Volume 82 — Pennsylvania State Reports

<p>1. After protracted litigation in partition and an allotment of the estate to one of the parties an auditor was appointed to fix the amount of fees to he paid to plaintiffs’ counsel, to be taxed as a part of the costs, under the provisions of the Act of April 27th 1864, who reported §2500 as a proper allowance, which report the court confirmed. Meld, that counsel fees in the ordinary sense as compensation for services in contested causes were not contemplated by the Act of 1864, but that the services for which the statute meant to provide were searches, formal motions, and the preparation of papers and conveyancing.</p> <p>2. An order of the Common Pleas for the payment of counsel fees is in the nature of a final judgment and subject to review by the Supreme Court, but the proper form to bring the matter m controversy before this court for review is by writ of error and not by appeal.</p> <p>3. It seems that in a proper case, where the equity of the party who seeks relief is clearly made out, where no adversary rights can be impaired, and where it affords the only means of averting an injustice, all the effect of .a writ of error may be given to a certiorari.</p>

<p>Barr made a written application, on May 3d 1870, to the Farmers’ Mutual Fire Insurance Company, for insurance against fire for three years from that date, and a policy was duly made out in accordance therewith, bearing date May 3d 1870. The receipt given to Barr for the amount of the premium was dated May 31st 1870, and there was evidence tending to show that the insurance was to be for three years from May 31st 1870. A part of the property insured was destroyed by fire on May 19th 1873. Judgment creditors of Barr issued an attachment in execution and summoned the insurance company as garnishees. At the trial, evidence was given in behalf of the garnishees tending to prove that the date of this receipt had been altered from May 3d 1870 to May 31st 1870. The court charged that there was no evidence to show such alteration, and took the .consideration of that question from the jury: Held to be error.</p>

<p>1. After the approval of an Act of Assembly incorporating a company, conditional subscriptions to the capital stock of the company are valid, and this though made before letters patent are issued, the company having afterwards fulfilled conditions necessary to their issuance.</p> <p>2. It may be shown by the acts and declarations of the party making a conditional subscription that there has been a release or waiver of the conditions, the fulfilment of which entitled the company to a recovery at law, and it is error to refuse testimony of such character.</p> <p>3. Where the act of incorporation of a railway company provided that the minimum capital should be 5000 shares of $50 each, with the privilege of increasing, and that it might be subscribed for or disposed of “ in whole or in part, from time to time, as the board of directors may think proper,” and clothed the company with full powers of a corporation upon a subscription of ten per centum of its capital stock and payment of one dollar per share, it is not necessary that the whole amount of- the minimum capital should be subscribed to enable the company to recover from subscribers.</p> <p>4. Where the condition of a subscription of stock was that the amount thus subscribed should be devoted to the building of a designated portion of the railway and paid when the sum of §100,000 shall have been subscribed for that purpose, and the act of incorporation provided that subscriptions may be valid, by the party making the same, on the payment of one dollar to the commissioners for each share for the use of the company; and when ten per centum of the capital stock shall have been subscribed and one dollar paid on each share, letters patent should issue, such conditional subscription being within the power of the corporation to take, the stock contract, with the loss of its absolute character, lost the incident of partial payment, and such partial payment is not necessary to enable the company to recover.</p> <p>5. Any cause which may work a forfeiture ol the charter of a company is not the subject of inquiry collaterally, and is not matter of defence to an action brought by the company upon a subscription to the capital stock.</p>

<p>Error to tbe Court of Common Pleas of Lancaster county: Of May Term 1876, No. 69.</p> <p>This was an action of assumpsit, brought by David Shultz against The American Life Insurance and Trust Company to recover damages for the refusal on the part of the company to issue to him a paid up policy, after the payment of the third premium upon a life policy effected.</p> <p>The defendant company pleaded non assumpsit and payment with leave, &c., non assumpsit infra sex annos.</p> <p>Elisha Geiger was the agent of the company at Lancaster, and some time in the spring of 1866, upon his solicitation, Shultz signed an application for a mutual policy for the sum of $10,000 for the benefit of his wife.</p> <p>The terms for one of Shultz’s age were $81.80 per thousand per annum, with the provision that “ when the premium amounts to $50 or more, annually, one half may be paid in a note at twelve months with interest.”</p> <p>Shultz elected to avail himself of this provision, paid in cash $409, and gave his note payable in twelve months for $409 with interest. This was done each year, and the interest on the notes added to the cash payments of each year.</p> <p>Shultz alleged that Geiger said, when he made the application, whenever Shultz would pay up the third payment he could get a paid up policy for the premiums he had paid, and get dividends out of the concern whatever it would pay.</p> <p>Shultz also alleged that when Geiger brought him the policy and he made the payment, Shultz refused to take the policy because it was not according to the contract. Geiger replied, “ If you don’t take the policy, we will keep your money; you can’t get your money back; you had better go on and pay up the third payment and then you will get your paid up policy.”</p> <p>Geiger died soon after and Mr. Gara was appointed agent. Sub? sequent to the first transaction as above detailed, all of the business was conducted by Gara. Shultz continued his payments until after the third payment. Before this payment he told Gara he would demand a paid up policy; written on the back of an advertising card of the company signed by Gara, was “After this payment, you can get a paid np policy for the whole amount you have paid.” After several months and repeated solicitations Gara told him the company had changed their rules and -he could not get it.</p> <p>The fourth and fifth premiums were paid because he was told he would lose all he had paid. After the fifth, the premiums were paid under protest that they were paid because he did not wish to run the risk of forfeiture.</p> <p>On the 12th of December 1873, after making eight payments of $409, which, with the interest paid on the notes, amounted to $3869.01, he brought suit; the jury, finding for the plaintiff, awarded that amount as damages for the breach of the contract.</p> <p>On the trial of the cause the plaintiff offered himself as a witness, and was objected to because Geiger, the agent for the company, with whom the contract of insurance was made, was dead. He was admitted and this was the first error alleged.</p> <p>The defendant below offered to prove the powers of the agents of the American Insurance Company, and again what were Geiger’s powers during the alleged contract, both of which were rejected, and are the 2d and 3d errors.</p> <p>The defendant offered to prove “ What were the rates in 1866 for such a policy as Mr. Shultz testifies Geiger agreed he should have,” which was rejected, and is the 4th error.</p> <p>The 5th and 6th assignments of error are contained in the 7th.</p> <p>7th error. Instruction. “ If you find that it was part of the original contract for the policy, that after paying the third payment, the plaintiff would get a ‘ paid up policy ’ if he required it, and that the plaintiff was induced to sign the proposals by the representation of the agent of the company, that that condition would be part of and contained in the written contract, in the proposals when he signed them, and paid the first premium on the policy, and was omitted from the policy, and when the agent came to deliver the policy Shultz said he would not receive it, because it was not according to contract, and the agent replied, ‘ If you don’t take the policy we will keep your money; you can’t get the money back, &c.; further, you had better go on and pay up the third payment, and then you will get your policy, a paid up policy,’ then this omission of the special contract alleged should not be attributable to any fault of the plaintiff and you should find for the plaintiff whatever premiums or money he has paid, without interest; the plaintiff asks no more in this suit.”</p> <p>The 8th and 9th assignments were to the measure of damages “ the money paid” with 7th.</p> <p>The remaining assignments were to the answers to the defendant’s points.</p> <p>10th. 1st point. The acceptance of a policy agreeing with proposals signed, the retention of it and payment of premiums for some years without objection, debars disaffirmance of the contract and recovery of premiums paid. Affirmed with the qualification that a verbal promise made by the agent to obtain insurance and execution of the proposals, contemporaneously with the original contract, may be given in evidence to the disaffirmance of the contract in the proposals and policy.</p> <p>11th. 2d point. No suit can be brought to recover premiums paid until the policy has been delivered to the company. Affirmed if the jury find that a paid up policy was never demanded, or tendered on condition such demand be complied with, or tender refrained from because of the refusal to give a paid up policy.</p> <p>12th. 3d point. Payment of premium without objection for years without demand for a non-forfeitable policy, was in law a ratification and acceptance in its present form of the policy, and precludes recovery. Affirmed if plaintiff since its date paid premiums without making such demand, the alleged original special contract to deliver a paid up policy after the third payment would be deemed in law abandoned, and preclude recovery, this in submitting a question of fact of which there was no evidence.</p> <p>13th. 4th point. Local agents have no authority to .conclude absolutely a contract of insurance, nor can they alter one already made which the court declined to affirm, as assuming a fact not proved by any evidence in the case.</p> <p>14th. -5th point. If the contract was broken, it was broken when the policy of insurance was delivered, and action is barred by the Statute of Limitations. Negatived. The statute would not commence running until payment of third premium.</p> <p>15th. 6th point. No evidence can be given of the contract except the policy of insurance, unless on ground of fraud, accident or mistake. Negatived.</p> <p>16th. 7th point. Under the law and evidence defendant entitled to verdict. Negatived.</p>

<p>Error to the Common Pleas of York county: Of May Term 1876, No. 8.</p> <p>This was an action of assumpsit, brought by Granville Hartman against Jacob Hossler.</p> <p>Jacob Hossler had obtained a judgment in the Court of Common Pleas.uf York county, against Jonas Hossler, entered by virtue of a warrant of attorney, on 4th of August 1869, for the sum of $300, with interest from date.</p> <p>Jacob Hossler assigned the judgment to Hartman by the following entry on the docket, “February 4th 1871. This judgment is now three hundred dollars with interest, from April 1st 1870. For value received I assign the same to Granville Hartman. Jacob Hossler.”</p> <p>On the 11th of April 1871, Jonas Hossler obtained a rule to open the judgment, which was made absolute, and an order on plaintiff in the judgment to file a declaration within twenty days, which was directed to be served on the plaintiff and Hartman, and in default thereof judgment of nonsuit was entered.</p> <p>Hartman brought this suit against Jacob Hossler in assumpsit to recover the amount he had paid him for the judgment, $265, and filed a narr. in the common counts, for money lent, paid, laid out and expended, had and received, and account stated, and at the same time filed an affidavit of claim, alleging that he had purchased the judgment for $265, and although Hossler had expressly declined to guarantee the judgment, he had assured him that it would be recovered from Jonas; that the judgment was perfectly good and all right, that the money was due; that there was no defence or set off, and it had been given for full value; that the assignment had been written with a guaranty, but was stricken out; that Jonas had applied to the court, alleging that the judgment was improperly obtained, without consideration, and that he did not owe the money; of this Jacob had notice, failed to sustain the judgment and it was avoided on the grounds set forth; that the deponent, Hartman, then demanded of Jacob $265, which he had paid him for the judgment, with interest, and Jacob refused.’</p> <p>The narr. and affidavit of claim were on separate pieces of paper. The prothonotary filed the narr. in the usual place for them, and the affidavit in a pigeon hole labeled “affidavits,” though it was usual to file them together.</p> <p>■ The docket entry of this was, “ April 20th 1872, affidavit of plaintiff of cause of action filed, same day narr. filed.”</p> <p>May 23d 1872, judgment was entered sec. reg. for $284.52, for want of an affidavit of defence, liquidated by the prothonotary.</p> <p>A rule was obtained to show cause why judgment should not be opened on the ground,</p> <p>1. That, the affidavit was not filed with the narr.</p> <p>2. The affidavit did not disclose such cause of action as came within the rule allowing a judgment to be taken for want of an affidavit of defence.</p> <p>The rule of the Court of Common Pleas of York county is as follows:—</p> <p>“ The judgment to be taken for want of an affidavit of defence under the provision of the 1st sec. of an act entitled ‘ An Act in relation to pleading, &c., approved 9th April 1868, may be entered in the prothonotary’s office as of course at any time after the expiration of thirty days, from the returning of the writ, or the service of the notice mentioned in said section, on compliance with the provisions of said section, the judgment to be liquidated when necessary, and entered by the prothonotary in like manner as in open court.’ The words of the act in point are £ on claims for the loan or advance of money, whether the same be reduced to writing or not,’ ‘and on contracts for the loan or advance of money not in writing, an affidavit setting forth the terms of said loan or advance, with date and amount thereof, the plaintiff shall * * * file in the office of the prothonotary with his declaration or statement.’ ”</p> <p>The court below, Fisher, P. J., refused to open the judgment because the defendant had not disclosed a defence, and held that the action was within the rule.</p> <p>Error was assigned,</p> <p>1. To the entry of the judgment for want of an affidavit of defence.</p> <p>2. To the discharge of the rule.</p> <p>3. To the ruling that the plaintiff could take judgment for want of an affidavit of defence.</p>

<p>1. Where a wife purchased the real estate of her husband at a sale of the same by the sheriff, the title vested in her as her separate estate, though she had no estate before marriage, nor did any accrue to her from any other source than through her husband, or her own earnings, during coverture.</p> <p>2. Purchase by the husband in the name of the wife is presumed to be a gift to her, and her title cannot be attacked on the ground of a conveyance in fraud of creditors by others than creditors, nor as a trustee by reason of the payment of the purchase-money, inasmuch as she did not stand in the relation of a stranger.</p>

<p>1. Upon a question of fact raised as to whether a party plaintiff had agreed to look to the maker of a note and not call upon his co-endorsers, representations made by the plaintiff as to the means of the maker, are relevant and admissible.</p> <p>2. Where a party to a suit is a witness in his own behalf, his admissions out of court, though contradicting his evidence, may be proved, without first calling his attention to them, as in the case of other witnesses.</p> <p>3. Where a sale of land is consummated by payment of the consideration and delivery of the deed, there can be no recovery for deficiency without proof of fraud or mutual mistake. Deficiency, if it be very great, though evidence of fraud, is not of itself sufficient.</p>

49. _ _ _ _ Assumpsit by John Berkheimer against Solomon and Daniel Geise, administrators of John Geise, for services rendered to him during his last illness, and for services at his funeral.

<p>1. Parol evidence is inadmissible to show that the entry of an award of arbitrators in the judgment docket, was interlined at a time subsequent to the time of filing, as it appeal’s of record.</p> <p>2. An auditor for distribution cannot go beyond the record of liens, to inquire in what order of time judgments and awards shall have been actually entered and filed, but is bound, by the entries as they are made in the iuda:ment docket.</p> <p>3. Upon an application to amend or alter the record, to grant or deny rests within the sound discretion of the court whose rocordi it is, and is not the subject of an appeal.</p>

<p>1. Where a ease is submitted to a jury upon clearly insufficient evidence, such as no court ought to sustain a verdict upon, this court will reverse.</p> <p>2. It is the duty of the court to determine the sufficiency of evidence of testamentary incapacity, and it is error to submit the question to a jury unless it be sufficient.</p> <p>3; It is error to submit to the jury matter of which there is no evidence.</p>

<p>Error to the Court of Common Pleas of Perry county: Of May Term 1876, No. 56.</p> <p>R. H. Wright as principal, and Samuel Smith and Charles Wright as sureties, executed three notes in the following form:—</p> <p>“$275.00. , New Bloomfield, February 27th 1873.</p> <p>Six months after date, for value received, we or either of us promise to pay to Grover & Baker S. M. Co., two hundred and seventy-five dollars, with interest and without defalcation or stay of execution. And we do hereby confess judgment for the above sum with interest and costs of suit, a release of all errors, and waiver of all rights to inquisition and appeal, and to the benefit of all laws exempting real or personal property from levy and sale.</p> <p>Witness, II. W. Tecicmeyer. R. H. Wright, Samuel Smith, Charles Wright, seal. SEAL.’ SEAL.’</p> <p>The other two notes were similar, except that the one given had written across its face twice “paid,” and the third one was for the sum of $277.95.</p> <p>On the first note Smith claimed $137.50 as due from Wright as co-surety ; on the second $54; and on the third $12.37, respectively. Smith had paid the balances left due, and unpaid by the principal, „ It. H. Wright, had lifted the notes, and himself caused judgments to be entered in the Court of Common Pleas of Perry county, to Nos. 219, 220 and 221, October Term 1874, using the name of the payee as the legal plaintiff for the use of him, the said Samuel Smith, and against It. H. Wright, Samuel Smith and Charles Wright, as defendants, and directed executions to be issued thereon, upon which levy was made upon the goods of Charles Wright.</p> <p>Charles Wright presented his petition, upon which a rule ivas granted on Smith to show cause why the judgments should not be stricken from the record, and the executions were stayed.</p> <p>The court below, Junkin, P. J., afterwards dissolved the injunctions staying the executions, refused to strike off the judgments and discharged the rules.</p> <p>The court below held, that a co-surety, before judgment was entered, could pay off the whole, and then use the obligation in the same manner, and just as the obligee could have done before the payments.</p> <p>It was assigned for error, that the court dissolved the injunctions staying the executions, refusing to strike of the judgments and discharging the rules.</p>

<p>1. To take a case out of the Statute of Limitations there must be an acknowledgment of the debt, as an existing obligation, consistent with a new promise to pay it, or an express promise to do so.</p> <p>2. Since an acknowledgment is of less force than a promise, there must be a present intent to pay, fairly to be inferred from the language used, at the time the acknowledgment is made, though the time of payment be not immediate.</p> <p>3. A promise to pay the balance, when the pro rata from the principal debtors estate was paid, is not a promise to pay the whole debt, though it was shown that there was no dividend declared.</p>

<p>Error to the Common Pleas of Cumberland county: May Term 1876, No. 65. _</p> <p>_ Ejectment, begun August 14th 1874, by Caroline and Emma K. Ege, Joseph B. Haverstick and Emma his wife in her right, S. -Kate and George F. Ege, Robert and Charles Ege by their guardian, Joseph B. Haverstick, and Elizabeth Given, against Frank B. Medlar, Frederick Roberts, Henry Ward and the Mount Holly Paper Co., for a tract of land known as the Moses Foulke tract, situate in South Middleton township, containing 283 acres and 40 perches, more or less. Plea, not guilty.</p> <p>The plaintiffs claimed title as children and grandchildren of Elizabeth Ege, wife of George Ege. The defendants claimed under George Ege, by a sheriff’s sale of his property and certain mesne conveyances, and under the Statute of Limitations. Medlar, Roberts and Ward were tenants in possession upon whom the writ was served, and on the day of the trial the Mount Holly Paper Company was admitted as landlord to defend for forty acres and forty-two perches of the land described in the praecipe. The plaintiffs excepted to allowing the company to defend unless on the issue already formed.</p> <p>■ Evidence for the plaintiffs.</p> <p>The tract is shown in the annexed draft:—</p> <p> </p> <p>(Draft of the Moses Eoulke tract, showiug the line of the old and new fences and the old line of houses at the ore bank.)</p> <p>1. Application by Stephen Eoulke for 800 acres of land for Moses Foulke, January 28th 1767, and a survey in pursuance thereof for 283 acres and 40 perches, as- described in the writ in this case.</p> <p>2. Deed, Stephen Eoulke and wife to Kittera,Jago and Boyd, dated June 17th 1795, for, inter alia, the same tract. _</p> <p>3. Deed, Eobert Grayson, sheriff, to Michael Ege for, inter alia, the same tract, dated June 1st 1803, and as the property of Kittera, Jago and Boyd.</p> <p>4. Deed of trust, dated June 2d 1815, and recorded June 7th 1848, Michael Ege to John Miller, for the Moses Eoulke tract and six other tracts, in trust for Elizabeth Ege, wife of George Ege (one of the sons of Michael Ege), “ her heirs and assigns for ever, and for her and their sole and separate use and benefit, with full power in said trustee, together with Elizabeth Ege or her heirs consenting and joining with said trustee, to sell and convey in fee simple, the whole, &c., of said property, &c., the proceeds thereof to be paid to Elizabeth Ege, for her sole and separate use, to be used and disposed of as she may think proper, either by will, deed or otherwise.”</p> <p>The certified copy of this deed, which was put in evidence, purported to have been duly signed and sealed, and delivered by Michael Ege, in presence of George D. Eoulke and George Pattison; it bore a certificate of acknowledgment by the grantor, of even date with the deed itself before a justice of the peace, and probate was made of it on affirmation by George D. Foulke, a few days before the deed was recorded. The original deed was not produced at the trial, nor was any attempt made to explain its absence or loss.</p> <p>5. Family record, showing that the plaintiffs were the heirs at law of Elizabeth Ege, and that she died December 6th 1848, and George Ege, her husband, died February 11th 1858.</p> <p>The plaintiffs (after putting in evidence the writ of ejectment in the case) placed in evidence proceedings in partition of the real estate of Michael Ege, deceased, in 1816, in which fifty-nine tracts were specified by the warrantees’ names, but no mention was made of the Moses Foulke tract in question. In these proceedings the Mount Holly Estate, adjoining this tract and containing over 6000 acres, was awarded to George Ege, by the names of the warrantees and the number of acres warranted to each of them. Plaintiffs then offered the abstract- of title furnished by the defendants under rule of court, to show that the defendants admitted that the title to the lands in dispute had been in Michael and George Ege, and that they claimed title under both of the latter and for a portion only of the Holly Furnace Estate. This offer was refused and a bill sealed for the plaintiffs.</p> <p>Plaintiffs proved triennial assessment of Holly Estate in name of Michael Ege, up to 1814.</p> <p>The defendants, for the purpose of showing that Michael Ege never executed the deed of trust to John Miller, offered to show that the George Ege tract, purporting to be conveyed by that deed, was not surveyed until 1844 (the survey showing the identical courses and distances, and quantity of land shown by the trust deed), that by a deed dated June 2d 1815, which George Ege refused to accept, and which Avas therefore never delivered, Michael Ege intended to convey to George Ege this latter tract, therein called the James Love tract, and that this latter tract was awarded to George Ege, by the above proceedings in partition, to be followed by other evidence inconsistent with the genuineness of the trust deed. This offer was sustained and a bill sealed for the plaintiffs. Defendants gave evidence to prove these facts, and then offered to show that the James Love tract and the George Ege tract were the same tract. Plaintiffs objected, the evidence was admitted and bill sealed for plaintiffs. (This Avas the subject of the fourth assignment of error.) The defendants then gave evidence tending to show that the James Love tract was the same as the George Ege tract. It further appeared that the same description as that contained in the deed of 1815, with the exception of a single line, appeared in the above deed of Stephen Foulke to Kittera in 1795.</p> <p>The defendants then offered a judgment of Farmers’ and Mechanics’ Bank against George Ege, and an amicable agreement thereunder for condemnation of the forge and furnace estate of Mount Holly Iron Works, containing about 7689 acres, by a description including within its exterior lines the Moses Foulke tract, the description being only by outside boundaries of adjoining owners; also, a sheriff’s sale thereunder, and a subsequent sheriff’s deed dated August 20th 1888, to the bank for the lands mentioned in the condemnation.</p> <p>They then proved the following deeds: (1) Farmers’ and Mechanics’ Rank to Geisse & Kropff for the Mount Holly Iron Works Estate, as described in the condemnation, July 1st 1846; (2) Kropff to Geisse for' his interest therein; (3) Sheriff to Farmers’ and Mechanics’ Bank for the same (sold as the property of Kropff & Geisse) November 19th 1849; (4) Farmers’ and Mechanics’ Bank to Freedly for the same, September 30th 1851; (5) Freedly’s executors to Given for the same, March 10th 1852; (6) Given to Kempton for about 1000 acres, part of the Mount Holly estate; (7) Kempton to the Mount Holly Paper Co., for the same, August 13th 1858, embracing the lands in controversy, July 14th 1868; (8) Leases by the Paper Co. to the tenants in possession.</p> <p>George Ege carried on the Mount Holly Iron Works, of which the Moses Foulke tract constituted a part, during the lifetime of his father, from the early part of 1815 to the date of the sheriff’s sale in 1838.</p> <p>Part of the land claimed was situated close to the furnace, and had always been called the “furnace field;” this contained about fifteen acres, partly situated upon the Moses Foulke tract and partly upon the Mount Holly land; it- was enclosed by a fence. There was also a row of small houses partly on this tract (as shown in the draft) usually occupied by the men employed at the furnace. This field was enclosed and cultivated from 1838 down to the bringing of this action, by the owners of the furnace property. There was evidence to show that the owners from time 'to time took out large quantities of ore from the ore-banks west of the “furnace field,” for the furnace, as early as 1846, and from then to 1855. After 1855 the ore-banks were worked by various lessees under Given, and the Paper company. There was also a spring of water west of the “furnace field,” which was used in washing ores.</p> <p>Kropff testified that he went into possession of the furnace field in 1846, and cultivated it; and that he took ore out of the western ore-bank, and used the woodland in the rear of the ore-bank for firewood. That the “ furnace field” was kept enclosed and cultivated till he left there in 1848 ; that all the lands within the exterior lines of the map of the above draft were occupied and used by him and his partner when they were there.</p> <p>Cross-examined: The fence was east of the row of houses, when I was there; a worm fence; we kept it in repair while we were there. We used ore out of the drift for one and a half years. Cannot say that work was going on every day ; might have been interruptions. When we left, drift was open and work going on. Got ore from different other places. Didn’t know anything about the Moses Foulke survey. Cut timber over the whole estate just as we wanted it.</p> <p>In summing up, the plaintiff’s counsel offered to read the opinion of the Supreme Court in Kille v. Ege, 29 P. F. Smith 15, so far as applicable to the facts of this case, admitting that the jury were bound to accept the law as given to them by the court and to apply the facts of the case to the law as laid down by the court.</p> <p>Offer refused, and bill sealed for plaintiffs.</p> <p>The learned judge (Herman, P. J.) charged at length as to the evidence affecting the validity of the trust deed to John Miller; that the presumption of law was in favor of the deed and that it would require the most satisfactory proof on the part of the defendants to invalidate it. Further, that the Farmers’ and Mechanics’ Bank, and those who claimed under them, were in possession under a color of title and that therefore their possession was co-extensive with the title; but that by the deed from Given to Kempton of a tract including the forty acres and forty-two perches, the possession had been drawn in from the exterior lines to the new boundary, and after that all that part of the Moses Foulke tract outside of the land claimed by the Paper company, passed from the possession of those under whom the defendants claimed.</p> <p>[“ But the defendants have assailed the validity of this trust deed and contend that it never was executed and delivered by Michael Ege, Sr., but that it is a fraud and a nullity. Although purporting to have been executed and acknowledged on the 2d June 1815, it was not put upon the record until 7th June 1848 — thirty-three years afterwards — and this, in connection with the fact that the original is not to be found by any one in existence, the defendants say excites suspicion, and they have given evidence to prove certain things which they contend are wholly inconsistent with the genuineness of the deed and irreconcilable with its execution and delivery. There is no living witness to tell us anything about its execution or delivery. * * * On the other hand you have evidence tending to prove that the George Ege tract in the deed of trust, and the James Love tract in the proceedings in partition, are identical, and that the same is assigned to George Ege under the proceedings in partition, and also that a small portion of the Stephen Foulke survey is covered by the Moses Foulke survey, or rather overlaps or interferes with it. And this is relied upon to countervail the corroborating proof in support of the deed — that the whole seven tracts mentioned in the trust deed are omitted from the proceedings in partition. Then-you have the George Ege survey returned to the land office 2d May 1845, by Patrick Davidson, who was not appointed deputy surveyor until in 1883, certifying in his return that he made the survey the 11th and 12th December 1844. Showing that the courses and distances are identical with the description of the George Ege tract in the trust deed. And in connection with this you have the evidence of Esquire Evans and the connected draft made by him from the official surveys of the adjoining tracts to the George Ege tract, tending to show that no return of survey or that no courses and distances identical with those in the trust deed could be made up from them — or, in other words, that no chamber survey identical with that in the trust deed could have been made from drafts of the adjoining surveys.]</p> <p>[“ The defendants to prove their title have given in evidence a judgment, fi. fa. and levy by the Farmers’ and Mechanics’ Bank against George Ege, and an amicable condemnation given by George Ege on the fi. fa. of the forge and furnace estate called Mount Holly Iron Works, by a description including the lands in dispute, the description being by outside boundaries of adjoining owners. * * *</p> <p>“Although the Moses Foulke tract formed part of the lands described in the amicable condemnation given by George Ege, and seems to have been in his possession, along with the lands assigned to him, under the proceedings in partition, up to the time of the sheriff’s sale in 1838, yet he acquired no title as - against his wife to this tract, and consequently no title prejudicial to the wife’s estate therein passed to the purchaser at the sheriff’s sale ; but being actually a portion of the lands included in the description of the lands condemned by the amicable condemnation, and sold and conveyed by the sheriff’s deed to the bank, whatever possession the bank and the successive alienees under them down to the defendr ants have had, has been under color of title. An entry is by color of title when it is made under a bon& fide and not pretended claim to a title existing in another.</p> <p>“ Now the defendants have given evidence to shoAV that they, and those under whom they claim, have held the land in dispute by an enclosure and cultivation for the full statutory period. The furnace field spoken of by so many witnesses, is wholly on the disputed land, and the evidence shows pretty conclusively that they have kept it enclosed with a fence and used it for the ordinary and usual purposes of arable or farm land — cultivating it in grass and grain, taking from it the crops, and keeping it improved year after year, from 1838 down to the time of the commencement of this action. There is also evidence in the cause showing that they mined and took large quantities of iron-ore from the ore-bank west of the furnace field, known as the Wynkoop bank, from an early day, certainly as early as 1846, and used the ore to supply the furnace at such times as it was in operation, on down to 1855, when the furnace was finally closed out; and that since 1855 the ore-bank has been worked by different lessees at various times under Given and the Mount Holly Paper Company. Also that the spring of water West of the field was used by some of the tenants living-in the old log row, which stood on the west side of the field, and that the water from the spring was used at different times for washing ore.</p> <p>“ There is sufficient evidence in the cause to submit to you on the question of adverse possession, * * * we say to you that the possession by enclosure and cultivation of that part of the Moses Eoulke survey known as the furnace field was co-extensive with the bounds of the survey; but the very moment new boundaries were defined, by the conveyance of Given to Kempton of the forty acres and forty-two perches now defended for by the Mount Holly Paper Company, and which includes the furnace field, that very moment the possession was drawn in from the outer lines to the lines of the new boundary, and thenceforth all that part of the (Moses Eoulke) survey outside of the boundaries of the land claimed by the Mount Holly Paper Company, passed from the defendants’ possession.”]</p> <p>[“ If you find that they have so held the adverse possession, you ' will render your verdict for the plaintiffs against Frank B. Medlar, Frederick Roberts and Henry Ward, three of the defendants, for the land described in the praecipe, except that portion containing forty acres and forty-two perches, contained and embraced within the boundary lines of the Mount Holly Paper Company’s claim, which is described in the application and draft filed in this case by said company at the time they were admitted as co-defendants to defend for the part described in said application and draft.]</p> <p>The following are some of the points presented by the plaintiffs and the answers to them:—</p> <p>4. Taking all the evidence given by the defendants and admitted by the court, touching the execution of the deed of June 2d 1815, viz.: that upon the warrant of July 30th 1814, to George Ege, the deputy-surveyor made a return, accepted 2d May 1845, that he surveyed the tract on December 11th and 12th 1844; and that his survey is by the same courses and distances, and for the precise quantity of land by which it is described in the deed of trust; that the Love tract and the George Ege tract are located upon the same ground; that the Stephen Foulke tract and the Moses Foulke tract, as described in the two deeds dated July 2d and July 3d 1815, interfere with each other; there is nothing which would warrant the jury in inferring fraud in the execution and delivery of the said deed of trust.</p> <p>The evidence of the execution, &e., of the deed being positive and direct; while the inference drawn from the facts above stated are based merely on a presumption.</p> <p>'Answer. “ We have submitted this evidence to you and it is for you to determine from all the evidence in the cause the genuineness of the trust deed. But we say to you that the law presumes from the recorded deed as it appears, both execution and delivery, and to overthrow the deed the evidence must satisfy your minds that it is a fraud or that it was never delivered.”</p> <p>7. The trust declared by Michael Ege in his deed of 2d June 1815, to John Miller, creates an equitable estate in fee in Elizabeth Ege, and there is nothing in the trust deed to prevent its descent as a fee under the laws regulating descents, and these defendants claiming otherwise must shoiv that they have a written title from Michael Ege, the deceased, by which it came to them; and not having shown any such title, there is nothing to exclude the surviving husband of Elizabeth Ege from his rights as tenant by the curtesy; and as George Ege did not die until 1858, and this suit was brought in 1874, the possession shown by defendants for a portion of the land in dispute amounts to nothing, and plaintiffs are entitled to recover the whole of the land described in the writ.</p> <p>' Answer. “We cannot answer this point as requested. * * * The trust, it will be perceived, is not only for the sole and separate use of the wife, but also for the sole and separate use of her heirs, and confers upon the trustee power to sell and convey — the said Elizabeth Ege or her heirs consenting and'joining — and with power in her to appoint another trustee or trustees, on the death of the trustee named in the deed. The intention of the grantor is apparent to our mind that the husband was to be excluded from all interest as tenant by the curtesy. We therefore refuse to affirm this point, and say to you that under the terms of the deed George Ege had no curtesy.”</p> <p>9. The possession shown by the defendants of the old furnace field is not such adverse, continuous and hostile possession for twenty-one years as gives title by the Statute of Limitations; and even if it were, the statute did not commence to run against the plaintiffs in this case until after the death of George Ege, which occurred in 1858, not twenty-one years prior to the bringing of this suit, and therefore plaintiffs are entitled to recover the old furnace field, with the other lands included in the writ.</p> <p>Answer. “ This point is refused. Having decided that George Ege had no curtesy in the lands contained in the trust deed, the title of the defendants by adverse possession under the Statute of Limitations, has been' established, if the evidence satisfies you that they and those under whom they claim have been in actual, adverse, visible, notorious and continued possession of the land in dispute, or any part of it, either by cultivation or enclosure, for the period of twenty-one years next preceding the time of bringing this suit. We cannot say, as requested, that the possession shown by the defendants of the old furnace field is not such adverse, continuous and. hostile possession for twenty-one years as gives title by the Statute of Limitations. We think the adverse possession required by the statute of the old furnace field by the defendants and those under whom they claim has been very clearly proved.”</p> <p>The jury found a verdict for the plaintiffs against Frank B. Medlar, Frederick Roberts and Henry Ward, three of the defendants, for the land described in the praecipe, except that portion containing forty acres and forty-two perches contained and embraced within the boundary lines of the Mount Holly Paper Company’s claim, which is described in the application and draft filed in the case by said company at the time they were admitted as co-defendants to defend for the part described in said application and draft, and six cents damages.</p> <p>Judgment upon the verdict.</p> <p>The plaintiffs below took this writ of error, and made twenty-four assignments of error, of which the following are important:—</p> <p>The court erred,</p> <p>1. In allowing the Mt. Holly Paper Company to appear, when the case was called for trial, to defend as landlords, and to limit their defence to a small portion of the land embraced in the writ.</p> <p>2. In rejecting plaintiffs’ offer of the abstract of title furnished by defendants.</p> <p>3 and 4. In admitting the evidence given above of the identity of the George Ege and James Love tracts.</p> <p>10. In refusing to charge as requested in the plaintiffs’ fourth point.</p> <p>12. In the answer to plaintiffs’ seventh point.</p> <p>13. In the answer to plaintiffs’ ninth point.</p> <p>21, 22 and 23. In the parts of the charge respectively enclosed in brackets above.</p> <p>24. In refusing to allow the plaintiffs’ counsel to read to the jury the opinion of the court in Kille v. Ege.</p>

<p>Error to the Court of Common Pleas of Cumberland county: Of May Term 1876, No. 101.</p> <p>. This was an action "of. trespass for mesne profits, brought by Caroline Ege, John W. Ege, Emma K. Ege, Joseph B. Haverstick and Mary C., his wife in her right, S. Kate Ege, George T. Ege, Robert S. Ege and Charles R. Ege, minors, by their guardian, Joseph B. Haverstick, against Charles Wharton and John T. Kille.</p> <p>The lands of which the mesne profits were claimed were recovered in an action of ejectment, brought on the 7th day of June 1872, by William Cox and others, against Edward Noble and others (see 29 P. F. Smith 15), in which action the parties plaintiff in this suit, the heirs of Elizabeth Ege, deceased, were admitted as plaintiffs, on the 24th of April 1874, and John T. Kille admitted to defend as landlord on the 12th of October 1874. The original plaintiffs were nonsuited .and’a verdict was found for the,new parties plaintiff on the 16th of October 1874, and possession given them on the 26th of same month.</p> <p>The mesne profits claimed were those derived from the ore mined and carried away from these lands by the defendants and their lessees, and the rents received by Kille under leases.</p> <p>It appeared that Kille, who claimed to own the lands in 1869, through his agent, Wharton, opened an ore bank thereon, and between November 1869 and October 1870, mined, carried away and sold ore to the value of $6950.55.</p> <p>That, on. the 21st of October 1870, Kille leased to the firm of Grinterman & Robertson a portion of these lands for a term of fifteen years, in which the firm bound themselves to mine a certain quantity of ore, and to pay to Kille 75, and after July 1st 1871, 50 cents per ton royalty thereon, and that, under this lease, from January 1871 to August 1874, Kille received a royalty of $6941.61.</p> <p>From another lease of a portion to James Lanagan, for a like term, the stipulated royalty being 50 cents per ton, Kille received between the 2d of July 1872 and 30th of September 1874, the sum of $6009.03. . ‘» ...</p> <p>On the 30th of January 1873, he leased to Seyfert, McManus & Co., 75 acres, for a term of fifteen years, at an annual rental of $2000, and 50 cents per ton royalty on every ton of ore mined and carried away in excess of 4000 tons. On this lease Kille received one year’s rent, $2000, but it was admitted that no ore was taken from the leased premises.</p> <p>Plaintiffs gave in evidence the record in the ejectment suit, and then proceeded to show how long the defendants had been in possession and the profits made by them from the lands.</p> <p>The defendants contended that the action of ejectment did not exist as to the Ege heirs .until the time they came upon the record, April 24th 1874, and that if the plaintiffs were permitted to show mesne profits anterior to this time, the defendants might show their title to the land as to such anterior profits. They also contended that plaintiffs had no claim to the rent paid by Seyfert, McManus & Co., and that defendants should be allowed for the improvements made upon the lands.</p> <p>The questions raised in the case will appear from the following rulings of the court below, upon the admission of evidence, the answers to points and charge to the jury:—</p> <p>The defendants offered to show by certain conveyances and drafts the location of the lands, and what portion of them claimed in the action of ejectment were embraced in the leases in question, for the purpose of showing title in the defendants in this case to the land for which mesne profits were sought to be recovered, prior and up to the time the plaintiffs proceeded in ejectment for its recovery, and in answer to their claim for mesne profits prior to said action.</p> <p>The court said: “ The offer proposes to go into the question of title prior to the action of ejectment. Now the record and proceedings, and record of trial in the ejectment, show that the same evidence of title was then introduced by the defendants on the trial and passed upon, and that the title on which the plaintiffs recovered extended far beyond the time within which, in this action, mesne profits are claimed. To admit the evidence would be simply to start upon a re-trial of the same questions as those actually tried and determined in the ejectment, and nothing more. We can discover no good or legitimate purpose in doing this, in the trial for mesne profits.</p> <p>“That part of the offer which proposes to go into the question of title is therefore rejected. But so much of the offer as proposes to prove that any part of the profits claimed was taken from land not embraced within the limits of the land recovered in ejectment, is admitted.”</p> <p>Defendants excepted, and bill sealed.</p> <p>Defendants then offered certain deeds of lands, and the considerations paid therefor, for the purpose of showing that defendants were boná fide purchasers in possession under title, or color of title, and to be followed by evidence of permanent improvements to the property, of which the plaintiffs seek to recover mesne profits.</p> <p>The court said: “ By reference to the record of the trial in ejectment, it will be found that the same deeds of conveyance were then introduced 'in evidence and passed upon, and we do not think it will aid us any in this trial to re-try the same questions then raised and passed upon. So far as the offer is to prove color of title, it is rejected, but so far as the offer is to show permanent improvements made by the defendants on the property, it is admitted.”</p> <p>Plaintiffs and defendants excepted, and bills sealed.</p> <p>E. E. Haskill, a witness on the stand, having stated that he had known the country where the ore banks of Ginterman & Robertson and Lanagan are located since 1838, and that he had been in the iron and ore business since 1856, the defendants proposed to prove by him the value of the land upon which these banks are located, with the knowledge that there was ore in it, but undeveloped, and what the value of it is now, with the improvements for mining ore erected on it, and this for the purpose of showing to what extent the property has been increased in value by the labor and expenditures of the defendants in developing the ore, and the improvements erected, and to show that the plaintiffs have not sustained any damage from the act of the defendants.</p> <p>Plaintiffs objected, and the court rejected the testimony.</p> <p>The eighth point of plaintiffs was as follows, with which is given the answer of the court:—</p> <p>8. In no ease are defendants entitled to credit for loose property, and temporary structures put and left on plaintiffs’ land by the defendants’ lessees, but the improvements, to entitle them to credit, must be of a permanent kind, evidently made for the permanent benefit of the land, and giving a permanent increase of value to it; and it is for the jury to say whether the improvements are, or are not, permanently beneficial to the land, and such as should entitle defendants to credit.</p> <p>Answer: “ This point is answered in the affirmative. The law is correctly stated.”</p> <p>The points presented by defendants and the answers of the court were:—</p> <p>1. The writ in ejectment to No. 230, August Term 1872, having originally been served in the names of the heirs of William Cox, deceased, who were nonsuited on trial of the ease, and a verdict and judgment in the case having been entered in favor of the heirs of Elizabeth Ege, deceased, who did not come upon the record as plaintiffs until April 24th 1874, the action did not exist as to them until that date.</p> <p>Answer: “ In a general sense this proposition is correct, but it must be understood that the moment the heirs of Elizabeth Ege came upon the record as plaintiffs, they became engrafted upon the action as such, and all the legal consequences of the action attached to them the same as if they had been of the original plaintiffs.”</p> <p>2. To entitle the plaintiffs to recover in this action the mesne • profits for the time anterior to the existence of the action of eject■ment, they must show their title and the possession of the defendants.</p> <p>Answer: “ This point is answered in the affirmative, and we think the plaintiffs have done this. They have shown the possession of the defendants and their lessees from the fall of 1869, and have .also shown their own title by the record and proceedings in ejectment. The verdict and judgment in their favor show the recovery of the title by the plaintiffs, and the charge of the court below and the assignments of error in the Supreme Court in affirming the judgment show unmistakably the character and extent of the title set up by the defendants in that trial to defeat the plaintiffs’ recovery.”</p> <p>3. The verdict and judgment in the ejectment are conclusive against the defendants only from the date of the action to the time when the plaintiffs were put in possession of the property and the evidence or notes of trial as kept by the court in that case cannot be resorted to, for the purpose of seeing what title the plaintiffs recovered on, or to show title in them before the action was in existence as to them.</p> <p>Answer: “ This point is affirmed generally. But where, as in this case, the record and proceedings in the ejectment show unmistakably the same continuous title in the plaintiffs down to the verdict and judgment from a time anterior to that for which mesne profits are claimed, although claimed anterior to the service of the writ of ejectment, the-defendants will not be permitted on the trial of the action for mesne profits to set up in defence the same title as that defeated in the ejectment. On the trial of a subsequent action of ejectment it would be different. By the record and proceedings in ejectment we take in not only thé verdict and judgment, but also the charge of the court below, the assignments of error passed upon by the Supreme Court and the opinion of the Supreme Court, all of which we think should be taken notice of in the action.” - .</p> <p>4. The action of ejectment having had no existence as to the plaintiffs prior to 24th April 1874, and they having been put in possession of the-property on 26th October 1874, and having shown no title in themselves prior to 24th April 1874, they can only recover in this action the profits received by the defendants from April 24th 1874 to October 26th 1874.</p> <p>Answer: “ Befused. We have already instructed you as to this.” 6. The lease to Seyfert, McManus & Co., providing for a rental of $2000 per annum, with the privilege of taking out ore therefrom in years succeeding that in which the rent may be paid, and it being admitted that none has been taken, and if the lease to them is on the Cox land, the recovery by the plaintiffs in the ejectment evicted Seyfert, McManus & Co., and made Mr. Kille liable to refund the $2000 they paid to him, and the plaintiffs cannot therefore hold him, in this action, responsible for the amount he received from Seyfert, McManus & Co. ' ' :</p> <p>Answer: “We cannot answer this point as. requested. It is true that the recovery by the plaintiffs, in the ejectment, operated as an eviction of the tenants, as between them and Kille, but whether or not Kille is liable or may ever be called upon to respond in damages to Seyfert, McManus & Co., does not affect the plaintiffs’ rights to the rental received by Kille from that part of the plaintiffs’ lands covered by the lease to Seyfert, McManus & Co.”</p> <p>8. The value .of the permanent. improvements put upon the ground in the form of machinery, buildings, and conveniences for the mining of ore, may be set off against the value of the ore in place before it was mined; and if the jury believe that the value of those improvements — machinery, buildings and conveniences — equalled or exceeded the value of the ore in place, then their verdict should be for the defendants.</p> <p>• Answer: “ This point is answered in the affirmative, with this qualification, however, that no improvements can be allowed for save such only as were put upon the ground prior to the-of June 1872, and which the jury are satisfied are of a beneficial, useful and permanent character. Improvements made and put upon-the ground after the -of June 1872 are not proper subjects of compensation as a set-off to the value of the ore in place, yet in so far as such improvements were used in carrying on and conducting the mining operations, the cost and expense of making and putting them on the ground should be taken into account by the jury in ascertaining the value in place*of the ore mined and carried away.”</p> <p>In the general charge, the court, Herman, P. J., said:—</p> <p>“From the conflict of the testimony,'we cannot instruct you peremptorily which is the true eastern boundary of the Louis Foulke tract, and therefore submit the matter to you, who are the proper persons to determine the fact.</p> <p>[“If you determine that the red marked line is the true eastern boundary of the Louis Foulke, then the Cox must come up to it; " and this would put fifty-two acres of the Seyfert, McManus & Co. lease on the Cox. But if you determine that the true eastern boundary of the Louis Foulke is the line as located by Evans, eighty perches eastward from the red marked line, then but two and a half acres of the Seyfert, McManus & Co. lease would be on the Cox. Thus, upon your determination of the true eastern boundary of the Louis Foulke will depend the proportion of the rents and profits of the Seyfert, McManus & Co. lease which the plaintiffs will be entitled to recover for.”]</p> <p>And again:—</p> <p>[“ The evidence shows that the defendants and their lessees made . improvements on the premises both before and after the time of bringing the action of ejectment. Whatever improvements of a permanent and valuable character the defendants or their lessees made and put upon the premises’prior to the time of bringing the action of ejectment, are proper and legitimate subjects of compensation to the defendants ; and their value to the plaintiffs, estimated in dollars and cents, must be recouped from and set off against the plaintiffs’ claim for mesne profits in this action.”]</p> <p>The verdict was for the plaintiffs, for $12,983.40.</p> <p>Defendants sued out this writ, and the errors assigned were 1, 2, 3, 4, 6, 6, the answers of the court to the points submitted by the defendant.</p> <p>7. The court’s answer to plaintiffs’ 8th point,</p> <p>8, 9. To the portions of the charge in brackets.</p> <p>10,11,13. The rejection of the offers of evidence on the part of defendants.</p>

<p>B. & S. were holders of a note of J. M., endorsed by A. M. Both J. M. and A. M. at different times made assignments for the benefit of their respective creditors, that of J. M. having been made first. B. & S. received a dividend on the note from the estate of J. M. Meld (reversing the court below), that they were entitled, in the subsequent distribution of the estate of A. M., to a dividend upon the whole amount of the note.</p>

This was the appeal of W. H. Woods and W. M. Williamson, doing business as Woods & Williamson, and of Lewis Brown and William Hibbard, trading as Brown & Hibbard, from the decree of the Court of Common Pleas of Huntingdon county, in the distribution of the proceeds of the sheriff’s sale of the real estate of John S. Bare, No. 119, of May Term 1875.

<p>Error to the Common Pleas of Huntingdon county: Of May Term 1876, No. 1.</p> <p>Case by Mary Decker against the Huntingdon and Broad Top Mountain Railroad and Coal Company, to recover damages for herself and her two minor children for the death of her husband, Adolphus Decker, who was killed in a collision upon the defendant’s railroad.</p> <p>Decker was engineer on the locomotive of a freight train on the defendant’s road, and was killed on November 21st 1872, by a collision between his train and another train on the same road. At the time of his death he was running upon what was called the Cumberland coal train No. 2, from Huntingdon to Mt. Dallas. That train left Huntingdon on the morning of the day of his death, and when the collision took place was running on its schedule time, and in all respects according to orders. On the day of the accident, the “local freight” train (running from Mt. Dallas north) with which the collision occurred, was behind time, and in such case it became the duty of the conductor of that train, Jacob Bowser, to keep out of the way of other trains. Bowser was well aware of this rule, and was besides notified, before leaving Mt. Dallas, by a telegraphic order from the superintendent of the company, that the Cumberland coal train No. 2 would be on the road for that day. This order was as follows:—</p> <p>. “ Telegraphic Train Order</p> <p>No. 2 Coal Train will be represented. Run accordingly.</p> <p>J. McK.</p> <p>“Correct. J. McK.”</p> <p>Bowser was also killed in the accident, and this order was found in his pocket after his death. .</p> <p>It appeared, from the testimony of the engineer of Bowser’s train, that when this order was handed to Bowser he mis-read it, as if it had been: “Coal Train No. 2 will not be represented,” &c. Then, instead of awaiting Coal Train No. 2 at Piper’s run, he pushed on to Riddlesburg and, solely in consequence of this mistake or disobedience of orders, the collision in which Decker was killed occurred between Piper’s run and Riddlesburg.</p> <p>At the trial, the plaintiff offered to prove by John Chappell that, on thpiday of the accident, a few hours after it ■ occurred, he met Mr. McKillips, the superintendent of' the defendant company, who said Bowser had gone against his orders; that witness replied that this was not the first time Bowser had done this, and then McKillips said, “Don’t you know that I have discharged him three or four times for getting drunk and disobeying orders ? But he would promise to obey orders, and I would employ him again,” for the purpose of shoAving negligence on the part of defendant in retaining in their employ a man Avhose intemperate habits were known to the superintendent.</p> <p>The defendant objected to proving conversations with superintendent McKillips, he being-a competent witness, and such proof being inadmissible to contradict him, if he should deny the matter alleged.</p> <p>The' evidence was admitted and bill for defendant sealed.</p> <p>The admission of evidence under this offer was the subject of the first assignment of error.</p> <p>The evidence given by the witness before this offer Avas made, and afterwards, in pursuance of it, shoAved that the conversation between the witness and the superintendent took place on the day after the accident. There was some contention in this court as to whether the offer Avas of a conversation Avhick took place on the day of, or the day after, the accident. This court took the latter view of it.</p> <p>The plaintiff offered to prove by the same witness that McKillips, as superintendent, had the entire control and management of the road, its hands, machinery, trains, &c.; that he employed Bowser, the conductor of the local freight, through whose negligence, in part, it is alleged the plaintiff’s husband was killed; that Bowser was a reckless conductor, and of intemperate habits; that he had been repeatedly discharged by McKillips for disobedience of orders and drunkenness, and employed again by him, after notice from the engineer of Bowser’s train that he would leave the service of the company unless he Avas put on another engine or Bowser was discharged, and that-McKillips promised to see what he could do, and said, “ Wait a littleand that by the negligence of either McKillips or Bowser, or both of them, the plaintiff’s husband was killed.</p> <p>Defendant objected on the ground, (1) that previous special acts of incompetence are not matters for the-jury as to general character, and for the further reason that there could be no recovery against the company for an injury done to one servant by the carelessness or mistake of another in the same service; and (2) that no blame having been shown to. attach to any other person than Bowser, it is only his general character for negligence and unfitness that can be shown, and only when offered in connection with proof that the defendant had previous knowledge of such unfitness.</p> <p>The evidence was admitted, and a bill for the defendant sealed. This was the subject of the second assignment of error.</p> <p>The plaintiff further offered to prove by John Hughes that the railroad company, defendant, employed as their superintendent, John McKillips, a man of known intemperate habits, and committed to him the general management of the road, covering the employment and discharge of all hands, the making of schedules and the running of all trains; that Bowser’s train, on the day of-the accident was not running on schedule, but on orders from McKillips, who was under the influence of liquor on that day, and that for years before the accident the general reputation of McKillips for fitness and competency for the position he held was bad.</p> <p>This was offered to show negligence on the part of the defendant in employing an unfit superintendent; and also to show such personal negligence on the' part of the superintendent on the day of the accident as contributed to the death of the plaintiff’s husband. This evidence was objected to by the defendant.'</p> <p>This was the third error assigned.</p> <p>The plaintiff also offered to prove by W. H. Fisher that on the 19th April 1870, and from that time until the 29th July 1870, he was the engineer of Bowser’s train; that Bowser’s character as a conductor was that of a reckless, careless man; that he (the witness) complained of him to John McLaughlin, the train master, three different times; that he afterwards complained of him to Mr. McKillips, the superintendent, and that Mr. McKillips told him that McLaughlin had spoken to him about it; and that he (the witness) left the road or left that train on account of Bowser’s carelessness or recklessness ; that Bowser’s general reputation as a railroad man was that of one who was unfit for the position of conductor; to be followed by evidence that Bowser continued to bear that reputation up to the time of the accident at which Decker was killed. This was objected to on the ground that the time during which his character was proposed to be proven, being more than two years before the accident occurred, was too remote to be evidence. The evidence was admitted and a bill sealed; this constituted the fourth assignment of error.</p> <p>A very large amount of testimony was introduced under the third offer above, on the subject of the superintendent’s competency, and much time during the trial (which lasted for several days) was taken up by this question. McKillips himself was also a witness, and testified as to material points in the case.</p> <p>The court (Dean, P. J.) charged the jury that the general rule is that where several persons are employed as workmen in the same general service and one of them is injured through the carelessness of another the employer is not responsible; but that if the jury believed that Bowser was incompetent and unfit for his position and was known to his employers to be so, the defendant would be responsible ; and further charged:—</p> <p>“ As to the evidence relating to McKillips’s habits rendering him unfit for his position, we withdraw that evidence entirely from your consideration. It was admitted by us in view of the fact that at an early stage of the case it was urged by plaintiff that the accident might have been caused by clashing or contradictory orders issued by McKillips. From the evidence here in the case on both sides the orders to Bowser were proper and intelligible, and you would be bound to so find from the evidence, because the evidence is undisputed, that from no direct act of McKillips did the accident occur. This being the case his char'acter and habits have nothing whatever to do with the issue — they have no bearing on it, and you will dismiss from your minds any impression made by the testimony in this particular, with reference to McKillips’s habits and unfitness. It was received in view of another theory which it was thought might be drawn from the evidence. You will determine just the question whether McKillips, prior to the accident, knew that Browser was reckless and incompetent, or drunken, to an extent which unfitted him for the position.”</p> <p>There was a verdict for the plaintiff and judgment thereupon. The defendant below took this writ of error. The first four assignments of error respectively were to the admission of evidence as above shown.</p>

<p>Where a life tenant leases a farm for a term, reserving a rent in kind and dies during the term, under the provisions of the Act of February 24th 1834, the administrator of the life tenant is entitled to the rent which has accrued at the time of the death of the life tenant and the balance goes to the remainderman.</p>

Debt by B. E. Bell, to use, &c., against John Halfpenny, on a single bill, dated October 22d 1873, payable one day after date.

No. 6. This action was begun as an action of dower at common law, by “Elizabeth Ramey, widow of Jacob Ramey, deceased, now intermarried with Joseph S. P. Harris,” against George M. Tatham; the narr. contained counts for dower in five messuages. The writ was served on the tenants of the defendant, who occupied a certain tract of land of which Jacob Ramey had died seised, of an undivided two-sevenths of which the defendant had become the owner after Ramey’s death.

<p>Error to the Common Pleas of Blair county: May Term 1876, No. 27.</p> <p>This was an action on the case brought by Eliza Morgan, a minor, by her next friend, against the Pennsylvania Railroad Company, to recover damages for injuries from the alleged negligence of the company in running a train of cars over its road.</p> <p>At the trial it appeared that at about five o’clock in the afternoon of October 15th 1874, a gravel and repair train, consisting of an engine, ten dump and truck cars and a caboose car, was backing on the Morrison’s Cove Branch, on a slightly down grade, with the caboose car on the front and the engine on the rear. The train hands in charge consisted of a fireman and a flagman, both of whom were on the front of the caboose car, upon the look-out, and also of the engineer and a brakesman, both of whom were upon the engine.</p> <p>The place at which the accident occurred was a sparsely-settled district just outside of the borough lines of Ilollidaysburg.</p> <p>The evidence as to the speed of the train at the time was conflicting ; for the plaintiff, there was evidence tending to prove that the speed was very great; but the evidence of the defendant, which seemed to have more weight, was that the train was not moving faster than six miles an hour, the rate allowed by the rules of the company.</p> <p>There was but a very slight curve in the road at this point, and nothing to obstruct the view of the track for a long distance. As the train approached a private crossing, and when it was at the distance of about 520 foot from the crossing, the hands on the front of the train saw the plaintiff, then a child of about five years of age, and a little boy, upon the track at this crossing. Nothing was then done to stop the train. When within 163 feet of the children one of the train hands called to the children to get off the track. They started to run off immediately; the boy ran straight across the track and got safely off; the girl started to run diagonally off, and in doing so caught her foot inside of the rail, and between it and the plank, in the space left for the flange of the wheel. As soon as the train hands saw her predicament, the train then being within about 100 feet of the child, they applied the brakes, and signalled the engineer, who reversed the engine. Although every possible exertion was used, it was impossible to stop the train until the front car had run about 60 feet past the crossing. Meantime the child’s mother and one of the neighbors had run to her assistance and endeavored to extricate the foot. Not being able to do this in time, as the train passed, they hold the child’s body as far out of the way as possible, so that the front wheel of the caboose car, sliding under the pressure of the brake, appeared to have pushed the plaintiff’s foot out of her shoe, lacerating the foot and producing, as was testified, a permanent injury. The shoe was left sticking in the space between the rail and the plank, where it was first caught.</p> <p>It appeared that the brakes and all other parts of the cars were the best in use, and in good order, and that the train was properly manned by experienced and competent men.</p> <p>There was some evidence that the plaintiff’s foot was caught in a hole outside of the track, negligently left there by the defendant, but the weight of the evidence was clearly, that the hole was, as above stated, inside of the rail.</p> <p>It did not appear that the plaintiff was lawfully upon the track at the time of the accident. The crossing upon which she was playing at the time was entirely a private one, the use of which was confined to a few families, including that of the plaintiff, but it was built and maintained by the company.</p> <p>The court below, Dean, P. J., charged,,inter alia, as follows:—</p> <p>“ If, however, the weight of the evidence should satisfy you that the injury sustained by the plaintiff was not the result of a negligent construction of the crossing, then you will turn your attention to the other question in the case: [Was the plaintiff injured, as averred in the second branch of the plaintiff’s case, by reason of the swift, reckless and negligent running of their cars up to and upon this crossing, in the street of a populous town, this plaintiff being, as she had a right to be, upon the crossing for the purpose of going over it at that time ?]</p> <p>“ In considering and determining their respective rights, the circumstances surrounding them at the time must be considered; the populousness of the neighborhood at that particular place; the approaches to the crossing; the distance at which the crossing and those upon it can be seen by those in charge of or running trains, and all the circumstances calculated to throw light upon the conduct of the defendant’s servants, and to show whether they acted as prudent men should act — with that ordinary care which men under such circumstances should be expected to use.</p> <p>“ What is want of ordinary care, depends upon the circumstances of' this particular case. [What would be ordinary care in running a train of cars through a farm, might be gross recklessness in running the same train of cars through the streets of ra town, or over a crossing, or into a station.] The circumstances in a particular case must always be considered by the jury in determining whether at a particular moment and place there was ordinary care, or the want of it.</p> <p>“ The Supreme Court, in one of the late cases, says, in reference to the degree of care which is to be exercised under such circumstances, and which is required under such circumstances: ‘ The degree of care required of the servants of the company in such a case is in some measure dependent upon the capacity of the injured party. If an adult should place himself on the railroad, where he has no right to be, but when the company is entitled to a clear track and the benefit of the presumption that it will not be obstructed, and he should be run down, the company would be liable only for wilful injury,’ that is, for wilfully running the cars over him, £ or for gross or wanton negligence. But, if a child of tender years should do so, and suffer injury, the company would be liable for want of ordinary care.’ While in the case of an adult they would be liable only for wilfully running over the man, or for gross negligence amounting to wantonness and recklessness in running over the adult, yet in the case of the child they are liable for want of ordinary care. ‘ The principle may be illustrated thus: If the engineer saw the adult in time to stop his train, but the train being in full view, and nothing to indicate to him a want of consciousness of its approach, he would not be bound to stop his train. Having the right to a clear track, he would be entitled to the presumption that the trespasser would remove from it in time to avoid the danger ; or, if he thought the person did not notice the approaching train, it would be sufficient to whistle to attract his attention without stopping. But, if, instead of the adult, it were a little child upon the track, it would be the duty of the engineer to stop his train upon seeing it. The change of circumstances from the possession of capacity in the trespasser to avoid the danger, to a want of it, would create a corresponding change of duty in the engineer. In the former case, the adult concurring in the negligence causing the disaster, is without remedy, in the latter, the child, not concurring from a want of capacity, the want of ordinary care in the engineer would create liability. But, if the train were upon the child before it could be seen, or if it suddenly and unexpectedly threw itself in the way of the engine, the engineer being incapable of exercising the measure of ordinary care to save it, the child would be without remedy, for the company’s use of its track is lawful, and the presence of the child upon the track is unlawful.’</p> <p>£< [The Supreme Court say — and the difference in the facts between that case and this would not materially affect the ruling— £ Where a child is upon the track, they are bound to stop, upon seeing it, because they have no right to assume that the child knows its danger, or has capacity to apprehend danger, or has the capacity to flee from it as in the case of an adult.’] Of course, if they had stopped it before it reached the crossing the child would not have been injured. In failing to stop the train before it reached the child, did they fail to exercise that ordinary care which, under the circumstances, a man of ordinary prudence and caution, conducting a business of that kind at that particular place and surrounded by the particular circumstances, should have exercised ?</p> <p>“ [It was the duty of those on the train, on seeing the child or children of this age upon a crossing, to stop the train until the children either ran off, or until those in charge of the train got off and removed them. Children of such tender years are not to be expected to have the capacity to apprehend or avoid danger, and it was the duty of those on the train to get off and remove them, if they could get them off the crossing in no other way. It occurs to us, however that, even if this be a correct view of the evidence, as taken by defendant, it does not follow from the facts necessarily that there was an absence of negligence on the part of defendant. Was not the failure of the child to get from danger owing to its want of care in avoiding the crevice between the plank and the rail; or was not its foot caught and there held because of its physical incapacity to remove it ? Are not these facts for your consideration, assuming them to be facts ? Would not an adult have avoided sticking his foot between the plank and the rail, or, having got it there, would he not, with the exercise of more physical effort, have extricated it instantly, in view of the approaching danger, even if he had left his boot in the crevice, or to some extent injured his foot ? If so, if the child either had not the capacity to avoid the dangerous crevice, or if it had not the physical capacity to extricate it after it was caught, then it comes back to the same question as in the case where the child had been run over without having attempted to escape.]</p> <p>“ The defendant’s servants were bound to exercise such care as they could have exercised under the circumstances, and if they failed to do what prudent men ought to have done under the circumstances, they are liable for the result of their negligence to this plaintiff in the amount of damages sustained by her.</p> <p>“ The plaintiff alleges that there was in this case what amounted to gross negligence. The plaintiff alleges that they were running at a high rate of speed through a populous town. You will remember the testimony from which plaintiff claims this fact to be made out. As has been said, the successful management of a railroad requires that the trains shall run at a high rate of speed; but then care requires that they shall not run at a high rate of speed through the streets of a town.”</p> <p>The defendant offered the following points, both of which were refused:—</p> <p>2. Eitzharris, the fireman, having, when the car was within about 163 feet of the child, warned her by hallooing at her to get off the track, and she having started to move off, he was entitled to the presumption that she would get away from the track in time to avoid the danger, and under these circumstances there was no duty imposed upon the men in charge of the train to make an effort to stop, and the failure to do so was not negligence; they were not negligent in failing to use precaution when they had no reason to apprehend injury to the child.</p> <p>3. The child’s foot getting fast was an unforeseen contingency which the defendants could not be expected to anticipate or guard against, and if the jury believe the child would have got out of the way of the train but for that accident, the defendants are not responsible for the injury.</p> <p>The jury found a verdict for the plaintiff. After judgment thereon the defendant below took this writ of error, assigning for error the parts of the charge in brackets above, and the answer to the above points.</p>

<p>Error to the Court of Common Pleas of Blair county: Of May Term 1876, No. 62.</p> <p>This was a scire facias on a mortgage given by Margaret Swift of her own real estate to the Allegheny Building and Loan Association, .to secure her husband’s bond to the association for $600. After appearance by the defendants, judgment was entered for want of an affidavit of defence, and damages were assessed at $600. The condition of the bond and the averment of a breach thereof in the scire facias appear in the opinion of the court. The defendants took this writ of error, on the ground that the court erred in entering judgment for want of an affidavit of defence, and in entering judgment for the amount therein set forth.</p>

71 and 72. These were appeals by John Copely and ten other residuary legatees under the will of Hannah Lloyd, deceased, from decrees of the Orphans’ Court confirming the reports of the auditor… Held: and the other at Tyrone, twenty-one miles distant. Upon the day fixed for the second hearing by the auditor, the counsel at Altoona was unexpectedly called away and could not attend.

Appeals from a decree of the Court of Common Pleas of Lebanon county: Of May Term 1876, Nos. 92 and 93. These were appeals from a decree subrogating Jacob Lauser, a mortgage creditor of Hickernell, as plaintiff in the case of Eessler v. Hickernell and Bomberger, upon the payment to Eessler of the amount of Ms judgment and costs in that-case.

<p>1. Axl appraisement confirmed by tbe court, is a matter of record possessing tbe effect of a judgment and open to no collateral review, but such a record is conclusive of the subject to which it relates, and of nothing else, and where, after an appraisement, the value of the goods was ascertained to be $48, and it was in evidence that a widow claimed $252, the residue of her $300, under the exemption law, out of a security belonging to her husband, but no note of her claim was made in the appraisement, the confirmation of the appraisement, while conclusive as to the goods, did not affect that residue.</p> <p>2. It is the valuation of chattels which cannot be calculated or counted, but which must be estimated by appraisers, the law requires the court to approve or set aside, but where the widow elects to take money or the proceeds of securities or stocks, and her demand is made in proper time, they may be claimed in the administrator’s account without appraisement.</p>

<p>Error to the Court of Common Pleas of Franklin county: Of May Term 1876, No. 62.</p> <p>This was assumpsit by Samuel S. Shryock and John P. Rhoads, assignees of the Farmers’ and Mechanics’ Bank of Shippensburg, against Abram S. Basehore, on a promissory note. The narr. contained a count on the note, and common counts. Defendant pleaded payment, set-off, and, at the trial, entered a further plea that the assignment to the plaintiffs by the directors of the Farmers’ and Mechanics’ Bank of Shippensburg was transgressive of the Act of Congress of the 2d of March 1867, known as the Bankrupt Law, and is therefore void. The defendant gave notice, under the plea of set-off, of a bill of exchange drawn on the Union Banking Company, a copy of which appears below in the special verdict, and asked to recover the difference from the plaintiffs.</p> <p>The jury found substantially the following special verdict:—</p> <p>“ The Farmers’ and Mechanics’ Bank of Shippensburg was incorporated by act of the legislature of Pennsylvania, of 11th April 1862, and was therein made subject to the provisions and restrictions of the several acts of assembly regulating banks, and to such further provisions and restrictions as the legislature should think proper to enact for the further regulation of banks and saving institutions.”</p> <p>On the 5th day of February 1875, the bank was the lawful holder of a promissory note for f2500, made by Abram S. Basehore, the defendant, of which the following is a copy:—</p> <p>“$2500. Shippensburg, Pa., Feb. 5th 1875.</p> <p>Fifty-two days after date, I promise to pay to the order of Emanuel Basehore, at the Farmers’ and Mechanics’ Bank of Shippensburg, twenty-five hundred dollars, without defalcation, for value received. Abram S. Basehore.</p> <p>Credit the drawer. Emanuel Basehore.</p> <p>Endorsed: Emanuel Basehore.”</p> <p>This note was not paid at maturity.</p> <p>On April 29th 1875, a petition was presented to the court of Common Pleas of Cumberland county, praying a citation to the president and cashier of the said bank, to. show cause why an assignment of the assets of the said bank should not be made for the benefit of the creditors thereof, in accordance with the provisions of the 27th section of an Act of Assembly, approved the 16th day of April 1850, entitled “An Act to regulate Banks.”</p> <p>A citation was awarded, and on the 3d day of May 1875, the court ordered that the directors of the bank should make and execute, under the corporate seal, a general assignment of all the estate, real and personal, of the bank, to such persons as they should select, subject to the approval of said court.</p> <p>On May 4th 1875, the president and directors of the bank, in obedience to this decree, made and executed to John P. Rhoads and Samuel S. Shryock, the plaintiffs, a deed of assignment of all the estate of the bank, in trust for creditors. This assignment was approved by the court, and was duly recorded, and the assignees were properly qualified to act as trustees thereunder. The bank was badly insolvent at the time and the assignees had notice thereof.</p> <p>Prior to the assignment, on April 1st 1875, a draft was issued by ■ the Farmers’ and Mechanics’ Bank of Shippensburg in favor of J. D. Q-eesaman, cashier of the First National Bank of Shippensburg, for $2620.94, on the Union Banking Company of Philadelphia. This draft was on the same day delivered to the First National Bank, and by it endorsed and sent to Philapelphia for collection, and was on the 2d of April presented for payment and protested, and on the 3d of April returned to the First National Bank, and by it placed in the hands of an attorney for collection. The following is a copy of it:—</p> <p>“ Farmers’ and Mechanics’ Bank of Shippensburg.</p> <p>“$2620.94. Shippensburg, April 1st 1875.</p> <p>“ Pay to the order of. J. D. Greesaman, Esq., cashier, twenty-six hundred twenty and dollars. J. Hiram Hurley, Cashier.</p> <p>“ To Union Banking Company, Philadelphia. Endorsed:</p> <p>“J. D. Q-eesaman.”</p> <p>The said J. D. Geesaman, at the request of the attorney for the First National Bank, on the 14th day of July 1875, endorsed the said draft of $2620.94, and delivered it to Basehore, and then received from Basehore, in lieu and consideration of this draft, a promissory note of the same date, made by Basehore and by one Emanuel Basehore, as follows:—</p> <p>“ 2543AN Shippensburg, Pa., July 14th 1875.</p> <p>“ Ninety days after date, we or either of us, promise to pay to the order of J. D. Geesaman, cashier, at the Frst National Bank of Shippensburg, twenty-five hundred and forty-three 7Vu dollars, without defalcation, for value received, together with five per cent, attorneys’ fee for collection of same, if not paid when due.</p> <p>Abram S. Basehore.</p> <p>Emanuel Basehore.”</p> <p>At the time of the making of the last-mentioned note of 16th July 1875, there was written on the back of it the following:—</p> <p>“ This note is given in purchase of a certain draft held by the First National Bank of Shippensburg, fur $2620790%, drawn by the Farmers’ and Mechanics’ Bank of Shippensburg upon the Union Banking Company of Philadelphia, date 1st of April 1875, and protested, and is good only for so much as the makers hereof, or either of them, shall realize upon said draft either by collection, payment, or credit obtained upon obligation. If any excess shall lie realized upon said draft over and above the amount of the note, said excess to belong to the said National Bank.”</p> <p>The consideration given by Basehore for this draft was the note of the 14th July 1875, for $2543.75, with the memorandum thereon,' and this endorsement was on the note when it was taken by the First National Bank for the draft. This draft was not received by Basehore upon any other terms than those which were written on the back of the note of 14th July 1875, nor did the First National Bank hold the note upon any other terms or agreement.</p> <p>Geesaman had a general authority to endorse the notes and drafts of the First National Bank aforesaid; he had no authority, apart from his general authority, to endorse this draft to Abram S. Basehore; he did not so endorse the draft by the express direction of the board of directors; it was endorsed by the direction of the president of the bank; no minute was made of the transaction, nor was any formal action of the board taken theron. The board were informed by the cashier, within a week or two, of the 'transfer of the draft and of the taking of the said note for it, and acquiesced therein; but the board were not informed by the cashier of the writing on the back of the note; neither the president nor directors ever gave Geesaman any express authority or directions to transfer the draft to Basehore upon any terms or conditions other than the note of Basehore for $2500. The president authorized the transfer, if Basehore would give his note for $2500. The president of the board was present when the note was written and given, and was cognizant of the whole transaction, and approved of it, and directed the endorsement to be made. The note of 14th July 1875 was held by the First National Bank up to the time of the trial.</p> <p>The draft so endorsed to and held by Basehore was tendered by him to the assignees in payment of the note in suit, on the 14th day of July 1875, before this suit was brought, and was by them refused, and was also tendered to the plaintiffs on the trial of the case.</p> <p>The defendant, about the middle of November 1875, after this suit was brought, which was on the 19th day of August 1875, paid $800 into the First National Bank, and directed that sum to be appropriated to the note of 14th July 1875. The clerk of the bank said he would lay it aside until the cashier came in. The direction given was not revoked by Basehore, but the money was not appropriated by the bank to the note, but found to the credit of Basehore, in his account, and awaited his directions.</p> <p>The defendant, at the time of the transfer of the said draft to him, had knowledge of the assignment by the bank to the assignees made on the 4th of May 1875, and that the assignees had accepted the trust.</p> <p>Upon these facts the jury were' ignorant how they ought to find a verdict. If, upon the whole matter, the court should be of opinion with the plaintiffs, then they found for the plaintiffs in $2607.72; otherwise they found for the defendant.”</p> <p>The court below (Rowe, P. J.), in entering judgment on this verdict for the defendant, was ‘ of opinion that the verdict raised two questions, first as to the validity of the assignment to the plaintiffs, and secondly as to the set-off. As to the former, question the learned judge, in an elaborate discussion, held that the bankrupt act made the deed of assignment to the plaintiffs void. As to the latter point, the learned judge said:—</p> <p>“ And now as to the question of set-off, it has been contended that the draft for $2600, drawn by the Farmers’ and Mechanics’ Bank of Shippensburg, on Philadelphia, in favor of the First National Bank, and endorsed to the defendant after maturity, is not included in the word ‘ obligations ’ as used in the law, and is not such a note or obligation as the assignees must accept in payment of debts due to the bank. This contention is not supported by authority, and it seems clear that a draft drawn by a bank is one of its ‘obligations.’ *</p> <p>“ The fact that the draft was taken .by the defendant after the assignment by the bank to the plaintiffs, and with knowledge of it, is of no consequence, as ruled in Bank v. Spangler, 32 Penn. St. 474. The cashier of the First National Bank had authority, as such, to make the endorsement and transfer the draft: Matthews v. Massachusetts National Bank, 14 Am. Law Beg. 153; Bank v. Beed, 1 W. & S. 106; Bank v. Typer, 3 Id. 376; Housum v. Bodgers, 4 Wright 190. To the objection that the writing on the back of the note given for the draft shows that the note was not to be paid by defendant except to the extent to which he should be able to make use of the draft, and that therefore the transfer of the draft to the defendant was conditional, Mr. Stewart has answered that it is not the transfer of the draft which is conditional. That is absolute. What is conditional is the payment of the note which defendant gave for the draft. It will not again become the property of the First National Bank in any event. That is a satisfactory answer. The intention of the law is clear that the notes and obligations of the bank, and the checks of its depositors shall be as good as gold in payment of its debts. The draft is such an obligation of the bank, in the defendant’s possession honestly and for all purposes, and he may use it in payment or as a set-off.”</p> <p>The plaintiffs took this writ of error, and assigned for error the entering of judgment for the defendant upon the special verdict.</p>

37. This was an action of assumpsit, brought by Barbara March against the Berlin Beneficial Society, a corporation-chartered by the Court of Common Pleas of Adams county, among the by-laws of which was contained the following provision:— “ At the death of a member who shall have belonged to the association at least one year, the association shall pay to his widow or relatives twenty-five dollars, for and towards his decent interment, and at the next stated meeting each…

<p>This was an appeal from the Orphans’ Court of Franklin county: Of May Term 1876, No. 105.</p> <p>It was taken from a decree of the court below confirming the report of the auditor appointed to audit the final account of James H. Bratten, deceased, guardian of Mary Perry (formerly Landis), as filed by his administrator c. t. a., J. W. Douglas.</p> <p>The case was this:—</p> <p>In the end of 1849, Jacob Landis, of York county, died intestate, leaving to survive him his widow, Catharine Landis, and a daughter, Mary, then but a few weeks old. In April 1851, the Orphans’ Court of York county appointed Jacob Ehrhart guardian of Mary Landis. In June 1851, when the daughter was about eighteen months old, Catharine Landis married James H. Bratten, and from that time until Bratten’s death, in 1868, Mary Landis lived with her mother and step-father at Chambersburg, in Franklin county. As to the circumstances under which she lived with her step-father, Mrs. Susan Frey testified as follows:—</p> <p>“ Mr. Bratten was one day in our house and talking to Mr. Frey; he said in my presence, in reply to Mr. Frey’s saying to him about marrying a widow with a child, that ‘ that made no difference to him, that he intended-to raise that child as his own, that he had promised his wife before he married her that as long as he had bread, she should have it — that he would care for and support the child as if it was his own.’ He did do so; the child was in his family the same as his own children; when he bought for them, he bought for her just the same; if he gave to his own daughters for spending money or for church, he gave to her also; she called him ‘ father,’ and he called her ‘ daughter,’ or ‘ Mary.’ She was a young lady when he died; she did a good deal of work in the family, more I think, than any of them; she nursed the children, and when I was there, I saw her cooking just the same as his own children. The children were all educated at the common schools here in town, and went to the same schools as my own children; he never sent her away from town to school.”</p> <p>In 1856, Ehrhart was removed from the guardianship by a decree of the Orphans’ Court of York county, and Hezekiah Easton a2Dpointed in his place. Easton entered the necessary security, with James H. Bratten as his surety. In 1860, Easton being desirous of withdrawing from the trust, filed his account in the proper office in Franklin county, in which he charged himself with $600, under date of April 1st 1857, as “ money received when appointed,” and claimed credit for the following :—</p> <p>April 1st 1857 — Paid Jas. H. Bratten for keeping said Mary Landis near four years, ..... $100.00</p> <p>Also, the interest on said money, it being (Jan. 17th 1860) five hundred dollars, which amounted to . . . 70.00</p> <p>Allowance for guardian,......20.00</p> <p>Mortgage in favor of said Mary Landis, coming from James</p> <p>H. Bratten, entered in Mortgage Book E, page 160,. 410.00</p> <p>$600.00</p> <p>Register, ......... 3.50</p> <p>Clerk, ......... 2.50</p> <p>This account was. duly confirmed by the Orphans’ Court of that county. Easton was thereupon discharged from the trust at his own request, and James H. Bratten was appointed guardian in his place. On October 1st 1867, Bratten filed a partial account in the Register’s office of Franklin county, as follows:—</p> <p>March 13th 1860 — Money received from her former guar-</p> <p>dian, Jacob Ehrhart, ...... $500.00</p> <p>Interest to the present, ...... 220.00</p> <p>$720.00</p> <p>In this account he claimed credit for Fees paid G. W. Toms, register, .... 3.50</p> <p>Fees paid H. Easton,...... . 20.00</p> <p>Supporting, maintaining, clothing and educating said ward</p> <p>for eight years, at $100 per annum, .... 800.00</p> <p>$823.50</p> <p>All the funds are consumed and there is no further estate.</p> <p>T. M. M. (paid $1.00). Fees on account paid, . . 4.00</p> <p>This account was in due' time confirmed by the Orphans’ Court and a balance decreed in favor of the accountant of $107.50. Within a.year, and on January 3d 1868, Bratten died leaving a will, of which J. W. Douglas was subsequently appointed administrator de bonis non cum testamento annexo. On September 8th 1875, after citation by Mary Landis, who had then reached her majority and become Mary Perry, Douglas filed the following guardian’s account of the estate of Mary Landis.</p> <p>June 1st 1875, the administrator of said guardian claims the following credits:—</p> <p>“ To balance found due the guardian on his account filed</p> <p>August 7th 1867,......$103.50</p> <p>Interest from August 7th 1867 to June 1st 1875, . 49.68</p> <p>To supporting, maintaining, clothing and educating said ward, from August 7th 1867 to January 3d 1868, the day of James H. Bratten’s death, at the rate of one hundred dollars per year, ..... 41.70</p> <p>Interest from January 3d 1868 to June 1st 1875, . 17.50</p> <p>$212.38</p> <p>Accountant’s fees, ..... $20.00</p> <p>Advertising and register’s fees, . . 4.90</p> <p>Clerk’s fees,......'2.00</p> <p>The accountant suggests that no estate of the ward ever came into the hands of the accountant.”</p> <p>Counsel for Mrs. Perry filed six exceptions to this account and upon motion the court appointed an auditor “to examine the exceptions filed to the said account and to state a full and completo account according to law of the management of the said ward’s estate.’'’</p> <p>The first exception was as to the omission of the items of the partial account from the final account, and the other five exceptions raised the question as to whether the minor was chargeable by Bratten, her guardian, for maintenance during her minority and while an inmate of his family.</p> <p>The above facts appeared in evidence before the auditor.</p> <p>On the first point the auditor reported that the account should be restated so as to include the earlier items. As to the payment made by the former guardian, Easton, to Bratten, for the minor’s maintenance, as set forth above in Easton’s account, the auditor was of opinion that in these proceedings and at so late a day, in the face of his confirmed account, they could not be disturbed. As to the credits of $800 and $41.70, the auditor reported that they should bo stricken out, on the ground that Bratten was legally bound to maintain his step-daughter, under the circumstances, and could not charge her in his account with her maintenance and support. After making some unimportant changes in the account, the auditor reported a restated account, as follows:—</p> <p>The accountant should be and is now charged as follows:—</p> <p>March 13th 1860 — To cash received from H. Easton, guardian, . ........ $500.00</p> <p>Interest on same from March 13th 1860 to March 13th 1876,......... 480.00</p> <p>$980.00</p> <p>The accountant is credited as follows:—</p> <p>March 13th 1860, cash paid H. Easton, allow-</p> <p>ance, ....... $20.00</p> <p>March 13th 1860, cash paid Gr. W. Toms, . 3.50</p> <p>August 7th 1867, cash paid T. M. Mahon, clerk’s</p> <p>fees,.......1.00</p> <p>Interest on $23.50 to March 13th 1876, . 22.56</p> <p>Interest on $1 to March 13th 1876, . . .52</p> <p>Accountant’s fees, ...... 20.00</p> <p>Advertising and register’s fees, . . . 4.90</p> <p>Clerk’s fees, ......2.00</p> <p>Douglas excepted to the auditor’s report, (1) and (2), on the ground that the auditor had disallowed the credit claimed by the guardian for the minor’s support; (3) that the auditor charged Bratten with $500 as principal, whereas Easton’s confirmed account shows that Bratten received but $410, less certain costs; (4) and (5) that the auditor erred in opening Easton’s account and Bratten’s first account.</p> <p>The court dismissed the exceptions and confirmed the report of the auditor.</p> <p>Douglas took this appeal and assigned for error that the court erred in not sustaining the exceptions of appellant and in confirming the auditor’s report, and in not confirming the account of James H. Bratten, guardian of Mary Landis, now Mary Perry, as stated by J. W. Douglas, administrator of the estate of Jas. H. Bratten, deceased.</p>

<p>1. A license for the enjoyment of certain privileges in land obtained under an executed verbal contract founded upon a sufficient consideration, is irrevocable by the licensor or those claiming title in the land under him.</p> <p>2. T., who was preparing to build a saw-mill on a site selected by himself, at the request of B. changed his plan and agreed to build his mill at a point chosen by B., and agreed at the same time to give B. possession of a strip of land required to straighten B.’s lines (upon which B. wished also to move a small house belonging to him), and to saw B.’s lumber at a price below the market rates ; B., in return, agreed to give T. the right to build a tramway across his (B.’s) land, and to throw the waste from the mill into a stream which ran through B.’s land. This contract between them was verbal; it was fully executed by both parties. B. afterwards died. Some years afterwards, McE., the vendee of B.’s heirs, brought an action against T. for damages caused by the deposit of waste from B.’s mill thrown into the stream. Held, that the right acquired by B. was a license and not an easement: Held also (reversing the court below), that the license in B. to throw the waste from the mill into the stream was irrevocable.</p>

<p>1. The Act of October 13th 1840 provided for the incorporation of literary, charitable,' religious and beneficial societies, fire engine and hose companies. The Act of April 22d 1850 extended the Act of 1840 to mutual savings, land and building associations, but confined its operations to the counties of Philadelphia, Schuylkill and Berks. By the Act of May 7th 1855, the Act of 1850 was extended to Lehigh, Northampton, and Dauphin counties, and by subsequent acts to other counties of the state. The Act of April 12th 1859, after referring in the preamble to the Act of 1850 and its supplements and providing in its eighth section that all charters granted under these acts should be valid, and that the premiums paid by mutual savings fund, loan and building associations should not be deemed usurious, made a general provision for the incorporation of these associations. Held, that the general Act of 1859 repealed the local Act of 1850 and its supplements, and that thereafter these associations must be incorporated under the provisions of the general law.</p> <p>2. Held,, further, that a building and savings association incorporated in 1869 by the Court of Common Pleas of Dauphin county upon a petition signed by a less number of persons than required by the.Act of 1859, and having other provisions inconsistent with those conferred by that act, cannot assume to have the powers and privileges of a building association under the Act of 1850 and its supplements and claim that it is protected by the eighth section of the Act of 1859, and therefore when said association sued out a writ of scire facias on a mortgage given by a shareholder to secure a loan made by the corporation to the former who had ceased to pay interest and dues, it could derive no support from the Act of 1859 and could only recover the amount of money actually loaned with legal interest.</p>

<p>This case was certified from the Eastern District. ■</p> <p>• Appeal, No. 131, of July Term 1875, from the order and decree of the Court of Common Pleas, No. 2, of Philadelphia county, in equity, for a special injunction.</p> <p>On the 30th of June 1875, Charles E. Morris, assignee of Henry G. Morris, filed a bill in equity against Alexander Ervin, the Seventh National Bank and the Second National Bank of Philadelphia, which set forth, that on the 29th of April 1875, Henry G. Morris, being largely engaged in the iron business at Southwark Foundry, in Philadelphia, finding he was insolvent, executed a general assignment for -the benefit of his creditors; that Morris commenced business at said foundry in January 1871, and employed Alexander Ervin at a salary of $6000 per annum, as his confidential agent and financial manager; that he had the fullest faith in the business ability and integrity, of Ervin, and trusted him unreservedly with the control and management of the finances of his business and the receipts of moneys; that the private ledger of Morris was kept by Ervin, and the other books by Ervin’s nephew, under his charge; that so great was the confidence of Morris in Ervin that he never personally examined the books as kept by Ervin, nor investigated the condition of the business, but received a statement, from time to time, on balance sheets prepared by Ervin; that, in April 1875, he became insolvent, and an examination of his books showed that in four years and four months he had lost $1,200,000 in the foundry business; that this investigation of the books showed they had been kept in a grossly irregular manner, and disclosed the fact' that Ervin, while acting as financial manager for Morris, had received large sums of money for which he failed to account; that from the account in the private ledger, as kept by Ervin himself, it-- appeared he had fraudulently, at divers times, drawn out of the cash assets of Morris various sums of money, aggregating up to 30th of July 1873 the sum of $80,000; that finding himself so indebted, Ervin, without the knowledge or consent of Morris, fraudulently credited himself, on July 31st 1873, as follows: “July 31st, special pig iron- account. On account of interest to cover notes issued to his order, $100,000;” that said credit was purely fictitious and without consideration or authority from Morris, and was made to conceal large sums due by Ervin to Morris, and which, being illegal and unauthorized, should be disallowed; and that after disallowing this credit the account as kept by Ervin showed that the latter was indebted to Morris $79,740.27; that in the course of business Morris was accustomed to make numerous notes for large sums, and at times drew them to Ervin’s order to have the same discounted; that the books showed that $62,840 of these notes were intrusted to Ervin to negotiate, and that the same were paid by Morris at maturity, although the books failed to show that they were issued, and that Ervin has appropriated the proceeds thereof to his own use and never accounted for the same; that the books of the foundry show that Ervin is indebted to Morris on his private ledger account in the sum of $79,740.27, which, added to the proceeds of the above notes, make an aggregate indebtedness of $142,220.27.</p> <p>The bill further set forth that, because of threatened attachments by certain creditors, moneys received by Morris were deposited at the Seventh National Bank in Ervin’s name, and that the bank has declined to give any information as to the character or amount of money so deposited; that Ervin was also in the habit of depositing money of Morris in Ervin’s personal account at the Second National Bank, and that the true condition of the indebtedness of Ervin cannot by discovered without a copy of the latter’s account with the bank, which the officers of the bank decline to give; that Ervin invested large sums of money of Morris in real estate, in securities and in the stock of the Seventh National Bank, all of which he is about to assign and transfer, &c.</p> <p>Wherefore the bill prayed that an account be stated between Ervin and Morris, and that Ervin be ordered to pay over the amount found to be due; that he be restrained from transferring, assigning or disposing of any real estate, stocks, bonds or other securities- of which he may be. possessed, until final hearing; that the, several banks be restrained from paying out any moneys in their hands or permitting the transfer of any stock in the name of Ervin, and that all. the defendants be compelled to make full discovery in answer to interrogatories filed and appended to bill.</p> <p>Injunction affidavits were annexed to the bill, that of Henry Gr. Morris following closely the averments of the bill.</p> <p>A preliminary injunction issued on the 30th of June 1875, and upon the 13th of July 1875 an application was made to continue the preliminary injunction, which was heard upon bill and affidavits, the defendant Ervin in his counter-affidavit admitting that he was employed by Morris as his commercial manager, but that he was not known as his “ confidential agent and financial manager” and never was so constituted; that the duties of his employment were to purchase materials, collect and procure money and arrange details of contracts ; that the business was under the eye of Morris; that the books were kept under his direction and instruction, and were frequently examined by him, .and he was informed of the course of his financial transactions from the accounts and consultations; that all the books were not kept by deponent, but were in the charge of other persons, and not under the control or supervision of deponent ; that the private ledger kept by deponent was the capital and personal account of Morris to which he had constant access, and which he often examined, and to none of the items contained therein did he ever object, until this bill was filed; that many of the items in said account on the debit side are payments to deponent on account of profits realized from certain purchases and sales of pig iron to which deponent was entitled by express agreement with Morris, a memorandum of which was in writing and signed by Morris and a copy of which is annexed; that Morris and deponent had agreed, that for the purposes of settlement under this agreement the profits should be computed, and that the credit of $100,000 was on account of deponent’s share in the profits of this pig iron speculation, and that it was entered with the consent and agreement of Morris ; that in making purchases of iron deponent had become liable, for from $300,000 to $400,000, on account of Morris, $40,000 of which were still outstanding, and for which deponent had received no consideration whatever; that deponent: denies- that the promissory notes were given to him to have discounted as asserted in the affidavit of Morris; that the money placed to deponent’s personal account in the Seventh National Bank was charged to deponent by Morris in deponent’s personal account in Morris’s private ledger; that deponent was the largest stockholder in the Seventh National Bank before he had any connection with the foundry, and that he had never increased the number of the shares he held at that time; that he never had money deposited in the Second National Bank in which Morris had any interest, and that he was not the owner of real estate. Deponent further denies that he was the agent or trustee of Morris or received any of his property as his bailee and that he has any property which belongs to said Morris or is indebted to him, but that on the contrary . Morris is largely indebted to deponent, which indebtedness is likely to be increased by his insolvency, and the liability of deponent as his endorser for his accommodation of notes outstanding.</p> <p>The following is the decree of the court below:—</p> <p>“ And now, July 13th 1875, this cause having been argued and • considered, it appearing to the court that large sums of money, the property of Henry G. Morris, have come to the hands of defendant, Ervin, as the agent of said Morris, and are still retained by said defendant to the prejudice of plaintiff, assignee of said Henry G. Morris, and the defendant having failed to discover to the court where the said sums are deposited, or in what property or securities the. same are invested or converted, now it is ordered and decreed that the injunction heretofore granted be continued, and the said defendant, Ervin, be restrained from transferring or disposing of any real estate, stocks, bonds or other securities of which he may be possessed; and that the defendant, the Seventh National Bank, be restrained from paying over to said Ervin any moneys standing in his name, or permitting the transfer of any shares of stock standing in his name; and that the defendant, the Second National Bank, be restrained from paying over to the said Ervin any moneys standing to his credit therein.”</p> <p>Ervin appealed and assigned this decree for error.</p>

104. This was an action of replevin, brought by Roumfort, administrator of W. H. Miller, against J. C. McAlarney, for a law library.

<p>Error to the Court of Common Pleas of Dauphin county: Of May Term 1876, No. 98.</p> <p>This was an action on the case, brought November 14th 1874, by Shay against the Pennsylvania Railroad Company, to recover damages for the death of his son, about ten years of age. At the trial before Henderson, J., it appeared that on the morning of June 6th 1874, a passenger train on the defendant’s road, passing through a sparsely settled district within the city limits of Harrisburg, ran over and killed the plaintiff’s son while .walking uppn the defendant’s track; further, that as soon as the engineer observed the boy upon the track every possible effort was made to stop the train. It was admitted that the train hands were competent men, and that the track and train and everything about them were in perfect order. The only negligence attributed to the defendant was that the speed of the train was excessive, and in contravention of the city ordinance regulating the speed of trains. It did not appear that the boy had any right to be upon the track. He was apparently prevented from hearing the train that struck him by the noise made by another train; passing in the opposite direction upon another track. As a complete defence to the action the defendant offered in evidence the following paper:—</p> <p>“Pennsylvania Railroad Company,_</p> <p>Dept.</p> <p>1874 June</p> <p>Know all men by these Presents that I, Oliver Shay, in consideration of the sum of Sixty nine Dollars & fifty cents — to me paid by the Pennsylvania Rail Road Company, do hereby release and forever discharge the said Company from all liability to me, for or on account of the accident to my son, resulting in his death, by being struck by Niagara Exp. West, June 6th 1874, near Lochiel Iron Works.</p> <p>Witness my hand & seal the 18th day of June 1874.</p> <p>Witness Present, Robt. E. Williams. | Oliver Shay, [l. s.]</p> <p>“I certify that the above account is correct, and duly authorized.</p> <p>G-. Clinton Gardner, Gen’l Supt.”</p> <p>“The above account is duly authorized; it has been examined by me, found correct, and is hereby approved.</p> <p>Dis.</p> <p>“ Thos. R. Davis, Auditor.</p> <p>Received, June 18th 1874, of Thomas T. Firth, Treasurer of the Penn. R. R. Co., Sixty-nine Dollars in full of the above account. $69.50. Oliver Shay.”</p> <p>The defendant then rested.</p> <p>In rebuttal the plaintiff offered to prove that he could neither read nor write, and did not know the contents of the paper signed by him, and understood it to be simply a receipt for the funeral expenses of his son, and did not intend to release his claim for damages. To this offer the defendant objected: 1. Because the receipt was in writing and under seal, and could not be contradicted by the plaintiff. 2. Because it was an offer to show that the plaintiff signed the paper without reading it or asking to have it read to him, which would be evidence of such gross carelessness as would prevent his attempting to repudiate it. The evidence was admitted under exception on the ground that “ if the plaintiff was induced to sign through a false representation by the defendant’s agent, and believed that it was only'a receipt for the funeral expenses paid by the company, it would be competent for him to show that the paper or release was thus procured in fraud of his rights.” Shay then testified as follows: “ After boy was killed, too poor to bury. I went to see Williams; I asked him if the company will bear the expense of burying the boy. Telegraph. He told me he will bury. He told me to tell Mr. Boyd to come to depot. He looked after the funeral. Mr. Roal came for me to house. Mr. Williams. I went to see him, paper lying before him; he told me here is receipt of funeral. I signed and he paid me. I can’t read or write. (Release shown witness.) This is my name. I may have signed it twice.”</p> <p>R. E. Williams, the subscribing witness, was then re-called by the defendant and testified as follows :—</p> <p>“ I saw the old gentleman the day after the accident. He asked me what to do as to funeral expenses. I answered back if Shay would sign a release, releasing the company from all damages for his boy, I would pay the funeral expenses. Mr. Shay didn’t object to it; he said he would do so. I then notified Mr. Boyd what had transpired and he went ahead with funeral. I notified Mr. Lockard that Mr. Shay had no objections to sign release when sent. Shay came and I explained why I wanted him to sign twice. He took paper and held it up for two minutes. I then explained it to him and he signed. Got the check cashed for him ; I read the release portion of it to him. I have the telegram from Mr. Lockard; I communicated the contents of it to Shay.”</p> <p>This telegram was then placed in evidence as follows:—</p> <p>“ R. E. Williams. Philadelphia 6. | 6.</p> <p>You had better leave the parents of the boy contract for his coffin and funeral expenses. You can say to them that if they desire you will ask the Co. to defray the expenses after the funeral is over; if you find you can settle the matter by paying the expenses we will do so, but will take a release.</p> <p>(Signed) W. E. L.”</p> <p>The defendant requested the court to charge among other things as follows:—</p> <p>14. The release signed by the plaintiff being in full of all damages occasioned by the death of the plaintiff’s son, it bars the plaintiff’s right to recover in this case.</p> <p>15. It is not competent for the plaintiff, by his own testimony alone to invalidate a release in writing signed by himself.</p> <p>The court, after charging generally on the subject of plaintiff’s and defendant’s negligence, proceeded as follows:—</p> <p>“We come now to the release ; this we say to you is inlaw what it purports on its face to be — a release by the plaintiff to the defendant for all damages by reason of, or arising out of, the death of this boy by the alleged accident on defendant’s railroad; it is in writing ; it is signed; it is under seal; it is witnessed. The consideration is expressed in the writing and imported by the seal. It is valid in law and a complete har, and full defence to the plaintiff’s right to recover in this case, unless you are satisfied from the evidence that he was induced to sign it by false statements or fraudulent representations, that being ignorant, he was deceived as to the contents of the paper, that it was not read to him and its import and effect misrepresented to him, so that the execution of the release was a fraud upon him. Whilst the credibility of the witnesses and phe weight of the evidence is for you, we do not hesitate to say that we fail to see any sufficient evidence to justify the jury in a conclusion of fraud to set aside the written evidence, the release in this case. You have on the one hand attacking the release — the plaintiff, the party in interest, he stands alone and seeks to set aside his solemn deed. He says it was only intended by him as a receipt, but you will observe he signed twice, he says he can neither read nor write, but you will have the paper out with you, and may examine his signature, what he admits he wrote. He says the paper was not read to him, but Williams, the witness to the execution, says he read over and explained it to him, and that it was executed in pursuance of an understanding or agreement that he was to execute it, if the defendant would pay the funeral expenses. If there is any truth at all in the testimony of Williams, a witness, it is true, in the employ of the defendants, but he is in no way interested directly in the result of this suit, it overcomes, certainly meets squarely the testimony of the plaintiff. It explains, and when we consider that the defendant claimed immunity from any damage, it explains the small amount in the release, simply the funeral expenses, which were all that they would consent to pay. But even if we set off oath against oath, we must then let the paper speak for itself, and so speaking does it not deny the right of the plaintiff to recover in this action.”</p> <p>The jury found a verdict for the plaintiff. After judgment thereon the defendant took this writ of error, assigning for error the refusal of the court to answer the defendant’s fourteenth and fifteenth points as requested, and that portion of the charge given above.</p>

108, of May Term 1876. This was an action of trespass on the case, brought by Aaron Bombaugh against J. Peter Miller for obstructing a way of which the plaintiff alleged he had the use.

152. Certified from Eastern District. This was an action brought by B. C. Mitchell against Andrew Aumick upon the following promissory note:— “ $84. Eaton, December 18th 1868.

<p>1. Testator devised §15,000 to his son with direction to pay §8000 to his grandson, §600 when he arrived at the age of twenty-one years and the remainder in six hundred dollar payments annually thereafter until paid; and to his granddaughter §7000 with same direction, “ but in case it should happen that two of the above payments should become due in the same year only one shall be paid to the heir entitled thereto, so that said heirs are paid equally in payments as aforesaid.” Held, that it was the intention of the testator that each heir should receive §600 annually.</p> <p>2. While there is no doubt that of two contradictory clauses in a will the first must give way, and the last take effect, yet the two clauses must refer to the same subject-matter, and the last must be clearly inconsistent with the first. If the main provision plainly covers the whole subject, and is defined in terms that exclude all doubt, and the subsidiary provision may by conjecture be made either general or partial, and may be capable by construction either of subverting entirely or of modifying only the original gift, such subsidiary provision must in the ordinary case be confined to its partial and restricted operation.</p> <p>3. The clearly-expressed purpose of a testator is not to be overborne by modifying directions that are ambiguous and equivocal, and may justify either of two opposite interpretations. Such directions are to be so construed as to support the testators distinctly announced main intention.</p>

<p>A. sold to B., under contracts of sale, two lots. B. paid a small portion of the purchase-money, took possession of the lots and made improvements thereon, to the value of from $2000 to $3000. Creditors of B. levied on his equitable interest therein when he confessed a judgment in ejectment to A., who with knowledge of the levy obtained possession and conveyed to a stranger for a nominal consideration against whom the purchaser at sheriff’s sale under the levy brought ejectment. Held, reversing the judgment of the-court below, that the possession obtained by the holder of the legal title under these circumstances was a fraud upon the lien creditors, and that the purchaser at sheriff’s sale was entitled to recover possession without making a tender of the unpaid purchase-money to the holder of the legal title prior to bringing ejectment.</p>

<p>Error to the Court of Common Pleas of Bradford county: Of January Term 1876, No. 36. Certified from Eastern District.</p> <p>This was an action of assumpsit, brought by William J. Delpeueh, executor of Yalentine Smith, deceased, against the Continental Life Insurance Company of Hartford, Connecticut, to recover $10,000, the amount of a policy of insurance upon the life of said Smith issued by the defendant company.</p> <p>The application was made by Smith on the 20th of December 1870, and was accepted and the policy issued on the same day by the company, at an annual premium of $448.80. It was stipulated in the policy that the $10,000 should be paid ninety days after due proof of Smith’s death, which occurred on the night of September 16th 1873. Smith left his home in Sheshequin on the night in question at about half past , 10 o’clock for the alleged purpose of going to Ulster to procure medicine for a sick daughter. Sheshequin lies on the east and Ulster on the west side of the Susquehanna river, and there being no bridge at this point, the usual mode of crossing 'is by ferry or by fording. Smith not returning after a lapse of several hours, search was made for him, and his horse was found wet up to his neck and mane on the Sheshequin side of the river, and in the morning Smith’s dead body was found in the river a few rods below the fording place. Proof of his death was duly made and received by the insurance company, who refused to pay the amount of the policy, alleging as the reason for their default, that Smith had committed suicide, and that the policy contained a clause, that if the assured should die by his own hands either voluntarily or involuntarily, sane or insane, the policy should be void. This action was brought to secure the amount of the policy with interest from February 1st 1874.</p> <p>The original process in the case was directed to the sheriff of ' Philadelphia county, “to serve the same upon D. S. Burnham, general agent and attorney for- said company, at No. 430 Walnut street, Philadelphia.”</p> <p>The return was, “ Served the Continental Life Insurance Company of Hartford, Connecticut, by giving a true and attested copy of the within writ to D. S- Burnham, general agent,” &c.</p> <p>It was alleged by defendant that the sheriff of Philadelphia county had not made a legal return of -service of the process, and to contest its validity counsel entered their appearance de bene esse for the company, who obtained a rule to show cause why the proceed-' ings should not be quashed, which rule, after argument, was dis-’ charged.</p> <p>Smith’s executor then entered á rule to have arbitrators chosen, a copy of which rule was served upon defendant by giving the same to the counsel who had appeared to contest the validity of the service. Arbitrators were chosen and an award filed in favor of plaintiff for $10,385. The company appealed from this award and filed a recog-nisance in the sum of $200, conditioned for the payment of costs only. Plaintiff then asked that the appeal be stricken off, on the ground that this recognisance was not such as is required by the Act of March 21st 1849, which provides that in all such appeals by foreign corporations, bail absolute shall be given for the payment of such sum as shall finally be adjudged to be due to plaintiff, and the appeal was stricken off by the court. Counsel for defendant-then procured a rule to show cause why the recognisance should not be perfected, and pending this rule the following agreement was entered into:—</p> <p>“And now, February 3d 1875, it is agreed that the judgment- and decree of said Court of Common Pleas in this case, by which the appeal by defendant from the award of arbitrators was stricken off, be annulled, provided that said1 defendant shall, within ten days from the date hereof, perfect said appeal by giving good and sufficient bail, in the nature of bail absolute, in the sum of twelve thousand dollars, for the payment of such sum or sums as shall be finally adjudged to be due to the said plaintiff, together with interest and costs thereon. And it is agreed that such bail may be taken and approved before the President Judge or Assistant Law Judge of the Court of Common Pleas of Luzerne county,Pennsylvania, and be filed in said Court of Common Pleas of Bradford county. And it is further agreed that said case shall be tried in said Court of Common Pleas of Bradford county before said court (and a jury), and that the same shall not be removed into any other court or jurisdiction; provided, however, that either party may carry the same into the Supreme Court of Pennsylvania for any alleged error (which may be reviewable) on the trial in said Court of Common Pleas of Bradford county. And it is further agreed, that upon any trial of said case in said Court of Common Pleas of Bradford county, said defendant shall not set up nor. attempt to maintain any defence, except that said Yalentine Smith came to his death by an act of suicide.</p> <p>[Signed,] Peet & Davis,</p> <p>Attorneys for plaintiff.</p> <p>[Signed,] Smith & Montayne,</p> <p>Attorneys for defendant.”</p> <p>On the trial before Morrow, P. J., defendant, to sustain its allegation of suicide, relied upon the folloiving facts and circumstances disclosed by the testimony on its behalf: That Smith was a spiritualist and had peculiar and eccentric notions about religion and death; that he professed to have communications from the spirit world, and believed that after death he could, from the spirit land, control his affairs in this world; that at the time of his death he was involved financially; that he had discussed what was the easiest mode of dying, and had expressed the belief that drowning was; that he declared his creditors should have no concern, that he had a life insurance, and had beaten insurance companies before and would beat this one; that there was no need to cross the river to see a physician, on the night of his death, as there were two in his village; that he divested himself of certain portions of his apparel before leaving his house, laying aside his watch and pocket-book; that his body was found in shallow water, about fifty feet from the shore, and with no marks of violence and that he was an expert swimmer; that the dead body of a man would be carried by the current of the river in an opposite direction from that where found, and that if Smith had lost his way, and gotten into the deep water, his body could not have drifted into the shallow water where found.</p> <p>There was evidence on the part of plaintiff, that Smith was cheerful and rational on the day previous to his death; that he had changed his clothes at the suggestion of his wife, and hung up his watch as was his habit; that the night was foggy and dark; that the horse was found with his mane and tail wet; that his tracks were discovered leading into deep water below the fordway; that a body would drift from the deep water into which the horse’s tracks led to the point where the body of Smith was found, and that there ivas a contusion on his head near his eye.</p> <p>The questions raised were submitted in twenty assignments of error, which are herewith presented as briefly as a proper understanding of them will permit, and for convenience in the order in which they are reviewed in the opinion of this court.</p> <p>The first and second assignments of error were the refusal of the court to quash the return to the writ on the ground that there had been no legal service on the company; and to grant an appeal from the award of arbitrators made against defendant.</p> <p>Tenth assignment; the rejection of the offer of defendant to show a suicidal tendency in Smith’s family and to prove that Smith’s brother had committed suicide, and that decedent had fraudulently concealed this fact from the company.</p> <p>The eleventh assignment, in rejecting the above offer because it was in conflict with the agreement of February 3d 1875, stipulating that the company should not set up any other defence than suicide ; the company averring that said agreement had been procured from its attorneys under legal duress, and that the fraudulent concealment of the death of Smith’s brother by suicide had only come to the company’s attention since decedent’s death.</p> <p>The ninth assignment, the rejection of defendant’s offer to prove by a witness that in 1861 he was in the employ of Smith, whose wife requested him one day to accompany her to the barn, as Mr. Smith had just gone there, having threatened to hang himself.</p> <p>Twelfth and sixteenth assignments, the rejection of offers by defendant, for the purpose of rebutting and contradicting the evidence of Mrs. Smith, to prove by witness that Mrs. Smith had called on witness and wanted to get a horse from him to sell in order to pay premiums that were about to fall due on a policy of life insurance; that she said that Valentine Smith was not going to live long, and that his life insurance was their only salvation; and that deceased had told her before his death to go to witness and to get the horse to raise money for the purpose named.</p> <p>The thirteenth, fourteenth and fifteenth assignments, the rejection of offers to prove by an insurance agent that before his death the decedent called upon witness to procure an accidental policy, payable only in case of death, to run for one year only, and that a policy was accordingly issued for $5000; and to prove by asking the widow of decedent if the latter had not informed her that he had taken out this policy, and that she had received the amount of the policy after his death.</p> <p>The fifth assignment was the rejection of an offer to prove by witness that he had made a trial of the river when the water was about the same stage as when Smith was drowned, and that a boat placed on the surface of the water near the lower side of the ford floated to the opposite shore from ivhere Smith’s body was found, and that witness was familiar with the river, and that in his judgment the current where the test was made was the same as when decedent was drowned.</p> <p>The seventeenth assignment was the admission of evidence on the part of plaintiff to prove as rebutting evidence that a body getting into the river on the Sheshequin side of the ford and below the ford would float into the cove where decedent’s body was found, and that at the time of the drowning there was an eddy just below where the body was found, and a current on the east side of the river along a gravel bar.</p> <p>The eighth assignment was the rejection of defendant’s offer to prove by witnesses as experts that it was physically impossible for the body of a man being in the water on the day decedent was drowned to float to the point where Smith’s body was found.</p> <p>. The eighteenth assignment was the admission of offer of plaintiff to prove by Mrs. Smith conversations between herself and. hus•band, between herself and other persons, and between her husband and other persons when she was present, to which conversations her attention had been called by defendant when called and cross-examined on part of defendant.</p> <p>Defendant offered to prove by witness that decedent had had frequent conversations with him relating to spiritualism, immediately preceding his death, in which he -stated that he could have communication with his family, and conduct his personal affairs, the same after death as before, at Avhich times he also -talked of drowning as the easiest method of dying; that it was a momentary struggle only and all was over ; and that a man droAvning would see beautiful scenes ; and Avould always remain in that state, after droAvning, in his spiritual existence.</p> <p>The court admitted evidence of conversations as to drowning, an.d that decedent was what was called a spiritualist, and rejected the rest of the offer, AYhich constituted the third assignment of error.</p> <p>Defendant also offered to prove by witness that Smith declared before 'his death his belief in spiritualism; his belief that he would exert the same control over the -management of his property after . death as in life; that he would hold communion with his family after death; that he had information from the spirit world that he would not live a long time, and would die a violent death; to be followed by evidence of his making preparations immediately before his death, anticipating that event, together with the circumstances attending his death. Admitted as to the fact that decedent Avas a spiritualist, but rest of offer rejected. This was the fourth assignment.</p> <p>The sixth assignment was the rejection of offer to prove by witness that, before decedent’s death, witness was in the barn with him and Mrs. Smith, and decedent pointed out to his Avife Avhich was his property and Avhich that of his tenant.</p> <p>The nineteenth assignment was in affirming the first point of plaintiff, as follows:—</p> <p>“That the defendant in having put in the defence, that the assured came to his death by suicide, the presumption of law is, that when death Is either by accident or suicidal that he came to his death by accident.”</p> <p>• The twentieth assignment Was in. refusing to affirm defendant's eighth point, which was in these words: “It being an admitted fact in the case that the decedent was a swimmer, and that his dead body was found in water only seventeen inches in depth, and without any marks of violence upon it, the presumption of law is, that his death was by suicide.”</p> <p>The court in the general charge said: “Do you believe Smith’s death was an act of suicide ? If you do believe it, then it is necessary for you to consider all the plaintiff’s rebutting testimony. And here it is proper to remark again, the burden is on the defendant; the presumption is the drowning was accidental. The evidence of the defence must overthrow this presumption and establish the fact of suicide, or else the defence fails. If he were insane and was drojvned accidentally the defence fails.</p> <p>“We cannot say that a belief in what is called spiritualism excites to self-murder, or tends thereto. The evidence that Smith was a spiritualist was admitted, because his declarations relating to short life, violent, sudden death, &c., were in connection with that belief, and because death by drowning followed so soon after these declarations were made. Indeed, no one fact proved by the’ defendant makes out the defence; but it is claimed by defendant’s counsel that all their evidence taken together establishes the fact of suicide; and yet, gentlemen, may not all these facts be true, and Smith’s death have occurred by accidental drowning ? This is a matter for your consideration.”</p> <p>The verdict was for plaintiff for $11,000, and defendant took this writ of error, and the assignments of error were those heretofore enumerated.</p>

55. Certified from Eastern District. This Avas an ejectment for a tract of land in Sugarloaf toAvnship, Luzerne county, in the warrantee name of Samuel Rope, containing about four hundred a'cres, brought by Theophilus T. Deringer and others, the heirs and legal representatives of Henry Deringer, deceased, against Charles S. Coxe and others.

120. Covenant by Thomas B. Farrington against John A. Woodward, to recover damages for a breach of an agreement for dissolution of partnership between the parties. On July 25th 1866, Woodward and Farrington formed a partnership for the purpose of manufacturing water-pipe, &c., at Williams-port.

<p>Error to the Court of Common Pleas of Clinton county: Of January Term 1876, No. 27. Certified from Eastern District.</p> <p>In the court below this was an aetion of covenant, brought by John P. DeHaas against A. J. Quigley and Joseph H. Bailey.</p> <p>The action was founded upon the following agreement:—</p> <p>“Agreement made and concluded this twenty-third day of August 1871, by and between Joseph H. Bailey and A. J. Quigley, representing the Clinton and Potter County Navigation Co., of the first part, and John P. DeHaas of Curtin township, Centre county, Pa., of the second part, as follows: Witnesseth that the aforesaid Bailey and Quigley, agents for said Navigation Co., agree to pay the aforementioned John DeHaas four thousand dollars and fifty-hundredths, in manner and form hereinafter described, in consideration that the said DeHaas fully execute and perform, according to contract, the following work, viz.:—</p> <p>“ He, the said John DeHaas, shall build in a good and substantial manner, as flood-dams should be built, on such streams, cribbed, sparred, puddle ditched, calked and gravelled, two flood-dams, each twenty feet high, with barn-door-gates and drop-gates; the chute to be twelve feet wide, and so constructed that the drop-gates will let off the water at least to a sufficient depth below the barn-door-gates as to allow them to close with ease. These gates to be made secure, and arranged with fastenings, so as to be easily opened and closed. These dams to be constructed, first below the twelve-mile' shanty on the Monument branch of Youngwoman’s creek, and the other about a mile above on a branch of said Monument branch.</p> <p>“ He also agrees to put a new chute in the old dam at the eleven-mile shanty twelve feet wide, and clean out, crib up and straighten the said creek from the ten-mile shanty at every point where it may need cribbing or straightening or altering its course to the upper dam, a distance of about three miles: And it is also agreed on the part of the said Bailey & Quigley, that they will pay the said DeHaas at the rate of fourteen hundred dollars for each dam, one thousand dollars for cleaning out and cribbing up the creek, and two hundred dollars for the chute in old dam, and in addition fifty dollars for travelling expenses. Out of all the above estimated costs of each of the respective divisions of work they shall be privileged to retain fifteen per cent, until the whole is completed in a satisfactory manner according to contract.</p> <p>“ The drop-gates shall be constructed at the side of the barn-door-gates, with such arrangements for raising as to be done with facility, and also that the chute in the old dam shall be constructed at least seventeen feet wide, instead of twelve feet, as above stated.</p> <p>“ The’above work to be paid for as the work progresses from time to time.</p> <p>“ It is also agreed that John M. Mason shall be the judge of whether the work is done according to contract.</p> <p>“ In witness whereof we have hereunto set our hands and seals, this day and year above mentioned.</p> <p>A. J. Quigley, [seal/</p> <p>J. H. Bailey, [seal/</p> <p>J. P. DeHaas, [seal.]”</p> <p>Defendants pleaded non est factum, covenants performed, absque hoe.</p> <p>The purpose of this agreement was to malee navigable the stream called Youngwoman’s creek, so that logs could be floated or driven down its waters to the Susquehanna river and thence to market.</p> <p>The plaintiff alleged that he had done the work called for in the agreement in accordance with its terms, and sought in this suit to recover the balance due upon the contract.</p> <p>The defence was that the defendants were not individually liable ; that the work was not performed as required by the terms of the agreement and that the plaintiff could not recover until it was shown by John M. Mason, who was the arbiter selected by both parties, that the work had been done according to the contract.</p> <p>1. Having proven the execution of the contract plaintiffs offered in evidence the agreement between the parties to this action.</p> <p>Defendants objected, on the ground that the paper offered in evidence was not identical with that described in offer, the paper offered purporting to be a contract or agreement between the plaintiff and defendants as representing the Clinton and Potter County Navigation Co., and as agents of the said company, and not a contract with them in their individual or personal capacity. Objection overruled, evidence admitted, and exception.</p> <p>2. The agreement being in evidence, it was proposed to show by witness that plaintiff did the work specified in contract in good faith, and that defendants accepted the same and used it for the purposes intended.</p> <p>Objection, because the only competent witness to prove that the work was done in accordance with contract,.was John M. Mason, who was named as sole judge; and unless he proves performance of the entire contract, plaintiff cannot recover. Overruled, evidence admitted, and exception.</p> <p>3. Also, to prove by witnesses the nature and amount of the work done by plaintiff. Same objection, overruled, evidence admitted, and exception.</p> <p>4. It was proposed to be shown by a witness that, about the time the work was being finished, John M. Mason came upon the ground with one of defendants and plaintiff to inspect the work, and gave directions as to what was to be done by plaintiff to complete his contract, and that he expressed himself as satisfied with the work, with a few exceptions which were designated by him, and the plaintiff immediately had the work done as directed.</p> <p>Objection that offer is vague, not specifying what directions were given, what language used by Mason,' what exceptions made by him; that, not being a party to the contract, his declarations were not admissible, and that Mason himself was in court, and that he is the proper witness'to prove these facts. Overruled, evidence admitted, and exception.</p> <p>5. It was proposed to prove by plaintiff’s testimony what directions Mason gave him in relation to the work, and that these directions were complied with.</p> <p>Objection that defendants not being present, the alleged conversation between plaintiff and Mason is not evidence to affect them, and that Mason was not empowered to give directions as to what work was to be done. Overruled, evidence admitted, and exception.</p> <p>Defendants made the following offers of evidence:—</p> <p>1st. The Act of Assembly incorporating the Clinton and Potter County Navigation Company; minute-book showing organization of company; resolution of the company under which Bailey and Quigley were authorized to make a contract for cleaning the stream and putting it in condition for floating logs, to be followed by proof that the contract in evidence was made in pursuance of that resolution.</p> <p>Objection, excluded, and exception.</p> <p>2d. To ask defendant Quigley whether, when the contract was made, he did or did not explain to DeHaas the fact that defendants were contracting for the company, or the capacity in which they were contracting with him.</p> <p>Objection, excluded, and exception.</p> <p>3d. Bailey, one of defendants, asked to state whether the payments were ‘made under an arrangement with the company and whether they were made for their account.</p> <p>Objection, excluded, and exception.</p> <p>Defendants submitted three points:—</p> <p>First point. That the agreement of the 23d day of August 1871, in evidence, and its supplement of the 6th of September 1871, also in evidence, do not in law import an individual or personal liability or obligation upon the defendants, and that upon said agreements the plaintiff is not entitled to recover against the defendants, and the verdict of the jury should be for the defendants in this action.</p> <p>Second point. That John M. Mason being the person named in the agreement by the parties, who is to judge whether this work was done according to contract, the plaintiff is bound by the terms of the said contract, and not having shown oj; proved an award or decision of said judge, or in any manner accounted for his failure to do so, or that the judgment of said John M. Mason was ever sought, refused or obtained, the plaintiff is not entitled to recover, and the verdict of the jury should be for the defendants.</p> <p>Third point. That John M. Mason having been chosen by the parties as judge whether the work referred to in the contract was done according to contract, there can be no recovery by plaintiff until he has proved by said John M. Mason that he performed his contract full and entire according to the terms thereof; and inasmuch as said John M. Mason was in attendance upon court during the trial of the cause, and was not called as a witness- for the plaintiff to prove performance, the plaintiff has failed to make out such a case as would entitle him to recover, and the verdict of the jury should be for the defendants.</p> <p>The court answered:—</p> <p>“ The first point is refused and the second and third points are answered as follows-: By the terms of the contract between the plaintiff and defendants, John M. Mason was chosen to judge _ whether the work was done according to contract, and if the evidence does not show that in the judgment of Mason the work was done in accordance with the stipulations of the agreement, the plaintiff is not entitled to recover; but if the jury should believe the testimony of DeHaas, that Mason went upon the work, made an examination of what had been done under the contract, gave directions as to what was yet necessary to be done to make the work satisfactory, we are of the opinion that the requirements of the contract have been satisfied, and that the plaintiff is entitled to recover whatever may be due to him under the contract, if the evidence shows that DeHaas went on in good faith and completed what Mason directed should be done in order to make the work satisfactory.”</p> <p>The court (Mayer, P. J.) charged the jury :—</p> <p>“ But it is contended by the plaintiff that this is not an entire, but a severable contract, and that the plaintiff is entitled to recover the price specified in the agreement for each item of work, if the evidence should satisfy the jury that plaintiff has fully performed that item of work in accordance with the terms of the contract. A careful consideration of the agreement between the parties leads us to the conclusion that this is not an entire, but a severable contract, for the reason that the work to be done by the plaintiff under the agreement consisted of several and distinct items, and the price to be paid by defendants is apportioned to each item of work. For instance, the plaintiff was to build two dams, for which he was to receive $1400 each. He was to clean out and crib up the creek, for which he was to be paid $1000, and he was to put a chute in the old dam, for which he was to be paid $200. The agreement further provides, that the defendants were to retain 15 per cent, out of all the above estimated costs of each of the respective divisions of work. As was said by Justice Williams, in Lucesco Oil Co. v. Brewer, 16 P. F. Smith 855, ‘ if the consideration is single, the contract is entire, whatever the number or variety of items embraced in the subject; but if the consideration is apportioned expressly or impliedly to each of these items, the contract is sever-able.’</p> <p>[“ This being our construction of this contract, we say to the jury that DeHaas is entitled to recover the price stipulated to be paid for each of these several items of work, if the evidence satisfies the jury that he has fully performed and completed these several items of work in accordance with the terms of the contract.]</p> <p>“ The agreement stipulates that John M. Mason was to be the ‘judge of whether the work was done according to contract.’ De Haas having undertaken in pursuance of the provisions of the agreement to build the two dams, clean out the stream, crib and straighten it, and also to put in a chute in the old dam, a kind of work which required some skill and practical knowledge, and from ,the doing of which disputes might possibly arise, it was proper that the parties to the agreement should mutually select some competent person, who should determine whether the several items of work specified in the agreement were being done according to the contract. It was no doubt with this view that John M. Mason was chosen [and, according to our understanding of the agreement, Mason had the right to direct DeHaas in regard to the work and determine whether it was being done according to contract. He had the right to go upon the work while the dams were in process of erection, while the stream was being cleared, cribbed and straightened, and while the chute was being built, for the purpose of determining whether DeHaas was doing the work according to the terms and specifications contained in the contract.”]</p> <p>The verdict was for the plaintiff for $1001.41, and judgment was entered on the verdict.</p> <p>Defendants took this writ, and their assignments of error were:—</p> <p>1, 2, 3, 4 and 5, to the admission of plaintiff’s evidence in the order of the offers made.</p> <p>6, 7 and 8. The rejection of defendant’s first, second and third offers in their order.</p> <p>9. The refusal of defendant’s first point.</p> <p>10. Of the second and third points.</p> <p>11 and 12. The parts of the charge in brackets.</p>

99. Certified from Eastern District. This was an application in the court below, by the Commonwealth ex rel.

<p>Error to the Court of Common Pleas of Warren county: January Term 1876, No. 135. Certified from Eastern District.</p> <p>Ejectment, begun May 1st 1873, by Cynthia Miller and others, against Darwin Wentworth. The plaintiffs claimed title as heirs at law of Clarissa Howd; the defendant claimed under a deed to himself from Sylvester and Clarissa Howd.</p> <p>In March 1867, Clarissa Miles, being seised of the property in question, married Sylvester Howd, at the advanced age of seventy-one years. In the spring of 1871, Howd and his wife sold the property to Wentworth, for $13,429.65, of which part had been paid at the time this action was brought, and the larger part was secured to be paid. On May 1st 1871, they executed a deed for the premises to Wentworth. The sufficiency of the acknowledgment of this deed by Mrs. Howd raised the first question in the case. It appeared that the deed was destroyed by fire in November 1872. At the trial, on December 7th 1875, after proof of its loss, J. C. Hamilton, the justice of the peace before whom the acknowledgment had been taken, testified that the certificate of the acknowledgment of the deed was in these words:—</p> <p>“Be it remembered that on the 1st day of May 1871 before me, a justice of the peace in and for said county, personally appeared the above-named Sylvester Howd and Clarissa M. his wife, and acknowledged the above indenture to be their act and deed, and desired the same might be recorded.. She, the said Clarissa M. Howd, being of full age, and by me examined separate from her said husband, and the contents of the within indenture being first fully made known to her, acknowledged that she signed, sealed and delivered the same without any fear or compulsion from her said husband.”</p> <p>Hamilton was called by the plaintiffs in rebuttal, and testified as to what took place when the deed was acknowledged before him:—</p> <p>“ I took the deed all drawn. I informed them I had the deed, and my impression is I read the whole deed, but cannot state positively. I asked in substance if they acknowledged it to be tbeir act and deed. Mrs. Howd made no reply in words; Mr. Howd said nothing. Mrs. Howd then signed the deed, and I turned to Mr. Howd, and asked him to sign the deed, and he made the remark that it would not be necessary. I said it would be worthless without his signature. He said it was his wife’s, and he had nothing to do with it; but he finally signed it. After he signed it, I took it with me to the office, and that ended the interview.</p> <p>“ Mrs. Howd was sitting to my left; Mr. Howd rather facing me and her. They remained in that position. She went to the table and signed it, and resumed her seat, and he did the same. They were four to six feet from me, and facing me. It was a number of days before I delivered the deed to Wentworth. I recollect of nothing said at the time of the acknowledgment about my delivering the deed. Mr. Howd, a few days after, directed me to deliver the deed, and counted out some money to pay for stamps. I delivered the money to Wentworth — $13.50. The deed had not been stamped. Mrs. Howd was in the room when Howd told me to deliver the deed, and the note was taken for purchase-money. I saw or heard no noise or threats or menaces from Mr. Howd. I asked her if she acknowledged it to be her free act and deed, and she gave a little laugh and signed it. I asked her the question and she signed it after. It was all closely connected.”</p> <p>There was no evidence of any fraud or duress in obtaining Mrs. Howd’s acknowledgment, and Wentworth had no notice of any irregularity in the way in which the deed was acknowledged.</p> <p>The other question- in the case was, whether a copy of a lost instrument which had never been stamped, reconstructed principally from memory and never compared with the original, was such a “ copy” as could be stamped under the Act of Congress of 13th June 1874. The facts on which this question arose were these: The original deed was delivered to Wentworth unstamped. At the time of its execution, the grantors gave him $13.50 with which to purchase stamps for it. Wentworth never bought the stamps, but, after a time, used the money given him by Howd for other purposes. The deed was in his possession unstamped for more than a year, although during that time he had opportunities for buying stamps for it. It was unstamped when it was destroyed by fire in November 1872. It had never been recorded.</p> <p>On March 4th 1875, one Wiggins, executor of Sylvester Howd, caused a copy of this deed to be made and produced the same before the president judge of the Common Pleas of Warren county, for the purpose of affixing the proper stamps thereto. Stamps to the amount of $13.50 were duly affixed to this copy and cancelled by Wiggins in the presence of the judge, and a certificate of these facts made according to law by the judge upon the copy. The same witness, Hamilton, testified that the circumstances under which this copy was made were these: “I was a surveyor by profession ; I made a survey of the land before I made this deed; I made a survey, taking notes; I made a draft from the notes after the survey; I made the draft and found errors in the chaining; 1 resurveyed the ground and made notes of the resurvey; I copied the survey, as corrected, into a book; I made a draft of the two pieces on one paper. I was called on by W. D. Brown for a draft of the land in the deed. I furnished him a description; I had the draft before spoken of from the corrected survey; from that I copied the description I furnished to W. D. Brown for the bill to perpetuate evidence; I did not compare the description I handed Mr. Brown with the draft from which I made it; I made it in part from memory, aided by the draft, and part I knew without any draft, as I was familiar with the ground; I relied chiefly on the draft, although I had it in memory clearly; I never compared the description I made out with the description in the printed bill; I made the copy of the deed shortly before the first trial of this case; I took the description from the printed bill; I got the printed form of the deed from Amri Davis; I think it is like the form of the deed I first filled up; I made no comparison of this form with the form of the other deed I drew; I never compared the description in this with the description in the printed bill; I mean by copy my recollection of the original deed, assisted by what papers I had; they are the same grantors and the same grantees, and the paper includes the land described in the writ; there was other land in the deed besides what is described in the writ; my knowledge of contents is from memory, aided by all the papers; I do not know what became of the draft; there may be a variation in the words and forms of the words.”</p> <p>The court below (Wetmore, P. J.), under exception by the plaintiff, ruled that the copy stamped was a sufficient copy under the Act of Congress, and that the original deed was thereby restored to competency as an instrument of evidence, and, proof having been made of its loss, admitted secondary evidence of its contents.</p> <p>The court charged, in effect, that the stamp laws had been sufficiently complied with, and further, that Mrs. Howd’s acknowledgment was sufficient to pass her title.</p> <p>Verdict for defendant and judgment, to which the plaintiffs below took this writ of error. The assignments of error raised the two questions mentioned above.</p>

124. Certified from Eastern District. This was an appeal by N. B. Lane from a decree of the Court of Common Pleas distributing the proceeds of the sale of the personal property of H. M. Brockway. The facts as they appeared before the auditor appointed to distribute the fund in court were as follows :— Brockway, who was the owner of a large lumber establishment in Elk county, became insolvent.

<p>Error to the Common Pleas of Sullivan county: January Term 1876, No. 126. Certified from Eastern District.</p> <p>This was a writ of error taken to an order of the court below making absolute a rule to show cause why the acknowledgment of a sheriff’s deed should not be stricken off and a sheriff’s sale set aside.</p> <p>The following are copies of the two notes in which the proceedings originated:—</p> <p>“$70.85. Dushore, Pa., December 27th 1871.</p> <p>One day after date, for value received, I promise to pay to Jackson Brothers, or bearer, the sum of seventy dollars and eighty-five cents, with interest, without defalcation or stay of execution; and I do hereby confess judgment for the same, with costs of suit, and waive the right of inquisition or appeal and all the exemption acts of the state of Pennsylvania.</p> <p>Witness my hand and seal.</p> <p>his Volentine X Morter, [seal.] mark</p> <p>Witness:</p> <p>Hugh Prislin.”</p> <p>“$112.58. Dushore, Sullivan county, Pa., June 23d 1874.</p> <p>One day after date, I promise to pay George D. Jackson & Co.,, or bearer, one hundred and twelve and 58-100 dollars, with interest, for value received; and I do hereby confess judgment for the above sum with costs, waiving the right of inquisition, stay of execution and all exemption laws.</p> <p>Witness my hand and seal.</p> <p>his > Volentine X Morter, [seal.] mark</p> <p>Witness:</p> <p>Levanah Morter.”</p> <p>Judgments were entered upon these notes on December 30th 1871, and June 28th 1874, respectively; on August 15th 1874, both judgments were marked to the use of Jacob Hoffa. Writs of fieri facias were issued on both judgments to September Term 1874, and under them certain real estate of Morter was sold by the sheriff on September 22d 1874, for $545, to Jacob Hoffa. Upon the day after the sale a sheriff’s deed was executed and acknowledged in open court. A rule of court provided, that before the acknowledgment of a sheriff’s deed, “the process under which the sale shall have been made shall be duly returned and filed with the prothonotary.” It appeared, however, that the above writs of fi. fa. were not returned till after the acknowledgment of the deed. It did not appear by the record that the deed had ever been recorded or delivered to Hoffa. On the day of the acknowledgment of the deed, the court appointed an auditor to distribute the fund in court arising from the sale. On December 15th, proceedings for distribution were stayed, and on December 18th 1874, the court granted a rule to show cause why the judgment should not be opened and the defendant let into a defence, and the sale of the property set aside. This rule was afterwards discharged.</p> <p>On March 30th 1875, the court, on petition of Morter, granted the rule on Hoffa upon which these proceedings are based, to show cause why the sale should not be set aside and the acknowledgment of the sheriff’s deed stricken off. The grounds upon which'the rule was taken were: fraud in procuring the waiver of inquisition and fraudulent representations made by Iloffa which deterred persons from bidding at the sale ; as to the first ground the facts tending to prove fraud in procuring the waiver of inquisition are unimportant, as Morter was held to be estopped from setting them up in avoidance of the sale. The facts creating the estoppel appear fully in the opinion of the court.</p> <p>As to the other ground taken, there was contradictory evidence in the depositions. There was evidence that two weeks before the sale and also at the time of the sale, Iloffa had made statements to various persons that whoever bought the property at the sale would be obliged to support Michael Morter during his lifetime and to pay a sister of V. Morter $100. Hoffa denied making any such statements. A witness also testified that he was a bidder at the sale for $540, and would have bid $1000, had it not been for the above statements of Hoffa to him. The court below was of opinion that fraud on Hoffa’s part was established by the proofs, and this finding was accepted by this court as a fact.</p> <p>The court below (Ingham, P. J.) made the rule absolute, being of opinion that it was within the discretion of the court to strike off an acknowledgment not made in accordance with the rules of court; that the waiver of inquisition was obtained by fraud, and was therefore void as to Morter; and that the purchaser at the sheriff’s sale had obtained the property at a low price by fraudulent representar tions made at and before the time of the sale.</p> <p>To this judgment of the court below, Hoffa took this writ of error, and assigned for error in substance that the court erred in striking off the acknowledgment of the sheriff’s deed, and setting aside the sale.</p>

<p>Certiorari to the Quarter Sessions of Warren county: Of January Term 1876, No. 226. Certified from Eastern District.</p> <p>These were proceedings begun by John F. Davis and twenty-five other qualified electors of Warren county to contest the election of Wheelock to the office of county commissioner.</p> <p>The petition set forth that the officers of an election held November 2d 1875, had returned 1904 votes as cast for Wheelock, and 1854 votes for Darius Mead, and that the election was illegal, (1) because “ in the election district of Pine Grove the election was not held at the house of John Russell, the place fixed by law and designated in the sheriff’s proclamation, but was in fact held at a place forty rods distant therefrom, to wit, at the school-house in the village of Russellsburg; ” (2) because “at the said election held in the district of Freehold, there was no copy of the corrected assessment as furnished by the assessor of said district to the commissioners of said county, containing the names of all persons returned by the said assessor as resident taxables in said election district, present at said election; nor was there any registry of voters present at the same, whereby the names of the resident taxables and voters of said district could be ascertained.”</p> <p>The petitioners further averred: “ That, for the reasons specified in this petition, the votes in the said election districts of Pine Grove and Freehold ought to be rejected and not counted, which would give to the said Darius Mead 1724 votes and the said E. R. Wheelock 1609 votes for the office of county commissioner.”</p> <p>The court below (Wetmore, P. J.) thereupon granted a rule upon Wheelock to answer the petition. Before the hearing of this rule, counsel for Wheelock moved to quash the petition, (1) because the facts set forth in it were insufficient in law to justify the setting aside of the entire poll, or in any way to change the result as returned by the election board, there being no allegation that any person voted at said election who was not duly registered as required by law or that any person was illegally prevented from voting, or that there was any fraud or mistake in the manner of holding the election; (2) because the alleged illegality in the district of Pine Grove was not sufficient of itself to change the result of the election. The court granted a'rule to show cause why the petition should not be quashed and afterwards made this rule absolute.</p> <p>The following opinion was delivered:—</p> <p>“ The question presented by the petition is, whether the fact that no copy or list of the resident taxables and voters was present at the election board on the day of election makes the election void, and requires us to set aside the entire poll.</p> <p>“ The first and second sections of the Act of 30th of January 1874, directs the mode of completing the list of taxables, and describes the duties of the assessors and county commissioners in connection therewith. The third section of the same act requires the county commissioners to make a full and correct copy of the resident taxables in each election district, and to furnish the same, together with the necessary election blanks, to the officers of the election in such election district, on or before seven o’clock of the morning of the election. * * * *</p> <p>“ It is a general rule that, when a person is required to do an act, the not doing of which would make him guilty of criminal neglect of duty, if shall be intended that he has duly performed it: Broom’s Legal Maxims 913. We therefore presume, in the absence of evidence to the contrary, that the election was duly held at the time and place fixed by law, and by the proper officers, who were duly qualified, and that the persons voting were legal voters in the election district.</p> <p>“An election is the embodiment of the popular will, the expression-of the sovereign power of the people. When the application of technical rules and a strict construction of the acts of the officers, in preparing the election papers and conducting an election, would tend to defeat the will of the people and change the result of an election for an important office, they should not be applied, and all reasonable intendments should be made in favor of the legality of their proceedings. When, however, it is alleged that there is actual fraud in the election, or that the ballot-box has been tampered with, or illegal votes received, or the careless or fraudulent acts of the officers have mixed and confused the ballots, the duty of the court is equally plain, and every legal facility should be afforded to purge the poll; and when the acts of the officers are so frandulent and irregular that the result cannot be ascertained, then the entire poll is rejected. These are substantially the conclusions of the judges in the-contested election cases in Philadelphia in 1845, 1850 and 1858, reported in 2 Pars, and 1 and 2 Brewst.</p> <p>“The State Constitution, art. 8, sect. 1, gives to every citizen possessing the qualifications prescribed, the right to vote, and section 7 of the same article provides that no elector shall be deprived of the privilege of voting by reason of his name not being registered. To disfranchise all the voters of a township, as we are asked to do in this petition, the facts on which we are required to act should show a case free from legal doubt. If we, by our decision, should permit the carelessness or even the fraud of officers whose duty it is to furnish a list of voters at the election, to defeat the election and deprive the people of the oounty of the officer who was elected by a majority of their votes, we would thus make the people suffer for an act in which they did not participate, and which they did not sanction. In so doing, instead of punishing an officer for the violation of the election law, we practically punish the voters of the county by defeating their choice of a county officer as declared at the election. A decision of this kind would be fraught with danger, by inviting unscrupulous or unprincipled persons, on the eve of an important election, to secrete or destroy the list of voters or other important papers in a township in which the majority may determine the result in the county. Buies applicable to contested elections, like other legal rules, must be uniform, and the results and consequences of decisions therefore determine their correctness.</p> <p>“ But few cases of contested elections have received a construction in our Supreme Court. In Melvin’s Case, 18 P. F. Smith 383, Thompson, C. J., referring to the powers and duties of the court to strike out the vote of an election district, says: “ This ought not to be done when a legal election as to time and flace is held, although fraudulent votes have been received. The remedy in such case is to purge the polls by striking out the fraudulent votes if possible. In 1 Brewst. 176, it appeared from the evidence, that in one case the minority inspector was overawed, and the list of assessed voters taken from him, and the requirements of .the law in receiving the ballots were to a great extent disregarded. There was nothing to show that the voters not on the list were qualified according to law, and a large number of such votes Avere received. Still the entire poll was not rejected, and each contestant was allowed to prove his legal vote, to be counted for and credited to him, in the final computation.</p> <p>“ The irregularity in the election district of Pine Grove is not deemed material in our conclusions, as its correction would not change the result.</p> <p>“ The rule to show cause why the petition should not be quashed is made absolute.”</p> <p>The petitioners sued out this Avrit of certiorari, and assigned for error the quashing of their petition.</p>

<p>Appeal from the decree of the Court of Common Pleas of Lancaster county, in equity: Of May Term 1876, No. 90.</p> <p>This was a bill in equity filed by Joel L. Lightner, assignee of the estate of Frank J. Herr, bankrupt, against the First National Bank of Strasburg, and Joseph McClure, president, and Rudolph F. Rauch, cashier.</p> <p>The bill set forth substantially, that on the 9th of June 1875, Frank J. Herr was adjudged a bankrupt, and on the 12th of August following, Joel L. Lightnerwas duly appointed assignee of his estate; that the said Herr at the time of the assignment was the owner of sixty-three shares of the capital stock of the First National Bank of Strasburg, and as such owner had drawn the dividends thereon to the time of the commencement of the proceedings in bankruptcy; that by these proceedings the title to this stock was vested in the assignee; that said bank claimed to hold said stock by virtue of an alleged transfer as collateral security for an indebtedness of said bankrupt to the bank, and in pursuance of said claim, the directors of said bank had directed the stock to be sold; that it is denied that said bank is entitled to said stock or that it has ever been transferred to the bank, or that it had any interest therein, and that it is the duty of said assignee to sell said stock for the benefit of the estate of the bankrupt, and he therefore prays the court to grant an injunction to restrain the bank from selling and transferring the stock and for an order to permit the assignee to transfer the same.</p> <p>The answer of defendants admitted the proceedings in bankruptcy and their regularity; that Frank J. Herr had been the owner of the stock and drawn the dividends thereon, but claimed that the bank had been the beneficial owner of said stock as security for the indebtedness of said Herr by virtue of an irrevocable power of attorney executed by said Herr to E. M. Eberman, cashier, in trust for said bank, and that this indebtedness, which far exceeded the value of the stock, was then due and unpaid. The answer also admitted that the board of directors of the bank had by resolution directed a sale of the stock.</p> <p>The power of attorney was as follows:—</p> <p>“ Know all men by these presents, that I, the undersigned, for value received, do hereby irrevocably constitute and appoint E. M. Eberman to be my true and lawful attorney, for me and in my name and behalf, to sell, assign and transfer unto the First National Bank of Strasburg, or any other person or persons, sixty-three shares of the capital stock of the First National Bank of Strasburg.</p> <p>And further, one or more persons under him to substitute with like power.</p> <p>In witness whereof, I have hereunto set my hand and seal, this first day of October 1873.</p> <p>Witnesses present: Frank J. Herr, [seal.]</p> <p>H. A. Mowery,</p> <p>G-eo. W. Hensel, Jr.”</p> <p>Before an examiner appointed to take testimony, it was admitted that the power of attorney was delivered to the bank, and had been in its custody ever since; that no transfer of the' stock had been made on the books of the company, and that it still remained in the name of Frank J. Herr; also that E. M. Eberman, the attorney named in the power, died early in December 1874-.</p> <p>There was also evidence that Herr was indebted to the. bank in an amount larger than the value of the stock, which indebtedness was incurred before the making of the power, and still remained unpaid. Further, that the bank had no claim on this stock, except by virtue of this power of attorney.</p> <p>The case was heard on bill, answer and depositions, in the court below, and after argument the court, without delivering an opinion, refused the injunction and dismissed the bill.</p> <p>The plaintiff appealed, and assigned this decree of the court for error.</p> <p>When the cause came on for hearing in the Supreme Court, in May, this court appointed Robert M. Agnew, Esq., master, to take further testimony and report; and his report, filed before the expiration of the May Term, was in effect as follows:—</p> <p>“ That, on the 1st of October 1873, Frank J. Herr was indebted to the First National Bank in a sum exceeding $10,000, still due and unpaid; that at that time he was a director of said bank; that his indebtedness was discussed at a meeting of the directors, and at their suggestion, to secure the bank, the power of attorney was executed by Herr to E. M. Eberman; that the special purpose or use intended by this power of attorney does not appear in its form, certainly is not definitely disclosed, but in the light of the testimony adduced, it is clear in the opinion of the master that it was given by Herr to Eberman in trust for the bank, to be executed by him in trust for its benefit as collateral security for the payment of Herr’s indebtedness to the bank, Herr himself testifying that he ‘ had no dealings with Eberman in any other relation than as cashier of the bank.’ ”</p> <p>The master further reported “that the power was never executed by Eberman, who died early in December 1874, and who deposited this power, with other valuable papers, in the vault of the bank, and neglected to execute the power, and that no transfer of the stock was made on the books of the bank, where it still remained in the name of Frank J. Herr.”</p> <p>No exceptions were taken to this report of the master by either party to the action.</p>

<p>1. Where the jury-wheel was deposited in a vault in the county commissioners’ office, in a looked chest, in the custody of the county commissioners’ clerk, who was also the clerk of the jury commissioners, and the key was kept in a desk in the sheriffs office, to which his son, who was his deputy, had access and which was not always kept locked: Held, that this was a sufficient custody of the wheel in compliance with sect. 2 of the Act of 10th April 1867, and that the custody of the key was sufficient, although the evidence showed an improper want of care.</p> <p>2. In the absence of positive evidence that one of the jury commissioners did not seal the wheel as required by law, the presumption is that he performed his legal duty.</p> <p>3. It is no ground of challenging an array of jurors that the number of persons drawn was the minimum number, forty-eight, required by law, of whom only forty-five were summoned, two of the persons drawn being returned “ not found” and a third returned as “dead,” where the sheriff did not know at the time of drawing of the death or removal of those not summoned.</p> <p>4. It is not a right of a defendant to have forty-eight jurors in actual attendance, in the Oyer and Terminer.</p> <p>5. It is not a ground of challenge that the sheriff and jury commissioners did not destroy the slips containing the names of the jurors absent or dead, and draw others in their stead, where such absence or death was not known to them at the time of drawing.</p> <p>6. The names of jurors exempted from service at a previous term were not returned to the wheel by the sheriff and jury commissioners at the time the jury in question was drawn, as required by sect. 135 of Act of 14th April 1834. Held, not to be a ground of challenge.</p> <p>7. It is the duty of every officer to whom a writ is directed to make a return thereof; but a failure to do so, though irregular, is amendable even after a writ of error taken.</p> <p>8. It is no ground for quashing an indictment for burglary, that two of the grand jurors were stockholders of the bank upon whose premises the burglary was alleged to have been committed.</p> <p>9. A witness, who had given evidence tending to identify one of the defendants, was offered to prove that this defendant left a satchel at the witness’ shop for repairs, to be followed by evidence of the subsequent finding of this satchel filled with burglars’ tools. The counsel for the defendants at this stage claimed the right to cross-examine the witness as to his opportunities for knowing the defendant, which the court refused: Held, not to be error.</p> <p>10. Obtaining an entry into a dwelling-house by fraud or artifice, with intent to commit a felony, is “ constructive breaking.”</p> <p>11. The defendants, intending to gain an entry into a bank building to rob the bank, called in the evening at the cashier’s house, which was in the rear of the bank, and asked for the cashier, saying that they wished to transact some private business with him. The cashier was not then at home, and they went away. They called again twenty minutes later, and were then shown into the cashier’s office, without saying anything as to the pretended object of their visit. After a short interview with the cashier they assaulted him, and endeavored to carry off certain property of the bank. It seems that it should have been left to the jury to say whether the first call was made for the purpose of gaining an entrance by fraud with intent to commit a felony, and whether the second call was a part of the same transaction, in pursuance ; of such design, and from these facts, if s<Tioim3,Tb find a constructive break'ing,</p> <p>12. There is no such thing in Pennsylvania as burglary without abreakmg, either actual or constructive.</p> <p>13. Where the defendant entered a dwelling at night without breaking, but with felonious intent, the more unlatching or breaking of a door in an attemjrtj&-esgape does not make the offence burglary.</p> <p>it Sect. 135 of the Act'd 31st March 1860 defines the common-law offence of burglary, and the words “break or enter” should be read “break and enter.” In sect. 2 of the Act of 22d April 1863, the words “ with or” were not intended to apply to dwelling-houses.</p>

<p>1. Where under rules of court the plaintiff was notified by defendants that he was required to file, within twenty days, a statement of the demand he".' intended to make on the trial, and he failed to comply, and twelve years after-wards having obtained leave to amend his declaration, he filed special counts and offered evidence of his demand, the court rejected the evidence on the ground that plaintiff could not supply the want of notice of what he intended to prove on the trial by special counts twelve years after the special matter was demanded, and directed the jury to find for defendants. Held, not to be error.</p> <p>2. A delay of twelve years, in applying for leave to amend a declaration, is out of all reason and fatal to the success of the efforts of the plaintiff to cure a defect arising from his original neglect.</p>

<p>Error to the Court of Common Pleas, N°- 2, of Allegheny county. No. 235, October and November Term 1875.</p> <p>This was an action of assumpsit, brought by Pierce Sinnott against John Mullin, the plaintiff in his affidavit of claim, alleging that the defendant was indebted to him in the sum of $1953.75 and interest from August 1st 1872, the balance due for work done and materials furnished in and about the construction of certain buildings, tearing down houses, hauling away rubbish, excavation, &c., as charged in a statement annexed.</p> <p>In his affidavit of defence, the defendant averred that the only dealings which he had with plaintiff were under a certain agreement in writing, under seal, dated April 17th 1872, wherein Sinnott, a carpenter and builder, contracted to erect and complete, with good materials, four houses, on a lot of Mullin, for which the latter was to pay Sinnott the sum of $3500: $700 when the stone work was done, $1100 when the buildings were under roof, $600 when the buildings were ready for plastering, and $1100 when they were completed. The $700 to be paid when the stone work was finished, defendant alleged he had paid, and then further averred that the plaintiff covenanted to have the buildings finished by August 1872, but that in the latter part of July he did not have them under roof, and that he has not since completed them, and still refuses to complete them in pursuance of the stipulations of the agreement.</p> <p>By the permission of the court, the plaintiff filed an amended narr., which set forth the agreement under seal, as disclosed above in the defendant’s affidavit, and continued:—</p> <p>“ And the said plaintiff further avers that, on the premises aforesaid, belonging to said defendant, and immediately adjoining or near to the same, to wit, within five feet of the place where said dwellings were to be placed and erected under the contract aforesaid, there was a stone wall, previously constructed by said defendant, which said wall was about forty feet long, twenty-four feet high and about two to four feet thick. And said plaintiff further avers that he entered upon the premises aforesaid and commenced the construction of said dwelling-houses under the contract aforesaid, and had the said contract in part performed, to wit, the brick work was up to the third story, ready for the roof on two of them, and the roof partly on the other two, but was prevented from proceeding further with the construction of said buildings by reason of the said wall falling down and over and on to said tenements, whereby the same were crushed, broken down and .destroyed. And the said plaintiff avers that the falling of said wall was not caused by the fault or neglect of him the said plaintiff, but the same was caused by the defects in said wall by reason of its having been originally defectively constructed, and by the carelessness and negligence of the said defendant in not properly erecting and constructing said wall with proper materials, and in not properly maintaining, repairing and supporting said wall; and that, by reason of the premises, he is entitled to recover, have and receive of and from said defendant the sum of $1953.35, being the amount paid, laid out and expended by him for work, labor and materials, in the construction of said buildings, up to the time they were so destroyed.as aforesaid, to wit, at the county aforesaid.</p> <p>“And the said plaintiff also complains of said defendant, and avers that afterwards, to wit, in December 1872, to wit, at the county aforesaid, the said defendant did receive and take, and apply to his own use, the lumber, joists, brick and materials left and there lying, after the destruction of the buildings aforesaid, as mentioned in the preceding count in this declaration, amounting in value to the sum of $1000; by reason whereof said defendant became and is liable to plaintiff for the value of the same, to wit, at the county aforesaid.”</p> <p>The plaintiff claimed to recover under the first count of this supplemental narr. on one of two grounds: 1st, that there was an implied covenant or agreement on the part of defendant that the location was a good and safe place for the erection of the buildings; or 2d, that the wall having fallen through a defect in its original construction, the plaintiff was excused from completing his contract, and the defendant became liable to pay for the work and materials.</p> <p>The court below (White, A. J.) refused to allow the jury to pass upon the question of negligence, and instructed them, “that the only question for them was under the second count of the supplemental narr.,” which action of the court constituted the fifth assignment of error.</p> <p>The plaintiff submitted the following four points, with which are given the answers of the court, which answers constituted the first four assignments of error.</p> <p>1. That under the contract between the parties in evidence, the defendant, Mullin, was bound to provide the plaintiff with a reasonably safe and secure place, on which to erect said houses, and said contract is to be taken and construed as a covenant and undertaking on the part of Mullin, the defendant, that said premises were safe and secure from danger or injury from adjoining buildings, wall or erections, around, by and upon the other parts of the premises of said defendant.</p> <p>Answer: “ Under some circumstances this might be true, but I do not think it is the law in this case. It is in evidence that the plaintiff, before he entered into the contract, saw the premises and examined them, and that neither he nor the defendant considered 'the wall unsafe. It had stood there for over twenty years, appeared all right and did not look unsafe or dangerous. The plaintiff had as good opportunities of judging of the safety of the location as the defendant, and being an experienced contractor, was, perhaps, better qualified to judge. With his eyes open, and with full knowledge of the situation he entered into the contract. Under the circumstances of this case, therefore, I do not think there was any such implied covenant or agreement on the part of defendant, and I refuse this point.”</p> <p>'2. That if the jury are satisfied from the evidence that the wall mentioned fell by reason of insufficiency in the construction of said wall, and that the same was not contributed to in any way by the acts of said plaintiff or his employees, that then the loss and damages caused thereby must fall upon and be borne by Mullin, the owner of the premises, and not by Sinnott, the contractor.</p> <p>Answer: “ This point asks me to say, that in law the defendant would be liable for damage occasioned by the fall of the wall in consequence of any insufficiency in its original construction, without regard to the time when, or the purposes for which it was built, how long it had stood, or whether the defendant had any knowledge of any imperfection in it or insufficiency in its construction. It is also based on the idea, that the wall fell from some inherent defect or insufficiency in the wall. The evidence is not sufficient to sustain that position. It is manifest it fell from a heavy slide from the hill above the wall, caused by the heavy rains of the few days previous. In all probability the hill would have slid down if there had been no wall, or even if the wall had stood, the slide would have gone over it, and done the same damage. This point is therefore refused.”</p> <p>3. That if the jury are satisfied from the evidence that the wall fell by reason of the water running from the hill, falling and settling behind the wall, and that such flow and settling of the water could have been prevented and guarded against by reasonable care, skill and expense, and that the defendant neglected to so provide for the safety of said wall, that then any loss resulting from the falling of the same must be borne by the owner, the defendant.”</p> <p>Answer: “ This point is also based on a supposition of facts not sustained by the testimony, and would make the defendant liable, whether he had any knowledge of the assumed facts or not. The wall had been erected by a prior owner, had stood for twenty or twenty-five years, looked well at the time, and neither the plaintiff nor defendant anticipated any danger from it. There is no evidence that the defendant kneAV or had good reason to believe, there was any defect or imperfection in the wall or any injury from water behind it, or any danger to be apprehended from it. This point is therefore refused.”</p> <p>4. That if the jury are satisfied from the evidence, that the wall mentioned, across the rear of the lot, at the base of the hill, was put there by the original owner of the property, and was kept there and maintained by the defendant, after he purchased, for the purpose of protecting the part of the lot below and between the wall and Second avenue, from injury, by reason of the earth, slate and stone from the side of said hill falling or sliding down upon the .samé, that then the responsibility and duty was upon the defendant, to know and see that said wall was reasonably sufficient for the purpose, and if the jury are satisfied from the evidence that said wall was not sufficient for the purpose intended, and fell down and injured the houses then being erected by the plaintiff for the defendant, that the loss occasioned thereby will fall on the defendant, and not on the plaintiff, unless the plaintiff, or his employees, were guilty of contributory negligence.</p> <p>Answer: “ This point, like the others, is based upon the jury finding certain facts of which there is no sufficient evidence. There is no evidence as to who built the wall, and no direct evidence for what purpose it was built. The evidence would indicate that it was built for a protection from loose earth and stones falling down, and not as a support to the hill. The hill was mainly rock and needed no support. The evidence, as already stated, would not justify the •jury in finding that the wall fell from any inherent defect or any insufficiency for the purpose intended, but from a heavy slide of the hill above the wall. The wall had stood about twenty or twenty-five years. There is no evidence that the defendant did not know or believe that it was sufficient for the purpose for which it was intended and retained.</p> <p>“ If the defendant had knowledge that it was defective or insufficient or had good reason to apprehend any danger, he would doubtless have been bound to repair it and make it safe. His neglect to do so might be negligence on his part. It is only on the footing of negligence that the defendant could be held liable. And, considering the length of time the wall had stood and its apparent condition at the time of the accident, and the absence of all evidence that the defendant knew of any defect, or had any reason to apprehend danger, I cannot see what negligence he has been guilty of, or that the jury would be justified in finding a verdict against him on this point as it stands. It is therefore refused.”</p> <p>The sixth assignment was the refusal of the court to permit W. Gr. Smith, an engineer, to testify for what purpose, in his opinion, the wall was put across the back end of the lot, and why it should be thirty feet high if not to support the hill and keep it from coming down on the lot.</p> <p>The seventh assignment was in not permitting the same witness to reply to the following question : “In building a wall there, a stone wall, such as has been described here, state what number of headers should be in it, á stone wall on the side of that hill for a retaining wall ?”</p> <p>The eighth assignment refusing to permit same witness to answer this question: “ After an old wall has been thrown down, among the debris, could you distinguish the headers and stretchers from other stones there ?”</p> <p>With the above proceedings, what is contained in the opinion of this court will make the case clear.</p> <p>The verdict was for the defendant, and the plaintiff took this writ, the assignments of error being those heretofore noted.</p>

<p>Error to the Court of Common Pleas, No. 1, Allegheny county: No. 192, of October and November Term 1876.</p> <p>This was an application by the Commonwealth, ex rel. N. Snyder, Frank Havelock, Michael Ryan and John A. Jacobs, partners, doing businéss under the firm name of N. Snyder & Co., for a writ of mandamus to compel the water committee of the councils of the city of Pittsburgh and the councils of said city to award to said N. Snyder & Co., the contract for manufacturing, delivering and completing the “ wrought-iron forcing mains” for the water-works of the city, the relators alleging that they had made the lowest bid for the contract and that it had improperly and illegally been awarded to higher bidders.</p> <p>In their petition the relators represented in substance : That they were citizens and property owners of the city of Pittsburgh; that the water committee of councils having in charge the construction of water-works, in pursuance of the provisions of the 6th sect, of the Act of 23d of May 1874, Pamph. L. 230, invited sealed proposals for “ wrought-iron forcing mains” conformably to certain specifications and plans; that the relators being expert and responsible “ iron workers,” competent and able tó execute the contract, made proposals in good faith and in conformity with all requirements, for these “ wrought-iron forcing mains,” which proposals' were $5000 lower than any other bid made, and that their bid was accompanied with a good and sufficient bond with two responsible persons as security ; that it was the duty of said water committee and of councils to award to the petitioners the contract, they being the lowest responsible bidders, but that they have unjustly and illegally declared their intention of awarding the same to other and higher bidders, to wit, the firm of Jared M. Brush & Co., who are no more responsible than petitioners; and having no adequate or specific legal remedy except the writ of mandamus, the petitioners therefore pray that a writ of mandamus may issue commanding the water committee and councils not to award the contract to any individuals or firm whose bid is higher than that of petitioners, and to award the contract to the lowest responsible bidders, the petitioners, who are such conformably to the plans and under the regulations prescribed for the execution of the contract, or that a rule upon the water committee and councils may be granted, requiring them to show cause why a writ of mandamus should not be issued for the purposes aforesaid, &c.</p> <p>The court granted the rule to show cause, and the mayor of the city of Pittsburgh, the chairman of the water committee, Thomas S. Mitchell, and the presidents of select and common councils, filed an answer, in which they admitted the facts set forth by petitioners, but denied the responsibility and competency of the firm of Snyder & Co.; the 4th and 5th paragraphs of the answer being as follows:— ■</p> <p>“ 4. It is denied that the water committee were bound to award the contract to the petitioners, for the reason that they were not' the lowest responsible bidders; and it is denied that they are responsible bidders, for the following reasons, viz.:—</p> <p>“ That it was within the knowledge and the full belief of said committee, that N. Snyder & Co., by some means or other, attempted and did perpetrate a gross deceit and wrong upon.said committee, in surreptitiously departing from the specifications for a certain contract for the construction of boilers for the new waterworks, by striking therefrom, without the knowledge or consent of said committee, the words ‘mud drums,’ whereby said committee have suffered considerable ’vexation and annoyance, and whereby the said city will, in all probability, be compelled to litigate with the said N. Snyder & Co., resulting in considerable loss to the city; that it was within the knowledge of some, if not all of the members of the water committee, that N. Snyder, the senior member of said firm of N. Snyder & Co., was a man of intemperate habits, whose character for sobriety was not .such as would warrant the committee in giving said firm such a responsible contract; that said N. Snyder also had attempted to bribe the mechanical engineer of the water-Avorks, Avho was, by virtue of his office, the inspecting officer of said contract; and that N. Snyder & Co. were otherwise disqualified for the proper fulfilment of the requirements of the proposed contract.</p> <p>“ 5. That it is true that the water committee did refuse, and still do refuse, to aAvard the said contract to N. Snyder & Co.; and it is averred that the said committee, acting under the discretion given to them as well by said ordinance as by the provisions of the 6th section of an Act of Assembly regulating the powers and classifying the several cities of the CommonAvéalth, approved May 23d 1874, and which was reserved, under said regulations to reject any and all bids, after due deliberation and careful consideration of the said several proposals, as well the bonds of the said parties as of all other requirements which go to make a skilful, reliable, trustworthy and responsible contractor, rejected the bid of said N. Snyder & ■ Co., and awarded the contract to J. M. Brush & Co., as being, in the judgment of the committee, the loAvest, best and most responsible bidders; that it is true that the select and common councils of said city did approve the said contract entered into by the water committee .thereof, with J. M. Brush & Co., as they were and are still advised and believe, that they acted and are still acting strictly in accordance Avith the law in such case made and provided. It is denied that any wrong or injury Avhatever has been done to the said N. Snyder & Co. by the said defendants.”</p> <p>The relators joined issue on the facts alleged in this answer, and the court appointed a commissioner to take testimony. His report having been filed, by agreement of counsel the cause was submitted to the court beloAV, under the 27th section, 5th article of the Constitution and the Act of Assembly of April 22d 1874, passed in accordance thereAvith, entitled “An Act to provide for the submission of civil causes to the decision of the court, and to dispense with trial by jury,” with right to writ of error, &c.</p> <p>The court (StoAve A. L. J.), in an opinion filed, found that the facts set forth in the petition were true, and continued: “But recurring to the second question, Avhich was the great ground of controversy under the evidence, and upon argument, we find it is not denied, and very clearly proven, that plaintiffs were the lowest bidders ; and Ave are of opinion that, in a mere pecuniary sense, they were ‘ responsibleand we are further of opinion that the evidence does not sustain the allegation that e it was Avithin the knowledge of the defendants that N. Snyder & Co., by some means or other, attempted and did perpetrate a gross deceit and wrong upon said committee, in surreptitiously departing from the specification for a certain contract for the construction of boilers,’ &c., or that ‘N. Snyder was a man of intemperate habits, whose character for sobriety was not such as would warrant the committee in giving said firm such a responsible contract,’ or that ‘N. Snyder had attempted to bribe tlie mechanical engineer of the water-works,’ &c., as alleged in the fourth paragraph of defendants’ answer; but we are of opinion, as alleged by defendants, that said committee and councils were of the full belief that such facts were true. Then the question arises whether the city -had a right to look beyond the mere pecuniary responsibility of a bidder in the case in hand, and if so, what effect a mistake, honestly made, will have upon the question before us.</p> <p>“ Without entering into an argumént.to support our position, we think that the word responsible in the Act of Assembly, in regard to contracts, such as require skill, integrity and care, as well as a pecuniary ability to indemnify the city against all failures of performance, and to compensate for damages of nonfeasance and misfeasance of the contractor and his employees, has a much broader meaning than such as is directly involved in pecuniary ability to make good a contract by security for its faithful performance. In cases where a mere pecuniary liability is involved, as in becoming security for the payment of a debt, or even bail for the performance of a contract, the construction would be different, because all that is involved in that case is the pecuniary responsibility of the security; but where more is required of the party asking the contract, common reason requires a broader interpretation, and we therefore think the city had a right. to look beyond the mere pecuniary responsibility of plaintiffs and the sufficiency of their bail. But we have found under the evidence in the cause, that the plaintiffs were responsible in all points in which the city had a right to inquire, and now the question arises (assuming for the present that it was the duty of the water committee to give the contract to the lowest responsible bidder), can this court by mandamus compel the defendants to give it to plaintiffs ? In determining that, the word responsible involves in cases like the present an inquiry into matters other than such as are mere matters of pecuniary calculation, and that it properly includes the examination into moral qualities, which necessarily go to make up the character of a man, who is a proper person to have such a contract in view of an honest and expeditious performance of his agreement, the case is brought directly within the line of the well-settled law, which determines that wherever the act required to be done involves investigation, and the exercise of discretion and judgment, it cannot be reached by mandamus, at least in the absence of clear proof of fraud and bad faith. In this view of the case, we think the water committee ought to have given the contract (if to any of the bidders) to the plaintiffs, but we see no evidence of fraud on their part, and are therefore compelled to refuse the mandamus as prayed for.”</p> <p>The court thereupon ordered judgment to be entered for the defendants.</p> <p>The relators excepted to the conclusions of law contained in this decision of the court, which exceptions the court overruled, and this action was assigned as error.</p>

<p>Appeal from the Court of Common Pleas, No. 2, of Allegheny county: No. 234 of October and November Term 1875, in Equity.</p> <p>This was an appeal from the decree of the court dismissing a bill in equity, filed by George Findley, a tax-payer, against the authorities of the city of Pittsburgh, to restrain them from awarding a contract for certain “wrought-iron rising mains,” to be usedin connection with the city water-works, to J. M. Brush & Co., whose bid, it was alleged, was $5000 higher than that contained in another proposal for the same work.</p> <p>The facts and questions involved are substantially the same as those in the preceding case of Commonwealth v. Mitchell.</p> <p>Complainant’s bill set forth, that proposals were advertised, and bids received for the construction of the rising mains; that N. Snyder & Co. were the lowest bidders, and were responsible bidders, but that the city councils have arbitrarily rejected this bid, and awarded the contract to Brush & Co.</p> <p>It appeared that the bid of Snyder & Co. amounted to about $125,000, that of Brush & Co. to about $130,000, and the other bids were $140,000, $167,000 and $172,000.</p> <p>It was not alleged in the bill that there was any actual intention of fraud on the part of the city councils, nor was there any charge of collusion on the part of Brush & Co. with any city official.</p> <p>The answer of Brush & Co. asserted good faith and readiness to perform the contract on their part.</p> <p>The answer of the city showed that the superintendence of the erection of the water-works was placed by ordinance in the water committee; admitted that Snyder & Co. were the lowest bidders, but denied that they were responsible bidders, and then set forth the same facts and made the same averments as those contained in the answer in Commonwealth v. Mitchell.</p> <p>The case was referred to a master, whose findings were in substance those of the court in Commonwealth v. Mitchell. To this report plaintiff filed a number of exceptions.. In their opinion, reviewing the exceptions to this report, the court, Ewing, P. J., inter alia, said:—</p> <p>“We understand the master to find substantially that the allegations contained in the answer are true, except that he finds that the specifications for the boiler contract were not ‘ surreptitiously’ and with fraudulent intent, altered by N. Snyder & Co.</p> <p>“We have read the entire testimony with care, and while we are not disposed to set aside the positive findings of the master, we find:—</p> <p>“ That, by the express directions of the water commission, approved by their successors, the water committee, ‘mud drums’ were made a part of the specifications for proposals for boilers; that no authority was ever given by either the commission or committee to erase these words; that, either before or after the proposals were received, the words ‘mud drums’ were erased from the specifications on which the bid and contract of N. Snyder & Co. were made. That the committee entered into the contract with N. Snyder & Co. without any notice or knowledge that these words had been erased, and that the committee, at the time they rejected the bid of N. Snyder & Co. for ‘ rising mains,’ believed, and had good cause from investigation to believe, that this erasure had been made fraudulently by N. Snyder & Co., or by collusion with some clerk in the employ of the city.</p> <p>“As to the allegation that Snyder & Co. had attempted to bribe the inspecting officer of the water committee, we are unable to see how any but one conclusion can be drawn from the testimony.</p> <p>“ Mr. Lowry says he was approached by the senior member of the firm pending the bid, and also after the contract was awarded for the boilers, and on the latter occasion, on shaking hands, money was left in his hand, which he immediately refused and returned. When afterwards charged by Lowry, in presence of a member of the committee, with having attempted to improperly influence him, Snyder is silent. But if there were no testimony but that of Mr. Snyder himself, who is called by the plaintiff in rebuttal, it would be conclusive. He admits -the offer of money substantially as stated by Mr. Lowry. There is no pretence that there was any other relation or business between them than that Lowry, as officer of the committee, was inspector of the work. There was nothing for which money could honestly pass between them. • Snyder says that he did not intend to bribe Lowry, and that is all the explanation.</p> <p>“ There are some transactions that neither require nor are capable of explanation. The offer of money by Snyder to Lowry was one of these. Of the same general character, but much more skilfully offered, was the proposal by Snyder to fee and retain Mr. Milligan, a member of the water committee, as additional counsel. The offer, deceived no one. The attempt to bribe, as charged in the answer, is clearly made out. ’</p> <p>“With these modifications, the exceptions to the report of the master are dismissedand the court then refused the injunction and dismissed the bill.</p> <p>The plaintiff appealed, and assigned this action of the court for error.</p>

2, of Allegheny county: Of October and November Term 1876, No. 3. This was an action of assumpsit brought by James Littell against Jacob Moeck, Sr., one of the endorsers on a promissory note, dated January 4th 1875, for $700 made by Jacob Moeck, Jr., to the order of John Rowley, payable at six months, and endorsed by John Rowley, Conrad Moeck, Jacob Moeck and James Littell, and which was protested for non-payment July 7th 1875.

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1876, No. 145.</p> <p>This was case, brought by Eccles Robinson against the Federal Insurance Company, to recover usurious interest alleged to have been retained by the defendant company out of a loan made to plaintiff.</p> <p>The facts appeared to be these: On July 28th 1873, Robinson gave his judgment bond to S. C. Schoyer to secure the payment of $4500, furnished by the Federal Insurance Company, of which sum plaintiff was to have the use for two years, at the rate of ten per cent, per annum. When the loan was made $360 was withheld, being the difference between.six and ten per cent, on $4500, and it was for this difference this suit was brought.</p> <p>Judgment was entered on the bond given to Schoyer, and that judgment assigned to the defendant company, who, upon the failure of Robinson to pay the interest, issued execution thereon, and upon a return of nulla bona, an execution attachment issued, attaching moneys in the hands of James P. Speer and others, garnishees, on which the court granted judgment against the garnishees. Robinson, it appeared, had no notice of this proceeding. Speer took an assignment of the execution attachment and original judgment, and gave to the company the amount of the same.</p> <p>Eccles Robinson was a distributee of the estate of William Robinson, Jr., deceased, but, prior to the distribution, assigned his interest therein to one Gray. In the distribution of the estate of Robinson, Jr., Speer was allowed the amount of the judgments he had purchased of the Federal Insurance Company out of the share distributed to the assignee of Robinson, and then satisfied the judgments against the latter.</p> <p>This action was brought in April 1875, to recover the $360 above mentioned, usurious interest retained by the Federal Insurance Company on July 28th 1873, the plaintiff alleging that he paid the amount loaned when the assignment was made to Speer.</p> <p>On the trial the defendant submitted, among others, the following point:—</p> <p>That the usurious interest must have been paid voluntarily to entitle plaintiff to recover.</p> <p>The answer of the court was:—</p> <p>“As this point, under the evidence, is intended to mean that because the judgment given by plaintiff was paid by compulsion or process of law, plaintiff cannot recover, we are compelled to refuse it. The fact that a party has entered into a usurious contract with another, does not pay it voluntarily, but is compelled to do so by legal process, will not prevent his recovering back the usurious interest if suit is brought within the time limited by law.”</p> <p>The verdict was for the plaintiff for $370.80, and judgment was afterwards entered thereon.</p> <p>Defendant took this writ, and among other errors assigned, was the refusal to answer the foregoing point.</p>

<p>The frontage rule of valuation, whereby the cost of the paving of streets or other municipal improvements is assessed upon the property holders abutting upon the street, in proportion to the number of feet their property fronts thereon, while it may be a just mode of assessing the cost upon compact city lots, where the properties do not materially differ in value, cannot be applied where the street or improvement is made through rural or suburban districts, and the Act of April 2d 1870, in so far as it applies this mode of assessment to such districts is unconstitutional.</p>

<p>1. A., the agent of a company, contracted with B. to supply the company with lumber, one half to be paid by the company in cash within the first fifteen days of each month, for the lumber delivered the preceding month, and the other half to be paid in the stock of the company at par value. The company neither made the cash payments nor tendered the stock, and B. brought an action to recover the whole amount of the claim in money. Held, that the agreement to take pay in stock for one half was absolute and not contingent upon the prompt payment of the cash portion, and where there had been no refusal to deliver the stock, the mere failure to pay the cash at the times appointed did not enable B. to rescind the contract and demand payment of the whole in money.</p> <p>2. B., having paid for it in lumber, became the owner of the stock and entitled to demand a certificate therefor, and in the absence of such demand or refusal by the company to issue the certificate, the company was not in default by a failure to tender the stock.</p> <p>3. Brown v. Foster, 1 P. F. Smith 165, distinguished.</p>

<p>1. A preliminary injunction is never awarded except in a clear case of right and where no doubt exists as to the claim of the plaintiff to the remedy he invokes, and where therefore the proof of the right is so equally balanced as to leave it in doubt, the injunction should be refused until the rights of the parties are ascertained.</p> <p>2. A court of equity may interfere in a case of trespass to prevent irreparable mischief and. multiplicity of suits, but if the trespass be fugitive and temporary, and adequate compensation can be had in an action at law there is no ground to justify its interposition, and no decree should be made to be followed by injunction unless irreparable injury be clearly established.</p>

<p>1. The right of a husband to procure a conveyance of land to be made to his wife and to settle the land upon her is not affected by the fact that he borrowed a portion of the purchase-money at the time of the execution of the deed, if at that time he had no other debts, was not about to enter into any hazardous business, and his acts indicated no intention to defraud creditors.</p> <p>2. Plaintiff, who loaned the portion of the purchase-money, having obtained a judgment against the husband on a judgment-note for a balance due, together with a new loan, sold the land, and brought ejectment to obtain possession, against whose claim defendants set up the wife’s title. On the trial it appeared that plaintiff had advised the purchase, was present when the deed was executed and subscribed as a witness thereto, and the defendants asked the court to instruct the jury that if they should believe from the evidence, that the plaintiff knew of the conveyance to the wife and lent his money to the husband, then he accepted the husband individually as his debtor without reference to the property; that upon such facts he would be estopped, and that his signature to the deed was some evidence of knowledge on his part; all of which the court refused, and instructed the jury to find for plaintiff. Held, that these points should have been affirmed, and the fact of knowledge being denied by plaintiff the question should have been submitted to the jury.</p> <p>3. The acceptance of a new bond, which included the balance of the purchase-money due, together with a new loan, did not create a new indebtedness that would estop plaintiff from asserting his claim against the land, if during all this time he was in ignorance of the conveyance to the wife.</p>

<p>1. The United States has the right to take private property for public use under the power of eminent domain.</p> <p>2. The Act of Congress of 3d March 1873 provided that the secretary of the treasury should purchase at private sale, or, if necessary, by condemnation in pursuance of the statutes of Pennsylvania, a suitable piece of ground in Pittsburgh for the erection of a court house, &e.; the United States condemned three separate sites, and began proceedings to condemn a fourth, with a view of selecting one of the four: Held, that the proceedings for condemning the fourth site were not authorized by the act.</p> <p>3. An Act of Assembly passed for the purpose of carrying out this Act of Congress, provided that the United States might pay the costs and refuse to take the land, if in their judgment the compensation assessed was excessive: Held, that this could not be construed to justify proceedings to condemn an indefinite number of sites at once; and even if it did so, it was unconstitutional.</p> <p>4. A petition filed by the United States in pursuance of the above Act of Congress for condemnation of a site under the Act of Assembly of 19th February 1849, did not contain an averment that the United States had attempted first to agree upon a valuation with the property owners: Held, that the court below had no jurisdiction to appoint viewers.</p> <p>5. It appearing that the United States had not actually selected a site for its buildings, but was endeavoring to condemn four sites for the purpose of experimenting upon the different values: Held, that the proceedings to condemn a fourth site were irregular.</p>

<p>Appeal from a decree of the Orphans’ Court of Allegheny county: Of October and November Term 1875, No. 277.</p> <p>These were proceedings begun in the court below by Mary E. Milligan (formerly Agnew) and her husband, for a review of the account of Dr. James Carothers, her former guardian.</p> <p>The grounds upon which the review was asked were these: (1) Because the guardian, in the partition of certain real estate in which his ward and his wife were equally interested, had elected to take real estate for his wife (which afterwards proved to be very valuable) and had taken his ward’s share of the estate in money; (2) because, though standing in loco parentis to his ward, he had charged her in his account with the amount expended for her support and maintenance ; and (3) because he mingled his ward’s money with his own in the purchase of bank stocks, which increased greatly in value and yielded more than six per cent, interest, and had accounted only for the principal of the minor’s estate with legal interest. The original and supplemental petitions filed were referred to an auditor who reported substantially these facts.</p> <p>The petitioner was the only child of Mary Agnew (formerly Graham); the latter died in 1843, and soon after her death the ' petitioner, then but a few weeks old, was taken to the home of her mother’s younger sister, Mrs. Carothers, wife of Dr. Carothers, and lived there until some time after she had attained her majority and until she was married; she was brought up by and treated by her aunt and her guardian in all respects as their own child. In 1846 James Graham, the grandfather of the petitioner, died intestate, seised of a farm in Allegheny county, in which Mary Agnew and Mrs. Carothers were each entitled to an eighth interest. Proceedings for the partition of this real estate were begun in 1849 (Dr. Carothers having in the meantime been appointed guardian of the petitioner), and the inquest made a return dividing the estate into four purparts, of which the lowest in value was appraised at $3538. Mary Agnew’s interest was valued at $2169. Dr. 'Carothers and his wife elected to take a purpart valued at $4500, and one was accordingly set apart to them, in October 1849, charged with the payment of $2169 owelty of partition to Mary Agnew as her entire share of the estate. Up to this time no money or property of the ward had come into the hands of her guardian. The purpart set apart to Mrs. Carothers turned out to be coal lands, and became very valuable. There was no evidence that the partition was not fairly conducted. The record of the proceedings in partition did not show in express terms that the guardian declined to take for his ward; it did however show notice to the parties interested to appear on a certain day and accept or refuse the real estate at the valuation; that the guardian was present on that day, that all the shares were allotted to other heirs, and that the petitioner’s share was ordered to be paid in money.</p> <p>The petitioner reached her majority in July 1864. The account of her guardian was filed in September 1866; in- it the accountant charged himself, among other things, with $2169 and simple interest thereon, and claimed credit for over $3000, paid for the minor’s support and education during' her entire minority. This account was fully explained to the minor before it was filed, so that she understood clearly that it' charged hpr for her support and education. There was some evidence that her relations to her aunt and guardian made it impolitic for her '[o object to the account as stated, but there was nothing to show that any improper influence was used in any way. The petitioner took a note for the balance due her, and signed a receipt therefor. Payments were made to her on this note at various times as late as 1870. Dr. Carothers died in April 1867. Mary Agnew was married some months later. At the filing of the first petition the purpart allotted to Mrs. Carothers was still in her possession.</p> <p>With regard to the third ground for a review, the evidence showed that Dr. Carothers never kept a bank account, except for a short time before 1860, and that he kept-no separate account of his ward’s money. The owelty charged in the partition was never paid in money, but remained a charge upon Mrs. Carothers’s share until the settlement of the account, and was then included in the note given to the petitioner. From January 1st 1850 to January 1st 1857, the guardian received other money of the minor to the amount of $2746. In May 1856, Dr. Carothers, having then in hand $1750 of the trust money, invested $900 in hank stock in his own name, and in June 1857, having in hand $2746 of the trust funds, he invested $1000 in bank stocks in his own name. It appeared, however, that at this time he was the owner of valuable real estate, and was a physician in active practice, and further, that both he and his wife had money of their own sufficient in amount to make these investments. He did not appear ever to have invested any of the trust funds in his ward’s name. Beyond the above facts there was no evidence given to trace the minor’s money into these investments. The auditor was of opinion that there was no evidence to show that any of the minor’s money had been used in the purchase of the stocks claimed by the petitioners.</p> <p>The first petition for a review was filed in December 1867. It set forth the proceedings in partition; that the petitioner was entitled to choose or refuse a purpart before Mrs. Carothers, being the only child of an older sister; and that the guardian, in electing to take a purpart for his wife, had committed a fraud upon his ward, and prayed a review of the account on this ground. A supplemental petition, filed in 1868, set forth that Dr. Carothers had been legally disqualified to act for his ward in the proceedings in partition, and therefore she had not been in fact represented; further, that Dr. Carothers had elected to take a purpart for his wife, though the first choice was in his ward, without having first refused a purpart for the latter of record, all of which was a fraud upon the ward, and prayed that the petitioner, not having been represented in the partition, should be allowed to come into court and make choice of or refuse the purpart taken by Mrs. Carothers at its valuation. Neither of these petitions prayed to surcharge the accountant on the ground that his choice of a purpart enured to his ward. A third petition, filed the same day, was based upon the charges for support and maintenance of the ward; and a fourth petition, filed April 1871, prayed a transfer of the above-mentioned stocks and an account of the dividends received from them.</p> <p>Upon these facts, the auditor was of opinion that the petitioners were not entitled to a review; the court below confirmed the report, and the petitioners took this appeal.</p>

<p>Error to the Common Pleas, No. 1, of Allegheny county: Of October and November .Term 1876, No. 146.</p> <p>This was a quo warranto against Samuel Kilgore, commanding him to show by what authority he claimed to exercise the office of treasurer of Allegheny county.</p> <p>The defendant’s answer set forth that in October' 1871 he was elected county treasurer for a term of two years, to compute from the first Monday of March 1872 (according to the provisions of a special act relating to the office of the treasurer of Allegheny county, approved March 29th 1867); that in October 1873 he was re-elected for another term of two years, to compute from the first Monday of March 1874; that by virtue of his said election and his commission he was entitled to hold his office until his successor had been duly qualified, and that no such successor had been so qualified, &c.; and therefore that he was entitled to hold his office until the first Monday of January. 1877, and until his successor should be duly qualified..</p> <p>■ The Commonwealth filed a replication, setting forth that at the general election held November 1875 James Gr. Murray was elected county treasurer; that he had given bonds, had taken the oath of office and was duly commissioned by the governor to hold the office for three years from the first Monday of January 1876; and that the defendant’s term of office had expired. It also denied that the defendant was entitled to hold the office till the first Monday of January 1877.</p> <p>To this replication the defendant filed a rejoinder alleging that the election held in November 1875 was unauthorized by law, and therefore illegal and void, and that Murray was ineligible to the office of county treasurer at the time of that election, because he then held the office of county commissioner,</p> <p>To this rejoinder the Commonwealth filed a general demurrer.</p> <p>The court below entered judgment on this demurrer for the defendant, on the ground that Murray was ineligible to the office. No written opinion was filed.</p> <p>The Commonwealth took this writ of error, assigning for error the judgment of the court in overruling the demurrer.</p>

<p>1. One of the conditions of a policy of fire insurance was, “the insurance by this policy shall cease at and from the time that the property hereby insured shall be levied on or taken into possession or custody under any proceeding in law or equity.” A mechanic’s lien was filed against the building insured, judgment obtained thereon, a levari facias issued and was placed in the hands of the sheriff and the property advertised to be sold, when just before the day fixed for the sale the building was destroyed by fire. Held, that this levy did not terminate the risk and that the insurers were liable.</p> <p>2. This condition (as declared by the lower and affirmed by this court) has special if not exclusive reference to personal property, which when levied on is usually seized in fact, and remains until sold in the possession of the sheriff, who cannot be expected to guard it with the same degree of care that the owner would, and it was this actual seizure that necessarily increases the risk which the condition was designed to guard against, and not a technical seizure unattended by change of possession or increased risk.</p> <p>3. The phrase “levied on,” as employed in the policy, does not mean a technical levy, unaccompanied by actual seizure and change of possession, and has no application, ordinarily, to proceedings by levari facias for the sale of real estate.</p>

<p>1. R. was held to hail upon two informations upon charges of assault and battery, and the indictments founded thereon were preferred before the grand jury at June sessions 1875, and ignored, and the county ordered to pay the costs. At the September sessions of the same year, the same informations were sent before another grand jury, and true bills found. At the trial, a motion was made to quash these indictments, which the court refused, and the accused was tried and convicted. Held, that the refusal to quash cannot be reviewed by this court, and that this action of the district attorney and court helow could be brought before this court for review only where the abuse of their discretion should be found to have been both manifest and flagrant.</p> <p>2. The district attorney of the county has the power under the authority given to deputy attorneys general, by the Act of the 3d of May 1850, to prefer an indictment before a grand jury, without a previous commitment of the accused, and also, as in this case, after a return of ignoramus to a previous indictment of the accused for the same offence, without a fresh hearing ; but this power must be exercised under the supervision of the proper court of criminal jurisdiction, and its employment can only be justified by some pressing and adequate necessity.</p> <p>3. "When a defendant has been once discharged on a return of “ignoramus’’ a new bill sent up without a fresh hearing and without the leave of court should be promptly quashed in the absence of affirmative proof that the course taken was required, to meet some grave emergency or provide for some urgent public need, and where, as in this instance, the Quarter Sessions must be assumed to have approved the action of the district attorney, and the defendant has been tried, convicted and sentenced on the bills found, by the second grand jury, if there was wrong, it was one which the Quarter Sessions could alone redress, and this court is powerless to interfere.</p>

<p>The 1st sect, of the Act of 12th July 1842 forbids arrest and imprisonment on any civil process issuing out of any court in any suit founded on contract, and where the parties to an action treated the cause as one of alleged breach of warranty on a contract, and the plaintiff having obtained a verdict and judgment, without proof tff actual or intentional fraud, issued a capias ad satisfaciendum, upon a rule to show cause granted by the court, it was error to refuse to set aside the writ of ca. sa.</p>

1, of Allegheny county: Of October and November Term 1876, No. 91. This was an action of assumpsit, brought by W. N. Liblong against the Kansas Fire Insurance Company.

<p>1. Judgment under a rule of court was entered by the prothonotary upon counsel’s praecipe, against O’H., in default of notice of affidavit, specification and statement of defence. The affidavit of O’H. was not a specification of set-off and statement of defence, but a total denial of liability upon the mortgage sued upon. On motion, the court refused to strike off the judgment. .Held, to be error.</p> <p>2. A motion to set aside or strike off a judgment must be on the ground of irregularity appearing on the face of the record; a motion to open it is an appeal to the equitable power of the court, to let the defendant into a defence.</p>

<p>Error to the Court of Common Pleas of Erie county: No. 84, of October and November Term 1875.</p> <p>This was an action of assumpsit, brought by W. W. Reed against Harriet W. Reed, executrix, and 0. M. Reed and J. 0. Harrison, executors of Charles M. Reed, deceased. ■</p> <p>The declaration set forth, that the deceased, Charles M. Reed, entered into a contract with the plaintiff to procure a purchaser for what was known as the Erie canal, running through Pennsylvania from the city of Erie to the Ohio river, in which improvement the deceased ivas the principal stockholder and otherwise largely interested, and that deceased agreed to pay to plaintiff $10,000 if he procured a purchaser and effected a sale of the canal, which sale plaintiff effected, wherefore the deceased became liable to pay plaintiff the sum of money above mentioned.</p> <p>The evidence disclosed these facts: That in the latter part of July 1870, Henry Rawle being with General Reed, the deceased, at his house in Erie, W. W. Reed, the plaintiff, who was superintendent of the canal in question, came into the room, and after some talk, General Reed expressed a desire to dispose of the canal, as it was a matter which annoyed him; that he was not able to get about and did not meet with the active business men along the line of the canal very often; and just as Mr. Rawle and the plaintiff were about to leave the room, • the general said to plaintiff, that if he would get up a party to buy the canal and relieve him of the care of it he would give him $10,000, which amount it appeared was not conditional upon any particular sum for which the canal should be sold. Shortly thereafter the plaintiff and Mr. Rawle went "to Sharon, and thence to Pittsburgh, and interested several parties in the project, who met in Erie on the 9th of August 1870 and in a body went to the house of General Reed and made a proposition to him to purchase the canal. It was in evidence that the plaintiff was the principal in securing the co-operation of these parties, Mr. Rawle becoming one of the parties to purchase, but having no interest in the commissions to be received by plaintiff. The proposition made by these gentlemen at this meeting Avith General Reed Avas afterwards embodied in a formal offer to purchase, in writing, the amount named being $200,000. The plaintiff himself was one of the parties who signed the proposition. About a week after this meeting General Reed made a counter-proposition in writing to these parties, with the modification, that the price to be paid should be $250,000, and some other minor conditions. After the meeting at the house of General Reed, the Pittsburgh gentlemen of those who had signed the offer, started to the east on a pleasure trip, and it seemed to- be the understanding that the parties making the offer Avere to have the refusal of the purchase until the return of those who had gone east. About the middle of September, General Reed informed Mr. RaAvle, who with Mr. Met-calf and the plaintiff were an advisory committee of the parties wanting to make the purchase, that he would give them no longer than to three o’clock of that day to decide whether they would take the canal on the terms of his counter-proposal. The committee having no power to conclude any arrangements, General Reed addressed a note to Mr. Rawle and plaintiff in these words: “ My proposition for the sale of the Erie canal not having been accepted by you is hereby withdrawn,” and upon the same day, the 15th of September 1870, the canal was sold to Mr. W. L. Scott, the president of the Erie & Pittsburgh Railroad, and was afterwards transferred to the railroad.</p> <p>The canal competed with the railroad for the business of the section through which it passed, and Mr. Scott testified, that he did not think he Avould have purchased it and paid the price he did had no other negotiations been pending for its purchase. The parties who signed ‘ the offer were responsible, and Avere .willing and anxious to make the purchase, even to doubling their subscriptions. Their signatures Avere in the main procured at the solicitation of the plaintiff; • It appeared, also, that most of them know nothing about General Reed’s'counter-proposal until the sale ;to Mr. Scott.It was in evidence also, that General Reed had confidentially informed plaintiff that he had an offer from Scott, and that plaintiff admitted that he had made no objection at'the time'.</p> <p>The following'points were presented by defendants -</p> <p>1. If the jury believe from the evidence that’ some time in July 1870 there was an agreement between General Charles M. Reed and the plaintiff, by which plaintiff was authorized to sell the Erie canal, as the agent of General Reed, before the plaintiff is entitled to recover he must show to the satisfaction- of the jury "that he, plaintiff, made a sale or procured a sale to be made of the said canal.</p> <p>Answer :• “Refused, because no evidence of such a contract.”</p> <p>6. That General Reed had a right to withdraw the proposition</p> <p>made to the parties proposing to purchase, before their notifying him of their acceptance, and also had’the sight-to withdrawthe proposition made to plaintiff, and if he did withdraw it the plaintiff is not entitled to recover. ■ ! - ■'</p> <p>Answer: “ Affirmed, if no time was fixed for acceptance.”</p> <p>7. That the agreement between General Réed añd plaintiff, testi-</p> <p>fied to by Henry Rawle, of-July 1870, could not be enforced in law for the want of mutuality. 1 - ■ •</p> <p>Answer: “Refused.”</p> <p>8. If General Reed communicated to plaintiff: his intention of making the sale to William L. Scott,' before the sale was made; and plaintiff did not protest against it or claim- his commission, plaintiff cannot recover.</p> <p>Answer: “Refused, but refer to'general charge.”</p> <p>9. Upon the whole evidence, the plaintiff is not entitled to' recover. - 1 ■ .....-</p> <p>Answer: “We' decline’ so "to' charge, for we- cannot withdraw the facts from you.” • :-</p> <p>5: If plaintiff acted with the parties proposing to purchase, -and in their interest, it was'against the interest of General Reed, and plaintiff is not entitled to recover.</p> <p>Answer: “Affirmed, if he acted adversely'to General Reed’s interest.” ° - • •</p> <p>The court (Vincent, P. J.), in their general charge, inter alia, said:— * ‘</p> <p>í<r A party was made-up by the efforts of th'e plaintiff, the membefs of which were willing to buy General Reed’s interest, and they made to him a written offer to pay-$200^000 for it. - When this proposition was presented to General Reed he did not accept it, but made a counter-proposition to them, offering to take $250,000-for his interest.- The proposition was never accepted'by the proposed purchasers, and the most of them say they never heard of it-until after it had been sold to another party. This occurred about the middle of August 1870, and up to this time no party had been found that had agreed to take Reed’s interest in the canal at the price at which he was willing to sell it. If this was all, General Reed had a perfect right to recall his offer at any time, and unless the party that was made up acceded to his ultimate terms, the contract between the plaintiff and General Reed would be at an end. [But if General Reed gave to the party organized by the plaintiff five or six weeks in which to accept or refuse General Reed’s counter proposition, and before the expiration of that time the offer was withdrawn on a few hours’ notice and before it was possible to communicate with the parties desiring to purchase, and then the party were unable to perfect the purchase, and not because of their unwillingness to accept the proposition of General Reed, we think the plaintiff had complied with his part of the contract and is entitled to recover, unless he has forfeited his right for some other reason.]</p> <p>“ The plaintiff was, in one sense of the word, the agent of General Reed, at least to the extent of requiring from him perfect good faith towards the general in the whole proceedings.</p> <p>“ No price having been fixed by General Reed at which his interest would be sold, it was the duty of the plaintiff to get as good a price for the interest as he could induce the party to offer, and it was clearly his duty to make known to General Reed the utmost price which his party would give, if it was known to him. If he knew that his’ party was willing to pay $250,000, it was not good faith to General Reed not to let him know that fact, and his failure to do so would forfeit all claim on his part to any compensation for what he had done, and in that case he cannot recover. There was nothing in the relation between the plaintiff and General Reed that forbade the plaintiff to become openly one of the purchasing party, and especially when General Reed took no exception to his standing in that relation. If General Reed gave no specified time for the consideration of his proposition of sale, he could recall his offer whenever he pleased and sell to another, and the plaintiff would not thereupon have a right to recover the amount promised in case he got up a party to take the canal, for he did not get up a party willing to take it on terms that General Reed would agree to, and that the subsequent sale showed were not unreasonable. General Reed was not bound to take any price the party organized to buy saw fit to offer. He had a veto power over the whole matter until the party came to his terms. If General Reed told the plaintiff that he intended to withdraw the proposition he had made, and it was received by him without any protest that the time given had not elapsed, it is strong evidence that he did not understand that any time was given, as testified by Mr. Metcalf, and it is to be considered by you that no one of the parties proposing to buy testify that they were to have five or six weeks to make their decision on General Reed’s offer.”</p> <p>The verdict was for the plaintiff, and judgment was afterwards entered for the sum of f12,460, principal and interest from October 15th 1870.</p> <p>The defendants sued out this writ, the portion of the charge in brackets constituting the first assignment, and the refusal of the several points of the defendants in the order mentioned heretofore the second, third, fourth, fifth, sixth and seventh assignments of error.</p>

<p>Appeal from the Orphans’ Court of Erie county: Of October and November Term 1875, No. 85.</p> <p>This was an appeal by Harriet W. Reed, executrix, and Charles M. Reed and J. C. Harrison, executors of Charles M. Reed, deceased, from a decree of the court below making a partial distribution of the estate of the testator.</p> <p>General Reed died December 14th 1871. By his will, after certain specific gifts, he gave four-twelfths of his residuary estate, real and personal, to his wife, two-twelfths to each of his two sons, two-twelfths to his daughter Nellie, and the same share, less certain advancements, to his grandchildren Alice R. and Marion L. Rawle, children of a deceased daughter. He provided that his real estate should “not be parted and divided” and gave the same to his executors and executrix in trust, with power to improve and sell in their discretion, the proceeds of all sales to be divided in the above named proportions. His daughter Nellie died before her father and after the date of the will, in her minority and without issue.</p> <p>. Henry Rawle, the guardian of the grandchildren, filed a petition in April 1873, praying for a division of the personal estate. The executors and executrix in answer thereto averred that the personal estate consisted of hotel furniture, mortgages, notes, articles of agreement, railroad stocks and bonds, &c., and that the same could not be converted into money, and that they had already divided the personal estate as fast as they could convert it into money.</p> <p>The court below (Vincent, P. J.) was of. opinion that the personal estate should be divided, in kind, and appointed an auditor to make a scheme of distribution of the securities and assets held by the estate.</p> <p>Upon the coming in of the report, the court ordered two-ninths of the personal property belonging to the estate to be transferred to the petitioner, being of opinion that the lapsed residuary gift to the deceased daughter Nellie passed to her two brothers and the children of her deceased sister, in equal parts, and that the widow could take nothing under the intestate act, without refusing to take her residuary share under the will.</p> <p>The'executrix and executors took this appeal; the material assignments of error raised the question discussed in the opinion of the court.</p>

124. This was a scire facias sur mortgage, issued by Lovrein, Hall & Co., to the use of Noble & Hall, against Y. M. Thompson and Rebecca Thompson his wife. The writ of scire facias throughout described V. M. Thompson as one of the grantors in the mortgage, the other being Rebecca his wife.

<p>Error to the Court of Common Pleas of Jefferson county: Of October and November Term 1876, No. 133.</p> <p>This was an amicable action wherein Theodore Wilson was plaintiff and Henry Brown defendant.</p> <p>The facts of the case are siifficiently set forth in the opinion of this court.</p> <p>The parties submitted the matters in controversy to arbitrators, who made an award which the plaintiff moved the court to strike off on the ground that it was not final and conclusive and the court struck it off.</p> <p>Plaintiff took this writ and assigned for error that the court erred in striking off the award and in making the rule absolute.</p>

<p>Error to the Court of Common Pleas of Erie county: Of October and November Term 1876, No 27.</p> <p>Assumpsit by John H. Bright and E. G. Benedict, against Anson Porter and others, doing business as the Corry Savings Bank, to recover the amount paid by them for certain coupon bonds of the city of Corry, sold to the plaintiffs by the defendants, which were alleged to have been counterfeit.</p> <p>The sale to the plaintiffs was made .in April 1878. The defendants, at the time of the sale, cut off and retained the coupons of July 1878; the spurious character of the bonds was therefore not discovered till after the coupons bf January 1st 1874 matured. Sometime in January 1874, the plaintiffs tendered the worthless bonds to the defendants, and soon afterwards brought this action.</p> <p>The only evidence printed in the paper-books was that of the plaintiffs below. That tended to prove that Bright and Benedict had bought the bonds from the defendants in the ordinary course of business, supposing them to be genuine, without any intimation or suspicion that they were not so, and without any agreement that the buyers should take the risk of the bonds turning out to be counterfeit., It was admitted that the bonds were counterfeit.</p> <p>The defence set up was that Bright and Benedict bought the bonds with the knowledge that there might be some defect in them, relying upon their own inquiries as to the genuineness of the bonds, and at their own risk. To establish this defence the defendants offéred evidence to prove that they hafd bought the bonds supposing them to be genuine, after having made inquiry of the treasurer, mayor and clerk of the city of Corry as to their genuineness, and that at the time of the sale the plaintiffs were informed what these city officers had said as to their genuineness; that the defendants had declined to sell to the plaintiffs until after the plaintiffs had satisfied themselves that the bonds were genuine by making inquiries of these officers; that afterwards the plaintiffs called on the defendants and said they had inquired as to the genuineness of the bonds, and were satisfied from what they had heard that they, were genuine; that Anson Porter, one of the defendants, stated to the plaintiffs that he would only sell' them the bonds upon information acquired by the plaintiffs themselves, and would guarantee against nothing except their being stolen bonds; and that the bonds were all inspected by plaintiffs before they bought.</p> <p>The plaintiffs objected to the testimony as irrelevant, and the court sustained the objection.</p> <p>Among the defendants’ points were these:—</p> <p>6. That in the purchase and sale of the said bonds the law of caveat emptor applies.</p> <p>“ Refused. We think it does not apply to such a transaction.” -r7. If the jury find from the evidence that the bonds in suit were bought by plaintiffs on the-30th April 1873, and that they did not offer to return the bonds to the defendants until the 19th January 1874, then the plaintiffs have been guilty of negligence and cannot recover in this case.</p> <p>“We decline so to charge, but leave it to you as a question of fact. If the plaintiffs made known the character of bonds to the defendants within a reasonable time after they discovered it themselves, they were not negligent.”</p> <p>The jury found for the plaintiffs. After judgment the defendants below took this writ of error, assigning for error the -rejection of evidence as above shown and the refusal to charge as requested by the defendants.</p>

<p>Where the grantor by deed of warranty had a title which, at the time of the conveyance, was defective, but afterwards acquired an indefeasible title, this title enured immediately to the grantee, and the latter could not elect to reject it and recover the consideration-money paid, in an action for breach of covenant of seisin, but was entitled only to compensation for whatever damages he had sustained.</p>

<p>1. The Acts of 24th February 1806 and of 15th April 1856, both expressly require that there shall be a request by one or the other of the parties to an action before the judge’s charge can become a part of the record, and where on the trial below the defendant put certain points to the court in writing, to the answers to which he did not except and the plaintiff did, and the answers of the court were filed, but the record did not show that they were filed at the request of either party, they are no part of the record on which the defendant can assign error, and he cannot avail himself of the exceptions of the opposite party.</p> <p>2. The Act of 17th April 1856, the third section of which requires the court to charge the jury on particular points of law, &c., at the request of either party, is not a general law and applies only to the courts of the Sixth Judicial District.</p> <p>3. The legislation requiring that the charge of the court be reduced to writing and filed at the request of counsel, and the judicial interpretation of this legislation reviewed and commented on by Shaeswoob, J.</p>

<p>Error to the Court of Common Pleas of Clarion county: Of October and November Term 1876, No. 17.</p> <p>This was an ejectment brought by James McCray against John Clark and Robert H. Patton, for a tract of land containing one hundred and seven acres, situated in Highland township, Clarion county.</p> <p>On the trial, before Jenks, P. J., it was admitted that previous to 1861 the title to the land in dispute was in Columbus Reed.</p> <p>The plaintiff claimed by virtue of articles of agreement under seal dated the 29th of December 1864, acknowledged the 25th of December 1871, and recorded December 26th 1871, wherein Columbus Reed sold and conveyed the land in question to plaintiff for $600, receipt of which was acknowledged in the agreement. Plaintiff, it appeared, never took actual possession of the land himself or by tenant.</p> <p>The defendant Clark claimed that, on the 4th of May 1861, he entered judgment in the Court of Common Pleas of Clarion county against Columbus Reed for the sum of $346.74; that on the 2d of March 1866 he issued a scire facias to revive this judgment against Reed, which scire facias it appeared named no one as terretenant and contained no directions to the sheriff to serve on parties in possession, nor was McCray served with the writ. On the back of the writ Reed accepted service, and on the 10th of May 1866 .judgment was taken in default of an appearance.</p> <p>On the 9th of March 1868 a writ of fieri facias issued, and the property was levied on, condemned and sold to Clark for $145, to whom the sheriff acknowledged and delivered a deed on the 10th of December 1868.</p> <p>The defendants contended that this sale divested all title and interest of McCray in the land, inasmuch as McCray had failed to comply with the requirements of the Act of 16th of April 1849, Pamph. L. 664, which provides that “ in all cases where a judgment has been or shall be regularly revived between the original parties, the period of five years during which the lien of the judgment continues shall only commence to run in favor of the terretenant from the time that he or she has placed their deed on record; provided, that this act shall not apply when the terre-tenant is in actual possession of the land bound by such judgment by himself or tenant.”</p> <p>In rebuttal the plaintiff proposed to prove by Columbus Reed that at the time John Clark issued his scire facias against Columbus Reed to revive his judgment, and at the time Reed accepted service of the writ, he admitted that he had notice of McCray’s title, and that he was content to revive against Reed’s other land alone, and having done so, the knowledge on his part of McCray’s title is equivalent to the recording of the deed, and Clark and those under him cannot be innocent purchasers.</p> <p>Defendants objected, and the court ruled: “ There is no allegation that McCray was in possession of the land ; he did not put his title upon record until the 26th of December 1871. We do not see how the evidence, if admitted, would invalidate as to him either the lien of or sale under the judgment. The objection is sustained, and evidence excluded.”</p> <p>Plaintiff excepted, and a bill was sealed.</p> <p>The verdict was for the defendants.</p> <p>Plaintiff took this writ, and assigned for error the rejection of his offer of evidence.</p>

<p>Dwight and Ashton leased a tract of oil land to Mays, with one well partly bored thereon ; Mays agreed to sink this well deeper, and to pay the lessors a royalty of one-fourth of the oil obtained from it. It was the understanding of both parties to the lease, that this well was situated upon the tract leased; it afterwards appeared that it was not within the lines of this lease, whereupon the lessees offered to deliver possession of the premises leased and refused to pay a royalty. In a bill filed by the lessors for an account of profits, the court below ordered an account: Held, that it was a case of mutual mistake, against which equity will relieve, and that the bill should have been dismissed.</p>

<p>1. Lien creditors of a decedent’s estate who deem their interests injuriously affected by the delay of an executrix to sell real estate, have a remedy by proceedings on their claims or under sect. 31 of the Act of 29th March 1832 (Pamph. L. 198).</p> <p>2. An executrix, with a discretionary power of sale under a will, for the payment of debts, refused to sell certain valuable real estate at a fair price, which had been offered to her, hut held it for two years, in the hope of a larger price through the revival of business. She received and appropriated the rents for two years, but at the same time kept the property m good repair. Upon petition by certain lien creditors, who alleged that she had thereby mismanaged the estate, she was removed: Held, that there was no cause for a removal, but that the petitioning creditors should have been left to their appropriate remedies.</p> <p>3. The fact that she at one time, agreed to make a sale, but afterwards refused, unless a bonus was paid to her, and the rule of law that the rents during this time belonged to her individually under the will, and did not go to the creditors, do not affect the question.</p>

<p>Appeal from the Court of Common Pleas of Cambria county: Of October and November Term 1876, No. 208.</p> <p>This was the appeal of John D. Wentroth from the decree of the court making distribution of the proceeds of the sheriff’s sale of the personal property of Nicholas Wolf.</p> <p>The case was thus: Wentroth, under two executions, levied on property of Wolf, consisting of a portable steam saw-mill and fixtures, and a lot of lumber, logs, bark, &c. On the day of the sale, notice was served upon the sheriff by Frederick Snyder, that he claimed a preference out of the proceeds of the sale, which notice was in pursuance of the 1st and 2d sections of the Act of April 9th 1872, Pamph. L. 47, Purd. Dig. 1464, which gives a preference to miners, mechanics, laborers, or clerks, for labor or services rendered, for any period not exceeding six months, immediately preceding the sale of the property of their debtor, and if they give notice in writing of their claims to the officers executing the writ before sale, making it the duty of these officers to pay them out of the proceeds of sale the amount they are entitled to receive, not exceeding $200. The sheriff proceeded to make the sale and the fund arising therefrom was referred to an auditor for distribution •</p> <p>It appeared before the‘auditor that Wolf and Frederick Snyder had a written agreement under the terms of which Snyder Avas to deliver at the steam saw-mill of Wolf all the “ hemlock timber now cut down and peeled on the Wentroth tract of land, formerly Rorabaugh’s, and on the Pensacola tract,” Avithin a certain time, for Avhich he Avas to receive $2.50 per thousand feet, the payments to be made as stipulated in the agreement. It seemed that the hauling was not done by Frederick Snyder or Avith his teams, but by his brother and nephew and several other parties Avho were employed by Snyder and who used their OAvn teams to haul the lumber.</p> <p>Michael Snyder, the brother of appellee, testified: “ I was carrying this article of agreement for my brother. I had nine or ten teams employed. The entries in regard to lumber hauled and the credits given Ayere made by my son George. I was acting as the agent of Frederick Snyder. The teams and hands Avere paid by orders drawn on Wolf, and Avere to be charged to Frederick Snyder.”</p> <p>The auditor decided that Frederick Snyder was entitled to the preference under the act, and awarded him' $200 out of the fund.</p> <p>Wentroth excepted on the ground that Frederick Snyder never performed any part of the labor for which the preference was allowed; that he was a contractor living away from where the work was performed, and never had been present or superintended its performance.</p> <p>The court dismissed the exception and confirmed the report of the auditor, from which decree this appeal was taken, and the error assigned was in substance that contained in the foregoing exception.</p>

<p>B. was the owner of several hundred barrels of oil in the pipes or tanks °f the Union Pipe Line, for which he had two accepted orders on said company. B. delivered these orders to the firm of Ii. & B., oil dealers, and took from them a receipt, the terms of which were, that the oil was to be held for storage at five cents a barrel per month. At the time of the delivery of the accepted orders to H. & B. the oil was in the tanks or pipes of the Pipe Line and undistinguishable from the other oil therein. II. & B. deposited the orders to the credit of their general account with the Pipe Line, and thereafter deposited and drew until, they became embarrassed and, to meet their engagements, continued to draw on their balances on the books of the company until they failed. B. demanded the oil and H. & B. were unable to deliver it: Held, that they were guilty of larceny as bailees.</p> <p>2. The delivery of the accepted orders was a delivery of the oil and constituted a bailment, and the defendants having converted the oil to their own use, the conversion was fraudulent and they were guilty of larceny.</p> <p>3. The first count of the indictment charged the defendants with embezzlement as “ trustees and agents;” the third, with embezzlement as “ bailees,” and the fourth with embezzlement as “ trustees, agents and bailees:” Held, that the first and fourth should have been quashed, because they blended two or more offences in one count, and the third, because there is no offence at, common law nor under the code such as that charged therein.</p> <p>4. A count charged defendants with larceny as “ bailees and agents:" Held, that there being no such offence as “larceny as agents,” and as the word “ agents” did not introduce another offence into the count, it should be rejected as surplusage.</p> <p>5. Defendants demurred to the evidence and the Commonwealth having joined therein, the court discharged the jury and gave judgment for the Commonwealth on the demurrer: Held, that this was not erroneous.</p> <p>6. Under the provisions of the Act of 19th of May 1874, in all cases of felonious homicide and such other criminal cases as are triable exclusively in the Oyer and Terminer-, writs of error and certiorari are of right, and in all other cases may be issued whenever allowed by the Supreme Court or a judge thereof.</p>

<p>Appeal from the Court of Common Pleas, of Westmoreland county: Of October and November Term 1876, No. 225.</p> <p>This was the appeal of Lloyd, Huff & Watt, from the decree of distribution of the proceeds of the sale of the real estate of A. B. Bair.</p> <p>On the 22d of April 1874, Lloyd, Huff & Watt made an auction sale of town lots at Latrobe, Penna., and two of them were knocked down for $618 to A. B. Bair. The conditions of the sale were that one-third of the purchase-money should be paid in hand, and the balance in two annual payments, with interest to be secured by a judgment bond, which conditions it appeared were in writing, and posted up in one or two places on the day of sale. Bair paid no money on the day of sale, nor did it appear that he entered into any arrangement at that time in writing or otherwise for the payment. In May following he fenced and farmed the lots as they had been marked off previous to the sale.</p> <p>On the 21st of October 1874, Bair paid to Watt $200 in cash, which was the first payment on the lots, gave his due-bill for $13, and executed a judgment bond for $800, conditioned for the payment of $200 on the 22d of April 1875 and 1876 respectively, with interest, which amounts would make the balance of the purchase-money. On the same day the deed for the lots was delivered to Bair.</p> <p>On the 7th of October 1874, William Pickersgill entered a judgment against Bair, and on the 22d of January 1875, Lloyd, Huff & Watt entered judgment on the bond given by Bair for the purchase-money, $200 of which, with interest, were unpaid. The lots in dispute were sold and the proceeds in the sheriff’s hands, $260, were claimed by Pickersgill and Lloyd, Huff & Watt on their respective judgments.</p> <p>A schedule of distribution was made by the sheriff, who allotted the fund after deducting costs to the Pickersgill judgment, to which distribution Lloyd, Huff & Watt excepted and an auditor was appointed to report on the exceptions.</p> <p>In the exceptions filed with the auditor it was contended that Bair had neither the legal nor equitable title to the lots in question until the 21st of October 1874, when he paid the first money, gave the judgment bond and accepted the deed, and that the judgment of Lloyd, Huff & Watt, having been entered subsequently to that date, fastened to the perfect title to the exclusion of the Pickersgill judgment, Avhich was entered while the full title was in the vendors and could not be made to attach to the title of Bair except by scire facias and a revival of the judgment.</p> <p>The auditor decided that Bair had an equitable interest in the land, which commenced at the time the property was knocked down on the 22d of April 1874, and such an equitable estate as was bound by the judgment of Pickersgill, entered on the 7th of October 1874, and that on the delivery of the deed by Watt on the 21st of October 1874, the equitable title merged in the legal title, and when the legal title was obtained the judgment attached and bound the united interest.</p> <p>He therefore refused to sustain the exceptions to the distribution made by the sheriff, and reported the same distribution. '</p> <p>To this report Lloyd, Huff & Watt excepted, and the court overruled the exceptions and confirmed the report, from which decree this appeal is taken.</p>

<p>1. A bond of indemnity given to an accommodation endorser conditioned upon the payment of certain notes or a single renewal of them, does not cover subsequent renewals.</p> <p>2.. In such case, where the notes were renewed twice, the lien of a judgment upon the bond, even if good between the parties to it, by an agreement between them to that eifect, is postponed to the lien of a mortgage upon real estate bound by the judgment, given by the defendants in the judgment before the second renewal of one of the notes and on the day of the second renewal of the other.</p>

242. This was an action of assumpsit, brought by the First National Bank of Mount Pleasant against B. F. and C. S. R. Overholt, trading as B. F. Overholt & Co., upon two promissory notes, dated July 6th 1876, for $2200 and $2000 respectively, at six months, made by B. F. Overholt & Co. to the order of 0. S. R. Overholt, at the First National Bank, and endorsed by 0. S. B. Overholt and B. F. Overholt & Co., which notes were discounted by said bank.

213 and 218. Hugh Corrigan died 20th July 1856. The county of Westmoreland brought suit, on the 4th June 1857, against his administrator, to recover the costs on an indictment in the Oyer and Terminer for homicide, and on the 23d February 1859 judgment was obtained by the county for $625.55.

<p>Error to the District Court of Cambria county: Of October and November Term 1875, No. 297.</p> <p>This was an ejectment for 200 acres of land in Cambria county, brought by James Potts and George Bheam against Henry Wright and wife.</p> <p>The land was a part of a tract in the warrantee name of Joseph Taylor, and to which, about 1825, John Harshberger made claim, who moved thereon with his family,- cleared a portion of the land, marked its boundaries, built a log cabin, and continued in possession until the time of his death in 1850.</p> <p>He left a wife, Nancy, and two daughters, Mary and Betsy. Mary ran off, when quite young, with Isaac Haws, with whom it appeared she lived unhappily up to 1855, when they separated. She had a child, Nancy, who was intermarried with Henry Wright, defendant in this action.</p> <p>Under said John Harshberger both plaintiffs and defendants claimed to own the land.</p> <p>Harshberger, when he died in 1850, left a will, wherein John Galbreath was named as executor. Galbreath, on the 29th of March 1851, renounced his executorship, and on the same day Nancy Harshberger, the wife of testator, having renounced her right to administer, at her request T. L. Heyer was appointed administrator cum testamento annexo.</p> <p>On the 14th June 1853, the administrator petitioned the Orphans’ Court for an order for the sale of the land in dispute, to pay the debts of decedent; the petition, which was under oath, setting, forth that an appraisement showed his personal estate was insufficient to pay his debts, and accompanying this petition was a schedule of the debts.</p> <p>The court ordered the sale, and on the 7th of September following the administrator returned that he had sold the land to. James Shannon for $350, which sale the court confirmed. Shannon refused to take the property, and an alias order was made and the land sold for $300, on the 15th December, to L. B. Cohick, which sale was likewise confirmed. Subsequently Cohick refused to take the land, and the court made a pluries order, under which, on the 5th of December 1854, it was sold to the plaintiffs. The administrator executed, acknowledged and delivered a deed to plaintiffs, and made his report to the Orphans’ Court, who confirmed the sale on the 5th of June 1854.</p> <p>It did not appear that a bond was filed by the administrator for the due performance of his duty and for the proper distribution of the fund arising from the sale, or that a mortgage was given at the time .of sale by purchasers for part of purchase-money, as required by the order of court, the conditions of the sale being that one-third was to be paid down and the remaining two-thirds in annual payments ; but it was in evidence that the whole of the purchase-money was paid to the administrator.</p> <p>During all these proceedings James Potts, one of the plaintiffs, to whom the land was sold, acted as counsel of the administrator.</p> <p>At the time this sale was made Isaac Haws, the son-in-law of John Harshberger, was living on the land, having entered before the decease of the latter and remaining there by his sufferance.</p> <p>Proceedings were instituted in 1856 before two justices, under the Act of April 9th 1849, to recover the land from Haws, who, as appeared by the record of the justices, refused to give possession to plaintiffs. In pursuance of these proceedings a writ of possession issued with an execution for costs, and the sheriff went to the premises, and finding no one there made proclamation and levied on some chattels he found in the house. He returned the next day and found Mary Haws in possession, and he then gave plaintiffs, who were with him, possession of the land, and took away the chattels for sale for costs.</p> <p>It appeared that plaintiffs paid the taxes after the sale on the land and exercised other acts of ownership.</p> <p>It appeared also that Mary Haws had lived on the land for short periods from about 1850 to 1873, one period of absence extending over ten years; that she had authorized her sister Betsy, who lived on an adjoining tract, to have a care over this land, and that Wright, her son-in-law, occupied the premises by her authority.</p> <p>Wright’s only occupancy was a short time in 1860, and his occu.pancy which commenced in 1874, and to dispossess him of which this .suit was brought.</p> <p>The contention of the defendants was that there was collusion and fraud practised in the sale and purchase of the land by the administrator and the purchasers; that the defendants, or those under whom they claimed, had held adverse possession of the premises for over twenty-one years previous to the issue of the writ of ejectment, and that the Orphans’ Court had no jurisdiction to decree an alias or pluries order of sale until the confirmation of the previous sales was set aside.</p> <p>On the trial plaintiffs submitted the following points, accompanying which are the answers of the court:—</p> <p>1st. The court is requested to instruct the jury that the title of the plaintiffs, in evidence, being derived from the sale of the premises by an order of the Orphans’ Court, upon the petition of the administrator of John Harshberger, deceased, for the payment of his debts, the sale so made and confirmed by the court, the money paid by the plaintiffs, and a deed therefor executed and delivered by the administrator to the plaintiffs, and possession of the same obtained by the plaintiffs in pursuance of law, divested all the title and possession that was in John Harshberger, and his heirs claiming under him, and vested the same in the plaintiffs; and that the defendants, admitting themselves to hold their alleged title from the heirs of John Harshberger, deceased, cannot controvert the title of the plaintiffs in this collateral proceeding, and the verdict must, therefore, be for the plaintiffs.</p> <p>Answer: “ Upon this point we instruct that if no fraud or collusion is shown between Iieyer, the administrator, and the plaintiffs in this case in the sale or purchase of this land, and the jury believe, under all the evidence, that there was such delivery to and possession by the plaintiffs as is contemplated by the law, we affirm this point. And this is a matter for you to determine upon the testimony.”</p> <p>This answer was the sixth assignment of error.</p> <p>2d. That the plaintiffs having been put in possession of the premises by the sheriff of Cambria county, on the 21st of July 1856, on a writ of possession issued by two justices of the peace, by virtue of certain proceedings had by them aird a jury, in which Potts and Bheam were plaintiffs, and Isaac Haws (husband of Mary Haws, one of the heirs of John Harshberger, deceased, and under whom defendants claim title), then in possession, was defendant, which proceedings were had under the provisions of the Act of 9th of April 1849, the plaintiffs thereby acquired the actual possession of the same as against the heirs of John Harshberger, and all persons claiming under them; and the alleged adverse possession o'f the defendants, under the heirs of John Harshberger, deceased, must, therefore, date from the delivery of the premises by the sheriff, as aforesaid, to the plaintiffs, under the proceedings aforesaid, and that twenty years not having elapsed from that time until the bringing of this suit, there is no adverse possession in the ’defendants to defeat the plaintiffs’ title. .</p> <p>Answer: “We affirm this point, with this exception. If the jury believe, from all the evidence, that there was such delivery of possession by the sheriff, on the 21st of July 1856, under the proceedings of said justices of the peace, and if the proceedings were regular, and in accordance with the Act of Assembly, we affirm this point. You have heard the testimony in regard to this. There must be three days’ notice, including the day of service and excluding the day of trial. It seems to be pretty well shown that there was such service.”</p> <p>This answer was the seventh assignment of error.</p> <p>4th. That to give title by adverse possession, the possession must be for twenty-one years; that such possession must be actual, visible, exclusive and notorious ; that it must also be continuous and uninterrupted; that from all the evidence in the case the defendants, or those under whom they claim, have not been in such possession, either by actual residence on the same, or cultivation thereof for twenty-one years before the bringing of this suit, as would defeat the plaintiff’s title.</p> <p>Answer: “ We affirm the first proposition in this point, that to give title by adverse possession, the possession must be adverse for twenty-one years, and we leave it to the jury, upon the evidence, to say whether or not the defendants, or those under whom they claim, have held such possession.”</p> <p>This answer Ayas the eighth assignment of error.</p> <p>5th. That the Orphans’ Court of Cambria county, under the’ proceedings and decrees of which the plaintiffs derive title, is a court of record, with all the incidents of a court of record at common law; that its proceedings and decrees in all matters where it has jurisdiction, cannot be reversed or avoided collaterally in this court or any other court, and are only liable to the usual modifications or alterations, on an appeal to the Supreme 'Court; that the order of said court for the sale of the premises in suit, being for the payment of debts of John Harshberger, the decedent, A\'as clearly Avithin the jurisdiction of said Orphans’ Court; and that the proceedings of said court on said petition and order of sale, cannot be controverted by this court or jury in this collateral proceeding by the heirs of John Harshberger, or the defendants claiming under them.</p> <p>Answer: “In the absence of fraud or collusion between the administrator and the plaintiffs, we affirm this point. But we say that fraud will make void any contract, no matter what the decree of the court may have been.”</p> <p>This answer was the ninth assignment of error.</p> <p>6th. That the defendants, by an abstract of title filed in this case, claiming title under the will of John Harshberger, deceased, through Mary and Elizabeth, his daughters, are not at liberty to hold or claim adverse to that title in this suit; that the title of the said John Harshberger, being divested by the sale of his administrator, to the plaintiffs under an order of the Orphans’ Court, the plaintiffs by virtue of the proceedings in said Orphans’ Court, the payment of the purchase-money, and the delivery of the deed to them, have all the title John Harshberger had in his lifetime, and his heirs, under his will, to the premises aforesaid.</p> <p>Answer: “We affirm this point, if there has been no fraud or collusion shown in this .case.”</p> <p>This answer was the tenth assignment of error.</p> <p>11th. That it is too late after sale under an order of the Orphans’ Court, confirmation of the sale, money paid, and deed delivered, to object to the sale.</p> <p>Answer: “If the sale has been in accordance with the orders and decrees of the court, and no fraud or collusion shown, we affirm this point.”</p> <p>This answer was the eleventh assignment of error.</p> <p>12th. Under all the evidence in this case, the verdict of the jury must be for the plaintiffs.</p> <p>Answer: “We refuse so to instruct you, but leave it to you to determine whether or not, upon all the evidence, the verdict should be for the plaintiffs or the defendants in the case.”</p> <p>This answer was the twelfth assignment of error.</p> <p>Defendants submitted the following points:—</p> <p>6th. That if the jury find, under all the evidence, that Mary -Harshberger was not, in fact, dispossessed by the sheriff, and no tenant was put in possession under and by virtue of the sheriff’s writ for- the plaintiffs, or by the plaintiffs themselves, then there was nothing to interrupt the running of the Statute of Limitations, and their verdict should be for the defendants.</p> <p>Answer We affirm this point, and leave it to the jury to determine if such possession was given to the plaintiffs by the sheriff.”</p> <p>This answer was the thirteenth assignment of error. ■</p> <p>9th. If the jury believe, from all the evidence, that there was any fraud, legal or actual, on the part of the administrator aforesaid and James Potts, in selling this land, or procuring it to be sold, then the verdict should be for the defendants.</p> <p>Answer: “ We instruct you, that if the testimony-satisfies you that there was fraud and collusion in the sale and purchase of this land by the administrator and James' Potts, it avoids the sale and renders the contract null and void. It is a question for you to determine.”</p> <p>This answer was the fourteenth assignment of error.</p> <p>The following are portions of the charge; those in brackets constituted, in the order they are marked, the first, second, third, fourth, fifth and fifteenth assignments of error:—</p> <p>“ It is claimed here, on the part of the plaintiffs, that the return of the administrator was confirmed by the court, and that the title to this land is vested in them, in compliance with the confirmation of the sale to the purchasers. [Now this would give the plaintiffs here a-good title to the land, if there is nothing disclosed in the evidence before you which satisfies you that there are such irregularities or fraud in the. making of this sale to these parties as would avoid it. The question will be for you to determine upon the testimony.]</p> <p>“ The plaintiffs in this case claim that the irregularity spoken of here by the defendants, in the petitions and orders presented to and granted by the court, is not a matter to be inquired into by this court, the remedy being an appeal to the Supreme Court.</p> <p>“ Upon that point we will instruct you when we come to charge you on the points submitted to the court by counsel. It is claimed on part of the defence, that Judge Potts was the counsel for the administrator, and of this estate. [It is also claimed on part of the defence here, for the purpose of showing fraud in this transaction, that the settlement of this estate was not done in such a manner as was required by law, and, therefore, they infer that it was a fraudulent transaction on the part of Heyer, the administrator, and these purchasers. You will determine that question.] They claim [that after Heyer was appointed no inventory was made of the personal effects of the deceased.] The Act of Assembly requires that within thirty days the administrator shall go upon the premises and make an appraisement, by at least two suitable persons, under oath, of all the personal effects or estate of 'the deceased, taking into account any notes, bonds, book accounts, money, or anything of this kind that may belong to or may be coming to the decedent’s estate, and also to give notice to all creditors to present their claims, duly probated or sworn to, for settlement. [They claim that this was not done, and that this is an element in this case to show fraud. You have heard the testimony of the register and recorder in this respect; and he testifies to you that there was no account filed, no inventory, nothing in the ■papers or on record showing that an inventory was ever filed in this estate.]</p> <p>[“ The defence claims further that the administrator acted wrongly in exposing any of this real estate to sale, for the reason that it was not necessary; that Mr. Harshberger, the decedent, in his will designed and intended that there should be none of the real estate sold; that he contemplated that there was sufficient upon the premises to satisfy what debts he owed, and pay his funeral expenses ; that this is set forth in the will, and argues that this is an element to prove that the estate was not settled as it should have been, and consequently there was collusion and fraud between the purchasers and the administrator at this sale. They further claim that Judge Potts was' the attorney for the estate and for the administrator, and it became him, as attorney, to see that the estate was properly administered, as much so as it was the duty of the administrator. They say that there was no necessity for selling this land to pay these debts; that all the debts shown amount to only one hundred and six or one hundred and sixteen dollars, and that they could have been, by a proper administration of .this estate, paid without selling this property. This is a question for you, under all the evidence that is offered, both on the part of the defence to prove fraud and collusion, and on part of the purchasers, and you must detennine whether it amounted to sufficient in your judgment to enable you to say there was fraud. They also claim that there was no bond</p> <p>' filed by the administrator for the due performance of his duty and the proper distribution of the money arising from the sale of this land, and that there was no mortgage placed on record for the purchase-money of this tract of land. You recollect the testimony of Bheam and Potts, the plaintiffs, that they have paid the purchase-money. The defendants claim that the position of Mr. Potts in regard to this estate, and the manner in which it was settled, are elements showing fraud in the case, and it is for you to determine whether it existed or not. It is not denied that Potts was counsel for Heyer, the administrator; but he denies that he was counsel for the heirs. You will determine that question frpm the testimony. If he was but counsel for the administrator, it was part of his duty, at least, to use the estate properly.]</p> <p>44 The counsel for the defence calls the attention of the court to the acknowledgment of the deed. They contend that the acknowledgment before Esquire Mitchell was taken the same day that the order confirming the sale was made, and that the two could not have been done.at the same time, and that the court never confirmed the deed, neither was it acknowledged in open court. The only confirmation or acknowledgment on this deed consists in the words 4 By the court/ 'and they are in print, and would appear to have been done by the printer at the time the deed was printed. [It is for you to say whether this deed was presented to the court for confirmation and acknowledgment, and, if so, whether or not the court adopted these printed words as its acknowledgment. It is not the usual way that judges confirm or acknowledge deeds.”]</p> <p>The verdict was for the defendants. The plaintiffs took this writ, and the errors assigned were those heretofore designated.</p>

<p>Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1876, No. 229.</p> <p>This was a petition of James A. Hutchison as testamentary trustee under the will of William Wilkins, deceased, and in behalf of his wife, who was a daughter of William Wilkins and a devisee under the will of the latter, praying an inquest for the partition of certain real estate in Allegheny county, which formerly belonged to William Wilkins, and was devised by him to Hutchison in trust, as appears below.</p> <p>Mr. Wilkins died June 27th 1865. By his will, after devising his mansion house and its appurtenances to his wife for life, he provided: “After the death of my wife, I devise * * * my Homewood residence to my four daughters, Maria D. Sanders, Catherine H. Hutchison, Sophia B. Carr, and Henrietta C. Wilkins, their heirs and assigns as tenants in common, share and share alike; but as it is my desire, if possible, that the same above described piece of property, embracing my mansion house, shall not pass out of my family, if any of them can make satisfactory arrangements for retaining the same, I further will and direct that after the death of my wife, the said piece of property be appraised by persons mutually chosen by such of my daughters as may survive my wife, and that if any of my daughters heretofore named, who shall survive, shall elect to take the same at such appraisement, and shall secure the payment of such appraised value to the satisfaction of the other said daughters, and then the child so electing to take the said property, shall have, hold and enjoy the same to the only use, benefit and behoof of herself, her heirs and assigns for ever; and that my said daughters shall have the privilege of making such election, in the order in which their names are above mentioned. And further, that the money and product from the execution of this arrangement shall pass into and become part of the common fund for distribution amongst the four daughters and heirs named as legatees herein.</p> <p>“ All the rest of my lands, tenements and hereditaments, situate in Wilkins and Peebles townships, Allegheny county, subj.ect to the bequests and provisions herein made, I give and devise to my son-in-law, James A. Hutchison, his heirs and assigns, for the purposes, trusts and conditions hereinafter mentioned, and for no other purpose; that is to say, he shall take the said property into his possession and charge, and at his option either rent the same upon such terms as he may conceive conducive to the interests of the trusts with which he is hereby invested, or make sale of the same for such prices, upon such terms, and upon such securities as he may deem safe, and execute such contracts and deeds in fee simple or otherwise, as may be necessary to secure titles to the purchasers, according to the terms of their respective contracts; and in the sales so made, or contracts entered into, the said purchasers shall not be bound to see to the application of the purchase-money. And in further .trust, that the said James A. Hutchison, upon the receipt of the rents or purchase-money, shall pay over the same to my daughters, Maria D. Sanders, Catherine H. Hutchison, Sophia B. Carr and Henrietta C. Wilkins, their heirs and assigns, in equal proportions, that is to say, one-fourth to each of my said daughters; or shall either of them request it, invest her proportion of the money so received in such securities as she may direct, and in such purchases as either of them may direct and be desirous of making. It being my intention by this clause of my devise that my said trustee shall hold the property for the uses and objects mentioned, with full power to sell and dispose of the same as occasion may offer, so that a partition of the property may become unnecessary. I presume the harmony and good'will that must prevail amongst all, will render needless a resort to compulsory and judicial proceedings. * * *</p> <p>“ The common fund for distribution amongst my four daughters, under this testament, will consist of the sales of my real estate in Wilkins and Peebles townships, of the sale and transfer in either way, as is herein specially provided for, either before or after the death of my wife, but not intended in any way to impair the bequests to her of the mansion house and the portions of ground annexed to it, of bonds, mortgages, debts and shares of stocks, or any other property that may be collected. * * * In case no election of that, property [the mansion house] should be made by any of my daughters, then, after the death of my wife, the same property shall go into the possession, charge and trust with the other estate, to be held and managed in like trust as is hereinbefore confided to him, James A. Hutchison, in the character of my trustee, as hereinbefore mentioned.”</p> <p>The testator further devised certain real estate in the city of Pittsburgh to his daughters directly, and without the intervention of a trustee, and finally provided as follows:—</p> <p>“ I authorize my executor, hereinafter named, immediately after my decease, to take possession of all my estate, not herein specifically devised, and exercise such acts of ownership over the same as may be necessary for the security of the trusts with which he is invested, and for the general benefit of the parties interested in these, my devises ; and I direct that he shall not be held responsisible for any investment he may think proper to make in relation to my estate, he using his best discretion therein.>!</p> <p>Part of the lands in “ Wilkins and Peebles townships ” were sold by the trustee, but about 392 acres remained unsold at the time this petition was presented, and constituted the lands of which partition was prayed.</p> <p>Maria D. Sanders demurred to the petition as “ not sufficient in law to entitle the petitioner to have partition made of the real estate of the said William Wilkins the court below made a decree pro forma sustaining the demurrer and dismissing the petition. Hutchison appealed from this decree, and assigned for error the dismissing of the petition.</p>

<p>The mortgage in suit contained a clause providing that in case default should be made in the payment of any of the instalments of principal, for the period of thirty days after they become due, then the whole principal was to become forthwith payable. Plaintiff in scire facias averred that instalment due December 23d 1875 was unpaid, and claimed the whole amount of mortgage. Defendant, in his affidavit of defence, set forth that the mortgage was for balance of unpaid purchase-money of land, sold by order of Orphans’ Court, at which sale it was announced that the purchaser would take title discharged from the lien of mortgage of Bridge; that on July 31st 1875, Bridge sued out a writ of scire facias, and said proceeding was pending December 23d 1875, when first instalment was due, and continued pending until July 17th 1876, when discontinued, and that when informed of discontinuance, defendant had tendered amount of instalment then due which was refused. Held (reversing the court below), that this was a good defence, and that pending these proceedings, defendant was not bound to pay the first instalment.</p>

<p>Error to tbe Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1876, No. 197.</p> <p>This was an application by the Commonwealth, on the relation of J. 0. McCutcheon, for a quo warranto, requiring M. D. Hays and others to show by what warrant they exercised the offices of President and Directors of the Pittsburgh and Castle Shannon Railroad Company, and excluded the relator from the office of director.</p> <p>The railroad company was incorporated September 21st 1871, under the provisions of the Act of 4th of April 1868 (Pamph. L. 62), and a special act approved the 21st of April 1872. On the 15th of February 1876, a president and board of directors were elected. It appeared that at this election some of the stockholders claimed the right to cast the whole number of their votes for one candidate, or to distribute them upon two or more, conformably to the following provision of section 4, article 16, of the new constitution : “ In all elections for directors or managers of a corporation, each member or shareholder may cast the whole number of his votes for one candidate, or distribute them upon two or more candidates, as he may prefer.”</p> <p>At this election one of the candidates for director was the r.elator, who alleged that he had received 5188 single votes, each representing one share of stock, and 19,359 votes cast upon the cumulative system provided for in the above section of the constitution, and that James McQuiston, voted for at the same time, and who was returned elected, had only received 6660 votes, of which 500 were cast for him upon the cumulative system, and 6163 by single votes, one for each share of stock, and claiming therefore that the relator was elected. McQuiston, it appeared, had received the smallest number of votes of those declared elected.</p> <p>Upon a petition setting forth the foregoing facts, the quo warranto issued, and the respondents in their answer averred that at said election no votes cast upon the cumulative plan had been received by the tellers, although some had been offered; that the election was conducted under the following provision of the charter of the company: “ At all general meetings or elections by the stockholders, each share of stock shall entitle the holder thereof to one vote, and each ballot shall have endorsed thereon the number of shares thereby represented;” that the election on the 15th of February was a general election and regulated by said provision; that the corporation was in existence prior to the adoption of the new constitution, and had not in any way accepted the benefits of said constitution, or received or accepted the benefits of any legislation by a general or special law since its adoption, nor has the legislature in any manner changed the provisions of its charter, and that therefore section 4 of article 16 of said constitution did not apply to said corporation, or authorize any stockholder to vote otherwise than provided for in the above-mentioned provision of the charter.</p> <p>To this answer the Commonwealth demurred, and after argument the court entered judgment upon the demurrer, ousting McQuiston and declaring MeCutcheon duly elected a director of the company.</p> <p>This action of the court was assigned for error.</p>

2, of Allegheny county: Of October and November Term 1876, No. 154. This was the appeal of Schmidt & Friday, from a decree of the court disallowing attorney’s commissions. The proceedings were these:— Schmidt & Friday, who were the holders of a judgment note of Marker Rush for $6000, filed the same in the office of the prothonotary, and he, at their instance, entered judgment thereon in the following form:— “D. S. B. $6000, interest from May 13th 1875.

<p>Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1876, No. 268.</p> <p>Thomas S. Clarke made a will dated May 30th 1867) and died October 19th 1867.</p> <p>By article 6 of this will he directed that his executors should hold in trust for the sole use and benefit of his grandchildren certain stocks. .</p> <p>He,designated by name each of his grandchildren then living, and provided for each one hundred shares of stock of the Pennsylvania Railroad Oo. and one hundred shares of stock of the Union Railroad and Transportation Oo.</p> <p>He then provided as follows</p> <p>“ Sect. 2. And further, it is my will, and I do hereby order and direct, that the executors or trustees aforesaid, <3r the survivor or survivors of them, shall provide or procure, out of my residuary estate, for each and every child that may be born of my said son, Charles J. Clarke, and my daughter, Agnes S. Kennedy, after the date of this, my last will and testament, and before the noon of the 4th day of April 1883, stocks of the same amount and value (viz., $10,000) as those herein bequeathed for the use and benefit of the grandchildren above-named.</p> <p>“ Sect. 3. And further, it is my will, arid I do hereby order and direct, that my said executors, or the survivor or survivors of them, shall have full power and authority, at any time, and at all times, to change or convert any or all of said before-mentioned stocks into other stocks, or into other securities, which they may consider good or safe, whenever they may deem the said change or conversion to be expedient, and for the best interests of my said grandchildren, and the said executors are hereby directed to invest the dividends or profits arising from the said stocks or securities, in securities of the United States, or of the state of Pennsylvania, at the expiration of every six months, or within a reasonable time after receiving the same, for the use and benefit of my said grandchildren, and that the stocks or other securities, together with the accrued dividends which may be received, shall be delivered by the said executors or trustees to each of my said grandchildren who may be living at the time of my death, or who may be born of my said son and daughter before the 4th day of April 1883, as each and every of them respectively shall arrive at the age of twenty-one years, as hereinbefore directed. * * * It is further my will that if any of my grandchildren shall die before arriving at .the age of twenty-one years without leaving lawful issue, the shares of stocks or securities, with accrued profits, bequeathed herein to such deceased, shall be equally divided among the survivors of said grandchildren.”</p> <p>Charles J. Clarke, William Thaw and William M. Hersh were named as executors in the will.</p> <p>Several children had been born to Charles J. Clarke and to Agnes S. Kennedy since the testator’s death. For each of these children, except the last, the executors procured the same number of shares of the same stocks as designated by.the testator in his bequest to his living grandchildren.</p> <p>Preceding the birth of the last child, James King Clarke, the Union Railroad and Transportation Company was dissolved, and its affairs were at the time of this proceeding in process of liquidation.</p> <p>Its stock, however, had a known value, and two of the executors, Charles J. Clarke and William M. Hersh, contended that under the provisions of the will in question they were bound to provide for this last born child the equivalent of one hundred shares of Union Line stock, with one hundred shares of Pennsylvania Railroad stock- or its equivalent.</p> <p>Mr. Thaw, the other executor, however, contended that the child was entitled only to $10,000 in stocks.</p> <p>To arrange this dispute, therefore, an amicable action was commenced, wherein Clarke and Hersh, two of the executors, petitioned the court below to put a construction upon the terms of the will, whereupon the court (Hawkins, J.) delivered the following opinion: — •</p> <p>“ The intention of Thomas S. Clarke, in the 2d and 3d sections, article 6th of his will, evidently was that his trustees should invest the sum of $10,000 in first-class stocks, to be selected by them.</p> <p>“ The legacies given therein are general. There is no restriction as to the company in which the stock shall he procured, nor as to the number of shares. The trustees are left free to select any stocks in a certain class. The description would be answered as well by the procurement of stocks in one company as in another in that class. There are no ‘ ear-marks ’ on the given thing, but merely an indication of the class from which it shall be selected. The trustees are simply directed to procure ‘stocks,’ without any specifications of the kind. To make a legacy specific, a clear intention to do so must be manifested by the testator. The thing given must be so marked as to be susceptible of identification. This is wanting in the present instance : Roper on Leg. 193 ; Blackstone v. Black-, stone, 3 Watts 335.</p> <p>“ The limitation of the power of the trustees is in the amount to be invested. They are directed to ‘ procure * * * stocks of the same amount and value (viz., $10,000) as those ’ bequeathed to grandchildren in esse at the date of the will. ' It seems to have been the object of the testator to equalize, as far as possible, the legacies given his grandchildren. He placed those of his grandchildren living at the date of the will on an exact equality. He gave them each the same number of shares in the same companies. To those who might thereafter be born, he gave ‘ stocks of the same amount and value.’ What amount and value ? The testator has fixed it at $10,000, for the purpose of equalization. It was entirely competent for him to put any value he chose upon his property, with this view. It was the only mode indeed in which he could accomplish his object. Stocks necessarily fluctuate in value. Today they may be worth par; to-morrow double in value, and the next day be worthless. Within the time limited by this testator, years must elapse and great changes in the values of stocks and in the condition of the companies which they represent, must necessarily take place. The testator seems to have recognised this law of change when he authorized his trustees to sell any of the stock which he gave his grandchildren, and invest the proceeds in other securities ‘ whenever they may deem the change or conversion to be expedient and for the best interests ’ of said grandchildren. Had the testator intended his trustees to procure stocks in certain companies, the change in values within the time limited for their procurement might have required the expenditure of $20,0-00 instead of $10,000, and thus exhausted the estate to the prejudice of other beneficiaries, or the stock might become worthless, and thus equalization be defeated.</p> <p>“When the will was made the stocks which the testator specifically gave to the grandchildren then living were first-class. The language used in the bequest to after-born grandchildren, and the direction to accumulate dividends, evidence an intention that the stocks to be procured for the latter shall all be of the same character, although not necessarily in the same companies, as those specifically given to the other grandchildren.</p> <p>“ The value of the gift having been fixed by the donor, can those who were appointed to carry out the intention of the testator exceed the limit fixed ? The will is their warrant. The amount specified by the testator is an appropriation of so much of his estate to the purchase of stocks, contingent upon the birth of issue, and is the law of the trust.</p> <p>“ The investment should be made in accordance with the foregoing views.”</p> <p>The court then decreed that the executors should invest in first-class stock, to be selected by them, in place of the stock of the Union Railroad and Transportation Company, the sum of $5000 for each and every child that may be born of Charles J. Clarke or of Agnes S. Kennedy, after the date when said Union Railroad and Transportation Company went into liquidation, and before noon of the 4th day of April 1883.</p> <p>From this decree this appeal was taken.</p>

<p>1. Demandant counted for dower in certain real estate against defendant and her son. At the trial, the court, against his consent, struck the name of the son from the record, refusing judgment in his favor or to allow his costs. Held, that this amendment was broken-under the Act of 4th of May 1852.</p> <p>2. It was not error to receive testimony which alleged the participation of the defendant in an attempt to corrupt the plaintiff’s witness.</p> <p>3. It was error to instruct the jury that “ when a party in a cause attempts to manufacture testimony, the jury were justified and warranted in presuming that his case is not well founded.”</p> <p>4. Plaintiff counted for dower in certain real estate of H„ deceased, who, as she alleged, was her husband. Defendant, who also claimed to be the wife of H., offered to show that she was entirely ignorant that H. had ever been married to plaintiff when she herself married him; that, at that time, he had no means of his own; that she had an estate of several thousand dollars which he appropriated and invested in the property in which dower in this suit is claimed; and that she had since earned considerable sums of money which were applied to the maintenance of H.’s family. This evidence the court rejected. Held to be error.</p> <p>5. It was not error to instruct the jury that where a husband wilfully deserted his wife or deserted her without cause, that the fact that she would not cross the sea to join him, and that she afterwards fell into immoral practices, would not bar her right to dower.</p>