Volume 8 — Sadler's Pennsylvania Reports

The action was brought by Sarah Kramer and George Kramer, her husband, in favor of the wife, to recover the value of a boiler, smokestack, engine and fixtures, taken by the defendants and converted to their use. Mrs. Kramer claims title to the property by purchase at a constable’s sale, had upon an execution issued upon a judgment of the husband, George Kramer, against W. G. Hunter and G. W. Crawford, rendered by John T. Bell, Esq., a justice of the peace.

Upon entering tbe judgment tbe court below, Neale, P. J., filed tbe following opinion: In tbe matter of tbe appeal of tbe overseers of tbe poor of Donegal township from an order of removal of February 18, 1885, removing Emma Wolford from Sugarcreek township, Armstrong county, Pa,., to Donegal township, Butler county, the facts, as nearly as can be gathered from the evidence, are as follows : Prior to the year 1855, Andrew Wolford and Mary Ann Wolford, his wife, were living…

Errors to the Common Pleas of Lehigh Comity to review judgments for defendants in actions to recover assessments for unpaid instalments on the stock of an insolvent banking corporation. Held: and which is dated May 6, 1870. By that certificate it appears that he held 25 shares of stock; that $4 per share had been paid; and that he held his stock subject to the payment of the unpaid instalments as they might ■be legally required.

This suit was brought by the Laflin & Hand Powder Company against Arthur Frothingham to recover the amount of a bill for powder, which the plaintiff claims to have sold and delivered to the defendant beginning in October, 1882, and terminating in January, 1883.

Charles Guth by deed dated March 31, 1877, conveyed all his property to Edwin C. Jacoby for the benefit of his creditors. The assignee, under the provisions of the act of February 17, 1876, applied to the court for an order for the sale of the real estate. The court, on October 1, 1877, granted an order of sale to which the assignee made return that he had sold the real estate to Daniel Stetler for the sum of $2,030.

Certiorari sur appeal from a decree of the Common Pleas of Lehigh County allowing a claim against a debtor’s estate upon the distribution of the proceeds thereof derived by sheriffs sale.

<p>Error to the Common Pleas of Lehigh County to review a judgment for plaintiffs in foreign attachment proceedings to recover money due upon a contract.</p> <p>The facts and questions of law raised by this case sufficiently appear in the charge given in the court below, by Axbbight, P. J., the material portions of which are as follows:</p> <p>It appears that in the year 1877, Panles & Co., the plaintiffs, were engaged in the quarrying, manufacturing, and selling of slate near Slatington, in this county, and that Mr. Pratt was a dealer in slate in the city of New York. Prom the letters and telegrams passing between the parties, and from what was said by them on the witness stand in this trial, by way of admission, it appears that in the latter part of September, 1877, the plaintiffs and defendant agreed that the plaintiffs, Paules & Company, should deliver a certain quantity of slate to Mr. Pratt on the cars somewhere in the neighborhood of Slatington, where their quarry was, at the price of $3.25 per square, and that it was agreed that the slate should be strictly No. 1, free from scabs and greybaeks. It also appears that on September 29, and October 1 and 2, 1877, the plaintiffs did ship to Mr. Pratt 11 carloads of slate, aggregating 468 squares and a fraction of a square; and that this slate reached Mr. Pratt at New York is admitted by him. This slate at the contract price amounts to $1,521.35.</p> <p>The plaintiffs admit that they have received $1,033.08, leaving a balance of $488.27, which the plaintiffs claim with interest from January 2, 1878.</p> <p>The defendant alleges that the plaintiffs are not entitled to this sum, because the slate shipped was not according to contract, and that the defendant, by reason of the inferior quality of the slate and by reason of its not being according to the contract, had damages. Those damages the defendant says amount to more than the plaintiffs’ claim, or at least, as the defendant says, to a considerable sum, which the defendant seeks to have deducted from the plaintiffs’ claim. It is plain that the plaintiffs are entitled to recover $488.27 with interest, unless the defendant has made out the defense which he has set up to defeat lliis claim.</p> <p>It appears from the defendant’s testimony that this slate reached the port of Perth Amboy, near New York, where it was taken by barges to New York, preparatory to being loaded upon a ship to convey them to Australia for the market. It would seem that it was intended for that market, which was known to the parties contracting. The defendant contends that the slate, when it reached New York, was not according to contract, because there were scabs and greybaeks in it, and also that there was a considerable amount of breakage; more, the defendant says, than is allowed by the custom of trade, which the plaintiffs •also say is about 2 per cent.</p> <p>The defendant alleges that he had sold this slate to another New York dealer, who was about shipping it to Australia, to ■other dealers or customers, or for the market generally; that after the long time which had elapsed, when the slate had reached Australia, and returns had come back to New York, it was found there was a great loss by reason of breakage and inferior quality of slate, and that he, Mr. Pratt, had to make good that loss to the parties to whom he sold; and he says that such loss was $490; and that sum he asks to have set off against the plaintiffs’ claim.</p> <p>He further tells you that he sent for a man by the name of Shipherd, who, it seems, was interested in this quarry, in some form, as the landlord of Paules & Company, to come to the vessel where the slate was being loaded, to see about the complaints which Pratt’s customer was making in regard to the slate; and then it is alleged that it was agreed between them in a certain way concerning deductions; or that Mr. Pratt should be made whole for breakages and for losses which should be suffered by his customers in Australia.</p> <p>Mr. Pratt says that he and Mr. Shipherd agreed to allow them the excess of breakage over 4 per cent to Australia, and allow them any loss they might sustain from the inferiority of quality as compared with American slate, particularly with a lot of Chapman slate they had purchased from the quarry, going over on the same vessel.</p> <p>I say to you that the defendant is not entitled to have, under the evidence, the $490 deducted; and I say further to you that there is no evidence here as to what the breakage was when the slate reached Australia; and there is no evidence here from which the jury can find what the loss was on the sales in Australia because of -inferiority of quality. If Mr. Pratt had shown the losses said to have been sustained by the sales in Australia, then it would be otherwise; but it is his misfortune that he has not the evidence here to prove that. All that we have is mere hearsay.</p> <p>Mr. Pratt’s customer, to whom he sold this slate, and who consigned it to Australia, according to Pratt’s testimony, simply told him (Pratt) that he had these losses on his sales in Australia. That, however, is not proved. Mr. Pratt does not know that those losses occurred in Australia; nor did Mr. Pratt’s customer know, because he was not there. It would be acting upon mere hearsay to say that the loss was $490, or that there is any evidence of loss on the slate as it reached Australia and found its market there.</p> <p>I therefore say to you that it is not proved, in so far as any •contract with Shipherd is concerned, — even if it could be found that Paules & Company afterwards ratified what Shipherd had promised, — that the loss ensued according to contract, which the •defendant had with Shipherd. The case is accordingly simplified and comes down to this: Is it proved that the slate deliv•ered to the defendant was not according to contract?</p> <p>[The contract was that the slate was to be strictly No. 1, and free from scabs and greybacks, and the contract also was that it was to be delivered on the cars at or near Slatington; and the ■condition at the places of delivery is what is to govern. If de- ■ livered on the cars according to contract by Paules & Company, then they performed their part of the contract, and are entitled to the whole contract price. If not of that quality, and the ■defendant has shown what his damages are, according to the rule I will state presently, you will allow the defendant whatever his damages amount to, and render a verdict accordingly.</p> <p>It has been argued on plaintiff’s part that the condition of the slate when it reached the cars at Slatington is to govern, and not the condition in New York after having been handled once or twice. That is true. There is no evidence what the breakage was when delivered on the cars at Slatington. What slate broke after they left Slatington, Paules & Company would not be Tesponsible for.]</p> <p>It is alleged by the defendant that there were scabs and greybacks in it, and that it did not come up to the quality of No. 1 slate as contracted for. It is for you to say how that is. It would seem to me that if the slate was of inferior quality, whether as to size or thickness, or as to being scabs and greyhacks when it reached New York, it must have been the same when loaded; it is not likely it became scabs and greybacks in “the process of transportation from Slatington to New York.</p> <p>Mr. Pratt was to have been furnished with slate of the quality No. 1, free from scabs and greybacks. Unless the defendant has shown that this slate was of an inferior quality, had scabs and greybacks, he has failed in his defense, and the plaintiffs can recover all that they claim in this case. If he has satisfied you that the slate was not No. 1, and had these defects and has also satisfied you what the damages were by reason of that, you will allow him a deduction for the amount you find those damages to be.</p> <p>Mr. Pratt has said that when he examined this slate at New York it was not of the quality and kind ordered, and he has told you what opportunity he had for seeing the slate there while in process of being handled. You will consider from what he said how much he knew about them. He has told you that the slate he received was not better, than No. 2 quality, and that there were plenty of scabs and greybacks. In the letters which passed between the parties some reference is made to the quality of the slate, in regard to its being No. 1 and free-from scabs and greybacks. There is nothing in those letters which requires construing by the court. If you find anything in the letters which throws any light upon the subject, as to. whether Paules & Company admitted that the slate was not according to the contract, you can consider that evidence.</p> <p>If the defendant has satisfied you that it was not according to. contract, and has satisfied you as to what his damage was in that respect, you will allow him the benefit of that damage.</p> <p>Mr. Pratt was entitled, under the contract, to have No. 1 slate, free from scabs and greybacks; and, if he has shown to you that it was not of that quality, you will inquire how much less it was worth than it would have been if according to contract; and the difference will be his damage.</p> <p>You will ask yourselves, if you reach that qtiestion, how much it was worth if not according to the contract; what it was worth in the condition you find it to have been.</p> <p>The defendant says that he has proved that the slate was no better than No. 2. Is it proved ? If it is, you will inquire what No. 2 was worth. If, however, you should find that it is proved that it was no better than No. 2, and not according to contract, and the defendant has shown how much in dollars and cents his damage amounted to, you will allow him the benefit of that damage.</p> <p>If the defendant has failed in making out his defense, the plaintiffs are entitled to a verdict for the whole amount claimed.</p> <p>The jury returned a verdict for plaintiffs, and defendant took this writ, assigning for error the action of the court as indicated in the above brackets.</p>

S. A. Bridges, deceased, J. E. Zimerman, and Edwin Zimerman executed the following bond: Know all men by these presents, That we, Samuel A. Bridges, Jacob E. Zimerman, and Edwin Zimerman, all of the city of Allentown, in the county of Lehigh, and state of Pennsylvania, are jointly and severally held and firmly bound unto Jesse Gruver, of the county and state aforesaid, in the sum of $5,000, lawful money of the United States of America, to be paid to the said Jesse Gruver,…

<p>Certiorari to the Court of Quarter Sessions of Lackawanna County to review proceedings for the incorporation of the Borough of La Plume.</p> <p>The questions raised by this certiorari sufficiently appear in the opinion of the court.</p>

Errors to the Common Pleas of Lehigh County to review judgments for plaintiff in actions of covenant. The facts of the case as given on behalf of the plaintiff Biery are as follows: This is an action of covenant brought on an instrument in writing, under seal, dated August 25, 1870. The action was brought by Daniel App against John H. Biery, to recover contribution for money which Daniel App had expended in a lawsuit against him.

<p>Appeal and certiorari to review the judgment of the Common Pleas of McKean County in equity.</p> <p>The facts appear in the opinion of the court below, on exceptions to the report of the master, by Oi.msted, P. J.:</p> <p>“The plaintiffs and defendants, on October 15, 1878, entered into a contract in which it was recited that the plaintiffs were the owners of certain letters patent for improvements in the construction of drilling jars, or jar fillings, and that the defendant desired to manufacture said jars for sale and use. The contract then provides as follows:</p> <p>“ ‘Now, therefore, the parties of the first part hereby agree to, And do, license the said second parties to manufacture and sell said jars and jar fillings at their place of business in Bradford, McKean county, Pennsylvania, as long as they perform the stipulations and agreements herein specified to be performed by ■said second parties.</p> <p>“ ‘In consideration whereof, the said parties of the second part agree to render to the said first parties, their heirs or assigns, on or before the 5th day of each and every month, a full, true and perfect statement of all jars and jar fillings made during the preceding month, and to whom sold; which statement shall be verified by the affidavit of the parties of the second part ■or their agent. And the said parties of the' second part agree •to pay to said first parties, their heirs or assigns, at the time said statement is rendered, the sum of $10 as royalty for each and every jar or jar filling so made during the preceding month.</p> <p>“ ‘The said parties of the second part further agree that in •case of any default in making the statement and payments herein provided, then the agreement shall be considered null and void, and the license granted to said second parties shall be forfeited, at the option of the parties of the first part.’</p> <p>“It appears, from the evidence, and from the report of the master, that the defendants entered upon the manufacture of these jars at their place of business at Bradford, Pennsylvania, •and continued to manufacture jars up to the 4th day of June, 1885, when the plaintiffs’ patent expired by its own limitation.</p> <p>“The plaintiffs’ bill in this ease prays for an account under the contract, for discovery in aid of the account, and for an injunction restraining the defendants from manufacturing jars •or jar fillings other than those covered by the contract of the 15th of October, a. d. ISIS. On the 2d of April, 1881, a preliminary injunction was ordered, restraining the defendants from manufacturing any jars other than those covered by the patent to the plaintiffs in this case. The defendants’ answer was then filed; and on the 24th day of November, 1882, the decree of April, 1881, was amended by adding the words: ‘And that the defendants account to plaintiffs as provided for in this bill of complaint, and that the master, heretofore appointed in this case, state said account.’</p> <p>“Subsequently, a motion was made by the solicitor for the defendants to amend the decree for an account, and it was amended by the court by adding the words: ‘And to so much of the account as accrued after December 14, 1880, the master is also-to take and report the testimony, and his opinion thereon, affecting the liability of the defendants to account after the said date.’</p> <p>“The proceedings in the case are voluminous, but probably no. further reference to them is necessary for a proper understanding of the questions raised by the exceptions to the master’s report.</p> <p>“The exceptions filed by the counsel for plaintiffs are numerous; they are forty-nine in number, but they seem to raise-but three questions. The first question raised is: When does-the liability of the defendants to account under the contract cease ? The contract itself is indefinite as to time; it gives the* plaintiffs the power, at their option, to terminate it, and declare-the license forfeited at any time when the defendants shall make default in making the statements and payments required of' them by the contract. The expiration of the patent on the 4th day of June, 1885, of course terminated the license. It is fair-to presume that the parties negotiated with full knowledge of the duration of the patent, and that they had that period in view. The plaintiffs, in case of default on the part of defendants,, could terminate it at any time; but the permission was evidently-intended for the benefit of the plaintiffs, and it did not enable-the defendants at their option to terminate the contract by simply refusing to comply with its terms, and neglecting and refusing to make statements and payments as they agreed to do.</p> <p>“The defendants were licensed to use the plaintiffs’ property;. they were not bound to make any specified number of jars nor„ indeed, to make any jars at all. If the defendants did not avail themselves of the power which they acquired under the license,, if they made no jars such as were covered by the plaintiffs’ patent, they could not be called upon to account. If they had made an improvident or unwise contract, they had the power of' protection from it in their own hands. But they enter upon-the manufacture of these jars under this license, and account under the contract up to such period as they might themselves select, and, while continuing in the manufacture of the jars, terminate their liability to account under the contract by giving the plaintiffs notice that they will continue to manufacture; but they will not account or pay. They enjoyed the advantages which they contracted for, and they are bound to pay the consideration therefor so long as they manufacture these jars, or until the expiration of the patent.</p> <p>“That the learned master erred in his legal conclusion upon this question seems to us too clear for argument. Of course the parties who made this contract could have terminated it on the 14th day of December, 1880, by an agreement then made to do so; but the master does not find, as matter of fact, that it was terminated then by agreement of the parties; but he finds its determination as a matter of law because the defendants, on this date, renounced the license.</p> <p>“We do not discover anything in the position of the plaintiffs that precludes them from asking for an account up to the termination of the patent. At the time of the filing of the bill in this case, the defendants confessedly had neglected or refused to make monthly statements as required by the contract and were continuing to manufacture jars such as were covered by the plaintiffs’ license. The plaintiffs could, therefore, properly ask for an account; and the fact that the plaintiffs sought for and obtained an injunction, restraining the defendants from manufacturing jars other than those covered by the patent, cannot operate to prevent an account for the whole period of time during which the defendants were engaged in manufacturing jars that confessedly were of the kind covered by the patent. We conclude, as before stated, that the learned master erred in his finding that the plaintiffs were not entitled to an account for jars manufactured subsequent to the 24th day of December, 1880.</p> <p>“The plaintiffs’ exceptions raise a further question as to the liability of the defendants to account for jars sold by them, and returned because defective, either from imperfect materials used in the construction or defective workmanship. We think a fair construction of the contract is that the defendants were liable to account and pay for the jars manufactured by them and sold; and that a jar nominally sold, but returned because not a merchantable jar, cannot be considered as a jar sold within the meaning of the contract. We think, therefore, that the master was correct in his finding that jars returned to the defendants because of such defaults as made them unmerchantable should not be included in this accounting.</p> <p>“The plaintiffs’ exceptions raise a further question growing out of the fact of the manufacture of jars by the defendants, alleged by the defendants not to be of a kind covered by the plaintiffs’ patent. It will be observed that the defendants, by their contract, agree not to manufacture or sell any jars or jar fillings other than those covered by the plaintiffs’ patent during the continuance of the agreement. The plaintiffs’ patent seems to have been on a combination of iron and steel in the manufacture of drilling jars, so as to secure the necessary tensile strength in the parts subject to the greatest longitudinal strain, and the hardness of steel to the parts which receive or give the blow, and which are subject to great frictional wear; and this purpose was obtained by welding into the wrought-iron jars a steel headpiece to receive the blow, and by making the inner faces of the link bars of steel where the frictional wear is greatest.</p> <p>“The master finds that 197 jars manufactured by the defendants, and included in their return were not made under the letters patent. If the plaintiffs sustained injury by the violation of the contract on the part of the defendants in this respect, they have a remedy; but we do not see how, under the pleadings in the case, and from the evidence as reported by the master, we can adjust the damage which the plaintiffs may have sustained, in this accounting. The plaintiffs’ bill is for an account for royalties under the contract; and, if we go outside of the contract, Ave cannot see what there is in the evidence before us by Avhich we can fix the amount of royalty which the plaintiffs should receive for such jars manufactured by the defendants, upon which the plaintiffs had no patent and upon which they were not, therefore, entitled to claim royalty at all.</p> <p>“We are not unmindful of, nor do we intend to disregard, the general rule that, when once a court of equity acquires jurisdiction and control of a case, it will settle and determine the whole controversy between the parties; bnt we do not see how we can make it apply here. We are not clearly able to see how the master found from the evidence that there was so great a number as 197 jars that were not covered by the patent. It may be conceded that, as the patent is for a combination of iron and steel so as to obtain certain results, a jar manufactured entirely of iron or entirely of steel would not be covered by the patent, and could not, therefore, if we are right in our conclusion above stated, be brought into this account; and the defendants, in their statement of account rendered to the master, returned 197 jars as being made of steel; but, on examination of the defendants’ evidence, it appears that the jars in this schedule called steel jars were not made entirely of steel, but were partly iron and partly steel.</p> <p>“Mr. Seyfang says: ‘The steel jars mentioned in my statement as steel jars were not all steel, including boxes and pins.’ The same witness further testifies: ‘We have made very few of all solid steel.’</p> <p>“It is quite apparent that the bulk of the 197 jars called steel jars were partly'of steel and partly of iron; and the question at once presents itself whether these jars, made as they were, are ■covered by the patent, and therefore the subject of this account. The patentee claims, in his specifications forming part of thé letters patent, after describing the manner of the combination ■of the iron and steel:</p> <p>“1. The manufacture of drilling jars of combined iron and ■steel in which, at least, the part in each half of the jars that receives the blow, and the inner faces of the link bars shall be of steel, substantially as and for the purposes described. 2. The hereinbefore-described drilling jars constructed of wrought iron and steel combined substantially in the manner and for the purpose set forth. The draft of the patent, and the description thereof, in the application, shows a hammer face of steel, link bars lined with steel to avoid friction, and the balance of the link bars of iron to obtain tensile strength.</p> <p>“We incline to adopt the conclusion of the learned master that, if the head piece or hammer face is of steel, and the link bars also of steel, it would not be a use of the combination of iron and steel upon which the plaintiffs’ patent is based. .</p> <p>“If the master is right in his conclusion from the evidence that the defendants did not avail themselves of the combination of iron and steel as described in the plaintiffs’ patent in the manufacture of the 197 jars, we think he did right in excluding them from the account. It is difficult to determine the number made from the evidence; but we cannot say that the number stated by the master, 197, is too great.</p> <p>“The plaintiffs’ exceptions, so far as they relate to the period of time to be covered by this accounting, are sustained. The balance of them are not sustained, but they are overruled. The defendants’ exceptions are overruled.”</p> <p>The court entered judgment against the defendants for a sum named, with costs. The defendants thereupon took this appeal.</p> <p>The specifications of error raise several questions not touched upon in the above opinion.</p> <p>The answer of the defendants to the plaintiffs’ bill denied, in the first paragraph, that the plaintiffs were the original inventors or assignees of the inventors of the improvements in drilling jars, or that plaintiffs had the right to the exclusive use of the improvement or to license others; and alleged that such invention was publicly used by others prior to the patent The plaintiffs demurred to the above paragraph, and the court sustained the demurrer and struck out the paragraph. Second assignment of error.</p> <p>The defendants, appellants, further assigned as error the action of the court in sustaining “plaintiffs’ exceptions to the master’s report, so far as they relate to the period of time to be covered by the accounting,” quoting the exceptions; also in dismissing the defendants’ exceptions, quoting them and making each a separate assignment. The exceptions were, in substance, that the plaintiffs had no title to the letters patent, and had m> right to bring this action on the agreement set forth in the bill; that the bill should have been dismissed for want of equity at the costs of the plaintiffs; and that the defendants should not have been ordered to pay to the plaintiffs the sum recommended, with costs.</p> <p>Under the pleadings, it must be held that the plaintiffs have no title to the patent mentioned in the bill and agreement. The allegation of that fact in the bill is expressly denied in the answer. Matter of estoppel must be specially pleaded as such. Bowman v. Rostron, 2 Ad. & El. 295; Curtis, Patents, § 199; 1 Chitty, PL 509, 603, 227, 611; Freeman v. Cooke, 6 Dowl. & L. 187; Queen v. Haughton, 1 EL & Bl. 501.</p> <p>The answer is responsive to the bill, and therefore conclusive in favor of the defendants. Eaton’s Appeal, 66 Pa. 483 Burke’s Appeal, 11 W. N. C. 501.</p> <p>The bill should be dismissed for want of jurisdiction. The plaintiffs claim that all jars made, whether under the patent or not, were subject to the royalty; hence, they could not need an injunction. The agreement was in restraint of trade, aud plaintiffs should be left to their remedies at law. Keeler v. Taylor,, 53 Pa. 467, 91 Am. Dec. 221; Gompers v. Rochester, 56 Pa. 194; Harkinson’s Appeal, 78 Pa. 196, 21 Am. Rep. 9; Gillis v. Hall, 2 Brewst. (Pa.) 342.</p> <p>Nor should the bill be sustained for an account. The items: are all on one side. It is a mere question of how many jars were made. Grubb’s Appeal, 90 Pa. 228; Passyunk Bldg. Asso.’s Appeal, 83 Pa. 441.</p> <p>A bill for an account must aver an indebtedness to the plaintiff, at the time of filing it. Yolmer v. McCauley, 7 Phila. 382; Metz Bros. v. Earnham, 8 Phila. 267.</p> <p>All the discovery sought or obtained could have been had in an action of assumpsit. Milne’s Appeal (Pa.) 2 Cent. Rep. 34, 2 Atl. 534.</p> <p>The license ended December 14, 1880, when the defendants, surrendered their license and made themselves liable thereafter to be sued only in the United States courts. White v. Lee, 5-Bann. & Ard. 572, 3 Eed. 222; Moody v. Taber, 1 Bann. & Ard. 41, Eed. Cas. No. 9,747.</p> <p>Even in a lease, when an option is given, the option is- that, of the lessee. Dann v. Spurrier, 3 Bos. & P. 399,- 442, 7 Yes.. Jr. 231; Price v. Dyer, 17 Yes. Jr. 363; Doe ex dem. Webb v-Dixon, 9 East, 16; Doe ex dem. Lockwood v. Clarke, 8 East, 185; Doe ex dem. Norfolk v. Hawke, 2 East, 481; Com. ex rel. McNeile v. Philadelphia County, 3 Brewst. (Pa.) 539.</p> <p>This cause should not have been referred to a master before there was an interlocutory decree finding a liability to account. Collyer v. Collyer, 38 Pa. 257.</p> <p>The title of the plaintiffs is admitted by the contract between the parties, which estops the defendants. Curtis, Patents, §§ 215-217.</p> <p>The jurisdiction of equity restraining by injunction the breach of a trade contract is clear. Kerr, Inj. 493 ; McOlurg’s Appeal, 58 Pa. 51; Butler v. Burleson, 16 Vt. 176.</p> <p>The cases cited by the other side are plainly distinguishable. They all show, when examined, that contracts like this are not in restraint of trade.</p> <p>The act of October 13, 1840 (Brightly’s Purdon’s Digest, 692), provides: “'The several . . . courts of common pleas, within this commonwealth, shall have all the powers and jurisdiction of courts of chancery in settling partnership accounts and such other accounts and claims as, by the common law and usages of this commonwealth, have heretofore been settled by the action of account render; and it shall be in the power of the party desirous to commence such action, to proceed either by bill in chancery or at common law.”</p> <p>In Dick’s Appeal, reported in 106 Pa. 589, Mr. Justice Trnukey, in delivering the opinion of the court, said: “The learned judge of the common pleas rightly ruled that the bill set out a case suable in account render, and therefore within the general statute of 1840.”</p> <p>Further reference on the same subject is made to the following: Wesley Church v. Moore, 10 Pa. 273-279; Shriver v. Nimick, 41 Pa. 80; Danzeisen’s Appeal, 73 Pa. 65; Allison’s Appeal, 77 Pa. 221; Wilhelm’s Appeal, 79 Pa. 120; Passyunk Bldg. Asso.’s Appeal, 83 Pa. 441; Darlington’s Appeal, 86 Pa. 512, 27 Am. Rep. 726; Ressler v. Witner, 1 Pearson (Pa.) 174; Gandolfo v. Hood, 1 Pearson,(Pa.) 269; Adam’s Eq. 57, §§ 1-3, 182, 183, and notes, § 77; Bispham, Eq. 526, §§ 481 et seqBrightly, Eq. 118, 121, 125; 1 Story, Eq. 64, 69, 439; Post v. Kimberly, 9 Johns. 493; Taylor v. Taylor, 43 N. Y. 584.</p> <p>The prayer in the bill for general relief entitles the complainant to any relief which is consistent with the case made in the bill. Bailey v. Burton, 8 Wend. 344; Wilkin v. Wilkin, 1 Johns. Ch. 117; Story, Eq. PI. 40, 41, and note; Traip v. Gould, 15 Me. 82; Brown v. M’Donald, 1 Hill, Eq. 302; 1 Dan. Ch. Pr. 383, and cases cited; Beaumont v. Boultbee, 5 Yes. Jr. 485; Palk v. Clinton, 12 Yes. Jr. 63; Bead v. Cramer, 2 N. J. Eq. 277, 34 Am. Dec. 204; Bleeker v. Bingham, 3 Paige, 246; Delaware & H. Canal Co. v. Pennsylvania Coal Co. 21 Pa. 131.</p> <p>The bill in this case being for discovery also, it will be made effectual for the purpose of full relief. Story, Eq. § 64; Gloninger v. Hazard, 42 Pa. 401; Adley v. Whitstable Co. 17 Yes. Jr. 323 ; Byle v. Haggie, 1 Jac. & W. 236; Mackensie v. Johnston, 4 Madd. 373; Bank of Kentucky v. Schuylkill Bank, 1 Pars. Sel. Eq. Cas. 219, 235; Hare, Discovery on Ev. 8.</p> <p>The defendants could not rescind this contract and yet use the patent. The option to rescind was for the plaintiffs alone. Patterson’s Appeal, 99 Pa. 521, more fully reported in 11 W. N. C. 572.</p> <p>Equity having taken cognizance of litigation will dispose of every feature of dispute. Brightly, Eq. § 124; 1 Story, Eq. § 457; Bank of United States v. Biddle, 2 Pars. Sel. Eq. Cas. 52 ; McGowún v. Bemington, 12 Pa. 56, 51 Am. Dec. 584; Shollenberger’s Appeal, 21 Pa. 337; Brightly, Digest, 3175.</p> <p>It is submitted that the defendants cannot annul this contract and lawfully disregard its obligations without the consent and agreement of the plaintiffs. It is a universal rule of law and equity that a contract can be rescinded only by the acts of both parties. New England Iron Co. v. Gilbert Elev. B. Co. 91 N. Y. 155; Patterson v. Silliman, 28 Pa. 304.</p> <p>No warranty of validity of the letters patent is implied in any license given thereunder, and unattended proof of invalidity is therefore no defense to any suit for promised royalties. Walker, Patents, 221, § 307; Birdsall v. Perego, 5 Blatchf. 251, Fed. Cas. No. 1,435; Sargent v. Darned, '2 Curt. C. C. 340, Fed. Cas. No. 12,364; Marsh v. Dodge, 4 Hun, 278; Bartlett v. Holbrook, 1 Cray, 118; Marston v. Swett, 66 N. Y. 207, 23 Am. Rep. 43; Kinsman v. Parkhurst, 18 How. 289, 15 L. ed. 385; Kerr, Inj. 425; Curtis, Patents, 246, § 217, 247, § 218; 2 Wharton, Ev. 1149.</p>

Appeal and certiorari to review a judgment of the Common Pleas of McKean County in equity. This was an appeal by Samuel B. Dick and the Gibbs & Sterrett Manufacturing Company from the same decree reported in the next preceding case. The facts are stated in the report of that case.

The declaration alleged, inter alia, that “the said defendant . . . did speak and utter the following false, scandalous, and defamatory words, to wit: “ ‘Annie Miller had got crab lice on her, and to destroy them she used turpentine and it ran into her private parts and made her scream at a great rate and waken up the whole family.

<p>In the ease of breach of contract for the purchase of stock in a limited partnership, occasioned by the purchaser’s refusal to accept the stock, the seller is not compelled, where the stock has no known market value, to sell it on the market for the best price obtainable and measure his damages by the difference between the price thus obtained and the contract price; but he may recover from the purchaser the price agreed to be paid for the stock, with interest from the time of the breach.</p> <p>A contract for the sale of stock in a limited partnership is not void as being against public policy or good morals, because it contains a stipulation that the seller shall hold the stock until after a partnership election and vote on it as the purchaser shall desire.</p> <p>Not®. — Where there is a breach of a contract of sale by vendee the damages are measured by the difference between the contract and market price at the time and place of delivery (Corser v. Hale, 149 Pa. 274, 24 Atl. 285; Guillon v. Earnshaw, 169 Pa. 463, 32 Atl. 545; Newport & S. Valley R. Co. v. Seager, 19 Pa. Co. Ct. 465) ; and not the contract price (Rhey v. Ebensburg & S. PI. Road Co. 27 Pa. 261) ; unless there be no market value, as in Mobley v. Mokgan.</p> <p>See also note to Southwest Coal & Coke Co. v. Warden, 1 Sad. Rep. 102.</p>

The pauper Adam Drushel originally owned land and resided in Adams township, from which place he moved in 1866 to Forward township, where he resided for about fourteen years. In the spring of 1885 he was taken sick in Adams township and became a charge upon such township; whereupon, the overseers of the poor of Adams township sued out an order of removal and removed the pauper to Forward township.

<p>Error to the Common Pleas of Butler County to review a .judgment of nonsuit in an action of assumpsit by one tenant in common against another.</p> <p>Thompson bought one fourth interest in a lease of oil lands -on which there was a well in operation. Newton owned one fourth interest in the same lease, and had employed a man to ■operate the well. The oil produced was run into the pipe line, :and each one’s share was credited to him on the books of the Pipe Line Company, each one paying his share of the expenses. After Thompson’s purchase, the owners of the half interest agreed that Thompson should take charge, and the man employed by Newton was accordingly discharged. Newton did not ■consent to this arrangement, and refused to pay any part of the -expense.</p> <p>On the trial before Bazen, P. J., the plaintiff claimed to recover for one fourth of the following items: pumping well for nine months; extra work hired for drawing rods, etc.; cash paid for hardware; cash paid for sucker rod line; cash paid for tallow.</p> <p>The plaintiff proposed to prove by witnesses who have been in the oil country for years, that it is a custom ever since the oil business has been in existence, where all parties cannot agree, that the parties owning the majority interest in oil wells, after they have been drilled, have charge of, control, and run the well as long as they do so economically, and as well as it is possible for wells to be run. Refused.</p> <p>The assignment of error specified this refusal of evidence, the entry of a nonsuit and refusal to take it off.</p> <p>As between tenants in common, of a mill or house that falls into decay, the one willing to repair, the other not, he that is willing shall have contribution from the one who is unwilling. Dech’s Appeal, 57 Pa. 472.</p> <p>A tenant in common is liable to his cotenant for repairs that are absolutely necessary to houses and mills already erected and in being which fall into decay. Peaty v. Bordwell, 91 Pa. 438. See also Huston v. Springer, 2 Rawle, 99; and Story, Eq. 10th ed. §§ 1234, 1236.</p> <p>Cited Beaty v. Bordwell, 91 Pa. 438; Crest v. Jack, 3. Watts, 238; 27 Am. Dec. 353; 38 Am. Dec. 397.</p>

April 16, 1854, John Carmichael and wife by deed conveyed to Aaron Carmichael, trustee, the land in question for the use of Phoebe Thompson, daughter of grantors, and Elijah Thompson, her husband. Said Phoebe and Elijah Thompson occupied the premises until January 8, 1858, when in consideration of $300 they made and executed a deed to John Carmichael the original grantor, who took possession and remained in possession until his death in January, 1866.

<p>An offer, by tbe defense in a criminal ease, to exhibit to the jury, by way of cross-examination, a memorandum used by a witness for the prosecution to refresh his recollection as to the names of the defendants was properly rejected, where the commonwealth had not offered the memorandum in evidence.</p> <p>Under an indictment charging defendants with conspiracy against the employees of certain coal operators, to compel them to quit working by force, threats, and menaces of harm, the exhibition by the counsel for the prosecution, as part of his argument, to the jury of a caricature from “Puck” entitled “Suckers of the Workingmen’s Sustenance,” under permission of the court, will not be ground for reversing a judgment of conviction. The use of such matter in argument is within the discretion of the court, unless it appears that thereby serious wrong has been done.</p> <p>Cited in O’Neil v. Behanna, 182 Pa. 236, 38 L. R- A. 384, 61 Am. St. Rep. 702. 37 Atl. 843.</p> <p>There is no error in affirming the following point of law presented by the commonwealth: “If the jury believe from the evidence in this ease that large bodies of men collected in November last about the coal works of J. S. Neel, and other coal operators, named in the indictment, by previous arrangement or concerted action, with the intention of intimidating the miners working, by the presence of great numbers of persons opposed to the course pursued by said working miners, such combination would be unlawful and all persons engaged therein would be guilty of conspiracy, whether actually present at the commission of any act of violence or not.”</p>

the Quarter Sessions of Butler Oounty to review a judgment on conviction on an indictment for obstructing a public highway. . The defendants below were indicted for obstructing a road in Worth township, by building a fence across said road and piling stones on it where it crossed the land of the defendant, John A. Glenn.

<p>Error to Common Pleas No. 1 of Philadelphia County to review a judgment on a verdict for plaintiff in an action of ejectment.</p> <p>• On the trial of the case before Biddle, J., evidence was offered by the plaintiff to establish the following facts:</p> <p>In July, 1878, a creditor issued execution against Mawhinney and levied upon the land in dispute. Before the sheriff’s sale, Mawhinney applied, to Amos Shallcross, a brother of the defendant, for advice, and it was agreed that the latter would attend to the matter for the former.</p> <p>On the day of sale, Shallcross went to the office of Hanneshotz, attorney for the plaintiff in the execution under which the property was to be sold, for the purpose of compromising the matter if possible; he returned and told Mawhinney that Hanneshotz would take $275 for the judgment, and said: “I will settle if you say so,” and then Mawhinney said: “Do it.”</p> <p>Shallcross went back to Hanneshotz’s office, returned in a few minutes and said: “I have settled it for $275.” Shallcross then said: “I think it would be better to let the sale go on, and buy the property in for you.” Mawhinney said: “You ought to know best, for I know but little about it; do it if you think ■best.” They then went into the sale, where the property ivas knocked down to Shallcross for a nominal sum, no one else bidding. He signed the sheriff’s sale book “Amos Shallcross, agent for Lewis Shallcross” (his father). On June 9, 1879, some ten months after the sale, a sheriff’s deed was made to Lewis W. Shallcross, the defendant.</p> <p>The defendant denied the allegations of the plaintiff, and testified that he took the title in himself, to protect himself as a creditor of Mawhinney. He held several liens against the property, paid the purchase money himself and made improvements. On the trial, the plaintiff’s counsel made the following offer, which was admitted under objection:</p> <p>“I offer to prove that Mr. Shallcross acted as agent or attorney of Mr. Mawhinney, induced him to let the property be sold under the agreement that he would have them knocked down to Mr. Mawhinney, Mr. Shallcross to buy them in for him in his (Mawhinney’s) name. I was going to follow that up by claiming that Mr. Lewis W. Shallcross, the defendant, took the title in his own name through the fraud of his brother, Mr. Amos 0. Shallcross. I will agree to the two, and will prove it. Pretty soon the witnesses will take the stand, and will show their knowledge of that fact, that it was Mr. Mawhinney’s property.”</p> <p>The jury rendered the following verdict: “Verdict for plaintiff -upon his tendering to defendant the sum of $2,293.02.” Judgment was entered by the plaintiff on the verdict, ex parte, in the prothonotary’s office, without the tender. The refusal of the court to strike this off is reported in 2 Pa. Co. Ct 164.</p> <p>The assignments of error specified, inter alia, the admission of the evidence and the entry of judgment on the verdict.</p> <p>The offer amounts to this, that Shallcross promised to buy in the property for Mawhinney, and he broke his promise by buying it in for himself. “A refusal to fulfil the agreement is no more than the violation of a parol agreement, and equity will not decree the purchaser to be a trustee.” Phillips v. Hull, 101 Pa. 570; Fricke v. Magee, 10 W. N. C. 50.</p> <p>When the purchaser at a sheriff’s sale promises to hold for the debtor and afterwards refuses to comply with his engagement, the fraud, if any, is not at the sale. Kellum v. Smith, 33 Pa. 158.</p> <p>If the agent pays his own money, an express trust (in the absence of fraud) will not be permitted to be shown. 2 Peed, Stat. Fr. par. 870, and cases cited.</p> <p>In Gilbert v. Hoffman, 2 Watts, 66, 26 Am. Dec. 103, plaintiff alleged that previous to the sale Hoffman had fraudulently misrepresented the quality and condition of the land, so as to enable himself to purchase at a low price, which he did. This court held that where a purchaser purchases by fraud, recovery can be had without a tender of the money paid to the sheriff.</p> <p>So in McKennan v. Pry, 6 Watts, 137, where it was shown that defendant was enabled to purchase the property at sheriff’s sale by telling people he wished they would not bid against him, as he was buying the land for the widow and children, this court held that he was affected with a trust in their favor.</p> <p>In McCaskey v. Graff, 23 Pa. 321, 62 Am. Dec. 336, plaintiff maintained an action of ejectment against defendant, on the ground that he was enabled to purchase the property at sheriff’s sale by means of fraudulent misrepresentation that he was going to buy it for the family.</p> <p>In Poynton v. Housler, 73 Pa. 453, where a decedent’s estate was to be sold on execution, tbe widow having an interest to tbe extent of bis exemption, ber friends having arranged to purchase tbe land for ber, tbe execution creditor agreed with ber that if they would not bid against him be would convey a portion to ber. They refrained from bidding and be bought tbe property at an undervalue. Held, be was a trustee ex maleficio for tbe widow. Wolford v. Herrington, 74 Pa. 311, 15 Am. Rep. 548, is similar to tbe case in band.</p> <p>In Seichrist’s Appeal, 66 Pa. 237, it was said that although no one can be compelled to part with bis own title, by force of a mere verbal bargain, yet when be procures title from another, which be could not otherwise have obtained except by a confidence reposed in him, if be abuses tbe confidence reposed in him, be is converted into a trustee ex maleficio.</p> <p>Where an agent took title in bis own name, for bis own use, tbe act at once turned him into a trustee ex maleficio. Squires’s Appeal, 70 Pa. 268.</p> <p>Tbe principle has also been affirmed in numerous other cases. Among others may be cited: Poulk v. M’Farlane, 1 Watts & S. 297, 37 Am. Dec. 467; Smull v. Jones, 1 Watts & S. 128; Urket v. Coryell, 5 Watts & S. 60; Jackson v. Summerville, 13 Pa. 359; Plumer v. Reed, 38 Pa. 48; Christy v. Sill, 95 Pa. 387.</p> <p>In Phillips v. Hull, 101 Pa. 571, and Kellum v. Smith, 33 Pa. 158, tbe fraud on tbe part of tbe person sought to be charged with tbe trust was not tbe taking of tbe title in bis own name, but in not conveying afterwards.</p> <p>This was an equitable proceeding; tbe verdict of tbe jury was in tbe nature of a decree of a court of equity, which this court, sitting as a chancellor, has a right to mould in such a manner as to do substantial justice between tbe parties. Gordonier v. Billings, 77 Pa. 503; Biddle v. Moore, 3 Pa. St 175; Pendleton v. Richey, 32 Pa. 58; Webster v. Webster, 53 Pa. 161.</p> <p>Kensinger v. Smith, 94 Pa. 386, is a case precisely similar to this. An action in equitable ejectment was brought against defendant and verdict rendered for tbe plaintiff for the land in dispute to be released on payment of $1,573.70. This court amended tbe judgment fixing a time for tbe payment of tbe sum found to be due.</p>

<p>Error to the Common Picas of Venango County to review a judgment in favor of plaintiff in an action of ejectment.</p> <p>On May' 8, 1861, Henry N. Kellogg became owner in fee of a lot in the borough of Franklin. He died intestate in 1863, leaving a widow, Jane Kellogg, and two children, Martin and William, surviving him. The estate was small, the lot in question being the only real estate owned at the time of his death by deceased. The family remained together on the property for some time, but eventually all left, the boys going first, and the widow always claiming to have a right of possession therein.</p> <p>Letters of administration upon the estate were issued to the widow. She filed an inventory and made application to have this house and lot, or so much thereof as would be of the value of $300, set apart to her under the statute as exempt. The appraisers, being of the opinion that the lot could not be divided without injury to the whole, did not set apart any part of it to her, but reported that the premises be sold, and that there be set apart to her out of the proceeds the sum of $300.</p> <p>After the boys became of age C. W. Gilfillan purchased whatever title they had to the property, and failing to get possession he brought this action of ejectment against the widow, Jane Kellogg, alleging that she claimed to own the property by gift from her husband, and that she denied the right of the children and their vendee, and held the possession of the land adversely to them. Defendant, as one branch of her abstract of title, set up, as the sixth paragraph therein, uninterrupted and adverse possession in herself of the locus m quo under a claim of right for more than twenty ynars.</p> <p>At the trial, after the plaintiff’s evidence was all in, defendant moved for leave to amend her abstract of title by stating that “defendant, Jane Kellogg, is the widow of H. N. Kellogg, deceased; that said H. N. Kellogg died seised of the premises in question, and that she has been ever since her husband’s death, and now is, in possession of said premises by virtue of her right as widow. That she is the administratrix of her deceased husband and that said estate is unsettled,” which motion was overruled [1] and defendant excepted.</p> <p>At the close of her evidence defendant moved for leave to amend her abstract of title by striking out the sixth paragraph, which motion was overruled [2] and defendant excepted.</p> <p>Plaintiffs counsel offered in evidence defendant’s brief of title, to show claim of title. Defendant objected, on. the ground that “the brief of title as offered by the plaintiff is not the statement of facts on which the defendant now relies; that the defendant disclaims the right to recover or defend on the ground of the matter set forth in the sixth paragraph of said brief; and states that that is not her claim but that she depends upon the evidence adduced.”</p> <p>The court overruled the objection and sustained the offer [3] and defendant excepted.</p> <p>The court instructed the jury, inter alia,, as follows: [“We instruct you, if you find that the defendant, Mrs. Jane Kellogg, has been holding adversely to these children or their vendee, that is, claiming to hold it as her own, independent of them, and keeping them out of possession, this action would lie;”] [4] to which defendant excepted.</p> <p>Defendant requested the court to instruct the jury, among other things:</p> <p>1. “That under the evidence the plaintiff is not entitled to recover; which point was answered as follows: [“We cannot affirm this point; we submit the question to the jury;”] [5] and defendant excepted.</p> <p>3. “That the heirs of H. N. Kellogg could not have maintained this action against Mrs. Jane Kellogg, widow of their deceased father, and that the plaintiff could not and did not, by the conveyance made by the heirs, acquire any greater or different right than they had, and cannot maintain this action against the defendant, Mrs. Kellogg.”</p> <p>Which point was answered as follows: [“So far as this point is concerned, we think the heirs could maintain this action of ejectment, and therefore the vendee could maintain it;”] [6] and defendant excepted.</p> <p>4. “That the only right acquired by the plaintiff, under the conveyance from Martin and William Kellogg, is the right to take and receive such portion of the premises in question, or the proceeds thereof, after a settlement of said estate by the orphans’ court, as the said children would be entitled to receive.”</p> <p>Which point was answered as follows: [“This point as made is answered in the negative, with reference to the facts in the case;”] [7] and defendant excepted.</p> <p>5. [“That it appearing that the defendant, Mrs. Jane Kellogg, is the widow and administratrix óf H. N. Kellogg, deceased, she is not liable in this action to the plaintiff for the land or for mesne profits; that the rights of the heirs and of the plaintiff as their grantee are exclusively within the jurisdiction of the orphans’ court.”]</p> <p>Which point was answered as follows: [“This point is answered in the negative;”] [8] and defendant excepted.</p> <p>Defendant objected to defendant’s abstract of title going out with the jury; but the court overruled the objection and sent it out [9] and defendant excepted.</p> <p>Verdict was returned for plaintiff; and judgment having been entered thereon defendant sued out this writ, and presented as assignments of error: 1 and 2, The denying of defendant’s motions to amend abstract of title; 3, the portion of the charge above set forth; 4 to 8, answers to points; 9, permitting defendant’s abstract of title to be sent out with the jury.</p> <p>The plaintiff was not entitled to recover for the reasons: 1. He must, if he recover at all, do so upon the strength of his own title. 2. He acquired by the conveyance to him from Martin B. and William Kellogg their rights and title.</p> <p>The rights of the heir are subject: 1. To the claims of creditors and the costs of administration. 2. The rights of the widow under the statute.</p> <p>It cannot be known what or whether the heir takes anything in his deceased ancestor’s estate until after the settlement of the estate and the assignment of dower. Scott, Intestate Law, 182; Homer v. Hasbrouck, 41 Pa. 169; Dresher v. Allentown Water Co. 52 Pa. 225, 91 Am. Dec. 150.</p> <p>3. Dower has not been assigned, partition has not been made. The widow remained in possession after the death of her husband and received the rent. The heir could not maintain ejectment in such case. Seider v. Seider, 5 Whart. 208; Gourley v. Kinley, 66 Pa. 210.</p> <p>—The plaintiff could only recover and the defendant defend upon the state of the title when the suit was brought. The abstract of the defendant showed an adverse claim in every part, not only to the title of the heirs, but to her own right as widow of the decedent.</p> <p>“Ordinarily, an abstract of title filed by either party under a rule of court would be evidence; for its principal design is to relieve the case of the proof of such papers and evidences of title as may therein be admitted. Not only are the parties thus relieved of the preparation of unnecessary testimony, but the public business is expedited.” Ege v. Medlar, 82 Pa. 87.</p> <p>When title to land is denied, we know of no other action than that of ejectment. In North Pennsylvania Coal Co. v. Snow-den, 42 Pa. 488, 82 Am. Dec. 530, the question was exhaustively considered, and it was decided that equity would not lie for an account between tenants in common where the title of the plaintiff was denied, until the title had been settled by an action of ejectment. The principles there laid down comprehend every ease where title to land is involved and have been followed without deviation to this day by this court.</p> <p>“An adverse holding by one tenant in common, for any length of time, however short, previous to the institutiou of an action of partition, will bar a recovery in such form of action, for ejectment, and not partition, is the proper remedy against a person holding adversely.” MeMasters v. Carothers, 1 Pa. St. 324; Law v. Patterson, 1 Watts & S. 184.</p>

The facts appear from the following portions of the charge of , the court below, Inghram, J.: “In this case the plaintiff, James Huffman, is seeking to recover from Franklin P. Iams and Matthew Garner, executors of the last will and testament of John Huffman, deceased, who was the father of the plaintiff, the amount of three notes. . . .

The plaintiff filed with bis narr. in assumpsit an affidavit of claim in which he alleged that on or about June 29,1883, the defendant purchased from the plaintiff certain goods, for which he agreed to pay $350, to wit: $175 in six months after the goods were delivered, and $175 in one year after the same date, with interest, and to give his notes to secure the payment thereof; and that the defendant had neglected and refused to pay the second instalment.

<p>Error to the Common Pleas of Greene County brought by the plaintiff below to review a judgment in his favor for an amount less than that claimed by him in an action of assumpsit.</p> <p>Hriah Inghram, in the year 1882, and prior thereto, was the owner of a building in Waynesburg, Pa., wbicb be let for stores, shops, etc. He leased tbe whole building, by written agreement, to Walter 0. Coen and Silas Coen for the -year beginning April 1, 1882, and ending April 1, 1883, for the annual rent of $400. These lessees occupied a portion of the building for a grocery and sublet the balance to other business men. About the 1st of January, 1883, Silas Coen sold his interest in the grocery business and in this lease to his partner', Walter O. Coen, the plaintiff in error, who continued to occupy it in his grocery business — tbe subtenants remaining as before.</p> <p>Some time in the latter part of 1882, Uriah Inghram sold the real estate to W. S. and J. II. Adamson.</p> <p>February 6, 1883, J. H. Adamson, the defendant, purchased the grocery business of Walter C. Coen, the plaintiff. The article of agreement was written by James Hunt, brother-in-law of Walter C. Coen, the plaintiff, and was executed in duplicate, each party receiving one of the duplicate copies, said article being as' follows:</p> <p>Article of agreement, made and entered into this 6th day of February, 1883, between W. 0. Coen and J. IT. Adamson, both of Waynesburg, Greene county, Pa., Witnesseth: That the said Coen sells to said Adamson his entire stock of goods and fixtures except rotten apples and potatoes, wagon and harness, fish, empty packages, and $300 worth of furniture or fixtures as said Adamson will name. For which the said Adamson agrees to bind himself to pay the said Coen cost and carriage for said stock of goods and fixtures, except rotten apples and potatoes, wagon and harness, fish, empty packages, and furniture or fixtures to the amount of $300. All goods belonging to bake house to be invoiced at $20. Said Adamson further agrees to furnish wareroom for the storage of the above-named $300 worth of furniture or fixtures free of charge until said Coen calls for them, at said Coen’s risk after leaving storeroom. The invoice ■of the above-named stock of goods to commence on the 7,th day of February, 1883, and to continue until done. Said Adamson agrees to pay said Coen $500 when the invoice is completed, and $200 within five days thereafter, if demanded by said Coen, and secure the balance of purchase money by approved security. All payable before the 1st day of April, 1883. Said Adamson further agrees to pay all rents on building where goods are found for which said Coen is liable, and to receive all rents coming to said Coen on the above-named building, from the day of the completion of the invoice until April 1, 1883. The keys of the storeroom to be left with some disinterested person from the commencement of the invoice until the completion of the above agreement.</p> <p>In witness whereof the parties to this agreement have set their hands this 6th day of February, 1883.</p> <p>W. O. Coen,</p> <p>J. H. Adamson.</p> <p>The invoice was completed on or about February 10, 1883,, and Adamson immediately went into possession of the grocery and premises, and paid Coen the whole of the purchase money,, substantially according to their agreement.</p> <p>Adamson received the rents from the subtenants from the date of the completion of the invoice up until April 1, 1883, and has always been willing and ready to pay the amount of rent for which Coen was liable to Inghram, for the same time. Coen refused to accept this and brought this suit to recover $400 (the-full amount of rent due and paid by him to Inghram for the year-beginning April 1, 1882, and ending April 1, 1883), alleging that the whole of said rent was unpaid at the execution of theCoen-Adamson agreement, and that by the terms of their written agreement Adamson had bound himself to pay the same.</p> <p>On the trial plaintiff offered in evidence an article of agreement between Uriah Inghram and Walter C. Coen and Silas Coen, dated January 25, 1882, for the rental of the building-for the year ending April 1, 1883, in which the store sold by the plaintiff to the defendant was kept, for the purpose of showing the amount of rent the plaintiff was to pay to the said Inghram for the said building, this to be followed by evidence that the whole of the rent was unpaid at the time the article of agreement was entered into for the sale of the store by the plaintiff' to the defendant on the 6th day of February, 1883.</p> <p>Defendant objected to the whole of the offer, except in so far as it was made to show the amount of rent payable from Coen Bros, to Uriah Inghram, and the fact that the same was paid by Coen Bros.</p> <p>By the Court: The objection, so far as it goes to anything beyond the amount of the rent due to -Mr. Inghram and by whom it was paid, is overruled; but the objection is sustained as to-the balance of the offer, and an exception sealed for the plaintiff. [1]</p> <p>The plaintiff offered to prove “that he informed the defendant when they were negotiating for the sale of the goods that the-whole of the $400 rent to Mr. Inghram was unpaid, and that the plaintiff proposed to sell to the defendant his entire stock of goods, including the delivery wagon, fixtures and furniture, and a lot of decayed apples and a large quantity of fish, at cost and carriage, and a bonus of $150, and give possession of the-building at once; and the defendant to receive the rent from* the occupants of the building from that date to the 1st of April, 1883, and the defendant to pay the rent to Mr. Inghram from that date to April 1, 1883; and the defendant rejected said proposition, and proposed to take' the goods as stated in the agreement of February 6, 1883, and plaintiff to keep the several articles as specified in said agreement, and the defendant to receive the rent from the occupants of the building to April 1, 1883, and the defendant to pay all the rent on the building to Mr. Inghram for -which the plaintiff was liable, namely, $400. This for the purpose of showing that the defendant, when he' signed the article of agreement of February 6, 1883, knew the amount of rent he was agreeing to pay to the said Uriah Inghram; and for the further purpose of showing the consideration for which said defendant agreed to pay all the rents on said building where the goods were for which said Coen was liable for the $400. This in connection with the agreement already in between the plaintiff and defendant of February 6, 1883, given in evidence, wherein the defendant agrees to pay in the following words: 'Said Adamson further agrees to pay all rents on the building where the goods are found for which said Coen is liable.’ This for the purpose of showing the extent of the plaintiff’s claim under this agreement.”</p> <p>Defendant objected, "first, that the evidence is incompetent and irrelevant; second, the contract being in writing, the writing is the best evidence, and the plaintiff cannot show anything to contradict or vary such written agreement unless he has first shown that there was fraud, accident, or mistake in the execution of it; third, the court should exclude all parol testimony going to contradict, alter, or vary the terms of the contract from those embraced in the writing, until the plaintiff has produced clear, explicit, and unquestionable evidence of some mistake, fraud, or accident in the execution of said contract; fourth, in attempting to show fraud, accident, or mistake in the execution of the contract, the plaintiff can only show it by proof of what took place at the execution of such contract.”</p> <p>By the Court: The objections are sustained and an exception sealed for the plaintiff. [2]</p> <p>The plaintiff, in connection with the foregoing offers, offered “to prove that Mr. Adamson knew when they made the contract and executed it on the 6th day of February, 1883, that Coen was liable to Inghram for $400 rent on the building, and in consideration Mr. Coen was to keep the fixtures and furniture and other articles named in the agreement — that he agreed to pay the $400, and this for the purpose of showing that the rent that Adamson agreed to pay in the article of agreement on the building was the sum of $400.”</p> <p>The defendant renewed his objections.</p> <p>By the court: Objections sustained and exception sealed for</p> <p>the plaintiff. [3]</p> <p>The plaintiff submitted the following point:</p> <p>“The court is respectfully requested to charge the jury on behalf of the plaintiff as follows: That under all the evidence in</p> <p>this case the plaintiff is entitled to recover $400 with interest from September 12, 1883.”</p> <p>Ans. Refused. [4]</p> <p>The court, Inghram, J., charged the jury, inter alia, as follows :</p> <p>“The defendant, J. H. Adamson, denies the right of the plaintiff to recover the amount he claims under the article of agreement, but does not deny the right of the plaintiff to recover that portion of the rent due from the time of the completion of the invoice to the 1st of April. In other words, he does not deny his liability for the rent due from the time he took possession of the store and occupied the room down to the end of Mr. Coen’s term, which was the 1st of April, 1883. From the time of the completion of the invoice down to the end of Mr. Coen’s term he does not deny his liability, but he does deny the right of the plaintiff to recover any greater amount than that proportion of the amount due Mr. Inghram; and we take the view that the defendant’s claim is the correct view of the agreement entered into on the 6th day of February, 1883, between himself and Coen; and you have heard the agreements read, and we have been requested by both the defendant and the plaintiff to give you certain instructions concerning those agreements, and they will be binding upon you.</p> <p>“The par-ties do not disagree about the amounts, and we have been requested to instruct you on the part of the plaintiff: ‘That under all the evidence in this case the plaintiff is entitled to recover $400, with its interest from the 12th day of September, 1883.’ As we have already said to you, that point is not correct, and will be refused; . . . but we instruct you that the plaintiff is entitled to recover the sum of $66.82, that being the amount agreed upon between the parties as due from Coen to Uriah Inghram from the completion of the inventory down to the 1st of April, 1883. There being no dispute about the amount, there will be no question for the jury; and we instruct you that the plaintiff is entitled to a verdict at your hands for that amount; and with your consent the prothonotary will take your verdict for $66.82.” [5]</p> <p>The jury thereupon returned a verdict in favor of plaintiff for $66.82, and judgment having been entered thereon plaintiff took this writ, assigning for errors: 1-3, The action of the court-in sustaining objections to offers of evidence; 4, the refusal of his point; and 5, the portions of the charge above set forth.</p> <p>The writing of February 6, 1883, refers to the liability of the plaintiff for all rents on the building where goods were found, and which plaintiff sold and delivered to defendant; hence, the liability of plaintiff for rent on the building where the goods were at the date of the sale, to whom he was liable, and the amount for which he was liable, were all a part- of the res gestee. 2 Wharton, Ev. § 1015 ; Wells, Questions of Law & Fact, § 49; 1 Greenl. Ev. §§ 285, 286; Miller v. Fichthom, 31 Pa. 252; Young v. Com. 28 Pa 504.</p> <p>As far back as 1750 the King’s Bench held, in Jones v. Newman, 1 W. Bl. 60, that- parol objections may be encountered by parol evidence; and this court, in 1835, held, in Ellmaker v. Ellmaker, 4 Watts, 90, that a marriage settlement would not exclude the wife from a share in the personal estate under the statute of distribution. The parol evidence offered in this case is not inconsistent, with the terms of the writing of February 6, 1883. 2 Wharton, Contr. §§ 660, 661, 910.</p> <p>This contention is between the original parties; hence, the writing may be helped by averments and parol proof to carry into effect what the parties meant, no matter what are the words they have used. 1 Wharton, Contr. § 202.</p> <p>The parol evidence offered in this case tended to explain and define the subject of the writing of February 6, 1883, i. e., “all rents on building where goods are found for which said Coen is liable,” and was therefore admissible. Centenary M. E. Church v. Clime, 116 Pa. 146, 9 Atl. 163.</p> <p>Intention is a question of fact, and may be averred and helped by parol evidence. Moss v. Riddle, 5 Cranch, 351, 3 L. ed. 123 ; Clift v. White, 12 N. Y. 538.</p> <p>It was the duty of the court to submit to the jury the writing of February 6, 1883, and of January 25, 1882, and the admissions of the defendant, to find out how much the plaintiff was entitled to recover. Crossman v. Hilltown Turnp. Co. 3 Grant Oas. 225; M’Kean v. Wagenblast, 2 Grant Gas. 463; Sidwell v. Evans, 1 Penr. & W. 388, 21 Am. Dec. 387; Reynolds v. Richards, 14 Pa. 206; Shamokin Valley R. Co. v. Livermore, 47 Pa. 465, 86 Am. Dec. 552; Centenary M. E. Church v. Clime, 116 Pa. 146, 9 Atl. 163; Gould v. Lee, 55 Pa. 99.</p> <p>The sole question raised by the record in this case is whether the plaintiff is entitled to recover from the defendant, under the article of February 6, 1883, the rent of the Inghram building for the full year beginning April 1, 1882, and ending April 1, 1883, or whether he is only entitled to recover the rent from'the date of the completion of the invoice up to April 1, 1883.</p> <p>The court did not err in rejecting the evidence of the plaintiff, offered “for the purpose of showing the extent of his claim under the agreement.” There was no ambiguity in the paper; and it has always been held that in such cases it is the duty of the court alone to put a construction upon written instruments. Bryant v. Hagerty, 87 Pa. 261; Denison v. Wertz, 7 Serg. & R. 376; Collins v. Rush, 7 Serg. & R. 151; Reaney v. Culbertson, 21 Pa. 512; Gass’s Appeal, 73 Pa. 46, 13 Am. Rep. 726; Heath v. Page, 48 Pa. 143.</p> <p>It has been held that even where there is ambiguity on the face of the printed or written document it is for the judge to explain. Beatty v. Lycoming County Ins. Co. 52 Pa. 457.</p> <p>But even where there may be extrinsic facts to be ascertained they must be such facts as are doubtful or disputed. Edelman v. Yeakel, 27 Pa. 30.</p> <p>Parol evidence is not admissible to alter or contradict what is written, upon the very obvious principle that the writing is the best evidence of the intention of the paities. Gould v. Lee, 55 Pa. 108.</p> <p>The court having held that the language of the agreement meant that Adamson was only to pay rent from the completion of the invoice up until April 1, 1883, to have admitted parol evidence to show that he was to pay rent for the whole year would certainly be an attempt to vary and alter the terms of the writing, or to show that it meant something else than was therein written, and this could not be done. Centenary M. E. Church v. Clime, 116 Pa. 14-6, 9 Atl. 163.</p> <p>Not only this, but the plaintiff in his answer does not allege that there was either fraud, accident, or mistake in the execution of the paper.</p> <p>In the case of Bowman v. T'agg, 5 Sad. Rep. 74, it was held that “where parties without any fraud or mistake have deliberately put their engagements in writing, the law declares the writing to be, not only the best, but the only evidence of their agreement.” See also Albert v. Ziegler, 29 Pa. 50; Martin v. Berens, 67 Pa. 461; Thorne v. Warfflein, 100 Pa. 526.</p> <p>But even if the plaintiff had alleged that there was fraud or mistake in the execution of the contract, the offer does not propose to establish what occurred at the execution of the agreement, but what occurred previous thereto: and this he cannot do. Stine v. Sherk, 1 Watts & S. 195; Pennsylvania R. v. Shay, 82 Pa. 203; Caley v. Hoopes, 86 Pa. 493.</p>

On June 1, 1886, tbe appellant, and Robert H. McGuire, tbe appellee, entered into an article of agreement, duly signed by tbe parties, in wbicb tbe appellant covenanted and agreed to convey to Robert H. McGuire, in fee simple, a certain tract of land in Derry township, Westmoreland county, Pa., containing 97 acres, and Robert H. McGuire on bis part covenanted and agreed to pay her tbe sum of $3,000 therefor on or before June 10, 1886.

The facts of the case as they appeared at the trial, and the course of procedure adopted, together with the questions presented, appear from the following opinion of the court below,. Taylojb, P. J., on the reserved questions of law: “This is an action of assumpsit brought by the plaintiff,, claiming to recover the value of certain services rendered to the defendant. “E. W. Hays, Esq., was the regularly constituted solicitor for the city.

The facts, as they appeared at the trial, and the questions presented, are set forth in the following charge to the jury by the court below, Wilson, P. J.: “On the 4th day of August, 1885, K. J. Carter, the plaintiff in this suit, brought his action of covenant against the Pennsylvania Eire Insurance Company, of Pittsburgh, to recover the sum of $1,000.

This was an action of ejectment by Joseph Jennings, grantee of his father and mother, Silas and Maria, against Gibson Long-don and Stephen Breese. In 1862 Silas Jennings purchased land from one Day for $1,800 and sold the same in 1868 for $3,200, his wife joining in the deed; about the same time he purchased, for $4,000, another piece of land, containing 96 acres, from one Clutter, who conveyed the same to said Silas Jennings, by deed dated September SO, 1868.

On January 6, 1883, the last will and testament of John McPherson was admitted to probate and letters testamentary issued. On February 5, 1884, a caveat Avas filed, and also a petition by certain heirs of the decedent, praying the register to set aside the probate of tíre will or grant a precept to the common pleas (for an issue), and giving as reasons therefor want of testamentary capacity in the testator, and undue influence.

On June 22, 1875, Patrick Kelly, being the owner of a lot in the borough of Butler, leased the same to one J. E. Hackett for the term of five years, from April 1, 1875. The lease was under seal and signed by Kelly and Hackett. By its terms, Hackett was to remove the houses then on the premises leased, and, where they stood, to erect a house, according to plans then agreed upon between them, the house to be completed by April 1, 1876.

<p>A poor district is liable to a physician for his medical and surgical services rendered in a case of emergency, to a poor person who is without means, when the bill is certified and approved by two justices of the peace-after the services were rendered.</p> <p>Note. — For liability of poor district for emergency relief given by physician to paupers, see note to Westmoreland County v. Donnelly, 3 Sad.. Rep. 483.</p>

The declaration as first filed alleged that the defendant was a corporation incorporated for the purpose of supplying the inhabitants of the borough of Kittanning, for pay, fresh water,, and that it was its duty to maintain and furnish a sufficient supply; that the plaintiff was a resident of said borough and was the operator and lessee of a brew house therein and the owner of personal property on the premises, and paid water rates demanded by defendant; that on October…

Appeal by complainant from a decree of the Common Pleas of Cambria County dismissing a bill in equity seeking to compel defendant to surrender the possession of certain real estate, which it was alleged he had purchased for and on account of the complainant.

The declaration contains two counts, the first on a written contract and the second for nse and occupation.

This was an action of assumpsit begun January 22, 1884, by W. E. Baum and A. M. Baum, his wife, for the use of the wife, against B. Nulton, upon a book account for goods sold and delivered by W. E. Baum to Nulton, amounting October 28, 1882, to $905.63; this account was, on June 1, 1883, assigned to Mrs. Baum; and upon another book account for goods sold and delivered by Mrs. Baum to Nulton, amounting September 6, 1883, to $68.49 — with interest on both amounts from their…

<p>In a suit on a promissory note purporting to be signed by two persons, there being but one seal, where a plea of non est factum was entered by one defendant, the note was admitted in evidence, it appearing, to the court that there was a seal upon the face of the note, and the court instructed the jury that if defendant signed the note in suit, and the obligation was given for a joint indebtedness, their finding must be, from an inspection of the note, that it is a joint instrument, and that the defendant was, with his codefendant, equally liable for the payment thereof; that “if he did so write his name to this note and you so find from the evidence, your vei'diot should be for the plaintiff, although he may not have made a seal to the note or adopted as his the seal that is above his name on the note,” the defendant not having pleaded the statute of limitations; and that it was the duty of the court to look at the paper and determine whether the seal that is upon it is such a legal seal as the law requires; but whether the defendant intended to adopt it as his seal was a question, under the circumstances, for the jury, although the determination of that question in the negative would not release the defendant from the liability incurred by his signature,— Held, that there was no error in the charge.</p> <p>While an expert can testify his belief as to whether a paper or its signature is natural or feigned, simulated or forged, indicating the rule by which he is guided, and while it is groper to consider his testimony, yet sucli testimony will not be sufficient to overcome that of positive witnesses testifying from their own knowledge as to the transaction itself. An expert cannot take a genuine signature or an admitted signature, and compare it with the one in suit, and state his conclusions. The jury must make the comparison, and not the expert.</p> <p>Noth. — For the comparison of handwriting, since the act of 1895, see note to Hulett v. Patterson, 6 Sad. Rep. 22. For the adoption of a seal placed upon the instrument by another, see note to Templeton v. Com. 3 Sad. Rep. 550.</p>

Certiorari sur appeal, from a decree of the Common Pleas of Washington County confirming tbe report of an auditor as to tbe distribution of a fund raised by execution upon a judgment upon a promissory note.

In 1839 Isaac Wible became seised of certain land in Armstrong county; and in 1854 his son, John Wible, the defendant, went into possession of a portion thereof, erected a house, and farmed the land, and so continued in possession to the time of the issuing of this writ in 1884, except during eighteen months, in 1882 and 1883, when he rented the premises.

This was ejectment for land, formerly belonging to plaintiff, and which defendants claimed as purchasers at a sheriff’s sale upon a judgment in favor of a stranger to this suit. Held: it was said that the objection must be made within a reasonable time. What is a reasonable time is defined in Crowell v. Meconkey, 5 Pa. 174; Wray v. Miller, 20 Pa. 115; and Mitchell v. Freedley, 10 Pa. 203.

This was assumpsit upon a policy of fire insurance upon a two-story planing mill, steam engine, and stock of sash, doors, and lumber. The defense was forfeiture for suspending operations. For some months after the date of the policy, the steam engine was run for a number of days in each month; but for seven months prior to the fire the engine was not operated, although the other business of the mill and yard was not suspended.

The facts of the ease appear in the following abstract of petition: “On July 25, 1876, Jacob Hill died testate, leaving a widow, Hannah Hill, the petitioner, and eight children, and being seised of considerable real estate. “He devised to his son, Jno. W. Hill, a farm in Allegheny township, Armstrong county, containing 174 acres, and to his son, Winchester Hill, a farm of about 200 acres, being the old homestead.

Isaac J. Deeds was intermarried with Veturia, a daughter of John Clemens, late of Buffalo township, Washington county, Pa., who died intestate, seised of a tract of land in said… Held: even in the orphans’ court, that a plain mistake made by the court in its decrees will be corrected after three years, where no rights have intervened in the meantime. George’s Appeal, 12 Pa. 260, We admit that the error complained of may be held not to appear upon the face of the decree.

On August 30, 1887, James Jones filed a petition under the lateral railroad act of May 5, 1832 (P. L. 501), alleging that he was the owner of certain coal lands in Washington county, lying within three miles of the Monongahela river; that to transport his coal to it a lateral railroad through coal belonging to Wm. Macrum, trustee, was necessary. A plot showing the location of the proposed road was annexed.

<p>Appeal from decree of Orphans’ Court of Washington County dismissing exceptions to an executor’s account.</p> <p>John Ames died April 10, 1884, having appointed as executors, his three sons: Arthamér, Erastus H., and Demás L. Ames. They filed separate accounts. To the account of Arthamer the other heirs filed exceptions, because he had failed to charge himself with $1,200 alleged to have been borrowed from decedent, or money in accountant’s hands belonging to decedent.</p> <p>The account was referred to an auditor, M. C. Acheson, Esq.</p> <p>It appeared in evidence that Arthamer received the money from his father on April 2, 1884, eight days before the latter’s death; after the 4th or otk day of April he was incapable of attending to business. The evidence consisted of declarations and statements of the parties prior and subsequently to this interview and an entry in a book of account, alleged to have been made by Arthamer. Appellants claimed that this book belonged to decedent, while the auditor finds the evidence slight that it belonged to Demás, his son. The book was as follows: “March, 1884, account of money;” then followed entries of several payments made by decedent and the entry, “April 2. Let Arthamer have by note, $1,200.”</p> <p>It was claimed by appellants that accountant, being in need •of money to pay for a farm, called on his father; and several witnesses testified to statements made by Arthamer admitting his obligation to repay his father, and that he had intended to .give him a note therefor; and Demás testified that Arthamer attempted to influence him to destroy the above-mentioned entry.</p> <p>By accountant it was claimed that the father voluntarily gave the money, refused to accept the note, and stated to witnesses that he intended to help Arthamer, having before helped the other children; that the evidence of contrary admissions was not clear, or credible, and the gift was reasonable, considering the value of the estate.</p> <p>The will provided certain life estates and remainders, inter alia, to the children of Arthamer; and the auditor admitted a daughter of accountant to testify in his behalf concerning matters happening before the death of John Ames.</p> <p>The auditor found as follows:</p> <p>“The conclusion of the auditor drawn from the evidence is that John Ames had arranged with his son Arthamer to give him $1,200 to make a payment on his farm; that Arthamer was i» give a note or obligation binding himself to pay the interest •on $1,200 to his father as long as the latter lived, and that Arthamer was not required and did not obligate himself to repay any part of the principal. As already stated, this is the auditor’s inference drawn from the evidence, having in mind the fact that the accountant has stated his account under oath and that the "¡burden of proof is upon the exceptants.</p> <p>“The auditor, therefore, overrules the exceptions to the ac•count of Arthamer Ames. If he is in error, the court on appeal will do justice to exceptants, — the finding of the auditor being an inference drawn from facts proved, and not being entitled to the same weight as if the facts had been directly found.” Hind-man’s Appeal, 85 Pa. 470.</p> <p>To which the appellants excepted because the auditor had not ■•surcharged accountant with the $1,200 and because he admitted a daughter of accountant to testify in his behalf concerning matters happening before the death of John Ames.</p> <p>The court, Hart, J., dismissed the exceptions and confirmed the report, filing the following opinion:</p> <p>“The question of fact for the auditor’s decision in this case was whether the $1,200 which the accountant, Arthamer Ames, received from his father, on the second of April, 1884, was intended as a gift or a loan. The testimony on the subject is something conflicting and contradictory. Judging from the mere reading of the depositions, it would not seem that the accountant, on whom rested the burden of proof from the start, has made out his case as clearly as could have been desirable. But, keeping in mind that the findings of fact by an auditor, like the verdict of a jury, are not to be set aside, except for clear and plain mistake, and that the auditor in this case had the advantage of seeing the witnesses, and noting their manner and deportment on the witness stand (and, so, of judging of their relative intelligence, candor, and credibility), I am not prepared to say that he has fallen into such flagrant error as to justify the court in reversing his decision.</p> <p>“The position assumed by counsel for exceptants, that the reservation of interest to be paid to the father during his life, if there was such a reservation, took from the transaction the character of a gift, and converted it into a loan, whatever may have been the intention of the father, is not tenable. A condition of that kind may be attached to a gift, as well as to a sale or a loan. Riegel v. Wooley, 81* Pa. 227.</p> <p>“I think the auditor was right in ruling that Annie Ames was a competent witness, on the ground that she was called to tqstify against her interest The fact of her being a daughter of the accountant, Arthamer Ames, went to her credibility, but did not affect her legal competency.”</p> <p>From this decree appellants took this appeal, assigning as error that the court erred in not surcharging accountant</p> <p>—The evidence was insufficient to prove a gift; and the declarations of accountant show that the transaction was a loan, for which he intended to give his note.</p> <p>The money having been obtained by Arthamer, under am arrangement by which he was to give his father a note for it, the legal effect is the same as if a note was given and the law holds it to be a loan, and not a gift</p> <p>If a son asks his father to lend him a sum of money, and the father does so, without saying more, or anything about the repayment of jh, or taking a security of any kind for its repayment, it becomes a debt upon loan, and not an advancement; and the law in such case, it being a debt, implies a promise to repay immediately. Levering v. Rittenhouse, 4 Whart 140, 141.</p> <p>Where a son receives money from his father to enable him to embark in business, and gives his note for the amount at the time, the transaction cannot be charged from a loan to a gift, or advancement, by the loose declarations of the father that he ‘gave’ the money to the son. The idea of a gift or advancement is repelled where an obligation for the payment of the amount is taken at the time the money is received by the child from the parent. Roland v. Schrack, 29 Pa. 125.</p> <p>The authorities are clear and explicit that this state of facts rebuts the idea of a gift. Levering v. Rittenhouse, 4 Whart. 140; High’s Appeal, 21 Pa, 287; Harris’s Appeal, 2 Grant Cas. 304; Miller’s Appeal, 40 Pa. 60, 80 Am. Dec. 555.</p> <p>The use of the money by Arthamer was to be paid for, and his father was to receive interest, which necessarily implies that the title to the principal was to remain in him until his death.</p> <p>No gift can be made by words in futuro. Fink v. Cox, 18 Johns. 145, 9 Am. Dec. 191; Be Campbell, 7 Pa. 100, 47 Am. Dec. 503; McGuire v. Adams, 8 Pa. 286; Withers v. Weaver, 10 Pa. 392; Headley v. Kirby, 18 Pa. 326; Lonsdale’s Estate, 29 Pa. 412; Trough’s Estate, 75 Pa. 117; and Zimmerman v. Streeper, 75 Pa, 147; Helfenstein’s Estate, 77 Pa, 331, 18 Am. Rep. 449.</p> <p>Such a transaction would be in the teeth of our act of assembly in regard to wills. Graham v. Graham, 34 Pa, 482; Pollock v. Ray, 85 Pa. 433; Larkin’s Estate, 16 W. N. 0. 543.</p> <p>The authorities cited by appellants are inapplicable, because there is no evidence that accountant- either requested his father for money or that any interest was to be paid.</p> <p>The auditor’s findings of fact are conclusive. Riddle’s Estate, 19 Pa. 434.</p> <p>It is important to determine where is the burden of proof in this ease.</p> <p>Was the $1,200 which the son received from the father a gift or loan Í A gift is a voluntary conveyance. Bouvier Law Diet.</p> <p>It is a contract executed, and the act of execution is delivery of possession, the essence of the title. Be Campbell, 7 Pa. 101, 47 Am. Dec. 503; Nicholas v. Adams, 2 Whart. 24. ""</p> <p>A gift may have conditions, and they can be such as may defeat it. Nicholas v. Adams, 2 Whart-. 24; Michener v. Dale, 23 Pa. 63.</p> <p>A loan is a contract between two persons, but a gift or advancement is the executed intention of one.</p> <p>If a father without being solicited by a son gives him a sum of money without saying on what account or wherefore he does it, or pays a debt for him, it will be considered a gift or advancement. Levering v. Rittenhouse, 4 Whart. 141.</p> <p>The law defining difference between advancement and loan is applicable, for an advancement is a quasi gift — more like a gift- than a loan.</p> <p>“An advancement is a gift.” Dutch’s Appeal, 57 Pa. 466.</p> <p>In Weaver’s Appeal, 63 Pa. 311, the court declares that when an intestate father gives money or pays for land and gives it to his child, it is construed as an advancement, not a loan. See also Miller’s Appeal, 40 Pa. 61, 80 Am. Dec. 555.</p> <p>One thousand two hundred dollars was a comparatively small sum for an aged farmer as wealthy as the auditor’s report shows John Ames to be; especially when given to a son whom he had never helped, while “he had helped all the rest of the children,” as he expressed it. Lawson’s Appeal, 23 Pa. 87.</p> <p>The presumption therefore is, it was a gift Weaver’s Appeal, 63 Pa. 311.</p> <p>The charge against accountant is embezzlement. Wherever such charge is made, its gravity requires careful consideration of the evidence. Milligan’s Appeal, 97 Pa. 532.</p>

Prom the depositions in support of the rule it appeared that the judgment was entered by I. J. McOandless against T. R. McCall, John Grossman, and George K. Baker, on a judgment note executed under the following circumstances: In April- or May, 1885, T. R. McCall called on John Gross-mail, a farmer,' and asked him to become his surety for a certain sum of money; Mr. Grossman refused at first to do so, but at last consented to become surety for him provided McCall would get…

On November 10, 1885, the plaintiff filed his petition for the appointment of viewers to assess the damages sustained in consequence of the construction of the defendant’s railroad. Viewers were appointed who made an award in favor of the plaintiff from which the defendant appealed. On June 16, 1886, the plaintiff, under direction of the court, filed his narr. .as in an action of trespass quare clausum fregit and the defendant pleaded not guilty.

<p>Error to Common Pleas of Armstrong County to review a judgment for defendants in ejectment.</p> <p>This was an action of ejectment brought by James E. Craig et al., minor children of Sarah Craig, deceased, a daughter of Samuel Craig, by their guardian Hamilton Fleming, against John C. Craig el al., the minor children and widow of John B. Craig? deceased, who was a son of the said Samuel Craig, by their guardian, William Hodge, for 150 acres of ground; but the case was tried as if involving 50 acres of ground, part of the 150 acres, in the possession of defendants.</p> <p>It appeared that in 1851 Samuel Craig owned 150 acres of ground; and in that year his son John B. Craig went into possession of 50 acres thereof, under an alleged parol gift, cleared a portion thereof, erected a house and lived therein with his family, farming the land and paying taxes thereon, until April, 1870, when he died; and since then defendants have continued in possession and paid the taxes thereon up to August 15, 1883, when this action of ejectment was brought.</p> <p>In 1870 Samuel Craig died intestate, leaving heirs, inter alios, the parties hereto.</p> <p>The plaintiffs herein began proceedings in partition in the orphans’ court, wherein defendants denied the right to partition to 50 acres of the west end of the tract, and thereupon the court stayed the partition proceedings and directed this present ejectment. The evidence for defendants besides the above facts tended to show that three of the boundary lines were the original limits of the tract and that the division line was marked. One witness testified that in 1862 or from 1862 to 1864 he mowed for Samuel Craig one day and Craig then pointed out a corner of John’s land, saying it was 50 acres, and “it runs toward that chestnut tree, and runs south as far as that chestnut tree at the far end of the field, and then runs west so far that when it would run south again it would make 50 acres.”</p> <p>The court, Neale, P. J., submitted the case to the jury, charging, inter alia, that if defendants rested solely upon a parol, gift or contract, the evidence thereof was insufficient, but charged that defendants were entitled to a verdict if the jury found that tlicir occupancy of the land had been, open, notorious, adverse, hostile, uninterrupted, and distinct for a period of twenty-one years, and answered several points, as is set forth in the assignments of error.</p> <p>The jury found for defendants and from judgment thereon plaintiffs brought this writ of error, assigning as error:</p> <p>1. The court erred in allowing the jury to consider the defendants’ claim of title under the statute of limitations, there being no evidence'to justify this submission.</p> <p>2. Its answer to the plaintiffs’ fourth point, which point and .answer are as follows:</p> <p>“There is no sufficient evidence in this case of an ouster or. disseisin by John 33. Craig of his father or coheirs by notice, or .such acts as would amount to notice, or ouster as is required by law.”</p> <p>Ans. “Affirmed, with the explanation we have given to you in our general charge.”</p> <p>3. The court erred in its answer to the plaintiffs’ tenth point, which point and answer are as follows:</p> <p>“That- there is no evidence in this case sufficient to maintain a parol gift or sale from Samuel Craig to his son John 33., and that the declarations of Samuel Craig that he had given or intended to give to his son John 33. 50 acres of land will be disregarded by the jury when considering the question of the statute of limitations, and the court is requested to withdraw all such evidence from the jury.”</p> <p>Ans. “This point is refused.”</p> <p>4. The court erred in its answer to the plaintiffs’ eleventh point, which point and answer are as follows:</p> <p>“That there is no such evidence of fixed, definite, and uniform boundaries of the land in dispute as claimed by John 33. Craig for a period of twenty-one years before suit brought as would support his claim under the statute of limitations; and the verdict must be for the plaintiff.”</p> <p>Ans. “That point is refused.”</p> <p>5. The court erred in its answer to the defendants’ first poi it, which point and answer are as follows:</p> <p>“The evidence on the part of the defendants, if believed, is sufficient from which the jury may infer a gift of the 50 acres of land in controversy to John B. Craig by his father, Samuel Craig.”</p> <p>Ans. “That point is affirmed, with the explanation we have given to you in our general charge.”</p> <p>6. The court erred in its answer to the defendants’ second point, which point and answer are as follows:</p> <p>“If the jury find, from the evidence, that John B. Craig entered into possession of the said 50 acres of land in 1852, or prior thereto, in pursuance of said gift, and from that time continued in the peaceable, open, notorious, separate, adverse, hostile, exclusive, and uninterrupted possession of said land until the death of his father and himself; that since his death his possession and occupancy have been continued by his wife and children who have held it in the same manner until the inception of this suit, to wit: the 19th day of June, 1883, then the defendants have a perfect title to the said land under and by virtue of the statute of limitations, and their verdict should be for the defendants.”</p> <p>Ans. “That point is affirmed.”</p> <p>7. The court erred in its answer to the defendants’ third point, which point and answer are as follows:</p> <p>“If the jury believe, from the evidence, that John B. Craig went into the possession of the 50 acres of land in dispute in 1852, claiming the land as his own, and occupied the same continuously to the time of his death, peaceably, openly, adversely, hostilely, separately, notoriously, and exclusively against all persons; and his widow and children have occupied and lived on the premises in the same manner since his death up to the 19th day of June, 1883, then defendants have a perfect title under the statute of limitations, and their verdict should be for the defendants.”</p> <p>Ans. “That point is affirmed.”</p> <p>The answer to plaintiffs’ fourth point, embraced in the second assignment of error, was misleading. The court answered: “Affirmed, with the explanation we have given to you in our general charge;” while the general charge failed in any manner to refer to the' point.</p> <p>The jury was thus left to believe that the proposition was not affirmed without qualification, and that it was not true as a legal proposition.</p> <p>The evidence of boundaries was insufficient. One witness whose testimony is uncorroborated will not be sufficient to make title to land. Sliellhammer v. Ashbaugh, 83 Pa. 24.</p> <p>The court is bound to weigh the evidence. Mead v. Conroe, 113 Pa. 220,' 8. Atl. 374.</p> <p>In the general charge the court instructed the jury that the evidence of gift was insufficient, but in answer to defendants’ first point declares that the evidence is sufficient to infer a gift.</p> <p>This direct contradiction misled the jury.</p> <p>This contradiction is rendered more injurious by the affirmation of defendant’s second point, that if John B. Craig entered into possession of the land “in pursuance of said gift and continued in possession,” etc., the title would be good under the statute of limitations. This point is predicated upon a gift which the court had declared did not exist.</p> <p>The entry of John B. Craig was by a gift: ergo, by the statute of frauds the entry had the effect of a lease or estate at will only.</p> <p>John B. Craig being then, by said statute, the lessee or tenant at will of his father, to start the statute running there must be on his part:</p> <p>(1) A repudiation of the previous relation. Sedgw. & W. Trials of Title to Land, § 751; Zeller v. Eckert, 4 How. 289, 11 L. ed. 979; Bannon v. Brandon, 34 Pa. 267, 75 Am. Dec. 655; Long v. Mast, 11 Pa. 195; Watson v. Gregg, 10 Watts, 296, 36 Am. Dec. 176; Hood v. Hood, 2 Grant Cas. 237, and Magraw v. Pennock, 2 Grant Cas. 89; Forward v. Deetz, 32 Pa. 73.</p> <p>(2) This repudiation must be brought home to the owner of the paramount title and must be actual, positive, and unequivocal.</p> <p>There was no such repudiation, nor was it ever brought home by John Craig to his father. It will not do for him to claim and talk, he must do some unequivocal act of repudiation and bring this home to his father.</p> <p>The assignments of error raise three questions: (1) Sufficiency ■of evidence of gift; (2) was the possession of defendants exclusive and adverse? and (3) was the claim sufficiently definite in extent?</p> <p>Several witnesses testified to declarations of the father admitting the gift</p> <p>The son cleared and farmed the land and paid the taxes; and he and his heirs have held possession for thirty-two years.</p> <p>Such evidence was properly submitted to the jury. Campbell v. Braden, 96 Pa. 388; Graham v. Craig, 81* Pa. 459; Ewing v. Ewing, 96 Pa. 381.</p> <p>The evidence of gift, possibly not sufficient to prevail against the statute of frauds, was yet sufficient to show that the son took and held adverse possession.</p> <p>There was sufficient evidence of the extent of claim, together Avith the payment of taxes. Lund v. BroAvn, 14 W. N. C. 490.</p> <p>Whenever the person who has the right confesses himself to be out of possession, the act of limitation runs against him, because there is sufficient evidence of his being ousted, although the land be not 'inclosed by his adversary. So.\vithout actual ■confession a man may shoAv by his conduct that he considers himself out of possession. Boyer v. Benlow,. 10 Serg. & E. 306.</p>

The facts are stated in the charge of the court below, Blair, P. J., as follows: This is a scire facias to revive a judgment. Judgment was entered in this court, in 1853, against Henry J. Portser, and in favor of Joseph Anderson. The scire facias to revive that judgment was issued on the 4th of August, -1876, so that nearly-twenty-three years have elapsed since the entry of the judgment, ■and the issuing of the scire facias.

Margaret J. Hazelbaker, afterward Margaret J. Guffey, and Sarah A. Hazelbaker, now Sarah A. Cummins, were the daughters of George Hazelbaker, deceased, late of Washington county. February 7, 1865, George Hazelbaker made his note, under seal, for Hie sum of $131 payable six months after date to the order of Margaret and Sarah Ann Hazelbaker.

favor of plaintiff in ejectment. Plaintiff sued to recover possession as tenant by curtesy. Plaintiff was, on June 6, 1883, married to Mattie A. Logan, who was seised of the land in suit. She had resided thereon before her marriage and plaintiff had resided on a farm a few miles distant. Immediately after the marriage they resided at plaintiff’s house for a few days when they separated, the wife returning to her former home.

A judgment having been recovered against Elias A. Mortland, execution was issued and levied upon certain land the title of which was alleged to be in said Mortland- The land was sold at sheriff’s' sale and purchased by Ezekiel Dougherty, who brought this action-against Mortland to recover possession of the proper ty. Afterwards Stephen Mortland, who was in possession of the property, was, upon motion, added as a codefendant in the action.

Certiorari sur appeal from a decree of the Common Pleas of Westmoreland County confirming the report of auditors to distribute an assigned estate.

Foster. Before tbe auditor appointed to make distribution, Ross Reynolds, Esq., Andrew Schall presented a claim founded upon a judgment entered against Thomas A. Foster at No. 368, Juné Term, 1876, revived by amicable sci. fa. at No. 159, June Term, 1881, for $1,050. The continuance docket entries were as follows: Andrew. Schall ] v. [ No. 368, June T., 1876, d. s. b.. $1,050, Thomas A. Foster.J int. from May 2, ’76, at 8 per cent.

<p>Error to Common Pleas of JButler County to reverse a decree of the court below discharging the defendant under the insolvent act.</p> <p>The facts fully appear in the following opinion and order of the court below, McMichaer, J.:</p> <p>Perry Bricker, the petitioner, was arrested on a capias ad respondendum, issued at the suit of A. A. Eshenbaugh. Her cause of action was an alleged breach of promise of marriage. The defendant gave to the sheriff a bond, with his father as special bail to the action, and was by the sheriff discharged from custody. The case was tried and resulted in a verdict and judgment for the plaintiff for $1,000. On the same day on' which the judgment was entered in that case and without any execution having been issued on the judgment, the defendant, the present petitioner, surrendered himself to the sheriff (his bail being present) for the purpose of discharging his special bail from liability on the bond, and immediately on the same day presented his petition to court, praying to be discharged from custody, upon his giving bond to appear at the next term of court and present his petition for the benefit of the insolvent laws. His bond was presented, and approved, and the court directed the sheriff to discharge him. To this order Miss Eshenbaugh’s counsel objected, because the defendant was not at the time in custody under any execution process; and now, upon final hearing, at the time fixed by the court on the presentation of the petition for the benefit of the insolvent' laws the same objection, with others, is again urged.</p> <p>Several objections to the final discharge of the petitioner have been filed. He has been examined under oath, and other evidence has been heard respecting his property. It does not appear that he has any property or that he has concealed or disposed of any property to defraud his creditors or with the expectation of receiving any future benefit to himself therefrom. The judgment obtained against him by Miss Eshenbaugh is not founded on actual fraud or deceit, but simply on his refusal to fulfil a contract of marriage with her. There is nothing in the case which presents sufficient reason to refuse the prayer of this petition, unless it is found in the fact that he, and his special bail to the action, surrendered him to the sheriff immediately after judgment was entered against him, and when no execution had been issued on the judgment, and he was not in custody under any execution process.</p> <p>The only authority cited to support the objection to the discharge on this ground is the opinion of Judge King in Ex parte Mason, 2 Ashm. (Pa.) 239. That case is certainly in point, and if the reasoning of the learned judge is correct, it should decide this case against the petitioner.</p> <p>That case was made to turn (and no doubt correctly) on the point as to whether Mason could, under the circumstances, renew his special bail. In our present case, the point is made that Pricker could after his surrender to the sheriff have been released again by giving new bail to the action, and hence did not need the present proceeding to relieve him from custody, and that this is an attempt to obtain a discharge under the insolvent laws when he is not entitled to it. Is this true ?</p> <p>The act of June 13, 1836, was passed to regulate-the commencement of actions. Its tenth section gives the form of the condition in the bond to be taken by the sheriff where a suit is commenced by capias. It is: “That if the defendant . . . shall be condemned in the action, at the suit of the plaintiff, he shall satisfy the condemnation money and costs, or surrender himself into the custody of the sheriff of the county, or in default thereof, that the bail will do so for him.”</p> <p>That form would not do for a bond taken after judgment. The defendant would then be condemned already. The action, as an action, would be a.t an end. «Judge King, in his opinion cited, admits that the “form of the recognizance” would have to be altered, but cites authorities to show that it may be altered. These authorities do not apply to a statutory provision such as ours. It is very doubtful whether a bond which did not substantially follow the statute would be held valid. Then § 19 of the same act provides: “It shall be lawful for any defendant committed to prison by .virtue of any capias ad respondendum., or surrendered by his bail as aforesaid, to enter special bail to the action, in the manner now practised and allowed, at any time before final judgment obtained against him.” Not after final judgment obtained against him. I do not find anything to warrant the conclusion that under our statute a defendant can enter special bail to the action after final judgment obtained.</p> <p>The eighth section of the act of June 16, 1836 (insolvent law), provides: “That nothing herein contained shall prevent a debtor arrested on a bail piece, from giving new bail, according to law, and obtaining his release thereby.”</p> <p>This act was approved three days after the one before cited, and the new bail then to be given “according to law” must have meant “special bail to the action ... at any time before final judgment obtained,” and not such bail after final judgment.</p> <p>I am thus led to the conclusion that Perry Bricker could not have renewed his bail, or given new bail, after his surrender in this case. If that be correct, then being in jail after final judgment, he could be released in only one of three ways: First, by paying the condemnation money and costs; second, by discharge under the insolvent laws, or if that could not be done, because no ca. sa. had been issued against him, then, third, to remain in jail till the plaintiff saw fit to issue the execution, and then be discharged under the insolvent laws.</p> <p>He could not get out by the first way, because he did not have the money, and it will scarcely be claimed that he was at the mercy of the plaintiff in the judgment, so much as to be obliged to await her will, and be discharged only after execution issued. Then the second way mentioned must be available, or he has no way. This argument is baaed on the position that the insolvent laws were intended for the relief of those who had no other means of relief; and that I believe to be the correct view of these statutes. Then these statutes should be construed so as to meet the purpose for which they were passed.</p> <p>The language in §§ 2 and 4 of the act is certainly comprehensive enough to include this case, and when the petitioner has no other means of relief, it is the duty of the court to grant him this means.</p> <p>The petitioner will be discharged upon his talcing the oath and making assignment of all his estate, property and effects, as required by law.</p> <p>Thereupon a decree was entered discharging the petitioner on his taking the oath and making assignment, and Anna A. Eshenbaugh filed exceptions, which were not sustained. She thereupon took this writ, alleging the following specifications of error:</p> <p>1. The court erred in not refusing the discharge, for the rea- . sons given in exception 1, which reads as follows:</p> <p>“That this is a civil proceeding, and in such case the discharge of the debtor under the insolvent act can only be when he is arrested, detained, or held on final process, which is not the case before the court.”</p> <p>2. The court erred in not refusing the discharge for the reasons given in exception 2, which reads as follows:</p> <p>“That the said Bricker, if in custody at all, at the time he made his application for the benefit of the insolvent laws, had his remedy of entering new bail to the action and thus obtaining his liberty, but was not entitled to give bond to take the benefit of the insolvent laws.”</p> <p>3. The court erred in' not refusing the discharge for the reasons given in exception 3, which reads as follows:</p> <p>“That no final process had issued at the time said Bricker made said application, nor has any such process yet issued, or said Bricker been arrested by virtue thereof.”</p> <p>4. The court erred in not refusing the discharge for the reasons given in exception 4, which reads as follows:</p> <p>“That the judgment in this case is for damages on a breach of contract of marriage, and under the act of July 12, 1882, the said P. B. Bricker is liable to arrest and imprisonment on failure to pay the same, and would not be entitled to discharge therefrom in the present application.”</p> <p>5. The court erred in not sustaining exception 5, which reads as follows:</p> <p>“That the declaration in the case, upon which'the said judgment of $1,000 was obtained, alleged fraud and deceit on part •of the defendant in his contract of marriage with the plaintiff and breach thereof, to which the plea of not guilty was entered by the defendant; and the issue being thus made up, and the cause tried, the juiy finding generally thereon for the plaintiff and judgment entered, such finding and judgment are final and conclusive .of all the facts put at issue by the pleadings, and estop inquiry into the facts on the present application.”</p> <p>6. The court erred in not refusing the discharge for the reasons given in exception 6, which reads as follows:</p> <p>“The time said application was made for discharge it was based upon the allegation that the defendant; P. B. Bricker, was in custody of the sheriff, by surrender, according to the terms and conditions of the bail bond given when the capias ad respondendum was issued, which allegation is denied, and ex-ceptant is informed and believes that at the time said application was made said Bricker was not in custody of the sheriff, by surrender or otherwise, but was at liberty, and the said application was premature.”</p> <p>7. The court erred in not sustaining exception 7, and refusing the discharge, which reads as follows:</p> <p>“That to entitle the said Bricker to relief under the insolvent laws, even if this were a proper case, he must have been at the time of said application in custody, such as restrained him and deprived him of his liberties.”</p> <p>8. The court erred in hearing the case'on June 7, 1887, the day after the day fixed for hearing, without order of continuance.</p> <p>The first question presented in the case is one of construction of the act of June 16, 1836, relating to the discharge of insolvent debtors. In the first, second, and third specifications of error it is claimed by plaintiff that the provisons of this act, so far as they relate to the discharge of the debtor, only apply where he is arrested, detained or held under final process and has no-other means of obtaining his release.</p> <p>Section 2'of tire act (1 Purdon’s Digest; p. 777) which reads as follows: “The jurisdiction of the said courts [referring to the common pleas] may be exercised as follows, and not otherwise: ‘In the ease of a person arrested or detained by virtue of any process issued in any civil suit or proceeding, for the re-' covery of money or damages, or for the nonperformance of any decree or sentence for the payment of money, without collusion with the plaintiff, the court of'common pleas of the county in which the debtor shall be arrested or detained shall have power to grant relief as aforesaid,’ ” etc. — seems to describe everyone ■entitled to give bond for the purpose of obtaining discharge, and evidently relates to final process. No other construction can be reasonably given that will satisfy the meaning of the language used.</p> <p>Following this section we have the language of § 4 of the same act: “It shall be lawful for any judge of the court of common pleas aforesaid, or for the prothonotary of such court, to make an order for discharge of any debtor arrested, detained, ■or held by virtue of any process or bail piece as aforesaid on his giving a bond to the plaintiff in such suit or proceeding in such amount, and with such security as shall be approved by •such judge or prothonotary,” evidently referring by the language, — to wit, “or held by virtue of any process or bail piece aforesaid,” to the process mentioned in § 2, which, we submit, means final process.</p> <p>In Ex parle Mason, 2 Ashm. (Pa.) 242, King, J., has said, in construing these sections: “In those steps of a cause in which the defendant could obtain his liberty during the pend-ency of the suit by entering bail for his appearance, such as bail to the sheriff when originally arrested, or bail above after the process had been duly returned, no necessity existed for having recourse to an insolvent bond;” which construction, if proper, brings us to the question, Could Bricker have obtained his release after his surrender, December 6, 1886, without recourse to the insolvent bond, etc. ? We submit that he could have entered new or special bail even after judgment and before final process, and thus obtained his release. 3 Chitty, General Law Practice, p. 373.</p> <p>Again; the judgment is for damages on a breach of contract of marriage; and in our view of the case if final process had issued and Bricker been arrested, he would not be entitled to discharge under the insolvent act This is one of the exceptions to the abolishment of imprisonment for debt, under § 1, of act of July 12, 1842 (1 Purdon’s Digest, p. 49).</p> <p>The act of July 12, 1842, abolishing imprisonment for debt, in certain cases, does not contemplate a proceeding under the insolvent act such as Bricker’s.</p> <p>In the case presented Bricker was at liberty, by virtue of a new bond, entered December 6, 1886, when he applied for the benefits of the act, and did not surrender himself to jail, and, under the rulings of this court, in McEadden v. Dilly, 2 Pa. 61, 62, would not be entitled to discharge.</p> <p>The first Monday of June, 1887, being the 6th, was fixed for hearing. The court, however, passed the case without order, and on the following day, June 7, heard it. This we submit was error.</p> <p>In an application for the benefit of the insolvent laws the debtor is the actor and must, in the language of this court, in Bartholomew v. Bartholomew, 50 Pa. 200, “set in motion the machinery of the law which must result in his discharge.”</p> <p>It was the duty of Bricker to have asked and obtained his discharge at the time fixed for hearing, or have laid grounds and procured an order for a continuance, and appointment of another day for final hearing. McDonough’s Case, 37 Pa. 276.</p>

<p>Error to Common Pleas No. 2 of Allegheny County to review a judgment in favor of plaintiffs in an action of assumpsit.</p> <p>This action was brought by John Errett and John Davis, partners, as Errett & Davis, for use of William Hill, assignee, against J. Charles Bedell for balance alleged to be due on a building contract.</p> <p>The facts are fully stated in the charge of the court below, Ewing, J., as follows:</p> <p>About the first of May, 1883, J". Charles Bedell, being the owner of a large lot of ground in Mansfield, entered into a contract with the plaintiffs, Errett & Davis, to construct for him on his lot four houses, two of them being in fact double houses, making six dwellings in all, one of the six being of brick with a store room in the lower story, the contract price being $7,375 ; and it is conceded that some extra work was done by direction of Mr. Bedell, and there is no dispute as to price, except as to one item of that extra work, the plaintiffs claiming $16, while the defendant offers testimony to show that $7.50 or $8 would be a proper price for it. Payments have been made before and since the' bringing of this suit, which reduce the amount to $986.68, if you allow the plaintiffs’ price for the extra door and $978.68 if you take the price claimed by defendant.</p> <p>The first dispute that arises is in regard to the terms of the contract. It seems that there was a plan made, and there are specifications; and except as to these plans and specifications, the contract was verbal; and thereupon we have the not uncommon result, a misunderstanding. You are the judges of the credibility of the witnesses. If I were on the jury, I would have no hesitation in concluding that the parties on both sides honestly believed what they now say as to the contract. People will disagree, and you must determine between them.</p> <p>The first and most important item of difference in regard to the terms of the contract is as to the time those houses were to be completed. Mr. and Mrs. Bedell say they were present when the making of the contract was completed with Mr. Errett, of the plaintiffs’ firm, and that there was a distinct agreement that the houses should be finished by the first of August. Mr. Errett says there was no such agreement — no time definitely fixed. Mr. Davis says he was not present, but that it was talked about repeatedly in the presence of Mr. Errett and Mr. Bedell and that the understanding of what was said was that they were to be finished before the winter set in; and Mr. Hill, assignee of these plaintiffs, says that in numerous interviews with Mr. Bedell there was no complaint made to him about uheir not being finished in accordance with the time mentioned, although there were numerous complaints about other matters..</p> <p>Now it becomes one of the important questions of fact for you to determine as to what that contract was. If the plaintiffs agreed to finish the houses by August 1, then they are liable for any damage that resulted to the defendant by reason of their not being completed at that time. If they did not. agree to complete them at any definite time, then the contract would be that they must complete them in a reasonable time under all the circumstances, taking into account the amount of the contract, kind of houses and the season [and if they did not complete them within a reasonable time they would be bound to deduct the damages that Mr. Bedell suffered.</p> <p>The most obvious way of getting at these damages, if you find that the defendant is entitled to any, would be to find what the-houses would rent for, what he would have received for them between the time they should have been ready.for occupancy and the time they were ready, and perhaps deducting from that, interest on the money he would have had to pay them so much the earlier. If he did not pay what he was to pay at the first of 'August if they had been finished then, there would be some deduction to make for interest on the amount of money withheld.] 1</p> <p>But the most natural way is the loss of rent that would accrue. There is a difference in regard to the time at which the payments were to be made. Mr. Errett says they were to be made along in proportion to the work done- — as they progressed; Mr. Bedell says that two thirds was to be paid as they went along, and one third was to be reserved until the completion of the houses; and a very important question is as to the date when interest would begin. If one third was to be held back until they were finished, then the interest would not begin until that time, and I am inclined to think that even on this balance that is left at the time you may fix upon as the time for the completion of the houses — if you find any balance — that [the beginning of the running of interest would be when the houses were substantially finished or when they were ready for occupancy.] 2</p> <p>The parties differ in regard to the time they were ready for occupancy, Mr. Errett and Mr. Davis both saying they were all ready for occupancy before they made their assignment in December, and they give the date at which one of the houses was ready for occupancy as in September and the other October, while Mr. Bedell says the first house was not ready until the first of ' -October, when Mr.. Davis, the attorney, went, into it, and the other not until the first of November, and that thebfiek house and.-the-double house in the rear were not ready for occupancy until the first of April. This is another question of fact which you. will have to settle.</p> <p>Perhaps the matter upon which there has been the most contest is as to whether or not the houses were built in accordance with the plans and specifications. [The specifications will be sent out with you, and there are several gentlemen on the jury who are very familiar with building and with specifications— one especially who knows a great deal more than we do about this matter.] 3</p> <p>[But I must say this, — that plans and specifications never give absolutely everylittle detail. A great deal must be left and is left in all cases, to the common manner of finishing a building and doing work as understood by workmen, and without any specification. AVork-is to be done in a reasonably substantial, fair manner, in. accordance with the particular class of building on which it .is being done. As I suggested yesterday, if you are building a common stable and are bargaining about the lumber to go in it, you take what is ordinarily used for such a building, and you put upon it the style of workmanship that is ordinarily expected. If you are building a $500 house it is not expected that the same sort of expensive work will go on it • as would be put on a $20,000 house.] 4</p> <p>Now the plaintiffs say that they have built these houses fairly in accordance with the specifications; and the defendant says they have not. A great deal of testimony has been offered about it on each side and counsel has gone over that testimony and we will not undertake to do so. If plaintiffs have finished the houses fairly and thoroughly — or substantially so, throughout, in accordance with the plans and specifications, the mere fact of little trifling matters being overlooked, that were remedied thereafter, would not prevent the plaintiffs from receiving the-full contract price. But they wore bound to comply with their contract in good faith; and if they have not done so, the defendant is entitled to deduct from the contract price the damage he-has suffered. There are various things mentioned as defective;, for instance, it is alleged that the plastering is cracked; the walls crooked; and I do not know that we have a better illustration of what I want to impress on you than in that matter. The defendant was entitled, we will say, to have that wall straight. He might have refused if the buildings were not finished according to the contract to pay for them until they were so finished. He took possession of them and is enjoying them; therefore he can simply deduct the less value of the houses, as he got them, from what they would have been if they had been finished in accordance with the contract, and it does not follow that the cost of remedying the defect that exists is necessarily the damage; and to go back to the illustration of the plastering — now it may be that the plaster being off a little panel of this size would require the replastering of the entire room. It would require the whole of the work proposed to be taken off at a very large expense, while the lessening of value on account of the crookedness under that panel might have been very slight. The damage is, not what it costs to do that, but how much less is the house worth with that defect in it than if it was straight. The question is, How much less is the house worth than it would be if it were finished in accordance with the contract, provided you find that it has not been so finished; and as you find the facts so you will find your verdict, either for the plaintiffs for some amount and adding interest from the time the houses were finished ; or if you find that the buildings were not finished in accordance with the contract and the defendant has suffered damage, you wiJl deduct that. If you find his damage equals the balance you will find for defendant.</p> <p>The verdict and judgment were for the plaintiffs for $997.68. The assignments of error specified the portions of the charge inclosed within brackets, and are designated by exponents, respectively. '</p> <p>The court erred as stated in the first assignment of error in charging the jury that in estimating the damages for the delay in the completion of the buildings they should deduct from the rental value of the buildings during the period of delay, interest on the money, the payment of which was delayed by the detention in completing the work.</p> <p>This seems to be error because it charges the defendant below with interest on money which the contract made it his duty to keep uninvested and ready for payment from the time the work should have been finished, and the payment of which was delayed by the conduct of the plaintiffs above, and by no default on the part of the defendant. Rogers v. Bemus, 69 Pa. 432; Brown v. Foster, 51 Pa. 165; Pittsburgh Coal Co. v. Foster, 59 Pa. 365; McConey v. Wallace, 22 Mo. App. 377.</p> <p>As to the portion of the charge covered by the second assignment of error, there are two objections: First, interest is only chargeable from the time the principal became due, and it is admitted by both sides that the whole of the principal would not become due before the work was entirely finished. The evidence shows that the houses were considered ready for occupancy and were occupied when they were far from being entirely finished. The contract being for a finished and completed job, interest should only riin from the time the work was finished and completed; and second, according to the testimony of Mr. Bedell, tbe balance of the contract price was not to be due until there was no possibility of liens against the property., and according to the evidence, claims for which liens could be filed did exist long after the houses w;ere considered ready for occupancy, therefore the charge of the court takes from the jury (as far as the question of interest is concerned) all question as to whether or not the last payment was to be reserved until no liens could be filed.</p> <p>As to the third assignment of error to the judge’s charge where he says: “There are several gentlemen on the jury who are very familiar with building and with specifications — one especially who knows a great deal more than we do about this matter.” The deliberations of the jury in the box should be free from any bias or influence save that of the evidence, the arguments of counsel and the charge of the court upon the law.</p> <p>Assuming that Errett & Davis had completed the house on August 1, they would have got their money, and Bedell would have got his rents. He would thus have his rents less the interest on his money. But the buildings were not completed. Errett & Davis paid his rents. There should theis be deducted the interest on his money, anfi thus the net result to Mm would be the same as though the houses had been completed in time and he had paid his money.</p> <p>If a possibility of liens existed to the amount of $1,000, Be-dell could not ask to be allowed to retain $7,000 to cover them. So far as any possibility of liens existed, that was arranged, Bedell paying tbe amount, and no interest charged. The balance after payment of possible liens was part of the amount sued for; on that interest was chargeable, from the time the buildings were substantially finished or ready for occupancy.</p>

2 of Allegheny County to review judgments in favor of plaintiff in actions on the case on policies of fire insurance.. These three actions were brought by the Pittsburgh Exposition Society, against the Allemania Eire Insurance Company, the St. Paul Fire & Murine Insurance Company, and the Insurance Company of Pennsylvania, separately, upon policies of fire insurance for $1,000 each, issued by said companies respectively upon the same premises.

2 of Allegheny County to review a judgment in favor of the plaintiff in an action of trespass on the case. The facts are stated in the charge of the court below, White, J., which was as follows: • It is very important that we should have a clear perception of the issue in this case. The plaintiff presented certain points for instructions to the jury. I have refused all of them, because I thought they were based on a misrepresentation of what was the real issue in this case.

<p>Testator devised his real and personal estate to his brother for life, and on his brother’s death “the real estate to be divided amongst my legal heirs, share and share alike.” Held, that the testator’s intention was that his legal heirs should share alike, in accordance with the statutes of distribution and therefore per stirpes.</p> <p>Note. — Where the parties entitled to take stand in the same degree of consanguinity, they take per capita. Pister’s Estate, 2 Woodw. Dee. 323; DeHaven’s Estate, 1 Clark (Pa.) 336; Miller’s Appeal, 40 Pa. 387; Krout’s Appeal, 60 Pa. 380. But where of different degrees, then the distribution is per stirpes. Hoch’s Estate, 154 Pa. 417, 26 Atl. 610. The act of April 27, 1855, provided that grandchildren of brothers and sisters, and children of uncles and aunts, should in all cases take per stirpes, though in the same degree. This rule was changed by9the act of June 30, 1885, so as to conform with the principle stated as to other relations. Cremer’s Estate, 156 Pa. 40, 26 Atl. 782. But this act did not repeal the act of 1855, in so far as it created new classes of collaterals, and the uncle cannot take to the exclusion of children of a deceased uncle, as would have been the case under the act of April 8, 1833. McConnell’s Estate, 5 Pa. Super. Ct. 120.</p>

<p>In an action for damages for obstructing a private way, where there is ■evidence of a direct and positive character of a parol grant of a right of way and this evidence was properly submitted to the jury, who gave a verdict in favor of such right, the supreme court will not consider the ■question of an implied grant by necessity raised in the court below.</p>

2 of Allegheny County to review a judgment in favor of the plaintiffs in an action for damages for personal injuries suffered by Mrs. McLuckey through the alleged negligence of a driver of the defendant. The facts are fully stated in the charge of the court, by EwiNG, P. J., as follows: Mrs. McLuckey has brought her suit to recover damages for an accident that occurred to her some time in April last on Thirty-Eourth street, on the south side, in the city of Pittsburgh.

<p>Certiorari to the Quarter Sessions of Allegheny County to review proceedings on the laying out of a public road.</p> <p>November 10, 1885, the following petition was presented to the court of quarter sessions of Allegheny county:</p> <p>“The petition of the undersigned inhabitants of the townships •of Upper St. Clair and Snowden, in said county, respectively, •showeth: That your petitioners labor under great inconveniences for want of a public road to lead from Upper St. Clair station in the township of Upper St. Clair, to the intersection of Christian ’Walther’s private road with the road leading to Bethel •church, in the township of Snowden. Your petitioners therefore pray the court to appoint proper persons to view and lay •out the same according to law; and they will ever pray,” etc.</p> <p>Viewers were duly appointed and reported as follows:</p> <p>“We, the undersigned persons, appointed . . . respectfully report:</p> <p>“That, having met on the third day of December, 1885, pursuant to legal notice, and being duly sworn according to law, all the viewers being present, we have viewed the route of the above-described road and part of the country adjacent thereto, and after due consideration and diligent inquiry as to the necessity for said road, are of the opinion that the prayer of the petitioners should be granted for the reasons set forth in their petition.</p> <p>“We have, therefore, located and distinctly marked upon the ground, and do recommend for public use the following described road, to Avit: [describing it].</p> <p>“The undersigned further report that they endeavored to procure from all owners of property over which said road passes releases in writing from all claims to damages that may arise from opening the same, and failed to procure such releases. And having taken into consideration the advantages to be derived by said owners, we have assessed the damages sustained by P. Mink at $50.</p> <p>“All of said damages to be paid by the county of Allegheny. We also annex a plot or draft showing courses and distances and noticing briefly the improvements through which said road passes. All of which is respectfully submitted.</p> <p>“In testimony whereof, ...”</p> <p>The report was presented and approved December 12, 1885. and December 29, 1885, exceptions were filed thereto.</p> <p>On the hearing of such exceptions, the court below, Magee, J., delivered the following opinion: .</p> <p>This case is before the court on exceptions filed to the report of viewers.</p> <p>. It is not the purpose of the court to enter into a discussion of any of the exceptions except the third, which sets forth that the viewers’ report does not state particularly that the road desired is necessary for a public or a private road.</p> <p>It is an essential requisite that the report shall state that the road is necessary and the omission of the viewers to so find and report is a fatal defect to the proceedings. By the 2d section of the act of June 12; 1836 (Brightley’s Purdon, page 1496, pi. 3) ■it.is provided that the viewers shall make report and state particularly (inter alia) (3) whether the road desired be necessary for a public or private road.</p> <p>The language of the report on this subject is as follows: “And after due consideration and diligent inquiry as to the necessity ■for said road, are of the opinion that the prayer of the petitioners should be granted for the reasons set forth in their petition.”</p> <p>Upon referring to the petition for the “reasons set forth” therein we find it stated that the petitioners “labor under great inconvenience for want of a public road,” but find no allegation that it is necessary. In our opinion, the viewers have failed to report the road to be necessary, in conformity to the requirements of law; that the viewers did not intend so to report might, with some force, be contended, in view of the testimony taken upon that point under a rule of court, and filed in the case. The omission may have been accidental, or may have been the full extent to which they were willing to give expression on the subject. However that may be, it requires that the report on that account shall be set aside.</p> <p>Exception sustained. Report set aside.</p> <p>The assignments of error, inter alia, specified the action of the court in sustaining such exception.</p> <p>It is a sufficient compliance with the -law as to necessity, if the report of the viewers shows that they have laid out a road for public use. Re Road, 17 Serg. & R. 388; Re Road, 4 Pa. 337; Re Road, 4 Brewst. (Pa.) 57.</p> <p>Or, in case of a private road, if the viewers return a road for private use. Re Road, 2 Grant (Pa.) 204.</p> <p>Huston, J., delivering the opinion in Re Road, 17 Serg. & B 388, said: “The report does not state any adjudication or necessity, but merely states that they have laid the 'following road for public use.’ .Nothing but a determination to give as-much opposition to this road as possible could have suggested this objection. The viewers are, nay, generally must be, plaih farmers; it never could be supposed mere technical formality was required from such men. The report must state distinctly whether they decide on a public or private road; if that appears plainly in their report,-it is sufficient; no one can mistake this report.”</p> <p>The act of assembly requires that the viewers shall state particularly in their report whether the road be necessary for a public or private road, and this court has so held. Be Boad in South Abington Twp. 33-Pittsb..L.. J. 467. .</p>

William P. Perry, plaintiff, walking from work at a rolling mill, in company with his son, about 1 o’clock a. m., October 9, 1883, went upon Lake road, an extension of Eighth street, city •of Erie, in Millcreek township, and sustained injuries by falling into an unguarded excavation 5 or 5% feet deep.

1 of Allegheny County to review a judgment in. favor of the plaintiff in an action on the ease to recover damages for personal injuries. The following facts appeared at the trial, before Stowe, J.: On the night of March 8, 1.886, H. L. Bevard, while crossing the defendant’s bridge, stepped on a board which broke and precipitated him into the river, whereby he suffered serious injuries.

Hay Walker, Jr., John H. Wilson, George Harley, Emil Winter, and Elarvey Wilson were severally indicted for the manufacture and sale of oleomargarine, contrary to the provisions of an act of the general assembly, approved May 21, 1885, entitled, “An Act for the Protection of the Public Health and to Prevent Adulteration of Dairy Products and Eraud in the Sale Thereof.” The case of the commonwealth was the admission of the plaintiffs in error, which was in the following…

2 of Allegheny County to review a judgment in favor of the plaintiff in an action of ejectment. This action was brought by E. E. Winterhalter against K. J. Stoney, trustee of the estate of Frederick Kaiser, deceased, to recover a lot of ground alleged to have been deeded by Kaiser to the plaintiff. The facts are fully stated in the charge of the court. The plaintiff offered under objection a deed from Frederick Kaiser to Edward Winterhalter (F. E. Winterhalter).

2 of Allegheny County to review a judgment on a verdict for defendant in an action of case to recover the value of certain goods intrusted to the defendant railroad company for transportation, but never delivered to the consignee.

1 of Allegheny County to review a judgment in favor of the plaintiff in an action of ejectment. This action was originally brought by James MeGrew to recover his curtesy in the estate of his deceased wife. He died before the last trial of the case and his administrator was substituted in his stead. James MeGrew and his wife Elizabeth lived in 1875 in a house belonging to the wife in West Newton, Pa.

<p>Where a lease provided that the lessee should not sublet without the written consent of the lessor, under a penalty of $300 in the nature of rent, in addition to the regular rent, and the lessee did sublet without the consent of the lessor, the lessee was liable under his contract for the penalty of additional rent.</p> <p>Note. — The measure of damages for breach of a covenant in a lease is not the value of the lease, but the loss resulting from the breach. Jackson v. Farrell, 6 Pa. Super. Ot. 31; Penn Iron Co. v. Diller, 113 Pa. 635, 6 Atl. 272. If there has been a liquidation of damages, as in Mjxijeb v. Rankin, such penalty controls. But the fact that a penalty is named will not limit the recovery where it does not appear that such sum was a liquidation of damage. Wagle v. Bartley, ante, 271. And in Sharpless v, Murphy, 7 Del. Co. Rep. 22, it was held that the liquidated penalty could not be recovered, where disproportionate to the injury sustained.</p> <p>As to distinction between penalty and liquidated damages, see the presentation of the authorities in editorial note to Condon v. Kemper, 13 L. R. A. 671.</p>

1 of Allegheny County to review a judgment in favor of the plaintiffs in an action of assumpsit. This action was brought to William A. Powell and Hannah J. Powell (formerly Hannah J. Davis) against Jackson E. Pugh to recover $650 which was alleged to have been improperly paid to the defendant by the guardian of Mrs. Powell. In 1862 Hannah J. Davis, when two years old, was taken by Jackson E. Pugh into his house.

2 of Allegheny County to review a judgment in favor of the plaintiff in an action on the case to recover damages for personal injuries. This action was brought by Winnie Kilgallon against ITenry McKinnie and Edward L. Bean, trading as McKinnie & Bean and proprietors of the Anderson hotel in the city of Pittsburgh, to recover damages for injuries caused by an accident on the elevator of the hotel. The hotel was leased by the defendants from Joseph N. Anderson.

2 of Allegheny County to review a judgment for plaintiff in an action of ejectment. The facts as they appeared on the trial, before White, J., were substantially as follows: In 1860 A. G. Oakley purchased the land in dispute, talcing title in his own name; halting become financially embarrassed in 1873 he executed a mortgage on said land without the knowledge of his wife.

<p>A municipal corporation is not liable in damages for an injury which is the result of an honest mistake of judgment made by a public officer in the fair discharge of his duty.</p> <p>Hence, a township is not liable in damages for an injury to property caused by a highway bridge being insufficient to permit the entire volume of water in a stream to be carried off, where the construction of the bridge was an error of judgment on the part of the township supervisor.</p> <p>Note. — A municipality is ordinarily liable for injury resulting from the flooding of lands by the improper and negligent construction of streets or bridges. Krug v. St. Mary, 152 Pa. 30, 34 Am. St. Rep. 616, 25 Atl. 161, 162; Allentown v. Kramer, 73 Pa. 406; Blizzard v. Danville, 175 Pa. 479, 34 Atl. 846; Delahunt v. Chester, 6 Del. Co. Rep. 142. And it is immaterial that damages have been assessed for the change of grade, where the plaintiff is injured by water because of negligence in carrying on the work. Kehoe v. Philadelphia, 199 Pa. 45, 48 Atl. 679. See also Farnliam, on Waters, pp. 1822, 1823.</p>

2 of Allegheny County to review a judgment in favor of plaintiff in an action of debt under the act of April 22, 1794, to recover money lost in gambling. The facts appear from the following charge of the court below, Ewing, J.: This is a suit brought under the act of assembly to recover money lost in gambling.

<p>Where a writ is issued within six years from the time the right of action-accrued with a return of "non eat inventus,” and an alias is duly issued and1 served within six years from the first, that will be sufficient to toll the statute of limitations.</p> <p>Where there is a clause in an agreement of purchase stipulating that if' the purchaser is dissatisfied with his bargain at the expiration of one year,, the vendor will pay back the purchase money, and the purchaser dies within that time, this privilege of the purchaser’s will survive to the purchaser’s heirs and legal representatives, especially when there are acts of the-vendor in evidence showing that such was his understanding.</p> <p>Note. — The institution of an action within six years tolls the statute of limitations, though the return is nihil. Schlosser v. Leslier, 1 Dali. 411. And such can be continued by the issuance of an alias within six years. McOlurg v. Fryer, 15 Pa. 293; Cureier’s Estate, 28 Pa. 261. But if the first case is discontinued, it cannot be reinstated. Walker v. Philadelphia, • 195 Pa. 168, 78 Am. St. Rep. 801, 45 Atl. 657. Nor can the action be made to relate back to another suit for the same personal injuries against another defendant, so as to prevent the running of the statutory period. Peterson, v. Delaware River Ferry Co. 190 Pa. 364, 42 Atl. 955.</p>

Error ts the Common Pleas of Montgomery County to review a judgment for defendants. This was an action of scire facias sur mechanics’ claim by Jacob Bugger against Matthew Cresswell and Deborah M. Cress-•well, his wife, in right of the wife, owner, and Daniel Regester, contractor. The facts of the case will be found in full in the charge of the court below. The plaintiff presented, inter alia, the following points: 1.

This action was brought by James A. Snyder against the Laurel Hill Slate Company before a justice of the peace to recover a balance of $138 alleged to be due on a cutting machine. The justice awarded judgment in favor of the plaintiff and the defendant appealed.

<p>BARTOLET -y.-SAYLOR.</p> <p>Error to the Common Pleas of Schuylkill County to review a judgment in favor of the plaintiff in an action of ejectment, March Term, 1884. No. 220.</p> <p>Ejectment by Mary A. Saylor, against Abraham Bartolet.</p> <p>The facts as they appeared at the trial were as follows:</p> <p>Certain land of Abraham Bartolet was put up for sale by the sheriff in December, 1882. S. Iff. Kaereher attended the sale in the interest of Mary Saylor, who owned the adjoining land, and bid up the land to $3,500, which he testified was the limit which she had fixed. Mr. MeCool, the counsel for the plaintiff in the execution, bid $3,525, and the property was knocked down to him. MeCool agreed with Kaereher to convey the property to Mary Saylor for $100 over what he had to pay for it. This was done, and subsequently this action brought. Bartolet alleged that the agreement was to cease bidding so as to allow the property to be struck down for a sum greatly below its real value.</p> <p>The plaintiff offered evidence as to what the surrounding property was sold for in May, 1883. Admitted under objection. [1]</p> <p>The defendant presented, inter c ' the following points:</p> <p>That under the undisputed evidence in this case the verdict must be for the defendant.</p> <p>Ans. That point we decline to affirm. We submit the matter to you for your determination under the law as we laid it down to you. You will apply the facts, as you find them, to the law and render, your verdict accordingly. On the contrary, if you find that the sale was fair and open, and that there was no fraudulent arrangement between these parties or that even if there were, the property nevertheless brought as high a price as it would have brought, without the fraudulent arrangement, then the plaintiff would be entitled to a verdict at your hands. [8]</p> <p>The court charged, inter alia, as follows:</p> <p>“You will recollect that this sale took place in December, 1882. He (Bartolet) alleges that in May, 1883, Mr. Kaercher told him that they had been obliged to pay, or that they had paid, Mr. McCool, who represented the Courtney judgment, $100, and that this $100 was paid to Mr. McCool for the purpose of preventing him from bidding the property up to $4,500 or $4,700. He swears that he heard Mr. Kaercher say that. This, of course, is the most important testimony, so far as the defendant is concerned, in this case. If you would believe that testimony, that that statement was made by Mr. Kaercher, and also that it represented the actual fact (what actually did take place), that Mr. Kaercher had really made a bargain with Mr. McCool for the purpose of preventing Mr. McCool from running up this property to $4,500, and that that bargain made between him and Mr. McCool was successful in preventing the property from being run up to a greater sum than it otherwise would have brought, then it becomes important testimony for you to consider as to whether these were not such unfair means for the purpose of securing the purchase of this property.” [2]</p> <p>“On the other hand, you have the testimony on the part of the plaintiff in this case, not only as to that conversation, but as to what actually did take place at the time of the sheriff’s sale. You have the testimony of Mr. McCool, the testimony of Mr. Kaercher, and the testimony of Mr. Frank Saylor. That testimony in the main agrees. And we say to you, if you believe the testimony of Mr. McCool, or if you believe the testimony of Mr. Kaercher as to what took place at that time, then there were no fraudulent means used for the purpose of obtaining the possession of this property, or for the purpose of preventing it from bringing a greater price.” [3]</p> <p>“Is there anything shown here a.t all that anybody else would have bid up this property higher than that? It may be true that Mr. McCool might have heen willing to bid the property up to $3,600, but is there any evidence here h> show that he was prevented from bidding the property up to $3,600 by an arrangement Kaercher made with him? Not at all. Mr. Kaercher’s arrangement with Mr. McOool certainly did not prevent Mr. McOool from bidding up the property to $3,600. On the contrary it would have been an inducement to Mr. McOool to have bid it up to $3,600 if there had been any other bidding, because Mr. McOool would then have had some assurance that if the property was knocked off to him he could have sold it to somebody else. Therefore, so far as that arrangement was concerned between them, instead of having the effect of preventing McOool from bidding it up to $3,600, if there had been any other persons to bid.” [4]</p> <p>“What was the effect of this arrangement made by Mr. Kaercher and Mr. McOool ? If you find under the evidence in this case that Mr. Kaercher had bid up to $3,500, and that that was the extent to which he was authorized to bid, and that is testified to by him and testified to by Mr. Saylor, that that was the extent of his authority to bid, then, of course, when he got to $3,500, and he announced the fact that he did not intend bidding any farther, that he was off, he would have been justified in going to a person who was a bidder and saying: 'If you purchase this property will you give me the first chance to buy it from you?’ The party replied: Wes, I will for a consideration.’ If that was the arrangement between them it was not fraudulent. It was perfectly legitimate if you find such to be the state of facts between these parties. It does not make any difference whether that arrangement was made between them before the property was knocked off, for the reason that it does not affect the bidding on the property, it does not affect the sheriff’s sale. The party who makes the offer has gone to his limit, does not intend to bid any more and is not prevented thereby from going on and purchasing the property. Instead of that it is an additional inducement to go on and secure the purchase of the property, because then he has some assurance that he would be able to sell it again at an advance. If you find that to be the state of facts under the evidence in the case, then there is nothing here to show a fraudulent arrangement so far as the purchase of this property is concerned. Even if there were a fraudulent arrangement, is there anything to show that the property brought a less price than it otherwise would have brought if the sale had been a perfectly fair sale? These are facts for you to take into consideration in determining this case. You see that the defendant Bartolet’s case rests, as I have said to you, upon his statement as to what he heard Kearcher say. The case, on the part of the plaintiff, rests upon the testimony of Mr. McCool, upon the testimony of Mr. Kaercher, and upon the testimony of Mr. Saylor. We say to you, if you find the facts to be as McCool and Kearcher state, and they state exactly what the arrangement was, then we think the plaintiff is entitled to a verdict at your hands for the property in dispute.” [5]</p> <p>Verdict and judgment for plaintiff, whereupon defendant took this writ, specifying as error, inter alia,: (1) The admission of evidence as to thé price of surrounding property in May, 1883; (8) the refusal of defendant’s point; and (2-5) the portions of the charge above set out, as indicated by numerals.</p> <p>The fact as to what one man may have sold or received for his property is certainly collateral to an issue involving what another should receive, and, if in no way connected with it, proves nothing. East Pennsylvania B. Co. v. Hiester, 40 Pa. 53; East Pennsylvania B. Co. v. Hottenstine, 47 Pa. 28; Hays v. Briggs, 74 Pa. 373; Pittsburgh & W. B. Co. v. Patterson, 107 Pa. 461.</p> <p>In Birney’s Appeal, 114 Pa. 519, 7 Atl. 150, the co-urt said: The obvious effect of the notice at the sale was to mislead or deter bidders. In the absence of explanation it is not unreasonable to infer that D’s purpose was to secure the property below value and then claim greater part of the proceeds under his lien. To sanction such a transaction, D making no explanation of his conduct, would be to encourage the practice of trickery, deception, and fraud, of which there is already too much in judicial sales.</p> <p>An agreement by a bidder at sherif, sale of real estate to pay the judgment of another, if the latter would not bid, is fraudulent as to the creditor, is against public policy as well as good morals, and therefore void. Slingluff v. Eckel, 24 Pa. 472; 1 Story Eq. 293; Jones v. Caswell, 3 Johns. Cas. 29, 2 Am, Dec. 134; Thompson v. Davies, 13 Johns. 112.</p> <p>If parties agree together to buy in property at sheriff’s sale, and by that means depfess the price, it is a fraud which avoids the sale. Smull v. Jones, 1 Watts & S. 128; Jackson v. Summerville, 13 Pa. 359; Hogg v. Wilkins, 1 Grant, Cas. 68; Seylar v. Carson, 69 Pa. 81; Cocks v. Izard, 7 Wall. 559, 19 L. ed. 275.</p> <p>An agreement between persons having separate and distinct interests not to bid against each other at a sheriff’s sale, but to divide the profits of the purchase, is against public policy, and is a fraud upon other persons interested in the sale. Hawley v. Cramer, 4 Cow. 717; Herman, Executions, 346.</p> <p>The law has regulated sales on execution with a jealous care, and provided a course of proceeding likely to promote a fair competition. A combination to promote such competition is contrary to morality and sound policy. It operates as a fraud upon the debtor and his remaining creditors, by depriving the former of the opportunity of obtaining a full equivalent for the property which is devoted to the payment of his debts, and opens a door for oppressive speculations. Jones v. Caswell, 3 Johns. Cas. 29, 2 Am. Dec. 134; Troup v. Wood, 4 Johns. Oh. 254.</p> <p>Where a vendee is guilty of actual fraud in procuring a title to land no title passes to him whether the sale be private or judicial; and the former owner of the land may recover the same in ejectment without offering to refund to the purchaser the' money which he paid to the sheriff. Gilbert v. Hoffman, 2 Watts, 66, 26 Am, Dee. 103; MeCaskey v. Graff, 23 Pa. 321, 62 Am. Dec. 336.</p> <p>So it will be a void sale if the purchaser prevails on the persons attending the sale to desist from bidding, by reason of suggestions or by way of appeal to the sympathies of the company. 2 Kent. Com. § 539; Fuller v. Abrahams, 6 J. B. Moore, 316, 3 Brod. & B. 116; Yeazie v. Williams, 3 Story, 623, Fed. Cas. No. 16,907; Miller’s Appeal, 30 Pa. 478; Bowers v. Bowers, 26 Pa. 74, 67 Am. Dec. 398; Pennock’s Appeal, 14 Pa. 446, 53 Am. Dec. 561.</p> <p>Such sales are not merely voidable, but void, and are incapable of confirmation without a new consideration. Miller’s Appeal, 30 Pa. 478.</p> <p>Where two or more persons are parties to a fraudulent act the declarations of each, in relation to it, in the absence of the other, are admissible. Jackson v. Summerville, 13 Pa. 359; MeCaskey v., Graff, 23 Pa. 321, 62 Am. Dec. 336.</p> <p>Actual collusion or fraud in fact is a question exclusively for the jury. Avery v. Street, 6 Watts, 217; Loucheim Bros. v. Henszey, 77 Pa. 305; Eiegel v. Wooley, 81* Pa. 227.</p> <p>The opinion of a judge on a matter of fact is not the subject of a writ of error. Sampson v. Sampson, é Serg. & E. 329; Long v. Eamsay, 1 Serg. & E. 72; Eenn v. Pennsylvania Hospital, 2 Serg. & E. Ill; Eiddle v. Murphy, 7 Serg. & E. 237; Graham v. Smith, 25 Pa. 323; Evans v. Maury, 112 Pa. 312, 3 Atl. 850; Barton v. Plunter, 101 Pa. 111.</p> <p>The law presumes that a public judicial sale is made in good faith; and this presumption stands, unless overthrown by clear and satisfactory evidence of fraud or unfair means. Eurbush v. Greene, 108 Pa. 506; Brubaker v. Okeson, 36 Pa. 519.</p> <p>Even if there had been a fraud at the sheriff’s sale and the purchaser had not been a party to it, his vendee would have taken a good title, although the latter had notice or knowledge of the fraud. Stewart v. Beed, 91 Pa. 287.</p>

Seibert, the defendant below, made a parol contract with Householder to do the carpenter work on five houses for a certain price. Householder, not having been paid all that he claimed was due him for the work, brought this action for the balance, and testified that the work was done under a parol contract fixing the price at $84 each for four of the houses and $175 for the fifth, making $511 in all.

<p>Where an executor has been surcharged, in the orphans’ court and taken an appeal to the supreme court, which has reduced the amount of the surcharge but still found a large balance against him, and he has made no proper tender of this balance to the legatees, he is liable for interest on the balance from the date of the decree of the orphans’ court to the date of the decision of the supreme court.</p>

1 of Allegheny County dismissing a bill of complaint against the Western Pennsylvania Exposition Society, and the city of Pittsburgh. The facts of the case are given in the following report of the master, Jas.

4 of Philadelphia County to review a judgment on a verdict for the defendant in an action of covenant. This was an action by Cyrus Oadwallader against William Brodie upon a lease under seal made between the plaintiff and defendant, dated March 1Y, 18Yl, for the cellar and store room of premises No. 915 Oxford street, in Philadelphia, for the term of one year, from March 20, 18Y1, at a yearly rent of $360 per annum, and claim for ten months’ rent.

1 of Philadelphia County to review a judgment on a verdict for the plaintiff in an action of assumpsit. This was an action by Joseph Eenshaw against Eollins M. Braithwait and Nicholas Petry, late trading as E. M. Braithwait & Company. The defendant referred to throughout the case, and who testified at thé trial, is the defendant Braithwait. The facts as they appeared at the trial before Biddle, J., are stated in the opinion. The defendants submitted the following points: 1.

<p>In an action by a locomotive engineer against a railroad company, for personal injuries due to a collision, it appeared that the accident occurred at H station, where a double-track road ended and a single-track extension began. About a mile south of H on the double-track road there was a crossover switch running from the north-bound to the south-bound track. Plaintiff was engineer of passenger train No. 10 going north. In clear weather it was customary, when there were freight trains detained on the north-bound track between the switch and the station, for signals to be given by whistles from the forward engine at H to the rear engine near the switch, and if the south-bound track was clear, No. 10 would move on to it, pass by the freight trains and proceed on its way on the single-track extension. In foggy weather the forward engine near H would act as a pilot engine, running down on the south-bound track to the switch, while the conductor of the forward freight train would remain at H to signal any train coming south on the single-track extension. When the pilot engine passed beyond the switch, No. 10 would move on to the south-bound track. The morning when the accident occurred was extremely foggy. Engine No. 287 going north was stopped at H and behind it several coal trains. The operator at H telegraphed this to the dispatcher who replied that “No. 287 should arrange to get No. 10 around.” No. 287 was accordingly run on to the south-bound track and moved down towards the oross-over switch. In the meantime No. 10 had arrived at the switch and slowed up. The conductor of the rear coal train, who was at the switch, signaled No. 10 to come on. Plaintiff accordingly ran No. 10 on to the south-bound track and increased his speed to 15 or 20 miles an hour in spite of the fog. Immediately afterwards his train collided with No. 287 and he was severely injured. The rules of the company prohibited running on the south-bound track and also required proper signals to be sent forward in case of detention. Held, that there was no error in entering a compulsory nonsuit.</p> <p>Note. — See the following editorial notes containing a full presentation of the authorities: Contributory negligence in entering or remaining in an employment, note to Limberg v. Glenwood Number Co. 49 N. B. A. 33; reliance upon orders as affecting contributory negligence of employee, note to Orman v. Mannix, 17 N. B. A. 602; contributory negligence as defense where injuries received in performance of duties outside original contract, note to Olsen v. Minneapolis & St. N. B. Co. 48 N. B. A. 806; disobedience of master’s rules as constituting contributory negligence, note to Ford v. Chicago, B. I. & P. B. Co. 24 N. B. A. 657; relation of maxim volenti non fit injuria to defense of contributory negligence, note to O’Maley v. South Boston Gaslight Co. 47 N. B. A. 161.</p>