Volume 79 — Pennsylvania State Reports

<p>1. Ege in 1815 conveyed unimproved land, known as the “ Cox tract,” in trust for the wife of his son and her heirs, and died soon afterwards; at the time of the conveyance, and before, the son occupied an adjoining iron-works of his father, known as “Mt. Holly Estate;” this was adjudged to him in partition; he coaled, cut timber, &c., on the “ Cox tract” for more than twenty-one years; the “ Mt. Holly Estate” was sold by the sheriff in 1836 as the property of the son; the trust deed was not recorded until June 1848 ; the wife died in December 1848 and the son in 1858; no claim for the “ Cox tract” was made by her heirs till they brought ejectment in 1872 against parties claiming under the sheriff’s sale, and alleging that the “ Cox tract” was part of the “Mt. Holly Estate.” Held, under the circumstances of the case, the heirs could recover.</p> <p>2. The record of the deed, showing that it was executed and acknowledged, raised the legal presumption that it had been delivered.</p> <p>3. Ege being the owner of the land and having by the deed of trust separated the “ Cox tract” from the “ Mt. Holly Estate,” evidence of possession of the “ Cox tract” by the son, in connection with that estate before the deed, was immaterial to establish adverse holding by him.</p> <p>4. In the proceedings in partition the “ Cox tract” was not described as part of “ Mt. Holly Estate.” Held, that neither the son, nor those claiming under him, took any title to it, by the adjudication to him of that estate.</p> <p>5. A party alleging error must prove it, and when the error relates to documents, copies must be produced to show their bearing.</p> <p>6. The possession of the son during the life of his wife was not adverse, and the statute did not run; the evidence in the case did not show a continuous possession after the sheriff’s sale.</p>

<p>Error to the Court of Common Pleas of Dauphin county: Of May Term 1875, No. 55.</p> <p>This was an action on the case, brought September 10th 1870, by Daniel Lewis and Margaret his wife against The Pennsylvania Railroad Company, for causing the death of their son, Edward Lewis, a child eight years and six months old, through the negligence of defendants’ servants.</p> <p>The parents lived near Lochiel Iron-Works in the city of Harrisburg, a short distance from defendants’ railroad track; on the 22d of November 1869, the child was sent by his mother on an errand to an aunt on the other side of the track; whilst on the track he was struck by a passenger train of the defendants’ moving west and killed.</p> <p>By an ordinance of the' city of Harrisburg, passed in 1862, the speed of railroad trains within the city was limited to seven miles per hour ; at the time and up to 1868 the southeastern boundary of the city was Hanna street; and the place where the accident occurred was,-prior to 1868, outside of the city. In that year the city limits were extended beyond Hanna street; nothing was done to extend the ordinance beyond Hanna’ street, until, by the Act of April 9th 1869, the limits of the city were still further extended, and the whole territory was made subject to the same ordinances, &c., as those by which the city was then governed. The accident happened at a point within the city limits at the time of its occurrence.</p> <p>The case was tried December 14th 1874,, before Henderson, J.</p> <p>Margaret Lewis the mother testified, that about noon .on the 22d of November 1869, she directed her son to go to his aunt’s; the boy left the house as directed; she did not see him again till he was brought home dead; the father was not in the house at the time ; he was at work at the Lochiel Mill where he was employed ; the aunt lived at the mill, which was half-a-mile west of the plaintiff’s house.” The aunt’s house was on the other side of the railroad.</p> <p>Daniel Balsley testified, that some time before the accident, he had built a house for the Lochiel Company at their mill; by order of that company he made a partition in it; and a small part of the house was used as a station; the defendants had no ticket agent there; the accommodation train stopped there. “ The Lochiel Iron Company had a flag there. I put a private crossing at this station to get sand from the river. The water-closets of the mill were on the other side of the railroad from the mill. This private .crossing was used by the Lochiel Company to get the sand over, and in going to water-closets. In 1869 there was only one row of forty houses between Lochiel and McCormick’s Furnace; the distance between the two furnaces was aboutfive hundred yards. There were considerable houses from McCormick’s to Harrisburg, and manufactories also; there was a curve below the station-house; there were forty-eight houses below the Lochiel Mill; th-ere was a siding below the mill; there was a very long coal-bin alongside the road, on the east side; they were up within ten or twelve feet of this crossing; coal-bin belonged to Lochiel Company; I could see an approaching train one hundred and fifty yards from coaíbin ; in 1869 there were two tracks there; bin came within eight feet of the track; the siding did not interfere in looking down the track; we could see over gondola cars, but could not see over high cars on the siding; the Lochiel Company ran a cart road from the hack road to the station, hut it was not safe; when the accident happened the hoy was about fifteen feet above the crossing, on the railroad; the boy lay, as near as I could tell, about the centre of the brick house called the depot, on the track. * * * This road, called the back road, after crossing the railroad, goes up through McCormick’s property to Harrisburg; this road was used by everybody; I saw this accident; I was standing a little above the brick house, about fifteen feet from the railroad ; I heard the whistle sounding very loudly, and I ran and saw the pilot strike the boy; he was on the right-hand track coming up, and the train was coming in the same direction; a freight was going, east at the same time on the other track ; I was attracted by the ‘ danger whistle ’ of one of the locomotives, but cannot say which; all the work I did was at the expense of Lochiel; neither I nor they had any connection with the Pennsylvania Railroad Company; my opinion that the train was running at the rate of twenty-five miles an hour, is formed from simply looking at the train of cars running along the railroad. The length of Lochiel Mill is three hundred and one feet; the whole of it is west of the cart-road; the front of the station is fifteen feet from the front of mill.”</p> <p>There was evidence, by a number of witnesses, that the railroad track in the vicinity of the place of the accident was travelled generally by the people, especially since the building of the Lochiel Mills, because it was a shorter way than on the public road; the ties were worn smooth by the travel.</p> <p>For defendants, Christian Hoffmaster testified : “ I was engineer on mail train; it left Philadelphia at 7:50; schedule time at Harrisburg was 12:45 ; it reached Lochiel at 12:35 or 12:37, on time; the train was in order, and had chain-brake on; there is no better brake in use; the brake was in good order; the road-bed was in good order. * * * As I came around the curve, before reaching Lochiel, I saw a boy coming down from the mill towards the railroad ; I blowed the whistle, but he took no heed to it; he walked right on the track in front of train and turned up towards Harrisburg ; I did all I could to stop the train, but could not; the engine struck the boy and knocked him over on the other track; I applied the brake, and broke the chain in doing so; the boy, when I first saw‘him, was forty or fifty feet from me; the bell rang and I whistled; I had whistled before I reached the curve; the boy was five or six yards away from us when he stepped upon the track; the boy could not have been saved if the brake had not broken; I could not have done anything more than I did do to save the' boy; I do not think he could have been saved if we had had the air-brake; it was not invented at that time ; I examined the break; it was a clean break, and good iron ; the speed of the train, at the time the boy was struck, was from fifteen to eighteei miles an hour; we shut off steam at the bridge below Lochiel Mill — three hundred or four hundred yards below; its schedule time is about twenty-one or twenty-two miles an hour; a train would slack up in three or four hundred yards from the shut-off to about fifteen or eighteen miles an hour; I think we had six cars. * * * We entered the city at Hanna street at seven miles ; we had no knowledge that it extended further east than that; we slackened up because we were coming into the city limits at Hanna street.”</p> <p>There was other evidence, that the brake on the train at the time of the accident was the best then in use ; it would not stop a train running at fifteen or eighteen miles an hour in 60 feet; running at seven miles an hour a train could not be stopped in 50 feet. There'was evidence also, that Hoffmaster was a first-class engineer, of long experience, one of the best in the employ of the defendants.</p> <p>In rebuttal, the plaintiff gave evidence that Hoffmaster, when before the coroner’s inquest, testified, that at the time of the accident the train was running at the rate of from twenty to twenty-five miles per hour.</p> <p>At the request of defendants- the court withdrew from the consideration of the jury all that part of the evidence relating to the permissive use of the track of defendants’ road by the public in the vicinity of the place of the accident.</p> <p>The following are defendants’ points with their answers :—</p> <p>1. Parents owe protection to their children. The plaintiffs’ testimony in this case showing that they permitted the boy to go on the railroad, the plaintiffs failed in performing their duty to the deceased and cannot recover.</p> <p>Answer. “ If the plaintiffs permitted the boy to go on the railroad track, the law of this point is correctly stated, but we do not recollect any evidence to show such permission. It is true, the boy would have to cross the railroad in going to his aunt’s, but we cannot say to you that a boy of the age of this one would require his parents to be with him in crossing the railroad, or to have a protector for that purpose. We submit to you to say, under the evidence, whether they failed to perform their duty to the deceased boy. If they did, and their negligence contributed to his death, then they cannot recover.”</p> <p>2. Knowingly to allow a boy eight years of age to go on a railroad track, where trains of cars are continually passing and re-passing, is such negligence in his parents as will prevent them from recovering in an action brought by them for loss of service, and the uncontradicted testimony showing this negligence here, the verdict must be for the defendant.</p> <p>Answer. “ We answer this in the affirmative as a proposition of law, but do not say that the uncontradicted testimony establishes the fact as stated ; you will determine the facts involved in this point.”</p> <p>3. The fact that the boy was killed where he was, is presumptive evidence that he was unprotected and exposed by his protectors; and as their negligence contributed to his death, they cannot recover for loss of service.</p> <p>'Answer. “We have already said that if the negligence of plaintiffs contributed to the death of the boy, they cannot recover, but we cannot say that he was ‘ unprotected and exposed by his parents,’ or that the fact that he was killed where he was, on the railroad, was presumptive evidence that he was, in the eye of the law, unprotected and exposed by his protectors, so as to attribute to them that negligence which would defeat a recovery in this action. And we also refer you to the answer to the first point of the defendant, and to the general charge, for the qualification of this point.”</p> <p>4. It is the duty of parents at all times to shield their children from danger, and this duty is the greater where the danger and risk are imminent. The uncontroverted proof here being that the parents of the deceased worked and lived close to the railroad tracks, and knew of the running of the trains every few minutes, and of the running time of the mail train west, the plaintiffs, by their own fault, contributed to the accident by which their child was killed, and cannot recover.</p> <p>“We answer the proposition of law in this point in the affirmative, and refer to you the question of fact, whether the plaintiffs contributed to the accident by which their child was killed.”</p> <p>5. The law determines precisely the extent of parental duty. Its standard is not a shifting one; and as there has been no performance of it at all in this case, the verdict must be for the defendant.</p> <p>Answer. “ We cannot say there was no performance of parental duty in this case; and repeat, as we have already said, that whether there was contributory negligence on the part of the plaintiffs is, under all the evidence in this case, for the jury. We decline to say that your verdict must be for the defendant.”</p> <p>6. The defendant has the lawful right to the unobstructed and exclusive use of its tracks, except at public crossings; and if persons go upon the tracks at other places, they go where they have no lawful right to be, and if accidents ensue therefrom, the railroad company is not responsible.</p> <p>“ We answer this point in the affirmative.”</p> <p>7. If the deceased came upon the railroad track in front of and so near the running engine, that no efforts could be made by those in charge of the train sufficient to prevent the accident, there can be no recovery. There being no question here as to these facts, the verdict must be for the defendant.</p> <p>“We answer this point in the affirmative, unless you find that defendant was guilty of negligence in running its train; and if you so find, then there may be a recovery, unless you determine, under the instructions already given, that there was such contributory negligence as to defeat the recovery.”</p> <p>9. Upon the whole evidence of this cause the law of the case is with the defendant, and the court is requested to give binding instructions to the jury, that the plaintiffs cannot recover.</p> <p>Answer. “ We decline to withdraw this case from the jury.”</p> <p>The court charged: * * * “ The question naturally arises, is the defendant liable by reason of the negligence of its agents in running this train on the day this boy was killed? Was it owing to the negligence of defendant that he was killed ? And here I withdraw from your consideration all the testimony offered, on the part of the plaintiffs, to prove that the public were accustomed to use the track, at this point and in this neighborhood, as a passage way, by sufferance of the Pennsylvania Railroad Company. This testimony you must discard entirely from your minds, in the consideration of the evidence. It did not establish the fact proposed in the offer. The Pennsylvania Railroad Company is just as much entitled to the free and uninterrupted enjoyment of its track at this particular place, as at any other along the entire line of its road. It would be cruel and wicked to expose the men, women and children of that neighborhood to the dangers of trespassing upon this railroad track, upon the groundless supposition that they had acquired a right of way or a right so to use the track, by the sufferance of the defendant; ‘ and it would be unjust and positively dishonest to hold the company responsible for injury to persons who knowingly trespass upon the track, and take the risk and consequences upon themselves.</p> <p>“ This collision happened within the limits of the city of Harrisburg, near the Lochiel Iron-works. On the part of the plaintiffs, it is alleged that the defendant’s train was running at the rate of about twenty-five miles; that it was an unusual rate of speed, reckless and dangerous to the lives of citizens living in this part of the city. The defendant answers, and attempts to prove, that the train was running at its usual rate of speed, was on a good track, with the best brake in use, and was in perfect order, and everything done that could be done to save the life of the boy. Mere there is a discrepancy in the testimony as to the distance the boy was from the engine and the place where he first stepped on the track — whether at the crossing, or further up, opposite the mill. Mow this was is for you. Was the train running at a safe■ and prudent rate of speed f Was everything done that could be done by defendant’s agents under the circumstances ? Or was the rate at which the train was approaching and running, dangerous and re,ckless? We think, and perhaps you will have no difficulty in concluding, that when the boy was seen upon the track, everything possible was done to save him. Then you have to determine whether there was negligence or want of ordinary care in running the train, taking into consideration the fact, that it was along a part of the road within the city limits, which was, to some extent at least, occupied by manufactories and dwelling houses ; the curve around which the train came, and the distance of the place where the accident occurred from the curve. And in this connection I call your attention to the fact, that the engineer swears that he whistled before reaching the curve, and let off steam, in which he is corroborated by the fireman on the same train.</p> <p>“ We instruct you, that the locus in quo — the place where the hoy was killed — was not within the provisions of the ordinance of the city of Harrisburg, limiting the running of trains within the city limits to seven miles an hour. * * * This ordinance was passed in 1862. The city limits were extended by the Act of 1868, but this Act did not extend the city ordinances over the new territory taken in. The Lochiel Iron-works were not within the city limits when the said ordinance was passed. It is then contended, that the Act of 1869 did extend the city ordinance over this place; but we say to you, that it had not this effect, and that act was unconstitutional and void, as we shall hereafter say more fully in answer to a point submitted by the defendant. You must therefore, in your investigation, consider the evidence as if no such ordinance existed. The ordinance referred to is withdrawn from your consideration.</p> <p>“ Greater danger demands higher vigilance, and when it is said that negligence is the absence of ordinary care, it must be understood that ordinary care depends very much upon the circumstances of each particular case. Certainly, what might be ordinary care in running a train in an uninhabited country, might be gross negligence in running the same train, in the same way and at the same speed, through the streets of a town or city. If you find that the defendant’s train was running at the usual rate of speed, and not at a reckless and dangerous rate, but with proper care and caution,- upon a good track, with the best brake then known, and with a due regard — and by this I mean, with that regard that a prudent man would have — for the protection of human life under the circumstances of this case; then, we say to you, that the plaintiffs cannot recover, and your verdict should be for the defendant.</p> <p>“ But should you find that the defendant was guilty of negligence in the running of this train, you have another question to determine — that of contributory negligence. Were the plaintiffs guilty or chargeable with contributory negligence in permitting their son, a boy of eight or nine years of age — the evidence shows that he was about eight years and six months old when killed — to go out in this neighborhood without a protector, or in sending him on an errand which required him to cross the railroad track of defendant, without having a care-taker with him ? The evidence is that he was a healthy, intelligent boy. Was this such a dangerous place, that it was unsafe for a boy of this character to be absent from the reach of his parents or some care-taker? Are the parents chargeable with negligence in regard to their son, because the mother sent him upon this errand ? You will observe that there is no evidence that she directed him to go up to his aunt’s by the short cut upon the railroad track. It is very clear, he could have gone to his aunt’s without going upon this track, except to cross it.</p> <p> “ But further, was this boy guilty of negligence in walking up along the track of this road, or was he without that judgment and discretion by reason of his tender years, which would charge one of more^mature years with negligence ¶ This child is to be held responsible for that degree of negligence only which would be attributable to one of its years. </p> <p>“ This question of contributory negligence, as indeed frequently questions of negligence are, is a mixed question of law and fact, and is to be decided by the court when the facts are undisputed or conclusively proved; but not to be withdrawn from the jury when the facts are disputed or the evidence conflicting. The rule of law in regard to an adult, differs from that of an infant, or one of more tender years. The degree of discretion in the case of an infant, depends on his age and knowledge. Of a child of three years of age, less caution would be required than of one of seven, and a child of seven less than one of still an older age. The caution required is according to the maturity and capacity of the child, and this is to be determined in each case by the circumstances of that case. Bid this boy exercise that ordinary care that is required of one of his age ? Was he crossing the railroad track at the usual crossing and eart road, or was he walking up along the track — on the track where a large number of trains were running daily, passing each other at times, going east and west ? Bor we say to you, that if this boy was walking on the track of this road, taking it as a short cut to his aunt’s, he was where he had no right to be ; and it matters not that many others had done the same ; this did not justify this boy, nor could it justify the father and mother in using this track as a foot-way; and if the boy in so doing had sufficient judgment and discretion to know the danger he was running, and did not exercise the ordinary care that one of his age and maturity should, he was guilty of such negligence, concurring to an accident, as would prevent him from recovering against the company, because he was a wrong-doer — a trespasser — and did not guard against the injury as he might have done; and if he could not recover, under the same conditions, if the accident resulted in his death, the plaintiffs cannot recover; for his negligence — the negligence of the son, the servant, the agent — is imputable to the plaintiffs themselves, when they ask to recover damages for an injury to their son, which was occasioned by an accident to which his own negligence contributed.</p> <p>“ If the boy was old enough to go to school in the neighborhood, to be sent an errand requiring him to cross the railroad track, had he sufficient judgment and discretion to know the danger of walking upon this railroad track ? If he had this judgment and discretion, did he exercise that ordinary care that the law exacts of him ? Did he know that he incurred the risk of trains passing over this track he was walking upon ? These questions are for you; as you find the facts, the law determines the rights of the parties. If the boy had this judgment and discretion, and did not exercise it, he was guilty of such negligence and want of ordinary care in going upon and along defendant’s railroad track, as would prevent the plaintiffs from recovering in this action. * * *</p> <p>“Was the defendant guilty of negligence in running its train that caused the death of Edmund Lewis ? If it was not, your verdict should be for the defendant; if it was, were the plaintiffs guilty of contributory negligence in permitting the boy to be out without a protector, or in sending him an errand which required him to cross the railroad track ? And here I may say to you that I recollect no evidence to justify you in finding plaintiffs guilty of contributory negligence, except in permitting him to be out without a protector, and in sending him to his aunt’s, which required him to cross the railroad track ; and this you will consider in connection with his age and maturity, and the dangerous locality, as we have already instructed you. Or, had the boy sufficient judgment and discretion to know the risk he Avas running, and did not use the ordinary care the law requires of one of his age and maturity, to avoid the danger he was exposed to under all the circumstances of this ease ? If you find that there was negligence in the boy, under our instructions, then the plaintiffs cannot recover.”</p> <p>The verdict was for the plaintiffs for $1000.</p> <p>The defendants took a writ of error.</p> <p>The sixth assignment of error was, that the court erred in submitting the case to the jury after answering defendants’ sixth point in the affirmative.</p> <p>The ninth assignment of error was that “ the court erred in submitting the case of the plaintiffs, both in the general charge and answers to the points, as if. the action was brought by the boy instead of by the plaintiffs.”</p> <p>The other assignments were the answers to the defendants’ points and the parts of the charge in italics.</p>

<p>1. In an action on a note for $5000 the plaintiff gave in evidence an agreement by which defendant, his partner in a railroad contract, purchased his interest in' the firm, $5000 of the consideration to bo paid in forty days; plaintiff testified that the note was for that $5000. Held, that the defendant could not introduce his defence on cross-examination, but under the Act of April 15th 1869, sect. 2, the plaintiff could have been examined as on cross-examination in the defence in chief.</p> <p>2. By the agreement dated in July the defendant bound himself to indemnify plaintiff from all losses, &c., by reason of engagements of the partnership, and to fulfil all its engagements. In October plaintiff, by an unsealed writing, agreed “.to withdraw the note,” if defendant could show “he did not make any money out of the July estimate.” Held, that evidence that suits had been brought and threatened against the firm, that defendant had undertaken to settle them, &c., and surrender the contract to the company, and that this was done in pursuance of an arrangement of which the October paper was a part, was inadmissible; the matters offered being the same stipulated in the July agreement, and were therefore no consideration for the October agreement.</p> <p>3. It not appearing that the October agreement was made on any consideration, evidence that nothing was “ made out of the July estimate” was incompetent.</p> <p>4. Evidence for defendant was admissible that on October 3d a new agreement was made by which plaintiff agreed to release defendant from the note, in consideration of which defendant agreed to release and did release to the railroad company his interest in the railroad contract.</p> <p>5. Extrinsic verbal evidence is admissible to prove a new agreement upon a new consideration, whether a substitute for the old or in addition to it.</p>

<p>Error to the Court of Common Pleas of Blair county: Of May Term 1875, No. 66.</p> <p>This was an action of assumpsit, brought to the July Term 1873 of the court below, by Josiah M. Christy against The Bell’s Gap Railroad Company.</p> <p>The suit was brought to recover money expended by plaintiff in procuring the charter of the defendants, in payment of surveyors, &c., in making explorations and running the line of their road, &c., and also for his own services in the same matter; the whole occurred before the corporation came into existence, but plaintiff claimed that the defendants having accepted the results of his work, &c., they became liable to pay him.</p> <p>The company was incorporated by virtue of the Act of May 11th 1871, Pamph. L. 737. This act appointed commissioners— amongst whom were John Brotherline and the plaintiff — to receive subscriptions and organize under the name of The Bell’s Gap Railroad Company, to make a railroad of a gauge not exceeding three feet nine and a quarter inches, from the Pennsylvania Railroad, at Bell’s Mills Station, to a point on the top of the mountain near Tub Spring, on a route recently surveyed by G. W. Dorner, thence to a point on Clearfield creek, near “Fallen Timber,” not to exceed twenty miles in length, and from Tub Spring to Galitzen; the capital to be $100,000, in shares of $50 each.</p> <p>By a supplement of March 29th 1872, Pamph. L. 700, the company were authorized to extend their road over the mountain at Bell’s coal bank, “instead of a route recently surveyed and laid out by G. W. Dorner.” Inconsistent provisions in the original act were repealed.</p> <p>The case was tried February 5th 1874, before Dean, P. J.</p> <p>John Brotherline testified that about June 1870 the plaintiff and himself, upon consultation, determined upon an effort to construct a road up Bell’s Gap; they got out handbills for the call of a meeting for the purpose, to be held at the St. Charles Hotel, Altoona, on the 2d of July 1870. A meeting was accordingly held, at which the plaintiff and witness were present; the plaintiff was chosen president of the meeting; one Lytle was appointed engineer to ascertain the practicability of a route, and the plaintiff' was directed to attend to the matter, and have the survey made; the meeting was to organize a company in view of obtaining a charter; Lytle reported favorably of the route; witness prepared a bill; sent it to the legislature; it was passed in May 1871; witness and plaintiff gave notice of a meeting for the purpose of organizing the company ; a meeting was called also by other commissioners, to be held previously to the time fixed by witness ; it was held at Mr. Neff’s office in Altoona, and all the stock was taken there, and the company (defendants) organized; they commenced shortly afterwards, and built the road; the meeting called by witness and plaintiff never was held.</p> <p>On cross-examination witness said:</p> <p>The- bill which he prepared authorized the company to extend the road to Erie ; being informed that the bill could not be passed in that shape, he prepared a second bill, by which the road should go to Tub Spring, Fallen Timber and Galitzen, and not to exceed twenty miles in length ; this was passed. The first bill proposed a broad gauge road; there were also changes made in the commissioners by the second bill; witness and' Christy could not get the law passed to suit their wishes.</p> <p>Plaintiff testified as to the preliminary explorations, &c.; that Mr. Lytle’s services were discontinued and Mr. Dorner was employed as engineer; witness then stated the routes explored by Mr. Dorner; that the surveying party was under plaintiff'’s charge; he was with them during the time they were making the survey, except a few days; paid most of the expenses, &e. A final location was made by Dorner, and a regular profile was made, showing that the difficulties of ascending the mountain could be overcome; there were other locations made afterwards, and the first locations were necessary to determine the propriety of the latter. Witness went frequently to Harrisburg about the charter, and incurred expenses there; also to New York to procure funds to make the road.</p> <p>On cross-examination, he said that individuals, whom he named, at different times requested him to get up a company through Bell’s Gap, to get to their timber; that witness expected to be paid for his services; that at the meeting at Altoona on the 2d of July 1870, a board of directors was formed who authorized witness to go to New York, Washington and other cities to raise funds; when first making the survey the purpose was to get a road from Bell’s Mills to Erie, and a bill for that purpose was the one he wished passed; his idea was that he could make money out of the road as a corporator, to hold a position in the company which would pay him; individuals whom he named and who were interested on the road told him they would see him remunerated for his services; he expected to be remunerated by the company by a salary for his services; the road was to be a broad gauge road.</p> <p>Another witness testified that the company represented by the meeting of July 2d 1870, so far as they were there, two or three at, a time, authorized plaintiff to go on with the business; it was the calculation to pay him, but nothing was said as to how he was to be paid. There was other evidence of similar character as to plantiff’s services, and that Dorner’s map was used by defendants.</p> <p>Defendants gave evidence that the bill first sent to the legislature was for a broad gauge road from Bell’s Mills to Erie; the impression at Harrisburg being that the road was in the interest of a New York corporation, there were objections to its being reported, and it was then ascertained that the bill was for a different purpose from that which the parties in the vicinity of Bell’s Mills desired; the bill was then modified and was passed in the form before given; plaintiff did not make any efforts to get .the last-bill through; the termini in the original bill were Bell’s Mills and Lake Erie. The meeting was held on the 18th of May 1871; the plaintiff had notice of it; a committee was appointed to open books for subscription to the stock at Mr. Neff’s office, June 18th, at 1 o’clock; the meeting was advertised; the books were then opened and all the stock was subscribed. The road was made on the line mentioned in the supplement, not that in the original charter; Dorner’s survey was not used; the object of the original proprietors of the road was to reach Bell’s coal lands; the survey for the defendants was made by Mr. Ramsey. The stock was subscribed to a great extent by persons in the neighborhood of Bell’s Mills. Dorner’s map went into the hands of the defendants’ engineer; none of the line of the constructed road was laid on Dorner’s line; but his map was of service in the explorations. There was evidence also that the promoters of defendants’ road never employed the plaintiff.</p> <p>The defendants’ third and fourth points, with their answers, were as follows :—</p> <p>3. If Christy was not employed by the company as a company nor by any one on behalf of - the company, or by any corporator or authorized agent of the corporation, but was employed, if at all, by individuals, his remedy, if he have any, is against such individuals, and not against the defendants.</p> <p>Answer. “We decline to instruct you as requested. Plaintiff claims he was one of those engaged in the inception of the enterprise, who, having in view the chartering of a company to build this road, made preliminary surveys to ascertain whether it was practicable to build a road at that point; that such surveys were necessary, and that in and about them he performed onerous duties that the others did not share; that he did so in expectation of compensation, upon a promise of those or a majority of those acting with him, that he should be paid by the company thereafter to be organized ; that when this company was organized it accepted and enjoyed the results of his work. If the facts be as plaintiff claims, he can recover from these defendants.”</p> <p>4. The railroad for which Christy had the survey made was a broad gauge road with different termini, being from Bell’s Mills to Lake Erie, being an entirely different route from that on which the Bell’s Gap railroad is laid out and constructed, and is no benefit to defendants, and therefore plaintiff cannot recover.</p> <p>Answer. “ This point assumes facts here disputed, which we have left for your determination, with proper instructions in our general charge, and for that reason we decline to affirm it.”</p> <p>The verdict was for the plaintiff for $848.70.</p> <p>The defendants removed the record to the Supreme Court by writ of error. They assigned a number of errors to the charge and to the answers to the defendants’ points. The third and fourth errors were the answers to the defendants’ third and fourth points.</p>

<p>Error to the Court of Common Pleas of Centre county: Of May Term 1875, No. 9.</p> <p>This was a scire facias, issued February 20th 1871, by John Jones against the Tyrone and Clearfield Railroad Company, with notice to the Tyrone and Clearfield Railway Company, claiming to own the real estate and franchises late of said defendants, and also with notice to the Pennsylvania. Railroad Company, claiming to hold and occupy the same by lease or otherwise. The writ was served on the terre-tenants, but not on the defendants.</p> <p>The writ recited, that on the 26th of January 1870, the plaintiff had recovered against the defendants a judgment for $3828.75, and commanded the sheriff to “ make known to the aforesaid Tyrone and Clearfield Railroad Company, with notice to the Tyrone and Clearfield Railway Company, claiming to own the real estate and franchises of the said defendant, and also with notice to the Pennsylvania Railroad Company, claiming to hold and occupy the same by lease or otherwise, that they be and appear, &c., * * * to show if anything for themselves they know or have to say, why the judgment aforesaid ought not to be recovered and the lien thereof continued, and why the aforesaid plaintiff ought not to have execution against them of said debt and damages aforesaid ?” * * * At the return of the writ the terre-tenants moved that the writ be quashed:—</p> <p>1. Because it was illegal and unauthorized against them.</p> <p>2. Because the writ was irregular and insensible, and did not make known to the parties served the facts required by law to be distinctly set forth in the writ.</p> <p>3. Because the writ guare ex. non is not proper under the Acts of Assembly, &c.</p> <p>The court denied the motion to quash the writ.</p> <p>The terre-tenants pleaded specially:—</p> <p>1. That at the time of issuing the scire facias, or before or since, they did not own, and had not in their possession, any real estate, &c., upon which the judgment recited in the scire facias was a lien.</p> <p>2. That on the 26th of January 1870, when the judgment on which the scire facias was issued was recovered,- there was no corporation in existence under the name of the Tyrone and Clearfield Railroad Company, against which the judgment was entered; that in pursuance of law that company had, on the 12th of May 1859, mortgaged all their property, &c., to J. Edgar Thomson, trustee, who, by power under the mortgage, sold out on the 11th of March 1867, and conveyed the Tyrone and Clearfield Railroad, and all the real estate, &c., and franchises of the company, to George B. Roberts and others; and that by reason of this sale and conveyance, the Tyrone and Clearfield Railroad Company ceased to exist as a corporation.</p> <p>3. Made the same averments as in the 2d, and further, that on the 1st of April 1867, Roberts and others, the purchasers, conveyed the railroad, and all the property and franchises, to the Tyrone and Clearfield Railway Company, a corporation of Pennsylvania.</p> <p>The case was tried April 30th 1872, before Mayer, P. J.</p> <p>The plaintiff gave in evidence the record in an action, Jones v. Clearfield Railroad Co., brought to April Term 1860. The cause of action, as shown by that record, was work done by plaintiff as a contractor in the construction of the road of the defendants; judgment was recovered against the defendants on the 26th of January 1870 for $3928.70 ; this is the judgment on which this scire facias is issued. They then gave in evidence the mortgage and the sales and conveyances set out in the special pleas, together with the several Acts of Assembly relating to the incorporation of the companies, authorizing the borrowing of money, &c.</p> <p>The defendants closed.</p> <p>The court charged that under the Acts of 21st of January 1843, sect. 1, Pamph. L. 368; April 4th 1862, sect. 1, Pamph. L. 235, 1 Br. Purd. 90, 91, pi. 1, 6, the plaintiff had a lien that was superior to the mortgage under which the railroad was sold, and instructed the jury to find for the.plaintiff against the Tyrone and Clearfield Railway Company only, as it did not appear that the Pennsylvania Railroad Company claimed to hold or own any of the real estate of the Tyrone and Clearfield Railroad Company.</p> <p>The verdict was for the plaintiff for $4460.08.</p> <p>The Act of 1843 made it unlawful “ for any company, incorporated by the laws of this Commonwealth, and empowered to construct, make and manage any railroad, while the debts and liabilities, or any part thereof, incurred by the said company to contractors, laborers and 'workmen, employed in the construction or repairs of said improvement, remain unpaid, to execute a general or partial assignment, conveyance, mortgage or other transfer of the real or personal estate of the said company, so as to defeat, postpone, endanger or delay their said creditors, without the written assent of the said creditors first had and obtained; and any such assignment, conveyance, mortgage or transfer shall be deemed fraudulent, null and void as against such contractors, laborers and workmen, creditors as aforesaid.” The Act of 1862, after reciting that corporations made assignments, &e., in contravention of the Act of 1843, enacted that whenever any corporation, subject to the provisions of that act, should “ divest themselves of their real or personal estate, contrary to the provisions of the said resolution, it shall and may he lawful for any contractor, laborer or workman, employed in the construction or repair of the improvements of said company, having obtained judgment against said company, to issue a scire facias upon said judgment, with notice to any person, or to any incorporated company claiming to hold or own said real or personal estate, to be served in the same manner as a summons upon the defendant, if it can be found in the county, and upon the person or the persons, or incorporated company claiming to hold or own such real estate; and if the defendant cannot be found, then upon the return of one nihil and service as aforesaid, on the person or persons, or company claiming to own as aforesaid, the case to proceed as in other cases of scire facias on judgment against terre tenants.”</p> <p>The railway company took a writ of error and assigned for error:—</p> <p>1. Not quashing the writ of scire facias.</p> <p>2. Deciding that the Act of April 4th 1862, authorized the issuing the writ of scire facias against the Tyrone and Clearfield Railway Company.</p> <p>3. Sustaining the judgment against the Tyrone and Clearfield Railroad Company, a corporation not then in existence.</p> <p>4-8. The charge of the court.</p>

<p>A firm dissolved in May, giving notice by publication and authorizing one to use the firm name as liquidating partner. In August, without the knowledge of his fellows, he drew notes payable to the firm, endorsed them with the firm name, had them discounted by bankers with whom the firm had never had dealings; the proceeds of the notes passed to the individual credit of the partner making them; there was evidence that the proceeds were applied to the firm debts. Hdd, that if the notes were bonst fide for liquidation and the proceeds applied to payment of firm debts, the other partners would be liable.</p>

<p>1. The defendant, during the week of court in which a ease was fixed for trial, moved for a view. Held, that application was nothin time.</p> <p>2. In an action for damages for diverting water the jury might add interest from the date of the damage.</p> <p>3. The defendant and plaintiff were owners of tanneries on opposite sides of the same stream, the defendant being the lower; the plaintiff was owner of land on both sides of the stream below both tanneries. The plaintiff had a dam from which he conducted the water to his tannery; the defendant made a dam below into which the surplus water over plaintiff’s dam flowed; from this dam the defendant, by a pipe conducted the water to his tannery, by which the plaintiff lost the use of the water required to carry the offal from his tannery. Held, that evidence of permanent injury to the market value of plaintiff’s tannery was inadmissible.</p> <p>4. The injury was not of such a character as to assume that it would be permanent and to assess damages accordingly.</p> <p>5. As a general rule successive actions may be brought so long as the obstruction is continued.</p> <p>6. After the bringing of the suit, the defendant removed the pipe which conducted the water from his dam. Held, in an action for the diversion, evidence by the plaintiff of this removal was irrelevant.</p>

<p>Error to the Court of Common Pleas of Huntingdon county: Of May Term 1875, No. 60.</p> <p>This was a scire facias sur mortgage, issued May 16th 1874, by Adam Heeter, A. L. Guss and J. F. Thompson, against Samuel L. Glasgow and Harriet N. Glasgow, his wife. The defendants pleaded payment, and Mrs. Glasgow pleaded beside, non est factum and coverture; she further pleaded, that she did not acknowledge said mortgage as required by the second section of the Act of February 28th 1770, and its supplements.</p> <p>The land covered by the mortgage was the property of Mrs. Glasgow ; it was dated and acknowledged June 4th 1872; was made by the defendants to the plaintiffs, and was to secure the payment of several notes of the husband to different persons, amounting in all to the sum of $3500, for which the plaintiffs were his sureties. The acknowledgment was taken by P. H. Bence, a justice of the peace, and the certificate was in the usual form; the part relating to the wife was as follows :—</p> <p>“ The said Harriet N., being of full age, and by me examined separate and apart from her said husband, and the contents of the foregoing indenture of mortgage being first made fully known to her, declared that she did voluntarily and of her own free will and accord seal, and as her act and deed, deliver the same without any coercion or compulsion of her said husband.”</p> <p>The case was tried November 17th 1874, before Dean, P. J.</p> <p>The plaintiffs gave the mortgage in evidence, and proved that they had paid the notes recited in it.</p> <p>The defendants gave evidence by Mrs. Glasgow, that prior to the execution of the mortgage Heeter informed her, in the presence of her husband, that he had been endorsing for her husband, and wished her to sign a paper securing him; she expressed an unwillingness to do so, and he told her it would never injure her in any way, &c.; she then consented. Some days afterwards her husband requested her to go before the justice and have the paper executed; they went; at the justice’s the husband produced the paper and both signed it. When the justice was about signing the certificate of acknowledgment, he said he had not read the paper, and did not know what it was, but supposed she did; she replied that she did — she had read it; the husband was present all the time; she was not asked whether she executed the paper voluntarily — that if she had been so asked she would have said “No.” The mortgage given in evidence was the paper, but at the time she read it it had no enumeration of notes in it; she did not know that' there was a mortgage on her property for a year afterwards ; she was not induced to sign by any threats or compulsion of her husband.</p> <p>The husband testified substantially as his wife had done, as to the occurrences at the justice’s office; also, that the clause about the notes was put in after she had executed it; that Heeter, plaintiff, had made the suggestion that he should do so.</p> <p>The plaintiffs, in rebuttal, gave evidence by P. H. Bence, the justice, that the husband executed the mortgage and left the room. He then asked Mrs. Glasgow if she knew the contents of the paper ; said it was his duty to make them known to her if she did not understand them. She said she was acquainted with them, and signed the paper; he asked her, if she did it of her own free will and accord, and wdthout any coercion on the part of her husband; she said that she did; the justice was a subscribing witness ; no persons but the parties and the subscribing witnesses were present at the justice’s; Laura Hampson, the other subscribing witness, testified substantially as the justice had done ; Heeter testified, contradicting Glasgow as to his suggesting that the mortgage'sbould be filled in by the insertion of the notes after it’s execution by Mrs. Glasgow.</p> <p>There was evidence by the defendants for the purpose of showing that Mrs. Glasgow had been deceived by Heeter and her husband into the execution of the mortgage; and evidence by the plaintiffs in contradiction of this.</p> <p>After referring to the testimony of Mrs. Glasgow and the justice, the court charged :—</p> <p>“ There is also some evidence of Mr. Glasgow and Laura Hampson on the same subject, but it does not differ materially from the ’evidence of these two witnesses, Mrs. Glasgow and Esquire Bence; and it does not seem from this evidence that the justice either read or otherwise made known to Mrs. Glasgow the contents of this instrument ; or, in other words, it seems clear from this evidence that he did not. He asked her whether she knew the contents, and she answered that she did; he having stated to her also at the time that it was his duty to make known the contents, and, substantially, this was all that occurred; she answered that she did, that she had read it; but that is the extent to which he made an effort to make known the contents to her. Was it sufficient ? Was it a substantial performance on his part of his duty as an officer, under such circumstances in view of the nature of the duty he was performing ?</p> <p>“ The object of the Act of Assembly plainly is- to place as a barrier for the protection of the married woman, between her and her husband, when he seeks against her will to alien or encumber her estate, the justice of the peace or judge who takes the acknowledgment. Eor this purpose the act prescribes a certain form of acknowledgment, and enjoins upon the officer that he shall certify certain duties plainly and imperatively. If the form be observed by the officer, she must have knowledge of the effect of her act to some extent, if she has the capacity to execute an instrument of this kind. If she has the intelligence which makes her competent to execute the instrument, she must, if the act be followed out, as it plainly indicates and enjoins, have knowledge.</p> <p>“ Again, there must have been no compulsion on the part of her husband, and she must so declare to the officer; and that she be not coerced by his presence to make a false declaration of her voluntary action, her examination must be separate from her husband.</p> <p>“It is sufficient, as has been argued, and authorities cited to the point, if there be a substantial compliance with the form prescribed in the Act of Assembly. This brings us to the question, and it is a question for the court: What is a substantial compliance ? It is urged by the plaintiffs’ counsel that the evidence here shows that she knew the contents, and that when she so, said to the justice that was sufficient, and a substantial compliance on his part when he certified the acknowledgment.</p> <p>“ Leaving out of view the dispute here on the evidence, the plaintiffs alleging that she knew the contents, and the defendants that she did not know, or had been deceived by her husband, one thing seems-undisputed, and that is that the justice assumed from her answers that she had knowledge, and considered himself relieved from the duty of reading it to her, or otherwise making the contents known to her. In so doing he failed to perform an essential act under such circumstances imposed upon him by law, one which the law considers necessary for her protection. If the mode followed in this case had been considered sufficient, the legislature could easily have said, when enacting this form: ‘ or said justice shall otherwise satisfy himself that the said wife otherwise had knowledge of the contents.’ But the act does not so read. It specifies that he shall read or otherwise make known the contents to her.</p> <p>“ Whatever may be the ruling in the case of innocent purchasers, in this ease we say that the plaintiffs in this issue, being the mortgagees, the parties to a defectively executed instrument, they are affected by its irregularities, or a substantial want of conformance to the statute.</p> <p>“ The uncontradicted evidence shows that the justice in this case neither read nor made known the contents to her, and you must so find. This was a substantial failure‘to conform to the requirements of the act, and your verdict therefore as to Harriet N. Glasgow must be for her, and as to Samuel L. Glasgow, as he does not defend, your verdict must be for the plaintiffs, for the amount named in the mortgage, with interest.” * * *</p> <p>The verdict was for the plaintiffs against S. L. Glasgow for $3914.82, and for Mrs. Glasgow, the other defendant.</p> <p>The plaintiffs took a writ of error, and, amongst others, assigned for error the charge of the court.</p>

<p>Error to the Court of Common Pleas of Blair county: Of May Term 1875, No. 79.</p> <p>This was an action of ejectment, brought February 17th 1874, by Joseph Casey, Cecilia D. Forsyth, Jacob Ziegler, John C. Heylman, Edward L. Bodin, and Forbes Holton, against the Allegheny Railroad and Coal Company. It was for a tract of land in Antis township, Blair county, formerly Huntingdon county, containing 433 acres 153 perches and allowance, warranted December 26th 1793, and surveyed in the name of Henry Boreland. The tract was one of 117, known as the “ Richardson surveys,” each tract containing the same quantity of land, the purchase-money of the whole having been paid to the Commonwealth by Judge James Wilson, August 18th 1794. Judge Wilson owned besides large quantities of land in Huntingdon and Northampton counties. Judge Wilson died intestate in August 1798, leaving two children, Bird Wilson and Mary Wilson, afterwards married to Paschal Hollingsworth; these were his only heirs. The Hollingsworths, husband and wife, died long since, leaving an only daughter, Emily Hollingsworth, to whom Bird Wilson, on the 6th of March 1858, conveyed all his right, title and interest in his father’s estate, for the consideration of $1. June 16th 1858, Miss Hollingsworth conveyed to Charles A. Snyder in fee 175 tracts in Blair, Cambria and Clearfield counties, each containing 433 acres 153 perches of land; amongst these tracts were the 117 Richardson surveys, including the tract in dispute; through Snyder this title was vested in the plaintiffs.</p> <p>On the 20th of August 1796, Judge Wilson made a deed to Benjamin R. Morgan, by which, in consideration of debts due by him to Morgan and Henry Lee, of Virginia, Wilson conveyed to Morgan all his estate in all the lands held by him in Northampton and Huntingdon counties, for the payment of debts mentioned in the deed; the deed also was in trust to re-convey certain portions of the land upon certain contingencies. Morgan, and his representatives after his death, conveyed the land to divers persons absolutely, and the title thus conveyed is vested in the defendants. The plaintiffs contended that the deed from Judge Wilson to Morgan was but a mortgage, and that as Morgan or his representatives never took any steps to foreclose it, nor took possession of the land, after so great a lapse of time, the debts were presumed to be paid, and the title re-vested in the successors of Wilson. The defendants contended that the deed conveyed the land in satisfaction of the debts; or if it were a mortgage, the land being wild, unseated land, the mortgagee by payment of taxes and other acts of ownership had such possession of it for more than twenty-one years, as barred the equity of redemption. The latter view was taken by the court below, and a verdict was rendered for the defendants.</p> <p>The case was tried, February 2d 1875, before Dean, P. J.</p> <p>The plaintiffs gave in evidence the facts in the foregoing statement, showing their title.</p> <p>Under objection and exception, the defendants gave in evidence the deed of August 20th 1796, from Wilson to Morgan, by which the grantor, “ for and in consideration as well of certain debts due and becoming due from the said James to Henry Lee, Esquire, of Westmoreland, in the state of Virginia, and the said Benjamin, as for ten pounds by the said Benjamin to the said James paid, the receipt, &c., * * * granted * * * unto-the said Benjamin R. Morgan, his heirs and assigns for ever, all the lands, tenements and hereditaments, rights, properties and demands of the said James, together with all his estate, right, title and interest of, in, to and out of all and every the lands held by or to which the said James has a'legal claim, within the counties of Northampton and Huntingdon, his estate at and contiguous to Wilsonville, containing about one hundred and fifty thousand acres, only excepted; to have and to hold the same to him. the said Benjamin, his heirs and assigns for ever, under the special trust, confidence following ; that is to say, he, the said Benjamin, shall within four months after. the said James shall have furnished to him the requisite papers, descriptions, drafts and evidences of title respecting the said lands, select therefrom such part as at a reasonable price to be agreed on between the said James and'Benjamin, will amount to double the value of the whole of the debts then existing from the said James to the said Henry and Benjamin, but if they cannot agree in a valuation of the said lands, then the same shall be estimated at such a price as shall have been fixed by the said Benjamin, provided that the said James shall, at any time within thirty days after being notified of the valuation made by the said Benjamin, be entitled to a reconveyance of all the lands hereby granted, on his paying and satisfying to the said Benjamin the whole amount of the debts then existing from him to the said Henry and Benjamin, and the expenses incurred by them in selecting and conveying the lands hereinbefore mentioned; but if the said James shall not pay the amount of the existing debts then due to the said Henry and Benjamin within the time above mentioned, then the said Benjamin shall reconvey to the said James all the said lands, excepting the quantity so as aforesaid selected, and shall in like manner reconvey to him within three months after patents shall have been obtained for the quantity so selected, such part thereof as he, the said Benjamin, may think fit, as at the said valuation shall remain after satisfying all the debts of the said James to the said Henry and Benjamin, and all the necessary expenses of making such selection and completing the title and conveyances respecting the same, he, the said James, at the same time executing such further deed, contract, or warranty as may by the said Benjamin be requested respecting the quantity so as aforesaid retained by him.</p> <p>“ I agree that such debts as are due or accruing from me to George K. Taylor, of Virginia, Esquire, not exceeding 50,000 dollars, be included in the within contract, posterior, however, to the right of General Lee and B. R. Morgan.</p> <p>“ 6th August 1796. James Wilson.”</p> <p>This deed was recorded in the office of the recorder of deeds of Huntingdon county, September 14th 1796.</p> <p>Also, under objection and exception — for the purpose of showing what lands Judge Wilson had in Blair county — the warrants and surveys of the “ Richardson surveys,” including the land in dispute ; each survey being 433 acres and 153 perches; the warrants being dated December 26th 1793, and the surveys November 4th 1794; also, applications, warrants and surveys for a number of other tracts of land, the warrants dated respectively at various times from February 1st 1794, till June 6th 1794, and being in twelve batches, viz.: 1. The Chambers, in Union and Cass townships, Huntingdon county. 2. The McNutt, in Juniata and Penn townships, same county. 3. The John McNutt, in Penn, Lincoln, Cass and Todd townships, same county. 4; Another John McNutt, in Morris township, same county, and Catharine and Tyrone townships, Blair county. 5. Another Chambers, in Penn township, Huntingdon county. 6. The Turner, in Barre and Jackson townships, Huntingdon county, and in Clearfield and Centre counties. 7. The Russell, in Barre, Jackson and Brady townships, Huntingdon county. 8. The Prough, in Porter, Walker, Penn and Hopewell townships, Huntingdon county, and South-eastern township, Blair county. 9. The Green, in West and Barre townships, Huntingdon county. 10. The Galbraith, in Shirley township, Huntingdon county. 11. Another Galbraith, in Tell and Cromwell townships, same county. 12. Other warrants in Shirley and Cromwell townships, same county; the purchase-money having been paid by Judge Wilson.</p> <p>Defendants gave in evidence a deed dated October 10th 1800, from Morgan to John Warder. It recited conveyance January 27th 1794, by Daniel Turner to Wilson, of forty-nine tracts, unlocated, in Huntingdon county, and the said tracts, except three, were duly returned ; the whole containing 19,071 acres and 11 perches. It further recited, that Wilson, on the 20th of August 1796, conveyed to Morgan, “his heirs and assigns forever, all the lands, &c., of him, the said (Wilson), with all his estate, right, &c., of all the lands held by or to which he, the said (Wilson) had a claim within the counties of Northampton and Huntingdon,” &c. It further recited, that the forty-six tracts were in pursuance of an agreement of Morgan, exposed to sale at public auction, the purchaser to receive such title as Morgan could give under Wilson’s conveyance, and sold them to Warder for $620, and for that consideration conveyed the tract to him.</p> <p>They gave in evidence deed dated September 24th 1834, Morgan to John Savage, reciting the conveyance of August 20th 1796, from Wilson to Morgan; and that “the,said lands, at a valuation made in pursuance of the provisions and conditions contained in the said indenture, have proved insufficient to satisfy the debts therein mentioned, and become absolutely and unconditionally vested in the said Benjamin in fee simple,” and for $4000 conveyed all Morgan’s estate, &c., in a number of tracts, specifying them by the names of warrantees, date of warrants and surveys, &c., to Savage. They gave in evidence also the two following papers received by J. S. Africa, the present owner of the Savage lands, with the title-papers of those lands when conveyed to him, viz.: one headed, “valuation of lands in Huntingdon county, Pennsylvania, purchased in the following lots and from persons whose names are subjoined, by Judge Wilson.” Then follow the names of the persons, being the “Richardson” and others before stated, with a valuation to each, aggregating $58,941.66, to which is appended:</p> <p>“ I acknowledge that I have received a copy of the above list and valuation for my father. Bird Wilson.</p> <p>March 21st 1797.”</p> <p>The other headed: “Division of lands between General Lee and Benjamin R. Morgan.” Then follow a statement of lands in Northampton county, and statement of lands in Huntingdon county, those in Huntingdon being three of the batches mentioned in the foregoing valuation, and at the valuations then fixed, the aggregate valuation was $46,041.83. To this was appended:</p> <p>“ March 6th 1798, a division nearly equal as conveniently could be effected having been made, and lots drawn to determine which part of certain lands conveyed by James Wilson, Esquire, to Benjamin R. Morgan, should be for his own use, and which for the use of General Henry Lee, the moiety included in the within list was drawn by me for the said Henry Lee. P. Butler,,</p> <p>Benjn. R. Morgan. ”</p> <p>It was endorsed: “ Lands drawn by lot by Pierce Butler, Esq., March 6th 1798, on behalf of General Lee, on a division made to enable Mr. Butler to pursue the general’s property separate from B. R. Morgan.</p> <p>“Mem. This was by consent of General Lee, but he and B. R. Morgan made division as to themselves afterwards.”</p> <p>They gave in evidence thirty-seven deeds from Morgan for lands formerly of Wilson, in Huntingdon county, to various persons, dated respectively from 1811 to 1839.</p> <p>They gave in evidence the will of Morgan, proved the 3d of December 1840, by which he authorized his executors to sell all his undevised real estate. He appointed Lewis Wain, Coleman Fisher and William Rawle, his executors.</p> <p>The defendants gave in evidence deeds from the executors of Morgan to various persons for tracts of land in Huntingdon county.</p> <p>John Kratzer testified that he took possession of some of the tracts, amongst others that in dispute, about the year 1830, opened a coal-bank, erected saw-mills, cut timber and made lumber on them, before he knew who owned them, and afterwards purchased them and twenty-nine other tracts from the attorney in fact of the executors of Morgan by articles of agreement; he paid taxes on part of them; while in possession of them no one on behalf of Judge Wilson made any claim on him for them ; the interest of the witness was sold by the sheriff to William Lloyd and others, and a deed made by the executors of Morgan about 1846 to them ; they in 1853 conveyed the lands to the defendants.</p> <p>They gave in evidence a deed, January 28th 1854, for sixteen tracts of the “ Richardson ” land from the executors of Morgan to John Cresswell, Jr., and conveyance by him to defendants, May 20th 1854. They gave evidence that Thomas Jackson was agent of Morgan and his executors from 1838 up to about 1853; he had the land surveyed, and took general care of them; after Jackson’s death his son took charge of them, settled with the executors of Morgan for the proceeds of sales made by his father, and paid them; during all the time no claim was made on behalf of the heirs of Wilson. They gave evidence that buildings for ironworks were put up on the Savage purchase long before 1847, and an agent of Savage was living on them; J. S. Africa afterwards became owner of these lands; no claim was ever made on him by the Wilson heirs.</p> <p>There was evidence that the trustees of the Savage estate had charge of his land in Huntingdon county from 1842 to 1858 ; that they went to see Dr. Bird Wilson, son of Judge Wilson, in 1852, to ascertain if he had any claim as heir of Judge Wilson to any of the lands mentioned in Judge Wilson’s deed to Morgan, and if so to get him to release his claim; Dr. Wilson said he had no claim to transfer; he considered the deed a perfect transfer of the property; his father had always considered it so. They gave in evidence the account of the executors of Morgan, showing payments by Jackson to them for sales of “mountain land near Hollidaysburg, for 107 tracts, to which B. R. Morgan was supposed to have a title,” &c.</p> <p>They gave in evidence charges in the “ Land Ledgers of Huntingdon county,” showing entries headed :—</p> <p>“ Dr. Benjamin R. Morgan, Esq., of Philadelphia.</p> <p>“ The following tracts, formerly the property of Judge Wilson, now B. R. Morgan.”</p> <p>Also, a number of other tax records, showing assessments and payment of the taxes on these lands by Morgan and his representatives and successors from 1799.</p> <p>There was a large amount of evidence for the purpose of showing such acts of ownership by Morgan and his representatives as were consistent with the character of the land.</p> <p>The evidence showed that the last of these lands were sold by Morgan’s executors about 1854. On the 28th of January of that year the executors conveyed eight of the “ Richardson tracts” to Paul P. Keller. This deed recited that Morgan by his will directed his executors to sell the residue of his real estate, and that “ a certain large body of lands situate in Blair and Cambria and Clearfield counties, known as the ‘ Richardson surveys,’ and containing originally 117 tracts, form a part of the said residue.” The deed then specified the tracts by the warrantee names, and recited “ that they were a part of a large body of lands containing 117 tracts above mentioned, which became duly vested in the said Benjamin R. Morgan in his lifetime.”</p> <p>Keller, on the 9th of September of the same year, conveyed forty-five of these tracts, including that in dispute, to the defendants, for the consideration of $14,000. All the deeds were duly recorded about the time of their date.</p> <p>The plaintiffs in rebuttal gave evidence, that the Turner, MeNutt and Chambers surveys were patented in 1801,1805 and 1806 ; and that none of the Richardson surveys except three were patented up to June 30th 1874.</p> <p>Both parties submitted points, which were denied, except two by the plaintiffs, which asserted that the deed of August 20th 1796 was not an absolute conveyance, but a mortgage ; and one by defendants, which asserted that if the deed were a mortgage, the undisputed evidence showed that Morgan and his successors had been in possession, and the plaintiff’s right to redeem was lost by lapse of time.</p> <p>These three points were affirmed.</p> <p>The court charged, amongst other things, as follows :— * * *</p> <p>“ The right of the parties to the possession now will depend on the construction to be given to the instrument of 20th of August 1796, and the course of conduct of the parties to that instrument, or of their privies, with reference to the subject-matter of that contract. What is the character of this instrument ? If it be a conveyance in satisfaction of debts due from Wilson to Morgan and Lee, the debts, in the contemplation and in the understanding of the parties,, extinguished by this conveyance, the right to repurchase. at a future time reserved to Wilson in the deed would not make it a mortgage. Morgan’s title would have been absolute from the date of the instrument, and the right to the patent from the Commonwealth would follow. But this is not such a deed as is here claimed by the defendant. * * * There is nothing in the instrument, nothing in the circumstances surrounding the making of it, which indicates that Morgan wished to purchase lands, or that Wilson desired to sell to him lands. The parties were not treating about or contracting concerning any quantity .of lands, their location or the character or value of them either for present purposes or for future speculations. -They were treating of and contracting about debts due or becoming due from Wilson to Morgan and Lee; and the obvious intention of both of them was that this indebtedness should be secured by a pledge of Wilson’s lands until the indebtedness should be paid, either by a future conveyance of a portion of the land, or by payment of' the debt in. money by Wilson at a future period. * * * If this be the meaning, * * * it is a mortgage, and we so hold it to be a mortgage. * * * Morgan had a paper which gave him the use of the legal estate for the purpose of collecting his debt out of the land.</p> <p>“ If then, by the instrument itself, no estate in the land and no right to the possession passed to Morgan, has he now, or those claiming under him, after the lapse of almost eighty years, shown by the evidence anything which will warrant you in rendering a verdict sustaining the right of the defendants to the possession of the tract described in the writ? We hold that the parties to such an instrument as this, and those claiming under them, may, by their conduct, by unequivocal acts, for a long period of time, warrant you in presuming that the entire estate has become vested in the mortgagee, when by the instrument itself he had no estate in the land. * * *</p> <p>“From the year 1800 down every act of Morgan, and of those representing him, was in assertion of an absolute title to, and the right to the possession of, these lands. These acts were not few; they were not at distant or fitful intervals; they were not equivocal; they were numerous — the payment of taxes; the surveying of lands; the selling them time after time; guarding them from trespassers; employing agents to take charge of them. They were kept up, following year after year with unbroken continuity from 1800. They asserted with unmistakable significance a claim of absolute ownership, to the exclusion of every man and the right of every one. During all this time we look in vain for a single act of those on whom devolved the legal title, indicating a claim on their part or a denial of Morgan’s right.</p> <p>“ On the contrary, the evidence, if it be believed, on the part of one witness, concerning the declarations of the son of Judge Wilson, indicates that with a knowledge of his father’s right, not ignorant of the instrument, more than fifty years after it was made, he concurs in the .claim of Morgan, and disavows any claim on the part of himself or those who had a right to claim under his father.</p> <p>“ The plaintiffs here, on titles acquired from the descendants of Judge Wilson within the last five years, now do assert his rights as a mortgagor, and they ask us to say to you that nothing short of actual possession for a period of twenty-one years by the mortgagee will warrant the presumption that the equity of redemption on the part of Wilson has been released ; that these being unseated lands not in the actual possession of Morgan, he cannot be treated as in possession, but that the real possession was in the true owner during all this time, i. e., Wilson or those claiming under him by descent or otherwise, having his title. We do not so hold the law to be as applied to the facts in this case. If by actual possession is meant a personal residence upon the lands and personal occupation of them, we hold that that is not the law in Pennsylvania.</p> <p>“ On the contrary, we hold that these being unseated lands, not in the actual personal occupancy of anybody (nor could they be while unseated, unimproved, and wild), if the mortgagee, Morgan, and those under him from 1800 down, had such possession as the nature of the property claimed admitted of; if by continuous, notorious, and unequivocal acts he asserted his right to the actual possession, took just such possession as he could take, and held them as unseated lands, in the absence of any assertion of right on the part of Wilson or those claiming under him in denial of Morgan’s right, the law will presume, after this lapse of time, that the right to redeem has been relinquished by Wilson, the owner, and those claiming under him, and that the entire estate has become vested in the mortgagee. The evidence in the case is uncontradicted as to these facts, and we instruct you to render a verdict for the defendants.”</p> <p>The verdict was for the defendants.</p> <p>The plaintiffs took a writ of error. They assigned thirty-four errors:—</p> <p>1-12. Were to the rulings of the court on questions of evidence. 18-18. The charge of the court. 19-34. The answers to the points. The construction of the deed of 1796 being the question considered and decided by the Supreme Court, it is not necessary to particularize the errors assigned.</p>

127. This was an appeal of the Kittanning Coal Company to the Court of Common Pleas of Dauphin county, from the settlement of an account against them by the accounting officers of the Commonwealth; the appeal was filed September 17th 1874. The appellant is a corporation created under the laws of Pennsylvania, with privilege to mine and sell coal.

<p>Error to the Court of Common Pleas of Cumberland county: Of May Term 1875, No. 72.</p> <p>This was an action of assumpsit, brought October 13th 1873, by Fannie L. Graham against the First National Bank of Carlisle, to recover the value of four United States 5-20 bonds of $1000 each, which had been left by her with the bank for safe-keeping, and for which there was given to her a receipt as follows :—</p> <p>“ Carlisle, Pa., October 22d 1868.</p> <p>Miss F. L. Graham has left in this bank, for safe-keeping, four thousand dollars in U. S. 5-20 bonds of 1867, to be returned on the return of this receipt.</p> <p>Charles H. Hepburn, Cashier.”</p> <p>When the plaintiff demanded the bonds, they were not delivered to her, the officers of the bank informing her that they had been stolen, August 5th 1871, from the vault of the bank, with other valuables. The plaintiff, alleging that the bonds had been lost through the negligence of the defendant, brought this suit.</p> <p>The case was tried January 16th 1874 before Junkin, P. J.</p> <p>The plaintiff testified that she deposited the bonds with the bank for safe-keeping; she had also similarly deposited bonds on an association in Monmouth, Illinois. About three or four weeks after the robbery, she learned from a brother residing in Monmouth that the association there had been notified that the bonds had been stolen; she went to the bank to inquire and was informed by O. H. Hepburn, the cashier, that the Monmouth bonds had been recovered. She then asked about her United States bonds, and he told her they had been stolen, “ but I should say nothing about them, and keep quiet — that was their loss and not mine. Soon afterwards, not feeling satisfied, I went to the judge (S. Hepburn, Sr., who was the president); Í think Charles said to keep quiet, and in that way they might discover who took them ; when I saw the judge he assured me that I should not lose a cent— that they could afford to lose it and I could not, and said that I should not say anything about it; I saw him a number of times after that and he always assured me I should not lose it, but still gave me no security ; they, Charles and the judge, told me to come on and draw my interest.” She first knew of the loss in September 1871. They continued to credit her account with the interest on the bonds, the same as before the loss; the last credit was July 12th 1873.</p> <p>Plaintiff gave evidence that on August 5th 1871, S. Hepburn, Sr., S. Hepburn, Jr., J. G. Orr, C. H. Hepburn, and H. Hepburn, were directors. S. Hepburn, Sr., was president, C. H. Hepburn was cashier and J. G. Orr was teller. The stockholders were the same as the directors ; S. Hepburn, Sr., owned 460 shares of the stock, each of the others owned 10 shares.</p> <p>It was admitted that United States government bonds were received by the bank for safe-keeping, with the knowledge of the president, cashier and teller, and received without compensation ; that the bank collected the coupons without compensation; that they were received by the cashier, and that the coupons were sometimes paid to the owner in cash, and sometimes deposited to his credit; that coupons were sent by the bank to Philadelphia for collection, and were collected in the name of the bank, and then the bank either paid the owner the cash or credited his account; that these collections were made at the request of the owners of the bonds. There was no meeting of the directors for discount purposes from 8th February 1870 until 1st October 1873, •when the board met and resolved to close the bank.</p> <p>John G. Orr,- teller, testified for defendants : “ The bonds lost were kept in the safe inside the vault on an upper shelf in the safe inside the interior iron drawer, and money was kept in the department below the bonds, and these bonds were kept just as we kept the other money and valuables of the bank ; the first I knew of the disappearance of the bonds was on the afternoon of 5th August 1871; a short time before 3 o’clock I went down to the court-house to the election, and after being there half an hour, some one came in and told me that I was wanted up at the First National Bank ; I went up and found Charles Hepburn, the cashier, and Judge Hepburn, the president, there, and the cashier informed me that nearly all the money of the bank had been taken, and asked me if I knew anything about it; I said I did not, and then I went into the vault and found that nearly all the money that was in the safe was gone, except a few packages of $1 and $2 notes ; * * * I asked the cashier if he had looked to see whether the bonds were there ; he said not, and I then went into the vault and looked and found that the package of bonds and some other papers were gon j ; we then examined and found a large pocket-book was also gor e ; in this pocket-book were the bonds of the president, cashier ¡.nd teller, and some other papers ; there was no money in that. * ‘ * Judge Hepburn said it would be better not to say anything about it; it might cause a run on the bank.” * * *</p> <p>C. H. Hepburn, the cashier, testified that the bonds were left in the original envelope in which they came from Washington ; they were tied up in a bundle with other securities left for safekeeping by other persons; the bundle • was in a safe above the-place where they kept their money, all within an iron door within the safe ; the safe was a Lilly burglar-proof safe with combination lock ; the inside door had a combination lock. Witness then described the circumstances of thé discovery of the loss somewhat more at large than Orr, but corresponding in the main with his statement. The amount of money taken was about $3500. The Monmouth bonds and some other papers were recovered. Letters were written to the Assistant United States Treasurer at New York, about the robbery, on August 9th, and about the same time to the treasury department at Washington. Witness informed the plaintiff of the loss eight or ten days after it occurred; told her to feel perfectly easy about it and keep it quiet, so that they might be able to trace the bonds; that he and the president had talked the matter over, and they would individually pay every cent of them; that they would pay her interest as theretofore ; this was repeatedly said to her by him afterwards. Witness testified further as to the situation of their safe, &c., and generally as to circumstances tending to show the care exercised in custody of the bonds.</p> <p>Defendants gave evidence that the papers which were restored had been found on the 5th of August 1871, about 12 o’clock M., by a man quarrying stone near the railroad at Bridgeport, eighteen miles from Carlisle.</p> <p>In rebuttal the plaintiff gave evidence from other witnesses of the request of the officers of the bank to keep the robbery secret, and that at an informal meeting of the president, cashier and teller, they being also directors of the bank, it was determined to keep the matter secret, as it might be injurious to the bank.</p> <p>The plaintiff then offered to prove by Mrs. Trout, that she had a deposit of government bonds in this same bank for safe-keeping; that she drew the interest and premium on her bonds regularly until the bank closed, and that, although living just opposite the bank, she never knew or heard of the alleged disappearance. This to rebut the presumption that there never was any robbery, and to show that bonds remained in bank till its close, to be followed by proof of a similar character.</p> <p>This was objected to by the defendant, admitted by the court, and a bill of exceptions sealed.</p> <p>The witness testified : “ I had bonds in this bank, and received a receipt for them and drew interest up to July 1873; I only heard of the loss after the suspension; Charles said I should not lose.”</p> <p>F. S. Dinkle testified, under the same exception, that he had bonds deposited with the defendant; “I received all my money but $100 ; I did not hear of the loss of the bank until after the bank had closed.”</p> <p>The following are points of plaintiff with their answers :—</p> <p>1. If the jury believe that the plaintiff deposited the bonds for the value of which this suit is brought, with the defendant for safekeeping, and took the receipt of the cashier in evidence, for the same, the defendant was bound to exercise ordinary care, skill and diligence, to keep and return the same safely ; such care as men of ordinary prudence exercise in the care of their own property ; and if defendant did not use ordinary care to keep plaintiff’s bonds safely, but kept the same negligently, then it is liable for their loss,, and the plaintiff is entitled to recover their value.</p> <p>Answer. “ First point affirmed, and for the meaning of gross negligence, the jury is referred to the general charge.”</p> <p>3. If defendant was negligent, and did not exercise ordinary care, skill and caution to keep plaintiff's bonds safely, then it is liable for their value, no matter how negligent it may have been in taking care of its own property.</p> <p>Answer. “ Affirmed ; see general charge.”</p> <p>7. If the jury believe that the defendant endeavored studiously to conceal the loss of plaintiff’s bonds ; did not inform her of their loss, although living in the same town, for some weeks afterwards, and then enjoined silence upon her by stating she should lose nothing ; that it would be defendant’s loss, not plaintiff’s ; and made no attempt to discover the alleged thief, except by procuring its attorney to write to government officers in Washington and New York, and did not telegraph or write to any bankers or brokers in Pennsylvania; this is strong evidence' of negligence on the part of the bank, and proper to be taken into consideration by the jury on the question of negligence.</p> <p>Answer. “ This point is affirmed. We have fully instructed you on this branch of the case in the general charge.”</p> <p>The following are points of the defendant, with their answers :—</p> <p>2. The defendant being chartered under the Acts of Congress, and its objects, powers and duty being thereby defined, and no power being thereby given authorizing it to become a bailee or depositary of valuables, in the manner alleged by plaintiff, the act of the cashier in so receiving such valuables would not make the bank liable to the plaintiff, and she cannot recover.</p> <p>Answer. “We have already told you that the bank is liable only where these special deposits are received from time to time, with the knowledge of its directors. If they were so received in this case, the bank is liable, if gross negligence has been shown.”</p> <p>4. Even if the bank could legally become a bailee, as alleged by plaintiff, the proof being clear that no compensation' was paid for keeping it, and that it was taken and kept at the request of the plaintiff for her own convenience, the plaintiff cannot recover, unless she shows that the defendant was guilty of gross negligence ; and the test of good faith and want of gross negligence is: “ Did the bank keep the deposit with the same care and security as it did its own property?”</p> <p>Answer. “Affirmed; except that the deposit must be kept with the same care that an ordinarily prudent man would keep his own of like kind and value.”</p> <p>7. If the plaintiff, after being informed of the loss of the bonds, acquiesced in the silence of the officers of the bank as to the loss, and concurred therein, she is guilty of concurrent negligence, and cannot recover upon the ground that the bank did not give notice of the loss.</p> <p>Answer. “We cannot answer as requested. Her agreeing to keep silence is not concurrent negligence in the sense of that term. The effect of inducing her to keep silence cannot affect the questions on which the case turns. It is a question of gross negligence on the part of the bank, and she could do nothing by her agreement to maintain silence which could affect the question of gross negligence.”</p> <p>The court charged:—</p> <p>* * * “ No compensation was to be received for the care of this deposit by the bank. It was therefore a naked bailment without reward, and without any special undertaking, which, in the civil and common law, is called what this really was, depositum; the bailee will be answerable only for gross negligence, which is considered equivalent to a breach of faith, as every one who receives the goods of another in deposit impliedly stipulates that he will take some degree of care of 'them. The degree of care which is necessary to avoid the imputation of bad faith is measured by the carefulness which the depositary uses towards his own property of asimilar kind; so that the doctrine maybe regarded as well settled, upon authority and reason, that where one makes a simple deposit in which there is an accommodation to the party making it, and the advantage is to him alone, he shall be the loser, unless the person to whom he intrusted the deposit has shown bad faith, in exposing the goods to hazards to which an ordinarily prudent man would not expose his own; and only when it is shown that the bailee has kept the goods or deposit in such a manner as no ordinarily prudent man would keep his own, is he guilty of gross negligence, and only when this is shown is he guilty of such neglect as renders him liable for the value.</p> <p>“ \_G-ross negligence is the omission of those precautions which persons of common care and common prudence would naturally adopt, even though they might, in reference to their own goods, omit them ; so that the test of gross negligence is not simply: ‘ Did the bailee take as much care to preserve from loss the property bailed, as he did of his own ?’ for he might be grossly careless of his own; ‘ but did he take that kind of care which persons .of common care (customary care) do take of their own ?’]</p> <p>“ Good faith requires that the bailee should take reasonable care of the deposit, and what is reasonable care must materially depend upon the nature, value and quality of the thing, and the circumstances under which it is deposited, and upon the character and confidence and particular dealings of the parties. He is bound to exercise a degree of care proportioned to the nature and value of the article ; the danger of loss, and the temptations to theft; and if he take the same care of the goods bailed as he did or does of his owrq that will ordinarily repel the presumption of gross negligence. i,. The desire to preserve one’s own property from loss from any cause is, as a rule, so universal that the mind rests with satisfaction upon that evidencewhich shows the same care of the bailed property that the bailee took to save his own, unless it is shown that he was grossly negligent of both, and when this is done he is not excused, but held answerable. With these simple rules for your guidance, we will do what we can to aid you in their application to this case.”}* * *</p> <p>The court then recapitulated the evidence in the case and proceeded:—</p> <p>“ [The evidence offered to repel the alleged theft is the fact that Dinkle and Mrs. Trout, who had bonds in this bank, went there and drew their interest as before. Dinkle had $700 in bonds, and from time to time kept lifting them, by the bank paying him the cash for them — the same as if the bonds were still there ; but he saw no bonds — he was paid money. The explanation offered for this apparent inconsistency is this : That after the loss was detected the Messrs. Hepburn, on consultation, resolved to assume the loss, and keep it quiet, lest the bank would be run upon. Now does this account for what otherwise seems unaccountable, and explain why they continued to treat the bond-owners just as they had done before?] * * * [Banks would be somewhat embarrassed if it were held for law that they must not open their vaults to transact their own business, for fear some bond depositor, who pays nothing for the care of his property, might lose his bond. He must incur that risk or remove his bond into his own possession, and this is altogether reasonable.]</p> <p>“ Should you find that there was a larceny of the plaintiff’s bonds on that 5th day of August 1871, and that thus the bonds were lost, with no gross negligence on the part of the officers of the bank having the care of its deposits, this plaintiff should not recover; unless, however, that it is found that the plaintiff was prejudiced by the neglect of the bank to give her immediate notice of. the loss, as we will hereafter explain more fully.</p> <p>“ It is clear that the plaintiff’s bonds were kept in the inner iron box within the safe, which itself was within the vault in the same place, and under the same securities that the money and valuables of the bank were kept. More than this could not be expected with reason ; and more than this the plaintiff could not expect, as she paid nothing for the security, and the bank was not an insurer. [The bank was not bound, from the nature of the relation between it and the plaintiff, to resort to extraordinary measures to secure her bonds, but only to keep them with ordinary and customary care, as ordinarily careful persons keep the like kind of property.] * * * ' .</p> <p>“ [Should no gross negligence be found by you on the part of the defendant in caring for the plaintiff’s bonds, then you must look into the effect of the neglect on the part of the defendant to give this lady immediate notice of the loss.] The rule of law is, that where the bailee accounts for a loss, in a way not to implicate himself in a charge of negligence, this is a sufficient defence; unless the plaintiff proves negligence.</p> <p>“Now, what is the precise effect of the failure of the bailee to give the bailor notice of the loss ? [My first impression was that it might be treated as absolute proof of negligence; but, on careful reflection, it seems to me that this would be carrying the inference too far, and that reason requires that it should be limited to raising a presumption of negligencej which presumption may be repelled; but even when thus repelled and rebutted, it still remains a question for the jury to determine whether any injury resulted to the plaintiff from the neglect of the defendant to give her notice of the loss. If you are satisfied that the hank, from prudential motives, either from the honest belief that publicity would only diminish the chances of the recovery of the bonds, &c., or from the fear that there might be a panic among the depositors, or from both, and this resulted in no injury to this lady, by preventing her from adopting measures for their recovery, then we see nothing in the want of notice which would render the bank liable. If, however, there was a reasonable probability that her own efforts would have resulted to her advantage in the recovery of the bonds, and thus injury resulted to her, then the bank is liable and she should recover. Is it probable that she herself could have been more successful in her efforts in this direction than the bank ? This is an important inquiry, and if it is reasonably certain to your minds that this lady would have recovered the property had the loss been immediately made known to her, the neglect of the bank to give the notice would make the defendant liable; if, on the other hand, no such benefit would have been likely to result to her from such notice, we do not see that the failure to give it should per se render the bank liable; and it would be injustice to hold the latter to responsibility for that which, if given, would have been fruitless to the plaintiff.]</p> <p>[“And, furthermore, should you find that had the bank itself taken more efficient measures to advertise the loss, employing detectives, &c., and there was a reasonable probability that the loss would have been recovered, that should make them liable.”] * * *</p> <p>The verdict was for the plaintiff for $4790.</p> <p>The defendant took a writ of error, and assigned for error:—</p> <p>1. Admitting the evidence of Mrs. Trout and Dinkle.</p> <p>2-4. The answers to the plaintiff’s points.</p> <p>5, 6. The answers to the defendant’s 4th and 7th points.</p> <p>7 — 13. The parts of the charge in brackets.</p> <p>14. The charge as a whole tended to mislead the jury as to the law and its application to the facts in the case.</p> <p>15. The answer to the defendant’s 2d point.</p>

<p>Appeals from the Common Pleas of Lebanon county: No. 85 and 130, to May Term 1875.</p> <p>These were appeals from a decree dismissing a hill in equity, filed originally by William G. Freeman, administrator of Robert W. Coleman, against some of the decedent’s co-tenants in certain ore-banks and mine-hills, praying an account for the ore taken by them. The material facts, appearing by the pleadings in the case, were as follows:— J</p> <p>In 1785 Curtis Grubb, Robert Coleman and Peter Grubb owned Cornwall Furnace Estate, including the Cornwall “ Ore-Banks and Mine-Hills.”</p> <p>Peter Grubb died, leaving a will by which he devised all his real and personal estate to his two sons, then minors, Burd Grubb and Henry Bates Grubb.</p> <p>On May 6th 1786, an agreement was executed between Curtis Grubb, Robert Coleman and the executors of the will of Peter Grubb and guardians of said minor sons of Peter Grubb, Burd and Henry Bates Grubb, by which it was covenanted, inter alia, that the “ ore-banks belonging to Cornwall Furnace” should be divided into three equal parts, and two equal third parts should be assigned to Curtis Grubb and Robert Coleman, according to their several shares therein, and the other equal third part thereof should be assigned and allotted to Burd Grubb and Henry Bates Grubb, to be by them respectively held in common. It was further agreed that amicable actions should be instituted in the Court of Common Pleas of Lancaster county for the purpose of fully effecting the said agreement.</p> <p>On the 30th of August 1787, a further agreement was executed betwmen the same parties, by which the agreement of May 6th 1786 was modified so that the “ ore-banks belonging to Cornwall Furnace” should thereafter remain together and undivided as a tenancy in common. It was provided in said agreement “ that for this purpose an accurate survey shall be made of said ore-banks and mine-hills, if not already done.” This agreement was still further modified by a supplemental agreement bearing the same date, August 30th 1787, whereby, after reciting “that it may so happen that veins of ore may extend beyond the limits of the survey lately made by Thomas Clark,” it was agreed that the said Burd Grrubl), Henry Bates Grubb, and Robert Coleman, their heirs and assigns, should also have liberty and power to raise and carry away “ any ore that may be found to extend beyond the limits of said survey.”</p> <p>Under these agreements for partition, amicable actions were begun and the land divided, and tracts numbered' one and two on a plot then lately made by Thomas Clark, excepting thereout the draft of the ore-banks and mine-hills lately surveyed by Thomas Clark, and twelve other tracts, were awarded to Curtis Grubb and Robert Coleman.</p> <p>Robert C.oleman purchased part of the shares of his co-tenants, so that in 1825, when he died, he was seised of five undivided sixths of these ore-banks and mine-hills, and in severalty of the land surrounding them, out of which, in the prior partition, they had been excepted to be kept always as a tenancy in common. By his will he devised to his sons, William, James and Edward Coleman, the several furnaces and iron-works called Cornwall Furnace, of which tracts one and two, referred to in the partition of 1787, were a part, and out of which the ore-banks and mine-hills had been excepted from said partition. To his son Thomas Bird Coleman he devised Colebrook Furnace. He then devised as follows:—</p> <p>“ Item. I give, devise and bequeath to my dear sons, William Coleman, James Coleman, Edward Coleman, and Thomas Bird Coleman, and to their heirs and assigns for ever, as tenants in common, all the mines, ores, banks, and hills of mine or ore, of iron or other metals, base or precious, of every kind or sort whatsoever, that is to say, all my right, title, and interest of, in and to the same, although the same may be included within the bounds and limits of any of my lands hereinbefore devised to my said sons, or belonging to any of the iron-works, to them or any of them respectively devised, hereby meaning and expressly excepting the same out of any such previous devise, and intending to pass and expressly passing the same under this clause of my will, and no other.”</p> <p>In 1828, by purchase from their brothers, James Coleman and Thomas Bird Coleman became seised equally as tenants in common, in fee, of Cornwall Furnace and Elizabeth Furnace estates; and James Coleman became the owner of the undivided thirty ninety-sixth parts, and Thomas Bird Coleman of the undivided fifty ninety-sixth parts of all “ the mines, ores, banks, or hills of mine, or ore, of iron or other metals, base or precious, of any kind whatsoever,” devised by the last recited clause of their father’s will.</p> <p>In 1831 James Coleman died intestate, leaving five children, in whom his undivided interest in the said Cornwall ore-banks and mine-hills vested, subject to his widow’s right of dowmr. In the same year an action of partition was brought by Thomas Bird Coleman against the said children of his brother James, which resulted in the division of the estate they held in common, except the “ ore-banks and the mine-hills of the Cornwall estate, the same having been excepted and reserved out of the partition demanded, and still remaining a tenancy in common according to the respective rights of the parties in interest.” Under these proceedings in partition, Cornwall Furnace estate, which included tracts Nos. 1 and 2, before referred to, in which said ore-banks and mine-hills were situated, was allotted and assigned to.Thomas Bird Coleman. Thomas Bird Coleman died intestate in 1836, leaving six children, between whom partition was had in 1848, whereby all his interest in said Cornwall ore-banks and mine-hills became vested equally in his two sons, Robert W. and William Coleman. By partition between the heirs of James Coleman in 1849, his undivided thirty ninety-sixth parts of said Cornwall ore-banks and mine-hills became vested equally in his two sons, Robert and G. Dawson Coleman.</p> <p>In 1823 Henry Bates Grubb died intestate, and, by partition between his children in 1836, his share, sixteen undivided ninety-sixth parts of said Cornwall ore-banks and mine-hills became vested in his two sons, Edward B. and Clement B. Grubb.</p> <p>In June 1851, Robert W. Coleman filed a bill in equity in the Court of Common Pleas of Lebanon county against his co-tenants, praying an account of ores taken by them from the common property. Under this bill an account was had of the ore taken within the lines of the Clark survey: see Coleman’s Appeal, 12 P. F. Smith 252.</p> <p>On June 5th 1865, William G. Freeman, the administrator of Robert W. Coleman, deceased, filed a bill in equity, the original bill in the present suit, against the co-tenants of his decedent, alleging that said co-tenants held, together and undivided, as tenants in common, three ore-banks and iron ore-hills, known as the “ Cornwall Ore-Banks and Mine-Hills,” in the county of Lebanon, and describing the same by the courses and distances laid down in the draft to the survey of the Cornwall ore-banks and mine-hills, alleging that each of the said parties had mined and carried away ore from said tracts, and praying for an account.</p> <p>On the first day of December 1865, the plea and answer of G. Dawson Coleman, and also of Robert Coleman, were filed. Each in his plea pleaded that the premises particularly described in the bill did not constitute or compose the property known as and called the Cornwall Ore-Banks and Mine-Hills, but said Cornwall Ore-Banks and Mine-Hills included not only the tracts described in said bill, but also other deposits of ore both upon and under the surface of the earth extending beyond the limits of said tracts.</p> <p>In August 1867, replications were filed, the plaintiff Wm. Gr. Freeman having died in the meantime, and substitution of administrators de bonis non having been made.</p> <p>On June 3d 1872, application was made to file an amended bill, which was allowed on proof of notice. On November 25th 1872, an amendment to the amended bill was filed by consent.</p> <p>The amended bill differed from the original bill in setting forth with greater particularity the same deeds, partitions and records pleaded in the original bill, but therein pleaded by reference to the same, instead of being set forth as they were in the amended bill in many cases totidem verbis. It also contained two additional averments:—</p> <p>1. An averment setting forth the proceedings in a partition suit commenced in 1851, by Gr. Dawson Coleman; and,</p> <p>2. An averment setting forth the proceedings in equity commenced in the same year by Robert W. Coleman, for an account.</p> <p>In each of these suits the defendants Coleman, in their pleadings, therein described the common property in the same way that it was described in the original bill in the present suit. The prayer of the amended bill differed from the prayer of the original bill in being in the alternative, praying if the court should be of opinion that under the title set forth the tenancy in common was confined to the tracts particularly described in the bill, for an account of ore taken from said tracts; but if, on the other hand, the court should be of opinion that the tenancy in common was not confined to said tracts, praying for an account of the ores taken from without as well as from within said tracts.</p> <p>The amendment of November 25th 1872 to the amended bill consisted of a prayer that the same might be considered, if the court thought best, as a petition for a further account under the bill of 1851. On the 7th of February 1873, the demurrer, plea and answer of Robert Coleman were filed, and on March 26th 1873, the demurrer and answer of Gr. Dawson Coleman were filed. The chief grounds of demurrer were that the amended bill set forth a different cause of action from that set forth in the original bill, and did not aver that said cause of action accrued wdthin six years before the filing of said bill; that the complainants had split their cause of action ; that they denied a common title co-extensive with their claim for an account; that a court of equity could not decide the question of title upon which the extent of the claim for an account depended; and that the complainants could not make their claim in the alternative.</p> <p>The cause was argued on bill and demurrer on April 9th and May 6th 1874, before Pearson, P. J., and Henderson, J.</p> <p>The demurrer was sustained by the court, Pearson, P. J., delivering the following opinion as to the Statute of Limitations:—</p> <p>* * * “ We consider it now to be the well-settled principle and practice of courts of equity that advantage may be taken of the Statute of Limitations by demurrer, provided the lapse of time appears on the plaintiffs’ bill without any reason being set forth to show that it should not apply : Smith v. Fox, 6 Hare 386 ; lloare v. Peck, 6 Simons 51; 7 Paige’s Ch. R. 195; Id, 373; 4 Wash. C. C. R. 631; Story’s Eq. PL, sects. 484, 503; Cooper’s Eq.' Pl. 254, 255; Milford Eq. Pl. 272, 273; Fyson v. Pole, 3 You. & Col. 266.</p> <p>“ Does it appear on the face of the bill, as amended, that more than six years have elapsed since the cause of action accrued, and the right-to demand an account arose? It is set forth in the bill that Robert W. Coleman, the plaintiff, died on the 20th of December 1864, and letters of administration on his estate were issued to Col. Freeman on the 29th of the same month. The whole claim was for ore taken in the lifetime of Mr. Coleman, none could be made by his administrator for that taken after his death, as it is demanded by reason of their being tenants in common of the ore-banks and mine-hills, which are real estate, and would vest in his heirs-at-law on his death. The administrator offers to account for the ore taken by his intestate from the premises, which must have been in the lifetime of the latter. So that it sufficiently appears that it all occurred more than six years before the 3d of June 1872, when the amended bill was filed. Besides, that was more than six years after the filing of the original bill, and the answer thereto by Robert and George Dawson Coleman. It was well known and stated on the argument that after the 14th day of January 1864, the ore was dug and sold for the benefit of all, by an agent mutually appointed. It is said, however, that by the amendment the claim comes in as of the time of filing the original bill — that it is tacked to it. The matter introduced into the amendment is new, not contained in the original bill, but much changed and enlarged. In such cases the matter brought into the hill by amendment will not have relation to the time of filing the original, but the suit will be considered as pending so far only from the time of the amendment: Story’s Eq. PL, sect. 904; 2 Atkyns 218. New matter or new parties cannot be brought in by way of amendment, and thus avoid the effect of the statute as to either: 6 Peters 61-64; 11 Cl. & Fin. 556, in House of Lords.</p> <p>“ An amendment cannot be allowed where it brings in a new cause of action, otherwise barred. This was decided at law, in Shock v. M’Chesney, 4 Yeates 510-11. See to the same effect Farm. & Mech. Bank v. Israel, 6 S. & R. 293; though if it merely lays the same claim in a different form, it is admissible. 2d. As to amendment of parties, the claim is barred as to those afterwards brought in: Magaw v. Clark, 6 Watts 528. It was held in Wood v. Anderson, 1 Casey 407, improper to allow an amendment by which a claim would be brought in, which would otherwise be barred. It would scarcely be pretended that after an action of slander had been pending several years, new words could he laid by way of amendment, which would otherwise be barred, or a new note added to the narr. in assumpsit, against which the statute had run.</p> <p>“ In the present case the original bill most carefully claimed that the defendants should he held to account for all the ore taken out of the three hills, as set forth and specifically described by the lines, courses and distances in what is called ‘ Clark’s survey.’ In the amended bill an account is demanded of all of the ore taken and appropriated from either of the ore-banks or mine-hills, however extended; and it is well known that those hills extended greatly beyond the ‘ Clark survey,’ as in said lines set forth, and thereby introduced a new claim.</p> <p>“ The plaintiff asserts that he can lay his demand with a double aspect, asking for an account of all the ore taken from the land which he admits that they hold as a tenancy in common, and also from certain other lands, which he describes, and asks the court to decide whether that is or is not held in common also.</p> <p>“ There is no doubt of the power of a party by his bill to claim under a double aspect, and recover according to the right made out. Such is the case in 11 Verm. 290, where a portion of an estate was demanded on account of a will having been obtained by undue means, and that failing, that a note bequeathed by the same will to the plaintiff should be given up for cancellation. Or in 30 Ala. 286, where an account was demanded as a partner, and if that was not established, that certain money advanced to carry on the business should be repaid.</p> <p>“ But he cannot set forth an entirely inconsistent state of facts, and ask for relief in the alternative. It must be consistent with the bill: Colton v. Ross, 2 Paige’s C. 397. Also 1 Johnson & Murray 458; 2 Schoales & Lef. 9; 7 Vesey 211. But he may state the facts, and ask for relief as they may be found by the court: 4 C. E. Green (N. J.) 29.</p> <p>“In this case, after stating the tenancy in common of the land within the survey, the bill goes on to describe that without its bounds, on lots numbers one and two of the subdivisions of the property partitioned, as part of the Cornwall estate, and then expressly denies that there is any common property in the ores on the subdivisions, and the whole statement of facts and course of reasoning is introduced to show that none of the defendants have any interest in or claim to the ores, or any parts thereof, on lots numbers one and two, and yet asks that tbey shall account therefor as tenants in common. Thus not only is the right of defendants to take ore outside of the survey denied, but the whole history of the various partitions is introduced at length in the bill as amended, to prove that there is no such right. To us it has always been very clear that the ‘Clark survey’ was intended merely to set apart the surface land, w'hich was to remain in common, and not taken into any of the purparts, whilst either of the tenants in common should have full liberty to enter upon any of the ore on Cornwall hills, outside of the survey, and extending beyond it, and sink shafts, drive drifts, dig, take and carry away ore, the same as within the survey. This left them tenants in common of that ore the same as before partition, whilst the land itself was parted and divided to the lines of the survey. Such was the agreement of August 1787, between the former owners. It was almost inexcusable in the bill of June 5th 1865, to question the right to the ore outside of the ‘ Clark survey,’ or that the same was held as common property. This court ruled in Coleman v. Grubb as early as 1853, that the ore outside as well as inside of the survey was common property, and that decision was affirmed in the Supreme Court in 11 Harris 393. It was again decided in the same way by the Supreme Court in Blewett v. Coleman, 4 Wright 46, in the year 186T, and it has been so held at every time the case came up; so that point should have been considered as settled, if any. question can be settled in Pennsylvania. To claim, therefore, as is done in the original bill in the present case, filed in June 1865, was sinning against light and knowledge. Had the amendment been resisted in 1872, and the character thereof brought to the attention of the court, it probably would not have been received, as a party cannot, under the privilege of amendment, introduce matter which would constitute a new bill: 1 Ed. Ch., p. 46. It should appear that the matter had come to his knowledge since filing the original bill: Id. 46-7. And where new matter is introduced by way of amendment the same defence can be made against it as to a new bill then filed: 3 Iredell’s Ch. 535. So as to new parties: 11 Clark & Finnelly, already cited. An amendment of'an original bill, so far as it asserts a new title or claim, is considered an original so far as regards the Statute of Limitations: Holmes v. Moreland, 1 M’Lean C. C. 1. This affirmed in S. C. U. S. It is otherwise where the same title is asserted in a different way: Id. We consider this a new claim, and the assertion of a different title, so far as regards the ore outside of the survey, by which the three hills are described in the original bill. Where a bill is asked to be amended, both as to- discovery and relief, the suit as to such matter is only considered as pending from the time of the amendment allowed: 2 Atk. 218.</p> <p>“ Substantially a new bill cannot be introduced by way of amendment: 17 How. 144. As to the new matter, the bill is considered as pending from the time of the amendment: -1 Dan. Ch. Prac. 402-3. A plaintiff must by his bill show a clear right to recover on the facts stated, and cannot resort to defendant’s answer to make out his case: 1 Bland Ch. 250. He must state a distinct title to recover in equity : Id. 252. In the present case relief is asked in the alternative, which is often proper, but that can scarcely be allowed where it is denied that the property was held in common. It is like the case in 2 Sch. & L., p. 9, where a contract is asked to be enforced which the party, by his bill, avers never was made. See also 7 Ves. 211. Many of the principles referred to and cases cited are reiterated and relied on by Mr. Justice Sharswood in a very able opinion reported in the Legal Gazette of April 29th 1870 — Chambers v. Waterman — where it is held that an amendment, which in effect amounts to a new bill, is inadmissible, and the parties can only be affected from the time of the change. If their rights would be injured the amendment cannot be allowed. In the present case no application has been made to strike off the amendment, but the party has met it by a demurrer.” * * *</p> <p>On January 5th 1875, a decree was entered dismissing the bill because the relief was barred by the Statute of Limitations, and because the demand for an account was for ore taken from property of which the tenancy in common was denied.</p> <p>From this decree this appeal was taken.</p> <p>The error assigned was that the court erred in dismissing the bill.</p>

<p>Error to the Court of Common Pleas of Cumberland county: Of May Term 1875, No. 73.</p> <p>This was an action of ejectment for one acre of land in Hampden township, brought to the August Term 1872 of the court below, by Christian Eberly and Mary his wife, in her right, against Jacob Rupp and J. S. Rupp. The defendants were in possession under a lease-from Elizabeth Buttorff. She was dead, and they defended under her, claiming that she owned the premises as the heir .of her father, John Rupp.</p> <p>John Rupp died January 13th 1834, having made a will, in which he directs as follows: “ As to such worldly estate wherewith it hath pleased God to intrust me, I dispose of the same as follows, viz.: * * * I give and bequeath my house and ten acres of land, whereon my son-in-law, Henry Buttorff, now resides, with the appertenances to my grandchild, Mary Buttorff, daughter of Henry Buttorff, intermarried to my said daughter Elizabeth. * * * And as soon as my said granddaughter Mary shall be in a capacity to take care of said house and ten acres of land, I order and direct my executor, hereinafter named, to deliver the same unto her; as, also, all moneys arising from the sale of personal property, bonds and cash, and other outstanding debts. Item. It is my will that in case my said daughter Elizabeth, intermarried as aforesaid, should happen to have more lawful issue, then, and in such case, it is my will that the whole of my real estate shall be equally divided to and among all my grandchildren of my said daughter Elizabeth, and their heirs and assigns for ever. Provided, nevertheless, that in* case of more issue, I direct that all my real estate be valued and appraised, and my said granddaughter Mary shall hold and possess said ten acres of land as part of her legacy.”</p> <p>He died seised of the ten acres devised to his granddaughter, Mary Eberly, and a farm, of which the premises in dispute are a part. Elizabeth Buttorff was the only child and heir of the testator. She entered upon the farm and leased the acre in dispute. Her husband died in 1864. She died in 1873, leaving Mrs. Eberly her only child and heir, never having had any other children. The defendants were in possession at her death and at the bringing of the suit, claiming to hold under a lease from her.</p> <p>The main question in the case was: To whom did the farm pass on the death of the testator ? Whether it was devised to Mrs. Eberly, or whether it was undisposed of by the will, and passed to Mrs. Buttorff as his only heir at law.</p> <p>There were collateral questions raised on the trial below, which were not considered in the Supreme ’Court. The court below (Junkin, P. J.) charged with reference to the clauses of the will given above: “ This is not a very explicit devise, but it is an inference which seems inevitable, that testator intended to devise his real estate to Mary, his granddaughter, in fee, subject to open and let in after-born children, of her mother, should any be born — but in fact none were, and hence Mary got the whole; and we instruct you that she had title under the will of John Rupp to the land in dispute, and is entitled to recover, unless the mother, Elizabeth Buttorff, has acquired title otherwise than as heir-at-law of her father, the testator.”</p> <p>The verdict being for the plaintiffs, and the defendants having taken a writ of error, this instruction of the court was assigned for error.</p>

<p>Appeals from tbe decree of the Court of Common Pleas of Lebanon county: No. 102 and 129, to May Term 1875. In the distribution of the estate of John A. Smeid, assigned for the benefit of his creditors.</p> <p>On the 12th of April 1873, Smeid made an assignment of his real and personal estate for the benefit of his creditors.</p> <p>At the date of the assignment Moses K. Graeff held judgments which were liens on Smeid’s real estate, viz.:—</p> <p>1. Judgment (of revival) No. 21 to August Term 1873 for $3000.</p> <p>2. No. 232 to April Term 1871 for $1000.</p> <p>3. No. 99 to November Term 1872 for $4700.</p> <p>On executions issued by Graeff on his judgments, Smeid’s real estate was sold by the sheriff on the 13th of December 1873. The proceeds of sale were brought into court, and upon the report of the auditor to make distribution, confirmed August 21st 1874, the first and second judgments of Graeff were decreed tobe paid'in full, and of the last judgment, amounting to $4971.81, there was decreed to be paid all but $861.44.</p> <p>Graeff received all the money awarded him under the decree.</p> <p>The assignees settled an account of their administration of the trust, which was confirmed August 21st 1874, and James W. Ebur, Esq., appointed auditor to make distribution of the balance in their hands. Before him Graeff claimed that he was entitled to a distribution from the fund arising from the personal estate upon the whole amount of all his judgments without regard to the amounts received from the sales of the real estate, so that this would not exceed the whole amount of his claim. The auditor was of opinion that Grraeff was entitled to a dividend only on $861.44, the balance remaining due on his last judgment.</p> <p>Grraeff filed exceptions to the auditor’s report: that he should have been allowed a dividend on the full amount of all his judgments until the whole balance should be paid.</p> <p>The court (Henderson, J.) held that the exceptant had the right to come in on the personal fund for a dividend on the whole amount of the unpaid judgment: No. 99 to November Term'1871. As to the other two judgments he said :— * * *</p> <p>“The counsel for the exceptant further argues that the distribution by the auditor should have been made upon the aggregate amount of the indebtedness of the assignor at the date of the assignment, including the judgments which were paid in ■ full and satisfied out of the proceeds of the real estate sold by the sheriff; this in order to give the subsequent judgment-creditors, unpaid by way of sub rogation,, the share of those judgment-creditors who are paid in full. To state this proposition is to answer it. The pa¿d creditors themselves cannot come in upon this fund. By pursuing one remedy to satisfaction they surrender the other. Their right to participate at all is only a right in equity. Their priority upon the real estate satisfied them, but it did not take away any right from them which must enure to the benefit of all other creditors equally. The judgment-creditors have no priority of lien upon the personal fund. They can acquire none by subrogation.”</p> <p>, The court corrected the report of the auditor by allowing to Grraeff a dividend on the principal and interest of the judgment No. 99 to November Term 1872 only.</p> <p>Graeff’ appealed to the Supreme Court. He assigned for error: that the court did not decree him a dividend on the whole amount of all his judgments until he was paid in full, if such distribution would reach so far.</p> <p>C. H. Meily, a creditor, for himself and the other creditors, also appealed to the Supreme Court, and assigned for error: that the court erred in allowing Graeff a dividend on the full amount of the judgme'nt No. 99 to November Term 1872, instead of upon the balance, after deducting the amount received upon it from the proceeds of the sheriff’s sale.</p>

<p>1. By the Act of April 13th 1869, the District Court of Cambria was created, with jurisdiction in parts of Cambria county; the prothonotary of the Common Pleas of that county, as clerk of the District Court, to perform the duties and receive the fees of prothonotary, &c. Swank was elected, by voters within the jurisdiction, clerk of that court; in a quo warranto against him, the relator suggested that he had been elected and commissioned prothonotary of the Common Pleas, &e., of Cambria county, without more. Held, that the suggestion was insufficient in not averring that, as prothonotary, &c., the relator had the right to perform the duties and receive the fees of clerk of the District Court; but having set out the foundation of his title, that averment might be supplied by amendment; the amendment was allowed by the Supreme Court.</p> <p>2. Primá facie the relator had an apparent title to perform the duties and receive the fees of the office of clerk, and it was not necessary that the writ should issue at the suggestion of the attorney-general.</p> <p>3. The Supreme Court has jurisdiction in all cases of quo warranto, the Common Pleas having concurrent jurisdiction in the cases enumerated in the Act of June 14th 1836; in those cases the Supreme Court may, in their discretion, decline to exercise jurisdiction.</p> <p>4. The Act of 1869 does not create the office of clerk of the District Court as an independent office.</p> <p>5. If it were an independent office, the act makes no provision for filling it by election. The defect is not supplied by the 3d section of the 6th article of the constitution, directing that the clerks of the courts, &c., shall be elected by the voters over which the jurisdiction of the court extends.</p> <p>6. Swank was not lawfully elected to any office created by law ; he unlawfully exercised the functions of clerk of the District Court.</p> <p>7. The Act of 1869 declared that the powers, &c., of the District Court should be exercised by a president learned in the law, and two associates ; and that the president and associate judges of Cambria county should be those judges. Held, that there is no authority for those judges to hold the court, the organization of the court being unconstitutional.</p>

<p>Error to the Court of Common Pleas of Cumberland county: Of May Term 1872, No. 84.</p> <p>This suit was an amicable action and case stated, in which the School District of Carlisle was plaintiff and Samuel Hepburn defendant. The action was entered and the case stated filed April 30th 1872. The facts agreed to in the case are as follows: — ‘</p> <p>Samuel Hepburn, the defendant, of the borough of Carlisle, was the owner of 460 shares of the capital stock of The First National Bank of Carlisle. The par value of the stock was $100 per share. The stock of the bank was assessed under the Acts of April 12th 1867, Pamph. L. 74, April 2d 1868, Pamph. L. 65, 1 Br. Purd. 142, pi. 86 et seq., at the value of $150 per share. The assessment was returned to the commissioners of Cumberland county on the 3d of March 1870. The real estate of the bank being a house and lot in Carlisle, and forming part of the capital stock of the bank, was returned by the assessor for 1870 at a valuation of $3200. A tax of five mills on the dollar, amounting to $16, was assessed for county purposes for 1870 on the said real estate, and paid by the bank September 12th 1870. A state tax of three mills on the dollar and a county tax of five mills on the dollar was assessed by the county commissioners for 1870 on each share of stock of the bank in the hands of the owner. The state tax, amounting to $225, was paid by the bank August 1st 1870. The county tax of $375 is unpaid. The School District of Carlisle, by resolutions of May 2d and June 6th 1870, assessed for that year on the real estate a school tax of nine and a half mills on the dollar, amounting to $34.30; also a school tax of nine and a half mills on the dollar on each share of stock in the hands of the owner, of which $655.50 was assessed on the 460 shares of stock owned by the defendant. The school tax on the real estate was paid by the bank August 1870; the school tax on the stock is unpaid. On May 6th 1870 the councils of Carlisle assessed a borough tax of five mills and a bounty tax of three mills on the dollar on the real estate owned by the.bank, and a borough tax of five mills and bounty tax of three mills on the dollar on stock of the bank in the hands of the owner. The jmrough and bounty tax on the real estate was paid by the bank on the 28th of June 1870. On the 19th of January 1871 the bank accepted the provisions of the Act of March 31st 1870, Pamph. L. 42, 1 Br. Purd. 143, pi. 96, et seq., relating to taxation on shares in national banks, and on the 19th and 20th of January 1871 paid to the state treasurer $500,- being one per cent, on the par value of the capital stock. For the year 1871, county, school, borough and bounty taxes have been assessed on the real estate of the bank, but no municipal taxes have been assessed for that year -on the stock of the bank.</p> <p>“ 1. If the court shall be of opinion that the shares of said bank, belonging to the defendant, were liable to taxation at the rates assessed thereon by the plaintiff at the time the same were assessed for the year 1870, then judgment to be entered for the plaintiff for $655.50.</p> <p>“2. If the court shall be of opinion that the payment of one per centum of the par value of the capital stock of said bank to the state treasurer on the 19th day of January 1871, in compliance with the Act of March 31st 1870, exempted the shares of said •bank in the hands of the holder thereof from all municipal taxation for the year 1870, then judgment to be entered for the defendant.</p> <p>“ 3. If the court shall be of opinion that the payment by the said bank of one per centum on the par value of said stock to the state treasurer, before the 20th of January 1871, exempts the real estate of said bank from all taxation for municipal purposes for 1871, then judgment for the defendant for $34.30.</p> <p>“ 4. If the court shall be of opinion that the school directors had authority to levy and collect taxes upon said bank shares, to a greater amount than has been paid to them under the facts stated, then judgment to be entered for the plaintiffs for such amount as the court may think still due; but if defendant has paid to plaintiffs all the taxes legally due to them upon said bank capital and stock, then judgment for defendant.</p> <p>“ 5. If the levy and assessment of said taxes be illegal and void for the reason that they are assessed at the rate of $150 per share, while the par value thereof is but $100 per share, then judgment for defendant.”</p> <p>The Act of April 12th 1867 provides, sect. 1, that stock in national banks shall be taxed in the hands of the holders at the same rate as state banks, viz., three mills on the dollar of the value of the stock. Sect. 2. The auditor-general and state treasurer are required to appoint assessors to visit all the national banks and assess on the stockholders the actual value of the stock held by each, make a list and return it to the county commissioners ; and the amount of the taxes thus found to be due to the Commonwealth shall be collected on other taxes. Sect. 5. If any bank shall pay to the Commonwealth one per cent, per annum on the par value of its stock, “ the shareholders of said bank shall be exempt from all other taxation on the value of said shares.” The Act of April 1868 provides, sect. 1, “ No share of the stock of any national bank shall he appraised higher than the current value of the stock in the market where the bank is located.” Any stockholder may appeal to the auditor-general, who shall have power to adjust the assessment and abate and increase the assessment as he may think proper. Sect. 2. The assessors, on completing their assessments, shall return them to the auditor-general and give public notice of the valuation, by putting up notice in the bank, &c., and any shareholder dissatisfied with the valuation, may enter his appeal with the auditor-general in thirty days from putting up the notices.</p> <p>By the Act of March 31st 1870, section 3, all national banks are to be taxed for state purposes at three mills on the assessed value, “ and for county, school and municipal and local purposes at the same rate as * * * upon other moneyed capital in the hands of individual citizens of this state.”</p> <p>Sect. 4. If any bank, &c., shall elect to collect annually from its shareholders a tax of one per cent, on the par value of the shares, and pay it into the state treasury on or before the 20th of January of each year, “the said shares, capital and profits, shall be exempt from all other taxation under the laws of- this commonwealth.”</p> <p>The court (Junkin, P. J.) decided that by the acceptance by the bank of the Act of March 31st 1870, and paying the state tax assessed by that act and the Act of April Í2th 1867, sect. 5th, it was relieved from the payment of the school taxes as well as the others for 1870. The court held also that the stock could not be assessed at a higher valuation than its par value.</p> <p>Judgment was therefore entered for the defendant. This was assigned for error, on the removal of the record to the Supreme Court by writ of error.</p>

<p>Quo Warranto from the Supreme Court, issued May 12th 1873, by the Commonwealth, upon the suggestion of the Attorney-General, against James Potts, that the respondent unlawfully was exercising and claimed to exercise the office of President Judge of the District Court of Cambria; the writ called on him to show by what authority he claimed to exercise the office.</p> <p>The respondent answered, that he claimed to exercise the office by virtue of an election of the qualified electors of the district over which the said District Court had jurisdiction, and a commission from the governor to hold the office for ten years from the 1st day of December 1871; that he took the oath, &c., and entered upon the duties of the office of president judge aforesaid, and continued since to perform the duties of said office by virtue of the said election and commission. He further answered that the Act of April 13th 1869 established a court of record, to hold its sessions in the borough of Johnstown, to be called the District Court of Cambria, and conferred civil and criminal jurisdiction over the borough of Johns-town (and other boroughs and townships specified in the act), that the act established an independent judicial district in those portions of the county, with the necessary officei’s and powers, &c., for trial of causes as other courts.</p> <p>The answer then set out other powers conferred by the act upon the court. The respondent further answered that by the act the president judge of the 24th judicial district was made president judge of the District Court; that by a quo warranto issued out of the Supreme Court, Judge Taylor, who. was then president judge of that judicial district, was ousted from the office of president judge of the District Court. By Judge Taylor’s removal a vacancy was created, which was filled by the appointment of the respondent by the governor; the vacancy having occurred more than three months before the general election, the sheriff of Cambria county issued his proclamation to the qualified electors of the district over which the District Court had jurisdiction, to meet at their respective voting places to elect a president judge of that court; that the respondent was then elected president judge of said court, and duly commissioned to that office for ten years.</p> <p>The respondent then set out the Acts of Assembly under which judges were elected and vacancies filled, and averred that he had been elected and commissioned in accordance with the Constitution and the various Acts of Assembly relating to that subject.</p> <p>The Attorney-General demurred to the answer, and the respondent joined in demurrer.</p>

<p>Appeal from the decree at Nisi Prius. In Equity. Of January Term 1873. In the distribution of the proceeds of trustees’ sale of The Southern Pennsylvania Iron and Railroad Company.</p> <p>On the 22d of March 1867 an Act of Assembly, authorizing the incorporation of the Caledonian Iron and Railroad Company, was passed. The capital was to be $300,000, with power to increase it to $500,000, in shares of $100 each, or to such an amount as might be “ necessary to the full and complete operation of the company.” The number of directors to be nine. A director might be an agent or officer with a salary. The company was authorized to hold 16,000 acres of land, with power to mortgage, sell. &c.; to mine, manufacture and prepare for market, timber, coal, iron-ore, &c.; sell the same, &c. Also, to construct and operate a railroad, or railroads with branches to connect with any railroad “ now or hereafter to be built.” Also, to be subject to the provisions of the General Railroad Law of February 19th 1849, and its supplements. The stock might be paid for in real and personal estate, “at a bond, fide valuation to be agreed upon by a majority in interest of the subscribers and stockholders.” The company might issue coupon bonds at an interest not exceeding 7 3-10th per cent, per annum, and sell them at their “market value.” A supplement of April 10th 1867, amongst other things, authorized the purchase of 4000 additional acres of land, directed the mode of organizing the company, &c. A meeting for receiving subscriptions was held May 16th 1867, and 870 shares of stock were subscribed. Amongst others, D. Y. Ahl subscribed for one hundred shares; most of the other stock was subscribed for by Ahl for the other persons in whose names it was taken. Another meeting was held June 12th 1867, and some further steps taken towards organization; after which the project was virtually abandoned.</p> <p>D. Y. Ahl was an iron-master, and with his brother, P. A. Ahl, owned iron land in Franklin county, in the vicinity of the projected road, the title generally being in the name of D. Y. Ahl. Some land was purchased by him afterward, and about March 21st 1868 he had about 5000 acres. After some efforts by D. V. Ahl, with a view to selling his lands and building a railroad, which were not successful, the subject came to the knowledge of Richmond L. Jones, Esq., of Reading, .and after some correspondence, he and D. V. Ahl had a conference with reference to it, on the 23d of November 1868. A plan was proposed, of which a written memorandum was made. It was: to organize a company with $800,000 capital, to which were to be transferred the charter and stock of the Caledonia company; Ahl to convey his lands, about 5000 acres, to the company for $50,000 in money, $50,000 in the bonds of the company, and $50,000 in capital stock. Jones and his associates to pay into the treasury $450,000, of which $50,000 were to be paid to Ahl for the land, and $400,000 applied to the construction of a railroad from the land to Chambersburg, or some more expedient point. Jones and his associates to receive for their advance $450,000 in the bonds of the company and $450,000 in its capital stock. In the memorandum it was declared that it was not to be binding as an agreement. There was much correspondence between Ahl and Jones, in which secrecy as to their plans was enjoined by Ahl and assented to by Jones. Ahl having informed Jones that the charter of the Caledonia Company could be obtained, they agreed that the enterprise should be carried on under it, and, as the master found, they entered into it “for their individual profit, using the machinery of the corporation for the purpose.” It was at first supposed that the railroad to be built would be eighteen miles long. It was after-wards ascertained that it would be twenty-four miles. About January 1869, the plan stated in the memorandum was changed, and it was then arranged that the quantity of land to he conveyed by the Ahls should be increased to 10,000 acres; that Jones and his associates were to receive for the construction of the road $625,000 in stock at 50 per cent., and $625,000 in the bonds of the company at 50 per cent.; the Ahls to be paid for the 10,000 acres, including stock and personal property, $200,000 in stock at 50 per cent., and $200,000 in bonds at 50 per cent.</p> <p>A supplement to the act of incorporation of the Caledonia company was passed February 20th 1869; it authorized them to issue bonds to be secured by mortgage on their lands, railroads, franchises, &c., to purchase lands and personal property and pay for them in stock, to be credited as full paid; to change the name of the company, to purchase the stock theretofore issued, to sell or cancel it, as the directors might order. A meeting of the company was held February 25th 1869; the whole number of shares then taken was 911; Ahl owning 420 shares and three others owning 40 shares were at the meeting. The supplement of February 20th 1869, was accepted, and four directors, of whom James McCarty was chosen president, were elected; neither D. V. Ahl nor R. L. Jones were elected directors.</p> <p>At a meeting of the directors March 5th 1869, a contract was entered into with Jones by which he contracted to construct a railroad from a point on the Cumberland Valley Railroad, between Chambersburg and Greencastle, to Mercersburg, and thence to a point on the land of Ahl, near Mt. Pleasant Furnace, for which he was to receive $625,000 in stock and $625,000 in first mortgage bonds of the company intended to be issued, Jones to give security in $200,000 for the performance of the contract, and if the security was not entered in ninety days, the contract to be void.</p> <p>Another supplement to the act of incorporation was passed April 30th 1869, which changed the name of the corporation to the Southern Pennsylvania Iron, Land and Railroad Company; all the rights, franchises, &c., and the restrictions, &c., of the Caledonia company to continue, the obligations, &c., of the company not to be affected; subscriptions to the stock to be recovered in the new name; this supplement was accepted May 1st 1869. On the 24th of December 1869, under the Acts of Assembly and by authority of a resolution of the stockholders, the directors resolved to issue coupon bonds of the company to the amount of $625,000, payable .on the 1st of March 1900, with interest at seven, /per cent, per annum, payable semi-annually, and secure then^y a mortgage in trust to J. Edgar Thomson and Frederick WaWj'pn their railroad, rolling stock, real and personal estate, &e., and corporate franchises. A mortgage was made accordingly on the 1st of March 1870. On the same day the company entered into an agreement with the Cumberland Valley Railroad Company, by which the latter agreed to lend them $300,000, to be advanced pari passú, with the amounts expended by the Southern Pennsylvania Company upon the road, and in instalments not exceeding ten per cent, per month, the loan to be secured by the first mortgage bonds of the company, they to deliver to the Cumberland Valley Company 2000 tons of railroad iron. By the same agreement they leased their road, when completed, to the Cumberland Valley Company for 199 years. On the 23d of July 1870, the directors authorized the further issue of bonds to the amount of $200,000, at seven per cent., payable semi-annually in gold, on the 1st days of March and September, the principal payable on the 1st of September 1880, to be secured by a mortgage on the company’s property and franchises to John Rice, trustee. A mortgage was made accordingly, with the proviso for the sale of the mortgaged property in case of default of the payment of interest or principal. The railroad was completed about October 1st 1871, accepted by the Southern Pennsylvania Company, and passed into the hands of the Cumberland Valley Company under the agreement of March 1st 1870.</p> <p>Default having been made in the payment of the interest, Rice, the trustee, and certain second mortgage bondholders as plaintiffs, filed a bill in equity in the Supreme Court against the Southern Pennsylvania Company and others, judgment creditors. One of the prayers was for a decree directing the sale of the mortgaged premises and distribution of the purchase-money, the sale not to divest the lien of the first mortgage nor the contract and lease with the Cumberland Valley Company, but the purchaser to take subject to them. A sale was decreed in accordance with the prayer.</p> <p>Rice, the trustee, was allowed by the court to purchase at the sale ; the property was struck down to him at $305,000; the sale was confirmed January 4th 1873 ; his bid by leave of the court was transferred to J. Edgar Thomson, a.nd the deed was made to him. On the same day Charles H. T. Collis, Esq., was appointed master to distribute the fund; the court directed the fund to be invested.</p> <p>The master sat on the 20th of January 1873, and on a number of days subsequently.</p> <p>He reported that the trustee submitted a statement charging himself with $305,000, and claimed credit for his own commissions, counsel 'fees and other expenses amounting to $12,871.50 ; he agreed also that he should be charged with interest at 6 per cent, on $305,000 from the 27th of January 1873.</p> <p>The claims presented to the master were :—</p> <p>Augustus F. Boas — Judgment in Franklin county, No. 203 to August Term 1870, entered June 9th 1870, with interest and costs .... $32,894.32</p> <p>Farmers’ National Bank of Reading — Judgment in Franklin county, No. 204 to same term, entered June 9th 1870, with interest and costs . . . 32,894.32</p> <p>Same bank, Reading Savings Bank and Bushong & Brothers — On ninety-seven second mortgage bonds 97,000.00</p> <p>Coupons on same, due September 1st 1871, March 1st and September 1st 1872, with interest; and three months twenty-two days’ interest, due on each in addition ........ 12,771.24</p> <p>Henry M. Keim — on three like bonds . . . 3,000.00</p> <p>Coupons for same time ...... 188.13</p> <p>Kensington National Bank — on sixty-five like bonds . .65,000.00</p> <p>Coupons for same time ...... 8,536.57</p> <p>Allegheny National Bank — on ten like bonds .' . 10,000.00</p> <p>Coupons for same time ...... 939.68</p> <p>John Rice — on twenty-five like bonds . . . 25,000.00</p> <p>Coupons for same time ...... 2,347.87</p> <p>Same on judgment in Franklin county, No. 23 to August Term 1872 ....... 125,000.00</p> <p>The several parties interested in the ninety-seven bonds, claimed to hold them for the following items of indebtedness against the Southern Pennsylvania Company:—</p> <p>Farmers’ Bank of Reading — Two notes of R.L. Jones, endorsed by J. McCarty, for $15,000 each, dated respectively, September 25th and October 5th 1871 . . $30,000.00</p> <p>Bushong & Brother — Note, dated August 30th 1871, of J. Glancy Jones and J. McCarty to R. L. Jones, and endorsed by him $22,600</p> <p>Note, dated October 16th 1871, of the South Pennsylvania Company, endorsed by McCarty, J. G. Jones and R. L. Jones; guarantied by Bushong & Brother to J. A. Althouse......15,120</p> <p>Note, December 16th 1871, R. L. Jones to H. Maltzberger, and endorsed by him . 250</p> <p>--- 37,970.00</p> <p>Reading Savings Bank — Note of company, dated July 20th 1871, to R. L. Jones, endorsed by him.....$5,806.91</p> <p>Note of company dated October 17th 1871 to R. L. Jones, endorsed by him . . 5,000.00</p> <p>Note of company, October 20th 1871 to R. L. Jones, endorsed by him . . . 2,669.07</p> <p>---$13,575.98</p> <p>The bonds and coupons were payable in gold.</p> <p>Daniel V. Ahl claimed to be the owner of eighty of the above bonds with coupons for the same time, which he alleged had been delivered to Messrs. Kennedy & Stewart for him in pursuance of an agreement with the company, of June 4th 1870, and which had been returned to the company without his consent.</p> <p>On the 7th of December 1869, D. V. Ahl entered into an agreement with the Southern Pennsylvania Company, reciting the execution of a deed to the company of twenty tracts of land of even date; that Ahl had placed the deed in the hands of John Evans in escrow, to be delivered upon the condition that the company should give their judgment bond for $50,000, payable May 1870, the bond to be delivered to Evans on the 11th of same December; also, on or before the 1st of May 1870, to deliver to Evans $130,000 of the stock and $130,000 of the bonds of the company, the bonds to be paid by one-third of the company’s profits annually, and at all events to pay him $10,000 annually, with a right to Ahl, in case of default by the company, to enter, mine, &e., with other stipulations not necessary to refer to.</p> <p>On the 4th of June 1870, the company, acting by Richmond L. Jones, their attorney in fact, entered into an agreement with Ahl, by which the agreement of December 7th 1869 was cancelled, the company giving as the consideration $50,000 in cash, $50,000 of the first mortgage bonds, and eighty bonds of $1000 each, to be secured by a second mortgage; Ahl to have exclusive use, &c., of the furnace, &c., “ as though he had obtained the same by lease, until the 1st day of April 1871,” and upon the surrender of the lease, -the company to buy at an appraised value all the personal property on the premises. The deed to the company was delivered. The money was paid, and the first mortgage bonds were delivered to Ahl, on or about June 4th 1870 ; on the 28th of the next November the treasurer of the company sent the eighty second mortgage bonds to Kennedy & Stewart, their solicitors at Chambersburg, to be delivered to Ahl; they notified Ahl that they would deliver them to him upon his giving a receipt for them. He declined to receive them, on the ground that they were third mortgage bonds, by reason of the enti-y of the judgments before mentioned in favor of Boas and the Farmers’ Bank of Reading, complaining that the entry of these judgments was a violation of the agreement. Upon his inquiry, Mr. Kennedy told him the judgments could not be satisfied, and Ahl positively refused to accept the bonds; he repeated the refusal, saying that he acted under the advice of counsel; the refusal was regarded as “final and conclusive.” In August 1871, Kennedy & Stewart returned the bonds to the treasurer of the company on instructions from that officer; of this Ahl was informed, and it did “ not appear that he ever made any subsequent demand upon the company for them.” The master was “ of opinion that the bonds were never delivered to Mr. Ahl, and that he never had any such title to or possession of them as entitled him to a claim on this fund.”</p> <p>The master having expressed this opinion, the counsel for Ahl proposed to give evidence, which was specified, for the purpose of showing that the persons having possession of the eighty bonds had not in equity any claim in the fund against him. The master rejected the offer.</p> <p>On the 24th of December 1870, after the execution of the second mortgage, the directors of the Southern Pennsylvania Company passed a resolution reciting the contract with Richmond L. Jones for the construction of the road, to be paid for by $625,000 of first mortgage bonds; that they had subsequently paid $50,000 of those bonds to Ahl in payment for his lands, and therefore to that extent could not comply with their contract with Jones; and that Jones had agreed in lieu of those bonds to receive $75,000 of the second mortgage bonds, and directing the last mentioned bonds to be delivered to him; this was accordingly done. The company afterwards issued absolutely three of the second mortgage $1000 bonds to Henry M. Keim, and ten which became the property of the Allegheny National Bank, leaving $112,000 of the bonds undisposed of. On the 22d of April 1871, the directors passed a resolution reciting that by reason of many of the subscribers to stock having neglected to pay their subscriptions, the company was unable to meet their obligations, and authorizing Jones to enter into negotiations for procuring individual endorsements and_ guaranties, &c., to provide for such obligations. On the 27th of May 1871 Jones reported to the directors, as the result of his negotiations, that he could furnish endorsements, &c., by which he could procure temporary loans, and they directed the treasurer to issue to him 1500 shares of the capital stock of the company, “ in consideration of the pledging of the credit and private property of individuals for the exclusive benefit of the company;” the treasurer was directed also to deliver to Jones the remaining $112,000 of the second mortgage bonds as collateral security for the temporary loans, &c., to be procured by him; the $112,000 of bonds were delivered to him.</p> <p>These bonds were delivered as collateral security for loans on the company’s notes from the following lenders :—</p> <p>Kensington National Bank, .... $34,970.50</p> <p>Reading Savings Bank, ..... 14,285.28</p> <p>Bushong & Brother, .....*. 15,880.53</p> <p>These notes were endorsed by Jones and others.</p> <p>There was also due Jones for money advanced by him at various times a balance of $66,247.72. There were also individual notes under the resolution of May 27th 1871, by which the $112,000 of bonds were to be pledged as collateral, amounting to $61,438.79, leaving $4808.93 due Jones.</p> <p>The master was of opinion that the $112,000 of the bonds were issued for a valuable consideration, and that Jones was entitled to their proceeds to indemnify him and those acting with him against liability for endorsing the notes held by the Kensington Bank and Reading Savings Bank, or by pledging private property for the same, and also for the balance due Jones himself; he also was of opinion, and so decided, that the whole amount of the bonds was payable to those who held them as collateral; that there was no resulting interest to the company in them, and that the other creditors had nothing to do with them. The master, therefore, after deducting the expenses of the audit, &c., distributed the fund to those holding the second mortgage bonds, and excluded Ahl’s claim and the claim of Rice on his judgment.</p> <p>Ahl filed a number of exceptions to the report, the seventh was to the exclusion of the evidence offered by him.</p> <p>Rice also filed two exceptions, the first was that the report was premature, without affording an opportunity for a full investigation of the books, &c.</p> <p>On the 3d of May 1873, the court at Nisi Prius, Mr. Justice Shauswood, directed that the stockholders of the company be allowed to appear and produce such evidence as the master may deem relevant and competent; Ahl's seventh and Rice’s first exceptions were sustained and the others reserved; the case was referred back to the same master.</p> <p>The master had his first hearing under this reference May 14th 1873; no new claims were presented except two by the Commonwealth for taxes ; the master reported against them. He reported that an examination of the books, &c., under the order made on Mr. Rice’s exception, was had, and that nothing appeared to alter his conclusions as to Rice’s claim, which he had reached in his first report. He reported that the evidence introduced by the stockholders who were represented before him had no relevancy to the issues before him.</p> <p>As regards the claim of Ahl there was additional evidence, viz.: On the 25th of November 1870, Maltzberger, treasurer of the company, wrote to Ahl that he had sent eighty second mortgage bonds of $1000 each, as per Ahl’s directions, to Kennedy & Stewart, Chambersburg, “in compliance with the agreement of said company with yourself of June 4th 1870,” to be delivered to Ahl on his application. The treasurer wrote on the same date to Kennedy & Stewart, saying he had sent the bonds, describing them, and saying they were sent in pursuance of the agreement of June 4th 1870, as in the letter to Ahl; also, a receipt for Ahl’s signature speaking of the bonds in the same way. Also, a letter, August 15th 1871, from Maltzberger to Kennedy & Stewart, directing them that as Ahl had refused to accept the bonds to return them to him. Besides this, and the facts before stated of Ahl having refused to take the bonds, the master reported that before the bonds were returned to the company, Ahl endeavored to enforce his covenant Avith the company by holding possession of the property conveyed by him to the company, after the time fixed for his holding it “as upon a lease” had expired and, after having been dispossessed by proceedings under the Landlord and Tenant Act, commenced an action at law to recover restitution, the action being still pending ; that he kneAv the bonds had been issued to other persons, and were still outstanding ; that without making objection he allowed proceedings to foreclose the second mortgage, and at the sale gave no notice that he claimed the bonds, but gave notice that the company had no title to certain tracts of land embraced in the mortgage.</p> <p>The minutes of the company showed that there were $10,000 of the second mortgage bonds issued to C. L. Magee, $3000 to H. N. Keim, $75,000 to R. L. Jones, and $112,000 were charged to collateral security account; they were disposed of as folloAvs: July 21st 1875 to O. T. Yerkes, Jr. & Co. $15,000, August 23d 1871 to R. L. Jones $80,000, February 15th 1872, to R. L. Jones $17,000 ; the minutes did'not show that $80,000 or any other amount of bonds had been issued to Ahl.</p> <p>By the testimony of W. H. Kemble it appeared that at a conference between himself and others, Jones being one, having reference to the purchase of the company’s property, Jones said that Ahl had received $100,000 for the property sold by him to the company, and was to receive $80,000 in the second mortgage bonds, which he had refused to receive as second mortgage bonds so long as the preceding judgments remained unsatisfied.</p> <p>The master decided that by reason of Ahl’s conduct above stated and his having permitted the rights of others to intervene, he had concluded himself from any claim through the $80,000 of bonds.</p> <p>The master further decided that his own duty was limited solely to distribution among the holders of the bonds under the decree of foreclosure, and that whilst he could determine the ownership of the bonds he could not “ a,djust the accounts of simple debt creditors.” He therefore disallowed Ahl’s claim.</p> <p>The master further reported as to the bonds transferred for the' use of the two Reading banks and Bushong & Brothers, as collateral security, that the whole amount of money for which they had been pledged had been advanced to Jones for the company from time to time on his notes. The notes having become due and the company being unable to pay, these creditors agreed to give an extension of time and forbearance for three years upon receiving the second mortgage bonds of the company as collateral, at the rate of 75 per cent, for the whole indebtedness; $97,000 of the $112,000 of the bonds received by Jones were therefore delivered to H. H. Muhlenberg as trustee for these creditors. The master held that this forbearance was of itself a good consideration ; he found that these creditors had no notice of Ahl’s' claim on these bonds, and were holders for value without notice of any adverse claim.</p> <p>As to the judgment of Boas and the Farmers’ National Bank of Reading: they were entered on bonds and warrants of attorney each conditioned for the payment of the sum of $32,894.82 in two years, without interest; the bonds had been executed in pursuance of a resolution of the directors and placed in the hands of of A. L. Boyer, a broker of Reading, to whom they were made payable; he disposed of them to Boas and the bank for $25,000 each; and assigned two judgment bonds to them respectively on the 8th of June 1870 ; the money'was paid by Boas and the bank to Boyer and placed in his bank to the credit of the treasurer of the company; tbe treasurer paid the $50,000 to Ahl by checks on Boyer’s bank before the judgments were entered. Jones had spoken to E. P. ‘Boas and H. S. Eckert in relation to the negotiation of these bonds, but the terms were arranged by Boyer. E. P. Boas received $3000 and H. S. Eckert $5000, for their services in this transaction. The master decided that the holders were entitled to distribution o.n the whole amount of these judgments.</p> <p>The indebtedness of the company to the Kensington Bank, with interest to the day of sale, was $34,970.50 ; the $65,000 of bonds held by them to secure this, were delivered to them at the time the loan was.made by Jones ; $50,000 being his private property and $15,000 being part of the $112,000. The master held that this bank was entitled to distribution on the whole amount of the bonds held by them.</p> <p>Keim, who claimed on three bonds, was secretary of the company ; his salary was $2500 in arrear; the treasurer with the consent of the president accepted a proposition of Keim to purchase three bonds at 83J per cent.; the treasurer gave Keim his check for $2500 and he returned it to him in payment for the bonds.</p> <p>There was no evidence to contest the claim of the Allegheny National Bank to the ten bonds held by them ; nor that of Rice to the $25,000 of bonds held by him.</p> <p>' The master found that there was no fraud, and reported the same distribution as in his first report.</p> <p>Exceptions were filed on behalf of the stockholders; by Ahl and by Rice to the master’s second report.</p> <p>The matters excepted to sufiiciently appear in the following opinion of the court at Nisi Prius, delivered by Mr. Justice Gordon, December 26th 1873.</p> <p>“Adopting the principle developed in the case of McElrath v. The Pittsburg and Steubenville Railroad Co., 18 P. E. Smith 37, that the master, in a case like the present, cannot go behind the decree of foreclosure to ascertain the bona fides of the parties to the mortgage, but is limited to a distribution of the fund raised by the sale, we cut off many of the exceptions to the master’s report, and also much of the testimony as irrelevant. Thus, it matters not in the present inquiry, that Jones’ contract for the construction of the road should have been $400,000 instead of $600,000, that the stock subscriptions were gotten on false representations, or that Mr. Ahl was to get too much or too little for his land, or that through misrepresentation he was induced to exchange a good security for one that was worthless. None of these things, nor the intention of the director's in executing this mortgage, can now be inquired into ; the day for this has gone by. What remains for us to do is simply and only to distribute the fund among those to whom of right it belongs. As there will be no residue after the bondholders and lien creditors are satisfied, it is clear that the stockholders have no interests that need consideration.</p> <p>“ Undoubtedly the master should consider and settle the titles of adverse claimants to the bonds; hence we may first consider the exceptions of Daniel Y. Ahl, who alleges that the master erred in not awarding to him the proceeds of some eighty of these bonds or rather the sum of $80,000 produced by the sale under the mortgage. If we understand the general idea contained in his exceptions, it is that the second mortgage was made chiefly for the purpose of securing to him the balance of the purchase-money resulting from his sale of lands to the company, and that therefore he had a vested right in the mortgage from the date of its execution. That the tender of the bonds was only a recognition of his pre-existing right, and that his refusal to accept them did not either extinguish or weaken that right. But we hold his position to be untenable in this, that the mortgage was executed, not to secure his purchase-money, but to secure two hundred bonds of $1000 each. How could the agreement of the company to give him eighty of these bonds create a specific lien in his favor in the mortgage itself ? Suppose the bonds had never been tendered to him; that the company, in violation of their agreement, had refused to deliver them to him, could he, nevertheless, have recovered his $80,000 through a scire facias on the mortgage? We think not. It does seem to us that in such case his remedy must lie, either in covenant upon the agreement, or in a bill to rescind that agreement and restore him to his rights under his former contract. We are at a loss to discern, as alleged by his very eminent counsel, how his case is bettered by his steadfast and persistent refusal to accept of these bonds. It looks to us that this was a fatal mistake that is now past remedy. It is no doubt true that the company acted in bad faith in permitting the judgments Nos. 2Q3 and 204, August Term of the Common Pleas of Franklin county, to precede the execution of the mortgage, but neither does this help Ahl’s status with reference to that, mortgage.</p> <p>“ It is then to us clear that the master was right in refusing to let him in upon this fund.</p> <p>“We turn next to the exceptions of John Rice. He complains of the master’s ruling in that he allowed the full face of the claims of Augustus F. Boas and the Farmers’ Rational Bank of Reading (the two judgments already referred to), because these claims were in part made up of usurious interest; in other words that these judgments were purchased by the claimants at a usurious discount from one A. L. Boyer, a broker of Reading, to whom they had been executed by the company for the purpose of discount. Now whether these were bonfl fide purchases from Boyer, or were taken with the knowledge that they were confessed to him without consideration from him, and for the mere purpose of sale, matters not. Creditors cannot inquire into the good faith of the transaction, unless it covers a fraud intended to affect them. On this the authorities cited by the master are full and to the point. It is also settled that an auditor has no power to open or set aside a judgment. To him it is conclusive, and if creditors would attack it they must resort to the proper court for that purpose.</p> <p>“ The next exception by Mr. Rice presents the complaint that the master should only have allowed to the Reading Savings Bank Bushong & Bro., and the Kensington National Bank, the face of their claims with interest, and not the full amount of the bonds which they hold only as collateral security. No doubt this would be so were these collaterals held directly from this Iron and Railroad Company, or from Jones as their agent. But as the master has found, and we think rightly, from an examination of the testimony, that these bonds were issued to Jones for his own security, as well as that of others, in raising money for the purposes of this company, and that he will not be paid by the bonds which he' received and deposited with these parties, we cannot, under such circumstances, regard the equity of subsequent creditors as superior to that of Jones, and must therefore leave these bondholders to account to their principal for any balance that may be over the amount due to themselves.</p> <p>“ With reference to the bonds held by the Alleghany National Bank, no such circumstances have appealed as would throw upon them the burden of proof of showing that they received them in the ordinary course of trade and for a valuable consideration. These 'bonds are made payable to bearer, they pass by delivery, and may be sued by the holder in his own name, so that, though not technically negotiable paper, they are practically so for all purposes of commerce. * We cannot, therefore, upon the mere motion of a disappointed creditor, compel the holder of such bonds to prove that they were obtained from the company for a valuable consideration.</p> <p>“Next came the three bonds held by Henry M. Keim. It is not denied that the company received full consideration for these in the way of his services as secretary. But it is alleged that the treasurer had no authority from the board of directors to issue them. We might answer this exception by directing attention to the fact that the company has found no fault with that act, and it behooves not a stranger to call it in question; nevertheless, whether the acts of the treasurer in this matter were authorized or not at or before the time it was transacted, they were acquiesced in by the directors, and thus ratified: Kelsey v. The Bank, 19 P. F. Smith 429.</p> <p>“ We deem it unnecessary to dwell upon the remaining exceptions, as they are substantially disposed of in what has already been said. In conclusion, we think the master has properly disposed of the fund in controversy.</p> <p>“ Report confirmed, and decree to be entered accordingly.”</p> <p>Ahl and Rice appealed from the decree at Nisi Prius to the court in banc.</p> <p>Ahl assigned.for error:</p> <p>1. Not decreeing to him a sum sufficient to pay him as owner of eighty second mortgage bonds.</p> <p>2. Awarding to the two Reading banks and Bushong & Brother an amount sufficient to pay the eighty bonds, they not being their owners.</p> <p>3. Awarding to the Kensington Bank a sum exceeding their debt.</p> <p>4. 5. Awarding to A. F. Boas and Farmers’ Bank of Reading each $33,908.30.</p> <p>6. Awarding to John Rice a sum sufficient to pay his twenty-five bonds.</p> <p>Rice assigned for error: confirming the.report of the master, and directing distribution to be made as stated in the report.</p>

<p>1. An Act of Assembly authorized a county to subscribe for stock in a railroad company, and to pay for it in the bonds of the county, bearing interest, to be issued for that purpose, the county to make provision for the payment of interest as in other cases of its bonds, and the railroad company to receive bonds at par as cash. Held, that the act contemplated an exchange of the stock as a full equivalent for the bonds, and that the county should occupy no better position than other stockholders.</p> <p>2. The county contracted with the company to take stock to be paid for by the bonds, and the directors covenanted that the company should, during the time the bonds had to run, pay interest on the stock to the pérsons who might hold the bonds in discharge of their interest. The act of incorporation did not authorize the company to pay interest on stock. Meld that the contract with the county was ultra vires.</p> <p>3. The powers of a corporation must be found in its- charter or arise by necessary implication from it.</p> <p>4. The directors in contracting for a bonus to the county on its subscription, were, independently of the Act of Assembly, acting without authority, and the corporation was not bound.</p> <p>5. A corporation as well as a natural person may repudiate a contract executed by an agent without authority.</p> <p>■6. Fowler v. Scully, 22 P. F. Smith 456 ; Pittsburg & Connellsville Railroad Co. v. Allegheny, 13 Id. 126, followed.</p>

<p>Error to the District Court of Allegheny county: Of October and November Term 1874, No. 120.</p> <p>This was an action of ejectment brought, July 8th 1873, by Peter McGee against Manus McLaughlin and others for a lot of ground in the Fifth Ward, Pittsburg.</p> <p>Both parties claimed under Catharine Briclde, who, on the 17th of January 1867, by writing under seal leased the premises to defendant for five years from the first of April then next, at the rent of $500, payable semi-annually in advance, and the defendant covenanted that he would not sublet any of the premises for an eating-house or tavern, nor sell or suffer any liquor to be sold there, “ under a penalty of $500 * * * in the nature of rent in addition to the amount above mentioned.” It was further agreed that if any part of the rent should be unpaid after it became due, the lessor might at her option consider the defendant a tenant at will, and after five days’ notice re-enter, &c., “ using so much force as is necessary to that end.” The lease also authorized the lessor to distrain, &c., and the exemption laws were waived. It was further agreed that if the defendant should continue to occupy the premises after the expiration of the lease, with the consent of the lessor, the terms of this lease were to continue to be binding.</p> <p>On the 26th of August 1871, Mrs. Brickie conveyed the premises to the -plaintiff in fee, and on the same day assigned to him the lease to the defendant.</p> <p>The defendant alleged in his abstract of title that early in the year 1867 he made a parol agreement with Mrs. Brickie for the purchase of the premises for $10,000, if they were sold at any time during the lease, and that plaintiff knew of this agreement before his purchase; that about October 1869, by a parol agreement, Mrs. Brickie renewed the lease to defendant for five years after the expiration of his first lease; and relying upon that agreement he made valuable improvements, took possession of the premises and held them under it; by proceedings by the plaintiff, under the Landlord and Tenant Act of December 14th 1863, before Alderman Strain, to obtain possession of the premises from the defendant, and on the above stated title of the plaintiff, judgment was rendered for the defendant. The plaintiff commenced an action of ejectment against the defendant in the Court of Common Pleas of Allegheny county for the recovery of the premises on the same title; a verdict was rendered against the plaintiff, and judgment entered on the verdict for the defendant.</p> <p>The case was tried, April 13th 1874, before White, J.</p> <p>The plaintiff gave evidence of his title as above set out; also notice from plaintiff to defendant to quit, served December 19th 1871. He gave other evidence not important to notice, and rested.</p> <p>The defendant then offered in evidence the record of the proceedings before Alderman Strain, as mentioned in his abstract of title, for the purpose of showing that the notice to quit was intended for those proceedings, and to show that the rights of the parties as landlord and tenant had been adjudicated by a competent tribunal, and were unappealed from.</p> <p>This was objected to by the defendant, rejected by the court, and bill of exceptions sealed. •</p> <p>He then gave in evidence the record of an ejectment, that mentioned in his' abstract of title, commenced May 11th 1872, in the Court of Common Pleas, in which the plaintiff’s title was given in evidence as here, the same defence set up, and a verdict and judgment rendered for the defendant.</p> <p>The defendant gave evidence also in support of that part of his case which related to the parol agreements mentioned in his abstract of title; and the plaintiff gave evidence in rebuttal.</p> <p>The first point of defendant, which was refused, was:—</p> <p>The verdict and judgment in the case between the same parties in the Court of Common Pleas of Allegheny county, in evidence, being for the same land, and upon the same title, is conclusive of the rights of the parties, and their verdict should be for the defendant.</p> <p>His second point, which was affirmed, was:—</p> <p>If the court decline to charge as requested in the first point, then the court is requested to charge that said judgment and-verdict are persuasive evidence in favor of the defendant to be considered by the jury, and the burden of proof is on the plaintiff to overturn the same.</p> <p>The court further instructed the jury:— * * *</p> <p>“ I say to you, that the verdict in the former trial ought to have very little influence upon your minds in this trial. [It is your sworn duty, as jurors, to take the law of this case from me, without regard to what a judge may have said or a jury decided in another court. If I err, the parties here have their remedy. If you should disregard my opinion and take the law from some other judge the party, injured would have no remedy. You should decide this ease upon the testimony before you, that is your sworn duty. What the testimony may have been in the former case we do not know, although it has come out here that one great point of defence in the former trial was, that no notice had been given of the termination of the lease. It seems that the notice given in evidence here was not in evidence at the former trial. It appears that that was one ground of defence there, and possibly might have influenced the minds of the jury, and hence determined their verdict. I merely.suggest this as one reason why the former verdict should not be conclusive with you, and in fact should have very little influence upon your minds. The other counsel for the defendant, suggested] the true and only influence that verdict should have upon you, that is, if your minds were equally balanced, and you did not know on which side to give your verdict, based upon the testimony in this case, the verdict of a former jury, if you believe that they had the same questions and the same testimony before them, might have some influence upon you in determining your verdict. That is all.” * * *</p> <p>The verdict was for the plaintiff.</p> <p>The defendant took a writ of error; he assigned for error:—</p> <p>2. The rejection of the record of the alderman’s proceedings.</p> <p>4. The refusal of the defendant’s first point.</p> <p>8. The above extract from the charge of the court, omitting that part enclosed in brackets.</p>

<p>1. The plaintiff and others were the owners of the steamboat Bayard. At a meeting of the owners, neither the plaintiff nor other than owners being present, the boat was set up at “ auction” and struck down to Coursin, who paid the purchase-money to the treasurer of the company. That meeting resolved to build a new boat. The plaintiff filed a bill against his fellows for a receiver and an account, and also to restrain them from breaking up the boat; he moved for a preliminary injunction, which was refused. They broke up the Bayard, and put her materials and machinery into a new boat, the Rees. A new company was formed, of which the plaintiff and one of defendants and an owner of the Bayard were not members, and in which there were other members. The Rees was afterwards sold. The plaintiff filed a supplemental bill against same defendants, alleging he was part owner, and the acts of defendants made them his trustees. Held, that the supplemental bill was defective in including as defendant one not a member of the Rees company, and omitting the others, who had become members after filing the original bill.</p> <p>2. All the owners of the Bayard but the plaintiff received their shares of the purchase-money. Held, the sale did not divest his ownership in the Bayard; he had a right to object to breaking up the Bayard, to insist on a fair sale under the order of a court of equity and an account of the proceeds and the earnings.</p> <p>3. Plaintiff did not become part owner of the Rees because the materials and machinery of the Bayard were used in her construction.</p> <p>4. If the' materials of one are united to those of another by the labor of the latter, who furnishes the principal materials, the property in the produce is in the latter by the right of accession.</p> <p>5. If one repairs his vessel with another’s materials, the property in the vessel is in the former ; if he builds the vessel from the keel with another’s materials, the whole belongs to the owner of the materials.</p> <p>6. The property in a vessel follows the keel.</p> <p>7. “Where there is a confidential relation — as principal and agent — the principal may compel the agent to account for profits he has made of his property.</p> <p>8. If a partner take the property of the firm and trade with it on his own account, he is answerable to his fellows for the profits.</p> <p>9. Part owners óf a vessel are tenants in common, not partners; the interest of each could be sold only by himself or his agent.</p> <p>10. If one tenant in common of a chattel sell it, it is an ouster and conversion, and his co-tenant may follow it in the hands of a purchaser, or recover its value from the wrongdoer.</p> <p>11. The proceeds of sale of a chattel by one tenant in common cannot be followed by a co-tenant into any business into which the wrongdoer may invest them and hold him to account for the profits.</p>

<p>1. A trustee’s compensation is not to be fixed by any inflexible rule ; but depends on the circumstances of each case.</p> <p>2. For the sale of real estate 2J per cent, has generally been regarded as proper compensation.</p> <p>3. Heirs on whom real estate descended were all sui juris and made a contract for its sale. A trustee under his own advice was appointed by the Orphans’ Court, under the Act of April 18th 1853, to make a private sale according to the contract, merely to pass the title. The trustee claimed 5 per cent, commissions on $37,740. The Supreme Court fixed this compensation at $500.</p> <p>4. A trustee who vexes the heirs and delays distribution by an exorbitant claim for commissions, is not entitled to the same compensation as one who makes a reasonable claim.</p> <p>5. Part of the fund was payable at the death of a widow who was to receive the interest during life. The trustee to sell was appointed by the court below, trustee to hold the fund, upon giving new security. Held, that although under the facts a more judicious selection might have been made, the Supreme Court would not interfere.</p>

<p>1. A testator devised real estate to his wife for life, and after her death to his five children in fee; one of them, a son, married after the death of the testator and died intestate, leaving a widow, hut no children. The widow of the testator afterwards died. Held, that, under the Act of April 8th 1833, the widow of the son had an interest in the real estate, and under the Act of March 29th 1832, had a right to partition. '</p> <p>2. The son having 9 vested remainder, after the death of the widow of the testator, it was subject to all the incidents which the statutes have stamped on real estate, as fully as if it had vested in possession in the son before his death.</p> <p>3. Shoemaker v. Walker, 2 S. & B. 554, distinguished.</p>

1, of Allegheny county: Of October and November Term 1875, No. 94. This was a scire facias sur mortgage by R. II. Davis to the use, &c., against H. Haupt, with notice to Edwin G. Booth, Welcome White andB. S. Heath, terre-tenants. The writ was issued December 3d 1874, returnable on the 1st Monday (7th) of same December. To this writ the sheriff returned “ Nihil.” On the 27th of January 1875 an alias scire facias was issued returnable to the 1st Monday of February next.

<p>1. Lucas having a suit pending for an unliquidated claim, assigned it to Reed as collateral for a previous debt; he afterwards assigned part of it to Coon in payment of a previous debt. Coon immediately filed his assignment of record with the case. Lucas recovered judgment in the suit, and afterwards, on the same day, Reed filed his assignment of record, and the money was subsequently paid to him by the defendant in Lucas’s suit. In an action by Coon against Reed, to recover the amount assigned by him, Held-, that Reed having received the money in good faith, Coon had no equity superior to his. '</p> <p>2. The record of a pending suit is not a place where the assignment of the claim in suit may be recorded.</p> <p>3. When a judgment is the evidence of a debt, the record of it is the proper place to give notice of its assignment.</p> <p>4. Prior in tempore, potior in jure, is the law of the assignment, if there be no equity otherwise to defeat it.</p>

<p>1. Hays sold the coal under a tract of land to Horner, with certain privileges through his adjoining lands; he subsequently sold the coal under part of' those lands to Watson. Held, that any privilege, &e.,_ directly conferred by the deed of sale to Horner, or by necessary construction or implication arising from it, dominated any conflicting right in the conveyance to Watson.</p> <p>2. The owner of a mine has a right to mine his coal in the ordinary way, whilst he does no injury to an adjoining mine, except that which arises necessarily from the removal of the coal. Per Stowe, J.</p> <p>3. Such owner would not be liable for the collection and flow by such mining of subterranean water upon lower mines._ Id.</p> <p>4. The upper owner would be liable for such mining, whether in the ordinary way or not, as would introduce foreign water from the surface by reason of the roof falling in, which water would not have flowed in if the roof had remained undisturbed and compact after coal was removed. Id.</p> <p>5. Horner, in excavating his coal, removed the ‘‘ribs" — composed of coal _which supported the roof of the mine, causing the surface to sink and crack, so that water from the surface flowed into his mine, and thence into the mine of Watson. Held, that he was liable to Watson for any injury done by such flow of water, although resulting from the approved, established and customary practice of mining in that region and without negligence.</p> <p>6. In this state a custom that in mining the owner may remove the “ ribs” and allow the surface to sink, is not reasonable nor of sufficient continuance to be good.</p> <p>7. A claim destructive of the subject of the grant cannot be set up by any usage.</p> <p>8. Jones v. Wagner, 16 P. P. Smith 429, followed.</p>

<p>1. Keyes, an oil-dealing firm, made an attorney in fact to make and endorse notes in conducting its business. Dilworth, who was factor for the firm, drew a note for his own accommodation to the other of the firm, which, without the knowledge of either of the firm, was endorsed in the firm name by the attorney, and discounted by an unincorporated banking association, in which Dilworth was a stockholder, and which had discounted business paper of the firm for him. Held, that Dilworth, being a partner in the bank, it was not a bonS, fide holder of the note, protected against Dilworth’s improper use of it.</p> <p>2. Keyes had given Dilworth two notes in payment of indebtedness to him, which were discounted by the same bank and matured about the time the accommodation npte was given. The money was paid to Dilworth to take up these notes; he did not so use the money, but appropriated the accommodation note to their renewal. Held, that the bank was visited with his knowledge and with his fraudulent use of the last note.</p> <p>3. McClurkan v. Byers, 24 P. F. Smith 405, followed.</p>

<p>1. The Acts of April 4th 1868 and April 28th 1871 (formation of railroad corporations), do not authorize the construction of a railroad such as is contemplated by the lateral railroad laws.</p> <p>2. The object of the Act of 1868 is to vest in voluntary associations the powers which had previously been given only by special acts of incorporation, and applies to railroad companies in the sense in which that term had been commonly used.</p> <p>3. Nothing in the Act of 1868 affected the legislation as to lateral railroads.</p> <p>4. The supplement of April 1871 is applicable to settled communities, where the population requires more than the primitive means of conveyance and transportation, but not to promote private fortunes or develop private pi'operty.</p> <p>5. The power of eminent domain is conferred on citizens only when some existing public need is to be supplied or some present public advantage to be gained, but not with a view to contingent results, dependent upon the success of a projected speculation.</p> <p>6. The railroad in this case was not for public use within the meaning of the Acts of 1868 and 1871.</p> <p>7. Under the Act of June 19th 1871, a court of equity has jurisdiction to inquire whether a railroad chartered under the Act of 1868 possesses the franchises it claims, and if not, injunction is the appropriate remedy for the wrong.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, No. 103.</p> <p>This was a scire facias on a municipal claim issued by the city of Allegheny against James Wilson, to April Term 1874 of the court below.</p> <p>The claim was filed, March 13th 1874, for $900.90 against a lot beginning at the corner of the Perrysville road and a sixteen-foot alley, and along said road westerly 165 feet to lot of Simon Drum, &c.</p> <p>The road referred to as the Perrysville road is the “ Allegheny and Perrysville Turnpike Road,” constructed under an Act of Assembly of February 27th 1849, Pamph. L. 299, subject to the provisions of the General Turnpike and Plank-road Law of January 26th 1849, Pamph. L. 10; 2 Br. Purd. 1429. The act of incorporation authorized the construction of a turnpike or- plank-road from the north line of the city of Allegheny at the end of Federal street, to extend towards the borough of Erie seven miles, with power to extend it further, and with power to erect gates and collect tolls when three miles of the road should be completed; the road was constructed as a plank-road, and tolls collected up to the time of this suit.</p> <p>By Act of April 9th 1867, Pamph. L. 979, the boundaries of Allegheny City were extended so- as to take in territory in which Wilson’s property was situate, and to embrace about two miles or more of the plank-road; the property against which the claim is charged is on the plank-road about three-quarters of a mile from the old city line. By Act of April 17th 1869, Pamph. L. 1168, the councils of Allegheny City were authorized to purchase the rights of all the various chartered companies for the portion of their roads lying within the limits of the city, upon such terms as might be agreed upon.</p> <p>The Act of March 31st 1870, Pamph. L. 717, consolidated the previous acts relating to Allegheny City, and included within its limits all the territory which then constituted the city. All ordinances, regulations, &c., in force in the city, and not inconsistent with the act, were to remain in force until altered, modified or repealed by councils. By Act of April 1st 1870, Pamph. L. 751, the councils were authorized to lay out, widen, extend, &c., the streets of the city, to grade, pave, &c., the same, and to levy and collect the’value of property taken or damages done by assessment on the properties benefited thereby, and to levy and collect the cost of grading, paving, &c., from the owners of property abutting on “said streets,” &c., thus improved; the assessments levied to be first liens on the properties assessed.</p> <p>On the 13th of May 1871, Pamph. L. 818, an act was passed enacting:—</p> <p>Sect. 1. That whenever the councils of the city of Allegheny shall deem it for the public interest that the said city should control so much of any turnpike or plank-road as lies within the limits of said city, and that the same should be freed from toll, then the said councils may direct the city solicitor to institute proceedings therefor, and the said solicitor shall present a petition to the Court of Quarter Sessions setting out the facts; whereupon said court shall appoint three discreet citizens, who shall proceed to view and appraise so much of any turnpike or plank-road as lies within the limits of said city, and report to said court what amount shall be paid by said city therefor; said court shall have power to approve, to modify, correct, or quash the report of said viewers, or appoint new viewers, with like power to approve, modify, correct, or quash their report.</p> <p>Sect. 2. That whenever the amount to be paid shall have been finally determined, and the same paid, or secured, or tendered to the officers of said turnpike or plank-road, then so much thereof as lies within the limits of said city shall pass under the control of said city, as a street thereof, and all toll-houses shall be removed therefrom outside the city limits.</p> <p>In 1872 the councils passed an ordinance for opening and grading Buena Yista street, which connected with the plank-road; to make an easier grade at the connection it became necessary to lower the grade of the plank-road at that point. An agreement was therefore made between the city and the plank-road company, by which the company “gives consent to the entry upon and grading of said road for said purposes by said city, as per profiles in the city engineer’s office, and said city agrees On its part to carry on the work on said road so as not to interrupt travel, and to replace the planks removed by said city in as good condition as when removed, and to grade said road at both sides of its intersection with the grading of said street, so as to prevent any abrupt change in the grade of said road. And it is further agreed that the city will assume all responsibility in case of accidents to travel on account of said grading, or in case of action for damages by property holders from change of grade of plank-road.”</p> <p>On the 17th of April 1878, the councils passed an ordinance for grading the plank-road between the head of Buena Yista street and the east line of Wilson’s property, a distance of 330 feet. The city took up the planks, graded the road and replaced the planks; the grade was reduced in front of Wilson’s property and was not an injury but a benefit to him. No proceedings-were had under the Act of 1871 to purchase or condemn any part of the plank-road.</p> <p>The case was tried December 7th 1874, before White, J.</p> <p>The plaintiffs having given evidence to sustain their claim, rested.</p> <p>The defendant testified that he paid toll every three months ; there was a toll-gate on each side of his property; when he moved to the property it was not within the city limits; the' road company kept up the road and the gates as before the city was extended. There was a walk laid by the city on his property in 187 0, for which he paid an assessment.</p> <p>Plaintiffs, in rebuttal, gave evidence that defendant saw the grading every day as it was going on and made no objection to it; also that defendant frequently requested the city engineer to change the grade of the road opposite his property, saying that if the grade were changed it would be a great favor to him ; under the approval of the councils the grade was changed according to his request; the change increased the expense. There was evidence that he, with another property owner adjoining him, requested that the plank-road might be graded, and in consequence of their request the agreement was made with the plank-road company.</p> <p>The court charged :—</p> <p>“ This case turns on the- question of law whether the city had power to grade the planlc-road and assess the cost upon the abutting properties, under the general Act of Assembly providing for the improvement of the streets of the city. There are no material facts in dispute. There is some conflict in the testimony as to what Mayor Drum and the defendant said in the street committee, in the way of requesting the work to be done. There is no allegation or testimony that the defendant presented a formal petition to the councils or that committee, asking to have this grading done. Nor is there any evidence or even allegation, that he promised to pay for it. He requested the grade to be lowered at his property, which increased the expense, and perhaps it may be inferred that most, if not all, the work done opposite to his property was done in consequence of what he said to members of the street committee. But if the city had no legal right under the Acts of Assembly to grade this portion of the plank-road, and assess the properties abutting thereon with the cost, I cannot see that such request on the part of defendant would give the city a right to file a lien therefor. This is a sci. fa. on a municipal lien, and must be sustained by an Act of Assembly authorizing it. The defendant might be liable to the city in an action of assumpsit, and yet the city might not have the right to enforce the collection of her claims by a municipal lien.” * * *</p> <p>The court further instructed the jury: “ That the plaintiffs are entitled to recover the amount of the assessment on defendant, with interest, subject to the opinion of the court in banc on the question of law reserved, to wit: whether the city, under the Acts of Assembly and the city ordinances in evidence, and the undisputed facts in the case, had a legal right to grade the plank-road from the head of Buena Yista street to the east line of defendant’s property, and assess the cost thereof upon the properties abutting thereon.”</p> <p>The verdict was for the plaintiff for $1012.05.</p> <p>The court in banc afterwards entered judgment on the verdict for the plaintiff on the reserved question.</p> <p>The defendant took a writ of error.</p> <p>The error assigned was, entering judgment for plaintiff on the reserved point.</p>

<p>1. A partnership was formed in which a father and son jointly held one-fourth ; the son died, leaving a widow (his administratrix) and minor children. Under the terms of the partnership the father took the son’s share of the fourth. In 1851, shortly after his death, the widow, as administratrix, the children having no guardian, made a settlement under seal with the surviving partners, including the father, by which credits of the son on the firm books were given up to the survivors and a balance agreed to. In 1863, after the children came of age, they filed a bill against the administratrix and survivors for an account by the survivors. Held, that the administratrix had the power to make the settlement, and in the absence of fraud the settlement was binding on her and the children, and the account was refused.</p> <p>2. The consideration of an agreement may be proved aliunde by parol if necessary, and may be shown to be different from that expressed.</p> <p>3. A stale claim is regarded with disfavor in a court of equity.</p>

<p>1. Kleber leased a piano to Wilson for a rent payable quarterly; the lease to terminate at the option of Kleber, if the rent were not paid ; with privilege to Wilson to buy, and if purchased all sums paid for rent to be deducted from the price, Kleber still to retain the owenrship. The piano being in possession of Wilson was sold for taxes against him. Held, that the sale did not divest Kleber’s ownership.</p> <p>2. No declarations of Wilson or the acts of other parties in attempting to treat the piano as his could affect Kleber.</p> <p>3. The property remained in bailment and was not. liable to a sale for Wilson’s debt or for his taxes.</p> <p>4. Possession under a mere bailment for hire is not a constructive fraud.</p>

2, of Allegheny county: Of October and November Term 1875, No. 118. This was an action of assumpsit, brought December 5th 1874, by Thompson Bell against Josiah Reamer, Wesley Wilson and others, partners under the name of “The Mahoning Iron Company.” The writ was served on Reamer and Wilson, and returned “Nihil” as to the other defendants.

<p>1. After notice by a landlord to a sheriff of a claim of rent from goods levied on has been accepted and acted on by him,’ it is too late to except to its sufficiency.</p> <p>2. A landlord verbally agreed with a tenant for the occupancy of a house at a fixed rent, and the tenant entered; he frequently declined to sign a written lease but continued in possession ; near the end of the term he executed the lease dating from the agreement, and on the next day his goods were levied on under an execution. Held, that the landlord’s claim for rent could not be sustained on the written lease, but could be on the previous verbal agreement and the possession under it.</p>

Allegheny county: Of October and November Term 1875, No. 115. This was an action of assumpsit commenced June 2d 1871, by Sterling Bonsall against Simon Beymer.

<p>Error to the Court of Common Pleas, No. 2, of Allegheny 'county: Of October and November Term 1875, No. 72.</p> <p>This was a scire facias on a municipal lien for $934.50, entered January 8th 1874, by the Mayor of Allegheny, on a lot of ground on Rolla street, of which lot James Reed was the owner, for grading, &c., of that part of Rolla street on which the lot abutted. The scire facias was issued against Reed to January Term 1874 of the court below.</p> <p>The Act of April 5th 1870, Pamph. L. 751, authorized the city to grade, &c., any street, &c., and collect the cost from owners of property abutting on the street, notice to be given of the assessment, that errors or mistakes might be corrected, and after correction the assessment to be delivered to the controller, and if not paid within thirty days, he to hand it to the city solicitor, who should file a lien against the particular lot, and collect the amount assessed, with five per cent, attorney’s commission.</p> <p>On the 4th of April 1873, the city entered into a contract with Frederick Gwinner, by which he agreed, “ at his own expense, to furnish all the materials and work necessary for the grading of Rolla street from, &c., and to grade and pave the same in accordance with the plan and specifications to be furnished by the city engineer, the whole work to be performed, &c., under the directions and to the satisfaction of the city engineer and the committee on streets, on or before July 1st 1873.” The contractor to be paid “ out of the collections under the Acts of Assembly in such case made and provided, of the money due therefor from the property fronting and abutting on said street, &c., according to the estimates or measurements certified to by the city engineer,” his decision to be “final and conclusive. * * * The disposition of the surplus earth and materials and everything relating to the work herein undertaken by (Gwinner) shall be in accordance with existing ordinances of the city.”</p> <p>The defendant filed an affidavit of defence, setting out that the plaintiff, in grading the street, graded and cut down his land, “ and the eartS, stone, gravel and dirt taken from his said land and from said Rolla street, was by the plaintiff cast, &c., on the defendant’s land adjoining, &c., which resulted in damage to the defendant, to an extent far exceeding the plaintiffs’ claim,” &c.</p> <p>The case was tried January 7th 1875.</p> <p>The plaintiffs gave evidence of their claim and rested.</p> <p>The defendant then made the following offer of evidence :—</p> <p>“ To show, by the witness on the stand, that F. Gwinner was the contractor with the city, the plaintiffs, for the grading of Rolla street, in front of defendant’s property, and that he, said Gwinner, by himself and servants, deposited the earth, rock and gravel removed in grading said street, upon the property of the defendant abutting on said street, against the consent of the defendant, and that the defendant has sustained damage far in excess of the amount claimed in this case, to be followed by evidence showing that the money claimed in this case, when collected, is to be paid to said F. Gwinner, the contractor, and that the plaintiff is acting as the agent of the said F. Gwinner, in attempting to collect the money for said grading.”</p> <p>This was objected to by the plaintiff because under the contract in evidence the .city contracted with F. Gwinner to do the work, and is not responsible for his 'negligence or trespasses, but defendant’s action is against him alone; and further, that the claim in the contract relative to payment to him was only intended to define the time of payment, and did not make him a substantial party to the proceedings.</p> <p>The court rejected the offer and sealed a bill of exceptions.</p> <p>The court charged the jury that the defendant had shown no defence to the claim in this case, and that their verdict should be for the plaintiff for the amount of the claim.</p> <p>The verdict was for the plaintiff for $1065.96.</p> <p>The defendant took a, writ of error; he assigned for error the rejection of his offer of evidence and the instruction of the court.</p>

<p>1. In a rule of court, the 1st sect, was that if plaintiff should file (1.) “A specification of the items of his claim and a statement of facts necessary to supp’ort it,” the items and statements not denied by defendants in his answer should he taken as admitted.- (2.) If the specification and statement were not filed with the praecipe, the plaintiff should give defendant ten days’ notice and defendant should within ten days file his answer. (3.) This rule to 11 apply to a specification of set-off and statement of defence,” defendant in ten days after filing the same to notify plaintiff. (4.) If plaintiff failed to comply with any of the requirements, non pros, to he entered by the prothonotary; if defendant failed, judgment for default of a plea and affidavit of defence to be entered against him. Held, that the provision for notice by defendant was to regulate the practice when a set-off was interposed ; not when the defence was a denial, &c., of plaintiff’s claim.</p> <p>2. Courts of original jurisdiction have an inherent right to establish and enforce rules to regulate their practice.</p> <p>3. The expediency of a rule, in ordinary cases, is not a question for the Supreme Court; the regulation of its practice is for the sound discretion of every court.</p> <p>4. The construction of their rules by the lower courts is ordinarily conclusive ; their discretion will be interfered with only where, wrong is man ifest.</p> <p>5. Dailey v. Green, 3 Harris 118 ; Mylin’s Estate, 7 Watts 64, recognised.</p>

Writs of error to the Court of Oyer and Terminer of the County of Alleqheny. Of October and November Term 1875. No. 128 and 129. _ _ At the December sessions 1874 of the Court of Oyer and Terminer, William Murray and Frederick Myers were indicted for the murder of .Gotthold Wahl; the murder was charged in the indictment as having been committed in the perpetration of a robbery. There was no question in the Supreme Court arising from the facts in the case.

<p>Error to the Court of Oyer and Terminer of Allegheny county: Of October and November Term 1875, No. 194.</p> <p>Philip Murray was indicted in the court of Oyer and Terminer of Allegheny county for the murder of James White, and tried April 13th 1875, before Ewing, P. J., and Kirkpatrick, J., of the Court of Common Pleas, No. 2, of the same county.</p> <p>Two jurors drawn were challenged by the Commonwealth for cause, and the challenge sustained; a hill of exceptions was sealed for the prisoner.</p> <p>The matters considered and decided by the Supreme Court do not require a statement of the evidence in the case, further than appears in the charge of. the court below.</p> <p>The District Attorney submitted the following points for the Commonwealth:—</p> <p>1. When, a deliberate purpose to kill or do great bodily harm is ascertained, and there is a consequent unlawful act of killing, the provocation, whatever it may be, which immediately precedes the act, is to be thrown out of the case and goes for nothing, unless it can be shown that this purpose was abandoned before the act was done.</p> <p>2. If the jury find from the evidence that before the killing the prisoner had formed the deliberate intent and purpose to take the life of James White, no subsequent provocation which deceased might have given, would either excuse the prisoner or reduce the grade of his offence, unless the jury are satisfied from the evidence that the said intent and purpose were abandoned by the prisoner before the killing.</p> <p>6. To make homicide excusable on the ground of self-defence, the danger must be actual and urgent. No contingent necessity will avail. And when the pretended necessity consists of the as yet unexecuted machinations of another, the defendant is not allowed to justify himself by reason of their existence. In cases of personal conflict, also in order to prove such defence, it must appear that the party killing had retreated, either as far as he could by reason of some wall, ditch, or other impediment, or as far as the fierceness of the assault would permit him. If it appears that the conflict was in any way premeditated by the defendant, the defence can no longer be set up. It must be proven that the assault was eminently perilous.</p> <p>The court, Ewing, P. J., said:—</p> <p>“ These points are all affirmed, subject to explanations of the general charge.” *</p> <p>The court charged: * * *</p> <p>“ All homicide is presumed to be malicious until the contrary appears by the evidence. That' is, all homicide, as a general rule, is malicious, unless when justified by the command or permission of the law — excused on account of accident or self-defence — or alleviated into manslaughter — by .being the involuntary consequence of some act not strictly lawful, or occasioned by some sudden and sufficiently violent provocation without time to cool. And when the killing by the defendant has been proven, all these circumstances of justification or excuse, or alleviation, it is incumbent on him to make out to the satisfaction of the jury. Just as when the Commonwealth, by proving the homicide, having raised a presumption of murder at common law or of the second degree, must prove in addition a specific intent to take life to entitle it to a verdict of murder in the first degree.</p> <p>“ To excuse a homicide on the ground of self-defence the defendant must satisfy you that the conflict was not of his own seeking ; that he was in danger of great bodily harm, or honestly believed that he was in such danger, and that either he retreated as far as he safely could under all the circumstances, place of conflict, situation and condition of the parties at the time, or could not safely retreat and that the danger was actual and urgent. If the killing was thus done, it is excusable. Put if not so done, it is not excusable. If the conflict was not premeditated on the part of defendant, but was accidental, and the shooting not in self-defence, but in the heat of passion the fatal shot was fired, without cooling time, it would be manslaughter. If the defendant, with a purpose to have a quarrel with White, went armed with his pistol to the mill where White was at work, and sought White, and met him intent on this purpose, and in the conflict he killed White, it was murder. And if he thus killed White wilfully and premeditatedly, that is with a specific intent to take life, it would be murder of the first degree.</p> <p>“ The intent of a man is to be inferred from his words, but perhaps more safely from acts; where the words and acts accompany each other and are consistent, they form satisfactory proof of intent. If a man uses a deadly weapon in such a manner as would ordinarily cause death, and especially where immediately preceded by declarations that he intends to take life — and death ensues — it is a fair inference that he intended to take life.</p> <p>“ Apply these principles to the evidence in this case.</p> <p>“ It does not seem to admit of much doubt that James White was shot at the time and place charged, and that he died on the 11th day of September 1874. And if you believe the testimony of the physician, there can be but little doubt that he died from the effects of the wound, and that it was necessarily fatal. Nor is it denied that defendant inflicted the fatal wound. It appears from the testimony on both sides, that on the 24th day of August the defendant and the deceased had a difficulty. The testimony of the Commonwealth is, that on the same evening the defendant made threats, in presence of Mrs. McGruigen, that he would have the life of White. And that a few days afterwards he, to his brother in their room, said he would have the life of White before he left Pittsburg. The brother positively denies that this last threat was made in his presence.</p> <p>“ It seems that the morning of the shooting, Michael Murray and White had a quarrel, at a part of which defendant was present. On the part of the Commonwealth it has been testified-that the defendant then made a threat against White. The brother says he heard no such threat. Michael Murray testifies that White had previously made threats against him and his brother Philip, and that he had told Philip of the threat; and you have evidence as to the relative physical power of the defendant and deceased. Next, the Commonwealth has produced testimony of a serious threat made by the defendant at the corner of Fourteenth and Pike streets, half a square from the place of shooting, and a short time before. Witnesses for the defendant testify that they were present at the time and heard no such threats. The witnesses testify that Philip Murray remained after the others left; and that he was there a short time before the shooting. The testimony on both sides shows that Philip Murray had not been employed at this mill for some time before, but was then employed at Shoenberger’s mill. So far as appears he had no business at this mill where White Avas employed. Philip Hurley testifies that a short time before the shooting he saAV the defendant walking back and forth past the gate leading into the mill. Soon after — he does not fix the length of time — he heard a shot, looked around and saw White Avith his hands to his face, and blood spurting from his mouth, and retreating, Murray following ten to twelve feet away, and that Murray fired three or four shots after that. Other witnesses testify to hearing the shot, looking around and seeing White and Murray in about the same position as testified to by Hurley. Michael Brown testifies that he saw Murray entering the gate, going along the track, and in a minute or two he heard a shot; immediately turned round and saw.Murray and White eight or ten yards apart, White, turning away, put up his hands and retreating, Murray, pursuing him, shot three or four times.</p> <p>“ On tbe part of the defendant, Thomas Ryan testifies that he was accidentally at the mill, and although not having spoken to any one in the mill, either before or after, he saw Philip Murray coming in on the track, and the first he saw of White was that he was close to Murray, and struck at him, missing him, then struck again, hit Murray in the breast. That Murray then backed, drew a revolver and shot White, and except as tó the distance of the parties apart, he describes the after shooting substantially as the other witnesses. This testimony of Ryan is very important; if this meeting of Murray and White was accidental and not premeditated, it would then become very important for you to determine as to whether or not Murray was excusable in the shooting in the honest belief that it was necessary to protect himself from great bodily injury. But if you find that Murray, in pursuance of a previously formed intention, came there armed with his loaded pistol to provoke a conflict with White, and in pursuit of this intent met White, and the conflict took place, and he then killed White, it is murder; and if he had a specific intent to take life, it is murder in the first degree.</p> <p>“Wbat conclusions do you draw from the evidence? What facts are proven ? If you have a reasonable doubt either as to the guilt or the degree of guilt, the defendant is entitled to the benefit of that doubt. A doubt, to work acquittal, or to reduce the grade of offence, must be serious and substantial, not the mere possibility of a doubt.” * * *</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:—</p> <p>1, 2. Allowing the challenges of the jurors by the Commonwealth.</p> <p>3. Affirming the Commonwealth’s first point.</p> <p>4. Affirming the Commonwealth’s second point.</p> <p>5. Affirming the Commonwealth’s third point.</p>

<p>Appeal from the Court of Common Pleas, No. 2, of Allegheny county: In Equity: Of October and November Term 1875, No. 132.</p> <p>The bill in this case was filed November 29th 1873, by James Kelly against the city of Pittsburg and others, officers of the city, to restrain them from exercising municipal authority over any part of Wilkins township, in pursuance of an ordinance passed by the councils of the city for that purpose.</p> <p>By the first section of an Act of Assembly, passed May 10th 1871, Pamph. L. 718, it was provided “ that the city of Pittsburg shall be and is hereby authorized to admit into said city, any borough, townships or portion of townships in the county of Allegheny, adjacent to said city, upon the following conditions: In case of any township qr portion thereof, the application shall be made by a petition of at least three-fifths of the taxable inhabitants of the township or the portion thereof desiring admission ; and if only a portion of said township desires to be admitted, the petition shall set forth the boundaries of the district desiring admission; the said petition shall in either case be accompanied by an afiidavit of a reputable citizen of said district, that the persons signing the same are taxable inhabitants, and constitute, as he verily believes, three-fifths of all the taxable inhabitants of said district. And upon presentation of the petition as above provided, it shall be lawful for the councils of the said city of Pittsburg to pass and adopt, in manner provided by law, an ordinance admitting said township, or portion thereof, into said city.”</p> <p>On the 9th of December 1872, a petition purporting to be signed by 216 taxable inhabitants of Wilkins township was presented to the councils of Pittsburg; the petition was accompanied by the afiidavit of Henry Swift, “ a reputable citizen of the district desiring admission,” that the petitioners were taxable inhabitants, and as he believed constituted “ three-fifths of all the taxable inhabitants of the district.”</p> <p>The matter was referred to the city solicitor, who gave the councils his opinion in writing that the affidavit of Swift fully complied with the provisions of the Act of May 10th 1871; he further advised that if a remonstrance were filed denying the allegations of the petition, the councils should appoint a committee to ascertain the facts. A remonstrance having been filed, councils appointed a committee as advised. A majority of the committee reported in favor of granting the prayer of the petition; the minority reported adversely. A second committee was appointed who reported unanimously recommending the passage of the ordinance as prayed for.</p> <p>On the 12th of May 1873, an ordinance was passed incorporating as the Thirty-seventh ward of the city of Pittsburg, a portion of Wilkins township, whose boundaries were particularly set out in the ordinance.</p> <p>The plaintiff averred in the bill, the passage of the ordinance, the purpose of the city to exercise municipal authority over the district proposed to be annexed to it; that he was a citizen residing within that district and the owner of a large body of land in it; that of the territory included in the boundaries, a very large proportion was agricultural, used for farming purposes, and was sparsely populated ; he denied that three-fifths of the taxable inhabitants of the district had petitioned councils to admit the territory described as part of the city of Pittsburg, and averred that the ordinance was void. He also charged that the action of councils in the premises was collusive, false and fraudulent.</p> <p>The city in its answer, averred, amongst other things, that the "committees of councils to whom the matter was referred, after “ a very full and fair examination of the facts in the case, hearing parties in favor of and opposed to said annexation, and James Kelly, the plaintiff in the bill, appearing before them, with counsel, did, on February 17th 1875, report that the requisite three-fifths of the taxable inhabitants of said district had petitioned for annexation,” and that in pursuance of that report the ordinance was enacted by the councils.</p> <p>They denied all collusion and fraud.</p> <p>A replication was filed, and J. M. Stoner, Esq., was appointed examiner and master.</p> <p>He took a large amount of testimony, the most of which was taken with reference to the allegations of the bill that three-fifths of the taxable inhabitants of the district did not sign the petition, and that action of the councils was collusive and fraudulent.</p> <p>The master, after an elaborate discussion of the testimony, and the law bearing on the questions, reported : * * *</p> <p>“The fact that three-fifths of the taxable inhabitants of the district, on December 9th 1872, had not signed the petition for its admission, was admitted by the counsel for the respondents. They, however, contended that the complainant was not entitled to the relief sought, and that he had not pursued the appropriate remedy. It was said the writ of quo warranto was the form of remedy that should have been adopted. * * *</p> <p>“ Whilst admitting also that where the law requires an application by a given proportion of the taxable inhabitants of a district, to authorize certain measures with respect to such district by any tribunal, and particularly by a special tribunal, as the councils of a city, the fact that such proportion have petitioned is essential to give jurisdiction; and, unless that fact can be established, the whole proceedings are void from beginning to end, * * * and that the Act of May 10th 1871 made a petition by the prescribed number indispensable to give the councils jurisdiction; they alleged that the affidavit of Henry Swift, made in compliance with that act, was, by the terms of the act, a judicial finding that three-fifths of the taxable inhabitants of the district had signed the petition, and that the complainant was concluded by it. * * *</p> <p>“ The Act of May 10th 1871 contains no provision that the affidavit prescribed by it shall conclude any one as to the question whether three-fifths of the taxable inhabitants have petitioned. And, in the absence of an express provision to that effect, it would seem to be an unwarranted construction of that act, to hold that the mere affidavit of a reputable citizen that the required three-fifths had, as he believed, petitioned for the admission of the district, precludes all inquiry into the fact itself, or as to the accuracy of the affiant’s information. Certainly if that was contemplated by the legislature, it should have been clearly expressed. * * * It must be assumed that when the legislature provided that the application for admission into the city by any adjoining district should be made by a petition of at least three-fifths of the taxable inhabitants thereof, it intended to give parties interested the benefit of the restriction thereby implied, by denying the councils the power to incorporate such district with the city upon the application of a less number; and it is inconsistent with this intention to suppose that it has given to the ex parte affidavit of a single individual the effect of a judicial finding that the requisite number have applied. If this had been contemplated, it is fair to infer, not only that it would not have been left to inference, but that the act would have contained some provision for notice to parties interested. * * *</p> <p>“ The master, therefore, holds that the affidavit of Henry Swift, filed with the councils of the city of Pittsburg, is not to be treated in these proceedings as a judicial finding of the facts alleged in it; that the petition presented to said councils was not a compliance with the Act of May 10th 1871, and did not confer jurisdiction upon them; and that the ordinance passed by said councils, on the 12th day of May 1873, in pursuance of said petition, is null and void.”</p> <p>The following special findings of facts are submitted by request of counsel:—</p> <p>1. That on the 9th day of December 1872 a petition was presented to the councils of the city of Pittsburg for the admission of Wilkins township into the city of Pittsburg, accompanied by the affidavit of Henry Swift, a reputable citizen of the district; that the persons signing the same were'taxable inhabitants of said district, and constituted, ás he verily believed, three-fifths of all the taxable inhabitants of that district.</p> <p>2. That said affidavit was made by said Swift, after comparison of said petition with the tax duplicate of the township, and after consultation with certain persons whom he believed to be well-informed citizens of the district, and was made in good faith and in full belief that the facts set forth were true.</p> <p>3. That said petition was referred by councils to the city attorney, who advised that it was regular in form.</p> <p>4. That councils afterward referred it to a committee to ascertain the fact whether said petition was signed by three-fifths of the taxable inhabitants of the district, which committee heard the evidenee offered by petitioners and remonstrants, the complainant in this case being present at some of the meetings, and represented by counsel, and after several meetings^and a full consideration of the matter, reported to councils that said petition was signed by the requisite number of the taxable inhabitants of the district.</p> <p>5. That it was again referred to a second committee, by whom a similar report was made.</p> <p>6. That councils afterwards passed an ordinance admitting said districts.</p> <p>7. That the action of councils’ and its committees was had in good faith, and was not fraudulent or collusive.</p> <p>8. That on the 9th day of Hécember, A. D. 1872, the number of taxable inhabitants within the limits of said district was 428.</p> <p>9. That the required number of petitioners, as provided by the Act of May 10th 1871, is 257.</p> <p>10. That the whole number of petitioners, who are taxable inhabitants, is 205, showing a deficiency of fifty-two.</p> <p>11. That the complainant, and a considerable number of other taxable inhabitants of said district, presented remonstrances against the annexation of said district to the said councils of the city of Pittsburg, prior to the passage of said ordinance.</p> <p>12. That the committees of said councils had before them the petition for the admission of said district into the city, a list of taxable inhabitants made by Henry Swift, and another list of taxable inhabitants made by John Rice; and that there are on said petition thirty-three names not on Swift’s list, and there are on Rice’s list fifty-one names not on either said petition or said Swift’s list. ■ •</p> <p>13. That said councils did not order a poll of said district, but that the said list of John Rice was made with their permission and at their request.</p> <p>14. That there is no evidence before the master that any municipal improvements have been made in said district by the city of Pittsburg.</p> <p>15. That said district contains about 1500 acres of land, of which about 1000 acres are used and occupied as farm land; that .a portion of said farm lands lie between the villages of Wilkins-burg and Edgewood; and that the value thereof, as real estate, depends not so much upon their adaptation to the purposes of agriculture as upon their proximity to the city of Pittsburg.</p> <p>The master recommended the form of a decree directing an injunction against the city.</p> <p>Exceptions were filed to the master’s report, which were overruled by the court, who decreed :—</p> <p>“That the ordinance of the city of Pittsburg, entitled an ordinance to provide for the admission into the city of a portion of Wilkins township, passed by the councils thereof, on the 12th day of May, A. D. 1875, is null, void and of no effect; that "a writ of injunction issue against the defendant, the city of Pittsburg, perpetually restraining the said city from levying taxes upon the lands of the plaintiffs mentioned in the bill, and situated in that part of the township of Wilkins described in the bill, and from collecting any city taxes assessed thereon, and restraining the said city of Pittsburg from exercising corporate or municipal authority, in pursuance of the aforesaid ordinance, over any part of said Wilkins township described in the plaintiff’s bill; that the bill be dismissed as to all the defendants, other than the city of Pittsburg, and that the defendants, the city of Pittsburg, pay the costs of suit,” &c.</p> <p>The city of Pittsburg appealed to the Supreme Court, and assigned this decree for error.</p>

<p>1. State remedies against fraudulent debtors are not suspended by the operation of the Bankrupt Act.</p> <p>2. A defendant was arrested as a fraudulent debtor on a warrant under 0p jujy p2th 1842, and brought before a judge, who after hearing directed him to enter into bond with surety for his appearance at an adjourned hearing June 18th. He did not appear at that day. The docket had this entry : “June 18th — defendant not appearing is called and surety called and bond forfeited.” Held, that the entry was not a record and not evidence.</p> <p>3. The judge was not acting as a court of record, and had no power to adjudge the bond forfeited.</p> <p>4. The proceedings under a warrant of arrest under the Act of 1842, are not part of the proceedings in the cause, they are merely incidental and collateral.</p> <p>5. The sheriff or constable is not required to make return into the office or to the court; he executes the warrant by arresting the defendant and bringing him before the judge or keeping him in custody till he is discharged.</p> <p>6. In a suit on the bond against the surety ; evidence that defendant had been stricken down by sickness at a distance from the place of hearing, &c., so as to be prevented from appearing at the time fixed, that he appeared there an soon as he was able, after his recovery: Held to be admissible.</p> <p>7. If the condition of a bond become impossible by the act of God, the obligation is discharged.</p> <p>8. When the act to be performed is of a purely personal character, which can be done only by the party himself, the act of God in producing sickness and insanity, as well as death will excuse performance.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, No. 245.</p> <p>This was an action of ejectment brought May 1st 1875, by Blanche O. Robins and others, against John Quinliven, for a lot of land on Townsend street, Pittsburg.</p> <p>The parties filed a case stated, in which the following facts were agreed to:—</p> <p>John Marshall died in January 1857, seised of the lot in question, leaving a will which was proved January 19th 1857, and by which he devised as follows:—</p> <p>“ I give, devise and bequeath unto my daughter, Mary Robins, for and during her natural life, and after her death to her issue and their heirs for ever, in the proportions to which they would be entitled under the intestate laws of Pennsylvania respectively, and free, clear and discharged from any or any future husband, iny dwelling-house and lot, adjoining the house and lot willed by me to Anne Greenough, and said house and lot now willed to Mary Robins, being in the possession of Theodore Robins and family.”</p> <p>Theodore Robins was the husband of Mary IP. Robins the devisee; he died in 1865. Mary H. Robins died in November 1873, intestate, but leaving five children, the plaintiffs in this suit. On the 2d of February 1875, the administrator, &c., of Mrs. Robins, by virtue of an order of the Orphans’ Court, sold to the defendant the lot in question as her property, and the sale was duly confirmed by the court.</p> <p>The question for the consideration of the court was whether Mary H. Robins took a life-estate or a fee under the will of John Marshall.</p> <p>If the court should be of opinion that she took but a life-estate judgment to be entered for the plaintiffs; if a fee, judgment to be entered for the defendant.</p> <p>.The court below entered judgment for the defendant.</p> <p>The plaintiffs took a writ of error, and assigned for error, that the court entered judgment for the defendant.</p>

2, of Allegheny county: Of October and November Term 1875, No. 222. This was an action of covenant, brought April 26th 1872, by D. B. Stewart and E. S. Cook against J. C. Bedell.

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, No. 190.</p> <p>This was an action of assumpsit, commenced September 22d 1874, by PI. H. Clark and Michael Berger and Maria Berger, his wife.</p> <p>The declaration was :—</p> <p>“Michael Berger and Maria Berger, his wife, of said county, were summoned to answer H. H. Clark, M. D., of a plea of trespass on the case, whereupon the said plaintiff, by John Barton, his attorney, complains, for that whereas the defendants on the 17th day of September, in the year of our Lord 1874, * * * were indebted to the said plaintiff in the sum of $500, for the price and value of goods then and there sold and delivered by the plaintiff to the defendants, at their request. And in the sum of $500 for the price and value of work then and there done, and materials provided for the same by the plaintiff for the defendants, at their request. And in the sum of $500 for money then and there lent by the plaintiff to the defendants, at their request. And in the sum of $500 for money found to be due from the defendants to the plaintiff, on an account then and there stated between them. And in the further sum of $500 for services rendered by said plaintiff, as a physician and surgeon, to a minor son of the said defendants, at the special instance and request of the said Maria Berger above named, &c. And, whereas, the defendants * * * in consideration of the premises, respectively, then and there promised to pay the said several sums of money, respectively, to the plaintiff on request,” &c.</p> <p>’ -The plea was non-assumpsit, &c. Mrs. Berger also pleaded her coverture.</p> <p>The question in the case was as to the liability of the separate estate of the wife under the declaration, and the evidence, for the medical attendance of the plaintiff upon the son of the defendants.</p> <p>The case was tried May 5th 1875, before Kirkpatrick, J.</p> <p>The plaintiff testified himself, and gave evidence by several witnesses of the services for which he' claimed to be paid, and the circumstances under which they were rendered. The services commenced in August 1869 and ended May 16th 1870. He had been called into the house by the father to examine the arm of their son which was broken or otherwise injured ; the son came to the plaintiff’s office, sometimes with his mother and sometimes by himself; most of his conversation was with Mrs. Berger, but he never had any contract with her. Upon the occasion when he was called by the father to look at the boy’s arm, the father said he thought the boy would get well without anything being done to the arm ; she said something must be done with it.</p> <p>Under objection by the defendants and exception, the court admitted the testimony of Samuel Oabert for the plaintiff, viz.:—</p> <p>Q. Did or did not Mrs. Berger ever make any statements to you about laying out a plan of lots, and commencing to make sales for the purpose of paying Dr. Clark his bill, or words to that effect and meaning ? The time is supposed to have been August 1874?</p> <p>■ A. She stated, when we had that conversation — she said that she intended to pay Dr. Clark whenever she has the money ; that is all'what I know about it.</p> <p>Q. Was there anything said about laying out lots ?</p> <p>A: Well, it was spoken about them lots at that time, but there was none sold, so far as I know; there was no money coming in.</p> <p>Q. Now, the date of this conversation ?</p> <p>A. I cannot remember that. It was some time last summer.</p> <p>On cross-examination:—</p> <p>Q. You say she just said she wanted to get some money to pay Dr. Clark?</p> <p>A. She said that whenever she got some money she would pay it.</p> <p>Q. Where did she say this ?</p> <p>A. It was in her saloon where she lived, at East Liberty.</p> <p>Q. That was along last summer ?</p> <p>A. Yes, sir.</p> <p>Q. Was Michael Berger present?</p> <p>A. No, sir, not that I know of.</p> <p>Also of Mrs. Catharine Clark, the wife of the plaintiff:—</p> <p>Q. Did you ever hear her say anything about paying the doctor ?</p> <p>A. The last time she was in the office, she had her son with her.; I don’t know what his ailment was then. I could not give you the day of the month or the day of the year. It was when they were grading Penn avenue. It is between four and five years. She was going out, and the doctor said, I have done so much for your family, it is time you would pay me now; I don’t want to sue you, and she said, I pay you, you lose not one cent. That is all I heard her say.</p> <p>On cross-examination:—</p> <p>Q. That was after the doctor had prescribed for the boy ?</p> <p>A. I don’t know what he had done.</p> <p>Q. As they were leaving, the doctor made this remark to her ?</p> <p>A. Yes, sir.</p> <p>Q. You never saw them there since ?</p> <p>A. No, sir.</p> <p>Q. You don’t know that the doctor has performed any service since ?</p> <p>A. Nó, he did not perform any services since.</p> <p>The verdict was for the plaintiff for $200.</p> <p>The defendant, Mrs. Berger, moved in arrest of judgment, for the following reasons:—</p> <p>1. Under the declaration in the case, the plaintiff is not entitled to judgment against her.</p> <p>2. There is no evidence in the cause sufficient to sustain a judgment as against her.</p> <p>The court overruled the motion and entered judgment on the verdict.</p> <p>The defendants took a writ of error and assigned for error :—</p> <p>1, 2. The admission of the evidence objected to.</p> <p>3. Not arresting the judgment for the first reason assigned in the motion.</p> <p>3. Not arresting the judgment for the second reason assigned.</p>

<p>1. The city of Brie, under authority of the legislature, constructed a canal basin in Presque Isle bay, on the north side of the city, and built a pier on the north side of the basin, parallel with Front street — which is on the north side of the city on the margin of the bay — and 1200 feet from it; the city sold lots in the basin, reserving a strip 100 feet wide, for a causeway from Front street across the basin to the pier. By Act of May 1st 1861, the city was authorized to grade, pave, &e., the streets and charge the cost on the lots abutting on the streets so improved. Afterwards the city constructed and macadamized a causeway of twenty feet wide in the centre of the reserved strip, from Front street to the pier, leaving a space of forty feet on each side between the causeway and the basin lots covered with water. Meld, that the causeway was not a street within the meaning of the act and the basin lots were not liable for the cost.</p> <p>2. The act referred to ordinary streets, which, as generally understood, are a public highway', in a town between houses or lots for travel of all persons.</p> <p>3. The term street can in no sense be applied to a water-way in a lake running between water-lots into the bay.</p>

<p>Error to the Court of Common Pleas of Brie county: Of October and November Term 1874, No. 188.</p> <p>This was an action of debt upon a recognisance of bail in error, commenced September 3d 1873, by The Thompson Oil Company, to the use of Elizabeth A. Brown, executrix, Conrad Brown, deceased, John H. Walker, James C. Marshall and P. E. Marshall, against Orange Noble, Ambrose Snow, Theodore Wright and L. L. Lamb•, the writ was returned “ Nihil ” as to Wright and Snow, but Wright appeared to the action.</p> <p>The declaration set out the recognisance taken December 10th 1867, by the defendants, before the prothonotary of the Court of Common Pleas of Erie county, by which they acknowledged to owe The Thompson Oil Company $54,000, upon condition that Snow, Burgess, Wright & Woods, plaintiffs in error, would prosecute with effect, &c., a writ of error in a certain action in which The Thompson Oil Company, on the 25th of November 1867, recovered against them a judgment for $26,723.50. The declaration averred that on the 27th of November 1867, The Thompson Oil Company, “ for a full and valuable consideration, to wit, for money due” by the company to Conrad Brown, assigned to Brown the sum of $23,723.50 of the judgment, and also “for a full and valuable consideration, to wit, for professional services as attorneys at law,” assigned to John H. Walker, James C. Marshall and Francis F. Marshall, $3000 of the judgment; it further averred that the judgment was affirmed by the Supreme Court on the 28th of November 1868, but the plaintiffs in error had not paid The Thompson Oil Company, nor the assignees, the amount of the judgment.</p> <p>On the 13th of December 1873, the defendants pleaded, that on the 25th of January 1868, The Woods & Wright Oil Company, a coi-poration of the state of New York, claiming to be a creditor of The Thompson Oil Company to the amount of $75,000, petitioned the Supreme Court of that state that a writ of attachment, in the nature of foreign attachment, might issue to attach the debt due by Snow, Burgess, Wright & Woods to The Thompson Company; that The Woods & Wright Company having filed their bond for restitution of any money, &c., which might be collected by them under the attachment in case the defendants should defend and succeed in their defence, an attachment was issued and was served on Snow, Burgess, Wright & Woods, then resident in the state of New York, by which the debt due by them was, according to the law of New York, and the practice of the Supreme Court of that state, attached for the benefit of The Woods & Wright Company; that the original process was duly served on The Thompson Company according to the laws of New York and practice of the Supreme Court of that state, by advertisement and sending a copy of the writ by mail to The Thompson Company at Erie, Pennsylvania, and by serving a notice personally on the president at Erie; that on the 24th of September 1868, final judgment was rendered against The Thompson Company in favor of the Woods & Wright Company for $56,251.88, in accordance with the laws and practice aforesaid.; that by reason of the attachment and the laws of New York, The Woods & Wright Company acquired a lien on the claim of The Thompson Company against Snow and his co-defendants and garnishees, in the Supreme C.ourt of New York, who became absolutely liable to the plaintiffs in the attachment for the amount owing by them to The Thompson Company; that execution was issued on the judgment and the claim owing to The Thompson Company levied on; that when the defendants gave notice of the attachment they had no knowledge of the assignment of the judgment, and had no notice of it until February 23d 1868; that after the execution against defendants was issued, and before any farther step was taken in the proceedings in New York, the defendants, on the 23d of October 1868, gave notice to The Thompson Company and the assignees of the judgment, and authorized them to use the names of the defendants in any legal proceedings in any court “ for the purpose of protecting the original defendants and garnishees from the necessity of paying said execution that the defendants as garnishees did further refuse to pay the amount of the judgment of The Thompson Company against them in discharge of the execution, alleging that it had been assigned as set forth in the declaration; and thereupon, in accordance with law and practice aforesaid, “ on proceedings for relief supplementary to said execution,” the Supreme Court of New York, on the 18th of December 1868, appointed W. M. Tweed, Jr., receiver of the “ indebtedness from the garnishees to said Thompson Oil Company ;” that the receiver commenced suit against the garnishees in the nature of a feigned issue, to try whether the garnishees were entitled to the protection they claimed by reason of the assignments of the judgment; that the receiver made his claim for the amount of the judgment in favor of- The Thompson Company; that the garnishees answered setting up the assignment and averring that the amount of the judgment was due to the assignees, under the facts in the case, which were set out in the answer; that the court referred the claim and answer to Du Bois Smith, Esq., “ to hear and determine the facts and the law arising upon them ;” the facts were proved to the satisfaction of the referee, and on the 29th of July 1869, he decided, as matter of law, that the assignments by The Thompson Company were no bar to the recovery by The Woods & Wright Company against the garnishees, and that there was due by the garnishees to that company the sum of $30,168.60, being the debt due by them to The Thompson Company with interest. The Supreme Court of New York confirmed the award of the referee, and judgment was entered against the garnishees in favor of The Woods & Wright Company for $20,334.11; that notice of the entry of the judgment was served on the counsel of the garnishees, and they caused a copy of the notice to be served on the assignees of the judgment on the 24th of September 1869 ; that no steps were taken by the assignees to have the judgment set aside or to protect the garnishees ; that they afterwards, and before the commencement of this suit, paid The Woods & Wright Company the amount of the judgment recovered by them in New York, “and thereby satisfied the claim against the defendants in this suit on the recognisance on which suit is brought.”</p> <p>“ And this the defendants are ready to verify by the said record, wherefore they pray judgment if the said plaintiff ought to have or maintain their aforesaid action against them.”</p> <p>On the 17th of December 1873, the plaintiffs craved oyer of the record of the Supreme Court of New York, set up in the defendants’ plea; oyer was granted January 10th 1874 ; and copies of the records referred to in the plea were filed.</p> <p>The exemplification of the record showed the following proceedings :—</p> <p>On the 25th of January 1868, a warrant issued by a judge of the Supreme Court of New York for the county of New York, on the affidavit of The Woods & Wright Oil Company, to attach the property of The Thompson Oil Company to satisfy the plaintiff’s demand of $75,000 with costs, &c. The sheriff returned to the warrant that on the same day he levied “ upon property within said county belonging to the defendant, and that said property consisted of an indebtedness to said Thompson Oil Company” from Snow, Burgess, Woods & Wright, for which The Thompson Company had recovered a judgment of $27,000. Alfred D. Snow, president of The Woods & Wright Company, on the 13th of February 1868, filed an affidavit that the defendants in the attachment could not be found in the state; that the defendants were a foreign corporation doing business in Pennsylvania, and one not incorporated by New York, and had property within that state, consisting of an indebtedness to them from Ambrose Snow, &c.</p> <p>On the 19th of February, upon this affidavit, a judge of the Supreme Court directed that service of the summons in the action be made on the defendants by publication in two newspapers in the city of New York designated by the judge, and that a copy of the summons and complaint be sent by mail to the defendant at Erie, Pennsylvania.</p> <p>The summons was that the defendants should answer the complaint to be filed in the case, and serve a copy of their answer on the plaintiff’s attorneys within twenty days after the service of the summons upon them, and should they fail to answer, the plaintiffs would “ apply to the court for the relief demanded in the complaint.”</p> <p>The complaint was filed February 21st 1868.</p> <p>It set out that the plaintiffs were a corporation organized under the laws of New York; that defendants were a corporation organized under the laws of Pennsylvania; that the plaintiffs, on the 16th of September 1864, were the owners of a large proportion (specified) of certain oil wells in Pennsylvania; that from that time the defendants had received the plaintiffs’ share of tbe product of the wells, amounting in value to $50,000, for which with interest the defendants demanded judgment.</p> <p>Proof having been made of the publication and of the sending by mail of the notice, &c., according to the order of the court, the matter was referred to a referee to take proof of the demand, &c., and report.</p> <p>The referee reported that there was due from the defendants, The Thompson Oil Company, to the plaintiffs, the sum of $55,433.61, for which, on the 25th of September 1868, judgment was entered in the Supreme Court of New York, for the county of New York.</p> <p>On the 13th of October 1868, execution was issued on this judgment, to which the sheriff returned “No personal or real property.”</p> <p>On the 18th of December 1868, on the affidavit of the attorney of the plaintiffs, that the execution on the judgment of the plaintiffs had been returned unsatisfied and thejudgment remained unpaid, and that Ambrose Snow and J. S. Burgess had property of the defendants, a judge of the Supreme Court issued an order to Snow and Burgess to appear at, &c., on the 17th of December 1868, to be examined concerning the same. On that day Ambrose Snow made affidavit, admitting the indebtedness, and alleging that they had been notified that certain parties, whose names he could not remember, claimed to own by assignment from The Thompson Company the judgment obtained in Pennsylvania against Snow, Burgess and others in favor of that company. In pursuance of that affidavit, W. M. Tweed, Jr., Esq., was appointed receiver of the indebtedness.</p> <p>By leave of the court, an action was commenced by W. M. Tweed, Jr., receiver of the Thompson Oil Company, against The Thompson Oil Company, Ambrose Snow, Joseph S. Burgess, T. Wright and W. J. Woods. The complaint;set out the action by the Woods & Wright Oil Company, against I “The Thompson Oil Company, a foreign corporation, formed under the laws of Pennsylvania,” the attachment, the levy under it of the indebtedness of Snow to The Thompson Company, the recovery of the judgment by The Woods & Wright Company against The Thompson Company for $56,251.88; the issuing of the execution and the sheriff’s return that it was unsatisfied; the refusal of Snow et al. to pay the indebtedness; the recovery of the judgment in Pennsylvania by The Thompson Company against Snow et al. for $27,000, “ which judgment is unpaid,” and that Snow et al. were still indebted to The Thompson Company, &c. The plaintiff demanded judgment against Snow et al. that they should pay to The Woods & Wright Company the amount of the judgment against them in favor of The Thompson Company.</p> <p>Snow et al. appeared in the suit by attorney and answered, admitting the allegations in the complaint; and averred that on or about the 23d of February 1868, and after the attachment had been levied, they received notice that the judgment in favor of The Thompson Company had been assigned by that company to J. C. & F. F. Marshall, J. H. Walker & Son, and Conrad Brown, who claimed to be the owners of the judgment; that the assignment was made before the service of the attachment, and that by reason of the assignments The Thompson Company had no claim against Snow et ah, upon which execution could be levied. By agreement between the attorneys of the plaintiffs in the attachment, and of attorney of Snow et ah, Dubois Smith, Esq., was appointed by the court, referee to hear and determine the issue between the parties.</p> <p>The referee reported, July 29th 1869, finding the facts, including the assignments of the judgment as before stated, and further found, as matter of law, that the assignments were no bar to the recovery by the plaintiffs against the defendants in the attachment for the amount demanded in this action; and that judgment should be entered for the plaintiffs against the defendants for $26,723.50, with interest, amounting in all to $30,168. Judgment was accordingly so entered in the Supreme Court of New York, July 30th 1869.</p> <p>Satisfaction for the full amount of the judgment and costs was acknowledged, August 4th 1869, by the attorney of the receiver.</p> <p>The following were the notices from Snow et al., referred to in the plea, not appearing in the New York record, but referred to in the opinion of Mr. Justice Mercur:—</p> <p>• “ New York, October 23d 1868.</p> <p>To The Thompson Oil Company, Gentlemen: — We hereby give you notice that on the attachment served on us as your debtors, on the 25th day of last January, at the suit of The Woods & Wright Oil Creek Company, of which you were duly informed by us,'on or about the 1st day of February last, judgment having been subsequently obtained against you, an execution has been issued against us on said judgment, from the Supreme Court of the state of New York, in and for the city and county of New York, under which our property has been levied on by the sheriff of the city and county of New York, to compel the payment to said Woods & Wright Oil Creek Company, your judgment creditors, and plaintiffs in said judgment of a sum of $26,723.50, said to be due by us to you, being the same amount for which you obtained judgment against us, in a suit instituted in the Court of Common Pleas of Erie county, in Pennsylvania, to May Term 1866, No. 114. If you can protect us from being obliged to pay said amount to the said sheriff, or the plaintiffs in said execution, either by having the judgment against yourselves set aside, or in any other way, please to do so.</p> <p>“We hereby give you authority to use our names, by making any application to the said Supreme Court in New York, or in any other way that may be necessary for the purpose of protecting us from such payment. If said execution is not set aside, we shall be obliged to pay to said sheriff or to the plaintiffs in the execution, the amount recovered by you in said suit at Erie, or so much thereof, if any, as it may be finally adjudged we are liable for.”</p> <p>“ New York, October 23d 1868.</p> <p>Conrad Brown, Esq., Sir: — Having recently understood that you claim to have an interest in a certain claim made by The Thompson Oil Company against us, on which suit was instituted in the Court of Common Pleas of the county of Erie, in the state of Pennsylvania, to May Term 1866, No. 114, we beg leave herewith to inclose to you a copy of the notice that we have sent to said Thompson Oil Company, and authorize you also to use our names in any application to said court in New York, or any other judicial tribunal, or in any other judicial proceeding for the purpose of relieving us from said execution and attachment. We shall be happy to give you any further information you may desire in relation to the matter.”</p> <p>The notices to the other assignees were in the same form.</p> <p>The plaintiffs demurred to the plea and assigned the following causes of demurrer:—</p> <p>1. Because the plea set up the judgment in New York and its payment to the plaintiffs on the attachment, without tendering issue on the allegation in the declaration, that the debt due from Snow et al. had been assigned for a valuable consideration by The Thompson Company to Brown, Marshall and Walker by assignment bond, fide before the issuing of the attachment.</p> <p>2. Because the plea set up the judgment and payment aforesaid, whilst it admitted that the garnishees, on the 23d of February 1868, long before the alleged payment, had knowledge of the transfer bond, fide to the use plaintiffs before the attachment.</p> <p>3. Because the plea set up the proceedings, judgment, &c., in New York, without alleging service of process on The Thompson Company, or their appearance in the suit in New York, or that The Thompson Company was, at the time of the issuing of the writ, owner of the debt due by Snow et al., and because the plea did not deny the matters alleged in the declaration that the debt attached was at the date of the attachment divested from said Thompson Company and vested in the use plaintiffs in this suit, and if the facts alleged in the plea are a rightful payment, the plea is but the general issue and should have been so pleaded; and no material fact is traversed nor alleged which avoids the allegation in the declaration.</p> <p>4. Because the plea set up a judgment without alleging that the plaintiffs were either parties or privies.</p> <p>5. Because the plea did not deny the only fact on which a material issue could be taken, to wit: whether the assignments had been make bond. fide before issuing the attachment; nor did the plea allege service of process upon The Thompson Company or appearance by them or service of summons or appearance by the assignees in the Supreme Court of. New York, but had tendered issue by their plea the fact that the garnishees gave a casual notice to The Thompson Company on or about February 1st 1868, and the fact that Snow et al. had no notice prior to the issuing of the attachment of the assignment of the claim and did not receive notice before February 23d 1868, each of these averments being immaterial.</p> <p>6. Because the plea set up the judgment, &e., averring that in the proceedings in the Supreme Court in New York, it was determined as matter of law that the assignments afforded no bar to a recovery by the plaintiffs in the attachment, without averring that the assignees, the use plaintiffs, were either parties or privies to the suit in New York or were legally before the Supreme Court there when such determination was made.</p> <p>7. Because the plea pleads a judgment in the Supreme Court in New York, in a foreign attachment by The Woods & Wright Company against The Thompson Company to attach a debt due from Snow et al., summoned as garnishees, averring that by the attachment The Woods & Wright Company obtained a lien on the debt, without averring that on the day of the attachment the debt was the property of The Thompson Company, or denying that the debt was, at the date of the attachment and before and since, the property of Conrad Brown et ah, by assignments from The Thompson Company, thus argumentatively averring, as a legitimate conseqence of the attachment, that the plaintiffs in the attachment could acquire a lien in foreign attachment against The Thompson Company, by attaching property which at the date of the attachment belonged to the use plaintiffs in this suit.</p> <p>8. The plea is informal, uncertain, defective and insufficient, in that it avers that the defendants, the garnishees, in the New York suit became liable to the plaintiffs in the attachment for the amount of their debt to The Thompson Company, and subject to have execution against them, and execution was issued against them on the judgment and levied on the debt due by them to The Thompson Company, which averments were unfounded in fact, as appeared by the New York record.</p> <p>9. Because the plea alleged an issue altogether a matter of law, to vyit: that the judgment in New York “ was obtained in accordance with the laws of New York and the practice of the Supreme Court there, a question on which no apt or material issue can be taken, the same plea stating all the facts and circumstances attending said judgment, giving the record thereof; the validity or invalidity of said judgment must be inquired of and determined by this court.”</p> <p>February 6th 1874. Agreement waiving informality of certificate of record filed.</p> <p>February 7th. A record from courts of New York, supplemental to that filed January 10th 1874, filed.</p> <p>March 24th 1874, the defendants joined in demurrer.</p> <p>On the 22d of June 1874, the judgment was entered for the plaintiffs on the demurrer, the court delivering the following opinion :—</p> <p>“ Our conclusions in this case are that the assignment by Thompson Oil Company to estate of Conrad Brown and others, transferred to the assignees, from the date of the assignment, all the interest of the legal plaintiffs in the judgment against Snow, Burgess, Woods and Wright, so that it was not attachable as the property of The Thompson Oil Company in the hands of said defendants after the date of said assignment; that the said assignees, being non-residents of the state of New York, and actually residents in and citizens of the state of Pennsylvania, at the time of the proceedings against the said The Thompson Oil Company in the Supreme Court in and for the city and county of New York, the situs of the property follows the residence of its then owners, and was never within the jurisdiction of the courts of the state of New York, nor were the persons of said assignees, and that therefore the said Supreme Court never acquired jurisdiction of either the persons or the property of the said assignees, and any judgment of said court affecting their rights was wholly ex parte and invalid, and that, therefore, as a final conclusion from the foregoing conclusions, the demurrer of the plaintiffs in this case to the plea of the defendants is good and sufficient in law. We therefore direct judgment to be entered on the demurrrer in favor of the plaintiffs, the amount to be liquidated from the record in the case by the prothonotary.”</p> <p>The judgment was liquidated at $37,597.98.</p> <p>The defendants took a writ of error and assigned for error :—</p> <p>1. Granting plaintiffs’ motion craving oyer of the record and ordering its production.</p> <p>2. Entering judgment for plaintiffs on the demurrer.</p>

<p>1. If the maker of a bill, note or check issue it in such condition that it may easily be altered -without detection, he is liable to a bonfi, fide holder who takes it in the usual course of business before maturing.</p> <p>2. The maker who executes and issues a note which by his own negligence invites tampering with, is not discharged from liability to an innocent holder.</p> <p>3. A maker is not bound to the bon& fide holder on a note, fraudulently altered, if he had used ordinary care and precaution.</p> <p>4. If there be no negligence in the maker, the good faith and absence of negligence in the holder cannot avail him.</p> <p>5. The paper in this case was part of a contract, so skilfully arranged that if a portion on the right end were cut off there would be left a negotiable note. Held, that whether there was negligence in the maker in executing such paper was for the jury.-</p> <p>6. Garrard v. Haddan, 17 P. F. Smith 82 ; Phelan v. Moss, Ibid. 59; Zimmerman v. Rote, 25 Id. 188, adhered to.</p>

<p>1. A railroad company allowed passengers to ride on way freight trains; under a rule, that “ passengers will not he carried on way trains unless they are provided with tickets. Way freights will not stop at stations where tickets are not sold to receive nor to let off passengers.” Held that the rule was reasonable.</p> <p>2. A passenger who had ridden on a way freight car before and after making the rule, without objection for want of a ticket, could not be removed from the car at a distance from the station, without proof of express notice or aetual knowledge of the rule.</p> <p>3. Under the circumstances in this case, putting up notices of the rule at the station houses was hot sufficient.</p>

<p>Appeal from the Orphans’ Court of Erie county: Of October and November Term 1875, No. 123.</p> <p>Eliza Clarke, the wife of Joseph S. Clarke, died in May 1.872, leaving her husband to survive her, but never having had any children. She died seised of a house and lot in North East, Erie county, but no other estate real or personal. By her will dated March 17th 1868, and proved March 14th 1874, she gave to her “sister Saloma Hebblewhite $1000 in cash;” the residue of her “ estate real and personal ” she gave to her husband. The executor named in the will renounced. On the 16th of June 1874, the husband filed with the register a paper, refusing to take letters of administration c. t. a., to which was added as follows :—</p> <p>“And further, said J.S. Clarke hereby declines accepting under said referred to will, and states his determination to hold his interest in the estate of his said deceased wife, as allowed by the laws of Pennsylvania. Joseph S. Clarke.</p> <p>On the 1st of December 1874, administration c. t. a. was granted to G. W. Colton.</p> <p>On the 4th of December 1874, Colton petitioned the Orphans’ Court for an order to sell the house and lot for the payment of the legacy of Saloma Hebblewhite. The court decreed a sale in accordance with the prayer of the petition. On the 4th of January 1875, the husband presented a petition remonstrating against the sale and praying that the order of sale might be revoked; the court granted a rule to show cause why the prayer of the petition should not be granted. On the 29th of March the court discharged the rule, but stayed the sale until there should be an opportunity for an appeal to the Supreme Court.</p> <p>J. S. Clarke appealed to the Supreme Court, and assigned the action of the Orphans’ Court for error.</p>

<p>1. An Act of May 1st 1861 authorized the councils of Erie to order any street to be paved, &c., and charge the expense against property abutting on the street, but such order should not be made, “ except on the petition of a majority of the persons holding property on the street.” The act further provided that when councils by ordinance directed the paving, &c., of a street, “ the question whether ¿'majority of the persons holding property thereon have petitioned therefor shall cease and determine.” On a scire facias .on a municipal claim for paving a street, under an ordinance of councils, Held, that evidence that there was not a majority of such property holders signing the petition was inadmissible.</p> <p>2. There was a proviso in the act, “ That no ordinance for any of the above-named purposes shall be passed until — days notice of the improvement prayed for has been given in the official paper of the city.” Each proceeding of councils in their action upon the improvement was published as an item of news, on the next day only after it occurred, in the official paper, but no notice was published by direction of the councils. Held not to be a compliance with the act.</p> <p>3. The act of councils was of a judicial nature, and such proceedings affecting the rights of individuals are nugatory unless upon reasonable notice.</p> <p>4. The word “ days” after the blank in the act indicated more than one publication.</p>

217. This was an action of assumpsit brought March 2d 1875, by John Gregg and John Richardson, trading as D. Gregg & Co., against the First National Bank of Clarion County.

<p>Error to the Court of Common Pleas of Erie county: Of October and November Term 1875, No. 221.</p> <p>This was an action on the case, commenced October 18th 1871, by Katharina Weiss, widow of Jacob Weiss, deceased, and Anna Weiss and others, minor children of said deceased, against The Pennsylvania Railroad Company.</p> <p>. The action was brought to recover damages for the killing of the deceased by one of the defendants’ trains, as was alleged through negligence.</p> <p>The case was tried, January 6th 1875, before Wetmore, P. J., when the following facts appeared in evidence:—</p> <p>On the 1st of June 1871, Weiss, the deceased, was driving a light wagon, with -one horse, going southwardly along Parade street in the city of Erie. This street' crossed the Philadelphia and Erie railroad, of which the defendants are the lessees; at the place of crossing there were two railroad tracks of the defendants on the south, and four tracks of the Lake Shore and Michigan railroad further north. The defendants’ depot was west of the crossing at Parade street, and at the time of the disaster the train had just left the depot and was moving eastward. The deceased had crossed the Lake Shore railroad tracks, and in crossing defendants’ tracks he was struck by the engine and killed.</p> <p>There were two freight cars standing on the track north of that on which the passenger train was passing; one standing so far out in Parade street that persons in passing had to go into the road ; freight cars also stood on the other side of the street; a passage way was left for teams to go through, but it was quite narrow. When the deceased was last seen before he was struck, his horse seemed much frightened and he appeared to have lost control of him. The plaintiffs’ testimony was, that there was no bell rung nor whistle sounded.</p> <p>The rules of the company fixed six miles an hour as the “ highest allowable speed ” for their trains in passing through cities, &c. The witnesses differed very materially as to the rate of speed at which the train was moving, their estimates being (according to the statements in the respective paper-books), from six to twenty-five miles per hour. The evidence was conflicting also as to ringing the bell and sounding the whistle.</p> <p>The foregoing facts are from the history of the case as given in the paper-books. None of the evidence, except the following from one of the defendant’s witnesses, was given :—</p> <p>J. W. Eyster testified : “ Was running on Pennsylvania railroad as mail agent in 1871, in the United States employ; was on the train; remember accident; were four cars in train. I was sitting in mail car window; ran slow to round-house, there put on a little speed; then Martin whistled; were two cars north of us, one reaching half a car length over the sidewalk. Nothing north of there ; saw man down Parade street coming to track rather fast; he was about one or two tracks from ours. He did not stop; his horse seemed wild and wanted to go. I saw him just as he drove on to the Lake Shore track; I saw him plainly; he could have seen the train if he had looked; the bell was ringing at this time; he might not have seen engine, but could have seen ears ; no cars on west side, uidess way over on north track, but they did not obscure my view; plenty of cars on east side of track. Noticed him in particular, because he had a nice horse, and was driving so fast; he struck the horse with a whip just before he reached track ; can’t say 'how fast we were running ; we may have been running twelve miles an hour. I ran every day there ; heard the whistle by Crouch’s elevator ; think we were running as usual.”</p> <p>On cross-examination he said: “ When I first saw him we had crossed German street; we had gone, maybe, a train’s length beyond German street, when I saw him coming on track; there might have been some cars on north side sufficient to obscure view; I only saw those two cars. I saw horse because I was sitting with one foot out of the mail car window; and looking that way, he came very fast, so that kegs bounced in the wagon. Horse seemed to want to go, and he-was sawing him just as he got on the track, and when he got close up he hit the horse twice with the whip that I saw ; heard whistle about German street, that is where he always whistles and where he whistled that day, and bell was ringing. Did not make any effort to stop the horse until he got on the track, where he reined and struck the horse; was two or three tracks from ours.”</p> <p>The plaintiff’s points were:—</p> <p>1. If the jury find from the evidence that the view of the track, on w'hich the train was approaching Parade street, was obstructed by freight cars standing in Parade street for the purpose of being unloaded; that the train was running from twenty to twenty-five miles per hour; that by the rules of the railroad company they were allowed to run at a rate,of speed not greater than six miles per hour; that no watchman ‘ or flagman was stationed at the crossing; that no whistle was blown as required by the rules of the railroad company, and that Parade street was one of the principal streets in Erie for persons to drive or walk upon, then the Pennsylvania Railroad Company, by its servants, was guilty of gross negligence, and the question whether or no Jacob Weiss, deceased, husband of the plaintiff, was guilty of concurring negligence, becomes a question of fact for the jury to pass upon.</p> <p>2. If the jury find from the evidence that the Pennsylvania Railroad Company, by its agents, were guilty of gross negligence in the manner and ways as set forth in the first point, and that Jacob Weiss, deceased, used reasonable and ordinary care in passing the tracks of said company on Parade street, and if the jury find that said Weiss was killed by one of the locomotives of said company, then the plaintiff is entitled to recover.</p> <p>8. If the jury find from the evidence that the horse of Weiss, the deceased, became frightened and unmanageable within a short distance of the track of the Pennsylvania Railroad Company, and that in consequence this horse rushed upon the track, then the question of concurring negligence on the part of the said Weiss is a question of fact for the jury to pass upon.</p> <p>The court answered the points as follows:—</p> <p>“Plaintiff’s first and second points answered in the general charge, to which reference is made.</p> <p>“ The third point is answered as follows:—</p> <p>“It was an act of negligence, under the circumstances, to be so near the track on which defendant’s train was passing, and does not alter the legal conclusion which we have stated in the general charge, and your finding under the evidence should be for defendant and the court so directs.”</p> <p>The court charged:—</p> <p>“ If Jacob Weiss, deceased, approached and attempted to pass over the railroad track in the manner stated by the witness, J. W. Eyster, it was negligence on his part and the plaintiff cannot recover. '</p> <p>“ When a party approaches a railroad crossing, and has a full view of the track both ways a sufficient distance to see approaching trains, and there are none to interfere, he can pass over without stopping; but if the tracks are numerous, and the trains frequent, or the view is obstructed by cars on the track, or otherwise, then it is a duty to pause, look and listen, and the violation of this duty is a negligence that defeats an action for damages for any injury that may occur.”</p> <p>The verdict was for the plaintiff.</p> <p>The plaintiff took a writ of error and assigned for error:—</p> <p>The answers to the points, and the charge of the court, and di- ■ reeting a verdict for defendants.</p>

<p>Error to the Court of Common Pleas of Erie- county: Of October and November Term 1875, No. 215.</p> <p>This was a scire facias sur mortgage, issued July 6th 1872, by John Scofield against Daniel Rice, who was served, appeared to ‘the case and filed an affidavit of defence. On the 26th of June 1873, the death of the plaintiff was suggested, and David Olin, his executor, substituted. Afterwards the land covered by the mortgage was sold under judgments against Rice — subsequent to the mortgage — to James Wadsworth and Henry A. Traut, who, on their own application, were on the 10th of May 1875 placed on the record as defendants. On the same day Henry Ball, assignee in bankruptcy of Rice, filed in the case a paper, setting forth that Rice on the 15th of February 1875, had been declared a bankrupt ; that all his estate had been duly assigned to Ball on the 24th of March 1875; that the property covered by the mortgage had been sold on judgments younger than the mortgage; that the estate of Rice had no interest in the suit, and asked “ leave to withdraw all appearance in behalf of Rice and his estate.”</p> <p>The defence was that the mortgage had been given to secure part of the purchase-money of land sold by Scofield to Rice, and that Rice had been induced to buy the land at a price far beyond its value, through the misrepresentations of Scofield as to its character, quality, &c.</p> <p>The cause was tried May 12th 1875, before Vincent, P. J.</p> <p>The plaintiff gave in evidence, mortgage dated May 24th 1866, from Rice to Scofield, to secure the payment of $4400, payable in four equal annual payments, the first to be made May 24th 1867,</p> <p>The plaintiff further proved the sheriff’s sale to Wadsworth and Traut, and rested.</p> <p>The defendants gave in evidence, deed Scofield to Rice, dated May 24th 1866, for the land mentioned in the mortgage; the consideration being $5825. They gave evidence also of the payment of $1100, the instalment due May 24th 1867, and payments in different sums up to July 7th 1871, amounting in all to $1330, towards the remainder of the purchase-money.</p> <p>The principal evidence as to the sale of the land and the representations by Scofield was from John Heibeck, who testified:—</p> <p>“ Was present when Dan Rice and Scofield were negotiating for sale of this land. At a conversation which was in front of Rice’s house in Girard, a day or two before deed was made,.Rice said he wanted to buy a, timber lot that had whitewood, ash, hemlock, chestnut, and all kinds of sawing and building timber on it. Scofield said he had just such a piece of land. Was good wheat land as any along the ridge road. Said was nice level piece of land. He said was about 100 acres of the land in timber of the 175 acres in the lot. They then agreed that Rice should go up and see the farm the next day. Rice went to farm with me. Met Scofield about mile and half from farm going towards Girard. Rice wanted him to go back with us and show us the land, and where it was. Scofield refused to go back, saying he was unwell and could not ride. He then said to Rice that he could depend that the land was just as he had told him in Girard the day before. Rice then said he' would take his word and take the farm and would make out papers next day. Rice and I drove on to the farm, but did not know where lines were, nor whether on one side or on both sides of the road. The house is near north side of the farm. I lived on farm three years. Could not see from house or driving along the road how it lay or how much timber was on it. * * * Was beech and maple and hemlock on land, but most of hemlock was in a gully where could not get it. No sawing or building timber. Part of land, is smooth and part is broken and hilly. Are two gullies running through it. Banks of creek 25 to 30 feet high. Not accessible from one side to other on this tract with a team. Land smooth enough, except the gullies. Rather poor soil. Could not raise good crops of wheat on it. Farm not worth then in my opinion over $2000. If as Scofield represented it to be, would have been worth $5000 to $5500.”</p> <p>There was evidence of the same kind and from a number of witnesses.</p> <p>The plaintiff, in rebuttal, gave evidence in answer to the plaintiff’s case.</p> <p>The court charged:—</p> <p>* * * “ The scire facias was not issued until between May and September 1872, or six years or more after the making of the deed, and after the conversation with Wright, during all of which time Mr. Rice retained the land, made payments thereon running down to July 1871, and visited the land once or twice a year, and so far as the evidence shows, never even made any complaint of fraud or misrepresentation on the part of Scofield. [The evidence of Heibeck shows that Rice went upon the land before the deed was made, and he therefore had a full opportunity for.inspection of its surface, its soil and its timber], and if he did not use his opportunities, he cannot complain now, unless by some contrivance on the part of Scofield he was induced not to use his opportunities for examination. The evidence further shows that Rice has cut and carried off timber and fire-wood from the land, and has cleared up some of it, and Mr. Teller tells you that the land is not worth now by 30 per cent, as much as it was in 1866. Amos Milks testifies that the farm has run down since Rice bought it. , John Sherman says land was worth $25 per acre in 1866, and not over $15 or $16 now, and that farm is now in a very bad state. [Rice has never tendered back the farm to Scofield, nor did he at any time since the sale offer to place Scofield in as good a position as he was at the time of sale, and this he should have done, for peradventure, had he done so, Scofield would have returned the purchase-money, could he have been placed in as good á position as he was in when he parted with his land.]</p> <p>“ If a vendee of lands claims, to-have been defrauded by misrepresentations made to him as to a valuable property in the land, under such circumstances as would make them a fraud upon him, he should make known the fraud as soon as he reasonably can after it is discovered, and he will not be permitted to retain the property and derive benefit from it, and then set up the fraud as a defence to the purchase-money, and what is reasonable time is a question of law for the decision of the court. If you should find from the evidence that Rice was'induced to buy this land by the fraudulent representations of Scofield as to its qualities as a farm and timber lot; if you nevertheless believe that he had a full opportunity to examine the land for himself, and such examination would have shown him the real character of the land, and of the timber upon it, and he omitted to avail himself of it, he cannot set up the fraud here as a defence, unless by some practice or contrivance of Scofield he was dissuaded from making such examination, [but even if he had no opportunity for examination before he bought, if you believe that he knew its real character, for soil, surface and timber very soon after he purchased, and was on the land once or twice a year thereafter, and did not make known the fraud or complain of it to Scofield, for five or six years after such knowledge, he cannot now set it up as defence and the plaintiff is entitled to recover the amount secured by the mortgage, deducting the payments actually made thereon.] If Rice did not know the real character of the land as to soil, timber and surface, and you believe he bought on that inducement alone and that he was deceived by Scofield, he can deduct from the purchase-money the difference between what he agreed to give and what it was then actually worth, and in our opinion no more, for if he could exceed that measure of damages a vendee of land might get a man’s land for nothing, by showing that had the land been as represented it would have been worth enough more than its actual value to wipe out all the purchase-money, and thus give the vendee the land for nothing, and this we think cannot be done in any case in which the purchase-money of land is involved.”</p> <p>The plaintiff’s points and answers are as follows :—</p> <p>1. This action is one wholly in rent against the land, and Traut and Wadsworth, the purchasers at sheriff’s sale, Avho are admitted to defend, cannot set up as a defence any fraudulent representations made by Scofield to Rice in 1866 as to the quality of the land or the timber upon it.</p> <p>Answer: “ We think this is correct, hut as Rice is still a party and may be liable on a bond, if one exists, Ave think any defence in Rice may be set up here.”</p> <p>3. Where a purchaser has the opportunity to inspect the property, as did Dan Rice in this case, it is his OAvn fault if he did not inspect, and representations of the vendor without Avarramty, when there is an opportunity to inspect, form no defence to the payment of the purchase-money.</p> <p>Answer: “ This is correct; the law does not protect men against their OAvn follies; against them they must protect themselves.”</p> <p>5. In this case it was the duty of Dan Rice to have offered to rescind the contract as soon as the fraud (if any there was) Avas known to him ; the delay has been such that the defence offered cannot now be made available.</p> <p>Answer: “ We answer this in the affirmative. And if you believe that Rice knew the real character of this land soon after he bought it, and never having offered to return it and made no complaint of the alleged fraud during all the time betAveen this discovery and the bringing of this suit, he cannot now set up the alleged fraud as a defence to this suit.”</p> <p>6. What is a reasonable time or undue delay is for the court, and in this case the delay to take advantage of any representations made by Scofield is unreasonable, and the evidence of Heibeck as to such representations in 1866 must be disregarded by the jury.</p> <p>Answer : “ Affirmed; referring to answer to 5th point, except as to Heibeck’s testimony.”</p> <p>The defendant’s points and answers were:—</p> <p>1. If the jury believe from the evidence that while Rice and Scofield were negotiating for the sale of the land, Rice stated to Scofield that he was intending to build considerably and wanted to buy a timber lot that had plenty of whitewood, ash and hemlock, and Scofield represented to him that there was a large quantity of the kind of timber he had mentioned, and that the land was of good quality, was good for wheat, level and smooth, and on the faith of these representations, Rice purchased the land and paid the price stipulated, and the representations so made were untrue, it was such a fraud upon Rice as would entitle him to claim a deduction from the purchase-money equal to the difference in the value of the land at the time of the purchase and what it would have been worth if it had been in quality and description what it was represented to be by Scofield.</p> <p>Answer: “The stating part of the point is affirmed if Rice had no reasonable opportunity to examine the land for himself; but we refuse to charge as requested as to- measure of damages, and for that refer you to our general charge.”</p> <p>3. If the jury believe from the evidence that the price paid by Rice to Scofield for the land was more than twice its actual value at the time of the sale, that circumstance of itself is evidence of fraud.</p> <p>Answer: “We cannot so charge, unless Rice had no chance to examine for himself.”</p> <p>4. If the jury believe from the evidence that the defendant was induced to pay much more than the mortgaged premises were worth, in consequence of the false representations of Scofield as to the timber and the quality of the land, and that he has already paid to the plaintiff all the property was fairly worth at the time of the purchase, the defendant is entitled to relief and the plaintiff cannot recover.</p> <p>Answer: “We decline so to charge, but refer you to what we have said in our general charge as to the opportunity to examine and failure to complain of fraud within a reasonable time after knowledge of it.”</p> <p>5. If the jury believe from the evidence that at the time of the sale of the land to Rice there was a false representation of material facts by Scofield that induced Rice to purchase the land, it was a fraud upon Rice, and was not susceptible of confirmation by declarations of Rice or otherwise, without a new consideration.</p> <p>Answer: “ We decline so to charge,"but refer to general charge.”</p> <p>The verdict was for the plaintiff for $2768.78. •</p> <p>The defendants took a writ of error; they assigned for error:—</p> <p>1-3. The parts of the charge in brackets.</p> <p>4-7. The answer to the plaintiff’s points.</p> <p>8-11. The answers to defendant’s points.</p>

219. This was an action of ejectment, commenced July 1st 1872, by S. P. Gardner and Olivia, his wife, in her right, against Catharine McLallen, for a tract of land in Washington township. Mrs. Gardner, plaintiff, claimed as one of the heirs of Henry McLallen, deceased, alleging that he died seised of the premises ; the defendant claimed as surviving wife of the deceased, alleging that she and her husband had held the land by the entireties.

261. This was a scire facias sur mechanic’s lien, issued April 2d 1874, by Jarechi, Hays & Co. against the Philharmonic Society. The claim, amounting to $1060,90, was filed under the Act of April 14th 1855, sect. 1, Pamph. L. 238, 2 Br. Purd. 1027, pi. 14, extending the provisions of the Mechanics’ Lien Law to plumbing, gas-fitting, and furnishing and erection of grates and furnaces.

<p>In an action against a railroad company for burning a barn by sparks from the engine, there was evidence that the fire commenced at or near the railroad track, and that engines had passed shortly before the barn was fired, raising the presumption that it was fired by sparks from an engine, the particular one not being known. Held, that evidence by a witness living nineteen miles from the barn that it was a common occurrence for engines about where he lived to set fire for rods from the track, was admissible.</p>

<p>1. Administration of Nelson’s estate was duly granted by the register of Jefferson county ; the administrator applied.to the Orphans’ Court of Jefferson county for a sale of decedent’s land, described as being in Jefferson and Clearfield counties, for payment of debts ; the’ order was issued, the land sold, sale confirmed by the court, the purchase-money paid to the administrator and appropriated to the payment of the debts. It was afterwards discovered the iand was entirely in Clearfield county. After an ejectment brought by the heirs of Nelson against the purchaser for the land, an of Assembly was passed validating the sale. Held, that the act was constitutional and the purchaser’s title was valid.</p> <p>2. The Orphans’ Court of Jefferson county having jurisdiction of the accounts of the administrator, had a right to order the conversion of the decedent’s real estate for the payment of his debts ; it could not consummate it without the aid of the courts of Clearfield county, but the court of Clearfield county was ancillary only to the court of Jefferson county.</p> <p>3. As the legislature cannot by an arbitrary edict take one man’s property and give it to another, a judicial proceeding which is void for want of jurisdiction cannot be validated by an Act of Assembly.</p> <p>4. The legislature cannot exercise judicial powers.</p> <p>5. If an Act of Assembly is within the legislative power, it is not a valid objection to it that it divests vested rights.</p> <p>6. Retrospective laws divesting vested rights, unless ex post facto laws or impairing the obligations of contracts, are not within the prohibition of the United States Constitution, however repugnant to the principles of sound legislation.</p> <p>7. Where jurisdiction has attached and there has been a formal defect in the proceedings, where the equity of the party is complete and all that is wanted is legal form, the legislature may correct such defect and provide a remedy.</p> <p>8. Richards v. Rote, 18 P. F. Smith 248, distinguished.</p>

<p>1. The original construction of roads is to be governed by the topographical features, population and taxable ability of the township.</p> <p>2. In making a road which was constructed on the bank of a stream it was necessary at one place to cut into a hill of rock; it was made more than wide enough for one carriage, but not for two carriages to pass safely, there were “ turn-outs” at a convenient distance; two meeting carriages attempted to pass, their wheels struck each other, and one was thrown into the stream and the horses drowned. In an action against the township by the owner for the loss, the court below rejected evidence that the road could not have been made wider or protected by a wall next the stream without incurring enormous expense, such as the township could not bear. Held to be error.</p> <p>3. The plaintiff saw the other carriage approaching some distance from the place of meeting: Held, that he was guilty of contributory negligence in attempting, under the circumstances, to pass.</p> <p>4. The questions whether the injuries arose from the fault of the township in the condition of the road or from the necessity in the original construction of making a single track road at the place of the accident, were for the jury.</p> <p>5. The rights and liabilities of municipalities in constructing highways in difficult places, at very great expense, &c.,' considered in this case.</p> <p>6. Erie v. Schwingle, 10' Harris 384, distinguished.</p>

<p>1. An order to commissioners to view for an independent school district must direct at least ten days’ special notice to be given to the school directors of the district from which the new one is to be taken.</p> <p>2. An order was for notice “ to the inhabitants, &c., and also special notice to the school directors of said township by twenty printed notices put up, &c., at least ten days,” &e. Reid to b.e insufficient.</p> <p>3. The commissioners reported that they gave “ the required notice by twenty printed notices put up, &c., ten days before the time of said meeting, and also notified the school directors, &e., of said time, place and purpose of meeting.” Reid, that the notice stated in the report was not sufficient.</p> <p>4. Wilkins School District, 20 P. P. Smith 108, a governing case.</p>

<p>Error to the Court of Common Pleas of Lawrence county: Of October and November Term 1875, No. 143.</p> <p>This was an action of assumpsit, brought August 29th 1871, by-Elias Gilmore and Richard Gilmore, against Alexander Anderson and William Duff, executors, &c., of Martha Neal, deceased.</p> <p>The original declaration was in the common counts; additional special counts were afterwards filed.</p> <p>The first of the special counts set out: “That on the 1st day of January, A. d. 1846, a special contract was entered into by and between the plaintiffs of the one part and the said Martha Neal of the other part, by which the said Martha Neal agreed that if a certain John Gilmore, father of the said plaintiffs, who were then infants, under the age of twenty-one years, would stay with the said Martha and her brother, one Adam Neal, who at the time were living together on a farm in said county, and work the said farm, getting for himself a certain share of the crop, and if the said children, the plaintiffs, would stay with them, the said Neals, until they were of age, she, the said Martha, and her brother would take and raise them as their own, give them a good common education, and at the death of the said Adam and the said Martha, each would give them all the property and estate of which they should die owning and possessed of; that the said John Gilmore continued to stay and work the place as aforesaid, and the said Elias and Richard continued to stay with the said Adam and Martha till they were of the age of twenty-one years respectively, and in all things performed their part of said contract; that the said Martha died on the 1st day of March, A. D. 1867, and though owning and possessed of property and estate, to wit: a farm of the value of five thousand dollars, did not at her death give the same nor any part thereof to the said plaintiffs, but the same to give, grant and devise to the said plaintiffs did refuse, to the damage of plaintiffs five thousand dollars.”</p> <p>The second count set out: “ That whereas on the 1st day of January, A.' D. 1846, the said Adam and Martha, in consideration of the matters and things aforesaid to be done and performed by the said John and plaintiffs, promised that they would give and devise all their property to the said plaintiffs at their death; that the said Adam died on the 1st day of March, A. d. 1858, intestate, leaving the said Martha his next of kin, and that the said Martha died on the 1st day of March 1867, without making any provision for conveying or devising her estate to the said plaintiffs; that she left estate, to wit: a certain farm, &e., to the damage of said plaintiffs five thousand dollars.”</p> <p>The case was tried February 10th 1875, before McJunkin, P. J.</p> <p>The plaintiffs offered in evidence the deposition of O. O. House.</p> <p>' The defendants objected, “for the reason that the deposition relates to a joint contract made by Adam Neal and Martha Neal with plaintiffs, the suit being against Martha Neal’s executors alone, and having so declared ; and is also incompetent and irrelevant.”</p> <p>The evidence was admitted and a bill of exceptions sealed for the defendants.</p> <p>By the deposition, O. C. House testified: * * * “Elias Gilmore and 'Richard Gilmore are my half-brothers; Martha and Adam Neal were nephew and niece of my step-father. At my mother’s death my step-father took the two boys, Elias and Richard, to live with Martha and Adam Neal. My mother had requested me (it was her dying request) that I should look after the children, as their father was in the habit of drinking. The children were young; I think about two and six years old. I went out there a short time after the Neals had taken the children. They stated to me they had taken a great liking to the children (they had none of their own), and would like to keep them, and if their father, John Gilmore, would stay and work the place and behave himself, they would give him a certain share of the crop, and if they, the children, wTould stay until they were of age they would take them and raise them as their own. They would give them a good common education, and at their death would give them what they had. I informed Gilmore of the facts in the case, and made what I considered a fair, well-understood contract. Some few years afterward I got information that Gilmore was about to leave the Neals; found that Gilmore and the Neals were not getting on very well, as Gilmore was drinking. Gilmore complained that Martha Neal was cross; but Martha and Adam Neal wanted to keep the two boys, Elias and Richard, if the old man did go away. I told Gilmore, my step-father, that if he wanted to go away he should go, but should not take the two boys, as Adam and Martha Neal were living up to their agreement. I got the parties all together, and it was then agreed that as I would not let the children go with him, he would stay. He also agreed he would quit spreeing. I came home and did not see any of them for several years. I got uneasy about them and I went out to the Neals. I met a man just before I got to the house. I never heard his name, and do not know who he is. He came to me and asked me if my name was not House. I told him it was. He told me he must go back to the house with me, as Adam Neal was dying; that Neal was under the impression that I had gone off or was dead ; that he had been talking about me and wanted to see me. He stated that Neal said he wanted or had been making some change in the agreement with me, and wanted to see me ; that he wanted to make me an heir equal to the children. We went to the house ; Adam turned his face to me and spoke to me and said he was very sorry I had not got there sooner. He said he was dying and could not talk, and in fifteen or twenty minutes he was. dead. There was some excitement, or seemed to be, among the friends in regard to my presence, so I left the next day and' came home. Martha Neal told me that J. Gilmore had been doing better and keeping his promise. I never knew there had been any change in my agreement with the Neals, only what the stranger told me, until I heard of the death and will of Martha Neal.' I was very much surprised when I heard it.”</p> <p>The other evidence was to the effect that the two plaintiffs went to the Neals, with John- Gilmore, their father, who worked the farm, consisting of about 140 acres, for a share of the crops. Gilmore’s habits were intemperate. About nine or ten years afterwards. Adam Neal died intestate and Martha inherited all his estate. Some years before Elias Gilmore arrived at age, he went, with the consent of Martha Neal, to learn a trade. He afterwards, in 1861, also with the consent of Martha Neal, went into the army and remained there three years. Richard Gilmore remained on the farm until he was of age; the decedent then conveyed to him 25 acres of land, part of the farm; he erected a house and lived there.</p> <p>On the 5th of February 1868, a few days before her death, Martha Neal made a will ordering her property to be sold, giving $100 to Elias Gilmore, and to Richard Gilmore a bed, &c., of small value.</p> <p>The defendant’s first point, which was negatived, was:—</p> <p>. The plaintiffs having brought this action against the legal representatives of Martha Neal, and declared upon a contract with her alone, and not upon a joint contract by her and Adam Neal, and the contract offered in evidence being a joint contract by Martha and Adam Neal, it does not sustain the action or declaration, and therefore plaintiffs cannot recover.</p> <p>The court also charged:—</p> <p>1. “ That if Elias Gilmore was about learning a trade and serving in the army by consent of Martha Neal, that that amount of time should not be deducted from the whole value of the services up to the time he arrived at the age of twenty-one years.”</p> <p>2. “ That the 25 acres of the farm given by Martha Neal to Richard Gilmore, (in her lifetime) should not be taken into account or deducted from the value of the services rendered.”</p> <p>The verdict was for the plaintiffs for $2500.</p> <p>The defendants took a writ of error and assigned for error:—</p> <p>1, 2. The parts of the charge above given.</p> <p>3. Refusing defendant’s first point.</p> <p>4. Admitting the deposition of O. O. House.</p>

295 of October and November Term 1874. The appeal in this case was from the decree of the Orphans’ Court distributing the balance in the hands of John S. Knox, guardian of Mary C. Lindsey, late Sayers, a minor child of E. S. Sayers, deceased; the ward having died in her minority. The father died on the 19th of September 1865, intestate, leaving to survive him a widow and two children: Mary, then aged about fourteen years, and a son, Ephraim, a few months old.

<p>1. A devise was “ to my son Jacob and Eliza his wife, the tract of land * * * during their natural life * * * I order that my son Jacob and wife shall not sell or dispose of their life-interest in, &c., to any person, and further that the land given to Jacob and wife shall be equally divided among their children at their death. It is my wish the farm be owned by the boy, he paying to his sisters proper legacies when he and they shall become of age.” At the date of the will and the testator’s death Jacob was married to a second wife, named Eliza; he had two daughters of his first marriage who were of tender years at his second marriage; they were treated by him and his wife without any distinction from her own children, consisting of one son and four daughters. By subsequent clauses in his will the testator made provision for all his other children and grandchildren. Held, that the daughters of Jacob’s first wife took under the devise to the children of Jacob and his wife.</p> <p>2. Under the circumstances, the two daughters being of his own blood, were children of Jacob and Eliza, in the ordinary meaning of the term.</p> <p>3. The direction that u the boy” was to pay “ proper legacies” to his sisters included those of his half-blood.</p>

<p>Error to the Court of Common Pleas of Butler county: Of October and November Term 1875, No. 146.</p> <p>This was an action of assumpsit, brought November 14th 1873, by John Preston, for the use of Simon Young, now for the use of W. D. McCandless, against H. L. Taylor, John Satterfield, J. J. Yandergrift and George Y. Forman, trading as H. L. Taylor & Co.</p> <p>The declaration was that on the 19th of February 1873, Simon Young, by articles of agreement, under seal, agreed to sell to John Preston a tract of land, the deed to be made when the purchase-money should be paid. In consideration, Preston was to pay $20,000, as follows: $200 in hand; $5000 on the 15th of April 1873; $7900 on the 15th of October 1873, and $7900 on the 15th of April 1874 ; that Preston went into possession and paid the first instalment of $5000, and on the 19th of March 1873, by writing, under his hand, assigned his interest in the contract and land described in-it to the defendants; that the defendants thereupon agreed and promised Preston, as part of the consideration-money, that they would pay Young the residue of the purchase-money mentioned in the contract when the same became due, to wit: $7900 on the 15th of October 1873, and $7900 on the 15th of April 1874; that tbe defendants took possession of the land in pursuance of the assignment, but refused to pay the instalment due on the 15th of October 1873, &c.</p> <p>The case was tried March 11th 1875, before Bredin, J. The evidence as sent up with the records was taken by the official stenographer.</p> <p>The plaintiffs gave in evidence the articles of agreement between Young and Preston, as set out in the declaration; also the assignment, which was endorsed on the articles, viz.:—</p> <p>“Petrolia, Pa., March 19th 1875.</p> <p>For value received, I hereby sell and assign all my right, title and interest in the within described contract to J. J. Yandergrift, George V. Forman, John Satterfield and Hascal L. Taylor, their heirs and assigns. John Preston.”</p> <p>They then called John Preston, who testified that he made the contract with Taylor for the assignment of the contract. The witness was then asked, what was the consideration of the contract between him and Taylor k Co. The defendants objected because the contract was in writing.</p> <p>Amongst the notes of evidence in the paper-books of plaintiffs in error, being as taken by the stenographer, it does not appear at this point what the ruling of the court was.</p> <p>The witness answered, that the defendants were to pay $20,000 and assume all the back payments — the two payments of $7900 each.</p> <p>Young testified that he assigned part of the purchase-money of W. D. McCandless.</p> <p>The plaintiff having rested, the defendants gave in evidence the record of an action of covenant, brought November 14th 1873, by Simon Young against John Preston. The cause of action was the contract between Young and Preston of February 19th 1875.</p> <p>The records showed that the case was on the trial list for the .January Term 1875, and after that the following entry:—</p> <p>“And now, to wit, 16th December 1874, defendant appears in his proper person, and,- with consent of plaintiff’s attorney, confesses judgment to plaintiff in the sum of $16,669, being for the instalment of purchase-money of the land described in the contract sued on as well as the last instalment, due 15th April 1874, with costs of suit, release of errors, &c.”</p> <p>Defendants also gave in evidence deed, dated December 16th 1874, from Young to Preston, for the land mentioned in the articles of agreement between them.</p> <p>Defendants offered to show judgments against Preston subsequent to Young’s judgment. This was objected to by the plaintiffs. The court decided to admit evidence of judgments against Preston before the assignment to the defendants, but not after, and sealed a bill of exceptions. *</p> <p>The following are points of the defendants which were refused:—</p> <p>2. The assignment by Preston to defendants of all his right, title and interest in the contract with Young for a valuable consideration paid to Preston, will not render defendants personally liable to Preston for payment of the balance of purchase-money, and plaintiff cannot recover.</p> <p>4. Even if the law would raise an implied promise on the part of the defendants to indemnify John Preston from the payment of the balance of purchase-money, he must pay Young before he can recover.</p> <p>The court, March 11th 1875, instructed the jury, “ to return a verdict in favor of the plaintiff for $8557.08, under the evidence in the case.”</p> <p>On the same day the jury rendered a verdict for that amount.</p> <p>On the 10th of September 1875, the defendants moved “ that the judge who tried the case direct the reporter to correct his report of the trial by the insertion of the following rulings of the court,” &c. The rulings were then set out. The court decided as follows:—</p> <p>“After hearing and argument of above motion, the matters for which correction is asked being disputed by plaintiff’s counsel, the court do refuse the motion, the law having made the stenographer’s notes the best evidence in cases of dispute. But to bring the matter fairly before the higher court, do certify that on the trial of the causes, when John Preston, a witness for plaintiff, was asked by plaintiff what the consideration of the contract between him and defendants was, and said question was objected to by reason of the contract being in writing, the court decided to admit the evidence, saying, in substance, ‘ that it was competent to show the consideration by parol--, and that the evidence was not offered or received for the purpose of proving a parol promise to pay the purchase-money due.’ ” •</p> <p>By the Act of May 15th 3874, Pamph. L. 182, providing for the appointment of stenographers by the courts, it is enacted that their notes “ shall be deemed and held to be official and the best authority in any matter of dispute, and a copy of the same shall be used by the parties to the cause in any further proceedings, whenever the use of the same may be required.</p> <p>The defendants, plaintiffs in error, alleged in their paper-book that there were other rulings by the court on questions of evidence, which were not accurately reported by the stenographer.</p> <p>The defendants took a writ of error; they assigned for error:—</p> <p>1. Rejecting evidence of judgments against Preston.</p> <p>3,_4. Refusing defendants’ 2d and 4th points.</p> <p>5. Instructing the jury to find for the plaintiffs.</p>

<p>Error to the Court of Common Pleas of Beaver eounty: Of October and November Term 1875, No. 249.</p> <p>This was an action of assumpsit, brought September 23d 1873, by H. J. Speyerer and others, trading as Speyerer & Co., against Hugh Bennett.</p> <p>The cause of action was two promissory notes, made by William Kennedy, endorsed, as plaintiffs alleged, by Bennett and discounted by plaintiffs' for Kennedy. Bennett’s defence was that he had not endorsed the notes. His deposition was regularly taken to prove his defence; it was filed September 12th 1874. Bennett having died, his death was suggested of record June 14th 1875, and Maria Bennett and James J. Hazen, his executors, substituted.</p> <p>The case was tried June 15th' 1875, before Hice, P. J.</p> <p>H. J. Speyerer, one of the plaintiffs, was examined as a witness on their behalf. The defendants then offered the deposition of their testator.</p> <p>The offer was objected to on the ground that “the death of Bennett having closed the lips of the plaintiffs,” the deposition was inadmissible under the proviso of the Act of April 15th 1869, sect. 1, Pamph. L. 80, 1 Br. Purd. 624, pi. 16. The court admitted the deposition and sealed a bill of exceptions for the plaintiffs.</p> <p>The verdict was for the defendants.</p> <p>The plaintiffs took a writ of error and assigned the admission of the deposition for error.</p>

<p>1. In an appeal under the Act of April 6th 1856, by a railroad company from an assessment of land damages, the issue was in the form of trespass quare clausum fregit; the court charged that the company had committed a trespass in entering on the land. Meld to be error, the company’s entering upon the land was lawful.</p> <p>2. The land on which the road was located was used as a farm; the court charged that in estimating the advantages and disadvantages, they were to consider only such as resulted to the 11 farm as a farm.” - Meld to be error.</p> <p>3. In estimating the damages the jury are not to be limited to any particular use of the land.</p> <p>4. The jury are to consider the market value of the land before and after the alleged injury.</p> <p>5. In estimating the market value of land everything which gives it intrinsic value is to be taken into consideration.</p>

<p>Error to the Court of Common Pleas of Venango county: Of October and November Term 1874, No. 266.</p> <p>This was an action of assumpsit, brought May 22d 1874, by the Second National Bank of Titusville against Charles M. Bly, as endorser of the following note, of which the plaintiff was the holder:—</p> <p>“ $2424.87.</p> <p>Titusville, December 26th 1873.</p> <p>Four months after date, I promise to pay to Charles M. Bly, or order, $2424.37, at Second National Bank, Titusville, value received. F. W. Andrews.”</p> <p>Endorsed “ Charles M. Bly.”</p> <p>The defendant’s affidavit of defence was as follows :—</p> <p>Frank E. Iiickox, being duly sworn, says : — “ That he resides in the city of Titusville, in said county, and is and has been for four years the cashier and book-keeper of Frank W. Andrews, the maker of the note sued upon herein, upon which the above-named defendant is merely an accommodation endorser, without value or consideration ; * * * that the note herein set up and sued upon was given by said Andrews to said plaintiff in consideration, in part, to wit: in the sum of $1100, to secure that sum, being the balance of so much which said Andrews had become liable to pay said plaintiff by reason of accommodation endorsement, without value or consideration, by him theretofore made on the promissory notes of one Paul W. Garfield, which said Garfield procured to be discounted, and obtained loans of money upon, by and from said plaintiff; that the actual existing liability of said Garfield.to said plaintiff for money borrowed, at the time of said Andrews’ endorsement as aforesaid of his said notes, was about the sum of $60,000; that the amount of the. capital stock of said plaintiff actually paid in at such time was only $300,000; that, in and by the laws of the United States, under'which said plaintiff, is organized and incorporated, the said plaintiff was forbidden to loan said Garfield any sum in excess of one-tenth part of its capital stock actually paid in at that time, to wit: the sum of $30,000, and that said $1100, being part of such sum in excess as aforesaid of such $30,000, was so loaned as aforesaid to said Garfield in violation of and contrary to law, and the loan thereof void.</p> <p>“ And deponent further says that the note in suit (except the said $1100 loaned as aforesaid to said Garfield) was given to said plaintiff for and in renewal, continuance, and settlement of loans and discounts made by plaintiff to and for the Climax Mower and Reaper Company, of Corry, Pa., upon which said Andrews was an accommodation endorser, without value or consideration, upon notes and renewals from time to time, given by said company, and endorsed by said Andrews to said plaintiff, beginning with the 9th day of May 1871, and ending on the day of the date of the note in suit, as specified in schedule hereto annexed ; that, during the whole of such period, the rate of interest limited by and under the laws of Pennsylvania for the loan and forbearance of money was six per cent; that, in and by the laws of the United States, under which said plaintiff is organized and incorporated, said plaintiff was and is forbidden to take, reserve, charge or receive, a greater rate of interest than six per cent, upon the loans and discounts aforesaid ; that, during the whole of such period, said plaintiff took, reserved, charged and received, upon and out of the loans and discounts aforesaid, a rate of interest at ten and twelve per cent., as specified in said schedule, amounting in the aggregate to the sum $1475.02, and has by the laws aforesaid forfeited such sum to said Andrews, and said defendant is entitled to and has a legal set-off to that ampunt as against said plaintiff’s claim herein.”</p> <p>The schedule referred to in the affidavit of defence showed a number of loans at usurious rates of interest as there set out. The interest charged on the note in suit was $82.42 and was usurious.</p> <p>On a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence, the court, Trunkey, P. J., delivered the following opinion :—</p> <p>“ This action is against the endorser, who was payee of a prom-' issory note, dated December 26th 1873, for $2424.87, drawn by F. W. Andrews. The affidavit of defence avers that Charles M. Bly was an accommodation endorser, and that the note was given by Andrews to the plaintiff on illegal consideration as to part, and is subject to set-off as to the balance.</p> <p>“1. The consideration to the extent of $1100 was abalance which Andrews had become liable to pay the plaintiff, by reason of accommodation endorsements theretofore made, on the promissory notes of one Paul W. Garfield, which said Garfield procured to be discounted and obtained loans of money upon from the plaintiff. At, the time of Andrews’s endorsements of said notes, the liability of Garfield to the plaintiff for money borrowed was about the sum of $60,000. The amount of plaintiffs’ capital stock paid in was only $300,000. The said loan by the plaintiff to said Garfield, being in excess of one-tenth‘part of the capital stock of the plaintiff, was in violation of law and the contract of loan void. Thus alleges the affidavit.</p> <p>“The 29th section of the Act of Congress of June 3d 1864, commonly called the National Bank Act, provides that: ‘ The total liabilities to any association, of any person, or of any company, corporation or firm, for money borrowed ’****< shall at no time exceed one-tenth part of the amount of the capital stock of such association actually paid in.’ Let it be conceded that the loan by the plaintiff to Garfield was in violation of law, and for this reason was within the well-settled rule, that no action can be maintained on a eontract, the consideration of which is either wicked in itself or prohibited by law. Although the borrower was a party to the violation of the law and had the lender’s money in his pocket, he could have defended against its payment, because the law will not enforce an act which it has prohibited. The only reason for the rule is for the public good. No court will aid a man who founds his cause of action on an illegal act, for he has no right to be assisted when, from his own stating or otherwise, the cause of action appears to arise on an immoral or illegal contract. Surely the defence is not upon any merit of the borrower. It was said by Lord Mansfield: ‘ The objection that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill -in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, of which the defendant has the advantage, contrary to real justice as between him and the plaintiff,, by accident, if I may so say.’</p> <p>“ How far the principle is to affect subsequent or collateral contracts, the direct or immediate consideration of which was not inducive to the original illegal act, is an intricate question. It was long ago decided in England, and has often been repeated by our own courts, that ‘ the test, whether a demand connected with an ’illegal transaction is capable of being enforced at law, is whether the plaintiff requires any aid from the illegal transaction to establish his case.’ In Thomas v. Brady, 10 Barr 164, after referring to the test, Rogers, J., approvingly quotes from Story on Contracts : ‘ If an act in violation of either statute or common law be already committed and a subsequent agreement entered into, which, though founded thereupon, constituted no part of the original inducement or consideration, such an agreement is valid.' The rule has sometimes been carried to inconvenient lengths, not because of its unsoundness in itself, but in its application to particular cases. It should be rigorously applied to all unlawful transactions; but not extended so far as to encourage violations of contracts for payment of honest debts, as between the parties, because they grow out of tainted originals. If the taint of the original vitiated every contract growing out of it, however remotely connected with it, it would give protection to fraud upon individuals without compensation in the benefit of the public.</p> <p>“ How much was the total amount of Andrews’s endorsement for Garfield does not appear, nor do the inducements which made him directly assume payment of the balance as his own debt. It is certain that Garfield’s notes, endorsed by Andrews, were arranged in some way, and that the latter gave his own obligation with security for the balance. The plaintiff needs ño aid from the original transaction to make out his case. Garfield is no party to the note. The defendant attempts its defeat, not by showing anything done at the time it was given, but because of the turpitude of the borrower and lender when Garfield borrowed money of the bank in excess of the amount the latter was permitted to loan to one person. The violation of the statute was before Andrews settled and gave the note upon which this action is founded.</p> <p>“ The ruling in Fowler v. Scully, 22 P. F. Smith 456, holding a mortgage void when given to secure future loans, because of violation of the 28th section of the National Bank Act, impelled me to apply the like principle to a violation of the 29th section in an action brought upon the note given by the borrower for the .money loaned. Perhaps, as contended on one part, the principle does not apply to both sections, but I have been unable to draw a distinction. I am not prepared to go further than I understand the authority of the decision in Fowler v. Scully, and, until better advised, cannot apply the rule to the case of one who, after the loan, upon some new and undisclosed arrangement, voluntarily gave another security.</p> <p>2. “ The defence made to the other portion of the note is, that it was given in renewal, continuance and settlement of loans and discounts made by the plaintiff to the Climax Mower and Reaper Company, for which Andrews was an accommodation endorser, upon the notes and renewals given from time to time by said company, beginning on the 9th day of May 1871, and ending December 20th 1872 ; that during said time lawful interest in Pennsylvania was 6 per cent.; that the plaintiff took, renewed, charged and received upon and out of the said loans and discounts a rate of interest at 10 and 12 per centum, as specified in a schedule, amounting in the aggregate to $1475.02, and has by law forfeited such sum to said Andrews, who has a legal set-off to that amount.</p> <p>“ On all the loans and discounts Andrews was an accommodation endorser. He borrowed no money, paid no interest, and has no right of action on account of illegal interest paid by the company. The affidavit and schedule show that the company at divers times borrowed a large amount of money from the plaintiff, all of which has been paid except $1824.37, the amount of the note in suit, after deducting $1100, — which sum grew out of Garfield’s business. By some arrangement this comparatively small sum then still owing by the company, was included in Andrews’s note endorsed by Bly. The affidavit avers that the company paid the interest. Not half the interest was paid within the last two years, the time limited within which to commence an action to recover it back. The 30th section of the National Bank Act provides that when illegal interest is knowingly reserved or charged, or agreed to be paid, it shall be held and adjudged a forfeiture of the entire interest which the note or evidence of debt carries with it. When it has been paid, the person paying the same, or his legal representative, may recover back, in action of debt, twice the amount of the interest thus paid, from the association taking or receiving the same.</p> <p>“ The right of action for the' usurious interest paid is in the Climax Mower and Reaper Company. That company may yet bring suit, if they have not settled the claim. Nothing appears to show' why any portion of the interest should be set off in favor of Andrews, except by a liberal construction of the affidavit, the sum of $82.42 be defalked as forfeiture, by reason of its having been charged at the rate of 10 per centum on the note in suit.</p> <p>“ The affidavit shows that Andrews became indebted to the, plaintiff on endorsements for Garfield, and for the Climax Mower and Reaper Company, and settled the same by giving his note, endorsed by Bly, at four months, to the plaintiff. Eor the reasons given, I am of the opinion it fails to disclose a good defence.”</p> <p>The court made the following order:—</p> <p>“And now, July 3d 1874, upon the plaintiff giving credit for $82.42, the amount of interest alleged to have been, charged on the note, rule made absolute as to balance of claim.”</p> <p>The defendant took a writ of error, and assigned errors as follows :—</p> <p>1. Refusing to deduct from plaintiffs’ claim the sum of $1148.53, being that part of the note which Andrews assumed by reason of his accommodation endorsements for Garfield, to W'hom plaintiffs’ loan was illegal.</p> <p>2. Refusing to deduct from plaintiffs’ claim the sum of $1475.02, being the amount of all the interest reserved and charged by the plaintiff in the whole series of discounts, as shown by the schedule attached to the affidavit of defence, the same being in every instance illegal and forfeit.</p> <p>3. Granting judgment in favor of the plaintiff, the affidavit containing a full and complete defence to the whole claim.</p>

. Error to the Court of Common Pleas of Crawford county: Of October and November Term 1875. This was an ejectment, brought February 18th 1874, by William H. Monroe against Reuben Smith. The land in dispute originally belonged to Rufus Montgomery, who conveyed it to John H. Balcom on the 29th of June 1859. On the 15th of February 1861, Balcom conveyed to Joseph De Hart, for the purpose of conveying to Mary R. Balcom, the wife of John H. Balcom.

<p>1. A lease of an hotel stipulated that the landlord would raise the house, add a new story, and make other alterations; the tenant alleging that the alterations had been negligently done, so that his furniture had been injured and he had lost the use of rooms in different stories, &e., refused to pay the rent on the ground that he suffered greater damage than its amount. The landlord distrained. In replevin, Held the evidence by the tenant of the rental value per day of the rooms of which he was deprived was inadmissible, because the offer was too vague, as not designating the story.</p> <p>2. If the evidence referred to the new story it was incompetent; the measure of damages being the difference between the value of the premises on being taken by the tenant and their value had the improvements been made.</p> <p>3. Evidence having been admitted for the landlord of the rental value of the bar-room, separate from the rest of the house, evidence that the tenant had engaged permanent boarders for the rooms in the new story was improperly rejected in rebuttal; but in each instance the evidence was incompetent.</p> <p>4. If the contract had been substantially complied with by the landlord, with such defects only as could be compensated by damages, the damages were to be assessed for the loss sustained during the period for which the rent was claimed.</p> <p>5. In fixing value of property and damages for breach of contracts the injury is to be ascertained by general evidence of the value and estimate of the damages.</p> <p>6. The court below having treated an objection to evidence as having been made in a proper time, and given the party an exception; that the evidence was not objected to till after it was given is not a ground of complaint in the Supreme Court.</p> <p>7. The rule as to the measure of damages stated in Schuylkill Nav. Co. v. Thoburn, 7 S. &'R. 411, is always followed and enforced in Pennsvlvania.</p>

<p>Error to the Court of Common Pleas of Crawford county: Of October and November Term 1874, No. 158.</p> <p>This was an action of assumpsit, brought February 14th 1874, by William Riddle against W. B. Roberts, J. W. Humphreys and W. H. Abbott. The cause of action was a guaranty of bond issued by the city of Titusville. The bond and guarantee (which was endorsed on it) were as follows:—</p> <p>1,1 It is hereby certified that the city of Titusville is indebted unto William Riddle in the sum of $10,000, redeemable .at the pleasure of the city of Titusville after the 24th day of April 1872, and payable on the 23d day of June 1872, with interest at the rate of eight per cent, per annum. * * * This debt is., authorized by the Act of Assembly of the state of Pennsylvania, approved the 8th day of March, A. D. 1872.”</p> <p>“ For value received, we, the undersigned, guaranty the payment of the within bond according to its terms. April 24th 1872.” The guaranty was signed by the three defendants.</p> <p>The affidavit of defence, filed March 18th 1874, was :—</p> <p>“ W. B. Roberts and W. II. Abbott, being duly sworn according to law, depose and say that they are two of the defendants in this case, and that they, together with their co-defendant, have a full, just, and, as they are informed by counsel, a legal defence to the whole of the plaintiff’s claim, the nature and character of which is as follows : That the defendants were simply guarantors for the payment of the bonds of the city of Titusville, upon which suit is brought, and not liable until after the said plaintiff, by due diligence in effort to collect said claim from the said city of Titus-ville, has failed by reason of the insolvency of said city ; that the plaintiff has not made proper efforts to collect said bonds'from the city of Titusville, the obligor, which said city has abundant assets, property and facilities for paying or,causing said bonds to be paid.” On the 21st of May 1874, the court entered judgment for the plaintiff for want of a sufficient affidavit of defence ; the damages were liquidated at $12,584.54.</p> <p>The defendants took a writ of error and assigned for error, entering judgment for want of an affidavit of defence.</p>

35. This was an action of assumpsit, brought January 8th 1874, by Jenks Budlong, to the use of The First National Bank of Mead-ville, against Thompson McGowan.

89. This was an action of ejectment, commenced to the January Term 1874 of the court below, by James B. McFadden and others, children and heirs at law of Lodiski McFadden, deceased, against Abel Drake and others.

<p>Error to the Court of Common Pleas of Crawford county: Of October and November Term 1875, No. 157.</p> <p>This was an action of assumpsit, brought April 6th 1874, by J. M. Mentz against The Lancaster Fire Insurance Company.</p> <p>The action was to recover for loss by fire of the plaintiffs stock of dry goods, insured by the defendants, in a storehouse in Titus-ville. The defence was that the plaintiff had, contrary to the stipulations in the policy, effected an additional insurance on his goods in the Armenia Insurance Company, without the consent of the defendants endorsed on his policy.</p> <p>The casé was tried, May 4th 1875, before Lowrie, P. J.</p> <p>It was admitted that Murray & Clow were agents in Titusville both of the defendants and The Armenia Insurance Company.</p> <p>The plaintiff gave in evidence policy No. 300 of the defendants, insuring his stock of store-goods in his storehouse in Titusville; the policy was dated July 8th 1873, and on the same day countersigned, “ Murray & Clow, agents.”</p> <p>One of the conditions of the policy was:—</p> <p>“ That if the insured, or any persons or parties interested, shall have existing, during the existence of this policy, any other contract or agreement for insurance (whether valid or not) against loss or damage by fire on the property hereby insured, or any part thereof, not consented to by this company in writing, and mentioned in or endorsed upon this policy, then this insurance shall be of no effect; and if consent be endorsed thereon, the insured shall not be entitled to demand or recover of this company any greater portion of loss or damage sustained than the amount hereby insured shall bear to the whole amount of such contracts or agreements for insurance (whether valid or not), or made before or after the date of this policy.”</p> <p>He gave in evidence also an insurance for $400, effected for him in The Armenia Insurance Company, by policy No. 545, dated October 13th 1873, on the same goods and in the same storehouse. He gave evidence also of the burning of the goods, the amount of loss, &c.</p> <p>He then offered to prove that the agent effecting the policy for The Armenia company had knowledge that an insurance for $600 had been before effected in the Lancaster company, he having been' the agent in effecting the same. And further, that at the time of effecting the second policy the witness called the attention of the agent to the fact that the notice of the second ought to be endorsed on the first policy, and notice .thereof given to the Lancaster company, and that when the agent returned the policy to the witness the agent told him that the proper endorsement had been made on the Lancaster policy, he having both policies in his possession, and the witness relied on this because he could not read English; neither could Mentz read English. This for the purpose of excusing the want of such notice and endorsement.</p> <p>The offer was objected to, because the policy requires that the fact'ought to be assented to by the first company and endorsed.</p> <p>The court rejected the offer and sealed a bill of exceptions.</p> <p>The plaintiff having closed his case, defendants moved for a non-suit. The motion was allowed, and judgment of nonsuit entered.</p> <p>The plaintiff' took a writ of error, and assigned for error the rejection of his offer of evidence, and entering a judgment of non-suit.</p>

<p>1. By a condition in a policy of insurance, in case of dispute touching the amount of the loss sustained, such dispute was to be submitted to arbitrators, one to be chosen by each party, with power to select a third in case of disagreement, their decision to be final; and no action, &c., should be maintained on the policy unless the loss, in case of such dispute, should have been first thus ascertained. Held, that this did not oust the jurisdiction of the courts.</p> <p>2. Such condition is an agreement to refer to arbitrators to be chosen at a future time, and is revocable; the party may be subject to an action of damages for the revocation.</p> <p>3. íhis condition being special is not without effect, but the company, to avail themselves of it, must show that they admitted the validity of the policy and their liability under it, and that the only question was the extent of the loss.</p> <p>4. When the dispute is of the character of an account involving the examination of books, the value of a large number of things and the extent of the damage, parties may agree that it shall be determined by men, as appraisers.</p>

<p>Appeals from the Court of Common Pleas No. 1 of Allegheny county : Of October and November Term 1875, No. 259 and 274.</p> <p>In the distribution of the proceeds of the sale of the real estate of William Clinton, an habitual drunkard.</p> <p>The report of George F. Gilmore, Esq., the auditor, showed the following facts:—</p> <p>On the 20th of May 1878, two mechanics’ liens, amounting together to $987.18, in; favor of Neal & Wampler; on the 10th of June, a mechanics’ lien for $62.48, in favor of G. W. Fisher; and on the 10th of September a mechanics’ lien for $50, in favor of A. T. Frick, were entered against Clinton.</p> <p>The description of the property in each case was: “ All that certain double two-story frame building, situate, &c.; said building is a double dwelling-house, two stories high, with a cellar under the same, and has a front 32 feet on, &c., and a depth of 32 feet, containing eight rooms and an attic.”</p> <p>There were two judgments against Clinton, entered respectively April 16th and May 5th 1873, amounting .together to $131.45.</p> <p>On the 9th of May 1873, M. L. Malone obtained a judgment against Clinton on warrant of attorney, dated May 8th 1873, for $5055.88; a rule had been granted by the court to open this judgment for want of consideration ; the rule was pending when the auditor made his report. There was also another judgment of Malone-against Clinton, entered May 9th 1873, for $341.95.</p> <p>There were a number of other judgments entered from May 13th 1873 to August 28th 1873; not necessary to particularize.</p> <p>On the 31st of October 1873, an inquest found that Clinton was an habitual drunkard, and had been so for a year prior to the finding.</p> <p>The real estate of Clinton was sold by his committee by order of the Court of Common Pleas, and the proceeds of sale, $3350, referred to Mr. Gilmore as auditor for distribution.</p> <p>Besides the judgments and mechanics’ liens, before referred to, the following claims were made on the fund:—</p> <p>Expenses in procuring and making the sale, . . $118.25</p> <p>Expense of the inquest, commissioner’s fee, . . 50.00</p> <p>Counsel fee of T. S. Parker, for conducting the proceedings in relation to the inquest ■ and as counsel generally for the committee, .... 410.00</p> <p>Business tax of Clinton, ..... 52.80</p> <p>And fees of jury of inquest, ..... 103.00</p> <p>(Both paid by his wife, which she claimed should be refunded to her.)</p> <p>Her claim as for exemption under an execution, . 300.00</p> <p>Committee’s compensation, ■. .... 150.00</p> <p>The auditor heard very much testimony on the question whether the structure against which the mechanics’ liens were entered constituted two buildings, and whether the liens, therefore, should be apportioned to each, under the Act of June 16th 1836, sect. 13, Pamph. L. 699, 2 Br. Purd. 1033, pi. 43, which provides: that when the claim shall'be a joint claim against two or more buildings, the claimant shall at the time he files his claim designate the amount which he claims to be due on each, otherwise he shall be postponed to subsequent lien creditors.</p> <p>He said:—</p> <p>“ On this question quite a number of witnesses have been called In describing the houses these witnesses do not differ materially as to the facts. The testimony of Valentine N. Elliott, a contractor and builder, if condensed somewhat, may be thus stated, and answers substantially for all the last-named witnesses (who considered the structure two houses): 'they are two distinct houses, as distinct as any two houses in a row ; completely divided by a studding partition, lathed and plastered on both sides from lower floor to top of attic, with no connecting doors between them. There is a separate front door for each house at opposite corners, and back doors the same. There are two separate sets of cellar stairs. The cellars are divided by the foundation for the double chimney in the centre of both, and by substantial boarding. The front yards are divided by a paling fence clear to front fence. They are separately occupied now. Architecturally speaking, and in common language, a double house has a hall in the middle and rooms on each side. The cellar walls are continuous, and the roof and outside boarding are continuous, and the sills also, as a matter of economy, as others build together on adjoining lots.’</p> <p>* * * " The witnesses on the other side testify as to the continuous sills, and boarding, and roofing, and casing; and that by cutting doors through one family could use it all as one house. *</p> <p>* * Mr. Wampler and Mr. Fisher both say they engaged to furnish materials for and do work on a building or house. Mr. Soles and Mr. Bradley, both long-time builders, say it is one house. In all other material facts all the witnesses agree in the description, substantially.</p> <p>“ The auditor is of the opinion that the testimony shows clearly that the structure in dispute constitutes two houses ; as distinctly so as any two or more houses in a row in Pittsburg or elsewhere.</p> <p>* * * If this fact of two houses, instead of one, is correctly found, then it follows that the liens must be postponed to the liens of other creditors ; because theirs was not apportioned.” * * *</p> <p>In stating the distribution as awarded by him,</p> <p>He allowed the claim of the commissioner holding the inquest; jury fees paid by Mrs. Clinton and claim for putting up hand-bills and subpoenaing witnesses, in all $172.00</p> <p>Taxes paid by Mrs. Clinton ; her exemption claim $300 and Mr. Parker’s counsel fee $410, in all . . . 762.80</p> <p>Expenses in relation to procuring and executing the order of sale and committee’s compensation $150, in all . 278.25</p> <p>After deducting the foregoing sums and the expenses of the audit, there remained for distribution . . 2010.45</p> <p>The auditor awarded the payment of the judgments of April 16th and May 5th 1873 to their holders ; also, to Malone his smaller judgment, which, according to his report, left the sum of $1537.05 for further distribution.</p> <p>Referring to the judgments posterior to Malone’s, he says:—</p> <p>“ It will be found that these seven last stated judgments will take all the balance of the fund, after allowing the prothonotary his fees for recording, &o., even if the large judgment to Malone is entirely swept away. The auditor sees no other mode of dealing with the balance of the fund, except in this alternative way, while the rule and contest are still pending in reference to said Malone judgment. If that judgment in whole or part is allowed to stand, it will come in first for payment; that is, before the seven last judgments, and according to the order a.nd date of the liens.”</p> <p>Malone excepted to the report of the auditor:—</p> <p>1. Allowing- from the fund for distribution the expenses of the inquest as to Clinton being an habitual drunkard, &c.</p> <p>2. Allowing Mrs. Clinton $300 “ exemption.”</p> <p>3. Allowing the amount paid by her for taxes $52.80.</p> <p>4. Not appropriating the whole fund, less expenses of sale and of the audit, to Malone’s judgment.</p> <p>The mechanics’ lien creditors excepted to the report.</p> <p>Not allowing their liens and deciding that the structure against which the liens were entered was two buildings.</p> <p>After argument of the exceptions, the Court of Common Pleas disallowed-the $300 “ exemption” and the taxes, $52.80, awarded to Mrs. Clinton, and with these modifications confirmed the report of the auditor.</p> <p>Neal & Wampler and Malone appealed to the Supreme Court.</p> <p>Neal & Wampler assigned for error: the confirmation of the auditor’s report; not allowing the claims of the mechanics’ lien creditors, and deciding that the structure was one building; deciding that Malone’s judgment was a valid lien and applying any of the proceeds of the sale to it.</p> <p>Malone assigned for error :—</p> <p>1. Decreeing payment of the claims of the commissioner holding the inquest; to Mrs. Clinton for amount paid the jurors holding the inquest; counsel fee to committee; cost of serving subpoenas, &c.</p> <p>2. Allowing out of the fund the expenses of the inquest as to Clinton’s habitual drunkenness.</p> <p>3. Not appropriating the whole fund, less expenses of sale and costs of audit, to Malone’s judgments.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1875, No. 260.</p> <p>This was a feigned issue, under the Sheriff’s Interpleader Act, made up between A. W. Enlow, plaintiff, and Charles Klein, to try the title to certain chattels levied on as the property of Casper Moritz, under an execution issued against him by Klein; Enlow, the plaintiff in the issue,, claiming that the property belonged to him.</p> <p>Enlow was the owner of the goods on the 27th of July 1871, and on that day entered into the following agreement with Moritz:—</p> <p>■ * * * “ The said A. W. Enlow, for the consideration hereinafter mentioned, doth agree to and with the said Moritz, by these presents, that he, the said Enlow, will furnish the said Moritz with a team of horses or mules, necessary wagons, gears, &c., necessary for country peddling.</p> <p>“In consideration whereof, the said Moritz, &c., do covenant and agree to and with the said A. W. Enlow, by these presents, that he, the said Moritz, &c., shall and will pay to the said A. W. Enlow, weekly, the sum of five dollars, the first payment to commence on the 20th of July 1871, and to be divided into two hundred weekly payments, and the team and wagon and other fixings to belong to and be managed by the said A. W. Enlow until the last of the two hundred payments; furthermore, the said Moritz agrees to keep up all repairs, such as shoeing, mending harness, wagon, and in case a horse or mule dies to replace the same at his own expense. Furthermore, the said A. W. Enlow agrees to relinquish all his right, &c., to the said team and fixtures for peddling to the said Moritz when the last payment is made of the said two hundred, and for the performance of all and every covenants aforesaid each of the said parties bindeth himself to the other in the penal sum of one hundred dollars.”</p> <p>On the 10th of June 1873, Moritz confessed a judgment to Klein for $327.40; an execution was issued to September Term 1873, and the goods in controversy, being two mules and harness, in the possession of Moritz under the foregoing agreement, were levied on, and upon the claim of Enlow that they belonged to him this issue was framed.</p> <p>It was tried, November 17th 1874, before Stowe, J.</p> <p>The plaintiff testified that $3 of the $5 per week were to go as payment of the goods, and $2 per week for their use; Moritz had paid him $210 up to May 26th 1872, and nothing since.</p> <p>There was other evidence, on the question of payment in full by Moritz, and as to the ownership of the team, &c.</p> <p>The court directed the jury torender a verdict for plaintiff, “subject to opinion of court on question of law reserved, as to whether the article-of agreement in evidence between Enlow and Moritz was such as protected the property therein mentioned in the possession of Moritz from his. execution-creditor, the plaintiff in this case, viz.: whether said agreement was a mere bailment, or a contract of sale.”</p> <p>The verdict was accordingly for the plaintiff. Judgment was afterwards entered on the verdict on the point reserved for the plaintiff. This was assigned for error by the defendant, on the removal of the record to the Supreme Court by writ of error.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county : Of October and November Term 1875, No. 267.</p> <p>This was an action of assumpsit, brought December 2d 1874, by A. J. Pentecost against The Union Refining and Storing Company.</p> <p>' The foundation of the claim of the plaintiff, who was an auctioneer, was the' following paper:—</p> <p>“ Pittsburgh, Sept. 17th 1874.</p> <p>“ A. J. Pentecost, Dear Sir:</p> <p>•“ You will please go on and have plans of part of our property on Herr’s Island, say about 43 lots, printed; also advertise sale for Sept. 28th. -We agree to pay expenses of printing and surveying, and on all sales made for us under the advice and consent of our committee, we agree to pay you a commission of one per cent.</p> <p>Yours truly,</p> <p>Union Refining and Storing Co.</p> <p>By Jos. Kirkpatrick, President.”</p> <p>The plaintiff’s affidavit of claim was for an indebtedness of $1272.79, for commissions on sale of real estate, expenses of printing and other expenses.</p> <p>The account accompanying the affidavit contained bills paid for advertising in nine newspapers, amounting to $1809,62, commissioners at one per cent ón sales, $20.52, also crying sales and other expenses; the whole bill amounted to $1402.79, on account of which $180 had been paid. The declaration was in the common money counts.</p> <p>The case was tried April 8th 1875, before Collier, J.</p> <p>The plaintiff testified in support of his claims.</p> <p>On cross-examination he said that on account of his large amount of advertising, discounts of 25 per cent, or more from the ordinary “ card rates ” of advertising were allowed him by the printer, and that he charged the defendants at what were the ordinary rates. Some of the bills were paid after the commencement of this suit.</p> <p>The following are points of the defendants: they were refused.</p> <p>2. Defendants are not obliged to pay to the plaintiff more than he actually paid himself for advertising. Any discount allowed to him on the bills for this expense is for the benefit of the defendants, and plaintiff cannot recover the amount of this discount from defendant.</p> <p>3. Plaintiff cannot recover in this action for any money paid by him for defendants since the bringing of the suit.</p> <p>The verdict was for the plaintiff for $1294.79.</p> <p>The defendants took a writ of error and assigned for error the refusal of their points.</p>

<p>1. In a suit against a refiner and vendor of petroleum for the death of plaintiff’s husband, alleged to have been caused by the explosion of the oil, the allegation' and evidence of plaintiff were that the oil exploded in a lamp in his hand whilst he was walking quietly ; the defendant’s allegation and evidence were that the death was caused by his tripping and falling with the lamp in his hand. In charging, the court said, “ Was the death occasioned by the explosion at the time and in the manner claimed by the plaintiff? In regard to this there can be no doubt whatever.” Held to be error; whether the death was caused by the explosion as alleged by the plaintiff was for the jury.</p> <p>2. The declaration averred that the defendants wilfullly sold the oil for lighting purposes, “ knowing that it was highly inflammable, explosive and unsafe,” &c. There was evidence that the oil had been sold by defendants, but none that the sale was with wilful knowledge of its dangerous character: Hdd to be error to submit the case to the jury.</p> <p>3. Statements as to the cause of the accident made by the deceased at and about the time of its occurrence, whilst he was covered with fire, were competent evidence as part of res gestos.</p> <p>4. The fact that the oil had passed through a number of intervening vendors before it was procured by the deceased, would not prevent a recovery against the defendants, if their guilty knowledge and the identity of the oil were established.</p> <p>5. The responsibility of the manufacturers would attach from their putting the oil on the market and holding out that it might be safely used as illuminating oil.</p>

<p>Error to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1875, No. 73.</p> <p>At the September Term 1874, of the Court of Quarter Sessions, an indictment was found against James A. Hunter and Agatha Hunter, that they “ with force and arms, feloniously did make an assault upon one Samuel Floyd, &c., * * * and that the said James A. Hunter, in his right hand then and there had and held (a pistol, and) feloniously did then and there shoot at the said Samuel Floyd with intent, him, the said Samuel Floyd, then and there feloniously to kill and murder. And that the said Agatha Hunter, at the time of the committing of the felony and assault aforesaid, &c., * * * was there present, aiding, helping, abetting, assisting, comforting and maintaining the said James A. Hunter in the felony and assault aforesaid, in manner and form aforesaid, to do, commit, and perpetrate. And so the inquest aforesaid, &c., do say that the said James A. Hunter and the said Agatha Hunter then and there, in manner and form aforesaid, feloniously did shoot at the said Samuel Floyd with intent, him, the said Samuel Floyd, then and there, feloniously to kill and murder, contrary to the form of the Act of the General Assembly,” &e.</p> <p>The indictment was tried November 23d. 1874, and the jury found “ the defendants, James A. Hunter and Agatha Hunter, guilty of an assault.”</p> <p>On the 28th November 1874, the defendants moved in arrest of judgment, for the following reason</p> <p>“ That the indictment, containing but one count, charged a felony, of which offence the jury acquitted, but found defendants guilty of a misdemeanor, upon which finding no judgment can be entered, because the greater offence contains the lesser, and the latter was merged in the former; because there is no statute authorizing it; no decision of the Supreme Court changing' the common law and practice, and at common law, both in England and here, no such judgment could be entered on such a finding.”</p> <p>On the 2d of January 1875, the motion was overruled and James A. Hunter was sentenced to pay a fine of $200 and be imprisoned for ten months.</p> <p>James A. Hunter took a writ of error and assigned for error, that the court erred :—</p> <p>1. In overruling defendant’s motion in arrest of judgment.</p> <p>2. In holding that a conviction could be had for a misdemeanor in an indictment charging a felony alone.</p>