Volume 80 — Pennsylvania State Reports

<p>Error to the District Court of Allegheny county: Of October and November Term 1874, No. 177.</p> <p>This was an action of debt, brought January 30th 1873, by The Travellers Insurance Company of Hartford, Connecticut, against Robert Thorne, John Heath and Andrew E. Baum.</p> <p>The plaintiffs were a life and accident insurance company, incorporated by the state of Connecticut; the suit was for the breach of the condition of a bond of defendants to plaintiffs, dated July 25th 1870, in the penal sum of $5000. The bond recited that Thorne had been appointed agent of the company for the western part of Pennsylvania, during the pleasure of the officers of the company, and that as such agent he would receive divers sums of money, chattels and other effects of the company, and would be bound to keep accurate accounts of such property and of his receipts and disbursements, and to deliver, account and pay over the same when demanded and directed, according to the instructions of the officers of the company.</p> <p>The condition was that Thorne should promptly pay to the company the amounts received from timo to time, either as premiums collected or advances made by the company for any purpose, and should perform all the duties as agent of the company, as directed according to their charter, by-laws, rules and regulations then existing or which might be adopted by the company during the time he should officiate as agent, and should deliver all the property which he might receive and hold as agent, to his successor or to such other person as the company or its authorized officers might direct.</p> <p>The plaintiffs’ affidavit of claim was that the defendants were indebted to them in the sum of $3877.21, the amount due for premiums and interest on policies issued by Thorne, as agent of plaintiffs, as stated in an annexed bill of particulars of the premiums and interest; with'the names of the insured, and the number of the policies, which plaintiffs claimed to recover by virtue of the above-mentioned bond, &c.</p> <p>The statement contained a great number of items of charges and also items of credit for commissions, showing the balance due from Thorne to be $3877.21, as set out in the affidavit.</p> <p>The affidavit of defence was:—</p> <p>1. That Thorne had not been appointed agent, in the form required by the laws of Pennsylvania relating to foreign insurance companies, and never acted for plaintiffs as their legally authorized agent.</p> <p>2. That before and at the time the persons named in the specifications were insured, the plaintiffs had not complied with the provisions of the several Acts of Assembly relating to foreign insurance companies, and did not appoint agents according to the laws of the Commonwealth.</p> <p>3. That Thorne did not receive the sums of money mentioned in the plaintiffs’ specification and not any part as the legally authorized agent of plaintiffs.</p> <p>4. Defendants “ deny each and every item contained in said specification, and say they do not owe the plaintiffs the sum or any part thereof.”</p> <p>5. That the conditions of the bond were fully complied with by Thorne; that all moneys received by him for the plaintiffs, after the date of the bond, were paid to them, after such deduction as Thorne was entitled to; that the defendants could not be more specific on this point because the specification did not give the numbers nor dates of the policies on which the items were alleged to have been received by Thorne.</p> <p>The Act of April 11th 1868, Pamph. L. 831, 1 Br. Purd. 796 et seq., consolidating, &c., the laws of Pennsylvania in relation to foreign insurance companies, provides :—</p> <p>Sect. 2. That any such * * * company, * * * desiring to transact business in this state, shall first appoint an agent or attorney resident in this state, on whom process can be served, and file in the office of the auditor-general * * * a certified copy of resolution of the board of directors, * * * appointing such attorney or agent, which appointment shall continue until another agent or attorney be substituted, and also a certified copy of the charter or other authority under which said company or association is organized. * * *</p> <p>Sect. 5. That every such * * * company * * * shall, before issuing or agreeing to issue any policy, or transacting any business whatever in this Commonwealth, forward to the auditor-general the statement required by this act, together with a written application for a license to transact their said business in this state, signed by the agent appointed by such company; and the said agent shall file a bond in five thousand dollars, with two sureties, residents of the county in which the principal business office of said agent is to be established, which shall be approved by the district attorney of said county, conditioned for the faithful discharge of all the duties enjoined upon him by the provisions of this act, and for the payment of all moneys received by him, or payable by him for the use of the Commonwealth; which bond shall be acknowledged * * * and recorded in the office of the recorder of deeds of said county and deposited in the office of the auditor-general, and certified copies thereof, under the seal of the recorder, shall be as good evidence as the original would be in any action brought against such agent or his sureties on such bond.</p> <p>Sect. 9. That the auditor-general shall have power to revoke and annul any license issued by him under the provisions of this act, when he shall be satisfied that the assets of said company or association have become impaired to the extent of more than thirty per centum thereof, or in case he shall ascertain that said license was originally obtained by fraud or misstatement, or for the misconduct of any agent. * * *</p> <p>Sect. 10. That every agent shall have full power and authority to transact business for the company for which he is licensed in each and every county of this Commonwealth, either in person or by any subordinate agent * * * acting under his authority and direction, and he shall be immediately responsible to the Commonwealth for the tax on all premiums received in the state, whether the same are received by him directly or through his subordinate agents; and the said agent may from time to time appoint as many subordinate agents as he may deem proper, and certify the names and residences of the same to the auditor-general, who thereupon shall issue to each of said subordinate agents, upon payment of the usual fee of his office, a certificate showing that the company has complied with the requirements of this act, and that the agent thereof has full power and authority to transact business in any part of this Commonwealth, and that he has designated such person as his subordinate agent; and no person shall act as a subordinate agent until he has received such certificate.</p> <p>Sect. 12. That any person receiving premiums or forwarding applications, or in any other way transacting business for any insurance company not incorporated by this state, without having received authority so to act for such company, agreeably to the provisions of this act, or in any other way violating the provisions of the same, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined five hundred dollars for each of-fence; * * * and any party doing business by receiving applications or forwarding policies to any person not duly authorized to act as agent, shall be fined in a like sum of five hundred dollars for each offence, and be prohibited from doing business in this state until such fine be fully paid.</p> <p>Sect. 13. For the better enforcement of the provisions of this ■act, it shall be the duty of the district attorneys, in any of the counties of this Commonwealth, to enforce the provisions and requirements of the same, for which each and every district attorney is hereby ¡empowered, * * * once in each and every year, to examine any license agent or agents transacting or carrying on business in -the .county for which said district attorney is elected, to examine the books of all such agencies, so as to satisfy himself that such agent or agents have fulfilled the provisions and requirements of this act, and paid all taxes due the Commonwealth, and make report thereof once in each and every year to the auditor-general; * * * and it shall be the duty of the said district attorneys to enforce this act and its penalties against any such agents, persons, companies or associations as aforesaid, by suit or suits at law, in the name of the Commonwealth. * * *</p> <p>The case was tried, April 30th 1874, before White, J.</p> <p>1. Under objection and exception, the plaintiffs read the account appended to their affidavit of claim.</p> <p>2. They then, under objection and exception, gave in evidence three certificates of the auditor-general, each dated January 28th 1871, viz.:—</p> <p>“ Whereas, the Travellers Insurance Company, located at Hartford, in the state of Connecticut, appointed and constituted William W. Allen their agent and complied with all the requirements of an Act, * * * approved the llt-h day of April 1868. And whereas, license was granted to said agent, in conformity with the act aforesaid, empowering him to transact business for and in behalf of said company in each and every county of this Commonwealth, for and during the period from January 1st to December 31st 1869. And whereas, said agent has certified to me the appointment of Robert Thorne, of Pittsburg, as subordinate agent of said company:</p> <p>“ Now, therefore, I, John F. Hartranft, Auditor-General of the state of Pennsylvania, in accordance with the requirements of Act aforesaid, do hereby certify that Robert Thorne was duly appointed and authorized by the said William W. Allen, to transact business as the subordinate agent of the said company for and during the term for which the aforesaid agent was licensed.”</p> <p>The other certificates were precisely similar, except that they certified the appointment of Allen and Thorne as agents for-the years 1870 and 1871, respectively.</p> <p>The plaintiffs then proved that papers produced were the monthly reports of Thorne made to the home office of plaintiffs, and that the reports of the life department were made up at the home office and sent to the agent for the purpose of having him send on the money.</p> <p>3. They then offered severally the monthly accounts of the life department for the months of June, July and August 1870, and the monthly accounts of the accident department for the month of September 1870, and previous months.</p> <p>The defendants objected to each offer; the offers were admitted, and several bills of exception sealed.</p> <p>The accounts of the life department showed a balance of §1260.32 due by Thorne; the accounts of the accident department, a balance of §1438.81 due by him.</p> <p>The plaintiffs then rested.</p> <p>4. The defendants called Thorne, and offered to prove by him and other witnesses that he never received from the plaintiffs, or from the auditor-general of the state of Pennsylvania, any appointment or license to act as agent for plaintiffs, and never received any notification that he had been appointed as agent for the said plaintiffs, for the purpose of showing that the plaintiffs had not complied with the law of this state prior to or at the date of the bond in suit.</p> <p>The offer was rejected, and a bill of exceptions sealed.</p> <p>5. Defendants then proposed to prove that plaintiffs did not comply with the requirements of the Act of April 11th 1868, prior or subsequent to the date of the bond in suit;, and that Thorne, the alleged agent of plaintiffs, was not authorized or licensed by the auditor-general of the state of Pennsylvania to act as subordinate agent of plaintiffs, and that he never received from the auditor-general the certificate prescribed by the Act of 11th April 1868.</p> <p>This was objected to by the plaintiffs.</p> <p>The court permitted the defendants to show that Thorne never received- a certificate from the auditor-general, rejected the remainder of the offer and sealed a bill of exceptions.</p> <p>Thorne then testified that he never received from the auditor-general any certificate of his appointment as subordinate agent or license as such.</p> <p>6. Defendants then proposed to prove that Thorne never knew that there was any certificate or authority issued to him as subordinate agent of said plaintiffs until alleged by plaintiffs on this - trial, to show that he never was lawfully authorized as agent of plaintiffs.</p> <p>This was objected to by plaintiffs, rejected by the court and a bill of -exceptions sealed.</p> <p>7. The defendants then offered to prove that he never received a certificate from the auditor-general to act as agent for the plaintiffs ; that being threatened with prosecution for violation of law, on or about April 15th 1871, he examined the records of the auditor-general’s office: that at that time the record or papers on file of the plaintiffs did not contain the names of any subordinate agents in the state, nor anything to show that the plaintiffs had any agents in this state; that after the plaintiffs gave in evidence the certificates of the auditor-general that the said plaintiffs had complied with the law, and appointed Thorne subordinate agent, he went to Harrisburg, and on Saturday last searched and caused to be searched the records of the insurance department, which, by virtue of the law. of 1873, is now the custodian and has charge of the records, books and papers of the auditor-general’s office, in relation to and touching all insurance business; that he found in said department two papers containing a large number of names, which papers purported to be lists of subordinate agents appointed by the said Travellers Insurance Company for the years of 1869 and 1870; that said papers'purported to be made out and sworn on the 21st day of April 1871; that he had examined the papers of .this company, on file in the auditor-general’s office, on or about the 15th day of April 1871, and found no such papers as now appear in the office of the aforesaid insurance department, in relation to the appointment of subordinate agents.</p> <p>The offer was objected to by plaintiffs, rejected by the court and a bill of exceptions sealed.</p> <p>The defendants then gave in evidence the following papers:—</p> <p>“List of agents who held the appointments of the ‘Travellers Insurance Company,’ to transact the business within the Commonwealth of Pennsylvania during the year 1869:—</p> <p>William W. Allen, .... Philadelphia;</p> <p>* * * * * * *</p> <p>Robert Thorne, ... . . . Pittsburg.</p> <p>* * * * * * *</p> <p>“I hereby certify the foregoing to be a true, complete and correct list of all agents appointed to transact business for the Travellers Insurance Company, within the Commonwealth of Pennsylvania, during the year 1869, according to the best of my knowledge and belief.</p> <p>Wm. W. Allen, General Agent and Att’y.</p> <p>Philadelphia, Pa., April 21st 1871.”</p> <p>“Insurance Department of Pennsylvania,</p> <p>Harrisburg, May 2d 1874.</p> <p>“ I hereby certify that I am Insurance Commissioner of Pennsylvania, appointed and commissioned in pursuance of an Act entitled ‘ An Act to establish an Insurance Department,’ approved the 4th day of April, A. D. 1873, and that in accordance with the requirements of said act, the books, papers and records in the office of the Auditor-General, relating to the business of insurance, have been transferred to this department and are now in my charge and custody, and that the foregoing is a correct copy of a paper found among the records aforesaid and endorsed ‘ List of Agents of the Travellers Insurance Company, in the state of Pennsylvania, 1869.’</p> <p>“In testimony whereof, I have hereunto set-my hand and caused my official seal to be affixed the day and year aforesaid.</p> <p>J. M. Forster, Insurance Commissioner.”</p> <p>“List.of agents who held the appointments of the Travellers Insurance Company to transact its business within the Commonwealth of Pennsylvania, during the year 1870</p> <p>William W. Allen,</p> <p>Philadelphia;</p> <p>Robert Thorne, * *</p> <p>Pittsburg.” * *</p> <p>Attached to this paper is a certificate of W. W. Allen ; also a certificate of J. M. Forster, Insurance Commissioner, precisely like those to the previous list, except that the agents are stated to be for the year 1870.</p> <p>8. Defendants then proposed to prove that on or about the 15th day of April 1871, plaintiffs, by their secretary, Rodney Dennis, stated, that prior to that date the company had not complied with the Act of 11th April 1868; but that the company could make out the papers so that it would appear in the auditor-general’s office that the company had complied with the law; that at that date the lists of agents sent to the auditor-general’s office for the years 1869 and 1870, and contained in certified copies in evidence, were not made out and filed in said office.</p> <p>This for the purpose of proving the company had not complied with the law, and had not the right to do business in this state.</p> <p>This was objected to by plaintiffs, rejected by the court and a bill of exceptions sealed.</p> <p>Defendants then gave in evidence an agreement, dated August 13th 1866, between the plaintiffs and Thorne, appointing him their agent.</p> <p>The agreement stipulated that the plaintiffs should provide a suitable office in Pittsburg, pay certain expenses, &c.; Thorne to devote his entire time to the interests of the company in soliciting business, circulating its literature, &c., and performing such acts as came within the scope of a faithful soliciting and supervising agent; and providing for his compensation.</p> <p>The territory over which Thorne was to exercise supervision comprised twenty-three counties in Western Pennsylvania.</p> <p>Appended to the agreement was a writing signed by Thorne, and dated September 19th 1870, releasing to other agents his supervision of eleven of the twenty-three counties.</p> <p>Thorne testified that he commenced in 1866 doing business for the plaintiffs under the agreement; that in January and September 1870, he had borrowed from the plaintiffs, by an agreement with their secretary, the money which had been received by him for premiums and which was then in his hands, the loan being about $2500; he prepared his account with the company, found the balance in his hands and retained it according to the agreement; all the money in the account was received prior to July 25th 1870, except an item of $137.30, received August 6th 1870. He settled with the secretary on the 5th of November 1870, being on the accident department, for all the money received by him beyond the loan and paid him $120, the balance then due the plaintiffs ; that closed his business with the plaintiffs. This included all that the secretary claimed of him, except what was embraced in the loan. He had appointed twenty-five or thirty agents under him ; he did business by sub-agents; sometimes hired them without consulting the company ; sometimes notified the secretary of their appointment ; he sent some of their commissions to witness; sometimes sent them directly to the agents; witness’ relation as agent was dissolved November 5th 1870. He gave other testimony for the purpose of showing that he was not indebted to the plaintiffs and generally to show that there was no liability of defendants on the bond.</p> <p>The defendants rested.</p> <p>The plaintiffs, in rebuttal, gave in evidence the license of the auditor-general to the plaintiffs, dated January 1st 1870, viz. :—</p> <p>“ Whereas, the Travellers Insurance Company of Hartford, Connecticut, have appointed William W. Allen their attorney, resident of this Commonwealth, on whom process of law can and may be served, and have, in all other respects, complied with the provisions of the Act, * * * approved the 11th day of April, A. D. 1868. And whereas, the said William W. Allen has applied in writing to the auditor-general of this state, for a license to transact business as the agent of the said company, in each and every county of this Commonwealth, and has complied with the provisions of the act aforesaid.</p> <p>“I, therefore, by virtue 'of the authority vested in me by the act aforesaid, grant a license to the said Travellers Insurance Company, to carry on their business, by their agent aforesaid, in each and every county of this Commonwealth, for the period of one year from the date hereof.”</p> <p>R. Dennis, secretary of plaintiffs, testified that he had not agreed to lend Thorne the money in his hands due to the company. He further testified as to the state of the accounts between Thorne and plaintiffs, and in contradiction of Thorne’s testimony.</p> <p>There was testimony from other witnesses to the same effect.</p> <p>The evidence then closed on both sides.</p> <p>The following are points of the defendants and the answers :—</p> <p>3. The three papers purporting to be certificates signed by the auditor-general, and dated June 28th 1871, are incompetent and insufficient evidence to prove that the plaintiff complied with the said Act of 11th April 1868, and there being no other evidence of this fact, the plaintiff cannot recover.</p> <p>Answer: “ Refused, because there is other evidence before the</p> <p>4. It was unlawful for the plaintiff to transact insurance business in this state by subordinate agents, not appointed and authorized agreeably to the provisions of the 10th sect, of said act; if Dr. Thorne was not appointed a subordinate agent in the mode therein prescribed when the plaintiff obtained the bond sued on, the bond is void and the plaintiff cannot recover.</p> <p>Answer: “ Refused. The bond of an agent may be given . before, and in contemplation of his regular appointment.”</p> <p>5. There is no competent or sufficient evidence in the cause, that Ur. Thorne was ever appointed in the mode prescribed in the 10th sect, of said act, and no evidence that he ever received from the auditor-general the certificate of appointment required by the 10th sect, of said act. Therefore the plaintiff is not entitled to recover in this suit.</p> <p>Answer: “ Refused. There is sufficient evidence to show that he was duly appointed a subordinate agent by the insurance company. His failure to take out a license from the auditor-general is not sufficient defence in this action.”</p> <p>6. If the jury believe the uncontradicted testimony of Dr. Thorne, that he never received from the auditor-general a certificate of his appointment or authority to act as a subordinate agent of plaintiff, in pursuance of the 10th sect, of the Act of 11th of April 1868, and had no such certificate or authority when he executed the bond in the suit, the bond is void and the plaintiff cannot recover.</p> <p>7. The certified copies of the list of subordinate agents for 1869 and 1870, filed by plaintiff in the auditor-general’s office, on the 21st of April 1871, given in evidence by defendants, taken in connection with the uncontradicted evidence of Dr. Thorne, that he never received a certificate of appointment or other authority from the auditor-general, is conclusive evidence that he was not authorized to act as subordinate agent in the mode prescribed by law; and if the jury believe this evidence he was not lawfully authorized at the date of the bond sued on ; and the bond is therefore void and the plaintiff cannot sustain this action.</p> <p>16. It was unlawful for the plaintiff to do business in this state by subordinate agents, without first having such agents appointed in the mode prescribed by the 10th sect, of the Act of April 11th 1868. It was plaintiffs’ duty, under this law, to see that Dr. Thorne was so appointed; and if the bond in suit was taken when Thorne had not the proper authority from the auditor-general, the bond is void, and plaintiffs cannot recover, although the company had complied with the requirements of the aforesaid act in all other respects.</p> <p>17. The three papers purporting to be certificates of the auditor-general, dated June 28th 1871, the certified copies of the lists of agents, sworn to 21st April 1871, together with the testimony of Dr. Thorne, show that Thorne had no lawful authority to act as subordinate agent when the bond in suit was executed. The bond is therefore void, and the plaintiffs cannot recover.</p> <p>The 6th, 7th, 16th and 17th points were refused without qualification.</p> <p>The court charged:—</p> <p>* * * “ It is contended, that, as the plaintiffs are a foreign insurance company, and have not complied with the provisions of the Act of Assembly of 11th April 1868, they could not legally do any business in this state, and can maintain no action relating to, or arising out of, their insurance business in the state. [But the plaintiffs have given in evidence the license issued by the auditor-general of the state, under the seal of his office, dated January 1st 1870, reciting that the plaintiffs have complied with the requirements of that act, and are duly authorized and licensed to do business in the state for the year 1870. That license, I instruct you, is conclusive evidence that the plaintiffs had a right to do business as an insurance company in this state during the year 1870.]</p> <p>[“ But the defendants further contend that Dr. Thorne never received from the auditor-general a license to act as subordinate agent for the year 1870, and he testifies that he never had such a license. The plaintiffs, however, have put in evidence the certificate of the auditor-general under the seal of his office, dated June 28th 1871, reciting that he was duly appointed and authorized to act as a subordinate agent for the year 1870. From these official documents, it would seem that the company had complied with all the requirements of the law, in reference to his appointment as a subordinate agent. He acted as such agent, in that capacity did business for the company, and received the money they now seek to recover from-him. As such agent, he gave the bond in suit, reciting that he was their agent, and he and his bail signed that bond. One condition of the bond was that he ‘shall well and truly perform all and singular the duties as agent of said company, as directed, according to the provisions of the charter, by-laws and regulations of said company.’ One of his duties as agent was to take out his license from the auditor-general. If he failed to do so, it was not the fault of the company, but his own neglect of duty. After receiving the money on the faith of his agency and on the faith of that bond, neither he nor his • sureties can resist payment of it, simply because he had neglected to take out his license. I therefore say to you that this is not sufficient ground of defence in this action.”] * * *</p> <p>The verdict was for the plaintiffs for $1874.08.</p> <p>The defendants took a writ of error, and assigned, amongst others, the following errors:—</p> <p>1. Admitting the evidence mentioned in the first bill of exceptions.</p> <p>2. Admitting the evidence mentioned in the second bill of exceptions.</p> <p>3. Admitting the evidence mentioned in the third bill of exceptions.</p> <p>4. Rejecting the offer mentioned in the fourth bill of exceptions.</p> <p>5. Rejecting the offer mentioned in the fifth bill of exceptions.</p> <p>6. Rejecting the offer mentioned in the sixth bill of exceptions.</p> <p>7. Rejecting the offer mentioned in the seventh bill of exceptions.</p> <p>8. Rejecting the offer mentioned in the eighth bill of exceptions.</p> <p>10, 11, 12, 13, 14, 18,19. The answers to the defendants’ 3d,</p> <p>4th, 5th, 6th, 7th, 16th arid 17th points.</p> <p>21, 22. The parts of the charge in brackets.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1875, No. 251.</p> <p>This was an action of assumpsit, brought to the September Term 1872 of the court below, by The Pittsburg, Virginia and Charleston Railway Company, against George W. Cass, to recover the amount of the following subscription, and the penalty of one per cent, per month for non-payment of instalments as called for.</p> <p>“We, the undersigned, hereby severally subscribe to the capital stock of the Pittsburg, Virginia and Charleston Railway Company, and promise to pay to the treasurer of said company the several sums set opposite our respective names; Provided, and on condition that in the judgment of the board of directors of said company a sufficient amount is subscribed to the capital stock of said company on or before the 1st day of April 1871, to grade and bridge the'road, including right of way, from South Pittsburg to West Brownsville, otherwise these subscriptions shall be void and of no effect.</p> <p>“ Name. ' No. of shares. Amount.</p> <p>George W. Cass, 400 $20,000”</p> <p>The distance mentioned in the subscription is about 56 miles.</p> <p>The plaintiffs were incorporated under the Act of April 8th 1867 (Pamph. L. 1867) and its supplements, subject to the provisions of the General Railroad Law of February 19th 1849 (Pamph. L. 79). The 8th section of the law of 1849 (2 Br. Purd. 1216, pl. 25,) provides:—</p> <p>“The capital stock of such company shall be divided into shares of fifty dollars each, and shall be called in and paid at such times and places, and in such proportions and instalments, not, however, exceeding five dollars per share, in any period of thirty days, as the directors shall require, of which public notice shall be given for at least two weeks next preceding the time or times appointed for that purpose, in the manner above mentioned; and if any stockholder shall neglect to pay any such proportion or instalment so called for at the time and place appointed, he, she or they shall be liable to pay in addition to the proportion or instalments so called for, at the rate of one per cent, per month for the delay of such payment.”</p> <p>The case was tried, Deoember 18th 1873, before Collier, J.</p> <p>The plaintiffs gave the subscription in evidence, and the following preamble and resolutions, passed by the board of directors on the 1st of April 1871:—</p> <p>“ Whereas, certain subscriptions to the capital stock of this company have been made on condition that, in the judgment of the board of directors of said company, a sufficient amount is subscribed to the capital stock of said company, on or before the 1st day of April 1871, to grade and bridge the road, including the right of way from South Pittsburg to West Brownsville; therefore be it</p> <p>“Resolved, That in the judgment of this board the conditions named are fully complied with; that sufficient stock has been subscribed to grade and bridge the road, including the right of way from South Pittsburg to West Brownsville.”</p> <p>They gave evidence also that at the meeting of the directors the question whether there was sufficient stock subscribed to go on, in accordance with the subscription, was discussed and considered, and that the same question had been “talked over” by the directors before the meeting.</p> <p>They then gave evidence that calls were made for instalmentsevery month; that ten notices of the calls were sent to the defendant, and that he.had not paid any.</p> <p>They then gave in evidence the following letter:—</p> <p>“ Pittsburg, June 14th 1871.</p> <p>“ J. R. Jacques, Esq., Sec’y Pittsburg, Va. and Charleston Railroad Co.</p> <p>“ Sir — I received this morning your notice of the 29th May, (date) of a second instalment (I have received no notice of a first instalment) of $5 per share on 400 shares of the capital stock of the Pittsburg, Va. and Charleston R. R. Co., formerly, now Valley R. R.</p> <p>a I am not aware of being a stockholder or having subscribed to the stock of this corporation, and therefore your notice to me is in error. Truly yours, Gr. W. Cass.”</p> <p>The defendant gave evidence for the purpose of showing that the cost of doing the work, &c., contemplated in the subscription was, at the time of the passage of the resolution by the directors, far in excess of the amount subscribed.</p> <p>■ He gave evidence also that he had no notice of the meeting of the directors on the 1st of April 1871, and was not present at it.</p> <p>He also made the following offers of evidence, all which were objected to by plaintiffs, rejected by the court, and several bills of exception sealed:—</p> <p>1. To prove the cost of grading and bridging, including right of way, of that portion of the plaintiffs’ road already completed, to wit: the thirty miles of road between South Pittsburg and Monongahela City, and that the cost thereof was largely in excess of the amount of subscriptions to the capital stock of the company on the 1st of April 1871; and that to provide means to complete the same, the plaintiff executed a mortgage on its road, property and franchises for some $700,000, and negotiated the same.</p> <p>2. To prove that the plaintiffs’ road (as located on April 1st 1871), beginning in South Pittsburg, passed through that borough and the adjoining boroughs of Birmingham and East Birmingham, taking much valuable private property therein ; and that the cost of right of way through those three boroughs alone was more than the entire amount which had been subscribed to the capital • stock of the plaintiff company prior to and on April 1st 1871.</p> <p>3. To prove by W. W. Martin that he was authorized by the board, of dii'ectors to solicit subscriptions to the capital stock of the plaintiffs under a certain form; that on presenting this form to defendant, he declined to subscribe, except upon condition that his subscription should not become valid unless enough was subscribed to grade and bridge the road and secure the right of way to West Brownsville; that accordingly the form of subscription was then and there altered by witness and defendant so as to set forth such condition ; that before such conditional subscription was reported to or accepted by the company, at the request of defendant, witness agreed to hold back defendant’s subscription until defendant should authorize him to hand it to the company, and afterwards Mr. Scott, not then a member of the board, obtained the defendant’s subscription from witness under pretence of merely wishing to look at it, put it into his pocket, and, without consent of witness or defendant, delivered it to the company ; and that in fact defendant’s subscription never was delivered to the company with his consent.</p> <p>4. George W. Cass, the defendant, being on the stand, the defendant’s counsel propose to ask the witness what representations were made to him at the time of his subscription to induce him to make the same.</p> <p>The plaintiffs, in rebuttal, gave evidence showing estimates, made before the passage of the resolution, of the cost of the work, &c., on the road, tending to show that it would not be in excess of the amount of stock then subscribed.</p> <p>The plaintiffs’ 4th point and answer were:—</p> <p>The plaintiffs if entitled to recover are entitled to recover twelve per cent, interest on the amount of the subscription.</p> <p>Answer. “This point is affirmed. On June 14th 1871, General Cass wrote a letter, which has been read to you, and in which he acknowledges the receipt of a call for the second instalment of the stock subscription. He says: ‘ I am not aware of being a stockholder * * *.’ After that notice, it was not necessary for the company to make any more calls. The defendant can be held as if he had notice, and as the Supreme Court has decided that this one per cent, a month, under the Act of Assembly, is a statutory interest, put on in the way of penalty, and is legal, you will add that to the amount of the subscription, if you find for the plaintiffs.”</p> <p>The defendant’s points and answers are: — ■</p> <p>1. By the terms and legal effect of the defendant’s subscription, it was necessary, in order to make it finally binding on him, that there should have been enough subscribed reasonably to justify the board of directors in concluding that therewith the road could be graded and bridged fr.om South Pittsburg to West Brownsville, and all rights of way acquired. That the hasty, inconsiderate and unfounded judgment of the board, even if in good faith, would not be sufficient to bind the defendant.</p> <p>Answer. “This point is refused. The defendant left it to the judgment of the board, and .agreed to pay whenever in their judgment enough had been subscribed.”</p> <p>2. If the jury believe from the evidence, that on the 1st day of April 1871, the amount of subscription to the capital stock of the plaintiff company was grossly inadequate to pay for the grading and bridging of its road from South Pittsburg to West Brownsville, and, as ordinarily intelligent men, the directors of the company must have known the fact, the passage of the resolution of April 1st 1871 does not bind the defendant.</p> <p>Answer. “The question for you to determine is, was the judgment of the hoard an honest judgment, made in good faith? The facts alleged in this point are left to you. with the other facts in the case, to aid you in determining the question of good faith. You must find before the defendant can escape, that the board acted in bad faith; but if the board did not act in bad faith the defendant will have to pay his subscription, in accordance with his promise and bargain.”</p> <p>3. If the first point be refused, if the judgment of. the board, though unfounded on facts and grossly incorrect, was to bind the defendant, if formed in good faith, then such judgment was quasi judicial and in the nature of an award, and defendant was entitled to notice and.a hearing before the board had a right to decide finally as to whether the condition on which he subscribed had been performed.</p> <p>This point was refused.</p> <p>The verdict was for the plaintiffs for $25,300.</p> <p>The defendant took a writ of error. He assigned for error:—</p> <p>1 — 4. The rejection of his several offers of evidence.</p> <p>5-7. The refusal of his points.</p> <p>8. Affirming the plaintiffs’ fourth point.</p>

<p>1. *Brown contracted with Manross for sale of land and died, leaving a widow and children, having made no provision for the execution of the contract. The Orphans’ Court, on the application of his administrators, with the consent of record of Manross, decreed specific execution, and they conveyed to Manross. Held, that the decree was conclusive under the Act of February 24th 1834, sect. 15, although there was no notice to the widow or heirs.</p> <p>2. By contract for sale of land the estate of the decedent is converted into personalty, over which his personal representatives have absolute control.</p> <p>3. A widow and heirs are not entitled to specific notice of an application for an order of sale for the payment of debts.</p> <p>4. Where the application for specific execution of a contract for sale of land is by the administrators, &c., of a decedent, notice to the widow and heirs is not necessary.</p> <p>5. When land is brought into a partnership as stock, it is, as between the partners, their creditors and one who has knowingly dealt with them for it, personalty belonging to the firm.</p> <p>6. General references to dockets and entries scattered through a record are not a compliance with the rules relating to specification of errors; the specific items should be embodied in the assignments.</p> <p>7. Anshutz’s Appeal, 10 Casey 375; McKee v. McKee, 2 Harris 231; Sutter v. Ling, 1 Casey 466, distinguished.</p>

18. This was an amicable action and case stated filed October 4th 1873, between the County of Westmoreland, plaintiff, and Jesse Fries, defendant.

220. This was a capias in case, issued to December Term 1871 of the court below, by the Manhattan Life Insurance Company of New York against John Y. McLaughlin.

<p>1. A case was submitted to the court under Art. V., sect. 27, of the Constitution, and Act of April 22d 1874 (dispensing with a jury); judgment was entered April 10th and same day exceptions taken and sealed by the judge below; a writ of error was taken April 18th without further proceeding. Held, that the judgment was not final, the writ of error was premature and it was quashed.</p> <p>2. The provision of the Constitution does not execute itself, the practice under it is regulated by the 2d sect, of Act of 1874.</p>

Writs of erro.r to the Court of Common Pleas of Qantbria county: Of October and November Term 1875, No. 23 and 24. To September Term 1872, of the court below, William H. Somerville brought an action on the case for nuisance against A. C. Einney, S. D. Barrows, John Mellon and other Mellons; and to June Term 1878, of the same court, the same plaintiff brought a like suit against S. D. Barrows, John Mellon and other Mellons.

191. The proceedings in this case were instituted under an Act “ To provide for the admission of certain classes of the insane into the hospitals for the insane in this Commonwealth,” &c., passsed April 20th 1869; Pamph. L. 78, 2 Br. Purd. 969. The 6th and 9th sections are as follows :— 6.

210. The proceedings in this case were instituted before a justice of the peace by Joseph Bush, David Rees, George Rich and William Rich, against Joseph Heslop and Mary Heslop. The defendants appealed from his judgment, and the appeal was entered in the District Court of Cambria, October 3d 1874. A rule of reference was entered in the case, and the arbitrators awarded for the plaintiffs $39.52, with costs ; the award was filed February 18th 1875.

<p>1. A corporation was authorized to make a passenger railway along a street of a city, but not to use the street until the consent of the councils should be had, and to keep so much of the streets “ from curb to curb as may be used by them, in perpetual good repair, at the expense” of the corporation. The councils gave consent, on condition the corporation should keep the street in a good and sufficient state of repair, and “in a reasonable sanitary condition.” On one side of the street was a ravine, rising to the top of a hill; by an extraordinary rain, rocks, stone, &c., were washed down the ravine on the street, eight or ten feet in depth, for one hundred foot in length. Eeld, that the railway corporation was bound to remove the deposit from the street.</p> <p>2. It had been the duty of the city to remove such obstructions, and by the act the duty of the city in this respect was transferred to the corporation.</p>

55. This was an action of ejectment, brought April 24th 1872, by Timothy SAveeny, against Eleanor Nolan and Timothy Nolan, for a tract of land “ in Fairview toAvnship * * * bounded on the north by John Moore, on the east by David McCullough, on the south by Miles Sweeny and others, and on the west by widow Seibert, containing 100 acres more or less.” The case Avas tried June 13th 1874, before McGuffin, P. J. The plaintiff and defendant, Eleanor Nolan, are children of Timothy…

Writs of error to the District Court of Allegheny county: Of October and November Term 1874, No. 221 and 236.

<p>1. A contract was for the sale of a piece of land, “ also a tract of coal propertyfor the land the vendee “ agrees to pay. §2500, §2000 to be paid on delivery of the deeds and possession of the property; * * * the coal is to be paid for at the rate of half a cent per bushel, payment to be made for the coal at the end of each year; vendee agrees to use at least §1000 worth of coal at half a cent a bushel each year.' Held on its face to be a divisible contract.</p> <p>2. The vendor being unable on demand to deliver a deed and possession of the property the vendee did not take possession of the coal tract nor mine coal; at the end of the year the vendor sued for the §1000. Held, the suit being in affirmance of the contract, that parol evidence was admissible that the land was necessary for the vendee’s enjoyment of the coal and that it was the understanding at its execution that the contract was entire.</p> <p>3. In absence of explanatory proof, on a sale in separate lots, if title to a portion fails, equity will compel the vendee to take the lots to which title can be made.</p> <p>4. If the part of a contract of sale that has failed be so essential to the residue that it cannot be reasonably supposed the purchase would have been made without it, the contract is dissolved in toto.</p> <p>5. A verbal promise at the making of a written contract, if made to obtain its execution, may be given in evidence.</p> <p>6. An action by the vendor for the purchase-money under a contract is in affirmance of it, and is subject to the rules applicable to a bill for specific performance.</p> <p>7. McClurg v. Price, 9 P. P. Smith 420, distinguished. Nicol v. Carr, 11 Casey 381, followed.</p>

<p>1. In an action against an executor for debt of testator the wife of a residuary legatee is not competent, under the Act of April 15th 1869, to testify for the defendant as to matters occurring in the life of the testator.</p> <p>2. The competency conferred on a witness by the enacting clause of the Act of 1869, is taken away by the proviso where an executor is a party.</p> <p>3. The incompetenoy of the wife to testify in the interest of her husband, in a suit against an executor, stands as if the Act of 1869 had not been passed.</p> <p>4. Dellinger’s Appeal, 21 P. F. Smith 425; Diehl v. Emig, 15 Id. 320; Gyger’s Appeal, 24 Id. 48; Karns v. Tanner, 16 Id. 297; Pattison v. Armstrong, 24 Id. 476, compared.</p>

<p>1. Under Act of February 24th 1834, sect. 59 (Legacies charged on Land), the jurisdiction of the Orphans’ Uourt is exclusive.</p> <p>2. Testator devised real estate to a son, “ with the exceptions and conditions hereafter mentioned.” He gave.some legacies and directed “ that there remain in the hands of my executors to be paid by my son $1250 over and above the legacies, the interest * * * to be paid to my wife during her life; should my wife need any of the principal for her support she is to have it if any of the $1250 should remain it was to be divided amongst his children. He appointed the son sole executor. The son died, the mother living. Held, that the $1250 was a charge on the real estate, and that an action by the administrator d. b. n. of the testator for its recovery could not be maintained in the Common Pleas.</p> <p>3. The design of the Act of 1834 was to vest in the Orphans' Court the large powers of a court of equity.</p> <p>4. When a judgment is entered in the court below on a reserved point it should always be accompanied with a written opinion.</p>

<p>1. Persons not personally interfering with the progress of a work or directing its progress, but contracting with third persons to do it, are not responsible for a wrongful act or for negligence in the performance of the contract, if the act agreed to be done be lawful.</p> <p>2. The immediate employer of the agent or servant who causes the injury is alone responsible for it; to him only the rule respondeat superior applies.</p> <p>3. There cannot be two superiors severally responsible for the same wrongful act.</p> <p>4. VVray contracted with a gas company to dig trenches in streets, lay gas-pipes &c., to the satisfaction of the company’s engineer, who was to have the right to suspend the work; Wray 'to bear all losses, &c., which should happen to any person. Wray sub-let to Davis to perform all the work for which Wray had contracted, to the satisfaction of the company’s engineer, to be suspended as the engineer might direct; Davis to bear all losses by reason of carrying out the work through negligence, &c.; if he neglected to perform the work to the satisfaction of the engineer, Wray on two days’ notice might declare the contract void. A trench was made under the contracts by Davis, who employed the hands and supervised them ; defendant had no control.over them. Plaintiff fell into the trench and was injured. Held, that Wray was not liable to the plaintiff for the injury.</p> <p>5. Painter v. Pittsburg, 10 Wright 213, followed.</p>

<p>1. In an action against the owners of a steamer for injury to barges from collision, the plaintiff having shown the collision and injury, may, in chief, give evidence that defendant’s pilot was incompetent.</p> <p>2. Anything evidencing negligence in those navigating the steamer or incompetency in the discharge of their duties which would tend, though remotely, to produce the accident, would be relevant.</p> <p>3. The barges were floating down the river, guided by oars only; the steamer was ascending and under the control of the pilot; the steamer was bound to keep clear of the barges.</p> <p>4. The plaintiff would have made a primit facie case, by showing the collision, injury, and — the accident occurring'at night — the exhibition of suph lights as were necessary to warn the steamer.</p> <p>5. The plaintiff was not bound to rest his case upon the presumption of carelessness arising from the circumstances, but might prove in chief positive negligence.</p> <p>6. The plaintiff was bound, under the Act of Congress and common prudence, to show a light when it would avail the steamer to avoid a collision; that this was neglected during the remainder of the night when the steamer was not in sight, was of no importance to the,defendants.</p> <p>7. Evidence that the pilot, “ after the accident, admitted the collision was caused by his neglect, and within twenty-four hours afterwards committed suicide by poison,” was inadmissible.</p> <p>8. Declarations of the pilot, unless made before or at the time of the collision and so connected with it as to make them part of the res gestee, were inadmissible.</p> <p>9. The narrative of an agent of a past occurrence, is not evidence against his principal.</p> <p>1Ó. The nearness to the accident of the subsequent declarations of an agent does not qualify them as evidence, unless they are so immediately connected as to form parts of its history.</p> <p>11. Fawcett v. Bigley, 9 P. F. Smith 411, followed.</p>

<p>1. A legacy was charged on land devised; the devisee entered into possession ; the legatee contested the will; the devisee tendered her the legacy with interest to the time of tender, which she refused. Held, that she was not entitled to interest after the tender.</p> <p>2. Her contest of the will was a refusal of the legacy and she was not entitled to interest until demand.</p> <p>3. There being no demand for the legacy until petition in the Orphans’ Court for a decree of payment, interest stopped until filing the petition.</p>

<p>1. Killbuck in 1806 applied to the Land Office for an island at the head of the Ohio river; he proceeded no further and no warrant was issued. In 1832 the island was carried away by a flood, leaving only a sand bar: Held, that although this prevented a grant of the ground under the land laws, it did not prevent a grant by special law.</p> <p>2. In the location of a body of land for the benefit of soldiers the Commonwealth reserved 3000 acres on the east and north of the Ohio and Allegheny rivers, and directed it to be laid out in lots for a town (afterwards Allegheny City) ; some of the lots abutted on the north side of a street called Bank lane, “ as it runs by the courses of the riverHeld, that the title of the lot-owners to the soil did not cross the street to the river.</p> <p>3. The interest of the lot-owners south of the north line of the street was but an easement in common with all others in the use of the street, which was bounded by the water line.</p> <p>4. The water highway began at the water line and the public right was such only as could be claimed by all for navigation and other purposes.</p> <p>5. The street was widened by deposits by the owners of the lots and by the city and was widened by the city to a defined width; this was not as an accretion by gradual doposits or as an enlargement by dereliction of the water.</p> <p>6. The channel between the island and Allegheny City became so filled as to be useless as a highway, unless in high water ; the land lying between the natural low-water line of the island and Bank lane belonged to the Commonwealth.</p> <p>7. The Act of April 16th 1858, under which commissioners were appointed to fix the water lines in the Ohio and Allegheny rivers, enacted that “ all riparian rights now vested in the state lying between high-water lines and the river shall be vested in the corporations in which the same shall be:” Held, not to be a grant of the soil.</p> <p>8. The Act of 1858 could not operate so that the commissioners in running out the low-water line on the northern shore could include part of Killbuck island.</p> <p>9. The object of the Act of 1858 was not to transfer titles, but to mark the boundaries of riparian rights and make them certain and permanent in their extent.</p> <p>10. An object of the Act of 1858 was to regulate the right of navigation along the shores, by fixing high- and low-water lines, which would definitely determine the extent of the exercise of the right to which the owners of land could exercise their own right under the law of the state.</p> <p>11. The extension of the low-water line of the northern shore over a part of the former site of the island did not pass the title of the Commonwealth in the intermediate channel or to the bars and sand banks within the lines, or in the soil of Bank lane, to the owners of the lots on that street, nor to any one else.</p> <p>12. The title of an act was “ To perfect the title to Killbuck island * * * and directing the surveyor-general to issue a patent therefor the land described in the act covered more than the island. In ejectment for the land mentioned in the act, the recovery was for less than Killbuck island : Held, that the act was constitutional, at least for the extent of the recovery.</p> <p>13. Allegheny County Home’s Case, 27 P. F. Smith 71; Dorsey’s Appeal, 22 P. F. Smith 192; Poor v. McClure, 27 P. F. Smith 214; Wainwright v. McCullough, 13 P. F. Smith 66; Zug v. Commonwealth, 20 P. F. Smith 138, adhered to.</p>

281. The appeal in this case was from the decree of distribution of the estate of Thomas McClurg, deceased.

<p>1. Brady leased to Lambing a lot of land, to have the sole right to bore for oil, &c., for twenty years. Lambing to commence operations in sixty days and continue with due diligence ; if he should cease operations twenty days at any one time, Brady might resume possession. There were other covenants in the lease, and it was then stipulated that a failure of Lambing to comply with any one of the conditions, should work a forfeiture, and Brady might enter and dispose of the premises as if the lease had not been made. It was further agreed that if Lambing did not commence operations at the time specified, he should pay Brady $30 per month until he should commence: Held, that the covenant of forfeiture was modified, not abrogated, by the clause for payment of rent. 2. Lambing did not commence operations ; he paid four months’rent; he omitted payment for eleven months and then tendered the amount for that time: Held, that the lessor might refuse the tender and insist on the forfeiture.</p> <p>3. In such case time is of the essence of the contract, and equity follows the law and will enforce the covenant óf forfeiture as essential to do justice.</p> <p>4. Equity abhors a forfeiture when it works a loss that is contrary to equity, not when it works equity and protects the lessor against the laches of the lessee.</p>

<p>1. A lease was for a store-room, for two years, for the yearly rent of $2000, with the stipulation that if the lessee should, ‘‘ at any time during the continuance of this lease, attempt to remove or manifest an intention to remove his goods and effects out of or off the premises, without having paid * * * in full for all the rent which shall become due during the term of this lease * * * the whole rent for the whole term shall be taken to be due * * * and the (lessor) may proceed * * * to distrain and collect the whole as if by the conditions of this lease the'whole rent was payable in advance.” Held, that by the lease it was not required that the attempt or intention to remove the goods should be fraudulent in order to authorize a distress.</p> <p>2. The tenant becoming embarrassed sold and delivered goods to his creditors in payment of debts to them and made an assignment for benefit of creditors. Held, that the rent for the whole term had. become due and the landlord might distrain.</p> <p>3. The tenant assented to the distress and within four months proceedings in bankruptcy were commenced against him. Held not to be in fraud of the Bankrupt Law.</p> <p>4. Grant & McLane’s Appeal, 8 Wright 477, distinguished.</p>

<p>1. A guardian had money of his ward ; he placed it in his wife’s hands at the instance of his surety, to preserve it from his creditors and his own control; she invested it in real estate, and by various transactions realized profit, with which she purchased property which was levied on under an execution for a debt of the husband. Held, that the money with its profits belonged to the ward and the accretions could not be seized as the husband’s.</p> <p>2. Trustees cannot derive advantage from the administration of the trust property.</p> <p>3. Profit derived from land purchased by a trustee with trust money shall go for the benefit of the cestui que trust.</p> <p>4. The ownership of a trust fund is unaffected by the change of the custodian, or where it is taken by a volunteer or one who has notice of the trust.</p> <p>5. Other moneys came into the wife’s hands from the minor sons of the husband, who had relinquished their earnings ; the husband took no part in the transactions of the wife. Held, that the creditors of the husband could not be benefited by her profit from these moneys.</p>

<p>A motion was made in the court below to set aside a sheriff’s return of service of a writ as not being in accordance with the Act of Assembly; the motion was overruled and judgment by default was entered. A writ of error was filed, and before the record was removed, the sheriff obtained leavd to amend his return. Held, that the court had the right to allow the. amend ment.</p>

167. The record of the court below showed as follows :— “ Cyrus Kitchen & Co. v. ■Jefferson Sweesey. ] >No. 494 November Term 1874. . J “November 20th 1874. By virtue of a power of attorney, Pearson Church appears for the defendant and confesses judgment against him for one thousand and ten dollars and fifty-five cents.” On the 5th of April 1875, rule was granted to show cause why judgment should not be opened and the defendant let into a defence.

233. This was an action of assumpsit brought May 21st 1874, by the Second National Bank of Titusville against George E. Mapes and T. T. Mapes, partners as Mapes Brothers. The cause of action was the following notes, which had been discounted and were held by the plaintiffs; the notes were discounted for Garfield’s accommodation :— “ $1200. Titusville, Pa., 12-19-1872. Four months after date, for value received, I promise to pay to Messrs.

28. On the 2d of November 1872, a number of inhabitants of Reserve township petitioned the court for the view of a road “from the northern end of Stanton avenue, &c., to a point on the Troy Hill road at or near its junction with the Spring Garden Run road.” A view was appointed, who, on the 7th December, reported a road between the points named.

145. This was an action of debt, brought to April Term 1873, of the court below, by-the Commonwealth of Pennsylvania, with the suggestion of Abram J. Fulkman, guardian, &c., of Wilson S. Fulkman and others, minors, &e., as plaintiffs, against Abdiel S. McClure impleaded with Frank Duff. The suit was founded on an official bond dated January 27th 1866, by Frank Duff, guardian of the above-named minors, with McClure as his surety.

<p>1. The following paper was held to he testamentary: u Know all men by these presents, that I, James McCully * * * do order and direct my administrators or executors, in case of my death, to pay to Robert I). Clarke, the sum of $75,000, as a token of my regard for him and to commemorate the long friendship existing between us. Witness my hand and seal this 17th day of April a. d. 1872, James McCully [seal].”</p> <p>2. An instrument in any form, if the obvious purpose is not to take place till after the death of the person making it, operates as a will.</p> <p>3. In an issue devisamt vel non, Clarke was a competent witness, under the Act of April 15th 1869, to prove the execution of the paper.</p> <p>4. Clarke testified that he saw McCully sign the paper; many other witnesses testified that in their opinion the signature was McCulIy’s: Held, sufficiently proved under the Wills Act, April 8th 1833, sect._6.</p> <p>5. After such proof the burden of proving fraud or imposition was upon the person alleging it.</p> <p>6. If McCully signed the instrument, the presumption was that he did so voluntarily and with full knowledge of its contents.</p> <p>7. As relevant to the question of imposition, evidence might be given by the plaintiff that the decedent was worth $1,500,000, had neither wife nor child and that his relations with plaintiff were intimate.</p> <p>8. When a witness is called to prove a signature from his knowledge of the signer’s writing, the better rule is that he should be cross-examined as to his means of knowledge before testifying to the genuineness of the signature.</p> <p>9. Bowen v. Goranflo, 23 P. F. Smith 357, adhered to; Boyd v. Boyd, 16 P. F. Smith 283, distinguished.</p>

<p>1. Where there is no direct proof that a building near a railroad is set on fire by sparks from a locomotive, whether it was so set on fire depends on circumstances, and therefore is for the jury.</p> <p>2. Where a barn quite near the track of a railroad was negligently burned by sparks from a locomotive, Held, not evidence of contributory negligence that the owner suffered the roof to be in such condition as that it was more liable to take fire than if it had a -secure and safe roof.</p> <p>3. The owner of property near a railroad must take all risks of a proper and careful use of the road.</p> <p>4. When a railroad company uses the most approved spark arresters, and proper care and vigilance in running their engines, an adjacent landowner has no remedy for injury to his property by fire thrown from a locomotive.</p> <p>5. Where actual negligence in running an engine is proved, and loss results, the mere condition of the landholder’s property is no defence.</p> <p>6. In order to hold a landholder for contributory negligence where injury is done to his property by fire from an engine on a railroad, he must have done some act or omitted some duty which is the proximate cause of the injury concurring with the negligence of the railroad company.</p> <p>7. Farmers may cultivate and use their farms and improvements as is customary amongst farmers, and are not bound to exercise unusual means to guard against the negligence of railroad companies.</p>

<p>1. At August Term a defendant was indicted in the Quarter Sessions for assault, &c., with intent to commit rape, and was bound over to the November Term. At that term the indictment was quashed and the defendant bound over to the January Term. At that term the defendant was indicted for rape in the Oyer and Terminer, and afterwards, at the same term, in the Quarter Sessions his recognisance taken there was certified into the Oyer and Terminer; he was there acquitted of the felony, but convicted of assault, &c., with attempt to commit a rape, and sentenced to imprisonment and to pay the costs of prosecution. Held, that defendant was liable only for the costs of January Term.</p> <p>2. The offence was different and the trial in different courts; the costs on the quashed indictment in the Sessions were not costs of prosecution in the Oyer and Terminer.</p>

<p>1. A devise was: “ My sister Elizabeth shall- have the whole and sole oeeupation, possession, use and benefit of my whole estate during her life, and to have the whole possession without control, except so much of the proceeds as may be necessary for the education of George,” &c. By this a freehold estate for life in testator’s land vested in Elizabeth.</p> <p>2. The will provided that after the death of Elizabeth an annuity should he paid to two of the testator’s brothers for life “ out of the product of the estate,” to be expended for their benefit under the direction of two other brothers ; after the death of Elizabeth the rents to be appropriated to the above legacies and the balance to relieve any of the brothers in necessity ; after the death of all the brothers his land to be sold and the proceeds to be divided among such of his “ lawful heirs as might then be living.” Elizabeth was appointed executrix, but no one was named to sell the land. Held, that the trust to rent the land and apply the proceeds for the indigent brothers did not by operation of law vest in an administrator c. t. a.</p> <p>3. No trustee having been’ named in the will, the trust was to be filled by the court on the application of any party in interest.</p> <p>4. The trustee so appointed would have power by the terms of the will to enter and take the .rents, &c., for the purpose of creating the trust fund for the necessitous brothers; and any one in interest, however remote, might compel such trustee to enter, if necessary to bar the statute.</p> <p>5. The land was, in the life of Elizabeth, sold by the sheriff to a brother for a debt of the testator; he entered under the sale, which proved to be void; he was the last survivor and lived twenty-five years after Elizabeth. jHeld, that his entry was under color of title and was adverse to all interests under the will; that the Statute of Limitations ran in his favor from her death and was not postponed by the trust for renting or the power to sell for distribution.</p> <p>6. The statute having commenced to run against the living heirs of the testator and the surviving brothers, would run over the subsequent power of sale for distribution.</p> <p>7. The power of sale of the administrator c. t. a. with his auxiliary estate, to execute the power under the Act of February 24th 1834, would not be such distinct estate in remainder, with accruing new right of entry postponed till the death of the survivor of the brothers, as would bar the running of the statute.</p> <p>8. The parties in interest having the right to fill the trust and compel an entry, are not parties in expectancy, who could not enter until their estate fell in.</p> <p>9. The powers to rent and sell, though for different purposes, are not like distinct estates in succession, whose owners have no right of entry till the succession takes effect.</p> <p>10. Smilie v. Biffle, 2 Barr 52, followed.</p>

<p>Error to the Court of Common Pleas of Northumberland county: Of September Term 1875, No. 6.</p> <p>This was an action of ejectment for a tract of 164 acres of land, brought May • 11th 1868, by William E. Reynolds and others, against Jacob Wolfe; the defendant took defence for 108 acres 64 perches. The land mentioned in the writ was part of the Nicholson lands. It was taken up by Benjamin Betterton under a warrant of April 25th 1793, and survey of March 12th 1794 ; and was patented to John Nicholson May 5th 1794. He having become largely indebted to the Commonwealth, judgments in her favor were recovered against him ; they were liens on all his lands in the state.</p> <p>By an Act of Assembly passed March 31st 1806, 4 Sm. Laws 355, for the purpose of collecting these judgments, the governor was authorized to appoint three commissioners, who, amongst other duties, were required to average the demand on each of the Nicholson tracts, and report to the governor; he was to cause the land to be sold, &c., and in certain cases the commissioners had authority to purchase the lands for the use of the Commonwealth. Cadwallader Evans, Joseph Hiester and John Lyon were appointed commissioners under this act. On the 19th of March 1807, 4 Sm. Laws 381, a supplement to this act was passed by which the governor was directed to issue process to the commissioners requiring them or a majority of them to sell the lands, &c. The commissioners were to make return into the office of the secretary of the Commonwealth, who, upon receiving a proper certificate that the purchase-money had been paid, was to execute and deliver to the purchasers deeds for the lands sold. By sect. 5 of the act it was provided, that if the commissioners should deem it better to purchase the land than suffer it to be sold for less than its estimated value, they were authorized to purchase and make return into the office of the secretary of the Commonwealth which should vest in the Commonwealth such title as John Nicholson had and the land so purchased should be disposed of as should be thereafter directed by law. Under process issued -by Governor McKean by virtue of this act, Hiester and Evans, two of the commissioners, returned that they had bought in the Betterton tract, with other Nicholson lands, for the Commonwealth.</p> <p>By Act of March 28th 1814, 6 Sm. Laws 226, the secretary of the Land Office and the surveyor-general were authorized on application made to them to sell by separate tracts any lands of Nicholson which had been purchased for the use of the Commonwealth, take bonds for the purchase-money payable to the state treasurer; a copy of the contract of sale was to be filed in the office of the secretary of the Commonwealth. Upon the payment of the bonds the state treasurer was required to certify the fact to the secretary of the Commonwealth, who was required to issue to the purchaser a deed for the land, under his hand and the seal of the Commonwealth, which deed should pass the title of the Commonwealth to the purchaser.</p> <p>In pursuance of a warrant issued to Joseph Foresman for 300 acres of land, a survey was made on the 8th of April for 325 acres, including the land in dispute ; the survey was accepted September 3d 1817, and a patent was issued to Eoresman on the 28th of July 1830. This title is vested in the defendant, Jacob Wolfe.</p> <p>On the 17th of January 1839, agreeably to the Act of Assembly of March 25th 1814, the Nicholson board sold to William McCoy, agent for Burd Patterson, a body of the Nicholson lands in Northumberland county, including the land warranted in the name of Betterton, and on the 6th of February 1839, Francis R. Shunk, secretary of the Commonwealth, executed and delivered to McCoy, as agent of Burd Patterson, a deed for the same lands under the great seal of the Commonwealth. This title by sundry conveyances is vested in the plaintiffs.</p> <p>The foregoing facts appeared on the trial of the case, before Mayer, P. J. of the 25th district.</p> <p>He charged the jury :—</p> <p>* * * <£ The defendant claims that, as at the time the title of the Benjamin Betterton was held by the Commonwealth and before the sale of it to William McCoy, the Commonwealth had granted her warrant to Joseph Foresman, accepted the survey made in pursuance of said warrant, had issued her patent, both she and her grantees are estopped from setting up the title acquired under said sale. We do hot assent to this proposition. The laws providing for the acquisition of title from the Commonwealth, by warrant, survey and patent, have reference to unappropriated land, and the officers charged with the execution of them have no authority whatever to grant titles to lands of any other description. As was said by Sharswood, J., in Wilson v. Horner, 9 P. F. Smith 162: ‘ The officers of the Land Office are public agents intrusted with the power of granting lands in the name of the Commonwealth, not absolutely, but under the conditions prescribed by law, of which conditions every man is bound to take notice.’ Per Tilghman, C. J., Bixler v. Baker, 4 Binn. 219 : ‘ The officers, of the Land Office are not proprietors of the land granted by them, that they can grant them without regard to quantity or price. The lands belong to the state, and the land officers act only as the agents of the state in disposing of them, and are limited in their action by the authority granted to them in this behalf, so that if they grant lands belonging to the state in a manner not authorized by law the grant must be considered void :’ Kelly v. Graham, 9 Watts 117. ‘And where the state has made special provisions for the sale of lands peculiarly situated either in respect to location or mode of acquisition, these special provisions must be pnrsued, and the general laws for the sale of unappropriated lands have no application:’ Straub v. Dimm, 3 Casey 37. In Skeen v. Pearce, 7 S. & R. 304, Duncan, J., says : ‘ But lands which have been granted by the state, and which escheat and fall back to the state for want of heirs, alienage or forfeiture for treason, or any other cause, are not open for settlement or grant, as the common unappropriated land of the state:’ Blaine v. Crawford, 1 Yeates 290. For, as was truly observed by the court, the same law which vested the property in the state, qualified the sale of it, by the instrumentality of certain persons authorized for the specific purpose. Lands vested by forfeiture for treason, could not therefore be disposed of in the common term of vacant lands. Where the law prescribes the mode and manner in which rights to lands accruing to the state, by reason of any default in the grantee, shall issue, that mode and no other must be pursued. In Straub v. Dimm, Lewis, C. J., says: ‘ It follows that where the Commonwealth acquires title to land by alienage by forfeiture upon an attaint, by alienation in mortmain, or by escheat, her interest must be disposed of in the manner prescribed by the- statutes relating to such estate, and cannot be acquired by warrant and survey in the ordinary mode.’ Applying these principles to the title acquired, under the Joseph Foresman warrant, and it is clear that it cannot prevail against the title acquired by William McCoy under his purchase of the Betterton tract of land. Sect. 5 of the Act of Assembly of 19th of March 1807, after providing how the Commonwealth may acquire the title to the Nicholson lands, prescribes in what manner they shall be disposed of; ‘ and the land so purchased shall be disposed of in such manner as shall be hereafter directed by law.’ And the Act of the 28th of March 1814, having prescribed the manner in which these lands were to he disposed of, and that mode having been pursued in the sale made to McCoy, the acts of the officers of the Land Office in granting a warrant to Joseph Foresman were in excess of their authority, were void, and conferred no title, for the reason that the land covered by the Foresman warrant had been previously appropriated by the Better-ton warrant, and for the additional reason that the Acts of Assembly in regard to the Nicholson lands had prescribed a specific mode of selling said lands and that mode must be pursued. * * * We instruct the jury to find a verdict for the plaintiffs.”</p> <p>The jury found for the plaintiffs.</p> <p>The defendant took a writ of error and assigned the instruction of the court for error.</p>

<p>1. The copy of a statute of another state certified by the secretary of state under its seal is properly certified according to the Act of Congress of May 26th 1790, and is admissible in evidence.</p> <p>2. One chapter of General Statutes of Massachusetts duly certified referred to another statute: Held, that it was admissible in evidence without including in the certificate the act referred to.</p> <p>3. To make an act containing different subjects admissible in evidence, it is not necessary the whole act should be certified; it is sufficient to produce those sections relating to the subject-matter.</p> <p>4. The hooks of a corporation proved hy its clerk are competent evidence to prove the acts necessary to he done to show its existence.</p> <p>5. Where a secretary of state certifies — under the seal of the state — a paper from his own office, it is not necessary that he should certify that “the attestation is in due form.”</p> <p>6. The courts of Pennsylvania are hound hy the decisions of the courts of a sister state in relation to the organization of a corporation under the statutes of that state.</p> <p>7. A corporation of a sister state owning mining leases in Pennsylvania, sold coal to the defendants in this state, through an agent here, known to them to he such agent: Held, in a suit hy the corporation for the price of the coal, the defendants could not raise the question of the plaintiff's right to hold such leases.</p> <p>8. The inquiry into such right could he made only hy the Commonwealth.</p> <p>9. Adle v. Sherwood, 3 Whart. 481, followed.</p>

25. _ . _ This was an action of ejectment brought to December Term 1865, of the court below by the Rector, &c., of the Church of St. Bartholomew against James F. Wood, Bishop of Philadelphia, and Edward McCann, who was tenant of Wood, for a lot of ground bounded by Seventh and Eighth streets, York and Church streets, in the city of Philadelphia; there being a church building erected thereon.

<p>Appeal from the decree at Nisi Prius No. 8, to January Term 1862. In Equity.</p> <p>The bill was filed September 21st 1861, by John L. Wentworth against William Raiguel, Augustus H. Raiguel, Samuel Moore, William G. Skillman, William F. Smith, James M. Whitby, Benjamin Bentley, Christian Kintzle, George Eckert, Edward A. Adams and Henry P. Atkinson.</p> <p>The bill alleged as follows :—</p> <p>The plaintiff was a partner in the firm of Raiguel & Co. No. 3, the successor of two preceding firms of the same name designated No. 1 and No. 2 respectively. No. 2 was composed of the same members as No. 3, except that the plaintiff and Adams and Atkinson, defendants, were in No. 3. No. 1 was composed of the same members as No. 2 with addition of George Eckert. No. 3 had been succeeded by the firm of Raiguel, Moore &• Co., in which plaintiff was not a partner; the defendants comprised all the individuals,— except plaintiff and John J. Ulp, then deceased, — who had been members of either of the firms; the firm of Raiguel, Moore & Co. was composed of those who had been members of one or more of the other firms; a majority of the members of Raiguel, Moore & Co. had been members of all the firms ; that firm was insolvent and was collecting the assets of the three former firms, all which assets belonged to No. 3; Raiguel, Moore & Co. were improperly applying these assets in the purchase of their own paper at a discount and wasting and mismanaging these assets. No. 3 was indebted to the plaintiff in a large amount; he was interested in the distribution of these assets; his interests were not s&fe in the hands of Raiguel, Moore & Co., and were damaged by their mismanagement, and he would suffer loss if they were permitted to collect the partnership debts, &c.</p> <p>The prayer was for an account of all sums received by or for the defendants in respect to the partnership transactions, both as to receipts and expenditures; for a decree that defendants pay plaintiff what might be found due to him ; for the appointment of a receiver and for an injunction to restrain defendants from collecting or receiving debts owing No. 3, or interfering with its assets or property, and for general relief.</p> <p>The answer of William Raiguel, Augustus H. Raiguel, Samuel Moore, William G. Skillman, James M. Whitby, Christian Kintzle, George Eckert, Edward A. Adams and Henry P. Atkinson, filed October 5th 1861, admitted that plaintiff was a member of No. 3, that No. 1 and No. 2 were composed of the individuals named in the bill; but averred that the plaintiff was interested in No. 2, under an agreement (annexed to answer) between him and William Raiguel, by which agreement Raiguel’s interest in the profits of the firm as provided by the articles of partnership, was greater by 8 per cent, than they otherwise would have been; plaintiff was interested, also, in No. 1, the extent and character of which would appear by another agreement between him and William Raiguel (annexed to answer), on account of which agreement Raiguel’s profit _ in that firm under the articles of partnership, was greater by 6 per cent, than it otherwise would have been ; nothing was due to plaintiff, but he was indebted to No. 3, having overdrawn his account more than $3000; it denied that upon a just settlement of the affairs of the first three firms there would be anything due to plaintiff from his co-partners, and averred the belief that the assets of No. 3 were not more than sufficient to pay its liabilities, and there would not be any profits for distribution amongst the partners.</p> <p>On the 8th of February 1862, the answer was amended by adding an averment, that whatever interest plaintiff had in No. 3, had been levied on since filing the bill and answer and sold by the sheriff to Edward G. James.</p> <p>On the 13th of October 1862, the bill was amended by averring that plaintiffs, before the bill was filed and before the sale mentioned in the amended answer, had assigned all his interest in No. 3 to Catharine H. Wentworth, Mark H. Wentworth and George J. Wentworth, executors, &c., of Eben Wentworth, deceased, as collateral security for a debt due by plaintiff to the estate of the deceased, who was his father.</p> <p>On the 15th of March 1867, Samuel C. Perkins, Esq., was appointed master.</p> <p>On the' 13th of June 1867, E. D. James answered, denying knowledge of the matters alleged in the bill and amendment and averring that he had purchased all the plaintiff’s right in No. 3 at sheriff’s sale.</p> <p>On the 21st of June 1868, the deaths of Christian Kintzle and George Eckert were suggested and their respective executors and administrators were substituted.</p> <p>October —1868 Smith and Bentley answered, alleging that they had assigned their interests in the several firms of Baiguel & Co., Smith before and Bentley since the filing of the bill.</p> <p>April 21st 1869, the death of Augustus H. Raiguel was suggested and his executrix substituted as a defendant.</p> <p>May 28th 1870, the death of Edward Gr. James was suggested and his administrator substituted as a defendant.</p> <p>January 25th 1871. The answer was amended by averring the assignment, June 17th 1867, to Samuel Moore of E. Gr. James’s interest in John L. Wentworth’s right, &c., in the firm of Raiguel & Co.</p> <p>March 11th 1871, by leave of court, plaintiffs amended the bill by adding the name Harriet K. Ulp, administratrix, &c., of John J. Ulp, deceased, as a defendant, and May 6th she answered denying any knowledge, information or belief as to the matters involved in the controversy.</p> <p>The respective firms were composed as follows:—</p> <p>Baiguel & Co., No. 1. (January 1st 1853.)</p> <p>'William Baiguel, Augustus H. Baiguel, Samuel Moore, William G-. Skillman, James M. Whitby, William E. Smith, Benjamin Bentley, Christian Kintzle,</p> <p>John J. Ulp, George Eckert.</p> <p>Baiguel & Co., No. 2. (January 1st 1855.)</p> <p>William Baiguel, Augustus II. Baiguel, Samuel Moore, William G. Skillman, James M. Whitby, William E. Smith, Benjamin Bentley, Chistian Kintzle,</p> <p>John J. Ulp.</p> <p>Baiguel & Co., No. 3. (January 1st 1857.)</p> <p>William Baiguel, Augustus I-I. Baiguel, Samuel Moore, William G. Skillman, James M. Whitby, William F. Smith, Benjamin Bentley, Christian Kintzle, Edward A. Adams, Henry P. Atkinson, John J. Ulp,</p> <p>John 11. Wentworth.</p> <p>Baiguel, Moore & Co. (March 1858.)</p> <p>William Baiguel,</p> <p>Samuel Moore, William G. Skillman, James M. Whitby,</p> <p>Edward A. Adams, Henry P. Atkinson.</p> <p>The master found the following facts :—</p> <p>“ Prior to 1853, there had been in the importing and wholesale dry goods business in this, city, several successive firms under the names of Eckel, Raiguel & Co., Nos. 1 and 2. John L. Went-worth had for some years been in the employ of these firms as a clerk. The formation of a new firm being contemplated, William Raiguel, who had been a member of the preceding firms, and was to he the principal member of the new firm, on the 31st of December 1852, entered into an agreement, under seal, with John L. Wentworth. By this agreement, Wentworth was to devote himself to the employ of Raiguel & Co. for the years 1853 and 1854; and in consideration William Raiguel agreed to pay him $2500 per annum, ‘ and also to pay to Mrs. Martha Wentworth, for her own use and benefit, a sum of money equal to six per cent, of the net profits of the business of Raiguel & Co. (after deducting all losses and expenses), for the years 1853 and 1854, less the sum of $2500 per annum ; it being understood that the amount to be paid to J. L. Wentworth and to Mrs. Martha Wentworth, together, shall be equal in amount to six per cent, of the net profits of the business of Raiguel & Co. for the two years before mentioned.’ It was also thereby agreed, that in case of J. L. Wentworth’s death during either of said years, the compensation to be paid to him and Mrs. Wentworth, should ‘continue to be paid to the end of the year in which the death took place, unless the surviving partners choose to dissolve the partnership previous thereto.’</p> <p>“ On the 1st of January 1853, William Raiguel, Augustus H. Raiguel, Samuel Moore, John J. Ulp, William Gr. Skillman, William E. Smith, G-eorge Eckert, James M. Whitby, Benjamin Bentley, and Christian Kintzle entered into articles of co-partnership under the name and style of Raiguel & Co. This is ‘ Raiguel & Co., No. 1.’ By these articles, the business was to be carried on at the store lately occupied by Eckel, Raiguel & Co., the partnership to continue for two years. The capital was to be the respective amounts credited to each of the parties, on the books of the firm of Eckel, Raiguel & Co., No. 2, interest to be credited at the rate of 6 per cent. The net profits were to be divided as follows : William Raiguel, 31J per cent., Augustus H. Raiguel, 19J per cent., Samuel Moore, 17 per cent., and the remaining partners from 4 to 5 per cent. each. Certain limits were fixed beyond which neither partner was to draw from the profits of each year’s business, for private and family expenses; any amount drawn in excess of these limits by either of the partners to be with consent of the others; and the excess to be regarded as lent to such partner by the firm. It was further ‘ agreed to, by and with William Raiguel, that the salary of John Langdon Went-worth shall be paid by the said William Raiguel.’</p> <p>“ On the 1st of January 1855, the same parties, with the exception of George Eckert, entered' into ‘a new co-partnership,’ under the same name. This is the firm known as ‘Raiguel & Co., No. 2.’ The articles are identical with the former articles, except that the co-partnership was to continue for but one year, and that the rate of division of profits is changed as follows: William Raiguel, 30 per cent., Augustus H. Raiguel, 20 per cent., Samuel Moore, 17 per cent., and the remaining partners each 5J per cent., except Skillman, who was to have 6 per cent. * * * The same agreement as to the payment of the salary of J. L. Went-worth is contained in the new articles, as in the former ones.</p> <p>“ On the 3d of May 1856, there was executed a Memorandum of Agreement — therein recited as having been made on the 7th of March 1855, but ‘ more formally reduced to writing ’ on the date of its execution — between' and signed by William Raiguel, and J. L. Wentworth and Eben Wentworth. It is to the following effect: said J. L. Wentworth agrees with William Raiguel to continue in the employ of the firm of Raiguel & Co., ‘ as a clerk,’ during 1855 and 1856 ; Raiguel to pay J. L. Wentworth for his services $2500 per annum; said Raiguel, in consideration of the premises ‘ and of the indebtedness of the said J. L. Wentworth to the said Eben Wentworth,’ agrees with Eben Wentworth, that if said sum of $2500 shall not equal eight per cent, of the net profits of said firm during each of said years, Raiguel will pay to Eben Wentworth such other sum as, with the $2500, shall equal the eight per cent, of profits, which sum Eben Wentworth hereby agrees to accept in part payment of the sum of $11,499.34, now due to him by J. L. Wentworth. In case of the death of J. L. Wentworth before the end of 1856, Raiguel would pay to his legal representatives and to Eben Wentworth the sums in like manner as if J. L. Wentworth was living at that time.</p> <p>“ Raiguel & Co., No. 2, continued during the years 1855 and 1856 under the articles of January 1st 1855, though the term mentioned therein was but one year.</p> <p>“ January 1st 1857, articles of co-partnership were entered into, by all the partners who had composed the firm of Raiguel & Co., No. 2, and also by Edward A. Adams and Henry P. Atkinson, and John L. Wentworth, who was styled in the heading of the articles ‘ dormant partner,’ the others being styled ‘active partners.’ The name of the firm was also Raiguel & Co., and is referred to as No. - 3 ; it was to continue for three years. William Raiguel, in lieu of a percentage of the profits, was to receive in cash $8000 per annum, to have a general supervision of the affairs, but the active management to be conducted by the other partners, a majority of whom should settle all differences, &c., the decision of such majority to be final and' binding upon all. The profits of the business after deducting losses, expenses, &c., and the compensation to William Raiguel, were to be divided as follows, to wit.: Augustus H. Raiguel, 22 per cent., Samuel Moore, 18 per cent., Skillman and ‘John L. Wentworth,’ each 8-| per cent., and the others from 5-J to 7J per cent. each.</p> <p>“ The amounts to be drawn out by the respective partners for private and family expenses, were as follows, to wit: Augustus H. Raiguel, $6000, Samuel Moore, $5500, ‘John L. Wentworth, $3000,’ Adams and Atkinson, each $2000, and the others, each $2500. * * * In the final closing and settlement of the business, should it be profitable, the collections of the firm made after its entire debts had been paid, to be applied so as should tend to make the partners’ credits (except that of William Raiguel) proportioned to their respective interests as above detailed; after the dissolution of the co-partnership, the books, papers and effects of the firm to remain in the hands of William Raiguel, and such other person as a majority of the members of the firm might select, free access being granted to the same to any member of the firm.</p> <p>“ On the 8th October 1857, William F. Smith, for the consideration of $1093.75, assigned to Raiguel & Co., No. 3, inter alia, all his interest in the late firms of Raiguel & Co., from the 1st January 1853 to the date of said assignment.</p> <p>“ In October 1857, Raiguel & Co., No. 8, suspended payment.</p> <p>“ December 3d 1857, Augustus H. Raiguel, in consideration of $10,000, assigned his interest in the three firms of Raiguel & Co., since January 1st 1853, to William Raiguel.</p> <p>“ On the 19th December 1857, John J. Ulp, in consideration of $2000, assigned his interest in the firms of Eckel, Raiguel & Co., and Raiguel & Co., since January 1st 1846, to William Raiguel.</p> <p>“ On the 14th March 1858, Raiguel & Co., No. 3, dissolved by mutual consent, and on or about the same day, the firm of Raiguel, Moore & Co., was formed, composed of William Raiguel, Samuel Moore, William G. Skillman, James M. Whitby, Edward A. Adams and Henry P. Atkinson, being the same who had composed the firm of Raiguel & Co., No. 3, leaving out John L. Wentworth, Bentley, Kintzle, and the three who had assigned their interests as above stated.</p> <p>“ In the books of Raiguel & Co., No. 1, at the commencement of the partnership, the accounts of the partners were opened on consecutive folios, regularly succeeding each other in the order in which the names were signed to the articles. Each partner had two accounts — one a general account, and the other an ‘ expense account; ’ and four of the partners, William Raiguel, Augustus H. Raiguel, Samuel Moore and William F. Smith, each had an additional account, entitled ‘ loan account.’ The expense accounts were charged with the sums which the partners drew for their own use, and at the end of the year the totals were carried to the debit side of their respective general accounts.</p> <p>“ Immediately following the accounts of the partners was an account opened with D. B. Woodbury, who was the principal bookkeeper of the firm, then an account opened with J. L. Went-worth, followed by accounts of the different clerks and salesmen. No expense account or loan account was opened with John L. Wentworth, on the books of this firm. His amount was charged with cash from time to time, and credited at the end of the year £By William Raiguel $2500,’ and this account carried to the debit of William Raiguel’s general account. In 1865, nearly four years1 after suit brought, another account entitled £ The J. L. Wentworth Interest Account,’ was opened on the books. It was not pretended that this could have any effect on the rights of the parties.</p> <p>££ The accounts in the books of Raiguel & Co., No. 2, were opened in the same manner, except that an additional account was opened to William E. Smith, entitled “William E. Smith Special,” and that upon the folios immediately succeeding the accounts opened to the parties who had signed the articles, were the following accounts, to wit, £ George Eckert — Store,’ ‘Peter Bridenthal —Store,’ £D. B. Woodbury — Store,’ £J. L. Wentworth — Store,’ succeeded by sundry accounts of clerks, salesmen, &c., employed by the firm, each of which accounts was designated on the books by the addition of the word ‘ Store.’ An account to ‘The J. L. Wentworth Interest,’ was also opened on these books at the same time and under the same circumstances as the similar account bn the books of Raiguel & Co., No. 1.</p> <p>“ The books of Raiguel & Co., No. 3, contained the accounts of the parties who signed the articles of co-partnership, in the same manner as the books of Raiguel & Co., Nos. 1 and 2, contained the accounts of the parties who signed the articles of those firms respectively. Among the others, John L. Wentworth has two accounts opened to him, — one a general account, and the other an ‘ expense account.’ No other account to or concerning him individually is opened on the books of No. 3.</p> <p>“William F. Smith bad an arrangement in Nos. 1 and 2, with William Raiguel, by which the latter, out of his own proportion of the profits, allowed Smith one per cent, in addition to the percentage he was entitled to by the articles. No such arrangemont existed in No. 3, but Smith was allowed by the articles themselves an increased proportion of the profits in comparison with the other partners, over what he had been allowed by the articles of the prior firms.</p> <p>“ Some testimony was introduced by the defendants, to show that John L. Wentworth had as much authority, discharged the same duties, and was treated by themselves, and regarded and treated by the employees of the firms, in the same manner in each of the three firms. This testimony was for the purpose of showing that John L. Wentworth was, in fact, a partner in Nos. 1 and 2, as well as in No. 3. * * * None of the witnesses were parties outside of the firms ; and whatever might be the effect upon a contest in which third parties were striving to fix a liability upon John L. Wentworth, as a partner, the master cannot regard such evidence as operating in the present controversy to add or to vary the written instruments. The question of partnership inter sese must stand or fall upon the written instruments. So far as the mode of opening the accounts upon the books of the several firms goes, it shows that John L. Wentworth was, in Nos. 1 and 2, not regarded as a partner. * * *</p> <p>“ The master is of the opinion 'that John L. Wentworth, upon the proper construction of the written instruments, was not a partner in tbefirm of Raiguel & Co., No. 1, nor a partner of William Raiguel in a sub-copartnership. The agreement of December 31st 1852, was, in the opinion of the master, an undertaking for the employment of Wentworth as a clerk or agent in the service of Raiguel & Co., No. 1. The $2500 was to be paid in any event, irrespective of the profit or loss of the concern. Why the agreement was made by William Raiguel alone and not by the firm, did not appear, nor is it material. The $2500 was to bo paid by William Raiguel — it was so understood and mentioned in the articles of copartnership. The additional payment to be made to Mrs. Martha Wentworth,, was only in case six per cent, of the profits of the firm for the two years should exceed the amount of $2500 per annum ; that is, as the master construes this instrument, the payment to Mrs. Wentworth was not to be made annually, but at the close of the two years’ business. ‘ And also to pay to Mrs. Martha Wentworth for her own use and benefit, a sum of money equal to six per cent, of the net profits of the business of Raiguel & Co. (after deducting all losses and expenses) for the years 1853 and 1854, less the sum of $2500 per annum, it being understood that the amount to be paid to John L. Wentworth and to -Mrs. Martha Wentworth, together, shall be equal in amount to six per cent, of the net profits of the business of Raiguel & Co., for the two years before mentioned.’ There is no clause or expression in this agreement to the effect that if six per cent, of the net profits did not equal $2500 per annum, then the payment to John L. Wentworth was to be that much less than $2500; as would have been naturally inserted had such been the intention of the parties. If he was a partner, the most natural and simple course would have been for him to unite in the articles; he might have been a salaried partner, or had a proportion of the profits, or been compensated by a combination of the two modes. There was no inherent difficulty arising out of the special terms as to the amount or mode of payment, or the introduction of a third party as a recipient of a portion of what would be due on John L. Wentworth’s account. * * *</p> <p>“ How is it as to Raiguel & Co., No. 2, upon the written instruments ? This partnership was formed January 1st 1855, upon the termination of that of Raiguel & Co., No. 1; John L. Went-worth was not consulted upon the formation of the ‘ new co-partnership,’ January 1st 1855. In fact, prior to March 7th 1855, two months after the new co-partnership’ was formed, it would seem as if he had continued under the old arrangement tacitly ; the only apparent change in the members of the firm of Raiguel & Co., No. 1, which had been formed January 1st 1853, being the withdrawal of George Eckert as a partner upon the termination of the period limited by the articles; and it appears from the books, that Mr. Eckert even remained in the employ of the new firm. But on the 7th March 1855, a new agreement was made between J. L. Wentworth, William Raiguel and Eben Wentworth. This agreement was reduced to writing, executed and signed by the parties thereto, May 3d 1856, nearly fourteen months after it was made, and when there had been ample time for reflection and consideration of all the details ; when all doubts or questions, if any ever existed, as to the status or relations of John L. Went-worth, in or to the firm, must have been fully settled and resolved. It should be borne in mind also, in this connection, that William Raiguel was the senior and principal partner of both of the firms of Raiguel & Co., Nos. 1 and 2; and had the purpose and intention of the parties been, that John L. Wentworth should be, in fact, a partner of Nos. 1 and 2, by reason of the agreements entered into between him and William Raiguel, the latter, it must be supposed, would have taken care to guard the rights and interests of his firm. But the very first article of the new agreement as reduced to writing in May 1856, more than three years after the agreement of December 31st 1852, had been made, is as follows: ‘ The said J. L. Wentworth agrees with the said William Raiguel to continue in the employ and to serve the said firm of Raiguel & Co., as a clerk, for and during the years 1855 and 1856, for the consideration thereinafter mentioned.’ By the second article, William Raiguel promises to pay said J. L. Wentworth for his said services $2500 for each of said years. The third article is more clear than the corresponding provision of the agreement of December 31st 1852. By this article, William Raiguel promises and agrees to and with Eben Wentworth, that if the $2500 shall not equal eight per cent, of the net profits of said firm during each of said years, ‘ he, the said William Raiguel, will pay to said Eben Wentworth such other sumas with the said sum of $2500, shall equal the said eight per cent, of said profits after the business is settled up and the losses and expenses having been deducted for said years, which sum the said Eben Wentworth hereby agrees to accept in part payment of the sum of $11,499.34, now due to him by the said J- L. Wentworth.’</p> <p>“ The article of this agreement in reference to the death of J. L. Wentworth prior to the time limited for its expiration, differs in phraseology from the corresponding article in the agreement of December 31st 1852. * * *</p> <p>“ The master is of the opinion and so reports, that the intention of the parties was the same, notwithstanding the variation in phraseology; and that the evident intention was that John L. Wentworth should not in either case be a partner. But was he a partner in these two firms in fact, notwithstanding this intention as gathered from the instruments ? * * * The only provision under which Wentworth could be'held as a partner, is the fact that to some extent and in some manner he is interested in the profits. There was no community of ownership in the profits of Raiguel & Co., Nos. 1 and 2, between John L. Wentworth and the parties who signed the articles of co-partnership. William Raiguel was to pay him or on his account a certain sum, not exceeding in the one case six, and in the other eight per cent, of the net profits of the firm; this was his ‘ salary,’ as a ‘ clerk.’ * * * As respects the six and eight per cent, respectively, he could not have called on Baiguel & Co., Nos. 1 and 2, for an account. He could look only to William Baiguel. * * *</p> <p>“ J. L. Wentworth was interested in the profits of the firms of Baiguel & Co., Nos. 1 and 2, or in William Baiguel’s share of those profits, to the extent and by reason of their being in part a compensation or salary for his services as a clerk in the employ of Baiguel & Go., Nos. 1 and 2; but it was only as such compensation or salary, and not by reason of his having any ownership or community in interest in the profits of those firms. * * * Even as to third parties, a commission upon profits, or an agreement to pay and receive a certain proportion of profits, either alone or in addition to a fixed sum, as a remuneration or salary for services rendered, will not constitute the party so remunerated a partner; there is a right to compensation proportionate to -■the profits, and not an interest in them. * * *</p> <p>“ The existence, upon the books of No. 1 and No. 2, of accounts entitled ‘ The J. L. Wentworth Interest Account,’ has already been mentioned. These ’ accounts were opened by William Gr. Skillman, one of the defendants, and who, as the liquidating partner, had charge of the books and the collection of the assets of the four several firms mentioned. In the course of the settlement of the affairs of Baiguel & Co., No. 3, the firm proved, contrary to the expectation alleged in the answer, more than solvent; and after the debts of the firm had been paid, the proceeds of collections from and on account of their assets, were from time to time carried to the credit of the several partners, in the respective proportions stipulated in the articles of co-partnership. Some time in 1865, the accounts of ‘The J. L. Wentworth Interest’ were opened in the books of Baiguel & Co., Nos. 1 and 2, and the amounts to which John L. Wentworth was entitled to be credited in No. 3, as his proportion of the proceeds of the assets, down to September 30th 1865, were debited to him on the hooks of the latter firm as carried to the credit of ‘ The J. L. Wentworth Interest Account’ on the books of Baiguel & Co., No. 2; and the amounts to which he was entitled to be credited in No. 3, subsequently to September 30th 1865, were debited to him on the hooks of No. 3, as carried to the credit of ‘The J. L. Wentworth Interest Account,’ as opened upon the books of Baiguel & Co., No. 1. It is these amounts to which, subject to the finding of the master in respect to certain specific items heretofore mentioned, John L. Wentworth is entitled — the master having found that he was not a partner in Baiguel & Co., Nos. 1 and 2. The general correctness of the items was admitted by the complainants.</p> <p>“ The first item as to which there was a dispute between the parties, was as to a portion of the sum of $3207.58, charged to John L. Wentworth, on the hooks of Baiguel & Co., No. 3,-as drawn by him from the firm. * * * No question was raised, ex-eept as to one for $726.18, under date of December 1st 1857. The only voucher for this was a slip memorandum in the handwriting of William G. Skillman, one of the defendants, who was the cashier of Raiguel & Co., No. 3. This memorandum was headed ‘J. L. Wentworth owes drawer;’ and sundry amounts appear charged thereon to him from time to time, some with date and some without. Among these amounts, one for $17.49 was admitted to be an error, having been charged in another place previously. John L. Wentworth denied all knowledge of the sums making up the $726.18, except $17.49, and as this is charged against him elsewhere, and the master is of opinion that there is no sufficient proof of-the balance of the item as a matter of charge against Wentworth, he is allowed a credit for the $726.18, under date of December 1st 1857.”</p> <p>The master then refers to the disputed items of account with the plaintiff, reports and considers the evidence and states an account, by which he finds that there was due to the plaintiff on the 1st of January 1868, the sum of $18,731.66, with interest on $15,852,68, part of it.</p> <p>The master then proceeded:—</p> <p>“It remains to consider the effect of the-assignment and sheriff’s sale heretofore mentioned, upon the interest of Wentworth as represented by said indebtedness. The facts are as follows:—</p> <p>“ On the 30th June 1855, John L. Wentworth made his promissory note, dated Portsmouth, N. EL, June 80th 1855, to the order of Eben Wentworth for $11,499.34, payable on demand with interest until paid. Eben Wentworth died August 13th 1860. Sundry payments to the amount of $750 on account of principal, and $1905.05 on account of interest, the last of which bore date January 24th 1861, were endorsed on this note.</p> <p>“John L. Wentworth executed and delivered the following assignment: — ■</p> <p>“‘Philadelphia, June 25th 1861.</p> <p>“ ‘ For and in consideration of the sum of $11,000, which I am indebted to the estate of Eben Wentworth, deceased, of Portsmouth, N. II., I hereby transfer and assign as collateral security therefor, to Catharine H. Wentworth, Mark H. Wentworth and George J. Wentworth, executors of said Eben Wentworth, deceased, all my interest in the assets of the firm of Raiguel & Co., of this city, of which I was a partner, and all money which may be collected by me, from my interest in said firm, is to be paid over to said executors, until the amount due by me to said estate is paid.</p> <p>Witness my hand and seal,</p> <p>J. L. Wentworth, [l. s.]’</p> <p>“ This assignment was sent immediately to the executors in Portsmouth, and the following receipt therefor returned by them to J. L. Wentworth within a day or two thereafter :—</p> <p>“ ‘ Portsmouth, June 28th 1861.</p> <p>“ ‘ Received of J. L. Wentworth an assignment of his interest in the assets of the firm of Raiguel & Co., of Philadelphia, of which he was a partner, as collateral security for his indebtedness of $11,000 to the estate of E. Wentworth, deceased.’</p> <p>“The fact of this assignment having been made, was not communicated to the partners of John L. Wentworth in the firm of Raiguel & Co., No. 3, until after the levy of the execution hereinafter mentioned. They were certainly informed of it at the time of the sale, and it is more than probable that they had been aware of its existence for some days prior thereto. * * * The master has no hesitation in reporting that the assignment was made, executed and delivered, and the receipt therefor signed and returned boná, fide, at the times they respectively bear date, and before the filing of the bill in this case; and under the amendment filed by leave of the court, he regards the case as before him, with the same effect as if the substance of the amendment had been included in the bill as originally filed.</p> <p>“ On the 12th October 1861, after the bill in this case had been filed, an execution was issued upon a judgment obtained September 20th 1851, against John L. Wentworth, by Mott et al., in the District Court of Philadelphia for $860.35. This execution was levied upon ‘the right, title and interest of J. L. Wentworth, in and to the firm of Raiguel & Co., dry goods dealers, doing business at Nos. 220 and 222 North Third street.’ On the 9th November 1861, Mr. Guillou, as attorney for the executors of Eben Wentworth, gave notice to the sheriff in writing that said executors claimed said right, title and interest under the assignment above mentioned; and on the 15th of the same month, an affidavit of said claim was filed with the sheriff, by Mark H. Wentworth, on behalf of himself and the other executors. The sheriff thereupon took a rule on the plaintiffs in the execution and the claimants to interplead, under the Act of 10th April 1848. This rule upon hearing was discharged by the District Court, on the ground that the interest in question was not such a chattel as was contemplated by the Act of Assembly. * * *</p> <p>“ About the last of November or the early part of December 1861, Edward G. James, purchased the judgment for $500, and the same-was marked to his use of record December 2d 1861, the day of the sheriff’s sale. This purchase was made at the request of Samuel Moore, one of the partners in Raiguel & Co., and in Raiguel, Moore & Co. Mr. Moore furnished Mr. James with the money for the purchase. It was purchased by Mr. James as a friendly act at the request of Mr. Moore.’ * * *</p> <p>“ On the 2d of December 1861, the sheriff sold the interest levied on to Edward Gr. James for $1100. At the sale notice was publicly given that J. L. Wentworth’s interest in the firm of Raiguel & Co., belonged to the executors of his father under the assignment.</p> <p>“ On the 12th of December 1861, James gave notice to Raiguel & Co., of his purchase of Wentworth’s interest.</p> <p>“ The master is of opinion and so reports, that the assignment transferred the entire interest of John L. Wentworth in the firm of Raiguel & Co., No. 3, to the executors of Eben Wentworth, deceased; and that they are entitled to a decree for the whole amount found due to John L. Wentworth. * * *</p> <p>“ It was urged in argument, that the paper of June 25th 1861, was really no transfer, but a pledge or mortgage by John L. Wentworth of his interest; that there could be no such pledge or mortgage under the law in Pennsylvania; that the sheriff sold the interest of John L. Wentworth, and the'sale divested the pledge, even granting that there could exist such an unrecorded lien; and that the executors, if entitled to anything, should have claimed it out of the proceeds of sale.</p> <p>“ But the transfer was an assignment of the entire interest; there was no possession that could be given of it. The partnership was dissolved; John L. Wentworth had nothing to do with the management of the assets ; that was in the hands of Raiguel, Moore & Co., who had undertaken their collection, and prior to their assignment, had even discharged Wentworth from their employ in assisting in the collection. There was no necessity to notify his co-partners, except to prevent any action on their part by which the rights of third parties in his interest might possibly have attached. And there was no such action here. As to creditors, there was no credit given on the faith of the apparent possession by John L. Wentworth of his interest. There was no such possession distinct from the ownership as to constitute the assignment a fraud as regards creditors. As the interest was not such a chattel, in the opinion of the District Court as to be within the meaning of the Sheriff’s Interpleader Act; so neither is it such a chattel as to be within the reason of the rule which forbids as against creditors, transfer of ownership without change of possession open, notorious and manifest. There could be no such change. * * *</p> <p>“ The conclusions of the master upon the whole case, therefore, are that John L. Wentworth was not a partner in the firms of Raiguel & Co., Nos. 1 and 2, and cannot be held liable to make good any deficiency in the assets of those firms, or either of them, for the payment of their debts ; that the entire interest of John L. Wentworth in the firm of Raiguel & Co., No. 3, and in the assets of said firm, passed to the executors of Eben Wentworth, deceased, under the assignment of June 25th 1861; that this assignment was unaffected by tbe sheriff’s sale, December 2d 1861, under Mott’s judgment; that the purchaser at that sale took nothing thereby ; that the value of the'interest of John L. Wentworth in the firm of Raiguel & Co., No. 3, and the assets of said firm is $18,731.66, including interest up to January 1st 1868, and interest on the sum of $15,852.68 from that date; together also with his proportionate part, being 8§ per cent, of the proceeds of all the uncollected assets of said firm; and that the defendants, William Raiguel, Samuel Moore,'William G. Skillman, James M. Whitby, Christian Kintzle, Edward A. Adams and Henry P. Atkinson, should be decreed to pay to the executors of Ehen Went-worth, deceased, the said sum of $18,731.66, with interest on the said sum of $15,852.68 from January 1st 1868, until paid, and also to pay to them from .time to time as collected 8-| per cent, of the proceeds of the assets of the firm of Raiguel & Co., No. 3, which remained uncollected upon the 29th of September 1866, together with costs of suit; that as to the defendant, Augustus H. Raiguel, he having assigned and transferred his interest in said firm of Raiguel & Co., No. 3, and in the assets of said firm prior to the dissolution thereof, and prior to suit brought, and as to the defendant, George Eckert, who never was a member of the firm of Raiguel & Co. No. 3, the bill be dismissed with their respective costs : and that as to the defendant, Edward G. James, he be perpetually enjoined from in any manner interfering with, or collecting or attempting to collect from Raiguel & Co., No. 3, or from any one or more of the partners thereof, any of the assets of said firm, by virtue of said sheriff’s sale to him December 2d 1861, of the right, &c., of John L. Wentworth in the firm of Raiguel & Co., No. 3, and that the said Edward G. James pay his own costs. The defendants, William E. Smith and Benjamin Bentley, not having appeared or answered, it is not for the master to report any action in respect to them.”</p> <p>W. Raiguel, Moore, Skillman, Whitby and Kintzle filed twenty-eight exceptions to the master’s report, amongst them were the following:—</p> <p>22. Reporting that no decree should be made in favor of complainant, and that he it not entitled to have an account stated by the master in this case, because John J. Ulp has not been made a party, plaintiff or defendant — it appearing from the complainant’s bill, that said Ulp was a member of the three firms of Raiguel & Co., No. 1, No. 2, and No. 3.</p> <p>24. Reporting a joint decree against William Raiguel, Samuel Moore, William G. Skillman, James M. Whitby, Christian Kintzle, Edward A. Adams and Henry P. Atkinson; and in not finding and reporting some specific sum, or sums (if any) to be due by or to each of them.</p> <p>25. Reporting that the entire balance, stated in the report to be clue to John L. Wentworth, should be paid by the defendants last above named, without taking into consideration the proportions thereof, which should he charged against John J. Ulp, who was a member of the several firms of Raiguel & Co., hut was not made a party to these proceedings, and also, the proportions thereof which should be charged to Augustus Raiguel, George Eckert, William F. Smith and Benjamin Bentley, the other defendants to this bill.</p> <p>27. Reporting that the defendants, William F. Smith and Benjamin Bentley, not having appeared or answered, it is not for the master to report any action in respect to them; whereas, the said master should have reported that they being parties defendant, jointly with the other defendants, no account or decree could be stated or made without joining them therein, and that therefore, there not appearing from the record to have been any decree pro eonfesso or otherwise, against said Smith and Bentley, the master could not report any action in respect to any of the defendants.</p> <p>Exceptions were filed by other defendants also.</p> <p>The court (Sharswood, J.) sustained the twenty-seventh exception of Raiguel & Co.</p> <p>Smith and Bentley appeared and filed an answer (as heretofore stated), the cause was referred back to the master and all other questions reserved till the coming in of the report.</p> <p>In his second report, the master said: * * *</p> <p>“ That as to the defendant, William F. Smith, he having assigned and transferred his interest in the several firms of Raiguel & Co., prior to the dissolution.of the firm of Raiguel & Co., No. 8, and prior to suit brought, the bill be dismissed with costs; and that as to the defendant, Benjamin Bentley, his assignment and transfer of his interest in said several firms of Raiguel & Co., having been subsequent to the filing of the bill, cannot affect his position or the rights of the plaintiffs, and that consequently, in accordance with the findings and conclusions of the master in his original report, the said Benjamin Bentley should, with the defendants, William Raiguel, Samuel Moore, William G. Skillman, James M. Whitby, Christian Kintzle, Edward A. Adams and Henry P. Atkinson, be decreed to pay to Catharine H. Went-worth, Mark H. Wentworth and George J. Wentworth, executors of Eben Wentworth, deceased, the sum of $18,731.66, with interest on $15,852.68 from January 1st 1868 till paid, and also with said other defendants named, to pay said executors from time to time as collected, 8§ per centum of the proceeds of the assets of the firm of Raiguel & Co., No. 3, which remained uncollected upon the twenty-ninth of September 1866, together with costs of suit.”</p> <p>After the coming in of this report the opinion at Nisi Prius was delivered February 4th 1871.</p> <p>Sharswood, J.: “ When this ease was here before on these exceptions, I sustained the twenty-seventh exception filed on behalf of William Raiguel and others; and as it appeared that two of the defendants had neither appeared nor answered, I refused to consider the other exceptions until these parties were disposed of on the record. That difficulty being now out of the way, the cause has been very fully heard upon all the points. I deem it altogether unnecessary to go into an extended discussion upon them. The learned master has saved me that labor, and I adopt his reasoning and conclusions, and dismiss all the exceptions except the twenty-second, twenty-fourth and twenty-fifth, on behalf of William Raiguel et ál. I think John J. Ulp must be made a party to these proceedings, which on motion the plaintiff will have leave to amend his bill for the purpose of doing. It is certainly not in the power of a partner, by an assignment to another partner, or a stranger, to divest himself of his indebtedness to the firm at that time, unless it appears that the other members of the firm agreed to release him, and to accept his assignee in his place. Nor are the members of a co-partnership liable to each other in solido: Whelen v. Watmough, 15 S. & R. 153; McFadden v. Sallada, 6 Barr 287. A decree against the members of the firm in favor of the plaintiff for the whole balance due him by the co-partnership would not make them so. They are not,sureties for each other’s solvency, or if they are, the plaintiff is equally so with them. Upon a final settlement of a partnership account, it must be described how much each partner owes to each, unless by agreement it be dispensed with. The principle and mode are very clearly stated in Bindley on Partnership 828.</p> <p>“ The twenty-second, twenty-fourth and twenty-fifth exceptions filed on behalf of William Raiguel sustained, and all the others dismissed.</p> <p>“ The plaintiff allowed to amend his bill by making John J. Ulp a party, and after the case shall be at issue as to him to be recommitted to the master.”</p> <p>The master afterwards further reported:— * * *</p> <p>“ The duty of the undersigned upon the recommitment according to his understanding of the decision of the court upon the exceptions which were sustained, is to ascertain and report what proportion of the sum found due to the plaintiffs is to be charged against and decreed to be paid by each of the defendants, and what, if anything, is to be paid by either or any of the defendants to any of the others.”</p> <p>The master then made some slight changes in his statement of the account and found that the value of the interest of John B. Wentworth in the firm of Raiguel & Co., No. 3, on the 1st of July 1872, was $23,161.76, with interest on $16,189.87, part of that sum from that day, together also with his proportionate part, being 9S27 per cent, of the uncollected assets; that the amount due on his indebtedness to Eben Wentworth’s estate at the same date, was $18,908, with interest from that time on $10,749.34, the balance unpaid of the principal of the original debt. He proceeded:—</p> <p>“ Under the decision of the court it remains to be determined what proportion of the sum found as the value of the interest of John L. Wentworth in No. 3, is to be paid to the executors of Eben Wentworth, deceased, by each of the partners.”</p> <p>The master found that the interests of the partners were in the following proportions :—</p> <p>Augustus H. Raiguel ..... 23§?</p> <p>Samuel Moore ....... 191?</p> <p>W. Gr. Skillman and John L. Wentworth, each 9B27 1834v</p> <p>J. M. Whitby, B. Bentley, C. Kintzle, each . 21gs7</p> <p>John J. Ulp.......</p> <p>E. A. Adams and H. P. Atkinson, each 5f? . 11||</p> <p>William Raiguel was to receive $8000 per annum in lieu of any of the profits, to be deducted before any division of profits was made amongst the other partners.</p> <p>The master, with much elaboration and detail, stated the manner in which the account of John L. Wentworth had been kept as between firms No. 2 and No. 3, the account treating him as a member both of No. 2 and No. 3, and Adams and Atkinson as members of only No. 3. Adams and Atkinson received their proportion of the balance of the assets of No. 3, collected by Raiguel, Moore & Co., after payment of the debts of No. 3, the remainder was debited on the cash-book as if so much cash had been received from No. 2, in part payment of their indebtedness to No. 3, and then credits were entered on the cash book, and debits entered to the individual partners’ accounts in the ledger of No. 3 in proportion to their interests. The account of No. 2 on the ledger of No. 3 was credited with the amounts debited on the cash books. “ The practical effect was that so much of the debt of No. 2 to No. 3, as was represented by the aggregate sums thus charged to the respetive partners, exclusive of cash paid and charged to Adams and Atkinson, appeared on the books as paid and discharged, although no cash actually passed in the transactions. And this would have been unobjectionable, if all the parties so charged on the books of No. 3 had actually been partners in No. 2 and No. 1. But it is quite another thing as regards a party who never was a partner in No. 2 and never appeared as such until the opening of the account in 1865, styled ‘ The J. L. Wentworth Interest Account’ (long after this suit was brought), where he is treated in this manner and the cash to a proportion of which he was actually entitled with Adams and Atkinson is divided between them only and he attempted to be satisfied with the dry husks of an arbitrary, and so to speak, ex post facto, book-keeping, by which his just share is deliberately appropriated to the reimbursement of sums which had long before been paid to him absolutely as salary and towards the payment of a debt for which he was not only in no way liable but to a proportion of which when paid he was actually entitled as a member of the firm to which it was due. * * *</p> <p>“ The ‘John L. Wentworth Interest Accounts’ on the hooks of No. 1 and No. 2 were opened on the assumption that Wentworth being a partner and interested in the firms to extent of 8 per-cent, and 6 per cent, respectively, was liable to make good in corresponding proportions the losses or deficits in the profit and loss accounts of these firms; and the $2500 per annum which Wentworth had drawn on his salary under the agreements with William Raiguel, were in making up these ‘JohnL. Wentworth interest accounts’, treated as so much drawn on account of these percentages, and consequently — since no profits had been made by these firms — as being overdrafts which he was hound to make good. * * *</p> <p>“ Then it is of the utmost importance to recall the fact that there was no question, of losses arising out of a deficiency of assets to meet liabilities to creditors. The deficiencies or debtor balances in No. 1 and No. 2, arose entirely from overdrafts by the other partners, and they alone were bound to make good these debtor balances in proportion to their overdrafts. There was nothing for Wentworth to make good, even if he had been a partner, as between himself and the others ; and under the facts in the case it was a matter entirely inter sese, there being no question as to liability to third parties. * * *</p> <p>“All the indebtedness of No. 2 and No. 1, except that of No. 1 to No. 2 and No. 2 to No. 3, had been paid by the last firm as well as its own debts prior to any distribution being made to the individual partners of No. 3. The amounts therefore which were debited to J. L. Wentworth’s individual account on the books of No. 3, were treated by his co-partners as so much actual cash, and instead of being paid to himself or his assignees, who were entitled to receive the amounts, they were actually appropriated under the assumption that he was a partner or interested in No 1 or No. 2 to making good his assumed overdrafts and liability for contribution to the debtor balances in these former firms and consequently to the relief or benefit pro ratá of those of them who were really and in fact partners in the former firms. * * *</p> <p>“ The amounts credited to ‘ The J. L. Wentworth Interest Account,’ on the books of No. 1, were really carried by anticipation on the 30th of September 1865 to the discharge or reduction of the indebtedness of that firm to No. 2, and consequently the actual receipt and benefit of all these moneys was realized by No. 2, as a firm; and the practical effect is the same as if the aggregate of the amounts credited in the periodic distribution on the cash-book of No. 3, as credited to the respective parties on the books of No. 1, including the amount so credited to ‘ The J. L. Wentworth Interest Account,’ had been debited on the cash-book of No. 3 as if received direct from No. 2. If the indebtedness of No. 1 to No. 2 had not, by the entry on the cash-book of No. 2 above mentioned, been cancelled and discharged, there would have been a deficiency of just so much in No. 2 to meet the indebtedness of No. 2 to No. 3. These are all to be treated as transfers to No. 2, and-as jointly appropriated by those partners in No. 3, who were partners in No. 2, to meeting the indebtedness of the latter to the former, and these partners must account for the sums so appropriated. But account for them in what manner ? In proportion as they were eventually actually carried to their respective credits as individuals composing the firm of Raiguel & Co., No. 2 — or in solido as jointly and severally liable for the whole amount ? The credits from time to time on the cash-book of No. 3, were given to No. 2, as a firm, and so much of the indebtedness of that firm, not the indebtedness of the individual partners therein, to No. 3, was thereby from time to time settled and discharged. It was treated and credited as cash and was in effect so much cash appropriated in solido by the partners in No. 3, who were partners in No. 2 from No. 3, to the cancellation or payment of so much of the indebtedness of No. 2, as a firm to No. 3. * * * With the distribution or crediting or appropriation of this amount amongst the partners of No. 2, after that firm had received it, Wentworth, who was not a partner in that firm,'could not interfere and had nothing to do. The crediting to the individual partners of No. 3, on the cash-book of No. 3, * * * merely serves to show what portion of the sums thus appropriated belonged to the other partners and what to Wentworth’s interest; and for this latter portion the partners in No. 3, who composed No. 2, and who as a joint body or firm received the amount so appropriated are in the opinion of the master liable and must account in solido. * * *</p> <p>“ As the accounts of the partners of No. 3 have been made proportionate as respects all other items of debit and credit, so that nothing else remains to be settled between the partners, irrespective of the amount due on account of J. L. Wentworth’s interest in No. 3; and as the other partners have been properly debited and credited in respect to the amounts included in the monthly distributions, a decree on the principles as above indicated will make a final accounting between all the partners. The uncollected assets will of course have to be distributed from time to time as received in the proportions indicated by the master. When these shall have all been collected and distributed and the amounts paid which may be due under a final decree in this case, the books can be closed.” * * *</p> <p>The master reported as his conclusions on the whole case:—</p> <p>1. That John L. Wentworth was not a partner in the firms No. 1 and No. 2, and is not liable for any deficiencies in those firms.</p> <p>2. That there was no deficiency of assets to pay the debts of either of those firms; that any deficiency for the payment of the indebtedness of No. 1 to No. 2, and No. 2 to No. 8, arose from overdrafts of the partners; that Wentworth made no overdrafts in either firm and had he been a partner, he could not, as between himself and those who were members, be called on to contribute to make up the deficiencies or pay their indebtedness to the succeeding firms.</p> <p>3. 4. That John L. Wentworth’s interest in No. 3 passed to the executors of Eben Wentworth, deceased, by the assignment of June 25th 1861; and that this assignment was unaffected by the sheriff’s sale under Mott’s judgment, and that the purchaser or his assignee, Moore, took nothing by that sale.</p> <p>5. That the value of John L. Wentworth’s interest in No. 3 was $23,161.79, with interest on $16,189.87, part of it, from July 1st 1872, with his proportionate part, 9^ per cent, of the uncollected assets.</p> <p>6. That the defendants, W. Raiguel, Moore, Skillman, Whitby, Bentley, the executrix, &c., of A. H. Raiguel, the executors, &e., of Kintzle, and the administratrix, &c., of UIp, be decreed to pay to the executors, &c., of Eben Wentworth, the sums, &c., stated in the foregoing paragraph with costs.</p> <p>7. That W. Raiguel, Moore, Skillman, Whitby, Bentley, Adams and Atkinson pay to the executors, &c., of Eben Wentworth, dec’d, from time to time as collected 9-^ per cent, of the proceeds of the assets of No. 3, which were uncollected September 30th 1871, and that Adams and Atkinson pay their own costs.</p> <p>8. That as to W. E. Smith and the administrator, &e., of George Eckert, who was never a member of No. 2 or No. 3, the bill be dismissed with costs.</p> <p>9. That Moore, the assignee of James, and the administrator, &c., of James, be enjoined from collecting, &c., from the firm No. 3, or any of its partners, any of the assets, &c., of that firm ; and that Moore and the administrator, &c., of James, pay their own costs.</p> <p>A number of exceptions to the master’s report were filed by the defendants against whom decrees were recommended.</p> <p>After argument, the court at Nisi Prius dismissed all the exceptions and confirmed the report.</p> <p>The opinion was delivered February 8th 1873.</p> <p>Sharswood, J. — “When this case was before me on exceptions to the first report of the master, I dismissed all the exceptions but the twenty-second, twenty-fourth and twenty-fifth. The administratrix of Ulp having been made a party and filed an answer, that defect in the proceedings is supplied. The other two exceptions were grounded upon the objection that the master had reported an account of the plaintiff with the firm of Raiguel & Co., No. 3, of which firm alone he was found to be a member, had recommended a decree in his favor, against the other members of that firm, and had not made a final settlement of the partnership, by ascertaining the balances due by and to each partner separately. I saw then nothing on the face of the report which ought to vary the rules which seem to be well settled in regard to partnership accounts generally. It was accordingly referred back to the master to reconsider and report as to these matters.</p> <p>“ Upon his supplemental report, he finds very distinctly, and there is no evidence before me upon which I can re-examine that finding, “that nothing else remains to be settled between the partners, irrespective of the amounts due on account of John L. Wentworth’s interest in No. 3.” He has also found, that this indebtedness of the firm of Raiguel & Co., No. 3, to John L. Went-worth, arose entirely from misappropriation by the other members of the firm, who were members of the firm No. 2, of the assets of No. 3, to the payment of the debts of No. 2. He hence draws the conclusion, that the members of No. 2, who are members of No. 3, are liable to the plaintiff in solido. It would follow that justice could be done in no other way, than by a decree against the defendants in solido, and until one or more of these defendants pay this amount, thei’e can be no decree as between themselves, settling their respective contributory shares. That must be left to a subsequent proceeding.</p> <p>“ If these facts were stated in the former report, I failed to extract them from it, or- they were not distinctly brought to my notice. They very much affect the view to be taken of the case. To simplify the matter; if the assets of a firm of A., B. & C., are applied to pay the debts of a former firm of A. & B., without the consent of C., it would seem that, as A. & B. would be liable to answer in solido to the firm of A., B. & C., A. & B. must in equity be held in solido to O. for his share of such debts. Prior to the Act of April 14th 1838, Pamph. L. 457, the firm of A., B. & O. could not have maintained an action at law against the firm of A. & B. The appropriate remedy of C. would have been a bill to account. If, as the master reports, all other accounts between the members of the firm of A., B. & O. have been settled, except what grows out of this misappropriation of the assets of A., B. & C. to the injury of 0., I see no objection to such a decree as will do justice between the parties. I observe that the bill distinctly avers the fact of the misappropriation. It follows, that until either A. or B. pay this debt for which they are jointly and severally liable, what they respectively owe each other, cannot be ascertained and settled. The Act of 1838, which gave the remedy at law, did not take away the previously existing remedy in equity.</p> <p>“ On the whole, then, I have come to the conclusion to dismiss these exceptions, and confirm this report.”</p> <p>The following are the material parts of the decree : — ■</p> <p>3. That the defendants, William Raiguel, Samuel Moore, William G. Skillman, James M. Whitby, Benjamin Bentley, Anna M. Raiguel, executrix of Augustus H. Raiguel, deceased, Mary Ann Kintzle and Charles W. Otto, executors of Christian Kintzle, deceased, and Harriet K. Ulp, administratrix of John J. Ulp, deceased, do pay to the plaintiffs, Catharine II. Wentworth, Mark H. Wentworth and George J. Wentworth, executors of Eben Wentworth, deceased, the sum of $23,747.31 (being the sum of $23,161.77, together with interest on the sum of $16,189.87, part thereof from the 1st July 1872, to the date of this decree), together with the costs of this suit</p> <p>4. That the defendants, William Raiguel, Samuel Moore, William G. Skillman, James M. Whitby, Benjamin Bentley, Edward A. Adams and Henry P. Atkinson, do pay to the said plaintiffs, Catharine II. Wentworth, Mark II. Wentworth and George J. Wentworth, executors of Eben Wentworth, deceased, from time to time, as collected, per cent, of the proceeds of the assets of the firm of Raiguel & Co. No. 3, mentioned in the bill, which remained uncollected on the 30th September 1871; and that the said defendants, Edward A. Adams and Henry P. Atkinson, pay their own costs.</p> <p>5. That the defendants, William S. Mann, administrator of Edward G. James, deceased, and Samuel Moore, assignee of Edward G. James, be perpetually enjoined from in any manner interfering with, or collecting or attempting to collect, from the said firm of Raiguel & Co., No. 3, or from any one or more of the partners thereof, any of the assets or profits of the said firm, or any proportion or share of such assets or profits, under or by virtue of the said sheriff’s sale to said Edward G. James on December 2d 1861, of the right, title and interest of John L. Wentworth in the said firm of Raiguel & Co., No. 3; and that the said William S. Mann, administrator of Edward G. James, and the said Samuel Moore, as assignee of said Edward G. James, pay their own costs.</p> <p>W. Raiguel, Moore, Skillman, Whitby, the executrix, &c., of A. H. Raiguel, the executors, &e., of Kintzle, Adams and Atkinson appealed to the Supreme Court in banc.</p> <p>They assigned'eighty-one errors, covering in detail all the disputed questions ruled against them by the master’s report.</p>

<p>1. A testator gave the residue of his estate to his executors in trust to pay the net income to his wife, “ so long as she shall remain my widow and my children shall be under age, to be used and applied by her to the maintenance, support and education of my children who may be under age, but without being called upon to give any account of the manner in which she may have applied it, as it is my wish that she shall have the absolute contx-ol of its use and disposition so long as she shall remain my widowHeld, that this c]id not create a sub-trust in the wife, but was only an expression of confidence in her as to the use and disposition of the income.</p> <p>2. The income was to be paid to her without legal responsibility for its useand disposition, with absolute control and without being called to give any account of her application of it.</p> <p>3. The wife could not be called to account unless she should be guilty of malversation.</p>

<p>Appeal from the decree at Nisi Prius : Of January Term 1868, In Equity.</p> <p>On the 7th of January 1868, the Junction Railroad Company filed a bill against the Pennsylvania Railroad Company and J. Edgar Thomson, president of said company.</p> <p>On the 3d of May 1860 (Pamph. L. 780), an Act of Assembly was passed incorporating J. Edgar Thomson, George O. Franciscus, S. M. Felton, Asa Whitney, J. Dutton Steele, Marshall B. Hickman, H. Jones Brooke and Morris S. Wickersham and those who might be associated with them by the name of the Junction Railroad Company subject to the General Railroad Law of February 19th 1849. The company was authorized to construct a railroad from “a point upon the Philadelphia and Reading Railroad, at or near the bridge of said company near Peters’ Island, in the river Schuylkill; thence by the best route to a point upon the line of the Pennsylvania Railroad, within one mile east of George’s Run, at the village of Hestonville; thence by the line of the Pennsylvania Railroad, by the most direct and practicable route, to a point upon the line of the Philadelphia, Wilmington and Baltimore Railroad.” _</p> <p>The act provided that the company be managed by five directors, of whom one should be president; the capital to consist of 5000 shares of $50 each; the company was authorized to borrow $300,000 and issue bonds for that amount bearing interest at 7 per cent, per annum, and secure the loan by mortgage on “all the corporate rights, franchises, property real and personal of whatsoever kind belonging to said company.”</p> <p>A supplement passed March 23d 1861 (Pamph. L. 177), authorized the Junction Railroad Company “ to connect their road with the road of the Pennsylvania Railroad Company, at or near the West Philadelphia Waterworks in the city of Philadelphia, to use the roadway of the Pennsylvania Railroad and of the West Chester and Philadelphia Railroad, or either of them, with the consent of such companies respectively, and construct a road to connect them or either of them with the Philadelphia, Wilmington and Baltimore Railroad, at or near Gray’s Ferry, or may construct the whole or such parts of their railroad as may be needful, with or without the use of one or both of the roads of the companies aforesaid, to make a complete line of railway from a point on the Philadelphia and Reading Railroad, at or near the bridge at Peters’ Island, to a point on the Philadelphia, Wilmington and Baltimore Railroad, at or near Gray’s Ferry Bridge, by tbe most convenient and practicable route.”</p> <p>The company were afterwards authorized to borrow money to the amount of $500,000.</p> <p>The plaintiffs organized and proceeded to carry out the objects of the acts of incorporation and its supplement. They constructed a railroad from a point on the Philadelphia and ReadingRailroad to Haverford street, and also from the north side of Market street to a point on the Philadelphia, Wilmington and Baltimore Railroad at or near Gray’s Ferry. Between the north side of Market street and Haverford street the ground belonged to the Pennsylvania Railroad Company, being what is called that company’s “yard;” the road on this portion of the line was actually made by the Pennsylvania Railroad Company, they paying the cost of materials, labor and all costs of construction.</p> <p>The question in the case was whether this portion of the road was built for the plaintiffs or whether it remained the property of the Pennsylvania Railroad Company.</p> <p>The bill set out:—</p> <p>1, 2, 3. The Acts of Assembly of 1860 and 1861, under which the plaintiffs were incorporated, &c.</p> <p>4. The stock of the Junction Railroad Company, except a few shares issued to individuals, was subscribed for and was held by the Pennsylvania Railroad Company, the Philadelphia, Wilmington and Baltimore Railroad Company, and the Philadelphia and Reading Railroad Company, in equal, or nearly equal proportions.</p> <p>5. The presidents of the three railroad companies had always been members of the board of directors of the Junction Railroad Company since their organization; J. Edgar Thomson, president of the Pennsylvania Railroad Company, was elected president of the Junction Railroad Company on the 3d day of October 1861, and retained the office until the 27th day of April 1867, when Isaac Hinckley, president of the Philadelphia, Wilmington and Baltimore Railroad Company, was elected in his stead.</p> <p>6. After the passage of the Act of 1861, complainants determined to construct a distinct and independent railroad between a point on the Philadelphia and Reading Railroad, at or near the bridge at Peters’ Island, and a point on the Philadelphia, Wilmington and Baltimore Railroad, at or near Gray’s Ferry Bridge, and proceeded to have the necessary surveys, plans and profiles made to indicate the route of their road between these termini; this route was actually located on the ground before the month of April 1862.</p> <p>7. The location originally selected for that portion of the railroad, extending from the terminal point on the Philadelphia and .Reading Railroad, near the bridge at Peters’ Island, to Haverford street, was afterwards modified by the direction of the board of surveyors of the city of Philadelphia, from the point where the latter line diverges from a point on Thirty-eighth street, to the common terminus at Haverford street; the location, as altered, was approved by the board of surveyors, on the 21st day of April 1862, and the alteration was adopted by the directors of the Junction Railroad Company, on the 3d day of May 1862.</p> <p>8. The location originally selected for the portion of the railroad, from Haverford street to the point near Gray’s Ferry, adopted for the connection of the said railroad with the Philadelphia, Wilmington and Baltimore Railroad, was submitted to the board of surveyors and_ approved by them on the 21st day of April 1862; afterwards some slight alterations were made in the alignment of the said location, south of Spruce street, with the approval of the board of surveyors ; the entire line from Haverford street, as thus altered, was approved by the said board of surveyors, on the 8th of December 1862, and adopted by the directors of the Junction Railroad Company, on the 10th of the same month.</p> <p>The whole route as above stated was indicated in a plan attached to the bill.</p> <p>9. The plan was a reduced copy of the two official plans on file in the office of the said board of surveyors, showing the entire route of the complainants’ railroad, from its connection with the Philadelphia and Reading Railroad, near the bridge at Peters’ Island, to its connection with the Philadelphia, Wilmington and Baltimore Railroad, near Gray’s Ferry Bridge; and the right to use the location for a railroad, became vested in the Junction Railroad Company, exclusively, on the adoption and approval of the said location.</p> <p>10. The order of the directors to place the road according to that route under contract.</p> <p>11. The work proceeded under the direction of the president and chief engineer of complainants, who were president and chief engineer of the Pennsylvania Railroad Company.</p> <p>12. In November 1863, the progress of the work, north and west of Haverford street, had been such as to permit a connection to be made at a point east of Thirty-fifth street, between the Pennsylvania Railroad and a single track of the Junction Railroad extending to that point from the Philadelphia and Reading Railroad ; this connection was temporarily made to provide, as soon as possible, a continuous route from the Philadelphia and Trenton Railroad, via the Philadelphia and Reading Railroad, the track of the Junction Railroad Company, the Pennsylvania Railroad, the Philadelphia and West Chester Railroad, the Delaware Extension of the Pennsylvania Railroad crossing the Schuylkill at the Arsenal bridge, to the Philadelphia, Wilmington and Baltimore Railroad, on Washington street, on the eastern side of the Schuylkill ; and it was intended to be dispensed with on the completion of the Junction Railroad.</p> <p>• 13. In December 1864, a track of the Junction Railroad from Gray’s Ferry to the Philadelphia and West Chester Railroad was completed and connected with the latter road, enabling trains to pass entirely on the west side of the Schuylkill river, from the Philadelphia and Reading Railroad to the Philadelphia, Wilmington and Baltimore Railroad, at Gray’s Ferry, without using any part of the Delaware Extension of the Pennsylvania Railroad.</p> <p>14. In August 1866, the track of the Junction Railroad, south of Haverford street, was completed, thus making a continuous railroad from Peters’ Island to Gray’s Ferry, excepting only the distance between the point of connection with the Pennsylvania Railroad, east of Thirty-fifth and Haverford streets; soon after-wards the road was somewhat altered, so that the Philadelphia and West Chester Railroad might be crossed in a manner less objectionable ; and since then no part of the railroad of any other company has been used from one terminus of the Junction Railroad to the other, excepting only the tracks of the Pennsylvania Railroad, between the points aforesaid.</p> <p>15. Complainants fully understood and believed fhat the delay in extending the Junction Railroad track from Haverford street to the point east of Thirty-fifth street, above named, was owing to the intention of the Pennsylvania Railroad Company to alter the location of their main tracks, so that the Junction Railroad might occupy, in whole or in part, the position now occupied by the track of the Pennsylvania Railroad next to the river.</p> <p>16. Some time after the line of the Junction Railroad, except as aforesaid, had been completed, complainants learned that the Pennsylvania Railroad Company claimed that the section of the said railroad extending from Haverford street to Market street, had been constructed by the Pennsylvania Railroad Company, and for their own use ; that it belonged exclusively to them, and that the Junction Railroad Company had no interest in it; that it was partly the Pennsylvania Railroad proper and partly the Delaware Extension of that railroad — the latter being the name given to the railroad constructed on the location of the Junction Railroad from Haverford street to Market street. This claim led to a protracted negotiation in which complainants failed to' induce the Pennsylvania Railroad Company to recognise any right of the Junction Railroad Company in the said road; the Pennsylvania Railroad Company refused, and still did refuse, to permit the Junction Railroad Company to run locomotives on or over the said section of road, or to complete the construction of the Junction Railroad between its present connection with the Pennsylvania Railroad east of Thirty-fifth street and Haverford street. The Junction Railroad Company had spent over $870,000 in the construction of their road; the road was constructed in the most substantial manner, with every appliance of a first-class railroad; it was intended for the interchange of passengers and freight between the great railroads converging towards the city of Philadelphia, on the west side of the Schuylkill river, and to relieve the streets of the city on the east side of the river from the passage of cars between the said railroads; the capital and credit of the Philadelphia and Reading Railroad Company, the Philadelphia, Wilmington and Baltimore Railroad Company, and the Pennsylvania Railroad Company were jointly contributed towards the construction of the road, with the expectation that each of them should have an equal share in its management and control; the attempt of the Pennsylvania Railroad Company to appropriate the middle section of the said road, would prevent the Junction Railroad Company from carrying on the business of a transporting company at all, to a great extent defeat the objects for which the said railroad was constructed, and give to one corporation the absolute control of the interchange and delivery of the freight, mails and passengers brought to the Junction Railroad by the several roads with which it is connected. The most expensive work on the line of the Junction Railroad is a tunnel under Market and Chestnut streets; the approach ■ to this ■ tunnel through a deep cut, is completely occupied by the tracks of the railroad passing into and through it; and if the Junction Railroad Company are compelled to relinquish the section of their railroad north of the tunnel, they cannot possibly select a new location on which they can build a railroad leading into the tunnel.</p> <p>17. Complainants have issued and sold bonds of the Junction Railroad Company to the amount of $800,000, secured by mortgages of the entire railroad property and franchises of the company ; many persons were induced to purchase these bonds by representations that the railroad mortgaged was located and built as a continuous and complete railroad from the Philadelphia and Reading Railroad, at the bridge near Peters’ Island, to the Philadelphia, Wilmington and Baltimore Railroad, at Grray’s Ferry, and complainants have been formally required by the holders of many of these bonds to protect their rights.</p> <p>The prayers were for a decree :—</p> <p>1. That the complainants were entitled to the exclusive owner ship and use of the railroad, especially the part north of the tunnel at Market street, &c.</p> <p>2. That they were entitled to construct their road on the location shown by the plan from its connection with the Pennsylvania Railroad near Thirty-fifth street to Haverford street.</p> <p>3. That the Pennsylvania Railroad Company, their officers, &c., be restrained from interfering with the rights of the complainants, &c., and from hindering them, their officers, &c., from completing the railroad or in using the road now or hereafter constructed for the passage of engines, cars, &c.</p> <p>4. For futher relief.</p> <p>The defendants answered:—</p> <p>1-5. Admitting the allegations of these paragraphs.</p> <p>6, 7, 8. After the passage of the original act of incorporation, a survey was made of the route described in said act, by J. Dutton Steele, at that time chief engineer of the Philadelphia and Reading Railroad Company; who, on the 9th of July 1860, made report to the complainants recommending, as an economic yet effective measure, the connection of the three roads, by using the intervening portions of the Pennsylvania Railroad and the West Chester and Philadelphia Railroad, and that further legislation to effect that purpose should be obtained; the supplementary Act of March 28d 1861, was obtained, in accordance with the suggestions of this report, whereby the charter of complainants was modified, and the construction of their road, so as to connect its detached portions by the use of intervening lines, was authorized. Thus in fact was the road actually constructed, and its connections made ; they admitted that complainants did cause surveys to be made, and locations to be plotted on paper, for an entire and connected line of independent road, extending from the line of the Reading Railroad Company at Belmont, to that of the Philadelphia, Wilming ton and Baltimore Railroad Company, at Gray’s Ferry; and that they did submit such surveys to the hoard of surveyors of Philadelphia, who, after certain modifications, approved the same ; and that these surveys were acted upon and approved by the directors of the complainants.</p> <p>9. They denied that either by said surveys, or by the plans prepared therefrom, or by their filing in the office of the board of surveyors, and being approved by said board, or by any action of the directors of the complainants or in any other way, had complainants acquired any right to use that part of said location which was upon and through the grounds of the Pennsylvania Railroad Company. The grounds of said company, through which said alleged location extended, constituted part of the depot grounds of the company at the West Philadelphia terminus of the road, and were duly acquired by authority of law for such uses, and are necessary and requisite for the due enjoyment and execution of the franchises of the corporation, and could not be taken from it or placed under the control of another corporation, without great and serious injury to defendants’ rights and interests, nor without defendants’ consent; no such consent had ever been given, nor had any compensation ever been made or offered for the taking of such location through defendants’ grounds, even if a right to the same could thus be acquired against their will, which they expressly denied to be the case.</p> <p>10, 11. They admitted the allegations in these paragraphs.</p> <p>12. They admitted the averments in this paragraph as to the making the railroads connecting, &c., but denied that the use of the tracks from the connection at Haverford street, through the depot grounds of the Pennsylvania Railroad Company, to the north side of Market street, was intended to be temporary, and to be dispensed with, by the continuance of an independent line of the Junction Railroad Company through the said grounds, if thereby it was meant that the Pennsylvania Railroad Company or its officers were so informed, or had so agreed, or that, as against said company, any such right had in any way been acquired. They averred that from the time of such connection, said tracks had 'been used by complainants from that point to the north side of Market street, they paying therefor a stated compensation, according to an established rate, in accordance with which monthly settlements and payments had been regularly made; and the business had been thus transacted, safely and conveniently for both parties, without hindrance, delay or embarrassment, and in a manner that was just and equitable to all.</p> <p>13, 14. They admitted the allegations in these paragraphs; the entire length of the road being 24,400 feet, or about 4T($! miles, consisting of 10,200 feet of track of Junction Railroad, extending from its connection with the Philadelphia and Reading Railroad at Belmont, to its connection with the line of the Pennsylvania Railroad near Haverford street; or 5150 feet of tracks belonging to the Pennsylvania Railroad Company, extending from that point to the north side of Market street; and of 9050 feet of Junction Railroad track, from that point to the connection at Gray’s Ferry with the line of the Philadelphia, Wilmington and Baltimore Railroad .Company.</p> <p>15. The defendants had no information of the understanding stated in this paragraph, but if it existed, it was not authorized by or founded upon any action of the Pennsylvania Railroad Company.</p> <p>16. They claimed that the line of railroad which connected the north side of Market street with Haverford street, was their property ; it passed through their grounds, and was built with their money; but they had at all times cheerfully afforded complainants safe, speedy and convenient transit over it, receiving a reasonable compensation. This portion of the road extended through their depot grounds, the possession and control of which was imperatively required for the proper and safe enjoyment and execution of their franchises, and could not be taken from them without endangering the security of the persons and property carried by them. This possession and control of defendants was perfectly consistent with the safe and convenient transaction of all their business by complainants, and had been found to be so by actual experience. It was precisely such as was recognised in, and was contemplated by, the supplement of March 23d 1861, which, while it authorized the construction of an entire and connected line, permitted, and contemplated, the use of portions of intervening lines.</p> <p>The Pennsylvania Railroad Company insisted that all the grounds, connected with, appertenant to, and useful for their depot arrangements were covered by the franchises of their company, and were in truth a part of their location; and didin this instance, in fact and in law, constitute a prior location on their part, since the same were selected, acquired,, and located by thém, for their railroad uses, many years prior to the pretended location of complainants.</p> <p>17. They denied the averment of this paragraph.</p> <p>A replication was filed, and R. A. Willson, Esq., was appointed examiner.</p> <p>The evidence shows as follows:—</p> <p>At a meeting of the incorporators, held August 1st 1861, they accepted the Act of March 23d 1861, and also the Act of April 23d 1861, authorizing railroad companies whose roads are connecting to hold the stock or bonds of each other. At the same time, stock in the Junction Railroad Company was subscribed for. J. Edgar Thomson, who was president of the Pennsylvania Railroad Company, S. M. Felton', who was president of the Philadelphia, Wilmington and Baltimore Railroad Company, and Asa Whitney, each subscribed for 170 shares; Charles E. Smith, who was president of the Philadelphia and Reading Railroad Company, and J. Dutton Steel subscribed for three shares each. The five persons above named were chosen directors, and they afterwards elected Mr. Thomson president of the company, and Joseph Lesley, secretary. At the,same meeting, the president was authorized to issue' bonds to the amount of $300,000, to be secured by a mortgage on the railroad, and to be guarantied by the three companies. Subsequently a line of road was submitted by the engineer, J. A. Wilson; this line commenced on a line previously located at a point some distance from the north end, crossed Haverford street, and crossing the tracks of the Pennsylvania Railroad, .300 feet west of the head of the West Philadelphia “yard,” passed to the south side of that road, &c., the tangent, south of Haverford street, being so located as to run clear of the (present) tracks of the Pennsylvania Railroad. On the 28th of December 1861, that portion of this line, from about Haverford street to Peters’ Island (on the Philadelphia and Reading Railroad) was adopted, and on the 4th of April 1862, contracts for grading the road north from Haverford street were awarded.</p> <p>Mr. Wilson in his testimony said that the Junction Railroad as built under his direction commenced on the Philadelphia and Reading Railroad near the Columbia bridge, ran south and connected with the Pennsylvania Railroad near Fairmount, being near Thirty-fourth street; it then extended from the north side of Market street southward to the Philadelphia, Wilmington and Baltimore Railroad near Gray’s Ferry, and was intended to connect with the Pennsylvania Railroad at the north side of Market street.</p> <p>At the annual meeting of the stockholders of the Pennsylvania Railroad Company, held February 8d 1862, the directors reported that the three companies had organized the Junction Railroad Company, the object of which was to connect these railways by a continuous line from the Reading Railroad near Peters’ Island to the Philadelphia, Wilmington and Baltimore Railroad at Gray’s Ferry, intersecting the Pennsylvania Railroad near the Wire bridge, near Fairmount, so that an interchange of freights might be effected.</p> <p>At a meeting of the board of surveyors of Philadelphia, held April 1st 1862, the plan of the Junction Railroad from Haverford street to Gray’s Ferry, and the plan of the Junction Railroad from Columbia bridge to Haverford street were approved. On the 8th of December 1862, the board of surveyors approved a revised plan of a line of the Junction Railroad from Haverford street to Gray’s Ferry.</p> <p>Mr. Thomson, the president, and Mr. Smith, treasurer of the Junction road, in their report in 1863 to the auditor-general, stated the line of the road to be continuously from Belmont (the extreme north end) to Gray’s Ferry (the extreme south end), and that its length was 4t602jj miles. Similar statements were made in the reports of 1864, 1865 and 1866. In a subsequent year, probably the next, a similar report was made out under direction of Mr. Smith ; it was signed and sworn to by him and sent to Mr. Thomson ; he returned it, signed by himself, to Mr. Smith with alterations, viz., reducing the length of the line to 3-^% miles ; the length of track from 7-Yo miles to By8^ miles, and some other alterations, reducing lengths, &c. Mr. Smith erased his name and it never was sent to the auditor-general.</p> <p>Mr. Smith testified that the board of directors of the Junction road did not appear to meet frequently because the stock belonged to the three companies in equal proportions and each was represented by its own president, that they had entire confidence in each other, and met frequently but informally without having a record of their meetings on their minute book; the charge of constructing the road was committed to the engineers under the control of the president. Witness saw the road from time to time as it progressed. On one occasion Mr. Thomson said the Pennsylvania company and Junction company should exchange tracks.at the intersection of their roads about Lipp’s brewery near Thirty-fifth street; the road was then being constructed from Belmont, but had not been finished; work was then being done on the tracks south from Haverford street; witness had never been informed by Mr. Thomson or any officer of the Pennsylvania company that it was being done for that company ; witness had no idea that it was so ; this conversation was near the' place of the intersection. In August 1866 witness saw across a cut on the road near Lipp’s brewery, a ridgé of dirt about four feet high ; he then recognised that some one claimed adverse possession ; at an interview some six weeks afterwards with Mr. Roberts, assistant president of the Pennsylvania company, Mr. Wilson, .the engineer of the Junction Railroad, and Mr. Hinkle, Mr. Roberts claimed for the Pennsylvania company the mile of road in controversy; this was the first knowledge witness had of the claim; Mr. Thomson was then in Europe; the matter was left in abeyance till his return. The Junction Railroad tracks between Haverford street and Market tunnel were located westward of the tracks of the Pennsylvania Railroad, and did not take any .of the ground then occupied by the Pennsylvania Railroad improvements. At the northern end, the Junction road occupied grounds of the Philadelphia and Reading Railroad and at the southern end ground of the Philadelphia, Wilmington and Baltimore Railroad; it had been informally agreed that the ground taken from each company should be valued and paid for by stocks or bonds of the Junction company; this arrangement was never consummated. Before this interview witness had not known that the Pennsylvania company were collecting tolls on the part in dispute.</p> <p>Mr. Felton testified that the location that was adopted by the Junction company was for a continuous road from Belmont to Gray’s Ferry ; he saw the work-on the road in progress from time to time; the understanding of witness was that the road was to be continuous from Belmont to Gray’s Ferry; but the then present two ends were to be built to connect with the Pennsylvania Railroad at one end north of the tunnel and at the other near Fair-mount ; the construction of the remaining portion was to be decided thereafter; he had never any idea that the Pennsylvania company would claim the ownership of the portion of the road in dispute until this controversy began; he understood the location adopted was a fixed one.</p> <p>On the 25th of January 1862, Mr. Thomson wrote to St. G. Tucker Campbell, Esq., requesting him to draw a mortgage for the Junction company on their road from Peters’ Island bridge to Gray’s Ferry to secure an issue of $350,000 in bonds, &c.</p> <p>Mr. Thomson testified that whilst he was president of the Junction company, from 1861 to 1867, their railroad was built; it extended from the Reading Railroad at Belmont to its intersection with the Pennsylvania Railroad near Haverford street, and commenced again at the south boundary of the property of the Pennsylvania company at Market street, and extended thence to the Philadelphia, Wilmington and Baltimore Railroad near Gray’s Ferry, using the Pennsylvania Railroad as the intermediate link; a portion of the track used for the Junction road belonged to tbe Delaware Extension of the Pennsylvania Bailroad; the Junction company never obtained from the Pennsylvania company a right of way between Haverford street and Market street; the Junction company never contributed money, work or material to the construction of the road between those points ; it was built there wholly by the Pennsylvania company; Mr. Smith, Mr. Felton, and other officers of the Junction company were informed of this fact by witness in May 1862; witness had previously given instructions to the chief engineers of the two companies as to the construction of the road between these points.</p> <p>On the 12th of May 1862, he wrote to John A. Wilson, chief engineer of the Junction company, that, “under the new location of the Junction Bailroad, that portion of it between Market and Haverford streets on the old location, will, in consequence of so material a portion of the Pennsylvania Bailroad being used above Haverford street, be constructed by the Pennsylvania Bailroad Company; this is also advisable in consequence of its passing entirely through the grounds of the Pennsylvania Bailroad Company. * * * In your accounts you will keep the expenditure upon the Junction road in two divisions separately ; the first division between the Philadelphia and Beading Bailroad and the Pennsylvania Bailroad and the second between the north side of Market street and the Philadelphia, Wilmington and Baltimore Bailroad near Gray’s Ferry.”</p> <p>He wrote to Mr. Smith May 13th 1862, viz.:—</p> <p>“ Dear Sir: Since the visit of yourself and Mr. Felton, I have considered the subject referred to. The letter to Mr. Wilson was dictated by what I conceive to be the true interest of the Junction Bailroad Company, under the circumstances.</p> <p>“ That portion of the Pennsylvania Bailroad used by the Junction Bailroad Company to be paid for in its business at the same rate per mile as charged upon the other portions of the line.</p> <p>“ If it should, hereafter, be thought advisable to make the Junction Bailroad a continuous line, we would not object, and would dispose of such portions of the line as it would be necessary to use, at cost. At present, I think the directions given are best for all parties. With a view to the probable purchase and construction of this part of the line by the Junction Bailroad Company, at a future period, it would be best that the mortgage remain unchanged, and that the requisite bonds be reserved for that object.”</p> <p>This letter was produced on request of the defendants’ counsel from the letter files of the Philadelphia and Beading Bailroad Company.</p> <p>Witness said there was no suppression from the other officers of the Junction company; that portion of road was being built by the Pennsylvania company, at their own expense, and it was his understanding that they knew the construction was so being done ; all the means derived from the stock and bonds of the Junetion company were expended in the construction of the other portions of the road. No official notice had ever been given by the Junction company to the Pennsylvania company, of a location of the Junction road through their grounds.</p> <p>Mr. Wilson testified, that he acted in accordance with the instructions in Mr. Thomson’s letters of May 1862, and whilst the work was progressing, Messrs. Felton and Smith were both along the road inspecting it; neither of them made any complaint or remonstrance about the absence of a distinct line of the Junction road between Haverford and Market streets; a piece of road was built by witness from Market street to a point near the Pennsylvania company’s round-house to connect the tracks of the Junction road at Market street with the Pennsylvania company’s tracks at the round-house; the grading was commenced in the summer of 1862 ; the work was done at the expense of the Pennsylvania company; the track was not laid at the 1st of March 1864. The original location of the Junction road extended from the Reading Railroad to the Pennsylvania road at Haverford street and was a much lower grade than the (then) present tracks of the Junction Railroad at Lipp’s brewery ; when the re-location of that portion of the Junction Railroad was made necessary by the action of the board of surveyors, the grade of the Junction road was so arranged as to allow a connection with the tracks of the Pennsylvania road at Lipp’s brewery, and the original location was abandoned. The object of a through connection being thus secured, no further steps were taken relative to a location for the Junction road south of that point except to dot on the plans what could be done if desirable thereafter; engineers do not understand the running of a line on paper as constituting the location of a road. Previously to Mr, Thomson’s letter of May 12th 1862, no work had been done on the line from Belmont to Gray’s Ferry; witness considered the acceptance of the revised location of the board of surveyors an abandonment, but knew of no corporate action of the directors of the Junction road on the subject. Witness had no knowledge of anything said or done by any one connected with the Pennsylvania company calculated to mislea'd any one connected with the Junction Railroad Company. The lettings to contractors by the Junction company were confined to the portions of the road between BelmOnt and Lipp’s, and between Market street and Gray’s Ferry.</p> <p>Mr. Felton testified, that he had no doubt the interview between Mr. Thomson and himself, and Mr. Smith, spoken of by Mr. Thomson, took place; but that he should not consider that Mr. Thomson’s letter to Mr. Smith could be regarded as an intention of the Pennsylvania Railroad Company to claim the ownership of the portion of the'road in dispute, if the Junction company should think it advisable to buy it.</p> <p>There was a large amount of testimony of a similar character to that in the foregoing synopsis.</p> <p>There was evidence also that the portion of road in controversy passed through the “yard” of the Pennsylvania Railroad Company, in which there were a large number of tracks ; that at the time the testimony was taken (1869) there were two hundred trains passing in and out of the yard every twenty-four hours, besides engines at work in the yard, which crossed Bridge street at least fifty times in twenty-four hours ; that it would be very dangerous as well as very inconvenient to the company owning the “ yard” to have engines of another company, of which they had not the control, to pass through the “ yard.” There was also evidence showing that it would seriously impede the business of the Junction Railroad Company to have a portion of a line of railroad over which they had to move so large an amount of business as they had, to be interposed between two ends of their road, and be out of their control; particularly on a road so short as the Junction Railroad ; that it would be “ an act of insanity” for one railroad ■to be extended into a tunnel when the egress from it was obstructed by the tracks of another company. There was evidence of acts of Mr. Thomson for the purpose of showing such a recognition of the rights of the Junction Railroad Company to the road in dispute as estopped the Pennsylvania Railroad Company, he being their president, from claiming the exclusive ownership of that portion ; and of acts of the officers and directors of the Junction Railroad Company recognising that ownership.</p> <p>On the coming in of the report of the examiner, he and Samuel Robb, Esq., were appointed masters, to report the facts of the case and such decree as they might think fit. They made a very elaborate and lengthened report. The following are extracts :—</p> <p>“The main contention in this action is two-fold — first, as to whether the company plaintiff contemplated and endeavored to carry out the construction of a continuous line of railroad by the route described in the bill, from the Philadelphia and Reading Railroad near Belmont to the Philadelphia, Wilmington and Baltimore Railroad near Gray’s Eerry, to be owned and controlled by them as an independent line, and as distinguished from a line made up of two strips of railroad, separated, and only connected by an intervening portion of railroad, owned and controlled by the Pennsylvania Railroad Company; and second, as to whether, if such were the intention and effort of the company plaintiff, they actually effected their purpose, in so far as to be entitled to be the owners of the portion of railroad which extends from the north side of Market street to Haverford street, with the right to construct a line of road to connect that portion of the said road just referred to at Haverford street, with their own road, at its intersection with the Pennsylvania Railroad at a point east of Thirty-fifth street.”</p> <p>After reporting some preliminary and undisputed facts, they say:—</p> <p>“ The result of the experiments and deliberations was the obtaining of the supplementary Act of Assembly, which, unquestionably and admittedly, authorized the construction either of a continuous or broken line of road. So far, then, as any inference can be drawn from the conduct of the incorporators, as shown, in the minutes of their meetings, and the resulting legislation (which afford all the light that the masters have on. the .subject), it would seem that, down to the election of the directors, the question whether a continuous road or connecting strips should be built, had not only not been determined, but was nece'ssarily and purposely left open, the right, however, being secured to adopt either mode. * * *</p> <p>“ On the 4th of April 1862, a special meeting of the board of directors of the Junction Railroad Company was held, at which Mr. Thomson, inter alios, was present, and then, as appears from the minutes, the plans of the Junction Railroad, with accompanying profiles, were presented, and contracts for the work, on the line from Relmont to Haverford street, awarded. These plans, as shown by the testimony of John A. Wilson, and by certified copies of the sames plans, as approved by the board of surveyors on the 21st of April 1862, in a slightly modified form, exhibit a continuous route from Belmont to Gray’s Ferry, which, according to Mr. Wilson’s testimony, was divided into sections, numbered from one to five, inclusive; that from Haverford street to the north side of Market street, being section No. 3. The acceptance of the plans in this form would seem to indicate, especially in the absence of strong evidence to the contrary, that the board of directors intended to construct the road according to the plans submitted; and this view is fortified by the resolution passed the same day, instructing the engineer to place the whole line of the road under contract as soon as expedient.</p> <p>“ If they had in view, only parts of the line, as delineated on the plans, it is strange that they should not have expressed themselves accordingly ; and it would be stranger still if they supposed that the Pennsylvania Railroad Company was to build, own, and control that part of the line from Haverford street to Market street, that the directors of the Junction Railroad Company should have assumed not only to approve such part of the route, but also to instruct their engineer to put it under contract. * * * A special meeting of the same board was also held on the 3d of May 1862, at which it was resolved ‘ that the line of the Junction Railroad be so amended as to conform to the line adopted April 21st 1862, by' the board of surveys,’ and this line so adopted was the continuous one from Belmont to Gray’s Ferry. * * * The continuous line referred to, as appears from the testimony and reports of the engineer,, having been actually surveyed upon the ground, as well' as drawn upon the paper plans, and having been thus approved by the board of directors, would seem to be the one described in the directions for the mortgage as ‘ located.’ At a special meeting of the same hoard, -held December 10th 1862, at which Mr. Thomas A. Scott was present, acting for Mr. Thomson, it was resolved on motion of Mr. Scott, ‘ that the improved location (as exhibited on plan of engineer, and approved by the board of surveys of Philadelphia, December 8th 1862), for that portion of the Junction Railroad between Haverford street and Gray’s Ferry, be approved of and adopted by this board.’ * * * The directors, in approving and adopting it, approved and adopted the very location, or line, which is in controversy, and claimed to be owned by the Pennsylvania Railroad Company. * * *</p> <p>“ There would seem to be no doubt, from the foregoing historical review, that those intrusted with the direction of the affairs of the Junction Railroad Company, intended and attempted to construct a continuous line of railroad, to be owned and controlled by that company, from Belmont to Gray’s Ferry.</p> <p>“ 2. Did the Junction Railroad Company acquire the right to build their road over the disputed territory, which belonged previously to the Pennsylvania Railroad Company, and if so, was the road for such portion built by them, or by anybody else, in such a manner that they, the Junction Railroad Company, can lawfully claim to be the owners of it ? This inquiry is confined entirely to that part of the line which extends from the north side of Market street to Haverford street. * * *</p> <p><‘It is a consideration of extreme importance in the whole of this case, that the relations of the Pennsylvania Railroad Company to the organization and management of the Junction Railroad Company, and the construction of its road, were such, that the ordinary rules which regulate the rights of railroad corporations as regards the owners of real property needed for the exercise of their franchises, ought not to be rigidly applied to the case in hand, in any of the disputed aspects of it. The first named company was one of the three corporations which projected the Junction Railroad; it became an owner of nearly one-third of the stock of the new company, which was entirely owned by the said three companies, with the exception of a few shares, which were held by the presidents thereof, individually, for the purpose of legally becoming directors, although they, admittedly, represented in the board, not their private, but their representative interests; the projected railroad was intended to be for the common benefit of the said three corporations in the matter of transportation, as well as of income; in pursuance of the general plan, each of the said corporations allowed the use of a portion of the real estate owned or occupied by them, without any formal or completed understanding as to compensation being rendered therefor; either Mr. Thomson, the president both of the Pennsylvania and the Junction Railroad Companies, or Mr. Thomas A. Scott, as his substitute on behalf of the Pennsylvania Railroad Company (though not a member of the board) was present at the meetings of the directors of the Junction Railroad Company, when the whole location and route of the railroad to be built were under consideration, and either finally adopted, or made the basis of contracts as finally adopted ; and the actual construction of the railroad as located, was done under the immediate supervision of the president and engineers of the Pennsylvania Railroad Company, in their same capacity as connected with the Junction Railroad Company.</p> <p>“ The three companies were not dealing with each other in this matter at arms’ length, but in a generous confidence, growing out of their common interest in the projected enterprise, which permitted, and was actually followed by a certain want of formality and disregard of usual precautions. The masters think that no case very similar to this can be found. It is, as it were, a law to itself. Certainly, inasmuch as, under the circumstances referred to, -the two other corporations were led into permitting the occupation and use of property acquired by them in the same manner as the Pennsylvania Railroad Company had acquired the ground in-dispute, if it be true, as the masters think and have reported, that the directors of the Junction Railroad Company intended to construct a continuous line over that ground, and if, therefore, those other corporations invested their money, entered into their obligations as guarantors of the bonds of that company, and permitted such use of their grounds in view of such a mode of construction, as must be presumed, the case ought to be a very strong one which would justify the Pennsylvania Railroad Company, after the road was constructed, or at anytime after the enterprise was started, and the obligations and privileges coming from the other companies were given, to claim that that part of the roadway w'hich passed through the grounds of that company, had not been secured or dedicated, and that, therefore, it could not be used. On the contrary, in view of the peculiar character of the Junction Railroad Company, and of the circumstances attending its organization, and the manner in which its road was laid out and constructed, and, especially, in view of the knowledge which the Pennsylvania Railroad Company must be presumed to have had, and actually appear, from the reports previously referred to, to have had, of the progress of affairs, the masters are of the opinion that the company defendant ought to be bound by the action of the directors of the Junction Railroad Company in the locating of their road. * * *</p> <p>“ It must be conceded that this ground had been acquired by the company defendant prior to the location of the Junction Railroad, but that it could not, at that time, have been in actual use as part of the yard, or for any other purposes, of the Pennsylvania Railroad Company, is plain from the fact, that that part of the roadway of the Junction Railroad was almost entirely made by excavation, the tracks of the Pennsylvania Railroad being very little, if any, interfered with. In fact, the route selected was ‘ so located as to run clear of the (then) present tracks of the Pennsylvania Railroad Company’s yard.’ That this ground, however, has been or is needed for any other uses than as a roadway, can hardly be claimed, as it has been and is still occupied as such; and it, probably, would not be contended that such use of it could, in any view of the case now be prevented. It may be conceded that the use of this part of the road by the Junction Railroad Company, and the crossing of the Pennsylvania Railroad at the north end of it would not be desirable, and that it would necessitate great care on the part of employees of both companies to avoid accidents ; but the masters are not able to see that anything more than this is involved, and this has been much aggravated by the efforts made to accommodate an increase of business, which is largely owing to the existence of the Junction Railroad, since the time when the location was made, which is the time that ought to be considered in this connection. * * * The Acts of Assembly granted the right to the Junction Railroad Company to adopt the route in dispute; and they actually did so, unless it can be shown that there was something sacred from the touch of the legislature, and the exercise of the right of eminent domain in the ground necessary to be occupied, because it was owned by a railroad corporation, was convenient for its use, and would become more and more so as the business of that corporation increased. No such position could be maintained. * * * It only remains, on this point, to consider whether the right of way over the said ground has been paid for by the Junction Railroad Company, and, if not, whether that fact affects, in any way, the right to occupy and use it. As to the question of fact, it is admitted to be as claimed. It was proposed and understood that each company of the three projecting the road should be paid a fair compensation for the land taken from each; but, in the harmonious spirit and somewhat informal action which then prevailed, the matter was left unattended to, and the ‘ fair compensation’ for any portion of such land was never estimated. * * * The compensation may be waived entirely, or, if not entirely, at least so far as security, or payment in advance, is concerned. It follows, then, that the company defendant cannot properly claim that the Junction Railroad Company has not acquired the disputed roadway because it has not paid what are commonly called the road damages. * * * The fact, however, that the matter of compensation was considered, and either neglected or waived, takes all force out of this argument, as urged on behalf of the Pennsylvania Railroad Company. If this right to such compensation still exists, that company has its appropriate remedy to recover it. The right to use and occupy the ground, nevertheless, would not be postponed to its payment, if the principles of law applicable to such cases have been correctly stated. For this reason, and because of the part borne by the Pennsylvania Railroad Company in the projecting and organization of the Junction Railroad Company, and in the selection of a location for its road, as well as because the data for arriving at any conclusion as to the amount which might be due for the ground occupied, are not before the masters, they think that a decree should not be withheld until that amount can be determined.</p> <p>“ As to the claim that the Pennsylvania Railroad Company built and paid for the road in dispute, and that notice was given to the Junction Railroad Company in 1862 of their claim of ownership :</p> <p>“ It seems from the testimony of Mr. Thomson, Mr. John A. Wilson and Mr. William H. Wilson, that the Pennsylvania Railroad Company did furnish the material and the means by which the part of the road contended for was built and paid for. It may not be easy to comprehend why this should have been done in view of the facts, that it Was the understanding, as well of that company as of the other companies interested, that that road was to form a part of the continuous line of the Junction Railroad, that the surveys and estimates were based on the same theory, and that $800,000 were finally raised by loan for the purposes of construction. * * * The actual oversight of the work of construction was intrusted to those who were at the same time connected with the Pennsylvania Railroad Company, and the instruction 'to use the material and money of that company came not from the Junction Railroad Company nor from Mr. Thomson as the president of that company, but from Mr. Thomson as president of the Pennsylvania Railroad Company.</p> <p>“ Taking into view, then, that the location selected for the Junction Railroad embraced this controverted portion ; that proper steps were taken, in the peculiar circumstances of the case, to secure the right to occupy and use it; that this selection was known to the Pennsylvania Railroad Company; that they might be called partners in the enterprise'; and, therefore, that they were estopped from acting for their own private advantage, and contrary to the expectations which their conduct and that of their representatives had raised, and against the interests of others who had embarked with them in this scheme on the faith of such expectations, it cannot be that, by simply using their own property to construct that part of the road, they can acquire the right to own and control the use of it.</p> <p>“ In view of such facts, they must be regarded as mere agents of the Junction Railroad Company. -The road when built in this manner would be a part of the Junction Railroad, and not the Pennsylvania, and the only claim the Pennsylvania Railroad Company could have, growing out of such use of their own property, would be for reimbursement of the amount thus expended. These conclusions are to be drawn and applied in this case, unless it can be made to appear that the Junction Railroad Company consented, either actually or constructively, to the Pennsylvania Railroad Company acquiring or having the ownership and control of this portion of the road, in consideration of their constructing it. It would not be sufficient to give the alleged rights to the latter company, that they informed the Junction Railroad Company that they were building this part of the road, or that they claimed to own it, for the latter company would have had the right either to assume that they would carry out the joint undertaking as agreed upon, or that, if not, their failure to do so would not avail their purposes. What are the facts as testified to in this branch of the case?</p> <p>“In the first place, Mr. Smith, who was one of the directors and the treasurer of the Junction Railroad Company, as well as president of the Philadelphia and Reading Railroad Company, says, ‘ I was never informed, while the work was being done, by Mr. Thomson, or by any other officer of the Pennsylvania Railroad Company, that it was being done for the Pennsylvania Railroad Company. Such a thought never entered my mind.’ Mr. Eelton, another director of the Junction Railroad Company, and also the president of the Philadelphia, Wilmington and Baltimore Railroad Company, at the time of which he speaks, says, ‘ I never had any idea that they (the Pennsylvania Railroad Company) claimed that portion of the road, until this controversy begun.’</p> <p>“ It appears also from a communication from Mr. Thomson, as president of the Junction Railroad Company, to St. George T. Campbell, Esq., dated January 25th 1862, that instructions were given by the former as to the property to be covered by the mortgage, to which reference has been made before, and it shows that the Junction Railroad, as understood by him at that time, extended from the Philadelphia and Reading Railroad near Peters’ Island bridge, over the Schuylkill, to the Philadelphia, Wilmington and Baltimore Railroad near Gray’s Eerry, which could only be the continuous route.</p> <p>“ It seems, however, from the testimony of John A. Wilson, that after the date of that letter, Mr. Thomson changed his plan, and sent a message to Mr. Campbell, that he had decided ‘ that the portion of road between Market street and Lipp’s brewery, should be built by the Pennsylvania Railroad Company.’</p> <p>“ Precisely in what capacity Mr. Thomson was acting when he gave those instructions, there is nothing to show. Certainly, as president of the Pennsylvania Railroad Company, he could not bind the Junction Railroad Company, nor could he, as the president of the latter company, make so material a change as the one referred to, without authority from the board of directors of the Junction Railroad Company, at least, and no such authority from that company is claimed to exist. The first indication of Mr. Thomson’s change of plan as to the line of the road, of which the date can he fixed, is found in the letter from him, as president of the Pennsylvania Railroad Company, to Mr. Wilson, under date of May 12th 1862. As the masters understand this communication, it evidently and necessarily implies that, down to its date, the intention had been that the part of the road in controversy should be not only a part of the line of the Junction Railroad, but that it should be constructed by the Junction Railroad Company. Else, why should he say that, ‘under the new location ’ (which was not of this part of the road, but of that above Haverford street) ‘ of the Junction Railroad,’ that ‘ portion of it between Market and Haverford streets, on the old location, will, in consequence of so material a portion of the Pennsylvania Railroad being used above Haverford street, be constructed by the Pennsylvania Railroad Company?’ This means that, in Mr. Thomson’s thought and purpose, there was to be a change in the constructing party, and that change could, in the nature of the case, only have been from the Junction Railroad Company. It is evident, however, from this letter alone, that Mr. Thomson even then considered that it was ‘ a portion of’ the Junction Railroad which was to be built by the Pennsylvania Railroad Company. A reference, also, to the letter from Mr. Thomson to Mr. W. H. Wilson, written on the same day, will show that he, Mr. Thomson, at that time proposed only that the Pennsylvania Railroad Company should build that ‘ portion of’ the Junction Railroad which ran through the grounds of that company, and thereby again showed that he then considered the road to be built to be separate and different from the Pennsylvania Railroad. The masters think that the only interpretation which can fairly and reasonably be put upon these communications, and upon the others connected with them, is that 'Mr. Thomson, for some reason not disclosed, but, apparently, for the sake of convenience, ‘in consequence of its’ (the Junction Railroad) ‘passing entirely through the grounds of the Pennsylvania Railroad Company,’ thought it better that the Pennsylvania Railroad Company should build, and therefore pay for, the part of the road in question, leaving the repayment of the amount thus expended for future settlement. This view — and only this view * * * reconciles the otherwise seeming inconsistencies of the oral testimony on this subject.</p> <p>“If, however, the Pennsylvania Railroad Company did think that'they would become the.owners of that portion of the railroad between Market street and Haverford street by simply paying for its construction, they could have reached that conclusion only by overlooking well-established principles of law and equity. Such a result could not be reached in that way, not even if a formal notice had been given to tbe board of directors of tbe Junction Railroad Company to that effect. The relation between the three companies making up the latter was, to a certain extent, fiduciary, and it could not be terminated by a mere notice. From its very nature it was continuing in its character. And whether this be so or not, it is plain that neither the letter to Mr. Smith nor the conversation between Messrs. Thomson, Smith and Felton, were such as would alter any of the rights of the parties then existing. Mr. Smith and Mr. Felton were but two of several directors, and neither, nor both of them, could, by their silence or consent, extinguish rights and interests of such a character and so intimately connected with the very purpose of their corporation. Moreover, these gentlemen seem, from Mr. Thomson’s own testimony, to have repudiated promptly any suggestion that looked like the control, of this part of the road by the Pennsylvania Railroad Company. It is plain, from their testimony, that they did not understand any such claim to be set up as that now pressed. In the most liberal application of legal principles, therefore, such a notice could not bind the Junction Railroad Company. Even if, however, it should be conceded that notice was given by the Pennsylvania Railroad Company to the Junction Railroad Company of their alleged claim just considered, in the terms of Mr. Thomson’s letter to Mr. Smith and of his conversation with Messrs. Smith and Felton, and that such a claim had been recognised and acquiesced in by the Junction Railroad Company, it would still be true, from the very nature of the notice, that the latter company could insist, at any time, upon having the ownership and control of the part of the route in question transferred to them on the payment of the money actually expended in its construction.</p> <p>“It follows, then, that the masters do’not think the fact that the Pennsylvania Railroad Company built and paid for the road from Market street to Haverford street, under the circumstances of this case, tends to show that it belonged to them, and that they have a right to withhold the ownership, use and control of it from the Junction Railroad Company. They having paid for its construction, may have their remedy to recover the amount thus expended, * * * but the masters do not think the decree should await the determination of that amount. * * *</p> <p>“ It remains only to consider what right the company plaintiff have as to the location described on said plan for the road from the northern terminus, just referred to, to a point east of Thirty-fifth street (or Lipp’s brewery, as the place is sometimes called in the testimony), where the Junction Railroad first touches the Pennsylvania Railroad.</p> <p>“ It is not, on the one hand, denied that this location was adopted by the board of surveyors, and approved by the board of directors of the Junction Railroad Company. Nor, on the other hand, is it claimed that the railroad was ever.actually built on the said location. Both parties agree that the Pennsylvania Railroad was used for that distance — at first, for the purpose of making a through connection, by another route, before the other parts of the line were finished in August or September 1866 and afterwards until the bill was filed. The contention relates to an alleged abandonment of the location. It may be said, generally, that there is nc evidence of any express abandonment, or of any intention on the part of the Junction Railroad Company to abandon it. Mr. John A. Wilson gave as his reason for thinking the location had been given up, that the board of directors accepted the revised line of the board of surveyors, which delineated a route for the Junction Railroad, from Belmont to the crossing of the Pennsylvania Railroad, near Haverford street, as distinctly as the old location. * * * This change was made, not at the instance of the Junction Railroad Company, but by order of the board of surveyors. How the acceptance of the new location could be construed to be an abandonment of it, is not very clear. It would seem to be directly the reverse. * * * The location is satisfactorily accounted for by the question, which seems to have arisen in 1862, as to whether or not an exchange of tracks could be made with the Pennsylvania Railroad Company at that point by the fact that a rock-cutting was necessary for that portion of the road, which cutting was not finished until 1866, and also by the great anxiety which existed ‘ after the work on the Junction Railroad had been begun,’ to secure a through line from Belmont to the Philadelphia, Wilmington and Baltimore Railroad, which was actually secured in November 1868, by means of the Juntion Railroad from Belmont to Lipp’s brewery, and thence by other railroads then built to the. Philadelphia, Wilmington and Baltimore Railroad.</p> <p>“ However this may be, it is sufiBcient to establish the claim of the company plaintiff in the premises, that the Pennsylvania Railroad Company was one of the corporations combined for the express purpose of constructing an independent continuous line between the termini of the Junction Railroad, and that, by their representative in the board of directors, they recognised that route over the ground in dispute. The report to their chief engineer, and the letter of Mr. Thomson to Mr. Wilson, show that this location was known to the Pennsylvania Railroad Company at the time it was made, and there is no evidence that they ever objected to or protested against it, until about the time when this controversy arose in 1866. They cannot now set up a hostile claim which would defeat the purpose of the joint enterprise.</p> <p>It is true that that company now has six tracks over that territory, whereas they had only two -when the location was made, but they must be presumed to have laid, the additional tracks with their eyes open to the right of the Junction Railroad Company to claim its right of way at any time.</p> <p>“ Unquestionably, this right could be secured under the Acts of Assembly referred to, but the masters do not think such a resort necessary. * * * The masters are of opinion that the company plaintiff are authorized to construct their road on the route indicated in the plan attached-to the bill between the two points just considered, and, at or near Haverford street, to connect the two parts of their railroad there separated by a crossing of the Pennsylvania Railroad, as also indicated in the said plan. * * *</p> <p>“ The masters, therefore, report that the company plaintiff are entitled to the decrees prayed for in the first, second, and, as a necessary consequence, in the third prayers of the bill, but that the decree to be based upon the first prayer should be so framed as to permit the company defendant to prosecute any claim which they may have against the company plaintiff for compensation for the ground formerly belonging to the company defendant, which is occupied by the part of the railroad to which the said prayer relates, as well as for any amount expended, or materials furnished by the company defendant in the construction of that part of the road.”</p> <p>The defendants filed exceptions to the report; they were dismissed and the report confirmed. The court at Nisi Prius, SharsWOOD, J., decreed:—</p> <p>1. That the complainants are entitled to the exclusive ownership, possession and use of the railroad located and constructed as in the said bill mentioned, and especially of that part of the said road north of the tunnel at Market street in the city of Philadelphia, known as section three of the Junction Railroad; without prejudice, however, to the right of the Pennsylvania Railroad Company to institute any proceedings which they may think proper for securing compensation for the ground formerly belonging to the Pennsylvania Railroad Company occupied by the said part of the railroad north of the tunnel at Market street, and known as section three of the Junction Railroad, as well as for any money expended or material furnished by the said Pennsylvania Railroad Company in the construction of that part of the said road, and without prejudice to the right of the Junction Railroad Company to assert and maintain, either by way of defence or set-off to any suit or action brought by the Pennsylvania Railroad Company as aforesaid, or in any suit or action brought by the Junction Railroad Company, any claim or demand which the said company may have against the Pennsylvania Railroad Company for or on account of -tolls collected by the Pennsylvania Railroad Company on the said Junction Railroad or any part thereof, or for, or on account of their (the said Junction Railroad Company) having been prevented from supplying the motive power required for transportation on the said Junction Railroad Company and having been compelled to pay excessive and unreasonable rates to the Pennsylvania Railroad Company for supplying said motive power.</p> <p>2. That the complainants are entitled to complete the construction of the said railroad via the location shown by the broken line on the official plan approved by the board of surveyors of the city of Philadelphia on the 21st day of April 1862 (a reduced copy of which plan is annexed to the bill of complaint), from the point where the said railroad is now connected with the railroad of the Pennsylvania Railroad Company east of Thirty-fifth street to Haverford street, and to connect the section of the said railroad lying to the eastward with that lying to the westward of the railroad of the Pennsylvania Railroad Company.</p> <p>8. That the Pennsylvania Railroad Company, their officers, agents and servants, be restrained from interfering in any manner with the rights of the complainants as’ thus ascertained and declared, and from obstructing or hindering the complainants, their officers, agents and servants in completing the said railroad as aforesaid, or in using the said railroad as now constructed, or as it may hereafter he constructed as aforesaid, for the passage of engines and cars and the transportation of freight and passengers.</p> <p>The defendants appealed to the court in ban'c and in nine specifications assigned the decree for error.</p>

154. This was a scire facias sur Mechanics’ Lien, issued September 7th 1871; by James Allen against Terence Fitzpatrick and Daniel Fitzpatrick, owners, and Terence Fitzpatrick, contractor ; the jury was sworn to try the issue between the plaintiff and “ Terence.

This was an action of covenant, brought July 2d 1868, by Benjamin Tindall against Evan Prowattain. The defendant was the owner of real estate situate on China street below Front street, Philadelphia.

36. On the 12th of March 1873, Robenia Hammett filed a bill against James H. Campbell and others, executors, &e., of Barnabas Hammett, deceased ; James H. Campbell and another, trustees under said will, of Elizabeth F. Hammett, the Fidelity Insurance Trust and Safe Deposit Company, guardians, &c., of Frederick W. Hammett and others, minor children of said deceased.

<p>1. The Act of April 21st 1855, sect. 8, provides that the city of Philadel- . phia may charge against lot-owners for water-pipe, not exceeding seventy-five cents per foot. Held, that in suit on a claim charging seventy-five cents per foot for pipe, evidence was not admissible that the cost was less.</p> <p>2. The charge does not fall within the Act of April 19th 1843, allowing a party to prove that a municipal charge is excessive.</p> <p>3. Stroud v. Philadelphia, 11 P. F. Smith 255, followed.</p>

<p>1. Land was conveyed to Newbold and another, to hold in trust, in undi-l vidod twelfths, Smith owning two-twelfths; the trustees were authorized, on the request of a majority of the cestuis que trust, to sell the land discharged from the trust and divide the proceeds proportionably amongst them : Held, that Newbold assumed all the duties and obligations of a trustee at the inception of the title.</p> <p>2. Smith, being the owner of one share in 1841, sold it by parol to Newbold, who paid the purchase-money; no deed was ever made. In 1855, after Smith’s death, the land was conveyed, by the authority of a majority of the cestuis que trust, to an improvement corporation, the stock being proportionably divided; the shares of stock representing one-twelfth “ to be delivered to the trustees for the owner thereof:’’ Held, that Newbold held the stock as trustee for Smith’s representatives, as he had held the share of the land.</p> <p>3. In 1869 Newbold obtained for Spencer from Smith’s widow and heirs conveyances of all their interest in the land, without disclosing his purchase from Smith, or that the land had been converted, or the value, or other circumstances: Held, that Newbold being trustee for Smith’s representatives and agent for Spencer the conveyances could not stand.</p> <p>4. A trustee purchasing from his cestui que trust must show that he made the fullest disclosures of all he knew as to the subject and that the price he paid was adequate.</p> <p>.5. There cannot be a valid parol sale of land amongst tenants in common in possession.</p> <p>6. The bill averred that the plaintiff owned the land as representative of Smith ; the answer averred that Newbold had bought it from Smith and received a written title, which he had lost. On the hearing, Newbold, as a witness, said he could not say that he ever had a deed, &c.: Held, the defendant’s own testimony being in conflict with the answer, that it was not conclusive, and it was insufficient to prove the execution of a deed.</p> <p>7. The effect of a party’s testimony in conflict with his answer is to impeach and overthrow the answer.</p>

<p>1. A lease covenanting to pay a money rent at stipulated times is a writing for the payment of money within the Affidavit of Defence Law.</p> <p>2. By an agreement the defendant covenanted to “ be responsible * * * for the performance * * * of the covenants * * * in the lease * * * on the part of (the lessee) * * * to be paid, done and performed,” &c.: Held, not to be a guaranty but a contract of suretyship.</p> <p>3. The agreement was a writing to pay money within the Affidavit of Defence Law.</p> <p>4. Dewey v. Dupuy, 2 W. & S. 553; Frank v. Maguire, 6 Wright 77; Johnston v. Cowan, 9 P. F. Smith 275; Reigart v. White, 2 Id. 438, followed.</p>

67. This was a scire facias sur mechanics’ lien, by the “Philadelphia Hydraulic Works,” against Joseph H. Schenck owner, being for the completion of elevating machines in a building of defendant.

<p>1. A testator gave to a trustee real estate and bank stocks in trust to pay the income to his daughter half-yearly during life, and ‘‘immediately after her decease,” he gave the property bequeathed, &e., to a granddaughter and two grandsons ; “ or such of them as may be living, their heirs and assigns.” 'The trustee having died, his executors settled an account; during the hearing on the account before the auditor, the cestui que trust died : Held, that the trust then terminated and that all the income from that time passed to those in remainder.</p> <p>2. The trustee had no active duties to perform to the remaindermen, not even to convey the estate passed directly by the will to the remaindermen; the trustee succeeding the deceased trustee was not entitled after the death of the cestui que trust to receive the corpus of the trust.</p> <p>3. The bank stock bequeathed in trust remained unchanged until the death of the cestui que trust; the second trustee collected the dividends — without having possession of the certificates — and the rents of the real estate. Held, that he was not entitled to commissions on any of the corpus of the trust.</p> <p>4. McCausland’s Appeal, 2 Wright 466, followed.</p>

<p>1. A testator directed that his real and all his residuary personal estate should he in the care of his executors during his wife’s life; from the income to pay his wife an annuity, the remainder of the income to be divided into eighths, one to each of four sons absolutely, one to bo paid to each of three daughters; one to his son Jacob, or “ at the option” of the executors to apply it to his support, as they might see fit, so that it should not be liable “ to his disposal, order, debts, control or engagements, and in case of his decease” to apply the same for the support of his child or children. Upon the death of the testator’s wife, he gave an eighth absolutely to each of the four sons; one eighth to the separate use of each of the daughters ; one eighth to Jacob for life, and after his decease “ to all his children living, and the issue of such of them as may be then dead, their heirs and assigns for ever in equal parts, such issue taking and among themselves dividing such share only as their deceased parent would have taken” provided that Jacob’s share should remain in the care of the executors “ as his trustees,” the income during his life “ to be paid to him or applied by them at their option for his support, &c., so that the same shall not be liable to his disposal or subject to the payment of his debts.” There was no further direction as to Jacob’s share. Held, (1.) That Jacob took but a life interest. (2.) That the accumulation of the income of the fund for Jacob which had not been applied for him remaining in the hands of the trustees did not pass to his administrator.</p> <p>2. In ascertaining the intention of the testator, “ children” primarily is a word of purchase.</p> <p>3. The construction of testamentary words must always depend in some measure on the special facts.</p> <p>4. AVhere a clause in a will is obscure or ambiguous, words which manifest an intention to dispose of the whole of testator’s estate, are to be construed as passing a fee.</p> <p>5. It is of weight in construing a devise in remainder to be a fee that there is no limitation over.</p> <p>6. AVhere the meaning is clear from unmistakable language, the will interprets itself, and subsidiary facts are not to be introduced in order to create a doubt.</p> <p>7. The extent and character of a devise depends on the qualities stamped and powers conferred on it by the testator, not alone in the parties in whom the title is formally vested.</p> <p>8. Ashhurst’s Appeal, 27 P. F. Smith 464; Dodson v. Ball, 10 P. F. Smith 492; Earp’s Appeal, 25 P. F. Smith 119; Horwitz v. Norris, 13 Wright 213, followed. ITaldeman v. Haldeman, 4 Wright 29; Yarnall’s Appeal, 20 P. F. Smith 335, distinguished.</p>

<p>1. A wheelwright indebted to plaintiff and his father, agreed to make a wagon for plaintiff; there was evidence that the wheelwright delivered the running-gears to plaintiff, who afterwards bought the bed from him: the plaintiff retained these several months, bought other materials, contracted with the wheelwright to complete it for a certain sum for the whole cost, and took all the materials to his shop, plaintiff to pay the wheelwright’s debt to the father; he afterwards settled with the wheelwright, when there was less due than the father’s debt which plaintiff paid; the wagon remaining at the shop was levied on for the wheelwright’s debt. In replevin against the purchaser, Held, that this evidence did not show legal fraud.</p> <p>2. The evidence showed such long-continued and exclusive possession in the plaintiff as could be affected only by actual fraud.</p> <p>3. Plaintiff having retained the property so long, the fact that under a new contract the wagon was placed with the wheelwright to be finished was not fraud on his creditors.</p> <p>4. Dunlap v. Bournonville, 2 Casey 72; McMarlin v. English, 24 P. F. Smith 296, referred to.</p>

<p>1. A subscription to the stock of a public corporation prior to the procurement of its charter is absolute and a condition attached is void.</p> <p>2. Commissioners to receive subscriptions arenotthe agents of the corporation but of the public, under limited and definite powers which every subscriber is bound to know.</p> <p>3. After a corporation is organized it may receive subscriptions for stock on conditions which it is bound to perform.</p> <p>4. After organization, one subscribing without condition cannot set up an unlawful act of the directors to avoid his subscription.</p> <p>5. Whenever a power which the subscriber cannot control, intervenes to alter a material point in his contract without his assent, it works his release.</p> <p>6. A subscription paper set out the termini of a railroad and the route over which it would be constructed. Held, that this was an agreement that the termini and the route should be as stated; and if the company materially changed them, a subscriber would be released.</p> <p>7. A railroad company took subscriptions for the road with specified route and termini; they passed a resolution changing them in material points. Held, that this was evidence of abandonment of the route, &c., in the subscription.</p> <p>8. In a subscription to railroad stock it was stated that the road was to be commenced “ as soon as sufficient funds shall be subscribed to carry on the work.” In a suit for a subscription; Held, that the assurances of the officers at a public meeting held for procuring subscriptions, at which the defendant subscribed, that the money would not be called for till §150,000 were subscribed, were evidence; that being an inducement on which the subscription was obtained.</p> <p>9. Ambiguities in a writing may be explained, varied, added to or contradicted by parol, where it is shown that but for the oral stipulations the writing would not have been executed.</p> <p>10. A party seeking to enforce a contract made by his agent is bound by his declarations made at the time, although he has exceeded his authority.</p> <p>11. Indiana, &e., Turnpike Oo. v. Phillips, 2 Penna. R. 184; Manheim, &c., Plankroad Oo. v. Arndt, 7 Casey 317, followed.</p>

<p>1. The’Oourt of Quarter Sessions lias not jurisdiction to lay out a road wholly within a borough incorporated subject to the Borough Law of April 3d 1851.</p> <p>2. The Act..©f April 12th 1869, relating to roads in Delaware county, does not repeal the Act of 1851 as to jurisdiction.</p> <p>3. The Act of 1869 is to regulate the proceedings of viewers under an order made by proper authority ; not to change or confer jurisdiction over roads, streets, &c.</p> <p>4. Somerset and Stoystown Road, 24 P. F. Smith 61, followed.</p>

<p>1. Sparks from defendants’ engine fired a railroad tie, from which rubbish left by the defendants on their road was fired, communicated with plaintiff’s fence next to the road and spread over two fields, burned another fence and standing timber six hundred feet distant from the road. Held, that the proximity of the cause was for the jury.</p> <p>2. In such case the jury must determine whether the facts constitute a continuous succession of events so linked as to be a natural whole, or whether the chain is so broken as to become independent, and the final result cannot be said to be the natural and probable consequence of the negligence of defendants.</p> <p>3. The rule for determining what is proximate causéis, that the injury must be the natural and probable consequence of the negligence, and that it might and ought to have been foreseen under the circumstances.</p> <p>4. Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353, distinguished.</p>

<p>1. A testamentary trastee of a fund for the use of his wife and children for life, which after the death of both was to go to the children, applied to the Orphans’ Court, the children being minors without guardians, having had no notice of the application and not represented, for authority to mortgage ; after report of an auditor that his petition should be granted, a decree was so made, the trustee to give security to be approved by the court: Held, that a bond endorsed by the two associates “ approved,” and filed in the Orphans’ Court, was conclusive evidence of approval; and parol evidence that it was not approved by the court was inadmissible.</p> <p>2. The bond was statutory and it is presumed that it was examined and passed on as part of the proceedings, before it was approved and filed.</p> <p>3. The Acts of Assembly requiring such security are directory and the want of security will not avoid a sale or mortgage.</p> <p>4. Decrees of the Orphans’ Court cannot be impeached in a collateral proceeding unless for want of jurisdiction appearing on the record or for fraud.</p> <p>5. That the record did not show that all the parties had notice of these proceedings would not affect the right of the trustee to execute the mortgage.</p> <p>6. Parol evidence was inadmissible to impair the effect of the record.</p> <p>7. The mortgage reciting the devise, the proceedings of the Orphans’ Court, that the money to be raised under it was for the improvement of the trust estate, &c., was made to Forrest in fraud of the trust, as security for individual debts of the trustee to him. Nine months afterwards Forrest assigned to the plaintiff, who paid the money in the presence of the trustee, both Forrest and the trustee inducing her to believe that Forrest was a bona fide holder for value, that the trustee had no set-off, and that the money was not to be misapplied, &c. In a scire facias on the mortgage against the trustee, it not appearing that the cestuis que trust were making defence, Held, that he was estopped from setting up his breach of trust against a bpnfi fide purchaser.</p> <p>8. At the close of the evidence the court said to counsel, that as there was no evidence of notice to the plaintiff that Forrest was not a bong, fide holder of the mortgage, &c., counsel in consequence need not address the jury; the court afterwards submitted the question of notice to the jury: Held, that the statement of the judge did not preclude counsel from addressing the jury and there was no cause for reversal.</p>

<p>1. A mortgage was made by a wife with her husband of her separate estate; the husband used the money for his own purposes exclusively, without accounting to her; by deed, in which she joined, he assigned all his estate for creditors; the wife died, having devised her estate to a son; her land was sold under the mortgage, leaving a balance after its payment. Held, if the husband had any interest as tenant by the curtesy in the balance, the amount taken by him of the wife’s money having been greater than such interest, her devisee was entitled to receive it, in preference to the husband’s assignees.</p> <p>2. The fund having come from her separate estate it would have been hers if living; her right did not depend upon subrogation, but was a legal right to be enforced unless the claimant under the husband could show a superior title both in law and equity.</p> <p>3. The “ Carlisle Tables” are not authoritative in a judicial investigation of the value of a life interest; in such investigation each case must depend on its own circumstances.</p> <p>4. In this case the common-law rule of one-third the capital sum was adopted as the measure of the life interest.</p>

<p>1. A testator wishing to bequeath his estate to charitable uses was told that it would be invalid if he should die within a month, but that he might give it unconditionally to some person whom he could trust to carry out his wishes ; Yeakle was named, and an absolute bequest was made to'him. Testator died within the month and Yeakle being informed of his death and wishes, said he would carry them out. Held, that there was.nothing in the circumstances to fasten a trust on. Yeakle, and that the bequest was not within the words of the Act of April 26th 1855.</p> <p>2. The charities would have had no claim, legal or equitable, to enforce payment by Yeakle, nor would he be guilty of fraud against them or the testator, if he should apply the bequest in any other way; his declaration of intention would not bind him.</p>

<p>1. A policy of insurance provided that the risk of property insured should be determined by the rates annexed and if the risk should be increased as contemplated by a by-law annexed, the’rates should be evidence of the additional risk. The by-law provided that if the insured devoted any part of the insured building or one located by him near it “to a more hazardous business,” the policy should be immediately void. The insured for light introduced gasoline, named as increasing the risk; he afterwa'ds removed it; subsequently the building was burned. Held, the policy was not void.</p> <p>2. In the absence of a stipulation to that effect, the validity of the policy depended on the state of the premises at the time of the loss.</p> <p>3. Lighting with gasoline was not devoting the building to a more hazardous business.</p>

<p>1. A court of equity will not aid in anything tending, even remotely, to coerce a wife to relinquish rights conferred on her hy law.</p> <p>2. Burk covenanted to convey to Serrill, his wife refused to sign the deed ; he was always willing to convey on payment of the whole of the purehasemoney, hut not upon payment of two-thirds, leaving the remaining third secured on the land for the wife’s interest. In an action against him for breach in not conveying: Held, if there were no fraud, compensatory damages only were recoverable.</p> <p>3. The law will not permit a wife to he coerced into a conveyance of her interest in land indirectly through exemplary damages against her husband.</p> <p>4. Delay in Burk in not informing Serrill that the wife refused to sign the deed was of value only in settling the amount of actual damage to Serrill, and could not enter into the question of fraud.</p>

<p>1. An agreement was that a father “doth set over, grant, convey and assure ” to a son, his heirs and assigns a tract of land, in consideration the son agreed to pay the father $1000 on demand and $500 in two years. The “ heirs of (the father) are each to have a farm and (the son) by paying the $1500 will be entitled to an equal share of all the property that may be left after (the father’s) and his wife’s decease.” The father to have sole control over a specified part of the land and to be furnished by the son with certain provisions during life. Reid, not to be a covenant by the father to give the son an equal share of his estate left at his death, but to regulate its descent, &c., by preventing the conveyance to the son from being treated as an advancement.</p> <p>2. The $1500 was not the consideration for such covenant, but a condition on which the equality of distribution should depend.</p> <p>3. The father in his life gave farms to each of the other children, more than their equal shares, and by his will gave all his estate to them, excluding the children of the first son who had died. Reid, that an action in the Common Pleas could not be maintained on the contract; it was to be considered and its effect adjusted in the Orphans’ Court.</p>

<p>On an ancient road there had been three drains into adjoining land; a turnpike was located on the road, and the land afterwards divided into town lots; two of the drains were permitted to be closed. Held, 1. That the company had not the right to turn dll the water through the other drain on to the adjoining lot owner’s land; 2. That the lot owner had the right to protect himself from the excessive flow by obstructing it, although the turnpike would thereby be injured.</p>

162. In the distribution of the estate of Jacob J. Morr, deceased. • The decedent died in April 1858, leaving a wall, by which he gave all his estate, in equal shares, to his ten surviving children, one of whom was Catharine Summers, then intermarried with Henry Summers. She died in June 1859, intestate, leaving to survive her her husband and four children. Another of testator’s children died intestate, unmarried and without issue.

<p>1. Judgment was entered against Tunis by warrant of attorney which contained “without stay of execution, exemption or extension.” Held, that this was a waiver of an inquisition, and land bound by the judgment but not owned by the defendant in the judgment, might be sold under a fi. fa.: Per Junkin, P. J., adopted by the Supreme Court.</p> <p>2. Tunis sold the land to Dundore, and afterwards it was sold under a fi. fa. on the judgment without inquisition. Held, under the maxim, Communis error facit jus, that the sale was valid.</p> <p>3. One buying subject to liens, makes them his own debts. Per Junkin, P. J.</p> <p>4. A purchaser cannot be compelled to accept a doubtful title, nor one which the court cannot warrant to him, the question being not whether the title is good, but whether it is clearly so. Id.</p> <p>5. A title is doubtful where its condition invites litigation; a purchaser cannot be compelled to take it if he thereby exposes himself to a law-suit. Id. . ' . . .</p> <p>. . . . 6. When doubts are raised by extrinsic circumstances, which neither the purchaser nor the court can satisfactorily investigate for want of means to do so, the court will refuse its aid; when the means of inquiry are offered, and the result satisfactory, performance will be enforced. Id.</p> <p>7. A possibility of a contest is not sufficient, it must be considerable and rational, such as would induce a prudent man to pause and hesitate, and as would produce a bonfi fide hesitation on the mind of the chancellor. Id.</p> <p>8. Kimball v. Kelsey, 1 Barr 183; Wolf v. Payne, 11 Casey 97, referred to.</p>

<p>1. The English rule that parol evidence is inadmissible to vary a written instrument does not exist in this state.</p> <p>2. In cases of fraud or mistake as to material facts, parol evidence of what occurred at the execution of the writing is competent to explain the meaning of the parties.</p> <p>3. Plaintiff contracted to sell land to defendant, when the deed was about to be executed defendant objected to it as it was drawn ; another deed was prepared, and executed by her. Held, that evidence was admissible for the plaintiff, that after reading the deed she refused to sign it, that after some negotiation she agreed to give defendant ten feet more ; that they were measured and marked on the ground, and that the marks called for in the deed when she signed were not where they had been agreed to be, and had been marked.</p> <p>4. That the deed had been read .to her, would not affect her right to have it reformed, if in fact a mistake had been made.</p>

<p>1. Nothing but fraud or palpable mistake is ground for rescinding an executed contract.</p> <p>2. A partner sold his interest in the firm to his fellows ; in a proceeding about six years afterwards, to rescind the sale, he alleged that his interest had been represented by one of them as being of less value than it was : Held, that as partner he had a right to examine the books, &c., and not having availed himself of the means of information he had no ground for relief.</p> <p>3. Partners bought the interest of a fellow, through a third person, concealing that the purchase was for them. Held, that was not per se fraudulent.</p> <p>4. The proof of fraud must be clear and satisfactory to induce a court after a considerable time to avoid a contract deliberately made and fully executed.</p> <p>5. Evidence of fraud in this case insufficient to avoid a contract between partners.</p>

12. This was an action of assumpsit, brought May 24th 1873, by Charles Shriner, endorsee of R. T. Barber, endorsee of G. W. Minsker, against “ William Young et al., trading as Young & Worth.” The cause of action was the following note:— “ 0400. Lock Haven, May 11th 1871. Three months after date we promise to pay to the order of G. W. Minsker four hundred dollars, payable at Lock Haven National Bank, without defalcation; value received.

<p>1. The 38th sect, of Act of February 2d 1854 (Philadelphia Consolidation Act), enacts that “ no debt shall be incurred or loans made by the city without a contemporaneous appropriation of a sufficient annual income or tax to pay the interest and sink the principal in thirty years.” Held, that this is applicable only to funded debts or loans of the city.</p> <p>2. This provision does not require that every contract, although it may eventuate in a debt, shall be accompanied with such appropriation.</p> <p>3. An ordinance appropriated a sum “ to be taken from a loan to be hereafter created * * * for the graduation and masonry for a bridge,” &e. By the ordinance the contract with the builder and his sureties were approved, provided they should furnish to the city solicitor evidence of their ability, &e. Held, that although the appropriation might be invalid, it did not render the contract so.</p> <p>4. There is nothing in the Consolidation Act or supplements requiring that there should be an actual appropriation contemporaneous with a contract made by the councils and not by a head of department</p> <p>5. The provisions in the 26th sect, of the Act of May 13th 1856, requiring a contract to he.made with the lowest bidder, and the 20th sect, of Act of April 21st 1855, as to the approval of the contract and sureties, relate to the usual annual supplies of the departments.</p>

<p>1. A testator directed his executors to' sell all his estate and divide it into eleven, parts, to be invested “ in some safe and good manner,” and held by them in trust for the use of each of his children during the life of each, “ so that the same shall not be liable for any of their debts or engagements the income of the daughters to be paid to them for their separate use, and as either of the children should die, such one’s share to descend to his or her child or children, grandchild or grandchildren, in the same manner as if such child had been possessed of the share absolutely and had died intestate; but if either should die without child or other descendant, to go as such child by will should appoint. Held, to be an active trust, as the purposes of the testator could not be fulfilled without the possession by the executors of the fund.</p> <p>2. Ashhurst’s Appeal, 27 P. F. Smith 464; Earp’s Appeal, 25 P. F. Smith 119, followed.</p>

<p>Error to the District Court of Philadelphia: Of January Term 1874, No. 262J.</p> <p>This was an action of assumpsit, brought November 12th 1878, by David Manheim against “ William T. Martien, David R. Smith, Washington J. Bevan and John T. Wallace, co-partners, trading as the Coaquannoek Smelting and Mining Company, and also as Bevan & Wallace.”</p> <p>The action was brought to recover on a book account, a copy of which was filed, also on a bill of exchange drawn by “ Bevan & Wallace” on W. T. Martien, in favor of the plaintiff, at fifteen days sight, and protested for non-acceptance and non-payment; also on a very large number of orders of small amount drawn by “ Bevan & Wallace,” on the plaintiff, to be charged “ to our account,” and orders on Bevan & Wallace and accepted by them in favor of plaintiff. The writ was served on Martien and returned “Nihil” as to the other defendants.</p> <p>Martien filed an affidavit of defence as follows:—</p> <p>“ That he has a legal defence to the whole claim sued on, of the nature following. That he never was, and is not now, a member of the firm of Bevan & Wallace, which firm purchased the goods sued on in the copy filed. That he is a member of the firm trading as the Coaquannock Mining and Smelting Company, but said firm never authorized the purchase of the goods sued for. And deponent believes that said plaintiffs have charged the firm, of Bevan & Wallace with said goods, and that said firm is indebted to the firm of the Coaquannock Mining and Smelting Company. All of which deponent will prove in the trial of the case.”</p> <p>The court held the affidavit insufficient, and entered judgment for the plaintiff; the damages were assessed at $2022.</p> <p>This was assigned for error on the removal of the record to the Supreme Court by thé defendant.</p>

<p>1. Settlements of family disputes are favorably regarded in law and equity, and are supported as beneficial in themselves, and as conducing to peace and harmony where it should most especially exist.</p> <p>2. A bill for specific performance of such agreement is an appeal to the conscience of the chancellor, who exercises sound discretion under all the circumstances; he will not interfere if the bargain be hard or unconscionable, the terms unequal or the plaintiif taking undue advantage from the strict legal construction of the words.</p> <p>3. Unless it be perfectly clear that the minds of the parties have been in accord on all material parts of the agreement, a chancellor will not interfere, but leave the parties to their legal remedies.</p> <p>4. In the compromise of family disputes, the agreement should he comÍilete in itself, not a mere aim looking to future adjustment of details, and eaving it so that it may he a source of future litigation.</p> <p>5. The agreement in this case not enforced as a family settlement.</p>

<p>1. An unmarried woman conveyed all her estate in trust to invest it and pay the income to her during life for her separate use whether covert or sole, so as not to be liable to the control or debts of any husband she might have, nor to ‘‘ any charge, &c., or anticipation by her,” &c.; in case she should marry and survive her husband, the trust for her separate use should continue whilst discovert and during any future coverture; after her death, to such persons and estates as she by will might appoint, and in default of appointment for the use of her children or child living at her death and the issue of any who might be dead, ‘‘their heirs, executors and administrators as tenants-in-common, such issue to take the shares which the parents would have taken any husband who might survive her to take a child’s share; if she should leave no issue the estate to pass to her right heirs and next of kin according to the intestate laws. Held, to be an active trust.</p> <p>2. The trust was not for coverture, but to bind the hands of the cestui que trust and take the control of her estate from her for life, to secure it against loss or improvidence.</p> <p>3. This trust being for life with remainder, to living children and not to heirs general or issue, the life estate and remainders did not coalesce.</p> <p>4. Ashhurst’s Appeal, 27 P. F. Smith 464; Earp’s Appeal, 25 P. F. Smith 119, similar trusts.</p>

<p>1. A man and woman were married in New York and removed to Ohio, where they lived a number of years : the husband left his residence and came to Philadelphia; the wife about the same time went to Wisconsin ; six months afterwards the husband removed to Michigan, and in September 1867, a year afterwards, commenced proceedings in divorce in a court there, alleging desertion by the wife occurring in Ohio; process was issued commanding the wife to appear, &c.; the sheriff returned that he could not serve it; publication was made; the wife not appearing, testimony was taken and in January 1868, a decree of divorce was decreed. The wife in 1869 moved to Michigan and commenced proceedings in the same court to annul the decree. The husband died in Philadelphia in 1871Held, that the decree of divorce was void as to the rights of parties in Pennsylvania and that the wife was entitled to a share of the husband’s estate as widow under the intestate laws of Pennsylvania.</p> <p>2. The wife residing in Michigan at the time of the husband’s death, she was not entitled to the $300 under the Act of April 4th 1851.</p>

<p>1. Paving the footway and curbing had been done by a property owner on Broad street, Philadelphia, upon the requirement of the authorities; about four years afterwards, the roadway was narrowed by councils, the footway widened, and he required to put up a new and costly curb ; having neglected this the city did the work and filed a claim against his property : Held, that the foregoing facts, and that the streets, &c., were in good condition and required no repair, were a defence to the scire facias on the claim.</p> <p>2. A power to pave conferred by Acts of Assembly implies a power to repair and repave when the condition of the streets requires it; of this the eity authorities may primfl, facie judge.</p> <p>3. A power conferred by the legislature to take up, alter and relay pavements and curbs at the pleasure of a municipal corporation and at the expense of the property owners, who had recently paid for a good pavement, is in derogation of the right of private property as laying a special tax on a small class.</p> <p>4. The 40th section of Act of February 2d 1854 (Consolidation Act), does not intend to confer the power on the city to make such improvement, except at the expense of the city.</p> <p>5. The foundation of the power to tax specially, is the benefit the object of the tax confers on the owner of the property.</p> <p>6. Paving at the expense of the adjoining owner means the paving that is customary.</p> <p>7. Acts of February 2d 1854, sect. 40, and April 6th 1838, sect. 3, examined.</p> <p>8. Philadelphia v. Hoxie, 2 Wright 339; Philadelphia v. Tryon, 11 Casey 402; Heed v. Erie, 29 P. F. Smith 346, remarked on.</p>

<p>1. In slander, general reports of tbe truth of the charges are not admissible for any purpose.</p> <p>2. Under the plea of the general issue only, whilst the plaintiff’s general character may be assailed, neither particular reports nor the general currency of the particular charge can be given in evidence.</p> <p>3. Conroe v. Conroe, 11 Wright 201; Fitzgerald v. Stewart, 3 P. F. Smith 343; Long v. Brougher, 5 Watts 439: Lukehart v. Byerly, 3 P. F. Smith 418, binding authorities.</p>

155. This was an action of ejectment commenced December 27th 1870, by John Mitchell and Mary his wife, in her right, against Martha MeConahey, for the undivided fourth part of a tract of 200 acres of land.