Volume 70 — Pennsylvania State Reports

<p>Error to the District Court of Allegheny county: No. 181, to October and November Term 1870.</p> <p>This was an action of assumpsit brought January 11th 1867, by H. C. Mackrell and S. A. Johnson, partners, for the use of H. C. Mackrell, against J. AV. Cook, Henry Eaton, R. F. Smyth e, J. H. Oliver, Robert AV. McPherson, John H. Miller, David Sample, T. MacConnell and Eli Neeld.</p> <p>The plaintiffs declared against the defendants jointly, that the plaintiffs, being attorneys at law, had been employed by the defendants to prepare an application and conduct other legal proceedings in the Court of Common Pleas for the removal of one James Blackmore from the office of sequestrator of the AVashington and Pittsburg Turnpike Road Company and procure the appointment of Robert Johnston; that the plaintiffs performed their duty as attorneys in that behalf; that tlieir services were worth $500, which the defendants promised to pay, but had refused, &c.</p> <p>On the trial before Kirkpatrick, J., February 15th 1870, Mackrell, the plaintiff, testified that his partner Johnson had put into his hands a petition for the removal of Blackmore and the appointment of Robert Johnston as sequestrator; that he subsequently saw Cook, Smythe and Eaton, three of the defendants, who told him to proceed and have Blackmore removed. The petition being defective, Mackrell prepared another, which was sworn to by Neeld, another defendant; after proceeding in the case and performing a considerable amount of labor, a compromise was proposed, which Cook advised Mackrell to accept. Johnson, the other plaintiff, testified that Oliver, another of the defendants, had been in the plaintiff’s office about the business. There was no evidence that any other one of the defendants than those mentioned in the above testimony had consulted with the plaintiffs or had spoken to them at any time about the business. The petition was signed by about seventy persons, including the defendants. The plaintiffs sent bills to the different signers of the petition and collected one of them.</p> <p>The defendants gave evidence in conflict •with that of the plaintiffs ; also that some of them had no interest in- the proceeding, but had signed at the request of -Robert Johnston, the applicant for the appointment of sequestrator; that no one but he was concerned in the employment of the plaintiffs, and that he had paid them $15, the amount of the bill they, presented to him. .</p> <p>The defendants’ points and the answers, which were the only errors assigned, are as follows:—</p> <p>4. If the jury believe the evidence for the defence, plaintiffs cannot recover.</p> <p>Answer: “ Refused. We leave the liability or non-liability of these defendants to be discovered and determined by the jury, from all the facts in the case.” -</p> <p>5. Under the pleadings, the plaintiffs cannot recover, and your verdict must be for defendants.</p> <p>Answer: “Refused.”</p> <p>6. The plaintiffs, in electing to charge the signers of the petition in the proportions in which they — plaintiffs—thought each signer-was benefited by their services, plaintiffs are debarred from recovering from each defendant more than the specific sum charged in the bill sent to each defendant.</p> <p>Answer: “ Refused. The jury have heard all of the testimony in regard to the separation of bills, and we leave it to them to discover what was intended by the manner in which these bills were sent.”</p> <p>The verdict was for the plaintiffs for $250. The defendants removed the case by writ of error to the Supreme Court.</p>

52. This was an ejectment, brought July 24th 1860, by Frederick Maul and Mary E. his wife, formerly Mary E. Jacobs, in her right, against John Rider and P. Deitrick, for 300 acres of land in Winslow township. The case had been three times tried and removed to the Supreme Court; it is reported in 10 Wright 376, 1 P. F. Smith 377, 9 Id. 167. A nonsuit was suffered as to Deitrick. Both parties claimed under George Latimer, deceased.

160, to October and November Term 1870. On the 19th of June 1868 (to June Sessions 1868, No. 8), a petition of inhabitants of Vernon township was presented, setting out that part of a road running from the “ Dunham road” was inconvenient, &c., and praying “for a view to change the location of said road between said Dunham road and a point westwardly on said road, distant about one hundred rods where said road turns and takes a north-westerly direction so as to obviate said…

<p>Appeal from tbe Court of Common Pleas of Crawford county: In Equity: No. 174, to October and November Term 1870.</p> <p>This was a bill filed August 22d 1867, by H. S. Huidekoper and E. W. Huidekoper against Lewis Masson and Alexander Besanson.</p> <p>Tbe bill set out that tbe plaintiffs, being tbe owners of two adjoining lots on Chestnut street, Meadville, sold tbe westernmost lot to the defendants; that they entered into an agreement with tbe defendants, by which the defendants stipulated to build on the line the foundation-wall for two houses, one to be erected by the plaintiffs and the other by the defendants on their respective lots, for which the plaintiffs as their share, were to pay to the defendants $250, which the plaintiffs paid, and both parties were to have an equal interest in the foundation-wall; that it was further agreed that the plaintiffs should erect, at their own expense, their west wall of brick 14 feet in height, and the defendants were to continue it 14 feet higher, the plaintiffs paying to the defendants 50 cents per thousand for all the bricks used in the second 14 feet; a third story to be erected at the equal expense of the parties ; that the plaintiffs erected the first 14 feet, and notified the defendants to erect the second 14 feet, but they refused to do so, and the plaintiffs finished the whole wall; that the defendants were preparing to build into the wall, “ with a view to enjoy all the rights to which they wmuld have been entitled had they performed their contract;” that the plaintiffs gave defendants notice not to interfere with the wall until they had complied with the contract, but that notwithstanding they were breaking into the wall.</p> <p>The prayers were:—</p> <p>1. For a decree that the defendants were trespassers, &c.</p> <p>2. For an injunction preliminary until hearing and perpetual afterwards, restraining the defendants from interfering with the wall in any way.</p> <p>8. For general relief.</p> <p>A hearing was appointed for August 23d 1867, when, by agreement of parties, “ no order was granted, but a bond was signed by respondents, with approved security, conditioned for the payment of whatever sum might be adjudged in favor of complainants,-' the same to be without prejudice to the rights of parties. The case to proceed as if no bond had been given, and preliminary injunction had issued.”</p> <p>They further agreed at the same time, “that John Henderson be appointed to take the testimony of the witnesses in this case, and to be read upon the hearing, the complainants to close upon Friday, the 24th instant, the respondents to close upon the 27th instant, and the matter to be heard upon the 28th instant, upon the merits of the case, the same as though answer had been filed and issue formally joined, the respondents reserving the right to put in an answer in the mean time, to have all the effect of an answer in equity, and also reserving any and all manner of objections that may be raised and set up in this case.”</p> <p>The defendants filed a bond in accordance with the agreement.</p> <p>On the 14th of December 1869, the defendants filed a demurrer, that the plaintiffs had a complete remedy at law. The demurrer was overruled on the 24th of March 1870, and on the 11th of April defendants put in an answer, by which they admitted most of the allegations of the bill, but averred that when they purchased the lot, and before building the foundation-wall, part of the inducement was that the plaintiffs would convey to them an equal right to use the stairway between the buildings of the parties; that there was to be a doorway from the second story of the plaintiffs’ buildings to the defendants’, which was at all times open to the defendants; that when the agreement was made to build the foundation on which the partition-wall was to rest, it was agreed the defendants should have the use of the stairway; that the agreement for building the partition-wall, as set out in the bill, was on the express condition that the right to the use of the stairway should be conveyed to the defendants in writing; that on the completion of the first 14 feet of the wall, the defendants offered to go on with the second 14 feet, upon receiving a conveyance in writing of the right to the stairway; that the plaintiffs refused to give such conveyance, and the defendants withdrew from the arrangement, and gave the plaintiffs notice that they would not build the second 14 feet, and would hold themselves discharged from their contract, unless the plaintiffs complied with contract as to the stairway; that the refusal of the plaintiffs made it necessary for the defendants to build a stairway; that the wall built by plaintiffs was not perpendicular, and the defendants therefore were compelled to put up studding to straighten the partition on their side; that they suffered damage by the plaintiffs’ failure to perform their contract,to the amount of $1500.</p> <p>Testimony was taken, and the case referred to George Bemus, Esq., as master. He found the sale of the lot by the plaintiffs to the defendants, the agreement as to building the foundation and partition-walls, as set out in the bill, “ that the plaintiffs carried out their contract in that behalf, and that the defendants failed upon their part; that the plaintiffs at their own expense erected the three entire stories of the party-wall; that the defendants commenced building into the partition-wall and were notified by the plaintiffs not to proceed ; but they went on, and that an injunction being asked for, it was not issued in accordance with the agreement of the parties as above stated.”</p> <p>He further found that the partition-wall was erected by the plaintiffs at an expense of $1488 ; and that there was no contract in relation to the stairway, as averred in the defendants’ answer.</p> <p>Under the general prayer for relief he decided as follows: “ that the defendants pay to the plaintiffs the sum of $744, it being one-half the expense of the erection of the party-wall,” with interest from January 1st 1868, and costs.</p> <p>Exceptions were filed by the defendants to the report of the master; they were overruled, and a decree made as reported by the master.</p> <p>In making the decree, the court (Johnston, P. J.) delivered the following opinion:—</p> <p>“ We are of the opinion that this was not in the first instance a case for equitable interposition. At least our doubts as to the right to appeal to a chancellor are so great that we think we would have dismissed the bill. But we think parties may consent to have their rights passed upon in the equity side of the court even when they could have demanded a trial at law.</p> <p>“ The agreement of April 22d 1868, stipulates that the case shall be heard upon its merits, reserving a right to the defendants to put in an answer if they desired. The reservation of any and all manner of objections that may be raised or set up in this case can only mean such as go to the merits of the ease, or else the agreement is useless and' ought not to have been filed.</p> <p>“ We are then of the opinion that the proceedings were properly referred to a master, and upon the testimony we see no reason to disagree with the report. If the court has jurisdiction in equity, it had power to dispose of any question in the case, and among them the amount due complainants from respondents. Let a decree be entered according to the conclusions of the master, and as reported by him.”"</p> <p>The defendants appealed, and assigned the decree for error.</p>

<p>1. A caveat was entered April 6th 1795, to returns of certain surveys in different blocks ; in an ejectment for two surveys in one of the blocks, made August 25th 1794, returned, and patented to Barton, a certified copy of an agreement of the original owners, Barton being one, to settle the line between the two blocks, entered into and filed in the caveat before the Board of Property, could not shift the location of the lands in controversy.</p> <p>2. The agreement, reciting that it had been made on the basis of a draft, then before the parties, stated the location of the tracts within the blocks, and was offered as an admission of Barton, under whom the plaintiff claimed, of the location of the land in dispute, the draft not being produced or accounted for: Reid, inadmissible without the draft.</p> <p>3. The defendants offered in evidence the record of an ejectment by Barton against other parties for other lands; — the record containing a bill of exceptions, — on the ground that the testimony in that case was evidence of the admissions of Barton as to the location of the lands: Reid, to be inadmissible; the testimony of a party’s witnesses in one suit not being evidence against him in another suit for a different subject.</p> <p>4. By producing a witness, a party admits for that case 'that he is credible, but does not admit that everything he says is true. He may contradict his witness or show he was mistaken, but he cannot directly impeach his veracity.</p> <p>5. Where the record of a former suit is evidence, parol evidence may be given of what transpired on the trial to show that it was the same subject-matter which was passed upon.</p> <p>6. The original assessment of unseated lands contained the name of warrantee, number of acres, valuation and rate, but the amount of tax was not carried out: Held, to be evidence of the assessment of the land, which became debtor by being returned assessed and valued, and the rate fixed.</p> <p>7. Treasurer’s deeds for lands in the same block with that in dispute were evidence-to show location, although not accompanied by evidence of an assessment and valid sale for taxes; but would not have been evidence to show title.</p> <p>8. Assessment to a party is not of itself evidence to establish adverse possession, but may be corroborative, if there be other evidence of possession.</p> <p>9. When a case is ordered to be tried by a struck or special jury, no special venire is necessary to summon the jury.</p> <p>10. A special venire is required only in case of a view.</p> <p>11. An objection to the regularity of summoning a jury should be by challenging the array; and an exception to it taken before the jury is sworn.</p> <p>12. A peremptory challenge may be made to a juror on a struck list.</p> <p>13. Location of lands under the land law of Pennsylvania considered in this case-.</p> <p>14. Truby v. Seybert, 2 Jones 101, distinguished. Schwenk v. Umsted, 6 S. & R. 351, recognised.</p>

<p>Error to the Court of Common Pleas of Westmoreland county: No. 129, to October and November Term 1870.</p> <p>This was an action of assumpsit brought, July 2d 1866, by George Braden against John George, to recover $2000 — the sum paid by plaintiff to defendant for one-third of a share of stock in the Rynd Oil Company.</p> <p>The jury found that in March 1865, the defendant said to the plaintiff, that if he would take the stock at $2000, he (defendant) would guaranty to pay him from 86 to 37 per cent, and his money back whenever called on; the plaintiff paid him the $2000, and the defendant afterwards gave him a certificate for the stock. About a year afterwards, the plaintiff demanded repayment of his money; no dividend had then been declared. The defendant refused to repay the money. The suit was brought without a tender of the stock at any time.</p> <p>The defendant asked the court to charge:—</p> <p>“ This being an action of assumpsit, the plaintiff cannot recover without tendering or offering to transfer to the defendant the stock he held'before the bringing of the suit, and there being no evidence in the case of such tender or offer to transfer, the plaintiff cannot recover.”</p> <p>The court (Buffington, P. J.) answered the point in the negative ; and there was a verdict for the plaintiff for $2500.</p> <p>The defendant took a writ of error, and assigned the answer of his point for error.</p>

197, to October and November Term 1870. The bill in this case was filed, December 9th 1869, by William McOreery and John H. McCreery against John Van Ohlen; it set out: 1-4.

209, to October and November Term 1870. On the 30th of November 1868, Matilda Napier and Mary A. McCracken brought an action of ejectment against William M. Darlington for one and a half acres of land in Indiana township.

<p>Error to the Court of Common Pleas of Allegheny county: No. 98, to October and November Term 1871.</p> <p>This was an action of assumpsit by A. Aronson against The Cleveland and Pittsburg Railroad Company, brought to March Term 1869. The plaintiff declared that the defendants were common carriers for hire by railroad and cars from Waynesburg, Ohio, to Alliance, in the same state, and at the request of the defendants, the plaintiff delivered to them, as such carrier, three boxes of goods of the value of $1500, to be carried from Waynesburg to Alliance, there to be safely delivered by them to the plaintiff, for a certain reward, and in consideration thereof they undertook and promised the plaintiff to take care of the said goods, and safely carry the same by the means aforesaid for the plaintiff; and whilst said goods were in the care and custody of the defendants, they as such carriers undertook and promised the plaintiff to reconvey and safely carry the said goods by means of their railroad and cars from Alliance to Pittsburg, and safely deliver them at Pittsburg for the plaintiff for certain other reward, and although the defendants received the goods in the manner and for the purpose aforesaid, and had the care and custody of them at Waynesburg, to be safely delivered at Pittsburg for the plaintiff, yet they did not take care of the goods; and although they delivered two of the boxes of goods, yet they did not safely carry and deliver the third box, nor deliver the same for the plaintiff at Pittsburg; and the defendants, being such carriers, “so carelessly and negligently behaved themselves with respect to the said goods of the plaintiff, that by and through the mere carelessness, negligence and improper conduct of the defendants,” &c., one box of the goods, “ to wit, four overcoats of the value of $500, whilst the defendants as such carriers had charge thereof, * * * became and were and are wholly lost to the plaintiff, * * * and the defendants afterwards, * * * in consideration of the premises promised the plaintiff to pay the said sum of $500,” &c.</p> <p>The defendants pleaded non assumpsit.</p> <p>The jury found a verdict for the plaintiff for $524.08.</p> <p>The defendants moved for a new trial; also in arrest of judgment, for which they assigned the following reasons:—</p> <p>1. The declaration in this ease shows no cause of action.</p> <p>2. The declaration is inconsistent, and contradictory in itself.</p> <p>8. The record shows no evidence to sustain the allegations of the declaration.</p> <p>4. The court erred in refusing to charge the jury as requested on the points of defendant.</p> <p>5. The declaration alleges no non-delivery therein, as having been shipped from Waynesburg to Alliance, and the record shows that the court charged the jury that the defendants were liable in this action as common carriers for that transit, and were bound to show a delivery of the same at Alliance, or a loss during transit coming under the exceptions in the bill of lading for said boxes contained, or the exceptions of the common law, which charging under the pleadings is assigned as error and cause for arrest of judgment.</p> <p>The court denied the motion for a new trial, but arrested the judgment.</p> <p>The plaintiff assigned this for error on the removal of the case to the Supreme Court.</p>

128, to October and November Term 1871. This was an action of debt brought, April 1st 1871, by Mary A. Laverty against John Kleppner, in which there was the following case stated:— Felix Laverty died March 30th 1869.

210, to October and November Term 1870. This was an action of assumpsit brought, August 21st 1869, by “Hartupee & Co., for the use of John Cuthbert, now for the use of John Morrow,” against William A. Caldwell.

78, to October and November Term 1871. The decree in the court below was in the distribution of the proceeds of the sale of real estate under,an execution against “ G. L. Ebbert and Ardel Maclind, partners trading as Ebbert & Maclind.” The sheriff returned the land sold for $2650, which was referred for distribution to D. T. Watson, Esq., as auditor. He reported that the defendants in the execution were partners in Allegheny county.

<p>Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1871, No. 27.</p> <p>This was a scire facias sur mortgage, issued July 8th 1870 by Thomas Jones against John Peck and others.</p> <p>The mortgage was dated June 1st 1866, to secure the payment of $1000, part of the purchase-money of a lot of 5| acres of land purchased from the plaintiff by the defendants. The defendants filed an affidavit of defence, viz.:—</p> <p>“ The defendants purchased the grounds covered by said mortgage, from plaintiff for the purposes of a cemetery, and made that fact known to plaintiff. Plaintiff made to defendants a general warranty deed for said lands, bearing the same date as said mortgage, and defendants gave said mortgage for the unpaid purchase-money. Defendants then procured a charter of incorporation at November Term, Court of Common Pleas of said county, and, in pursuance of their original purpose, and as a corporation, have sold lots for burial purposes, and such lots have been since used for said purpose. Within a short time past, defendants learned that a street, called Bedford avenue, had been laid out, over said grounds, in 1840, and they, defendants, have received notice from the city engineer, that the city of Pittsburg, within whose territory said cemetery grounds are situated (being formerly in Pitt township, hut, since consolidation, in the city), is about to open said Bedford avenue, over and through said cemetery grounds, and is taking steps toward doing so, having served notice, &c., of such intention upon defendants. Defendants say, that the opening of said Bedford avenue over their grounds would destroy them for cemetery purposes, and they are advised, and believe that said Bedford avenue was and is an easement and encumbrance, against which the said general warranty deed of plaintiff provided. And they say that if said street should be opened over their grounds, that the damage and injury they would thereby sustain would and will greatly exceed the amount claimed in this suit; and further 'say not.”</p> <p>The court entered judgment against the defendants for $1146.24 for want of a sufficient affidavit of defence.</p> <p>The defendants took out a writ of error, and assigned for error the entering of the judgment.</p>

215. This was an action on the case brought, May 2d 1868, by John D. Kerr and Christian Smith against C. A. Fairbanks. The facts on which the action was founded are the following:— The evidence was not in the paper-book. On April 27th 1868, the plaintiffs below had a contract to pave the side-walk in the town of New Castle, with flag-stones, and had provided flag-stones for that purpose.

207, to October and November Term 1871. . This certiorari was issued to bring up the record of the Court of Quarter Sessions in the matter of auditing the bounty accounts of the 11th (late 7th) ward of the city of Pittsburg. On the 4th of April 1866, an Act of Assembly (Pamph.

of Common Pleas of Allegheny county: No. 25, to October and November Term 1871. The decree in this case was in the distribution of the proceeds of the sheriff’s sale of the personal property of James H. Moore. The amount of money paid into court was $131.04. The distribution was referred to W. Gr. Hawkins, Esq., as auditor.

<p>Appeal from the decree of the Court of Common Pleas of Allegheny county: In Equity: No. 14, to October and November Term 1871.</p> <p>On the 15th of September 1866, a bill was filed by James Andrews against John Huckenstine: William Hamilton and James Wetherspoon having become interested after the filing of the bill, the court allowed the bill to be amended by adding their names as complainants.</p> <p>The bill charged as follows :—</p> <p>1 and 2. Andrews the plaintiff, about 1862, became owner of a piece of land in Reserve township, Allegheny county, a.nd had since erected buildings and other improvements; planted a vineyard and orchards, which had begun to bear and become of great value, and he resided on the land.</p> <p>3 and 4. The defendant in 1866 bought a piece of land adjoining, and made preparations for erecting brick-kilns and burning bricks; upon ascertaining which the plaintiff gave the defendant notice that by doing so he would injure and destroy the value of the plaintiff’s property above mentioned.</p> <p>5. The defendant since the notice had continued to manufacture brick, had erected a kiln within 15 feet of plaintiff’s land, and commenced burning brick; had commenced erecting a winter-house on his land to manufacture brick through the winter, and intended to carry on the business throughout the year for an indefinite time.</p> <p>6 and 7. The winds prevailing almost the whole time over the land wrere from the west, and blew the smoke, vapor and gases from the kiln and winter-house over the plaintiff’s land, the smoke, &c., were injurious to vegetation, would destroy the plaintiff’s vineyard and orchard, plants, trees and shrubbery ; would render the land unhealthy and unfit for plaintiff’s residence; would depreciate the value of his land; and he would thereby lose all the improvements he had made.</p> <p>8. The defendant had been requested to desist, but he had refused, and declared that he would continue making and burning brick on his premises. The prayer was that the defendant might be restrained from burning brick on his land, and decreed to make compensation for the injury already done to the plaintiff, and for general relief.</p> <p>The defendant’s answer admitted the allegations of the 1st, 2d, 5th and 8th paragraphs of the bill, and denied the allegations of the 6th and 7th paragraphs.</p> <p>As to the 3d, the defendant averred that he had léased the premises in 1862, and purchased the fee in 1865; he admitted the other allegations in this paragraph.</p> <p>As to the 4th, he averred that “ the plaintiff, instead of giving notice at once to defendant, at one time agreed with a full knowledge that respondent was going to erect a winter-house in which to make bricks, to furnish respondent with bricks to build the winter-house, and that afterwards, when respondent was ready to take the bricks, and his work had so far progressed that he needed them, then, and not till then, the plaintiff refused to give the bricks in accordance with-his contract.”</p> <p>A replication was filed, and the case was referred to John Mc-Claren, Esq., as examiner and master.</p> <p>A large amount of testimony was taken by each party.</p> <p>The plaintiff’s was that the winds usually prevailed from the west so as to carry the smoke, gas, &c., from the brick-works over the plaintiff’s lands, and injure the foliage of the vines and their fruit, and would entirely destroy the young shoots in the spring of the year; all the vines, &c., would eventually be destroyed by its continuance; that the plaintiff’s vines had been radically injured; that the land of the plaintiff was good, and very suitable for raising grapes and other fruit. There was evidence also that the smoke, &c., from the kilns rendered the plaintiff’s land and the houses on it very inconvenient and uncomfortable as a residence.</p> <p>The defendant’s evidence was in conflict with the plaintiff’s as to the injury to the plaintiff’s vineyard, &c., by reason of the kilns. Many of the defendant’s witnesses testified that the injury arose from thé “wet, spouty and swampy” character of the plaintiff’s land, and that the injury might be remedied by proper drainage.</p> <p>The plaintiff in rebuttal gave evidence to show that his land was not damp and swampy. The master found that plaintiff gave the defendant notice as alleged in the bill; that the soil and exposure of the vineyard, &c., rvere good and well adapted to the culture of vines, fruit-trees, shrubbery, &c., and that the ground had been properly planted and cultivated; that winds during nearly the whole year carry the smoke, gas, &c., from defendant’s kilns across plaintiff’s land, and had injured his vineyard, orchard, &c., and if continued wo'uld destroy them and would injure and depreciate the premises of the plaintiff for a residence and a home.</p> <p>The defendant excepted to the finding of the master.</p> <p>The court (Sterrett, P.J.) overruled the exceptions, confirmed the report, and decreed that the defendant be enjoined from making bricks on his land mentioned in the bill, “ in such manner as harmfully or injuriously to affect the vineyard,” &c., of the plaintiff, or render his premises unsuitable or unfit for a residence or home, and from allowing or permitting “ the smoke, gas or vapor arising from the brick-kilns and winter-house on said lands of defendant to be blown over the lands of the plaintiff,” so as to injure his vineyards, &c., or render his premises unsuitable for a home.</p> <p>Tbe defendant appealed to the Supreme Court, and assigned this decree for error.</p>

17, to October and November Term 1871. In the matter of the Independent School District of Wilkins township.

73, to October and November Term 1871. In the partition of the real estate of James S. Neeld, deceased.

18, to October and November Term 1871. This was an action on the case brought December 2d 1868, by John Donahue against The Pittsburg, Allegheny and Manchester Passenger Railway Company, for injuries to his son Michael Donahue, by the negligence of the defendants’ servants.

<p>Certiorari to the Court of Quarter Sessions of Allegheny county: No. 43, to October and November Term 1871. In the matter of opening Eorbes street in the City of Pittsburg, and the assessment of damages therefor.</p> <p>On the 16th oí June 1836, an Act of Assembly (Pamph. L. 750) was passed directing that a tract of land adjoining the eastern side of the city of Pittsburg should be set off, defined by limits and surveyed (as in the act specified), as a city district of that city. The Court of Quarter Sessions of Allegheny county was to appoint three commissioners to survey and sét off the district, and to subdivide it into sections, to lay out a general plan of the district and survey, locate and mark on it such streets, alleys and squares as they should think proper, giving them such arrangements and dimensions as should in their judgment best meet the wants and convenience of any future population. When the commissioners should have made a map of the district, with the streets, lanes, alleys, &c., they were to file it with the Clerk of the Court of Quarter Sessions, who was to give public notice of the filing, so that any one injured might object. The court was to hear and determine any objections and make any alteration that'might be deemed proper, and direct the plan with such alterations as might have been made to be recorded, and thereafter the plan should be taken and allowed as a general plan for the district for the purposes contained in the act, and the streets, lanes and alleys so approved were to be deemed, adjudged and taken as public highways.</p> <p>On the 22d of March 1837, commissioners were appointed; they filed their report July 17th 1840; objections were filed to it; on the 19th of July 1841, the Court of Quarter Sessions decided that the Act of 1836 was unconstitutional, and made a decree refusing to direct the plan to be established or recorded. This decree was reversed by the Supreme Court, and the act declared valid (Pittsburg City District, 2 W. & S. 320); the record was remitted to the Quarter Sessions for further proceedings, and on the 19th of October 1843, that court finally approved and confirmed the plan, with certain alterations. This adoption- and approval was endorsed on the plan, but does not otherwise appear on the records of the Quarter Sessions. Forbes street was one of the streets laid out in the plan.</p> <p>On the 1st of March 1845, an act was passed (Pamph. L. 88) authorizing the councils of Pittsburg to admit any sections on the plan into the city, as an additional ward, when it should appear by an election that a majority of the freeholders and taxpayers should be in favor of such admission. In accordance with an election held in pursuance of this act, sections 39, 40 and 41 were admitted into the city as the 8th Ward by ordinance of councils passed December 4th 1846. This ^ward contained the part of Forbes street specially considered in this case. By another ordinance of councils, the streets, lanes and alleys in the 8th and 9th Wards of Pittsburg contained in the plan “ of the city district as- the same was determined, established and directed to be recorded” in the Quarter Sessions under the provisions of the Act of 1836 were “ declared to be opened as a part of said general plan for the uses and subject to the regulations and exercise of powers declared by said law.”</p> <p>A supplement to the Act of 1836, passed March 15th 1847 (Pamph. L. 376), directed the viewers appointed under that act, in opening any street in the plan of the city district, to take into consideration the advantages accruing to the petitioners for damages, and to ascertain, as far as possible, all owners who might receive any benefit to their property adjacent to such street, and apportion the amount upon such owners fairly and equitably; and if in any case they should find that the amount of damage could not be equitably assessed on adjacent property, they might direct that an amount not exceeding one-fourth of the whole sum be paid by Allegheny county, subject to the approval of the court. By another supplement passed April 5th 1849 (Pamph. L. 342), it was enacted that if the viewers should report that they could not find property on which they could equitably assess the damages, or three-fourths of the same, the court might vacate the street or any part of it, and the viewers might assess all property that might be benefited, whether adjoining the street or not.</p> <p>By an act passed March 30th 1855 (Pamph. L. 152), three commissioners were appointed to relocate certain streets in the city district, so as to conform to the shape of the ground and public convenience, and return a plan of their location to the Quarter Sessions, which should be taken as part of the original plan of the district unless excepted to after notice. Upon exceptions the plan might be altered or approved by the court and either party might remove the proceedings to the Supreme Court whose action should be final.</p> <p>On the 21st of January 1860, John Aiken presented a petition to the Quarter Sessions, representing that Forbes street had been laid out on the “ City District Plan,” 60 feet wide, extending wholly on his land, 206 feet east from Marion street, and taking “in its course a two-story brick dwelling-house;” that the streets on the plan had been declared open by ordinance of councils of February 2d 1847; that on the 8th of May 1847, on his application the court appointed viewers to assess his damages; that the viewers assessed his damages at $2500 and reported that there was no property adjacent benefited thereby on which the damages or three-fourths could be assessed; and prayed that Forbes street, so far as it passed over his land, should be vacated.</p> <p>On the 7th of March 1860, the court decreed the vacation of Forbes street where it passed over Aiken’s land, as set out in his petition.</p> <p>Another act relating to the streets, &c., of Pittsburg, was passed January 6th 1864 (Pamph. L. 1131). Section 1 authorized the councils to lay out and open new streets, &c., to widen, straighten and extend those already laid out or opened, and to collect the value of property taken or damages done to property thereby, by assessment on property benefited by the improvement; before any street, &e., should be opened for public use the damages to be first ascertained and paid.</p> <p>Section 2 directed that when the councils desired to lay out, open, widen, &c., any street, &c., they should, by ordinance, fix the location, breadth and length of the same, and appoint three viewers to view the premises, appraise the damages and make the assessments.</p> <p>Section 3 directd that after notice the viewers should hear the allegations and evidence of the parties claiming damages, and having ascertained the whole amount of damages, they should assess the same on the properties to be benefited by the improvement, make a plot of the proposed improvement showing the location, size, &c., of each property damaged or benefited, with a statement of the amount of damages allowed and the assessment in each case. After notice and opportunity to each owner to see the plot and statement, the viewers should hear and consider all complaints and evidence and make any modifications, if necessary, and make report to the councils, accompanied .by their plot, stating the aggregate amount of damages, allowance to each claimant, describing property assessed, &c.</p> <p>Section 4 required the councils to hear appeals or further complaints against the report of the viewers, with power to send the report back for further action, or quash the proceedings; but when finally approved by the councils the approval should be conclusive, with the proviso that within ten days after such approval any person interested, and believing injustice had been done him, might petition the Quarter Sessions, setting out the facts, and upon notiqe of such petition, the clerks of councils should certify to the court all the papers and proceedings in the case, court might hear evidence, modify, correct and approve the report, quash the proceedings or appoint new viewers.</p> <p>On the 25th of May 1868, the councils ordained “that Forbes street from Boyd street to Seneca street be opened in accordance with the ‘ City District Plan,’ ” and they appointed viewers “ to award damages and assess the benefits arising therefrom.” The viewers reported to the councils that persons named were entitled to compensation for damages for the sums respectively mentioned in their report. Amongst the rest were</p> <p>Mrs. Seitz, one two-story brick house .... $ 2,200.00</p> <p>56 ft. by 230 ft. on Stevenson street, $90 per ft. . . 5,040.00</p> <p>$ 7,240.00</p> <p>Samuel Kier& Son, lot 65J ft. by 230 ft., at $90 . . $ 5,895.00</p> <p>Buildings.............. 10,800.00</p> <p>Removing machinery.......... 2,500.00</p> <p>$19,195.00</p> <p>John Aiken, one old brick house...... $ 900.00</p> <p>Lot 48 by 103 ft., at $50 . . -..... 2,400.00</p> <p>$ 3,300.00</p> <p>James McGinnis, 12 by 103 ft.......$ 600.00</p> <p>3 by 103 ft., east side Marion, at $50 . . . . 150.00</p> <p>$ 750.00</p> <p>The whole amount of damages assessed was $44,785.</p> <p>After exceptions to the report, the councils finally confirmed it and Seitz, Kier, Aiken and McGinnis petitioned the Court of Quarter Sessions to direct the clerks of the councils to certify the papers and proceedings to the court, and that the court would thereupon take such action as they might think right, &c.</p> <p>The court made the order prayed for, and on the 6th of November 1869, on motion of J. F. Slagle, Esq., solicitor “ for the city of Pittsburg, Thomas MacConnell, Esq., is appointed commissioner to take the testimony offered by the parties interested in the above case in relation to the matters at issue therein and report the same to this court, with his opinion thereon as to such modification of the report of the viewers as should be made, if any, and the form of an order to be made by the court, notice of the time of hearing to be given,” &c.</p> <p>The commissioner heard a very large amount of testimony, which he returned with his report. In addition to matters hereinbefore stated, he reported, as to Aiken’s case, that he had owned a large piece of ground, and in August 1858 conveyed a lot out of it to John A. Kercher, part of the description of the lot being “southwardly 120 feet to Forbes street, thence along Forbes street 41 feet 2 inches,” &c., and that this lot sold Kercher abutted on the land for which Aiken was claiming damages. The commissioner was of opinion that Aiken, in his deed to Kercher, having recognised Forbes street as one of the boundaries of lot, thereby dedicated his interest in Forbes street to the public, and was estopped from claiming damages for its opening. He was further of opinion, that if the vacation of Forbes street in 1860 had the effect of revesting the title, it passed to Aiken’s grantee, and not to Aiken. He therefore reported that he was not entitled to any damages. But in order that the court might be able to make a final decree on his report, in case he should be mistaken in this opinion, he assessed to Aiken damages to the amount of $4500, of which $500 were for this building. As to McGinnis’s claim, he reported that he had made conveyances of lots, recognising Forbes street as their boundary, and he was therefore entitled to no damages,* but for the same reason as in Aiken’s case, assessed his damages at $1050. As to the Seitz claim, he reported that the house which was included in the assessment of damages had been built before the “ City District Plan” had been made. He assessed the damages in this case at $10,090. As to the Kier claim, he reported that his land occupied by Forbes street had on it a large amount of improvements, consisting of valuable buildings and machinery, put on after the approval of the “ City District Plan.” He reported as his opinion that “ the date of the passage of the ordinance to open the street is the time when it was made certain that it would be opened; that until then the ground remained the property of the owner for all purposes,” and that Kier was entitled to be paid for his improvements.</p> <p>In this case he made an alternative assessment as follows:—</p> <p>“ On the basis of Mr. Kier being entitled to damages for the ground and buildings as they stood at the time the ordinance for the opening of Forbes street was passed, I assessed his damages as follows:—</p> <p>Lot sixty-five and one-half feet by two hundred and thirty feet ....... $9,170.00</p> <p>Pottery, &c. ........ 80,000.00</p> <p>In all . . . . $39,170.00</p> <p>“ If he is only entitled to damages for the ground and the buildings which were on the ground at the date of his purchase, I assess his damages as follows:—</p> <p>Lot sixty-five and one-half feet by two hundred and</p> <p>thirty feet ....... $9,170.00</p> <p>Buildings........ 6,500.00</p> <p>In all . . . . $15,670.00</p> <p>“ In case this last assessment is established, I think Mr. Kier ought not to be charged for any benefits, because I think the injury which the opening of the street will do to the buildings on the remaining ground will overbalance any benefit that the opening will be to the ground itself.</p> <p>“ I have made three different assessments of benefits, and report them in three different separate columns.” * * *</p> <p>The first of these assessments included damages to Aiken, McGinnis, Seitz, Kier, damages reported by the viewers and not appealed from, and the costs of the proceeding. The total-amount was $70.886.</p> <p>The second assessment omitted Aiken and McGinnis, and amounted to $65.336.</p> <p>The third assessment omitted Aiken, McGinnis and damages' for Kier’s improvements. The total amount was $41,836.</p> <p>In assessing benefits he increased the amounts reported by the viewers proportionably with the increase of the amount of damages ascertained by him, and accompanied his report with three schedules, showing the amounts assessed respectively on a very large number of persons,- amongst whom was William C. Miller. His several assessments were $2347.01, $2205.28, $1420.86.</p> <p>The second schedule assessing benefits was on the basis of the exclusion of damages to Aiken and McGinnis. Kier, Aiken, McGinnis, Seitz and Jane Magee filed exceptions with the commissioner to his report. He overruled all the exceptions, and returned his report as prepared, and the exceptions to the court.</p> <p>The City of Pittsburg, William 0. Miller, Jane Magee, Kier, McGinnis, Aiken and Seitz filed exceptions in court to the report.</p> <p>After hearing the exceptions the court delivered the following opinion:—</p> <p>“ The commissioner appointed in this case has furnished us with a very full and satisfactory report, in which he has presented, with great ability and clearness, the several questions raised by the testimony.</p> <p>“After a careful examination of the report and accompanying testimony, aided by the research and arguments of counsel, we have reached the same conclusion as did the commissioner.</p> <p>“ In doing so, however, we do not find it necessary to decide that the act providing for the location and survey of the ‘ city district’ is unconstitutional. As to that, we express no opinion. Under the testimony a large margin is afforded in estimating damages, particularly in the case of Samuel M. Kier; but we are of the opinion that the finding in that case of the commissioner is fully sustained by the weight of the evidence. In addition to the damages awarded by the commissioner to Mr. Kier, he claims a large sum of damages, resulting from the interruption of his pottery business.</p> <p>“ The Act of Assembly under which this proceeding is held, provides that a true and conscionable appraisement of the damages shall be made, taking into consideration in said appraisement the probable advantages and benefits, as well as disadvantages, which any owner or owners will be likely to sustain by reason of the proposed improvement. Speculative damages are not contemplated by the act. And we are of opinion that the finding of the commissioner embraced everything that is not of that character, and nothing more. The claim of Mr. Kier for damages, in addition to those found by the commissioner, is therefore disallowed. After the commissioner’s report was filed, and while exceptions thereto were under consideration by the court, one of the appellants, James McGinnis, to whom the commissioner awarded no damages, claimed the right to discontinue his appeal, and accept the damages awarded him by the viewers appointed by the city councils. We are all of the opinion that he had no such right. If we were to hold that a party can appeal from the award of the viewers appointed by councils, and take his chance of a more favorable award by the commissioner, or by other viewers appointed by court, and then discontinue his appeal as soon as he discovers the second award is less favorable to him than the first; it would encourage litigation, and lead to great uncertainty and confusion in adjusting claims for damages arising from the opening of streets.</p> <p>“We hold, therefore, that when a party appeals from the action of councils, and pursues his appeal in court until his claim has been passed upon by a commissioner, or by other viewers appointed by court, he cannot discontinue his appeal at pleasure. Our practice in civil cases forbids the discontinuance of a cause, or the taking of a nonsuit, after the verdict of a jury has been announced. We think a similar rule should be applied in cases like the present.</p> <p>“ The form of decree recommended by the commissioner is approved, and decree made accordingly.”</p> <p>The decree, January 31st 1871, was—</p> <p>“ 1. John Aiken, one of the appellants, has not sustained and will not sustain any damages by the reason of the opening of Forbes street, which he is entitled to have paid him, and therefore his claim for damages is hereby dismissed, and the report of viewers is hereby modified accordingly.</p> <p>“ 2. That James McGinnis, one of the appellants, has not sustained and will not sustain any damages by reason of the opening of Forbes street, which he is entitled to have paid to him, and therefore his claim for damages is hereby dismissed, and the report of the viewers is hereby modified accordingly.</p> <p>“ 3. That Louisa Seitz, Daniel Seitz aud George Seitz, joint appellants, have sustained or will sustain damages jointly, by reason of the opening of Forbes street, to the amount of $10,090.</p> <p>“ 4. That Samuel M. Kier, one of the appellants, has sustained or will sustain damages-to the amount of $39,170.</p> <p>“5. That the costs of this proceeding, $1776, be paid out of the benefits assessed in this case.</p> <p>“ 6. That the assessment of benefits made and reported by the commissioner, contained in the second column attached to his report, amounting to $65,336, be adopted and confirmed as the true and proper assessment of benefits in this case, and the report of the viewers is hereby modified accordingly.</p> <p>“ 7. That the report of the viewers, so far as the same is not altered, modified or changed by the foregoing parts of this decree, is confirmed.”</p> <p>Aiken and William 0. Miller removed the proceedings to the Supreme Court by certiorari, and assigned the decree of the Court of Quarter Sessions, for error.</p>

<p>• 1. Under an Act of Assembly, commissioners marked high and low water lines on the Allegheny, at Pittsburg. Zug erected buildings and cast cinders, &c., into the river between these lines. On an indictment at common law against Zug, the jury by special verdict found that the buildings, cinders, &c., did ‘‘ not interfere with the navigation of the river at any stage of water.” Held, that he was not guilty of nuisance.</p> <p>2. Between high and low water the owner of the soil may use the river for his private purposes if he do not interfere with the rights of the public.</p> <p>3. Wainwright v. McCullough, 13 P. F. Smith 66, distinguished.</p>

<p>Under 19th section of Act of January 6th 1864, relating to municipal Hens in Pittsburg, a judicial sale, if there be enough realized to pay such liens, divests them, and they are to be paid from the proceeds in preference to prior liens.</p> <p>2. The findings of an auditor are to be set aside only for clear errors of fact or law.</p> <p>3. The Act of January 6th 1864, section 19, construed.</p> <p>4. Allegheny City’s Appeal, 5 Wright 60; City of Pittsburg’s Appeal, 4 Wright 455 ; considered and distinguished.</p>

<p>1. No words in a will are to be rejected if any meaning can be assigned to them; they must be so construed as to carry out the testator’s intention, if it can be done consistently with the rules of law; if not, those rules override the intention.</p> <p>2. A devise was “ to my two nephews, to John * * *, the one-half part of the above-mentioned farm to be taken off the east end; the other half to Jacob * * *, share and share alike to hold to themselves and their heirs, the survivors or survivor of them for ever.” Held, 1. The words “ survivors or survivor of them for ever,” did not apply to “ heirs2. A survivorship between John and Jacob would be a devise over after a fee, and therefore could not stand as a remainder nor as an executory devise, being contrary to the rule against perpetuities. 3. The devisees took in severalty in fee.</p> <p>3. Jacob at the time of the devise had no children or issue: if “heirs” could be construed “ children,” he took an estate tail: — which would be destroyed by a deed, made by Jacob, to bar the tail.</p> <p>4. Oote v. Von Bonnhorst, 5 Wright 243 ; Taylor a. Taylor, 13 P. F. Smith 488, following Wild’s Case, 6 Reports 17, recognised.</p>

<p>Certiorari to the District Court of Allegheny county: No. 79, to October a'nd November Term 1871.</p> <p>Ou the 22d of Jainuary 1870, Barbara Gorbach brought an action of debt against The Knickerbocker Life Insurance Company of New York, on two policies of insurance for $10,000 each, issued by the defendants on the life of Conrad Gorbach, the husband of the plaintiff, for her benefit. Gorbach died on the 8th of August 1869, and this action was to recover the sums insured on his life.</p> <p>The declaration contained two counts; each alleged that “ They, the said defendants, did then and there and thereby assure the life of Conrad Gorbach, of Allegheny City, in the state of Pennsylvania, to the amount of $10,000, for the use and benefit of the said Barbara Gorbach, his wife,” &c.</p> <p>On the 26th of April 1870, the defendants petitioned the court, setting out that the plaintiff was a “ resident and citizen of Pennsylvania,” and that the defendants were “ a corporation duly created such by and under the laws of the state of New York and a citizen of the state of New York, within the intent and meaning of the constitution and laws of the United States,” &c.; the petition alleged other facts required by the Acts of Congress relating to the removal of cases from the state courts to the United States courts ; and prayed, that “ no further proceedings be had or taken in this honorable court in said suit, but that the same be removed into the said the Circuit Court of the United States for the western district of Pennsylvania, in pursuance of the said Acts of Congress in such case made and provided.”</p> <p>A rule was granted to show cause why the prayer of the defendants’ petition should not be granted.</p> <p>The plaintiff, by her answer, denied that she was at the commencement of suit, or then, “ a citizen of the United States or of the state of Pennsylvania; but respondent was then, and still is, a subject of the Emperor of Austria — this respondent having immigrated to the United States after she was over the age of twenty-one years of age; and respondent never was naturalized or declared her intention to become a citizen of the United States.” The court on the 6th of September 1870, discharged the rule.</p> <p>The defendants removed the proceedings to the Supreme Court by certiorari and assigned for error:</p> <p>1. The discharging the rule.</p> <p>2. Refusing to order that no further proceedings be had in the District Court, and that the cause be removed into the Circuit Court of the United States.</p>

<p>Appeal from the decree of the Orphans’ Court of Allegheny county: No. 69, of October and November Term 1871.</p> <p>On the 5th of February 1870, Hugh Whiteside and Mary Jane his wife, John T. Shane and Anna his wife, J. B. Flack and Nancy P. his wife, presented their petition to the Orphans’ Court of Allegheny county, representing:—</p> <p>1 and 2. That Samuel Paisley died in 1850, leaving a widow, Ellen E. Paisley, and five children, three, the above-named female petitioners, by a first marriage, and two, Samuel T. and Ella, children of his surviving widow, and that he died seised of real estate in Pittsburg.</p> <p>3. That by his will, dated July 22d 1850, he gave the income of his estate to his widow during life for her support and the support and education of his children, under the direction of his executors.</p> <p>4. That the executors having died, letters of administration d. h. n. c. t. a. were granted to Alexander Hilands.</p> <p>5. That since the testator’s death his widow had collected the income of the estate, and continued to collect it.</p> <p>6. That they believed the income was not less than $4000.</p> <p>7. That the widow refused to apply any portion of the income to the support of the female petitioners, but was applying it to her own support, and the support of her own children, Samuel T. and Ella Paisley.</p> <p>8. That Samuel T. was above twenty-one years of age and Ella above twenty years.</p> <p>The petitioners prayed:—</p> <p>1. That a citation issue to the said Ellen Everretta Paisley, Alexander Hilands, Samuel T. Paisley and Ella Paisley, and to such guardian ad litem of said Ella Paisley as the court may appoint, commanding them to be and appear before this court on a day certain to answer this bill.</p> <p>2. That the court by its order and decree fix the proportions of the rents and profits of and from the property of the said Samuel Paisley, deceased, to which the said Mary Jane Woodside, Anna Shane and Nancy P. Flack are severally entitled, and secure the payment thereof to them.</p> <p>3. For further relief.</p> <p>The will, which was annexed to the petition, is as follows:—</p> <p>“ I, Samuel Paisley, do make this my last will and testament. I give and bequeath to my wife, Ellen Everretta, the rents and profits of all my property during her natural life, for her support and the support and education of my children, under the direction of my executors: Provided, however, my brother John shall receive $200, and my house which he now occupies for five years at $60 per yearly rent. I hereby authorize my executors to sell my property in the bottom north of Penn street, to improve my property on Penn street. I hereby appoint Alexander Laughlin and James Marshall, my executors, to carry this my last will into effect. July 22d 1850.”</p> <p>The widow, for herself and as guardian ad litem for Ella, answered, admitting the 1st, 2d, 3d, 4th, 5th, and 8th paragraphs of the petition, and referred to an exhibit containing what she alleged to be a statement of the gross and net income of the estate of the decedent which had come into her hands since his death.</p> <p>She averred that Mary Jane Woodside and Anna Shane had lived with her, and been supported from the income of the estate until their respective marriages, and that since then they had been comfortably supported by their husbands; that Nancy P. Flack had lived with her and been supported out of the income of the estate until the year 1859, when she left defendant, and instituted proceedings in equity to have set apart to her separate use a portion of the estate, and that she bad been unsuccessful in those proceedings; that she was married, and comfortably supported by her husband; that Samuel T. Paisley had comfortably supported himself for the last ten years, and had not, during that time, needed or received any of the income; that Ella was under age and unmarried, and had no estate or livelihood to support her, and that she had been educated according to the intent of her father’s will, and continued to be supported under the same, and that all the income of the estate, after the payment of taxes, &c., was not more than sufficient for the support of the defendant and her daughter.</p> <p>“ That the mode and manner of expenditure of the income of said estate, as above set forth, met the approval of Alexander Laughlin and James Marshall, the executors of the will of Samuel Paisley aforesaid, and the said expenditure was known to and approved by them.”</p> <p>She denied that the petitioners were entitled to any relief.</p> <p>The exhibit showed that the gross income of the estate had been $920 in the year 1851, and had increased yearly until 1869, when it was $3457.50; that the net income was $650 in 1851, and in 1869 was $2857.50.</p> <p>Samuel T. Paisley answered, admitting the facts as to himself, as stated in the widow’s answer, and averred that he “ believes that he is not legally entitled to any portion of the same during the life of his mother. That the income of said estate is not more than sufficient to support the widow of-said decedent; that instead of being supported out of said estate, as alleged in the petition, he has repeatedly loaned the estate money to meet existing demands, when there was no money on hand to pay and satisfy the same. That this respondent declines to interfere or take part in these proceedings, and prays that the petition be dismissed at the cost of petitioners.”</p> <p>A replication was filed, and John H. Bailey, Esq., was appointed auditor, to take testimony and report the facts to the court.</p> <p>He found the facts, and reported: * * *</p> <p>“ Without attempting to pass upon the conditions of decedent’s will, but assuming for the purpose of this reference that the income of the estate is material as between these parties, I report that the relation the widow bears to this estate would require her to account for the rents and profits derived from this property.” * * *</p> <p>“ I find and report to the court, that the gross rents derivable from the estate of Samuel Paisley, deceased, at the present time, amount to the sum of $3531.”</p> <p>Exceptions were filed to the auditor’s report: they were overruled, and the report confirmed.</p> <p>The court decreed that Ellen E. Paisley should pay the daughters the sums set out in the decree, for the respective years since 1865,</p> <p>“ Being, each of said sums, the one-fifth of two-thirds of the net rents, &c., as shown by her answer filed, for all of said years prior to 1870, and as to 1870, tbe same proportion of the amount found by the auditor, after deducting $431.53 for the taxes of that year, which she is to pay, if not already paid; but said sum to each for 1870, is to be subject to deduction for a like proportion of any further payments made by her for necessary repairs, or other proper charges or assessments which are chargeable upon the rents for that year, if any such have been made by her.” * * *</p> <p>“That hereafter, the leasing and management of all the real estate of the said Samuel Paisley, deceased, be committed exclusively, during the life of said Ellen Everretta Paisley, and until the further order of this court, to Alexander Hilands, Esq., the administrator, with the will annexed, de bonis non, and his successor in said office, who is to pay to the said Ellen Everretta one-third of the net rents and profits thereof, for her share thereof, and to each of the five children of said deceased, one-fifth of two-thirds of said net rents and profits, as they accrue, upon request of them severally made; and that the said Ellen Everretta Paisley and every of the parties other than said administrator, be enjoined from making any future leases of said property, collecting any of its rents, or otherwise in any way intermeddling therewith, except, and then only, as thereunto expressly authorized by said administrator.”</p> <p>Ellen E. Paisley appealed to the Supreme Court, and there assigned for error, that the court erred:—</p> <p>1. In entertaining the petition, in requiring an appearance and answer, and in making a decree, because, the parties being devisees and 'not legatees, the Orphans’ Court had no jurisdiction.</p> <p>2. In taking from Mrs. Paisley the management, control and income of the property, the corpus of which passed to her for life by the devise of the rents and profits.</p> <p>3. In ordering Mrs. Paisley to pay to the petitioners the several sums of money mentioned in the decree, because, if entitled at all, they were not entitled to the sums ordered to be paid', and having been supported and educated until they married, they had no further claim upon the rents and profits devised to the wiodw.</p>

59, to October and November Term 1870. This was an action of covenant commenced, November 5th 1870, by The Superior Iron Company against… Held: issued a printed circular offering for sale all its property. ?,i “ In answer to this circular deponent became a bidder for said property, and his bid was duly and formally accepted by said company, plaintiffs, and a sale to him of said property by them duly ratified at a stockholders’ meeting, and thereupon the deed before referred…

8, to October and November Term 1871. This was an action of ejectment by Anna Jackson and others, heirs of Thomas Jackson, deceased, against Charles Johnston and James Johnston, for 130 acres of land… Held: * * * have the defendants made out a defence by contract of August 17th 1854, under Charles Johnston? “ This paper is no evidence to establish a contract. It amounts to nothing unless it was satisfied, or money paid and accepted by Thomas Jackson.

<p>Appeal from the decree of the Orphans’ Court of Jefferson county: No. 184, to October and November Term 1870. In the distribution of the estate of Samuel Burns, deceased.</p> <p>Samuel Burns and William Burns were partners in lumbering, and owned several tracts of real estate which had been purchased with partnership funds and for partnership purposes, but had been conveyed to them jointly. Samuel died on the 29th of October 1866. William continued the business under the firm name until November 29th 1867, when he was declared a bankrupt as surviving partner of the firm, and Joseph B. Jones was appointed his assignee in bankruptcy. The administrator, &c., of Samuel was ordered to sell the interest of Samuel for the payment of his debts. The sale under this order produced the fund for distribution.</p> <p>The auditor, John McMurray, Esq., found as is above stated ; he also found that Samuel Burns had no individual debts; that the petition for the order of sale exhibited debts of the firm and also one debt of William Burns, and that the interest of William Burns in the property had been sold under an execution against him for his individual debt.</p> <p>The auditor reported that the fund should be paid to the assignee in bankruptcy as being the proceeds of the estate of the firm of S. & W. Burns. He, however, reported an alternative schedule, distributing the fund amongst the individual creditors of Samuel Burns.</p> <p>The Orphans’ Court, after exceptions, confirmed the alternative schedule of distribution. Jones, the assignee in bankruptcy, appealed to the Supreme Court and assigned the decree of distribution for error.</p>

58, to October and November Term 1871. The writ in this action was issued March 26th 1868, by Jonathan J. Harris against Samuel Harris.

81, to October and November Term 1871. This was an ejectment commenced, 20th of April 1866, by Elizabeth Nogle against Robert Yance, for a tract of 100 acres of land. John Nogle being the owner of the premises in dispute, on the 11th of July 1864 entered into an agreement in writing and under seal with his daughter Caroline Vance, who was the wife of Robert Yance, by which he sold the premises to Mrs. Yance.

119, to October and November Term 1871. The action in this case was commenced January 23d 1869, before a justice of the peace, by Samuel Stall against James Meek, to recover the proceeds of a note which the plaintiff had left with the defendant for collection, with instructions, as he alleged, to pay the proceeds to one D. W. Braden, to whom the plaintiff was indebted, and the balance, with the proceeds of other accounts also left with Meek for collection, to Stall’s wife.

<p>1. A suit was by West, administrator, to use, &c.; a son of West had no interest in the claim to destroy his competency as a witness for plaintiff.</p> <p>2. Under Act of April 1st 1869, all witnesses are primá facie competent as regards interest and policy.</p> <p>3. Since the Act of 1869, the court should discountenance all objections to witnesses on the score of interest and policy, unless made clearly to appear.</p> <p>4. The settlement of an account and striking a balance is a clear admission of a precise indebtedness, in answer to the Statute of Limitations.</p> <p>5. The balance of a settled account in which interest is included, carries interest on the whole from the settlement.</p> <p>6. The balance of a stated account is principal; it cannot be re-examined to ascertain the items or their character.</p> <p>7. Johns v. Lantz, 13 P. P. Smith 324, approved; McClelland v. West, 9 P. P. Smith 487, Weaver v. Weaver, 4 P. P. Smith 152, distinguished.</p>

1, to October and November Term 1871. This action, commenced September 20th 1869, was brought by A. TI. Steele, cashier of the Tionesta Banlc, against the Empire Transportation Company, to recover the amount of money advanced by the plaintiff to A. J. Thompson, as security for which Thompson endorsed to the plaintiff four bills of lading of oil from the defendants to Thompson, numbered respectively 1425, 1426, 1589 and 1673.

<p>Error to the Court of Common Pleas of Forest county: No. 36, to October and November Term 1871.</p> <p>This was an action of covenant, brought February 20th 1869, by Solomon Zents, to the use of J. G-. Dale, against John B. Legnard.</p> <p>The declaration alleged that by articles of agreement dated April 15th 1867, between Legnard and Zents, it was agreed that Legnard should, within 14 days, convey to Zents two-sixteenths of the working interest of well No. 2, &c., for which Zents agreed to pay $500 at the execution of the agreement (which was paid), and $300 in 14 days from its date, when Legnard was to convey the interest mentioned, “including tools, cable and all the fixtures, excepting the engine,” &c. The declaration averred that although Zents had always been ready to perform all things contained in the agreement by him to be performed, yet Legnard had not conveyed to him the interest mentioned in the agreement, but had re-. fused and continued to refuse, &c.</p> <p>The defendant pleaded “covenants performed.”</p> <p>The case was tried, September 30th 1870, before Campbell, P. J.</p> <p>Dale, the use-plaintiff, testified that after the articles had been assigned to him, he handed $300, the last payment, to Legnard, who received it, but said he would not make a deed, as stated in the contract, because it had not been drawn “according to his talk with Zents.” Legnard handed the money back to Dale, who said it would be ready to pay when Legnard made the deed.</p> <p>Plaintiff gave evidence that Legnard said, Zents had “ not come up to time,” and he was going to keep the money paid and the well too.</p> <p>The defendant testified that he had sold the interest to Zents ; Dale paid him the balance due. On looking over the article, he found Zents was to pay only for the engine; but the agreement had been that Zents was to pay his share of all the machinery. Legnard returned the money to Dale, and they agreed to leave determining the matter till Zents came back. Before Zents came back, Legnard wanted the money, and asked Dale for it, but he said he had used it, and would not give it to him.</p> <p>The defendant gave evidence of the tender of a deed to Dale, who refused to accept it, because it was not in accordance with the articles.</p> <p>The plaintiff asked the court to charge:</p> <p>1. That if they believe from the evidence that the defendant covenanted to sell to S. Zents, his heirs and assigns, any portion of the interest described in the article of agreement upon which suit in this case was instituted, and that J. G. Dale is the assignee of the plaintiff, and that performance or tender of performance was made by S. Zents, or his assignee, the plaintiff'here, and performance was refused by the defendant, the plaintiff is entitled to recover.</p> <p>2. That the measure of damages, in the event of a recovery by the plaintiff, is the value of the interest at the time of the plaintiff’s tender of performance, and the defendant’s refusal to convey under his article of agreement.</p> <p>The court charged: “ This is an action of covenant, and [the plaintiff must not only aver but'show performance on his part. The plaintiff’s narr. avers the payment of the $500 hand-money, and also general performance on his part, but does not aver that the $300 was tendered. But he does give evidence that this $300 was tendered, and accepted, and returned to the plaintiff, on the allegation that the contract has a clause about fixtures, not agreed upon by the parties; and if the evidence is believed it was agreed to refer the matter to S. Zents, and if he said the bargain was as the article showed, he, the defendant, would have to perform ; but that $300 was returned to Dale to await the return of Zents, and it has never been made since, nor has it been kept up, and the money brought into court. Under this state of facts we instruct you that the plaintiff cannot recover.] By allowing the $300 to be defalked from plaintiff’s damage, so as to enable him to recover, he must both aver and prove performance or willingness to perform, or that he was prevented by the act or agreement of defendant. This answers the plaintiff’s first point in the negative.</p> <p>“ We also refuse to answer the 2d point as requested. The plaintiff seeking damage for breach of the covenants by defendant, and alleging performance by himself, can recover only such damages as he has shown, and not the whole value of the property.</p> <p>“Before the charge was delivered to the jury the plaintiff’s counsel offered to amend the narr. by averring an offer and readiness of the plaintiff to pay the defendant the $300, balance of purchase-money; but the court is of opinion that the evidence does not make out a tender, and that such amendment would not avail, and so instruct the jury,”</p> <p>The verdict was for the defendant, and a rule for a new trial granted. On the 29th of December 1870 the rule was discharged and the amendment to the declaration allowed.</p> <p>The plaintiff took out a writ of error, and assigned for error—</p> <p>1, 2. The answers to his points.</p> <p>3. The part of the charge in brackets.</p>

126, to October and November Term 1871. This was an action of debt on award brought, December 4th 1868, by Charles Mestrezatt and Dissiway South, administrators, &c., of Ruhama South, against William South.

<p>Error to tbe Court of Common Pleas of Fayette county: No. 129, to October and November Term 1873.</p> <p>This was an action of ejectment brought June 14th 1869, by Alexander Crow against Jesse Province, for a lot of ground in the town of New Geneva, “ being 30 feet of lot No. 160, according to the plot of said town adjoining lot No. 63, and bounded on the west by the Monongahela river.”</p> <p>By the paper-book of the plaintiff in error, it appeared that in 1797, the town of New Geneva was laid out by Albert Gallatin, who had a plot of the town duly recorded, with his certificate, giving the boundaries of many of the lots, and the courses of several of the streets. In the certificate he says: “ The lots from No. 48 to No. 53, aré each of them 2J perches in length along Ferry street, and extend back to the Monongahela river, being divided the one from the other by line running 34° W. * * * the course of Ferry street in front of lots No. 50, 51, 52 and 53 is N. 42° E. * * * the course of Ferry street from the corner of lot No. 58, is not precisely ascertained, and also that the lines of lots No. 158, 159 and 160, are not yet precisely ascertained.” In 1850, Province, the defendant, bought lot No. 53, and in 1865, Crow, the plaintiff, bought the adjoining lot No. 160. The premises in dispute are a piece of ground about triangular, on the south-west side of Ferry street, the defendant claiming that his north-east line extended to Ferry street, and the plaintiff claiming that the triangle, the base of which is on the Monongahela river, extending about 30 feet south-west from Ferry street, belonged to him.</p> <p>The recorded plan shows that No. 160 was enclosed by five lines, Ferry street being one and the river another, and that the triangle is on the other side of Ferry street, without a number; one of the lines of the triangle being Ferry street.</p> <p>The accompanying draft will sufficiently indicate the relative position of the disputed premises.</p> <p>The case was tried, February 1st 1871, before Gilmore, P. J.</p> <p>The plaintiff gave in evidence a deed dated April 5th 1802, from Albert Gallatin to John Hewitt, for lot No. 53, bounded by lot No. 52, Ferry street, lot No. 160, and Monongahela river — as by reference to plot will more fully appear, &c. Reserving the right of a ferry, through any lot; also deed dated June 10th 1830, from Albert Gallatin to Tazwell P. Martin, conveying amongst other real estate, lots No. 49, 50, 51, 52, 158, 159, 160, by the numbers without the streets or roads, and all the right of the party of the first part to keep a ferry, that he and wife had; also deed dated April 18th 1839, from Martin to Elias Bailey, for lots No. 158, 159 and 160, excepting a part sold to William James, which did not include any part of the land in dispute; also the will of Elias Baily, proved March 29th 1841, devising his lots to his four children, of whom Asher M. Baily was one; also deed dated January 29th 1866, from the other three children to Asher M. Baily; also deed dated February 24th 1870, from A. M. Baily to the plaintiff.</p> <p>The plaintiff gave other evidence, for the purpose of showing his title to the triangle.</p> <p>The defendant gave evidence showing that No. 53 had on the 22d of October 1832, been conveyed to R. P. Lott, w7ho built on the triangle a shop which “stood out to the road.” The defendant went into possession in February 1850, under articles from Lott, for No. 53 and part of No. 52; the fence then ran along the Ferry road down to the river. Lott conveyed to defendant, by deed dated June 24th 1869</p> <p>A. M. Baily, the grantor of No. 160 to the plaintiff, had known the premises forty years, and testified that he and his predecessors had never claimed any land on the triangle side of the Ferry road. Lott had used the triangle, “ had a fence out near the road; it ran with, the road. * * * I told Crow when I sold to .him that I never claimed the triangle.”</p> <p> </p> <p>There was other evidence running back for more than forty years, that the owners of No. 160 had not claimed beyond the Ferry road until Crow purchased. There was evidence also, that the defendant and his predecessors had made improvements on the triangle with the knowledge of the owners of No. 160.</p> <p>The defence was that the Ferry road was the true line of No. 160, that the Statute of Limitations barred the plaintiff’s recovery, and that he and those under whom he claimed were estopped by having seen improvements made on the premises without making known that they claimed the land.</p> <p>The defendant’s points presented the defence as above stated.</p> <p>Under the charge of the court, the jury found “for the plaintiff except so much as is covered by defendant’s kitchen, as shown by a draft made by Martin Dickson, dated June 13th 1867, and herewith filed.”</p> <p>Judgment was entered on the verdict and the defendant took a writ of error.</p> <p>The assignments of error were, the answers of the court below to the defendant’s points, and that the court erred in entering judgment on the verdict as being too vague and uncertain. The opinion of the Supreme Court renders it unnecessary to state the specifications of error in detail.</p>

35, to October and November Term 1871. On the 1st of October 1867, James S. Sterrett brought an action of assumpsit against W. L. Cleveland and others, trading as Cleveland & Co. The action was in rescission of the contract hereafter given and to recover back $2000, the money paid by the plaintiff under it, upon the allegation that the defendants had refused to comply with their part of the contract, to wit: “ This agreement, made this 26th day of May 1866, between Cleveland…

<p>1. Rhodes constructed a private railroad to his own mines through an alley on the line of an incorporated railroad company with their consent; he was enjoined from using it and ordered to remove the rails, &c. He procured the incorporation of himself and six others as a railroad, coal and oil company with a capital of $100,000; they were authorized to buy any railroad partly or wholly completed, and damages were to be ascertained, &c., according to the General Railroad Law. 'The company was organized before any stock was 'taken, and Rhodes sold to them his railroad, mines, &c., for $100,000, payable in the stock of the company, which had no other assets than the property sold by Rhodes. The company relaid the road and operated it with locomotives, &c. Held, that Rhodes was the owner after the organization and his sale to them, as he had been before.</p> <p>2. The road sold by Rhodes having been built without authority of law, and being a nuisance, the act of incorporation did not authorize the company to purchase such road.</p> <p>3. The railroad after the purchase was still a private road, and not covered by the act of incorporation.</p> <p>4. The railroad was built from Rhodes’s mines to private ironworks. Held, that it did not come within the description of a partly built road.</p> <p>5. The provisions of the General Railroad Law as to damages did not apply to such road, and there was therefore no provision for ascertaining damages.</p>

<p>1. Pollock, a partner in a grocery, forwarding and commission firm, bougnt lumber on his own account, and gave a note signed in the firm name; the payees endorsed to Lewis, who received it without notice that it was not given in the business of the firm. Held, that Lewis could recover against the firm.</p> <p>2. Signing the note by Pollock in the firm name was a fraud on the firm ; had Lewis taken it with knowledge, it would have been a good defence for the firm.</p> <p>3. Ihmsen v. Negley, 1 Casey 297, recognised.</p>

<p>1. The assessors returned a valuation of property of defendant, who was notified of the day of appeal. He did not attend nor appeal; the county commissioners, under sect. 9 of Act May 15th 1841, raised the valuation. The supervisor of his township rated him on the basis of the county valuation.</p> <p>Held, in a suit for road tax he could not defend on the ground that the valuation had been improperly raised; his remedy was by appeal.</p> <p>2. Until altered by the commissioners, the increased rate was the proper basis for township rates.</p> <p>3. If aggrieved by the township rating, his remedy was by appeal to the Quarter Sessions, under the 30th section of Act of April 15th 1834.</p> <p>4. The remedy for illegal taxation under a general power to tax, is by appeal to the proper appellate tribunal; when no appeal is given, the courts cannot reverse the judgment of the tax oflicers.</p> <p>5. Clinton District’s Appeal, 6 P. F. Smith 315, recognised.</p>

185. This was an action of ejectment, brought April 14th 1866, by Worthington R. Johnson and Anna his wife, against Daniel Rogers, for an undivided half of two tracts of land, stated in the writ to contain respectively 400 and 428J acres. The case had been tried December 1868, a verdict rendered for the plaintiff and the judgment thereon reversed by the Supreme Court (17 P. E. Smith 43).

186, to October and November Term 1871. This was an action of assumpsit commenced, May 21st 1868, by Maria Tobin against David Morgan. On the 22d of June 1864, the school board of Spring Hill township met; the minutes show that all the directors were present. At that meeting they resolved to levy a tax of $9500 to pay bounty to fill the quota of the township under the late calls of the President of the United States for volunteers.

212. This was an action of ejectment for 50 acres of land, brought September 6th 1870, by Richard Hope, a lunatic, by his committee, against A. F. Everhart. The case was tried, May 22d 1871, before Trúnkey, P. J. It being admitted that the plaintiff had been the owner of the premises for a long time before May 8th 1863, the plaintiff rested.

<p>Error to the Court of Common Pleas of Crawford county: No. 62, to October and November Term 1871.</p> <p>This was an action of ejectment for 160 acres of land, brought by Nancy Bredin, late Lasher, against David Watters and others, heirs at law of John Watters, deceased. Both parties claimed under John Watters.</p> <p>The plaintiff gave in evidence the following deed :—</p> <p>“ Assignment maid this 6th day of May A D 1853' Know all min by these presents that I John Watters within named in consideration of one dollar to me in hand paid by Nancy Lasher of the Venango Township Crawford County and State of Pennsylvania The receipt whareof is hereby acknowledged have sold and assigned and by these preasents do sell and assign to the said Nancy Lasher the within named farm and all my right title and interest in and to the same. Authorizing her in my name or outherwise but at hur own expenses to cary awn and possess the same according to the tenor of herein witen</p> <p>“ Now the condition1 of this assignment is such that said John Watters is to have a good and suficient living out of the foresaid farm his natural lifetime and all outher nessery expenses and the residue to remain in the hands of the said Nancy Lasher or hur heirs that is to say if the above conditions are fully complyed with Then this assignment to remain in full force and virtue or outherwise to become null and void and of none afeet. In witness wereof I John Watters have set over all that certain peace or parsel of land bounded and described as follows, on the south by land of Thomas Daviee — and on the east by Martin Strayer and on the north by John Marchal and on the west by Andrew F. Watters in Fairfield Township Crawford County, &c., containing 160 acres, &c. * * *</p> <p>John Watters, [l. s.]”</p> <p>The plaintiff and her husband Lasher went on the farm in the fall of 1853, and remained there eighteen months.</p> <p>The defendants offered to prove that the plaintiff did not furnish Watters with a living; whilst on the farm did not cultivate it, nor furnish his living or necessary expenses in any other way; that she left the farm in the spring of 1855, and Watters entered for breach of the condition and that she had not furnished him any support up to his death in March 1869.</p> <p>The evidence was objected to by the plaintiff, rejected by the court (Lowrie, P. J.), and a bill of exceptions sealed.</p> <p>The verdict was for the plaintiff.</p> <p>The defendants removed the record to the Supreme Court and assigned the rejection of their offer for error.</p>

<p>Error to the Court of Common Pleas of Jefferson county: No. 32, to October and November Term 1871.</p> <p>This was an action of trespass d. b. a., commenced, December 29th 1868, by F. C. Esbaugh against Nathan Carrier, Jr., A. D. McPherson and A. J. Smathers.</p> <p>Smathers was plaintiff in an execution against Esbaugh; Carrier was the sheriff and McPherson his deputy, who executed the writ and sold the goods.</p> <p>A judgment had been entered to February Term 1867 in favor of Smathers against Esbaugh for $144.30. On this judgment a fi. fa. was issued to September Term 1868, under which the personal property of Esbaugh was levied on and sold by the sheriff; it produced $219.45, of which $156.54 were paid to Smathers in full of the debt and interest of his judgment.</p> <p>There was evidence that the sale had been made by the sheriff upon jive days’ notice. There was also evidence that Smathers had agreed with Esbaugh that no execution should issue on the judgment until the next spring, and that he had issued execution during Esbaugh’s absence.</p> <p>The following are points of the plaintiff with their answers :—</p> <p>“ 2. If the property was sold on five days’ notice instead of six, it would render the sheriff a trespasser ab initio, and the plaintiff would be entitled to recover the full value of the property sold, and in addition thereto (if the sale was attended with circumstances of oppression) exemplary damages for the oppression.”</p> <p>Answer: “This is affirmed.”</p> <p>“ 3. If A. J. Smathers had agreed for a sufficient consideration with the defendant not to issue execution on his judgment until spring, and for the purpose of oppression and wrong had fraudulently violated that agreement, the execution as to him would afford no protection, and the plaintiff would he entitled to recover, at least as to him, exemplary damages.”</p> <p>Answer: “We answer this point also in the affirmative. But if Smathers did not participate in selling on less than six days’ notice, on which there is little if any evidence, then he is not liable for the trespass of the sheriff, and your verdict for a fraudulent issue of the writ should be against him alone, and you cannot render a verdict for two separate trespasses — the one committed by Smathers himself, the other by the sheriff and his deputy. But you may find as to the one, not guilty, and as to the other for the plaintiff for such damage as he has sustained by that particular trespass. If Smathers had a valid judgment against defendant, of which there is no doubt, and having an execution out on it and defendant paid a part, and it was agreed that there was to be a stay until the following spring, and Smathers, in the face of such agreement, issued on the judgment, he would be liable as a trespasser for sending the sheriff on him. But if the agreement was conditional, and before becoming absolute, more money was to be paid, or what was to be given to him and it was not done, he had a perfect right. In order to make Smathers a trespasser you ought to be satisfied that he issued in defiance of a positive agreement to stay. If the jury should find that Smathers is a trespasser, and this issue was under circumstances of oppression, you may allow exemplary damages as against the sheriff. If it was merely a mistake in not advertising long enough, you should find only such damages as the plaintiff has actually sustained.”</p> <p>The defendant’s 1st, 2d and 3d points and their answer are as follows:—</p> <p>“ 1. The judgment of A. J. Smathers against E. C. Esbaugh being a valid judgment, the execution issued therefrom gave the sheriff the right to levy on the property of Esbaugh and remove it out of his possession. And if he was not a trespasser at the time of the levy or at the time of the removal, the fact of his only giving five days’ notice of the time of sale would not make him a trespasser, and as there is no evidence of fraud, the verdict must be for the defendant.</p> <p>“ 2. If the plaintiff had not actual possession or the right to take possession at the time of the sale, he cannot maintain his present action.</p> <p>“ 3. There being no evidence in the case against A. J. Smathers other than that he had the writ issued, as to him the verdict must be for the defendant.”</p> <p>Answer: “We answer defendant’s first three points in the negative, and say that a fi. fa. gives no right to sell personal property until the sheriff or his deputy has advertised it six days agreeably to the Act of Assembly, and an officer selling, as was done in this case, if the evidence is believed, on less than six days becomes a trespasser ah initio. The advertising on the 12th of November to be sold on the 18th would be long enough, but if on the 14th the sheriff altered the time of sale and made it on the 19th, the notice of the time and place of sale would date from the 14th, and the advertisement would be only five days, and this would not save him from this action of trespass, and it would make the original taking a trespass.</p> <p>The court (Campbell, P. J.) further charged : * * *</p> <p>“ The defendants’ counsel on the trial of the cause requested us to instruct the jury that the money raised by the sale of plaintiff’s property and applied in satisfaction of the judgment against him should be referred to the jury in mitigation of damages. We refused to do this because the omission to advertise the property for the time prescribed by the Act of Assembly, made the sheriffs trespassers, proceeding as if they had not advertised at all, and the sale was a nullity, and they had no right to take the money and pay the plaintiffs judgment in favor of Smathers, any more than they could take his property and sell it without legal process, and therefore they cannot offer the judgment in mitigation of damages.”</p> <p>The verdict was for the plaintiff against Carrier and McPherson for $459.94, and as to Smathers “not guilty.”</p> <p>Carrier and McPherson removed the record to the Supreme Court by writ of error.</p> <p>They assigned five errors; three to answers to the plaintiff’s points, one to the answer to the defendant’s points, and one to the charge.</p>

<p>Error to the Court of Common Pleas of Erie county: No. 130, to October and November Term 1871.</p> <p>This was an action of covenant by John W. Scott against Abner Scott, executor, &c., of John Scott, deceased, with notice to Nancy Holliday and others, devisees and heirs of John Scott.</p> <p>The declaration set out that John Scott in his lifetime, on the 22d of November 1849, by indenture between him and the plaintiff, did grant, &c., certain real estate (described in the declaration), to the plaintiff in fee, “after the decease of the said John Scott.” The declaration further averred that John Scott did covenant, &c., with John W. Scott, that he would warrant and defend the premises granted, subject to the life estate of the grantor, against all persons whatever lawfully claiming, &c. The declaration averred performance by the plaintiff and that neither the grantor in his lifetime nor the executors since his death performed the grantor’s covenants, but that the grantor by his will devised the premises to his daughters. The declaration further averred that after the death of the grantor the plaintiff was in possession of the premises granted, and that the devisees of the grantor by judgment in an action of ejectment and execution thereon turned him out of possession, &c., and that the grantor did not keep his covenant in his lifetime nor had the defendant since his death.</p> <p>The case was tried, March 29th 1871, before Wetmore, P. J.</p> <p>The plaintiff gave in evidence the instrument containing the covenants declared on, viz.:—</p> <p>“ This Indenture made, &c., between John Scott, of, &c., of the first part, and John W. Scott, of, &c., of the second part, witnesseth, that the said party of the first part, as well for and in consideration of the sum of natural love and affection which he, the said John Scott, hath and beareth unto the said John W. Scott, as also that the said John W. Scott hath this day agreed to live with the said John Scott, and labor for and assist him in working the land hereinafter described, and to maintain Patience Scott, the wife of the said John Scott, if she survives him, during her natural life, &e., * * * has granted, &c., * * * and by these presents does grant, &c., unto the said John W. Scott, his heirs and assigns, all the following described pieces and parcels of land situated, &c., * * * “ excepting and reserving nevertheless, the entire use and possession of said several described pieces and parcels of land with the appurtenances unto the said John Scott and his assigns for and during the term of his natural life, and this conveyance in no way to take effect until after the decease of the said John Scott, the grantor. Together, &c., subject to the reservation of a life estate as aforesaid. To have and to hold the said described pieces of land, after the decease of said John Scott, * * * unto the said John W. Scott, his heirs and assigns, to and for the only proper use and behoof of the said John W. Scott (after the death of the said John Scott), his heirs and assigns for ever. And the said John Scott, his heirs, executors and administrators, do by these presents covenant, grant and agree to and with the said John W. Scott, his heirs and assigns, that he, the said John Scott, his heirs all and singular the hereditaments and premises herein above described and granted or mentioned and intended so to be with the appurtenances unto the said John W. Scott, his heirs and assigns, against him, the said John Scott, his heirs, and against all and every person or persons whomsoever lawfully claiming or to claim the same or any part thereof, subject to the life estate of the said John Scott aforesaid, shall and will warrant and for ever defend.”</p> <p>It was witnessed by Miron H. Hutchinson and George II. Cutler. By the will of John Scott, dated February 26th 1861, he revolted all wills, “and particularly a certain will and testament (in form as a deed), &c., witnessed by Miron Hutchinson and George H. Cutler. And I hereby give and assign as the reason of revoking and making void said will, that my son, John W. Scott, and his wife have failed to treat me with filial affection, and to comply with the conditions upon which I made said will. I give and bequeath, &c. * * * Subject to the above, I give and bequeath all my personal property and real estate of whatever name and nature and wheresoever situated to my daughters Nancy Holliday, Anna Sanford and Parney P. Turner, and my son Abner Scott, to be equally divided between them, to them and their heirs and assigns for ever.” * * *</p> <p>He appointed Abner Scott the executor of his will. Subsequently to November 22d 1849, John Scott made a deed of the premises to Abner Scott in trust for himself and the daughters of John Scott.</p> <p>The plaintiff went into possession with the grantor under the instrument of November 22d 1849. Upon the allegation that the plaintiff had not complied with his agreement to work the farm, &c., the grantor left the premises, brought an action of ejectment and under it recovered the possession, and whilst in possession made his will as above stated.</p> <p>' After his death the devisees in the will went into possession under it; the plaintiff brought an ejectment against them and recovered the possession (Perry v. Scott, 1 P. F. Smith 119). The devisees afterwards brought an ejectment against the plaintiff in which they recovered a judgment on the ground that the instrument of November 22d 1849, was a testamentary writing and revocable, and had been revoked by John Scott’s will (Turner v. Scott, 1 P. F. Smith 126). On this judgment an habere facias was issued and the devisees put into possession. This action was then brought on the covenant of warranty in the instrument of Novem-‘ her 22d 1849.</p> <p>The defendant’s 4th point was:—</p> <p>The will of John Scott being the mere expression of the desire of the testator, and of a later date than the instrument under which plaintiff claimed, cannot constitute such paramount title as to be the foundation of an action of covenant for breach of the warranty, and the quit-claim deed of a later date offered in evidence would not constitute such breach.</p> <p>The court answered: — “ In answer to the defendant’s 4th point we say, the will and deed made subsequently to the 22d day of November 1849, are a breach of the covenant contained in the instrument dated November 22d 1849.”</p> <p>The defendant’s 10th point, which was negatived, was:—</p> <p>“ The covenant of warranty only warranted the possession after the death of John Scott; there could be no breach of the covenant during his life.”</p> <p>There was much evidence in the case and several questions of law raised; — what is above given will sufficiently illustrate the decision of the Supreme Court.</p> <p>The verdict was for the plaintiff for $6146.50.</p> <p>The defendant took a writ of error and assigned for error (amongst others), the answers to his 4th and 10th points.</p>

<p>Error to the Court of Common Pleas of JErie county: No. 124, to October and November'Term 1871.</p> <p>On the 20th of June 1870, a foreign attachment in assumpsit was issued out of the Court of Common Pleas of Erie county, at the suit of the Albany City Insurance Company to the use of George P. Griffith against Charles Whitney and others, tradin g as C. & D. Whitney, Jr., & Co., bail to dissolve $1200.</p> <p>Under the writ the schooner “ Grace Whitney” was attached-, and Captain Lewis Elliott summoned as garnishee. Bail was entered, and the attachment dissolved. The declaration filed by the plaintiff was as follows :—</p> <p>“ Charles Whitney, &c., were attached by their goods and chattels, and summoned to answer the Albany City Insurance Company, now for use of George P. Griffith, in a plea of trespass on the casein assumpsit, and thereupon the said plaintiffs, by their attorney, J. C. Sturgeon, complains, for that heretofore, to wit, on the 24th day of June, A. D. 1870, divers goods of great value, had been and were shipped and loaded by defendants on board the schooner Monteagle, to be carried to Ogdensburg, in the state of New York, on and for freight in and during the said voyage. And the plaintiff- further saith, that afterwards, and during said voyage, to wit, on the great lakes, the said vessel, and the tackle and apparel thereof, by and through the mere force and violence of certain hurricanes of wind and stormy weather, and by the perils and dangers of the seas, became greatly strained, &c., whereby and because thereof, the said vessel was driven on rocks and shoals and wrecked, so as to make her utterly unable to proceed upon her said voyage. And that afterwards, &c., plaintiffs did come with a wrecking-tug, men, and all the necessary appliances for the removal of the cargo, tackle, furniture, anchors, cables, &c., from the wreck of the schooner Monteagle as aforesaid; and that at that time, and while plaintiffs being then and there prepared for the removal of the said cargo as aforesaid, the said defendants came and offered to receive the said cargo, and then and there agreed to pay plaintiffs such proportion of the expenses incurred by them as should be apportioned upon the said cargo, the said sum of expenses amounting to the sum of $1082.42, and' in consequence of which said several promises to pay, then and there, said proportion of the charges and expenses occasioned thereby, and by the salvage of the rigging, furniture, anchors, cables, &e., and of the cargo of the schooner Monteagle, wdiich should be apportioned on the cargo saved from the said vessel, the said defendants did then and there receive the said cargo amounting to 50,000 feet of black-walnut lumber, of great value, &c., and then and there did agree to pay the said share of the expenses apportioned on the said cargo as aforesaid, and in consequence thereof did then and there become liable to pay the said plaintiffs the sum of $900, being the amount assessed upon the said cargo by virtue of the agreement as aforesaid.</p> <p>“ And the said plaintiff further says that afterwards and whilst the said vessel Monteagle was proceeding on her said voyage, &c., loaded with black-walnut lumber, the property of defendants ; she was by the violence of the winds and waves driven on shoals and reefs and stranded, being damaged thereby so as to be incapable of further proceeding on her said voyage, and whilst the plaintiffs were engaged in unloading the said cargo, having tug, men, cables, and all the necessary appliances therefor, the defendants appeared and received the said cargo consisting, &c., and then and there agreed to pay to plaintiffs such proportion of the plaintiffs’ expenses in proceeding to the said wreck for the purposes aforesaid, as should be assessed upon the cargo so saved, by an adjustment of the said expenses between the vessel and cargo, amounting to the sum of $1082.42, and the said defendants then and there, according to their said undertaking, did become liable to pay, and then and there should have paid to plaintiffs a certain sum of money, to wit, &c., being their proportion of the salvage, adjustment, &c., as aforesaid; yet the said defendants afterwards, disregarding their promises so made, have not paid any part of the said moneys to plaintiffs,” &c.</p> <p>The defendants filed a plea in abatement, viz.:—</p> <p>“ The said defendants come, &c., and say that this court ought not to have or take further cognisance of the action aforesaid, because they say that the said supposed cause of action, and each and every of them, originated on the great lakes and within the maritime jurisdiction of the United States, and being a claim for salvage, and is exclusively the subject of investigation in a court of admiralty, and not in a state court, and this court has no jurisdiction on the subject-matter, and this the said defendants are ready to verify; whereupon they pray judgment whether this court can or will take further cognisance of the action aforesaid.”</p> <p>There was no demurrer or replication to this plea.</p> <p>After argument the court quashed the writ and all subsequent proceedings.</p> <p>The plaintiffs removed the record to the Supreme Court, and assigned the quashing of the writ, &c., for error.</p>

<p>1. In a suit in Wisconsin on a partnership note, one of the partners was not served, and judgment was recovered against the others. This did not discharge the partner not served in a suit against him in Pennsylvania.</p> <p>2. Primfi facie, the law of the forum is the same with the law of the place of the contract.</p> <p>3. Partners dissolved; Cadwell, one of them, received all the assets'and covenanted to pay all the debts and indemnify his fellows. In a suit on a note against the firm, one of whom Bennett, was not served, a judgment was recovered against the others, Cadwell being one of them. A judgment was recovered in Pennsylvania in a suit against Bennett for the same note for want of an affidavit of defence. This judgment was primfi facie evidence of Bennett’s right to maintain an action against Cadwell on his covenant.</p> <p>4. In the action against Cadwell the validity of the judgment could not be inquired into collaterally.</p> <p>5. Accepting a bond from one partner for a firm’s simple contract debt is a satisfaction of the firm’s indebtedness.</p> <p>6. The recovery of the judgment in Wisconsin extinguished the firm’s indebtedness as to the partners served.</p> <p>, 7. Act of April 6th 1830, (judgments against part of joint contractors), applied.</p> <p>8. Campbell' v. Steele, 1 Jones 394, recognised.</p>

179, to October and November Term 1871. In the distribution of the proceeds of the sheriff’s sale of the personal property of John P. Cook. The records of the Court of Common Pleas of Clarion county, and the endorsements on the writs of execution showed that judgments had been entered against John P. Cook and executions issued on them as follows:— John R. Kron, $298.98. Entered May 8th 1871.

<p>1. A scire facias Avas issued against four and returned “ nihil” as to three; the one served filed an affidavit of defence to the action as to all. An alias scire facias was issued against the three and returned “ nihil.” Judgment was taken against the three and was set aside. The defendant served, pleaded; the other three pleaded a separate plea; the plaintiff took a writ of error to setting aside the judgment. Held, that a writ of error would not lie.</p> <p>2. The action was an unit, and there should be final judgment before a writ of error would lie.</p>

<p>Appeal from the decree of the Court of Common Pleas of Venango county: In Equity: Of October and November Term 1871, No. 196.</p> <p>The bill in this case was filed by Esther Squires against P. T. Ridgway, and after setting out the title of certain oil and mineral interests in one William Cundy, averred:</p> <p>That on the 28th of August 1868, Cundy, by writing, assigned these interests to Ridgway; that the assignment was not intended to be absolute, but to be held in trust for the plaintiff, who a day or two before the 28th of August, by a parol agreement with Cundy, purchased these interests and money due to them, and agreed to pay $5000 for them; that by reason of her relationship -with Ridgway, his'professions of friendship and the confidence she reposed in him, she intrusted him to purchase the interests for her from Cundy; that Ridgway agreed to purchase as her agent and take an assignment of them in writing in such manner and form as would show that he held them in trust for her; that about the time of the purchase there were on hand oil and money belonging to the interests, amounting to about $4000 or $5000, which were in the hands of Ridgway and belonged to her by virtue of her purchase; this money, it was agreed, should be applied in payment-of the purchase-money, and in case of deficiency, Ridgway was to advance the balance and retain possession of the interests and receive the proceeds, until he should be reimbursed his advance with interest, and be paid for his time, trouble, &c., after which that Ridgway should convey the interests, &c., to her.</p> <p>The bill further averred that Ridgway fraudulently contrived to obtain from Cundy an assignment of the interests, &c., absolute on its face, Cundy intending to convey, and supposing that he had conveyed, the interests, &c., in trust for Mrs. Squires ; that on the said 28th- of August, after the conveyance from Cundy, Ridgway represented to her that he had purchased the interests for her as had been agreed upon and that she should receive the proceeds therefrom; that Ridgway had received from those interests, after the conveyance, money belonging to her amounting to above $20,000, beyond expenses, &c.; that he had refused to pay to her after demand, and pretended that he had purchased the interests absolutely for himself and not in trust for her ; that he had paid for them with his own money, and that he was not indebted to her, &c.</p> <p>The prayers were for an account and a decree for conveyance to her of the interests, &c., and for general relief.</p> <p>The defendant demurred to the bill:</p> <p>1. That the trust set forth in it was verbal, not manifested by • writing, and was void under the Act of April 22d 1856.</p> <p>2. That for the same reasons the contract was void under the Statute of Frauds.</p> <p>3. That there was no allegation of part performance so as to entitle plaintiffs to specific performance.</p> <p>The court (Trunkey, P. j.) allowed the demurrer and dismissed the bill.</p> <p>The plaintiff appealed to the Supreme Court, and assigned the decree dismissing the bill, for error</p>

<p>Error to the Court of Common Pleas of Fayette county: Of</p> <p>October and November Term 1871, No. 214.</p> <p>This was an action of ejectment for about 29 acres of land, brought March 22d 1866, by John Bruner against Jonathan D.</p> <p>Springer, Henry H. Beeson, and Jacob B. Miller. Jacob B. Miller disclaimed and his name was stricken from the record as a defendant. Henry H. Beeson having died, Jacob Beeson and others, his heirs at law were substituted.</p> <p>On the trial, September 14th 1871, before Gilmore, P. J., Jacob B. Miller having shown that Bruner’s title was in him, he was substituted as plaintiff, as mentioned below.</p> <p>The title had been in Zadock Springer, deceased, and the premises in dispute had been sold under proceedings in partition in the Orphans’ Court, by Jacob B. Miller, administrator, &c., of the decedent, to James Piper; the sale was confirmed December 33th 1847; the purchase-money was to be paid in three annual payments. The estate of Springer being indebted to Rachel Skiles, the seco.nd payment was assigned to her in discharge of her debt, and Piper gave his judgment-note to Mrs. Skiles for the amount. Piper executed a mortgage of the premises to The American Life Insurance Company. On the 18th of September 1854, after the execution and recording of the mortgage, Mrs. Skiles, by Miller, as her attorney, entered judgment for $448.69 against Piper on his note to her. Under this judgment the land was sold by the sheriff to Mrs. Skiles, Miller acting as her attorney, and the sheriff’s deed acknowledged July 1st 1857; on the 4th of July, by deed endorsed on the sheriff’s deed, Mrs. Skiles conveyed the premises to Miller. Proceedings were afterwards instituted on the Insurance Company’s mortgage and the land sold by the sheriff to Alfred Howell, Esq., on the 10th September 1857; — on the 12th of September 1857, Miller reconveyed to Mrs. Skiles: she on the same day conveyed to Ellis Baily. The sheriff’s deed to Howell was acknowledged September 15th 1857. Howell conveyed January 5th 1865, to Smith Fuller, who on the 7th of February conveyed tó John G-allagher, and on the 24th of January 1866 he conveyed to John Bruner. The foregoing was admitted and shown by the evidence by both parties.</p> <p>The defendants further gave in evidence the auditor’s report distributing the proceeds of sale under Mrs. Skiles’s judgment against Piper, by which the whole after-payment of costs, was appropriated to that judgment; — also deed March 7th 1862, Ellis Baily to Mrs. Skiles: she died May 8th 1865. They gave in evidence her will dated May 15th 1860, by which, after the devise of one lot, she ordered all the remainder of her estate, real and personal, to be sold, and gave a number of legacies to different persons, amongst the rest $1500 to Jacob B. Miller, and gave the residue equally to Henry H. Beeson, Jacob B. Miller, and Jonathan D. Springer; she appointed Miller and Springer, executors.</p> <p>The defendants gave evidence that after the premises had been sold to Mrs. Skiles by the sheriff, she had possession until her death; after her death Springer had been in possession of part and Miller of part; the premises had never been sold by the executors, they were appraised at $2610 for collateral tax as the estate of Mrs. Skiles, each of the residuary legatees, including Miller, received $4352; he also received his legacy of $1500.</p> <p>In the account of Miller and Springer, there is a credit of $1920 paid for collateral inheritance tax, the tax on the premises in dispute being a part.</p> <p>Smith Fuller testified that he bought the land for Miller and at his request; Miller paid the consideration and directed witness to convey to Gallagher, who paid witness no money; — Miller paid for the stamps and all expenses. He told witness that “ he wanted to buy this title, which was a cloud upon the title, so that he could get it cheap when it was offered for sale by the executors by driving off bidders.”</p> <p>Gallagher testified that he had not been present when Fuller made the deed to him; — he got the deed at the justice’s, he paid no consideration and never had any conversation with Fuller about it, he learned from Miller that the deed would be made to him (witness); he did not contract to sell to Bruner; never got any money from Bruner for it. Miller directed the title to be made to witness and then he “ obeyed his orders in conveying to Bruner ;” he never saw Bruner; Miller paid for the stamps.</p> <p>Bruner testified that he had been living in Louisville, Stark county, Ohio, for fourteen years; h'ad never been in Fayette county or seen the premises; never knew Gallagher; had never made any contract verbal or written about the premises; never paid any purchase-money for them; the deed had been made to him without his knowledge or consent; he knew nothing of the matter till the deed was delivered to him by mail in Louisville; he reconveyed the land to those who had conveyed it to him,' but could not recollect the names; he had no understanding about the sale or transfer; no consideration had been paid to him but the expenses of the transfer: no agreement had been had with him as to the land or as to the suit; nor had he been asked to allow his name to be used in the suit.</p> <p>A rule had been taken on the executors of Mrs. Skiles to show cause why they should not sell this land under her will. To this rule Miller, June 5th 1865, made answer under oath as one of the executors, — that the title was in Mrs. Skiles, she having bought it at sheriff’s sale when sold as the property of Piper; that’it had been sold to Howell under the Insurance Company’s mortgage, Howell’s title was afterwards vested in Bruner, who brought an ejectment for the land against the executors and devisees of Mrs. Skiles, in the Court of Common Pleas of Fayette county; the case being reached and plaintiff not. being ready for trial he was compelled to suffer a nonsuit; Bruner had since brought suit in the United States Court for the Western District of Pennsylvania; which suit would probably he tried at the next term of that court.</p> <p>“ Under these circumstances the respondent is of opinion that while the title to the property in question remains unsettled it cannot he sold except at a great sacrifice. The respondent therefore is of opinion that as the will of the said Rachel Skiles provides that the real estate of the deceased should be sold by her executors at such time as they- shall deem best for the interest of the said estate, the discretion there imposed upon them, requires not to sell the said real estate before the title to said real estate shall he settled.”</p> <p>They gave evidence showing that Miller had been attorney for Mrs. Sidles, in the transactions relating to this land. The plaintiff gave in evidence deed, July 20th 1867, from John Bruner .to himself for the premises in dispute, — and the court against the objection of defendants, allowed Miller’s name to be substituted as plaintiff.</p> <p>The plaintiff’s point which was refused was :—</p> <p>“ If the defendants were plaintiffs in this action, they could not recover without tendering to defendant the money which he paid Alfred Howell. Therefore, unless the amount of money, with interest, is paid or tendered to the plaintiff, he must recover.”</p> <p>The defendant’s 1st and 2d points which were affirmed were : —</p> <p>1. “ J. B. Miller being a legatee under the will of Rachel Skiles, and having received a specific legacy of fifteen hundred dollars, and his share of residue as far as distributed, he cannot now impeach it or set up a title to this land or in any way defeat the provisions of the will.”</p> <p>2. “ Having been appointed by Rachel Skiles one of the executors of her will, and having accepted, qualified and acted as such, he cannot dispute the provisions of said will nor set up any title to real estate claimed by her.”</p> <p>The court charged: “Jacob B. Miller the plaintiff, nowin this case, was a special legatee and co-residuary devisee and one of the executors of the will. He accepted the office of executor, received the special'legacy and has received large amounts on the residuary estate as the uncontradicted evidence shows. The whole evidence in the case shows that the property in dispute was claimed by Mrs. Skiles in her lifetime, that she died in possession, and that her executor has treated this as part of her estate devised in her will. [Now if you determine that the property was devised by the testator, and as one of the devisees Mr. Miller so understood and accepted the benefit of the will, he will be estopped to set up his title.]</p> <p>[“ If you believe that J. B. Miller was attorney and counsel for Mrs. Skiles in conducting the sale on her judgment v. Piper, and continued to act as her counsel afterwards, we charge you that any title which he acquired to the property from another source would enure to her benefit], and that when he proposed to purchase the title from Howell, it was his duty to offer the purchase in the first place to his client: if she declined, then it would have been competent for him to purchase.”</p> <p>The verdict was for the defendants.</p> <p>The plaintiff took out a writ of error, assigning for error the answers to the points and the portions of the charge in brackets.</p>

<p>1. The trustees of a laud company in 1808 conveyed to Ludwig, land which through various intermediate grantees came to Taylor in 1851, when all the deeds were recorded. In 1816, the trustees conveyed the same land to Baldwin, and through various grantees tbe title was re-invested in the company in 1844; these deeds were duly recorded. In 1854, the company by other trustees conveyed to Cullum. Held, that Cullum and his grantors had constructive notice of Taylor’s title.</p> <p>2. What was done by the company (who were the common grantors), at any time must be presumed to have been known by them at all times, and their intervening sale could not alter the effect of their acts to third parties.</p> <p>3. A party remitted to his title is bound by his acts affecting his title before the reconveyance.</p>

<p>1. Shortly before the Bounty Act of March 25th 1864, a meeting of citizens of a township at which the school directors were present, agreed that money should be borrowed for filling the township’s quota. It was “understood and agreed” with the directors, that if the law should be passed, they would levy a tax to pay the borrowed money. The money was borrowed. After the passage of the Act of 1864, the directors adopted a resolution to levy a tax to repay it, and a warrant was issued for its collection. In 1866, an act was passed legalizing all the acts of the directors and authorizing the collection of the tax, &e. This justified the levying and collecting the tax.</p> <p>2. The resolution of the directors was an official recognition of the money raised to fill the quota, needing only a legal sanction to make it binding on the citizens, which the Act of 1866 was.</p> <p>3. Tyson v. Halifax, I P. F. Smith 9, distinguished. Grim v. Weissenberg, 7 P. F. Smith 433, Weister v. Hade, 2 Id. 474, adopted.</p>

<p>Appeal from Nisi Prius, No. 260, July Term 1867.</p> <p>The appeal in this case was by David Shelmire, and Ann E. Shelmire his wife, administratrix, &c., of L. Rex Peters, deceased; the said David Shelmire being also guardian of the minor children of said deceased. In Equity.</p> <p>The bill in this case was filed in the District Court of Philadelphia by the appellants on the 6th of March 1866, against Jacob Peters, and after answer and replication, was removed into the Supreme Court under the Act of April 6th 1867 (Pamph. L. 838), on the 1st of June 1867.</p> <p>The bill set out:</p> <p>1, 2. That the decedent and defendant, in or about 1854, were partners in several omnibus lines in Philadelphia.</p> <p>4, 5. That the decedent died June 21st 1857, leaving a widow, the plaintiff, to whom administration of his estate was granted, and two minor children; that the partnership continued until the decedent’s death, when it was agreed between the defendant and the administratrix, that the defendant should continue to act as if the partnership continued, and no account was then made.</p> <p>6, 7. That under an act incorporating The Citizens’ Passenger Railway Company, that company in July 1858 purchased the omnibus lines running on their route for $44,000, of which $25,000 was paid by 1000 shares of the stock of the company, and the balance paid in cash.</p> <p>8, 9, 10. That under an act incorporating the Girard College Passenger Railway Company, that company purchased the omnibus lines of the parties running on their route for a large sum of money, the amount of which the plaintiff did not know ; and that after the sale the defendant had a large amount of the partnership property ; that the defendant kept the books of the partnership, received moneys paid to it, hired the omnibuses, &c., sold the horses or exchanged them at a profit, and had rendered no account, &c.</p> <p>11. That in the year 1860, the plaintiffs and defendant united in an amicable reference to Jacob P. Snyder and John Gay, for the settlement of their accounts, as a family settlement, and that defendant produced before the referees account-books and other writings, &c., conducive to an adjustment, and that after proceeding before the referees until May 27th 1861, they made a partial report, finding a balance of $22,088.37 due the firm, “subject, nevertheless, to the approval of David Shelmirea further reference to Jacob P. Snyder and W. W. Juvenal was then agreed upon; they proceeded in the performance of their duties, and in the month of November 1865, made a report showing a balance of $23,951.96, one-half of which they reported belonged to the estate of L. Rex Peters. (The accounts and reports were annexed to the bill.) The defendant then refused to submit further to the referees, and the reference “ wholly fell.”</p> <p>12. The defendant had lately claimed that under a sale under executions against L. Rex Peters, he bought his interest in the partnership, but the plaintiff averred that the purchase had been made with funds of the partnership, with the understanding that' the partnership should not be affected by it.</p> <p>The prayers were for an account; a transfer of the stock of the railway companies or account for it at its market value; for a declaration that a valuable part of the investments in the proceeds of the partnership property belong to the plaintiff, and to produce books, &c.</p> <p>The defendant answered June 2d 1866, that the partnership with his brother, the decedent, continued until November 2d 1855, when all the interest of the decedent was sold by the sheriff under sundry writs of fi. fa., and bought by the plaintiff for $110, and that the decedent thereafter ceased to have any interest in the partnership; that at the sheriff’s sale the firm property was not worth more than $12,000 or $15,000, and had been increased by the defendant’s own means so as to be worth, at the time of the sale to the railway companies, $44,000. He denied any agreement with Mrs. Shelmire that he should continue to act as if the partnership existed, and averred that long before the death of L. Rex Peters, the whole property belonged to himself; that on the death of his brother he assured his widow that he would not allow her to want, and had contributed “ to her support for" a considerable time, but not on the footing of a contract, and only out of good feeling towards the family of his deceased brother ;” that the accounts, &c., had always been open for inspection of the administratrix, and no account had ever been demanded. The Citizens’ Railway Company paid the defendant as set out in the bill, but it was for his own exclusive property; his brother’s estate had no interest in it. The Girard Railway Company paid the defendant nothing for omnibus property or for anything else. He admitted that he submitted the books for examination at various times to the persons named in the bill, but afterwards withdrew them; he averred that the statements and the exhibits are incorrect.</p> <p>Examiners had been appointed in the case who took a large amount of evidence.</p> <p>In the Supreme Court the case was referred to E. Coppee Mitchell, Esquire.</p> <p>The facts in the ease and the questions raised will sufficiently appear in the master’s report and the opinion of the Supreme Court.</p> <p>The master reported:—</p> <p>* * * “ On the first day of January 1852, Jacob Peters, the defendant, and Levi Rex Peters, his brother, were in partnership, owning and running several lines of omnibuses in the city and county of Philadelphia, each owning one-half of the partnership-property and being upon terms of exact equality as to the profits and losses. * * * This partnership continued up to November 2d 1855, at which time it is alleged by the defendant, a sheriff’s sale of the interest of Rex Peters took place under executions upon judgments against him individually, and it was bought by the defendant, who paid for it the sum of $110, and thereupon became sole owner of all the partnership-property. Rex Peters died June 21st 1857, leaving a widow and two minor children.</p> <p>* * * The plaintiffs deny that there was any sheriff’s sale sufficient to divest the title of Rex Peters, and say that the partnership continued without change up to the death of Rex Peters— and that after his death, the defendant agreed that he should continue to act as though the partnership continued, should in his own way manage the affairs of the omnibus lines, and exercise a very large discretion as to the time and manner of disposing of the partnership effects for the benefit of all the parties interested. The omnibus lines which had belonged to the partnership were sold by the defendant to the Citizens’ Passenger Railway Company, who paid him therefor the sum of $44,000 in cash or its equivalent, July 1st 1858. Two attempts have since been made to settle the matters in dispute by reference to friendly arbitration ; these references extended from 1860 to 1865, but both have failed. * * *</p> <p>“It was contended, on behalf of the defendant, that the plaintiffs’ claim is barred by lapse of time. * * * The partnership certainly was dissolved by the death of Rex Peters, which took place nearly nine years before suit was commenced, and this delay should be accounted for. Pending the reference, the defendant filed, by leave of court, a plea of the Statute of Limitation. It cannot, however, be said that the plaintiffs were sleeping upon their rights, and were guilty of laches. The delay is sufficiently explained by the fact set forth more fully hereafter, that the settlement of these partnership accounts was actually in progress before arbitrators of the parties’ own choosing — ’first, Mr. Gay and Mr. Snyder, and afterwards Mr. Juvenal and Mr. Snyder, almost continuously from 1860 to 1865. That the defendant joined in these references is averred in the bill and not denied in the answer, and is clearly proved in the printed evidence. Besides, the defendant admitted frequently, from 1857 to 1865, the right of Rex Peters’s representatives to an account, and promised to pay what was found to be due, when the account was made.</p> <p>“ The real question in the case is that of the alleged sheriff’s sale. On the first day of November 1855, it is admitted that the partnership was in existence. The burden lies upon the defendant to show affirmatively that there was a sale, sufficiently valid in all its requirements, to transfer his brother’s title in the partnership property to him. If he fails to do this, the right to an account cannot be denied. * * *</p> <p>“ The defendant’s allegation is that on the 2d of November 1855, all Rex Peters’s right, title and interest in said firm was sold by Samuel Allen, sheriff, under sundry executions against him, and bought by defendant for the sum of $110, which sum he paid to the sheriff out of his own proper moneys; and thereby all interest of Rex Peters in said firm ceased, and from that time he had no interest therein.”</p> <p>The master then recapitulates the evidence as to the sheriff’s sale.</p> <p>“ There is no doubt that there was a general reputation of a sale to Jacob Peters. Fourteen witnesses testified before the examiner, eleven of whom speak of the sale. Only one, William Hicks, says he was present — but he cannot say who was the purchaser. Three of the witnesses say that it was sold under a judgment of William Hicks, but no such judgment appears in evidence. Several of the witnesses seem to have derived their knowledge from the sheriff’s handbills of the sale, one of which has been put in evidence by the defendant. But in all this there is not a single line of direct evidence that Jacob Peters purchased his brother’s interest at sheriff’s sale except Jacob Peters’s own declarations. It is left to be inferred. In connection with this, there is evidence of declarations by Rex Peters, in his lifetime, which seem to make the main strength of the defence ; they are therefore to be carefully examined, and are set out at length. Four witnesses testify to conversation with him, as follows: Mr. Wood says: ‘After the sale, Rex Peters told me, at various times, he had no interest in the business. He told me that if he had so many thousand dollars — I don’t recollect what the amount was — he would go into the business with Jacob Peters again.’ Mr. Beamer says: ‘He (Rex) told me that he had nothing to do with the stage line, that he was out, and that Jacob was the proprietor.’ Mr. Carman says: ‘ He (Rex) made the remark that he would be like Phoenix, and also said that at that time he had nothing to do with the lines which were running. ' I have heard him mention repeatedly that he had no connection with the lines that were running.’ Mr. Miller says: ‘After the sheriff’s sale, I had reason to inquire partichlarly whether Rex had anything to do with the omnibus concern. He said he had nothing to do with it, and didn’t want to.’ It was also proved that about the time of the alleged sheriff’s sale, several of the omnibus-coaches, which had been lettered outside ‘L. R. and J. Peters,’ were repainted, and the lettering changed to ‘ J. Peters, Jr.’ * * * The defendant attempted -to prove that from the date of the alleged sale, Rex Peters ceased to exercise control as a partner in the business — but in this I think he has failed. * * * The evidence offered by the defendant on the question of the sheriff’s sale is entirely circumstantial, and it is remarkable that, even taking in the declarations of Rex Peters, which form so strong a link in the chain, there is not discoverable in the whole of it any direct, positive testimony to sustain the defendant’s allegation of a sheriff’s sale to him of his brother’s interest in the partnership property; still, it points strongly to that conclusion.</p> <p>“ To meet and rebut that conclusion, the following points were urged by the plaintiffs : There was no change in the books of the partnership at the time of the alleged sale, and afterwards. William Megonegal, the only clerk of the omnibus business, who had the charge of the books, says: ‘ The books were continued after the sale in the same manner as they were before.” * * * Rex Peters, after the alleged sale, started a couple of coaches, to run from the city to Laurel Hill and the Falls of Schuylkill, on his own account. These coaches were kept in the yard, and the horses were fed in the stables which had belonged to the partnership, and which the defendant says then belonged only to him.</p> <p>“ After the time of the alleged sale, it was the habit of the defendant to pay to Rex Peters 1 money to live on,’ and it was charged to his individual account, in the books of the omnibus business ; and after his death, these payments were continued to his widow. The evidence does not show the amount paid to him, but Mr. Jarvis C. Carman, who was employed in the business by defendant, in several positions of confidence, testifies: ‘ My orders were to pay her $20 a week, for Mr. Jacob Peters. I presume she received $20 a week, up to the time she married Mr. Shelmire.’ In passing, it is proper to advert to the fact, that the defendant, in his answer, explains that he did freely and generously contribute to the support of the widow, but avers that he did so ‘ not on the footing of a contract, and only out of good feeling towards the family of his deceased brother.’</p> <p>“ But the chief reliance of the plaintiffs is upon the admissions of the defendant, made verbally to several witnesses, and, more strongly still, by his conduct in referring his books to arbitrators, for a settlement of the partnership accounts, upon the basis of a continuing partnership, up to and including the time of the sale to the railway company. Admissions are shown to have been made by the defendant at various times, up to 1865, which consisted in expressions of intention and promises by him to pay the amount shown to be due by settlement of the books of the business. The evidence on the subject of these references to arbitration is important, and has been, therefore, critically examined. There were two references: The first to John Gay and Jacob P. Snyder, the time of the beginning of which does not appear in evidence, probably some time in 1860, and which ended in the finding of a conditional and qualified award, May 27th 1861. The second reference was to William W. Juvenal, Esq., and Mr. Jacob P. Snyder, which ended in an award, finding the sum of $11,975.98, as due the estate of L. R. Peters, by the defendant, which -award was signed by both arbitrators, but was afterwards repudiated by Mr. Snyder. This latter reference covered a period of time extending from 1862 to the latter part of 1865. It is not important at this stage of the cause to inquire what these awards were, or how these references failed to settle the matter — they are of value now only in showing the conduct of the defendant, as bearing on the question of the ownership of the property in dispute. Mr. Juvenal, who was examined at length, and who, besides being one of the arbitrators in the second reference, had, as mutual friend and counsel for both parties, advised the first reference, and was conversant with the whole matter, speaks clearly to this point. He says the defendant called upon him and gave assent to the first reference; and afterwards it was proposed that he and Mr. Snyder should examine the books and accounts, and report upon them — and both parties having acceded to this, the defendant sent the books and papers to his house; that the defendant always stated that he desired the accounts to be settled between them as partners continuing; and that he was willing to pay whatever a just settlement of the accounts would show was due. This evidence is substantiated by other testimony on the same subject, and is not contradicted by any evidence in the cause.</p> <p>“Now starting with an admitted partnership, and the burden of proving the divesting of Rex Peters’s title, and the vesting of it in defendant, lying upon the defendant, the question is, has he done so ?</p> <p>“ That there was a sale of some kind may be said to be proved; the time and place and the price paid are shown, but every one who can recollect the sale has forgotten who was the purchaser, and, as stated before, there is no direct evidence that defendant was the purchaser. But admitting that he was, still his case is not sufficiently made out. The question remains, was it a valid sale ? Did it divest the title of Rex Peters and vest it in the defendant? The defendant’s own evidence shows that the sale took place after the sheriff was out of office, in a private office in Commerce street, which seems to have been shared between the ex-sheriff and Alderman Mitchell; no return appears to have been made to the court of a sale, and the ex-deputy of the ex-sheriff seems yet to have writs of execution against L. R. Peters in his possession. Nothing was sold beyond the interest in the partnership property, and it would have been natural and decidedly more proper to have sold it on the premises, where purchasers might have seen the partnership stock, and known what they were bidding for. The price too was very small; only $110 for a half interest in a business that is shown to have been worth $20,000 a few years earlier, and $44,000 a few years later, and it does not appear that the firm were indebted. Mr. Hicks, under whose execution defendant claims that the sale was made, got his money not from the sheriff but from Mr. Heebner, to whom he transferred his judgment. There is also evidence that the bills of advertisement of this sheriff’s sale were taken down; one witness followed the poster and took them down; and it is in evidence that the defendant was at least privy and consenting, if not active in their being taken down. These facts lead to the suspicion that there was about this sale some radical defect, which rendered it invalid. It is not improbable that there was sufficient ground upon which Rex could have applied to have the sale set aside, or could have successfully contested its validity at the time, but all inducement to do so, and all necessity of doing so for his protection, was removed by the reiterated declarations of the defendant that he never meant to take advantage of that sale to claim the whole partnership property.</p> <p>“ I do not think the defendant has succeeded in showing such a valid sale by the sheriff to him as would transfer to him his brother’s title to his share of the partnership property. * * *”</p> <p>The master, amongst other things, recommended that the defendant be ordered to account. Exceptions were filed before him to his report. He disallowed the exceptions.</p> <p>The case was argued at Nisi Prius before Sharswood, J., who dismissed the bill pro formd.</p> <p>The plaintiffs appealed to the court in banc, and assigned for error the decree dismissing the bill.</p>

46, to January Term 1869. In equity: The bill was filed, January 19th 1869, by Jacob Steinruck and Elizabeth his wife against Edward Thiele and Sophia his wife. The bill was for the redemption of certain real estate, the legal title and possession of which were in the defendants, and for an account of the rents and profits; the plaintiffs alleging that the defendants held the premises in mortgage and not by absolute title.

The bill in this case was filed to January Term 1870, No. 16. It was by Emanuel Bast, Robert Taylor, and Robert M. Lindsay, against Charlemagne Tower and John B. Heyl, executors, &e., of Davis Pearson, deceased. The bill set out that the plaintiffs and Pearson had been partners under the name of Davis Pearson & Co., from January 1st 1865 to January 1st 1868 ; and that Pearson had received from Joseph 0.

The bill in this case was filed, April 18th 1870, by Ann W. Eby by her next friend, &c., against John P. Cowan.

75, to July Term 1870. This was an action of debt, to March Term 1868, of the District Court, brought by John W. Everman against John R. Savage and others, trading as. Savage, Martin & Co. The cause of action was a judgment by default in the Supreme Court of New Jersey, in a suit by the plaintiff against the defendants, for $810.47.

224. This was an action of assumpsit brought March 1st 1870, by Michael Bagnell, administrator, &c., of Nicholas Burford, deceased, against the St. Mary’s Beneficial Society of the city of Philadelphia; in which a case was stated as follows :— “ Michael Bagnell is the administrator of the estate of Nicholas Burford, who died from intemperance on the 11th day of October 1869, the immediate cause of his death being mania-á-potu.

198, to July Term 1870. This was an action of assumpsit brought May 12th 1869, by John V. Bouvier and M. C. Bouvier, trading as J. V. Bouvier & Co., against William F. Smith and Joshua Kames, trading as Smith & Kames, for money laid out and expended by the plaintiffs, brokers in New York, on the purchase and sale of stocks for the defendants.

177, to January Term 1871. The action in this case was debt, by Richard Norris against the City of Philadelphia, commenced December 8d 1869.

<p>1. Mrs. Ellis gave the residue of her estate to Yarnall in trust for the use of all her children living at her death and the issue of such as might be then dead in equal parts, &c., the income of the shares of her sons to be applied to their use during minority, and paid to them as they arrived at age. The trustee to hold the shares of the daughters and pay the income during their lives, free from the debts, &c., “ of any husband they may have or take,” after their death to pay the daughters’ shares according to their wills; in default of a will the trustee to grant, pay, &c., the daughters’ shares to “ such person or persons as would be entitled to the same in case they had survived their respective husbands and departed this life intestate seised thereof in fee.” The daughters having attained full age and being unmarried: jHeld, that they took an absolute estate in fee.</p> <p>2. The trust for their separate use fell, there being no coverture when the will took effect and none in contemplation.</p> <p>3. Form of words importing an active trust does not sustain it, if its purr pose should fail.</p> <p>4. Where the testator intends the estate to go to the whole body of per- I sons constituting in law the entire descent lineal, he means “ issue” or “ heirs of the body.”</p> <p>5. If-the testator intends the estate to go to the whole line of descent lineal and collateral, he means “ heirs.”</p> <p>6. Technical phrases in wills, as well as forms of expression in other cases, ' will not overturn the intent clearly ascertained to be different in a will under examination.</p> <p>7. The rule in Shelley’s Case is not a real exception to the rule that the intention of the testator must guide in interpreting a will; it sacrifices a particular to a general intent.</p> <p>8. The rule in Shelley’s Case does not interpret a will; it takes effect when the interpretation has been ascertained.</p> <p>9. “ Heirs,” “heirs of the body,” “Issue,” “children,” “sons,” and similar expressions are words of limitation or purchase according to the intent of the testator in each particular will.</p> <p>• 10. When an estate for life is given with a general power of appointment and on failure to appoint, to children or special heirs, the power will not enlarge the estate to a fee or fee tail, and the children or special heirs will take by purchase..</p> <p>11. A power to appoint will not cut down an estate of inheritance.</p> <p>12. When a remainder, on failure to appoint, is devised to the heirs of the life-tenant, the inheritance will pass to the life-tenant.</p>

<p>Appeal from the decree of the Court of Common Pleas of Philadelphia: No. 113, to January Term 1871.</p> <p>The trustees of the Howard Sunday School Building were incorporated April 9th 1849 (Pamph. L. 1850, 998), to take and hold “ real estate for the purpose of erecting thereon a suitable building or buildings for the use of the Howard Sunday School Association, and such other purposes as the said corporation may deem expedient in communicating moral and religious instruction ; also to take and hold, for the use of the said Sunday school association, any goods, &c.”</p> <p>The corporation purchased a lot of ground on Bainbridge (Shippen) street, Philadelphia, and erected on it a three-storied brick building. By Act of March 21st 1865 (Pamph. L. 473), this real estate was “ exempted from the payment of all taxes except state taxes.”</p> <p>By Act of March 30th 1866, sect. 2, Pamph. L. 355, 2 Br. Purd., 1369 pi. 82, “ no portion of the real estate of any religious, charitable or benevolent association or institution in Philadelphia) which may he used for business purposes, shall be exempt from municipal or state tax by reason of any Act of Assembly exempting the real estate or property of said association.”</p> <p>By Act of March 18th 1868, sect. 1, Pamph. L. 383, “ the real estate, &c., in Philadelphia, owned by the Howard Sunday School Association, be and the same is hereby exempted from all taxation so long as the same may be used for charitable or religious purposes, except state taxes.”</p> <p>In 1870, this property was assessed for taxation for the years 1868, 1869 and 1870 at a valuation of $8000. At that time the second and third stories were, and had been occupied by the controllers of public schools for school purposes, under alease for five years, commencing January 1st 1866, at a rent of $500 per annum.</p> <p>“ The first story of the building, comprising a large audience-room, with ante-rooms and other smaller rooms adjoining, wras and is occupied exclusively by the association for the purposes of a Sunday school and religious meetings.”</p> <p>The association appealed to the Board of Revision, on the ground that the property was exempt under the Act of March 18th 1868. On the 20th June 1870, the board altered the valua.tion as follows :—</p> <p>Part of said premises, used for charitable and religious purposes, exempt, valued at - $40GO</p> <p>Part of said premises, rented for public school purposes, taxable, - - - - - - - 4000</p> <p>on the ground that the “ portion so rented is equivalent to one-half of the taxable value of the premises, and that the part so rented is not used for religious or charitable purposes,” leaving the taxable value at $4000.</p> <p>The association appealed from the decision of the board to the Court of Common Pleas, where the appeal was dismissed October 1st 1870.</p> <p>The association then appealed to the Supreme Court and assigned the dismissal of their appeal for error.</p>

<p>1. Executors of a decedent whose domicil was in Cuba have no authority under letters testamentary in Cuba to transfer stock in Pennsylvania.</p> <p>2. The purpose of the Acts of March 15th 1832, J 6, and March 29th 1832, § 7, wTas to prevent the estates of non-residents from being withdrawn from our j urisdiction to the prejudice of those interested in the distribution.</p> <p>3. Under the Act of June 16th 1836, \ 3, executors under authority of a foreign country cannot transfer stocks, &c.: those of a sister state may.</p> <p>4. In many respects the sister states are not to'each other as foreign states.'-</p> <p>'5. There is no distinction here between the powers of a foreign executor and an administrator.</p>

<p>Error to the Court of Common Pleas of Chester county: No. 206, to January Term 1872.</p> <p>This was an action of assumpsit by J. Armstrong Coates and Elizabeth his wife in her right against John A. Mackey, administrator, &c., of John Mackey, deceased.</p> <p>The declaration was in the common counts, and on the call of the defendants the plaintiff furnished the following bill of particulars :—</p> <p>“ The claim of the plaintiff in this case, is for the sum of $1000, with interest on the same from January 1st 1864, for money had and received to the use of the plaintiff, by John Mackey in his lifetime. The said sum of $1000 having been received from James Steele as the proceeds of a mortgage given by James Steele to David Mackey, the father of the plaintiff.”</p> <p>The case was tried, November 13th 1871, before Butler, P. J.</p> <p>David Mackey died in 1863; Elizabeth Coates was one of his children, and John B. Mackey was executor of his will.</p> <p>James Hodgson, a witness for the plaintiff, testified, that shortly after David’s death, John Mackey, who was his brother, said to the witness, that the executor of David had threatened to bring suit against him for the amount of Steele’s mortgage; “ John said to .me ‘if you fellows will let me alone, I will carry out David’s order’ — that was to collect that mortgage of Jimmy Steele, and hand the money over to Lizzie Mackey, and I pledged myself to do it. I then turned to him and looked him in the face, and said to him, ‘John, will you do it?’ and he said, ‘I will.’ I then pledged myself to let him alone and not join in a suit. He said, ‘ I have your honor to not meddle with it, and you have my honor that I will pay it.’ He then said, ‘if John B. Mackey does sue me, I have an old instrument of writing that was paid ten years ago, and nothing on it to show it was paid. I will bring it in and beat him in spite of his teeth. I will collect the money and pay it over to Elizabeth.’ He took out the instrument and showed it to me. * * * I heard nothing more until after the suit; he came to me to tell me that he had beaten his nephew, John B. Mackey, and that he would now carry out his promise, and pay the money over to Elizabeth. Soon after I met him in John Pitt’s meadow with John Miner. He repeated the same language in part in his presence. He repeated it afterwards again, in the presence of Levi Hall.” John Mackey died about 1867, two or three years afterwards.</p> <p>John Pitt testified, that Elizabeth Mackey (Coates), soon after her father’s death, wanted him to take her to West Chester to file a caveat to her father’s will. John Mackey was present; he said to her that there was $1000 had been transferred by her father to him; this money would be paid over to her and would make her nearly equal, and advised her not to enter the caveat; he said, the $1000 was a certain thing, and it was difficult to break a will; she then agreed not to enter the caveat. John Mackey afterwards told Elizabeth, in the presence of witness, that the money had been paid over to him, and when he got well enough, he would pay it to her; he also said that he would not be able to pay witness a debt he owed him, as he had to pay Elizabeth $1000.</p> <p>There was evidence from a number of other witnesses to the same effect.</p> <p>The following letter was given in evidence :—</p> <p>“January 7th 1864.</p> <p>“ John B. Mackey: — This will inform you that in consultation with your father, since he made the will (which you have proven), he directed me to pay over to your sister Lizzie the amount due from James Steele. I refrained from mentioning it to any one except Lizzie, until I received the money, which I will now pay over to her the first opportunity.</p> <p>“ At a glance, I presume you will see the justice and propriety of the same.</p> <p>“ Had I not informed Lizzie of this provision in her favor, it was her intention to contest the will; but that satisfied her, and I think it ought to satisfy you and all the rest.</p> <p>“ Yours, &c., John Mackey.</p> <p>“ If she sees fit to lend you the money for present emergency I have no objection. J. M.”</p> <p>The Steele mortgage to David Mackey was dated November 12th 1860, to secure $922 on land in Maryland, and was assigned by deed dated June 13th 1861, to John A. Mackey, a son of John Mackey. There was evidence that John Mackey had said that the mortgage had been assigned to John A. because he and David were both getting old, and Maryland was about to secede, and he was to collect as soon as possible and hand it over to Elizabeth.</p> <p>There was evidence also that $1113.04, the money due on the Steele mortgage, had been paid to John A. Mackey by the attorney who had collected it, and by John A. paid to his father, John Mackey.</p> <p>The defendant gave in evidence the records of a foreign attachment in the Common Pleas of Chester county, issued March 23d 1864, at the suit of John B. Mackey, executor, &c., of David Mackey, against John Mackey ; the attachment was dissolved by the giving of bail.</p> <p>The plaintiff’s claim in that suit was the proceeds of a mortgage held by David Mackey against James Steele, which had been paid to John Mackey.</p> <p>The defendant pleaded non assumpsit, and also put in a plea of set-off of a debt of $855.08, due to the defendant by the plaintiff in his lifetime.</p> <p>The set-off given in evidence under the plea was the following:—</p> <p>“$855.08. “April 25th 1855.</p> <p>“Due John Mackey for principal and interest on money borrowed April 16th 1842, eight hundred and fifty-five dollars and eight cents, which I promise to pay one year after date with interest. Witness my hand and seal.</p> <p>“David Mackey, [l. s.]”</p> <p>The defendant gave evidence that the only claim in the foreign attachment trial was for the money collected on the mortgage, and the only defence the set-off; there was no allegation that the money collected on the mortgage belonged to anybody but John B. Mackey, executor. The verdict and judgment were for the defendant for $258.25.</p> <p>The defendant’s point was :—</p> <p>“ The verdict and judgment in the case of John B. Mackey, executor of David Mackey, against John Mackey, in which the money claimed in this suit was recovered, is a conclusive bar to the plaintiff’s recovery in this case.”</p> <p>The court charged:—</p> <p>“ The court cannot instruct the jury as requested. The verdict and judgment referred to do not present a bar to the plaintiff’s recovery. If David Mackey transferred the mortgage (in the manner shown by the evidence) as a gift or advancement to his daughter, and the defendant received the money for her, promising her that he would hold it for, and pay it over to her thereafter, the verdict and judgment in the suit of David Mackey’s executor against him does not stand in her way.” * * *</p> <p>The verdict was for the plaintiff for $1531.75</p> <p>On the removal of the record to the Supreme Court by the defendant, amongst others, he assigned for error the answer to his point.</p>

<p>Error to the Court of Common Pleas of-Chester county: No. 281, to January Term 1872.</p> <p>On the 7th of March 1870 William McCullough recovered judgment for $724.98 against The Philadelphia and Baltimore Central Railroad Company. On the 22d of September 1870 the plaintiff issued a fi. fa., to which the sheriff returned, “ that the railroad company has no office in the county of Chester, and has no personal or real estate therein; therefore same remains wholly unsatisfied.”</p> <p>On the petition of the plaintiff the court (Butler, P. J.) awarded a writ of sequestration, and appointed Samuel M. Felton sequestrator.</p> <p>The defendants removed the record to the Supreme Court by certiorari, and assigned the awarding the writ of sequestration for error.</p>

<p>Error to the Court of Common Pleas of Chester county: No. 176, to January Term 1872.</p> <p>This was an action on the case brought October 1st 1869, by John C. Johnson against The West Chester and Philadelphia Railroad Company, for negligence, by which the plaintiff was thrown from the car of the defendants and lost his arm.</p> <p>The Philadelphia and Baltimore Central Railroad and the defendants had a common platform and station-house at a point called “Baltimore Junction,” the Baltimore railroad being on the south-west side of the platform, and the defendants’ road being on the north-east side; the two roads were almost united at the east end of the platform, and then diverged south and north, so that the distance across the platform at about the middle of its length was 46 feet.</p> <p>The Baltimore Central Road connected also with the Philadelphia, Wilmington and Baltimore Railroad at Lamokin, about eight or nine miles from the Baltimore Junction. By arrangement between the companies, tickets are sold from Wilmington around by Lamokin and over the Baltimore Central Railroad, and the defendants’ railroad to West Chester.</p> <p>The trains on the Baltimore Central Railroad, according to their schedules, left Philadelphia at 4.30 o’clock p. M., Lamokin 5 o’clock p. m., and Baltimore Junction at 5.27 o’clock p. M. On the defendants’ road the trains left for West Chester from Philadelphia at 4.35 o’clock, from Baltimore Junction at 5.27 o’clock p. M. By their advertisements, the defendants announced that they connected with the Baltimore Central Railroad at Baltimore Junction by trains, leaving Philadelphia at 7.40 o’clock A. M. and 6.45 o’clock p. M.</p> <p>On the 27th of May 1869, the plaintiff bought a ticket at Wilmington for West Chester; he came upon the Philadelphia; Wilmington and Baltimore Railroad to Lamokin, there took the train on the Baltimore Central Railroad to Baltimore Junction; he got out there to take the defendants’ train to West Chester ; their train was there when he arrived; he crossed the platform to the last car of the train, whilst he was getting on, just as the train started, he fell, the wheels of the car passed over his arm and crushed it, so that it was necessary to amputate it.</p> <p>The evidence of the plaintiff was, that the defendants’ train was there first, and that the Baltimore Central train came immediately afterwards; that plaintiff got off of that train as soon as it stopped; he had a small valise, a small coil of rope of about two pounds weight and a suit of clothes; he “ walked across the platform pretty fast, between a walk and á run,” he supposed the train was not in motion when he attempted to get on it.</p> <p>The Baltimore Central train arrived at the junction at 5.28 P. M.; the time allowed for plaintiff to get on was very short; the conductor on Baltimore Central train knew that the plaintiff was on his train for West Chester; he gave no signal to the defendants’ train that he had no passengers; the West Chester train started as soon as the Baltimore Central reached the station.</p> <p>James Wilcox, for the defendants, testified that when the plaintiff ran across the platform the West Chester train was distinctly in motion, running about three miles an hour; the train did not wait more than a minute after the Baltimore Central train came up.</p> <p>William McCullough testified that he saw plaintiff running across the platform, the train was then distinctly in motion; the conductor of the West Chester train called to hold up; he then heard that there was a man under the car. “ It took about five seconds for all this to happen.”</p> <p>The conductor of the West Chester train testified that the conductor of the other train “beckoned to him to go-ahead. We started. I ran forty or fifty feet to ge t on our train. I saw a man within eight feet of our train. Told him not to get on. A young man was standing between him and me. Johnson caught hold of the railing and it turned him round; went down on his left side; held on when he went down; made three or four steps backwards, and his hold was broken. After we passed I saw him under the stationary platform; he walked up the steps. I asked him where he came from ; he said from the other train. He pulled out a ticket and handed- it to me. Our car was about moving when the Baltimore came up. I got on our train after it started. When Johnson got on our cars we were going at the rate of three or four miles an hour. I hallooed to him to hold up. He was coming a fast run. I knew he could not get on; had a valise in his hand. We did not stop there for the Baltimore train. * * * We always stopped at the Baltimore Junction and took on passengers if they were there. Length of stopping is according to circumstances. Time is allowed for passengers to get off and on. Time varies from half a minute to a minute and a half. The other train pushed on directly after ours. We generally get passengers there. The train went after he seized the railing, six or seven feet. The Baltimore conductor signalled me he had no passengers. If he had, I would have stopped our train. We are at liberty to wait for passengers there. I got on our train after it started. Johnson followed me in about three seconds after I got on.” * * *</p> <p>A number of witnesses testified that the West Chester train was perceptibly in motion when the plaintiff attempted to get on.</p> <p>The plaintiff’s points were:—</p> <p>1. Railway corporations, acting as carriers of passengers, are bound to use all the diligence necessary to transport those passengers in safety; and where it happens that a passenger is injured, the burden of proof lies on the corporation to show that such diligence has been used.</p> <p>4. When John T. Johnson, on the 27th of May 1869, arrived at the Baltimore Central station, on the West Chester Railroad, he had a right to suppose and believe that the West Chester train was in waiting to receive him, and also, to act in that supposition and belief till distinctly admonished to the contrary; and if the West Chester train started without such admonition being given so as to be clearly indicated to him, under the circumstances which surrounded him, by some act or word on the part of those having control of the train, the defendant is responsible for whatever injury happened to him for want of such admonition.</p> <p>5. Even if the jury believe that the train was in motion, if it was not apparent that it was distinctly under way, but might reasonably be supposed by one in the plaintiff’s circumstances to be only preparing to get under way, then it was not negligence in the plaintiff to endeavor to get on board the car.</p> <p>6. Whether there was negligence or not, on either side, is a question solely for the jury.</p> <p>The answers were :—</p> <p>“1. This may be true where the injury occurs while the passenger is within the car. But the principle is inapplicable here, inasmuch as the plaintiff was injured while attempting to get upon the train.</p> <p>“ 4. This is true; but if the train was running away from the station, and could be perceived by the plaintiff to be doing so when he came up, this was a sufficient admonition, and could not be disregarded. If the train could be so perceived to be running, it was the plaintiff’s duty to observe it.</p> <p>“ 5 & 6. These are fully answered in the general charge.”</p> <p>The court (Butler, P. J.) charged:—</p> <p>“ The plaintiff claims to recover compensation for an injury which he says resulted from the defendant’s negligence.</p> <p>“■To entitle him to succeed it must appear, first, that he was injured; and second, that the injury resulted wholly from the defendant’s negligence — not being contributed to in. any degree by negligence on his own part.</p> <p>“ That he was seriously injured is fully shown.</p> <p>“Did this injury result from negligence in the defendant,-and from it alone ?</p> <p>“ To ascertain this it is proper to inquire, first, whether the defendant was guilty of any negligence tending to the injury. And if it was, then, second, whether the plaintiff was also guilty of negligence tending to the same result.</p> <p>“ As the Baltimore Junction was an appointed stopping-place for the train which the plaintiff endeavored to enter, it was the duty of the company defendant, to keep the train standing so long as was necessary to enable the plaintiff to enter safely, if he was then seeking to do so at the time it started.</p> <p>“ The allegation of the plaintiff is that the train started too soon. If he was present endeavoring to enter when it started, his allegation is well founded. And if such too early starting produced his injury, without being aided by negligence on his own part, he is entitled to recover.</p> <p>“ Then was he present seeking to enter when the train started ? This is the first question in the cause. To ascertain how it should be answered we will turn to the evidence.” * * *</p> <p>The court recapitulated the evidence.</p> <p>“ Now, looking at the question in the light of this evidence, Was the plaintiff present, seeking to enter when the train started, or did he come up after it had gotten under way ? If the latter be the fact, the plaintiff cannot recover, and your inquiries need go no further. If, on the other hand, he was present when it started, seeking to enter, and his injury resulted from its too early, moving, he can and should recover; unless, indeed, he too was guilty of carelessness tending to the same result.</p> <p>“ And thus (if you think he was so at the train seeking to enter at the time it started — before it got distinctly under way), you will be brought to the second question stated.</p> <p>“Was he guilty of such carelessness? When he attempted to enter the car, his hands and arms were to some extent, encumbered. Some of the witnesses have testified that he was carrying a valise, a bundle and a coil of pipe. Yet if the train was entirely still when he stepped from the platform by its side, it is not suggested that there was any want of care in the attempt to enter. If, however, it was not entirely still — was in the act of starting— taking up the slack, as one of the witnesses has denominated it, but was not yet distinctly under way when he attempted to enter, then it is for you to determine whether he was or was not guilty of carelessness in making the attempt, encumbered as he was. What was the situation of the train at the time the plaintiff sought to enter, we have already considered in examining the first question stated. If you find it was entirely still, it is not alleged, we repeat, that’the plaintiff was guilty of carelessness in attempting to enter. If you find it was not entirely still — was in the act of starting as before described, but was not clearly and distinctly under way, then you will say whether it was or was not careless to attempt to enter, encumbered as the plaintiff was.</p> <p>“ The defendant has asked us to instruct you that if the train was in motion when the plaintiff attempted to get upon it he was guilty of negligence and cannot recover.. If by the term “motion ” is meant running upon the track — distinctly running, so as to be perceptible to those alongside — the point is affirmed; otherwise it is not. There may have been some motion, incident to starting and preceding it, yet of so slight a character that the law cannot pronounce an attempt to enter at that time negligent; but must leave the jury to judge of it in the light of all the circumstances. But if the train was distinctly running upon the track when the plaintiff attempted to enter, then he was guilty of negligence and cannot recover. If his injury resulted from an attempt to enter under such circumstances it must be regarded as the direct consequence of his own folly. No one has a right to attempt to get upon a running train. To do so is to imperil his own life and the lives of others. It is therefore a plain disregard of duty. Generally what constitutes negligence in a particular case, is a question for the jury ; because negligence is want of ordinary care. To determine whether there has been negligence in a given case therefore involves two inquiries ; first, what would have been ordinary care under the circumstances; and, second, did the conduct in question come up to the standard. In most cases the standard is variable, and must be found by the jury. But where it is fixed —the measure of duty defined — entire omission to observe it, is negligence. Thus it has been held to be the duty of a railroad company to decrease the speed of its trains while passing a sharp curve; to signal their approach to the crossing of a common road; to afford time for passengers to get safely on and off at sta-L tions. And the duty of passengers to approach and leave trains by way of the platforms provided; to keep off the road except when there is occasion to cross it, and when there is such occasion to stop, look and listen for approaching trains before crossing. And that an omission of this duty is negligence.</p> <p>“ Now, that it is equally the duty of all persons to stand away from a train running upon the track, and that a failure to do so is negligence, cannot be doubted.</p> <p>[“ We therefore charge you that if the train was distinctly running upon the road when the plaintiff attempted to enter it he cannot recover.]</p> <p>[“ It is possible the train should have awaited the plaintiff’s arrival from the Baltimore road (if he was there when it started). But whether it should or not is unimportant in this action]. If the defendant failed to keep its contract with him in this respect his remedy was by an action for its breach. [He could not set his life or limbs upon the hazard of a leap at the running train and hold the defendant liable for the consequence of such folly.]</p> <p>“ Now in conclusion, we repeat: To entitle the plaintiff to re-t cover you must find from the evidence that his injury resulted from negligence in the defendant, and from this alone — not being contributed to in any degree by want of care on his part.” * * * The verdict was for the defendants.</p> <p>The plaintiff removed the ease to the Supreme Court.</p> <p>He there assigned the following errors :—</p> <p>1-2. The answers to his 1st and 4th points.</p> <p>3. Failure to answer his 5th point.</p> <p>4, 5, 6. The parts of the charge in brackets.</p> <p>7. In not presenting the case in its proper light to the jury, having failed to give any, or just weight, to the vitally important fact, that the trains on the two roads were connecting trains, and the defendant was, beyond dispute, guilty of negligence in moving the West Chester train before passengers arriving by the other train had time to transfer themselves from one train to the other.</p>

<p>1. Davis owning a large tract of land on which was a mill, dam and race, granted to his son a part of it on which was the mill (the dam and race being on the part not granted), “ together also with the mill-dam and race on the several courses as they now run, and have heretofore been in use for the mills through the upper plantation, * * * and all the land now drowned and occupied by said dam and race, or that has been drowned by the same, with the full and uninterrupted right and use of all the water falling into the said dam and race, to be conveyed along the same,” &c. Held, that the land passed.</p> <p>2. The maxim “ Quoties in verbis nulla est ambiguitas, ibi nulla expositio contrd verba fienda est, applied.</p> <p>3. Although a strained interpretation may be admissible, where an absurdity would ensue, yet if the intention of the parties is not clear but in equilibrio, the words should receive their natural construction.</p>

<p>1. D. owned, land, in Philadelphia and Chester county. C. entered a judgment against him in Philadelphia, September 21st, which by transfer became a lien in Chester county, September 22d 1868. II. entered ajudgment in Philadelphia, December 26th 1868. M. recorded a mortgage in Chester county, December 9th 1869. K. entered a judgment in Philadelphia, December 15th 1869, which by transfer became a lien in Chester county, December 16th 1869. On the 9th of April 1870, C. assigned his judgment with its liens to H. On the 6th of June 1870, the sheriff sold D.’s land in Philadelphia for enough to pay C.’s judgment. On the 22d of October 1870, the sheriff sold D.’s land in Chester county for enough to pay O.’s judgment. The proceeds of the sale in Philadelphia being in the sheriff's hands, the proceeds in Chester county were called into court for distribution. Held, that they were properly awarded to C.’s judgment assigned to II.</p> <p>2. When a defendant’s property is sold under execution, and the proceeds paid to the sheriff, it is a discharge of the debtor to that amount.</p> <p>3. A sale of property and receipt by the sheriff are not, per se, satisfaction of any particular encumbrance, although its lien may be extinguished.</p> <p>4. A creditor having two funds subject to his encumbrance, may pass by the first, and come upon the second, dependent however upon the equities amongst the junior lien-creditors.</p> <p>5. -Benner b. Phillips, 9 W. & S. 20; McGinnis’s Appeal, 4 Harris 445, distinguished.</p>

<p>1. By the Act of April 26th 1850, § 4 (Ejectment), one who has acquired the plaintiff’s title after ejectment brought, may pursue the action to verdict and judgment; but is not bound to pursue the same ejectment.</p> <p>2. One so acquiring the title cannot oust the plaintiff on the record against his will.</p> <p>3. The Act of April 26th 1850, § 4, construed.</p>

<p>Error to the Court of Common Pleas of Delaware county: Of July Term 1871. No. 101.</p> <p>This was an amicable action and case stated, commenced December 2d 1870, between Robert Patterson plaintiff, and the County of Delaware defendant.</p> <p>The ease stated the following facts:—</p> <p>“ The plaintiff is the owner in fee of a certain lot of land in the city of Chester, in the county of Delaware, situate, &c., upon which is erected a cotton factory. The plaintiff owns and occupies said mill, and owns the machinery therein which is necessary for the purposes of his business in running said mill. The commissioners of the county of Delaware previously to the last triennial assessment in issuing their instructions to the several assessors in the county, embraced in said instructions the following order, viz.: — ‘ You will also take an account of the machinery in all woollen and cotton manufactories within your township as real estate when owned by the proprietor or owner of the building in which such machinery is located, and when owned by a tenant you will return the same for school purposes alone.’ Under these instructions the said property of the plaintiff was returned as follows : ‘ Square of ground, factory and machinery,’ and the whole' assessed as real estate at the sum of $33,000.</p> <p>“ The commissioners levied a tax for county purposes on the said total assessment, of three and one-half mills to the dollar, amounting to $115.50. Under a warrant issued by the commissioners, the collector of county tax for the year 1870 demanded of the plaintiff the whole amount of the tax, viz., the sum of $115.50. Payment of that part of the said sum of $115.50 which the plaintiff supposed would be the proper proportion of the machinery included in the said total assessment, was refused by the plaintiff. Thereupon the said collector made a distress on the personal property of the plaintiff, to wit, — certain bales of goods, and was about to advertise and sell the same for the payment of the said tax. His property being thus under distress the plaintiff paid the said tax, under protest, of which protest he notified the collector at the time of payment.</p> <p>“ It is submitted for the opinion of the court, whether the said machinery of the plaintiff was properly taxable for county purposes as a part of the said mill and real estate, and whether it should have been included in the said total assessment as aforesaid with the said land and factory. And if the said tax was improperly and unlawfully assessed, and levied by reason of the machinery being included in the assessment, then judgment shall be entered for the plaintiff; but if the court should be of opinion that said tax was not unlawfully and improperly assessed and levied, then judgment to be entered for the defendant.”</p> <p>The court entered judgment for the defendant, Butler, P. J., delivering the following opinion :—</p> <p>“ It is reasonably plain, we think, that the legislature intended to tax all real estate within its jurisdiction, except such as is expressly exempted.</p> <p>“ The 32d section of the Act of 1844 provides that: ‘ All real estate, to wit, houses, lots of grounds, ground-rents, mills and manufactories of all kinds, furnaces, forges, bloomeries, distilleries, sugar-houses, malt-houses, breweries, vineyards, fisheries, ferries, wharves, and all other real estate not exempt by law from taxation, shall be valued and assessed for all state and county purposes.’ Language more comprehensive could not have been employed. After designating real estate in general terms, an attempt is made to enumerate the several descriptions or kinds, apparently for greater certainty'; and then, as if fearful of having overlooked and omitted something that belongs to the class, general terms are again resorted to, that nothing may escape.</p> <p>“ And this act, it will be observed, differs in this respect from that of 1834 — the latter closing with the enumeration of certain kinds of real estate; and the enumeration, also, falling short of that contained in the Act of 1844. And this difference is significant. The legislature evidently intended by the subsequent act to embrace all real estate of every description.</p> <p>“ That the property taxed in the case before us is real estate is not, of course, doubted. But the plaintiff thinks this particular leind of real estate was not intended to be taxed. He argues that the enumeration of certain kinds in the act, as ‘ houses, lands, lots of ground, ground-rents, mills,’ &c., was to designate precisely what the legislature intended by the preceding terms ‘ all real estate,’and that everything not embraced in this enumeration is excluded. But this view seems to overlook the very important language, before referred to, which follows the enumeration: ‘ all other real estate.’</p> <p>“ But suppose we adopt the plaintiff’s view — that the operation of the Act of 1844 is to be confined to the several descriptions of real estate enumerated; what then ? Does not the property here taxed fall within the enumeration ? The machinery in a mill is as much a part of it as are the walls. As the Supreme Court has said in Gray v. Holdship, 17 S. & R. 413: ‘ the machinery, the wheels, stones, and even the bolting-cloths, are a part of the mill,’ and therefore a part of the real estate.</p> <p>“ The plaintiff admits this; but says the legislature did not use the term ‘ mill’ in this sense; that while such is the legal signification of the term, the popular meaning is otherwise; and that the legislature must be regarded as adopting the latter. But is the popular meaning otherwise ? When a man, of common intelligence and business experience, speaks of ‘ Mr. Patterson’s Mill,’ what does he mean ? The establishment in its completed condition — fitted for its proper use ? Or the bare walls ? (For there is no intermediate point; all between, from the engines to the spindles, is machinery.) He could hardly mean the latter; for tbe walls do not constitute a mill, and bear no more resemblance to it, than to a barn.</p> <p>“ To justify a departure from the legal signification of the term employed in the act, it should, at least, appear very distinctly that it has a different popular signification. In our judgment it does not so appear. And we need not, therefore, determine what would be the proper rule of construction if it did.</p> <p>“ Under the Mechanics’ Lien laws a question arose very similar to the one we are considering. The original act authorizing such liens, confined them to claims for work done and materials furnished about the erection of any ‘ house or other building.’ It was, therefore, contended that the engine in a saw-mill, the copper kettles and boiler in a brew-house, and the machinery in a manufactory, are not a part of the £ building’ — not so understood in common parlance — (and with greater reason, we think, than it is now contended that the machinery of a mill is not a part of a mill), and, therefore, that no lien could be filed by those who furnished these things, or did work upon them. But the Supreme Court decided otherwise; holding that everything necessary to perfect the establishment (mill, manufactory, &c.), and fit it for the uses designed, is a part of it, and falls, therefore, within the term £ building Gray v. Holdship, 17 S. & R. 413; Wademan v. Thorp, 5 Watts 115; Morgan v. Arthurs & Co., 3 Watts 140.</p> <p>“ But it is urged that such a construction of the statute before us would produce inequality; that machinery would be taxed in one man’s h.ands and not in another’s, and that, therefore, the legislature cannot have intended it. Many of our tax laws, however, operate unequally; and it is difficult, if not impossible, to avoid it. As the Supreme Court has said in Philada. Saving Fund v. Yard, 9 Barr 359, some property is twice taxed — as in cases of ground-rents (the ground and also the rent issuing out of it being taxed); and land purchased on credit (the land and the money borrowed, or mortgage given, to pay for it, both being assessed). One man owning $50,000 invests it on real estate, at interest, and pays no tax; another owning but $1000, invests it in real estate, and he is taxed. Two men invest their means in lumber; as such it is not taxable. But one of them annexes his to his freehold — and it matters not how; he need not change its form, bore a hole or drive a nail — and immediately it becomes real estate, and liable to taxation: while the other may employ his about his business, hire it, erect it into buildings as a tenant, or use it in any way he sees fit (so that he do not annex it to his freehold), and it will remain personal, and exempt. And these latter instances are very similar to the case before us. While the property —the money and lumber — retains its original character it is exempt; when converted into real estate it is taxed. And while the plaintiff's machinery retained its original character of personalty it was exempt; when annexed to the freehold, and thus converted into real estate, it is taxed. It might have gone into the mill as the property of a tenant; of one from whom it was hired; or of the owner of the mill, for some temporary purpose; and it would have remained personalty and exempt. But when placed there by the owner of the mill for the common purposes of the establishment and with a view to permanency, it at once became real estate; its individuality and distinctive character were lost. Under every species of conveyance it will pass as a part of the mill. And the owner can with no more reason complain of the increase of his assessment on this account, than he could have done of the increase which occurred when he put his money into the land on which the building stands, or his lumber into the building itself.</p> <p>“ As further evidence that the legislature did not intend such a construction, we are pointed to the special Act of 1850, directing machinery to be assessed in Delaware county for school purposes; which act it is said was unnecessary if machinery was before taxed as real estate. We do not think there is much in this. It matters very little how the legislature of 1850 understood the Act of 1844. The Digest contains ample proof that the legislature not unfrequently acts in ignorance of the existing law. And we all know how much consideration is given to special acts, such as that of 1850. As it is said by the Governor in his last message: ‘Special bills are usually drawn by the member having them in charge, or by some one interested. By what is called courtesy it is considered a breach of etiquette for any other member to interfere with such bills. The result is that they are passed as originally prepared without examination,’ either as to the necessity or propriety of the legislation proposed. Still there was something for the Act of 1850 to operate upon without adopting the plaintiff’s view of that of 1844. There is machinery in Delaware county, and doubtless a large amount, in the possession of tenants and others, not taxable as real estate. And it is quite probable that it was such machinery that the Act of 1850 was intended to cover. Its terms are general, but they cannot properly be regarded as embracing machinery which has lost its distinctive character by being converted into real estate.</p> <p>“ What would be the result of adopting the plaintiff’s position ? If what he denominates machinery is to be cast out in the assessment of mills, what is to be included ? Simply the bare walls ? That would hardly be claimed. But where else could we draw the line ? According to the old rule by which it was sought to distinguish between real and personal property — physical annexation? That has been found impracticable, no rule at all, and has, therefore, long since been abandoned. Ch. J. Gibson, in Voorhis v. Freeman, 2 W. & S. 116, says: ‘ The criterion of physical annexation is so limited in its range and so productive of contradictions, even in regard to fixtures in dwelling-houses, to which it was adopted before England had become a manufacturing country, that it will answer for nothing else. The courts will be drawn away from it by its narrowness and want of adaptation to the business and improvements of the age. From the force of habit they have adhered to it after it has ceased to be a guide; for nothing but a passive regard for old notions could have led them to treat machinery as personal property when it was palpably an integrant part of a manufactory or mill, merely because it might be unscrewed or unstrapped, taken to pieces and removed, without injury to the building. It would be difficult to point out any kind of machinery, however complete in its character, or by what means held in its place, which might not with care and trouble be taken to pieces and removed in the same way; and the greater or less facility with which it might be done would be too vague a thing to serve as a test. It would allow the stones, hoppers, meal-chests, and running gear of a grist-mill, and the hammers and bellows of a forge, and parts of other buildings used for manufacturing purposes, to be put into the class of personal property. If physical annexation is the criterion the slightest taelc or ligament should constitute it, else if we get away from it ever so little, we shall have no criterion at all. There are so many fashions, methods and means of it, and so many degrees of connection between material substances that there is nothing about which men would more readily disagree than whether a thing held by a band or cleat was permanently annexed.’ And thus was the rule of physical annexation (as is said in Meigs’s Appeal, 12 P. F. Smith 28) exploded and abandoned.</p> <p>“ Now did the legislature intend that the assessors should go back and attempt an application of this abandoned rule, which the courts had found to be, and had pronounced, impossible of application ? We presume not. And if not (and the machinery is to be excluded, as the plaintiff urges), it must have intended that the assessors should confine themselves to the bare walls. There is no middle ground; for, as already observed, from the engines and wheels up to the smallest necessary article, all must be pronounced machinery, if any part is. There is no other place — no point between the walls and the complete equipped mill (as painful experience has demonstrated), at which a line can be drawn designating where the mill ends and the machinery commences.</p> <p>“ That the assessors were not intended to stop at the walls is clear. And that there is no point between the walls and the .completed establishment at which they can stop is to us equally ■clear.</p> <p>“We cannot, therefore, adopt the views of the able counsel who represent the plaintiff, whether we consider the general terms used in the act, or the special terms on which they rely.”</p> <p>The plaintiff took out a writ of error, alleging the entering of the judgment for error.</p>

<p>Error to the Court of Common Pleas of Chester county: No. 249, to January Term 1872.</p> <p>This was an action of assumpsit by Charles P. Hewes against Elisha B. Taylor.</p> <p>The plaintiff, residing in Chester county, Penna., had been selling phosphate of lime to the firm of Ridgway & Miers residing at Crosswicks, N. J. They were in his debt and desired more phosphate; being unwilling to give them further credit, the defendant as the plaintiff alleged, in consideration of a ton of phosphate delivered to him by the plaintiff, agreed to become responsible for the payment of phosphate sent to Ridgway & Miers. The plaintiff accordingly sent them more phosphate, the amount due by them and unpaid being $622.78.</p> <p>The plaintiff gave in evidence the following letters:—</p> <p>West Chester, September 9th 1871.</p> <p>Elisha B. Taylor:</p> <p>Respected Friend: — I have an order from Ridgway & Miers for thirty tons of phosphate. They have already about six hundred dollars ($600) worth, — most of it sold I suppose. The agreement between Ridgway & Miers and myself is that they are to sell my phosphate on commission, and after all or any part of what I send them is sold, they are to give me their note for the amount sold payable in sixty days with your endorsement.</p> <p>Now, as this will be a larger amount than they have previously had, I don’t feel willing to ship it without first consulting you and knowing whether you will hold yourself responsible to me for the amount of, say two thousand dollars, if I send them that amount of phosphate, as I know nothing about Mr. Ridgway or his partner, or at least very little. Please write an answer by bearer.</p> <p>Yours truly, C. P. Hewes.</p> <p>West Chester, September 10th 1869.</p> <p>Elisha B. Taylor:</p> <p>Respected friend: — I wrote to you yesterday by N. T. Hayes in regard to sending Ridgway & Miers phosphate and you going their security. N. T. Hayes tells me you will go their security to me for the amount of two thousand dollars for the compensation of one ton of phosphate. This is a pretty heavy shave, but as it may turn out to Ridgway & Miers’s benefit as well as my own, I will agree to send you the one ton of phosphate as you propose. Please send me word when and where you want it shipped, you to pay freight.</p> <p>Please answer by return of mail.</p> <p>Yours, &c., C. P. Hewes.</p> <p>Doe Run, September 9th 1869.</p> <p>C. P. Hewes:</p> <p>Sir: I received yours yesterday. Please send one-half ton of phosphate to Samuel Evans, Westdale Station, Delaware county. The other half-ton I will send for or order when I want it.</p> <p>Yours respectfully, E. B. Taylor.</p> <p>The plaintiff testified: * * *</p> <p>“ I wrote to Mr. Taylor September 9th 1869, and received a verbal message in reply. In consequence of that message I wrote next day, dated September 10th 1869. To that letter I received his reply, dated September 9th 1869. September'15th 1869, I shipped the 30 tons to Ridgway & Meirs. I wrote the letter dated September 9th on the day of its date. I sent it by .private messenger. He brought it back with a message from Taylor. I sent the letter of September 9th, by Nathan T. Hayes. Mr. Taylor’s letter of September 9th came subsequently to mine of September 10th and in answer to it. There was an envelope on it at that time. I believe the envelope was post-marked Doe Run, September 9th. My letter dated September 10th was sent to Mr. Taylor that day. I wrote no other letters to him about that time. I don’t remember sending to him more than once.”</p> <p>The defendant’s point was :—</p> <p>There is no evidence of a guaranty or promise on the part of defendant to pay the debt of Ridgway & Miers, and under the Statute of Frauds of 1855, the plaintiff cannot recover.</p> <p>The court (Butler, P. J.) charged the jury that if they found that Mr. Taylor’s letter of September 9th was written in answer to Mr. Hewes’s letter of September 10th, they should find a verdict for the plaintiff, and reserved the point submitted by the defendant.</p> <p>The jury found for the plaintiff for $723.63.</p> <p>The court subsequently entered judgment for the defendant, notwithstanding the verdict, and delivered the following opinion :—</p> <p>“ This is an action to charge the defendant upon a special promise to answer the debt or default of another. On the trial the defendant made the point that no agreement in writing was shown signed by him, as required by the Act of April 26th 1855. This point was reserved-r — the jury being instructed by consent of the parties to find a verdict for the plaintiff for $723.63, if they should first find that the defendant’s letter of September 9th was written in answer to the plaintiff’s of September 10th. And coming now to consider the point, we are clearly of opinion that judgment must be entered for the defendant. What will constitute such writing as is required by the statute, has been much discussed in the English cases, and a good deal in those of our own country; but the time afforded us at present will not admit of a reference to them. That it may be found in a connected correspondence there is no room for doubt. As is said by Mr. Parsons (Parsons on Contracts, p. 298), it may be contained in one or in many papers, provided where there are several the pieces be so connected by mutual reference or otherwise, that there can be no uncertainty when taken together and -viewed as a whole. But this connection of the several parts cannot be made out by extrinsic evidence. If they may be read»apart, or in other connections, evidence is not admissible to prove that they were intended to be read together.</p> <p>“ In the case before us the only writing is what is contained in the correspondence. And the plaintiff must rely entirely upon his letter of September 10th and the defendant’s of September 9th. If the dates agreed, these letters-would still not support the action. The plaintiff infers assent to his written statement from the defendant’s order for phosphate. And if the dates corresponded, this inference would' have the support of probability. But it is by no means certain, and the lack of certainty would be fatal. But the dates do not correspond. The defendant’s letter appears to have been written and mailed on the 9th, one day earlier than the plaintiff’s; and purports to be an answer to one received on the 8th. It is impossible, therefore, to read it as an answer to the plaintiff’s of the 10th, and we cannot, as we have seen, resort to extrinsic evidence to explain this away and make the letters fit. Upon their face they show no agreement, and it would be as dangerous to resort to parol evidence to make an agreement out of them, as to prove an agreement by such evidence without them. Indeed, unless we change the dates and make the letters speak as of a different time, and then conclude that the defendant’s of the 9th was an answer to the plaintiff’s of the 10th, it does not appear even that the plaintiff’s was ever brought to the defendant’s knowledge. I believe the plaintiff says he forwarded it by mail. But while this affords evidence from which a jury might, probably, find that it was received, the law draws no such conclusion from it in this state, however the rule may be elsewhere: Tanner v. Hughes, 3 P. E. Smith 289 ; Bank v. Brown, 19 Id. 156.”</p> <p>The plaintiff took a writ of error, and assigned for error, entering judgment for the defendant on the reserved part.</p>

<p>1. The provisions of the Act of March 13th 1815, $ 5, limiting dissolution of incestuous marriages to the life of the party, are not confined to divorces but apply to all courts and proceedings.</p> <p>2. These provisions are not repealed by the 39th section of Act of March 31st 1860 (Crimes), which declares such marriages void.</p> <p>3. Walter married the widow of his son, and died, leaving her to survive him. Held, in the distribution of his estate, that the validity of the marriage could not be questioned.</p> <p>4. Repeals by implication are not favored.</p>

<p>Appeal from the decree of the Court of Common Pleas of Chester county: In Equity: Of January Term 1872.</p> <p>The facts under which the proceedings in this case arose were the following: —</p> <p>Isaiah Thropp was the owner of a lot of land on which were a mill and other buildings. He leased them for three years from the 1st of March 1829, and Joseph C. Gillingham and Augustus Gagg as assignees of the lessees, went into possession under the lease. The object of the lease was to dig for flint on the land and grind it, paying to Thropp a royalty. In the prosecution of their business, the tenants erected a frame building connecting it with the old mill, and put into both machinery suitable for their business. On the 13th of September 1870, a constable under two executions against the tenants, levied upon the frame building, subject to a prior levy by the sheriff, under an execution issued out of the Court of Common Pleas of Chester county; the constable so returned to the justice who issued the executions. On the 1st of October alias executions were issued by the justice. On the 10th of October, the tenants agreed with Thropp to surrender their lease in consideration of his releasing the rent due him, and permitting the machinery which had been levied on by the sheriff, and which Thropp claimed to be part of the realty, to be sold for the benefit of the creditors of the tenants.</p> <p>On the 13th of October, the tenants surrendered the lease, and Thropp took possession of the demised premises: on the 18th, the constable under the alias executions sold the frame building to Henry Bronson and Joseph Walker; on the 24th the lease was formally cancelled, and the surrender reduced to writing; Thropp thereafter continued in possession of the premises and buildings.</p> <p>Bronson and Walker being about removing the frame building by virtue of their purchase at the constable’s sale, Thropp filed a bill against them, praying that they might be restrained from removing the building or exercising any acts of ownership over it. An injunction was issued, and subsequently W. B. Waddell, Esq., was appointed master.</p> <p>He found that the frame- building having been erected for the purposes of trade was a movable fixture; that tbe lessees might move it during the term; that the defendants as the purchasers at the constable’s sale had also a right to remove it, and that their right had not been affected by the surrender to Thropp.</p> <p>On the coming in of his report, it was again referred to the master to find whether Thropp knew of the constable’s levy when he took the surrender of the lease. He reported that Thropp had no knowledge of the levy at the time of the surrender.</p> <p>Exceptions were filed to the report. ■</p> <p>In the opinion of the court on the report and exceptions, Butler, P. J., said: * * * “ But subsequently to the seizure in this case and prior to the sale, the tenant surrendered the lease, and the plaintiff, relying upon the principle that a 1 movable fixture ’ can only be severed during the existence of the term, or while the possession of the tenant continues, argues that no severance can now be allowed. It is certainly true that a tenant cannot enter to remove a fixture after the expiration of his term. Here the term provided for by the lease has not expired. The tenant has surrendered, and the effect upon Mm is the same as if it had. He could not, after quitting the possession in pursuance of this act, return and sever the fixture. But where another has acquired rights in the lease, can the tenant surrender such rights or prejudice them by terminating the contract with the landlord ? Suppose the tenant sub-let the premises, or a part of them, would his subsequent surrender oust the sub-tenant ? Clearly we think it would not (and it seems to have been so decided in Mekinzie Lexington, 4 Dana (Kentucky R.) 129), unless it may be where the landlord is without knowledge of the circumstances and would suffer in consequence of the neglect to inform him. In the case before us. the defendant acquired an interest in the lease by the levy on the building, which, as we have seen, was annexed to the term. Their title, under the sale, dates back to the time of the levy. Had the landlord been aware of the levy, we think it could not be doubted that the surrender which he accepted would not affect the defendants. It is found, however, that he was not aware of it. Still does this, under the circumstances, make any difference ? He is no worse off than if he had known it. The surrender cost him nothing. His tenant was insolvent? and he accepted a return of his property. But again, this is not an interest in the lease acquired by contract with the tenant, but by operation of law. A lien was created by the levy, and while it existed the tenant could no more dispose of the property than he could of any other chattel under execution. That he could not directly as by a sale, will be admitted, and that he could not indirectly, as by a surrender of the lease, to which it was annexed, is, we think, nearly as clear. Not only was a lien created by the levy, but possession was transferred to the officer and the building in effect severed: Paxton v. Steckel, 2 Barr 93; Welsh v. Bell, 8 Casey 12 ; so that when the surrender took place it was subject to the rights thus acquired. The character of the property was such that the officer could not take physical possession and remove it from the tenants’ custody, so that if the lien of an execution may in any case be lost by neglect or unnecessary delay in the officer, we see nothing that would justify the suggestion that the lien was lost here.” * * *</p> <p>The court decreed that the plaintiff’s bill be dismissed with costs.</p> <p>The plaintiff appealed to the Supreme Court, and assigned the decree for error.</p>

<p>Appeal from the decree of the Orphans’ Court of Northumberland county.</p> <p>Lewis Dewart, by his will dated December 10th 1851, and proved May 12th 1852, provided as follows :—</p> <p>“ Fourthly, I give and bequeath to my son William, in trust for my grandson, Lewis Dewart, Jr., the sum of two thousand dollars, to be paid to him between the ages of twenty-one and twenty-five, at the discretion of my son William, and I hereby charge my farms in Penn township, Union county, with the payment of the same ; and in case of the death of my grandson before the age of twenty-five, this legacy to lapse.”</p> <p>William L. Dewart, trustee, was appointed executor of the will. The land charged, consisting of several tracts, was sold by the sheriff under executions against William L. Dewart, in 1859, 1860 and 1861; it was at the commencement of these proceedings owned in distinct parts by George Schnure, John Hummel, Henry N. Backhus, Peter Kautz and Peter Hahn and under the decision of the Supreme Court, Dewart’s Appeal, 7 Wright 325, subject to the legacy to Lewis Dewart, Jr.</p> <p>Lewis Dewart, Jr., the legatee, attained the age of twenty-one years on the 6th of May 1870. On the 7th, William L. Dewart, the trustee, executed a writing, reciting the bequest, the sale of the land and the arrival of the legatee at the age of twenty-one years, and declared: “ Now, I, William L. Dewart, exercising the discretion given to me by the said will of my father, by these presents declare the said legacy and all the interest accrued upon the same to be now immediately due and payable to my said son, Lewis Dewart, and that the right of the same is now fully vested in him without possibility of lapse, and I hereby consent and agree that he may demand and receive the payment of the said legacy and interest from whomsoever the saméis now by law due and payable.”</p> <p>On the 6th of August 1870, Lewis Dewart, Jr., petitioned the Orphans’ Court of Northumberland county for a citation to Schnure and the other owners of the land to show cause why their land should not be sold to pay the legacy.</p> <p>The court (Jordan, P. J.) decreed that the owners of the land each pay to Lewis Dewart, Jr., such part of the legacy as was in proportion to the value of the land, respectively owned by them, with interest from May 6th 1870, the day when Lewis Dewart, Jr., attained the age of twenty-one years : the decree set out the specific sums.</p> <p>The defendants appealed to the Supreme Court, and assigned for error that the court erred in deciding :—</p> <p>1. That William L. Dewart, the trustee, could by the paper of May 7th 1870, make the $2000 legacy immediately due and payable so as to affect the sheriff’s vendees.</p> <p>2. That under the circumstances, said legacy became .due and payable May 6th 1870, on the arrival of the legatee at the age of twenty-one, and that the same could then be collected out of the lands on which it was made a charge.</p>

<p>This appeal was by Lewis Dewart, Jr., from the same decree, and argued in the Supreme Court at the same time as the preceding appeal.</p> <p>The errors assigned were, that the court erred in not decreeing :—</p> <p>1. That the said legacy of $2000 with interest thereon from April 26th 1853, should be paid to the appellant, that is to say, from one year after the testator’s death, to the day of making the decree.</p> <p>2. That the said lands should be jsold for the^payment of the said legacy and interest.</p>

<p>Appeal from the decree of the Orphans’ Court of Northumberland county, in the estate of Hugh Bellas, deceased, upon exceptions to the account of Simon P. Wolverton, administrator d. b. n. c. t. a. of said deceased.</p> <p>The decedent died previously to the 7th of November 1863, having made his will and several codicils which were proved on that day. The executors named in the will having renounced, or at their own request been discharged, letters of administration d. b. n. c. i. a. were issued to Simon P. Wolverton, Esq.</p> <p>By his will the testator gave to his wife for life the homestead property and other real and personal property, and made the following devises,:—</p> <p>“ 2. I empower the persons hereinafter named as my executors of this will to sell my tract of coal-land at the town of Shamokin, in Coal township, surveyed in the warrantee name of William Green, containing about three hundred and fifty acres strict measure, with power to them to lease and to sell the same, &e., * * * but the said tract shall not be sold within two years from my decease unless it be sold for the price of at least one hundred dollars per acre, strict measure, &c.</p> <p>“ 6. I give and devise to my daughter, Ann Caroline Rodrigue, the proceeds of the contract of sale, &c. * * * I also give and bequeath to her, the said Ann, the one-half part of the rents, issues and profits of my farm, saw-mill and other buildings and improvements with the timber land on and near Penn’s Creek in Limestone township, in Union county, to be paid to her half-yearly by my executors until she receive her share of the proceeds-of sale of my said tract at the town of Shamokin, in the name of William Green, and then said half part to cease to be received by her, but if this gift of the half of said proceeds should fail or be defeated, my executors shall pay to the said Ann C. Rodrigue, semi-annually, in lieu thereof, the sum of one hundred dollars until she shall receive her share of the proceeds of sale of said William Green tract, and no longer; but when she receives any part of her share from said William Green tract, her share of the rents, issues and profits or said semi-annual payments shall be reduced by an amount equal to the interest at six per cent, per annum of the part she shall have received of said proceeds of sale of the William Green tract.</p> <p>“ 8. I devise in fee to my three daughters, Eliza, Ann and Amelia, as tenants in common, to take effect immediately after the death of my wife, my homestead where I reside, above described and devised to my wife, for life, with the appertenances.</p> <p>10. “ As regards the residue of my real and personal estate, not above disposed of, I devise and bequeath itto my three daughters, Eliza, Ann and Amelia, in fee as tenants in common, viz., share and share alike (subject to the payment of my debts and funeral expenses and expenses of administration, and expenses of my real estate), to be by my executors divided among them fairly, either in the realty if practicable or in the proceeds of sale thereof, &c. * * *</p> <p>“ 11. I hereby constitute and appoint as the executors of this my last will and testament, my son-in-law, Charles Pleasants, &e., and I give them, or any two of the survivors of them, if one refuse to act, full power to lease, take possession, mortgage, make partitions and sell by either public or private sale as they may deem fit and judicious, all or any part of my estate, real or personal (except so far as the preceding would be inconsistent with the power), and upon their sales to make deeds of conveyance for the property they sell, either with or without any action or authority of the Orphans’ Court, as to them may seem most wise and most beneficial to my descendants and devisees or legatees; and in case it be necessary to raise money by sale of real estate for payment of debts or other purpose, I direct that my coal tract in the name of William Green be last sold, unless it can be sold at the price hereinbefore stated, and my other real estate shall be sold for that purpose, in the order my executors judge most advantageous, excluding the homestead above mentioned, and if it happen that only one of 'the persons named as executors should accept the office, or survive, then the power above given to sell real estate, shall be executed by him, but only on the written request of my three daughters or some two of them.”</p> <p>By a codicil dated November 3d 1860, he provided thus:—</p> <p>“ I make the following changes in my last will, dated the 10th day of October, A. D. 1860. I devise in fee to my friends, the Hon. Alexander Jordan, &c., and the survivor of them, as trustees, all the real and personal property and estate to which my daughter Ann 0. Rodrigue w'ould be entitled by my said last will, and these trustees and each of them are required to apply all the proceeds and profits thereof to her personal use ana support and benefit, from time to time, as she may have need and require when by her demanded in writing for herself and her children, but not to be applied or used otherwise.”</p> <p>Joseph Priestly afterwards became trustee for Mrs. Rodrigue.</p> <p>Mr. Wolverton, administrator, &c., filed a second account of his administration, in which he charged himself with coal-rents, rents of houses, and interest on proceeds of real estate, and amongst other things claimed credit for two items of $100 on the 30th of April and 30th of September 1869 respectively, each stated “ Joseph Priestly, trustee of Mrs. Ann C. Rodrigue, one semi-annual payment under the will.”</p> <p>Exceptions to these payments were filed, and were referred with the account to W. J. Greenough, Esq., as auditor.</p> <p>He found that more than $2000 of the charges had been received by the accountant from rents for coal taken from the “ William Green ” tract, and that the payments for Mrs. Rodrigue were “ wholly ” from the rents of that tract.</p> <p>The personal estate of the testator was insufficient to pay his debts, and the Penn Creek property, of which one-half the rents and profits were devised to Mrs. Rodrigue, was sold under a mortgage by which it was encumbered. The “William Green” tract was unsold.</p> <p>Mrs. Rodrigue had received her share of the rent of the coal tract after deducting her annuity.</p> <p>The auditor reported that the annuity to Mrs. Rodrigue had been properly paid out of the rents of the “William Green.” tract. The report was confirmed by the Orphans’ Court, Jordan, P. J.</p> <p>Mrs. Amelia S. Brisben, one of the daughters and residuary legatees of the testator, appealed to the Supreme Court.</p> <p>She assigned for error the decree of confirmation:—</p> <p>1. Because the devise to Mrs. Ann C. Rodrigue of the one-half part of the rents, issues and profits of the farm, &c., on Penn’s Creek, Union county, did not fail nor was it defeated in the sense of the will, and on the sale of said farm for the payment of debts, (be., she did hot become entitled to semi-annual payments of $100 each, but to the value of the one-half part of the said rents, issues and profits at the time of the said sale, to be paid semi-ánnually each year until she should receive from the proceeds of sale of the William Green tract an equivalent therefor.</p> <p>2. Because the leasing of the William Green tract reserving a specified sum of money for each ton of coal mined and taken therefrom by the lessees, was in reality a salé of the coal in the ground at that price, and in fact a sale of part of the soil and freehold of the William Green tract, and therefore, no matter whether the devise to Mrs. Rodrigue of one-half of the rents, issues and profits of the Union county farm had failed or been defeated, in the sense of the will, before the 30th of April 1869 or not, the payment then made to her trustee, as also that made on the 30th of September 1869, should have been diminished by the amount of the interest on the excess of the proceeds from the William Green tract over and above $700 (the amount of the semi-annual payments previously paid to her trustee without objection), from the times the respective parts thereof were received, to the date of each of said payments.</p> <p>3. Because, if the leasing of the William Green tract, as above mentioned, was not a sale of part of the soil and freehold, and if the payments stipulated in the lease to be paid by the lessees were rents, then such rents having accrued after the death of the testator, were no part of the residue of his estate devised to his daughters, or of his estate at all, and the said devise or legacy to Mrs. Rodrigue was not payable out of them.</p>

<p>1. The principle that for a mistake in law, equity will not relieve against a deed, &e., will not bar relief, if the party has acted upon a want of proper knowledge which he could not obtain, though vigilant in his search; nor where necessary information has been refused and withheld; nor where unconscionable advantage of circumstances whereby his will was coerced, and by undue pressure he had done what otherwise he would not.</p> <p>2. Relief against mistake in law will be given where there is actual or legal fraud, by one who thus seeks to obtain the execution of an agreement to benefit himself or those for whom he acts.</p> <p>3. A daughter against whom charges were made in a statement exhibited her by the executors of her father’s estate for the settlement of her share, was entitled to the freest access to her father’s books by herself or her agent or attorney.</p> <p>4. When a party has acted in misconception or ignorance of his title, and executed an agreement, &c., to his prejudice, he will be relieved in equity.</p> <p>5. A bill of review is not allowed to stand on strict law and against equity.</p> <p>6. The Act of October 13th 1840 (Review in Orphans’ Court) has no application to a case in which the distribution and payment were voluntary by the accountant, and made before the account filed.</p> <p>7 A will contained this clause: “And whereas, during my lifetime, I have made, or may hereafter make, advances in money, stock or otherwise, to my said son, or to the husband of either of my said daughters, and it is my express intention that the shares of all my said children shall be equalized, I hereby direct that such advances respectively shall be deducted from the share to be paid to the trustees of my said son, or to either of my said daughters whose husband may be so indebted to me.” Held, that “ advances” did not mean debts of the husbands but gifts to the husbands as advancements on account of the shares of the daughters, and they were not chargeable with interest.</p> <p>8. Commissions to executors on an estate of $168,000 under the circumstances fixed at 3 per cent.</p> <p>9. In this case an account after a distribution of the bulk of the estate upon a statement showing advancements and deducting them, a subsequent account of the executors with the report of auditor confirmed, payment of the balance found due,' &c., under the circumstances opened and corrected.</p>

<p>Appeal from the decree at Nisi Prius: No. 21, to July Term 1865.</p> <p>The bill in this case was brought by Henry Haines and J. Sergeant Price, devisees under the will of Hannah A. Hanson, against John Edgar Thomson and William It. Hanson, also a devisee under the same will.</p> <p>The bill averred that in 1858 Mrs. Hanson was the owner of a house and lot at the corner of Eighteenth and Spruce streets, Philadelphia, on which there was a mortgage of $7500; her husband, William R. Hanson, was largely indebted to Thomson; an arrangement was partly effected under which Thomson was to buy the house and lot for $30,000, subject to the mortgage; the consideration was to be paid partly by Hanson’s indebtedness to Thomson and partly in cash. A deed to Thomson for the property, dated May 31st 1858, was executed and acknowledged, and was shortly afterwards tendered to him, but declined, he alleging the price was too high ; the house being unfinished, Thomson advanced money to Mrs. Hanson to enable her to finish it; the sum so advanced was $9000, according to a statement between Thomson and Hanson made in October 1859; Thomson then agreed to advance $15,000 more, and it was agreed the whole $24,000 should be secured on Mrs. Hanson’s house. Mrs. Hanson not being' willing to execute a mortgage, it was agreed that a direct conveyance should be made to Thomson, and he execute a written defeasance; the deed theretofore prepared was delivered to Thomson, October 10th 1859, and at the same time an agreement was executed by Thomson, reciting the deed, that Thomson had paid $21,030.75, and was to pay $3000 more, and it was stipulated that if Hanson and wife should pay Thomson the $24,030.75 on or before the 1st of May 1863, Thomson would convey the property to Mrs. Hanson if not previously sold with a proviso that if the payment and conveyance should be made before May 1st 1863, Thomson might retain the property until that time at a rent of $2000. The agreement wa-s dated October 10th 1859, “ being the same day and time when said indenture of May 31st 1865 was delivered to the said John Ev Thomson.”</p> <p>It was further averred that Thomson had been in possession of ■ the property since the date of the agreement. On the 20th of > May 1864, Mrs. Hanson had in writing demanded possession of the property on payment of the amount due, which she was ready to make, and asked from Thomson a statement of the account and had received no reply from him, &e.</p> <p>Thomson by his answer averred that the deed of May 31st 1858 was executed by Hanson and wife, in pursuance of an agreement for an absolute sale and conveyance of the property to him, in payment of Hanson’s indebtedness to him, and other money and property which he agreed to pay and transfer. He' had refused the deed when tendered because he was on his way to the railroad train on a journey, and had not time to examine it. He denied that the negotiation had failed; he had performed his part of it and was entitled to the delivery of the deed which was evaded and postponed by Hanson; further conditions were sought to be added with which he finally was compelled to comply.</p> <p>He admitted that the deed and agreement were delivered at the same time. He denied that there was any other plan of securing him, proposed; and averred that the conveyance was and was intended to be, a complete and absolute sale for a consideration greater than the value of the property. He denied any settlement of accounts with Hanson, or that it had been agreed to substitute a conveyance with a written defeasance for a mortgage; he averred that he had been entitled to a delivery of the deed since May 31st 1858, but had been constantly deceived by Hanson, who eventually proposed to deliver the deed, if Thomson would agree to reconvey the property at the cost at any time before May 1st 1863; he, Thomson, so agreed, if he should not have previously sold the property, and he himself, before signing the agreement, inserted in it the words “ if not previously sold,” intending not to limit his absolute ownership and power of disposing of the property.</p> <p>The whole case was referred to a master, who reported that there had been before him no evidence in relation to the deed and agreement except the papers themselves; that they formed one transaction and together were a mortgage to Thomson to secure money loaned by him, and that the devisees of Mrs. Hanson were entitled to a reconveyance of the property upon paying the amount due to Thomson.</p> <p>The agreement was as follows:—</p> <p>“ Agreement made and entered into by and between William R. Hanson of the one part, and John E. Thomson of the other part, both of Philadelphia.</p> <p>“ Whereas, William R. Hanson and Hannah A. his wife, by indenture dated the 31st day of May, A. D. 1858, granted and conveyed to the undersigned John E. Thomson, in fee, the messuage, &c., * * * subject to a mortgage of seven thousand five hundred dollars; in consideration whereof, the said John E. Thomson hath paid and given cash and other value to the amount of twenty-one thousand and thirty dollars and seventy-five cents, and hath agreed and doth agree to pay to D. S. Brown & Co., within twelve months from this date, three thousand dollars in compromise and settlement of a claim of said D. S. Brown & Co. against said William R. Hanson and his brother, the late Albert E. Hanson, provided the same can be effected.</p> <p>“ Now it is hereby agreed and understood by and between the said John -E. Thomson and William R. Hanson, that if the said William R. Hanson and wife, or either of them, their or either of their heirs, executors or administrators, will pay to Said John E. Thomson, his executors or administrators, the sum of twenty-four thousand and thirty dollars and seventy-five cents, on or before the 1st day of May 1863, if not previously sold; that then he, the said John E. Thomson, shall grant and convey said messuage ^and lot to said Hannah A. Hanson in fee, or to whomsoever she, in writing, may direct. Provided, however, that if said money be paid, and said messuage and lot be conveyed as aforesaid, before the said 1st day of May 1863, the said John E. Thomson may have and retain the use and occupancy of said messuage and lot until said 1st day of May 1863, as a tenant at or under a yearly rent of two thousand dollars, payable annually, to the said Hannah A. Hanson, her heirs or assigns, to be computed from and after the date of such reconveyance; which premises are to be given up to said Hannah Ann Hanson, her heirs or assigns, on said expiration of such tenancy as aforesaid, in like good order and condition as when received, reasonable wear and tear and casualties by fire only excepted. Witness our hands and seals this 10th day of October 1859, being the same day and time when the said indenture of May 31st 1858 was delivered to the said John E. Thomson.</p> <p>J. Edgar Thomson, [l. s.]</p> <p>Wm. R. Hanson, [l. s.]”</p> <p>On exceptions to the report the court at Nisi Prius (Read, J.) said: — “ I have carefully considered the master’s report in this case and the exceptions to it, and have duly weighed the arguments on both sides; and being of opinion that the positions of the master are correct, the exceptions are dismissed, the master’s report is confirmed,” &c.</p> <p>Thomson appealed to the court in banc, and assigned the decree of confirmation for error.</p> <p>The foregoing, with the opinion of the Supreme Court, will indicate the questions decided in this case.</p>

222, to January Term 1871. On the 1st of May 1869, an action of assumpsit between Harman Yerkes, plaintiff, and John Wanamaker, defendant, was commenced in the District Court of Philadelphia.

229, to January Term 1871. This was an amicable action between John C. Cresson, Adam Everly, George M. Troutman and Albert S. Letchworth, trustees under the will of Adam Everly, deceased, plaintiffs, and James B. Ferree, defendant.

<p>Error to the District Court of Philadelphia: No. 231, to January Term 1871.</p> <p>This was an action of assumpsit brought March 31st 1869, by Anne Smith, administratrix, &c., of Jerome Smith, deceased, against Winthrop Cunningham, William T. Cunningham and Graham P. Cunningham, trading as W. Cunningham & Sons.</p> <p>Jerome Smith having been in his lifetime connected in business with the defendants, effected an insurance on his life with the 'Connecticut Life Insurance Company for $5000 and assigned the policy No. 88,435 to the defendants; after his death they collected the amount of the insurance. The suit was brought by the plaintiff to recover what had been received by the defendants on the policy.</p> <p>The question was whether the assignment of the policy to the ■defendants was absolute or as collateral security.</p> <p>The case was tried before Thayer, J., October 31st 1870.</p> <p>The plaintiff gave in evidence, her letters of administration on the estate of Jerome Smith, deceased, granted March 15th 1869, also articles of agreement dated September 1st 1868 between the plaintiff of the first part and W. A. McCann and Jerome Smith, trading as W. A. McCann & Co., of the second part, reciting that the parties of the second part were about to establish themselves in business in Vera Cruz, &c., and agreeing that the two parties should purchase and consign goods to each other from the United States, and Mexico and Central America respectively, and divide the profits; — the party of the first part to furnish the other party with cash and letters of credit, &c. Also policy of insurance No. 88,435, dated September 19th 1868, issued by the Connecticut Life Insurance Company to Jerome Smith for insurance on his life for $5000, endorsed thereon, assignment by Jerome Smith as follows:—</p> <p>“ Philadelphia, September 19th 1868.</p> <p>For value received, the receipt of which is acknowledged, I hereby assign, transfer and set over absolutely unto W. Cunningham & Sons and assigns, policy No. 88,435, to which this is annexed, issued on my life by the Connecticut Mutual Life Insurance Company of Hartford, Connecticut, and any money which may at any time hereafter come to be payable by reason thereof, and all and singular the remedies in law, equity or otherwise for the recovery thereof.”</p> <p>Also endorsed, receipt March 13th 1869 by defendants for $5000, less $1.42 premium.</p> <p>Also, policy of insurance from same company, dated September 12th 1868, countersigned by W. H. Tilden, agent, September 19th 1868, on life of Jerome Smith for $5000, payable to Mrs. Annie Smith with receipt, Annie W. Smith, dated March 13th 1869, endorsed thereon for $5000, less $1.50 premium due.</p> <p>Also receipt of J. B. Gest, defendants’ attorney, viz.:</p> <p>“Received March 5th 1869, of Mrs. Jerome Smith, her draft upon the Connecticut Mutual Life Insurance Company of Hartford, Connecticut, per Walter H. Tilden, Esq., its agent in Philadelphia, of this date, to our order for $523.75, payable upon settlement of the policy of insurance on the life of her late husband, standing in her name, such amount when paid to be in full receipt and acquittance of premium paid by us September 17th 1868, on said policy, viz.: $113.75, and also $410 advanced by us to her, as follows,” &c. (stating specific payments).</p> <p>Mrs. Smith, the plaintiff, who was the widow of the decedent, testified that her husband sailed from Philadelphia for Havana, September 17th 1868; on the 10th of October, W. T. Cunningham called on her, and asked her for the policy which the decedent had taken out; he said he had received a letter from Gonzales Poey at Havana, informing him of the decedent’s death, on the 2d, of yellow fever; she said that at an interview shortly afterwards “ he told me that the policy they had taken out to secure them against losses was lost, but that mine were all right. * * * He said they had lost their policy, and they did not know what they could do. They had failed, he said, to pay the premium when they were called upon, or something to that effect. He said he intended to publish the company in every state in the Union, because they had failed to pay the money.”</p> <p>H. W. Smith, a son of the plaintiff and stepson of decedent, testified as to his mother’s first interview with Cunningham substantially as she did; he also testified: * * * “She wanted to go on; he told her she could not go; that she had plenty of money to live on, and they would not see her want for anything; he left some money for mother at that time; he laid it on the table; I don’t know how much; on the following Sunday I saw him there again; he then told mother that the policy they had taken out was lost on account of non-payment of the premium, but that mother’s policies were all right; they had neglected to send the check for the premium around; he said that they had lost the policy that they expected would cover all the expenses, because they had neglected to send a check to Mr. Tilden; mother said she would have the body brought on at any expense; I went into the employ of the defendants November 9th; while in their employ I asked several times for the policies, at my mother’s instance; I never got them, and they always gave excuses — said that Mr. Gest had them, and they forgot to get them ; * * * Cunningham said mother’s policies were all right, but the one taken out to secure them was lost.”</p> <p>The plaintiff offered in evidence the deposition of Gonzales Poey, also a letter from witness to defendants, dated October 2d, and letter from defendants to witness, dated October 5th 1868, both referred to in deposition.</p> <p>The defendants objected to the offers; they were admitted and several bills of exception sealed.</p> <p>The witness Poey, proved the death of Smith at Havana of yellow fever on the 2d of October, and that he telegraphed to the defendants on the 3d of October, in the morning; he wrote to defendants by steamer on the 3d; he also informed Mr. Neilson, of Havana, of Smith’s death, and saw his effects sealed up by the American consul at Havana; the body was embalmed by the consul and witness, under directions, by telegraph, from the defendants.</p> <p>The letter from witness to defendants informed them of Smith’s death ; that his effects were in the hands of the American consul; that he had $760.55 in money; that the consul would pay all expenses, &c. The letter from defendant to witness acknowledged the receipt of the telegram from witness, stating it was paid ; saying they had sent a telegram directing the embalming of the body; that the money was defendants’; directed witness to save expenses. In the letter the defendants said they could not get permission from the health officer to land the body, and had ordered Mr. Neilson to bury the body without embalming ; that in consequence of the destitute condition of the family of the deceased, they “ were anxious to cover all possible expenses, and thereby assist them as much as we can; we want all expenses saved that can be on account of the wife and family.”</p> <p>The plaintiff gave in evidence an account presented by the defendants to her for advances to the decedent, premium on life-policy, postage, half expenses of returning body, &c., amounting in all to $1431.39.</p> <p>Winthrop R. Cunningham testified that he was present at several interviews between Smith and the defendants at their office, shortly before Smith started for Vera Cruz. “William T. Cunningham suggested to him, and to the firm, that his life should be insured. This was agreed upon, and Smith expressed himself willing it should be done to any amount for the benefit of W. Cunningham & Sons. I am now speaking of several conversations. I do know that in the course of one conversation W. T. Cunningham said distinctly to Jerome Smith that he wanted it clearly understood that on any insurance that he effected for the firm, that if he died, we made the insurance, if he didn’t we lost the premium. I remember those words; Jerome Smith fully assented to this. And William T. Cunningham further suggested that he should insure his life for the benefit of his wife and family; Jerome Smith replied that he had no money. William T. Cunningham (that is the firm) offered to furnish the money, and did so. Jerome Smith left to go to the office of Walter H. Tilden, the agent of the Connecticut Mutual Life Insurance Company, to make application and he examined. I know the policies were issued, and I saw the assignment. I saw the policies and both the assignments — one was to W. Cunningham & Sons, and the other assignment was to Mrs. Annie Smith, wife of Jerome Smith. I know that W. Cunningham & Sons paid the premiums on both policies. When the subject of insurance was introduced Jerome Smith mentioned the Continental Insurance Company, but that company was strange to W. Cunningham & Sons, who had their insurances largely in the Connecticut Mutual, and they recommended that company. The firm agreed to place $5000 on his life for the benefit of his wife. The amount of W. Cunningham & Sons’ policy was left entirely to them, Jerome Smith signing the assignment to them in blank as to the amount of the policy; they were to decide as to the amount at their convenience ; the question was whether it was to be five, or ten, or fifteen thousand dollars. * * * It was intended to guard against any possible loss in case of his death, although it was clearly looked upon and intended as an investment. * * *</p> <p>“It was clearly understood and agreed upon between Mr. Smith and W. Cunningham & Sons that it was to be solely for the benefit of W. Cunningham & Sons, free from any claim of any kind. Mr. Smith was asked if he was willing that his life should be so insured, and he expressed himself as being perfectly willing without reserve. I know from what I heard, that irrespective of this policy Mr. Smith was to refund to W. Cunningham & Sons any private advances, and the money furnished him was to be invested in merchandise for benefit of McCann & Smith and W. Cunningham & Sons.”</p> <p>Gr. P. Morgan, a book-keeper of defendants’, testified “ that a few days before Smith sailed, Smith in answer to the inquiry by W. Cunningham, whether he had made provision for his family, said he had, in the Continental Insurance Company; William Cunningham asked him if that was all he would like to have; he said he would like to have more but couldn’t afford it; William Cunningham said if he wanted more the firm would advance money to pay the premium; he seemed thankful; an application was made to the Connecticut Company and a policy was taken out for his wife; there was then a further conversation about a policy to be taken out for the benefit of the firm, and as to whether there would be any difficulty in their taking out a policy which would secure them the amount of it in case of his death, whether they had any interest or not; Mr. Smith said they could take out a policy for whatever amount they liked, if they would pay the premium ; he then went to the Connecticut Mutual Insurance Company’s office and signed an application in blank, and also an assignment; he told me he had done so; Mr. W. Cunningham said it was understood that they were to recover the money whether Smith was indebted to them or not, that it was an investment on their part; * * * it was understood that this policy had nothing to do with their advances to Mr. Smith, or to the business in Mexico ; I .heard Mr. Cunningham say this to Mr. Smith. The policy had nothing to do with the advances to Jerome Smith, or the risks of the business in Mexico; it was as I said an investment on Mr. Smith’s life; there was no business risks spoken of; it was outside of all these matters; these checks were filled up by me, and were given for premiums on the two policies in the Connecticut Mutual.”</p> <p>Walter H. Tilden testified: “As agent for the Connecticut Mutual Life Insurance Company I issued these policies. * * * I witnessed the assignment of this policy to defendants. Jerome Smith said it was to be an absolute and unconditional assignment, and it was so drawn by me; it was not recorded; the assignment specifies no amount. The policy was made out on its date, September 19th 1868. Our policies are not valid until countersigned by me as the local agent. I countersign them when delivered. These policies were countersigned the same day. The last policy was received about a week afterwards. They were dated even, so as to secure the assignment. The assignment was in blank, only to be issued in ease the policy was issued. It was signed September 15th 1868, at the time he made the application.”</p> <p>There was. some contrariety of evidence whether the premiums had been paid by defendants to the insurance company before or after the death of Smith.</p> <p>The plaintiff’s 5th point which was affirmed was:</p> <p>“ If the jury find from the evidence that the policy in question was assigned to defendants to secure them from loss for moneys by them advanced or to be advanced to Jerome Smith or McCann & Co., or from loss on business done with said firm, then the plaintiff is entitled to recover from defendants the amount received from the insurance company less such moneys so advanced and such losses; and that the defendants must show the amounts of such advances or losses.”</p> <p>The defendants submitted these points:—</p> <p>1. The assignment of the policy by Jerome Smith in his lifetime to the defendants, vested in the defendants a right to the money to be paid at his death by reason of the policy, and the verdict should be for the defendants.</p> <p>2. If the jury believe from the evidence that the assignment of the policy of insurance by Jerome Smith to the defendants was not made in fraud of creditors, the verdict should be for the defendants.</p> <p>3. If the jury believe from the evidence that the defendants with their own moneys paid the premium for the policy, then they are entitled to the benefit of the same, and the verdict should be for the defendants.</p> <p>6. A merely voluntary assignment by a party, of a policy of insurance on his own life, is good against his executors or administrators, and if the jury find from the evidence that Jerome Smith did assign the policy in question, the verdict must be for ,he defendants.</p> <p>9. Whether the payment of the premium by defendants to the insurance company was after or before the death of Jerome Smith, is not material, except as between the company and the defendants ; and if the company, notwithstanding, paid the amount insured to the defendants, the fact, if it be so, that the premium was not previously paid, cannot enure to the benefit of the plaintiff.</p> <p>10. On all the evidence in the case, the verdict of the jury should be for the defendants.</p> <p>In answer to the points the court said:—</p> <p>“ As to the 9th point, I decline to say that it is a totally immaterial circumstance in the consideration of the case, though it does not appear to me to be very material, but I leave it with all the facts to you. I will say, however, that in point of law it is not material whether the premium was paid before or after the death.</p> <p>“ The other points of the defendants I decline to- instruct you as requested.’’</p> <p>The court also charged :—</p> <p>“ If the jury should find that the assignment of September 19th 1868, although on its face an absolute assignment, was in truth and in fact, and by the agreement and understanding of the parties intended to be only an assignment intended to secure the defendants their advance and expenses, or to secure other claims which they might have against William A. McCann & Co.; in other words, that they were only to acquire a limited interest in the policy instead of the absolute ownership, then the defendants, out of the amount which they collected from the company on the policy, can retain only such sum as represents, and is equal to their advances or expenses or other just claims against William A. McCann & Co., and the remainder belongs to the plaintiff, and she is entitled to a verdict for it. And if the jury take this view of the evidence, then they have to allow the defendants only such advances, expenses or other just claims as they have proved. If the jury take that view, you will allow the defendants what would represent their advances and just claims against McCann & Co., up to the time of Jerome Smith’s death, and no longer.” * * *</p> <p>The verdict was for the plaintiff for $3700.</p> <p>The defendants took a writ of error.</p> <p>They assigned for error:</p> <p>I, 2, 3. The admission of plaintiff’s offers of evidence which were objected to.</p> <p>4. Affirming plaintiff’s 5th point.</p> <p>5-9. Refusing to affirm the defendants’ 1st, 2d, 3d, 6th and 10th points.</p> <p>10. The answer to defendants’ 9th point.</p> <p>11. The portion of the charge above quoted.</p>

<p>1. Permitting a witness to be contradicted in matters as to which his attention had not been called in his examination, is within the discretion of the court trying the case.</p> <p>2. An abuse of the discretion would be corrected by a court of error.</p> <p>3. When the witnesses are all present and the contradiction tends seriously to impair the credibility of the witness or affect his character ; he should have an opportunity of explanation or denial.</p> <p>4. Circumstances in this case justifying contradictory evidence, without having called witness’s attention to the matter.</p> <p>5. When an owner has done all in his power to erect a safe structure, he is not liable to others for its occult defects, if he had not knowledge of them nor reason to believe their existence.</p>

<p>1. An Act of Assembly provided that no councilman, &c., of any municipality, &c., should at the same time be surety for a treasurer, &c., and for violating this provision he should forfeit his membership in such municipality, be guilty of misdemeanor, and on conviction be fined. Another act provided that the councils of Philadelphia should “ in like manner as the legislature, judge and determine the qualification of their members.” Members of council were sureties for a city treasurer. Held, that this was a forfeiture of their office as counoilmen, and that the courts have jurisdiction to inquire of the forfeiture in such case.</p> <p>2. The councils are not a legislature; they do not make laws; their members are not legislators with their constitutional privileges and immunities.</p> <p>3. The forfeiture arose from the unlawful relation of surety and councilman ; not upon conviction of the misdemeanor.</p> <p>4. Quo warranto is a proceeding at law, and the fact of the defendant's right to office is triable by a jury; conviction is unnecessary to give jurisdiction.</p> <p>5. The council may refuse a seat to a member who is surety, &e., but their neglect to make the inquiry is not a bar to legal proceedings to declare a forfeiture.</p> <p>6. The offence continues as long as the defendant is surety and councilman at the same time.</p> <p>7. The power of councils to impeach, try and remove a member for the misdemeanor, is not incompatible with the judicial power to oust an usurping officer or one holding over.</p> <p>8. Act of March 21st 1806, not applicable to this case. ></p>

<p>Error to the District Court of Philadelphia: of January Term 1871, No. 287.</p> <p>On the 5th of March 1870, Alonzo Gordon brought an action of assumpsit against John B. Champion on the following check, of which the plaintiff was endorsee and holder.</p> <p>“ Philadelphia, November 22d 1869.</p> <p>“The Commonwealth National Bank pay to H. Yerkes, or-order, one hundred and fifty (December 3d 1869) dollars.</p> <p>“ John B. Champion.”</p> <p>The check was protested December 3d 1869.</p> <p>On the trial, October 19th 1870, the plaintiff offered the cheek and protest in evidence. The offer was objected to by the defendant, on the ground that the paper was an inland bill of exchange, had not been presented at maturity, and had been prematurely protested. The offer was admitted, and the court instructed the jury to find for the plaintiff; reserving the question whether the paper was a bill entitled to grace.</p> <p>The jury found for the plaintiff for $160.62.</p> <p>The court afterwards entered judgment on the verdict for the plaintiff on the reserved question.</p> <p>This was assigned for error by the defendant, who removed the record to the Supreme Court</p>

<p>1. The plaintiff was employed as draftsman in the defendant’s locomotive works; a carpenter employed in “jobbing” for defendant in any part of the works was, by the direction of the defendant, superintending the excavation of a cellar under the building, employing and paying hands, &e. He had a large pile of dirt thrown on the public foot-walk; the plaintiff in leaving the house in the dark, after ceasing his day’s work, fell over the dirt and was injured. Held, that the plaintiff and carpenters were not fellow-servants in the same common employment, so as to relieve the defendants from liability from the carpenter’s negligence.</p> <p>2. Servants are engaged in a common employment when each by ordinary sagacity might foresee that the employment.may expose him to risk from the other’s negligence.</p> <p>3. The plaintiff having ceased work for the day and left the shop, the relation of master and servant had ceased when the injury occurred; he was as any other citizen.</p>

<p>Error to the District Court of Philadelphia: No. 264, to January Term 1871.</p> <p>This was an action of trover, brought September 16th 1868, by Henry K. Bennett against George F. Work and Charles H. Graham, trading as Work, Graham & Co.</p> <p>The declaration was for the conversion of “ Six bonds of the Fairmount Park and Delaware River Passenger Railway Company, for $500 each, and 550 shares of the capital stock of the German-town Passenger Railway Company, of great value, to wit, of the value of $100,000.” Upon the trial of the case, after the testimony was closed, the plaintiff, by leave of the court, amended his narr., by adding after the figures “$100,000,” the words “and a certificate therefor.” The defendants pleaded “Not guilty.”</p> <p>The case arose upon transactions between the defendants, who were brokers, and the plaintiff, in which, as was alleged, the defendants bought for the plaintiff a number of shares of stock in the Hestonville Passenger Railway, and the stock and bonds for which this suit was brought were taken by the defendants from the plaintiffs as collateral security for its payment. The defendants pledged the securities for their' own notes, and afterwards failed, the plaintiff being largely indebted to them. When the defendants’ notes matured the stock and bonds were sold by those holding them to pay the notes, and the plaintiff, after demanding them, brought this suit. The principal question in the case was, whether in this action of trover the debt of the plaintiff could be recouped from the damages; there was also a question as to the measure of damages.</p> <p>The plaintiff testified that about the closeupf the year 1865, the defendants, by his direction, bought for him 500 shares of the Hestonville Railway stock, at $38 per share, which the defendants agreed “to carry” for him. About the same time, at the defendants’ suggestion, he purchased an interest in the Girard Avenue Railway Company, in anticipation that it would be consolidated with the Germantown Passenger Railway Company. Shortly afterwards, in consummating this arrangement (the details need not be stated), the plaintiff became entitled to an interest to the extent of one-seventeenth in the Fairmount Park and Delaware River Passenger Railway; as part of this he was entitled to 550 shares in the Germantown Passenger Railway, and $5500 in bonds of the Girard Avenue Passenger Railway. In the transaction he got eleven bonds of $500 each of the Fairmount Park and Delaware River Railway Company; he loaned ten of these bonds to Work, Graham & Co., and received four of them back. In January 1866, the defendants purchased for him 500 shares more of the Hestonville Railway Company; the price he did not then ascertain.</p> <p>He gave to the defendants the following agreement:—</p> <p>“ I agree to transfer to G. F. Work my interest in Fairmount and Girard Avenue and Germantown Passenger Railway Company to hold as collateral for margin on Hestonville Railroad stock, which he is carrying for me. H. K. Bennett.</p> <p>“Philadelphia, January 2d 1866.”</p> <p>Witness further said he loaned the bonds to the defendants as he would loan anything else.</p> <p>For the defendants, Work testified that the Hestonville Railway stock had been purchased by an association, of which plaintiff was one, in expectation of its rise; that they bought 500 shares for plaintiff under his direction; they paid for them in January 1866; defendants agreed to carry plaintiff’s stock; he agreed to take 500 shares more; the object of the first purchase was to keep the stock off the market; as to the other 500 he was to have an interest, not to exceed 500 shares, in “the pool;” they gave him notice that he would have to get some one to carry his stock, as those from whom they had borrowed money on the stock would sell it.</p> <p>On the 2d of January -defendants asked plaintiff for more margin, and he then assigned the bonds; the defendants failed about May 14th 1866; the defendants’ firm would not have failed if the plaintiff had taken his stock. After their failure, “the board of brokers fixed the amounts of settlements of Hestonville at $21.50;” they credited the plaintiff with his stock at that rate; the plaintiff still owed them about $8000; the stock was in the name of the defendants on the books of the company; the bonds also were pledged, and the money realized used by the firm. The defendants were treasurers, and were carrying the association stock and used their own funds; the association was all the time indebted to them.</p> <p>There was a good deal of evidence as to the transactions, the price of stock and bonds at different times before the suit.</p> <p>The defendants points were:—</p> <p>1. By the transfer of plaintiff to G. E. Work, dated January 2d 1866, plaintiff assigned the bonds of the Eairmount and Delaware River Passenger Railway Company and the 550 shares of the Germantown Passenger Railway Company to G. E. Work.</p> <p>2. Under said transfer G. F. Work was authorized to have the 550 shares issued to him and the bonds delivered to him.</p> <p>3. Under said transfer G. E. Work had authority to sell at private sale the interests assigned to him as collateral security after demand by Work of the amount due by plaintiff, for which the interests had been pledged and his refusal to pay the money.</p> <p>4. The plaintiff cannot recover in this action for the conversion of 550 shares of stock in the Germantown Passenger Railway Company described in the plaintiff’s narr.</p> <p>The court (Thayer, J.) charged: * * * “ The general outlines of the facts of the case seem to be these:—</p> <p>“ The defendants, as brokers, purchased for the plaintiff 500 shares of stock of the Hestonville Passenger Railway Company. They paid for the stock; they agreed that they would carry it for him — that is, trust him to repay them. The defendants became indebted to plaintiff for the price-</p> <p>“ Afterward, the Girard Avenue Passenger Railroad consolidated with the Germantown Passenger Railroad Company. The plaintiff agreed to purchase an interest of one-fourteenth, afterwards reduced to one-seventeenth, in the Girard Avenue Passenger Railroad Company.</p> <p>“ The plaintiff became entitled, by his purchase, to 550shares of stock of the Germantown Passenger Railroad Company, and also to $5500 of bonds. Six of these bonds, amounting to $3000, were put into the hands of the defendants, and, with the 550 shares of stock, constitute the property for which suit is brought. For the unlawful appropriation, by the defendants, of this property, this suit is brought. * * *</p> <p>“ How the stocks came is clear. It is plain, that the stock was received as collateral security against loss, by the defendants, in their purchase of Hestonville stock for the plaintiff.</p> <p>“ How the bonds came is not so clear. Plaintiff says he loaned them to the defendants. Work says that when Hestonville stock declined, being apprehensive of loss, and regarding the transfer by Bennett of his interest to include these bonds, he called on plaintiff to deliver them to him, and that the plaintiff, acquiescing in the justice of his demand, delivered them to him. The assignment undoubtedly carried the stock; it was indisputably transferred by plaintiff to defendant.</p> <p>“ Whether the bonds were also, I leave as a question of fact. I instruct you that the stock passed, and leave the other to you as a question of fact.</p> <p>“ I am bound to instruct you that, by the assignment, the defendants acquired a special property in the property mentioned in it.</p> <p>“ The nature of this special property was this. They had the right to hold the property so assigned, until the debt arising out of the Hestonville transaction was paid. If the debt was not paid, they had the right to give notice to Bennett, that, if the debt was not paid by a certain day, they would sell the property pledged, at public sale. The property pledged could not be sold without notice to the plaintiff. * * * [I am bound to say, as matter of law, that there is no evidence of any such notice. * * * In fact, the securities were not sold. Work says thatthey were pledged by him with their creditors, to secure their own debts, 'and were sold by their creditors. This was an unlawful conversion of the securities.] * * * [I do not see how they may escape responsibility in this action. If Bennett still owes them money, on account of the Hestonville transaction, they may bring suit for the amount. But it is no answer to this action for their unlawful appropriation of the property of the plaintiff, to say that he is indebted to them in another transaction.]”</p> <p>He answered the points as follows:—</p> <p>“ 2. Affirmed ; but, if they were issued to him in his own name, he was a trustee for the real owner who had paid for them, and the defendants had only the right to retain them as a security; he could not pledge them to another.”</p> <p>4. Refused.</p> <p>“ [Finally, in determining the amount of damages, I instruct you to take the highest value which the stocks and bonds attained between the time of the conversion and the bringing of this suit.]” The verdict was for the plaintiff for $20,850.</p> <p>On a writ of error to the Supreme Court by the defendants, they assigned for error :</p> <p>1, 2, 6. The parts of the charge in brackets.</p> <p>4, 5. The answers to their 2d and 4th points.</p>

<p>1. Under Act of April 27th 1855, g 8 (mortgage of leaseholds), recording such mortgage with a copy of lease and referring to the lease recorded with a former mortgage, held to be a substantial compliance with the act.</p> <p>2. The mortgage was by the lessee of his term of years under a lease of a mill and the machinery mentioned in a schedule attached; after the execution of the mortgage more machinery was put into the mill. Held, that the latter machinery passed by a sale under the mortgage.</p> <p>3. After the recording of the mortgage, the lease and machinery were sold under fi. fa.’s against the lessee, the purchaser took possession, and assigned them; subsequently the lease and machinery were sold under the mortgage, the assignee of the first purchaser not being made a party to the scire facias or having notice of the judgment on it. In replevin by the purchaser under the mortgage against the assignee of the first purchaser, Held, that the latter having notice of the mortgage by the record, and being precluded from no defence against its validity in this suit, want of notice of the scire facias, &c., was immaterial.</p> <p>4. The defendant’s title being adverse to the mortgage, its validity depended on the validity of the mortgage.</p> <p>5. As between judgments entered on the same day there is no priority; but as between a judgment and deed priority depends on proof.</p> <p>6. The record in the mortgage-book is evidence of a mortgage.</p>

<p>Error to the District Court of Philadelphia: No. 318, to January Term 1871.</p> <p>To December Term 1869 of the, District Court, a scire facias sur mortgage was issued at the suit of Jacob Scheetz and Christianna his wife in her right, against Elias Cleaver and Anna M. his wife.</p> <p>The mortgage was dated February 22d 1867, given by Elias Cleaver and Anna M. his wife, to Christianna Scheetz, to secure the payment of $1600 in one year with interest.</p> <p>The defendant put in the plea of set-off.</p> <p>It appeared'upon the trial that Jacob' Scheetz and his wife were living separate and apart from each other, the husband having deserted the wife. Under these circumstances Mrs. Scheetz went to board with the defendants, the mortgagors. It further appeared that Jacob Scheetz, the husband of Mrs. Scheetz, was residing in Philadelphia, and engaged in business" for himself as an apothecary, at the corner of Fifth and Race streets. The question of the trial was, whether the defendants could set off the bill for the board of Mrs. Scheetz against the claim upon the mortgage, which was the property’ of Mrs. Scheetz. There was nó evidence that Jacob Scheetz, the husband, had been applied to for payment of the debt, or that any judgment had been obtained, or execution issued against him.</p> <p>The defendants in support of their set-off relied upon the 2d section of the Act of 4th of May 1855, Pamph. L. 430,1 Bright. Purd. 692, pi. 55, which enacts, “ that whensoever any husband from drunkenness, profligacy or other cause, shall neglect or refuse to provide for his wife, or shall desert her, she shall have all the rights and privileges secured to a feme sole trader under the Act of the 22d of February 1718, entitled ‘ An act concerning feme sole traders,’ and be subject as therein provided, and her property, however acquired, shall be subject to her free and absolute disposal during life, or by will without any liability to be interfered with or obtained by such husband, and in case of her intestacy shall go to her next of kin, as if he were previously dead:” 1 Smith’s Laws 99, 1 Bright. Purd. 692, pi. 1.</p> <p>The court (Thayer, J.) instructed the jury that the evidence of the defendants did not make out a defence to the action, and that they should find a verdict for the plaintiff for the full amount of the mortgage, with interest from February 22d 1867.</p> <p>The verdict was for the plaintiff for $1837.50.</p> <p>The defendants took a writ of error, and assigned for error that “ the court erred in instructing the jury that the evidence of the defendants did not make out a defence to the action.”</p>

<p>Appeal from the decree of the Court of Common Pleas: In Equity: No. 129, to July Term 1871.</p> <p>This case arose on the will of Cadwalader Evans, who died in 1841. The will was dated March 3d 1838, and proved November 15th 1841; it is as follows:—</p> <p>* * * “ I give, &c., to my dear wife, to hold so long as she shall continue my widow, the ho'use in which I now reside, situate on the north side of Mulberry street, &c., in Philadelphia, together with the lot of ground upon which the same is erected, containing, &e., and also all my household and kitchen furniture. And I do also give and bequeath unto her, two thousand dollars a year, so long as she shall continue my widow, out of the rents and profits of my real estate, or personal, or both, as she may at .any time, within one year from the time of my decease, designate, elect and choose, the same to be in full of dower. And from and after the determination of my widow’s estate in the premises, I give, &c., the said house, &e., with the household and kitchen furniture, above mentioned, to my daughters Julianna, Margaret and Harriet; or to such of them as may be and remain unmarried, to hold to them respectively so long as they, or any of them may remain unmarried. And after the determination of my said daughters’ interest in the premises, the said house and lot of ■ground and the household and kitchen furniture shall be sold and the net proceeds thereof shall be equally divided amongst such of my children as may be then living, and the lawful issue of such as may be then deceased; the issue to take amongst them such share as their parent would have taken were he or she living. And I do hereby authorize my executors, or the survivor of them, to sell and convey in fee simple, the said house and lot of ground as soon after the determination of my daughters’ estate in the premises as may conveniently be done, and I do also authorize and empower them to sell and convey in fee simple my lands, &c., in Chester county and in Berks county, at such time or times as they may think favorable, and the moneys arising from all these sales shall be divided, and pass to, as is hereinafter directed, respecting my personal estate.</p> <p>“ And it is my will, that whatever real estate, ground-rents or personal property of any that shall be selected by my dear wife for the payment of the annuity hereinbefore bequeathed to her, shall be vested in the said trustees, and the rents, &c., thence arising, shall be paid to her as the same becomes due. And immediately after her decease, the real estate, as well as the personal, shall be divided amongst my sons and daughters, severally, in equal shares. But my daughters’ shares shall be vested in the said trustees, in the same manner, and for the same purposes as is herein directed with respect to their share of the residue of my personal estate.”</p> <p>He then directed the education of his minor children, to be paid for out of his estate, and a fund for that purpose to be set apart before dividing his personal estate.</p> <p>“ All the residue, &c., of my personal estate not hereinbefore disposed of, of whatever kind, shall be divided into eight equal parts;” one of these parts he gave to each of his five sons, “ and the three remaining parts I give and bequeath to my executors (whom I do hereby constitute trustees for the purposes mentioned in this my last will), and the survivors and survivor of them in trust, &c., that they will hold the said three equal shares for the sole use and benefit of my three daughters, Julianna, Margaret and Harriet, in equal parts during their lives, respectively, and will pay over to them respectively, the interest, &c., * * * and the receipts of my daughters respectively, whether they be sole or married, shall be a sufficient discharge for the same ; and it is also my will that my stocks of various kinds shall be divided (after setting aside those which shall be selected by my dear wife) amongst my five sons and the said trustees for the purposes above mentioned, and no part of what is vested in the said trustees shall be sold or disposed of by them without the consent of my wife or daughters respectively being first had in writing ; nor then, unless it be for the purpose of investing the proceeds in some other productive property, to be held in trust as aforesaid, for the benefit of my said wife and daughters respectively.” Loans, &c., which might be paid in, to be reinvested for the same uses.</p> <p>The testator then provided that his otherwise undisposed of real estate, situate in Philadelphia county, should, upon the arrival of his youngest child at the age of twenty-one years, be divided into eight equal parts by referees, to be chosen by his children, and that one of these parts should be given to each of his five sons.</p> <p>The remaining three parts he devised as follows:—</p> <p>“ And the three remaining parts I give, &c., to the trustees herein named, and the survivors and survivor of them, &c. But in special trust that they and the survivors and survivor of them, shall and will hold the said three parts for the sole use and benefit of my three daughters, Julianna, Margaret and Harriet, each one part in severalty. And it is further my will that either or all of the three parts hereby vested in trustees for the use or benefit of my said daughters may (by and with the consent of my said daughters respectively, first had in writing) be let for a term of years, or on ground-rent for ever; but may be redeemed at any time after the decease of the daughter to whom such part may have been allotted, but shall not be redeemed before her decease; such rents to be paid to the said trustees, or the survivor of them, in trust and special confidence that they will pay them, without delay, only to my daughters, respectively, whether they be sole or married, and whose receipts only shall be their discharge; and in further trust and confidence, that at, or immediately after the decease of either of my daughters they will convey all the rights and interests vested in them, in trust, for the use of such deceased daughter, to such person or persons as she by her last will and testament may direct, and in default of such will and testament, then to her lawful issue, in equal shares, and in default of such issue, then to her brothers and sisters, in equal shares, and to the lawful issue, if any there be any, of my children who may then be deceased ; such issue to take what their parent would have taken had he or she been living.”</p> <p>“And' to avoid all doubts which might arise, I do hereby declare that it is my intention that my said daughters respectively shall have full power and authority, whether they or either of them be sole or married, to dispose of by testament and last will, in such manner as they may think proper, all their respective shares of the estates, real and personal, hereby vested in the said trustees.”</p> <p>Harriet Y. Evans, a daughter, was a minor at her father’s death, not contemplating marriage.</p> <p>The youngest child arrived at age on the 2d of September 1842, and in 1843 partition of the real estate was made by referees in accordance with the will.</p> <p>Harriet V. Evans married Grouverneur M. Ogden, May 22d 1845.</p> <p>On the 11th of June 1866, Manlius' Gr. Evans was substituted trustee for Harriet in the place of the then surviving trustee.</p> <p>On the 18th of April 1871 Ogden and wife filed a bill in the Court of Common Pleas against Manlius Gr. Evans, setting out the foregoing facts, and also that the complainants had applied to the trustee to make to the said Harriet V. Ogden a transfer of the personal property, and a conveyance of the real estate held in trust for her, which they were informed and believe she is entitled to hold absolutely; and that the said trustee had refused to do this, except under the direction of the court, &c.</p> <p>The prayers were: An account of the personal property, the payment of the balance in the trustee’s hands, and a conveyance of the real estate in fee simple.</p> <p>The answer admitted the averments of the bill, alleged the trust to be a subsisting and valid one, and asked that the bill be dismissed with costs.</p> <p>The case was heard on bill and answer in the Court of Common Pleas.</p> <p>The court (Ludlow, J.) dismissed the bill.</p> <p>The plaintiffs appealed to the Supreme Court, and assigned the dismissal of their bill for error.</p>