Volume 7 — Sadler's Pennsylvania Reports

This was a judgment entered in an amicable action of debt November 2, 1881, by W. D. Wonderlich, against Audio Kerr, Jr., upon the following instrument in writing: W. D. Wonderlich] In the Court of Common Pleas of Cum-v. [ berland County. Andie Kerr, Jr. J No. —, November Term, 1881. Keal debt, $3,864. Interest from April 1, 1882, at five per cent per annum.

The facts as they appeared at the trial before Woodwaed, J., are stated in the opinion. The plaintiff having testified to the circumstances under which the services for which he claimed compensation were rendered, and that for a previous month’s work he had received his pay from the defendant’s clerk, was asked on cross-examination : Q. Who employed you at the mines s A. The miner, Ed. McCormick. Q. Where was he when he employed you ?

This was an action of assumpsit begun May 31, 1883, by H. Croushore, M. L. Painter, and J. B. Blyholder, administrators c. t. a. of the estate of Israel Painter, deceased, against E. ,W. Knox.

<p>Error to the Common Pleas of Bedford County to review a judgment on a verdict for defendants in an action on a promissory note.</p> <p>The following facts appeared at the trial in the court below before Baer, P. J.:</p> <p>July 28, 1881, on application of J. B. Cessna, plaintiff loaned to him the sum of $600, on a judgment note signed by J. B. Cessna, William Cessna, and William L. Mbseby, to the order of Albert E. Eyan, for the sum of $600, payable two years after date.</p> <p>On March 22, 1884, J. B. Cessna paid $72 to said Eyan which was indorsed on the back of the note as follows:</p> <p>March 22, 1884, received on the within seventy-two dollars, interest from July 28, 1882, to July 2-8, 1884.</p> <p>$72.00 A. E. Eyan.</p> <p>J. B. Cessna failed in September, 1884, and the plaintiff caused a judgment to be entered on the note on which a fi. fa. was issued. Thereafter William Cessna and William L. Mose-hy presented a petition to the court for a rule to show cause why the judgment should not be opened as to them and they be permitted to make defense, alleging that they signed said note as sureties; that they received no money or personal benefit upon said note, and that the payee therein named, in consideration of the payment by the principal, J". B. Cessna, of interest in advance to July 27, 1884, extended the time of payment of said note to such time without their knowledg'e or consent and to their prejudice.</p> <p>To this petition the plaintiff filed an answer which set forth that on July 27, 1881, plaintiff loaned to J. B. Cessna $600, “and took his single bill for the amount with 'William Cessna and William Moseby as sureties,” payable in two years; that October 26, 1882, J. B. Cessna paid $36 on said note, and on March 22, 1884, $72; that plaintiff never at any time extended the time of payment of said note, nor was there any agreement, arrangement or understanding made with said Cessna that would have prevented him from proceeding to collect the same from the principal, if notice so to do had been given by the surety or sureties. This answer was verified by the plaintiff.</p> <p>The court made the rule absolute, and depositions were duly taken and filed.</p> <p>At the trial in the court below, plaintiff offered to prove by Albert E. Eyan that at the time J. B. Cessna got the money, he represented that he and his brother William Cessna were the borrowers; that ho got the money for himself and his brother William, and that William Moseby was a surety; that he represented that he was acting as attorney for his brother William in borrowing money; that he and his brother William were joint borrowers, and that the money was loaned on these representations. This was objected to by defendants. Objection ■sustained and offer overruled. Assignment of error.</p> <p>The court’s charge to the jury was not excepted to, and the jury returned a verdict for the defendants, upon which judgment was subsequently entered.</p> <p>The assignments of error specified the rejection of plaintiff’s «offer of evidence, above noted.</p> <p>—Cited Ogle v. Graham, 2 Penr. & W. 132; Sigfried v. Levan, ■6 Serg. & B. 308, 9 Am. Dec. 427; Wiley v. Moor, 17 Serg. & H. 438, 17 Am. Dec. 696; Patterson v. Patterson, 2 Penr. & W. 200; Simpson v. Bovard, 74 Pa. 351; Shaeffer v. M’Kinstry, 5 Watts, 258; Sterling v. Stuart, 74 Pa. 445, 15 Am. Kep. 559.</p>

<p>Error to the Common Pleas of Lebanon County to review a judg-meht on a verdict directed for plaintiffs in an action on a bond.</p> <p>This action was brought by the executors of George E. Mars against William Allwein, to recover on a refunding bond the difference between the amount of a legacy paid to one Polly All-wein and the amount distributed to her by the orphans’ court. The condition of the bond appears from the charge of the court to the jury, given beíow.</p> <p>On the trial plaintiffs, to prove their case, offered in evidence the will of the testator, a certified copy of the plaintiffs’ account as executors, confirmed by the orphans’ court, and the report of the auditor making distribution of the balance in tbe bands of tbe executors, and tbe filing and confirmation of tbe same.</p> <p>Tbe account and auditor’s report were objected to by defendant, upon tbe ground that tbe evidence was incompetent and irrelevant to affect tbe issue. Tbe court overruled tbe objection in these words:</p> <p>“In our opinion tbe evidence is competent to prove a breach of this bond, and tbe objections are overruled and the evidence admitted. This ruling applies to tbe account aod tbe report together, and not separate.”</p> <p>Further facts appear from tbe charge of tbe court to tbe jury, as follows:</p> <p>This suit is brought upon a refunding bond given by tbe defendant, William Allwein, to tbe executors of George F. Mars. Tbe action is brought to recover the difference between tbe sum paid Polly Allwein, who was a legatee under the will of George Mars, in January, 1888, and tbe amount subsequently distributed to her by tbe orphans’ court of Schuylkill county in February, I think, 1884. It is admitted that the settlement then made was a full and complete settlement of tbe estate of George F. Mars, and therefore it follows that the amount thus decreed to her by tbe orphans’ court was tbe full amount to which she was entitled under tbe will. She received $2,950 in January, 1883, and tbe claim is made now that under tbe following condition (which I will read to you) there is an obligation to pay back tbe difference between tbe amount actually received and tbe amount which she ought properly to have received. Tbe condition is this:</p> <p>“Now tbe condition of this obligation is such that if any part of this sum so paid to the said Polly Allwein shall at any time appear to be wanting to discharge any debt or demand against tbe estate of said deceased which tbe said executors shall not have other assets to pay, then and in such case, if tbe said William Allwein, bis heirs, executors or administrators shall and do return tbe said legacy, or said sum or such part thereof as shall be necessary for tbe payment of the said debt or demand and tbe cost and charges attending tbe recovery of tbe same, then this obligation shall be void.”</p> <p>We bold in this case that tbe evidence produced before us is competent to establish that a portion of this bond is needed to discharge a debt or demand against the estate of said deceased, and (at least in the absence of any other evidence contradicting the account and the auditor’s report taken together) that the plaintiffs have made out a good case.</p> <p>[We do not now decide that the papers are conclusive evidence upon that subject; but there is no other evidence in the ease, except these papers; and upon them we say your verdict, must be in favor of the plaintiffs, for the difference named, with interest from the time demand was made, which appears to have-been August 11, 1885.] The amount as calculated is $383.80,. —$358.70, and interest $25.10.</p> <p>You will render a verdict for the plaintiffs for that amount.</p> <p>Exception noted for the defendant.</p> <p>Verdict and judgment accordingly.</p> <p>The assignments of error specified the action of the court in-admitting in evidence the account of the executors, the auditor’s, report, and the portions of the charge inclosed in brackets.</p>

The facts as they appeared by the petition for the ride and the answer thereto, being undisputed, were stated in the opinion delivered in the court below by BarNett, P. J., which was as follows: Plaintiff’s application sets forth that the sheriff levied, on March 12, 1887, on the defendant’s personal property. The defendant was personally present at the time, and no demand was made for the benefit of the debtor’s exemption.

The assignments of error were based upon the admission of certain offers of evidence by the defendants, upon the portions of the charge inclosed in brackets, and upon the answers to points, as stated below.

B. Williams, as receiver of the Bedford county bank, against Jacob Lingenfelter, to recover on two notes made by the defendant and discounted by the bank for $50 and $800, respectively, and also for an alleged balance on a book account of $912.92.

Error • to tbe Common Pleas of Columbia County to review a judgment on a verdict for tbe plaintiffs in an action of scire facias sur mortgage.

At the trial before PatteksoN, J., the following facts appeared : On October 8, 1884, Joseph C. Walker and Henry Wise entered into articles of agreement under seal, for the sale and purchase of a farm in Sadsbnry township, containing 122 acres and 31 perches.

At the trial before Patterson, J., the following facts appeared : Myers and Fritz owned and occupied adjoining farms. The Fritz farm was the higher land, and a narrow valley opened from it upon the Myers farm.

Tbe facts as they appeared at tbe trial before Futiiby, P. J., were stated in bis charge to tbe jury, wbicb was as follows: Tbis is an action brought by tbe Delaware Elver & Lancaster Railroad Company against Samuel N. Rowland, to recover a balance upon a subscription to its capital stock.

<p>Where a written agreement for the purchase and sale of land contains the entire contract between, the parties, the vendor should be compelled to give a deed conforming thereto. A deed containing a reservation of a right of way not provided for in the written agreement is not a compliance with such agreement.</p> <p>Note. — The same decree was made in Anders’s Estate, 12 Rhila. 45, under similar circumstances. So in Lesley v. Morris, 9 Phila. 110, a title was held not to be marketable when the property was burdened with a building restriction which impaired the enjoyment of the property.</p>

<p>Where a testator by will made within a calendar month before his death bequeaths half of his residuary estate, converted into personalty, to his executor in trust to “place the same out at interest on good real estate security, and pay over the interest thereof annually,” to S. “during the term of her natural life, and, from and immediately after the death” of S., bequeaths the principal to a charity, the bequest over is void under the act of April 26, 1855, and the principal goes after the death of S. to the testator’s next of kin.</p> <p>Cited in McKee’s Estate, 26 Pittsb. L. J. N. S. 385, 17 Pa. Co. Ot. 551.</p> <p>Note. — Section 11 of the act of April 26, 1855 makes invalid the devise of real or personal property to any charity within one calendar month of testator’s death, unless made for a valuable consideration, or unless fully executed during the testator’s lifetime. Reimensnyder v. Gans, 110 Pa. 17, 2 Atl. 425; lie Luebbe, 26 Pittsb. L. -J. N. S. 224; Vanzant’s Estate, 6 Pa. Co. Ct. 625.</p> <p>The rule of construction that, in the absence of a different intention appearing in a will, a bequest of the income of personalty for life without any disposition over is a bequest of the fund itself, is inapplicable to such a case.</p>

The case was heard on petition for citation and answer. No replication was filed. The facts are stated in the following opinion of the court below, by Patterson, J.: The petitioner, a brother of the said trustee, and who is the cestui que trust of the fund in trust, presented in court and filed his petition March 19, 1886, praying for a citation to Albert E. Sharp, his trustee, that he give security as such trustee, or that he be dismissed.

At the trial before Livingston, P. J., the following facts appeared: In the spring of 1883, G. G. Landis, a minor son of Jacob P. Landis, the plaintiff in error, engaged in the cigar business at Lima, Ohio. In May of that year he went to A. P. Neff, the plaintiff below, in York county and purchased some cigars from him, two cases of which were shipped to Lima.

The narr. set out the devise, possession and default in payment, with an additional count for use and occupation. The defendant pleaded nil debet. It did not appear by the pleadings that the defendant was a married woman. The facts appear by the following charge of the court, by Pat-TEESON, J.: The action was brought to recover the amount of money alleged by the plaintiff to be a balance of rent owing by this defendant, formerly Amelia Diehl, now Amelia Kress.

The facts as they appeared before William A. Wilson, Esq., tbe auditor appointed by tbe court below, were stated in bis report substantially as follows: Joseph Stark was tbe owner of a small tract of billy and rough land, situated in Lancaster township, on tbe public road leading from the Philadelphia pike to tbe Lancaster waterworks. On it were erected a one story frame or log dwelling-house and a stable.

<p>Where there is a failure to trace trust funds into any specific property of the trustee, they are not entitled to priority of payment over the claims of other creditors, although the trustee may have continued to pay interest on the securities in the form in which they originally came into his hands.</p> <p>Note. — Similar determinations are found in Lebanon Trust & S. D. Bank’s Estate, 166 Pa. 622, 31 Atl. 334, and Freiberg v. Stoddard, 161 Pa. •259, 28 Atl. 1111. So, in Cross’s Appeal, 97 Pa. 471, it was held that no resulting trust in land would arise from the mere fact that the owner of the land uses trust funds in its improvement.</p> <p>In Cross’s Appeal, 97 Pa. 471,1 Chester Co. Rep. 221, the auditor found as a fact that the guardian used his ward’s money in improving his land and in building a house, etc., and that the guardian thought such use of the trust money was safer than investing it in stocks. The supreme court held, Sharswood, J., dissenting, that the proceeds of tire sale of such real estate 'by the assignee for the benefit of creditors of the trustee were not impressed with a resulting trust for the trust moneys so used.</p> <p>A resulting trust in lands, in Pennsylvania, must arise, if at all, at the inception of the title. Barnet v. Dougherty, 32 Pa. 371.</p> <p>It was held, also, in Cross’s Appeal, that the cesiui que trust had no lien ■on the land, arising from the equitable circumstances of the case.</p>

Appeals from decrees of the several Courts of Common Pleas of Philadelphia County enjoining the assessment and collection of taxes upon mortgages held and owned by twenty-one corporations of the City of Philadelphia. These were bills in equity filed by the twenty-one following corporations, viz.: Guarantee Trust & S. I). Co.; Delaware Mut. Saf. Ins. Co.; Girard Life Insurance, Annuity & Trust Co.; Penna. Co. for Insurances, etc.; American Eire Ins.

<p>Under the act of April 13, 1840, which provides for the partition by the orphans’ court of the real estate of decedents in cases of testacy, wherein the course of descent is not altered, the orphans’ court has no jurisdiction where lands are devised to six out of eight heirs at law. In that case the course of descent is changed and the devisees take as purchasers.</p> <p>The act of April 25, 1850, does not extend the act of April 13, 1840, to this case.</p> <p>Note. — This case is a rehearing of Vowinckel v. Patterson, 114 Pa. 21, 6 Atl. 470.</p>

<p>Until overcome by testimony which, if believed, ought to move a chancellor to decree the note on which a judgment is entered void, or to be reformed because of forgery, fraud, or mistake, the judgment should not be opened.</p> <p>That the maker of the note cannot read the language in which it is written is a fact to be considered; still, the burden is on him to establish that it was falsely read, or represented to be other than what is written.</p>

Appeal by Henry S. Knarr, assignee of Calvin Sloppy, from a decree of the Court of Common Pleas of Clearfield County opening a judgment entered on a judgment note, in No. 182, May Term, 1885, in wbicb Calvin Sloppy was plaintiff and John El-gren defendant.

<p>Appeal from a decree of tbe Common Pleas of Bedford County distributing tbe proceeds of a sheriffs sale of real estate.</p> <p>Tbe facts as they appeared before John P. Reed, Esq., tbe auditor appointed to make distribution, were stated in bis report which, in so fax as it related to tbe question presented by this appeal, were as follows:</p> <p>Daniel Cessna, trustee, had recorded in tbe recorder’s office for Bedford county, in Mortgage Book “F,” pp. 350 — 353, a mortgage against tbe Everett Glass Company for tbe sum of $5,000, dated July 14, 1885, on tbe 16th. The mortgage conveyed to said trustee a tract of 6 acres of land, more or less, situated in West Providence township, in said county.</p> <p>Upon this lot were the requisite buildings for the glass works, and it is the real estate sold by the sheriff.</p> <p>Upon this mortgage Hon. John Cessna, attorney, issued a scire facias, entered to No. 90, April term, 1886.</p> <p>And in due course, on the 3d day of March, 1886, judgment was taken for the sum of $5,200, with interest from March 14, 1886, and costs. '</p> <p>Upon this judgment Mr. Cessna issued a levari facias to No. 78, April term, 1886, by virtue of which the sheriff levied upon said real estate, and advertised the same for sale.</p> <p>Subsequently the writ was stayed and the sheriff made return accordingly.</p> <p>An alias levari facias was then issued, entered to No. 11, September term, 1886, upon which the sheriff made return:</p> <p>“Land advertised for sale May 18, 1886, and notice of sale served 8 miles. May. 18, 1886, land and premises within described sold to Daniel Cessna, Esq., of Bedford, Pennsylvania, for the sum of $5,030, he being the highest and best bidder, and that the highest price bidden for the same.”</p> <p>On this mortgage, judgment and execution Mr. Cessna claims the entire proceeds of the sale.</p> <p>The Watertown Steam Engine Company, of the state of New York, by their counsel, Erank Ele teller, Esq., entered a mechanics’ lien, filed and entered on the mechanics’ lien docket to No. 21 of the year 1885, on the 10th day of December, 1885, for the sum of $700. Interest from October 1, ’85.</p> <p>The claim is for an engine furnished June 15, ’85, $390, and a boiler furnished June 26, ’85, $400, making $790; upon which was paid July 7, ’85, $90- — leaving due claimants $700.</p> <p>The claim was furnished on the credit of the buildings (described at length in lien "filed) on the 6 acres of land described in mortgage.</p> <p>The claim was not indexed on the mechanics’ lien docket.</p> <p>Messrs. Beynolds & Cessna object to the lien because it was not indexed, and because of informalities, irregularities and legal defects.</p> <p>Mr. Beynolds also objects that claim is not proved.</p> <p>The claim, however, was subsequently proved, and it is assigned to the use of Daniel Cessna, to whom it was sold, and it remains unpaid.</p> <p>A great deal of testimony was taken to show the origin of the mortgage debt, and Mr. Cessna’s connection with the same— whether he was counsel for the same or not, and had notice of the mechanics’ liens.</p> <p>Daniel Cessna, the trustee, was a dry trustee and had no interest in the mortgage. lie assigns $2,500 of the same to Franklin & Marshall College, July 15, ’85. July 20, ’85, he assigned to Mrs. Margaret Heffner $1,500. August 15, ’85, he assigned $400 to Peter Fink, and on the 22d of August, 1885, $600 to John A. Gump.</p> <p>Mr. John Cessna was president of the glass company and secured all the above moneys for the company from the assignees, except the loan made by Mr. Gump. Mr. Cessna was not attorney for Franklin & Marshall College, or any of the others taking parts of the ¿mortgage, but he induced them to take the same, assuring them it would be a safe investment; and although not legally bound to them in any way, he felt morally bound to see them get a return of their money, and assured them they should not lose; hence, his interference in this business. He saw that the company was insolvent, and voluntarily issued the writs bringing the property to sale; and in the same spirit he attended the sale of the real estate, to see that it brought a price to save the people he induced to lend money to the company, and not as counsel for any person.</p> <p>The lien filed is in due form, describing the premises properly, and is duly proven. The only substantial objection is that it was not indexed.</p> <p>But inasmuch as the engine and boiler were contracted for under the original plan, and they were good articles faithfully furnished, and were left unpaid for at the time of the making of the mortgage, and the fact was known to the mortgagee, and there being no objection to it by the mortgagee, the claim is allowed to participate in the fund.</p> <p>In accordance with the foregoing finding of facts, and opinion, the auditor respectfully reports the following:</p> <p>Distribution.</p> <p>Fund in court for distribution. $5,030 00</p> <p>Appropriated to costs of audit. 51 67</p> <p>Appropriated to tbe Watertown Steam $4,978 33</p> <p>Engine Company, lien No. 21, of tbe year 1885 . $700 00</p> <p>Int. from Oct. 1, ’85, to sale May 18, ’86 26 50</p> <p>Protbonotary’s entering lien. 1 00</p> <p>- $727 50</p> <p>$4,250 83</p> <p>Tbe above balance appropriated to tbe debt, interest, and costs due on judgment.</p> <p>Daniel Cessna, trustee,] No. 90, April 1 Term,’86. vs. Alias levari fa- | cias No. 11. Tbe Everett Glass Co.J Sept. Term, 1886.</p> <p>Cost taxed on writ, $112.27, to be paid first.</p> <p>Eor use of Eranldin & Marshall College.. $2,500 00</p> <p>E'or use of Mrs. Margaret Heffner .... 1,500 00</p> <p>For use of Peter Fink. 400 00</p> <p>For use of John A. Gump. 600 00</p> <p>From above bal. deduct costs to be paid first, to wit:. 112 27</p> <p>Balance to be appropriated to above assignees pro raía:.$4,138 56</p> <p>Fro rata 82.77-100.</p> <p>Therefore,</p> <p>Franklin & Marshall College’s share,.$2,069 30</p> <p>Mrs. Margaret Heffner’s share. 1,241 56</p> <p>Peter Fink’s share. 331 08</p> <p>•John A. Gump’s share. 496 62</p> <p>$4,138 56</p> <p>The trustee and assignees excepted to the report, upon the ground that the lien should not have been allowed; but the court below dismissed the exceptions and confirmed the report.</p> <p>The assignments of error specified the action of the court: (1) In overruling the exceptions filed to the auditor’s report; (2) in decreeing any money to the claim of the Watertown Steam Engine Company; and (3) in not appropriating and decreeing all of the money made on sale of the real estate of the Everett Glass Company to the mortgage of Daniel Cessna, trustee, for the use of appellants.</p> <p>There is but a single question at issue in this case. The contest is between a mortgage and a mechanics’ lien. The third section of the act of June 16, 1836, 2 Purdon’s Digest, § 3, provides and directs that prothonotaries shall “procure and keep a book docket, which shall be called 'The Mechanics’ Lien Docket,’ in which he shall cause to be entered and recorded, all descriptions or designations of lots or pieces of ground as hereinafter mentioned, and all claims that may be filed by virtue of this act, together with the day of filing the same; and he shall cause the names, as well of the owner of the lot or piece of ground, as of the contractor, architect or builder, if such be named, and of the persons claiming any lien under this act, to be alphabetically indexed therein.”</p> <p>A mortgagee is a purchaser for value. Any creditor on distribution may attack a mechanics’ lien. Knabb’s Appeal, 10 Pa. 186, 51 Am. Dec. 472; Norris’s Appeal, 30 Pa, 122; Mc-Cay’s Appeal, 37 Pa. 125.</p> <p>While some liberality has been extended by the courts towards mechanics and materialmen, this liberality does not excuse a substantial compliance with the provisions of the statutes. A mechanics’ lien depends on no principle of moral right, but on positive enactment, of which it is the creature, and beyond the terms of which it cannot be extended. Bolton v. Johns, 5 Pa. 149, 47 Am. Dec. 404; Noll v. Swineford, 6 Pa. 187.</p> <p>The remedies afforded by the mechanics’ lien law are extra- . ordinary, and in view of the large license it confers our courts have found it necessary, for the protection of others, to hold the claimants under the law to, at least, a substantial compliance with the acts of assembly. As the law calls for nothing unreasonable at the hand of him who would fasten an encumbrance upon tbe property of Ms neighbor, no just ground of complaint is afforded by insisting upon a rigid adherence to its provisions. Lauman’s Appeal, 8 Pa. 473.</p> <p>It is open to impeachment by all having an interest in the question of its validity as owner, purchaser or subsequent lien creditor. As a lien of this nature derives its vitality exclusively from the statutes, it has been repeatedly decided that it must conform to these requisitions in every essential particular under penalty of avoidance. McOay’s Appeal, 37 Pa. 125.</p> <p>The right of a mechanic is not a right at common law. It is entirely of statutory creation. His privileges can only be asserted in the manner provided by the statute. Ely v. Wren, 90 Pa. 148.</p> <p>In the case now under consideration no writ of sci. fa. had ever been issued and of course no judgment obtained. The claim filed, even if it had been indexed, was no record. Davis v. Church, 1 Watts & S. 240; Lauman’s Appeal, 8 Pa. 473; Armstrong v. Hallo well, 35 Pa. 485.</p> <p>A judgment obtained upon a mechanics’ lien is not even prima facie evidence in a contest among creditors. Norris’s Appeal, 30 Pa. 122.</p> <p>It was the duty of the claimant to see that his lien was properly entered. Bidgway’s Appeal, 15 Pa. 177, 53 Am. Dec. 586; Smith’s Appeal, 47 Pa. 128. See also authorities cited in these two cases.</p> <p>This lien was constructive notice to no one and actual notice of its existence would have bound no person. Simpson v. Williams, 3 Yeates, 402; Heister v. Eortner, 2 Binn. 40,4 Am. Dec. 417; Kerns v. Swope, 2 Watts, 75; Bolton v. Johns, 5 Pa. 145, 47 Am. Dec. 404; Uhler v. Hutchinson, 23 Pa. 110; Goepp v. Gartiser, 35 Pa. 130; Myers v. Boyd, 96 Pa. 427.</p> <p>The doctrine of notice does not apply to creditors, only to purchasers. Hulings v. Guthrie, 4 Pa. 123.</p> <p>Besides, no notice is proved or even alleged, in the present case. A judgment has priority over an unrecorded mortgage, even when the plaintiff in the judgment had actual notice of the existence of the mortgage. Jaques v. Weeks, 7 Watts, 261; M’Lanahanv. Beeside, 9 AVatts, 508, 36 Am. Dec. 136.</p> <p>Beigart’s Appeal, 4 Pa. 477, a case of an assignment for creditors — not recorded in the county where the assignee resided— was ruled void as to creditors.</p> <p>In Dougherty v. Darrach, 15 Pa. 399, an assignment for creditors had been recorded in the county in which the assignor resided, but not in the county where the land was located, and it was ruled void as to a purchaser without notice.</p> <p>A judgment against a partnership or firm, and not indexed against the individual members of the firm, creates no lien against them, not even when entered against such members of the firm, if the Christian names are omitted. York Bank’s Appeal, 36 Pa. 458; Smith’s Appeal, 47 Pa. 128.</p> <p>There is a vast difference in the legislation directing the recording of mortgages, judgments, and mechanics’ liens. No particular book is designated for the two former. But for mechanics’ liens the act is specific as to the book and mandatory as to the things required to be done. Glading v. Prick, 88 Pa. 460.</p> <p>Irish v. Harvey, 44 Pa. 76, decides only that a lien is good between the parties although not indexed. Had there been a mortgage or judgment the ruling would have been different.</p>

Before James S. Bakerd, Esq., the auditor to distribute the proceeds of the sheriffs sale of the real estate of William B. Graham, including land in Granville township, in execution of judgments held by D. W. Woods and others, the following facts appeared : The land in Granville township was devised to William B. Graham by his father, John Graham, who died in August, 1855, upon, vrvber alia, the condition that William should pay “$200 to my daughter, Mary Jane, her heirs,…

to review a judgment on a verdict for the plaintiff in an appeal from an' award of viewers.

<p>A freight brakeman on a train drawn by two engines takes the risk of the increased strain put upon the couplings, and cannot recover for injuries resulting from the parting of the train.</p> <p>The fact that on other divisions of the same road where the grades are not so steep a pushing engine and stronger couplings are used is, in an action against the railroad company for injuries resulting from the parting of the •train, irrelevant.</p> <p>Where the proximate cause of the parting of a train is the breaking of the couplings, a,nd the application of all the brakes but two, which are out of order, fails to stop the detached section, non sequitur that if the two brakes had been in good order the section would have stopped, or that the failure of the railroad company to have the brakes in good order renders it liable for injuries resulting from the collision of the detached section with the rest of the train.</p> <p>Testimony as to the reckless character of an engineer is inadmissible, unless accompanied by proof that his character was known or might with reasonable care have been known to the railroad company, or that he was negligent on the occasion in question.</p> <p>Note.' — For the standard of safety of appliances required, see note to Drew v. Gaylord Coal Co. 2 Sad. Hep. 340. For the responsibility fur acts of fellow servants, see note to Keys v. Pennsylvania Co. 1 Sad. Hep. 316.</p> <p>For authorities bearing on the duty of master with respect to the employment of competent servants, see editorial note to Smith v. St. Louis & S. F. B. Co. 48 L. B. A. 368. See also editorial note to Kingston v. Ft. Wayne & B. E. Co. 40 L. E. A. 146, presenting the authorities as to his liability for employing a drunkard.</p>

a decree of tbe Orphans’ Court.of Huntingdon County on ex--eeptions to tbe report of an auditor in tbe matter of tbe distribution of tbe assets of tbe estate of Richard Silvertborne, de- • ceased. Held: by our supreme court, in many adjudged cases, that in order to charge lands devised with the payment of a legacy or debts it must appear by direct expression or plain implication, that such was the intention of the testator to be gathered or inferred from the whole will.

The facts as they appeared on the trial, before DeaN, P. J., were stated in the charge, substantially as follows: The issue you are sworn to try is an ejectment brought by Charles Petzlaff, the plaintiff, to recover possession of a portion of a half lot of ground. The title to the whole lot became vested in John IT. Stiffier, by deed from Patrick Doran. In this deed the lot is described as fronting 42 feet on Eighth avenue and running back 120 feet to an alley.

T'be facts as they appeared at the trial before DeaN, P. J., were stated in his charge to the jury, which was as follows: The issue you are sworn to try is an action of debt brought .by William C. Bayley, trustee for Mary E. Peamey, against Daniel K. Peamey. The action is founded on a written instrument which it is necessary to read that you may start with a proper understanding of tire case.

<p>Error to tbe Common Pleas of Blair County to review a judgment for tbe plaintiff on a point reserved in an action of ejectment.</p> <p>Tbe facts as tbey appeared at tbe trial in tbe court below before DeaN, P. J., were stated in bis charge to tbe jury which was as follows:</p> <p>This is an action of ejectment brought by tbe Pennsylvania Canal Company against Levi Delosier and others for a tract of land in Blair township, containing about 129 acres. In 1839 tbe commonwealth commenced tbe construction of tbe eastern reservoir, an improvement designed to store water for tbe use of tbe Pennsylvania canal. Tbe bed of tbe reservoir was located on tbe southwest branch of tbe Juniata river, about 1% miles south of tbe main line of tbe canal, with which it was connected by a feeder. Tbe whole area of tbe reservoir is about 539 acres, 300 acres of which, tbe portion immediately at and adjoining tbe breast, was purchased by tbe commonwealth from Judge Joseph McCune. Tbe remaining portion immediately adjoining tbe McCune tract belonged, at tbe time of tbe construction of tbe reservoir, to Dr. Shoenberger, John L. Ingram, Patrick McOloskey and, perhaps, to other owners. That which belonged to Dr. Sboenberger, to tbe extent of 129 acres, is tbe portion in dispute.</p> <p>Tbe defendants on tbe evidence bere bave whatever title or right to tbe possession remained in Sboenberger, or those claiming under him, after tbe abandonment of tbe reservoir; and tbe plaintiff has whatever right or title tbe commonwealth bad or acquired from Sboenberger at tbe time of tbe construction of tbe reservoir.</p> <p>It is admitted on both sides that tbe reservoir was abandoned and tbe water drawn off in 1881 or 1882. Tbe issue turns, it .seems to us, upon a question of law which is entirely for tbe court. At tbe time of tbe original laying out of tbe reservoir, as shown by tbe map of Morris, chief engineer, filed in tbe auditor general’s office in 1839, tbe land intended by tbe commonwealth to be embraced within tbe area of tbe reservoir included this land in dispute.</p> <p>Thomas T. Wierman, in charge of tbe construction of tbe work, ran tbe line of tbe land intended to be embraced within tbe boundaries in 1816 or 1847. This line, be testifies, was run so as to include all land which might be covered by water at tbe height of four feet above tbe overflow or waste way at tbe breast of tbe dam, and included so much of Shoenberger’s land as is now in dispute. This, as nearly as be remembers, was in 1846 or 1847 that be ran that line, after or about tbe time tbe work was completed. At tbe time of tbe construction of the reservoir much of tbe Sboenberger tract was covered with timber. This, under tbe direction of tbe commonwealth’s officers, was cleared off; and although Shoenberger took the timber, it was claimed by tbe commonwealth; and as it formed part of tbe compensation to be paid to tbe contractors for clearing they were allowed $700 for it.</p> <p>According to tbe testimony of Wierman, surveys and maps of tbe whole 539 acres were made by him, including tbe Sboenber-ger portion, and transmitted to tbe canal commissioners. Search has been made for these maps, but they bave not been found and are not produced bere. Wierman testifies to tbe running of tbe lines and tbe making of tbe maps, and be remembers distinctly of transmitting them by stage in a tin case to the commonwealth’s officers at Harrisburg.</p> <p>On March 6, 1847, Sboenberger made application to tbe canal commissioners for compensation for tbe damages caused by the taking of these 129 acres; and $2,450 were awarded him in full, and that amount was paid to him. Whatever the commonwealth did, by way of taking land for the purpose of this reservoir, was done under and by authority of the legislation of. 1836 and subsequent statutes for the construction of public works, or internal improvements, between the west and the east. The reservoir was not a distinct improvement, it was part of the canal just as much as any other portion not the actual boat channel was part of the canal. The legislation authorizing the construction of the canal authorized the construction of sufficienl reservoirs to make the canal navigable in dry seasons. It is not. material that the construction of canal and reservoir were not simultaneous. The reservoir might be constructed years after the completion of the main channel, under the authority of the general legislation authorizing the construction of the internal improvements.</p> <p>Under our present impression of the law we instruct you that if the commonwealth in fact appropriated this land for the purpose of the reservoir, then it took an absolute estate in the land in perpetuity, and that estate is vested in this plaintiff.</p> <p>The question, then, is: Did the commonwealth appropriate this land ? It was not necessary it should have a deed. It was not necessary it should actually make permanent monuments upon the ground to show the extent of its claim. The map of Morris, the subsequent surveys of Wierman and Garrigues verifying that map of Morris, and the testimony of Wierman showing that he ran the lines and made maps himself at the time show conclusively that it was intended by the commonwealth to appropriate this land up to the line four feet above the water level at the waste weir of the reservoir. This testimony is not disputed; and we say to you that that was sufficient appropriation of the land to give title to the commonwealth, to the extent to which it could acquire title under the legislation then existing.</p> <p>On the part of the defendants it is argued that an estate in perpetuity was not taken; that the commonwealth was the owner only of that portion of the land which formed the bed of the canal proper, and that the statute expressly stipulated that nothing but an easement could be acquired to any land taken for any other purpose; and as the reservoir formed no part of the bed of the canal on its abandonment the land reverted to the former owners, and therefore there can be no recovery in this case; or that, at most, tbe plaintiff cannot recover for more land than was embraced within the water line from the sluice, being about eighty acres. We desire to give a further examination to this question, and we therefore reserve our answer to this point made by the counsel for the defendants.</p> <p>The counsel for the defendants has also submitted the following written points:</p> <p>1. The commonwealth, being the owner of the McCune tract, .and having erected thereon a dam whereby the water backed on the land, did not acquire a fee iri any part of said land.</p> <p>Ans. This point is reserved.</p> <p>2. If, in fact, the canal commissioners only appropriated the right to back water upon the land of Dr. Shoenberger, leaving to him the use of the land consistent therewith, the plaintiffs ■cannot recover.</p> <p>Ans. The evidence shows, without dispute, that the commissioners undertook to appropriate the land. The point is denied.</p> <p>3. If the commonwealth, in fact, appropriated only so much ■of the land of Dr. Shoenberger as is embraced by the water line •from the sluice, about 80 acres, as is shown by Mr. Garrigues, the verdict cannot exceed that line.”</p> <p>Ans. This point is denied.</p> <p>4. There being no description of the land in the petition or receipt and nothing thereon from which a survey could be made, the plaintiff cannot recover.</p> <p>Ans. This point is denied.</p> <p>Verdict directed for the plaintiff for the land described in the writ, subject to the opinion of the court upon the point reserved.</p> <p>Afterwards the court filed the following opinion:</p> <p>It is not disputed that the commonwealth did, by the construction of the breast of the dam or reservoir upon the land purchased from McOune, back the water over the land of defendants, at that time the property of Peter Shoenberger. . Perhaps the mere backing of the water, without more, would have given no title to the commonwealth. But in considering this question we cannot leave out of view the other undisputed facts in the ■case.</p> <p>These facts were clearly proven and were not disputed: The ■canal commissioners established as the area to be appropriated so muck land as would be covered by a water line four vertical feet above tbe waste weir at tbe western end of tbe reservoir. Tbe evidence showed beyond dispute that sucb a water line would embrace or include tbe land in controversy. Two maps were put in evidence certified from tbe auditor general’s office: one made in 1839 by Elwood Morris, and one made in 1840 showing tbe McCune survey. Tbe water line proposed on each of these maps for tbe reservoir afterwards constructed would take in this land, but tbe one made in 1840 did not purport to plot tbe entire reservoir site. Tbe deed from McCune to tbe commonwealth in 1841 specifies tbe water line as 4 feet in height above tbe water way at western end of dam. In 1846 Thomas Wierman, engineer for tbe state, ran tbe line around tbe entire reservoir tract and made notes of bis survey; be marked tbe line with stakes; be ran tbe line on tbe Sboenberger tract and others; made maps of bis work and transmitted them to tbe commissioners.</p> <p>These maps are now lost, but a map of tbe line on Shoenber-ger’s land was made at bis, Shoenberger’s, request, who made an application to tbe canal commissioners for damages, claiming damages per acre for 128 acres. He was awarded $2,460, and afterwards took tbe timber from tbe land, which, added to tbe $2,460, made about $25 per acre for tbe 128 acres. Tbe number of acres in tbe tract now in dispute, by exact measurement, is 129 acres and 42 perches. A large portion of tbe land during tbe existence of tbe reservoir was constantly flooded. Sometimes it would be flooded back to tbe 4-foot vertical water line and cover tbe whole. From a survey made by Mr. Garrigues, engineer, a map of which was put in evidence showing tbe line run by Mr. Wierman in 1846 to correspond with tbe present 4-foot vertical line above tbe water way at western end of dam.</p> <p>This evidence was not contradicted; tbe credibility of the witnesses was not questioned. It shows more than a mere flooding of defendants’ land by backing tbe water; it shows a distinct, unequivocal appropriation of tbe land by tbe commonwealth for reservoir purposes; and if this appropriation was by authority of law tbe fee of this tract, 129 acres and 42 perches, was vested in tbe commonwealth, and by tbe sale of the main line in 1851 passed to tbe plaintiff.</p> <p>Tbe acts of April 11, 1825, P. L. 238; April 9, 1827, P. L. 192; March 24, 1828, P. L. 221; March 21, 1831, P. L. 181; July 19, 1839, P. L. 631; and January 21, 1846, with the constructions put upon them in Com. v. M’Allister, 2 Watts, 197; Haldeman v. Pennsylvania C. K,. Co. 50 Pa. 425; Pennsylvania Canal Co. v. Harris, 12 W. N. C. 432, clearly gave the canal board authority to appropriate this land for canal purposes. The mode of appropriation was sufficient to invest the commonwealth with the fee; and as a consequence of the sale of the public works in 1857 this plaintiff took the same title held by the commonwealth.</p> <p>It follows, then, if this land was flooded by the commonwealth, after an authorized appropriation of it by its officers, the defendants have no title or right of possession.</p> <p>This point is denied.</p> <p>Judgment was accordingly entered for the plaintiff.</p> <p>The assignments of error specified respectively the answers to the defendants’ four points, and the action of the court in directing a verdict for the plaintiff.</p> <p>The title of the plaintiff below depends entirely upon the statute and the payment of damages to Dr. Shoenberger, under whom both parties claim. The defendants below contend that the commonwealth acquired but an easement in the land, and that as it has been abandoned the land is now open to their unrestricted enjoyment, they having succeeded to the title of Dr. Shoenberger.</p> <p>Although the statute of 1827, in connection with that of 1826, gave a fee to the bed of the canal it was a determinable fee — to cease on the abandonment of the canal. Judge PeabsoN, who well understood the general sentiment, says in Haldeman v. Pennsylvania C. P. Co. 50 Pa. 432, that he was constrained by Union Canal Co. v. Young, 1 Whart. 410, 30 Am. Dec. 212, and Com. v. M’Allister, 2 Watts, 190, to hold the title a fee simple absolute, although it did not accord with his views and was in conflict with the opinion of the legal profession through the state, and the habits and practices of the people.</p> <p>And even so lately as the case of Wyoming Coal & Transp. Co. v. Price, 81 Pa. 156, the present chief justice declares that if the question were res integra it would be otherwise decided. The doctrine of an absolute fee in the bed of the canal is, of course, now protected by the rule of stare decisis.</p> <p>But tbe act of 1827, while it changed, the mode of redress for cutting the canal through the owner’s land, extended the remedy to injuries “by interfering in any manner with his rights of property.”</p> <p>Bedress for injuries by cutting the canal through the land was to be by giving up the fee upon compensation by the state. The act is silent with regard to any interest the state might acquire through compensation for any other interference with the rights of property. The inference is legitimate that the state did not intend the acquisition of a fee by any such interference. Com. v. Snyder, 2 Watts, 418; Vanhorne v. Dorr anee, 2 Dali. 316, 1 L. ed. 396, Bed. Gas. No. 16,857.</p> <p>There can be no doubt that all parties understood the damages to be put compensatory of an easement.</p> <p>Assuming that the commonwealth would take a fee it was necessary for the plaintiff to define the land appropriated. No description of the land was made. There were no enduring memorials of what was actually taken, as there would be when the land is taken for the canal. The bed and berme bank would mark the limits. There were no marks showing the water line. The effort was to fix a line from the deed of McCune whiefi established the line of the purchase from him by assuming a level four feet vertical above the bed of the waste way.</p> <p>The fact was that it required a flood to raise the water to the level of the waste way. At the ordinary stage of water Shoen-berger’s land was almost clear. The adjoining owners cultivated their land. The fact that in making the purchase from McCune they bounded the land by a water-level line was not even admissible evidence of the Shoenberger line. It might have been 50 feet above the waste way on the McCune purchase, but it would not follow that the same line would apply to the owners above who were paid damages. The question of location is essentially a question of fact, and it should have been left to the jury to determine what land was actually appropriated.</p> <p>The acts of assembly and all the authorities were reviewed in the case of Wyoming Coal & Transp. Co. v. Price, 81 Pa. 174, and it was held that whenever land was taken for permanent use, under the acts in question, the commonwealth acquired an estate in perpetuity.</p> <p>Two kinds of occupation were plainly in view, — one permanent and continual; the other 'temporary or of limited duration, such as might be required for the deposit of materials, or accommodation of the workmen, while the canal was in process of construction ; the former of the land occupied by the canal and its necessary works, and the latter of that required to be used only during the period of construction. Haldeman v. Pennsylvania C. R. Co. 50 Pa. 425; Craig v. Allegheny, 53 Pa. 479.</p> <p>The fact that all the land was not continuously flooded, or the permissive occupancy of a small portion of the land by Shoen-berger, or his successors, occasionally for pasture, did not affect the title of the commonwealth. Such occasional possession or permissive occupancy was not a hostile or adverse holding, it was in subservience to the commonwealth’s title. Union Canal Co. v. Young, 1 Whart. 425, 30 Am. Dec. 212; Buckholder v. Sigler, 7 Watts & S. 159; Craig v. Allegheny, 53 Pa. 477.</p> <p>It was held in Pobinson v. West Pennsylvania R. Co. 72 Pa. 316, that the commonwealth acquired the fee in the basin also, the portion excepted in the Robinson deed, although the basin was not defined or described, but merely occupied and no damages were assessed or paid and no release given.</p> <p>There was a more exclusive dominion exercised over the reservoir than over the canal itself; for during a portion of the year there was no water in the canal, and it was not used for purposes of navigation.</p> <p>Under the act of 1826 the jury were required to value the land and damages. The act of 1827 made no essential change in this respect. Under either act consequential damages could be allowed.</p> <p>In Com. v. Snyder, 2 Watts, 418, there was no appropriation of complainant’s land, no defining of it by a property line. It was a case of consequential damages. The ownership of land was not under consideration.</p>

D. Burlingame, supervisor of Shippen township. The appeal from the settlement was filed May 8, 1885; subsequently a rule was granted to show cause why the same should not be stricken off because not filed within thirty days after the settlement as required by the act of April 15, 1834. An issue was framed wherein Burlingame was plaintiff and the township was defendant and evidence was introduced to contradict the date of the auditors’ report as made by them.

S. Lewis, supervisor of Shippen township. Tbe facts of this case were similar to those in tbe case of Shippen Twp. v. Burlingame, a/nte, 258, and tbe two cases were argued together.

<p>Appeal from a decree of the Orphans’ Court of Luzerne County confirming absolutely a sale of decedent’s real estate for the payment of debts.</p> <p>Before L. B. Landmesser, Esq., the examiner to whom the petition of Mary Mangan, widow and administratrix, for the sale of Michael Mangan’s real estate for the payment of his debts was referred, the following facts appeared:</p> <p>Michael Mangan, March 10, 1874, entered into a written contract with Charles Pugh, for the purchase of the lot of land described in the petition, for the price of $5,700, payable: $500 down; $560 November 1, 1874; $464 April 1, 1875, and the balance in semi-annual payments of $464 each, on the first day of October and April in each year until all said sum should be paid, with interest to be paid annually on the whole sum unpaid from date of contract, confessing judgment for said sum of $5,700, and waiving inquisition of real estate and the benefit of all exemption laws.</p> <p>Michael Mangan went into possession of the property and made the following payments: $500, on March 10, 1874; $564.50, on November 7, 1874; $464, on April 1, 1875, and the interest to that date; and $464, on October 5, 1875.</p> <p>He died intestate and insolvent July 21, 1880, seised and possessed of an equitable interest in the land, and leaving to survive him a wife, the petitioner, Mary Mangan, and the following children, — to wit, John J., Thomas E., Dennis A., Ellen, Mary, Michael, and James.</p> <p>Letters of administration upon the estate were duly granted to Mary Mangan, his widow.</p> <p>At date of tbe decedent’s death, there was still due upon the contract $4,944.13. His indebtedness exclusive of the purchase money amounted to $11,079.14, while his personal property amounted to only $1,078.36.</p> <p>G-. W. Cunningham had recovered a judgment against the decedent in his lifetime, and November 4, 1881, issued a scire facias upon the judgment against Mary Mangan, administra-trix. October 8, 1883, upon the verdict of a jury a judgment was entered in favor of the plaintiff, in the sum of $1,917.27.</p> <p>January 8, 1881, Charles Pugh brought an action of debt upon the contract against Mary Mangan, administratrix. The summons was duly served, and January 31, 1881, judgment was entered for want of an appearance for $5,055.26. No notice was served upon the heirs.</p> <p>March 8, 1881, a fieri facias issued upon the judgment in favor of Pugh, and, the administratrix having waived inquisition and exemption, the land was levied upon and sold, by the sheriff, April 9, 1881, to Charles Pugh, the plaintiff, for $1,455, and a deed for the same was acknowledged by the sheriff in open court, May 9, 1881.</p> <p>By deed dated May 14, 1881, acknowledged the same day, and duly recorded, Charles Pugh conveyed said land to Mary Mangan.</p> <p>January 15, 1886, Cunningham issued a writ of venditioni exponas upon his judgment, by virtue of which the sheriff seized and took in execution the right, title, and interest of decedent in the land, and advertised the same for sale.</p> <p>March 4, 1886, John Mangan, a son and one of the heirs of said decedent, presented his petition to the court of common pleas, setting forth that the personal estate of said decedent was insufficient to pay all the just demands upon his estate, and praying the court to stay the execution issued upon the judgment of Cunningham until the administratrix made application to the orphans’ court for the sale of the decedent’s real estate; whereupon the court of common pleas ordered the writ to be stayed, on condition that the administratrix make an application for the sale of decedent’s real estate to the orphans’ court on or before March 6, 1886, and further ordered that said ad-ministratrix malee said application as aforesaid.</p> <p>This petition was then filed, under protest, by the administra-trix.</p> <p>Tlie petitioner admitted that the sale upon execution o-f the Pugh judgment was void as to the heirs of the decedent, but ■claimed that it was good as to his creditors.</p> <p>It was also conceded that if no title whatever passed to the purchaser at said salé it was the duty of the orphans’ court to order a sale of the equitable interest of decedent in said land for payment of debts.</p> <p>The examiner stated, as follows, the law applicable to the case:</p> <p>Prior to the act of February 24, 1834, a creditor could sell the real estate of a decedent upon a judgment obtained against an administrator or executor without warning to the heirs. To remedy this imperfection in the law, and also to prevent any collusion between an administrator or executor and a creditor, whereby parties interested in said decedent’s estate, would be deprived of their rights, the act of February 24, 1834, was passed, and in § 34 of said act it was provided, that “in all actions against executors or administrators of a decedent who shall have left real estate, where the plaintiff intends to charge such real estate with the payment of his debt, the widow and heirs or devisees and the guardians of such as are minors, shall be made parties thereto, . . . and if notice of such writ shall not be served on such widow and heirs or devisees and their guardians the judgment obtained in such action shall not be levied or paid out of the real estate of such widow, heirs, or dev-isees.”</p> <p>That is, it shall not be levied or paid out of the real estate which descended to them from the decedent or debtor. Murphy’s Appeal, 8 Watts & S. 165.</p> <p>It is only by a full compliance with this act of assembly that a creditor can charge the real estate of decedent with the payment of his debt.</p> <p>Pugh having brought his action on the case against the ad-ministratrix of Michael Mangan and obtained judgment thereon against her alone, and the heirs not having been warned by scire facias as is required by said act of assembly, he was prohibited from selling the real estate of said decedent, as the said act says no execution shall issue until after notice has been given to the heirs, etc., and the sale made upon said judgment without having warned the heirs, etc., is absolutely null and void and passed no title to the purchaser. Leiper v. Thomson, 60 Pa. 177, and cases there cited; Walthaur v. Gossar, 32 Pa. 259.</p> <p>Not only must there be a legal judgment but a legal execution also to make a sheriff’s sale valid. Pugh having issued an execution upon a judgment against the administratrix alone, without first having given notice to the heirs, which he is prohibited from doing by said act of assembly, he stands as a purchaser at sheriff’s sale under a void process, and he gets no title whatever at said sale; consequently Mrs. Mangan, the vendee of Pugh, gets no title; and the equitable title to said lands still remains in the estate of Michael Mangan, deceased, and is in precisely the same condition it was in at the instant Michael Man-gan died.</p> <p>The proposition advanced by counsel for petitioner that while this sale is void as to heirs, it is good as to creditors, cannot be sustained for a moment; for how can they be affected by a sale made upon a void process ? Lands descend to heirs and not to administrators. Haslage v. Krugh, 25 Pa. 97.</p> <p>At the instant Michael Mangan died his equitable interest passed to his heirs,- — that is, they had a contingent interest therein defeasible in behalf of creditors.</p> <p>When on the 20th day of July, 1880, Michael Mangan died intestate and indebted, his personal estate passed by operation of law to his administratrix, in trust primarily for creditors;, and his equitable interest in said land descended to his seven heirs, subject to the jurisdiction of the orphans’ court to reclaim it for purposes of conversion into money to pay debts which the. personalty should prove insufficient to pay. ITorner v. Has-brouck, 41 Pa. 179.</p> <p>At the moment of an insolvent’s death the rights of the creditors become fixed, and they are to be regarded, not as creditors, but as equitable owners. Oairns’s Estate, 13 Phila. 350.</p> <p>The creditors of'Michael Mangan have, therefore, such an interest in his real estate that they stand upon an equal footing ■with his heirs; for if it were not so the orphans’ court would be stripped of its jurisdiction by said sale and the creditors would be deprived of the privilege of enjoying the fruits of a full administration of their debtor’s estate.</p> <p>Considerable stress was laid by counsel for petitioner upon the case of Biland v. Eckert, 23 Pa. 215, where it was held that, a sale of lands upon a judgment obtained against an administrator is not void as to others than heirs and devisees, that though the latter may not be concluded by the judgment, strangers and intruders may not treat it as void on account of want of notice to the heirs.</p> <p>But that is not an analogous case, for there the contest was not, as in this case, between a purchaser at sheriff’s sale and a creditor of the decedent, but between the purchaser and a party setting up a title independent of any the decedent had in his lifetime, one who was not interested in the decedent’s estate, either as heir or devisee or vendee of an heir or devisee, or as the creditor of the decedent.</p> <p>In addition to all this Mrs. Mangan, either in her own right or as administratrix, does not stand in a position to say that the estate of the decedent has no interest in said land, and that, therefore, there is nothing that the orphans’ court can order to be sold. Bor the very application and affidavit upon which the court of common pleas compelled her to make application to the orphans’ court for sale of said lands was made by John Mangan, a son, and one of the heirs of said decedent; and it is admitted on her part that the sheriff’s sale upon the judgment of Pugh against her was null and void as to the heirs.</p> <p>The examiner reported the following conclusions of law:</p> <p>1. The sale by Pugh upon his judgment against the adminis-tratrix alone was null and void, not only as to the heirs, but also as to creditors.</p> <p>2. No title whatever to the equitable interest of the decedent in the land passed to the purchaser of said sale, and therefore Mrs. Mangan, the vendee of said purchaser, received no title to the same.</p> <p>3. All that Mrs. Mangan received by her purchase from Pugh was the legal title still existing in him and the right to receive the balance of purchase money due upon his contract.</p> <p>4. The orphans’ court has complete jurisdiction in this matter, and it is the duty of the court to order the land to be sold for the payment of the debts of decedent.</p> <p>The examiner therefore recommended that .an order be granted directing the administratrix, the trustee, to sell the interest of decedent in the land described in the petition for the purpose of paying his debts, subject to the amount of purchase money due Pugh at the time of decedent’s death.</p> <p>Upon overruling exceptions to tbe examiner’s report and entering a decree in accordance with his recommendation, RnoNn, P. J., delivered the following opinion:</p> <p>We have concluded to confirm the report of the examiner and make the following argument in addition to what he has stated. It is shown by KeNNEdt, J., Murphy’s Appeal, 8 Watts & S. 168, that § 34 of the act of 1834, under which this dispute arises is not clear when read literally, and hence it “must receive a reasonable construction and be interpreted according to the subject-matter of it instead of adhering to the letter,” but, it seems to us that hoth the letter and the spirit of the act require notice from the intestate’s creditors to the widow and heirs of an intestate before the land can be sold on an execution from the common pleas.</p> <p>The real estate of every decedent belongs to his widow, heirs, or devisees; and hence the letter of the act cannot be complied with, in any case, without a judgment against them. No judgment against an administrator alone can be “levied or paid” out of any decedent’s real estate if -the letter of the act is to be adhered to, and no judicial authority has been produced or found to the contrary unless it be ftiland v. Eckert, 23 Pa. 215, which we shall discuss further on.</p> <p>It was decided in Leiper v. Thomson, 60 Pa. HI, that where real estate is devised to executors to sell, the widow and legatees interested in the fund are not entitled to the notice for the reason that the executor thus becomes the owner of the land for purposes of sale and because under the terms of such a will the real estate becomes converted into personalty.</p> <p>The spirit of the act has been extended so as to include the alienee of an heir or devisee. Soles v. Hickman, 29 Pa. 342, 72 Am. Dec. 635.</p> <p>The reasoning of all the cases under this section is twofold: First, that the land shall not be taken from its owners (the widow, heirs, or devisees) by executor, without a judgment against them; and, second, that it shall not be in the power of the personal representative of a decedent to conspire with any real or pretended creditor to sacrifice the estate. It has been said that the act “was designed to protect the estates of dead men from those collusive judgments which are sometimes concocted between faithless administrators or executors and pretended creditors;” and we see equal reason for protecting creditors of a decedent from collusion between faithless administrators and tbe widow, heirs, or devisees of dead mem If such sales as the one in question must be allowed to stand as valid against all of the decedent’s creditors, then we can conceive of no better method to sacrifice the real estate of decedents, for all bidders at such sales are bound to know that the sale would be void at the election of the heirs and widow or any purchasers from them. The widow and heirs might bid against creditors and then repudiate the sale afterwards. In all cases they would reap the fruits of the sale and keep the land too.</p> <p>The result in all such cases would be that the widow and heirs would get the land at their own price,' or repudiate the sale, which must inevitably jeopardize the interests of all creditors, including the plaintiff in the execution.</p> <p>After a judgment against the widow and heirs, a sheriff’s sale would bind all parties; and competition between bidders would prevent any sacrifice or unfairness. All parties interested would be in equal position.</p> <p>It is admitted that in such cases the title of the widow and heirs would not pass; and this being so, no title could pass, for no one else has any. The interest of the creditors of an estate is not a title but a lien; and how can their lien be devested by a sale which passes no title?</p> <p>There must be a judgment against tire heir as such before a valid levy can be made on the land. Atherton v. Atherton, 2 Pa. St. 112.</p> <p>The act means that the judgment obtained against the administrator alone shall not be paid by force of an execution issued thereon against the lands. Murphy’s Appeal, 8 Watts & S. 165.</p> <p>The act is a rule of action and not of lien. Sample v. Barr, 25 Pa. 451.</p> <p>These are some of the dicía of the cases. The only adjudicated case looking toward any other conclusion than the one at which we have arrived is Biland v. Eckert, 23 Pa. 215, and yet that case decided no more than that while such a sale may be void, as between parties immediately interested, it cannot be so treated by a mere stranger to the estate.</p> <p>Such a sale may not be absolutely void, but certainly is relatively void in the sense in which those terms are defined in Seylar v. Carson, 69 Pa. 81.</p> <p>If the creditors of a decedent, as also all his heirs, are satisfied with such a sale, it may well be held that a mere stranger shall not be allowed to question it, and yet not disturb the principle or rule which we have undertaken to establish.</p> <p>The question here is not whether the sheriff’s sale is void or only voidable between the purchaser and the heirs, but whether it is not voidable between the purchaser and the other creditors of the decedent. The land in question either belongs to the purchaser at the sheriff’s sale or his alienee, or else it belongs to the heirs as heirs, and if to the latter, it must still be subject to the debts of their ancestor. It cannot be that the whole title to the land hangs in any such balance as will permit the rights •of the creditors to stand on the election of the widow and heirs alone.</p> <p>The exceptions to the report of the examiner are dismissed and the report is confirmed absolutely. A sale of the interest of the decedent in the land described will be ordered on presentation of a decree by counsel. The costs of this proceeding to be paid by the exceptant.</p> <p>The assignments of error specified the action of the court in ordering the sale, and in subsequently confirming it absolutely.</p> <p>Notice to the widow, heirs or devisees, etc., is not a statutory requisite of title independent of their interest in the land. The ■section referred to was only intended for the benefit of widow, heirs and devisees, and only prohibits a sale by execution of their interest without notice to them.</p> <p>Formerly a sale of real estate on a judgment obtained against the administrator for a debt of the decedent without joinder of heirs, etc., would devest their interest without affording them an •opportunity to contest the judgment.</p> <p>To remedy this imperfection in the law, and for no other purpose, § 34 of the act of February 24, 1834, was passed. It •operates solely for the benefit of widow, heirs, and devisees or their alienee, — not for the benefit of creditors. They are neither within the letter nor the reason of the act.</p> <p>The mischief sought to be remedied was the danger to heirs and devisees in the negligence or collusion between the personal representatives (often strangers to them) and claimants against ■decedents’ estates. Sergeant v. Ewing, 36 Pa. 156.</p> <p>The sole object and meaning of the statute in bringing in the heirs, is “to enable them to contest the lien or disprove the debt.” They alone are within tire protection of the statute or can avail themselves of it. Biland v. Eckert, 23 Pa. 215; Leiper v. Thomson, 60 Pa. 177; Shontz v. Brown, 27 Pa. 123; Murphy’s Appeal, 8 Watts & S. 165 ; Stewart v. Montgomery, 23 Pa. 410; McLaughlin v. McCumber, 36 Pa. 14.</p> <p>The requirement of notice to widow, heirs, or devisees “is not a statutory requisite of title independent of any interest of the widow and heirs.” Leiper v. Thomson, 60 Pa. 177; Stewart v. Montgomery, 23 Pa. 410; and Biland v. Eckert, 23 Pa. 215.</p> <p>Such sale is not absolutely void, but voidable by them alone, and by no other persons.</p> <p>A sheriff’s sale of decedent’s lands without notice to heirs, etc., has every effect of a valid sale, except to devest their interest without their consent — and that consent may be evidenced by matter in pais.</p> <p>Here, the widow was also administratrix, and the sheriff’s sale, on the Pugh judgment against her as administratrix, passed her life interest as widow.</p> <p>Where heirs have taken any benefit under the sale on judgment against the administrator alone, they are concluded. They may elect to affirm the sale, in which case it is valid. Smith v. Warden, 19 Pa. 424; Stroble v. Smith, 8 Watts, 280; Seylar v. Carson, 69 Pa. 81; Pearsoll v. Chapin, 44 Pa. 9.</p> <p>This is precisely what the widow has done in the case at bar by her purchase from the sheriff’s vendee.</p> <p>A judgment creditor who was present at such sale as a bidder had no standing after the acknowledgment of the sheriff’s deed to require a resale of the same land: (1) Because his lien was discharged by the sale; (2) because he is estopped from denying the validity of the sale he might have prevented, but encouraged and participated in. Pry’s Appeal, 8 Watts, 253; Clauser’s Estate, 1 Watts & S. 208; Benner v. Phillips, 9 Watts 6 S. 13; Act of February 24, 1834, §§ 20, 35, 36; Purdon’s Digest, 530, 531, pi. 113, 114, 120; Everman’s Appeal, 67 Pa. 335; Murphy’s Appeal, 8 Watts & S. 168; Wilson v. Bigger, 7 Watts & S. Ill; Crowell v. Meconkey, 5 Pa. 168; Adlum v. Yard, 1 Bawle, 162, 171, 18 Am. Dec. 608; Stroble v. Smith, 8 Watts, 280; Bidwell v. Pittsburgh, 85 Pa. 412, 27 Am. Bep. 662; McKnight v. Pittsburgh, 91 Pa. 273.</p> <p>An administrator has an interest in the lands of his intestate, It is upon this interest that the liens of decedent’s debts attach: and a sheriff’s sale on a judgment against the administrator alone passes his interest and discharges the liens.</p> <p>There is a true transmission of title of land to executors and administrators so far as the same may be found necessary to pay debts and legacies. Soles v. Hickman, 29 Pa. 342, 12 Am. Dec. 635; Cairns’s Estate, 13 Phila. 350.</p> <p>What really vests in the heir is a title to the residuum, or in the language of our act of 1834, the “surplusage” of the estate. This is what the law casts upon the heir. It can be nothing else consistently with our system of administration and distribution. Horner v. Hasbrouck, 41 Pa. 169.</p> <p>So long as debts remain for the payment of which the lands of the decedent might be taken — for so long the title of the heir remains in abeyance and secondary to the paramount title of the administrator.</p> <p>A creditor who has no judgment against the debtor, at or before his decease, must, in order to make a sale of the real estate valid and effective, obtain a judgment not only against his personal representative, but likewise the widow and heirs. The law in the distribution of decedents’ estates subordinates the rights of the widow and heirs to those of creditors.</p> <p>As an administratrix has no interest in lands a sheriff’s sale upon a judgment recovered against her as administratrix cannot devest the liens of judgment creditors regularly recovered in the lifetime of the debtor.</p> <p>The creditors have no security for a proper distribution of the money realized from such a sale. The real estate goes to the heirs, subject to the payment of debts, and the personal estate to the legal representatives, consequently the sureties in an administration bond are not liable for the real estate. M’Ooy v. Scott, 2 Rawle, 222, 19 Am. Dec. 640.</p> <p>The levy made upon an execution issued on a judgment where this had not been done was set aside by the court in Atherton v. Atherton, 2 Pa. St. 112.</p> <p>A purchaser takes no estate where this rule has been disregarded. Sample v. Barr, 25 Pa. 459; McCracken v. Roberts, 19 Pa. 395.</p> <p>The sale in the orphans’ court, being at John Mangan’s in-</p> <p>stance and for bis benefit, must be presumed to bave taken place with bis consent; and be is estopped from saying tbat be did not elect to treat tbe execution sale on tbe Pugb judgment as void and ineffective. Simmonds’s Estate, 19 Pa. 441.</p> <p>Riland v. Eckert, 23 Pa. 215, decides tbat a stranger cannot assail the validity of a title acquired by a sale on a judgment against tbe administratrix alone, with whom tbe heirs are not joined.</p> <p>Tbe legal definition of stranger is a person who is not privy to an act or contract. Bouvier, Law Diet.</p> <p>A judgment lien creditor of an estate is not a stranger to it in tbe legal sense of tbe term.</p>

<p>Error to the Common Pleas of Cumberland County to review a judgment on a verdict for plaintiff in an action of covenant.</p> <p>Plea, covenants performed, etc.</p> <p>The only assignment of error was based on the answer of the court to plaintiff’s first point which was as follows:</p> <p>The evidence produced by the defendant under the offer to show that plaintiff made fraudulent representations to the defendant, which were relied upon by the defendant, and except for which defendant would not have executed the lease of August 31, 1885, wholly fails to make good the offer under which it was admitted; and being insufficient in law to avoid the lease or affect the plaintiff’s rights thereunder, the court is respectfully asked to strike out all the evidence which was received under said offer, and to instruct the jury to wholly disregard the same.</p> <p>Ans. This request is granted. We do not think that the evidence was so clear and precise that Thudium was induced by reason of the fraudulent representations of Yost to sign the lease as to justify its submission to you for your consideration in the determination of the rights of the parties to this action.</p> <p>The evidence which the court in its said answer declared was not sufficient to justify its submission to the jury was as follows:</p> <p>Jacob Thudium testified:</p> <p>In the month of June, 1885, in the forenoon, Mr. Zeigler, clerk at Woodward’s warehouse (I am well acquainted with him), brought Mr. Yost to my house, and introduced Mr. Yost to me as a landlord in Greencastle. They sat in the room awhile; he told me his business and what he was after. Zeigler said: “He is a landlord from Greencastle; he understands his business well; he wants to rent the Mansion House.” I told him that the house could not be rented unless he consulted with Mrs. Wilder, for she had a lease for another year. I stated to the gentleman that I was wrongfully informed as to the lease, and I went to see Mr. Hepburn and asked him whether it was correct.</p> <p>Mr. Yost and I went over to the Mansion House.</p> <p>Q. By tire Court: This was in June?</p> <p>A. This was in June: I didn’t promise him the house that day; made no arrangements; I said I would consider him along with the rest; there were five or six applicants for the house, provided Mrs. Wilder was willing to quit. Shortly afterwards he came again. Mr. Klink said: “Yost is upstairs with Mrs. Wilder in the parlor,” I should go up. They commenced to talk about buying out. I told it there to Mr. Klink, Mrs. Wilder, and Mr. Yost, that I would lease to Mr. Yost when he would make a bargain with Mrs. Wilder to buy her out. Mr. Yost said that could be easily arranged, that he was willing to buy her out.</p> <p>There was nothing more done that day. Mr. Yost came down stairs and went out, and said he would be back again and try to make arrangements with Mrs. Wilder. He sent for me to come up stairs. I went to the Mansion House and Mr. Klinlc told me, and I went up and found Mr. Yost and Mrs. Wilder in the parlor talking about the appraisement. Mr. Klink said that Yost said he offered her $500. I was not present Klink came down and told me. Mr. Yost came down and I asked him how he made out. He said: “I agreed to buy her out, and gave her $500 under the article of agreement.” This is as far as I know. Mr. Yost went home and sometime in the latter part of August or September, I think, he came to tire house and said I should go along and see Mrs. Wilder. I went with him and he said he had made the arrangement and that Mr. Landis would make an article between Mrs. Wilder and Mr. Yost as regards buying out the furniture. I said I had nothing to do with that, that I hadn’t a dollar’s worth of furniture in the house; “you must deal with Mrs. Wilder.” Then I went around the hotel, I went back to the kitchen and asked Mrs. Wilder whether it was satisfactory to her, if she was willing to get out. She said “Yes.” Mr. Yost then said that when the article is made between him and me, that then Captain Landis would make an article between him and Mrs. Wilder, and then he would pay $500.</p> <p>Q. By the Court: Did he say so, that when the agreement was made between you and him, then he would make an agreement with Mrs. Wilder ?</p> <p>A. He went to Captain Landis, or promised to go there and make that lease. I asked him then when he would pay the $500. He said as soon as the article was made between Mrs. Wilder and Yost, that Captain Landis had an agreement. Before X went up to sign the lease I asked Mrs. Wilder whether it was all right. She said: “You can lease to- him; I am willing to go out; I am tired of it.” I asked Mr. Yost in the presence of Mrs. Wilder in the back yard, how much he must give beside the $500, and he said they would leave it to the appraisers; that Mrs. Wilder would fix one appraiser and Mr. Yost the other, and those two would get another, and that they would go through the house and appraise the things. Yost had to pay cash for the goods.</p> <p>Q. Then you went and made your agreement, did you?</p> <p>A. Yes, sir.</p> <p>Q. What did you say to Mr. Yost as the reason why you couldn’t give him possession on the first of April ?</p> <p>A. Mrs. Wilder would not give him the house unless he paid the money. She would not give up possession.</p> <p>Mrs. Elizabeth Wilder testified:</p> <p>Q. You are the present tenant in the Mansion House?</p> <p>A. Yes, sir.</p> <p>Q. Will you please state whether in the summer of 1885 you had an interview with Mr. Yost in reference to the leasing of the Mansion House, and whether or not in his presence and in the presence of Mr. Jacob T'hudium you had a conversation about it, and if so, what was said to him about your lease, and what he was to do ?</p> <p>A. He came there and asked me whether I would sell out to him. I told him I would. He had heard Mr. Kreps was there.</p> <p>Q. Sell out what?</p> <p>A. My furniture. I said I would. He asked if Mr. Kreps was trying to buy, and I told him he was. He asked me what Mr. Kreps had offered. I told him his bargain was 1» take the things at the appraisement, and he would give me $100 as a forfeit. He hooted at that and he said, “That is nothing; I will pay you $500.” I said, “That is all I want, good security.” So he said he would buy me out then. Mr. Thudium was there with him. I said: “Another thing,” I said, “I have got the lease of the house for another year.” He says, “You have?” I said, “Yes, sir.”</p> <p>Q. Who said ?</p> <p>A. Yost. Ho says: “You have the lease of the house for another year ?” I said, “For another year from the first of April.” He says: “You will give up the lease to me?” I says: “Yes, sir; if you buy me out I will give it up.”</p> <p>Q. Was Thudium present when this occurred?</p> <p>A. Yes, sir. Mr. Thudium says: “Whenever you make it satisfactory Avith Mrs. Wilder, I will talk to you about the house. I will rent you the house, but there is no use of my talking to you unless you malee it satisfactory with her .first I have nothing to say unless you do that.” He said: “That is all right; I will make it satisfactory Avith her, if I just get the lease of the house.” After that he never asked me for the lease I had, Mr. Yost didn’t.</p> <p>Q. When was this ?</p> <p>A. I can’t j nst exactly say when it was, but a couple of days after Mr. Kreps was there.</p> <p>Q. It was in the summer of 1885 ?</p> <p>A. Yes, sir.</p> <p>Q. State whether or not he gave you $500, and what he said about it afterwards, or about the time you spoke to him about putting up $500 ?</p> <p>A. They went out I suppose to Captain Landis’ office.</p> <p>Q. When was this ?</p> <p>A. A couple of days after Mr. Kreps was there; I don’t suppose more than two days.</p> <p>Q. When they came back what occurred ?</p> <p>A. When they came back they had an article of agreement made. I told Mr. Yost I wouldn’t make any article of agreement until I saw Mr. Hepburn. I would be willing to sell out, but I wouldn’t make any arrangement until I saw Mr. Hepburn. He went out and got an article made and asked me to sign it. Captain Landis wanted to know why it was that I wouldn’t sign it. I told him that I told Mr. Yost that I wouldn’t sign it unless I saw Mr. Hepburn. He said: “I will read it to you.” I said it wasn’t right; that he had nothing in it about the $500; that he was to pay me $500, as a forfeit. I asked him if he was going to pay it, and he said he wasn’t. I said: “Are you going to give security ?” He said: “You know me; I am good for $500.” I said: “That may be; you may be good for $500, and you may be good for $1,000; but I don’t know you.” He asked me if I would put my name to that paper. I said, “No.” Captain Landis thought it was very strange. I told him I didn’t know they were going to make an article; I told him I wouldn’t sign unless Mr. Hepburn would see the paper.</p> <p>Q. Then the matter was not satisfactorily arranged; he didn’t buy you out?</p> <p>A. No, sir.</p> <p>Alexander Klink testifies:</p> <p>Q. It is agreed that the time Mr. Kreps vras down was on the 29th of August, 1885. State whether you heard any conversation between Mr. Thudium and Mr. Yost as to the leasing of this hotel before the 31st of August, 1885; what it was and where; you are clerk at the Mansion House ?</p> <p>A. Yes, sir; Mr. Yost came down and got off the train sometime in the latter part of August I met him, I think, at the ball door and I told bim to go up in tbe parlor. He said he wanted to see Mrs. Wilder and Mr. Thudium and I sent bim up. I went over to see Mrs. Wilder and got her to go over into tbe parlor. Then I came down stairs, and Mr. Thudium was in the office, and I said: “Mr. Yost is up in tbe parlor.” He says: “I telegraphed to bim,” or something like that; be said be couldn’t have left home since tbe time be telegraphed; be must have come without telegraphing. They got talking there about tbe lease of tbe bouse.</p> <p>Q. Did you go up with bim ?</p> <p>A. Yes, sir; be sat right down near tbe window next tbe veranda. Mrs. Wilder was there, Mr. Yost, Mr. Thudium, and myself. They then got to talking about buying Mrs. Wilder out, and about leasing tbe bouse. Mr. Thudium then remarked to Mr. Yost: “If you buy Mrs. Wilder out, I will lease you the bouse.” Mrs. Wilder told Yost then that Mr. Kreps was down to see about buying her out, and that- be offered to give her $100, as a forfeit. Mr. Yost booted at tbe idea and be says: “I will make it $500.” Mrs. Wilder says: “That is all right; that is all I want.” That is about all tbe conversation I beard there; I went down stairs.</p> <p>Q. State whether or not anything was said about tbe lease ?</p> <p>A. Mrs. Wilder said if be would buy her out she would give bim tbe lease.</p> <p>Q. Did she say bow long it was to run ?</p> <p>A. One year.</p> <p>Q. To what time?</p> <p>A. From’86 to’87.</p> <p>Q. She told bim that?</p> <p>A. Yes, sir. What happened afterwards I don’t know. I was called down stairs to tbe office.</p> <p>Q. Did you hear anything that occurred in tbe office between 'Thudium and Yost?</p> <p>A. I beard a conversation one day in tbe bar-room.</p> <p>Q. Before or after this ?</p> <p>A. That was before. Tbe barkeeper was there and Mr. William Cornman, Mr. Thudium, and Mr. Yost, and myself. Mr. Thudium remarked : “If you buy Mrs. Wilder out, I will lease you tbe bouse; make it satisfactory to her.” That is all' the conversation.</p> <p>Q. What did Yost say ?</p> <p>A. I don’t know wbat be said, more than tbat would be all right, or something to that effect; I don’t remember exactly.</p> <p>Or o ss-exam in ation.</p> <p>Q. Have you given us all the conversation you can remember ?</p> <p>A. Yes, sir; that is all.</p> <p>Q. What were they talking about buying out ?</p> <p>A. Buying the furniture of the house.</p> <p>Q. Mr. Thudium said if Yost would buy the furniture, then he would lease it?</p> <p>A. Yes, sir.</p> <p>Q. When Mrs. Wilder said that her lease ran for another year, what did Thudium say ?</p> <p>A. I don’t know that he made any reply; I don’t remember that he did; he said: “Only so you make it satisfactory with Mrs. "Wilder. ”</p> <p>Q. Did you hear any further conversation between the parties that day at any time ?</p> <p>A. No, sir; I was called to the office to' attend to the business of the office, and I didn’t hear anything more between them.</p> <p>William H. Comman testified:</p> <p>Q. State whether yon heard the conversation between Mr. Thudium and Mr. Yost?</p> <p>A. I did; yes, sir.</p> <p>Q. Who were present?</p> <p>A. Mr. Klink, Mr. Williamson, Mr. Thudium, Mr. Yost, and myself.</p> <p>Q. Where was it?</p> <p>A. It was in the bar-room of the Mansion House.</p> <p>Q. State what it was as near as you recollect?</p> <p>A. They were talking in the Mansion House, and I heard Mr. T'hudium say to Mr. Yost if he would buy Mrs. Wilder’s furniture and make a satisfactory arrangement with her, he would lease him the house. Mr. Yost said he would make everything satisfactory with her.</p> <p>A. C. Yost, the plaintiff, testified on cross-examination:</p> <p>Q. Do you know Mr. John Park, in this town, a butcher?</p> <p>A. Yes, sir; I do.</p> <p>Q. Did you say to him some time in August, 1885, that you knew Mrs. Wilder bad a lease for that bonse for another year, and that you would have to buy her out before you could get a lease from Thudium ?</p> <p>A. Not as I remember of.</p> <p>Q. Do you say you that didn’t say so ?</p> <p>A. Please repeat that question.</p> <p>Q. Did you say to Mr. John Park, in August, 1885, before your lease, that you knew that Mrs. Wilder had a lease on the house for another year, and that you would have to buy her out before you could get a lease from Thudium?</p> <p>A. Not as I remember of, no, sir.</p> <p>John Park testified:</p> <p>Q. You heard the question I just put to Mr. Yost. Just go on and state whether or not any such conversation occurred, and when and where.</p> <p>A. There was a conversation of that kind occurred between Mr. Yost and me in the Mansion House.</p> <p>Q. When?</p> <p>A. It was sometime in August; I don’t know whether it was the beginning of August or the latter part of August.</p> <p>Q. Go on and state what he said.</p> <p>A. He said he had come to lease the Mansion House, but he had found out that he couldn’t get a lease on it unless he could make some arrangement with Mrs. Wilder; that she had a lease for another year on it, and he was going to try to buy her out. I believe they did get together toward the last to make a bargain. That is all the conversation we had at that time. Different times we talked about it.</p> <p>Q. Anything at any other time to the same effect, or anything like it?</p> <p>A. No, sir; not exactly.</p> <p>Other material facts appear in the opinion.</p> <p>Verdict and judgment for plaintiff.</p> <p>Parol evidence is admissible to establish a contemporaneous oral agreement which induced the execution of a written contract, though it may change or reform the instrument; but such evidence must be clear, precise, and indubitable. Spencer v. Colt, 89 Pa. 314; Phillips v. Meily, 106 Pa. 536; Thomas v. Loose, 114 Pa. 35, 6 Atl. 326.</p> <p>A written agreement may be modified, explained, reformed, or altogether set aside by parol evidence of an oral promise or undertaking material to the subject-matter of the contract made by one of the parties at the time of the execution of the writing and which induced the other party to put his name to it. Walker v. Prance, 112 Pa. 203, 5 Atl. 208.</p> <p>No principle has been better settled by a long line of decisions than that parol evidence is admissible to show a verbal contemporaneous agreement which induced the execution of a written obligation, although it may have the effect of varying or changing the terms of a written contract. Brown v. Morange, 108 Pa. 75.</p> <p>Parol evidence is competent where there has been an attempt to make a fraudulent use of the instrument in violation of a promise or agreement made at the time the instrument was signed and without which it would not have been executed. Phillips v. Meily, 106 Pa. 536.</p> <p>To materially vary or contradict a written contract by evidence of a contemporaneous parol agreement it must be alleged that the contract was executed on the faith of the parol agreement. Callan v. Lukens, 89 Pa. 134.</p> <p>Where at the execution of a writing a stipulation has been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which the writing was executed, parol evidence is admissible, although it may vary and materially change the terms of the contract. Greenawalt v. Nohne, 85 Pa. 369.</p> <p>' To pave the way for the admission of oral declarations to vary a written instrument it is not necessary to prove that a party was actuated by a fraudulent intention at the time of the execution'of the writing; for although his original object may have been honest and upright, if to procure an unjust advantage he subsequently denies the parol qualification of the written contract, it is such a fraud as will operate to let in evidence of the real intent and conclusion of the parties to the instrument Lip-pincott v. Whitman, 83 Pa. 246.</p> <p>A verbal promise at the making of a written contract, if made to obtain its execution, may be given in evidence. Graver v. Scott, 80 Pa. 88.</p> <p>When a promise is made by one in consideration of the execution of a writing by another the promise may be shown by parol evidence. Shughart v. Moore, 78 Pa. 469.</p> <p>A verbal promise by one of the parties at the making of a written contract, if it was used to obtain the execution of the writing, may be given in evidence. Powelton Coal Co. v. Mc-Shain, 75 Pa. 238.</p> <p>Conversations and negotiations prior and leading to a written-contract are evidence to prove a fraud or trust. McGinity v. McGinity, 63 Pa. 38.</p> <p>The plaintiff in error also desires to advert to the refusal of the court below to permit him to have the conclusion to the jury, under the pleadings in the case. The pleas were covenants performed and covenants performed with leave, which are affirmative pleas. Middleton v. Stone, 111 Pa. 590, 4 Atl. 523, and cases there cited.</p> <p>The plea of covenants performed with leave is an affirmative plea. Zeuts v. Legnard, 70 Pa. 192.</p> <p>Under this plea the affirmative of the issue is thrown upon the defendant and with it the right to conclude to the jury. Norris v. Insurance Co. 3 Yeates, 84, 2 Am. Dec. 360; Richards v. Nixon, 20 Pa. 19; Gebhart v. Francis, 32 Pa. 78; Abbott v. Lyon, 4 Watts & S. 38; Troubat & II. Pr. § 1533. See 4 Rawle, 283.</p> <p>To collect or even to classify the cases in which this court has admitted parol evidence as a defense in actions founded on written contracts would be impossible and useless. They are found in almost every report. Many of them are in cases in which it was permitted to prove parol de-feasance against a deed absolute on its face. This has been changed by the act of June 8, 1881.</p> <p>Another class of eases is where the consideration named in the contract has been shown by parol evidence to include something that was not expressed in the written paper, and to prove that the recited consideration had failed. It is also admitted to prove identity of persons, or of property; to correct erroneous ■dates and to show the truth of the transaction, where from fraud, accident, or mistake the written contract does not disclose it.</p> <p>These cases all recognize tbe general rule of tbe common law, —tha.t a written contract is tbe best evidence of tbe agreement between tbe parties; that it is tbe consummation of their negotiations; and that it should not be altered or contradicted, except in sucb cases as a chancellor would feel bound to modify it or set it aside. Pennsylvania R. Co. v. Shay, 82 Pa. 198; Lip-pincott v. 'Whitman, 83 Pa. 244; Rowand v. Finney, 96 Pa. 197.</p> <p>The facts and circumstances relied on must not be of doubtful import. It is not sufficient that they be merely consistent with the instrument’s being a mortgage, they must be clearly inconsistent with its being an absolute conveyance. Titles regular and legal on their face cannot be swept away by parol evidence of doubtful facts or ambiguous inferences. Burger v. Dankel, 100 Pa. 118.</p> <p>The order on which the court permitted the counsel to address the jury is not assignable as error. The supreme court will not reverse the court below for allowing counsel to speak in “wrong order.” This was intimated in Marsh v. Pier, 4 Rawle, 284, 26 Am. Dec. 131, and was expressly ruled in ITartman v. Keystone Ins. Co. 21 Pa. 475, and in Smith v. Frazier, 53 Pa. 228.</p>

recover $150 rent reserved in a written lease of a school bouse and lot of ground known as tbe Springdale school property by him to tbe school board.

This was an action to recover commissions for the sale of sewing machines. At the trial it appeared that tire plaintiff, Maurer, was hired as selling agent by D. B. Betts, the defendant’s manager or agent, who was in control of the Harrisburg office and was authorized to employ selling agents for the defendant.

The facts are stated in the opinion. The assignments of error specified the entry of the decree. In order to comply with the terms of the trust this trustee, appellant, must control the expenditures of the income. The appointment of the committee does not devest his interest, since there is provision made in the will for receiving and applying the income. Royer v. IVIeixel, 19 Pa. 240; Be Wilson, 2 Pa. St. 325 ; Canaday v. Hopkins, 7 Bush, 108.

This was a judgment for $551.25, confessed on a note under-seal with warrant of attorney by J. D. Christ to M. 0. Eire-stone, and marked to the use of A. O. Mays. A rule to open the judgment and let the defendant into a defense was made absolute on terms that the judgment note-should stand as a narr. and as evidence of the plaintiff’s claim..

<p>Where a statute provides what fees a district attorney shall receive, these 'fees are the compensation attached by law to the office; and beyond these fees he cannot claim, directly or indirectly, compensation for official services.</p> <p>Whether certain acts done by a public officer are within the scope of the ■duties of his office is a question of law and must be decided by the court.</p>

<p>Appeal from a decree of tbe Common Pleas of Bradford County-dismissing a bill in equity.</p> <p>Tbe original bill was filed July 2, 1881, by tbe borough of' South Waverly, a municipal corporation created under tbe general borough laws, against tbe New York, Lackawanna, & West-em Nailway Company; it alleged that the defendant was building its railroad through the said borough and had taken possession of Bradford and Warren streets, legally authorized streets-of said borough, and that the defendant by occupying said streets in the construction of its railroad was obstructing the public travel unlawfully and without right or authority, and that if the defendant was allowed to construct its railroad as-commenced by it and as its abutments were being built in the public streets it would be a permanent obstruction to said streets- and the public travel.</p> <p>The prayers of the original bill were: (1) That the defendant be restrained from taking possession of said public streets,, or from building the abutments for said railroad in said public streets; (2) that so far as the defendant has occupied said! streets by its abutments it be compelled to remove the same; (3) for a preliminary injunction; and (4) for general relief.</p> <p>On October 3, 1882, plaintiff filed an amended bill, which set forth the following resolutions of its common council:</p> <p>South Waverly, Pa., July 5, 1881»</p> <p>At a special meeting, etc.,</p> <p>Eesolved, By the common council of the borough of South Waverly in council assembled, That the N. T. L. & W. railway cross Bradford and Warren, at their junction, by an easy grade crossing; that they shall commence the said grade at the-knoll in front of the residence of Timothy Hireen, grading at an easy grade, westwardly over said railway; also making an easy grade to not less than 400 feet, if required, at the west of said' crossing or to the first knoll reached westward; that the said company shall proceed to grade Warren street, commencing at the top of the first knoll south of said Warren street, grading' the same as easily as possible over and for not less than 50 feet north from the center line of said railroad to the best of the' company’s ability with tire land now owned by it; that the said" company shall make a good and sufficient -wagon road on the-north side of said railway, allowing travel on the said north side with wagons, etc., to the under crossing already constructed’ by said company on Wilcox street and said road to be not les® than 37% feet wide — said crossing to be fixed by the said company to the best of the ability of said company to accommodate-the traveling public on Bradford and Warren streets; also that all the streets intersecting at the head of Warren street shall be about on the same level or grade, as near as possible; also that the said railway company pay the costs already made in this case on the part of the plaintiff, including attorney’s fees, all not to exceed $25. The said over crossing to be kept in good repair by said company and well planked not less than 50 feet. (Carried by a full vote.)</p> <p>Resolved, That the N. Y. L. & W. R. R. Co. have the privilege of crossing the other streets of this borough, according to their present location, bridging Fulton, Loder, and Chemung streets, and that at Center and Ulster streets to be made proper grade crossings by said company. (Adopted.)</p> <p>Resolved, That when the N. Y. L. & W. R. R. Co. settles with the property owners adjacent to the crossing of Bradford street in the west portion of said borough of South Waverly,' then the said company may have the right to purchase on the north side of said railway proper land purchased and made into ■a street, the same will be accepted by this council in lieu of the land taken by it on that portion of Bradford street mentioned herein. The parties mentioned are those owning property on the south side of said railroad, from the crossing to Chemung ■street (Carried.)</p> <p>These resolutions were accompanied by a writing executed by the proper agents of the defendant railway company, stating that the company “accept the conditions of the resolutions passed this day in our presence by the council of South Waverly, in regard to the crossing of Bradford and Warren streets, and the other streets in said borough and agree to carry out the conditions of the same.”</p> <p>The amended bill stated that the company had occupied, crossed, and impeded the streets of the borough; that its railway crossed Fulton street from 6 to 10 feet below the grade, leaving the street in a dangerous condition; that bridges had been erected by the company at Loder and Chemung streets over the railway, where it crossed the streets about 12 and 18 feet below grade respectively; that these bridges were much narrower than the streets, and that footbridges, in extension of the sidewalk were practicable and necessary; that although more than a reasonable time had elapsed since the occupancy of said streets, the •defendant company had wholly neglected “the proper performance of its duties in the premises.”</p> <p>Tbe prayer for relief in the amended bill was as follows: “And your orators, in addition to the relief already prayed, pray that the defendant company, by the decree and under the direction of the honorable court, be compelled to properly discharge its duties and liabilities with regard to the subject-matter of this bill.”</p> <p>A demurrer to the bill as amended haring been overruled, defendant answered, denying any unlawful obstruction of the streets, alleging that it had, at the request of property owners, sloped the embankment on the sides of its track a.t Fulton street, so as to make an easy approach to and across the track, and that it had left the sidewalks untouched until some agreement could be arrived at by the parties interested as to the manner of constructing the foot crossing, if one was built, or the wagon bridge, if that should be determined on; that defendant had erected a sufficient bridge at Loder street, and that foot walks were impracticable ; that it had also erected a sufficient bridge at Che-mung street, and that plaintiff had no right to exact a separate foot walk there or at any other crossing.</p> <p>The answer admits the passage of the resolutions of July 5, 1881, and their acceptance by the company, but alleges that the borough afterwards passed a resolution substantially repealing and rescinding the resolutions of July 5, 1881, and requiring only a good iron footbridge at Fulton street.</p> <p>The case was referred, upon bills and answer, to S. E. Payne, Esq., as master and examiner, who found the facts substantially as follows:</p> <p>1. That plaintiff was a municipal corporation, incorporated under the general borough laws.</p> <p>2. That defendant is a Pennsylvania corporation, duly chartered November 23, 1880, under the general railroad act of April 4, 1868, and the acts amendatory thereof and supplementary thereto.</p> <p>3. That about June, 1881, defendant commenced the construction of its road through the plaintiff borough (describing its route).</p> <p>4. That defendant had built two iron wagon roads over its track in the borough, one at Chemung street, the other at Loder street; that no footbridge had been built at either crossing, but such bridges were practicable and necessary; that these bridges were each twenty feet wide inside tbe trusses, and that the approaches to them were eight or ten feet narrower than the original streets; that the sidewalks had not been extended up to the approaches of the bridges, and that it was impracticable that they should be so extended on the approaches as they then were and yet leave the wagon roads along the approaches of sufficient width.</p> <p>o. That the south approach to Chemung street bridge held the water back on both sides of it in the spring of the year; that a culvert under it was necessary for the removal of water; that the ditches by the sides of the approach were somewhat clogged, and needed cleaning out.</p> <p>6. That Fulton street is the main means of communication between the plaintiff borough and the adjacent village of Wa-verly, New York; that from all the circumstances (stating them) the public travel on this was so extensive and of such a nature as to demand for its reasonable safety the erection of a bridge which should combine both footbridges and a wagon bridge, above and across defendant’s track where it crosses the street</p> <p>7. That on July 5, 1881, the common council of the plaintiff borough passed the resolutions set out in the amended bill, and that the company accepted them; that the resolution requiring a bridge at Fulton street was not rescinded by any subsequent action of the town council.</p> <p>8. That in carrying Warren street under the railroad its width was decreased about eight feet; that no necessity appeared for this; that the space from the bottom of the bridge over this street to the roadbed was about nine feet, whereas it should be at least eleven.</p> <p>The master found, inter alia, as conclusions of law, that aside from all questions of contract the defendant company was under a legal obligation to restore Fulton street and the other streets of the borough when crossed by its railroad, to their former condition of safety for public travel, if such restoration could be made consistently with the reasonable construction and operation of the railroad, and if not, then to restore them in such way as to cause the least danger and least impediment to public travel; that if such restoration required a bridge at Fulton street (and he had found such bridge necessary) then the defendant was under a legal obligation to build it (Pennsylvania E. Co. v. Duquesne, 46 Pa. 223; Pennsylvania E. Co. v. Irwin, 85 Pa. 336); and the company’s contract with the plaintiff to do so made the obligation no stronger and took from the plaintiff no remedy for neglect to build which the plaintiff would have had in the absence of such contract; that these remarks applied with equal force to the footbridges; and that if they were necessary for the safety of the traveling public, an obligation lay on the defendant to build them.</p> <p>The master also held that neither assumpsit nor case for damages was an adequate remedy in the case, and recommended a decree requiring the defendant: (1) To attach footbridges to the east side of each of the wagon bridges already constructed over the track at Chemung and Loder streets; (2) to build a culvert under the south approach to the Chemung street bridge; (3) to place a guard on the west side of the south approach to the Loder street bridge; (4) to restore the sidewalks to Loder and Chemung streets; (5) to erect a wagon bridge, with footbridge attachments on each side, at the Pulton street crossing; (6) to remove the east abutment of the Warren street bridge out of the street; (7) to increase the space between the top of the highway and the bottom of the bridge at Warren street crossing to 11 feet.</p> <p>Defendant having excepted to the master’s report, the exceptions were sustained by the court, in an opinion by Moerqw, P. J., which was substantially as follows:</p> <p>1. There is no question as to the right of the defendant to construct its road over the streets in question. The tenth section of the act of 1849 gives the right, and it provides that “whenever any company shall locate its road, in or before any street or alley in any city or borough, ample compensation shall be made,” etc. The streets exist by force of the commonwealth’s authority, and to the commonwealth belongs the franchise of every highway within its limits as trustee of the public (Dan-ville, H. & W. E. Co. v. Com. 73 Pa. 38) ; and the defendant, in locating and constructing its road over the streets, exercised the power of eminent domain belonging to the sovereignty of the state. It is a liberty granted by the sovereign and cannot be disturbed except by the sovereign power. It clearly does not belong to individual right. Cleveland & P. E. Co. v. Speer, 56 Pa. 334, 94 Am. Dec. 84.</p> <p>[Any violation of tbe law, such as creating and maintaining a public nuisance or unreasonably impeding or obstructing travel, is an injury to tbe public, and must be redressed by proceedings in bebalf of tbe commonwealth; that is to say, tbe commonwealth alone can maintain the bill.] 1. If the obstruction is of such a character as to be a public nuisance, it may be abated upon conviction in the quarter sessions. Northern 0. E. Co. v. Com. 90 Pa. 300.</p> <p>Taking a street for the purpose of a railroad is taking it for public use (People v. Law, 34 Barb. 502; Danville, II. & W. E. Co. v. Com. 73 Pa. 38), and a private party in the absence of a specific right or authority cannot maintain a bill in equity, to enforce specific performance of a public duty. Buck Mountain Coal Co. v. Lehigh Coal & Nav. Co. 50 Pa. 91, 88 Am. Dec. 534; Cumberland Valley E. Co.’s Appeal, 62 Pa. 218.</p> <p>2. The resolutions of July 5, 1881, were adopted after the railroad had been located and substantially graded. The abutment was in Warren street. Since their adoption the bridges have been built over Loder and Chemung streets, but none over Pulton street. The master has found the travel at this crossing is dangerous, but he ],ias not found as a fact whether the resolutions were or were not rescinded; but the evidence shows that the defendant constructed portions of its road (after an effort to .rescind) under the directions of certain persons, who claimed to .act for the borough, but it afterwards turned out no record was made of any such authority. This may explain why no bridge was built at Pulton street. Without a.ny contract the defendant had the unquestioned right to construct its road “in and upon these streets,” being liable only for an abuse of that right. As long as there was no violation of law, there was no nuisance, and the company was liable only for damages to owners of lots fronting on the streets. [The resolutions as a contract were inoperative unless the borough was authorized to make the contract under the act of June 9, 1874. P. L. 282.] 2.</p> <p>Admitting that the word “town” in the act must be construed “borough,” then the plaintiff had authority to contract with the defendant, “whereby said railroad company may relocate, change, or elevate their railroad in such a manner as, in the judgment of such authorities, respectively, may be best adapted to secure the safety of lives and property, and promote the interest of said county, city, town, or township.”</p> <p>[Tbe defendant did not relocate its road, nor do the resolutions show in express terms any agreement on the part of the defendant to change or elevate its road; and we are asked to hold that the alleged contract was unauthorized and inoperative; but conceding that it was authorized, the public had an interest in the subject-matter of the contract, and a bill for specific performance cannot be sustained. The remedy is by action for damages.] 3. Mine Hill & S. H. E. Co. v. Lippincott, 86 Pa. 481; Whitney v. New Haven, 23 Conn. 624.</p> <p>The case of Com. v. Erie & N. E. E. Co. 27 Pa. 339, 67 Am. Dec. 471, is not in point, because by its charter the railroad was not to impede or obstruct the free use of the streets; the bill was in the name of the commonwealth; and there was no contract between the railroad company and the borough of Erie.</p> <p>In Pusey v. Wright, 31 Pa. 387, there was a contract to construct a lateral railroad in a certain manner; and on failure to so construct it, it was held that there was a common-law remedy, and the bill was dismissed.</p> <p>The same rule is recognized in Gallagher v. Payette County E. Co. 38 Pa. 103, and Smaltz’s Appeal, 99 Pa. 310.</p> <p>Again; prayers one and two in the original bill are not for relief against any infringement of the contract. The third prayer was for an injunction (which was refused) and the fourth for general relief; and I think the prayer in the amended bill, — to wit, that the defendant be compelled by the decree of this court to properly discharge its duties and liabilities “with regard to the subject-matter of this bill,” — is also for general relief, or at most, for specific performance of the contract</p> <p>[The whole matter, therefore, is an attempt to have the court direct and superintend the overhauling and reconstruction of the road, including the building of a bridge over Fulton street, according to the terms of the contract. This we are not inclined to undertake, for the reason the contract, except as to the Eulton street bridge, is vague and uncertain; and if it is valid, there is an adequate remedy at law. If it is not valid, and the defendant has violated the law, we think the remedy is either by indictment or by bill in the name of the commonwealth.] 4.</p> <p>The master did not discuss this question (of the execution of the contract), because his attention was called only to the act relating to the construction of railroads over public highways in townships, and there their duties are prescribed by the act. Nor does it seem that his attention was directed to the question of streets and highways being held by the council as trustee for the public.</p> <p>Thereupon, a decree was entered dismissing the bill, and plaintiff took this appeal, assigning as error: (1 — 4) The portions of the above opinion inclosed in brackets and designated by exponents; (5) the dismissal of the bill; (6) the refusal to enter the decree recommended by the master; (7) the failure to grant the plaintiff the relief to which it was entitled.</p> <p>The plaintiff has such an interest in its highways and bridges as to be entitled to maintain this suit, and its remedies are not abridged because the liabilities of the defendant may be defined by agreement. Hooksett v. Amoskeag Mfg. Co. 44 N. H. 105; Troy v. Cheshire R. Co. 23 N. H. 83, 55 Am. Dec. 177; Greenwich v. Easton & A. R. Co. 24 N. J. Eq. 217; State v. Gorham, 37 Me. 451; Hamden v. New Haven & N. R. Co. 27 Conn. 158; Philadelphia v. Eriday, 6 Phila. 275; Philadelphia’s Appeal, 78 Pa. 33.</p> <p>The jurisdiction of equity in eases of purpresture and nuisance, although not frequently exercised, seems undoubted. Eden, Inj. 259; 2 Story, Eq. § 921; Jeremy, Eq. Jur. § 1.</p> <p>The bill may be filed by the public authorities of a city or incorporated district. Smith v. Cummings, 2 Pars. Sel. Eq. Cas. 92. See also Monmouth County v. Red Bank & H. Turnp. Co. 18 N. J. Eq. 91; Hart v. Albany, 9 Wend. 571, 24 Am. Dec. 165; Frankford v. Lennig, 2 Phila. 403; and Philadelphia v. Lombard & S. Streets Pass. R. Co. 3 Grant Gas. 403.</p> <p>1. The use of a highway by a railway company having rendered the building and maintenance of a bridge necessary, and the railway company having refused to build, it became the duty of the borough to do so; for upon it, as to the public, devolved the duty of keeping the streets in order.</p> <p>2. Having built, it could recover from the railway company the cost of the bridge.</p> <p>3. The duty of the company is founded upon the statute as well as upon the law independently thereof. Pennsylvania R. Co. v. Irwin, 85 Pa. 336. See also Woodring v. Forks Twp. 28 Pa. 355, 70 Am. Dec. 134.</p> <p>A railroad company left a highway dangerous, and the township was held liable. Aston Twp. v. McClure, 102 Pa. 322.</p> <p>A railroad rightfully constructed and located is not per se a nuisance; but it may become such by an improper manner of construction; for by the improper use of legal rights or privileges wrongs may be committed or nuisances created. 1 Eorer, Eailroads, pp. 504, 505.</p> <p>The mere construction of a railroad track across a highway is no nuisance. But it must be constructed in such a manner as not to impede the passage or transportation of persons or property along the same. The necessary running of trains across the highway is not the cause of complaint here; it is the construction of a permanent obstacle in the highway which is a dangerous obstruction to travel, and the maintenance of it there. Such an obstruction of a highway is clearly a nuisance. Northern C. E. Co. v. Com. 90 Pa. 300.</p> <p>A railroad company has no right in constructing its road across a public highway to encroach upon the highway so asr to render it less commodious to the general public without showing-some actual or reasonable necessity. Injunction will lie in its absence. Schwenk v. Pennsylvania, S. Valley E. Co. 2 Chester Co. Eep. 177.</p> <p>A railroad illegally or unduly constructed may be enjoined at the instance of a person suffering special damage, or of the municipal authorities having charge of the highway. Pierce, Eailroads, 251.</p> <p>In Hestonville, M. & P. Pass. E. Co. v. Philadelphia, 89 Pa. 210, the city filed a bill to enjoin the laying of a railroad track. The city failed on the merits; but its right, as a party, to maintain such a suit was not questioned.</p> <p>By the act of June 19, 1871, P. L. 1361, it is provided that courts may inquire whether corporate acts are rightfully done under corporate franchises, in suits by individuals and other corporations, and grant relief in damages or by injunction. It cannot, therefore, be alleged by the defendant, even if prior to this act the law may be conceded to have been otherwise, that an undue or improper exercise of corporate rights can only be redressed by suit by the commonwealth. Edgewood E. Co.’s Appeal, 79 Pa. 257; McOandless’s Appeal, 70 Pa. 210.</p> <p>The remedy by indictment is inadequate, because an indictment is to punish for past acts, and sentence thereon cannot regulate future conduct. A railway company cannot be compelled by sentence in such case, either to remove an obstruction, or construct a new work. Pittsburgh, V. & C. It. Oo. v. Oom. 101 Pa. 192. See also Danville, H. & W. P. Oo. v. Oom. 13-Pa. 29.</p> <p>Equity, in obvious' cases, will interfere and control the action of railway companies in regard to the construction of their-works, directing the mode of crossing highways, at the instance-of trustees having the charge of the maintenance of such highways. 2 Story, Eq. § 1563.</p> <p>Courts of equity will decree the specific performance of contracts by a railway company with a landowner with regard to-farm crossings and similar works upon lands of the company, in which such party has an interest so material that the nonperformance cannot be adequately compensated at law. 2 Bedf.. Bailways, p. 315.</p> <p>A court of equity has jurisdiction to enforce specific performance of a contract by a defendant to be defined work on his own property, in the performance of which the plaintiff has a material interest and which is not capable of adequate compensation in damages. Storer v. Great Western B. Oo. 2 Youngc & O. Oh. Gas. 48; Sanderson v. Oockermouth & W. B. Co. 11. Beav. 491; Lytton v. Great Northern B. Oo. 2 Kay & J. 394; Wilson v. Eurness B. Oo. L. B. 9 Eq. 28; Atty. Gen. v. -Mid-Kent B. Oo. L. B. 3 Oh. 100; Greene v. West Cheshire B. Oo. L. B. 13 Eq. 44; Eranklyn v. Tuton, 5 Madd. 469; Lane v.. Newdigate, 10 Ves. Jr. 193.</p> <p>Another ground which makes a court of equity more anxious-to decree specific performance of a contract to do certain works, as to build of make a road, is, where the plaintiff by reason of' his having parted with his land to the defendant has no opportunity of erecting the buildings at his own cost, and so ascertaining the amount of damages sustained by reason of the nonperformance of the contract. South Wales B. Oo. v. Wythes, 1 Kay & J. 200. And see Price v. Penzance, 4 Hare, 506; Storer-v. Great Western B. Oo. 3 Eng. By. & Canal Oas. 106, 2’ Younge & O. Oh. Oas. 48; Soames v. Edge, 1 Johns. V. O. (Eng.) 669; Wilson v. Eurness B. Oo. L. B. 9 Eq. 28.</p> <p>Again ; where there have been acts amounting to a part performance of the contract, the court mil compel specific performance, which, without such acts, it might not do. Price v. Pen-zance, 4 Hare, 506, 509. See also Pembroke v. Thorpe, 3 Swanst. 437, note; Sanderson v. Cockermoutb & W. R. Co. 11 Beav. 497; Oxford v. Provand, 1. R. 2 P. C. 135; Crook v. Seaford, L. R. 10 Eq. 678; and 1 Lead. Cas. Eq. pp. 1083, 1084.</p> <p>It may be laid down as a general rule that it is competent for the court to interfere to enforce the specific performance of a contract by the defendant to do definite work upon his own property, in the performance of which the plaintiff has a material interest, and one which is not capable of an adequate compensation in damages. 1 Story, Eq. Jur. § 721, a.</p> <p>The decree recommended hy the master is fully sustained by Pierce, Railroads, 251; People ex rel. Kimball v. Boston & A. R. Co. 70 N. Y. 569; Com. v. Erie & N. E. R. Co. 27 Pa. 339, 67 Am. Dec. 471, and Pennsylvania R. Co.’s Apepal, 93 Pa. 150.</p> <p>A railroad built upon a public street of a city or borough without authority of law is, undoubtedly, a public nuisance; and its construction will be enjoined in equity. Com. v. Erie & N. E. R. Co. 27 Pa. 339, 67 Am. Dec. 471.</p> <p>The converse of this rule is equally true, where hy legislative authority the construction of a railroad is authorized upon and over the streets of a city or borough. Ibid. See also Eaust v. Passenger R. Co. 3 Phila. 164; and Danville, H. & W. R. Co. v. Com. 73 Pa, 29.</p> <p>The railway company being fully authorized to occupy and cross the streets, in the grant from the commonwealth, the proviso in the act of February 19, 1849, “not to impede the passage or transportation of persons or property along the same” must be construed liberally so as not to destroy the grant.</p> <p>In Bacon v. Arthur, 4 Watts, 440, a similar proviso was so constrired. See also Ensworth v. Com. 52 Pa. 320; and Monongahela Bridge Co. v. Kirk, 46 Pa. 112, 84 Am. Dec. 527.</p> <p>In Northern O. R. Co. v. Com. 90 Pa, 300, we are aware that this eourt held that the construction of a permanent obstacle in the highway which is a dangerous obstruction to travel, and the maintenance of it there, constituted a public nuisance. In that case the entire highway was blocked by a high bank, rendering it impassable without great danger. The case at bar presents no such facts.</p> <p>That a municipality has no right to impose terms upon a railroad company occupying its streets by authority of the sovereign is too well settled to be doubted, unless that power is expressly delegated. Pierce, Eailroads, 247; Eorer, Eailroads, 507 ; Wood, Eailway Law, 985; Mercer v. Pittsburgh, Pt. W. & C. E. Co. 36 Pa. 99; Hestonville, M. & F. Pass. E.. Co. v. Philadelphia, 89 Pa. 210.</p> <p>In the case at bar we assert there are but two parties to the transaction, to wit: the commonwealth and the appellee. The commonwealth owns the streets, and has granted the appellee the right to appropriate them without let or hindi’ance on the part of the appellant. See Philadelphia v. Lombard & S. Streets Pass. E. Co. 3 Grant Cas. 403; Philadelphia v. Trenton E. Co.’s Case, 6 Whart. 43, 36 Am. Dec. 202; Com. v. Fisher, 1 Penr. & W. 466; Com. v. Erie & N. E. E. Co. 27 Pa. 339, 67 Am. Dec. 471, and Mercer v. Pittsburgh, Ft. W. & C. E. Co. 36 Pa. 99; Cleveland & P. E. E. Co. v. Speer, 56 Pa. 325, 94 Am. Dec. 84; Georgetown v. Alexandria Canal Co. 12 Pet 91, 9 L. ed. 1012; Milwaukee v. Milwaukee & B. E. Co. 7 Wis. 86.</p> <p>“For a nuisance that, is merely a public wrong, only a public action can be brought; and that must be done by the proper public functionaries.” Mechling v. Kittanning Bridge Co. 1 Grant Cas. 416; Flanagan v. Philadelphia, 8 Phila. 110; Butler v. Butler Gas Co. 4 Sad. Eep. 19.</p> <p>A bill for specific performance will not lie where the public has an interest in the nonperformance of the covenant; on refusal to perform, the only remedy is a recovery of damages for the breach. Mine Hill & S. H. E. Co. v. Lippincott, 86 Pa. 468.</p> <p>A court of equity will not indirectly enforce specific performance by way of a preliminary injunction; as by restraining the performance of work unless it be done in a particular manner. Philadelphia & E. E. Co. v. Philadelphia, 8 Phila. 112.</p>

E. D. All the Judges present. Error to the Common Pleas of Lycoming County to review a judgment on a verdict for plaintiff in an action of assumpsit. The facts are sufficiently stated in the. opinion.

<p>The disproportion between a life insurance policy for $3,000, assigned to a creditor as security, and $100, the amount of the debt secured, is so great as to constitute the transaction a wager.</p> <p>If the insurance company pays the amount of the policy to the creditor the administrator of the insured can recover from the creditor the amount so paid less the debt with interest, and the sum which the creditor has paid to keep the policy alive.</p> <p>If an assignee, from the creditor, of a one-half interest in the policy has. received from the company one half the proceeds, he is liable to the administrator for the amount so paid him less one half the debt and interest and the whole amount paid by him to keep the policy alive.</p> <p>Cited in Ulrich v. Reinoehl, 143 Pa. 238, 250, 13 L. R. A. 433, 24 Am.. St. Rep. 534, 22 Atl. 862, and in note to Roller v. Beam, 6 L. R. A. 136.</p> <p>Note. — In the above case the unexplained disproportion was so great' that the policy was declared a wager as a matter of law. Evidence of th& debtor’s expectancy of life, and the cost of maintaining the policy is admissible to show that the seeming disproportion is not an actual one. Ulrich v. Reinoehl, 143 Pa. 238, 13 L. R, A. 433, 24 Am. St. Rep. 534, 22 Atl. 862. See also Shaffer v. Spangler, 144 Pa. 223, 22 Atl. 865; Wheeland v. Atwood,, 192 Pa. 237, 73 Am. St. Rep. 803, 43 Atl. 946; Grant v. Kline, 115 Pa. 618» 9 Atl. 150; McHale v. McDonnell, 175 Pa. 632, 34 Atl. 966.</p>

<p>The action of the court of common pleas in setting aside a sheriff’s sale of real estate in execution is a matter of discretion not reviewable by the supreme court on writ of error.</p> <p>It seems that where an assignor for the benefit of creditors becomes indebted, after the assignment, to two persons, one of whom is the assignee, both of whom get judgment before the land, remaining after the payment of the debts secured by the assignment, has been reconveyed to the assignor, and the assignee issuing execution on his judgment before such reconveyance seizes and sells the land as the property of the assignor, the better practice is not to set aside the sheriff’s sale at the instance of the other judgment creditor, but to permit the acknowledgment of the sheriff’s deed and leave the rights of the judgment creditors to be settled by an action of. ejectment.</p> <p>It seems also that after the payment of all the debts secured by an assignment for the benefit of creditors, land remaining unsold is subject, without reconveyance to execution on judgments entered against the assignor after the date of the assignment. - - •</p>

Tliis was an action of debt by Benjamin T. Taylor against Jacob Breiseb and others, trading as Jacob Breiseb & Company, on two promissory notes: one for $4,000, dated February 17,, 1874, tbe other for $1,882.77, dated January 21, 1874, given in renewal of notes for tbe same amounts, dated respectively November 22, 1871, and August 13, 1873- — made by Jacob Breiseb & Company, the former to tbe order of Adam Breijcb, one of the-partners, and indorsed first by him and then by…

Eyror to the Quarter Sessions .of Northumberland County to review! a judgment on a verdict-.of guilty,, in an indictment for. forcible -entry and detainer of a certain island in tie West Branch of Me Susquehanna River known as Jenkin’s Island.

<p>Dealing in margins is a gambling transaction which a court of justice will not sustain.</p> <p>The assignment of a certificate of deposit to a broker as collateral security for margins in oil renders the broker merely the bailee of the assignor.</p> <p>A certificate of deposit not being a negotiable instrument the transferees of the original parties must depend on the equities of those from whom they claim title, unless they have some new and independent equity of their own.</p> <p>Cited in Durr v. Barclay, 8 Pa. Co. Ct. 285.</p> <p>Note. — In Pennsylvania the rule that every wagering contract is void (Pritehet v. Insurance Co. [1803] 3 Yeates, 458) ; and that no action can be maintained by the winner for the recovery of an unpaid wager (Phillips v. Ives, 1 Rawle, 36; Edgell v. McLaughlin, 6 Whart. 178, 36 Am. Dec. 214) ; or even by a bona fide holder of a promissory note given for such wager (Harper v. Young, 112 Pa. 419, 3 Atl. 670); although the loser may, under some circumstances, recover his wager from the stakeholder (App v. Coryell, 3 Penr. & W. 494; Conklin v. Conway, 18 Pa. 329; Forseht v. Green, 53 Pa. 138; M’AUister v. Hoffman, 16 Serg. & R. 147, 16 Am. Dee. 556), — is strictly applied to dealing in “margins” and wagers upon the prospective prices of stocks, bonds, oil, grain, etc.</p> <p>“A wager,” said Judge Hake in Parara v. Gabell, 89 Pa. 89, “may be defined as a contract in which the parties stipulate that they shall gain or lose upon the happening of an uncertain event in which they have no interest except that arising from the possibility of such gain or loss. . . . But it does not follow that every contract which produces such a result is a wager; the question is one of intention as deduced from the facts and circumstances.</p> <p>Accordingly, no recovery can be had by an indorser after maturity, upon a note given in settlement of the maker’s loss, by “selling short” certain stocks to the payee, without an intention actually to deliver the same. Rrua’s Appeal, 55 Pa. 294 (1867).</p> <p>In an action by tbe assignee of one to whom tbe payee first assigned a certificate of deposit against the maker, who is the subsequent assignee of the payee, the defendant may show as a defense that the certificate was assigned by the payee to the plaintiff’s assignor as collateral security for the payment of a gambling debt, or that the defendant was an innocent purchaser for value without notice.</p> <p>Such a defense is a complete bar to the action unless the plaintiff was himself an innocent purchaser for value.</p> <p>An assignment of error not founded on exception will not be considered.</p> <p>Hot decided whether, under the act of June 23, 1885, the panel in a civil action having been exhausted after sixteen jurors are called, the court ■may direct the sheriff to call talesmen from the bystanders.</p> <p>A judgment entered upon a bond and warrant to cover “margins,” though ■a declaration of no set-off has been executed, will not be enforced in the hands of an assignee who had no knowledge of the declaration; Griffith’s Appeal, 16 W. N. 0. 249; or had notice of the character of the transaction. ■Griffiths v. Sears, 112 Pa. 523, 4 Atl. 492.</p> <p>In an action on a contract for future delivery, apparently lawful, for ■damages for failure to deliver oil when “called” according to the contract it is a good defense to show that the contract was made not with a bona fide intention to take the oil, but merely to settle differences (Kirkpatrick v. Bonsail, 72 Pa. 155); and a similar rule applies where the vendor is plaintiff in an action for damages for the purchaser’s refusal to take oil according to contract (Scofield v. Blaekmarr, 2 Sad. Hep. 544.</p> <p>Where a broker advances money to carry on, for his client, a stock gambling operation he cannot recover the amount from his client. Fareira v. ■Gabell, 89 Pa. 89; Dickson v. Thomas, 97 Pa. 278.</p> <p>If one lends money to another for the express purpose of having it used in speculation upon the rise and fall of prices, and the money is so used, the lender cannot recover it. He is partioeps crimvms. But mere knowledge that the money will be so used does not necessarily defeat his recovery; Waugh v. Beck, 114 Pa. 422, 60 Am. Eep. 354, 6 Atl. 923; the test Í3 whether the plaintiff requires the aid of the wagering contract to establish his case. Lloyd v. Leisenring, 7 Watts, 294; Scott v. Duffy, 14 Pa. 18.</p> <p>On the other hand money paid in settlement of differences or deposited by way of “margins” cannot be recovered (Merriam v. Public Grain & Stock Exchange, 1 Pa. Oo. Ot. 478),- although the rule is different izz the case-of an infant (Ruehizky v. De Haven, 97 Pa. 202) ; and an action cannot be maintained against a broker for violating an agreement to carry stocks, on “mai-g'in” for a specified time (North v. Phillips, 89 Pa. 250).</p> <p>Of course these cases are inapplicable to bona fide time eonti-acts for the sale and delivei-y of stocks and other personal property. The character of every transaction is for the jury. Smith v. Bouvier, 70 Pa. 325; Maxlon v„ Gheen, 75 Pa. 166.</p> <p>If the contract is void by virtue of the act of 1794, the check given is void. Durr v. Barclay, 8 Pa. Co. Ct. 285. Money held by a stakeholder as. the result of a wagering contract may be withdrawn. Dauler v. Hartley, 178 Pa. 23, 35 Atl. 857. And a note given in payment is uncollectible. Gaw v. Bennett, 153 Pa. 247, 34 Am. St. Rep. 099, 25 Atl. 1114. But a bona fide indorsee and holder for value, without notice and before maturity, of a promissory note given in a stock gambling transaction znay recover against the maker. Northern Nat. Bank v, Arnold, 187 Pa, 356, 40 AtL 794.</p>

<p>Error to the Common Pleas of Warren County to review a judgment for the garnishee in a case stated.</p> <p>This was originally an action by J. B. Kuhn et al., trading as J. B. Kuhn & Company against G. T. Pryor and S. E. Bickel.</p> <p>The facts as they appeared from the case stated for the opinion of the court below were as follows:</p> <p>On March 17, 1884, a judgment was obtained by the plaintiffs, before George O. Cornelius, Esq., J. P., of said county, against the defendants for the sum of $192.14 and costs, amounting now to $222.30 and costs.</p> <p>October 27, 1886, an attachment execution was issued by the justice upon the judgment and on the same day was served upon the Warren Savings Bank as garnishee. October 28 the attachment was served on the defendant, G. T. Pryor; but no service was made on Bickel.</p> <p>On the same days interrogatories were issued and served on the garnishee, and on the defendant, Pryor.</p> <p>TJp to the date of the service of the attachment on the garnishee, there was on deposit with the garnishee to the individual credit of Pryor, the sum of $214.02; and there was no money on deposit to the credit of the firm of Bickel & Pryor or Bickel individually.</p> <p>October 2.9, while said sum of $214.02 was still in bank a check dated, and given, October 23, 1886, bona fide and for good consideration, payable to the order of W. P. McMurtrie for $200, signed by Pryor, indorsed by McMurtrie to John Benner and by Benner to the Citizens National Bank, of Warren, was presented to the garnishee by the Citizens National Bank for payment and was paid.</p> <p>The interrogatories were answered by the garnishee on the 4th day of November, and the answer was filed with tbe justice on said day.</p> <p>Tbe defendant when tbe answer was filed, gave notice to the garnishee of his claim to the benefit of the exemption act of April, 1849, which was duly set forth in the answer to the interrogatories. At the time of filing the answer, the justice told the garnishee and the defendant that the exemption could not be claimed for him by the garnishee; where upon the defendant’s attorney, and the defendant claimed the benefit of the exemption act for the defendant and gave notice to the justice of said claim.</p> <p>At the return of the attachment tbe plaintiffs did not appear, and nothing was done by the justice.</p> <p>November 6 the plaintiffs appeared before the justice and asked for judgment against the garnishee; whereupon, the garnishee was notified to appear on the 15th day of November, at 3 p.m.; and upon that day the attorney for the plaintiffs and garnishee appeared, and the attorney for the garnishee claimed that the justice had no jurisdiction, for the reason that the amount involved in the attachment exceeded $100.</p> <p>If the justice had jurisdiction to issue an attachment for said sum, and if, upon the foregoing facts, the court should be of the opinion that the plaintiffs were entitled to judgment, then judgment was to be entered in favor of the plaintiffs against the garnishee, for $214 and costs; otherwise, judgment for said garnishee and against said plaintiffs for costs, with right to a writ of error to either party.</p> <p>Upon entering judgment for the garnishee, CummiN, P. J., filed the following opinion: — 1. Had the justice of the peace jurisdiction in the attachment execution proceedings the amount in controversy being above $100 ?</p> <p>The statute of April 15, 1845, P. L. 459 (Purdon’s Digest, 999) whereby attachment execution process was extended to justices of the peace, contains no words limiting it to sums not exceeding $100, nor to any sum whatever. At the time this statute was approved the justices had no jurisdiction where the sum in controversy was not above $100; afterwards this was increased to $300. The statute, extending this process to the justices is equally consistent with the $300 jurisdiction as it was with the $100.</p> <p>In Jacoby v. Shafer, 105 Pa. 610, the enlai-ged jurisdiction</p> <p>of justices of tbe peace was beld to embrace proceedings by attachment relating to fraudulent debtors. For like reasoning, I am of opinion that it embraces proceedings by attachment execution.</p> <p>2. As to irregularities in the proceedings before the justice of the peace: This case comes into court on appeal by which all irregularities are cured. The statute of March 20, 1810 (Pur-don’s Digest, 964), on this subject is as follows: “Provided, That upon any such appeal from the decision, determination, or order of two justices of the peace to the court of common pleas, . . . the cause shall be decided in such court on its facts and merits only, and no deficiency of form or substance in the record or proceedings returned, nor any mistake in the form or name of the action shall prejudice either party in the court to which the appeal shall be made.”</p> <p>3. Does the check given by the defendant to McMurtrie, bona fide and for a good consideration, October 23, 1886, operate as an equitable assignment pro tanto of the defendant’s funds in the hands of the garnishee, in view of the facts that the attachment execution, at the suit of the plaintiffs, Kuhn & Company, was served on the garnishee October 28, 1886, and said check was not presented to the garnishee for payment until October 29, 1886, which was the first notice the (drawee) garnishee had of its existence ?</p> <p>The legal question here involved has been the subject of much controversy in the court. Many fine spun theories have been woven and hair splitting distinctions made; and, of course, by such processes it was hardly to be expected that uniformity could be reached. Fortunately, it will not be the duty of this court to attempt to bring harmony out of such discord.</p> <p>The respective rights and duties of attaching creditors, garnishees, and check holders, under like circumstances, are reasonably well settled in adjudicated cases.</p> <p>As to the check holders: In Saylor v. Bushong, 100 Pa. 27, 45 Am. Pep. 353, it is regarded as settled that the holder of a check cannot maintain an action in his own name against the drawees, though they have sufficient funds of the drawer, if they refuse to accept it. A check may be revoked by the drawer before presentment, etc.</p> <p>As to the garnishee: THOMPSON, L, in Bank of Northern Liberties v. Munford, 3 Grant Gas. 232, declares: “It is true a garnishee is bound to make every legal defense that a claimant of the fund might make.”</p> <p>As to the attaching creditor: An attaching creditor stands in the shoes of the debtor. Patten v. Wilson, 34 Pa. 299.</p> <p>An attachment execution served, wherever it lies, places the attaching creditor in the same relation to the garnishee as that occupied by the debtor before the attachment was laid.</p> <p>An attachment is an equitable assignment of the thing attached, a substitution of the creditor for the debtor and to the latter’s right against the garnishee.</p> <p>An attachment places a judgment creditor in the shoes of the debtor, with all his rights and privileges, just as he stood at the date of the service of the attachment. Reed v. Penrose, 2 Grant Gas. 472.</p> <p>The rights of the respective parties must be ascertained as of the time when the attachment execution was served on the garnishee, viz., October 28, 1886. On that day the garnishee had in its hands $214.02 of the funds of the defendant. On that day the attachment execution for $222.30 was served on the garnishee at the suit of the plaintiffs. This, by operation of law, worked an equitable assignment, as of that date, to the plaintiffs of all the defendants’ funds in the hands of the garnishee, as the amount was less than the claim of the plaintiffs.</p> <p>As the plaintiffs, the judgment creditors, on that day stood in the shoes of the debtor, defendant, with all his rights and privileges, of all of which the garnishee then had notice and was bound to know, the service of the writ on the garnishee was, an appropriation, by operation of law, of the whole fund of the defendant in the hands of the garnishee to the claim of the attaching creditor. On that day the garnishee had no notice of the check previously given, and had in no way obligated itself to pay such check. The plain duty of the garnishee then was to hold the fund until the rights of the judgment creditors thereto could be adjudicated. But we are not without authority on the main question; after a collation of all the authorities this conclusion is arrived at in 2 White & T. Lead. Cas. in Eq. pt. 2, 4th Am. ed. p. 1653: “Agreeably to the weight of authority a check is, essentially, a bill of exchange, and will not, therefore, operate as an equitable transfer or appropriation.”</p> <p>In Jordan’s Appeal, 10 W. N. 0. 37, Mr. Justice Stebrett, delivering the opinion of the court, said: “It is well settled that such a check or draft without more is neither a legal nor equitable assignment or appropriation of a corresponding amount of the drawer’s funds in the hands of the drawee. It gives the payee no right of action against the drawee nor any ■valid claim to the funds of the drawer in his hands. If, before acceptance or payment of the draft, the drawer executes a voluntary assignment for the benefit of creditors, as was done in this case, the funds in the hands of the drawee pass by the assignment as assets of the insolvent’s estate to his assignees in trust for creditors.” See also cases cited in this opinion.</p> <p>It seems clear, therefore, that in the case at bar the holder of the check has no sort of lien or claim of any kind on the funds, in the hands of the garnishee, and therefore has no rights which need be considered in the further investigation of this case.</p> <p>4. Is the defendant’s claim for the benefit of the exemption law valid ?</p> <p>This question must be determined as of the time, and under the circumstances existing where the claim was made.</p> <p>October 27, 1886, attachment execution issued. Same day; served on garnishee.</p> <p>October 28, 1886, attachment execution served on defendant.. Same day interrogatories filed and served.</p> <p>November 4, 1886, answers filed. Same day defendant claimed the benefit of the exemption laws and gave notice of his claim to the justice of the peace.</p> <p>In an attachment execution, the defendant’s claim of exemption relates, only, to what is attached in the hands of the garnishee. Landis v. Lyon, 71 Pa. 478.</p> <p>An attachment execution was issued from a justice and a rule taken at the same time, on garnishee to answer interrogatories then filed. On the return day of the attachment the defendant claimed the $300 exemption, and the claim was in time. Tost, v. Heffner, 69 Pa. 68. See also to same effect, Landis v. Lyon, 71 Pa. 473; Bittenger’s Appeal, 76 Pa. 105; Howard Bldg. &. L. Asso. v. Philadelphia & B. E. Co. 102 Pa. 220.</p> <p>The amount attached in the hands of the garnishee was lesa than $300; so if the defendants’ claim was a valid one, judgment-should have been entered for the garnishee. The defendant had a right to make the claim, and he made it in a proper way and. in proper time.</p> <p>But it is claimed that the rule laid down in Bowyer’s Appeal, 21 Pa. 210; Garrett’s Appeal, 32 Pa. 160, 72 Am. Dec. 779; Shelly’s Appeal, 36 Pa. 373, viz.: “That a debtor cannot waive his right to the $300 in favor of a junior lien creditor”— applies to this case, because the check holder has or may get this money in the hands of the garnishee if the defendant’s claim for exemption is sustained. It seems to me there are many reasons why the rule just stated does not apply to this case. The check holder is not a party to this record; and in no event can the whole or any part of the fund in controversy be awarded to him in this case. The check holder is not a lien creditor; he has no lien or claim of any kind on the fund, nor has he any claim or right of action against the custodian of the fund, the garnishee. Nor is it of any importance, in determining the rights of the parties what the garnishee has done with the fund, as the unauthorized acts of the garnishee cannot prejudice or prevent the defendant’s lawful claim for the benefit of the exemption.</p> <p>When the justice entered judgment for the garnishee he thereby awarded to the defendant the benefit of his claim for exemption, and in this it seems to me he was clearly right.</p> <p>The assignments of error specified the action of the court in entering the judgment.</p> <p>The attachment in this case issued upon a judgment for over $100 and the sum attached was in excess of $100. This was within the enlarged jurisdiction of the justice under the general act of duly 7, 1879 (P. L. 194), extending the jurisdiction, under the act of 1810 and its supplements, to the sum of $300. The Erie County act of February 18, 1869 (P. L. 208), was extended to the county of Warren by act of February 29, 1872 (P. L. 190). This Erie County act extends jurisdiction under the act of 1810 “as fully to all intents and purposes” as given by act of 1810. All these acts in regard to the jurisdiction of jxistices are in pari ma-teria, and part of one whole system. Jacoby v. Shafer, 105 Pa. 610.</p> <p>As between the plaintiff and defendant an attachment is execution process. Sheaffer v. Wilson, 1 Chester Co. Pep. 161; .'Strouse v. Becker, 38 Pa. 190, 80 Am. Dec. 474.</p> <p>It is the writ only that is to be served on the defendant. He ‘has nothing to do with scire facias or interrogatories. 2 Mc-Hinney, Justice, 655, 669, 671.</p> <p>Tbe only provision, in regard to answer is that garnishee shall answer within eight days after the same shall be served. All ■questions of irregularity are waived by the appearance and entering into agreement for stated case. The stated case also provides for a general judgment for plaintiffs, if entitled to it, and for the amount of it.</p> <p>The proceedings of the justice in this case were regular. The attachment execution act does not require both the plaintiff and the garnishee to be present before the justice, when the interrogatories are to be answered, nor at the return day of the attachment; for there is no purpose to be served- Neither the garnishee nor the defendant are required to be present at that time. If the garnishee has been served, then interrogatories are issued and served on him to answer within eight days from service. The garnishee is not required to be present when he makes his answers, hut can swear to his answers before another justice or other competent authority and send them to the justice.</p> <p>The plaintiffs, by their attachment, acquired a lien against the funds of defendant in hands of garnishee, which, from time ■of service of attachment, were impounded and held in legal custody until determination of the attachment. Act of 1845, § 1 (Purdon’s Digest, 999, pi. 125) referring to act of 1886 (Pur-don’s Digest, 146, pi. 39) ; Baldwin’s Appeal, 86 Pa. 483.</p> <p>There is no other lien or claim on said fund alleged to have been acquired upon that day. The sendee of an attachment exe■cution has the effect of an equitable assignment of the thing attached; it puts the garnishee in the relation to the attaching ■creditor which he had sustained to his former creditor. Roig v. Tim, 103 Pa. 111.</p> <p>It will prevail over an assignment for benefit of creditors made on same day. Boyer’s Estate, 51 Pa. 432, 91 Am. Dec. 129.</p> <p>The holder of the check of October 23 had no lien or claim upon the defendants’ deposit in the bank until presentation and •acceptance. It was a general check and not upon any particular fund. It was not presented until two days after the service of the attachment, and after the plaintiffs’ right to the fund accrued, and seven days after its date.</p> <p>An ordinary bill of exchange or check drawn generally and not upon any particular fund, whether accepted or not by the drawee, does not operate as an equitable assignment. 3 Pom. Eq. Jur. § 1284.</p> <p>A check for part of the drawer’s funds constitutes no assignment of that part of sucb fund until presented for payment and accepted by tbe bank, although verbally assented to by the cashier when absent from the bank. Bullard v. Randall, 1 Gray, 605, 61 Am. Deo. 433; iEtna Nat. Bank v. Fourth Nat. Bank, 46 N. T. 82, 7 Am. Rep. 314; National Bank v. Millard, 10 Wall. 152, 19 L. ed. 897; Carr v. National Security Bank, 107 Mass. 45, 9 Am. Kep. 6; First Nat. Bank’s Appeal, 10 W. N. C. 37.</p> <p>The holder of a check has no claim against the bank on which it is drawn and cannot maintain a suit against the drawee. Say-lor v. Bushong, 100 Pa. 27, 45 Am. Kep. 353.</p> <p>After an attachment execution has been served on a bank a check dated several days before but presented for payment on the same day is cut out by the attachment. Harry v. Wood, 2 Miles (Pa.) 327; Loyd v. McCaffrey, 46 Pa. 410.</p> <p>The garnishee in this case cannot set up the claim of exemption for the debtor. Reed v. Penrose, 2 Grant Gas. 485; Eox v. Keed, 3 Grant Oas. 81; Jones v. Tracy, 75 Pa. 419; Tost v. Heffner, 69 Pa. 68.</p> <p>It can only plead that which would be available against the defendant. Sergeant Attachm. 94; Jackson v. Bank of United! States, 10 Pa. 67; Silverwood v. Bellas, 8 Watts, 420.</p> <p>The question as to exemption is entirely irrelevant to this issue. The defendant has waived the exemption as to the second or junior creditor, the check holder, to whom he has transferred! his right, and the result is that the fund, being released from operation of exemption law, goes to the creditors in the course of distribution required by law. Bowyer’s Appeal, 21 Pa. 210; Shelly’s Appeal, 36 Pa. 373; Garrett’s Appeal, 32 Pa. 160, 72 Am. Dec. 779.</p> <p>The bank had no right then to pay the check in the face of our lien for it was paying out money that legally belonged to the plaintiffs. Hartman v. Hartman, 4 Brewst. (Pa.) 393.</p> <p>The exemption was claimed too late. A claim at the hearing on the return day of the attachment is too late. Morris v. Shafer, 93 Pa. 489; Kushworth v. Swope, 3 Legal Gaz. 223.</p> <p>It is too late at the time of a plea to scire facias. Strouse v„ Becker, 44 Pa. 206.</p> <p>The claim should be made when process is served or within a reasonable time thereafter. Bair v. Steinman, 52 Pa. 423.</p> <p>There was no fund at the time of the claim on which the exemption could operate under act of April 9, 1849, § 1. Pur-don’s Digest, 742.</p> <p>The exemption applies only to property “owned by or in possession of any debtor.” The allowance of the claim in this case does not and cannot benefit the debtor or his family, and for such and such only was it intended. Bowyer’s Appeal, 21 Pa. 210.</p> <p>Playing, by his check, transferred his right to tire money, the defendant had no title to the fund and could not claim the exemption. The defendant, in an execution, has no right to claim the exemption out of property to which he disclaims title. Gille-land v. Bhoads, 34 Pa. 187; Larkin v. McAnnally, 5 Phila. 17; Carl v. Smith, 8 Phila. 569.</p> <p>The exemption applies only to property or money actually owed by the defendant. Huey’s Appeal, 29 Pa. 219; Dieffen-der y. Fisher, 3 Grant Cas. 30: Emerson v. Smith, 51 Pa. 90, 88 Am. Dec. 566.</p> <p>Inasmuch as the original judgment was for more than $100 the justice had no jurisdiction to issue the attachment execution in this case.</p> <p>By the act of April 15, 1845 (1 Purdon’s Digest, 999, pi. 125 et seq.), the jurisdiction of justices of the peace was extended to the issuing, service, trial, judgment, and execution of all process required by the several sections of the act of June 16, 1836, relating to attachment executions; and this “extended” jurisdiction was intended to, and could, only take effect and operate upon judgments theretofore recovered, or which might thereafter be recovered under the law as it then existed, which limited the jurisdiction of justices to causes of action arising from contract, when the sum demanded was not above $100. Act of March 20, 1810 (1 Purdon’s Digest, 977, pi. 32).</p> <p>The act of February 18, 1869 (P. L. 208), provides “that the justices of the peace of the county of Erie shall have jurisdiction of all causes of action arising from contract, either express or implied, in all cases where the sum demanded is not above $300, as fully, to all intents and purposes, as they now have jurisdiction in cases” (arising from contract) “'when the sum demanded does not exceed the sum of $100; and in case any suit or action shall be commenced in the court of common pleas of Erie county upon any such contract, and the plaintiff shall obtain a judgment for a less sum than $300, he or they shall not be allowed to recover any costs,” etc.; which act was extended to Warren county by the act of February 29, 1872 (P. L. 190).</p> <p>This act simply enlarged the jurisdiction of justices of the peace, in respect to actions arising from contract and not otherwise; and not their jurisdiction under the act of 1845. Statutory remedies are to be followed with strictness, both as to the method to be pursued, and the cases to which they are applied. Lease v. Yance, 28 Iowa, 509; Bailey v. Bryan, 48 N. 0. (3 Jones L.) 357, 67 Am. Dec. 246; Banks v. Darden, 18 Ga. 318 ; East Union Twp. v. Byan, 86 Pa. 459.</p> <p>Jacoby v. Shafer, 105 Pa. 610; Ormsby v. Grinolds, 42 Phila. Leg. Int. 415; Boss v. Miller, 14 W. N. O. 253, 1 Lane. L. Bev. 137; Pagett v. Truby, 1 Pa. Oo. Ct 596; and Kraus v. Bickhart, 1 Chester Co. Bep. 479, have no bearing whatever upon the question under consideration; for in no sense of the word is an attachment execution an action arising from contract, but upon a judgment.</p> <p>An attachment execution is nearest of kin to a foreign attachment, and the rules governing the latter writ must also govern the former. It is a more comprehensive writ than the writ of scire facias, which, at common law, was regarded as a new and independent action, referring to the former proceedings but wholly distinct from them. Greenway v. Dare, 6 N. J. L. 305; Green v. Leymer, 3 Watts. 381, 384; Stewart v. Peterson, 63 Pa. 230, 232; Co. Litt. Hargrave & Butler’s notes, 290 b, 291 a, § 505; Pulteney v. Townson, 2 W. Bl. 1227; Grey v. Jones, 2 Wils. 251; Eenner v. Evans, 1 T. B. 268; Winter v. Kretchman, 2 T. B. 45, 46; Lowe v. Bobins, 1 Brod. & B. 381; Baldwin’s Appeal, 86 Pa. 483, 486.</p> <p>An execution attachment is in affect a suit by the defendant against the garnishee, in the name of the plaintiff. Beed v. Penrose, 2 Grant Gas. 472, 488, 499; Drake, Attachm. 523.</p> <p>The writ of scire facias, referred to in § 51 of the attachment act ( attachment execution) must necessarily be regarded, as it often is under the common-law practice, in the nature of a summons, and as the commencement of an action. Smyth v. Kipley, 33 Conn. 306, 311; White v. Washington School Dist. 45 Conn. 59; Skidmore v. Bradford, 4 Pa. 296, 300; Delaware, L. & W. B. Co. v. Ditton, 36 N. J. L. 361.</p> <p>Tbe writ is required to be served upon both defendant and garnishee “in the manner provided for the service of a writ of summons in a personal action” (1 Purdon’s Digest, 746, pi. 38) and commands them to appear on a certain day in court and show cause, etc. 1 Purdon’s Digest, 745, pi. 37.</p> <p>To this summons the defendant may appear and become a party, and plead payment or any other plea which he might have taken advantage of, upon a scire facias post annum et diem. Ogilsby v. Lee, 7 Watts & S. 444; Carter v. Wallace, 1 W. N. C. 63, 74; 1 Troubat & H. Pr. 696, § 1199.</p> <p>The garnishee may plead anything against the plaintiff in the scire facias that he could plead against his own original creditor. Farmers’ & M. Bank v. Little, 8 Watts & S. 207, 219, 13 Am. Dec. 293; 1 Troubat & H. Pr. 699, § 1202.</p> <p>Both defendant and garnishee may have a jury trial, with its incidents —verdict and judgment — requiring original execution process for its enforcement. 1 Purdon’s Digest, 746, pi. 41, cl. 2 and 827, pi. 25, 26; Baldwin’s Appeal, 86 Pa. 483, 486.</p> <p>In Ellsworth v. Barstow, 7 Watts, 314, in construing the act of 1810, it was held that a justice of the peace had not jurisdiction of an action arising on a-judgment of a justice of the peace of another state. And it required, to give them jurisdiction over actions brought on the judgments of justices of other states, the act of February 27, 1845. 1 Purdon’s Digest, 980, pi. 40; Kline v. McKee, 46 Pa. 519.</p> <p>The causes of action arising from contract, either express or implied, which appertain to the jurisdiction of a justice of the peace, are those which arise from an agreement or understanding immediately between the parties. Schaffer v. M’Namee, 13 Serg. & B. 44; Zell v. Arnold, 2 Penr. & W. 292, 295; Kline v. McKee, 46 Pa. 519; Koons v. Headley, 49 Pa. 168, 172; Com. use of Potter v. Beynolds, 17 Serg. & B. 367.</p> <p>If an attachment execution is an action, it is an action upon a judgment, and it cannot be contended that the act of February 18, 1869, enlarging the jurisdiction of justices of the peace in Erie county in respect to actions “arising from contract,” affects or enlarges the jurisdiction conferred by the act of April 15, 1845.</p> <p>Tbe plaintiff, having failed to appear before the justice on the return day of the writ, should have been nonsuited. 1 Purdon’s Digest, 984, pi. 55; Lawyer v. Walls, 17 Pa. 75; Yought v. Sober, 73 Pa. 49; Selfridge v. Tilghman, 1 Phila. 580.</p> <p>The justice not having disposed of the cause on the return day of the writ, either by entering judgment or continuing the-case to a time certain, lost his grasp of the same, and the proceedings thereafter before him were coram non judice, and void.</p> <p>The writ of attachment is required to be served upon the defendant, or a judgment against the garnishee is void. Freeland v. Elsworth, 3 Luzerne Legal Keg. 45; Oorbvn v. Bollman, 4 Watts & S. 342.</p> <p>It is just as imperative that he should have notice of any adjourned or other hearing, and particularly of the time when the merits of the case are to be heard and disposed of by the justice. Brown v. Hambright, 2 Legal Chronicle, 38; Frahke v. Dodge, 14 Lane. Bar, 177; O’Malley v. Kerr, 4 Kulp, 86; Martin v. Wiggins, 1 Lane. L. Kev. 141.</p> <p>A judgment by default on a day subsequent to the return day of the summons, the record of the justice showing no adjournment, is void. McGreever v. Smith, 11 Luzerne Legal Reg. 76; Martin v. Wiggins, 1 Lane. L. Rev. 141; Henderson v. Alexander, 1 Lane. L. Rev. 11.</p> <p>A justice of the peace, after hearing, may continue a case for consideration to some day and hour certain, but the record must show the adjournment or continuance. Yan Horn v. Independent Order of O. T. No. 76, 10 Luzerne Legal Reg. 158, 13 Lane. Bar. 60; and see also, Woodworth v. Wolverton, 24 N. J. L. 419; Dittmar Powder Mfg. Co., State Prosecutors, v. Leon, 42 N. J. L. 540; Blanchard v. Walker, 4 Cush. 455; Murdy v. McCutcheon, 95 Pa. 435, 436.</p> <p>It is the right and duty of the garnishee to insist upon and take advantage of the irregularities presented by the record in this case. Skidmore v. Bradford, 4 Pa. 296, 301; Swanger v. Snyder, 50 Pa. 218, 223; Kelso v. Kelly, 14 Pa. 204; Bank of Northern Liberties v. Munford, 3 Grant Gas. 232; Baldy v. Brady, 15 Pa. 103, 108.</p> <p>The defendant Pryor’s claim to the $300 exemption was properly made and in time. Yost v. Heffner, 69 Pa. 68; Landis v. Lyon, 71 Pa. 473; Bittenger’s Appeal, 76 Pa. 105; Morris v. Shafer, 93 Pa. 489; Howard Bldg. & L. Asso. v. Philadelphia & B. B. Co. 102 Pa. 220.</p> <p>The only question we have to consider is whether the check drawn by Pryor, to the order of McMurtrie, for $200 on October 23, 1886, five days before the attachment was served on the garnishee, but which was not paid until one day after such ■service, operated to defeat his claim to the exemption, to the amount of said check.</p> <p>It is the duty of the garnishee to insist upon the defendant’s rights in the premises. In Jones v. Tracy, 75 Pa. 417, after the defendant claimed his exemption, the garnishee suffered judgment by default for want of an appearance; and it was held that the defendant could not be affected by the garnishee’s failure to appear, and that the judgment against the latter ought to have been so framed as to protect the defendant’s exemption.</p> <p>The check given by the defendant, Pryor, to McMurtrie on October 23, 1886, operated as an equitable assignment pro tanto •of the fund upon which it was drawn, in the hands of the .garnishee, both as against said Pryor and the attachment process.</p> <p>As between the drawer and payee (or holder) the delivery of the check constitutes an assignment of the amount. 2 Dan. Neg. Inst. 3d ed. §§ 1638, 1643; Byles Bills, 6th Am. ed. 36, *20; Morrison v. Bailey, 5 Ohio St. 13. 17, 64 Am. Dec. 632; Re Brown, 2 Story, 516, Ped. Oas. No. 1,985; Keene v. Beard, ■8 O. B. N. S. 372; Union Nat. Bank v. Oceana County Bank, •80 Ill. 212, 22 Am. Pep. 185; National Bank v. Indiana Bkg. Co. 114 Ill. 483, 2 N. E. 401; Boberts v. Corbin, 26 Iowa, 327, '96 Ann. Dec. 146; Deener v. Brown, 1 MacArth. 350; Harker w. Anderson, 21 Wend. 372, 381; Morse, Banks & Banking, ■468.</p> <p>An attaching creditor stands simply in the shoes of his debtor; ■and any equities that could be set up against the latter are •equally available against the former. Patten v. Wilson, 34 Pa. 299, 300; Noble v. Thompson Oil Co. 79 Pa. 354, 21 Am. Bep. •66; Stevens v. Stevens, 1 Ashm. (Pa.) 190; United States v. Vaughan, 3 Binn. 394, 5 Am. Dec. 375; Com. v. Watmough, •6 Whart. 117; Nesmith v. Drum, 8 Watts & S. 9, 42 Am. Dec. 260; Biddle v. Etting, 32 Pa. 412; Myers v. Baltzell, 37 Pa. 491; Farmers & M. Nat. Bank v. King, 57 Pa. 202, 98 Am. Dec. 215; Beed v. Penrose, 2 Grant Oas. 472, 488, 499; 2 Dan. Neg. Inst. 3d ed. § 1644.</p> <p>A check given bona fide for a valuable consideration operates as an equitable assignment pro tanto, of the funds upon which it is drawn, both as against the drawer thereof and an attachment creditor, although not presented for payment until after service of process on the garnishee. 2 Dan. Neg. Inst. 3d ed. § 1644; National Bank v. Indiana Bkg. Co. 114 Ill. 483, 2 N. E. 401; Schuler v. Laclede Bank, 27 Eed. 424; German Savings Inst. v. Adae, 1 McCrary, 501, 8 Eed. 106; Eirst Nat. Bank v. Coates, 3 McCrary, 9, 8 Eed. 540; Roberts v. Corbin, 26 Iowa, 327, 96 Am. Dec. 146; Voorhes v. Ilesket, 1 Ohio C. C. 1. See Ex paHe Alderson, 1 Madd. 53; Corser v. Craig, 1 Wash. C. 0. 424, Fed. Cas. No. 3,255; Sharpless v. Welsh, 4 Dali. 279, 1 L. ed. 833, and Hyatt v. Prentzell, 20 Phila. Leg. Int. 133.</p> <p>The authorities cited and relied upon by the plaintiffs, as. holding a contrary doctrine, are clearly distinguishable from the case at bar.</p> <p>The distinction between a bill of exchange or draft, and a. check in this respect, has been repeatedly recognized and pointed out by the courts. Morrison v. Bailey, 5 Ohio St. 13, 64 Am. Dec. 632; Stewart v. Smith, 17 Ohio St. 82; Champion v. Gordon, 70 Pa. 474, 10 Am. Rep. 681; Lawson v. Richards, 6 Phila. 179; Merchants Nat. Bank v. State Nat. Bank, 10 Wall. 604-607, 19 L. ed. 1008.</p> <p>A failure on the part of the courts to always observe the-distinction between the two classes of instruments has no doubt occasioned the seeming conflict of the authorities upon the question under consideration. '</p>

<p>Error (two writs) to the Common Pleas of Clearfield County to review a judgment on a verdict for the plaintiffs in an action of trespass quare clausum fregii.</p> <p>The facts as they appeared at the trial before Williams, P. J., were as follows:</p> <p>In 1867 Mrs. Ashman was the owner in possession of a certain tract of coal mining land, and Messrs. Wigton and Dorris were interested in other coal land in the same vicinity; and in order to develop them desired to run a railroad through Mrs. Ashman’s land; and she, in consideration of the supposed advantage to her, entered into an agreement, the material portion of wbicb is set forth in the opinion of the court.</p> <p>A gangway also provided for under that portion of said agreement was built according to the terms of the contract running northeast and southwest where coal was mined for several years by Wigton and Dorris.</p> <p>By subsequent agreement Mrs. Ashman conveyed an undivided half of this property to one Pardee, one of the plaintiffs, subject to the agreement with Wigton and Dorris. Mrs. Ashman died and the plaintiffs, her executors, and said Pardee brought this suit claiming to recover for coal alleged to have been taken by Wigton and Dorris outside of the limits of their contract.</p> <p>Under the rulings of the court plaintiffs recovered for some coal taken out by Wigton and Dorris on the southeast of the gangway. But the evidence showed a large amount of coal to have been taken by Wigton and Dorris from the southwest corner of the Ashman tract and west of Weiss Bun. According to plaintiffs’ construction of the article this was not within the limit of defendants’ coal right. As the ruling of the court prevented plaintiffs’ recovery for this coal they have taken their writ of error. The defendants by their writ of error sought to review the ruling which permitted any recovery whatever.</p> <p>—Wigton and Dorris had under the agreement no right to mine coal, except such as lay northwest of the gangway as actually made, and between parallel lines drawn northwestwardly from the two ends of the gangway.</p> <p>—Wigton and Dorris were entitled to mine not merely the coal lying northwest of the gangway as actually made, but all coal in the tract lying northwest of the line of the gangway prolonged through the tract.</p> <p>Where the starting point is fixed, and the course of the line running from it is designated, these determine the boundary. The maxim, Id cerium est quod certwm reddi potest, applies. ITagey v. Detweiler, 35 Pa. 409, 413; Plagg v. Thurston, 13 Pick. 145.</p> <p>The boundary is explicit and unambiguous, on the face of the contract, and there is no difficulty in ascertaining its starting point and course. Therefore it is simply a question of the construction of the contract; and outside proof, if offered, would not have been admissible to show its application to another line or limit.</p> <p>In applying descriptions to local objects, it must be understood that the parties had reference to local objects as they existed a>. the time the deed was made, unless there is something to control this presumption. Stearns v. Nice, 14 Pick. 411, 413.</p> <p>It is the intention of the parties as expressed, and not an intent to be proved by evidence aliunde, and not expressed, which must govern. Cook v. Babcpck, Y Cush. 528; Beeson v. Hutch-ison, 4 Watts, 442; Simpson v. Murray, 2 Pa. St. Y6.</p> <p>If a deed in express terms fix one of the boundaries at a certain distance from an established line, evidence of measurements from other points not referred to in the deed, for the purpose of fixing that boundary, is inadmissible unless it be shown that the position of the established line referred to cannot now be ascertained. Liverpool Wharf v. Prescott, 4 Allen, 22.</p> <p>Plaintiffs in error having title to the line designated by the contract, the mode or manner of taking out the coal cannot affect their title. They could open any number of gangways, but their title to that boundary would remain.</p> <p>Every presumption is against a construction of the grant which abridges or narrows its limits, for the reason that such construction operates as a forfeiture pro tanlo. Newman v. Putter, 8 Watts, 51; McPnight v. Kreutz, 51 Pa. 232; Helme v. Philadelphia L. Ins. Co. 61 Pa. 10Y, 100 Am. Dec. 621.</p> <p>The plaintiffs in error having entered into possession of the Christian Wirtz, Jr., tract, under the contract of April 2Y, 1869, and having so continued in possession until the bringing of the suit, were not liable in trespass even if they did exceed their limits.</p> <p>Under the grant they were in possession of both the surface and the mineral estate, with buildings and improvements. Their possession was not by operation or authority of law but by express contract with the defendants in error. In such case Ihe rule is applicable that for an excess over what is covered by the grant, trespass does not lie.</p> <p>To enable a person to bring an action of trespass quare clausum fregii he must have actual possession of the land. 2 Papalje & L. Law Diet. 1292; Weitzel v. Marr, 46 Pa. 463.</p> <p>Trespass will lie against one wbo enters on land by authority of law for exceeding' his authority after entry; but it will not lie against one who has entered under a contract with the owner, for an injury done to- the premises, before the term of consent has been determined. Boults v. Mitchell, 15 Pa. 371.</p> <p>One exceeding his authority after an entry under authority of law is a trespasser, aliter for abuse of authority after entry under contract. Narehood v. Wilhelm, 69 Pa. 64; Berkey v. Auman, 91 Pa. 481.</p> <p>The cases quoted by the other side distinctly admit and declare that where a person or party has any exclusive right in real estate he can, in vindication of his rights, legally maintain an action of trespass quare, clausum fregii against anyone, even against a party who may have other interests in the soil.</p> <p>Whenever there is an exclusive right, trespass may be supported, although the party has not the absolute right to the soil or the whole property therein; as if a person have an exclusive right to cut turf and peat, or cut thorns, he may support trespass quare clausum fregié, and for cutting the turf. 1 Chitty, PL p. 163; Porsythe v. Price, 8 Watts, 282, 34 Am. Dec. 465; Kissecker v. Monn, 36 Pa. 313, 78 Am. Dec. 379.</p>

Tbis is an action of trespass quare clausum fregit, brought by Jobn Ross against W. W. Stryker and others to recover damages for an alleged breach of tbe plaintiff’s close; in other words, it is an action of trespass to recover damages which the plaintiff alleges he has sustained by reason of the defendants’ entering upon his premises and tearing down or destroying a certain shed and taking away certain coal therein, the property of the plaintiff.

<p>Error to the Court of Common Pleas of Warren County to review a judgment for defendants upon an issue formed upon the opening of a judgment and plea of payment</p> <p>The assignments of error were based upon the admissions of ■certain offers of evidence by the plaintiff, upon the answers to the points as stated below, and the action of the court in directing ¿a verdict for defendants.</p> <p>On the trial, plaintiff proposed to prove by Daniel Rhodes that prior to Clark’s purchase of the judgment in question from the witness, that he told Clark that Nason Rowley, one of the defendants, had told him, the witness, that the judgment was all right and was good; to be followed by evidence that it was on the strength of that representation that Clark purchased the judgment and paid his money for it; for the purpose of showing an estoppel.</p> <p>Objected to as incompetent for the purpose. Objection sustained and testimony rejected. (First assignment of error.)</p> <p>Plaintiff further proposed to prove by Clark that, previous to-his purchase of the judgment from Daniel Rhodes, Daniel Rhodes informed him that Nason Rowley, previous to Rhodes’s-purchase, informed him that the judgment was good, all right, and no incumbrances against it; and that he, Rhodes, purchased on the faith of that declaration and that the witness made the purchase, after the declaration to him by Rhodes, of what Row-ley had said, for a valuable consideration and on the strength of’ that declaration; and that had it not been for the declaration communicated to him by Rhodes, he would not have purchased the judgment; for the purpose of establishing an estoppel, first, so far as Rhodes is concerned and then extending it down to and covering the purchase of Clark.</p> <p>Objected to as incompetent. Objection sustained. (Second, assignment of error.)</p> <p>Plaintiff (under the evidence now given, that Mr. Rhodes informed Nason Rowley that if he purchased the judgment, he-was going to let Mr. Clark have it) now renewed the proposition contained in the third offer of the plaintiff’s testimony, to prove-that Mr. Rhodes, prior to his sale of the judgment to Mr. Clark, informed Mr. Clark what Nason Rowley told him about the-judgment before he purchased it; that Nason Rowley told him that the judgment was good, and that there was nothing against, the judgment or against them, the defendants; and on the faith of that representation, the purchase was made by Mr. Clark, and the money paid.</p> <p>Objected to as incompetent. Objection sustained, testimony rejected. (Third assignment of error.)</p> <p>The plaintiff requested the court to charge:</p> <p>1. That if, prior to the purchase of the judgment by Rhodes from Parker, Rhodes went to Nason Rowley to inquire about the-judgment, and whether there was anything against it, and if" there was not he would purchase it, and intended to sell it to-Clark, and in answer to tire inquiry Rowley informed him that. it was good, and there was nothing against it, and on the faith of that representation, Bhodes purchased, and paid a valuable consideration for it, Bowley is now estopped from showing that any encumbrance existed against the land, for which the judgment was given, or from showing any defense to the payment of the judgment.</p> <p>Ans. Whether correct or not in the abstract, we say to you that there is no evidence that estops the defendant from setting up the failure of consideration of the judgment. (Fourth assignment of error.)</p> <p>2. As the judgment note provided for the privilege of paying the whole or any part thereof before maturity it was the duty of defendants to pay the Harmon mortgage when required, and they can defend against the payment of the judgment only to the amount of the Harmon mortgage.</p> <p>Atis. This point is answered in the negative. (Fifth assignment of error.)</p> <p>The court, Brown, P. J., charged the jury as follows:</p> <p>On the 16th of April, 1881, the defendants, E. D. and Nason Rowley, executed and delivered to the plaintiff, Belle Wilcox, a judgment note for $1,378.12, payable in seven years from date with interest annually, with the privilege of paying the whole or any part before the maturity of the note. Hpon this note a judgment was entered in the court on the 25th of April, 1881. This judgment was assigned by the plaintiff to Charles Parker in May, 1881, and by Charles Parker to Daniel Rhodes in February, 1883, and by Daniel Rhodes to C. W. Clark, the present use plaintiff, on the 21st of February, 1883.</p> <p>The defendants made application to open the judgment, alleging that the consideration of it had failed. In order that this question might be tried before a court and jury, the judgment was opened, and it is now before us for disposition. As against the judgment the defendants allege, and the undisputed evidence is, that this judgment of $1,378.12 was given as the consideration of some 39 or 40 acres of land, that was deeded by Belle Wilcox to the defendant, as of the date of the judgment note. The undisputed evidence is that this was the consideration of the judgment. The defendants then showed that in 1854 Hosea Harmon, who had become the purchaser of this land, executed a mortgage on the same to John F. McPherson, who was trustee for the estate of Israel Gayle. The mortgage seemed' to have laid quiet for many years. But upon the mortgage judgment was obtained, and execution was issued and the land that formed the consideration of this judgment was sold to D. I. Ball, and he took possession; and the defendants yielded up to the paramount title under the mortgage.</p> <p>We say to you that standing thus, upon the undisputed evidence, the defendants have shown an entire failure of the consideration. The deed that they received was a warranty deed. By virtue of the encumbrance existing upon the property at the time of the making of the deed by Mrs. Wilcox to the defendants, the title was swept away, so that the defendants obtained nothing by the deed. The consideration of the judgment failed. This entitles the defendants to a verdict, unless there has been something in the conduct of the defendants that estops them or prevents them from asserting a defense. Upon the part of the plaintiffs, that is the equitable plaintiffs, it is alleged that so far at least as Mr. Bhodes is concerned, that he acquired a good title to the judgment, by reason of having become the pxxrchaser of it upon the allegation of Nason Rowley that there was no defense to it.</p> <p>We say that in order to constitute an estoppel it must appear by clear evidence, by evidence at least satisfactory to the jury, that the assignee Rhodes, or the assignee Clark, was misled, or led into the purchase of the judgment, and the expenditure of money, by the conduct of the defendants.</p> <p>There are many cases that are exclusively for the determination of the jury. There are others that are exclusively for the determination of the court. We think this is a case where the responsibility of determining it aright rests with the court. And if we are in error, the supreme court will correct us. We then say to voxx that upon the undisputed evidence in the case, your verdict should be in favor of the defendants. We think there is no evidence in the case that in justice or equity estops the defendants from setting up the defense that they beyond all question had as against the legal plaintiff, Mrs. Wilcox.</p> <p>Verdict and judgment for defendants.</p> <p>The court erred in rejecting the testimony contained in the first three specifications. McMullen v. Wenner, 16 Serg. & R,. 18, 16 Am. Dee. 543; Edgar v. Kline, 6 Pa. 327; Elliott v. Gallan, 1 Penr. & W. 24; Obapman v. Obapman, 59 Pa. 214; Griffiths v. Sears, 112 Pa. 523, 4 Atl. 492.</p> <p>In Miller’s Appeal, 84 Pa. 391, it is held that where one, by some positive act or declaration, influences or induces another to purchase, both parties acting in good faith, and a loss occurs it must be borne by him whose act or declaration occasioned it. The doctrine of estoppel by matter in pais has been greatly extended by the courts in modern times. The instruction of the court to the jury, that the evidence did not constitute an estop-pel, is not in accordance with the above cited authorities, and the modern doctrine applied to acts which constitute an estoppel.</p> <p>If the defendants were estopped as to Bhodes, they are estop-ped as to his assignees. Griffiths v. Sears, 112 Pa. 523, 4 Atl. 492; Ashton’s Appeal, 73 Pa. 153.</p> <p>As to the fifth specification, if tire Eowleys had the money in their hands to pay the Harmon mortgage, then t-lieir duty was to' pay it, and they could be relieved to the extent of the payment and their necessary expenses, and no more. McGinnis v. Noble, 7 Watts & S. 454.</p> <p>As the defense is purely equitable, it seems right and just that their defense be confined to the amount on the Harmon mortgage, and that there be a recovery against them for the balance of the judgment. This principle seems to be sustained by Tod v. Gallagher, 16 Serg. &. E. 261, 16 Am. Dec. 571, and' Harper v. Jeffries, 5 Whart. 26.</p> <p>The mortgage of H. Harmon to John E. McPherson, trustee, which swept away the land for which the judgment note was given, was of' record. It described the land mortgaged with precision. Mortgages are within the provisions of the recording acts, and are as much notice to the world as deeds. And every person is as much bound to take notice of them. “The recording of a mortgage is constructive notice to the world.” Evans v. Jones, 1 Yeates, 172.</p> <p>Estoppel has for its indispensable ingredient fraud, either actual or implied from culpable negligence.</p> <p>“But it is obvious there can be no such fraud where the purchaser or other actor was, or ought to have been, acquainted with 'the subject of his action, or even had the means of knowledge and neglected to avail himself of them. Hepburn v. M’Dowell, 17 Serg. & E. 383, 17 Am. Dec. 677. ... To the constitution of this species of estoppel [in pais] at least three ingredients seem to be necessary: First, misrepresentation or wilful ■silence by one having knowledge of the fact; second, that the actor, having no means of information, was, by the conduct of the other, induced to do what otherwise he would not have done; and thirdly, that injury would ensue from a permission to allege the truth. And these three things must appear affirmatively.” Com. v. Holtz, 10 Pa. 527, 51 Am. Dec. 499; Orest v. Jack, 3 Watts, 238, 27 Am. Dec. 353; Dungan v. American Life Ins. & T. Co. 52 Pa. 257.</p> <p>In H’Mullen v. Wenner, 16 Serg. & E. 18, 16 Am. Dec. 543, at the time of the transfer of his obligation, the obligor was not entrapped, or sought to be, by any question tending to lead him away from the point as to whether he had any defense — with his mind directed squarely to that point, he said the bonds were his and he was willing' to pay them.</p> <p>Edgar v. Kline, 6 Pa. 327, was the case of concealment of a defense not shown by any record importing notice, or of which the purchaser had equal means with the obligor of becoming acquainted.</p> <p>Elliott v. Callan, 1 Penr. & W. 24, was the case of a new and distinct promise by obligor to pay, upon the faith of which the purchaser took the assignment of the single bill.</p> <p>Decker v. Eisenhauer, 1 Penr. & W. 47 6, was a case of actual knowledge, and concealment of the same, of the mortgage after-wards attempted to be set up as a defense.</p> <p>Chapman v. Chapman, 59 Pa.,>214, was also a case of concealment of a fact known, and subsequently sought to be taken advantage of.</p> <p>Griffiths v. Sears, 112 Pa. 523, 4 Atl. 492, was a case in our favor, to the. extent that it holds that the purchaser of a judgment is ordinarily charged with the inspection of the record of the judgment, and is therefore, in general, affected by notice of any rights which it discloses. If charged with the inspection of the record of the judgment itself, why not also with that of any other public record affecting it ?</p> <p>The land having been sold to a stranger upon the paramount lien, and defendants not having in their hands, of the consideration of their purchase, a sum sufficient to extinguish the en-cumbranee, they were not bound to extinguish it. And the phrase, “not having money in their hands,” in this connection, signifies not having money that is due and payable, or in arrears, as distinguished from money not yet due by the terms of their contract. Dentler v. Brown, 11 Pa. 295; M’Ginnis v. Noble, I Watts & S. 454; Harper v. Jeffries, 5 Whart. 31.</p>

<p>Appeal from 'a decree of Common Pleas No. 1 of Philadelphia County sustaining the exceptions of the complainants to the report of a master and ordering a conveyance by the defendant to the complainants.</p> <p>This was a bill in equity, wherein Louisa M. Joyce and others, widow and children of Anthony K. Joyce, were complainants, and Caleb N. Taylor was defendant, to compel a conveyance by defendant of the title to certain real estate and an account of the rents of the same. An answer was filed with an account showing a large balance due to defendant. The matter was referred to an examiner and subsequently to a master who found, inter alia, the following facts:</p> <p>This bill was filed by the widow and children of Anthony K. Joyce, to compel the conveyance of the legal title of certain real estate held by the defendant, Caleb N. Taylor, as trustee, under a deed made by Anthony K. Joyce and Louisa M., his wife, and for an account of the collections and disbursements of the rents since the death of Anthony K. Joyce. In 1849 Anthony K. J oyce, then a young man of twenty-three, being in embarrassed circumstances, and harassed by importunate creditors, together with his wife, Louisa M. J oyce, executed a deed of trust, dated June 21, 1849, granting and conveying all their real estate and personal property to the defendant, Caleb N. Taylor, in trust to pay their debts, and afterwards to collect the rents, issues, and income, and apply the same to the support and maintenance of the grantors, during all the term of their lives, and in case the income should prove insufficient to supply the wants and necessities of Anthony K. Joyce and Louisa M., to sell or mortgage, as occasion may arise, all or any portion of the real estate, provided that the said Anthony K. Joyce or Louisa M., his wife, shall have no power- to sell or encumber any of said real estate; nor shall any part of the same, or the income of the same, be liable in any way for any of the debts, contracts, or engagements which they may make hereafter. And fro-m and immediately after the decease of the said Anthony K. Joyce, to convey and transfer all the trust estate and effects, the widow’s dower excepted, remaining in his hands, to such persons as the said Anthony K. Joyce should by will appoint, and on failure to appoint, to such as would be entitled under the intestate laws.</p> <p>At the time of this conveyance the real estate belonging to Joyce, or in which he had an interest, consisted of two stores on Minor street, and the remainder in one on Market street, to take effect on the death of his aunt, Anne Rusk, provided he should be then living.</p> <p>The defendant accepted the trust, satisfied the debts, collected the rents and income, and paid them to the beneficiaries.</p> <p>The income, however, whieh originally was only $600, and never exceeded $1,000, proved utterly inadequate to supply the wants and necessities of the grantors in the maintenance and support of themselves and family.</p> <p>At the solicitation, therefore, and upon the request of Joyce, the defendant from time to time advanced considerable sums in excess of the income, which were expended by the former in the support of himself and farpily.</p> <p>In 1854 Joyce occupied a store belonging to the defendant, where he carried on the business of selling coal, and afterwards in 1858 he removed to and occupied a farm of 140 acres in Bucks county, also belonging to the defendant, on which he continued to reside with his wife and family until the year pi’evious to his death.</p> <p>Bor the above store and farm, the trustee charged in his account the respective rents of $250 and $800 per annum.</p> <p>After the death of Anthony K. Joyce the defendant still continued to act, nominally, as trustee, no objection being made either by the widow or her children, collected the income from the estate, and paid it over to the widow, by whom it was expended in supporting herself and family until some time in 18IT, when defendant surrendered all active management of the estate.</p> <p>It was to the admission of the defendant as a witness, and to the charges made for the rent of the store and farm, as well as to all payments in excess of the income, that the complainants objected before the master.</p> <p>They contended that these payments and charges were not available against the parties in remainder under the powers in the deed. That the trustee was limited in his payments to the life tenant to the actual income, and that many of the payments being only evidenced by checks to the order of Joyce, and by notes of the latter paid by checks, were inadmissible as claims upon the estate.</p> <p>It was also alleged that there was an understanding between Joyce and the defendant that the former was to occupy the store and farm free of rent, and afterwards sell them and receive all that they realized above the original cost, and finally that the payments made to the widow were after the termination of the trust, and therefore invalid as against the children. There were besides specific objections as to certain items in the account.</p> <p>The questions raised were:</p> <p>1. Was the defendant competent as a witness? Found: that as to all matters relating to his own discharge he is incompetent.</p> <p>2. Were the payments in excess of income authorized by the deed, and is the trustee entitled to reimbursement out of the estate ? Found: that payments were authorized by deed, and trustee entitled to reimbursement.</p> <p>3. Was the rent of the store and farm a proper charge and entitled to payment ? Found: that rent of store and farm were proper charges and entitled to payment.</p> <p>4. Is the trustee entitled to credit for the payments made to the widow since the death of Joyce? Found: that trustee is entitled to credit therefor.</p> <p>5. Is the account as it stands correct ?</p> <p>Found: that an item of $101.97 for which no voucher was filed nor explanation given, should be disallowed; that the other item of credit appeared to be properly established, and that crediting the estate with $1,303.77, at the trustee’s request, there is due to the defendant $32,645.40, with interest from October 11, 1884, which is a valid claim upon the estate and entitled to payment thereon.</p> <p>The master thereupon submitted a decree in accordance with his conclusions.</p> <p>Complainants’ exceptions to this report were sustained by the court which ordered conveyance to complainants, of the title to the real estate held in trust by the defendant, in accordance with the prayer of the bill, and directed the costs of the proceeding to be paid by the defendant.</p> <p>A decree was entered accordingly; and the defendant took this appeal, assigning for error the decree of the court.</p> <p>The trustee was a competent witness.</p> <p>The exception to the enabling act of 1869 is that “this act shall not apply to actions . . . where the assignor of the thing or contract may be dead;” and the point is Was Joyce the assignor within the meaning of the act ?</p> <p>We must remember that although the words of the act, if ■strained, might exclude the testimony of a party, where any assignor was deceased, yet the supreme court has not so held, ■but restricted them to the case of an assignor with whom the witness made the contract disputed, that is, whose estate might be affected; viz., increased or diminished by the result of the action. Pattison v. Armstrong, 74 Pa. 476. See also Hostetter v. Schalk, 85 Pa. 220.</p> <p>No objection should be made to the competency of a witness upon the ground of interest, unless he were directly interested in the event of the suit, or could avail himself of the verdict on any future occasion in support of his interest. Doddington v. Hudson, 1 Bing, 257.</p> <p>In Nowell v. Davies, 5 Barn. & Ad. 368, an action against executors for a debt of a testator, a person entitled to an annuity under the will was held not disqualified by interest from giving evidence for the defendants. See also Pauli v. Brown, 6 Esp. 34; Davies v. Davies, Moody & M. 345.</p> <p>In Schnable v. Koehler, 28 Pa. 181, it was held, in an action for injury to the reversion, a tenant of the plaintiff has no such interest as excludes him from being a witness for his landlord. See also Musser v. Gardner, 66 Pa. 242.</p> <p>In this deed of trust the settlor conveyed his whole estate to Joyce, reserving the right to use, in the discretion of the trustee, for his wants and necessities, not only income, but also principal, together with the right to appoint by will, and on default- of a will to go to his lawful heirs.</p> <p>But in Mackason’s Appeal, 42 Pa. 330, 82 Am. Dec. 517, this court held that one sui juris cannot, as against either prior or subsequent creditors, settle his property in trust for his own life, and to bis appointees by will, or on default to bis lawful beirs; although in Ashurst’s Appeal, Pa. 464, such a trust was obviously held good as against the settlor only.</p> <p>It is clear, therefore, that the deed of Anthony K. Joyce and his wife was inoperative in regard to subsequent creditors; and it is submitted that any creditor could have forced the trustee by a bill in equity to pay any debt that Joyce should contract. Again; this trust bears no analogy in any respect to a valid spendthrift’s trust.</p> <p>Though it is evident that the trustee always intended to charge for his advances, it by no means follows that a previous intention not to do so, when he thought the estate was insolvent, would preclude him afterwards from altering his mind. Straw-bridge’s Appeal, 5 Whart. 568. See also Reek’s Appeal, 18 Pa. 432.</p> <p>There was no specific contract between the trustee and Joyce, but the former’s claim for rent is based upon the use of the premises by the latter.</p> <p>And in National Oil Ref. Oo. v. Bush, 88 Pa. 335, this court held that the action of assumpsit for rent is not necessarily founded upon any specific agreement by the tenant, oral or written, to pay rent, but upon the use of the land, and will lie against the occupant although he be a trespasser, the owner having the right to waive the tort and sue in assumpsit.</p> <p>In Spackman’s Appeal, 16 W. N. C. 19, the niece of a decedent presented a claim for rent for the use and occupation of her property, and it was allowed; the court saying that the mere fact of the use and occupation would between strangers create a liability, and the relationship of uncle and niece would not suffice to rebut this implied presumption. See also Straw-bridge’s Appeal, 5 Whart. 568.</p> <p>A trustee is under no special duty to voluntarily inform the remainder-men of the exact amount of his claims for advances against the estate; nor has he a special right to reimburse himself for such, by retaining portions of the income as it passes through his hands, until final settlement. And it has never been held that the trustee either forfeits or waives his legal right to reimbursement by such omissions, although it would, perhaps, be more prudent, should the trustee not have omitted to do so. Dilworth v. Sinderling, 1 Binn. 488, 2 Am. Dee. 469; Straw-bridge’s Appeal, 5 Whart. 568; Wister’s Appeal, 86 Pa. 160.</p> <p>It was also argued tbat tbe statute of limitations and tbe presumption of payment must prevail against tbe trustee. But bow can tbis be so, wben tbe trustee bolds tbe title as a lien for bis advances, as in Dilwortb v. Sinderling or in Strawbridge’s Appeal, where tbe lien was beld to exist ?</p> <p>Tbe courts bold tbat necessaries are not tbe bare needs of life; not only sucb as are absolutely necessary to support life, or to keep out tbe winter’s cold, but sucb as are suitable to tbe person’s degree and estate; and it must be left to tbe jury (or here for tbe master) to decide wbetber tbey were so or not, and wbetber furnished at reasonable prices; and tbey will apportion tlieir damages accordingly. Peters v. Fleming, 6 Mees. & W. 42; Rundel v. Keeler, I Watts, 23^''and cases cited.</p> <p>In Dilwortb v. Sinderling, 1 Binn. 488, 2 Am. Dec. 469, tbe trustee advanced £200 to tbe cestuis que trust to assist them in commencing a trade, and it was allowed by tbe court. See also Lowe v. Griffith, 1 Scott, 458; Coates v. Wilson, 5 Esp. 152; Hands v. Slaney, 8 T. R. 578; Rundel v. Keeler, 7 Watts, 237; Helps v. Clayton, 10 Jur. N. S. 1184; Mobney v. Evans, 51 Pa. 80; Breed v. Judd, 1 Gray, 455.</p> <p>In Hill v. Arbon, 34 L. T. N. S. 125, an infant, the sole manager of a farm belonging to bis father, and having some expectations, bought on credit one pair of spurs, a suit of best made kersey hose clothing, a breastplate, a set of best plated harness, etc.; beld necessaries. CooicbueN, Ob. J., said: “Here, considering tbe position of tbe young man as manager of tbe farm, tbat be was nearly twenty-one and had expectations, the goods supplied were of a character which a farmer’s son might reasonably require.”</p> <p>An infant may bind himself as apprentice by indenture, because it is for bis benefit. Rex. v. Arundel, 5 Maule & S. 257; Keane v. Boycott, 2 H. Bl. 511; Cooper v. Simmons, 7 Hurlst. & N. 707.</p> <p>Taylor was not competent as a witness to establish contracts with Joyce, the latter being deceased. Hostetter v. Schalk, 85 Pa. 220; Graves v. Griffin, 19 Pa. 176; Karns v. Tanner, 66 Pa. 297; Gardner v. Mc-Lallen, 79 Pa. 398; Ewing v. Ewing, 96 Pa. 381; Hunt’s Appeal, 100 Pa. 590; Murray v. New York, L. & W. R. Co. 103 Pa. 37; Eross’s Appeal, 105 Pa. 258; Foster v. Collner, 107 Pa. 305; Henry v. Com. 107 Pa. 361.</p> <p>It is incumbent on every trustee wbo sets up, as against bis cestui que trust, tbe notes of tbe latter, to do more than prove tbe signature thereto. He must show tbe actual receipt of a full consideration by the maker. It is very certain that Joyce never received tbe proceeds of tbe checks with which tbe notes, were taken up; and there is no proof whatever that be ever received tbe original consideration of tbe notes. Wistar’s Appeal, 54 Pa. 63.</p> <p>Tbe deed of trust provided for a devestiture of bis title upon tbe decease of Joyce, and made no provision for a lien for advances. Only one mode was pointed out in which these could be charged upon tbe land, namely: by tbe exercise of tbe power to mortgage.</p> <p>Purchasers, by tbe giving of such a mortgage, would be warned of tbe existence of a lien. By its giving, tbe title upon tbe death of Joyce would pass to tbe remainder-men encumbered. Had such a mortgage been executed there would have been a notification to tbe cestuis que trust of tbe necessity of economy, and there would have been no such ruinous accumulation of unpaid interest as is now claimed. Palmer v. Wakefield, 3 Beav. 227.</p> <p>There was no advance made by Taylor upon tbe faith of tbe deed of trust. Tbe indebtedness did not arise by way of such advances. He dealt with Joyce as be would have dealt with any other debtor, lending bis money upon tbe security of notes and checks, and renting bis places of business upon tbe personal credit of tbe lessee. He took no mortgage to show that be dealt upon tbe faith of the deed — which alone would establish tbe fact that be did so deal. On tbe contrary, tbe very fact of bis taking promissory notes showed that be dealt upon personal credit. Baybold v. Baybold, 20 Pa. 308.</p> <p>Upon tbe death of Joyce in 1868 tbe legal as well as tbe equitable title vested in tbe children, subject to tbe dower of the-mother. No title thereafter remained in Taylor, and there was. nothing therefore upon which tbe reported lien of debts could attach. Bacon’s Appeal, 57 Pa. 504.</p> <p>It may be that tbe statute of limitations is simply a bar to tbe recovery of a debt by tbe parties wbo set it up, and that it, does not apply where there has been a pledge for an unfulfilled purpose; but tbe failure to sue for twenty years raises a presumption which is evidence of payment. It may be that the pledgee of a specific thing, for a specific purpose, may legally refuse to deliver the pledge after sis years; but, after twenty years, he may not do so, for then a presumption of payment has arisen.</p> <p>In the well known case of Patton’s Estate, 2 Pars. Sel. Eq. Cas. 103, it was held that because of such possession an assignee for benefit of creditors could be compelled to reconvey. There was no evidence in this case to rebut this salutary presumption.</p> <p>Had Taylor taken a mortgage there would have been a presumption of payment after twenty years which could only have been rebutted by positive proof to the contrary or by evidence of an acknowledgment. Is he better off because he took no mortgage?</p> <p>In King v. Coulter, 2 Grant Cas. 77, the supreme court held nonpayment for but fifteen years under circumstances much less conclusive than the present as to nonindebtedness to be evidence from which a jury might infer payment. The remarks of Judge WoodwaRD well merit careful consideration in this connection.</p>

<p>To ascertain the intention of the parties to a contract all the surrounding facts and circumstances existing at the time the contract was made may be taken into consideration.</p> <p>Cited in Kaul v. Weed, 203 Pa. 586, 593, 53 Atl. 489.</p> <p>Note. — If the lease gives the right to take only certain minerals, the lessee is limited to such. Thus if the right is to take oil alone, no right passes to gas (Kitchen v. Smith, 101 Pa. 452; Palmer v. Truby, 136 Pa. 556, 20 Atl. 516); or to take soapstone only, a gives no right to take other minerals (Verdolite Co. v.' Richards, 7 Northampton Co. Rep. 113). See also Kier v. Peterson, 41 Pa. 357; Watterson v. Reynolds, 95 Pa. 474, 40 Am. Rep. 672; Clement v. Youngman, 40 Pa. 341. If the right is doubtful, the question is for the jury. Pord v. Buchanan, 111 Pa. 31, -.2 Atl. 339.</p> <p>Where a lessor has an exclusive right to the iron ore in a tract of land -with a right to wash the ore on the premises, and it was not known at the time the lease was executed that ocher existed in the land the lessor has no right to appropriate to his own use the ocher accumulated in the washings of the iron ore.</p>

The auditor, Charles Dennes, Esq., found facts as follows: Adam Rockafield died July 18, 1885, intestate, leaving surviving him, a widow, Catharine Rockafield, and the following named children, to wit: Catharine Kauffman, wife of Samuel L. Kauffman; Nachael Scott, wife of Francis M. Scott; Hetty Leaman, wife of --- Leaman; Emma Keech, wife of James B. Keech ; A. J. Nockafield; Adam S. Nockafield, and three grandchildren.

This was an action of assumpsit on the money counts by A. Anderson against James Hoop, to recover money alleged to have been advanced by Anderson to Hoop. At the trial before Olksted, P. J., the following facts appeared : Anderson, Hoop, and Thomas L. Kane were state road commissioners under an act of December 18, 1873, to lay out a road from Kane to Lafayette in McKean county, and as such were to collect taxes and receive commissions and allowances for expenses.

<p>Error to tbe Common Pleas of Lancaster County to review a judgment on a verdict for tbe defendant in an appeal by the plaintiffs from a report of viewers.</p> <p>Tbis was an appeal from tbe report of viewers and an issue thereon to ascertain the amount of damages, if any, sustained by Cai’oline Snyder by reason of tbe laying out and opening of Eilbert street, Lancaster city.</p> <p>By an act of assembly, special to Lancaster city, passed in 1854, P. L. 352, it is provided “that if any bouse, out-house, stable, or other building be removed or injured by tbe opening or extension of any street or alley as aforesaid, the said jury shall estimate tbe value of such building or tbe injury done thereto, and present a statement thereof in their report, which amount, after confirmation by tbe court, shall be paid out of tbe city treasury.”</p> <p>And by another act of assembly, special to tbe city, passed in 1873, P. L. 811, providing for a new city plan, it is provided that “street damages shall be paid by the' said city of Lancaster, and the county of Lancaster, in tbe manner and in tbe proportions directed by existing lawsi. e., tbe county to pay for tbe land and tbe city to pay for tbe buildings removed or injured.</p> <p>Plaintiff in error was tbe owner of a bouse and lot of land fronting 16 feet 2 inches on the west side of St. Joseph street, Lancaster city. St. Joseph street runs north and south. The city of Lancaster laid out a street called Filbert street, running west from St. Joseph street. Adjoining the Snyder property on the north, and fronting on the west side of St. Joseph street 21 feet 3 inches, was the property of Ambrose Worth. There was a house built on the front of each of the lots, each house occupying the full front of the lot. Filbert street took all the Worth house except 3 feet on St. Joseph street, and about half way back the lots, Filbert street cut into the Snyder lot and at the rear of the two lots took all of the Worth lot and 3 feet of the Snyder lot. At the time the houses were built the same man owned both lots and built both houses. The Snyder house was built into the wall of the Worth house, the timbers resting on said wall; and it had no other gable end.</p> <p>The plaintiff proved by Philip Stumpf: “This house is injured by the opening of Filbert street . . . The house will have no gable end after the corner house is torn down. The corner house will be taken away by the street. . . . The girders of the Snyder house are joined in the corner house.”</p> <p>Christian Ferrich testified: “The Snyder property is injured; the gable end must come down. ... It injures her property by reason of taking Mr. Worth’s property.”</p> <p>This appeal was first entered from the assessment of damages by the jury against the city for injury to the Snyder house, and against the county for land taken from the north side of the rear of the Snyder lot. But the appeal as to the county was withdrawn, and the award of viewers against the county for the land taken was accepted.</p> <p>The court below, LrviNGSTON, P. J., charged the jury, inter alia, that as Filbert street “does not come within 3 feet of her house, does not touch it anywhere; and there will be a portion of the house of Worth adjoining hers, and about 3 feet of his land between her building and Filbert street [she will not receive any injury, or sustain any damage by the opening of Filbert street, which the city of Lancaster is liable to pay. It is only liable to pay for buildings taken or injured by the opening of streets in said city. Her house not being taken or injured by the opening of this street, your verdict should be for the defendant.]”</p> <p>Verdict and judgment were for defendant.</p> <p>Tbe assignment of error specified the portion of the charge inclosed in brackets.</p> <p>Damages can be recovered for injury to a bouse, where the house is not actually taken but part of the lot on which it stands is taken, and the necessary support given by an adjoining house is taken by a street, whereby the end of the house must fall down.</p> <p>The Constitution of 1874, art. 16, § 8, provides that “municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured, or destroyed by the construction or enlargement of their works, highways, or improvements.”</p> <p>Corporations in which the legislature has vested the right of eminent domain are by this section made liable for damages resulting to private property from the construction, use, or alteration of their works, ways, or other improvements; in other words, to such damages as are ordinarily called consequential. Pusev v. Allegheny, 98 Pa. 526; Beading v. Althouse, 93 Pa. 406. ”</p> <p>If the plaintiff’s house, instead of being supported by Worth’s house, were (under similar circumstances as to ownership at the time of building) supported by props resting upon the Worth property, and the city had by the opening of its streets removed these props and thrown down the wall, the city would have been responsible. It will be remembered also that by the opening of this street the property of the plaintiff, on which this house stands, is entered upon and part of it taken. The plaintiff’s house, it is true, is not removed but it is “injured,” which brings this case within the act of 1854, and also “injured” so as to bring it within the provisions of the Constitution of 1874.</p> <p>The line of Filbert street does not touch the house for which the plaintiff claims damage.</p> <p>It is incumbent on Ambrose Worth to protect Caroline Snyder’s house in the event of the removal of his house, that might be an element of consequential damage to him under the decisions in Pusey v. Allegheny, 98 Pa. 526, and Reading v. Alt-house, 93 Pa. 406. But in tbis case tlie cause is too remote to bring it under those decisions.</p>

Oer-tioraris sur appeals from decrees of the Quarter Sessions of Huntingdon County refusing tavern licenses.

<p>Upon the trial of an indictment for murder it is proper to read the indictment to the jury.</p> <p>Tlie action of the court below in refusing to compel the commonwealth to call a witness whose name is indorsed on the indictment and who is present in court under subpmna of the commonwealth is not reviewable on writ of error.</p> <p>It is not error to permit the jury in a capital ease to take out with them the indictment on which are indorsed a conviction of murder in the first degree upon a former trial and a subsequent order granting a new trial.</p> <p>Cited in Com. v. Barry, 8 Pa. Co. Ct. 216, 218, and in Com. v. Bell, 20 Pa. Co. Ct. 223, 228, 7 Pa. Dist. R. 54.</p> <p>Note. — All witnesses who can testify to material facts in a criminal proceeding should be called by the commonwealth. Rice v. Com. 102 Pa. 408; Donaldson v. Com. 95 Pa. 21. But this is not required when the testimony would be merely cumulative. Com. v. Keller, 191 Pa. 122, 43 Atl. 198. And the appellate court will not reverse where the evidence could have been presented by the defendant. Com. v. Morrison, 193 Pa. 613, 44 Atl. 913. In Com. v. Fry, 198 Pa. 379, 48 Atl. 257, the lower court refused to compel the commonwealth to call the son of the defendant, who was the only eyewitness of the murder, and he was subsequently called for the defense.</p>

The facts of the case appear from the following portions of the charge of the court below, Wilsow, J.: The indictment charges and alleges that the prisoner before you murdered James C. Davis.

Certiorari sur appeal from a decree of tbe Orphans’ Court of Westmore-land County confirming tbe report of an auditor. Daniel Potts died June 26,1884, testate. His will contained tbe following clause: “To my son, Alpheus D., I give the note which I hold against him, together with the accrued interest.” Letters testamentary were granted to his executors, George W. Bierer and Alpheus D. Potts, son of the testator.

The following facts were agreed upon: Eirst, that said Pennsburg Independent School District was •duly erected and established by law; Second, that said school board, Levi Bitting, president; Samuel Summers, secretary; Charles Bitting, treasurer; Herman Hillegass, Jacob Sechler, and George S. Trumbore, defendants, are the duly elected and qualified school directors of said Independent School District; Third, that said relator, Daniel J. Snyder, is the duly elected and…

It appeared that the Conemaugh Building & Loan Association, appellee, held two mortgages of the same property made-by William McIntyre, each for $400 — one dated October 1,. 1883, the other dated December 21, 1882, and a bond reciting, the last mortgage, dated January 6, 1883.

The bill sets forth: (1) That,on September 28, 1875, defendant sold to John Moody part of a tract of land in Snyder township, Jefferson county (setting out the agreement) ; (2) that on July 1, 1879, defendant sold to John Moody other land in the same township (setting out the agreement) ; (3) that John Moody in his lifetime had paid defendant the full consideration, and had performed all covenants on his part; (4) that John Moody was dead, and that the plaintiffs were his…

<p>In a policy of insurance against lightning, where the live stock insured are described as contained in a certain barn, the fact that an animal insured was not present in the barn at the moment of its death by lightning, hut was in an adjoining field, does not impair the right of recovery. Haws v. Eire Asso. 114 Pa. 431, 7 Atl. 159.</p> <p>Alias and pluries writs are a continuance of the original process, and not the inception of a fresh suit. A suit is properly commenced within the prescribed time where the writ is issued within that time, although not served, provided an alias and pluries writ was issued so that the proper service was finally obtained.</p> <p>Where a loss under an insurance policy was total, there being but a single subject of insurance, which was entirely destroyed, and immediate notice of the loss was given to the defendant, a further detailed proof of loss is not requisite to a right of recovery.</p> <p>Where the insured made a bona fide effort to give notice and make out proofs of loss, and applied to the insurance agent for blanks for that purpose, and the latter had none on hand but sent to the company for them, and when they were received a full proof was made out and signed and sent to the company, which received it without objection after the time-prescribed in the policy, the court properly left the question to the jury whether there was a reasonable explanation of the delay; and the jury-having found that there was, — Held, no error.</p> <p>Cited in Haws v. St. Paul E. & M. Ins. Co. 130 Pa. 113, 118, 2 L. R. A. 52, 15 Atl. 915, 18 Atl. 621, and in Powell v. Agricultural Ins. Co. 2 Pa. Super. Ot. 151, 158, 38 W. N. C. 469, as to the questions involving insurance; and in First Nat. Bank v. Cooke, 3 Pa. Super. Ct. 279, 281, 39 W. N. C. 531, as. to the service of alias writs.</p> <p>Note. — The main question involved in this case was decided in Haws, v. Fire Asso. 114 Pa. 431, 7 Atl. 159, and distinguished in Haws v. St.. Paul E. & M. Ins. Co. 130 Pa. 113, 2 L. R. A. 52, 15 Atl. 915, 18 Atl. 621,. where the policy provided for exemption from liability where the animal' was killed while removed from the building. See also Reek v. Hatboro Mut.. Live Stock & P. Ins. Co. 163 Pa. 443, 30 Atl. 205.</p>

Tbe original certificate on which this suit is brought was for $1,175, payable to Albert A. Fisk, the plaintiff, husband of the member to whom the certificate was issued. The second certificate, referred to hereafter, was for $1,175, payable as follows: To Albert A. Fisk, the husband, $375; to Mary Fisk, the member’s mother, $300; to three sons of the member, $300, $100, and $100, respectively.

<p>Error to Common Pleas No. 2 of Philadelphia County to review the action of the court in discharging a rule for judgment notwithstanding an affidavit of defense in an action of debt upon an exemplification of record of judgment.</p> <p>The exemplification of record filed, upon which suit was brought, showed, inter alia, that the writ was issued against the defendant in the court of Queen’s bench in Canada, July 15,, 1881; that, on the same date, service was accepted, and on July 25, formal appearance entered for the defendants; that the cause of action was an alleged tort for furnishing goods which had beeu paid for, but were alleged by the purchaser to be defective in quality; and that judgment was recovered for $357.50 and $608.36 costs, March 30, 1882.</p> <p>The affidavit of defense, after setting out the facts recited in the opinion of the supreme court, proceeded as follows:</p> <p>“On April 15, 1886, the petition of the parties to whose use-this suit is now marked, was presented to the court of common pleas of Cambria county, setting forth their claim against the said association and praying for a citation to- be issued to the surviving liquidating trustees, requiring them to appear and show cause why the said decree of dissolution and proceedings-to dissolve the said association should not be opened and set aside, and the said trustees ordered to pay the plaintiff’s claim and costs, if any sufficient cause to the contrary should not be shown. Thereupon, a citation was issued in accordance with the prayer of the said petition, and an answer to the same was filed by Powell Stackhouse and this deponent, as survivors of those who had been liquidating trustees as aforesaid, in which answer-the respondents set up all the facts and matters connected with, the dissolution of the said company, the appointment of the-said trustees, the winding up of the business of the said association, and the distribution of the net proceeds of its property and the final discharge of the said trustees as is hereinbefore detailed and set forth.</p> <p>“Notwithstanding all the said facts were thus brought to the-notice and knowledge of the said court in the answer so filed, it entered an order or decree on the fourth day of October, 1886,. in the following words:</p> <p>“ ‘And now, October 4, 1886, this ease having been fully heard on petition, answer, and testimony, it is held and adjudged that the decree of this court of December 12, 1881, decreeing the final dissolution of the said Gautier Steel Company, Limited, be set aside, and the said company be restored to all its rights and privileges, and subject to all its liabilities.’ (Reported in 2 Pa. Go. Ot. 399.)</p> <p>“Notwithstanding the order of court last above recited, this deponent is advised and submits to the court that it was not in the power of the court of common pleas to restore to life and being such limited partnership association after it had been formally and properly dissolved in accordance with the laws of this state, and that such an order of court as last above recited could not and would not restore this deponent to his office of secretary in said association which he held at the time that dissolution of said association was declared in August, 1886.</p> <p>“Deponent further saith that neither he nor either of his associate liquidating trustees had any notice or knowledge at any time while the said association was carrying on its business, or while they were winding up the business thereof, under the trust aforesaid, that the plaintiff had or held any claim or demand against the said association in any way or manner whatsoever ; nor had they any notice of an assertion of claim by the plaintiff until the petition for the vacation of the decree of dissolution was filed on April 15, 1886.</p> <p>“This deponent also suggests and submits to the court that the copy filed in this case is not such an instrument of writing as entitles the plaintiff to a judgment "for want of an affidavit of defense.”</p> <p>The plaintiff took a rule for judgment for want of a sufficient affidavit of defense, which the court subsequently discharged.</p> <p>The assignments of error specified the action of the court in discharging the rule for judgment, and in refusing to enter judgment for the plaintiff notwithstanding the affidavit filed.</p> <p>The affidavit of defense filed in this case does not purport to be on behalf of the defendant, but is made by an individual not sued, and on his own behalf. It should, therefore, not be considered. Griel v. Buc-kius, 114 Pa. 187, 6 Atl. 153.</p> <p>The dissolution of tbe association in 1881 was obtained through a proceeding which contained the statement required by the act of assembly, that all debts and liabilities had been paid; this was not so, as the record of the cause in Canada shows that Billington’s suit was pending before any steps to dissolve were taken.</p> <p>There is no defense shown on the merits. There is no allegation of payment, fraud, or want of jurisdiction. The proceedings in Canada were with full notice to the defendant; for they appeared there and employed counsel who contested the cause, all of which is not denied.</p> <p>The record of this judgment comes within the very words of the affidavit of defense law. Act March 28, 1835 (1 Purdon’s Digest, p. 1356).</p> <p>It has often been decided in Pennsylvania that the records of judgments of foreign (state) courts come within the law. Hogg v. Charlton, 25 Pa. 200; Moore v. Fields, 42 Pa. 461; Lueken-bach v. Anderson, 47 Pa. 123; Palmer v. March, 64 Pa. 239; Power v. Winsor, 3 W. N. C. 360.</p> <p>And there is no difference in principle in this respect between state records and records of foreign countries. It is not our act of Congress for the authentication of records passed in execution of the constitutional provision, which gives them validity under our affidavit of defense law.</p> <p>Por the purpose of judgment for want of a sufficient affidavit of defense, a judgment insufficiently certified under the act of Congress is sufficient Wetherill v. Stillman, 65 Pa. 105.</p> <p>This court has held that judgments of other jurisdictions are sufficient under our affidavit of defense law, and this without reference to any rule of co-urt, it being clearly determined that such records are within our act. Moore v. Fields, 42 Pa. 467.</p> <p>The affidavit of defense law is to be liberally construed. Vul-canite Paving Co. v. Philadelphia Traction Co. 115 P'a. 280, 8 Atl. 777.</p> <p>Section 1 of article 14 of the Constitution of the United States, providing for the credit to be given to the records, etc., of the states, was adopted at a time when it was still an open question in international law as to the effect of foreign records; but it has since been settled by the courts of all civilized countries that such records are conclusive in the absence of fraud or</p> <p>want of jurisdiction, and therefore none of our eases put the conclusiveness of such records on tbe ground of tbe constitutional provision. 2 Am. Lead. Cas. ed. 1871, pp. 612, 615; 2 Smith, Lead. Cas. .6th Am. ed. 679, 841; Doglioni v. Crispin, L. E. 1 H. L. 301; De Cosse Brissac v. Eatbbone, 6 Hurlst. & N. 301; Imrie v. Castrique, 8 C. B. N. S. 415; Lazier v. West-eott, 26 N. Y. 146, 82 Am. Dec. 404.</p> <p>In tbe above New York case tbe whole question, which arose upon a Canadian record, is fully discussed.</p> <p>In Pennsylvania it has also been held that an Australian judgment showing jurisdiction is binding. Wernet’s Appeal, 91 Pa. 321.</p> <p>As to the suggestion that the judgment in Canada was entered after the decree of dissolution, it is a sufficient answer to say that the decree of dissolution having been entered wrongfully, so far as the steel company was concerned, upon an incorrect statement of the payment of its liabilities, it will be considered as not entered at all; and, indeed, the subsequent decree of October 18, 1886, vacating it, which was entered before this suit was brought, relates, of course, back to the date of the original decree of dissolution; and for that reason also in this proceeding it must be treated as a nullity.</p> <p>In England a foreign or colonial judgment can be attacked only for want of jurisdiction or fraud. Bank of Australasia v. Nias, 16 Q. B. 717; Notes to Duchess of Kingston’s Case, 2 Smith, Lead. Cas. Hare & W. 677.</p> <p>An action in England upon the record of judgment of a Erench court was sustained. Godard v. Gray, L. E. 6 Q. B.. 139; approved in Castrique v. Imrie, L. E. 4 H. L. 414.</p> <p>And in this country the same rule prevails. 2 Kent, Com. 119.</p> <p>A judgment of New Brunswick was held conclusive in Maine. Eankin v. Goddard, 55 Me. 390.</p> <p>A judgment of the superior court of appeals of the four free cities of Germany was held conclusive in New York. Konitzky v. Meyer, 49 N. Y. 571; Andrews v. Herriot, 4 Cow. 520, note 3.</p> <p>The judgment of a justice of the peace, of Pennsylvania, not certified under the act of Congress, was held a good cause of action in Ohio. Silver Lake Bank v. Harding, 5 Ohio, 547.</p> <p>The English and American cases will be found collected and commented upon in 4 Wait, Act. & Def. p. 189.</p> <p>A company organized under the act of 1874 is in effect a corporation, or at least has the privileges, incidents, and characteristics of a corporation. Com. v. Sandy Lick Gas, Coal & Coke Co. 40 Phila. Leg. Int. 272; Patterson v. Tidewater Pipe Co. 12 W. N. C. 452; Freedley, Lim. Part. p. 6.</p> <p>Death of the defendant at any time before the service of the writ, or after service and appearance and before plea pleaded, is always a good plea in abatement 3 Chitty, PI. p. 20, 7th ed.</p> <p>And the defendant being dead some other party mnst intervene and plead his death in abatement M’Cabe v. United States, 4 Watts, 325; Wentworth, PL 49; 1 Comyn’s Digest title, Abatement; Rowan v. Woodward, 2 A. K. Marsh. 140.</p> <p>A corporation is under no implied obligation to its creditors to continue to carry on business. The creditors of a corporation are not parties to the charter contract, nor have they any interest in the franchises granted by the state to the body of cor-porators. Morawetz, Priv. Corp. § 806, p. 773; Mumma v. Potomac Co. 8 Pet. 286, 8 L. ed. 947, and note; Smith v. Chesapeake & O. Canal Co. 14 Pet. 45, 10 L. ed. 347; Curran v. Arkansas, 15 How. 310, 14 L. ed. 708;.Chicago L. Ins. Co. v. Needles, 113 U. S. 574, 28 L. ed. 1084, 5 Sup. Ct. Rep. 681; Mobile & O. R. Co. v. State, 29 Ala. 573; Barr v. Bartram & F. Mfg. Co. 41 Conn. 506; Ring v. Accumulative Life Fund & General Assur. Co. 3 C. B. N. S. 151; Kearns v. Leaf, 1 Hem. & M. 707.</p> <p>The method for enforcing the claims of creditors would be by establishing them at the settlement of the accounts of the trustees charged with the liquidation of the company’s affairs, or, if not proven before and paid by the latter, then by reclamation against the shareholders, who receive any distributive shares from the proceeds of the company’s assets. This remedy is a purely equitable one, and to be enforced by proceedings in equity. McLean v. Eastman, 21 Hun, 314; Oonro V. Gray, 4 How. Pr. 166; Fisk v. Union P. R. Co. 10 Blatchf. 518, Fed. Cas. No. 4,830; Irons v. Manufacturers’ Nat. Bank, 6 Biss. 301, Fed. Cas. No. 7,068; 2 Morawetz, Priv. Corp. pp. 765, 766, 768; Orowther v. Upland Industrial Co-op. Asso. 1 Del. Co. Rep. 264.</p> <p>The inability to call the dissolved company into court through properly authorized officers shows the whole proceeding vacating the dissolution to have been coram non judice.</p> <p>The cause of action in this case, as the record filed shows, did not arise out of any contract to pay money, express or implied; and inasmuch as the text of the affidavit of defense law does not, in terms, include records of this character, the operation of the act should be limited to exclude such cases as the present. Any extension of the act to cover them should result from legislative and not judicial action.</p> <p>In all the Pennsylvania cases on the other side, the records of which copies were filed were those of a judgment in some sister state within the United States of America, with the single exception of Wernet’s Appeal, 91 Pa. 321, which was not a case of an application for a judgment for want of an affidavit of defense, but was an application to open a judgment entered by confession, and is in nowise applicable to the question involved here.</p> <p>The argument of the defendant in error, as to the service of the writ, is based on the assumption that the question of the return of the sheriff was before the court on this writ of error; of course, no such question is on this record, and if it were, it would be unnecessary to say that the conclusiveness of a sheriff’s .return in a case like this has been so often settled by this court, that it cannot now be a disputed question. Kleckner v. Lehigh County, 6 Whart. 70; Kennard v. New Jersey E. & Transp. Co. 1 Phila. 41.</p> <p>The argument of the defendant in error, and cases cited in relation to the proceedings in cases of defunct corporations, have no application here. If this suit had been brought without first having the decree of dissolution set aside, there might have been some force in it; but this is not a corporation, and the mode of procedure in suits against it is regulated by the statutes applicable to such associations, and therefore such mode must be followed.</p> <p>There is no appeal from, or writ of error to, the order of Cambria county court, setting aside the decree of dissolution which is part of the record of this cause, as it appears in the affidavit of defense in full. Such order is, therefore, conclusive; and the association is not dead but alive, and was when this suit was brought.</p>

2 of Philadelphia County to review a judgment for the plaintiffs for' want of a sufficient affidavit of defense. The facts were as follows: The firm of Abner Bertolet brought suit against Jesse C. Coulston and Charles W. Coulston upon a book account, claiming $153.02 and allowing a credit of $8.07.

4 of Philadelphia County to review a judgment for plaintiffs in an action of scire facias on a mechanics’ lien. Affirmed. A mechanics’ lien was filed by Riehle Brothers against a grain elevator of the Girard Point Storage Company, for the value of certain scales for weighing grain, furnished by them under a contract between them and a firm, Malster & Reaney, contractors with the defendant for the erection of the elevator and for furnishing the machinery therein.

2 of Allegheny County, in equity. Bill in equity, wherein Henry Weaver and. Emily Weaver, his wife, in right of his wife, were complainants, and Martin Peed was defendant, with notice to John Barton and A. M. Brown.

<p>The terms of a will, where there was a shortage of anticipated income,, considered.</p>

1 of Philadelphia County dismissing the exceptions to an auditor’s report, disallowing a claim of D. E. Kelly, a contractor.

2 of Philadelphia County to review a judgment entered on a verdict for the defendant in an action on the case. This was an action brought by John Kelly against the Mana-yunk & Roxborough Incline Plane & Railway Company to recover damages for injuries to the plaintiff caused by the alleged negligence of the defendant company.