prim& facie evidence to be ultimately established.</p> <p>3. All injunctions are for restraint, yet final injunctions may go beyond this and command acts to be done or undone; they then are termed mandatory.</p> <p>4. A tribunal which finds itself unable directly to decree a thing should not attempt to accomplish it by indirection.</p> <p>5. It is very unusual to take testimony by an examiner on a motion for preliminary injunction.</p> <p>6. Transportation by a common carrier is open to the public upon equal and reasonable terms.</p> <p>7. An exclusive right granted to a common carrier only, is inconsistent with the rights of all others.</p>

<p>At Philadelphia, January 26th 1871. Before Thompson, C. J., Read, A&new and Williams, JJ. Sharswood, J., at Nisi Prius.</p> <p>Error to the Court of Common Pleas of Northumberland county : Of October Term 1870.</p> <p>William Conrad, on the 4th of November 1867, brought an action of assumpsit against John Eoy, administrator d. b. n. c. t. a. of Daniel Conrad, deceased.</p> <p>The cause of action was the following note:—</p> <p>“$700. March 21st 1865.</p> <p>“ One year after date, we promise to pay to William Conrad or order seven hundred dollars without defalcation for value received, and should judgment be obtained on this note against us, we do hereby agree that all our estate and effects, without exception or exemption, shall be subject to levy and sale in execution thereof, to an .amount sufficient to satisfy said judgment and waiving and relinquishing all benefit of any law exempting such estate and effects, or any part thereof from such levy and sale with interest from date.</p> <p>Albert Conrad, Daniel Conrad.”</p> <p>Daniel Conrad died about January 1866, having made a will, which was proved January 18th, and letters testamentary were issued to Charles A. Conrad (who is Albert Conrad to the note), the executor named in it. He was discharged May 14th 1867, and John Foy appointed administrator, &c.</p> <p>For the, defendants, D. D. Foy, the husband of one of the daughters of the decedent, testified that he and Abraham Sterner, the husband of another daughter, both daughters being legatees under the will, went to William Conrad in the spring of 1866.</p> <p>“ Sterner told him that he thought Albert was going back, and he should proceed against him. That they wouldn’t stand for this note or money; that he should enter it up; that they were not going to be responsible for the money. We told William Conrad we came there on purpose to give him notice. William Conrad said what I can’t remember. The note was not entered up at the time.”</p> <p>G. W. Neidig, who accompanied Foy and Sterner, testified: “ William was on porch. Sterner called him out and told him he wanted him to attend to that note he held against C. A. Conrad, that he wanted to make himself safe. He was afraid A1 would go back on him; that Bill should secure himself; that they would not stand good, that he should come on to the estate of Daniel D. Conrad. Sterner said C. A. Conrad had got money of Wm. Conrad and he was afraid A1 would go back on them, and they did not or would not let it come on estate. Amount was not mentioned. William said he was all right, he had a judgment-note. This was last of February or 1st of March, along in spring of the year.”</p> <p>Charles A. Conrad testified: “ My father went bail for $700 to Wm. Conrad, on note on which I got the money. After note fell due, last of May or 1st of June, he came for his interest for the first year. He gave me a receipt for the interest and told me he had note entered, that the boys told him they would not stand security any longer. I told him I didn’t like he entered that note. It was no judgment-note, and I told him I would give him security if he wanted it. Told him I would give him a judgment on my property. He said he had a judgment that was good enough. When I came to Sunbury I looked and saw he had note entered. He said Foy and Sterner had been up; this was before he came for his interest. I saw him again in beginning of December of same year. I came to Sunbury; met him at corner of Bassler’s store. We talked about this note. I told him I thought it was not a judgment-note. He said it was, and that he had a judgment that was good enough. I wanted him secured for his money. I told him in December, in conversation, I was going back. I told him I would secure him. He said he had a judgment that was good enough. I told him at that time it was not a judgment but a promissory note. I said nothing about other creditors pushing me, but I knew they would. I told him I was failing in business. against my property but note he No judgment ‘at that time entered.”</p> <p>Abraham Sterner testified: beginning of year. I called “ I went to William Conrad in 1866; him up and told him he should get that note against Charles A. Conrad entered up — that judgment-note he said he held against Charles A. Conrad; I told him the estate wouldn’t stand good for it if he didn’t get it entered up. I told him I thought it wasn’t safe the way it was. C. A. Conrad was in business and that we ought to be safe too ; I told Conrad I thought he was not safe the way it wasp I told him Albert was in debt in his business there; William said it was a judgment-note ; he didn’t show me the note. He said he would get the note entered. This was in February or March; note had not been entered up.”</p> <p>The record of the entry of the judgment on the note was as follows:—</p> <p>“ Ap D. No. 118, Jan. T. 1866.</p> <p>Judgment in plaintiff’s favor on single bill, with power to enter the same, dated March 21st 1865, for $700, payable one year after date. Defendants agree to waive benefit of exemption. Entered January 22d 1866.”</p> <p>William Conrad v. Albert Conrad and Daniel D. Conrad.</p> <p>On the 9th of August 1867, on the application of creditors of C. A. Conrad, this judgment was stricken off.</p> <p>In rebuttal, William Conrad, plaintiff, testified: “ Saturday evening near dark, in January 1866, 24th, Sterner and others came there; they wanted me to enter that note if anything should turn up with Albert Conrad that I would have first judgment; that is all that was said; I had the note entered on the 26th of January; I never told them it was a judgment-note; they all thought it was; six months afterwards I thought it was no judgment-note; I went to them and told them that I thought it was not a judgment-note ; they said they would see their lawyer about it. * * * We all thought it was a judgment-note at the time it was given. At the time Sterner and Foy called on me I thought it was a judgment-note, and so did they. They hadn’t seen the note then. I and Albert Conrad thought it was a judgment-note. They said I should get the note entered up. I took it to old Mr. Reimensnyder (prothonotary) — he looked over it and entered it.</p> <p>“ Eoy and Sterner, when they called on me, didn’t say anything about not standing for the note, but that I should do my duty, so that I should have the first judgment; Alfred was good yet, when by their direction I took the note to Evans.”</p> <p>The court charged:— * * *</p> <p>[“ The defendant contends that he is discharged from liability, because that before the maturity of the note upon which suit is brought, the holder, William Conrad, was informed by some of the devisees and legatees of Daniel Conrad, deceased, the surety in the note, that they thought Albert Conrad (the principal in the note) was going back, and he should proceed against him; that they wouldn’t stand for this note or money; that he should enter it up; that they were not going to be responsible for the money; that he should make himself safe; that he should secure himself safe; that it should come on the estate of Daniel Conrad; deceased ; that if the jury found the above notice had been given and request made, and that William Conrad did not proceed within a reasonable time and with due diligence to collect the note, that the surety was discharged.] * * * That if the surety is dead, if notice is given to the holder of the note or bond by some one having a right to give notice, the holder is equally bound to proceed, as if notice had been given by the surety. The character of the notice must be such as to inform the party to whom it is given what was desired of him. It must not be so ambiguous and uncertain as to leave it in doubt what is desired to be done.</p> <p>“ The plaintiff’s counsel contend that the notice is not of this character and that the notice was simply to enter up the note (all the parties at that time, it is probable, supposed it to be a judgment-note), which was immediately done.” * * *</p> <p>The court further told the jury, that [“ the persons giving the notice were devisees or legatees of Daniel Conrad, and interested in his estate, and that a notice by them or some of them was sufficient.”] * * * “ William Conrad held the note, and we think he was bound to know whether it was a judgment or not, and whether at the time it was entered as a judgment against Albert, he had real estate more than sufficient to -*pay it, if you believe the evidence, the entry of the note was not a lien on Albert’s property. The estate of Daniel Conrad, we think, should not suffer from William’s ignorance.” * * *</p> <p>The verdict was for the defendant.</p> <p>The plaintiff having sued out a writ of error, assigned for error the parts of the charge in brackets.</p>

<p>1. No'special mode is provided for appeal from orders of removal of paupers.</p> <p>2. Ordinarily an appeal is taken directly from and in the tribunal of judgment, and is a declaration made to it of an intention to be heard by a higher tribunal.</p> <p>3. In appeals in removal cases, there is no provision for a record by the magistrates.</p> <p>4. The Court of Quarter Sessions is the only tribunal where the trial of a controverted question of settlement can be had; there is no provision for a hearing before the magistrates.</p> <p>5. An appeal from an order of removal may be made by notice to the district from which the removal is made, an<l petition to the Quarter Sessions to allow the appeal without previous declaration of appeal to the magistrates making the order.</p>

<p>1. A promise of indemnity is broken by the recovery of a judgment against the person to whom the promise was made, and he may maintain an action without proof of payment.</p> <p>2. A capias ad, satisfaciendum, was issued and the defendant discharged at the request of the plaintiff. Held, that the judgment was satisfied.</p> <p>3. A defendant so discharged is still entitled under a contract to indemnity, to such costs and charges as he has been put to and such damages as he has sustained by litigation.</p>

<p>1. The records of the land office showed the location of an application and the survey returned into the office; a warrant afterwards issued called for the first survey and was surveyed and returned in accordance with its call; this prim®, facie excluded a vacancy between the two.</p> <p>2. The fact that the first survey may not have been run on the ground would not affect the second survey.</p>

May 1st 1871. Before Thompson, C. J., Read and Sharswood, JJ. Certiorari to the Court of Quarter Sessions of Lancaster county: Of May Term 1871, No. 20.

<p>1. In covenant upon a warranty, where the covenantee has been evicted of one-third by the widow of the covenantor, the measure of damages is the value of the widow’s life interest, estimating the fee by the purchase-money.</p> <p>2. In a dower suit against the covenantee, he gave notice to the executor of the covenantor to defend, which he did not do; the verdict for the widow was conclusive in an action on the covenant that there had been an eviction by lawful title.</p> <p>3. The covenantee employed counsel and defended the dower suit. Held, he was not entitled to recover his expenses in an action on the covenant.</p> <p>4. When a covenantor has been notified to appear and defend and fails and the covenantor proceeds and incurs costs, he does so on his own responsibility.</p> <p>5. It is error to permit a paper containing items, of which there is no evidence, to go out with the jury.</p>

May 2d 1871. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ. Error to the Court of Common Pleas of Lancaster county: No. 56, to May Term 1869. This was an action on the case for negligence, brought January 10th 1887, by Michael H. Moore, against the township of Rapho and the township of West Hempfield.

May 2d 1871. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ. Appeal from the Orphans’ Court of Lancaster county : Of May Term 1871, No. 87 in the estate of Fanny Breneman, deceased. The decedent died September 30th 1868, intestate, and administration of her estate was granted to Andrew Armstrong.

<p>May 2d 1871. Before Thompson, C. J., Read, A&new, Sharswood and Williams, JJ.</p> <p>Appeal from the Orphans’ Court of Lancaster county: No. 38, to May Term'1871.</p> <p>On the 16th of June 1870, Enos Pennock, administrator d. b. n. c. t. a. of Lavinia McNeel, late of Lancaster county, deceased, and Priscilla B. Pennock, a legatee under her will, petitioned the Orphans’ Court, setting forth,—</p> <p>That Jemima B. Carpenter, executrix of the said deceased, settled an account of her administration on the 17th of June 1867, and there are errors in said account as follows:—</p> <p>1. That the said accountant failed to charge herself with certain United States bonds and other securities, amounting to over $3000.</p> <p>2. That the inventory of the personal estate of the said Lavinia did not contain a full statement of all the estate of the said decedent, and that the said executrix frequently admitted that she had in her hands certain .United States bonds of the value of $1500, and other securities which she did not produce to the appraisers, or cause to be inventoried. The said Jemima, on the 12th of October last, was married to a certain John A. Tyler, and died in California within ten days thereafter, and that William Darlington, Esq., of West Chester, Chester county, in the state of Pennsylvania, is her administrator. That neither of the said petitioners were aware of the settlement of said account by the said Jemima till after it was confirmed, and that they had no opportunity whatever at the time, by reason of their ignorance of the proceeding, to object to such confirmation.</p> <p>They prayed the court to review and grant a rehearing of so much of the same as is herein alleged to be error, &c.</p> <p>The petitioners afterwards filed a supplemental petition, setting out more specifically the securities alleged to be unaccounted for.</p> <p>The account was filed May 13th 1867, and showed in the accountant’s hands a balance of $1619.14.</p> <p>A citation was issued to William Darlington, Esq., the administrator of the executrix, to show cause why there should not be a review of her account, returnable June 28th 1870.</p> <p>On the return day he answered:—</p> <p>“That the petitioners have not alleged, the existence of any facts entitling them to a review of the decree of the court confirming the account of the said Jemima B. Tyler, executor of the said Lavinia McNeel, deceased. They have not alleged that any error of law appears in the body of the decree; or that any new matter since the decree, or that any new evidence as to the facts on which the decree was grounded has been since discovered. The defendant does not believe that any such new matter has arisen, or any such new evidence has been discovered since the decree.”</p> <p>The court (Hayes, J.) delivered the following opinion, and dismissed the petition with costs:—</p> <p>“ In this petition for review of an account of administration, settled and confirmed in 1867, there is no assertion of error in law apparent on the face of the record, or in the body of the decree of confirmation; nor is there any averment of new matter which has arisen since the decree, or of any new proof which might not have been used at the time the decree was passed. The petition for review is rested simply on the ground of the petitioners’ ignorance of the account or decree. But the cases have definitely settled the law upon this subject, and it is clearly stated by Mr. Justice Strong, in Hartman’s Appeal, 12 Casey 75, in the following language: ‘ A petition of review must aver error of law appearing in the body of the decree sought to be reviewed, or new matter which has arisen since the decree, or that new proof has been discovered which could not possibly have been used at the time when the decree was made.’ Unless the petition is supported by one of these conditions it cannot be maintained, either on the score of right or as a matter of grace, appealing to the discretion of the court, but must be dismissed. This petition is deficient in the three essentials, as neither showing error in law, nor matter arisen since the decree, nor any new proof which might not have been used when the decree was passed.”</p> <p>The petitioners appealed to the Supreme Court, assigning the-decree for error.</p>

May 2d 1871. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ. Error to the Court of Common Pleas of Lancaster county: No. 36, to May Term 1871. This was an action of assumpsit brought January 9th 1869, by Lewis Spreeher against Samuel M. Knox. The parties had been partners as drovers, and had had a settlement of their accounts. Amongst other assets was a note from Milton Seldomridge for $713, given for the price of cattle of the firm purchased by him.

May 8d 1872. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ. Error to the Court of Common Pleas of Lancaster county: No. 48, to May Term 1871.

<p>1. The report of viewers recommending a bridge was referred to a grand jury, who approved it; the action of the grand jury was set aside for irregularity, and the report referred to another who reported “No bridge.” The proceeding here was at an end, and referring the report to another grand jury was error.</p> <p>2. The parties dissatisfied should have commenced anew.</p> <p>3. The law designs that the court, grand jury and commissioners shall be a check on each other as to expenditure of public moneys in erecting bridges.</p> <p>4. When either body disapproves, the proceeding falls.</p> <p>5. After a grand jury had disapproved of the viewers’ report, the court made a rule absolute to refer the report to another grand jury. A certiorari from the Supreme Court then sued out, was prematurely issued, there being no final action.</p> <p>6. It would have been otherwise, had the report been approved by the grand jury.</p>

May 3d 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Error to the Court of Common Pleas of Lancaster county: Of May Term 1871, No. 69. This was an action of assumpsit, commenced September 21st 1869, in which there was a case stated between The Lancaster County Agricultural Park Association, plaintiffs, and Catharine Shober and John A. Shober, administrators, &c., of Emanuel Shober, deceased, defendants.

May 3d 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.. Error to the Court of Common Pleas of Lancaster county : No. 65, to May Term 1871. The proceedings in the court below were upon a mechanic’s lien, filed by William Diller against John Adam Burger, for machinery, &c., furnished for a brewery and an addition thereto.

May 4th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Error to the Court of Common Pleas of York county: No.- 25, to May Term 1871. This was an amicable action and case stated in which the County of York was plaintiff and Jacob Smeich defendant (August Term 1870).

<p>May 4th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.</p> <p>Error to the Court of Common Pleas of Adams county: No. 59, to May Term 1871.</p> <p>This was an appeal by Moses Hartman and others, school directors of Mount Joy School District, from the report ofythe township auditors upon the settlement of their accounts.</p> <p>The appeal was filed April 10th 1867, and by agreement of the parties an issue was directed by the court, in which the district was plaintiff and the directors defendants.</p> <p>There were a number of questions distinctly specified in • the issue: 2. Whether the directors were entitled to credit for certain bounties, &c., paid by the directors ?</p> <p>8 and 4. 'Whether a payment of $195.68 made to John Rebert, and one of $47.54 to Aaron Sheely, were to be credited to the director's.</p> <p>6. Whether $10 counterfeit money in the hands of the treasurer should be credited to the commissioners.</p> <p>The directors had authorized the payment of $300 bounty to volunteers under the Acts of 1864 and 1865; volunteers could not be obtained for less than $590; the difference was raised by subscription of the citizens of the township; Rebert and Sheely were appointed a committee by the citizens to attend to procuring recruits, paying out the money, &c.; both the money paid by the directors and that raised by subscription passed into Rébert’s hands, and he incurred the greatest part of expense and labor; he had no authority from the school board as such; he did not keep the two funds separate; the bills of expenses were made up of travelling expenses, lodging, boarding, discount on money, &c. These expenses, together with the other matters specified in the agreement for the issue, the auditors refused to allow. The amount paid by the directors and the subscriptions were not enough to pay the bounties and expenses.</p> <p>The following are points of the defendants (the directors), with their answers:—</p> <p>4. The legislative grant of power to pay bounties to volunteers and raise money by taxation for that purpose, includes, by implication, power to defray the expenses necessarily incident to the purposes of the grant; and, therefore, if the jury believe that the bill of expenses proved by John Rebert was incurred in filling the quota of Mount Joy township, and was reasonable and proper in amount, and was allowed him out of the township money in his hands, the defendants are entitled to credit in this settlement for the amount.</p> <p>Answer: “ We cannot answer this point in the affirmative. We negative it. The expenses mentioned in it cannot be paid out of township funds, if the township had already paid $300 for each man put in.”</p> <p>5. If the bounty committee of Mount Joy township were obliged to pay an average of $590 per man to fill this quota, and if the money raised by subscription was not sufficient to pay the difference between $300 per man, which the law allowed the township authorities to pay, and the amount actually paid to each as proved by John Rebert, the school directors had the legal right to pay the expenses necessarily incurred in filling the quota out of the township funds, in addition to the $300 bounty.</p> <p>Answer: “ We cannot answer this point in the affirmative. The expenses mentioned in it cannot be paid out of the township funds, admitting the fact to be as stated in it, that each man put in cost $590, exclusive of expenses, and that $300 was paid out of the township funds for each man put in, exclusive of expenses.” •</p> <p>6. If Aaron Sheely agreed to contribute to the bounty subscription of Mount Joy township the amount of his expenses as a member of the committee, and if he expended as such $42.54 in filling the quota of said township, and if the bounty subscription of said township was not sufficient to pay the excess of bounty paid by the committee over the amount allowed by law, and if Mr. Sheely did not pay the amount into the subscription fund, but held his said hill of expenses in lieu of such payment, and this deficiency in the subscription was' supplied by township money; the result is the same as if he had paid the $42.54 into the fund and received it again out of the township money; and defendants having thus virtually paid this item, are entitled to credit for it in settlement.</p> <p>Answer: “ If the township of Mount Joy paid $300 towards putting in each man, no portion of the township funds could be taken for the purpose mentioned in this point.”</p> <p>The jury found for the plaintiff, the School District, as follows:— Expenses for John Rebert, .... $195.68</p> <p>“ “ Aaron Sheely, .... 42.54</p> <p>Counterfeit money in hands 'of Treasurer, . . 10.00</p> <p>$248.22</p> <p>The defendants, the directors, appealed and assigned the answers to their points for error.</p>

May 4th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Error to the Court of Common Pleas of Adams county: No. 60, to May Term 1861. On the 6th of November 1867,' John Kuhns brought this action, which was debt, against The Gettysburg National Bank. The claim of the plaintiff was for the amount of the hereafter-mentioned draft, received b.y the defendants, but belonging to him. The draft, with its endorsements, is as follows:— “No. 1852.

May 4tb 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Error to the Court of Common Pleas of Adams county: No. 70, to May Term 1871. Held: Jacob Keller had an equitable interest in the same as tenant in common with Moses A. Keller, and the lien is entered only against Moses A. Keller, the lien is fatally defective and cannot be sustained, and the verdict of the jury must be for the defendants. The court reserved these points.

May 5th 1871. Before Thompson, C. J., Agnew and Sharswood, JJ. Appeal from the Court of Common Pleas of Lancaster county: Of May Term 1871, No. 77. In the distribution of the assigned estate of Samuel Hess. On the 27th of February 1869, Samuel Hess made an assignment for the benefit of creditors to Robert A. Evans and George K. Reed.

<p>1. A deposition taken in an equity suit in which a devisor was plaintiff, is evidence in an ejectment for the same subject-matter in which the devisee and the defendant in- the equity suit were parties, the devisee being a privy in estate.</p> <p>2. If a deed cannot be treated as a bargain and sale for want of a pecuniary consideration ; yet if the consideration of blood exist, it will be supported as a covenant to stand seised.</p> <p>3. An uncle, in consideration of love and affection, conveyed land to nephews in fee, with this reservation: “ Nevertheless, the said (uncle) reserves the rents and profits arising out of the said premises and dwellings for and during his natural life or lifetime, and at his decease, then the right of rents and profits of and in said land becomes vested inthesaid (nephews).” The estate in the grantees was not a freehold commencing in futuro ; nor was the deed testamentary or revocable.</p> <p>4. A recorded deed in Pennsylvania will be construed as a feoffment, with livery of seisin or as a deed under the statute of uses as will best effect the intention of the parties.</p>

May 8th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Error to the Court of Common Pleas of Franklin county: No. 41, to May Term 1871. This was an action of debt, commenced October 31st 1868, by Edmund Wright and J. B. Levering against William Beber.

May 9th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Appeal from the Orphans’ Court of Franklin county: No. 44, to May Term 1871. In the estate of Adam Shirey, deceased.

May 9th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Appeal from the decree of the Orphans’ Court of Somerset county: Of May Term 1871, No. 105. In the distribution of the estate of Theobald Folmar, deceased.

<p>I 1. The rule as to duress per minas has now a broader application than formerly.</p> <p>2. Where one has the property of another in his power, so that he can exert his control over it to the prejudice of the other, a threat to use this control may enable the other to avoid an obligation obtained without consideration by means of the threats.</p> <p>3. Mere threats of injury to property, without power over it to enable the party to execute the threats, are not duress per minas.</p> <p>4. The constraint which takes away free agency, and destroys the power of withholding assent to a contract, must be one which is imminent and without immediate means of prevention, and such as would operate on a person of a reasonable firmness of purpose.</p> <p>5. A threat to withhold payment "of a debt, or to refuse performance of contract, or to do an injury which may be at once redressed by legal process, is not duress per minas.</p> <p>6. There is not a duress per minas in equity which does not exist at law.</p> <p>7. A chancellor will refuse specific execution of a contract for a reason less than would constitute duress per minas, or will set aside a bargain for extortion or undue influence on a weak mind or under circumstances of a confidential relation, but will not set aside an agreement for duress per minas when the law would not.</p> <p>8. The facts in this case did not constitute duress per minas.</p>

May 10th 1871. Before Thompson, C. J., Ag-new, Sharswood and Williams, JJ. Error to the Court of Common Pleas of Blair county: No. 71, to May Term 1868. The proceedings in the court below were under an attachment execution issued at the suit of Ellen Bouslough against Jacob H. Bouslough, in which William Bouslough, in his own right, and as. executor of Jacob Bouslough, deceased, and Henry Fleck, were summoned as garnishees.