Volume 83 — Pennsylvania State Reports

<p>Error to tbe Court of Common Pleas, No. 2, of Allegheny county : Of October and November Term 1875, No. 250.</p> <p>Covenant (afterwards changed to debt) by P. E. Collins and J. M. Moorehead, trading as Collins & Co., against O. W. Barnes. The material facts were these: The defendant in 1869 entered into a contract with the Connecticut Western Railroad Company to build their road. He afterwards sublet the building of mile sections, from 18 to 24, inclusive, to the plaintiffs. The contract between the plaintiffs and the defendant was the same precisely as that between the defendant and the railroad company. It was agreed between them that estimates of the work should be made by the division engineer, and upon these being certified by the chief engineer, eighty-five per cent, of their amount should be paid to the plaintiffs. The remaining fifteen per cent., was to be retained till the completion of the work. The contract further provided that the decision of the chief engineer should be final and conclusive in any dispute which might arise between the parties to the agreement. Monthly estimates were furnished to Collins & Co., and payments made on them under the contract till December 1870, Avhen a new division engineer revised the estimates of his predecessor, and cut them down by changing the classification of the work. This brought Collins & Co. in debt to Barnes. After this no more monthly estimates were furnished to the plaintiffs. Barnes, however, told the plaintiffs to go on with their work and finish it, and that the company had no right to change the estimates, but would be bound by the first estimates. Barnes further assured them that he would not submit to the change, but would aid the plaintiffs in inducing the chief engineer to replace the first estimates. The plaintiffs applied to the chief engineer, but he told them he had nothing to do with them, as the company had contracted with Barnes, and they must look to him. The plaintiffs went on with their work until February, when their property was attached for a debt. Barnes then suggested that the plaintiffs should unite with him in getting one O’Hara to finish the work for their benefit, and this Avas done. After the completion of the contract, Barnes refused to make a settlement, on the ground that the first estimates had never been put back, and as things then stood the plaintiffs were indebted to him. Collins & Co. then began suit against Barnes by attachment against the railroad company in Connecticut; Avhereupon Barnes came to them and told them he had refused to be bound by the chief engineer’s estimates, and had brought suit in New York against the company to recover, among other things, for the amount due on the work on the plaintiffs’ sections. It Avas then agreed between them that Collins & Co. should procure the necessary witnesses in the suit in NeAV York to prove the amount of work done on their sections, and that Barnes, upon a settleinent with the railroad company, should pay Collins & Co. the amount received for the work done by them. The attachment in Connecticut Avas alloAved to rest. Collins & Co. assisted Barnes in his action in New York, in which Barnes sought to recover over .$38,000 for Avork done on the plaintiffs’ sections. On this point the evidence Avas contradictory, Barnes testifying that he had not recovered anything on the plaintiffs’ sections. Barnes settled his case and received a large sum from the railroad company. He then refused to come to a settlement with Collins & Co., and this action was brought.</p> <p>The original narr. was in covenant; at the trial a narr. in debt was filed, and the plaintiffs, in addition to a large mass of testimony as to their performance of the old contract and the above matters, gave evidence tending to show, that after the making of the contract it was agreed between the parties to waive that clause- in it which made the chief engineer’s decision in all disputes final, and also that the chief engineer refused to act in the matter ; also,.to show that Barnes agreed with the plaintiffs that if they would stop their proceedings in Connecticut, and help him in his suit in New York against the railroad company, he would pay them all he recovered from the company for the work done on their sections.</p> <p>The plaintiffs asked the court to charge as follows: “If the jury should believe that, after the work was all done, plaintiffs and defendant agreed that if plaintiffs would not prosecute their action, then pending in Connecticut against the defendant, and would aid him (defendant) in his suit, then pending against the railroad company, and would assist him in proving the work done on plaintiffs’ sections, he, the defendant, would give them, the plaintiffs, such sum as he should receive from the said railroad company on account of plaintiffs’ sections, and that the plaintiffs performed their part of the said agreement, then the plaintiffs are entitled to recover from the defendant what he (defendant) received from the railroad company on account af the said sections of plaintiffs.”</p> <p>The court (Kirkpatrick, J.,) refused so to charge, and directed a verdict for the defendant.</p> <p>After verdict and judgment for the defendant, the plaintiffs below took this writ of error. The material assignments of error were to the charge of the court and the answer to the above point.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, Nos. 251 and 252.</p> <p>These were actions on the ease, brought, respectively, by Mary A. Craig and Harriet Houston, stockholders, against David Gregg and others, directors of the Security Trust Company, to recover the amount they had paid in on the stock of the company, which they alleged was rendered worthless by the negligence of said directors.</p> <p>The company was incorporated under the provisions of the Act of April 12th 1866 and its supplements, and did a banking business in the city of Pittsburgh, from January 1872 to September 1873, when it suspended and made an assignment for the benefit of creditors. An investigation disclosed the fact that the entire capital stock of the company had been lost, and that its assets were insufficient to pay its creditors, and these actions were brought by plaintiffs to recover damages for the losses they had sustained, as they alleged, through the negligence of the directors in the discharge of their duties.</p> <p>At the trial, the plaintiffs gave evidence to show that James T. Brady, of the firm of James T. Brady & Co., who was a director and vice president of the company, was the chief instrument in organizing the company and obtaining-subscriptions to its stock; that said Brady was permitted by defendants to assume entire control of the management of its affairs, and had, with their knowledge, circulated printed circulars, falsely representing that certain responsible parties were trustees of said company, and that although defendants knew that said Brady was engaged in hazardous speculative enterprises, they had intrusted with him on deposit the large sum of $168,000, without taking any security therefor, and which, through the failure of Brady & Co., was totally lost, thereby causing the suspension of the Trust Company.</p> <p>When the plaintiffs’ evidence was all in, the defendants moved for nonsuits, on the ground, inter alia, that plaintiffs, as stockholders, could not maintain separate actions against the directors for the redress of damages sustained by them in common with the other stockholders, and the court granted the nonsuits, with leave to move the court in banc to take them off.</p> <p>The court in banc refused to take off the nonsuits, White, J., in an opinion, saying,</p> <p>“ But there is another ground on which I think the nonsuit was proper. This is a common-law action for negligence against the directors of the bank. The negligence charged is a neglect of duty by which the entire capital of the company was lost and the institution became insolvent. The plaintiff charges no act of negligence by which she was specially injured. The acts charged affect alike the defendants and all other stockholders, and all the creditors of the institution. The principle which' would allow a common-law action against the directors by each stockholder for a total loss of his stock, would sustain such an action for a partial loss or for a depreciation in the market price. If such is the law, who will act as a director ?</p> <p>“ But further, the creditors of the bank have a prior claim to the stockholders; for the stockholders elected the directors as their agents. If those agents have lost the funds of the stockholders, and also of innocent parties, intrusted with them, as the agents of the stockholders, these innocent parties should be paid first. Yet, if each stockholder can maintain his individual action against the directors, a few of them might bankrupt the directors and leave nothing for the creditors or the other stockholders.</p> <p>“ The only way I conceive to do justice in such a case and work out the equities of the various parties, would be by a bill in equity, or a common-law action in the name of the corporation. The fraudulent acts of Brady might possibly have justified a verdict against him; but the plaintiff’s counsel declined to take that, frankly admitting that a verdict against him was not what he wanted. As Brady was worth nothing, this verdict would be fruitless.”</p> <p>This writ was taken by plaintiffs, who assigned the judgment of the court and the refusal to strike off the nonsuits as error.</p>

<p>Error to the Court of Common, Pleas of Mrie county: Of October and November Term 1875, No 134.</p> <p>Assumpsit by Leopold Hodapp against the Lake Shore and Michigan Southern Railway Company, to recover the value of a chest or box delivered to the defendant as a common carrier, which the plaintiff alleged was lost by reason of- a want of ordinary care on the part of defendant.</p> <p>On the trial it appeared that the wife of plaintiff, about the 10th of September 1870, took the box to an a'gent of the defendant in New York, and delivered it to him to be forwarded to Erie, Pennsylvania, giving to him, for the purpose of marking the box, the name and address “Leopold Hodapp, Erie, Pennsylvania.”. It being after the hours for shipping, the agent ivas unable to' give her a receipt, saying' that he would give her one in the morning if she would call, which she was prevented from doing by her immediate departure for Erie to join her husband.</p> <p>The agent, or whoever marked the box, marked it “Leopold Hotelfa, Erie, Pennsylvania.” The way bill from New York to Buffalo, ivas marked “ Leopold & H.” Avhich at Buffalo was changed by the agent to make it correspond Ayith the marks on the box to “Leopold Hotelfa.”</p> <p>The box arrived in due time at Erie, and the plaintiff applied for it in his own name at the freight depot of the company, but no box with that name thereon could be found. The box remained at .the depot of the company for about two months, when it Avas delivered by the agent to Christian Leopold, Avho AAras then keeping a hotel in Erie, at which he Avas in the habit of receiving immigrants and their baggage, the officers' of the company testifying that not being able to find any owner by the mark on the box, they had concluded that the mark thereon meant “ Leopold’s Hotel,” and was sent there to aAvait the arrival of some party who Avas to come to the hotel. Leopold, it appeared, kept the- box unopened, until June 1871, when it Avas opened in Titusville, to which place Leopold had moved, and the contents, Avhich he alleged' were of no value, thrown away.</p> <p>Hodapp made repeated inquiries for his box at the freight depot of the company, and subsequently Mrs. Hodapp, having discovered at the office of the company in NeAV York, that the box had been marked “ Leopold Hotelfa,” Iiodapp, upon application in that name for the box, was informed that it had been delivered as above to Christian Leopold.</p> <p>The plaintiff alleged that the box contained clothing and tools to' the value of $250.</p> <p>At the trial, Vincent, P. J., intér alia, charged the jury:—</p> <p>“It is not contended that the defendant is liable as a common carrier, or for extreme care, but only as a warehouseman, or for ordinary caire.</p> <p>“The defendant contends that they did use ordinary care, and that they were justified in delivering this box to Leopold, he being at that time in the habit of receiving and caring for such baggage, and a responsible man, and that having kept it so long as it was kept in the depot, it was not in any way negligent in delivering it to Leopold on such an address as was upon it.</p> <p>“[This is a question of ordinary care, and taking all the circumstances together we are not clear upon this point, but we will for the purpose of this suit, charge you that the delivery to the wrong person was a want of ordinary care and at the risk of the defendant.”]</p> <p>The verdict was for the plaintiff for $150, and judgment was entered thereon. The defendant took this writ, among other errors, assigning the foregoing portion of the charge in brackets.</p>

<p>1. To take a parol gift or sale of land between father and son out of the operation of the Statute of Frauds the evidence thereof must be direct, express and unambiguous, its terms must be clearly defined, and all the acts necessary to its validity must have special reference to it and nothing else.</p> <p>2. Where title to land is asserted under an alleged parol purchase, to take the contract out of the operation of the Statute of Frauds it must be supported by adequate evidence of an existing consideration, an adjustment of the boundaries of the land, and of the change of possession which the law requires.</p>

<p>Error to the Court of Common Pleas of Armstrong county: Of October and November Term 1876, No. 140.</p>

170. This was an action on the case, brought in the name of Robert Morris, for the use of F. J. Rupp, against James A. McCulloch, to recover the amount of a judgment entered in the Common Pleas of Armstrong county. The facts were these: On the 21st of May 1857, Robert Morris sold to John Moyer certain real -estate in Freeport, and took from Moyer a judgment-bond as security for the unpaid purchase-money.

<p>1. The widow of McGarity, who died before the Act of 14th April 1851, took out letters of administration on his estate, and about fourteen years after her husband’s death had his real estate appraised and set apart to her as widow under that act: Held, in ejectment on her title, that the Orphans’ Court had no jurisdiction, and that she took no title.</p> <p>. 2. In ejectment brought by the widow upon her title acquired under these proaeedings in the Orphans’ Court, the court below charged that although the proceedings in the Orphans’ Court had been instituted under the Act of 14th April 1851, yet that might have been merely a clerical error and they might be considered as held under the Act of 26th April 1850, and therefore if the jury found that McGarity was insolvent when he died, they should find for the plaintiff: Held, to be error, and that the widow’s title must depend entirely upon the act under which the proceedings to acquire it were instituted.</p>

1, of Allegheny county : Of October and November Term 1876, No. 233. Scire facias upon a mortgage by George Duncan, president of the Farmers’ and Mechanics’ Bank of East Birmingham, in trust for said bank, against Oliveretta Wharton.

1, of Allegheny county: Of October and November Term 1876, No. 198. In Equity. This appeal was by Caroline Bloomer from the decree of the court, removing her from the management of a trust, declared, by herself in favor of Cornelia E. Sproul and her children.

1, of Allegheny county: Of October and November Term 1876, No. 239. Assumpsit against Robert Woods as endorser of three promissory-notes. In 1869 and 1870 Robert Woods, the defendant below, endorsed three accommodation notes of R. L. McAboy, to the amount of $7000, which notes were discounted by the Peoples’ National Bank of Pittsburgh, the plaintiff below. In March 1870, the bank loaned McAboy $5055 upon his own note unendorsed.

<p>Appeal from the decree of the Orphans’ Court of Allegheny county, No. 132: Of October and November Term 1876.</p> <p>This was the appeal of Mary Young from the decree of the Orphans’ Court of Allegheny county, distributing the balance in the hands of Graham Scott, the executor under the wills of Andrew Beggs, deceased, and his wife, Alcy Beggs, deceased.</p> <p>■ Andrew Beggs died in 1853, leaving a will which contained the following clause:—</p> <p>“ I will the residue of my estate, real, personal and mixed, to my beloved wife, Alcy, for and during her life; and, further, I will that at her decease, such moneys or property as she may possess be equally divided between her relations and mine, or such of them as she may believe most worthy.”</p> <p>Graham Scott and Alcy Beggs, the wife of testator, were named as executor and executrix in this will.</p> <p>Alcy Beggs survived her husband and died twenty-two years after his death, leaving a will, which, after a recital of the foregoing provision of her deceased husband’s will, gave the following directions :—</p> <p>“ I will, devise and bequeath whatever may remain of my estate, or that willed me by my late husband, undisposed of at my decease, real, personal or mixed, wherever found, be converted into money as soon as convenient after my death, and after paying my debts and funeral expenses, as before mentioned, and the legacies mentioned in my late husband’s will, that whatsoever may remain be divided equally between my late husband’s relations and mine, in the following manner, viz. : One half I give and bequeath unto the children of my two sisters, Delilah Cracraft and Rachael Hull, viz. : Mary Young, Zedock Cracraft, Rachael Dunn and Hannah Young, children of Delilah Cracraft, and Maria Hull and Delilah Hull, children of Rachael Hull, each share and share alike, if they are all alive and can be found at my decease, and if they are dead or sbmüd die before me, then to their children, if they have any, but if they have none, to be divided equally between the others. The other half I give and bequeath unto the relations of my late husband, to be divided among them as follows, viz.: To my brother-in-law, Thomas Beggs, one-tenth. To my sister-in-law, Mary Ann Wagoner, one-tentli. To Clara, daughter of Joseph Beggs, deceased, one-tenth. To Maria, daughter of Joseph Beggs, deceased, one-fifteenth. To Ann Eliza, daughter of Joseph Beggs, deceased, one-fifteenth. To John, son of Joseph Beggs, deceased, one-thirtieth. To Rosanna Brown (my niece), one-thirtieth. To John Brown (my nephew), one-thirtieth. To Andrew Brown (my nephew), one-thirtieth. To my nephew, Andrew Beggs, one-tenth. To my nephew, R. J. Beggs, one-fifteenth. To my nephew, Reuben Beggs, one-fifteenth. To Martha, widow of my nephew, Basle W. Beggs, one-fifteenth. To Lewis Leon, Leonora, Mary, Sarah, Alcy and Margaret, children of my nephew, Andrew Beggs, one-tenth equally divided between them. To my grand-nephew, Andrew, son of John Beggs, one-thirtieth. Should any of the above die before me, their share shall go to their children or next of kin ; and, in order to enable my executors hereinafter named, to carry out the provisions of this will, I do hereby authorize and empower them to sell at public or private sale, as they may deem for the best advantage, all my property belonging to my husband’s estate, wherever found, real, personal or mixed.”</p> <p>Graham Scott, who was executor under the will of both decedents, and Andrew Young, who was executor under the will of Alcy Beggs, applied to the Orphans’ Court for the sale of the real estate of decedents for the purpose of distribution under their wills, and upon the court ruling that Mrs. Beggs, in directing a conversion of the real estate, had not exceeded her authority, and that her executors had power to sell without further directions, the real estate was sold and Graham Scott subsequently filed his first account, admitting a balance of $6366.21, which constituted the fund for distribution in the case.</p> <p>■ In making distribution of this balance the Orphans’ Court decided, that the fund should be paid in accordance with a schedule attached, which gave to each of the twenty-one parties named in the will of Alcy Beggs $244.01, being an equal share of the whole balance.</p> <p>In an opinion the court said: “ That Alcy Beggs was invested with a power of selection by the will of Andrew Beggs, deceased, is beyond question. She was directed to divide the estate of her testator amongst £ such’ of his and her £ relations’ as she might deem most worthy. The use of the word £ such’ implied a power of selection: Huntley v. Gregson, 1 Term R. 432; Spring v. Biles, 2d (note). It follows that the beneficiaries named in the will of Alcy Beggs, deceased, were well appointed, whether within or without the statute of distribution. In what shares or proportions are these beneficiaries to stand ? Andrew Beggs directed that his estate should ‘ be equally divided’ between ‘ such of his wife’s and his relations as she might deem most worthy.’ Whatever of difficulty there may be, appears on the face of the will, and may be solved by the application of the ordinary rules of construction in such cases: Best v. Hammond, 5 P. F. Smith 412. How then shall division be made ? The authorities agree that where a testator designates the objects of his bequest or devise by their relationship to living ancestors, such legatees or devisees take not by representation, but immediately of the testator and per capita. The reference to living ancestors is merely descriptive of the objects of bounty, and excludes the per stirpes rule: Witmer v. Ebersole, 5 Barr 458.</p> <p>“ The line of argument adopted in the case of McNeilledge v. Galbraith, 8 S. & R. 43, is peculiarly appropriate to the present case. There as here the testator had given his estate to his wife for life, and directed that at her decease said estate should £ be divided between her and my poor relations equally.’ The same question was raised and discussed there as here with respect to the proper mode of distribution. The bequest was construed as though the word £ poor’ had not been used, so that the two cases, so far as the question of distribution is concerned, are in quatuor pedibus with each other.</p> <p>££ So far, therefore, as the distribution made by Mrs. Beggs affects the estate of Andrew Beggs, deceased, she has exceeded her powers. The division should have been made equally between the appointees. With this exception the power with which Mrs. Beggs was invested was well executed. It is well settled that the execution of a power may be good as to part: Hegarty’s Appeal, 25 P. F. Smith 503 ; Bristow v. Warde, 2 Vesey 336. And the court will correct that in which the donee has failed.</p> <p>“ The fund in hands of the accountant, being proceeds of the sale of the real estate of Andrew Beggs, deceased, will therefore be distributed amongst the appointees named in the will of Alcy Beggs, deceased, per capita.”</p> <p>From this decision Mary Young appealed and assigned for error this decree of the court.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November -Term 1876, No. 108.</p> <p>Case by William Kroegher against the Birmingham Fire Insurance Company to recover the amount of a policy of insurance on a stock of merchandise contained in a store at the Enon Coal Company’s works.</p> <p>The store was an ordinary country store kept for the purpose of supplying the miners at the coal works.</p> <p>The first condition of the policy contained this provision :—</p> <p>“ If the assured shall keep or have in any place or premises where this policy may apply, petroleum, naphtha, benzine, benzole, gasoline, benzine-varnish or any product, in whole or in part, of either; or gunpowder, fireworks, nitro-glycerine, phosphorus, saltpetre, nitrate of soda; or keep, have or use camphene, spirit gas, or any burning fluid or chemical oils, without written permission in this policy, then, and in every such case, this policy shall be void.”</p> <p>At the trial it was shown that plaintiff had kept a barrel of petroleum at a time for sale, as well as for lighting purposes and the defendant claimed that the policy was thereby avoided.</p> <p>The plaintiff contended:—</p> <p>1. That by the stipulation in this policy on “ stock of merchandise contained in store,” it must be intended that there was included whatever it was usual and customary to have in a stock of merchandise in such a store, and if the jury believe from the evidence that it is usual and customary to have and keep as part of the stock of merchandise in such stores as the plaintiff’s a supply of carbon oil such as the plaintiff had in his stock, then the plaintiff can recover, notwithstanding the terms of the first condition.</p> <p>2. That it having been shown that the insurance was effected with full knowledge by the agent of the company that carbon oil was kept and had by the plaintiff on the premises insured, as a part of his ordinary stock of goods, the plaintiff can recover, notwithstanding said condition, notice to the agent being notice to the company.</p> <p>The court, Ewing, P. J., sustained both of these positions of the plaintiff in their instruction to the jury.</p> <p>The verdict was for the plaintiff and the company took this writ, iivter alia, assigning this action of the court for error.</p>

<p>1. Art. 16, sect. 8 of the Constitution secures an appeal and a trial by a jury for damages wherever private property is taken by a municipal corporation for public use, and the Act of Assembly of 13th June 1874 was intended to furnish the remedy secured to property owners, by this provision of the Constitution, and gave an appeal to the Court of Common Pleas where no sufficient regulation for a trial by jury already existed.</p> <p>2. This constitutional provision applies to the assessment of benefits as well as of damages, by a jury.</p> <p>3. Where on appeal to the Quarter Sessions of Allegheny county, the court appointed viewers to assess damages to P. by the opening of a street through his land, and, upon exception to their report by P., the report was set aside and a new view ordered, and P. appeared before the new viewers and pressed his claim for damages, and within thirty days after the filing of the new report demanded a jury trial in the Common Pleas: Held (reversing the court below), that under art. 16, sect. 8, of the Constitution (carried into effect by the Act of 13th June 1874), P. was entitled to a trial by a jury: Held, also, that P. had not waived his constitutional right by permitting the case to go before the last board of viewers without objections on hjs part.</p>

1, of Allegheny county : Of October and November Term 1876, No 235. The question involved was the same as that raised in Pusey’s Appeal, antea 67. The facts were these : In 1873 the councils of Pittsburgh passed an ordinance providing for the opening of a part of Forty-seventh street in Pittsburgh. The report of the board of viewers to assess the damages for the opening of the street, was confirmed by the councils on October 1st 1874.

<p>Certiorari to the Court of Quarter Sessions of Allegheny county: No. 255, of October and November Term 1876.</p> <p>The proceedings in the court below were to obtain the division of Plum township in the county of Allegheny.</p> <p>The petition of voters, citizens and residents of said township, which bore date the 8th of May 1876, represented that the said township was of large extent territorially ; that there was considerable v diversity of interest amongst its inhabitants ; that the voting-place was in a central position, and that the voters in the north end of the township had to travel from five to seven miles to reach the polls, and the petitioners therefore prayed the court to divide the township into two townships, and to form a new township out of the northern end of Plum township ; to fix a voting-place and appoint the necessary election officers for the purpose of holding the next election, and until their successors shall be elected, &c.</p> <p>On the same day the court appointed three commissioners “ to mark out and lay out said new township and suggest a name therefor, also fix the place or polls for holding elections therein, if' it is necessary and proper that such new township should be formed, and to make report to court.”</p> <p>On the 10th of June 1876 the commissioners filed their report in favor of a division, and on the 1st of July following the court made this order:—</p> <p>“It appearing to the court that the report of commissioners appointed in this case to inquire into the propriety of the division of said township, and the formation of a new township thereout, is in favor of the formation of a new township to be called ‘Ewing,’ and that the same has been filed, the court do order and direct that a vote of the qualified electors of said township of Plum be taken on the question of a division of said township, and the formation of a new township, in accordance with the report of said commissioners at the place fixed by law for holding the elections in said township on the 18th day of August 1876, said election to be governed by the several laws of this Commonwealth relative to township elections.”</p> <p>On the 21st of August 1876 the returns of the election were filed, showing 114 for the division of the township and 112 votes against.</p> <p>On the same day exceptions were filed, alleging that there were irregularities at the election, and the court was asked to set it aside.</p> <p>On the 12th of September the court overruled and dismissed the exceptions and confirmed the report of the commissioners absolutely.</p> <p>The exceptants sued out this writ of certiorari and, inter alia, assigned for error that</p> <p>“ The order of court appointing the commissioners does not direct them to inquire into the propriety of granting the prayer of the petition.”</p>

<p>Error to the Oyer and Terminer of Allegheny county: Of October and November Term 1876, No. 209.</p> <p>Indictment against William Green for the murder of Samuel Marshall at Mansfield, in Allegheny county, on September 2d 1875. The facts together with the defendant’s first point appear in the opinion of the court. The learned judge (Sterrett, P. J.) charged, inter alia, as follows:—</p> <p>“ He who takes the life of another with a deadly weapon and with a manifest design thus to use it upon him, with sufficient time to deliberate and form the conscious purpose of killing, and without any sufficient reason or cause of extenuation, is guilty of murder of the first degree.</p> <p>“ When the act is done deliberately with a deadly weapon, and is likely to be attended with dangerous consequences, the malice, requisite to murder, will be presumed; for the law infers that the natural or probable effect of any act, deliberately done, is intended by the actor. Where the killing, then, is malicious and the evidence shows a wilful, deliberate and premeditated purpose to take life, it is murder of the first degree.</p> <p>“ All murder, not of the first degree, is necessarily murder of the second degree, and includes all unlawful killing under circumstances indicating depravity of heart, and a disposition of mind, regardless of social duty, where no intention to kill exists or can reasonably be inferred. Therefore in all cases of murder, if no intention to kill can be inferred or collected from the circumstances the verdict must be murder of the second degree.</p> <p>“ Manslaughter maybe defined to bo the unlawful killing of another without malice, express or implied, which may be voluntarily done in a sudden heat of passion, or involuntarily, in the commission of an unlawful act. Voluntary manslaughter often so nearly approaches murder that it is necessary to distinguish it clearly. The difference is this : Manslaughter is never attended by legal malice or depravity of heart, that condition or frame of mind before spoken of, exhibiting wickedness of disposition, recklessness of consequences or cruelty. But being sometimes a wilful act, as the term voluntary denotes, it is necessary that the circumstances should take away every evidence of cool depravity of heart or wanton cruelty. Therefore to reduce an intentional blow, stroke or wounding, resulting in death, to voluntary manslaughter, there must be sufficient cause of provocation, and a state of rage or passion, without time to cool, placing the accused beyond the control of his reason and suddenly impelling him to the commission of the deed. If any of these be wanting — if there be provocation without passion, or passion without legal provocation, or if there be time to cool and reason has resumed its sway, the killing will be murder. But it is not every cause of provocation that is regarded as sufficient or legal. Insulting or scandalous words are not sufficient cause of provocation; nor are actual indignities to the person of a slight and trivial nature. Whenever the ' act evidences a deadly revenge, and not the mere heat of blood: whenever it is the result of a devilish disposition, and not merely the frenzy of rage, it is not manslaughter, but murder. Passion arising from adequate legal provocation is evidence of the absence of malice.”</p> <p>The jury found a verdict of guilty of murder in the first degree; After sentence of death was pronounced thereon, the defendant took this writ of error, assigning for error that the record and evidence failed to show that the ingredients necessary to constitute murder in the first degree were proved to exist, and the refusal of the court below to affirm the latter part of the defendant’s first point.</p>

<p>Error to the Court of Common Pleas of Fayette county: Of October and November Term 1876, No. 281.</p> <p>Ejectment by Catharine I. Ashman and others, against John T. and George E. Hogg, for a narrow strip of land containing about eight acres. The action was begun December 21st 1872.</p> <p>Isaac Meason, the elder, who died in 1818, by his will directed a certain farm to be divided “ by running a straight line from the river (the Youghiogheny) throughout to the back line on the hill, so as to divide the tract into two equal parts, as nearly as may be,” and gave one part to his son Isaac and the other to his daughter Mary Rogers. Immediately after his death, the devisees took possession of their respective parts of the farm. The share of Isaac Meason, Jr., was sold by the sheriff in 1885 and became afterwards vested in the defendants. The plaintiffs claimed under Mrs. Rogers. Mrs. Rogers died in 1852; her husband died September 18th 1872. The existing line between the two properties when this action was brought was marked by a fence built in 1836. There was conflicting evidence as to whether the line had ever been actually settled by agreement between the devisees of the two tracts under Meason’s will. The plaintiffs below sought to establish a new line which would increase the size of their share, and for that purpose brought this action.</p> <p>The court (Stowe, A. J.) charged that if the existing line had been actually agreed upon between the respective parties as the line of their properties, the verdict should be for the defendants; if, however, they should not find so, they should find for the plaintiffs, as the line which the plaintiffs sought to establish was the line intended by Isaac Meason’s will, and the one which might have been originally claimed under the will, had the devisees thereunder so chosen at that time.</p> <p>' Verdict for the plaintiffs and judgment. The defendants below then took this writ of error.</p>

<p>Appeal from the Court of Common Pleas of Beaver county: Of October and November Term 1876, No. 266.</p> <p>This was a bill in equity filed by Wade Wilson to restrain the Beaver Falls Water-power Company and the trustees of the Harmony Society from preventing the flow of water to his mill.</p> <p>The bill set forth the following case: Before and during the year 1834, David Townsend was the owner of a flouring mill, usually called the “ Stone Mill,” situated on the Beaver creek and supplied by water-power from that stream through the owner’s dam at New Brighton. In 1836, in the construction of the Beaver division of the Pennsylvania canal, the erection of the state dam at Bridge-water so injured the dam of the Beaver Falls Water-power Company, at Fallston, by backwater, as to make it necessary to raise the latter dam and this in turn would have been the cause of great injury to Townsend’s water-power, at New Brighton. Under these circumstances, in order to reduce the damages for which the Commonwealth would have been liable to the water-power company, an agreement was entered into between Townsend, the Beaver Falls "Water-power Company and the state canal commissioners, by which the latter agreed to furnish water-power to the Stone Mill, through a waste-wier in the canal bank, which was to be not lower than six inches below the fixed height of top water line of the canal, and of such width as to permit the passage of a sufficient quantity of water to propel the then machinery of the mill. Townsend agreed to authorize the Beaver Falls Water-power Company to raise their dam at Fallston to such height as might be necessary, and to release all damages. This agreement was fully carried out. The Stone Mill was carried on by Townsend and the successive proprietors without interruption, excepting at such times as the water was drawn from the canal for the purpose of making repairs. After the death of Townsend, the Stone Mill became vested by various conveyances in Wilson, the plaintiff below. Under an Act of Assembly of 7th March 1843, the state authorized the transfer of this part of the canal to the Erie Canal Company, subject to a proviso (by sect. 17 of the act) that that company should “be bound by all the contracts heretofore made by the Commonwealth, when the same had been made by virtue of existing laws, in the grant or lease of water privileges,” &c. The bill averred that the defendants, the water-power company, threatened to stop the supply of water to the plaintiff's mill, and prayed an injunction to restrain the defendants from such action.</p> <p>The defendants’ answer, admitting many of the averments of the bill, set forth that the privilege of using the water from the canal as a motive power had been given to Townsend by the commissioners without any consideration therefor moving from him to the Commonwealth ; that the plaintiff’s mill was not at the time of filing the answer, and had not been for many years, supplied by water through the waste-weir built by the Commonwealth, but through a passage way made by cutting down the bank of the canal to the bottom of the canal; that the mill had not been uninterruptedly used as a flour mill by its owners, but on the contrary had for some time been used as a foundry, and the original mill had been destroyed by fire and a new mill built on the same site; that the canal had long since been abandoned as such, and the property of the canal company had become vested in private persons, and that the then owners were not bound to keep the plaintiffs’ mill supplied with water from the Beaver river at a point almost a mile distant therefrom, after the canal had ceased to be used for public purposes; that it required more water-power to propel the machinery of the mill at the time the answer was filed than in 1834; that the waterpower company owned the dam at Beaver, from which the water was supplied to the canal, and that the trustees of the Harmony Society, defendants, who were also large stockholders in the waterpower company, had become the owners in fee simple of that portion of the canal lying between the stone mill and the Beaver dam; and that the water-power at the Beaver clam was greatly impaired by draining off water from it to supply the plaintiff’s mill.</p> <p>It further appeared that the change in the manner of supplying water to the plaintiff’s mill was made in 1844, at the instance of the superintendent of the canal; that the mill was destroyed by fire in 1847, but rebuilt the next year, and that, though the mill was at one time used as a foundry, there had never been an intention on the part of the owners to abandon its use as a flour mill. The canal, as such, was abandoned in 1872, and the title to this portion of it (that is, its lands, locks and appurtenances) became vested in the trustees of the Harmony Society, defendants, by a sheriff’s sale and sundry conveyances. The supply of water to the mill was flowing through the passage as it existed when this suit was begun, at the time of the purchase by the Erie Canal Company, January 1st 1845, and without interruption from 1844 to the beginning of these proceedings. It appeared that it was the intention 'of the water-power company, with the consent of the owners of the canal, to cut off the entire supply of water to the plaintiff’s mill, and that this would be the cause of great and irreparable injury to him. *</p> <p>The court below (Stowe, A. L. J.) was of opinion that the passage-way to the plaintiff’s mill, as it was changed in 1844, had been ever since then apparent and visible; that when the canal' passed into the hands of the Erie Canal Company, an inceptive right arose against that company which, in twenty years, had grown into a complete legal title by prescription, and decreed a perpetual injunction to restrain the defendants from stopping the flow of water to the plaintiff’s mill through the canal. The defendants below took this appeal.</p>

<p>Certiorari to the Orphans’ Court of Butler county: Of October and November Term 1875, Nos. 216 and 253.</p> <p>These were the appeals of Ada Y. Storey and Anna L. Adams, and Julia E. J. Boyd, from the decree of the Orphans’ Court, making distribution of the estate of Oliver David, deceased.</p> <p>Oliver David died intestate at Butler, Pennsylvania, on the 5th day of November 1871, at the advanced age of eighty-three years. His estate, valued at about $90,000, consisted entirely of government bonds and other interest-bearing securities, with the exception of a small farm in Ohio of inconsiderable value.</p> <p>A widow survived the intestate, and his heirs-at-law were ten grandchildren, the children of three daughters, who had all died during Mr. David’s lifetime.</p> <p>One of these deceased daughters married James Campbell, the issue of which marriage were six of the heirs; William O., T. Chalmers, J. Thompson, Howard J., Margaret A. and Clara B. Campbell.</p> <p>A second daughter married W. C. Adams, of whom were born Ada V. Adams, now Ada Y. Storey, and Anna Lanah Adams, two of the appellants. Lauretta Campbell, now Lauretta Thompson, and Julia E. J. Boyd, the other appellant, were children of a third daughter who was married first to William Campbell and subsequently to Henry Boyd.</p> <p>Letters of administration upon the estate of the intestate were granted to James Campbell, father of six of the grandchildren, whose relations with the intestate had been of an intimate and confidential character and who had transacted much of his business for him.</p> <p>On the same day letters of administration were granted, and previous to the granting of them, Mr. Campbell, with the written consent of all the heirs except Julia Boyd, purchased the interest of the widow in the estate for $28,467, with funds realized from the sale of government bonds then in his possession.</p> <p>This purchase was declaredly made for the benefit of the heirs-at-law and a profit of $683 was derived therefrom.</p> <p>In November 1872 the administrator filed Iris first and partial account, to which a large number of exceptions were taken on behalf of Ada Y. Storey, Anna L. Adams and Julia Boyd.</p> <p>Hon. James Bredin, now one of the judges of the Common Pleas of Butler county, was appointed by the court to examine the account, report upon the exceptions and make distribution.</p> <p>The auditor overruled all but one of the exceptions, and Hawkins, J., of the Orphans’ Court of Allegheny county, after argument, approved the auditor’s findings.</p> <p>From this decree two appeals were taken:—</p> <p>The Adams children, Mrs. Ada Y. Storey and Anna Lanah Adams, appealed, because the court decided that they had each been advanced $3500 on their shares by a farm conveyed to them in 1869 by their father, Major W. C. Adams, at the instance of Oliver David, for the consideration of $7000.</p> <p>Oliver David, in 1869, had on the records of Butler county a judgment in the penal sum of $12,000 against W. C. Adams, his son-in-law. Adams wanted it satisfied; Mr. David declined, saying he intended the judgment, which was a good lien on a valuable farm of Adams in Butler county, for the (Adams) girls. Mr. David, at or about the early part of 1869, so far carried out this idea of his as to prepare and execute an assignment of the judgment, reciting the amount of it at $7000, to J. D. McJunkin, Esq., in trust for the Adams children, specifying in the assignment that it was to be an advancement to the said Ada and Anna Lanah, and to be accounted for by them in the distribution of his estate. This paper was handed to Mr. David’s counsel, John M. Thompson, Esq., of Butler, and was fully proven by him, but not produced. ■</p> <p>Shortly afterwards, this paper and arrangement of Mr. David’s not being known to Major Adams, he (Adams) renewed his request to Mr. David to satisfy the judgment. Mr. David still refused, but offered to do so if Adams would deed the land to the girls. This at last Adams did, the consideration being the judgment. The consideration expressed in the deed was $7000, and in the body of the deed was stated to have been paid- by Oliver David for the use and benefit of Ada Y. Storey and Anna Lanah Adams, and the receipt at the foot of the deed was, “ received of the above-named Oliver David for the use of said Ada Y. Storey and Anna LanahAdams, the sum of $7000, consideration money,” &c.</p> <p>Julia Boyd appealed.</p> <p>First. Because the auditor refused to charge the accountant with a note under seal of about $5300, dated in 1842, in favor of Oliver David.</p> <p>In 1842 James Campbell bought a store from Mr. David and gave him a note for some $5000, which it appeared was never paid and of which no mention was made in the account of the administrator, and Julia Boyd excepted thereto and asked that he should be charged with the amount of the note.</p> <p>In reference to this note the auditor reported,</p> <p>“ This exception the auditor understands to refer to what the accountant designates as the ‘store’ note or note given by James Campbell to Oliver David for purchase-money of store bought from him. The note, the accountant believes, was under seal, given in 1842 or about that time; does not know how much he paid on it, but Mr. David stopped him, said he ‘ did not want any more on it;’ finally, some six years before his death and since his return to Butler, accountant spoke to him about it, and said ‘ you have my note, it is dead;’ he said, ‘yes, it is of no account,’ and gave the note to accountant, saying, ‘ you may do as you please with it,’ and accountant then burnt it. If the note was under seal, more than twenty years had elapsed since it was given and accountant swears it was dead. There is no evidence going to contradict these allegations, and the exception is, therefore, overruled.”</p> <p>Second. Because the auditor refused to charge as an advancement against Mrs. Lauretta Thompson the sum of $2000, the proceeds of a farm conveyed to her in 1843-1844, under the following circumstances : Mr. Campbell owed Mr. David and proposed giving him a farm in Middlesex township, Butler county, Pa., in payment; the farm was valued at $2000. Mrs. Lauretta Thompson was born in 1835. Her father, a brother of James Campbell, had died when she was an infant, and her mother, a daughter of Oliver David, died before the year 1843. Lauretta and her mother, after the death of Lauretta’s father, had resided with Oliver David. Lauretta’s mother on her death-bed requested Mr. James Campbell to take her and raise her in his family, which, it appears, he cheerfully did.</p> <p>When Mr. Campbell was paying Mr. David the $2000 he owed him, by the Middlesex property, Mr. David directed the deed to be made to Lauretta Campbell, saying, “ It would help to raise and educate her,” or words to that effect.</p> <p>The widow David testified that Mr. David had told her he had given Lauretta a farm (the Middlesex township farm); and shortly after Lauretta’s mother’s death also told her that he was to pay James Campbell for her raising.</p> <p>The auditor found that at that time Lauretta ivas of tender age, helpless and dependent; that Mr. David was in loco parentis, charged by law with her maintenance and education; that Mr. Campbell, who did support and educate her, might, had he concluded to have a guardian appointed, have disposed of the farm; and that so doing would have been but a discharge to that extent of Mr. David’s obligation to maintain and educate her; that the fact that the farm was preserved in tact for Lauretta until her marriage, “ was owing to Mr. Campbell’s generous treatment of his brother’s orphan child,” and the amount she received therefrom would seem to be rather a gift from Mr. Campbell than an advancement from Mr. David; and that the circumstances of the case were sufficient to overcome any legal presumption that Mr. David intended this as an advanced portion of his estate.</p> <p>Third. Because the auditor refused to charge J. Thompson Campbell with $4000 received by him in the year 1863, from Oliver David, to embark in business with, and which sum the auditor and court treated as a gift.</p> <p>• J. Thompson Campbell, then the second son of James Campbell, before his majority, had commenced clerking in a store, in Allegheny city. His business inclinations attracted the attention of his grandfather, Mr. David, who, as the testimony showed, took more interest in him than in any other of the Campbell children, probably, as Mr. James Campbell testified, because of Thompson Campbell following the same business Mr. David had, and being very devoted to business from his youth.</p> <p>lvfr. David desired to see young Thompson Campbell in business for himself, and Thompson’s father was apprised by Mr. David that he had some money for Thompson. Shortly afterwards an opportunity of Thompson’s going into a store in Allegheny city presented itself, and Mr. David was informed of it, and gave his father, for him, $4000, laying on him, Mr. James Campbell, the injunction “that he did not want any one to know it.”</p> <p>Thompson went into business with the money, and at the end of three years lost half his capital and his time. Mr. David, when told of his ill-success, said, “ Well, it’s gone ; it can’t be helped.”</p> <p>The auditor found there was nothing said at the time this money was given, to indicate that Mr. David intended it as an advanced portion, and that Mrs. Belle'Wells, a sister of Mr. David’s first wife, proves the-transaction to be a gift.</p> <p>Mrs. Wells testified: “ I do not know exactly how much Mr. David gave W. 0. Campbell; I know he kept no account of it, and gave it to him as a gift; he did not tell me what he gave him, but it was some $2000, or over that sum; don’t know how much over; I think he gave Chalmers $100 at one time; I think he said he gave Thompson Campbell $4000; he gave Howard none that I know of, nor any to Mrs. McJunkin, nor to Clara.”</p> <p>Fourth. Because Miss Boyd was not permitted to participate in the distribution of the $683 profit, arising from the purchase of the widow!s share in the estate, to which purchase, as before stated, Miss Boyd had refused to give her assent.</p> <p>All of the appellants alleged that: “ The court erred in not deciding that the statute of advancements does not apply in this case because the heirs are all of the same degree and grandchildren, and take per capita.”</p>

<p>Error to the Court of Common Pleas of Greene county: Of October and November Term 1876, No. 183.</p> <p>Assumpsit by Kincaid and another, executors of Rinehart, against 'Hook. On May 11th 1875 the defendant pleaded, among other things, payment. Afterwards, on October 6th, he added a plea of set-off. At the trial he offered in evidence under this plea an account of items running from 1860 to 1871. The court below (A. E. Will-son, P. J.) refused to admit items of an earlier date than October 6th 1869, and so charged the jury. After a verdict for the plaintiff, in which a set-off was allowed the defendant for items later than October 6th 1869, and judgment thereon, Wisecarver, who had become the assignee of Hook, took this writ of error, assigning for error the charge of the court.</p>

<p>Appeals from the Court of Common Picas of Fayette county: Of October and November Term 1875, Nos. 294-801.</p> <p>These were appeals by Henry Bogue & Son, S. Stein k Co. and Newburger k Hochstadters, from the decree of the court distributing the proceeds of a sheriff’s sale of the- personal property of A. G Minehart & Sons, under an execution of Stein & Oo.</p> <p>Before the auditor who was appointed to distribute the fund arising from the sale, it appeared that on the 24th of March 1875, Brown, Kunkle k Co. issued a fi. fa. upon a judgment against A. G. Minehart, and upon the same day the writ was placed in the sheriff’s hands.</p> <p>On the 16th of April 1875, Stein & Co. obtained four judgments against A. G. Minehart k Sons, on which executions were issued to Nos. 144, 145, 146 and 147 of June Term 1875, and the writs placed in the sheriff’s hands on the same day.</p> <p>Upon the same day executions issued upon two other judgments which had been obtained respectively by Newburger & Hochstadters and Bogue k Son against A. G. Minehart k Sons.</p> <p>To the fi. fa. of Brown, Kunkle & Co. the sheriff made the following return:—</p> <p>“March 26th 1875, levied on all the interest of A. G. Mine-hart in the business and property of A. G. Minehart & Sons ; said partnership property, &c., consisting of ready-made clothing, &c., and subsequently sold said property as that of A. G. Minehart & Sons, as per return to fi. fas., Nos. 144 and 150 of June Term 1875.”</p> <p>To fi. fa. No. 144 of Stein & Co. the sheriff made the following return:—</p> <p>“ April 16th 1875. Levied on all the following property belonging to defendants, A. G. Minehart & Sons, viz.: A lot of ready-made clothing, &c., and after due and legal notice given as required by law, I sold the same on the 22d, 23d and 24th days of April 1875, for the sum of $2404.07, which money, on leave given, I paid into court for distribution, according to law.”</p> <p>To the fi. fa. of Newburger & Hochstadters and Bogue & Son the return was:—</p> <p>“ April 16th 1875. Levied on personal property of defendants, subject to levy on fi. fa. No. 144, of this term, and sold the same as per return to that writ.”</p> <p>Brown, Kunlde & Co. claimed before the auditor that although the business of retailing and selling goods in the store levied upon and sold, was done under the name of A. G. Minehart & Sons,- yet, in fact, there was no such firm as A. G. Minehart & Sons, but that the goods sold belonged to A. G. Minehart individually: and if such was the case, they were entitled to so much of the money as would satisfy their claim. A. G. Minehart, Samuel H. Minehart and A. G. Minehart, Jr., were called as witnesses to prove that, in fact, the store belonged to their father, A. G. Minehart, and that although the three were embraced in the name, yet the one alone had any interest.</p> <p>The auditor reported:—</p> <p>“ This allegation of Brown, Kunlde & Co. ivas established, as we think, by the evidence offered, and we find that although the business was done under the name of A. G. Minehart & Sons, yet that the ownership belonged to A. G. Minehart alone; that the goods sold were individual property and must go to pay his debts, We also decide that we have the right to determine the ownership of these goods, regardless of any return of the sheriff: Appeal of the York county Bank, 8 Casey 446 ; Vandike’s Appeal, 5 Harris 271; Cope’s Appeal, 3 Wright 284.”</p> <p>The auditor thereupon awarded to Brown, Kunlde & Co. $743,88, the full amount unpaid on their judgment together with costs.</p> <p>Bogue & Son, S. Stein & Co. and Newburger & Hochstadters all excepted to this report, because 1. The auditor erred in finding that the property was that of A. G. Minehart and not that of the firm of Minehart & Sons; 2. In admitting evidence to contradict the sheriff’s return ; 3. In awarding any part of the fund to Brown, Kunlde & Co., before the partnership executions had been satisfied.</p> <p>The court below dismissed the exceptions and confirmed the report, and from this decree these appeals were taken.</p>

<p>Error to the Court of Common Pleas of Butler countyOf October and November Term 1876, No. 241.</p> <p>The facts of the case appear in the opinion of the court. The decree of the court below (Bredin, P. J.), to which this writ of error was taken, was as follows :—</p> <p>“ 1876, May 6th, after hearing the court is of opinion that defendant should be legally adjudged guilty of the crimes charged in the information before proceedings can be instituted to remove him from office, and, therefore, discharge the rule, but at request of attorney for Commonwealth do direct the writ to issue pro forma as of date of rule to show cause, and do enter judgment quashing the writ.”</p> <p>The error assigned was the quashing of the writ by the court below.</p>

<p>Error to the Court of Common Pleas of Washington county: Of October and November Term 1876, No. 83.</p> <p>Assumpsit by Jonathan West against Hopkins and others, to recover usurious interest paid by him to the defendants. The affidavit of claim filed set forth that on April 13th 1871, West borrowed from the defendants $1500, giving them his judgment note of that date for $1644, payable in nine months; that judgment was entered on this note ; that he paid the defendants interest on the sum of $1644, from January 13th 1872 to May 13th 1875, to the amount of $657.60; that on October 6th 1875 he paid the defendants in satisfaction of the judgment, $1747.91; and that the plaintiff asked to recover $502.01, the amount of the usurious interest, with interest from October 6th 1875.</p> <p>An affidavit of defence was filed which set up that at the date of the entry of judgment, April 14th 1871, no part of the note had been paid and that the plaintiff had no cause of action.</p> <p>The court below (Acheson, P. J.) ivas of opinion that the voluntary payment of the judgment did not prevent the plaintiff from maintaining his suit and ordered judgment for the plaintiff for the full amount claimed; to which the defendants took this writ of error.</p>

<p>1. Where an iron company, for the purpose of increasing the power of their furnace, which had been completed, and in operation for many years, contracted with one firm for a new engine, with another for boilers, drum-heads and fixtures, and with a third for a boiler-stack, all of which were parts of one'design for the improvement of the furnace, and the different firms under these contracts commenced in their several shops the construction of the machinery and fixtures previous to the 16th of July 1872, and the foundation of the boiler-stack was commenced on that day, although none of the machinery or fixtures were finished or put in place until months thereafter, the mechanics’ liens filed by these several firms for the work so done and the materials furnished were properly preferred to that of a mortgage, the lien of which attached on the 17th of July 1872, in the distribution of the proceeds of a sheriff’s sale of the property.</p> <p>2. A mechanic’s lien can be supported for such machinery as was here furnished, and the fact that the work was not done on the ground, but at a distance in their shops, does not affect the rights of the claimants.</p> <p>3. Where additions made to an old building are substantial, for permanent purposes and made at heavy cost, and are so connected with the original structure as to make their connection as available, essential and direct as if they had been built beside its walls, they are “ additions of material parts” to the original structure, and where they serve in their actual use all the purposes that actual additions would have served, and their extent and value are significant enough to give ample notice to purchasers and creditors of the change in the character of the property, the additions so made, the work and the materials furnished therefor and the machinery placed therein are the subjects of mechanics’ liens, under the provisions of the Act of the 16th of June 1836.</p> <p>4. 'Apart from the Act of 1836 the claims of the mechanics’ lien creditors who had furnished the machinery in question can be sustained, under the provisions of the Act of the 21st of April 1856.</p> <p>5. It was alleged that the claim of one of the mechanics’ lien creditors was not filed in time, that the last work in pursuance of the contract was done on the 10th of October 1872, and as the lien was entered on the 25th of April 1873, that more than six months had elapsed. It appeared, however, that a charge was added in the bill of particulars on the 29th of October 1872, for fourteen days’ work in “ altering mud-drums,” and that said alteration was the result of a mistake of the company which allowed the claimant for the work: Held, that the lien was for work within the contract, and was filed in time.</p>

<p>Appeal from the Court of Common Pleas of Butler county: Of October and November Term 1876, No. 205.</p> <p>This was an appeal from the decree of the court confirming the report of the auditor appointed to distribute the fund arising from the sale of the interest of W. W. Perkins in certain oil leases, oil wells, fixtures, machinery, &c., connected therewith, under two writs of fieri facias issued by Yandergrift & Forman.</p> <p>The facts, in the main controversy before the auditor, are fully set forth in the opinion of this court.</p> <p>The only other question passed upon by this court was as to the right of D. C. Boyle to file a lien under the Act of March 7th 1873 (Pamph.'L. 219). The claim of Boyle was for a balance on a-contract for drilling the U. P. Well. The contract was made in the month of March 1873, wherein Boyle was required to drill said well to the oil-bearing rock, furnishing tools, ropes, and fuel for the drilling of the same, for the sum of $3400. He commenced work on the 24th of March 1873, and completed the well on the 14th of June following, and received.on said contract $2462.91, leaving a balance of $937.09 unpaid, for which he filed his lien. The other claimants to the fund objected to the allowance of this claim, because Boyle was a contractor and therefore could not file a lien under the Act of 1873.</p> <p>The auditor allowed the claim, and the court below (Bredin, A. J.,) sustained the allowance.</p>

<p>Error to the Court of Oyer and Terminer of Allegheny county: Of October and November Term 1876, No 257.</p> <p>Indictment of Frederick Meyers, for the murder of Augustus Dorn, alias “ United States Baker.”</p> <p>On the evening of the 29th of February 1876, as alleged by the Commonwealth, at a saloon on the corner of Third Avenue and Market street, in the city of Pittsburgh, kept by the prisoner, the latter thrust a poker, heated to “white heat,” into the groin of Dorn, and thence upwards into his abdominal cavity, from the effects of which he died about two weeks thereafter.</p> <p>The defence was, 1st. That, on account of the excessive and protracted use of intoxicating liquors and the taking of poison, the defendant was insane at the time of the commission of the act; and, 2d. That, having in view the circumstances of the case, the relations existing between the parties, the mental condition of the defendant, and the absence of motive, the crime had not the ingre- ■ dients of murder in the first degree.</p> <p>At the trial the following facts were disclosed:—</p> <p>That Meyers, at the time of this fatal occurrence, was the keeper of a drinking saloon on Third Avenue, in Pittsburgh, and living with him were two women, a bar-tender and Dorn, who, in the language of one of the witnesses, “ did chores about the house for what he got to eat and drink.” Both Dorn and Meyers had been in the habit of drinking to excess; and during the whole of the day on which he received the injury, Dorn was in a sort of stupor, induced by drinking; while Meyers was suffering from the combined effects of a recent attack of mania potu, the contents of a bottle of rat poison which he had taken with the evident intent to destroy his life, and from repeated indulgence in whiskey throughout the day.</p> <p>About 9 o’clock in the morning of the day the injury was inflicted, Meyers came out of his room into the saloon, and charged Dorn with having stolen his watch and chain, and said something about sending Dorn “to hell or across the river,” (meaning the penitentiary), if he did not return them;' to which it appeared Dorn, who was very drunk, said little in reply, but shortly after-wards gave the watch to the bartender. Neither party seemed to have been in anger, and the matter appeared to have been dropped finally, when Meyers ceased talking about it.</p> <p>When the trouble about the watch was over, Dorn laid down on a bench in the saloon and went to sleep, while Meyers returned to his room. Dorn, it appeared, went out several times through the day, evidently, as his condition indicated, for the purpose of getting more liquor; but Meyers remained in his room, coming out once to get a drink, until about 3 o’clock in the afternoon, when he .came into the saloon, and sat down at a table to play “ casino,” for the drinks, with one of the women, Meyers winning the game, and taking whiskey for his drink. While engaged in the game, Dorn sat down by the table and took up the woman’s cards, when Meyers told him to lay them down, and upon his refusal to comply, threw the water in his glass, but seemingly not in anger, in Dorn’s face, who in turn betrayed no anger, said nothing, and quietly remained sitting in his chair.</p> <p>At the conclusion of the game Meyers returned to his bed, and stayed there until about 7 o’clock in the evening, when he came into the saloon again, and approaching Dorn, who was lying on the bench, told him to “get up,” which Dorn did by sitting upright on the bench. Meyers then yent to the stove, and picking up the fireqDoker, stuck it in a hole in the lower part of the stove, where he let it remain until the point was heated to a white heat, when, drawing it forth and flourishing it around, and, in the words of one witness, “ fooling around and laughing,” he advanced towards Dorn and made a thrust at him, with the fatal effects above mentioned. Dorn made no resistance nor outcry, and sat still on the bench, no one apparently thinking he was seriously hurt, until a few minutes afterwards, when one of the women hearing something, as she told it, “ like a hydrant running;” upon examination it was discovered to .be the blood of Dorn dripping through his pantaloons upon the floor. Meyers, after the thrust at Dorn, laid the poker down in the. coal-box, took another drink, and went back to bed. Shortly thereafter he returned to the saloon, when one of the women said, “Fred, we had better go for a doctor,” and he replied, “It is of no use,” but afterwards gave her money to buy a plaster to staunch the blood. He then helped to carry Dorn into an adjoining room, and laid him on the floor, and once more returned to his bed. Dorn was removed to the homeopathic hospital, where he died on the 16th of March 1876. The physician of the hospital testified that the poker had penetrated about two inches, and had it not been bent it would have “gone more downward and not upward,” and not have penetrated the abdominal cavity, and the injury inflicted would have been less severe.</p> <p>In support of the theory that defendant was insane, it was shown that he had had a recent attack of mania a potu; that only two days before he injured Dorn he had purchased two bottles of rat poison, and drank the contents of one bottle; that he continued to drink immoderately even after he had taken the poison from which he was suffering — one witness testifying that he took seven or eight drinks on the day of the homicide.</p> <p>A number of witnesses testified that they believed Meyers was insane previous to and on the day of the homicide, in consequence of this excessive indulgence in strong drink and the taking of the poison, and as confirmatory of this belief gave evidence of his acts and declarations.</p> <p>There was evidence also that, just before his death, Dorn had said to two witnesses, “ Ered has done awful bad; but I don’t think he would have done it if he had been in his right senses; had it not been for the poison and drinking; that Ered was only fooling with him; that he was crazy after he took that poison.”</p> <p>In rebuttal, the Commonwealth proved a number of the acts and declarations of the defendant at the time of the homicide, and the arrest of the defendant, to show that Meyers was of sound mind, and had sufficient intelligence to comprehend his situation and endeavor to evade the officers of the law; among other things declaring, “You have no right to arrest me except you show me a warrant.”</p> <p>The court, Kirkpatrick, P. J., in his charge to the jury, said:—</p> <p>“ Murder at the common law is defined and described to be, when a person of sound memory and discretion, unlawfully kills any reasonable creature in being, and under the peace of the ■ Commonwealth, with malice aforethought, express or implied. The distinguishing feature and criterion of murder so enumerated and defined is malice aforethought. Murder, therefore, at common law, embraces cases where no intent to kill existed, but where the state or frame of mind termed malice in its legal sense prevailed.</p> <p>“ By the Act of 31st March 1860 of our legislature, however, it is declared that ‘ all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committéd in the perpetration of, or attempt to perpetrate, any arson, rape, robbery or burglary, shall be deemed murder of the first degree ; and all other kinds of murder shall be deemed murder of the second degree.’</p> <p>“ The intention to hill, in all of the very many cases which have been decided under this clause of the statute, has been universally held to be the very gist and essence of the offence. If that intention is wanting, therefore, there can be no conviction of murder of the first degree. All murder, therefore, which is not of the first degree, as suggested and defined by the statute, is necessarily of the second degree, and includes all unlawful killing under circumstances of depravity of heart, and a disposition of mind regardless of social duty, and fatally bent on mischief; but where no intention to hill exists, or can be reasonably and fully inferred. Therefore, in all cases of murder, if no intention to hill can be inferred or collected from all the evidence in, and circumstances surrounding the case, the verdict must be murder of the second— or it may be even of a lower degree. Manslaughter is defined to be the unlawful killing of another without malice, express or implied; which may be voluntarily, in a sudden heat, or involuntarily, but in the commission of an unlawful act. Yoluntary manslaughter often so nearly approaches murder that it is necessary to distinguish it clearly. The difference is this: manslaughter is never attended by legal malice or' depravity of heart — that condition or frame of mind before spoken of, exhibiting wickedness of disposition and recklessness of consequence or ‘ cruelty. Being sometimes a wilful act (as the term voluntary denotes) it is necessary that the circumstances should take away every evidence of cool depravity of heart or wanton cruelty. Therefore, to reduce an intentional blow, stroke or wounding, resulting in death, to voluntary manslaughter, there must be sufficient cause of provocation, and a state of rage or passion, without time to cool, placing the prisoner beyond the control of his reason, and suddenly impelling him to the deed. If any of these be wanting — if there be provocation without passion, or passion without a sufficient, provocation, or there be time to cool, and reason has resumed its sway, the killing will be murder.</p> <p>“ Insulting or scandalous words are not sufficient cause of provocation, nor are actual indignities to the person of a light and trivial kind. Whenever the act evidences a deadly revenge, and not the mere heat of blood; whenever it is the result of a devilish disposition, and not merely the phrenzy of rage, it is not manslaughter, but murder.</p> <p>“ Having thus stated the law of the crime, and noted the distinction between the different grades of felonious homicide, let us very briefly and as clearly as we can, suggest the law of the evidence having application in cases such as you are here and now called upon to determine.</p> <p>“ And first it may be stated as a general rule, that all homicide is presumed to be malicious, that is, murder of some, degree, until the contrary appears in evidence. Therefore, the burden of reducing the crime' from murder to manslaughter, where it is proved that the prisoner committed the deed, lies upon him. He must show all the circumstances of alleviation or excuse upon which he relies to reduce his offence from murder to the milder degrees and kinds of homicide, unless, indeed, where the facts already in evidence show it. So, too, as in this case, where the prisoner claims not a lower degree of homicide only, but an absolute acquittal, he must show all the circumstances by way of excuse upon which he relies to bring about such a verdict, and the burthen of satisfying you that he is entitled to such a verdict, rests upon him; where, as in this case, the killing, and the killing by the prisoner, are equally and both alike admitted.</p> <p>“ Let us, however, not be misunderstood. Although the homicide, without the circumstances of alleviation or excuse, is presumed to be murder, it is not presumed to be murder of the first degree. The presumption against him rises no higher than murder of the second degree, until it is shown by the Commonwealth to be murder in the first degree.</p> <p>“ When death ensues, as in this case, from the use of a deadly weapon, the jury must scan closely the conduct of both parties, their former relations and behavior, and the current of events as they transpired; the character of the weapon, the manner of its use, and all of the cii’cumstances attending it; and by a careful survey of all the evidence, and a conscientious judgment and appreciation of all the facts and circumstances disclosed by the testimony, endeavor to arrive at the true motive and cause which prompted the fatal blow. In coming to a conclusion in this regard, you will take into consideration each and every of the circumstances connected with, surrounding and having bearing upon the homicide, and in any way tending to shed light upon its perpetration.</p> <p>“ But it is claimed that the prisoner at the bar should be acquitted by reason of inscmity at the time of the perpetration of the act; that, by reason of previous habits of dissipation long indulged in, and further, in consequence of poison taken by him some days before, and from the effects of Avhich he had not fully recovered, his reason was dethroned, his judgment gone; that he had no control of his will and of his actions at the time, and so was wholly unconscious of this or any other act done by him; in a word, to put it in plainer phrase, he was not accountable for anything done by him at the time the homicide was committed.</p> <p>“ What then is ‘ insanity,’ and more especially that which in the judgment of the law is a sufficient defence to shield this prisoner from the effects and consequences of his crime ? Let us inquire; and to this inquiry, so vital to the prisoner and so pregnant with results, I beg your especial attention and most careful and conscientious observation and judgment.</p> <p>“ Insanity — in, not — and sound — sound or sane — is the lack of, or the opposite of, sanity; or, as technically and philologically defined, ‘the state of being unsound in mind, derangement of intellect, madness. Insanity is chiefly used, and the word is applicable to any degree of mental derangement, from slight delirium or wandering, to distraction.’ One so conditioned mentally at the time of the commission of a crime, is held in law, as he is in morals, irresponsible, and can no more be convicted and punished for his offence than the child of ténderest years, or the lunatic confined by the walls of an asylum. The justice and humanity of this proposition are obvious. Applied practically to the case upon trial — if the prisoner at the bar, at the time of the perpetration of this admitted homicide, Avas insane, or so deficient in mental capacity as to be unable to form an intent to take life, he cannot be found guilty of murder of the first degree, or indeed of any offence under this indictment, and is entitled to an acquittal at your hands, by reason of such insanity or mental weakness.</p> <p>“ At the threshold of these instructions, upon this branch of the case, it is proper that I should say, as I do, and then to call your especial attention to the remark, that though the laAV in its charity very properly always presumes men innocent until they are proved guilty; yet it is also a presumption, essential to the safety of society as well as founded in experience, that every person is of sound mind until the contrary appears from the evidence; and the unsoundness of mind must be established by the defendant satisfactorily to the jury. The burden is upon him to establish this fact.</p> <p>“ The laAY of this state is that, Avhere the killing is admitted, as in this case, and insanity or Avant of legal responsibility is alleged as an excuse, it is the duty of the defendant to satisfy the jury that insanity actually existed at the time of the act, and a doubt as to such insanity will not justify the jury in acquitting upon that ground.</p> <p>“ The laAV presumes sanity Avhen an act is done, if no insanity is shoAvn by the evidence; and Avhen it appears a man Avas sane shortly preceding the act and shortly after, the presumption of sanity exists at the time of the act, and no jury have a right to assume otherwise„.unless the evidence in the cause and the evidence in connection Avith the act fairly convinces them that the defendant Avas actually insane at the moment the act Avas committed.</p> <p>“ And here let me enumerate briefly, as I do, the circumstances upon Avhich the CommonAvealth relied to convict. It is claimed by the Commonwealth that this man, from the time that he got out of the workhouse until the evening of the perpetration of this terrible act, was sane; that his every conduct evidenced entire sanity ; that he transacted his daily business. It is claimed further, as I gathered it as I listened to the argument of the learned district attorney, as I Avas preparing these instructions, that upon the Saturday previous the defendant was attending to his business as usual; he had mind to send for a barber to come and shave him by the man he aftenvards killed; that the barber came on the Tuesday following and shaved him; that he directed the barber to shave his barkeeper ; that upon the afternoon of that day he sat down with the girl ‘ Jennie’ to play a game of casino ; that he was sufficiently himself — sufficiently up in his game to play his cards successfully, and to accomplish her defeat; and to join her in taking a drink ; and this, too, a short time previous to the killing; that he had sense enough, in order to perpetrate this offence, to put the poker into the hole of the stove, to heat it by the fire to a ‘ Avhite heat,’ and to thrust it into the groin or person of the deceased; that he • was sane enough when called upon by the officers, in the first place, to demand a warrant, and then to declare that he would not go unless he was taken and carried, and then to declare that he would not go at all; and to declare that he would shoot the ‘ son of a bitch’ that would arrest him ; and then when brought to his notice that he must go — previously being in his stocking feet — he had sense enough to put on his slippers and go, &c. From all these circumstances it is insisted that the defendant Avas sane at the time of the perpetration of the act. To this the defendant ansAvers, through the mouth of his witnesses, and it is urged upon you Avith great zeal and ability by his accomplished counsel, that he had, prior to this thing, been drinking to excess : that for months before that, from the time that he separated from his wife, he had given himself up to bad habits ; that from the time he came out of the workhouse he was drinking to excess ; that some íayo or three days previously he had taken poison, and from the effects of this and the drinks he had taken afterAvards, he had not recovered; and that he Avas not in a condition to know Avhat he was doing at the time. And as further evidence in that regard, they put these girls upon the stand, not as experts, but as giving their views of his mental condition. They call men who Avere in the cell with him, and they call other men to testify to his conduct and his- manner; from all of Avhich they ask you to infer that at the time of the perpetration of the act this man Avas insane. As to his conduct in the cell, it will be for you to say whether it Avas simulated or whether it was real. It will be remembered by you that Leigh detailed his conduct in the cell to you, how he sat down and told him about his troubles; the story about how he Avas committed, and cried about it. [These things Avill all enter into your deliberations in making up your minds as to his sanity, bearing in mind that the killing by the prisoner being admitted, the duty devolves Upon him to clear himself of the killing, to satisfy you beyond a reasonable doubt that he was insane at the time the act was committed,.] And in deciding upon this case, or upon any material pai't of it, such as the alleged insanity of the prisoner — which is the most material part of it — it is your duty to give the prisoner the benefit of any reasonable doubt arising out of the evidence which might prevent you from coming to a satisfactory conclusion. But this doubt — I call your attention to this — must fairly arise out of the evidence, and not be merely conjured up as a figment of the imagination. Jurors greatly mistake their duty Avhen they go in search of a doubt outside of the evidence in the case. They have no right to raise a mere fanciful or ingenious doubt, to escape the consequences of an unpleasant or painful verdict. It must be an honest, it must be a conscientious doubt; such a doubt as Avould cause an ordinary, prudent man to hesitate ; such a doubt as would fairly strike a conscientious mind and cloud the judgment. When the law supposes a reasonable doubt, it does not mean that you are to speculate as to whether a matter is established by the evidence to your satisfaction, and might not have been otherwise; it means that you are to take nothing for granted upon mere assertion; and it means further, that when you honestly hesitate' upon a question whether certain evidence establishes certain propositions when at the truth, and cannot come to a satisfactory conclusion as to the existence of a certain fact or not, as to its effect, then the doubt belongs to the prisoner at the bar. The difficulty, the reasonable doubt, as we have said, must be suggested by the cause itself, by the evidence incident to it, and not by the imagination of the jury. If the beam waver, then the doubt is thrown into ,the defendant’s scale; but the jury must not so hold the beam as to cause it to tremble either in favor of the Commonwealth or of the defendant.</p> <p>“ [Returning again to this defendant’s insanity, I again, and in one word, remind you, and impress upon you what I have already said, that where, as in this case, the killing by the prisoner is admitted, and insanity is alleged by way of defence, it is his duty to satisfy you, and the labor is upon him to convince you, that insanity, madness, actually existed at the time of the commission of the crime; and a doubt as to such insanity will not justify you in acquitting the prisoner upon that ground. If he has so satisfied you, if he has so convinced you beyond a reasonable doubt, such doubt being of the kind and of the character we have already discussed and defined to you, then the prisoner is not responsible for anything that he might have done] and is entitled to a verdict of acquittal at youv hands; but if, upon the other hand, he has not so convinced you and satisfied you, he should be convicted in such form, and in such degree as you, in the exercise of your best judgment and most conscientious deliberation, think just and right under all the evidence which has been submitted to you. With the consequences of your verdict you have nothing to do. Those who take up the sword, as we have it upon high authority, must perish by the sword, and he who sows the wind need not be surprised if he should reap the whirlwind. The defendant, and not the Commonwealth, has made the bed upon which he lies to-day; and if the bed is so short that he cannot stretch himself, or if it is so long he cannot cover it, it is the fault of the prisoner, and not of the Commonwealth. Should you be of the opinion that the man is not insane, that he was sane at the time of the perpetration of the act; but if you should be of opinion that he had no intent to kill, which is the essence, which is the very heart of murder, if he was not guilty of wilful, deliberate, and premeditated killing, and still sane, then you can find him guily of murder in the second degree, if you think it right under the evidence. Or still lower — if you think the evidence does not warrant that you can find him guilty ■ of voluntary manslaughter, giving to the prisoner, as I have already said, the benefit of every reasonable doubt. As, for example, if you have a reasonable doubt that he had an intention to kill; that his conduct did not evidence wilfulness, deliberation, and premeditation, then you should find him guilty of murder in the second degree. If, coming still further down, you find his conduct did not indicate such a degree of crime, and you have a reasonable doubt about it, then you should find him guilty of voluntary manslaughter ; and [if, as I have already stated, you find him wholly irresponsible, if he has satisfied you beyond a reasonable doubt, a conscientious doubt arising out of the case, that he had no moral sense, that he was, in plain phrase, a madman at the time of the perpetration of the offence, then he should be acquitted of all crime, and you should so note the fact, and acquit him upon the ground of insanity].”</p> <p>The jury, after they had retired, asked for further instructions as to what constituted a reasonable doubt, and the court repeated that portion of the foregoing charge in relation thereto.</p> <p>The jury found the prisoner guilty of murder in the first degree.</p> <p>The defendant moved for a new trial, which was overruled and sentence of death was pronounced upon the prisoner.</p> <p>The defendant then took this writ, and among the errors assigned were: 1. The whole charge of the court as above. 2. Especially the particular portions of the charge included in brackets. 3. That under the evidence in the case the defendant was not guilty of murder in the first degree.</p>

<p>Appeal from the Court of Common Pleas of Mercer county: Of October and November Term 1876, No. 210.</p> <p>Margaret J. Trout filed a bill in equity against John McDonald, to restrain him from sinking a certain shaft on her land, and from entering thereon, for the purpose of mining coal. The facts Avere as folloAVS:—</p> <p>In December 1867, M. C. Trout, the husband of the plaintiff, made a voluntary conveyance of a farm of 100 acres of land in Mercer county to his Avife. This deed Avas not recorded till August 1874, and McDonald, the defendant, never knew of its existence till July of that year. In April 1873, Trout, by a writing under seal, granted McDonald the “ privilege of going on the south end of his farm, near No. 14 school-house, and from thence west to the old barn, and mining and taking out all the coal he could reach beneath the surface,” for a royalty of thirty cents per ton, and also “to work the mine in such manner as to do the least possible damage to the land, to fill up all holes made, and to level off all banks and ridges,” &c. The plaintiff was present at the execution of this lease, and knew the contents of it. Trout died in June 1873. Up to the time of his death there had been no visible Change in the possession of the farm, but the husband remained in possession with his wife till his death, exercising all necessary acts of ownership. The plaintiff did not notify McDonald of her title till July 15th 1874, but, on the contrary, she allowed him to work under the lease, and accepted about $200 from him as royalty thereunder. The defendant had been mining coal through shaft No. 1, under the lease, during Trout’s lifetime and after his death, and had sunk also a trial shaft, and when this bill was filed was about to open another shaft, No. 3, upon the property described in the lease, to the northeast of the old barn, and distant from the first shaft about 1000 feet. To restrain the defendant from sinking this shaft, and from entering on her land under the lease, was the object sought by the bill. The bill further alleged probable damage to a spring near shaft No. 3. This spring, however, appeared to be a “ wet-weather” spring, of no particular value.</p> <p>The court below, Maxwell, P. J., made a decree dismissing the bill, from which the plaintiff appealed.</p>

<p>Error to the Court of Common Pleas of Crawford county: Of October and November Term 1876, No. 12.</p> <p>. Assumpsit by B. E. Ruggles, to the use of H. N. Hall, against Garson Shamburg and others, associated and doing a banking business as “ The Citizens’ Bank,” to recover the amount of two deposits alleged to have been made by him with the defendants. Shamburg (who alone took this writ of error) pleaded non-assumpsit and that he was not a partner with the other defendants, as to the subject-matter of this action. At the trial, before Lowrie, P. J., these facts appeared:—</p> <p>In September 1870 certain persons associated themselves together as a species of joint-stock association to do a banking business as “The Citizens’ Bank.” In June 1871 the defendant, Shamburg, became a member of the association and continued to be so until December 1872. He was a director of the bank during a part of 1872 and was so advertised in the local newspapers from early in 1872 until June 1873, some months after he had withdrawn. There was evidence tending to show that early in the spring of 1873 he had required that his name should be withdrawn from the advertisement.</p> <p>Ruggles made his first deposit (of $700) in January 1871 (before Shamburg became a partner), and his second in January 1873 (after Shamburg ceased to be a partner). Interest was paid to him on the first deposit on January 19th 1872, and on January 4th and October 4th 1873, and on the second deposit, on October 4th 1873. There was no evidence as to whether this interest was _ paid with Shamburg’s knowledge and consent. There was nothing else to show an arrangement upon Shamburg’s part to assume the debts of the firm due when he joined it. Buggies testified that he did not inquire and did not know who the partners were. The record did not bring up the articles of partnership.</p> <p>The court refused the defendant’s points (which need not be given here), and charged the jury as follows: “ It seems fair to infer that these defendants, buying stock in the bank as it stood, without any separation of past from future effects and liabilities, and continuation of the business without any discrimination between past or future profits, and paying (it may be presumed) debts and depositors and interest on this very claim: it is fair to imply that they assumed the payment of the $700. ' The other, if made while Shamburg was still published as a partner, must be considered as a debt contracted by him.”</p> <p>There was a verdict for the plaintiff for $1079. After judgment thereon, Shamburg took this writ of error, assigning as error the refusal of the defendant’s points and the above charge.</p>

<p>Appeal from the Court of Common Pleas of Crawford county: Of October and November Term 1876, No. 100.</p> <p>■ This was an appeal of John Eaton and Edward H. Cole from a decree of the court below ordering a distribution of the proceeds of a sheriff’s sale of the real estate of A. B. Williams. It appeared that on May 21st 1872, the firm of Keys Brothers obtained an award of arbitrators against Williams in the Common Pleas of Crawford county for $820, under the Act of 1836. The award was duly entered, and the plaintiffs took an appeal; nothing further was done in the case till January 1875, when the appeal was withdrawn by consent of both parties. On November 3d 1873, Eatonand Cole obtained two judgments against Williams. Under these judgments certain real estate of Williams was sold by the sheriff, and the proceeds of these sales were paid into court for distribution. The court below distributed the fund, first to the city of Titusville for taxes for the years 1874 and 1875, secondly to Keys Brothers on their award, and thirdly (as far as the fund reached) to Eaton and Cole on their judgments. From this decree, this appeal was taken. The errors assigned were to the award of priority to the city of Titusville, and to the claim of Keys Brothers.</p>

<p>Error to tbe Court of Common Pleas of Qrawford county: Of .October and November Term 1875? No. 182.</p> <p>This was a scire facias sur municipal claim, filed by the city of Meadville against Frederick Huidekoper, for macadamizing the roadway and paving the gutters in front of two lots of defendant, whioh abutted upon the street upon which the work was done. The work was done by the city commissioner, in pursuance of a resolution of the city council, passed in conformity with a general ordinance, which ordinance was framed to accord with the Act of the 6th of April 1870, Pamph. L. 967, entitled “A supplement to an Act incorporating the city of Meadville,” and which provides as follows:—</p> <p>“ The city council is hereby vested with full power to ordain and establish such ordinances and regulations, not repugnant to the Constitution and laws of the United States and of this Commonwealth, as they shall deem expedient or necessary. * * * To survey, lay out, enact, ordain and open such streets, &c., as they may deem expedient. * * * To pave, repair or repave any public street or alley, or any part thereof, which is now or may hereafter be laid out and opened in said city. * * * To levy and collect the cost and expense of work and materials used therein from the owners of the property bounded by and abutting on said street or alley, by an equal assessment,” &c.</p> <p>The general ordinance passed in pursuance of this act contained these provisions:—</p> <p>“ That hereafter, when the city council shall deem it necessary to pave, repair or repave any public street or alley, * * * they shall pass a resolution to that effect, describing what street or alley, or part thereof, the manner, and materials to be used. * * * The costs and expenses of such work, and material used therein, shall be levied and collected from the owners of the property abutting on said street or alley, &c. On failure of said owner or owners to pay the costs and expenses within thirty days from the completion of said work, the city council shall have power to direct the city attorney to file a claim or claims therefor, with ten per cent, advance thereon, in the name of the city, under the provisions of the law in relation to mechanics’ liens, &c.”</p> <p>To the scire facias upon the lien in this case, the defendant filed an affidavit of defence, wherein he averred, “that the property against which this lien is entered has already been taxed for the year 1874, uniformly with other property in the city, for city purposes, including the improvement of streets, which tax was levied and paid before the entering of this lien; therefore, the action of the plaintiff in attempting to assess the cost of the improvement of Water street, as set forth in claim filed in this case, is unequal, unjust, and contrary to the provisions of the Constitution of Pennsylvania requiring that taxation be uniform. The assessment charged by the plaintiff upon defendant’s property was made to defray the expenses of macadamizing and paving a portion of Water street, and consists of an improvement of the street for the general public benefit, the necessity for which was caused by the erection of a freight depot by the railroad company, at or near the south end of Water street, and over which street freight is moved to all parts of the city. This improvement does not confer any special benefit upon the property assessed. A portion of said improvement, of about forty-eight feet in length, at the intersection of Mercer street, an existing, well-made pavement, was removed by the city, and no allowance made to the defendant therefor; that the street in question has been open, and used by the public for more than seventy yeai’s previous to said macadamizing; that the other streets of the city of Meadville,. so_far_as already paved, have all been paved at jgxiblic^expense, and paid for out of moneys assessed upon and collected from the citizens of the city, including the defendant; that the improvement alleged in the plaintiff’s claim as filed, was not done in compliance with the provisions of the Act of Assembly, as claimed by the plaintiff, in that the said plaintiff did not, prior to or at the time of making said improvement by its council, ordain and establish by proper ordinance the macadamizing and paving recited by the plaintiff; that the city council did not adopt any ordinance upon the subject; that ‘ the paving of gutters with cobble stone and macadamizing road with broken stone,’ as charged in the plaintiff’s claim, is not paving or repairing contemplated by the Act of Assembly, under which the plaintiff claims to assess the cost of work and materials upon the land abutting on such improvements, and even if the plaintiff’s claim is otherwise valid,' it is for this reason believed to be invalid.”</p> <p>The plaintiff entered a rule on defendant to show cause why judgment should not be entered for want of a sufficient affidavit of defence; which rule, after argument, was made absolute.</p> <p>The court, Lowrie, P. J., in an opinion, said:—</p> <p>“ The defendant’s land is taxed for its proportion of the expense of paving the street, and he resists the payment because he thinks that the work done is no especial benefit to his land, and that therefore the tax is unjustly imposed.</p> <p>“ He has not been singled out in any special way to bear this burden; but it falls on him by a general law of the city applicable to all owners of land therein. Streets are for public purposes; but they are also necessarily local and for local purposes, and it is manifestly impossible to define by a general law when one is so purely local as to be properly a subject of local taxation, or when so general or public as to be a subject only of general charges. And no matter how general a law for such cases may be, it must operate very unequally in its administration, because of the undefinable differences in the ground over which a road.passes, and of the uses demanded of it.</p> <p>“ It is not then the law that is unequal, but the circumstances of place, population, business and ownership to which it is to be adapted. The manner of local taxation, only for local purposes, is a valuable principle of limitation of authority, though it may be impossible to state it by' a law so definite that it can always be clearly seen when the line of limitation is transgressed.</p> <p>“ Townships, boroughs and cities require roads of very different qualities, and it is impossible to make the same road-laws for all without making them so general and indefinite as to be impracticable, or leaving a very annoying and oppressive discretion or arbitrariness to those who administer them.</p> <p>“ In this way the inevitable inequalities of contribution required by the public needs would disappear from the law, only to appear more arbitrarily in its administration. If there are to be roads at all, the advantage of them must be unequal accordingly as they furnish more or less convenient access to the property of individuals ; and road officers must have a large discretion in the expenditure of the public money for the maintenance of them. The city authorities did this work in pursuance of a very plain Act of Assembly, and a general ordinance for all such cases, and of a special resolution passed for the improvement of this particular street; and they have charged defendant’s ground with its proper share of the exp'ense, and in a form not complained of. Paving the gutters with cobble stone and the cartway with broken stone (macadamizing), is a paving within the meaning of the Act of Assembly.</p> <p>“ But the defendant had already paid a general city tax for the same year, being in part for the general improvement of streets; and that no allowance is made for the old pavement taken away; and complains that other streets in former times had- been paid by general taxation, and not by special charges. These all seem to us to be only a mode of stating how many ways the law is felt to be a grievance, rather than arguments against the authority to pass such a law.”</p> <p>The defendant assigned this judgment of the court for error.</p>

<p>1. Where a corporation has entered into a contract which has been fully executed on one part, and nothing remains but for- it to pay the consideration money, it will not be allowed to set up that the contract was ultra vires.</p> <p>2. The Oil Creek & Allegheny Biver Bailroad Go. agreed to pay the Pennsylvania Transportation Co., an oil pipe-line, a certain sum per barrel on all oil •transported by it, in consideration that the pipe-line would deliver all the oil under its control to the railroad company for transportation; the pipe-line performed its part of the agreement and brought suit to recover the price agreed on: Held, that the railroad company could not set up as a defence that the contract was ultra vires.</p> <p>3. Whether the railroad company might rescind the contract for the future, on the ground that it was ultra vires, not decided.</p> <p>4. In this case the court held that there was evidence enough of an alleged agreement to modify an existing contract to justify submitting the question to the jury.</p>

253. On the 12th of August 1875, the council of the city of Mead-ville passed an ordinance for the opening of Park avenue, which ordinance was approved by the mayor, and public notice given of its passage according to law. The city council, in pursuance of the Act of the 6th of April 1870, Pamph.

216. The facts in this case are substantially the same as those contained in case of Huidekoper, ante, page 167, with the exception that the complainants here acquiesced in the confirmation by city council of the report of the viewers.

270. Assumpsit by John Berg & Co. against William H. Abbott et al., partners doing business as the Citizens’ Bank. John Berg & Co., bankers of Butler, were the holders of a promissory note made by Jenks Budlong to the order of M. H. Collins for $2500, dated June 6th 1878, and made payable at the Citizens’ Bank of Titusville four months from date.

<p>1. The admission of a party claiming a right to defend in ejectment under sect. 9 of the Act of 21st March 1772, is an act of the court, whose duty it is to inquire before mating the order whether the applicant really stands in the relation of landlord, or whether his claim of title is consistent with the possession of the occupier.</p> <p>2. In ejectment by B., a sheriff’s vendee, against I., the defendant in the execution, it is questionable whether the court ought to allow the landlord or one claiming as such to appear and take defence upon his title.</p> <p>3. In such case where L., to whom the land had been conveyed by a deed made before the entry of the judgment under which the land was afterwards sold, was admitted as co-defendant on the day of the trial without objection from the plaintiff, and it did not appear that he was admitted to defend as a landlord: Held, that it must be presumed that he was admitted as a party in possession, and that it was not error to allow him at the trial to put in evidence his deed for the land as a defence to the action.</p> <p>4. The plaintiff, to avoid the deed to L., offered evidence tending to show that it was made for the purpose of hindering and defrauding the creditors of I., which evidence was refused by the court: Held, to be error, and that the evidence should have been admitted, and the question of fraud, and whether the deed was for a good and valuable consideration, left to the jui'y-</p> <p>5. After the evidence was in the plaintiff’s counsel made a verbal request for a charge to the court which the court refused, but no exception was taken ; this refusal was assigned for error: Held, that there was nothing on the record to support the assignment.</p>

<p>1. A decree of a court of equity for the payment of money cannot he transferred to another county for the purpose of lien and execution as in the case of a judgment at law.</p> <p>2. The 1st sect, of the Act of 29th of March 1859, only gives a decree in equity the force and effect of a common law judgment as to lien and revival when entered in the judgment or lien docket of the proper county and not for the purpose of transfer to another county.</p>

<p>1. In 1849 A. conveyed land to B. and 0., his brothers, who took immediate and continued in exclusive and uninterrupted possession until 1872. By virtue of a deed given by the sheriff in 1853, in pursuance of a sale of this land on a judgment obtained upon an allegation that the conveyance of A. to his brothers was fraudulent as to creditors, plaintiffs in 1872 brought an action for its recovery, and contended that their claim was not barred by the Statute of Limitations because the statute operated not upon the possession of the occupant but upon the right of entry of the owner, and as this right of entry did not accrue until 1853, the title of the defendants by virtue of the statute was not complete: Held, that the statute would not admit of such a construction and that a possession such as that of defendants for twenty-one years, under a claim of ownership, whether the original entry was with or without color of right, created a perfect title.</p> <p>2. It was error to instruct the jury that after such a lapse of time the operation of this deed could only be defeated by clear, positive, direct and undoubted proof that it was given without consideration and to hinder and delay creditors.</p> <p>3. Whether if this suit had been brought without unreasonable delay the refusal to hear the evidence of the plaintiff in regard to the declarations of A., to impeach his deed to his brothers, would be right or wrong, undecided.</p>

<p>G., 0. and S. made an instrument which read, “ Six months after date for value received, we or either of us promise to pay to T. or order $832 money borrowedand continued “ and we empower any attorney to appear for us and confess judgment against ms for the above sum, &c., &c.” G. having died T. treated the warrant of attorney as joint, and entered judgment against the two survivors. 0. asked the court below to strike off the judgment, for the reason that the power to confess judgment was a joint power, and after the death of G. did not authorize the entry of judgment against 0. and S., or either of them as survivors, which was refused. Held, that this was not error.</p> <p>Per Curiam. — But treating this power as joint, as the plaintiff did, we are not disposed to follow the English case of Gee v. Lane, 15 East 592. The theory of judgments, according to the English law, has been so greatly changed in Pennsylvania by legislation (in number of acts cited), it will not do to follow English precedents too implicitly, and we must treat this case as one to be governed by the intent of the warrant rather than by English decisions.</p>

<p>Error to the Court of Common Pleas of Crawford county: Of October and November Term 1876, No. 153.</p> <p>Scire facias by Eisk, to the use of Humphrey, against Duncan, upon a purchase-money mortgage of a tract of eighty acres sold by Eisk to Duncan, purporting to be “made for the better securing the purchase-money” of the said tract. Under a plea of payment with leave, &c., the defendant set up an alleged defect in the title to two other tracts of land, containing one and ten acres respectively, which he had bought from the plaintiff and which were together conveyed to him by a separate deed of special warranty. The defendant testified that the purchase of all three tracts was a single transaction, that the price agreed upon was a round sum, without regard to the price of each particular tract, that the property had been conveyed to him by two separate deeds at his own request, and that the mortgage in suit was given to secure the unpaid purchase-money on all the tracts. The two deeds bore date the same day. It was not disputed that Duncan’s title to the two smaller tracts was defective.</p> <p>It was agreed that the jury should find the damages sustained by the defendant by reason of the defect in the title to the one and ten acre tracts and that if the court should be of opinion that the defendant might show the failure of his title to those tracts as a defence to this action, then judgment should be entered for him for costs ; if otherwise, then judgment should be entered for the plaintiff for $500, with interest from August 9th 3871, together with five per cent, attorney’s commission. After argument the court below (Lowrie, P. J.) ordered a judgment on the reserved point for the defendant for costs; the plaintiff then took this writ of error.</p>

<p>Appeal from the Court of Common Pleas of Crawford county: Of October and November Term 1876, No. 126.</p> <p>This was the appeal of the American Buttonhole, Overseaming and Sewing Machine Company, from the decree of the court making distribution of the proceeds of the sheriff’s sale of the real estate of E. T. Hall and II. C. Bosley, on a fieri facias issued by H. M. Hall to the use of the Second National Bank of Titusville.</p> <p>The proceedings were as follows:. E. T. Hall and H. C. Bosley were partners in the sewing machine and real estate business in Titusville, in 1871-72, and part of 1873. Their commercial notes, endorsed by H. M. Hall, were discounted by the Second National Bank, and were renewed from time to time, with the same endorser. To secure II. M. Hall, on account of these endorsements, Hall & Bosley gave him two judgment-notes, one at sixty days, dated March 12th 1872, on which judgment was entered August 27th 1872, to No. 448, August Term, and the other at sixty days, dated June 10th 1872, for $1000, on which judgment was entered the same day to No. 449, August Term 1872.</p> <p>Judgment was also entered May 9th 1873, to No. 688, April Term 1873, for $404, on a judgment-note at sixty days, to secure H. M. Hall on account of his endorsement of the note of E. T. Hall, which was discounted by the bank on the individual account of the latter.</p> <p>' On the 18th of July 1873, in pursuance of an agreement of all the parties with the bank, H. M. Hall assigned said judgments to the Second National Bank, and at the same time, as a part of the same settlement, two suits which E. T. Hall had brought against the bank, one in his own name and ohe in the name of Hall & Bosley, to recover usurious interest paid to the bank, were assigned to one of the directors of the bank.</p> <p>When this agreement was made, E. T. Hall was indebted to the bank in the sum of $9074.36, and the firm in the sum of $6532.16.</p> <p>Under the fi. fa. of II. M. Hall to the use of the bank, the sheriff sold two lots, one for $4100, and the other for $1100, to which he made a special return, setting forth the sales and certifying that the bank was a lien-creditor of said E. T. Hall and H. C. Bosley, and as such was entitled to the sum of $5200, for which he had taken the receipt of the bank, less costs, &c.</p> <p>The receipt accompanying the return was as follows:—</p> <p>On judgment No. 447, August Term 1872 (balance) $64.70</p> <p>On judgment No. 448, August Term 1872 . . . 1605.90</p> <p>On judgment No. 449, August Term 1872 . . . 1071.60</p> <p>On judgment No. 633, November Term 1872 . . 2073.30</p> <p>On judgment No. 688, April Term 1873 . . . . 321.55</p> <p>$5137.05</p> <p>Exceptions were filed to this special return by the defendants in the writ and the American Sewing Machine Company, who had a judgment to August Term 1873 against said defendants for $2000.</p> <p>Hall & Bosley bought the east lot from J. F. Wikoff, L. L. Lamb & Y. M. Hunter, who had purchased the same from H. L. Hershberg, giving him a mortgage thereon for $2500, for part of the purchase-money. It was dated August 10th 1871, recorded August 14th 1871, $500 of the amount to be payable November 10th 1872, $1000 August 10th 1872, and $1000 August 10th 1873, with interest on all sums unpaid. When Hall & Bosley bought this lot the $500 had been paid, and they gave Wikoff, Lamb & Hunter a purchase-money mortgage for $2000, payable in two instalments of $1000 each, on the same days as the Hershberg mortgage. This mortgage was made in the names of E. T. Hall and fl. C. Bosley. It is dated May 4th 1872, and was recorded December 27th 1872. This Hall & Bosley mortgage was for the same debt as judgment No. 633, November Term 1872.</p> <p>When Hall & Bosley bought the east lot from Wikoff, Lamb & Hunter,' and gave the mortgage to them, it was arranged that they (Hall & Bosley) should pay the money directly to H. L. Hershberg, to apply on the mortgage held by him, in satisfaction of the Hall & Bosley mortgage; and when the first instalment of $1000 became due, August 10th 1872, Hall & Bosley paid it, with interest on both instalments, to H. L. Hershberg, taking his receipt therefor, which they afterwards exchanged for a receipt from Wikoff, Lamb & Hunter. The Hall & Bosley mortgage was purposely made to correspond with the times of payment and balance ($2000) of the Hershberg mortgage, and to take care of said balance.</p> <p>The said payment of $1000 and interest was made to H. L. Hershberg, by direction of Wikoff, Lamb & Hunter. The records of said mortgages do not show said payment. The record of judgment No. 633, November Term 1872, shows an entry on the 8th of August 1873, assigning the second instalment of $1000 and interest of said judgment to the Second National Bank of Titus-ville, and setting forth that the first instalment had been paid. This assignment' was made in pursuance of the agreement heretofore alluded to, which contained this stipulation: “ Said bank is to assume, pay and take an assignment of the balance due on a bond and mortgage given by E. T. Hall and Henry C. Bosley to John E. Wikoff, L. L. Lamb and Y. M. Hunter, for balance of purchase-money due on a piece of land on West Spring street, Titusville, and being $1000 with interest from August 10th 1872.”</p> <p>Before the auditor it was contended, on behalf of the appellant, 1. That judgment No. 633, November Term 1873, was not entitled to any of the proceeds of sale in this audit, it being for the same debt for which the Hall & Bosley mortgage was given, said mortgage being a purchase-money mortgage on one of the lots sold by the sheriff in this case, and being for the same debt represented and secured by the Hershberg mortgage, which was prior to all other liens on the lot sold, and was not divested by the sale. 2. That if judgments Nos. 448 and 449 are entitled to be paid out of this fund, the amounts paid thereon by way of interest and discounts over and above legal interest should be credited upon the principal of said judgments.</p> <p>On the part of the bank it was argued:—</p> <p>1. That any arrangement about the payment by Hall & Bosley to Hershberg to apply on the mortgage held by him in satisfaction of the mortgage that said Hall & Bosley gave to Wikoff, Lamb & Hunter, cannot interfere with the rights of the bank, there having been no notice thereof. 2. That the lien of the second mortgage, viz., from Hall & Bosley to Wikoff, Lamb &. Hunter, was divested by the sheriff’s sale; and, 3. That two suits are pending, one by E. T. Hall and one by Hall & Bosley, against the said bank for double the amount of all the interest that E. T. Hall and H. C. Bosley paid to said bank, for two years before the beginning thereof, under Act of Congress of June 3d 1864, and usurious discounts cannot be deducted from any judgments in this audit.</p> <p>The auditor was of opinion that the bank was entitled to the amount of the judgment assigned to it, viz., $1000, and interest, and upon the question of illegal interest reported as follows:—</p> <p>“ The contention of the Sewing Machine Company assumes that usurious interest and discount were paid on the judgments ; but this is not correct. The evidence was that usurious discounts were paid on the commercial notes. The judgments were not usurious. The suits for double the amount of discounts were assigned to F. W. Ames at the time of the settlement of July 18th 1873. If he took the assignments for the bank it would be equivalent to a release of the claims; if for himself, and he has not settled with the bank, he holds whatever rights were legally transferred to him as against the bank. The auditor is not satisfied that he has power to reduce the judgments under the facts, and he declines to deduct the usurious discounts.”</p> <p>The auditor also reported that the costs ought to be paid by the company and the bank in equal proportions.</p> <p>To this report the Sewing Machine Company filed the following exceptions:—</p> <p>1. The auditor erred in applying any part of the fund to judgment No. 633, November Term 1872, that judgment being for the same debt secured by a first mortgage held by H. L. Hershberg, and subject to which the Second National Bank must be held to have purchased the property.</p> <p>2. In not applying the usurious interest found by him to have been received by the bank on the notes secured by the judgments assigned to it by H. M. Hall, to the reduction of said judgments in this distribution.</p> <p>3. In reporting that any part of the costs of this audit should be paid by the American Sewing Machine Company, exceptant.</p> <p>The court confirmed the report of the auditor and from that decree this appeal was taken.</p>

<p>1. Where real estate was purchased with partnership property and was used for partnership purposes, but the deeds by which the partners held the property were executed to them as tenants in common, the deeds, as to creditors, fixed the status of the property and that status could not be changed by parol.</p> <p>2. The Second National Bank held several judgments against II. & B., jointly, and one against H. individually. The fund arising from the sale of certain real estate belonging to II. & B. sold at sheriff’s sale was referred to an auditor for distribution. Although the deed for the property sold was to H. & B., as tenants in common, it was contended’ before the auditor that as it was in evidence the property was partnership property and that the bank had notice thereof, therefore the individual judgment of H. should not be allowed to participate in the distribution, which contention the auditor and court sustained : Held, that this was erroneous.</p> <p>3. The bank could not be affected by knowledge that the property was purchased with partnership funds or was partnership property, for as to its character the deeds which were of record determined that unalterably.</p>

<p>Appeal from the decree of the Common Pleas of Lawrence county. In equity. Of October and November Term 1876, No. 48.</p> <p>This Ayas a bill in equity filed by the County of Lawrence and the Overseers of the Poor of North Beaver Township against Eli Leonard.</p> <p>The case was thus:—</p> <p>Abner Leonard, a citizen of North Beaver township, Lawrence county, about seventy years of age, died June 1st 1868, at his residence in said township, where he had lived for many years.. He left neither wife nor children. His estate consisted of real estate in the township and some personal property. His will, made in 1864, contained this provision:—</p> <p>“Whatever money may remain after the legatees are paid and the claims of the Commonwealth, if any, and my just debts, and the expenses of settling of my estate are all paid, the balance shall be put to interest in the county treasury, for ten years, of Lawrence county, and the interest yearly of it to bé applied to the support of the poor of North Beaver township. Then at that period they stop the interest, and keep all that is in treasury for the use of.the county forever.”</p> <p>Commencing in April 1870, the executors of said will paid, at different .times, into the county treasury the residue of said estate, amounting in the aggregate to about $4000, and for several years the county of Lawrence paid the interest on said money to the overseers of the poor of North Beaver township, who made claim to the same under the provisions of the will.</p> <p>In February 1875, Eli Leonard for himself and others Avho claimed to be the next of kin to Abner Leonard, deceased, filed this bill in equity, praying that the ahove clause in said will might be declared void for uncertainty and that the interest on the money paid into the county treasury from the time it was so paid for a period of ten years, should be paid to the plaintiffs.</p> <p>The county and the overseers of the township filed an answer, admitting the facts set forth in the bill, but averred,</p> <p>“ That at the time of the making of said will, there were poor persons in the said township of North Beaver, having a settlement therein, being public paupers, and a legal charge upon said toivnship, for whom the duly qualified overseers of poor of said toAvnship were providing and were supporting according to law, and that the said Abner Leonard, at the time of making his said will, ay ell knew these facts; and that at all times since the making of said will, there have been and now are poor persons, paupers, in the said township having a settlement therein, for whom the duly qualified overseers of the poor of said township have been providing.”</p> <p>The ease was argued on bill and answer, and the court decreed that the bequest was void for uncertainty and that the interest on the money for ten years should be paid to the next of kin of Abner Leonard.</p> <p>In an opinion the court said: “We think this bequest void for uncertainty as to its objects and the beneficiaries intended. The poor of the township are not described by the testator, and cannot be defined or ascertained with sufficient certainty to take or show in the testator’s intended bounty. The bequest is not vested in any one or anywhere. There is no trustee appointed by the will. Nor is there any trustee even designated by implication anywhere in the will to take the bequest and apply it. There is no discretionary power given to any one or vested anywhere to have control over the bequest or to carry it into effect by applying it to the support of the poor of the township.”</p> <p>After a review of the cases of Pickering v. Shotwell, 10 Barr 23; McGirr v. Aaron, 1 P. & W. 49; Witman v. Lex, 17 S. & R. 93 ; Zeiswess v. James, 13 P. F. Smith 465; Martin v. McCora, 5 Watts 495; Brown v. Filson, 8 Barr 335, and Missionary Society’s Appeal, 6 Casey 425, the court proceeded: “From these authorities we conclude that a charitable bequest may be sustained where the objects or beneficiaries of it are uncertain and incapable of being rendered certain, provided there is a trustee appointed or designated by the will capable of taking, with discretionary power, either express or implied, to carry the bequest or donation into effect; or where the objects and beneficiaries are defined and certain, and no trustee appointed or designated by the will, a trustee may be appointed by the court and directed by the same to carry the bequest into effect. But where the objects or beneficiaries are uncertain, and cannot in any way be rendered certain, and no trustee capable of taking the bequest or donation has been appointed or designated by the testator or donor, and. clothed with discretionary power over the bequest, gift or donation, a court of equity, will not in the exercise of arbitrary power undertake to appoint a trustee and define, describe or designate the objects, purposes or beneficiaries of the donation.</p> <p>“ The bequest is to be applied to the support of the poor of North Beaver township. Who are they ? There are degrees in poverty even. What class shall take, and who can draw the line and separate from the rest those entitled to share in the bequest; with whom begin to apply the support, and with whom leave off? This uncertainty in the beneficiaries of the bequest will render it void, unless according to the authorities cited, there is a trustee appointed or designated by the testator competent to take the bequest and clothed with discretionary power to apply it. We can find no such trustee named in the will. The executor of the will has no power over the bequest. The county treasurer has no control over it, nor have the county commissioners. Since there is no trustee, there can be no discretionary power vested anywhere by anything express or implied in the will, over the disposition of the bequest.”</p> <p>From the decree of the court this appeal was taken.</p>

107. This was an equitable ejectment by Rexford Pierce against W. G. Gardner. In 1865, Pierce advanced to Henry and Catherine Smith $1200, for which they gave him a judgment-bond upon which judgment was entered in April 1865.

54. This was a bill in equity, brought by George S. Long and his wife against John T. Perdue for an account of the profits of an oil lease and to compel a conveyance to the wife of a half interest therein. At a later stage of the cause, Melinda II. Pennock, assignee of Mrs. Long, and her husband, were made additional plaintiffs.

77. This was an action of covenant, brought by Samuel R. Hatton and Samuel P. Boyer against W. H. Johnson. The material facts were these: The Watson Petroleum Company was the owner of two lots in the city of Titusville, and by articles of agreement covenanted to sell to J. N. Pew. Pew afterwards by articles of agreement covenanted to convey to S. P. Boyer and S. R. Hatton.

105. The case was this: In December 1869, Woodworth, Craig & Oo. took out a policy of insurance against fire for five years upon their property in New Castle, in the Lycoming County Mutual Insurance Company, paying a certain sum in cash therefor, and giving their premium note for $4000. In 1870 and in the spring of 1871 two assessments made upon this note were duly paid by the insured.

<p>Appeal from a decree of the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1875, No. 106.</p> <p>This was a bill in equity, brought February 10th 1873, by Sophia Mohr against'the Lehigh Coal & Navigation Company, to compel it to replace a certain certificate of loan of the company belonging to the plaintiff, or to pay the plaintiff the value thereof.</p> <p>The bill averred that the plaintiff was the owner of a certificate of the loan of the defendant company for $2000; that the company had permitted one Yezin to transfer the loan without her authority; and that Yezin had applied the money to his own use and had absconded, and his estate had gone into bankruptcy. The bill prayed that the court should declare that the defendant participated in Yezin’s breach of trust and prayed a decree that upon assignment to the defendant of the plaintiff’s claim against Yezin’s estate in bankruptcy, the defendant should pay the plaintiff the cash value of her certificate of loan.</p> <p>The answer set up that the transfer was made by Yezin under the authority of the plaintiff.</p> <p>The master to whom the case'was referred found that in 1865 Yezin had bought for Miss Mohr the loan in question, had notified the company that the loan was bought for her and had the certificate put in her name; that the loan was transferred by Yezin in October 1870; that the alleged authority for the transfer was a letter of attorney, dated April 28th 1851, by which, it was alleged, Miss Mohr gave Charles Yezin, the elder, full power to sell and transfer her loans and to collect the interest on them, &c., with power of substitution ; that on March 4th 1853, Yezin, under this power, appointed his son Charles, as attorney in fact for Miss Mohr; and that Yezin, the elder, died in April 1853.</p> <p>There was evidence tending to show that this letter of April 1851 was a forgery.</p> <p>It further appeared that Yezin was in possession of the certificate of loan and surrendered it at the time of the transfer; that in July 1871, Yezin remitted to Miss Mohr $55.50 as interest on this loan; that Yezin had absconded in September 1871, and his estate had been placed in bankruptcy, and that Miss Mohr, before the bringing of this suit, had proved her claim against the estate in the bankrupt court. Miss Mohr was a lady of advanced age and á resident of Bremen.</p> <p>Upon the coming in of the' masteffs report, the court below made an order that the defendant should reissue to the plaintiff the certificate of loan and pay her the interest due, or should pay her 'the market value of the certificate on the day of the transfer by Yezin, with interest; and that thereupon the plaintiff should assign to the defendant her claim against the estate of Yezin in bankruptcy.</p> <p>The defendant below then took this appeal. The case was argued herein January Term 1876. On March 9th 1876, the court made this order:—</p> <p>“ It is ordered that this case be re-argued. In the meantime the counsel will be prepared with authorities to discuss the question of'the subsitution of Charles Yezin, Jr., by Charles Vezin, Sr., as attorney for the principal, of whom the latter was attorney in fact; the effect of the death of the latter upon his substitution, and the sufficiency of the evidence to establish the power from Miss Mohr to Charles Vezii), Sr.”</p>

11. This was a bill in equity, brought June 10th 1871, by Charles Wheeler and others, citizens and tax-payers of Philadelphia county, for themselves and other citizens and tax-payers, against John Rice and others, who were the commissioners to erect the public buildings, to enjoin them from erecting the buildings and to have the act under which they were appointed (approved August 5th 1870, Pamph. L. 1871, p. 1548), declared unconstitutional and void.

4, of Philadelphia county: Of January Term 1876, No. 90. Assumpsit by Henry C. Lea, a tax-payer, against Henry Bumm, the collector of delinquent taxes of Philadelphia county, to recover back the public building taxes paid by him under protest.

269. Assumpsit by Daniel S. Wagner against Pearson S. Peterson. The narr. contained the common counts. The defendant pleaded non-assumpsit, &c., and the Statute of Limitations as to the recovery of usurious interest after six months.

<p>Appeal from a decree of the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1875, No. 171.</p> <p>This was a bill in equity, brought March 81st 1875, by Walter B. Smith against Samuel A. Coyle, for the specific performance of an agreement for the sale of real estate. The bill contained this case: On October 23d 1874, the defendant agreed to buy from the plaintiff a lot of ground on Commerce street, Philadelphia, which the plaintiff then owned, for $14,000. The defendant, upon examining the plaintiff’s title to the property, refused to accept it, alleging it to be unmarketable. The plaintiff’s title was derived through Deborah Morris, who died seised of the premises, and whose will, duly proved in 1793, contained this clause:—</p> <p>“ Item: I devise to Elizabeth Shoemaker, for and during her natural life, all my present mansion or dwelling-house and half the garden lot contiguous thereto, with the westernmost frame house in Parmer’s alley, the adjoining tenement now in the tenure of Jacob Foster, and my chair house and stables, subject to the payment of 20?. per annum to my niece, Mary Jones, daughter of my brother James, during the natural life of said Mary, and also subject to the ground-rent of 50s. per annum now payable thereout; and from and after the decease of the said Elizabeth Shoemaker, I devise the same to Sarah Powell Buckley, daughter of my niece Sarah Buckley, during her natural life; subject to the payment of the said annuity to Mary Jones, and also subject to the payment of 12Z. per annum to her-mother, Sarah Buckley, during the natural life of the said Sarah Buckley. And from and after the decease of the said Sarah Powell Buckley, then I devise the same to the lawful issue of the body of the said Sarah Powell Buckley begotten who shall be living at the time of her death, equally to be divided between them as tenants in common and not as joint tenants, subject however to the payment of the aforesaid annuities and ground-rent, and also subject, from the expiration of said annuities, to an annuity of 12i. per annum payable thereout annually for ever to the overseers of the public school founded by charter in the town and county of Philadelphia, for the use of the Free Negro School in the city of Philadelphia under the care of Friends: And if the said Sarah Powell Buckley shall die without issue, then I devise the same to my nephew, Jonathan Jones, the late husband of my beloved niece Mary Jones, his heirs and assigns for ever, subject to the aforesaid annuities and ground-rent.”</p> <p>Elizabeth Shoemaker, Mary Jones and Sarah Buckley died long before the bill was filed. Sarah Powell Buckley also died before the ’ bill was filed, leaving certain issue, the title of all of whom was well and sufficiently vested in the plaintiff. The yearly ground-rent and perpetual annuity of 12i. mentioned in the above clause of the will had also been paid off and discharged. The bill further averred that in March 1875, the plaintiff, to remove all doubts as to whether the will had vested an estate for life only in the issue of Sarah Powell Buckley, with remainder in tail to her, with remainder in fee to Jonathan Jones, had obtained from the heirs of Sarah Powell Buckley, then living, a deed to bar the alleged entail and confirm the premises to him in fee.</p> <p>The defendant demurred to the bill. The court below was of opinion that the issue of Sarah Powell.Buckley living at her death took a fee by implication from the devise over to Jonathan Jones in fee, though the estate was .limited to them without words of inheritance, and decreed the performance of the contract, whereupon the defendant took this appeal.</p>

<p>1. It is a well-settled rule in Pennsylvania that where equity would reform or set aside a written instrument on the ground of fraud, accident or mistake, parol evidence is admissible (except in the case of commercial paper), to contradict or deny the terms of a AArritten agreement.</p> <p>2. Where therefore it was shown that a mortgage sued upon was given Avitb the express understanding that it should be drawn three years from date; rhat the defendant discovered that the mortgage was drawn payable in one year instead of three; that she remonstrated with plaintiffs about it and they agreed, upon defendant signing it, that it should he considered as for three years and not be enforced before the expiration of that time, and that induced by this agreement defendant consented to sign said mortgage, evidence of this contemporaneous agreement should have been admitted, and it was error to withhold it from the jury.</p> <p>3. To pave the way for the admission of such evidence it is not necessary to prove a party was actuated by a fraudulent intention at the time of the execution of the writing, for although his original object may have been honest and upright, if to procure an unfair advantage he subsequently denies the parol qualification of the written contract, it is such a fraud as will operate to let in evidence of the real intent and conclusion of the parties to the instrument.</p>

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1875, No. 198.</p> <p>This was assumpsit by the Keystone National Bank, the holder of a promissory note, against Alfred J. Royer and others, makers of the note; the note was drawn to the order of one Yost and by him endorsed. Judgment was entered below for want of a sufficient affidavit of defence. The opinion of the court gives the substance of the affidavit.</p>

<p>1. A balance due on'a subscription to stock of a corporation is attachable as other debts are.</p> <p>2. If there be a lien on the stock or a liability of the stock to others which may be set up as defence the subscriber must set it up in his relief, otherwise his subscription is attachable.</p> <p>3. In cases of attachment execution the right to a separate trial by several garnishees is not of absolute right, but is a matter of discretion for the court, subject to review if that discretion is unjustly exercised.</p>

3, of Philadelphia county : Of January Term 1875, No. 199. Debt by Thomas B. Wattson and another against the Chester and Delaware River Railroad Co., to recover the amount due for land taken and occupied by the company for railroad purposes. The action was originally brought in Delaware county and was removed to Philadelphia county by the plaintiffs in September 1874, under the Acts of 14th April 1834 (Pamph. L. 395), and 28th April 1870 (Pamph. L. 1292).

128. Assumpsit by John T. Audenreid and others, trading as Audenreid, Norton & Co., against the Philadelphia Trust, Safe Deposit & Insurance Company, trustees under the will of William Richardson, deceased. A case ivas stated for the opinion of the court, with leave to either party to sue out a writ of error in the same manner as if a judgment had been entered on a special verdict. The plaintiffs are commission coal merchants in the city of Philadelphia.

101. This was the appeal of William Moss, M. D., and others, who were the residuary legatees of the estate of Henry Lazarus, deceased, from a decree of distribution in the account of Luden Moss, an executor and trustee under the will of decedent. Deceased died in 1868, possessed of one hundred shares of the stock of the Pennsylvania Company for Insurances on Lives and Granting Annuities. The executors did not sell this stock. By Act of April 3d 1872, Pamph.

<p>1. A policy of insurance provided that proofs of loss should bo sent to the office of the company within thirty days after a fire; and another clause of the same policy provided that no condition of the policy should be waived except by a general officer of the company by writing endorsed on the policy. After the property insured had been destroyed by fire, the secretary of the company notified the insured that the company would replace the property destroyed, and unwarrantably interfered with the agent of the insured in making out the proofs of loss, directing him not to complete them; the proofs wore consequently not sent in within thirty days; the company did not replace the property. Held, that these facts made out evidence of a waiver of the condition requiring proofs of loss within thirty days, and that the facts were for the jury.</p> <p>2. The policy further provided that a failure on the part of the insured to notify the company of any mortgage on the property would avoid the policy. There was a mortgage on the property (of which the company never had actual notice) when it was insured in February 1872; in October 1872, the company insured the interest of the mortgagees under this mortgage in the premises, and in February 1873 renewed the first policy. Held, that the above facts were enough to warrant a finding that the company knew of the mortgage when they renewed the first mortgage, and’ that the question of knowledge was for the jury,</p> <p>3. In an action on this policy, the narr. averred a waiver of the condition requiring notice in thirty days; the defendant went to trial on this narr., and objected, on the ground of variance, to any evidence tending to show a waiver of this clause in any way except that provided in the policy, i. e., by endorsement on the policy. Held, that the general allegation of waiver in the narr. was sufficient to support proof of a waiver in any way. Held, also, that il the defendant chose to go to trial on a narr. technically objectionable, it thereby waived the defect.</p>

1, of Philadelphia county: Of January Term 1876, No. 67. This was assumpsit, brought by John J. Dovey against Abraham W'. Rand, upon the following note:— “$3750. Philadelphia, September 14th 1874. “ Two months after date I promise to pay to the order of A. W. Rand, Esq., thirty-seven hundred and fifty dollars, payable at 432 Walnut street, without defalcation.

3, of Philadelphia county: Of January Term 1876, Nos. 139 and 140. These were two writs of scire facias sur mortgage, issued by John McCurdy, assignee of Alexander Smith, against Charles M. S. Leslie and Charles E. Johnson, terre-tenant, to recover the principal and interest on two mortgages of $300Ó each, made by Leslie on the 9th of April 1869, to Alexander Smith, and by him assigned, on the 2d of December 1871, to McCurdy, the plaintiff.

<p>Error to the Court of Common Pleas of Philadelphia county: Of January Term 1877, No. 49.</p> <p>Assumpsit by H. H. Kelley against A. Hart, Pincus, Faucett, Sauter and Clarence A. Hart, for work and labor alleged to have been done about the defendants’ property, as shown by the copy of book entries filed.</p> <p>The defendant, 0. A. Hart, filed an affidavit of defence, as follows:—</p> <p>“ That neither he nor any one for him, either individually or in partnership, or jointly with others, obtained from the plaintiff the work and materials charged for in this suit, nor is he indebted to the plaintiff on any account whatever.”</p> <p>Afterwards, by order of court, he filed a supplemental. affidavit, as follows:—</p> <p>“ That he has a full defence to the whole of the plaintiff’s claim, the nature of which is as follows: That he is informed and believes that, prior to December 13th 1875, one Edward Pincus and one Hiram W. Faucett became co-partners, trading under the firm-name of the International Restaurant and Hotel Company; that on December 13th 1875, the said Pincus and the said Faucett, so trading, leased the premises No. 1220 Chestnut street, in the city of Philadelphia, for the purpose of carrying on at that place the business of a hotel and restaurant; that in order to properly fit up the said premises for the proposed business, considerable plumbing work was necessary to be done, and the said Faucett and the said Pincus, so trading as aforesaid, agreed with the said plaintiff, that he, the said plaintiff, should do the work; that the said plaintiff, being unwilling to do the work on the credit of the said Faucett and Pincus, required better security, and it was agreed that Abraham Hart should become responsible; that thereupon, and in pursuance of the said agreement, the said plaintiff did work and furnished materials to the premises 1220 Chestnut street, which work and materials constitute the greater portion of the plaintiff's claim in this case, to wit: the items charged between December 16th 1875, and about February 25th 1876; that this deponent had nothing to do with the said agreement, nor with the ordering of said work, nor did he ever assume to be a partner with the said Faucett and Pincus, or hold himself out as such, nor was the work done on his credit in any manner, but on the contrary thereof the said plaintiff well knew that the lease of the premises in which he was making the fixtures for which he claims, was in the said Pincus and Faucett, in whom the same has remained from that time hitherto; that after the completion of the work by the plaintiff, he presented his bill, and received for the amount thereof, $500 in cash, and the promissory notes of Abraham Hart for the balance, which is the amount claimed in this suit; that he, the plaintiff, accepted said promissory notes of said Abraham Hart, and brought suit thereon against the said Abraham Hart, in the Court of Common Pleas, No. 4, of this county, to June Term 1876, No. 947, and recovered judgment against said Abraham Hart in said suit, which suit and judgment were for the same matters as this present suit.</p> <p>“ That the only connection this deponent ever had with the other defendants, in the matter of the International Hotel and Restaurant, was the following: That sometime after the agreement between Eaucett and Pineus on the one hand, and Kelley on the other, and when the greater part of the work contracted to be done by the said plaintiff, Kelley, had already been done, to wit, on or about January 7th 1876, this deponent of one part, with Edward Pineus, Paul Sautter and Abraham Hart,'signed an agreement, erroneously dated December 13th 1875, with the aforesaid Hiram W. Eaucett of the other part, wherein and whereby he, the said deponent, and the parties joining with him, agreed to furnish the said Eaucett of the other part, as a loan, such amounts as might be necessary to carry on the business at 1220 Chestnut street for one year, in compensation for which loan the said deponent, and the parties joining with him, were to receive, in lieu of interest, three-fourths of all net profits; that this deponent, immediately after the signing of the agreement, found that he would be unable to furnish any money to the said Faucett and Pineus, and hence refused to act under the agreement; that he furnished no money to the said Eaucett and Pineus, nor did he ever receive any profit or advantage from the business, nor did he ever perform any act whatever under the said agreement, but on the contrary thereof, immediately after the execution of the said agreement, the same was rescinded by the parties thereto, so far as this deponent was concerned; that subsequently, to wit, on March 23d 1876, this deponent, being thereunto requested, acknowledged this rescission in writing, by an instrument written on the same paper whereon the previous agreement had been written, acknowledging that all the interest he, the said deponent, had had in the International Restaurant, had been theretofore disposed of to the said Pineus, Sautter, and Abraham Hart; that copies of said agreement and acknowledgment are hereto annexed, marked ‘A’ and ‘ B’ respectively. * * *</p> <p>“ That this deponent was not, at any of the times at which the work and materials claimed for by the plaintiff were done and furnished, in partnership with the other defendants, nor did he, or any one for him, either individually or in partnership with any one else, order, procure, or receive any of the said work and materials, nor is he indebted to the said plaintiff in any manner, or on any account whatever. ’</p> <p>A.</p> <p>“ Whereas, Hiram W. Eaucett, of the city and county of Philadelphia, and state of Pennsylvania, having the knowledge and ability to organize and manage the business under the name and title of the International Restaurant and Hotel Co., for which purpose the said H. W. Eaucett and Ed. Pineus have leased the property No. 1220 Chestnut street, and that he, the said H. W. Eaucett, agrees to give his personal attention to the successful management and development of the business, for the purpose of promoting its character and making it profitable: It is therefore agreed between the said Hiram W. Faucett of the first part, and Ed. Pincus, C. A. Hart, Paul Sautter and Abm. Hart, all of the city of Philadelphia, and state of Pennsylvania, of the second part, — that the party of the second part will furnish such amounts as may be necessary to carry on the business for one year at 1220 Chestnut street, on the terms as follows :—</p> <p>“ That the party of the second part shall be entitled to receive three-fourths of aH net profits, and the said party of the first part, the other one-fourth part of said net profits, but before any party, either of the first or second part, shall be entitled to receive any dividends of profits, the sum or sums loaned or furnished by the party of the second part, or any one of them, shall first be returned or paid back to said party of the second part, after which the profit to be divided shall be as follows: One-fourth of the whole of net profits to Hiram W. Faucett, and the remaining three-fourths of said net profits to be divided equally, share and share alike, to said Paul Sautter, Eli Pincus, C. A. Hart and A. Hart, party of the second part.</p> <p>“ It is also understood and agreed by and between all the parties to this agreement, that the restaurant shall be carried on at the premises No. 1220 Chestnut street, by Messrs. Faucett, Pincus and Sautter, who will each use their best undivided exertions and influence to make it profitable, without any further remuneration than the interest they have in the undertaking.</p> <p>“ It is further understood and agreed that all sums to be received under this agreement shall be paid to A. Hart, one of the party of second part, who shall also receive the daily amount of sales, and make all disbursements, and out of the net profits, as soon as any may be set aside, the said A. Hart shall return to each party of the second part the sum or sums so furnished, before any dividend of the profits shall be made.</p> <p>“ The c'ost of fitting up the said premises, as well as all outlay for furnishing, &c., shall be considered as expenses to be first deducted, and moneys borrowed or furnished returned before dividing any profits.</p> <p>“Witness our signatures, this 13th day of December 1875.</p> <p>“Witnesses present: H. W. Faucett,</p> <p>“J. B. Bush, E. Pincus,</p> <p>“James A. Moss. Paul Sautter,</p> <p>Clarence A. Hart,</p> <p>A. Hart.”</p> <p>B.</p> <p>“Whereas, The within-named Clarence A. Hart having disposed of all his interest in the International Bestaurant and Hotel Company to Edward Pincus, Paul Sautter and Abraham Hart, — they will therefore each be entitled to one-fourth interest in the whole, instead of one-fourth of three-fourths, as stipulated in the foregoing articles of agreement.</p> <p>“Philadelphia, Pa., March 23d 1876.</p> <p>“Witness, Clarence A. Hart,</p> <p>“ G. B. Brown, Jr. „ H. W. Eaucett,</p> <p>Paul Sautter,</p> <p>A. Hart,</p> <p>E. PlNCUS.”</p> <p>The court below entered judgment for want of a sufficient affidavit of defence; whereupon C. A. Hart, one of the defendants, brought this writ of error, assigning this judgment for error.</p>

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of July Term 1876? No. 123.</p> <p>Assumpsit, by the Columbia Insurance Company, against John Buckley, James Johnson and Charles Scott, trading- as John Buckley & Co., in which.the following case was stated for the opinion of the court:—</p> <p>The plaintiff, a mutual fire insurance company, incorporated by Act of General Assembly, approved February 27th 1860, Pamph. L. 1860, p. 81, insured the property of defendants, on the 9th day of September 1871, for $3000, for five years, receiving in consideration a cash premium and a premium-note, of which the following is a'copy:—</p> <p>“ $1350. For value received in policy No. 30,508, issued by the Columbia Insurance Company, we promise to pay said company the sum of thirteen hundred and fifty dollars and — cents, in such portions and at such times as the directors of said company may, agreeably to their act of incorporation, require.</p> <p>“wX8Tl.0il</p> <p>On the 10th day of May 1873, the directors of the company made an assessment upon the defendants, in due form and according to their act of incorporation, for the sum of $81, payable on or before July 1st 1873; for which amount immediate demand was made, and notice of the assessment given. This assessment has never been paid. Among the conditions of the policy of insurance was the following: “Whenever an assessment has been made by the directors of this company on the premium-notes of its members, if the amount assessed on the premium-note given on this policy is not paid within thirty days from the time the same is demanded by said company, then this policy shall be void. Rut the said company shall have a right to collect the amount due on said assessment.”</p> <p>On the 12th day of January 1874, the directors of the company madé another assessment of $81 on defendants, payable March 1st 1874, and made immediate demand for the same.</p> <p>If the court be of opinion that the non-payment of • the first assessment within thirty days after demand (in view of the above quoted condition of the policy) made the same absolutely void as against the plaintiff, so that the second assessment could not be lawfully made, then judgment to be entered for the plaintiff for the amount of the first assessment only, with interest from the time the same was due. If the non-payment of the first assessment did not have such effect, then judgment to be entered for the plaintiff for the amount of both assessments, with interest from the time they were respectively due. Either party to have the right to sue out a writ of error.</p> <p>The court entered judgment for the plaintiff for the amount of the first assessment only, and the defendants took this writ, assigning this entry for error.</p>

<p>1. In an action by a mutual insurance company to recover assessments made on a premium-note of defendants, the record of a former suit between the same parties for other assessments, where it did not disclose the particular facts for which it was oifered, was properly rejected.</p> <p>2. It was proper to reject evidence that defendants had paid a certain cash premium and the rate was tlie same as that charged to others when no premium-note was required. Being a mutual company the fact that a less sum was paid at the time of insurance would not prevent an assessment of lai’ger sums to pay subsequent losses.</p> <p>3. Notice to the agent through whom the insurance was effected, that the defendants did not wish to be longer insured in the company, could not destroy the insurance relation, nor was notice of their desire to such an agent notice to the company.</p> <p>4. Evidence was offered to show that no suits had been brought for losses during the time in which these assessments were made, and that by the terms of the policies issued there were no losses in that time for which the company could legally make an assessment. Held, that the first part of the offer was clearly inadmissible, and the latter part too vague in its terms.</p> <p>5. The defendants averred that before.the company could recover, it must prove that the losses occurred during the time when defendants’ policy was m force. By a provision of the act of incorporation, “ where an action is brought for the recovery of the assessment on a premium-note, the certificate of the secretary specifying the assessment and the amount due on such note by means thereof shall be taken and received as primá facie evidence thereof in all courts of this Commonwealth.” Held, that it was the manifest design of the statute to make the certificate primá facie evidence that the necessities of the company justified the assessment, and that it was duly and legally made, in the absence of proof to rebut this presumption.</p> <p>6. The insured was entitled to notice of the assessment before suit brought, and where it was disputed whether such notice had been given, it was error for the court to take this question from the jury and to decide upon its sufficiency.</p> <p>7. It was error in this case to peremptorily direct the jury to find for the company.</p>

<p>[This case was argued upon the same day, and by the same counsel as in the preceding one. The facts, also, were substantially the same.]</p>

<p>1. A collection agency employed to collect a claim, who place said claim in the hands of an attorney, through whose misconduct it is lost, are liable therefor in the absence of an express stipulation to the contrary in their receipt given for the claim.</p> <p>2. where a claim was lost through the misconduct or fraud of an attorney with whom a collection agency had entrusted it for collection, and the replies of the agency to inquiries made were calculated to throw the claimants off their guard, the Statute of Limitations only begins to run against the claimants from the time of their discovery of the fraud.</p>

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1875, No. 110.</p> <p>Covenant 'by Robert H. Adams against E. Bradford Clarke on an alleged guaranty of the covenants contained in an indemnity bond given to Adams in the dissolution of a partnership between Adams, Percival and Morrison. The pleas were “non est factum”' and “non infregit eonventionem.” The facts are sufficiently set forth in the opinion of the court. There was a verdict for the plaintiff; the defendant, after judgment thereon, took this writ of error, assign-, ing for error the rejection of his testimony; as shown in the opinion of the court.</p>

<p>1. Testator devised and bequeathed all his estate to his executors to divide the same into four parts, one to go to his son Charles, and the remaining three to be invested, one for his son J., and the other two for his daughters. H. and S. respectively, each to have the interest and income of these several shares during life, and upon the death of either, the share of the decedent was bequeathed to his or her surviving children. But if either should die without leaving surviving children or the issue of a deceased child or children, then he directed the interest or income of the share of the decedent to be divided among the survivor or survivors of them, the said J., II., and S., and the issue of such as may be dead. Held, that it was the intention of the testator, that his grandchildren, if any such there might be, should take the corpora of these funds after the death of their parents, but should there be no grandchildren, then the parent was to be substituted and take the corpus of the bequest.</p> <p>2. The bequest of the “ interest and income” of a share was a bequest of the share itself.</p>

<p>1. The Act of 11th April 1867 (regulating the carriage of baggage) does not apply where baggage is carried by a foreign corporation in another state.</p> <p>2. It is well settled that the place of the performance of a contract gives the law of its performance.</p> <p>3. B. bought a ticket from Philadelphia to Atlantic City, New Jersey, from the C. & A. Bailroad Company, a New Jersey corporation operating a railroad between those two places, and delivered his trunk to the company at Philadelphia to be taken to Atlantic City; the trunk was lost by the company, but it did not appear where the loss occurred. Held, in an action by B. to recover the value of the trunk and its contents, that as the contract was to be performed in New Jersey, by a New Jersey corporation, the Act of 11th April 1867 did not apply. Held, that the negligence of which the defendant was guilty was in the exercise of its franchise as a New Jersey corporation, and that its liability was to be determined by the law of that state. Held, also, that it made no difference that the undertaking was, in part, to carry the baggage across the Delaware river, as the inhabitants of both states have equal rights of navigation and passage on that stream.</p> <p>4. A person who sends baggage by a common carrier is not bound to declare its value unless required to do so, and in the absence of proof to the contrary this will be presumed, in an action in the courts of this state, to be the rule of law in New Jersey.</p> <p>5. Per Shaeswood, J. — A different rule would perhaps be adopted, had the plaintiff attempted to carry merchandise under the guise of luggage.</p>

<p>Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1876, No. 260.</p> <p>Assumpsit by Samuel, Daniel and James Boyd, trading as Samuel Boyd & Co., against 0. Howard Wilson and James Stewart, Jr., trading as Wilson & Stewart, on a promissory note of defendants to the order of plaintiffs for $2720, payable three months after date.</p> <p>Defendants pleaded non-assumpserunt, payment with leave, &c.</p> <p>At the trial, on the 25th of February 1876, the following were the material facts disclosed:—</p> <p>On the 24th of December 1874, Henry F. Neiman, a merchandise broker, who was commissioned by the plaintiffs to sell a lot of 850 cases of canned corn, “ King’s brand,” called upon the defendants for the purpose of effecting a sale, and exhibited to them a can of corn. Defendants requested two more' cans to take ^home and try, and two cans were furnished them, which, after trial, they pronounced “ good, sweet, white corn, sound in .every respect.” The defendants then offered $1.60 per dozen for the whole lot, in a note in ninety days, which the plaintiffs accepted. The defendants received the first delivery of corn on the 29th of December 1874, and other portions of it at different times until they had received 768 cases. In January the firm commenced to sell the corn to the trade, and shortly thereafter it began to be returned to them with complaints about its quality, when it was discovered that some of the com was not like the sample, and the sale of it was stopped 'in consequence. Several parties had returned the corn, and when opened some cans corresponded with the sample while others were bad, and when cooked the corn was found to be sour, greasy and unfit for food. The defendants complained about the quality of the corn, and asked the plaintiffs to take back the balance remaining on hand, which they refused to do. All but 82 cases of the original 850 had been delivered to defendants, and this balance, after the protest of the note, plaintiffs forwarded to defendants, but they declined to receive it. It appeared that “ King’s” brand of corn was not the best in the market and did not command so high a price as some other brands. It was in evidence, also, that there is no indication or test whereby bad corn can be detected other than by the cans being-swollen by fermentation, and it was not shown that these were.</p> <p>Samuel Boyd, one of the defendants, testified, “ the broker said all the bad corn was to be taken back and the money returned,” but the broker himself testified, “ I did not say to defendants all the bad corn was to be taken back and the money refunded; there was no representation or guarantee as to the corn. I told defendants if there were any swelled cans they could be made good; aside from that I made no representation or statement. * * * I am certain I did not say that if there was any Had corn it would be made good, because I never use that expression; I always say ‘ swelled heads will be made good.’ ” There ivas no other evidence of fraud or warranty. It was attempted to be, but not satisfactorily, shown that it was the custom of the trade to return defective corn and to have the money refunded.</p> <p>The following are portions of the charge of the court (Briggs, J.) to the jury :—</p> <p>“ [I do not see in the case anywhere any evidence of warranty as to quality, or any evidence as to fraud on the part of the plaintiffs. I say I do not perceive any evidence, anywhere in the case that would justify me in submitting those propositions, viz.: of warranty or fraud to you.] I do not discover a,ny evidence of warranty, or any evidence of fraud, unless the proposition as contended for by Mr. White be correct, that the goods being sold by sample, amounts in itself to warranty. With regard to that, in order that the case may be put squarely arid fairly, so as to protect the rights of both parties — and I have got to meet the question emphatically on the one side or the other — [I say to you that sale by sample is not a warranty.] Now, I cannot put it more squarely or more fairly than that. I will give you the reason that has led me to the conclusion that I have just enunciated, and I will take as the best and most fitting illustration the very case that we have before us. There áre eight hundred and more cases of corn, sealed beyond the power of human vision to determine the quality of the contents of the cans, except the heads be bulged by fermentation of gas, or burstedby swelling. A broker, approaches a dealer and announces the fact that he has these eight hundred cases of corn for sale. The dealer says, “Give me a can.” It is brought; it is opened; it proves to be good. The dealer says, “ Send me two others, one that I may take home to my family and the other that I may give to my brother. ” The broker does so; and the dealer takes them home and the quality proves satisfactory. Now, this, as I understand, was all that was done in this case. That is what is called a sample. Was there any fraud in the selection of these three cans? Were they taken from the eight hundred cases, not selected expressly with a view to the fair presentment that would be exhibited to the eye when opened, but selected — if I may use the expression here — haphazard — selected by chance. No studied effort to get these three, but picked indiscriminately out of the cases — the eight hundred cases. If they were thus selected, then there was no fraud in the selection. It was fair; and because there was no fraud, and because it was fair, the transaction of the parties is legal. How did the broker know ? How did the parties who desired the broker to sell know, if the heads were not bulged, that the corn was not good ? There is no fraud where the purchaser has the same means of ascertaining the contents of a thing that the seller has. Both stand exactly upon the same level, upon the same equality. And why should one man, in view of such circumstances, or one party to a transaction have an advantage over that of another in the transaction ? This is the reason that leads me to the legal proposition that I have already enunciated. And henee I will say to you that this sale by sample is not'in itself a warranty.</p> <p>“ If, to illustrate, there were two lots of this corn of the same brand, or bearing the trade mark or impress of the same maker, one was inferior to the other; or, if you please, of the same grade, I don’t care if they were of different lots, the broker was bound, and the principal whom he represented was bound to send, in filling the order of purchase, the balance of the cans from which the samples were taken. He would not be justified in going into the other lot. [Suppose that one lot was inferior to the other, and was known to be such, the selection of a can for a sample from the good lot, and then to fill the contract from the bad, would be fraud; and that would create a'liability in such a contingency.]</p> <p>“ I have used this as a mere figure for illustration. [There is no evidence in the case that there were two lots.] I have used it simply for the purpose of. illustrating a case where fraud might come in. There is no evidence in the case, that I perceive, of warranty or fraud.</p> <p>“Well, it is said that there is a custom prevailing amongst dealers in canned fruits, that if the fruit proves defective or of inferior quality, that then the purchaser, by force of that custom, is not bound to pay for it. It may be returned and the money obtained, or a sound commodity substituted in its place. Now, in order to make a custom good, it must be reasonable; it must be certain; it must be universal, so far as the given department of business is concerned; and it must be continuous, and so thoroughly established, that every man in the trade, possessing ordinary prudence and intelligence, knows of it. And if it does not come up to this standard it is not a good custom, and amounts to nothing. [Now this is the definition of a custom that you are to apply to the testimony in this case: If it is positive; certain; continuous; known to all the trade; uncontradicted, then it is a good custom, and the defence to this extent would avail. If it does not come up to this standard, then it fails, and would not amount to a defence. Whether there is a custom, in view of this testimony, you have got to work out yourselves.] Suppose, therefore, you do find that this is the custom, then you will pass to the consideration of ascertaining from the evidence, as best you can, what proportion of these cans is bad; that you have got to ascertain, because, according to the custom that is alleged here, the plaintiffs are only to take back the bad ones or substitute in their place good ones. Hence you see the difficulty in discussing this question. Here are sealed goods, the quality of which cannot be determined until they are opened. I have no doubt, the regard that men generally have for their reputation as dealers, would compel them, rather than lose a customer, to take back the goods; I have no doubt of that. But that does not create a legal liability; it is a gratuitous as well as a generous piece of conduct on the part of the dealer, rather than lose a customer.</p> <p>“ [If you find, as I said before, the custom to be a good custom, in view of what I have said, the defendant would be entitled to a rebate, or a deduction, to the extent of the value of the bad cans ; and he must show the extent of the defect. As he undertakes to show they are bad, the evidence, somewhere in the case, must give you a standard of calculation by which you can reach the result or aggregate in dollars and cents.”]</p> <p>. In reply to a request to charge the jury “ that the verdict should be for the plaintiffs,” the court said:—</p> <p>.“[That I decline for this reason: There are two witnesses that testify one against the other. A witness for the plaintiff said, at the time the broker sold these goods, he stated he would take back the defective cans. The broker himself takes the witness stand, and he testifies that he made no such representation. If he did, then, independent of the question of warranty, the plaintiff would be bound to take them back, because it would be an element running right into the contract itself. It would be in the contract; and hence I cannot affirm this point. If you find that he did so agree to take them back, he would be bound to take them back. ' If lie did not, then he is not bound to take them back, except for the consideration that I have alluded to; that is, the custom.”]</p> <p>The verdict was for the plaintiffs for $2874.32, upon which judgment was entered.</p> <p>The defendants took this writ and the errors assigned, inter alia, were the foregoing portions of the charge in brackets.</p>

<p>Certiorari to the Court of Quarter Sessions of Philadelphia, county: Of July Term 1875, No. 55.</p> <p>This was a proceeding to open Jackson street from Thirteenth street to Movamensing avenue, in the city of Philadelphia. The petition of citizens, filed December 6th 1873, asked the court for a jury to view and lay out said street as laid down by the Board of Survey on the plan of the streets of the city of Philadelphia.</p> <p>By the report of the jury, made on the 23d of February 1875, it appeared that their first meeting was held on the 28th of September 1874, at which an adjournment was had to the 5th of October 1874, when, after viewing the ground and hearing the testimony for and against the proposed opening, the jury found that there was a public necessity for the laying out and opening said street as located and laid down on tire plan of the city by'the Board of Survey.</p> <p>This report was filed on the 23d of February 1875. A second report was filed on the same day, which set forth, “ that in accordance with the Act of Assembly (Act of 1874) they proceeded in the discharge of the duties required by said act to endeavor to procure from the persons over whose land the said street was located, releases from all claims Avhich might arise by the opening of the same, and failing to secure such releases they proceeded to assess the damages, * * * and, after due consideration, taking into account the advantages accruing by the opening of the street, they are unanimously of the opinion, and so report, that by said opening no damages will be sustained by any of the parties claiming before the jury or by any of the parties over Ayhose ground said street is located.”</p> <p>To this report MacGregor J. Mitcheson filed a number of exceptions, among Avhich was the following-</p> <p>That the provisions of the Act of May 14th 1874, Pamph. L. 164, are not applicable to this case, and were improperly followed by the 'petitioners and the jury, and that the provisions of said act refer, in'terms, to persons appointed to “ view and review any public road or bridge,” and not to streets in the city of Philadelphia, as to which separate and distinct legislation has been provided.</p> <p>The court (Hare, P. J., Mitchell and Pratt, JJ.) dismissed all of the exceptions, and from this decree this appeal was taken.</p>

<p>Error to the Court of Common Pleas, No. 1, of P'hiladetpMa county : Of July Term 1875, No. 111.</p> <p>This was an action on the case, brought by George R. Orr and-wife against the Philadelphia Hydraulic Works Company, to recover damages for the death of their child, which they alleged resulted from the negligence of the defendants, who pleaded “Not guilty.”</p> <p>At the trial before Biddle, J., it appeared that the defendants were the lessees of a factory on Evelina street, below Third street, in Philadelphia. Along this factory, on the west side and between it and an engine house, is a ten-feet-wide alley or cartway, used by defendants and the other occupants of the factory for the purpose of receiving and shipping goods. This alley was not a thoroughfare, and at its entrance were gates, which, were opened and shut as necessity required, and upon which were posted “ Private,” and “No admittance.” Inside of the gate, about twenty-four feet up the alley, is erected, to lean against the engine house wall, a large platform, weighing about eight hundred pounds, which, when in use, falls across the alley or cartway, and when not in use is thrown back against the engine house wall, upon hinges, upon which it moves-, about thirteen inches from the wall. The platform belongs to the defendants, and is used by them to facilitate the loading and unloading of their materials and goods. It had been usual to raise and lower it by means of block and tackle and a rope drawn through a staple in the wall; but at the time of the accident from which this suit arises, there was no fastening, and the platform,, therefore, was only kept in place by its slight inclination against the wall, and was liable to be tilted over whenever touched.</p> <p>On the 17th of December 1873, about one o’clock in the day, a son of the plaintiffs, about six years of age, was playing on Evelina street, which is a public street and considerably frequented. He strayed, with several companions about his own age, into the alleyway, the gates of which were open. While at play under it, the platform fell upon the children, all of whom were more or less injured, the son of plaintiffs having his back broken, from which injury he died after an illness of several -weeks. No one saw the accident, and it was first discovered when the outcry of the children was heard, four of whom were found under the platform, which, when let down, descended to within eighteen inches of the ground.</p> <p>While it was shown that the defendant had instructed its employees to keep the gates shut, and it was in evidence that they were, on the day in dispute, left open by the driver of a wagon who had brought goods to one of' the sub-tenants of the factory, it nevertheless appeared that the gates were ordinarily more frequently open than shut. »</p> <p>The defendant asked the court to instruct the jury, “ That if the jury find that this passage-way was not a thoroughfare, but private property, lawfully used only by those having business with the factory, and that the plaintiffs’ son was a mere trespasser, their verdict should be for the defendant.”</p> <p>The court answered that “ a child cannot be treated as a trespasser or wrongdoer.”</p> <p>They then asked the court to instruct the jury “ That there was no contract, and no public or private duty on the part of the defendant that their premises should be in a different condition from that in which they were, and the verdict should therefore be for the defendant.”</p> <p>The court answered: “ Persons who hold premises opening on public thoroughfares must use them in such a way as to protect those who might accidentally stray upon them.”</p> <p>The court then left it to the jury as a question of fact, upon the evidence, to find whether the defendant had been guilty of negligence in respect to the condition or character of the platform, as well as whether the defendant was bound to keep the gate fronting on Evelina street closed.</p> <p>The verdict was for the plaintiffs for $1625, and the defendant took this writ, assigning the foregoing instructions of the court for error.</p>

<p>Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1875, No. 138. ’</p> <p>This was the appeal of Henry Baltz, executor of John Haas, deceased, from the decree of the court making distribution of the estate of Ohristianna Haas, deceased. .</p> <p>Ohristianna Haas, who was the wife of John Haas, took out a 'policy of insurance on the life of her husband for $1500 in the American Life Insurance Company of Philadelphia. The amount of the policy was made payable “to Ohristianna Haas, wife of said John Haas, her executors, administrators and assignees, within sixty days after the notice and satisfactory proof of the death of the said John Haas.” Ohristianna died in 1868, leaving her husband and two sons, both of whom are living. After the death of Ohristianna Haas, John Haas married Magdalena Haas (now Deginther).</p> <p>In 1871 John Haas died, leaving a will, in which he gave to his wife one-third of his estate, “except the $1500 which was left to my two sons by their mother, Ohristianna Haas.” Magdalena Deginther refused to take under this will of her husband, and before an auditor appointed to distribute the estate of Ohristianna Haas, she, through the executor of John Haas, deceased, claimed that the estate of the latter was entitled to one-third of the amount of the policy.'</p> <p>The auditor rejected this claim and awarded the fund to the children of John Haas and Ohristianna Haas, on the ground that, the policy of insurance not being payable until after the death of John Haas no property in said policy or proceeds could vest in said John Haas at the death of Ohristianna Haas, and as the -claims of Magdalena Deginther depended upon that of John Haas her claim, also, must consequently fail.</p> <p>Exceptions were filed to this report by the executor of John Haas, alleging that the auditor erred in not awarding one-third of the proceeds to the estate of John Haas, deceased, which exceptions the court dismissed and confirmed the report.</p> <p>From this decree this appeal was taken.</p> <p>The appeal was improperly taken in the name of Magdalena Deginther, but by agreement of counsel it was considered the appeal of the executor of John Haas.</p>

<p>1. Upon the termination of a trust where the real estate remained unsold and the commissions on the rents were not an adequate compensation for the care and management of the estate, an amount proportionate’to the trouble and responsibility incurred was taken from the corpus of the estate and paid to the trustees.</p> <p>2. Trustees had the care and management of an estate consisting of city and suburban property for nineteen years. The character of the property was such that it required attention and involved trouble and responsibility. At the expiration of the trust, the real estate, which was valued at $204,000, remained unsold. The commission on the rents received by the trustees amounted to only about $200 per year. Held, that $2000 as additional compensation for their care and management of the estate, was a proper allowance, and that this amount should be taken from the corpus of the estate.</p> <p>3. An attempt was made by the cestuis que Irusteni to surcharge the trustees with certain items, which claim the court below rejected. The trustees paid $250 counsel fees to resist this and conduct other litigation, all of which arose at the instance of the beneficiaries. There were no other charges for professional services during the continuance of the trust, which was managed with care, fidelity and economy. Held, that this charge of $250 was moderate and should have been allowed.</p>

<p>Error to the Common Pleas, No. 1, of Philadelphia county: Of July Term 1875, No. 139.</p> <p>This was a scire facias to revive judgment et quare executionem non issued by Alice Hubert against Sarah Lewis'and the executors of Sarah Tingle, deceased.</p> <p>The judgment was entered December 17th 1873, on a judgment-note given by Sarah Lewis and Sarah Tingle to Alice Hubert. Sarah Tingle died in 1874, and the scire facias in this case issued January 22d 1875, returnable on the first Monday of February 1875. On the 6th of February 1875 the court granted a rule to set the scire facias aside and open the original judgment, and pending this rule, on the 10th of May gave the defendants five days to file an affidavit of defence, proceedings meantime to stay.</p> <p>On the 12th of May an affidavit of defence was filed by Sarah Lewis, alleging her coverture and minority, and on the 19th of the same month one of the executors of Sarah Tingle filed an affidavit, setting forth that they were informed,, believed and expected to prove that at the time of paying the note, decedent was a married woman, and that there was nothing due on said judgment as the whole of the amount claimed had been paid in usurious interest.</p> <p>The court entered judgment for the plaintiff for want of a sufficient affidavit of defence and this entry was assigned for error.'</p>

<p>Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1875, No. 186.</p> <p>This was the appeal of Anna Maria Davis from the decree of the. court dismissing her petition, praying that certain annuities charged by T. P. Hanbest, deceased, in his will, upon his estate, might be secured by setting apart a portion of the real estate of testator, the personal estate being insufficient to support said annuities.</p> <p>Thomas Passmore Hanbest died on the 7th of August 1873, leaving a will dated the 30th of July 1873, and a codicil dated the 5th day of August 1873. By this will he directed his brother, Philip, to collect the rents of his real estate and the interest of mortgages, and pay the same over to his executor, devising to him, also, certain real estate, and giving him $100 per month during his life, to be paid by his executor. To his sister Emily, he gave $100 per month during life. To his sister Julia, $100 per month, and devised to her, also, certain real estate. After several other legacies and annuities to various relatives, the will contains the following clauses:—</p> <p>“ 20. I give and devise to the Swedes Church of Kingsessing, Philadelphia, known and called, I believe, by the name of St. James’ Church, situate on the Darby road at or near the corner of Sixty-ninth street, all the rent and income of my store at Darby road and Ann street, now in the tenure of one-Johnson, and kept by him as a store for the benefit of all widows over forty years of age who may live within the old hounds of Kingsessing, and I give the same to the trustees and the minister of said church for ever, and payable one year after my death.</p> <p>“ 21. I give to Mrs. Anna Maria Davis, widow, the sum of throe thousand dollai-s per annum, payable quarterly by my executor, during her natural life, which sum is in full of all claims and demands of every kind which she may have for my board, and also for all her kind services rendered to me during my present illness or in any other way whatever, and which quarter will begin with my death.</p> <p>“ 25. After the payment of the above legacies, and the expiration of all the life-estates where, I have given annuities, I do will, and direct my executor to erect upon my estate, known as the Old Homestead, and situate on the easterly side of the Darby road, in Kingsessing, where my father lived and where I ivas born, a suitable building, not to cost over fifty thousand dollars, for the benefit of old men and old women who are infirm or crippled, and who are not able to earn a living, and for this purpose I do give and apply all the rest and residue of my estate, both real and personal and the increase of the same, and all the rents, interest, issues and profits thereof, for the support and maintenance of the same. And for the1 purpose of carrying out this my intention, I do authorize my executor to get such laws passed by the legislature as may be necessary to carry the same into full eifect, or to apply to the proper court to carry the same into effect, as may be deemed best for ever.”</p> <p>Isaac Norris, Esq., and Philip Hanbest, the brother of testator, were made the executors of his will. The proceedings in the court below commenced by a petition which, on behalf of Anna Maria Davis, after a reference to the foregoing portions of the will, set forth in substance :—</p> <p>“That by will the testator gives to your petitioner, Anna Maria Davis, the sum of three thousand dollars per annum, payable quarterly during her natural life; that the annuities of said will are charged upon all his residuary estate, both real and personal; that the personal estate of said testator is not sufficient to support said annuities; that said annuities might be amply secured by setting apart a portion of said real estate, and that the remaining residuary real estate, after setting apart such portion as may be ample security for the payment of said annuities, may be and remain discharged and exonerated from the lien and charge of the same.”</p> <p>She therefore prayed the court to order a citation to issue to show cause why such relief might not be granted. The executors answered, that in their opinion it was necessary that the whole of the real and personal estate of the testator should remain in their hands and under their control for the purpose of forming a capital or principal to meet said annuities from time to time as they became due and payable. They also suggested the appointment of an auditor to audit the accounts of the executors, to hear all the parties interested in the estate who could make a full report on which the court would be able to make a proper decree-.</p> <p>Sarah Hanbest, guardian ad litem of three minor children, heirs at law, and James Jameson in his own behalf as assignee of Thomas P. Hanbest, one of the heirs of decedent, made answer that the real estate of the said decedent was not charged with the payment of the legacies or annuities mentioned in the will, because by the terms of the will they are not so charged.</p> <p>The court dismissed the petition and in an opinion said :—</p> <p>“ The dispositions of this will which create trusts for charitable uses, as set out in the twentieth and twenty-fifth clauses, are contrary to the eleventh section of the Act of April 26th 1855, Purd. Dig., p. 208, pi. 24, because of the testator’s decease within one calendar month after executing his will, and are therefore void. The property thus attempted to be disposed of is made by the statute to go to the next of kin, or heirs, according to law : Price v. Maxwell, 28 Penn. St. 23. .</p> <p>Since the disposition attempted by the testator in the twenty-fifth clause ofhis will is void, it must follow that there is not any gift or devise of his residuary estate. The statute annuls every testamentary intention which contravenes it. There is therefore no residuary estate of the testator, for the testamentary disposition which seeks to create it is a nullity. The heirs and next of kin come into possession of the property, which the • testator expected to devise or bequeath, not as successors in title under the will, but by force of the statute in spite of and against it. They take not by or through the testator’s bounty, but by the written law. The testator’s intentions are annulled, and no inference as to his valid testamentary disposition in other parts of the will can be gathered from them. In this view, all that was'predicated in argument respecting his intention to charge his legacies and annuities upon his residuary realty, as deducible from a gift and application of his real and personal residuary estate blended, loses its force; the statute has swept away the foundation on which the rules of the law construing the testator’s intention thus to charge, must be based, eessante rations, cessat ipsa lex.”</p> <p>From this decree this appeal was taken.</p>

4, of Philadelphia county: Of July Term 1875, No. 125. Assumpsit by Catharine Baschore against John W. Miller on a promissory note for $100, dated the 28th of December 1859, drawn by the defendant to the order of plaintiff and payable one day after date. The defendant pleaded the general issue and the Statute of Limitations.

<p>1. In a writ of error under the reference law of April 22d 1874, Purd. Dig. 1939, the Supreme Court can hear and determine only questions of law arising upon bills of exception to the rulings of the judge relating to the evidence or the law of the ease. It will not go behind his findings of fact, except where in a common-law trial before a jury the assignments of error are such as can be heard and determined before this court.</p> <p>2. The superintendent of a corporation was given a draft, the proceeds of which were to be used for the benefit of the corporation. He went to a banking firm, one of the members of which was the treasurer of the corporation, and deposited with them the draft, the proceeds to be placed to his personal credit. The firm instead appropriated the proceeds to the payment of an indebtedness of the corporation to its treasurex-. Reid, that this was a misappx-opriation of the funds and that the firm was liable therefor. ,</p>

<p>1. Where a contract Avas made by the deceased member of a firm, in an action by the surviving partner, a party to the contract is incompetent as a witness under the provisions of the Act of April 15th 1869, Pamph. L. 30.</p> <p>2. A surviving partner is included within the exception to the Act of 1869, Avhich provides that the act shall not apply to actions “ where the assignor of the thing or contract in action may be dead.”</p> <p>3. A surviving partnor is as clearly included within the mischief by the death of the former owner “of the thing or contract,” as one is who claims by a written assignment from one who is dead, and his adversary cannot be permitted to testify to what passed between him and his deceased partner.</p> <p>4. Hanna v. Wray, 27 P. F. Smith 27, followed.</p>

<p>Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1876, No. 74.</p> <p>Assumpsit brought by James W. Boyd, the holder of a promissory note, against Bobert D. Cummings, who endorsed said note for the accommodation of Isaac Barton & Son, the makers.</p> <p>The pleas were non-assumpsit, payment with leave, &c., and the case proceeded to trial, when at bar the defendants filed the following special plea:—</p> <p>“And now, on motion of J. M. Moyer, the defendant amends his pleadings as follows, by leave of the court first had and obtained, for a further plea in that behalf, sayeth: The said plaintiff ought not to have or maintain his aforesaid action, because he sayeth that the note on which the above action is brought was obtained from the defendant by the said Barton through misrepresentation and fraud; that the said Barton, at and before the signing of said notes by this defendant, represented and pretended that he was the owner in his own right of goods and chattels and property of the clear value of over one hundred thousand dollars; that he was worth over one hundred thousand dollars above all his liabilities, and that upon the faith of said representations and pretences the said defendant, then and there, signed said note. Also, that defendant signed said note in blank, under the express promise and representation by the said Barton, that it was to bo a note for six hundred dollars, and that the said Barton afterwards filled up said note for the sum of-fourteen hundred 'and thirty-seven dollars, in violation of his said contract with the defendant; also, that the plaintiff is holding said note only as collateral security for a pre-existing debt, and that he has not delivered up to the said Barton the evidence of said indebtedness, but still holds and retains the same against the said Barton; also, that the said plaintiff received into his possession the said note, as a note-broker, from the said Barton, to sell the same in the market, and was to return to the said Barton the proceeds thereof; that he advanced five hundred dollars on account of said note to the said Barton, and that that is all the consideration received by the said Barton from the said Boyd; and that the defendant has paid to the said Boyd the said five hundred dollars in full accord and satisfaction of said note; also, that the said plaintiff had knowledge of the insolvency of the said Barton at the time of the delivery to him of said note by said Barton; that at the time of the aforesaid representations and pretences by the said Barton, he, the said Barton, was wholly insolvent and unable to pay his debts, and that he was not then and there the owner in his own right of property, goods and chattels of the value of over one hundred thousand dollars above his liabilities.”</p> <p>The plaintiff demurred to this plea, and set forth the following among other causes of demurrer: That said plea amounts to the plea of non-assumpsit; that it is double and contradictory in that it sets forth that the defendant made the endorsement sued on upon the representations of one Barton that he was the owner of property of great value; that the said endorsement was made in blank, on the representation and agreement that it would be filled up for the sum of $600; that it sets up an alleged accord and satisfaction; that said plea is further double and contradictory in that it avers that plaintiff received said note only as collateral security for a preceding debt; that he advanced $500 on the faith thereof; and that the plaintiff received said note for the purposes of sale, and to return the proceeds thereof to said Barton; that said plea does not set forth any fact invalidating his said contract of endorsement in the hands of a bond fide holder for value, and does not show that the plaintiff was not such holder, but, on the contrary thereof, distinctly shows that the plaintiff received said note for full value; that said plea does not show that said alleged representations of said Barton, respecting his property, were known by said Barton to be false, and were made with the purpose of inducing said defendant to give said endorsement; that said plea lacks certainty of time and place, in that the time at which some of the alleged facts therein set forth is given, nor are any of said facts alleged to have happened at any definite or specific place.</p> <p>Without a decision upon the questions raised by the demurrer the trial proceeded, and a verdict was rendered for the plaintiff for $1030.34, the amount claimed. The court subsequently, upon argument, sustained the demurrer, stating that they found the plea sufficient in form, but insufficient in substance, and entered judgment in favor of the plaintiff on the demurrer.</p> <p>The defendant then took this writ, alleging this action of the court for error.</p>

<p>Appeals from the Orphans’ Court of Philadelphia county: Of January Term 1877, No. 51, 52.</p> <p>These were appeals of Jacob T. Williams from the decree of the court in the matter of the trust estates of Hannah W. Sterling.</p> <p>The appellant, Jacob T. Williams, is the brother and trustee of said Hannah W. Sterling, under the wills of her father, Thomas Williams, and her sister, Mary Williams. The two trust estates were blended together for convenience by the auditor and by the court below; a special appeal, however, was taken, out in each case.</p> <p>The appellant, as trustee in said two estates, filed his account, and the same was referred to Edward Hopper, Esq., as auditor. Pending the audit, Hannah W. Sterling, the cestui que trust, filed her petition in the Orphans’ Court for the city and county of Philadelphia, praying the said court “ to declare that the trusts for the petitioner, under the last will and codicil of the said Thomas Williams, and the last will of the said Mary Williams, have all been executed, and to direct the said Jacob T. Williams, surviving trustee as aforesaid, to pay and hand over absolutely to your petitioner, all the moneys and other assets belonging to said trusts, and each of them now in his hands.”</p> <p>This-petition was likewise referred to Mr. Hopper to report upon. The auditor’s report hereunto annexed, fully sets out the clauses of the two wills, which give rise to the questions presented for the consideration of the court, together with the opinion of the auditor thereon, which is given at length, in view of the importance of the questions involved and the ability with which they are discussed-</p> <p>“ The most important question presented for the decision of the auditor, and which is presented by the petition referred to him, in conjunction with the account, arises in relation to the devise of Thomas Williams to his daughter, Hannah W. Sterling, and the devise of Mary Williams to her sister, the said Hannah W. Sterling.</p> <p>“ These estates are separate and distinct, and it would perhaps have been the better way for the trustee to have kept the accounts separated from each other; but as the estates for life were the same, and the remainders over were limited in substantially the same manner, the trustee blended the accounts. The devises will be considered separately, and from the conclusion to which the auditor arrives, the manner in which the accounts have been kept occasions no difficulty, as far as it affects the distribution of the estates.</p> <p>“ First. As to the question presented under the will of Thomas Williams.</p> <p>“ The clauses of the will under which the question arises are as follows:—</p> <p>“‘One other of the said seven full equal parts or shares, in which shall be included all that my messuage or tenement and lot or piece of ground thereunto belonging, situate No. 73, on the north side of Race or Sassafras street, between Delaware Second and Third streets in the said city, with the appurtenances, they shall allot and deliver, and I do hereby give, devise and bequeath the same unto my said sons, Samuel Williams, Thomas R. Williams and Jacob T. Williams, to hold the same and every part thereof with the appurtenances unto them mjr said sons Samuel Williams, Thomas R. Williams and Jacob T. Williams, and the survivors or survivor of them, and the heirs, executors, administrators and assigns of the survivor of them, in trust, nevertheless, to and for the following uses, intents and purposes: that is to say, in trust to let and demise the real estate, and put and keep out at interest, on some good real estate security, the personal estate forming such share, and to collect and pay over all the rents, income, interest and dividends thereof, from time to time, when and as the same shall be got in and received, unto my said daughter, Hannah Williams, for and during all the term of her natural life, so that the same or any part thereof shall not be under the control of any husband she may have or take, or be in any way or manner whatever sjibject to or liable for any of his contracts, debts or engagements. And from and after the decease of her, my said daughter Hannah, then in trust as regards the said last-mentioned seventh part or share to and for the only proper use and behoof of such person and persons, uses, intents and purposes as she my said daughter Hannah by her last will and testament in writing or by any writing in the nature of or purporting to be her last will and testament, to be executed by her in the presence of two or more credible witnesses, notwithstanding any coverture, or whether she be covert or sole, shall -nominate, direct, limit and appoint, and for want or in default of such nomination, direction and appointment, then in trust, after the decease of her, my said daughter Hannah', to and for the only proper use and behoof of all and every the child and children which she may leave, and the lawful issue of any of them who may then be deceased, having left such issue, their several and respective heirs, executors, administrators and assigns, in equal shares as tenants in common for ever, such issue of any deceased child or children of her, my said daughter, taking, however, and only receiving such part or share thereof as his, her or their deceased parent or parents would have had and taken had he, she or they been then living, and in case of the decease of her, my said daughter Plannah, without leaving any child or children, or the issue of any deceased child or children her surviving, and without having made any last will and testament as aforesaid, then to and for the only proper use and behoof of the right heir or heirs (under the then existing laws of the Commonwealth of Pennsylvania) of her, my said daughter Plannah, his, her or their heirs, executors, administrators and assigns for ever, if more than one person in equal shares as’ tenants in common: Provided always, nevertheless, that it shall and may be lawful for my said daughter Hannah Williams, notwithstanding any coverture, or whether she be covert or sole, at any time during her natural life, to alter, revoke, change and make absolutely null and void all or any of the trusts hereby declared and created, and to make and declare such new and other uses and trusts of and concerning the premises as she may see fit and proper; and provided, also, that it shall and may be lawful for the said Samuel Williams, Thomas R. Williams and Jacob T. Williams, and the survivors and survivor of them, and the heirs and assigns of the survivor of them, by and with the written consent and approbation of my said daughter Plannah, notwithstanding any coverture, or whether she be covert or sole, at any time during her natural life, to grant, bargain, sell and absolutely dispose of all or any of the real estate hereby devised in trust for her, my said daughter Hannah, unto any person or persons whomsoever, and upon sale thereof by good and sufficient deed or deeds, conveyances, or other assurances in the law to grant and convey and assure the same to the purchaser or purchasers in fee simple, and the money arising from such sale or sales thereof to again invest in other real estate, and hold the same in trust to and for the same and like uses, intents and purposes, and under the same and like provisos and limitations as are hereinabove set forth and declared of and concerning the premises so devised to them in trust for my said daughter Plannah, and to and for no other use, intent and purpose whatsoever.’</p> <p>“ ‘ Codicil No. 2. Whereas, in and by my last will and testament, dated the 26th day of the third month, one thousand eight hundred and thirty-eight, the following proviso is contained in relation to my daughter Plannah Williams’s trust; “ Provided, that it shall and may be lawful for my said daughter Hannah Williams, notwithstanding any coverture or whether she be covert or sole, at any time during her natural life, to alter, revoke, phange and make absolutely null and void all or any of the trusts hereby declared and created, and to make and declare such new and other uses and trusts of and concerning the premises as she may see fit and proper.” Now, I do, by this my writing (which I declare to be a codicil to my said will and testament, and direct to be taken as part thereof), revoke, annul and make void all the said above-recited proviso or power of revocation so far as relates to my said daughter Hannah, and do declare it to be my will, that the uses and trusts in my said will and testament in regard to my said daughter Hannah shall be and remain irrevocable, anything therein contained to the contrary notwithstanding. And, further, it is my will that all the personal property devised to Samuel Williams, Thomas R. Williams and Jacob T. Williams, in trust for the use of my daughter Hannah, be, as much as practicable, invested in real estate, such as in their opinion will be best, and the net income thereof collected and paid over unto her. And I do hereby ratify and confirm my said will and testament and codicil heretofore made and annexed thereto in all other respects save as above.’</p> <p>“Before coming to a decision in this case the auditor awaited the decision of the Supreme Court in Earp v. Phillips, and some later cases, in the hope (generally felt by the bar) that out of the numerous discordant cases some distinctive principle might be deduced which would serve as a guide in the construction of trusts created by will. Such a guide was sadly needed. All those principles which since the statute of uses had grown from numberless decisions, and governed-what are known as equitable estates, were in Pennsylvania overruled in 1856.</p> <p>“ Within the succeeding twenty years there has been a conflict of decisions upon the subject which has occasioned much perplexity to the bar. In the numerous cases within that period there have been a number of decisions for and against what used to be the well-understood doctrine of trusts. What the present learned chief justice has indicated as the current and violent counter-current of cases on the subject has been reviewed by him in Dodson v. Ball, 10 P. F. Smith 496, and he there asserted that ‘ the result of these conflicting principles and authorities is, that it is difficult to determine cases lying along the border.’</p> <p>“ In the recent case of Huber’s Appeal (Gaul’s Estate), 2 Weekly Notes 582, the learned Justice Woodward speaks of ‘the long line of authorities bearing upon this perplexed and intricate branch of the law of Pennsylvania.’ He designates the currents of decision bearing upon the subject, as ‘cross, counter, and direct.’</p> <p>“ The decision or opinion in Earp v. Phillips has failed to aid the auditor, so far as the annunciation of any distinctive principle of construction or interpretation would have done so. No such principle has been declared, nor can any be extracted from the opinion of the court in that case. In that — the last case — as if to preclude the attempt to discern any such guide, the court say, ‘ It is proper to remark, that the decision upon one will rarely ever forms a precedent for a decision upon another; even the same words in one are often interpreted differently in another. Instances of those various readings will be found in Yarnall’s Appeal. Hence that which may appear contrariety of decision is simply diversity in the testator’s intention.’</p> <p>“ As an officer of a court, subordinate to the Supreme Court, the auditor considers his duty best performed by comparing the cases before him with the expression of the latest view of the Supreme Court, in stating the result of such comparison, and in having thus moved the parties one stage further on the road through which every question of supposed trust for the last twenty years has travelled, and still must travel, to the Supreme Court.</p> <p>“ In Earp v. Phillips the court deemed it advisable to explain the two cases of Yarnall’s Appeal and Ogden’s Appeal, both decided two years before; and to distinguish them from the views contended for by the late Chief Justice Thompson (of counsel in Earp v. Phillips), who had relied upon his understanding of those cases in the decision of which he had concurred while on the bench. In the determination of the question now before the auditor, he will refer to these three cases only, and to the explanation of the first two contained in the last.</p> <p>“ If the estate devised to the testator’s daughter Hannah is an equitable one, it is so by virtue of the proviso of the will already cited and of the codicil No. 2. The purpose for which the testator devised one-seventh of his estate to his three sons, in trust for his daughter Hannah, is expressly stated to be ‘ so that the same or any part thereof shall not be under the control of any husband she may have or take, or be in any .way or manner subject to or liable for any of his contracts, debts or engagements.’</p> <p>“ No other purpose is stated and none other can be implied. The trust created, from, the character of the duties imposed upon the trustees, is a special one, and created for the benefit and security of Hannah’s property in the natural expectation of her coverture. It was admitted as a fact before the auditor, however, that at the date of the will, the said Hannah was not in immediate contemplation of marriage. Under similar circumstances a special trust was declared voidable in Yarnall’s Appeal, and Wells v. McCall (cases referred to as still controlling authorities in Earp v. Phillips), and the auditor decides that the special trust created by Thomas Williams, for his daughter Hannah, is also voidable, and upon the application of the said Hannah, now referred to him, actually void.</p> <p>“ It must be obvious, from an examination of the wrill of Mr. Earp (in Earp v. Phillips), that so far as the trust related to his daughter, its purpose was — as is the purpose of every father with reference to his daughters in such cases — to guard her interest in the event of coverture; yet-this was not said by the testator (Earp). In no other respect did the devise in Earp v. Phillips differ from that in Yarnall’s Appeal, in which the purpose of the special trust ivas in terms asserted.</p> <p>“ In the latter case the special trust was declared void, and in the former it was held valid. And the very fact of the assertion in the one case, and the absence of such assertion in the other, is one of the grounds on which the court distinguished the two cases. The auditor is therefore forced to the .conclusion that the purpose of the testator, Thomas Williams, would not have affected the special trust created, had it not been declared, and that its declaration rendered at once the special trust invalid. It is true that the court also distinguished Earp v. Phillips from Yarnall’s Appeal, by saying that in the former case ‘ the corpus of the estate is fully and distinctly vested in the trustees and put under their control,’ which was not done in the latter, but the court, in Yarnall’s Appeal, 20 P. F. Smith 339, held that it had been done, saying, ‘ It is dear that as to the daughters, the corpus of the estate vested in the trustee, and he was to pay over the interest and income to the daughters of Mrs. Ellis during life.’ These words form an important part of the opinion of the learned court that uttered them, and the auditor has felt not only at liberty, but that it is his duty, to disregard the attempted distinction between the cases on the ground last stated. In the will of Thomas Williams, it is true the devise to the trustees is of the corpus, but as this was decided to be the character of the will of Hannah A. Ellis (Yarnall’s Appeal), the decision in the latter case is followed by the auditor in the case now before him.</p> <p>“By codicil No. 2, the power of revocation is taken away from the cestui que trust, and the testator declares that the trust created by the will shall be irrevocable, and that all the personal property devised in trust shall be as much as possible invested in real estate. The trust created by the will is by the codicil neither modified, nor is the declared purpose for which it was made affected for good or ill. No doubt the purpose of the codicil was to take from the daughter the power which an unfortunate or speculative husband might prompt her to exercise; in effect, to further shield the property from the chief peril to which the continued experience of generations of lawyers has shown such estates to be exposed, and in this way to add strength to the provisions of the will. It is in the expression of the will, unmodified by the codicil, however, that the weakness inheres. There the testator expressed the purpose for which he called the machinery of a supposed trust into being, and thereby, as has been shown by reference to Earp v. Phillips, he defeated the sole purpose of his act.</p> <p>“ The devise is therefore a legal one to Hannah of the income for life, and this, in Pennsylvania, is a devise for life of the estate out of which the income issues: Wilson v. McKeehan, 3 P. F. Smith 79. The estate created by the will of Thomas Williams is consequently a legal estate for life in his daughter, with a legal remainder to her children, and in default of children, to her right heirs. It seems scarcely necessary to show what no one will doubt, that by the operation of the rule in Shelley’s case, the latter estate coalesces with and enlarges the former to a fee simple, and the auditor decides that logically following the cases of Earp v. Phillips and Yarnall’s Appeal, the estate created by the will of Thomas Williams for the benefit of his daughter Hannah is a fee simple, in one-seventh part of the testator’s estate.</p> <p>“Another view of the case may be taken, which may perhaps relieve it from the difficulties presented in the previous discussion.</p> <p>“ It is alleged to be a trust for coverture or for protection against coverture.</p> <p>“In support of this allegation it is shown that Thomas Williams, the testator, made the codicil No. 2, after the marriage of his daughter Hannah. When the testator’s will was made there was no engagement, no marriage in immediate contemplation. After the marriage this codicil was made, by which the power of revocation was annulled. This was done in reference to the trust for the said Hannah, and not rvitli regard to that for the other daughters. This would seem to indicate that the intention of the testator was to make it a trust for protection against coverture; and if that view is correct, and certainly it is not without plausibility, the husband of Hannah having died, the trust must be considered as executed, and the prayer of the petitioner granted.</p> <p>“As to the devise under the will of Mary Williams, the clause under which the question arises, is as follows, to wit:—</p> <p>“ ‘ Item : All the rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever (excepting only that part or portion of the real and personal estate of my late father, Thomas Williams, deceased, which I may receive or be entitled to on the division of said estate, and which I have willed as hereinafter expressed), I give, devise and bequeath as follows:—</p> <p>* * One full equal third part thereof unto my said brothers, Thomas R. Williams and Jacob T. Williams, and the survivor of them, and the heirs, executors, administrators and assigns of such survivor for ever, to hold the said last-mentioned one-third part of my said estate in trust for the following uses and purposes, that is to say: to demise and let the real estate, and to put or place and keep out on mortgage security at interest, the personal property and the proceeds from the sales of the said real estate, or with the approbation in writing, under her own hand, of my sister, Hannah W. Sterling, wife of James S. Sterling, to invest the same in the purchase of ground-rents or other real estate in the city and county of Philadelphia, or of stocks, and to collect and receive the rents, interest and income of the said trust estate and property and investments thereof, and to pay over the same rents, interest a,nd income, when and as received, unto my said sister, Hannah W. Sterling, for her own sole and separate use and support during her natural life, for -which her own receipts, under her own hand, notwithstanding her present or future coverture, or whether she be covert or sole, shall be good and valid discharges, and so that the same or any part thereof shall not be in the power, nor subject to the debts, control or engagements of her present or any future husband. And upon the decease of the said Hannah W. Sterling, then to hold, transfer and pay over the said trust estate and property and the investments thereof unto and to the use of such person or persons and in such way and manner as she, by her last will and testament in writing, or any writing in the nature thereof, to be by her signed and intended as such, notwithstanding her present or future coverture, or whether she be covert or sole, shall direct and appoint —and in 'default of such will or appointment, then to hold, transfer and p”ay over the same unto such person or persons in such shares, and for such estates and interests therein, to whom and as the same would go had she died seised thereof in fee, and possessed of the said trust estates and property and investments thereof agreeably to the then existing intestate laws of the state of Pennsylvania. And it is my will that the said trustees or the survivor of them, and the heirs, executors, administrators and assigns of such survivor, shall, and I give them full power and authority at any time or times, during the life of my said sister, Hannah W. Sterling, with her consent, to be testified by her becoming a party to the deed or deeds of conveyance, therefore to sell, assign and dispose of all or any part of the said trust real estate, and convey the same unto the purchaser or purchasers thereof in fee simple, without liability on the part of the purchaser, for any misapplication of the purchase-money. And the proceeds from such sale or sales shall be put out and invested in the city or county of Philadelphia, in mortgage security at interest or in the purchase of ground-rents or other real estate, or stock or stocks, and the investments thereof to be held by the said trustees in the manner and for the uses' and purposes and under the same powers as are hereinbefore set forth and expressed. * * *</p> <p>“ ‘ * * * Item: As regards that part of my estate, real, personal and mixed, which I am entitled to under the will of my said father, when and as soon as a final partition thereof shall be made, I give, devise and bequeath the same as follows:— * * *</p> <p>“ ‘ One full equal fifth part thereof unto my said brothers,. Thomas R. Williams and Jacob T. Williams, and the survivor of them, and the heirs, executors, administrators of such survivor for ever, to hold the said last-mentioned one-fifth part thereof in trust for the like and same uses, intents and purposes, and under the same powers and limitations in all respects as are hereinbefore specified and declared concerning the one-third of my residuary estate (excepting as before excepted), devised to them in trust for the use of my said sister, Hannah W. Sterling, and in the like manner, as though the same trusts were here at large repeated.’</p> <p>“ After the discussion upon the devise of Thomas Williams, little need be said upon the question raised by the will of Mary Williams. This will was made after the marriage of the said Hannah to Sterling, and would seem to be a trust for protection against coverture. Under the ruling in Yarnall’s Appeal, and in other cases, it would seem to be an executed trust. In one aspect it is not so strong a case for the maintenance of the trust. In Yarnall’s Appeal, the husband of the tenant for life was excluded. Here no such exclusion was attempted. The statutory canon of descent is adopted by the will in case of default of testamentary disposition. The trust, since the death of the husband of Hannah W. Sterling, must be considered as executed, and the auditor so decides.”</p> <p>The exceptions filed to this report were dismissed by the Orphans’ Court, and the report confirmed, Dwight, J., in an opinion, after some observations upon the character of the two trusts, continuing as follows:—</p> <p>“ It is not necessary to copy the clauses of the wills discussed in Ogden’s Appeal, 20 P. E. Smith 501, and Yarnall’s Appeal, Id. 335. They are substantially identical with the provisions of the two wills now before the court. In each of those cases the Supreme Court decided that the trust was for coverture only, and fell, because neither of the cestui que trusts contemplated marriage. The trust having fallen, the life-estate and the remainder united under the rule in Shelley’s case, and the cestui que trusts each -took a fee.</p> <p>“ In Earp’s Appeal, 25 P. F. Smith 119, there was not a trust for coverture, but for life; and in Ashhurst’s Appeal, 27 P. F. Smith 464, there was a trust both for coverture and for life. In each case the trust for life, as the paramount and controlling aim of the founder, was regarded. But in Yarnall’s Appeal and Ogden’s Appeal the life feature of the trust was ancillary to the trust for coverture, which was the prime, the only intention of the testators. It is this diversity in intention which required the life-estate in the two former to be kept separate as an equitable estate from the legal remainder. But the trust for coverture in the latter falling, the estate of the cestui que trust becomes legal, and thus can coalesce with the remainder under the rule in Shelley’s case.</p> <p>“ In Megargee v. Naglee, 14 P. F. Smith 216, there was a trust for coverture, with power of testamentary disposition, and remainder to the use of the cestui que trust’s heirs and legal representatives. Her husband died. It was held that the estate became executed in the cestui que trust, and it was decreed that the trustees should convey the legal estate to her.</p> <p>“ These cases, as we view them, sustain the report of the auditor. We think that the trust for coverture under each of the wills before us has fallen, and that the fee of the realty and the absolute property of the personalty, constituting the corpus of each trust, are in Mrs. Sterling.”</p> <p>From this decree two appeals were taken, and the assignments of error were that the court erred in declaring the trust under both wills executed, and that the estate to Mrs. Sterling under the will of her father was a fee simple,</p>

<p>Appeal from the Orphans’ Court of Philadelphia county: Of July Term 1876, No. 28.</p> <p>This appeal was from the decree of the court made upon exceptions to the report of an auditor appointed to audit the account and make distribution of the balance in the hands of the executors of Barnabas Hammett, deceased.</p> <p>Barnabas Hammett died January 22d 1878, leaving a will, in which James H. Campbell, Daniel M. Eox and N. B. Browne were appointeddiis executors. When the executors filed their first account it was referred to an auditor, Thomas Greenbank, Esq., who found the balance for distribution to be $84,688.67, one-third of Avhich the widow of the decedent, Róbenla Hammett, claimed as her distributive share. It appeared that a number of suits against the estate, involving large amounts, were pending in various courts of the state, but no creditor appeared before the auditor to lay claim to any portion of the fund.</p> <p>The auditor, after a reference to these suits and the amounts involved therein, reported as follows:—</p> <p>“ This balance, under a reference to the auditor, which is to settle the account, and to distribute the balance, would, in an ordinary case, be distributed by the auditor among the widow and legatees, because no creditor who remains unpaid has presented and established a claim to any part of it. But taking into consideration the .pendency of the numerous suits at law, above named, which are brought to the attention of the auditor, he is of opinion that although ■they are not presented as claims upon this fund, and it could therefore he distributed without regard to them, yet, as a matter of precaution, it would he wise to retain the larger part of this balance In the hands of the executors, after awarding a small proportion of the distributive fund to the widow and legatees, until the adjudication of the next account. The auditor has therefore made distribution of one-third of the distributive balance.''’</p> <p>To this Report Mrs. Hammett excepted, alleging that the auditor erred in not distributing the whole of the balance of $84,688.67, in the hands of the accountants.</p> <p>The executors also excepted as follows:—</p> <p>“ And the accountants do especially except to the distribution of any portion of the fund at this time, because it appears that there are large claims against the estate in course of litigation, the result of which, if adverse to the executors, will more then absorb the entire personal estate.”</p> <p>The court (the opinion by Dwight, J.) held that the Orphans’ Court had not exclusive but concurrent jurisdiction of the claims of creditors against the estate of a decedent, and made a decree dismissing the exception of Mrs. Hammett, sustaining that of the executors, setting aside the distribution reported by the auditor, and ordering the balance in the hands of the accountants to be retained by them until the further order of the court.</p> <p>Mrs. Hammett took this appeal and assigned this decree for error.</p>

In Equity. January Term 1873,' No. 13. The bill in this case Avas filed November 30th 1872, by the Philadelphia Trust, Safe Deposit and Insurance Company, assignees of the Enterprise Insurance Company of Philadelphia, against the Fame Insurance Company.

2, of Philadelphia county: Of July Term 1875, No. 30. Assumpsit by George and William Lee, executors of Wetherill Lee, deceased, the survivor of the partners of the firm of Barcroft & Co., against O. Wilson Davis and Morris S. Wickersliam, late trading as Davis & Wickersham, to recover the amount of a claim against L. L. Wrothdr & Co., which the defendants had collected as the agents of plaintijfs.

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1877, No. 60.</p> <p>Debt brought by George and William Lee, executors of Wetherill Lee, deceased, the survivor of the partners of the firm of Barcroft & Co., against 0. Wilson Davis and Morris S. Wickersham, late trading as Davis & Wickersham.</p> <p>The summons in the case issued on the 14th of November 1874, service of which was had upon Wickersham only. The declaration set forth, that the defendants, being engaged in the business of collecting overdue claims, by law and. otherwise, the said 0. Wilson Davis being an attorney-at-law, the plaintiffs, on March 17th 1862, employed the -defendants to collect for them a claim against McFalls & Collins, of Mayfield, Kentucky, belonging to the said plaintiffs, amounting to $1545.84, of which amount the said defendants heretofore, to wit, on the 11th day of M-arch 1863, collected and received the sum of $447.86, whereby the said defendants became indebted to the said plaintiffs in that sum.</p> <p>The defendant, Wickersham, pleaded the general issue, the Statute of Limitations, and put in a plea denying the partnership between Davis and himself.</p> <p>The plaintiff's demurred to the plea of the Statute of Limitations, upon the ground, “ that the action of the said plaintiffs, as in the , said declaration set forth, is not grounded upon any lending or contract without specialty, nor is it for arrearages of rent, but accrued to the said plaintiffs by implication of law.”</p> <p>The court entered judgment for the plaintiffs on the demurrer, which was the error assigned.</p>

<p>1. A purchaser of personal property who seeks to defend an action for the purchase-money on the ground of a defect in the vendor’s title, must show an eviction or an involuntary loss of possession.</p> <p>2. A purchaser of personal property who takes and retains possession thereof and consumes it, cannot defend an action for the price on the ground that he had .afterwards boon obliged to pay for the property again to a third person who had a paramount title.</p> <p>3. When the vendor of personal property knowingly makes a false representation as to his title to the goods, this can be set up by the vendee as a defence in an action for the unpaid purchase-money.</p> <p>4. K. bought from B. his interest in certain chattels and in certain letters patent for an invention; in an action to recover the unpaid purchase-money, K. offered to show that at the time of the sale, B. had ceased to own the property, and that after the sale and delivery to him he had paid the real owner for it: Held, that this offer was properly refused and that the defendant was bound to prove an eviction.</p> <p>5. K. further offered to show in connection with these facts that he did not go into possession until his purchase from the rightful owner: Held, that this offer was properly refused.</p> <p>6. K. offered to show that at the time of the sale, B. falsely represented himself to be the owner of the letters patent: Held, that proof of the facts offered would be a defence and that this offer should have been sustained.</p>

<p>Error to the Court of Comihon Pleas, No. 2, of Philadelphia county: Of July Term 1876, No. 30.</p> <p>Debt by the City of Philadelphia against the Union Passenger Railway Company, in which the following case was stated for the opinion of the court, with the right to either party to sue out a writ of error to the judgment</p> <p>That by “ An ordinance supplementary to an ordinance entitled. ‘An ordinance to regulate passenger railways,’ approved July 7th 1857,” approved April 1st 1859, and by the third section thereof it is provided:—</p> <p>“ That each and every passenger railway company shall pay into the office of the chief commissioner of highways, in the month of January of each year, for the use of the city, the sum of thirty dollars for each car intended to be run upon any road; and for each and every car placed upon any road before the time herein provided for paying the license, a proportionate sum shall be paid until the succeeding January,.and that no car shall be placed or run upion any road or street until it shall be regularly licensed and a certificate duly numbered hung in a conspicuous place in said car.”</p> <p>That the defendants were created a body politic by an act jiassed April 8th 1864, Pamph. L. 297, with the authority to construct a railway on certain named streets in the city of Philadelphia. Among other things in said act, it is enacted:—</p> <p>“ Sect. 4. * * * Said railway shall conform in gauge to the passenger railways now laid in the city of Philadelphia. * * *</p> <p>“Sect. 8. * * * And the said company is hereby authorized and empowered to construct and lay the said railway, without obtaining the consent of the city councils of the city of Philadelphia; but whenever the said railway shall be laid and used, by running passenger cars thereon, the said company shall be subject to the ordinances of the city of Philadelphia'regulating the running of passenger railway cars.</p> <p>“ Sect. 10. That the said company shall pay annually into the treasury of the city of Philadelphia, for the use of said city, whenever the dividends declared by said company shall exceed six per cent, per annum, on the par value of the. capital stock thereof, a tax of six pier cent, on such excess over six pier cent., * * * and the said company shall also pay such license for each car run by said company, as is now paid by other passenger railway companies in the city of Philadelphia.”</p> <p>By “ A further supplement to an ordinance to regulate passenger railways, approved July 7th 1857,” approved January 2d 1867, it is enacted:—</p> <p>“ That each and every passenger railway company shall pay to the chief commissioner of highways the sum of fifty dollars for each car run upon their respective roads. * * *”</p> <p>That by “ An Act to define the duties and liabilities of passenger railway corporations in the city of Philadelphia,” approved April 11th 1868, Pamph. L. 849, it is enacted: “ That the several passenger railway corporations in the city of Philadelphia shall pay annually to the said city, in the month of January, the sum of fifty dollars, as required by their charters, for each car intended to be run- over their roads during the year, and they shall not be obliged to pay any larger sum; and said city shall have nó power, by ordinance or otherwise, to regulate passenger railway companies, unless authorized so to do by the laws of this Commonwealth, expressly in terms relating to passenger railway corporations in the city of Philadelphia. * * * ”</p> <p>That in. each year previous to the year 1875, the defendants paid the said plaintiff the sum of fifty dollars for each of the cars run by them during said year.</p> <p>The defendants, in the month of January 1875, ran seventy-nine cars on their road, and admit their liability to pay to the plaintiffs, for each car, the sum of thirty dollars, and no more.</p> <p>If the court shall be of opinion that the plaintiffs are entitled to recover the sum of fifty dollars for each car, then judgment to be entered for the plaintifFs at that rate; if not, then judgment to be entered for the plaintiffs at the rate' of thirty dollars for each car. The damages to be assessed by the prothonotary.</p> <p>It is agreed, that any Act of Assembly or ordinance of the city of Philadelphia whieh may be pertinent to the case here stated, shall be considered as embraced herein.</p> <p>The court entered judgment for the plaintiff at the rate of fifty dollars on each car.</p> <p>The defendants took this writ and the assignments of error were:</p> <p>1. The court below erred in entering judgment at the rate of $50 each car.</p> <p>2. The judgment below impairs the obligation of the contract created by the charter of the Union Passenger Railway Company, and is in conflict with sect. 10 of art. 1 of the Constitution of the United States.</p> <p>3. The court below erred in not entering judgment on the case stated at the rate of $30 each car.</p>

<p>Error to the Court of Common Pleas, No. 2, of Philadetyhia county: Of July Term 1876, No. 45.</p> <p>Assumpsit by Henry W. Hook against W. F. Weichardt, J. L. Luckenbach and A. S. Pendleton, on twenty-three promissory notes.</p> <p>Hook sold the defendants certain shares of the Plook Smelting Company, and received in part payment for them the notes in question, with a part of the shares as collateral security. The notes contained a provision for the sale of the collateral in case they were not paid at maturity. The agreement under which these notes were given provided, that upon default in the payment of any one note all the notes should be considered as due and payable., The note maturing first was not paid at maturity, and the plaintiff thereupon sold the collateral and brought this action to recover the amount remaining unpaid. An affidavit and a supplemental affidavit of defence were filed, which set up the following facts: That differences had arisen between the parties, which were referred to E. Hunn Hanson and Edward R. Worrell, counsel for the respective parties, “with full power and authority to settle and adjust such differences and to enter into any agreement” in behalf of the parties; and that “after numerous consultations” those gentlemen agreed upon the following settlement: That the business affairs of the Hook Smelting Company should be examined on behalf of Hook, and if it appeared that the business had been properly conducted and that the company was solvent, &c., then Hook should cancel and deliver up the notes which he held, and pay the defendants $20,000, which was the amount of cash originally paid by the.defendants to Hook, and simultaneously with such payment and delivery the defendants should transfer back to Hook the shares of stock they had bought from him. It was further averred that this “ agreement was not intended to be a technical award, but an agreement to remit the parties to their position” at the time of the sale of the stock, if the affairs of the company should be found to have been managed in substantial compliance with law.</p> <p>There was no averment of a formal submission or award, or that the referees had been sworn, or had taken any testimony, or of any agreement having been, made between the parties, excepting the one made by their counsel, as above, nor was there an averment that this settlement of counsel, whether it was an award or an accord, had been carried out or performed in any respect by either party, or that either party had tendered a performance of it to the other.</p> <p>The court below was of the opinion that the- agreement between the parties was an award, but that the affidavit was insufficient, because it did not aver performance of the award, and entered judgment for the plaintiff for want of a sufficient affidavit of defence, to which the defendants took this writ of error.</p>

<p>1. In an ordinary contract of sale of personal property the vendor is subject to no implication of a warranty of the quality of the articles sold, but there is nothing in this rule to forbid a vendor from making a contract stipulation that he will be answerable to the purchaser for the quality.</p> <p>2. Where, therefore, the vendees alleged the existence of a contract with vendors that defined their rights and there was evidence from which the jury might have inferred an agreement on the part of the vendors to be answerable for the quality of a lot of coal they were to deliver, it was error to withhold evidence of this warranty from the jury.</p>

<p>Appeal from a decree of the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1876, No. 263. ' In Equity.</p> <p>This was a bill in equity, filed by Dennis Hamilton against the Passyunk Birilding Association and James P. McCloskey, which set forth that the building association was a body corporate, created by the Court of Common Pleas and having the powers of a building -and loan association, under the Act of April 12th 1859, Pamph. L. 544; that plaintiff has held ten shares in said association since 1868; that by article 7 of its by-laws each member is bound to pay one dollar per month to the treasurer, and that the plaintiff had thus paid in $620 ; that article 2 of the charter provides that stockholders having taken no loan, and wishing to withdraw from the association, shall be entitled to receive from the treasurer the amount of dues actually paid in by them, first deducting all fines and forfeitures and a portion of all losses incurred; “ and also, that stockholders wishing to withdraw shall give one month’s notice to the board of directors of such intentionthat plaintiff had taken no loan and gave such notice, yet no action has been taken thereon, and he has not been repaid the sum due him ; that said association has not met for six months, and its assets and books are in the possession and under the control of McCloskey, its president, who refuses to deliver the same, or apply said assets to the purposes of the association, and to disclose what said assets are; that said assets are sufficient to repay the plaintiff and other withdrawing parties, if any such there are.</p> <p>The prayer Ayas:—</p> <p>1. That an account be taken betAveen the defendant, James P. McCloskey, and said association, and he be decreed to pay to them what, if anything, shall be found due to them upon such account.</p> <p>2. That the said association be decreed to pay to the plaintiff the sum due to him as a Avithdrawing member, and that an account be taken betAveen said association and plaintiff for that purpose.</p> <p>3. Such other and further relief as shall seem meet.</p> <p>The ansAver of defendants, in substance, Ayas that the court had no jurisdiction of the subject-matter set forth in the bill, the claim of the plaintiff consisting of a single item, for Avhich he had an adequate remedy at laAV; that there are no funds in the treasury applicable to the demands of Avithdrawing stockholders; that plaintiff did not give notice of his Avish to AvithdraAv; that all the moneys of the association are in the hands of three borrowers, Avho severally gave their bonds and mortgages to repay the same, and who have refused’to pay their monthly dues and interest, and have conspired to defraud the association of the amounts due by them, and in pursuance of this combination had filed a bill in equity to have said mortgages cancelled, which had subsequently been discontinued; that the present suit is brought by the plaintiff acting in concert with these three borroAvers and others, Avith the intention of destroying the association and of defrauding the members thereof out of their just dues; that it is true the association had not met for six months, but this Avas OAving to the default of these conspiring parties and of the plaintiff in not attending the meetings; that said McCloskey has never refused to deliver up the assets, and no demand Avas made for the same, nor has he refused to apply the assets to the legal purposes of the association, &c.</p> <p>By the report of the master to Avhom the bill and ansAver Avere referred to take testimony and report, it appeared: That the association had, what the Avitnesses termed, a “ break-up,” in December 1872; that previous thereto a large number of persons gave notice of their intention to AvithdraAv, and that after their withdraAval and the amounts duo them Avere paid there remained in the hands of the treasurer about $2300, which Avere handed over to Mr. McCloskey. After the “break-up” several meetings were held, at Avhich sums amounting to $617.57 Avere received, and also paid to McCloskey, and that a Mr. Carney OAvned a house upon Avhich a mortgage was held by the association, the amount of AYhich, $775, Ayas paid over to McCloskey after the “break-up.”</p> <p>McCloskey himself testified before the master, that the plaintiff never gave notice to AvithdraAv; that he, McCloskey, never refused to disclose the amount of the assets; that the association was indebted to him; that he had nothing in his hands to pay these parties, and there were no funds in the treasury.</p> <p>The master reported that he was of opinion that sufficient evidence was produced for the purpose of tracing a large sum of money to the possession of McCloskey, from which he awarded plaintiff’s full claim, with interest from the date of his last payment to the association.</p> <p>The defendants filed a number of exceptions to this report, among which were the following: That such an account as was prayed for by the bill was not taken, nor stated by the master; that the master does not report that the required notice was given; that he erred in making a decree that McCloskey should pay the plaintiff’s claim, and not that the same should be paid by the association, it appearing to have sufficient assets; that the court had no jurisdiction, and could confer none upon the master, as plaintiff had his remedy at law.</p> <p>The court dismissed the exceptions, and made a decree that McCloskey should pay the $620, with interest, together with the fee of the master.</p> <p>From this decree this appeal was taken.</p>

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia county : Of January Term 1877, No. 50.</p> <p>This action was brought by Walter H. Bryan against the American Steamship Company, to recover the value of certain personal effects alleged to have been stolen from his state-room while a passenger on one of the defendant’s vessels.</p> <p>At the trial before Lynd, J., these facts appeared: The plaintiff occupied, by himself, a state-room opening upon a passage-way or alcove, which, in turn, opened into the cabin. He had never had a key to his room, and it was customary, for purposes of ventilation, to leave the state-room doors open at night. He would have been furnished with a key if he had asked for one. A light was always kept burning in the cabin, and a watchman was always on duty there at night. This was the rule of the ship, and was in accordance with the Act of Congress of February 28th 1871 (Rev. Stats., § 4477). The duty of keeping watch in the cabin was performed by the stewards and waiters on the vessel, and was in addition to their regular daily duties. Besides this, the officers of the vessel were in the habit of visiting the cabin to see that the watchmen attended to their duties. One of the rules of the vessel required that the watchman on duty should report every hour during his watch to the officer on the bridge. On the night in question the watchman, who was one of the stewards, while making one of his hourly reports to the officer on the bridge, stopped at the cook’s galley to get a cup of coffee. The property stolen consisted of wearing apparel, &c., contained in two valises, and was taken from the plaintiff’s state-room while he was asleep. It appeared that three other state-rooms were robbed on the same night, and that two of these were on the opposite side of the vessel from the plaintiff’s state-room. It did not appear clearly who committed the robbery, though there was evidence that one of the passengers, named Sprungli, who appeared to be a professional thief, and who had occupied a state-room across the alcove from the plaintiff’s, was arrested on suspicion, but was, after three months’ confinement, discharged for want of evidence to connect him with this transaction.</p> <p>The court refused to charge as requested by the defendant (though substantially affirming the same principles in the general charge).</p> <p>1. “That no liability as carriers exists on the part of the defendant for baggage of a passenger not delivered into the custody of the defendant,” and 2, that “as to articles of baggage retained by the passenger in his own custody and under his control, no liability exists for their loss or theft, without wilful negligence on the part of the carrierand charged as follows:—</p> <p>* * * “I instruct you, that as to ordinary wearing apparel and ornaments of dress required for daily use, which the passenger takes into his own state-room, the company does owe the duty of protection to the extent of ordinary care against loss by theft. The plaintiff contends that the thief was one who had access to the saloon, and that if it had been lighted and guarded properly it could not have happened.</p> <p>“ The defendant contends that it was done by a passenger named Sprungli, who had the room on the opposite side of the passageway to the plaintiff.</p> <p>“You must ascertain how this theft was perpetrated, for on this depends the question of negligence.</p> <p>“ The negligence set up by the plaintiff was, that ordinary care and caution were not used in lighting and guarding the saloon, and that from the fact that 'state-rooms upon opposite sides of the saloon were robbed, the theft must have been committed by some one who was allowed to roam at will in the saloon.</p> <p>“ The duty was that of ordinary care and caution. If the lighting and watching of the saloon was such as an ordinarily prudent person would have adopted, then there was no negligence.</p> <p>“ If you find, however, that the robbery was committed by this man Sprungli, who had only to step out of his own door across the alcove into the room opposite, you may then find that no care or caution on the part of the steamship company could have prevented it. If Sprungli stole it, and it could not have been prevented by any ordinary care on the part of the defendant, then your verdict should be for the defendant.”</p> <p>The question as to whether there was any evidence to charge the defendant with negligence was reserved for the court in banc. There was a verdict for the plaintiff in $586.71. Judgment was after-wards entered on the reserved point for the plaintiff, whereupon the defendant took this writ of error, assigning for error the refusal of the defendant’s points, as given above, and the entry of judgment for the plaintiff on the reserved point.</p>

1, of Philadelphia county: Of July Term 1876, No. 106. This Avas an action of trespass on the ease by Fannie Bean against William M. Seyfert. The narr. contained counts for an eviction and for trespass de honis asportatis. Pleas, not guilty. The facts were these:— Boileau & Sankey leased a dwelling-house in Philadelphia to the plaintiff for a boarding school, for one year from September 1st 1870, at a rental of $3000, payable quarterly in advance.

3, of Philadelphia county: Of January Term 1876, No. 171. This was a scire facias issued by the Commonwealth to the use of William E‘. Peet, upon the official recognisance of William R. Leeds, late sheriff, and his sureties. Peet obtained a judgment against Joseph Lauferty & Son, at Nisi Prius, for $1993.30, on the -23d of September 1871, and on the same day issued a fi. fa. thereon, which was placed in the hands of the sheriff on the morning of that day.

<p>An Act of Assembly directed the chief commissioner of highways to open Volkmar street in the city of Philadelphia. An alternative mandamus issued from the court below to compel the commissioner to open said street in conformity with said act. He made return that there was no such street as Yolk-mar street. The relators demurred on the ground that said return contradicted the statute. The court entered judgment for the respondent on the demurrer : Held, not to be error.</p>

4, of Philadelphia county : Of January Term 1875, No. 217. The case was this: Thomas Thompson and others obtained a judgment against Eli M. Broomall, and issued an attachment in execution, upon which A. L. Bonnaffon was summoned as garnishee; the defendant was not served.

115. This was the appeal of Simon Delbert and others, from the decree of the court revoking the appointment of the Fidelity Insurance, Trust and Safe Deposit Company, as trustee under the will of Frederick Gaul, Sr., deceased. Frederick Gaul, Sr., died in June 1831, leaving a will, dated August 1st 1825, and seven children, Frederick, William, Jacob, Martin and Catharine Gaul, Mary, afterwards Mary Smith, Elizabeth, afterwards Elizabeth Stiles, and a widow, who died in 1836.

114. This was an appeal by Simon Delbert and others, executors and trustees, from the decree of the court refusing a citation to James S. Huber to account. . This proceeding commenced by a petition filed by the same parties as in the preceding case, and, as therein, setting forth the provisions of the will of Frederick Gaul, Sr., deceased.

<p>1. A., the partner of B., having charge of the firm’s business at a particular place, employed a firm of which he was a member to conduct it for a commission ; the accounts rendered to B. showed that this was the course of dealing, and no objection was made, and the effect was to reduce the expense of transacting the business : Held, that B. could not, after dissolution and settlement, demand an account of A.’s share of such commissions.</p> <p>2. A. sold coal of his firm to another firm of which ho was a member,'with notice to his partner, and at the full market value: Held, that he was not liable to account for profits received by him as partner in the purchasing firm, although said firm took the coal to fill contracts for delivery at a larger price than they paid for it.</p>

1, of Philadelphia county: Of January Term 1876, No. 276. Assumpsit by Augustus Perrot to recover the value of services rendered to the city of Philadelphia as “ Superintendent of Music” in the public schools. The following case was stated for the opinion of the court:— “ By an act passed March 3d 1818 (Pamph.

<p>1. In the devolution of estates the law presumes that the possibility of bearing children exists, even when a woman has passed the age to which the ability to do so usually continues.</p> <p>2. A testator devised land to “ my daughter S. * * *, to be held by her husband in trust for her children.” By a codicil he provided as follows : “ In item (2) of my will the devise to my daughter S. and to her children is intended and shall give to her children living at her death and to the lawful issue of any of them if dead, in right of such one deceased, and to their heirs for ever, the real estate so devised and for want of such issue living, then that the real estate so devised to my daughter S. shall go to and vest in her husband during his natural life. * * *” S. had two children at the date of the will, one of whom afterwards died without issue. Two children were born after that date, one of whom also died without issue. S. and her husband (both then past seventy-five years of age) and the two surviving children, both sui juris and unmarried, contracted to sell the land. The purchaser refused the title and a case was stated for the opinion of the court. „•</p> <p>Held, that S. took a life-estate with a contingent remainder in the surviving children.</p> <p>Held, that if either of these children should die, leaving issue, during the life of S., such issue would not be barred by the deed of their parent, and that if other children should be born to S. and survive her, they would be entitled to a share in the estate.</p> <p>Held, that the law would not consider the physical impossibility of S. bearing children after she had reached the age of seventy-five years, and therefore the title tendered to the purchaser was not a marketable title.</p>

<p>Appeals from the Court of Common Pleas, No. 1, of Philadelphia, county : Of January Term 1875, Nos. 139 and 144-J.</p> <p>These were the appeals of Henry Phillips, Jr., administrator d. h. n. e. t. a. of the estate of Robert Morris, deceased, and Edward S. Lawrence, administrator de bonis non of John Nicholson, deceased from the decree of the court confirming the reports of the auditor made in the matter of the account of the Pennsylvania Company for Insurance on Lives and Granting Annuities, substituted trustees, by appointment of tbe Court of Common Pleas, of tbe estate known as “ The 381 Trust.”</p> <p>The fund in the hands of the accountant for distribution arises from the sum of $42,343.48, received December 3d 1862, from James Dundas, as surviving trustee of the North American Land Company, being a dividend on 6119 shares of stock in said company, awarded to James Dundas, deceased, the immediate .predecessor of the accountant in the trust, by the decree of the Court of Common Pleas for the city and county of Philadelphia, on the 6th day of July 1861, confirmed by the Supreme Court of Pennsylvania, on the 8th day of November 1862 ; the opinion of the latter court being reported in 7 Wright 23.</p> <p>The material facts of the case as disclosed by the report of the auditor, Furman Sheppard, Esq., may be stated as follows : — ■</p> <p>On the 20th day of February 1795, Robert Morris, JohnNicholson and James Greenleaf established an unincorporated association, by the name and style of “ The North American Land Company.”</p> <p>The founders above named being the owners of lands in the states of Pennsylvania, Virginia, North Carolina, South Carolina, Georgia and Kentucky, vested the titles thereof in three trustees, in trust, to convey the same agreeably to the written articles of association. The capital stock of the company is described by the articles as consisting of 6,000,000 of acres of land, situate in the states above named, which were represented by 30,000 shares of 200 acres each. Every owner of a share was to become and be a member of the company during the period of his ownership of the shares, to all intents and purposes as if he had signed and sealed the articles of association. In the 23d section of the articles, Morris, Nicholson and Greenleaf agree that the dividend or dividends of the company shall not be less then six per cent, per annum in every year, and in case the cash arising from sales of the land does not amount to that sum, they promise and bind themselves, their heirs, executors and administrators to advance and lend to the board of managers of the company such sum as may be necessary in addition to what they have in hand of the company’s money, to enable them to pay $6 on each share, and to secure this undertaking, Morris, Nicholson and Greenleaf agree each to deposit in the hands of the trustees 3000 shares, making 9000 shares in all. It seems, however, that only 4,479,317J acres of land were conveyed by Morris, Nicholson and Greenleaf to the trustees, which, in the proportion of one share for every 200 acres, were represented by 22,365 shares, which was the whole number issued. These shares were issued in equal proportions to each of the three founders, being 7455 shares to each. A corresponding reduction was also made in the number of shares deposited with the trustees by the founders to secure the six per cent, dividends, each founder depositing 2485 shares instead of 3000 shares. Subsequently, on May 28th 1796, by articles of agreement entered into between James Greenleaf of the one part, and Robert Morris and John Nicholson of the other part, Greenleaf sold to Morris and Nicholson, their heirs and assigns, equally as tenants in common, his ryhole interest in the North American Land Company, for the sum of $1,150,000, one-half of AYhich sum was to be paid in negotiable orders draAvn by Morris on Nicholson, payable to the order of Greenleaf and accepted by Nicholson, and to bear date May 28th 1796. The other half of said consideration was to be paid in orders of like date draAvn by Nicholson on Morris to the order of Greenleaf and accepted by Morris. These orders were payable respectively in one, tAvo, three and four years from date, and they were to be drawn for amounts particularly specified in the articles of agreement, which further declare that “ for securing the punctual payment of all the said orders, it is agreed that the said James Greenleaf shall not be obliged to make transfer to the said Morris and Nicholson of the shares in the said Land Company, hereby agreed to be sold, until the said, orders are paid,” &g.</p> <p>Subsequent to the making of the foregoing agreement, many of the notes and engagements of Morris and Nicholson given to Green-leaf, in pursuance of said agreement, were pledged by the latter, or by others by his direction, to sundry persons, as a security for the performance of his oato engagements and the engagements of other persons entered into upon his account, and several of said orders, notes and engagements were by an indenture, bearing date September 80th 1796, assigned by Greenleaf to George Simpson, in trust, for the security of Edward Fox; the deed by Avhich said assignment was made being commonly knoAvn as the “ 391 deed.”</p> <p>On the same day, viz., September 30th 1796, Greenleaf executed another deed to the said George Simpson, in trust, reciting, inter alia, the facts just mentioned, and declaring it to be his, Greenleaf s, intention, that all persons holding or interested in said orders, notes or engagements, should have the full benefit of the securities which he had received from said Morris and Nicholson or either of them. This last-mentioned deed is commonly called the “ 381 deed.” The present accountant is the substituted trustee thereunder, and the present fund for distribution belongs to the trust created by the deed. The deed in question transfers to said Simpson all and singular the lands, tenements, hereditaments and property, and estate, both real and personal, therein mentioned, to have been received by him, the said Greenleaf, as a security for the said orders, notes, and engagements of said Morris and Nicholson, or either of them, together with the deeds and writings touching the same, and all appurtenances of every kind to the same belonging; including shares of stock, in the North American Land Company, agreed to be delivered by Morris and Nicholson to Greenleaf to secure their notes or obligations, all to be held by said Simpson, in trust upon the nonpayment of any of said orders, notes or engagements, on the request of any of the holders of said notes or engagements, to sell the property conveyed by the deed, and apply the proceeds thereof to the discharge of the said notes, orders or engagements.</p> <p>The drafts of Morris and Nicholson were not paid, and the shares were never transferred to them. On the 8th day of March 1797, James Greenleaf, by sixteen several assignments, bearing date on that day, conveyed to Henry Pratt, Thomas Willing Francis, John Miller, Jr., John Ashley and Jacob Baker, successors to George Simpson as trustees under the “ 381 deed,” the shares specified in said assignments respectively, including the 10,000 shares sold to Morris and Nicholson, subject to the conditions and appropriations made and contained in the “ 381 deed.”</p> <p>Of the shares referred to in these sixteen assignments only 6119 were transferred to Pratt and others, the trustees of the “ 381 trust” by the agents of Greenleaf.</p> <p>Subsequently, on the 26th day of June 1797, an indenture of four parts was made by and between James Greenleaf, of the first part, Edward Fox, of the second part, Morris and Nicholson, of the third part, and Pratt, Francis, Miller, Ashley and Baker, of the fourth part. This indenture recites that Pratt and others, parties of the fourth part, are possessed of notes and acceptances of Morris and Nicholson in favor of Greenleaf, which they hold in trust for certain creditors of Greenleaf, or which they purchased for the use of the trusts reposed in them under assignment from George Simpson, therein referred to, and for the better securing the debts therein intended to be secured, conveys certain property therein mentioned to said Pratt and others, in order that with the property theretofore conveyed, one aggregate fund may be constituted for the security of said indebtedness in the manner therein more particularly mentioned. In this deed Morris and Nicholson agreed that their notes and acceptances therein mentioned and enumerated in a schedule attached to the deed, should “be considered as real, boná fide debts of them the said Robert Morris and John Nicholson jointly and severally, without any plea of defalcation or set-off, either in law or equity, and that all securities of every kind heretofore given by them or either of them, for the securing the payment of the said notes and acceptances, or any of them, are hereby confirmed and made good and valid to all intents and purposes, so far as the same relates to the said notes and acceptances and no further.” The schedule attached to said deed enumerates notes and acceptances amounting to $831,500. This last-mentioned deed is known as “ The Aggregate Fund Deed.”</p> <p>The present accountant, is the successor of the original trustee under the “ 381 deed.” The fund in hand is, as above stated, the proceeds of 6119 shares of stock of the North American Land Com - pany, which have been judicially awarded to this trust, and to tne immediate predecessor of the accountant as trustee, upon a state of facts which has been judicially ascertained. The books, papers, exhibits, evidence and testimony generally, before the auditor of the first account of the North American Land Company, and reported by him to the court, and appearing in the printed paper books of that case, have been used and referred to by counsel with like effect as if given in evidence anew in the present hearing. The immediate question in the present reference is therefore solely one of distribution.</p> <p>On behalf of the Pennsylvania Company for Insurance on Lives and Granting Annuities, successor of James Dundas, deceased, late trustee of the Aggregate Fund, claim was made for such portion of the fund in hand as should be found applicable to the payment of the following notes and drafts belonging to that trust, viz.:—</p> <p> </p> <p>The notes and drafts mentioned in the foregoing list “A” are a portion of those secured by shares in the North American Land Company, specified in schedules D., E., F. and G. of the 381 deed, the particular notes and drafts applicable to each schedule being as stated in the above list. They also form part of the $831,500 of notes and acceptances referred to in the Aggregate Fund Deed, a list of which was annexed to that instrument.</p> <p>All o^the drafts of May 28th 1796, in the list above mentioned, amounting in the whole to $532,500, were produced at the audit by the counsel of the claimant; but of the $95,000, of the notes of Nicholson to Greenleaf, dated December ,21st 1795, therein mentioned, four only, of $5000 each [being the 13th item on the Aggregate Fund Deed list], in all $20,000, were produced, while of the $75,000 of notes of same date, of Morris to Greenleaf, four only, of $5000 each [being the 12th item of the Aggregate Fund Deed list], in all $20,000, were produced. The last two notes in said list, for United States Bank shares, valued at $52,000 each, total $104,000, were also produced, thus making the entire amount of original notes and drafts produced $676,500. Mr. Tilghman, the counsel, stated that he had no recollection of having ever seen, and had been unable to find among the papers of the Aggregate Fund Trust, the missing notes for $129,500, and that of those produced, $145,000 had been found by him on the 9th of June 1848, by mere accident, among the papers of the late Edward Tilghman, Esq., the original counsel [in 1797] of the trustees of the Aggregate Fund. He contended before the auditor, however, that sufficient proof of the title of the Aggregate Fund Trust to the whole $806,500 of notes, above mentioned, was furnished by the deed of June 26th 1797, creating that trust, and that the admission of that fact therein made by Morris and Nicholson,- as well as by Green-leaf, was at least primá facie evidence of such title at the present time, and rendered the production of the notes unnecessary.</p> <p>The auditor, however, was of a different opinion, and that nothing short of regular secondary evidence establishing the actual loss of the notes should be relied on as a substitute for their production. He accordingly entertained the claim of the Aggregate Fund Trust to the extent of $676,500 of notes given in evidence, and rejected it as respects the $129,500 of notes not produced or accounted for.</p> <p>The claim thus made in behalf of the Aggregate Fund Avas opposed by Messrs. LaAvrence and Ingersoll, who made the folloAving claims:—</p> <p>“1. Greenleaf must make good to Morris and Nicholson the 10,000 shares he sold them, or restore to them their drafts.</p> <p>“2. He must pay to them the $25,000 he agreed to pay [contained in articles of agreement between Greenleaf, Morris and Nicholson, above mentioned], with interest, less credit of amount received by Mr. Morris, $4738.</p> <p>“ 3. the trustee must account for the difference between 6119 and 10,000 shares.”</p> <p>The auditor’s conclusions were:—</p> <p>“Morris and Nicholson are parties to the Aggregate Fund Deed, and they therein and thereby declare that the notes and acceptances referred to in that deed as being held by Pratt and others, the trustees, and enumerated in the schedule attached thereto, ‘ shall be considered as real and boná fide debts of the said Robert Morris and John Nicholson, jointly and severally;’ and all securities given by them or either of them for securing the payment of said notes and acceptances, or either of them, are thereby ‘ confirmed and made good and valid to all intents and purposes, so far as relates to the said notes and acceptances and no further.’</p> <p>“As between Morris and Nicholson on the one hand, and the trustees on the other, this is a conclusive admission that the trustees are the holders of the notes and acceptances in question, so that as against the representatives .of Morris and Nicholson the title is to be regarded as in the trustees.</p> <p>“ The various views pressed on behalf of the estates of Morris and Nicholson seem to begin or terminate in what substantially amounts to a claim of performance by Morris and Nicholson of the terms of the articles of agreement of sale between them and Green-leaf. ' '</p> <p>“ In Moss’s Appeal and Halsey’s Appeal, 7 Wright 23, the Supreme Court has determined what was the legal relation to each other of the parties in that transaction. ‘ The only equitable right,’ it is said, ‘ which Morris and Nicholson could have to demand the stock must have arisen out of payment. Nothing less could ever have entitled them to specific performance. In fact they never did pay. ’ It is not pretended that they did, unless indirectly through what is called the Aggregate Fund Deed, and after a careful in ves-• tigation we have been unable to discover any evidence that the drafts were ever actually paid or in any manner satisfied.’</p> <p>“ The evidence in the present reference is the same as that before the Supreme Court as to which the above opinion was expressed.</p> <p>“As Morris and Nicholson, in the Aggregate Fund Deed, admitted the title to the drafts and acceptances in question to be in the trustees as against themselves, and as their position was analogous to that of complainants in a bill for specific performance, which would require payment on their part in order to give them an equitable standing, and it is asserted by themselves in the Aggregate Fund Deed that those are bonfi fide debts, and it appears by the evidence, and has been judicially declared, that ‘ they never did pay,’ the auditor believed it his duty to disallow the claim made in their behalf.</p> <p>“ On the other hand, the auditor allows the claim in.behalf of the Aggregate Fund Trust, and it remains to consider in what manner the balance for distribution is applicable to the various classes of the notes and drafts above referred to. It is clear from the terms of the ‘ 381 deed’ that the collaterals mentioned in each of its several schedules are a security only for the notes and acceptances mentioned in that schedule, or in other words, that the notes specified in one schedule are not secured by the collaterals mentioned in another.</p> <p>“ The present fund arises exclusively from 6119 shares of the North American Land Company, being only a portion of such shares mentioned as collaterals in the aforesaid schedules D., E., F. and Gr., and of the claims entertained and allowed by the auditor, as above mentioned.</p> <p>§20,000 are for notes secured by shares referred to in schedule D.</p> <p>20,000 “ “ “ “ “ “ “ E.</p> <p>104,000 “ “ “ “ “ “ “ E.</p> <p>532,500 “ “ “ “ “ “ “ Gr.</p> <p>“ It accordingly becomes necessary to ascertain in what way the 6119 shares from which the fund is derived should be divided among the above-mentioned schedules. On this subject it appears to be established, that of the 6119 shares in question, 4970 shares appertain exclusively to schedule G. That schedule embraced the whole of Greenleaf’s original interest in the land company, which consisted nominally of 10,000 shares. Of these, however, 2545 shares were never issued, the land which they were to represent never having been conveyed to the company, and 2485 shares were at the time of issue deposited as security for dividends, and by a decree of this court, affirmed by the Supreme Court, are to be regarded as the property of the company, and therefore as merged. These reductions reduce the number of shares actually issued to or on behalf of Greenleaf to 4970.</p> <p>“ The identity of 3869 of the 6119 shares with Greenleaf’s original shares is quite evident. They consist of the 791 transferred by G. Simpson, and 500 transferred by W. T. Franklin, the 1130 transferred by Bird, Savage & Bird, 500 of the 1700 transferred by S. Bourne, and the 948 by assignment by transfer, No. 15 of those dated March 8th 1797, from Greenleaf — total 3869. The remaining 1101 shares of the 4970 are derived from 1200, the balance of the 1700 above mentioned as transferred by S. Bourne. It appears from page 16 of the North American Land Company’s journal, that of the entire 1800 shares, which on March 10th 1795 had been issued to Bourne, 600 each by Morris, Nicholson and Greenleaf, respectively, to hold in trust for them, Morris and Nicholson had equitably assigned their 1200 to Greenleaf, and recognised them as his property. From the nature of the transaction it is probable that this may be regarded as an exchange or loan of shares, and hence that so many of those shares as are needed for the purpose, to wit, 1101 shares, should be regarded as having taken the place of Greenleaf’s original shares. The auditor accordingly finds that schedule G. is to be considered as embracing such part of the fund as has been derived from 4970 shares of the North American Land Company. In regard to the other schedules, D., E. and F., the effort made to identify the particular shares embraced by them, respectively, has not been successful, and under such circumstances the auditor accordingly proposes to divide the 1149 shares among them, in the proportion of the amount of notes embraced by each to the whole amount embraced by all. Such division appears, however, to be of little, if any, practical importance as regards the present distribution, inasmuch as all the notes above mentioned, as allowed to come in upon all the said schedules, are presented by the same claimant.</p> <p>“ The auditor accordingly awarded to ‘ The Pennsylvania Company for Insurance on Lives and Granting Annuities,’ substituted trustee of the estate known as the Aggregate Fund, appointed by the honorable court on the 23d day of December 1865, in the place of James Dundas, deceassd, trustee, the following sums, viz.:—</p> <p>“ 1. On account of the amount due on the above-mentioned notes for $20,000, secured by schedule D., the sum of ...... $2304.80</p> <p>2. On account of the amount due on the above-mentioned notes for $20,000, secured by schedule E., the sum of....... 1809.44</p> <p>3. On account of the amount due on the above-mentioned notes for $104,000, secured by schedule F., the sum of ....... 3790.88</p> <p>4. On account of the amount due on the above-mentioned notes for $532,500, secured by schedule D., the sum of....... 34,193.60</p> <p>$42,098.72”</p> <p>Exceptions were filed to the report of the auditor, but before argument in the court below, the decision reported in 10 P. F. Smith 247 was made, reversing the former decision as to the liability of Morris and Nicholson under the 6 per cent, guaranty-covenant. Upon the suggestion of counsel, the court below remitted the report to the auditor, “ to enable parties supposed to be affected by the decision of the Supreme Court to be heard, without the court expressing any opinion upon the question whether the rights of the exceptants are affected by said decision.” Under this order the auditor made a special report. After discussing the extent of the special order, he reports:—</p> <p>“ The subject of present investigation being therefore regarded as restricted to an inquiry into the import and effect of the decision in 10 P. F. Smith, page 247, &c., it accordingly becomes necessary . to examine that case, and to ascertain as clearly as possible what it is that is therein adjudicated. This may, perhaps, become more evident by a brief reference to some antecedent matters.</p> <p>“ The matter came before the Supreme Court in 1862, in Moss’s Appeal and Halsey’s Appeal, reported in 7 Wright 23. In that case the court treat the six per cent, guaranty of Morris, Nicholson and Greenleaf as imposing ‘an annually recurring obligation, an obligation as long-lived as the association itself,’ and as being ‘ a fundamental regulation for distribution, an organic law of the association, stamped upon the deed of settlement by the founders themselves.’ It was there held that as Morris, Nicholson and Greenleaf claimed under the articles of the association, which included the six per cent, guaranty, they were bound' thereby, and that ‘ by no act of theirs can they deprive those who obtained certificates from them of the right to receive out of the funds of the company the dividends which the fundamental articles assured.’ The preceding case was a review, upon appeal, of the report of the auditor upon the first account of the trustees of the North American Land Company.</p> <p>“ Subsequently, in 1862, the report of the auditor upon the second account of the surviving trustee of the same company came before the Supreme Court upon appeal, and is reported and decided in 10 P. F. Smith 247, &c., being the case referred to in the order of court, and the immediate occasion of the present inquiry under, said order. In this connection it may be observed, that it is one of the facts in the history of these transactions, that the affairs of the North American Land Company, shortly after its organization, became so much embarrassed that it was found necessary to modify the original articles of association. Alterations of those articles, or supplementary articles, were accordingly proposed, and were adopted in 1807, by more than the required two-thirds vote of the stockholders, and on April 27th 1808, the trustees under the original articles conveyed the lands held under those articles to the managers appointed under the supplementary articles. The details connected with this reorganization of the company, or alteration of its articles of association, formed a part of the evidence before the auditor of the first account of the trustees of the land company, and the same evidence was before the Supreme Court when the report upon that account was reviewed and passed upon in 7 Wright 23. It should be added, also, that the same evidence was before the present auditor when he audited and reported upon the account of the trustees of the 381 trust.</p> <p>“ In the matter of the audit of the second account of the trustees of the land company, it appears from the reporter’s statement of the case in 10 P. F. Smith, p. 254, that after the argument in the Supreme Court upon the exceptions to the auditor’s report upon said second account had taken place, the report was recommitted to the auditor, to examine and report to that court ‘ what effect, if any, the adoption of the supplementary articles had on the 23d article,’ viz., the articles containing the six per cent, guaranty or covenant. The auditor made a special report in pursuance of that order, and stated his conclusions to be, that the adoption of the supplementary or additional articles had the legal effect, not only of releasing all claim against the covenantors under the six per cent, guaranty, for default in the. past, but of annulling or extinguishing the covenant itself. This view was adopted by the Supreme Court. The special report of the auditor was confirmed, and the case was recommitted to him to make distribution. The effect of the supplementary articles upon the twenty-third of the original articles, which contained the six per cent, covenant, appears to be the only subject which is considered and adjudicated in the case in 10 P. F. Smith 247, and no reference is made in the opinion of the court to the opinion in the prior case in 7 Wright 23.</p> <p>“ Having thus endeavored to ascertain the nature of the decision of the Supreme Court in 10 P. F. Smith 247, the next inquiry that arises relates to the effect of the decision upon the report of the present auditor as heretofore made. That report set forth a distribution of a fund which by the case in 7 Wright 23 had been judicially awarded by the Supreme Court to the ‘ 381 trust.’ The claims that were made upon the fund, during that audit, in behalf of the respective estates of Morris and Nicholson, are stated and set forth in the, report.</p> <p>“ Those claims were overruled, and the balance of the fund, after certain deductions, was awarded to the substituted trustee of the Aggregate Fund.</p> <p>“The learned judge, in delivering the opinion of the Supreme Court, in 7 Wright 23, states that there are four principal classes of questions in the case, and these, as enumerated on page 29 of the-report, are first, What rights, if any, were by the articles of association secured to the other shareholders as against Morris, Nicholson and Greenleaf? The second relates to the claims of Morris and Nicholson as creditors. The third question is, Into how many shares the fund for distribution is to be divided ? And the fourth relates to the ownership of the shares.</p> <p>“ These questions are discussed separately and consecutively in the opinion. As respects the first of these inquiries, the court evidently treat the six per cent, covenant as having an effective legal bearing upon the point under consideration, as giving rights to the other shareholders as against the covenantors and their representatives, and as postponing in the distribution the shares of stock held by Morris, Nicholson and Greenleaf, until the other shareholders have received their arrears of the guaranteed six per cent, dividend. This part of the ruling of the Supreme Court appears by the perusal of it to be based upon a view of the six per cent, clause, which seems to have been subsequently abandoned in 10 P. F. Smith 247.</p> <p>“ The remaining question of the four above mentioned relates to the ownership of the shares upon which the dividend was to be made, and it is this part of the opinion of the court which more immediately concerns the present reference. On page 31 the court takes up the subject of the claim of the ‘ 381 trust’ to 6119 shares. This claim was opposed by the appellants (the representatives of Robert Morris and John Nicholson, respectively), who claimed that the shares above mentioned, which stood in the name of the ‘ 381 trust,’ in reality belonged to them, the appellants. It is stated by the court that ‘ the appellants rest their title upon articles of agreement made on the 28th day of May 1796, between Greenleaf of the one part, and Morris and Nicholson of the other. By these articles it was agreed that Greenleaf should sell to Morris and Nicholson his whole interest in the North American Land Company, consisting of 10,000 shares, for the sum of fl,150,000, payable one-half in drafts of Morris on Nicholson, accepted by him, and the other half in drafts drawn by Nicholson on Morris, and accepted. The drafts were made payable in one, two, three, and four years from date. The articles stipulated that the stock agreed to be sold should not be transferred, but should be retained by Greenleaf until the drafts should mature and be paid, with a proviso that on the payment of a part, a proportional part of the stock should be transferred.’</p> <p>“It will be seen from the foregoing language enrployed by (he court, that the appellant’s claim of title was based upon the articles of agreement dated May 28th 1796. The court in construing those articles decide expressly that they do not amount to a legal transfer of the shares, but that they constituted, at most, an executory agreement, of which the appellants were in effect asking a decree for specific performance. After thus stating the general nature and character of the appellant’s claim, the court say, that as the agreement of Greenleaf' to transfer the stock was executory, the only equitable right which Morris and Nicholson could have to demand the stock, must have arisen out of the payment of the drafts, and that nothing less could have entitled them to specific performance. Thereupon it is expressly said by the court that it is not pretended that they did pay, unless indirectly through what is called the Aggregate Eund Deed. The conclusion stated by the court is, that after a careful investigation they have been unable to discover any evidence that the drafts were ever actually paid, or in any manner satisfied, and that evidence of actual payment of the acceptances utterly fails. This is the ground upon which the decision of this part of the case is based by the court, and it will be seen that it contains no reference whatever to the six per cent, covenant, and that said covenant does not in any way appear to constitute an element in the adjudication of the court. It is true, that after this statement of facts and expression of opinion, the court ask what it would avail Morris and Nicholson, even if it were conceded that they were in a position to ask specific performance in their favor ? In connection with this inquiry, the opinion of the court proceeds to say : ‘ the entire dividend on the 6119 shares would be absorbed in the debts due by them to the company, and in the claims of the other shareholders under the six per cent, guaranty, and still these debts and claims would be far from satisfied; in no aspect of the case, therefore, can a dividend upon those shares be made to the appellants. ’</p> <p>“ The auditor understands this language of the court as meaning, firstly, that under the construction given to the articles of agreement of May 28th 1796, by which they were held to be executory in their nature, and in view of the default of Morris and Nicholson in payment of the acceptances, which Avere the consideration thereof, their representatives had no valid claim to a dividend; secondly, that even if this were conceded to be otherAvise, it would not practically avail Morris and Nicholson, because the six per cent, covenant, and their debts to the company, Ayould absorb the dividend ; and thirdly, the conclusion is, that in no one of these íavo aspects of the case can a dividend upon the shares in question be made to the appellants.</p> <p>“ The inquiry by the court as to how far it would avail Morris and Nicholson, even if it Avere conceded that the prior reasons given for overruling their claim of title were erroneous, appears to be a cumulative consideration, Avhich is merely adverted to by the court as a matter affecting the result in case the decision AYere othenvise, and not brought forward as a basis of the decision. Or if it be regarded as a case in AYhich tAYO distinct and independent reasons for the judgment are assigned by the court, and it is expressly asserted that either of them is of itself amply sufficient to sustain the judgment, it cannot certainly be contended Avith success that the entire judgment falls, because subsequently one of those reasons is pronounced to be inadequate. The auditor cannot avoid the conclusion that in discussing and deciding the claim of title made in behalf of Morris and Nicholson to the 6119 shares, the existence or operation of the six per cent, covenant does not appear by the language of the court to have constituted an element of the actual ratio decidendi ; and he is therefore unable to say that the decision upon the question of title, and the aAvard made to the ‘ 381 trust’ in 7 Wright 23, Ayould have been otherwise, even if the same vieAY of the six per cent, covenant had been taken in that case Avhich Avas subsequently taken in 10 P. F. Smith 247.. The auditor is also unable to say that the case in 10 P. F. Smith 247, should have the effect of modifying the report as heretofore made by him. The passage in that report, in which the claims of Morris and Nicholson are referred to and disposed of, has been already quoted in full, in order that it may appear that the six per cent, covenant is not an element which is taken into consideration in reaching the conclusions there stated. It is not even mentioned or referred to in connection with that part of the report, as contributory in any respect to the reaching of those conclusions. That there has been a change in the view taken by the Supreme Court touching the six per cent, covenant, does not seem to be seriously disputed by any of the counsel. But the auditor is of opinion, as respects this part of the case, that such change of view does not affect the construction of the agreement of May 28th 1796, or the deductions from the evidence, in pursuance of which the Supreme Court, in 7 Wright 23, established the title of the ‘381 trust’ to the shares in question, as against the claims of title made in behalf of the representatives of Morris and Nicholson, and that consequently that title and those claims should stand in the position in which they were placed by the case in 7 Wright 23, notwithstanding the subsequent decision in 10 P. F. Smith 247.”</p> <p>Exceptions were filed on behalf of the representatives of Morris and Nicholson. The court below dismissed the exceptions and confirmed the original and special reports, Allison, P. J., delivering the opinion. After stating the history of the case and the provisions of the different deeds of trust, he says:—</p> <p>“ To the conclusion of the auditor awarding the fund in the hands of the accountants to the Aggregate Fund Trust, exception is taken on various grounds, and by different parties. Much stress is laid on the clause of the Aggregate Fund Deed Avhich excludes the 1381 deed’ and property therein mentioned from the operation of the Aggregate Fund Deed; but as w'e have seen, by quoting the express objects to . be accomplished by the creation of the latter trust to what it applied, this clause can be regarded in no other light than as guarding, by express terms of exclusion, the ‘ 381 deed’ from all benefit of the trust created by the Aggregate Fund Deed. It is no more than declaring that the property set apart in the Aggregate Fund Deed, for certain specified objects, Avholly separate and distinct from those which the ‘ 381 trust’ was created to secure, shall not be applied to the ‘ 381 trust.’ The mistake of the exceptants, under this head of objection, is in supposing that such is the effect of the award of the auditor, which is founded solely on the fact that the trustees under the Aggregate Fund Trust are the legal holders of the notes and acceptances produced by them, to secure the payment of which the 6119 shares of stock Avere set apart by Greenleaf. For whose benefit they hold is another question, which can hereafter be raised at the proper time and in the proper forum. No presumption of payment of these notes arises from the fact that they are in the hands of the present accountants, who are trustees of the Aggregate Fund Trust. This position is fully answered by the restatement of the fact that when the Aggregate Fund Deed was executed, Morris and Nicholson recognised the existence of the notes as well as their entire obligation to pay the same, and that they were, as to, the holders, the predecessors of the present accountants, wholly without defence.</p> <p>“It is also contended, against the report, that certain of the exceptants have had no day in court, the auditor, J. A. Phillips, having dismissed their claim for want of jurisdiction, holding that the proper time to present it would be on the settlement of the present account of the ‘ 381 trust.’ The report of auditor Phillips was confirmed by the Court of Common Pleas, and this it is now contended has left them without a hearing upon the merits. But the whole case, including the voluminous testimony taken before the auditor, went up to the Supreme Court, and was fully considered in Moss’s Appeal and Halsey's Appeal, 7 Wright 23. No one who reads the lengthy and well-considered opinion in that cáse can doubt that it was considered in the court upon its merits; it is decided on no technical ground, but on the broad principle that the present exceptants are without merit, that they have no standing as claimants for proceeds of 6119 shares of stock until they prove actual payment of the notes, and this the Supreme Court say they have not done. The contract of May 28th 1796 is held to be not a sale absolute for notes, with a pledge of the shares as security, but an executory contract to sell, and is incapable of any other construction. The power of the Supreme Court to go into the merits of the questions as to which the auditor and court below had decided they were without jurisdiction, is denied; and all that that court have said, under this head, in Halsey’s Appeal, is characterized as mere obiter dictum. We are invited, in the argument submitted, to hold that the Supreme Court having no jurisdiction, its decision of the £ 381 trust’ is neither conclusive in law nor in fact, and is coram non judice. To sustain this doctrine, counsel has cited Frantz v. Brown, 17 S. & R. 292; Schuylkill County’s Appeal, 2 Wright 459; Jones v. Jones, 2 Jones 355. But we do not feel free to adopt this suggestion, and thus disregard the decision of the Supreme Court, and hold that it £ can have no judicial weight with this court in now deciding the question.’ We prefer that the tribunal which decided Halsey’s Appeal should themselves first adopt this view, if the reasoning pressed upon our consideration be well grounded.</p> <p>“ Several positions were taken before the auditor by the counsel representing Halsey, administrator d. b. n. of John Nicholson, deceased, which are stated _ by the auditor in his report to be: 1. Greenleaf, represented by the accountants, must make good to Morris and Nicholson the 10,000 shares which he sold to them, or restore to them their drafts. 2. He must pay them the $25,000 which he agreed to pay by the articles of May 28th 1796, the same under which he agreed to sell all his interest to Morris and Nicholson in the land company for $1,150,000, less $4738/ 3. The trustee must account for the difference between 6119 and 10,000 shares. The auditor does not in his report reply in detail to these several positions taken in behalf of the administrator of John Nicholson, deceased, but says the various views pressed on behalf of Morris and Nicholson seem to begin and terminate in what substantially amounts to a claim of performance by them of the terms of the articles of agreement of sale between them and Greenleaf. Rut that there had not been performance was settled in Halsey’s Appeal, and there has been no attempt to show the contrary in point of fact up to this time; all subsequent effort, if such has been made, has brought no fact to the front which even tends to show actual payment, and the Supreme Court have said that to set up a presumption of payment will not suffice. In further support of the views of this exceptant, an equitable ground is assumed ; that Greenleaf, having taken to himself the benefit of the $1,150,000 of notes, those claiming under him should be postponed to the claim of Morris and Nicholson, who have never derived one cent of profit from what they thus bought and paid for. Rut what did they pay ? Promises which they never fulfilled; worth up to this hour to the holders just the value of the several pieces of paper on Avhich they are written.</p> <p>“ The answer to this position of this exceptant is, that if Morris and Nicholson claim an equitable enforcement of the agreement with Greenleaf they must first do equity. There can be no enforcement of specific performance till the party asking relief shows performance, or the tender of it, on his part. This is what the Supreme Court has already settled in this case as applicable to this very demand ; recognising the justice of this decision, we have neither the disposition nor the power to dispute or overthrow it. It stands in the way of this exceptant, so that he cannot advance a single step in furtherance of either of his propositions until he removes this barrier. To every demand which he may make, until this is done, the conclusive answer is, that as a condition precedent to the enforcement of a transfer of stock to you, you promised to pay your notes and engagements, and this you have not done; and the express agreement further was, that James Greenleaf was not to transfer until you did pay. Neither does the resulting trust, in favor of Morris and Nicholson, become effective until the notes which the stock was assigned to protect have been paid.</p> <p>“ The auditor recognises the claim of the trustees of the Aggregate Fund Deed as the holders of $676,500 of the notes produced by them, and rejects the claim set up by said trustees to other notes amounting to $129,000, because they were neither produced nor shown to be in the actual or constructive possession of the claimants. In this, we think, he decided correctly; the recognition of these $129,500 of notes in the deed of June 26th 1797 does not of itself show title in the trustees of that deed.</p> <p>“We cannot sustain the exceptions filed by certain shareholders in the North American Land Company, represented by Mr. Wain. The exception is, that the whole fund should have been awarded to the shareholders of said company, and not to the trustees of'the Aggregate Fund Trust; but if we understand the grounds upon which this claim is based, it is that the conditions on which the ‘ 381 trust’ was executed, never having been complied with, the property did not pass under the deed, and it should go to the shareholders other than Morris and Nicholson, under the decision of the Supreme Court in Halsey’s Appeal, 7 Wright 23, as to the effect of the covenant of guarantee. . If this is the basis on which this claim rests, the decision in 10 P. F. Smith 247, which swept away this covenant, would seem to take from this claim all the support it ever possessed.</p> <p>“ But the alleged non-execution of the ‘ 381 trust’ cannot avail to set that trust aside as far as Morris and Nicholson are concerned, and reinstate them in the position in which they stood before the ‘ 381 deed’ was executed. They subsequently became parties to the Aggregate Fund Deed, which recognises the existence at that date of the ‘ 381 deed,’ and the appropriation of property therein mentioned to the uses of that trust. It is too late to raise such a question as this after actual and presumed ratification by Morris and Nicholson, or to hold, that by reason of an assumed non-execution of that trust, Morris and Nicholson, though reinstated, are to be postponed to the other shareholders of the company.</p> <p>“ These are all the questions AYliich present themselves upon the first report of the auditor on the ‘ 381 trust.’ When they were first called for argument, and, indeed, after the argument had somewhat progressed, it was suggested that an appeal was pending in the Supreme Court upon exceptions to the decision of the Common Pleas upon the report of John M. Collins, Esq., auditor appointed to distribute the balance appearing on the second account of James Dundas, surviving trustee of the North American Land Company. It was agreed to by counsel, that the exceptions should stand over until the decision of the Supreme Court should be made. After that decision had been announced, which is reported in Ingersoll’s and Dales’s Appeal, 10 P. F. Smith 247, the following order was made: ‘ It is ordered that this report (upon which wre have just remarked) be remitted to the auditor, to enable parties supposed to be affected by the decision of the Supreme Court, to be heard, &c., without the court expressing any opinion upon the question whether the rights of the exceptants are affected by said decision.’ The whole case then went back to the present auditor, which opened before him for argument the questions upon which he had originally passed. The auditor, however, upon the making up of his second report, correctly construes the order of reference as raising before him the question intended by the court, namely, to inquire and determine whether or not, if the decision in 10 P. F. Smith 247 had been made before the conclusion of the audit, or the filing of his report, it would have had such legal bearing upon the subject before the auditor as to require a modification of the conclusions as stated, or the award as made by him. Resting on this conclusion, the auditor proceeded to examine Ingersoll’s and Dales’s Appeal, in order to ascertain what it is that is therein adjudicated, so as to reach a conclusion as to the effect of that decision upon the award which he had made in his first report.</p> <p>“ Under the original articles of association, whereby the company was constituted in 1795, the.founders, as previously stated, agree that the dividends of the company shall not be less than six per cent, per annum in every year; for the payment of which they made, as they supposed, ample provision, and made themselves personally responsible to make good any deficiency arising from the sales of land to secure the payment of the dividend of six per cent, to the shareholders. In Moss’s and Halsey’s Appeal, 7 Wright 23, the Supreme Court, in 1862, decided that this guarantee imposed an annually recurring obligation as long-lived as the association itself; that as it was a fundamental article of the association, constituting a part of the original contract between the founders of the company and the shareholders, it was not avoided by long disuse and non-claim. In Ingersoll’s and Dales’s Appeal, the court held that the agreement organizing the company provided for a change in the articles, which was afterwards duly and properly made, and that the pledgors were not bound unless it clearly appeared that they had agreed to do so, to transfer or. carry over into the organization as changed their original guarantee.</p> <p>“The power to effect a change in the articles of association, and the fact that they were materially changed by a vote of the shareholders, was overlooked by the court in Halsey’s Appeal, 7 Wright 23, and it was there held, that as Morris and Nicholson claimed under the original fundamental articles which included the six per cent, guarantee, they were bound thereby, and that by no act of theirs could they deprive those who obtained certificates from them of the right to receive out of the funds of the company the dividends which those articles assured to them.</p> <p>“ This six per cent, guarantee clause having afterwards been decided to have no present standing in the case, the question presented itself in what manner does the last decision of the Supreme Court affect the questions which arose upon the report of the auditor under the 1 381 trust ?’ The auditor makes reply to this inquiry, by saying that it nowhere appears in his report that in determining between the respective claims of Morris and Nicholson on the one ' hand, and, the Aggregate Fund on the other hand, he was influenced by any considerations connected with the existence or non-existence or effect of the six per cent, guarantee clause. An examination of the report fully sustained this assertion. Nor does the opinion of 7 Wright 28 rest upon this clause of the original agreement, but upon the fact of not having paid the notes and acceptances given to Greenleaf, who, by the articles of sale of his interest in the company to Morris and Nicholson, was to retain his stock as security for the payment of the notes, and who afterwards assigned all his interest to secure his creditors. Until payment was shown, the resulting interest of Morris and Nicholson could not be made available to them, and indeed that they had no right or interest in the shares which they had agreed to purchase from Greenleaf until they paid their notes.</p> <p>“ The agreement was but executory, with no right to call upon Greenleaf to transfer his interest in the company until they had complied with their obligation, and paid the notes and acceptances, which were the consideration for the agreement on the part of Greenleaf to transfer his stock. The court add to this statement the conclusion that if the difficulty of which they had treated was out of the way, and upon which the decision rests, namely, an entire want of equitable or legal right, growing out of the fact that the notes still remained unpaid to the assignees of Greenleaf, it still would not avail to carry the stock to Morris and Nicholson, because the entire dividend on the 6119 shares would be absorbed by debts due by them to the company, and in the claims of other shareholders under the six per cent, guarantee. This was but the statement of a fact which the court held would arise to defeat the claim of Morris and Nicholson, if the ground on which the decision is based was out of the way. It becomes unimportant, therefore, to this cause that the original six per cent, covenant would no longer avail to defeat the claim of Morris and Nicholson, unless the first and more material objection, non-payment-of the notes, be also shown to be a mistake in fact or in law. If payment can even now be shown this difficulty will disappear, and Morris and Nicholson, resurrected in the persons of their legal representatives, will take the fund in controversy, but they cannot be allowed to take it on the mere presumption of pay'ment, growing out of the lapse of time ; for to allow this would be, as the court say in Halsey’s Appeal, to present the case of a chancellor, moved to decree specific performance of one who had not complied with his engagements, but had remained quiescent until he had been discharged by lapse of time. The significant question is then asked, Was ever such a foundation for an equity successfully set up ?</p> <p>“For the reasons stated, we agreed with the auditor that the change of view taken of the six per cent, guarantee by the Supreme Court does not affect the construction of the agreement of May 28th 1796, or the deductions from the evidence, in pursuance of which that court, in 7 Wright 23, established the title of the ‘ 381 trust’ to the shares in question, as against the claim of title made in behalf of the representatives of Morris and Nicholson. Thus holding, we dismiss the exceptions and confirm both reports of the auditor.”</p> <p>The assignments of error were for dismissing the exceptions and confirming these reports.</p>

<p>Error to the Court of Common Pleas of Berks county: Of January Term 1876, No. 219.</p> <p>Covenant by the American Iron Bridge Manufacturing Company against the Monocacy Bridge Company.</p> <p>Defendants pleaded covenants performed, absque hoc. The facts were these: On the 22d of April 1870, the defendants advertised for proposals to be received on the 7th of May following for the erection of a bridge of wrought iron over the Schuylkill river near Monocacy Furnace. By the terms of this advertisement the bridge was “ to be of sufficient strength and warranted to carry a load of one ton to each lineal foot, proposals to specify the greatest strain per square inch in pounds to which the metal will be subjected in sustaining the weight required, viz., one ton to each lineal foot.” On the 4th of May, the plaintiffs, in a letter by James McCarty, the president of the Iron Bridge Manufacturing Company, to the secretary of the Monocacy Bridge Company, sent in proposals, which stated that they would “guarantee the bridge to bear a rolling load of one ton to a lineal foot,” and added, “ the calculation is as follows for the strength of the bridge: ten thousand pounds allowed per square inch for tensile strain, and eight thousand pounds for compression strain.”</p> <p>These proposals were accepted, and on the 7th of May an agreement was entered into between the two companies, which provided that “ the American Iron Bridge Manufacturing Company, of the' first part, do hereby agree with the Monocacy Bridge Company, of the second part, to build and erect for them, over the river Schuylkill, in said county, near Monocacy Furnace, on abutments to be furnished by said parties of the second part, a wrought-iron bridge, according to the specifications of the parties of the second part, hereunto annexed. The said bridge to be of three spans, each one hundred feet long and eighteen feet wide in the clear. The floor beams or joists to be of white oak, and fourteen inches wide by four inches thick, and the flooring to be of white oak plank three inches thick; and the structure to be built and erected in a good, workmanlike manner, and of good materials, and is to be completed and ready for use on or before the 1st day of November 1870, in accordance with the annexed specifications.</p> <p>“And the said parties of the second part do hereby promise and agree for themselves and their successors in office, that in consideration of the covenants and agreements above set forth, they will furnish all necessary abutments and masonry for said bridge on or before the 7th day of September 1870, and will pay or cause to be paid to said parties of the first part, or their assigns, for said bridge, the sum of $7800, in the following manner: One-half when the bridge is put on walls, and the remaining one-half within sixty days thereafter.”</p> <p>The only specification annexed was a printed copy of the advertisement for proposals which was pasted on the back of the agreement.</p> <p>Of the contract price $3754.96 were paid by defendants, and plaintiffs brought this suit for the balance.</p> <p>On the trial before Yan Reed, A. L. J., defendants offered in evidence the written proposal dated May 4th 1870, of the plaintiffs to the defendants, for the construction of the bridge as part of the transaction, and as explaining the reference in the specification which required “ proposals to specify the greatest strain per square inch in pounds to which the metal will be subjected in sustaining the weight required,” and supplying the deficiency in the specification ; to be followed by evidence that before the defendants awarded the contract to plaintiffs, their president appeared before the defendants’ board and explained his proposal, and said the bridge should be built of the strength specified, “ will guarantee it to bear a rolling load of one ton to the lineal foot. The calculation is as follows for the strength of the bridge: 10,000 pounds allowed per square inch for tensile strain, and 8000 pounds for compression strain.” And that in consideration of these promises and representations the contract was awarded to plaintiffs, and the agreement entered into.</p> <p>Upon objection, the court rejected this evidence, which was the first assignment.</p> <p>Defendants offered letter dated December 14th 1870, from James McCarty to J. 0. Wright, president Monocacy Bridge Company, authorizing Moseley to consult with defendants’ engineer and settle all matters about the bridge, and saying whatever agreed to by him will be satisfactory; to be followed by telegrams, James McCarty to Joseph 0. Wright, naming time to meet General Moseley— the first dated December 14th 1870, and the second December 16th 1870; to be followed by proof that Moseley did meet the defendants’ board and engineer, and that he then admitted that the bridge was not of the strength required by contract, and that they never intended to build a bridge of the. strength specified in contract, and that he himself owned the majority of the plaintiffs’ stock.</p> <p>The rejection of this evidence constituted the second assignment.</p> <p>There being proof that General Moseley was the engineer of the plaintiffs and the patentee of the bridge; that the bridge in controversy was planned and designed by him, and under his direction, the defendant offered a letter dated the 14th December 1870, from the president of plaintiffs to J. C. Wright, president of the defendants, constituting Moseley their agent “to consult with defendants’ engineer and settle all matters about the bridge,” and expressly stipulating that whatever should be agreed to by him “should be satisfactory,” to be followed by evidence of the representations, declarations and admissions of Moseley respecting the subject-matter, viz., the bridge, made at the time he met the defendants, under the authority contained in the letter, and whilst he was transacting the business of the plaintiffs, entrusted to him by the plaintiffs.</p> <p>The rejection of this evidence was the third assignment.</p> <p>The defendants proposed to ask Mr. Wright, its former president, “ wherein, if at all, does the bridge as built by plaintiffs differ from the bridge required by contract ? What, if anything, is the difference in cost and value of the bridge erected and the bridge required by contract?” And to ask Mr. Lorenz, the plaintiffs’ expert, “If one were required to calculate the strength of a bridge which was to bear the weight specified for this bridge, and the builder had made it optional with the other party to take either lattice bars or suspension rods, would you calculate the strength of lattice bars to ascertain its practical strength ? Would not this bridge be subjected to a compression strain of more than 8000 pounds, and a tensile strain of more than 10,000-pounds, in carrying a moving load of one tonto each lineal foot?”</p> <p>All of which proposals were rejected and constituted the fourth, fifth, sixth and seventh assignments of error, respectively.</p> <p>The defendants submitted the following points, with which are given the answers of the court thereto :—</p> <p>1. This is an action of covenant. The declaration avers complete performance ; therefore if the jury believe that the bridge was not constructed eighteen feet wide, and completed by the 1st of November 1870, as stipulated in the contract, there can be no recovery in this form of action.</p> <p>Answer. “ In the affirmative, with this qualification: that if the jury believe that the plaintiffs were deterred from making the bridge of the required width, and from completing it by the 1st of November 1870, by the defendants, or that these two conditions were waived by the defendants, then these two circumstances' would not prevent the plaintiffs from recovering.”</p> <p>2. That as the plaintiffs admit and contend that the width of the bridge was changed with the consent of defendants, the whole contract became parol, .on the well-known principle “ that any alteration of a specialty by parol makes the whole contract parol, and covenant cannot be maintained upon it;” the verdict must be for defendants.</p> <p>Answer. “ If the jury find that plaintiffs were deterred or prevented from making the bridge of the required breadth, by the interference of the defendants, or that the defendants waived their right to have it just eighteen feet wide, then the contract has not become a parol contract, and covenant can be maintained.”</p> <p>3. That if the jury believe the bridge was not built of the width, nor of the strength, nor within the time stipulated in contract, there can be no recovery.</p> <p>Answer. “ This point is answered in the affirmative, with the limitation as to width and time of completion, as contained in the answer to the first and second points.”</p> <p>4. That time was of the essence of this contract; and the plaintiffs cannot recover unless the bridge was finished on or before the 1st of November 1870 ; and even if time was waived, there is no averment in the declaration to explain it, and there can be no recovery.</p> <p>Answer. “If the jury find as in the answer to the first point, then no averment in the declaration was necessary, and this would not prevent a recovery.”</p> <p>5. That as the plaintiffs have only shown part performance of the contract, there can be no recovery in this action, and the verdict must be for defendants.</p> <p>Answer. “ This point is answered in the affirmative, excepting in so far as the plaintiffs were prevented by the defendants, or that strict performance was waived by defendants, if they find that fact, or the deviations from the contract were of a trifling nature.”</p> <p>These answers of the court constituted respectively the eighth, ninth, tenth, eleventh and twelfth assignments of error.</p> <p>In their charge to the jury the court said: “In order to entitle the plaintiffs to a verdict at all in this action, they must have satisfied you that they have substantially performed tbeir part of the contract; without this they cannot recover, and your verdict should be for the defendants; but if you shall find that they have substantially fulfilled it, then your verdict should be in their favor for the balance due them upon the contract price, with interest to this time.”</p> <p>This portion of the charge was the thirteenth assignment.</p> <p>The verdict was for the plaintiffs for $5101.45, and the defendants took this writ, and alleged that the court erred as indicated in the foregoing assignments.</p>

<p>1. In a judgment note containing a waiver of the §300 exemption law, the waiver stands upon no higher plane than the rest of the note.</p> <p>2. One who has signed such a note can defend an action on it only on the ground that his signature to it had been obtained by fraud or through some mistake.</p> <p>3. B. gave A. his judgment note with a waiver of all exemption from execution, in payment of a pre-existing debt; in an action on the note, at the trial of which B. testified that he did not know, when he signed the note, that it contained such a waiver, the court charged that B. could not have been held to have waived the exemption, unless knowledge of the waiver was brought home to him at the time he signed the note, and that the plaintiff must prove such knowledge by stronger proof than all opposing proof on the defendant’s part: Eeld, to be error, and that B. could only defend on the ground that his signature to the note was obtained by fraud or through mistake.</p>

<p>Error to the Court of Common Pleas of Berks county: Of January Term 1877, No. 158.</p> <p>Scire facias on a mechanic’s lien filed by Prutzman for repairs and alterations done to a car-house and other buildings belonging to Bushong and Craig ; the latter were named in the lien as owners or reputed owners at the time the work was done. At the trial before Sassaman, A. L. J., the plaintiff testified that he contracted for the work with Bushong and Craig personally; that although he knew at the time that they were officers of the Berks County Railroad Company, nothing was said about doing the work on account of that company, but, on the contrary, they told him that they were getting the buildings ready for the Wilmington and Reading Railroad Company; that when the work was begun the “ building was a mere shed, open all around, and no tracks were laid through it;” that while he was at work, tracks were laid in the car-house, and that there were no locomotives there at that time. One Sands, a witness for the plaintiff, then testified that there were no tracks in the building when he -was working there with Prutzman, nor any signs of a turn-table when they first commenced work on the roof; that while they were at work the car-house was being fitted up for a round-house to store engines and cars in; and that a switch had been made and tracks were being laid at the time.</p> <p>The defendants moved for a nonsuit on the ground that “ the property was used by, and in the possession of, a railroad corporation, and that at the time the work was done, the property was not in the possession of the defendants.” The court ordered a nonsuit, which it afterwards refused to take off. The plaintiff then brought this writ of error, assigning for error the refusal to take off the nonsuit.</p>