Volume 76 — Pennsylvania State Reports

<p>1. An Act of Assembly enacted that no one should be eligible to the councils of Philadelphia who at the time of his election held “ office or employment” under the state. A notary public was elected to the councils. A quo warranto to oust him was issued on the suggestion of private relators ; pending which an act was passed declaring that the meaning of the first act was not to prevent a member of councils from holding the office of notary public at the same time and that no member of the present councils should be disqualified on account of being a notary public nor should he be removed from the councils for such disqualification. Held, That the latter act was constitutional.</p> <p>2. The act simply modified the charter of a municipal corporation over which the legislature has control and did riot interfere with any vested right.</p> <p>3. The act concerned the public and did not interfere with the proper functions of the court nor override the judiciary.</p>

<p>A testator gave to his wife in fee a house and lot, “ being the value of what I have received of her property,” also a house, &c., for life, “ with the furniture, horses, carriages, plate, &e.” Also an annuity of §4500 for the “ support of herself and the board of our children during their minority.” The residue “ of my estate I give, devise and bequeath to all my children, who shall then be living, to hold to them, their heirs and assigns, equally to be divided among them, share and share alike, as tenants in common, and not as joint tenants, for ever.” He appointed his wife guardian of the persons and a friend guardian of the estate of his children. Held, upon the whole will, that “ then” in the residuary clause referred to the death of the testator, and that children of his children who died in the life o'f the widow, took what would havp been their parents’ share of the residue.</p>

<p>Error to the District Court of Philadelphia: No. 236, to January Term 1872.</p> <p>This was a scire facias on a mechanics’ lien, issued March 16th 1866, by John C. Hunter and others, trading as John C. Hunter & Co., against Charles Lanning, contractor, and Cyrus Cadwalader, owner.</p> <p>On the 14th of November 1865, the plaintiffs entered a mechanics’ lien against Lanning as contractor, and Cadwalader as owner, the claim being for $622.09.</p> <p>On the 21st of April 1866, an affidavit of defence was filed, and on the 8th of September 1866, the defendants pleaded: the issue was tried before a jury April 6th 1870, and a verdict rendered for the plaintiffs for $547.74. On the 28th of June 1870, a new trial was granted. On the 2d of October 1871, the defendants filed a special plea, to wit:—</p> <p>“ That plaintiff ought not to have and maintain the aforesaid action against defendant, because he says that more than five years have elapsed since the filing of the above claim and the issuing of the above writ, and no judgment has been entered therein, whereby the lien of both the claim and the scire facias above recited are gone,” &g.</p> <p>On the same day the plaintiffs replied: “ That a scire facias upon the said claim was duly issued within the period of five years from the filing of the said claim,, and several times after issue joined upon the pleas filed by defendant, of non assumpsit, payment, and set-off with leave, &c., the said defendant obtained continuance of the trial of the said case, and sci. fa. issues upon their own application for cause, that the sci. fa. was tried before a jury, and a verdict rendered for the plaintiff on the 5th April 1870, and that a new trial was awarded to the defendant, who subsequently, at another term of the said court, obtained another continuance of the same. So that the plaintiffs are not in default, and have not ceased to prosecute the same to judgment,-except by the acts of the said defendants themselves. And this they pray may bo inquired of by the court and the record.”</p> <p>The defendants demurred to the replication, that “ there is no averment in the said replication that any judgment has been obtained within five years from the issuing of the said writ.”</p> <p>The court gave judgment for the defendants on the demurrer.</p> <p>The plaintiffs took a writ of error and assigned for error the entering of judgment for the defendants.</p>

<p>1. A testator gave the residue of Ms estate to his executor in trust for his son and daughter “ and to their issue as follows: one half being the share of my said son, to be invested, the net income only to be paid to and applied by his guardian as far as necessary for his education and maintenance, and the principal with any accumulations that may have accrued thereon to be paid to him on attaining twenty-one years." In case of his death before twenty-one leaving issue, to be kept in the same way, the income to be paid to their guardian for their education and maintenance and the principal and accumulations to go to them at twenty-one years. If he died without issue in his minority his share to go to the daughter. The share of the daughter was disposed of in the same way. In case of the death of both under age and without issue to go to testator’s next of kin. By a codicil he directed the income of his share to be paid to his son until he attained thirty years and then the principal and arrears of interest to be conveyed to him absolutely, but if he should die before thirty without issue his share to go to his daughter absolutely. The daughter died in the life of the testator after the date of .the codicil. Held, that the daughter’s share went to the son under the restrictions of the codicil and vested in the trust until the time fixed for payment to Matthew.</p> <p>2. The daughter’s share passed to the son under the will and the bequest to both passed to him as an entirety.</p>

<p>1. A fund in court arising from a sheriff’s sale was referred to an auditor for distribution to report at the next term; his report was ready for filing, when on application of creditors whose claims had been rejected, the time for reporting was extended. Further testimony was taken generally, on which the auditor made a report different from the first. Held, that by the reference back, the whole ease was re-opened and all the parties were bound to take notice of it.</p> <p>2. A furnace on a new plan was built, its air and water-pipes were laid, but the connections not made ; the furnace was put into operation, worked for a time and then blown out on account of defect in its plan and construction. Money was then raised on a mortgage by which all the mechanics’ claims then due except one, were paid. Other work was done, altering the construction, building new kilns, &c. Held, that under the circumstances in the case, the building was finished at the date of the mortgage and the liens for work after that time were postponed to the mortgage.</p> <p>3. The lien for the unpaid claim was not entered for more than six months after the first completion of the furnace. At the hearings before the auditor and the court below, it was treated as a lien subsisting before the mortgage and as such was allowed in the distribution ; no exception was taken to its allowance. The Supreme Court treated it as a subsisting lien at the sheriff's sale and prior to the mortgage, and held, that the sheriff's sale therefore divested the mortgage.</p>

<p>Appeal from the Court of Common Pleas of Northampton county: No. 308, to January Term 1874. In the distribution of the proceeds of the sheriff’s sale of the real estate of Jacob Schweitzer.</p> <p>The facts in this case were as follows:—</p> <p>On the 25th of April 1871, judgment was entered in the Court of Common Pleas of Northampton county in favor of Jefferson Schweitzer against Jacob Schweitzer for $575.02, on a note dated April 1st 1871, with short warrant of attorney to confess judgment written under the note, so that it could not be detached from it. Neither the note nor warrant of attorney was filed in the prothonotary’s office, but in accordance with the uniform practice in Northampton county after judgment had been entered, an endorsement of the entry was made on the note and it ivas re-delivered to the obligee.</p> <p>On the 12th of May 1871, George E. Schweitzer and Jefferson Schweitzer made a note payable in ninety days to Abraham Fraley for $400, being for money then lent to George C. Schweitzer by Fraley, and as collateral security for this note, Jefferson Schweitzer gave Fraley the judgment note of Jacob Schweitzer in his favor; the judgment note was not transferred by any writing, but was handed to Fraley to be held as collateral security. No entry was made on the record that the judgment on the note was for the use of Fraley, or that the note was held by him as collateral security.</p> <p>On the 2d of August 1871, Christian Nagle made a loan to Jefferson Schweitzer, who at the same time executed a writing assigning the judgment against Jacob Schweitzer as collateral security for the money so lent, the note with the warrant still being in possession of Fraley. On the 17th of January 1872, this assignment was noted on the record of the judgment in the prothonotary’s office as follows:—</p> <p>“And now January 17th 1872, as per instrument in writing under the hand and seal of the plaintiff produced here this day the above judgment is assigned, transferred and set over unto Christian Nagle as collateral security.”</p> <p>The real estate of Jacob Schweitzer was sold by th'e sheriff; out of the proceeds a sum sufficient to pay his note to Jefferson Schweitzer was paid into court and William Mutchler, Esq., was appointed auditor to report distribution. He reported awarding the fund in court to Christian Nagle. The Court of Common Pleas (Longaker, P. J.) having confirmed his report and decreed the fund to Nagle, Fraley appealed to the Supreme Court and assigned the decree for ei'ror</p>

135. This was an action of trespass d. b. a., brought October 9th 1858, by John M. Leonard against George R. Dillon, John Davis and others, for seizing and selling five colts, the property of the plaintiff. The facts in the case were as follows :— • Davis, one of the defendants, on the 15th of October 1856, recovered a judgment by default before O. P. Wilder, a justice of the peace, against Leonard, the plaintiff, for $72.

357, to January Term 1873. This was an action on the case, brought November 24th 1871, by John A. Dale against- The Pennsylvania Railroad Company, to recover damages for injuries which he had sustained in consequence of the collision of two trains of the defendants on their railroad. There was no question made as to the liability of the defendants for damages for the injury; the questions were as to the evidence and the elements which should enter into their computation.

<p>Appeal by A. H. Barnes, assignee in bankruptcy of George H. Williams, from the Court of Common Pleas of Warren county: Of January Term 1874, No. 283. In the distribution of the proceeds of the sheriff’s sale of the personal property of Williams.</p> <p>On the 2d of July 1873, Samuel P. Johnson obtained a judgment in the Court of Common Pleas of Warren county, against Williams, who was then a tenant of E. N. Lacy of a mill property. On the same day an execution was issued on this judgment; the writ went into the sheriff’s hands on the same day. On the 26th of July, Williams filed a petition to be declared a bankrupt, and on the same day he was adjudged a bankrupt. On the 29th of July a levy under Johnson’s execution was made on personal property on the leased premises and on the same day, Lacy notified the sheriff that he claimed to receive from the sale $>630.81 the amount of rent due him. On the 6th of August the goods were sold by the sheriff and after payment of Johnson’s execution there remained $642.14, which was brought into court on the 23d of August; and September 8th, I. S. Alden, Esq., was appointed auditor to report distribution.</p> <p>On the 22d of September A. H. Barnes was appointed assignee in bankruptcy of Williams. The auditor, after deducting the expenses of the audit, awarded the remainder to Lacy the landlord in payment of his rent. Barnes, amongst other exceptions, filed the following to the report of the auditor.</p> <p>3. The auditor erred in finding that the rent due E. N. Lacy from George H. Williams at time of levy in the above case was a lien on the property sold by virtue of the above writ found on the demised premises; such a lien as was not affected by the proceedings in bankruptcy of George H. Williams.</p> <p>4. The auditor erred in finding that E. N. Lacy is entitled to the fund now in court against the assignee of the estate of George H. Williams, bankrupt, for the reason that on the 26th day of July 1873, the time when the said Williams was .declared bankrupt, Lacy had no such lien as gave him the right to the fund realized from the sale of property levied upon July 29th 1873, upon which day notice was first served upon the sheriff by Lacy to retain the amount due him, &c., as per notice filed with report.</p> <p>The Court of Common Pleas (Vincent, J.) overruled the exceptions and decreed distribution in accordance with the auditor’s report.</p> <p>Barnes appealed to the Supreme Court and assigned the decree of distribution for error.</p>

78. The proceeding in this case was an attachment execution, issued February 22d 1872, at the suit of P. T. Dickinson, to the use of William G. Grant & Son, against Peter Dickinson, with clause of scire facias to George S. Good as garnishee. The judgment on which the attachment was issued was entered January 30th 1869.

92, to January Term 1874. This was an ejectment brought November 29th 1870, by Andrew Pentz against William Corley, William C. Smith and others, for ninety acres of land in Brady township, “ being that part in timber and not yet cleared of the tract of one hundred and thirty-nine acres, where the said Andrew Pentz lives,” &c. ' The case was tried November 19th 1872, before Mayer, P. J. The plaintiff’s title was admitted; he then gave the writ in evidence and rested.

203. This was an action of trespass quare clausum fregit, for cutting and carrying away timber and timber trees contrary to the Act of Assembly. The writ was issued February 17th 1871, at the suit of L. F. Watson against Benjamin Rynd and others, under the 3d section of the Act of March 29th 1824, 8 Sm. Laws 283, 2 Br. Purd. 1397, pi. 2.

<p>Error to the Court of Common Pleas of Olinton county: No. 42,. to July Term 1873.</p> <p>This was an action of assumpsit, brought May 8th 1868, by Jacob D. Melick and Joseph Eves, trading, &c., as Melick & Eves, against O. D. Satterlee.</p> <p>The declaration was for money lent, money paid, laid out and expended; money had and received; work and labor and materials found and provided; goods sold and delivered, and account stated. There were no special counts. The pleas were non-assumpsit and payment, &c.</p> <p>The case was tried December 18th 1872.</p> <p>The plaintiffs gave evidence that they were engaged in cutting logs in Clearfield county; the logs were floated down the Susquehanna to the booms at Lock Haven or Williamsport. The defendant lived at Lock Haven, and had a saw-mill there. Plaintiffs made an arrangement with him to saw their logs which stopped at the Lock Haven boom, at $4 per thousand feet. Defendant received a large number of logs from plaintiffs. The amount of lumber passed from them to him was 316,992 feet.</p> <p>They gave evidence also that they had sold all this lumber to J. M. Bowman; defendant delivered to him as the lumber sawed for plaintiffs, 286,034 feet, and no more, being 30,958 feet less than the amount sawed. Plaintiffs demanded the remainder of the lumber from defendant, who told them that all their lumber was gone. There was no other evidence of negligence on the part of the defendant, nor of conversion by him.</p> <p>The defendant gave evidence for the purpose of showing that he had exercised proper care and diligence as to the lumber; also that lumber generally falls short from 1 to 5 per cent, in the count, when taken away; some is broken and some worthless; “ there is a continual waste and leak; neighbors help themselves,” &c.</p> <p>The court instructed the jury: “ [That the defendant was a bailee of the lumber in question; and after it was sawed into boards and piled in the yard, he was bound to the exercise of the same care over it as a prudent business man ordinarily takes of his own property similarly situated. If for want of such care the plaintiff’s lumber, or any portion of it, was lost, the defendant would be liable for it.] If, however, the ordinary per cent, of waste, and the losses resulting from causes against which such care as defendant was bound to exercise, would not guard, will account for the whole or any portion of the deficiency claimed for in this case, the jury should give the defendant the benefit of it.</p> <p>[“ No other proof of negligence or conversion has been given in this case than that which grows out of the proof of the quantity of lumber sawed and the quantity delivered. This, however, makes a prima, facie case, and puts defendant on proof of the care exercised.]</p> <p>[“We are not without doubt as to whether under a count for goods sold and delivered, or money had and received, a recovery ought to be permitted on the evidence in this case, but we instruct you that the narr. is sufficient, and that the case is for you upon the evidence.”]</p> <p>The verdict was for the plaintiffs for $657.99. The defendant took a writ of error,- and assigned for error the parts of the charge in brackets.</p>

<p>Error to the Court of Common Pleas of Snyder county: No. 32, to July Term 1873.</p> <p>This was an action originally brought in the Court of Common Pleas of Northumberland county, by Joseph Yankirk against the Pennsylvania Railroad Company. The writ was issued October 28th 1869. The defendants issued a praecipe for the removal of the cause to another county, as follows:—</p> <p>“And now, March 30th 1872, the above defendant elects and determines to remove the above-stated case and all proceedings relating thereto, from the Court of Common Pleas of Northumberland to the Court of Common Pleas of the adjoining county of Union, through which said county of Union the Philadelphia and Erie Railroad does not pass, in accordance with the provisions of the Aot of Assembly in such case made and provided; and the prothonotary of Northumberland county is hereby directed to certify the record and all proceedings in this case to the Court of Common Pleas of Union county.</p> <p>“ Prank Thompson, being- duly sworn according to law, did depose and say that he is the superintendent of the above-named defendants, on the eastern division of the Philadelphia and Erie Railroad, where the alleged act complained of in this case is said to have occurred, and that the removal of the above-stated case to the county of Union is not for the purpose of delay, but because a fair and impartial trial cannot be had in the said county of Northumberland, through which said railroad passes.”</p> <p>The plaintiff objected to the removal because—</p> <p>1. The affidavit to the praecipe was not' made by the president or any officer of the company.</p> <p>2. The praecipe designates the county, which it is^the duty of the president judge to do.</p> <p>The court (Rockefeller, P. J.) made the following order:—</p> <p>“April 1st 1872. The first objection overruled, and the second objection is sustained, and Snyder county is indicated by the president judge for the trial of this cause, under the provisions of the Act of April 25th 1870” (sect. 2, Pamph. L. 1292, 2 Br. Purd. 1164, pi. 8).</p> <p>The plaintiff excepted to this order, and a bill of exceptions was sealed.</p> <p>The cause was accordingly certified to the Court of Common Pleas of Snyder county.</p> <p>The declaration in the first count was that the defendants were the owners of the Philadelphia and Erie Railroad, and that the plaintiff “became a passenger” in one of their cars, to be carried from Northumberland to Williamsport, and for a “reasonable hire” they undertook to carry him from Northumberland to Williamsport, and carried him part of the distance “ to a certain wild and desolate place between said places, * * * far distant from any shelter, public road or highway,” and refused to carry him any farther, and “ wantonly, in an insulting manner, and without any just or legal cause,” ordered him, “ during a violent storm and rain, * * * to quit and leave the car, * * * threatening him that if he did not at once quit and leave the car, * * * he would be immediately ejected;” and that he, “to avoid being violently thrown and dashed from the said car, * * * * and under the compulsion aforesaid, quit and left the car.” The declaration averred that plaintiff was “ grossly insulted, outraged and injured, and was obliged to travel on foot through mud and mire” seven miles to Williamsport, and for four hours was exposed to the storm, “ and was greatly wearied, fatigued, sore, wet and chilled, and his clothes * * * wet and greatly spoiled, and his health greatly endangered and impaired.”</p> <p>The second count was that the defendants undertook to carry plaintiff from Milton to Williamsport; in other respects it was substantially as the first count.</p> <p>The case was tried February 26th 1873, in the Common Pleas of Snyder county, before Bucher, P. J., when it was admitted that the defendants were the lessees of the Philadelphia and Erie Railroad.</p> <p>For plaintiff, Z. B. Glines, a conductor, testified that plaintiff got on his train with a ticket from Northumberland to Williams-port; lie rode to Milton; he got off the train there and was not on it afterwards; witness took plaintiff’s ticket, cancelled or punched it and handed it hack to him.</p> <p>On cross-examination, defendants proposed to ask witness “what was printed on the face and back of the ticket.”</p> <p>The plaintiff objected “that no notice had been given to produce the ticket, and no proof that search had been made for it.”</p> <p>The court admitted the question, because the plaintiff bad examined tbe witness as to tbe contents of tbe ticket, and defendants, in cross-examination, might ascertain tbe character of tbe ticket. A bill of exceptions was sealed for plaintiff.</p> <p>Witness said: Tbe tickets were printed with tbe number of tbe station on tbe back, every station having a number; conductors’ orders were, when a ticket was presented, to punch out tbe numbers of tbe starting-place to tbe place of destination. Northumberland was 89, Williamsport 78; be punched out on plaintiff’s ticket “ 89 ” and “ 78,” when it was given to him, and then returned it to plaintiff. “ When tbe numbers are so punched outtbe ticket is cancelled. This was done between Milton and Northumberland.” Plaintiff did not ask witness to mark tbe ticket, so that he could get off at Milton and ride on it again. A general collection of tickets is made west of Muncy; tbe ticket was handed back to be taken up west of Muncy; tickets east of Muncy were lifted as presented.</p> <p>Tbe plaintiffs then offered tbe deposition of Jacob Hine, who in it testified, that in May 1867, be went on tbe train from Northumberland to Williamsport, and that plaintiff was on tbe same train; tbe train suddenly stopped along tbe mountain between Muncy and Williamsport, it was “ storming and raining badly at tbe time; after tbe train started witness saw plaintiff standing on tbe side of the road; there was no station or crossing nor public road near.” Westfall was tbe conductor of this train. When witness was at tbe Northumberland station be saw plaintiff buy a ticket from A. Hawley, agent of defendants, from Northumberland to Milton.</p> <p>Plaintiff proposed to ask witness whether be did not hear Hawley tell plaintiff that tbe ticket which be had previously purchased and rode on to Milton was good from Milton to Williamsport, and that be need only purchase a ticket from Northumberland to Milton, and whether he saw plaintiff show tbe ticket be bad previously purchased to Hawley.</p> <p>This question was objected to by defendant at tbe taking of tbe deposition.</p> <p>Tbe witness answered: “ I beard Mr. Vankirk ask Mr. Hawley bow it was about tbe ticket be bad purchased a few days before to go to Williamsport, and on which be had ridden as far as Milton. Mr. Hawley said be supposed that if be bad ridden no farther than Milton on it, it would be good unless it was cancelled. I saw Mr. Yankirk hand Hawley a ticket; he examined it and said, 1 Milton is only punched off, it is good from Milton up.’ Mr. Hawley told Mr. Yankirk he should buy a ticket to Milton, and the other would be good from Milton up. I was employed by the telegraph company at the time, on the train looking after the wires. I did not see the ticket shown by Yankirk to Hawley so as to see what was on it. Mr. Hawley was in the office and I was sitting by the door. I have stated the conversation as well as I can recollect.”</p> <p>On the trial, on objection by the defendants, the court excluded this answer and sealed a bill of exceptions for the plaintiff.</p> <p>Plaintiff renewed the offer of the deposition, to be followed with evidence that the defendant carried the plaintiff on the cars past four regular stations beyond Milton towards Williamsport, and compelled him to get out of the cars at a place several miles distant from any public road or . shelter, at a time when it was storming and raining very hard, and that plaintiff at the time was aged sixty-eight years ; and also that the conductor took the punched ticket from Northumberland to Williamsport and refused to give it back to the plaintiff, and that plaintiff before being put out of the cars offered to pay the conductor the fare from Milton to Williamsport if the conductor would return him his ticket, which the conductor refused to do, and insisted ■ upon plaintiff getting out unless he would pay his fare from Milton to Williamsport without giving his ticket back, to be followed with proof that ho was on the cars believing that he had a right to ride on the ticket that he had showed to Hawley, the agent of defendant, at Northumberland, as disclosed in the deposition.</p> <p>The court rejected the offer and sealed a bill of exceptions for the plaintiff.</p> <p>The plaintiff then gave in evidence the deposition of J. B. Riley. He testified that he was on the train when plaintiff was put off; it was along the mountain between Muncy and Williamsport, there was no station where he was put off; it was a stormy day; the conductor and plaintiff had considerable talk ; the conductor said plaintiff would have to pay his fare or he would put him off the train; plaintiff said he had paid his fare once and that the conductor had his ticket; the conductor said it had been ridden out; plaintiff said it had not. Witness offered to pay plaintiff’s fare; he declined, saying that he had paid his fare once and had the money to pay it, but the fare was paid. Before plaintiff passed down the steps of the car he said to the conductor, “ Give me back my ticket and I will pay my fare.” The conductor said he had had trouble enough about the matter. Witness did not see the conductor touch plaintiff. Plaintiff would not let witness pay nor would he pay himself, but when he was on the platform, he said he would pay if the conductor would give him back his ticket.</p> <p>Plaintiff testified that he purchased a ticket from Northumberland to Williamsport from Hawley, the agent, at Northumberland; Re rode to Milton; he got off there on business and returned to Northumberland; Grlines, the conductor, punched his ticket and handed it back to him.</p> <p>It was then proposed to ask him whether he knew what punching a ticket meant.</p> <p>The defendants objected to the question; the court rejected the offer and sealed a bill of exceptions.</p> <p>It was proposed to ask plaintiff, whether he got into a train at a subsequent day to ride from Milton to Williamsport, in good faith believing he had a right to ride on the old ticket for the distance he had not previously ridden upon it: offered for the' purpose of showing that he was honestly on the train and that they had no right to put him off.</p> <p>The offer was rejected by the court and a bill of exceptions sealed.</p> <p>Plaintiff testified that he bought a ticket from Hawley from Northumberland to Milton. It was then proposed to ask him whether he showed the punched ticket to Hawley when he bought the new one,-and what Hawley said about its being good from Milton to Williamsport.</p> <p>The defendants objected to the question; it was rejected by the court, and a bill of exceptions sealed.</p> <p>Plaintiff further testified that, after the train left Northumberland, he gave his ticket to Milton to Westfall, the conductor. “ I then showed him the other. He said I could not ride on the old ticket in that train. I told him I would ride on this road, for my ticket was good. I told him Grlines had punched it and I did not know what it meant. I told him I had only ridden to Milton on it. I pulled out my business card and offered it to him; told him 'that Grlines knew me, and if anything was wrong, he would make it right. He paid no attention to it and walked off; he never spoke to me after that until he came round above Muncy for the tickets. He passed me several times, but never spoke to me. He passed me several times after the cars left Milton. Beyond.Muncy he came round and took my ticket; he looked at it and said I must pay of get off. I told him my ticket was good. I would not pay twice. He said if I did not he would put me off. Mr. Riley behind me got up and said, ‘ Don’t put the old man off in the storm; I will pay his fare.’ I thanked Riley, and said ‘ my fare is paid. I have money enough to pay my fare myself, but my fare is paid.’ The conductor rang the bell. He was stopping the train, and I told him if he would give up my ticket I would pay the fare. He refused to do so, and opened the door and ordered me out, and said he would put me out if I did not go.”</p> <p>Plaintiff offered to prove that it was storming very hard, he had to walk to Williamsport in the mud.and rain, and was injured in health by the exposure; that he was sixty-eight years old at the time; that there was no road except the railroad anywhere near; no shelter but along the White Deer mountain; that he was exposed to the laughs and jeers of the passengers. This offered to show how badly defendant acted to him, and to prove the damage he sustained.</p> <p>Defendants objected to the offer; it was rejected by the court and a bill of exceptions sealed.</p> <p>On cross-examination he said:—</p> <p>“ The conductor came round and collected the tickets just as the train started to Milton. He then took up the ticket to Milton. Then I showed him the ticket upon which I had previously ridden to Milton and which was punched. He did not. tell me then that I would either have to buy another ticket at Milton, or leave the train.”</p> <p>The plaintiff having closed, the defendants examined Westfall the conductor. His testimony as to the occurrences on the train did not differ materially from that of the plaintiff’s witnesses.</p> <p>Amongst other things, he said that he kept the ticket because he understood the plaintiff was going to bring suit.</p> <p>The court charged:—</p> <p>“ The evidence upon which the plaintiff relied to sustain this action, has been excluded by the court, to which action the plaintiff has taken exception. If the court was wrong in their action, our superiors, the Supreme Court, will apply the remedy. There are no disputed facts in the case for you to pass upon as we apprehend, and we therefore instruct you to find for the defendants.”</p> <p>The verdict was for the defendants.</p> <p>The plaintiff took a writ of error.</p> <p>He assigned for error:—</p> <p>1. The order of the Court of Common Pleas of Northumberland county removing the case to Snyder county.</p> <p>.2. Admitting evidence by dines of what was printed on the face and back of plaintiff’s ticket.</p> <p>3. Rejecting evidence that Hawley, the ticket agent, said when plaintiff bought the second ticket that the first ticket was good from Milton to Williamsport.</p> <p>4. Rejecting evidence that defendants carried plaintiff past four regular stations beyond Milton, and compelled him to get out of the cars at a desolate place, &e.</p> <p>5. Rejecting the question whether plaintiff knew what punching the ticket meant.</p> <p>6. Rejecting the question whether. plaintiff, on the second “ride,” entered the car in good faith, believing he could ride on the first ticket for the distance on which he had not already ridden.</p> <p>7. Rejecting the question whether plaintiff showed the punched ticket to Hawley, the. agent at Northumberland, when he bought the new one, and what Hawley said about its being good from Northumberland to Williamsport.</p> <p>8. Rejecting offer to prove that it was storming when plaintiff was put off, that he had to walk to Williamsport in mud and rain, and that his health was injured thereby, &c.</p> <p>9. The charge of the court.</p>

<p>1. On the face of a note on a printed form, made by Erey payable to the order of Mishler at the bank of Reed, “ without defalcation for value received was, “ credit the drawer,” which was not signed by Mishler. The note was endorsed by him, discounted by Reed and the proceeds passed to the credit of Erey. In an action by Reed against Mishler, evidence by him that it was an accommodation note, that he declined to endorse unless the proceeds went to his credit, and declined to sign under “ credit the drawer,” and endorsed with the understanding that the proceeds were to go to his credit, was inadmissible without notice to Reed of these facts when he discounted the note.</p> <p>2. Reed discounting the note without knowledge that Mishler was to control the proceeds, was a bonfi, fide purchaser for value and could not be affected by an understanding between Mishler and Erey.</p> <p>3. Not subscribing “credit the drawer,” was not notice to Reed, but in connection with the endorsement was evidence that the parties did not intend to use it according to the printed form.</p> <p>4. That the note was in the possession of the maker before due, was not evidence that he had paid it.</p> <p>5. Eckert v. Cameron, 7 Wright 120, recognised.</p>

<p>Error to the Court of Common Pleas of Lancaster county: Of May Term 1874, No. 19.</p> <p>This was an action of assumpsit, brought January 25th 1872, by C. W. Kreiter to the use of Isaac F. Bomberger, against S. C. Miller and A. H. Reist, on a joint and several non-negotiable note, dated January 9th 1871, payable to Kreiter in one year for $2000. The defendants pleaded payment with leave, &c., and set-off.</p> <p>The defendants and Kreiter had been in business together as partners, and, on arranging their business, this note was given by the defendants to Kreiter for his interest in the firm. It was agreed at the same time that notes in the Inland Insurance Company or any other institution which Kreiter had drawn in the name, of the firm and used the money himself, should be set off against this note which was drawn non-negotiable to enable the set-off to be made. Kreiter assigned this note to Bomberger, the use-plaintiff, by the following endorsement on it:—</p> <p>“ I hereby transfer my right, title and claim to the within note to I. F. Bomberger, for the consideration as collateral security, for endorsing me on a note discounted in the Litiz Deposit Bank.</p> <p>“ C. W.. Kreiter.”</p> <p>The set-off above mentioned was conceded'on the trial, and there then remained $675.34 due on the $2000 note.</p> <p>To this balance the defendants claimed to make a further set-off arising from the following note:—</p> <p>“ Lancaster, April 8th 1871.</p> <p>“ Sixty days after date, I promise to pay to the order of John S. Hostetter, thirteen hundred dollars, at the First National Bank of Lancaster, without defalcation, for value received.</p> <p>“ C. W. Kreiter.</p> <p>“ Credit the drawer, 1 “ John S. Hostetter. j</p> <p>“ Endorsed — John S. Hostetter, A. H. Heist.”</p> <p>Protested for non-payment, June 10th 1871.</p> <p>This note passed into the hands of A. S. Bard, who brought suits on it against Kreiter, Hostetter and Reist; and on the 6th of April 1872, recovered judgment in each suit for $1366.46. Reist paid the amount of this judgment. The judgments against Kreiter and Hostetter were assigned to him May 20th 1873, and that against himself marked satisfied.</p> <p>On the trial, August 30th 1873, before Hayes, J., the foregoing facts appeared in evidence. Isaac F. Bomberger testified also: “I had been endorser for C. W. Kreiter on two notes — one for $1500, and one for $2000, and also guarantied a check for $850. I refused to endorse any longer unless he would give me some collateral security; he was then solvent; had real and personal property ; he may have been insolvent, but he owned a good deal of property; he was not sold out; he came to me with this note signed by A. H. Heist and S. C. Miller; represented, or said this note represented, his interest in a liquor store in Lancaster, of which he was a partner with Miller & Reist; said he -was still a partner, and the word order was left out because he was a silent partner. I paid nothing additional, hut I guarantied a check at the time this note of Miller & Reist was transferred to me. This transfer was written at the time the note was given to me.”</p> <p>The court, after stating the facts, charged:— * * *</p> <p>“ The difficulty depends upon the claim of set off in relation to the debt due from C. W. Kreiter to A. H. Reist, which the defendants claim to set off in this action, together with the notes paid to the Inland Insurance and Deposit Company. With respect to the latter there is no longer any dispute, it being conceded that the defendants are entitled to set off them; but it is objected to the note left for collection with the First National Bank, and which A. H. Reist, being an endorser, has paid for C. W. Kreiter, that it cannot be a proper subject of set-off in this case, which is a suit against two defendants, and the other was in no way responsible for this note, and the debt due from the plaintiff on that account is to the other defendant. [A set-off in general cannot be claimed by one of two or more defendants in the same suit for a debt due to one only, which, being this case, defeats the claim as to this note, if there be nothing to make it an exception to the rule— some superior equity in A. H. Reist’s claim over and above that of Isaac F. Bomberger.] [Again, the set-off must depend upon the condition of the claim at the time of the suit brought; it must have existed at that time. In this case A. H. Reist had not paid this note when the present suit was brought, but paid it more than a year afterwards.]</p> <p>“ I am, therefore, of opinion, that [unless the jury believe, on a review of the transactions of these parties, that the defendant, A. II. Reist, has some equity superior to that of Isaac F. Bomberger, the real plaintiff, his claim to set off the note left with the First National Bank cannot be maintained, more especially as he acquired the claim long after this suit was brought.”]</p> <p>The verdict was for the plaintiff for $675.34.</p> <p>.The defendants took a writ of error, and assigned for error the parts of the charge in brackets.</p>

<p>1. In distribution of the proceeds of a sheriff’s sale of real estate, the costa of the sale should be first paid and then the liens divested by the sale paid according to their priority.</p> <p>2. The costs thus preferred do not include those made in obtaining the judgment, but commence with the issuing the execution to effect the sale.</p> <p>3. Land was sold on executions but the proceeds were insufficient to pay prior liens. Held, that officers’ fees for services prior to issuing the executions could not be paid out of the proceeds. They stood on no higher ground than the judgment to which they were attached.</p>

55. This was an action of debt brought February 21st 1871, by Mary Taylor against Simon Brubaker, administrator, &c., of Francis Brubaker, deceased. The cause of action was the following note:— “ Three months after date, I promise to pay to Mary Taylor the sum of thirteen hundred dollars, lawful money of Pennsylvania currency, without interest, for value received. My hand and seal this 1st day of January 1852. Francis Brubaker, [seal.]” .

43. On the 14th of June 1870, Abraham M. Frantz and Mary Ann his wife to her use brought an action of debt against Abraham Scheetz and Jacob F. Warfel.

102. In the distribution of the estate of Elias Redcay, deceased.

<p>1. Executors petitioned the Orphans’ Court for authority to mortgage for the payment of debts; legatees without filing an answer, appeared by attorney and objected ore terms to granting authority, the court awarded a rule to show cause why the authority should not be given, which was made absolute. Held not to be proper practice.</p> <p>2. The Orphans’ Court is a court of equity within its limits ; its proceedings should have the substance of equitable form; by petition, answer and replication in which the requisites making the case should appear.</p> <p>3. A testator devised all his real estate and gave a number of legacies; the inventory showed fifteen bonds payable to him at distant periods without interest; the amount of his debts exceeded his personal estate exclusive of the bonds; with the bonds it would pay the debts. Held, that under the cir cumstances a mortgage might be authorized, but the order should providt for everything essential to do equity among all the parties.</p>

59, to May Term 1874. This was an action of assumpsit commenced September 4th 1871, by Benjamin W. Harnish and William C. Beecher, trading as Beecher & Harnish, against Benjamin Eshleman and Cyrus N. Herr.

<p>Appeal from the Court of Common Pleas of Adams county: No. 13, to May Term 1874, by Mary L. Bittenger in the distribution of the proceeds of an attachment execution against her.</p> <p>On the 2d of August 1872, Chestnut, Townsend & Co. obtained ajudgment against Mary L. Bittenger for $209.12, and on the 5th of the same month issued an attachment execution against her, returnable August 19th, the first day of August Term.</p> <p>The sheriff returned that he had attached certain building association stock belonging to the defendant, and had served a copy of the writ on the defendant.</p> <p>No notice was given by her to the sheriff of her claim of $300, under the Exemption Act of April 9th 1849, Pamph. L. 523,1 Br. Purd. p. 636, pi. 20, &c. On the 20th of November 1872, the defendant entered on the record that she claimed the benefit of the act from the stock attached. On the 30th of December a rule was taken on the garnishees and interrogatories were filed. On the 3d of February 1873, the court directed the sheriff to sell the stock and pay the money into court; he accordingly sold the stock and paid into court $1155.41. The plaintiffs in the execution obtained a rule to show cause why the money in court should not be paid to them; this rule was made absolute May 28th 1873.</p> <p>Mary L. Bittenger appealed to the Supreme Court and assigned for error the order making the rule absolute.</p>

<p>Error to the Court of Common Pleas of Adams county: Of May Term 1874, No. 64.</p> <p>This was an issue framed October 21st 1872, to try whether a certain paper writing was the will of John Bowman, deceased. In the issue, John E. Tawney, the executor of the will, was plaintiff and Henry Long and Hannah Long, his wife, and daughter of the decedent, were defendants.</p> <p>The questions in the issue were: whether the decedent was of sound mind, &c., when he executed the paper; whether its execution was pi’ocured by duress; whether it was procured by fraud and imposition on the decedent; whether it was procured by undue influence.</p> <p>The writing was dated October 28th 1871, at which time the decedent’s wife was living, and also an only child Hannah, the wife of Henry Long (the defendants in this ease); decedent’s wife died in the early part of 1872 at the age of eighty-five years, and he died in August 1872 at the age of eighty-seven years.</p> <p>By his will he bequeathed to Jacob Bowman, a nephew, $200, and the remainder of his estate, after payment of debts, he gave to John E. Tawney, whom he made executor of his will. • Tawney was a nephew of decedent’s wife, but otherwise in no way connected with him. His estate was wrorth from $1500 to $2000.</p> <p>The case was tried February 9th 1873, before Fisher, P. J.</p> <p>Plaintiff gave evidence by the subscribing witnesses of the execution of will; these witnesses testified also that he was then of sound mind, memory and understanding.</p> <p>The defendants gave evidence that about 1871, he and his wife had been living with the defendants and that the husband and he had difficulties about the payment for his boarding ; that he left Long’s house, boarded in several other places and finally became an inmate of the plaintiff; that his wife commenced a proceeding against him for her maintenance, in which the plaintiff became surety for his appearance at the Court of Quarter Sessions; on the 25th of October 1871, he was sentenced by the court to pay a monthly sum for the support of his wife, and on the 28th, the day the will was executed, Tawney entered into recognisance with him for the performance of the order of the court. About the same time suit was brought against him by Long for payment for hoarding him, in which he confessed judgment November 4th 1871.</p> <p>The defendants gave evidence that the decedent constantly asserted that his wife maintained improper relations with Long, his son-in-law; that Mrs. Long was not his child; that she and his wife were prostitutes and treated him with great unldndness; and gave evidence generally for the purpose of showing that he was monomaniac as regarded them ; they gave evidence also for the purpose of showing that his mind and memory had become impaired and that he was incompetent to make a will.</p> <p>For the purpose of establishing undue influence by Tawney the plaintiff, they gave evidence, that the decedent lived with the plaintiff ; that plaintiff was with him in all the litigation, attended to the business for him, accompanied him to the office of his counsel, &c.; that in a conversation about the management of his farm which was occupied then by Long, he said that Tawney was his agent, he had nothing to do with it, and that Tawney told him Long was too dumb to manage his own affairs.</p> <p>Long, the defendant, testified, under objection and exception:—</p> <p>“ About a year before he left me he came from Tawney’s, and he said it is nothing but ding dong all the time, by Tawney and his family, for me to make a will and leave all I have to them. He said Mr. Tawney went further than he had any business to do, and I told him so to his face; them papers are destroyed now; and I made the old man no answer to this. He added, he could not catch me, as long as I have my senses; I will never make a will; he cannot catch me.”</p> <p>Mrs. Long testified, under objection and exception: “In the year 1871, between spring and harvest, I can’t state particularly, but before the lawsuit, the old man said John E. Tawney was dingdongitig at him to make a will, and he said he was not going to make one as long as he had his senses. He said Tawney said he should will it to him, and that he had a family and we have none. At another time, but the same time he was there, he said Mrs. Tawney would take him around the neck, kiss him and say: Dear uncle, will me all you have; Hannah does not need it and did not work for it; Aunty worked for it. * * *</p> <p>“ About a month or so before the lawsuit he said Tawney had gone further than he had any business to do, and he told him so to his face, and Tawney owned to it, and that he had all now in his own hands and was going to keep it.”</p> <p>Michael Deener testified: “ Sometime .since Bowman died Tawney told me, in the shop, the old man wanted to make a will and he would like to give Jake some and hardly knew how to fix it. Then Tawney said he told him, pay your debts and afterwards you can do what you please.”</p> <p>The plaintiff gave evidence in rebuttal. He testified amongst other things, speaking of the proceedings against decedent for the maintenance of his wife, * * * “ We came back on the 20th. Mr. Wills prepared the papers; we came out to the office. Mr. Bowman paid from 1st of April to 1st of November the allowance, and the costs were not paid. After that Bowman called me back into the office and told me he had made up'his mind to make a will. He always thought he might give Jake something. He told me the way he was fixed he did not know what to do about it. He asked me wffiat he ought to do about it. I told him if he wanted to give Jake something he could make it so that his debts and funeral expenses should be paid first, and then he could give Jake whatever he had a mind to ; if nothing was left, there would be no harm done. He then went over into the prothonotary’s office. He told me if I had any business to attend to I should do it and meet him at Mr. Ramer’s hotel. I left then and met him at Ramer’s hotel about two hours after. Then we started home. I did not, at that time or at any other time, ask him to make a will in my favor. I never asked him to make a will at all. On the way home he handed me the will to take care of. He told me I should keep it, and he wanted me to take care of him, and he supposed if there was anything left I would get it. It was in an envelope, not sealed.”</p> <p>On cross-examination plaintiff testified: “ John Snyder and I had a conversation outside of the court-house about the trouble the old man had about his suit, and he seemed to be very much confused, and then I said in answer to Snyder, who said he was not fit to make a will, that he was not. Mr. Snyder broached the subject to me. Mr. Snyder and I met on the court-house steps, and he said to me that this thing, meaning the suit, seemed to trouble the old man uncommon. I replied that it did, and that his mind was much confused or out of fix. Mr. Snyder then said if the old man would want to make a will he did not believe it would stand. I told him I thought not. We spoke in reference to his condition that day. I did not say to Michael Deener, I told the old man to give Jake $200. The day before we came to town, I had a conversation with the old man about making the will. He told me in front of his room he had been thinking about making a will and fixing his things; he did not know whether he could make a will or not; that if he got like old Mr. Slagle his property might not reach to keep him. I told him if I was in his place I would take the good of what I had while I lived, and if there was anything left it was his own and he could do with it as he pleased.” * * *</p> <p>The foregoing is all the evidence which bears upon the question of undue influence by the plaintiff upon the decedent in connection with his will.</p> <p>The plaintiff’s sixth point and its answer were :—</p> <p>Point: “ The defendants have given no sufficient evidence to sustain their allegation that the will was obtained by duress, fraud, imposition or undue influence, and therefore the jury cannot find in favor of the defendants on these issues.”</p> <p>Answer: “ There has no evidence been given in this case to prove that the alleged will of the testator was made under duress or by fraud or imposition, but whether it was obtained by undue influence is a matter submitted by the court to the jury under the evidence given in this case, and the instructions of the court as to what in law will constitute undue influence sufficient to destroy the validity of a testamentary instrument.”</p> <p>The defendants’ fourth and sixth points and their answers were:—</p> <p>4th: “ In ordinary cases the undue influence necessary to invalidate a will is a constraint operating upon the testator at the time of the testamentary act which destroys free agency; hut less influence is required to control the mind of a testator and avoid a will, when the testator is enfeebled in mind, and very aged and infirm, than is required to control the will of one of mental vigor. And if the jury believe the testator was very aged and infirm, and enfeebled in mind, and that John E. Tawney, no relation by blood to testator, importuned him to make a will and leave all his property to him, and was his confidential agent and conducted his business for him, and encouraged him in his conduct towards his wife, and controlled the old man, his papers and effects, shortly before the alleged will was made, and brought him to the attorney where the will was written, and the principal part of the estate is devised to him, this raises a presumption of undue influence, and direct proof of it at the time of the execution of the will is not required to render the will invalid.”</p> <p>Answer: “ If the facts are as stated in the point, they are circumstances that are to be taken into consideration by the jury in considering the question of undue influence, but alone do not raise a conclusive presumption of undue influence.”</p> <p>6th: “ Where the party to be benefited by the will has a controlling agency in procuring its formal execution, it is universally regarded as a very suspicious circumstance and one requiring the fullest explanation.”</p> <p>Answer: “ This is not correct, but is to be considered as a circumstance amongst others tending to prove undue influence.”</p> <p>The court charged:—</p> <p>“ This case is an issue directed by the Register’s Court to the Court of Common Pleas of Adams county to try whether or not. certain instruments in writing, alleged to be the last will and testament of John Bowman, deceased, late of this county, is his will or not. It is contended that Mr. Bowman, from age and infirmity and weakness of mind, had not the capacity to make a will at the time he signed the instrument in question; that the instrument asked to be established was obtained by duress, fraud, imposition and undue influence, and that the testator was under an insane delusion as regards the relations existing between his wife and son-in-law, Henry Long, one of the defendants.</p> <p>“ Before we say anything about the facts of this case we will state to you our views of the law relating to testamentary capacity and what is required to constitute an ability to make a valid last will and testament. A disposing mind and memory is one in which the testator is proved to have had, at the time of executing the will, a full and intelligent knowledge and understanding of the act he is engaged in, a full knowledge of the property he possessed, and an intelligent perception and understanding of the disposition he desires to make of it, and the persons he wishes to he beneficiaries of his will and the recipients of his bounty. His mind and memory may be impaired by age or disease, but if enough intellect remains to fill the requirements above stated; advanced age, and infirmity of body, or impairment of the original mental force, will not incapacitate a man from making a valid disposition of his property by a testamentary instrument.</p> <p>“ By law every person has the right to dispose of his or her property as he or she thinks best, if they are of proper age and disposing mind and memory, and it is not so much the disposition that is made,as the fact that it was freely and voluntarily done, which constitutes the inquiry, in cases in which it is contended the will was procured by undue influence. There can be no invalidation of a will for undue influence, if the party is a free agent; if he has a will to act, and an ability to act in the matter as he desires and pleases, and does so act. The undue influence which will invalidate a will, is such as destroys the testator’s free agency, and prevents him from making any other disposition of his property, than that which the person who exercises the control over him chooses to dictate. The influence must be operative at the time the will is made and must be the effect of, and be produced by, undue influence. Solicitations to make a will, persuasions to make a will in a particular way, will not constitute undue influence, so long as the party making it remains a free agent and acts as he desires to act in the matter.</p> <p>“ A man may be of sound mind in regard to his dealings in general, but may be under an insane delusion, and whenever it appears that the will was the direct offspring of the partial insanity or monomania under which the testator was laboring at the very time the will was made, that it was the moving cause of the disposition, and that if it had not existed the will would have been different, it ought to be considered as no will, although the general capacity of the testator may be unimpeached.</p> <p>“ The wife and children of a man are the natural objects of his affections, and where they are disinherited by a husband and a father, when he comes to dispose of his estate, the reasons for doing so are a proper subject to enter into the consideration of a jury, in considering a case like the present, and any person will naturally inquire, why was this thing done ? Was the testator under an insane delusion, or has some powerful cause induced him thus to act ?</p> <p>“ If a monomaniacal delusion is unalterably entertained by a testator against a wife or -a daughter, who otherwise would have been his legatee or devisee and who would seem to be the natural objects of a man’s regard when he came to make a final disposition of his estate; and such delusion is shown to have been the operating motive which excluded' them; and if the supposed act or misconduct on the part of the wife or child, or both, had no existence in fact, and was a creature of the diseased imagination of the testator, and the will was engendered by this delusion and was its offspring, and made under its influence operating at the time and in the testamentary act; if, in short, the will was dictated by the delusion, it cannot be sustained as a last will and testament, because it is the production of a mind incapable of correct reasoning as to the object of his bounty and the character of his wife and children, and their relations towards himself. * * * ”</p> <p>The court then referred to the evidence and continued:—</p> <p>[“As regards the undue influence said to be exercised by Mr. John E. Tawney over the testator, you have heard the testimony on both sides of the question, as also the evidence of acts of misconduct and disrespect towards Mr. Bowman by his daughter and her husband, and on the whole of the evidence and the law as stated to you by the court, you will decide the question of undue influence —remembering that it must be operative at the time the will was made and was the cause of the will, and without the operation of the undue influence a different disposition of the testator’s property would have been made, and that the undue influence prevented</p> <p>“ The leading point in this case seems to me to be, whether the testator, at the time he made his will, was laboring under an insane delusion as regards the relations that existed between his wife and son-in-law, Henry Long, and Mr. Long’s conduct in relation to * * *</p> <p>After again referring to the evidence, the court said:—</p> <p>“ From the testimony of Mr. Deatrich, that of Moses Hartman, and that of the defendants, it is contended that the will was made under the insane delusion that the wife of the testator, a woman over eighty years of age, and who had lived with the testator for perhaps half a century, was the paramour of his son-in-law, Henry Long, one of the defendants. If the testator, at the time he made the will in question, without any foundation to rest it upon, labored under the idea that such a state of facts existed, it was a most monstrous assumption and could only be the creation of an unsound mind, and any testamentary disposition made under the influence of such a delusion is not worth the paper it is written upon, and ought not to be established as a last will and testament.</p> <p>“ The jury will then inquire, was the paper in question the offspring of such an insane delusion? And in determining the question, they will ascertain from the evidence whether or not such a delusion existed. * * *</p> <p>“If the jury find, from the evidence, that Mr. Bowman labored under the insane delusion that his wife, over eighty years of age, had illicit intercourse with her son-in-law, and Mr. Long allowed it, or did not discourage it, and under the influence of this insane delusion, it operated upon him at the moment he made the will, and it induced him to disinherit his only daughter and child, and give nothing to his wife, the will ought not to be sustained, and your verdict ought to be for the defendants.” * * *</p> <p>The verdict was for the defendants.</p> <p>The plaintiff took a writ of error. He assigned for error</p> <p>1, 2. Admitting of evidence of. declarations of the decedent to Mr. and Mrs. Long as to plaintiff’s importunity with decedent to make a will.</p> <p>3. The answer to plaintiff’s sixth point.</p> <p>4, 5. The answers to defendants’ fourth and sixth points.</p> <p>6. The part of the charge in brackets.</p>

<p>1. Peterman made an assignment for the benefit of creditors, ,of all his property, “ except so much as may be exempt by the laws of this Commonwealth from levy and sale on execution, &c., to be selected by (him) and appraised for the use of himself and family according to law.” He selected and received §99 of personal property. The assignee settled the estate, his account was confirmed and the balance distributed to creditors, Peterman having made no further claim. Previously to the assignment his mother had died intestate, seised of real estate ; his share in it was not included in the assignee’s account. In the distribution of the proceeds of the mother’s real estate under proceedings in partition in the Orphans’ Court, Peterman demanded the remainder of the 5300 under the exception in the assignment. Held, that he was entitled to it, although no appraisement had befen made of this fund.</p> <p>2. Peterman had not waived his right to the exemption, he having claimed it as soon as he had a right to demand and receive it out of the fund.</p> <p>3. There cannot be an appraisement under the Exemption Act of April 1849, of property excepted by the debtor in his assignment.</p> <p>4. The appraisement of the property which an assignor elects to keep under the exemption laws, is to be appraised by the appraisers of the assigned estate.</p> <p>5. Where the assignor elects to receive the amount of his exemption in money, an appraisement is not necessary.</p> <p>6. The right of the assignor to make the exception depends upon the exemption acts ; his right against the assignee depends upon the exception in the assignment.</p>

<p>Error to the Court of Common Pleas of Adams county: Of May Term.1874, No. 87.</p> <p>This was an action of assumpsit commenced August 4th 1870, by William C. Stem and Eliza his wife in her right, against Robert Watson and James Watson, executors, &c., of James Watson, deceased.</p> <p>Mrs. Stem was the daughter of the decedent; her claim was for wages for services rendered to her father, from the time she came of age March 22d 1848, until November 16th 1854, when she was married and left her father’s house. The pleas were “non assumpsit” and “non assumpsit infra sex annos.”</p> <p>The case was tried February 4th 1874, before Butler, P. J., of the 15th district.</p> <p>The plaintiffs gave evidence that Mrs. Stem had worked at ordinary housework for her father continuously during the time for which she claimed to be paid.</p> <p>Thomas Anderson testified that about the 1st of June 1849, in consequence of some disagreement with her brothers, Mrs. Stem was going to leave her father’s house; her father told her if she would stay and do the work as she had been doing he would give her $2.50 per week and find her clothes. She said she would stay.</p> <p>Mrs. Stoops testified that in and previously to January 1854, witness was living at the decedent’s ; Mrs. Stem was in charge of her father’s house. “ On Saturday before Christmas she went away on a visit to her friends about Hanover, and returned Saturday after New Year’s. Mr. Watson was there when she returned and was displeased with her. He. told her she should leave — he did not want her to stay. She went upstairs then to pack up her clothes. I told him he had better keep her — he would not get a better girl or woman in his house. He wanted me to stay in her place, and I told him I would not do it for $2 per week, I went up. and asked her at his request if she would stay for $2.50 per week, and 'she said for not less than $3. I came down and told Mr. Watson. He said she should stay and he would give her the three dollars per week from that time when she came home after Christmas. She was to have $2.50 from time her mother died. I then after seeing him went upstairs and told Eliza he would give her $3 a week from that time. I told her that he said he would give her $2.50 per week from the time her mother died. She said she would stay when I repeated it to her. I don’t know anything about the wages before her mother died.”</p> <p>John Stevens testified: “I met old Mr. Watson about 1866 at Dr. Stem’s house, about June. No one was there but me and Stem and Watson. I said to Mrs. Stem, You are hard at it. She said, Yes I have worked hard all my life and haven’t got much for it yet. And the old man replied, Eliza, I will pay you wages for all you have worked for me over age.”</p> <p>Sarah Cullison testified: “I met with James Watson at Dr. Stem’s in 1865, in forepart of summer. I asked Mrs. Stem if that was her father, and she said yes. She asked her father for money and said she was going to buy land. He said he could not give it to her at this time. He said he had bought a farm in the mountain that he had to pay for and after that he would pay her wages. He said he knowed he had not paid her for Avhat she worked for him, but he Avould pay her from the time she was of age or worked over age.”</p> <p>Henry Hahn testified: “ I was at Stem’s in June 1866, when Watson was there. Eliza and her father were there when I went in. She said, ‘ Pap, you know I have worked hard for you over age, and that I have never got anything for it.’ He said, ‘Eliza, I know you have worked hard over age, and I have never paid you, but I will pay you.” She asked him why he could not pay her some now as well as John. He said, ‘ I must do as the boys say or I can’t live with them.’ She asked him if he knew what he had promised her, and he said he did, and that it was $2.50 per week from the time she came of age until after her mother’s death, and $3 after her mother’s death per week as long as she remained with him.”</p> <p>Daniel Knouse testified: “ I was at Dr. Stem’s in 1865 — after harvest. James Watson was there h\ Stem’s house. I said to her, ‘ You are hard at work,’ and she said she had been hard at work all the days of her life. She said she had wrorked for her father a part of the time for $2, and part at $3 per week, and had "not got anything for it yet. The old man said he didn’t see she was in great want — that he would pay her but not at the present time, but afterwards.”</p> <p>The wife of the decedent and mother of Mrs. Stem died January 16th 1851; he died in March 1870.</p> <p>The defendants’ point, which was declined, was:—</p> <p>“ The evidence of acknowledgments and new promises made within six years before the bringing of this suit, by James Watson, senior, to his daughter, Mrs. Stem, the plaintiff, is not sufficient in law to defeat the plea of the Statute of Limitations, and, therefore, there can be no recovery in this case.”</p> <p>The court charged:—</p> <p>* * .* “ The claim runs back many years and is brought against the estate after the father’s death. It should therefore be scrutinized with great caution, if not suspicion, and should only be allowed in case it is fully and clearly proved, in the manner required by law.</p> <p>“ The defendant asks us to charge you that — ‘ To enable a child to recover for acts of kindness or services rendered to a parent, there must be an express agreement and promise of the parent to pay for the services rendered; and unless there was such a contract proved as satisfies the jury that there was a promise on the part of the parent to pay for the services, the child cannot recover.’ And we do so charge you; such is the law. To entitle the plaintiff, therefore, to recover any part of her claim she must prove to your satisfaction that the services on which it is founded were rendered in pursuance of an express contract on the part of her father to pay for them. The law makes no presumption in her favor. No contract can be implied, for the law presumes, in the absence of evidence to the contrary, that the services rendered by a child to the parent under such circumstances, are not to be paid for. An express contract to pay must, therefore, be proved, or the plaintiff must fail. But even more than this is necessary in the case before us. The last of the services having been rendered in 1854, the entire claim is barred by the Statute of Limitations, unless it is also proved that the father, within six years of this suit, plainly and unequivocally recognised and admitted his liability for the claim, as'by a promise to pay it.</p> <p>“ The suit was brought on the 4th day of August 1870/ Six years would take us baick to August 4th 1864.</p> <p>“ Thus the plaintiff must prove not only that there was an express contract between her father and herself in pursuance of which the services were rendered, but also that her claim was distinctly and unequivocally acknowledged — as by a promise to pay it — within six years of August 4th 1870 — that is, as late as August 4th 1864.” * * *</p> <p>The judge referred to the testimony of several of the witnesses and proceeded:—</p> <p>“John Stevens says, that, in 1866,.he was at Dr. Stem’s and heard a conversation between Eliza and her father, in which she said she had worked hard all her life, and had not got much for it yet; and that Mr. Watson replied, ‘ Eliza, I will pay you wages for all you worked for me over age.’ The testimony of this witness must not be misunderstood. The language referred to by him neither creates a contract nor acknowledges one as previously existing. This was in 1866, after all the services were performed; and a. promise at that time, in the absence of a previous contract, would not bind Mr. Watson, nor have any force whatever. The only purpose for which this testimony can be appealed to, therefore, is to show acknowledgment of an existing legal claim within six years of suit brought, and you will judge whether it tends to this or not. Of itself it is of no value whatever.” * * * He then stated the testimony of Sarah Cullison and said : “ We need not repeat here what we have just said in connection with the testimony of the previous witness; you will judge whether this was an acknowledgment of a previously existing obligation to pay the daughter wages — as upon a contract to do so. The time referred to by the witness, you will observe, was the summer of 1865.” * * *</p> <p>He then repeated Henry Hahn’s testimony and said: “ [This testimony is appealed to by the plaintiff as evidence of a previously existing express contract to pay wages during the entire period claimed for, and of a renewed promise to pay what was due, within six years of suit. You will determine what weight should be given to it for this purpose.] In considering it you will bear in mind the comments of counsel on both sides; and also the admission of the witness that he heretofore declared he knew nothing about the case, which he undertakes to explain by saying, in effect, that he supposed the inquiry to be made for an improper purpose, the individual having no interesan the matter. You will further hear in mind that the witness (as well as the others called), undertakes to give a conversation which occurred years ago, and will thus judge in how far he can be relied upon, and what weight should be attached to his testimony.” * * *</p> <p>“We now repeat, to entitle the plaintiff to recover, the evidence must satisfy your minds, first, that the services were rendered in pursuance of an express contract on the part of Mr. Watson to pay for them; and second, that he plainly and unequivocally acknowledged his liability for the claim or debt due under this contract within six years of the commencement of this suit. If the evidence does so satisfy your minds that the services were rendered in pursuance of such express contract, and that Mr. Watson did so distinctly and unequivocally acknowledge his liability under it for the claim, within six years of suit brought, your verdict will be for the plaintiff for such sum as you may find to be thus due to her.”</p> <p>The verdict was for the plaintiffs for $3483.</p> <p>The defendant took a writ of error.</p> <p>They assigned for error, the refusal of their point and the part of the charge in brackets.</p>

23. This was an action of ejectment, brought March 28th 1870, by C. P. Humrich and C. E. Maglaughlin against Alexander McCrone, for a lot of land in West Eairview, being 58 feet in front and 139 feet deep. On the 22d of November on application of Ferdinand Roth, who claimed title to the property, he was joined as a party defendant.

<p>1. The plaintiff, a bank in Carlisle, was the holder of a draft payable in Philadelphia, endorsed by defendant; notice of protest was duly received by the bank on Saturday ; on that day an officer of the bank called at defendant’s house and place of business to serve notice personally, but could not meet him. On Sunday he called at defendant’s house and handed him a sealed envelope containing the notice, saying what it contained; defendant put it unopened into a drawer, and did not look at it for some weeks after-wards. Held, That the service of the notice being on Sunday was unlawful and the endorser was not bound.</p> <p>2. The defendant was not bound to receive the notice nor to open or read it on Monday, although the service would then have been in time.</p> <p>3. Receiving the notice on Sunday .in silence was not a waiver of the irregularity.</p> <p>4. Stern’s Appeal, 14 P. F. Smith 447, remarked on.</p>

<p>1. A mutual insurance company in its policies reserved the right to cancel them for non-payment of assessments for thirty days. Shoemaker insured in the company; an assessment on him being unpaid less than thirty days, he assigned his policy to defendant with approval of the company. After the assessment had been unpaid for thirty days, the secretary informed defendant “the company cancels all policies on which assessment is not paid in thirty days.” In a suit for assessments afterwards made against defendant, Held, that the company was bound by the letter of the secretary, and it justified the defendant in believing that the policy was cancelled, and if he acted on such belief, they could not recover the assessments against him, although the policy had not been cancelled on their books.</p> <p>2. The secretary was the proper organ between the plaintiff and defendant ; it was within the scope of his authority to inform defendant of the cancellation of the policy, and this was binding on the company.</p>

<p>1. Turner, October 21st 1871, gave Sleek for value a judgment-note, on which he entered judgment February 26th 1872; an execution issued March 11th and his personal property was levied on ; April 10th his creditors filed a petition of bankruptcy against him; April 11th his personal property was sold by the sheriff; he was adjudged a bankrupt and an assignee appointed July 5th; the proceeds of sheriff's sale were brought into court: Held, the note having beien given four months before the proceedings in bankruptcy, that Sleek’s judgment was not in fraud of the Bankrupt Law and was entitled to be paid from the proceeds of the sheriff’s sale.</p> <p>2. Turner being passive in the entry of the judgment and the issuing of the execution, had not given Sleek a preference; the case was no stronger than it would have been if judgment had been obtained in a suit on a plain note, no defence being interposed.</p> <p>3. Mere passive non-resistance in an insolvent debtor will not, under the Bankrupt Laws, invalidate a judgment and levy on his property when the debt is due and he has no defence.</p> <p>4. Though such judgment-creditor may know the insolvency of the debtor, his levy and seizure are not void, nor any violation of the Bankrupt Law.-</p>

<p>1. After payment of a decedent’s debts from the sale of Ms real estate, by order of the Orphans’ Court for that purpose, the administrator, widow and heirs, without the settlement of an administration account, adjusted a sum as the “ dower” of the widow, to be retained by the administrator, the interest to be paid to her during life and the principal to the heirs at her death. The widow and all heirs joined in a request to the administrator to pay the principal to her. Held, that she was entitled to receive it upon all giving t'o him proper releases.</p> <p>2. The Orphans’ Court had jurisdiction over the administrator and the fund and could decree a determination of the trust.</p> <p>3. Although a trust may not have ceased by expiration of time, or its purposes may not all have been accomplished; if all who are or may be interested are in existence and sui juris and consent, courts of equity may decree a determination of the trust and a distribution of the fund, amongst those entitled.</p> <p>3. A trust continues in equity no longer than the thing to be secured by it demands.</p> <p>5. Under Act of February 24th 1834, sect. 46, a tenant for life'in real' estate sold for payment.of debts has a right to receive the surplus on giving-security to protect those in remainder, and they may waive the security by-writing filed of record.</p>

<p>1. Three tracts had been assessed as one entire seated tract and the taxes paid by the owner, two were during the same time separately assessed as unseated and sold for taxes. The sale being void, held, the owner’s possession of part extended to the whole body.</p> <p>2. The purchaser at the tax sale entered and cultivated part of the tracts he purchased. Held, that his entry did not extend his possession beyond his pedis possessio, and the owner could maintain trespass against him for cutting timber outside of his cultivation.</p> <p>3. Making a survey and cutting timber on another’s land in his actual possession is not a constructive ouster.</p> <p>4. O’Hara v. Richardson, 10 Wright 386, followed.</p>

<p>Error to the Court of Common Pleas of Franklin county: Of May Term 1874, No. 103.</p> <p>This was an action of assumpsit, brought May 21st 1872, by Henry C. Koontz against The County of Franklin.</p> <p>The plaintiff had been clerk for the county commissioners, and his claim as filed in the case was for “ $166.66, the monthly salary for the months of February and March 1872.”</p> <p>By a special Act of Assembly, the retiring county commissioner of Franklin county vacates his seat on the first Monday in February in each year, and his successor assumes the office.</p> <p>On the 1st Monday of February 1870, upon the organization of the board, the plaintiff was elected clerk of the commissioners for one year from April 1st 1870, at a salary of $1000 per annum. On the 6th of February 1871, he was elected for another year from the 1st April 1871. He served up to the 5th of February 1872, when the commissioners elected another clerk and plaintiff was not permitted to go on and discharge the duties; he had been paid up to January 31st 1872. He claimed that his appointment extended until the 1st of April 1872, and that he was entitled to be paid up to that time notwithstanding his discharge.</p> <p>The foregoing facts sufficiently exhibit the case as it was considered by the Supreme Court.</p> <p>The plaintiff’s first point was:—</p> <p>“ If the jury believe from the evidence, that the board of commissioners, at their first meeting, to wit, on the 8th of February, A. D. 1870, appointed the plaintiff clerk to the board for one year, at a salary of one thousand dollars, and that his term of office was to begin on the 1st of April, A. v. 1870, and end on the 1st of April 1871, and if the jury further believe that at the meeting of the board of commissioners in February, A. D. 1871, they again appointed the plaintiff clerk, at the same salary, for another year, to begin on the termination of the first year — this was such a contract as the board of commissioners had a right to make — was binding on the county, and the plaintiff had a right to hold the office until the 1st day of April 1872, and could not be discharged therefrom before that day, except for good and sufficient cause.”</p> <p>This was refused.</p> <p>The defendant’s point was :—</p> <p>“ If the jury believe from the evidence that the plaintiff was employed by the county commissioners for the term of one year, commencing on the 1st day of April, A. D. 1871, the contract, so far as it embraced any period of time, after the commencing and organizing of the next succeeding board of commissioners, was without binding force and could be rescinded or annulled at the pleasure of the new board, without liability to the plaintiff.”</p> <p>This was affirmed.</p> <p>The court charged:—</p> <p>“ The plaintiff is not entitled to recover from the defendant for his services as clerk for the period from the 6th February 1872 to 1st April 1872. He is entitled to recover for the period from 31st January 1872, to 6th February 1872, as it is not disputed that he has not been paid for that time.”</p> <p>The verdict was for the plaintiff for $16.44; he took a writ of error and assigned for error the answers to the points and the charge of the court.</p> <p>The Act of April 13th 1834, sect. 50, Pamph. L. 541, 1 Br. Purd. 302, pi. 7, enacts:</p> <p>“ It shall be the duty of the commissioners of each county to appoint a suitable person as clerk, who shall keep the books and accounts of the board, record or file their proceedings and papers, attest all orders and warrants issued by them, and perform all other acts pertaining to his office as clerk; he shall receive for his services such sum as the commissioners shall, at .their first meeting in each year, agree Upon.”</p>

<p>Error to the Court of Common Pleas of Parry county: Of May Term 1874, No. 47.</p> <p>This was an action on the case, brought to January Term 1870 of the court below, by Sarah Ann Weber, widow, and Margaret Weber and others, children of George H. Weber, deceased, against the Pennsylvania Railroad Company. The cause of action, as set out in the declaration, was that the defendants, by carelessness and negligence in running their cars on their road, caused the death of Weber on the 28th of August 1869, at a public crossing by a county road.</p> <p>The cause had been tried before and a verdict for $2500 rendered for the plaintiffs. On a writ of error, the judgment on this verdict was reversed by the Supreme Court (22 P. F. Smith 27).</p> <p>The deceased was a baker, living at Duncannon, in Perry county, and carried bread, cakes, &e., for sale, in a one-horse wagon, to Marysville, about six miles east of Duncannon. He went three times a week, and had been doing so for about eighteen months. He travelled on the county road, which is alongside the railroad and crosses it several times between the two towns. On the 28th of August 1868 he was crossing the railroad from the south on the public road, in a “spring wagon” with one horse, the curtains being rolled up, when his wagon was struck by the locomotive of the “Harrisburg Accommodation” train, belonging to the plaintiffs, going east; his horse was killed immediately and himself so badly hurt that he died in a very short time.</p> <p>The crossing is the third east from Cove station, about a mile and a half from that station and is about 110 feet from the end of a stone wall built on the south side of the railroad; the wall is 1117 feet in length, extending 'westwardly. Until within 400 feet of the crossing, the county road is below the grade of the railroad; it then ascends a hill, and afterwards descends at a grade of six degrees to a level twenty-five feet from the railroad track, and passes on this level over to the northern side of the railroad. The whistling-post on the railroad was 1280 feet west from the crossing where Weber’s wagon was struck. The stone wall on the railroad and the increased noise from the rolling of cars passing between the walls have the effect of drowning the sound of the whistle.</p> <p>The principal question in the case was as to the contributory negligence of the deceased.</p> <p>The case was tried the second time, May 6th 1873, before Junkin, P. J.</p> <p>M. H. Foos, for the plaintiffs, testified that he was a passenger on the train; his attention was arrested, after leaving Cove station, by a sharp whistle and a sudden stoppage of the train about 200 yards east of the crossing; he looked out and saw part of the wagon hanging on the engine; he got out and saw the horse lying on the north side of the road, and Weber on the pilot under the head-light; he was not then dead, but was dead when the train reached Marysville, about a mile and a half from the crossing. Witness remembered no other whistling just before the accident occurred.</p> <p>A. Kauffman, who was a laborer for the company, testified that he was working on the road about a quarter of a mile east of the crossing, around a curve, so that he could not see the crossing; he heard one blast of the whistle about the time of the accident, hut had not heard any more. He went up to the crossing and found Weber lying on the pilot, dying.</p> <p>A. Ensminger, also a laborer of defendants, testified that he was working 300 or 400 yards east from the crossing; he saw Weber passing westwardly with his horse and wagon; “after a young man, Alfred Priesler (who was working with witness), had bought cakes from Weber, we started right away to work again. I was working with my face eastward, stooping down, tamping a tie, and I heard a sharp whistle ; I turned around and looked up the road, and I saw the engine strike the wagon and horse.” Witness did not hear any other whistling about that time; he was busy at work and paid no attention.</p> <p>P. Deitz, who was working with Ensminger, testified that he saw Weber passing with his wagon westwardly; witness and Priesler bought cakes from him, and they then went back to work; Weber started on; “I heard a whistle; I looked up; says I, 1 There goes the baker;’ this whistle was at the time the baker was going on ; the train and Weber were approaching each other at the time.” Witness did not take notice of the train till he looked up, and did not hear any other whistle or warning than the one he had mentioned. “ I was frightened lest the Dutch baker should get injured.”</p> <p>D. Rife testified that he had assisted in making measurements at and near the crossing; a person standing on foot in the county road before coming to the crossing, and 21 feet from the south rail of the south track, could see an engine coming 601 feet from the middle of the crossing; at 27 feet the smoke-stack of the engine could be seen 214 feet.</p> <p>Eli Branyan testified that he was in company with Rife when these measurements were made; that, standing 21 feet from the track, the engine was just one minute coming to the crossing from where the smoke-stack was first seen; and one-half minute when standing at 27 feet from the track; the trains he saw were long freight trains.</p> <p>J. B. Hackett, a surveyor, testified that from Marysville for the distance of 2 miles 246 rods westwardly, the county road crosses the railroad five times; from the second crossing, where Weber was killed, to the next above is 184 rods.</p> <p>The plaintiffs gave much other evidence for the purpose of showing that the whistle was not sounded or other warning given before the train approached the crossing; also that the view of the railroad for a considerable distance was hidden by underbrush and trees growing on the banks of the railroad.</p> <p>Eor the defendants, E. B. Taylor, who was a civil engineer in the employ of the defendants, testified that, standing in the middle of the county road, at a distance of 20 feet from the south rail of the south track, that track eonld be seen at a distance of 210 feet west from the crossing; the targets on the cross-switches could be seen 1087 feet from the crossing; at the whistling-post, 1245 feet from the crossing, the head-light of an engine could be seen; the head-light would be about 10 feet above the rail; in a wagon, with the horse’s head 2 feet from the south rail, an engine could be seen 3911 feet from the crossing; standing in a wagon on the summit of the county road, 117 feet back from the track at the crossing, the engine could be-seen at the whistling-post, and the whistle could be distinctly heard there. The first crossing from Marysville to the crossing where Weber was killed, measuring on the railroad, is 1286 feet; from the first crossing from Marysville westwardly the road is straight for about 4000 feet. A whistle at Cove station could be heard at the crossing where the accident occurred; the ringing of a good bell at Cove station could be heard there.</p> <p>S. H. Free, the engineer of the locomotive by which Weber was killed, testified that the train left Altoona on time in the morning of the day of the accident; ran its usual and schedule speed (23 7-10ths miles per hour); was on time at all the stations. The day was clear; the machinery was' all in good order; the track good and everything right; the fireman rang the bell at the two upper crossings after leaving Cove station; the bell was good; at the whistling-post above the crossing where Weber was killed, witness blew four blasts of the whistle for that crossing; “ about half way from that to the crossing below I saw the horse coming out on the road towards the track; I blew the whistle again some four or five blasts, sharp and quick, and a very short time after that the horse and wagon stopped on the track; as soon, as it stopped I pulled on the patent brake and reversed the engine; the engine was in that position until it struck the'wagon.” When he first saw the horse’s head it was within a few feet of the track. When the engine struck Weber, the horse stood with his hind feet, just across the north rail of the south track; Weber was sitting in the wagon nearer the front than the middle; he had hold of the lines pulling back, as if he was trying to back his horse; the front wheels of the wagon stood near the north rail of the south track; the shafts stood up alongside of the horse’s neck.</p> <p>H. Robinson, the fireman, testified much as the engineer; also that he rang the bell at the two upper crossings. He was sweeping the foot-board when the engineer sounded the alarm-whistle; he then looked on his side of the engine and saw the horse ; “ I then saw a man seated in the wagon, near the middle as near as I could tell by the appearance; the horse was stopped; it appeared to me he was trying to back the horse off the road, as the shafts were up alongside the horse’s neck, and the wagon had run on him; he remained'in that position until we struck him.” The engine had been reversed, the brake applied, and the speed of the engine had been slackened before he was struck.</p> <p>The defendants gave in evidence photographs of the road, of the ground where the accident occurred, the vicinity, &c., &c. They gave evidence also that the sight of the road was not obstructed by underbrush, and much testimony in answer to the plaintiffs’ case generally.</p> <p>The plaintiffs’ second point and the answer were:—</p> <p>Point: “ As the uncontradicted evidence in this case shows that Greorge H. Weber did not stop before arriving on the track, the verdict must be for the defendants.”</p> <p>Answer: “ We cannot affirm this point, but say again that the first presumption of law is that he did stop, look and listen. But this presumption will give way to the actual truth, that he did not do so. And we again say, that if the evidence satisfies you that had Weber stopped, looked and listened, he would not have been injured, then he was guilty of negligence, &c.; you should find for the defendants, even should you find that the engineer gave no warning of the approach of this train.”</p> <p>The court charged:— * * *</p> <p>“ First, then, was the death of Weber occasioned by the negligence, carelessness and impropriety of the Pennsylvania Railroad Company? That he was killed in the manner here mentioned there can be no denial or doubt, but whether through the company’s negligence or his own is the question. The company, on the day herein designated, were running their engine and cars on their own road, on the proper track of the said road, and at or about .the usual time of day. They had the right, beyond all question, to use their road, with their engine and cars, their engineers, conductors and servants, to carry passengers or freight, as they should deem right, subject only to the legal principles which govern and control the exercise of such rights.</p> <p>“ Weber, with his horse and wagon, on the same day and time, was travelling on a common highway, used and occupied indiscriminately by every person whose business or pleasure called him along it. He too had an unquestioned right to use this highway for his own purposes, and at such times as suited his pleasure or convenience, subject, at the same time, to the understood rights of others. The company, with their engines and cars, and the baker. with his horse and wagon, had their respective rights at this crossing, of such character that they should not molest or interfere the one with the other.</p> <p>“ These reciprocal rights created corresponding duties. The railroad company, notwithstanding their right to travel along and over their own road, were hound to exercise due care and diligence in the use thereof; and Weber, although on a road whereon he had a right to travel, was also under the obligation of duty so to exercise his right as not to interfere with the rights of others. With these rights and duties respectively they met at the crossing, and the fatal accident occurred. Weber was on the track of the railroad, and the engine and train passed along, breaking up the wagon and horse and killing him. ' Where was the negligence which occasioned this fatal collision ? Was there any on either side ? Was it one of those inevitable, unavoidable accidents, regarded in law as the act of God, with no one to blame ? In the absence of all proof showing negligence, the law presumes it to be unavoidable — that is, such as no ordinary prudence on the part of both Weber and the company could have guarded against. And this presumption continues to prevail until the proof establishes negligence or carelessness on the part of the company, and the evidence disclosing no negligence or carelessness on the part of Weber, then this balanced condition arising from the presumption that the accident was unavoidable gives way, and the company is ■shown to be in fault, becomes chargeable with the consequences of its negligence, and the plaintiffs may recover. [But if the evidence shows negligence on the part of Weber in approaching and crossing the track of the defendants’ road, and no negligence on the part of the company, then the blame and fault would be Weber’s own, and the law would not permit these plaintiffs to recover.] And still again, if the evidence shows that both Weber and the company were guilty of negligence or carelessness in crossing the track, so that both parties were to blame for the accident, the plaintiffs cannot recover, because he would then have contributed to the injury himself, and the law never allows a man to gain by his own wrong. * * *</p> <p>“ Then what is negligence ? It has been described as the want of that care which men of common sense and common prudence ordinarily exercise in like employments. This is a fair and plain definition of negligence, and it is important that you carry it with you in your examination of the testimony. To determine whether there was negligence on either side, and whether the defendants were negligent, a brief view of the evidence becomes .necessary.</p> <p>“ First, then, the accident occurred in open day, without the ..excuse of darkness. The public road runs close alongside of the .railroad; it could run nowhere else, owing to the bluff of the ..mountain and the Susquehanna river, and in a distance of four miles crosses the track of the railroad five times at least. Some places it runs below the level of the railroad and some places above. Where this accident occurred the road-(public), just below the crossing, runs above the level of the railroad track about ten and a half feet, and then advancing westward (and that was the direction in which Weber was moving), the road descends at about 6 degrees and comes to the level of the railroad at the crossing, 25 feet before reaching the crossing itself; and after passing the crossing the public road falls below the level of the railroad ; but this is not important, as Weber was killed at the crossing. Then from this fatal crossing looking westward, at a distance of 1230 feet, stands the whistling-post, and at this post, or in sufficient time, it is the duty of the engineer to sound the whistle. Then, at 110 feet from this fatal crossing, on the hill-side of the railroad track and on the same side of said track that the county road is on, below or eastward of the crossing, commences a retaining stone wall which runs westward a distance of 1117 feet, and is 7 feet high from the bottom of the ditch, which would make it 6 feet above the rail of the track, and the south rail is 6 feet from this retaining wall. Then add the fact that the railroad from this crossing westward is so nearly straight that a man standing on the centre of this crossing can see it westward a distance of nearly one mile, and the further fact, if believed, that in July or August 1869, the brush and weeds growing on the slope of the bank were cut back 20 feet from this stone wall, and you have the conditions under which Weber approached this crossing on his way from Marysville to Duncannon on the 28th August 1869, and was killed by a train running at from 15 to 20 miles per hour. Now let us define for you at this point what precaution and care the law requires at the hands of a traveller when he is approaching a railroad crossing or any dangerous point in the way he is journeying. In North Pennsylvania Railroad Co. v. Heileman, 13 Wright 60, Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396, and others, it is distinctly announced that ‘ at the intersection of a railroad with a common road there are concurrent rights, and neither the traveller on the highway nor the company has an exclusive right of passage.’</p> <p>“2. As the movement of railroads is necessarily so rapid, and the consequences of collisions so disastrous, it is the duty of the traveller on the highway, to look out, when approaching its intersection with a railroad, for trains and approaching engines, to stop and listen; and if he fails to take this precaution, he is guilty of negligence, and cannot recover for injuries sustained by a train coming in collision with him. Precaution, looking out for danger, is therefore a duty. Not looking for a coming train is not merely an imperfect performance of duty, it is an entire failure of performance, and negligence in itself. And in Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396, it was wisely held by the Supreme Court that a peddler approaching a railroad at a point in a town where he had often, crossed muffled in his coat within the covered top of his wagon, taking no notice of the railroad, and driving slowly upon the track without stopping or looking out, was guilty of negligence.</p> <p>“ [Now then, it becomes important for you to inquire, what were Weber’s opportunities to see the train approaching which struck and destroyed him. ITad he stopped, looked and listened, because if the evidence satisfies you that, if he had stopped, looked and listened, the accident would have been avoided, — then you cannot find damages.] Such failure on his part would be negligence, and there can be no recovery by the plaintiffs. Then what were Weber’s opportunities to see and hear this train? It is an important fact, that he was moving westward, while the train was moving eastward — it was coming towards him — and thus his chances to see and hear were much better than if the train had been approaching in his rear. The road or ground over which Weber must necessarily have passed, at a distance of about 110 feet from the crossing, was undoubtedly some 11 feet above the level of the railroad bed; his wagon would elevate him still higher ; the slope of the hill-side west of the crossing, along and over which he must look for the approaching train, was about 9 feet above the rails of the track, and if John Whitzel is believed, the bushes along the slope, back of the stone wall, were mowed off in July or August in same year; and George W. King, John Whitzel and others, if correct, saw the smoke-stack and engine as low down as the head-lights from the summit of the high ground aforesaid, over which, as before observed, Weber must have passed — so far up the road as the whistling-post — 1230 feet from crossing. And it is further established by actual experiment, that by standing one foot from the track, and even 20 feet back from it, an engine was visible as far up as the whistling-post, a distance of over 1200 feet. [Add to this the fact that Weber was accustomed to travel-ling this road, and then determine whether any ordinarily prudent man, exercising reasonable watchfulness and care, would have been able, by stopping, listening and looking, to have seen this train approaching, and avoided the calamity which befell Weber; and if he could, and you believe that Weber neither stopped, listened nor looked, but, on the contrary, advanced recklessly and carelessly upon this crossing, then, whether the whistle was blown or sounded by the employees of the company on the train or not, he (Weber) was clearly guilty of negligence, and these plaintiffs cannot recover.] In determining this point you will look at all the circumstances of the casu, and if you find that Weber was negligent, careless and reckless in approaching this crossing, then you need go no further, but find for the defendants.</p> <p>“ It is testified that from top of hill east of crossing, in county-road, 117 feet from south rail of south track of railroad, at the fatal crossing, the view of a man standing on this summit reaches westward up the railroad to the curve, a distance of over 3900 feet — to near four-fifths of a mile — over three-fourths of a mile ; then, if Weber, when crossing this hill, and when on its summit, or at any point along the summit, had looked as he in law was bound to do, he could not have failed to see any approaching train' for the distance of over three-fourths of a mile in front of him and above the crossing; and still further, from the summit of this hill, it was only 117 feet down the hill, around the curve of county road, until he would reach the south rail of south track of railroad, and if, when he had passed over 100 feet of this 117 feet, and within twenty feet of the said south rail, and it would only have taken him 17 seconds of time, moving at the rate of four miles per hour, to have gone over these 100 feet, and he had then stopped and looked, as in law he was bound to do, he could have seen an engine at the bone factory, or whistling-post, and along from there to crossing, a distance of over 1200 feet. Now do you believe, under this state of facts, and the facts are not contradicted, that any ordinarily prudent man would have failed to see and avoid the calamity which befell Weber? Can it be possible that, had he looked, he would have been injured at all ? You are not at liberty, under the oaths you have taken, to shut your eyes to this proof; If you believe this, it is binding on you, and you must give the fact full play in determining the issue. In the midst of vague and loose observations, made by men called as witnesses to prove what can be seen and what cannot be seen from the summit of the hill in the county road, and near it, we turn with sensations of relief to one of the views taken by an artist, with a camera, an artificial but unerring eye, and which is utterly incapable of misrepresenting, either by mistake or design, and you will there see that by a view taken on the side of the county road, on summit of hill, east of crossing over which Weber passed, at three feet from the ground, the eye can see up the railroad track as far as the cross switches, a distance of over 1245 feet from the crossing. There can be no mistake about this testimony, and it conclusively establishes the significant fact that this crossing affords advantages to the traveller for looking west in order to observe trains. Then how can it be truthfully said that this is a dangerous crossing— with its approaches commanding at least 1300 feet of the track itself, and probably a view of trains for over three-fourths of a mile? Now, had Weber stopped and looked, as he was bound to do, is it probable that he would have failed to see this train ? This is for you.</p> <p>“ Then, was this view obstructed in 1869 by bushes ? Several witnesses for the plaintiffs, Mr. White and Mr. Moore, and perhaps others whom I do not remember, speak vaguely of bushes, but don’t say where they were ; whereas several witnesses, George W. King, John Wheitzel and R. Q. King, prove that these bushes on slope of bank west of crossing have been mowed off year by year for many years, as far back as twenty feet, counting from south rail of south track of railroad, and some of these men say they had this done, and all of them were laboring about this part'of the road more or less at the time of the accident. Now, is this evidence more satisfactory than the mere passing observation of men whose business did not call upon them to see and observe ?</p> <p>“ Then, as to the character of the witnesses. The law presumes that all witnesses speak the truth. In actions against railroad companies, it is alleged, their employees generally swear for the road, but it is just as true that others, not employees, generally swear about as vigorously against these companies.</p> <p>“ But if the evidence fails to satisfy you of the carelessness of Weber, then you must go further and inquire whether the company was negligent of its duty. Now, it was the duty of the company through its employees conducting .this train, to have sounded the whistle at a reasonable distance above this crossing, and there was a whistling-post 1280 feet from this crossing, and here it was the duty of the engineer to blow. Did he do it ? The evidence on this point is very contradictory. On the side of the defendant we have Samuel II. Free, the engineer, who swears positively that, when about this whistling-post, he blew several blasts. II. Robinson, the fireman, swears to the same thing, and Andrew C. M’Cully, a gentleman of high integrity, who was on board the train, swears that the usual alarm-whistle was blown at the whistling-post. On the other hand, Isaac Ream, Mary Smith, Michael Foose, Adam Kauffman, Frank Yon Flie, Henry Gamber, A. W. Ensminger, Perdits, Isaac Baker, Anna Jones, Mrs. E. Smith, William Sayler and Robert J. Shearer, — who seem to have had opportunities of hearing, and who testify that they heard no whistling as a signal at the crossing. As a general rule, affirmative evidence is more reliable than negative, but you will fully consider the strength of this negative proof — looking at the opportunities these negative witnesses had of hearing; the probabilities of their taking notice of a whistle, and if on the whole, the force of this evidence outweighs the positive, you will act accordingly. You will in this connection, however, consider that, where persons are busily engaged in working, talking or thinking, they often fail to notice the striking of a clock, even in the room in which they may be, and experience teaches us all, that the sound of the locomotive whistle is scarcely noticed by persons accustomed to healing it, or by persons who are not interested in it at the time. The evidence of the negative or non-hearing witnesses would have to be very satisfactory to my mind, ‘before I could permit it to overthrow the positive testimony of three witnesses, or even one reliable witness, who swears they or he did hear; but this is a matter for you to pass upon, and to you we submit it.</p> <p>“ Then, should you find that, in point of fact, the whistle, as an alarm for this crossing, was sounded, we see nothing in the case to take it out of the usual rule of law, that where the company operating a road, such as this, has not been guilty of negligence, and there occurs a disaster, it is not responsible. But should you find that the defendant did not blow the alarm-whistle at all, or in such manner as to give sufficient warning, and you should further find that Weber was not guilty of negligence in approaching this crossing, then the defendant is liable, and it will become your duty to assess the damages.” * * *</p> <p>The verdict was for the plaintiff for $4166.66.</p> <p>The defendants took a writ of error and assigned for error the answer to their second point and the parts of the charge in brackets.</p>

<p>Error to the Court of Common Pleas of Bedford county: No. 28, to May Term 1874.</p> <p>This was an action of ejectment, brought October 20th 1869, by Essington Hammond against Josiak 0. Burke, for a tract of 160 acres of land in Union township. The defendant took defence for 145 acres and 10 perches of the tract claimed.</p> <p>The case was tried December 13th 1872, before Rowe, J.</p> <p>The plaintiff gave in evidence, warrant dated June 1st 1763, to James Johnston, for 300 acres, called the Two Runs or Five Springs; survey September 8th 1797for 749|-acres. This survey covers the land in dispute.</p> <p>After evidence of search for a deed for the Johnston warrant to Dr. Peter Shoenberger, under whom plaintiff claimed, and of inability to find it, plaintiff, under objection and exception, then read the deposition of Michael Reed, who testified: “ I surveyed James Johnston last time in 1859; surveyed it in Dr. Shoenberger’s lifetime ; examined his papers; his land-book laid before me; among those papers there was a deed for the James Johnston tract and the Edward Evans tracts; I saw those deeds among the land-papers time and again; in McCormick’s time I made a thorough examination of those papers; he also had a commissioner’s deed for part; the deed I saw embraced 749 acres; the two deeds were recorded at Bedford; I think they were from Goldsboro; Dr. Shoenberger’s deed for the Johnston was before the Goldsboro; before the Evans title; he had commissioner’s deed for part of the Johnston; it was marked on the ground; I can’t say who deed was from; I think it is on record; for 749 acres. It was from one of these Philadelphia men; I think deed is recorded; it was a regular drawn up deed ; it said ‘grant, bargain and sell;’ he had a deed for Croyle Improvement, after it was vacated and sold at treasurer’s sale; do not know from whom, but suppose the man who bought it at Croyle’s sale. I saw that McCormick had these deeds in 1859; might have seen them about 1840;' first time saw deed and assignment to Dr. Shoenberger.”</p> <p>Also, under objection and exception, the deposition of Matthew Simpson, who testified: “At furnace fifteen years; Bice lives in it now; different men there for different years; Martin Dively there when I first came there; John Fetters next; Michael Reesey, then Bice; occupied ever since I came there; no coaling on Johnston since I came there; know lines; around three times; cleared land near to Burke’s house; cleared before I came there. Think were written leases between Dively, Fetters, Reesey and Bice; I leased as manager; did not specify number of acres; mentioned farm cleared and land that was not cleared; part of land given as unseated; all given in as seated; tenants to pay taxes on the part known as that farm ; run line across to pine; a marked line; tenants did not occupy part over next line; we claimed all the land-; have heard of the ‘ Croyle Improvement; ’ we farmed these fields on the disputed part in 1858 and 1859; farmed in wheat; Mr. G-ochenour put it out under Bice, and Bice leased it from me; no actual residence on this part of land after Croyle till Burke entered; searched; could not find deeds; were in hands of Pollard McCormick; then of Coys; P. McCormick is dead; Johnston tract is part of Sarah Furnace lands; I never saw deed for Johnston tract; Mr. Reed had access to papers at house that I had not; he was making a chart or draft of the lands; I saw the Land Book; it is lost; tax paid.”</p> <p>Plaintiff gave in evidence, patent to Dr. Shoenberger for 4531-acres, surveyed on warrant to Edward Evans; this land being within the lines of the Johnston survey.</p> <p>Dr. Shoenberger’s title, if any, to the land in dispute passed by his will to D. 0. McCormick and other McCormicks, and from them by subsequent conveyances to the plaintiff.</p> <p>D. Gochenour testified: “ I first knew the land on which defendant lives in 1819; no one lived on it then; Croyle lived a mile away on another tract where Boyer now lives; when I first came there a small field was cleared on the disputed tract where Burke lives; Croyle, after he helped to move his crop off of that piece, got hurt and died in that year, 1819 ; it was then called the Widow Croyle Improvement; she had it farmed for several years by others, and then I farmed it for her for three years, in 1827— 8-9; I don’t know whether it was farmed after that; Shoenberger got possession of it in 1832, and began to chop in the fall; chopped in ’33 also, and then coaled in the summer; the first job that was coaled for Sarah Furnace, on the ridge part, was coaled on this land; Shoenberger had the timber taken off from year to year, until it was all gone; it laid open, commons, while they were hauling coal for it, until 1858. In 1858 Samuel Bice got permission from Sarah Furnace to clear it off and fence it up; then, for two years, 1859-60, I farmed it for him: that was the end of our work there; no one ever lived on that part now in dispute before that; in 1820 or 1821 I know that Frederick Stambaugh was living on the Evans tract; he lived there a good while; ten or twelve years any how; Martin Dively was there next; he lived there a small lifetime; from the time of his marriage until his children were grown up; John Feathers came in next, who was there one or two years; next was Michael Reesey, who remained from four to five years; after Reesey, David Dickey, who lived there two years ; the house was burnt, and no one lived there for one year; then Samuel Bice, who is there now; has been there seven or eight years.”</p> <p>(All these tenants on the Edward Evans tract, it is admitted, were under Dr. Shoenberger or his predecessor in title.)</p> <p>“ Defendant’s house is four or five rods away from the widow Croyle field, the same field I worked in 1858 and 1859; Bice added about one acre in making fence; I know the Edward Evans tract; it lies on the west side of the disputed land; I know the Ohristly Bouser tract; it adjoins the land in dispute on the north side; the Bouser tract separated the John Croyle residence and improvement from the little field; they were about a mile apart; I know the Johnston tract and where defendant now is; from 1819 to 1861 there never was any residence or house on the land in dispute, unless you call colliers’ cabins, houses; from 1819 to 1861 there was no cleared land on this tract in dispute, except the little field there in 1819; then grain was growing on it, put in by Croyle; from 1829 to 1858 the field was not cultivated, but a perfect commons; fence gone; ■ in fall 1833 Dr. Shoenberger commenced coaling it; no possession except the colliers; no cultivation until 1858; no building on the Johnston tract, except what was on the Evans part of it; Dr. Shoenberger coaled the Johnston tract until it was all cut off; the land was heavily timbered; the first job was cut on the land in dispute; the second year they cut the Bouser tract and part of this.”</p> <p>Isaac Pressel testified: “I have known the Johnston since I was ten or twelve years old; my father lived on the adjoining tract; the Johnston was called in early times the Big Survey, Dr. Smith’s land and Pine Ridge; all that land was known as Pine Ridge; Croyle claimed two or three acres, and was called Croyle’s Improvement, where defendant now is; Croyle did not live there; after Shoenberger got it and commenced chopping and coaling, we called it the Furnace land; Dr. S. cut the timber off the part where defendant now is; two or three years after the furnace was built, in 1832; he continued cutting until he had cut the whole pine ridge off.”</p> <p>Jacob Kissinger testified: “ I have known the land where defendant lives forty years; Dr. Shoenberger had it in possession; it was coaled by Shoenberger; the land belonged to Sarah Furnace; it was called the Johnston tract, Pine Ridge; I know defendant’s improvement; it was coaled about forty years ago; the second year of the furnace.”</p> <p>Michael Walter testified: “I have known this disputed land tract since 1836; I cut timber upon it for Dr. Shoenberger about that time for coaling; the cutting was done for Sarah Furnace; I think the Burke Improvement was made in 1861; I helped to survey the James Johnston three years ago; the Burke Improvement is inside those lines; the defendant’s house is close to the line of the Johnston and Christly Bouser; I only cut on that land in the winter of 1836; January, February or March 1836; I helped to cut on this land in dispute; towards the Evans; the Bouser tract lay north of the tract I cut on; Shoup abandoned the Burke Improvement once; when he went to the army; Burke is there now; has been there about eight years or more; he lives there and cultivates the land.”</p> <p>Samuel Bice testified: “ I live on the tract called Johnston and Evans; I have been there about eight years; I first rented from the McCormicks, then from Mr. Hammond; before me, David Dickey lived there; I have known the land in dispute for thirty years; I rented a field, and fenced it, for two crops, from David McCormick, in 1858 and 1859; in 1860 we cut and hauled the last of the crops away; I left the field fenced; the balance of the tract had been cut and coaled before I knew; I made rails on the Burke Improvement for David McCormick some four or six years before 1858 ; they were hauled to Sarah Furnace ; the land was known as Shoenberger land, attached to Sarah Furnace; I live within the lines of the Evans; this land was cut and coaled in 1839; all cut off when I came there; most of the rails were made on the Bouser, over the line between the Bouser and Johnston; near the line; some on both sides; they claimed all the land; the Bouser tract also; in 1858 no fence, when I went there to this land in dispute; no appearance of a fence; nothing in the field; the field four or five acres ; Goch'enour did the work for me; the field was empty; no farming done from the time I took my last crop in 1860, until Shoup went there ; I never saw Shoup there.”</p> <p>There was other evidence of the same character. Also; that by survey in 1869, it was ascertained that west line of defendant’s improvement corresponded with the Evans line east.</p> <p>There was evidence also to show payment of taxes by Dr. Sboenberger and bis successors including tbe plaintiff, in different years from 1835 to 1859.</p> <p>Tbe defendant gave evidence that Dr. Shoenberger bad rented tbe Evans tract and Sboenberger coaled tbe remainder of what was within tbe lines of tbe Johnston survey; that “ every one hauled logs from tbe Pine Ridge;” that Sboup went there in April or May 1861, to make an improvement; “ tbe Bice field” was empty, Sboup put a cabin there through the summer and cultivated tbe field; be.went to the war in 1872, when be came back tbe defendant bought from him and bad lived there ever since and cultivated it.</p> <p>There was evidence that Dr. Sboenberger and bis successors bad disclaimed title to tbe land in dispute.</p> <p>The defendant’s points were:—</p> <p>1. There is no such evidence of title in plaintiff to tbe land in dispute as will enable him to recover, and tbe verdict must be for tbe defendant.</p> <p>2. There never was such title to any part of tbe land in dispute in John Croyle, nor has tbe plaintiff so connected bis possession or that of his predecessors therewith as to avail him in this action.</p> <p>3. Plaintiff and bis predecessors do not stand in tbe position of “ earlier intruders” upon tbe Johnston tract so as to give them a title superior to defendant to that survey; but as trespassers thereon, and defendant may successfully defend upon said survey as an outstanding title.</p> <p>4. If tbe jury believe that Dr. Peter Sboenberger was not in possession from 1834 until the time of his death be had acquired no such title by adverse possession as would enable bis devisees to recover and bad at the time of his death no title to devise.</p> <p>5. Tbe McCormicks acquired no title to tbe land in dispute by leasing tbe smalt field in 1858 and 1859.</p> <p>6. If tbe jury believe from tbe evidence of David Dickey and Matthew Morehead that Peter Sboenberger bad no title to tbe land in dispute, but only claimed tbe same and took possession thereof, to secure tbe timber growing thereon and then abandoning tbe land, then plaintiff bad no title and tbe verdict must be for tbe defendant.</p> <p>Tbe court charged:—</p> <p>[“ I think that tbe decision of two questions by tbe jury will make an end of this controversy.</p> <p>“ The first question is: Were tbe McCormicks whose title tbe plaintiff has, in tbe actual possession of tbe tract of land in dispute at tbe time of tbe entry of Sboup upon this tract for tbe purpose of appropriating it to himself, whose right tbe defendant Burke acquired ? Now tbe principal facts, material to tbe solution of this question, as I understand the evidence, are as follows: — Tbe tract in dispute is part of tbe James Johnston survey, which is itself a part of a stretch of mountain side called the Pine Ridge. On the Johnston tract, as far back as 1819, a small field of three or four acres was cultivated, which is within the limits of the tract in dispute. From about 1830 to 1858, this field was not cultivated, nor was it enclosed before 1858. It lay an open commons. In 1832 and 1883, Dr. Peter Schoenberger, whose title plaintiff has, cut off all the timber growing on the Johnston tract and the Pine Ridge, for Sarah Furnace. There was no building on the land in dispute or on the Johnston’s, outside the lines of the Evans tract, at any time. In 1858, one Samuel Bice got permission from the owner of Sarah Furnace to clear off the small field and to fence it up. In 1858 and 1859, it was farmed by Bice, then in possession under the McCormicks, and in 1860 he cut and hauled away the crop. ‘ I left the field fenced,’ says Bice. Then, in 1861^ Shoup entered upon the land in dispute, which includes the field, and put up a cabin. The war called him away for a year or two. When he returned, he made some arrangements with Burke, the defendant, who entered upon the tract and held it as his own. The evidence seems to me to show also, and it can hardly be doubted, that the owners of Sarah Furnace, the predecessors in title of plaintiff, were claiming and treating the Johnston tract as part of the Sarah Furnace lands, from the time of the erection of the furnace until the entry of Shoup.</p> <p>“ If these facts are established by the evidence, and it seems to me they are, we have at the time of the entry of Shoup this state of things, namely: The cultivation of an enclosed field on the Johnston, by persons in under lease or license from the McCormicks,'who were claiming the whole of the Johnston tract, which included the land in dispute. This would amount to actual posses sion by the McCormicks of the land in dispute. It will not do to say they were not in the actual possession of the enclosed field in 1861, merely because they did not farm the field in 1860 or 1861, but had only cut and carried away the crop in 1860. An owner of an enclosed field must surely be permitted to allow it to lie idle a year or two years, without rendering it liable to be appropriated by any one coming along.</p> <p>“ If you should be of opinion that the McCormicks whose title the plaintiff has, were in the actual possession of the land in dispute when Shoup entered, such possession merely, without showing legal title, is sufficient to enable plaintiff to recover against the defendant, a mere intruder showing no title. But if you should hold otherwise, then plaintiff cannot recover, unless it be upon this other ground that the title under the warrant to James Johnston became vested in him or his predecessors in title.] * * *</p> <p>The court then gave a synopsis of the evidence and said:—</p> <p>I think there is in all this enough to raise a presumption of a conveyance of the right under the James Johnston warrant and survey to Shoenberger or the McCormicks, by deed which has been lost.] But if you are of a different opinion upon this question and also think there was no actual possession of the land in dispute by the McCormicks in 1861, when Shoup entered, your verdict will be for the defendant.</p> <p>“ It is not necessary to read and answer the points presented by counsel. So far as they are not substantially affirmed in what we have said, of course, they are refused.”</p> <p>The verdict was for the plaintiff.</p> <p>The defendant removed the record to the Supreme Court by writ of error, and there assigned the following errors, amongst others:—</p> <p>I. Admitting the deposition of Michael Reed.</p> <p>5, 7. The parts of the charge in brackets.</p> <p>8-13. Refusing to affirm the defendant’s points.</p>

<p>Error to the Court of Common Pleas of Franklin county: Of May Term 1874, No. 58.</p> <p>This was an action of trespass quare clausum fregit, brought February 5th 1872, by George McFerren, against The Mont Alto Iron Company, George B. Weistling and others.</p> <p>The declaration was that the defendant broke and entered the plaintiff’s close, broke down his fences, cut down and destroyed his timber trees, &c., &c.</p> <p>The defendant pleaded: 1. “ Not Guilty : 2. That the defendants entered by license from the plaintiff. 3. That the locus in quo had been owned by Holker Hughes, who on the 30th of May 1854, conveyed to Jacob Bricker by deed, in which Hughes reserved to himself, his heirs and assigns, the right to the use of a certain road over the land conveyed to Bricker; that the right passed from Hughes by deed to Mont Alto Iron Company, and the alleged trespasses were committed by the servants of the company over the way so reserved.</p> <p>The road mentioned in the third plea passed over a field of about twelve acres belonging to the plaintiff. It had been part of the Mont Alto Furnace property, which consisted of a body of land of 10,000 acres or more, and which had belonged to J. Holker Hughes; on the 13th of'March 1854, Hughes conveyed this field of twelve acres to Jacob Bricker, and on the 14th of January 1862, Bricker conveyed it to the plaintiff. The plaintiff alleged that the road of which the defendants claimed the use, was on another piece of land, containing about nine acres, which cornered with the twelve-acre field at its south-west corner, the north line of the nine acres extended forming the south line of the Bricker tract; the nine acres also had been part of the Mont Alto Furnace property, and had been conveyed by Hughes to the plaintiff in 1852. At and after it was so conveyed, there was a road through it which Hughes used, to go to what were called the “ Pond Ore-bankshis works being situate southwardly of this field and the ore-banks northwardly of it. The plaintiff further alleged that this road, after the purchase of the nine-acre field, was moved eastwardly to the line of the Bricker field and passed over the southwest corner near where it joined the nine-acre field. The road in dispute entered the Bricker field, at about the middle of its south line, from the property of tie iron company and considerably to the east line of the nine-acre field and passed northeastwardly through the Bricker field into other property of the company. It was called the “ Old Shirey road.”</p> <p>The case was tried January 28th 1874, before Hall, P. J.</p> <p>The plaintiff gave in evidence a deed with general warranty, dated January 14th 1862, from Bricker to himself for the twelve acres; he then gave evidence that the whole field had been enclosed before the alleged trespass ; that defendants had taken down the fences so as to pass over the road; and rested.</p> <p>The defendants gave evidence of acknowledgments of plaintiff ' that the iron company had the right of way in dispute; that it was a plain, well-marked road ; that it had been fenced up about 1857 or 1858.</p> <p>John Sproul, a witness, having testified that he had known the road for over thirty years, the defendants proposed to show by him and others “ that the road in dispute was used by the owners of the furnace property, and also by other persons of the neighborhood, for the entire period of which the witness speaks.”</p> <p>The counsel for the plaintiff objected to all evidence to show that the road in dispute was a public road, used by others than the employees and owners of the furnace, because the pleadings show that the defendants justify the entry upon the plaintiff’s land under a special license from the plaintiff, and under a reservation in the deed from Hughes, the predecessor of the title to the furnace property, to Bricker, the predecessor of the title to the plaintiff’s land.</p> <p>The offer was admitted, and a bill of exceptions sealed.</p> <p>' They gave evidence in accordance with the offer, including evidence that the road had been used by persons in the neighborhood to reach public roads and other public places.</p> <p>They then gave in evidence a deed dated March 18th 1854, from Hughes to Bricker, for the twelve acres; in the deed was contained the following clause:—</p> <p>“ Reserving, however, the road as it is and .the right of pur-ehaslng on Hughes paying for same all the ore raised on said land, to said John Holker Hughes and his successors, at Mont Alto Iron Works, as-aloo the-right of-way through-said- land.” ' .</p> <p>Above the signature of the witness was: “ on the tenth line the word ‘purchasing’ erased before signing:”—</p> <p>The defendants having rested, the plaintiff in rebuttal gave evidence that at the time of the conveyance to Bricker the land was all in timber and unenclosed ; that the timber was afterwards cut off and it was then enclosed; that the nine acres had been fenced previously; that there had been a road through that piece used by the defendants’ predecessors to pass to the “ Pond Oro-banks that about the time the Bricker field was fenced there was a road made between it and the nine-acre field; he gave evidence also to show that there was no well-marked road through the Bricker field where defendants claimed that it was, and that there had been roads all through that piece when it was in timber.</p> <p>It was admitted that J. Holker Hughes was dead.</p> <p>The plaintiff proposed to prove by his own testimony “ that the time he bought the nine-acre field from Hughes there was a road passing through it; that when Hughes tendered witness the deed, he had a reservation of this road in the deed, and when witness saw it he refused to accept the deed, and then Hughes had the reservation erased, and the road was then changed to where it now is, between the Bricker lot and the nine-acre lot.”</p> <p>The evidence was objected to by the defendants, because, first, the road spoken of in the offer is not in dispute, and in no way relates to the case; and because it is proposed to prove a contract with Holker Hughes in his lifetime in relation to said road, and Hughes being dead, the witness is not competent to testify on the subject; and because the witness is not admissible to contradict, change or modify the deed, and because the evidence is irrelevant; and because the witness being the alienee of Jacob Bricker of the land over which the disputed road passes, is not a competent witness on the subject of this road, or in this case,’ Holker Hughes being dead, having died before this suit was brought.”</p> <p>Per Curiam : “ The thing in controversy in this suit is a right of way alleged to have been reserved by a contract between Holker Hughes and Jacob Bricker, which contract is evidenced by a reservation in the deed of conveyance from Hughes to Bricker. The witness (who is the plaintiff) is the vendee of Bricker, and claims the land free from the right of way. The defendant is the vendee of Hughes’ adjoining property, and of his rights of way. We hold the plaintiff incompetent to prove matters occurring in the lifetime of H. Hughes, between Hughes and himself, because Hughes is dead. The evidence embraced in this offer is to this extent rejected.”</p> <p>A bill of exceptions was sealed.</p> <p>The plaintiff having released Jacob Bricker from his liability on his covenant in the deed of January 14th 1862, offered in evidence his deposition, which contained the following:—</p> <p>“ I purchased a tract of land from Holker Hughes. (Deed of 1854 to deponent shown.) This is the deed for the land. (Looks at the erasures in the deed.) ■ When I bought the land from Hughes I was to pay him $87.50 per acre for 12 acres and 46 perches. There was some difficulty about judgment-liens, and no deed was made at the time, but. he gave me a right to go on the land and cut timber (it was then all timber-land). After we surveyed it, he found out that he was shut up and had no road to the Pond Bank to get ore; that he was fenced up. Then he agreed, if I would let him pass through the corner of the field I bought from him, he would allow me the timber on the road that was on his land, to pass through on Holker’s own land. When the deed was given I found these words, ‘ as also the right of way through said land.’ When I discovered this, I would not lift the deed at all, and I paid the purchase-money, and cut some timber on the land. Holker Hughes ordered Thomas Wilson-to erase the words above quoted, leaving the deed as it now stands. This was before the execution of the deed, but am not certain. This was done, I think, before the deed was signed. It was done before it was acknowledged. I would not lift the deed at all with those words in. Hughes directed his manager, Thomas Wilson, to erase the words above mentioned. Then the deed was acknowledged shortly after and delivered to me as it is now. He was not fenced up at the time, but he found that he would be fenced up, and I gave him a road across the corner of the field upon which this alleged trespass was committed. The road that I gave him the right to use was not the road upon which the alleged trespass was committed. * * *</p> <p>“At the time I bought it he found that the road would be fenced up. * * * I gave him the road across the corner of the field before I lifted the deed. I can’t tell how long it was I gave him the road before I lifted the deed. He went through McFerren’s piece of road before I gave him the road. * * * I took the timber that he gave me, and gave him the road across the corner of the field, which has been used ever since.” * * *</p> <p>The offer was objected to by the defendants because Bricker was “ not a competent witness, the subject-matter of his testimony being about a contract alleged to have been made between him (the witness) and Holker Hughes about the matter in dispute. The said Holker Hughes having died about four years ago, this witness is not competent to testify of conversations and contracts made before the death of Holker Hughes, so far as they relate to this case; also, because he is not competent to contradict a written deed.”</p> <p>The court rejected that part of the deposition given above, “ as it relates to the occurrences between Holker Hughes and Bricker concerning the subject matter in controversy in this suit.” A bill of exceptions was sealed for the plaintiff.</p> <p>The plaintiff’s fourth point was :—</p> <p>“ The defendants having claimed the right of entry upon this field by a special license from the plaintiff, and under an express reservation contained in the deed from Hughes to Bricker, and this being the only issue raised by the pleadings, there can be no defence made in this case of the trespass complained of, by showing that the public had acquired a prescriptive right to a road through the plaintiff’s field, even should the jury believe the evidence does establish such a public right, and the court is respectfully requested to withdraw all evidence about this being a public road from the jury.”</p> <p>The court answered:—</p> <p>“ The counsel for defendants have not claimed that a public road by prescription exists. They claim under the reservation in the deed, and point to the use of the road by the furnace people and others, for years before the date of the deed, as evidence to’ indicate the road referred to in the deed, and this is the issue raised by the pleadings and which we submit to you.”</p> <p>The verdict was for the defendants.</p> <p>The plaintiffs took out a writ of error and assigned for error,</p> <p>1. Admitting the evidence of John Sproul and others, as mentioned in the first bill of exceptions.</p> <p>2. Rejecting the testimony of the plaintiff, as mentioned in the second bill of exceptions.</p> <p>3. Rejecting that portion of the deposition of Jacob Bricker, as mentioned in the third bill of exceptions.</p> <p>4. The answer of the court to the plaintiff’s fourth point.</p>

<p>Certiorari to the Court of Quarter Sessions of Blair county: Of May Term 1873, No. 64.</p> <p>At July sessions 1869 of the court below, there was a petition for viewers for a road “ to lead from a point on the Etna Iron Works and Cove Forge road, near and west of a barn the property of Joseph Isenberg, by the best route through lands of Joseph Isenberg, John Clark and John K. Sissler, to a point on the road leading from Etna Iron Works to John K. Sissler’s, near an old barn belonging to John Clark.” Viewers were accordingly appointed, and an order, reciting the description of the road asked for in the words of the petition, issued to the viewers. To the October sessions the viewers reported that they had laid out a road substantially as prayed for; the report was confirmed nisi. At the January sessions 1870 an order for review was issued; reviewers reported the same road, which was confirmed nisi June 21st 1870. Exceptions were filed to the report by Joseph Isenberg. On the 16th of March 1871, John Clark, who was advocating the road, and Isenberg entered into an agreement of compromise, in pursuance of which the court made the following order, which is in the words of the agreement:—</p> <p>“And now, March 19th 1871, the report of reviewers confirmed absolutely as to the road within laid out, except that the southern end of same be changed to a point about eight rods west of present location, near a stone pile, and from thence to run east, as nearly as possible, along between Samuel Isett and Joseph Isenberg, to the nearest point on new road as within laid on land of John Clark.”</p> <p>At October sessions 1871, Samuel Isett presented a petition, setting forth: That the change in the location of the road from that made by the viewers and reviewers materially affected him in passing through his land; that he had no notice of the intended change; that it was done hv Clark and Isenberg, the parties directly interested; that the order made by the court was illegal, and praying that it be revoked and the report of the viewers or reviewers be confirmed or referred to other viewers.</p> <p>The court granted a rule to show cause why the order should not be revoked, which rule, on 19th March 1872, was discharged.</p> <p>Writs of certiorari were issued, at the instance both of Isenberg and Isett, to remove the proceedings to the Supreme Court. Isett assigned these errors:—</p> <p>1. The court erred in laying out a road different from that reported by the viewers and reviewers.,</p> <p>2. The order is too indefinite as to the location of that part of the road changed by the court.</p> <p>Isenberg assigned for error:—</p> <p>1. .That by the order to view and lay out tne road the viewers are required to lay out the same through the lands of Joseph Isenberg, John Clark and John K. Sissler.</p> <p>2. That one of the termini of the road is not designated in the report of the viewers — that is to say, the point in the Etna Iron Works and Cove Forge road, near and west of a barn the property of Joseph Isenberg.</p>

76. This was an action of trespass q. c. f., brought April 14th 1873, by Richard Johnson against David Smith. The defendant and one John Thompson were owners of adjoining farms; the plaintiff was the tenant of Thompson.

<p>1. A devise was to Eberly, “ that part of the McKinstry farm at present occupied and farmed by Brown, containing eight fields.” Parol evidence was admissible to show that the description “ containing eight fields” was a mistake, and that the part occupied, &c., by Brown contained nine fields.</p> <p>2. The evidence was that the part of the McKinstry farm occupied and farmed by Brown was nine fields. Held, that its applicability to the devise and the credibility of the witnesses was for the jury, under proper instructions as to their effect.</p> <p>3. “Thatpart of the McKinstry farm at present occupied, &c., by Brown,” was a description of the devise which had no other means of identification.</p>

<p>Appeal from the Court of Common Pleas of Franklin county: No. 30, Of May Term 1874. In the matter of account of William McLellan, assignee of the Chambersburg Saving Fund Association.'</p> <p>The Chambersburg Saving Fund Association was an unincorporated stock company organized and doing business previously to 1858; their business was receiving deposits, lending money and discounting. The par value .of the stock was $25 per share.</p> <p>Holmes Crawford was president of the association and William • G. Reed the cashier. Amongst the stockholders were Upton Washabaugh, John Gilmore, Samuel Gilmore, William G. Reed a,nd J. C. Richards: also John Anspach, Jr., who owned one hundred shares. The association having become embarrassed the stockholders and officers above named (except Anspach), and A. K. McClure, A. H. Senseny, J. S. Nixon, Samuel Seibert, Daniel Trostle, John Cree, J. S. Grier, Samuel R. Fisher, J. A. Eyster and W. B. Gilmore, also stockholders, on the 5th of February 1862, naming themselves “ partners in the Chambersburg Saving Fund Association,” acknowledged themselves indebted to William L. McLellan in the sum of $50,000, payable in eighteen months with interest: “In trust however for the sole use and benefit of such creditors of the said Chambersburg Saving Fund Association as shall comply with the conditions hereinafter mentioned in this bond.”</p> <p>The bond recited that the association had by reason of probable losses been compelled to go into liquidation and make an assignment of the assets of the partnership for the benefit of its creditors, and there might be a deficit of assets for which the partners were individually liable:</p> <p>“ Therefore, for the purpose of securing the continued confidence of the creditors and the payment of their just claims to the extent of this bond, and also for the purpose of gaining time for converting the assets of the partnership with as little loss as possible, we have severally and jointly given this bond to be a lien upon our respective estates until such deficit, if any there be, shall be paid to the full extent of this obligation, to be collected as hereinbefore provided. In' giving this obligation, however, it is expressly understood and agreed by and between the parties hereto as follows: That their respective legal liabilities under the articles of copartnership of’ said association shall not be in anywise increased, diminished or changed by the bond, but each party hereto shall be liable upon the bond for such sum or sums respectively, or fro rata contribution, as a legal assessment upon his interest in said copartnership may require to pay to the creditors of said association the just and full sum of fifty thousand dollars. Provided, however, that if the deficit in the assets of the partnership should not reach the sum of fifty thousand dollars, then the amount of the actual deficit and no more, shall be collected upon the bond, as before directed.</p> <p>“ It is further understood and agreed that if it shall become necessary to issue execution against any of the subscribers hereto, the payment of the amount due respectively by any one of the parties, according to the rule hereinbefore stated, shall be a full discharge of the liabilities of such parties on this bond; provided, however, that if any of the parties hereto shall fail to pay their just and legal proportion of this bond as hereinbefore agreed and required, and the same cannot be collected by execution, it is hereby declared to be the true intent and meaning of this obligation, that each party hereto shall be liable for such deficit of his co-subscribers, to the full amount of this bond, to be collected, however, according to the rule and conditions hereinbefore adopted.</p> <p>“ It is further understood and agreed and made a condition of this bond, that it shall not be valid nor of any binding force whatever, unless the holders of at least nine-tenths of the indebtedness of the Ohambersburg Saving Fund Association (exclusive of the capital stock invested), shall become parties by an agreement or agreements in writing to be filed with the prothonotary of the county of Franklin, Pennsylvania, within sixty days after this bond shall be entered of record in the Court of Common Pleas of Franklin county, Pennsylvania, accepting this obligation and the assets of the said association in the hands of its assignee, under a deed of voluntary assignment for the benefit of creditors, as a full and final discharge of each and every partner in said Chambers-burg Saving Fund Association from all liability for or on account of any claim or demand whatsoever of said accepting creditors against the said Ohambersburg Saving Fund Association, or against any of its partners who may be individually liable to the,creditors of said association.</p> <p>“ No creditor of said association, who may fail to accept under this bond as before directed within the time specified, shall be permitted thereafter to accept as aforesaid and be benefited thereby unless such creditor has failed to receive notice of this bond thirty days previously to the expiration of said sixty days, in which case any creditor may accept as before directed at any time within thirty days after he, she or they may be notified of the existence of this bond upon record. And no creditor of the said Chambers-burg Saving Fund Association who shall bring suit against said association, or any of the partners thereof, for the recovery of any debt due from the partnership, or which was contracted for the use of the partnership, after having been notified personally or by notice left at his, her or their residence or place of business, of the existence of this bond upon record for the benefit of said creditors, shall in anywise or under any circumstances be benefited by this obligation or receive any portion of the money arising therefrom.”</p> <p>Endorsed on the bond on the day of its date was the following:</p> <p>“ It is understood that I have signed this judgment-note to William McLellan in trust for the creditors of the Chambersburg Saving Fund Association, amounting to fifty thousand dollars, upon the following conditions: — If the proposed arrangement goes into effect, I agree to pay my pro rata share, according to the amount of my old stock in said institution, of the said judgment of fifty thousand dollars. But if the arrangement fails I do not mean by signing said judgment-note to admit that I am a partner in said association, and liable to the members thereof for any part of the indebtedness of said institution, I also reserve the right to collect off the members of the association, who have not signed the judgment-note, my share of the money that may be collected off them by way of contribution to the losses of the association by the other partners who have signed the judgment-note.</p> <p>J. Allison Eyster.”</p> <p>By virtue of a warrant of attorney attached to the bond, judgment was on the same day entered on it in the Court of Common Pleas of Franklin county.</p> <p>A scire facias to revive this judgment was issued October 6th 1866, and judgment by default for $64,146 taken October 81st 1866 in favor of William McLellan, in trust for the creditors, &c.</p> <p>On the 24th of March 1862, the association, u for the purpose of making a just distribution of the estate, assets and effects of the said association among its creditors,” granted, &c., to Benjamin Chambers and Daniel 0. Gehr,</p> <p>“ All and singular the lands, tenements and hereditaments belonging to the said Chambersburg Saving Fund Association, now held by the said Holmes Crawford, as trustee of, and for the use, benefit and behoof of the said Chambersburg Saving Fund Association, or by William G. Reed, as cashier of the said Chambers-burg Saving Fund Association, for its use, benefit and behoof, or in whosesoever name the legal title to said land, tenements and hereditaments may now be vested, in trust for the said Chambers-burg Saving Fund Association, and wheresoever the said lands, tenements and hereditaments may he situate, as well in the county of Schuylkill and the county of Franklin, as in any other county or counties in the said state of Pennsylvania, meaning hereby to grant, * * * unto the said Benjamin Chambers and Daniel 0. Gehr, * * * all right, title, claim, demand and property of the said Chambersburg Saving Fund Association, of, in and to all real estate of every kind and description, and wheresoever the same may be situate, and in whosesoever name the legal title to the same may now be vested, belonging to the said Ohambersburg Saving Fund Association, and also all the goods, chattels and effects, assets, mortgages, judgments, bonds, single bills, promissory notes, bills of exchange, book accounts, choses in action, cash, moneys, debts, and property of every kind, real, personal and mixed, coming and belonging to the said Ohambersburg Saving Fund Association, and constituting the partnership assets of said association, including also all collaterals of every character and description now held by the said Ohambersburg Saving Fund Association, for the security and indemnity of the said association: * * * In trust, however, * * * that they the said Benjamin Chambers and Daniel 0. Gehr, shall and do, as soon as convenient, sell and dispose of all the lands, tenements and hereditaments, goods and chattels of the said Ohambersburg Saving Fund Association, and collect, receive and convert into money, all the said lands, tenements and hereditaments, goods and chattels, assets and effects, * * including the aforesaid collaterals, and with the moneys arising from said goods and chattels, lands, tenements, hereditaments, assets, effects and collaterals, after deducting the reasonable costs and charges of them, the said Benjamin Chambers and Daniel 0. Gehr shall and do pay the creditors of the said Ohambersburg Saving Fund Association, their respective just demands, in full," if there shall be sufficient assets to satisfy the whole of said creditors, and if there shall not be sufficient assets to pay and satisfy all the just demands of the creditors in full, then fro rata, according to the amount of their respective demands without preference as between individuals.” * * *</p> <p>The assignees Gehr and Chambers recorded the deed of assignment, but did not give bond, and on the 14th of April they declined the trust; on the same day the court appointed William McLellan in their place and directed them to deliver to him the estate assigned. McLellan gave bond and filed an inventory of the estate amounting to $135,614.21. Amongst the assets mentioned was the indebtedness of John Anspach, Jr., made up of the following items:—</p> <p>Six notes of Anspach, Reed & Co., . . . $8,773.73</p> <p>Four notes Replier & Bro., 8,412.80</p> <p>Three notes McCoy, Linn & Co., Three notes J. M. Bickell, 6,340.75 6,350.00</p> <p>One note W. G. Reed, 282.21</p> <p>Six notes Jno. Anspach, $12,755.99</p> <p>Balance on account stated of Jno. Anspach, 38,426.28 51,182.27</p> <p>$81,341.76</p> <p>As collateral to this indebtedness the association held, as reported by the auditors, 3100 shares of Elk and McKean Improvement Company stock, 155 shares in the Locust Coal and Iron Company, two tracts of land in Schuylkill county, 60J acres of coal land in Schuylkill and Columbia counties.</p> <p>On the 14th of July 1864, the assignee filed his first account, charging himself with $102,697.40, of which $1898.38 were a balance received from the original assignees and the remainder, assets of the estate assigned, realized by him. The credits were for expenses of the trust; they amounted to $6859.55, of which his own commissions were $5114.87 ; the balance in his hands was $95,837.85. The account was confirmed August 8th 1864 and J. McD. Sharpe, Esq., appointed auditor to distribute the balance amongst the creditors.</p> <p>He found the amount of indebtedness to be $148,500.85 and after deducting costs of audit, &c., he distributed the balance amongst-the creditors at the rate of 60.865 per cent.</p> <p>The schedule of the claims and dividends accompanying the report contained a number of claims bought by the assignee for the estate. The auditor concluded his whole report, saying :</p> <p>“ The auditor in estimating the indebtedness of the Chambers-burg Saving Fund Association, calculated interest on all the claims up to the 1st day of November, A. D. 1864, and charged interest on all the payments from the dates ^thereof, up to the 1st day of November, A. D. 1864.”</p> <p>On the 3d of November 1864, the report was presented to the court and ordered to be confirmed absolutely unless exceptions should be filed within ten days. No exceptions having been filed, the report was confirmed.</p> <p>On the 22d of December 1868, the assignee filed a second account. In this account he charged himself with $74,105.86; amongst the charges were these items:—</p> <p>Amount received by me on notes of stockholders discounted, $12,263.12</p> <p>Amount received by me as per report of J. McD. Sharpe, Esq., auditor, on certificates and other indebtedness lifted by me after deducting previous payments, • $20,649.39</p> <p>Besides the expenses of the trust the credits were payments to creditors. One item of the expenses was commissions of the assignee, $2221.17.</p> <p>Exceptions were filed to this account January 21st 1869, viz.:—</p> <p>By the Gettysburg' National Bank — that the assignee had not collected and charged himself with the amount of the judgment $64,416 in favor of the assignee in trust for the creditors of the association against A. K. McClure and others.</p> <p>By the administrator, &c., of Upton Washabaugh, deceased:—</p> <p>1. That the accountant has not charged himself with all the moneys that have, and that should have' come into his hands.</p> <p>2. That the accountant has not charged himself with any interest.</p> <p>3. That the allowance claimed is too high.</p> <p>Mr. Sharpe was appointed auditor on these exceptions, “to restate the account, ascertain balances due creditors and report distribution.”</p> <p>At the hearing before him, the exceptors gave in evidence the assignment, the bond of the assignee, &c., the indebtedness of the association to the Gettysburg Bank, &c.</p> <p>The auditor reported:—</p> <p>“ It was admitted that the requisite number of the creditors of the association accepted the terms and provisions of the judgment-bond, and amongst others the Gettysburg National Bank. No other evidence of any kind was submitted to the auditor.” *' * *</p> <p>On the exceptions by the administrator, &c., of Washabaugh, he reported:—</p> <p>“ No evidence of any‘kind has been produced before the auditor to show, that the accountant has failed to charge himself with any moneys actually received prior to the filing of his account; or that there were, at that time, any other available assets, with which he ought to have charged himself.</p> <p>“ The accountant admits the existence of a judgment for over twenty thousand dollars in the District Court of Philadelphia in favor of the stockholders of the Chambersburg Saving Fund Association, against John Anspach, Jr. But no money has yet been realized thereon, and whether the whole or any part thereof can ever be collected by legal process, involves an experiment of doubtful issue.</p> <p>“ There may be, and no doubt are some other assets belonging to the association, which are not presently available, and with which it would be unfair to charge the accountant at this time.. The account before the auditor is not a final one, and should' it hereafter be made to appear, that any moneys have been, or ought to have been realized by the assignee, from the outstanding debts due the association, the exceptants will have their day in court to call the accountant to an account of such moneys.</p> <p>“ For these reasons, the auditor overrules the first ©f the foregoing exceptions.</p> <p>“The second is also overruled, because the account does not exhibit any balance in the hands of the assignee, to form the basis of an interest calculation.</p> <p>“ The third exception is also without merit, and therefore overruled.” * * *</p> <p>As to the exception of the Gettysburg Bank, he reported:—</p> <p>“ It cannot be denied, that the defendants in the judgment referred to, in the above exception, have always had, since thexecution of the judgment-bond, ample property out of which it could have been collected by legal process. ’ Neither can it be denied, that more than enough of time has long since elapsed for the accomplishment of this object. But it is strenuously contended by the accountant, that as assignee, he has no control over the collection of this judgment, and no duty to perform, with regard to it. This is the hinge upon which the exception turns. If as assignee, it was his duty to collect that judgment, he was derelict in not doing so long ago, and ought therefore to be charged with so much thereof, as may be necessary to liquidate the claims of the creditors, who consented to the arrangement. But if, as assignee, he had no such duty to perform, and incurred no responsibility with regard to the money nominated in the bond, then the exception is baseless, and must fall.</p> <p>“ The auditor is of the opinion, and so decides, that the accountant as assignee was not bound to collect the judgment, and was charged with no duty in respect thereto. * * *</p> <p>“Inasmuch as we discover no error in the account, there is no necessity to restate it, and as there is no fund in the hands of the assignee for distribution, the auditor has therefore nothing to distribute, and cannot see that any good purpose would be answered by ascertaining the balances due the creditors at the present time,”</p> <p>On the 11th of September 1869 the report of the auditor came in, and the court ordered that if exceptions to it were not filed within ten days, it should be confirmed. No exceptions were filed, and it was accordingly confirmed. The balance appearing to be due the assignee on his second account was $799.51.</p> <p>On the 15th of April 1872, the court made the following order:—</p> <p>“ In pursuance of a petition of the stockholders of the Chambefsburg Saving Fund Association, to show cause why the judgment No. 38 of April Term 1862, for the sum of $50,000, in the Court of Common Pleas of Franklin county, and revived by William McLellan to No. * * *, should not be satisfied; upon report of said proceedings by the auditor, it is now ordered that the assignee, William McLellan, do, within thirty days hereafter, file a third and full account of his trust, up to this date, and that therefore a rule issue upon all the stockholders of the Ohambersburg Saving Fund to come in and show cause why the said account should not be confirmed, or be precluded from further objection.”</p> <p>On the 5th of.dune 1872, in pursuance of the foregoing order, the assignee filed.a third account.</p> <p>He charged himself with moneys received on the 2d of August and 22d and 21th .of December 1869, from William Gr. Reed, on a iudgment to October Term 1869, amounting in the whole to . $5749.79</p> <p>. And with moneys received from Reed on the 9th of May</p> <p>and 24th of December 1869, on a judgment to August</p> <p>Term 1864, amounting in the whole to 792.27</p> <p>Making the whole amount of charges . . . , $6542.06</p> <p>His credits amounted to ..... $6624.29</p> <p>These credits embraced the balance due him on his second account, debts of the fund paid by him, and expenses; included in the expenses were counsel fees, $250, and commissions to himself, $150.</p> <p>To this account the stockholders filed sixteen exceptions:—</p> <p>2. That he had not charged himself with any interest.</p> <p>4. That he had not charged himself with all the money that should have been collected from William Gr. Reed, J. C. Richards, Upton Washahaugh, Reilly & Sharpe, Samuel Seibert, A. K. McClure, and judgment on P. Hamman’s docket.</p> <p>5. That he had not charged himself with all the money received on the report of J. McD. Sharpe, auditor, that he should be charged with.</p> <p>6. That he had not charged himself with all the money received from John Anspach.</p> <p>7. That he was accountable for $4996.29 “ interest error” in his first account.</p> <p>8. That he claimed a credit of $566.67 for certificates of deposit No. 523 and 524, when he had paid only $500 for them.</p> <p>9. 10. That he should not have credit for commissions or attorney’s fees.</p> <p>12. That he exchanged good collaterals received from John Anspach for those which were worthless, and had not charged himself with the losses from this transaction.</p> <p>13. That he disposed of other collaterals received from Anspach at a great sacrifice, when large sums of money might have been realized from them.</p> <p>16. That he had not charged himself with all the goods, money, chattels and property which came into his hands as such assignee, or should have come into his hands, and been collected by him, to wit: The Chambersburg Saving Fund Association, at the time of the assignment, held collaterals, such as lands in Schuylkill county, stocks, &c., to secure all the indebtedness due from John Anspach to said association, which said assignee should have taken and held possession of for the use and benefit of said association, and at the earliest moment converted the same into money, and applied to the payment of the debt of said Anspach, and if he thus failed to do so, and allowed said collaterals to pass out of his possession negligently and carelessly,'or at a sacrifice, without the whole of the indebtedness of said Anspach being paid, he should be charged with the whole of the amount of indebtedness due from Anspach to said Saving Fund Association.</p> <p>E. J. Bonbrake, J. W. Douglass.and Theodore McGowan, Esqs., were appointed auditors to take testimony, find facts, return the evidence and state an account.</p> <p>They took and returned a large amount of evidence, amongst 'the rest:</p> <p>Deed dated February 4th 1861, John Anspach, Jr., to William G. Reed, “ cashier of the Ohambersburg Saving Fund Association,” for two tracts of land in Rush township, Schuylkill county, one containing 328 acres and the other containing 232 acres. In trust, &c.; that he the said William G. Reed and his heirs, shall and do hold all and singular, the hereditaments and premises hereby granted in trust, for the use of and as a special security and indemnity only to the said Ohambersburg Saving Fund Association, for any loss it might or may sustain for or by reason of any and every discount or discounts of any note or notes of the said John Anspach, Jr., now made or hereafter to be made by the said association, and also for all moneys, checks and notes of said association now on deposit or that may hereafter be deposited with the said John Anspach, Jr., by the said association or its agent or agents to be used by the said John Anspach, Jr., for the benefit and advantage of said association or otherwise, as he may be directed for special or other purposes by said association or its agent; and upon a satisfactory settlement and termination of all transactions and accounts, by reason as aforesaid, between the said John Anspach, Jr., and said association,” to reconvey to Anspach, &c.</p> <p>Also, deed dated 15th of February 1861, from Anspach to Reed, “ Cashier of the Ohambersburg Saving Fund Association,” for three undivided fourth parts of three contiguous tracts, situate in Schuylkill county, surveyed on three warrants to William Kichner, one containing 246 acres, one containing 370 acres, one containing 298 acres, “ excepting, nevertheless, out of this present grant, so much of either one of the above three tracts as is supposed to interfere with an older survey in the warrantee name of Deborah Grant, in 1793.”</p> <p>“ In trust, nevertheless, to protect the said William G. Reed, as cashier of the Ohambersburg Saving Fund Association, and also the said William G. Reed in his individual capacity, in all debts due, or responsibilities heretofore assumed or hereafter to be assumed in the dealings of the said John Anspach, Jr., with the said William G. Reed, as cashier of the said saving fund association, or with the said saving fund association in' any other way, or with the said William G. Reed in his individual capacity; and in trust further to protect the said William G. Reed, as cashier aforesaid, or in his individual capacity, for all responsibility assumed for the said John Anspach, Jr., or for his benefit, either as drawer, endorser or acceptor of any notes, drafts or other paper, either of the said John Anspach, Jr., or of any other party or parties, negotiated for the benefit of the said John Anspach, Jr.; and in further trust, that upon a fair and satisfactory settlement of all debts, responsibilities, matters and dealings, as above set forth, by and between the said John Anspach, Jr., and the said William Gr. Reed, as cashier aforesaid, and in his individual capacity as afore-. said, then, at the request of the said John Anspach, Jr., his heirs or executors, to grant and reconvey,” &c.</p> <p>Also, obligation referred to in the auditor’s report as “A,” to wit:—</p> <p>“ On the 1st day of April, A. D. 1863, I promise to pay William McLellan, or order, $14,466.60 value received, with interest from February 16th, Á. D. 1863. As collateral security for the payment of said sum of money as above specified, I have transferred to said McLellan eight coupon bonds of the United States of America, for $1000 each, numbered. * * Also, there has been assigned to said McLellan as collateral, two mortgages for $3000 each given by Daniel Haviland of the city of Philadelphia, to John M. Biclcel, and recorded in the recorder’s office of said city, &c. Said Mc-Lellan to have the privilege of selling said bonds and mortgages on and after said 1st day of April, for the purpose of paying said sum of 14,466.60 with interest as aforesaid, provided that sum is not then paid or some arrangement in relation to the same made satisfactory to said McLellan, and after deducting the expenses and commission incident to such sale, the said McLellan is to appropriate the residue to the payment of said sum of $14,466.60 as aforesaid; and if there is any deficiency, I am to make up such deficiency; and should there be any surplus, the same is to enure to my bénefit.</p> <p>“ Witness my hand and seal, the 17th day of February, A. D. 1863. J. Anspach, [seal.]”</p> <p>“ Received on this obligation, $8135.22, in payment of U. S. bonds.</p> <p>“April 11th 1863. Wm. McLellan.”</p> <p>“Received in cash, $235.80, and a new obligation given for residue, which cancels this.</p> <p>“ October 3d 1863. Wm. McLellan.”</p> <p>Also, obligation referred to in report as “ B.”</p> <p>“ On the 10th day of May, A. D. 1863, I promise to pay William McLellan, or order, 18,330.54, with interest from April 11th 1863; as collateral security for the payment of said sum of money, I have transferred to said ■ McLellan 205 shares of the Locust Mountain Coal and Iron Company, and three mortgages for $3000' each, given by Daniel Haviland of the city of Philadelphia to Jno. M. Bickel, and recorded, &c., with power to convert in case of failure to pay; and after payment of charges and commission, should there be any deficiency, I am to make the same up; and in case of there being a surplus over and above paying said debt and interest, the same is to enure to my benefit.</p> <p>“ Witness my hand and seal, this 11th April 1863.</p> <p>“ J. Anspach, Jr., [seal.]”</p> <p>“Received on this obligation, as of July 1st 1864, $10,250, by said Anspach, lifting the Locust Mountain stock, June 18th 1864. Wm. McLellan.”</p> <p>The facts in the case necessary to the understanding of the questions decided in the Supreme Court, can be most satisfactorily obtained from the report of the auditors. They say :— * * *</p> <p>“The assignee, on the 16th of February 1863, brought Ans-' pach to a partial funding of the notes” — (heretofore stated as amounting to $81,341.76.) “ On that day he surrendered to Anspach five of his own notes, one of William Gr. Reed’s, one of Bickell’s, and an indebtedness of Anspach’s own of an unknown shape, which notes, with interest then due, made $14,466.60, and took instead the obligation of John Anspach (obligation “A”), for that sum, secured by $8000 of U. S. bonds and two builder’s mortgages of $3000 each, given by Daniel Haviland, of Philadelphia, to John M. Bickell, which, with the interest due on them that day, and the accrued interest on the bonds and $286.44 of cash that day paid by Anspach, were regarded as precisely securing the obligation. On the 11th April 1863, Anspach and McLellan again met for the same purpose, when the assignee surrendered the four notes of Repplier & Bro., and five notes of Anspach, Reed & Co., making, with interest computed, $18,330.54, and received in exchange the obligation of John Anspach (obligation “B”), secured by 205 shares of .Locust Mountain Coal and Iron Company stock at $10,250, and three other similar builder’s mortgages, made by same parties, of $3000 each, as collaterals. On that day also the assignee returned to Anspach the $8000 U. S. bonds, held by him since 16th Feb. 1863, as collateral to obligation “ A,” and received for them $8135.22. A controversy arises touching the date and manner of Anspach’s payment for these bonds, which will be hereafter noticed, Davis (the assignee’s attorney in Philadelphia) continuing his collections from McCoy, Linn & Co., until by his remittance of $2000, on 20th February 1864, he closed the account of McCoy, Linn & Co., and Anspach having paid the interest on the mortgages and the dividends on 205 shares of Locust Mountain stock for the year 1863, and also having made one payment of $4000, on general account, on 22d February 1864. The assignee obtained as the next payment, on 31st March 1864 three drafts of $5000 each, from Anspach, at thirty, sixty and ninety days, on his general account, which drafts the assignee discounted, and which were met by Anspach. On 18th June 1864, the assignee and Anspach met for a final settlement. The ‘ financial account’ of Anspach was then, for the first time, taken up by name, and a formal statement of it — the balance of $88,426.28 and interest — made, and such credits as were due Anspach on this account, admitted. The 205 shares of Locust Mountain were then surrendered to Anspach and their value, $10,250,-added to the balance due by Anspach on his financial account stated, making the sum of $28,085.69. Paying the $85.69 in cash, Anspach gave the assignee four drafts, payable at three, four and five months, for $7000 each, and thus closed this part of his account. He also paid the assignee in cash $502.19, the estimated discount on the drafts, thus making them of their face value in cash.</p> <p>“ Now, by the payment for the $8000 U. S. bonds, Anspach had reduced obligation “A,” so that on 3d October 1863, it amounted to $6235.80. On 3d October he paid in cash the $235.80, and gave a new obligation for $6000 — cancelling “ A” and lifting it — for which new obligation he permitted the two builder’s mortgages to stand as collateral. Upon this new obligation he had paid nothing up to 18th June 1864, when the settlement of ‘ account stated’ was made.</p> <p>“ The payment of the four drafts of $7000 each was so deemed a certainty when they were given, that the assignee credited the value of the 205 shares of Locust Mountain, $10,250 on obligation “B,” to which they had been as collaterals, thus leaving a balance of about $8000, with interest from 11th April 1863, also due on that obligation on 18th June 1864. This sum of upwards of $14,000 remained unmet by Anspach, and the four drafts of $7000 each having been taken care of, became .the only indebtedness of Anspach to the fund, except a note for $2500, given by Anspach in payment of his stock in the fund, which note was not drawn in to. any of the settlements, but remains unpaid to this day.</p> <p>“ To September Term, a. d. 1865, the assignee entered suit on these remainders against Anspach in the District Court of Philadelphia, and on 20th of February 1866, obtained a judgment against him on a verdict for $17,131.95, on which a fi. fa. was issued and levy made by the sheriff on property; this property being claimed by a second party, was under a sheriff’s inter-pleader awarded to the claimant. On sci. fa. the judgment was revived 22d April 1871, for want of an affidavit of defence, for $22,418.56. A fi. fa. having been issued to March Term 1871, which was stayed, an alias was issued to December Term 1871, under which, 3d January 1872, the sheriff filed a rule of inter-pleader, James Anspach being claimant of the property, which rule, 17th January 1872, was discharged.</p> <p>“ The assignee accordingly holds to-day a barren judgment against John Anspach for $22,448.56, with interest from 22d April 1871. Now it is apparent, and the auditors so find, that this deficiency in the payment of Anspach’s debt to the fund is ultimately wholly due to the worthlessness of the five builder’s, mortgages, which the assignee accepted; two of them as collateral to the obligation “A,’’and again as collateral to the obligation of 3d of October 1863, and three of them as collateral to obligation “B” ; for had they, .when resorted to, proved to be good, the whole of the Anspach debt would have been amply secured. But Mr. McLellan then found that they were laid on lots in Philadelphia, on which there were no buildings newly erected, as Anspach had told him there were, and that the lots besides were encumbered by a prior mortgage to their value. Mr. McLellan accepted these mortgages upon the mere assertion of Anspach that they were valuable ; the properties about to be improved by the erection of' five new tenement-houses. He did not visit the premises before taking the mortgages or inquire into their condition and value, but, sometime after he became the holder of these mortgages, visiting the locality with Mr. J. A. Eyster, and seeing new buildings in progress on that block, he was satisfied that these were the buildings secured by his mortgages. After holding the mortgages over two years, at the suggestion of his attorney, he went on the ground with a plot of the square and discovered the deception, the lots mortgaged to him being adjacent to those built on, but themselves unimproved.</p> <p>“ Recurring now to the general line of the, assignee’s conduct, we find him during this same period collecting other moneys due the fund from its debtors, and paying by instalments from day to day, the debts due the certificate-holders, the depositors, and the banks. * * * Believing, as was the case, that a large saving to the fund and to the partners, who were liable to pay any deficiency of assets, could be made by purchasing certificates at a discount for ready money, the stockholders gave their promissory notes, beginning in April 1862, for in all $12,500, which notes were discounted and the proceeds used, at first by the assignee and afterwards by Judge Kimmell as the agent of the partners, in the buying up of the certificates and deposits. * * * These cer'tificates and deposits, purchased by the assignee or agent, were in all cases assigned to them by the holders. When the funds arising from these stockholders’ notes were expended, the buying up was continued with the proper funds of the association, both by the assignee and Judge Kimmell, until the majority of the certificates and deposits were in the hands of the assignee and agent. * * * The stockholders never lifted any of these notes given by them, but constrained the assignee to redeem five of them, the sixth remaining unpaid this day in the Bank of Chambersburg; three of the five notes were received by the assignee from John Anspach, into whose hands they had fallen as cash upon his indebtedness, and two of them from William G. Reed, also as cash upon his indebtedness to the fund.</p> <p>“ It will be remembered also that among the collaterals in hand when the assignee was appointed, were the lands in Schuylkill county; these lands, by operation of law, because of the deeds from Anspach to Reed and the deed of assignment, instantly vested in the assignee upon his acceptance of the trust, and the endorsement by Reed of all of the Anspach notes in the fund. Although the assignee never read the deed of assignment, nor did Reed turn over to him the deeds for the lands, yet both the assignee and the stockholders knew of the lands and that they belonged to the fund as collaterals. Mr. Reed had recorded both deeds 21st February 1861, in Schuylkill county. The assignee, in May 1862, with several of the partners, visited the land at Anspach’s invitation, met him there, and were shown the lands by him. A colliery, then in operation on the lands, was seen by them. Although the visit convinced them of the great value of the lands, yet they returned home disheartened because of the discredit thrown by two persons whom they' accidentally met while there, upon Anspach’s title to the land, and Mr. McLellan’s assurance that he had been advised by counsel that the title was not good. The assignee, prior to this visit, consulted F. W. Hughes, Esq., of Pottsville, and had been told by him that Anspach had no title to the lands, and his counsel, Mr. Davis, of Philadelphia, had also so advised him. Upon what information Mr. Davis based his opinion, the auditors have no means of now telling. Mr. Davis was not called as a witness, but the opinion of Mr. Hughes, who was offered by the exceptants, was based on a casual conversation with Mr. McLellan, who exhibited to him no papers, but led him to take up the belief that the lands inquired of were those well known in Schuylkill county as the £ Deborah Grant tract,’ to which Anspach in fact had no title, and touching which Mr. Hughes says he must have said he had none. But the auditors find that the deed to Reed expressly designates the land conveyed as the then £ Wm. Kichner ’ tracts, and whether the deed was given to the assignee or not, by Reed, so that he might learn this fact from it, the deed had been recorded in Schuylkill county, in which the assignee was when he saw the lands, and was readily accessible to him as a lawyer and the assignee. To this land the auditors find as a fact that Anspach had, in the language of Mr. Hughes, an indisputably good legal title. Mr. Hughes further says that, being intimately acquainted with these lands, he having been concerned in the compromise, as attorney for the Foulkes and others, and adversely to Anspach, which quieted Anspach’s title to these lands, he would have told Mr. McLellan that Anspaeh’s title was indisputable, had Mr. McLellan correctly informed him what lands had been vested in him under the deed of assignment. After this visit, seemingly with the assent of the stockholders, the assignee took no further steps to follow the lands. He never recorded his deed of assignment in either Schuylkill or Columbia counties, but after the settlement of 18th June 1864, at the request of Anspach, told and advised Mr. Reed to reconvey both tracts to Anspach, which Reed did by his deed of 21st of July 1864, and the lands passed from the fund.” * * *</p> <p>The auditors then referred to the assignee’s first account and the auditor’s report on it. They proceeded:—</p> <p>“ The auditor’s task was a difficult one. The claims against the fund were of three classes: 1st, certificates; 2d, weekly deposits, 3d, debts due banks. Deducting a preferred debt and the expenses from the balance in assignee’s hands, he had upwards of sixty per cent, to distribute to creditors. * * * Upon nearly all partial payments had been made at various times ; many of them had subsequently been bought up at a discount, and were held for the fund; many were still in the hands of the owners. The auditor, accordingly, computed interest on the face of all claims to November 1st 1864, and on all partial payments to same date, computed dividends on full claims and reported (1st) the amount of claims to November 1st 1864; (2d) dividends thereon; (3d) the partial payment with interest; (4th) balances of unpaid dividends. Such of the dividends as were due to actual holders, the confirmation of the report made it the duty of the assignee to pay out; the dividends upon such of the certificates and deposits as were in his own hands and Judge Kimmell’s constructively remained in his own hands, though in fact paid out before the filing of the report. The sum of these remainders of dividends went over into his second account, there to be claimed credit for in the name of the certificates. In this portion of the business, the auditors think the assignee acted with great improvidence. In his first account, he had, after giving dates of receipt to all other moneys received, charged himself with a large sum, $76,345.57, as received from John Anspach without date, yet forgetting that his cestui que trusts and creditors who were so largely interested would desire, and were entitled to receive the fullest light, he presented a second account in which he not only charged himself, in gross, without date, with the sum of $20,639.49 as received from Mr. Sharpe’s report, but in the long account footing up over $70,000 on each side, and concluding with a balance in his own favor, he does not insert a single date on either side, to the many scores of items. This account was filed 22d December 1868, and shows a balance in his favor of $799.41. Yet further to complicate the matter, during the period between 1864 and 1868, namely in 1867, the assignee had suggested to the stockholders, in response to their inquiries, when and how the trust would be ended, the propriety of their assessing themselves in sufficient sums to meet the deficiency as it then appeared. Having, with his counsel, made a calculation of the amount required, he reported to them that five times the amount of their stock would be required of each for that purpose, with the assurance that an ample margin had been allowed by him, that a surplus would finally result and be returned proportionately to them. Many assented, and in the fall of 1867, gave to the assignee cash, or promissory notes or judgments, to the amounts of their assessments. Upon these notes and judgments various sums were subsequently paid by the givers to the assignee portions of them yet remain uncollected, but standing in th assignee’s name as collectable assets of the fund. Now, when the account of 1868 was filed and a balance shown in the assignee’s favor, many debts of the fund being yet unpaid, the assurances of 1867 were recalled; the assignee then said that he had been mistaken in his calculation in 1867, and that the assessments as collected, were insufficient to pay the indebtedness.” * * *</p> <p>The auditors then refer to Mr. Sharpe’s second report, made September 11th 1869, and proceed:—</p> <p>“ The inventory, a year ago, forthcoming in another investigation, is now said to be lost; the dates of the second account they have been compelled to search for in the records of the courts, and throughout the voluminous testimony, or to reconstruct from the meagre data given them. The vouchers for payments of the assignee were confined at first to the certificates themselves alone, while the contradictory and varying statements of the leading witnesses, Anspach and McLellan, were often not in accordance with the testimony otherwise derived. * * *</p> <p>“ The exceptions filed reduce substantially to one of the following heads: 1st, failure to account for moneys received; 2d, interest on unemployed balances in his hands; 3d, undue credits taken; 4th, negligence; and 5th, costs. ‡ * * While the auditors were aware that because of the lapse of time since the confirmation by the court, there may be doubts of the right of a reviewing authority again to pass upon the first account of the assignee, as to what it contains, yet for the purpose of determining what it does not contain, &c., * * * the auditors have stated a single account embracing the whole life of the trust.”</p> <p>The auditors reported on the exceptions seriatim and much in detail. The results being contained in a “ summary of facts” which they made and which is hereafter given, it is not necessary to give any part of their report in thus examining them, except a portion of that part of it which relates to the 16th exception. With regard to this exception, after referring to the assignment and its effect in passing to the assignee the lands conveyed by Anspach to Reed, the cashier, treating the lands conveyed in each deed as one tract, they say :—</p> <p>“ These two tracts of land lay, the one wholly in Schuylkill county, the other partly in Schuylkill and partly in the adjoining county of Columbia.- The former contained about 560 acres and was regarded as woodland with a possibility of coal. Its value was not great. The other tract was of smaller size, but being undoubted coal-land, developed in working order, was deemed of great value. This tract was held by the cashier in trust for the fund as well as himself. William G-. Reed, the cashier, however, when on the witness-stand, said that presently after his discovery of the embarrassed condition of the fund, that John Anspach was its chief debtor; that in Anspach’s hands were most of the moneys of the fund, and that because of Anspach’s insolvency, they could not be recalled for the purpose of adding to the strength of the securities held by the fund. He (Reed) individually endorsed each and every obligation given to the fund by Anspach, thus pledging his own private estate to meet the assumed deficiency, and passing to the fund whatever interest he had in the title to the other tract of Anspach land which he had been holding for his own security. This being done, the assignee was entitled to demand and receive both tracts in their entirety. The testimony fails to show clearly when the assignee first began to move in the securing of these benefits or lands. He swears that he never received from Reed, cashier, either of the deeds for these lands. Reed, however, while admitting that for a time he did retain the custody of the deed which was meant to protect himself also, says that he gave the key of the safe, which contained all the papers of the fund, to the assignee, and thus, he thinks, turned over the deeds to him. Whether the assignee received the deeds or not, the fact that lands — woodland and coal-land — in Schuylkill county were held by the fund as collaterals, was then and before then well known to the directors and assignee. The assignee acted upon this knowledge, and, upon the invitation of Anspach, went to Schuylkill county, accompanied by several stockholders of the fund, to inspect the lands. The company was met by Anspach, who took them on the tract of coal-land, and from the elevation of the coal-breaker thereon erected, pointed out to them the tract encircling them as the one he had conveyed in trust to the fund.</p> <p>“ While on the ground, one or two of the visitors met a stranger named Brock, by whom discredit was cast upon the title of Anspach. A man named Wood, known in former years to the visitors as a resident of Franklin county, was also met by the visitors, and he also cast doubts upon Anspach’s title. These declarations of Brock and Wood disheartened the companions of the assignee, and brought them to the conclusion that the tract, though plainly valuable, was yet to be of no benefit to the fund because of the insufficiency of Anspach’s title to it. They reported to Anspach the speeches of Brock and Wood, and were answered that, although there was some dispute, he thought his title good. Anspach had previously, by letter to the assignee, of 28th April 1862, represented the tract as a very valuable one in itself and to the fund, saying that about 20,000 tons of coal had already been shipped. The assignee also swears.that prior to this visit he had consulted F. W. Hughes, a lawyer, long resident in Pottsville, in extensive practice, and familiar with the titles to coal-lands in Schuylkill county, about Anspach’s title, and had been advised by Hughes that Anspach’s title was worthless; that O. W. Davis, his counsel in Philadelphia, had also advised him to the same effect. With this advice, touching the validity of the title to these lands, and the information upon the value of the lands themselves, the party returned to Chambersburg and told the result of their inquiries to such of the stockholders as met them. Those at home seemed to fall in with the opinion of the visitors that nothing was to be expected from Schuylkill lands. No further steps were taken by the assignee in the matter. The lands v?ere left to remain from that time (May 1862) as before, in the hands and management of John Anspach, until after the settlement and adjustment between Anspach and the assignee on 18th June 1864, when Anspach gave the drafts for $28,000 to the assignee, and apparently wound up or arranged the last of his indebtedness. Then the assignee informed Reed he had settled finally with Anspach; that his (Anspach’s) indebtedness was secured, ar.d that he (Reed) should reconvey the Schuylkill lands to Anspach. Reed did this by deed of 21st July 1864.</p> <p>“ Now it happened that afterwards, when the assignee, who was still the holder of Anspach’s obligation for $6000, and of obligation “ B,” upon which had been realized only the $8185.22 from the U. S. bonds given as collateral to it, in all about $17,000 of obligations, desired to collect them from Anspach, who delayed payment, it proved that the five builder’s mortgages, the only collaterals yet remaining, were valueless, being laid on lots in Philadelphia upon which no buildings had been erected, and upon which were prior mortgages. Suit upon the obligations, after some delay, resulted in a judgment for the assignee against Anspach for upwards of $17,000; but an execution issued returned empty to the assignee’s hand, Anspach proving insolvent.</p> <p>“ Touching the propriety of the assignee’s action in thus suffering Anspach to retain and manage for his own benefit the lands conveyed to Reed, from 1862 to 1864, and in finally advising thp reconveyance to Anspach, the exceptants offered at Pottsville testimony, oral and documentary. From this testimony it appears, first, that the assignee, when consulting F. W. Hughes, Esq., did so casually, exhibited to Hughes no papers or deeds, and in their brief interview so described the lands as to give Hughes the impression that the lands in question were those familiar to Schuylkill county men as the ‘Deborah Grant’ tract, to which in fact Anspach had no title.</p> <p>“ 2. That the tract upon which Anspach took the assignee and company was that upon which, being owned jointly by John Anspach and the wife of Gideon Bast, John Anspach had erected improvements, and which, being worked by Bast for his wife under a lease from Anspach, was and is known as the Bast mine or colliery; that this tract, which lies in the vicinity of the Deborah Grant tract, contained 60 47-100th acres, and was indisputably vested in John Anspach and Mrs. Bast, Anspach owning 7-16th of it when he conveyed to Reed, and drawing a royalty from the Basts for that proportion; that this land was and is of the most valuable coal-lands in the Mahanoy coal region, containing the Mammoth coal vein, and worth at that time over $400 per acre. Upon it also was a breaker, built by Anspach at a cost of $60,000, and belonging to him, thus making Anspach’s interest in the tract worth in Í862 over $70,000; that all of these facts were well known to Mr. Hughes, who, as counsel for the Eoulkes and others, in opposition to Anspach, had arranged the compromise by which Anspach quieted his title to the tract. Says Mr. Hughes, ‘ had the consultation been a full and explicit one, these facts would have been communicated to the assignee, and he been informed that to this tract Anspach had an indisputably good title;’ the title of Anspach moreover was recognised by the Basts, who leased from him and paid him royalty during the years 1862,1868,1864. The assignee also testifies that he did not at any time record his deed of assignment in Schuylkill or Columbia counties, and therefore never officially entered those counties in quest of these lands. The deeds from Anspach to Reed had been recorded in Schuylkill county on 21st February 1861, only six days after date of the second deed.</p> <p>“ The assignee, in fine, seems to have suffered himself to be dissuaded from following up the lands by the loose declarations of irresponsible parties accidentally met, the hasty assertions of a lawyer, given upon incorrect data furnished by the assignee himself, and the crude, ill-considered opinions of unqualified laymen. This laxity the auditors deem a weighty element in the scales when determining, after a review of the other facts in the case, the question of the liability for costs in the proceedings of this audit, which is the last question raised by the exceptions. The auditors are of opinion that the accountant ought in fairness to be decreed to pay these costs.” * * *</p> <p>The auditors made the following “ summary of facts—</p> <p>“ 1. They find that the assignee, in his third account, has, in form, complied with the order of the court to file a full account of his trust up to its date; but that, in substance, it contains errors and omissions which have been corrected by the auditors in their account.</p> <p>“ 2. That the assignee did not charge himself with all of the interest with which he was properly chargeable.</p> <p>“ 8. That he did not charge himself with all of the moneys which he had received on account of his trust.</p> <p>“ 4. That he did not charge himself with the judgments standing in his name against Reed, Richards, Washabaugh, Reilly & Sharpe, on Hammon’s docket, Seibert and McClure, but the auditors also find that he is not properly chargeable with them until collected.</p> <p>“ 5. That he has not charged himself with all the moneys received through John Anspach, Jr., to wit: $61 received October 13th 1863, on notes of McCoy, Linn & Co., and also $111.69, difference in discount on drafts of 18th June 1864.</p> <p>“6. That he has not charged himself with all the moneys received on the report of J. McD. Sharpe, Esq., to wit: the sum of $370.01, but this error is rectified in the final account stated by the auditors.</p> <p>“ 7. That he is not chargeable with the sum of $4996.29, as error in his first account.</p> <p>“ 8. That he took an undue credit in the items of certificates 523 and 524 in his third account.</p> <p>“ 9. That the assignee is not entitled to an allowance on his third account, because of his agreement not to charge one.</p> <p>“10. That his employment of counsel was eminently right and their fees properly paid.</p> <p>“ 11. That the assessments made in 1867, and paid, were insufficient to pay the actual indebtedness of the fund at that date.</p> <p>“ 12. That he did exchange notes held by the fund for other obligations, in part secured by collaterals which proved to be worthless, but whether he exceeded the bounds of that reasonable discretion which a trustee must be permitted to exercise, the auditors cannot say, inasmuch as the comparative value of the paper surrendered was not affirmatively shown.</p> <p>“ 13. That he did not, so far as the auditors can discover, sacrifice any of the collaterals in his hands by a sale for less than their value.</p> <p>“ 14. That he did not file any vouchers for the payments made by- him and entered in his three accounts, but that he exhibited many to the auditors in his first account, and many payments are matters of record; for others he exhibits no vouchers.</p> <p>“ 15. A majority of the auditors find that he made a feeble, insufficient attempt to reduce into possession the lands in Schuylkill county, which had, under his deed of assignment, been vested in him; that these lands were of the value of $70,000 and upwards, and were sufficiently valuable to have paid, if sold, the whole indebtedness of Anspach then due the fund.</p> <p>*******</p> <p>“We report two tabular statements — the one being an account proper between the assignee and the other parties, and showing as closely as possible every item of receipt by the assignee on account of the fund and every item of disbursement on same account, each with its proper date. The second is a summary or statement of results drawn from the first, and .showing the. amounts to be credited to the assignee and the amounts to be charged against him at the close of the various months and years of the trust, and also the balance for or against the accountant at each of said periods. This statement shows precisely the state of accounts at every one of the periods mentioned, and enabling any one to take a reasonably accurate view of the matter of interest, whether to be charged or not, and if charged, the amount thereof. * * *</p> <p>We refer to these statements as part of our report, and having stated the account thus fully, we simply restate the assignee’s third account, commencing with the balance on our full statement immediately after the filing of the assignee’s second account. At that time'they find the balance against the accountant to be $3729.70, we having embraced in same all the surcharges made by us that were earlier in date than the filing of second account.</p> <p>“ The tabular statement of balances shows a considerable balance in assignee’s hands for some years; and, although they are of opinion that a trustee need not pay out all the moneys on hand, but may, especially in a trust of such magnitude, and insolvent, as that now under consideration, prudently and justifiably keep some funds on hand to meet exigencies that may arise, yet they think the amount held by the assignee was too large, and was held too long continuously, to escape a charge of interest on same. They therefore charge him with interest on the sum of $8000 for six and a half years.”</p> <p>The auditors then stated an account, charging, the assignee with $10,341.76, and after allowing him credits for payments of debts due by the company and certain expenses, found against him a balance of $4800.05.</p> <p>They also stated an account of the whole management of the assigned estate from the beginning, arranging the items of both debit and credit under specific dates.</p> <p>Both the stockholders and the assignee filed with the auditors exceptions to their report.</p> <p>The exceptions of the stockholders were thirty-four, covering almost every particular found by the auditors.</p> <p>Their principal and most important exceptions related to the alleged negligence of the assignee in permitting the Schuylkill county lands to be reconveyed to Anspach whilst he owed and continues to owe to the estate the sum of $22,418.22. The 17th exception was:—</p> <p>“In the matter of the 16th exception. The auditors having found that the title to the Schuylkill county lands was vested in the assignee, and having found that Anspach’s interest in those lands was worth $70,000, and having authorized W. Gr. Reed to reconvey these lands to John Anspach, and never having read the deed of assignment or recorded it in Schuylkill county, erred in not having further found that the assignee was guilty of gross negligence in his management of this part of the trust fund, and in not having charged the assignee with the sum of $22,418.22, with interest from the 22d April 1871, which he now alleges is still due by John Anspach to the Saving Fund.”</p> <p>The assignee’s exceptions related to the auditors going behind his first and second accounts and the reports of the auditor on them; and changing the accounts and the results; he averring that the former proceedings on them were conclusive; in charging him with interest, and generally to the findings pf the auditors against him.</p> <p>In their report on the exceptions the auditors say:—</p> <p>“ It is the case of a trustee who was not content or permitted first to exhaust the assets and then assess the partners, keeping the two works distinct, but who simultaneously attempted both, who cast the moneys derived from each source into a common fund, and paid them out thus confused and intermingled. By this attempt the assignee has so involved himself and- his relations to creditors and to his partner principals, that one statement now must suffice for both, and his present position as to the latter be learned only through his dealings with the former.”</p> <p>As to the 17th exception they say:—</p> <p>“In the report a majority of the auditors did find that the Schuylkill lands passed to the assignee, and that he authorized their reconveyance. But since the re-argument and re-examination of the evidence, the auditors have now somewhat modified their former finding, so far as relates to the assignee’s authorizing or directing W. Gr. Reed to reconvey these lands to Anspach. We are all still of opinion that the management of these lands was unfortunate and damaging to the Saving Fund. Undoubtedly there was a lack of 'such care, caution, discernment and thoroughness as the case demanded. But a majority of us further hold that the exceptants shared in this as well as the assignee. Both he and they were undoubtedly anxious to save as much as they could for the Saving Fund, and in concurrence suggested and tried several ways to advance their interests, or rather to break the weight of their common loss. And inasmuch as the present parties were at that time in accord (the exceptants being stockholders and not creditors), and working for their common weal, no doubt mutually influencing each other, a majority of us think it inequitable, now that the vision is clear and the error apparent through later light, that the responsibility shall be cast upon the assignee alone, because of a line of action, unfortunate in its issue, but shared in at the time by the live or active men of the stockholders.”</p> <p>Mr. McGrowan dissented from this finding, saying :—</p> <p>“ I have tried to, but cannot, concur in so much of this finding as imputes contributory negligence to the stockholders — holding that the final accord to which they came with the assignee as to the Schuylkill lands was produced or occasioned by the representations mainly of the assignee himself.”</p> <p>The court (Rowe, J.) confirmed the report of the auditors without delivering an opinion.</p> <p>The association appealed from the decree of confirmation.</p> <p>They assigned thirty-one errors — being that the court did not sustain the exceptions to the report of the auditors, and confirmed the report. The 15th assignment was that the court overruled their 17th exception, asking that by reason of his negligence as to the Schuylkill county lands, the assignee should be charged with $22,418.22, the amount of Anspach’s debt to the association with interest, on the ground that the debt had been lost by that negligence.</p> <p>This exception raised the question mainly discussed in the opinion of the Supreme Court.</p>

<p>Appeal from the Court of Common Pleas of Franklin county: No. 49, to May Term 1874.</p> <p>This appeal was by William McLellan, assignee for the benefit of creditors of the Chambersburg Saving Fund Association, from the decree of the court below confirming the report of the auditors on his account as assignee.</p> <p>The facts in the case, the findings of the auditors, &c., and the decree of the court, are all contained in the Chambersburg Saving Fund Association’s Appeal, the case immediately preceding this.</p> <p>The appellant assigned thirteen errors, of which eleven related to the conclusiveness of his first and second accounts, they having been before submitted to an auditor and confirmed by the court.</p>

<p>1. By a decree of the Supreme Court, an assignee was held liable for a debt owing to thd assigned estate, because he had reconveyed land of the debtor, held as security for the debt, and found by auditors to be of sufficient value to pay it, without payment, whereby the debt was lost; and the court below was directed to ascertain the amount of the debt. On the hearing for this purpose in the court below, Held, that the assignee should not be allowed to show that by reason of a prior mortgage, of which he had been ignorant, the land was valueless as a security for the debt.</p> <p>2. The mortgage being of record, the assignee could have found it by reasonable diligence, and should have given it in evidence on the former hearing : the former decree was conclusive as to the value of the land.</p> <p>3. On the first hearing the auditors found that the land was worth §70,000; the mortgage was §25,000, and the debt to the estate was §22,000. Held, the land having been sold under the mortgage for §10,000, to the mortgagee who held other liens amounting to §300,000, that there was no presumption that §10,000 was its actual value.</p>

15. This was a feigned issue from the Begister’s Court, filed in the Court of Common Pleas December 15th 1871, in which William M. Derr, acting executor of L. T. Calvin Greenawalt, deceased, was [plaintiff,'and Lorenzo Greenawalt, Wilhelmina Greenawalt and Catharine Greenawalt, “some of the.heirs at law” of L. T. Calvin Greenawalt, deceased, were defendants.

<p>Error to the Court of Common Pleas of Dauphin county: No. 14, to May Term 1874.</p> <p>This was an action of assumpsit, brought April 25th 1861, by James Bricker, for the use of Fink & Brother and Horner & Brother, against James J. Dull and Thomas Collins, - partners under the name of Collins, Dull & Co. Service was made on Dull only. There was a return of “ nihil ” as to Collins.</p> <p>The first count of the declaration, which was filed October 9th 1868, set out that during the years 1859 and 1860 the defendants were contractors with the Bedford Railroad Company for constructing their road: that Thomas Keating, Michael McCabe and John Drew were sub-contractors of the defendants, and the plaintiff was a merchant; that the said sub-contractors desiring to purchase goods from the plaintiff, he refused to furnish them with goods unless the defendants would agree, in consideration thereof, to pay for them out of moneys coming to the said sub-contractors from the defendants. The declaration averred that the defendants, in consideration that the plaintiff would furnish goods to the said subcontractors, promised to pay for the goods out of moneys coming to them from the railroad company, on their estimates, as soon as the same should be received by the defendants and be due to the said sub-contractors, who agreed thereto. The declaration further averred that, in consideration of the promise, the plaintiff sold to the said sub-contractors goods of the value of $2500, and that the defendants had long since received said sum from the railroad com pany on the estimates of said sub-contractors. The second count was for $3000, money received by the defendants to the use of the plaintiff.</p> <p>On the 24th of October 1873, Dull pleaded “ Non assumpsit and payment with leave,” &c.</p> <p>The following are rules of the Court of Common Pleas of Dauphin county:—</p> <p>“ 67. Either party to an action may require in writing of the other party an exhibition of any paper or papers upon which the action is founded, or which is relied on as a defence, and to have copies thereof, if necessary, made at Ms own expense, within twenty days after such requisition; and upon the refusal of either party to make such exhibition, or permit such copies to be made, the same shall not be given in evidence on the trial.</p> <p>“ 68. If the plaintiff s action be a general assumpsit, not founded on a writing, he shall, upon reasonable request, before the defendant, be compelled to plead; or where a plea has been entered within twenty days after such request, file, together with his declaration, a written statement of the account or demand that he purposes to give in evidence, and rely on at the trial; and on failure so to do, no evidence thereof shall be received.”</p> <p>Under these rules the defendants gave these notices to the plaintiff’s attorneys, each notice stating the action and dated January 2d 1864</p> <p>“ Gentlemen: You are hereby notified and required to exhibit to the defendant, James J. Dull, within twenty days hereafter, any paper or papers upon which the above action is founded, and also allow him to have a copy or copies thereof, made at his own expense, as provided by the sixty-seventh rule of said court.</p> <p>“ Gentlemen: You are hereby requested to file in the above-stated case, within twenty days hereafter, a written statement of the account or demand it is purposed to give in evidence and rely on at the trial thereof, as provided by the sixty-eighth rule of said court.”</p> <p>On the 28th of January 1873, the death of James Bricker was suggested, Elizabeth A. Bricker and William H. Bricker, his administrators, substituted, and the case marked to the use of his estate.</p> <p>The cause was tried May 6th 1873, before Pearson, P. J.</p> <p>The plaintiff offered separately the following orders, produced by defendants on notice:—</p> <p>“ Section 5, Bedford Railroad.</p> <p>“ Messrs. Collins, Dull & Co.,</p> <p>“ Please pay James Bricker one hundred dollars out of November estimate and oblige, Yours,</p> <p>“$100. Michael McCabe.”</p> <p>“ Section 6, Bedford Railroad.</p> <p>“ Messrs. Dull, Collins & Co.,</p> <p>“ Please pay J. Brieker three hundred and twenty-five dollars and two cents out of September, October and November estimates, and this shall be your receipt, and oblige,</p> <p>“$325.02. Thomas Keating, Agent,</p> <p>for Thomas B. Keating.”</p> <p>To be followed with proof that the orders had been accepted and not been paid, and had been, since the bringing of the suit, in the hands of defendant.</p> <p>Objected to, as coming within the Statute of Frauds, and because defendants had not been furnished with copies and statement of the demand under the 67th and 68th rules of court.</p> <p>The offers were admitted and bills of exception sealed.</p> <p>The plaintiffs offered the record of an attachment-execution, in Bedford county, to September Term 1861: Goldsmiths. Brieker & Drew; in which Collins & Dull were garnishees, and in which, in answer to interrogatories, the garnishees, as a defence, set out that this suit was pending in Dauphin county to recover the same money, and defeated the recovery there, by showing the suit was for the same debt as that sued on here.</p> <p>Objected to, amongst other things, because copy, &c., was not furnished under the rules of court.</p> <p>Per Curiam. — “ The object of both the rules of court was to give, the parties litigant fair notice of the claims demanded. Where a party states in a controversy between others that he had full notice of the claim, we are unable to see what further notice is required.”</p> <p>The offer was admitted and a bill of exceptions sealed.</p> <p>The answer of Dull to the second interrogatory was: “ Dull, Collins & Co. had business transactions with John Drew, but not with James Brieker. John Drew was a sub-contractor under Dull, Collins & Co., on the Bedford Railroad. At the time of the service of the writ in the above case, and still, there is a balance on the books of Dull, Collins & Co., in favor of John Drew, of $1183.86; but it had previously been understood and agreed between Dull, Collins & Co., James Brieker and said John Drew, that said money should go and be paid to said Brieker in payment of the indebtedness of said Drew to said Brieker, and said Brieker, as said Dull, Collins & Co. have learned, before the service of the writ in this case, assigned and transferred said moneys to Fink & Brother and Horner & Brother, and the said last-named parties have a suit pending in Dauphin Common Pleas for the same-against Dull, Collins & Co.”</p> <p>The plaintiff then gave evidence by John Fulton, engineer of the Bedford Railroad Company, that Keating’s estimates for September, October and November were $861, and their final estimate was $2449.20, and that McCabe’s November estimate was $136,. and his final estimate $3319.32.</p> <p>W. D. Shell, president of the railroad company, testified that the plaintiff sent him some orders on Collins & Dull to get their acceptance. Witness asked Dull. He said he would not accept them absolutely, only conditionally. He would pay them’ Avhen he got the funds from the company and it was due to them (subcontractors) for work done. Bricker wanted the orders returned. Dull never returned them. Dull & Collins claimed more than their estimates and got it; they got bonds. The orders were to be paid when they realized the money on the bonds. Dull agreed to pay the orders out of the fund as presented, provided the money was then due them. An auditor was appointed, and all were paid as he reported. This payment was made in 1861.</p> <p>There was evidence for the defendants that the whole amount due McCabe and Keating as sub-contractors had been paid to them on orders and in cash.</p> <p>In the course of the trial there was other evidence for the purpose of showing an indebtedness from defendants to McCabe and Keating; the acceptance of the orders by defendants (claimed to be shown by letters from Dull, and from Collins to Bricker and otherwise); that they had funds in their hands belonging to the drawers; and that they had not been paid.</p> <p>Also, other evidence by defendants in answer to the plaintiff’s case.</p> <p>The defendants submitted points which it is not necessary here to notice.</p> <p>The court charged:— * * *</p> <p>“ The only two claims before you are the orders already recited.</p> <p>[“ We are asked by the defendants to instruct you that there can be no recovery on account of the failure to comply with the 67th and 68th rules of court, but decline so to do for these reasons: The evidence shows that the two orders were in the hands of the defendants, and produced by them on -notice; therefore they could not require copies, nor ask to have them furnished. Whether a statement of the claims now demanded should have been furnished, is a question for you as well as for the court. There is no doubt a bill of particulars should be furnished on such a notice; but it is said the defendants well knew that these two orders were demanded, as appears from their answers as garnishees in the suit of Goldsmith v. Bricker & Drew, in the Common Pleas of Bedford county, in which they state that they were sued for this same claim of $325, for the use of Einlc & Brother and Horner & Brothers, to whom the claim was then assigned. If from that answer put in as garnishees you are satisfied that they well knew this was the .order in suit, they could scarcely require notice thereof under the rule of court. If that was left in doubt and uncertainty in their minds, notice should have been given.] It seems that these two assignees of the claim were afterwards satisfied in some way, and the money was coming to Bricker most probably, all of that is for the jury.</p> <p>“ There is another matter worthy of consideration. Although the defendants knew in 1861 that this was an item claimed, did they know that it was still claimed in 1864 ? You must be satisfied that such was the case, else there can be no recovery for want of notice of the items claimed. The $100 order given by Michael McCabe was probably never paid to him.. Did the defendants know that it was demanded in this suit ? If they did not, there can be no recovery without notice. If they did know and understand that it was part of the claim, and they accepted the order, there can be a recovery of the amount with reasonable interest.</p> <p>“ Did the defendants accept these orders ? It is very certain they did not to Mr. Schell, as the orders held by him were never given over, but retained by him, whilst these were in defendant’s hands. Schell would not receive a conditional acceptance, and they would not give any other. Can you infer an acceptance from the lifting and retention of the orders, together with the letters which you will have out with you, and the answer of Mr. Dull as garnishee ? In one of his letters he intimates that payment will be made if the sums are due to the contractors on their estimates being paid. You must endeavor to ascertain from the whole evidence, whether there was a promise to pay these two orders. If there was, the defendants are bound. If not, the plaintiff cannot recover.</p> <p>[“ It is said there can be no recovery here under the Statute of Frauds,- as.it is the promise to pay the debt of another. As we understand this claim, it was a promise by defendants to pay their own debt. If they received the money of the contractors to pay over to their creditor, and accepted and lifted the order under an agreement to pay, it became their own debt — they owed the money.] * * *</p> <p>“You must be satisfied from the evidence that the orders were accepted and agreed to be paid, else there can be no recovery.</p> <p>“On the whole the ease is not a little confused, and requires the careful consideration of the jury. You must judge whether any part of these orders have been paid or was included in any of the settlements. If not, and there was a promise to pay, the plaintiffs are entitled to recover.” * * *</p> <p>The verdict was for the plaintiff for $781.02.</p> <p>The defendant Dull removed the record by writ of error to the Supreme Court.</p> <p>He assigned for error:—</p> <p>1,. 2. Admitting the orders of McCabe and Keating in evidence-</p> <p>5, 6. The parts of the charge in brackets.</p>

<p>1. A married woman owned land which she farmed,'her husband managing for her; he had long been insolvent and without credit; her credit was good. He purchased a horse for her and signed a note for the price, “ John E. Seeds for Josephine Seeds.” She received the horse and used it on the farm, and acknowledged her liability for its payment. The horse was seized for the husband’s debt before it was paid for. In an issue on a' sheriff’s interpleader, Held, that whether he bought the horse for himself or for her, was a question for the jury.</p> <p>2. Where a wife has separate estate and buys goods on its credit, she may hold them against the creditors of the husband.</p> <p>3. .To protect goods from the husband’s creditors, it is incumbent on the wife to establish that their purchase was on the credit of her separate estate.</p>

58. This was an action on the case,, commenced0August 9th 1870, by Isaac Knoll against John Light, Henry Light and Cyrus Light, for nuisance in swelling water back on the plaintiff’s land.

17. This was an action of debt, brought December 31st 1869, by W. H. Woods, P. M. Bare, John Bare, and D. W. Woods, “for Samuel Douglass,” against' H. S. Wharton. The defendant pleaded “Nil debet and payment with leave,” ahd afterwards added the plea of set-.off.

22, to May Term 1874. The proceedings in this case were under the Landlord and Tenant Act of April 3d 1830, Pamph. L. 187, 2 Br. Purd. 884, before a justice of the peace, to recover possession of premises alleged to have been demiséd,for non-payment of rent.

<p>1. A wife made a deed for real estate which she owned, her husband not joining in it; his consent, not given in the manner and form required by the statute, was of no effect and after her death he could recover the land as tenant by the curtesy.</p> <p>2. Evidence that the grantee of the wife held a note against the husband, which was given to her as the consideration for the land, was inadmissible in ejectment for the land by the husband after the wife’s death.</p> <p>3. Johnson v. Fritz, 8 Wright 110, remarked on.</p>

<p>1. Runk gave Harris a mortgage to secure a bond of same date; the condition of the bond was recited toiidem verbis in the mortgage; on the margin of the bond was written: “ Mortgage bond. See U. S. stamp on mortgage." After recording this mortgage, Runk gave another to Miller. After-wards Harris sued Runk on the bond and filed in the suit an exact copy of the bond (including the marginal memorandum) as her claim; she obtained judgment in this suit against Runk, and assigned it on the record to Shoemaker; she afterwards entered satisfaction on the record of her mortgage; “ satisfaction" was noted also on the mortgage index of her mortgage. Afterwards De Witt took an assignment of the Miller mortgage. In the distribution of the proceeds of the sheriff’s sale of Runk’s land, Held, that- the transfer of the judgment carried the mortgage with it; the lien of the judgment was carried back to the date of the recording of her mortgage, and the entry of satisfaction being void as to the assignee of the judgment, De Witt was postponed to Shoemaker.</p> <p>2. The assignment was a fraud on the assignee of the judgment; the subsequent mortgagee was not prejudiced by it, and could not be benefited by it.</p> <p>3. The lien of the Harris mortgage remained after the entry of satisfaction as before; Miller as subsequent mortgagee was in no better or worse position than she was before.</p> <p>4. A copy of the bond on which the judgment was obtained being filed in the suit, showed sufficient to put De Witt upon inquiry as to the mortgage; he had therefore constructive notice that it was for the same debt as the mortgage and that the entry of satisfaction was void.</p> <p>5. If a judgment is founded on a statutory lien or. a mortgage-debt, its lien relates back to the date of the lien of the claim or the mortgage.</p> <p>6. Hartz v. Wood, 8 Barr 471 ; Moore v. Cornell, 18 P. R. Smith 320, followed.</p>

<p>Error to the Court of Common Pleas of Dauphin county: No. 78, to May Term 1874.</p> <p>This was an issue under a sheriff’s interpleader’, to August Term 1873, in the court below, in which Benjamin G. Peters was the plaintiff and Felix Landis and Andrew Light were defendants.</p> <p>The circumstances in the case, so far as necessary to understand the questions decided in the Supreme Court, are as follows:—</p> <p>Richard A. Middleton was the owner of ironworks and was largely indebted. Amongst other debts was a bond with warrant to confess judgment, dated July 12th 1870, for $10,000, to John W. Middleton; this bond was assigned to Benjamin G. Peters.</p> <p>On the 21st of October 1871, Richard A. Middleton executed a deed to Andrew Light, Felix Landis and John J. Nissley. The deed recited that Middleton had “ become involved in pecuniary embarrassment, and is now so heavily indebted that his creditors (other than those holding mortgage security for their claims) cannot hope to realize anything on their claims, either under a voluntary deed of assignment for the benefit of creditors, or under proceedings in bankruptcy, if his estate was distributed in that way; but it is believed if his creditors take his furnace and other estate, real and personal, in hand, and work it, the debts may be all paid, and most of the creditors have already agreed to try this experiment.”</p> <p>In consideration of the premises and of one dollar, Middleton conveyed to Light, Landis and Nissley in trust: A certain anthra-</p> <p>cite furnace and other real estate and personal property, situated and being at Union Deposit, * * * together with all the other real and personal estate of every kind whatsoever — exceptas hereinafter excepted — of the said Richard A. Middleton, wheresoever the same be situate, * * * excepting and reserving only the household furniture of the said assignor, and such additional personal property as is exempted by law from levy and sale, if the former does not cover that amount. To have and to hold the property * * * so assigned as aforesaid unto the said Andrew Light, Felix Landis and John J. Nissley, * * * and their successors in the said trust, who may from time to time be elected by the creditors of the said assignor; the said trustees and their successors in office shall work the furnace and carry on the business of manufacturing iron and sell the same, so long as the creditors may determine it to be their interest to do so, until all the debts other than mortgage-debts are paid, and these also if the creditors so determine, with interest; and whenever the creditors shall determine that the estate so assigned shall be wound up, the same shall be converted into money by public sale, as speedily thereafter as may be consistent with the interests of the creditors, among whom the proceeds, after deducting expenses, shall be distributed pro rata according to the amount of their respective claims ; the net earnings of the estate and income thereof shall alsb be applied, from time to time, to the payment .of the debts of the assignor in the same manner. The creditors themselves to have the right to determine by vote, graduated by •the amount of their respective claims, or otherwise, as they may agree, when the estate so assigned shall be converted into money, when new trustees shall be appointed, and all other matters pertaining to the management of the assigned estate. The said assignors shall be credited with all net earnings while the furnace is worked, and with the net proceeds of the sale of the assigned estate, if the same will be sold, by the creditors severally on their respective claims, as such payments are or may be made to them, from time to time, by the said trustees or their successors in the trust,”</p> <p>Nissley declined to act under the'deed of trust; the other two trustees took possession of the property, and continued to operate the ironworks and manufacture iron for about eighteen months.</p> <p>A number of the creditors by writing agreed that the trustees should carry on the business under the terms of the deed of trust.</p> <p>At the time of making the deed, Middleton had scarcely any stock to run the furnace; his personal effects were under execution; were soon after sold by the sheriff, and were all purchased by the trustees, to be used in carrying on the business. After the conveyance, the trustees continued the business of making iron at their own expense and on their own credit. Iron was sold from time to time as made; their advances in part repaid, and the money paid by them for the property bought at the sheriff’s sale repaid.</p> <p>Peters had judgment entered on the bond from Richard A. Middleton to John W. Middleton, and assigned to him (Peters); execution was issued on the judgment, and levy made March 20th 1873 on 900 tons of pig metal, which had been manufactured by the trustees after the execution of the deed of trust, as the property of Richard A. Middleton. The levy was also upon other personal property, which Richard A. Middleton passed under the deed of October 21st 1871. Neither John W. Middleton, nor Peters, his assignee, acquiesced in the deed of trust or did anything to confirm it. Notice was given to the sheriff that the property levied on belonged to Light and Landis, the trustees. About 300 tons of this iron were released from the levy and sold by the trustees.</p> <p>Upon the application of the sheriff, an issue was framed, September 16th 1873, under the Sheriff’s Interpleader Act, “Benjamin Gr. Peters v. Andrew Light and Felix Landis, assignees for the benefit of creditors of Richard A. Middleton.”</p> <p>The declaration was in the usual form on a wager, that the property in the goods levied on was not in the defendants.</p> <p>The defendants pleaded that the property was in them.</p> <p>The plaintiff’s points and their answers were as follows:—</p> <p>“ 1. If the defendants, at the time the sheriff levied upon the property in question, claimed the absolute ownership thereof, as assignees under the deed of assignment from R. A. Middleton, as set forth in their notice to the sheriff, given in evidence, they cannot now upon the trial set up a limited or qualified ownership or title thereto, nor claim to hold said property to secure them for advances made and liabilities incurred in its manufacture, but must succeed, if at all, by establishing their title under the claim of which they compelled the sheriff to abstain from selling, and forced the plaintiff to the trial of this issue.” • ■</p> <p>Answer: “ As we understand the first point, it might be correct in law if sustained by the facts.</p> <p>“ If a man has a mere lien on property which might be discharged by payment on the part of the creditor, about to make or having made a levy, it would be illegal to set up an absolute claim of ownership under the Interpleader Act, as the plaintiff in the execution would probably, in consequence of the character of the claim, neglect and be prevented from making a tender of the sum due. But as we understand this notice, the character of the defendants’ claim is fully set forth. They say that they claim the property partly by sheriff’s sale, partly by assignment from Richard A. Middleton, and but little of it came through that source, and also because they manufactured it themselves. Therefore it is sufficient if they make good their title by either of those means. Whatever title they establish by either of those sources will be sufficient, or they may make part good by one, the other by a different ownership, general or special.”</p> <p>“ 2. The deed of assignment given in evidence by the defendants, and under which they claim, dated October 21st 1871, is fraudulent in law, because by its very terms it tends to hinder, delay and defraud creditors, and is voidable by a non-assenting creditor of the assignor, who may avoid it by issuing execution and levying upon the property assigned.”</p> <p>Answer: “ The deed of assignment from Middleton and wife we consider good and valid. It is very certain that the parties did not intend to make a general assignment for the benefit of creditors, but the instrument operates as such according to adjudicated cases; therefore it cannot operate as a fraud. Also it could not tend to delay, hinder or defraud creditors, as there was no property out of which the creditors could be defrauded. The personal property in existence was all sold by the sheriff, independent of the deed of assignment. All of the iron now in controversy was created by the assignees with their own money or credit; no part of it belonged to Middleton, and the real estate had liens on it by mortgages and judgments to its full value, and nothing done by these parties prevented the creditors from selling it when they thought proper.”</p> <p>“ 3. Said assignment is fraudulent in law and voidable, because under the trusts declared therein the assignees cannot be compelled by an individual creditor to settle up the trusts within the time contemplated by the Acts of Assembly relating to trusts for the benefit of creditoi’s, but are expressly authorized to carry on the business so long as a majority of the creditors may desire.”</p> <p>Answer: “ It matters not what form the deed assumed if it was a valid assignment for the benefit of creditors. Any one interested in the estate as a creditor could compel a settlement of the trust as soon as the year allowed by law had expired.”</p> <p>“4. If the said deed of assignment, upon its face, contains provisions that tend to hinder, delay and defraud creditors, no subsequent acts of the assignor or assignees can give it validity as against a non-assenting creditor; nor can its validity in any way depend upon the amount or value of the property which passed under it, or upon the nature or amount of the encumbrances to which the same was subject, and that all the evidence admitted on these points and excepted to should be withdrawn from the consideration of the jury.”</p> <p>Answer: “We can see nothing in the writings, or the evidence in the case, which tends to delay, hinder or defraud the creditors of Richard A. Middleton. We have already said that the deed was a good assignment for the benefit of creditors under the Act of Assembly; and even if we are in error on that subject, the ■arrangement has no tendency to delay, hinder or defraud any creditor; they could proceed against the real estate without let or hindrance, and, as we understand the evidence, there was no personal property belonging to Middleton which came into the defendants’ hands unless by judicial sale, except, perhaps, a few old railroad cars of little value and one day’s supply for the furnace.”</p> <p>“ 5. If the jury should believe from the evidence that, at the time the levy was made under plaintiff’s execution, there was sufficient property in the hands of defendants to reimburse the expenses and liabilities incurred by them as assignees, and to satisfy said executions, the plaintiff is entitled to recover in this issue, even if the court should hold that said defendants may lawfully claim in this issue such reimbursements.”</p> <p>Answer: “ This point answered in the negative. Even if the deed referred to cannot operate as a valid assignment under the statute; but if the defendants, with the assent of the mortgage and other lien-creditors, took possession of the furnace with the assent of Middleton, under an arrangement to work it for the benefit of his creditors, themselves among others, got the personal property by purchase and carried on the business at their own expense, they are entitled not only to be reimbursed their outlays, but also be repaid their debt, before being obliged to give up the property made by themselves, and all of the money made by their labor and management must be divided among all of the creditors (themselves included) in proportion to the amount of their respective debts, and there is nothing illegal in such an arrangement under the facts in evidence in this case, unless there was evidence of actual fraud, which was not pretended.”</p> <p>The court charged also :—</p> <p>“ That the deed of Middleton was a valid assignment for the benefit of their creditors, for the reasons there given, and that there was nothing in the writings or disclosed in the case, which would amount to a fraud in law; that, therefore, there was nothing to destroy the defendants’ title to the property levied, and which was in their possession at the time.”</p> <p>The verdict was for the defendants.</p> <p>The plaintiffs took a writ of error, and assigned for error the answers to the points and the portion of the charge above given.</p>

<p>1. A testator made bequests and devises to his wife, also, general pecuniary legacies to others; he gave to Zeigler “ during his natural life the interest of $2500, owing by the Sulouffs and secured by mortgage ; * *■ * and if the principal be paid in the life of Zeigler, I direct the same to be reinvested, .to secure the payment of the annual interest to him.” He also made a residuary bequest. The widow elected to take against the will. The balance on the executors’ account did not include the mortgage, which had some years to run. The Orphans’ Court decreed that one-half the balance of the personal estate as it appeared on the account should be paid to the widow as her share under the intestate laws; that all the legacies should be. paid from the remainder; that from a balance still remaining, the executor to retain $1250, that he might on the maturity of the mortgage, supply the half of it, to be taken by the widow and invest $2500 for Zeigler for life. Held to be correct.</p> <p>2. The election of the widow did not destroy the right of the decedent to make a will and appoint an executor, in whom the whole personal estate vested for administration and distribution.</p> <p>3. Trom the part not belonging to the widow the general and specific legacies were to be first paid, and the remainder, if any, go into the residue.</p> <p>4. The widow was not entitled to half the mortgage specifically.</p> <p>5. The executor should have included it in the inventory, although he could not be required to distribute it until he collected it, which he was bound to do as soon as it was due.</p> <p>6. The title of the widow is through the executor, as it would be through an administrator if there were no will. She could not maintain an actio.n against a stranger for any part of her share.</p>

<p>Error to tbe Court of Common Pleas of Franklin county: Of May Term 1874, No. 74. _</p> <p>_ This was an action of ejectment, commenced September 1869, by Abraham Brinley and Ann Jane Brinley his wife, in her right, and John Wilson, against William Shearer and Elias Shearer, for a tract of land in Fannet township.</p> <p>The land originally belonged to Samuel Moore, who, by his will dated January 21st 1825, and proved April 1st 1825, devised it as follows:—</p> <p>“I leave and bequeath to my daughter Nancy Wilson (otherwise Moore), wife to William Wilson, part of the place I now live upon after the death of her mother Catharine Moore, otherwise Patterson * * * supposed to be thirty-five acres of land, be the same more or less, and no debt or debts that her said husband William Wilson, have contracted or may contract shall be any lien or embarrassment, upon said described thirty-five acres of land, be the same more or less, but to be entirely for the support of my daughter Nancy Wilson (otherwise Moore) and her children or issue, and at the death of my said daughter, my grandchildren, if of age, they may sell the said thirty-five acres of land, be the same more or less; that is, the children or issue of my daughter Nancy Wilson (otherwise Moore).”</p> <p>To April Term 1827, of the Court of Common Pleas of Franklin county, Thomas H. Crawford recovered a judgment for $190.08 against Catharine Moore, William Wilson and Thomas Redman, executors, &c., of Samuel Moore, deceased. A fi. fa. on this judgment was issued April 26th 1828. On the 17th of May 1828, an inquisition was held and the land was condemned. On the 14th of April 1838, a venditioni issued. On the 10th of August, the land was sold by the sheriff to Jacob Shearer, and the deed acknowledged October 2d, 1838. There had been no scire facias issued on the judgment to bring in the widow and heirs of the decedent. Nancy Wilson, the daughter of the testator, died on the 11th of May 1854. Mrs. Brinley and Wilson are her only children.</p> <p>The cause was tried November 7th 1873, before Rowe, J., when the foregoing facts appeared in evidence. There was evidence also by the defendants for the purpose of raising an equitable estoppel against the plaintiffs. The only question discussed and decided by the Supreme Court was as to the validity of the sheriff’s sale.</p> <p>The plaintiffs’ fourth point, which was affirmed, was :—</p> <p>“ The sale of the land in 1838,- by Sheriff Burns, on writ of venditioni exponas, and his deed to Jacob Shearer for the same, were invalid, and conferred no title upon the purchaser, unless a writ of scire facias was previously to said sale issued against, and served upon the widow, heirs at law and devisees of Samuel Moore, deceased, and that any such writ of scire facias was so issued and served, the defendants have wholly failed to show.”</p> <p>Judge Rowe instructed the jury that under the evidence Mrs. Brinley was not estopped from claiming the land; and as to Wilson, submitted the question of estoppel to the jury.</p> <p>The jury found for Mrs. Brinley for one undivided half of the land; and as to the other, they found for the defendants.</p> <p>The defendants took a writ of error, and, amongst others, assigned for error the answer to the plaintiffs’ fourth point.</p>

61. This was an action of assumpsit, brought to April Term 1872 of the court below, by The Dillsburg & Mechanicsburg Eailroad Company against Eobert C. Bucher. The plaintiffs were incorporated under the Eailroad Law of April 4th 1868, Pamph. L. 62, 2 Br. Purd. 1211.

<p>Error to the Court of Common Pleas of Cumberland county: No. 93, to May Term 1874.</p> <p>The proceedings in this ease were under the following circumstances :—</p> <p>On the 2d of February 1869, an action of debt was commenced by John B. Reeser against David Sponsler and William Y. Johnson. On the 17th of February 1869, William Y. Johnson and Samuel P. Johnson, who were partners, made a voluntary assignment of all their property, individual and partnership, to R. H. Thomas and William J. Stees, for the benefit of their creditors. On the 5th of March there was an award of arbitrators for $231.33 in the action of debt against Sponsler and William Y. Johnson. On the 19th of March 1869, proceedings in bankruptcy were commenced against the Johnsons, the voluntary assignment being one of the alleged acts of bankruptcy. During the pendency of these proceedings, the voluntary assignees sold some of the assigned property, real and personal. The Johnsons were adjudged bankrupts as of the 19th of March; and on the 22d of May, the register in bankruptcy assigned all the estate of the Johnsons to George Bitner, who had been chosen assignee in bankruptcy. Bills were filed in the Circuit Court of the United States by the petitioning creditor and the assignee in bankruptcy, to require the assignees, under the voluntary deed, to surrender the property conveyed to them, and deliver up their deed to be cancelled.</p> <p>On the 16th of June the Circuit Court decreed:—</p> <p>“ That the assignment for the benefit of creditors in the proceedings mentioned, made by the bankrupts therein named to the said Stees and Thomas, is null and void, and that the same be can-celled and delivered up to the assignee in bankruptcy; so, however, and provided that all acts heretofore duly performed by them in execution of the trust, purporting to be vested in them under the said assignment, be deemed valid and effectual, on their duly accounting as hereinafter directed; and it is ordered that they desist, from and after this decree, from acting therein save as hereinafter directed. It is further ordered that they forthwith account to the assignee in bankruptcy for all proceeds of sales heretofore made by them, including the sale of real estate to Urich, and that they be allowed their reasonable expenses and charges. The account to be taken before a master to be appointed by this court, if either party so request, and that they surrender and deliver all the remaining assigned estate and effects, to the said assignee in bankruptcy. And that all costs be paid out of the assigned estate.”</p> <p>The assignees in the voluntary deed, under the decree of the Circuit Court, delivered all the remaining property, &e., of the bankrupts to the assignee in bankruptcy, who sold the personal estate of the bankrupts. He also sold two lots in the borough of Mechanicsburg, the individual property of William Y. Johnson, to Jacob Coover for $1300. On his judgment against Sponsler and Johnson, Reeser issued a fi. fa. on the 26th of September 1871; and on the 13th of November a levy was made on William Y. Johnson’s interest in several lots of land, two of which were those sold by the assignee in bankruptcy to Coover. On December 18th 1871, No. 19, to January Term 1872, Reeser issued a venditioni, and the sheriff advertised the real estate levied on for sale on the 5th of January 1872.</p> <p>The assignee in bankruptcy then presented a petition to the Court of Common Pleas of Cumberland county, setting forth the foregoing facts, and averring “ that the said W. Y. Johnson, by the deed of assignment to the said Thomas and Stees, parted with all his interest in said real estate on Eeb. 17th 1869, that the same became vested in your petitioner under the deed to'‘him and by-the decrees of the United States Circuit Court; that the judgment of the said Reeser is not a lien thereon, or upon any part thereof, because not obtained until March 5th 1869, after- the said Johnson ceased to own any title thereto, and that a sheriff’s sale thereof, as contemplated, will not divest the title, but will subject the estate of said William Y. Johnson to much and troublesome litigation in the hands of your petitioner, and impair the value of the title to that remaining unsold by your petitioner, to such an extent in view of several claimants therefor, growing out of said intended sheriff’s sale, that it will be very difficult, as your petitioner believes and is informed, to make a sale thereof; and will further cause litigation, as your petitioner believes and is informed, relative to that portion of said real estate sold by him to said Jacob Coover.</p> <p>“ Your petitioner therefore prays your Honors to grant him an order directing that the said sales by the sheriff of Cumberland county, adyertised of said property, to take place on Jan. 5th 1872, may be stayed, and all further proceedings on said writ of venditioni exponas, No. 19, January Term 1872, may be stayed until your petitioner can come into court, at its next session, and ask for a rule to show cause why the said writ should not be stricken off, and why the said levy and condemnation on fi. fa. No. 17, November Term 1871, should not be set aside, and for such further relief as the case may require.”</p> <p>On the 2d of January 1872, the court ordered that all proceedings under the venditioni be stayed until the 8th of January, “ to afford defendant an opportunity to obtain the necessary rules, &c., the levy to continue in the meantime.”</p> <p>On the 8th of January, the court granted a rule to show cause as prayed for, returnable the first Monday in March 1872.</p> <p>Reeser filed an answer to the rule, admitting substantially the facts set out in the bill, and further saying, that he was informed and believed that the decree of the Circuit Court “ adjudged the original deed of voluntary assignment made to Stees and Thomas on the 17th February 1869, to be null and void, and ordered it to be delivered up and cancelled, and that the property should go into the hands of the assignees in bankruptcy, which was accordingly done on or about the 16th day of June 1869, and that at that time his judgment was a lien; that he is further informed, and believes, that the original assignment being null and void as to creditors, and cancelled upon that account by the Circuit Court, did not interfere with his proceedings in the abovp-cited case, and that the assignees in bankruptcy took the property, subject to all the existing liens, and to the right of such creditors as had vigilantly pursued their remedies in the state courts and secured judgments ; that he has not at any time taken part in the proceedings before the register in bankruptcy, nor has he proven and presented his claim to him for adjudication, but has preserved the lien of his judgment throughout, and in this proceeding now seeks by the process of law (the assignee refusing and failing to pay him), to make his money out of the land of one of the defendants, W. Y. Johnson; * * * that the lots of ground upon which your respondent claims his judgment to be a lien, were not disposed of by the original assignees under the deed of voluntary assignment, but remained unsold at the time the said assignment was declared null and void, and was cancelled. * * *</p> <p>He prayed “ that the order staying his writ of venditioni ex-ponas may be removed at the cost of the defendant, and that he may be allowed to proceed to secure and' recover his judgment in full, from the real estate owned by the said W. Y. Johnson individually, at the time he brought this suit and recovered his judgment.”</p> <p>After argument, the court (Junkin, P. J.), after an elaborate examination of the authorities and discussion of the case, concluded his opinion, saying:—</p> <p>* * * “ The conclusion we reach is that the plaintiff has no lien.</p> <p>“ But how can we restrain ? We cannot set aside the levy, and the right of the creditor to sell any interest which he believes his debtor has in land, is admitted. The only exception seems to be where such sale would be contrary to law, and up to this time the only clear exposition of this exception is found in Hunter’s Appeal, 4 Wright 194; Winch’s Appeal, 11 P. E. Smith 424, and Lyon’s Appeal, Id. 15; and these are all cases of attempts to sell a wife’s realty to pay her husband’s debts, which the Act of 1848 expressly forbids. Even then a clear and indisputable title in the wife must be established. The reason given for interference is that it is contrary to law. But to sell A.’s property to pay B.’s debts is no less so. Both are against law and equity, and in Stock-dale v. Ullery, 1 Wright 486, the power to restrain acts contrary to either equity or law, is admitted. In Winch’s Appeal, the Supreme Court determine that under disputed facts as to title, there can be no interference; trial by jury is the remedy. Then the test must be this, that under a state of admitted facts the law draws its conclusions, and where it can assure, acts promptly by forbidding the thing to be done. No jury is needed; the facts are found and the law concludes. Now we have in this case all the facts admitted, and the only question of law arising is, has the plaintiff a lien on the land ? We hold that he has not. There is no need of a jury when this plaintiff proposes to sell Coover’s land to pay Johnson’s debt; it can only be by reason of a lien thereon; without a lien he has no right. To sell without a lien is contrary to law; the purchaser will get no title; the process of the court will be used for deceitful and illusory purposes. Bidders will be misled, the real owner of the land vexed and harassed to his hurt. Under these circumstances, we believe the ends of justice will be met by arresting the execution at this point, and we will do so.”</p> <p>The court made the following order:—</p> <p>“And now, 21st October 1873, it is hereby ordered, that John B. Reeser, plaintiff in judgment No. 98, April Term 1869, Common Pleas of Cumberland county, and also in the writs of execution issued thereon, refrain from selling the real estate levied upon under said writs of execution, so far as said real estate owned by Jacob Coover is concerned, being the same real estate conveyed to said Coover by George Bitner, as assignee in bankruptcy of W. Y. Johnson, the defendant.”</p> <p>Reeser took out a writ of error, and assigned the various orders of the court for error.</p>

<p>1. On a challenge to the polls of grand jurors the defendant cannot examine the jurors on their voir dire as to the alleged cause of challenge ; but may establish it by evidence aliunde.</p> <p>2. A bill may be sent to the grand jury by the district attorney, with the sanction of the court, without previous binding over.</p> <p>3. After exhausting the regular panel, a venire for talesmen generally, authorizes the selection of jurors from the county at large as well as from bystanders.</p> <p>4. When two persons are murdered at the same time and place, under circumstances evidencing that both murders were committed by the same person, and were part of the same transaction, &c., evidence as to the circumstances of the murder of one is admissible on the trial for the murder of the other.</p> <p>5. On a trial for murder, there was evidence that the defendant had in his possession coin at a time when specie payments were suspended; that the murdered man was living in a place where there was no safe deposit for money; under these circumstances evidence was admissible that the murdered man had received a quantity of coin, although several years before.</p> <p>6. In order to establish identity, evidence that the witness gave testimony in a prosecution against prisoner for another murder, and that he recognised him as the person from whom he purchased coin the morning after the murder, was properly admitted without producing the record of the prosecution.</p> <p>7. A prisoner confined in the jail with the defendant, testified that he held a conversation with the defendant through the soil-pipes, in which defendant confessed his guilt, and that the witness knew it was the defendant from his voice. Held, that the testimony was admissible ; its weight was for the jury.</p> <p>_8. The court charged the jury, that they might acquit the prisoner or find him guilty of murder in the first or second degree, and state the degree in their verdict. Held, that it was not error to omit instructing the jury on the subject of manslaughter, no instruction having been asked as to that.</p> <p>9. It is not error in the court to omit instructing a jury on the abstract principle, that on an indictment for murder, there may be a conviction for manslaughter.</p> <p>10. McCullough v. Commonwealth, 17 P. F. Smith 30, followed.</p>

<p>1. On the trial of an indictment for the murder of “ Goss alias Wilson,” a photograph of Goss, testified to be like a mutilated body found, was evidence to be submitted to the jury, that the body was that of Goss.</p> <p>2. Photography is to be judicially recognised as a proper means of producing correct likenesses.</p> <p>3. A mutilated body, whose face was discolored and swollen, was found, having been buried apparently for some days ; the witness who found it had never "seen the person before. He might testify that the face resembled a photograph of a person alleged to be the one found; the question whether the witness could identify it, was for the jury.</p> <p>4. Goss having been a man in the habit of becoming intoxicated, proof that a man called “ Wilson” had the same habits, was evidence for the jury on the question as to Wilson and Goss being the same person.</p> <p>5: Papers signed “ Goss” and “ Wilson,” testified to be by the "same hand, were commented on during the trial; the jury retired without taking the papers with them; they afterwards came in and asked that the papers should be delivered to them, which was done: Held to be proper.</p>

100.. This was an amicable action and case stated, in which Phoebe Hoover, widow of Joseph E. Hoover, deceased, was plaintiff, and George Landis, executor, &c., of said deceased, George K. Hoover and others, legatees, David Hoover and others, residuary devisees of testator, and John 0. Stouffer, purchaser of his real estate, were defendants.

56. The proceedings in this ease were upon a libel for divorce, by Richard Miles against Mary Jane Miles. The court below decreed a divorce, and the wife appealed to the Supreme Court. There were no paper-books on either side; the Supreme Court having considered the case on the record alone. The questions decided, intelligibly appear in the opinion of the Supreme Court without further, statement.

<p>Error to the Court of Common Pleas of York county: Of May Term 1873.</p> <p>This was an action of ejectment, brought April 15th 1868, by George W. Diehl and Sarah his wife, in her right, against William Moul; the premises claimed as set out in the writ were, “ a tract of land situate in Jackson township containing 185 acres of land or thereabouts ; bounded by lands of Michael B. Emig, John Eyster and Valentine Emig.” On the 2d of June, the court admitted John Emig, Jr., Valentine Emig and Eli Emig, executors, &e., of John Emig, deceased, to join in the defence as landlords. Afterwards the plaintiffs, by leave of the court, filed an amended description of the land, describing it by courses and distances, and as “ containing 221 acres or thereabouts.”</p> <p>The case was tried in December 1869, and a verdict rendered for the defendants ; the judgment on this verdict was reversed by the Supreme Court. (15 P. E. Smith 320.)</p> <p>The premises were originally the property of John Emig, Sr. By his will, dated June 14th 1864, and proved March 14th 1868, he ordered them to be sold by his executors and the proceeds divided amongst his three sons, who are the above-named executors.</p> <p>Sarah Diehl, one of the plaintiffs, was his daughter; she alleged that her father had in his lifetime, about the year 1850, executed and delivered to her a deed for the premises claimed in the writ; that she had afterwards, at his suggestion, placed it in his care for safe keeping: after his death no such deed was to be found. The question in the case was whether there had been a deed executed and delivered to Mrs. Diehl, as was alleged by the plaintiffs.</p> <p>•' The ease was tried the second time, March 8th 1871, before Eisher, P. J.</p> <p>It having been admitted that the title to the land had been in John Emig, Sr., the plaintiffs offered in evidence the deposition of Philip Smyser, taken April 30th 1868, previously to the former trial, to show the execution and delivery of the deed, &c.</p> <p>The defendants objected to its admission; that it was not shown that the witness had been subpoenaed; that his absence was not accounted for; and that the witness was not competent from imbecility to testify when his deposition was taken, &c.</p> <p>The plaintiffs, as laying ground for admission of the deposition, ■then gave evidence, that the deponent was 85 years of age; that for the previous two years his mind had become greatly weakened, his memory had failed, and generally that he would be incompetent to testify, although physically he might have been able to come into court; he was living in the borough of York, where the court was sitting.</p> <p>The evidence was quite voluminous as to the deponent’s mental imbecility at the time of the trial, and of his capacity at the time his deposition was taken.</p> <p>The court admitted the deposition and sealed a bill of exceptions.</p> <p>The deponent testified : * * *</p> <p>“ I knew John Emig, Sr.; he was a brother-in-law of mine. I am a scrivener, and was for many years in the habit of writing deeds and other instruments of writing for other persons. John Emig, Sr., came to me and said I should write a deed conveying a farm that he had up the Hanover road, about seven miles above York, to convey that farm to his daughter Sarah Emig. I wrote the deed. He brought with him the deeds and all the papers that were necessary to give a full description of the farm. I did write the deed and made the description of the farm according to the papers he left me. When I had it written, I brought it down and gave it to him ; and I feel very sure that he took it home with him; he could read my writing, and this is a thing that occurred to me lately. Afterwards. he came to me, and I think I went to his house. My first impression was that he executed it at my office. When I went to his house, there he signed it and said it was right. He then lived up this street (Main street), on the south side, a few doors from Queen street, and Sarah, his daughter, kept house for him. Sarah was not in the room when he signed the deed. I am sure that I became a subscribing witness in it.* * * There was another Subscribing witness to this deed, but who it was I do not recollect. When it was done he kept the deed and all the papers, and I didn’t see him deliver it to Sarah.” [Here plaintiffs call upon Yalentine Emig and John Emig, Jr., two executors of the will of John Emig, Sr., deceased, and also William Moul, the defendant, who are all present, and their counsel, Messrs. Mayer and ICeesey, for the deed spoken of by this witness. Messrs. Mayer and Keesey for their clients answer that they never saw such a deed, and know nothing about it.] “ I was not an acting justice of the peace at the time, but I feel quite sure that there was an acknowledgment to the deed when it was signed' by Mr. Emig, but I don’t remember before what officer it was taken. I have been thinking a good deal over, how long or when it was that I wrote this deed, but the result of my thinking is tha't it was somewhere about 1850. I don’t recollect anything particular he, John Emig, said as to his intentions either at the time he brought-me the papers, or when he signed the deed, except that his directions were that I should write a deed to his daughter Sarah Emig. She was then not married yet, and he afterwards signed it and said it was right. This relates to 1850, and I think she was not married then. * * * The deed was written by me, as an absolute conveyance of the land, in fee simple, * * * to Sarah Emig, and embraced both tracts, as I have stated. I wrote it that way I think. I can’t say how it read. I wrote it as an absolute deed. I have no doubt of it. My impression is that John Emig, Sr., held the whole tract embraced in the deed, by two separate deeds to him. I had all the old deeds, papers, drafts and so on, and that enabled me to describe the land. * * * I mean that the deed in form was a conveyance to Sarah in fee simple.” * * *</p> <p>Under objection and exception the plaintiffs gave evidence by Andrew Landis, who said: “lam acquainted with the location of this farm spoken of in this suit; I called on him (Emig) to rent it from him, in the fall of 1852, at his residence, in Little York; I asked him whether the farm was for rent; he said he did not know; he said there was a talk about Moul going to quit; he could not tell whether the farm was for rent or not. I asked him why he could not tell, he said the farm was not his any more ; that he had given the farm to Sarah; that if I wanted to rent it I should see her. I then asked why he had not the farm to rent; he said the farm was Sarah’s; he had given her the deed for the farm. * * * This occurred in 1852.” * * *</p> <p>Elizabeth Zinn testified: “I was acquainted with John Emig; he was my uncle by blood; brother to my father. I was at his house when he lived in York; Sarah was there also. He said he had been down street; that Moul met him and asked him to rent the farm to him; he said he could not, it was Sarah’s. Then Sarah spoke up and said, Is it not better for father to rent it to them than for me to rent it ? I said, That is just according as it may be. Then the old man said, Sarah has given me all her writings, and I have put them in bank in my tin box. Mr. Emig said there had been a fire and then he had got a tin box made to put Sarah’s writings in and his too. He said now he had given each of his children a place, that was all. I cannot tell, it must be about thirteen years ago. This is not the only time I heard Emig say this was Sarah’s farm. After this conversation he repeated he had given Sarah this farm.”</p> <p>There was other evidence from several witnesses that John Emig had frequently said that Sarah had given him her writings, to keep at his suggestion after the fire; that he had procured a tin box and put them into it and put the box in the York Bank.</p> <p>One of his sons testified that at an interview with him, “he said, she gave me her notes, her writings to take care of as long as I live, and so I will too. Then I said, But, father, that is not the meaning of it; she (Sarah) meant only as long as she remained with you. Then he said, I will hold them as long as I live.”</p> <p>There was also much testimony of declarations of John Emig that he had given the farm to Sarah; of his refusal to rent it, &c., or do anything in regard to it without her consent, and of other acts tending to show that he recognised the farm as belonging to Sarah.</p> <p>At the time of the alleged execution of the deed Sarah was unmarried and was living with her father; she married in 1858 and left him; he afterwards lived with his sons.</p> <p>The plaintiff George W. Diehl testified: “ I was present at a meeting of the family, three or four, weeks after old Mr. Emig’s death — it was at John Emig, Jr.’s house. * * * After dinner we went into a side room, and John said he would go and fetch the box; he brought an old kind of a box with ‘ J. E.’ on it, an old tin box. Valentine put the box on the piano ; Sarah and I were sitting at the end of the piano. Valentine gave John the key of the box. John Emig was hunting in the box. Michael had walked up to the box as if he was going to put his hand in; John put his hands around the box and said to Michael, ‘ Sere, nobody has anything to do with this but we.’ Then Michael walked to the other end of the piano; John was hunting amongst the papers, and Valentine, who was standing before me, stepped up and pulled out an old deed out of the papers, out of a package of papers, and was looking at it. I noticed George Emig’s name on the -deed, and said it was George Emig’s deed. * * * Eli came up and got the old deed; he walked back to Michael with the old deed, and Valentine then got another deed out of the same package; he opened the deed then; I was near him ; Valentine was right against me. When he had that paper I was sitting all the time; I was sitting when he had the deed in his hand. Then I looked in and saw it was a deed; John Emig to Sarah Emig. Then after we looked at it awhile, John said, Valentine, put these papers away, they have all got mixed up ; Valentine folded it up and put it back again in the box; can’t tell whether he put it in the package or not. I saw Valentine put it back in the box. * * * I was present at the appraisement of the goods and chattels of John Emig, deceased, and I saw the tin box on that occasion in the room of John Emig, Jr. ; John brought it out; it was opened by John Emig, the defendant; the appraisers were there, and they looked over the papers. I did not see the same deed that was there before, and was in Valentine’s hands. When the papers were all examined, I said there was one paper here I did not see; that was all; he said he did not know. I said nothing more to him about it.”</p> <p>On cross-examination he said: * * * “ John opened the box; John got the key from Valentine; the first deed was an old looking deed; the deed was an old torn deed ; the deed just at the end appeared to be worn through; the deed was made from George to John Emig; it was a deed.some printed and some filled up; I spoke to Valentine about that deed; he opened it and looked in it and I looked in it; the other was not altogether a new deed — nothing was torn at it; that was also a printed form filled up; I did not see the outside of it, I saw the upper half of the deed, where the deed commences ; I saw the name of John Emig and a.t the other end of the page Sarah’s name, above what I could read I read of course; I had not all the description in the deed, all that I saw was that it was a deed from John Emig to Sarah and I saw the whole line; I could read it above; I could see it half ways down, not probably half ways down ; I did not have it in my hand, if I had had I expect I would not be here now.” * * *</p> <p>A son of John Emig testified that after his father’s death he went to John Emig, Jr., one of the executors, to pay a note which he owed to Sarah, that the executor brought a tin box from his chamber and found the note in it.</p> <p>Plaintiffs offered now to prove by the plaintiff Sarah Diehl that she gave her deed for the land claimed in this suit to her father for safe keeping about 1856 or thereabouts, and that he never returned it to her, and that when she got married and went away to live with her husband, she asked him for it and he said he had it in the bank in his box, and never after gave it to her.</p> <p>Offered to the court for the purpose of accounting further for the non-production of the deed under which plaintiffs claim title.</p> <p>The offer was allowed and was then withdrawn.</p> <p>There was other evidence by the plaintiffs in support of their case.</p> <p>In the course of the trial each of the executors, in answer to notices to produce the alleged deed, sa,id on oath, that he had never seen such deed or heard John Emig, deceased, speak of such deed.</p> <p>The defendants gave much evidence in answer to the plaintiffs’ case; and in many instances directly contradicting the statements of plaintiffs’ witnesses.</p> <p>Much of tbe evidence of the plaintiffs was received under objection and exception ; it is not necessary to notice this evidence in detail.</p> <p>The points of the plaintiffs and their answers were :—</p> <p>1. If the jury believe that John Emig, Sr., in his lifetime, executed a voluntary deed of conveyance to his daughter Sarah Emig, for the land claimed in this suit, and delivered the said deed to her, such deed was irrevocable by the grantor and vested the title to the said lands in her from the instant of delivery ; and the plaintiff is entitled to recover.</p> <p>Answer: “ The law as stated in this point is correctly stated.”</p> <p>2. If the jury believe from the evidence in this cause, that John Emig, Sr., in his lifetime, executed and delivered to his daughter Sarah Emig, a deed of conveyance for the land claimed in.this suit, and that afterwards the said deed was given to him again by his said daughter for safe keeping, and that he afterwards refused to give it up to her ; or that he destroyed it; or that he kept it in his tin box till his death, and that after his death his executors destroyed or suppressed it; yet neither his own refusal to give it back to his daughter, nor the suppression, or destruction of it by .himself or his executors, are of any avail to divest the title once vested in her by the delivery of the deed; and the plaintiff is entitled to recover.</p> <p>f‘? Answer: “ If the facts are as stated in this point; the refusal of Mr. Emig to give the deed up if he did refuse to do so, nor the suppression or destruction of it by himself, or by his executors, are of any avail to divest the title if it once vested in her by the execution and delivery of a deed ; if one was made and delivered.”</p> <p>3. If the jury believe the testimony of Philip Smyser, Esq., an actual deed of conveyance for the lands claimed in this suit, was signed and sealed by John Emig, Sr., to his daughter Sarah Emig; and, if they believe the testimony of Andrew Landis, the actual delivery of a deed therefor by the said John Emig, Sr., to the said Sarah Diehl is positively proved; and though without an actual deed of conveyance, a man’s declarations are ineffectual in law to convey his lands, y.et where such deed is positively proved to have been executed, the acts and declarations of the grantor contemporaneous and subsequent, are legal and competent evidence from which the jury may infer the delivery of such deed; and if they find from all the evidence in this cause, that such deed was executed and delivered by John Emig, Sr., to Sarah Emig, the plaintiff is entitled to recover, and their verdict must be for her.</p> <p>Answer: “ The weight of the testimony and the credibility of the witnesses are for the jury to determine. The law as stated in this point is correct and we affirm the portions of law contained in it.”</p> <p>The defendants’ points and their answers were :—</p> <p>1. A plaintiff seeking to recover in ejectment upon a legal title, must produce the deed under which the land is claimed, or account for its non-production to the satisfaction of the court, the evidence on this subject not being for the consideration of the jury, and before this is done no secondary evidence can be permitted to go to the jury; the plaintiff being presumed to have the custody of her own deed, must therefore, in the first place, satisfy the court of the reason why she does not produce it. The plaintiff in this case was fully aware of her duty in this respect, as she made an offer to the court to make such proof, and when the court was ready to receive the testimony, withdrew the offer, and declined to testily on the subject; therefore the secondary evidence is not to be considered by the jury, because the primary is not produced or accounted for, and as the case stands, the verdict must be for the defendants.</p> <p>2. There is nothing in the testimony of Michael Emig, or of George W. Diehl, or of any other witness in the cause, describing or identifying any such deed as alleged by plaintiffs, or tending to show that such alleged deed, being first duly executed and delivered to Sarah Emig, was in the hands of her father or of his executors ; that the proof must be clear and satisfactory, and is for the consideration of the court only, of the identity of the instrument and of its possession by the opposite party, when such possession is alleged, as the reason for its non-production, before the court can receive secondary evidence of the execution and delivery of the alleged deed to be submitted to the jury ; andas preliminary proof of this description is wanting in this case, for that reason the secondary evidence cannot be considered by the jury, and the verdict must be for the defendants.</p> <p>3. The contents of a lost paper must be so proved that the court can say with something approximating to certainty what it contains. That in this case the farm was purchased in separate parcels from time to time; that the witness, Philip Smyser, Esq., is the only witness offered to prove the contents of the alleged deed; that he does not profess to remember its date, its consideration, or the quantity of land contained in it, except by reference to two deeds, the land contained in which he put in one, although a large portion of one of the tracts was long ago sold off by John Emig, of which he, the witness, takes no account. That ■ he has no_ knowledge of the habendum, exceptions, reservations, conditions or other component parts of said alleged deed, but furnishes his conclusions of its legal effect, by saying that it was a deed in fee simple, and almost all he tells about it, is what he thinks and not what he recollects, besides which there are other circumstances establishing his want of memory on the subject, so that neither the plaintiffs themselves nor the court can say with any degree of certainty what the alleged instrument contains, within the limits of the land comprised “ in two deeds,” and in the absence of such proof, the court cannot submit to the jury to find the execution and delivery of a paper, the contents of which cannot be proved.</p> <p>Answer: “We cannot withdraw these questions from the jury, We think after the court had heard the preliminary proof, it was proper to submit the questions of execution and delivery to the jury, for their consideration and decision.”</p> <p>4. According to the provisions of the Acts of Assembly of-Pennsylvania for the proof of lost deeds, a recovery cannot be had in an action of ejectment upon the allegation of title under a deed alleged to be lost, unless the plaintiff resort to the especial proceedings for the proof of lost deeds, and that if a plaintiff seeks to recover upon a title under such a deed, she must first establish its existence and execution under such special proceedings, and not having done so in this case, the verdict must be for the defendants.</p> <p>Answer : “We will not answer this point in the affirmative. The law may be so, but we will not withdraw the facts from the jury for that reason.”</p> <p>5. Nothing is more common than that a father speaks of a farm, .upon which he has placed a son or daughter, as the son’s or daughter’s farm, or of a house in which he permits a son or daughter to live as the son’s or daughter’s house. It is an every-day occurrence that a father speaks of having given a lot of ground to a son or daughter, when it is plain that there was no intention to transfer the ownership, and such language is not confined to parol gifts. When a father says I sold such a piece of real estate to my son or daughter, he generally means no more than that he agreed that the son or daughter might have it for a consideration; he does not' necessarily mean that his own dominion over it has ceased, and that a sale has been executed. Were courts to look at the language of parents expressed to others as evidence of title in children, it would annihilate domestic confidence, and it would doubtless, in most cases, be giving an effect to loose declarations that was never intended. That for these reasons no importance is to be attached by the jury to the loose and casual expressions of John Emig, that “the farm was Sarah’s,” that it “belonged to Sarah, ” or even if he gave or appropriated a part of the income to her as her own; and no declaration or act of John Emig’s would transfer the title to her and enable her to recover in this suit, except a deed duly executed and delivered to her for the farm.</p> <p>Answer: “No declarations or acts of John Emig’s would transfer the title to his daughter Sarah, and enable her to recover in this suit, unless a deed was duly executed and delivered to Sarah for the farm.”</p> <p>6. The evidence to establish a deed lost or one not produced, must be clear and satisfactory. There is no evidence in this case purporting to relate to a deed, except that of Philip Smyser, Esq., and of Andrew Landis, and nothing to connect their testimony as relating to the same paper. The credibility of the testimony of both these witnesses is impeached by evidence of contradictory statements, and by other circumstances alleged to exist in the evidence. The testimony of Philip Smyser does not purport to prove the delivery of a deed, and that of Andrew Landis purporting to be a casual declaration at an interval of years, unconnected with that of Mr. Smyser, and without force in itself to divest a legal title, adds little or nothing to Mr. Smyser’s testimony. The testimony of these witnesses, taking it together, if believed, lacks that completeness and satisfactory character which the law requires in such cases. The other evidence in the cause, being of loose and casual declarations of a parent in reference to a child, is of a different species, and can add nothing to the proper evidence in such a case, and therefore upon the whole the evidence in the cause is not sufficient to authorize or sustain a verdict for the plaintiffs, and the verdict must therefore be for the defendants.</p> <p>Answer: “ The evidence to establish a deed lost or one not produced, must be clear and satisfactory. It cannot be established by loose and vague declarations, that the owner has given the property which it is alleged the declarations referred to. The evidence to establish a deed not produced, must satisfy the jury that it was executed and delivered, and its non-production must be accounted for. The effect of the evidence to make this proof is for the jury, and so is the credibility and truthfulness of the witnesses.”</p> <p>7. Upon the evidence in the cause the plaintiffs are not entitled to recover, and the verdict must therefore be for the defendants.</p> <p>Answer: “ Whether the evidence is sufficient to enable the plain.tiff to recover is for the jury to decide in accordance with the law as given to you by the court.”</p> <p>The court charged:—</p> <p>* * * [“ This cause was tried once before, and this court believing that the offer made to prove certain facts ought not to have been received and submitted to the jury, rejected it and ordered a verdict to be rendered for the defendants. The case was afterwards taken to the Supreme Court and reversed; that court being of opinion that the evidence ought to have been submitted to the jury for them to pass upon.] * * *</p> <p>“ The plaintiffs contend that about 1850 the father of Mrs. Diehl executed a deed to her for the land in dispute, and after-wards delivered it to her. Defendants contend that no such deed was executed, and if there was it was never delivered, (and as a deed executed but not delivered vests no title in the grantee); the deed if executed vests no title in Mrs. Diehl, and that therefore the plaintiffs cannot recover.</p> <p>“ The main question in this case, therefore, is, was there such a deed executed and delivered. To prove the execution of the deed, Philip Smyser, Esq.’s, deposition was taken. On account of the dilapidated state of his mind, enfeebled by old age, he cannot remember any transaction, as is testified by many witnesses, his neighbors, friends and near relations, and amongst them several medical gentlemen, who gave it as their opinion that he has not mind enough left to enable him to testify. Under these circumstances we have allowed his deposition to be read, but the jury in considering its contents will make due allowance for his old age and want of memory, and give its contents such credence as they think it deserves.” * * *</p> <p>The court then spoke of the deposition of Mr. Smyser and proceeded :—</p> <p>[“ The jury will look at all the circumstances attending Mr. Smyser’s connection with it; his extreme old age; his present inability, on account of mental imbecility, to be examined as a witness; and they will decide whether such a deed was or was not executed.]</p> <p>“ If the jury find that no such deed was executed, then they need go no further in this ease, for their verdict must be for the defendants. But should the jury find that a deed was executed by John Emig to his daughter Sarah, in such definite and precise terms as would enable the jury to say what property was conveyed, and how much it contained, or the land pointed out with such certainty that the jury can ascertain it from the evidence, then they can take another step in the case, and inquire was there a delivery of this deed. [Apart from Mr. Smyser’s deposition, not a witness has been called who testifies that he ever saw such a deed, and no witness swears that he or she was present at its delivery. The only testimony that bears the semblance of proof of actual delivery of a deed, is that of Andrew Landi$:"J</p> <p>The court, after stating some of the testimony of Landis, and that of several other witnesses as to declarations of John Emig that he had given the farm to Sarah, said:—</p> <p>* * * [“ Any amount of testimony of declarations made by a father that he had given a farm or any other real estate to a child of itself, amounts to nothing. A man cannot talk away a house or a farm. The only use that the jury can make of such declarations, is to take them into consideration as of some weight in determining the question as to whether a deed was made or executed by John Emig, and delivered to his daughter Sarah. They are only persuasive of execution and delivery; they do not prove the fact, nor will any accumulation of such testimony suffice to prove an execution and delivery of a deed. The law will not allow the transfer of real estate by proof of tbe witnesses of tbe declarations or conversations of the parties. ] A voluntary gift of real estate from a parent to a child cannot be by parol. It can only be established by the execution and delivery of a written instrument, but when the deed is lost or destroyed, the evidence to make out that it once existed must be precise and definite in its terms, so much so as to leave no doubt in the minds of the jury that a deed was executed and delivered, and any proof short of this is wholly inefficacious, and cannot be considered by the jury.</p> <p>“ It is said by the defendants that the act of ownership over the farm in dispute exercised by John Emig, such as having it taxed in his own name prior and since the date of the alleged deed to Sarah, and up to the time of his death ; having it insured at one time in his own name by the Conewago, Newberry, East and West Manchester Townships Mutual Fire Insurance Company, and at another time in the York County Mutual Insurance Company; at another time commencing proceedings before the fence viewers in relation to the fences on the farm in dispute in his own name, are facts totally inconsistent with the allegation that the farm belonged to Sarah. Taking out the policy of insurance in his own name is particularly so, as in case of loss by fire, no benefit could accrue to him, or insurance be recovered, if he was not the actual owner of the premises insured. [Again on the 3d of June 1863, he leased a portion of .the premises in his own name to Mr. Myers, of Lancaster county, for the purpose of mining ore on it. These facts are strong evidences of ownership. It is for the jury to say in what character he acted when he did these things; whether he acted as owner or agent.]</p> <p>“ There are many instances known to us all, of parents saying that certain pieces of property belonged to certain of their children, • naming them, and often putting them in possession of them. Such acts and declarations are not proof of the execution and delivery of a deed, but rather of an unexecuted intention, hereafter to make them a deed, or devise the estate to-them by will. In either case, until the intention is carried into effect by the making and delivery of a deed, or execution of a will, and subsequent death of the testator, no title vests in the child.</p> <p>[“ In the present case, no proof has been made by Mrs. Diehl herself of the manner in which she lost or disposed of the deed. Evidence of the execution and delivery of a deed without producing or acebunting for its non-production, cannot avail a party to recover in ejectment. Before the jury can find a verdict for the plaintiff, she must give some satisfactory reason to the jury why the deed was not produced. Although Sarah Emig was not a competent witness to prove the execution and delivery of the deed, she was a competent witness at least to the court to prove its loss, and the court would have instructed the jury in the absence of her testimony to prove its loss, that the plaintiff could not recover. If it had not been that the Supreme Court decided that it was the duty of the court to receive the evidence in relation to the tin box and ,the papers it contained, and of the conduct of the executors in relation to them and submit it to the jury, this court would have decided this as .a matter of law; but as it is a matter of fact, then it becomes an important question, to be decided by the jury. Did the alleged deed to Sarah get into the hands of John Emig, Sr., and was destroyed by him, or taken from the tin box by all or any one of the executors? The first question the jury will decide is, was this deed ever put in the tin box by John Emig; if they should find that such deed was ever delivered to Sarah Emig.”] * * *</p> <p>The court referred to the testimony in relation to the deed being put into the tin box, and said :— 0</p> <p>“ Mr. Diehl describes the deed he saw with Sarah’s name in as one partly printed and partly written. [The jury will decide whether the deed Mr. Diehl supposes was the one his father-in-law made to his wife, and the one found in the box was the same one, but this must be decided by the evidence. Philip Smyser says in his testimony that he wrote the deed he prepared, but that he did not write an acknowledgment. Mr. Diehl swears that the deed which he saw was partly written and partly printed. If this be so, then it cannot be the deed that Smyser wrote, if that deed was all written.]</p> <p>“ The question then recurs, if the deed supposed to have been written by Philip Smyser was even delivered to Sarah, John Emig, Sr., must have destroyed it in his lifetime, and thereby committed an enormous crime, or that the executors destroyed it after his death, and thereby committed a like criminal offence. The destruction of a deed is a crime and the jury cannot presume it. All men are presumed in law to be innocent of crime, and before it can be fixed upon John Emig, Sr., it must be proved by clear and satisfactory evidence, that he destroyed it. Was it destroyed by one or all of the executors ? Is this proved ? It is dangerous to fix upon men great crimes. unless the evidence is so clear as to establish the fact to your entire satisfaction.</p> <p>“ But on the other hand, if John Emig, Sr., having intended to give bis daughter the farm, had a deed made, and kept it in his own possession and did not deliver it to her, but changed his mind as to the manner he would dispose of the farm, and instead of giving his daughter the deed, destroyed it, he had a perfect right so to do, and his title to the property in dispute passed to the executors under the will, and not to Sabah under an undelivered deed. That John Emig made a will is not disputed, nor that he devised •the property in dispute to his executors. [Before the plaintiffs can recover, the jury must be well satisfied from the evidence, first, that a deed was prepared by Philip Smyser and executed by John Emig, conveying the farm in question to Sarah ; secondly, that it was delivered to Sarah, and thirdly, that Sarah gives a satisfactory account of the manner in which she became dispossessed of it, or in which it was destroyed. If she has done these, and the property described in the plaintiff’s writ is the same property mentioned in the alleged deed to her as prepared by Smyser, then the plaintiffs are entitled to your verdict, otherwise your verdict must be for the defendants. However much we may sympathize with Sarah on account of the small portion she has received out of her father’s estate, courts and juries cannot establish deeds or wills unless the proof of them come up to the full measure required by the law. Has this been done ? If it has not, there can be no recovery by the plaintiff, and your verdict must be for the defendants.”] * * *</p> <p>The jury rendered this verdict: “ We render the verdict in favor of the plaintiff for the farm as it stands in the writ.”</p> <p>The defendants took a writ of error; they assigned for error :—</p> <p>I- 3. The answers to the plaintiffs’ points.</p> <p>4-10. The answers to the defendants’ points.</p> <p>II- 18. The parts of the charge in brackets.</p> <p>19-21. The rulings of the court on the offers of evidence.</p> <p>22. That the court erred in entering judgment on the verdict on account of its uncertainty.</p>

<p>1. The word “ground,” in the Act of April 9th 1867, sect. 1 (Sites for School-houses), is synonymous with “ land,” and is not confined to such only as is bare of buildings. School directors may enter upon and occupy improved town lots.</p> <p>2. When a school district owns a lot, the directors may take beside, as much adjoining ground as is necessary for a site for a school-house, if both together do not exceed one acre.</p> <p>3. Brocket v. Ohio and Pennsylvania Railroad Co., 2 Harris 241, recognised.</p>

<p>1. By an Act of Assembly Trout was appointed trustee to sell the property of an iron company, he to give bond, to be filed in prothonotary’s office of Mercer county, for the proper application of the money, &c. After having sold, paid the debts, distributed the balance, &c., to file an account of his proceedings, on confirmation of which he might be discharged. He filed his bond, sold the land and settled his account, which was confirmed ; an auditor appointed by the Common Pleas of Mercer county reported distribution, and the report was confirmed. In an action on the bond in Allegheny county, alleging fraud in the trustee in making the sale, Held, that the decrees of confirmation were conclusive, and the question of the fraud could not be inquired into collaterally.</p> <p>2. A decree procured by fraud may be impeached collaterally, but not for any fraud committed by the parties against themselves.</p> <p>3. The parties having had notice of the sale and subsequent proceedings and not objecting, acquiesced in them as matter of law, although they did not assent.</p> <p>4. By the Act of Assembly the court of Mercer county had exclusive jurisdiction of the trust; for fraud or neglect of duty an action against the trustee must be in that court.</p> <p>5. A certified copy of the bond filed by Trout could not be given in evidence without an exemplification of the whole record relating to the sale, &e.</p> <p>6. The plaintiffs offered evidence to prove the value of the property sold, originally and at the time of the sale, “ as tending to show fraud, to be followed by evidence of actual fraud in conducting and making the sale.” Held not to be admissible, the facts offered not being of themselves evidence of fraud, and there being specified no fact by which the offer was to be followed.</p> <p>7. Hazelett «. Ford, 10 Watts 102; Jackson v. Summerville, 1 Harris 369, recognised.</p>

<p>Writs of error to tbe Court of Common Pleas of Armstrong county ; Of October and November Term 1873, No. 157, 158.</p> <p>In tbe court below, D. Pbelps, administrator, &c., of H. J. Arnold, deceased, to tbe use of R. P. Arnold, issued two writs of scire facias sur judgments against Isaac Fitzgerald, No. 15 and 17, to June Term 1866 of tbe court below.</p> <p>Tbe original judgments, were H. J. Arnold against Isaac Fitzgerald, and were both entered February 4th 1859; one for $92.25, tbe other for $799.07, with interest. The amount due on these judgments on tbe 1st of May 1860 was $1002.79.</p> <p>Tbe defendant’s defence was that tbe judgments bad been satisfied by an agreement, dated April 11th 1860, for tbe sale of a tract of land by himself to H. J. Arnold, by which Arnold bound himself to enter satisfaction on tbe judgments as part of tbe consideration-. The judgments were assigned to R. P. Arnold, December 24 th 1861.</p> <p>The causes were tried together, September 12th 1871, before Logan, P. J.</p> <p>The plaintiff gave in evidence the judgments, and rested.</p> <p>The defendant then gave in evidence the article of agreement; by it Fitzgerald agreed to sell to H. J. Arnold a tract of 125 acres of land for $1900; to be paid, $1002.79 on the 1st day of the next May, “ by entering satisfaction on two judgments, which the said H. J. Arnold holds against Fitzgerald, on the docket of the Court of Common Pleas of Armstrong county, — the remainder of the purchase-money to be paid in two equal payments, on the 10th of May 1861 and the 10th of May 1862; the deed to be made when all the purchase-money was paid, and possession to be given to Arnold May 1st 1860.</p> <p>There was evidence that Arnold paid $101 of the purchase-money, and took possession of the property in the spring of 1860. Satisfaction of the judgments was never entered.</p> <p>Defendant gave in evidence also, the record of an ejectment, brought July 25th 1861, by Fitzgerald (the defendant) against H. J. Arnold, for the tract of 125 acres sold to Arnold by the articles of agreement of April 11th 1860; verdict being rendered December 10th 1862 for Fitzgerald for the land, to be released on the payment of $2015.76 within thirty days, with interest.</p> <p>Arnold did not pay the amount of the verdict, and surrendered possession.</p> <p>There was other evidence by the defendant, received under objection and exception.</p> <p>There was rebutting evidence also by the plaintiff, which, in the view of the case taken by the Supreme Court, it is not necessary to state.</p> <p>The plaintiff’s first point and its answer were:—</p> <p>The agreement between H. J. Arnold and the defendant, dated April 11th 1860, stipulating that the judgments sought to be recovered shall bo wiped out by entering satisfaction on them on the 1st day of May 1860, is a mere executory agreement; and there being no evidence that the same was actually executed, and no evidence that any receipt upon said contract, for the amount thereof, was ever given by the defendant — no payment is shown by defendant, and no equity arises in favor of the defendant from said agreement.”</p> <p>“ In answer to this point we instruct, that if you believe Arnold went into possession in pursuance of the contract at the time, and Arnold neglected to satisfy the judgments, then this was an equitable payment unless some other agreement existed.”</p> <p>His fourth and ¿fifth points which were refused were:—</p> <p>4. The judgment in ejectment obtained by Fitzgerald against Arnold, was, if the conditional verdict was not complied with by Arnold, an extinguishment of the article of agreement; and the defendant in this case cannot now claim any benefit or advantage which might have accrued under that agreement.</p> <p>5. Under the evidence in this case, the plaintiff is entitled to recover the amount of the respective judgments with interest.</p> <p>The defendant’s first point which was affirmed was:—</p> <p>By the contract of April 11th 1860, the judgments in suit and sought to be revived were agreed to be satisfied as the first payment of the land purchased by H. J. Arnold from the defendant; and if the jury believe that defendant gave possession to Arnold, and was willing and ready to comply with said contract, and that its non-execution was the fault of H. J. Arnold, in that event equity considers that done which was agreed to be done, and the said judgments are legally and equitably satisfied and cannot be revived in this proceeding.</p> <p>The court charged: — * * *</p> <p>“ The satisfaction of the judgments referred to in the paper, and the entry into possession of this land, were concurrent and mutual acts, and before Arnold could avail himself of the possession of the land it was his duty to satisfy the judgments; and Fitzgerald could not have demanded satisfaction of the judgments without having given or tendered possession of the land. This was the position held by the parties on that 1st of May 1860. [Did Arnold go into possession of the land at that time, in pursuance of the contract ? If he did, and there was no other agreement to allow these judgments to stand open (of which there seems to be no evidence), and these are the judgments referred to in the paper, then they were equitably satisfied if the default of making the satisfaction .entry was that of Arnold.] These are questions of fact for you. He had the advantage to derive of going into possession and the price to pay of satisfying these judgments. If on the faith of that satisfaction, to be by him entered, Arnold went into possession of the land, and thus availed himself of the benefits of the agreement, equity will hold him to the performance of the consideration if the failure was his own act. [Was his satisfaction of these judgments the consideration of his entry on the land; although not for the deed therefor, nor the whole consideration for the land then by taking such possession in pursuance of such consideration he will be held to that part thereof which was in his power to do for his advantage, and if the not doing of the act was his default, and the defendant let Arnold into possession of the land upon the faith of his entering satisfaction on the judgments as a contemporary act; then as against that defendant, the judgments will be treated as satisfied].” * * *</p> <p>The verdict was for the defendant.</p> <p>The plaintiff removed the record in both cases to the Supreme Court, and assigned for error, amongst others, the answers to the points and the parts of the charge in brackets.</p>

<p>Error to the District Court of Allegheny county: No. 68, to October and November Term 1878.</p> <p>This was an action on the case, brought April 26th 1866, by Elijah Patterson against The Pittsburg & Connellsville Railroad Company, for injuries to the plaintiff in consequence of the negligence of the defendants and their servants, as set forth in the offer of evidence by the plaintiff hereafter given.</p> <p>After the jury was sworn, the plaintiff, at the request of the court and defendants’ counsel, that he would submit in writing the evidence on which he relied, made the following offer:—</p> <p>“Plaintiff proposes to prove by the witness, Elijah Patterson, and other witnesses, that the plaintiff, Elijah Patterson, in June or July 1869, was employed on the Pittsburg and Connellsville Railroad as a conductor of freight trains; that he brought coal-trains down the road with other freight. That defendants had in their use and occupation a switch, siding or branch road, near the Pittsburg depot of said road, on which coal-cars were to be run out, in order that the coal might be emptied on a platform, and that it was the duty of the conductor to run out coal-cars, which he had brought with his train, on said switch, siding or branch, that the same might be emptied on said platform. That, by reason of the shortness of curve on said side road or branch, and the improper construction of the frog, or connection with the main track, it was hazardous and dangerous to run said coal-cars out on said switch or siding, and that the plaintiff had notified the superintendent of the railroad, also the foreman of the road, of the said hazard and danger, and the superintendent and foreman promised to repair the same, so as to avoid the hazard and.danger, requesting the plaintiff to continue his work, observing proper care, until the defects could be remedied. That neither superintendent nor any one else took any steps to repair said defects, and while plaintiff was running a part of his train of coal-cars over said switch, with the brakemen on the train, in June or July 1864, using due care, the front car of the train, in consequence of the shortness of the curve, was forced from the track and fell to the ground.</p> <p>“ That the plaintiff, who was on the second car from the fore end of the train, which was also forced from the track, -was, in consequence of the shock to the car in which he was, thrown down from the track, a distance of about twenty feet, and very seriously injured.</p> <p>“ That immediately after the accident and injury to the plaintiff, the defendants repaired the defects by lengthening the curve and changing the frog or connection, making the same safe and free from hazard.”</p> <p>The defendant’s counsel objected to the foregoing offer as irrelevant and incompetent.</p> <p>The offer discloses:—</p> <p>“1. That the injuries complained of were received by the plaintiff while employed as a conductor on defendants’ road,- and were incident to his employment as such.</p> <p>i! 2. That the plaintiff, being fully aware of the condition of the switch, voluntarily continued to expose himself to the threatened danger, and was thereby guilty of such contributory negligence as will disable him from a recovery.”</p> <p>By the Court : “ The questions presented by the offer of the plaintiff are very difficult to determine, there being a number of decisions somewhat conflicting. But, as the case will undoubtedly be taken to the Supreme Court, let us decide as we may, we think we can save time and expense to the parties by sustaining the objections and rejecting the evidence. If the Supreme Court should decide that we have committed an error, one trial will end the case, and if our decision is found to be correct, the case will also be ended.”</p> <p>The objections were sustained, the evidence rejected, and this bill of exceptions sealed.</p> <p>The verdict was for defendants.</p> <p>The plaintiff took a writ of error and assigned for error the rejection of his offer of evidence.</p>

<p>Error to the District Court of Allegheny county: Of October and November Term 1874, No. 52.</p> <p>This was an action on the case, commenced December 9th 1873, by Samuel Duncan against J. G. Barr et al., trading as J. G. Barr & Son.</p> <p>The affidavit of claim was:—</p> <p>“ S. A. Duncan, being duly sworn, says that J. G. Barr & Son, proprietors of the Central Hotel, Pittsburg, are indebted to him in the sum of $141, with interest thereon from November 6th 1873, which said indebtedness arises as follows, viz.: On the night of November 5-6, affiant was a guest at said hotel of plaintiffs, and as such occupied a room therein; that upon retiring affiant locked the door of his said room, the bolt provided for said door being useless by reason of the absence of the hasp or socket by which the bolt is made to fasten the door; that on the morning of November 6th deponent, upon awaking, found that the door of his room had been unlocked, and some bank-notes and a watch, chain and locket stolen therefrom; that said watch was the ordinary time-keeper carried by affiant upon his person, and said chain and locket were attached thereto. That said J. G. Barr & Son have paid to affiant the money thus stolen or taken from him, but refuse to pa,y to him the value of said watch, chain and locket; that said watch, chain and locket were worth the said sum of $141.”</p> <p>The affidavit of defence was:—</p> <p>“ J. Gh Barr, one of the above-named defendants, being duly-sworn according to law, says that the defendants above named have a full, just and legal defence against the whole of the plaintiff’s claim, the nature of which is as follows, viz.: The defendants’ are innkeepers of the city of Pittsburg, county aforesaid; that the plaintiff was, as they believe, a guest at - their hotel or house, at the time stated by him in his affidavit of claim; that they had at the time, and for a long period before that time and since,' a good, sufficient and secure safe in the office of their said house or hotel, for the safe-keeping of any money, goods, jewelry and valuables belonging to their guests; that they had at that time a notice placed in the lodging-rooms, parlor and public hall of their said hotel, in conspicuous places, stating the fact that they had such a safe provided for the purpose of depositing goods, money, jewelry and valuables belonging to their guests, and that they, the said proprietors, would not be responsible for said money, goods, jewelry and valuables, unless deposited in said safe; and that said notice was posted in the room occupied by said plaintiff on the night- he alleges the loss of his said watch, chain and locket, and that there was also a notice posted in said room, according to the Act of Assembly, in such case made and provided, requiring guests to lock and bolt their doors, and when leaving the room to leave the key at the office; that the said room had good, substantial and serviceable fastenings for both doors and windows, which, if properly used by said plaintiff, would have fully protected him from the said loss ; and therefore the said defendants say they have a full and good defence to the whole of said plaintiff’s claim.”</p> <p>Rule 65 of the District Court of Allegheny provides, in actions on hills, notes, bonds or other instruments of writing for the payment of money, book-accounts and contracts for the loan or advance of money; of scire facias on mortgages and liens of mechanics and material-men; of debt or scire facias on recognisances, judgments or other records, “ that if the plaintiff shall file an affidavit, stating the amount he verily believes to be due from the defendant, with a statement or specification of the same (his claim), if the same be not in writing, then the plaintiff shall have judgment, unless the defendant shall file an affidavit of defence setting forth specifically and at length the nature and character of his defence.” ' *</p> <p>The court (White, J.) entered judgment for want of a sufficient affidavit of defence.</p> <p>The defendants took a writ of error, a.nd assigned for error the entering of the judgment.</p>

<p>1. The recorder of deeds is not required to keep a general index of all the deed and mortgage books in his office.</p> <p>2. The duty of searches is that of the officer and not of parties, and he must see to it that he makes no mistake.</p> <p>3. By the Act of March 29th 1827, no more is required of the recorder than to keep an index for each book.</p> <p>4. If a recorder keeps a general index and omits to index a deed in it, and thereby overlooks a deed regularly recorded and indexed in the proper book, his certificate renders him liable.</p> <p>5. A person who has his deed acknowledged, recorded in the proper book and certified by the recorder, has done all the law requires.</p> <p>6. Whether a person’s title can be taken from him by the omission to enter the record of his deed in the particular index, not decided.</p> <p>7. Lueh’s Appeal, 8 Wright 519; Speer v. Evans, Id. 141, remarked on.</p>

<p>Error to the Court of Common Pleas of Allegheny county: No. 146, to October and November Term 1873.</p> <p>This was an action of assumpsit, brought July 30th 1872, by John F. Bennett against The Dollar Savings Bank.</p> <p>The declaration, in the first count, set out that the plaintiff was indebted to the defendant in $16,000, with interest at 8 per cent, per annum, for which the defendant held a judgment-bond, dated January 29th 1864, and secured by mortgage of the same date on lands and coal property owned by the plaintiff in Allegheny county, worth $230,000; that it was agreed between the plaintiff and defendant that the defendant should issue execution on the judgment entered on the bond, and procure the lands, &c., to be sold by the sheriff, and that the defendant should purchase the lands at the sale for their actual and reasonable value, and in consideration thereof the defendant agreed that the plaintiff should have the privilege of redeeming the lands upon paying, within a reasonable time, the debt and interest, and the expenses, &c., incurred by the defendant; that if the plaintiff should not redeem the lands, &c., within a reasonable time, then a sufiicient part to pay the debt, interest, costs, &c., should be sold by the defendant, with the consent of the plaintiff, or by the plaintiff, with the consent of the defendant; and in case of such sales, the defendant to pay over to the plaintiff, or the plaintiff to retain — as the case might be — any surplus, after payment of the debt, interest, costs, expenses, &c., and the defendant to reconvey to the plaintiff any part of the land remaining unsold; that, in pursuance of the agreement, the defendant procured the land to be sold by the sheriff, and, the plaintiff not interfering, the defendant purchased all the lands, &c., at the sale, at the nominal sum of $5300, their actual value being $238,000; that after the sale the plaintiff, in pursuance of the agreement, retained the possession, paid the. taxes and made valuable improvements; that afterwards the defendant, without the consent of the plaintiff, conveyed all the coal underlying the lands and other coal mentioned in the mortgage, for $47,050, a sum far below its market value, which was $110,000. The declaration charged that, by reason of these facts and of the agreement, the defendant was liable to pay to plaintiff $85,000, being the difference between the debt, interest, costs, expenses, &c., and the sum of $110,000, which was the market value of the land as aforesaid.</p> <p>The second count averred that the defendant, in violation of the agreement, and without the consent of the plaintiff, conveyed the whole of the remainder of the lands, &e., purchased by the defendant to trustees for the defendant and others, not the plaintiff, for the nominal consideration of one dollar, the lands being of the value of $128,000; and that, by reason thereof, the defendant became liable to pay the plaintiff “the actual and reasonable value of said lands, to wit, the sum of $128,000.”</p> <p>There was also a count for $213,000, money had and received by the defendant for use of the plaintiff.</p> <p>The cause was tried May 9th 1873, before Stowe, J.</p> <p>The plaintiff testified that the interest on his debt being unpaid in January 1866, and the hank having instructed their solicitor, Mr. Burgwin, to collect it, the plaintiff went to Mr. Burgwin’s office to have the collection put off; Mr. Burgwin advised him to let the bank sell the property under their mortgage, the bank to obtain the title, and the plaintiff could, through the bank, make a good title to any part of the property he should sell; the hank would hold the property as security for their debt; and if in the meantime plaintiff could sell any and pay them off, they would restore the remainder, and failing in that, they should, with his consent, sell the property, pay themselves, and pay plaintiff the remainder, after taking out their debt, costs, &c. He afterwards went to the bank and saw Mr. Coulton, who was treasurer and a trustee; he was “ the head man, the only man, excepting the president, the only official of any rank.” Plaintiff told Mr. Coulton his conversation with Mr. Burgwin, and asked him whether the bank would agree to, the conditions contemplated by Mr. Burgwin and himself. Coulton said the bank would. Coulton then stated to plaintiff many instances in which similar arrangements had been made with debtors of the bank. Persuaded by these conversations and promises, plaintiff allowed Mr. Burgwin to sell his property at sheriff’s sale. It was sold for $5300. Plaintiff testified further as to acts of the bank after the sale, tending to show that the hank still recognised his ownership of the land on the terms of the agreement. He gave other evidence also, for the purpose of sustaining the allegations in his declaration.</p> <p>The defendant gave evidence in answer to plaintiff’s case.</p> <p>The plaintiff submitted these points:—</p> <p>1st. If you find from all the evidence in this case that the sheriff’s sale, whereby the title to the property described in the mortgage of plaintiff to defendant, dated January 29th, A. D. 1864, was vested in defendant, was understood and intended by the parties as being merely a process for the purpose of increasing the security of the bank, or to enable the plaintiff, through the bank, to make title to any portion of the mortgaged' property he might sell, or to enable the bank to sell a sufficient amount of the mortgaged premises to pay off the mortgage-debt, interest and costs ; the sheriff’s deeds, although absolute on their face, are, in law, merely a mortgage, and it is your duty to find for the plaintiff in this case.</p> <p>2d. If you find from the evidence that it was the understanding of the parties at the time of the sheriff’s sales, that the pre-existing mortgage-debt should survive the sheriff’s sales and deeds, then the sheriff’s deeds are but a mortgage, and your verdict should be for the plaintiff.</p> <p>The court, after reading the points, charged:—</p> <p>“ These two points are affirmed pro forma, and if you believe the evidence of the plaintiff in this case, and that the facts suggested in the points are sufficiently shown by all the testimony in the cause, you should find for the plaintiff the difference between the sum the bank was entitled to have for the debt, interest and costs, as well as such other incidental expenses as they were to be paid for, and the fair value of the coal at the time it was sold by the bank, subject to the opinion of the court upon the question of law arising under said finding of facts by the jury.</p> <p>“ In speaking, of the parties in suit, we of course mean the plaintiff, John F. Bennett, and The Dollar Savings Bank in its corporate capacity. In respect to the latter,- it is only bound by the acts of parties having a power to' act for it at the time, or whose acts were subsequently accepted and acted upon by the bank.</p> <p>“ In this case an arrangement of the solicitor, such as alleged here, could not bind the bank, nor could that of the treasurer, without more. But if they did make the agreement alleged by plaintiff, and under it the property was sold in the manner it was, at sheriff’s sale, and title vested in defendant and the bank, through the executive committee of the bank or such other officer as was allowed to control or manage its affairs at any time before the sheriff’s sale, or afterwards, and before the sale of coal, with a knowledge of the arrangement, recognised it as an obligation the bank would carry out, the bank is bound by it.</p> <p>“ But the jury must be careful not to confound an understanding of plaintiff alone, arising out of his actual or supposed knowledge of what the bank had done for others under like circumstances, with an actual agreement of the bank in this particular case, to do what it is alleged by plaintiff it actually agreed to do when it obtained the title to plaintiff’s land at sheriff’s sale.</p> <p>“ If both parties did not say or do that which fairly indicated the mutual understanding previous to sheriff’s sale, the case is not sufficiently made out by plaintiff. He must satisfy you before he can recover that it was actually agreed by the parties acting for the bank, that the property, when sold, would be held as plaintiff alleges, or that they (the parties acting for the bank), by what they did and said, fairly gave to plaintiff to understand that the bank did actually agree to do so.”</p> <p>The verdict, May 9th 1873, was for the plaintiff for $20,227.97, with interest from April 1st 1870.</p> <p>The court, July 12th 1873, ordered judgment to be entered on the verdict for the plaintiff, on the reserved point, for $24,000.46.</p> <p>The defendant took a writ of error, and, amongst other specifications, assigned for error the affirmance of plaintiff’s points and entering judgment on the verdict for the plaintiff on the reserved point.</p>

6, to October and November Term 1874. This was an action of assumpsit, brought June 5th 1871, by Robert Woods and Stephen Woods, partners, as R. & S. Woods, against Nelson Jones.

<p>1. In order to prove a custom that the captain of a steamboat has authority to bind the owners by giving a premium-note for insurance, the evidence must be clear, uncontradictory and distinct, so as to leave no doubt as to its nature and character.</p> <p>2. Custom is usage so long established and so well known as to have acquired the force of law.</p> <p>3. A steamboat captain, under the direction of a part owner, executed a premium-note for insurance on the boat. The evidence in this case Held not to be sufficient to establish a custom under which the other owners would be bound by the note.</p>

<p>Error to tbe Court of Oyer and Terminer of Allegheny county: Of October and November Term 1874, No. 210.</p> <p>Ernest Ortwein alias Mentzger was indicted for murder at tbe June Term 1874, of tbe Court of Oyer and Terminer of Allegheny county.</p> <p>On the 16th of June 1874, bis trial commenced before Sterrett, P. J., and Stowe, J., of tbe Court of Common Pleas of Allegheny county.</p> <p>In impannelling tbe jurors tbe prisoner challenged a number of tbe jurors for cause; they were severally examined on their voir dire, as to whether they bad formed or expressed an opinion as to tbe guilt or innocence of tbe prisoner. The examination of the jurors having been taken by question and answer, it is desirable to give it as taken.</p> <p>Alexander McClure said in answer to tbe above question:—</p> <p>A. Well, I don’t know, for certain, that I ever expressed an opinion.</p> <p>Q. Have you ever formed one ?</p> <p>A. Well, from reports I bad, almost, I suppose, come to a conclusion.</p> <p>Q. Is that Opinion based upon tbe reading of tbe testimony taken before tbe coroner’s jury ?</p> <p>■ A. I read but very little.</p> <p>Q. Did you read any of it ?</p> <p>A. I read a very little. I bought a paper and brought it home with me for that purpose; on the way home in the wagon, I looked at it a little, but afterwards it got misplaced and I never could find it again. I beard a little of it read from tbe paper I got, but I didn’t bear very much of it read.</p> <p>Q. By tbe court. — Was tbe opinion you entertained formed from reading tbe testimony taken before tbe jury, or from outside testimony ?</p> <p>A. It was from that and rumor.</p> <p>Q. Both together ?</p> <p>A. Yes, sir. I don’t know that I would have come to any definite conclusion from either one separate from the other.</p> <p>Q. Could]you, with the opinion that you have formed, take your seat as a juror, and try the case under the law and the testimony, without being prejudiced or influenced by that opinion ?</p> <p>A. Yes, sir, I believe I could.</p> <p>Q. By the prisoner. — Does the opinion that you formed from reading or hearing read a part of the testimony taken before the coroner, as reported in the newspapers, at present exist in your mind? .</p> <p>A. That is the conclusion I drawed from what I read. I only read a portion.</p> <p>Q. Is that opinion existing in your mind now ?</p> <p>A. Well, I believe it does.</p> <p>Q. Would it not then require some evidence in order to eradicate that opinion; to remove it ?</p> <p>A. It would take further evidence than I read.</p> <p>Q. Would it require some evidence now to remove that opinion ?</p> <p>A. I suppose it would.</p> <p>Q. Would you act upon that opinion as a juror, or, acting as a juror under the law and the evidence, would it have any effect in bringing you to a conclusion as to the guilt or innocence of the prisoner ?</p> <p>A. Well, I don’t know that it would.</p> <p>Q. Do you know that it would not ?</p> <p>A. I believe it would not.</p> <p>He was challenged for cause; the challenge was overruled, and a bill of exceptions sealed.</p> <p>The prisoner challenged peremptorily.</p> <p>William Douglas, in answer to the above question, said:—</p> <p>Yes, sir, as far as newspaper reports are concerned.</p> <p>Q. Have you read the report of the testimony' taken before the coroner’s jury as published in the newspapers ?</p> <p>A. I did, sir.</p> <p>The prisoner challenged for cause.</p> <p>Q. By the court. — Is the opinion you formed or entertained, one that would interfere with your rendering a verdict according to the law and testimony, uninfluenced by that opinion ?</p> <p>A. No, sir.</p> <p>Q. By prisoner. — You say you read the testimony taken at the coroner’s inquest, as published in the newspapers.</p> <p>A. Yes, sir.</p> <p>Q. The opinion you formed was a consequence of reading that testimony.</p> <p>A. I was pretty much of one opinion.</p> <p>Q. You mean you were of the same opinion before reading it as afterwards ?</p> <p>A. Yes, sir.</p> <p>Q. You still hold that same opinion ?</p> <p>A. Yes, sir.</p> <p>Q. Would it require some evidence to remove that opinion?</p> <p>A. Yes, sir, it certainly would.</p> <p>Q. By the court. — You state that it would require evidence to remove your opinion ?</p> <p>A. Yes, sir.</p> <p>Q. Would that opinion influence you in any degree m rendering a verdict in the case, if you took your seat as a juror, according to the law and the evidence ?</p> <p>A. No, sir; it would not.</p> <p>Q. Were you at the coroner’s inquest?</p> <p>A. No, sir.</p> <p>Q. The reports you read were the newspaper reports of the proceedings before the coroner’s jury ?</p> <p>A. Yes, sir.</p> <p>The challenge was overruled, and a bill of exceptions sealed.</p> <p>The prisoner challenged peremptorily.</p> <p>H. Eaton in answer to the question said:</p> <p>A. In a measure I have. I read a great deal in the newspapers at the time, but I did not read the coroner’s inquest.</p> <p>Q. Does that opinion you say you formed partly remain with you now ?</p> <p>A. Yes, sir.</p> <p>Q. Would it require evidence to remove that opinion ?</p> <p>A. I must have something to remove that opinion.</p> <p>Q. By the court. — Do you mean that, if you were to take your seat as a juror, the opinion you have would influence you in rendering a verdict ?</p> <p>A. I would render my verdict according to the law.</p> <p>Q. Would that opinion you have influence you in rendering your verdict ?</p> <p>A. I think not, sir.</p> <p>Q. Then you could take your seat as a juror and act impartially, notwithstanding the opinion you have ?</p> <p>A. I could.</p> <p>Q. When you say that it would take evidence to remove the opinion that you have, do you mean that that opinion would influence you as a juror, until you had evidence to remove it?</p> <p>A. I think not, sir — not at all.</p> <p>Q. Still you have an opinion personally as a man, until you change it ?</p> <p>A. Exactly.</p> <p>Q. But as a juror you think you could try the case uninfluenced by it ? ‘</p> <p>A. I am sure I could.</p> <p>Q. By prisoner. — Did you say that it would require evidence to remove the opinion that at present exists in your mind ?</p> <p>A. I said I must have something to remove this out of my mind. Of course, whatever is in your mind, we must always have something to eradicate it out. I have not made up my mind against this man.</p> <p>The prisoner challenged for cause.</p> <p>The challenge was overruled, and a bill of exceptions sealed.</p> <p>William Smith in answer to the question said:</p> <p>A. Yes, sir.</p> <p>Q. Is that opinion formed from reading the testimony taken before the coroner’s jury, as published in the newspapers ?</p> <p>A. Yes, sir; reading the testimony before the coroner’s jury, and in the newspapers generally.</p> <p>Q. Are you still of the opinion then formed ?</p> <p>A. Yes, sir.</p> <p>Q. Would it require evidence to remove that opinion from your mind?</p> <p>A. Yes, sir, it would.</p> <p>Q. By the court. — If you were called upon to act as a juror, do you think you would be able to dismiss the opinion you have formed, from your mind, and try the case without reference to it ?</p> <p>A. Well, I believe I could.</p> <p>Q. Do you think you would if you were called as a juror ?</p> <p>A. Yes, sir.</p> <p>Q. Unaffected by any opinion now as to the guilt or innocence of the prisoner ?</p> <p>A. Yes, sir.</p> <p>The prisoner challenged for cause.</p> <p>The challenge was overruled, and a bill of exceptions sealed.</p> <p>Oliver S. Mcllwaine in answer to the question said:</p> <p>A. Yes, sir.</p> <p>Q. How was that opinion formed ?</p> <p>A. From reading the reported account in the newspapers.</p> <p>Q. You formed your opinion from what report ?</p> <p>A. From the report of the reporter.</p> <p>Q. Have you that opinion still?</p> <p>A. Yes, sir, I have.</p> <p>Q. Would it require.evidence to remove that opinion from your mind ?</p> <p>A. Yes, sir, I think it would.</p> <p>Q. By the court. — Is the opinion you entertain such as you could dismiss from your mind altogether, if you were called upon to act as a juror in this case ?</p> <p>A. Yes, sir, I could.</p> <p>Q. Do you think, then, if you were required to act as a juror, you would he able to hear and decide the case fairly according to the evidence produced in court, without being prejudiced or affected by that opinion ?</p> <p>A. Yes, sir; I think I could.</p> <p>Q. By prisoner. — You have stated already that you have an opinion, and that you would require some evidence to remove it. Would it require evidence in the jury-box to remove the opinion that you now have, before you could undertake to sit as an impartial juror ?</p> <p>A. Yes, sir; from the reports I formed my opinion, and it would require something else to remove that.</p> <p>Q. By the court. — The question is, whether you would be able, if called upon as a juror, to decide this case, unaffected by the opinion you now have, according to the law and the evidence ?</p> <p>A. I could.</p> <p>Q. _ Could you dismiss that opinion and try the case without being affected or influenced in your mind by it ?</p> <p>A. Yes, sir; because the opinion is not formed strong enough in my mind; I didn’t read it close enough.</p> <p>The prisoner challenged for cause.</p> <p>The challenge was overruled and a bill of exceptions sealed.</p> <p>The juror was sworn.</p> <p>Robert Neely.</p> <p>Q. Have you read of the Ortwein case ?</p> <p>A. I have.</p> <p>Q. Read of it in the newspapers ?</p> <p>A. Yes, sir; some.</p> <p>Q. Did you read the testimony taken before the coroner’s jury, as published in the newspapers ?</p> <p>A. I don’t think I read that testimony.</p> <p>Q. Did you read anything about his confession ?</p> <p>A. Yes.</p> <p>Q. Have you formed or expressed an opinion as to the guilt or innocence of Ortwein, the defendant ?</p> <p>A. I don’t know as I have formed an opinion, but I have expressed one. I have expressed myself in conversation in regard to it.</p> <p>Q. If you have not formed an opinion, how could you express one ?</p> <p>A. It is the same thing, I know; forming or expressing. It amounts to the same.</p> <p>Q. Then when you say you have not formed an opinion, but expressed one, you mean that expressing an opinion being the same as forming one, you have already formed one ?</p> <p>A. Yes, sir.</p> <p>Q. Have you that opinion still ?</p> <p>A. Well, I have not been thinking about it; I .have not been paying any attention to it at all.</p> <p>Q. When did you last express that opinion ?</p> <p>A. Oh, it is a good while ago.</p> <p>Q. Did you express it more than once ?</p> <p>A. More than once; yes, sir.</p> <p>Q. Did you express more than one opinion ?</p> <p>A. No, sir.</p> <p>Q. Always the same ?</p> <p>A. Yes, sir.</p> <p>Q. You think you have not that opinion now ?</p> <p>A. Well, I don’t know; I have not been thinking about it for some time.</p> <p>Q. Have you an opinion now, as to the guilt or innocence of the prisoner, Ortwein ?</p> <p>A. I believe I have an opinion now.</p> <p>Q. Would it require some evidence to change that opinion ?</p> <p>A. Well, yes; it would. '</p> <p>Q. By the court. — What do you mean by that ?</p> <p>A. I say it would require evidence to change that opinion.</p> <p>Q. Do you mean if you were called upon to act as a juror in the case, that that opinion could affect you in the verdict you would render ?</p> <p>A. No, sir.</p> <p>Q.- Then you think you could dismiss from your mind any such opinion as you entertain, and decide by the law and the evidence, uninfluenced by that, opinion ?</p> <p>A. Yes, sir; according to the testimony.</p> <p>The prisoner challenged for cause.</p> <p>The challenge was overruled and a bill of exceptions sealed.</p> <p>The juror was challenged peremptorily.</p> <p>The fourth and fifth points of the prisoner were :—</p> <p>4. If the jury have a reasonable doubt as to whether the killing was done under an irresistible impulse, the result of a disordered</p> <p>mind, which overpowered the will of the prisoner and took away his power of controlling it for the time, they cannot convict.</p> <p>5. If the jury have a reasonable doubt of the sanity of the prisoner at the time of the killing, they cannot convict.</p> <p>The court (Stowe, J.) answered:— .</p> <p>“ The fourth and fifth points are refused and will be more fully considered together. The law presumes sanity, but this presumption may be shaken or absolutely destroyed in some cases by the acts connected with and accompanying the commission of a crime. But before you acquit upon such ground, the evidence, whether arising out of such circumstances or from independent circumstances, must be sufficient to do more than merely raise a doubt as to the prisoner’s insanity. It must be sufficient fairly and reasonably to satisfy you of the fact of such insanity. The law does not require proof to an extent to preclude a reasonable doubt of such insanity, but it should be such as to satisfy you from the preponderance of testimony that the prisoner was insane at the time of the killing. As we have heretofore said upon this same subject, in a case which has received the endorsement of our Supreme Court: ‘ The law of the state is, that when the killing is admitted or proved, and insanity or want of legal responsibility is alleged as an excuse, it is the duty of the defendant to satisfy the jury that insanity actually existed at the time of the act, and a mere doubt as to such insanity, raised by the evidence, will not justify the jury in acquitting upon that ground. The law presumes sanity where an act is done, if no insanity is shown by the evidence; and where it appears a man was sane shortly preceding the act and shortly after, the presumption of sanity exists as to the time of the act, and no jury have a right to assume otherwise, unless the evidence in the cause bearing upon that question fairly convinces them that the defendant was actually insane at the time the act was committed. Having thus indicated to you the amount of evidence required to sustain the defence set up here, the question arises, what do we mean by insanity ? In a general sense it means unsoundness of mind, and, medically speaking, comprehends various conditions of the mind arising from various causes having various symptoms and producing different results. All these things we leave to those whose business it may be to study and investigate them. It is sufficient for us to say here and so far as the case is concerned, that it is a condition of the mind which renders it incapable of reasoning or judging.correctly of its own impulses, and of determining whether they should be followed or resisted. As said by the present Chief Justice, ‘ intelligence is not the only criterion, for it often exists in the madman in a high degree, making him shrewd, watchful and capable of determining his purposes, and selecting the means of accomplishment.’ Want of intelligence, therefore, is not the only defect to moderate the degree of offence, but with intelligence there may be an absence of power to determine properly the true nature and character of' the act, its effects upon the subject and the true responsibility of the action; a power necessary to control the impulse of the mind and prevent the execution of the thought that possesses it. In other words, it is the absence of that self-determining power, which in the sane mind renders it conscious of the real nature of its own purposes and capable of resisting wrong impulses. Where this self-governing power is wanting, whether it is caused by insanity, gross intoxicafion or other controlling influences, it cannot be said, truthfully, that the mind is fully conscious of its own purposes, and deliberates or premeditates the sense of the act describing murder in the first degree. We must, however, distinguish this defective frame of mind from that wickedness of heart which drives the murderer on to the commission of his crime, reckless of consequences. Evil passions do often seem to tear up reason by the root and urge on to murder with heedless rage, but they are the outpourings of a wicked nature, not of an unsound or disabled mind. It becomes necessary, therefore, to inquire upon the evidence in the' case, whether the prisoner was really able to deliberate and premeditate the homicide.</p> <p>“ Now, having stated the principles of law applicable to this case, the facts under the evidence in the cause are yours. The killing is not denied. The accompanying circumstances of time and manner clearly indicate, under a sane condition and the legal responsibility of the prisoner, the highest .crime known to the law. The only excuse urged in his behalf is, that he was insane and driven by some irresistible impulse to do the horrid deed. Are you fairly satisfied from the evidence that such was the case ? If you are, it is your duty to acquit; but, if not, it is just as clearly your duty to convict. Of the value of the medical and other evidence on behalf of this theory, it is your duty to determine, but I feel it is my duty to say, that in my opinion, such evidence as has been adduced in this respect, ought to be scanned by juries with great care and the utmost circumspection, because the inconsiderate and careless assumption of the sufficiency of such a defence as is here set up, would tend inevitably to the justification of every crime which can be committed. If, however, the evidence in this cause, as it is claimed by the counsel for the prisoner, should lead you to honest conviction of the prisoner’s insanity, at the time this act was done, it is your duty to give him the full benefit of such conclusion ; but, if it can be fairly and rationally reconciled with his sanity, though it may be unusual and startling and involves a degree of wickedness and depravity horrible to comtemplate, it is your duty to reconcile it and render your verdict accordingly.”</p> <p>The jury found the prisoner guilty of murder in the first degree.</p> <p>The prisoner took a writ of error, and assigned for error, amongst other things, the refusal of the court to sustain his challenges for cause, and the answer of the court to his fourth and fifth points.</p>

199. This was a scire facias sur recognisance of bail in error, issued December 12th 1873, by Samuel Reynolds against William McKee, Joseph D. McGill, A. Inskeep, J. B. Poor and Thomas Barnes. The writ was served on all the defendants.

<p>1. A testator directed that a monument, which he to some extent described, should he erected over his grave, “ the cost to he $5000, or thereabouts,” and directed his executors to employ Kerr to draw the plan of the monument. Held, that the intention of the testator was that Kerr should have a discretion up to $5000, not that it should necessarily cost that sum.</p> <p>2. Kerr having exercised his discretion in good faith in making a plan hy which the monument would cost but $3500, the court could not substitute its discretion for his.</p> <p>3. Williams’s Appeal, 23 P. R. Smith 249, cited.</p>

<p>Error to the District Court of Allegheny eounty: Of October and November Term 1874, No. 250.</p> <p>This was an action of trespass q. o. brought to July Term 1'872, of the court below, by Edward B. Barton against John .■Simonds, George Simonds and James Simonds.</p> <p>The declaration was that the plaintiff was seised in fee of an island in the Allegheny river, and the defendants “ with force and arms ¡broke ’into and upon said close, and with flats and boats and other crafts, seized, took and carried away ten thousand bushels of sand (of which said ' island is partially composed) of the value of five hundred dollars, and also then and there greatly injured and despoiled said island and the free use and enjoyment thereof to the said plaintiff — and converted and disposed of said sand to their own use; and other wrongs to the said plaintiff then and there did,” &c.</p> <p>The defendants pleaded “Not Guilty.”</p> <p>The cause was tried, January 22d 1874, before White, J.</p> <p>The plaintiff gave evidence to establish his title to the locus in quo ; and also gave evidence that the defendants took sand from it.</p> <p>The defendants gave evidence to show that the title was not in the plaintiff, and that the sand, which they admitted they took, was not from his close.</p> <p>On the 24th of January there was a verdict for the plaintiff for $5. The defendants moved for a new trial, which on the 19th of June was overruled; on the 10th of July judgment was entered •on the verdict.</p> <p>On the 11th of August the defendant obtained a rule on plaintiff to show cause why upon the payment of the amount of the verdict with interest thereon from date of same, together with an amount of costs equal to the verdict, the judgment entered in the case and costs, so far as defendants are concerned, should not be satisfied. September 8th 1874, the rule was discharged, Judge White delivering this opinion:—</p> <p>“The plaintiff'brought trespass quare clausum fregit against defendants for entering his close, digging and carrying away sand, and obtained a verdict for five dollars. The defendants admitted they took sand from the river bed, but denied that where they took the sand was a part of plaintiff s island. They thus directly called in question the plaintiff’s title to the locus in quo, and this was the chief, and almost the only, question involved in the trial. Nearly all the testimony bore on this point. On this ground I think the plaintiff is entitled to full costs, and shall make the certificate rer quired by the statute of 22 and 23 Car. 2, on the back of the record.”</p> <p>The following endorsement was made on the record:—</p> <p>“ I hereby certify that the plaintiff’s title was the chief matter in controversy at the trial of this case.</p> <p>J. W. E. White, Judge at the trial. September 8th 1874.”</p> <p>The defendants took a writ of error and assigned for error, the discharging their rule and certifying on the record as above stated.</p>

<p>1. In a direct proceeding to set aside a foreign attachment, the court will quash or reverse where the sheriff has omitted to return a service on a person in possession of the land attached, or to make^ publication if the possession be vacant.</p> <p>2. In a collateral proceeding to recover the land sold by the sheriff before the attachment has been set aside or reversed, such omission is but an irregularity and will not render the judgment and executions in the attachment absolutely void.</p> <p>3. Such judgment and executions, though voidable, will support the sheriff’s sale.</p> <p>Error'to the Court of Common Pleas of Venango county: Of October and November Term 1872, No. 153.</p> <p>This was an action of ejectment by David Sterrett and James Vanderlin against Thomas S. Howarth and William Howarth, for a tract of land in Cornplant.er township, commenced May 18th 1871.</p> <p>Both parties claimed through Otto Ludovice, who owned the land in April 1866.</p> <p>The plaintiffs’ title was as follows:—</p> <p>To April Term 1866, Thomas S. Howarth issued a foreign attachment against Ludovice and others, partners.</p> <p>The sheriff returned amongst other things, that he had attached the premises in dispute “and summoned P. Lent by making known contents to him by giving a true copy of the same.” On the 30th of November 1866, on motion of plaintiffs’ attorney, judgment was entered for default of appearanoe. After a rule on prothonotary to liquidate the damages and proof of notice of the rule and affidavit of the claim, the prothonotary, on the 30th of March 1867, assessed the damages at $1154.33.</p> <p>To November Term 1867 a fi. fa. was issued and returned' “ Nulla bona.” On the 28th of October 1868, an alias fi. fa. was issued, under which the premises in dispute were levied on and condemned and afterwards sold under a venditioni to S. P. McCalmont and sheriff’s deed to him acknowledged January 28th 1869, McCalmont conveyed to F. S. Howarth, one of the defendants, February 9th 1869.</p> <p>The defendant’s title was as follows :—</p> <p>On the 30th of March 1866, James Vanderlin commenced an action of assumpsit by foreign attachment against Otto Ludovice and Rudolph Ludovice; an appearance was entered for defendants and an affidavit of defence filed. On trial the plaintiffs recovered a verdict for $6783.34; judgment was entered on the verdict January 14th 1871. Under this judgment the land in dispute was sold by the sheriff to David Sterrett and the deed acknowledged April 27th 1871. On the 17th of May Sterrett conveyed an undivided half to Vanderlin.</p> <p>The plaintiffs’ points were :— ‘</p> <p>1. In proceedings in foreign attachment the act relating thereto must be strictly pursued, and it being one of the requisites of the act that in case of attachment levied on lands the sheriff shall leave a copy of the writ with the tenant or other person in, actual possession, holding under the defendant, and to summon such person as garnishee, and if no person is in actual possession, to publish the writ six weeks; neither of which having been done in this case the attachment and all subsequent proceedings thereunder are void, and such a failure to attach the land as the law directs is not cured by the acknowledgment of the sheriff’s deed in sale under said attachment.</p> <p>2. If any person be summoned as garnishee the act requires a scire facias to he issued against such garnishee and judgment thereon before execution can issue against such defendant, and no such scire facias having been issued in this case, the execution and sale thereunder are void.</p> <p>The defendants’ points were :—</p> <p>1. The judgment Howarth v. Ludovice, under which sale was made and defendant claims title, is not a void judgment, but only voidable.</p> <p>2. Said judgment could be avoided only by the defendant; that the plaintiff being a stranger to the judgment, could not impeach it for any irregularity however gross.</p> <p>3. The sale to the defendant having been made upon an execution issued upon a judgment subsisting and unappealed from, passed a good title to the purchaser, and the verdict must be for the defendants.</p> <p>The court (Jenks, P. J., of the 18th district) charged :—</p> <p>“We answer the 1st and 2d points of plaintiffs in the negative, and answer all the points submitted by the defendant in the affirmative.”</p> <p>The verdict was for the defendants.</p> <p>The plaintiffs removed the record to the Supreme Court, and assigned for error, the answers to the points.</p>

<p>1. To show by parol that a deed absolute on its face is a mortgage, the proof must be clear, explicit and unequivocal.</p> <p>2. The proof must establish an agreement substantially contemporaneous with the execution and delivery of the deed, and not rest on the subsequent admissions and declarations of the mortgagee only.</p> <p>3. Guthrie’s land was sold at sheriff’s sale, purchased by Lane, a creditor; he conveyed to Plumer. Evidence of conversations between Lane and Guthrie, months before the conveyance to Plumer and not in his presence, tending to show an understanding that Plumer would advance Guthrie’s debt to Lane, and take the property as security for Guthrie, Meld to be inadmissible.</p> <p>4. To convert an absolute deed into a mortgage, the contract to do so need not be express, it may be inferred from facts and circumstances ; but a knowledge of these must be brought home to the owner of the legal title before he can be affected by them.</p> <p>5. Evidence of such facts and circumstances should be received with caution, and if it does not make a case on which a chancellor would decree a conveyance, should not be submitted to the jury.</p> <p>6. Eleven years after the conveyance to Plumer he made a lease of the land to Guthrie, who took possession under it. If the original conveyance to Plumer was a mortgage the lease was evidence of Guthrie’s abandonment of it.</p> <p>7. Evidence in this case not sufficient to submit to a jury on the question whether the deed was a mortgage.</p>

43. On the 22d of January 1872, Greorge H. Bissell & Co. commenced an action of assumpsit against Jessie A. Losee, as endorser of a note drawn by Eugene L. Smith, payable to John D. McFarland, dated January 15th 1870, for $625 with interest and payable in nineteen months. At the same time a similar note payable in two years for $1250 was given; after they fell due suit was brought on each. Both suits were tried together by order of the court.

130. This was an action of assumpsit commenced May 15th 1872, by Thomas Reed against David Gilmore and others, partners as Gilmore & Sons. According to the plaintiff’s history of the case, the action was for a balance alleged by the plaintiff to be due him by the defendants on a settlement. Neither the history of the case nor the evidence contained on the paper-book show the settlement nor give the amount alleged to be due.

<p>Error to the Court of Common Pleas of Erie county: Of October and November Term 1874, No. 50.</p> <p>The proceedings in this case W'ere commenced before W. Q. Jackson; Esq., a justice of the peace of the county of Erie, by the Commonwealth of Pennsylvania at the instance of Harris Johnson who sues for himself as well as for Wayne township in the county of Erie, against Gordon Betts.</p> <p>The record of the justice was as follows :—</p> <p>“ Summons in debt for the recovery of penalty not exceeding $300. March 1st 1873, summons issued to William Kincaid, constable of Wayne township, returnable March 8th 1873. * * * March 8th 1873, parties appear. Plaintiff complains that the defendant has violated the provisions of the 67th sect, of the Act of Assembly, relating to roads, highways and bridges, passed the 13th day of June 1836, by having in the month of July or August 1872, torn out, destroyed and filled up a drain made by the road commissioners of Wayne township, in the county of Erie, in the public road in said township of Wayne, leading from Carter Hill, &c., * * * and so destroying and filling up said drain that the water could not cross said road: — without the authority and against the order of the said road commissioners of Wayne township aforesaid, for the (then) time being, whereby he incurred a penalty of twenty dollars, which plaintiff claims'.”</p> <p>The record then states the examination of witnesses for the prosecution and the overruling as irrelevant, an offer of evidence by the defendant, and proceeds:—</p> <p>“ After hearing the parties, their proofs and allegations, I do postpone giving judgment till Saturday, March 15th 1873, at 4 o’clock p. m., with notice of said postponement to both parties.</p> <p>“And now, March 15th 1873, the justice publicly declares that the defendant is convicted of the said offence against the form of the statute, and gives judgment for the plaintiff for twenty dollars, to be distributed as the Act of Assembly aforesaid doth direct.” The defendant removed the record of the justice to the Court of Common Pleas by certiorari.</p> <p>One of the exceptions to the justice’s proceedings was that “ the act complained of is not such an act as the 67th sect, of the Act of Assembly of June 13th 1836 contemplates.”</p> <p>The 67th and 68th sect, of the Act of June 13th 1836, Pamph. L. 564, 2 Br. Purd. 1284, pi. 98, 99, are as follows:—</p> <p>67. “ If any person shall stop, fill up or injure any drain or ditch made by any supervisor for the purpose of draining the water from any public road or highway, or shall divert or change the course thereof, without the authority of the supervisor for the time being, such person shall, for every such offence, forfeit and pay a sum not less than four dollars nor more than twenty dollars.”</p> <p>68. “ If any person shall stop or obstruct any public road or highway, or shall commit any nuisance thereon by felling trees, making fences, turning the road, or in any other way, and do not on notice given by the supervisors of the respective township, forthwith remove the nuisance and repair the damage done to such road, such person shall, for every such offence, forfeit and pay a sum not less than ten dollars nor more than forty dollars. Provided, That nothing in this section shall be deemed to debar an indictment for any such nuisance, as in case of misdemeanor at common law.”</p> <p>In deciding the case Vincent, J., said :—</p> <p>“ The 31st sect, of the Act of 1836 requires supervisors to make and maintain sufficient causeways of stone or timber, in making roads on marshy, swampy grounds, and to make and maintain sufficient bridges over small creeks and rivulets.</p> <p>■ “ The 32d sect, provides that the supervisors shall also have power and authority, as aforesaid — that is as in case of obtaining materials, to enter upon any such lands or enclosures, and cut open, maintain and repair all such drains or ditches through the same as they shall judge necessary to carry the water from said roads.</p> <p>“ In the 67th sect, a penalty is provided of not less than four nor more than twenty dollars against any person who shall stop, fill up or injure any drain or ditch made by any supervisor, for the purpose of draining the water from any public road or highway, or who shall divert or change the course thereof without the authority of the supervisor for the time being.</p> <p>£‘ The proceedings under review were commenced under this section, and the transcript sets out that the act complained of consisted in the tearing out, destroying and filling up by the plaintiff in error and defendant below of a drain made by the Road Commissioners of Wayne township, in a certain public road in said township, and so filling up and destroying said drain that water could not cross said road, and that, without the authority or consent of said road commissioners.</p> <p>££ The law under which this suit is brought is a penal one, and must be strictly construed, and unless the offence charged is not only clearly but technically covered by sect. 67 of the Act of 1836, the suit cannot be sustained.</p> <p>££ More especially are we called upon so to construe it if there he another penalty imposed by the act for the offence alleged.</p> <p>“ The act charged does not consist in interfering with a ditch or drain made and maintained to carry water from a public road, hut for filling up and destroying a ditch or drain across the highway incidentally needing a culvert or sluiceway under the road for the purpose of passing the water from one side of the highway to the other, and not having, so far as the record shows, any connection whatever with a drain or ditch used for the purpose of carrying water from the road.</p> <p>“ Such an act as the one alleged is a nuisance and injurious to the highway, and, in our opinion, clearly punishable under the 68th sect, of the act which provides the penalty of fine in a suit before a magistrate, and also of indictment at common law against any person who shall obstruct any public road or highway, or shall commit any nuisance thereon by felling trees, making fences, turning the road, or in any other way, and also do not on notice given by the supervisor of the respective township, forthwith remove the nuisance and repair the damage done to such road.</p> <p>££ Presumptively it is a nuisance in the highway to thereon stop a sluice or culvert passing under it, put there by the authority of one legally in charge of the road, nor could it be a defence to an indictment for such an act, that, in the opinion of the perpetrator, the road was as well or better without it.</p> <p>££ That is not a question for the decision of a private citizen, but exclusively for the judgment and decision of the road commissioners, nor can the correctness of their decision be inquired into collaterally.</p> <p>££ The 67th sect, is intended, no doubt, to punish the owners or occupants of such lands and enclosures if they interfere with the drains or ditches cut and opened through their lands, a very necessary prevention to very natural acts on the part of such owners under many conceivable circumstances, which the penalties in the 68th sect, are for those who have less excuse for interfering with the acts of the road commissioners, also, in' fact, are inexcusable trespassers on the rights of'the public.</p> <p>“ For the reasons we have given we are of the opinion the justice was right in rejecting the testimony offered by the defendant. If the road commissioners, or either of them, has acted maliciously or partially in his office, there is a remedy by indictment against him or them, for such conduct would be a misdemeanor in office; but until that is judicially established in a direct proceeding for that purpose, the legal presumption is that they have acted in good faith and for the best interest of the public.</p> <p>“ We are also of the opinion for the reasons given that the proceedings in this case were commenced under the wrong section of the act, and they must therefore be reversed by the court.”</p> <p>The judgment of the justice was reversed. The relator removed the record to the Supreme Court by certiorari and assigned the reversal of the judgment of the justice for error.</p> <p>When the cause came up for argument in the Supreme Court, a motion was made to quash the writ of error on the ground that the judgment of the Court of Common Pleas was final under the Act of March 20th 1810, sect. 24, 5 Smith’s L. 172, 1 Br. Purd. 607, pi. 26.</p>

<p>1. A rule of court was, that an affidavit of defence should state whether the defence was to the whole or part of the claim, and if to part, to what part; the plaintiff might take judgment for the part confessed to be due, and such judgment, for the purposes of execution, should be final but not a bar to the recovery of any balance due; plaintiff taking judgment for the part confessed, to state whether he accepts it in full, or will proceed for the balance; if he does not so state, the judgment to be deemed final. Held, that the court had power to make such rule.</p> <p>2. Plaintiff’s claim was for §1227 ; the defendant in his affidavit admitted §810 to be due, and averred a defence for the remainder. The plaintiff took judgment for §810, complying with the rule; issued execution, went to trial for the remainder and recovered a verdict for §450, “ in addition to judgment for §810.” Held, that the first judgment was interlocutory, except for execution, and the judgment on the verdict was valid.</p> <p>3. Apart from the Act of Assembly, the power to make rules is inherent in every court of record.</p> <p>4. Brazier v. Banning, 8 Harris 345, distinguished.</p>

<p>1. Defendant bought from plaintiff water-wheels for a mill under a warranty, that they would do specified work or the defendant might rescind the contract, and plaintiff would refund the money paid, pay all expenses and damages. The defendant alleged the warranty had been broken ; he did not rescind the contract, but continued to use the wheels. Held, that the measure of damages was the difference between the value of the wheels as warranted and the real value or market price.</p> <p>2. In such case the contract price does not enter into the question as a rule of measurement. ■</p> <p>3. Where there was no other evidence of the real value of the article than the contract price, that is presumed to be the real value.</p>

<p>1. A plea in abatement may be stricken off -when it is irregular, not filed in time, not verified by affidavit or when the pleas are double ; but not on the ground of insufficiency.</p> <p>2. A plea in abatement averred the pendency of another suit for the same cause of action, the defendant denying that there was such suit, should have pleaded mil tiel record, or if he admitted the truth of the plea and denied its sufficiency should have demurred.</p> <p>3. A railroad was leased to a railroad company, the lessors alleging a breach of covenants by the lessees, declared the lease forfeited and took possession of the road. A bill was filed in the Supreme Court by the lessees to restrain the lessors from interfering with them in the use of the road ; a preliminary injunction was awarded forbidding the lessees to use the road, &e., until the further order of the court. Then the lessees filed a cross-bill, setting out the breaches of the lease, &c., and praying for a decree to reinstate them in possession of the road ; answers were filed to both bills and a master appointed to take testimony. "Whilst the matter was before him, the lessors brought an ejectment for their road on the ground of the forfeiture. Reid, that pending the equity suit the lessors could not institute another proceeding involving the same question.</p> <p>4. The Supreme Court had jurisdiction to relieve against forfeiture, on general principles, independently of the Act of April 10th 1869.</p> <p>5. The preliminary injunction had the force of a final one until dissolved or made perpetual; and might be pleaded in abatement to the ejectment.</p> <p>6. The lessors might have demurred to the bill in equity that the forfeiture was not such as equity would have relieved against, and if decided in their favor, could have proceeded at law.</p>

213. This was an action of trover, commenced October 8th 1868, by the Pennsylvania Railroad Company against Edward J. Waring who survived Robert Lafferty, partners, &c. The style of the action was afterwards amended by adding to plaintiffs’ name, “ for the use of the Allegheny Valley Railroad Company.” The defendant pleaded, “ Not guilty.” The action was brought for the value of three car loads of crude oil, delivered by the Pennsylvania Railroad Company by mistake in August…

<p>1. Kemp, in 1825, entered on a warranted tract as vacant, made improvements and retained possession ; in 1839, Stewart obtained a patent and iraudulently induced Kemp to accept a lease at a nominal rent; Kemp held possession for thirty years more, claiming to own the land, no rent being demanded and he paying none, Stewart having in the meantime admitted that Kemp owned the land. Stewart sold the land ; under the circumstances it was incumbent on the purchaser to make inquiry as to Kemp’s title.</p> <p>2. The rule, that one holding under a lease shall not dispute his lessor’s title, does not apply where one having no title, by trick or artifice induces another in possession to take a lease.</p> <p>3. Ordinarily producing to a vendee a lease to one who has possession of the land, determines how he holds it; inquiry of him by the vendee of the lessor for secret frauds or equities is not necessary; the presumption is that he holds under the landlord’s title and according to the lease.</p> <p>4. If the lessor had title, although inchoate or defective at the execution of the lease ; inquiry by a bonS, fide purchaser would not be a duty.</p> <p>5. The facts as alleged in this case sufficient to put a purchaser from the lessor upon inquiry as to the lessee’s title and were for the jury.</p>

<p>Appeal by John B. Canfield from the Court of Common Pleas of Beaver county: Of October and November Term 1874, No. 119. In the distribution of the proceeds of the sheriff's sale of the personal property of William Modes.</p> <p>Canfield and Modes had entered into the following agreement:—</p> <p>“ Said Canfield to furnish soda-ash and other materials to said Modes, advance money to him, accept his drafts, and otherwise become liable on his paper for his accommodation, for the purpose of assisting and enabling the said Modes to carry on said business.</p> <p>“ Said Modes, in consideration of this agreement and assumption on part of Canfield, to give to Canfield a lien, by way of security therefor, upon all the products of the glass works of him, the said Modes, as the same may be manufactured, at the rate or in the proportion of one dollar in value of said goods for every seventy-five cents of material furnished, moneys advanced, and liabilities incurred by said Canfield, as aforesaid. The said Canfield to have the right to sell any or all of said goods, if he should so desire, and in that case to retain the proceeds, to be applied to said indebtedness ; or, if the said Modes should sell the same, then the said Canfield to receive the avails thereof, -whether in money or paper, given by the purchaser or purchasers thereof.</p> <p>“ If, on final settlement, it should be found that out of said goods and securities, the said Canfield should, have received more than enough to satisfy the said indebtedness of said Modes to him, the surplus then to be paid over to Modes.</p> <p>“ This agreement to commence and take effect on the 15th Dec. 1871.”</p> <p>Afterwards Henrici & Lenz, trustees, &c., issued executions, No. 35 and 36 to March Term 1873 of the Court of Common Pleas of Beaver county against William F. Modes and others. Doninick Betchetter issued execution No. 37 to the same term against William F. Modes; John Miller issued an execution No. 38 to the same term against William F. Modes. These executions were all put into the hands of the sheriff at the same hour and a levy made on the real and personal property of the defendants.</p> <p>John B. Canfield issued an execution against “ William F. Modes as Beaver Falls Glass Company,” No 82 to the same term. On the 8th of January 1873 a levy was made on Canfield’s execution on the same property that had been levied on under the previous executions subject to those levies. The personal property was sold on the 29th of January 1873, under the executions for $14,866.66.</p> <p>Joseph Ledlie, Esq., was appointed auditor to report distribution of the fund arising from the sheriff s sale.</p> <p>He reported:</p> <p>“ It is conceded that William F. Modes was doing business as the Beaver Falls Company, and that he was insolvent on the 18th day of December 1872.</p> <p>“ The executions of Henrici & Lenz, Dominick Betchetter and John Miller, were, it appears, by the endorsement of the sheriff on said writs, received by him on the 18th day of December 1872, at five minutes after two o’clock in the afternoon. The next execution in the order of time is that of J. B. Canfield, which, it appears, was received by the sheriff on the 8th day of January 1873, at 12 M.</p> <p>“ The proceeds of sale are claimed by Henrici & Lenz, Dominick Betchetter and John Miller, by reason of their several executions having been first issued and placed in the hands of the sheriff. An effort was made to show that Henrici & Lenz, through their agent and attorney, Mr. Hice, had made an agreement or arrangement with W. F. Modes the defendant, not to enforce the collection of their judgments against him ; and that in pursuance of that agreement, John B. Canfield had endorsed notes and made advancements to Modes, and that the executions of Henrici & Lenz were issued in violation of that agreement, and were postponed.</p> <p>“ It appears, by an article of agreement between John B. Can-field and W. E. Modes, offered in evidence, that Canfield was to furnish soda-ash and other material, advance money, accept drafts, and otherwise assist him in carrying on his business in the glass works, and in consideration therefor, the said Modes was to give Canfield ‘ a lien, by way of security therefor, upon all the products of the glass works, at the rate of one dollar in value of said goods, for every seventy-five cents of material furnished, money advanced, and liability incurred by Canfield.’ * * *</p> <p>The auditor stated the evidence of the agreement between Henrici & Lenz and their attorney and proceeded :—</p> <p>“ In view of these facts, the auditor is of the opinion that the alleged agreement between Mr. Hice and W. E. Modes is not sustained, and therefore the auditor is relieved from any inquiry as to its effect.</p> <p>“ The property of W. F. Modes, consisting of manufactured glassware, material, &c., sold by the sheriff on the above-recited writs of fi. fa., for the sum of $14,866.66, which is the fund for distribution in this proceeding, and is, in the opinion of the auditor, liable for the claims for wages of clerks, mechanics and laborers in the employ of said Modes, for labor and services which accrued within a period of six months prior to the date of the levy and sale by the sheriff, not exceeding two hundred dollars each. It appears from the testimony, that the employees of W. F. Modes were generally paid to November 1st 1872, and that more than two hundred dollars of those not so paid accrued within six months prior to the date of the levy. * * * The auditor holds that the fund is applicable, first, to costs and expenses of audit; second, to claims of the laborers, mechanics and clerks, and third, the balance is applied to fi. fas. Nos. 35, 36, 37 and 38, of March Term 1873, pro ratá; said writs having all been placed in'the hands of the sheriff at the same time, and the fund not being' sufficient .to pay them in full.”</p> <p>The auditor, in accordance with the principles of his report, after deducting expenses, &c., awarded to the laborers, the amount of their claims, viz., $9926.30, and the remainder pro raid to executions No. 35, 36, 37 and 38.</p> <p>Exceptions were filed to the report.</p> <p>The court overruled the exceptions, confirmed the report and decreed distribution accordingly. Canfield appealed from the decree of the court. He assigned for error, decreeing to the laborers, &c., the amount of their claims, awarding to Henrici & Lentz any part of the fund; and not awarding the fund to Canfield. •</p> <p>The claim of laborers for preference in the distribution was under the Act of April 9th 1872, sect. 1, Pamph. L. 47, 2 Br. Purd. 1464, pi. 1. It provides that the wages of any laborer, &c., for any period not exceeding six months immediately preceding the sale, &c., of works, mines, manufactories or business, &c., shall be a lien upon such manufactory, &c., and shall be preferred and first paid, not exceeding $200 out of the proceeds of the sale of such manufactory, &e., “ provided that this act shall not be so construed as to impair contracts existing or liens of record vested prior to its passage.”</p>

<p>Error to the Court of Common Pleas of Mercer county: Of October and November Term 1874, No. 290.</p> <p>This was an action on the case, commenced January 30th 1873, by James Kirby against The Pennsylvania Company operating The Erie and Pittsburg Railroad.</p> <p>The cause of action alleged was the injury to the plaintiff by the negligence of the defendants’ servants in allowing a train of cars to run against the train on which the plaintiff was lawfully employed, throwing him off his train by the shock and seriously injuring him.</p> <p>The testimony taken and filed by the court having been lost or mislaid, the following facts were admitted by the parties:—</p> <p>1. That the Erie and Pittsburg Railroad runs through the borough of Sharon in a northerly direction, and was, with the switch hereinafter described, in the sole possession, and under the exclusive control of the defendants at the time of the injury complained of.</p> <p>2. That at the same time there was a coal railroad commencing a few miles east of the defendants’ road, and terminating within a few rods east thereof, and known as the Sharon and Greenfield Railroad.</p> <p>3. That the defendants had constructed a switch from their main road, as shown by the accompanying map, to the terminus of said last-mentioned road, and were, at the, time of the accident hereinafter described, transporting to market the coal passing over said Sbaron and Greenfield Railroad.</p> <p>4. That the only relation between said roads was solely of a business character.</p> <p>5. That on the--- day of June 1872, the plaintiff not being the servant of the defendants, by contract, express or implied, but being engaged in the service of other parties on said switch in loading coal for transportation by the defendants as aforesaid, was severely injured in several parts of his body, and especially in one of his arms, which is, in all probability, permanently disabled, and which injury happened as follows : A large train of cars laden with limestone became disengaged from the locomotive some distance north of the northern terminus of said switch, and running south on a steep down grade, without sufiicient brakesmen tbereon to control it, passed into said switch, accidentally left open, and ran with great force against a train of coal-cars on which the plaintiff was lawfully standing with his face to the south, and which collision caused the injury complained of.</p> <p>££ October 24th 1873, judgment of nonsuit was entered, and leave granted to move to take it off within four days.”</p> <p>The motion was overruled.</p> <p>The plaintiff took a writ of error.</p> <p>He assigned for error the entering of the nonsuit and the refusal to take it off.</p> <p>The Act of April 4th 1868, sect. 1 (Pamph. L. 58, 2 Br. Purd. 1094, pi. 5), which was considered in this case, is as follows:—</p> <p>££ That when any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company, or in or about any train or car therein, or thereon, of which company such person is not an employee, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employee: provided, that this section shall not apply to passengers.”</p> <p>The contention of the plaintiff in error was that this act was unconstitutional.</p>

75. To the September Term 1878 of the court below, Matthew H. Pillow brought an action on the case against The Pittsburg & Connellsville Railroad Company, for negligence by the servants of the company, in not suppressing a fight in one of their cars in which the plaintiff was a passenger, which resulted in the loss of his eye. The case was tried, February 18th 1874, before Collier, J. The circumstances of the case, as alleged by the plaintiff, appear by his testimony.