Volume 72 — Pennsylvania State Reports

<p>Error to the Court of Common Pleas of Lancaster county: Of May Term 1872, No. 59.</p> <p>This was an action of assumpsit commenced May 14th 1870, by W. A. Wilson and John C. Gingrich, assignees in bankruptcy of John B. Gish, against The First National Bank of Mount Joy, to recover the sum of $1260, which was on deposit with defendant to the credit of John B. Gish, when he became bankrupt.</p> <p>The facts were undisputed and are these :—</p> <p>Shortly before March 28d 1869, John B. Gish -wrote to Andrew Gerber, the defendant’s cashier, inquiring whether the bank would discount for him a note for $6000, with the endorsement of John S. Gish.</p> <p>The cashier informed him by letter that the note would be discounted if he would let $1000 of the proceeds remain in the bank to be appropriated to the note when it became due at the end of sixty days; this letter was shown to John S. Gish. The note, dated March 23d 1869, was then drawn to John S. Gish as payee, endorsed by him, discounted by the defendant, and the proceeds, $6936, passed to the credit of John S. Gish. On the 26th of March, John S. Gish drew his check for $5936, in favor of John B. Gish; of this check he received all but $2500.32, which were , passed to his credit on the books of the bank. In pursuance of the arrangement with the bank in relation to discounting his note, he on the same day drew a check as follows:—</p> <p>“ Mount Joy, March 26th 1869.</p> <p>First National Bank of Mount Joy:</p> <p>Pay to Andrew Gerber, Cashier, on account of my note discounted in bank, or bearer, one thousand dollars.</p> <p>John B. Gish.”</p> <p>The check was delivered to the cashier, but was not charged to John B. Gish’s account, and still remained in the bank. On the 27th of March 1869, John B. Gish drew a cheek on the defendant in favor of Jacob Overholfcer or order for $260. Up to the 3d of April 1869, John B. Gish had drawn from the bank all the proceeds of the note except $1260. On that day he made an assignment for the benefit of his creditors to Philip Oldweiler. The check to Overholzer having become the property of Samuel Ely, was presented for payment on the 5th of April, and payment refused. On the 28th of April 1869, proceedings in bankruptcy were commenced against John B. Gish; on the 5th of May he was adjudged a bankrupt, and the plaintiffs appointed his assignees. John B. Gish was insolvent when the note was drawn.</p> <p>On the 7th of December 1871, on the application of John S, Gish and Samuel Ely, the court allowed them to intervene as defendants.</p> <p>The court, Hayes, J., charged:—</p> <p>* * * “ The bankrupt law is. essentially a law of equality ; a law of equal distribution of the bankrupt’s effects among all his creditors without preference to any. And any device or scheme to defeat such a distribution, within four months previous to the bankruptcy, is void.</p> <p>“[With respect to the arrangement proposed by Andrew Gerber, and agreed to by John B. Gish, to which John S. Gish was privy, as his son showed Mr. Gerber’s letter to him when ho endorsed the paper, I am of opinion that it was a violation of the law of the state, as well as the bankrupt law, and the Act of Congress relative to the National Banks; that it was in fraud of the law, and that John S. Gish would be precluded thereby from any preference as to the one thousand dollars; the bank does not claim it, and there is no evidence that John S. Gish has demanded it of the bank. We think this sum must be paid over to the assignees of John B. Gish under the bankrupt law, because .we are of opinion that the check of John B. Gish to Andrew Gerber, cashier, of the 26th of March 1869, was no appropriation of the $1000 to his father, John S. Gish, and that the said sum remained as a deposit of John B. Gish and his voluntary assignee up to the time of his bankruptcy.]</p> <p>“ [As to the $260, the check for that amount was not presented at the bank for payment until the 5th day of April, when it was refused. On the 3d of April, John B. Gish had made his voluntary assignment to Philip Oldweiler, when, as he said, he knew he was insolvent, and from the very small dividend which his creditors have received, it is manifest he was desperately insolvent. By that assignment all his property passed from him and amongst the rest these $260. His check, therefore, presented not until the 5th of April and then refused, cannot be regarded as an appropriation of this sum; and the consequence is this sum also remained still the property of John B. Gish until his assignment, and then vested in his assignee, and subsequently passed to the assignees in bankruptcy.]</p> <p>“ [Then, as there was no appropriation of these sums, they belong to the plaintiffs, who are the assignees in bankruptcy of John B. Gish, for the general benefit of all his creditors, equally and without preference, and the verdict of the jury should be for the plaintiffs for the whole amount.]”</p> <p>The verdict was for the plaintiffs for $1479.48. The defendants removed the record to the Supreme Court, and in three specifications assigned the charge as included in brackets for error.</p>

<p>1. Herr, a citizen of Pennsylvania, owning real estate there and in Maryland, made in Maryland an assignment for creditors to Barry of all his estate, with preferences; the next day being advised that it was void as to the Pennsylvania estate, he made an assignment there to Lewis, reciting the first; this was recorded immediately; the first was not recorded within thirty days. Lewis received the rents and sold the real estate in Pennsylvania: Held, that the deed to him passed nothing, and Barry was entitled to the balance in his hands.</p> <p>2. The Barry deed passed all Herr's real estate in Pennsylvania for the benefit of creditors without preferences.</p> <p>3. As to creditors both assignments were void; the land could be sold under judgments against Herr.</p> <p>4. The proceeds of sale in Lewis’s hands represented the real estate, and Barry claiming and receiving it validated the sale by Lewis.</p> <p>5. The money received by Barry from Lewis was to be distributed according to the laws of Pennsylvania.</p>

<p>Error to the Court of Common Pleas of York county: No. 7, to May Term 1872.</p> <p>On the 16th of May 1871, Zachariah W. Smyser petitioned the Court of Common Pleas of York county, setting out, that viewers appointed according to law, reported to the August Term 1857 of the Court of Quarter Sessions, that a bridge was necessary over Codorus creek, where it crosses King street in the borough of York, that the erection would cost more than the borough should bear; and that the grand jury, the Court of Quarter Sessions, and the county commissioners concurring in the report, it was at January sessions 1859, entered of record as a county bridge; that in June 1867, the county commissioners procured an estimate of the cost of the bridge and entered into a contract with Samuel Stouffer to construct it; that he commenced its construction, but was afterwards stopped lay the commissioners and the contract rescinded. The prayer was for a mandamus to the county commissioners to erect the bridge.</p> <p>The commissioners answered, admitting the proceedings as alleged in the petition under which the bridge was entered of record as a county bridge; they further answered, that fourteen years had elapsed since these proceedings, that the affairs of the county had materially changed, that there was a large indebtedness of the county not existing at the time the bridge was confirmed, for paying which all the money of the county provided for by the tax levies “ for a considerable time to come,” would be required; the commissioners should not be required to erect the bridge, when the circumstances at the time the bridge was authorized had changed; that the Act of June 18th 1836, § 36, required the commissioners at the time the bridge was authorized to erect it or show sufficient reason for not so doing; that no such cause was shown by those commissioners, and the erection of the bridge by the respondent should not be required, on account of the laches of the parties interested; that the respondent had made no provision in the county levies to pay for the erection of the bridge and ought not to be required to do so; that the county had no money to pay for the erection and had no authority to borrow money for the purpose.</p> <p>The petitioner demurred to the answer.</p> <p>On the 25th of March 1872, the court (Fisher, P. J.) decreed, that a peremptory mandamus issue against Peter Strickhouser, Lewis Strayer and Jacob Kohler, commissioners of York county, commanding them in their capacity of commissioners of York county to erect a good and sufficient bridge of wood, iron or stone across the Codorus creek in the borough of York, &c., where King street crosses said creek, for the convenience and use of the public travelling on foot, or on horseback, or with carriages, wagons or other vehicles drawn by horses or other beasts of burthen; and that the county of York pay the costs of this proceeding.</p> <p>The respondents took a writ of error and assigned for error: — •</p> <p>1. The decree commanding the erection of the bridge.</p> <p>2. The decree that the county of York should pay the costs.</p>

No. 19. Sarah Ann Weber, widow of George H. Weber, deceased, for herself and as next friend of the children of the deceased, brought an action on the case against the Pennsylvania Railroad Company for negligence in causing his death. The deceased was a baker living at Duncannon, in Perry county, and carried bread, &c., in a one-horse wagon to Marysville, about six miles east of Duncannon, for sale.

<p>Error to the Court of Common Pleas of Somerset county: No. 48, to May Term 1872.</p> <p>This was an action of ejectment for an undivided one-eighth of seven tracts of land, in Somerset county, brought January 11th 1869, by Walter Gwynn, and others, against Michael P. O’Hern and Sarah O’Hern. The action was brought to enforce the payment of the purchase-money of the premises. The only question appeared to be the amount of the purchase-money due.</p> <p>The case had been heard before arbitrators, and on appeal to the Court of Common Pleas, the trial commenced September 16th 1871, before Hall, P. J., and a jury.</p> <p>It then appears by the record as follows :—</p> <p>“ Same day the parties by paper filed agree that the court shall take the papers and evidence offered in the case to chambers, and after examination and hearing the counsel, shall determine all questions of law 'and fact arising in the case; the verdict shall then be entered by the clerk as the verdict of the jury now impannelled, and the court to file an opinion and the evidence in the case; 16th September 1871, points of counsel filed and notes of trial filed; and now, to wit: 29th December 1871, opinion of W. M. Hall, President Judge, filed, directing a verdict to be entered for the plaintiff for the land in dispute, to be released upon the payment, by the defendant, of the sum of $6244.86, with legal interest from the 16th of September 1871, and if the defendant shall fail to pay the same on or before the 16th day of September 1872, the court will then appoint a master to sell the defendant’s share or part of said land, to pay the debt, interest and" costs of this case, with the costs of such rule, and to pay over the excess, if any, to the defendant; the defendant to have credit on this verdict for the one-eighth of the net proceeds of rents accruing after the 1st of April 1871.”</p> <p>The court in their opinion found the facts in the case, and stated an account between the parties showing the amount due to the plaintiffs, as above stated, and in concluding the opinion said : “ So the case presents itself, virtually as a case in equity on bill and answer, yet leaving us without the aid that well drawn equity pleadings would afford. We have discharged the duty imposed upon us as best we might, according to equity as we view it; and are relieved in the consciousness that if we have erred we have put the case in shape to be fully reviewed by the Supreme Court. And to this end we now seal a bill of exceptions to both plaintiffs and defendant.”</p> <p>Gwynn took out a writ of error. He assigned for error, the refusal of the court to affirm the points submitted by the plaintiffs; the admission of evidence offered by the defendants, and objected to by the plaintiffs, and directing judgment "to be entered for too small an amount.</p>

<p>Error to the Court of Common Pleas of Franklin county: No. 72, to May Term 1872.</p> <p>This was a feigned issue under the Sheriffs’ Interpleader Act, framed July 17th 1871, between G. C. Cooper & Co., plaintiffs, and John Garman, defendant.</p> <p>John Garman, the defendant, had recovered a judgment against Moses Anderson for $1863.60 ; he issued execution on his judgment and under it the sheriff levied on a portable steam saw-mill, &c., as the property of Anderson; Cooper & Co. claimed the property as purchasers from Anderson, and having given notice to the sheriff of their claim, on his application this issue was framed.</p> <p>About the 1st of October 1869, Anderson bought a portable “ saw-mill complete” from Cooper & Co., who resided in Mount Yer-non, Ohio, for $2515, and paid $400 on the contract; for the remainder he and his brother Timothy Anderson gave three notes, dated October 15th 1869, and payable in four, eight and twelve months. The mill was put up on land bought by him from William McClelland; he ran it about a year. Being urged by Cooper & Co. for the payment of his notes, on the 24th of October 1870, he resold the mill, &c., to them, through their agent D. L. Travis, by contract in writing, reciting his indebtedness to them on the three notes to be $1971.44,.including interest, “for an engine, boiler and saw-mill;” and agreed “to deliver the same to them at my expense, on lands of Frank Reese, near the Cove road, within about a mile from where I have been running it, said D. L. Travis, agent of said Messrs. C. G. Cooper, agreeing to give me the priviledge of repurchasing the said engine, boiler and saw-mill, complete, until the 1st day of April next, for the same amount for which I have sold to him for Messrs. C. G. Cooper & Co.” Besides the writing it was agreed that Cooper & Co., should have time till Travis should go home and report to them; he then reported to Anderson, December 16th 1870, and the plaintiffs sent him the notes by mail marked paid. Anderson began the delivery of the mill on Reese’s land the next day after the sale. Travis was then on Reese’s land and superintended the delivery, it took two days or more; it was delivered to Travis for the plaintiffs, it was put up on Reese’s land under the superintendence of Travis; Anderson settled with, the men who assisted in putting the mill, &c., up. Anderson owed Travis $30; he paid to the men $23 and to Travis $7, the balance of bis debt. At the time of the removal of the mill to Reese’s land, Anderson had a right there; the timber was almost exhausted on the McLelland tract.</p> <p>Anderson on the trial testified, that after the mill was up on Reese’s land, Travis went to Somerset county, authorizing witness to work the mill till his return; Travis returned about December 16th, and witness rented the mill from him till 1st of April then next for $100, which he paid in advance. The unpaid notes were the whole consideration paid to witness for the mill. He sold to Cooper & Co. to pay the debt and keep the property from being sacrificed; the mill was moved because timber was more plenty on the Reese land; Cooper & Co. had no right on the Reese land; Travis was there about a day after the mill was put up, and then went away. Witness ran it as before, employed hands and paid them; Travis did nothing afterward in superintending; witness sold and cut tijnber.</p> <p>Travis testified, that he had been sent by Cooper & Co. to collect their debt from Anderson, that he insisted on payment, that Anderson said he could not pay money, and as the best thing witness could do, he'took the mill, &e., back in payment of the notes ; that Reese allowed him to put the mill on the ground, and after consultation with Cooper & Co., they ratified the arrangement which he had made.</p> <p>Both Anderson and Travis testified that the sale had been made in good faith to pay Cooper & Co., and not for the purpose of defrauding Anderson’s creditors. Anderson was very much in debt at the time, but believed that he was solvent.</p> <p>The defendants gave evidence by a number of witnesses, that Anderson had used the mill as before the sale, had cut and sawed timber and sold it; paid laborers; that he was insolvent and afterward made an assignment for the benefit of his creditors.</p> <p>The plaintiffs’ points which were affirmed were:—</p> <p>1. “ If the jury believe, from the evidence, that Moses Anderson sold, and the agent of the plaintiffs purchased the engine, boiler and saw-mill complete, for the consideration of the notes of $1971.44 held against Anderson by plaintiffs, which were receipted and given to him, and that the said property was delivered into the possession of Travis, the agent, on the land of Reese, with a bond fide intention of changing the possession as well as the title to the property, then the sale and purchase were valid, not only as between the parties, but as between them and creditors, notwithstanding the saw-mill was leased by the agent to Anderson from about the middle of December 1870 to 1st of April 1871.</p> <p>2. “ The change of the possession of personal property must be governed by the nature and kind of property sold, and whenever such change is made as the property is reasonably capable of, the requirements of the law are filled, as this was a cumbrous piece of machinery, weighing 18,000 pounds, which was required to be fastened to the earth as a part of the freehold. If therefore Travis, the agent, took the possession of the saw-mill and fixtures, and had it re-erected on the land of Reese, at the expense of the company, and for the company, the title was complete in the company, and the fact that he leased the saw-mill from December to April, did not divest the company’s title.</p> <p>3. “ The real questions in the case are, did the agent of the company make an honest purchase of this machinery from Anderson for a valuable consideration; did he receive actual and exclusive possession of it for his employers; if so, then the contract is valid, and the mere fact that the agent employed Anderson and his hands to aid in the work of re-erection, and that he leased to Anderson for a few months, does not make the sale void, and the plaintiff must have the verdict.”</p> <p>The defendant’s third point was :—</p> <p>“ If the jury believe from the evidence that Mr. Travis, as agent of Cooper & Co., only superintended the removal of the steam saw-mill from the place where it was on the day of the alleged sale, and its erection on the land of Mr. Reese, and then went away, leaving Anderson in exclusive possession and control of the mill and the business conducted thereat; and that Anderson afterwards employed and paid the hands, retained possession of the mill and conducted its business, as the ostensible owner thereof, and treated it in all respects as he had done before the alleged sale; then there was not such a change of possession accompanying and following the alleged sale as the law requires, and the verdict must be for the defendant.”</p> <p>To this the court (Rowe, J.) answered : “ This point is not affirmed; it is based on too narrow a view of the facts.”</p> <p>The court, after recapitulating the facts, and stating the law as to fraud, said:—</p> <p>* * * “ The jury are then to consider:</p> <p>“ 1. Whether the resale by Anderson to the Coopers of the mill and machinery bought from them, was honest and fair, what it purported to be, and not a mere cover or sham intended to hide the property from the other creditors, and prevent them from recovering their just debts. If it was not fair and honest, but a mere cover, it was void for actual fraud, and the verdict ought to be for the defendant, the execution-creditor.</p> <p>“ But the jury must understand that a man may take the property of his debtor for a just debt, though he knew that there are other creditors. To make fraud the intention must be to prevent others from recovering their just debts. Where the object is simply to save one’s own debt, the transfer is not fraudulent, though the effect is to withdraw the property from other creditors.</p> <p>“ [The evidence in this case to show actual fraud, to show either a design to cheat or to hinder other creditors, is as we view it meagre, but whether it is sufficient is for you.] You may find from all the facts in proof that the sale was a mere cover, not what it purported to be, and that the property was really to be Anderson’s, as to himself and the Coopers, and not his only as to other creditors. * * *</p> <p>“ If the jury shall determine that there was no actual fraud in this resale, they will then have to consider the further question, "Was there legal fraud ?</p> <p>“ There was no legal fraud if the property was delivered to the plaintiffs here, or to their agent Travis, in pursuance of the resale, and the possession of it retained by them in such manner as to give notice to the world of the change of ownership. Delivery must accompany and follow the sale to render it valid. There must be a bond fide substantial change of possession, which must continue. Travis must have assumed such control of the mill as reasonably to indicate to all concerned the fact of the change of ownership.</p> <p>“ [There is evidence of such assumption of control by him, and it is therefore for the jury to say, whether it was bond fide and enough to give notice to the world. Did the vendee do all that he might be expected to do in the case of a real and honest sale?] * * *</p> <p>“ It is true that the possession taken by the vendee must be exclusive of the vendor. A concurrent possession will not do. And the possession must continue in the vendee and not go back after a brief interval to the vendor.</p> <p>“ [But the assistance given by Anderson and his hands in the conveyance of the mill over to Reese’s land, would not be a color-able concurrent possession.</p> <p>“ If the evidence of Anderson and Travis is believed, the plaintiff’s agent would seem to have had the exclusive control and possession of the saw-mill from the time of the sale until it was set up and in running order on the Reese land, and for a day perhaps thereafter.]</p> <p>“ Then the agent went away for three or four weeks, leaving Anderson to Avork the mill as before. He declined to rent to Anderson until he could consult Avith his principals, but gave him permission to run the mill in the meantime, and Anderson ran it as before, employing and paying the hands, and cutting and selling timber. Upon his return, the agent rented the mill to Anderson for $100, paid in advance, until 1st of April following. Under this bailment or renting, Anderson was holding the mill and run-rung it when- the execution of the defendant in this issue came upon him, and the mill was seized as his property thereunder.</p> <p>“ Now if the mill had remained on the old site, on the McLellan tract, owned by Anderson himself, and the same state of facts had existed as has been shown here, with respect to the mill on the Reese land, the transaction would be colorable and fraudulent. [But upon the sale, the mill was taken up bodily and conyeyed away to the Reese tract, some distance off, though it was a huge affair, and this removal took place under the direction of the plaintiff’s agent, Travis, who consulted Reese, if he is believed, about placing it on ,his land. This was a notorious act, this removal, though it was to a tract on which Anderson had a timber leave.</p> <p>“ Would the bailment of the mill to Anderson, after such removal, and supposing the agent Travis to have had exclusive control and possession of the mill, during the time of its removal, that is from the time of sale to the contract of bailment, would such bailment render the whole transaction colorable and fraudulent? We think not, if there was enough in the circumstances attending the delivery of the property to Travis, and in the way he held it afterwards until the bailment, to give notice to the world of the change of ownership; and so we instruct you.] * * *</p> <p>“ [On the whole then, gentlemen, if the resale was honest and fair, and the delivery of the mill to the plaintiffs, and the possession held by them of it afterwards, of such a character as to give notice to the world of the change of ownership, notwithstanding the bailment to Anderson, whereby the property went back to his control after a brief interval, your verdict ought to be for plaintiffs ;] otherwise you should find for the defendant.”</p> <p>The verdict was for the plaintiffs.</p> <p>The defendant removed the record to the Supreme Court; and there assigned for error the answers to the points and the parts of the charge in brackets.</p>

<p>Error to the Court of Common Pleas of Franklin county: No. 75, of May Term 1872.</p> <p>This was an action of ejectment, brought August 20th 1870, for a lot of ground in the borough of Greencastle, in Franklin county, by Margaret Shirey, widow, and the children of Milton Shirey, deceased, against Joseph M. Martin and Albert G. Postlethwaite.</p> <p>Adam Shirey died May 16th 1862, seised of the premises, leaving to survive him, a widow, Elvinia, and three children, J. Wesley Shirey, Milton Shirey and Elizabeth Shirey, intermarried with Albert G. Postlethwaite. Besides the premises, on which he lived at the time of his death, he died seised of a farm in Antrim township, a house and lot in Greencastle, then occupied by his son, Milton Shirey, and a half lot of ground in Greencastle.</p> <p>By his will dated May 3d and proved May 22d 1862, he provided as follows :—</p> <p>“ I Order that all my Just Debts Funeral Expenses and Charges of Proving this my Will be in the First place Fully paid and satisfied and after payment thereof and Every part thereof I Will and Bequeath to my Beloved Wife Elvinia The house and half of the Lot in which we now live and the Division fence to be made and paid for out of Estate Together with the Interest of Two Thousand Dollars to be paid to her Annually as long as She Remains my Widow the said Dower to Remain in the land and the household Furniture to Remain as it now is as long as my Wife Remains my Widow I Will and Bequeath, all the Rest of my property both Real and personal to my three Children Except the house and Lot in the Possession of my Beloved son Milton'Shirey which I give and Bequeath to him before any Divide of my property is made it is my Wish According to my Wife’s Agreement with me that She will not Claim the three Hundred Dollars that the law Allows to , Widows and in Case of Daughter Elizabeth Rebaugh Should Die without Issue that her share of my Estate Shall be Equally Divided Among her Surviving Brothers or their Children and all the Rest Residue and Remainder of my Goods Chattels Ready Money Effects and Other of my Estate Whatsoever or Whosoever both Real and personal I give and Bequeath the same to my Son Milton Shirey and I Allow my said Son to Sell my Shop and half lot of Ground Together with my Farm in Antrim Township whenever he may think proper to the best Advantage and I Appoint my Son Milton Shirey my Sole Executor of this my Last Will and Testament.”</p> <p>Milton Shirey died in August 1864, leaving a widow and three children, the plaintiffs in this suit.</p> <p>Elvinia Shirey, the widow of Adam Shirey, on the 27th of July 1870, sold and conveyed the premises in dispute to Albert G. Postlethwaite, one of the defendants.</p> <p>These facts appeared on the trial, April 16th 1872, before Rowe, J.</p> <p>The defendants submitted the following points, the first of which was negatived and the second affirmed; the court directed the jury to find for the defendants :</p> <p>1. Under the will of Adam Shirey, his widow took a fee simple in the property in dispute, and having conveyed this to the defendant Postlethwaite, by deed given in evidence, there can be no recovery by the plaintiffs.</p> <p>2. Even if the fee simple did not pass under the will of Adam Shirey, and the Act of 8th April 1833, a life estate did pass thereby, which is as fatal to the plaintiff’s recovery in this action, as though a fee simple had passed.</p> <p>The verdict was for the defendants.</p> <p>The plaintiffs took out a writ of error and assigned the answer to their 2d point, and the instruction of the court for error.</p>

<p>Certiorari to the Court of Quarter Sessions of Bedford county: No. 77, to May Term 1872.</p> <p>On the 16th of October 1871, on the petition of citizens of Bed-ford township and Bedford borough, in Bedford county, the Court of Quarter Sessions appointed viewers “ for the site of a bridge over the Juniata river, at the north end of Richmond street,” on the road leading from Bedford borough to St. Clairsville, &c.</p> <p>On the 12th of February 1872, the viewers reported that a new bridge should be erected at the place indicated, and that its erection would be of greater expense than said township and borough should bear. On the same day, the report was laid before the grand jury, who on the 13th, concurred in the report; on the 16th the court also concurred.</p> <p>On the 22d of April, John G. Minnich, and a number of other citizens of Bedford county, petitioned for a review; on the 27th, the court refused to appoint viewers. In his opinion, after referring to the proceedings in the case, Hall, P. J., said :—</p> <p>“ A petition is now presented for the appointment of reviewers, and we are asked to order the commissioners to stay all further proceedings until the reviewers have made a report. And it is claimed that under the Act of 1836, in all cases of views of bridges, as of roads, when a report of viewers is presented to the court, it must be allowed to lie over until the next term of the court, in order to allow time for the filing of exceptions, or the presentation of a petition for á review — that the action of the grand jury, the court, and the commissioners was premature, and that the order of review now asked for is a matter of right, the application therefor having been made at the next term of the court after the report upon the original view.</p> <p>“ The 25th section of the Act of 13th of June 1836, is relied on to sustain this claim. * * *</p> <p>“ In determining this question, the whole Act of 1836 must be looked at. Section 4th, which is but a re-enactment of part of the 1st section of the Act of 6th of April 1802, provides expressly that in the case of a road the proceedings shall remain in fieri until the next term, and this is to give time for a petition for a review: Charleston Road, 2 Grant 467 ; Road to Ewing’s Mill, 8 Casey 282.</p> <p>“ If by that time exceptions are not filed, nor any petition for a review presented, the road becomes a public highway by mere operation of law; the whole proceedings are then to be ‘ entered on record, and thenceforth such road shall be taken, deemed and allowed, to be a lawful public road or highway, or private road, as the case may be.’</p> <p>“ But the language in regard to bridges is very different. Section 35th of the Act of 1836, is a re-enactment of the 21st section of the Act of 1802, and provides, ‘ if on the report of the viewers, it shall appear to the court, grand jury and commissioners of the county, that the bridge is necessary, and would be too expensive for such township or townships, it shall be entered of record as a county bridge.’ ”</p> <p>Minnich removed the record to the Supreme Court by certiorari.</p> <p>The errors assigned were:—</p> <p>1. That the court ordered the report of the viewers to be laid before the grand jury at the term at which it was made.</p> <p>2. That the court concurred in the action of the grand jury, &c., at the term at which the report of the viewers was made.</p> <p>3. That the court refused to appoint reviewers.</p>

70, to May Term 1872. On the 17th of June 1871, The Cumberland Valley State Normal School brought an action of assumpsit against J. Watson Craig, to recover “ an instalment of 25 per cent., amounting to $250, on the subscription price of 40 shares of the capital stock of the company.” The defendant subscribed by signing the following paper:— “We whose names are hereunto annexed agree to take the number of shares of stock in the Cumberland Valley State Normal School, set…

<p>1. The Act of June 28th 1871, permitting money in sheriffs’ hands to be, by agreement, considered in court, is not retroactive.</p> <p>2. Previously to that act, it was agreed that money in a sheriff’s hands should be considered in court, and an auditor’s report making distribution was confirmed. Held, that the whole proceeding was void for want of jurisdiction.</p> <p>3. The money not being in court, the agreement of the parities could not give the court power to distribute.</p>

<p>Error to the Court of Common Pleas of Cumberland county: Of May Term 1872, No. 87.</p> <p>This was an action to May Term 1872, of the court below, by James W. Bosler against Jacob Rheem.</p> <p>By a case stated in the case, it appeared that the cause of action was the following note:</p> <p>“$500.00. Carlisle, Pa., April 1st 1869. One year after date I promise to pay to the order of J. W. Bosler, the sum of five hundred dollars, with interest at the rate of eight per cent, per annum, without defalcation for value received.</p> <p>Jacob Rheem.”</p> <p>At the same time he executed the following agreement: —</p> <p>Whereas, J. W. Bosler, of Carlisle, Pa., has this day consented to loan me the sum of five hundred dollars, to be secured by negotiable promissory .note, bearing interest, at the rate of eight per cent, per annum, payable annually: and whereas, in pursuance thereof I have received from him the sum of five hundred dollars, and have given him my negotiable promissory note, bearing even date herewith, for the repayment of the same, on the first day of April, A. D. 1870, with interest, at the rate of eight per cent, per annum, payable annually: now therefore, in consideration of said loan, and for the further consideration of one dollar to me in hand paid by the said J. W. Bosler, I do hereby waive and release all my right under any and all existing and future laws whatsoever, to retain, deduct or withhold from the amount of said loan, or to bring or maintain any action at law or equity for the recovery of the excess of interest over and above the legal rate that may be paid at any time prior to the repayment of said loan. In witness whereof, I have hereunto set my hand and seal at Carlisle, Pa., this 1st day of April, A. d. 1869.</p> <p>Jacob Rheem. [l. s.]”</p> <p>The defendant on the 1st April 1870, paid $40 in full of one year’s interest; and on the 1st of April 1871, “ $40 in full of interest up to this date.” He claimed that the amount paid by him in excess of 6 per cent, in interest, should be credited on the note as principal, making the amount due by him April 1st 1871, to be $508.16, which had been tendered to the plaintiff.</p> <p>“ If the court be of the opinion that the said agreement of waiver is valid and binding in law upon the said defendant, then judgment to be entered for the plaintiff for five hundred and forty dollars; but if the court should be of the opinion that the said agreement is not valid and binding, judgment to be entered for the defendant.”</p> <p>The court below (Junkin, P. J.) entered judgment for the defendant in the following opinion: — “The question in the ease is, whether a separate covenant by a debtor made at the same time with the giving of the note for borrowed money, will render valid the promise of the borrower embodied in the note itself, to pay the lender eight per cent, interest. We do not see how or why it should. If by law more than six per centum cann'ot'be recovered, when the promise to pay (as is the case), is expressly made in the body of the note itself, how can the matter be aided, by a separate agreement or covenant to do the same thing ? One agieement or promise is just as binding as the other, and neither can be enforced, because the law forbids the thing to be done at all by adverse proceedings. In Heath v. Page, 13 P. F. Smith 108, it is held that ‘ excess of interest over six per cent, is the money of the borrower, which, when received by the lender, he cannot retain, but holds for the use of the borrower, and assumpsit will lie for it.’ If it may be recovered back, surely it may be applied directly when paid to the credit of the borrower in discharge of the unpaid balance due on the note.”</p> <p>So entering judgment was assigned for error by the plaintiff on the removal of the record to the Supreme Court.</p>

12, to May Term 1872. This was an action of trespass d. b. a. brought to September Term 1870, of the court below, by Jacob Spade against Jeremiah Bruner and William Carl, for seizing and selliiig a wagon of the plaintiff under the following circumstances. On the 2d of' March 1863, Philip Spade for the use of William Carl, recovered judgment againt Jacob Umboltz and Jacob Spade before Justice Light for $40. Light’s commission as justice had expired prior to May 31st 1870.

<p>1. As a general rule, a distinct crime unconnected with that in the indictment, cannot be given in evidence against the defendant.</p> <p>2. That one crime may be evidence of another, there must have been a connection between them in the mind of the criminal or the person must be so identified as to show that one committed both.</p> <p>3. Should the judge not clearly see the connection, the defendant should have the benefit of the doubt, and the jury not be>prejudiced by an independent fact, not evidence of the particular guilt.</p> <p>4. Defendant was indicted for murdering his wife by poison, there was evidence of his criminal intimacy with the wife of another man, on whose life was an insurance, the proceeds of which on his death the defendant endeavored to procure. Held, that evidence that the husband died with the same symptoms as defendant’s wife, and that he had been attended by the defendant, was inadmissible.</p> <p>5. The judge below charged : “ If the prisoner is guilty, there can be no difficulty in ascertaining the degree, for being by poison, it must be in the first degree if purposely administered : * * * if you are convinced that he is guilty of the crime, it is murder in the first degree as declared by the Act of Assembly, and it is your duty to say so without regard to the consequences to the prisoner.” Held, not to be error.</p> <p>6. If a charge is imperative, taking from the jury the right of deciding the degree of murder, it is error.</p> <p>7. It is the duty of the judge to inform the jury the degree fixed hy law to murder hy poison, and to instruct them as to their duty.</p> <p>8. Lane v. Commonwealth, 9 P. F. Smith 371; Rhodes v. Commonwealth, 12 Wright 396, distinguished.</p>

<p>Certiorari to the Court of Common Pleas of Mifflin county: No. 82, to May Term 1872.</p> <p>This was a proceeding under the Act of 1705, relating to hogs suffered to run at large. The proceedings were commenced September 3d 1869, before Joseph S. Waream, Esq., a justice of the peace of Mifflin county, upon the following information:—</p> <p>“Before me, &c., came Charles Stratford, of the township of Derry, in said county, yeoman, and being duly affirmed, did depose and say, that upon the third day of September, instant, he found upon his lands, situate in the township aforesaid, three shoats without rings in their noses and yokes or bows about their necks, and one shoat without a ring in its nose but having a bow about its neck, said shoats having been running at large, and the same being then and there found, did drive and carry away,” &e.</p> <p>The justice thereupon issued an order of appraisement, &c., to “two indifferent persons of the neighborhood,” who on the same day returned that they had appraised the hogs at $24. On the same day Stratford paid to the justice $12, the one-half of the appraisement, and the justice issued a notice, reciting the foregoing proceedings, that one-half the value of the hogs was forfeited to the owner of the land where they were found, and that the remainder, after deducting costs, was in his hands ready to be paid to the owner of the hogs, &c.</p> <p>At the instance of Shaw, the owner of the hogs, a certiorari was issued to the justice from the Court of Common Pleas of Mifflin county.</p> <p>The court (Woods, P. J.) affirmed the proceedings of the justice, and Shaw removed the record to the Supreme Court by certiorari, and assigned the affirmance of the justice’s proceedings for error.</p>

<p>Writs of error to the Court of Common Pleas of Dauphin county: No. 45 and 46, to May Term 1872.</p> <p>Two actions of debt, No. 605 and 606, were brought to August Term 1871, of the court below, by The Commonwealth against The Manufacturers’ and Mechanics’ Bank of Philadelphia.</p> <p>No. 605, was for the recovery of tax on dividends.</p> <p>No. 606, for tax on the capital stock.</p> <p>The following case was stated in No. 605 :—</p> <p>The Manufacturers’ and Mechanics’ Bank of the city and county of Philadelphia was, m the year 1864, a corporation established under the laws of Pennsylvania.</p> <p>Upon the 24th day of October 1864, the said bank, under the provisions of an Act of Congress of the United States, entitled “An Act to provide a National Currency, &c.,” approved the 8d of June 1864, made its organization certificate in due form for the purpose of becoming a National Association for carrying on the business of banking by the name of the Manufacturers’ National Bank of Philadelphia, which certificate, duly acknowledged and authenticated, was thereupon transmitted to the comptroller of the currency, on the 28th day of October 1864, he gave the said The Manufacturers’ National Bank a certificate, that the provision of the Act of Congress has been complied with, and that it was authorized to commence fhe business of banking under the said act.</p> <p>From and after the date of the said certificate, the said Manufacturers’ National Bank assumed the character and duties of a national association as aforesaid, and paid into the treasury of the United States the taxes imposed upon it by the said Act of Congress.</p> <p>The said Manufacturers’ and Mechanics’ Bank, on the 15th day of December 1864, furnished to the auditor-general of the state of Pennsylvania, satisfactory evidence that the requirements of a certain act of the legislature of the state of Pennsylvania, entitled, “ An act enabling the banks of this Commonwealth to become associations for the purpose of banking under the laws of the United States,” approved the 22d day of August 1864, had been complied with in relation to the said last-named bank, and that it had become a banking association under the laws of the United States.</p> <p>The auditor-general held over the evidence of the conversion of said bank, awaiting payment of a balance of taxes due to the 1st of November 1864. This balance being paid on the 19th December 1864, the auditor-general on that day certified the facts to the governor, who, on the 21st day of the same month caused notice thereof to be published in the North American, a newspaper published in the city and county of Philadelphia, where the said bank was located, for at least three weeks. All taxes upon the dividends of said last-named bank, payable previously to the 1st of November 1864, were duly paid to the Commonwealth before the commencement of this suit, as will appear by the settlement of the auditor-general, a copy of which is hereunto annexed and made a part of this case stated.</p> <p>Now, it is hereby agreed that if the court shall be of opinion that the said Manufacturers’ and Mechanics’ Bank is not liable to pay to the Commonwealth any tax upon dividends after the 1st of November 1864, then judgment shall be entered for the defendants, but if the opinion of the court shall be to the contrary, the judgment shall be entered for the plaintiff for $1008.85, with interest, at six per cent., from May 12th 1866.</p> <p>The case stated in No. 606, is similar, except that the amount of tax was $888.</p> <p>The court below (Pearson, P. J.) entered judgment for the Commonwealth as follows:—</p> <p>In No. 605 for $1349.50.</p> <p>In No. 606 for $519.01.</p> <p>The defendants removed the record in each case to the Supreme Court, and assigned for error, the entering of the judgments for the Commonwealth.</p>

<p>1. A loan dne by an improvement corporation, secured by mortgage on its property in this state, is taxable under the tax laws of the Commonwealth. Per Pearson, P. J.</p> <p>2. Such loans are taxable although held by a non-resident. Id.</p> <p>3. The legislature can tax the property of another state situate in Penn- * sylvania, or bonds, &e., being a lien on property in this state and protected by its laws. Id.</p> <p>4. The state may make the debtor, when in its bounds, the collector of the tax due on the debt. Id.</p> <p>5. If another state becomes a lender here, it so far divests itself of its sovereignty. Id.</p> <p>6. Maryland in 1839 made a loan to an improvement corporation of Pennsylvania and secured it by mortgage on the property of the corporation in Pennsylvania. Held, that the loan was liable to taxation under subsequent tax laws, and that the taxation did not violate the obligation of the contract. Id.</p>

<p>Error to the Court of Common Pleas of Huntingdon county: Of May Term 1872, No. 39.</p> <p>This was a mandamus at the relation of A. B. Crewitt and others, against the County Commissioners of Huntingdon county, commanding them to pay the relators the costs of the defendant in the case of the Commonwealth against A. H. Crewitt, who had been indicted in the Court of Oyer and Terminer for murder and acquitted.</p> <p>A. H. Crewitt, who had been bound over to January Term 1870, on the 11th of that month, petitioned the court setting forth that he was unable to pay the expenses of his witnesses and other expenses necessary for his defence, and praying “ the court for an order that the county pay the costs of process and of witnesses for him.” On the same day the court ordered “ that process issue at the expense of the county for defendant’s witnesses.”</p> <p>The trial commenced the same day. On the 19th of January, after the trial and acquittal, the defendant’s bill costs for subpoenas, daily pay and mileage of his witnesses, amounting to $137.08, was filed.</p> <p>On the 2d of June 1870, on the petition of the relators, a rule on the county commissioners was granted to show cause why a mandamus should not issue against them, commanding them to draw a warrant on the county treasurer for the paymentof the defendant’s bill of costs. On the 22d of December 1871, the court (Dean, P. J.) made the rule absolute and awarded a peremptory mandamus, commanding the commissioners forthwith to issue “ their warrant on the county treasurer for fees and costs” in the defendant’s bill.</p> <p>The county removed the record to the Supreme Court and there assigned for error the order of January 11th 1870, and awarding the mandamus.</p>

<p>Certiorari to the Court of Quarter Sessions of Dauphin county: No. 27, to May Term 1872.</p> <p>This proceeding was commenced September 2d 1872, by the petition of William Rutherford, to the Court of Quarter Sessions, under the Act of May 9th 1871 (Pamph. L. 263), entitled “ An act for redraining wet and swampy lands.”</p> <p>The act provides:</p> <p>See. 1. That any contiguous swampy or wet lands belonging to several owners disjointly, which have once been drained and the drain or drains are not property opened and in good condition, shall be redrained under the following regulations.</p> <p>Sec. 2. On the petition of an owner of such lands, the Court of Quarter Sessions shall appoint three disinterested commissioners, with power to view the lands described in the petition, and if in their judgment to redrain them, shall be practicable, they shall report to the court setting forth the names of the owners through whose land the drain needs to be reopened and attach a draft of the drains to be reopened with their dimensions.</p> <p>Sec. 3. On presenting the report, the court shall order a notice to be served by a constable on the landowners through whose land the drains need to be reopened, ordering him to open the same through his land at his own expense, according to the draft attached to the commissioners’ report within a time to be fixed by the court, not exceeding sixty days.</p> <p>Sec. 4. The constable within ten days after the time set by the court, shall make return to the clerk of the court, of the service of the notice and the compliance or non-compliance with its order; and if he return that the order has not been complied with, a penalty of $10 a day from the time of filing the constable’s return, until the drain shall be reopened, shall be imposed upon the non-complying owner, recoverable in the name of the Commonwealth, by the petitioning owners, when over $50 shall become due, one-half to the person suing and the other half to the use of the directors of the poor.</p> <p>Sec. 5. The costs of the proceeding to be borne by the party through whose land the drains may be so reopened.</p> <p>Rutherford’s petition set forth: “ That there are contiguous swampy or wet lands belonging to the several owners, disjointly, viz.: James Young, Wm. W. Rutherford and James B. Henderson, situate, &c., which have once been drained, and that he is one of the owners of said lands, and that the drain or drains passing through the lands of James Henderson, who is also one of the owners of said lands, are not properly opened and in good condition, thereby preventing the free passage of water through said ditches into the Susquehanna river, and damaging the adjoining lands;” and praying for the appointment of commissioners under the act.</p> <p>On the 6th of September the court appointed three commissioners, who reported that having viewed the lands mentioned in the petition, they found that it was practicable to redrain them, and for that purpose the drains on the lands of Rutherford and Henderson should be opened to the main channel. They then reported the manner in which the drains should be made and their dimensions, &c., and accompanied their report with a draft.</p> <p>The report was filed October 4th, and on the 7th of October Henderson filed the following exceptions in the Quarter Sessions :—</p> <p>1. Because private property is taken for a private use and purpose without an equivalent.</p> <p>2. Because the property of one citizen is taken and transferred to another by an ex parte proceeding.</p> <p>3. Because a duty is enjoined and a penalty imposed upon one person, for the private benefit of another, at the costs and expense of the former.</p> <p>4. Because a person’s property cannot be taken for private purposes, even with compensation.</p> <p>5. Because an act is required to be done by one person, to his great inconvenience and loss, without any notice given to him. All which acts to be done and performed by him he believes are contrary to the spirit of the Constitution and the law of the land.</p> <p>The court (Pearson, P. J.) overruled the exceptions and directed that an order to open the drains be issued.</p> <p>Henderson removed the proceedings to the Supreme Court by certiorari, and assigned for error, that:</p> <p>“ The Act of 9th May 1871, on which these proceedings are based, is unconstitutional and void; and the court erred in exercising jurisdiction under it.”</p>

<p>1. A testator devised to trustees money invested and real estate for the use of his wife for life, after her decease the trustees “ to hold the same for the sole and separate use and benefit of my two nieces, Elizabeth and Margaret;” one-half the money and two lots to the use of Elizabeth ; one-half the money and four lots for the use of Margaret, “ and at the death of either of my nieces, the portion held for her use, shall vest in her heirs absolutely for ever ; and at the death of the survivor of my nieces, and provided my said nieces or either of them should die without heirs, or their heirs or the heirs of either of them should die in their minority and without issue, then and in that case the portion above devised to the use of such niece, or the f>ortion of both, provided the contingency happens to both, shall vest absoutely in the heirs of my brothers and sister, viz.: John, Samuel and Martha, whose heirs I am unable to name.” Held, (1.) ‘‘ Heirs” meant children of his nieces. (2.) The estate limited to the nieces was defeasible on their death without issue, or of their “ heirs” in their minority without issue. (3.) The limitation over to the heirs of the testator’s brothers and sister was on a definite failure of issue of the nieces.</p> <p>2. One of the nieces died unmarried and without issue, the other married after the death of the testator and died leaving one ehild (who died), and her husband; the testator’s widow afterwards died. Held, that the devises to the nieces and “ their heirs” failed and the heirs of the testator’s sister and brothers took a fee in the devises.</p>

<p>Error (from the Eastern District) to the District Court of Philadelphia: Of January Term 1872, No. 230.</p> <p>This was a scire facias, issued October 21st 1870, by The City of Philadelphia against Freeman Scott, owner, &c., on a tax claim amounting to $237.16, filed against a lot of ground on Carlton Street, with the building erected on it, &c. The return to the writ was, “ Made known by posting and publication, and nihil habet as to the defendant.”</p> <p>By Act of February 3d 1824, § 1, 8 Smith’s L. 189, 2 Br. Purd. 1084, pi. 1, all taxes, &c., in Philadelphia on real estate shall be a lien on such real estate.</p> <p>By the Act of April 16th 1845, § 3 Pamph. L. 496, 2 Br. Purd. 1086, pi. 12, the treasurer of Philadelphia was authorized to enforce payment of such taxes and to employ counsel for the purpose.</p> <p>By .Act of January 23d 1849, § 3, Pamph. L. 686, 2 Br. Purd. 1090, pi. 34, sales under municipal claims are to be made only after three months’ publication in daily newspapers in Philadelphia, before commencing suit on the claim. By Act of March 11th 1846, § 2, Pamph. L. 114, 2 Br. Purd. 1087, pi. 18, the claim for taxes is to be filed in the office of the prothonotary of the District Court, and the city may proceed by action of debt against the person liable for the taxes or proceed by scire facias, as in case of mechanics’ liens. In case of mechanics’ liens, if the defendant cannot be found in the county and there be no one residing on the premises, the sheriff shall affix a copy of the scire facias on the house. By the Act of April 12th 1859, § 1, Pamph. L. 114, 2 Br. Purd. 1087, pi. 16, the powers and authority of the treasurer were conferred on the receiver of taxes.</p> <p>On the 23d of March 1866 (Pa.mph. L. 303, 2 Br. Purd. 1091, pi. 42, et seq.), there was enacted “ A further supplement * * * regulating the filing and collection of municipal claims.”</p> <p>The preamble and the first section are:—</p> <p>“ Whereas, Frequent and just complaints have been made, that great expenses are imposed upon the owners of real estate in the city of Philadelphia, by the necessary costs for advertising municipal claims before suit brought, as required by existing laws, and great injustice is frequently done to the owners of property liened by the city, who are ignorant of the existence of claims against the same, by the accumulation of the costs of suit thereon, and by selling said properties without actual notice to them :* * *</p> <p>“ Sec. 1. That all laws and parts of laws, requiring the advertisement before suit brought, of municipal claims of every description, so far as said requirements are concerned, are hereby repealed, and in lieu thereof, and as a sufficient substitute therefor, it is hereby declared, that before any scire facias shall be issued on any such claim, it shall be the duty of the city solicitor to cause diligent search to be made by an assistant or clerk, for the owners or reputed owners of all real estate, against which there has heretofore been, or may hereafter be, filed, any claim in the name of the city of every kind, and to serve him or her with a written or printed notice to make payment to the city solicitor within ten days.”</p> <p>By subsequent sections it is provided that “ the writs of scire facias shall be served by the sheriff, by advertising and posting as now by law required,” and before judgment by default, the court must be satisfied by affidavit, that if the owner had a known residence in the city, he had been served before suit with notice of the claim ; if the owner had no known residence in the city but has residence elsewhere, that notice of the claim had been sent to him by mail; if his residence could not be ascertained, that the premises had been visited and the notice served on the occupant-if there were one, if unoccupied, that a notice of the claim was affixed on the premises, &c., with other provisions to ascertain the owner for the purpose of serving him.</p> <p>The cause was tried May 19th 1871, before Thayer, J. The claim was given in evidence by the plaintiff, and it was admitted, that no notice had been given to the defendant under the Act of March 23d 1866, before issuing the scire facias.</p> <p>The court reserved the point whether the neglect of the plaintiff to give the notice to the defendant required by the Act of 23d March 1866, before issuing the scire facias, constituted a defence to this action and prevented the plaintiff’s recovering; and directed the jury to find a verdict for the plaintiff, subject to the decision of the court in banc, upon the reserved point. The jury found a verdict for the plaintiff for $160.20; and afterwards the court, sitting in banc, entered judgment for the defendant upon the said reserved point.</p> <p>The plaintiff sued out a writ of error from the Supreme Court, and assigned the entering of judgment for defendant for error.</p>

<p>1. The 9th section of Act of April 22d 1856 (Judgments), applies to subrogation and to cases where the estates of several shall be subject to the lien of' a judgment, to which they should contribute.</p> <p>2. In such cases the court may order the properties to be sold in the proportion or succession in which they are liable to contribute to the lien, or compel the plaintiff on payment to assign his judgment and direct to what uses it shall be assigned, and may control the execution so as to prevent injustice.</p> <p>3. R. and P. jointly purchased two tracts, gave a mortgage on them for the purchase-money ana made amicable partition. R. paid part of the mortgage. On his offer to pay the residue of the proportion to which his part was liable, the court might order P.’s tract to be first sold.</p> <p>* 4. The proper practice in such case, stated.</p>

<p>1. Upon conflicting testimony the court below decreed subrogation; on appeal the Supreme Court held, that the evidence of the appellant should outweigh that of the appellee before error could be alleged; the evidence being about equipoised the decree was approved.</p> <p>2. The right of subrogation, being of pure equity and benevolence, is the subject peculiarly of equity jurisdiction.</p> <p>3. Appeal is the proper remedy to review a decree of subrogation in the court below.</p> <p>4. In the court below the proceeding for subrogation should be by petition (setting forth the necessary facts), and answer.</p>

<p>Error to the Court of Common Pleas of JSrie county: No. 66, to October and November Term 1871.</p> <p>On the 2d of May 1868, No. 826, to February Term 1868, a judgment “ J. C. Graves against Theodore Eimers & Co.,” was entered in the Court of Common Pleas of Erie county for $800, on a note dated April 1st 1868, for that sum, payable to the plaintiff or bearer in six months with interest, with warrant of attorney to confess judgment, waiving inquisition, exemption, &c.; thenote and warrant were not under seal, and were signed by Theodore Eimers only.</p> <p>The plaintiff doubting the effect of the entry of the judgment against the members of the defendant firm other than Theodore Eimers, brought an action of assumpsit to February Term 1889, against Matthew Kneib, Martin Schwab and Joseph Eimers, who, he aVerred, were the other partners.</p> <p>His declaration set out the indebtedness of the firm to him on the note mentioned in the judgment; that judgment had been recovered on it against T. Eimers by virtue of the warrant of attorney, “but no valid judgment had been obtained against the defendants, the remaining members of the said firm, by reason whereof and by force of the statute, &e., the plaintiff became entitled to have and maintain this action against the defendants.” Kneib alone took defence and pleaded the general issue, but did not put m an affidavit denying the partnership, as required by the rules of the Court of Common Pleas of Erie county. The case being thus at issue it came on for trial January 80th 1871.</p> <p>After the plaintiff had closed his case, the defendant offered in evidence the record of the judgment, No. 826, to February Term 1868, to show a former recovery for the same cause of action.'</p> <p>On the plaintiff’s objection the court rejected the offer, for the reason that there was no plea of “ former recovery.”</p> <p>The defendant then, by leave of the court, added the plea of “former recovery,” in which he set out the above-mentioned judgment. The cause was continued on motion of the plaintiff.</p> <p>On the 31st of January the plaintiff suggested that the defendant by his plea of former recovery had affirmed the judgment mentioned in it as a valid judgment against him, and thereupon moved “ for leave to issue an execution on this judgment against the said Kneib as well as the other defendants.”</p> <p>The court granted a rule to show cause, which after argument was made absolute March 27th 1871; and a fi. fa. was accordingly issued.</p> <p>This ruling of the court was assigned for error by Kneib on his removal of the record to the Supreme Court.</p>

22. This was a scire facias issued to June Term 1868, of the court below, by Schieffelin, Brothers & Co. against George M. MoAvbray and Jacob I). Angier, terre-tenant; the defence was made by the terre-tenant. The case was tried, November 22d 1870, before Yincent, J. The plaintiff offered in evidence a mortgage from Mowbray to themselves for $2900 on real estate in Titusville, Crawford county; it was dated May 2d 1862.

187, to October and November Term 1870. This was an action of assumpsit by the Hocking Valley Bank (Ohio) against L. L. Barton, brought to August Term 1859. The cause of action was the following note:— ■“ $1000. Lancaster, Ohio, August 25th 1857.

<p>Error to the Court of Common Pleas of Allegheny county: No. 94, to October and November Term 1871.</p> <p>This was an action of debt by Martin B. Scott against Theodore Noble, commenced April 25th 1866 ; on the 4th of May 1867, the court permitted the name of Joseph Grafton to be added as defendant. An alias summons was issued against Grafton on the 3d of July 1867 ; to this writ the sheriff returned “Nihil.”</p> <p>The cause of action was a judgment of the Supreme Judicial Court of Massachusetts, in favor of Scott against Grafton and Noble on the 12th of May 1846, for $6363.76, besides costs.</p> <p>On the 13th of September 1844, an action was commenced in the Court of Common Pleas of Suffolk county, Massachusetts, by Martin B. Scott against Joseph Grafton, of Boston, Massachusetts, and Theodore Noble, of Cleveland, Ohio, trading as Graftan & Noble, on a promissory note of the defendants to plaintiff, dated November 18th 1872, for ¡§5368.33, and payable one day after date.</p> <p>The sheriff returned that he had summoned Grafton, and that Noble “ not being a resident in my precinct, and he not having any agent or attorney duly accredited and known to me as such within my precinct, I could make no service on him.”</p> <p>On the 20th of November 1844, Graftan made an affidavit of defence, and on his application the action was removed to the Supreme Judicial Court. By the record of that court it further appears as follows:—</p> <p>“ Commonwealth oe Massachusetts.</p> <p>“ Suffolk, ss.</p> <p>“ Supreme Judicial Court, March Term, A. D. 1845.</p> <p>“ Martin B. Scott, plaintiff, against Joseph Grafton and Theodore</p> <p>Noble, defendants.</p> <p>“ This is an action of assumpsit to recover ten thousand dollars alleged to be due to the plaintiff, from the defendants, on the 13th day of September, a. d. 1845, as set forth in plaintiff’s writ of that date.</p> <p>“ And it appearing to the court by the suggestion of the plaintiff and on inspection of the officer’s return on the plaintiff’s writ, that the defendant Noble was not an inhabitant of this Commonwealth, nor resident therein at the time of the service of said writ, and that he had no last and usual place of abode, tenant, agent or attorney in this Commonwealth, known to the plaintiff or to said officer, and that no personal service of the writ has been made upon the defendant Noble:</p> <p>“ It is ordered by the court here, that the plaintiff give notice to the defendant Noble, of the pendency of this action, by serving him with a true and attested copy of this order, fourteen days at least before the second Tuesday of November next, that he may then and there appear and show cause why judgment in the above entitled action should not be rendered against him; and that this action be continued from term to term until notice shall have been given to the defendant Noble agreeable to this order.</p> <p>George C. Wilde, Clerk.”</p> <p>“ On an attested copy of which order, duly certified by the clerk of said Supreme Judicial Court, the following endorsement appears :—</p> <p>“ I accept service of the within writ.</p> <p>October 23d 1845. Theodore Noble.”</p> <p>“Armstrong County — Commonwealth of Pennsylvania, ss.</p> <p>“ Personally appeared before me, a justice of the peace for the county aforesaid, the above-named Theodore Noble, and acknowledged the above signature to be his.</p> <p>“ Given under my hand and seal this 23d day of October, A. D. 1845. Alexander Gardner, [l. s].”</p> <p>“ Thereupon the action was continued unto the November Term of said court, 1845, when the plaintiff and said Joseph Graftan appeared; but tbe said Theodore Noble, although solemnly called to come into said court, did not appear but made default.</p> <p>“ And t-he action was continued unto the March Term of said court, 1846, when at the commencement of said term the plaintiff and said Joseph Graftan appeared, but afterwards, during said term, the said Joseph Graftan, although solemnly called to come into said court, did not appear, but made default.</p> <p>“It was therefore considered by said court, on the thirty-second day of the term, being the 12th day of May, in the year eighteen hundred and forty-six, that the said Martin B. Scott recover against the said Joseph Graftan and Theodore Noble the sum of $6368.76 damage, and costs of suit taxed at $52.21.</p> <p>“ On which judgment an execution was issued on the 3d day of November 1846, which execution has not been returned into the clerk’s office of said court.</p> <p>“ All and singular which premises we have held good by the tenor of the presents to be exemplified.” * * *</p> <p>On the trial April, 6th 1868, before Stowe, J., the records above stated were given in evidence.</p> <p>The defendants gave no evidence.</p> <p>The court charged as follows :—</p> <p>“ The jury are instructed fro formd, that under the evidence in this case plaintiff is entitled to recover the amount of judgment with interest, and directed to return a verdict for that amount, subject to the questions of law raised by the several points presented by defendant’s counsel, which are reserved.”</p> <p>A verdict was rendered for the plaintiff for $15,003.44, subject to the questions reserved.</p> <p>Judge Stowe in his opinion on the reserved question, after stating the evidence as given in the case, said: * * *</p> <p>“ The defendant now alleges that this evidence is insufficient to authorize a verdict and judgment for plaintiff.</p> <p>“ 1. Because the endorsement by defendant Noble upon the certified order of the Supreme Judicial Court of Massachusetts (as appears by the record above recited) did not give jurisdiction to said court over the person of Noble so as to render effectual and of 'force in this state the judgment rendered against him by said court.</p> <p>“ 2. That the record shows that the court in which suit was brought did not have jurisdiction over the person of defendant so as to make the judgment valid and effectual against him in this state.</p> <p>“ These two reasons involve the same questions, viz.: Does this record show such a state of facts as to sustain an action in Pennsylvania against defendant Noble upon the judgment of the Supreme Court of Massachusetts ? In other words, does this record show the court had jurisdiction over Noble, the defendant, so as to render the judgment obtained against him valid and effectual beyond the limit of the state of Massachusetts ?</p> <p>“ It seems to be settled beyond controversy that a judgment obtained against a person without notice, in a state where he has no residence, and in which he has no property during the pend-ency of the action, has no extra-territorial vitality — but that is not the precise case in hand. Here Noble not only had notice of the pendency of the suit, but actually accepted service of the same, in ample time before judgment, to have made defence if he had so wished.</p> <p>“ The question now is, did this give the Supreme Court of Massachusetts such jurisdiction over the person of Noble as makes this judgment valid as the foundation of an action in Pennsylvania.</p> <p>“ If the original summons, or what we may consider the same thing, this notice, had been served by the proper officer of the court of Massachusetts upon Noble in Pennsylvania, would that have given jurisdiction ? Steel v. Smith, 7 W. & S. 448. * * * No sovereignty can extend its process beyond its own territorial limits, to subject other persons or property to its judicial decisions : Story’s Confl. Laws; Rogers v. Burns, 8 Casey 527.</p> <p>“ The same doctrine is fully established by the Supreme Court of Massachusetts itself, in Hall v. Williams, 6 Pick. 240; Mills v. Duryee, 7 Cranch 481; Price v. Hickock, 89 Yt. 292. Is the case altered by reason of the acceptance of service by Noble of the notice directed to be served upon him by the court ? I think not.</p> <p>“ The acceptance of service of a writ or notice I take to be nothing more than an assent to the service, which waives irregularities as to time and manner, but which amounts to nothing more than a proper and legal service would. It is not ever considered as equivalent to an appearance. But even assuming that the effect of the acceptance of service of the notice was substantially an agreement by Noble that the court should have jurisdiction, and so far as he was concerned, might proceed and dispose of the case without his appearance by perscin or attorney, I do not think this would help the matter. Even when a party is within the control of the court, consent will not give jurisdiction, nor will it give effect to a nullity. Here it is sought not only to give jurisdiction to a court by a mere inferential agreement by a party to a suit, but actually to confer upon the court of Massachusetts a right to exercise authority over a citizen of Pennsylvania, when within the jurisdiction of his own state. It is clear that this would be entirely inconsistent with the sovereignty of Pennsylvania, and therefore does not fall within the power of any individual.</p> <p>“ This disposes of the whole ease, and renders the examination of the other questions unnecessary.</p> <p>“ Let judgment be entered for defendant non obstante veredicto, upon payment of the verdict fee.”</p> <p>Judgment was accordingly entered for the defendant.</p> <p>The plaintiff having removed the case to the Supreme Court, assigned the entering of this judgment for error.</p>

<p>Appeal from the District Court of Allegheny county: In Equity: Of October and November Term 1870, No. 203.</p> <p>The proceeding commenced by a bill, filed February 15th 1868, by “ The First Evangelical Lutheran Church of Pittsbufig” against Jacob S. Newmyer.</p> <p>The complaint was, that the plaintiffs, an- incorporated religious body, having determined to change the location of their church building, selected a lot on Penn street, Pittsburg, which could be purchased for $20,000. A subscription book was accordingly opened in which the several subscribers agreed to pay the sums set opposite their names, “provided $20,000 is made up and paid;” $20,245 were subscribed and paid; the lot was purchased and paid for by the money subscribed, and the title, on the 30th of April 1864, conveyed by John Herron, the owner, to Thomas H. Lane, George Black and Jacob S. Newmyer; the plaintiffs, by resolution of their church council on the 18th of November 1867, requested Lane, Black and Newmyer to convey the lot to the corporation ; Lane and Black executed a deed of conveyance, but Newmyer refused.</p> <p>The prayer of the bill was, that a decree be made ordering Newmyer to execute the deed of conveyance to the corporation.</p> <p>Newmyer answered that the lot had been purchased by the subscription-money as averred in the bill, but that the subscriptions were made and paid, he being one of the subscribers, with the express understanding, that the lot was not to be given to the church until it should raise a fund to erect a church building on the lot free from all debt; the fund was to be raised in a reasonable time, and the building commenced with the least practicable delay; ho such fund had been raised although a reasonable time had elapsed; the deed from Herron was made to Lane, Black and the respondent, without the respondent’s knowledge or consent. Previously to the request to him to execute the deed of conveyance, he had been notified by subscribers to the amount of $6360 to the fund for the purchase of the lot, not to convey it to the plaintiffs, as they would hold him “to strict accountability in regard thereto.” In his answer he suggested that the subscribers thus notifying should be made defendants in the bill, and declared his readiness to execute such deed as the court should decree; he further submitted whether any decree could be made against him.</p> <p>A replication was filed, and William B. Cooke, Esquire, was appointed master.</p> <p>The master found that the subscriptions were made, and the lot purchased with the moneys, as set out in the bill, and that the conveyance to Black, Lane and Newmyer was in trust for the plaintiffs; that the conveyance from Herron had been made without the respondent’s knowledge and consent, and his name used without his authority; that notice had been given to Newmyer, as averred in his answer, not to execute the deed; that John Graff, one of the subscribers, and one of the persons notifying Newmyer, subscribed upon the understanding that the full amount of the purchase-money of the lot should be paid, and the church building erected as soon as practicable, by selling the old church lot and raising an amount outside sufficient to free the church from all debt; “then, and not until then, was the title of said lot to be vested in the church;” that such was not the general understanding amongst the subscribers; the subscriptions having been made on no other conditions than those appearing in the subscription-book. The master was of opinion that the terms and conditions of the subscriptions were those only contained in that book. He further found that no funds had been raised or steps taken to build a church on the lot.</p> <p>He decided that the plaintiffs were entitled to a conveyance of the lot from the respondent.</p> <p>After exceptions to the report, the court (Hampton, P. J.) decreed: “ That the said respondent, Jacob S. Newmyer, took and holds the title to the lot of ground mentioned and described in complainants’ bill in this case, and conveyed by John Herron and wife to Thomas H. Lane, George Black and the said Jacob S. Newmyer, by deed dated April 30th 1864, &c., in trust for the complainants, the First English Evangelical Lutheran Church of Pittsburg. And the court do further order, adjudge and decree that the said Jacob S. Newmyer do forthwith execute and deliver to the said complainants a good and sufficient deed, granting and conveying to them all his right, title, interest and estate in the lot of ground aforesaid, conveyed to him by the aforesaid deed of the said John Herron and wife, and that the respondent pay the costs.”</p> <p>Newmyer appealed to the Supreme Court, and there assigned the following errors:—</p> <p>1. That the subscribers who notified the appellant not to convey were not made parties.</p> <p>2. Decreeing that the plaintiffs were entitled to a conveyance from the respondent.</p> <p>3. Decreeing that the respondent should pay the costs.</p>

<p>Error to the Court of Common Pleas of Allegheny county: No. 99, to October and November Term 1871.</p> <p>This was an action of assumpsit brought June 19th 1870 ; W. H. Everson, Barclay Preston and C. L. Grant, trading as Ever-son, Preston & Co. against Henry Bradstreet, C. H. Ranney, M. Hoffman and L. B. Reese, trading as J. M. Bradstreet & Son.</p> <p>The plaintiffs’ affidavit of claim averred that on the 2d of June the defendants were carrying on a mercantile agency in Pittsburg, and had agents throughout the United States, one branch of their business being to make collections through their agents; on that day the defendants undertook to collect for the plaintiffs, four drafts, amounting in all to $1726.37, which had been drawn by them on Watt C. Bradford, of Memphis, Tennessee, and had been accepted by him. On the delivery of the drafts the defendants gave plaintiffs this receipt:—</p> <p>“ J. M. Bradstreet & Son, Improved Mercantile Agency,</p> <p>Pittsburg, June 2d 1865.</p> <p>“ Received from Messrs. Everson, .Preston & Co., four duplicate acceptances for collection, against Watt C. Bradford, Memphis, Tennessee, amounting in all to $1726.37.</p> <p>“ J. M. Bradstreet & Son.”</p> <p>The defendants sent the draft to John W. Wood, their agent at Memphis, who previously to September 1867, collected the money due on them with interest; the plaintiffs have since frequently applied to the defendants for the money so collected, but they had refused to pay it over.</p> <p>The affidavit of defence was made by E. H. Nevin, the agent of the defendants and the superintendent of their Pittsburg office. It averred that it was not part of the business of the defendants “ to take or make collections through their agents on the 2d day of June 1865” of since; that the defendants never received any drafts for collection, as set forth in the affidavit of claim ; that they did not at any time authorize or permit their agents or superintendents to receive for them any collections of any kind, but had long previously to the 2d of June 1865, forbidden their agents to receive any, and if any of their agents had received from the plaintiffs for collection the drafts set forth in the claim, “it was without their knowledge, against their instructions and never received their acquiescence or approval.”</p> <p>The case was tried March 27th 1871, before Sterrett, P. J.</p> <p>Preston, one of the plaintiffs, testified that he delivered the acceptances to the defendants and got from them the receipt mentioned in the affidavit of claim.</p> <p>The plaintiffs offered the receipt in evidence ; it was objected to as not being the receipt of the defendants, not signed by them nor by their authority. The court decided that there was sufficient evidence of its being genuine to go to the jury, and sealed a bill of exceptions.</p> <p>Preston testified that the business of the defendants was that of a mercantile agency, and furnished information of the standing of parties all over the country; they issued a book to which the plaintiffs were subscribers, giving information on the subject of their business ; there was no agreement with the defendants as to their charge; Dunn & Co., another mercantile agency, had collected for plaintiff and charged them 5 per cent.</p> <p>On cross-examination, Preston said he had never seen Bradstreet, nor did he know that he ever had seen any of the defendants; had heard that some of them lived in New York, and that they had their principal place of business there; he did not know who gave him the receipt or by whom it was written; it was given to him by a person in the office attending to the business.</p> <p>Under objection and exception, the plaintiffs gave in evidence the books of defendants produced under a rule.</p> <p>The entries showed, as follows:</p> <p>“ By whom received, Everson, Preston & Co. | Plaintiffs’ name, j Everson, Preston & Co. Defendant’s name, Watt C. Bradford, Memphis, Tenn.</p> <p>To whom sent, John W. Wood, Memphis. When sent, June 2d 1865. Amount, $343.46, accept. 408.36 “</p> <p>842.31</p> <p>132.24 “ ’’</p> <p>In the ledger, under date June 21st 1865, the plaintiffs' are credited by the above drafts severally.</p> <p>The plaintiffs then rested.</p> <p>For the defendants, Nevin, their superintendent, testified that the business of defendants’ agency since 1865 was to advise their subscribers only, as to the mercantile standing of business men; the books given in evidence by plaintiffs were the books of Bradstreet, Hoffman & Co.; the defendants were not members of that firm ; the business of Bradstreet, Hoffman & Co. was to make collections and settle claims; they made collections through defendants’ office for two or three years; employed witness and others in defendants’ office; he believed plaintiffs and all other subscribers knew that Bradstreet, Hoffman & Co. were the collecting firm. As to the claims of plaintiffs, he consulted them and acted in the whole matter, as to directions to attorney, &c., under the explicit instructions of plaintiffs, and followed their instructions in detail; the claim was sent to J. W. Wood, of Memphis; he reported from time to time, and witness reported to plaintiffs, showed them every paper that he received; Wood was not the agent or attorney of the defendants; witness closed the business of Bradstreet, Hoffman & Co. by direction of the defendants; the office of defendants in Pittsburg was a branch office. J. M. Bradstreet was a member of both firms.</p> <p>The defendants then read the deposition of J. B. Woodward, Esq., of Memphis, in which he said that the reputation of Wood, in July 1865, was good; he was. an old lawyer; late in 1867 for the first, his reputation for honesty was called in question; in October 1867, deponent commenced proceedings against him to recover about $2000 which he had collected in 1866 for plaintiffs on these drafts from the estate of W. C. Bradford, the acceptor; deponent recovered against Wood a judgment which he removed to the Supreme Court; the case, owing to the disarrangement of the business of that court, had not been heard there, but it was expected it would be in May 1871; witness received a power of attorney from the plaintiffs to prosecute the suit. Wood offered to deponent to give real estate for the debt at a valuation to be fixed by appraisers chosen by the parties; he wrote to plaintiffs advising them to accept it, as it would be a good investment; to this deponent received no answer. He wrote again on the 24th of January 1869 on the same subject, and received an answer from plaintiffs, dated January 31st. Deponent did not communicate Wood’s proposition to the defendants; the property offered had increased in value much beyond the debt. Deponent was of opinion that the Supreme Court would affirm the judgment against Wood, and if so, the money could be made. The deponent called on Wood for payment in company with J. De Soto, an agent of defendants, and at his resquest; deponent received no instructions from plaintiffs; his correspondence had been with the defendants. Deponent was acting as attorney of record for plaintiffs at the solicitation of De Soto; the defendants had no cause of action against Wood; deponent procured plaintiffs’ power of attorney through defendants, in order to prosecute the suit as attorney of record.</p> <p>The following is the power of attorney to J. B. Woodward:—</p> <p>“ Know all men by these presents, That we, Everson, Preston & Co., &c., have made J. B. Woodward, &c., our true and lawful attorney, for us and in our name, place and stead, to demand and receive of and from John W. Wood, attorney at law, all moneys belonging to us, and by him, said Wood, collected from Watt C. Bradford (now deceased), or from the personal representatives or estate of said Watt O. Bradford ; and upon the receipt of said moneys in our name and stead a full acquittance and discharge to give, execute and deliver to John W. Wood; hereby ratifying whatever our said attorney, J. B. Woodward, shall lawfully do in the premises by virtue hereof. Should the said John W. Wood refuse or neglect to pay over to said J. B..Woodward said moneys upon due demand, we hereby authorize our said attorney to take any and all legal measures to compel such payment.”</p> <p>Letter of plaintiffs referred to Woodward’s deposition:—</p> <p>“Pittsburg, January 31st 1868.</p> <p>“ J. B. WoodAvard, Esq., Memphis, Tenn. — Yours of 24th inst. has been duly received, and in ansAver would say we are thankful to you for the information contained therein. We leave the matter entirely in the hands of Bradstreet & Sons, as we hold them for the amount of our claim against Watt O. Bradford’s estate, they having collected the same through their attorney there.</p> <p>“ Respectfully yours,</p> <p>“Everson, Preston & Co.”</p> <p>In rebuttal Preston, one of the plaintiffs, testified that the power of attorney was executed at the instance of some one representing defendants for the purpose of enabling defendant’s attorney in Memphis to collect the money from Wood, and for that purpose only; and he got a receipt for the power of attorney at the defendants’ office — the person who signed the receipt and to whom he gave the power of attorney, appeared to be in charge of the office; witness never gave any directions to Nevin about collecting the money. Plaintiffs received a letter from defendants on the subject of the collection of the drafts.</p> <p>The plaintiffs then under objection — that the papers were not signed by defendants — and exception, gave in evidence the receipt and letter, written on a printed letter-head of defendants, as follows :—</p> <p>“ Received, August 30th 1867, of Everson, Preston & Co., their power of attorney, executed at our instance and request, and addressed to our agent at Memphis, Tennessee, J. B. Woodward, authorizing him to receive from John P. Wood certain moneys received by him from Watt C. Bradford or his estate, and the collection of which we haye undertaken.</p> <p>J. M. Bradstreet & Son, per D. W. .Dickey.”</p> <p>“ J. M. Bradstreet & Son. Improved Mercantile Agency.</p> <p>“ Pittsburg, February 27th 1868.</p> <p>“ Messrs. Everson, Preston & Co.</p> <p>“ Gentlemen : Enclosed please find the last letter we have received from our attorney at Memphis, in regard to your claim v. W. C. Bradford. We are doing all in our power to compel Wood, the former attorney, to pay over the money he obtained, and hope to be successful.</p> <p>“Very respectfully, yours,</p> <p>“ J. M. Bradstreet & Son,</p> <p>Per E. H. Nevin, Jr., Sup’t.”</p> <p>The plaintiffs gave evidence further by a number of witnesses that they had never received any information from defendant, or knew otherwise that Bradstreet, Hoffman & Co. were the collecting firm; and that about the year 1870 they had seen in one of the defendants’ lists, which were furnished weekly to subscribers, that defendants were no longer collecting agents.</p> <p>The defendants gave evidence that Dickey, who signed the receipt of August 30th 1867, had no authority to do so, and that the letter of February 27th 1868 was written in the usual course of their business, simply to inform their customers how the business was progressing.</p> <p>The following were defendants’ points, with their answers:—</p> <p>2. If the defendants’ office and business in Pittsburg was conducted by their agent, and the plaintiffs’ claims for collection were received by such agent or agents, the plaintiffs must first show that the acceptance and undertaking of such collections was within the authority of such agent or agents, before they can hold defendants responsible for any default in relation thereto.</p> <p>Answer: ‘‘This point is affirmed. It is incumbent on the plaintiffs to satisfy you that undertaking to make such collections was within the scope of the agent’s authority, or that the act of the agent in undertaking the collection was subsequently sanctioned or approved by the defendants. The evidence shows that the defendants held themselves out to the public as a ‘ Mercantile Agency,’ having branch offices at different points. The title employed by them to indicate the business in which they are engaged, is very general and comprehensive, and persons dealing with them might readily suppose that it included collecting, but we do not say that it did. The only evidence we have as to the character of the business transacted by other agencies of this description is that given in relation to the Mercantile Agency of Dunn & Co., of this city. The testimony tends to show that they (Dunn & Co.) undertook collections in connection with their other business; that the plaintiffs had business transactions with them, and were solicited to transfer their patronage, or part of it, to defendants’ agency. If you find from the evidence that defendants held themselves out to the public as a ‘ Mercantile Agency,’ and that making collections was within the scope of such business, and defendants had no notice to the contrary, then the defendants would be liable for the acts of their superintendent and agents in charge of the branch-office here in undertaking to make collections for the plaintiffs.”</p> <p>4. That defendants’ agent communicated with plaintiffs and others about plaintiffs’ collections in the name of defendants, and gave information relating thereto at and from an office in the charge and control of defendants’ agent, are not evidence of authority in such agent to take such collections, or to use defendants’ name.</p> <p>Answer: “ In connection with what has been said in answer to the 2d point, this point is affirmed.”</p> <p>6. If the plaintiffs placed their collections in Memphis in the hands of an agent of defendants at Pittsburg, who with plaintiffs’ knowledge was agent also for a purely collecting agency, the defendants’ principal business being notoriously of a different character, the presumption is that the plaintiffs were dealing with the said collecting agency only.</p> <p>Answer: “ If you find the facts as stated in this point, it is affirmed. The receipts and other papers in evidence tend to show that the plaintiffs were dealing with defendants, J. M. Bradstreet & Son, and not with another independent collecting agency; .but the facts are for you.”</p> <p>7. If the plaintiffs placed their acceptances of Watt C. Bradford, of Memphis, Tennessee, in the hands of some person in the office of defendants’ agent, at Pittsburg, for collection, and knew that such agent’s personal attention and direct service in such collection would not in the usual course of business be given to it at Memphis,'’ and that the employment of an attorney, at Memphis, to attend to it was necessary, or the proper and usual course of doing such business, then the plaintiffs thereby made either such person or defendants their agent therein, with power to employ an attorney or sub-agent therein, at Memphis, and their immediate agent, under such authority, would not be responsible for any default of said sub-agent, if selected with reasonable care and diligence.</p> <p>8. If the plaintiffs placed their acceptances in the hands of the defendants, at Pittsburg, for collection at Memphis, and defendants promptly sent them to an attorney of good standing, .at Memphis, and plaintiffs were at the time informed thereof, and were from time to time, for two years or more thereafter, informed of the progress of a suit carried on by such attorney, in plaintiffs’ name, to enforce the collection, then, if plaintiffs never objected thereto, their conduct would amount to a ratification of defendants’ acts, and the defendants are not liable for any subsequent default of said attorney.</p> <p>The 7th and 8th points were refused.</p> <p>9. If plaintiffs gave defendants, at Pittsburg, acceptances to collect at Memphis, Tennessee, they thereby constituted defendants their agents therein, and such agents are not responsible for any loss, so long as they have used the usual diligence and conducted themselves according to the usual course of doing such business.</p> <p>Answer: “ If the party employed by defendants to collect the acceptances in Memphis, Tennessee, received the money, and failed or refused to pay it over, defendants are answerable to plaintiffs, provided, you find that defendants’ agent here acted within the scope of his authority, in undertaking the collection, or defendants subsequently recognised or approved his act. There is some evidence tending to show that one of defendants’ agents, not directly connected with their office here, gave some attention to the claim in Tennessee.”</p> <p>10. If plaintiffs have a suit pending against said attorney at Memphis, for the money lie has collected and retained, they have thereby ratified defendants’ acts in the matter, and cannot sustain this suit.</p> <p>11. If plaintiffs have such suit in their name undetermined and with prospect of recovery, they may have suffered no actual damage for which defendants would be liable in this action, and hence they cannot recover.</p> <p>12. The evidence being uncontradicted, that there is a. suit pending in the name of the plaintiffs against John W. Wood, the defaulting attorney, now pending in the Supreme Court of Tennessee, on an appeal or writ of error taken by said Wood from a judgment against him in the court below, and that there is a prospect of plaintiffs’ recovering all their money, the plaintiffs cannot sustain this action.</p> <p>13. It is not shown that defendants’ business included making collections, nor that they personally were aware of the taking and prosecuting of plaintiffs’ claims, while it is shown that at that time and long before, defendants’ agents, in their office at Pittsburg, were acting as agents of another and different firm, whose sole business was the taking and making of collections, and that such agents entered said claims in the books of said collecting firm, and before Wood’s default in settling the business of said collecting firm, treated the collection of said claims as part thereof, such evidence is affirmative proof that defendants are not responsible for said claims, notwithstanding that said agents may, through carelessness or mistake, have used defendants’ name in receipting for, or corresponding about said claim.</p> <p>14. There is no evidence, or any right, or authority of defendants’ agents to have received plaintiffs’ claims in defendants’ name or on their behalf, or in any way to connect them or their names with anything done about said claims.</p> <p>The 10th to 14th points were refused.</p> <p>The court further charged :—</p> <p>* * * [“If it was part of the business of a ‘mercantile agency’ to receive collections, then such being the name which the defendants publicly give their business, the receiving collections is presumed to be a part of their business; and it appearing that their business was transacted by agents, those agents are presumed to have the requisite authority for the full and proper transaction of that business; and then the plaintiffs, relying thereon and not otherwise informed, are entitled to hold defendants answerable for their drafts placed in the hands of defendants’ agent for collection. The first question then is, is the receiving of collections a part of the business of a ‘ mercantile agency,’ so that people would generally take it for granted that such was the fact ? If so, the defendants’ agents are presumed to have authority so to do. The name of defendants’ business, ‘ Mercantile Agency,’ is significant, and we think in public acceptation would be taken to include the business of receiving collections. It is also in evidence that Dunn & Co.’s ‘ Mercantile Agency’ — the only one, besides defendants’, of which we have any testimony — received collections as a part of their business. You will take these facts into consideration, and if you find affirmatively on this point, then, if you believe the other evidence before you, the defendants are liable.]</p> <p>“ If you do not so find, you will then consider whether the defendants did not subsequently ratify the acts of their agents. You have before you the receipt, in defendants’ name, for the drafts, and the receipt for the power of attorney in defendants’ name, 4 per D. W. Dickey,’ a clerk in the office under Mr. Nevin, defendants’ superintendent, both receipts delivered to the plaintiffs at the defendants’ Pittsburg office. You have the letters of Mr. Nevin to the plaintiffs, written about the collection, with defendants’ letter-heads, and as if by defendants, and signed in their name, ‘ per E. H. Nevin, Jr., superintendent,’ and you have before you the fact that an agent of defendants at Memphis, one De Soto, also actively participated in attempting to recover plaintiffs’ money. You will take all these things and all the evidence in the case together, and if you are satisfied therefrom that the defendants, subsequent to the receipt of the drafts, had knowledge that they had been received by their agent for collection, and acquiesced therein, and permitted their agents to perform the acts shown to have been done by them in the character of defendants’ agents, then the defendants are to be held as having ratified the acts of their agents.” * * *</p> <p>The verdict was for the plaintiff for $2436.80.</p> <p>The defendants removed the record to the Supreme Court, and assigned for error the admission of the evidence objected to; the answers to their points and the part of the charge enclosed in brackets.</p>

<p>1. Defendant, with the consent of a turnpike company, crossed their road with a railroad for his individual use, and raised the bed of the turnpike, passing over it with a bridge. It was the duty of defendant to keep the bridge in repair.</p> <p>2. The bridge was eighteen feet wide and ten feet long, and originally had rails on each side, which had decayed; the plaintiff was found about midnight on a dark night, lying under the bridge, hurt; he said he had fallen from the bridge, but made no other statement as to how he fell, &e. Held, the danger having arisen by the negligence of the defendant, that these facts were evidence for the jury that he had fallen for want of the rails, and that the burden was not on him to show that he was clear of contributory negligence.</p> <p>3. Beatty v. Gilmore, 4 Harris 463; Waters v. Wing, 9 P. E. Smith 211, distinguished.</p>

<p>1. M. and C. entered into partnership, M. contributing real estate at an estimated value, which was carried into the firm’s stock account to M.’s credit. This was in equity partnership property, the legal title remaining in M.</p> <p>2. M. reserved the right on dissolution not to be bound by the estimated value, and to withdraw the property. This was a provision to correct the valuation.</p> <p>3. During the partnership the buildings were burned and rebuilt by firm funds. M. withdrawing the real estate on dissolution would take it at its then value.</p> <p>4. The property having been carried into the stock account to M.’s credit, belonged with its accretions to the firm, to be accounted for as firm assets.</p>

<p>1. An award in ejectment showed a plain mistake in fact in misdescribing the premises; it should have been sent back to the referees by the court below for correction.</p> <p>2. The court below having entered judgment on the award, the Supreme Court reversed the judgment, that the award might be sent back to the referees for correction.</p> <p>3. Coleman v. Lukens, 3 W. & S. 37, distinguished.</p>

<p>Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1871, No. 115.</p> <p>This was an action of assumpsit brought December 24th 1869, by George- T. Miller and others against John McOloskey.</p> <p>The plaintiffs claimed under William L. Miller and the defendant under John Herron, William Herron and William Brown.</p> <p>On the 7th of April 1846, by articles of agreement of that date, Miller sold to the Herrons and Brown “ all the good merchantable coal lying and being in and under the plantation or tract of land occupied by the said Miller, and by him originally purchased from John Eritchman, excepting, &c. * * * with privilege to the said parties of the second part and their assigns of entering upon the land of the said Miller for the purpose of excavating and removing the said coal; of using exclusively the railroad fixtures, ropes and wagons now employed by the said Miller in and about his mine; of occupying and using the six cabins or tenements now erected on the premises belonging to the said Miller, also one undivided half of other ten cabins or tenements belonging in common to the said Miller and a certain William Noble, for the accommodation of their hands; of constructing such other houses as may be required from time to time for the same purpose, or for their own individual use in the prosecution of their business; of erecting and setting up at such points as they may deem most convenient for them, a saw-mill and store-house ; of enclosing and appropriating so much ground in and about the said several buildings as may be required for the full and profitable enjoyment thereof; of making openings and ditches wherever they may judge proper upon the premises of the said Miller, for the ventilation and draining of their pits and mines; of constructing coke ovens at suitable places within their discretion; of using the landing and shore along the river upon the premises of the said Miller for purposes of harbor and anchorage and of landing and unloading their boats, and finally of using and exercising all other privileges and immunities which may be essential to the full and complete enjoyment of any of the rights herein granted and conveyed: Provided, however, that the said parties of the second part, their executors, administrators or assigns, shall remove the said coal within the period of forty years from and after the date of these presents, and that at the expiration of the said term, or upon the removal of the said coal, which ever shall first happen, all the rights and privileges hereby granted shall cease and determine; the said parties of the second part being at liberty to remove all the erections which they may have made upon the said premises, leaving however the railroad fixtures and apparatus, also the same number of wagons as are now transferred to them for the use of the said Miller, his heirs and assigns, they being the owners of the land by which the said coal is covered. ■</p> <p>In consideration of all which the said parties of the second part do hereby jointly and severally covenant and agree to pay unto the said Miller, his executors, administrators and assigns, tibe sum of two hundred and fifty dollars per acre for every acre of coal so conveyed as aforesaid (in a number of instalments). * * * And the said party of the first part agrees, that upon the payment by the said parties of the second part of the first two instalments aforesaid, amounting in all to the sum of five thousand one hundred and sixty-five dollars and ninety-three cents, he will execute if required to the said parties of the second part a deed of conveyance of the whole of the lands purchased by him from the said John Fritchman, subject however to a lien for the balance of the purchase-money still remaining unpaid, in trust to secure them against any liens or encumbrances upon the said lands other than the said purchase-money to which their payments are to be applied aforesaid, and upon the further trust that they will reconvey to the said Miller, whenever the same and all other encumbrances existing at the time of the said conveyance shall have been by them fully discharged.”</p> <p>This action was brought to recover for the use and occupation of the premises and privileges mentioned in the articles, for the purpose of mining and removing coal other than that mentioned in them.</p> <p>The case was tried May 1st 1871, before Sterrett, P. J.</p> <p>The plaintiffs gave evidence that the defendant took out coal other than that underlying the Fritchman tract, and used the road, improvements, &c., granted by the agreement, for the purpose of doing so, and that there was coal still remaining in that tract.</p> <p>The defendant’s third point and its answer were :—</p> <p>“ Under the article of 7th April 1846, the defendant as assignee had a right to use and enjoy the privileges therein set forth for the purposes of mining and removing any coal owned by him, or for his own individual use, in the prosecution of his business as a coal merchant, for and during the period of forty years, or until all the coal in the tract described therein was removed.”</p> <p>Answer: “ This point is refused as regards other coal than that described in the agreement in evidence.”</p> <p>The court also charged that if the evidence justified it, the plaintiffs might recover in this form of action.</p> <p>The verdict was for the plaintiffs for $1384.44.</p> <p>The defendant removed the record to the Supreme Court, and there assigned for error the answer to his point and the instruction of the court.</p>

<p>Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1872, No. 115.</p> <p>Sterling Bonsall, on the 30th of June 1871, commenced an action of assumpsit against Joseph Kirkpatrick and James Lyons, trading as Kirkpatrick & Lyons, for breach of a contract by the defendants to sell the plaintiff 5000 barrels of petroleum.</p> <p>The case was tried April 2d 1872, before Collier, J. The plaintiff gave in evidence the contract, viz.:—</p> <p>“For and in consideration of the sum of $1000 to us in hand paid by Sterling Bonsall, Esq., the receipt of which is hereby acknowledged, we hereby bind and obligate ourselves to deliver to said Sterling Bonsall, or his assigns, should he, or they, call upon us to do so at any time during the first six months of 1871, five thousand barrels of good green merchantable crude petroleum, forty gallons to the barrel, gravity 40° to 46°, at a temperature of 60° Fahrenheit, either in bulk cars or hulk boats, at Pittsburg, Pa. If delivered by A. V. R. R., or W. P. R. R., buyers may designate any point of delivery on line of said roads, or any good landing on the Allegheny river, near Pittsburg, if delivered by bulk boats. If said oil is called for, this call becomes a contract, ten days’ notice shall be given, and said Sterling Bonsall, or his assigns, hereby agree to receive and pay for same, cash on delivery, at the rate of ten and a half cents per gallon on lots as gauged and delivered.</p> <p>“ One-half per cent, brokerage whether oil is delivered or not.</p> <p>Kirkpatrick & Lyons.</p> <p>Nov. 15th 1870.”</p> <p>Also notice as follows:—</p> <p>June 8th 1871.</p> <p>“ Messrs. Kirkpatrick & Lyons:</p> <p>“ Gentlemen: — Please take notice that I hold a contract with you, to deliver to me five thousand barrels of good green merchantable crude petroleum, forty gallons to the barrel, gravity 40° to 46° degrees Fahrenheit, which you have by contract, dated November 15th 1870, agreed to deliver to me if called upon by me to do so, at any time during the first six months of 1871; either in bulk cars or bulk boats, at Pittsburg, Pa. I by this call upon you to deliver to me the said oil on the twenty-sixth day of June, A. d. 1871, according to your contract, a copy of which I annex to this call.</p> <p>“ I will pay you cash for said oil on delivery.</p> <p>Respectfully yours, Sterling Bonsall.”</p> <p>Plaintiff gave evidence of a tender on the 26th of June 1871, by him to Lyons, one of the defendants, of $21,000, for 5000 barrels of oil at 10J cents per gallon, a demand for delivery of the oil and refusal by defendants to deliver.</p> <p>The defendants then called the plaintiff, who testified:—</p> <p>“ Am plaintiff; was not a refiner when I entered into this contract; had no other contract at this time; had five call contracts for 5000 barrels of oil during this period. Had buyer’s option contract. All my contracts would amount to 40,000 barrels. It would require $168,000 to pay the oil. All my contracts matured from the 13th to the last of June. I had the $168,000 within my control, but not in cash. Had not sold the oil when I made up my mind to call. Not in the refining business, but am in the producing business. The Messrs. Gallagher Avere my agents here. Some of the .tenders I made myself. $42,000 in cash I had here. I would not have called them if the market price had not been below ten cents, unless after I made the call — then I Avould have taken them at any price.”</p> <p>The defendants proposed to ask the witness what contracts he had at the time he entered into this contract, maturing prior to 1st of January 1871; for the purpose of showing the magnitude of the plaintiff’s undertaking, in Avay of purchase of oil, to be followed by evidence of his financial inability to take and pay for the amount of oil specified in said contracts.</p> <p>This was objected to by the plaintiff, as not of the time of the transaction, and can throw no light on the issue.</p> <p>The offer was rejected and a bill of exceptions sealed.</p> <p>On cross-examination he said:—</p> <p>“ Am a dealer and producer of oil; been since 1864; did not settle any differences; was prepared to take the 25,000 barrels in June, and pay for them ; there wa3 no agreement to settle on differences, there certainly was none on mine. I bought the oil, and intended and expected, when I made the calls, to get the oil and not the differences. I made arrangements for $105,000 Avith the bank here. The buyer’s option contracts had been already refused, and I needed no money for them.”</p> <p>The evidence being closed, the defendants’ counsel requested the court to charge the jury, that the plaintiff could not recover upon the contract sued upon.</p> <p>This the court refused, and charged that the plaintiff was entitled to recover.</p> <p>The verdict was for the plaintiff for $5492.37.</p> <p>The defendants removed the record to the Supreme Court and there assigned for error, the refusal of their offer of evidence and the instruction to the jury.</p>

<p>1. An action lies on a parol contract for the sale of land.</p> <p>2. In the absence of fraud, the measure of damages is the money paid and expenses incurred on the faith of the bargain. If no consideration has been paid or expenses incurred, the damages are nominal.</p> <p>3. Where there has been fraud in the sale, damages are recoverable for the value of the bargain.</p> <p>4. The defendant agreed to purchase plaintiffs land which was to be sold at sheriff's sale, and reconvey to plaintiff if paid the purchase-money and interest in a year. In an action for damages for refusal to convey, the court charged that if defendant “ in bad faith refused to perform his agreement to reconvey,” &c., the measure of damages would be the difference between the value of the land and price paid for it by defendant. Held, to be error.</p>

<p>1. Monroe sold a mill to Frazier, leaving stock in it temporarily; he assigned policies on the mill and stock to Frazier, who agreed in case the mill and stock should he burned, to give Monroe $3000 he might receive from the insurance: afterwards the mill and Monroe’s stock in it were burned; Frazier received $493 for stock, $4137 for mill. Held, that he was liable to Monroe for $2500, the value of his stock.</p> <p>2. A contract so ambiguous as to require interpretation, may be considered in the light of the circumstances at the time to ascertain the parties’ meaning.</p> <p>3. Words or sentences not in the contract cannot be considered as there.</p> <p>4. This can be done only under the equitable head of fraud, accident or mistake ; this is reformation, not interpretation.</p>

<p>Error to the District Court of Allegheny county: No. 150, to October and November Term 1871.</p> <p>John Pearson and Mary his wife, to November Term 1870, brought an action on the case against The Pittsburg, Allegheny and Manchester Passenger Railway Company, for causing the death of their son by running over him by one of their cars.</p> <p>The only question considered by the Supreme Court was whether the negligence of the plaintiffs contributed to the death of the child.</p> <p>The child was but eighteen months old; being upon the street on which the railroad was located, one of the cars struck him, threw him down and passed over him: by reason of the hurt he died in four days after receiving it.</p> <p>The case was tried May 18th 1871, before Kirkpatrick, J.</p> <p>The testimony of Mrs. Pearson was that the child was in his father’s house; there was a board at the door of the house to prevent the child from getting out; he was under the charge of a sister about thirteen years old; she was sent on an errand; whilst this child was absent the mother being about to scrub the floor, took the board from the door and the child thus got out of the house; the mother told an older son to go for him; the boy went out and came back saying that he was in company with Lizzie Orr, a child about eight years old; the mother then supposed he was safe; the child left Lizzie Orr and in a very short time, about three minutes, after he had escaped from the house, the disaster happened. The mother was not in the habit of permitting the child to go out by itself; the sister “was always with him.”</p> <p>This statement, with the defendants’ points and the opinion of the Supreme Court, will sufficiently exhibit the case.</p> <p>The defendants’ points and their answers are as follows:—</p> <p>2. If they find, from the evidence, that William Pearson, aged eighteen months, son of plaintiffs, was permitted to leave the house and presence of his parents, and go upon the public highway, and across the track of defendant’s railway, without a protector, and in consequence thereof the child’s arm was passed over and injured by one of the wheels of a passing car, the plaintiffs were guilty of contributing negligence, and cannot recover in this action.</p> <p>Answer: “Affirmed.”</p> <p>8. If the jury find that plaintiffs allowed their child, aged eighteen months, to go upon Rebecca street, a public highway, and upon and across the track of defendants’ railway, without a protector, and that the child, whilst alone and unguarded, was injured by a car passing in the usual manner upon said track, the plaintiff cannot recover in this action, even if the defendant or their employees were also guilty of negligence which contributed to the accident and injury complained of, and the verdict of the jury should be for the defendants.</p> <p>Answer: “Affirmed.” But is there any evidence that the child was {allowed ’ to go upon Rebecca street, the public highway ? We leave it for you. to say, from all the evidence in the case, was or was not, the permitting it to go out upon the alley, permitting it to go as claimed in this point? We leave it to you. If you find that it was, or if you conclude, from all the facts in evidence, that plaintiffs allowed the child to go, as claimed in this point, as already stated, the point is affirmed. Everything as to the law claimed by the point, depends upon the facts as claimed, and which you are to find. We leave their finding without any intimation from the court to you, as jurors, from all the evidence in the case.”</p> <p>4. The fact that the child of plaintiffs was found alone and unprotected on a public street, in Allegheny City, at the side of the track of defendants’ railway, at the time and place where it is alleged the injuries were sustained, is presumptive evidence of the contributory negligence of plaintiffs, and he cannot recover.</p> <p>Answer: “ Refused. We leave it to the jury to say w'hat was contributory negligence, under all the evidence and circumstances in the case.”</p> <p>The verdict was for the plaintiffs for $900.</p> <p>The defendants on the removal of the record to the Supreme Court assigned for error the answers of the court to their points.</p>

<p>Error to the Court of Common Pleas of Venango county: No. 26, to October and November Term 1871.</p> <p>This was an action on the case commenced, September 3d 1869, by the Bliven Petroleum Company against the Union Petroleum Company.</p> <p>The declaration was that the plaintiffs were the owners in fee of “ certain incorporeal hereditaments, to wit, the right and privilege of digging and boring for salt, oil and minerals, upon certain lots, parts of a tract of land known as the John McClintock farm, * * * with the right of ingress and egress, * * * for the purpose of digging for said salt, oil and minerals, * * * giving to John McClintock one-third part thereof. Yet the defendants * * * entered on said lots * * * and into the possession of certain oil-wells which the plaintiffs had thereon and excluded the plaintiffs therefrom and from the enjoyment of their said right and privilege and obtained and collected large quantities of oil * * * which the plaintiffs could have collected for their own use.”</p> <p>The defendants pleaded “Not guilty.”</p> <p>The cause was tried before Trunkey, P. J., November 8th 1870.</p> <p>By the plaintiffs’ evidence it appeared that the land upon which the wells were, belonged to John McClintock and was situated in Cornplanter township, Venango county.</p> <p>On the 26th of September 1859, an agreement was entered into between John McClintock of the first part, and Bradford R. Alden and Cornelius S. Chase of the second part, as follows :—</p> <p>“ That the said party of the first part, for himself, &c., agrees to and with the said second party, their heirs, &c., to lease, and by these presents has leased, unto the said second party, &c., the exclusive right and privilege of boring for salt, oil or minerals upon his farm, situate in Cornplanter township, &c., and upon which the said first party now resides, being two hundred acres, more or less, with the right of access to and from such places as may be selected by the party of the second part for the purposes aforesaid, and the right to build such houses and buildings as shall be necessary to carry on the work’comfortably ; said boring to be done so as to do the least possible injury to the farm.</p> <p>“ And the said party of the second part, for themselves, &c., agrees to and with the said party of the first part, that they will give to the said first party for the privileges hereinbefore granted, the sum of one hundred and fifty dollars, and the just and full one-third part of all the oil and minerals raised and the salt made from and upon the premises aforesaid, and that the work shall be commenced on or before the first day of June, eighteen hundred and sixty, and that the holes shall be sunk to a suitable depth to satisfy the parties as to their practicability and profit for oil. And it is agreed that this lease shall continue until the parties, their heirs or assigns, shall mutually agree to annul it. * * * It is further understood, that the obligations to bore, of this lease, on the part of the party of the second part, shall be fulfilled when they have made one boring of sufficient depth to be profitable to them for oil, or when they shall have made one boring of seventy feet depth, if practicable, and shall pay to the party of the first part the sum of seventy-five dollars, and the same obligations to bore shall be fulfilled at any time by the payment to the party of the first part of the sum of one hundred dollars.”</p> <p>By a partition subsequently the title became vested in Alden alone. On the 28th of January 1865, Alden conveyed to the Bliven Petroleum Company, the plaintiff.</p> <p>The plaintiffs gave evidence also, that the defendants had occupied by their agents, a portion of the land leased to Alden and Chase, had worked the wells put down by Alden, and excluded the plaintiffs from occupying it; — also of the quantity and value of the oil raised and appropriated by the defendants. They gave evidence also as to the lines of the land included in their lease. There was evidence also, that Allen Wright had a lease from Alden and Chase, afterwards passed to the “Allen Wright Oil Co.,” and sunk wells known as No. 81 and No. 84, on what was claimed to be covered by the lease to Alden and Chase, The defendants claimed the wells to be on their lands : — this suit is brought for the disturbance of the plaintiffs’ rights and privileges in these wells.</p> <p>The defendants gave in evidence the records of the Circuit Court of the United States for the Western District of Pennsylvania, in an action of ejectment, in which the Union Petroleum Company, a citizen and corporation of the state of New York, were plaintiffs, and George King, S. A. Lyon and R. Green, citizens of Pennsylvania, were defendants. The record showed as follows :</p> <p>The marshal returned the writ served on the defendants, and also on D. F. Myer, George Crippin and Samuel Davidson.</p> <p>The premises described in the writ were “a strip of land in Cornplanter township, Venango county, containing 6 acres; being 160 perches long by 6 perches and 2-10 wide; bounded on the north by the Rynd farm, on the east by other land of this plaintiff, on the south by the Buchanan farm and on the west by land known as the McClintock farm.”</p> <p>October 6th 1865, a rule was taken on the defendants to appear in six weeks. The marshal returned that the rule had been duly served upon King, Lyon and Green.</p> <p>An affidavit of defence was made by Allen Wright, a director of the Allen Wright Oil Company, “which has the lease, management and control of the land and property from which the plaintiffs seek to eject the defendants,” and averred that the defendants had “ a just and legal defence on the merits.”</p> <p>This affidavit was filed November 29th 1865.</p> <p>On the 5th of March 1866, the defendants pleaded “ Not guilty.” On' the 10th of March 1866, the court appointed William Hilands “to survey the claims of both parties and to ascertain the quantity and interference of each party, and to note such circumstances as may affect or be deemed material to the title of either of-the parties.”</p> <p>The jury found for the plaintiffs, “ and fixed the western line of the plaintiffs’ land as the line run by William Hilands, the artist appointed by the court, and marked on his plot by the signature of the clerk of the court, which plot is now filed of record as part of the verdict in the case,” &c.</p> <p>A writ of habere facias was issued on the 25th of January 1867, to which the marshal returned:—</p> <p>“ And now, this 31st day of January 1867, entered upon the within named premises, ‘ defendants all being absent,’ and placed E. W. Hinds, agent Union Petroleum Company of New York, in full possession of same. No property of the defendants found.”</p> <p>The defendants then gave in evidence the map made by Hilands under the direction of the Circuit Court; also deed, dated May 19th 1860, from John McClintock to John Nelson McComber, granting to McComber for the consideration of ¡$1500, a piece of land in Cornplanter township, beginning at a black-oak, the southeast corner of McClintoek’s farm, “ thence north, &c., to the north-east corner thereof, thence west 35 chains and 64 links or far enough so that a line drawn south through said lot shall contain 130 acres, and thence south or to the Buchanan farm, thence east, &c., to the beginning, containing 130 acres.” They then gave evidence, tracing this title to the defendants on the 29th of June 1864. They gave evidence that McClintock had contracted by articles for the sale of this land to Richard Dempsey, who sold his interest to McComber, and the deed made as above stated directly from McClintock to McComber. The evidence was that, at the time of the contract between McClintock and Dempsey, the land was unimproved and in wood, and was so when sold by Dempsey to McComber. Hilands testified that according to the line run by him, well 84 would be within the claim of the defendants, and that the line ran through well 81. There was evidence of a line run by Irvine, which put both wells on the plaintiffs’ claim; and also of acquiescence in that line by McClintock, Dempsey and McComber, predecessors in title to the defendants, and that the plaintiffs had been using the wells until the defendants were put into possession by the habere facias from the Circuit Court of the United States.</p> <p>The charge of the court and the defendants’ points and answers following, with the foregoing statement, will sufficiently exhibit the case.</p> <p>The court charged:—</p> <p>“ This action is for the recovery of damages plaintiffs allege they have suffered by reason of a disturbance or hindrance of their rights to enter and take oil from a tract of land owned by McClintock — I speak of him as the owner, for he contracted as such and so conveyed portions of the tract — and others who were interested with him, subsequently released to his grantees, confirming his respective contracts and conveyances. It is unnecessary to say anything about the title which was vested in John McClintock, for both parties claim under him. The plaintiffs claim under the articles of agreement dated September 26th 1859, with its supplement, made by Alden and Chase. The defendants claim under a deed by McClintock to J. Nelson McComber, dated May 19th 1860. Neither party questions the right of the other under their respective grants. It is not denied that the right of Alden and Chase, so far as relates to this action, have become vested in the plaintiffs, nor that the title of J. Nelson McComber is now vested in defendants. You observe at once, that the contest is not about the plaintiffs’ right to take oil from the land of McClintock, nor as to the validity of' the defendants’ title to the land embraced in the deed to McComber, but is as to the true location of the division line between the part sold to McComber and the balance of the tract.</p> <p>“As a rule, known landmarks and adjoiners on the ground bounding a tract of land conveyed, control the courses and distances in the deed; if there is a difference between the description in the deed and the marks on the ground, the latter govern; when there are no marks on the ground, or certain adjoiners, then the description in the deed is conclusive. A conveyance of a certain number of acres off one side of a tract of land, when there is no line of division marked, entitles the grantee to the entire quantity conveyed, as called for in the deed. If there was a survey and the division line distinctly marked on the ground, and the deed apparently made with reference to the survey and line, in the absence of other evidence, the line so marked bounds the land conveyed.</p> <p>“ The land in dispute is a piece a few rods wide, extending across the McClintock tract. Prior to October 16th 1866, it seems that the plaintiffs were exercising their alleged right on this land, and had possession of so much of the surface as was necessary to the enjoyment of the grant, their lessees actually operating and producing oil; and McClintock had possession for all other purposes. Since that date the defendants have been in possession, and they claim the right to hold it for all purposes, including operations for producing oil.</p> <p>“The plaintiffs allege that defendants have obstructed and hindered them from exercising any right on the land since the fall of 1866. How is this ? for if you are not satisfied from the evidence of such obstruction and hindrance, there can be no recovery. This is not an action of ejectment to recover possession of the land, nor trespass for injury done to plaintiffs’ possession; but case for obstructing and hindering the plaintiffs in the exercise of an alleged right; and if no obstruction or hindrance, your verdict will be for the defendants.</p> <p>“ Had McClintock himself interfered with plaintiffs’ right to enter and take oil, the remedy would be the same as that now sought to . be enforced against defendants. If he were asserting and attempting to enforce his rights to the possession of the soil, his remedy would be ejectment or trespass. For an injury done to the owners of an easement or incorporeal hereditament, case is the remedy.</p> <p>“ If you find that defendants, having possession of the land since the fall of 1866, have prevented the plaintiffs and their agents from exercising the right to search and obtain oil therefrom, the next inquiry is as to the title of the disputed land. From the evidence, you are likely to find that McClintock in 1857 or 1858, by agreement in writing, contracted to sell and convey unto Richard Dempsey one hundred and thirty acres of land and allowance, off the east end of the tract, and that Dempsey by oral agreement sold his equitable title to MeComber, to whom McClintock made the deed, dated 19th of May 1860, at Dempsey’s request. Before the execution of this deed, McClintock and Dempsey agreed that Irwin should survey the land, and he did so, McClintock and Dempsey’s father being present and assisting. If this survey was not correct, either could have had it resurveyed. Both knew the manner in which it was made, or could have known, Dempsey having employed his father to assist in making it. If the surveyor was acquainted with and knew the distance of the tract line, as measured on the ground, and for this reason only measured one line to ascertain the place to mark the line of division, it was a sufficient survey, and binding if acquiesced in by the parties. Was this survey and the line marked on the ground by Irwin, referred to as the boundary in the deed ? At that time there had been no other survey, no other but the one division line was marked.</p> <p>“ The Hilands line was not run until after the dispute and commencement of the suit in the Circuit Court of the United States.</p> <p>“ You will remember the testimony of McComber, who testifies that the line was spoken of at the time of the delivery of the deed, and McClintock agreed that if it was not far enough west to include the quantity, it should be changed. Do you find this to be the fact ? If so, the defendants have a right to the quantity, the same as if no line were marked. In determining this question, you judge of the credibility of witnesses, and consider every fact proven that throws any light upon it. The deed gives the distance of each line from corner to corner, and as a part of the description adds that one line should go far enough to include the quantity. If there was no line marked on the ground, or if it was agreed that the marked line should bo changed, if not including the quantity, the defendants have a right to a line that will include it.</p> <p>“ But if there was no such agreement, and the survey made and line marked, you may infer that the deed was in reference thereto. In this connection you will consider how the parties claimed and occupied after their making the deed.</p> <p>“ The plaintiffs allege that McClintock held possession and occupied up to this line without objection till near the time of the commencement of the suit in the United States Court, and that McComber, and those holding under him, only claimed, cut timber, improved and occupied up to this line for a number of years. Is this allegation true or false ? If true, such acts of the parties will be considered as tending, with other evidence, to show the marked .line was referred to in the deed. If false, there will be the greater reason to credit the testimony of McComber as to what he says of the changing of the line so as to include the quantity. If you find that the survey of Irwin was satisfactory to McClintock and Dempsey, that the deed was made in reference to that survey, :and the line of division marked on the ground, and that McClintock and McComber, and those holding under them, recognised it, occupied .and claimed to it, as the true line, for several years, it ought not to he disturbed, even if it be found that there is not the entire quantity called for embraced in the boundaries. Having made these remarks, that you may better understand the case, the answer to the points will be submitted. .Should you find for the plaintiffs, the remaining question for you is the amount of damages. The damages will not exceed the actual injury done to the plaintiffs. The burden of proof is on the plaintiffs to show the extent of injury done, and you will not allow them more than a fair compensation for such injury ; although it may be difficult to prove, they cannot recover more than is proved.</p> <p>“ In estimating the damages you will allow only for the oil taken, which belonged to the plaintiffs, and not for the part belonging to their lessees.”</p> <p>The defendants’ points and their answers were :—</p> <p>1. The certified copy of the record of the Circuit Court of the United States, in the case of the Union Petroleum Company against George King, L. Lyon, R. Green and others, said record being in evidence and being ejectment and for the land upon which the trespass or disturbance is alleged by the plaintiffs to have been committed, and the said record showing that the plaintiffs, the Union Petroleum Company, recovered said land and were put in possession by the United States marshal, the defendants would be rightfully in possession, and could not be either trespassers or disturbers by reason of said possession, acquired by law and the judgment of a court having jurisdiction of the subject-matter and the parties.</p> <p>“ Answer: In reference to the facts in this case, answered in the negative. The judgment in that case is conclusive on all the parties and their privies. Had the plaintiffs, in this case been a party to that action, there could be no recovery in the present action. But the Bliven Petroleum Company, or any one under whom they claim, or their lessees, the Allen Wright Oil Company, are not parties to that suit in ejectment, and are not bound by the judgment. The real owner of the land, or of an interest therein, shall not be defrauded of his title by a suit and recovery whereof he had no legal notice. The owner of the land ought to' be made a party by the service of the writ, or should not be deprived of his right, by any judgment thereon. As to King, Lyon, Green and the other defendants, the return of service does not show they were tenants of the plaintiffs, the Bliven Petroleum Company. But the judgment is conclusive as to them, until reversed or set aside by the proper tribunal. Were they, or those under them, the plaintiffs, there could be no recovery here by anything done by the defendants, up to the Hilands line. That verdict and judgment fixed the western boundary and protected the defendants against the parties, but in no particular as against those who were not parties or privies.”</p> <p>2. The service of the writ on the defendants, George King and others, and shown by said record of the Circuit Court of the United States to have been served upon the tenants in possession, is evidence that they were the persons in actual possession.</p> <p>6. The plaintiffs cannot recover in this form of action, unless they show to the satisfaction of the jury, that they were in actual possession of the premises, upon which the disturbance is alleged to have occurred; and if the testimony of Allen Wright and Nelson (witnesses called by the plaintiffs) is believed, and it is not contradicted, the Allen Wright Oil Company was in possession at the time the acts complained of took place, and Allen Wright testifies that he and his associates sunk wells No. 81 and 84, pumped them for more than six months, and then transferred their interest and possession to the Allen Wright Oil Company. If this testimony is believed the plaintiff has not been in possession and cannot recover.</p> <p>Answered in the negative.</p> <p>The defendants proposed to send out with the jury the certified copy of the record in ejectment, in the United States Circuit Court, including as thereto attached, all affidavits, depositions and other copies of papers, to which plaintiffs objected. The court refused to permit the record, with such papers attached, to be sent out with the jury, and at the request of defendants sealed bill of exceptions.</p> <p>The jury found a verdict for plaintiffs for $8190.</p> <p>The defendants took out a writ of error.</p> <p>They assigned for error the answers to the defendants’ points, submitting to the jury the question of damages, there being no evidence of injury to the plaintiffs, and the refusal to allow the record of the Circuit Court to go out with the jury.</p>

<p>1 Myers owning land, subject to a mortgage to Chase, conveyed to Abbott, who conveyed to Kasson for a gross sum and took from him a mortgage for the whole purchase-money; Kasson paid Chase the amount of his mortgage and took an assignment to Dudley, who assigned to Kasson’s wife. The land was sold by the sheriff to Abbott. In a scire facias by Mrs. Kasson on the first mortgage against Abbott as terre-tenant, Held, that evidence was irrelevant, that when Kasson paid the mortgage to Chase it was agreed between them that its amount should be applied on Kasson’s purchase-money mortgage, Abbott being bound to discharge the Chase mortgage as a prior encumbrance.</p> <p>2. The rule that payment by a mortgagor is an extinguishment, does not obtain where the payment is of an encumbrance existing before the conveyance to him.</p>

<p>1. Land was sold by parol. The vendees took receipts from the vendor for the purchase-money, stating the amount paid to be for the u Fleming farm on French creek.” Held to be a sufficiently certain description.</p> <p>2. Canfield, by payment of purchase-money, was equitable owner of the *land, and sold to Ross, taking his receipt referring to the land, for the purchase-money. A deed was made to Canfield. Afterwards judgment</p> <p>was entered against him, and the land sold by the sheriff as Canfield’s. Announcement at the sheriff’s sale of Ross’s title, and other facts in the case, evidence for jury of notice to put the purchaser on inquiry.</p>

<p>1. The title of an act was “An Act relating to the liens of mechanics, material-men and laborers upon leasehold estates, &c.;” one section extended the liens to freeholds : Held tobe unconstitutional, “freeholds” not being a subject clearly expressed in the title.</p> <p>2. “ Leaseholds ” excludes estates of a higher grade.</p> <p>3. The title of an act should be so certain as not to mislead.</p> <p>4. Blood v. Mereilliott, 3 P. P. Smith 391, limited.</p>

<p>Error to the Court of Common Pleas of Erie county: No. 137, to October and November Term 1871.</p> <p>This was a scire facias on a lien for a municipal claim issued February 20th 1870, by the city of Erie against a piece of land fronting on Peach street, and Jacob Bootz owner. The lien was for the amount assessed for making a pavement in Peach street. The city of Erie was incorporated by Act of May 1st 1861.</p> <p>Sect. 1. Authorizes the city councils “ to cause to be graded, paved, macadamized, repaired or otherwise improved, any public street or part thereof, which is now or may hereafter be laid out and opened in said city, and have the said street, or part of street, set with curbstone; and * * to provide, by ordinance, for the levy and collection of the cost and expense of work and materials used therefor, from the owners of the property bounded by and abutting on said street, or part of street, by an equal assessment on said property in proportion to the number of feet the same fronts on said street, or part of street: Provided, That said councils shall not order any street, or part of street, to be paved, graded-, macadamized or set with curbstone, except upon the petition of a majority of the persons holding or owning property on said street, or part of street, so proposed to be graded, macadamized or set with curbstone.</p> <p>“ Sect. 2. When the said councils shall, by ordinance, direct the grading, &c., the question whether a majority of persons holding or owning property thereon have petitioned therefor, shall cease and determine: Provided, That no ordinance for any of the above-named purposes shall be passed, until--days’ notice of the improvement prayed for has been given in the official paper of the city.”</p> <p>The charter was amended April 30th 1864, which provided,</p> <p>Sect. 15. That the said councils shall have power to order the paving of any street, or part of street, in said city by a vote of two-thirds of the members elected to each council, without the petition, or proceedings thereon, now required by the acts relating thereto.</p> <p>A further supplement of April 2d 1868 provides:—</p> <p>Sect. 13. That the mayor and councils shall have the power to construct sewers along any of the squares or blocks of the streets of the said city, and make pavements on the same, whenever the majority of the owners of property on both sides and facing said streets shall petition for the same, and not otherwise, except when the ordinance directing the same shall provide for payment of the cost thereof out of the general funds of the city.</p> <p>Sect. 15. So much of any Act of Assembly as conflicts with the foregoing act, is hereby repealed.</p> <p>The cause was tried, April 4th 1871, before Wetmore, P. J.</p> <p>The plaintiff gave in evidence:—</p> <p>Petition of citizens on Peach street for paving that street which was referred to a committee of each council, May 11th 1868; publication May 12th of these proceedings in the “ Erie City Dispatch,” the official paper of councils; report of the committees May 25th that a majority of owners of real estate on Peach street were in favor of the pavement; ordinance June 2d, directing paving of Peach street and the assessment of the cost on the owners of the real estate fronting on the street: publication of subsequent proceedings of councils in relation to the pavement.</p> <p>Plaintiff gave evidence also of the cost of the pavement, the assessment on defendants’ property, demand of payment from defendant and entry of lien, amounting to $527.10; and rested.</p> <p>The defendant offered evidence for the purpose of showing that the petitions for paving did not contain a majority of owners of property.</p> <p>This offer was objected to by plaintiff, admitted by the court and a bill of exceptions sealed.</p> <p>He then gave evidence in accordance with his offer.</p> <p>■ The plaintiff submitted these points which were refused :—</p> <p>2. The city councils being a legislative body, the presumption of law is, that all the law requires to be done, has been done that related to the enactment of ordinances and the levying of taxes for municipal purposes.</p> <p>3. The defendant and others having failed to take the proper and necessary steps, as provided by law, for remonstrating against the enactment of the ordinance for the pavement of Peach street, he is now estopped from denying that a majority of the property-owners did sign the petition asking for the passage of said ordinance for the purpose aforesaid.</p> <p>4. The defendant cannot, after having filed a plea in bar, take any advantage of any irregularities in the filing of the lien. The same should be taken advantage of by motion to strike off lien, or by demurrer.</p> <p>5. The defendant enjoying all the advantages arising from said improvement, and having neglected to put the city authorities on their guard in the manner provided by law, cannot at this late date under the pleadings, claim that the ordinance for paving said street, was irregularly enacted.</p> <p>6. The reputed owner of property and in possession, on and along a street, would have the right to sign a petition for the paving of said street, and it would not be incumbent on the plaintiff to show actual title in the party so signing.</p> <p>7. The title of property being in the wife, the law treats the husband as her agent, and any agreement made by him for the improvement of her estate, would be binding on her. More especially if while said improvement is going on, she quietly acquiesces in the same and gives the party no notice.</p> <p>The defendant submitted these points which were affirmed:—</p> <p>1. To give the councils jurisdiction of the subject-matter, the petition asking for the making of the pavement, must be signed by a majority of the persons holding or owning property on that part of the street proposed to be paved. If the jury find from the evidence that said petition was not signed by a majority of persons holding or owning property on Peach street, between the north side of the Public Square and Fifteenth street, the plaintiff cannot recover.</p> <p>2. If the jury find from the evidence that there are the names of persons on the petition, in whom there was not, at the time of signing any estate in fee simple, fee tail, for life, or a perpetual leasehold, or for a term of years, by lease or otherwise, not less than for twenty years, such names, if any, must be excluded from the count.</p> <p>4. If the jury find that there was not a majority of the persons holding or owning property on Peach street between the north side of the Public Square and Fifteenth street, signed the petition for the making of said pavement, the council had no jurisdiction and all their action in the premises was null and void.</p> <p>The verdict was for the defendant. The plaintiff took a writ of error, assigning for error, the denial of plaintiff’s points and the affirmance of the defendant’s.</p>

<p>Error to the Court of Common Pleas of Erie eounty: of .October and November Term 1872, No. 114.</p> <p>The writ of error in this case was to the judgment of the court below refusing to award a mandamus to compel James C. Marshall and others composing the Board of Licensers of the city of Erie to issue a license to Frank Schlaudecker to keep an eating-house in that city.</p> <p>By the Act of May 10th 1871, the Court of Quarter Sessions of Erie county was required at February term of every year to appoint a board of licensers, with the same authority to grant licenses as the Court of Quarter Sessions had. All applications to this board for licenses were required to be filed with the clerk of the Quarter Sessions, in accordance with the 8th section of the Act of March 81st 1856 (Pamph. L. 201, 2 Br. Purd. 942, pi. 13). Licenses might be granted to keep eating-houses, which authorize the sale of liquors, foreign and domestic wines, &c. The board were to meet on the 1st Monday in April in each year, hold adjourned-meetings, &c.</p> <p>In March 1872 Schlaudecker filed his petition, setting out that he was a citizen of the United States, of temperate habits and good moral character, well provided with house-room, &c., for the accommodation of the public and entertainment of strangers and travellers, and asked for license to keep an eating-house at the place designated in his petition.</p> <p>Attached to his petition was a recommendation as required by law, signed by twelve citizens of the ward in which the house was located; with the petition he filed a bond with two sureties conditioned according to the Act of Assembly.</p> <p>The board declined to grant the license.</p> <p>Schlaudecker on, the 7th of May 1872, petitioned the Court of Common Pleas, setting out his application to the board of license, and their refusal, as above stated, and prayed for a mandamus commanding them to grant a license to him. On this petition the court granted a rule on the board to show cause why a mandamus should not be awarded as prayed for.</p> <p>The respondents answered, amongst other things, that “ There were thirty-one applications for tavern license, eight for wholesale liquor license, and ninety-five for eating-house license, of which the board granted twenty-five tavern licenses, six wholesale liquor licenses and thirty-nine eating-house licenses. Judging that they had granted a sufficient number of licenses in those different branches to accommodate the public and entertain strangers and travellers; * * * the respondents did adjudicate upon said application and refused the license so applied for.</p> <p>“ The respondents claim that under the Acts of Assembly, giving to the Court of Quarter Sessions power to grant licenses to vend liquors by hotel-keepers and eating-house keepers — In order to entitle the applicant to a license there are three facts absolutely to exist, to wit: 1st, The place proposed to be licensed is necessary to accommodate the public. 2d, That the applicant is of good repute for honesty and temperance; and 3d, That he is well provided with house-room. On failure in any one of these prerequisites the Court of Quarter Sessions has no power to grant the applicant a license. The board of licensers for the city of Erie possess the powers of the court, no more nor no less.</p> <p>“ The respondents answer and say that they claim it is not only simply their privilege, but an important duty enjoined on them by law fully and carefully to examine every application for license, and when they are found to be in form according to the provisions of the Act of Assembly, that would constitute a primá, facie case. Then it becomes the duty of the board, particularly when there are one hundred and thirty-four applications for license to deal out spirituous liquor in a city of a population of about twenty thousand, first, To see if the public interest requires that number to be licensed; second, Is the applicant a person of good repute for honesty and temperance ? and third, Has he the necessary houseroom ? These facts the board has to ascertain from evidence or personal inspection, and thereupon to judge and determine upon all the cases submitted to the board. These respondents claim that it is their duty, in discharge of' an obligation they owe to the public, not to take the certificate of the twelve citizens as conclusive as to the necessity of the tavern or eating-house for the public accommodation, as to the honesty and temperance of the applicant, and as to his being provided with house-room, but to examine into the matter and upon a full and careful investigation to decide who shall have license and who shall not. These respondents did decree upon Mr. Schlaudecker’s application and rejected it, and believe they acted in accordance with the law in so doing.”</p> <p>On the 7th of May 1872 the court discharged the rule, and this writ of error was taken by Sehlaudecker.</p>

<p>Error to the Court of Common Pleas of Crawford county: No. 17, to October and November Term 1872.</p> <p>This was an action of assumpsit, brought to June Term 1870, of the court below, by James H. Smith against Thomas B. Van Horne.</p> <p>It appeared that the plaintiff had sold certain personal property to defendant, and in payment he assigned to the plaintiff his title to certain real estate owned by him. The plaintiff, alleging that the title to the land was worthless, brought this suit to recover the value of the goods sold to the defendant. The parties gave evidence in support of their case respectively.</p> <p>The defendants submitted a number of points which the court below (Lowrie, P. J.) did not answer, but reserved certain questions of law.</p> <p>The jury found for the plaintiff $1254.</p> <p>Judge Lowrie’s opinion, in passing on the reserved points, is as follows:—</p> <p>“ The plaintiff sold to the defendant his livery stable stock, and, in part payment therefor, accepted a conveyance of a tract of land in a distant state. The plaintiff afterwards discovered that the title thereto was worthless — or thought he did — and claimed to be paid in money the amount for which he had accepted it. The defendant disputed his liability to make the amount good and according to the theory of the plaintiff’s case (afterwards found by the verdict), a treaty of compromise was held between them, in which it was agreed that in place of the land the defendant should pay the plaintiff $1200, one-half in one year and one-half in two years, with promissory notes and security therefor. The defendant afterwards denied the agreement and refused to perform it, and hence this suit, in which the plaintiff declares in assumpsit on the common counts, including one for goods sold and delivered. The questions reserved on objections made by defendant’s counsel are: ‘ Is assumpsit the proper form of action for the case ? Is any one of the counts sufficient for it? Oan the plaintiff sue without a previous tender of a reconveyance of the land ? ’ and the verdict was taken subject to the opinion of the court on these reserved questions.</p> <p>“And now, December 4th 1871, after hearing, we decide all these points in favor of the plaintiff, and direct judgment to be entered on the verdict on payment of the jury fee, and stay of execution thereon until the plaintiff shall have filed with the prothonotary a reconveyance of the land to the defendant, to be delivered to him when he shall have paid the judgment. To which judgment of the court the defendant did then and there except, and prayed the court to seal a bill of exceptions in testimony thereof, which is done accordingly. W. H. Lowbie, [l. s.]</p> <p>P. J.”</p> <p>The defendant took a writ of error, and assigned the following errors:—</p> <p>“ The court erred in entering judgment for the plaintiff in this case for twelve hundred and fifty-four dollars.</p> <p>“ The court erred in certifying disputed facts against the consent of counsel.”</p>

<p>1. Under the Act of Congress of June 3d 1864 (National Banking Law), on a loan stipulating for usurious interest, a bank can recover the principal only, without any interest.</p> <p>2. Where usurious interest has been paid, the penalty is the recovery back of double the amount of the excess over legal interest.</p> <p>3. It is the actual payment on a usurious contract,_ in part or in whole, which consummates the usury, from which the limitation of suit for the penalty commences to run.</p> <p>4. Lawful interest may be recovered in an action for the principal.</p> <p>5. A National Bank discounted notes which were renewed from time to time, all at usurious discount. In a suit against the endorser on the last note, he might set off all the excess of interest retained by the bank. Per Johnson, P. J.</p>

<p>Appeal from the Court of Common Pleas of Venango county: In Equity : No. 176, to Octobór and November Term 1872.</p> <p>A bill was filed by James Bleakley against William H. Williams, John J. Broadhead and William Hassen, trustees of the First District of Oil City, and H. L. Davis, treasurer. The bill averred that Patrick Hughes, on the 23d and 28th of November 1867, respectively recovered judgments against the borough of Oil City for $570.75 and $3924.23, on each of which payments had been made amounting together to $1172.25; that writs of mandamus had been issued in January 1868 and January 1869, to compel the payment of the balances due on the judgments, to which answers were made that there was no money in the treasury to pay the judgments. They had been assigned to the plaintiff.</p> <p>By Act of March 1st 1871, the borough of Oil City and adjoining territory were incorporated into the “ City of Oil City,” and the poAvers of the Burgess and Council of the borough of Oil City, &c., were vested in the members of the city council, chosen on the north side of the Allegheny river, which was the 1st district of the city. These members were required annually to assess and collect not exceeding two. per ■ cent, on the valuation of property lying on the north side of -the river until the debt of the borough of Oil City should be paid; “ and the said tax shall be applied to that purpose and none other,” those councilmen to have power to appoint a separate treasurer.</p> <p>By the 32d section of the Act of March 11th 1872, the powers vested in the councilmen before mentioned, were vested in a board of trustees, consisting of the defendants who were required to use their efforts to discharge the indebtedness of the borough before its incorporation with the city as speedily as possible, and to the best advantage of the tax-payers of the 1st district.</p> <p>The plaintiff complained that the defendants had refused to pay his judgment out of any unappropriated money of the borough treasury, or out of the first money that should be received for the use of the borough, and had refused to levy the tax of two per cent, authorized to be raised to pay the debt of the borough, “ but propose t'o offer publicly all the money in the treasury, and to award the same to the creditors, whether with or without judgments, who will release and discharge the greatest sum of indebtedness therefor,” and that the defendants refused to pay any interest subsequently to March 1st 1871.</p> <p>The prayers were for an injunction restraining the trustees from offering the money which might be in their hands, or might come into their hands until the plaintiff be paid; that they be compelled to pay the judgment-creditors of the borough of Oil City, in the order in which the writs of mandamus were served, and to levy taxes to the amount of two per cent, on the valuation of the property on the north side of the Allegheny river, until the judgments should be paid, to pay interest on them, and for further relief. The answer, admitting substantially most of the allegations of the bill, set out at large the 32d section of the Act of 1872, referred to in the bill; the concluding part of Avhich is as follows:—</p> <p>“And it is hereby declared to be the duty of the said trustees to use their efforts to liquidate and discharge the indebtedness which accrued against the borough of Oil City before the incorporation of the city of Oil City as speedily as possible, and to the best advantage of the tax-payers of the said First District of the city of Oil City; and to this end they shall, in the months of January, April, July and October of each year, at a time and place of which notice shall be given for three weeks by publication in one or more newspapers published in said city, offer publicly all the money in the treasury, and shall award the same to the creditor or creditors, or their legal representatives, who will release and discharge the greater sum of indebtedness therefor; the said money to be offered in sums of $100; and no interest shall be computed on said indebtedness subsequent to March 1st 1871, (when the charter of the said borough of Oil City was annulled.”</p> <p>The parties after filing the bill and answer made this agreement :—</p> <p>“And now, to wit, August 20th, 1872, for the purposes of argument and hearing it is admitted that at the time of filing the above bill the defendants refused to apply the money in the hands of their treasurer, the said H. L. Davis, in the order required in the writs of mandamus against said borough of Oil City, including the judgments of the plaintiff and other claims, or to apply the same in any other way except as provided by the Act of Assembly of 1872, set forth in defendants’ answer, and have declined to compute or pay interest on said judgments and other claims against said borough subsequent to March 1st 1871. And it is hereby agreed that the case shall be set down for argument on bill, answer and amendments and this admission.”</p> <p>After hearing, the Court of Common Pleas (Trunkey, P. J.), delivered the following opinion, which was adopted by the Supreme Court:—</p> <p>44 The plaintiff is the owner of two judgments against the borough of Oil City, one obtained on the 28th of November 1867, the other on the 23d of November 1868. Upon these judgments writs of mandamus were issued, to the former of which the defendant answered February 19th 1868, that there was no money in the treasury with which to make payment, and to the latter a like answer on January 25th 1869. The legislature, by Act of March 1st 1871, incorporated the city of Oil City, embracing within its limits the territory of the late borough, and providing for the payment of the debts of said borough. In pursuance of said provision a tax was levied and collected, but before any part thereof was paid out on the indebtedness of the borough a supplementary act was passed March 11th 1872, which created a board of trustees to take charge of the money and use their efforts to liquidate and discharge the indebtedness which accrued against the borough of Oil City before the incorporation of the city of Oil City, as speedily as possible and to the best advantage of the tax-payers of the said first district of the city of Oil City, and to this end they shall, in the months of January, April, July and October of each year, at a time and place of which notice shall be given for three weeks by publication in one or more newspapers published in said city, offer publicly all the money in the treasury, and shall award the same to the creditor or creditors or their legal representatives, who will release and discharge the greater sum of indebtedness therefor, the said money to be offered in sums of $100, and no interest shall be computed on said indebtedness subsequent to March 1st 1871, when the charter of said borough of Oil City was annulled.’</p> <p>.“ The plaintiff’s judgments are among the earliest obtained against said borough. The defendants refused to apply the money in the treasury in the order required in the writs of mandamus against said borough; they refused to apply the money in any other way than is pointed out in the 32d section of the Act of March 11th 1872, and they have declined to compute or pay interest on said judgments from March 1st 1871. Upon the facts the only question for present adjudication is, is that portion of said Act of Assembly valid, which requires said trustees at stated times, to auction the money in the treasury to the creditors who will release the greater sum of indebtedness therefor, and which stops interest on all indebtedness of the borough after March 1st 1871 ?</p> <p>“The legislature have absolute control over a municipal corporation, and may alter its character, remove its officers and appoint others, or wipe out its existence: Philadelphia v. Fox, 14 P. F. Smith 169. The municipality is the creature of the state, and if it was authorized to contract debts no subsequent legislation can impair such obligations. The constitutional prohibition takes effect on contracts, whether between a state and an individual, or between individuals: Potter’s Dwarris Statutes 447. The state by legislation cannot impair the obligation of its own contracts ; it cannot alter a municipal charter, or revoke it, so as to destroy the lawful contracts of the corporation. A lawful repeal of a statute cannot be constitutionally made to destroy contracts made under it: Id. 474. It has not been contended by the defendant, as I understand the argument, that the legislature can enact a law impairing the obligation of a' contract made by a municipal corporation. I consider it clear they cannot.</p> <p>“ But it is said the act in question only affects the remedy. The individual citizen has no vested right in what is known in the law as remedies, nor in any particular existing remedy. The existing laws of a state may be amended or repealed, and there is no obligation on the part of the state to protect its citizens against incidental injury occasioned by changes in the law. Whatever belongs merely to the remedy may be altered, provided the alteration does not impair the obligation of the contract, but if a statute so changes the nature and extent of an existing remedy as materially to impair the rights and interests of the owner of property, it is just as much a violation of the constitutional provision as if it directly overturned his rights and interests. If the statute does not impair the right or property itself, if it still leaves the party a substantial remedy, according to the course of justice, as the right existed at the time of its passage, it does not impair the obligation of the contract, nor will it he held to do so, merely because the new remedy is less efficient, less speedy or less convenient than the old one: Ibid. 472.</p> <p>“A law prohibiting the sale of property under execution, unless it will bring two-thirds of its appraised valuation, is unconstitutional and void: McCracken v. Hayward, 2 How. 608; Penrose v. Erie Canal Co., 6 P. E. Smith 46.</p> <p>“ It is competent for the legislature to enact a stay law for a definite and reasonable time, but a stay for an indefinite time is void. If the law be so changed that the means of enforcing a contract are materially impaired, the obligation no longer remains, and when the act creates the possibility of a perpetual suspension of remedies, or a suspension for a time that all courts of justice would deem unreasonable, it is a plain violation of the provisions of the federal and state constitutions, which protect the inviolability of contracts: Bunn, Raiguel & Co. v. Gorgas, 6 Wright 441.</p> <p>“ It cannot be denied that the legislature have power to pass an act which, without acting directly upon the terms of the contract, changes the remedy a party may have at the time of its passage, and so embarrasses the remedy that the creditor may be greatly injured without redress. Especially will the creditor be so injured by frequent changes in the statutes, though none of them may be unconstitutional. Whoever contracts with a municipality does so knowing that the state may do with the corporation whatever she shall deem expedient, as well as he knows the obligation of the contract cannot be impaired. He knows remedies may be changed, that he may be hindered, delayed and embarrassed. No better illustration exists of what he is liable to encounter than the statute referred to in the bill and answer, relative to the debts of the borough of Oil City. The Act of March 24th 1868, P. L. 444, provided that four-fifths of the tax authorized to be levied should be paid in borough orders, and the remaining fifth in money, for the exclusive use of the fire department. Not a dollar was allowed to be applied to the indebtedness of the borough. The officers were allowed to settle with their creditors and give bonds payable in the future. But all remedy to enforce payment was taken away. No remedy express or implied was allowed until after those bonds should become due. This was a stay law on all existing indebtedness of not less than one nor more than twenty years, at the option of the debtor. And it was passed after the borough officers had filed their answer to the mandamus on the larger judgment of the plaintiff. By Act of March 1st 1871, P. L. 187, the existence of the borough was wiped out, but a fair provision was made for payment of its debts. The proper officers levied a tax, but before any portion of the money was paid out, the Act of March 11th 1872 ousted the old officers, created new ones, and placed it out of the present power of the plaintiff to collect his judgments. He is now subjected to a second stay, for what time it is impossible to determine.</p> <p>“ "When the plaintiff’s debts were contracted with the borough of Oil City, creditors had like remedy against said boropgh that existed, and still exists, under the general laws, to compel municipal corporations to pay their lawful debts. That remedy is prompt and is certain.</p> <p>“ The creditor could resort to it at once, and the creditor first in time will secure payment out of the first money coming into the treasury. This legal and certain remedy, then existing, is so much a part of the contract that it cannot be wholly taken away, nor changed so as substantially to deprive the creditor of all remedy. The borough of Oil City has been subjected to such special legislation that, if constitutional, the creditors are not only deprived of all remedy which existed when the credit was given, but the borough officers are forbidden to pay any creditor who will not release a part of his debt, while others offer to release. The creditor cannot collect and the debtor is prohibited from paying.</p> <p>“ To what amount the borough of Oil City was indebted does not appear, nor is it approximately shown within what time the trustees can pay the indebtedness by the tax they are authorized to levy. From the admitted facts it is reasonable to assume that it is large, and that many years must elapse before it can all be paid. If the part of the act in question is valid the money raised by taxation cannot be distributed pro rata among the creditors, in which case there would be some appearance of fairness; nor can it be applied to the oldest creditors in the order of contracts, nor to the vigilant creditor who obtained judgment by due legal process and issued the mandatory writ then authorized by law. The oldest and most vigilant creditor, perhaps the most worthy, will be the last paid if others are willing to sacrifice more than he. If he decline the sacrifice he must wait an unknown period without interest.</p> <p><! When will stay of execution expire on the plaintiff’s judgments ? The time when process will be allowed to enforce payment is as uncertain as the discount a needy creditor will make to get a portion of his honest dues from the borough. The stay will be longer or shorter, in proportion as the wants of creditors will force a greater or less sacrifice. As we have seen under the Act of March 24th 1868, the plaintiff’s hands are tied not exceeding twenty years; under the Act of March 11th 1872, his hands are again tied for an indefinite period.</p> <p>“ It matters not that the plaintiff has his option to underbid other creditors and receive a part of his due in satisfaction of the whole. There can be no pretence that the legislature can compel a creditor to release part of his claim, under penalty of being indefinitely barred from its- collection.</p> <p>“The conclusion from the authorities cited, and others of like tenor, is ‘ that in respect to contracts which do not treat of remedies, we hold any law to be constitutional which gives a stay for a time that is definite and reasonable, but unconstitutional if the stay be for an indefinite time, or for a time that is unreasonable, though definite Breitenbach v. Bush, 8 Wright 318.</p> <p>“ It is clear that the Act of March 11th 1872 operates as a stay of execution process for an indefinite time. After four years’ delay from the rendering of plaintiff’s judgments, during which, under the Act of March 24th 1868, the borough officers could not have paid had they been willing, it is most unreasonable to tack on another stay for an uncertain term, although the payment be not for ever postponed. The constitutional prohibitions forbid such legislation.</p> <p>“ The plaintiff is entitled to interest on his judgment. The law gave interest on debts due and unpaid when the debts were contracted. The bonds were subject to interest. The law gave interest upon the judgments. Whether expressed or not he is entitled to interest. ‘ Implied contracts are such as reason and justice dictate from the nature of the transaction, and which the law presumes that every man undertakes to perform. The constitution makes no distinction between the one class of contracts and the other. It then equally embraces and applies to both:’ 2 Story Const, sec. 1377.</p> <p>“ The attempt to deprive a creditor of interest on an overdue debt, which the debtor refuses to pay, is in the teeth of the implied contract and of the constitutional provision that its obligation shall not be impaired.</p> <p>“ So much of the Act of March llthl872 as requires said trustees at stated times to offer publicly all the money in the treasury, and award the same to the creditors who will release the greater sum of indebtedness therefor, and as stops interest on said indebtedness subsequently to March 1st 1871 “ violates the constitution clearly, plainly, palpably and in such manner as to leave no doubt or hesitation in our minds.’ ”</p> <p>The court thereupon decreed:—</p> <p>“ That the said trustees and treasurer, the defendants in this action, be enjoined from offering the money which is now in their hands or in the treasury, and which is now due and may hereafter become due and be paid into their hands or into the treasury, and that they be enjoined from awarding said money or any part thereof to the creditor or creditors who will release and discharge the greater sum of indebtedness therefor, until the plaintiff be paid the full amount of his judgments.</p> <p>“ That the defendants shall compute and pay interest on each of said judgments from the rendition thereof till the date of payment.</p> <p>“ That the defendants shall pay the judgments of the plaintiff out of the money now in their hands or that may first come into the treasury or into their hands, unless there be other judgments on which writs of mandamus were issued and served prior to the writs on the judgments of plaintiff, in which case the money shall be paid in the order of said writs so served upon the respective judgments until the plaintiff’s judgments are fully paid.”</p> <p>The defendants appealed to the Supreme Court and assigned the decree for error.</p>

<p>Error to the Court of Common Pleas of Venango county: Of October and November Term 1872, No. 102 and 103.</p> <p>The action in which these writs of error were taken, was an ejectment commenced February 28th 1871, by the Rockland and Venango Oil Company, against S. P. McCalmont and another, for a “ tract of land in Rockland township, containing 87 4-10 acres, being allotment 418 of Bingham lands, part of warrant 3508.”</p> <p>The cause was tried May 11th 1872, before Jenks, P. J., of the 18th district, when it was admitted that the title of both parties was derived from Elihu Chadwick.</p> <p>The plaintiffs gave in evidence, deed for the land in question, E. Chadwick to A. Stranford and W. Smith, dated January 21st 1861: deed Stranford and Smith to H. S. Withridge and N. Gr. Penniman, dated October 29th 1864; letters patent from the Commonwealth, dated February 17th 1865, incorporating the plaintiffs.</p> <p>They then called N. O. Penniman, one of the grantees from Stranford and Smith, who testified that the land had been purchased on behalf of ten individuals who afterwards organized the Rockland and Venango Oil Company; that in execution of the trust a deed had been made by Withridge and himself to the plaintiffs ; it was executed and delivered April 30th 1872 (after the issuing of the writ in this case). The company took possession of the property in the fall of 1864, and adopted the title before they got the act of incorporation. William Winner sold the property to them and acted for them for a short time.</p> <p>The plaintiffs then offered in evidence a deed from Withridge & Penniman to them for the land in question, dated February 18th 1865. The offer was objected to by the defendants on the ground that the deed was delivered after the issuing of the writ in this case. The court admitted the offer and sealed a bill of exceptions for the defendants.</p> <p>The defendants then gave in evidence, the assessment list of Rockland township, for 1865, “William Winner & Co., No. 418, 87 acres, seated list;” and same for year 1866. Treasurer’s sale of land as seated June 10th 1868 to S. P. McOalmont, for taxes of 1865 and 1866, and treasurer’s deed to him for same, dated July 30th 1868. _ . _</p> <p>_ _ The plaintiffs in rebuttal gave evidence by N. Gr. Penniman that in the latter part of 1864, they put a stationary engine' on the ground and erected a dwelling-house near the line of McOalmont; they sank a well in 1865. In that year their superintendent lived in the house; got oil out of the well in June 1866, when there was $100 or $150 worth of oil in the tank; they leased in June 1866 to one Anderson, who agreed to continue pumping the well and to put another down ; on going to the premises in the fall of that year, witness found that Anderson had gone; the engine, tank, derrick, &c., were worth $1100; oil was left in the tank in 1866 to pay the taxes.</p> <p>There was evidence also that part of the machinery was on the ■ premises in 1867, 1868 and 1869.</p> <p>Hugh Craig testified, that under instructions from Penniman he went to the county treasurer and told him he wanted to get the amount of taxes against the Rockland and Yenango Oil Company; the treasurer said there were no taxes against that company; witness described the property and gave him the names of Withridge, Penniman, Stranford, Smith and others; if he had got the amount he would have paid the taxes; he went again with R. S. Cochrane and examined the land book to see if the property had been sold; he examined the recorder’s office for the names of owners in the line of plaintiff’s title, and in the commissioners’ office for assessments for a number of years; he described the property to the township assessor who told him it was not assessed; he saw a piece assessed in Winner’s name, but it contained two acres less than this tract; he did not look for the number of the tract, nor examine asséssments earlier than 1867.</p> <p>Cochrane testified as Craig did with reference to their joint examination.</p> <p>The plaintiffs offered to prove “ that on the 24th day of June 1870, more than two years after the date on which the land had been struck down to defendant, but within two years after the execution, acknowledgment and delivery of the treasurer’s deed, or either of them, and within two years after the payment of taxes and costs and execution and delivery of the surplus bond by defendant, or either of them, the agent of the plaintiff offered to pay the treasurer the money necessary to redeem the land, which said money was refused by said treasurer.”</p> <p>This was objected to by the defendant, for the reason that the offer is to prove a tender of the money after the expiration of two years from the date of sale.</p> <p>The offer was rejected and a bill of exception was sealed for the plaintiffs.</p> <p>The defendants in answer gave evidence as to the abandonment of the land and that there was no property on it about September 1866 and after, except a derrick of much less value than the amount of taxes.</p> <p>The Act of April 29th 1844, section 41, provides that where lands upon which personal property sufficient to pay taxes cannot be found, and the owners neglect to pay the taxes, the collectors of the proper townships shall return the lands to the commissioners, and they shall be sold as unseated lands, provided that no sale shall be made of such lands until the owner shall have neglected to pay for two years and that the owner may redeem at any time within one year after receiving actual notice from the county treasurer that the lands have been sold, by paying the amount of taxes and costs with interest from the time when the taxes became due.</p> <p>The Act of May 1st 1868, Pamph. L. 1158, repealed the provisoes to the 41st section of the Act of 1844.</p> <p>The Act of April 3d 1851, section 3, Pamph. L. 317, provides that if any taxes in Venango county shall remain unpaid for thirty days after the 1st of August in any year a warrant for their collection shall be issued by the treasurer and placed in the hands of the constable of the proper township; and if any persons owing taxes shall neglect to pay them in ten days after demand the constable shall distrain the goods of the delinquent and sell them. By the 6th section of the same act the constables are required to settle their accounts and pay the money collected by them under the warrants within four months after the delivery of the warrants to them.</p> <p>The defendant’s points were:—</p> <p>1. The plaintiff not having shown either a legal or equitable title in itself, for the land described in the writ prior to tfie beginning of this suit, the verdict must be for the defendants.</p> <p>This point was answered in the negative.</p> <p>3. If the collector, at any reasonable time between the time the duplicate came into his hands and the time he was required by law to return the same, went to the land and found it vacant and no property there out of which the taxes might be made and had no reason to believe there would be property on the land in due time, out of which the taxes might be made, the sale of the land would not be void because there might have been property there at some time while the duplicate was in collector’s hands.</p> <p>The court answered the 3d point as follows:—</p> <p>“We perhaps do not fully understand this point, but as it appears to us this qualification is necessary, that if there was not personal property on the land sufficient to pay the taxes after the time the constable, by reasonable diligence, could have levied upon the same, he had the right to return the land, and a regular sale upon such return would vest a good title in the defendants. As thus explained we affirm this point.”</p> <p>The verdict was for the plaintiffs.</p> <p>Each party took a writ of error</p> <p>The plaintiffs assigned for error the rejection of their offer of evidence.</p> <p>The defendants assigned for error:—</p> <p>I. Admitting the deed from Withridge and Penniman'to the plaintiffs.</p> <p>2-3. The answers to the defendants’ 1st and 3d points.</p>

<p>Error to the Court of Common Pleas of Brie county: of October and November Term 1872, No. 9.</p> <p>This was an action of assumpsit brought April 3d 1869, by John W. Walker against H. N. Armstrong and Joshua Follansbee, trading as H. N. Armstrong & Co. The declaration was in the common counts.</p> <p>The plaintiff’s claim, filed in the name of the plaintiff alone, is as follows:</p> <p>“1867.</p> <p>Nov. 1. — To quantity of coal sold and delivered by</p> <p>plaintiff to defendants at the agreed price of - $2300.00 To one-half rent of office and yard one year - 125.00</p> <p>To one-half rent of horses and wagons 6 months 50.00</p> <p>$2475.00</p> <p>1869.</p> <p>Apr. 2. — Judgment in the Erie Common Pleas, &c., G. R.</p> <p>Wilson & Co. v. John W. Walker and H. N. Armstrong, and paid by plaintiff in above' suit, J. W. Walker - $531.64</p> <p>Costs in said suit - 28.11</p> <p>$3034.75</p> <p>Follansbee appearéd and pleaded “Non assumpsit.”</p> <p>There was no appearance or plea for Armstrong.</p> <p>The case was tried, February 3d 1871, before Wetmore, P. J., when it appeared that the plaintiff and H. N. Armstrong, one of the defendants, during the year 1866 and until the 1st or 18th of November 1867 (as to which day the evidence was conflicting) were partners, under the firm of Walker and Armstrong, and held a lease for ten years of a coal-yard, ofiice, &c., in the city of Erie. On one of those days the firm of Walker & Armstrong sold to Follansbee one-half the interest of the firm property. Follansbee and Armstrong continued in business under the firm name of H. N. Armstrong & Co.</p> <p>There was evidence that on the 8th and 21st of November 1867 orders for coal in the name of Walker & Armstrong were drawn on Wilson & Co., of Buffalo, and the coal ordered was shipped to “Walker & Armstrong,” by Wilson & Co.; that the coal had been ordered by Armstrong, in the name of “Walker & Armstrong,” after the dissolution of that firm, and that it had been received by H. N. Armstrong & Co. The firm of Walker & Armstrong was sued by Wilson & Co. for the coal and a judgment recovered which was paid by Walker.</p> <p>On the trial, A. J. Foster, Esq., the attorney for defendant, Follansbee, was offered as a witness for him. Mr. Foster had opened the case for the defendant and examined witnesses on his behalf.</p> <p>Mr. Foster was objected to by the plaintiff as incompetent for these reasons ; he was rejected by the court and a bill of exceptions sealed for the defendant.</p> <p>The defendant’s 3d point was:—</p> <p>The plaintiff cannot, in this action, recover the money he paid in discharge of the judgment of Wilson & Co. v. Walker & Armstrong, and D. D. Walker against the same, there being no evidence of any promise or assumption by H. N. Armstrong & Co. to repay the same to plaintiff.</p> <p>The answer was:—</p> <p>“ If the coal was received by H. N. Armstrong & Co. and used by them on an order made by Walker & Armstrong before the formation of the firm of H. N. Armstrong & Co., and Wilson & Co. sued Walker & Armstrong and recovered a verdict for the amount of the coal so received, and John W. Walker paid the amount of the verdict, he can recover the same in this suit.”</p> <p>The verdict was for the plaintiff for $653.12.</p> <p>The defendant took a writ of error and assigned for error the rejection of Mr. Foster and the answer to defendant’s 3d point.</p>

49, to October and November Term 1872. This was an action on the case, brought to September Term 1870 of the court below by Samuel J. Clark, against “The Oil Creek and Allegheny River Railway Company.” The plaintiff’s cause of action was the putting him off the cars of the defendants under the following circumstances: The plaintiff had bought a car ticket from a station on defendants’ road called “Miller Farm” to go to Oil City, a distance of 12 miles; the ticket was as…

<p>Error to the Court of Common Pleas of Armstrong county: No. 126, to October and November Term 1872.</p> <p>On the 27th of January 1865 a writ in ejectment was issued, in which Reuben Leonard and wife were plaintiffs, and Fullerton Parker, Greorge Parker, William Morrison were named as defendants.</p> <p>On the 10th of February an appearance was entered for Morrison, Connelly and Greorge Parker. On the 6th of March the following order was made:—</p> <p>“ On motion of J. Boggs, the court amend the record in this case by adding the name of James W. Parker as a defendant, the court being satisfied that his name was omitted in the precipe by mistake of the counsel.”</p> <p>On the 27th of March a rule was taken on the plaintiff to file their abstract of title, and on the 12th of June the abstract was filed. March 5th 1866 the defendants’ attorneys suggested the death of Connelly, and his heirs were substituted as defendants.</p> <p>On the 26th of November 1869 the defendants’ attorneys obtained a rule to show cause why the amendment making James W. Parker a defendant should not be taken off, and his name stricken from the records. Depositions were taken by both parties for the hearing of the rule, and on the 12th of July the court (Jenks, P. J. of the 18th district) made the rule absolute, and the name of James W. Parker was stricken off.</p> <p>The plaintiff took a writ of error and assigned for error the order making the rule absolute.</p>

<p>1. A scire facias sur judgment was issued against several, judgment was rendered against some of the defendants by default, and in favor of others, on the plea of “ nul tiel recordHeld that the latter were entitled to costs v against the plaintiff.</p> <p>2. Statutes in pari materia are to bo construed together and the legislature is presuméd to have former statutes before them and to have known their judicial construction.</p> <p>3. The courts of Pennsylvania do not construe statutes giving costs as penal, but as compensating parties for expenses in defending against unjust claims.</p> <p>4. Statutes 23 Henry 8, c. 15 ; 4 Jac. 1, c. 3; 8 and 9 Wm. 3, c. 2 (Costs), compared and construed.</p> <p>5. Lane ». Harrold, 16 P. P. Smith 319; Maus v. Maus, 10 Watts 87, remarked on. 0</p>

<p>Error to the District Court of Allegheny county: Of October and November Term 1870, No. 180.</p> <p>This was an action of assumpsit brought December 9th 1868, by James Irwin and William Holmes, trading as James Irwin & Co., against Oliver B. Jones, D. W. C. Bidwell and Henry Phipps, Jr., trading as O. B. Jones.</p> <p>Judgment for want of an affidavit of defence was taken against Jones; the other defendant filed an affidavit of defence and pleaded, “Non assumpsit,” “No partnership with leave, &c.”</p> <p>The action was for goods sold and delivered. There was no question as to the delivery of the goods to Jones at the Duquesne Oil Refinery, the only question in the case was whether the other defendants were partners of Jones.</p> <p>The case was tried December 16th 1869, before Kirkpatrick, J. The plaintiffs gave in evidence the following article of agreement:</p> <p>• “Articles of agreement entered into this 2d day of September, in the year of our Lord 1867, between D. W. C. Bidwell and Henry Phipps, Jr., * * * of the one part, and Oliver B. Jones of the other part, witnesseth:</p> <p>“ That the said parties of the first part have agreed to and with the said Jones, for and in consideration of the sum of $1 to them in hand paid by the said Jones, * * * and of the payments, conditions and covenants of the said Jones hereinafter set forth, * * * to loan to him, the said Oliver B. Jones, the sum of $10,000, and to negotiate, at their proper cost and expense, the commercial paper of the said Oliver B. Jones, to the additional amount of $5000: the said sum of $10,000 to be paid by the said Jones, on the 1st day of January, A. D. 1870, and the said commercial paper of the said Jones, to the amount of $5000, or the renewal of the same, to be protected by the said parties of the first part, until the 1st day .of January, A. D. 1870, at which date the said Jones is to take up the said commercial paper.</p> <p>“In consideration whereof, the said Jones covenants to and with the said parties of the first part, * * * that he will pay to them the said sum of $10,000, on or before the 1st day of January, a. d. 1870, that he will lift the said commercial paper, that he will pay to them at the beginning of each quarter, commencing on the 1st day of January, A. D. 1868, the sum of thirty cents per barrel for every barrel of oil refined at his oil refinery, known as the Duquesne Oil Refinery, situate * * * from the 1st day of September, a. D. 1867, until the 1st day of January, A. D. 1870; provided that the said royalty or sum of thirty cents per barrel shall not be paid on any oil refined at said refinery in excess of 20.000 barrels in any one year ; that he will, upon the receipt of said sum of $10,000, and of the proceeds of said commercial paper, clear of discount, execute in favor of the said parties of the first part, a bond, conditioned .to repay to the said parties of the first part, the said sum of $10,000 to lift and take up the said commercial paper, for $5000 or its renewal, on the 1st day of January, a. D. 1870, to pay to the said parties of the first part, at the beginning of each quarter, commencing on the 1st day of January, A. D. 1868, the sum of thirty cents per barrel, upon every barrel of oil refined; * * * the said bond to contain clauses for commissions, to provide that upon failure to pay the said royalty or sum of thirty cents per barrel in quarterly payments, as aforesaid, or in thirty days after any quarter shall have expired, the whole of said bond to become due and payable; said bond to be secured by mortgage of the ground and works of the said Oliver B. Jones, known as the Duquesne Oil Refinery, situated * * * said mortgage to contain the clauses and provisions aforesaid.</p> <p>“And the said Oliver B. Jones further covenants, that he will pay to the said parties of' the first part the said royalty * * * that he will keep accurate accounts of all oil refined by him, and furnish to the said parties of first part copies thereof once every three months, or as often as may be desired by the said parties of the first part, and that in default of the payment of the said royalty or sum of thirty cents aforesaid, and the copies of the accounts as aforesaid, a scire facias on said mortgage, shall issue for the recovery of the said royalty * * * on the basis of a production of 20.000 barrels per annum, in addition to the other sums mentioned in said mortgage.</p> <p>“ That he will not sell, lease or encumber the said refinery or discontinue the operation of the same, until after the 1st day of January, A. D. 1870.</p> <p>“ That he will not pursue a speculative business nor contract to sell refined oil without having first secured the crude material for the manufacture of the same, nothing herein contained however, to interfere with the exclusive control of the said Jones with the said business, which is to be conducted in the same manner as he has heretofore conducted the same under the limitation aforesaid.</p> <p>“ That he will immediately open a new set of books to be kept by double entry, the original entries of which may be made by the said Jones, but the posting thereof shall be done by persons satisfactory to the said parties of the first part, and said books shall be open to the inspection of the said parties of the first part at all times.</p> <p>“ The said Jones further covenants and agrees, that the said parties of the first part may, on or before the 1st day of January, A. D. 1870, elect to become partners with him in the said business to the extent of three-tenths interest, and in the event thereof, the said sum of $10,000 cash aforesaid, and the further sum of $5000, proceeds of the commercial paper aforesaid, shall be treated as capital of the partnership, the said parties of the first part to lift and return the said, commercial paper to the said Jones, the said partnership to date from the 1st day of September, A. D. 1867, and to terminate on the 1st day of January, a. D. 1870, the said parties of the first part to participate in the profits during the term of partnership to the extent of three-tenths, less the said royalty or sum of thirty cents per barrel, before the election received. He, the said Jones, in the event of such partnership, to receive from the business of said partnership as salary the sum of two thousand dollars per annum, from the 1st day of September, A. D. 1867. And upon the winding up of the affairs of said partnership, the said parties of the first part shall be entitled to receive in cash out of the partnership effects, the amount of capital advanced by them and their proportion of profits, if any, subject névertheless to partnership losses.</p> <p>“ That upon the election of the said parties of the first part, to become partners as aforesaid, notice thereof in writing shall be given to said Jones, and until said notice of such election is given, no partnership between the said parties exists, or shall exist by virtue of this agreement, anything herein contained to the con-" trary thereof notwithstanding.</p> <p>“ And the said Oliver B. Jones further covenants and agrees, that he will keep a line of insurance on his refinery and the .buildings connected therewith, of six thousand dollars, which he will assign to them, the said D. W. C. Bidwell and Henry Phipps, Jr., said insurance to be taken out at the expense of said Jones, and will take out additional insurance on additional improvements to be assigned as aforesaid.</p> <p>“ That he will also keep up a line of insurance on his refined oil, kept at the said refinery, equal to an average amount so kept, and will assign to Bidwell & Phipps so much thereof as the interest therein may amount to under this agreement. And he does further, as part of the consideration under this agreement, hereby assign, transfer and set over unto the said Bidwell & Phipps all the residue of said last-mentioned insurance, in case of loss by fire, and does hereby constitute the said Bidwell & Phipps his true and lawful attorneys for him, and in his name to collect and receipt i the said last-mentioned insurance; and does hereby agree to execute such instruments of writing as may be necessary to effectuate this covenant; the proceeds of such last-mentioned insurance to be applied, in the discretion of the said Bidwell & Phipps, either to the rebuilding of the refinery aforesaid, or to the reduction of the indebtedness of the said Jones to them as herein set forth.”</p> <p>On the 14th of September and 17th of October 1867, Jones received from Bidwell and Phipps the $10,000, and on the 17th of October, Bidwell and Phipps received from Jones his mortgage of that date, reciting the agreement, and conditioned as was stipulated therein.</p> <p>The plaintiffs’ points were:—</p> <p>1. The articles of agreement, dated September 2d 1867, in evidence as having been executed and carried into effect, constituted the parties thereto partners as regards creditors, and that the defendants, D. W. C. Bidwell and Henry Phipps, Jr., are liable, with O. B. Jones, to the plaintiffs for the amount of their respective claims.</p> <p>2. Secret agreements, whereby one party advances capital or funds to be used in a manufacturing venture, and reserves the right to take interest for the use of the funds or to take a share of the profits, as he may deem most advantageous to himself, is, as against creditors of the said business, contrary to public policy, and the legal effect of such an agreement is to make the parties thereto partners and liable for the debts of said business.</p> <p>3. Under the pleadings and evidence, the plaintiffs are entitled , to recover.</p> <p>The defendants’ points were :—</p> <p>1. The evidence offered by the plaintiffs is insufficient to constitute the defendants, Bidwell & Phipps, partners with O. B. Jones, as to the plaintiffs or other third persons, or charge them as such partners, and the plaintiffs are not entitled to recover against Bidwell & Phipps.</p> <p>2. Under all the evidence in this cause, the verdict of the jury should be in favor of defendants, Bidwell & Phipps.</p> <p>The court reserved the questions of law presented by the respective points of plaintiffs and defendants, and directed the jury to find for the plaintiffs, subject to the decision of the court on the said questions of law reserved.</p> <p>The jury found for the plaintiffs for $3196.51.</p> <p>The court (Kirkpatrick, J.) afterwards entered judgment for the defendants non obstante veredicto.</p> <p>The plaintiffs took a writ of error, and assigned for error the entry of judgment for the defendants.</p>

<p>Error to the Court of Common Pleas of Erie county: No. 19, to October and November Term 1871.</p> <p>This was an action on the case brought September 10th 1867, by Charles IT. Bushley against Ezra Cooper.</p> <p>In his declaration the plaintiff complained that on the 9th of June 1862, the defendent purchased, at treasurer’s sale of unseated land, forty-five acres sold for taxes as the land of John Barber, and the treasurer made a deed of same date to the defendant, which, after acknowledgment in court, was delivered to the defendant; that on the 14th of April 1863, the land was redeemed by payment of the taxes, &c., whereby the treasurer’s sale was annulled, the defendant demanded and received from the treasurer the redemption-money, and the title thereupon reverted to Barber. But the defendant knowing that he had no title to the land, and with design to defraud the plaintiff, and claiming that he had a good title to the land, and asserting that there had been no redemption, and that the plaintiff without examining the records might rely upon his statement as true, for a valuable consideration paid by the plaintiff, assigned to plaintiff by endorsement “ on said deed,” his interest in the land and thereby defrauded him.</p> <p>On the trial, February 3d 1869, before Yincent, J., the plaintiff gave in evidence, deed dated June 9th 1862, from the treasurer of Erie county, to the defendant for the land mentioned in the declaration, with assignment February 1st 1864, endorsed “For a valuable consideration” to C. H. Bushley the plaintiff; also, from the sale-book of unseated land in Erie county, the redemption of the land April 14th 1862, by Hartshorn, a former owner, and receipt of the redemption-money December 12th 1863, by the defendant.</p> <p>There was evidence by John Clough that he had owned the land and had asked defendant to assign another deed which he had from the treasurer of the county, for a tax sale in 1860; witness told him the land had been redeemed, he said it had not. The witness reconveyed to plaintiff who had deeds both of 1860 and 1862, but an assignment was only on that of 1862. Witness received both deeds from plaintiff and returned them to him. The plaintiff gave evidence of the value of the lands. *</p> <p>The defendant gave in evidence tax sale of the land to himself June 14th 1860, as the property of John Barber, and that there had been no redemption. He gave evidence also by the justice before whom the acknowledgment of the assignment of the deed of 1862 was taken, that plaintiff and defendant were both before him; there were two tax deeds for the same land; there was a question raised whether there should not be an assignment of both deeds; the defendant thought as the plaintiff had both deeds, the one assignment took all the interest that defendant had in the land.</p> <p>In rebuttal, Clough testified that when plaintiff assigned to him, they talked of transferring deed of 1860, defendant thought it was not necessary to incur the expense of assigning the deed of 1860. Defendant afterwards refused to assign that deed. Witness did not know at the time of the acknowledgment that the land had been redeemed. Defendant wanted him to pay some taxes; witness could not pay them; thought it was not for him to pay.</p> <p>The court charged:—</p> <p>“When Cooper transferred the deed of June 9th 1862 he knew that the sale referred to by it had been redeemed, and that, so far as that sale was concerned, he had no title whatever, if you believe the evidence.</p> <p>“ He had another deed to himself for the same land, in pursuance of sale made in 1860, and this sale had not been redeemed.</p> <p>“ Cooper then had in 1864 all the title he could acquire by a treasurer’s deed.</p> <p>“ [It is alleged that at the time he assigned his interest in the land to the plaintiff he delivered both deeds to him, although the assignment was only endorsed on the deed of 1862, and it is for you to say whether it was understood by the parties that the assignment on the deed of 1862 transferred all the interest Cooper had in the land, or only that represented by the deed of 1862.]</p> <p>“Bushley transferred the deed of 1862 to Clough, and handed over both deeds in the same manner that he had received them from Cooper.</p> <p>“ In 1866, at the time of the acknowledgment of the assignment from Cooper to Bushley, and from Bushley to Clough, the question of the assignment of the deed of 1860 was mooted, and it was considered that it was not necessary to incur the expense. Cooper afterwards declined to assign the first deed, unless some taxes were paid, but denied then that the land had been redeemed.</p> <p>“ In making that assertion did Cooper refer to the sale of 1860, or the sale of 1862 ? This question you must answer from the testimony.</p> <p>“ Was Bushley deceived; that is, would he have refused to pay his money for the assignment he received had he known that the sale for which that deed was given had been redeemed, even though he knew of the sale of 1860, and that it was not redeemed ?</p> <p>“ Did he understand just how the matter stood as to the land he was buying, when he made the purchase, or did Cooper deceive him with an intent to cheat him ? Why did not Cooper transfer the deed of 1860 when asked to do so? Was it in avoidance of the effect of transferring the wrong deed, or was it with a design to defraud?</p> <p>“ [Without an assignment of the deed of 1860 it was no evidence of title to the land in the hands of the assignee, and it was Cooper’s duty to assign his interest under that deed, if he intended to transfer his interest under that deed to Bushley.]</p> <p>“ [We are in doubt as to how far the act of Cooper, in receiving the redemption-money of the sale of 1862, estopped him from claiming this land as against the owner before the tax sale, but for the purpose of this suit we charge you that he is estopped by that act, and that he had no interest, after that, in the land, and we therefore think that Bushley cannot hold the land as against Barber, the former owner.]</p> <p>“ [If Bushley is entitled to recover anything, we think he is entitled to recover the value of the land in the absence of any proof as to how much he paid. If he paid a specific sum, which you can ascertain from the evidence, that would be the measure of damage, together with such other sum for trouble and expense, other than attorney fees, caused by the deceit of the defendant.]</p> <p>“ [We are of the opinion that it was not necessary to tender back the deeds before bringing suit.]”</p> <p>The verdict was for the plaintiff for $450.</p> <p>The defendant took a writ of error, and assigned for error:</p> <p>1-5. The parts of the charge in brackets.</p> <p>6. The effect of the charge was a direction to the jury, that the plaintiff could keep the land and recover its value.</p>

<p>1. As a general rule, a party has not a right to give in rebuttal evidence which might have been given in chief; its admission is in the discretion of' the court.</p> <p>2. Evidence was offered by defendant as rebutting which was in contradiction of evidence given by plaintiff; not being offered for that purpose, it was not error to reject it.</p> <p>3. By articles plaintiff contracted to convey to defendant 350 acres more or less; the land was 306 acres, and the deed was 302 acres more or less. In an action for the purchase-money, the court charged that this deficiency was not evidence of fraud. Held to be correct.</p> <p>4. In an action on bonds given for purchase-money, there was evidence of fraud and misrepresentation by the vendor as to the land. The court charged that to set aside the contract the evidence “must be clear and explicit, and- lead to a satisfactory and certain conclusion. The law does not use the words ‘weight of testimony’ concerning evidence to overthrow solemn duties and obligations,” &c. Held to be error.</p> <p>5. In civil eases the jury determine according to the weight of evidence, and its sufficiency to produce conviction of absolute certainty.</p> <p>6. No more is required than that the evidence should be sufficient to satisfy the conscience of a common man, so that he would act upon the conviction in matters of the highest importance to his own interests, although that be short of absolute certainty.</p> <p>7. There is nothing in determining a question of fraud which makes it an exception.</p> <p>8. The existence of fraud is to be proved as any other fact; the evidence is sufficient if it satisfy beyond a reasonable doubt.</p>

83, October and November Term 1872. This was an action of trespass for mesne profits, brought December 17th 1869, by Henry Lane against Bennett Lane and Elizabeth Harrold. The cause was tried February 14th 1872, before Logan, P. J. The plaintiff gave in evidence the record of an action of ejectment between the same parties to August Term 1865 of the Court of Common Pleas of Westmoreland county.

<p>Error to the Court of Common Pleas of Westmoreland county: No. 23, to October and November Term 1872, No. 23.</p> <p>This was an amicable action of ejectment for a tract of 106 acres of land, and case stated filed May 5th 1870, between John Rudebaugh, Christopher Rudebaugh, Washington Cox and Leah his wife, late Rudebaugh, in her right, Matthias King, only child of Elizabeth (now deceased), a daughter of John Rudebaugh the younger, David Rudebaugh, Samuel. Swab, David Swab, Barbetta Swab, John Rudebaugh, Franklin Rudebaugh, Melville Rudebaugh, Edward Rudebaugh, Daniel Rudebaugh and Samuel Rudebaugh, plaintiffs, and Alexander Rudebaugh, Harrison Rudebaugh, Albert Rudebaugh, Henry Rudebaugh, Matilda Rudebaugh, Harriet Rudebaugh, Ann Rudebaugh and Mary Ellen Rudebaugh, defendants.</p> <p>The case stated shows these facts: — ■</p> <p>John Rudebaugh the first died in July 1828, seised of the land in dispute, having made his will, dated October 16th 1822, and proved July 22d 1828. By his will he provided as follows:</p> <p>“I give to my wife Elizabeth all my real estate during her natural life, * * * and all my personal estate, and all the money and outstanding debts, * * * during her natural life, and at her decease the same to return back and be equally divided between ■my son John Rudebaugh’s children, and my daughter Lydia’s, intermarried with Martin Funk, their children, I give devise and bequeath the same to their heirs and assigns, subject to the following restrictions, viz: That my son John shall have the use of his children’s share during his life, after the debts to be yet mentioned are paid. Lydia Funk’s children to pay their mother if so be she stands in need, $50 per year during her life. It is understood that the division of land between my son John Rudebaugh’s children and Lydia’s children to be in the following manner: * * * and after my beloved wife’s decease, and the above land divided, the above children of John Rudebaugh to be liable if their father is dead, to pay $700 for the use of Adam and David, sons of the deceased John Rudebaugh, Sr., but if their father John Rudebaugb, Jr., should be alive and have the use of their share of the land, he to pay the same or the land to be rented until paid, and likewise at my wife’s decease, the share that falls to Lydia’s children to be rented until they pay the said Adam and David before mentioned $700 of their share, and the said Lydia’s children to keep for their aunt Susan a cow’s pasture, * * * and likewise I give unto John Rudebaugh, Lydia Funk and Susan Rudebaugh, all my personal estate, u;hich will be found after my wife’s decease; likewise I give to my eldest son Adam Rudebaugh $700. Likewise I give to my son David Rudebaugh $700; to be paid by my son John if alive, or his children, and the children of Lydia Funk, in the following manner after my wife’s death.” * * * He gave also a number of small pecuniary legacies.</p> <p>Elizabeth Rudebaugh, the widow of the testator, died in 1829.</p> <p>John Rudebaugh, the son of the testator, died about February 26th 1869. The plaintiffs are children and descendants of deceased children by his first wife, these children having been born before the death of the testator and Elizabeth his widow. He had also three children, Joseph, Simon Reuben, and Sarah Jane, by this same wife, born after the death of the testator and his widow. He had a second wife who left no children. The defendants are the children of his third wife, also born after the death of the testator and his widow.</p> <p>Upon these facts it was agreed:—</p> <p>“ If the court should be of the opinion that the children of John, the son, who were born before the death of John, the elder, and his wife Elizabeth, are entitled to the land, then judgment to be entered for the plaintiffs generally.</p> <p>“If the court should be of opinion that the land belongs to all the children of John, the son, as tenants in common, then judgment to be entered for the plaintiffs, including Joseph, Simon Reuben, Sarah Jane, for the undivided twelve-nineteenth parts, and as to the residue for the defendants, including Mary Ellen, married to Demore, but who is not one of defendants.</p> <p>“ If the court should be of opinion that the defendants, Mary Ellen, wife of Demore, are entitled, under the will of John, the' son, to the undivided two-thirds of'the land in dispute, then the judgment to be entered accordingly.”</p> <p>The court entered judgment, October 17th 1871, for the plaintiffs generally on the case stated.</p> <p>This was assigned for error by the defendants upon the removal of the record to the Supreme Court.</p>

160, to October and November Term 1872. This action was commenced before a justice of the peace of Armstrong county, by William I). Robinson against The American Union Express Company, and on the 7th of March 1870 was removed by appeal from his judgment into the Court of Common Pleas. It was brought to recover the value of a demijohn of cherry brandy, lost, as was alleged, by the negligence of the defendants.

<p>1. A paper required to be stamped cannot, under the Act of Congress of July 13, 1866, be given in evidence if unstamped.</p> <p>2. The want of a stamp is a disqualification of the paper in the hand of the delinquent to prevent its use until he pays the tax.</p> <p>3. The exclusion of the paper as evidence applies to State as well as Eederal courts.</p> <p>4. The Act of 1866, excluding as evidence an unstamped paper, is not a rule for regulating evidence, but is a disqualification of the instrument for want of payment of tax.</p> <p>6. The various Acts of Congress relating to revenue and taxation considered and compared.</p>

<p>Appeal from the District Court of Allegheny county: In Equity: No. 183, to October and November Term 1871.</p> <p>On the 10th of April 1866, and the 13th of April 1867, respectively, Robert Stewart,. Maurice Mulconnery and John Fleming filed a bill and an amended bill against The Pittsburg, Fort Wayne and Chicago Railroad Company; The Pittsburg, Fort Wayne and Chicago Railway Company, and George W. Cass, T. D. Messier and J. P. Henderson.</p> <p>The bill averred:—</p> <p>1. The incorporation of The Pittsburg, Fort Wayne and Chicago Railroad Company in 1865, by the legislatures of Pennsylvania, Ohio, Indiana and Illinois.</p> <p>2, 3, 4. On the 19th of October 1856 the plaintiffs in this bill sued out in the District Court of Allegheny county a foreign attachment against Lewis Broad, in which the railroad company were made garnishees. On the 15th of April 1863 the plaintiffs recovered judgment in that attachment against Broad for $56847.73. A scire facias was issued against the railroad company as garnishees, and on the 14th of January 1864 there was recovered against them a judgment, finding that there were in their hands at the service of the writ certain notes belonging to Broad, and at that day the garnishees owed Broad $19,633.09;. and that the plaintiff should have execution against the garnishees, to be levied of the notes of Broad in their hands to the amount of the plaintiffs’ judgment, and if the garnishees should refuse to deliver the notes or pay the amount of the judgment, that it should be levied of the garnishees’ own goods.</p> <p>5. The garnishees refused to deliver the notes, and the sheriff could find no goods, &c.</p> <p>6. The notes of Broad, in the hands of the railroad company, were three in number, amounting in all to $17,643.39, they were known as freight-warrants, and were not embraced in any mortgage of the company but were entitled to priority of payment from the company’s assets, and were unaffected by any sale of the road or property.</p> <p>7. In March 1860 proceedings to foreclose a mortgage of the company having been commenced in the Circuit Court of the United States, of the Western District of Pennsylvania, auxiliary to similar proceedings in the Circuit Court of the United States of Ohio, tbe railroad company procured an Act of Assembly of Pennsylvania, of March 31st 1860, entitled, “ An Act to provide for the re-organization of The Pittsburg, Fort Wayne and Chicago Railroad Company: in pursuance of that act and of private agreement between the mortgage bondholders and the stockholders of the railroad company, the said company was re-organized under the name of “ The Pittsburg, Fort Wayne and Chicago Railway Company, and all the assets and property of the railroad company, including the notes or freight-warrants of Broad, and subject to the lien of the plaintiff’s attachment, went into the possession of the railway company.</p> <p>8. By reason that the stock and franchises of the railroad company were not covered by the foreclosed mortgage; and by reason of an agreement and understanding to that effect between the bondholders, the stockholders and the purchasers of the mortgaged premises at the marshal’s sale; the stock of the railroad company became the stock of the company as re-organized under the name of “ The Pittsburg, Fort Wayne and Chicago Railway Company.”</p> <p>9. By reason of the re-organization effected under the aforesaid understandings and the Act of Assembly the railway company became and were subject to the liabilities of the railroad company, and to. the plaintiffs for their judgment against the railroad company.</p> <p>10. Whether the railway company are liable or not for the debts of the railroad company, they are liable to the plaintiffs on their judgment/because they took into their possession the notes or freight-warrants of Broad.</p> <p>11. The defendants refuse to account to the plaintiff for the freight-warrants or pay their judgment.</p> <p>12. (Amended bill.) On the 19th of Octobep 1858, G. W. Cass was president, John P. Henderson was treasurer, and T. D. Messier comptroller or auditor of the railroad company. They were in possession, custody, &c., of the papers and other valuables of the railroad company, including those in custody of the railroad company as trustees; amongst which papers, &c., were the notes or freight-warrants of Broad, attached as beforesaid; under the new arrangement, Cass, Henderson and Messier continued to hold the same positions in the railway company as they held in the railroad company. The plaintiffs “ seek to discover what became of the freight-warrants, notes, &c.,” belonging to Broad, and whosoever, whether the railway company or Cass, Henderson or Messier, “ may be found chargeable with the possession of the said warrants, ” &c., shall be ordered to produce and surrender the warrants, &c., for the use of the plaintiffs, or account for their value to the extent of the plaintiffs’ claim.</p> <p>The prayers of the bill were for a decree: — ■</p> <p>1. That the railway company are liable for the debts of the railroad company, and for the plaintiffs’ judgment against the railroad company.</p> <p>2. If such decree be not made, that the railway company be declared to be “ the trustee and bailee for the use of the plaintiffs of the said notes or freight-warrants,” of Broad, and be ordered to produce and deliver these warrants for the. use of the plaintiffs, or pay the amount of their judgment against the railroad company.</p> <p>The defendants answered:—</p> <p>1. Admitting the incorporation of the railroad company, denied that they were ever known by that name or that the two corporations were identical.</p> <p>2. They had no corporate existence on the 19th of October 1858, having been incorporated long afterwards by the legislatures of Pennsylvania, Ohio, Indiana and Illinois, and all the matters charged in paragraphs 2, 3 and 4 in the bill, took place before their incorporation, and defendants had no knowledge of them.</p> <p>3. They have no knowledge of the matters in the 5th paragraph of the bill.</p> <p>4. They have no knowledge of the notes mentioned in the 6th paragraph of the bill, or whether they were embraced in any mortgage of the railroad company, but if such notes existed they were a debt of the railroad company and were cut off, if not before paid, by the sale of the property and franchises of the railroad company under the mortgages of that company, by virtue of the decree of foreclosure before mentioned.</p> <p>5. They admit the proceedings mentioned in the 7th paragraph of the bill, and that the property and franchises of the railroad company were sold under decrees of foreclosure of the mortgage, to certain gentlemen for $2,000,000; that afterwards the railway company was incorporated by the states of Pennsylvania, Ohio, Indiana and Illinois, and became the purchaser of the property, and has since owned it. They denied that the notes of freight-warrants of Broad ever came into the possession or control of the railway company.</p> <p>6. To the 8th paragraph of the bill. They deny that the franchises, &c. of the railroad company were not covered and conveyed by the mortgages (admitting that the stock was not covered), they aver that the mortgages were a first lien on franchises and property of the railroad company, and the sale passed to the purchaser a clear title and free from all claims of creditors of the railroad company, but by an arrangement afterwards made, the stockholders of the railroad company were upon certain conditions allowed to convert their stock into the stock of the railway company.</p> <p>7. They denied in answer to the 9th paragraph of the bill, that the railway company was by agreement or law liable for the debts of the railroad company, or for the amount of the judgment against the railroad company.</p> <p>8. To the 10th paragraph of the bill. They deny the liability to plaintiffs on account of their judgment by reason of their receipts of the freight-warrants, and that the warrants were ever in their possession.</p> <p>9. They deny upon information, &c. that on the 19th of October 1858, the railroad company were indebted to Broad, or held any freight-warrants or other securities belonging to him, but on the 9th of July 1858, and before the attachment, Broad assigned to S. A. Taylor and N. Gleason, all his claims, &c., against the railroad company, including the freight-warrants, and the railroad company was before October 19th 1858 notified of the assignments. Taylor and Gleason brought suit in the Circuit Court of the United States for Illinois, against the railroad company, to recover their indebtedness to Broad, and recovered judgment against the railroad company for $41,468.18, which was the whole amount due to Broad, and which by1 agreement with Broad was to have been paid in bonds and freight-warrants. This was all the railroad company owed Broad. Soon after the judgment, it was compromised by payment of the railroad company to Taylor and Gleason for $17,500 in freight-warrants, which were delivered to Taylor and Gleason before the railway company existed. There were no freight-warrants of the railroad company in favor of Broad when the plaintiff’s suit was commenced, nor at the time of the judgment ; the freight-warrants were payable to bearer in freight on the railroad, and were sold by Taylor and Gleason to other parties.</p> <p>Messier and Cass answered:—</p> <p>1. That Cass, Messier and Henderson were respectively president, auditor and treasurer of the railroad company, and had possession of the money, ehoses in action, papers and other valuables of the company, but did not know of the company holding anything as trustees for others.</p> <p>2. There were not amongst those articles any freight-warrants, or notes belonging to Broad, nor were such articles ever in their possession: the facts in relation to them are before set forth in paragraph 9th of the answer.</p> <p>8. Cass, Messier and Henderson, hold the same positions in the railway company, which they held in the railroad company, except that the title of Comptroller was substituted for that of Auditor. On the 30th of April 1864, Messier ceased to be comptroller and became assistant-president; the other two continued in their offices.</p> <p>A replication was filed and an examiner appointed. Afterwards B. F. Lucas was appointed master to take further testimony, &e., and report the facts together with the form of a decree.</p> <p>The master found the allegations of the 2d, 3d and 4th para-' graphs of the bill to be true; and that the three notes to Broad, mentioned in the 6th paragraph, were not embraced in any mortgage of the railroad company, were the property of Broad, and were unaffected by the sale of railroad company’s property.</p> <p>Referring to the Act of March 31st 1860, he said:—</p> <p>“ The purpose and object of this act are, in the opinion of the master, clearly indicated by its title. It was not for the purpose of creating a new, separate and independent corporation, but to re-organize one already in existence.</p> <p>“ Although the title to an act of the legislature was no part of the act itself, prior to the amendment to the Constitution of 1864, yet it may well serve to shed light upon the true intent of the act. Besides, the object of the act as indicated in the title, seems to be as clearly indicated in the fourth section of the act itself. It is there denominated a re-organization of the Pittsburg, Port Wayne and Chicago Railroad Company. Similar legislation was procured in the states of Illinois, Indiana and Ohio.</p> <p>“The mortgages against the railroad companies having been foreclosed on the 24th of October 1861, the trustees sold the road, property and franchises of the railroad company to James E. D. Lanier, John Edgar Thomson, Samuel J. Tilden, Samuel Hanna and Louis H. Meyer, as trustees for various persons whose names do not appear upon the record. This sale was confirmed’ by the Circuit Courts of the United States, in the several states of Pennsylvania, Ohio, Indiana and Illinois, and on the 18th of February 1862, the trustees executed a deed to the purchasers.</p> <p>“ On the 26th day of February 1862, a meeting was held in the city of Pittsburg, at the office of the Pittsburg, Fort Wayne and Chicago Railroad Company, for the purpose of organizing, or rather of reorganizing, under the Acts of Assembly herein before mentioned. That re-organization was then effected, directors elected, and the name of the company changed from ‘The Pittsburg, Fort Wayne and Chicago Railroad Company,’ to ‘The Pittsburg, Fort Wayne and Chicago Railway Company.’ The board of directors then met and proceeded with the transaction of the business pertaining to their office.</p> <p>“ On the 2d day of March 1862, John F. D. Lanier, Samuel J. Tilden, Louis H. Meyer, J. Edgar Thomson and Samuel Hanna, executed a deed to the Pittsburg, Fort Wayne and Chicago Railway Company, for the road, property and franchises of the Pitts-burg, Fort Wayne and Chicago Railroad Company.</p> <p>“ In the organization of the Pittsburg, Fort Wayne and Chicago Railway Company, the stockholders of the Pittsburg, Fort Wayne and Chicago Railroad Company became the stockholders in the reorganized company upon the same stock held by them in the old company, or in other words, their stock in the old organization was held and treated as stock in the new. * * *</p> <p>“Then is the Pittsburg, Fort Wayne and Chicago Railway Company, but the re-organization of the Pittsburg, Fort Wayne and Chicago Railroad Company?,</p> <p>“ The master has gone into a very careful review of all the facts found by him, which, in his judgment, bear either directly or remotely on this question, and, as the result of the review, he has been led to the conclusion that this question must receive an affirmative answer.</p> <p>“ In determining this question the evidence must be considered as a whole and not in isolated parts. Thus considered, we have the following summary of the facts:—</p> <p>“The Pittsburg, Fort Wayne and Chicago Railroad Company became largely indebted, some of its indebtedness was secured by bonds and mortgages, while other portions of it were not so secured. Of the latter class of indebtedness was a debt of about $41,000 to Lewis Broad. Lewis Broad was indebted to the present complainants in a sum exceeding $6000. He being a non-resident of the state, the present complainants brought a suit in this court, which was commenced by writ of foreign attachment, in which the said company was made a garnishee, and the debt due by them was attached in their hands. A judgment was subsequently recovered by these complainants, first against Lewis Broad, the debtor, and afterwards against the said company garnishee. The company, acting through its officers, when the proper execution was issued, and the proper demand made by the sheriff, in the language of the law, ‘ neglected and refused ’ to deliver up the securities which had been admitted by them and adjudged by the court to be in their hands, and to belong to the defendant Lewis Broad.</p> <p>“ In the meantime proceedings were commenced and prosecuted in the Circuit Courts of the United States of the various districts through which the road passed, to foreclose the mortgages given by said company as well as those given by other companies for the payment of which the said company was liable.</p> <p>“ Pending these proceedings the said company applied to the legislature of Pennsylvania, and subsequently to the legislatures of the states of Ohio, Indiana and Illinois, for the passage of acts to provide for the re-organization of the said company, which acts were passed by the respective legislatures named.</p> <p>“ The proceedings to foreclose the said mortgages were prosecuted, no defence of any kind having been made by the said company, and were finally consummated by a decree of foreclosure, an order of sale and a sale made to five parties, in trust for some person or persons, but who the cestui que trust was is not disclosed except by what was subsequently done.</p> <p>“ After the said sale had been made to the said five trustees, and a conveyance made to them, an organization or re-organization of the company took place, and a conveyance was made by the said five trustees to the company re-organized under the name of the Pittsburg, Fort Wayne and Chicago Railway Company.</p> <p>“ In this re-organization the stockholders of the. company under the.old organization became stockholders without purchasing any new stock, and the officers of the old organization had charge of the company and its affairs through and during all these proceedings, and were elected and continued to be such officers under the new arrangement.</p> <p>“From all these facts taken together the master is .of opinion, and so finds, that the present company is but a re-organization of the former one, and not a new and independent corporation ; that all this machinery was used but as a device to avoid the payment of the debts of that company, and that therefore the said company is liable for the amount of complainants’ judgment and costs.</p> <p>“ But even if this were otherwise, still if the securities for the indebtedness of the Pittsburg, Eort Wayne and Chicago Railroad Company to Lewis Broad, which were attached in the hands of the said company, went into the possession of the Pittsburg, Eort Wayne and Chicago Railway Company by its recognised officers or agents; and if the latter company was a new creation, a new corporation created and existing separate from and independent of the former company, the latter company held the said securities in trust for the present complainants, and if the said securities were permitted to go out of their hands and out of the jurisdiction of the court so that they could not be reached by the attaching creditors, or made available for the purpose of satisfying complainants’ judgment, then the said company is liable to the complainants for the amount of their judgment and costs.</p> <p>“ This then brings us to the consideration of the second question raised by the allegations contained in the seventh paragraph of complainants’ bill, and the denial thereof as contained in the fifth paragraph of defendants’ answer; and that question is, whether the said securities ever did go into the custody, control and possession of the'Pittsburg, Eort Wayne and Chicago Railway Company. * * *</p> <p>“ Upon this question the master finds record evidence of the fact that these securities did go into the custody, possession and control of the Pittsburg, Eort Wayne and Chicago Railroad Company.</p> <p>“ The answer of Thomas D. Messier to the interrogatories filed in No. 365, of April Term 1863, Stewart, Mulconnery & Co. against the Pittsburg, Eort Wayne and Chicago Railroad Company, admits the custody and possession of the notes or freight-warrants attached by complainants. This answer was sworn to by Mr. Messier on the 21st day of November 1863, and was filed in the cause and became a part of the record, and upon that answer the court rendered judgment in favor of the present complainants against the Pittsburg, Eort Wayne and Chicago Railroad Company.</p> <p>“Thomas D. Messier'was, at the time of the swearing to and filing of that answer, the comptroller of the Pittsburg, Eort Wayne and Chicago Railway Company, and, as he proves in his testimony taken in this case, the custodian of the securities in the possession of the said company.</p> <p>“But if the theory of the defendants in this case be the correct one, if the Pittsburg, Eort Wayne and Chicago Railway Company be a new and independent corporation and not a re-organization of the former company, then Mr. Messier did not hold the said securities as an officer of the former company, for that was dissolved. He could therefore hold the securities only as an officer of the company then in existence, as he himself proves that he held them in his official character.</p> <p>“ From the evidence in the cause as before referred to and the testimony of John P. Henderson, the treasurer of the company and one of the present defendants, the master is of opinion, and so finds, that the notes or freight-warrants which belonged to Lewis Broad, and which were attached by the present complainants in the hands of the Pittsburg, Fort Wayne and Chicago Railroad Company, did come into the control, custody and possession of the Pittsburg, Fort Wayne and Chicago Railway Company, and that the latter company did hold them in trust for the said complainants, as under all the circumstances disclosed in this case the law would imply such a trust, although none was expressed.</p> <p>“ But there is another view of this case which, in the opinion of the master, would render the Pittsburg, Fort Wayne and Chicago Railway Company liable to the present complainants for the amount of their judgment against the Pittsburg, Fort - Wayne and Chicago Railroad Company.</p> <p>“The stockholders of the Pittsburg, Fort Wayne and Chicago Railroad Company were entitled to nothing from their stock, upon the sale and transfer of the road, property and franchises of the company, either as dividends or otherwise, until the general creditors of the company were paid. It cannot be doubted that that company was insolvent.</p> <p>“We have then the case of the stockholders of an insolvent corporation entering into an agreement or arrangement with the parties who are to, and do, purchase the road, stock and franchises of their company in trust for a company which is to be organized whether that company is to be a new company or a re-organization of the old one.</p> <p>“ The nature and terms of that agreement or arrangement are not disclosed by those who had it in their power fully to disclose them.</p> <p>“ But it is clear from the allegations contained in the bill, the answer of the defendants and the testimony in the cause, that the result of that agreement or arrangement was either to admit the stockholders of the Pittsburg, Fort Wayne and Chicago Railroad Company to become stockholders in the Pittsburg, Fort Wayne and Chicago Railway Company upon their stock in the old company, or else to exchange their stock in the old company for stock in the new. In either case the stockholders are permitted to realize- the amount of their stock in whole or in part, while the general creditors are wholly unprovided for. And here it is to be observed that this arrangement or agreement is fully ratified by the Pittsburg, Fort Wayne and Chicago Railway Company, when its organization is effected.</p> <p>“ This being so, the transaction was fraudulent as against the general creditors of the Pittsburg, Fort Wayne and Chicago Railroad Company, and being fraudulent, neither the mediate nor immediate purchasers of the road, property and franchises are to be regarded as standing in the light of bonfi fide purchasers, and they hold the property in trust for the old company, and the general creditor can enforce his claim against such property. * * *</p> <p>“ The master is of opinion, and so finds, that the Pittsburg, Fort Wayne and Chicago Railway Company hold the property of the Pittsburg, Fort Wayne and Chicago Railroad' Company in trust for the latter company for the purpose of paying the debts due to its general creditors, if indeed it be not a mere re-organization of that company, and that therefore the said railway company is liable to the complainants for the amount of their judgment, with interest and costs.</p> <p>“ Then, as to the liability of the other defendants, George W. Cass, the president of the company, John P. Henderson, the treasurer, and Thomas D. Messier, the auditor under the old organization and the comptroller under the new, or re-organization.</p> <p>“ The master finds that the notes or freight-warrants attached by the complainants in the hands of the Pittsburg, Fort Wayne and Chicago Railroad Company were sent or taken by these defendants last named out of the jurisdiction of this court, so that they could not be forthcoming to answer the exigencies of the writ issued and placed in the hands of the sheriff for the purpose of collecting the amount of the judgment, if recovered by the present complainants, against the Pittsburg, Fort Wayne and Chicago Railroad Company.</p> <p>“ It appears from the answer of the defendants and the testimony of Mr. Henderson, that there was a reissue of the freight-warrants in 1861, after the re-organization of the company had been provided for, and that Mr. Cass, Mr. Henderson and Mr. Messier participated in this change or reissue and in the asportation of the said securities. It cannot be doubted that these parties had full knowledge of the existence and pendency of the attachment of the present complainants, for they were the very officers upon whom that attachment was served, and one at least of them had made answer to the interrogatories filed in that case.</p> <p>“ Under these circumstances it was the duty of thes-e parties to retain these securities to answer the exigencies of any writ of execution which might be issued upon a judgment recovered in the attachment suit, and not to permit them to be carried out of their possession and out of the jurisdiction of the court; and having done so they are, in the opinion of the master, and he so finds, liable to the complainants for the amount of their judgment and costs.</p> <p>“It is no objection to their liability that they acted under the direction of the company of which they were officers, any more than it is an objection to the liability of the company that the action was that of the officers. If the officers were in fault they may be liable to the company, or if the company was in fault it may be liable over to the officers, but both are liable to the parties injured by the act. * * *</p> <p>“ There was no evidence of assignment of the securities to Taylor and Gleason, or to any one else. Neither was there any competent evidence of any suit having been brought in the Circuit Court of the United States for the Northern District of Illinois, for the recovery of the indebtedness of the Pittsburg, Fort Wayne and Chicago Railroad Company to the said Lewis Broad. If such a suit was brought, and if such a recovery was had, and if it constituted any defence in this case, the facts alleged should have been proved by the record. That was the proper, and in the absence of an agreement to the contrary, the only evidence of the alleged facts.</p> <p>“ But if these allegations had been properly proved or admitted, they would, in the opinion of the master, constitute no defence which could avail any of the defendants here.</p> <p>“ The suit alleged to have been brought by Taylor and Gleason in the Circuit Court for the Northern District of Illinois is alleged to have been instituted only on the 22d day of February 1860, one year, four months and three days after the institution of the suit by complainants in the District Court.</p> <p>“ Although the District Court. of Allegheny county and the Circuit Court of the United States for the Northern District of Illinois may originally have had concurrent jurisdiction, yet the suit having been commenced in the District Court on the 19th of October 1858, the jurisdiction of that court became at once exclusive, and the Circuit Court of the United States had no jurisdiction on the 22d of February 1860.</p> <p>“ It was the duty of Taylor and Gleason, if they claimed to have a prior assignment of the securities attached, to intervene in the attachment suit in the District Court, and have the right determined there. Failing to do that, they would be concluded by the judgment.</p> <p>“It is therefore, in the opinion of the master, a matter of no consequence whether the allegations contained in the ninth paragraph of the defendants’ answer be proved or not, as they constitute no defence for any of the defendants in this proceeding.</p> <p>“Upon the whole case the master is of the opinion, and so finds :—</p> <p>“1. That the said defendants, the Pittsburg, Fort Wayne and Chicago Railway Company, are liable for the debts and defaults of the Pittsburg, Port Wayne and Chicago Railroad Company, and therefore for the payment of complainants’ judgment against the Pittsburg, Eort Wayne and Chicago Railroad Company;</p> <p>“2. That the Pittsburg, Fort Wayne and Chicago Railway Company, and the said George W. Cass, John P. Henderson and Thomas D. Messier, are the trustees and bailees, for the use of the complainants, of the said notes or freight-warrants belonging to the said Lewis Broad, and attached at the suit of complainants; and that the Pittsburg, Fort Wayne and Chicago Railway Company, and the said George W. Cass, John P. Henderson and Thomas D. Messier, ought to be decreed and ordered to produce and deliver the said notes or freight-warrants to and for the use of the present complainants, or in default thereof to pay to the said complainants the amount of their said judgment against the Pittsburg, Fort Wayne and Chicago Railroad Company, together with the interest and costs which have accrued thereon, and the costs of this present suit.” * * *</p> <p>The Pennsylvania Act of Assembly provided :</p> <p>“ Sect. 1. In case the railroad of The Pittsburg, Fort Wayne and Chicago Railroad Company should be sold by virtue of any mortgage or deed of trust, * * * the' persons on account of whom the purchase * * * shall have been made * * * are constituted a body corporate,” &c. That, after notice as provided in the act, the purchasers shall meet to elect directors, and at the election “ the persons for whom the purchase shall have been made shall be entitled to vote in proportion of one vote for each $100, of par value, which they may have contributed in bonds, entitled to distributive shares in the proceeds of such sale, or in cash towards the purchase * * * all persons holding bonds * * * prior in lien to those by virtue of which such sale shall have been made shall be entitled to one vote for every $100 of the par value of the said bonds.” * * * The corporation created by the act to have power to “ acquire by purchase or otherwise, and hold, &c., The Pittsburg, Fort Wayne and Chicago Railroad * * * and all equipment * * * all lands, property, franchises,” &c., * * * and to operate it.</p> <p>“ Sect. 8. The said corporation, formed pursuant to this act shall, within six months after its organization, likewise have power to assume such debts, liabilities and claims against the said Pittsburg, Fort Wayne and Chicago Railroad Company, and make such settlements or adjustments with any of the stockholders, or other parties interested therein, as it may deem proper, and for the said purposes to use such portion of the stock or bonds hereby authorized to be created, and in such manner as it may deem necessary.</p> <p>“ Sect. 4. Full authority is hereby given to the corporate authorities of the several county, township, city, village or other municipal corporations, owning or holders of stock in the said company, and to all persons holding the same in any fiduciary capacity, to accept and receive, under the re-organization, such portion of the new stock as may be apportioned to the stock so owned and held.”</p> <p>The evidence by Messier was that Q-. W. Cass, T. D. Messier and J. P. Henderson held substantially the same offices in the railway company as they had in the railroad company, Messier having some time subsequently to the organization of the railway company been elected their assistant president; whatever papers had been in their possession as officers of the railroad company, remained in their possession under the organization of the railway company. Immediately after the execution of Broad’s freight-warrants, they were sent, by order of the president, under the advice of their attorney in Chicago, to be deposited with the clerk of the Superior Court at Chicago, in pursuance of an order of that court. These warrants were executed early in 1861, in the form of a drafijj. drawn by the auditor, accepted by the treasurer, and payable in money due the company for the transportation of freight, and amounted to between $17,000 and $18,000. The land bonds were secured by mortgage on special real estate of the company not covered by the general mortgage; $19,000 of those bonds were sent to Chicago in the latter part of 1860, through the president; they had been previously in J. Edgar Thomson’s possession, who was chief engineer; the freight-warrants have since been paid.</p> <p>“ Upon the re-organization of the new company, the stock of the old company — such part of it as the holders thereof had assented to a certain agreement for a re-organization of the affairs of the old company — was converted into the stock of the new company. The great majority of the stock agreed to a re-organization. By this agreement the stockholders of the old company were not to pay any money in consideration of the new stock.”</p> <p>J. P. Henderson testified:—</p> <p>“I was treasurer of The Pittsburg, Fort Wayne and Chicago Railroad Company; am now treasurer of The Pittsburg, Fort Wayne and Chicago Railway Company. Lewis Broad was a contractor and creditor of The Pittsburg, Fort Wayne and Chicago Railroad Company. I became treasurer of the railway company immediately upon its organization. The freight-warrants were in the custody of the auditor; the real estate bonds were in the hands of the treasurer. The freight-warrants were evidences of indebtedness issued by the auditor, and did not come into the possession of the treasurer. My duties as officer of the company did not make it necessary for me to have any knowledge of any freight-warrants that might have been in the custody of the company. These freight-warrants were acknowledgments of indebtedness in favor of the person named therein.</p> <p>“ A freight-warrant, as used by that company, was an evidence of indebtedness in favor of a person named therein or bearer, for a specified sum, and payable out of freights earned by the company. The sum so engaged to be paid was not considered as covered by the mortgage of the company, but was a substitute for ready money which the company' might not have, and to give the holder of it something that he might dispose of for money. I presume this to be the object of the issue; it is an extraordinary issue.”</p> <p>Exceptions were filed to the master’s report, and after argument it was “ decreed that the complainants’ bill be dismissed out of this court, and that the complainants pay the costs in this case.”</p> <p>The complainants appealed to the Supreme Court, and assigned for error:—</p> <p>1. Dismissing complainants’ bill.</p> <p>2. Not decreeing as prayed for in complainants’ bill.</p> <p>3. Not decreeing that The Pittsburg, Fort Wayne and Chicago Railway Company were liable to complainants for the amount of their claim against The Pittsburg, Fort Wayne and Chicago Railroad Company.</p> <p>4. Not decreeing that George W. Cass, T. D. Messier and J. P. Henderson were liable to complainants, as alleged in their bill.</p>

<p>Error to the Court of Common Pleas of Allegheny county: No. 54, to October and November Term 1872.</p> <p>This was an action of ejectment brought to March Term 1871, of tbe court below, by Benjamin Coursin against Susan Wilson and Bichri Wilson, to recover a lot in McKeesport.</p> <p>The title of the premises was in Susan Wilson, one of the defendants, on the 18th of July 1858. On the 15th of April 1861, Susan Wilson, being then the wife of Benjamin Wilson, was by virtue of the Act of May 4th 1855, Pamph. L. 430, 1 Br. Purd. 692, pi. 56, decreed to be a feme sole trader, under the Act of February 22d 1718, 1 Sm. L. 99, 1 Br. Purd. 692, pi. 1, and it was decreed that her property “ shall be subject to her free and absolute disposal during life, or by will, without any liability to be interfered with or obtained by her husband, Benjamin Wilson,” and the court decreed that a certificate issue to Mrs. Wilson, authorizing her to act and have the power to transact business, &c.</p> <p>On the 25th of April 1861, Mrs. Wilson, her husband being still living, conveyed the premises by deed from herself alone to Sarah D. Hammer.</p> <p>On the 13th of June, Sarah D. Hammer, with her husband, executed a mortgage of the premises to Benjamin Coursin, the plaintiff. A scire facias was issued on the mortgage, and judgment recovered September 10th 1868. Under a levari facias the premises were sold by the sheriff to Coursin, and sheriffs deed made to him February 6th 1869.</p> <p>On the trial, February 19th 1872, before Sterrett, P. J., the foregoing facts were given in evidence, under objection and exception:—</p> <p>The court charged: * * *</p> <p>“ The question then arises, whether Mrs. Wilson, under the decree of the court declaring her a feme sole trader, had power to convey title to Mrs. Hammer ? If she had, then the plaintiff, Coursin, acquired such title as Hammer and his wife had in the lot. This is a question of law, which we will reserve for future consideration.</p> <p>“ For the present, we instruct you, pro forma, that under and by virtue of the proceedings and decree of the Court of Common Pleas, Susan Wilson was empowered to convey title to Mrs. Hammer, by her deed of April 25th 1861, without her husband joining therein, and that such title as Mrs. Hammer acquired by said conveyance passed to the plaintiff, Coursin, by virtue of the sheriff’s sale and conveyance under the mortgage of Hammer and wife, and consequently the plaintiff is entitled to your verdict, which will be entered, subject to the opinion of the court in banc on the following question of law reserved, viz.:—</p> <p>“ Whether, under and by virtue of the proceeding and decjtle of the Court of Common Pleas, Susan Wilson was enabled to pass title to the lot in question to her vendee, by deed in which her husband, Benjamin Wilson, did not join ?</p> <p>“ And if the court shall be of opinion that the law is with the plaintiff, then judgment to be entered in his favor on the verdict; but if the court shall be of a contrary opinion, then judgment to be entered in favor of the defendants, non obstante veredicto.”</p> <p>The verdict was for the plaintiff.</p> <p>The court afterwards entered judgment on the verdict in favor of the plaintiff, on the question of law reserved.</p> <p>The defendants took a writ of error', and assigned for error the rulings on the evidence, and entering judgment on the reserved point.</p> <p>The Act of 1855 is as follows : — ■</p> <p>“ Sect. 2. 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 11 An Act concerning feme sole traders,’ and be subject as therein provided, and her property, real and personal, howsoever 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 h'e were previously dead.</p> <p>“ Sect. 4. That creditors, purchasers and others may with certainty and safety, transact business with a married woman under the circumstances aforesaid, she may present her petition to the Court of Common Pleas of the proper county, setting forth under affidavit the facts which authorize her to act as aforesaid, and if sustained by the testimony of at least two respectable witnesses, and the court be satisfied of the justice and propriety of the application, such court may, upon such notice as they may direct, make a decree and grant her a certificate, that she shall be authorized' to act, have the power and transact business as herein-before provided; and such certificate' shall be conclusive evidence of her authority, until revoked by such court for any failure on her part to perform the duties of this act made incumbent upon her, which may be ascertained upon the petition of any next' friend of her children.”</p>

<p>1. B. contracted for the purchase of oil-laud from S. and sold shares with the purpose of obtaining an incorporation of a company. The vendor conveyed to “ The Middletown Oil Company,” no such company having been incorporated. The deed passed no title.</p> <p>2. M. bought a share of B., who gave a receipt for $250, “ first instalment one share on oil-land purchased by B., in St. Clair, on Beaver Creek, Smith’s Ferry.” Held, M. obtained no title to any part of the land.</p> <p>3. M. sued B. to recover the $250 paid by him, on the ground of misrepresentation. Held, that tender of a reconveyance by B. before action was not necessary.</p> <p>4. M., having rescinded the contract, and the jury having found it invalid, he had no title to any of the land, and had therefore nothing to reconvey.</p> <p>5. M., by his rescission and recovering the money, was estopped from asserting title to the land.</p> <p>6. The acts and declarations of one of several parties acting in concert in an illegal transaction for their joint benefit are the acts and declarations of all.</p> <p>7. Several persons subscribed and paid for stock as M. did, and at the same time. Held, the individual contract of each, and on rescission each must sue alone.</p> <p>8. Babcock a. Case, 11 P. F. Smith 427 ; Simons v. Vulcan Co., Id. 202, followed.</p>

<p>1. An Act of Assembly, for making the state canals, enacted that darn-ages for taking land should be assessed by an inquest, as specified, and that, after confirmation of the inquisition, the assessment should be paid by the canal commissioners and the state be seised of such land “ as of an absolute estate in perpetuityby another act, assessments of damages might be made through the Quarter Sessions, on application of the owner, in a year after completing the work on his land, and the canal commissioners might urdíase the land for the state. Robinson granted to the state, land occupied y the site of the canal, “ excepting therefrom ground for a basin," the canal and basin were constructed over the land released and no assessment was made through the Quarter Sessions. Held, that the Commonwealth took an absolute estate in perpetuity.</p> <p>2. The Commonwealth sold the canal and basin, and the vendee abandoned them. Held, that the land did not revert to Robinson.</p> <p>3. The exception of the “ basin” from the grant excluded that ground, and left it in the same situation as if no grant at all had been made.</p> <p>4. The right of the Commonwealth was not affected by the owner’s .right to have damages assessed.</p>

<p>1. The councils of Pittsburg are authorized to improve streets and collect the cost by “assessment of an equal sum per front foot” on the properties abutting on the portions of the streets thus improved, which should be a lien. They ordained the grading of a street from M. to B. streets, and a contract was made for that distance; it appearing that part had been graded, the grading under the supervision of the engineer was done only between P. and C. streets, part of the distance ordained. Held, that the assessment was to be on property between P. and O. streets.</p> <p>2. Notice of assessment is to be given that the parties may have errors corrected at the engineer’s office, and the claim be paid to the treasurer. Held, that objections to the assessment not having been made under the notice could not be made to a scire facias on the lien.</p> <p>3. The contract being between the city and contractor, and the city adopting the action of its officers, an owner could not object that the whole was not graded.</p> <p>4. The assessment was on a whole lot, which had been divided into smaller lots by the owners, but was not on the city plan. Held, that the assessment was properly made on the entire lot.</p> <p>5. An owner paid the contractor part of the cost; he afterwards assigned his claim, for value, without notice to the assignee or the city of the payment. Held, that the city to the use of the assignee could recover the whole amount.</p>

<p>Error to the Court of Common Pleas of Allegheny county: No. 16, to October and November Term 1872.</p> <p>This was an action of assumpsit brought June 6th 1870, by Henry C. Fry, trustee of Minerva Everson for her use against Richard Everson, the husband of Minerva Everson, to recover the amount claimed to be due her under articles of separation as follows:—</p> <p>“ This indenture of three parts, made the 30th day of September, A. D. 1869, between Richard Everson, of, &c., of the first part, and Minerva Everson, his wife, of the second part, and Henry O. Fry, of, &c., trustee of the said Minerva Everson, of the third part.</p> <p>“ Whereas divers disputes and unhappy differences have arisen between the said party of the first part and his said wife, for which reason they have consented and agreed to live separate and apart from each other during their natural lives. Therefore this indenture witnesseth, that the said party of the first part, &c., doth hereby covenant, &c., with the said trustee, and also with his said wife, that it shall and may be lawful for her, * * * to live separate and apart from him, * * * that all the articles of clothing of said Minerva Everson, household goods, furniture, &c., now in the house occupied by said parties, except the parlor furniture, &c., shall remain in the custody of his said wife, so long as she shall live free from any interference therewith on his part, and that he will not claim or demand at any time hereafter any property of any kind' which may be devised to her or which she may hereafter acquire, and that she shall and may enjoy and absolutely dispose of such after-acquired property as if she were a feme sole and not married; and further, that he shall and will well and truly pay or cause to be paid unto her, his said wife, for and towards her better maintenance and support, the yearly sum of six hundred and thirty dollars, in monthly payments- of $52.50 each, until the youngest child shall be of age, after which time the payments to her shall be regulated as hereinafter provided. In case she should sooner die, all payments are to cease. From said monthly payment of $52.50 for each child that shall die or leave her custody, or become of age, there shall be deducted the sum of ten dollars, and after all the children shall become of age, or shall go to live with their father, or in case of the death of all of them, then the amount to he paid to the said Minerva Everson shall be determined by three disinterested parties, * * * the award of a majority of whom shall be final and conclusive, and the amount so fixed shall be paid to the said Minerva Everson during the residue of her natural life.</p> <p>“And the said Minerva Everson agrees to accept the provisions hereinbefore made for her, and that she will not at any time hereafter in any manner annoy or interfere with the said Richard Everson at his separate home, * * * and in consideration of the said provision she releases any and all right of dower which she has or may have in the estate real and personal of her said husband, and agrees that upon request made she will * * * sign, acknowledge and deliver such quit-claim as may be necessary effectually to bar any such right. * * *</p> <p>“ And it is further stipulated that if the said Minerva Everson should at any time refuse or fail to comply with any of her covenants herein made, such refusal shall work a rescission of this agreement, and the said Richard Everson shall no longer be bound to pay her the amount hereinbefore provided, and the said trustee * * * agrees that the said Minerva Everson shall faithfully comply with each and all of her covenants herein made.”</p> <p>The defendant filed an affidavit of defence “ that Mrs. Everson agreed to vacate the house occupied by her in consideration of the agreement upon which this suit is brought, as soon as she could get a house, and that she would make diligent efforts to get one, and said defendant then agreed that if she would do this she might have the house free of rent till January 1st 1870. . Affiant says that said Mrs. Everson never attempted to get a house, as she was bound to do by her agreement, and therefore claims that she is liable to defendant for the rent of said house from October 1st 1869, being about the date of said agreement; that as affiant is informed and believes said house would rent for about $25 or $80 per month, and she has occupied it for a period of eight months up to June 1st 1870, making a rental due by her of at least $225.” * * *</p> <p>The defendant pleaded</p> <p>“ Covenants performed, absque hoc, &c., &c., payment with leave, &c., and the special matter contained in affidavit of defence.”</p> <p>On the trial of the case, September 29th 1871, before Stowe, J., the defendant made the following offers of evidence :—</p> <p>1. “ That at the execution of this agreement it was agreed by Henry C. Fry and Minerva Everson that she should leave the premises then occupied by her, and surrender them to defendant on or before January 1st 1870, and that defendant has demanded possession thereof and compliance with said agreement, and that she has failed and refused to comply therewith and to deliver possession to said defendant as she was bound under said agreement to do.”</p> <p>2. “ To ask the witness on the stand (Richard Everson) whether or not it was agreed that Minerva Everson should not reside in the house in which she resided at the time of the execution of the agreement of separation longer than January 1st 1870, and that she was to remove from said house sooner than said first day of January 1870, if she could obtain a house; that she still remains in said house against the consent of witness, who is the owner of the house, and that though repeatedly called upon by and for him to vacate said house, she has always refused to do so.”</p> <p>The offers were objected to by the plaintiff for the reason that there is no such agreement or stipulation contained in the articles of agreement sued on: and that the offers are to contradict the terms of the written agreement by parol evidence.</p> <p>The court rejected the offers and sealed bills of exceptions.</p> <p>The court charged:—</p> <p>“ The jury are instructed that if they believe that this paper in evidence was signed by the parties as alleged, and not denied by defendant, plaintiff is entitled to recover the amount specified to be paid them, less the amount paid up to the time suit was brought, less the value of the property she is alleged to have kept, and which she should have allowed defendant to have.”</p> <p>The verdict was for the plaintiff for $227.85.</p> <p>The defendant took a writ of error and assigned for error the rejection of his offers of evidence.</p>

<p>1. Plaintiff declared against a corporation and its president and secretary jointly, there was no evidence of a joint contract by the defendants, nor of any joint relation, except as a corporation and its officers acting on its behalf. Held, that the action could not be maintained.</p> <p>2. The claim was for work for the corporation, the president told plaintiff that he would see it paid for; this did not create a joint liability, but was a several assumption as surety and not as principal.</p> <p>3. The defendants having been declared against in general assumpsit, their individual liability as stockholders could not be enforced in that form; it must be enforced as provided in the statutes.</p> <p>4. Brinham v. Wellersburg Coal Co., 11 Wright 43; Hoard v. Wilcox, Id. 51, adopted.</p>

<p>1. The plaintiff was owner of land through which a railroad was constructed ; without receiving damages she solí the land; the company after-wards settled with the purchaser and paid him the damages. Meld, That she could recover the amount from him.</p> <p>2. The damages were a personal claim of the owner when the injury occurred ; they did not run with the land, nor pass by the deed, although not reserved.</p> <p>3. Schuylkill Nav. Co. u. Decker, 2 Watts 343, followed.</p>

<p>Appeal from the District Court of Allegheny county: No. 67, to October and November Term 1872.</p> <p>In the distribution of the proceeds of the sheriff’s sale of real estate sold under a mortgage executed by John C. Smith and Adaline, his wife.</p> <p>The sheriff made a special return that he had sold the land for $1475, and that in pursuance of the Act of April 10th 1862, relating to the distribution of the proceeds of sheriffs’ sales in Allegheny county, he reported a schedule of distribution by which it appeared, that after payment of costs, &c., and certain liens which were all that appeared to be against the property, he had appropriated $715.95, the residue of the proceeds of sale, to Mrs. Adaline Smith, the defendant.</p> <p>J. Hamnett & Sons, judgment-creditors of John C. Smith, filed exceptions to the sheriff’s return and distribution, averring that although the title to the land was in the name of Mrs. Smith, in contemplation of law it belonged to her husband, it having been conveyed to her during coverture; and- that it was actually his, having been purchased and improved by him with his own funds.</p> <p>On motion of the attorney of Mrs. Smith, W. F. Austin, Esq., was appointed auditor to take testimony and report distribution, together with the facts. The money was afterwards ordered into court.</p> <p>The auditor reported:—</p> <p>“ * * * The defendants in this case are John O. Smith and Adaline Smith, his wife; the lot of ground and house sold under this writ and therein described is in the name of Adaline Smith, who claims the fund. The mortgage given in part payment of purchase-money, &c., was made by Smith and wife to Judge Mel Ion. Hamnett & Son are claimants on the fund to the extent of a judgment against John C. Smith for $165, with interest from October 14th 1870. John C. Smith did not appear; his residence is unknown, but an appearance by attorney was made in his behalf, who making no claim nor presenting any ground for claim, has not been considered by auditor as claimant. Adaline Smith, by a former marriage with John B. Bruner, had three children, of whom she was guardian, and as guardian, on April 25th 1867, entered into articles of agreement with Thomas Mellon, for the purchase of the lot from which this fimd is realized, and for which she was to pay $400 in equal semi-annual payments. Deed to be made to her when all the purchase-money was paid. On October 22d 1868, a deed for the property was made to Mrs. Adaline Smith. I find that the reason of the deed being made to her individually and not as guardian, was that Mr. Mellon requested it, as he told her the mortgage as guardian would not be good. She wanted the deed in the children’s name.</p> <p>“ A very common frame house was built, which cost, with other improvements, about $800.45, and the mortgage in thio case was given for unpaid purchase-money, the balance on account of building materials furnished by Mellons, and ninety-five dollars in cash, with probably a small amount of interest, the mortgage being for $825.41, reduced subsequently to $599. The lumber and building materials from Mellons were given on the credit of Adaline Smith, she paying some $50 advance on it and the balance along as she had the money; kept a pass-book with Mellons, in which the materials were entered and the cash credits thereon. She also paid other money for building, &c., to other parties. She also as payment for building furnished boarding to workmen of a carpenter, to about the amount of $60. The money necessary to keep the house during that time she borrowed, and afterwards repaid out of her own funds. John C. Smith paid bills to the aggregate of $30, including some $12.50 in shoemaking. Mrs. Smith gave him the money to pay these amounts, either at the time, before or after their payment. On the 1st day of December Í870, the unpaid balance of mortgage was purchased by G. II. Heuves, as an investment, the property was sold at sheriff’s sale to him for the sum of $1475, and the residue, after payment of the mortgage, is the sum now in court for distribution. The question now is, from what source came the moneys to pay the building and improvements other than that portion included in the mortgage.</p> <p>“ Mrs. Adaline Smith, on her own account, and as guardian of her three children by Bruner, a deceased soldier, received for bounty, pension and back pay, $1071.41. From estate of Ephraim Bruner, her husband’s father, $386.33, making a total sum of $1457.80, which she had independently of her husband, John C. Smith. In addition to the payments on house and lot, Mrs. Smith paid on mortgage $229.16, which was paid out of the last instalment of the money received from the Bruner estate. From the uncontradicted testimony of. Mrs. Smith, the auditor finds that all the money expended on and about the building of the house was paid by her out of the sums of money before enumerated; that Smith was a drinking man, insolvent, who did but little work at anything, and was mainly supported by his wife. The testimony of Mrs. Smith is corroborated by that of James Mellon, from whom the materials were purchased, and who acted as the agent of Thomas Mellon in the sale of the lot, who says everything was furnished by them on the credit of Adaline Smith, and that she paid them. Mrs. Smith’s testimony is further supported by the fact that the different payments were made at or shortly after the time of receiving money from pension, Bruner estate, &c. Messrs. Hamnett & Son produced evidence to the effect that Smith had worked on the house and paid some small sums of money and done some shoemaking in payment for work on the property, but this is satisfactorily explained by the evidence of Adaline Smith, who says she furnished him with the money to pay these amounts.</p> <p>“ On the facts as found, the auditor is clearly of the opinion that the whole fund should be awarded to Adaline Smith personally, as her position as guardian renders her liable to account in the Orphans’ Court for the moneys derived from the Bruner estate for her children, and that the exceptions to the sheriff’s return should be dismissed at the cost of the exceptants; and for the following reasons :</p> <p>“ 1. Where property is claimed by the wife, she must prove not only that she had the means of paying for it, but that she actually did pay for it. The evidence in this case shows conclusively that Adaline Smith did pay for this property and that Smith was insolvent and had no means of paying.</p> <p>“ 2. There is no evidence of any collusion between Smith and his wife to defraud the former’s creditors; on the contrary, Adaline Smith swears she was not aware of the debts to Hamnett & Son ; and again the account of Hamnett & Son was not for improvement of the property, but for leather, and it was certainly not purchased on the credit of this property, because at the date of their judgment they had constructive notice of the title, by the deed on record to Mrs. Smith. Seeing no reason why the sheriff’s return should not be confirmed, the auditor reports distribution as therein made, and that the exceptants pay the costs of this audit.”</p> <p>Exceptions were filed to this report, and upon hearing it was referred again to Mr. Austin.</p> <p>The auditor again reported: * * * “It was agreed by all parties interested that the testimony upon which the first report was based, should be considered in making up this report. After careful i’evision of that testimony, the auditor can see no reason why any change should be made in the finding of the facts, taken from first testimony. In addition to the facts found in first report, the auditor reports the facts as taken from evidence in this reference, as follows:—</p> <p>“ John O. Smith, one of the defendants, married Martha Boyd, in Washington county, Pa., about 24 years ago, and had by her four daughters. Ten years ago he sent his wife to her father’s, in Washington county, from Steubenville, Ohio, where they then resided, came himself to Pittsburg, and in 1863 married Adaline Bruner, the other defendant, his first wife then and now living. Adaline Smith (or Bruner) did not know or suspect the existence of Smith’s wife, as he informed her before their marriage that his wife had been dead two years, and she only discovered the fact within a few weeks back and subsequently to the date at which this matter was referred to the auditor for the second time. * * * The auditor finds that the marriage with John O. Smith is void.</p> <p>“ A further fact is found bearing, however, only on a matter of costs, and not affecting the merits of the case. John O. Smith, on January 24th 1871, made an affidavit claiming the fund and chai’ging fraud against Adaline Smith and others, and that he had paid the sum of $600 towards building the house under an arrangement between himself and Adaline; she to purchase the lot and he would build the house. The purpose of offering this affidavit in evidence was to show that Hamnett & Son had a strong reason for making claim on this fund. Except as to the question of costs recommended in first audit to be paid by Hamnett & Son, there is no reason why the former distribution should be changed. There is from the testimony taken in second reference the additional reason why Adaline Smith (Bruner) should have the fund, that never having been the wife of John O. Smith, his creditors claiming through him have no standing whatever. Mr. Duff claimed also that the money used in the purchase of this lot and house was, by Adaline’s own showing, the property of her children, and that she, as guardian, embezzled it, and had therefore no property in it. Were this the case it would not benefit, Hamnett & Son, and if it were a question, the second marriage void, but a very small proportion (from Bruner estate) really belonged to Adaline as guardian, as she, and not the children, was entitled to the pension and bounty money, which would only be theirs in the event of a second marriage, and Adaline in receipting for it as guardian did so under under the mistaken impression that she was the wife of John O. Smith, and the $386 received from the Bruner estate, after eight years’ support of the three Bruner children, certainly would be exhausted. Now, as to costs. * * * In addition to the legal presumption that the fund is the property of the husband, Hamnet & Son had a very good and further reason for making their claim, namely the affidavit of Smith himself, and it being-conceded by all that John O. Smith is an exceedingly hard case, the supposition that the deed in his wife’s name was for the purpose of defrauding creditors is natural. This as to costs on the first audit.</p> <p>“ The case of this report is different. Hamnett & Son’s belief and assumptions of law were entirely overthrown in the first report, as they introduced no evidence throwing further light on the merits of the case in this reference, they ought injustice be made to pay the costs of this second reference.</p> <p>“ Distribution reported as follows:—</p> <p>Amount in court . ......$754.89</p> <p>Adaline Bruner, ..... $649.39</p> <p>Auditor’s fee and certificate first reference paid by J. G. Dicken, Esq., and now for his use, 100.50</p> <p>Joseph Boss, Prothonotary, copying first report 5.00</p> <p>-$754.89”</p> <p>Mrs. Smith filed exceptions to this report, viz., that the auditor should have charged all the costs of the audit to Hamnett & Son, and awarded the amount in court to her. Hamnett & Son filed exceptions that the auditor had not awarded to them the amount of their judgment, and that he had imposed any of the costs on them.</p> <p>After argument the court decreed that Hamnett & Son should pay all the costs of the audit ($133.50), and with this alteration confirmed the report of the auditor.</p> <p>Hamnett & Son appealed to the Supreme Court, and there assigned for error that the court did not decree the payment of .their judgment from the fund in court, and decreed that they should pay the costs.</p>

<p>1. Ross sued Hunter, judgment was rendered for Hunter; this was reversed ; attachment executions were issued on judgments against Rosg, and judgment recovered against Hunter as garnishee. He did not plead the attachments to the suit: as the case was about to be again tried, negotiations for settlement were had and Hunter agreed to confess judgment for $280. Held, that this sum was not subject to the attachments.</p> <p>2. Hunter obtained a rule to have the judgment entered subject to the attachments, the rule was discharged. Held, to be a decision that the judgment was exclusive of the attachments.</p> <p>3. The presumption was that the settlement was with understanding that the confession was exclusive of the attachments.</p>

<p>Error to the Court of Common Pleas of Allegheny county: No. 96, to October and November Term 1872.</p> <p>This was an action of debt by D. C. King against James Black-more, brought to December Term 1871.</p> <p>The affidavit of claim was for $150, one quarter’s rent, due on the 1st of October 1871, by William Lynn, under a lease between the plaintiff and Lynn, dated January 31st 1871, the defendant having become bound as bail absolute to pay the rent and perform the covenants stipulated for in case of Lynn’s default, and averring that Lynn had not paid the rent.</p> <p>The lease, which was filed with the affidavit of claim, was for renting a dwelling-house, &c., to Lynn for a year from April 1st 1871, for a rent of $600, payable in quarterly payments of $150 each, on the 1st days of July, October, January and April following, with some other stipulations. The defendant became bound for the performance by Lynn of the covenants in the lease by the following instrument:—</p> <p>“For a valuable consideration, as well as in consideration of the letting of the above-described premises unto the said party of the second part, I hereby become security, as bail absolute, for the payment of the rent, and performance of the covenants, in the foregoing agreement mentioned, by the said party of the second part to be paid, kept, done and performed. And in the event any default shall be made therein, I hereby covenant and agree to pay unto the said party of the first part such sum or sums of money as will be sufficient to make up any deficiency, and fully satisfy the conditions of the said agreement, without requiring any notice of nonpayment or proof of demand being made.”</p> <p>The affidavit of defence, amongst other things, averred that the plaintiff issued a landlord’s warrant and distrained the goods and chattels of Lynn to compel the payment of the rent mentioned in the affidavit of claim; that Lynn replevied the goods; that the replevin remains undetermined, and averred that the plaintiff could not have two actions pending and undetermined for the same debt. There were allegations also of the non-performance by the plaintiff of his covenants in the lease.</p> <p>On the trial, May 21st 1872, before Sterrett, P. J., the plaintiff having given in evidence the lease of Lynn, and the defendant’s covenant of suretyship rested.</p> <p>The defendant then gave in evidence, under objection and exception, the record of an action of replevin, Lynn v. King (the plaintiff here), brought October 31st 1871, in the District Court of Allegheny county, No. 623, to November Term 1871, being for goods distrained for the rent for which this suit is brought. The goods were delivered by the sheriff to Lynn, he having given a replevin bond.</p> <p>The court charged:—</p> <p>“ The defendants claim that the proceedings in replevin pending in the District Court of this county are a bar to the plaintiff’s recovery in this case; and in this position he appears to be sustained by the authority cited. Inasmuch, however, as we have a similar question to be considered by the court in banc, we instruct you in this case pro forma that said proceedings are not a bar to the recovery of the plaintiff in this case, and that your verdict should — under the evidence before you — be in favor of the plaintiff for the amount of the three months’ rent claim with interest. Your verdict will be taken subject to the opinion of the court in banc on tbe question of law reserved, viz.: Whether the distress and proceedings in replevin in No. 623, of November Term 1871, in the District Court are a bar to the plaintiff’s action ? and if the court shall be of the opinion that the law is with the plaintiff, then judgment to be entered in his favor is the verdict; but if the court shall be of a contrary opinion, then judgment to be entered in favor of defendant, non obstante veredicto.”</p> <p>The verdict was for the plaintiff for $155.77.</p> <p>The court afterwards entered judgment for the defendant non obstante veredicto.</p> <p>The plaintiff removed the record to the Supreme Court by writ of error, and assigned for error entering judgment for the defendant.</p>

<p>1. Decrees for specific execution are not of right, but are within the discretion of the chanoellor.</p> <p>2. When the equity of the plaintiff is not clear or the case unconscionable or inequitable, specific execution will be refused and the plaintiff left to his action at law.</p> <p>3. Weise in writing authorized Lyon to sell land, a sale to be binding on Weise if made according to conditions named ; if, through Lyon’s agency, “a purchaser is sent to or induced to negotiate with me and we consummate a sale,” Lyons was to be entitled to commissions as if he had conducted the negotiations. “If taken out before sold within four months, I will pay--dollars for advertising.” Held, that the purchaser from Lyons was, by the terms of the paper, put on his inquiry from the principal whether the authority had been revoked.</p>

<p>Error to the Court of Common Pleas of Allegheny county: No, 94, to October and November Term 1872.</p> <p>This was a scire facias on a mechanic’s lien issued December 12th 1871, by Benjamin Schmidt and others, trading as Schmidt & Co., against Sarah A. Armstrong owner, and John D. Groves contractor. The claim was filed April 10th 1871, against a frame dwelling-house, situate, &c., and was for $166.06. After describing the lot the claim proceeded:—</p> <p>“ The said Sarah Ann Armstrong’s interest in said lot of ground, being that of tenant or lessee for a term of years,” &e.</p> <p>There was no dispute as to the correctness of the claim, or that the building was a dwelling-house.</p> <p>Judgment by default for $179.30 was taken against the defendant for want of an appearance and affidavit of defence. On-the 27th of January 1872, a levari facias was issued, and February 8th a rule was granted on the defendant to show cause why the judgment should not be- opened, and the defendant let into a defence. The rule was made absolute February 27th.</p> <p>A case stated comprising the foregoing facts was filed, and it was agreed:—</p> <p>“ If the court should be of opinion, as a matter of law, that under all the facts, the plaintiffs are entitled to recover in the aforesaid scire facias on the mechanic’s lien aforesaid, or, that having taken judgment by default against the defendants, they were entitled to have execution of the same, the judgment is to be entered now for the plaintiffs; but if the court should think otherwise, then judgment is to be entered for the defendants.”</p> <p>The court (Stowe, J.) entered judgment for defendants.</p> <p>The plaintiffs removed the record to the Supreme Court by writ of error, and assigned for error:—</p> <p>1. Entering judgment for defendants.</p> <p>2. Letting defendants into a defence, and staying the execution after judgment against them by default.</p>

92, to October and November Term 1872. This was an action of assumpsit, brought July 8th 1869, by Joseph C. Cubbison, to the use of Robert Patterson, against William McCowin, Thompson McCowin, Hugh Gailey and others, trading as “ The Farmers’ Union.” The jury in the case were sworn as to the McCowins and Gailey.

<p>Error to the Court of Common Pleas of Beaver county: Of October and November Term 1872, No. 111.</p> <p>The executors, &c., of Mary Murray, deceased, on the 28th of May 1871, brought an action of debt against Joseph Sharp. The plaintiffs entered a rule of reference, and the cause was arbitrated under the Compulsory Arbitration Law. On the 24th of August 1871, the arbitrators made an award for the defendant. On the same day the plaintiffs filed an affidavit, and entered an appeal without paying the costs or entering into recognisance, &c. On the 19th of September the plaintiffs ruled the defendant to plead. November 6th the defendant pleaded. November the 13th, the defendant moved the court to quash the appeal for want of the payment of costs. On the 19th of Maroh 1872, the court (Acheson, P. J.) quashed the appeal on the ground that the plaintiffs had not entered into recognisance nor paid the costs, &c.</p> <p>The plaintiffs took out a writ of error, and assigned for error the order quashing the appeal.</p>

<p>Error to the Court of Common Pleas of Fayette county : No. 183, to October and November Term 1872.</p> <p>An action of ejectment was brought May 10th 1869, Thomas Brooks and others against Austin W. King and Henry King.</p> <p>On the 14th of March 1872, the cause was tried and a verdict rendered for the defendants. On the 16th of March reasons for a new trial were filed and a rule granted on the defendants to show cause why a new trial should not be granted. On the same day the court adjourned to meet April 4th 1872. The court met on the day of adjournment, and after argument, the rule for a new trial was discharged. The court then adjourned to meet April 11th, and having met on the same day “rose.” This was the end of March Term.</p> <p>On the 3d of June 1872, the verdict fee was paid and judgment was entered on the verdict. On the same day, being the commencement of the June Term, the court met and the records show this entry in this case:—</p> <p>“And now, June 3d 1872, the.order of the court made April 4th 1872, discharging the rule to show cause why a new trial should not be granted, is vacated and said rule to show cause reinstated and judgment vacated as of this date. Court adjourned to meet June 24th.” There is then this entry: “On motion for a new trial. And now, to wit, June 24th 1872, rule made absolute; new trial granted.”</p> <p>The defendants removed the record to the Supreme Court and assigned for error, the orders of the court of June 3d and 24th 1872.</p>

<p>1. Land conveyed to a wife was sold under a mortgage by herself and husband, in a contest between creditors of the husband in the distribution of the proceeds, alleging that the property was his, the wife was a competent witness for the creditors.</p> <p>2. A mortgage of the land by both recited that it had been conveyed to the wife; the mortgage, being defectively acknowledged, did not bind the wife. Held, that the recital did not estop the mortgagee, as against a subsequent mortgage of both, from alleging that the land was the husband’s.</p> <p>3. Evidence in this case establishing that the land was the husband’s.</p>

<p>1. The equities of surety exist after the liability of both himself and principal is fixed; both before and after judgment.</p> <p>2. In Pennsylvania, a judgment against principal and surety does not extinguish the relation between them.</p> <p>3. If creditors after judgment give time to the principal, the surety is discharged.</p> <p>4. After liability on an executory contract, an agreement between the principal and the creditor to submit to arbitration will not discharge the surety.</p> <p>5. Sureties became bound for a builder for the erection of a building against a certain time : the work in its progress not being well done, the owner and the builder submitted their differences to arbitrators ; they awarded that the building should be taken down and rebuilt against a more distant time. Held, That the sureties were discharged.</p> <p>6. The surety will be discharged whenever he cannot secure himself by discharging the claim of the creditor and proceeding against the principal.</p>

<p>1. K. sold to L., oil, “ to be delivered seller’s option at any time till December 31st, at 13£ cents per gallon. L. assigned the contract to F., and afterwards entered into a combination with many others to buy up oil,” so as to raise the price in the market at the time K. was to deliver. Held, That F. was not affected by the acts of L., he having no connection with the combination.</p> <p>2. In equity the assignee of a chose in action is the true owner: he may set it off as his own.</p> <p>3. The assignee takes the chose subject to the equities between the original parties at the time of the assignment,, and to payment, &c., on the chose before notice of the assignment, but is not affected by acts unconnected with the subject of the contract.</p> <p>4. In the sale of chattels the general rule is, that the measure of damages for non-delivery, is the difference between the contract price and the price at the time and place of delivery.</p> <p>5. When the market price is unnaturally inflated by unlawful means, it is not the true means of ascertaining the measure of damages for non-delivery.</p> <p>6. The question of damages by a market value is for the jury: who may determine from the price before and after the day of delivery, and from other sources, the actual market value.</p>

<p>Error to the Court of Common Pleas of Allegheny county: No. 87, to October and November Term 1872.</p> <p>This was an action of assumpsit, brought August 30th 1870, by . the Citizens’ Oil Refining Company, to the use of Frederick Fisher and others, trading as Fisher Brothers, against William J. Kountz.</p> <p>The plaintiffs’ affidavit of claim set out as follows, viz : — That the defendant, by acceptance of the same, entered into the following contracts:—</p> <p>“ Pittsburg, June 7th 1869.</p> <p>“ Sold to Citizens’ Oil Refining Company, for account of W. J. Kountz, one thousand barrels of good, green merchantable crude petroleum, forty gallons to the barrel, gravity to be from forty to forty-six degrees at a temperature of 60° Fahrenheit. To be delivered seller’s option, during the present year 1869, in bulk boats or cars as sellers may elect, at the Citizens’ Oil Works, or at any other oil works near Pittsburg, that buyers may direct. Payment to be made cash on delivery, at the rate thirteen and one-half cents per gallon.</p> <p>Waring & King,</p> <p>Brokers.”</p> <p>“ Pittsburg, June 17th 1869.</p> <p>“ Sold to the Citizens’ Oil & Refining Company, for account of W. J. Kountz, Esq., one thousand barrels, good, green merchantable crude petroleum, forty gallons to the barrel, gravity forty to forty-six degrees, at a temperature of 60° Fahrenheit, to be delivered at seller’s option, at any time from the first day of August to the thirty-first day of December, (both days inclusive) 1869, in bulk cars, or bulk boats at or near Pittsburg. If delivered by Allegheny Valley or Western Pennsylvania Railroads, the buyer may designate any other point of delivery on line of said roads; if delivered by water, then at any good landing in or near Pittsburg buyer may direct. Payment to be cash on delivery at the rate' of fourteen cents per gallon, on lots as gauged and delivered.</p> <p>Richard T. Leech.”</p> <p>“ On the 31st day of December 1869, the said defendant was notified that the vendee of said oil was ready and willing to receive and pay for the same, and demand was made of the defendant that he deliver the same according to the terms of said contracts respectively ; but the defendant, on the day and year last aforesaid, refused to deliver the oil, although the vendee was ready and willing to receive and pay for the same according to the provisions of said contracts respectively.</p> <p>“ On the 31st day of December 1869, the market price of oil of the quality specified in said recited contracts, and at the places of delivery therein mentioned, was 18 cents per gallon, and the vendee sustained damage to the amount of $3400.</p> <p>(Signed) Frederick Fisher.”</p> <p>On the 14th of September 1870, judgment was entered against the defendants by default for $3544.50. The judgment after-wards was opened, and the defendant let into a defence on the condition that he should, within five days, file “ a full and specific affidavit of defence, which shall be subject to the same rules of court as if the same had been filed before judgment entered.” Under this condition the defendant filed an affidavit of defence, viz.:—</p> <p>“ That the said equitable plaintiffs, Fisher Brothers, between the 7th of June 1869, and the 31st of December 1869, with others, entered into a combination to purchase oil here in the county of Allegheny, as well as in the oil-producing districts of Pennsylvania and West Yirginia, and keep it out of the market, and thereby create a scarcity and consequently enhance the price, for the purpose of preventing this affiant (and others who had entered into like writings of the character of those on which this writ is brought) from fulfilling his engagements set forth in said writings, so that great gains and profits might be realized, by recovering the difference between the price promised in said writings and the advanced price brought on as aforesaid ; and in furtherance of said illegal object, the said plaintiffs (with others, their confederates) used their influence and efforts to prevent oil from being brought to the city of Pittsburg from the oil-producing districts for the purpose aforesaid; and further, the said plaintiffs, with their confederates, for the purpose of preventing this affiant (and others who had entered into like writings with the one sued on) from fulfilling his said engagements, and other engagements of a similar character, and from having oil shipped on the Allegheny Yalley Railroad to the city of Pittsburg, from the oil-producing districts of Pennsylvania, monopolized the freight cars of said road (the river, most of the time, being too low to allow shipments by water), and rendered it impossible for this affiant to fulfil his engagements, as well as others of a like kind— and by said illegal proceedings, actions and doings of the said plaintiffs (and others, their confederates), they, the said plaintiffs, did succeed in raising the price of oil between the aforesaid two dates from 13J cents to 18 cents per gallon, thereby to a great extent contributing to prevent this affiant from being ready and prepared to deliver the 2000 barrels mentioned in said writings, between the dates aforesaid; and this affiant would further state (and is prepared to prove), that the fair market price of oil (such as is described in said contracts) on the 31st of December 1869, was considerably less than 18 cents per gallon. This affiant expects to be able to prove all the above facts on the trial of this case; and this affiant would further aver, and expects to be able to prove, that he would have fulfilled his said engagements had it not been for the doings and actions of said plaintiffs (and others, their confederates) above set forth; and he would further state, that as soon as the market was relieved from the above combination, to wit, within a few days after the 31st of December 1869, he procured and tendered oil, of the character described in said contracts, in fulfilment of the aforesaid contract sued on. And he would further state that the above combination was entered into for the purpose of preventing him from fulfilling his said contracts by the said plaintiffs and their confederates. * * *</p> <p>W. J. Kountz.”</p> <p>On the trial, April 26th 1872, before Sterrett,' P. J., the defendant made the following offers of evidence, which were rejected, and several bills of exceptions sealed:—</p> <p>“ 1. To show by Henry M. Long, the witness on the stand, that in the latter part of the year 1869, and particularly on the 31st of December 1869, a combination existed, to which the principal dealers in oil in the county of Allegheny were parties, to withhold all the oil in their control from the market, and to create an artificial scarcity and a fictitious price of oil, with a view of compelling the defendant, and all others holding similar contracts, to pay an extravagant price for the same, or be liable for damages on their contracts, in excess of the natural and fair price of oil, if such combination had not existed. The purpose of this offer is to show that the price of oil on the 31st day of December 1869, asserted by plaintiffs in their affidavit of claim,upon which they have liquidated their judgment, was not the fair and natural price, and that hence the judgment should be abated to such amount as the jury may find under the evidence would be the difference between the contract price and the fair and natural market price.</p> <p>“2. The market price of oil on the 31st of December 1869, Was not 18 cents per gallon, as alleged in the plaintiffs’ affidavit of claim, upon the basis of which the judgment was liquidated, but that the actual market price was 14f- cents per gallon. This to enable the jury properly to assess the damages to which, if any, the plaintiffs are entitled.</p> <p>“ 3. To show that Fisher Brothers, for whose use this suit is brought, being producers of oil, had prior to the maturity of the contracts in suit, bound themselves, by a contract with the Allegheny Valley Railroad Company, not to send oil to this market, except by the road of said company — this for the purpose of showing that said equitable plaintiffs were parties to an illegal combination to restrict the supply of oil to this market, and thus prevent defendant from filling his contracts, unless subject to the penalty of an artificial and fictitious price thus created.”</p> <p>There was no written charge of the court, other than the rejections of the offers of defendants.</p> <p>The verdict was for the plaintiffs for $3544.50, with interest from September 14th 1870.</p> <p>The defendant removed the record to the Supreme Court by writ of error. He assigned for error the rejection of his offers of evidence.</p>

<p>1. A guardian, by_ order of the Orphans’ Court, sold land of three female wards, in which their mother had dower; there was evidence of a family arrangement before sale that it should be bought for F., a married ward, at less than its value, and the mother would release her dower ; the land was sold to the husband, the deed made to him because the wife was a minor, and he promised to convey to her ; he gave a mortgage for the deferred payments; the wife, after coming of age, received her share of the mortgage from a purchaser of the husband’s title, under proceedings in bankruptcy. Held not to be sufficient to submit to the jury on the question of a resulting trust in the wife.</p> <p>2. Five months after the sale the husband conveyed to trustees for the separate use of the wife, and the deed was recorded. Held, sufficient to put purchasers under bankruptcy upon inquiry as to the title of the wife.</p> <p>3. The wife with her husband afterwards executed a release to the purchasers. If her title were good under the trust deed the release did not pass it.</p> <p>4. The wife having paid none of the purchase-money under the guardian’s sale, and there being no fraud, the husband’s promise being parol, a trust was not created under the Statute of Frauds.</p> <p>5. Nixon’s Appeal, 13 P. F. Smith 279; Seichrist’s Appeal, 16 P. F. Smith 237, distinguished.</p>

<p>Error to the District Court of Allegheny county: Of October and November Term 1872, No. 106.</p> <p>In 1865 W. H. Brown, by virtue of several warrants of attorney, caused three judgments to be entered in the District Court of Allegheny county, against Jenkins, Nish & Co., and Jenkins, Hill & Co., firms composed of the same members, except that Hill was in the latter firm only. Subsequently, in 1866, Alonzo Inskeep, I. C. Anderson, Eliphalet Downer and Joseph Kiddoo recovered judgments against the same defendants.</p> <p>Brown, to April Term 1868, issued executions on his judgments under which the real estate of the defendants was sold by the sheriff.</p> <p>The sheriff, under the Act of April 10th 1862, relating to the distribution of the proceeds of sheriffs’ sales of real estate in Allegheny county, made a special return of the liens appearing of record against the land sold, and a distribution of the fund in his hands. Before the return was confirmed, Downer, Inskeep, Kiddoo and Anderson presented' a petition to the District Court, setting forth that they believed, and expected to prove, that the defendants were not indebted to Brown in the amounts of the judgments to him, but that they had been confessed for a much larger sum than was due, for the purpose of hindering, delaying and defrauding the petitioners and other creditors of the defendants, and to prevent their property from being taken in execution for their debts.</p> <p>The prayer of the petition was that the court would award an issue to try the validity of Brown’s judgments.</p> <p>On the 15th of August 1868 an issue was awarded as prayed for, the petitioners to be plaintiff and Brown defendant.</p> <p>The issue was tried on the 7th of December 1870, when a verdict was rendered for the plaintiff; the court set aside the verdict, and ordered a new trial.</p> <p>The cause was again tried December 19th 1871, when the jury failed to agree, and were discharged by the court.</p> <p>On the 16th of March 1872 Brown presented a petition to the court, setting out the facts of granting the issue, the two trials, and their results. The petition further set out:—</p> <p>“ The said testimony was wholly insufficient to warrant a jury in finding any of the issues in favor of the plaintiffs; but, on the contrary, cannot fail to satisfy your honors, and doubtless did satisfy his honor who tried the issue, sitting as a chancellor, that your petitioner’s judgments, instead of being fraudulent or paid off, were taken in good faith for a bond fide debt, and that a balance of several thousand dollars was still due on them; and moreover, your petitioner avers that plaintiffs failed to prove a single fact which legitimately showed or tended to show that the judgments in controversy were fraudulent or had been paid. * * * Your petitioner is now threatened with another trial, which can only be had at great loss and expense of time and money to your petitioner, and also to the serious detriment of the public interests by the unnecessary consumption of the time of court and jury. Your petitioner is advised that in the matter of feigned issues to try the validity of judgments, your honors sit as chancellors, and that the legitimate purpose of their trial is to inform their consciences as such; and he therefore prays your honors, one of whom has already most patiently heard the whole testimony as given in the case, to review the same, and if satisfied that there was no testimony given which in your opinion would warrant a jury in finding the issue for the plaintiffs, that you will strike the said issue from the record, and direct the sheriff to proceed in the distribútion of the fund according to the liens of record-, and as if said issue had not been granted.”</p> <p>After argument, the court (Hampton, P. J.) delivered an opinion as follows: — ■</p> <p>“ * * * A careful examination'of the evidence on file cannot fail to satisfy any rational mind that there was no fraud whatever practised or intended by the defendant in obtaining or keeping alive his liens. The plaintiffs were not even creditors at the time these liens were obtained, nor for a long time afterwards. But if they had been, the evidence utterly fails to show that the defendant claims one dollar that he is not justly entitled to recover. Had the same evidence been before us at the time this issue was awarded that we now have, the issue would not have been granted. I only regret now that I did not give the jury my opinion on the evidence when charging them. I did, however, in this as in all other cases where I think the evidence is too clear to admit of any doubt. The facts were left to them, without any doubt as to their verdict.</p> <p>“ The granting of an issue like the present is a quasi proceeding in chancery, where the court, under the provisions of the act, may refuse an issue, unless the facts presented will justify it, and if the court may refuse the issue, I do not see why it may not set aside the same, after all the evidence is given, if, in the opinion of the court, such issue is not warranted. Why should the parties be put to the expense and trouble of another trial, when the court would be compelled to set aside the verdict if it should be against the overwhelming weight of evidence, as it would have been in this case, had it been in favor of the plaintiffs ?”</p> <p>The decree was: — ■</p> <p>“ The court make this rule absolute, and direct that the feigned issued, heretofore granted in this case, be stricken from the record and the sheriff proceed in the distribution of the fund according to the liens of record, and, as if said issue had not been granted, subject to a writ of error or appeal by the applicants in this case as provided by law.”</p> <p>The plaintiff removed the record to the Supreme Court and assigned the decree for error.</p>

<p>Appeal from the District Court of Allegheny county: In Equity: No. 107, of October and November Term 1872.</p> <p>This was a bill in equity filed, April 29th 1867, by Samuel McKelvy against Thomas S. Blair.</p> <p>The bill set out:—</p> <p>1. On January 1st 1853, the plaintiff, defendant and John C; Blair entered into partnership in the manufacture of steel, to continue seven years. By the articles of partnership each to be an “equal third partner;” the Blairs to attend to the business: J. C. Blair to take charge of the works, and the defendant “ to attend to the commercial and financial department,” the Blairs “to give their undivided time and attention to the business.” The plaintiff was not required to do so: the plaintiff put into the capital $31,615.20, defendant $7481.08 and J. C. Blair $19,548.14, in all $58,644.42 ; the defendant to pay plaintiff inte- . rest on $12,067.08, the excess paid in by plaintiff beyond his proper share; “ this makes all the shares equal;” each partner’s interest in the firm to remain unimpaired till the expiration of the term, with the exception that each might draw out $1200 during the first year; an account of stocks, debts, &c., to be taken on the 1st of July in each year, the dividend of the profits to be credited to the individual account of each partner, and each may draw out his dividend, &c.; if either partner should die his share to remain in the concern till the end of the term, and his representatives to be paid interest on its amount instead of one-third of the profits.</p> <p>2. On the 17th of May. 1854, the firm made a voluntary assignment for the benefit of creditors, and all the plaintiff’s real estate was sold to pay partnership debts.</p> <p>3. There had been no settlement between the plaintiff and defendant, the defendant having always refused to settle on the repeated demands of the plaintiff.</p> <p>4. The plaintiff had paid more than one-third of the partnership debts, and upon settlement there would be due to him from defendant $28,482, with interest from January 1st 1853.</p> <p>The prayer was for an account and payment of the balance found due by defendant.</p> <p>On the 12th of July 1867, the defendant pleaded the Statute of Limitations, to which the plaintiff filed a replication.</p> <p>On the 16th of February 1869, the plaintiff filed an amended bill. It set out:—</p> <p>1. The final proceedings under the voluntary assignment, showing the confirmation, July 16th 1858, of the assignee’s account and the report of the auditor on it.</p> <p>2. The defendant was, by the terms of the partnership contract, “ the financial agent and manager of the firm of McKelvy & Blairs, and as such acted and still does act up to the final settlement of the partnership accounts as the trustee of the remaining partners.”</p> <p>3. Defendant had received large sums of money “in such .capacity ” for which he had not accounted.</p> <p>The plaintiff had paid within three years a considerable sum of money in the “ partnership accounts, for which, as well as for various sums from time to time previously paid (the defendant) is equally liable,” and is bound to pay his share.</p> <p>5. The defendant, in the year 1854, admitted his indebtedness to the plaintiff in the sum of $20,000 and upwards, and a settlement would probably have been effected but for plaintiff’s absence as a soldier in the army.</p> <p>6. Before entering into the partnership the defendant borrowed from plaintiff $12,000, and agreed to pay it with' interest, as shown by the articles of partnership in the original bill.</p> <p>7. Defendant promised plaintiff that if he “would not enter suit ” he, defendant, would pay the unsettled balance if plaintiff would rely on defendant’s honor, &c.</p> <p>The prayers were for an account and payment of the balance due; that defendant should pay the $12,000 with interest from the time of borrowing; that defendant pay the interest on the $12,000 from that time.</p> <p>The defendant pleaded the Statute of Limitations to the amended bill, and also demurred to that part claiming the $12,000 borrowed money, because the plaintiff for that had a remedy at law.</p> <p>The plaintiff joined in the demurrer, and demurred to the defendant’s plea.</p> <p>The court sustained the defendant’s demurrer to the plaintiff’s bill, and overruled the plaintiff’s demurrer to the defendant’s plea, and decreed that the bill be dismissed with costs, &c.</p> <p>The plaintiff appealed to the Supreme Court, and assigned the decree of the court for error.</p>

<p>Appeal from the Orphans’ Court of Allegheny county: No. 148, to October and November Term 1872.</p> <p>The proceedings in this case arose upon the distribution of the estate of William McClure, deceased, who died in 1848, having made his will, dated July 6th 1844, as follows:—</p> <p>“ First. I will that all my just debts and funeral [expenses] shall be fully satisfied out of my personal estate. I will and bequeath to be paid to my wife, Jane, all my household and kitchen furniture, and the one-half of all my other personal property, and the whole of my real estate during her life, if she remain my widow. But if she marry again, she is to have but the one-half of my real estate during her life.</p> <p>“ I will and bequeath to my brother Alexander, one thousand dollars, and my sister, Elizabeth Carothers, three hundred dollars, out of my personal estate, if there should be enough not devised to pay them ; if not, each to get their proportion of what is. If there should be any over paying them, it is to be divided equally among all my nephews and nieces. At my wife’s decease, my real estate to be sold and equally divided amongst my nephews and nieces, namely, my brother Alexander’s, Francis, Alexander, Samuel, James, Sarah, Martha and Andrew; my sister Margaret Kelly’s children, John Boyd, Martha, Margaret, Richard and William; my sister Elizabeth Carothers’ son John, each to have an equal share.</p> <p>“ The above-named Samuel, son of my brother Alexander, I will that his share be put into the hands of his brothers Francis and Alexander, whom I appoint guardians for him, and allow them to put his share out on interest for him, the interest only to be applied to his use, and not the principal. At his death the principal to be equally divided amongst his brothers and sisters or their heirs.” * * *</p> <p>He appointed John Pollock and Hezekiah D. Gamble executors.</p> <p>Sarah McClure, one of the children of the testator’s brother Alexander, married James Pearce, and died in February 1858, intestate and without issue, but leaving her husband to survive her.</p> <p>The testator’s widow did not marry again; she died in January 1868.</p> <p>The testator’s real estate was sold in October 1870, under the directions in the will. John Pollock* the surviving executor, settled his account, which was confirmed nisi, January 14th 1871. John M. Kennedy, Esq., was appointed auditor to distribute the balance in the hands of the executor.</p> <p>James Pearce, the surviving husband of Sarah, a daughter of Alexander McClure, claimed her share, alleging that the order to sell the real estate was a conversion; that the legacies to Alexander’s children were vested, and that therefore he was entitled, as surviving husband, to receive her share. The other nephews and nieces alleged that there was no conversion; that the legacies did not vest till the death of the widow of the testator, and that therefore the legacy of Sarah would go to those of the nephews and nieces living at the death of the widow. The auditor reported that the direction of the will to sell the real estate was a conversion, and that the legacies to the nephews and nieces of the testa- ; tor vested on his death ; he, therefore, awarded Sarah’s share to n! James Pearce, her surviving husband.</p> <p>The nephews and nieces excepted to the report of the auditor. The Orphans’ Court overruled the exceptions, and confirmed the report.</p> <p>Alexander McClure and others, nephews and nieces of the testator, appealed to the Supreme Court, and assigned the decree of confirmation for error.</p>

<p>Appeal from the Orphans’ Court of Beaver county: No. 230, to October and November Term 1871.</p> <p>In the matter of the distribution of the balance in the hands of George S. Barker, executor and trustee, under the will of Thomas A. Barker, deceased.</p> <p>The following facts were submitted in a case stated to the Orphans’ Court:—</p> <p>T. A. Barker, the testator, died February 15th 1859, seised of real estate in Pennsylvania, and also' in Iowa, and owning a considerable amount of personal estate.</p> <p>He left a will, dated February 7th 1859, by which he gave to his wife Eliza all his household and kitchen furniture, and further • directed1 as follows: — ■</p> <p>“ Item. Out of my real estate, hereinafter devised in trust to my executor, or out of the proceeds of any sale thereof, I direct my executor, as trustee, to furnish or procure a suitable dwelling-house and appurtenances for the occupancy and comfort of my wife Eliza and family; and, also, to pay to my said wife the sum of three hundred dollar’s annually, out of the rents and profits or proceeds of sale of real estate, for her proper maintenance; and, also, the further sum of three hundred dollars annually from the personal estate, for the maintenance of my minor children, Frank, Harry and Helen (making the aggregate amount of six hundred dollars)', in equal quarterly instalments, and such other reasonable sum neeessary for the support or education of my said children, the said sums payable during the period of minority of my eldest son, Frank, and until he shall attain the age of twenty-one years, and in case of his death before attaining the age of majority, then until the period when my second son shall have attained the age of twenty-one years, and in case of the death of both of my sons before either of them is of age, then until the time when my daughter shall attain the age of twenty-one years, and the provisions declared being also limited to a period so long only as my said wife shall be and remain my widow, with the further condition, that in case my said wife shall again marry, then the said dwelling-house and appurtenances, and the said sum of six hundred dollars so provided, I direct to become thereafter portions of my general estate, and my wife and several children then to receive their portions; as hereinafter directed, in lieu thereof.</p> <p>“ Item. I give, devise and bequeath all my real and personal estate, of whatever kind or nature, or wherever situated, not already herein before bequeathed, to George S. Barker, of the borough of New Brighton, my brother, whom I do hereby appoint my sole executor of this my last will and testament, as well as my trustee, subject to-the directions and bequests hereinbefore made, and upon the following trusts:—</p> <p>“ That as my said executor and trustee, he is hereby empowered in the management of my real and personal estate, in his discretion to sell at any time, all or any part of my real estate, as he may deem wise and advantageous, and the proceeds thereof to use, convert or invest, for the accumulation of the trust funds.”</p> <p>(All of his personal property he directed to be converted into money and paid in equal portions to his children on their attaining the age of twenty-one years; and in case of the death of either or any of them, to the survivor of them.)</p> <p>“ I accordingly further direct that whenever either or any of my said children shall arrive at the age of twenty-one years, as herein-before provided, or whenever my said wife Eliza shall at any time prior thereto marry, all my estate, real and personal, in such case, shall thereupon be sold by my said executor for money, or converted into money, and with other money or accumulations of money, all collections or proceeds derived from the conversion or sale of bonds, mortgages, of leases, of real estate, or of notes, or other evidences of claims, shall become a like final distribution fund, as' hereinbefore set forth, and that of the remaining proceeds and accumulations of the real estate devised to my said executorin trust, sold and to be sold, the one-third portion thereof shall be paid absolutely by my said executor to my said wife Eliza in lieu of the previous specific provisions for her maintenance, and that the two-thirds portion, or residue, shall be added to and form part of the aggregate special fund of distribution to my children as already provided, according to the. terms, conditions, contingencies as to age, death and survivorship, as is therein fixed and specified ; provided, nevertheless, that in case the said one-third portion of the proceeds and profits and accumulations of sales of my said real estate shall not have amounted to the sum of four thousand dollars, then my executor is directed to apportion any deficiency by abatement from the residue or respective shares of my said children which they would otherwise be entitled to receive and enjoy, so that my wife’s share shall be absolutely not less than four thousand dollars, as her provision and distributive portion out of real estate sold.”</p> <p>The widow of Thomas A. Barker died unmarried, but by her will, dated the 7th of March, 1862, she bequeathed to her sister Caroline O. Morían, one thousand dollars, and to her sister Susan A. Wade, the interest of one-half of the residue of her estate, to be paid to her annually, and various other legacies to other persons, and died March 27th 1862, before the arrival of the said Frank Barker at the age of twenty-one years; he has since attained the age of twenty-one years.</p> <p>George S. Barker, executor and trustee, converted the estate of said decedent as directed by the will of February 7th 1859, and filed in the Orphans’ his account showing a balance of $18,975.17 personal, and $15,508.30 proceeds of real estate.</p> <p>The widow lived and died in the homestead provided by the executor and trustee, and was paid the annual allowance to the period of her death accepted under provisions of will.</p> <p>The question submitted for the decision of the court is whether under the will of Thomas A. Barker, Eliza O. Barker his widow at her death possessed any vested devisable interest in the four thousand dollars, or one-third of the proceeds of real estate therein mentioned, that passed or could pass to her executors, or her legatees and devisees named in the provisions of her will.</p> <p>The Orphans’ Court “ being of opinion that the bequest to Eliza O. Barker, in the will of Thomas A. Barker deceased, is a vested legacy, it is ordered and decreed that George S. Barker, executor and trustee aforesaid, do pay to John W. Wilson, executor of the last will and testament of Eliza O. Barker deceased, the sum of four thousand dollars, together with lawful interest thereon, to be computed from the 1st day of September 1870.”</p> <p>Frank Barker and others, heirs at law, &c., of Thomas A. Barker, appealed to the Supreme Court, and assigned the decree of the Orphans’ Court for error.</p>

188, to October and November Term 1871. This was an action of replevin brought December 6th 1869, by John Dinsmore against William Barker, Jr., and Jesse B. Kilgore, trading as William Barker, Jr., & Co., for 45 sacks of wool, containing 7632J pounds, of the value $3816.25. The defendants gave a claim-property bond and retained the goods.

<p>1. L. made deeds to several children and gave them to M. to he recorded after his death and handed to the grantees. Held, the delivery by relation took effect when they were given to M.</p> <p>2. Ño declarations of L. after the delivery to M., except such as would countermand the delivery to the grantees, would be evidence.</p> <p>3. When the future delivery is dependent upon a condition the deed is an escrow; when to await the lapse of time or a contingency, it is the grantor’s deed presently, but will not take effect till the second delivery, but then by relation to the first.</p> <p>4. An escrow operates only from the performance of the condition and actual delivery to the grantee, except where a relation to the first delivery is necessary to give effect to the deed or intermediate conveyance of the grantee.</p> <p>5. Huss v. Morris, 13 P. F. Smith 367, adopted.</p>

<p>Error to the District Court of Allegheny county: No. 98, to October and November Term 1872.</p> <p>This was an action of assumpsit, brought April 9th 1868, by Samuel Duff against Samuel Wilson, who was surety for the performance by Philip Smathers, of the covenants of a lease to him from the plaintiff.</p> <p>The cause had been before tried and resulted in a verdict and judgment for the plaintiff; the judgment was reversed in the Supreme Court (Wilson v. Duff, 19 P. E. Smith 316.)</p> <p>The declaration set out the lease under seal, dated September 10th 1859, for five years, for the undivided half of certain adjoining tracts of land, containing in the whole 600 acres, Smathers himself being the owner of the other half, with privilege to cut timber, &c.; Smathers to deliver five pairs of flat-boats (one pair to be delivered after the first freshet after April 1st 1863, and another after the first freshet after April 1st 1864), for each of which plaintiff should pay him $100. The lease contained other stipulations as to taxes, &c.</p> <p>The contract of suretyship, also set out in the declaration, was as follows:—</p> <p>“ September 10th 1859. I hereby become bound to Samuel Duff for the faithful performance of the covenants and agreements contained in the foregoing agreement on the part of Philip Smathers, in case he shall fail to perform the same.</p> <p>“ Samuel Wilson.”</p> <p>The declaration then averred the failure by Smathers to deliver the boats of 1863 and 1864, and to perform his covenants in several particulars, and the consequent liability of the defendant as his surety.</p> <p>One of the tracts of land had been conveyed by Matilda Kifer to Smathers and Mary B. Lyon; to secure part of the purchase-money Smathers and Mrs. Lyon,'on the 20th of March 1857, gave to Mrs. Kifer a mortgage on the tract conveyed by her. Mrs. Lyon conveyed her interest to Smathers: he afterwards conveyed an undivided half to the plaintiff, after which the lease set out in the declaration was made.</p> <p>The whole 600 acres was known as the “ Platt saw-mill property it comprised the Kifer tract and two others, known as the “ Bingham tracts.” On the 29th of November 1862 the Kifer tract was sold by the sheriff under the Kifer mortgage, and the purchaser, -Joseph Henderson, obtained possession under an habere facias.</p> <p>The defendant asserting that this was an eviction of part of the demised premises, held that Smathers was discharged from the payment of any of the rent, and that therefore the defendant as surety was not liable.</p> <p>The plaintiff alleged that, in the “ spring of 1861, himself, the defendant and David Gilmore were tenants in common of the “Platt saw-mill property,” and that the defendant, whilst such tenant in common, procured an assignment of the Kifer mortgage to himself, caused it to be foreclosed, and the property sold; that Henderson, the purchaser, bought the Kifer tract for the defendant, who thus became the actual owner.</p> <p>The cause was tried, May 27th 1872, before Kirkpatrick, J.</p> <p>The plaintiff gave in evidence the lease and defendant’s contract as surety; also, that Smathers had failed to deliver the boats in 1863 and 1864.</p> <p>The defendant gave evidence tracing the title of the Kifer tract to Mrs. Lyon and Smathers, and their mortgage to Mrs. Kifer; scire facias sur mortgage, August 18th 1862, Kifer “ for use of Samuel Wilson, now for the use of Joseph Henderson, against Philip Smathers and Mary B. Lyon,” and sale by sheriff, November 29th 1862, to Joseph Henderson for $50, and possession delivered to Henderson, January 31st 1863, under an habere facias.</p> <p>He gave evidence also for the purpose of showing the performance by Smathers of his covenants.</p> <p>The plaintiff in rebuttal gave in evidence an article of agreement, dated August 25th 1859, between the defendant, of the first part, and Smathers, of the other part, by which Smathers agreed to sell to defendant the Platt saw-mill property for $1800, with this stipulation:—</p> <p>“ And it is now understood and agreed that the said Samuel is to let the said Philip Smathers redeem, repossess and hold in his own right, all the within-named property, on the 25th of August 1861, on him (the said Smathers) paying the within debts.”</p> <p>The plaintiff gave further evidence, that in May 1861 Gilmore, ■ who was then an owner of the land (Wilson claiming to own Smathers’s share), and the plaintiff agreed “ to protect the Kifer mortgage.”</p> <p>After consultation it was understood that Mrs. Kifer would take in payment land known as the Hetherington land. The plaintiff made a contract with Mrs. Kifer to get the land for her, and she to assign the mortgage jointly to plaintiff, defendant and Gilmore. The plaintiff made an arrangement with the agent of the owner of the land, that he would make a contract for it with the three; the agent having left for the army had placed his business with a Mr. Craig, who afterwards prepared an article and so informed plaintiff. After some time the defendant made the contract for the land in his own name, without the knowledge of plaintiff, and took an assignment of the mortgage.</p> <p>There was evidence that the defendant went to Mr. Craig, who sold him the land, defendant having informed Mr. Craig that it would be satisfactory. The land was afterwards sold by the defendant to Mrs. Kifer, for her mortgage.</p> <p>Gilmore testified in the same manner as to the agreement for the purchase of the land, and conveyance of it to Mrs. Kifer for her mortgage.</p> <p>The plaintiff gave other evidence of the same character.</p> <p>He then gave in evidence the deposition of Joseph Henderson, viz.:—</p> <p>“I am a brother-in-law of Mr. Wilson, the defendant. I merely know the property in Clarion county called the Platt sawmill property by reputation. Never saw it in my life that I remember of. I was at one time an owner of a mortgage on that property. I received a letter from Mr. Wilson, the defendant, stating that he had assigned to me the mortgage on this property. Don’t recollect the amount or the party by whom it was given. I knew nothing of it until after the assignment was made until I got notice by letter already spoken of. I did not pay anything to Mr. Wilson for this mortgage. I did take proceedings on this mortgage. I wrote to Mr. Lathy, of Clarion, to collect the mortgage and if it was not paid to bid it up to the amount of the mortgage for me. It was sold, and I got a sheriff’s deed for the property. I don’t recollect the amount of the bid, but it was a trifle, and I paid nothing but the costs when I got the deed. I can hardly say that the costs were paid with my money, for I paid a portion of the costs with Mr. Wilson’s money which I had at the time. There was an account between us. I took further proceedings, for I instructed Mr. Howe to go on to the property and repair it and take charge of the mill, and keep an account with the mill. I never settled or had any reckoning with Mr. Howe. I deeded my interest in the property to Samuel Wilson. There may have been consideration mentioned in this deed, but there was no money passed between us. When I took this mortgage I paid no money, and when I made the deed to Wilson I received no money. I did not claim any interest in this land or any ownership over it further than I have already stated in my deposition. I think afterwards Mr. Wilson told me the land was sold and the deed was made, and that I had better lift it. Mr. Wilson wrote to me to the effect that the property was good property and would be a good thing for myself and my boys. I acquiesced in the assignment and his views, and proceeded to take action under them, although I did not fully understand it. We had accounts existing between us running for a number of years, and no settlement had been made. The amount of costs paid by me when lifting the deed was about twenty-two dollars. I directed Mr. Howe to take possession of the mill and keep account of the lumber sawed, &c. I gave Mr. Lathy instructions to take all measures necessary to give me possession. There never has been any settlement of accounts between Mr. Howe and myself. Never received any rents or profits from him or never released him. Never received any rents from Mr. Wilson. When I conveyed to Mr. Wilson, I merely conveyed the property and not the rents or profits. There never has been any settlement between Mr. Wilson and myself in reference to these matters.”</p> <p>The defendant gave evidence in answer to the plaintiff’s case.</p> <p>The plaintiff requested the court to charge:—</p> <p>1. That if the jury believe that in the spring of 1861, the plaintiff and the defendant were jointly interested in the Platt saw-mill property, either as legal or equitable owners, or as lien creditors; that they and David Gilmore, another party interested in said property, agreed to purchase the Kifer mortgage for their mutual protection; that in pursuance of said agreement plaintiff and Gilmore, on behalf of all, made an agreement with Mrs. Kifer for the purchase of said mortgage, to be paid for with the Hetherington land; that plaintiff made a bargain with the agent for the land with which to purchase the mortgage; that defendant afterwards, without the knowledge or consent of plaintiff, closed the contract with the agent and with Mrs. Kifer, in his own name, and took an assignment of the mortgage in his own name, and then assigned the mortgage to Joseph Henderson, without consideration, and caused it to be foreclosed and the property sold in the name of Joseph Henderson — plaintiff not being made a party to the proceedings — for the purpose of acquiring the title to himself and defrauding plaintiff and Gilmore, the defendant cannot set up the title thus acquired under said mortgage in bar of the rent sued for, and plaintiff is entitled to recover.</p> <p>2. If the jury believe that plaintiff and defendant and Gilmore were tenants in common of the Platt saw-mill property in 1861, and in possession of the same, plaintiff being in possession by his tenant, the defendant could’not acquire title against his co-tenants by the purchase and foreclosure of the Kifer mortgage, a common encumbrance, and plaintiff is entitled to recover.</p> <p>3. That a mortgagee of an undivided interest in land in possession is a tenant in common, as regards the owners of the other undivided interests.</p> <p>4. That to suspend the rent there must be an actual eviction, and as plaintiff was not a party to either the suit in ejectment or the scire facias on the mortgage by which the eviction is alleged to have been effected — if the jury believe that defendant, and not Joseph Henderson, was the owner of the Kifer mortgage, and the real plaintiff in the proceedings on t'he mortgage, and was at the time these proceedings were prosecuted and the alleged eviction took place, the assignee of the lease sued on, and in possession of the demised premises as such assignee, neither the ejectment nor the scire facias on the mortgage constitutes such an eviction as will suspend the rent.</p> <p>5. That in any event plaintiff is entitled to recover the proportion of the stipulated rent which fairly arose and was derived from that portion of the land from which the tenant or his assignee was not evicted.</p> <p>The defendant also submitted a number of points.</p> <p>The court charged that the plaintiff was not entitled to recover, and that their verdict must be for the defendant; and that this peremptory instruction upon their part rendered a formal answer to the various points of the counsel unnecessary.</p> <p>The verdict was for the defendant.</p> <p>The plaintiff took a writ of error; assigning for error the instruction of the court and declining to answer the points.</p>

<p>A testator devised land to his son William, “ he paying the legacies hereafter enjoined on him to pay,” one was to a daughter,Nancy. He devised other land to his son John, he to pay legacies. He then directed, “ should either of my two sons die without issue, that such son’s portion shall pass to the survivor.” William died intestate without issue. Held, 1. That on William’s death his devise passed to John. 2. That Nancy’s legacy was not a charge on William’s land. 3. That the legacy not having been paid in William’s life was not a charge in the hands of John.</p>

<p>Appeal from the Court of Common Pleas of Greene county: No. 140, to October and November Term 1872.</p> <p>In the distribution of the proceeds of the sheriff’s sale of the ■ franchises, &c., of the Waynesburg Turnpike Road Company.</p> <p>To April Term 1871, No. 3, of the Court of Common Pleas of Greene county, John S. Bayard issued a fi. fa., under which the sheriff levied on all the property, franchises, &c., of the Waynesburg Turnpike Road Company; other fi. fas. were afterwards issued and the property, franchises, &c., sold under all the executions for 17250.</p> <p>This fund was brought into court and its distribution referred to Geerge L. Wyly, Esq., as auditor, who made a report distributing the fund to execution-creditors according to the priority of their executions. Exceptions were filed to this report, which was set aside and sent back to the auditor, who was directed to report distribution amongst all the creditors of the company as in case of insolvency. The auditor so reported and his report was confirmed by the court.</p> <p>Bayard and other execution-creditors appealed to the Supreme Court, and assigned for error, the decree confirming the report of the auditor.</p>

<p>1. Fowlei- gave to a national bank,&c., not then being indebted to it, a mortgage to secure the bank for notes, &c., thereafter to be discounted for him. Held, that under the National Currency Act, June 3d 1864, the mortgage was void.</p> <p>2. Corporations both for their powers and the mode of exercising them depend upon the statute creating them.</p> <p>3. Under the Currency Act no other than personal security can be taken by a bank for a loan.</p> <p>4. Lending money by a national bank on mortgage or real estate security is ultra vires and forbidden.</p> <p>5. The 52d section of the National Currency Act refers to mortgages taken for pre-existing debts.</p> <p>6. Fowler gave a mortgage to a national bank to secure future advances and afterwards assigned for the benefit of creditors. Held, that the assignee might resist the mortgage on the ground of its invalidity.</p> <p>7. The mortgage being void, no action on it could be sustained.</p> <p>8. Courts, even with the consent of the defendant, will not enforce a contract in violation of a statute although not expressly made void.</p> <p>9. If a plaintiff cannot open his case without showing that he has broken the law, courts will not assist him to recover, whatever his justice may be.</p>

<p>1. In a soire facias sur judgment in ejectment, the defendant cannot show facts which would have been an answer to the original action.</p> <p>2. Possession partly before and partly after the judgment cannot be shown in a scire facias to support the Statute of Limitations.</p> <p>3. A plaintiff died after recovering a judgment in ejectment. His heirs could have execution on the judgment.</p>

<p>Error to the Court of Common Pleas of Chester county: Of January Term 1874, No. 193.</p> <p>This was an action on the case brought October 14th 1872, by John Scott, Jr., and Amos Scott, trading as Scott & Brother, against the National Bank of Chester Valley to recover the value of four government bonds, each of $1000, which had been placed by the plaintiffs with the bank for safe-keeping, and which had been stolen by John S. Martin, a clerk or teller of the bank.</p> <p>The bank was located in Coatesville ; the plaintiffs were storekeepers in the neighborhood and had kept an account with the bank from its organization, many years before. They were in the habit of depositing their government bonds and other securities with the bank for safe-keeping. Prior to October 1st 1872, they had deposited with the bank, bonds to the amount of $7000, which were contained in an envelope, and placed in a safe in the vault of the bank. On that day, or the day before, Martin absconded, being in default to the bank to the extent of about $26,000. On the 3d of October, one of the plaintiffs came to the bank and asked for their envelope, and upon examination it was discovered that four bonds of $1000 each were missing; it was afterwards ascertained that they had been stolen by Martin.</p> <p>Mr. Davis, the cashier of the bank, testified that when the bank had originally received for Safe-keeping the securities of persons desiring to deposit them in bank, each depositor placed his securities in his own box, and the boxes were placed in a large vault in the back part of the banking-room, behind the counter; that subsequently, the bank having been advised that unless they kept these securities as they did their own, they would be liable in case of loss, they procured a burglar safe, which they put inside of their vault. The boxes took too much space to be contained in the safe, and the bank proposed to these depositors, that if they were willing to put their securities into envelopes and have them thus placed in the safe, they might deposit them there.</p> <p>The depositors, amongst others the plaintiffs, acceded to this. The envelopes were numbered, and a check or card given by. the bank to the depositor. The check read: “Scott & Brother left with the bank a package containing valuable securities, said depositor assuming all risk from robbery or otherwise, said package to be delivered only to the depositor in person or on his written order, and surrender of this ticket.” The plaintiffs gave to the bank a written direction to have the coupons cut off the bonds as they became due, and credited to their account with the bank. It had been regularly so done ; the last coupons were cut off on the 1st of July 1872; the cashier had not seen the bonds after that day; nor had he known of their loss till the 3d of October, when the plaintiffs came for them after Martin had absconded; nor was his defalcation known or suspected till then.</p> <p>The securities of depositors were kept with the same care and in the same manner as the securities and bank-notes of the bank, and the individual securities of the president and cashier. The packages were delivered to the depositor by whatsoever officer of the bank was asked for them ; all the officers of the bank had access to the vault and the safe; the bank kept no record of the securities. All the other envelopes were examined and found correct.</p> <p>Martin entered the employ of the bank about April 1st 1867. Witness had known Martin from childhood ; he had a high reputation for integrity; never heard of anything wrong about him till he absconded; was the best officer the bank ever had. As afterwards discovered the first money Martin took from the bank was in July 1870.</p> <p>Mr. Gibbons, the president of the bank, testified much as the cashier: he also said that by opening a letter to Martin by mistake, witness and cashier ascertained early in 1871 that Martin had been dealing in stocks through Gilbough, Bond & Co., brokers in Philadelphia; Gilbough had formerly been a clerk in the bank; the witness went to Philadelphia to see Gilbough; they told witness that Martin had dealt to small amounts; they promised that if Martin again speculated they would advise witness; witness considered from that, that he had taken such measures as would secure the bank from any further speculations ; nothing was said to Martin on the subject. Witness saw Martin’s account three times a week, assisted him in counting up his cash, adding his figures, &c., looked over his books, &c. When witness learned that the bonds had been taken, he visited Gil-bough, Bond & Co., having been informed that they had received them and demanded the bonds from them ; they said they kept no numbers and were not liable for coupon bonds which passed by handing over. The bank had Martin pursued and arrested; he was convicted and sentenced for the larceny of these bonds.</p> <p>At the time Martin absconded, and for some time previously, his salary was $800; it had been lower when he first entered the bank, and had been gradually increased, tie was a young man, but was married; his mode of living did not appear to be beyond Ivs means; his habits inexpensive and nothing about them to excite suspicion. He had the confidence of the whole community, was treasurer of the Coatesville Gas Company, and of a church of which he was a member; and had been a receiver of the payments for the stock of a railroad company which had gone into operation not a great while before. In all these capacities he had been faithful.</p> <p>A number of witnesses, residents of the neighborhood, testified that Martin had always borne a good character.</p> <p>He had continued in his stock speculations, but Gilbough, Bond & Co. never informed the officers of the bank; nor did the officers make further inquiry about it.</p> <p>The accounts of Martin were examined slightly, his cash accounts always right according to the books; he had been acting-as receiving-teller at the time he absconded.</p> <p>Mr. Adams, the National Bank examiner, who had been called in to examine Martin’s accounts, testified:—</p> <p>“ Davis has as much as he can do to get through with; might have added up the columns every day; take two hours of every day; could only discover the false entries on note and discount book; the work would require considerable time; have to be watched all day long; take two or three hours daily; have to be done after the close of business; not usually done, unless grounds of suspicion; this bank conducted as well as any in Eastern Pennsylvania ; not customary to go over work in that way ; usual affairs settled in one-half hour; have to carry on his correspondence after bank hours; dividend six per cent., half-yearly; much of the defalcations were in false additions; the only cause of complaint was because he was allowed to keep his ledger, which was a check on his work; apart from that the bank is run- in tiptop style.”</p> <p>The plaintiffs’ points were:—</p> <p>1. If the jury find the defendant was a bailee for compensation, and that one of the officers of the bank stole and disposed of the property deposited, the plaintiff is entitled to recover.</p> <p>2. Even if the jury find the defendant was a bailee without compensation, and that one of the officers of the bank stole and disposed of the property, the plaintiff is entitled to recover.</p> <p>3. If the jury believe that there was want of ordinary care on the part of the defendant, or any of its officers, in keeping the bonds, or in retaining John L. Martin, the defaulter, in their employ after the fact that he was dealing in stocks was known, or in allowing him to keep the only book that was a check upon his operations, or in not sufficiently scrutinizing his accounts, the plaintiff is entitled to recover.</p> <p>The answers were:—</p> <p>“ 1. The law would be so if the defendant was a bailee for a consideration ; but in this case there is no proof of any consideration whatever.</p> <p>“ 2. This is not the law, provided the depositee (the bank) used ordinary care and prudence in the selection of their officers. Nothing but gross negligence on the part of the bank in making the selection will render it liable to the plaintiffs.</p> <p>“ 3. The default of the bank officers, in not looking over the accounts, cannot be taken advantage of by the plaintiffs. They were not defrauded by his account-books, but it is a case of direct larceny of their bonds.”</p> <p>The court (Pearson, P. J., of the 12th district), after giving a synopsis of the facts charged :—</p> <p>* * * “This is what we consider an outline of the facts; they are for the determination of the jury, who must pass on the evidence, and from that fill up the details. On this statement we must declare the law, which you must apply to the facts as you find them. [These bonds were delivered to the officers of the bank as mere depositees, without any benefit to the depositee, so far as has been proved, and for the convenience of the plaintiffs, and the bank was bound to no greater care of the deposit than a person of ordinary care and prudence generally takes of his own goods of equal value.]</p> <p>“ The depositee is responsible only for gross negligence; whether there was or was not gross negligence in this particular case is a question of fact for the jury.</p> <p>“ It is, perhaps, pretty clear that the defendants’ officers took the same care of the plaintiffs’ bonds that they did of the money of the bank, and of their own private bonds and property ; both were deposited in the same place, .and left under the control of the same clerks or agents.</p> <p>“ These bonds were not taken by outside force, but were abstracted by one of the bank clerks; carried off feloniously by him. Was he a man who, from his known character, would be intrusted in a bank by persons of ordinary prudence ?</p> <p>“ You have heard the statement of numerous witnesses as to the general character of this young man; all speak of him in the highest terms. He appears to have had the confidence of the entire community, as well as that of the bank officers; stood well in church and state; was made the treasurer of one of the churches, and of the Gas Company; nothing was known or said against him, so far as we can gather from the witnesses. Was it gross carelessness to trust him ?</p> <p>“ It is said, however, that more than a year before his delinquency became public, the cashier and president both knew that he had been dealing in stocks, and this, in itself, should have put those officers on their guard. You have heard the statement of both of those gentlemen, and, from that, it appears that when they accidentally discovered that he had so dealt on one occasion, they at once inquired of the broker in Philadelphia, with whom he dealt, and were informed that he had made one small purchase— had done well in it, and the broker, in whom the officers had confidence, promised that if he dealt further they should be informed.</p> <p>“ They never heard of any other dealing until the clerk had greatly defrauded the bank, committed the larceny of these bonds, and had absconded. Were the officers guilty of imprudence in retaining the clerk under the circumstances ?</p> <p>“ Is a single purchase and sale of stock such evidence of moral delinquency as would call for the immediate discharge of a valuable clerk of good general character ? It strikes us that it would be judging harshly of an act done daily in the cities, and business followed by men generally esteemed respectable. Had he been found at the gaming-table, or engaged in some fraudulent or dishonest practices, he should not be continued in a place of trust.</p> <p>“ These officers seemed to have acted with reasonable care and prudence in taking the steps they did to prevent a repetition of that kind of speculation.</p> <p>“ It is contended that the officers were careless in not examining more frequently Martin’s accounts, and had they looked into them with more vigilance and skill they would have detected his delinquencies and discovered his dishonesty. It is very clear, if you believe those officers, that they never did make any such discovery, had no suspicion that anything was wrong, and, therefore, continued to trust him with all of the property of the bank. [They were not bound to search into his accounts for the benefit of a gratuitous bailor, and his loss did not arise out of any account kept by the clerk, but from a transaction outside of his employment.]</p> <p>“ If a man should ask a merchant to keep a package of money over night, for the accommodation of the depositor, and the desk should be opendd and the money stolen by the merchant’s clerk, could it be successfully urged that it might have been discovered that the clerk was dishonest, and had stolen his master’s goods, if the merchant had watched with sufficient vigilance ? It would certainly be a good answer for the merchant to say, I never did discover the clerk’s dishonesty, I trusted him with my own money, and was not bound to seek out his delinquencies for the sake of a gratuitous bailor.</p> <p>“ [It is assumed, that if the bonds were stolen by defendant’s clerk, it is liable whether his propensity to steal was known or not, and without regard to his general character. We instruct you that there is no such legal principle as applied to the loss of goods bailed without hire for the accommodation of the bailor.] This subject underwent careful examination in the case of Foster v. The Essex Bank, 17 Mass. 479, and the doctrine there enunciated has been adhered to ever since, if we may judge from what is laid down in Parsons on Contracts, title ‘ Bailment.’</p> <p>“It has been likened to the case of servants in a tavern, to which it has no similitude. Guests in an inn are a profit to the keeper, and therefore are in the light of bailors for hire paid. Besides, innkeepers are held to strict account as a matter of public policy, but a guest at a private house would be placed on a different footing. He could scarcely urge a claim successfully against his host for the loss of his goods through the dishonesty of servants, unless he would show that the man he was visiting, knew of their propensity.</p> <p>“ It was ruled by Lord Coke in Southcote’s Case, that unless goods were specially received, they must be safely kept at the peril of the bailee. But the soundness of that case was questioned soon after, and was expressly overruled in Coggs v. Bernard, and has never since been considered sound. It is questionable whether the defendant would be held liable even under that case, as the ticket given to plaintiffs shows that the package was to be left at the risk of the depositors, either from robbery or otherwise. The question as to gross carelessness on the part of the bank in keeping these bonds, or the selection of their clerk, is one of fact to be decided by the jury. If it did not exist, your verdict will be in favor of the defendants. If it did, you will find for the plaintiffs the full value of the bonds at the time they were abstracted or stolen.” ></p> <p>The verdict was for the defendants.</p> <p>The plaintiffs removed the record to the Supreme Court and assigned for error the answers to the points and the parts of the charge in brackets.</p>

<p>Appeal from the Orphans’ Court of Philadelphia: No. 275, to January Term 1871. In the estate of Martha McBride, deceased.</p> <p>The decedent, then a resident of Minnesota, on the 7th of June 1867, made her will which was signed by herself and her husband John McBride, “who hereby consents to and approves of the foregoing will.”</p> <p>She gave real estate which ■ she owned in Philadelphia to her children, Samuel McCanless and others whom she named, “ to be equally divided between them, share and share alike.” She authorized her executors to rent her real estate, and put the proceeds to interest, and if they should think it “to the best advantage,” to sell the real estate, and invest the proceeds: the whole to be divided when her youngest daughter arrived at age. She gave to her son Samuel T. McCanless, what should be coming to her out of her first husband’s estate, and at his death to go to his children. She gave to her three youngest children, children of her first husband, all her personal property. She appointed Thomas It. Patton and William Blakely, Jr., her executors to - settle her estate in Pennsylvania, and other executors in Minnesota to settle her “ affairs and dispose of my personal property in the state of Minnesota.” She made no provision in this will for her husband John McBride.</p> <p>The executors in Pennsylvania filed their account December 30th 1869, charging themselves with $3453.37, a very large proportion of which was rents received from the real estate of the testatrix in Pennsylvania. The balance in the hands of the executors was $2583.32. This was referred to John B. Collahan, Esq., to report distribution.</p> <p>Before the auditor, John McBride, the surviving husband of the testatrix, claimed as a creditor. His claim being resisted by the devisees, he was offered as a witness to establish it. He was rejected by the auditor as incompetent. The auditor allowed the claims of a number of the creditors of Mrs. McBride, which reduced the balance in the hands of the executors to $1884.13. This sum he divided amongst the children of Mrs. McBride in accordance with her will: and so reported.</p> <p>McBride filed exceptions to the report, one of which was, that the auditor would not permit him to testify in support of his claim.</p> <p>The Orphans’ Court (Allison, P. J.) dismissed his exceptions, and confirmed the auditor’s report. McBride made no claim before the auditor or the Orphans’ Court as surviving husband.</p> <p>McBride appealed to the Supreme Court, and assigned the following errors:—</p> <p>1. Dismissing the first exception of John McBride, viz.: “Because the auditor refused to permit the said claimant John McBride to testify in support of his own claim.”</p> <p>2. Because it appears from the record that the balance for distribution among the legatees as reported by the auditor and allowed by the Orphans’ Court consisted of rents derived from real estate of the testatrix, Martha R. McBride, and that the same belonged and ought to have been awarded to the appellant, who, as appears from the record, was the husband of the testatrix, and tenant by the curtesy of said real estate.</p>

<p>1. In ejectment by Graham on an equitable title against Mulliken, who claimed under conveyance from Graham’s vendor; a memorandum of a sale to Graham was admissible as evidence of his title without proof of notice of it to Mulliken.</p> <p>2. It was not necessary that Mulliken should have notice of the identical paper to make it evidence; it was part of Graham’s evidence of his equitable title.</p> <p>3. Vague reports of strangers or information by one not interested will not affect a purchaser with notice.</p> <p>4. A purchaser will be affected by information derived from a person interested and from a source likely to gain credit, although not the party or his agent.</p> <p>6. Evidence in this case to affect a purchaser with notice of an equitable title.</p>

<p>Appeal from the Court of Common Pleas of Philadelphia: In Equity: No. 52, to January Term 1873.</p> <p>The questions in this case arose under the Act of May 3d 1871, Pamph. L. 522, relating to granting licenses to sell intoxicating liquors. The parts of the act material to the case are as follows:</p> <p>“ Sect. 1. That at the next municipal election in the Twenty-second ward of the city of Philadelphia, and at the annual municipal election every third year thereafter, it shall be the duty of the inspectors and judges of election-said ward, to receive tickets, either written or printed, from the legal voters of said ward, labelled on the outside, license, and on the inside, for license or against license, and to deposit said tickets in a box provided for that purpose by said inspectors and judges, as is required by law in case of other tickets received by said election; and the tickets so received shall be counted, and a return of the same made to the clerk of the Court of Quarter Sessions of the city and county of Philadelphia, duly certified by the return judges of said ward, which certificate shall be filed with the other records of said court.</p> <p>“ Sect. 2. It shall be the duty of the constables of the said ward to give due public notice, by printed handbills, throughout the ward, of such special election above provided for, thirty days previous to the time of holding the next annual municipal election, at which time the question of license or no license will be submitted to the voters of said ward; also, thirty days’ notice for the annual municipal election every third year thereafter.</p> <p>“ Sect. 3. That in receiving and counting, and in making returns of the votes cast, the inspectors, judge and clerks of said election shall be governed by the laws of this Commonwealth regulating general elections; and all penalties of said election laws are hereby extended to, and shall apply to the voters, inspectors, judges and clerks acting at and in attendance upon the elections held under the provisions of this act.</p> <p>“ Sect. 4. Whenever, by the returns of election in the Twenty-second ward of the city of Philadelphia, it shall appear that there is a majority against license, it shall not be lawful for any license to issue for the sale of spirituous, vinous, malt or other intoxicating liquors in said ward, at any time thereafter, until at an election as above provided,, a majority of tbe voters of said ward shall vote in favor of a license.</p> <p>“ Sect. 5. Any person who shall hereafter be convicted of selling, or offering for sale, in the Twenty-second ward of the city of Philadelphia, any intoxicating liquors, spirituous, vinous, malt or other intoxicating liquors, without a license, shall be sentenced to pay a fine of $50, and confinement in the house of correction or county jail for the period of six months for the first offence, and for the second and each subsequent offence, a fine of $100, and confinement in the house of correction or county jail for the period of one year.”</p> <p>An election under the provisions of the act was held in the Twenty-second ward, and a majority of votes having been cast against granting license, a bill in equity was filed in the Court of Common Pleas against Thomas Locke, James Bain and Alexander McCuen, city commissioners, to restrain them from granting license to any person to sell intoxicating liquors in the Twenty-second ward.</p> <p>The court granted the injunction; the commissioners appealed to the Supreme Court, and assigned for error the decree granting the injunction.</p> <p>The question discussed was the constitutionality of the Act of May 3d 1871.</p>