Volume 69 — Pennsylvania State Reports

Mandamus to Charles D. Hippie, Esquire, District Attorney of the county of Schuylkill, to sign, &c., bills of indictments upon recognisances returned into the Criminal Court of Schuylkill county. By an Act of Assembly approved April 18th 1867 (Pamph.

296, to January Term 1870. This was an action of ejectment, brought January 4th 1868, by Henri Edmund Soullier and nine others, heirs at law of Jean Marie Soullier, deceased, against William H. Kern, for a lot of land on Race street, Philadelphia. Jean M. Soullier became the owner of the premises in 1809, and died in 1821. After his death F. A. Raybold, Esc]., as the agent for his heirs, who resided in France, leased the premises.

<p>Error to tbe Court of Common Pleas of Schuylkill county: Of January Term 1870, No. 146.</p> <p>This was an action of ejectment for a lot on Minersville street, in Pottsville, commenced November 21st 1863, by Daniel Williams, against Robert T. Davis and Elizabeth Davis, his wife. Robert T. Davis having died, his death was suggested May 15th 1865, and his daughter, Mary Smith, and his son Shadrach Davis, his heirs at law, were substituted. It did not appear by which party the suggestion and substitution had been made.</p> <p>The premises had been conveyed on the 8th of July 1856, to Robert T. Davis by Edward T. Taylor. On the 31st of October Davis conveyed them to Samuel 0. Harris, “ in trust to convey them immediately” to his wife, Elizabeth C. Davis; on the same day Harris conveyed them to Mrs. Davis. On the 4th of April 1859, Williams, the plaintiff, recovered a judgment for $1594.91 against Davis and 0. W. Edwards as partners; issued an execution on the judgment and bought Davis’s interest in the premises for $100; the sheriff’s deed was acknowledged June 11th 1863. Williams then brought this ejectment, alleging that the conveyance to Mrs. Davis was in fraud of her husband’s creditors and that the title remained in Davis.</p> <p>The cause was tried October 26th 1869, before Rj'on, P. J.</p> <p>The plaintiff gave in evidence the deed from Taylor to Davis, consideration $8700; also mortgage of same date from Davis to Taylor on the premises to secure a bond for $1700, the remainder of the purchase-money, payable July 8th 1859. Assignment of bond and mortgage February 24th 1864, to William Harris, for the consideration of $1654.</p> <p>He also gave in evidence a number of judgments against Davis, from August 4th 1857, until January 30th 1858, amounting in the whole to about $3800. One judgment was in favor of Tobias Wintersteen against Joseph Johnson, John Waugh and Robert T. Davis, as the firm of Johnson & Waugh; another in favor of M. I. Siebert against the same defendants.</p> <p>He then called William Harris, who testified that he had bought the mortgage at the request of Davis, as the owners were pressing payment, and Davis thought.he thus would get more time.to pay. Davis was then living in the house; Mrs. Davis had paid witness $700, besides interest on the mortgage; Davis had paid none; fourteen months’ interest were then due.</p> <p>John Reese testified that he, David Lloyd and Davis had been partners in gold digging in California in November 1854; they had bought a claim for $1500 and another for $500 ; they had no money, and borrowed money to make the payments; they had $500 or $600 each when they came back, after paying what they had borrowed; they got the money for the sale of their claims.</p> <p>David Lloyd testified that Davis was treasurer of the firm; their last settlement was in April 1856 ; Davis had $1700, which was divided; witness had about $600; Davis had no more chance than he; Davis and witness had at first about $250 each, and afterwards borrowed $1500 ; Davis worked-in other claims, but the three were equally interested in them.</p> <p>Peter D. Luther testified that Davis and Charles W. Edwards, in August 1857, entered into partnership in a contract for mining coal, at so much a ton, for Rogers, Sinnickson & Co.; coal mining was a risky business; they gave a judgment to Rogers, Sinnickson & Co. for some mules, and as a guaranty for properly working the colliery; the judgment was on some property on Minersville street, Pottsville, and it was afterwards ascertained the deed was ip Mrs. Davis’s name.</p> <p>Joseph Johnson testified that Davis had no interest in the firm of Johnson & Waugh; witness and Davis, as accommodation drawers, gave Waugh two notes of $400 each, to enable Waugh to buy goods; Waugh passed them off and ran away; Davis had nothing to do with the Wintersteen and Siebert judgments ; witness had paid both.</p> <p>Daniel Williams, the plaintiff, was called as a witness. He said he had a talk with Davis as to the business he was in. It was then proposed to prove by the witness “ that in the spring of 1857, while Davis was occupying the property in suit, that he told the witness he was then engaged in business at Eagle Hill with Joseph Johnson and John Waugh. This is offered to show that Davis was at the time one of the firm of Johnson & Waugh.”</p> <p>The offer was objected to by the defendants, rejected, and a bill of exceptions sealed.</p> <p>The plaintiff then rested.</p> <p>Charles W. Edwards was called by the defendant, and testified that through his importunity Davis went into the coal business with him in July or August 1857; Davis and witness had no capital.</p> <p>David Davis, a brother of Robert, testified that Robert did not intend to stay in California, “ he intended to get a little property for his family and then return;” he was going back to the gold diggings; he had no property beside this in dispute.</p> <p>Shadrach Davis, one of the substituted defendants, was offered as a witness for defendants. He was objected to by the plaintiff, “ on the ground that he was a party to the record, and not within the Act of 15th April 1869.” He was admitted by the court and a bill of exceptions sealed.</p> <p>He testified that his father returned from California in the spring of 1856; he had some money ; his mother had no money but what was sent to her from California and what was saved; his father bought the premises to maintain his family ; he intended to go back to California; he was sick two or three months; some one enticed him to go into business here; it “ was quite a sudden affair, it was talked of and he went right into it;” he gave up the idea of going to California when he went into the coal business ; during his sickness he intended to go back to California as soon as his health was fit; he said his intention was to go into the gold business ; he kept up the idea until he went into the coal business.</p> <p>The defendants then gave in evidence a deed dated May 15th 1856, from Benjamin L. Titus to Robert T. Davis, for a lot in Pottsville, for the consideration of $500, and rested.</p> <p>The plaintiffs, in rebuttal, called Shadrach Davis, who testified that so far as he knew his father conveyed the Titus property to William Fox for advances to him when he went into the coal business ; he had bought the house immediately after his return from California with money he brought home with him.</p> <p>Plaintiff proposed to prove “by the testimony of Shadrach Davis and others, that when Robert T. Davis returned from California he had no property or money but that which he made in California as a partner with Lloyd & Reese, less than $2000, alleging that was the whole of the proceeds of the partnership, and that the excess above the amount divided as aforesaid, belonged, one-third to Reese and one-third to Lloyd. This is offered to show where the money came from with which he purchased the property from B. N. Titus, and that he was indebted for that amount and upwards to his partners Lloyd & Reese.”</p> <p>Defendants objected “ that the testimony offered is irrelevant and not rebutting.”</p> <p>The offer was rejected, and a bill of exceptions sealed.</p> <p>S. Davis further testified that his father left no property at his death except what was in possession of his wife.</p> <p>William Eox testified that he bought the Titus property from Davis for $500 ; its worth at the time of trial was from $500 to $700.</p> <p>The deed to Eox was dated August 8, 1857. The parties submitted points hereafter stated.</p> <p>The court charged: * * * “If Davis was solvent at the time he made the conveyance to a trustee to convey to his wife, he had a right to settle a reasonable amount of his property upon her for her support, if at the time he made the conveyance he did not contemplate going into business in which he might contract debts. The fact that he did go into business subsequently, would not invalidate the conveyance, unless the conveyance was made at a time when Davis contemplated going into some business which might be termed hazardous, and in which he might incur debts; and to withdraw the estate from such indebtedness in the latter case, the conveyance would be void as against the debts of Davis incurred subsequent to the conveyance.</p> <p>, “ If, therefore, Davis made this conveyance at the time (81st Oct. 1856), he contemplated going into business, though he was solvent at the time the conveyance was made, in which indebtedness might be incurred by him, the conveyance to his wife was void, and the plaintiff would be entitled to recover. If, however, the conveyance was made for the purpose of giving a reasonable amount of property to his wife, as a reasonable settlement for her maintenance and support, and when he was solvent, and at the time did not contemplate going into business, the conveyance could not be avoided by his subsequent creditors. The law will not sustain a conveyance made in view of future business, in which the possible chances might be such as to create an indebtedness. This is hazardous business, because the result may be insolvency.”</p> <p>The plaintiff's points with the answers were :</p> <p>1. If the jury believe that Davis gave his personal obligation for the balance of purchase-money payable to his vendor, Edward T. Taylor, viz'.: for $1700, for the property in suit, and that he made no provision for its payment by any personal assumption of the debt by the purchaser, and had not then any other property or means out of which to pay said debt, the same not fully maturing until 1859, the conveyance to the wife was fraudulent and void as against creditors, and the plaintiff is entitled to recover.</p> <p>Answer: “Negatived, with the remark, that the balance of the purchase-money (unpaid) was secured to Taylor upon the property. The conveyance did not prejudice the claim of Taylor, and therefore it was not such a debt as would, under this conveyance, be void as against subsequent creditors, for that reason alone.”</p> <p>2. If the jury believe that at the time R. T. Davis conveyed the property in question to his wife, he intended to return again to California to engage in gold mining, as he had done before, as testified to by his brother David Davis, and his son Shadrach Davis, the conveyance to his wife was void, as against the plaintiff in this suit.</p> <p>Answer: “ Davis did not go to California, nor did he go into gold mining; hut if he did intend to go into gold mining, it would be a question to be determined by the jury whether it was hazardous business or not. We, therefore, negative the point.”</p> <p>3. It was Davis’s intention at the time he made the conveyance to his wife, and not the subsequent fulfilment or non-fulfilment of it, that constitutes a test of the validity of his conveyance to his wife; and if Davis intended at the time he made such conveyance, to enter into any hazardous business, whether he subsequently engaged in it or not, the conveyance is void as to the plaintiff.</p> <p>4. Under all the evidence in the case the plaintiff is entitled to recover.</p> <p>These two points were negatived.</p> <p>5. If the jury believe that at the time R. T. Davis conveyed the property in suit to his wife, it constituted the whole, or nearly the whole, of his estate, and that he did it with a view of making a settlement for his family, and intended at the same time to return to California, to engage in gold mining, as he had done before, and in which business indebtedness might be contracted, the conveyance to his wife was void, as against the present plaintiff, and he is entitled to recover.</p> <p>Answer: “We negative this point. The business of gold mining may create an indebtedness, and yet not such as to vitiate the conveyance, for the reason that the business may have ample assets, or may not be hazardous, and possible insolvency follow. A man may make a settlement of a reasonable portion of his estate upon his wife, even though he may have some other debts, if his other property is ample to satisfy all just demands.”</p> <p>The following were points of the defendants:—</p> <p>1. Under the evidence in this case, Robert T. Davis was solvent and without any debts against him at the time he conveyed .the property in question to Harris for' the purpose of having the same conveyed to his wife.</p> <p>2. There is no proof that Davis, at the time of said conveyance, contemplated going into any business of a hazardous character, or that required him to obtain credit.</p> <p>The court affirmed the 1st and answered the 2d as follows:—</p> <p>“ The defendant, Robert T. Davis, contemplated going to California, as the evidence shows, at the time the conveyance was made to his wife (31st October 1856). If he intended to go to California, and there go into mining gold, and such business would be hazardous, then against such debts the conveyance would be void. But was 'gold mining such hazardous business as would be likely to create debts and be termed hazardous ? If it is, then this point is negatived, and verdict should be for plaintiff; if not hazardous, as before explained to you, then the point is affirmed.”</p> <p>The verdict was for the defendants.</p> <p>The plaintiff took a writ of error and assigned for error :</p> <p>I. The admission of Shadraek Davis as a witness.</p> <p>2 and 3. Rejecting the plaintiff’s offers of evidence.</p> <p>4-7. The answers to the plaintiff’s 1st, 2d, 4th and 5th points.</p> <p>8 and 9. The answers to the defendants’ points.</p>

This was a bill by Jamos S. Marsh, Joseph W. Shriner and Charles C. Sharkley, administrator, &c., of Frederick Marsh, against Samuel Geddes.

248, to January Term 1871. This was an action on the case, commenced September 30th 1869, by Francis Starrs against The Chesapeake and Delaware Towboat Company.

No. 221,to January Term 1871. This was an action of debt, commenced December 4th 1868, by Anna L. Burroughs; against the North American Life and Accident Insurance Company (formerly the North American Transit Insurance Company), to recover the amount of an insurance on her husband, Garrett S. Burroughs, from death by accident.

<p>1. If the tendency of evidence offered, be to prove a fact, it is not the province of the court to say whether it would actually prove it. If with other facts in the case, it tend to establish a result, it should be admitted.</p> <p>2. Richards subleased to Pratt, a room in a building for nine years, the term having fifteen months to run. Pratt wrote to Richards that he had failed, and offered to surrender; about the same time Richards surrendered to his landlord. Pratt received no reply, no claim for rent was made for seven years; — evidence that after Richards surrendered, he delivered possession to his landlord, who collected the rents from other tenants of the building ; — that Pratt did not occupy the room afterwards, &e., was admissible in an action for rent by Richards against Pratt, on the question of surrender by Pratt.</p> <p>3. If the surrender was an accomplished fact, the Statute of Frauds did not apply: the lessor holding the premises, would be estopped from claiming rent.</p> <p>4. Richards could not claim, from Pratt, rent accruing after Richards’s surrender.</p>

<p>1. The courts of this state have jurisdiction to restrain public nuisances, producing private injury, but it will be exercised only when the right is clear and not doubtful, and when the threatened injury is of a permanent or irreparable character.</p> <p>2. That the party has a remedy at law by indictment or action, will not alone prevent the exercise of the power.</p> <p>3. A road was laid out in 1820 through Bunnell’s land; in 1868 he erected a “ stone row ” across what was alleged to be the road. In a proceeding in equity to restrain him from niaintaining the erection, &e., alleging it to be a public nuisance, and a special injury to the plaintiff, the evidence was conflicting as to whether the road had been opened by the supervisor, where it had been opened, and that the route of the road had been frequently changed, &c. Held, that the proceeding in equity could not be maintained: 1. Because of the uncertainty of the location of the road: 2. That there was a full remedy at law: 3. That the injury was not permanent and irreparable.</p>

176, to July Term 1868. , This was an action of ejectment brought January 9th 1866, by George Narehood against Jacob Wilhelm and others, for a tract of land in Graham township.

90. The proceeding here was an attachment execution issued December 22d 1864, by a justice of the peace, at the suit of Samuel Heffner against William Yost, on a judgment for $32.60, recovered July 24th 1864. Daniel Yost was summoned as garnishee. Interrogatories to the garnishee were filed on the day the attachment was issued and a rule taken on him to answer in eight days. The writ of attachment was returnable December 29th.

<p>1. When there is no question of bankruptcy, the transfer of property by an insolvent debtor, to a creditor for a debt, accompanied by delivery of possession, is not fraudulent and void, if there be no intent to hinder, &e., creditors, though this may be the tendency.</p> <p>2. Without legal fraud, it is the intent with which ithe transfer is made, not its effect, that characterizes the transaction as honest or fraudulent.</p> <p>3. An insolvent selling property in payment of his debts, cannot reserve any of it for his own benefit; a stipulation for such reservation renders the transaction void.</p> <p>4. Roller, a tanner, who was insolvent, transferred all his property to Bentz in payment of a debt, and received a note for a balance. At the time of the transfer, there was an understanding that Roller should get back part of the property for working out the tannery stock, and that the money was to be made out of the stock before the note should be paid. Held, that the transfer was void.</p> <p>5. At the time of the transfer, Roller was lessee of the tannery. Bentz rented the tannery from Roller’s landlord, and gave him a note for rent for the remainder of the year. Roller with the property remained on the premises as before, worked out the stock, which was sold, Bentz receiving the money. Held, there was not such a change of possession as would render the sale valid against creditors.</p>

79, to May Term 1871. This was an action of ejectment, brought August 15th 1867, by Samuel M. Seylar against George W. Smith, F. W. McNaughton and James 0. Carson, for a tract of eight acres of land, with its improvements, known as the “ Gap Foundry.” Carson having died, his death was suggested on the record November 3d 1870, and James W. Carson and others, his executors, substituted.

61, to May Term 1871. Ejectment, in which Margaret Glancy and Esther Glancy were plaintiffs, and Lewis Robinson and Ellen bis wife were defendants. This was a case stated in which the following facts appeared:— William Glancy died intestate, leaving a widow Elizabeth, since dead, and four children, to wit: Elizabeth, married to Adam Peffer, Hester Glancy and Margaret Glancy, and Ellen, now married to Lewis Robinson.

68, to May Term 1871. This was an action on the case “for infringement of water-right,” brought September 8th 1869, by Thomas Lindsey against Jacob Lindeman and George Eishel. The declaration contained six counts; it set out that the plaintiff owned a fulling-mill and had the right to the water of the Conodoguinet creek, by which his mill was propelled. And averred: 1.

<p>1. The right of petition is not so sacred, that the private purposes and motives of the petitioners may not be inquired into.</p> <p>2. A groundless petition, instigated only by malice, is not the night of any citizen, if it results in harm to its object.</p> <p>3. Citizens remonstrated to the school directors against appointing the plaintiff teacher, stating no reasons for their objection. They had a right to remonstrate, but the right could not be made the means for gratifying malice and enmity.</p> <p>4. The plaintiff was rejected by the board after the presentation of the remonstrance; he at the time had no certificate from the county superintendent : this did not prevent his recovery, if the remonstrance was malicious and did him damage.</p> <p>5. After his rejection, the plaintiff obtained another school at a higher salary. This would be in mitigation, but did not bar his recovery. The wrong was complete when he lost his place by the malice of the defendants.</p>

May 11th 1871. Before Agnew, Sharswood and Williams, JJ. Error to the Court of Common Pleas of Cumberland county: No. 72, to May Term 1871. On the 30th of June 1868, William Overdeer brought an action of trespass against Joseph Updegraff. The parties occupied houses on adjoining lots.

Appeal-from the decree of the Court of Common Pleas of Cumberland county: Of May Term 1871, No. 104. In matter of the appraisement, under the exemption laws, of the goods of B. F. Thomas. On the 9th of March 1866, A. D. Meals entered a judgment for $200 on bond with warrant of attorney against B. P. Thomas. The bond was dated September 25th 1865, and contained no waiver of exemption.

106, to May Term 1871. The proceedings in the court below were in the distribution of a fund arising from a sheriff’s sale of real estate under an execution at the suit of The Goodyear Rubber Belting and Packing Company, against Gilson Smith, John Smith and John Gribble, trading as Gilson Smith & Co. The fund was claimed by the creditors of Gilson Smith & Co. as the proceeds of partnership property of the firm, and by the individual creditors. of Gilson Smith and John…

<p>Writs of error t’o the Court of .Common Pleas of Blair county: No. 30 and 34, to May Term 1871.</p> <p>The two cases brought up by these writs of error were actions of trespass q. c. f. against John Brotherline; one brought January 6th 1869, by The Juniata Iron Manufacturing Company ; the other brought January 21st 1869, by Essington Hammond.</p> <p>The actions were for the same trespass, viz. Entering upon a tract of land in Blair township, on which the iron company claimed the right to cut timber and of which Hammond claimed the fee simple. The tract had originally belonged to Dr. Peter Shoenberger, under whom the plaintiffs claimed. The defendant claimed title under a treasurer’s sale for taxes.' The only question raised was the identity of the tract sold to the defendant, on which it was admitted the defendant had cut timber, with that owned by Shoenberger.</p> <p>The cases were tried together, November 4th 1869, before Taylor, P. J.</p> <p>The plaintiffs gave in evidence a warrant, February 13th 1794, to Daniel Kritler for 400 acres of land in Woodberry township, Huntingdon county, and survey July 12th 1794, of 461 acres 97 perches in Woodberry and Frankstown townships, patent to Jonas Hartzell, November 23d 1818, and deed Hartzell to Dr. Shoenberger, December 15th 1818. Dr. Shoenberger died in 1854. In 1866 the mining company obtained title to the iron ore and the timber on the tract for mining purposes; in 1868, the land was conveyed to Hammond excepting the interest previously conveyed to the company.</p> <p>In 1846, the county of Blair was formed from Huntingdon county and embraced the townships of Woodberry and Franks-town. Huston township was afterward formed out of Woodberry township, and about 1856, Taylor township was formed out of Huston and Woodberry townships.</p> <p>The plaintiff gave evidence that part of the tract was in Blair township, which was formed from Huston; and part in Franks-town ; the cutting was done in Blair township.</p> <p>The defendant gave evidence of a treasurer’s sale to him of 230 acres in Frankstown township in the name of “ Daniel Kladder,” for taxes of 1859, 1860, deed acknowledged August 13th 1862. He gave in evidence the assessment books of Huntingdon county from 1805 to 1846; they showed assessments of 461 acres 97 perches to Jonas Hartzell from 1807 to 1818 inclusive, in the name of “Daniel Kridler;” assessments from 1819 to 1846 to Dr. Shoenberger, viz., 1819, 1820, 461 acres 97 perches in the name of “Daniel Kridler;” 1821, same quantity in the name of “ Daniel Kritler ; ” 1822 to 1826, inclusive, 461 acres 7 perches, “Daniel Kredler;” 1827, 1828, “Daniel Kredlin;” 1829 to 1834, inclusive, “Daniel Kritler; ” 1835 to 1837, “Daniel Kridler;” 1838 to 1846, when Blair county was erected, “Daniel Kladder.”</p> <p>It was admitted that Dr. Shoenberger paid the taxes on this tract until 1846.</p> <p>He then showed by a certified copy of the assessment of Franks-town, whilst in Huntingdon county, for 1846, assessment to Dr. Shoenberger in the name of “Daniel Kladder,” 461 acres 7 perches; the next assessment, 1847, is the same; it was not on the assessment from 1848 to 1852 inclusive; 1853, “Daniel Kladder,” 416 acres ; not on the assessment from 1854 to 1859, inclusive ; 1860, “Daniel Kladder,” 461 acres; 1861, not in; 1862 to 1867 inclusive, “ Daniel Kladder,” 461 acres 7 perches, it being erased in 1867, and marked “no such tract found.”</p> <p>In Huston township 1847 — 1848, “ D. Kladder,” 230; in 1849 it is not there; 1850, “ D. Kladder,” 230 acres. In 1856, 1857, after Taylor township was cut off, it was assessed in that township on the seated list in the name of “D. Kidler, 230 acres.”</p> <p>He then gave in evidence the land ledger, page 142, headed “Huston, Taylor, Frankstown,” showing charges to “Daniel Kladder ” for 230 acres in Frankstown from 1847 to 1866 in-elusive. For 1847 to 1848 Dr. Shoenberger paid the taxes; 1849 to 1852, taxes paid by J. Penn Jones; for 1853 to 1856 the taxes were paid, but it did not appear by whom. For 1859 to 1866 by defendant. In 1847 and 1850 there appeared assessments of 230 acres, “ Daniel Kladder part.”</p> <p>The plaintiff in rebuttal gave in evidence “Land Ledger” for Blair township, showing charges to “ Daniel Kritler ” for 400 acres from 1847 to 1854 inclusive, also 1863 to 1864; payment by Dr. Shoenberger for 1848 to 1850 ; payment by D. C. McCormick for 1851 to 1854. Also assessment in Blair township for 1860, “Dr. Kritler” 400 acres; also “Land Ledger Frankstown township,” page 47, charges to “Daniel Kladder” from 1846 to 1851, on 461 acres and 7 perches; with the further entries “ 1852 June 14th sold to county commissioners,” “ 1864 January 24th, commissioners sold to John Oresswell.” “Should be ‘Daniel Kritler,’ as appears by report of Mr. John Oresswell for the Land Office, Harrisburg, showing that there is no such tract as ‘ Daniel Kladder,’ 31st October 1867. J. Baldridge, clerk.”'</p> <p>After this information, the commissioners took the tract back and refunded the money to Oresswell.</p> <p>The plaintiff proved by William Forbes that as manager for McCormick, who was the successor of Shoenberger, he had charge of paying the taxes on the Kritler tract from 1856 to 1866; he paid taxes on it after the sale to Brotherline; paid up to 1865 or 1866. Forbes had the Kritler tract put on the seated list. Plaintiff gave evidence that there was no “Kladder” tract in that vicinity; but that there were two about three miles distant, one in the name of Daniel Kladder, and the other in the name of Jacob Kladder. The defendant’s theory was that the one half of the tract, 230 acres, was regularly assessed in Frankstown township, and the other half in Huston or Taylor; that the assessment of the 230 acres in Frankstown sold to him, was a regular assessment of the 461 acre tract warranted in the name of Daniel Kritler.</p> <p>Judge Taylor charged</p> <p>* * * “ But the question still arises, is the assessment of Daniel Kladder as containing 230 acres in Frankstown township, a regular assessment of Daniel Kritler, containing 491 acres and 97 perches, shown to lie in Blair township ? Is it, upon the face of the assessment, the same tract ? Is it, upon any fair inference that can be drawn from all that appears on the books, or in the evidence, the same land ? If it was the same land, the land upon which the cutting was done, that was assessed and sold under the other name, and that made apparent by sufficient evidence, then the'sale would vest the title in the defendant. [It is the land that is taxed and sold; but the land cannot be correctly taxed and sold under any name or designation. It must be assessed in some name by which the tract is known — some name connected with it, or some ownership of it, so as to identify it and give not only the owner notice but inform bidders what tract is intended to be sold. There must be some such identification.</p> <p>“Now, is this tract identified by name in the assessment? Daniel Kladder is an entirely different name from Daniel Kritler. Some difference in the spelling of a name is of but little consequence ; and there are some variations in the assessment of this" Kritler traced in Huntingdon county down to 1837, where it occurs sometimes Kritler, and once Krydler, and again Kritler. These variations do not materially change the name, it being still idem sonans. • But Kladder and Kritler are as essentially different names as any other words of two syllables beginning and ending with the same letters. They are not idem sonans. There is nothing in the sound of one that could suggest the other. They are different names. Then again, while it is a different name, the assessment was of a tract of different quantity, and as lying in another township. Now, in all this, there is an entire absence of every element of identification.</p> <p>“ It is answered, however, that going back to the assessment of the Kritler tract to Dr. Shoenberger in Huntingdon county, it is discovered that although from the date of Hartzell’s deed down to 1837, the tract was represented as Kritler, yet the last two years it had been changed to Kladder, and that the certified list from the assessment of 1846 shows that it was introduced into the commissioners’ office of this county as Kladder, and first put in taxation here as Kladder. But a previous assessment of a tract, properly or improperly made, does not do away with the necessity of a proper designation of it at the time it is sold; some designation that indicates in the assessment itself to the owner or purchaser what tract it is; either from its own name or the name of some owner. How it was assessed on some former occasion, correctly or incorrectly, is not sufficient to make out its identity.</p> <p>“But upon this subject we find the commissioners here were not laboring under any mistake, or at least the mistake of supposing that Daniel Kladder, 230 acres in Frankstown township, was the same and identical with Daniel Kritler, 461 acres and 97 perches, in Blair township. Their mistake, if it was a mistake, evidently was in supposing that there were two tracts represented by these different names, as of the different quantities and in the different localities. For, in 1847, the first year after the erection of this county, they assessed Daniel Kritler, 400 acres in Blair township, where it belongs. * * * That the commissioners or assessor should have stumbled by chance upon a correct name in this way, so as to get it letter for letter, is not supposable. It is only to be accounted for on the supposition that they had ascertained and knew the true name of the tract. This mark of identity is most convincing. Besides it is in the same township where it is represented to be, and there continues to be assessed from 1847 down to 1854, and as the books show the taxes all the time paid for seven years after the erection of the county, the first seven years of the existence of the county as a county. * * *</p> <p>“ It will be remembered, also, that during the same years prior .to the sale ; 1846-7-8-50-51 — at least down to 1851 — the same commissioners were taxing and assessing Daniel Kladder as lying in Erankstown township. Now, could this be accounted for on any other hypothesis than that the commissioners understood, believed, and treated Daniel Kladder as a different tract from Daniel Kritler ? Is it not plain, taking all the facts together, can there be a doubt that the commissioners were led into the error, if it was an error, and acted under it all through, of supposing that they had two tracts at least, represented by these names, to deal with, if not more ? * * * * * *</p> <p>[“ The question of identity is generally a question of fact, to be decided by the jury. It is to be determined by the jury when there are facts upon which the question should be submitted. If it were so submitted, in view of the facts in evidence already stated and discussed, and the further fact that the commissioners after-wards took back a treasurer’s deed to Mr. Cresswell for the Daniel Kladder tract, having a note put on the book, which stands there, that the tract had no existence; it seems to us so perfectly plain that the commissioners thought they were dealing with two tracts — that they thought they were assessing another tract of land distinct from this one when they were assessing and selling the Daniel Kladder — that we do not see how you could have a doubt upon the question.”]</p> <p>[“We are, however, constrained to say to you that we regard the Philadelphia case reported in 6 P. E. Smith, 13 Wright, as establishing a proper and necessary rule; one that is calculated to insure reasonable accuracy on the assessment and sale of unseated lands for taxes, and to protect all the parties interested against the consequences of loose and careless practice; and as applicable to this case. And we accordingly instruct you that Daniel Kladder, 230 acres, in Erankstown township, does not designate Daniel Kritler, a tract of different quantity, shown to be in another township; and that there is nothing in the evidence which aids the identification ; and, therefore, we say to you, as matter of law, that the defence on this -ground fails, and that your verdict must be for the plaintiff.”] ******</p> <p>The verdict was for the plaintiff in each case.</p> <p>The defendant removed the records to the Supreme Court, and assigned the parts of the charge in brackets for error.</p>

50, to May Term 1871. This was an issue under the Sheriff’s Interpleader Act, ordered September 6th 1870, in which Edward Miller was claimant and plaintiff, and Jonas Garman defendant. B. F.. Miller and W. W. Foster, as partners, kept a hotel known as the “ Yalley House,” in Dauphin county, and were the owners of the furniture and stock of liquors, &c., in it.

11. The accounting officers of the Commonwealth, on the 23d of July 1869, settled an account against The Jones and Nimiek Manufacturing Company, for tax on net earnings for the years ending November 1st 1864,1866 and 1867; the amount found due to the Commonwealth was $685.73.

94. The ease came into the court below'on an appeal by the Union Improvement Company, filed January 31st 18fl, from a settlement against them by the accounting officers of the Commonwealth. The following is the settlement: — “ Eor tax on capital stock, per Act of May 1st 1868, for the years ending first Monday of November 1868, 1869 and 1870, as per report herewith filed. 1868. Dividend, 4J per ct. on $711,550.

<p>Error to the Court of Common Pleas of Lebanon county: No. 5, to May Term 1871.</p> <p>This was an action of assumpsit brought March 27th 1869, by Frederick Garrett against John Schoch, administrator, &c., of Peter Shoch, deceased, for services rendered by the wife of the plaintiff to the decedent in his lifetime.</p> <p>The plaintiff was the husband of a daughter of the decedent; the wife of the decedent died in April 1855; and, about that time the plaintiff and his family, at the request of the decedent, as was alleged, moved into his house. The wife attended to the decedent and nursed him from that time until his death, which occurred in April 1866, he being then about eighty-five years old.</p> <p>For the plaintiff the evidence was that the decedent had been in a bad state of health for a long time, with a very offensive disease, on account of which he required more than ordinary attention. The disease increased as he grew older and he required more attention; that he had been faithfully and carefully attended and nursed by the plaintiff’s wife.</p> <p>Daniel Gese testified that the decedent said that Mrs. Garrett would never be paid for the trouble she had with him.</p> <p>H. Eberly testified that he heard the decedent say in the presence of one of his sons that he would make a will and gi^e a farm to Mrs. Garrett, but she did not want it; that she would never get paid for the trouble she had with him; Mrs. Garrett asked witness what her father had said, and when told, said she did not want a farm, she wanted to be paid for her trouble.</p> <p>Sarah Shultz testified that once, after Mrs. Garrett had rendered some attention to her father, required by the offensiveness of his disease, he said to her, “ I will pay you for this.”</p> <p>Elizabeth Zeller, a daughter of the plaintiff and granddaughter of decedent, testified: that her grandfather, on the day his wife died, asked his daughters to keep house for him; he asked the others before Mrs. Garrett, and said “ whichever one did it should be well paid for it,” and then Mrs. Garrett promised ; the witness was about eleven years old then. About a year before he died he told Mrs. Garrett “ to get some one to do the outside work, that for the few days he had to live she might stay with him.” Mrs. Garrett did hire help. The decedent wanted to give Mrs. Garrett a farm by will; she said “ she did not want more than was right, he should pay her, the rest divided equally; he said she would, never be paid for the trouble she had with him ; the rest never came and looked after him; mother had to do everything.”</p> <p>Sarah Lebo testified: “ I heard him say, if Mrs. Garrett would wait on him well, she should be well satisfied.”</p> <p>The plaintiff proposed to ask witness, if any of the defendant’s children came there or gave him any attention. This for the purpose of showing that Mrs. Garrett bestowed on him all the care he needed. The evidence was objected to and admitted “for the purpose offered, not for any other.”</p> <p>Plaintiff also proposed to prove by witness that the decedent complained that his sons did not come oftener to visit him, and gave him no attention. ’■ This was objected to by the defendant, but received as an admission of the decedent, to have no other effect than if he had said, “none but his daughter gave him any attention.” Several bills of exception were sealed to the admission of these offers.</p> <p>The witness answered that the other children seldom came there, and that the decedent often said that his sons gave Mm no attention.</p> <p>Catharine Matthews, a daughter of the decedent, testified, that her father asked her to keep house for him; she declined, he asked another sister who also declined.</p> <p>The plaintiff called Amanda Pearson, and proposed to put a case hypothetically as near what the evidence made out in substance as practicable, and to ask the opinion of the witness as to what it would be worth per month or week to take care of the person so situated, this witness not having heard the evidence of the other witnesses. This was objected to by defendant’s counsel.</p> <p>The court said: “ We know of no other way of enlightening the jury as to the value of the services in such cases, and therefore, like all other actions of assumpsit for services rendered, an opinion may he given of the value of the services.”</p> <p>The question was allowed to be put, and bill of exceptions was sealed.</p> <p>The witness said she would not do it for $50 a week: and then testified as to the value of such services. Andrew Strickler was called, and it was proposed to ask him what was usually paid for like services to persons in similar cases.</p> <p>The witness answered, “ 1 don’t know what is the ordinary pay for such services; I nursed one man; he was feeble from old ago ; could not help himself; time not so long; much trouble; three months, not quite; had to wash him all over when I physicked him.” The evidence was objected to, and received, because it is conceded there is no custom as to the wages to be paid in such cases in this part of the country; received for what it is worth and a bill of exceptions sealed.'</p> <p>The defendant gave evidence that the plaintiff occupied the Souse and farm for eleven years; during the first six years he followed his trade as a blacksmith and his family were supported from the farm; for the remaining five years he farmed to the shares, and used the products of the farm for his family and stock, before dividing.</p> <p>The defendant called William Zimmerman, who testified: “ My mother was helpless for about a year; Amanda Pearson waited on her.” It was proposed to show by witness that she got but seven dollars per month for her wages, for the purpose of contradicting the witness and also to show what the services were really worth. This was objected to by plaintiff.</p> <p>Court: “ It does not contradict the witness, as she. was not asked a word on the subject, nor did she refer to it in any way. It is no proof of the value of the services as she might not have been half paid.” The evidence was overruled and a bill of exceptions sealed.</p> <p>A large amount of testimony was heard on both sides.</p> <p>The defendant requested the court to charge:—</p> <p>4. That declarations made by the intestate, as testified to by Daniel Geise, that she, Mrs. Garrett, would not be paid for trouble she had with him; by Harrison Eberly, that she would not be paid for the trouble she had with him; by Sarah Shultz, that I will pay you; by Elizabeth Zeller, that my mother will never be paid for trouble she had with him; and by Sarah Lebo, that if she would attend to him well, she should be well paid for it, are not sufficient, taken singly or together to establish an express contract; and that the plaintiff has therefore nothing to rely upon, but an implied contract, and which contract is rebutted and overthrown by the relations subsisting between the parties (the plaintiff being a son-in-law of defendant’s intestate), and the facts as testified to by Harrison Eberly, John Stupp and Emanuel Stoever, showing that the plaintiff lived on farm of said intestate for eight years, and that he and his family together with those employed by him in carrying on said farm, were supported and maintained out of the products and income thereof, and the plaintiff cannot recover. ’</p> <p>5. That even if the declaration made by the intestate, as testified to by Sarah Lebo, that if she, Mrs. Garrett, attended to him well, she should be well paid for it, is sufficient to establish an express contract, it relates to the future alone, and the plaintiff can recover only for services rendered thereafter.</p> <p>The court answered the points as follows :—</p> <p>“ 4. A son-in-law can prima; facie recover for the maintenance of his father-in-law, taking care of and nursing him. But that may be rebutted by showing the circumstances .of his going there and living with his family off the farm. That again may be repelled by the frequent declarations of Peter Schoch, that his daughter, Mrs. Garrett, should be well paid for her services in nursing and taking care of him in sickness.</p> <p>“ 5. The law would be so if it stood on that alone. But as the son-in-law was- not bound to render the services to the deceased ■without compensation; it is a circumstance to be taken in connection with the proof of others that Garrett was not to render the services in consideration of the advantages of living with Schoch and using his farm.”</p> <p>The court further charged :— * * *</p> <p>“ It has been decided in Pennsylvania that where a man goes to live with his son-in-law, the law does not imply that he is to remain there gratuitously, as in the ease of father and son; and by analogy where the son-in-law renders services to the father-in-law, there is no legal implication that’ it is gratuitous; on the contrary, in the absence of any circumstances, it would be presumed that he is to receive compensation. In the present ease the fact that the plaintiff with his whole family moved into the house of Peter Schoch about the year 1855, immediately after the death of Schoch’s wife, and remained there during his whole lifetime, Garrett receiving his support and that of his family mainly from the farm of Mr. Schoch, under a contract to that effect, is relied on to repel the presumption that Garrett was to have compensation for nursing, waiting upon and taking care of the decedent. The jury must judge whether under these circumstances it was understood that Garrett was to be compensated for his trouble with Schoch in addition to the advantages enumerated, or was to perform the labor, or bestow the attention gratuitously, and was to have nothing more than those advantages therefor. If such was the original contract or understanding there can be no compensation, unless there was a new bargain. You will carefully consider all that was said from time to time, as proved by the different witnesses, not merely to establish k contract from that time, but also to rebut any presumption arising from the method of living, and manner of coming together, as the law would imply a contract to pay unless repelled by circumstances. [It appears to be conceded in the argument, and is perhaps satisfactorily proved, that Mr. Schoch invited and urged his daughter and son-in-law to come and live with and keep house for him, the other daughters and sons having declined to come. Was there a contract then made for payment-? The only witness who speaks of it is Elizabeth Zeller, a daughter of the plaintiff, who says that when her grandfather asked her mother to come and keep house for him he said she should he well paid.’ ‘ He asked the other girls first, said whichever one did it should be well paid for it, and then mother promised.’ She states that this was on the day her grandmother died. Can you rely upon this as sufficient evidence of a contract ? You will bear in mind that this lady was then a young girl only about eleven years old, a daughter of the plaintiff. Nothing is said against her general veracity, hut persons of that age have but little judgment, or knowledge of dealings, may readily misunderstand or misremember. Her correctness on this subject is submitted to your careful consideration. It is an important point in the case, as on it the plaintiff relies to show a bargain for payment before he entered on the duty. He also contends that the bargain being so made and carried into full effect on his part by remaining there and keeping house for Schoch during his whole life, it was an entire contract, not completed on part of the plaintiff until the death of the intestate, and therefore the statute of limitation does not bar any part of that claim. Such, we say, is the legal effect of an entire contract. If it is of a character requiring many years to consummate, it is not barred until six years after completion. As if a man should undertake to clear off a large body of land for another under a contract to be paid on completion of the work, and he necessarily spent seven or eight years in its performance, the law would not bar his claim, until six years after it was finished. In like manner if a contract be made to keep house during the lifetime of another, the bargain would not be completed until his death, whilst if compensation was claimed on an implied contract for work and services, all of older date than six years would be barred. The jury must judge whether the .parties meant in this case that the housekeeping should continue during life.’] That you must collect from all of their acts and declarations; leaving out of view what was said as to an original contract, does the evidence of the different witnesses repel the presumption attempted to be raised; that there was to be no other compensation to Garrett than the advantage to himself and family of living on and drawing their subsistence from Schoch’s property. * * * It is very possible that the advantages derived by Mr.</p> <p>Garrett from the use of the farm, the dwelling and the support of his family and laborers, would compensate him to a great extent, if not entirely down to that period; but that and the extent of the services and the value thereof are solely for the jury.” * * *</p> <p>The verdict was for the plaintiff for $3195.83.</p> <p>The defendant removed the case to the Supreme Court and there assigned for error: —</p> <p>1-5. The rulings of the court as to the evidence.</p> <p>6. The part of the charge in brackets.</p> <p>7-8. The answers to the points.</p>

75, to May Term 1871. This was an amicable action, in which the borough of Mifflintown was plaintiff, and George Jacobs defendant.

83, to May Term 1871. This was an action of ejectment, commenced November 2d 1869, by John W. Craig against Frederick L. Brendel, for a tract of five acres of land, &e. The defendant pleaded “not guilty.” On the 14th of November 1870, the death of the plaintiff was suggested, and J. Watson Craig and others, his devisees, substituted. On the trial, January 9th 1871, before Pearson, P. J., the following facts were proved.

102. The First National Bank of Bellefonte, on the 22d of March 1869, brought an action of debt against William A. McManigle and James M. Brown as endorsers of a note drawn by A. F. Alexander, for $500, dated July 9th 1868, and payable in 90 days: the note had been discounted by the plaintiff, who was the holder. On the trial before Woods, P. J., January 5th 1870, the plaintiff gave the note and protest in evidence and rested.

<p>1. The act of incorporation of the Schuylkill Navigation Oo. provides a mode which must be strictly pursued for the redress of all injuries, direct or remote, from constructing dams or other devices authorized by the act: a common-law action will not lie for such injuries. , •</p> <p>2. The company have the right to increase the height of their dams when necessary for improving their navigation.</p> <p>3. A common-law remedy will lie for the abuse of their privileges or for a neglect of their duties.</p> <p>4. A dam of the company was so filled with material brought into it from above, as to impede its navigation; they put strips on the dam which raised the water, and, as plaintiff alleged, caused it to overflow his land. The injury being from the strips, the plaintiff's remedy was only under the charter.</p> <p>5. Where the injury arises from an authorized act necessary to accomplish the purpose of the charter, a common-law action for the injury will not lie, unless it be clearly shown that the injury was superinduced by the gross negligence of the company. Whether such negligence would be a sufficiently proximate cause to ground an action, Quaere?</p> <p>6. If the injury should arise directly from the company negligently permitting the material to accumulate in the dam, the plaintiff would have a cause of action.</p> <p>7. _ The company could not raise the dam so as to injure the land from motives of economy, unless the expense of cleaning it were excessive and unreasonable, when they might raise the dam, paying damages under their charter for the injury. Per Peárson, P. J.</p> <p>8. Schuylkill Nav. Co. v. McDonough, 9 Casey 73, distinguished.</p>

67. This was an action originally brought before a justice of the peace by T. McCandlish & Son against Robert M. Davidson and Elizabeth his wife, for goods sold to the wife, with the purpose of charging her separate estate. The justice having rendered judgment for the plaintiffs, the defendants appealed to the Court of Common Pleas, where the case was tried before Graham, P. J., on the 17 th of January 1871.

8, to May Term 1871.. This was a proceeding by the administrator of Rachel Masden, deceased, against John Wertz, executor and devisee, and Solomon Wertz, devisee of Jacob Wertz, deceased, to recover a legacy under the will of the decedent, proved August 16th 1848.

51. This was an issue devisavit vel non, directed by the Court of Common Pleas under a precept from the register, to try whether a certain paper writing was the will of John Yerkes, deceased. The parties to the issue were Jacob Rudy, guardian of David Yerkes (an illegitimate son of the testator), plaintiff, and Elizabeth Ulrich and Isaac Ulrich, her husband, and Polly Bordner and Isaac Bordner, her husband, the defendants.

<p>1. Ordinarily when partners sell out to a stranger, no notice of dissolution is necessary to one dealing with the purchaser.</p> <p>2. The fact that the purchaser had not been a partner and is doing business for himself, is notice of the dissolution, even to a former dealer with the firm.</p> <p>3. Newcomet was a member of a firm: his son attended to the business for him, he not being at the store, and the son receiving his share of the profits; he bought out his partners and gave the whole to his son, one of the former partners remaining as clerk, and the business being apparently conducted as before. The plaintiff dealt with the son as before, and charged his sales to the firm. The court below charged that the plaintiff was not affected with notice of the change. Held, not to be error.</p> <p>4. Neweomet having failed to inform those dealing at the store of the change, his silence under the circumstances was calculated to mislead, and he was therefore estopped from denying that the dealing was with the firm.</p> <p>5. Before the change, checks had been given in the name of the firm;; afterwards they were in the name of the son. The court charged that this was cogent but not conclusive evidence of notice. Held, to be correct.</p>

84. In the estate of John Biddle, deceased. The decedent died in 1847, having made a will dated June 14th of that year, and proved February 24th 1848, and owning both real and personal estate.

63, to May Term 1871: In the distribution of the estate of Jacob Kreiser, deceased, decreeing to Elizabeth Kreiser, the widow of. the decedent, her share of his estate under the intestate laws instead of the provisions for her in his will.

62, to May Term 1871. This was an action of assumpsit, brought to September Term 1870, by the State Bank, endorsee, against Neal McCoy, on a note for $225, dated March 11th 1870, and payable July 1st 1870, to J. J. Wilhelm & Co., or bearer. The defence was, that the defendant had been fraudulently induced to execute the note when he was so much intoxicated as to be incapable of making a contract.

<p>1. A tram of defendants coming into a city, the engine, tender and one car were detached from the remainder, and run undeqthe charge of the fireman in the engineer’s place, to a water-station belonging to the defendants. At the station, the fireman asked a boy ten years old, standing there, to turn on the water : whilst he was climbing on the tender to put in the hose, the remainder of the train came down with their ordinary force, struck the car attached to the engine; the jar threw the boy under the wheel and he was killed. In an action by the parents for his death, Held, that it not being in the scope of the engineer’s or fireman’s employment to ask any one to come on the engine, the defendants were not liable.</p> <p>2. The boy in climbing on the tender at the request of the fireman, did not come within the protection of the defendants, and they therefore owed no duty to him.</p> <p>3. Assuming that he was an employee of defendants, at the request of the fireman; this relation would destroy the right of action.</p> <p>4. Kay v. Pennsylvania Railroad, 15 P. F. Smith 269, distinguished.</p>

<p>Error to the Court of Common Pleas of Lancaster county: No. 85, to May Term 1871.</p> <p>This was an action of trespass q. c. f., brought August 18th 1868, by Jacob L. Erb against Daniel Gr. Brown and Martin Kline."</p> <p>The defendants pleaded that there was a right in John R. Buch, whose land adjoined the plaintiff’s close, to maintain and repair water-pipes through the plaintiff’s close to convey water on to the said Buch’s land, and they justified as his servants, that they had entered the plaintiff’s close to repair the pipes which were decayed, obstructed, &c.</p> <p>On the 2d of April 1803, Jacob Withers, owning thé locus in quo, granted by deed to John Withers, who owned the land now owned by John It. Buch, the water of a spring on Jacob’s land “ with the free right and privilege to carry and convey the same by pipes and trunks to be laid under ground through the said Jacob Withers’s land, from the said spring into and upon the said John Withers’s land * * * together with free ingress, &c., for the said John Withers, his heirs and assigns, and his and their servants and workmen, for the purpose of laying and repairing the pipes and clearing out the channel,” &c. On the 25th of May 1809, Jacob Withers conveyed to Adam Stock in fee, “ excepting and reserving out of the present grant for John Withers, his heirs and assigns,” the water-right above mentioned.</p> <p>On the same day John Withers conveyed his land to Daniel Royer in fee together with the water-right. Royer, on the 3d of April 1810, conveyed to George Buch in fee together with the right; both in the same terms as in the original grant from- Jacob Withers.</p> <p>On the 2dvof July 1825, Adam Stock devised the Jacob Withers tract to his son George Stock in fee. George Stock, by his will, proved August 28th-1832, directed this land to be sold by his executor after his youngest child came of age. In the fall of 1852, George Buch, who was the executor, sold the land at public sale to Jacob S. Shirk, with notice of the servitude. The deed was made to him on the 2d of April 1853. On the 31st of March 1857, Shirk conveyed to Erb the plaintiff.</p> <p>George Buch, by his will proved August 17th 1863, devised the John Withers tract to his son John R. Buch, under whom the defendants justify, in fee.</p> <p>On the trial, February 22d 1870, before Long, P. J., the respective titles of the parties as above stated were given in evidence..</p> <p>The plaintiff proved the alleged trespass.</p> <p>The defendants gave evidence that in digging, pipes were found between the spring and Buch’s land, the water was running through them. They gave evidence by William Rattew, who was present at the sale by Stock’s executor, that Buch gave written notice that he claimed a right to a spring on Stock’s premises, and to carry the water from the spring in pipes through them, and that witness afterwards told Erb of this notice.</p> <p>A number of other witnesses testified that notice of Buch’s claim to the water-right had been given at the sale.</p> <p>They also gave evidence by a scrivener, that when he was drawing the articles between Shirk and the plaintiff for the sale of his land, the existence of the water-right was discussed between them; that Shirk said it was dead, and should be left out of the articles, and it was left out.</p> <p>The defendants having rested, the plaintiffs in rebuttal offered to prove five different matters, of which it is important to state only the 8d, viz.:—</p> <p>That George Buch (the executor of the will of George Stock), under whom John R. Buch now claims, in the year 1858, when he executed the deed to Jacob S. Shirk (under whom Jacob L. Erb now claims), desired to renew this claim of a water-right, and have it inserted in said deed. And the purchaser, Jacob, S. Shirk, refused to take or pay for this property with such an encumbrance upon it, and that George Buch then and there abandoned and gave up said claim, and agreed that Mr. Shirk should have the property clear of such encumbrance, and it was not inserted in said deed.</p> <p>The court refused the offer and sealed a bill of exceptions.</p> <p>The court directed the jury to find for the defendants; the jury found accordingly.</p> <p>The plaintiff took out a writ of error, and in the Supreme Court assigned six errors; the 3d of which was rejecting that part of the offer above stated.</p>

<p>Appeal from the Orphans’ Court of York county: Of May Term 1871, No. 101.</p> <p>The facts of this case are as follows, viz.: — ■</p> <p>Jacob Kann, Jr., died in October 1866, leaving a widow, and two children, Sarah and William, both of whom were minors. On the 13th of April 1867, C. S. Gerber was appointed guardian, &c., of Sarah, and Wendell Gross guardian, &c., of William. The decedent having died seised of certain real estate, upon the petition of the widow and the guardians, the Orphans’ Court, on the 15th of June 1867, appointed commissioners to make partition. On the 23d of the same month the commissioners reported, that the land could not be parted without prejudice, &c., and valued it at $3826. On the same day the heirs having refused to accept the land at the valuation, an order was issued to the administrator of the decedent to sell the same on the following conditions: One-third of the purchase-money to be paid on the’ 1st of April 1868, one-third on the 1st of April 1869, and the remaining third to be secured on the land for the use of the widow and to be paid at her death to the parties entitled. On the 2d of September 1867, the administrator returned that he had sold the land for $3998.61, and the sale was confirmed. On the 1st of April 1868, the purchaser paid all the purchase-money, except the widow’s share. On the 4th of April, the administrator filed his account showing in his hands a balance of $2023.44; about the same time he paid to Gerber as guardian of Sarah, $1011.72, being the whole amount of the purchase-money of the real estate due to her before the death of the widow. Afterwards on the 27th of August 1868, she married George Lefever, and died on the 8th of November 1868, a minor and without issue. Administration of her estate was granted to her husband, George Lefever. The guardian filed his account on the 9th of December 1868, showing in his hands a balance of $997.98, which was referred to D. J. Williams, Estp, as auditor for distribution.</p> <p>Before the auditor this balance was claimed by Lefever as administrator, and in his own right as his wife’s next of kin, as personal property. The guardian of William Kann, her brother, claimed it as still bearing the character of real estate and as having descended to him, subject to the life interest of his sister’s husband.</p> <p>The auditor in an exhaustive report decided that the fund was personal property and awarded it to Lefever.</p> <p>The guardian of William Kann filed exceptions to the report. On the 27th of September 1870, the Orphans’ Court (Fisher, P. J.) sustained the exceptions and decreed that the fund “ be paid to the said George Lefever, upon his giving bond with surety, to be approved by this court, that the said amount, less the said costs, shall be paid at his death to William Kann, the heir of the said Sarah Lefever, deceased, or to his heirs or legal representatives,</p> <p>should he not survive the said George Lefever, and if such security be not given within thirty days from the date of this decree, the said money shall be paid over to a trustee to be appointed by this court, who shall invest the same under the direction of this court, and pay the interest thereof to the said George Lefever’ during his life, and pay the principal at his death to the said William Kann or his heirs or legal representatives, should he not survive the said George Lefever.”</p> <p>George Lefever, as administrator and in his own right as husband, appealed to the Supreme Court, and assigned the decree for error.</p>

<p>Error to the Court of Common Pleas of Oumberland county: No. 80, to May Term 1871.</p> <p>On the 4th of October 1869, J. B. Plank brought an action of debt against Samuel Diller, executor, &c., of Jacob Burkholder, deceased, on the following note :—</p> <p>“ Carlisle, March 15th 1869.</p> <p>. “ $3500.00. Six months after date I promise to pay to the order of J. B. Plank, at the Carlisle Deposit Bank, thirty-five hundred dollars, for services, and with interest, without defalcation for value received.</p> <p>Jacob Burkholder, [seal.]</p> <p>In addition to the count in the declaration on the note, the common counts were added. The pleas were: “ Non assumpsit ” and “ Non est factum.”</p> <p>Plank was the son-in-law of Jacob Burkholder, who died on the 7th of April 1869, aged about eighty-four, his last illness having been from about February 1st. The defence was that his signature to the note had been obtained by fraud, Burkholder being ignorant of its contents; the defendant also alleged that the services for which the note purported to have been given were of much le'ss value than the amount of the note, and had been paid for in full up to the 1st of April 1869, independently of the note.</p> <p>On the trial, February 16th 1871, before Graham, P. J., the plaintiff called Lewis A. Smith, who testified: “ Am teller of the Carlisle Deposit Bank; am accustomed to examine handwriting of parties. I knew Jacob Burkholder. As a general thing I attended to-his business in bank for him, and am familiar with his handwriting. He kept his account in our bank.” The note being shown, witness said: “ I believe that to be the signature of Jacob Burkholder. The body of the note resembles the handwriting of J. B. Plank ; that is my belief. I believe word ‘ seal ’ to be in the same handwriting as the body of the note. I did not see Burkholder write the note.”</p> <p>The plaintiff called Emma Meixel, his daughter, who having testified as to the sickness of the decedent, its loathsomeness, the attention rendered to the decedent by the plaintiff, his wife and family, &c., said: “ The first that I heard father say was whether he had made any provision in his will for him ; he said not, that he had made his will three years ago, but I will reward you now; I always said I would reward you well for what you done for me. He said, I can’t give you the money. He said, I have some money, but I don’t know how long I may live, and I may need it yet. He said, I will give you my note. He asked father how much he thought he ought to have, and he said, You know what your children said; they wouldn’t take and come here and take our place for a thousand dollars a year; and then father said he would not ask that much, and then grandfather said he always liked persons to make their charge, and if it was too much he would say so, and if not enough he would say so. Father said would $3000 be too much, and he said, No, I’ll give you $4000, for you have done more for me than all the rest. Then father said, You may make the note thirty-five hundred with interest; father said, If you are satisfied, and grandfather said, Yes, he was satisfied. Grandfather said he should get a note and fill it up; father told me to get ink and pen; I got it for him and father filled up the note, and then father read it to him and handed it to him; he then went to his bureau and put on his glasses and read it, and then signed his name to it. Grandfather said father must get a stamp and put on it or it would not be good. He then gave the note to father.”</p> <p>The plaintiff gave evidence by several physicians and others of the condition of'the decedent during his sickness, of the character of his diseases; that the attention bestowed on him by the plaintiff and his family was constant and kind; that their services were so spoken of by the decedent, and that he promised to pay them; also, that the decedent had frequently spoken in kind and affec- ■ tionate terms of the plaintiff, his wife and family; and rested.</p> <p>The defendant gave in evidence a number of similar leases, each for one year, the last being from the 1st of April 1869 to the 1st of April 1870, by which the decedent leased to the plaintiff a farm, the plaintiff delivering to him'one-half the produce raised; he also reserved “ the part of the house on said premises he now occupies, to wit: the two east rooms on the first floor, and the south-east rooms on the second floor, and a free and undisturbed passage from one room to the other, as also in the yard; said Plank to furnish boarding, washing and mending for said Burk-holder, for which said Burkholder is to pay the said Plank three dollars and twenty-five cents for each and every week.” By the leases previously to April 1867, the price of the boarding was fixed at $3 per week.</p> <p>The defendant gave evidence for the purpose of showing that the plaintiff had been paid for his services; also for the purpose of showing what was the character and value of the services; also, that the eyesight of the decedent was bad; that he could not read, could not recognise his acquaintances by sight, but could by their voice; that the services required were not of so unpleasant a kind nor the condition of the health of the decedent such as the plaintiff alleged; also, that the plaintiff and his family were not so attentive to him as they should have been, but neglected him. There was evidence that the plaintiff was indebted to the decedent; that he and his family were much away from him; that the decedent, by declarations which were known to Plank, expressed dissatisfaction with him; that services were performed by others which Plank and his family should have performed, &c.</p> <p>The defendant then offered to prove by Catharine Senseman, “ that during the year 1866, and part of the time for which the plaintiff has given in evidence the declarations of Burkholder as to the treatment of him by the plaintiff and .his family, that Burk-holder complained to her that if he were not treated better he would have to board with somebody else, and that the last year Burkholder lived he complained of Plank, and said if he did not do better he would have to leave.”</p> <p>This was objected to by plaintiff, rejected by the court, and a bill of exceptions sealed.</p> <p>Gr. D. Craighead testified that he had lived very near the decedent, and was well acquainted with him; that he was with him frequently during his last sickness; that his eyesight was bad, and that he was very feeble; he had seen the decedent write his name; that he doubted whether be could have written bis name during bis sickness, as well as the signature to the note in suit; be did not believe the signature to be the decedent’s.</p> <p>The defendant made the following offer of evidence: “ There being evidence given tending to show that the note in suit was not signed by defendant’s testator, and also tending to show that the services claimed for by the plaintiff were not given, the defendant now proposes to prove that prior to and about the time the note purports to have been given, Jacob Burkholder said' he was not well disposed toward the plaintiff, that he said be would not attend to bis business, was running about all the time, that he would never give him anything; that be was not fit to have anything; also, that the plaintiff and his family did not give him what he wanted, and left him alone: this for the purpose of sustaining the evidence that the note was not signed by the testator, as it would be unlikely that with such feelings he would make the note in suit, and to show that be was not in the state of mind the plaintiff alleges him to have been in.”</p> <p>The offer was refused, and a bill of exceptions sealed.</p> <p>Joseph Sword testified that the plaintiff in speaking to him of the note in suit said, that he (plaintiff) “told Mr. Burkholder that he thought they would better have a witness to this note, and Mr. Burkholder said he did not wish any person to know anything about it but be and Plank.”</p> <p>Samuel Layman testified: “ He (plaintiff), said grandpap gave him a note for $3500, and I asked him then if there was any witness, and be said there was not, nobody by when he gave it.” Charles W. Sbeafer testified : “ I asked Plank in particular if be bad a witness to the note, and be said ’there was nobody by, and the old gentleman wanted no one to know it.”</p> <p>Joseph Baker testified: “I asked Plank whether be bad witness to the signature of Burkholder, be said he had not; I told him that would be a trouble in bis way. I asked him was anybody present, or in the room at the time; he said there was no person present; he said he wished there had been some person there. I repeated again it would be a trouble in his way, and be said the old man wanted no one in. This conversation occurred repeatedly, I mean at different times.”</p> <p>Joseph Walter testified that plaintiff said' “ grandpap bad given him a note for $3500, and I asked him if there was witness, and he said, there was no witness by, and then I told him be ought to have witness on the note; and be said, then, that grandpap didn’t want any witness, be said it would make a dispute among the other heirs. Plank told me Mr. Burkholder had paid him up to the 1st of April 1869.”</p> <p>In rebuttal, the plaintiff called a number of witnesses who were acquainted with the handwriting of the decedent, and who testified that in their judgment the signature to the note was genuine.</p> <p>They then called two witnesses, who both testified that they were experts as to handwriting, and offered as follows to each:— “ Look at the signature on this note, and say, as an expert, what is your opinion as to its being simulated or not, or is it or is it not, in your opinion, a natural signature.”</p> <p>The offer was objected to by the defendant, admitted by the court and bills of exception sealed.</p> <p>Both testified that in their judgment the signature was ,not simulated.</p> <p>The plaintiff then proved by the teller of the bank in which the decedent kept his account, that forty-four checks shown to the witness were signed by the decedent, and had passed through the bank.</p> <p>The checks were given in evidence.</p> <p>He also gave evidence that during his last illness the decedent’s mind was clear and his eyesight good.</p> <p>The plaintiff’s 1st point was: If the jury believed that decedent promised the plaintiff that he would reward him if he would take care of him in his old age, “ and this reward was not intended by Mr. Burkholder to be included in his ordinary agreements and transactions with Plank, but to be held in parol, and in suspense, as an inducement for said Plank and his family to take proper care of him, the plaintiff is entitled to recover for such services (beyond ordinary boarding and care) on the money counts, unless these services were included in the note given. If the note was given by Mr. Burkholder to Mr. Plank for such services, knowing what he was doing, and as a compensation for any kindness or service received, either in the nature of a gift, reward or payment, no one else has any right to dispute the adequacy of the services, if Mr. Burkholder chose to consider them adequate.”</p> <p>The court answered: “We answer this in the afiirmative, except that we say to you that if this note was given as a gift by Burkholder to Plank, then Plank cannot recover on this note, nor recover on the money-counts more than the value of the services rendered. But if Burkholder considered himself indebted to his son-in-law for services, kindness and attention to the amount of the note, and gave it in consideration of the debt he considered due from him to Plank, then the plaintiff may reoover the amount of the note,”</p> <p>The defendant’s 2d point was: “ Under the conflicting evidence in this case, it is for the jury to determine whether the seal was on this note at the time it was executed. If it is not the seal of Burkholder the plaintiff cannot recover; but if they believe that it is his seal, and that the note was signed by him, then, since the note expressly states that it was given for services rendered by Plank to Burkholder, if the jury are satisfied from the evidence that no such services were rendered by Plank to Burkholder, but on the contrary that all his services were paid for by Burkholder, up until April 1st 1869, independently of and outside of the said note, plaintiff cannot recover.”</p> <p>The court answered: “ It is for the jury to determine whether the seal was on the note at the time it was executed. If it was not, but was added afterwards, it would avoid the note, and there would be no recovery upon it. But I can remember no evidence in the case that would justify the inference that the seal was added after the note was executed; on the contrary, the evidence is that the word ‘ seal’ is in the same handwriting as the filling up in the body of the note, and I cannot discover any difference in the color of the ink or characters of the handwriting, but this is a question for the jury. In answer to the latter part of this point we say, if no services were rendered when the note was given but what had been paid for at that time, then the plaintiff cannot recover.”</p> <p>His 4th point was: “ Under no circumstances should the verdict of the jury in this case exceed their estimate of the value of the services rendered by Plank to Burkholder’ and remaining unpaid when the note in suit purports to have been given.”</p> <p>The court answered: “ We cannot answer this point as requested. If Burkholder promised his son-in-law and daughter that they should be well paid for their services in caring for and attending to his wants and comfort; and upon his last sickness estimated those services at $3500, and gave his note to Plank for that sum, which was his (Burkholder’s) estimate of the value of the services rendered, and the note was executed with a full knowledge and consciousness of what he was doing, under these circumstances the plaintiff may recover the amount of the note, although it may be for more than the jury would estimate the services worth.”</p> <p>His 5th point was: “ If the jury believe that Burkholder settled with Plank from time to time, as the written agreements between them would indicate, and that he paid him from time to time up to April 1st 1869, as testified by Sarah Wunderich, &c., or if they believe that no value in services has been shown as the consideration of the note in suit, their verdict should be for the defendant, whether they believe the signature to the note to be genuine or otherwise.”</p> <p>The court answered: “ The evidence, we think, satisfactorily shows that the boarding, as stipulated in the written leases of the farm, was paid up to April 1st 1869, and we do not understand that this boarding is now claimed. And if there was no other indebtedness than this at the time the note was given, which was afterwards paid, there would be no consideration for the note. If the evidence satisfies you there was no consideration for the note, there can he no recovery upon it. But if Burkholder considered himself indebted to Plank for services, care and attention to his comforts when sick and unable to attend to himself, for which he promised to pay, and considered that the services were worth, under the circumstances, the amount of the note, and did give the note for the services thus rendered according to his own estimate of their value, then plaintiff may recover upon the note, if he signed it with a knowledge of its import and effect.”</p> <p>The court, after referring to most of the testimony, charged: * * * [“ In addition to this you have the evidence of Mrs. Meixel, the daughter of plaintiff, who says that she was present in the room when the note was signed, and details the conversation that occurred at that time. Her evidence, the defendant’s counsel contend, is not reliable, and ought not to be credited, because it is in conflict with the declarations of her father to Mr. Baker and Mr. Lehman. Mr. Lehman states that in a conversation with Mr. Plank about the note, he asked him if there was any witness, and Plank said there was not, nobody when he, Burkholder, gave it. Mr. Baker states that he asked Plank whether he had a witness to the signature of Burkholder. He said he had not. Witness told him that would be a trouble in his way, and asked him was anybody present or in the room at the time, and Plank said there was no person present. Said he wished there had been some person. Witness repeated it would be a trouble in his way, and Plank replied, the old man wanted no one in. This is certainly in conflict with the evidence of Mrs. Meixel, who said she was in the room when the note was signed, and detailed the conversation between her father and Mr. Burkholder. But plaintiff’s counsel contend that this apparent discrepancy is reconcilable without impugning the truth of Mrs. Meixel or her father. That the first inquiry by Mr. Baker was, have you a witness to the signature of Mr. Burkholder ? to which Plank replied he had not. That he was next asked, was there anybody present in the room at the time ? And the question of inquiry being the proof of the note either by a witness to the note or the presence of a witness at the time it was signed, who could prove its execution, Plank replied there was no person present — meaning there was no person present who would be a witness. The impression being, as plaintiff’s counsel allege, with many not conversant with the rules of evidence, that a child cannot be a witness for its parent. This solution of this apparent contradiction between the evidence of Mrs. Meixel and the declarations of her father, is submitted to you, and you will give it such consideration as you may deem it entitled to.]</p> <p>“ You will then inquire and determine from the evidence whether Jacob Burkholder signed the note in suit. You will have a number of signatures, admitted to be genuine, out with you, and in addition to the evidence on the subject you can compare the signatures which are genuine with the signature to the note in suit, to aid you in determining whether it is genuine or not. If the evidence satisfies you that the signature is genuine and that Jacob Burkholder signed the note knowing its import and effect and that it was for services rendered in nursing and attending to him the last years of his life, the plaintiff would be entitled to recover the amount of the note and interest. [And although you may consider $3500 a large sum for the services rendered, if decedent intended to repay these services with that sum, and gave his son-in-law, Mr. Plank, a note for that amount as a remuneration for the kindness, attention and unpleasant duties it appears from the evidence Mr. and Mrs. Plank were occasionally required to perform, he had a right to contract and agree for the payment of such sum as he considered right and proper, and to give his note to Mr. Plank as evidence of the debt.]</p> <p>“ But should the evidence not satisfy you that the signature to the note is genuine, then there are moneyed counts in the declaration on which the plaintiff claims to recover compensation for his services, over and above his boarding provided for in the several leases. If the signature to the note is not genuine, then you may allow a fair and proper compensation for attendance, trouble and attention required during the sickness of the deceased, taking into consideration the nature and character of the services required. * * *</p> <p>“ As to the genuineness of the note the burden of proof is on the plaintiff. If it does not satisfy you the note is genuine, the plaintiff cannot recover on the note. But if you are satisfied from the evidence, that the note in suit was signed by Burkholder, then a further inquiry arises. The defendant alleges that although the signature may be genuine, it was procured by fraud, deceit or misrepresentation. If the note was signed by Jacob Burkholder, the legal presumption is that it was fairly and honestly obtained, and the party alleging fraud must prove it. * * * If the evidence satisfies you that fraud or deceit was practised on Burk-holder in obtaining the note, there can be no recovery upon it. [On the contrary, if the evidence fails to satisfy you, that the note was procured fraudulently, and if you are. satisfied that Burkholder signed the note for services which he considered worth the amount he promised to pay, then, as we have before said, the plaintiff may recover the amount of the note and interest.] But should you find that there can be no recovery on the note either for want of proof of its genuineness, or because you believe from the evidence that it was fraudulently obtained, then you may find such sum as you may believe to be a fair and proper compensation for services rendered which have not been paid for.”</p> <p>The verdict was for the plaintiff for $3906.</p> <p>The defendant took a writ of error, and assigned errors as follows:—</p> <p>1, 2. Rejecting the defendant’s offers of evidence.</p> <p>3. Admitting witnesses as experts to testify as to the genuineness of the signature to the note.</p> <p>4. The answer to the plaintiff’s point.</p> <p>5. 6, 7. The answers to the defendant’s points.</p> <p>8, 9, 10. The parts of the charge in brackets.</p>

<p>Error to the Court of Common Pleas of Blair county: No. 23, to May Term 1871.</p> <p>This was an action of partition to April Term 1868, brought by Solomon Langham and Catharine his wife against Otho Harlan and a number of the other defendants.</p> <p>A case stated, which exhibited the following facts, was agreed upon and filed in the action:—</p> <p>William Dickey being seised in fee of a tract of 208 acres of land, now in Blair county, died intestate prior to 1837, leaving seven children his heirs at law, of whom Catharine, the wife of Solomon Langham, the plaintiff in this suit, was one. One of the children having been advanced his full share of the estate, the interest of each of the others was one-sixth. Under proceedings in partition in the Orphans’ Court, the above tract of land was on the 30th of August 1837 adjudged to Solomon Lang-ham in right of his wife Catharine. On the 21st of April 1843, the interest of Solomon Langham was sold by the sheriff to Jacob Beard, who afterwards was put into possession of the premises. Subsequently, by sundry conveyances from Beard and those claiming under him,, from April 12th 1844 until June 2d 1861, the title of Beard became vested in the defendants, in different parcels, most of them small lots of a few acres each, some of them being lots in a town called “ Marion,” laid out by George Hite, who had been one of the owners of Beard’s title in part of the land.</p> <p>To March Term 1853, Solomon Langham and wife brought an ejectment against Otho Harlan and others, then in possession, for an undivided sixth part of the 208 acres, of which Dickey had died seised, and recovered a verdict, upon which judgment was entered. An habere facias was issued, under which the sheriff on the 6th of July 1865, put the plaintiffs, Langham and wife, into possession of the one undivided sixth part of the premises.</p> <p>The question submitted to the court was: “ Are the plaintiffs entitled tO/have another partition of said premises in the present suit ? If they are, then judgment for the plaintiffs. If not, then judgment for the defendants.”</p> <p>On the 23d of September 1870, the court entered judgment for the plaintiffs on the case stated.</p> <p>The defendants sued out a writ of error, and assigned for error the entering of judgment for the plaintiffs.</p>

<p>Error to the Court of Common Pleas of Blair county: No. 73, to May Term 1871.</p> <p>On the 7th of February 1856, a judgment, Thomas Farrell for the use of Charles Hughes against Gilbert L. Lloyd’, for $2000, was entered in the Court of Common Pleas of Blair county by virtue of a warrant of attorney. On the 24th of September 1857, the defendant made an affidavit, that on the 1st of July 1854, he had bought from the plaintiff Farrell a tract of land warranted in the name of Abraham Bell for $6000, of which $1000 were paid in hand, and for the balance the defendant gave his bonds; one of them — that upon which the above judgment was entered — being for $2000, payable on the 1st day of July 1855; that on the day of the purchase the plaintiff délivered to the defendant an absolute deed in fee simple for the land, with covenant of warranty; that after the purchase, Catharine Lynch instituted an action of ejectment, in which she recovered an undivided third part of the land; the affidavit further averred that the land had been purchased by Barnabas Farrell by articles of agreement from James Ross and Peter Collins, to whom a portion of the purchase-money had been paid; that Barnabas Farrell died leaving three children, Thomas the plaintiff, Catharine Lynch and Elizabeth McCormick; that after the death of Barnabas, a deed was executed by Ross and Collins to Thomas the plaintiff for the whole tract; that Elizabeth McCormick had died leaving her husband and a minor child by whom the interest of Elizabeth in the tract was claimed, &c. On this affidavit the court on the 26th of August 1858 opened the judgment, and let the defendant into a defence. A trial had October 30th 1862 resulted in a verdict in favor of the plaintiff for $2880. The judgment on this verdict was reversed by the Supreme Court on the 22d of June 1864, and a venire de novo awarded (12 Wright 73). The case was again tried, February 2d 1871, before Taylor, P. J.</p> <p>The plaintiff gave in evidence the record of the judgment and rested.</p> <p>The defendant then gave evidence, viz.: Articles of agreement, dated October 7th 1841, between James Ross and Peter Collins of the one part and Barnabas Farrell of the other part, by which Ross and Collins sold to Farrell the tract of land containing 359 acres and 95 perches for $375, of which $160 were paid on the execution of the articles — $130 to be paid on the 1st of May 1842, and the remainder on the 1st of May 1843: a deed with general warranty to be made to Farrell upon his making the second payment.</p> <p>Barnabas Farrell died October 24th 1841, leaving three, childdren, as set out in the defendant’s affidavit.</p> <p>On the 9th of January 1843, Ross and Collins by deed with general warranty, acknowledging the payment of the purchase-money, $375, by Thomas Farrell, conveyed the land to Thomas Farrell in fee.</p> <p>On the — day of May 1854, Farrell the plaintiff, by articles, sold the land to Lloyd the defendant for $6000, of which $1000 were to be paid on the 1st of July 1854, when a deed was to be delivered to Lloyd, — $2000 on the 1st of July 1855; $2000 on the 1st of July 1856, and $1000 on the 1st of July 1857, these payments to be secured by bond and mortgage.</p> <p>On the 1st of July, Thomas Farrell conveyed the land to Lloyd in fee by deed with special warranty. On the 6th of March 1857, judgments were entered on the bonds for the other two payments of $2000 and $1000 respectively.</p> <p>The defendant read the deposition of Ross, in which he testified that shortly after Barnabas Farrell’s death and after the second payment for the land was due, he and Collins went to see about the payment, they saw Thomas. Ross asked him how he expected to get the deed, as they were bound to make it to his father, and he had left a widow and two daughters. Thomas gave a good many reasons why he should have the deed: one was that it was his money that had paid for the land; Ross was unwilling without a release from the widow and daughters. Collins insisted that the deed should be made. They finally agreed, upon Thomas entering into an agreement in the penalty of $500, to procure releases from his mother and sisters, to make the deed to him. Thomas gave his note to Ross for $75, which he afterwards paid.</p> <p>The defendant then gave in evidence the records of two actions of ejectment against Lloyd, one by Lynch and wife to April Term ■'1855, and the other by Rosanna McCormick to July Term 1856, each for an undivided third of the land; also conveyance by Michael McCormick, May 21st 1859, of his interest as surviving husband of Elizabeth, late Farrell, to Lloyd, and a record of the Orphans’ Court showing the sale of Rosanna’s interest to Lloyd, confirmed January 23d 1860. The defendant then rested.</p> <p>For the plaintiff, William Lloyd testified: “ I was here when this article of agreement was made. They had contracted prior to the date of the article of agreement, about the purchase of this tract of land. They had conversations about it, and contracted for it. On the day it was executed, Gilbert Lloyd came out from Hollidaysburg with the article prepared. He brought it into our office prepared. Farrell was present before the execution of the article, and refused to sign it, alleging that it was not a conveyance of the tract, not in accordance with the agreement. Gilbert L. Lloyd said that the understanding was that Lloyd was to take the land — the Farrell title — at his own risk.. They talked the matter over and both agreed to this. It was executed with that distinct understanding, Farrell all the time refusing to sign it. I said it was a distipct understanding of the parties, and not mine, that Lloyd was to take it at his own risk. I had told Farrell not to sell unless he got that agreement. Other parties wanted to buy the land at the same time, and I told Farrell not to sell the land except at the purchaser’s risk, because there was a good deal of litigation about lands on the mountain, and they had been comparatively worthless before that, and that there was no use in him selling the tract of coal-land at that price, that persons were wanting it that would guaranty the title. The Portage and Central Railroads were then making and opening up this country and making land valuable. This was the understanding of the parties at the time they signed the deed. The same understanding was had in regard' to the title at the signing of the deed as at the signing of the article of agreement; that is at the execution of the deed. I was there then and witnessed the deed. This understanding was the understanding of the parties, Gilbert Lloyd and Thomas Farrell. Farrell refused to sign on any other conditions. * * * Thomas said nothing about his sisters having a claim there, or anybody having a claim there.”</p> <p>The plaintiff read also the deposition of Peter Collins, in which he' said:—</p> <p>“ James Ross and I owned a tract of land warranted in the name of Abraham Bell. Some time in October 1841, Barnabas Farrell came to see me about purchasing land. He stated to me for his son Thomas. I went with him and showed him the land; then we went back to Ebensburg, where he agreed to purchase the said Abraham Bell tract for the sum of $375. James Ross wrote the article. He paid $168 at the making of the agreement. Sometime afterwards Thomas Farrell, only son of the said Barnabas Farrell, now deceased, came and gave his judgment-note for the balance of the purchase-money, and we made the deed to him for the land. He afterwards paid me my half of the judgment-note, and I believe paid the other half also. The deed was made to Thomas Farrell, the son, because his father told me when bargaining for it, that he bought it for the son. This he said on the day of examining the land before the agreement was signed. There was not any one present when he said this. * * * He said he was buying it for his son.” * * *</p> <p>The plaintiff offered in evidence the deposition of Robert Lemon, for the purpose of proving the declarations of Lloyd that he had made $30,000 or $40,000 by his purchase of the land. This was objected to by the defendant, rejected by the court, and a bill of exceptions sealed.</p> <p>Thomas Farrell, Sr., a brother of Barnabas Farrell, testified: “ Thomas was born in Ireland in 1819. I sent for him and he came straight to where I lived. He worked under me for Hr. Shoenberger and earned over $100, and sent for his father and mother and all the rest of them, and paid their passage over. He was working on there after the old man came, at the same place, and saved money and provided a house and furniture for them, and a way of living. He was saving of his money and laid it out on them. The old man had no means when he came. After the old man’s death, Thomas supported the family.”</p> <p>Jonathan Zerbe testified: “ I was book-keeper for Mr. Spang in 1839 at Canoe Furnace. At that time Thomas Farrell was working in the mine-bank for Spang. He worked there from sometime in June 1839, and continued on working there until I left in March 1841. The books show that he worked there sometime after. This is the account I kept there. His father commenced work there sometime in November 1839.” Witness then gave a statement from the books of the account of Thomas up to April 1st 1841, and proceeded: “ There are two drafts charged here 6th of April 1841: ‘ Thomas Farrell to Bills Payable for note of hand payable 1st of October 1841, $156.’ Also another note payable 1st of April 1842, for $156. . The accounts from the time old Mr. Farrell came there were kept together as the account of Thomas Farrell. The time the notes were given, the amount derived from Thomas’s labor would be $340.80. The old man’s I have not ascertained. I presume he drew fully to the amount of his own earnings. I have made an examination with that purpose in view. The old man was brought there by Thomas Farrell, I think from "Woodberry Furnace. I am not positive. I don’t know anything about Thomas bringing the old man from Ireland. Those notes drawn in April closed the account. The old man had his family there.”</p> <p>William Yon testified: “ Lived with father on farm of B. Burns in 1841, in Canoe Valley, two miles this side of Williamsburg. Nnew Thomas Farrell and his father at that time. Went there one morning to haul wood for them, and as I drove up to the house the old man Farrell was before the door in the yard and a man named Burns. I walked into the yard and Mr. Farrell said that he was going to the mountain to buy a piece of land. He said that Thomas had got a little money, and said he wanted to put it into land. He said he was going to buy a tract adjoining Burgoon’s lands on the mountain. I told him I knew near about where Burgoon’s lands were; that I had hauled coal from there. While we were talking Thomas came out of the house and handed over some money to his father, and I walked out towards my team, and afterwards Thomas came out and he and I went on and hauled the wood. I was at the funeral of Barnabas Farrell. Think that was in 1841 or 1842. Some four or five months before that I heard this conversation. It was right in front of the house. I went there with my team to haul wood, and into the yard where the old man and Burns were standing before the door. Took notice that he had his good clothes on, and then he told me that he was going up to the mountain to buy a tract of land.”</p> <p>The court charged: * * *</p> <p>“ The first inquiry is: Is there a proven failure of the title ? And, secondly, if there is, did Mr. Lloyd agree to take upon himself the risk of the title, including such defect, so as still to be liable for the purchase-money ?</p> <p>“ I. Is there a proven failure of the title ? It is not necessary here that we should dwell at length upon the evidence involved in this part of the case. [The papers in evidence show that Thomas Farrell held the title for himself, and in trust, as to two-thirds of it, for his sisters, Catharine Lynch and Elizabeth McCormick; and this in view of, and notwithstanding all the evidence offered for the purpose of showing that the land was bought by Barnabas Farrell, their father, in his lifetime, for Thomas;] and we are asked here to instruct you that there is no evidence on the subject upon which the case should be submitted to you. * * *</p> <p>“ We have the testimony of Mr. Zerbe as to both of them working at Spang’s Furnace; and the testimony of Mr. Farrell as to the time Thomas and his father came to this country from Ireland, and tbe circumstances under which they came. It would seem from this that Thomas had first gone to Canoe Furnace (Spang’s) sometime in 1839, and that shortly afterwards the old man came; that he lived with the old man, the family living together, and that both worked at the furnace. It seems that their accounts were kept together; first opened in the name of Thomas, because he was first there, and so kept after the old man came. A balance in their favor seemed to have been accumulating, until, about the time they quit, two notes, as the books show, were given to the old man, amounting to about $300. It would seem, probable that these notes were for the surplus earnings of both. The notes were given to the old man. [According to the testimony of old Mr. Farrell, Thomas was born sometime in 1819. He could not fix the time of the year. Consequently, what yas earned by Thomas at the furnace previous to 1841, while he was under age, and living with his father, according to the general rule of law, would belong to his father. It seems that, on the settlement, the notes for the balance due on their account, were given to his father; and the money was due from the furnace on the notes to him, though earned principally, it is probable, by Thomas; and this is the money, it is likely, which the old man referred to at the time of the purchase,.as coming to him at Spang’s furnace. He made the purchase in his own name.</p> <p>“This evidence was all before us on the trial of the ejectment, and the former trial of this case; and upon it (without the testimony of Ton) we are constrained to say that it was not sufficient proof of the payment of Thomas’s money in the purchase to establish a resulting trust in his favor, and that it was not such evidence as we should submit to the jury. Does the testimony of William Ton alter this aspect of the case? On looking at it carefully, we say that we do not think it does. Taking it all as true, as the witness states it, it is a mere statement made by Barnabas Farrell that he was going to the mountain to buy land; and that Thomas had money that he wanted to put into land. There was no particular or exact specification of what land, or of any person he was going to deal with. * * * And it seems to us clear that the case is not materially changed by this evidence from what it was before. Taking it all together, as we have it now, and judging of it by the settled rules fixing the amount and character of evidence which must exist in order to warrant a chancellor to infer a resulting trust, we say that the case is not materially altered; and that it stands in this respect where it stood before, when we instructed the jury that the papers in evidence showed that Thomas Farrell held the title, as to two-thirds, in trust for his sisters, Catharine and Elizabeth; and this, notwithstanding all the evidence (including the evidence of William Yon) offered for the purpose of showing that the land was bought by Barnabas Farrell, their father, in his lifetime, for Thomas or with Thomas’s money. Our former ruling was affirmed; and you are instructed now, as the former jury was instructed, that there is no evidence upon this subject upon which the case should be submitted to you.</p> <p>“ The conclusion is, that there is a proven failure of the title conveyed to' the extent of the undivided two-thirds with respect to which Thomas is shown by the evidence to have held the title as a trustee for his sisters; and the effect must be to relieve the defendant to that extent, unless he is shown to have taken upon himself the risk.] * * *</p> <p>“ Did Mr. Lloyd agree to take upon himself all risk of the title, and does the evidence plainly show it, without any fraud being practised upon him ? ,</p> <p>“II. This is the inquiry presented on the former trial, and this is the question upon which the case turns now. It turned before on the testimony of one witness — Wm. M. Lloyd; and it is here now before us on the testimony of the same witness, with no additional evidence, and the only difference, in this respect, being the testimony of that witness then, and his testimony now. Upon the testimony of this witness we submitted the question to the jury on the former trial, whether Gilbert L. Lloyd did take upon himself all risk of the title, and whether that testimony plainly showed that he did; * * * and, for this, the Supreme Court reversed the judgment on the verdict, thus ruling that this court should have rejected the evidence, or, having admitted it, should have withdrawn it from the jury. * * * [In most respects, his testimony is more full and explicit now than it was then, and the difference between the two statements would answer some of the criticisms of the ruling Justice Strong, in the opinion of the Supreme Court; but, upon examining it carefully, we cannot see that it is materially changed, as to the point upon which the cause was reversed. It will be noted that the reversal was because the evidence went to prove another agreement going to contradict and change entirely the agreement of the parties at the time, without any allegation of mistake or fraud; and, secondly, and more especially, because there was a concealment by Thomas Farrell of the relation sustained by him to his sisters, or of the fact that he held the title for himself and in trust for his sisters; that he was really and only the owner of the one-third, while he undertook to sell the whole land. * * * Mr. Lloyd says there was not a word said about that subject; and it was upon this ground mainly, that it was ruled and held by the Supreme Court that the proof of that agreement by Mr. Lloyd should not have been submitted to the jury, and for that reason mainly the judgment was reversed; and the case is the same now, upon that vital point, that it was then. * * * The question would still be, whether this defect in the title was plainly included in this alleged agreement. But we cannot put any other construction upon the ruling of the Supreme Court, which it is our duty to obey and follow, upon this point, than that which settles it. And we, therefore, instruct you upon the whole case, that the defendant is entitled to a general verdict.] * * *</p> <p>The verdict was for the defendant.</p> <p>The plaintiff having removed the record to the Supreme Court, there assigned for error — the rejection of Lemon’s deposition and the parts of the charge in brackets.</p>

<p>Error to the Court of Common Pleas of Cumberland county: No. 86, to May Term 1871.</p> <p>This was an action of assumpsit, brought August 12th 1865, by Henry L. Burkholder against J. W. Patton and J. A. Stuart, administrators, &c., of William M. Beetem, deceased. The declaration was in the common counts.</p> <p>The cause was tried, November 9th 1869, and a verdict rendered for the defendants. The record was removed to the Supreme Court, where the judgment was reversed, and a venire facias de novo awarded. The facts are found at large in the report of the case (15 P. F. Smith 496).</p> <p>The cause was again tried, January 11th 1871, before Graham, P. J.</p> <p>Beetem, the decedent, who died July 26th 1865, was the cashier of the Carlisle Deposit Bank at the time of his death and for a considerable time previously to August 1864, when he became the owner of 1000 shares of stock in the Glenville Coal Company, for which he paid $40 a share. The evidence was that in January 1865 he sold to the plaintiff 60 shares of this stock at $50 per share, and that the plaintiff paid him the purchase-money, $3000, on the 4th of February. The stock having depreciated, the plaintiff brought this suit in rescission of the contract, alleging that Beetem had practised fraud upon him in selling him stock which Beetem knew was of little value, and also because the contract was illegal, as being in violation of the Act of April 16th 1870, § 10, Pamph. L. 481, Purd. 90, pi. 25, which forbids the cashier of a bank from engaging in the purchase and sale of stocks under a penalty of $500. He further claimed that he had the right to rescind, on the ground that Beetem was his agent to purchase stock, and had sold his own stock to plaintiff above its value, the plaintiff not knowing that it was his.</p> <p>The evidence was that shortly before the sale to the plaintiff, Beetem transferred all his stock to a firm of brokers in Boston ; but that they had no interest in the stock, and that the transfer of the 60 shares was made by these brokers to the plaintiff.</p> <p>There was evidence that shortly before this suit was brought, the stock was worth $20 per share if then forced on the market, but that in the opinion of the broker consulted in Philadelphia, it was not then advisable to sell, as he thought for reasons which he gave, the price would advance.</p> <p>There was evidence on both sides to sustain the positions of the parties respectively.</p> <p>The plaintiff’s 2d and 3d points with their answers were:—</p> <p>2. “ If without even intending fraud, Beetem acted as agent in making an investment of $3000 for Burkholder, and in the capacity of agent sold to Burkholder his own Glenville stock, Burk-holder not knowing that he, Beetem, was selling him, Burkholder, his own stock, but merely investing the money as his agent, Burk-holder, may, on discovering the stock to be Beetem’s, refuse to be bound by such a purchase and recover back the $3000 and interest, from the 4th of February 1865, and when the stock was of little or no value, and this without a previous transfer of the stock to Beetem or his administrators.”</p> <p>Answer : “ Under the facts stated in this point Burkholder may recover back the money paid to Beetem without tendering a re-transfer of the stock, if it was of no value. If it was of value then an offer to retransfer would be necessary, but this would not, under the circumstance of this case, be required before suit brought. A retransfer was tendered at the former trial, and has been re-tendered at the present trial, so that the want of retender of the stock will not prevent a recovery in this case, as we have stated in our general charge.”</p> <p>3. “ Beetem, while cashier of the ‘ Carlisle Deposit Bank,’ had no right to deal and speculate in stocks, to buy and sell them; if he did so the party buying from him, could, upon discovering that the stock belonged to Beetem, and was worthless, repudiate the transaction, and recover back the money paid by him. In order to make the contract binding upon the purchaser of stocks from Beetem it would require the defendants to show that the purchaser knew Beetem was so engaged in buying and selling stocks, and that the stock purchased was Beetem’s. There is no evidence in this case to show that Burkholder knew that Beetem was violating the law, and was engaged in buying and selling stocks and that the sale of the Grlenville stock to him was one of his transactions in this unlawful business, therefore Burkholder has a right to repudiate the sale to him and recover the $3000 paid Beetem, with interest from February 4th 1865, and this without a previous retransfer of the stock when of little or no value.”</p> <p>Answer: “ The first part of this point is answered in the affirmative. There is no evidence on the face of this transaction, or other evidence, that we recollect, that Burkholder knew he was purchasing from Beetem, and if he did not know, he would not be a party to the illegal transaction, or affected by it, and would have a right to rescind the contract, and recover the money paid, and the fact that a retransfer was not tendered before suit brought will not prevent a recovery.”</p> <p>The defendants’ 1st, 2d and 3d points with their answers were:—</p> <p>1. “ The plaintiff, having neglected to rescind the contract for the sale and purchase of Grlenville Coal Company stock by re-transferring or tendering the transfer of the same to defendants’ intestate in his lifetime, or to the defendants prior to the bringing of this suit, or at a time when it was in the plaintiff’s power to place the defendants in the position occupied at the time of the sale, he cannot recover in this action, even though the contract may have been illegal, or the purchase induced by fraudulent representations.”</p> <p>Answer: “Under the circumstances of this case we decline answering this point in the affirmative, for the reasons stated in our general charge.”</p> <p>2. “ If the jury believe that William M. Beetem, while cashier of the Carlisle Deposit Bank, engaged in the purchase and sale of stocks contrary to the law, any contract for the sale of stocks made by him would be illegal; but where such a contract has been executed by a delivery of the stock, and payment of the purchase-money, as in this case, Mr. Burkholder, the plaintiff, in seeking to recover back the purchase-money paid by him for the Grlenville Coal Company stock, thereby bases his cause of action upon an illegal contract to which he was a party. Until he has, therefore, affirmatively shown to the satisfaction of the jury that Mr. Beetem concealed from him the ownership of the stock, he is without standing in court, and every intendment and presumption of fact and law must be taken against him.”</p> <p>Answer: “ If Mr. Burkholder knew Beetem was dealing in stocks at the time he purchased, then he cannot recover. But he is not required to show affirmatively that Beetem concealed from him (Burkholder) the ownership of the stock. This would be presuming a man guilty until he proved his innocence.”</p> <p>3. “ The Act of 1850 relative to cashiers, being a public general statute, of which all are bound to take notice, the burden is therefore cast upon Mr. Burkholder, the plaintiff in this case, of showing, that at the time of his purchase of the Glenville stock, he was ignorant that it belonged to Mr. Beetem, and Mr. Beetem concealed his ownership of the stock from him, and if the jury believe that there is no evidence of what really tranépired at the time of the sale of said stock, the presumption is one not to be got over or disregarded by them that Burkholder knew whose stock he was buying, and their verdict must therefore be for the defendants.” Answer: “We cannot answer this as requested.”</p> <p>The defendants, in their 6th point, asked the court to charge that they were entitled to the verdict; this was refused. '</p> <p>In his general charge, Judge Graham said :—</p> <p>* * * “ That Mr. Beetem was engaged in buying and selling stock, and that to a very considerable amount, appears to be very clearly proved by Mr. Beetem’s correspondence with his bankers and brokers, and we do not understand that this is controverted. We have no evidence of what occurred between the parties at the time of purchase and sale. No one appears to have been present, and this question is submitted to you whether Burkholder at the time he purchased knew the stock was Beetem’s, or considered that he was purchasing from Beetem, and whether he knew that Beetem was dealing in stocks at the time.” * * *</p> <p>“ The defendants insist that the plaintiff cannot recover in this case because a re-assignment was not tendered before suit brought. The plaintiff tendered a re-assignment at the former trial, and also at the present trial, and under the circumstances of this case, I do not consider the fact of a re-assignment before suit brought, essential to enable the plaintiff to recover.” * * *</p> <p>The verdict was for the plaintiff for $4069.50.</p> <p>The defendants removed the case to the Supreme Court.</p> <p>They made there the following assignments of error: — ■</p> <p>1, 2. The answers to the plaintiff’s 2d and 3d points.</p> <p>3. The answer to the defendants’ 1st point.</p> <p>4, 5. The answers to the defendants’ 2d and 3d points.</p> <p>6. The answer to the defendants’ 6th point.</p> <p>7, 8. The answers to the parts of the charge above quoted.</p>

<p>Error to the Court of Common Pleas of York county: No. 87, to May Term 1871.</p> <p>This was an action of assumpsit brought May 4th 1869, by Jacob Spangler against Joshua E. Foust and Emanuel Sheffer on this promissory note:—</p> <p>“ $800. Glen Rock, January 26th, 1869.</p> <p>Three months after date we promise to pay to the order of Jacob Spangler, Esquire (cooper), eight hundred dollars, value received.</p> <p>Joshua E. Foust,</p> <p>E. Sheerer.”</p> <p>The note was given under these circumstances. On the 15th of January 1869, judgments amounting in all to about $2400 were recovered by plaintiffs named Bender against Foust; three writs of fi. fa. were on the same day issued on these judgments, and on the 16th personal property of the value of $8000 belonging to Foust levied on. On the same day judgment was entered in favor of Hyatt & Clark against Foust, for $890, an execution issued on the 18th to April term 1869, and on that day a levy made on Foust’s personal property subject to the Bender levies. Foust desired Spangler to buy this judgment; he consented to do so if he was made safe; and the note in suit, which would fall due on the return day of the Hyatt & Clark’s fi. fa, — Sheffer being the surety for Foust, — was made and delivered to Spangler as collateral security for the Hyatt & Clark judgment; and on the 27th of January that judgment and the execution were marked to the use of Spangler. On the 28th of January the Bender executions were stayed. To the Hyatt & Clark writ the sheriff returned :—</p> <p>“January 30th 1869. Jacob Spangler, * * * informed the sheriff that he had fixed his matters now, and considered himself safe, and the sheriff should do nothing in it; * * * and nothing further was done on this writ.”</p> <p>In March a considerable quantity of Eoust’s property, which had been levied on, was delivered to other creditors, without execution in payment of their claims. In the same month an execution was issued on a judgment of Jacob Grove against Foust, and the remainder of the personal property, which had been under levy on the Hyatt & Clark execution sold, and the proceeds were paid into court and afterwards awarded to Grove’s execution.</p> <p>There was some evidence tending to show that the understanding between Sheffer and Spangler, at the execution of the note, was, that the execution upon the Hyatt & Clark judgment should not be pressed, but that it should be stayed until the note fell due. There was evidence also for the purpose of contradicting the sheriff’s return that Spangler had directed a stay on the Hyatt & Clark execution.</p> <p>The defendant gave in evidence also an ex parte affidavit made by Spangler in relation to the Hyatt & Clark execution, before this suit, and filed with that execution, in which he denied the truth of the sheriff’s return, but .made no averment of an understanding with Sheffer for a stay.</p> <p>There was a large amount of evidence bearing upon the ques- ’ tions raised in the case; the foregoing will sufficiently present the questions.</p> <p>The points of the parties with their answers are as follows:— Plaintiff’s: 1. “ If the note in suit was given by the defendants to the plaintiff and accepted by him as collateral security for the Hyatt & Clark judgment, and an execution and levy were pending thereon at the time, the presumption is that it was an engagement for a stay of execution till the time of payment of the note.” Answer: “We cannot answer this point in the affirmative. It may be a circumstance amongst others tending to prove that there was an engagement for a stay of execution, but it does not constitute an absolute presumption of that fact. That there was such an engagement must be proved by evidence positive or circumstantial, but in either case it must be strong enough to enable the jury to say that such an engagement was made. Mere expectation and belief will not be sufficient.”</p> <p>2. “ If the defendant, Sheffer, became surety for the defendant, Foust, in the note in suit, and said note was taken by the plaintiff as collateral security on the Hyatt & Clark judgment, Sheffer was a mere volunteer, and stands in the place of a surety not entitled to indemnity, and his liability is absolute, notwithstanding the security arising by means of the levy made on said judgment may have been lost.”</p> <p>Answer: “We cannot answer this point in the affirmative.”</p> <p>8. “ If there was a levy made on the execution issued on the Hyatt & Clark judgment, of sufficient property of the defendant to satisfy the judgment, and the plaintiff as holder of said judgment had thus the means of satisfaction in his hands, and the defendant, Sheffer, interposed 'in behalf of the defendant, Foust, and gave the note in suit as collateral security, any release of the property levied was occasioned by the defendant, _Sheffer’s, own act, which was to the detriment and not to the benefit of the plaintiff, and Sheffer cannot now set up the plaintiff’s failure to collect the money on Hyatt & Clark’s execution against the right of the plaintiff to recover in this suit.”</p> <p>Answer : “ We cannot answer this point in the affirmative, unless there was an agreement on the part of Sheffer that the giving of the note was to have the effect of a stay of execution, or, in other words, that it was given as the consideration of a stay of execution.”</p> <p>4. “ It was the duty of the defendant, Sheffer, under the circumstances of this case, if he desired to be relieved from his collateral 'undertaking, to notify Spangler as holder of the Hyatt & Clark judgment, not to relinquish the lien of the levy on the defendant’s property, but to push the same and collect the money.”</p> <p>Answer: “We cannot answer this point in the affirmative.”</p> <p>Defendant’s: 1. “ If the jury believe that Emanuel Sheffer is ' the surety in the note in suit, and that it was given as collateral or additional security for the judgment and execution in favor of Hyatt & Clark against Foust to Jacob Spangler, at the time of his taking an assignment thereof, and that said execution was levied upon the personal property of the defendant therein, sufficient to satisfy the same, such levy is a satisfaction of the said judgment and execution as respects Emanuel Sheffer, and the plaintiff cannot recover in this suit.”</p> <p>4. “ The return of the sheriff upon the execution is conclusive against Spangler, that the writ was stayed, and this cannot be controverted.”</p> <p>Both these points were affirmed.</p> <p>In the general charge, the court (Fisher, P. J.), said :</p> <p>* * * “A fourth question is, did Sheffer agree, that in consideration of Spangler’s staying the execution, the note in. suit should be given, or that the consideration of the note was that the execution should be stayed. In deciding this case, the jury will take into consideration all the evidence, and all the facts and circumstances of the case. I say the facts, for the jury cannot presume an agreement or contract to stay the execution from the mere expression by Sheffer of a desire, or a hope, or an expectation that Spangler would stay the execution, if he gave the note as a surety and as collateral security.”</p> <p>The jury having been out some time, came into court and said they had not agreed upon a verdict. The court said to the jury that “ the court thought that this case was one. about which they ought to have no difficulty. It was the duty of Mr. Spangler to satisfy the jury that the contract or agreement to stay the execution was made. Sheffer and Foust swore positively that no such agreement was made, and the affidavit of Spangler does not state that there was such an agreement. There are circumstances in the case that may tend to another conclusion which we do not think proper to take from the jury.”</p> <p>The verdict was for the defendants.</p> <p>The plaintiff took out a writ of error and assigned for error the answers to the points, and the foregoing portions of the charge.</p>

<p>Error to the Court of Common Pleas of Lancaster county: No. 93, to May Term 1871.</p> <p>This was an action of debt by The Commonwealth to the use of the Mayor, &c., of the City of Lancaster, against Charles R. Frailey, John P. Weise and William Carpenter, on Frailey’s official bond as an alderman of the city of Lancaster, the other defendants being his sureties.</p> <p>The writ issued March 15th 1869.</p> <p>The bond was dated February 24th 1865, in the sum of $1000, conditioned in accordance with the 6th section of the Act of June 21st 1839 (Pamph. L. 374, Purd. 591, pi. 15), that Frailey should “ faithfully apply all moneys that came into his hands as an officer.”</p> <p>By an ordinance of the city of Lancaster, the mayor of the city is required yearly to place a list of the unpaid water-rents in the hands of an alderman for collection. The mayor, in accordance with this ordinance, placed in Frailey’s hands for collection lists of the unpaid water-rents for the years 1865,1866,1867 and 1868. Of the rents collected by Frailey he failed to pay over the amount of $1303.20.</p> <p>This was the breach of the bond on which the plaintiff declared. The defendants pleaded payment with leave, &c. They also filed special pleas, that thirty days’ notice of the intention to bring the suit had not been given, and that suit had not been' brought within six months^of the breach, as required by the Act of March 21st 1772, §§ 1-7 (1 Sm. L. 864, Purd. 607, pi. 115), viz.</p> <p>“ Whereas, justices of the peace may be discouraged in the execution of their office by vexatious actions brought against them, for or by reason of small and involuntary errors in their proceedings; and whereas, it is necessary that they should be rendered safe in the execution of the said office and trust; and whereas, it is also necessary that the subject should be protected from all wilful and oppressive abuse of the several laws committed to the care and execution of the said justices of the peace: Be it enacted, That no writ shall be sued out against, nor any copy of any process at the suit of a subject, shall be served on any justice of the peace for anything done by him in the execution of his office, until notice in writing of such intended writ or process shall have been delivered to him, or left at the usual place of his abode by the party, or his attorney or agent, who intends to sue or cause the same to be sued out or served at least thirty days before the suing out or serving the same; in which notice shall be clearly and explicitly contained the cause of action, which the said party hath or claimeth to have against such justice of the peace. * * *</p> <p>“ Provided, That no action shall be brought against any justice of the peace for anything done in the execution of his office, * * * unless commenced within six months after the act committed.”</p> <p>The cause was tried November 29th 1870, before Hayes, J.</p> <p>The plaintiff having closed with the foregoing facts in evidence, the defendants moved the court to direct a nonsuit, which was ordered, and a rule granted to show cause why the nonsuit should not be stricken off.</p> <p>After argument, the rule was, on the 14th of January 1871, discharged, Judge Hayes saying:—</p> <p>“ At the trial it appeared to us that Wise et al. v. Wills, 2 Rawle 208, governed this case, and wp felt ourselves obliged by the authority to order the nonsuit. Though the Supreme Court was divided, the opinion of the court was very decisive, and it has stood unquestioned for forty years. We still think it rules this case.”</p> <p>Entering the judgment of nonsuit was assigned for error on the removal of the record to the Supreme Court by the plaintiff.</p>

97, to May Term 1871, by George Heckert, in the matter of his estate assigned for the benefit of creditors to James B. Lane. The assignment under which these proceedings arose was made May 11th 1840, and was of all the estate, real and personal, of the assignor.

96, to May Term 1871, distributing the estate of Henry Hess, deceased, in the hands of John B. Herr and Daniel Herr, administrators; the balance being $20,090, which was referred to S. P. Eby, Esq., as auditor to report distribution. His report exhibited the following facts:— Henry Hess, the decedent, and Christian Lintner became co-sureties in a number of bonds and notes amounting in the whole to $20,661.12, for Samuel Hess.

18, to October and November Term 1870. This was an action of assumpsit, brought January 13th 1869, by J. G. Butler, Jr., against John Letzkus.

<p>1. The title of land being in the wife, an exchange was agreed to be made with W.; he and the husband (with the wife) made deeds of bargain and sale of the same date and for the same amount of consideration, to each other, the wife not acknowledging the deed. After the death of the husband and wife, the heirs of the wife recovered her land from D., the grantee of W. Held, that the devisees of D. could not, on the ground of failure of title in the land conveyed to W., recover the land conveyed by him.</p> <p>2. In a technical exchange of lands, the law annexes an actual warranty with a condition of re-entry on the failure of title of the land exchanged: and the party evicted can recover back the land given in exchange.</p> <p>3. To produce this effect it is absolutely necessary the word “ exchange ” should be used. No other equivalent word can supply its place.</p> <p>4. Where an exchange is effected by deeds of bargain and sale, the remedy of the party evicted is for damages on his covenants of warranty.</p> <p>5. A parol agreement for exchange consummated by deed of bargain and sale, will not establish an exchange, so as to enable one of the parties on eviction to recover back his land.</p>

Writs of error and of certiorari to the Court of Quarter Sessions and Oyer and Terminer of Armstrong county: No. 144, 145, 146, 147, to October and November… Held: &c., on the 1st Monday of June next, to answer the indictment,”' &c. On the 6th of June 1871, a motion of the defendant to quash the indictment, was on the same day overruled, and the defendant pleaded “not guilty,” and on the 7th a 'jury (who are named in the record), found the defendant guilty of manslaughter.

158: In the distribution of the estate of 0. Ormsby Gregg, deceased. The decedent died in February 1857, and administration of his estate was granted to R. Biddle Roberts, who in 1858 obtained an order from the Orphans’ Court to sell the real estate of the decedent for the payment of debts, some of which were of record-The administrator sold real estate under this order, and the proceeds were distributed amongst the creditors of the decedent.

15, to October and November Term 1870. This was an action of ejectment for 100 acres of land in Mifflin township, brought by William Neel, Samuel C. Neel, Thomas Neel, the minor children of John Neel, deceased, and others, against John McElhenny and others, minor children of Mary McElhenny, deceased. Under the rule of the District Court the plaintiffs filed their abstract of title, viz.:— The plaintiffs claimed: 1.

<p>1. C. being much in debt, gave to B. a mortgage, to be sold and his creditors paid at 50 per cent. The mortgage could not be sold, and with the consent of the creditors it was assigned to S. their attorney for their use. The land bound was sold under the mortgage, bought by S. for the same use and rented by him. He then sold to T., one of the creditors, the consideration being the payment of a preferred claim against 0., T.’s own d'ebt in full, and the balance in three notes of T., payable in one, two and three years, with an agreement by deed with T. that he would reconvey to S. in one year upon payment of the above consideration. T. received the rent, made no improvements nor exercised any other act of ownership, nor paid his notes.</p> <p>Ten years afterwards S. sold the land to M. to hold in trust for the creditors of C. In ejectment by M. against T., the court below held the transaction between S. and T. a conditional sale, and nonsuited M. Held, to be error; the facts raising the question for the jury whether the transaction was a mortgage.</p> <p>2. The deed to T. and his agreement under the facts, were but one instrument, and under the general rule would constitute a mortgage.</p> <p>3. If considered as a conditional sale, the facts of the deferred payments, and the continued receipt of the rent showing that the reconveyance was not limited to one year would produce the same result.</p>

57, to October and November Term 1870. This was an action of assumpsit, brought March 30th 1869, by George Hassinger against Robert Hardy, executor of Benjamin Patton, deceased.

58, to October and November Term 1870. This was an action of assumpsit, brought to April Term 1864, by Samuel Duff against Samuel Wilson. The declaration averred that the plaintiff had leased certain property to one Smethers, that the defendant became bound for the covenants in the lease, and that the tenant had failed to pay the .rent.

60, to October and November Term 1870. On the 24th of February 1870, James Kelly presented a petition to the Court of Common Pleas, setting out that he resided in Hampton township in July 1864, he had been drafted into the service of the United States, and having reported to the provost-marshal was mustered into the army on the 21st of July 1864; that on the same day he paid to the collector of internal revenue $300 commutation-money; that on the 2d of April 1869, the…

<p>Error to the Court of Common Pleas of Allegheny county: No. 62, to October and November Term 1870.</p> <p>This was an action of assumpsit to March Term 1869, by John L. Stewart against Eli C. Clark and A. A. Sumner, trading as Clark & Sumner; Sumner only was summoned.</p> <p>The plaintiff declared that on the 6th of August 1868, the defendants had bought from him 500 barrels of oil at 34J cents per gallon to be delivered in bonded warehouses in Philadelphia during the last half of August 1868, at buyer’s option, giving ten days’ notice to sellers previously to delivery, and the defendants promised to accept the oil, but although the plaintiff, at the time in the contract mentioned, was ready to deliver the oil in Philadelphia, of which the defendants had notice, and the same was tendered, the defendants would not receive and pay for it, and the plaintiff was compelled to sell it at a loss of $1000.</p> <p>Under their pleas the defendants gave notice of special matter, viz.: That he had made no such contract. On the 6th of August 1868, Waring & King, general oil brokers, reported to A. A. Sumner the purchase of 500 barrels of oil from persons unknown to him; on the 8th of August, Waring & King reported to Sumner that John L. Stewart was the vendor, and presented a form of contract for Sumner’s acceptance; that not being acquainted with Stewart, and finding from information Stewart’s standing not satisfactory to him, Sumner refused to accept the contract for himself or for Clark & Sumner ; that the contract alleged was never offered to Sumner or Clark & Sumner, nor ever entered into by them nor by any person authorized by them.</p> <p>The case was tried, March 1st 1870, before Collier, J., when the following facts appeared by the evidence:—</p> <p>W. P. Richardson was a broker in the oil business in the employ of Waring & King, of Pittsburg, who had a house under the name of Waring, King & Co., in Philadelphia; on the 6th of August 1868, they were authorized by Clark & Sumner to buy 500 barrels of oil at 34| per gallon, buyer’s option last half of August; if the oil was wanted before the last day of August, the buyer was to give ten days’ notice; the place of delivery was Philadelphia. Richardson, on the 6th, transmitted the terms of the contract to Philadelphia by this telegram :—</p> <p>“ Pittsburg, August 6th 1868.</p> <p>“ To Waring, King & Co.:</p> <p>“ You may buy 500 barrels oil last half August, at 34$ cents. “ Clark & Sumner.”</p> <p>On the same day he received this telegram from Waring, King & Co. ;—</p> <p>“ Is Clark & Sumner’s offer for August still good ?”</p> <p>Another message was received by Richardson from Waring, King & Co., as follows:—</p> <p>“Philadelphia, August 6th 1868.</p> <p>“We have bought, subject to immediate confirmation, 500, buyer last of August, 34$ for account of Clark & Sumner.”</p> <p>The reply sent to this was :—</p> <p>“ Pittsburg, August 6th 1868.</p> <p>“We hereby confirm purchase 500 buyer’s last half of August, 34$ for Clark & Sumner. “ W. T. Richardson.”</p> <p>During the mutual transmissions of the telegrams, Richardson did not see Sumner. On the 7th or 8th he saw Sumner and told him that he had bought 500 barrels of oil at his price, but did not give him the name of the seller, not knowing it himself; on the next day he told Sumner that Stewart was the seller. Sumner neither accepted nor refused, but asked who Stewart was; after looking at Bradstreet’s or Dun’s Registry, Sumner said he was not satisfied with Stewart’s rating. On the 10th Sumner refused Stewart because he did not consider him financially strong. Waring & King offered to guaranty Stewart, but the offer was not accepted by Clark & Sumner.</p> <p>Collymore, an oil broker in Philadelphia, knowing that Stewart wished to sell oil, went to Waring, King & Go., who offered 34$ per gallon, which Stewart accepted. On the same day, August 6th, having learned by telegram from Pittsburg that Clark & Sumner were the purchasers, he prepared a contract, viz.: “ Bought of John L. Stewart for account of Clark & Sumner, through Waring, King & Co., 500 barrels” of oil, &c. This contract was signed by Collymore, and “Accepted, John L. Stewart.” The contract embodied that which Waring, King & Co. were authorized by Clark & Sumner to make: it was sent to Clark & Sumner, they denied buying oil of Stewart.</p> <p>It was in evidence by Waring, one of the partners of Waring, King & Go., and a witness for plaintiff, that “ when a broker makes a contract for the purchase or sale of oil it is customary to submit it to the principal and have it confirmed by him. Until so confirmed it is not binding on either party. If the principal fails to confirm it the contract fails. Names are often given which are rejected, and in such case the purchase or sale fails.’</p> <p>There was evidence by the defendant that it was the almost universal rule not to accept a person who is guarantied, just because he is guarantied.</p> <p>A number of witnesses testified substantially as above as to the custom of confirming a contract.</p> <p>The defendants’ 3d point, which was refused, was: “ Under the evidence in this case, the plaintiff has-failed to make out any contract or agreement on which he is entitled to recover.”</p> <p>The verdict was for the plaintiff for ¡¡>1045.45.</p> <p>The defendants took out a writ of error and, amongst others, assigned for error the answer to this point.</p>

96. This was an action of covenant by William Carr against R. W. Pier, commenced July 3d 1869, on a covenant of suretyship for the performance of the covenants in a lease from Carr to James Sewell, dated January 10th 1868. By the lease Carr rented a tavern-house in Penn Street, Pitts-burg, to Sewell for one year from the 1st of April 1868, at $2000 per annum payable monthly.

79, to October and November Term 1870. This was a scire facias on a lien filed August 21st 1867, for grading, &c., Ridge street, in Allegheny City, issued September 20th 1867, by the Commonwealth, to the use of the city, against A. Marshall. The Act of April 13th 1840, Pamph.

125. Tbis was an action of debt commenced July 3d 1869, by Tbe Pittsburg and Connellsville Gas Coal and Coke Company against James M. Bailey, for bis subscription to 150 shares of the capital stock of tbe plaintiffs at $100 per share. Tbe plaintiffs were incorporated under tbe Act of July 18th 1863, Pampb. L. (1864) p. 1102, Purd. 1347. On tbe trial, May 2d 1870, before Collier, J., tbe plaintiff gave in evidence:— “ Tbe Subscription-Book of Stock — Oct. 1864.

<p>Error to the District Court of Allegheny county: No. Ill, of October and November Term 1870.</p> <p>This was an action on the case brought by John Perehment against Stewart McKee, on the 14th of May 1869, for obstructing the right of way, which the plaintiff claimed along the rear of lot's owned by the defendant.</p> <p>In 1844, David Aiken was the owner of a lot of ground in East Liberty, bounded on the north by the Greensburg turnpike, on the south by Shakespeare street, and on the east and west by opened alleys; being 120 feet front on Shakespea-re street and the turnpike, and 200 feet between those two streets on the alleys; and being lots Nos. 15 and 16 of another plot of Alexander Thompson. On the 30th of July 1844, Aiken divided this lot into eight smaller lots, each of 30 feet front, four on Shakespeare street and four on the turnpike; with a depth of 94 feet to a 12 feet alley; this alley had never been opened or used as such. At and for sometime before the commencement of this suit, the two lots on the extreme west, one on Shakespeare street, and the other on the turnpike, were owned by the defendant, the next two further east on the turnpike were owned by the plaintiff. The defendant erected and maintained a stable on the 12 feet appropriated in the plot for the alley, thus closing the plaintiff’s passage from the rear of his lot to the opened alley on the west.</p> <p>The annexed draft exhibits the location of the lots, streets and alleys.</p> <p>The case was tried, April 11th 1870, before Kirkpatrick, J.</p> <p>The plaintiff proved the laying out of the lots as above stated. He gave in evidence deed, August 2d 1844, from Aiken to Archibald Falconer, for the lots owned bp plaintiff, being part of lots 15 and 16 of Thompson’s plan, and described as fronting 60 feet on the turnpike, by 94 feet deep, to a 12 feet alley. “ Together with the free use of said 12 feet-alley, to be used by the said Falconer and his heirs and assigns as an alley or passage for ever, to have and to hold the said piece of ground, 60 feet on the turnpike, by 94 feet back, and the use of a 12 feet alley.” Deed, December 2d 1845, from Falconer to James Twist for part of lot 15, 30 feet front on the turnpike, “ by 94 feet back, with the use of a 12 feet alley.” Deed, December 4th 1845, Falconer to Thomas Newell for the remaining 30 feet, part of lot 16 on the turnpike. Deeds, Newell to McGowan, dated June 11th 1859, and Twist to McGowan, dated July 24th 1859, each for the 30 feet belonging to the grantors respectively. These three deeds contain the same reference to the alley: Deed, McGowan to the plaintiff for the whole 60 feet, “ To have and to hold said pieces or parcels of land, 60 feet on turnpike by 94 feet back, and the use of a 12 feet alley.” Deed, Aiken to Deborah Keeling, dated June 3d 1841, for 30 feet on the turnpike, “ 94 feet deep to a 12 feet alley. Being one-quarter part of lot No. 15, after said alley laid out by David Aiken was taken off lots Nos. 15 and 16, the free use of.which as an alley or passage is granted and confirmed to the said Deborah Keeling and her heirs and assigns for ever.” This lot is one owned by the defendant. Plaintiff gave evidence that the defendant.had erected and maintained a stable up to the centre line of the 12 feet reserved for the alley.</p> <p> </p> <p>The defendant gave in evidence, deed, dated June 7th 1841, Aiken to Joseph Graham, one-quarter of lot 15, beginning at an alley, &c., 106 feet from the turnpike and running by an alley laid out by Aiken, “ in the centre across lots No. 15 and 16 towards No. 16, 30 feet, thence 94 feet to Shakespeare street, being one-quarter of lot No. 15 after the said alley laid out by Aiken, was taken off lots 15 and 16, the free use of which as an alley or passage is hereby granted and confirmed to Joseph Graham aforesaid, his heirs and assigns for ever.” Graham conveyed this lot to Twist; Twist to Gamble; Gamble to Sprague; Sprague conveyed to the defendant on the 3d of February 1857, describing the lot (as in former deeds), as 94 feet deep to the alley; all the deeds containing the privilege of the alley in substantially the same terms as in Graham’s deed.</p> <p>On the 10th of February 1851, Deborah Keeling conveyed her lot to William McKee and the defendant, as described in Aiken’s deed to her, “ with a right to the use of the said alley.”</p> <p>W. Woolslayer, who since 1840, had been the owner of 60 feet, part of No. 16 on Shakespeare street and resided on it, testified that he had built a fence in the centre of the alley, which stood there until a year previously, when the plaintiff had removed his fence; all those who occupied west of witness had joined fences with him; the fence had been built the entire length through the centre of the alley and had stood there for twenty to twenty-five years. Falconer who owned part of No. 16, north of witness on the turnpike, built a stable to the centre of the alley shortly after witness had built his fence. Mrs. Keeling had built a fence along the centre of the alley about the same time. Falconer’s stable was not removed until plaintiff moved his fence; the defendant rebuilt the fence erected by Mrs. Keeling; witness planted trees and cultivated up to his fence for more than twenty-five years; Falconer’s stable and the coal-house of witness closed the alley; Mrs. Keeling had a stable which stood at the centre of the alley ; the defendant enlarged it by building over the top of it: other outbuildings were erected by the different owners of lots to the centre of the alley ; witness had never heard of any one asking for the alley until the plaintiff came.</p> <p>A number of other witnesses, including the defendant, testified substantially as Woolslayer: all concurring that there had been no demand for opening the alley until the plaintiff made one after becoming the owner of his lot.</p> <p>The plaintiff called Ann Huddle, the widow of Henry Huddle, who had owned 30 feet on Shakespeare street part of lot 16, south of plaintiff’s lot and the alley, and east of defendant’s lot. Her husband had bought the lot twenty-seven years before, and had occupied it fourteen years.</p> <p>The plaintiff proposed to prove by her that there was an understanding between the owner or owners of the lots in Aiken’s subdivision of lots that the alley might be used and cultivated to the centre thereof, until its use as an alley would be required by an adjoining owner, for the purpose of rehutting the alleged adverse enjoyment and abandonment, and to explain the defendant’s testimony as to the occupancy of the alley. The offer was objected to by the defendant, allowed by the court and bill of exceptions sealed.</p> <p>The witness testified that her husband a long time before had intended leaving the alley open, but at the request of some of the lot-holders had joined them in making the fence, with the understanding that the alley should be opened when called for. She also testified : “ I heard Mr. Huddle say that he put the fence on the line with the understanding that it was to remain there until the alley would be called for, when it would be opened.”'</p> <p>They called Charlotte Reynolds, who under objection by defendant and exception, testified to similar facts. Part of her testimony was as follows: “ Mr. and Mrs. McGowan, and William Woolslayer and myself, all talked of the subject of opening the alley. Mr. and Mrs. McGowan said they would leave it open if it was not for creating hard feeling. Mr. Woolslayer opposed it. He opened it afterwards when my husband opened ours.”</p> <p>The plaintiff gave other evidence to rebut the presumption of abandonment of the alley by the lot-owners.</p> <p>The following are points of the defendant with their answers:—</p> <p>2. If the jury find that Archibald Falconer (under whom plaintiff claims) did about the year 1845 join with the other lot-holders in building a fence through the middle of said alley, the entire length thereof, and otherwise obstructed the same by erecting side fences and a stable or other buildings up to the centre, and covering a portion thereof, and that this state of things so continued until after the plaintiff purchased from McGowan in 1869, the plaintiff cannot recover in this action.</p> <p>Answer: “ Affirmed, unless you find from the acts and declarations of the parties, which you will discover from the evidence of the case, if discoverable, that the intention in so obstructing the alley was merely temporary, and not permanent, and to be removed thereafter whenever required.”</p> <p>3. If the court refuse to charge, as requested in the 2d point, then they are requested to charge that if the jury believe that Archibald Falconer, in or about the year 1845, obstructed the said alley along the lots now owned by plaintiff, by erecting a fence and buildings up to, and through the middle of said alley, and cross fences to the centre thereof, with the intention on the part of said Falconer to abandon the use of said alley as such, and that these fences, &c., so continued from that time to the date of plaintiff’s purchase in 1860, then the verdict must be for the defendant, and especially so if the jury believe that the defendant was led by this appearance of things to erect a stable and other improvements upon the site of said alley, on his own premises, under the belief that the same had been permanently abandoned.</p> <p>Affirmed.</p> <p>4. If the jury believe that the defendant erected upon the site of the alleged alley a stable and other improvements, and that Peter McGowan, the then owner of the lots now owned by plaintiff, and through whom plaintiff claims title, stood by and knew of said erections being made, yet made no objections to them, nor to the obstruction of said alley by them, then McGowan would be estopped, so far as regards the defendant, from claiming a right of way over the site of said alley so obstructed, and the plaintiff, claiming title through McGowan, would in like manner be bound and estopped.</p> <p>Answer: “ Affirmed, if you find from all the evidence in the case that there was no agreement or understanding between these parties to the contrary; that is to say, if McKee by this conduct, intended to destroy the alley, and McGowan knew of this intention at the time.”</p> <p>6. Recitals in deeds estop only parties and privies, and the plaintiff being a stranger to the deeds in defendant’s claim of title, cannot take advantage of the recitals therein to estop the defendant from claiming and setting up that said alley or right of way was abandoned, or that it was extinguished by adverse user.</p> <p>Answer: “ Refused under the evidence of this case, whilst true as an abstract proposition. A party buying by a recorded plan, with street and alleys appertenant, would be entitled to all these privileges. The object of record is notice, and notice can be brought home without this record. The fact of notice is for the jury. All the deeds from Aiken call for this alley.”</p> <p>8. The declarations of Mrs. and Mr. McGowan, as sworn to by Mrs. Charlotte Reynolds, witness for plaintiff, should be entirely disregarded by the jury.</p> <p>9. The declarations of Henry Huddle, as sworn to by Mrs. Ann Huddle, are irrelevant and incompetent, and should be disregarded by the jury.</p> <p>Answer: “ Refused. We submit them to the jury as competent evidence. You will give them such credit and attach to them such and only such credit as you think them entitled to. This may be much, little, or nothing at all.”</p> <p>The verdict was for the plaintiff for 6 cents damages.</p> <p>The defendant took a writ of error from the Supreme Court. He there assigned for error:—</p> <p>I, 2. The admission of the testimony of Ann Huddle and Charlotte Reynolds.</p> <p>3, 4, 6, 6. The answers respectively to the defendant’s 4th, 6th, 8th and 9th points.</p> <p>7. The answers of the court to the defendant’s 2d, 3d, and 6th points are contradictory and calculated to mislead the jury.</p>

136; to October and November Term 1871. In the matter of the account of Thomas Mellon, guardian, &c., of Frederick S. Lorenz, a minor. In January 1858, Hon. Thomas Mellon was appointed guardian, &c., of the minor, who was then about ten years of age, and had an estate amounting to nearly $12,000. The minor lived with his mother for fourteen or fifteen months, and she was paid in full for his boarding at the rate of $300 per annum.

172, to October and November Term 1870. On the 7th of June 1841, the legislature incorporated the Coal Hill and Upper St. Clair Turnpike Road Company, to make an artificial road from near the top of Coal Hill, in Allegheny county, about one and a quarter miles from south end of the Monongahela bridge at Pittsburg, in a direction towards Canonshurg, in the' county of Washington; the road to be ten miles in length, reserving power to the legislature to resume the franchises of…

143, to October and November Term 1870. This was a scire facias upon a municipal claim at the suit of The City of Pittsburgh against Jacob II. Walter, issued to July Term 1869. The defendant filed an affidavit of defence to the merits.

167, to October and November Term 1870. This was an action of assumpsit, brought March 1st 1867, by James Rees against John Morrow.

159, to October and November Term 1870. This was an action brought before an alderman, by John H. McMasters against The Pennsylvania Railroad Company, in which judgment was rendered for the plaintiff for $38.81; the defendants appealed to the Court of Common Pleas: in which court the plaintiff declared in assumpsit.

189 to October and November Term 1870. This was an action of assumpsit brought April 2d 1869, by Lewis Lamb against Minas Tindle, administrator, &c., of John Maffitt, deceased, and James Old, surviving John Maffitt, late partners as Maffitt & Old.

90, to October and November Term 1870. This was an action of assumpsit by E. R. McGregor and Ann M. McGregor his wife, in her right, against John J. Sibley and Nesbit D. Stoops, commenced to April Term 1869. The action was brought to recover the value of a number of sewing machines and other articles, claimed by Mrs. McGregor to be her property, which had been sold by her husband to the Home Sewing Machine Company and by them to the defendants.

<p>Error to the Court of Common Pleas of Grawford county: No. 48, to October and November Term 1871.</p> <p>This was an action on the case brought September 7th 1866, by the Second National Bank of Titusville against the American Express Company.</p> <p>The suit was to recover damages for the loss of part of a package of money sent by the defendants, addressed to Amos Funk, Lancaster, Penna.</p> <p>The defendants’ route was from Titusville to Corry; from Corry to Lancaster other express companies had the route. The package when started from Titusville on the 25th of May 1866, contained $1900. It reached Lancaster, and Funk, on being notified of its arrival, called at the express office there, declined to receive it, and directed it to be returned to A. C. Kepler, Titusville. It was accordingly returned, and was delivered by the express agent to the plaintiff’s cashier on the 2d of June, and upon opening it, was found to contain but $600.</p> <p>The receipt given to the plaintiffs was as follows:—</p> <p>“AmericanExpress Company, Titusville, Penn., May 25th 1866.</p> <p>“ The American Express Co. do a general express business between all the principal cities and towns of the states of New York, Kentucky, Wisconsin, Western Pennsylvania, Michigan, Missouri, Ohio, Illinois, Minnesota, Indiana, Iowa, Canada, and connecting with other responsible expresses to all parts of the world.</p> <p>“ Livingston, Fargo & Co., Buffalo.</p> <p>“Wells, Butterfield & Co., New York.”</p> <p>“Beceived of Second National Bank, Titusville, Penna., one package, said to contain bank-notes valued at Nineteen Hundred Dollars, marked Amos Funk, Esq., Lancaster City, Pennsylvania, which we undertake to forward to the nearest point of destination reached by this company, subject expressly to the following conditions, viz.: This company is not to be held liable for any loss or damage except as forwarders only, nor for any loss or damage by fire, by the dangers of navigation, by the act of Cod, or of.'the enemies of the government, the restraints of government, mobs, riots, insurrections, pirates, or from or by reason of any of the hazards or dangers incident to a state of war. Nor shall this company be liable for any default or negligence of any person, corporation, or association to whom the above-described property shall or may be delivered by this company, for the performance of any act or duty in respect thereto, at any place or point off the established routes or lines run by this company, and any such person, corporation or association is not to be regarded, deemed or taken to be the agent of this company for any such purpose, but on the contrary such person, corporation or association shall be deemed and taken to be the agent of the person, corporation or association from whom this company received the property above described. * * * The party accepting this receipt hereby agrees to the conditions herein contained.</p> <p>“For the proprietors, “ O. J. Benham, Agent.”</p> <p>The case was tried January 21st 1870, before Johnson, P. J.</p> <p>The plaintiffs proved that their cashier, on the 25th of May 1866, put $1900 in an envelope, sealed it with mucilage and sealing-wax, and directed it to A. Funk, Lancaster, Penna. Downs, a clerk of the bank, delivered it about five minutes after it was sealed to the express office, took the bank’s express receipt-book, with receipt filled up, delivered the package as received, with the receipt-book to Benham, the express agent; the receipt-book had beenused by the bank for about fifteen months, and was about half-full of receipts. On the 5th of June this package was brought again to the bank by Robinson, an express agent, and the express charges from Titusville to Lancaster and back paid by the bank; it was laid on the teller’s table, who, upon opening it, found but $600 in it; the seals were not tampered with; the folds of the envelope had been cut, and it was held by mucilage.</p> <p>The defendants proved that Benham, their agent at Titusville, put the package into the safé at the office, kept the key about two hours, apd delivered it to the clerk, whose duty it was to bill such packages; the package was not interfered with whilst in his charge; it^was delivered by the clerk the next day, about thirteen hours afterwards, in the same condition it had [been'received, to the messenger on the Oil Creek Railroad; nobody could touch it whilst it was in the safe but the clerk. The messenger of the defendants who received the package from the clerk, delivered it two hours afterwards as he had received it, to the clerk a.t the office of the defendants at Oorry. The clerk at Corry received it May 26th, and put it into the safe immediately upon receiying it, and in the condition it was when given to him; it was delivered about 10 o’clock A. M. of that day to the messenger of the Union Line Express Company, in apparent good order. The agent of the Adams Express Company, at Lancaster received the package on the 29th of May in the evening; the package appeared to be perfect; it was laid in the safe until the morning of the 30th; it was given to another agent to deliver to Funk, who' brought it back to the office, Mr. Funk not being at home; it was put into the safe till the next morning; Funk then called and said he would not receive the package, and directed the agent at the office to return it to A. C. Kepler, Titusville; the package went in the mail train of Pennsylvania Railroad at 11.15 A. m., in the same condition in which it had been received, except that the direction was altered. They proved also the return of the package by similar evidence over the same route, and its delivery at the Titusville Bank; also that it would pass through four express companies, including the defendants, from Titusville to Lancaster, and that the Adams Express Company and the Union Line Express Company, two of them, were entirely distinct from the defendants ; the defendants had no control over the other companies.</p> <p>The defendants gave much evidence to show that there had been no negligence or want of care in regard to the package by the different agents of the several companies who had charge of it from the time it was delivered to them at Titusville until its return.</p> <p>The defendants’ points were — ■</p> <p>1. If the jury believe the evidence of defendants’ witnesses, the special acceptance and undertaking of defendants to deliver the package safely for plaintiffs at the end of the route has been fully complied with.</p> <p>2. There is no evidence of any contract on part of the defendants to deliver the package beyond the terminus of its own route, and if the jury believe that defendants parted with its possession each time in the same condition as received by them, the defendants are not liable for the loss of any of the contents of the package.</p> <p>3. The defendants are not to be charged with the loss unless it be shown affirmatively that the $1300 were in the package when they received it at Corry on its return from Lancaster, and the burden of this proof is on plaintiffs.</p> <p>4. Unless it is affirmatively shown that the $1300 were not in the package when it reached its destination at Lancaster, the defendants are not liable to plaintiffs.</p> <p>The points were denied.</p> <p>The court charged:—</p> <p>* * * “ [In this case the defendants agreed to carry or send this package safely to Lancaster, and deliver. it to Mr. Funk. That became impossible, because Funk would not take it. They had it on hand, and were bound to get rid of it or be responsible for it. So they voluntarily undertook to bring it back and redeliver it to the party from whom they got it.] This they failed to do. While in transitu, some one of their several agents or some outsider, through the negligence of these agents, opened the package and stole the money. The package is returned to the defendants, to whom it had been delivered to the plaintiffs from whom they received it, with full charges for its transportation both ways. But it is despoiled and robbed 6f $1800. * * * The plaintiffs therefore claim to have back from the defendants just what they committed to their safe-keeping, and have paid them for carrying and taking care of.</p> <p>“ The defendants resist this construction of their liability, because they say it is contrary to their special contract; that they did not undertake to carry the package to Lancaster, but only to the end of their line, and were not responsible for the diligence, care or honesty of those to whom they intrusted the plaintiffs’ goods, and indeed that they did not agree to deliver the package to anybody, nor at any place, nor at any time, and if they did, they were not to be held responsible for the negligence or stealing of those to whom they delivered it. All this or more is expressed or implied in the fine-print stipulations and conditions of their receipt. If full force and effect were given to these fine-print conditions, it would be as to them an entire exemption from the laws and liabilities of common carriers, and their offers to serve the community in that capacity would be a mockery, a delusion and a snare. While holding themselves out as such, they cannot thus escape the liabilities that attach to their occupation. Their undertaking is larger than their receipt and appended conditions. Receiving such a package marked for a certain destination, they are bound to forward it on its way with care and diligence, and are liable for any loss or damage that accrues through any negligence of theirs, or their agents or employees. That they may limit their liability for accidents beyond their control by special contract may be true, but they cannot exonerate themselves from the duties which the law imposes upon a party thus assuming the custody of another’s property and the obligations of a carrier respecting it. * * * It is clear to my mind that the loss of goods in the hands of a carrier unaccounted for, is presumptive evidence of negligence, and throws the burden of proof on him as to the manner of the loss. Peradventure he may show that the loss so happened as not to make him liable. But showing nothing as to how, when and by what means the loss occurs, the liability falls on him with or without a special contract. When the law presumes negligence, the burden of showing its absence necessarily devolves upon the party implicated. [Here, according to the proof, if believed, $1900 was given to the defendants to send to Lancaster and deliver to Mr. Funk. It was not delivered to him. The defendant was not to blame for that, for he would not take it. What, then, was to he done ? It should have remained at the place of consignment until the further order of the consignor was received. But this was not done. Those put in charge of it by the defendants undertook, of their own motion, to bring it back.] It came back into the hands of defendants. They claim to have received it as a package of $1900, agreed to pay those from whom they received it the full price for transporting that amount back from Lancaster. They then brought it to Titusville, charging for its transportation over their route at the full rate for $1900, and collected the expressage on that amount both to and from Lancaster. What was this but an assertion on their part that they had faithfully, diligently and carefully discharged their undertaking, and now returned undamaged the money intrusted to them? They did not return what they had received by $1300, and gave no account of its loss. But on whom should it fall, supposing both parties equally innocent of any intentional wrong ? Should the plaintiff, who has been guilty of no negligence, who had no possession of or control over it, be the victim ? * * * Whose duty is it to show how the loss occurred ? The plaintiff has no means of showing it. The defendants have, or ought to have. If the defendants have dishonest employees, that would be negligence. If they delivered the package into the hands of thieves, that was negligence. [If they received it from others on its return-trip and re-delivered it to plaintiffs as $1900, charging and receiving full price for the transmission, care and incidental responsibility of that amount, and there was not that amount there, that was negligence — not criminal, but technical.]</p> <p>“ As between two innocent parties, the loss must fall on the one whose act or agency has in any manner been instrumental in its production. [The burden of proof, then, was on the defendants to show their entire innocence of any agency in producing this loss. This could only be done by showing how it did happen. It was implied, if not expressed, in the contract of the defendants in taking charge of this money, that they would take or send it to its destination or return it to its owner. They have done neither. Therefore the presumption of negligence arises against them. They fail to show that it was the negligence of any other express company for whose carelessness they stipulated not to be responsible. Therefore they are not relieved from the presumption against themselves.]</p> <p>“ The conclusion of the whole matter is this: the defendants being common carriers, received this package of money consigned to’ Lancaster, under an implied contract to take or send it by careful and responsible hands to its destination. They declare, on the bill of lading or receipt, that they are doing business with such companies to all parts of the world. Not having delivered it to the consignee, they return it to the owner as sound, demand and receive pay for its safe transmission both ways as sound, and it proves to have been damaged while out of the possession of the plaintiffs $1300 worth.</p> <p>“ The law attaches negligence to the 'party thus receiving and returning the goods or package. To absolve themselves from liability for this negligence, the burden of proof is on the defendants to show how the loss occurred, so that the jury may judge whether it was altogether without any fault of theirs. You must judge from all the evidence whether the defendants have been guilty of negligence or are exonerated from liability.</p> <p>“ If, then, you believe from the evidence, that plaintiffs did enclose $1900 in the envelope, sealed up and gave it to the defendants in that condition, and that there was but $600 in the envelope when it was returned to the plaintiffs, and that the defendants have not accounted for the loss in a manner satisfactory or consistent with their freedom from blame, then the law presumes the loss to have occurred through their negligence and they are liable. If you are not satisfied of these two facts, that they gave to the defendants $1900 and got back only $600, your verdict should be for the defendants. * * *”</p> <p>The verdict was for the plaintiff for $1583.40.</p> <p>The defendants took a writ of error, and assigned the answers to the points, and the parts of the charge in brackets for error.</p>

76, to October and November Term 1870. William Kelley on the 27th of March 1867, brought an action of trover against William 0. Warren and Samuel E. Neiler, partners as Neiler & Warren.

71. This was an action of debt on recognisance of bail in error, by The Thompson Oil Company to the use of S. A. Davenport, John H. Walker, James C. Marshall and Francis F. Marshall, against Orange Noble, L. L. Lamb, Ambrose Snow and Theodore Wright. The writ was issued to December Term 1868, and returned “ summoned” as to Orange Noble and L. L. Lamb, and “nihil” as to Ambrose Snow and Theodore Wright.

<p>1. An advertisement was “ Bissell & Co., Bankers, R. L. Irwin, Cashier,” &c. Irwin was asked at the banking-house to discount a draft, payable to Bissell & Co.’s order, not being able to do it, at his request on the street after bank hours the cashier of a bank discounted it, Irwin endorsing it, “R. L. Irwin, Cashier.” Irwin had actual charge of B. & Co.’s business; signed his name as cashier in their business transactions, &c. Held, under the circumstances, that B. & Co. were bound by Irwin’s endorsement.</p> <p>2. The cashier of an incorporated bank is the general executive officer to manage its concerns in all things not peculiarly committed to the directors ; he is agent of the corporation not of the directors.</p>

<p>1. An Act of Assembly empowered a city to make a sufficient number of reservoirs “ to supply water in case of fire.” The council constructed reservoirs, but suffered one to dilapidate so that it would not hold water. A fire occurred near this reservoir and no water could be obtained from it, the buildings were burned. The owner claimed damages, alleging negligence on the part of the city. Held, that it was discretionary with the city to construct the reservoirs and they were not liable.</p> <p>2. The city having in pursuance of the act constructed the reservoir, was not therefore bound to maintain it.</p> <p>3. Carr v. N. Liberties, 11 Casey 324, recognised.</p>

175, to October and November Term 1870. This case originated in an attachment-execution issued by the Merchants’ National Bank at Meadville against George S. Selden and E. Ellis; to February Term 1867. The following facts in a case stated were agreed to by the parties:— “In August 1865, the Merchants’ National Bank of Meadville agreed to lend to George S. Selden $4700 on a $5000 United States 7-80 bond, belonging to his wife, as collateral security.

99. This was an action of assumpsit, brought June 4th 1867, by Joseph Kelsey against The National Bank of Crawford County.

121. Thomas Rogers, on the 26th of October 1865, brought an action of covenant against Daniel Bemus.

<p>1. Unseated land was assessed in Clark’s name; the land book showed payment of taxes by Irwin; and also after a tax sale “ redeemed by Irwin for Clark’s heirs; Irwin afterwards bought the land at a tax sale; and continued to pay taxes in his own name. He denied having any agency for Clark or his heirs, alleging that he had before his purchase redeemed íbr a creditor of Clark who had not repaid him. The court charged that the evidence was too slight to constitute an agency in Irwin for Clark. Held to be error — these were facts for the jury.</p> <p>2. Where a party in redeeming from tax sale claims to have paid all taxes demanded, in order to be relieved as to any not demanded, it must appear that the fault was with the treasurer exclusively. The party must have demanded a search for all sales and not allowed the treasurer to believe that a particular sale only was asked for.</p>

178. This was an ejectment commenced August 9th 1866, by Philip Cook against John Cook and George N. Berlin, for 108 acres of land. The case was tried August 24th 1870, before Barrett, P. J., of the 22d district. The plaintiff’s title was as follows: John Cook, his brother, one of -the defendants, by article dated the 1st of August 1837, contracted with the agents of the Bingham estate for the land in dispute for the consideration of $162.75.

87, to October and November Term 1870. This was an action of ejectment brought June 9th 1869, by Bowman Furnier against Levi Johnston, for 200 acres of land in Rostraver township, known as the “ Campbell tract.” David Furnier died in 1807, seised of about 420 acres of land, of which the premises in dispute are part. By his will he gave to his wife, Polly Furnier, one-third of his personal estate absolutely, and one-third of his real estate for her life.

76, of October and November Term 1871. This was an action of trespass d. b. a., brought April 16th 1868, by Azariah Dunham against Jacob Creps, late sheriff of Indiana county, for levying on and selling a large number of staves under an execution against Thomas P. Hatch; the plaintiff alleging that the staves were his property.

<p>1. A religious society, incorporated or not, is but a trustee of a charity and a court of equity will prevent the diversion of property held in trust.</p> <p>2. A church endowed in connection with an ecclesiastical organization, or in subordination to it, cannot unite with another organization or become independent.</p> <p>3. The title to the church property of a divided congregation is in that part which is acting according to its own laws; and the right is to be determined by the ecclesiastical laws, &c., which were accepted among them before the suit began.</p> <p>4. Those not conforming to their laws may form another connection or become independent, but must abandon all claim to thq property.</p> <p>5. A portion of a church declared independence of their ecclesiastical judicatory ; the judicatory declared the offices of their elders and deacons vacant, and ordered the election of others for the church. Having thrown off the jurisdiction of the judicatory, they were not entitled to notice of the election.</p>

Appeals from the Common Pleas of Westmoreland county: Nos, 177 and 178 to October and November Term 1871. These were appeals from the decree of the Court of Common Pleas, distributing money arising from sheriff’s sale of real estate of William M. Thomas, and were taken by Zeigler, Baker & Co., and by James Borlin, their assignee in bankruptcy.

169, to October and November Term 1870. The bill in this ease was filed July 14th 1868, by Stafford Raydure, D. C. Raydure and W. S. Raydure, against Thomas F. Smith and Porter Fleek. The plaintiffs averred— 2 and 8.

219, to October and'November Term 1871. At fhe March Sessions 1868, an indictment containing two counts was found against James Birdsall; the first that he did feloniously break and enter the storehouse of Seth T. Stewart, “ with intent the goods and chattels of the said Seth T. Stewart, then and there being to steal,” &c.; the second, that “ on the day and year aforesaid,” he stole a large number of different articles, naming them in detail, “ the goods and chattels of Seth…

<p>1. S. had a judgment against A. and F. his surety. H. held the next lien against F., C. as surety for F. had paid a judgment against F. and himself. F.s land was sold and S. paid by the sheriff from the proceeds, he assigned his judgment to H. F. assigned to 0. his interest as surety of A. iu the judgment of S. Reid, that H. was entitled to be subrogated to the judgment of S. in preference to 0.</p> <p>2. Where one creditor has a judgment against principal and surety, and another has a judgment against the surety, if the creditor of the two collect his judgment from the surety the other creditor is entitled to his judgment.</p> <p>3. II. having a lien on the land of F., which was taken to pay S., would be entitled to be subrogated to the judgment of S.</p> <p>4. H. was entitled to subrogation so soon as F/s land paid the judgment of S., and F. could not assign his interest in the judgment to the prejudice of H.</p> <p>5. Harrisburg Bank v. German, 3 Barr 300, overruled; Gearhart v. Jordan, 1 Jones 325, Lloyd v. Galbraith, 8 Casey 103, Neff v. Miller, 8 Barr 347, recognised.</p>

<p>1. Howard contracted to construct portions of a railroad; by the contract, the engineer was to make an estimate of the quality, character and value of the work; and in case of dispute, the engineer’s decision was to be final and conclusive. Held, that by these covenants both parties were debarred from a suit at law.</p> <p>2. A rule of court provided that upon a claim with affidavit being filed; items not denied by affidavit of- defence should be taken, as admitted. The plaintiff in covenant on his contract, filed a claim containing items for work, &e., also items for loss by having been stopped by the company, and copy of the contract. The rule did not apply to such case.</p> <p>3. O’Reilly v. Kerns, 2 P. F. Smith 214, Reynolds v. Caldwell, 1 Id. 298, adopted.</p>

<p>1. A vessel insured on a valued policy for one-third its value was wrecked and the underwriters paid as for a total loss. They were subrogated .to all the rights of the insured, for the purpose of indemnifying themselves.</p> <p>2. The insured claiming that they were tenants in common, sued the underwriters in assumpsit and in a special count alleged that the underwriters took possession of the wreck and converted it and thereby became liable to pay the insured their share of its value. Held, that the count was bad: such liability did not result from the facts.</p> <p>3. The underwriter’s agent, after examination of the wreck, determined that it was not worth the risk and expense of raising ; they did nothing, nor prevented the insured from raising the wreck. Held, that the underwriters not being bound to look after the interests of the insured and not having received anything from the wreck, were not liable to the insured for any part of its value.</p>