Volume 75 — Pennsylvania State Reports

5. This was an action of ejectment, brought August 1st 1873, for a tract of 364 acres of land in Beaver township, formerly Mifflin township, Columbia county.

<p>Error to the Court of Common Pleas of Northumberland county : No. 16, to September Term 1873.</p> <p>This action was commenced before a justice of the peace by-Clark B. Zimmerman against the county of Northumberland and was removed July 26th 1867 by appeal into the Court of Common Pleas.</p> <p>The suit was brought by the plaintiff to recover from the county of Northumberland compensation for services rendered as special policeman for the townships of Coal and Mount Carmel in county of Northumberland; he having been appointed by Governor Geary under the Act of April 12th 1867, Pamph. L. 716, entitled, “ An act for the better protection of person, property and life in the mining regions of this Commonwealth.”</p> <p>The act is as follows:—</p> <p>“ Whereas, it is alleged that in certain counties, in the mining regions of this Commonwealth, many acts of violence have been committed, on the persons and property of peaceful citizens, causing great insecurity, and frequent destruction of life, and the perpetrators of such outrages and murders have not been brought to punishment,</p> <p>“ Sect. 1. Be it enacted, &c. That it shall be lawful for the Governor, on the petition of one hundred citizens of any county, in the mining regions of this state, verified by the affidavits of at least twenty such citizens, and other satisfactory proofs, showing tfiat the local authorities of such county are inadequate and insufficient, for the protection of person, property and life, within such county, or any township or portion thereof, the governor is hereby authorized to appoint a marshal of police, and a sufficient number of officers of police, to give adequate protection to the persons and property of the inhabitants of said county, who shall be paid for their services out of the treasury of said county. * * *</p> <p>“ Sect. 3. The police officers appointed by this act shall have the like powers and .authority as constables for the preservation of the peace and the arrest of offenders against the laws, &c.' * * * and also for the execution of criminal process, when directed by the marshal of police, by endorsement on the warrant; and the said police officers shall, in all cases, be subject to the orders of the marshal of police. * * *</p> <p>“ Sect. o. The governor may make such rules and regulations for the government of the police force authorized by this act, as he may think best adapted to make the force efficient, and may create distinctions in rank, inferior to the marshal, and the officers holding such rank shall be obeyed and respected, as directed by such rules and regulations ; and the governor shall, from time to time, fix and determine the.'rate of compensation, according to their rank, to be paid to the police officers authorized to be appointed by this act, and may direct that any portion of the force shall be employed as a detective police, and shall have power to direct that the said force shall be armed and equipped in such a manner as to render them the most efficient in carrying into full effect the intentions of this act; and the expenses of such arming and equipping shall be paid by said county out of its treasury. * * *</p> <p>“Sect. 7. It shall be lawful for the police appointed under this act, in the execution of their duties, to enter any county adjoining the county in which the commission of the offence may occur, in pursuit of the offender, and to make the arrest in such adjoining county, with the same power and authority as in the county in which the offence was committed.” * * *</p> <p>The cause was tried April 7th 1873, before Elwell, P. J., of the 26th district.</p> <p>■ The plaintiff offered in evidence a certified copy by the secretary of the Commonwealth of a petition of 166 citizens of the county of Northumberland praying the governor to appoint police officers under above-stated act, accompanied by the affidavit of May 11th 1867, of twenty citizens to the truth of the statements set out in the petition.</p> <p>The offer was objected to by the defendant because there was no authority by law for the secretary of the Commonwealth to certify copies of such documents.</p> <p>The offer was received and a bill of exceptions sealed.</p> <p>The petition and affidavit which were as stated in the offer, were then given in evidence.</p> <p>The plaintiff then offered in evidence the commission dated April 12th 1867, issued to Joseph Heisler as marshal of police of Schuylkill county, to be followed by the certificate of the secretary of the Commonwealth of May 2d 1867, that Heisler was appointed marshal of police for Schuylkill county; that his jurisdiction was extended to Coal and Mount Carmel townships in Northumberland county; to be followed by a letter from Governor Geary, extending Heisler’s jurisdiction to those townships and declaring that the police officers, including the plaintiff, named in the letter were to act as police officers in Northumberland county under the same rules as governed similar officers in Schuylkill county; and a certificate of. the secretary of the Commonwealth of March 31st 1870, that the.rate of compensation fixed by the governor to be paid to the police officers of Coal and Mount Carmel townships was $75 per month; a certified copy of a letter from the governor, dated May 1st 1867, directing that all the police officers acting under Marshal Heisler should receive $75 per month; that Heisler acted as marshal for those townships, and the plaintiff after having been commissioned, acted as a police officer for one month; also further to show by parol testimony that Heisler was authorized by Governor Geary to inform the police officers of Coal and Mount Carmel, that he had fixed their salary at $75 per month; that Heisler delivered to the plaintiff with his commission, the letter of Gov. Geary of May 1st 1867, and a copy of the rules governing these police officers.</p> <p>The defendant objected to the admission of Heisler’s commission ; because it was irrelevant, as it gives him no power to act in Northumberland county. Defendant objected to certificate of May 2d of the secretary of the Commonwealth, because the governor had no authority to extend Heisler’s jurisdiction to Coal and Mt. Carmel townships; because the paper does not purport to be a copy of any record in the secretary’s office. Defendant objected to the governor’s letter of May 21st 1867, because he had no authority to extend Heisler’s jurisdiction to Coal and Mount Carmel townships; because it does not purport to be an official act by him as governor ; that its statement that certificates had been issued, is not evidence and the governor had no authority to appoint special policemen for townships in Northumberland county. Defendant objected to the certificate of March 31st 1870, that the governor had fixed the compensation, &c., because it does not purport to be a copy of any record, &c., in the secretary’s office, but merely an act of the governor three years previously. Defendant objected to the copy of letter of May 1st 1867, because it is addressed to Heisler as marshal of Schuylkill county and is dated twenty days before the application for the appointment of police officers in Northumberland county; and before the extension of Heisler’s jurisdiction into Northumberland county; and to the commission because the governor had no authority to appoint police officers for the townships of Coal and Mount Carmel.</p> <p>By the Court: “ The certificates of the deputy secretary of the Commonwealth, dated respectively May 31st 1867 and May 2d 1867, and also that part of the parol evidence as to what the governor said to Mr. Heisler in regard to the salary, is rejected. 2d, the objections to all other portions of the offer are overruled and the evidence admitted.”</p> <p>A bill of exceptions was sealed for defendant.</p> <p>The plaintiff read the commission from Governor Geary to Heisler, dated April 23d 1867, reciting the Act of April 12th 1867; the petition and affidavit of citizens of Schuylkill county as required by the act, and appointing Heisler marshal of police of Schuylkill county.</p> <p>Circular letter dated May 1st 1867, from the governor to Heisler, instructing him that all the policemen under him were to be of equal rank and receive as compensation $76 per month; also rules of same date from Heisler to police officers.</p> <p>Commission May 21st 1867 to plaintiff reciting the Act of April 12th 1867 and the proper petition and affidavit, and appointing him an officer of police for the townships of Mount Carmel and Coal, in the county of Northumberland.</p> <p>Letter of same date from the governor to Heisler informing him of the appointment of the plaintiff and others as police officers for Mount Carmel and Coal townships and extending Heisler’s jurisdiction as marshal to those townships.</p> <p>Heisler testified: that he received a letter from the governor when he received plaintiff’s commission, that he had lost or mislaid it, had made diligent search for it and not been able to find it.</p> <p>The plaintiff proposed to ask the witness whether by the letter the governor had fixed the salaries of the police, and whether that was communicated to the plaintiff by the witness when he delivered his commission to him.</p> <p>Defendant objected to the offer, because the act of the governor fixing the 'salary should be proved by a copy from the record in the office of the secretary of the Commonwealth; — the letter would not be the best evidence of the governor’s official act.</p> <p>The offer was admitted and a bill of exceptions sealed.</p> <p>The witness said the contents were, that the compensation to police officers for Northumberland county should be $76 per month, and they should be under the same rules as 'those of Schuylkill county. Witness further testified: — that the plaintiff commenced acting shortly after receiving his commission and served more than a month; — that he and the other police officers demanded their pay from the commissioners of Northumberland county, they refused, saying there was no provision for their pay.</p> <p>Plaintiff testified as to his serving as police officer, the time he served, the demand from the commissioners and their refusal; his receiving his commission, the governor’s printed circular, &c., in a sealed official envelope from the secretary of the Commonwealth, by the hands of Heisler.</p> <p>Judge Elwell instructed the jury that the Act of April 12th 1867 was constitutional; and after referring to the application of the citizens of Mount Carmel and Coal under the act, he said:—</p> <p>* * * “ On the same day the governor appointed and commissioned the plaintiff as such police officer for said townships, and by letter extended the jurisdiction of Joseph Heisler, who had been before appointed marshal of police for Schuylkill county, to the townships before mentioned in this county. The law requires no particular form of appointment — anything which indicates the selection of the governor is sufficient for the purpose. The extension of the jurisdiction of Marshal Heisler was equivalent to, and in fact was an appointment. But it is argued by counsel for defendant that the appointment of these officers as expressed for Mount Carmel and Coal townships was invalid, and conferred no authority upon them, and that the county is not liable to compensate them for their services. We have reserved the question for further consideration, but now charge you pro forma that the appointment of the plaintiff is to be considered by you as a valid appointment, entitling him to the compensation provided by the statute for services rendered. The question of fact for your consideration are these:</p> <p>“ 1. Did the governor fix the amount of compensation to be paid to the police officers in Northumberland county at seventy-five dollars per month ?</p> <p>“ 2. Did the plaintiff render one month’s service before bringing this suit? and,</p> <p>“ 3. Did he present his bill and demand payment before bringing suit ?</p> <p>The judge then referred to portions of the evidence.</p> <p>* * * “I may call your attention to that part of Heisler’s testi'mony in which he stated that he was directed by the governor to inform the plaintiff as to the amount of compensation he was to receive. The declaration of the governor accompanying the delivering of the commission, made for the purpose of being communicated to the plaintiff, is entitled to be taken into consideration in deciding the question.</p> <p>* * * “ In conclusion wo say to you that if you find the three propositions or inquiries above stated, in the affirmative, the plaintiff is entitled to recover the sum of seventy-five dollars with interest from such time as you see proper to allow it. But if the salary was not fixed by the governor, or if the plaintiff did not serve as claimed or did not demand payment before suit was brought, the verdict should be for the defendant.”</p> <p>The reserved question was: “Whether the appointment of the plaintiff, by the governor, as a police officer, under the Act of the 12th of April 1867, was such as renders the county of Northumberland liable for services as such officer.”</p> <p>The jury found for the plaintiff $100.99, and the court afterwards entered judgment on the verdict for the plaintiff on the reserved question.</p> <p>The defendant sued out a writ of error and, in eight specifications, assigned for error the decisions of the court on the questions of evidence and the charge. The substance of the exceptions being stated in the opinion of the Supreme Court, it is not necessary to give them in detail.</p>

This was an action of assumpsit brought by the county of Mon-tour against the Directors of the Poor of Danville and Mahoning, to recover the amount paid by the plaintiffs to the State Lunatic Asylum for the support, &c., of Joseph Harmon, an insane pauper. At. the May Sessions 1859, of the Court of Quarter Sessions of Montour county, Joseph Harmon was indicted for an assault and battery.

<p>The matter considered arose upon two bills in equity in the Supreme Court, No. 13 and No. 14, to January Term 1874.</p> <p>No. 13 was a bill filed by Francis Wells and others, citizens and voters of Philadelphia, against James Bain, Alexander MeOuen and Thomas M. Locke, commissioners of the city of Philadelphia, and Edwin H. Fitler, Edward Browning, John P. Verree, Henry S. Hagert and John 0. James, commissioners of election under an ordinance of the convention to revise and amend the Constitution of Pennsylvania.</p> <p>No. 14 was a bill filed by John H. Donnelly, an inspector of elections of the Fifth -ward of Philadelphia, against Edwin H. Fitler and others, commissioners of elections, &c., as above stated.</p> <p>Bill No. 13 averred that Fitler and the other commissioners proposed to hold an election in Philadelphia on the 3d Tuesday of December 1873, and to assume and exercise the powers, &c., conferred on them by an ordinance of the convention, and to set aside the requirements of the 6th section of the Act of April 11th 1872, providing for the call of a convention to amend .the constitution, and to prevent the election officers of Philadelphia from discharging their duties, and that Bain and the other city commissioners proposed to expend large sums of money belonging to the city in defraying the expenses of such election; that the aforesaid ordinance was attempted to be justified by the said Act of April 11, 1872, which authorized the convention only to prepare the form for an amended constitution and submit it to the people at an election to be held according to law; that by the ordinance the proposed amended constitution was to be submitted to the people as a whole, whereas it was required by one-third of the convention that Article 5, relating to the judiciary, should be submitted separately to the people.</p> <p>The prayer was for an injunction, restraining the defendants from expending any money in relation to the election, and the commissioners from holding such election.</p> <p>Bill No. 14 averred that the plaintiff was a duly appointed inspector of elections in the Fifth ward of Philadelphia, and under a penalty for the performance of his duties as such inspector. The bill further averred as in bill No. 13, and further, that Fitler and the other commissioners designed to prevent him and the other election officers of Philadelphia from performing their duty as such officers, and to appoint other election officers in their stead.</p> <p>The prayer was for an injunction to restrain the commissioners from interfering with the plaintiff in the exercise of his office as inspector, and from appointing other election officers in his place.'</p> <p>The Act of June 2d 1871, “ To authorize a popular vote upon the question of calling a convention to amend the constitution of Pennsylvania,” provided:</p> <p>Sect. 1. That the question of calling a convention to amend the constitution of this Commonwealth be submitted to a vote of the people at the general election to be held on the second Tuesday of October next, the said question to be voted upon in manner following, to wit: * * '* and all votes cast as aforesaid shall be received, counted and returned by the proper election officers and return judges as votes for governor are received, counted and returned under existing laws.</p> <p>Sect. 2. That the election aforesaid shall be held and be subject to all the provisions of law which apply to general elections ; the sheriffs of the several counties shall give notice of this act in their election proclamation the 'present year, and the governor shall cause all the returns of the said election, as received by the secretary of the Commonwealth, to be laid before the legislature at its next annual session.</p> <p>- The Act of April 11th 1872, “ To provide for calling a convention to amend'the constitution,” provided:</p> <p>Sect. 1. That at the general election to be held on the second Tuesday of October next, there shall be elected by the qualified electors of this Commonwealth delegates to a convention to revise and amend the constitution of this state ; the said convention shall consist of one hundred and thirty-three members, to be elected in the manner following: Twenty-eight members thereof shall be elected in the state at large as follows : — Each voter of the state shall vote for not more than fourteen candidates, and the twenty-eight highest in vote shall be declared elected; ninety-nine delegates shall be apportioned to and elected from the different senatorial districts of the state, three delegates to be elected for each senator therefrom; and in choosing all district delegates each voter shall be entitled to vote for not more than two of the members to be chosen from his district, and the three candidates highest in vote shall be declared elected, except in the county of Allegheny, forming the twenty-third senatorial district, where no voter shall vote for more than six candidates, and the nine highest in vote shall be elected; and in the counties of Luzerne, Monroe and Pike, forming the thirteenth senatorial district, where no voter shall vote for more than four candidates, and the six highest in vote shall be elected; and six additional delegates shall be chosen from the city of Philadelphia by a vote at large in said city; and in their election no voter shall vote for more than three candidates, and the six highest in vote shall be declared elected.</p> <p>Sect. 2. The following regulations shall apply to the aforesaid election to be held on the second Tuesday of October next, and to returns of the same:—</p> <p>First. — The said election shall be held and conducted by the proper election officers of the several election districts of the Commonwealth, and shall be governed and regulated in all respects by the general election laws of the Commonwealth, so far as the same shall be applicable thereto and not inconsistent with the provisions of this act. * * *.</p> <p>Fourth. — In the city of Philadeljxhia the return judges shall meet at the State House, at ten o’clock, on Thursday next following the election, and make out the returns for said city of the votes cast therein for delegates at large and city and district delegates to be members of the convention ; the return judges of the several election districts within each county of the state, excluding Philadelphia, shall meet on the Friday next following the election at the usual place for the meeting of the return judges of their county, and shall make out full and accurate returns for the county of the votes cast therein for members of the convention and for district members of the same; and the proceedings of the return judges of the said city of Philadelphia, and of the several counties of the Commonwealth, in the making of their returns, shall be the same as those prescribed for return judges in the case of an election for governor, except that returns transmitted to the secretary of the Commonwealth shall be addressed to that officer alone and not to the Speaker of the Senate.</p> <p>Fifth. — The prothonotary of Philadelphia and the prothonotaries of the several counties shall, with reference to such returns, promptly and faithfully perform all the duties enjoined upon them by the eighty-fourth and eighty-fifth sections of the general election Act of July 2d, one thousand eight hundred and thirty-nine. * * *.</p> <p>Sect. 3. It shall be the duty of the delegates elected as aforesaid to assemble in convention, in the hall of the House of Representatives, at the state capitol in Harrisburg, on the second Tuesday of November, one thousand eight hundred and seventy-two, at twelve o’clock M., that day, with general powers of adjournment as to time and place; and it shall be the duty of the secretary of the Commonwealth to call the convention to order at that time of its assembling, and to submit all the returns of election in his possession, * * * * * and thereupon said convention shall proceed to organize by electing one of their number as president, and, after the members are sworn in, such other officers as may be needed in the transaction of business.</p> <p>Sect. 4. Said convention, so elected, assembled and organized, shall have power to propose to the citizens of this Commonwealth, for their approval or rejection, a new constitution or amendments to the present one, or specific amendments to be voted for separately, which shall be engrossed and signed by the president and chief clerk, and delivered to the secretary of the Commonwealth, by whom and under whose direction it or they shall be entered on record in his office, and published once a week, in at least two newspapers in each county where two papers are published, for four weeks next preceding the day of election that shall be held for the adoption or rejection of the constitution or amendments so submitted: Provided, That one-third of all the members of the convention shall have the right to require the separate and distinct submission to a popular vote of any change and amendment proposed by the convention: And, provided further, That nothing herein contained shall authorize the said convention to change the language, or to alter in any manner the several provisions, of the ninth article of the present constitution, commonly known as the declaration of rights, but the same shall be excepted from the powers given to said convention, and shall be and remain inviolate for ever: And provided further, That the said convention shall not create, establish or submit any proposition for the establishment of a court or courts with exclusive equity jurisdiction.</p> <p>Sect. 5. The convention shall submit the amendments agreed to by it to the qualified voters of the state, for their adoption or rejection, at such time or times, and in such manner as the convention shall prescribe, subject, however, to the limitation as to the separate submission of amendments contained in this act; and all amendments accepted by a majority vote of the electors voting thereon shall become a part of the constitution.</p> <p>Sect. 6. The election to decide for or against the adoption of the new constitution or specific amendments shall be conducted as the general elections of this Commonwealth are now by law conducted ; and it shall be the duty of the return judges of the respective counties, first having ascertained the number of votes given for or against the new constitution or separate or specific amendments, if any, to make out duplicate returns thereof, expressed in words at length, one of which returns so made shall be filed in the office of the prothonotary of the proper county,' and the other sealed and directed to the secretary of the Commonwealth ; which said returns shall be opened, counted and published as the returns for governor are now by law counted and published ; and when the number of votes given for or against the new or revised constitution, or for or against separate specific amendments, if any, shall have been summed up and ascertained and the duplicate certificates thereof delivered to the proper officers, the governor shall declare, by proclamation, the result of the election, and if a majority of the votes polled shall be for the new or revised constitution, or for any separate specific amendments, such new or revised constitution and separate specific amendments shall be thenceforth the constitution of this Commonwealth. * * *.</p> <p>Sect. 8. That in case of vacancies in the membership of said convention, the same shall be filled as follows: — If such vacancy shall be of a member at large of the convention, those members at large who shall have been voted for by the same voters, or by a majority of the same voters who shall have voted for and elected the member whose place is to be filled, shall fill such vacancy; if such a vacancy shall be of a district or city member of the convention, those members at large of the convention who shall have been voted for by the same or by a majority of the same voters who shall have voted for such district or city member shall fill such vacancy; in either case, the appointment to fill a vacancy shall be made by the members at large aforesaid, or by a majority of them, in writing; and all such written appointments shall be filed among the convention records.</p> <p>Sect. 9. That the secretary of the Commonwealth shall prepare a form of notice of the election to be held for the purpose of choosing members of the aforesaid convention, including such portions of this act as shall be necessary and proper for the information of voters and election officers at the said election, as to their respective rights and duties in relation thereto; which said form so prepared shall be transmitted by him to the sheriffs of the several 'cbunties, to be observed by them in making proclamation of the holding of said election in their respective jurisdictions. * * * The ordinance is as follows:—</p> <p>An ordinance for submitting the amended Constitution of Pennsylvania to a vote of the qualified electors thereof.</p> <p>Be it ordained ly the Constitutional Convention of the Commonwealth of Pennsylvania, as follows :—</p> <p>1. That the amended Constitution prepared by this convention be submitted to the qualified electors of the Commonwealth for their adoption or rejection, at an election to be held on the third Tuesday of December next; except as hereinafter ordered and directed, the said election shall be held and conducted by the regular election officers in the several election districts throughout the Commonwealth, under all the regulations and provisions of existing laws relating to general elections; and the sheriffs of the several counties shall give at least twenty days’ notice of said election by proclamation.</p> <p>2. The secretary of the Commonwealth shall, at least twenty days before the said election, furnish to the commissioners of each county, a sufficient number of properly prepared circulars of instructions. The commissioners of the several counties shall cause to be printed at least three times as many ballots of affirmative votes as there are voters in each county — and the same number of negative votes; and the said commissioners shall, at least five days before said election, cause to be fairly distributed to the several election districts in their respective counties, the said ballots, tally-lists, returns, circulars of instructions, and such other books and papers as may be necessary. The ballots shall be printed or written in the following form: On the outside the words “ New Constitutionin the inside for all persons giving, affirmative votes the words “For the New Constitution,” and for all persons giving negative votes the words “ Against the New Constitution.”</p> <p>3. If it shall appear that a majority of the votes polled are for the new constitution, then it shall he the Constitution of the Commonwealth of Pennsylvania on-and after the first day of January, in the year of our Lord one thousand eight hundred and seventy-four ; but if it shall appear that a majority of the votes polled were against the new constitution, then it shall be rejected and be null and void.</p> <p>4. Five Commissioners of Election, viz.: Edwin H. Fitler, Edward Browning, John P. Verree, Henry S. Hagert and John 0. James, are hereby appointed by this convention, who shall have direction of the election upon this amended Constitution in the city of Philadelphia. The said commissioners shall be duly sworn or affirmed to perform their duties with impartiality and fidelity. They shall also have power to fill vacancies in their own number. It shall be the duty of said commissioners, or a majority of them, and they shall have authority to make a registration of voters for the several election divisions of said city, and to furnish the lists so made to the election officers of each precinct or division; to distribute the tickets for said city provided for by this ordinance to be used at the election; to appoint a judge and two inspectors for each election division, by whom the election therein shall he held and conducted, and to give all necessary instructions to the election officers regarding their duties in holding the election and in making returns thereof N° person shall serve as an election officer who Avould be disqualified under section 15, article 8, of the new constitution. The general return of the election in the said city shall be opened, computed and certified before the said commissioners, and with their approval — Avhich approval shall be endorsed upon the return. They shall make report, directed to the President of this Convention, of their official action under this ordinance and concerning the conduct of the said election within the said city.</p> <p>The judges and inspectors aforesaid shall conduct the election in all respects conformably to the general election laws of this Commonwealth, and with like powers and duties to those of ordinary election officers.. Each inspector shall appoint one clerk to assist the hoard in the performance of its duties, and all the election officers shall be duly sworn or affirmed according to law, and shall possess all the qualifications required by law of election officers in this Commonwealth. At said election any duly qualified elector who shall be unregistered, shall be permitted to vote upon making proof of his right to the election officers, according to the general election laws of this Commonwealth. Return inspectors and their clerks and an hourly count of the votes shall be. dispensed with, but overseers of election may he selected for any precinct by said election commissioners, whose duties and powers shall be the same as those of overseers of election in said city under existing election laws applicable thereto. Returns of the election shall be’ made in said city as in the case of an election for governor, but a triplicate general return for said city shall be made out and forwarded to the President of this Convention at Harrisburg, as is hereafter provided in case of county returns.</p> <p>5. In each of the counties of the Commonwealth (except Philadelphia), the returns of the election shall be made as in the case of an election for governor, but the return judges in each county shall make out a triplicate county return and transmit the same, within five days after the election, directed to the President of this Convention at Harrisburg.</p> <p>Done in Convention this third day of November, in the year of our Lord one thousand eight hundred and seventy-three.</p>

<p>1. The constitutional convention of 1873 had no inherent rights; it had powers only.</p> <p>2. The Bill of Rights is a reservation of rights out of the general powers to the people themselves, not a delegation of powers to a convention.</p> <p>3. The convention was under the rule, that no agent or subordinate can claim the powers, liberties or franchises of the people except by their express grant or by plain and certain implication.</p> <p>4. The people had the same.right to limit the powers of their delegates as to bound the powers of their representatives.</p> <p>5. The legislature cannot confer powers inconsistent with the rights, safety and liberties of the people, because no consent can be implied, but they may pass limitations in favor of their essential rights.</p> <p>6. The convention called under the Acts of 1871 and 1872 could not take from the people their sovereign right to ratify or reject the constitution or ordinance formed by it, and could not infuse life or vigor into its work before ratification by the people.</p>

<p>1. The Act of March 31st 1843, sect. 2, requiring the sheriff to dismiss a deputy, &c., for taking illegal fees, has not been repealed, is constitutional and in furtherance of the Bill of Bights.</p> <p>2. The relation between a sheriff and his deputy is civil and of known legal character.</p> <p>3. An application under the Act of 1843, to require the sheriff to dismiss a deputy, is not a criminal proceeding against the sheriff for an offence, but in nature of a civil remedy.</p> <p>4. There is no appeal from a decree of the Common Pleas on the merits, requiring the dismissal of a deputy sheriff.</p>

<p>Error to the District Court of Philadelphia: No. 125, to January Term 1872.</p> <p>This was an amicable action in assumpsit, in which Richard Keavy was plaintiff and Isaac M. Shisler defendant, commenced February 23d 1871.</p> <p>By writing filed March 7th 1871, it was “ agreed that all matters in controversy in above suit be referred to George C. Miller, Peter F. Stout and Isaac M. Post, under the provision of the Act of Assembly of the Commonwealth of Pennsylvania approved June 16th 1836, that such submission become a rule of court, either party to be bound and concluded by the award of said referees, or a majority of them, without the right to appeal, file exception, or take out a writ of error. Attorney to accept service for either one.”</p> <p>1871. June 20th. — By .writing filed it was agreed that Norman H. Stevens be substituted as arbitrator in the above case, in place of Isaac M. Post, who had declined to serve. 1871. August 14th. — Defendant’s withdrawal from rule of arbitration was filed. 1871. August 15th. — Award of referees filed; it was as follows :—</p> <p>“ We, the undersigned, arbitrators named in the foregoing rule of reference and agreement for substitution, met at the office of A. A. Hirst, Esq., on Monday, the 17th July 1871, at 3 o’clock p. m., the plaintiff and his counsel and defendant’s counsel, Edward A. Brady, Esq., present: proof being given of the proper service of notice on defendant personally; at request of counsel for defendant we adjourned until Monday, July 24th 1871, at 3 o’clock in the afternoon, to meet at the same place, when we were attended by both plaintiff and defendant, and by each of their counsel. We made progress, and at request of counsel for defendant, we adjourned until Monday, August 14th 1871, at 3 o’clock in the afternoon, at the same place, when we were attended by plaintiff and counsel for plaintiff, and having determined the matter in controversy submitted to us, we award that there is due from the defendant to the plaintiff the sum of one hundred and forty dollars.- Witness our hands this 14th day of August, A. D. 1871.”</p> <p>The defendant’s notice of revocation was as follows:—</p> <p>“ Messrs. N. H. Stevens, P. F. Stout and G. C. Miller:— Please notice that I hereby withdraw from the arbitration rule filed in the above case, and decline to abide by said reference or to be bound thereby. Isaac M. Shisler., Defendant.</p> <p>“ August 12th 1871.”</p> <p>The defendant filed exceptions to the award, viz. :</p> <p>1. The award is illegal.</p> <p>2, 3. It was filed after written notice to the referees of revocation of the submission and after the revocation was filed.</p> <p>7, The submission is not in accordance with law.</p> <p>The affidavit of the defendant as to the notice of revocation was, that on the 14th of August 1871, he served a written notice of revocation on the counsel of the plaintiff, and at the same time served a similar notice on Peter F. Stout, one of the referees, “ with whom similar notices were left for the other referees before the award was made.” The affidavit further averred that defendant had a good defence to the whole of plaintiff’s claim, and set out the grounds of the defence, which he averred he could prove.</p> <p>The District Court (Lynd, J.) . dismissed the exception, and directed judgment on the award to be entered for the plaintiff.</p> <p>On the removal of the record to the Supreme Court by the defendant, this order of the court was assigned for error.</p>

<p>1. As a general rule a question of negligence is for the jury, especially if there be substantial doubt as to the fact^ or their inferences.</p> <p>2. Negligence is dependent upon the circumstances of the case; and is for the jury where the measure of duty is not unvarying; a higher degree of care is demanded in some cases than in others and both the duty and its extent to be ascertained by facts.</p> <p>3. Where negligence is concurrent a child will not be held to the same degree of care as an adult.</p> <p>"4. The plaintiff, thirteen years of age,-with a companion of same age, signalled a street car, got on the front platform without objection from the driver or conductor and paid their fare. After riding for a considerable distance, plaintiff said he was going to get off, the driver “ slacked up,” but did not stop; in .getting off plaintiff was injured. Whether he had been guilty of negligence was for the jury.</p> <p>5. Whether permitting the plaintiff to stand on the front platform and get</p> <p>off from it were negligence, and proper care was exercised in not stopping the car sooner, was for the jury. 1</p> <p>6. It is the duty of a railway company to cause its cars to come to a full stop for passengers to get off. _</p>

<p>Appeal from the Orphans’ Court of Philadelphia: No. 18 to January Term 1872. In the distribution of the estate of Isabella Graham Page, deceased. The appeal was taken by the Girard Life Insurance, Annuity and Trust Company, guardian of the estates of Howard Wurts Page, Ethel Nelson Page, and William Byrd Page, minor children of the decedent, who left also to survive her her husband Samuel Davis Page, the appellee. At the time of her death the decedent’s domicil was in Pennsylvania.</p> <p>The decedent’s estate was derived under the will of her father, William Wurts, of Trenton, New Jersey, who died December 25th 1858. The will was dated January 17th 1856.</p> <p>By the first clause he gave to five trustees, whom he also made executors, “ their heirs, executors, administrators and assigns, and the survivors and survivor of them, all my estate, real, personal and mixed,” in trust “to and for the sole use, benefit and advantage of my beloved children” (naming them, amongst whom was Isabella Graham Wurts, afterwards Page, the decedent), “ and grandchildren.”</p> <p>The will proceeded : * * * “And it is my will, and I do hereby order and direct, that my said trustees shall judiciously invest the proceeds of my estate, after settlement and my just debts paid, in some safe way, as their judgment may direct, as a joint or common fund, for the benefit of my said heirs, or they may, at the discretion of the said trustees, be separately invested for the benefit of each respectively, in their several proportions; the income from which said investments accruing to my children, during the minority of each, to be applied to their education and reasonable expenses, and any surplus after such expenses paid, to be so invested as to accumulate for their benefit.</p> <p>“ It is my will, and I do hereby direct, that the sum of three thousand dollars be paid to each of my sons, viz., John Howard Wurts, William Wilberforce Wurts, and George Washington Wurts, as they respectively attain the age of twenty-one years, and the balance or remainder of their respective portions I do order and direct to be paid to them as they respectively attain the age of twenty-two years.</p> <p>“ The portions of my daughters, Anna Wurts, Mary Cousinery, Elizabeth Grandin Wurts, Martha Haskins Wurts, and Isabella Graham Wurts, is to be held by the said trustees above named. their heirs, executors, administrators and assigns, and the survivors or survivor of them, in trust for the sole use and benefit of my said daughters, and shall not be in the power of, or subject to the debts, control or management of their husbands: this restriction and condition is to apply to those of my daughters now married, and such of them as may hereafter become married, and the receipt of my said daughters, respectively, for their several and respective portions of annual income, or yearly profits, in their own name and their own hand, notwithstanding their present or future coverture, shall be sufficient discharge in law to the said trustees. * * *</p> <p>“In case of the decease of any of my said children without issue, the share or shares of such so dying is to be merged in the general fund, and to be divided, as above directed, among my said heirs, and subject to the aforesaid conditions and restrictions. * * *</p> <p>“I do further declare it to be my,will, and my executors are hereby empowered and permitted, at their discretion, to loan, on interest, from time to time, to my son-in-law, Charles Wurts, in cash, any part or portion of the amount of my estate that may be coming or payable to my daughter, Mrs. Anna Wurts, after my decease, with her approbation and consent, the object being to preserve such sum as part of the trust fund created by my will for the benefit of my said daughter and her heirs. * * *</p> <p>“ Fourthly. In case it shall be deemed advisable at any time by said trustees and executors to sell and dispose of any part of my real estate, I do hereby authorize and empower them, and the survivors or survivor of them, to make such sale, at their discretion, either at public or private sale, and thereupon to make, execute and deliver a good and sufficient deed or deeds and conveyances in the law, to any purchaser or purchasers for any part of the real estate so by them sold. The proceeds of such sales to be received by the said trustees, and invested and held by them, upon the same trusts and to and for the same uses and purposes as are hereinbefore expressed and set forth.”</p> <p>The testator left a very large personal estate and also real estate both in New Jersey and Pennsylvania.</p> <p>Isabella G. Wurts was married to Mr. Page in September 1861.</p> <p>All the real estate of the testator in New Jersey and part of that in Pennsylvania had been sold before Mrs. Page’s death. She became entitled also, not directly from the testator, to the sum of $9893.58.</p> <p>The shares of the testator’s daughters and granddaughters were held by the trustees in separate investments at Mrs. Page’s death in 1867. Administration of her estate was granted by the register of wills of Philadelphia to her husband Mr. Page; ancillary administration also was granted to him by the Probate Court of New Jersey.</p> <p>Proceedings in chancery in New Jersey between the executors and ■ trustees of tbe testator and Mr. Page and others were commenced February 12th 1868, to determine the rights of the respective parties under the will, &c. Ey his decree the chancellor declared, “that it was the intention of the testator that as well the real as personal estate devised and bequeathed by him to the complainants should be by them converted into money and invested equally for the use of “his children and grandchildren upon the conditions, &c., in his will; and that, therefore, the said real estate, devised in trust as aforesaid from the time of the decease of said testator, for the purpose of succession, must, in equity, be considered as converted into and treated as personal estate; * * * that upon the decease of testator’s said daughter, Isabella Gr. Page, leaving issue then living, her estate of and in said real and personal estate then in the hands of said complainants was not defeated, but became absolute and indefeasible, and passed to and vested in her personal representatives, and should be held by said complainants as personal estate, to be paid by them to her surviving husband, Samuel Davis Page, as the administrator, in the state of New Jersey, of the said Isabella G. Page, deceased, to be paid and distributed by him as such administrator according to law.”</p> <p>On the 31st of December 1870 the chancellor, in like manner, further ordered, adjudged and decreed, and “ doth hereby further order, adjudge and decree that the said complainants do forthwith pay to the said Samuel'Davis Page, administrator as aforesaid, all the aforesaid separate fund which was in their hands for the use of Isabella Gr. Page at the time of her decease, not included in the said John Howard Wurts’s portion thereof, and also all the arrears of income thereon, by assigning to him as administrator, as aforesaid, all the securities in which the said separate fund and arrears of income are invested, and by paying to him, as such administrator, any portion or portions thereof that may be uninvested. * * *</p> <p>“And the said chancellor hath, in like manner, ordered, &c., that all the estate, real and personal, which was of the said testator at the time of his decease, and now in the hands of said complainants, not appertaining to the aforesaid separate fund, and not herein above decreed to be assigned or paid as aforesaid, on account of said John Howard Wurts’s share of said estate, nor required to discharge the costs and other expenses of this cause, now is, and hereafter shall be held by said complainants, &c., in trust, as follows : that is to say: * * * as to one other one-seventh part thereof, in trust for Samuel David Page as administrator of Isabella G. Page, deceased, absolutely.” * * *</p> <p>Upon this decree the trustees paid to Mr. Page under his New Jersey letters of administration the sum of $66,658.44, including the $9893.58 above mentioned as belonging to Mrs. Page.</p> <p>Mr. Page settled his administration account in New Jersey, charging himself with the sum so received from the trustees, and being allowed a credit for the whole sum, having appropriated it to himself as administrator in Pennsylvania.</p> <p>He filed his administration account with the register in Philadelphia, on the 9th of February 1871, charging himself with the amount decreed to him in New Jersey and claiming no credit.</p> <p>On 17th of March 1871 the Orphans’ Court referred the account to J. D. Rodney, Esq., as auditor to audit and adjust and report distribution. The auditor reported in substance as above stated.</p> <p>He stated an account allowing commissions to the administrator, and allowing to the children of Mrs. Page three-fourths of the sum of $9893.58; and showing a balance of $54,421.28 for distribution: he found that of this balance $1000 were the proceeds of real estate in Pennsylvania sold by the trustees.</p> <p>Mr. Page claimed the whole sum of $54,421.28 in his own right.</p> <p>The minors claimed three-fourths of the sum of $53,421.28 and the whole of the $1000, subject to Mr. Page’s life-estate.</p> <p>The auditor decided that the Court of Chancery, a court of competent jurisdiction, having, on a question of distribution, decreed that Mrs. Page’s share belonged to her husband in virtue of his marital rights, the Orphans’ Court had no jurisdiction to decree distribution except as to the $9893.58.</p> <p>He also decided “that there was a conversion of the real estate in Pennsylvania, by the will of Mr. Wurts, and the $1000, the proceeds of such real estate, remains properly within the item cash, and should be comprehended in the distribution of such cash.”</p> <p>The auditor further decided that the estate to which Mrs. Page was entitled under her father’s will did not on her death pass under the Married Woman’s Act of April 11th 1848, but under the Intestate Act of April 8th 3833 (Pamph. ,L. 316, 1 Br. Purd. 806). He therefore awarded to Mrs. Page’s minor children $7049.18, three-fourths of the $9893.58, less commissions; and to Mr. Page $59,607.27, made up of one-fourth of the last-mentioned sum and the whole of the sum of $54,421.28, after deducting expenses.</p> <p>The guardian of the .minors filed exceptions to the report; they were overruled and the report confirmed.</p> <p>The guardian appealed to the Supreme Court and assigned the decree of confirmation for error.</p>

<p>1. The councils of Philadelphia, previously to the Act of March 22d 1865, had power to direct the grading, curbing and paving of sidewalks and to file liens against the adjacent lots for the cost.</p> <p>2. The object of the Act of 1865 was to compel the councils upon the application of residents on a street, to pave, &c.</p>

<p>Appeal from the Orphans’- Coiirt of Philadelphia: No. 201, to January Term 1872. . ■</p> <p>The proceedings in this case arose undei; the will of Warner E. Washington, who died October 1st'1860, having made a will dated August 2d I860-, and leaving a,widow, Marie Antoinette Washington, and a minor daughter, .Annie Dorsey Washington. After making provision for the payment of his debts, and continuing his business, and also for his wife, &c., he directed his estate to be paid to “ The Pennsylvania . Company for Insurance on Lives and Granting Annuities,” in trust for the uses, &c., afterward stated in his will. ....</p> <p>He further directed as follows:— . ■</p> <p>Item Ninth. — Upon the death of my wife, the said company shall hold, my said moneys and estate, principal and interest, in " trust for such person or ’persons, and for such estate or estates, and under such limitations as my said wife shall by her last will and testament-direct, limit and appoint of and concerning the same.</p> <p>“ Item Tenth. — In the event of the death of my wife, my daughter being living, without having executed the foregoing power of appointment, I direct the said company, first, to pay to the guardians of my said daughter in' equal half-yearly payments during her minority, for her support and education, the sum of eight hundred dollars annually, and to pay her, my said daughter, annually, in half-yearly payments, after she becomes of full age, the sum of fifteen hundred dollars, for her sole and separate use, whether single or married. Second, to pay annually, during their respective lives, in half-yearly payments, the sum of'four hundred dollars to my mother E. S. Washington, to my sister Mary three hundred dollars, to my sisters Louisa and Rebecca each one hundred and fifty dollars, and to my sisters Catharine and Virginia each one hundred dollars. If during my daughter’s minority the revenues of my said invested- estate sñould exceed her annuity of eight hundred dollars, and the respective annuities of my mother and sisters, I direct the balance of such income to be invested and to accumulate during the minority of my said daughter for the benefit of my said estate, but after my said daughter shall have reached full age, all the excess of income of my estate beyond the said annuities to her and my mother and sisters shall be paid to my said daughter for her sole and separate estate, in addition to the annuity of fifteen hundred dollars she would then be entitled to receive. * * *</p> <p>“ Item. Twelfth. — Upon the respective deaths of my mother and sisters, the annuities bequeathed to them hereby shall cease and determine, and be added to the income of my daughter Annie.</p> <p>“ Item Thirteenth. — Upon the death of my said daughter Annie, my wife having previously died intestate, it is my will that my said estate, subject to such annuities as may be then outstanding, shall be held by the said company for the use and benefit of such persons, and for such estates as my said daughter shall by her last will direct, limit and appoint. And in default of such will and testament, that the said company shall hold my said estate for the absolute use and benefit of any child or children of my said- daughter, or the child or children of any child of my said daughter, in equal’proportions; the child or children of any child of my said daughter to take the proportion that his, her, or their ancestor would have been entitled to, if liVing at the death of my said daughter.</p> <p>“ Item Fourteenth. — If it should so happen that my said daughter should die without executing the power of appointment herein given to her, and without leaving any child or children, or the child or children of any deceased child of her my said daughter, then my will is, that the said company shall hold my said estate for the use, benefit and behoof absolutely of such person or persons as would be my representatives under the intestate laws of Pennsylvania, if I had then died intestate arid without issue.” * * *</p> <p>Mrs. Washington, the widow, died on the 23d of May 1862, having made a will which she declared to be an execution of her power of appointment under the decedent’s will, but which was held not to be a good execution of the power.</p> <p>On the 23d of September 1870, Louisa Dorsey, the testamentary guardian of Annie D. Washington the minor, petitioned the Orphans’ Court of Philadelphia, setting out there were large accumulations of income from the trust estate beyond the amount directed to be paid for the maintenance of the minor; that the petitioner was advised that upon her arrival at age the minor, under the Act of Assembly of April 18th 1873, would be entitled to receive the whole income of the trust estate, and' praying the court to decree the payment of an increased allowance for the use of the minor.</p> <p>The company filed an answer, declaring that they were advised that the time limited for the accumulation of the income of the trust property would not expire for more than ten years; that the minor was not entitled to the additional allowance under the provisions of the Act of 1853, and that the accumulations of income were not for the benefit of the minor, but for the remaindermen under the will of Mrs. Washington.</p> <p>The Act of 18th April 1853, sec. 9, is as follows:—</p> <p>“ No person or persons shall, after the passing of this act, by any deed, will or otherwise, settle or dispose of any real or personal property, so and in such manner that the rents, issues, interests or profits thereof shall be wholly or partially accumulated for any longer term than the life or lives of any such grantor or grantors, settlor, settlors or testator, and the term of twenty-one years from the death of any such grantor, settlor or -testatorthat is to say, only after such decease during the minority or respective minorities, with allowance for the period of gestation of any person or persons, who, under the uses or trusts of the deed, will, or other assurance directing such accumulation, would, for the time being, if of full age, be entitled unto the rents, issues, interests and profits so directed to accumulate; and in every case where any accumulation shall be directed otherwise than as aforesaid, such direction shall be null and void in so far as it shall-exceed the limits of this act, and the rents, issues, interests and profits so directed to be accumulated contrary to the provisions of .this act shall go to and be received by such person or persons as would have been entitled thereto, if such accumulation had not been directed. Provided, That any donation, bequest, or devise for any literary, scientific, charitable or religious purpose, shall not come within the prohibition of this section, which shall take effect and be in force as well in respect to wills heretofore made by persons yet living and of competent mind, as in respect to wills hereafter to be made; And provided, That notwithstanding any direction to accumulate rents, issues, interest and profits, for the benefit of any minor or minors, it shall be lawful for the proper court as aforesaid, on the application of the guardian, where there shall be no other means for maintenance or education, to decree an adequate allowance for such purpose, but in such manner as to make an equal distribution among those having equal lights or expectancies, whether at the time being minors or of lawful age.”</p> <p>The matter was referred to John M. Collins, Esq., as examiner and master, who reported that the direction in the will for accumulation of the income was void, and that all the accumulations during her minority belonged to the minor. He also recommended, for reasons which he gave, the increased allowance prayed for.</p> <p>After exceptions to the master’s report, it was confirmed by the Orphans’ Court, Paxson, J.</p> <p>The Trust Company appealed to the Supreme Court, and in ten specifications assigned the decree for error.</p>

<p>1. The holder of a note agreed in writing with the drawers upon a consideration, to give them time, with the proviso, “ that no delay of demand shall interfere with any claim I may have upon the endorsers of the said note.” Meld, that endorsers were not discharged.</p> <p>2. If time be given or any act be done by the holder which^prejudices the right of the endorser to his action against the drawer or subrogation to the rights of the holder, the endorser will be discharged.</p> <p>3. A discharge of the debtor by the creditor will not discharge the surety, if there be an agreement between the creditor and debtor that the surety shall not be discharged.</p> <p>4. The reservation must appear on the agreement; it cannot be shown by parol evidence.</p> <p>5. The endorser not being a party to the agreement, he could pay the note and sue the drawer.</p> <p>6. The extension of time to the drawer so that the rights of the endorser are preserved will not discharge him.</p> <p>7. Manufacturers’ Bank w. Bank of Pennsylvania, 7 W. & S. 335, distinguished.</p>

<p>Error to the District Court of Philadelphia: No. 219, of January Term 1874.</p> <p>This was an action of assumpsit, commenced March 8th 1870, by Mahlon Eox against Joseph Singerly.</p> <p>The cause of action arose under the following circumstances: The firm of Grim & Brother being engaged in brickmaking in Philadelphia, and being the lessee of the brick-yard-from the defendant; Peter Grim, one of the partners, filed a bill in equity against his copartners, and the plaintiff was appointed receiver. Under an order of court, the plaintiff as receiver sold the personal property of the firm at public sale on the premises. The defendant was the purchaser of goods to the amount of $579.80. On demand of payment, he declined to pay, claiming to apply the purchase-money in discharge of rent, which he alleged was due to him for the yard.</p> <p>The receiver then brought this action to recover the price of the goods.</p> <p>On the trial, October 3d 1871, before Stroud, J., after the above stated facts were given in evidence by the plaintiff, the defendant offered to prove, “ that at the time of this sale an amount of rent was due by Messrs. Grim, parties to the equity suit, to defendant, for the year then past, greater than the goods sold for.”</p> <p>The court rejected the offer and sealed a bill of exceptions.</p> <p>The court reserved the following questions:—</p> <p>“ 1. Whether the plaintiff can sue without an order of the court which appointed him ?</p> <p>“ 2. Whether the plaintiff can maintain this suit in his own name?”</p> <p>And charged the jury:—</p> <p>“ The questions here are questions of law. You will find for the plaintiff for the entire amount of the property bought by the defendant.”</p> <p>The jury found for the plaintiff for $639.18, and judgment was afterwards entered on the verdict for the plaintiff on the reserved points.</p> <p>The defendant took a writ of error, and assigned for error the rejection of his offer of evidence and entering judgment on the reserved points.</p>

<p>1. Trough effected a life-insurance, being solvent; — in consideration of $1 and love and affection for his children he executed under seal an assignment of the policy to Hicks in trust for them ; put the policy and assignment into anenvelope, addressed “John W. Hicks, Plumber, 2d St., &c. — Please send this to him at my death, H. Trough,” and placed the envelope in a safe of his own firm. He paid the premiums till his death seven years after the assignment; — but never communicated the transaction to Hicks, who knew nothing of it till after his death. Held, that the assignment was invalid for want of delivery and the proceeds belonged to Trough’s estate.</p> <p>2. A gift of a chose in action or chattel cannot be made by words in futuro or words in prmsenti unaccompanied by delivery.</p> <p>3. Where the donor retains the control of a voluntary bond or chose in action given or assigned; he may cancel or destroy i't.</p> <p>4. If the determining act be in fieri the intention to deliver does not execute the gift.</p> <p>5. The assignment being without valuable consideration was not a contract or trust which could be enforced.</p> <p>6. A seal does not import a consideration, if the instrument be not delivered.</p>

<p>1. A testator gave the residue of his estate in trust to collect “ the rents, income and interest,” and pay one-fourth to each of his children during their lives and on the death of either, then to convey, &c., the fourth of the principal to such person as the deceased child by will, &e., might direct or appoint and in case of the death of either child without appointment, to grant, &c., a fourth of the principal unto such persons “ as would have been entitled to the same if the said deceased child had been legally seised of the same premises in his or her own right and died intestate.” Held to be valid active trusts.</p> <p>2. Barnett’s Appeal, 10 Wright 392, recognised; Ogden’s Appeal, 20 P. F. Smith 507 ; Yarnall’s Appeal, 20 P. F. Smith 336, distinguished.</p>

<p>1. When anote passes after maturity it is dishonored paper and the endorsee takes it subject to equities connected with the note ; but not to set-off generally.</p> <p>2 In a suit by an endorsee against the maker of a note passed after maturity, Held, that the fact that the note was made with the understanding that it was to be discounted for the payee and taken up by him and the proceeds paid in discharge of a debt due to the maker; — that the proceeds were so paid, that the payee took it up and retained it and passed it to plaintiff in consideration of a loan made by her to him, would be a defence to the suit.</p>

<p>Appeal from the decree of the Orphans’ Court of Philadelphia: No. 268, to January Term 1872.</p> <p>In the matter of the account of John S. Thackray, guardian, &c., of Charles W. Sainter and Richard Sainter, minor children of Richard J. Sainter, deceased.</p> <p>The account was referred to E. Hunn, Jr., Esq., as auditor, to audit, settle and adjust, and report a distribution of the balance.</p> <p>The only question considered on this appeal was the liability of the guardian to be charged with the value of the good-will of a tavern belonging to the minors, the guardian having rented without receiving anything for the good-will.</p> <p>The facts of the case will sufficiently appear by the following portion of the auditor’s report, and the opinion of the Supreme Court.</p> <p>“ * * * Richard J. Sainter, the father of the said minors, died intestate in the year 1859, leaving his widow, Catharine Sainter, since Catharine Boyle, and his two minor sons, Charles W. and Richard Sainter, all of whom are still living.</p> <p>“ The property of the said decedent at the time of his death consisted of a three-story brick house, with three-story back buildings, with a front on Fifth street of eighteen feet, situated at the north-west corner of Fifth and Redwood streets, and used at that time and since as a hotel.</p> <p>“ John S. Thackray was appointed guardian of said minors on the 3d day of June, a. d. 1859.</p> <p>“The debts against the estate of deceased were about eight hundred dollars in all, and as there was not sufficient ready money on hand to pay them, the accountant, with the permission of the court, gave a mortgage on the premises for the sum of one thousand dollars, and proceeded to liquidate the debts. The said premises being the only real estate left by testator, who at the time of his decease was doing a poor business, which not showing any signs of improvement in the hands of his widow after his death, the accountant executed a lease for them to John Miller on the 1st day of December, A. D. 1859, for the term of five years, ending on the first day of December, A. D. 1864, for the annual rent of three hundred dollars, and received from Miller five hundred dollars in cash for the good-will of the premises. In the lease was the following clause:—</p> <p>“ ‘ It is further agreed that upon the expiration of his term, the said Miller shall have no claim to the fixtures which are now in, or which may be put in the said premises, nor any claim for goodwill.’</p> <p>“ John Miller did a poor business, and in the year 1860 sold out his unexpired term to John Binder by assignment in writing, with the knowledge of accountant, and received from said Binder the sum of seven hundred dollars in consideration of the unexpired term, good-will and fixtures.</p> <p>“ Several months prior to the expiration of the term of the lease, and about two years prior to the time when Charles W. Sain ter, the eldest of said minors, reached his majority, the accountant executed a new lease to John Binder for the premises, for a term of eight years, commencing on the first day of December, A. D. 1864, the date of the expiration of the term of the last mentioned lease, for a rent of four hundred dollars a year. The second lease was dated the 6th day of July, A. j>. 1864. It contained the following clause :—</p> <p>“ ‘ It is further agreed that upon the expiration of his term the said John Binder shall have no claim to the fixtures which are now in or which may be put in the said premises, nor shall he have any claim for good-will. It is further agreed that the said John Binder is to keep the said premises in repair at his own expense.’</p> <p>“ Eor this eight years’ lease accountant neither asked nor received any sum of money from the tenant Binder, other than the four hundred dollars per year rent; nothing was said about the good-will or fixtures, but it seems the mother of said minors was consulted by accountant before the execution of the lease. At this time the tenant Binder was doing a good business on the premises.</p> <p>“ On the said 1st day of December, A. d. 1864, Binder assigned the last mentioned lease to John Himmilsbach with the consent of the accountant, by a written assignment endorsed, and dated December 1st 1864 ; and received in consideration of the transfer and of the good-will and fixtures and stock on the premises, $1450: at the time of the transfer the value of the stock was $100; leaving $1350 the amount paid for the good-will and fixtures. On the 20th of July 1865 accountant served a written notice on Himmilsbach, saying that he had heard Himmilsbach had underlet the premises, and requiring him to repossess th'e same. On the 21st of July, A. D. 1865, Himmilsbach assigned, but did not deliver, the last-mentioned lease and the unexpired term thereof to Carl Euchs, by a written assignment also endorsed on the lease, and dated July 21st 1865; he received in consideration thereof $500 at the time and $1000 eleven months afterwards, having given possession of said premises to Euchs a few days subsequent to the date of the assignment. It was shown also that an additional sum of $200 was paid by Euchs to Himmilsbach subsequently to the payment of the $1000 last mentioned, and under the following circumstances: At the time of the payment of the said $1000, the lease and assignment not having been yet delivered, Himmilsbach refused to deliver them until a further sum of $200 should be paid him by Euchs. Euchs then went to see accountant, who said he did not know Euchs, and refused to approve the assignment. Euchs returned to Himmilsbach and informed him of accountant’s refusal to approve the transfer. Two days after this Euchs paid the $200 to Himmilsbach and Himmilsbach delivered to Fuchs the lease with the assignment endorsed thereon, dated as above mentioned, and signed as a witness by accountant, after which accountant acknowledged Fuchs as his tenant. Of this $200, $25 were paid to the mother of the said minors; and a like sum was handed about the same time to the accountant, who charged himself with it in his account.</p> <p>“ The minors claimed that accountant had been guilty of a breach of duty in letting the premises on an eight-year lease, when the eldest of said minors was within less than two years of being twenty-one years of age, and testimony was adduced to show that a much greater sum than $400 might readily have been obtained per year for said premises at the end of the year 1864, as well as a bonus for the letting of the premises for so long a term, and for the good-will and fixtures, and the minors asked the auditor to surcharge accountant with from $200 to $300 per year from the 1st day of December, a. d. 1864 to the present time.</p> <p>“ Testimony was also offered by accountant to show that the rent was sufficient, and that it was not customary to ask a bonus after the first letting.</p> <p>“ After a careful review of the testimony on both sides as to these points, your auditor concludes that the rent might perhaps have been a fair one, had a proper bonus or price been obtained for the term, good-will and fixtures ; but cannot approve the action of accountant in granting so long a lease under the circumstances.</p> <p>“ It will be observed that the premises were let by accountant for five years, from December 1st 1859, at a rent of $300 per year; and that he received a bonus of $500 at the commencement of the term for the good-will, which with the fixtures were to remain the property of the tenant for the term of five years only. Accountant therefore had the power, and the auditor conceives it to have been his duty, to sell the said good-will and fixtures, at the expiration of said term, for as much as he could obtain from a purchaser for the new term ; which from the testimony must necessarily have been for a much greater sum in 1864 on an eight years’ lease, than in 1859 on a five years’ lease; and this was shown by the actual sale of said good-will and fixtures, together with the stock in 1864 by the then tenant Binder to Himmilsbach, for the sum of $1450, the stock being worth only $100; as well as by the fact that Himmilsbach sold his unexpired term, good-will and fixtures, &c., to Fuchs for an advance, only a short time subsequent to Himmilsbach’s purchase from Binder. It is evident from these facts, and from the consent of accountant to each successive transfer, that the accountant actually presented the good-will and fixtures of the premises in question to John Binder, notwithstanding the fact that they were part of the estate of his wards; and that Binder and the tenants, his successors, speculated successfully by selling the gift, one to another; each one realizing a handsome profit on his bargain.</p> <p>“ In view of the above, your auditor deems it his duty to surcharge accountant with $1350, which sum is the difference between the amount obtained by Binder from Himmilsbach, and the value of the stock on the premises as above stated. * * *</p> <p>“ Counsel for accountant relied on the decision in Springer’s Estate, 1 P. F. Smith 342, as relieving accountant from all liability from being surcharged with the value of the good-will and fixtures ; but it seems to your auditor that ‘ supine negligence,’ if not ‘wilful default,’ is observable in this case.”</p> <p>The auditor accordingly surcharged the accountant with $1350, at which he valued the good-will and fixtures. He also surcharged the accountant with other sums, and distributed the whole balance which he found to be due by the accountant in equal proportions between the widow and two children.</p> <p>Upon exceptions by the accountant, the Orphans’ Court struck out the other surcharges, but retained that for the good-will, and with that alteration confirmed the report of the auditor.</p> <p>The guardian appealed to the Supreme Court, and assigned the decree of the Orphans’ Court for error.</p>

98½, to January Term 1874. This was an action of assumpsit brought August 5th 1871, by the Conawingo Petroleum Refining Company against Wilson A. Cunfaingham. A case stated was filed in the cause which exhibited the following facts:— The plaintiffs and defendant entered into a contract as follows, , viz.:— “Oil City, Sept. 9th 1870.

<p>Appeal from the Court of Common Pleas of Delaware county : In Equity: Of January Term 1873, No. 214.</p> <p>The bill in this ease was filed February 20th 1871, by William D. H. Serrill against Joseph E. Burk, to compel specific execution of the following contract:—</p> <p>“ In consideration of the sum of fifty dollars this day received from William D. H. Serrill, I do hereby promise and agree for myself, my heirs, executors and administrators, to and with the said William D. H. Serrill, to grant and convey to him, his heirs or assigns, in fee simple, by a good and sufficient deed, clear of all encumbrances, all that certain tract of land with the appertenances, containing about fifty acres, situate in Ridley township, Delaware county, and on which I now reside, for the sum of five hundred dollars per acre, subject to ■ measurement, do on my being requested at any time within sixty days from the date hereof, hereby agree to convey the said premises to the said William D. IT. Serrill. The conditions are (if they should be taken) two-thirds cash, the remaining one-third bond and mortgage, secured on the premises, payable in one year.</p> <p>“Witness my hand and seal this 14th day of July, A. D. 1870.</p> <p>Joseph E. Burk.” [Seal].</p> <p>The plaintiff averred the payment of the $50, the consideration of the contract; due notice to defendant that he elected to take the land according to the terms of the contract, his tender of two-thirds of the. purchase-money, and of a bond and mortgage for the remaining third; the refusal of defendant to accept the money and the securities, and execute the deed.</p> <p>The defendant answered:—</p> <p>1. In the month of August 1870, he informed the plaintiff personally, that he, the defendant, declined specifically to perform the said contract.</p> <p>2. At the time of the execution of the paper of July 14th 1870, the defendant was a married man, and had a wife, Rebecca T. Burk, living, of which fact the plaintiff was then aware. She is still living, and declines to join in the execution of a deed for the said real estate. He cannot therefore convey the same clear of encumbrances.</p> <p>3. Ann P. Horne, widow of Aaron Morton, who was a former owner of the said real estate, is entitled to the interest of about $2300, annually, during her life, and the principal is at her death payable to the heirs of the said Aaron Morton, which said sum is a lien on the said real estate, and cannot be discharged during the life of the said widow.</p> <p>A replication was filed, and A. Lewis Smith, Esq., appointed master. He found the facts substantially as set out "in the bill and answer. He further found:—</p> <p>* * * “On August 18th 1870, the plaintiff called upon the defendant for his title papers, in order to make an examination of the title, and prepare a deed for the premises. The defendant at first temporized, stating that the papers were in the possession of his attorney at Media, but refused to give an order for them, and finally told plaintiff that he was not going to convey the property, as his wife would not sign the deed, and expressed a willingness to pay back the fifty dollars mentioned in the contract. This was the first notice which plaintiff received that defendant did not intend to convey. * * *</p> <p>“ On the day the contract was signed, the defendant informed his wife of what he had done, and she thereupon declared that she would not sign the deed, and has continued to maintain that position to the present time. The defendant himself, in his testimony, states that his unwillingness to execute a deed to the plaintiff has been, and is, because his wife refuses to join in its execution, and that if she were now willing to execute it, he would be willing to execute it also, although in point of fact, he has never directly asked her to join him in it. No evidence, however, was given to satisfy the master that Mrs. Burk withholds her consent through collusion with her husband. * * *</p> <p>“At the hearing before the master, the plaintiff asked for specific performance of the contract to the extent that the defendant was able to perform it, with compensation for the encumbrance of the dower of Aaron Morton’s widow, and indemnity against the estate of the wife of the defendant.</p> <p>“ The defendant contended that as it would be impossible to'carry out the contract by reason (1st), of the dower of Morton’s widow in the premises, and (2d), of the refusal of his wife to join, the effect of such a decree as asked for would be: 1. That the court would be making a new contract between the parties, and — 2. That it would be attempting to enforce a contract in which there was no mutuality^ — for it was freely admitted that the defendant could not have enforced this contract against the plaintiff.</p> <p>“ The question of making compensation for the dower of Morton’s widow was not seriously contested, and it seems that while it is questionable whether the plaintiff could have been compelled to take the property with this encumbrance, even with compensation, it is well established that he might compel a conveyance, and have the allowance out of the purchase-money. * * *</p> <p>“ The main and real question raised before the master, was whether in the case of a wife’s refusal to join in a deed of her bus- ‘ band’s land, the purchaser may have specific performance so far as the husband is concerned, with indemnity — which is a species of compensation adapted to cases of contingent encumbrances — against the dower of the wife.” * * *</p> <p>After an exhaustive examination and discussion of the authorities, the master, reported, “ That the defendant, Joseph E. Burk, should be decreed to convey to the plaintiff such title as he can convey, and that the plaintiff be indemnified out of the purchase-, money against the dower of said defendant’s wife.” * * *</p> <p>The defendant filed exceptions to the report.</p> <p>The court (Butler, P. J.) confirmed the report and made the following decree:—</p> <p>“ That the defendant, Joseph E. Burk, within thirty days from the date of this decree, execute and deliver a deed of conveyance to the plaintiff, in fee simple, of the real estate, &c.</p> <p>“ 2. That the plaintiff, upon receiving such deed, pay to the defendant, Joseph E. Burk, two-thirds of the purchase-money, deducting so much of the money due to the heirs of Aaron Morton, deceased, as shall not at that time be paid off.</p> <p>“ 3. That at the same time, the plaintiff execute and deliver his bond and mortgage of the said realty, to the said Joseph E. Burk, for the-other one-third of the purchase-money aforesaid, conditioned as follows:—</p> <p>“ Eor the payment of the interest thereof, half-yearly, to the said Joseph E. Burk, during the coverture of Rebecca T. Burk, the present wife of the defendant, or until such time during said coverture, as the dower of the defendant’s said wife be duly released to the plaintiff, his heirs or assigns. .</p> <p>■“ For the payment of the principal to the said Joseph E. Burk, upon such release of his said wife’s dower in the said premises, or upon her death during his lifetime, and for the payment of said principal and accrued interest to the executors, administrators or assigns of the said defendant upon his said wife surviving him, and thereafter executing such release of her dower as aforesaid, after first deducting thereout whatever sums, if any, the plaintiff, his heirs or assigns, shall have then paid for any arrears of such dower up to the time of such release.</p> <p>“In case the said wife of the defendant shall survive him and claim and receive her dower or thirds as his -widow in the said realty, then the said bond and mortgage, and the debt or moneys thereby secured, to be subject to the direction and further order of the court for the further indemnity of the plaintiff, his heirs and assigns, or for his or their compensation in respect to such dower as the court shall deem proper, and any residue thereof not used for such purpose to be paid to the executors, administrators or assigns of the said Joseph E. Burk.”</p> <p>The defendant appealed to the Supreme Court, and assigned the decree for error.</p>

270. In the court below, Leonard Streeper, John B. Meyer and Caroline Dager, executors, &c-, of George Streeper, deceased, brought an action of debt against Lorenzo D. Zimmerman ; the writ was issued April 8th 1872.

<p>Error to the Court of Common Pleas of Montgomery county: No. 280, to January Term 1874.</p> <p>A. K. Lorah, surviving partner of Willman & Lorah, brought an action before a justice of the peace against Dr. John Todd. After judgment there, it was removed into the Court of Common Pleas by appeal, on the 4th of January 1872, and the following case was stated by the parties and filed:—</p> <p>“ Dr. John Todd is a practising physician, and attended professionally Jacob Willman, the deceased partner, and his family from July 4th 1868, to December 25th 1869. During the latter part of this time, by the special request of Willman, the defendant bought clothing for himself and family of firm of Willman & Lorah, with the distinct and express understanding with Willman, that all that he bought should be a set-off pro tanto to his the defendant’s bill or demand against Willman; and such set-off actually was made by the parties. Had it not been for this agreement, the Doctor would have collected his claim long ago. Willman repeatedly urged the Doctor to buy more and he would fix it on the books of the firm as settled.</p> <p>“It is not denied that Lorah, the other partner, knew that the defendant was buying goods on these conditions. Lorah was not, however, a party to the above agreement, and did not consent thereto. Willman did the principal business, and lived in the same building where the store was.</p> <p>“The firm never attempted to collect, nor even asked the Doctor for this bill. It is admitted that the amount on the books of the firm: against the defendant, is forty dollars and thirty-two cents, and that the amount due the Doctor by Willman at the time of his decease was considerably more than this amount.</p> <p>“ It is further admitted that Willman sold these partnership goods to defendant as a part payment of his own individual debt, and the firm is solvent.</p> <p>“ If the court be of the opinion that the claim of defendant is under the above state of facts, a set-off to the demand of plaintiff, then judgment to 'be entered for the defendant, but if not, then judgment to be entered for plaintiff for forty dollars and thirty-two cents with interest from December 2d 1871.”</p> <p>The Court of Common Pleas (Ross, P. J.) entered judgment for the plaintiff for $41.32, with interest from December 2d 1871, according to the case stated.</p> <p>The defendant took a writ of error, and assigned the entering judgment for the plaintiff for error.</p>

<p>1. Bigony gave to Tyson a bond in §1000 conditioned that Bigony should not “ practise medicine within five miles of S. in which place he has this day deeded certain property to said Tyson.” Held, that on the face of the bond the sum was a penalty and not liquidated damages.</p> <p>2. The intention of the parties gathered extra the instrument may fix the sum named in it as liquidated damages, and the facts and circumstances so gathered being parol, the question is for the jury.</p> <p>3. Circumstances in this case from which the intention that the sum was liquidated damages might be inferred.</p> <p>4. Burr v. Todd, 5 Wright 206, followed.</p>

107, to July Term 1873. On the 20th of February 1872, Peter Caldwell brought an action of assumpsit against Edward Paist, George Mackey and Phineas Paist, on a promissory note for $500, made by the defendants to the plaintiffs. The record shows the following proceedings, amongst others:— “ Sept. 27. Defendants by their attorneys enter a rule of reference. Arbitrators to be chosen Oct. 26th 1872, &c. “ Oct. 26.

151. This was an action of assumpsit brought December 16th 1878, by Francis H. Gheen and William H. Morgan, trading as Gheen & Morgan, against Lewis Maxton.

<p>1. A testator by his will gave “to my sons John (and three others) each an equal share of the balance of my estate,” &e. By a codicil he provided : “ and whereas in my said will I have given unto my son John, an equal share of all my net estate, real and personal, with my other children, I do hereby declare that my will is that the said legacy or equal share be paid by my executors unto my daughter-in-law, Martha, the wife of my said son, John Bartholomew, Jr., her heirs and assigns, at the time distribution is made to my other heirs, and I do hereby ratify and confirm my said will in all other respects.” Held, the codicil revoked the bequest to John.</p> <p>2. The codicil was not a substitution by which Martha became substituted for John by operation of law.</p> <p>3. John was indebted to the testator, Martha took the full share not subject to his debts.</p> <p>4. The codicil produced the same result as if John had not been mentioned. Per Butler, P. J.</p> <p>5. Where the language in a will is plain, the intention is to be gathered from the language. Id.</p>

223, to January Term 1874. On the 29th of February 1872, a number of citizens of Delaware county petitioned the Court of Quarter Sessions for a view for a county bridge over Chester creek, in the city of Chester. Viewers were appointed who reported in favor of a bridge; the grand jury concurred and the bridge was entered of record as a county bridge.

<p>Appeal from the Court of Common Pleas of Delaware county: In Equity : No. 225, to January Term 1874.</p> <p>This was a bill in equity by Joseph Lindsay against John Maxson and Daniel Wolfenden, to enforce the specific execution of a contract for the sale of a factory and lot of ground in the city of Chester.</p> <p>The contract was between Spencer Mcllvaine and John J. Green. The plaintiff claimed under a sheriff’s sale of the equitable title of Green: the defendants claimed under a recovery by Mcllvaine, the vendor, in an ejectment brought by him to enforce the payment of the purchase-money due on the original contract.</p> <p>On the 2d of January 1865, Spencer Mcllvaine entered into an agreement in writing to sell to John J. Green the factory and lot for $13,370.62, of which $1190.62 were paid down, and the remainder made payable in instalments within ten years. Green went into possession under this contract. On the 22d of September 1866, he executed a mortgage to Rhoads & Freeman of his interest in the lot and factory, and also of the machinery and fixtures in the factory to secure the payment of $15,000 with interest in four years ; this mortgage was assigned to Lindsay the plaintiff May 16th 1867. Afterwards John J. Green conveyed his interest in the contract to James C. Green. On the 31st of October 1870, the plaintiff issued a scire facias on the mortgage against John J. Green, mortgagor, and James C. Green, terre-tenant; a defence was made by the defendants to the scire facias.</p> <p>On the 21st of January 1871, Mcllvaine brought an ejectment against James 0. Green to enforce the payment of some of the instalments of the purchase-money which had become due; no defence was made, and on the 23d of February 1871, Mcllvaine obtained an award of arbitrators, “ to be released if the defendant pay to plaintiff $12,961.17 within three weeks of the date of the award, and in case of such payment the plaintiff shall make a full conveyance of the land in fee simple.”</p> <p>On the 13th of March, Lindsay the plaintiff petitioned the court averring the amount stated in the award was more than was due to Mcllvaine and asking to be allowed to come in and defend in the ejectment. The record did not show that any action was taken on this application. On the 14th of March, Lindsay appealed from the award, and a rule was taken to strike off the appeal. On the 20th of April, Mcllvaine having agreed to reduce the amount named in the award of arbitrators by the sum of $887.51, the sum which Lindsay claimed was the excess, thus making the amount due on the contract $12,013.63, the rule was made absolute and the appeal stricken off. Green then delivered possession to Mcllvaine without an habere facias, who on the 21st of May conveyed the property to Blaisdell for $13,090.78; the amount of the award before it was abated with interest added.</p> <p>On the 27th of July 1871, the plaintiff — having prosecuted the scire facias on his mortgage against Green with due diligence— recovered a judgment, issued a levari facias under which he purchased the factory and lot at sheriff’s sale on the 24th of August 1871.</p> <p>■ On the 14th of September 1871, Blaisdell conveyed the premises to the defendants, for the consideration of $22,500; this consideration was made up of the purchase-money paid to Mcllvaine, a judgment held by Blaisdell against Green and some expenses which he had incurred.</p> <p>On the 20th of September 1871, Lindsay tendered to the attorney of Mcllvaine $12,073.60, with interest and costs, the sum to which the award had been reduced and demanded a conveyance; he continued ready and willing to pay the money, but the defendants had refused to receive it and convey.</p> <p>These facts found by the master, A. Lewis Smith, Esq., are substantially those set out in the plaintiff’s bill.</p> <p>The defendants contended that Green’s rights under the contract were extinguished by the judgment in the ejectment and the failure of either Lindsay or Green to pay the amount awarded within the time limited by the award an indefeasible title in fee simple had vested in them.</p> <p>The master, after an elaborate examination of the facts and the application of the law to them, reported in conclusion:—</p> <p>* * * “A careful consideration of the case has led me to conclude, that in no event is Mr. Lindsay entitled to a decree for specific performance in this case, and I am clearly of the opinion that the bill should be dismissed.</p> <p>44 Lindsay has, in the master’s opinion, rights yet unbarred, rights under the judgment in the ejectment, but those rights cannot be asserted here, for reasons that seem too well settled in authority.</p> <p>44 It is conceded that the ejectment brought by Mcllvaine against Green was one of the class known as4 equitable ejectments,’ and was instituted to recover the amount of purchase-money remaining due on the contract of sale, or otherwise to rescind the contract. It will not indeed lie in the mouth of the plaintiff in this bill to say that such is not the case. Eor if the ejectment at any time involved other elements than this, they were eliminated at his instance, and the amount named in the award was upon his intervention shorn down to the exact balance of purchase-money due upon the articles of agreement, with interest. The enforcement of this contract is therefore res adjudieata, and cannot, upon well settled principles, be the subject of another action, whether legal or equitable. * * * Lewis, C. J., referring to this kind of ejectment, says, it is not any ordinary judgment at law. It is regarded as containing also the substance of a decree in equity for the payment of the money party and the conveyance of the land by another. It follows that the remedies of the parties respectively must be confined to proceedings founded on that judgment. If the defendant paid the money, according to the condition, it would be the duty of the court which rendered the judgment, to compel the conveyance of the land. If he failed to pay the money, the same court would grant leave to issue hab. fac. poss. to deliver possession of the land to the plaintiff. The mere circumstance that the condition of the award in the ejectment suit is an uncertain one, does not at all impair the quality of the award itself as an adjudication of the question involved in the present suit. * * *</p> <p>44 The only method in which Lindsay can escape from the effect of ejectment, is by showing that he was neither a party nor privy to it. After putting himself on the record as an appellant from the award in that very case, he would seem to be estopped from asserting that he was not a party; but apart from that, and upon considerations hereinbefore stated, it has been seen that his rights as a privy can rest no higher than those of Green, under whom he claims, and with whom he must stand or fall with the exception that he is not to be prejudiced by any act of Green which can be construed to be in fraud of his rights as mortgagee, such as the premature delivery of his possessions to Mcllvaine; and no such fraudulent act was shown to have been done up to the final judgment in the ejectment. If, therefore, Mr. Lindsay has any rights, arising out of the contract of sale, between Mcllvaine and Green, not yet extinguished, his remedy for asserting them must be confined to proceedings founded on that judgment. And upon a proper showing to the court, in that case, that the time within which he was entitled to pay the amount named in the judgment of the court, was not specified, and was only limited to what was reasonable under the circumstances of the case, and that he is ready, or has offered to pay the amount within such reasonable time, or if it become important in the opinion of the court to show that he did in point of fact tender (as he alleges) the proper amount of the award to Mcllvaine within the three weeks therein named, or at least, within three weeks after final judgment, and he can show it, it is not doubted that his claims will receive all the consideration to which they are entitled. And if he is entitled, upon yet paying the money, to a conveyance, it is certainly within the power of the court in that case to compel one.* * *</p> <p>“ The master therefore feels reluctantly compelled to report that the plaintiff’s bill should be dismissed.”</p> <p>Exceptions were filed to the report; pending which the plaintiff asked leave to file an amended bill; leave was so granted and the amended bill was filed. It set out substantially as in the original bill, and further—</p> <p>“ 12. That at the time of the conveyance of Blaisdell to the defendants, he gave them a bond of indemnity against any defect in the title and against loss in expenditure for improvements, &c.</p> <p>“ 13. Mcllvaine was aware of the mortgage held by Lindsay, before he commenced the action of ejectment. Blaisdell knew of it before he purchased from Mcllvaine, and knew that process had been issued upon it, and Maxson & Wolfenden were aware when they purchased, that the estate and interest of Green had been sold by the sheriff under Lindsay’s mortgage and purchased by him.</p> <p>“14. Before the expiration of the three weeks named in the award in the case of Mcllvaine v. Green, the plaintiff at several times offered to pay Mcllvaine the proper amount of the award, and requested him to convey the legal title to the plaintiff. But Mcllvaine refused to do so, stating that he could not convey the same to any one without John J. Green’s consent, which would not be given to a conveyance to the plaintiff.</p> <p>“ 15. On the 20th of September 1871, the plaintiff tendered to the defendants the sum of $12,073.63, the amount of the reduced award in the ejectment, Mcllvaine v. Green, with interest and costs of suit, and demanding a deed in fee simple of their legal title in the premises; but the defendants refused to receive the same, or to convey the said title.</p> <p>“ 16. The plaintiff has always been, and still is ready and hereby offers to pay to the defendants the said sum of $12,073.63, with interest and costs of their ejectment suit, and to receive a conveyance of the legal title to the premises in fee simple, as directed by the award of arbitrators in that ease.</p> <p>“ No time having- been fixed by the court for the payment of the said sum of $12,073.33, the amount to which the sum fixed by the arbitrators was reduced by Mcllvaine, on the 20th of April 1871, and the said James C. Green and Joseph Lindsay, the mortgagee, and purchaser of his interest in the premises, being at liberty to pay the same, at a reasonable time thereafter, and the plaintiff having offered at various times to pay the said money to the said Mcllvaine and to the defendants, within such reasonable time, and to receive a conveyance of the legal title to the premises in fee simple; and the defendants having refused so to convey, your orator prays that the defendants be decreed to convey to the plaintiff all their estate, right, title and interest in the said premises, upon his paying them the amount above named, $12,073.63, with the interest and costs as above stated, in pursuance of the judgment and decree of the said court, in the suit of Mcllvaine v. Green, and that he may have such further relief as equity shall require.” -</p> <p>The defendants in their answer said:—</p> <p>“ 13. We do not know, and do not admit that Spencer Mcllvaine knew of the mortgage' held by Lindsay, before he commenced his ejectment suit, nor do we know or admit that Blaisdell knew of it before he purchased from Mcllvaine; but we knew at the time we purchased the property, that the estate and interest of the Greens had been sold at sheriff’s sale under Lindsay’s mortgage, and purchased by him; but we had been notified and advised that all the rights, title and interest of both of the Greens in and to said premises had been extinguished prior to the last-mentioned sheriff’s sale, and were informed and believed that at said sheriff’s sale said Lindsay had been notified and warned that said premises were claimed by said Blaisdell in fee.</p> <p>“14. We deny that before the expiration of the three weeks mentioned in the award, or at any other time prior to the 20th day of September 1871, said Joseph Lindsay, or any person for him, offered to pay said Spencer Mcllvaine the proper amounts of the said award, or requested him to convey the legal title of said premises to said Lindsay, or that said Mcllvaine refused to do so, stating that he could not convey the same away to any one without John J. Green’s consent, which would not be given to a conveyance to the plaintiff; and we aver that the first and only tender made by him was at the date alleged by himself in his original bill of complaint, to wit, on the 20th day of September 1871; and we further aver that said Mcllvaine was at all times willing, 'prior to his said conveyance to Blaisdell, to take the proper amount due him, had it been tendered to him, and make a conveyance; and we are informed and believe that said Lindsay knew this.” They admitted the allegations in the 15th paragraph.</p> <p>“ 16. We deny that the plaintiff lias always been ready to pay the above amount, inasmuch as he never tendered or offered to pay the same, except upon the day and year last aforesaid, and has not yet brought the same into court, which, we are informed, he had the right, and it was his duty, to do within the time limited in said award; hut we refused, upon the last-mentioned date, to receive said amount, and would not now receive the same, because we are advised that the said premises have vested in us in fee simple by an indefeasible title.</p> <p>“ We deny that the plaintiff was at liberty to pay the amount of the. reduced award within a reasonble time, in manner and form as is alleged in his amended bill of complaint, or that he has ever so offered to pay it to any one; and we are advised, and do charge, that as the award of arbitrators was never modified in any particular, except by the reduction of. the amount thereof, as above set forth; and inasmuch as the plaintiff never asked for an enlargement of the time for the payment of said amount, he was bound to pay the same within the time limited in said award.</p> <p>“17. We aver that since we have come into possession of said premises, by virtue of said deed of conveyance from'Blaisdell and wife, we have expended not less than $3000 on repairs and improvements of said factory and machinery, and have embarked a large amount of capital in a manufacturing business carried on therein; said business is now carried on by the defendant, John Maxson, alone, the said Daniel Wolfenden having, upon the 17th day of April 1872, sold out to him his interest in said business, and by deed of conveyance bearing date the same day, and recorded in said county, conveyed to him his interest in said factory and lot, with the machinery and appertenances, in fee simple.” The case under the amended bill and answer was referred to the same examiner and master; he reported: * * *</p> <p>“ The only addition to the evidence at the hearing under the present order, was the bond of indemnity given by Blaisdell to the defendants, when they took title. After the filing of the master’s first report, Joseph Lindsay took a rule in the ejectment suit of Mcllvaine v. Green, to show cause why the above-named defendants should not be ordered to convey the legal title to the premises in question to the said Lindsay, upon payment of the amount of the reduced award, with interest and costs of suit which is still pending, nothing having been done under it.</p> <p>“It was contended by the defendant’s counsel in bar of any relief under the present bill, that it is open to the same objections which induced the master to report that the first bill should be dismissed, viz.: that it is not an application in the action of ejectment, but in reality an independent equitable proceeding to attain the same end, and therefore obnoxious to the rules of' law, which forbid a second suit for a cause of action already adjudicated. The master, however, does not deem this a question now before him, or open to discussion. He is not called upon to say, whether as counsel for the plaintiff, he would have adopted the present method of accomplishing the plaintiff’s object, or whether he would have made his application in the case of Mcllvaine v. Green. The plaintiff prepared an amended bill, submitted it to the court and asked leave to file it. The court in granting him permission, said that he ‘ now unequivocally founds himself upon the judgment in that case,’ viz.: Mcllvaine v. Green. To adopt the defendant’s views, therefore, upon this point, would be to say that the court should not have allowed the amendment. It now appears also from the opinion of the court upon allowing the amended bill to be filed, that the appeal of Joseph Lindsay in the case of Mclvaine v. Green, was entertained by the court, and would not have been dismissed, had not the defendant abated the award. It also appears as conclusively that when this was done, no limitation of time within which to pay the balance due and prevent the judgment from becoming absolute was asked for or made ; the final judgment, therefore, was not entered in that case until the appeal was thus disposed of, viz.: April 20th, 1871. * * * The limit of three weeks named in the award, was out of the case, because it had already expired at this date, and because the plaintiff in the ejectment, by voluntarily abating the award, after that time should not be esteemed to have gained an undue advantage, and to have placed himself in the position he would have been, if no appeal had been taken. If he was after equity, he should do equity, and it would be but little short of indirection if by a device of that kind he would inflict a forfeiture upon the plaintiff here. * * *</p> <p>“ That a plaintiff’s title becomes absolute on failure to pay the unpaid purchase-money on or before the day stipulated in the judgment is no longer open to question, but where no time has been fixed, it is within the power of the court to ascertain it; and where it is fixed, the court may control and modify it up to the time the failure becomes absolute, if it be necessary in order to promote justice. In the case of Creight v. Shatto, 9 W. & S. 82, which was an equitable ejectment, Rogers, J. said, ‘ Time is of the essence of the verdict and judgment, and becomes a material point. Care, however, should be taken to prevent oppression, and against this the court will studiously guard. But how will it be in case a writ of error is taken within the period fixed for the payment, and the time expires before it is disposed of by the Supreme Court, and the judgment should, unexpectedly to the defendant, be affirmed? Will the defendant be estopped from avoiding the forfeiture by payment of the money due ? It is proper to say that in such a case the court can prevent injustice by giving further time for payment. As this is a ease in equity, we can so modify the decree as to prevent the injustice which would arise from an absolute affirmance of the judgment.’ Surely if the court will give time where the judgmeut is affirmed, they will do it where it is reversed, as was substantially the case with the award in Mcllvaine v. Green. It is urged by the defendants that it was Joseph Lindsay’s duty to have a new time fixed, if he did not want to abide by that fixed in the award; but in the opinion of the master, it was the duty of the plaintiff in the ejectment, who sought to enforce a forfeiture, to do everything necessary to make it complete. It was a matter within his province, as the actor in the case, and equity will not help him or shift his burdens, even if Lindsay’s negligence had concurred with his own. At the former hearings in this case some testimony was taken to show that Lindsay did, within three weeks after the date of the award, offer to pay Mcllvaine the correct amount due him, and that it was declined. Also, that the offer had been made on two occasions prior to the bringing of the ejectment suit. * * * Under the aspect which the case now presents, it is certainly, unimportant to the plaintiff here to decide whether such offers were really made or not, except, perhaps, as tending to rebut the charge of laches against him. If made, they were all made prior to the final judgment." * * *</p> <p>The master, after referring to the conflicting testimony on this subject, proceeded:—</p> <p>“As the point was not pressed by the plaintiff at the present hearing, the master will not endeavor to reconcile the conflicting statements on the subject. The defendants contend, however, that even if no time were fixed for paying the amount of the judgment, Lindsay was guilty of laches in not making any offer to pay it until September 20th, five months afterwards. But in this connection, it will be recollected that at the date of the judgment, Lindsay was but a creditor of Green, and had not yet acquired title to the equitable estate of the latter under the contract with Mcllvaine. It is true that a creditor may pay the amount to the vendor and save the forfeiture, but if he does he merely protects the defendant’s title, and is not entitled to a conveyance from the vendor, unless he has purchased the equity of the vendee. Lindsay was pressing his suit on Green’s mortgage with due diligence, and it was not until August 28th 1871, that he acquired the title to Green’s interest by means of a sheriff’s sale. The tender of the amount of the judgment in Mcllvaine v. Green, with interest and costs, was made by Lindsay on September 20th 1871. The master is of the opinion that under the circumstances this was not too late, and that the court should yet compel a conveyance to him on payment of this amount. What would he supineness in one man may not be in another under different circumstances. Lindsay, it is true, was at liberty to pay this money at any time, but it was not his interest to do so until he could demand a conveyance to himself. To put himself in this position he was active in pushing his mortgage against Green, and within a reasonable time after the sheriff’s deed, tendered the amount of Mcllvaine’s judgment. It was then positively declined. There is nothing in the case to lead to believe that if the tender had been made at any time after the appeal was dismissed in Mcllvaine v. Green, it would have been accepted, but much to induce the contrary opinion; and as Mcllvaine and those claiming under him had full knowledge of Lindsay’s claim, no one is injured by the delay. * * *</p> <p>“The master therefore reports that the court should enter a decree in accordance with the prayer of the plaintiff’s amended bill.”</p> <p>Exceptions were filed to this report.</p> <p>In making the decree, the court (Butler P. J.) said:—</p> <p>“ Being informed that the parties desire the judgment of the Supreme Court, we will confirm the report of the master at once, that they may not be subject to the delay which would result from our retaining the case even for a few days.”</p> <p>The final decree was that:—</p> <p>“ The plaintiff shall pay to the defendants the sum of $12,073.63, being the amount to which the sum awarded by the arbitrators in the case of Mcllvaine v. Green was reduced, with interest from February 23d 1871, the date of the award, until September 20th 1871, the date of the tender of the said money to the defendants ($416.52), making altogether the sum of $12,490.15, together with the costs of the case of Mcllvaine v. Green. And thereupon the defendants shall convey to the plaintiff all their estate, &c., in the factory and lot of ground in Chester, which they purchased from Samuel Blaisdell, being the premises described in the bill, and deliver him possession thereof, the plaintiff having relinquished all claim to mesne profits of the premises up to the date of this decree.”</p> <p>The defendants appealed, and assigned for error the allowance of the amendment to the bill and the final decree.</p>

121, to July Term 1870. The action in this case was debt, commenced November 18th, 1868, by Frederick Zimmerman and Frank L. Herdic, endorsees of E. W. Lowe, against Adam Rote. The action was founded on the following note, which was endorsed “ E. W. Lowe. ” §135.00 Township of_Ha^]sy,_Ma^eh^6_ 1868 Six months after date I promise to pay E. W. Lowe, or order One Hundred and.

<p>1. A testator by Ms will gave all Ms estate, “ except such reversions as I may hereafter make,” to Ms daughter Yenticia, appointed guardians for her and authorized them to spend the whole proceeds in her education. By a codicil he appointed his daughter Mary guardian of Venticia’s person, “to cake her in charge, attend to her education and see that she is well brought up.” By another codicil he ordered that Mary “ shall have her main support from the Shull farm.” Venticia by ejectment recovered the possession of the Shull farm from Mary. This was an acceptance of the devise and Venticia personally and the land became liable for the support of Mary according to the terms of the codicil. Per Junkiít, P. J.</p> <p>2. The estate which the testator owned at his death was much greater than the Shull farm, but was absorbed, except a small sum, in payment of his debts. Seld, that the amount to which Mary would otherwise have been entitled from Venticia as the owner of the Shull farm should be abated.</p>

251, to January Term 1872. This was a replevin issued April 24th 1871, by Jacob Detwiler against William K. Cox and George W. Dungan, for certain goods distrained for rent on premises leased by Cox to the plaintiff.

358, to January Term 1872. On the 25th of April 1868, a will of Dr. William Gibson was presented to the register of wills of' Philadelphia, admitted to probate and letters testamentary granted to John J. Reese one of the executors named in it. The following is the will:— “My last will and testament. Philadelphia, December 19th, 1867. — In the name of God, Amen.

885, to January Term 1872. In the estate of Howard Yardley, deceased. The decedent died in May 1868; his estate was devised and bequeathed to collateral relatives, he having left no children. His executors having settled their account, the balance appearing on it was referred to Edward Hopper, Esq., as auditor for distribution.

<p>Error to the District Court of Philadelphia: No. 1, to July Term 1872.</p> <p>This was an action of assumpsit brought to December Term 1868, of the court below, by Joshua Clendenon against Joseph Pancoast, to recover commissions, which the plaintiff alleged he had earned in negotiating the sale of real estate for the defendant.</p> <p>The plaintiff informed the plaintiff that he had some property to sell, and requested the plaintiff, who was a real estate broker, to sell it for him; he fixed the price at $13,000; the plaintiff took several persons to see the property, among the rest William Howell, who requested him to get a plan of the property. On going to the defendant for the plan, he said he would not sell, unless he got $17,000. Plaintiff informed Howell that the price had been raised to $17,000, and at Howell’s request he and plaintiff fixed a time to look at the property. Plaintiff afterwards called to see the defendant, who asked him if he had got a buyer ; plaintiff said he thought he had ; defendant then said, “ If your man will take it by Saturday be can have it, after this week I will not bind myself.” On Saturday Howell told plaintiff that he would take the property, and requested him to ask the defendant if he would take some mortgages on account of the purchase-money. Plaintiff went on the same day to defendant, and told him it was Howell who wished to purchase, and that he said he would like him to take some mortgages for part of the purchase-money ; the defendant replied, “ That lets me out, I won’t sell.” Plaintiff replied, “No, he only said he would like to give you the mortgages, if it suited you, but he will take the property anyhow, and pay you the cash, if you require it the defendant insisted that this let him out, saying, “ If you had said nothing about the mortgages, I was fast — I could not have helped myself.” Plaintiff said Howell agreed to take the property, and would take it, only said he would like to take the mortgages, if convenient; but defendant persisted in his refusal, and requested plaintiff to tell Howell and ask him “ to let him up.” Plaintiff told Howell who directed him to go to the defendant, and demand the papers; plaintiff did so, but defendant still refused.</p> <p>Howell testified corroborating the part of plaintiff’s statements of which he had knowledge, and also that he was prepared and willing to pay the whole purchase-money, “cash down.”</p> <p>The plaintiff here closed his evidence, and the court, on motion of the defendant’s counsel, directed a nonsuit.</p> <p>This was assigned for error by the plaintiff on the removal of the record to the Supreme Court.</p>

<p>Error to the Court of Common Pleas of Philadelphia: No. 97, to January Term 1873. The history of the case was:—</p> <p>On the 28th of September 1872, James O’Connor presented a petition to the Court of Common Pleas for a mandamus to Alexander McCuen, Thomas M. Locke and James Bain, commanding them to pay the petitioner certain costs, alleged to have been incurred on the trial of an indictment against A. H. Tack and othei’S.</p> <p>The indictment charged A. H. Tack et al. with a conspiracy in being oil brokers and dealers in oil and conspiring to defraud the prosecutor, their principal and the public, by illegal and fraudulent combinations and representations, to inflate excessively by cornering the oil market. April 14th 1868, the jury were called, and after a long and bitterly contested trial, of great notoriety in the oil trade, and with the public at large, the jury being unable to agree, were, April 23d 1868, discharged. Although the prosecution did not result in a conviction, it produced all the public benefit in breaking an attempted corner in that market on a gigantic scale, involving foreign as well as the home markets, in progress when the prosecution began, and also in so changing and settling the character of that trade that no combinations for corners were afterwards attempted in it, although it is in its nature peculiarly open to them, and had at the time of the prosecution, begun to be injured by them.</p> <p>Before the second trial, the parties in the case referred all the civil issues between them, arising out of the same transactions, for which a bill in equity and action on the case were pending, to the final arbitration of Judge Strong, and at the second trial the jury, with the consent of the prosecutor and of the district attorney, with the approval of the judge presiding at the trial, who presided at the former trial, on submission of the bill, rendered a verdict of not guilty, the county to pay the costs.</p> <p>The petitioner set out that at his prosecution an indictment was found at the March Term 1868, of the Court of Quarter Sessions at Philadelphia, against Augustus H. Tack and others for conspiracy; that upon the trial, April 23d 1865, the jury having informed the court that they could not agree, were discharged ; that on the 26th of January 1869, another jury was impannelled, and with the consent of the petitioner, as prosecutor, and the district attorney and with the approval of the judge presiding at the trial, upon submission of the indictment, the jury returned a verdict of “ not guilty, county to pay the costs.”</p> <p>That the Act of Assembly of March 31st 1860, sect. 62, 64, provides, “ in all cases of acquittals, by the petit jury, on indictments for the offences aforesaid (except felonies), the jury trying the same shall determine by their verdict, whether the county, or the prosecutor, or the defendant, shall pay the costs, or whether the same shall be apportioned between the prosecutor and the defendant, and in what proportions,” “ and the costs of prosecution accruing on bills of indictment charging the party with felony, shall, if said party be acquitted by the petit jury on the traverse of the same, be paid by the county.”</p> <p>That the Act of Assembly of May 3d 1856, sect. 5, relating to the duties of the city commissioners of the city of Philadelphia, provides, “that the city commissioners shall draw no warrants upon the City treasury for the payment of the fees of jurors, viewers, witnesses or officers of the courts, without a certificate of the prothonotary or clerk of the court, countersigned by one of the judges of the court in which the duty or service was performed, that the same is correct to the best of his belief, nor shall any warrant be drawn for jury or witness fees, in favor of any person but the juror or witness entitled to such fees.”</p> <p>That on notice to the District Attorney and his examination of the petitioner’s bill of costs in the prosecution, the petitioner caused the bill to be taxed by the clerk of the court on the 14th of October 1869, and the taxation was not appealed from; that the court ordered the clerk to certify this taxed hill to the city commissioners, Alexander McCuen, Thomas Locke, and James Bain, and the president judge of the court countersigned the certificate, which is as follows:—</p> <p>“ I hereby certify, that the foregoing is a true copy of the docket entries in the case there stated, as the same now remains of record in the office of the Court of Quarter Sessions, &c., for the city and county of Philadelphia, and that the foregoing taxed bill of costs for witness fees, due to the witnesses therein named, is correct, to the best of my belief, and that this certificate is made to the city commissioners of the city of Philadelphia, that they may, by refusal to draw warrants therefor, and upon a mandamus, upon the petition of said witnesses, or one of them, to compel the drawing of said warrants, determine the question whether under the law the jury in said cause were warranted in determining that the county should pay the costs of the prosecution.</p> <p>“ Witness my hand and the seal of said court, this 18th day of March, a. d. 1872.</p> <p>(Countersigned,) “J. P. Galton, Pro. Clerk. “Joseph Allison.”</p> <p>That the taxed bill of costs included a bill of costs of the petitioner for daily pay, &c., on behalf of the prosecution, amounting to $208.88, which is unpaid, but that the commissioners had refused to issue their warrant on the treasurer for its payment.</p> <p>The prayer was for a mandamus to the commissioners commanding them to draw their warrant on the treasurer for the payment of the petitioner’s bill.</p> <p>The commissioners answered that the indictment had been submitted to the petit jury by the District Attorney without offering any evidence, and “ there was in fact no trial of the indictment; that the prosecution was abandoned by the District Attorney, with the consent of the petitioner as prosecutor, by an agreement between him and the defendants, by which agreement all civil questions in dispute between them were referred to an arbitrator ; that the prosecutor, having filed his bill of costs, amounting to $2729.68, had the bill taxed, and applied to the Court of Quarter Sessions for an execution against the city, but the court refused to enter judgment <on the verdict and allow an execution to issue, which decree was removed to the Supreme Court and a judgment of non pros there entered, March 17th 1871. For these reasons, and upon the certificate to the bill of costs, the commissioners had refused to pay the bill of costs.”</p> <p>A rule was granted to show cause -why an alternative mandamus should not be issued, which was discharged October 12th 1872.</p> <p>The relator removed the record to the Supreme Court, and assigned for error the order discharging his rule.</p>

<p>1. A will provided : I give and bequeath to my beloved wife, Jane, one-third of all my personal property., and one-third part of all the income, rents, and use of my real estate. I do give and bequeath unto my son William France all the residue and remainder of my estate, real or personal. If the said William should not be living at my death, then in that case his children shall inherit my estate the same as their father would if living. I do nominate, &c., my said son William France executor, &c., and do hereby give my said executor full power to sell and convey any and all my real estate, that I may die seised of, the same as I could do if living. Held, that the wife took only a life estate in one-third of the realty.</p> <p>2. A devise of the rents, issues and profits of land is a devise of the land for so long as the rents, &e., are given.</p> <p>3. A technical meaning is to be given to a technical word in a will, unless there be clear evidence of a contrary intention.</p> <p>4. If the construction of a will be doubtful the construction is to be as conformably as possible to the general rules of inheritance.</p> <p>5. If a widow or family of a decedent pay his necessary funeral expenses without objection on the part of an executor his assent is presumed and the estate is liable for the payment.</p>

71, to July Term 1872. The proceeding in this case commenced in the Court of Common Pleas, January 3d 1872, by the following petition, &c.:— Thomas M. Montgomery, being duly sworn, deposes and says, that Joseph Perry purchased the premises situate, &c., in the city of Philadelphia, at sheriff’s sale December 16th 1871; subject to a mortgage-debt of fifteen hundred dollars; the said mortgage bearing date April 11th 1831, payable in lawful money of the United States of…

<p>Error to the District Court of Philadelphia: Of July Term 1872, No. 2.</p> <p>This was an action of assumpsit, brought November 5th 1870, by Charles J. Eastwick and Philip S. Eastwick, trading as East-wick & Brother, against William IT. Whitaker, Daniel Eocht and John Wadlinger, trading as W. H. Whitaker & Co., to recover back part of the price paid by the plaintiffs to the defendants for a cargo of coal, which the plaintiffs alleged was inferior in quality to the representations of the sellers.</p> <p>C. J. Eastwick, one of the plaintiffs, testified:—</p> <p>“ This coal when purchased was represented as a cargo of good coal and particularly well adapted for generating steam. We did not see the coal when we purchased it. The defendants were miners and shippers of coal. We bought the coal of them in Philadelphia, on the bill of lading. When we bought it, it was on board a canal-boat. We bought it deliverable at Schuylkill Haven. It had just been shipped when we bought it. The boat had just started on its way down. We bought the coal here on the bill of lading.”</p> <p>The plaintiffs’ counsel then offered to prove that the coal furnished had at least twenty per cent, of slate and dirt in it, and that it was unmerchantable and unmarketable.</p> <p>The defendants’ counsel objected to the offer because it was not accompanied by any offer to show fraud or warranty.</p> <p>The court (Thayer, J.) admitted the offer and sealed a bill of exceptions.</p> <p>The witness continued: “ I sold the coal with the same representations to Messrs. Crozer & Sons, of Chester. The coal was then lying in the canal of the Schuylkill Navigation Company. After it had reached the Crozers, I received a letter from them claiming a deduction. I had not seen the coal when they purchased. I saw it afterward, and it was full of dirt and slate. Chestnut coal is about the size of a horse chestnut. Crozer claimed a deduction of twenty per cent. It was not merchantable coal. I allowed it and notified the defendants, but they declined to make the allowance. I had paid the defendants before I discovered the defect. John Wadlinger is the miner, and he is one of the partners of defendants. It was mined and shipped by him, and sold to me by defendants. Mr. Whitaker admitted to me that there was other coal besides Wadlinger’s put in the cargo. I asked Whitaker if he had a good chestnut coal to sell. He said he had. He would sell me a cargo of Wadlinger’s coal. He gave me a price, which I think was $2.75 a ton at Schuylkill Haven. I then found a purchaser, and closed with Whitaker at $2.60 a ton. I asked him if it was good for steam purposes. He said he had sold a good deal of it for that purpose, and it was well adapted for it. What he said was that this kind of coal — John Wadlinger’s coal — was good for that purpose. I had bought Wadlinger’s coal before frequently and in large quantities, but never the chestnut size. I was acquainted with its quality. It was on account of my knowledge of the larger sizes that I placed confidence in his representations. The cargo was bought deliverable at Schuylkill Haven. I bought partially on my knowledge of the coal. He did not warrant the coal. He acknowledged that he knew other coal — a number of cars — were put into it. He and I ascertained that it was the screening out of dirt-banks. Good coal was then selling at $2.75 a ton. I bought at 15 cents less than a first-class price. I sold Crozer at $4.87 a ton delivered, equivalent to $2.75 a ton at Schuylkill Haven. I allowed Crozer twenty per cent, on $900.75, the amount of our bill.” * * *</p> <p>There was other evidence of the same character admitted under objection and exception.</p> <p>The verdict was for the plaintiffs for $112.01.</p> <p>The defendants took a writ of error, and assigned for error the admission of the evidence objected to.</p>

<p>1. Insolvency of a vendee of goods and his knowledge of it are not alone such, fraud as will set aside a sale and enable the vendor to rescind and replevy the goods after they have come fairly and fully into the possession of the vendee.</p> <p>2. To avoid the sale there must be artifice, trick or false pretence as a means of obtaining possession, bad faith and intent at the time to defraud the vendor.</p> <p>' 3. Insolvency and a knowledge of it at the time of the sale are evidence for the jury with other facts of intended fraud.</p> <p>4. The doctrine in New York on the question of rescission oh the ground of insolvency does not obtain in Pennsylvania.</p> <p>5. Evidence in this case not sufficient to go to the jury on the ground of fraud in the vendee.</p>

<p>Error to the District Court of Philadelphia: No. 12, to January Term 1874.</p> <p>This was an action of assumpsit commenced February 27th 1869, by Manuel McShain for the use of Patrick Mulhorn, against the Powelton Coal and Iron Cmpany. The declaration was in the common counts, for carrying goods : — The pleas were non assumpsit and payment with leave, &c., and set-off, under which notice of the special matter offered in evidence was given.</p> <p>The claim of plaintiff was freight on a cargo of coal carried for defendants from Philadelphia to Brooklyn, on the barge “ Mary T. Connolly. ”</p> <p>The plaintiff gave evidence by Patrick Mulhorn, captain of the barge, that tbe coal had been carried as claimed by plaintiff, that witness had demanded payment of the freight from the defendant as by order on the bill of lading and that they refused without giving any reason and also that half the barge belonged to the plaintiff and half to the witness.</p> <p>The plaintiff testified:—</p> <p>“ I signed a piece of paper, written out by Mr. Berwind (Vice-president of plaintiff) after I had entered upon the work. This is my signature tp the contract. This is not the contract under which I carried this coal. ”</p> <p>The plaintiff then made the following offer, to wit: — “ To prove that about the middle of July 1868, Mr. McShain and Mr. Berwind, acting for defendants, entered into a verbal contract for the transportation of coal from Philadelphia to New York; that it was agreed that ten thousand tons of coal should be shipped and furnished to Mr. McShain before October 1st 1868, and that the rate of freight '“should be $1.30 a ton; that McShain entered upon performance of this agreement and carried several hundred tons; that several weeks afterward Mr. Berwind wrote this paper of July 28th 1868, and presented it to Mr. McShain for his signature. Before signing, McShain called his attention to the fact that he had omitted to insert in the agreement the time within which the coal was to be furnished ; that Mr. Berwind said, ‘ Of course thatis understood, — I will furnish the ten thousand tons before the 1st of October, and could furnish five thousand more if it were necessary; ’ and thereupon Mr. McShain, with that understanding and upon that assurance, signed this paper. ”</p> <p>The defendants objected to the offer, it was admitted by the court and a bill of exceptions was sealed.</p> <p>The plaintiff said: “ On or about the 15th day of July 1868, Mr. Berwind called on me to ascertain at what rate I would transport ten thousand tons to New York. I inquired at what time he would want it transported. If it were summer I would take it lorver. If before 1st of October, $1.30 per ton. He agreed to give $1.30 a ton and to furnish the coal by that time. I sent boats as required till sometime in August, perhaps the 8th or 10th. In coming up the street there was a tap on the window of the Powelton Company’s office. I went in. Mr. Berwind showed me the paper. I was in a great hurry. I picked it up. I glanced over it and said, ‘ Mr. Berwind, this is all one-sided; it don’t mention that you will furnish the coal by the 1st of October. ’ He said, ‘ That is understood. We will not only furnish that, but we expect to furnish five or ten thousand m'ore by that time and ship it.’ I made answer that ‘If that is understood, I will sign it.’ At the time the paper was signed it had not the words at the bottom ‘ we accept, &c.’ After the 1st of October, freights kept advancing until the end of the season. In some cases as high as $2 were paid. Ten thousand tons were not furnished before October 1st. I called on them from time to time, urging them to give me coal. I sent my captains and vessels there demanding coal. I kept my vessels waiting for coal as long as eight or ten days at a time. Then I had to send my vessels away for other freight, charging them no demurrage. ”</p> <p>The plaintiff gave other evidence in corroboration of his own statements.</p> <p>The defendants gave in evidence this paper:—</p> <p>“ Philadelphia, July 28th 1868.</p> <p>To the Powelton Coal and Iron Co.,</p> <p>Gentlemen.: — I hereby agree to transport from Greenwich to New York, at such times as you may desire, ten thousand tons of coal for the sum of one hundred and thirty cents per two thousand two hundred and forty pounds.</p> <p>Very respectfully,</p> <p>Manuel McShain. ”</p> <p>“ Manuel McShain, Esq.,</p> <p>Dear Sir : — We hereby accept the above proposition.</p> <p>Powelton Coal and Iron Co.,</p> <p>Charles F. Berwind, Vice-President. ”</p> <p>Berwind testified: “In June 1868, our company desired to make arrangements to sell coal in New York. I consulted Mr. McShain regarding it, telling him that I wished to sell ten thousand tons in New York. I wanted to be secure, as we had to sell at a fixed rate. He telegraphed me that he would carry at $1.30, and he wrote to the same effect. Nothing was said about time. I agreed to sell to the Brooklyn Gaslight Company ten thousand tons of coal. It was not in writing. I then mentioned this to Mr. McShain, and he verbally agreed to carry it at $1.30 during the season. I subsequently put it in writing. The whole was written awaiting signatures.’ There was no verbal agreement at the time it was signed that it was to he carried before October 1st. The first I heard of any allegation in respect to time was some two or three months after. He sometimes complained about coal not coming fast enough, but the first specific allegation respecting the agreement was some time in November, and I think he then fixed the time as the 1st November.” He testified further in contradiction of McShain’s testimony.</p> <p>The defendants gave other evidence in contradiction of plaintiff’s evidence.</p> <p>They gave evidence also that the plaintiff had carried but 6468 tons of coal under his contract, and that the defendants had to charter other boats to carry the remainder at increased rates, from 25 to 40 cents per ton beyond the price agreed on with plaintiff.</p> <p>They also gave in evidence the bill of lading of the “ Mary T. Connelly,” by which the freight was made payable to the order of the plaintiff, and which by order endorsed was made payable to Mulhorn.</p> <p>The following points of the.defendants were denied:—</p> <p>1: The plaintiff cannot recover in this case, because he does not pretend that he complied with his entire agreement, and there .is no evidence of any employment of these boats by defendants except by and under the contract.</p> <p>2. The uncontradicted evidence in the cause being, and the plaintiff having testified and admitted, that the boats were loaded under the contract of July 28th 1868, the plaintiff cannot recover under the pleadings in this case.</p> <p>8. The freight claimed in this case having been made by the bills of lading payable to the order of Manuel McShain, and he having specially ordered the payment of said freight to other persons, and there being no other or further order by him, he cannot recover in this case.</p> <p>4. The evidence being that the “ Mary T. Connelly ” was jointly owned by Captain Mulhorn and Manuel McShain, the latter cannot, under the evidence, recover in this suit.</p> <p>The court charged: * * * “ The defence seems to rest upon two grounds. First, that the plaintiff is not entitled to recover upon the present pleadings; that it was his duty, in making his claim, to have declared upon the special contract which was made in July 1868 ; and that, having' neglected to do that, he cannot, in the present state of the pleadings, recover against the defendants.</p> <p>“ That is a good and valid objection to his recovery in this case, if you find that the coal was carried under the special contract of July 1868. [If you find that the plaintiff Mr. McShain carried these cargoes of coal under and in pursuance of the special contract of July 1868, whether under the verbal contract which has been referred to, and which preceded the written contract, or under that which was in writing, or the contract in writing as sought to be reformed by the plaintiff, then that is a fatal objection to the plaintiff’s recovery in this case, and your verdict ought to be for the defendants. If it was not carried under the special contract, then the objection is not well taken. I leave it to you to determine, as a question of fact, whether or not these cargoes were carried under the special contract made in July 1868.]</p> <p>“ The second point of defence is one which goes to the merits of the plaintiff’s claim, and it is that the plaintiff entered into a contract in July 1868, with the defendants, by which he hound himself to carry ten thousand tons of coal for the defendants when they might desire, at the price of $1.30 a ton freight; that he carried a part of the quantity which he stipulated in his contract to carry, but that he refused to carry the balance of the ten thousand tons; that the defendants were compelled to employ other boats at higher rates of freight than that which the plaintiff agreed to carry for, and were obliged to pay differences in freight, exceeding the freights which the plaintiff had agreed to carry them, by a sum which exceeds the amount of the plaintiff’s claim. Of course, I need not say to you that that is a perfectly good defence, if it is made out. * * *</p> <p>“Now, that is the most important point in the case, whether the plaintiff was bound to carry it or not. The contract in writing has been produced, signed by the plaintiff on the 28th of July 1868, by which it appears the plaintiff agreed to carry ten thousand tons of coal for the defendants, at such times as they, the ■defendants, might desire, at the price named, $1.30 a ton. If that contract is to be interpreted by its written terms, without any extraneous additions to it, it is perfectly plain that he was bound to carry this coal, as well as the rest which he had carried, at the same rate, viz.: $1.30.</p> <p>“ The plaintiff, however, alleges that the written agreement does not contain the whole contract. He says that the contract was at first a verbal contract — a contract not put in writing, and that by the terms of that contract he agreed to carry ten thousand tons, at the rate per ton mentioned, if the defendants would furnish it by the 1st of October, and that he did not agree to carry it at any time that they might ask him to carry it. That subsequently, when he was asked to sign the written paper drawn up by tlie vice-president of the company (that is, the written contract of the 28th of July), upon reading it over he remarked that it was all on one side, and that it did not mention that the defendants would furnish the coal by the 1st of October; that Mr. Berwind, the vice-president, then replied, ‘ That is understood, we will furnish that and ten thousand tons more besides, by that time;’ that the plaintiff then replied, ‘ W.ell, if that is understood, I will sign it,’ whereupon he signed it. [Now, if this limitation as to time was a part of the contract, and a material part of the contract as originally made, and if the plaintiff was, when his attention was called to the fact that this had been omitted from the written contract, induced to sign the written contract upon the faith of and trusting to the representations of Mr. Berwind, that it should be regarded as a part of the contract as much as if it were written in it, then it is to be so regarded.] * * * I instruct you that mere representations or remarks which did not enter into the contract are of course no part of the contract; but if by the terms of the original verbal contract it was agreed that all the ten thousand tons should be delivered to the plaintiff by the 1st of October, and if the plaintiff, when the verbal contract was put in writing on the 28th of July 1868, objected to sign it because it had not that stipulation in it, and was induced to sign it by the promise that it should be understood and considered as part of the contract, although not in the writing, then the stipulation referred to is to be considered as part of the contract, although it is not in the writing.</p> <p>“ Was this a condition of the original contract ?</p> <p>“ In determining this, the jury should be careful to discriminate between mere conversations and inducements held out while the parties were bargaining and the essential terms of the contract finally agreed upon between them. All the conversation is regarded as merged in the final agreement. That is to govern, and it is not to be controlled by prior conversations or remarks, or the expression of an expectation that the coal would be shipped before a certain time, would not qualify the contract or add that as a condition to it; but if that was agreed to, or as one of the terms or conditions of the contract, and was so understood by the parties, then and then only it was a part of the contract. * * *</p> <p>“Primfi facie the written agreement contains the whole contract. There must be very clear and satisfactory evidence to justify you in adding anything to it. But if you are perfectly satisfied by the evidence that it was a part of the original agreement that the plaintiff should furnish this coal to be carried (the whole of the ten thousand tons) by the 1st of October; and if you are clearly of opinion that the plaintiff was induced to sign the written paper which has been given in evidence by the representation of Mr. Berwind, that it should be understood to be a part of the contract; if, in a word, both of the parties understood the delivery of the coal by the 1st of October to be an essential part of the contract, and that it should be regarded as in the writing, although omitted, then it is a part of the contract, and the defendants were as much bound by that as the plaintiff was bound to carry the coal. If it was the contract that the defendants should furnish the coal by the 1st of October, of course the plaintiff was not bound to carry at the same rates after the 1st of October. Whether time is an essential part of the contract depends very much upon the agreement and the understanding of the parties, and is to be found by the jury like other facts. Ordinarily, time is not considered an essential part of a contract; but when the parties make it a part of the contract, and where its influence upon the contract is apparent, and the parties would be in a worse condition if it were not considered part of the contract, then it is proper to regard it as an essential part of the contract.</p> <p>“ [It appears to me if there was in the contract a condition that it should be delivered by the 1st of October — if the weight of the evidence is that that was an essential part of the contract — if that was the agreement (and I leave that as a question of fact for you, with the other facts in the case), then the defendants ought to have complied with the agreement.] Mr. MeShain, in contracting with the company, might, it seems to me, very well restrict his allegation to a certain time, taking into consideration the fact that after that time, as the fall and winter were approaching, freights would in all probability rise. If, therefore, you think it was a part of the original contract that the coal should he furnished by the 1st of October, and if you think that that was a material part of the contract, and that the- plaintiff was induced to sign the paper by a representation that it should be considered a part of the written contract, although it had been omitted from the paper, then he was not bound to carry the coal after the 1st of October at the same rates; and, in that view of it, the defendants would have no set-off at all, because their loss is not attributable to any fault of the plaintiff.' If, on the other hand, you shall find that the contract was not a contract with this condition as to time in it, or that what was said about the time of delivery -was a mere representation while the negotiation was proceeding, simply part of the conversation when the parties were bargaining about it, a mere expectation or inducement held out, and did not enter into the contract at the time it was agreed upon, then, of course, it would not form a part of the contract, and the plaintiff would be bound to carry at the same rates, and the defendants would be entitled to their set-off. The case, in its results, depends almost entirely upon the view which you shall take of this matter with regard to the time at which the coal should be furnished, and I think, according as you shall find that fact, your verdict in the case will probably 1)0.'fc H4</p> <p>The verdict was for the plaintiff for §269.75.</p> <p>The defendants took a writ of error.</p> <p>They assigned for error the admission of the evidence objected to; the denial of their points, and the parts of the charge in brackets.</p>

<p>1. Several trunks were transported by an express company and after re-/ retaining in their office for a considerable time an order of court under the Act of December 14th 1SG3 was obtained to sell them for freight, &e. Held, that this order did not protect the company for selling the trunks unopened and locked and without exposing the contents.</p> <p>2. The plaintiff testified as to the character and value of the contents of the trunk. Evidence that the plaintiff was a lady of wealth, &c., and that the goods described by her were such as are possessed by persons in similar circumstances in life, was admissible.</p> <p>3. An agreement by an agent of a corporation made in the course of the business intrusted to 'him is binding on the corporation although in excess of his instructions.</p> <p>4. Tanner v. Oil Creek Co., 3 P. F. Smith 411, recognised.</p>

<p>Error to the District Court of Philadelphia: No. 24, to July Term 1872.</p> <p>This was an action on the case brought August 31st 1871, by Jacob V. Long and Mary his wife against The Philadelphia and Reading Railroad Company. The cause of action was the alleged negligence of defendants’ servants, which resulted in the death of Rosanna Long, a child of the plaintiffs, who was run over by one of the defendants’ engines.</p> <p>The defendants’ road from Norristown to Philadelphia passes along Cresson street in Manayunk; the depot in Manayunk is at the intersection of Cresson street by Gay street; Cotton street crosses the railroad on Cresson street, and is 744 feet from Gay street in the direction of Philadelphia; between Gay and Cotton streets Levering and Grape streets cross the railroad, Grape street being nearest to Cotton street; from the station at Gay street toward Cotton street there is an up-grade of 32 feet to the mile, which is a “ stiff” grade for starting; the track is perfectly straight from the Gay street station to Cotton street. On the 10th of May 1871, the train from Norristown to Philadelphia, after leaving the Gay street depot, near Cotton street crossing, ran over the plaintiff’s child, who was about 25 months old; the train, including cárs, engine, &c., was 325 feet long; Cresson street is about 50 feet wide; the two tracks of the railroad are in its centre, and are together 16 feet wide. Each side of the street is built up with houses, and many people pass along the street going from Cotton street to the depot. The elevation of the railroad track is higher than the street curb, sloping to the curb on each side, and the road-bed is considerably higher than the sidewalks.</p> <p>Mary A. Long, plaintiff, testified : “ I live in Cresson street, between Cotton and Grape; when I saw the child she came and asked me for a piece of bread, and by that I went to do my housework and she went out, and the first thing I knew, she was run over; she was not more than a few minutes out of my sight,— about three or four minutes; * * * I did not notice the train pass; we live on the line of the railroad; * * * when I last saw my little girl I gave her a piece of bread and left her in the kitchen; she must have opened the back door and got out through the alley; my mother was in the house with me ; I did not notice her go out; I left her in the kitchen ; I went to scrub a piece of oil-cloth in the next room; * * * I was in the middle room; you could see from one to the other; I had not noticed her go out; I was by the hearth ; she got into the alley ; the side door goes right out into the alley; it was latched, but she opened it; she was in the kitchen-; I did not miss her at all; I did not know at that time whether she was in the kitchen or out in the street; she had been in the yard playing when she came in and asked me for a piece of bread.”</p> <p>Jacob Peterman testified: “ I was on the train which ran over the child; was on hind car on the hind platform of whole train; when I had got on it was going six or seven miles an hour; I am satisfied if I had been off I could not have got on; I heard the whistle blow ‘ down brakes ’ when the hind part of the train was crossing Grape street; at that time the front part of the train was about Cotton street; the hind car of the train was about half way across Cotton street when the train stopped; the train went a whole square; saw the child after the car passed over her ; it laid between the up and down tracks.” * * *</p> <p>Samuel A. Moore testified: “ The little child was in the middle of the crossing when I first saw her ; I saw the train coming; saw the locomotive strike her; I was coming from work; was coming out of an alley below Cresson street, running from Mechanic to Cotton streets; I stepped out of this alley into Cotton street below the railroad, and saw the child and the locomotive; the child had a piece of bread ; I heard the whistle while I was five yards in the alley, before I saw the child; she was walking when I first saw her; when I got to the opening of the alley the train was on her; saw the train when it stopped ; was about ten or fifteen feet below Cotton street; the hind end ; it was going pretty fast when I saw it; first heard the whistle before I got out of the alley into Cotton street; when I got out, I saw the child between the two tracks in the centre of Cotton street; don’t think she sat down ; it appeared as if she sat down; when I first saw her she was between the two tracks — the up and down tracks — and walking towards me; I then just saw the end of the locomotive; when I got eyes on the child, saw her walk on towards the other track; I just saw the cowcatcher then ; the child walked right towards the locomotive ; I thought she would sit down when the cow-catcher struck her; don’t say she sat down; she could walk, kind of ‘ trottling ’ along, when she was struck.” * * *</p> <p>John Nicholls testified: “I live in Cresson street, two doors above Cotton, other side from Mr. Long; was in the house at the time of the accident; three minutes before was at the corner; did not see the child when it was at the corner of Cotton and Cresson streets; saw nothing about the accident; heard whistle after the train passed; saw train from my window; I ran out and had the baby picked up; heard the whistle blow after the train passed the window; saw the cars pass, — going about eight miles an hour; Cresson street is always pretty well crowded — great many people walking and crossing it.” * * *</p> <p>Benjamin Levering testified: “ I was in the neighborhood, and had just passed the railroad track when I saw two children together on the upper side of the railroad; they were on the side of Mr. Long’s house; I crossed at Cotton street; saw the engine coming; saw it when it left the depot; the child was then on the upper side; I crossed and went up Cresson street when the train passed, and just as I turned round the child went on the track and the cow-catcher struck her; saw the train pass; saw the child struck ; the train was going over eight miles an hour; I can tell, for I have lived there all my life; the whistle blowed a few yards before it struck the child; could not say how many ; I was two or three doors above Cotton street.” * * *</p> <p>There was other evidence as to the circumstances of the accident, the speed at which the train was running, &c.</p> <p>For the defendants, F. IT. Wilson, superintendent of the railroad, testified, that a train starting from the depot under eighty pounds of steam could not attain a speed of eight miles an hour by the time it would reach Cotton street. “ Six miles an hour was the speed to which trains were restricted in going through Manayunk ; that is the speed now; there has been no change in this since we have had the road; trains ring the bolls continually from the time they enter Manayunk until they leave it; that is the mode of warning used; the whistle is used only for the purpose of stopping the train, in event of accident.” * * *</p> <p>Daniel Miller, the engineer, testified: * * * “ When I left Manayunk station had eighty pounds of steam, that is thirty pounds less than usual; I was on the right-hand side looking ahead ; I saw nothing at all; the fireman was ringing the bell; he hallooed me to stop ; he was ringing the bell as soon as the engine started ; I could not tell exactly where we were when the fireman hallooed me to stop; I had not seen anything on the track up to this time ; we were close to Cotton street; I whistled ‘ down brakes,’ reversed engine, and stopped as soon as I could; we went to the next crossing at Mechanic street; one square ; stopped within the length of the train ; I suppose the train was going five to six miles an hour; * * * can’t see from my side anything right in front of the engine, or on the other side, on account of the boiler; there is nothing to prevent me seeing whole track some distance in front of the engine; I was looking out at the time ; did not see the child; if the child had been on the track while we were at Grape street, could have seen the child from the side where I was; I could not see right in front of the locomotive, but can see five or six feet in front of it; if the child was standing on the other track, it would be about a half square before she would be shut out of view; the boiler would have shut her out; it is my duty to keep an eye on the track ; the fireman rings the bell and tends the fire, the engineer minds the track; he has nothing else to do; I did so on that day, from time we left the depot until the accident. The shortest distance ahead of the engine one could see a person, if on the other track, would be about one-half square — that is, one half way between Grape and Cotton streets; if a person was on the fireman’s side of the engine on our track, would be shut out within twenty or thirty feet from the engine ; I noticed the steam before I left station; we look at it there, because if the steam gets low we can’t get it up ; looked at it there, and saw it was eighty pounds ; we usually get one hundred and ten pounds there before we leave, if we have time to get it.”</p> <p>William Grady, the fireman, testified as the engineer as to the amount of steam, the rate of speed, &c. He also testified: “ As soon as we left the station I commenced to pull the bell; was ringing it all the way from the station ; kept ringing it all the way through Manayunk; we ring the bell always; when anybody is ahead on the track we whistle ; * * * when I first saw the child she was stepping on the track — on the left-hand or inside rail of our track — some five or six feet in front of the engine, as near as I could judge ; I turned to tell the engineer as soon as I saw it; he did not hear me at first; told him second time; he didn’t hear at first on account of the noise of the bell; as soon as he understood me he whistled and stopped ; we stopped on the next crossing, about two hundred feet off; it was impossible to have stopped sooner; when I saw the child step on the track it was impossible to have stopped the train; was engaged in ringing the bell all the way down and looking at the steam-gauge; I just happened to look out, and saw the child, for the first time, just as it was stepping in front of the track ; the engineer was looking out when I turned to tell him. ” * * *</p> <p>The conductor testified that he supposed the rate of speed was about five miles an hour.</p> <p>The defendants’ points, all of which were affirmed, were :—</p> <p>1. The mere fact of the child having been killed on the defendants’ railroad raises no presumption that her death was caused by negligence on the part of the defendants.</p> <p>2. The verdict must be for the defendants, unless the evidence clearly establishes that the death of the child was caused by want of ordinary care on the part of the agents of the defendants, in the management of the train, and that the parents of the child took all proper precautions for her safety.</p> <p>3. The men in charge of the train were not bound to anticipate that any person, either infant or adult, would cross the track immediately in front of the engine, and that the defendants are not responsible for an omission to provide against such a contingency.</p> <p>4. When an infant, less than two years and two months old, is suffered to wander on a railroad track, where trains are constantly passing, the parents of such an infant are guilty of negligence, which precludes their recovering damages for the death of the child by being accidentally run over by a passing train.</p> <p>5. Should the jury find for the plaintiffs, damages can be assessed only for the pecuniary loss which the evidence shows they have actually sustained, and that neither the bodily sufferings of the child nor the mental sufferings of the parents can be taken into consideration.</p> <p>The court further charged:—</p> <p>“ Upon these general principles you will consider the facts of the case. The foundation of this action is the negligence of the defendants. Without this no recovery could be had, even if this was a suit by the child for injury to it. [It is for you to say whether the defendants used such reasonable care and diligence as were required at that time and place.] Negligence is not to be presumed; it is for the plaintiffs to show it. On that subject you have some evidence in relation to the speed of the train; the discrepancy between the witnesses is not very great, it all runs from five to eight miles; Levering said it was about eight miles; the others between five and six miles; it is manifest the rate was between five and eight miles ; [it is for you to say whether that rate of speed was excessive, and whether, if excessive, it contributed to the accident;] if the rate of speed did not contribute to the accident, it was nor negligence.</p> <p>“ There were only two witnesses who saw the accident, Samuel Moore and Benjamin Levering. You will give particular attention to these two witnesses. * * * [Upon this testimony you will consider whether the negligence of the defendants caused the injury, or whether it was one of those unfortunate accidents which could not be prevented.] If the child was playing near the track, and from fright', or even from heedlessness, or any other motive, suddenly darted in front of the train, the defendants could not be required to foresee and provide against such a contingency. That is one of those misfortunes for which there is no remedy.</p> <p>“ The second inquiry to which you will direct your attention is, did the parents take such care of the child as the circumstances required ? The child appears to have been able to lift the latch of the door and go out; the law upon this point has been very strictly laid down, [and the fact that the child is found in the street affords a strong presumption of negligence on the part of the plaintiffs. You will therefore consider whether the mother took reasonable care of the child; if she did not it was negligence], and if you find the parents to have been negligent you must find for the defendants. That is a good defence to this action.”</p> <p>The verdict was for the plaintiffs for $1200. Upon the removal of the record to the Supreme Court by the defendants, they assigned for error the portions of the charge in brackets.</p>

<p>1. A bond under the Sheriff’s Interpleader Act is forfeited, if on the trial of the issue the plaintiff is nonsuited under the Act of April 14th 1846, for the non-appearance at the trial of himself or his counsel and the goods are not afterwards forthcoming.</p> <p>2. The issue is under the power of the court as other issues, and the plaintiffs can be compelled to try or submit to a nonsuit.</p> <p>3. The power of the court is not arbitrary, but of sound discretion, to be exercised in view of the circumstances.</p> <p>4. The nonsuit ends the particular issue and determines it in favor of the execution-creditor so far at least that the sheriff may sell the goods, without liability to an action of trespass.</p> <p>6. Whether the claimant’s right of property is finally barred by such non-suit not determined.</p>

<p>1. In contemplation of marriage and with the consent of the intended husband a woman acting under advice of counsel made a deed of settlement of all her estate, excepting a specified amount which she retained for her own use, the trustees to pay her the income for her separate use for life and after her death to convey the estate to her children according to testamentary appointment, excepting such provision for her husband as she might make by will out of the income; if she left no issue, then to convey to her sisters and brother or their issue as she might appoint; should she leave no will, half the income to go to the husband for life; and half for her children ; if she left no issue or leaving any they should die minors without issue, to convey the estate to her brother and sisters in fee; there was no power of revocation the settlement, nor did the wife at its execution understand that her power of appointment was restricted to her brother and sisters, but believed that if she survived her husband she could dispose of her estate as she pleased. She gave no instructions as to power of revocation or of genei-al testamentary disposition — there was “ total silence on the subject.” The wife survived the husband, who died leaving no issue of the marriage. Meld, that the absence of the power of revocation being under the circumstances a mistake, and the provisions after death of the husband being without consideration and the beneficiaries volunteer’s, the wife wa? entitled to relief in equity and it was decreed that the trustees should reconvey the trust estate to her.</p> <p>2. One may dispose of his property gratuitously, if not in prejudice of creditors, and, if with intention and knowledge of the act, it is ix’revocable in law and equity if power of revocation is not reserved.</p> <p>3. The mere omission of counsel to advise the insertion of a power of revocation is not ground to set aside a voluntary conveyance.</p> <p>• 4. The absence of the power of revocation in the deed and failure of counsel to advise it are circumstances with others to show that the act was not done with a deliberate will.</p> <p>5. Where the facts show that the deed was executed without advice or reflection or intention to bind after the reasons for executing it have passed, and the party is again sui juris, equity will relieve against'volunteers claiming without eonsidex’ation or a reasonable motiye for continuing the donor’s disability.</p> <p>6. The deliberate intention of a party to tie up his hands should clearly appear.</p> <p>7. In the absence of a certain intent to make the gift irrevocable — the omission of a power to revoke is primá. facie evidence of mistake, and casts the burden of supporting the settlement on volunteer claimants without consideration.</p> <p>8. In such case the mistake being one of fact mixed with the legal effect, equity will use the mistake of fact as a means of relief.</p> <p>9. Gross v. Leber, 11 Wright 520; Whelen’s Appeal, 20 P. R. Smith 410, recognised.</p>

<p>1. A corporation possesses no powers but those which are given by its charter either expressly or impliedly as necessary in strict furtherance of the objects of its creation.</p> <p>2. The charter of a corporation provided, that it should consist of not more than one hundred active members, and might bestow honorary membership on active members as they might think proper. Held, that the corporation could not create honorary members except from active members.</p> <p>3. A by-law authorized the election of “ contributing” members, in the same manner as “ active” members. Held, that the by-law was void.</p> <p>4. The power to elect members being incidental to a corporation, the power need not be expressed in the statute, but when the power is limited it cannot be exceeded by the by-laws.</p> <p>5. A legal member of a corporation cannot without notice be amoved for non-payment of dues.</p> <p>6. Commonwealth v. Penna. Beneficial Institution, 2 S. & R. 141; Commonwealth v. German Society, 3 Harris 251, recognised.</p>

<p>Error to the District Court of Philadelphia: No. 28, to July Term 1872.</p> <p>This was a libel filed January 27th 1870, by William M. Shakes-pear against the schooner “ Maggie Cain,” William Fisher and James H. Fisher, partners as William Fisher & Son, owners, and Andrew Scull, master.</p> <p>The libel was filed under the Act of June 13th 1826, Pamph. L. 616, 1 Br. Purd. 94.</p> <p>Sect. 1 provides that vessels of all kinds built, &e., vrithin this Commonwealth, shall be .subject to a lien for all debts contracted by the masters or owners thereof, for work or materials done or provided in building, &c., in preference to any other debt due from the owners.</p> <p>Sect. 2. The lien shall continue during the time between contracting the debt, and the time when the vessel shall proceed on her voyage, next after the work done or materials furnished.</p> <p>Sect. 3. The lien for work done and materials furnished, shall exist in favor of the following classes of tradesmen and mechanics, and no others, to wit: Carpenters, blacksmiths, mast-makers, boat-builders, block-makers, rope-makers, riggers, joiners, carvers, plumbers, painters, ship-chandlers, coppersmiths, brass-founders, coopers, venders of sail-cloth and lumber merchants.</p> <p>The libel set out that at “ sundry times” between December 1st 1868 and January 1st 1870, the libellant, at the request of William Fisher & Son, “ owners or reputed owners” of the new schooner to be called the “ Maggie Cain,” furnished at Philadelphia for building, &c., the schooner, lumber and materials, for which there were, still due $3016.12, according to a bill of particulars which was annexed to the libel; that the schooner, of which Andrew Schull was master, was then lying at Plum street wharf on the Delaware river, in Philadelphia, and was not completely finished, and had not proceeded on a voyage since the lumber, &c., had been furnished.</p> <p>On the same day the attachment -was issued; the sheriff returned that he had attached the vessel, and “ made known to the defendants.”</p> <p>Scull, “intervening for his own interest as master and part owner of schooner, and on behalf of the other owners,” answered:</p> <p>1. That he and thirteen others, naming them, were owners of the schooner, that no other person was an owner; the list of names did not include William Eisher & Son.</p> <p>2. That the libellant between the dates stated in the libel, at the instance of Fisher & Son, had furnished ship-timber, &c., to them; but he denied that the timber was furnished to be used especially in building the schooner, but that it was furnished on the personal credit of Fish.er & Son only.</p> <p>3. Admitting that the schooner had not proceeded on any voyage, he averred that the hull had been built for her present owner by Fisher & Son, and before filing the libel had been launched and delivered out of the possession of Fisher & Son into the sole possession of her present owners, who had previously paid Fisher & Son $14,000 as they had contracted to do, that being the full consideration-money due them; and neither the respondent, master, and part owner, nor the other owners, had ever purchased from the libellant lumber, &c., to be used in building the schooner.</p> <p>4. Not one-third of the lumber mentioned in the bill of particulars was used in building the schooner, but that the lumber was used by Fisher & Son about other vessels.</p> <p>5. That if libellant had a right of lien against the schooner he had waived it, by accepting promissory notes in full settlement of his claim from Fisher & Son, except about 7000 feet of plank.</p> <p>6. That the Act of June 13th 1836 is unconstitutional in attempting to confer admiralty jurisdiction upon the District Court of Philadelphia.</p> <p>The respondent further averred that when the timber was furnished to Fisher & Son, they were building the schooner for Lath-bury, Wickersham & Co., and for Andrew Scull and others, and that Fisher & Son had never been owners of the schooner.</p> <p>A replication was filed, and the case put at issue April 9th 1870.</p> <p>The building of the schooner was under a contract dated the 23d of December 1868, between Fisher & Son and Lath-bury, Wickersham & Co., by which Fisher & Son agreed that they would build a three-masted schooner for Lathbury, Wickersham & _ Co., according to specifications set out in the agreement, for $18,500 payable in instalments, as specified in the agreement.</p> <p>Lathbury, Wickersham & Co. being unable to meet their payments the contract Avas abandoned, and in or about the month of September 1869 the contract was rescinded, and Scull and the other parties for whom he intervened, entered into a contract with Fisher & Son “ to build and finish the hull of a three-masted schooner now in frame, in accordance with the specifications in the agreement, for the sum of $18,000, of which $6000 were to be paid when the contract was signed and the remainder in instalments,each upon the completion of a specified part of the vessel; $2000 of the remainder to be paid when the vessel should be finished.</p> <p>The cause was tried November 21st 1871, before Lynd, J.</p> <p>The plaintiff testified that the schooner was built at the yard of Fisher & Sons, in Kensington, and he furnished materials for her by directions of William Fisher; commenced in September 1868, until “we came to a stop about the middle of April;” the largest portion was furnished between December and April; he kept on furnishing until November 25th. He then testified as to the times when the timber was furnished, the quantity and the price during all the time. Fisher & Son had charge of the yard; he saw the timber Avhich he had furnished in the schooner. Fisher told plaintiff the schooner was for Lathbury, Wickersham & Co., but plaintiff’s dealings from the beginning to the end were with Fisher & Son.</p> <p>Plaintiff gave other evidence of the delivery of the lumber and admissions by Fisher that the lumber in the schooner had been furnished by plaintiff.</p> <p>The respondents admitted that the lumber had been ordered by Fisher & Son, but not on the credit of the schooner.</p> <p>For the respondents, William Fisher testified that his firm built the schooner in the first place for Lathbury, Wickersham & Co., under a contract Avhich was destroyed before Scull and the other subsequent contractors Avould enter into an agreement with the firm.</p> <p>Lathbury testified that, his firm having got into difficulty in the summer of 1869 had asked Fisher “to find other owners;” having found Scull and the others to take the vessel off Lathbury, Wickersham & Co.’s hands, the contract was rescinded, and at the time “ Andrew Scull and others took the vessel and made a payment, Fisher & Son did not release us until Scull and others had taken the vessel.” The building of the schooner had stopped some five or six weeks; the rescission was by mutual consent; “ Scull and others were to step into our shoes.”</p> <p>William Fisher, called again, testified that they did not finish for Lathbury, Wickersham & Co. They undertook to finish for Scull and others, who took the vessel in September 1869; and Fisher & Son then released Lathbury, Wickersham & Co. Scull and others paid Eisher & Son $6000 at the execution of their contract and the release of Lathbury, Wickersham & Co. Fisher & Son, besides the $6000, received from Scull $7218.62 on the schooner, which was in full to December 17th 1869, and they delivered the vessel on that day or the next to Scull; she had not then been attached; she went to another yard close by Fisher & Son’s to get her masts; she did not come back to Fisher & Son’s; she was finished at another wharf; witness was broken and could not finish her; he never purchased timber from plaintiff on. the credit of any vessel; he did not purchase timber differently from any other.</p> <p>Other witnesses testified that Fisher k Son had no interest in the schooner.</p> <p>The sixth point of the respondent was:—</p> <p>“ The Act of 13th June 1836, upon which this attachment is issued, is invalid, and your verdict must therefore be for the defendants.” This point was reserved.</p> <p>The eighth point was:—</p> <p>“ I instruct you, as matter of law, that as between the builders of a vessel and those for whom the vessel is built, the title to said vessel can pass without delivery, where it can be designated and ascertained, and is separated from other property.” This point was refused.</p> <p>The court charged: * * *</p> <p>“ The question in this cause, full of nicety, is the question of ownership. There is no doubt, under our Act of 1836, that a party who sells material must show that the contract was made with the master or owners of the vessel. These words have a technical signification. The owner is the man who gets a certificate and is registered as owner. Contracts for voyages are usually made by the master or owners. This, the defendants contend, is the meaning of the word ‘ owner ’ within the meaning of this act. As far as the question of law is concerned, I reserve it. [Without regard to my individual opinion I charge you that a person who contracts to build a vessel for others, at a price stated, whether payable by instalments or otherwise, and does build her at his own yard, is the owner within the meaning of the Act of 13th June 1836, upon which this proceeding is founded. Therefore, you will have no difficulty in finding your general verdict.] I shall ask you to find specially whether William Fisher k Son had, at the time they contracted for the lumber in question, any other possession, control or ownership of the vessel ‘Maggie Cain,’ than as builders of or contractors to build her for Lathbury, Wickersham k Co., and for Scull and others. If Lathbury, Wickersham k Co. abandoned to Scull and others, and not to William Fisher & Son, then they were still contractors. During the construction for Scull and others their position cannot be doubted. The evidence under this special finding that yon are requested to make,centres in the question of abandonment. To whom did Lathbury, Wickersham & Co. abandon the vessel ? * * *</p> <p>“ If there was a moment or a day of time after the abandonment before Scull came in, Fisher & Son were the owners. * * * As to the general verdict, if the timber was not furnished to William Fisher & Son on their right as OAvners, then your verdict should be for respondent. If on the credit of the vessel, Avas it used in the building of the vessel ? If not, your verdict must be for the defendant. It is not contended that a great deal of this timber did not go into the vessel. It is only for the value of what did go in that you can find for the plaintiff. Go on and find your general verdict, leaving out the question of ownership, then consider separately the special finding.”</p> <p>The verdict was for plaintiff, for $3373.01. “ The jury find no ownership by William Fisher & Son in the schooner ‘ Maggie Cain ’ at the time the lumber was contracted for with William M. Shakespear, but we do find an ownership by them in said vessel during the interval that ensued between the abandonment of ownership by Lathbury, Wickersham & Co., and the sale to Andrew Scull and George Fisher and others.”</p> <p>On motion of the plaintiff, the court amended the special finding so as to read:—</p> <p>“ The jury find no ownership other than as builders, by William Fisher & Son in the schooner ‘Maggie Cain,’ at the time the lumber was contracted for with William M. Shakespear; but we do find an ownership other than as builders by them in said vessel during the interval that ensued between the abandonment of ownership by Lathbury, Wickersham & Co., and the sale to Andrew Scull and others.”</p> <p>The court then entered judgment for the libellant as follows:—</p> <p>“And now, March 16th 1872, it appearing to the court that the demand of the libellant has been duly found by the verdict of the jury, judgment is entered upon the said verdict of the jury, and upon the point reserved at the trial, and it is further ordered, adjudged and decreed that the said William M. Shakespear, the libellant, do recover of the said respondents and the said Andrew Scull and his sureties in the bond filed in this cause, the sum of three thousand three hundred and seventy-three dollars and one cent, Avith interest thereon from the twenty-third day of November, A. D. 1871, together with his reasonable costs and charges by him in and about his said suit in that behalf expended.”</p> <p>The respondents took a writ of error, and assigned for error :—</p> <p>1. The part of the charge in brackets.</p> <p>2. Refusing their 8th point.</p> <p>4, 5. Not entering judgment for the respondents, and entering judgment for the libellant on the special finding.</p> <p>6. Amending the special finding.</p> <p>7. Entering judgment for the libellant on the plaintiffs’ 6th point, which was reserved.</p> <p>J. W. Ooulston, for plaintiffs in error. — Those who contract to build a vessel for others are not owners within the Act of 1836 : Harper v. New Brig, Gilpin’s Rep. 540 ; Smith v. Eastern R. R., 1 Curtis 0. C. R. 260; Hubbell v. Denison, 20 Wendell 181; Childs v. The Brunette, 16 Missouri 518. The title to the schooner passed to the respondents when they took the place of Lathbury & Co.; — the vessel was clearly ascertained and designated: 2 Kent’s Com. 692 ; Hutchinson v. Hunter, 7 Barr 145; Haldeman v. Duncan, 1 P. F. Smith 66.</p> <p>The Act of 1836 is in conflict with sect. 9th of Act of Congress of September 24th 1789, 1 Bright. U. S. Dig. 24, pi. 1, giving to the District Court of the United States exclusive cognisance of civil causes of admiralty and maritime jurisdiction: The Moses Taylor, 4 Wallace 411; Hiñe v. Trevor, Id. 556 ; The Belfast, 7 Id. 624; The Josephine, 39 New York 19; The General Smith, 4 Wheaton 438.</p>

<p>1. A testator gave two-tenths of his estate to two trustees (by name) or the survivor; — the trustees were also his executors, — in trust to pay the income to a daughter for life for her separate use, or permit her to take the income herself for her separate use, and at her decease to assign the estate according to her will, or for want of a will to her children, he authorized his “ executors or the survivor of them" to sell his real estate and invest the proceeds together with moneys from his personal estate in real estate, public funds or put at interest on real security or in bank or other stocks, &c., and if one of his executors should be absent from the United States, the conveyance made by the other executor to pass a good title. The testator owned stock in the defendants’ company, part of which was marked as belonging to the daughters’ trust. The trustees having died, two others were appointed, aud subsequently Vezin, Lorenz and Gerhard were appointed in their stead, Lorenz changed his residence to Europe, and made general power of attorney to Vezin and another to collect, &c., “ any and all" income from the trust, “ and to call in, sell or change any or all stocks or loans,” &c., and transfer them, &c. McMurtrie was appointed in place of Gerhard, who had died. Vezin, as trustee and as attorney for Lorenz, afterwards transferred stock in defendants’ company. Held, that the power was such a delegation of a discretion as could not be made and the transfer was invalid.</p> <p>2. There can be no delegation of a discretion. Per Paxson, J.</p> <p>3. A trustee may delegate amere ministerial duty. Id.</p> <p>4. A ratification of the principal after the sale and transfer had been made by the attorney would have validated it. Id.</p>

<p>1. On a question of partnership a witness testified that it expired in February ; evidence that he had. stated at other times, although not in the presence of the plaintiff, that it expired in January, was admissible to contradict him.</p> <p>2. The credit of a witness may be impeached by proving that he has made out of court statements different from those to which he testified.</p> <p>3. A partnership to expire in January appointed an attorney to “ buy and sell goods, sign notes and perform all acts concerning the businessif the</p> <p>Elaintiff had notice at the beginning of the partnership of the time of ending, e could not charge the firm with goods sold to the attorney after the expiration.</p> <p>4. The dissolution of the partnership, whenever it took place, revoked the power of attorney, and the attorney afterwards had no authority to give notes in the settling up of the firm.</p> <p>5. The attorney testified that he exercised no power but under the letter of attorney; he afterwards testified that he had power to wind up the firm after dissolution. Evidence was admissible in contradiction, that he had no power of attorney after the dissolution of the firm.</p>

<p>1. A vessel ran into’ a net laid in a private fishery in a navigable stream and damaged it. Held, that the captain was liable, if upon being warned he could have changed his course without prejudice to the reasonable prosecution of his voyage.</p> <p>2. What would be a reasonable prosecution of a voyage depended upon the attendant circumstances.</p> <p>3. A vessel may hold her course in a navigable stream without regard to a fisherman’s net, if the master act without wantonness or malice and do no unnecessary damage.</p> <p>4. Fishery is an acknowledged right, but is subordinate to the rights of navigation.</p> <p>5. Wantonness is reckless sport, wilfully unrestrained action, running immoderately into excess.</p> <p>6. Tinieum Fishing Oo. v. Carter, 11 P. F. Smith 21, referred to on the law of fisheries.</p>

<p>Error to the District Court of Philadelphia: No. 61, to July Term 1872.</p> <p>This was an action of debt on an auctioneer’s official bond, brought to the March Term 1871 of the court below by the Commonwealth to the use of W. B. Hackenburg against Thomas H. Martin, Henry M. Daly and John Daly.</p> <p>The bond was dated June 17th 1868 ; it was as follows:—</p> <p>“ Know all men by these presents: That we, Thomas H. Martin, John Daly and Henry M. Daly, are held and firmly bound unto the Commonwealth of Pennsylvania in the sum of $3000, lawful money, to be paid to the said Commonwealth, &e. * * *</p> <p>• ‘ Whereas, the said Thomas H. Martin has applied to the governor of this Commonwealth, to be appointed an auctioneer to make sales by auction, according to law, at any convenient place in the city of Philadelphia. The condition of this obligation is such, that if the above bounden Thomas H. Martin shall and does, well, truly and faithfully perform all the duties of an auctioneer, and pay all duties and taxes which may become due to the state, in consequence of his exercising the trade or occupation of an auctioneer, to the state treasurer; and shall from time to time faithfully account for and pay over to the authority aforesaid all public moneys which shall come to his hands during the period he shall continue to act as an auctioneer under the commission that may be granted to him, and accruing to the Commonwealth by reason of any duties and taxes that now are, or may be hereafter imposed on sales at auction, well and faithfully observing and performing the terms of payment, and all the duties required of him as an auctioneer directed and required by law, then the obligation to be void,” &c.</p> <p>.The Act of April 2d 1822, sect. 1, 7 Smith’s L. 593, provided, that upon a citizen of Pennsylvania, resident in Philadelphia, giving bond as therein provided, the governor shall issue to him a commission to make sales by auction according to law for the term of one year, his bond to be renewed every three years.</p> <p>Sect. 2, 1 Br. Purd. 105, pi. 15, provided, “for each succeeding year during which the holder of any commission shall continue to exercise the business of auctioneer, he shall pay in advance to the state treasurer a like sum to that which he paid in obtaining said commission,” &c.</p> <p>By the Act of 9th of April 1859, Pamph. L. 435, 1 Br. Purd. 102, &c., auctioneers in Philadelphia were distributed into five classes, each to give bond in different sums according to the amount of their sales respectively.</p> <p>The 12th section of this act, 1 Br. Purd. 105, pi. 12, enacted, that all former auction laws, or parts of law’s, relating to auctions and auctioneers in Philadelphia, conflicting with' the provisions of this act be and the same are hereby repealed.</p> <p>A commission, dated July 18th 1868, was issued to Martin, viz.:</p> <p>“ Reposing especial trust and confidence, &c., I have appointed you, the said Thomas H. Martin, to be an auctioneer of the fourth class, in and for the city of Philadelphia, to make sales by auction, &c. * * * You are therefore, by these presents, appointed and commissioned to be an auctioneer as aforesaid. To have and to hold the said office of auctioneer, together with all the rights, &c., for the term of one year, to be computed from the day of the date hereof, unless this appointment and commission shall be by me or other lawful authority superseded or annulled.”</p> <p>The cause was tried December 19th 1871, before Mitchell, J.</p> <p>Under objection and exception by the defendants W. B. Hackenburg testified that he had known Martin as an auctioneer for five or six years; his last place of business was704 Chestnut street; previously to that his place of business was in Chestnut street below Sixth. Whilst he was auctioneer witness had employed him to sell goods for him ; Martin sold the goods and witness received part of the money; there was a balance of $903.41 due him which he never had received.</p> <p>The court charged:—</p> <p>“ That the evidence was sufficient if they believed it to prove the facts necessary for a recovery by the plaintiff, and that if they believed the evidence they should find a verdict for the plaintiff for the amount claimed.”</p> <p>The verdict was for the Commonwealth for $3000 and for Hackenburg for $945.90.</p> <p>The defendants took out a writ of error and assigned for error the admission of Hackenburg’s testimony and the charge of the court.</p>

<p>Appeal from the Register’s Court of Philadelphia: No. 45, to July Term 1872. In the matter of the probate, &c., of the will of Eliza C. Wickersham, deceased.</p> <p>On the 13th of September 1871, Morris S. Wickersham, by his attorney, Samuel Hood, Esq., filed with the register of wills, &c., of Philadelphia, a caveat to the will of Eliza C. Wickersham, deceased. On the 28th of the same month, a paper writing purporting to be the will of Eliza C. Wickersham, was presented to the register for probate. On that day the testimony of the subscribing witnesses was taken.</p> <p>The testimony of the subscribing witnesses was further taken by the register on different days, from October 3d 1871, to November 20th 1871. On the 20th of December 1871, Morris S. Wickersham and Samuel M. Wickersham filed their request in writing that the register would appoint a Register’s Court. Testimony of the subscribing witnesses Ayas afterAYards taken on cross-examination from time to time, until January 31st 1872, when the register declined to hear any more testimony of the subscribing witnesses.</p> <p>On the 2d of February 1872, the register delivered the following opinion and decree:—</p> <p>* * * “ The request for a precept to the Court of Common Pleas, directing an issue to be formed for the purpose before mentioned, is not complied with, because there is no conflict of evidence before the register, and he is clear in his opinion that the court would not permit a verdict against the will to stand upon the testimony before him; they would not permit a judgment to be signed upon such a verdict if rendered, and it would therefore be improper to put the estate and the parties in interest to the expense of a trial, which in his opinion would be without results. Having disposed of the application, it only remains to determine the question of the admission or rejection of the said paper"writing to probate, which the register proceeds to do by the entry of the following decree: ‘ And now, it is ordered and decreed that the said paper writing be and is hereby admitted to probate as the last will and testament of Eliza C. Wickersham, deceased, and that letters testamentary be granted thereon to Cadwalader Wicker-sham, the executor therein named.’ ”</p> <p>On February 2d 1872, Morris S. Wickersham and Samuel M. Wickersham appealed from the decree of the register to the Register’s Court, and gave notice to the register not to grant letters testamentary to Cadwalader Wickersham until the decision of the Register’s Court has been made in the matter of the appeal.</p> <p>On the 4th of May 1872, the Register’s Court “ordered that the order and decree of the register of wills, entered by him on the 2d day of February 1872, be set aside, and the letters testamentary then granted to Cadwalader Wickersham be revoked; that all acts and orders made by the register in said matter, after the request made by the caveator of the register to appoint a Register’s Court, are vacated and set aside; that the register forthwith appoint a Register’s Court.”</p> <p>Cadwalader Wickersham appealed to the Supreme Court, and assigned for error—</p> <p>1. The revoking of the letters testamentary issued by the register to him.</p> <p>2. Not dismissing the caveator’s appeal from the register.</p>

<p>Appeal from the Register’s Court of Philadelphia: No. 84, to July Term 1872.</p> <p>The proceedings in this case were upon admitting to probate a paper writing, dated September 2d, 1859, purporting to be the will of Sophia De Haven, deceased, and also another dated April 2d 1861, a codicil to the will.</p> <p>On the 31st of May 1869, the register admitted these papers to be proved, and issued letters testamentary to Emma D. Hampton and Hugh De Haven, Jr., the executors named in the will.</p> <p>On the 2d of June 1869, Hugh De Haven and Charles E. De Haven, sons of the decedent, appealed from the decree of the register.</p> <p>The appellants, after their appeal, presented a petition to the Register’s Court, representing that they had appealed and “ that in said appeal and the proceedings thereon a dispute upon a matter of fact has arisen, viz.: whether the said paper writings were the last will and testament of said Sophia De Haven; and your petitioners allege that said paper writings are not her last will and testament, for two reasons, viz.:—</p> <p>“1. That she was not of sufficient legal capacity at the time of the execution of said paper writings, or either of 'them, to make a valid will and testament.</p> <p>“2. Because she was induced to make said paper writings by the undue influence of her daughter, Mrs. Emma D. Hampton, to whom, in and by said paper writing, property was devised and bequeathed largely in excess of what was devised and bequeathed to her brothers, the appellants. Your petitioners therefore pray the court to direct a precept for an issue to the Court of Common Pleas for the city and county of Philadelphia, for the trial of said disputed matter of fact.”</p> <p>The Register’s Court appointed an examiner, who took a large amount of testimony on the questions of fact raised by the petition for the issue.</p> <p>After the coming in of the examiner’s report, the Register’s Court, May 11th 1872, refused the issue and dismissed the appeal.</p> <p>Hugh De Haven and Charles E. De Haven appealed to the Supreme Court, and assigned for error:—</p> <p>1. The court erred in refusing the issue prayed for.</p> <p>2. The court erred in deciding, in effect, that there was no sufficient evidence to be left to the jury on the questions of testamentary capacity and undue influence.</p> <p>3. The court erred in deciding, in effect, that there was no evidence on which the jury could decide against the validity of the paper writings alleged to be’ the last will and testament of said Sophia De Haven on the issue devisavit vel non.</p> <p>4. The court erred in dismissing the appeal.</p>

113. This was a proceeding under the Act of April 3d 1830 (Landlord and Tenant), Pamph. L. 181, 2 Br. Purd. 882; commenced before an alderman of Philadelphia, by Catharine Mcllwain, executrix and devisee, &c., of James Rafferty landlord,, and as agent of M. A. Kane,against Patrick McDermott.

<p>1. A lease was/or a year, either party might determine the lease at the end of the term by giving a month’s previous notice to the other. A surety for the lessee gave due notice to the lessor to collect the rent from the lessee and that he would not be bound beyond the end of the current year, the lessee held over, the surety died before the end of the succeeding year. Held, that his estate was not liable for rent during that year.</p> <p>2. It was inequitable to the surety to continue the tenant for another year after the notice.</p> <p>3. Equity often relieves a surety when the principal would not be relieved.</p> <p>4. A surety cannot at will discharge himself from his contract.</p> <p>5. Coeu. Vogdes, 21 P. F. Smith 383, distinguished.</p>

71, to January Term 1870. This was an action on the case brought February 17th 1869, by William B. Elliott against the city of Philadelphia, for the arrest by her police officers of the plaintiff’s… Held: that municipal corporations are liable for the neglect of their agents, in not doing what it was the duty of the corporation by law to do, and in doing that amiss which the corporation was authorized or enjoined by law to do.

No. 10, to January Term 1873. In Equity. The bill was filed, November 17th 1872, by Elizabeth Dallas Tucker against Dallas Saunders, her trustee, to obtain a decree for the reconveyance to her of her estate conveyed in trust to the defendant by deed dated June 26th 1869 from herself and husband and David H. Tucker. The plaintiff and Mr. Tucker were intermarried in 1841, and the husband died March 17th 1871.

<p>Certiorari to the Court of Quarter Sessions of Philadelphia: No. 131, to July Term 1872. In the matter of Cambria Street.</p> <p>On the 4th of February 1871, the Fair Hill Land Company presented to the Court of Quarter Sessions a petition, setting out that under resolutions of the Councils of Philadelphia, the Commissioner of Highways had notified “ the owners of property through which Cambria Street will pass from Second Street to Sixth Street” -and “from Sixth Street to Tenth Street,” that said street would be required for public use; that petitioners owned ground which would be taken by the opening of that street, and that they would sustain damages thereby. They prayed the court to appoint viewers to assess damages, &c.</p> <p>The petition was signed, “J. T. Pratt, Attorney,” and was sworn to by George E. Wagner, Secretary of the Company.</p> <p>Viewers were appointed, who- reported :—</p> <p>* * * “ That pursuant to notice all the undersigned (with the exception of William Dingas), together with Jacob Shinglaff, met at the office of the City Solicitor, on Friday March 31st 1871, at 8 o’clock, p. M. At this meeting the jury being sworn and examined on their voire dire were all found competent except Jacob Shinglaff who being already upon another jury for the opening of Clearfield street was found to be disqualified; the other jurors were then each severally sworn or affirmed to the faithful discharge of their duties, the petition having first been read to them. The jury then adjourned to meet, &c. * * * Pursuant to which adjournment the jurors met at the time and place last mentioned and proceeded to view going over the whole line of the street from Second to Tenth street, all the jurors being' present as well as' William Dingas, who had since the last meeting of the jurors been appointed a juror or viewer by the Honorable Court in the place of Jacob' Shinglaff disqualified. After view the jurors adjourned to meet at the office of the City Solicitor, &c., April 13th 1871,_al_ \vhich time and glace all the jurors,met,.when WiUiam^Dijjga^afqre^^ saicTwas sworn and" examined on his.,voire dire,, and,being, found qualified jo__serve was sworn to the faithful discharge of his duty by Alderman Delaney, by whom the oath or affirmation had. been_prpviously administered to .all of the other jurors, the. petition_having_ been first read in t.ha hearing of all. Proof of service of notice on álTthe owners of property along the line oUthe sff|AtV-W.as_made at 'thidineetingj William'W. Ashman, Esq., appeared on behalf of the city. No other parties appearing the jurors adjourned to meet at the same place at 3 o’clock, P. M., April 20th 1871, at which time and place the jury met, all the jurors being present, as also * * * Joseph C. Ferguson, Esq., for Messrs. Kelley and Eagin, tenants-of Isaac Norris, * * and also at the subsequent meetings by the same counsel, and by Isaac Norris, Esq., who appeared for himself and as attorney for George W. Norris, and * * * by Henry Norris.</p> <p>“ The jurors continued to meet at the last-mentioned place, by adjournment from time to time, to wit, &e.,. * * * At the last meeting, July 20th, proof of service of notice on all parties upon whom damages had been assessed was made except on the representatives of the estate of Charles Norris, deceased. I^ac_NoiXÍs-).Esq,.Ji appeared in response to said notices for himself,.George W. Norria.andHenryNoms., and a"ddressed the jury concerning their award of damages.., Atjffiis meeting'the jurors were all present and adjourned to meet, &c., * * * on Thursday, August 3d 1871, at the last-mentioned place in order that notice might be served on the representative of said estate, Lewis 0. Norris, at which said time and place all the jurors met with the exception of Alexander Johnson, and having heard the proof of said services of notices, after signing this report adjourned. * * * After due deliberation and consideration of the advantages and disadvantages, &c., do award the following named parties entitled to damages, &c., that is to say: To Michael Simons the sum of three hundred dollars; to Joseph S. Toland the sum of three hundred dollars, and the jury do further say that none of the other owners or tenants of property on the line of the street will be damaged by the opening of the same, and therefore no damages are awarded to any one excepting as hereinbefore stated. And the jury do further report, that of the damages above awarded the sum of one hundred and fifty dollars shall be paid by the city of Philadelphia, and the sum of four hundred and fifty dollars shall be paid by the property-owners on fhe line of the street who are benefited thereby. And the jury do further report, that each of the following described properties be assessed to the amount hereinafter set forth, as being benefited by reason of said opening of the street aforesaid.”</p> <p>They then assessed damages in specific sums on five designated lots, belonging severally to Isaac Norris, George W. Norris, Henry' Norris and the estate of Charles Norris, deceased.</p> <p>.The report was signed by Rowland A. Stokes, William DingUs,1 Francis Jennings, Alex. Johnson, Joseph H. Sutton, F. Fishey.</p> <p>The Norrises filed exceptions to the report; amongst others the following:—</p> <p>1. Because William Dingas was substituted as a juror in the stead of Jacob Shinglaff, originally appointed, without any legal cause of disqualification existing, or being assigned, to said Shinglaff.</p> <p>2. Because it appears, by the report, that said Dingas viewed the premises before being sworn;</p> <p>3. Because the jurors were not sworn or affirmed according to ( law, in this, the report stating they were sworn or affirmed, “each severally to the faithful performance of their duty,” whereas, by law, they are required to “ swear or affirm to perform their duties impartially and according to the best of their judgment.”</p> <p>5. Because the petition is not signed by any one authorized to sign, or having any interest as landowner.</p> <p>9. Thatjhe report had not been made and filed in court before the owners, of properties, against which damages were assessed, were notified, according to the requisitions'of .the Act of Assembly.</p> <p>' The court decreed :—</p> <p>“ The third exception filed by Norris estate is sustained and the report is set aside and referred back to the same: the other exceptions are all dismissed.”</p> <p>The viewers again reported:—</p> <p>“We, the undersigned, the jurors appointed by your Honors to assess the damages sustained by property-holders in consequence of the opening of Cambria street from Second to Tenth streets, reconvened by order of your Honor’s court for the purpose of reporting more fully as to the manner they were sworn, do, this 11th day of April, A. D. 1872, certify that before entering upon their duties as jurors in the above matter, they were separately sworn to perform their duties impartially and according to the best of their judgment, in accordance with the Acts of Assembly in such cases made and provided; the said acts being read at the-time and the said oaths administered in accordance therewith.”</p> <p>The report was signed by the same names.</p> <p>On this report the court made the following decree :—</p> <p>“ 1872, June 26th. The above order is amended so as to make it read ‘ The third exception filed by Norris estate is sustained and the report is referred back to the same jury to report upon said third exception ; the other exceptions are all dismissed.’ No die, report of jury, as amended, confirmed.”</p> <p>The 53d sect, of the Act of June 13th 1836, Pamph. L. 559, 2 Br. Purd. 1203, pi. 87, enacts: “ That all viewers shall before they proceed to the duties of their appointment respectively make oath, &c., to perform the same impartially and according to the best of their judgment,” &c.</p> <p>The Norrises removed the record tnthe Supreme Court by certiorari and assigned for error that the court overruled their exceptions ; specifying them as in the court below.</p>

<p>Before Agnew, C. J., Williams, Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.</p> <p>Error to the Court of Common Pleas of Philadelphia: No. 159, to January Term 1873.</p> <p>These were proceedings under the Landlord and Tenant Act of March 21st 1772, 1 Smith’s L. 373, 2 Br. Purd. 879, pi. 17, &c., by Nelson Gavit against Mary Hall.</p> <p>The complaint was as follows:—</p> <p>“ To David Beitler and Robert R. Smith, two of the aldermen in and for the city of Philadelphia, the complaint of Nelson</p> <p>Gavit by A. F. Blair, Agent, most respectfully sets forth: — •</p> <p>“ That he is owner of a certain tenement with the appertenances, situate No. 1419 Race street, in the city of Philadelphia, and was in possession thereof August 1st 1871, when he demised the said premises to a certain Mary Hall for the full term of one year from August 1st 1871, at rent of $41.67 per month, which said term is fully ended.</p> <p>“ The said Nelson Gavit being desirous upon the determination of the said term to have again and repossess'his said estate, for that purpose he did on the 16th day of April 1872, last past, demand and require the said Mary Hall to remove from and leave the same, and that the said Mary Hall hath hitherto refused and still doth refuse to comply therewith; that three months having elapsed since the service of the said notice he makes this complaint, that such proceedings may be taken by you as are directed by the Act of Assembly in such case made and provided.</p> <p>Nelson Gavit,</p> <p>Per A. F. Blair, Agent.</p> <p>“ Sworn before us, this 6th day of August, A. D. 1872.</p> <p>[seal [seal David Beitler, Alderman. Robert R. Smith, Alderman.”</p> <p>A warrant was issued to the sheriff by the alderman, tested the 12th of August 1872 : it recited the complaint and commanded him to summon twelve substantial freeholders,” to be at a place named in the warrant, and also to summon the said Mary Hall to appear before the alderman and the freeholders, &c., to show cause why possession of the demised premises should not be delivered to the complainant.</p> <p>The sheriff returned:—</p> <p>“ In obedience to the within writ I have summoned twelve substantial'freeholders of my bailiwick to be and appear at the time and place within named, and I have also summoned the defendant, Mary Hall, by giving a true copy of the within writ to her.”</p> <p>The inquisition was:—</p> <p>“ Inquisition taken at, &c., * * * before David Beitler, Esq., and Robert R. Smith, Esq., two of our aldermen in and for the city of Philadelphia, by the-oaths of William Yogdes (and eleven others, naming them), twelve substantial freeholders of the said city, who, &c., say that Nelson Gavit was on the first day of August, in the year one thousand eight hundred and seventy-one, quietly and peaceably possessed of a certain tenement, &c. (as in the complaint), and did demise the said premises to a certain Mary Hall for the term of one year from August 1st 1871, then next ensuing, at the monthly rent of $41.67 per month, and that the said Mary Hall by virtue of the said demise entered, &c., and that the said term for which the said premises were demised is fully ended; and the said Nelson Gavit, &c., did on the sixteenth day of April 1872, demand of and require the said Mary Hall to remove from and leave the same at the expiration of her said term, and that the said Mary Hall has hitherto refused and still does refuse to comply with the said demand and requisition to remove from and leave the said premises, and the said freeholders do assess damages against the said Mary Hall for the unjust detention of the said demised premises, at one hundred dollars besides all costs of suit. Whereupon it is considered by the said aldermen that restitution of the said demised premises be made to the said Nelson Gavit, and that he recover of the said Mary Hall one hundred dollars damages aforesaid, together with the costs of suit, amounting to forty-five dollars.”</p> <p>The record set out the complaint, the warrant, September 12th 1872, to the sheriff, and that by virtue of the warrant the sheriff returned that he had summoned twelve substantial freeholders (named in the record and being the same as in the inquisition) and Mary Hall, “ and the said freeholders being called appear and are severally sworn or afiirmed, and the said defendant, Mary Hall, also appears ; Nelson Gavit, plaintiff, sworn ; lease dated August 1st 1870 produced, offered in evidence by plaintiff; lease objected to by defendant. A. E. Blair, sworn, plaintiff; lease admitted in evidence; Quentin Todd, sworn, plaintiff; notice dated April 16th 1872 produced, offered in evidence by plaintiff and admitted ; A. F. Blair recalled plaintiff; we, the said aldermen and the aforesaid freeholders, after proceeding to hear and examine the proofs and allegations offered by the said parties, do find that the said Nelson Gavit, on the first day of August 1871, was quietly and peaceably possessed of a certain tenement and appertenances situate,” &c., (as in the complaint and inquisition), “and that the said Mary Hall has hitherto refused and still does refuse to comply with the said demand and requisition to remove from and leave the said premises. And the said freeholders assess the sum of one hundred dollars for the damages of the said Nelson Gavit, occasioned by the unjust detention of the said premises. Therefore it is considered and adjudged by us, the said aldermen, that the said Nelson Gavit shall and do recover and have of the said Mary Hall as well the said sum of one hundred dollars for his damages aforesaid, as forty-five dollars for his reasonable costs, by him expended in and about this suit in this behalf, concerning which the premises aforesaid we do make this our record.”</p> <p>The defendants removed the proceedings before the aldermen and inquest into the Court of Common Pleas by certiorari, August 23d 1872.</p> <p>The exceptions were:—</p> <p>1. The complaint was not made on due proof, not having been sworn to either byn Gavit or Blair his agent.</p> <p>2. There is a variance between the-sheriff’s return and the record of the aldermen. The sheriff’s return states that he summoned twelve freeholders, but does not name them. The aider-men’s record sets forth “that the sheriff had returned that by virtue of the warrant to him directed he had summoned twelve substantial freeholders, to wit” (naming, them).</p> <p>3. The jurors do not aver in their inquisition that they were selected by the shei’iff.</p> <p>4. The inquisition of the justices and freeholders does not aver that the parties were heard or neglected to appear, nor does it state how they became possessed of the alleged facts therein stated.</p> <p>5. There is a variance between the warrant to the sheriff and the record of the aldermen — the warrant being tested the 12th day of August 1872, and the aldermen’s record stating that it was tested the 12th day of September 1872.</p> <p>6. There is a variance between the whole record and the evidence as set forth in the aldermen’s record; the evidence shows the lease to be dated August 1st 1870, while the complaint, inquisition, warrant and record set forth that the landlord was in possession of the premises August 1st 1871, and on that day demised them to the tenant.</p> <p>7. The aldermen and the freeholders had no jurisdiction of the case under the Act of 21st March 1772, the same having been repealed by the Act of 14th December 1863.</p> <p>The Court of Common Pleas reversed the judgment of the aldermen.</p> <p>The plaintiff removed the record -to the Supreme Court, and assigned the reversal of the judgment for error.</p>

<p>Error to the District Court of Philadelphia: No. 142, to July Term 1872.</p> <p>This was an action on tbe case, brought November 15th 1871, by Robert Bruce Hassard, by his father and next friend, Peter J. Hassard, against The Philadelphia City Passenger Railway Company.</p> <p>The cause of action set out in the declaration was that by the negligence of the defendants in carrying the plaintiff, a lad of ten years of age and a passenger on their cars, he fell from the car, the wheels of which passed over his leg, which was so injured as to require its amputation.</p> <p>The case was tried April 5th 1872.</p> <p>The plaintiff testified that he and a younger brother and sister got into one of the defendant’s cars on Walnut street east of Broad street; as soon as they got in his sister and brother got seats at the rear end of the car, plaintiff then was standing at the front end of the car :• after some time, a passenger left his seat about the middle of the car and plaintiff took it. There were not very many people in the car when they got in, but about Broad street it began to fill up and was very full after that; there .were several persons standing in the aisle and persons standing on the platform; where plaintiff was, he'could not see his brother and sister, because the car was so crowded by persons both sitting and standing. When the car got to Twenty-first street, he glanced out of the window and saw his brother and sister getting out of the ear from the rear platform, he tried to get out at that platform but could not; the car was crowded; he went to the front platform on which were five or six persons on the side on which he was to get off; he told the driver to stop; the driver said “All right,” and slackened up but did not stop; he slackened up with the reins, not with the brake: plaintiff found that they were going too far and jumped off, he slipped on a pile of bricks and the car wheel went over his aníde; there was no fender or guard around the front platform. There was other evidence in corroboration of the substantial statements of the plaintiff; also, that these children were in the habit of going to school in West Philadelphia in the cars of the defendants without being in the charge of any one ; also, that when the boy found his brother and sister were out of the car he manifested great eagerness to leave the car in the quickest way possible, and avoid any obstructions that might be in his way; also that there was no notice about the ca,r that passengers were not allowed to get on or off at the front platform and that the door to the front platform was open.</p> <p>The defendants gave evidence that the car made a full stop at Twenty-first street, a short distance from the place of the accident; it stopped so long that a lady and gentleman and the younger children got off in safety ; that there always had been notices on the outside of each end of their cars and on the side, that passengers were not permitted to get on or off from the front platform; also, that the driver, as to stopping, acts by the ringing of the bell by the conductor ; that the plaintiff was not prevented from getting off at the rear platform by reason of the crowd on it and in the car, but that he got off from the front platform by reason of his eagerness to leave the ear in the quickest way when he found that his brother and sister had left it. There was other evidence in contradiction of the statements of the plaintiff and generally in answer to his case. They gave evidence also that the driver slacked up because he was going down grade, and that he did not hear the plaintiff ask him to stop.</p> <p>There was also much evidence on both sides as to the different railway passenger cars having fenders on the front platform.</p> <p>Points were submitted by both parties, which with their answers are hereafter stated.</p> <p>The court charged * * * “ Your duty is carefully to analyze the testimony; to extract from it what is called evidence. The evidence is the facts to be gleaned from the testimony, and after you shall ascertain the facts, then apply the principles of law as I have laid them down to you. I will, in order that there be no misunderstanding, repeat them. Negligence is the essence of this action, and before the company can be held responsible, the plaintiff must show that the company so negligently carried him that he was thrown from the car and run over. But where contributory negligence is proved, negligence on the part of the defendants alone, is not sufficient to warrant a verdict. He who asks a verdict of another must come into court with his hands clean of negligence on his own part; and, therefore, it must be made apparent to you that there was negligence on the part of the company, and no negligence whatever on the part of the plaintiff. But with regard to a child of his years, the rule of law as established by the supreme tribunal of this Commonwealth, is just that degree or standard of care which would actuate a boy of his years and. intelligence under similar circumstances. The law does not require of a boy that degree of care that is exacted of a grown-up person. It does require of him just that degree of care, prudence and discretion that his years have given him, and nothing more; and when this company received this boy upon their car, they took him as he was, they took him with his youthful indiscretion, if he had youthful indiscretion; they took him with his caution and his prudence, if he had them; whatever was known to be in other boys of his age of ordinary care, they were bound to notice; and if greater prudence and discretion than that exercised by this boy upon this occasion, would characterize the conduct of other boys of his age under similar circumstances, then the company is not to be held responsible, because of the rashness and impulsiveness of this boy in springing from his seat, rushing by the driver and jumping from the car whilst it was in motion. * * *</p> <p>“ Did this company act with ordinary care ? The rules of the company, as you have them before you in evidence, are that the driver obeys the signal-bell of the conductor. Indeed, we .all know in this community that his duty is to watch his horses in order to prevent colliding with passing vehicles at street intersections, or to prevent running down pedestrians or foot-passengers; he has no charge of the passengers in the car; his duty is to obey the conductor. The passengers are under the control of the conductor. The duty of the conductor is to obey the signal of those on the sidewalk who desire him to stop his car to get in ; to stop it a sufficient length of time to permit passengers to enter and to be comfortably seated; to stop it when a passenger inside shall give a signal for that purpose, a sufficient length of time to enable the passenger to make his exit to the pavement free, so that the car when it starts will not touch him, or disturb or trip him or throw him. * * *</p> <p>“Some of the witnesses say that the boy also obtained a seat, and afterwards removed to the upper end of the car. They remained comfortably and securely protected within the car until they reached the intersection of Twenty-first and Walnut streets.</p> <p>“ There is no evidence, it seems to me, to warrant the conclusion that the employees of the road did not, up to this point, act with ordinary, nay, more, with commendable care. The signal is given at Twenty-first and Walnut streets to the conductor to stop; he does stop; one lady, if not more, alights; the two younger children also alight; that being the terminus of their route or trip upon that day, so far as the car was concerned.</p> <p>“ Now I draw your attention to this fact, because it seems to me that it has some bearing upon this question. Two younger children in company with this boy, and as between the three it would seem he should stand protector and guardian to these children. The two younger children leave the car at Twenty-first and Walnut streets (they having been securely protected and carried to that point in a proper way); by means of the rear platform reach the pavement in perfect safety. It is some evidence to show that the company carefully carried them to that point, and carried also this boy to that point. It is some evidence for your consideration to show that as these children of younger years were discreet enough to deport themselves properly, and properly find their exit by means of the rear platform, where danger is least to be apprehended, whether this lad, that is the plaintiff-suitor before you, should not have done so also.</p> <p>“ One of the witnesses tells us that the conductor stopped until no other person desired to alight. He rang the bell and started. Another witness says the car had got under headway, but no more than under headway, when this boy started, looked to the rear end and then to the front, as if trying to discern which way he could make the quickest exit, or from which end he could make the quickest exit, and rushed by the driver and jumped from the platform.”</p> <p>The judge then referred to other evidence in the case, and proceeded:—</p> <p>“ Now these are the facts and the principal facts, as it seems to me, in the case. It is necessary for me to review so much of the testimony as to give point to the legal propositions that I have laid down.</p> <p>“ Now, then, you will consider, in view of these younger children being safely carried, and this elder brother being safely carried to that point, and these younger children being safely deposited upon the pavement, whether the company, so far as the driver and the conductor were concerned, was guilty of any negligence. If negligence there was, it seems to me it lies in not knowing what was the exact standard of intelligence and discretion of this young boy; and it seems to me it must, after all, turn upon that one question. If he had arrived at such an age that he ought to have known better, as ascertained from the action and conduct of boys of his age of ordinary care, there was no actual negligence upon the part of the company under such circumstances. But if from his age he was not required to exercise a greater degree of care and prudence than he did, then the company were bound to notice that, and to guard this boy from the perils that inhere in tender years; then it was their duty to close the front door, or to put some one with him, whereby in his youthful impulse he could have been prevented from doing that which resulted in so terrible an accident to him. Therefore I say it seems to me that the question turns almost exclusively upon that question.</p> <p>“ Much has been said about fenders. That question with all others will come before you — but I will not say to you- as a matter of law that it is necessary for a street car, where the common custom is to enter from the rear and to depart from the rear, to have a fender around the front platform; and you may consider this testimony with other testimony, whether it was required as an act of prudence to protect passengers. I am bound to say to you, however, as a matter of law, that the best known practical improvement in use the company are bound to adopt, in order to insure and protect the lives and limbs of their passengers. This applies with peculiar force to carriers of passengers. * * *</p> <p>“ I have sufficiently referred to what I consider the material points of the case as disclosed by the testimony, in order to enable you to understand the legal propositions as I have laid them down; and if from them you are of the opinion, that in view of this boy’s age, this company has been guilty of negligence, then he is entitled to recover. If you are of opinion in view of his age, and what other boys of his age would have done, that the company were not guilty of negligence, but that the boy himself was guilty of negligence, then in that event this company should have the verdict. * * *</p> <p>“ I am asked by the plaintiff’s counsel to say to you:—</p> <p>“ 5. If you believe the injury in question was caused by the negligence of the defendants or their employees, in not having the improvements aforesaid, or otherwise, and the injured child had not capacity to appreciate the danger and avoid it, so far as any act on his part contributed to the injury, that incapacity shields him from responsibility for any act of his contributing to the injury, although such act would have been contributory negligence in an adult, defeating his recovery, and your verdict should be for the plaintiff.</p> <p>“ Answer. I will affirm that point. If this boy had not capacity enough, as ascertained by the test that I have given you, namely, that degree of intelligence, discretion, and prudence that should characterize boys of his age of ordinary caution, then the boy is not to be held responsible for this absence or the want of it. The law does not exact of the child impossibilities, any more than it exacts of this company impossibilities.</p> <p>“ 7. If you believe the injured boy in leaving the car at the time of the injury in question, acted according to the habitual impulse of a child of his age, under all the circumstances, and the defendants were guilty of negligence in any of the modes aforesaid, or otherwise, and the injury resulted therefrom, your verdict must be for the plaintiff.</p> <p>“I affirm that point.</p> <p>“ The defendants have asked me to charge:—</p> <p>“1. That if the jury believe from the evidence that the plaintiff by negligence on his part contributed to the accident, the verdict should be for the defendants.</p> <p>“ That is so, provided the boy had reached those years of discretion that should have taught him better. If under the -charge I have given you, you find that he ought not to have done so, the doing it under these circumstances defeats his right of recovery.</p> <p>“2. That if the jury believe from the evidence that the plaintiff attempted to get off the car while it was in motion, and in consequence of such act on his part the accident occurred, the verdict must be for the defendant.</p> <p>“ I answer this point exactly as I answered the preceding one. That if the boy’s age and discretion was such as to teach him that he should not do so, then he ought not to have done so, and in doing so he contributes to the accident, and that contributory act of his defeats his right to recover.</p> <p>“ 3. That if the jury believe from the evidence that the accident occurred from a mere act of thoughtlesness of the plaintiff in attempting to jump from the ear while it was moving, the verdict must be for the defendants.</p> <p>“ My answer to this is substantially what it has been to the preceding. If his years were such as to warrant this degree of thoughtlessness that characterized his conduct, he is not responsible, because the law does not exact more from a child of his age than the common action of children of his age leads us to believe he was possessed.</p> <p>“ 4. That if the jury believe from the evidence that the defendants were using their car in the usual and ordinary way, and the accident happened solely by the plaintiff attempting to get off the car from the front platform while the car was in motion, the verdict must be for the defendants.</p> <p>“That is to receive the same qualification. If the little fellow knew better; if he should have known better ; if he did otherwise than boys of his age would have done of ordinary care, then this proposition is right.</p> <p>“ 5. That if the jury find from the evidence that the plaintiff was a passenger on the car, then the law of the contract between him and the defendants bound him to observe all the reasonable regulations of the company as to the mode of leaving the cars; and if the jury find from the evidence that a rule of the company requires all passengers to get off the car at the back platform, and that by reason of the plaintiff’s neglect to observe that rule the accident occurred, the verdict must be for the defendants.</p> <p>“ An adult making a contract with a minor, especially if the child contracts with him according to his standard of intelligence, there cannot be entire mutuality, and the only degree of fulfilment that can be exacted of the child is the best possible prudence, knowledge and discretion that the child has, as ascertained by that prudence, discretion and intelligence characterizing the conduct of boys of such age of ordinary care.</p> <p>“ 6. That if the jury believe from the evidence that the plaintiff was not seen by the driver or conductor when he jumped off the front platform, and that neither of them could have prevented the accident, then the verdict must be for the defendants.</p> <p>“ Yes; unless this boy’s age should have told them that it was un- ’ safe to leave him with the front door open without some one to take care of him; unless his age, his discretion was such as to convince them that he ought to have found his exit as his brother and sister did, by the rear platform^ I have already referred to his younger brother and sister leaving the car from the rear platform. It is some evidence to my mind that he ought to have done likewise, but that is entirely for you.</p> <p>“ 7. That the defendants were not guilty of negligence by reason of having the front platform open or unenclosed at its sides.</p> <p>“ As that is stated briefly, and for the purpose of having the thing settled by the court in banc, I will affirm that proposition absolutely.</p> <p>“ 8. That if the jury believe, that from the evidence that the plaintiff was of sufficient discretion to understand the dangerous character of the act which resulted in the accident, then if by such act he contributed to the accident, he cannot recover, and the verdict must be for the defendants.</p> <p>“ I affirm that absolutely.</p> <p>“ 9. That if the jury believe from the evidence that the plaintiff was possessed of sufficient discretion to understand the dangerous character of the act he was doing, in attempting to get off the front platform of the car while it was in motion, and that by so attempting to get off the car he contributed to his own misfortune, then the rule of law which precludes an adult from recovering, where by his negligence he has contributed to his own injury, is applicable to this plaintiff, and the verdict must be for the defendants.</p> <p>“ I affirm that proposition.</p> <p>“ 10. That there is no sufficient evidence of negligence on the part of the defendants to entitle the plaintiff to recover in this suit, and the verdict must be for the defendants.</p> <p>“ I decline to affirm that, and leave the question for your determination under the evidence.”</p> <p>The verdict was for the plaintiff for $3000.</p> <p>The defendants took out a writ of error and assigned for error : 1-2. The answers to the plaintiff’s 5th and 7th points.</p> <p>3-9. The answers to the defendant’s 1st, 2d, 3d, 4th, 5th, 6th and 10th points.</p>

<p>1. A policy of insurance required notice of loss by fire to he given to the secretary “ forthwith.” Held, that the rule meant due diligence under all the circumstances, and eighteen days’ notice was not in this case sufficient.</p> <p>2. A local agent has not authority to receive the notice and is not bound to communicate it to the company.</p> <p>3. Trask v. State F. & M. Ins. Co., 5 Casey 198, a ruling case.</p>

<p>1. Under the Act of April 10th 1848, it is not necessary to a sheriff’s interpleader that there should have been an actual levy.</p> <p>2. The claimant having possession of the goods has no right to insist that there shall be a levy.</p> <p>3. By an issue formed to try the right to the property under the order of the court, questions as to the sheriff’s right to relief, are concluded by the order, and the trial is upon the issue awarded.</p>

<p>Error to the Court of Common Pleas of Schuylkill county; Of January Term 1872, No. 332.</p> <p>In the court below this was a scire facias on a mechanic’s lien, issued by George Martz against the St. Clair Coal Company, February 6th 1867.</p> <p>The lien was filed under the Act of February 17th 1858, sect. 1, Pamph. L. 29, 2 Br. Purd. 1029, pi. 23. By this act the provisions of Mechanics’ Lien Law of June 16th 1836 are extended to all improvements, &c., “ erected or put up by tenants of leased estates on lands of others in the counties of Luzerne and Schuylkill, &c., provided that the lien, &c., shall extend only to the interest of the tenants or lessee therein and to the improvements, engines, pumps, machinery, screens, and fixtures erected,” &c.</p> <p>The company, defendants, were lessees of a right to mine coal on the lands of Carey, Hart and others in Schuylkill county.</p> <p>The plaintiff as architect filed his claim February 5th 1867, “for $500 against all the right, title and interest of the St. Clair Coal Company of, in and to all that certain improvement, machinery and fixtures, which are parts of and make together the erection known as the St. Clair Shaft Colliery, situate on lands of Henry C. Carey, &e., partly in the borough of St. Clair and partly in the township of New Castle, county of Schuylkill, and containing four hundred acres more or less. The said colliery and lands having been leased by a certain Ell Hart from the said Henry C. Carey, &c., by article of agreement made and concluded the seventeenth day of March, A. D. 1862, for mining purposes.</p> <p>“ The said lease embraces two certain veins of coal, known, &e., and includes also the right to mine and carry away coal from the veins of coal on a certain triangle or gore of land, known as the Lee lands, and which adjoins the first described tract. The time of said lease being twenty years from the date thereof, which said lease or articles of agreement, the said Ell Hart, by writing under his hand and seal, dated the 29th day of March, A. D. 1864, sold, transferred and assigned, and all his right, title and interest in the property, estate and term of years created and vested in him thereby, with the appertenances, to the St. Olair Coal Company. The breaker of the said St. Clair Shaft Colliery being of frame, and in length sixty-eight feet and in width in front ninety-four and a half, and in height eighty-four feet. Said colliery contains one two-hundred horse power pumping engine, one forty-horse power breaker engine, and one eighty-horse power hoisting engine with boilers, and all the necessary machinery attached, and the said George Martz files this his claim, against the said breaker building, as well as against the engines, machinery and fixtures thereon or connected therewith, and also against all the right, title and interest of the said St. Clair Coal Company in the said leasehold estate, as well as against all the machinery, improvements, slope railroads, fixtures and appertenances connected therewith, and necessary to the use and enjoyment of said leasehold estate and premises aforesaid.</p> <p>“ The amount claimed by the said George Martz as aforesaid is due for the erection of a patent improvement in hoisting and dumping coal to said breaker of the said St. Clair Shaft Colliery, and for superintending the erection of said improvement, from the 11th day of July, A. d. 1866, to the 11th day of November, A. d. 1866. The statement hereto annexed sets forth the nature and kind of improvement erected as aforesaid, with the work and labor done, at the instance and request of the said St. Clair Coal Company. The said patent improvement was granted to the said George Martz by the United States of America, by letters patent, dated the 13th day of October, A. D. 1866, and numbered 59,243.”</p> <p>The statement was as is set out in the lien.</p> <p>The pleas were “ nul tiel record,” “payment with leave,” and “ set-off.”</p> <p>The case was tried June 19th 1871, before Ryon, P. J.</p> <p>The plaintiff testified that the agent of the defendants asked ■him what he charged for his patent; he said $500. He told plaintiff to go and take his plans to Allison and Bannan, and have them build it. They built it under plaintiff’s superintendence. On the demand of payment by plaintiff, the agent refused to pay him anything-except for his services.</p> <p>He gave evidence also of the grant of the patent to him, and other evidence in support of his case.</p> <p>The defendants gave evidence in contradiction of the plaintiff’s testimony.</p> <p>The defendants’ points were:—</p> <p>1. This lien is filed against the St. Clair Shaft Colliery and four hundred acres of land, &c., * * as well as a shaft and a slope and a lease for a term of years of the right to work portions of the “ Seven Foot” and “ Big White Ash” veins of coal, while the tract is not demised, and was intended to be a claim for work done and materials furnished to a lessee for a term of years; that the alleged work done and materials furnished was upon a mere part of the hoisting arrangements at the shaft, and the lien as claimed, therefore, upon all the machinery, fixtures and improvements, known as the St. Clair Shaft Colliery, and upon a leasehold estate of a four hundred acre tract of land, is null and void, and there can be no recovery in this suit.</p> <p>2. The lien filed does not set forth the nature and kind of the work done and amount of materials furnished. It is for both, but does not specify how much for either, and is therefore void.</p> <p>3. It does not describe the building-or erection for which the work was done and materials furnished with precision, so as to identify it or distinguish it from any of the numerous buildings or erections that constituted said colliery, and is therefore void.</p> <p>4. It does not show whether the alleged patented improvement was placed in a new erection, or whether it of itself constituted a new erection, or whether it is for repairs, alterations or additions in or to old erections or buildings, or new ones, and is therefore void.</p> <p>5. The value of a patent right, or license to use the same, is not the subject of a mechanic’s lien, and the demand for which this claim is filed is not lienable.</p> <p>6. The lien is filed “for erecting a patent improvement in hoisting and dumping coal and for work and labor done in superintending the erection of said improvement; whereas it appears that the alleged patent improvement was erected or constructed by Allison & Bannan, and that all the plaintiff did was the superintending of its erection, or placing it at the shaft, and there is no evidence to show how much each part was worth.</p> <p>7. The plaintiff having sought to recover as upon a special contract, he must file his claim for work done and material furnished according to the special contract as proved; that here his own testimony is that his contract was in part for drawings and superintending the erection and construction of the alleged improvements by Allison & Bannan, whereas his claim as filed is in part for the very work done by Allison & Bannan, and the claim filed is not therefore according to the special contract, as proved by the plaintiff himself.</p> <p>8. Upon the whole case, the verdict of the jury must be for the defendants.</p> <p>The court charged:—</p> <p>* * * “ [Now, for the purposes of this case, we shall say to you that the lien is sufficiently descriptive upon its face, and sets out with sufficient certainty the nature and kind of work and materials, and the specification of the building upon which the same was done and performed.] The questions involving this question we will reserve.</p> <p>“ The plaintiff claims to recover upon a special contract. * * * Upon the other hand, the defendant claims that there was no contract for the use of this patent. * * * If the plaintiff recovers at all, he must do so upon this specific contract. [If you should believe Mr. Martz and others, and find from the whole evidence that there was a specific agreement by which the plaintiff was to have and the defendants agreed to pay the $500 for the use of the patent and Martz’s superintendence in putting it up, the plaintiff should recover.]</p> <p>“ If, upon the other hand, you believe the testimony of Mr. Kendrick, that he made no contract by which the defendants were to pay $500 for the patent and the superintendence, and that no specific sum was agreed upon at the time this work was performed, &c., then the plaintiff is not entitled to recover.</p> <p>“Again, you must be satisfied from the evidence that the building in lien filed is the same building proved as the one in which these cages were put and the work and labor of the plaintiff was done and performed.”</p> <p>The verdict was for the plaintiff for $632.50.</p> <p>The defendants moved for judgment on the reserved point non obstante veredicto. The rule was discharged and judgment entered for the plaintiff on the verdict.</p> <p>The defendants took out a writ of error, and assigned for error—</p> <p>1, 2. The parts of the charge in brackets.</p> <p>3. Kefusing to enter judgment for the defendants non obstante mredieto.</p> <p>4. Not affirming defendants’ first point.</p>

<p>1. A lessor and whoever may have succeeded to his title are entitled to the benefit of the Act of December 14th 1863. (Landlord and Tenant.)</p> <p>2. A lessor of a term ending April 1st, sold and conveyed the premises in September preceding ; she gave notice to the tenant to quit on April 1st, as she desired to deliver possession to her vendee; in a proceeding by the vendee under the Act of 1863 to obtain possession, it was held, that the lessor had such interest as to give the notice to quit.</p> <p>3. Every presumption is in favor of proceedings under this act.</p> <p>4. A notice to quit to one of two joint tenants is sufficient.</p>

<p>1. Possession is title, and he having1 such title can he ousted only by him who shows one superior to it.</p> <p>2. A settlement showed against Nicholson in favor of the Commonwealth a balance which was a lien on his lands. An act was passed authorizing commissioners to sell the lands and if they deferred the payment of the purchase-money, to take bonds with sureties and give the purchaser a certificate of his purchase, of having given bond, &c., the bonds to be deposited with the state treasurer; on producing to the secretary of the Commonwealth the certificate with the treasurer’s receipt for the purchase-money, the secretary was to make a deed to the purchaser. Held, that a purchaser acquired no title to the land without complying with these conditions.</p> <p>3. A purchaser having given his bond had an executory contract and he might obtain a deed on the payment of the bond, but would' not be entitled to possession before paying and getting his deed.</p> <p>4. Myer bid for Nicholson land sold by the commissioners, they reported the sale, &c., and that he had given bond with sureties — naming them ; suit in debt was brought by the state treasurer against one who was named in the report as surety, the sum named being exactly twice the amount of the bid ; there was no evidence that the bidder had paid the bond or done anything required by the .act after giving it. Held, there was no evidence for the jury that the bidder had any title.</p> <p>5. Green v, Watson, 10 Casey 332, distinguished.</p>

<p>Error' to the Mayor’s Court of the city of Qarhondale : No. 150, to July Term 1873.</p> <p>This case was originally brought by Patrick Moffit against John Jermyn, before a justice of the peace, and removed into the Mayor’s Court by appeal October 24th 1871.</p> <p>The plaintiff claimed to recover wages due by defendant to John Leslie, which he had assigned to plaintiff by the following paper :</p> <p>“ In consideration of existing indebtedness to Patrick Moffitt, I do hereby assign and set over to the said Moffitt five dollars a month of my earnings, in the employment of the Delaware and Hudson Canal Company, or with whomsoever I may be employed, until the amount due said Moffitt is paid. Amount due $42.98.</p> <p>Carbondale, January 22d 1867.</p> <p>John Leslie.”</p> <p>The plaintiff testified that April 1st 1867, he spoke to defendant about Leslie’s wages, defendant said he would be up again in a few days; about ten days after plaintiff handed defendant a copy of the assignment; Leslie was then at work for defendant, who said he would attend to it. He had other conversations vTith defendant, in .none of which the plaintiff said anything definite until about January 1868, when he refused to pay the money; saying that Leslie was indebted to him.</p> <p>The defendant testified that when Leslie came to work for him he was building a house for Leslie, which was to be paid out of Leslie’s wages, after deducting the account for his current supplies for the maintenance of himself and family, which were to be furnished by defendant; at Leslie’s death he was indebted to the defendant, and the debt was unpaid.</p> <p>The defendant’s points were:—</p> <p>1. An assignment can only be made of moneys due or owing, and not in futuro of moneys to be earned.</p> <p>2. A person laboring for another to pay a debt due his employer is not at any time vested with rights that he can assign, as to his wages, there being nothing due until the debt is paid.</p> <p>3. In this case, the debt of Jermyn being unpaid at the time of service, and to this time, nothing was due JohnLeslie or to be due until said debt was paid, and which to date having not been done, the plaintiff cannot recover.</p> <p>The court answered:—</p> <p>“ 1. A party is competent to assign wages to come due if the vested rights of third parties are in nowise prejudiced thereby, and we answer defendant’s first point in the negative.</p> <p>“ 2. The second point we say is substantially correct, and therefore we affirm it.</p> <p>“ 8. This point is as to the facts of the case which are for the jury to pass upon, and which if they find that the defendant was at no time indebted to John Leslie, from the time when the assignment was first presented to him until Leslie ceased to work for him, then Jermyn, the defendant, is not liable; but if the plaintiff did, about five years ago, hand the defendant a copy of the assignment given in evidence, and the man Leslie continued in his employment thereafter, the defendant would have the right to collect from the laborer any balance due him at the time of notice, and would thereafter be responsible to the plaintiff at the rate of five dollars per month until the assignment was paid.”</p> <p>The verdiet was for the plaintiff for $54.52.</p> <p>The defendant took a writ of error, and assigned for error the answers of the court to the defendant’s first and third points.</p>

<p>Error to the Court of Oyer and Terminer of Luzerne county: To July Term 1873.</p> <p>At the September Term 3872 of the Court of Oyer and Terminer of Luzerne county, William S. Jones was indicted for the murder of Frances Hughes. He pleaded “Not guilty,” and was tried at the same term. On the 27th of September 1872 the jury found a verdict of guilty of murder in the first degree.</p> <p>The court having awarded a rule to show cause why a new trial should not be granted, afterwards made the rule absolute and granted a new trial.</p> <p>On the 23d of January 1873 the prisoner withdrew the plea of “Not guilty” and pleaded “ Guilty.”</p> <p>On the 31st of January 1873, the court (Dana, J., and the associates) proceeded by examination of witnesses to determine the degree of the crime: Act of March 31st 1860, sect. 74, Pamph. L. 402, 1 Br. Purd. 338, pi. 120. The substance of the testimony is stated by Chief Justice Agnew, delivering the opinion of the Supreme Court.</p> <p>On the conclusion of the hearing, the defendant requested the court to give an opinion upon the following points in writing and file the same with the record of the case, together with the testimony upon which the finding of the court is based:—</p> <p>1. Whether the defendant can be adjudged guilty of murder in the first degree unless the evidence clearly and beyond a reasonable doubt establishes that the killing was premeditated, wilful and deliberate, and perpetrated by him when of sound mind, memory and discretion and capable of forming a specific intent to take the life of the deceased.</p> <p>2. Whether as matter of law the evidence in the case is sufficient to base a finding of murder in the first degree.</p> <p>8. Whether the state of the defendant’s mind and body, as shown by the undisputed testimony, were not such as to preclude the possibility of his having formed a deliberate, wilful, premeditated and specific intent to take the life of the deceased.</p> <p>4. Whether an intent and preparation to take the life of his wife, if proved, can be made to relate to the crime with which he is charged.</p> <p>5. Whether an entire absence of motive on the part of the prisoner ought not, in the absence of conclusive proof of a premeditated killing, to raise a reasonable doubt in his behalf.</p> <p>In his opinion, Judge Dana, after recapitulating the evidence, said: * * * “ Under all the evidence we are brought to the conclusion that the shot was fired with intent to kill the deceased.</p> <p>“ In answer to the fourth question presented by counsel for the defence, whether an intention and preparation to take the life of his wife, if proved, can be made to relate to the crime with which he is charged, we reply, that an intention and preparation to take the life of his wife, followed by his killing of the deceased, do not necessarily constitute murder in the first degree. Under the evidence they are connected with, and to that extent relate to, the crime with which he is charged; but our conclusion, reluctantly reached under all the evidence, is that the fatal shot was fired, not with intent to kill the wife, but to kill the deceased, and that such killing was wilful, deliberate and premeditated.</p> <p>“ In answer to the fifth inquiry presented by the defence, we reply that the fact of an entire absence of motive for the act on the part of the prisoner, which is assumed in the question, is not warranted under the evidence. The absence of conclusive proof of a premeditated killing, with the absence of a motive for the act, ought certainly to raise a reasonable doubt in the prisoner’s behalf. But in view of his previous threats; of his declaration after the act; the refusal of the deceased, on the morning of that day, to return his clothing upon request; his previous relations with his wife and with her mother, the deceased; the occurrence at three o’clock of that afternoon; the ill feeling renewed in the minds of both the deceased and the accused ; the altercation at and immediately before the act, we cannot say there was entire absence of motive, but that, on the contrary, the whole evidence discloses the existence of a motive inducing to the act.</p> <p>“ To the first question put to us by the counsel for the defence, we answer that the prisoner cannot be adjudged guilty of murder of the first degree, unless the evidence, clearly and beyond a reasonable doubt, establishes that the killing was premeditated, wilful and deliberate, and perpetrated by him when of sound mind, memory and discretion and capable of forming a specific intent to take the life of the deceased.</p> <p>“We have already expressed our view in the foregoing that the evidence does establish a killing which constitutes murder of the first degree, and we answer the second question in the affirmative, that, in our opinion, ‘ as matter of law, the evidence in the case is sufficient to base a finding of murder in the first degree.’</p> <p>“ We have already answered the third question proposed in the negative, and expressed our conclusion upon all the evidence, that the prisoner’s condition of mind and body was ‘ not such as to preclude the possibility of -his having formed a deliberate, wilful, premeditated and specific intent to take the life of the deceased.’ We have reached these conclusions upon careful consideration of all the evidence, with that caution which the irretrievable result is calculated to inspire. Brief notes of the testimony have been taken; we have given a summary of our conclusions and our answers to the several questions submitted to us, to facilitate their revision, if we have fallen into error.</p> <p>“ Upon all the evidence and circumstances of the case, elicited by examination of the witnesses, as directed by the Act of Assembly, we determine the degree of 'the crime of which the prisoner is convicted by confession to be that of murder of the first degree.”</p> <p>The defendant removed the record to the Supreme Court by writ of error, and under the Act of February 15th 1870, Pamph. L. 15, 1 Br. Purd. 610, pi. 39, assigned for error that—</p> <p>“ The court erred in finding the prisoner guilty of murder in the first degree, such a finding being unwarranted by the evidence.”</p>

<p>Error to the Court of Common Pleas of Bradford county: No. 110, to July Term 1873.</p> <p>On the 15th of August 1865, C. C. McClelland executed to E. Pomeroy a note for $2080, with warrant of' attorney to confess judgment. Judgment was entered in the Court of Common Pleas of Bradford county, No. 456 to September Term 1865.</p> <p>On the 5th of October 1869 an agreement executed by McClelland was filed'; by this it was agreed that the j udgment should he revived, the prothonotary to ascertain the amount; and thereupon judgment was entered against the defendant for $2599.49.</p> <p>The liquidation of the judgment was as follows, viz.:.</p> <p>Debt,.......$2,080.00</p> <p>Interest from Aug. 15th 1865, to date, - 509.79</p> <p>Former costs, - -- -- - 8.70</p> <p>$2598.49</p> <p>Prot. Stamp, ------- 1.05</p> <p>Int. 14th Sept. 1869.</p> <p>On the 29th of July 1872, McClelland filed an affidavit that on the 23d of August 1867, he paid Pomeroy $249.69; on the 18th of June 1868, he paid him $94.57 ; on the 17th of September 1868, he paid him $224.72; on the 11th of November 1869, he paid him $243.44; on the 23d of June 1871, he paid him $2.021.53 ; and that beside he in 1866 paid $80; and that there was nothing due on the judgment.</p> <p>McClelland afterwards made a supplemental affidavit that the judgment was given for cattle, and four per cent, was added to the price of the cattle as interest beyond six per cent, and was usurious, and that the note “ should have been drawn for so much less than -it was.”</p> <p>A rule to show cause why the judgment should not be opened was granted.</p> <p>After hearing the rule the court made this order :—</p> <p>“ On filing paper by plaintiif remitting $80, and interest on same from date of original judgment, rule is discharged. If plaintiff refuse to remit that amount, the original judgment is opened as to said amount of $80 and' interest thereon, and the defendant let into defence as to that amount, and to that end and for the purpose only of letting said defendant into defence as to that amount, said revival judgment is hereby opened.”</p> <p>The defendant took a writ of error, and assigned the following error:—</p> <p>The court erred in refusing to open the revived judgment, and let the defendant into a defence for the purpose of applying the usury paid in this case ; in satisfaction of the balance of this judgment.</p>

185, to January Term 1874. This was an action of ejectment for 50 acres of land in Falls township, Wyoming county, commenced June 18th 1870, by Dennis Wall and others against Stephen Hunt. The plaintiffs were heirs at law of Celinda Hubbard, formerly Headley, deceased.

<p>Error to the Court of Common Pleas of Bradford county: No. 250, to January Term 1874.</p> <p>This was an attachment-execution issued February 17th 1873, by G. P. Tracy against Thomas J. Jones, in which Alexander Solomon was the garnishee. The sheriff returned that he had served the writ on Solomon on the 18th of February, and summoned him as garnishee; and that he had served the writ on the 7th of April on Jones, and that on the 1st of May Jones gave him a notice “ claiming the exemption of §300 from the money attached by virtue of this writ.”</p> <p>On the 12th of May 1878, on motion of the plaintiff’s attorney, judgment was entered against Solomon, garnishee, for want of an appearance.</p> <p>A fi. fa. was issued on this judgment against Solomon, the garnishee ; the sheriff returned:—</p> <p>“Received September 6th 1878, of A. Solomon, by his attorney, James "Wood, seventy-six dollars and ninety-six cents, in full for the within debt, interest and all costs, receipt given.”</p> <p>This sum was paid into court and a rule was granted to show cause why the money raised on the fi. fa. against Solomon, the garnishee, should not be paid to Jones, the defendant in the execution.</p> <p>The court (Streeter, P. J.) discharged the rule, delivering the following opinion :—</p> <p>“When the attachment-execution was served, Jones gave the sheriff notice that he claimed his exemption of three hundred dollars, and the sheriff so returned. No appearance was entered for Solomon, the garnishee, and judgment was taken against-him for the amount of plaintiff’s claim; and execution was issued and the money made. The plaintiff is entitled to take this money out of court — Jones has no claim to it. Whether it was the duty of Solomon, or Jones, to see that judgment was not taken by default we will not now decide. The plaintiff obtained a judgment which he was not entitled to, because no objection was made by either the defendant or the garnishee. If it was the duty of the defendant to see that it was done, he has lost his exemption by his negligence, but if it was not incumbent upon him to see that judgment was not improperly taken, the garnishee may be compelled to pay the money twice. All that is now decided is that Tracy shall receive the money made upon his execution.”</p> <p>Jones removed the record by writ of error, assigning the discharge of his rule for error. .</p>

<p>Error to the Court of Common Pleas of Luzerne county: No. 237, to January Term 1874.</p> <p>This was an action of ejectment, brought February 10th 1871, by Margaret D. Brown against Mary A. Bennett, for one-fourth of an acre of land in the borough of Pittston.</p> <p>A case was stated for the opinion of the court in substance as follows:—</p> <p>“ The plaintiff, a married woman, was the owner of about one-fourth of an acre of land in the borough of Pittston. The deed to her is dated the 29th of July 1867, and is for the consideration of eight hundred dollars. On the 8th of August 1866, by writing under seal, to take effect on the 1st of November 1866, she agreed for the like consideration of eight hundred dollars, to sell and convey the lot to the defendant. The consideration, with interest, was payable $400 on the 1st of November 1866 ; $200 on the 1st of April 1867 ; $100 on the 1st of April 1868, and $100 on the 1st of April 1869. Upon the written agreement, made part of the case stated, are endorsed as paid, August 28th 1866, $400, and 1st pf April 1867, $210, to her agent.</p> <p>“Jacob D. Brown, the husband of the plaintiff, died October 14th 1867, and she received upon the contract on the 11th of April 1868, the sum of one hundred and twelve dollars. The receipt for this sum endorsed -upon the contract, signed by Thomas Ford, who also had signed, as her agent, the receipt of the 1st of April 1867, is in these words:—</p> <p>“ ‘ Received, Pittston, April 11th 1868, one hundred and twelve dollars from Mrs. Mary A. Bennett, pr. hands of John S. Hinds, to apply on the within contract.’</p> <p>“ The defendant, before suit brought, tendered to the plaintiff the balance due and unpaid, after deducting the foregoing payments, and the tender has been kept good.* * *</p> <p>“'The question presented is, whether the receipt by Mrs. Brown of a part of the purchase-money after discoverture operates either as an estoppel, or in affirmance of the contract, and validates the same.</p> <p>“ If the plaintiff be entitled to recover for the land, or to recover, subject to a portion, and how much, or all of the purchase-money, judgment fo be entered therefor to be of the same as if upon a verdict of a jury. * * * If the court be of opinion that the plaintiff is not entitled to recover, then judgment to be entered for the defendant.”</p> <p>The agreement referred to in the case stated was, “between Margaret D. Brown and Jacob' D. Brown her husband in right of said Margaret,” and Mary A. Bennett. After describing the property contracted for and the stipulations as to payments, &c., it concludes:—</p> <p>* * * “ And the said Mary A. Bennett hereby confesses judgment to the said Margaret D. Brown for the said sum of eight hundred dollars, with all costs of entry and of suit, and a release of all errors, and waiver of inquisition on real estate, but the entering of this judgment of record, shall not be construed as a bar to ' any other and different process to which said Margaret D. Brown may be otherwise entitled under this instrument.</p> <p>“ Witness our hands and seals in duplicate.</p> <p>Margaret D. Brown, [seal.]</p> <p>Mary A. Bennett. [seal.]”</p> <p>The agreement was not acknowledged.</p> <p>Dana, J., delivered the opinion of the court below. In concluding, he said:—</p> <p>“Whilst the questions involved are not free from difficulty, yet upon the whole case we direct that judgment be entered in favor of the plaintiff for the land described in the writ; to be released, however, upon condition that the defendant within ten days pay to the plaintiff the sum of one hundred and thirty-three dollars and twenty-seven cents, being the balance of purchase-money ascertained as of the 11th of April 1872, the date of trial, with interest upon said sum, together with the costs in the case. The plaintiff to deposit in the prothonotary’s office for the defendant a deed for said land, agreeably tó the terms of the agreement of the 8th of August 1866.”</p> <p>The plaintiff took out a writ of error.</p> <p>No assignments of error appeared in the paper-books.</p>

<p>1. In a capital case, a juror said : “ I read accounts of this matter in the papers; heard it talked about, I have formed an opinion I think from what I have read; the opinion would follow me if I had no evidence against it into the jury-box; if there was nothing to contradict these reports I should be of the same opinion: unless the evidence satisfied me that I had a wrong opinion I should hold to it. I have not formed an opinion which would influence me unless the evidence sustained it.” 'Also, that notwithstanding the opinion he had formed he could decide on the guilt or innocence of the prisoners upon the evidence and that alone; that he could give a verdict on the evidence uninfluenced by anything he had heard or seen. Held, that he was competent.</p> <p>2. The proper practice is to examine jurors on their voir dire as to the opinions they have formed.</p> <p>3. The deceased was a female who was found near a railroad track at a distance from her house, with many incised wounds. The theory of the Commonwealth was that she had been killed at her house and laid after death, near the track; — she was “ full of blood, plethoric.” The doctor who made the post mortem examination, was asked “ the condition of the body as to fulness or paucity of blood.” Held, to be a proper question: it being to him as an expert on facts, and the quantity of blood likely to flow from such a female, having a bearing as to the place where death occurred.</p> <p>4. A witness said, “ I saw prisoner’s wife when she came” (where body-of deceased lay); “ she said to prisoner if she had been at home this would not have happened ; prisoner made no reply to this.” Held, not to be declarations of a wife against her husband, but a statement to the prisoner which is to be judged by his conduct and not by the declarations of the wife only.</p> <p>5. The prisoner was a party to the occurrence and the declaration was a part of the res gestee.</p> <p>6. The coui-t below charged that if the jury found an unlawful killing it was presumed to be murder, but not higher than the second degree until shown to be of the first degree. Held to be correct.</p> <p>7. The presumption is not one of fact only.</p> <p>8. Associate judges not learned in the law are not excluded from the Court of Oyer and Terminer by the new Constitution.</p> <p>9. Commonwealth v. Drum, 8 P. F. Smith 18 ; Staup v. Commonwealth, 24 P. F. Smith 458, referred to and adopted.</p>

299, to January Term 1874. This was an appeal in the court below, from an order made in June 1873, by two justices of the peace of the county of Bradford, for the removal of Francis Hoagland, a pauper, from the poor distinct of South Creek, Bradford county, to Tioga county. The appeal was filed September 3d 1873.

<p>1. Simmons was a special partner; after the expiration of the partnership, he filed a hill against the other members of the firm for an aeeount, receiver, &c. A decree was made for an aeeount and a receiver appointed. He afterwards settled with his partners and received securities which were assets of the firm. Held, that this having occun-ed after the expiration of the partnership, Simmons was not liable as a general partner, under the Limited Partnership Act of March 21st 1836, to the creditors of the firm.</p> <p>2. Such a liability under the act relates to an existing partnership, and not to a partnership already dissolved.</p> <p>3. A boufl, fide compromise of a suit to compel the settlement of a partnership,- and the special partner’s receipt for what he may believe due him, does not make him a general partner of an expired partnership.</p>

<p>1. Without a voluntary submission by a defendant in foreign attachment to the jurisdiction of the court, a judgment in such case can be enforced only against the property attached or against the garnishee in personam to the extent of the property in his hands.</p> <p>2. Such judgment has no extra-territorial operation.</p> <p>3. Foreign attachment will not lie upon a demand in tort.</p> <p>4. When the claim is for goods or land of a non-resident in his constructive possession by his agent or tenant, the plaintiff has a remedy by replevin or ejeetment against the person in possession for the goods or land; or in trover for damages for the goods.</p> <p>5. In an ordinary demand, for debt or damage, the person of a non-resident cannot be reached by process from a court of common law.</p> <p>6. In Pennsylvania unless there be service within the jurisdiction, there can be no judgment for want of an appearance.</p> <p>7. As a general principle wherever a court of equity has jurisdiction, it will make a complete decree so as to settle the controversy between all the parties: but although defendant’s property be within its reach, this will not give jurisdiction of his person, if a non-resident, so as to authorize service upon him in another state, and to enter a personal decree against him.</p> <p>8. Under the Act of April 9th 1859, as to execution of process on nonresidents, &c.; the bill must be confined, so far as the interest of a foreign defendant is concerned, only to the property in question: process cannot be served on the defendant.</p> <p>9. A bill was against a corporation, Dwight, who was alleged to hold stock in the corporation and money arising out of corporation transactions and other defendants alleged to be debtors to Dwight, to compel a transfer of stock and payment of the money to the plaintiff claiming to be entitled to the stock and money held by Dwight. Held, that Dwight only was “ the principal defendant” under the Act April 6th 1859.</p> <p>10. Dwight being a resident of another state, process served upon him there could not give jurisdiction of his person.</p> <p>11. By order of the court Dwight was served in New York, he moved to set aside the ordex-, service, &c.: this being refused he appeared de bene esse reserving all exceptions to the order and service, and under rule answered under a similar reservation: Held, that this did not estop'him for setting up the want of jurisdiction at any stage.</p> <p>12. If a final decree had been made in the court below, he could make objection to jurisdiction in the Supreme Court.</p>

17, to January Term 1874. This was an amicable action of assumpsit and case stated, filed May 27th 1878, in which the county of Northampton was plaintiff and the Lehigh Coal and Navigation Company were defendants.

<p>1. A railroad company tendered a bond with sureties to a land-owner who refused it; before approval of the bond, the officers, contractor, &c., entered his land; the bond was afterwards approved. Held, that trespass would lie against the parties entering.</p> <p>2. The amended Constitution of 1838, art. 7, sect. 4, Railroad Laws of February 19th 1849, sect. 10, and April 9th 1856, sect. 2, construed together.</p> <p>3. Harrisburg v. Crangle, 3 W. & S. 460 ; McClinton v. Pittsburg, F. W. & C. Railway, 16 P. F. Smith 404, recognised.</p>

<p>1. A corporation adopted the trade-mark, “ Glendon” on their iron ; the place where their furnaces were was afterwards made a borough by the name of Glendon, Another company afterwards used the mark “ Glendon,” on their iron. Held, that the second company could lawfully use this mark.</p> <p>2. As a general rule the name of a town, &c., cannot be exclusively appropriated as the trade-mark of any one.</p> <p>3. A lawful act is not actionable although it proceed from malicious motives.</p>

42, to January Term 1874. The proceedings in this case arose under the following circumstances, as found by the report of Charles H.… Held: that a voluntary settlement which denudes the husband of all or a greater part of his property is much more than a reasonable provision for the wife; for in considering what is, and what is not a reasonable provision, the circumstances of the husband are to be regarded — his probable necessities, as well as his debts': 2 Story’s Eq.…

No. 120. On the 18th of December 1872, John Y. Woodward brought an action of debt against Peter Herdic. The plaintiff filed the following statement of his claim:— “April 1st 1872.

<p>Appeals from the Court of Common Pleas of Gamer on county: In Equity : No. 282 and 447, to January Term 1872.</p> <p>On the 6th of May 1867, Henry W. May filed a bill against P. G. Fessler, N. C. Harri% A. H. Spaulding, C. Hunsicker, George Perry, David McOraney and Samuel McOraney. The bill set out:—</p> <p>1. Plaintiff on September 11th 1863 owned a tract of timber land on Loshbaugh run, in Cameron county, being part of a tracl; warranted to William Willink, containing about 600 acres, which tract he owned under an agreement with L. A. Mackey and D. Carskaddon, and on the contract he owed to his vendors $1100.</p> <p>2. Fessler, the defendant, wishing to purchase logs to be cut from the land, plaintiff’entered into a written contract with him on the 11th of September 1863, Fessler to pay plaintiff $500 in twelve days and $600 more in eighty days, to be applied to the payment of the amount due to Mackey and Carskaddon for the purchase-money of the land; and when this money should be fully paid the.deed to be made to Fessler, who was to hold the title as collateral security until the $1100 should be repaid in logs to be cut from the land by the plaintiff and delivered to Fessler, who agreed upon-such repayment to reconvey the land to the plaintiff. This agreement, “A,” was made part of the bill.</p> <p>3. On the same day plaintiff made another agreement with Fessler, in which the first agreement is referred to, and by which plaintiff agreed to sell to Fessler from the land 1,000,000 feet or more of logs, and deliver them on Loshbaugh run, Fessler to pay at the rate of $5.25 per thousand feet, to be paid, $500 in twelve days, and $1.50 per thousand feet as fast as the logs were delivered, $1 per thousand feet to be paid monthly, from the 1st day of January 1864, 75 cents per thousand feet when the drive of the logs should start, and for the balance, after deducting the amount to be paid to Mackay and Carskaddon, Fessler to give plaintiff his note, payable in four months from the time the drive should start. This agreement, “B,” was made part of the bill.</p> <p>4. Shortly afterwards Fessler paid Mackey and Carskaddon $500, and then, for the purpose of^garrying out agreement “A,” the contract between plaintiff and Mackey and Carskaddon was, by the consent of all parties in interest, destroyed, and a new contract was made between Fessler and plaintiff for the purpose still of carrying out agreement “A,” whereby Mackey and Carskaddon agreed, on the payment of the remaining $600 due on their contract with' plaintiff, to convey the land to Fessler; he after-wards paid the $600; the land was conveyed to him and he held the legal title.</p> <p>5. Plaintiff had always been ready to> perform his part of agreement “B ” on being paid for the logs according to its terms, and in the performance the agreement to repay to Fessler the $1100 paid by him to Mackay and Carskaddon.</p> <p>6. Fessler, shortly after contract “B ” was made, paid $250 on account of it, and although often requested, paid no more until April 1864, when he paid $250 more; but the plaintiff, notwithstanding, being anxious and ready to carry out his part of the contract, continued until January 1864 to. cut and get the logs into the creek, to his great inconvenience and damage, on account of Fessler’s failure to comply with his agreement; up to that time he had delivered 61,800 feet of logs, when he demanded payment for them, and was refused by Fessler; plaintiff then offered to pay Fessler all the money advanced for plaintiff if he would let plaintiff have the title to the land and logs; -this, also, Fessler refused; plaintiff then resumed work in getting the logs at great disadvantage and loss, on account of Fessler’s refusal to pay him, and continued-so to work until March 1st 1864, .when he had delivered 180,950 feet of logs in the run, all which Fessler claimed and received, but had refused to comply with the terms of the contract.</p> <p>7. Fessler claimed the land and logs as his own, and denied that the plaintiff had any right, title, interest or claim in the same.</p> <p>8. By reason of Fessler’s refusal to make his payments, the plaintiff was compelled to discontinue getting the logs into the creek for want of means to carry on so expensive a work, but was still willing and ready to complete the work on the performance by Fessler of his agreement.</p> <p>9. The defendant caused agreement “ A ” to be recorded on the 12th of February 1864, for security for himself and notice to others, and had frequently, by verbal and written notices, informed the defendants of the agreement “A” before they began to cut timber, yet the defendants, P. G. Fessler, N. C. Harris, A. H. Spaulding, C. Hunsicker, George Perry, David McCraney and Samuel McCraney, had entered into possession of- the land, and were cutting and taking timber from it.</p> <p>The prayers were:—</p> <p>1. That Fessler be requir^to account for the logs delivered to him under article “B,” and pay the plaintiff for them as well as for the damages he had sustained by the violation of the contract by Fessler.</p> <p>2. That Fessler be compelled to convey the land to the plaintiff on payment to him of the advancements made for the plaintiff should anything be found due.</p> <p>3. That the defendants be restrained from setting up title to the land, and from cutting or removing timber, &c., and that they be required to deliver to the plaintiff all the timber cut.</p> <p>4. That they be required to account for all the timber cut by them, &c., and for all damages done, &c. ■</p> <p>5. For further and general relief.</p> <p>The agreements were as follows:—</p> <p>“A.” This agreement, made this 11th day of September 1863, between P. G. Fessler and H. W. May — Witnesseth: That whereas the said H. W. May holds an agreement with L. A. Mackey and D. Carskaddon, for a tract of land on Loshbaugh Run in Cameron county. Now this is to show that the said P. G. Fessler agrees to make a certain payment of five hundred dollars to the said May, to apply on the said land, in twelve days, also, a further payment of six hundred dollars in eighty-six days from this date, and it is agreed and understood, that the title of said land shall be made to the said Fessler, and be by him held until the eleven hundred dollars shall be paid by the said May to the said Fessler, in saw-logs, as per terms stated in a contract for logs this day made between the parties. Then the said Fessler agrees by himself, his heirs and assigns, to convey to the said May, his heirs or assigns, the said tract of land free from encumbrance. In witness whereof, the parties have placed their hands and seals.</p> <p>“P. G. Fessler. [l. s.]</p> <p>“II. W. May.” [l. s.]</p> <p>“ B.” Agreement made the 11th day of September, A. d. 1863, between H. W. May, of Wharton township, Potter county, and state of Pennsylvania, of the first part, and P. G. Fessler, of Williamsport, Lycoming county, and state aforesaid, of the second part, as follows:—</p> <p>“ The said party of the first part hereby agrees to sell and deliver to the said party of the second part as hereinafter specified, one million or more feet of merchantable white pine saw-logs, board measure; said logs to be well butted off; free from shakes or other defects, and not to run further into tops than to make good merchantable lumber. * * *</p> <p>“ It is understood that s-aid logs- are to be cut during the coming fall and winter, and to be hauled into Loshbaugh Run below Herdic’s job, in such manner as to be safe from ice floods, &e., and at suitable places for floating out of said stream, and all to be done in time for the first floods next spring, suitable for driving logs out of said stream. * * *</p> <p>“ In consideration of which, the said party of the second part hereby agrees to pay to the party of the first part five dollars and twenty-five cents per thousand feet, board measure, for all logs scaled and accepted, by the man to be sent as aforesaid and so delivered in the stream as aforesaid as follows:—</p> <p>“ Five hundred dollars within twelve days, one dollar and fifty cents per M. feet when delivered in the above said run, one dollar per M. feet, payable monthly from the 1st of January, and seventy-five cents per M. feet when the drive starts, and the balance in my notes of four months from the time the drive starts. (The payments on the land are to come out of the two last payments.)”</p> <p>Fessler answer was:—</p> <p>1. Plaintiff never had any interest in the land except as thereafter stated.</p> <p>2. Plaintiff, in September 1863, told Fessler that he had the refusal of the land, and wished Fessler to buy logs and advance him money to enable him to pay for the land: the agreement “B" was then made; Fessler had no recollection of agreement “A.” Fessler was to buy the land, and if plaintiff complied with his contract as to the logs, Fessler was to convey the land to plaintiff; there was no agreement that Fessler should hold the land as collateral security, and convey to plaintiff on being repaid the purchase-money..</p> <p>3. Afterward Mackey, by agreement “ O ” attached to the answer, agreed to sell and convey the land to Fessler; this agreement being “independent of any agreement of refusal of the land ” made with plaintiff. Mackey refused to sell the land to plaintiff, unless he would pay or secure the purchase-money, as plaintiff was “totally insolvent.”</p> <p>4. Plaintiff failed to get out the logs acccording to his contract. He was to get out 1,000,000 before he could claim any part of the price, except $500 which Fessler paid.</p> <p>5. Plaintiff never delivered any logs to Fessler except about 30,000 feet, and he “ afterwards refused to carry out his agreement and abandoned the job.”</p> <p>6. 7. Plaintiff tried to sell some of the logs in fraud of his agreement; he had logs in the woods which he never delivered; and by his failure to perform the contract Fessler suffered great damage.</p> <p>8. Plaintiff never offered to pay Fessler $11,000 or any part for the amount paid Mackey. , 9. Fessler did not receive the deed until January 4th 1865. when all agreements between him and plaintiff were at an end.</p> <p>10. Fessler sold the land September 14th 1866, by articles (“ D.” attached to answer), to N. C. Harris, who had paid him $1000 and taken possession. The equitable title was not then in Fessler, nor at the filing of the bill, and he had no interest in the land except as to the balance of'the purchase-money.</p> <p>11. Fessler never acknowledged any agreement with the plaintiff, there Avas no subscribing witness to the agreement “A,” and Fessler did not authorize its being recorded.</p> <p>12. Fessler had not been in possession of the land since September 1866, and had not taken aAvay any timber, the land having before that time been sold to Harris.</p> <p>The agreements referred to in the answer were:—</p> <p>“ C.” Know all men by these presents, that, for and in consideration of the sum of $475, to L. A. Mackey paid by P. G. Fessler, the receipt, &c., and upon the further payment by the said P. G. Fessler, of the sum of $482.75 within three months from the date hereof, I do covenant, &c., to sell and convey to him, his heirs or assigns, or to such party or parties as he may designate, free from encumbrances, the tract or tracts of land situate in the township of Grove, in the county of Cameron, as follows : No. 4940, 495 acres, south part, Wilhelm Willink and others, warrantee, it being all that part of said tract of land formerly situate in Clinton county, and purchased by me at treasurer’s sale, in said county, m 1850; and upon failure to pay the sum last above mentioned within the time above specified, then this agreement to be null and void between both parties.</p> <p>“L. A. Mackey, [l. s.]”</p> <p>September 19th 1868.</p> <p>“D.” Agreement, made and concluded on this 3.4th day of September, a. d. 1866, between Philip G. Fessler, of, &e., and N. 0. Harris, of, &c.,Avitnesseth that, for the consideration hereinafter mentioned, the said party of the first part agrees to sell and convey to the said'.party of the second part, his,heirs and assigns, all that certain tract of unseated land situated in Cameron county, Pa., formerly in Grove township, Clinton county, surveyed on a warrant granted to Wilhelm Willink and others, on the 3d day of February, a. D. 1794, numbered 4940, containing 495 acres, more or less, it being all that part of said tract lying in Clinton county previous to the erection of Cameron county, and being-the same tract of land conveyed by deed, dated January 4th 1865, by Wm. Feeron and Eliza his Avife, to the party of the first part, in consideration whereof the said party of the second part, &c., agrees to pay the said party of the first part, &c., $2000, as follows, to wit: $1000 on.the execution of, this agreement, and the remaining $1000 in one year from the execution of this agreement, with interest. On the payment of the purchase-money, the said party of the first part binds himself; his heirs and assigns, to execute and deliver to the said party of the second part, his heirs or assigns, a warrantee deed for the above-described tract of land, clear of all encumbrances ; and in case that security is given, then the said party of the first part will execute and deliver a deed whenever required by the said party of the second part.</p> <p>“Witness our hands and seals, September 14th, A. D. 1867.</p> <p>“P. G. Fessler, [l. s.]</p> <p>“N. C. Harris, [l. s.]”</p> <p>In presence of Henry W. Watson.</p> <p>“ Received, Williamsport, September 14th 1866, of N. 0. Harris, his check, payable to my order, on First National Bank of Athens, for $1000, which, when paid, will be in full of the first payment herein mentioned. “ Henry W. Watson,</p> <p>“Attorney for P.’G. Fessler.”</p> <p>N. 0. Harris answered :—</p> <p>1. He had no knowledge of plaintiff having been owner of the land, but believed that he never had been.</p> <p>2. He had no knowledge of agreement “ A” and denied that plaintiff had any interest in the land on the 11th of September 1863 ; Mackey and Carskaddon had the title and they were under no obligation to convey to plaintiff, who had never bound himself to pay any of the purchase-money; nor had he paid any of it: on the 4th of January 1865, Mackey and Carskaddon conveyed the land to Fessler and Fessler sold it to Harris, by articles dated September 14th 1866, for $2000 of which $1000 were then paid; $1000 being still unpaid. A copy of the article marked “E” was attached to this answer.</p> <p>4. He believed that the conveyance from Mackey and Carskaddon to Fessler was not in pursuance of an agreement between plaintiff and Fessler or Mackey and Carskaddon; he denied that there ever had been any contract between plaintiff and Mackey and Carskaddon, for the purchase of the land, or that Mackey and Carskaddon were under any obligation to -convey the land to the plaintiff; and that when the land was conveyed to Fessler, the plaintiff had any interest in it. '</p> <p>The answer then denied under belief, that plaintiff had complied with contract “ B,” &c., for the delivery of the logs to Fessler, &c. '</p> <p>9. Harris denied knowledge of the recording of agreement “ A;” — he denied having any notice of the agreements. After he purchased from Fessler, he entered on the land and employed others to 'cut timber for him and take it to’ market; the Craneys, defendants, worked for him but neither they nor Hunsicker who superintended the cutting, had any interest in the land or the timber; Perry and Spaulding had no interest in the land or timber.</p> <p>Agreement “E.” was as set out in the answer of Harris.</p> <p>By a supplementary answer, Harris averred that he had employed George Perry to make inquiry as to the title, &c., and was informed by him that Fessler owned the land and upon that inforformation he purchased from Fessler and then knew of no claim from any other person; — after he had taken possession and commenced cutting timber, plaintiff forbade his cutting and notified him of his claim, in March or April 1867, a short time before filing the bill; Harris upon inquiry from Perry, Fessler and Carskaddon was informed by them, that plaintiff never had any title or claim to the land, that he had not paid Mackey and Carskaddon for the land nor was he indebted to them for it. Harris had taken logs from this land and another tract adjoining together about 1,098,000 feet and about one-half of this amount was taken from the lot claimed by plaintiff, amounting to about 500,000 and 600,000 feet.</p> <p>An examiner was appointed who took a large amount of testimony in the case. Afterwards B. S. Bentley, Esq., was appointed master. In his findings, and in the opinion of C. J. Agnew, the facts sufficiently appear.</p> <p>The master reported:—</p> <p>“ 1. On the 11th day of September 1863, Henry W. May, plaintiff, held an agreement in writing from Mackey and Carskaddon, in which they had obligated themselves to convey to him the land described in plaintiff’s bill, upon his paying to them the amount therein stipulated, at the time stipulated, which agreement was in full force and effect on the day aforesaid, and by which Henry W. May had an equitable interest in the land that he could sell, mortgage or otherwise dispose of; the facts set forth in first paragraph of plaintiff’s bill are true.</p> <p>“ 2. For the purpose of raising means to pay for the said lands, he entered into the agreement with P. G. Fessler, as contained in the two papers, marked ‘ A’ and ‘ B.’ Said two papers, bearing date September 11th 1863, were executed by the parties simultaneously, and are to be construed together as constituting one agreement. Therein P. G. Fessler agreed to pay to Mackey and Carskaddon the amount going to them from Henry W. May as purchase-money on the land, being $1100, or thereabouts, and upon the repayment to him in saw-logs, in the manner provided for in the agreement, he agreed to convey the land to Henry W. May, his heirs and assigns. Henry W. May agreed on his part to cut, sell and deliver to P. G. Fessler one million feet or more white pine logs, at $5.25 per thousand feet, within the time and in the manner particularly set forth in the agreement. And P. G. Fessler agreed to pay for the logs $500, within twelve days from the date of the 'agreement. $1.50 per thousand feet when delivered in the Run, designated in the agreement, the balance to be paid as in the agreement provided for, and the payments made on the land to Mackey and Carskaddon should be taken from, the last two payments, and the facts set forth in paragraphs 2, 3 and 4 of plaintiff's bill are true. .</p> <p>“ III. In pursuance of the agreement, Henry W: May commenced cutting and hauling logs, on or about November 1st 1863,,and up to January 28th 1864, he cut and delivered 60,300 feet. Upon his delivering the logs, there, would have been due to H. W. May, according to the agreement, as follows :—</p> <p>“ To be paid within twelve days from Sept. 11th 1863, $500.00</p> <p>“ “ “ $1.50 per thousand delivered in Run, being $1.50 on 60,300 ft. so delivered, - - 90.45</p> <p>$590.45</p> <p>“IV. P. G. Fessler did not pay $500 within twelve days from the date of the agreement, nor at any time thereafter up to the 28th of Jan. 1864, nor did he pay $1.50 per ‘ M.’ for the 60,300 ft. delivered in the Run previously to Jan. 28th 1864. But he did pay Sept. 21st 1863, part of the $500, to wit: - - - $250</p> <p>“ Also, $5 sometime in January 1864, - 5</p> <p>-— $255.00</p> <p>“ Thus leaving due to Henry W. May, Jan. 28th 1864, from P. G. Fessler, according to their agreement, ........$335.45</p> <p>‘ V. On the 19th day of September 1863, P. G. Fessler obtained from Mackey and Carskaddon an agreement for the land. This agreement was to the same import and upon the same terms as the one held by Henry W. May from them, and the agreement was obtained by P. G. Fessler in the presence of and with the consent of Henry W. May, and in furtherance of the agreement made between them September 11th 1863.</p> <p>“VI. P. G. Fessler paid to Mackey and Carskaddon, on the 19th day of Sept. 1863, - $475.00</p> <p>“ And on the 6th day of Jan. 1865, he took a deed for the land, in his own name, from William. Fearon, trustee of Mackey and Carskaddon, and then paid the balance due on the contract, to wit: - - $482.75</p> <p>“ Total paid by P. G. Fessler on the land, $957.75</p> <p>“ VII. -On the 14th day of September 1866, P. G. 'Fessler sold the land to N. C. Harris, one of the defendants, by contract. N. C. Harris paid, upon the execution of contract, $1000 to P. G. Fessler, and also agreed to pay him $1000 more within one year from the date of the contract. He also paid to George Perry $500 for his services in the sale and purchase of the property, between P. G. Fessler and N. C. Harris, making $2500 paid and agreed to be paid by N. C. Harris for the land.</p> <p>“VIII. Prior to the purchase by N. C. Harris, he had employed George Perry to make inquiry as to the title and price of the land. George Perry did make inquiries. He knew that May was cutting logs on the land. He saw the agreement between P. G. Fessler and Henry W. May. He had- conversation with Carskaddon in relation to May’s interest in the land, but did not go to May to make inquiries of him. After the payment of $1000 by N. C. Harris on his contract, notice was given to George Perry, while he and others were at work on the land cutting'logs for N. C. Harris, by Henry W. May, that the logs they were cutting would be held by him when they reached the boom. Before N. C. Harris paid the last $1000 to P. G. Fessler, on his contract, the plaintiff’s bill had been served on him, giving him full notice of plaintiff’s claim. The allegation that personal notice was given by Henry W. May to N. C. Harris, in the fall of 1866, while Harris was negotiating with Fessler, is denied by N. C. Harris, and the allegation is not sustained. The parol evidence of the recording of the contract is insufficient to raise the question of notice, as it is not shown that the contract was acknowledged, or that it was properly recorded, and P. G. Fessler makes oath that it never was acknowledged by him, and there were no subscribing witnesses.</p> <p>IX. Warrant 4940, mentioned in the first paragraph of plaintiff’s bill, was divided east and west by the Potter and Cameron county line. The part thereof purchased by the said N. C. Harris, and claimed by the plaintiff, is in the county of Cameron, and south of the said line. N. C. Harris also purchased the part of said warrant lying in Potter county, of other parties. The part lying in Cameron county contained a larger number of acres, and had- more timber growing upon it than the part in Potter county. N. C. Harris sold, and by deed bearing date the 22d day of September 1868, after service of plaintiff’s bill on him, conveyed the undivided half of the warrant to F. N. Page, for a house and lot situate in Athens, Bradford county, Pennsylvania, valued by the parties at $15,000, which I find to be the fair value thereof. He sold the other undivided half of the said warrant to F. L. Wells, 'for the consideration of $15,000 as mentioned in the deed from N. C. Harris to F. L. Wells, bearing date the 24th day of April 1869, and that there is no evidence of the said Harris having expended any money in making improvements before the sales on said lands.</p> <p>“X. N. 0. Harris cut aiid took from the lands, before he made sale thereof, at least 1,093,000 feet of white pine, worth $3 per tllOUSQilld. liGGfc</p> <p>“ XI. Henry W. May, on the 11th day of September 1863, had not the means to pay Mackey and Carskaddon for the land. ' He had not the means in himself to cut and deliver the logs to P. Gr. Fessler, in accordance with his contract, and it was for the want of such means, the same not being furnished by P. Gr. Fessler, that he did not go on with the job and fulfil his agreement.</p> <p>“ XII. The plaintiff went at different times to P. Gf. Fessler during the month of January 1864, to get money, alleging he could not get out the logs unless he could get money,- and alleging there was money due him. He offered to pay to P. Gf. Fessler all the moneys he had advanced on the contract if he would give up or vacate said contracts, and that said Fessler refused.</p> <p>“ XIII. P. G. Fessler paid on his contract with May as follows:— September 21st 1863, paid to Henry W. May, - - $250.00 January .1864, “ “ “ “ - - 5.00</p> <p>April 4th 1864, “ “ “ “ ' - - 250.00</p> <p>September 19th 1863, paid to Mackey and Carskaddon, on land, - - - - - 475.00</p> <p>January 4th 1865, paid to Mackey and Carskaddon, on land, ----- 482.75</p> <p>$1462.75”</p> <p>He received 60,300 feet of logs on contract at $5.25 per thousand, ----- $316.50</p> <p>Also, from N. C. Harris, on contract for sale of land to him, September 14th 1866, - 2000.00</p> <p>$2316.50</p> <p>Deduct amount paid as above, - 1462.75</p> <p>Amount received over amount paid, - - $853.75</p> <p>“ XIV. The amount of timber taken from the land claimed by plaintiff was 666,667 feet. This, at $3 per thousand, would give - $2000.00</p> <p>He also received, on sale of lands to F. N. Page, house and lot valued at - - - 15,000.00</p> <p>$17,000.00</p> <p>N. C. Harris paid to Fessler $2000.</p> <p>Received beyond what he paid, $15,000.</p> <p>* * * ■* * *</p> <p>“ I find the following legal conclusions from bill, answers and evidence:—</p> <p>* * * * * *</p> <p>“ II. The agreement of Mackey and Carskaddon to sell, and upon payment of the purchase-money, to convey the land to Henry W. May, as contained in the first finding of fact, was a valid agreement, and binding upon them, and under it the plaintiff had an equitable interest in the land on the 11th day of September 1863, that he could sell, mortgage or otherwise dispose of.</p> <p>“III. The arrangement and agreement between Henry W. May and P. Gr. Eessler, entered into on the ’ 11th day of September 1863, was either a sale of plaintiff’s interest in the land, or a mortgage, security or pledge thereof, for the performance of some act. That it was not 'intended as an absolute sale is evident from the terms of the agreement and the situation of the parties. Nor was it a conditional sale. P. Gr. Fessler had no interest in the land that he agreed to part with to Henry W. May, upon certain conditions to be performed by him. In a conditional sale the estate reverts to the vendor, upon non-performance of conditions. This was not the case between Eessler and May. May was the equitable owner of the land. To complete the title, and save his equitable estate, the purchase-money must be paid. May had not the money to pay, but as is frequently the ease, he was willing to put the land in pledge to secure an advancement of the purchase-money. He entered into an agreement with P. Gr. Eessler to advance the money, and to take and hold the title until he should be reimbursed the money he should have advanced. It is true that May agreed to pay in saw-logs, at a particular price, and he also agreed to get out a much larger quantity at a particular price, and to be delivered within a specified time, than was necessary to repay Fessler the money he was to advance upon the lands. Whether he was to get his pay in saw-logs, or in some other way, is immaterial.</p> <p>“ There is more in substance than in a name. The arrangement of the parties as contained in their agreements of September 11th 1863, I hold to be in the nature of an imperfect or equitable mortgage, security or pledge. We may call it what we please— its character remains the same; it was a security coupled with a trust. Eessler was to advance the money and take the title in his own name, and to hold in trust for May, until May should reimburse him, and then to convey to him in fee.</p> <p>“ It is claimed, however, on the part of the defendants, that admitting it to be a security, mortgage or pledge, it was a pledge for the performance of the entire contract on the part of May, and that he could have no claim in equity without showing an entire performance. I do not assent to this; I think the security was only for advancements to be made by P. Gr. Fessler. That at any time, without the delivery of a single saw-log, upon paying to Eessler the money he had advanced in pursuance of the agreement, and interest, May would have been entitled to a conveyance of the land from Fessler, and a court of equity would have decreed such conveyance, leaving to the parties their common-law remedies for other breaches of the agreement. The transaction being, then, in the nature of a mortgage or security, there could be no forfeiture of estate, and no change' in the relation of the parties, except by agreement of parties, or by proceedings in equity and decree of sale.</p> <p>“ IV. That even if there be error in the foregoing conclusion, it would not relieve the defendants. I construe the agreements of September 11th 1863, that Fessler shall not only pay to Mackey and Oarskaddon $500 on the land, within twelve days, but that he shall also pay $500 towards the logs, within twelve days, and that he shall also pay $1.50 per thousand feet so fast as May shall deliver the logs in the stream. This, he did not do, and as a consequence thereof May could not and was not under obligations to go on with the contract.</p> <p>“ V. That the contract obtained by P. G. Fessler from Mackey and Oarskaddon, on the 19th day of September 1863, was obtained in pursuance of the agreement of September 11th 1863, and was held in trust by P. G. Fessler for Henry W. May.</p> <p>“ VI. That P. G. Fessler was bound to accept the offer made by May, and others on his behalf, and to take the money he had advanced on land and logs, and to assign the contract he held from' Mackey and Oarskaddon for the land, and to vacate or annul the contract he had made with May (he, Fessler, having failed*to perform his part); and having refused to accept the offer, and claiming the land as his, it was not necessary for May to make a tender of the balance that might be due to Fessler after deducting what logs he had received, before filing his bill. The refusal to do anything about it obviated the necessity of a tender as regards the plaintiff’s right to support his bill.</p> <p>“ VII. That George Perry was the agent of N. O. Harris in looking up the title to the land. That George Perry had notice, prior to the purchase of the land by the said N. C. Harris, and while he was acting for him in relation to the purchase thereof, sufficient to put him upon inquiry of May; and that N. C. Harris, as principal, was affected by such notice to Perry.</p> <p>“ VIII. That N. C. Harris, having purchased the land of Fessler, after notice to George Perry, his agent in the transaction, stood in no better situation than did P. G. Fessler himself, and would hold the land in trust for May, upon the same conditions that Fessler held it.</p> <p>“ IX. That in case there be error in the 7th conclusion of law, it could have no effect except as to the $1000, for before anything farther was paid by the said N. C. Harris, the plaintiff’s bill was served on him, which was full and direct notice to him of the plaintiff’s claim. The bill having been served on him November 2Sd 1867, he could have protected Himself against any farther payment to Fessler, and he would have teen protected as to the $1000 paid, provided he had been a boná fide purchaser, without notice. But the result will show that he is protected in either case.</p> <p>“X. That if P. G. Fessler held the land in security, as herein-before stated, he could convey no better title to any other person with notice, than he held himself. He could at any time have brought his bill against May, and procured a decree for the sale of the land, and thus have cut off May’s equity. This he was bound to do unless by agreement with May — ‘ Once a mortgage, always a mortgage.’</p> <p>“ XI. That the sale and conveyance of the land by N. C. Harris, while the case was pending, and after service of plaintiff’s bill upon him, for a house and lot valued at $15,000, enures to the benefit of the plaintiff, and the said N. C. Harris can take no advantage thereby. It was mala fides in him after service of bill upon him to put it out of his power to comply with the decree for specific performance prayed for, and he must therefore respond in damages under plaintiff’s general prayer for relief.</p> <p># * * * * * * *</p> <p>“ XIV. That P. G. Fessler is bound to account to the plaintiff for $853.75, being the amount received by him beyond the amount advanced by him, with interest thereon from September 14th 1866, the day of sale of the lands to N. C. Harris by the said P. G. Fessler.</p> <p>“XV. That N. C. Harris is bound to account to the plaintiff for $15,000, being the amount received by him in house and lot and timber, over and above the amount paid by him to P. G. Fessler, with interest thereon from the 10th day of January 1869, being about the proper average of time between the dates of sales to Page and Wells by the said N, C. Harris.</p> <p>“ XVI. That the conduct of the plaintiff has not been free from objection in the transaction. He slept upon his rights for three years. He made no tender to P. G. Fessler, before filing his bill, of the money that had been advanced by him. From these facts, and other evidence in the case, I deem it equitable that he should not recover costs, and that he should pay the one-half thereof, and that P. G. Fessler and N. O. Harris should pay the other half thereof.”</p> <p>He reported this decree:—</p> <p>“ It is therefore ordered, adjudged and decreed, that the defendant P. G. Fessler pay unto Henry W. May, the plaintiff, $853.75, within sixty days from the service of notice upon him of the final confirmation of this decree, and interest thereon from the 14th day of September 1866. And that the said N. C. Harris pay unto Henry W. May, the plaintiff, within four months from the final confirmation of this decree, $15,000 and interest thereon till paid, from the 10th day of January 1869.</p> <p>“ That the plaintiff pay the one-half of all costs, and that P. G. Fessler and N. C. Harris pay the other half thereof.”</p> <p>Both parties filed exceptions to the report. After argument, The court (Williams, J.), in concluding his opinion, said :—</p> <p>“ The bill made a case against Fessler for conveyance under the evidence. We decree compensation, but the bill made no case against Harris, except for an injunction and account. As no conveyance from him is asked, none can be decreed. No facts are alleged in the bill which could sustain such a prayer for relief, if made, and for that reason the prayer for general relief will not justify the decree recommended, so far as it relates to Harris. From this view it follows that we sustain such of the exceptions to the master’s report as relate to the decree against Harris, and such as relate to the decree against Fessler are overruled.”</p> <p>A decree was entered in accordance with this conclusion.</p> <p>Both parties appealed to the Supreme Court, assigning for error respectively the parts of the decree against them.</p>

<p>Appeal from the Court of Common Pleas of Clearfield county: In Equity: No. 136, to January Term 1873.</p> <p>The proceedings in this case were commenced by a bill filed May 31st 1870, by Henry Whiteside and Mary his wife in her right, James Hegarty, John M. Jordan, and Jane his wife in her right, and as assignee of George Hegarty, Henry Hegarty, Joseph Hegarty,'William Thomas and Isabella his wife, in her right, Mary Jane McCullough, Louis McCullough, Cortes Bell and Matilda his wife, in her right, and Agnes Bell, against Samuel Hegarty in his own right, and as executor, &c., of Samuel Hegarty, deceased, William Albert, George Albert, and Henry Albert, and the United Presbyterian Church of North America.</p> <p>The facts under which the controversy arose are as follows:—</p> <p>Samuel Hegarty, the decedent, on the 4th of March 1864 made his will, and died March 21st 1864, seised of a large quantity of real estate ; the will was proved April 6th 1864, and letters testamentary granted to Samuel Hegarty — a defendant — one of the executors named in it.</p> <p>By the will he gave to his "wife Lydia all his personal estate and “the proceeds or income of my farms during her life.” “ To the Presbyterian Church at the Cross-Roads as capital stock,” he gave one-fourth the timber on his land ; to the Old School Presbyterian Church one acre and a half of land for a site for a church and parsonage; and if a church should not be built, then for a parochial school. He gave to his adopted daughter Sarah Hegarty 100 acres of land. He gave further to the Old School Presbyterian Church three-fourths of the timber on his other lands, part for building a church or parochial school on the lot devised to the church, and the balance as capital stock to support the church or school.</p> <p>The will further provided :—</p> <p>“ Item 7. I will and bequeath to the Cross-Roads Church, after the death of my wife, one-fourth of all my lands, not already bequest, as an annuity.</p> <p>“ Item 8. I will and bequeath to the Old School Presbyterian Church the other three-fourths of all my lands, after the death of my wife, as an annuity for the support of a church or parochial school on the lot bequest to said church. * * *</p> <p>“Item 10. It is my will that the churches to which I have bequeathed my property shall use in worship Rouse’s version of David’s Psalms exclusively; otherwise I will it to the United Presbyterian Church, under the same restrictions ; their church to be established on the same site above described at the corner of the field; or if'the church or parochial school at this place do comply with my conditions in respect to the use of the Psalms and consequently using the site, and the church at the Cross-Roads do refuse to comply with the conditions of my will in respect to the use of the Psalms, then and in such case I revoke my will in this case of the Cross-Roads Church, and will all property left to said church to the United Presbyterian Church, to be used by them for the building and support of a church, &e.”</p> <p>There was no further residuary bequest.</p> <p>The testator left to survive him his widow, but no issue; he left two brothers, James and William Hegarty, and a sister, Mary, the wife of Henry Whiteside; also the children of three brothers and one sister who were dead; a number of these children were married women, and one of them was a minor who had a guardian, but was not one of the plaintiffs in this bill.</p> <p>On the 19th of February 1869 (Pamph. L. 144), an Act of Assembly was passed “ to expedite the settlement Of the estate of Samuel Hegarty, deceased, and authorize the sale of his real estate.” The act recited the seisin of the decedent, his death without issue, but leaving a wife, the devises to religious societies, &c. It further recited that the devises to the religious societies were believed to be void as failing to comply with the statutes in such case made, and most of the estate was unproductive and expensive; that there being questions as to the title, litigation might result and delay the settlement of the estate, “ and the widow and parties representing the same being desirous of changing the character of the property into personalty,” and “ under the peculiar circumstances the courts having no jurisdiction, and it being desired to leave the question of the rights to said property to be determined by the courts,” it was therefore enacted that the executor, &e., of the decedent be empowered to sell, at “ public or private sale, at his discretion, and for cash or upon time, all the real estate ” of the decedent, and convey to the purchasers, who “ shall hold the same * * * absolutely and free and discharged from any trust or condition under the will aforesaid, and for such estate as the said testator had therein, and free from any liability to see to the application of the purchase-money; and the said Samuel Hegarty, executor as aforesaid, when he shall have made sale of the said real estate, or any portion thereof, and shall have received the purchase-money and conveyed the premises so sold to the purchaser, shall make return of such sale to the Orphans’ Court, of Clearfield county, under oath, describing the property sold, the amount for which it hath been sold, the date of the conveyance, and the name of the purchaser or purchasers; and he shall hold the said purchase-money in trust to pay, first, the expenses of carrying out the provisions of this Act of Assembly ; secondly, to pay the debts of the testator, if any such there be; and, thirdly, to pay over the same to the parties legally entitled thereto under the will of the said Samuel Hegarty, deceased, under the order and decree of the Orphans’ Court of Clearfield county, and not otherwise;” the executor to give bond to be approved by a judge of the Orphans’ Court, &c., before making the sales he shall file in the office of the clerk of the Orphans’ Court of Clearfield county, a bond in ten thousand dollars, with at least two sureties, to be approved by one of the judges thereof, conditioned for the faithful performance of the trust hereby imposed.</p> <p>The bill set out as above stated, and averred that by the Act of April 26th 1855 (Pamph. L. 332, 2 Br. Purd. 1477, pi. 22), relating to bequests to religious and charitable uses, the devises to the churches were void and that the property devised descended to the heirs at law of the decedent; that the executor claiming to act under the authority of the Orphans’ Court had sold about 72 acres of the land of the decedent, being sufficient to pay all demands against the estate, including collateral inheritance tax, &c. They averred that the Act of 1869 was procured without the knowledge of the plaintiffs and against their will, “ is in violation of their rights of private property and is unconstitutional and void.” They further averred that the executor, under the authority of the Act of 1869, had sold about 300 acres of the decedent’s real estate to William Albert, George Albert and Henry Albert for about $8000, and that he was about to sell other real estate of the decedent.</p> <p>The prayers were:—</p> <p>1. That the executor be enjoined from selling and conveying any of the real estate of the decedent under the Act of 1869.</p> <p>2. That the Alberts be enjoined from paying over to the executor any money due on the sales to them till ordered by the court.</p> <p>3. For a decree that so much of the will of the decedent as gives property to the churches or schools having been made within a month of his death was contrary to the Act of April 26th 1855, and void.</p> <p>The answer of the executor admitted most of the material allegations of the bill. Further,</p> <p>The executor averred that several of the tracts of land of the decedent were subject to vexatious, annoying and protracted litigation, which if successful would absorb them; that therefore their actual value was indefinite, and “ the necessity for the early settlement of the estate by sale of the land without warranty, and the substitution of the proceeds therefor, was apparent in the opinion of counsel.” He submitted the question of the devises being void to the court, but averred, under advice and belief, that it would descend to the heirs at law under a cloud on the title by reason of the probate of the will; that the money arising from the sale of the 72 acres had been expended. He averred that the. Act of February 11th 1869 had been procured, with the consent and request of the widow, and under the advice of the counsel of the decedent, who had been such for twenty years, and knew all the difficulties of the titles, in good faith and for the best interests of the estate; the plaintiff did not oppose its passage, but acquiesced in it for a long time, and many of the heirs were content with the action of the legislature.</p> <p>He alleged, under information and belief, that the Act of 1869 was “ not unconstitutional and void, nor is it in the slightest degree violative of the rights of private property, because it does not in any manner attempt to deprive them of any vested right, but simply authorizes the sale of the realty and substitutes the money therefor with the rights of the plaintiffs to their part thereof, under the distributive power of the proper court fully preserved ; because it was the only mode 'by which the title to the said realty could be freed from the difficulties thrown around the title to the lands by the probate and the record of the will of the testator, under which record the legal title thereto had passed away, from the plaintiffs and vested dlsewhere, and they had acquiesced therein from the death of the testator until the filing of this bill, a period of more than six years; because it was for the best interest of the estate that the right and power to sell and dispose of these lands should vest in some one, and that they should at the very earliest moment practicable be disposed of in order to get rid of the complicated questions of location then and now existing, and in order to enable this court having jurisdiction of the subject-matter to distribute the moneys according to law, and to settle all questions of title thereto by the usual and proper proceeding; because it does not change the course of descent of any portion of the realty, or lessen or increase the share of any one of the parties plaintiffs ; because that under the peculiar circumstances surrounding the estate, the bequests and contingencies in the will of the testator, its probate and' record, the prolonged acquiescence therein, the silence of the plaintiffs, and of the religious societies, it became necessary for the executor, to proceed to close up the estate, and this Act of Assembly, as he is advised and believes, is the only mode in which under those circumstances a title to any of the realty could be passed free from taint or doubt; because that no power exists in the courts to substitute money for realty for the purpose of settling questions of distribution; because that upon application to the courts to sell for any purpose within their power, the price obtained would have been vastly less than under this mode of proceeding, for questions both of title and location would depreciate the property; because that under proceedings in partition among the heirs no satisfactory result could be attained by reason of the questions of location, and the uncertainty of title growing out of the same, and because that under all the facts and circumstances surrounding the case it was for the best interests of the estate, and there were no adverse interests to be considered and adjudicated, all of their rights being preserved for settlement before the proper judicial tribunal.”</p> <p>He admitted the sale of real estate to the Alberts for $8000, of which $1000 had been paid.</p> <p>The United Presbyterian Church averred that they were ready to comply with the conditions of the devises, and that, as they believed, the property devised was vested in them; they therefore claimed the property devised, and were allowed to become parties defendant to the bill.</p> <p>A replication was filed, and E. H. Murray, Esquire, appointed examiner and master; he made an elaborate and well-considered report. He found the facts substantially as contained in the bill and answer. He reported also that the devises to the churches were void under the Act of 1855; that the property devised descended to the decedent’s heirs at law, and that it was not such a title as could be affected by the probate of the will. He reported further that the plaintiffs were not within the 7th section of the Act of April 22d 1856 (Pamph. L. 533, 1 Br. Purd. 407, pi. 12, relating to'the conclusiveness of the probate of a will upon realty). The probate is conclusive only upon those who could contest that which is adjudicated by the probate, and that is the execution and not the contents of the will, as in a proceeding where the issue is devimvit vel non: Patterson v. Patterson, 6 S. k R. 55; Kenyon v. Stewart; 8 Wright 179; Warfield v. Fox, 3 P. F. Smith 385.</p> <p>After stating his conclusion that the executor’s appointment as such by the will gave him no control over the real estate after the devises fell, the master proceeded:—</p> <p>“ Was, then, the Act of February 11th 1869 constitutional? While the situation of this estate, at the time this act was passed, was in many respects similar to numerous other cases in which the legislature have interfered, and their action been sustained by the courts, yet it seems to have lacked some of the • essential requisites on which such decisions of approval have in each case been passed. The master, after careful review of the authorities cited by both of the solicitors, is unable to find any case where a private act authorizing sale by the executor of decedent — the heirs the absolute owners — their consent wanting — no provision in the act itself to obtain their consent prior to sale or delivery of deed — the relation of trustee not existing, and the claimants of full age at the time the act was passed — no provision in the act itself subjecting the whole proceeding of sale to the control and supervision of the Orphans’ Court — has been sanctioned by the Supreme Court, when the objection was raised by the heirs, they being absolute owners. On the other hand, some one or more of these conditions have several times been the cause of defeat of such Acts of Assembly.</p> <p>“ The Act of February 11th 1869 authorizing sale of the real estate of Samuel Hegarty, deceased, is such an act as the Supreme Court, guided by the principles laid down in Constitution of United States; Amendments, art. 5; Constitution of Pennsylvania, art. 9; Norris v. Olymer, 2 Barr 284; Brown v. Hummel, 6 Id. 86; Biddle v. Starr, 9 Id. 461; Ervine’s Appeal, 4 Harris 256; Ker v. Kitchen, 5 Id. 489; Kneass’s Appeal, 7 Casey 87; Menges v. Bentler, 9 Id. 495, and many other authorities, would declare unconstitutional and void. Therefore, the authority which it confers upon Samuel Hegarty, executor, to control and dispose of complainants’ interests in real estate of Samuel Hegarty, deceased, is invalid and illegal, and the complainants’, rights to the present control and disposition of their real estate is not affected by the said Act of Assembly.” * * *</p> <p>Exceptions filed to the report, were overruled by the court (Mayer, P. J.), and the following decree made:—</p> <p>“ That so much of the will of Samuel Hegarty, Sr., deceased, as bequeaths property, either real or personal, to the Presbyterian Church at Cross Hoads, the Old School Presbyterian Church, the United Presbyterian Church, and any other church or school in said will mentioned, having been made for religious or charitable uses, within less than one calendar month, to wit, seventeen days before the decease of said.testator, is contrary to the Act of Assembly of Pennsylvania, entitled ‘An act relating to corporations and to estates held for corporate, religious and charitable uses,’ approved April 26th, A. D. 1855, is hereby declared and adjudged to be unlawful and void.</p> <p>“ That the Act of the General Assembly of Pennsylvania, approved February 11th, A. D. 1869, entitled ‘ An act to expedite the settlement of the estate of Samuel Hegarty, &c.,’ * * * having been passed without proper consent or authority from many of the heirs or persons interested in the estate of said Samuel Hegarty, deceased, being persons over twenty-one years of age and owners in their own right of their respective interests in said estate, especially Mary Whiteside, James Hegarty, Jane Jordan, John M. Jordan (assignee of George Hegarty), Henry Hegarty, Joseph Hegarty, Mary Jane McCullough, Louis McCullough, Matilda Bell and Agnes Bell, the said Act of February 11th 1869, so far as respects the interests of said persons and of all others in like situation, in said estate, is hereby declared and adjudged to be unlawful and void.”</p> <p>The decree also enjoined the executor from selling and conveying any of the decedent’s lands and from completing any sales theretofore made.</p> <p>Samuel Hegarty appealed to the Supreme Court, and assigned the decree for error.</p>