Volume 81 — Pennsylvania State Reports

<p>Error to the District Court of Philadelphia: Of January Term 1874, No. 160.</p> <p>This was an action of assumpsit, brought November 4th 1871, by Dell Noblit, Jr., and others, trading as Noblit, Brown & Noblit, against Albert L. Bonnaffon.</p> <p>The claim of plaintiff as filed was $765.66, for goods sold and delivered to the said defendant, at his store, No. 45 South Second street, where he traded under the style of Richmond & Co. The goods were articles used in the manufacture, &c., of furniture; commencing May 3d 1870, and ending July 9th of the same year.</p> <p>Previously to the 10th of January 1870, E. M. Broomall and W. B. Richmond, trading as Richmond & Co., were engaged in manufacturing and selling . furniture at No. 45 South Second street, Philadelphia; on that day they entered into the following agreement with the defendant:—</p> <p>a 1. The said A. L. Bonnaffon agrees to loan to the parties of the second part his notes to the amount of fifteen thousand dollars, payable at such times and in such sums as may be convenient to the parties.</p> <p>“ 2. In consideration thereof the parties of the second part hereby assign and transfer unto the said Albert L. Bonn'affon the furniture, stock, fixtures, good-will, debts, accounts and all the assets of the firm of Richmond & Company as set forth in Schedule A, annexed hereto and made part hereof.</p> <p>“ 3. The said Albert L. Bonnaffon' agrees to employ the parties of second part as his agents in disposing of said furniture and stock at private or public sales, and in collecting in the said debts, with a view to closing up the said business on or before July 1st</p> <p>1870. The said agents shall render accounts, and at same times and oftener and pay over unto the said Albert L. Bonnaffon all moneys received from said business.</p> <p>“ 4. The said Albert L. Bonnaffon will apply the said moneys to the payment in first place of the outstanding liabilities of said firm as set forth in Schedule B, annexed. Secondly, in meeting his notes aforesaid. And in the event of any balance remaining after payment thereof with all expenses, interest, and costs whatsoever, the same shall be paid to the parties of the second part.</p> <p>* * * * * * 1 *</p> <p>“W. B. Richmond to draw one hundred and fifty per month till settled.”</p> <p>The schedule attached contained a very large number of items of furniture, with the value set opposite each, amounting in the whole to $9555.51.</p> <p>The plaintiff gave evidence that the goods wrere sold and delivered at the store No. 45 South' Second street; they sold the goods on the credit of Richmond & Co.; they did not know the defendant; plaintiffs had been dealing with Richmond & Co. about a year or eighteen months; they took notes for all these goods from Richmond & Co. The goods were all paid up to May 3d 1870 by Richmond & Co. The plaintiffs first knew of the agreement between Richmond & Co. and the defendant, in February 1871. After the agreement with defendant, Richmond & Co. proceeded to close out the business and agreed to dissolve the partnership; they had then enough to pay their debts. The furniture was in all. stages of progress ; furniture was made up after that time; defendant was there frequently through all the store; Richmond & Co. were trying to get some one to go into business with them, but not having found any one, defendant said to one of the partners it was not policy in him to buy more goods'; be never authorized any of the firm to buy goods; he had no knowledge of their buying goods except from seeing them finishing goods and seeing the materials for finishing. Richmond & Co. purchased large amounts of goods from others during the time covered by this account; this appeared by their books to which defendant had access; other persons who sold to Richmond & Co. had no knowledge of defendant’s interest. Richmond & Co. closed out by sales at auction and at private sale; defendant received pai’t of.the proceeds of the private sale, but not those from the auction sales; the proceeds not paid defendant were applied to paying the debts of the concern.</p> <p>There was other evidence of the same character.</p> <p>The plaintiffs having closed the court, Briggs, J., directed the entry of nonsuit, which the court in banc refused to take off.</p> <p>The plaintiffs assigned this for error, on the removal of the record to the Supreme Court.</p>

76. In the estate of George Derbyshire, deceased. George Derbyshire, who was a ship-builder in Chester City, died on the 9th of June 1872, having on the 18th of March 1872, made his will, of which he appointed Amos Gartside his executor.

<p>1. Philadelphia, through the chief commissioner of highways, contracted' with Dyer to pave, &c., a street, the work not to be doné after December 1st and before April 1st; the cost, &c., of the work was chargeable to the lot owners on the street, in proportion to their front. The work was done after December 1st. The city, for the use of Dyer, filed a claim against a lot-holder and issued a scire facias on it. Held, that the city might waive the condition, and the lot-holder could not defend on the ground that work was done after December 1st.</p> <p>2. Under the Act of April 19th 1843, sect. 1, the lot-holder could defend only on the ground that the work was not done, the materials not furnished, the price excessive, or that it had been paid or released.</p> <p>3. Hutchinson v. Pittsburg, 22 P. P. Smith 320; Philadelphia v. Wistar, 11 Casey 427 ; Philadelphia v. Burgin, 14 Wright 539, followed.</p>

<p>Certiorari to the Court of Quarter Sessions of Philadelphia: No. 255, to January Term 1874.</p> <p>These proceedings commenced on the 28th of November 1871, on the petition of Thomas Costigan, representing that he owned property in the Twenty-fourth ward of Philadelphia through which Thirty-fourth street, as laid down on ,the public plan of the city, would pass; that the city councils, by a resolution of July 11th 1871, directed the chief commissioner of highways to notify owners of property over which Thirty-fourth street would pass, that after three months from the notice the street would be required for public use, according to the widened and straightened lines, as an approach to the park. The prayer was for the appointment of a jury of six freeholders to view the premises and assess the damages which he or other owners of ground would-sustain by opening, straightening and widening Thirty-fourth street.</p> <p>Six jurors were accordingly appointed.</p> <p>By Act of March 26th 1867, sect. 1 (Pamph. L. 547), a large area of ground was vested in the city of Philadelphia for a public park.</p> <p>By section 3d of the act it was provided “ that the owners of the ground should be paid for it according to the value to be ascertained by a jury of. twelve freeholders, to be appointed by the Court of Quarter Sessions, or by agreement between the commissioners of the park and the owners of the property, to be confirmed by the Court of Quarter Sessions. Whenever it should be necessary to have recourse to a jury to assess damages for any property to be taken as aforesaid, the said jury shall estimate the advantage to property adjoining or in the vicinity, and said jury shall proceed, and their awa-rd shall be reviewed and enforced in the same manner as provided by law in the opening of roads in the city of Philadelphia.”</p> <p>By a supplement to the foregoing, act, passed April 14th 1868 (Pamph. L. 1083), it is provided that additional ground should be vested in the city for park purposes, and:</p> <p>“ Sect. 24. That the councils of the city of Philadelphia be and they are hereby authorized to widen and straighten any street laid upon the public plans of said city, as they may think requisite to improve the approaches to Eairmount Park.</p> <p>“ Sect. 26. The damages for ground and property taken for the purpose of this act shall be ascertained, adjusted and assessed in like manner as is prescribed by the act to which this is a supplement.”</p> <p>On the 31st of July 1873 the jury reported, assessing damages to a large number of persons, amongst others to Hugh Mcllvaine and Thomas Costigan.</p> <p>Mcllvaine filed three exceptions, of which two were:—</p> <p>1. The councils of the city had no lawful authority to enact said resolution.</p> <p>2. This court obtained no jurisdiction by virtue of the resolution under which the petition (on which the report was filed) was presented.</p> <p>The city also filed exceptions which did not appear by the record.</p> <p>Upon these exceptions the court made the following decree:—</p> <p>“ All the exceptions to the report of the jury are dismissed, except the third exception on behalf of the city, which is sustained, and the report is confirmed so far as relates to the assessment of damages for the opening, widening and straightening of the street, from Market street to Sycamore, and the remainder of the report is set aside.”</p> <p>' A certiorari was issued at the instance of Mcllvaine without obtaining a special allocatur by one of the judges of the Supreme Court, as is provided by the 2d section of the Act of March 28d 1829, Pamph. L. 93, “ relative to the opening of roads in the county of Philadelphia.”</p>

<p>1. The engine, machinery and cage constituting an elevator are realty, when put in by the owner as a part of his-building.</p> <p>2. A. mechanic’s lien may be created for an elevator by the owner or a principal contractor.</p> <p>3. Levan contracted with the defendant to put an entire elevator into his store; Levan contracted with the plaintiffs to furnish the cage, part of the elevator. Held, that the plaintiffs had no mechanics’ lien against defendants’ building.</p> <p>4. The Mechanics’ Lien Law does not confine the construction of a building to a single contractor, the owner may commit its main divisions to different contractors with power to each in his department to bind the building with a lien.</p> <p>5. Levan was not a contractor for a primary division of the building having the power of the owner to bind the building; his contract was minor and auxiliary.</p> <p>6. Duff v. Hoffman, 13 P. P. Smith 192; Harlan v. Rand, 3 Casey 511; Singerly v. Doerr, 12 P. P. Smith 9, distinguished.</p>

<p>1. Water-mains were laid by the authorities of Philadelphia in the street in front of houses of Smith ; he connected with the main water-pipes to the houses; he paid the city for laying the main ; also the water rents for two years. The water froze in the main, and in consequence the connections bursted ; Smith’s tenants refused to pay rent, and his houses were without tenants, &c. Alleging that 'the freezing occurred by the negligence of the city in laying the main too near the surface, he brought an action against the city to recover damages. Held, that he could recover back the water-rents but not for the other matters.</p> <p>2. Introducing water by the city into private houses is not a contract, but a license which is paid for.</p>

<p>1. A debtor was adjudged a bankrupt; whilst the proceedings in bankruptcy were pending he was arrested as a fraudulent debtor under the Act of July 12th 1842 and gave bond to apply to the Court of Common Pleas for the benefit of the insolvent laws. He made his application, which was dismissed because of the pending bankrupt proceedings. In an action on the bond, Held, that the dismissal of the application was a defence to the action.</p> <p>2. In the action on the bond, defendant pleaded that it had been obtained in a proceeding which was exclusively cognisable in the United States Bankrupt Court, the debtor having been previously adjudicated a bankrupt. The plaintiffs replied that the cause was not exclusively within the jurisdiction of the United States court and averred that the District Court of Philadelphia where the action was brought had jurisdiction and put themselves on the country. Held, the replication raised an issue of law and was to be treated as a demurrer, and defendant was entitled to judgment.</p> <p>3. The effect of the plea was to assert that the action was for a debt'for which the debtor would be discharged under the Bankrupt Law; if this were not so, he should have so replied.</p> <p>4. The defendant pleaded also “non est factum” and “nil debet;” the verdict was for the p'aintiffs; it was to be considered as rendered on these two pleas, as raising issues of fact; the judgment entered on the verdict was necessarily on the whole record and therefore erroneous.</p> <p>5. Under the Bankrupt Laws a debtor can be proceeded against for a debt created by fraud, embezzlement, defalcation as a public officer, or while acting in a fiduciary capacity ; unless the debtor had been arrested for one of these causes, the bond was discharged by his adjudication as a bankrupt.</p> <p>6. Barber v. Rodgers, 21 P. F. Smith 362, followed.</p>

<p>Error to the District Court of Philadelphia: Of January-Term 1874, No. 267.</p> <p>This was an action on the case by Michael Hey, against the city of Philadelphia, brought to March Term 1872 of the court below for negligence in not sufficiently guarding one of the roads in the park, by reason of which the plaintiff’s horse fell into the river Schuylkill and was drowned, and the carriage and harness injured.</p> <p>The case was tried before Hare, P. J.</p> <p>The plaintiff testified that he was driving home through Fairmount Park with two daughters; he proceeded: “I crossed the Reading Railroad, and- was approaching the Connecting Railroad bridge. Just as I came around the bend a train on the other side approached the bridge. The bridge is very high overhead where it crosses the road. My horse began to get restive. There were high rocks on one side of the road; on the other side there was a steep bank faced with rough stonés, at the bottom of which was the river. A horse could not get to the left because of the high rocks, and if he went to the right there was nothing but this hank and the river. I was afraid on account of my daughters. I got out and held my horse facing the rocks. I held him by the head facing the rocks. I got out because I was afraid my horse might back over the bank. There was no fence, and I was afraid for my daughters. My horse backed me, and my foot slipped on a rock at the side of the road, and I fell. The horse got away from me; he turned short round and upset the wagon, and when I got up the horse and wagon were in the river. I saw only the wheel. I did not see them go over, but when I got up they were in the river. * * * There was no fence and no barrier between the road and the river. * * * The road was a good smooth road, about as wide as Sixth street. There was a foot-way between road-bed and the river. It was raised about usual height and curbed. ' It was about six inches higher than the middle part of the road. My horse was very gentle. He was not afraid of trains or locomotives. I was in the habit of driving close by railroads; could drive him close up to a train in motion, and he never shyed. Train on bridge was high overhead; would be likely to frighten any horse.”</p> <p>Caroline Hey, a daughter, testified : “ When we came round the bend of the road the horse became restive and uneasy. A train was just coming on the bridge. We could not see until we came round the turn, because of the rocks. My father got out and held the-horse by the head. He turned him away from the bank, and faced him close up to the rocks on other side. The horse pushed my father backwards. He got upon a large stone or rock and slipped and fell. Then the horse turned short, the wagon upset; and my sister and I were thrown out, and when we got up the horse and wagon were in the river, and my father was halloaing. * * * The rocks on one side were very high, so that there was no passage in that direction. On the other side the bank was'very steep down to the river. The face was rough, covered with rough stone. If a horse and carriage got over it could not stop until it got into the river. I drove often with my father. The. horse was very quiet and gentle, never shyed at locomotives; have often seen him driven close to trains and locomotives, both standing still and when in motion; he never showed any fear or uneasiness.”</p> <p>Other witnesses testified substantially in the same manner and also to the value of the horse, &e.</p> <p>Another.witness testified: “I know place where accident happened; approaching it you can’t see bridge till you come round curve; the trains run very high over head, and it is a place where even quiet horses are apt to shy and back. A great many pleasure carriages pass there all the time. Horses do frighten there; my own has taken fright and shyed and backed there, and he is a very quiet horse and fearless of locomotives. Under such circumstances some drivers would think it best to get out and hold the horse, and some would sit in wagon and trust to reins. If I .was alone I would risk it; if I had women in the carriage I would get out. I knew Mr. Hey’s horse; he was very gentle and quiet; not apt to shy at locomotives.”</p> <p>The court submitted the question of negligence to the jury reserving the following points:—</p> <p>1. Was there any evidence of negligence on the part of the city in the construction of the road?</p> <p>2. Was there any evidence that the damage to the plaintiff was the result of negligence on the part of the city ?</p> <p>The jury found a verdict for the plaintiff for $505; subject to the reserved points. The court subsequently entered a verdict for the defendant non obstante veredicto, Judge Hare delivering the following opinion:—</p> <p>“The plaintiff was returning to the city from a drive in the East Park. A turn in the road brought him to the margin of the Schuylkill, and in full view of the bridge of the connecting railway. He had the stream on one side, and a high bank of rocks or earth on the other. The road was wide and level, but there was a sharp declivity towards the river, with no guard or protection except a sidewalk raised some six inches above the road. A train was passing over the bridge, and the plaintiff’s horse took fright. He got out, took the animal by the head and turned it towards the bank. The horse continuing restive, the plaintiff got on a rock to obtain a better hold, but lost his footing and fell between the fore feet of the horse. The animal, freed from all restraint, turned short round, overset the wagon, sprang across the sidewalk into' the river, and was drowned. The plaintiff contended that the city was guilty of negligence in not erecting a guard between the road and the stream, and that the accident was atti’ibutable to that cause. The question was left as one of fact to the jury, and the law reserved for the consideration of the court.</p> <p>“ The question may be considered under two heads: First, is there evidence of negligence in the construction of the road; and next, did that negligence occasion the loss. I have found it exceedingly difficult to arrive at a satisfactory conclusion on either point. That the city is responsible for maintaining her highways in a 'safe condition, and that the question whether a particular highway is safe, must ordinarily be left to the jury, are propositions which no one is likely to dispute. It is also clear under the authorities, that when the road is steep or narrow, with a river, ravine or ditch, at the side, a fence or barrier should be erected of sufficient height to prevent vehicles from being forced off the road by any sudden or ungovernable movement of the animals by which they are drawn. But I am not prepared to admit that this precaution must be observed where the way is level, and there is no reason to suppose that an accident will occur with horses that are obedient to the whip and rein. One who drives a horse which cannot be controlled under ordinary circumstances, and where there is no peculiar cause of alarm, takes the risk, and cannot justly ask compensation if an accident.occurs. If this were the whole case, I should incline to think that the question should have been withdrawn from the jury. But there are other circumstances which require consideration. At the point where the accident occurred, the road crosses one railroad track at grade, and then passes almost immediately under another. There are sights and sounds which may excite or alarm a horse that is ordinarily quiet and well broken. There is no other convenient means of access to a park which has been laid out for the health and recreation of the citizens. It was, therefore, the duty of the Park Commissioners to anticipate the danger arising from the proximity of the tracks, and take more than ordinary precautions against the accidents w'hich the situation was.calculated to produce..</p> <p>“We have still to consider whether the negligence of the defendant was a proximate and efficient cause of the injury for which the plaintiff seeks to recover. The accident originated in causes over which the city had no control, and for which she is not answerable. These were: first, the passage of the railway train ; next, the ungovernable temper of the horse ; and finally, the plaintiff’s fall, which left the animal without a master. Up to this point there is certainly nothing for which the city can justly be held answerable.</p> <p>“ Does any responsibility attach for what ensued ? A horse which breaks loose from its driver and runs away, under the impulse of fear, becomes, for the time being, a blind brute force. His course is less susceptible of calculation than that of the winds or waves, or of the melting snows on a mountain. Whether he receives or occasions injury, the presumption is, that no one is answerable. To entitle the owner to compensation from the public purse, it should distinctly appear, not only that the authorities were negligent in the construction of the highway, but that the injury would not have been sustained but for their default. This can hardly be alleged in the present instance. In view of what might- have happened, we may regard the actual result as fortunate. It is contended, that if the side of the road had been guarded by a fence, the horse would not have been drowned. The soundness of this inference is questionable, because a creature in such a state of terror might have surmounted any ordinary harrier. If accepted as just, it would not aid the plaintiff. The horse would, in all probability, have sped down the road and been brought into collision with the archway of the bridge, or spme passing vehicle. Nor is this all; in such a crowded thoroughfare, human life might have been sacrificed. If it he said that this is speculative, and that the inquiry, whether the want of a safeguard was an efficient and concurrent cause, was one of fact for the jury; the answer is, that guessing is no part of the judicial function, by whomsoever exercised. The plaintiff must present some ground on which the mind can proceed with certainty to judgment. If he fails in this* he is not entitled to a verdict. This may sometimes be unfortunate ; but the evil would be greater if the jury were permitted to draw inferences at random.</p> <p>“ It is established, in Maine and Massachusetts, that no recovery can be had for an accident occasioned by a frightened or vicious horse, although it might not have occurred but for a defect in the highway at the point where the horse is injured, or the carriage broken: Davis v. Dudley, 4 Allen 557 ; Titus v. Northbridge, 97 Mass. 258; Eogg v. Nahant, 98 Id. 578; Moulton v. Sanford, 51 Maine 127; Moore v. Abbott, 32 Id. 66. Agreeably to' these authorities, if the horse was unmanageable when the accident occurred, it is immaterial, so far as the public-liability is concerned, that the driver kept his seat and the reins, and might have regained his control over the animal. I incline to think that as long as the struggle between the human and brute will continues, and there is a possibility that the man may prevail, he is entitled to protection against any default tending, although incidentally, to turn the scales. See Lower Macungie Township v. Merkhoffer, 21 P. P. Smith 276. But the point does not arise in this instance, where the occupants of the carriage were all precipitated to the ground before the horse made the plunge which led to his death.”</p> <p>The plaintiff took a writ of error and assigned for error the entering of judgment on the reserved points.</p>

<p>Error to the District Court of Philadelphia: Of January Term 1874, No 294.</p> <p>This was an action of assumpsit, brought February 8th 1868, by Theophilus A. Ashburner, against George D. Parrish and others, trading as George D. Parrish & Co.</p> <p>The declaration was in the common counts; it was filed February 6th 1869 ; the same day a bill of particulars was filed, setting out that the plaintiff claimed the sum of $198,600, received by the defendants for his use on a contract, dated December 3d 1864, between Col. H. Biggs, quarter master, &c., of the United States army and the plaintiff, by which plaintiff agreed to have manufactured and delivered to the United States Arsenal, Philadelphia, on or before April 3d 1865, thirty thousand blankets, according to the quality and on certain conditions and terms specified in the contract, payment to be made by the United States upon delivery, &c. The last specification in the contract was :—</p> <p>“ 6. It is further agreed and expressly conditioned that no member of Congress is or shall be admitted to any share or part of this contract or agreement, or to any benefit to arise therefrom; that it is not transferable; that any sale, transfer or assignment of it (except under a process of law) shall and will be considered an abandonment of it, and the said party of the second part, his or their securities be held responsible for all loss, delay or damage to the United States, which may arise from such abandonment.”</p> <p>The plaintiff averred that the “ said sum had. been received by defendants from the 27th day of April 1865 to June 8th 1865, both inclusive, on vouchers delivered by the said plaintiff to the said defendants.</p> <p>May 1st 1869, the plaintiff’s counsel gave to the defendants’ counsel the following notice:—</p> <p>“ Under the common counts, plaintiff will seek to recover a reasonable-compensation for the procurement of the contract, of w'hich a copy was sent you February 6th 1869; that is to say, the sum of five per cent, on the aggregate amount received by the defendants under that contract.”</p> <p>On the 3d of April 1873, by leave of the court the plaintiff amended his hill of particulars as follows :—</p> <p>“ Under the common counts, plaintiff will seek to recover compensation for the use of his name, and the personal assumption of responsibility in the contract of which formerly notice was given, and for services in regard thereto, which were not within the scope of his employment as salesman of the defendant.” '</p> <p>On the trial December 30th 1873, before Briggs, J., the plaintiff offered in evidence the original of the contract hereinbefore set forth: the defendants objected to the offer because the demand of the plaintiff in support of which the evidence was offered, was void as against public policy and the Act of Congress, June 2d 1862.</p> <p>The court rejected the offer and sealed a bill of exceptions.</p> <p>The plaintiff offering no other evidence, the court directed a non-suit.</p> <p>The Act of Congress of June 2d 1862 (2 Brightly’s U. S. Digest, p. 93), provides amongst other things, that government contracts shall be signed by the contracting party; that the officer making the contract shall make affidavit that he has not corruptly allowed any advantage to the contractor or any other person.</p> <p>The plaintiff took a writ of error and assigned the rejection of this offer of evidence for error.</p>

<p>1. Defendant laid a foundation extending as a party wall on his neighbor’s lot; he erected a brick wall, also as party wall, on part of the foundation ; he could not by erecting a wall wholly within his own line prevent the erection from being a party wall.</p> <p>2. Defendant was bound to make the erection a solid wall; by making openings in it he became- a trespasser.</p> <p>3. If a builder starts the foundation as a party wall, thus taking the land of the adjoiner, he must carry it up so as to give the adjoiner all the benefits of a party wall.</p> <p>4. Vollmer’.s Appeal, 11 P. F. Smith 118, followed.</p>

<p>1. By Act of April 21st 1855, no contract for new paving, Ac., shall be binding on Philadelphia, “ without an ordinance therefor.” A majority of owners of property on a part of Becket street entered into an agreement with pavers to pave in front of their property, under direction, &c., of the commissioner of highways and agreed to pay for it; an ordinance was afterwards passed directing the commissioner to contract with a paver selected by a majority of the owners, &e., on that part of Becket street, the cost to be paid by them. The city entered into a contract accordingly. Held, that the contract was valid.</p> <p>2. An ordinance provided for the mode, &c., of paving, and that the commissioner should certify on bills for paving that it had been done in a workmanlike manner, and that no property owner should be liable for paving unless done in accordance with the ordinance. The commissioner supervised the paving whilst in progress and approved it when finished. Held, to be sufficient without the certificate.</p> <p>3. The Act of 1855, provided that no contract should be made by a head of department for new work unless it and sureties be approved by the city solicitor and councils. The bill for paving was certified by the surveyor and solicitor. Held, that the approval need not be endorsed, and the city joining as legal plaintiff,, with the other acts, was a ratification of the act of the department. '</p> <p>4. The agreement of the lot-owners was for paving to a point east of Forty-third street, the ordinance authorized a contract to Forty-third street, the contract with the city was to pave to Forty-third street; paving was done to the point of the owners; between that and Forty-third street an Act of Assembly had previously forbidden streets to be opened and no paving had been done there. Held, that the contractors were entitled to be paid for the paving done.</p> <p>5. In questions involving the liability of defendants for cost of municipal improvements, the relations between the city and those with whom the contract is made is outside the line of legitimate inquiry.</p> <p>6. When the improvements are within what were the incorporated districts of Philadelphia on the 19th of April 1843, under the act of that date defendants can deny only that the work was done or materials furnished, or that the price was too great or had been paid.</p> <p>7. An ordinance required before a paving contract should be awarded, that the person applying should give notice by advertisement, Ac., two weeks before’the application, of his name, the place and quantity of paving, the names and residences of the signers for his selection, with a request to lot-owners to meet the department at a time named to show cause why the contract should not be awarded, Ac.; the agreement with owners was March 27th, for a cobble-stone pavement; there was no authority to lay any but a rubble pavement until June 21st, and the contract was June 24th ; there was no evidence of advertisement. Held, that the want of advertisement was fatal.</p> <p>8. “ Omnia prcesumuntur rite esse acta," heals only apparent irregularities where jurisdiction is clearly vested.</p> <p>9. The city could have waived irregulai’ities and informalities ; jurisdiction over the lot-owner could be obtained only under the rules prescribed by law.</p> <p>10. Hutchison v. Pittsburg, 22 P. F. Smith 320 ; Philadelphia v. Burgin, 14 Wright 539; Philadelphia v. Edwards, 28 P. F. Smith 62; Pittsburg v. Walter, 19 P. F. Smith 365, referred to.</p>

<p>Error to the District Court of Philadelphia: No. 327, to January Term 1874.</p> <p>This was an action of replevin for twenty-one bales of cotton, brought May 20th 1872, by Thomas Henry against the Philadelphia Warehouse Company.</p> <p>The cause was tried January 14th 1874.</p> <p>The plaintiff testified that in April 1872 he was in New Orleans and went to J. Yaudry, Jr., a cotton broker, to purchase cotton; Vaudry took him to Foster & Gwyn, cotton factors, and he bought from them twenty-one bales; he paid them $1976.82 for the cotton, and took their receipt, and left the cotton with them ; they said they would see it shipped; a draft was drawn on him by Vaudry for $1939.14, which he refused to pay.</p> <p>Gwyn, of the firm of Foster & Gwyn, testified that plaintiff was introduced to him by Yaudry, in April or May 1872, in reference to the purchase of cotton ; Yaudry, as broker of plaintiff, purchased twenty-one bales from them ; the price was $1976.82, which was paid to them by Yaudry; on re-weighing there proved to be some pounds short, and they paid back to Yaudry $37.68; -the plaintiff did not purchase the cotton in person; they delivered the cotton to Yaudry; the cotton was purchased for plaintiff, but in New Orleans the broker is considered the purchaser unless otherwise specified.' Yaudry paid for it before delivery; he had an ■order from them for its delivery, but suffered it to remain where it was for want of a steamer to ship it in. The cotton was paid for by cash $176.82, one check for $300, and three checks for $500 each, of a Philadelphia bank on a New York bank.</p> <p>The checks were in evidence ; one of them was.:— .</p> <p>“Union National Bank, Philadelphia, April 16th 1872.</p> <p>“ Pay to the order of Thomas Henry, five hundred dollars.</p> <p>“P. A. Keller, Cashier,</p> <p>“To the Fifth National Bank, New York.</p> <p>“$500.”</p> <p>Endorsed: “Thomas Henry, Foster & Gwyn.”</p> <p>The others were similar.</p> <p>The following is Foster & Gwyn’s receipt:—</p> <p>“ Received, New Orleans, 13th April 1872, of Thomas Henry, Esq., nineteen hundred and seventy-six dollars and eighty-two cents, for amount tw.enty-o'ne bales cotton, sold him this day.</p> <p>“ $1976.82. Foster & Gwyn.”</p> <p>The plaintiff gave in evidence : — ■</p> <p>“ Invoice of 21 B. C. purchased from Messrs. Foster & Gwyn, ac. of Mr. Thomas Henry.”</p> <p>Here follow the number and weight of each bale.</p> <p>“ 21 B. 0. weighing 10,073 lb. @ 19f cts., . $1976.82</p> <p>“ Brokerage, J per cent., .... 9.88</p> <p>“ J. Vaudry, Jr.</p> <p>“New Orleans, April 13th 1872.”</p> <p>Under objection and exception the court admitted the following letter produced by plaintiff on call:—</p> <p>“New Orleans, April 27th-1872.</p> <p>“ Mr. Thomas Henry, Esq.,</p> <p>“ Dear Sir: — Yours of the 20th received. The reason why you have not received the hill of lading of the 21 b. c, was that the steamers for Philadelphia was full, and I could get no freight. I will ship your 21 b. c. on the steamer Liberty, via Baltimore. She leaves on Thursday evening. * * *</p> <p>“ J. Vaudry, Jr.”</p> <p>For the defendants there was evidence that about April or May 1872 the Orescent City National Bank of New Orleans, in the usual course of business, purchased from Vaudry his draft on the plaintiff for $1939.14; at the same time he delivered to the bank as security a bill of lading to himself from the Baltimore and Havana Steamship Company at New Orleans, for twenty-one bales of cotton on board the “ Liberty,” bound for Baltimore, &c. Vaudry endorsed the bill of lading to the Crescent City Bank, and the cashier of that bank endorsed it, “Deliver to the order of the National Bank of the Republic, New York.” The bill of lading was sent by the Orescent City Bank to the Bank of the Republic. The draft was endorsed by the Bank of the Republic to the Mechanics’ National Bank of Philadelphia, and was returned protested. Vaudry’s draft on Henry came to the Mechanics’ Bank of Philadelphia with the bill of lading attached ; on the refusal of payment of the draft by plaintiff, that bank took possession of the cotton and stored it with the defendants.</p> <p>By the Revised Code of Louisiana, a bill, of lading may be transferred by endorsement thereon, and -the party receiving such transfer shall he regarded as the owner of the property named in the bill, so as to secure any pledge or lien made thereof to him.</p> <p>Also, “ All receipts, bills of lading, vouchers, or other documents, issued by any cotton-press owner, wharfinger, forwarder, or other person, boat, vessel, railroad, transportation, or transfer company, as by this act provided, shall be negotiable by endorsement in blank, or by special endorsement, in the same manner and to the same effect as bills of exchange and promissory notes now are.”</p> <p>The court charged:—</p> <p>“If you find from the evidence that Vaudry had possession of and actually shipped the cotton, received bill of lading therefor, endorsed it to the bank, who took it in good faith, your verdict should be for defendants.”</p> <p>The verdict was for the defendants ; the plaintiff took a writ of error, and assigned the charge of the court for error.</p>

<p>1. Police'powers may reach to the destruction of property to prevent the spread of a conflagration ; or to the removal, at the expense pf the owner, of a nuisance tending to breed disease; in either case compensation is not a condition of the exercise of the power.</p> <p>2. The exercise of the police power is generally based on disaster, fault or inevitable necessity.</p> <p>3. The power of eminent domain is conditioned generally on compensation to the owner and is founded in public utility.</p> <p>4. The owner of land on an inland tide-water river has an absolute title to the soil to the high-water line qualified to the low-water line by the public right of navigation.</p> <p>5. Such owner cannot use the soil between these lines to the prejudice of public right, and the state can improve the intermediate space for public use without compensation to him.</p> <p>6. No duty lies on the owner of flat or cripple lands lying between highl- and low-water lines to shut out the stream or to exclude the natural flow of the river by banks.</p> <p>7. The state, from its right to protect navigation, can bank out the water without compensation to the owner ; but cannot improve at his expense.</p> <p>8. The private interests of other owners of similar lands cannot be made a ground for banking at his expense.</p> <p>9. Where the state under her sovereign authority has at her own expense banked out the water and left the owner in possession of the improvement, the duty of repair falls on him.</p> <p>10. The Act of March 25th 1848, to provide for the repairs of meadow banks on the Delaware front, &c., was to compel the repairs of existing banks, not to construct them.</p> <p>11. The Act of 1848 enacts that the district commissioners, upon complaint of any person owning river fronts liable to be damaged by overflow, that the banks are out of repair, &c., give notice to the owner of the part out of repair to repair the same in forty-eight hours; if he neglects, the commissioners shall repair the bank and enter the cost as a lien against the premises and collect it by scire facias, and in defence tb,e owner shall show only that it has been paid; all matters necessary for recovery shall be considered proved by the lien and scire facias. The act provides no mode for determining the necessity for the repair; it therefore does not furnish due process of law within the Bill of Rights and is unconstitutional.</p> <p>12. A law must furnish some just form or mode in which .the duty of the citizen shall be determined before he can be visited with a penalty for nonperformance.</p> <p>13. The proceeding must be in its nature judicial; it is not necessary that it should be before one of the ordinary judicial tribunals of the state.</p> <p>14. Craig u. Kline, 15 P. F. Smith 413 ; Rutherford’s Case, 22 P. F. Smith 82, recognised.</p>

<p>Appeal from the Orphans’ Court of Philadelphia: Of January Term 1874, No. 331. In the estate of Anna B. Cramp, deceased.</p> <p>William G. Cramp and Charles D. Cramp, administrators, &c., of the decedent, filed an account of their administration, which was referred to W. H. Sutton, Esq., to audit, &c., and report distribution. The auditor sat on the 21st of December 1869, to hear the case, after due notice published in a newspaper of the city of Philadelphia. There were present on that day and at four subsequent sittings a number of parties interested as creditors. On the 4th day of February 1870, he made a report distributing the whole fund amongst creditors. No exceptions were filed to his report and it was confirmed absolutely, February 19th 1870. On the 24th of September in the same year, James Holgate presented to the Orphans’ Court his affidavit, setting forth that the “ accountants sold real estate against which deponent had a first-recorded lien, in the sum of $601.19, with accrued interest and costs, and debited themselves with the proceeds ; that said account was referred to W. Henry Sutton, Esq., as auditor, who has filed a report, distributing said fund, without searches and without regard to the lien of deponent; that said sale and account and report of the auditor has recently become known to deponent, and not until the same was filed.”</p> <p>The'Orphans’ Court thereupon issued a citation to the administrators, to show caúoe why the confirmation of the auditor’s report should not be set aside and recommitted to the auditor.</p> <p>To this citation the administrators answered: “ That the said auditor gave due notice of his appointment, and of the time and place at which he would meet the parties interested in said estate; that at said time and place, and at sundry other meetings before him, the creditors of the estate appeared and proved their claims; that the auditor’s report upon the account of these respondents and of distribution of the balance in their hands was filed on the 4th day of February 1870, and confirmed absolutely on the 1.9th day of February 1870; whereupon these respondents proceeded to and did distribute all of said estate in their hands, in accordance with the auditor’s report of distribution, long before the above-mentioned citation was issued; and that at the time said citation was issued these respondents had none of. said estate in their hands, but the said estate had then been fully administered upon the faith that said report was fully confirmed.”</p> <p>In delivering the opinion of the Orphans’ Court in the case, Peirce, J., said: — “ * * * The lien filed was record notice of the petitioner’s claim, and, by force of law, was equivalent to actual notice to them. It was their duty to retain funds to pay it, if not disputed, and at all events to retain sufficient funds to answer the demand if it should be established. If from indifference or a want of knowledge of their duty they did not have the records searched to see what liens were against the property they sold, the lien-creditor is not to suffer; the fault is their own, and if there be loss, the loss should be theirs. They cannot protect themselves by the fact that the distribution was made under direction of the Orphans’ Court. It was their duty to make known to the court, as required by Act of Assembly, this claim and all other claims of which they had either legal or actual notice, and if they had done so, the court would have seen that the rights of the creditor were protected.</p> <p>“ By the Act of 29th March 1832, section 19, whenever there shall not be sufficient assets to pay all the debts of a decedent, it shall be the duty of the Orphans’ Court to appoint auditors to adjust the assets among the respective creditors, according to the order established by law, with a proviso that no creditor, who shall neglect or refuse to exhibit his account to the executor or administrator, within twelve months after public notice, as prescribed by the act, shall be entitled to receive any dividend of the remaining assets. But the respondents cannot avail themselves of this act, because they had what the law regards as notice of the claim, and they chose to permit distribution to be made without giving notice to the auditor or court of' the claim, and protecting it as was their duty. Both of the foregoing acts clearly point out that it is the duty of the executor or administrator to make known to the court the claims against the decedent’s estate, it follows, as a consequence, that the accountants cannot protect themselves by the fact that the distribution was made under the direction of the court, after a confirmation of the auditor’s report, when they failed in their duty of having presented to the court or its auditor a statement of the demand, of which they had legal notice. * * *</p> <p>“ The order asked for in this case will be made.”</p> <p>In his report upon the recommitment, the auditor said :—</p> <p>“ * * * That, conceiving the opinion of Judge Peirce to be binding upon him, notwithstanding the fact that petitioner had due notice, in accordance with the rule of court, of the appointment of the auditor and of a meeting to audit, settle, and adjust the account of said administrators and report distribution of balance, and notwithstanding the fact that the report of the auditor had been confirmed and distribution actually made about one year before the petition in this case was filed, he called before him the counsel of the parties, &c.”</p> <p>[The auditor then reported the facts as to Holgate’s claim.]</p> <p>“ Under the opinion of Judge Peirce the auditor thinks he has no discretion, and conceives it to be his duty, contrary to his own convictions, to redistribute the fund. It was, indeed, suggested that as the accountants had distributed the money before the order to recommit had been made, there could be no distribution of the proceeds other than that which had already taken place; but as such distribution was set forth in the answer to the petition, and not deemed by the court a bar, I must proceed in this case as if no distribution had taken place, leaving the accountants to proceed against the distributees to refund so much as may be required.”</p> <p>He then made a distribution, allowing Holgate’s claim as a lien in full, and awarding to the other creditors about fifty-five per cent, of their claims.</p> <p>The administrators filed the following exceptions to the supplemental report:—</p> <p>1. The reference back to the auditor of his original report was unwarranted in law.</p> <p>2. The supplemental report and redistribution of the estate is unwarranted in law.</p> <p>8. The auditor has awarded to Holgate the amount of his claim.</p> <p>The Orphans’ Court dismissed the exceptions and confirmed the second report.</p> <p>The administrators appealed to the Supreme Court and assigned errors as follows :—</p> <p>1. Referring the report of the auditor back to him to let in the claim of James Holgate, after said report had been confirmed absolutely and distribution had been made in accordance with its directions.</p> <p>2. Ordering a redistribution of the assets of the estate of Anna B. Cramp, deceased, after having previously decreed a distribution, which had been made in pursuance of said decree before redistribution was asked for.</p> <p>3. Decreeing that the accountants should pay the claim of James Holgate, after they had'distributed the assets in their hands, in obedience to an absolute decree of said court.</p>

355. This was an action on the case by George Dellaven against the Kensington National Bank. The bank had been originally incorporated by the Commonwealth of Pennsylvania, and afterwards, under the Act of Congress of June 3d 1864, and the Pennsjdvania enabling Act of August 22d 1864, became a national bank. The declaration contained three counts:— 1.

<p>1. On the distribution of proceeds of a sheriff’s sale a judgment can be attacked by other creditors collaterally only on the ground of collusion.</p> <p>2. Creditors may show any matter arising subsequently to the judgment which the defendant could show in a scire facias or action of debt.</p> <p>3. Beal estate of a defendant in a judgment was sold at sheriff’s sale; a feigned issue was framed in the distribution of the proceeds, creditors being plaintiffs and the judgment plaintiff defendant; he died before trial and his executors were substituted as defendants. Held that the defendant in the judgment was a competent witness for plaintiffs in the issue.</p> <p>4. The Act of April 15th 1869 is an enlarging statute; it rendered no person incompetent as a witness who was competent before its passage.</p> <p>5. The defendant in the execution having no interest in the question in the issue, the death of the plaintiff had no effect upon it.</p> <p>6. Clark v. Douglass, 12 P. F. Smith 408 ; Ferree v. Thompson, 2 P. F. Smith 353; Thompson’s Appeal, 7 P. F. Smith 175, followed.</p>

<p>Certificate from Nisi Prius : Of January Term 1874, No. 60.</p> <p>This was an action on the case, brought September 30th 1873, by the Burlington and Bristol Steam Ferry Company against the Delaware River Steamboat Company.</p> <p>The declaration contained two counts. The issue tried was on the second count. It set out that the plaintiffs were owners, under charters from the states of Pennsylvania and New Jersey, of a ferry from a wharf and slip in the city of Burlington, New Jersey, and adjoining a wharf belonging to that city, to a wharf or slip in the borough of Bristol, in Pennsylvania; and for the purposes of the ferry the. plaintiffs leased real estate at the slips in Burlington and Bristol, on which they erected wharves, piers, slips and the necessary appendages, and procured steamboats for the use of the ferry, and therefore had the right to free ingress and egress for their steamboats, agents, &c., into and from their wharves and slips, across the Delaware river from Bristol to Burlington and back; and averred that the defendants “wilfully and unlawfully intending to injure” the plaintiffs, &c., stopped up and obstructed tbe ferry, wharves, slips, &c., so that the plaintiffs could not enjoy them, &c.</p> <p>The defendants pleaded “Not guilty.”</p> <p>The case was tried March 20th 1874, before Mr. Justice Williams.</p> <p>The evidence of the plaintiffs was, that they were the owners of the ferry steamboat “Ellwood Doran,” running between Bristol and Burlington. The defendants owned the steamboat “John Warner,” which ran from Philadelphia to Bristol, and across to Burlington and back again to Philadelphia. The defendants lease the wharves at which they land in Bristol and Burlington from the same persons from whom the plaintiffs lease their slips, which are alongside of the wharves. The defendant’s pier at Bristol is from 40 to 60 feet, and at Burlington from 60 to 90 feet. The “Warner” is 226 feet long. When the “Warner” is lying at either wharf she extends beyond the slip, so that whilst she is there the plaintiffs’ steamboat cannot get into the slip, nor, if in, get out. This prevents the “ Doran” from making her regular trips, and her passengers miss the railroad trains with which they design to connect. The plaintiffs’ boat makes the round trip about every forty or sixty minutes. They could get out and in by being “careful and cautious;” the detentions would be for several minutes. Passengers who had missed making connections said they would go by the “Warner,” because the “ Doran” could not get out. The captain of the “Warner” had been spoken to on the subject and requested to remove from the way of the “Doran.” This detention occurred frequently. Plaintiffs suffered damage to the extent of $200 or $300 a year. ,</p> <p>The defendants gave evidence that they had been running to and from those piers from the year 1852, except five years. About fifteen years ago they began to give plaintiffs the fares they received for carrying passengers across the river. They do not stay at the wharves longer than is necessary. They would have to give up the landing to avoid the detention of the plaintiffs’ boat. If plaintiffs would run differently as to time, there would be no interference.</p> <p>The defendants request the court to charge:—</p> <p>1. That defendants are not liable for any injury arising to plaintiffs by reason of mooring to their own piers, unless there was a malicious exercise of the defendants’ right.</p> <p>2. If the plaintiffs could arrange their time so that the coming and going of the “Warner” would not conflict with the exercise of their right to come and go to their slips, it is an injury caused by their own neglect of duty for which defendants are not liable.</p> <p>3. If the running of plaintiffs’ boat was at such irregular intervals that defendants could make no provision to guard against their detention, then defendants are not liable.</p> <p>The court declined to charge as requested, and instructed the jury that the defendants had the same right to navigate the river Delaware in front of the plaintiffs’ slips that they had to navigate any other part of the river; but they had no right to moor their steamboat immediately in front of the plaintiffs’ slips so as to obstruct the plaintiffs’ use thereof, and prevent them from running their ferry boat into and out of the slips for the purpose of receiving and landing passengers'; that the defendants had the undoubted right to tie up and moor their steamboat in front of their own piers, but they had no right to overlap the plaintiffs’ slips with their steamboat and thereby prevent them from running their ferry, boat into and out of the same; and if they did, such obstruction was unlawful, and plaintiffs might recover therefor.</p> <p>The verdict was for the plaintiffs for $371.</p> <p>The defendants took a writ of error.</p> <p>They assigned for error the refusal of their points and the charge of the court.</p>

130, to July Term 1872. This was an action of ejectment, brought July 3d 1872 by J. Wagner'Jermon-and Sarah A. Jermon, his wife, in her right, against Edward Lyon, Thomas Lyon and George W. Taylor, for premises at the south-east corner of Broad and Oxford streets, Philadelphia, being forty-eight feet on Broad street, &c.; at the time of bringing this ejectment the premises had been .divided into three lots.

<p>Certificate from Nisi Prius : Of July Term 1870, No. 205.</p> <p>This was an action of assumpsit brought July 11th 1870, by Dundas T. Pratt, againt George Patterson. After the case was at issue the death of defendant was suggested, and Lydia Patterson and Frederick Patterson, his executors, were substituted.</p> <p>The action was for the recovery of commissions for the sale of real estate by the plaintiff for the decedent.</p> <p>The case was tried March 12th 1874, before Mr. Justice Williams at Nisi Pi'ius.</p> <p>A suit had been previously brought between the same parties for the same cause of action in the District Court of Philadelphia. On the trial of that suit both parties testified; a verdict was rendered on that trial which was set aside; the suit was then discontinued and this action instituted.</p> <p>On the trial of this action the plaintiff was offered as a witness. He was objected to by the defendants as incompetent, was rejected by t'he court and a bill of exceptions sealed.</p> <p>Plaintiff then offered in evidence the notes of his testimony taken on that trial; this offer was objected to by the defendants, rejected by the court and a bill of exceptions sealed.</p> <p>W. W. Harding testified, that wishing to purchase the property, he ascertained from plaintiff that he could effect a sale; plaintiff told him the price was $140,000 and that it was useless to try to get it for less; he offered the plaintiff $135,000 for it; he said if witness would give $140,000 he could get it; witness agreed to give that sum, the name of one his clerks to he used in the agreement, which was drawn for $140,000 and signed by the clerk. Witness did not wish to be known as the purchaser as he was desirous of purchasing an adjoining property ; he was able and prepared to carry out the contract for $140,000.</p> <p>Another witness testified that the plaintiff urged the decedent to take $135,000 ; that he refused and plaintiff then produced the agreement to sell for $140,000 ; decedent declined to sign the agreement, but said when the parties were ready to pay the money he would bring the deeds and papers ; decedent said that plaintiff was to receive $1400 commission. Henry C. Townsend, Esq., had been the counsel of the decedent, but witness did not know whether he had been consulted in this matter; decedent made no objection to the price $140,000, nor to the amount to be secured on the property; nothing was said about Harding being the purchaser.</p> <p>II. C. Townsend, Esq., testified that decedent had consulted him frequently about this property; he had prepared a paper containing brief terms of agreement for sale of the property; he had advised decedent to impose those terms on- all purchasers in any contract he might make. Witness had received a letter from Mr. Miller, counsel for the plaintiff, which he could not find, of which he thought a paper shown him was a copy; he had received also a letter to him from plaintiff, of which one shown him was a copy; he had searched for it but could not find it; he said also that a letter shown him was one written by himself to Mr. Miller; he could not recollect whether it had been shown to decedent. Mr. Miller’s letter was to him as counsel for decedent for whom he was then acting; witness told decedent the substance of his reply which decedent thought was right.</p> <p>The plaintiff offered in evidence the copy of his letter to Mr. ■Townsend; it was objected to by defendants because no notice had been given to produce the original, rejected by the court and a bill of exceptions sealed.</p> <p>The plaintiff offered to show by — Alexander that $500 were tendered to decedent, and what Patterson said about this transaction when he made the tender, and that Mr. Patterson treated the witness roughly and turned him away, saying that Mr. Pratt had lied to him.</p> <p>The defendants objected to the offer, it was rejected by the court •a bill of exceptions sealed.</p> <p>The “ brief of terms of agreement” and the agreement offered to decedent were' given in evidence; they contain nothing important to the case. There was- other oral evidence also.</p> <p>The court directed a nonsuit and afterwards refused a motion to to take it off.</p> <p>The plaintiff took a writ of error and assigned for error,</p> <p>1. Refusing to permit the plaintiff to testify.</p> <p>2. Excluding the notes of the testimony of the plaintiff in a former action between the same parties in the lifetime of the said George Patterson, which suit was about the same subject-matter, and in which said Patterson was also examined.</p> <p>3. Refusing in evidence a copy of a letter from plaintiff toH. C. Townsend, who said he had searched for the original and could not find it, for the reason that no notice to produce the original of said letter had been given to the defendants.</p> <p>4. Overruling the offer to show by Alexander that $500 were tendered to decedent, and what Patterson-said about the transaction when he made the tender, and that Patterson treated witness roughly, and turned away, saying that Pratt had lied to him.</p> <p>5. 6. Entering judgment of nonsuit against the plaintiff and refusing to take it off.</p>

<p>Certiorari to the Court of Quarter Sessions of Philadelphia: Of July Term 1874, No. 39.</p> <p>.The proceedings in this case were commenced June 5th 1871, by the petition of John Yewdall and Anne J. Yewdall, representing that they were owners of property on Pasehall street, &c., in the Twenty-fourth ward of Philadelphia, which street had been laid out on the plans of the city and, by virtue of Acts of Assembly and city ordinances had been ordered to be 'opened, and that by the opening private property of the petitioners would be taken ; the prayer was for the appointment of persons to view the premises and assess the damages sustained by the petitioners by reason of opening the street, &c.</p> <p>Six viewers were on the same day appointed and endorsed on the petition.</p> <p>On the 16th of March 1872 the viewers reported, assessing damages to certain of the property owners, amongst- whom were Mary A. Pearson and others, heirs of Robert Chapman, deceased, on the street to be opened. Exceptions were filed to the report; it was set aside.</p> <p>On the 80th of May 1872, on motion, six new viewers were appointed without presenting a new petition, and were endorsed on the old petition, and this petition endorsed as filed the same day. Five of the jurors reported that they met on the 12th of June 1872 and “were all duly sworn or affirmed to perform their duties in the premises according to lawthe sixth viewer was absent; an affidavit was made that he had been served with notice, but had afterwards been taken sick, and was sick at the time of the view. They further reported that they had viewed the premises, and held numerous meetings, heard evidence and arguments of counsel, and assessed damages to several of the property owners, amongst whom were the heirs of Robert Chapman — the damages awarded being less than those reported by the former viewers. They reported that the damages to others were compensated by the advantages derived from the opening of the street; that there had been no advantages accrued to property in the vicinity of the street which would justify requiring them to pay the damages, and that the damages should be paid by the city.</p> <p>Exceptions were filed to this report by the heirs of Chapman and others.</p> <p>On the 12th of November 1873 the exceptions were dismissed and the report confirmed.</p> <p>Mary A. Pearson and the other heirs of Chapman took out this certiorari, and assigned for error that the court below erred in dismissing the exceptions to the report of the viewers and confirming their report.</p> <p>The assignments of error presented the following points:—</p> <p>1. That the petition was not presented thirty days before the commencement of the succeeding term of the court, according to the 76th section of the Act of June 13th 1836.</p> <p>2, That but five viewers were qualified or acted.</p> <p>3. That the viewers were not sworn, as provided by the Act of Assembly.</p> <p>4. That the Act of Assembly authorizing the assessment of damages is unconstitutional as providing for a jury of six instead of twelve.</p> <p>5. That the jurors, having been appointed upon the petition of the Yewdalls, had no jurisdiction to assess damages for the appellants.</p>

115. This was a scire facias sur mortgage issued March 30th 1875, by Ellen E. Wright, assignee of Edward W. Smith, against George M. Vickers, administrator, &c., of Hardman Phillips Montgomery, with notice to James E. Montgomery and a large number of other persons, terre-tenants. Hardman P. Montgomery, the mortgagor, was a co-tenant with a number of other persons, of real estate in the city of Philadelphia.

28. On the 11th of September 1871, Samuel S. Shallcross and Lamira A. Shallcross his wife, entered into a joint bond for $7400, conditioned for the payment of $3700. The bond was secured by a mortgage of the same parties on the real estate of the wife. She •died May 8th 1873. The real estate was sold under the mortgage, November 8th 1873, for $3188.54.

49 of July Term 1874. The decedent died on the 11th of May 1866, having never been married.

<p>Error to the District Court of Philadelphia: Of July Term 1874, No. 108.</p> <p>This was an action of assumpsit, brought April 25th 1871 by Michael R. Burke against Anna Gr. Maxwell, YanCamp Bush and William E. Smith, administrators, &c., of Ebenezer Maxwell, dec’d.</p> <p>The declaration was on a contract of guaranty; that, in consideration that plaintiff would purchase from decedent 800 shares of stock of the Tarr and Scott Farm Oil Company at $5 per share; within six months from the time of said purchase the said stock would sell in the market for $7 per share; that the stock did not at any time within six months from the time of purchase, or at any time subsequent thereto, sell for the price so warranted, but became utterly worthless.</p> <p>The pleas were: Non-assumpsit, statute of limitations, payment with leave, &c., and set-off.</p> <p>Maxwell, the decedent, had been in partnership with W. P. Bangs, under the firm name of Bangs & Maxwell. The plaintiff had been a clerk in that firm; it was alleged that he had overdrawn his account to the amount of $1400; Bangs, who died after this suit was brought, and his administratrix, after his death, agreed that the claim of the firm for the overdrafts might be set off against plaintiff’s claim in this suit.</p> <p>The case was tried May 4th 1874, before Lynd, J.</p> <p>For the plaintiff, James L. McCartney testified : — •</p> <p>“ In the latter part of 1864 Burke called almost every day about the purchase of the Tarr and Scott farm oil stock. I called about the same time on Maxwell; * * * to ascertain whether Burke’s statement was correct; I was introduced to Maxwell by Burke. Maxwell .said the company wanted money very badly; that the farm cost more money than they expected, and that was their reason for selling. I again called on Maxwell in 1865. I asked him if he had sold Burke any of the stock. He said several hundred shares. I asked him what he had charged Burke. ■ He said $5 per share. He said that he. would give me the stock on the same terms; that he had given Burke a guaranty that if the stock did not bring from $7 to $10 in six months, he would refund the money. I then took 250 shares and paid $1250 to Maxwell; * * * Maxwell said Burke had bought 800 shares. * * * I saw Maxwell several times after that; he put me off from time to time. I saw him after the six months had expired. He then put me off. ' He promised to pay me in a few days, when he paid Mr. Burke. I again saw him a few days after. He said the company were to have a meeting, and after the meeting he would decide what he would do. I didn’t see Maxwell after that. These interviews were some time in September or October 1865. I also saw Mr. Burke ; he was as bad as Maxwell.”</p> <p>Being cross-examined he said: “ Burke first called my attention to the stock. Burke did not exhibit any paper authorizing him to sell the stock. I bought the stock the beginning of 1865. At both interviews only Burke, Maxwell, and myself were present. * * * Before I bought the stock Maxwell said he had given Burke a guaranty that in six months they would sell from $7 to $10. * * * Maxwell said he had sold Burke several hundred shares. I asked him how many, and he replied 800. Burke himself had none of the shares for sale. I saw Maxwell some seven or eight months after I paid my money. He made some reference to losses they had had by a flood which swept some barrels of oil away. * * * I sued the defendants on my stock to recover the $1250. The verdict was against me. In that case Burke was my only witness.”</p> <p>A number of witnesses were called, who testified that the signature to the following paper (called A) was Maxwell’s; several of them saying that his signature was not uniform:—</p> <p>“ James Word .... 500 shares.</p> <p>“M. R. Burke .... 500 “</p> <p>“ J. L. McCartney . . . 250 “</p> <p>* #</p> <p>“ M. R. Burke . ... 250 “</p> <p>* #</p> <p>Total ..... 8000 “</p> <p>“ I have authorized M. R. Burke to issue my guarantee for the value of the above shares to the parties named therein when organized, viz., $7 per share.</p> <p>E. Maxavell.</p> <p>Philadelphia, 12, 7, ’64.”</p> <p>This paper was given in evidence.</p> <p>Gr. O. Beach, the secretary of the Oil Company, testified : that on the 8th of March 1865, there had been issued to MaxAvell 10,000 shares of stock all paid by him; that on the 15th of March MaxAvell had transferred 2250 of these shares to Burke; that Avithin six months after the organization of the company the stock had not at any time been worth from $7 to $10 per share; the receipt in the book of company to McCartney was December 20th 1864. The books of the company showed the issue of a number of certificates to different persons, viz.: two for 500 shares; one of 200 shares; two of 100 shares ; one of 75 shares, and one of 25 shares ; also, receipts to Burke for 2250 shares. On the surrender of these receipts, certificates in their place were issued; the money was actually paid on all before the receipts went out; Burke’s shares were on certificates for 900, 600, 500 and 250 shares respectively, all dated January 10th 1865; the certificates for the 900 and 600 shares Avere returned, and one for 1400 shares issued; which was dated January 15th 1865, in the name of Burke, and transferred to Maxwell, July 2d 1865: this was given in evidence by the plaintiff.</p> <p>The plaintiff was offered to testify; he was rejected as incompetent and he then closed his case.</p> <p>The defendants gave in evidence receipt book, certificate book, receipts of M. R. Burke, and stub end of certificate book, &c.</p> <p>William E. Smith testified: “lam one of the administrators of E. Maxwell. He died 10th September 1870. In 1862 and 1863 I was in his employ. I used to see him frequently up to the time of his death. Prior to his death Burke was one of his clerks; was bookkeeper and salesman fop ten or twelve years. Maxwell was taken sick about the latter part of August. He was also absent from the store some two weeks before that. Bangs conducted the business in his absence. Burke and Bangs were appraisers to his estate. After letters had been taken out I looked at Burke’s account in the ledger, and saw he had appropriated money which did not belong to him. The account showed he was getting $1200 per annum. It had been balanced 1st July 1870, and showed an overdraft of $57. I called Bangs’s attention to it, and also Bush’s. He and I had went down together, and in the meantime Burke had made certain entries in lead pencil (C). I know Burke’s handwriting. The charges of cash are July 1st, $57; July 6th, $200; August, $510; September, $455; October, $236; November, $185; December, $357; which made at the rate of $1200 per annum an overdraft of $1400. I was in the habit of seeing Burke every day about this time. I never heard a word about a claim against the estate. My knowledge of the claim was from Burke.”</p> <p>Being cross-examined he testified : “ I never had any conversation with Maxwell about Burke’s salary. Burke never admitted to me that he had overdrawn his account. Burke was a confidential employee of Maxwell’s. He possessed the entire confidence of the firm, and was intrusted with blank checks. I don’t know that he concealed the amounts he drew. At any time any member of the firm could tell what he. drew. Burke left at the end of 1870. * * * It was not between the 10th and 20th December I first found out about the overdraft.”</p> <p>Charles S. Lockwood testified: “ I was a bookkeeper for Bangs and Maxwell until 20th August of that year; Burke was salesman then. His account in the ledger is in my handwriting; I was in the habit of handing him cash when he requested, and charging him with it in a round sum. While I was there Maxwell had been away from the store some two or three weeks. I had conversations with Burke, and he said he would square up his account. When Burke would ask for money I used to write the amount in a memorandum which was kept in the drawer, and when I charged it off I would deduct the amount. Part of this one list was an amount of $500 which Maxwell had instructed me to loan Burke. Burke spoke about selling a house which belonged to his wife to pay this off. This was in the spring of 1870. I charged Burke’s salary up at the rate of $600 for six months.”</p> <p>Being cross-examined, he testified: “ Mr. Bangs was there, and was in the habit of examining the books. The memorandums were mine. I knew how much he drew; I always paid it to him. Mr. Maxwell used to look at the books, and see the amounts.”</p> <p>Being re-examined, he testified : “ I took the amount I was to charge up to Burke from him. He said $600. * * * When Maxwell was sick, Bangs was in the east, and Burke had charge of the store. The books were posted monthly.”</p> <p>Aaron J. Smith testified: “I succeeded Lockwood as bookkeeper. I got my information as to how the books were kept from Mr. Burke. I paid money to him from time to time, and put the amount in a memorandum in the drawer. I had no conversation with Burke about his salary. All these entries were in Bangs’s lifetime. I was in the habit of balancing, cash every day. Any one could learn from me how much cash Burke had drawn at any time. I think I remember giving him a check when he left the employ, and something— a few dollars — out of the drawer. The check was signed by Bangs.”</p> <p>Van Camp Bush testified: “I am one of the administrators. Letters were granted in October 1870. I first learned of the amount drawn by Burke in the latter part of the year, towards the 1st of January. Í saw Bangs in regard to it'subsequently. I called Burke’s attention to it, and told him that the $1400 would have to be collected. Burke replied that if I insisted on the collection of that money he would have oil suits brought against the estate and make it sweat. He said Maxwell told him he might have an increase of salary for three years back — for the years 1868 and 1869 $1500, and for the year 1870 $2000. He claimed that $1400 was the amount which was due him. Up to this time he never made any statement as to his claim. I next remember receiving a note from John P. Owens, and I went to see him. Owens showed me two certificates of stock belonging to Burke, which were numbered 107 and 169. He spoke about oil suits, but didn’t give me the name of any other clients. The next step was McCartney’s suit, and after a month Burke’s suit. I first knew of the guaranty paper a short time’ before the McCartney suit. Mr. Morgan gave me an order on Fitzpatrick for the books, and I kept them by advice of counsel at his office.”</p> <p>Charles E. Morgan testified: “Iwas counsel for the administrators of Maxwell’s estate, and also of Bangs’s; I saw Burke once or twice at the time of the appraisement, and again in February 1871. I received no information as to any claim he had against the estate. I wrote Burke about the overdraft, and he came to my office; I told him that this claim had been put in my hands for collection. Mr. Burke replied that the money was his, and he would not pay it back, and unless I withdrew my claim by one o’clock that day, he would cause oil suits to be brought against the estate, and would make the estate suffer more than the amount of the claim.”</p> <p>Entry “ C,” referred to in the testimony of W. E. Smith, was as follows:—</p> <p>“ Commenced 1st mo. 1st ’68, at $1500 per year for ’68,-’69; |2000 for 1870.”</p> <p>They gave in evidence the record of the suit of McCartney against Maxwell’s administrators, commenced March 4th 1871; also the record of a suit by the administrators against Burke for the over-draft, commenced February 4th 1871.</p> <p>■ The plaintiff, in rebuttal, was offered as a witness and asked:—</p> <p>“ Was your claim on account of the sale of 800 shares of oil stock by Maxwell to yourself first put into the hands of your counsel, Mi-. O’Neill, before or after the decease of Mr. Maxwell ?” The defendants objected to the qustion ; it was rejected by the court and a bill of exceptions sealed.</p> <p>He was then asked the following question:—</p> <p>“Was your claim against Mr. Maxwell on account of the sale to you of 800 shares of oil stock upon the alleged guaranty put into the hands of your counsel, Mr. O’Neill, prior to your interview with Mr. Bush or Mr. Morgan?”</p> <p>He answered, “Yes. At the interview with Bush I told him I had a claim against the estate.”</p> <p>The plaintiff called John F. Goodwin, who testified: “I am a member of this bar. I have been in Mr. O’Neill’s office ■for fifteen years. I remember bringing the suit. Plaintiff had called about it a year before. He used to come very often. I don’t know why O’Neill did not bring suit before he did. He used to say, when he called, that he had made a claim against Maxwell, I think. There were other claimslikehis in Mr. O’Neill’s hands, which were settled. Burke used to ask whether he had a case; whether he could recover. He used to say that he had bought the stock at $5 per share, and that Maxwell had guarantied it would be worth $7 per share. He never showed me paper “ A” until last winter a year ago. He told me he had often looked for it and could not find it. He gave that as a reason he had not produced it before.”</p> <p>This testimony was admitted under objection by defendants and exception.</p> <p>All the testimony at all bearing on the decision in the case has been given above.</p> <p>The court, after referring to the grounds of claim and defence, charged:— * * * “ The plaintiff’s 'reply when charged with it was that the dead member of the firm had agreed he might draw as though his salary had been $300 greater for the two years before, and $800 greater during the then current year. And yet all the time while his employer lived, and notwithstanding frequent interviews with his legal representatives after his death, he does not appear to have breathed a word to any of them in regard to this claim of $4000 arising in the alleged guaranty.</p> <p>“ These circumstances make this case what I have designated it, a remarkable case. This ease is important as well as remarkable, inasmuch as the claim is against the estate of one who. is no longer here with us; of one whose lips cannot be opened to explain any part of the transaction; of one whose arm can no longer be raised to ward off the blow which has been aimed against his property. No one can die with any feeling of security that his accumulations can reach those who are dear to him, if claims, set up years after they have accrued, and only after his death, are sustained by courts and juries without the most rigid scrutiny, without convincing evidence.</p> <p>“ Yet there may be a case of a just claim where the creditor has laid by many years, and yet-never made'the claim known. Such case, notwithstanding an apparently unaccountable silence, must receive a patient hearing, and, if found to he just, verdict and judgment must follow, though the estate of the dead be swept away.</p> <p>1. [“The burden of proof in this case is on the plaintiff. It would be on the plaintiff in any event. It would be in any event if an ordinary case. It is much more upon him when the circumstances are so unusual.]</p> <p>“But what must the plaintiff satisfy you of, in order to recover? He must first satisfy you he bought this stock.</p> <p>2. [“ He must satisfy you he had $4000 to put into it.] Then he must satisfy you not only he bought it, but that it was bought accompanied by the guaranty. These three things proved, your, verdict must follow. If the evidence be such as to leave you in serious doubt as to any one of these things, your verdict must be for the defendant.</p> <p>“ A number of facts in this case may almost be taken as admitted without contest. The first is that Mr. Maxwell was certainly engaged in a project to form an oil company, and put off a large number of shares of stock on third parties at a profit. And while the evidence is not perfectly clear on the second point, probably you will not have much difficulty in reaching the conclusion that in doing this he was pursuing the usual mode then pursued. This mode involved efforts which were fair sometimes, and often were not fair. It involved statements of mere opinion, highly colored, that the enterprise could not fail to be a grand success, &c. Again, there is a third fact about which you can have very little doubt, and that is that Mr. Maxwell guarantied to Mr. McCartney and others that the stock should bring $7 per share within six months. There is still another that I think may be taken as admitted, that he not only guarantied to Mr. McCartney his stock, but he said Burke had bought 800 shares and that he had given him (Burke) such a guaranty as he then gave McCartney.</p> <p>“Another point seems pretty clear, and that is that this stock never had a market value. There is still another point, that Mr. Burke was intrusted’with receipts for this oil stock. The prima facies of these receipts was that he had bought that stock and bought it with his own money.</p> <p>3. [“ With all that I have now stated it by no means follows that the important element of the plaintiffs case has been made out; that in point.of fact he did buy of Mr. Maxwell 800 shares of the stock and paid him $4000.] Yet, if he did not do that in point .of fact, it matters little how much Maxwell may have stated it, and at the same time it does not justify your verdict.</p> <p>4. [“ McCartney testifies that Maxwell told him that Burke had paid him, and Burke held receipts which would indicate he had bought 800 shares, and a much greater number of shares, and got certificates for the stock. If these two elements stood alone, if the certificates were for 800 shares, I think you would have no difficulty in reaching a conclusion that plaintiffs contention is right. But unfortunately, as I view' the case, these elements of testimony don’t stand alone. They are accompanied by other facts and circumstances which modify and nullify them, and one of the most important facts is a negative one, that is to say, there is no proof before you, or attempt to prove, that Mr. Burke ever had $4000 to put into the stock.. In an ordinary case it would be obvious you could decide the case with much more satisfaction if it was shown that Mr. Burke had that money at any time. It is a very patent and pregnant circumstance that the case is presented to you without any circumstance to show where the money came from with which he purchased, if he did purchase, from Maxtvell this stock. The only fact we do have in this connection is against him. For, years after, when he demanded a larger salary, we find him to have been receiving before only $1200 a year. We find he bad a wife and family depending on him. A man who only had a wife depending on him might save, but with a family, in these times, it would be rather difficult. I may say, in this connection, in the absence of evidence to the contrary, you are at liberty to regard your own experience in making inferences from evidence. As to the matter of salary, you are at liberty to regard your own experience. If you believe that Burke did not get more than $1200 a year, you might find that he could not well save much. The absence of that evidence is negative testimony of a very damaging character to plaintiff’s case.]</p> <p>5. [“ Again, Mr. Burke’s relations to Mr. Maxwell were very confidential. Mr. Burke understood the whole enterprise very well; we may assume he did. We may assume that Burke knew that Mr. Maxwell was not engaged in the enterprise without making a handsome profit, even if Burke did not know the figures. We may ask ourselves, with this assumed knowledge, whether he would have paid a full price which was charged to others in the general market, whether if he did buy he would not have been put on better terms. And yet he claims that he bought not only 800 shares, but paid the full $5 per share.]</p> <p>[“ Again, we may naturally assume that he knew well these transactions of Mr. Maxwell, and was a helper with him. He assisted him to get off these shares. The men whose names you find on the paper were the friends and acquaintances of Mr. Burke. You may assume he made considerable efforts to induce them to subscribe to 2250 shares. We may naturally suspect he was paid in oil stock, and would have taken his chances whether this stock would be worth $7 per share. Under such circumstances he would not be entitled to any guaranty.]</p> <p>“Again we come to paper ‘A.’ -This was introduced into the case by plaintiff, not as evidence as to what the contract was with Mr. Maxwmll, but merely as corroborative of McCartney, namely, that Mr. Maxwell did give a guaranty to Burke of the shares he took in the enterprise. The paper imports trvo things : first, that Burke had bought a certain number of shares; and secondly, that Maxwell had guarantied to him also.</p> <p>6. [“ Burke admits, as to the guaranty part of it, this paper ig a sham.] He does not contend at all that that paper was the paper out of which the guaranty arose. The narr. declares he did not rely on this paper, for that alleges a different undertaking, and an undertaking as of a different date. This paper has no mention of the six mouths in it, but a guaranty that the stock would be worth $7 per share on the organization. The narr. is upon a guaranty that it would reach fS7 per share within,six months.</p> <p>7. [“ If paper ‘ A’ is without meaning as to the guaranty, is it any use as to the purchase, or proof of the fact that there was any purchase at all?] But did not the paper make it necessary that Maxwell, when applied to by McCartney and other people, should not falsify it by word of mouth ? Did not Burke and Maxwell understand just what the paper was for ? Did they not fully understand one another ? When Maxwell stated to McCartney that Burke had bought, was it hot the same sham that the paper itself was ? Is it fair, now, for Burke to set it up as a verity ?</p> <p>[“Again, I have spoken of the receipts. If the receipts were for just 800 shares it would be better for plaintiff. But, unfortunately, the receipts are for 2250 shares, and all transferred to him about the same date. You will ask did Burke buy all these shares ? McCartney says nothing about 2250 shares. Paper ‘A’ says nothing about them. Plaintiff’s counsel does not pretend that Burke paid for 2250 shares. You will ask yourselves if this amount was not bought and paid for, were the 800 shares bought and paid for ?]</p> <p>“Again, paper ‘A’ is for 750 shares, as you will see, and not for 800 shares.</p> <p>[“Again, the receipts which were given to Mr. Burke for payments on this stock are for 900 shares, 600 shares, 500 shares and 250 shares. But by no addition or combination of any of these numbers do/W'e reach 800 shares. Now, these are discrepancies which are unfortunate for plaintiff; discrepancies you are entitled to call for free explanation of at his hands.]</p> <p>“ As to the other of the two things which plaintiff must make out, there will be no difficulty if you decide the first in his favor, if you really believe that Burke did buy and pay $4000, namely, that Maxwell did guaranty him. The battle-ground then is, whether Burke did actually buy these 800. shares.</p> <p>“ So much now for one view of the plaintiff’s case. There are still other considerations which involve it in doubt and suspicion. The first is, Burke’s long silence in the lifetime of Maxwell. If he had so large a sum as $4000 at stake, it would be reasonable that he would call Maxwell’s attention to it from time to time— reasonable that some one, or more than one, who were so laboring with him in that establishment should have heard some reference to this matter between Burke and Maxwell, during a period of more than four years, and concerning so large a sum.</p> <p>[“ I do not know how it may appear to you, but it seems to me, under all the circumstances Burke was placed in then and now, that this was a very large sum to him — a sum as to which, if he thought he had any claim, he would not only have appealed to his employer frequently, but would have quarrelled with him outright long before four years had gone by.]</p> <p>“ Again, the loan of $500 from Maxwell, more than six months before his death, is a circumstance clearly irreconcilable with the theory that Maxwell was his debtor for so large a sum. It might be. Counsel for plaintiff has argued before you, with much force and with propriety, in view of the relations existing between them, it might have been very unpleasant to have urged this violently. He might have been reluctant to take the risk of a discharge.</p> <p>[“ All that is possible, but it is scarcely the usual course things would have taken. , At least in don’t seem so to me. If you look at it in the same light, and think it not usual for a person who had such a claim to ask for a loan of $500, and then afterwards speak of repaying it, and cutting it down even at the sacrifice of selling his wife’s real estate, it don’t seem to me to be usual. If you find it not usual, you will, of course, regard it with suspicion, as you may regard all circumstances which don’t accord with your ordinary experience in life.] A still graver circumstance has been the neglect of Burke to mention this subject to the administrators. Maxwell died 10th September 1870. He was under no sort of obligation to them. There were no relations of trust and confidence between them, nor was he dependent on them for his situation. His claim was against Mr. Maxwell individually; his employment was with Bangs & Maxwell. And besides all that, the evidence of Mr. Smith is that early in October he was going to leave his situation, and he did leave in December. October, November and December slipped away without his saying a word about the claim to them. That certainly you must regard. There can be very little doubt whether that was usual. And yet he does not appear to have spoken of this claim until it was finally apparent that the administrators were about to proceed against him for the overdraft of which you have heard. The argument made with a view to parry the force of the blow as to his silence during his life does not apply to these three or four months after Maxwell died.</p> <p>“We now come to what I have spoken of as the overdraft. Undoubtedly, whether he overdrew or not, he was charged with this some time in December. His explanation you will recollect that Mr. Maxwell agreed he should draw at the increased rate. [If true, how natural it would have been for him in view of the peculiar circumstances under which he made it, beginning only a little while before Maxwell’s decease — how natural it would have been for him to have said then and there, I also have a much larger claim than that, so far as Maxwell is concerned ; I have a claim of $5000 growing out of that oil company affair. I propose pressing it. I have not acted unreasonably. It would have been natural for him just at that time to have set up this claim, as well as the allegation that there was no overdraft.]</p> <p>“Was the explanation of this overdraft true? Did Maxwell ever promise Burke he should even have the alleged increase? On its face it does not seem very likely. [Assuming my theory of the case, it does not seem very probable that Burke, who upon the books of the firm seems to have been getting but $1200 a year, should have been suddenly promised by Maxwell that he should draw an increase of salary not only during the current year, but that he should g’o back and draw for 1868 and 1869 the increase. Such a thing may be, but it is not usual; such of you as keep books can well form your own conclusions as to this matter. You may know that while it might be not an unusual occurrence for merchants to say you may draw an additional sum, yet that to go back two years beyond the current year is not a very common occurrence. Upon its face there seems to be improbability as to that statement. It is very obvious too that these promises of Maxwell’s could not have been made before the 1st of July 1870, because of the ledger entries then, of which Burke had charge, and which we may be justified in saying he had control of.] On the 1st July, we find the overdraft so far as bookkeeping can show it of $57. It is scarcely probable that would have occurred if Maxwell prior to that time had made the promise. If he had made it, why did he not communicate to his partner? It is not customary for one member of a firm to give away the property of the firm without consulting his fellow member in advance. We have no evidence at all that Bangs ever knew of this. On the contrary, we think the evidence would justify the contrary inference that he did not know.</p> <p>“ [Why did not Burke communicate it to Mr. Bangs ? He must have known enough about mercantile business to know that this agreement by one partner was a nullity unless he communicated it. Why did he not communicate it himself to Mr. Bangs ? It is for you to find the answer to this.] He did not communicate it to either of the bookkeepers. He was obviously drawing what appeared, on the account, to be an overdraft. Mr. Lockwood and Mr. Smith must have been conscious of that. If Maxwell had authorized this increase of salary, he would have given some explanation to these young men. You have the testimony he never said anything about it. There is a lead-pencil memorandum in this ledger. We have the testimony of Mr. Smith that the memorandum was not there when he examined the books the first time, sometime in November or December. Why that memorandum, if Burke did not communicate the fact, and never before thought it necessary to make lead-pencil memorandum? Why make it then, if he did not make it in Mr. Maxwell’s lifetime ? [The fact as to whether the salary -was increased or not, is not important as to the real merits of this case.] For if Maxwell did promise, as he is alleged to have done, so far as it js retrospective it did not bind even himself, because of the entire want of consideration. Upon a promise for increased compensation, after services were performed, Burke could not have recovered even against Maxwell. [The promise was not binding on Bangs, because one member of the firm has no right to give away money of the firm, as this would have been. However you may find this fact, it don’t help plaintiff as to the general merits. If false, however, it goes very-far to put an end to plaintiff’s case.]</p> <p>“ It is proper to call your attention here to the fact that I have not instructed you as to any matter of law. In all I have said, substantially there is no law, and I am simply giving you my impressions of this case. You are not bound at all by anything I have said. It may be, for want of explanation, I have entirely mistaken the whole subject-matter ; that what I have regarded as points being against plaintiff are without force. If, on consultation with each other, you reach such conclusion, you may disregard all I have said; all this is for you exclusively. Instructions as to mere matter of fact — as to what the evidence has been, as to the weight of it or inferences it will bear, are all for your consideration. You are the judges of the whole matter.”</p> <p>8. [“You may have noticed that very rarely in the cases brought before you have I instructed you as to facts; I have instructed you as to the law, hut left the facts to you. This case, however, is a remarkable one and an important one, and I have deemed it important to present views which, were I in the jury-box, would control me in giving my verdict, against the plaintiff.] You are not bound by it; if it don’t accord with your own reflections, you may disregard it. I have not been disposed to take the view that this paper was otherwise than genuine. My view is, the paper was written for a purpose, to put off oil stock on parties named in it and other parties to whom it was shown, and that Maxwell and Burke thoroughly understood it. I have no idea that there is any such degree of wickedness in the plaintiff before you as the crime of forgery would involve.</p> <p>9. [“ I think his sole fault consists in using this paper for a purpose for which it was never made. He is using it to give corroboration to another branch of his case. There are a great many degrees of wickedness in the world. I don’t think that Burke’s wickedness amounts to a capacity for a direct crime, while if my impressions are correct his fault is very considerable.] But whatever my views may be as to the paper, whether it be a forgery or not, the question is for you. The counsel for'defendants has chosen to argue upon it, and probably you will deem it proper to give it some consideration. As far as the law is concerned, you may reach your conclusions by comparing the signatures which will go out with you, which are genuine, with this particular signature. I looked at the signature at an early stage of this case, and compared it with signatures produced by defendants. And since the case.has closed I have examined the signature produced by plaintiff. I must say as mere matter of curiosity, there is one thing very remarkable about that signature. You will find the “ e” in all the genuine signatures in whatever shape he may make it — you will find the “e” always fairly developed, but here the “e” seems entirely omitted. But still that is mere matter of curiosity in this case. I cannot believe myself that that paper is a forgery. ' Should you conclude that plaintiff’s claim for $4000 is a good one, you will have probably to deduct the $1400 and interest upon it — your verdict will be for plaintiff for that much less.</p> <p>10. [“ But should you find against plaintiff as to the oil stock guaranty, you will have still to consider the question of set-off, and if you find there was an overdraft of $1400, you will have to find not merely a verdict for defendants, but will find due them so much as the overdraft amounts to.]</p> <p>“ Whether there was an overdraft in fact I do not propose to argue, though I have a very decided opinion as to it. -The case is in your hands.”</p> <p>The verdict was for the defendant with certificate of indebted-, ness from the plaintiff of $1702.40.</p> <p>The plaintiff took a writ of error; he assigned for error,</p> <p>I. The portions of the charge in brackets.</p> <p>2-10. The parts of the charge in brackets, numbered respectively from 1 to 9.</p> <p>3. The part of the charge in brackets numbered 10.</p>

<p>Error to the District Court of Philadelphia: Of July Term 1874, No. 112.</p> <p>This was an action of debt, brought May 3d 1873, by James P. Kane against the Reserve Mutual Life Insurance Company, on a policy of insurance for $2000, issued April 1st 1872, by the defendants to the plaintiff, on the life of his father, John Kane.</p> <p>The case was tried April 15th 1874, before Briggs, J.</p> <p>The plaintiff gave evidence of the death of John Kane on the 26th of June 1872. The father had come from Ireland ; had lived in this country two or three years ; plaintiff paid $120 for bringing his father and family to this country ; $50 had been repaid him by the mother; the father intended to repay him, but had not; the father was a laborer; kept house from April to June 1872; was 55 years old when he died; left a widow, three sons and a daughter; the plaintiff paid through affection, but expected the father would have paid it had he lived; the money paid by him brought over the father, mother, brother's and sister-; he expected the father would compel the brothers to pay their passage-money back.</p> <p>The defendants’ points were,</p> <p>1. If the jury find from the evidence that the plaintiff was, at the execution of the policy of life insurance, an adult son of John Kane, then as such he had no insurable interest in the father’s life, and the verdict should be for the defendants.</p> <p>2. If the jury find from the evidence that the plaintiff represented, at the time of his application, that he had an insurable interest in the life of John Kane, it is now incumbent upon him to satisfy the jury that he had such an interest, and if he has failed so to do, the verdict should be for the defendants.</p> <p>3. Plantiff, as a creditor, can only recover in this case the amount of his outlay on behalf of his father.</p> <p>The court refused the points, and directed the jury to render a verdict in favor of the plaintiff for the amount of said policy, $2000, less six months’ premium unpaid, and for the interest, amounting to $2085.34. The jury so found.</p> <p>The defendants took a writ of error, and assigned the refusal of their points and the instruction of the court, for error.</p>

<p>• Error to the District Court of Philadelphia: Of July Term 1874, No. 124.</p> <p>This was an action of assumpsit brought November 6th 1872, by Eli K. Price against The Wyoming Coal and Transportation. Company.</p> <p>On the 8th of August 1848 James Hancock conveyed to the plaintiff two pieces of land in Wilkesbarre township, Luzerne county, one of them “ beginning at a corner in the line of lot No. 36, &c., on the northwest side of the Pennsylvania canal, thence from the towing-path of said canal on the line of said lot No. 36, north, &e., 160 perches to the Susquehanna river, thence by the Susquehanna river south, &c., parallel with the first-mentioned line 160 perches to the towing-path of said canal, thence by the said canal, &c., to the beginning, containing 20 acres, &c., being part of lot numbered 37,” &c. The other lot was “ on the southeast side of said canal, opposite the above-described land, &c., beginning in the line of said lot No. 36, thence from said canal south, &c., by line of said lot No. 36, &c., 20 perches, &c., thence parallel with the first-mentioned line 8 perches to the said canal and thence by said canal 20 perches to the beginning, containing one acre, being also part of said lot No. 37,” &c. William Longstreth also had an interest in this land. The defendants, during the years 1869, 1870 and 1871, were lessees of the Burroughs colliery adjoining the above-mentioned tract on the 'northeast; about the latter part of the year 1869 they mined over the line of that colliery into the plaintiff’s land.</p> <p>The canal mentioned in the deed had been constructed by the Commonwealth and was what had been known as the North Branch Canal. Under Act of April 21st 1858, Pamph. L. 414, this canal, with other parts of the public works, was sold to the Sunbury and Erie Railroad Company, “with all the property thereto belonging or in anywise appertaining, and all the estate, right, title and interest of the Commonwealth therein.” The act provided that the company and their successors and assigns should keep up the canal with the bridges and private crossings as the canal commissioners had theretoforé done, and that it should remain a public highway for ever; that they should take subject to all contracts and arrangements made by Act of Assembly or ■otherwise, &c., as the Commonwealth was required to do by law; and that all claims for damages or other demands against the Commonwealth in relation to the location and construction, &c., of the canal should be paid by the purchasers.</p> <p>On the 28th of March 1870, J. S. Price, Esq., the son and agent of the plaintiff, wrote to the president of the defendants, advising him that he had been informed that the defendants had been taking coal from plaintiff’s land and were “also approaching with your works the river Susquehanna, the coal under which also belongs to Mr. Price and Mr. Longstreth.” The agent asked for an interview with the president that the claim of plaintiff might be amicably adjusted.</p> <p>On the 8th of April 1870 the president replied that they had unintentionally crossed “the line and mined a small amount of coal off of your property. As soon as we found by survey that we were on your property we ceased mining, had a careful estimate made by competent engineers, and returned to you the amount so mined (usually in such cases the owners of property are -left to ascertain such facts, and in many cases we have known parties let down the roof so that the owner could not get in his property under ground), and gave you the same price that we are paying for our own property with improvements on. In all candor wre would say, that 25c. a ton for undeveloped property in this region is a price paid at but few most favorably located places, nor could you get a jury in Luzerne county that would allow that amount of rent under the circumstances. As for damages to your property, except the mining out of this coal in an upper vein, I think you would have difficulty in showing to a jury that you had sustained any. The above is of course only my opinion. You must therefore not think it unfair in us to prefer letting the law take its course, after reading your letter to your agent, Mr. Brown, in which you said that unless we paid 60c. a ton, you would bring suit for amount of mine rent and damages done.</p> <p>“We would here say, if perfectly satisfactory to you, we will allow you 35c. a ton for what we mined, in place of 25c., as offered before. We make the outside offer, in order to effect an amicable settlement.” * * *</p> <p>The agent replied, May 6th 1870, that Mr. Longstreth, the plaintiff concurring, directed him to say :—</p> <p>“ I consent to letting J. H. Swoyer have the coal that he has mined from our land at 35c. per ton, and also such as he may take therefrom for the balance of the year, but I think that a provision should be made for his mining for the eight months to January 1871, not less than 3000 tons per month, at 35c. per ton, &c. * * * The agreement only to continue until the 1st of January next, the returns of the engineer .of the coal taken .to be made monthly on the first day of each month, and the payments to be made to me at Philadelphia each month. The coal to be taken out regularly as you proceed, and, if it is desired by the owners they can examine the workings by themselves, or their agents, or engineers, to see that the mining is done to their satisfaction. Please let me know if these terms are agreed to by you, and also send me check or draft on New York or Philadelphia for the amount already mined by you, as per your report of October 22d 1869, showing that up to said date 3829 tons had been mined by you. 3829 tons at 35c. per ton amount to f1340.15.”</p> <p>The president replied May 11th 1870:—</p> <p>“ Your favor of the 16th inst. duly received. Contents noted. I have instructed our Treas. to forward you check to morrow for ac. I am sorry to say that we cannot accept your proposition to mine coal from your property; it is no benefit for us to mine it if we have to pay more than what we are paying to Burroughs, namely, 25c. a ton, besides we cannot agree to mine out any given amt. per month, but would mine of it as much as we could conveniently at 25c. a ton.”</p> <p>The agent replied May 14th 1870:—</p> <p>“I have your fav. of 11th inst., and have sent it to Mr. Longstreth. * * * After one or two letters had passed between us you called at my office two or three times, and after a friendly talk in reference to your having trespassed upon our property and taken out coal without authority, you * * * said that you regretted what had been done, and hoped that there should be no litigation. * * * It was then proposed by you, that in consideration of settling the claim of damages on our part that you would not only give us 35c. per ton for the coal already taken, but the like sum for what you would take between this and the 1st of January next, the time of the expiration of your lease with Mr. Burroughs, * * * that as you had trespassed upon our land you felt morally bound to pay us more than you were paying Mr. Burroughs, and that you preferred, under the circumstances of Mr. Burroughs’s treatment of you, in reference to a renewal of your lease, to take our coal at 35c. Acting upon that suggestion, I communicated your offer to Mr. Longstreth and my father, * * * they promptly agreed to it, and in consideration of our releasing the claim for damages, they yielded to your wishes, and agreed to take 35e. for that already mined and that to be mined. On May 6th 1870, I wrote to you to that effect. In reply I have your favor of May 11th, in which you wish to hold us to our part of the agreement and you refuse your part of it. That is, you say, that we are to release our claim for damages at 35c. for coal taken (when our courts would have given us much more), and you are not to pay 35c. for the amount to be taken, although that was clearly parí of the agreement. * * * I reported to them your offer, and that I was pleased at the manner in which you acted, and hoped that we would have all the matters settled amicably between us, and so much confidence had I in you that I suggested that it was not even necessary to go through the formalities of a written agreement, but that your word, offering the 35c., was sufficient without the matter being reduced to writing. Am Í therefore to tell them that I was wrong?” * * *</p> <p>"The president replied May 17th 1870:—</p> <p>“Your favor of 16th inst. this moment rec’d. Contents noted. In answer to the business part of your letter, I would say that you certainly misunderstood me. I at least never intended to say that we would pay you more for an unimproved property than we are paying Mr. Burroughs, where he furnishes'all improvements. * * * I did not intend that the settlement of the old claim should have anything to do with the new transaction. I am perfectly willing, if it is your wish, that you should commence proceedings against us through the proper tribunal for the recovery of mine rent, as also for damages done you, provided you place .the money we have paid you in escrow, or you acknowledge that you hold it in escrow pending the decision of the case, but I would not consider it as part payment ; ere the suit is commenced all former settlement to be considered as naught. On my part such suit would be considered as amicable, and to save all trouble in getting service on me here I will designate at your request an atty. in Phila., who will accept service for us, provided you in return will agree to have the case disposed of as soon as possible. Or again, I will leave the case to three disinterested persons, you to name one, we to name one, and they to choose the third, and whatever they will decide I will abide by, provided you will ágree to do the same.</p> <p>“ Now then, to the friendly part of your letter I would say that, inasmuch as you misunderstood me, and the 10c. a ton difference between us not making any large difference, I will agree to pay you 35c. a ton mine rent for all such coal as we may mine from your property between this and the first day of January next, but will not agree to mine out any given amount, the coal to (be) mined in workmanlike manner, &c. Your agent to have access to the mine acs. for the purpose of satisfying yourselves of how much has been mined; also to have free access to.the mine to see that the coal is mined without damage to the property other than the-mining of the coal. I make the latter proposition simply because you understood me to say so from the first, and because you reported so to your father and Mr. Longátreth.”</p> <p>The agent replied May 20th 1870:—</p> <p>“ * * * As you in the latter part of your letter agree to the 35c. pr. ton for all the coal to be mined between this and the first of January next, it will not be necessary, I am happy to say, either to bring suit or refer to an arbitration. I have therefore paid to Messrs. Longstreth and Price the money sent to me for- the coal mined to October 1869, and we will accept the 35 cts. for all coal mined up to January 1st 1871, in accordance with the terms of your said letter of May 17th'1870.” * * *</p> <p>The returns furnished by the defendants to the plaintiff were as follows:—</p> <p>Wilkesbarre, Pa., Oct. 22d 1869.</p> <p>Mr. Eli K. Price: in account with Wyoming Coal and Transportation Co.</p> <p>Statement of coal mined from the tract of land owned by Eli K. Price in Plains township, Luzerne county, Penna., in full to date. By 3829 tons of coal.</p> <p>Wilkesbarre, Pa., July 12th 1870.</p> <p>^ H* * * * *</p> <p>For mine rent on coal taken * * * in June 1870.</p> <p>By 460 tons of coal at 35 cents .... $161.00</p> <p>Wilkesbarre, Pa., Oct. 10th 1870.</p> <p>Hi ^ * H< ^ Hi</p> <p>1870, Sept. 30. For mine rent on coai taken * * * in July, Aug., and Sept.</p> <p>By 510 tons of coal at 35 cents . . $178 50</p> <p>Wilkesbarre, Pa., Jan. 19th 1871.</p> <p>* * * * * * *</p> <p>18.70, Dec. 31. For mine rent on coal taken * * * in Oct. Nov. and Dec.</p> <p>By 1618 tons of coal at 35 cents . . . $566 30</p> <p>All these returns were accompanied by payments of their respective amounts, which were receipted for by the plaintiff.</p> <p>The mine was surrendered by the defendants in January 1871. Plaintiff went into possession by his lessees, who worked it until July 4th 1871 ;■ the canal at that time came through, flooding both mines so that no survey of the working of the mines could be made.</p> <p>The agent wrote again to the president of defendants as follows :—</p> <p>“Philadelphia, Dec. 23d 1871.</p> <p>Mr. J. H. Swoyer, Prest. Wyoming Coal & Trans. Co., Wilkes-barre, Pa. . ^</p> <p>Dear Sir: We have received from Mr. R. P. Rothwell,mining engineer 'of Wilkesbarre, a plan of the workings and calculations of the coal taken by you from the property of Mr. Eli K. Price. The amt. fixed by Mr. Rothwell is, say . . 22,217 tons.</p> <p>The amounts returned to us, and for which you paid us 35e. pr. ton, were as follows:—</p> <p>.May 12th 1870. Mined to Oct. 22d 1869, ■ 3829</p> <p>July 12th. Mined in June 1870, ' . 460</p> <p>Oct. 10th. July, Aug. and Sept. 1870, 510</p> <p>Jan. 19th 1871. Oct., Nov. and Dec. 1870, 1618</p> <p>-r 6417 •</p> <p>Amt. not paid for, 15,800 less.</p> <p>tons at 35c. amounts . ' . . . . $7775.95 22,217</p> <p>“ received by us as above at 35c. pr. ton, . 2245.95 6417</p> <p>$5530.00</p> <p>Please let us have check for the above, and oblige.”</p> <p>For the above balance the suit was brought, the most important question being whether the plaintiff was entitled to recover for the coal mined under the canal.</p> <p>The foregoing facts appeared on the trial, February 2d 1874, before Briggs, J.; the deed from Hancock to the plaintiff having been received under objection by the defendants and exception—</p> <p>For the plaintiff, J. S. Price testified further: that the receipts for the money were not receipts in full, because he had always expected a formal survey would be made as soon as defendants got through. After the end of the year 1870, the plaintiff directed Mr. Rothwell, a mining engineer, to make a survey of the land. The defendants cut across the line of the Burroughs survey through a part of the canal. The break through the canal was about six months after the defendants gave up possession.. In April 1871 a lease was made to Burroughs of plaintiff’s tracts; he- took possession. Before anything else, the first direction then was to measure.</p> <p>Rothwell, the civil engineer, testified : that he made surveys of the property at different times from 1866 to 1871: he made surveys for defendants and for Burroughs: he made surveys in the Burroughs colliery as it approached the Price tract to ascertain whether they went into the Price tract, from January 12th on several days up to May 27th 1871; the surveys were made without distinction as to the two tracts; they ran through the colliery; on the Price land just as on the Burroughs tract; in passing through the chambers they could not tell on which they were.</p> <p>■ Ogden Haight testified : that a map shown was a map made by him of the survey of the colliery as assistant of Rothwell, in 1871, memoranda in a book shown him were of surveys actually made ; he said the surveys of the Price tract were in connection with the Burroughs colliery; they were commenced January 12th and ended February • 6th 1871; he 'ascertained from the line of the tracts on the surface where the line was under ground ; from the starting point he measured from point to point through the gangway, and took at intervals sights of the different chambers, measuring’ their widths by taking offsets at different times, to the sides of the chambers and so in the gangways, and went through all the workings in that way: he measured the height of the chambers and also took a number of sections of the coal seam and the seams of slate which occurred; the height taken by him was the average height. Witness stated in much detail his process of measurement, the average height, the thickness of coal, size of pillars, &c., that from his measurements he made a calculation which showed that the quantity of coal taken out of the plaintiff’s tract was 22,216.8 tons; he ascertained this by dividing the area worked into triangles, multiplying their area by the thickness of the coal which gave the cubical contents and estimating a cubic yard to weigh a ton ; having taken off the “pillarage and waste,” which he estimated at one-third, before he made the calculation; one-third was the usual deduction allowed in mining.</p> <p>On cross-examination witness said that he supposed the survey had been made for Burroughs; his instructions were to make a-survey of the mine so as to be able to make an accurate plot of the workings and measure the size of some of the pillars and to note' the faults; 6417 tons (the amount for which defendants made returns), would not include all the coal taken out of the Price tract; his measurements were almost exclusively taken by a stepping and chaining.</p> <p>Rothwell testified that the survey and measurements of the opening in the Price property, were made under instructions from Burroughs to ascertain the extent of the workings and condition of the mine, whether it was safe and how much was taken out; the instructions included both collieries ; this was just after the defendants had given up their lease and Burroughs was in possession; just after January 1871. Witness verified Haight’s calculations and calculated from maps made under his own direction; from the calculations covering ground worked up to January, not including some old workings, witness ma.de the total result 19,287.9 tons; he did not include some workings made after this; both the old and late workings were included in Haight’s survey; they amounted together to 2928.9 tons, which would make the total the siune as Haight’s; from what he saw 6417 tons would not be a fair return of the coal which he saw worked out of the Price tract; 19,287.9 tons he considered a fair return ; there was not sufficient pillarage left for safety. There was other evidence of the same general character as to the accuracy and purpose of the measurements, the quantity of coal taken, the damage done by defendants in mining, &c.</p> <p>For the defendants, John M. Crane, their secretary and treasurer, testified that they first received notice from the plaintiff of the demand for the balance of coal alleged to be unpaid for, in the latter part of December 1871; it was the duty of witness to return to plaintiff the amount of coal mined on his tract; the last return was made in January 1871 for the preceding three months; a check for the amount, $566.28, was sent at the time; no objection was made to the return; the defendants went out of possession January 1st 1871; no objection was made to any return before the canal was flooded; the mine was at all times open to the plaintiff; the first return was made by defendants’ engineer; the balance of the coal was mined from day to day and returned to the office and regularly entered in the hooks; the amount of coal was taken when it came out of the breaker for shipments for the trade; these were made regularly for 1870 and never objected to. The manner of doing business is, — the returns are first made to the office by the miner, the gross shipments of coal taken at the end of the month, into this the number of mine cars mined within that month is divided, which is divided into the total shipments; the average weight per car is thereby ascertained and the total weight of the coal arrived at; the miners are paid so much per ton by weight, before it has gone through the breaker. The defendants were taking coal from the Burroughs property all the time they were taking coal from the Price property; there was a mine boss employed by defendants to take an account of the coal as it was mined. To distinguish between the coal mined from the Burroughs and Price properties, the chambers or breasts were numbered, and as each car came, the number of the breast it came from was attached to it and credit given to that car, which went to the account of the man working it; in that way it was ascertained exactly what portion of the mine it came from, and as it came to the breaker account was taken of the coal coming from particular chambers; witness had no books showing the returns of the cars; they might have been at the office in Wilkesbarre, or probably not in existence, as they were something that it was not thought worth while to preserve ; they were generally kept for some time; no separate account was kept in the defendant’s regular hooks of the coal taken from the mines respectively; that was kept in the monthly books, the auxiliary books at the time.</p> <p>The defendants gave much evidence for the purpose of showing that the mode of surveying testified to by plaintiff’s witnesses was not reliable; that the amount of coal mined could not thus be accurately ascertained, &c.; and generally in answer to plaintiff’s case. There were also maps, letters, drafts, &c., given in evidence.</p> <p>The various Acts of Assembly in relation to the construction of the public improvements by means of canals, &p., are referred to in the opinion of the Supreme Court in this case.</p> <p>One of them, the Act of February 26th 1826 (Pamph. L. 55), authorized the location and contracting for of a canal, called the Pennsylvania Canal, from the river Swatara, near Middletown, westward, to connect the improvements with Pittsburg, &c.; it provided that the canal commissioners might agree with th'e owners of lands through which the canal was to pass, “for the purchase, use and occupation thereof,” on behalf of the Commonwealth ; or, if such agreement could not be made, it directed a mode for the valuation by inquisition, &c.-, and upon the confirmation of the inquisition and payment of the valuation the state should “ be seised of such lands as of an absolute estate in perpetuity, or with such less quantity and duration of interest or estate in the same, or subject to such partial or temporary appropriation, use or occupation” as should be required and described in the inquisition, * * * “as if conveyed by the owners.”</p> <p>Another was an act entitled “ An Act to'provide for the further extension of the Pennsylvania Canal,” passed April 9th 1827 (Pamph. L. 192). By this the canal commissioners were authorized — amongst other improvements — to provide for the construction of the North Branch Canal; the act provided also for the assessment and payment of damages for constructing the canal through any person’s land, &c.; for the purchase of property injured by the canal, and to agree with the owner of land through which the canal might pass “for the purchase, use and occupation thereof on behalf of the state.”</p> <p>The plaintiff’s fourth point which was affirmed was:—</p> <p>“ The location and construction of the canal through the plaintiff’s land will not prevent his recovering in this action for the coal mined and removed by the defendants from his land lying under the canal bed.”</p> <p>The following are points of defendants; they were all refused:—</p> <p>8. The title to the coal lying beneath the canal bed is not-vested in the plaintiff by the deed from James Hancock to plaintiff, of August 8th 1848.</p> <p>4. If the jury believe that it was not the intention of the parties to the deed of Hancock to plaintiff to convey the coal under the canal bed, then no title to that part of the coal passed ■ to the plaintiff, and he cannot recover for the same.</p> <p>6. It was the duty of the plaintiff to have notified the defendants, within a reasonable time after their surrender of the mine to them, the plaintiffs, of any claim for coal alleged to be mined and unpaid for.</p> <p>The court charged : * * • *</p> <p>“ By way of suggestion, merely, not to control you, because you may adopt any mode you please, that is within the limits of the testimony, by which to make a calculation, it may not be improper for me to say: First. Ascertain from the evidence, as nearly as you can, the number of tons taken from Mr. Price’s mine by these defendants, from the time they crossed the line of his property, until they ceased mining, that will give you the aggregate; then take from that aggregate the amount of coal that these defendants returned to Mr. J. Sergeant Price, who is acting for his father, and the balance, if there be a balance, will show the amount for which Mr. Price, the plaintiff, is entitled to a verdict. If, when you compare the aggregate taken from the mines with the aggregate for which the returns have been made, the one equals the other — that is, if the return would equal the other, Mr. Price would be entitled to nothing.</p> <p>1. That is fairly to restate the account between them, just as if they had sent no statement at all.] I merely suggest that as a mode; you may adopt any mode you see fit. The burthen of proving that more coal was received by the defendants from plaintiff's land than they have accounted for, is cast upon the plaintiff, Mr. Price. * * *</p> <p>“ The receipts given by Mr. J. Sergeant Price, the son and agent of his father, if given in full, and were meant to be in full, of all transactions had between the parties, with a knowledge that a fair and full statement had been rendered of everything, would raise a presumption which Mr. Price would have to overcome. But a receipt is only one link in the chain of testimony, and although it may allege upon its face that it is in full, yet it may be proven to be otherwise — just exactly as a witness may be disproved, who alleges that he has paid his money in full. Whether it is in full or not in full, is to be ascertained by a comprehensive view of all the testimony in the case that has been received, and if you shall ascertain, after giving the testimony this examination, that it is not in full, then the presumption is overcome, and the receipt is entitled to no such benefit of the presumption that I have referred to.</p> <p>“ Then, again, another view is to be submitted to you with regard to that. I have not seen the statements; I have heard them read; * w * but I have received the impression that certain detailed statements were given, constituting what is termed these returns. If the receipt was given for these returns, then you may consider whether, if they are in full, and I do not remember now whether they are — whether they do not have reference to the returns, and not to the entire demands of the plaintiff. * * * That is, if when the detailed statement came, the receipt was given for the statement, then it might be in full or not in full of the claim. If the statement was ascertained to be erroneous, then the receipt being in conformity to the statement, it' does not operate against the party giving the receipt at all. Now let us pass on to the evidence that we have got in this case, with reference to the amount of coal mined from this mine. We have got to contend with a difficulty right at the very outset, that neither of these parties could control. It seems they worked, or somebody worked so nearly to the bottom of the canal, or carried the roof of the mine so nearly to the bottom of the canal, that the pressure, or leakage, or moisture, finally percolated through, broke a hole and flooded the mine, whereby it now is a physical impossibility for engineering experts to enter the mine, and to make a calculation with reference to the number of tons taken from the excavations. Not being able to get this, then that which is the next best manner of ascertaining the quantity should be resorted to. Now I would think the next best, and probably the best of all, would be if we could get an account of the quantity of coal for which this company paid miners mining the coal. Í say that for this reason, though these miners may not be able to make a mathematical calculation, that inspiring incentive of self-interest impels every one to make a calculation that will not permit his employer to take advantage of him, and what quantity they have been paid .for would be evidence of a very high character. It seems so to me, at least, and I submit it with these-observations for your consideration, and in doing so, I do not invade your province, which is the absolute disposal of all questions of fact, but it is within my province, and, indeed, it is my duty to call your attention to these, considerations, although they may be somewhat critical. Then that character of testimony not being before us, we come down to the surveys.</p> <p>“ It is alleged that this survey was not made for this purpose. Admitting that to be so, and it is a circumstance in the case to be considered, yet if you are of the opinion that it is accurate, then it is just as good as any testimony that could be received. They could produce nothing more, viz., accuracy; that is perfection. It don’t matter by which manner of means or mode accuracy is obtained, if obtained by any. It is useless to say other means would have produced the same result, because you have got all that any of the means would produce, viz., accuracy itself. Therefore I say that if the map satisfies you of the quantity of coal, or enables you to reach, or furnishes you data by means of which you may reach, the quantity of codl, then that is evidence for your consideration, and whether it does furnish such data you must determine, in view of all the circumstances in the case, as developed by all the testimony in the case ; but it is the only evidence, save the letters, that has been put in here. I do not mean to withdraw any other testimony from you. It seems to me to be the only evidence that we have got before us now. When I say it seems to be so, I am not to be understood as withdrawing your attention from any other piece of testimony. * * * What are those data ? During the time I have been upon the bench I have not seen, as it occurs to me, a document so thoroughly criticised, analyzed and inspected, twisted, turned upside-down and inside-out, as this has been. Mr. Darling and Mr. Townsend have certainly exhausted their ingenuity in this respect, and you have got not only the lines and outlines as they are drawn, you have had the field-book, and indeed all the information that could by any possibility be shed upon the question, and the sources from which the information itself was drawn.</p> <p>“ You have heard Mr. Haight. He is a young man, somewhat hesitating in his address, but I want you to understand this, that some men naturally hesitate, other men tell a story with remarkable fluency. Some men are naturally quick-motioned, others 'are naturally tardy, nevertheless, the tardy men can tell the truth as well as the one who is flippant of speech. You will remember I am not making the application to these witnesses. I say I would he very much disposed to believe.the man who well weighs his words, and speaks slowly, more so, than the man who rattles on at a great rate, and sometimes indicating a disregard of truth. I do not make this as a reflection upon any witness. He did make the impression upon my mind that he was a young man of superior ’intelligence generally, as did also Mr. Rothwell, arid as did also the gentlemen who were examined this morning for tbe defendants— Mr. Hick and Mr. Sternes. All these experts testified, to my mind, with a great deal of clearness. They are witnesses of the highest character of intelligence in their way, and all of them I think must have impressed you so. There is this difference, I ought to say to you, between a witness who does a thing and works it out and produces a plan, and a witness who takes a plan after it is produced, and draws his deduction from it. I would suppose that the 'man who went over the ground, who entered the mine and took the chain, or the tape in some places, and stepped it in others, that man, it would seem to me, has a facility and an opportunity of acquiring a more accurate knowledge of the locality than the man who takes the product of his labor, and expresses an opinion upon it. However, whether this is so or not is for you. You have heard Mr. Hick’s testimony upon it, and he went very elaborately'in detail into the question, and gave you his reason for regarding the map as not being reliable on account of the want of means of accuracy. The defendants say it is not accurate. Well, I have no doubt that it fails of that entire accuracy that might be reached under any and all circumstances. But is it substantially accurate ? That is the question. Does it to a substantial extent furnish you the data by which you can reach a calculation ? If it does then you may consider it. But there is one other point I want to call your attention tov I put this question to you for your consideration; for after all, there is an underlying principle running through every business transaction, by which business men cari test almost every circumstance that has a bearing upon a transaction.</p> <p>2. [“ And I submit to you this question, and I think I ought to without at all controlling your judgment, whether this company, after they discovered that they had invaded Mr. Price’s tract, and they had made a contractto give him 35 cents per ton royalty, should not have so kept their accounts that it would have appeared upon even casual inspection, exactly the number of tons that came out of his mine.] Now.I submit the question to you as business men, and you will test this proposition by business experience. Mr. Price is a resident of the city of Philadelphia; he commits himself in a measure to the business care and keeping of these gentlemen.</p> <p>3. £“ The defendants were honorary trustees to him in rendering the account of the exact amount of coal that was taken from his mine. It is for them to account to him, and not for him to drag out as best he can a detailed statement from them — they have got the facilities, he has not. They should keep their accounts, it seems to me, in such a way that the agent of Mr. Price, or Mr. Price himself, can see at a glance exactly the number of tons that came from his mine. This criticism only applies after they had knowledge that they had crossed Mr. Price’s line.]</p> <p>“ Now here is a letter from Swoyer, that would seem to me to indicate that he was to keep a mining account. I will read it. It is the letter closing with the 35 cents per ton royalty contract.</p> <p>“ ‘ I will agree to pay you 35 cents a ton mine rent, for all such coal as we may mine from your property between this and the 1st day of January next, but will not agree to mine out any given amount; the coal to be mined in a workmanlike manner,’ &c. This is the part I refer to: ‘Your agent to have access to the mine accounts for the purpose of satisfying yourselves how much has been mined.’ ‘Your agent to. have access to the mine account!’ Where is the account ? Is it possible that this company, with its treasurer and its secretary, with the thousands and hundreds of thousands of tons of coal that have been mined, has no account of the number of tons that have been shipped from the Burroughs mine, and has no account of the number of tons that were shipped from the Price mine ?</p> <p>“ I call attention to this ; you are to pass upon it. I would consider myself derelict if I did not. I do not seek to control you, but look at it in that direction. If they have none, why then, they cannot be produced.</p> <p>4. [“ There has not been the scrape of a pen — a book of any kind — produced here for the inspection of Mr. Price, and yet it is his property they have been handling.]</p> <p>“ I have thus gone somewhat circumstantially and in detail into the law of the case, and I have referred principally to the main points of the testimony in order to shed what light I can upon the question, but after all, the testimony is for you and not for me, and you ought not to be controlled to the weight of a particle of dust by any suggestions that I have made that does not comport with good business judgment, and is not ascertained by the testimony in the case. It would be unfair in me to do so. But I cannot sit here as a figurehead, and shut my eyes and permit that to transpire before me which as a judge I ought to see and which I ought to notice.</p> <p>“ I will answer the points which have been submitted to me by counsel for plaintiff and defendants, which are answered in writing, and are substantially the same as that which I have instructed you in the general observations I have made thus far.</p> <p>5. [“ I will say this, however, in regard to the canal, that Mr: Price owns the land and the coal under the canal, subject to the right of way of the canal company.] That he who owns land on both sides of the canal owns the fee under the canal; that he owns the fee subject to the surface that has been scooped out of the ditch of the canal; and that too, notwithstanding the boundaries or the limits may be in the deed fixed as on the canal .bank or to the tow-path; that is, for canal purposes, and for the right of way, and subject to that he owns under it; and, therefore,' taking this-deed, and supposing it to show title in Mr. Price, he owns the coal under the canal, and had the right to mine it, and these defendants under their contract from Mr. Price had the right to take it, and were bound to account to him for it; and with regard to his title to it — you may assume, that he has title to it, because the deed shows that he owns the property on both sides of the canal up to it, and these defendants have recognised his right by this agreement; and, therefore, whilst it may not estop them from showing that somebody else owned it, there being no evidence that somebody else did own it, you should assume as a matter of fact that Mr. Price does own it.”</p> <p>The verdict was for the plaintiff for $5338.29.</p> <p>The defendants took a writ of error ; they assigned for error,</p> <p>1. The admission in evidence of the deed from Hancock to plaintiff.</p> <p>2. Refusing to submit to the jury the question of intention under the deed from Hancock.</p> <p>3. The part of the charge in brackets numbered 5.</p> <p>4. Refusing defendants’ 3d point.</p> <p>5. Affirming plaintiff’s 4th-point.</p> <p>6. Refusing defendants’ 4th point.</p> <p>7. Refusing defendants’ 6th point.</p> <p>8. The part of the charge in brackets numbered 1.</p> <p>9. The part of the charge in brackets numbered 3.</p> <p>10. The part of the charge in brackets numbered 2.</p> <p>11. The part of the charge in brackets numbered 4.</p> <p>12. Because the judge erred in his entire charge in that he nowhere instructed the jury that any obligation rested upon the plaintiff to make a proper survey of the mine for the purpose of computing the coal mined, but, on the other hand, instructed them that it was to be expected that defendants would have made such survey, although they were then out of possession and without notice of any claim.</p>

<p>Error to the District Court of Philadelphia: Of July Term 3874, No. 69.</p> <p>This was an action of ejectment, brought July 18th 1872, by Catharine Stewart against Philip Bomgardner and Lawrence Denning for two lots of ground on Fifty-fifth street, in the Twenty-fourth Ward, Philadelphia; George Fenner was afterwards admitted as a defendant.</p> <p>On the 16th of September 1868, Bobert .Stewart, a brother of plaintiff, conveyed the premises to her; On the 2d of December 1870, Fenner recovered a judgment at December Term 1870, for $779.34, against Robert Stewart in an action brought on note from him to Fenner, dated November 5th 1866, and payable in two years and eight months after date for $500, and consequently falling due July 5th 1869. Under this judment Fenner bought the premises at sheriff's sale; the sheriff’s deed to, him was acknowledged April 15th 1871.</p> <p>After the sheriff’s sale Fenner brought ejectment against Catharine Stewart and recovered possession under a verdict in his favor. This suit was then brought by the plaintiff; the defence was that the conveyance to her was fraudulent. ■</p> <p>The case was tried before Hare, P. J., April 20th 1874.</p> <p>The plaintiff gave in evidence'the deed to herself and that from its delivery she had collected the rents.</p> <p>The defendants gave in evidence the sale to Fenner under his judgment against Robert Stewart.</p> <p>They offered in evidence a judgment against him, entered November 12th 1867, for $2000; another entered November 2d 1868, for $2000, to Matilda Paskit, a sister of plaintiff and of ■ Robert Stewart; this judgment is marked on the record “satisfied May 15th 1872;” a mechanic’s lien against “Catharine Stewart owner and Robert Stewart contractor,” entered September 2'4th 1870 for $685.72; another judgment entered June 25th 1870, for $176.72 ; another judgment November 12th 1870, for $500.</p> <p>The plaintiff objected to the offer, because the property was not claimed as a gift, and the judgments, &c., were a lien on it and did affect the plaintiff’s title.</p> <p>The evidence was admitted and a bill of exceptions sealed.</p> <p>The plaintiff testified: .“I gave $2100 for one part and $475 for the other; I gave it all to my brother; Robert Stewart has no interest in it in any way; I worked as a laundress in Rockland street, during eighteen or nineteen years; had been living in Mr. Carver’s family; my sister and a young girl were present; I kept the money in a large trunk in a segar box — I cannot say how long; part of the money had been there many years in a house we lived in for seven or eight years ; had $4000 when I moved there; I had got it by hard work; I had done washing and chores for fourteen years; am forty-nine or fifty; my sister received some arising from property sold in Ireland — $500 or $600 — nine or ten years ago, from real estafe; my sister gave me part, and I paid her back part; * * * the money was in large and small notes; a good many $100 bills; also $5’s, $10’s, and $l’s; £80 received from Ireland.”</p> <p>Robert Stewart testified: “ In September 1868, I received from Catharine Stewart $2100 for this property; Mary E. Hunter was there and counted the money; * * * judgment of November 2d 1868, I paid out of,this money $2000 with the balance of this note December Term 1870; I had paid some of this judgment before the last trial, and some of it since; I borrowed $2000 from my other sister and gave her the note; this was after I gave the deed.”</p> <p>The plaintiff offered to show by a witness that Catharine Stewart employed him to put up buildings, and paid him subsequently to the deed from her brother.</p> <p>The defendants objected to the offer, it was rejected and a bill of exceptions sealed.</p> <p>There was other evidence of the actual payment by the plaintiff to her brother at the delivery of the deed, of $2575, the amount claimed by her to be the purchase-money of the real estate in question; also evidence to show that she had the money to purchase the property.</p> <p>Under objection and exception a witness testified for defendants that “Robert Stewart said that Fenner was sharp, but he would fix him; he would not pay Fenner; he would convey the property to his sisters for his board, and when he got married he would buy it back; this was in 1867.”</p> <p>The verdict was for the defendants.</p> <p>The plaintiff took a writ of error, and assigned for error the admission in evidence of the judgments against Robert Stewart, and rejecting evidence of improvements made on the premises by the plaintiff. ,</p>

<p>1. In a suit on a note the affidavit of defence was that it had been given as a donation to a church, on condition that the lot on which it was erected should be conveyed to the church, which had not been done. Held to be sufficient.</p> <p>2. The suit was by the endoi’see ; the affidavit averred that defendant “verily believes and expects.to prove that the note has been passed by the payee to plaintiffs to avoid making this defence, and that the plaintiffs sold the same to the use of the (payee) without consideration as between them.” Held sufficient against the endorsee.</p> <p>3. If an affidavit avers an expectation of ability to prove the allegations, the presumption is that they can be proved; in this case the allegations were sufficiently averred.</p> <p>4. Black v. Halstead, 3 Wright 64; Thompson v. Clark, 6 P. F. Smith 33, followed.</p>

<p>1. A legal presumption of payment of a judgment? &c., does not arise short of twenty years, but a shorter period with persuasive circumstances may be submitted to a jury as ground of presumption in fact.</p> <p>2. p Judgment was recovered in 1857 ; in 1874 a scire facias was issued to revive it; the affidavit of defence was that defendant was informed, believed and expected to be able to prove that it had been fully paid out of proceeds of a sheriff’s sale of defendant’s land after the judgment, the plaintiff being entitled to and did participate in the fund; that defendant could not state the payments more positively, because he could not obtain access to the sheriff’s docket, although he had endeavored to do so, the sheriff living at a distance. Held, the facts set ouf¡ supported the presumption of payment sufficiently to submit the question to the jury.</p> <p>3. The allegations of the affidavit were a sufficiently good reason for not being able to specify with more certainty the amount the plaintiff had received.</p> <p>4. Acts of April 15th 1834, sect. 78 and January 22d 1847, as to the deposit of sheriff’s dockets referred to.</p> <p>5. Diamond v. Tobias, 2 Jones 312; Henderson v. Lewis, 9 S. & R. 384; Hughes v. Hughes, 4 P. F. Smith 240 ; Ross v. McJunkin, 14 S. & R. 369 ; Webb v. Dean, 9 Harris 29, cited.</p>

8. This was an action of assumpsit brought January 9th 1873, by Thomas Heenan, administrator, &e., of Dennis Heenan, deceased, against Thomas Lahey.

127, to . July Term 1875. The proceedings in the case arose under the will of William Agnew, deceased, who died in September 1866; the will was dated April 25th, in the same year. It is as follows:— * * * * * * “ 2.

<p>1. Penn in 1784 leased a lot to Wormley for ten thousand years, at an annual rent, with right of distress and re-entry.to forfeit the lease in default of payment, if there were not sufficient distress on the promises to pay the rent. Wormley died in 1829 without known heirs ; App then took possession of the lot; the plaintiff had been agent of Penn before Wormley’s death, and so continued until 1838, when Penn’s devisee conveyed to him the ground-rent and all the grantor's estate in the lot. No rent having been paid by Wormley, the plaintiff, July 1st 1839, entered for its non-payment, declaring his intention to resume possession. By arrangement with App, in order that plaintiff might make title to him, he remoyed everything from the lot, and continued in its occupancy to take care of it for plaintiff. In October 1839 App and plaintiff signed without seals, a paper by which App agreed “to take the lot,” describing it, on a ground-rent of ¡3G0. Held that this paper was an agreement in writing, under the Statute of Bráuds, for a lease of the land on ground-rent.</p> <p>2. The requirements of the statute are met by a memorandum in writing, signed by the party to be charged therewith.</p> <p>3. If signed by the vendor alone and delivered to the vendee no more is required.</p> <p>4. It is not necessary that the writing be under seal nor in any particular form of words.</p> <p>5. App paid rent till 1850, when he asked plaintiff for a deed and wanted it made to his son Samuel; afterwards Samuel, who occupied the lot, said to plaintiff, he would claim the property, that plaintiff had no title and his father would pay no more rent. Held, even if Samuel spoke by authority of his father, it was a mere declaration accompanied by no act and was not evidence of an adverse holding by App.</p> <p>6. The Statute of Limitations does not begin to run in favor of one who has entered in subservience to the title of another until the privity between them is severed by some unequivocal act; mere declaration of his intention is insufficient.</p> <p>7. April 24th 1851 App wrote to plaintiff that having failed to comply with his agreement to make him a deed for the lot, &c., “ and said neglect •x- * * having continued for so long a time and after repeated demand, I notify you that I no longer recognise your title and will hold you accountable for’the rent already paid you * * * under the claim set up by you,” &c. Held that this was a disclaimer of any adverse holding prior to that date.</p>

<p>Error to the District Court of Philadelphia: Of January Term 1875, No. 90.</p> <p>This was an action of covenant, brought February 21st 1874 by John P. Anshutz, Louisa M. Anshutz, his wife, Annie M. Miller, John Miller and Ann M. Miller, his wife, in her right against William H. Miller.</p> <p>A case stated was filed in the cause, setting out as follows:—</p> <p>“John E. Rorer died in 1870, seised of an undivided one-fourteenth part of certain coal lands, known as the Patterson tract, situate in Schuylkill county, which land he had inherited from his father. John E. Rorer, disposed of all his property, which consisted of realty and personalty, by his last will, which is as follows:—</p> <p>“ ‘ Philadelphia, December 11th 1869.</p> <p>4 This is to certify, this is my last will and testament, that I do most respectfully submit that the children of William, James or Albert Rorer, shall have no share or portion in my estate. And furthermore, I empower John P. Anshutz to settle my said estate, and I bequeath to the said John P. Anshutz, all my right and title to my income from said estate as long as he shall live, and after his death, his widow is entitled to said income; after her death it shall be distributed to Annie M. Miller, daughter of John Miller, and should the wife of John Miller survive (Annie M. Miller), it shall go to her. John E. Rorer.’</p> <p>“John P. Anshutz, Louisa M. Anshutz, his wife, Annie M. Miller, daughter of John Miller, and Ann M. Miller, the wife of John Miller, and mother of Annie M. Miller, which four persons are the only devisees and legatees named in the above will, and John Miller, the husband of Ann M. Miller, have entered into an agreement in writing, with the defendant, William H. Miller, dated the 13th day of February, A. d. 1874, by which they agree to convey William II. Miller, in fee simple, all of their undivided share in the one-fourteenth part of the said tract of coal lands, known as the Patterson tract, in Schuylkill county, in which they have any title or interest whatsoever, derived from and under the will of John E. Rorer, for the price of $1284.37, and William H. Miller agreed to pay for the lands above mentioned the said sum of $1284.37, upon receiving a good, marketable and sufficient title in fee simple to the same. John P. Anshutz, Louisa M. Anshutz, his wife; Annie M. Miller, the daughter, and Ann M. Miller, the wife of John Miller, devisees and legatees as aforesaid, in fulfilment of their agreement, have offered to execute and deliver to William H. Miller, the defendant, a fee simple deed, in the usual form, for the premises, John Miller joining in the deed, but the defendant has refused to receive the same in execution of the agreement, alleging that the plaintiffs cannot convey under the will a good and sufficient marketable title, in fee simple, to the lands. .'</p> <p>14 If the court shall be of opinion that under the will of John E. Rorer, the plaintiffs are seised and possessed of such estates in and to the lands, that they can together convey and assure to the purchaser a good, marketable and sufficient title, in fee simple, to the same, then judgment is to be entered for the plaintiffs for the sum of $1284.37; but if the court shall be of a contrary opinion, then judgment is to be entered for the defendant, with leave to either party to take a writ of error to the judgment of the court.</p> <p>“ The testator had four brothers and four sisters, of whom one brother (William Rorer) and three sisters (Mrs. Ann M. Miller is a sister) survived him, and are now alive, all of them having children now living. The remaining brothers and sisters were dead at the date of the testator’s will. Two of them — the brothers Albert and James — named in the will, left children now living. The said Louisa M. Anshutz, the wife of John P. Anshutz, is the niece of John E. Rorer, the testator, and the daughter of Mrs. Ann M. Miller, the testator’s sister.”</p> <p>The District Court entered judgment for the defendant on the case stated.</p> <p>The plaintiffs removed the record to the Supreme Court by writ of error, and assigned for error, so entering judgment.</p>

<p>1. Promises were leased, the landlord gave the tenant notice to quit and afterwards conveyed part of the premises; the grantee at the end. of the term proceeded under Act of March 21st 1772 to recover possession of the part, the lessor not joining nor taking any steps to recover possession of the remainder : Held, that the case was within the act.</p> <p>2. The object of the Act of 1772 is to furnish a summary proceeding in which the rights of the parties shall be protected and the delays incident to an ejectment avoided.</p> <p>3. Under the act, a landlord cannot proceed for the possession of part of the demise and hold the tenant for the residue.</p> <p>4. Where there is an apportionment of the rent, the tenant is liable to separate actions and distresses.</p> <p>5. A tenant in common may distrain for his share of the rent.</p> <p>6. A rent-charge may be divided by deed or will, so as to make the tenant liable for several distresses without attornment.</p> <p>7. After proceedings before the justices and freeholders had been commenced the tenant, under the 13th sect, of Act of 1772, alleged that by the lease he had the privilege of continuing the term for three years, that he had given the lessor notice iDefore the conveyance that he would avail himself of the privilege, and that therefore the title to the premises was disputed and claimed by himself by a title accruing since the commencement of the lease. Held, that this allegation did not bring the case within the 13th section, not showing that the title to the land was disputed by a right accruing since the commencement of the lease.</p> <p>8. The allegation showed a dispute as to when the term expired, which is one of the questions that the Act of 1772 requires the jury of freeholders to determine.</p> <p>9. The Act of March 24th 1865, providing that where proceedings in Philadelphia under the several acts allowing landlords to recover full possession in which a certiorari is allowed, the certiorari shall be a supersedeas, does not apply to proceedings under the Act of 1772.</p> <p>10. In proceedings under the Act of 1772 the common-law writ of certiorari may issue, but it is not a supersedeas..</p> <p>11. Acts of March 21st 1772, March 25th 1825, April 3d 1830, December 14th 18G3, and March 24th 1865 (Landlord and Tenant), considered and compared.</p>

<p>Error to the District Court of Philadelphia: Of January Term 1874, No. 240.</p> <p>This was an action on the case brought December 30th 1871, by Joseph Cooper, against J. K. Abrahams.</p> <p>The action was for malicious prosecution and false imprisonment “maliciously, &c., and without probable cause.” The declaration set out with great particularity, the charge of larceny, before, the aider-man, the issuing of the warrant, the arrest of plaintiff, his imprison.ment at the “Central Station,” his binding over to the Court of Quarter Sessions, his trial and acquittal, and concluded: — •</p> <p>■ “ By means of which said several premises he, the said plaintiff, hath been and is greatly injured in his said credit and reputation, and brought into public scandal, infamy and disgrace, &c.; * * * and also the said plaintiff bath, by means of the premises, suffered great anxiety and pain of body and mind, and hath been forced and obliged to lay out and expend, and hath laid out and expended divers, large sums of money, in the whole amounting to a large sum of money, to wit, the sum of five hundred dollars, in, for and about the procuring his discharge from the said imprisonment and defending of himself in the premises, and the manifestations of his innocence in that behalf, and hath been greatly hindered and prevented, by reason of’the premises, from following and transacting his lawful and necessary affairs and business for a long space of time, to wit, for the space of one year ; and also by reason and by means of the said premises, the said plaintiff hath been and is otherwise greatly injured in his credit and circumstances.</p> <p>The cause was tried before Briggs, J., October 3d 1873.</p> <p>The evidence of the plaintiff was, that on the 12th of October 1871, he, with his brother,'went into-the defendant’s store in Philadelphia, to purchase some clothing; that after talking some time with defendant about clothing, W'hich he was urging plaintiff to buy, plaintiff positively refused to buy; the defendant then said he would have him arrested for stealing a vest; that defendant called a police officer, who arrested plaintiff and took him before an alderman, who committed him in default of bail; he was taken to the station-house about noon of the same day ; the next morning he was released on bail.</p> <p>In his examination on his own behalf the plaintiff was asked:</p> <p>“ What had you to sleep on in the station-house ?” The question was objected to by the defendant, on the ground that if plaintiff suffered while in the station-house, the city, and not the defendant, was responsible for the injury. The question was admitted and a bill of exceptions sealed.</p> <p>The plaintiff testified that he had no bed but a board, no covering but his own coat; that it was cold, the wind blowing through the grates; that he was taken to Moyamensing prison about eleven o’clock the next day; that he had nothing to eat from the time he had left home until he got to the prison; that he was discharged about one o’clock on bail for his appearance at court. He was tried and found “Not guilty,” November 17th 1871.</p> <p>There wras other evidence corroborating plaintiff’s testimony and detailing the circumstances of the case.</p> <p>The defendant gave evidence for the purpose of showing probable cause and and want of malice.</p> <p>The court charged:—</p> <p>“ Before the plaintiff can recover, the evidence should satisfy you that there was no probable cause for making the arrest, and that the defendant was actuated by malice in doing so.</p> <p>“ Probable cause may be defined to be the existence dr apparent existence of such facts and circumstances at the time of the arrest, as to induce a man of ordinary caution and prudence to believe that the plaintiff was guilty of the larceny of the vest. You may infer malice, if the evidence warrants it, from the want of probable cause.</p> <p>“ Then, if you find that the defendant was actuated by malice in arresting the plaintiff, and did it without probable cause, you will proceed to assess the damages. In doing this, you may consider the deprivation of the plaintiff’s liberty by being thrown into prison; his physical suffering while there, occasioned by the arrest, [and you have heard what he has said about being compelled to lie upon a bench for a bed, and having nothing to eat till the next day at eleven o’clock in Moyamensing prison ;] and the risk he was subjected to of being convicted and punished for the larceny charged against him. These are elements of damages for your consideration, in case the evidence satisfies you the plaintiff is entitled to recover.”</p> <p>The verdict was for the plaintiff for $1000. The defendant took a writ of error: he assigned for error the admission of the evidence objected to and the portion of the charge in brackets.</p>

<p>Error to the Court of Common Pleas of Philadelphia, No. 3: No. 108, to January Term 1873.</p> <p>This was a mandamus by the Commonwealth of Pennsylvania, on the relation of William EL Boileau and Margaret Jones, against the Mount Moriah Cemetery Association. The defendants were incorporated by Act of Assembly of March 27th 1855 (Pamph. L. of 1857, p. 729).</p> <p>The act incorporated a number of persons by name, and authorized them to increase the number of corporators from the lot-holders, so that the association should never be less than twenty nor more than one hundred, with power to ordain by-laws, rules and regulations ; to purchase land and lay it out in plats and burial lots; to erect vaults and buildings, and do all other things necessary to fit “ the ground for a cemetery, and to sell and dispose of such lots, in fee simple or otherwise, for the purpose of sepulture to individuals, societies or congregations, without distinction or regard as to sect, under such conditions, rules and regulations as the said corporators or managers may establish for the government of lot-holders, visitors to the cemetery and burial of the dead.”</p> <p>“ Every lot in said cemetery shall be held by the proprietor for the purpose of sepulture alone, transferable with the consent of the managers thereof, and shall not be liable to attachment or execution ; and said burial lots, when sold by the company, shall hereafter be for ever exempted from taxation.”</p> <p>The following are by-laws of the company : — ■</p> <p>“ 6. All graves, post-holes and excavations for vaults and foundations shall be dug by workmen in the employment of the association, for which the most reasonable charges will be made. No interment shall take place without a written permit from the secretary.</p> <p>“ 7. No right or privilege of burial shall be derived by any compulsory sale or transfer to'any purchaser.</p> <p>8. No transfer or sale of lots made by auction will be allowed to take place in the cemetery. All transfers of lots must be registered in the office of the association.</p> <p>% * % % *</p> <p>“ 10. The remains of no person who died of small-pox or other contagious disease, shall be permitted to be deposited in the receiving vault. No permit shall be granted to a stranger for the use of the vault, unless the sum of five dollars as the first instalment on account of a lot, and also the cost of a grave, be first paid by the person so applying.”</p> <p>The petition set out,</p> <p>1. The act of incorporation.</p> <p>2. On the 16th of April 1875, the company conveyed to Boileau a lot, No. 48, containing 240 square feet, one-half of section 58, to be used for burial purposes. It was paid for, and the deed duly registered. Appended to the deed to Boileau is a “note,” that all transfers of lots, to be valid, must be approved by the secretary and registered, &c.</p> <p>3. On the same day, Boileau entered into a parol agreement to convey a portion of the said lot to Mrs. Margaret Jones, a colored woman and wife of the late Henry Jones, deceased, which said Margaret Jones joined in this petition, the consideration therefor being the sum of $100, which amount at said date was paid Boileau. At or about said date the lot in question was inspected by the petitioners in the presence of the superintendent and secretary, who drew out the plan of the lot, marked the grave, and interposed no objection whatever to the contemplated transfer of the lot to Margaret Jones.</p> <p>4. On April 17th 1875, upon the order of Boileau, vrith the full knowledge and tacit consent of the said corporation, through its authorized ofiicers, the body of one Elizabeth Clark, a colored woman and sister of Margaret Jones, was interred in the said lot, after due public notice given by advertisement in newspapers published in said city, which expressly stated that the remains of the deceased woman would be conveyed to Mount Moriah Cemetery from Bethel Church, which place of worship was well known by the community to be attended solely by colored people.</p> <p>5. On May 10th 1875, Boileau, by deed in proper form and legally acknowledged, conveyed to Margaret Jones the entire lot herein above referred to, to be used by her for burial purposes, the consideration therefor being $180, which said sum was paid in full by Margaret Jones. The deed in question was forthwith delivered to Margaret Jones, without the formality of approval by the secretary and registration.</p> <p>6. Boileau omitted to obtain such approval and registration of the said deed before delivery thereof to Margaret Jones, simply because to his knowledge the rule enjoining such approval and registration was in most cases virtually a dead letter and never strictly enforced. This knowledge was based on the fact that your petitioner had disposed to purchasers of more than $50,000 in value of the burial lots of the said corporation, and not one-half of the deeds to the lots so sold were ever approved and registered, although in many instances interments of bodies took place in the lots referred to in such conveyances with the knowledge and full consent of the corporation aforesaid.</p> <p>7. The transfer of the said lot to Margaret Jones was made with the full knowledge of H. P. Connell, who was the secretary and superintendent, intrusted with its general management. The previous interment of a colored woman in the lot, and that Margaret Jones was a colored woman, and the prospective uses of the»said lot for the interment of the colored members of the family of Margaret Jones, were known to him, and not only was no objection interposed to the conveyance, either by Connell or by the corporation, but at or about the time of the said sale and conveyance to Margaret Jones, Connell expressed to Boileau a regret that the company itself had not made the said transfer to Margaret Jones direct, and a desire that the improving the lot for the use of Margaret Jones should be intrusted to him and another official.</p> <p>8. After the date of the latter conveyance, Margaret Jones and her late husband, Henry Jones, commenced to adorn and improve the said burial lot, and contracted with Mr. Daniel Connell for the erection of an iron railing which should enclose the lot, attached to marble posts, each conspicuously marked “ Henry Jones,” which work was completed in the summer, and the.sum of $160 paid therefor, Connell’s name having been suggested to your petitioner by the officer in charge of the cemetery.</p> <p>9. Neither of the petitioners were ever notified until September 27th 1875, of any opposition to the approval and registration of the deed to Margaret Jones, nor of any objection to the occupancy of the lot by the members of the family on account of their color.</p> <p>10. On September 25th 1875, she sent a messenger to the officers in charge of the cemetery, acquainting them with the death of her husband, and of her desire and intention to inter him in the lot on September 27th 1875; that the officer in charge of the grounds promised compliance with the request, and that a grave should be dug in the lot in proper time, and received the case which was intended to enclose the coffin of the decedent.</p> <p>11. Full arrangements were thereupon made for the funeral, advertisements were inserted in the public press, and a large concourse of friends assembled at his house on September 27th 1875, to participate in the religious exercises and to attend the corpse to the grave.</p> <p>12. About fifteen minutes prior to the time advertised for the funeral, &c., a note, of which the following is a copy, was left at the dwelling of Margaret Jones:—</p> <p>“ Madam: — I am in receipt of a note from you, requesting a grave to be dug in lot No. 48 in Mount Moriah Cemetery. I am unable to comply with your request, because the lot in question is registered as belonging to William H. Boileau, and the rules of the company require me to act only under the orders of the registered owner. Very respectfully,-</p> <p>H. P. Connell, Superintendent.”</p> <p>13. The note was immediately sent to Boileau, who forthwith endorsed thereon:—</p> <p>“Philadelphia, Sept. 27th 1875.</p> <p>“ Dear Sir: — Please to let the bearer bury in the lot.</p> <p>W. H. Boileau.”</p> <p>■The note so endorsed was at once conveyed to the cemetery, and with the two deeds was handed to the officer in charge, who acknowledged the validity of the order, but asserted that objection having been made by some of the lot-holders to the interment of colored people in the cemetery, he was instructed by the managers not to allow the bodies of colored people to be brought within the grounds. He further refused to allow the body of the deceased to be temporarily placed in the receiving vault until the petitioner could make other arrangements for its interment.</p> <p>14. Unaware of this prohibition, upon the conclusion of the religious exercises at the house, the funeral procession traversed its route to the cemetery, when its passage was checked by parties purporting to be sent by the superintendent for the purpose of notifying them of the prohibition.</p> <p>15. The petitioner therefore was compelled to convey the remains of her husband to the receiving vault of Lebanon Cemetery, where it still remains unburied.</p> <p>16. On September 29th 1875, demand was made upon James Smyth, the president of the corporation, and upon the said H. P. Connell, secretary thereof, forthwith to approve and register the deed to your petitioner of the lot in question from the said Boileau; or should that demand be refused, then to acknowledge and execute the order of Boileau for interment, and give permission to bury her late husband in the lot. To this demand the president has made no reply ; but the secretary and superintendent has answered with a peremptory refusal on the part of the corporation to approve or register the deed to your petitioner, or to honor the order for interment.</p> <p>17. The prayer was for a mandamus to the Mount Moriah Cemetery Association to accept and carry into execution the order of Boileau, and at once permit the body of Henry Jones to be interred in lot No. 48, &c., or show cause, &c.</p> <p>An alternative mandamus was issued, returnable October 16th 1875.</p> <p>The defendants answered that the relators were not entitled to a mandamus', because,</p> <p>1. They were improperly joined, their interests being several, and the injuries to them, if any, require different remedies.</p> <p>2. The executor or administrator, &c., of Henry Jones, whose duty it was to pay the expenses of the burial, &c., was not made a party.</p> <p>3. The relators had a specific remedy at law other than was prayed for.</p> <p>4. Because, by Boileau’s own deed it appeared that all tranfers of lots, in order to be valid, must be approved by the secretary and properly registered ; and the petition admitted that there was no approval or registration of the deed to Mrs. Jones.</p> <p>5. The consent of the managers is by the act of incorporation necessary to the transfer of a lot; and a mandamus will not issue to compel an act not merely ministerial, or control the discretion conferred by the act of incorporation.</p> <p>6. A mandamus cannot issue to settle a disputed title to a cemetery lot.</p> <p>They further answered, * * *</p> <p>3. íhey denied the allegations of the concluding clauses of the third paragraph of the petition.</p> <p>4. They averred that the burial of Elizabeth Clark, mentioned in the fourth paragraph, was without the knowledge by the officers of the defendants that she was a colored woman.</p> <p>5. The execution and delivery of the deed from Boileau to Mrs. Jones was admitted, but it was averred that it was never approved or registered.</p> <p>6. 7. They denied the allegations in the sixth and seventh paragraphs of the petition.</p> <p>9. They denied the allegations of the ninth paragraph of the petition, and averred that they had receiv’ed the following request, signed by a large number of lot-holders, viz. :—</p> <p>“We, the undersigned owners of lots in Mount Moriah Cemetery, having learned that a person of color has purchased from Mr. William H. Boileau a lot in said cemetery for the purpose of interment, and demands a requisite transfer of the same from the association, do hereby protest against the same, and request that your approval of such transfer be withheld. We are led to make this request by a knowledge of the prejudice which will be aroused against the cemetery if the precedent of this transfer were established and the consequent depreciation of value of property in this cemetery that would certainly result from such a prejudice.”</p> <p>In pursuance of the request, the managers resolved,</p> <p>“ That we accede to the request of the petitioners, and that the officers be directed to refuse to make such transfer.”</p> <p>Notice of these proceedings was at once given to Boileau, and afterwards he applied for the approval and registration of the deed to Mrs. Jones, and the approval was refused. No notice was given to Mrs. Jones, because she. was not recognised as having any interest in the lot.</p> <p>10. The notice of the death of Henry Jones and Mrs. Jones’s desire to bury him in the lot mentioned in the tenth paragraph of the petition, came to the cemetery on Saturday, September 25th 1875, between eight and nine o’clock at night, directed to the secretary, the messenger bringing with him a case. The secretary was absent, and the note and case were received by the foreman of the grounds, who was without authority in the matter. The respondents denied that the foreman promised that a grave should be dug. The answer of the secretary referred to in paragraph twelve of the petition was sent on the following Monday.</p> <p>“ 16. * * * We refused to permit a transfer of a lot to a colored person because, as we are advised and believe, our charter gave us full discretion in the matter, and we were informed and believed, and now believe, that so great is the opposition on the part of a large majority of our many thousand lot-holders to the interment of colored persons in the cemetery among their deceased friends and relatives, that, if we were to permit it, it would probably lead to acts of,violence and breaches of the peace, large numbers of the dead already interred therein would be removed, as has been expressly threatened in many instances, the association would be financially ruined and compelled to leave the thousands of existing graves to the result of abandonment and neglect, and those who have already paid us their money and obtained rights which it is our duty to protect, would thus be greatly wronged and injured.” * * * * * *</p> <p>“For these considerations we refused to permit the-burial of said Henry Jones on the order of said Boileau, which order was an indirect and evasive mode of reaching a result which he had not been able to reach directly, but one which a provision in our sixth by-law and regulation, that ‘ no interment shall take place without a written permit from the secretary,’ enables us to defeat.”</p> <p>The Commonwealth demurred to the return, and set out the following causes of demurrer :—</p> <p>1, 2. The return did not make known any cause sufficient in law why a peremptory mandamus should not be issued; nor any right in the respondent to refuse to allow and permit the body of Henry Jones to be buried in the lot.</p> <p>3. It was admitted by said return that William H. Boileau was the owner in fee of the lot of ground in the writ mentioned, for purposes of burial, under a deed from this respondent, to him duly registered, and that his order in writing for the burial of said Henry Jones in said lot was known to the respondent; but the respondent has not shown by said return any right of said respondent to refuse to permit Margaret Jones to bury the body of her late husband, Henry Jones, in accordance with said order.</p> <p>4. The fact that said Henry Jones was a colored person did not in law justify the respondent in refusing to permit the burial of the body in said lot of ground.</p> <p>5. The withholding of a special permit for the burial of said body as stated in said return was illegal, and furnished no justification to the respondent.</p> <p>6. It was admitted in the return that Willliam H. Boileau executed and delivered a deed to Margaret Jones on May 10th 1875, for the lot of ground mentioned in the writ; and the averment that the deed was not approved by the managers, or registered in the office of the association, was not sufficient in law to defeat the right of Margaret Jones to bury the body of her late husband in the lot by virtue of the said conveyance to her.</p> <p>7. The respondent had not shown any legal right to refuse to approve and register said deed to Margaret Jones.</p> <p>The Court of Common Pleas, No. 3, Ludlow, P. J., delivered the following opinion :—</p> <p>* * * “ The relators have, or one of them, by the act of</p> <p>the defendants, a fee simple in the lot. Undoubtedly the ground thus held can only be used for the purpose of sepulture, and this right, if it exists in either of the relators, is absolute. A body is brought to the grave for burial: how can a remedy be provided except by mandamus, if then and there the corporation refuse to permit the body to be deposited ? This cause is not like the mere disturbance or obstruction of an easement for which damages may be recovered, as in the case of a pew-owner, who has generally a limited usufructuary right only, and who may recover damages for its destruction or loss ; nor is it analogous to the class of cases in which equity would decree the specific performance of a contract, because a remedy must be speedily applied. The very function of the writ of mandamus is to set in motion and compel action, and any existing legal remedy l’elied upon as a bar to interference by mandamus, must not only be un adequate remedy in the general sense of the term, but it must be specific, and appropriate to the particular circumstances of the case: High, Ex. Legal Remedies, pp. 12-19. Being of the opinion that no legal remedy can be applied in cases of this kind except by the exercise of extraordinary power, I proceed to consider the other propositions of law involved in this case.</p> <p>“ The charter of this corporation is the law of its being, and that charter must be strictly construed. * * *</p> <p>“ Unquestionably, in my judgment, any transfer without the approval of the managers was in direct violation of the organic law of the corporation, and vested no title in Mrs. Jones — the corporation being the paramount owners of the soil, conveyed to Boileau ‘subject to the articles of incorporation under the rules and regulations’ of the company. As the undisputed owners they undoubtedly could incorporate any covenant in their conveyance not prohibited by public policy, and the article of the charter which prohibits a transfer to any person without the approval of the managers, is a -covenant binding upon the grantee in the deed.</p> <p>“ Even if I am mistaken in my view of the law upon this point, the question of title in Mrs. Jones is at least doubtful, and if the case ended here, I should, without hesitation, refuse this writ. There is, however, another relator, and his rights are now to be considered in the final disposition of the cause.</p> <p>“ It is admitted that Boileau is an owner in fee, ‘ subject to the conditions of the act of incorporation under the rules and regulations adopted by the managers of the cemetery, of the lot specified in the pleadings. Upon the 27th day of September 1875, he endorsed upon a letter written by the superintendent to Mrs. Jones, the following:</p> <p>* * * ifc # %</p> <p>(Judge Ludlow here quoted Boileau's endorsement and the secretary’s reply.)</p> <p>“ The sixth by-law declares, among other things, ! that no interment shall take place without a written permit from the secretary.’</p> <p>“ Undoubtedly the by-law is a reasonable and legal one, and ought, in a proper case, to be enforced, but under it, can the owner in fee1 simple be refused the exercise of any right which is incident to an absolute ownership ?</p> <p>“ The answer of this question depends upon the nature of the right claimed, the time wdien, and manner in which it is proposed to exercise it, under the very terms of the charter and by-laws of the corporation. It is not contended here that any objection can be made to the manner in which it was proposed to bury Henry Jones, nor to the time when it was intended to inter his body.</p> <p>“ The only question then remaining is, what was the nature of the right by virtue of which the relator, Boileau, claimed to act ? Untrammelled by charter or by-law, it is clear that Boileau might bury whomsoever he saw fit in his own lot.</p> <p>“ Under the charter, by section 4, the ordinary rights of an owner were only so far restrained as to limit the use of the lot to the ‘ sepulture of individuals, societies or congregations, without distinction or regard as to sect.’ There is here clearly no distinction in terms as to nationality or color, and the word ‘ sect’ necessarily includes any number of individuals who compose the members of a congregation or society, united in some settled tenets, or who follow the teachings of a certain leader. It would seem therefore that, while individuals may be buried by the owner in fee simple of a lot, in said lot, without distinction of nationality or color, no objection can be made because any individual is a member of a society or congregation, commonly called a ‘ sect.’</p> <p>“ But it may be contended that, by virtue of some section of the charter and by-laws, ‘ some condition, rule or regulation’ may limit the exercise of a right which belongs to every owner in fee of the soil. In his letter to Mrs. Jones, the secretary of the company refused to give her the usual permit, because Boileau was the owner of the lot, and thereupon Boileau, under the regulation con-' cerning ‘permits,’ demanded a permit, when he endorsed upon the letter the words, ‘ please let the bearer bury in the lot.’</p> <p>“ What additional condition, rule or regulation was to be complied with ? We have already seen that individuals, without distinction of ‘ sect,’ may be buried by an owner in fee of a lot, in the cemetery, and we have searched most carefully thoughout the charter and by-laws to find a single additional condition, rule or regulation upon the subject.</p> <p>“ While the usual rules exist for the adornment of the grounds, depth of graves, payment of charges, &c., the only by law which limits the right to bury an individual, is the 10th, which declares that no person who dies of small-pox, or other contagious disease, shall be permitted to be deposited in the receiving vault, and that no permit shall be granted to a stranger to use the vault without the payment of a certain fee. It is to observed that the action of the managers on 80th June 1875, related only to the transfer of lots; for upon that day, at the request of certain petitioners, it was resolved ‘ that the officers be directed to refuse to make such transfers.’</p> <p>“We have already expressed an opinion as to the power of the company to control the transfer of lots ; but that question does not arise where the undisputed owner of the ground sees fit to exercise his right as owner, where that right is not limited by charter, by-law, condition, rule or regulation, and is in fact absolute.</p> <p>“ I see nothing in the other points made in this case and not covered by the foregoing opinion; because, if the relators are improperly joined, an amendment will at any time be allowed. The executors ought not to be made parties; and a disputed question of title does not arise, for Mrs. Jones claims either in her own right or under Boileau, and therefore makes no adverse demand.</p> <p>“ On the w'hole case I am, therefore, of the opinion,</p> <p>“ 1st. That Margaret Jones has no legal title to the lot in question, and that the refusal to sanction the transfer of the lot by Boileau to her was within the corporate power of the managers of the cemetery.</p> <p>“ 2d. That the relator, William H. Boileau, as the owner in fee of the ground, had the legal right, as an incident to his ownership, to bury the body of Henry Jones in the lot so owned by him, and that the refusal to issue a permit for that purpose was, under the charter and by-laws of the corporation, an arbitrary and unreasonable, and therefore an unlawful interference with the legal rights of the owner of the soil.”</p> <p>Judgment was accordingly entered for the Commonwealth on the demurrer.</p> <p>The defendants took a writ of error, and assigned for error the entering of judgment for the Commonwealth on the demurrer.</p>

85. This was an action of covenant, brought August 6th 1873, by Ross Bunting and Michael Blynn, administrators, &c., of Thomas C. Bunting, deceased, against the Camden and Atlantic Railroad Company. The suit was on the hereafter-mentioned bond, which was held by the decedent without assignment from the obligee.

<p>Error to the District Court of Philadelphia: Of January Term 1875, No. 109.</p> <p>This was an action on the case, brought September 29th 1878, by the Girard Mutual Building and Loan Association against John A. Houseman.</p> <p>The declaration set out, in one count, that the plaintiffs, being about to lend to one Charles M. S. Leslie the sum of $2000, on a first mortgage, requested the defendant, then being recorder of deeds of Philadelphia, “to certify every unsatisfied mortgage of a messuage and lot, or piece of ground situate on the north side of St. Albans Place, 207 feet 6 inches west of Twenty-third street, in the Twenty-sixth Ward of the said city of Philadelphia, containing in front on the said St. Albans Place 16 feet, and extending in depth northward 62 feet to a twelve-feet-wide alley; given by the said Charles M. S. Leslie since October 1st 1868 ; that the defendant, on the 21st of August 1871, negligently and falsely certified that there was no prior unsatisfied mortgage of the premises given by Leslie since the time mentioned, except one to Elizabeth C. Erwin, from the lien of which the premises mentioned had been released; that, relying on the truth of said certificate, the plaintiffs lent to Leslie the sum of $2000 on the security of his mortgage of the premises to the plaintiffs. The declaration averred that there was, at the time of giving the certificate, remaining of record in the recorder’s office, a mortgage of the premises from Leslie to Alexander Smith, dated August 11th 1870, for $8000, and thereby the mortgage from Leslie to plaintiffs was worthless, and the $2000 lent to Leslie was lost.</p> <p>Another count was that, on the 20th of December 1871, the plaintiffs, being about to lend to Leslie a further sum of $1600 on a mortgage to be given by him on a messuage and lot or piece of ground situate on the south side of St. Albans Place, 335 feet 6 inches west of Twenty-third street, in the Twenty-sixth Ward of the said city of Philadelphia, containing in front on the said St. Albans Place 16 feet, and extending in depth southward 62 feet to a twelve-feet-wide alley, and requested the defendant as recorder to certify every unsatisfied mortgage on said premises given by Leslie since October 1st 1868; that the defendant certified that there was no unsatisfied mortgage but that before mentioned to Elizabeth C. Erwin; that the plaintiffs, relying on the certificate, lent to Leslie the $1600, and took a mortgage from him dated December 19th 1871, on the last-mentioned premises. The declaration averred that there was at the time remaining on record in the recorder’s office an unsatisfied mortgage on these premises from Leslie to Smith, dated October 27th 1870, for $2500: that thereby the plaintiffs’ mortgage was worthless, and the $1600 were wholly lost.</p> <p>The case was tried October 28th 1874, before Lynd, J.</p> <p>The plaintiffs gave in evidence the following papers :—</p> <p>No. 1.</p> <p>“No. 2327 St. Albans Place.</p> <p>“Please certify every unsatisfied mortgage of messuage and lot or piece of ground situate on the north side of St. Albans Place, 207 feet 6 inches west of Twenty-third street, in the Twenty-sixth Ward of the city of Philadelphia, containing in front, on the said St. Albans Place, 16 feet, and extending in depth northward 62 feet, to a twelve-feet-wide alley, given by Charles M. S. Leslie since October 1st 1868.</p> <p>“ To John A'. Houseman, Esq., Recorder of Deeds.”</p> <p>“ On searching the index of mortgages for the city and county of Philadelphia, I do not find any unsatisfied mortgage of the premises, or any part thereof, by Charles M.' S. Leslie since October 1st 1868, except one to Elizabeth C. Erwin at al., dated October 13th 1868, for one hundred and' sixty thousand dollars, and another to The Girard Mutual B. & L. Asso., dated August 18th 1871, for two thousand dollars.</p> <p>Witness my hand and seal of office this twenty-first day of August, A. d. 1871.</p> <p>[seal.] M. W. Myers, pro Recorder.”</p> <p>“ Note. — The premises above described released from the lien of the $160,000 mortgage. * * * November 1st 1869. * * *</p> <p>Endorsed on above search.</p> <p>“ On searching the index of mortgages for the city and county of Philadelphia, I find no unsatisfied mortgages of the above described premises, or any part thereof, given by Charles M. S. Leslie, from October 1st 1868 to August 21st 1871, except two, one of them to Alexander Smith, dated August 11th 1870, for three thousand dollars, and the other one of them to the Girard Mutual Building and Loan Association, dated August 18th 1871, for two thousand dollars.</p> <p>Witness my hand and seal of office this seventh day of August, A. D. 1873.</p> <p>[seal.] Jas. W. Allen, pro Recorder.”</p> <p>“Received August 18th 1871, to the Girard Mutual B. & L. Asso., dated August 18th 1871, for $2000.”</p> <p>No. 2.</p> <p>“ Please certify every unsatisfied mortgage of messuage and lot or piece of ground situate on the south side of St. Albans Place, 335 feet 6 inches west of Twenty-third street, in the Twenty-sixth Ward of the city of Philadelphia, containing in front on the said St. Albans Place 16 feet, and extending in depth southward 62 feet to a twelve-feet-wide alley, given by Charles M. S. Leslie, since October 1st 1868.</p> <p>“Leslie.</p> <p>“ To John A. Houseman, Esq., Recorder of Deeds.”</p> <p>“ On searching the index of mortgages for the city and county of Philadelphia, I do not find any unsatisfied mortgage of the premises, by Charles M. S. Leslie, since October 1st 1868, except one to Elizabeth 0. Erwin et at, for one hundred and sixty thous- and dollars, dated October 13th 1868, and one other to The Girard Mutual Building & Loan Association, for one thousand six hundred dollars, dated December 19th 1871.</p> <p>“ Witness my hand and seal of office this 20th day of December, A. d. 1871.</p> <p>[seal.] M. W. Myers, pro Recorder.”</p> <p>“Note. — The premises in question released from the lien of the $160,000 mortgage. * * * November 1st 1869. * * *”</p> <p>“ On searching the index of mortgages for the city and county of Philadelphia, I find no unsatisfied mortgages of the above described premises, or any part thereof, given by Charles M. S. Leslie, from October 1st 1868, to December 20th 1871, except two, one of them to Alexander Smith, dated October 27th 1870, for two thousand five hundred dollars, and the other one of them to the Girard Mutual Building & Loan Association-, dated December 19th 1871, for sixteen hundred dollars.</p> <p>“ Witness my hand and seal of office this seventh day of August, A. D. 1873.</p> <p>[seal.] Jas. W. Allen, pro Recorder.”</p> <p>The plaintiffs called Albanus ITolby, who testified : “ I was conveyancer for the building association in 1871; I passed the title; I drew the mortgage and examined rhe title; I ordered searches; this is the mortgage search on which the $2000 were loaned ; the $2000 were paid to C. M. S. Leslie ; this is the mortgage search (December 20th 1871) I ordered ; the $1600 were paid Leslie.”</p> <p>Being cross-examined, witness said: “ Leslie applied in writing for the loans ; I searched for the writing ; I know the contents ; it was for a loan of $2000 on the St. Albans Place property ; it said subject to a ground-rent of $2500 only, and no mortgage ; I did not take this search to the office myself; the order is in Leslie's clerk’s handwriting; I first saw this after it was signed by the recorder with the seal of his office attached; Leslie was in great haste; I said I could not get it through in a certain time; he offered to help ; I told him he might order the search for me ; he did so ; I first saw search No. 2 after the certificate- on it; it is not usual for me to let the borrower get out the search for me; Leslie could get the search out of the recorder’s office more quickly than I; he had more facilities.”</p> <p>Being re-examined, he said : “ Leslie was a conveyancer ; age about 48 years ; was a conveyancer about twenty-five years ; in August 1871 he was considered A No. 1; the searches disclose the building association mortgage; we generally record first, and take out the searches so as to show the mortgage; I examined the searches before the money was paid; Leslie got out .all the searches; I ordered them through him ; I saw none of the certificates till I got them from him ; we foreclosed our mortgage when Leslie was three months in arrear; he paid his dues for a time ; I think in the summer of 1873 we became alarmed ; Leslie had not left then.”</p> <p>It was admitted that at the date of the certificates the two mortgages of $3000 and $2500 respectively, from Leslie to Smith, were on record in the recorder’s office, as set out in the declaration.</p> <p>The mortgages were afterwards sued out, and the premises which they bound sold by the sheriff. In consequence of the prior mortgages, which were not certified, the plaintiffs realized much less than the amount due them.</p> <p>The defendant offered no evidence.</p> <p>They asked the court to charge :—</p> <p>“1. If the jury believe that the plaintiffs, through their conveyancer, relied uppn C. M. S. Leslie to procure the certificates of search, and Leslie, so acting for himself, did procure the' certificates, there can be no recovery in this case.</p> <p>“2. If C. M. S. Leslie was employed by the plaintiffs to procure certificates of search, and did so procure them for the plaintiffs, then the knowledge of Leslie of the existence of the uncertified mortgages was imputed to the plaintiffs and is their knowledge.”</p> <p>Judge Lynd refused both points, and told the jury that the plaintiffs’ evidence disclosed negligence in law, and the measure of damages was the amount loaned with interest, less whatever had been paid on account.</p> <p>He reserved these points, viz.:—</p> <p>“1. Is there any evidence of negligence?</p> <p>“ 2. Leslie having been the agent to procure the searches, does the knowledge by him of the fact of the prior mortgages estop the plaintiffs from alleging that the defendant was negligent, or that he made a false certificate ?”</p> <p>Verdict was for the plaintiffs for $4339.90, subject to the opinion of the court on the reserved points.</p> <p>The court in banc afterwards entered judgment for the plaintiffs on the verdict on the reserved points.</p> <p>The defendant took a writ of error, and assigned for error,</p> <p>1. Withdrawing from the jury all questions of fact, except the amount of damages alleged to have been sustained by the plaintiffs.</p> <p>2. Ruling that there was nothing in the cause but a question of lawq to be determined by the court.</p> <p>3. Withdrawing from the jury,-under the testimony presented, the question of whether Charles M. S. Leslie was the agent of plaintiffs in procuring the certificates of search from the recorder of’ deeds, or whether said Leslie was not acting in the matter the himself and in his own behalf.</p> <p>4. Not instructing the jury that if C. M. S. Leslie was the agent of the plaintiffs in the matter of the searches, said Leslie’s knowledge of the existence of the prior uncertified mortgages was the knowledge of the plaintiffs and imputable to them.</p> <p>5. Instructing the jury that the testimony disclosed such negligence in law as to entitle the plaintiffs to recover.</p> <p>6. 7. Refusing defendant’s points.</p> <p>8. Entering judgment in favor of the plaintiffs on the points reserved.</p>

<p>1. An executor, who was also surviving partner of the testator, chai’ged himself in his account with $2262 as the value of the testator’s interest in the firm ; the auditor, after a tedious examination of books, &c., found that the interest was worth §52242 more, and surcharged him with that sum : Held, that the burden of the expense of resisting the claim should not be thrown on the estate.</p> <p>2. The accountant was not entitled to credit for counsel fees in such litigation, but should be allowed such as were rendered for the benefit of the estate and in protecting himself in defending proper items in his account.</p> <p>3. Where an accountant has not been guilty of fraud or bad faith, he should not be deprived of commissions merely because he has been surcharged in his account.</p> <p>4. The testator gave all his estate in trust to pay the income to his wife for life; on her death, to his mother on the same trust; after her death, to three persons absolutely. He then directed the executor to purchase a watch for another legatee, and gave §1500 to each of two charitable institutions. The auditor decided that the primary intent was to devote the income of his estate for the support of his widow and mother during their lives, and that therefore the payment of the specific legacies was to be postponed until the termination of the life estate : Held to be correct.</p>

<p>Error to the District Court of Philadelphia: Of January Term 1874, No. 360.</p> <p>This was an action on the case, commenced November 28th 1871, by Marcella Gerety against The Philadelphia, Wilmington and Baltimore Railroad Company, for negligence by the servants of defendants in causing the death of her husband, Peter Gerety, by a locomotive engine of the defendants whilst he was crossing their track in his two-horse wagon ; the disaster occurred November 6th 1871.</p> <p>The case was tried April 21st 1873, before Briggs, J.</p> <p>For plaintiff C. McGlennen testified, that he was working at Gibson’s oil works, about 200 feet from the crossing of the railroad at Fifty-eighth street, Philadelphia, and about three miles from the depot at Broad and Prime streets ; the crossing there is an ordinary dirt road; witness heard a noise on the railroad, looked up and saw ¡the deceased go before the engine on the railroad; it threw him down on the right side; witness heard no whistle; had not seen him ■until he was struck by the engine; the engine gave two whistles after he was struck ; there was no flagman at the crossing ; the train was coming from Wilmington; the track crosses at grade ; between the works and the track it is up hill, about half the distance, heavy grade.</p> <p>On cross-examination, he said: “We hear all whistles at Fifty-eighth street; might whistle and I not hear it; you must get on the track I think before you can see all the way down the track ; the hill commences about one hundred feet from the railroad; the railroad is about twelve feet above the meadow ; from the bottom of the hill could not see half a mile down the railroad; the character of the neighborhood is open country ; there are no trees as you go up the hill; four passenger trains pass every day before noon ; eight or nine freight trains ; the trains do not generally whistle at Fifty-eighth street; whistle when they get by.”</p> <p>Edward Miller testified that “ he heard the train coming when he was standing about a square from Fifty-eighth street; he heard no whistle until after the accident or about the accident, heard 'two whistles then; one horse was standing on the platform, the other was lying between the two tracks; it was up grade for about fifty feet; the road winds; the track is straight about a mile from Fifty-eighth street.”</p> <p>A number of witnesses -who were in sight of the crossing at the time of the accident, testified that they heard no bell or whistle before it occurred.</p> <p>Alexander Richardson, who was the engineer of the train, testified : * * * “ Had Westinghoúse brake; air brake; gives control of train from locomotive ; seven passenger cars on train ; the running rate at that time was twenty-five miles an hour; through express train from Chester; when we whistle past Fifty-eighth street, we whistle for Gray’s Ferry; running on that train seven years; I can see the station at Fifty-eighth street crossing; three-quarters of a mile to a mile; coming to Philadelphia it is a straight line for a mile ; I can see a point fifty feet to the right of the track at Fifty-eighth street, from four to five hundred yards below Fifty-eighth street. Hay lane is five hundred yards from Fifty-eighth street; a whistling post below Hay lane; I whistled below Hay lane, at the whistling post, a signal whistle for the crossing at Hay lane ; * * * whistle can he heard sometimes better than others; I think it could be heard at Fifty-eighth street; I was on the right hand side of the locomotive ; was looking out; tracks straight from the post to Fifty-eighth street; I saw deceased when he was on the rise of the hill, coming out of the oil works.; I was about six or seven telegraph poles from the crossing when I first saw him, and was down on the grade, coming up; he was just about the foot of the rise ; I had got to the oil works; his horses were walking up, and when he got short distance from the track, he struck the horses with the lines, and horses jumped forward to the track, and ran in right ahead of us ; he was standing hack of the seat; was an open lumber wagon ; when I first saw him, he was about ninety feet from the track, at the foot of the rise; there was nothing between him and me, when I first saw him ; when I first saw him horses were walking, until he slapped the lines; the train was a short distance from the crossing, about fifty to one hundred feet, when he slapped the lines; I stopped the train as quick as I could ; I whistled for brakes ; * * * I was so excited, I whistled before I struck the horse; whistled as soon-as I saw him coming on track; train stopped in about nine car lengths; car is about ninety feet long, I think; we stop with two cars beyond the Fifty-eighth street crossing ; deceased was looking to the head of his horses when coming, when I first saw him — when I saw coming on the track ; stopped as quick as I could ; air brake took effect; he was at Fifty-eighth street; only whistling post for Fifty-eighth street is below Hay lane ; I judge it is sufficient whistle for Fifty-eighth street; signal whistle is a long whistle; if it was half a mile from post to Fifty-eighth street, and train going thirty miles an hour, would be a half of minute in reaching Fifty-eighth street; had a full view of the deceased from seventh telegraph pole; nothing to prevent my seeing him, and he could see me; he could not help seeing me; I had not the slightest idea of his intention to drive across the track; when he slapped the lines, I tried to stop; there was nothing to prevent his stopping. * * * The air brake took effect that morning instantaneously; I was on that train some length of time afterwards ; you might have a wet rail, and it would not hold the air brake ; it was a dry, cold morning ; had a dry rail; sometimes you can, and sometimes you cannot stop; when stopped at Fifty-eighth street, whole train had passed crossing; the hind car was two car lengths from the crossing when it stopped; * * * when I first saw deceased I did not whistle, and I did not sound the bell; the first whistle I gave was for brakes; when he dropped reins on back of horses, he was right near the track; might have been eight or ten yards from the track; he kept walking until he got eight or ten yards from the track, and then he slapped the lines ; the whistle approaching a station is to let conductor know we have heard bell, and not a signal whistle for crossing. Plenty of time to stop between refinery and Fifty-eighth street; would stop, if I had supposed deceased meant to cross.”</p> <p>The plaintiff closed and the defendants moved for a nonsuit.</p> <p>Judge Briggs said:—</p> <p>“ 1 think the defendants should have whistled or given notice of their approach, after the engineer saw the deceased; but I think there was contributory negligence, and I direct a nonsuit.”</p> <p>Judgment of nonsuit was accordingly entered and the court in banc refused to take it off. ■</p> <p>' This was assigned for error on the removal of the record to the Supreme Court by the plaintiff.</p>

<p>1. As a general rule a constructive trust as to personal rights may he asserted at any time within six years after the knowledge of the facts creating it.</p> <p>2. Such trust is barred after six years, but laches for a shorter period, aided by other circumstances, will bar the right.</p> <p>3. Plaintiffs filed a bill alleging that they and defendants were associated in the formation of a company; that defendants purchased- lands and sold them to the corporation at a price much beyond cost, concealing the price .paid, and thereby a resulting trust arose, and praying for payment of the profit, &e. Under the circumstances in the case the bill was dismissed on account of laches in filing it four and one-half years after knowledge of the facts.</p> <p>4. The bill was by plaintiffs, “ and all other stockholders,” &c.; the relief prayed for was that defendants should pay to the corporation. This was to obtain relief through the equitable rights of the corporation, and required a consideration of the knowledge and conduct of the corporation.</p> <p>5. The land was conveyed to the corporation April 8th 1863 ; the bill was filed March 19th 1870; the minutes of the same April showed the facts which were the ground of the complaint. Nothing was done to establish a constructive trust. In October next the company authorized a loan, to prevent which nothing was done. Held, that the plaintiff thereby acquiesced in it. •</p> <p>6. Money was borrowed, judgments were obtained against the'company, and all their property sold and bought in for the creditor’s. These new business arrangements having intervened after the plaintiffs had knowledge, their delay .was unreasonable and was fatal to the bill.</p> <p>7. Although the transaction was originally voidable, the acquiescence for less than six years of those who might have avoided it having induced the offending parties to believe that it was not to be questioned, barred the plaintiff.</p> <p>8. Two stockholders who became plaintiffs by amendment more than six years after their knowledge, are to be considered as if they had filed an original bill when they asked to come in as plaintiffs.</p> <p>9. Ashhurst’s Appeal, 10 P. F. Smith 290, followed.</p>

<p>Appeal from Nisi Prius: Of July Term 1872, No. 1. In Equity.</p> <p>This was a bill filed April 8th 1872, by John McBride against Thomas R. Patton and William Blakely, executors, &c., of Martha McBride, deceased, and Samuel J. McOandless and five others, who were children of the decedent and legatees under her will.</p> <p>The plaintiff was the husband of the decedent, the last-named defendants being her children by a former marriage. During her marriage with her husband she owned two houses in Philadelphia. She went to Minnesota in August 1866, the plaintiff followed her in October 1866, and they became domiciled there; in the spring of 1867 she purchased a farm in that state and the deed was made to her. In the summer of the same year, Mrs. McBride, being ill, sent for a lawyer to prepare a will for her.</p> <p>By the laws of Minnesota, all property owned by a married woman at any time during her marriage and “ the rents, profits and increase thereof shall be held by her free from the debts of her husband to her sole and separate use, the same as though she were a feme sole, but shall not be disposed of by her without the consent of her husband,” &c. If she die intestate her personal property shall vest in her husband and he shall be tenant by the curtesy of her real estate and shall hold her personal property and her interest “in any real estate; saving his estate by the curtesy; subject to the payment of her debts.” If she should leave issue by any former husband to whom the estate might descend, such issue should take it discharged of the right of the surviving husband to hold as tenant by the curtesy.</p> <p>The will was drawn, but the plaintiff at first refused to sign it because it gave her property to all her children, not regarding his claims at all. The plaintiff afterwards expressed his willingness to sign the will upon the payment of $1200, which he alleged she owed him; after several ineffectual efforts he finally agreed to sign the will for $900, to be paid to him out of the Minnesota farpi, which was to be sold.</p> <p>By the will she devised to her children all her real estate in Philadelphia. She directed that the Philadelphia property should be rented by her executors and the rents invested. She also authorized them to sell the property and invest the proceeds; when her youngest child arrived at the age of eighteen years, “ said property or the avails thereof,” was to be equally divided amongst all her children.</p> <p>She gave her personal property to her children in the manner set out in the will.</p> <p>She made Patton and Blakely (defendants), executors, as to her Pennsylvania estate; and John C. Hunter as to her Minnesota estate. The attestation of the will was as follows :—</p> <p>“ In testimony whereof the said Martha R. McBride and John McBride, her husband, who hereby consents to and approves the foregoing will, hereunto sett-heir hands and seals this 7th day of June 1867. Martha R. McBride, [seal.]</p> <p>John McBride, [seal.]”</p> <p>Mrs. McBride died in July 1867. Her will was first admitted to probate in Minnesota. A certified copy of the will and probate was entered of record in the register’s office in Philadelphia, and letters testamentary there issued December 23d 1867, to the Pennsylvania executors. The bill charged that Patton and Blakely had received considerable amounts of rent, had sold the real estate in Philadelphia and received the income from the investments, and that the plaintiff was entitled to such rents and income as tenant by the curtesy; but that the executors refused to pay them to him, alleging that by joining in the execution of his wife’s will he had waived his claim as tenant by the curtesy. He averred that his joining in the execution of the will was for the purpose of enabling her to make a will valid by the laws of Minnesota, and for no other purpose, and that he did not then or at any other time release or waive his right as tenant by the curtesy to her real estate in Pennsylvania.</p> <p>The prayer was for an account of the rents of the Philadelphia real estate and the income received by the executors from the proceeds of its sale ; that the rents and income be paid to him, and for a decree that he be entitled to the income of the investments for his wife.</p> <p>The executors and legatees filed separate answers; neither controverted the foregoing facts.</p> <p>The executors said they were mere stakeholders, and ready to render an account, and submitted themselves to the direction of the court.</p> <p>The legatees averred that, under the facts, the plaintiff had precluded himself and was debarred from any claim as tenant by the curtesy to the Philadelphia real estate or its proceeds.</p> <p>The case was referred to C. H. Hart, Esq., as master. He reported as his opinion, that the will of Martha McBride was John McBride’s deed, and took effect against him as soon as it w7as sealed and delivered, and he could not dispute it. By the provisions of the will the rents of the property were expressly disposed of, and he could not now assert that his signing the will was a mere matter of form in order to comply with the statute of Minnesota ; that he claimed under the lawrs of Pennsylvania, where the real estate w7as situated. Under the statute the will would have been invalid without his consent; but as soon as he consented in the manner provided by it, the consent was his contract outside of the statute.</p> <p>The master therefore recommended that the bill should be dismissed.</p> <p>Upon exceptions to the report by McBride, the court at Nisi Prius, Sharswood, J., confirmed the master’s report and dismissed the bill with costs.</p> <p>McBride appealed to the court in banc, and in several specifications assigned the decree for error.</p>

<p>1. A mechanic’s lien was against “ Ella Lloyd, owner or reputed owner, and James T. Lloyd her husband,” for work, &c., about the repair'of buildings “ belonging to the said Ella, * * * the owner of said buildings is Ella Lloyd,” &c. Eeld, that as it did not appear on the claim that the work, &c., was at the request or on the contract of Mrs. Lloyd, it was worthless.</p> <p>2. Inasmuch as it did not appear that the work, &c., was at the wife’s request, it did not matter that the work, &e., was in fact at her request.</p> <p>3. The divestiture of a wife’s title under a mechanic’s lien depends on what appears on the record, not on proof that she consented to the contract.</p> <p>4. All things necessary to the validity of a mechanic’s lien must appear in it to bind the wife.</p> <p>5. In this case a scire facias was issued against husband and wife on the claim ; a rule of reference was entered, award against defendants and judgment ; a rule to set aside judgment and strike off the lien discharged. Eeld, that the plaintiff had no lien against Mrs. Lloyd’s property and should not have had judgment.</p> <p>6. Dearie «. Martin, 28 P. E. Smith 55; Einley’s Appeal, 17 P. E. Smith 453; Mahonw, Gormley, 12 Harris 80.</p>

<p>1. "Wren borrowed money at usurious interest and gave a bond for its payment, on which judgment was entered. He was afterwards adjudged a bankrupt, and his land sold by the assignee subject to the judgment. Held, that the purchaser could not have the judgment reduced by the amount of the usury.</p> <p>2. The Act of May 28th 1858 (Usury), applies only to the parties to the transaction ; it being at the election of the borrower whether he will withhold the excess or recover it back within the time limited.</p> <p>3. In the distribution of a fund judgment creditors may attack a judgment collaterally for fraud on them, but not because it is a fraud on the debtor.</p> <p>4. A subsequent judgment creditor cannot set aside a judgment merely because it is erroneous.</p> <p>5. Payment of usury is not necessarily fraudulent as to creditors.</p> <p>6. Whenever the usurious contract is intended to defraud creditors, or when the circumstances of the debtor are known to be such, that it can be reasonably presumed that this will be the natural effect, creditors have the right to postpone the excess of interest.</p> <p>7. The purchaser having bought subject to the judgment, is .presumed to have paid as much as the amount of the judgment less than he would have done.</p> <p>8. There was no privity of contract between the creditors and the purchaser and he cannot invoke their equities and claim under them for his exclusive benefit.</p>

<p>1. By Acts of Assembly Althouse and others were appointed commissioners to lay out, &e., a state road in Porter township, Schuylkill county, to be constructed at the expense of persons occupying lands contiguous to the road ; they were directed, in place of the supervisors, to take charge of the opening aud construction of the road and to receive the road tax from the collectors and county treasurer, to issue certificates of indebtedness to persons advancing money towards constructing the road, to be paid from the road tax. The road was constructed and such certificates were issued. Thompson, the township collector, received §1831 from persons at whose expense the road was to be made. Afterwards an act repealed the part of the acts by which the r.oad was to be made at the expense of the persons occupying the land, and the taxes, &c., were to be received by the commissioners. Held, that the office of the commissioners was abolished and they had no authority to collect the taxes, &c., from the township collector.</p> <p>2. The repeal did not affect the contracts of those advancing the money on the pledge of the fund appropriated to pay the certificates.</p> <p>3. The commissioners were municipal agents subject to be removed by the repeal of the law under which they were appointed.</p> <p>4. The remedy of the certificate holders was by suit against the township supervisor and treasurer and by mandamus against the county treasurer.</p> <p>5. Where the remedy is essential to the contract, which cannot" be executed without it, the legislature cannot take the remedy away; but may change the public agent who receives and pays out the money.</p> <p>6. The commissioners were not trustees, having no fund of which they were custodians; the township being the debtor to the certificate holders.</p> <p>7. Philadelphia v. Pox, 14 P. P. Smith 169, recognised.</p>

<p>Error to the Court of Common Pleas of Berks county: Of January Term 1876, No. 228.</p> <p>This was an amicable action and case stated, filed February 28th 1875. Jerome L. Boyer, administrator c. t. a. of B. Frank Boyer, deceased, was plaintiff, and C. B. Lantz defendant.</p> <p>The facts agreed on by the case were as follows:—</p> <p>B. Frank Boyer, the deceased, died on the 28th of September 1873, seised of a messuage, a lot of ground on Penn street, in the city of Beading, being 35 feet front and 270 feet deep. He left a will, dated June 6th 1872. Amongst other provisions were the following:—</p> <p>“ Item. I give and devise unto my said wife my real estate in Penn street, between Tenth and Eleventh streets, in which I now reside, containing in front on Penn street 35 feet, and in depth 270 feet, together with all the improvements now erected thereon, or which I may hereafter erect thereon. She to have and to hold the same for and during the term of her natural life. This real estate to be cleared of all encumbrances.</p> <p>“ In case my said wife should so desire, and my executors should deem it to be to the best interest of my wife and children that my Penn street property should be sold, they may sell the same; and for this purpose I do authorize and empower them to sign, seal, execute and deliver unto the purchaser or purchasers, all such deed or deeds as may be necessary to assure unto them a fee simple title thereto, and the proceeds of such sale shall be by them invested in good real estate security, the interest whereof shall be paid to my said wife during life; but in case she should desire it, my said executors shall purchase for my said wife a house wherever she shall select the same, the price of which however shall not exceed the sum of $10,000, of which she shall then have the use, &c., during life; such house to be purchased only in case the Penn street property is sold, and then only if my wife desires them to do so. * * * *</p> <p>“ Item. As to all the rest and residue of my estate, real, personal or mixed, it is my will that the same be distributed between my wife and children according to the intestate laws of this Commonwealth.</p> <p>“ And I do hereby nominate and appoint my two friends, George E. Baer and Michael Haak, executors of this my last will and testament.”</p> <p>George E. Baer and Michael Haak, the executors named in the will, accepted the trust, and on the 25th day of January, A. D. 1876, were, upon their own petition to the Orphans’ Court of Berks county, having first filed their accounts, which were duly confirmed, discharged from said trust. On the same day letters of administration cum testamento annexo de bonis non were granted to Jerome L. Boyer.</p> <p>On the 27th day of January, A. D. 1876, Lizzie Boyer, the widow,’made the following request: — ■</p> <p>“ Whereas my husband, B. Erank Boyer, Esq., late of the city of Reading, died seised in his demesne as of fee of a certain house and lot'of ground, No. 1033 Penn street, in the city of Reading aforesaid, and left a will and testament, in and by which he provided, inter alia, as follows, viz.: (stating the clause as to the sale of this property on her desire.)</p> <p>“ Now, therefore, I, Lizzie Boyer, widow of the said B. Erank Boyer, deceased, do hereby express my desire that the aforesaid property be sold, and do request Jerome L. Boyer, to whom, upon the discharge of George E. Baer, Esq., and Michael Haak, the executors named in said will, letters of administration cum testamento annexo de bonis non were granted, to sell the aforesaid property under and by virtue of the provisions of the will aforesaid.”</p> <p>1'n consequence of the foregoing request the said Jerome L. Boyer advertised said house and lot of ground for sale (as No. 1) on the 19th of February, A. n. 1876, and on said last-mentioned day sold the same to C. R. Lantz, the defendant, for $16,000.</p> <p>One of the conditions was:—</p> <p>“ The purchaser shall immediately after the sale, execute an agreement for the payment of the purchase-money in the following manner, viz.: On property No. 1, $500 forthwith, $5000 on April 1st 1876, $5000 on October 1st 1876, and the balance on the 1st day of January 1877.” * * * *</p> <p>Appended to the conditions of sale was the following agreement :—</p> <p>“It is hereby declared and agreed, by and between Jerome L. Boyer, administrator, and the vendor of the estate mentioned in the above conditions, and O. R. Lantz, the purchaser, that the said C. R. Lantz has become the purchaser of property No. 1 of the premises so sold, at the sum of $16,000. And that the said conditions of sale shall be taken as the terms of agreement for the said sale and purchase respectively, and be observed and fulfilled by the said Jerome L. Boyer and O. R. Lantz respectively, in all things. As witness our hands this 19th day of February, A. D. 1876.”</p> <p>O. B. Lantz refused to pay the $500, which, according to the terms of the agreement, were due and payable forthwith, upon the ground that the said Jerome L. Boyer, administrator as aforesaid, had not the power to vest in him, Lantz, the title to the premises.</p> <p>By the case it was agreed:—</p> <p>“ If the court shall be of opinion that the plaintiff is competent to vest in defendant the title of B. Frank Boyer, deceased, to the said premises, by deed executed by him in pursuance of the powers in the said will contained, and of said request of Lizzie Boyer, the widow of said B. Frank Boyer, deceased, and for the purposes in said will mentioned, then judgment to be entered for the plaintiff for the sum of $500, but without costs of suit; but if not, then judgment to be entered for defendant, either party reserving the right to sue out a writ of error thereon.”</p> <p>The court (Sassaman, J.) entered judgment for the plaintiff for $500, according to the case stated.</p> <p>The defendant took a writ of error and assigned so entering judgment, for error.</p>

<p>Appeal from the Orphans’ Court of Berks county: Of January Term 1876, No. 221. In the estate of Jonathan Hufman, deceased.</p> <p>The decedent died in 1873, and administration of his estate was granted on the 18th of March of that year to Margaret Hufman, his widow, and George Hufman. The whole of the personal estate of the decedent was appraised at the sum of $99.25. This the widow in writing claimed should be set apart to her under the Exemption Act of April 14th 1851, § 5, Pamph. L. 613, 1 Br. Purd. 416, pi. 60. The decedent owned also, at the time of his death, a piece of land; and at the time the widow required the personal estate to be set apart to her, she verbally claimed the remainder of the $300 out of the land. There was no appraisement of the land under the provisions of the Act of April 9th 1849, § 2, 1 Br. Purd. 637, pi. 21, nor did the widow ask to have one. The land was subsequently sold by the administrators. They filed their administration account, charging themselves with the proceeds of the real estate, and showing in their hands, after the discharging the expenses of the administration, the sum of $776.50. J. Warren Tyson, Esq., was appointed auditor to report distribution of the balance.</p> <p>The claimants before him were the widow, for $200.75, the balance of the $300 exemption, and William Hufman, a judgment-creditor, for $860.95.</p> <p>The widow contended that, inasmuch as the real estate consisted of one tract of land, and incapable of division, it was not necessary for an appraisement to be had, but that she could claim the balance out of the proceeds of the real estate.</p> <p>William Hufman contended that as there was an appraisement to the widow for a portion of' the exemption, and no claim or demand set forth in it for the balance out of the real estate, she could not claim under the distribution.</p> <p>The auditor was of the opinion that an appraisement should have been made of the real estate at the same time when the appraisement of the personal estate was made, or .that the demand for the balance of the $300 should have been inserted in the appraisement made to the widow * * * “ and is constrained to decide that the widow of this decedent cannot take as a distributee as against judgment-creditors without an appraisement.”</p> <p>He therefore distributed the balance, $707, in the hands of the administrators, after deducting the expenses of the audit, to William Hufman, the judgment-creditor.</p> <p>The widow filed exceptions to the report, which were overruled by the Orphans’ Court, Hagenman, P. J., and it was decreed that the balance on the-administration account, $707, should go to William Hufman.</p> <p>Margaret Hufman appealed to the Supreme Court, and assigned the decree for error,</p>

<p>Error to the Court of Common Pleas of Berks county: Of January Term 1876.</p> <p>This was an amicable action of assumpsit between Matilda Urich, late Staudt, and Samuel Merkel, commenced February 3d 1873, in which the following facts were agreed to by the parties in a case stated:—</p> <p>“ Jacob Staudt, late of Bern township, Berks county, by his will dated on the 23d day of December 1853, and proved on the 3d day of January 1854, devised as follows:—</p> <p>“ £Item. I give and bequeath unto my son, John Staudt, and to his heirs, all my large farm * * * containing three hundred acres, more or less, together with all the buildings and improvements, and grain seeded out and grass, and hay and straw and manure, and all timber and posts and rails, together with all the farming stock and the utensils belonging to the farm, unto the said John Staudt and to his heirs.’ ”</p> <p>In much the same terms he gave farms to his daughters Catharine, Sarah, Polly and Harriet; and further provided:—</p> <p>££ £ Item. I herewith make known and declare it as my will, that none of my aforesaid children shall have a .right to sell or assign their land or property to them bequeathed as aforesaid; neither shall they have a right to encumber it with debts or liens, but the lands shall remain free for their children or heirs; and they, .my said children, shall have the use, income and profits of the said land and farms during their lifetime. * * *</p> <p>££ £ Item. Whereas, I have ordained in this my will that none of my children shall have a right to sell, nor encumber, nor involve any of the real estate to them bequeathed; but I do hereby give either of my aforesaid children power, authority and the right to make a will and testament, to take effect after their decease, so that either of them, to wit, John, Catharine, Sarah, Polly and Harriet may and shall have privilege to dispose of their several legacies by will as aforesaid, but not otherwise.’</p> <p>“John Staudt died intestate in October 1869, leaving a widow, to wit, Matilda Staudt, the plaintiff in this suit, and issue five children * * * all of whom are minors, and have for their guardian Samuel Merkel, the defendant in this suit. Samuel Merkel, guardian, has collected the rents, issues and profits of the real estate devised to the said John Staudt as aforesaid, and claims the right to hold the same in trust for the minor children. The amount in his hands so received at the time the amicable action was entered, was $2011.47 ; one-third of which is claimed by the said Matilda Urich, late Matilda Staudt, as relict and widow of the said John Staudt, deceased, under the intestate laws of this Commonwealth, to wit, $670.49.</p> <p>“ If the court he of opinion that Matilda Staudt, widow as aforesaid, is so entitled, then judgment to be entered for the plaintiff: but if not, then judgment to be entered for the defendant.”</p> <p>Hagenman, P. J., delivered the opinion of the Court of Common Pleas.</p> <p>* * * “ The question then recurs, what interest or estate did Jacob Staudt intend to give to his son John ? By the first clause above mentioned, clearly a fee simple is given. The devise is to him and to his heirs. No stronger expression could be used to carry a fee. But this clause must be taken in connection with every part of the will. The two other clauses have direct reference to the same subject-matter. . Although a fee may be given in a former part of a will, it may be restrained by a subsequent clause so as to convert it into an inferior interest. Indeed a particular estate is more frequently given in this mode than in any other. Where a testator has given a fee, he cannot strip it of its nature and properties, that is, make a fee something else than that which the law recognises as such, but he may restrict the generality of his gift and devise to a less estate.</p> <p>“Apart from settled decisions, the Act of April 8th 1833, recognises this power of the testator. It provides that all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or perpetuity, unless it appears by words of limitation or otherwise in the will, that the testator intended to devise a less estate. What, then, was the intention of Jacob Staudt in introducing the above second clause in his will ? The first gave a fee, which is the highest interest that any one can have in lands. The second could give no more. Why, then, insert it, if it was not his intention to limit the estate ? He could have had no other object. He says : ‘ I herewith make known, and declare it as my will that none of my aforesaid children shall have the right to sell or assign their land or property to them bequeathed as aforesaid. Neither shall they have a right to encumber it with debts or liens, but the land shall remain free for their children ; and they, my said children, shall have the use, income and profit of the said land and farms during their lifetime.’ This will was written by a person who knew something of legal terms without understanding their legal import. It is obscure in many of its provisions, and phrases are jumbled together in an incongruous manner. But if we transpose this clause somewhat, we may more clearly get at the intention of the testator. Thus : I herewith make known and declare it as my will that my children shall have the use, income and profits of the said lands and farms, during their lifetime; none of them shall sell or assign, neither shall they have a right to encumber with debts or liens, but the lands shall remain free for their children or heirs. From this it is obvious that a limited estate was only intended to be given. This is made more manifest by the last clause in the will, which contains not only a power of appointment that was never exercised, but a reiteration in the most emphatic manner of such limited estate in the testator’s children. ‘ Whereas, I have ordained in this, my will, that none of my children shall have a right to sell, nor encumber, nor involve any of the real estate to them bequeathed, but I do hereby give either of my said children power, authority and right to make a will and testament to take effect after their decease, so that either of them, to wit: John, Catharine, Sarah, Polly and Harriet, may and shall have the privilege to dispose of their several legacies by will, but not otherwise.’</p> <p>• “ It seems clear to us that the testator intended to give only a life estate. We are strengthened in this view by reference to the other provisions of the will made a part of this case stated.</p> <p>“ A father was providing for a son and four daughters, two of whom were married. To each of his daughters by name he gave, a farm by separate clauses in his will, and used the same language, in the devise to them that was used in regard to the son. lie had a father’s solicitude for his daughters, and gave them an estate which he intended as a provision for their lives, and in case of their death his patrimony should descend to their children and not be enjoyed by their husbands, strangers to his blood. On behalf of the plaintiff it is claimed, that under the rule in Shelley’s case, John Staudt took a fee simple, and it matters nothing that the creation of a fee through the operations of this rule would defeat the intention of the testator. This position would probably be correct, if the cases of Williams v. Leech, 4 Casey 89 ; Naglee’s Appeal, 9 Id. 89; and McKee v. McKinley, Id. 92, had not been expressly overruled by Guthrie’s Appeal, 1 Wright 9.</p> <p>“ This last case recognises the right of the donor to control his gift. In Dodson v. Ball, 10 P. F. Smith 492, the present chief justice reviews the numerous conflicting decisions in our state upon this vexed question, and re-affirms the principle of Guthrie’s Appeal. In Naglee’s Appeal the will is very similar to the one under consideration, and in speaking of it and the other two cases above referred to, Chief Justice Agnew says that Judge Strong was clearly right; for, undoubtedly, upon the terms of the wills in those cases, the words were those of purchase and not of limitation. For the reasons here given, judgment is entered for the defendant with costs.”</p> <p>The plaintiff took a writ of error and assigned for error, the entering judgment for the defendant.</p>

<p>Error to the Court of Common Pleas of Schuylkill county: Of January Term 1876, No. 49.</p> <p>This was an action of ejectment for a tract of land in North Union township, containing 400 acres and allowance surveyed on a warrant to Matthew Smith granted June 13th 1793, adjoining John Dunlap, Robert Robe, John Davidson, Thomas Rees and George Langs. The writ was issued June 9th 1870 at the suit of Charles S. Coxe, Franklin Coxe and Tench 0. Coxe, against Jacob Breisch, William Michael, Stephen Michael, Benjamin Bitter, Henry Lebo and Cornelius Wagner.</p> <p>On the 21st of October 1875, Charlemagne Tower was added as plaintiff as the alienee of an interest in the land in dispute.</p> <p>The case was tried on the same day before Pershing, P. J.</p> <p>The plaintiffs gave in evidence the warrant and survey October 12th 1793, bounded and containing as above stated. This title became vested in Tench Coxe about March 1st 1794. On the 20th of March 1801, Tench Coxe made an assignment for the benefit of his creditors to Peter S. Duponceau and others; the other assignees conveyed to Peter S. Duponceau ; he conveyed to Charles S. Coxe upon the same trust. Tench Coxe died having made a will which was proved July 17th 1822; he appointed Charles S. Coxe and others the executors with power to sell and convey his land. On the 30th of May 1830 a patent for the land in dispute was.issued to Charles S. Coxe “in trust for the assignees of Tench Coxe, deceased.”</p> <p>This land was sold for taxes of 1820, and conveyed by the county treasurer to John Schall on the 30th of July 1822; Schall assigned to Charles S. Coxe on the 11th of August 1829; Coxe then held for the same trust as he had previously to the sale.</p> <p>By various devises and other conveyances of persons claiming under Tench Coxe, deceased, his title, as well as that under the tax sale, passed to the plaintiffs in this case.</p> <p>The plaintiffs gave evidence of assessments, which did not appear to include road tax, on this tract as unseated in the name of Smith from 1821 to 1830 inclusive ; and from 1831 to 1870 inclusive in the name of “ Charles S. Coxe, grantee in trust for the estate of Tench Coxe, deceased,” and of the payment of the taxes.</p> <p>Defendants gave in evidence assessments in Union township, viz.:—</p> <p>1850. —Matthias Smith, 400 acres, valuation $200, — 80 cents and 60 cents.</p> <p>1851. —Same.</p> <p>Also: “ Extract books.”</p> <p>400 acres, Matthias Smith. County tax of 1850, 80 cents.</p> <p>State tax, 60. Road tax, $1.20.</p> <p>1851. — County tax, 80 cents. State 60; total $4.00; sold for $5.50.</p> <p>Also: Treasurer’s sale book for 1852.</p> <p>Matthias Smith to Joseph S. Patterson, sold for $7.63.</p> <p>. Sale held in Pottsvilie, June 14th 1852.</p> <p>Treasurer’s deed, dated ,11th September 1852; assignment on deed, dated February 3d 1855, from Patterson to Franklin Stewart.</p> <p>Patterson’s title became vested in Jacob Breisch and William Michael, October 12th 1869.</p> <p>There was evidence that the tract assessed as “Matthias Smith” was the same as that assessed “Matthew Smith.”</p> <p>Also: Return of road tax for 1850, made by the supervisors of Union township.</p> <p>Matthias Smith 400 acres; valuation $200. Road tax $1.20. Returned and filed in the commissioners’ office, January 8th 1852; copy returned into the treasurer’s office, January 2d 1852.</p> <p>The supervisors of Union township testified that no road tax had been paid to them on the Matthias or Matthew Smith tract.</p> <p>The plaintiffs in rebuttal gave in evidence,</p> <p>“ An account of all taxes assessed and unpaid on the land mentioned below, situate in Union and Rush townships, in Schuylkill county, the property of Charles S. Coxe, Esq., trustee of the estate of Tench Ooxe, Esq., deceased.”</p> <p>This paper was for the taxes of 25 tracts; it wag arranged in columns headed respectively, “County,” “State,” “Road,” “ School,” for each of the years 1850 and 1851.</p> <p>One of the tracts contained in the paper was the Matthew Smith tract, opposite to it in each year in the county tax column was “80,” and in the state “60.” There was nothing in either the road or school column; the total carried out against this tract was $2.80.</p> <p>Against some of the tracts was charged road tax in each year, and against some .there was no such charge. The whole taxes footed up $230.17, including costs of advertising.</p> <p>At the end of the statement was a receipt as follows:—</p> <p>“ Received April 30th 1852, of Charles S. Coxe, Esq., trustee of the estate of Tench -Coxe, Esq., deceased, two hundred and thirty dollars and seventeen cents, in full for the taxes, interests, and costs upon the several tracts, part of tracts, and parcels of unseated land above mentioned, the property of the said Charles S. Coxe, Esq., trustee of the estate of Tench Cox, Esq., deceased, and that sum being all the taxes assessed and now due on the said unseated land with the interests and costs thereon.</p> <p>Gr. D. Boyer,</p> <p>Treasurer of Schuylkill county.”</p> <p>Also: “ An account of all taxes assessed and unpaid on the lands mentioned below, situate in Union, Rush and Mahanoy townships, Schuylkill county, the property of Charles S. Coxe, Esq., trustee of the estate of Tench Coxe, Esq., deceased.”</p> <p>This paper was for taxes on twenty-six tracts. For each of the years 1850 and 1851, there was one column only which was headed “ Road.” For the years 1852 and 1853, the columns were arranged as in the former paper — a number of the tracts were charged with road tax in some of the four years, and not in others.</p> <p>The Matthew Smith tract had no charge of road tax for 1850, but was charged with road tax for 1851, and county, state and road tax for the other two years. The aggregate of taxes carried out against this tract was $10.80. The total of charges for taxes, interest on state tax and advertising, as footed up on this paper, was $659.25.</p> <p>To this statement was a receipt, as follows:—</p> <p>“ Received 3d June 1854, of Charles S. Coxe, Esq., trustee of the estate of Tench Coxe, Esq., deceased, the sum of six hundred and fifty-nine dollars and twenty-five cents, in full for all the taxes upon the' several tracts, parts of tracts, and parcels of unseated land above mentioned, the property of the said Charles S. Coxe, trustee, as aforesaid, that sum being all the taxes assessed and now due on the said land with Tie interests and costs thereon.</p> <p>Isaac Ward, Treasurer.”</p> <p>Both receipts were duly acknowledged, but neither had been recorded, under the Act of March 9th 1847, § 1, Pamph. L. 279, 1 Br. Purd. 470, pi. 63.</p> <p>The defendants’ points were :—</p> <p>1. The tax sale of 1852 to Joseph S. Patterson is based on a regular assessment and sale of the land in suit. It appears, by the evidence of the defendant and that of the supervisors for Union township for 1850, that the road taxes for that year'were unpaid, and that Charles S. Coxe, having applied to the treasurer on the 30th of April 1852, and having paid the county and state taxes for 1850 and 1851, on land assessed to Charles S. Coxe, but not the road taxes, for the year 1850, he cannot take advantage. of any allegation that he was misled by the county treasurer in this suit, the same having been brought more than five years after the delivery of the treasurer’s deed to Patterson.</p> <p>2. Under all the evidence in this cause, the verdict of the jury must be for the defendant.</p> <p>3. Coxe paid but the state and county taxes, when in fact there were county, state and road taxes due. The records in the treasurer’s office were notice to Coxe, and he was not only presumed to know, but did, in'fact, have notice from the records that the road taxes were due, and from his own receipt that they were unpaid. Hence, if the jury believe that Coxe was not misled by the county treasurer, of which there is no positive evidence in this case, and neglected to pay the road tax, the defendant is entitled to a verdict. And this is so from the fact that the county.treasurer has no right to take less than the taxes due; and in such case it would be a fraud upon the county, and the receipt would not avail Coxe, who was a party to it, and which on its face showed that he had not paid the road taxes.</p> <p>The court charged:—</p> <p>* * * “ It appears that by some conveyances the title of this land was vested in Tench Coxe, and that a patent issued to Charles S. Coxe, in trust for the assignees of Tench Coxe, for the land in dispute. This was followed 'with an assessment of taxes for the years 1820 and 1821, and a treasurer’s sale to John Schall, in 1822. That was followed in 1829 by a transfer of Schall’s. title to Charles S. Coxe, thus putting the title to this land, as I understand it to.be conceded, in the same parties who held it prior to the tax sale. Then the plaintiffs produce assessments establishing payment of taxes from 1821 to 1870 inclusive — a period of almost fifty years. From 1831 to 1870, a period of nearly forty years, the land was assessed in the name of Charles S. Coxe, in trust for the heirs of Tench Coxe, deceased. This would show a title on the part of the plaintiffs, which would give them the right to recover, unless the defendants have shown a better title.</p> <p>“ The title on the part of the defendants is a tax title. It appears that in 1850 and 1851, this Matthew Smith tract was assessed for certain taxes, and that it was sold at treasurer’s sale to Joseph S. Patterson, and that his title was transferred to Franklin Stewart, and by him to Jacob Breisch. Mr. Breisch claims under this tax sale * * * It is alleged that as this is a junior tax sale, he has a right to retain the land under this tax title; and this raises the question in controversy here.</p> <p>“ On the part of the plaintiffs, this tax title of Mr. Breisch is met by receipt of the treasurer of the .county, in which it is shown that there is a full payment of all the taxes assessed on the-land of Charles S. Coxe, as the trustee of the Tench Coxe estate; and they claim that holding these receipts of the officer of the county for full payment of all the taxes, the sale of the land was invalid, and would vest no title in the purchasers. The first receipt is dated in 1852, April 30th. This is followed by a receipt from the county treasurer, in 1854, within the period allowed for the redemption of land sold for taxes, for six hundred and some dollars, which is also said to be ‘ all the taxes assessed and now due on the said land, with the interest and costs thereon’ — showing that Charles S. Coxe went to the office of the county, and, as it would appear from the evidence, was furnished by the treasurer of the county himself, all the taxes with the costs that were assessed upon the tract of land which he claimed to own. And it is held by the plaintiffs here that this is an effectual answer to the title set up by the defendant under the treasurer’s sale.</p> <p>“ There are other questions involved in this case, but we do not feel disposed to take up the time by discussing them. We have listened to the very able arguments of counsel in the case,' with an anxious desire to arrive at what was* the law which should govern us in giving instructions to you. [We are firmly impressed with the belief that these receipts are sufficient to sustain the position taken by the plaintiffs here; that the limitation of five years, found in the Act of 1804, would not apply to the facts of this case.] [We therefore instruct you that, under the evidence in this case, your verdict should be for the plaintiffs.”]</p> <p>The verdict was for the plaintiffs.</p> <p>The defendants took a writ of error; they assigned for error,</p> <p>1, 2. The parts of the charge in brackets.</p> <p>3, 4, 5. declining to affirm defendants’ points.</p>

<p>Certiorari to the Court of Quarter Sessions of Schuylkill county: No. 160, to July Term 1875: At the instance of Schuylkill county: In the matter of the widening of Norwegian street, in Pottsville.</p> <p>On the 4th of May 1874, a number of citizens of Schuylkill county petitioned the Court of Quarter Sessions of .that county for the appointment of viewers to “report upon the necessity of widening” Norwegian street between Sixth and Wood streets.</p> <p>By the Act of 2d day of April 1872, Pamph. L. 723, “all petitions to the Court of Quarter Sessions of Schuylkill county, for the appointment of viewers to lay out or vacate any street,' alley or lane in the borough of Pottsville, shall be first submitted to the town council of the said borough of Pottsville, for approval; and no viewers shall hereafter be appointed by the said court, or by any court, upon any petition which shall not be so approved by the said town council of the borough of Pottsville. All acts or parts of acts inconsistent with this act are hereby repealed.”</p> <p>There was no evidence that the petition had been submitted to the town council of Pottsville and approved by them.</p> <p>The court appointed viewers, in accordance with the prayer of the petition.</p> <p>The order required the viewers to give public notice by three or' more advertisements, put up at least ten days before the time of meeting, in the vicinity of the place to be viewed, &c. Notice was given by advertisements, in accordance with the order, and a copy of the notice was served on the supervisor, town clerk, auditors and president of the town council of the borough of Potts-ville. All these officers acknowledged, in writing on the notice, their acceptance of service.</p> <p>The viewers reported that they had widened Norwegian street between the points designated, to the width of thirty-seven feet six inches. They also assessed damages to a very large number of property owners along the line of the street. The damages amounted in the aggregate to fit,740. The report was filed June 22d 1874, and confirmed nisi June 23d 1874.</p> <p>Exceptions were filed August 18th 1874,-by E. W. Bechtel, solicitor for the county commissioners, three of which were:—</p> <p>1. The petition praying for the appointment of viewers was not presented to the town council for approval.</p> <p>2. The Court of Quarter Sessions has no jurisdiction to appoint viewers to lay out streets in the borough of Pottsville.</p> <p>4. The court failed to fix the width of the proposed road at the time of confirming the report of the vietvers nisi.</p> <p>On. the 27th of March 1875, Walker, J., delivered the opinion of the Court of Quarter Sessions on the exceptions, saying, amongst other things, on the first- exception,</p> <p>* * * “ The Act of 2d April 1872 requires the petition for viewers to he first presented to the town council for their approval. Whether this was done does not appear in evidence; but the record shows that notice of the time and place of the meeting of the viewers was served more than ten days previously upon the town council, supervisor, town clerk and auditors of the borough, and accepted in writing by them. This acceptance of the notice may be considered as a waiver of their privilege to approve first of the petition, especially as they appear before us through their solicitor, and ask for the confirmation of the report. Their objection, therefore, does not lie in the mouth of a stranger to make.” * * *</p> <p>And as to the 4th exception he said,</p> <p>“ The remaining exception is, that the width of the street was not fixed by the court.</p> <p>“ This is an irregularity which will prevent the final confirmation .of the report, unless another term (after the width is directed) be given to file exceptions or ask for a review. This report cannot now be confirmed, for it would he error, and if removed into the Supreme Court, that court would remand the record to us to fix the width and allow the time until the next term to file exceptions or ask for a review.</p> <p>“ The exceptions are therefore overruled, and the following order is made :—</p> <p>“ And now, March 22d 1875, the exceptions filed in this case are overruled, and the court direct the breadth of Norwegian street to be thirty-seven feet and six inches from Sixth street to Twelfth street, in the borough of Pottsville, and approve of the same, and the assessment of the damages.</p> <p>“ And the court do further order and direct that these proceedings be not entered of record, nor the street (of the width aforesaid) be taken, deemed or allowed, to be a public highway, until the next term of the court hereafter, in order to allow time to any one aggrieved to file exceptions to the confirmation of this report, or to ask for a review, under the provisions of the Acts of Assembly relative thereto.”</p> <p>On the 3d of May 1875 the county commissioners filed the following exception:—</p> <p>The damages are excessive, and the public interests will not be subserved by the confirmation of the report, and the payment of the damages.</p> <p>August 2d 1875, “The court confirm the report of viewers absolutely, and direct an order to issue to the supervisor of the borough of Pottsville, for the opening of said street, according to said report.”</p> <p>The errors assigned by Schuylkill county in the Supr'eme Court were that.the Court of Quarter Sessions overruled the exceptions, and made the order of August 2d 1875.</p>

54. This was an action of ejectment commenced May 7th 1872, by William Neval and Maria, his wife, for her use, against Mary Ann Gisaf and another, for a house and lot on Penn street in the city . of .Reading., The premises had belonged to E. G. Fishburn, who on the 1st October 1868 conveyed them to Mary Ann Gisaf, who was then a minor. On the 25th of March 18.71, a judgment was recovered against William Neval on a note dated December 5th 1870.

<p>Error to the Court of Common Pleas of Bradford county: Of July Term 1874, No. 76.</p> <p>This was an action of ejectment, brought November 4th 1871, by Mahlon 0. Moody against Abram Snell, and others, for a tract of 160 acres of land in Ulster township.</p> <p>The land in question had belonged to Lockwood Smith, Sen. The question in the ease arose under his will, dated February 14th 1827, proved January 12th 1832, and containing amongst other things, as follows :—</p> <p>“First, I give unto my beloved wife, Rachel Smith, one-third of my estate, real and personal, so long as she shall remain my widow. I also do give and bequeath unto my beloved son, Lockwood Smith, Jr., and to his lawful heirs, one equal half part of my farm lying and being in the township of Ulster, and being the same which the said Lockwood Smith, now lives on, together with the appertenances ; but in case the said Lockwood should die without any lawful heirs, then the said property to revert back and be equally divided among my children, who shall or may survive him, except the one equal third part of said property, which shall belong to his widow so long as she shall continue as such. I also give and bequeath unto my beloved son, Platt Smith, the one equal half part of the farm on which I now live, situated as aforesaid, and to his lawful heirs, together with the appertenances, subject to the same conditions made respecting my son Lockwood; that is, should the said Platt die without any lawful heirs, then it shall revert back and be equally divided among my children who shall or may survive him, except the .one equal third part of said property, which his widow shall inherit so long as she shall remain as such.” * * *</p> <p>These provisions were followed by a number of small pecuniary legacies, to be paid by his executors to his daughter respectively, in one year from his death; but there was no residuary clause.</p> <p>On the 4th of November 1845, Lockwood Smith, the devisee, by deed of that date, for the purpose of barring the entail, duly acknowledged and recorded, &c., conveyed the premises to John C. Adams. Previously to bringing this suit, the title of Adams was vested in the defendants.</p> <p>Lockwood Smith, the devisee, and his wife died in 1856, without t children.</p> <p>The surviving children of the testator conveyed their interest in the land to the plaintiffs in the suit, September 16th 1871.</p> <p>The question was whether Lockwood Smith, the devisee, took an estate in fee with an executory devise over to the surviving children of the testator, or an estate tail which was barred by his deed to Adams.</p> <p>The court, Morrow, P. J., charged that the estate of Lockwood Smith, Jr., in the land in controversy under his father’s will, was an estate tail, which was barred by the deed from Lockwood Smith, Jr. to John C. Adams, dated November 4th 1845, and that under all the evidence in the case, the verdict of the jury must be for the defendants. ■'</p> <p>The verdict was for the defendants.</p> <p>The plaintiffs took a writ of error, and assigned this instruction for error. •</p>

<p>1. Where a payment is made voluntarily, on an unfounded demand, or in ignorance of the law or legal circumstances of the case, it cannot he recovered back.</p> <p>2. Nothing occurring afterwards in the determination of new controversies between other parties, can be carried back to affect a transaction, which when it took place, was fair and just.</p> <p>3. Finnel held three judgments against Brew, who paid fifty dollars on them. Before an auditor, distributing the proceeds of a sheriff’s sale of Brew’s land, Finnel claimed and there was awarded to him the whole amount of the judgments; the fund did. not reach to pay all the liens, the report vras confirmed. Meld, that if Finnel could not eonscionably retain the fifty dollars, Brew could not recover, the retention being _ to the prejudice of the unpaid lien creditor.</p> <p>4. Brew’s interest, in the proper application of the fund to the liens against him, did not entitle him to the fifty dollars, nor authorize him to control it.</p> <p>5. The auditor’s report and its confirmation were conclusive against Brew’s claim.</p> <p>6. A decree, awarding money paid into court, is conclusive that the party to whom the fund is awarded is entitled to it.</p> <p>7 No matter, that can properly be litigated before an auditor to distribute a fund in court, can be examined in a collateral action.</p>

<p>1. The D. railroad company, by agreement, had a right of trackage on the tracks — two running parallel at a distance of seven feet from each other— of the B. company. The plaintiff was a brakeman of the B. company ; his train passed from one track to the other, and in the performance of his duty he left the train and closed the switch, the train passing on some distance into the yard without him. He stopped a few minutes and walked along the track to go to his train, which he might have reached in some other way; whilst so on the track he was struck by an engine of the D. company, going in the same direction, and injured. Held, that he had no right to be on the track ; that being there was contributory negligence per se, and he could not recover from the D. company for the injury.</p> <p>2. Where a person goes on a track, he cannot recover from'the company except for wanton injury, although the negligence of the company’s agent contributed to the result.</p> <p>3. Except at crossings, where the public have a right of way, one who steps on a track does so at his peril.</p> <p>4. The employees of the company whose duty requires them to go on the track, if injured, have no redress against the company; they take the risk upon undertaking the employment.</p> <p>5. Whilst passing from one point of the road to another, the plaintiff had no higher protection than a stranger.</p> <p>6. The plaintiff was, within the meaning of the-Act of April 4th 1868, an employee lawfully engaged about the roads, &c., of the D'. company, and therefore entitled only to such right of action as if he had been aii employee of the D. company.</p>

<p>1. S. and II., partners in a bakery, owned real estate which was used for partnership purposes ; they sold one-third of the interest in the firm to B., and afterwards conveyed to him one-third of the real estate. W. afterwards entered a judgment against B. S. died, and in proceedings in' equity by his administrators, against II. and B. as surviving partners, an account was decreed and a receiver appointed ; he petitioned the court, showing that the personal property was not sufficient to pay the debts, and asking for an order to sell the real estate, which was made, describing it as the property “ of the late firm of S., II. & B.under it the real estate was sold to 1?. Under W.’s judgment B.’s interest in the real estate was sold by the sheriff to W., the jury found that it was not partnership property. Held, that the sale by the receiver did not pass B.’s separate interest in the real estate discharged of W.’s judgment, but that he took that interest under the sheriff’s sale.</p> <p>2. On a judgment at law against a partnership for a firm debt on'a decree in equity for the payment of money, the separate property of each partner may be sold and the purchaser will take a title clear of the lien of judgments.</p> <p>3. As to the members of the firm — they being parties to the bill — the decree was conclusive that the real estate was partnership property; and the sale would pass whatever interest each had in it.</p> <p>4. The decree would not bind an adverse title nor would the title of one not a party to the proceeding be divested by the receiver’s sale.</p> <p>5. A recorded agreement by B. that his interest in the real estate was partnership property, would have affected only subsequent creditors; after the entry of thejudgment, he could not change the character of the real estate so as to affect the lien.</p> <p>6. For all partnership purposes, (except conveyance under the Statute of Frauds) making the real estate partnership property, changed it to personalty.</p> <p>7. As to all persons not parties to the proceedings in equity and not bound by the decree it remained an open question whether the real estate sold by the receiver was the property of S., H. & B.</p> <p>8. It is the equity which each partner has to have the partnership assets applied first to partnership debts that he may be relieved from individual liability, which gives partnership creditors priority of payment.</p> <p>9. W. would have had no right to participate in the fund raised from the receiver’s sale : it must have gone to the payment of firm debts.</p>

<p>Error to the Mayor’s Court of the city of Scranton: Of January Term 1875, No. 169.</p> <p>This was a scire facias sur mechanics’ lien, issued August 4th 1873 by George Saum and Conrad Schrader, against “Mrs. A. Schriffer and Charles Schriffer, owners or reputed owners and contractors.” THe lien had been filed on the same day the scire facias issued. It was as follows :—</p> <p>“ George Saum and Conrad Schrader file this their claim for the payment of the sum of $865.25 and interest, as per bill hereto attached, * * * against all that double wood, stone, brick and slate dwelling-house, &c., * * * the said sum of $865.25 being a debt contracted for labor, viz.: carpenter, work, &c., * * * and for materials, viz.: lumber, &c., * * * done and furnished by the said George Saum and Conrad Schrader, in part, by virtue of a written contract now'in possession of the above-named defendants (but a synopsis of which is hereunto attached as a part hereof), and in part by virtue of verbal agreements within six months last past, for and about the erection of said building, and on the credit thereof, of which the said A. Schriffer and Charles Schriffer were, and are, the owners or reputed owners, and the said George Saum and Conrad Schrader, the builders and contractors for the said A. Schriffer and Charles Schriffer, and at whose instance and request the said work was done and materials furnished as aforesaid for said building.” * * *</p> <p>“ Synopsis of written contract of Mrs. A. Schriffer and Charles Schriffer with George Saum and Conrad Schrader:—</p> <p>“ Said contract is dated in or about the month of September or October 1872, and is for the materials for and the erection and construction by said Saum and Schrader of a double dwelling-house of stone, brick, wood, lime, sand, slate, paint, hardware, &e., situation on eastern side of Madison avenue, near Mulberry street, in the city of Scranton. Size sixty-six by forty feet, with finished basement, first, second and attic stories and Mansard roof, windows, doors, fastening materials, painting, stairways, halls, &e., as more fully set out and described in specifications hereto attached. Consideration, $5000 ; terms, $1500 when the basement walls were up ; $1500 when the house was under roof, and $2050 when the house was completed. /</p> <p>[Signed] George Saum,</p> <p>Conrad Schrader,</p> <p>A. Schrieeer,</p> <p>Charles Schrieeer.”</p> <p>The work was completed April 26th 1873.</p> <p>On the 19th of August 1873, the defendants filed an affidavit of defence, admitting that the sum of $500 was due by them and tendering judgment for that amount.</p> <p>On the 22d of .December 1873 the defendants pleaded nil debet, payment with leave and set-off.</p> <p>On September 4th 1874, on motion of plaintiffs, the court permitted the record to be amended so that the defendants in the lien be stated as “ Mrs. A. Schriffer and Charles Schriffer, her husband, owners,” &c., and that all the pleadings be amended accordingly.</p> <p>On the 23d of January 1875, on motion of plaintiffs, the record was amended by striking out the name of Charles Schriffer wherever it appeared in the record.</p> <p>The case was tried January 23d 1875, before Ward, Recorder of the Mayor’s Court.</p> <p>The plaintiffs, under objection and exception, gave in evidence a contract under seal dated August — 1872 between Mrs. Schriffer alone of the first part and the plaintiffs of the second part for the erection of the building mentioned in the claim; it was signed by Mrs. Schriffer and the plaintiffs. They also gave evidence of the performance of the work.</p> <p>The defendants gave evidence that the house was not well built, nor in accordance with the contract, &c.</p> <p>The verdict was for the plaintiffs for $862.02.</p> <p>The defendant took a writ of error and assigned for error,</p> <p>1. Permitting the lien to be amended by adding the words “her husband and contractor,” and striking out the name of Charles Schriffer.</p> <p>2. Admitting in evidence a contract under seal, signed by A. Schriffer ; the contract being made by a married woman.</p> <p>3. Entering judgment against Mrs. A. Schriffer in this case.</p>

<p>Certiorari to the Court of Quarter Sessions of Luzerne county: No. 20, of July Term 1875; at the instance of the Commonwealth.</p> <p>The following indictment was found in the Court of Quarter Sessions for the county of Luzerne, at April sessions 1875:—</p> <p>“ The grand inquest, &c., * * * * * do present:</p> <p>That F. A. Beamish, yeoman, of said county, on the thirty-first day of May, A. D. eighteen hundred and seventy-three, at, &c. * * * * being a director of the fourth school district of the said city of Scranton, a body corporate then and there duly and legally organized and existing, under and by virtue of the laws of the said Commonwealth, and also an officer of the same, to wit: the secretary of the board of directors of the said body corporate, did, with intent to defraud, alter, mutilate and falsify a certain book and writing, commonly known as the duplicate of the taxes levied for the use of the said school district, for the year ending on the thirty-first day of May, A. D. eighteen hundred and seventy-three, or thereabouts; it being a book and writing belonging to the said fourth school district of the said city of Scranton, a body corporate as aforesaid; contrary to the form of Act of Assembly in such case made-and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.”</p> <p>~On the 27th April 1875, the defendant moved to quash the indictment, “ for the reason, that’said indictment sets forth no indictable or legal offence as committed by the defendant; for the reason that the fourth school district of the city of Scranton, of which the defendant is alleged was a director, is not such a body corporate or public company as is contemplated by section 118 of the Act of 31st March 1860, under which the indictment is found.”</p> <p>The court quashed the indictment.</p> <p>This was assigned for error, on the removal of the record to the Supreme Court by the Commonwealth.</p> <p>The Act of March 31st 1860 (Griminal Code), sect. 118, Pamph. L. 410, 1 Br. Purd. 349, pi. 171, is as follow's:—</p> <p>“ If any director, manager, officer or member of any bank, or other body corporate or public company, shall, with intent to defraud, destroy, alter, mutilate or falsify any of the books, papers, writings or securities belonging to the bank, body corporate or public company of which he is a director, manager, officer or member, or shall make or concur in the making of any'false entry, or any material omission in any book of accounts or other document, he sl^all be guilty of a misdemeanor.”</p>

162. This was an amicable action and ease stated in which Mary Mull, administrator, &c., of Reuben Mull, deceased, was plaintiff, and Henry Mull and Thomas Mull, executors, &c., 'of Thomas Mull, deceased, were defendants. The action was entered March 16th 1876.

<p>Error to the Court of Common Pleas of Wayne county: Of January Term 1875, No. 238.</p> <p>This was an amicable action 'and ease stated, in which the borough of Waymart was plaintiff and Hubbel Rounds defendant. It was entered in the court beldw to February Term 1874.</p> <p>The facts set out in the case were as follows-</p> <p>“ Hubbel Rounds, the defendant, was a volunteer in the war of the rebellion, having enlisted * * * September 10th 1862, and continued in the service until the close of the war, July 1865. Rounds resides in the borough of Waymart. * * * He is assessed for personal property and real estate, and previous to the year 1873 had not been assessed, either on his real or personal property, with any bounty tax in said borough, by virtue of the provisions of the 4th section of the Act of March 25th 1864, Pamph. L. 86, viz.: ‘All assessments heretofore made of taxes for the purpose of paying bounties, as aforesaid, be and the same are hereby legalized and made valid : Provided, that the property of non-commissioned officers and privates, in actual service in the United States army and navy, from this .Comihonwealth, or who died, or were permanently disabled in such service, or having been in such service for the space of one year and six months, were honorably discharged therefrom,’ &c., ‘shall be exempted from any taxation under the provisions of this act.’</p> <p>“Bounty bonds were issued by said borough of Waymart, in March 1864, for the payment of which a tax has been levied against said Rounds for the year 1873, for which the borough claims to collect from him the sum of $6.72, which assessment is made both' on his real and personal property. Rounds was honorably discharged from said service after having remained therein for over one year and six months.”</p> <p>By the 1st section of the Act of April 8th 1873, Pamph. L. 64, Br. Purd. Sup. 1820, pi. 1, “ all real estate within this Commonwealth shall be liable to taxation for all such purposes as now are or hereafter may be provided by general laws, excepting only therefrom the classes of property specifically exempted from taxation;” and then naming the various kinds of property specifically, among which soldiers are not mentioned, nor the Act of March 25th 1864: “ and all laws or parts of laws inconsistent with the provisions of this statute, be and the same are hereby repealed.”</p> <p>The questions submitted to the court are: Does the Act of April 8th 1873 repeal the Acts of March 25th 1864, March 15th 1865, and March 30th 1866, as regards exemptions, and is the * * * defendant, Rounds, liable to pay the bounty tax as assessed against him, to wit, on his real and personal estate ? If the court should be of opinion that he is liable, then judgment be entered against the defendant, on the case stated, for the amount of the tax for which he is so liable on his real estate. But if the court are of opinion that he is not so liable, then judgment to be entered in favor of defendant.</p> <p>The court (Dreher, P. J.), in delivering the opinion of the court, said:—</p> <p>* * * “ This Act of April 8th 1873 is so plain and unambiguous that it needs no interpretation. It interprets itself. ‘ All real estate within this Commonwealth shall be liable to taxation for all such purposes as now is or may be provided by general laws;’ ‘ and all laws .or parts of laws inconsistent with the provisions of this statute be and the same are hereby repealed.’ The act excepts certain classes of property, but the property of persons who have been in the military service of the United States is not excepted. As bounty taxes are assessed, levied and collected by a general law, they clearly come within the provisions of this statute. The property of such persons was, by the prior acts authorizing taxation for payment of bounties, excepted from such tax; but those acts, so far as they exempted real estate, are repealed by the express language of the Act of 1873, that ‘ all laws or parts of laws inconsistent with the provisions of this statute be and the same are hereby repealed.’ The personal property of the defendant remains exempted from bounty tax, and therefore the tax assessed in this case on personal property is illegal, but the tax on real estate is legal. Let the judgment, therefore, be entered in the case stated in favor of plaintiff and against the defendant for the sum of $5.72, the amount of tax on defendant’s real estate, with costs.” * -* *</p> <p>Judgment was accordingly entered against defendant for $5.72. He took this writ of error, and assigned for error the entering of this judgment.</p>

<p>Error to the Mayor’s Court of the city of Scranton: Of January. Term 1876, No. 87.</p> <p>This was an attachment execution in which G. A, and I. F. Fuller were plaintiffs, PI. Krause, defendant, and the Lehigh Valley Insurance Company garnishees.</p> <p>The plaintiffs, having a judgment against the defendant, issued an attachment execution in which the Lehigh Insurance Company were garnishees.</p> <p>The return of the 'marshal of Scranton to the writ was: — •</p> <p>“ Attached, as within commanded, by giving a true and attested copy of the within writ November 25th 1872, at 6.30 p. m., to C. Soellner, agent Lehigh Valley Insurance Company, and by summoning Mm as garnishee, and by making known to him the contents thereof, and same time by like copy to Henry Krause, the within named defendant, and by making known to him the contents thereof.”</p> <p>A judgment was taken by the garnishees by default for want of an appearance for $351.44, and an execution issued against the garnishees April 15th 1875.</p> <p>On the 24th of May 1875, a rule was taken to show cause why the judgment should not be opened and the garnishees let into a defence, &c'. •</p> <p>The affidavit on which the rule was granted averred that the agent, Soellner, had never been served with the writ, &e.; that, at the time the writ purported to have, been served, he was not agent for the company.</p> <p>Evidence was taken by depositions to establish the averments of ’ the affidavit. The rule was discharged.</p> <p>By the Act of May 4th 1852, sect. 1, Pamph. L. 574, 1 Br. Purd. 43, pi. 7, “ When any person or persons, being residents of this Commonwealth, shall engage in business in any other county than the one in which he, she or they shall reside, and not being in the county at the time of issuing such writ or process, it shall be lawful for the officer charged with the service thereof, to serve any writ of summons or any other mesne process upon the agent or clerk of any such defendant, at the usual place of business or residence of such agent or clerk, and to have the same effect as if served upon the principal personally.”</p> <p>The garnishees removed the record to the Supreme Court by writ of error, and assigned amongst others the following errors:—</p> <p>3. Because there was no service upon the garnishees or a proper officer of the company.</p> <p>4. Because the marshal’s return does not show a service upon the garnishees, and does not set forth what property, rights or credits of II. Krause were attached in the hands of the Lehigh Valley Insurance Company.</p> <p>5. Because the garnishees are not a corporation within the city of Scranton, and therefore beyond the jurisdiction of the mayor’s court.</p> <p>8. Discharging the rule</p>

61. This Avas an action of ejectment, brought September 26th 1872 by William Fogg against Thomas Grosvenor and Stephen Cook, for an undivided fourth part of a tract of land in Scott township.

201. In the distribution of the proceeds of the sheriff’s sale of Henry F. Hughes’s land.

<p>Error to the Court of Common Pleas of Bradford county: Of January Term 1876, No. 132.</p> <p>On the 11th of May 1868, judgment was entered in the Court of Common Pleas in favor of William Harrington, to the use of William Cook, against Elizabeth B. Gable and Ferdinand Gable, on the following note, &c.:—</p> <p>“April 1st 1868.</p> <p>“ Six years after date, for value received, we promise to pay William Harrington, or bearer, seven hundred and sixty-two dollars and twenty-four cents, payable as follows: * * * with interest, and without defalcation, waiving stay of execution, right of , appeal, errors, inquisition and exemption laws, prior to this date. And we hereby authorize the prothonotary or an attorney of any court of record in Pennsylvania,.or, elsewhere, to confess judgment against us for the above sum,'interest and costs, and costs of entering judgment on this note. Witness our hands and seals this fifth day of April, one thousand eight hundred and sixty-seven.</p> <p>Elizabeth B. Gable [seal].</p> <p>Ferdinand Gable [seal].”</p> <p>“Witness present: I. S. Parker [seal].”</p> <p>On the 9th of May 1873, a scire'facias was issued on this judgment, viz.: “William Harrington,'to the use of William Cook, against Elizabeth B. Gable arid Ferdinand B. Gable — Ferdinand Gable now deceased — H. S. Gable and Elizabeth B. Gable, administrators of Ferdinand Gable’s estate.” " Judgment was taken December 8th 1873 by default for'want of a:plea and affidavit of defence against Elizabeth B. Gable for $900.85.</p> <p>On the 11th of December 1873 an affidavit of Henry S. Gable, the son of Mrs. Gable, was filed, setting out, amongst other things,</p> <p>“ that at the time of giving said note and the entry of judgment on the same, the said Elizabeth was the wife of Ferdinand Gable; that he is informed by his mother and believes that she never signed said note or authorized any'person to sign for her,” &c.</p> <p>On this affidavit a rule, was granted to show cause why the judgment should not be opened and'Mrs. Gable let into a defence. The rule was made absolute February 7th 1874. By agreement of parties the case was put at issue, “ the' note to stand as a declaration in the case and defendant pleads payment with leave,” &c. The plea of payment was afterwards withdrawn and defendants pleaded “ non-assumpsit.” ■</p> <p>The case was tried December 14th 1875, before Ingham, P. J., of the 44th district.</p> <p>1. The plaintiff offered the note and record of entry in evidence without proof of its execution, it “ being the note agreed upon in the issue framed to stand as the declaration in the issue.”</p> <p>The offer was objected to by the defendants, rejected by the court and a bill of exceptions sealed.</p> <p>Plaintiff then called Isaac S. Parker, the subscribing witness, who testified that Mrs. Gable’s name was not to the note when he subscribed it. Harrington wanted witness “ to put his name there, for he had to have a witness ;” witness did not want to sign it, it might make him some trouble. Mr. Gable said it would make him no trouble, he had been buying a piece of land, he was to take the note home and have his wife sign it; neither Gable’s name nor his wife’s were to the note; witness saw Gable put his name on the stamps ; Harrington had the paper the first time witness had seen it; Harrington and Gable came down stairs together. Witness never saw the note afterward till the time they took de- - positions on the rule.</p> <p>Betsey Strope testified that she had a conversation with Mrs. Gable about a land transaction with Harrington; she said she did not sign the note, she never put her name but to one paper, she did not say what paper she signed, but it was to Harrington. She afterwards said she did not sign the note, but another paper, which she described.</p> <p>George Strope, who was present' at the conversation mentioned by the preceding witness, testified to the same circumstances.</p> <p>Jane Decker testified that Mrs". Gable told her that she and her husband had bought land from Harrington and given him their obligation for it, and that the deed for the land was made to her.</p> <p>J. B. Perry testified that he heard Mr. and Mrs. Gable talking about land they had purchased; she said she was sorry they had bought the land; if she had not been foolish she would not have signed the paper.</p> <p>Cook, the use plaintiff, testified that Mrs. Gable paid him sums of money on the judgment at three different times; she wished him to be easy; she could not pay it as fast as it fell due; she would pay what she could; this was in the life of Mr. Gable ; she said she did not sign the note, but intended to pay it; she signed but one paper; thought it was a deed or contract.</p> <p>Harrington testified that he never had any other paper signed by Mr. and Mrs. Gable except the note.</p> <p>2. Plaintiff offered to prove that Mrs. Gable, prior to the date of the note, bargained with Harrington for a piece of land, and agreed to give her' note to secure the purchase price of the land; that in pursuance of this agreement Harrington executed a deed for the land and delivered the same to Elizabeth B. Gable; that she accepted the deed, and is now in possession of the land for which she agreed to give her note; that at the time the deed was delivered, the note in suit was delivered to witness signed by-Elizabeth B. Gable, or with her name on said note.</p> <p>The defendants objected to the offer, it was rejected by the court and a bill of exceptions sealed.</p> <p>3. The plaintiff offered to prove that the husband of defendant delivered the note in suit to the plaintiff as executed, and that defendant subsequently called with her husband on plaintiff and paid $100 on said note.</p> <p>The offer was objected to by the defendants, rejected by the court and a bill of exceptions sealed.</p> <p>4. The plaintiff, after having given the foregoing evidence, again offered the note; it was objected to by the defendants, rejected by the court and a bill of exceptions sealed.</p> <p>The plaintiff rested. The defendant offered no evidence.</p> <p>The verdict was for the defendant.</p> <p>The plaintiff took a writ of error and in several specifications assigned for error the rejection of his offers of evidence.</p>

<p>• Error to the Court of Common Pleas of Wyoming county: Of January Term 1876, No. 179.</p> <p>On the 24th of August 1874, Charles D. Wilson brought an action of assumpsit against James-Kelly.</p> <p>On the 2d of February 1875, the plaintiff entered a rule of reference and on the 5th of March the arbitrators chosen under the rule awarded for the plaintiff the sum of $60. On the same day the plaintiff appealed from the award and entered into recognisance as required by law, but the record did not show that he had made the required affidavit. On the 23d of August 1875, the defendant pleaded “ non-assumpsit.” On the 22d of November depositions were taken and the case was noted on the same day for trial; on November 23d it was continued at the costs of the defendant. On the 26th of November 1875, a rule was granted on the plaintiff to show cause why the appeal should not be stricken off. On the 27th of November the rule was made absolute and the appeal was stricken off.</p> <p>The terms of court in Wyoming county commence on the third Mondays in April, August and November.</p> <p>The plaintiff took a writ of error and assigned the striking off of his appeal, for error.</p>

<p>1. Every court of record has at common law power of amendment; it does not depend upon statute.</p> <p>2. Under the statutes of amendment, it is of right; at common law it is discretionary.</p> <p>3. The general power of amendment exists both before and after judgment.</p> <p>4. A petition for viewers for damages was presented under the Act of February 19th 1849 (Railroad Act): upon exceptions to their report the proceedings were set aside and. the applicants permitted to file an “ amended petitionReid, this was not a distinct petition, but an amendment to the original petition.</p> <p>5. In the trial of an issue on an appeal from the assessment of railroad damages, Reid, to be proper to ask “ what was the fair market value of this farm immediately after the construct!on and successful operation of this road on it only by such construction.”</p> <p>6. Market value of land is not a question of science or skill upon which only an expert can give an opinion.</p> <p>7. Persons of the neighborhood are presumed to have sufficient knowledge of the market value of the land.</p> <p>8. A company made a canal through the plaintiff’s land, they afterwards made a railroad through the same land ; the fact that the canal was a cheap and sufficient means of conveying his products, was material in the assessment of damages; that the defendants owned and might abandon the canal did not vary the case.</p> <p>9. It was immaterial what damages the plaintiff received from defendants for the construction of the canal.</p> <p>10. It was proper to ask: “ How much, if any, does the burden of fencing the railroad detract from the value of the farm ?”</p> <p>11. The fact that after the construction of the railroad, a post-office was moved to a point on it much more convenient to the plaintiff, was not material in assessing damages.</p> <p>12. Evidence of the prices at which land in the neighborhood had been recently sold was inadmissible.</p> <p>13. In his first petition the plaintiff averred that he had sustained damages to the amount of $3000 ; in his amended petition he set out no particular amount: Reid, that this was persuasive evidence as to the amount of the damages, but did not estop him from claiming more.</p>

<p>Error to the Court of Quarter Sessions of Luzerne county: Of January Term 1876, No. 250.</p> <p>At the September Term 1875 of the Court of Quarter Sessions of Luzerne county, an indictment was found on the 10th of September, the first count of which charged: that David Gise “did unlawfully and wilfully have two wives at one and the same time.”</p> <p>The second count charged that Gise, “ on the first day of January, A. D. one thousand eight hundred and fifty-five, did marry one Harriet Fisher, and he the said Harriet then and there had for a wife, and the said David Gise afterwards, and while he was so married to the said Harriet as aforesaid, on the twenty-fourth of May, A. D. one thousand eight hundred and sixty-eight, unlawfully did marry and take to wife one Jemima Davis, and to her the said Jemima was then and there married; the said Harriet, his former wife, being then alive,” &c.</p> <p>The Act of March 31st 1860 (Criminal Code), sect. 34, Pamph. L. 392, 1 Br. Purd. 324, pi. 49, enacts, “ If any person shall have two wives or two husbands at one and the same time, he or she shall be guilty of a misdemeanor,” &c.</p> <p>The defendant pleaded “Not Guilty,” and the Statute of Limitations.</p> <p>The Act of March 31st 1860 (Criminal Procedure), sect. 77, Panaph. L. 445, 1 Br. Purd. 394, pi. 79, provides that, “All indictments which shall hereafter be brought or exhibited for any crime or misdemeanor — murder and voluntary manslaughter excepted — shall be brought or exhibited within the time and limitation hereafter expressed and not after; that is to say, all indictments and prosecutions * * * for all misdemeanors, perjury excepted, shall be brought and exhibited within two years after such * * * misdemeanor shall have been committed.”</p> <p>The indictment was tried November 29th 1875, before Harding, P. J.</p> <p>The evidence of the Commonwealth was that Grise married Harriet Fisher on the 10th of June 1852, and lived with her several years; he afterwards left her, and on the 24tli of May 1868, married Jemima Davis, Harriet being in full life.</p> <p>The defendant offered no evidence.</p> <p>The court charged :—</p> <p>“ * * * Bigamy as defined by text writers, is ‘ the state of a man who has two wives, or a woman who has two husbands living at the same time.’ The Pennsylvania statute has in view just that ‘state’ of a man or woman, as the case may be, and provides concerning it thus: ‘ If any person shall have two wives or tw.o husbands at one and the same time, he or she shall be guilty of a misdemeanor.’ Under this statute the offence of bigamy, like that of carrying concealed weapons, for instance, is continuous ; and the limitation does not begin to run as long as the criminal act — ‘ having two wives or two husbands at one and the same time’ — continues.</p> <p>“ The English statute is different: ‘ Whosoever, being married, shall marry any other person during the life of the former husband or wife * * * * shall be guilty of a felony.’ Under this statute the limitation begins to run from the moment the criminal •act is consummated; that is, when one being ‘married,’ marries ‘ any other person during the life of the former husband or wife.’</p> <p>“ If you believe the Commonwealth’s testimony, the defendant may be convicted ; his plea of the Statute of Limitations cannot avail him. * * *”</p> <p>The defendant was convicted and sentenced.</p> <p>Having excepted to the charge of the court on the effect of the Statute of Limitations, the defendant took a writ of error and assigned the charge for error.</p>

<p>1. The title of an act was, “ An Act giving the right to the Town Council of the Borough of Mauch Chunk to huild drains, and sewers, and file liens for the building of the same.” The act authorized the council to direct lot-owners to build sewers, &e., and upon failure, the authorities might build, &c., and charge the cost as provided by the General Borough Law. The 2d section authorized the authorities to impose a reasonable charge'upon lot-owners, “ who may have tapped or who may hereafter tap, any sewer, &c., which was built or may hereafter be built” by the borough — not exceeding $1 yearly for each foot front of the lot, which charge may be discontinued when the borough is reimbursed the expense of “ building and maintaining” the sewer, &c.; the charge may be collected by action of debt. Held, that the 2d section was within the scope of the title and was constitutional.</p> <p>2. Part of an act not within the subject stated in the title, may be declared unconstitutional, leaving the rest to stand.</p> <p>3. It is the duty of the court to reconcile the different parts of a law, if it can reasonably be done, rather than frustrate the legislative action. .</p> <p>4. The provision that the charge “ may be discontfnuec] when the borough is reimbursed, &c.,” is mandatory, to guard against a continuing charge for construction beyond the time of payment; leaving the borough under its general powers — which are ample — to collect a charge from lot-owners for the use of the sewer.</p> <p>5. A sewer built before the passage of the act being within the powers conferred by the General Borough Law, was not illegal.</p> <p>6. Such sewer was within the intent expressed in the title of the act, authorizing the borough to file liens for building.</p> <p>7. The remedy in the title to “ file liens,” is only modal, the purpose being to secure the expense.</p> <p>8. The.collection is the substantial point intended of the authority to file the lien ; and any remedy for collection in the body of the act would not be foreign to the title.</p> <p>9. Useful and honest legislation should not be defeated by too rigid an adherence to the letter of the Constitution; or pretexts be caught at to avoid legislation where it can be fairly reconciled with the Constitution.</p> <p>10. If the title fairly gives notice of the subject of the act so as reasonably to lead to an inquiry into the body of the bill, it is sufficient; it is otherwise if it tends to mislead and draw attention from a covert purpose in the bill.</p>

<p>Error to the Court of Common.Pleas of Lehigh county: Of July Term 1875, No. 40.</p> <p>This case was originally commenced before a' justice of the peace, of whose proceedings the following is a transcript:—</p> <p>“Benjamin Schlosser</p> <p> v. </p> <p>Santee Peter.</p> <p>“ Civil suit. Summons issued December 9th 1871, to the constable, &c. * * * Returnable the 16th of December. December 11th 1871, plaintiff claims as follows: Sold to the defendant twenty-one square of slate, at $5.50 per square, amount $115.50; two load chips, at 50 cents a load, amount $1; one log, twenty-four feet, at seven cents, per foot, amount $1.68; one load wood, $2; four cord wood, at $2 per cord, amount $8 ; four logs, sixty-four feet in all, at 15 cents per foot, amount $9.60. 'Whole amount of claim, $137.78. And now, December 16th 1871, parties appeared, but could not agree. Adjourned by consent of the two parties, to meet again on the 30th of December, at 12 o’clock noon. * * * And now, December 30th 1871, parties appear. Defendant claims an offset for the-following items: Hauling 427 sills, at six cents a piece, amount $25.62; one day hauling sills $5.45; eleven days hauling logs, at $5 per day, amount $55; cash paid to the plaintiff, $20 ; corn delivered to plaintiff, $1.27. Whole amount of claim, $107.34. Four witnesses sworn for plaintiff and four witnesses for the defendant. After hearing the parties and their witnesses, I have made a. deduction of fifty cents a square on nineteen squares of slate, and a deduction of $1.50 a day on the hauling of the logs, leaving the plaintiff claim the amount of $128.28, and the defendant claim $90.84, leaving a balance of $37.44 in favor of the plaintiff. Therefore judgment in favor of the plaintiff for $37.44, and costs of suit.”</p> <p>The defendant appealed to the Court of Common Pleas, on the 29th of February 1872.</p> <p>The cause was tried April 27th 1875, before Longaker, P. J.</p> <p>The plaintiff gave in evidence the transcript of the justice.</p> <p>The paper-books show that much evidence was taken on both sides as to the amounts.</p> <p>In the course of the trial, the defendant asked the court to direct a nonsuit, on the ground that the transcript showed that the claim of the plaintiff was more than $100, and therefore the justice had no jurisdiction. The motion was refused.</p> <p>The defendant submitted a number of points, two of which asserted that the justice had no jurisdiction. The points were denied, and with the answers were filed; but the record did not show that any exceptions were taken. The record showed that the court refused “ to take the- case from the jury for want of jurisdiction in the justice.”</p> <p>The verdict was for the plaintiff.</p> <p>The defendant took a writ of -error.</p> <p>He assigned for error, the refusal to order a nonsuit, the refusal to dismiss the case for want of jurisdiction, and the answers to his points.</p>

In the estate of George Nyce, deceased. The decedent died intestate, November 25th 1869. His administratrix having died, administration d. b. n. was granted to John Baldwin, April 8th 1871. The decedent’s residence was in Pike county, Pennsylvania. He left a large amount of assets in Orange county, New York; and ancillary administration in that county was granted to the Pennsylvania administrator. He filed an inventory in Orange county, amounting in the whole to $16,146.90.

<p>Error to the Court of Common Pleas of Northampton county: Of July Term 1875, No. 56.</p> <p>This was an action of assumpsit, brought July 7th 1873 by the Perseverance Fire Company, No. 1, against the Burgess and Council of the borough of Bethlehem,</p> <p>The declaration was in the commoii counts.</p> <p>The bill of particulars furnished, on demand of the defendants, was for $1150, money paid by plaintiffs for the use of defendants in the purchase of a steam fire engine; $500, the value of a hand fire engine; $900, the value of a hose carriage; $700, the value of a pair of horses ; $50, the value of two sets of harness ; $500, “ the value of certain furniture, equipments, &e., all. which foregoing articles were the property of the plaintiffs and were unlawfully taken from their possession by the defendants, and converted to the use of the defendants.”</p> <p>The plaintiffs afterwards filed an “amended bill of particulars,” for $1000, money lent by plaintiffs to the defendants; $150, money paid, &e., by plaintiffs for defendants’ use; “also to recover the value, with interest, of the articles and property specified in the schedule hereto annexed, which said articles and property were unlawfully, forcibly and tortiously taken from the possession of -the plaintiffs, whose property they were, by the defendants, and convei’ted by the defendants to defendants’ own use.”</p> <p>The schedule specified the articles mentioned in the first bill of particulars, and also specified the articles of “ furniture, equipments, &c.,” with the value affixed to each article; the whole amounted to $3907.20.</p> <p>The defendants filed two pleas in abatement, the substance of wliich was, that prior to July 8d 1873, the plaintiffs were a corporation liable under the ordinances of the defendants to be disbanded, and that by an unanimous vote of their members the plaintiffs disbanded and so officially announced to the defendants, who ratified, the same on the 4th of July, and invited the original corporators and members of the corporation and others to effect a re-organization ; and that the plaintiffs were neither members nor corporators of Perseverance Fire Company, No. 1, nor in anywise connected with it; the name, privileges, franchises, &c., of Perseverance Fire Company, No. 1, were all vested in the re-organization, which was alone recognised as that company in the “ Bethlehem Fire Department,” and the plaintiffs were, therefore, incapable of bringing suit.</p> <p>The counsel of the parties afterwards agreed that the defendants might, under pleas in bar, give in evidence any matters which could be taken advantage of under a plea in abatement or any special plea whatever, without prejudice to the defendants to have the whole merits of their defence passed on by the jury.</p> <p>The defendants afterward pleaded “Non assumpsit and payment, with leave, &c.”</p> <p>Prior to 1843, the real estate in Bethlehem belonged to the Moravian Society. They owned also a very old hand-engine, which had become useless and had passed as a relic into the hands of an unincorporated fire association (the nucleus of the plaintiffs’ company), in Bethlehem. The possession of this engine, although it was not included in the property alleged to have been taken by defendants, appears to have been the occasion of this controversy.</p> <p>Bethlehem was not then incorporated ; it was incorporated in 1849. By the act of incorporation the authorities had power to organize as many fire companies as there should be engines belonging to the borough, and to assess, and apportion, raise and appropriate such taxes as might be necessary for carrying their rules, ordinances and' regulations into effect.</p> <p>Afterwards the borough came under the General Borough Law of April 3d 1851 (Pamph. L. 320, 1 Br. Purd. 167). The 18th paragraph of the 1st section of the act provides that boroughs shall have power “to make regulations relative to the cause and management of fires, and within such limits within the borough as they may deem proper to prescribe; and to authorize the borough authorities to appropriate money for the purchase of fire-engines for the use of said boroughs and to fire companies.”</p> <p>Subsequently the members of the fire company applied to the Court of Common Pleas of Northampton county to be incorporated. Their petition set out that they were “ associated for the purpose of forming a fire-engine and hose company, and prayed to be erected into a corporation,” to be situated in the borough of Bethlehem. * * *</p> <p>The preamble of their constitution submitted with the petition, stated that “ We having formed ourselves into afire company under the name of ‘ The Perseverance Fire Company, No. 1,’ having for our object the protection of the property of our fellow citizens from fire, do agree to accept the following constitution,” &c.</p> <p>There was no provision in the constitution for the dissolution of .the corporation.</p> <p>On the 6th of October 1853, the court made the decree of incorporation.</p> <p>On the 1st of March 1869, the council of the borough purchased a steam fire-engine for the use of the Perseverance Company “ for the sum of $4000;” of this sum the plaintiffs alleged that they had paid $1000, which was one of the specifications in their bill of particulars. Council subsequently bought another steam fire-engine for the use of the Reliance Company. Subsequently, on being informed by these-companies that they were about to disband, from inability to meet their expenses, the council resolved to pay all necessary expenses for keeping the engines and their houses in order, &c. Council afterward sold two hand-engines belonging to these companies for $600.</p> <p>On the 5th of July 1872, the council passed an ordinance constituting “ The Bethlehem Fire Department,” consisting of the several companies within the borough; they were to elect a chief engineer; each company to elect from their members an assistant engineer subject to the approval of the town council;.the chief engineer to remove any of the assistants by a resolution passed by two-thirds vote of the council; and by a like vote the council could remove the chief engineer. The chief engineer was to have full control of all the fire apparatus; he and the assistants were to constitute a board of engineers who should have power to expel or fine any member of any of the companies for improper conduct as specified in the ordinance; and should one-fourth of any company be guilty of such improper conduct, the engineer might suspend the company or fine each member of such company, and for a second offence, disband the company; the fines to be collected by suit before the burgess as other municipal fines were collected.</p> <p>There were other ordinances and resolutions in relation to the control of the fire department by the borough authorities.</p> <p>At a special meeting of the town council, held on the morning of the 3d of July 1873, the burgess stated that the object of the meeting was, “ that as the Perseverance Fire Company had refused to give up the old engine as per resolution passed at a meeting of the Water Board, to be placed in the room of the Young Men’s Missionary Society of Bethlehem for safe keeping, and that sundry threats had been given as to the destroying the old engine, &c.; he asked the council to take action on the matter.” A resolution was then passed, directing the old engine to be given to the museum committee of the Young Men’s Missionary Society, in trust for safe keeping until otherwise ordered, and that the police force, with the members of council, should proceed to the Perseverance engine-house and remove the old engine, and if any resistance should be offered, the police should proceed according to law. The chief engineer was instructed to call a meeting of the engine company and examine into the difficulty about the old engine and other misconduct; the burgess was directed to place policemen on the premises day and night till the difficulty be arranged ; it was resolved also, that if the old engine could not be removed peaceably it should be removed by force.</p> <p>The case was tried May 11th 1875, beforé Meyer, P. J.</p> <p>J. N. Edwards, a member of the plaintiffs, testified, that on the 8d of July 1873, the town council and police officers came to the engine-house and removed the old hand-engine; when the trustees of the company became aware of this they had' interviews with some of the members, and about 9 o’clock in the evening there were assembled at the engine-house about twenty-six of the mem- • bers. The president called the meeting to order, and said “ the insult offered to us would be considered ; * * * then they wanted to disband and became noisy; I said to the foreman that I would make a test vote on the question, and as soon as the question was taken he should move to adjourn ; the motion that a test vote on the question be taken was by rising, no count was taken on account of the confusion.” A committee was appointed to see if the Reliance Company would disband. Some business was transacted as to what the company would do if they disbanded; a committee was appointed to take an’ inventory, because they thought the boro"ugh would take the property. The company did not disband that night; the meeting was not regularly organized; each member was to have a written notice twenty-four hours before a special meeting; the president stated that the object was to see about taking away the old engine and about disbanding the company. The company claimed to own the old engine.</p> <p>He testified that the articles contained in the inventory — the same as those in the hills of particulars — belonged to the company ; a hand-engine (not the relic) was sold without the assent of the company after the steamer was bought, the company interposed no objections; they were not consulted; the company had previously wanted to sell, the council did not like it and it was dropped; the money for the horses was raised by voluntary subscriptions taken by the company from citizens of Bethlehem, and by a ball. The horses were taken by the borough officers July 4 th.</p> <p>J. A. Fries testified that the company paid $1000 to the chairman of the Borough Finance Committee, and he paid that and $1000 of the borough’s money to the manufacturer for the steam fire-engine ; the $1000 paid by the company were the proceeds of a “Gift Enterprise,” which they had conducted.</p> <p>PI, Yost testified that the high constable of the borough took possession of the engine-house, and locked out the members of the company; that members of the town council were with him.</p> <p>Schitz, the high constable, testified, that with other police officers he went, by order of the council, to the engine-house, on the morning of July 3d 1873; the members of the council were with them ; -he went in, got the key, and locked the door; after the members of the company went out, he put the dead-latch down so that it could not be opened with a key; and, by order of the council, he kept the key in his possession ; one of the police took the horses away. Pie was not ordered to take away anything else.</p> <p>There was evidence that the lot on which the engine-house was erected belonged to the borough; that the building was erected by the company.</p> <p>■ There was evidence also, that the company had paid for the hose-carriage; the money which paid for it was raised by subscriptions obtained by the company from the citizens of Bethlehem.</p> <p>There was evidence also, that the goods in the engine-house continued there after the borough officers took possession of it.</p> <p>The defendants gave evidence by Otto Brunner, that on the 3d of July there was a company re-organized. On the 4th a number of the members of the original company, at the request of members of the town council, met the council at the rooms with respect to the organization of a company to take charge of the Perseverance fire-engine, that the old company had disbanded — “ to take charge of the general apparatus.” The members of the old company who -tfere at this conference organized the company; a number of the former members joined ; a number of other citizens offered to organize with them there; a general meeting was called for the 8th; there was a meeting on that day, and a committee appointed to frame a constitution and by-laws; the company was fully organized in that month, and a committee appointed to notify the council to hand them the property in trust; that was done, and the company took charge of it and attended to their duties ever since.</p> <p>Another witness testified, when they went to the engine-house on July 4th, there were a number of the members of the old organization there; that one of them pointed to some property which they claimed, and said that they had nothing to do with the balance ; that the new organization had had most of the property in dispute in their charge ever since; none of the original members had ever made a demand for the property.</p> <p>The chief engineer testified, that he was at the meeting on the night of July 3d ; there was much excitement and noise, so much so that the vote on disbanding could not be taken. After much speaking and efforts to take the vote, witness, as chief engineer, said that they should decide the question of disbanding one way or the other ; he wished to make his report to the council; after that a vote was taken, “and they all jumped up and unanimously hallooed to disband.” They then resolved to dispose of their horns, &c., 'and to appoint a committee to procure a room to store things belonging to the company. Witness reported to council on the 4th, that he had gone to the engine-house to call a meeting as he was ordered, and found that they had called a meeting themselves, .and had unanimously resolved to disband. The old hand-engine was taken away July 3d ; all the fire apparatus of the borough was transferred to another company. The old hand-engine was taken without the consent of the company — that was what made the disturbance.</p> <p>There was evidence that the council never offered to restore the property,</p> <p>There was much other evidence — bearing on the question of disbandment — the ownership and value of- the property ; the taking possession of it by the borough authorities, and whether they had permission of the company to do so, &c.</p> <p>The plaintiffs, in rebuttal, gave evidence that no notice had been given of the holding of the meeting on July 3d.</p> <p>The following are points of the plaintiffs, with their answers:—</p> <p>2. There are no facts given in evidence in this case which suffice to show that the plaintiffs were ever legally dissolved or disbanded as a corporation, or that they had lost or forfeited their right to hold and retain the property which they had acquired, and for the recovery of the value of which this action was brought.</p> <p>7. The legal title to the two horses held by the plaintiffs and taken by the defendants was in the plaintiffs at the time they were taken.</p> <p>8. The money with which the said horses were purchased was the money of the plaintiffs, no portion of it having been furnished or contributed by the defendants, and the circumstance that a portion of it was contributed upon a representation by Samuel Mack, the collecting agent, that the horses when purchased should be used for the protection from fires of the citizens of Bethlehem, or should belong to the borough, would not suffice to divest the legal title of the plaintiffs in the horses.</p> <p>Answer: “If the jury find the fact from the evidence that the money with which the two horses were purchased was contributed in part by the plaintiffs and the residue by the citizens of the borough of Bethlehem, and paid over to the plaintiffs, then the legal title to said horses was in the plaintiffs, and subject to this qualification the seventh and eighth points are affirmed.”</p> <p>10. By virtue of the payment of the said alleged sum of $1000 to the owners of the said steam fire-engine as a part of the purchase-money thereof, the plaintiffs, in absence of any agreement, by mere operation of law, became the owners of an undivided interest as tenants in common in the said steam fire-engine, in the proportion which the said sum of money paid bore to the whole purchase-money of the engine.</p> <p>13. The declarations of a few of the members of the Perseverance Eire Company on the night of July 3d 1873, and on the next day, to the effect that the company had disbanded and that they, the said members, would not turn out at fires, would not, even if believed by the jury, as testified by the defendants’ witnesses, suffice either to work a dissolution or accomplish the disbandment of the plaintiffs.</p> <p>Both these points were affirmed.</p> <p>The following are points of defendants and were all negatived:—</p> <p>1. The engines, liose-carriage. and other apparatus for the ex-tmguishment of fires, held by a fire company, which have been paid for by money subscribed directly or indirectly by the citizens of a town, or raised by taxation, are held by such fire company in trust for the citizens of such town, subject to the control of the constituted authorities of such municipality, 'and such fire company has no title to sell the same.</p> <p>2. Whenever the borough, in the exercise of a reasonable discretion on their part, saw proper to give over the custody of the fire-engine and other fire apparatus to another company than the plaintiffs, organized to extinguish fires, such action gave the plaintiffs no title to recover the value of such property from the borough.</p> <p>3. If the jury believed that the association of men known as the Perseverance Eire Company, No. 1, “ on the 3d and 4th of July 1873, agreed to disband, and either neglected or refused to attend to their duties as firemen, the borough authorities had the lawful right to take possesion of the engine, horses and other apparatus and to deliver them to another company organized to take the place of the disbanded company.</p> <p>5. If the jury believe the borough council in good faith acted upon the official report of the chief engineer that the plaintiffs’ company had disbanded, and the plaintiffs having received information of such action gave no notice to council, in a reasonable time, that they had not disbanded, and made no request for the return to their care of the fire apparatus, that no action can be maintained to recover its value.</p> <p>6. The bringing of the. suit by the plaintiffs, on the 7th of July 1873, which was before the organization of the new company, and before the delivery to such new' company of the fire apparatus, without notice to the borough council that they had not disbanded, ratified the action of the council in treating the company as disbanded, and justified the borough authorities in delivering the property to the new company, and the plaintiffs therefore cannot recover.</p> <p>7. There was neither an express nor an implied contract on the part of the borough to pay the plaintiffs the value of the fire apparatus and other property, and the plaintiffs therefore cannot recover.</p> <p>8. There is no evidence that the borough took any of the property of the plaintiffs and converted it to their own use, so as to entitle the plaintiffs to recover in trover, and that the plaintiffs, therefore, waiving the tort, cannot recover in assumpsit.</p> <p>10. If plaintiffs were a fire company in the fire department of Bethlehem, and acquiesced in an ordinance entitled “ An ordinance relative to chief engineer, assistants and fire department,”' passed July 5th 1872, and an ordinance entitled “An ordinance authorizing a uniform badge'for the fire department of the borough of Bethlehem,” passed July 5th 1872, by assisting in the choice of a chief engineer and wearing the department badge, and plaintiffs voluntarily disbanding themselves, they are in the same position as if they had been disbanded by council under section 8 of the first of said ordinances, and their reinstatement is a matter altogether “in the option of the council.”</p> <p>12. There is no evidence that the payment of the sum of $1000 upon the steam-engine was a loan to the borough, and even if the jury believe there was a promise by the borough that the plaintiffs should have an interest to that extent in the engine, no recovery can be had in this action for the sum so paid, as the plaintiffs have failed to show that the borough has ever sold the, engine or applied it to other uses than those 'for which it was originally purchased.</p> <p>In the general charge, the court said :—</p> <p>* * * “ It is contended by the defendants that the plaintiffs mistook their remedy; that they ought to have gone into a court of equity or by mandamus raised the question as to the title to and right of possession by the plaintiffs of the property in question, under their charter of incorporation, as well as the right of the defendants under their charter, the general borough laws, and their ordinances. I endeavored to satisfy myself that the sole remedy in this case is a court of equity or by mandamus, but in the absence of an express authority on that point, I am compelled to apply the general rule of the common law respecting the rights of property and the remedy to enforce these rights, and therefore hold and so charge you, [that while there might have been a concurrent remedy in a court of equity or by mandamus, yet these plaintiffs, if they had the legal title to the property, which they allege the defendants took and retained possession thereof, forcibly and without their consent, and under circumstances which would entitle them to recover against a stranger, they had a right to have and maintain a common-law action against these defendants.]</p> <p>“In this form of action, in ordinary cases, where one person receives the money of another, or where he receives such money, which in good conscience he has no right to retain, or where a person lays out and expends money for the use of another, at his request, either express or implied, the law implies a promise to pay the money so received, laid out and expended. * * *</p> <p>“First. It is contended on the part of the plaintiffs that if the jury find from the evidence that they were the lawful owners of the property mentioned in the hill of particulars, and that the defendants forcibly and without plaintiffs’ consent took out of their possession this property and retained it, that they have the right to waive the tort, and recover the value of the same with interest in this form of action under the count for money had and received. We say to you that such is the law, and it is immaterial whether you find that they held such property absolutely or in trust for the uses and purposes provided for by their charter. * * * If, therefore, you find that any property included in plaintiffs’ bill of particulars was in possession of the plaintiffs on the 3d of July 1873, and before bringing of the suit, which was simply loaned to them by said society or some one else; which was never given to them, or which they did not purchase or contribute themselves, then as to such property the plaintiffs did not have title to recover in this form of action. If they only had the lawful possession of such property and it was taken by force and without their consent, they could in an action of trespass recover damages for depriving them of their possession, but they could not recover the value of the property in any form of action.</p> <p>“ What other property was there which belonged exclusively to the plaintiffs and which was in their exclusive possession at the time of the alleged trespass by the defendants, and which was acquired by the plaintiffs in the manner I have already stated ? If you find from the weight of the evidence that they then had such property, that they had it in their exclusive possession and that it was acquired by them in that way, and is included in said bill of particulars, unless something else shall appear in the case, to which I shall call your attention shortly, the plaintiffs would be entitled to recover the value of said property, together with interest, if you find from the weight of the evidence that it was forcibly taken out of their possession by the defendants in their corporate capacity before the bringing of the suit, and either retained it or delivered it over to another company, without the consent and against the will of the plaintiffs. Or if the defendants before the bringing of this suit, obtained possession of said property by the express or implied consent of plaintiffs of their acts and conduct, and^the plaintiffs before the bringing of the suit made a demand upon the defendants for the same and they refused to deliver it up, the plaintiffs can recover. But if you cannot find from the weight of the evidence that the property in question was the property of plaintiffs, .or if you find that it was their property, but cannot find that this property was taken by the defendants in their corporate capacity by force or by appearance of force or by the exhibition of authority, but that they got possession of the same by the consent express or implied of the plaintiffs, for the purpose of subserving the interest of the people of Bethlehem at that time, and there wras no demand m$de by the plaintiffs upon the defendants to deliver up the same before suit brought, then I say to you that the plaintiffs cannot recover in this case the value of said property ; and I say further to you that the mere bringing of this suit is not such a demand required by'law. *' * *</p> <p>“If the defendants sold any property that belonged to the plaintiffs, and appropriated the money, whatever money they received for such property sold, and you find the property belonged to plaintiffs, the defendants, in their action, are bound to pay over the same, and the plaintiffs can recover in this form of action. 0</p> <p>[If the plaintiffs lent to the defendants a sum of money to purchase a steamer with, or if they paid this money in the purchase of it, at the request of the defendants, express or implied, and by their conduct afterwards ratified it, then you can find in favor of the plaintiffs the amount of money so paid by them, with interest.] If they lent it to the defendants, and you find they agreed to pay it back, they can recover that amount as a loan, with interest. If they paid it for the use of the defendants, either by the express or implied assent of the defendants, -or it was after-wards ratified, then the plaintiffs are entitled to receive the amount of money so paid. [If they paid money in the repair of property belonging to the borough, and it was necessary to be paid to make it efficient for the use of the borough, then we say to you that the plaintiffs can recover for whatever money was paid, as the evidence satisfies you in this case.] * * *</p> <p>“I may say here, in a general way, that when disbanding is spoken of, you will bear in mind that the-disbandment of the company, by which they separated themselves and did not act any more, would not in law constitute a dissolution of the corporation. The corporation still exists, that in one sense is perpetual, unless it is limited by the act creating it, or it may become limited if the parties who have an interest in it go in the courts and seek a dissolution, or if they have committed some acts by which they have forfeited their franchise, and a .proper party goes before a, proper tribunal and has the corporation dissolved.’'</p> <p>The verdict was for the plaintiffs for $2975.14.</p> <p>The defendants took a writ of error. They assigned for error,</p> <p>1. The answer to plaintiffs’ second point.</p> <p>2. The answers to plaintiffs’ seventh and eighth points.</p> <p>3. 4. The answers to plaintiffs’ tenth and thirteenth points.</p> <p>5-7. The answers to defendants’ first, second, and third points.</p> <p>8-11. The answers to defendants’ fifth,- sixth, seventh and eighth points.</p> <p>12. The answer to defendants’ tenth point.</p> <p>13. The answers to defendants’ twelfth point.</p> <p>14-18. The parts of the charge in brackets.</p>

<p>1. Taylor lent money to Schuon and took two mortgages, one for $3000, which was a first lien, the other for $10,000, prior to which was a mechanic’s lien; the aggregate was $656, more than the amount advanced by Taylor: the land was sold by the sheriff subject to the $3000. In distributing the proceeds, creditors alleged the $656 -were usurious and should be deducted from the $10,000. Held, that Taylor having advanced more than $10,000, he was entitled to receive the whole amount due on that mortgage.</p> <p>2. A creditor having two securities for the same debt may avail himself of either until he has received his whole legal claim.</p> <p>3. The court below in distribution apportioned the $656 between the two mortgages; Held to be error.</p>

<p>Error to the Court of Common Pleas of Pike county: Of January Term 1876, No. 126.</p> <p>On the 15th of June 1872, judgment: Francis Everett against D. M. Yan Auken, was entered in the Court of Common Pleas of Pike county, on the following note:—</p> <p>“$3340.00. On the first day of January A. D. 1873, for value received, I promise to pay Francis Everett, or order, three thousand three hundred and forty dollars, without defalcation or discount, with interest from the date hereof, and I do hereby confess judgment for the above sum, with interest and costs of suit, and do hereby empower any attorney of the courts of record of this state or elsewhere, or the prothonotary thereof, to enter the said judgment of record, with release of all errors, hereby waiving the exemption laws of this Commonwealth exempting property from levy and sale on execution-and the right of inquisition, with confession of condemnation.</p> <p>Witness my hand this 12th June A. D. 1872.</p> <p>D. M. Yan Auken.”</p> <p>Subsequently, by an assignment by a separate writing, stating the docket entries of the judgment, it was assigned as follows:—</p> <p>“For and in consideration of the sum of- two thousand five hundred dollars to me in hand paid by Braddock R. Dunning, I do hereby assign, transfer, and set over unto the said Braddock R. Dunning, his executors, administrators, and assigns, two thousand five hundred dollars of the above stated judgment, and said judgment for said amount is hereby assigned, transferred, and set over, with interest from the date hereof, and direct that said judgment, to the amount of two thousand five hundred dollars, be marked to his use — said amount to be collected without recourse to plaintiff.</p> <p>Witness my hand this seventh day of May A. D. 1873.</p> <p>Francis Everett.”</p> <p>Upon the petition and affidavit of the defendant that he had a legal defence to the whole judgment, the grounds of which he set out, the court on the 26th 1874 granted a rule on Dunning to show cause why the judgment should not be opened and the defendant let into a defence. On the first of March 1875 the rule was made absolute, and an issue directed, in which Braddock R. Dunning was the plaintiff and Van Auken defendant; the note to stand as the declaration ; and the defendant to plead to issue. He pleaded payment with leave to give the special matters in evidence.</p> <p>The case was tried December 21st 1875, before Waller, P. J.</p> <p>The plaintiff gave the note, judgment and assignment in evidence and rested.</p> <p>The defendant offered to prove that in the spring of 1873, he made a loan of $2500 of Braddock R. Dunning, at Middletown, in the state of New York, at the rate of seventeen per cent, per annum; that said loan was usurious by the laws of the state of New York; that as security for said loan he procured an assignment of $2500 of the judgment given in evidence to be made to said Dunning, it having been paid to said Everett by money lent by said Dunning; and that said Dunning only holds said assignment as collateral security for said usurious loan, and the judgment was only kept alive for that purpose. Offered for the purpose of defeating plaintiff’s right to recover under said assignment.</p> <p>The plaintiff objected to the offer.</p> <p>1. That, if the above contract of loan was usurious under the laws of the state of New York, and could not be enforced by action on the ground of its being void, then the $2500 of the judgment so assigned as collateral security remains unpaid, and the validity of the judgment unimpaired.</p> <p>2. That, the original judgment being unimpaired and nothing alleged against it, nothing occurring subsequent to its rendition can be given in evidence in this. suit.</p> <p>The offer was rejected, “ as the record of the judgment is anterior to the contract usurious as alleged, and the assignment to Braddock R. Dunning was of the subsisting judgment, to the extent of $2500 and interest, being a part of the judgment.”</p> <p>A bill of exceptions was sealed for defendant.</p> <p>' No other evidence being offered, the court directed a verdict for the plaintiff for $2500 and interest on that sum.</p> <p>The jury accordingly found for the plaintiff $2743.25.</p> <p>The defendant took a writ of error and assigned for error the . rejection of his offer of evidence.</p>

<p>Error to the Court of Common .Pleas of Lehigh county: Of January Term 3876, No. 168.</p> <p>This was an action of assumpsit, brought July 6th 1872, by James I. Tool and Charles W. Romich, assignees in bankruptcy of E. H. Knerr, against Martin Kemmerer.</p> <p>The action was to recover from the defendant the amount received by him from the proceeds of the sheriff’s sale of Knerr’s property, on a judgment alleged to have been obtained against Knerr in fraud of the bankrupt laws.</p> <p>The case had been before tried and the judgment reversed; it is reported in 28 P. F. Smith 147.</p> <p>The case was again tried September 13th 1875, before Longaker, P. J.</p> <p>The plaintiffs gave in evidence the proceedings under which Knerr, June 22d 1870, was adjudged a bankrupt; also the record of a judgment, against him in favor of Kemmerer, entered in the Common Pleas of Lehigh county, on the 3d of April 1868, to January Term 1868, for $4000; also, revival of the judgmént to April Term 1870, by agreement of parties in an amicable scire facias, dated May 16th 1870, and filed May 17th.</p> <p>Knerr testified that at the time the judgment was originally entered, he owned a tract of 23 acres of ore land; one-half of another tract of ore land containing 23 acres; one-half of the Lyon hotel property in Berks county; one-half of two houses in the 6th ward, Allentown, and of town lots in Allentown.</p> <p>About the 5th of June 1868, the witness sold-his interest in the ore lands, and on that day, the defendant released the lands from the lien of his judgment; about the 10th of April 1869, he sold his interest in houses in Allentown, and from the purchase-money paid $1350 to the defendant, who then released the houses from the lien of his judgment. Witness afterwards bought a farm called the “Marx farm ;” at the time the judgment was revived, it was worth $9000 ; his personal property was then worth $3300.</p> <p>The witness testified much at large as to his property, debts, &c.</p> <p>On cross-examination defendant proposed to him a number of questions as to his insolvency, his knowledge of it at the time of the revival, and his intent to give the defendant a preference over his other creditors; all which were rejected by the court and bills of exception sealed.</p> <p>The defendant, called by the plaintiffs as on cross-examination, testified, that he took the revival( when his judgment was two years old, because he had released the other properties, to cover all the real estate, to obtain a lien on the Marx farm. He testified, also, that he knew that Knerr was indebted in large amounts. At the time of the revival he did not know that Knerr was insolvent or contemplated insolvency; he knew, at the time of the revival, that he could have issued an execution and created a lien on Knerr’s real and personal estate. He had issued a fieri facias and sold Knerr’s interest in an ore lease.</p> <p>There was evidence also by the plaintiffs, for the purpose of showing that the defendant knew that Knerr was insolvent; they gave evidence also that there was a large amount of record debts and other debts against Knerr at the time of the revival.</p> <p>The “Marx farm” was sold by the sheriff for $6300. On the 8th of November 1870, the sheriff paid the defendant, Kemmerer, from the proceeds of sale, $2583.27, “in full of debt, interest and costs” on his revived judgment.</p> <p>This is the sum for which the plaintiffs brought this suit.</p> <p>The following are the defendant’s points and their answers :—</p> <p>1.- The Bankrupt Act is not to be construed to cover all cases of insolvency to the exclusion of other judicial proceedings. A debtor can confess a judgment and allow his property to be seized on execution; this is not per se an act of bankruptcy.</p> <p>3. A creditor holding a judgment may issue an execution and levy on the property of the debtor, even though he doubts his solvency at the time of making the levy, and the lien thus created will be protected.</p> <p>4. The defendant, Kemmerer, could have issued execution on his original judgment, at the time, or before the revival, seized Knerr’s property, and levied on the Marx farm, without committing a fraud on the Bankrupt Act.</p> <p>To each of these points the judge answered :—</p> <p>“ This is a good legal proposition, but it has no application to the issue trying.”</p> <p>5. Kemmerer having taken a revival of the judgment, thereby giving time to Knerr, is evidence to rebut the presumption of fraud upon the Bankrupt Act. ’</p> <p>Answer. “ This is a circumstance which may be considered by you, if you deem it of any weight, in determining this question. It is not affirmed as broadly as prayed for.”</p> <p>6. (Kemmerer might at once have sued out an execution, made a levy on the after-acquired real estate of Knerr, and thus secured the lien which he was desirous of obtaining.) The mere circumstance that Knerr consented to do a thing, which in any aspect was for his (Knerr’s) benefit, should not be allowed to affect the creditor, with knowledge of insolvency.</p> <p>Answer. “ The first part, as a proposition, may be good law, but it has no application to the case trying. The remainder is a circumstance for the jury to give to it such weight, if any, it may be entitled to.”</p> <p>8. Kemmerer in accepting the revival obtained no higher security than he might have obtained by issuing execution, and, therefore, it is no fraud on the Bankrupt Act.</p> <p>Answer: “ This point as a whole is answered in the negative.”</p> <p>The court further charged :—</p> <p>* * * “ This action is based upon the allegation that the defendant obtained a preference upon certain real estate of Mr. Knerr, contrary to the provisions of the Bankrupt Act, and such conduct, if it exist, will be a fraud upon that act. The acts contrary to the provisions of the bankrupt law, as alleged in this case, are not in themselves fraudulent in fact; nor are they criminal; nor tainted with turpitude; but, being prohibited by the Act of Congress, they are-illegal, and being the means or device used to secure the payment of the money in dispute, render the defendant liable in this action; and if there should be a recovery by the assignees, then this money will be assets of the bankrupt’s estate for pro rata 'distribution amongst his creditors. * * * You are trying the sole question of fraud or no fraud upon the Bankrupt Act.</p> <p>“ The Bankrupt Act is a means intended to effect an equitable distribution of an insolvent’s estate amongst his creditors. Yet while this is the specific purpose of the act, one creditor may by adverse legal process obtain a lien to the exclusion of other creditors, and thereby secure the payment of his claim; provided, no act be done which is prohibited by the provisions of the Bankrupt Act. * * *</p> <p>“ While this may be legally done, yet every device, contract, contrivance, or agreement between a creditor and his debtor, entered into with an intent to defeat the provisions of the Bankrupt Act, and being collusively done, is void; and whatever property or valuable thing is so obtained, may be covered in an action by the assignees of the bankrupt, and when so recovered is held as assets for the benefit of all the creditors who may legally prove their claims.”</p> <p>The judge then recapitulated the facts.</p> <p>Approaching then the consideration of this important point, you will inquire, did Knerr, the debtor, and Kemmerer, the creditor, do any act which is contrary to the provisions of the Bankrupt Act, by agreeing to a revival of this judgment ? If they did, then this action will be maintained; if they did not, then the action will fail.</p> <p>“ To commit a fraud upon the Bankrupt Act these several ingredients must concur: 1st. Knerr must have been insolvent, or contemplating insolvency; 2d. The revival of the judgment must have been given with a view to prefer, or must have in effect preferred the defendant over the other creditors; 3d. The defendant, at the time, must have known, or must have had reasonable cause to believe that Knerr was insolvent, or was contemplating insolvency, and that the revival of the judgment was given in fraud of the provisions of the Bankrupt Act; 4th. The revival must have occurred within four months of the filing of the petition upon which Knerr has been declared a bankrupt.</p> <p>“ 1. Knerr must have been insolvent, or was contemplating insolvency. Insolvency under the Bankrupt Act is not a total inability of Knerr to pay his liabilities for want of assets, but it is that condition financially, when he is unable to pay his notes, and other liabilities generally, as they fall due. A failure to meet a note or two, or other indebtedness when due or demanded, is not enough, if payment be made within a reasonable time thereafter; but if there be a general failure to pay, then the condition of the law is satisfied and insolvency has occurred, or the debtor may be said to be acting in contemplation of insolvency. * * * Insolvency is a question of fact, and is not founded upon the actual knowledge of the debtor or creditor; a reasonable cause to induce the belief is all that is required, as regards the creditor.</p> <p>“Was then Knerr, May 17th 1870, insolvent, or acting in contemplation of insolvency ? Was he at that time able to pay his debts, or had he a reasonable expectation that he would be able to do so ? Or had he the ability to pay his notes, or other debts, as they became due, or within a reasonable time after they became due and were demanded ? * * * [If at the time of the revival of the judgment you find the fact that Knerr was entirely unable to pay his debts, then the law declares him to be insolvent, and a bankrupt in fact. If he were unable to pay his notes as they matured, or to pay generally his debts due as they should be demanded, then, under the provisions of the Bankrupt Act, he will be declared to be a bankrupt; even though he might have assets sufficient to pay all his debts.] * * *</p> <p>“ You will then direct your inquiry to the time of the taking of the revival, and determine whether or not, at that time, Knerr was able to pay his debts. Was he insolvent or contemplating insolvency ? If you find that Knerr was insolvent, or contemplating insolvency, you will have established the first requisite to support this action. * * *</p> <p>“ Assuming you have found the first, requisite — insolvency, or contemplating insolvency — you will proceed to inquire as to the second requisite, that is, was the revival given with a view to prefer, or did it in effect prefer the defendant’s claim over the other creditors ? [I instruct you that the effect of the revival was to give “the defendant a preference over the other creditors, and as the law presumes that every man intends the consequences of his act, it follows as a legal conclusion that the revival was given with a view to prefer, and did in fact prefer the defendant over the other creditors.]</p> <p>’“ Assuming that the first requisite has been established — the insolvency, or the contemplation of insolvency by the defendant, and the second following as a conclusion of law, you will proceed to inquire for the third requisite, to wit:—</p> <p>“ Did the defendant know, or had he reasonable cause to believe that Knerr was insolvent, or contemplating insolvency ? And was the revival given with an intent to defeat the provisions of the Bankrupt Act? This requisite may be considered under three heads : actual knowledge, reasonable cause to believe and the intent to defeat the law. As bearing upon actual knowledge, actual notice is to be regarded as actual knowledge ; and notice is either actual or constructive. Under the Bankrupt Act, notice may be either real knowledge, or such a chain of facts and circumstances as will produce a reasonable cause of belief. Reasonable cause of belief is a condition of mind falling short of actual knowledge ; it is a reasonable and well-grounded suspicion naturally flowing from facts proven, and may flow from facts not sufficient to produce a full conviction. In the ordinary transactions of life, a chain of facts and circumstances often exist upon a subject about which inquiry is being made, which will not produce a full conviction of the existence of such facts, yet it will produce a reasonable and well-founded belief in the existence of such facts, and this is all that is required here.</p> <p>“ [Again, there is a legal principle called constructive notice. Constructive notice is distinguishable from actual notice, or knowT ledge in this, as regards the Bankrupt Act. Whatever facts, course of conduct, or circumstances, fairly put a careful and prudent man upon inquiry, where- the means of knowledge are at hand, will constitute constructive notice, and when these things, concur, and a party fails to make a proper or reasonable inquiry as regards the truth or falsity thereof, he does so at his peril, and he becomes chargeable with all the facts which by a proper inquiry he might or ought to have ascertained.]</p> <p>“Under this instruction, as to legal principles, you will recur to a consideration of the facts, and determine whether or not the defendant by rumor, report, or the reputation of the neighborhood, had information of such facts and circumstances as would put a prudent and ordinarily careful person upon inquiry.”</p> <p>The judge then referred to evidence of conversations of the defendant with other persons, and proceeded :—</p> <p>“If you find as a fact, that the defendant used any or all of these expressions, you will weigh them with all the other testimony in the cause, as well as with the acts and conduct of the defendant, and with his testimony, and determine whether the defendant knew, or had reasonable cause to believe, or had in his possession such facts as would put a careful and prudent man upon inquiry; and if you shall find any one of these three conditions, then you will have found, as a part of the third requisite, that the defendant knew, or had reasonable cause of belief, that Knerr was insolvent, or contemplating insolvency. * * *</p> <p>“ [The other part of the third requisite is, was the revival given with an intent to defeat the provisions of the Bankrupt Act ? If Knerr was insolvent, or acting in contemplation^ insolvency, and the defendant knew it, or had reasonable cause to believe it, the fact that the legal consequence of the revival was to give a preference, a legal presumption arises that the act of revival must' be construed as an intent to defeat the provisions of the Bankrupt Act; because every person is held to intend the logical sequence of that which necessarily flows from the acts or act done by him. But while this is a presumption, and only primá facie proof, it may be overcome if there is found any testimony in the cause strong enough to overcome it, and this is a fact which you must determine.] ” * * *</p> <p>The verdict was for the plaintiffs for $3389.25.</p> <p>The defendant took a writ of error. He assigned for error:—</p> <p>1. The answer to his first point.</p> <p>2-7. The answers to his third and subsequent points.</p> <p>As to the charge of the court.</p> <p>This assignment was to the parts of the charge in brackets which were separately numbered.</p> <p>As to the admissions and rejections of evidence.</p> <p>This assignment also was divided into clauses referring to each particulur ruling and consecutively numbered.</p>

<p>Error to the Court of Common Pleas of Pike county: Of January Term 1876, No. 123.</p> <p>The proceedings in this case were under the Landlord and Tenant Act of December 14th 1863, Pamph. L. 1126, 2 Br. Purd. 882, pi. 20. They were commenced before a justice of the peace April 15th 1874, on the complaint of John Quinn; that on the 11th of March 1873, he was quietly in possession of a farm of one hundred and twenty-four acres, and on that day demised it to W. H. McCarty for one year from April 1st 1873, “ with the privilege of five years at the annual rent of $175, under the terms and conditions of the lease;” that three months’ notice to quit had been given to McCarty to remove, &c., that- he had refused, &c.; and asking that proceedings be taken as directed by the Act of Assembly.</p> <p>Process was accordingly issued against McCarty, and after hearing on the 30th of April, the justice found the complaint true, &c., and entered judgment against McCarty that he should forthwith deliver possession of the premises, and gave judgment also for $6 damages and costs; on the same day a writ of possession was issued; McCarty appealed, May 7th. The constable, May 8th 1874, returned to the writ that he had delivered possession to Quinn on the 4th of May.</p> <p>The case was tried December 24th 1875, before Waller, P. J.</p> <p>The lease was given in evidence by plaintiff; it was dated March 11th 1873, for a piece of land, describing it, containing one hundred and twenty-four acres, upon which were “erected a dwelling-house, barn and other out-buildings, for the term of one year with privilege of five years, providing the terms hereafter mentioned are complied with by said McCarty ; said McCarty agrees to pay for the same the sum of one hundred and seventy-five dollars, payable as follows. * * * And it is hereby expressly agreed that all the improvements made to said building or dwelling-house are to be done at the expense of said McCarty, and to remain a part of the realty. * * * And the said Quinn binds the said McCarty to not take off the premises the hay, straw, and cornstalks raised thereon, but that the same should be fed and used up on the premises. And the said W. H. McCarty agrees to give peaceable possession of said property at the expiration of said term of five years to the said John Quinn, or sooner, if these conditions above-mentioned are not complied with, in the same ■ condition as when he took possession thereof, common wear and tear, and casualties which may happen by fire, or otherwise, excepted. Notice of three months must be given to the said W. H. McCarty previous to the expiration of each of said years if these provisions are not complied with by said McCarty, or else this agreement shall be considered as renewed. And it is hereby further agreed by the said Quinn that the said McCarty can immediately go on and add the improvements necessary, as suits his convenience.” * * *</p> <p>Also ; .notice to quit, served December 31st 1873, as follows :—</p> <p>“You are hereby notified and required to quit, remove .from, and deliver up to me possession of the premises situate, &c. * * * which you now hold as tenant under me (you not having complied with the conditions of the lease between us for the same), at the end of your current term, to wit, on the first day of April, A. D. 1874.” * * *</p> <p>The plaintiff testified that the defendant went into possession of the farm April 1st 1873, and remained until May' 1874. The hay, straw, &c., were not used up on the place ; twelve to fourteen tons of hay were removed; all but three tons were taken after the notice to quit; he gave defendant notice to quit because he did not live up to his agreement.</p> <p>The plaintiff gave other evidence and rested.</p> <p>The defendant gave evidence in answer to plaintiff’s case and offered to prove that after he went into possession under the lease, he made a large expenditure of money in enlarging the house, and put on valuable improvements, of the use and benefit of which he was unlawfully deprived by the act of the plaintiff.</p> <p>This offered for the purpose of one basis on which the jury may assess damages.</p> <p>This was objected to by plaintiff, .because:—</p> <p>1. The rental is the proper basis of damages, and the value of the improvements themselves is not the proper basis upon which to assess the damages.</p> <p>2. The evidence would mislead the jury.</p> <p>The evidence was admitted and a bill of exceptions sealed for the plaintiff.</p> <p>Defendant said:—</p> <p>“ I expended about $600 in repairs and improvements of the property. Farm worth $200 per year at time he put me off; this aside from what the hotel was paying me at the time I was dispossessed. I had built up a good, very good business. ■ It was paying me about $2000 a year profits; was not a hotel before I took it.”</p> <p>Both parties gave other evidence and closed.</p> <p>The plaintiff’s fourth point, which was answered in the charge, was:—</p> <p>“ If the jury believe that McCarty violated the provision of the lease in removing hay from the premises, and that Quinn did not authorize such removal, then Quinn had the right to terminate the lease upon giving three months’ notice to McCarty previous to the first of April 1874; and if McCarty failed to deliver up the possession in pursuance of such notice, then Quinn would be entitled to recover damages for the retention of the possession.”</p> <p>The court charged: * * *</p> <p>“ The plaintiff claims to recover upon the ground alone that defendant had sold, contrary to the provisions of the lease in evidence, a stack of hay containing some two and a half or three tons, thereby breaking a covenant in said lease; and that having given notice to quit three months before the expiration of the year, the plaintiff had a right to terminate the lease and take the proceedings in this case before the justice; and that now on the appeal, he is entitled to a verdict, if you believe that defendant violated the provisions of the lease in removing hay from the premises without authority from plaintiff. As we dispose of this case in our answer to plaintiff’s'points, we will answer these points. We affirm the first three points as stated. [In answer to the fourth point, we say this point is not well stated. The jury must find from the evidence, facts as a basis of a conclusion asked for. The belief of the jury cannot be the basis of a finding, unless that belief is produced by the evidence in the case. We are asked in this point to instruct you, substantially, that a violation of covenants in a lease authorizes a lessor to terminate the lease, and gives jurisdiction to a justice of the peace to take cognisance of and decide the case under the Act of 1863. We think that act only applies to the plain case of determination of a lease by its own limitations, or term, and that it does not confer upon justices jurisdiction in cases of covenants, and if the justice does not derive his jurisdiction from the express terms of the act, such jurisdiction cannot be conferred by the parties, and especially by a lessor against the consent of the lessee. We therefore negative this the fourth point of plaintiff], [and instruct you that your verdict should be for the defendant for such damages as in your judgment, from all the evidence, will fully compensate him for loss and annoyance by reason of his eviction from and deprivation of the premises described], and you will further find that the defendant shall have restitution of the possession of the property described in the lease.”</p> <p>The verdict and judgment were as follows:—</p> <p>“December 24th 1875, jury find for defendant the sum of one hundred dollars and restore said defendant to the premises. • And now, to wit,' December 24th 1875, the jury having found for the defendant, and having assessed his damages at one hundred dollars and awarded restitution, it is ordered and decreed that judgment be entered against the plaintiff for one hundred dollars and costs and restitution of the premises, and a writ of possession directed to be issued on payment of jury fee.</p> <p>The plaintiff took a writ of error; he assigned for error,</p> <p>1. Admitting the evidence contained in the bill of exceptions.</p> <p>2. The answer to plaintiff’s point.</p> <p>3. 4. The last part of the charge included in brackets.</p>

<p>Error to the Court of Common Pleas of Lehigh county: Of January Term 1876, No. 149.</p> <p>This was an action of assumpsit, brought April 7th 1875, by Lower Macungie Township against the Lehigh Iron Co.</p> <p>The cause of action as set out in the affidavit of claim was:—</p> <p>“ That defendant is a corporation created under the laws of Pennsylvania and has its principal works in said county, and there carries on business; that said defendant on February 25th 1874, was and ever since has been the lessee and grantee of iron ore mines in said township of Lower Macungie, from which said mines said defendant as lessee, or grantee, as aforesaid, did cart and carry away or cause or procure to he carried away over the public roads in said township, the following quantities of iron ore, to wit: * * * ; that at the'rate specified in the act thereto annexed, relating to said township of Lower Macungie, the tax on the said ore so carried away amounts at the expiration of said first period of six months to $86.15, and for the latter period of six months to $41.87.</p> <p>“ That after said taxes became due as aforesaid, and before the bringing of this suit,' said defendant was notified of the amount of aforesaid, two sums and payment thereof demanded; that said defendant * * * is indebted to the plaintiffs in said two sums — together $128.02, all of which is due and unpaid, for the recovery whereof-this suit is brought.”</p> <p>The following are acts under which the tax was claimed: April 14th 1868, Pamph. L. 1127 :</p> <p>“ An act authorizing the supervisors of Upper Saucon township, Lehigh county, to collect an additional road tax on ore beds.</p> <p>“ That in addition to the taxes collectible under existing laws, the -owners of ore beds, situated in Upper Saucon township, Lehigh -county, shall, from and after the passage of this act, pay to the supervisors of the roáds in said township, one and a half cent for each and every ton of ore mined and carried away with teams over the public roads in said township, which said payments shall be made at the end of every six months after the passage of this act; and in default of payment, the same to be collected as debts of like amount are collectible by law.”</p> <p>Act of February 25th 1870, Pamph. L. 241:</p> <p>“ An Act to extend to the township of Lower Macungie, in the county of Lehigh, the provisions of an act approved April 14th, A. D. 1868, entitled ‘ An Act authorizing the supervisors of Upper Saucon township, Lehigh county, to collect an additional road tax on ore beds.’ ”</p> <p>“ That the provisions of an act, approved the 14th day of April, A. D. 1868, entitled, &c., be and the same are hereby extended to the township of Lower Macungie in said county of Lehigh ; provided that in all cases where the ore is mined under a lease or grant of the ore, such lessee or grantee shall be taken and held to be the party liable to pay the tax provided for by this act; provided said tax shall not exceed one per cent, per ton.”</p> <p>The affidavit of defence was:—</p> <p>“It is admitted that the Acts of. 14th April 1868, and 25th February 1870 (copies of which are appended to the plaintiffs’ affidavit), were passed by the legislature, and that the defendant, in the month of February, A. D. 1874, and from time to time since that date, has caused and procured its officers and employees to cart and carry over the highways in the township of Lower Macungie, ores mined on properties owned or leased by said defendants; and that the number of tons set forth in the statement of the plaintiffs is correct. Deponent further saith that the Acts of Assembly referred to have been abrogated and annulled by the provisions of the Constitution adopted in 1873, and consequently this suit cannot be maintained. And deponent saith that there is no authority in law for the imposition and collection of the several sums of money set forth in the plaintiffs’ statement; and that the defendant is not indebted to the plaintiffs in any sum whatever.”</p> <p>On a rule for judgment for want of a sufficient affidavit of defence, the court, Longaker, P. J., delivered the following opinion :—</p> <p>“ The special act under which this tax is demanded was held to be constitutional in Weber v. The Supervisors of Upper Saucon, 23 P. F. Smith 371. It is however contended by the defendant that by reason of the adoption of the Constitution of 1873, all local and special laws have been repealed. This declaration is not based upon an explicit provision, but is said to follow by implication; and art. 9, § 1, wherein it is provided that all taxes “ shall be levied and collected under general laws,” is laid hold of as authority to prevent the collection of this tax from the defendant. This tax, and the mode prescribed for its collection, exists only by a local law, and if the Constitution operates as a repeal of the statute, then the defence assumed by the defendant will defeat a recovery. A repeal by implication seems to be incompatible with the express language of the Constitution itself. In art. 3, § 7, it is said: ‘ but laws repealing special or local acts may be passed.’ The Constitution prohibits the enactment of local or special laws, but this prohibition most assuredly cannot be construed to operate as a repeal.</p> <p>“ Again, if the provision that all taxes ‘ shall be levied and collected under general laws’ is to be construed to repeal all special laws now in force as regards the collection of taxes, it is to be feared that many counties and other municipalities will find that there is no statute by which their taxes can be levied and collected; because for many districts special laws have been enacted ; and none have yet discovered that the new Constitution has effected a change. The Supreme Court, by affirmance of the case of the City of Pitts-burg v. Kitty Roup, Weekly Cases 524, declares, that the special act as regards the assessment of rural property is still in force. I am therefore of the opinion that the affidavit of defence is insufficient, and now, Januaryl7th, A. D. 1876, it is considered, adjudged and decreed that the rule be made absolute, and that the prothonotary assess the amount of damages.”</p> <p>Damages were assessed at $128.02.</p> <p>The defendants took a writ of error, and assigned for error the entering of judgment for the plaintiffs.</p>

<p>1. Liggett issued a summons in trespass q. c. f. against DuBois (who was summoned) and Allen, as to whom the return was “ Nihilthe declaration was against both, reciting that Allen had not been served ; the verdict and judgment were against DuBois, but not realized : Held, that another action for the same cause could be maintained against Allen.</p> <p>2. The praecipe in the second suit was for an alias against Allen alone, and referred to the former suit: Held, that an amendment striking out “ alias" in all the proceedings was properly allowed.</p> <p>3. When a summons is not served, a plaintiff at common law may prevent its abatement by entering continuances from term to term, and then issue an alias to bring in the defendant, and thus prevent the bar of the Statute of Limitations.</p> <p>4. The plaintiff may abandon his first summons and begin anew.</p> <p>5. An alias scire facias issued after five terms from the former, is insufficient to preserve the lien of a judgment which had expired in the interval.</p> <p>6. The spirit of the present age is to reach the merits of a case \d res magis valeat quarn pereat.</p> <p>7. Cridíand a. Floyd, 6 S. & R. 412; Taylor a. Henderson, 17 S. & R. 453, distinguished.</p>

<p>1. Sarah Lusk and McBride lived together in his house until her death; after his death all the goods, money, &c., in the house were taken as his by his administrator; her administrator sued his in assumpsit, alleging that the money, &e., were hers, and he had taken them in his lifetime: Held, that although McBride’s possession was originally tortious, the plaintiff might waive the tort and recover for money had and received for her use.</p> <p>2. It was an action to establish a debt against McBride’s estate properly brought in a common-law court, not Involving any question as to the amount of McBride’s estate within the exclusive jurisdiction of the Orphans’ Court.</p> <p>3. In the action by Sarah Lusk’s administrator against McBride’s administrator, the children of her deceased brothers and sister were not competent as witnesses under the Act of April 15th 1869, the suit being between administrators.</p> <p>4. The witnesses did not claim by devolution under a deceased owner respecting his right; but from two parties whose rights were adverse.</p> <p>5. Sarah was sister of Isabella, McBride’s wife, who survived her and died before McBride: Held, that evidence of declarations of McBride that Isabella was not his wife, were irrelevant, Sarah’s administrator suing to recover her property.</p> <p>6. A number of the Lusk brothers and sisters, including Sarah and Isabella — and McBride after his marriage — lived together on the farm of their father, until their respective deaths, intestate and without issue. Evidence of their ownership of property thirty years or more previously to Sarah’s death was admissible on the question whether she owned property in the house at her death.</p>

<p>Error to the Court of Common Pleas of Lycoming county: Of January Term 1875, No. 198.</p> <p>This was an action of assumpsit, brought April 19th 1873 by Augustus Richter against the city of Williamsport.</p> <p>On the 25th of June 1872, the president of the board of health of Williamsport appointed the plaintiff and another physician to take care of patients at the small-pox hospital.</p> <p>At a meeting of the board of health held December 17th 1872, the plaintiff submitted his bill, amounting to $460.18. The board resolved that the bill be allowed and the clerk be directed to draw an order for it. The council of the city refused to pay it, on the ground that it was excessive; this suit was brought for its recovery.</p> <p>The board of health of Williamsport was created by Act of April 4th 1872, Pamph. L. 950, as follows:—</p> <p>Sect. 1. “The city council of the city of Williamsport shall annually * * * appoint a board of health for said city, to consist of one member from each ward, at least two of whom shall be practising physicians.</p> <p>“ Sect. 2. That the city council of said city shall have power to remove any or all of the members of said board of health whenever said council shall deem it expedient so to do, and to fill vacancies occurring in said board by death, resignation, removal or otherwise.</p> <p>“ Sect. 3. * * * That the city clerk and treasurer of said city shall be ex officio clerk and treasurer of said board; and the said treasurer shall pay, out of the fund appropriated for that purpose by the city council, all orders drawn on him by the president of said board, attested by the clerk. * * *</p> <p>“ Sect. 10. Said board shall employ all such persons as shall be necessary to enable them to carry into effect the provisions of this act, and the regulations they shall adopt arid publish, and fix the compensation of persons so employed. * * *</p> <p>“ Sect. 12. The expenses incurred by the said board, in the execution of their duties, shall be chargeable upon the said city of Williamsport, and the city council shall annually make provision for the payment of the same, and fix the salaries to be paid to the members and officers of said board.”</p> <p>The case was tried February 8th 1875, before Gamble, P. J.</p> <p>The plaintiff gave in evidence the minutes of the board of health showing their action on the plaintiff’s bill as above stated; and also his bill as allowed by the board. He then closed.</p> <p>The defendants called Dr. W. H. PI. Miller, who testified that he had been a practising physician for about twenty years.</p> <p>Defendant’s counsel proposed to ask witness what are the usual charges, by reputable physicians practising in the city of Williams-port, for medical attendance on small-pox patients, and what the witness received from the defendant for the same kind of 'services rendered by the plaintiff. This for the purpose of showing that the charges made by the plaintiff, as appears from the bill in evidence, are exorbitant, excessive, and much greater than the same services are charged for when rendered to private persons.</p> <p>Plaintiff’s counsel objected, because the board of health of the city of Williamsport have regularly audited the bill of the plaintiff, and fixed, by a resolution of said board, the compensation due him, and said city, defendant, is bound by the action of the board of health.</p> <p>The court rejected the offer, and sealed a bill of exceptions.</p> <p>The verdict was for the plaintiff, for $529.90.</p> <p>The defendant assigned for error the rejection of the offer of evidence.</p>