Volume 84 — Pennsylvania State Reports

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of July Term 1876, No. 139.</p> <p>Debt on a replevin bond brought by Peter Fritz, assignee, against Joseph R. Sands and others.</p> <p>Fritz seized a stock of goods in the marble yard of Sands, one of the defendants, under a distress for rent. Sands- issued a replevin and gave bond conditioned for the return of the property in the event of the failure of his suit. Fritz obtained judgment and brought this action against Sands and his sureties on the bond. Sands filed an affidavit of defence which set forth “ that Joseph R. Sands, one of the defendants named in the warrant of distress replevied the property distrained upon, to wit(here followed a list of the articles); “that deponent, with one Edward Pepper, became the sureties in the replevin bond, upon which bond this suit is brought; that one of the conditions of said bond is that if the property so replevied should not be delivered up, if the plaintiff in said replevin suit did not prosecute his suit with effect, then, that said sureties should be responsible for the amount of the rent due at the time ; that the plaintiff (in said replevin) did not prosecute his said suit with effect, and after judgment had been entered in said suit in favor of the above-named plaintiff Eritz, deponent, acting under advice, sent for said Joseph E. Sass, bailiff of said landlord, and delivered up to him the possession of the said marble yard. That at the time of the said delivery, there was found by said bailiff upon said premises the following articles, to wit(here followed a list, including the greater number of the articles in the foregoing list, but containing others not comprised therein), “ as appears by the appraisement made by said bailiff, and said goods and chattels were appraised at the sum of $451. Deponent is informed and believes, and expects to be able to prove, that the property so delivered up to the said Joseph E. Sass, bailiff, was of more value than that originally distrained upon ; that most of the articles dis-trained upon were included in that delivery, and that upon some of them, additional work had been expended between the time of the original distraint, and the delivery up by deponent as aforesaid, and that a number of articles which were not upon the premises when the original distraint Avas made Avere there at the time of the delivery aforesaid, and were included in said delivery and AA’ere sold by said bailiff for the said rent. Deponent is advised and believes, and expects to be able to prove, that, on or about the 4th day of February last, said bailiff sold a large number of the articles so distrained upon, under the said landlord’s warrant, for the sum of $216.92, and that said plaintiff removed from the said place, and now has either in his actual possession or under his control, quite a number of articles which he claimed to be his individual property, or Avhich were sold and the buyers failed to come and pay for, which were included in said distraint and delivery.”</p> <p>The court entered judgment for want of a sufficient affidavit of defence which Avas the error assigned by the defendants, who took this writ.</p>

<p>Error to the Oyer and Terminer of Philadelphia county: Of January Term 1877, No. 249.</p> <p>Indictment of Patrick Quigley for the murder of his wife Catharine Quigley.</p> <p>The facts of the case are sufficiently stated in the opinion of the court.</p> <p>The only questions passed upon by this court were first, whether the case presented a clear one of murder in the first degree, and second, whether a juror could be challenged for cause by the prisoner, the cause assigned being that the juror was named in the return to the venire as “William S. Thompson, whittier, No. 1511 Thompson street, Twenty-ninth Ward.”</p> <p>The juror being examined on his voire dire, testified that he resided and had resided for twenty years at 1511 Thompson street; that he was doing no business at the present time, but that he was a “ victualler,” and that he knew of no such business as “ whittier.” The court overruled the challenge on the ground that the Christian and surname of the juror, with the number of his house, and the name of the street and ward, being accurately given, there was a sufficient description to enable the defendant to learn who was the person to be summoned as a juror.</p> <p>The jury found a verdict of murder in the first degree, and the prisoner was sentenced to be hanged. He then took this writ, assigning for error, inter alia, the overruling of the foregoing challenge.</p>

9. This was an amicable action brought by James Gilkyson, Esq., against the county of Bucks wherein a case was stated for the opinion of the court below, which was substantially… Held: the county was liable in such cases for costs immediately upon the conviction of the offender, without waiting for his discharge according to law: Commonwealth ex rel. Freytag v. The Commissioners of Philadelphia County, 6 Binn. 397; Commonwealth ex rel. Barnes v. Commissioners, 2 S. & R. 290.

<p>Error to the Court of Common Pleas of Berks county: Of January Term 1877, No. 95.</p> <p>Assumpsit by McKnight against Schrack to recover the subscription price of five shares of the Berks County Railroad Company.</p> <p>At the trial these facts appeared:—</p> <p>When the subscription- books of the company were opened, Schrack authorized McKnight, by a letter of attorney, “ to subscribe five shares of stock in the Berks County Railroad and to pay the sum of $25 as the first instalment” for him, and “ to vote said shares of stock, so subscribed, as fully and as effectually” as he, Schrack, “ could do if personally present,” &c. Before McKnight subscribed for the shares under this letter of attorney, Schrack told him that he wanted his stock on the subscription book in his own (Schrack's) name, and McKnight told Schrack he would attend to it and put the shares down in Schrack’s name. This evidence was corroborated by one Kissinger and was uneontradicted. Schrack gave McKnight $25 to pay the first instalment on the stock with.</p> <p>McKnight subscribed for a hundred and forty-nine shares in his own name; among these were included five shares for Schrack. He paid the first instalment upon the five shares with the $25, and the succeeding instalments with his own money. After the stock was full paid he obtained a certificate for a hundred and forty-nine shares in his own name. Three days afterwards he transferred five of these shares to Schrack’s name and tendered the certificate to him. Upon Schrack’s refusal to accept it, he brought suit against him fo.r the amount he -had paid on the stock.</p> <p>There was no evidence of any direct act of either repudiation or ratification of McKnight’s action by Schrack. It appeared that notice of calls was regularly sent to Schrack from time to time by the company.</p> <p>One Fisher testified that when he called on Schrack for the company to collect one of the instalments due, Schrack refused to pay it until he got a certificate of stock in his own name. Schrack, however, gave a different version of the interview, testifying substantially that he had refused to pay for the stock, as the subscription was not in his name.</p> <p>The defendant offered the following points, among others: — -</p> <p>I. That the letter of attorney from defendant to plaintiff limited plaintiff’s agency simply to the act of subscription and the payment of the first instalment of $25.</p> <p>6. That if the jury believe the evidence of John Kissinger and defendant with reference to notice by defendant to plaintiff that he wanted the stock in his own name, he was bound to subscribe for it in the name of the defendant, and anything beyond that is a violation of the letter of attorney, and not binding on defendant Avithout positive proof of subsequent ratification.</p> <p>II. That the payment of said five shares of stock by plaintiff Avas a voluntary, unauthorized payment, and therefore, even if the subscription made had been binding on defendant, plaintiff cannot recover.</p> <p>The court, Hagenman, P. J., answered them as folloAvs: “ * * * if the jury find that the subscription, being in, the name of plaintiff, Avas so made by him in good faith and for the mere purpose of carrying out the trust, and although defendant told jDlaintiff-that he wanted the stock in his OAvn name, it was not such a violation of the letter of attorney as will excuse him from liability, even without proof of subsequent ratification. And all payments of future instalments which Avere made by plaintiff, if made to secure the stock so subscribed for the benefit of the defendant, the plaintiff is entitled to recover such moneys as he has paid, provided he has tendered to defendant a. certificate for the said five shares of stock and further charged as folloAvs : “ whether the subscription Avas in his OAvn name or that of Schrack, if McKnight acted in good faith and it Avas made as a mere matter of form to carry out the trust, it is binding on defendant. When Schrack discovered that his stock Avas in McKnight’s name, if he was not satisfied with the manner of McKnight’s subscription, he should have demanded a cancellation of letter of attorney, or transfer of the shares of stock in his own name.”</p> <p>There was a verdict for the plaintiff for the full amount in suit. After judgment, the defendant took a writ of error. The substantial errors assigned all raised the question of the plaintiff’s agency.</p>

143. This was an attachment execution issued by Samuel L. Rhoads to the use of John Wilhelm against Reuben Blatt, wherein Aaron Blatt was summoned as garnishee. The garnishee pleaded nulla bona, with leave, &c., and issue. The case was this:— On the 21st- of January 1871, Rhoads obtained a judgment against Reuben Blatt, which, on the 16th of June 1874, was marked to the use of Wilhelm.

<p>Error to the Court of Common Pleas of Berks county: Of January Term 1877, No. 170.</p> <p>Trespass for mesne profits by Daniel Miller against Benneville M. Henry and Mary Henry.</p> <p>On the 28th of April 1871, Miller brought an action of ejectment against the defendants to recover possession of a property on North Sixth street in the city of Reading. A verdict was obtained on the 4th of December 1873, and possession given on the 1st of April 1874.</p> <p>Miller then brought this action to recover the mesne profits or rental of the property from April 1st 1871 to April 1st 1874.</p> <p>B. M. Henry died on the 4th of June 1875, and his death having been suggested on the record, the action proceeded against Mary Henry alone.</p> <p>At the trial, before Hagenman, P. J., the court allowed the defendant, as a witness in her own behalf, to prove that the possession of the property in question was not in her, but in her son, with whom she had lived as a housekeeper, and that she did not defend in the ejectment suit. The plaintiff objected to this evidence, because it contradicted the record in the ejectment, but the court overruled the objection.</p> <p>In their charge, the court, after some observations upon the case of Sopp v. Winpenny, 18 P. F. Smith 80, continued:—</p> <p>“ [It follows that if one who had no possession Avould be included in an ejectment with others, and there was service of the writ upon him, in an action for mesne'profits he may show that he never was in or had possession. So, too, if a female servant or daughter of the defendant would be included in the writ, although they were living upon the premises, but in the family of the defendant, they may show the servitude and relationship to the defendant, and no principle of law would hold them liable for mesne profits. Likewise, where a son would invite his aged and widowed mother to make her home with him, and while she was thus in his family would be included in an ejectment with her son, no one would pretend to hold that she would be liable in an action of trespass for profits.]</p> <p>“ The plaintiff’s present action is not one for costs incurred in the action of ejectment, but for damages for having had the possession withheld from him, and therefore those only who have been guilty of withholding that possession are liable. The action was originally against Benneville M. Henry and Mary Henry, and if Benneville M. Henry was still alive he could not make a defence, for he held possession until he was ousted under the habere. [But, while Benneville M. Henry could have made- no defence, there is no principle of law that would preclude Mary Henry from making one, if she had sufficient grounds to defend. The fact that Benneville M. Henry died since the bringing of this action does not lessen or take away any rights which she previously had.]</p> <p>“ Joseph Henry, the husband of Mary and father of Benneville Henry, died in possession of this property, and at the time of his death, Benneville Henry, with his wife, - was living in the same house. It is alleged by the defendant that Benneville Henry, at his father’s death, claimed the ownership of the property, as the son and heir-at-law, and assumed and exercised exclusive possession of it; She alleges further, that she made no claim to the possession of the property, but lived with her son Benneville all the time and in his family. [If the jury find that she was in possession alone, or jointly with her son Benneville, then the verdict must be for the plaintiff. But if the jury find that she made no claim or pretence to possession, that she was simply an inmate in the family of her son, the verdict must be for the defendant.]”</p> <p>The verdict was for the defendant, and the plaintiff took this writ, assigning for error 1st and 2d (but irregularly, the assignments not containing the substance of the exceptions, as required by the rules of the Supreme Court), the admission of the evidence of Mrs. Henry, and 3d, the portions of the charge in brackets.</p>

<p>Error to the Court of Common Pleas of Berks county: Of January Term 1877, No. 130.</p> <p>This was an amicable action by Philip Shingle, against the directors of the poor of Berks county, wherein a case was stated which will be found, in effect, in the opinion of this court.</p>

<p>Where a mortgage creditor who had a lien upon one property of a debtor was subrogated to the rights of a prior judgment creditor, whose lien was upon two properties of the same debtor, the mortgage creditor could not levy his debt-out of one of these properties conveyed by the debtor to a bona fide purchaser, for value, without notice of the lien of the judgment.</p>

177. Debt by Elizabeth Laury against the Mutual Protection Life Insurance Company, upon a policy of insurance on the life of her husband, Lewis Laury, issued by the defendant company, in her favor; plea, nil debet. The only question decided was whether the company had waived the forfeiture of the policy, which had taken place from Laury’s failure to pay the assessments on it according to its terms.

<p>Error to the Common Pleas of Lehigh county: Of January Term 1876, No. 201.</p> <p>Assumpsit by Martin A. Seipel against the International Life Insurance and Trust Company of New Jersey.</p> <p>The case was thus. In November 1871, the defendant company, which was incorporated April 22d 1868 by the legislature of New Jersey, established an agency in Allentown, Pennsylvania. The plaintiff sold the defendant a mortgage on a property in New Jersey for $7000, and received its check for the purchase-money. At the same time, November 25th 1871, Seipel gave the company $2500 and entered into the following agreement:—</p> <p>“ The International Life Insurance and Trust Company of Jersey City, hereby acknowledge that they have this day had and received of and from Martin A. Seipel, of the city of Allentown, county of Lehigh and state of Pennsylvania, the sum of $2500, being the first premiums upon acceptable life risks, Which, for certain good causes and considerations, the said Martin A. Seipel hereby agrees and covenants to procure and place and insure in the said company, within the period of two years from the date hereof. The said The International Life Insurance and Trust Company, hereby agrees to furnish policies for the said life risks, the first premiums amounting in the aggregate to $2500, whenever the said Seipel shall provide and place the said acceptable risks, within the aforesaid period of two years from the'date hereof. Witness our hands this 25th day of November A. d. 1871.”</p> <p>In pursuance of this agreement the plaintiff proceeded and placed in the company life risks, the first premiums of which amounted to $466.98. While so engaged and within a year after the execution of the above agreement, the company quitted the life insurance business and sold out and transferred its entire insurance business to the United States Life Insurance Company of New York, discontinued its agencies, notified its policy holders to return their policies and accept new ones in the company to which the transfer had been made, and gave notice to the plaintiff and the general public that after October 15th 1872, its management would be “ exclusively ” directed to the trust and banking business.</p> <p>Plaintiff thereupon treated the contract as rescinded and brought this suit to recover the balance of his money in the hands of defendant. Under the Act of May 14th 1874 the case was submitted to a referee, before whom it was contended, on behalf of the plaintiff, that by the above-mentioned acts the company had violated the contract and that therefore plaintiff had a right to rescind it and recover the balance due him.</p> <p>The defence was that the company had reserved the right to fill contracts made prior to the date of the transfer, and that consequently the plaintiff could not recover.</p> <p>The referee was of opinion that although these acts and default of the defendant placed the plaintiff in a worse’ position, this was not sufficient; that performance must be rendered entirely impossible, and that defendant had provided against this impossibility by reserving the right to issue policies of its own to fill contracts made prior to the transfer; and further, that the plaintiff could not rescind without tendering back the purchase-money of the mortgage, as the contract so far as the sale of the mortgage and the payment of the money thereon was executed, and the balance of the contract was executory, and the plaintiff could not avail himself of the first part and be entitled to rescind the latter. He therefore found for the defendant.</p> <p>This finding of the referee was, inter alia, the error assigned by the plaintiff, who brought this writ.</p>

171. Tobias Clauser died on February 25th 1868. By his Avill he gave to two of his nephews, Mordecai F. and George W. Huy, and to his niece, Catharine Huy (afterwards Fisher), $1000 each. He gave his homestead to his wife, and after her death to his nepherv, Tobias Clauser, and made the latter his residuary legatee. He appointed his brother, Daniel Clauser, and Jesse G. HaAvlev, his executors. Separate accounts Avere filed by the executors, apparently Avithout objection.

Of January Term 1877, No. 159. This was a case stated, the terms of which, as set forth in the opinion of the court below, were substantially as follows:— “ The Wilkesbarre City Hospital is a charitable institution, organized and incorporated for the reception and treatment of sick and injured citizens of Pennsylvania, without regard to creed, sex, or race.

<p>G., in consideration of the transfer to him of about $1300, by his mother, T., gave her a bond (with warrant of attorney) in $2600, conditioned upon his supporting and clothing her, and paying her $25 a year during her life. Judgment was entered on this bond. Afterwards II. and S. successively obtained judgments against G. Under the judgment, of S. real estate of G. was sold ty the sheriff. In the distribution of the fund raised by this sale $1394.63 .was directed to be “ impounded in court for the benefit of T., who had then become a lunatic, to be used by her committee for her support, the balance at her death to go to the person legally entitled thereto.” No exception was taken to this award by H. or S. That sum was" paid to the committee and the residue of the fund to II. on his judgment. After T. died the committee filed a report, upon which the court awarded the funds in his hands, first, to pay an unpaid bill for T.’s support, and secondly, to II. and S. successively, on their’respective judgments. Held, that the award to H. and S. was error, and that the residue should be paid to T.’s personal representatives.</p>

<p>1. In an indictment for forging the election returns of one township the defendant cannot avail himself of a plea of autrefois acquit and set forth the record of an acquittal on an indictment charging a similar offence in regard to the returns of an election held in another township.</p> <p>2. If the record of the former trial shows that the evidence necessary to support a conviction on the indictment on trial would have been insufficient to procure a legal conviction on the former, the plea of autrefois acquit cannot be sustained.</p> <p>3. As a general rule a demurrer admits the facts pleaded and refers the question of their legal sufficiency to the court, but to give it this effect the facts must be well pleaded.</p>

6. Ejectment by Louisa C. Leeds and others against Edmund Lockwood and Hiram Luther. The action was originally brought on the 10th of September 1861, and the writ Avas served on the 30th of the same month upon Edmund LocltAvood and Myron Luther.

<p>1. The recitals in the deed of county commissioners made in pursuance of a sale of land for taxes, prima facie raise a legal presumption that the commissioners did their duty and made the sale according to law.</p> <p>2. Jenks «.Wright, 11 P. P. Smith 410; Hoffman v. Bell, 11 Id. 444; Hess «. Herrington, 23 Id. 438, distinguished.</p>

<p>Error to the Oyer and Terminer of Luzerne county: Of January Term 1876, No. 167.</p> <p>Indictment of Andrew Lanahan, the first count of which charged him with the murder of John Reilly, and the second with manslaughter.</p> <p>Plea “Not guilty.”</p> <p>The facts are sufficiently stated in the opinion of this court.</p> <p>The chief contention in the court below was to the degree of the guilt, the defence averring that voluntary manslaughter, or at most murder of the second degree, was the grade of the offence.</p> <p>The following w7ere among the points' submitted, to which are appended the answers of the court, Harding, P. J., and Handley, A. L. J.</p> <p>1. That the presumption of law arising from the use of a deadly weapon, where death results, rises no higher than murder of the second degree, and that wilfulness, deliberation and premeditation, which are essential elements of the crime of murder in the first degree, must be proved by the Commonwealth to have had an existence in the mind of the prisoner, by testimony so clear and conclusive that no reasonable doubt thereof remains in the mind of the jury.</p> <p>Answer. “ We have already said to you in the general charge, that in order to convict of murder of the first degree, you must be satisfied beyond a reasonable doubt, that the prisoner slew Captain John Reilly, and that that slaying was wilful, deliberate and premeditated.”</p> <p>2. That no positive evidence has been produced by the Commonwealth in this case to show that the killing was premeditated and deliberate, and that the circumstances under which the killing took place may be reconciled with the theory of the absence of such intent.</p> <p>Answer. “ That is a question of fact for the jury under the evidence in the case.”</p> <p>3. That if the jury can reconcile'the circumstances under which the killing took place with the prisoner’s innocence of a deliberate and premeditated intent to take life, they are bound to do so, and in that event cannot find him guilty of murder in the first degree.</p> <p>Answer. “We have already affirmed that proposition in the general charge. We affirm it again.”</p> <p>The portion of the general charge referred to was as follows:—</p> <p>“ The defence have made answer to the charge contained in this indictment. . They concede, as we have said before, the killing under the circumstances as represented by the witnesses on the part of the Commonwealth, but they deny the degree of murder charged. Their theory is, that Captain Reilly and the prisoner, while coming down the road that night, within five hundred feet of the point from which they started, got into an altercation, and that Captain John Reilly then first shot Andrew Lanahan, whereupon the latter instantly fired the fatal bullet into the body of the' former. In support of this theory they produce the defendant before you, and exhibit a wound which they allege was inflicted upon his person that night. (A ball was extracted from the prisoner’s body in the court house by the prison physician during the progress of the trial. Rep.)</p> <p>“ If that theory, supported by the evidence, raises in your minds a reasonable doubt as to whether this killing was wilful, deliberate and premeditated, that doubt belongs to the prisoner, and you should acquit him. It is for you to say whether this was so or not, but it is not to be assumed, not to be gathered elsewhere than from the record of the testimony.”</p> <p>4. That if the jury believe from all the evidence that the prisoner was so much under -the influence of liquor, at the time the offence was committed, as to be unable to deliberate upon and premeditate the killing, and to form consciously a specific intent to take life, or if the testimony has raised a reasonable doubt as to his ability to deliberate and premeditate, he cannot be convicted of murder in the first degree.</p> <p>Answer. “We have already said this, substantially, to you in the general charge; we have explained to you at. length what are mitigating circumstances, and particularly to what extent drunkenness must be shown to exist. With what we have thus said to you in the general charge, we affirm this proposition.”</p> <p>The portion of the charge referred to was as follows :—</p> <p>“ The defence, gentlemen, have further answered the charge by showing that these parties, the deceased and the prisoner, were drunk on the day in question. If you are satisfied from the testimony that Andrew Lanahan was besotted on the occasion1 to such an extent that he knew not what he was about, and .that he perpetrated this deed while in that state or condition, then the law in its mercy reduces the offence from murder of the first degree to murder in the second degree. But drunkenness should never be regarded as an excuse for crime.</p> <p>“ The man who deliberates and forms the intent to commit a murder, and then fires his courage by drinking this damning fluid, only heightens, increases the measure of his guilt. Drunkenness is no excuse for crime, particularly if that crime be previously determined upon, and intoxication is resorted to simply for the purpose of spurring on the courage. That drunkenness which besots, which renders a man unable to deliberate, reduces the crime which might be murder of the first degree to murder of the second degree.”</p> <p>The prisoner was convicted of murder in the first degree and sentenced to be hung.</p> <p>He then took this writ and his assignments of error were, among others, the above refusals of his points and the portions of the charge noted.</p>

<p>Appeal from the Court of Common Pleas of Wyoming county: Of January Term, 1875, No. 107.</p> <p>This appeal was from the decree of the court confirming the report of the auditor appointed to distribute the proceeds of the sheriff’s sale of the real estate of Cyrus Stark.</p> <p>On the 29th of March 1872, Stark bought of Reed the stock and fixtures of a hotel and gave him therefor three judgment notes, amounting to $4250. Piatt guarantied the payment of these notes, and to indemnify himself, took from Stark a judgment note for $4250, and at the same time agreed in writing that when the Stark notes to Reed were paid, the judgment to Piatt should be cancelled upon the payment of the costs by Stark.</p> <p>Upon the same day that Stark gave the notes to Reed he gave to Wall a judgment note for.$3600, to secure the payment of the rent of the hotel for three years. All these judgments were entered of record upon the same day. Subsequently the real estate of Stark was sold under a prior judgment and the balance of the proceeds, $1456.16, was the fund for distribution in this case. All the other real and personal estate of Stark had been previously sold and he was insolvent. Out of the proceeds of the sale of Stark’s personal property, two of the notes to Reed had been paid, leaving a third of $945.97, which had been assigned to Bunnell & Co., and the Wall judgment had been reduced by payments to $2111.30.</p> <p>Before the auditor appointed to distribute the fund it was claimed on behalf of the Piatt judgment that it was entitled to a pro rata distribution upon the whole amount of the judgment, $4250, and the auditor held that said judgment was a valid subsisting lien for its whole amount, to be released only by the payment by Stark of the whole of the three notes guarantied by Piatt, but as the Piatt judgment was given and held only for the purpose of indemnity, and as the pro rata dividend to it; with the dividend applicable to the judgment assigned to Bunnell & Co., would, taken together, more than satisfy the unpaid balance on the latter judgment and the costs on the Piatt judgment, the auditor, therefore, distributed the fund first, to the full satisfaction of the Bunnell & Co. judgment, second, to the payment of the costs on the Piatt judgment, and the balance to the judgment of Wall. *</p> <p>To this report-Wall excepted, on the ground that no part of the fund should have been awarded to the Piatt judgment, and if any was awarded it should have only been a pro rata share upon the $945.97, .due on the notes guarantied by Piatt.</p> <p>The court overruled the exceptions and confirmed the report, and from this decree this appeal was taken.</p>

<p>Error to the Court of Common Pleas of Wyoming county: Of July Term 1876, No. 31.</p> <p>This was an amicable action of trespass on the case brought by H. W. Bardwell against the county of Wyoming, the action being founded, as appeared by a statement filed by the plaintiff, on certain orders drawn by the “ Military Board of Wyoming county,” on the treasurer of said county. There were seventy of these orders, all of which were dated in 1871 and the aggregate of which amounted to $444. In his statement the plaintiff averred “ that he had made demand on the county commissioners and county treasurer for the payment of each of said orders and that the same had been refused.”</p> <p>To this statement the defendant demurred, assigning as cause therefor, “ that the treasurer of Wyoming county had not nor is he bound to have any funds out of which to pay said orders, the Act providing the ways and means for payment having been repealed; therefore the said defendant is not bound by law to provide for the payment of the said orders nor any part of them.”</p> <p>The act under which the orders were drawn is the Act of 7th April 1870, Pamph. L. 62 (the essential portions of which, as applicable to this case, being found in the opinion, of this court), and the alleged repealing clause, the 9th section of the Act of 15th April 1873, Pamph. L. 74."</p> <p>Plaintiff joined in the demurrer, and the court, Ingham, P. J., entered judgment for the plaintiff, and in an opinion said: “ The Act of April 15th 1873 provides that ‘ any acts or parts of acts which impose a per capita tax upon persons liable to military duty be and the same are hereby repealed.’ This act does not purport to operate retrospectively, and therefore reaches not back to pre-existing claims. The orders declared upon were all drawn prior to the repeal of the per capita tax. The law imposing this tax had been in force three years ; it was the duty of the county officers to collect it. The presumption is that public officers do their duty, and. it must therefore be presumed that it was collected. The demurrer does not aver that no funds were collected to discharge these obligations, nor that funds so collected had been legally applied to some purpose authorized by the act. The averment is, that ‘the treasurer hath not nor is he bound to have any funds out of which to pay the said orders.’ The answer that the treasurer ‘ hath not’ funds might be made if the commissioners had applied the funds derived from the military tax to county purposes, and does not weaken the presumption that he has had it. The answer that the treasurer is not bound to have any funds out of which to pay said orders, because the act providing the ways and means for the payment has been repealed, would be sufficient if the demand was for obligations incurred after the repeal of the law, but such repeal cannot release the county from obligations previously incurred.”</p>

<p>1. Where a county constitutes a, separate judicial district and has two or more judges learned in the law, two courts of Oyer and Terminer may be held therein at the same time, under the provisions of the Acts of 18th March 1875 and 7th of April 1876. _</p> <p>2. In a homicide case, where the jury has been sworn on the last day of the term, the court may adjourn from day to day, and proceed with the trial of the case after the expiration of *the term; such continuance is within the sound discretion of the court.</p> <p>3. To show the motive for the crime, it is competent for the Commonwealth" to prove the existence of a secret criminal organization, and to show that one division of such organization furnished men to commit murder in compensation for a like crime by members of another division.</p> <p>4. It is not error to instruct the jury that the degree of credit to be given by them to the evidence of an accomplice is exclusively within their province, if such instruction is accompanied by the advice that they should not convict upon such testimony without corroboration.</p> <p>5. It is competent for the Commonwealth to corroborate the testimony of an accomplice, as to occurrences subsequent to the crime, where they explain the relations, conduct and motive of the prisoners, although they do not connect them directly with the commission of the crime.</p> <p>6. This court must look at the real competency of the evidence and not at the order of its reception, and when it is found that the evidence is all finally competent, will not reverse because of the time or order of its introduction.</p>

<p>Certiorari to the Quarter Sessions of Susquehanna county: Of July Term 1876, No. 137.</p> <p>On the 12th of October 1874, certain inhabitants of Lathrop township presented a petition to the Quarter Sessions for a public road “to lead from Brooklyn and Lenox turnpike, near G. W. Reese’s store, to a laid-out road near Truman Bell’s.”</p> <p>Viewers were appointed whose report was confirmed nisi. A re-view was granted, but the report thereon was set aside for informality and a re-re-view granted. The re-re-viewers reported in favor of the road and upon the question of damages said: “ G. W. Reese .will sustain damage to the amount of $200, and that Susquehanna county shall pay one-half and the petitioners or patrons of said depot shall pay the other half.”</p> <p>On the 13th of January 1876 this report wras confirmed nisi, and on the 5th of June following, after argument, upon the exceptions and depositions, the court entered the following confirmation :—</p> <p>“ Confirmed finally on payment of one-half of the damages awarded to G. W. Reese by the petitioners, within ten days from date.”</p> <p>On the 19th of June an aflidavit was filed showing $100 tendered to Reese on the 13th of June 1876.</p> <p>Reese appealed, inter alia, assigning this confirmation for error.</p>

<p>Error to the Court of Common Pleas of Susquehanna county: Of January Term 1876, No. 122.</p> <p>John Q. Humphrey and Robert Bruce Ross are partners in the lumbering business. Humphrey gave W. S. Howell a note with confession of judgment, for a partnership debt, and signed the note with the firm name, Humphrey & Ross. Judgment was entered upon the note against both Humphrey & Ross, upon which an execution was issued and levied upon the partnership property of the firm. Ross came in with an affidavit denying that he executed said note, or authorized Humphrey to sign the firm name to the warrant to confess judgment, and asked to have the execution stayed as to him, and that the sheriff be enjoined from selling his interest in the partnership effects of Humphrey & Ross. The court stayed the writ as to Robert Bruce Ross, but declined to enjoin the sheriff from selling the entire partnership property. Ross being dissatisfied with this ruling, asked the court to allow him a writ of audita querela against Howell, which the court allowed, and directed a scire facias to issue, wherein Howell was required to show cause why the execution should not be so stayed or set aside that the interest of Ross should not be sold on the same.</p> <p>To this complaint and scire facias Howell filed a general demurrer. The plaintiff joined therein, and the court, Streeter, P. J., after argument, said, “ We hold, that for a partnership debt, the entire partnership effects may be sold on an execution issued upon a judgment against one of the partners; especially where the record shows the fact, that the judgment was confessed for a partnership debt. * * *</p> <p>“We are of the opinion that the defendant in this case should not be restrained from selling the whole interest in thé goods of the firm of Humphrey & Ross; and the demurrer must therefore be sustained.</p> <p>“ Judgment oú the demurrer for the defendant.”</p> <p>This action of the court was the error assigned.</p> <p>This case was originally argued in the Supreme Court on the 17th of March 1876, and a‘few days thereafter the court made an order for a re-argument, wherein counsel was requested to direct their attention to the discussion of the question as to what rights and interests of the non-assenting partner are affected by the voluntary confession of the assenting partner.</p>

<p>1. An order was made to re-view a road,' but the viewers took no action thereunder. The order was continued to the following session of the court, when other viewers were substituted, who proceeded to act under the original order, without the issuance of a new order. Held, that this proceeding was irregular, and this notwithstanding the continuance and substitution appeared of record.</p> <p>2. The original order gave the viewers authority to lay out but not to vacate a road. They proceeded to lay out and vacate. Held, that this action was erroneous and was not helped by the fact that the court amended the original order by inserting therein “with power to vacate,” and sent the same back to the viewers for their approval, and their approval was endorsed thereon.</p>

<p>One who signs a note or bond with a married woman, whether as principal or surety, is the only party bound, and his being a surety makes no difference in the liability.</p>

<p>1. The Act of 19th of January.1860, which directs that the supervisor of the township shall give to the lowest and best bidder the contract for making and repairing the roads therein, does not relieve the township of liability for an accident caused by the unsafe condition of its roads.</p> <p>2. Painter v. Pittsburgh, 10 Wright 213, distinguished, and Newton Township v. Davis, 27 P. F. Smith, followed.</p>

<p>In distributing the fund arising from a sheriff's sale cf real estate a creditor who had a judgment obtained upon a bond conditioned for the payment of “ all moneys borrowed from said creditor, or which may from time to time, be borrowed from the same, lawful money as aforesaid, at or upon the time when the same shall become due,” as evidence of the amount due on said judgment, produced before an auditor certain promissory notes which had been renewed from time to time, and a large portion of the consideration of which was usurious interest. Held, that as the record of the judgment did not show a lien for a specific sum, and resort must be had to other testimony to ascertain the sum secured thereby, a subsequent lien creditor had the right to object to the allowance of the usurious interest, and was entitled to have it deducted from the amount of the notes.</p>

<p>Testator's will contained this direction: “Pirstlgive and bequeath unto my son Edward and Peter and my daughter Catharine and Mary my daughter’s children Daniel John Elizabeth and Emma Mull they shal stand in equal shares that is to say Mary’s children shal have the share of their mother. Item, my son Daniel and Jarrett and my daughter Sarah and Louisa’s child Edward Hummel they shall have nothing of my estate they have more now than their shairs would come to. Last and Also I appoint my son Edward and John Zimmerman farmer as my executors of this my last will and testament and they shall have a right to sell the property and make it into money when they think fit to do so or when it will bring the most money.” Held, that this will carried all the real and personal estate of the'testator to those mentioned in the first clause, and that the word “ estate” belonged to the first clause of the will as well as the second, and that the word “ shares” in the first clause corresponds to the same word in the last clause, and both refer to the same estate.</p>

<p>1. There was no office provided for the jury commissioners, nor a place of safety for the custody of the jury wheel. The commissioners arranged for its custody by having it kept in the vault of the, county treasurer, 'upon condition that no one but a jury commissioner should enter the vault for the wheel; the sheriff kept the key of the wheel. Held, that the custody of the wheel was sufficient.</p> <p>2. It is not proper for the jury commissioners and sheriff to use one and the same seal, but each should have his own seal, so that he alone shall have its custody.</p> <p>3. A juror is competent who has formed an opinion from what he has read, but does not think the opinion is so fixed and determined that he would not be governed by the evidence, and who feels sure it would not prejudice the prisoner or give undue weight to the evidence against him.</p> <p>4. A juror testified on his voir dire that he had formed and expressed an opinion, and that it was fixed and determined from what he had read, but not such an opinion as would influence or control him in any degree as a juror; that it would not influence him to give an undue weight to evidence against the prisoner, and that he felt certain that he could divest his mind of all prejudice and be controlled by the evidence. Held, that he was competent, as it did not appear that his opinion Was formed upon the evidence to be given, or that he had any fixed belief of the guilt of the prisoner.</p>

<p>Error to the Court of Oyer and Terminer of Montgomery county: Of July Term 1876, No. 40.</p> <p>. Indictment of Blasius Pistorius for the murder of Isaac Jaquette.</p> <p>Blasius Pistorius, who had recently come from Germany, was living with his brother John, on a farm adjoining that of Jaquette, the deceased. A creek, called Stony creek, separated the two farms. A difficulty had arisen between John Pistorius and Jaquette about the cows of the latter, which, in coming down to the creek to water, sometimes strayed upon the ■ lands of Pistorius. This difficulty had occasioned considerable feeling between the two families. On the day of the homicide, the cows of Jaquette, in charge of a lad named Muloch, were driven as usual to the creek. While they were drinking the lad sat under a tree, but perceiving that the cows were wandering up the creek he started in pursuit, when the prisoner emerged from behind some bushes along the creek, and pointing a pistol and using some broken English, threatened to shoot. The boy then ran after Jaquette, who left the field where he was at work and started with the lad down to the creek. When they approached Blasius pointed the pistol at Jaquette, who picked up two stones, remarking, “ if you attempt to shoot me I’ll put you off that bank.” They were at this time on the opposite sides of the creek. Jaquette then walked to the other side of the creek, Blasius still keeping the pistol pointed at him. As he crossed the creek Jaquette made some remark like, “ Why can’t you leave my cows alone when I leave them out to water on my own ground ?” The prisoner still pointing the pistol at him, Jaquette said to the lad and a little girl who was nearby, “You see that; I will have him arrested.” Jaquette then’ threw down the stones and walked up the bank towards the prisoner, who at this time had the pistol down by his side. When he was about four feet from the prisoner the latter again raised the pistol. Jaquette approached closer and as he did threw up his arm to knock away the pistol from his face, but did not touch it. When the arm of Jaquette was raised the pistol was turned, presented at Jaquette’s body and fired, the prisoner having his hand on the trigger. Jaquette threw up his arms, exclaiming he was killed, and fell backwards into the creek. When requested to help carry Jaquette out of the sun the prisoner replied, “ No, let him lay there and die.”</p> <p>The only questions passed upon by this court, were those raised by the following points submitted by the prisoner, and the answers of the court thereto.</p> <p>8. If the jury find that the defendant fired the pistol when he was assaulted by the deceased, under apprehension of bodily harm, he cannot be convicted of murder in the first degree.</p> <p>Answer. “ This is true, unless the prisoner at the time he fired had a wilful, deliberate and premeditated intention to take the life of the deceased, and was not intended for defensive purposes.”</p> <p>4. If the defendant, although in no imminent peril when the deceased approached him, yet had a reasonable belief of bodily harm, founded upon the manner, gestures or appearance of the deceased, immediately before he. fired the pistol, he cannot be convicted of murder in the first degree.</p> <p>Answer. “ This is true, unless the prisoner fired with the wilful, deliberate and premeditated intent to take the life of the deceased, and not for the purpose of self-defence.”</p> <p>6. If the jury find that the deceased approached the defendant in a threatening manner, and the defendant had a reasonable belief of bodily harm, although mistaken, he cannot be convicted of murder in the first degree.</p> <p>Answer. “ This is true, if you believe the prisoner acted upon that apprehension; but it is not true, if you find, beyond all reasonable doubt, he fired with a wilful, deliberate and premeditated intent to take life.”</p> <p>The result of the trial was a verdict of murder in the first degree, and the prisoner was sentenced to death. This writ was then taken and the errors assigned, inter alia, were the foregoing answers to defendant’s points.</p>

<p>Error to the Court of Common Pleas of Montgomery county: Of January Term 1877, No. 160.</p> <p>This was an amicable action by O. W. Wright, collector of taxes for the county of Montgomery and also collector for the borough of Norristown, and Charles Slingluff, collector of school taxes for the school district of Norristown, against R. B. Wigton and William H. Johns, assignees and trustees for the benefit of creditors of Schall & Co.</p> <p>The following case was stated for the opinion of the court:—</p> <p>1. That on the 31st day of December 1874 said Schall & Co. executed and delivered a voluntary deed of assignment of all their partnership property, real and personal, in trust for the benefit of their creditors, and that the said defendants are the assignees or trustees of said assigned estate.</p> <p>2. That the said C. W. Wright, on the 18th day of December 1875, by virtue of a lawful warrant issued for that purpose against the said Schall & Co., made a distress and levy upon the said assigned personal property in the borough, as follows :—</p> <p>For said borough tax for the year 1874, $320.54</p> <p>And for the same tax for the year 1875, 320.54</p> <p>And also, for the said county tax for the year 1875, 161.14</p> <p>$802.22</p> <p>3. That the said Charles Slingluff, at the same time and in like manner, by virtue of a lawful warrant issued for that purpose, against the said Schall & Co., made a distress and levy upon the said assigned personal property in said borough, for said school district of Norristown, school tax for the year 1875-6, for the sum of $286.20.</p> <p>4. That the said tax for the year 1874 was assessed on the said assigned real estate of said Schall & Co., prior to the date of the said deed of assignment, and all the rest of the said taxes were assessed against the said Schall & Co., since the date of said deed of assignment.</p> <p>If the court shall be of the opinion that the personal property distrained and levied upon as aforesaid is liable for the payment of said taxes, or any part thereof, then judgment to be entered accordingly in favor of the respective plaintiffs for such amount as the court shall be of opinion each is entitled to.</p> <p>But if the court should be of opinion to the contrary then judgment to be entered in favor of the defendants as between both or either of the said plaintiffs.</p> <p>Either party to have the right to sue out a writ of error to the Supreme Court.</p> <p>The court, Ross, P. J., entered judgment for’ the defendants, which was the error assigned.</p>

<p>A civil engineer is not a “laborer” or “workman” within the meaning ol'the resolution of 21st January 1843, and its supplement, the Act of 4th April 1862, and is not entitled to the lien provided thereby upon the property of a railroad, for the value of his services rendered in its construction.</p>

<p>1. During the lifetime of testator, in his presence and by his direction, various sums of money due him were paid to his son-in-law and the wife of the latter with whom the testator resided. After the testator’s death an attempt was made to surcharge the son-in-law, who was an executor, with the sums so received: Held, that in the absence of proof to the contrary the money must be presumed to have passed into the actual possession of the testator.</p> <p>2. The testator lived on his own farm with his son-in-law, the wife of the latter having charge of the household arrangements, the testator bearing a portion of the expenses, and the son-in-law receiving a portion of the receipts of the farm which he tilled: Held, that the son-in-law could not be surcharged with the rent of the farm.</p> <p>3. Real estate will- not be charged with the payment of debts and legacies, where the personal estate is more than sufficient to pay the same, unless the intention to charge the real estate and exonerate the personal estate is clearly manifest.</p>

<p>Certiorari to the Quarter Sessions of Montgomery county: Of January Term 1877, No. 136.</p> <p>Prior to the year 1874, what is now the “ School District of Abington” and the “ School District of Jenkintown” comprised one district, which was then known as the “ School District of Abington.’ While so united the Abington school distinct, in the year 1866, expended a large sum of money in the erection of school buildings.</p> <p>On December 8th 1874, by a decree of the Court of Quarter Sessions of said county, the borough of Jenkintown was created out of a portion of the township of Abington, and thereby, as provided by the Act of May 8th 1854, Pamph. L. 617, Purd. Dig. 235, became anew school district under the name of the “School District of Jenkintown.”</p> <p>On the 13th of December 1875"the present school district of Abington petitioned the court in the words of the Act of 11th April 1862, Pamph. L. 474, Purd. Dig. 236, pi. 6, to determine, on hearing, whether an undue proportion of the real estate and school houses belonging to the old district were within the bounds of the new district, and if so, how much money shall be paid therefor by the new to the old district; and if any money be on hand, or debt unpaid, or any tax, or other claim, be uncollected after the settlement of all accounts of the current year, that the court shall divide said money or debt amongst the districts in such proportions, and make such order as to uncollected tax or other claims as shall be just, in accordance with the provisions of the Act of Assembly in such case provided.</p> <p>The application was referred to a commissioner to take testimony and make report thereon, who'reported the sum of $3350, as due from the school district of Jenkintown to Abington.</p> <p>To this report, among others, the following exception was filed:—</p> <p>“ The so-called ‘school district of Jenkintown’ is not a separate ■ school district established by decree of court, so as to bring it within the proceedings under the Act of 11th April 1862, sect. 11, according to which said commissioner was appointed.”</p> <p>The court, Ross, P. J., sustained the exception, set aside the report of the commissioner, and dismissed the petition, being of the opinion that the provisions of the Act of 1862 did not extend to new school districts formed by the creation of boroughs, and a decree was entered accordingly, which was the error assigned by the Abington school district, which took this appeal.</p>

<p>Testator, after several other legacies and devises, gave to his nephew certain lands to hold to him, his heirs and assigns, and a subsequent clause of the will provided “that if any of the said legatees or devisees shall die before me, leaving children, the legacy or devise shall go to such children, and if any of them shall die after me without children, and without having bequeathed the legacy or devise given to him or her, the same shall go to his or her next of kin, who are at the same time lineal descendants of my father.” Held, that the will gave the nephew an absolute estate in fee.</p>

<p>1. Where upon a motion to quash an array of jurors it is alleged that the jury commissioners were not sworn at the time they selected the names of the jurors, and the court below finds as a matter of fact that they were sworn, this court will not disturb this finding where the evidence upon which the finding was had fails to disclose any manifest error.</p> <p>2. To show the motive for murder and to explain the prisoner’s connection therewith, it is competent for the Commonwealth to give evidence of the purposes, practices and objects of a society, organized for the commission of crime, and t(5 prove that those who committed the murder were members of said organization, and-that through its instrumentality it was committed.</p> <p>3. A detective who joins a criminal organization for the purpose of exposing it, and bringing criminals to punishment, and honestly carries out that design, is not an accessory before the fact, although he may have encouraged and counselled parties who were about to commit crime, if in so doing he intended that they should be discovered and punished, and his testimony, therefore, is not to be treated as that of an infamous witness.</p> <p>4. Under the 44th sect, of the Criminal Procedure Act, where one who is strictly an accessory before the fact is charged as a principal in an indictment, it is not necessary to state therein the manner in which or the means by which he accomplished the murder; it is sufficient if the charge be stated with such certainty that he may know what he is called upon to answer.</p>

86. Indictment of Allen 0-. Laros, for the murder, by poison, of his father, Martin Laros. At the trial before Meyers, P. J., it appeared from the evidence that on the 31st of May 1876, the family of the deceased, consisting of himself, his wife Mary, his children Irvin, Alvin, Clara, Alice, the prisoner Allen, a grandchild Flora, and a man named Moses Schug, who boarded with the family, all sat down to take supper.

<p>The provisions of the fourth and sixth sections of the Act of April 12th 1859, relating to building associations, do not apply to borrowers who are not members of the association, or who are not sui juris and incapable of acquiring membership therein, and where, therefore, a married woman gives a mortgage to one of these associations to secure the payment of a loan, together with fines, premiums and dues, the association can only recover from her the amount actually loaned, with legal interest, and this notwithstanding the amount received by her was expended in the improvement of her separate estate.</p>

49 and 50. These were two actions of ejectment for two farms, one brought by Daniel D. Main and others, against Rachael Ryder and James, Emily and Caroline Miner, and the other by the same plaintiffs against Horace and Henry Miner and Catharine Hooker. The plaintiffs claimed as the legal heirs of Daniel Miner, deceased, and the defendants as devisees under his will.

256. Case by Mary Feller and others, the widow and heirs of Henry Feller, against the Central Railroad Company of New Jersey, to recover damages for the death of said Henry Feller, which it ivas alleged was caused by the negligence of the defendant company. The facts are fully stated in the opinion of this court.

49. Case brought by King against Forks township to recifv^r damages for the value of his mare, alleged to have been killed by the negligence of defendant’s officers in not keeping the highway in safe condition. Plea, “Not guilty.” The plaintiff loaned the mare to Ellis Hoagland to use in his team. The other material facts, together with the offers of evidence made at the trial before Elwell, P. J., are stated in the opinion of this court.

<p>Appeal from the Orphans’ Court of Lancaster coxmty: Of May Term 1877, No. 108.</p> <p>This was the appeal of Reuben Romig, guardian of Simon Haffly, a minor grandson and legatee of Peter Haffly, deceased, from the decree of the court confirming the report of the auditor upon the administration account of the executors of said Peter Haffly, deceased.</p> <p>The facts are stated in the opinion of this court.</p> <p>The only question passed upon by this court was that raised by the following exception:—</p> <p>“ Tbe auditor committed an error by allowing the accountants a credit of $400, for small items paid out, without taking receipts, for which no credit Avas asked by them in their account, but allowed by the auditor solely upon one of accountants’ own testimony (to whose examination the exceptant objected), upon a new item of credit, AYhich did not appear in the account — said accountant being called by himself to prove said item of credit.”</p> <p>The court, Patterson, A. L. J., dismissed this exception, and from this decree this appeal was taken.</p>

148. This was the appeal of Barbara Gesell from the decree of the court awarding an inquest in partition in the estate of Abraham Erisman, deceased.

98. Appeal of Mary Eby and others, legatees under the will of Jacob Schumacher, deceased, from the decree of the court making distribution of the proceeds of the estate of said decedent. Jacob Schumacher died in Lancaster county in 1836,'leaving a will dated August 26th of that year.

97. Attachment execution sur judgment, issued by Heise & Kauffman against J. B. Reynolds, defendant, and A. H. Brinks, garnishee. Plea, nulla bona. ' On the 2d of October 1872, Brinks entered into a contract to grade sections 6 and 7 of the Columbia and Port Deposit Railroad, and on-the 9th of January 1873 contracted in writing with Reynolds to grade part of section 7.

<p>Error to the Court of Common Pleas of Lancaster county: Of May Term 1877, No. 164.</p> <p>This action as originally brought was account Bender by Jacob Evans against George K. Reed. Julius Levy ivas also named as a defendant, but his name was subsequently stricken from the record on plaintiff’s motion.</p> <p>Jacob Evans, the plaintiff, was examined on the trial as a witness in his own behalf. A verdict was rendered for plaintiff. The case, as developed on the trial, satisfied the judge before whom it ivas tried that the action should have been “ assumpsif,” and not, as originally brought, “ account render.” He therefore set aside the verdict and directed a new trial.</p> <p>Subsequently to this Jacob Evans, the plaintiff, died, and Caroline Evans, his administratrix, was substituted, and the form of action changed to assumpsit.</p> <p>When the cause was again called for trial, counsel on behalf of plaintiff, offered to read from the notes of testimony taken by the judge on the first trial, the testimony of Jacob Evans, then plaintiff, but since deceased.</p> <p>These same notes contained the evidence of Reed, who was also examined on the trial.</p> <p>The offer was rejected by the court, and no other evidence being given the court directed a verdict to be found for the defendant.</p> <p>The plaintiff took a writ of error, alleging that the court erred in refusing to admit these notes of the testimony of Evans, and the court sustained this contention and reversed the lower court. [See report of case in 28 P. F. Smith 415.]</p> <p>When the cause came on for trial again, after the testimony of plaintiff, including the judge’s notes of the evidence of Evans, was closed, the defence offered Reed, the defendant, as a witness in his own behalf. The plaintiff objected on the ground that as the action then stood the suit was by an administratrix, and the plaintiff having died the defendant could not testify as to anything which took place in the lifetime of Jacob Evans.</p> <p>The court overruled this objection and admitted the testimony.</p> <p>In discharging a rule for a new trial, the court, Livingston, P. J., in an opinion reviewed the following cases, decided since the preceding trial of this case: Evans v. Reed, 28 P. F. Smith 415; Speyerer & Co. v. Bennett’s Ex’rs, 29 Id. 445; Pratt v. Patterson, 31 Id. 114 ; and Sheetz v. Norris, 2 Weekly Notes 637, and then continued: “ So far as we have been able to gather the facts from the several cases, as reported, none of them appear to meet or rule the case before us, for the question now presented was neither raised nor passed upon in any of them, to wit: Where a plaintiff on the record in a cause has been fully examined and cross-examined, in open court, as to all the matters in controversy in the suit, and subsequently dies, and his administratrix is substituted— a re-trial ordered, and on the re-trial the testimony of the plaintiff, taken on the first trial, is admitted in evidence and read as a deposition to the jury, can the living defendant be admitted as a witness and permitted to testify in the cause “in answer to such testimony or deposition ?</p> <p>“ This is the question here raised, and here again Evans v. Reed, in the language of Judge Mercur, ‘ differs from any cause which has preceded it.’</p> <p>“ When this suit was instituted both parties Avere competent witnesses — both rendered clearly so by the same act, the Act of April 15th 1869, Pamph. L. 30. One of the parties, on a former trial of the cause, was examined and testified very fully as to all matters ■in controversy in the suit, and thus, as the Supreme Court have decided, perpetuated his testimony, so that it could be used (as a deposition may by the rules of law be read on the trial of a cause) at any subsequent time, and in any trial of the cause, whether he was absent, sick or dead.</p> <p>“ He has, therefore, testified to all he knew relating to all matters concerning this trial as fully as he could do if present. ‘ He being dead yet speaketh.’ His mouth has not been sealed even by death. His representative has the full benefit of his testimony. Why, then, he having been so permitted to testify on the trial, should the lips of the defendant, Avho Avas so unfortunate as to be alive and present at the trial, be closed, and he not permitted to speak in answer to the testimony of the original party to the cause against him. Justice and equity certainly do not require it. It is not to be presumed that the plaintiff, whose testimony was admitted on the trial, Avas less interested when he testified as to the contracts, conversations and transactions between him and George K. Reed, the defendant, out of which his cause of action originated, than the defendant was Avhen we permitted him to testify. Therefore the policy of the law-on the ground of interest does not require it — actus legis nemini facit injuriam. As w-e have seen ‘ the tendency of both judicial and legislative action 'is against the exclusion of evidence on the ground of interest;’ and the Act of 15th April 1869, is an enlarging and enabling act. The Hay, therefore, at the commencement of this action, placed the parties litigant on a perfect equality, and the intendment of the law- is that they should be kept on an equality, so far as their respective rights are concerned, until its close. It does not intend that by any construction given it one should gain •an undue advantage over the other.</p> <p>“ The deposition of the deceased party was read under the law permitting the testimony of absent, sick or deceased witnesses, when properly presented by depositions, to be read in evidence on the trial of a cause. This witness, it is true, was dead; but suppose he had only been sick or absent, and his deposition presented and admitted in evidence, what objection could have been successfully urged to prevent Reed, the defendant, from testifying ? But this witness is dead. What to him (so far as the purposes of this trial are concerned) was death but absence — absence caused by the act of God ? And shall the manner of his taking off, or the reason of his absence, work to the great injustice and injury of the defendant by preventing him from testifying in answer to the deposition of the absent witness ? It is said that actus dei neminifaeit injuriam. Shall this act of God, in removing and causing the absence of plaintiff after he has testified, be said to wrork so great an injustice and injury to the other party as to deprive him of the right to testify ? We think not.</p> <p>“ In addition to this what does this third section of Act of 1869 mean when it says that ‘ the testimony of witnesses, authorized by this act, may be had by deposition or commission issued, as the case may require, with such notice to the party to be examined, and to the adverse party, as is now or may hereafter be prescribed by the rules of the proper court touching the taking of depositions and testimony on commission ?’ Does it not mean that the testimony 'thus taken and presented by deposition, offered and admitted in evidence in the cause, shall have the same force and effect as if the witness were present in court and testifying on the witness stand? Is not that the intention and effect of the act? Where, then, is there to be found a reason, where the deposition of one party has been taken and used on the trial, whether he be absent by sickness, death or otherwise, for refusing the other party permission to testify in answer to such deposition, so ta,ken and used.”</p> <p>The admission of the evidence of Reed, the defendant, was the error assigned by plaintiff who took this writ.</p>

On the 23d of May 1874, Jacob Luckenbaugh issued a summons in case for slander against William Kohler, which was made returnable to the first Monday of July 1874. It was served on defendant on the 4th of June 1874. No further proceedings were had in the case until April 8th 1876, when the plaintiff filed a declaration and on the 19th of the same month in open court, judgment by default was entered against the defendant for want of an appearance.

188. Ejectment by the administrator of George Sower against Henry Weaver for a tract of sixty-four acres of land. Weaver is the son-in-law of Sower. The case was originally tried January 26th 1876, and the verdict was for the defendant. A writ of error was taken by the plaintiff and the judgment of the lower court reversed (see report of case in 28 P. E. Smith 448). On the 26th of August 1876 George Sower made his will, wherein 'he appointed hip son John his executor.

189. In Equity. This was a bill in equity filed by John B. Warfel and Edward Wiley, executors of William M. Wiley, deceased, agaiiist George Calder, Jr., Hannah J. Wiley and The Fidelity Insurance, Trust and Safe Deposit Co. of Philadelphia, guardian of the five minor children of said William M. Wiley, deceased, praying the court to decree specific performance of a contract set forth in said bill.

<p>Error to the Court of Common Pleas of York county: Of May Term 1877, No. 155.</p> <p>Assumpsit by J. G. Patterson against Hauer & McNair, upon the following promissory note :—</p> <p>“ $150.00.</p> <p>July 15th 1873.</p> <p>“ Sixty days after date I promise to pay to the order of Hauer & McNair, at the Shrewsbury Savings Institution,, one hundred and fifty dollars, for value received, without defalcation.</p> <p>John Y. Gemmill.”</p> <p>“ Endorsed, Hauer & McNair,</p> <p>J. G. Patterson,</p> <p>Hauer & McNair.”</p> <p>Defendants pleaded non-assumpserunt, payment, payment with leave, &c.</p> <p>At the trial before Eisher, P. J., the defendants offered to prove by Gemmill, the' maker, that he was indebted to defendants to the amount mentioned in the note; that when they demanded payment he asked sixty days’ time, which defendants declined to give without security; that thereupon the note was drawn and witness took the same to Patterson and asked him to go his security for the amount; that Pattersqp. replied, “ certainly I will, you have often gone security for me and I for you;” that witness'then produced the note and remarked to Patterson that it was not drawn properly for a surety, to which Patterson answered, “ that makes no difference, I will put my name on the back of it and become security for its payment,” and that he thereupon wrote his name upon the back of the note, upon which there was then no endorsement.</p> <p>Defendants further offered to prove that before the note had matured they took it to the First National Bank of York for discount, having endorsed it after the defendant, and being told by an officer of the bank that the note could not be discounted because the payees had not endorsed it'properly,-their name being written above that of Patterson; that at its maturity the note Avas protested, and the bank brought an action against Patterson, who paid the amount of the note before judgment.</p> <p>Both of these offers were rejected by the court, who directed the jury to find for the plaintiff, which action of the court was the error assigned.</p>

<p>The Act of the 18th of March 1874, directs the Courts of Common Pleas, when an array of jurors is quashed for any irregularity in the selection of persons or the depositing, of the names in the jury wheel, to order a now selection of such number of jurors as said court shall designate, and that thereupon the jury commissioners shall meet and take out of the wheel all names therein deposited and make a new selection of persons, and deposit the new names so selected in the wheel. Held, that it is not a compliance with the act to select any portion of those taken from the wheel and deposit them again therein.</p>

<p>Error to the Court of Common Pleas of York county: Of May Term 1877, No. 95.</p> <p>The parties to this action as they stood on the record of the court below, were The Ashland Iron Company, plaintiff, and The Hanover Water Company, defendant. The action was instituted by the presentation to the Court of Common Pleas of York county, on the 7th of September 1874, of a petition for the appointment of viewers to assess damages alleged to have been sustained by the plaintiff on account of the construction of the works of the defendant. Both parties appealed from the report of the viewers, and on the 30th day of August 1875, the court directed an issue to be framed in the case by treating the petition for the appointment of viewers to assess damages presented by the plaintiff as a declaration, the defendant to plead “Not guilty,”, and the cause to be tried on the issue formed on such pleadings, without regard to the form of action. The petition of the plaintiff set forth that the Ashland Iron Company was a corporation duly incorporated under the laws of Maryland, and authorized by Acts of Assembly of the state of Pennsylvania to take and hold land in Pennsylvania in fee simple or otherwise; that it was and had been for six years the owner of a tract of land in Heidelberg township, York county, containing about twenty-four acres, more or less, further described by named adjoiners; that there was in and upon said tract of land a large and valuable bank of iron ore; that a considerable stream of water had always flowed by its natural channel in, over, upon and across said tract of land, until diverted as in said petition further set forth; that said stream of water afforded the petitioners a water-power of great value to them; that they were enabled by its use to propel their machinery used in mining and preparing and washing their ore' and to wash and prepare said ore for smelting ; that the defendant had erected a dam on said stream at a point above where it had always been accustomed to enter the petitioners’ land, and had wholly diverted the water from its accustomed flow by the natural channel aforesaid and prevented its flow into and over the petitioners’ land, whereby they were entirely deprived of the use of said water for propelling their machinery or washing their ore, or watering the stock on their land, to the great damage of the petitioners; that the said land was chiefly valuable as an ore property for the purpose of mining iron ore, and that the petitioners averred and believed that said iron ore could not be profitably mined without the use of said water in its former accustomed flow; that the defendant by its servants and employees,- had entered upon said tract of land and made extensive excavations therein and laid pipes therein, to the great damage of the petitioners. They alleged that they could not agree with the Hanover Water Company upon the amount of compensation to be paid to them for the said damages, or upon three dis- . interested and competent persons to assess the damages — and prayed the court to appoint three such men, to ascertain and report to the court what damages the petitioners were legally entitled to recover from the said Hanover Water Company, by reason of the acts and matters alleged in the petition, and what compensation should be paid to them therefor by the said Water Company.</p> <p>At the trial before Eisher, P. J., to show that the ore-bank was not abandoned, and the reason why it was not worked all the time, the plaintiffs offered to prove (1) that the bank being owned by them in fee simple it was held in reserve, and that they worked their leased banks first, as the leases thereon would expire; (2) that while there was no formal resolution of the hoard of managers to that effect, the matter was frequently talked about at their meetings and was assented to by all the managers present; and that this policy was carried out by the company’s superintendent; and (3) this bank the company so held in reserve as one of their best banks in York county.</p> <p>The court admitted the evidence under these three offers, which constituted the first, second and third assignments of error.</p> <p>Becker, a witness for defendant, testified that he owned lands and was acquainted with the general market value of lands in the neighborhood.</p> <p>The defendant then offered to prove by him “ that the land of the plaintiff, on which this ore-bank is located, was worth as much when and immediately after the defendant’s dam was built, as it was immediately before, for the purpose of enabling the jury to assess the damages.”</p> <p>The court rejected this evidence, as stated in offer, because the greater portion of plaintiff's claim was for an alleged deprivation of their ore land of the water used for washing, by the erection of the Hanover Water Company’s dam, and the witness by whom the faets stated in the offer were to be proved had not shown such acquaintance with the value of ore land as would enable him to give an intelligent answer. The court, however, allowed the defendant to prove the general value of lands of this character in the vicinity for farm land, or both together, or any other value which he was acquainted with.</p> <p>This was the fourth assignment.</p> <p>Becker then testified: “ I know the general value of ore lands in the neighborhood, know the tract in question, I know it has on it an ore-bank.”</p> <p>Defendant then proposed to prove by witness on stand that the ore-bank property of the plaintiff was worth as much at and immediately after the building of the defendant’s dam as it was before, for the purpose-of enabling the jury to assess the amount of damages, if any, sustained by the plaintiff.</p> <p>Upon objection the court asked the witness what was his knowledge or his means of knowing the value of the ore lands in 1872 to 1873.</p> <p>The witness answered: “ I know what they were sold at, but can’t tell the date; I know the price they were sold for when iron was high; Eichelberger sold his land, ten acres, for $4000, if I am not mistaken ; Kauffman bought from Miller, as Miller said, for $4500, if I am not mistaken ; I can’t state; I suppose about five acres is the quantity; I was on those tracts; I know nothing of these sales; was not along when they were sold; only know from hearsay; I have no practical knowledge of ore lands now mined.”</p> <p>The court rejected this evidence because the witness had not sufficient knowledge of the value of ore lands to give an opinion, which was the fifth assignment.</p> <p>Defendant then offered to prove that the tract of land, owned by plaintiff, through which the stream of water known as “ Gitt’s run,” for the alleged diversion of which by the defendant the plaintiff seeks to recover damages in this suit, flows, was assessed by the assessor for taxes in that township in the fall of 1872, at $1400 for the tract of land and $600 for the ore-bank thereon, and that plaintiff paid taxes on that assessed valuation, for the purpose of enabling the jury to ascertain the value of said tract of land and ore-bank at the time when the alleged damage, if any, was sustained, and to assess the amount of damages, if any, sustained by the alleged diversion of water.</p> <p>Also, the assessment books of Heidelberg township for the years 1871, Í872 and 1873, in evidence, for the purpose of showing that the property was assessed at a valuation of $1400, and the ore-bank itself at $600; to be followed by proof by witness on the stand and others that plaintiff paid taxes for said property on the amounts of said assessments; this for a like purpose.</p> <p>The court rejected both these offers, which were the sixth and seventh assignments.</p> <p>[Witness on the stand having testified that Philip A. Small was carrying on the work for the Ashland company, and. Samuel Small having testified that his brother Philip A. Small, in attending to the bank, was acting for the Ashland company, the defendant offered to prove by the witness that he had a conversation with P. A. Small, at the Porter ore-bank, when it was in operation in 1863, and P. A. Small was carrying it on for the Ashland company, when he told the witness that every ton of ore they got out there cost a little over five dollars a ton to mine it, for the purpose of enabling the jury to assess the damages.</p> <p>The court rejected this evidence, on the ground that it did not appear that the alleged declaration of P. A. Small was in the line of his duty as superintendent or agent of the company, if he was superintendent or agent.</p> <p>This was the eighth assignment.</p> <p>The plaintiff’s first point was:—</p> <p>That the supply pipe leading from the reservoir to the borough of Hanover is an appropriation of all the water that can be conveyed through said pipe and used, and amounts to an appropriation of such an amount of water, and the defendant must respond in damages to the plaintiff for the value of all the water that will pass through said pipe, even to the extent of the whole stream, if the pipe will convey it; and particularly is this the case, as the defendant has refused to designate the quantity of water appropriated by it, in answer to rules on it to do so, on file in this case.</p> <p>Answer. “ This point is correct.”</p> <p>The defendant’s third point was:—</p> <p>That the fact, if found by the jury, that the plaintiff has not operated its ore-bank, nor used the water of the stream flowing through its property for the purpose of driving a washer or washing ore during the last eleven years, of which a number preceded the building of its dam by the defendant, should be taken into consideration by the jury in mitigation of damages, if they should find that the plaintiff has sustained any perceptible, actual, direct and immediate damages, which can only be allowed in this case.</p> <p>Answer.’ “ We cannot answer this proposition in the affirmative, but we instruct the jury that the measure of damages is the difference in the market value of the property of the plaintiff as a farm and ore-bank immediately before the diversion of the water by the defendant and immediately after, as affected thereby; and that if the plaintiff reserved the Porter ore-bank for future use, because they held it in fee, and worked others, which they had leased and were to pay rent for, whether they mined them or not, the fact that they did not work the Porter mine for some years is explained and ought not to prejudice the plaintiffs.”</p> <p>The answers to these points were the ninth and tenth assignments.</p> <p>The verdict was for the plaintiff for $3200, and defendant took this writ, the assignments of error being those heretofore noted.</p>

<p>1. Where a church congregation divides into parties and by reason of numbers and the character of the rights of the parties damages are unsuitable as a means of redress, and the case admits of no adequate remedy at law, equity alone can apply the required remedy.</p> <p>2. Courts of Common Pleas in this state being invested with the powers of a court of chancery in the supervision and control of unincorporated societies, have jurisdiction of disputes between the members of unincorporated religious associations as to their rights and privileges in an estate conveyed for their use.</p> <p>3. A majority of a church congregation may direct and control in church matters consistently with the laws of the organization or denomination to which it belongs, and acting within the limits and under the rules of the articles of the association the power of the majority is absolute, and the minority can assert no privilege or immunity to justify resistance to any legitimate action the majority may take.</p> <p>4. A minority of the persons in an unincorporated association, in whom a trust of a church property is vested, cannot by procuring a charter of incorporation acquire the right to the management of the property in opposition to the will of the majority of those interested.</p>

<p>Damages for the taking of property hy a railroad company arise by an act of appropriation under the state power of eminent domain, and do not rest in contract, express or ■ implied, and the railroad company is not entitled, therefore, to a stay of execution under the provisions of the Act of 16th of June 1836.</p>

151. Ejectment by James Mann and others against David W. Mullin, trustee, for a farm of three hundred acres of land, situated partly in the borough and partly in the township of Bedford.

No. 206. The facts were these. John Culbertson died in 1850, intestate, leaving a wife, Hannah, and six children.

No. 211. Mary S. Sawtelle died in 1871, seised of two tracts of land and leaving certain personal property, a daughter, Eva A., married to J. J. Cart, and her husband, Nathaniel H. Sawtelle. Letters of administration were granted to the latter on the estate of the decedent.

<p>The power of the Orphans’ Court to set aside a sale of real estate made in pursuance of its own order is a matter that rests within the sound discretion of said court, and its exercise, as a general rule, will not be reviewed unless the record shows palpable and gross abuse.</p>

183. Scire facias sur mortgage issued by The Juniata Building and Loan Association against Samuel Mixell and Rebecca, his wife. The association was incorporated by the Court of Common Pleas agreeably to the provisions of the Act of April 12th 1859. On the 7th of August 1873, Mixell and his wife executed the mortgage in suit to the association to secure a loan of $400 to Mixell, who was a stockholder. The mortgage was upon the separate property of the wife.

32. This was a case stated the facts of which were, in brief, as follows: George W. Dibert was severally prosecuted in Bedford county for perjury, surety of the peace, for procuring an abortion, adultery and subornation of peijury, and after arrest and before trial escaped.

167. Scire facias sur mortgage issued by John A. Ahl, for use of Daniel V. Ahl, against John P. Rhoads and Samuel S. Shryock, assignees of the Farmers’ and Mechanics’ Bank of Shippensburg. The following, in substance, was the case stated for the opinion of the lower court:— “ The Farmers’ and Mechanics’ Bank of Shippensburg was incorporated on the 11th day of April 1862, by a special act of the legislature (see Pamph.

<p>A motion, was made for a new trial in an action of ejectment on the ground that the verdict was irregularly recorded, and at the suggestion of the court an order was agreed upon by both parties to the action whereby the record was amended and the verdict permitted to stand without prejudice to the question of mesne profits,, which was the subject of controversy. Subsequently, a difficulty arising about the construction to be given to this order, the'court made another order, explanatory of the first, and directing that if the terms of the second order were not accepted that the motion for a new trial should be reinstated. The plaintiff refused, whereupon the court made absolute the original motion for a new trial. Held, that this action of the court was not erroneous.</p>

<p>Error to the Court of Common Pleas of Cumberland county: Of May Term 1877, No. 145.</p> <p>Trespass for mesne profits by the heirs of Elizabeth Ege, deceased, against John T. Kille and Charles Wharton.</p> <p>The land of which the mesne profits were claimed was recovered by the plaintiffs from the defendants, in an action of ejectment brought 7th June 1872, in which a verdict in their favor was rendered 16th October 1874. On the 26th October 1874 the plaintiffs were put into possession of the premises under a writ of habere facias possessionem. In the ejectment John T. Kille defended as landlord.</p> <p>The action of ejectment was originally begun by the heirs of William Cox, deceased, who, on the trial, were nonsuited. The heirs of Elizabeth Ege, deceased, who recovered the verdict and judgment in that case, did not come upon the record as parties plaintiff until 24th April 1874, from which time only did the action commence as to them. (See Kille et al. v. Ege et al., 1 Norris 102.)</p> <p>The plaintiffs in this suit sought to recover mesne profits from November 1869 down to the execution of the habere facias, or for the time anterior to the 24th of April 1874, and the profits claimed were those derived from the ore mined and carried away by the defendants and their lessees.</p> <p>It was shown that the title to the land was in the plaintiffs for and during the time for which mesne profits were sought to he recovered.</p> <p>The trial was had before Herman, P. J. Twenty assignments of error were made to the admission of evidence on the trial, to the ansAvers to points and the charge of the court. The principal questions involved were as to the value of the ore taken, the manner of- proving that value, and the character of the improvements which might be recouped or set off against the value of the ore mined and appropriated by defendants; and for convenience the assignments, as they bear upon these questions, have been grouped together:—</p> <p>1. To fix the value of the ore in place and to prove its value.</p> <p>Henry Gruiterman, a witness on the stand, having stated that he was one of the lessees of the Gruiterman & Robertson bank ; that he managed it by and through a superintendent, the usual way of managing banks ; that he sent to his superintendent, from time to time, money for the expenses of the bank, in accordance with amounts shown by pay-rolls sent him by the superintendent, and that, by means of an examination of the pay-rolls and the amounts he paid for the expenses of the bank, he can state whether or not he operated- the bank at a profit or loss over and above what he received from the sales of the ore; the defendants proposed to ask the witness whether or not he operated the bank at a loss, and if so, what loss, and at what expense per ton he mined the ore, together with an exhibition of the pay-rolls and his account of expenses and receipts.</p> <p>Under objection admitted, which was the 1st assignment.</p> <p>Defendants proposed to prove by John T. Kille, one of the defendants, the amount of money he paid in developing the ore upon this property, recovered by the plaintiffs in the ejectment, and in taking out the ore for which he has made return in this case, showing the gross amount received for the same, to be followed by the evidence of the parties to whom he made the payments, that the money was expended for the purpose set forth alone, and this for the purpose of showing the increased value of the property by reason of this development, and that the ore taken out by the defendants was more than paid for by such development.</p> <p>Under objection admitted, and 4th assignment.</p> <p>The defendants also offered the pay-rolls referred to by the witness Haskell, the agent of Kille, in connection with the testimony of the witness, for the purpose of corroborating his statement, as to the cost of mining the ore, and of showing hoAY the money sent to him by Mr. Kille was expended.</p> <p>Admitted under objection, and 5th assignment.</p> <p>The 6th point of the plaintiffs was :—</p> <p>“ The value of the ore in place is the royalty, which responsible parties, competent to judge of the value, would be willing to pay for the privilege of mining it.”</p> <p>The court answered as follows, which was the 13th assignment:— “ This point is refused. The value of the ore in place is ascertained by deducting the cost of mining, cleansing and delivering the ore in the market, from the market value of the ore delivered in the market — the difference is its value in place.”</p> <p>The 8th point of plaintiffs was :—</p> <p>“ If the jury believe that John T. Kille, one of the defendants, was not skilled in mining ore; that he gave no personal attention to the mining operations; that the prices paid by him for superintending those operations, viz., $200 per month to Charles Wharton, and $1000 per year to E. F. Haskell, were extravagant and unnecessary; that the gross amount of his expenditures was greatly above the legitimate cost of opening and working the mines on plaintiffs’ lands, then little if any weight should be given to the evidence of the amount expended by him, and it should be so regarded by the jury in ascertaining the real or legitimate cost of mining, or the value of the ore in place.”</p> <p>The court answered as follows, which was the 14th assignment:—</p> <p>“We decline to answer this point as requested. If, however, you find the facts to be as therein stated, then you should so consider the evidences of the amount expended by Kille as that. No extravagant or unnecessary expenditures, but only such, or so much thereof, as are proper and legitimate expenditures, should be tak,en into account in ascertaining the real or legitimate cost of mining or the value of the ore in place.”</p> <p>The defendants’ first point was —</p> <p>“ The royalty named in the leases given in evidence in this case is not the absolute measure of the value of the ore in place on the lands of the plaintiffs, but is a measure of such value only in connection with the location of the lands and their natural surroundings.”</p> <p>The court affirmed this point, which was the 15th assignment.</p> <p>The following portion of the general charge was the 20fch assignment :—</p> <p>“ The value of the ore in place you will ascertain by estimating the cost of mining, cleansing, and putting the ore into market, and then deducting this cost from the value of the ore in the market— the difference will be the value in place.”</p> <p>2. In regard to the character of the improvements, defendants proposed to prove the value of the machinery attached to and used in connection with the ore-banks on the lease as a measure of the value of the improvements to the property, for the purpose of enabling the jury to judge of and fix the value of such improvements to the property, and of their permanent character, and to show the necessary conveniences and machinery required in mining the ore.</p> <p>Admitted under objection, and 2d assignment.</p> <p>The 3d assignment was to the refusal of the court to permit the plaintiffs to ask a witness whether or not he was disturbed in the possession under their lease, by these plaintiffs.</p> <p>The 6th assignment, the refusal of the court to permit plaintiffs in rebuttal to prove that Gruiterman and Robertson, lessees of the defendant _ Kille, since the recovery of the land by the plaintiffs and since the execution of the habere facias, did, on March 7th 1876, and on March 10th 1876, take away from the Gruiterman and Robertson bank, two car loads of machinery, consisting of engines, pumps, pipes, boilers, &c., and that this was done without objection by the plaintiffs, and under the terms and conditions of their lease with Kille, as accepted by the plaintiffs on the attornment of said lessees : this to show that the fixtures, machinery and property connected with the ore-bank did not change its character (of the time of the possession under Kille), when the writ of habere facias was executed; and that defendants should not be permitted to claim the same as permanent improvements, passing with the land.</p> <p>The plaintiffs’ third point was :—</p> <p>“ The plaintiffs are entitled to recover from the defendants in this case, as damages, the value in place of all the‘ore, timber, &c., taken from the Cox tract by the defendants, or by their lessees, with interest from the time it was taken ; and the defendants are entitled to credit, against that value pf the ore, only for such improvements put upon plaintiffs’ land by defendants or *by their lessees, as the jury believe are of a lasting and permanent character, adding a permanent increase of value to the land, and being of lasting or permanent benefit to it.”</p> <p>The 11th assignment was the court’s answer, which was,</p> <p>“ This point is answered in the affirmative, and we instruct you as requested, and in addition say to you in explanation, that improvements are of a lasting and permanent character when they are annexed to and made part of the freehold, and give an increase of value to it. The increase is a permanent increase if the value of the land has been increased by the permanent improvements made or put upon it; and if such improvements have increased the the value of the land, they are a lasting and permanent benefit to it.”</p> <p>The 5th point of the plaintiffs was:—</p> <p>“ If the jury believe that the machinery, buildings and conveniences for mining ore, put by the lessees of the defendants upon the land of the plaintiffs, were for temporary use only, and not structures of a lasting and permanent character, then they are not such improvements as entitle defendants to credit against the plaintiffs’ demand in this action.”</p> <p>The qualification contained in brackets in the following answer to this point was the 12th assignment:—</p> <p>“We answer this point in the affirmative, and so instruct you. If you believe the machinery, buildings, and conveniences for' mining ore were for temporary use only, and not structures of a lasting and permanent character, then they are not such improvements as entitle defendants to credit against the plaintiffs’ demand in this action. [And we also instruct you that they are structures of a lasting and permanent character, if they are annexed to and made part of the freehold and give an increased value to it,”]</p> <p>The defendants’ 5th point was:—</p> <p>“ The engines, boilers-, washers, planes, drums, pumps, ropes, cars and all other matters necessary to convert unimproved land into ore-banks opened and ready to operate as such, are permanent improvements to the property, whether they will last a limited number of years or not, and the defendants are entitled to the difference in value between the property as it was without them and as it was when the plaintiffs were put in possession of it on October 26th 1874, with them in its distinctive character as ore-banks ready to operate, as a defence to the value of the ore in place and before it was taken from the ground.”</p> <p>The 16th assignment was the following answer of the court to this point:—</p> <p>“ In answer to this point, we instruct you that the engines, boilers, washers, planes, drums, pumps, ropes, cars, and all other matters necessary to convert unimproved land into ore-banks opened and ready to operate as such, are permanent improvements to the property, whether they will last a limited number of years or not, provided they be necessary parts of the machinery and fixtures erected and put upon the land for that purpose, and provided also such machinery and fixtures were annexed to the freehold and made part of it and give an increased value to the land. And if, therefore, you find these things to be permanent improvements giving increased value to the land, the defendants will be entitled to the difference in value between the property as it was without them and as it was when the plaintiff's were put in possession of it on October 26th 1874, with them in its distinctive character as ore-banks ready to operate, as a defence to the value of the ore in place and before it was taken from the ground; just to the extent, however, that such difference of value was produced by such improvements made and put upon the premises by the defendants and their lessees.”</p> <p>The 17th assignment was to the affirmance by the court of the sixth point of the defendants, which was:—</p> <p>“ Whether fast or loose, all the machinery of an ore-bank which is necessary to constitute it such and without which it would not be an ore-bank equipped and ready for use as such, are á part of the freehold, and the recovery of the land by the plaintiffs in the action of ejectment gave to them the ore-banks on it with all the machinery, whether fast or loose, and necessary to constitute them such equipped and ready for use.”</p> <p>The 19th assignment was to the leave given by the court to the defendants to send out with the jury a statement w7hich, by its highest estimate, allowed the plaintiffs $17,394.23, being for 30,249.12 tons of ore, at 50 cents per ton, with interest from Novembers 1st 1874, against which the defendants claimed $17,222.2D as the average value of improvements, or $21,666.67 as average increased value by machinery and development of ore, to the property as ore-banks. This statement was also accompanied by a list of the various improvements made to the several ore-banks.</p> <p>The verdict was for the plaintiffs for $1839.30, and judgment was entered thereon. The defendants took this writ, the errors assigned being those noted heretofore.</p>

<p>Appeal from the Court of Common Pleas of Adams county: Of May Term 1877, No. 177. . •</p> <p>Appeal by Ann Ziegler from the decree of the court confirming the report of an auditor, who refused to permit her to participate as a creditor in the assigned estate of her husband, David Ziegler, who was insolvent.</p> <p>In May 1875 David Ziegler executed a deed of voluntary assignment for the benefit of creditors, his wife joining therein. When the assignee filed his account it was referred to an auditor to distribute the balance in the assignee’s hands. Mrs. Ziegler made claim to a share in the distribution, alleging that her husband’s estate was indebted to her in the sum of $2481.35. This claim was based upon a note for $4481.35, given to her by her husband in 1874, upon which was endorsed a credit of $2000. This note of $4481.35 was the amount of an obligation, with interest, which David Ziegler gave his wife in 1850, as an acknowledgment of his indebtedness to her in the sum of $1807, money received from his wife’s father, Jacob Waybright, in various sums, prior to 1848, and which was an advancement to his daughter, as appeared by the following clause in the will of Waybright, who died in 1850: “ * * * I will and bequeath to my daughter Ann, intermarried with David Ziegler, eleven hundred and ninety-three dollars, together with eighteen hundred and seven dollars already paid to the said David Ziegler; the said sum of eleven hundred and ninety-three dollars I give to my said daughter, allowing no part or interest therein to be drawn by or to be for the use or benefit of her said husband.”</p> <p>The husband testified that “ the note was for money that came to his wife from her father. She let me have it, and I used it. I told her that of course I would pay it back.”</p> <p>.The auditor found that there were no other admissions or declarations of the husband at the time he received the money prior to 1848, and that his evidence above given was unworthy of credence. He was also of opinion, that as the money had been taken possession of by the husband and used as his own, nothing which he could do, after the Act of 1848, could give it back to the wife as against the creditors of the husband, and the notes were of no avail as evidence for any such purpose. Further, that there were no such declarations of the husband at the time of receiving the money that would rebut the presumption of law that the husband had not reduced the money into possession : and he therefore disallowed the wife’s claim.</p> <p>She excepted, but the court, Herman, P. J., confirmed the report, • and from this decree this appeal was taken.</p>

<p>Appeal from the Orphans’ Court of Adams county: Of May Term 1877, No. 140.</p> <p>Adam Sowers died in 1868, leaving a widow, Lucinda, and three minor children, of whom John L. Bupp was appointed guardian. The widow married Isaiah King, in 1876. The children did not make their home with the step-father, but lived elsewhere, under arrangements made by the guardian. Their mother died in December 1876, seised and possessed of certain real estate and personal property. The husband administered upon the estate, and to him the guardian applied to have appraised and set apart $300 worth of property elected to be retained by him for the use of the children under the provisions of the Act of April 14th 1851, Pamph. L. 612, Purd. Dig. 416, pi. 60. King refused, and the guardian obtained a rule upon the administrator to show cause why the property should not be appraised and set aside for the use of his wards, who in his answer denied that the petitioner was in law entitled to have the same so appraised and set aside.'</p> <p>The court, after argument, made the rule absolute, and hence this appeal.</p>

<p>Where an original judgment is revived after the payment of usurious interest thereon, without allowing credit for such payment, the defendant in the judgment cannot avail himself of the defence of usury and ask to have deducted the amount so paid out of the proceeds arising from an execution upon the judgment. He should have applied to the court to open the revived judgment; standing unopened it was conclusive and he could not go behind it to show a defence.</p>

<p>Error to the Court of Common Pleas of Adams county: Of May Term 1877, No: 188.</p> <p>This was a case stated wherein John B. Waugh and others were plaintiffs, and James H. Marshall and Joseph Kittinger, executors of John Waugh, deceased, defendants.</p> <p>The material portions were as follows :—</p> <p>John Waugh died in April 1874, having made his will dated November 7th 1870, which was proved April 28th 1874, and letters testamentary granted to the defendants, the executors named in the will.</p> <p>The plaintiffs are the children of James Waugh, late of Grayson county, Va., who was a brother of John Waugh, and survived him, and died on the 9th day of August 1875.</p> <p>John Waugh and James Waugh were sons of William Waugh, who'died in the year 1823, having devised to them his farm in Hamiltonhan township, Adams county, containing 300 acres.</p> <p>James Waugh conveyed to John Waugh his portion of the lands devised to them by their father, by deed dated June 14th 1852.</p> <p>On the 7th of July 1873, John Waugh executed and delivered to John B. Waugh and the other parties plaintiff, a deed in fee simple for all the lands devised to him and James Waugh by their father, as aforesaid, excepting 18 acres which he had previously sold to John Grelbaugh. The deed, after the description of the property, contained this clause: “ Possession of all said premises to he given at the death of the said John Waugh, together with all and singular the buildings and improvements, ways, waters, watercourses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and the reversions, remainders, rents, issues and profits thereof, and all the estate, right, title, interest, property, claim and demand whatsoever, of the said party of the first part in law, equity or otherwise howsoever of, in, to, or out of the same.” This deed was recorded July 8th 1873.</p> <p>The consideration named in the deed was $2000, but there was a further consideration in a release given by James Waugh, by his attorney in fact, John B. Waugh, to John Waugh, dated the same, July 7th 1873, said power of attorney bearing date July 1st 1873. '</p> <p>At the time of the execution of the deed by John Waugh to the plaintiffs, and previously thereto, the farm in question was held under lease from him by J. W. Kittinger, as his tenant, farming the lands and delivering a share of the crops as rent. John Waugh was a bachelor and had his home in the mansion house on his farm, with his tenant, and continued there until his decease in April 1874, at which time Kittinger, the tenant, was holding over under his lease for the previous year, which ended on the 1st of April; and he continued to hold the property on the same terms for the remainder of the year.</p> <p>At the time of the death of John Waugh there were growing upon the home farm 45 acres of wheat sown in the fall of 1873, and 18 acres of oats sown in the spring of 1874; these were harvested after his death. The landlord’s share in these growing crops was appraised by the appraiser of collateral inheritances, and also by the general appraisers as the estate of John Waugh, deceased, and the net proceeds thereof, amounting to $392.98, were received bv the defendants, April 1st 1875.</p> <p>The plaintiffs claim the net proceeds of the landlord’s portion of the wheat and oats sown upon the farm in John Waugh’s lifetime, and harvested after his decease.</p> <p>If upon these facts the plaintiffs are entitled to recover, judgment to be entered in their favor for $411.98 and costs; if otherwise, judgment to be entered for defendants.</p> <p>The court (Boss, P. J., of the 38th judicial district) delivered an opinion, which is herewith given in extenso, on account of the novelty of the question involved and the learned and comprehensive manner in which it is discussed :—</p> <p>“ This case is one which is well calculated to lead the legal mind into error. I had 'prepared an opinion ruling that the grantor, John Waugh, was a tenant for life, and that the rent was to be apportioned in pursuance of the provisions of the Act of February 24th 1834, Pamph. L. 73, sect. 7.</p> <p>“ In that opinion I expended much time and labor, and I think I demonstrated • that the estate of the grantor was a freehold— that the deed did not operate as livery of seisin, although delivered, until his death. This I still believe to be true; and while he lived John‘Waugh had a freehold; but I am now satisfied that all this labor and research was upon a matter that did not touch the point at issue.</p> <p>“ The question is whether the deed — the instrument which controls here — vests the right to the rent in the executors or grantees. A tenant for life may merge his particular estate in the remainder. This can be done by deed. If he can merge the whole, he can do so with a part. It cannot be denied that he may assign the right to the rent to the person in remainder, either for a year or a series of years. If he does so, it is perfectly competent for his assignee to receive it.</p> <p>“ To put the case most strongly against the plaintiffs, I will treat the grantor as tenant for life, as I think he is. If he be not such tenant, I can see nothing in the way of plaintiffs’ recovery; for save by the statute rent cannot be apportioned: Rockingham v. Penrice, 1 Peere Williams 178; Toller on Ex’rs 177-8. It is always an incident of the reversion: Co. Litt. 143; 2 Bl. 176. But it is not always inseparable : Id.</p> <p>“ Assuming then, for the sake of the argument, that after his conveyance the grantor was tenant for life, and a freeholder who had not passed livery of seisin to his grantees, we will turn to the deed to determine the status of his interest at his death.</p> <p>“ He conveyed with these words : (The court here recited the portion of the deed contained in the case stated.)</p> <p>“ This seems to be decisive. Pie could have conveyed all in his lifetime. He did not see fit to do th&t. He reserved a life estate, and directed that upon his death everything he had reserved should pass.</p> <p>“ Suppose the occupancy, the possession, had not been reserved. Clearly the deed would have conveyed the rent accrued, but not yet payable. He simply postponed until his death the action of this conveyance ; immediately upon his death it became operative, and conveyed the rent precisely as if he had assigned it in his lifetime. This seems to be too clear to admit of argument. If it once be conceded that a tenant for life may merge the particular estate by conveyance in his lifetime, it follows logically that, he may convey, its incidents. This is the case here. B.y this deed he conveyed all the incidents of his life estate, if such it were, at his death to the grantees in the deed. The Act of 1834 apportioning the rent was a right conferred by statute; but it was not inalienable, and the conveyance, in express terms, aliened it.</p> <p>“ Thus far the reasoning has been on the assumption that the grantor reserved a life estate. As has been said, that is the opinion of the court; but if it be true that the right of occupancy alone was reserved, that no particular estate ivas outstanding, then the case is clear as the noonday sun. In that event the rent could not be apportioned, and the whole of it would be payable to the owners of the fee.</p> <p>“ There is another view, as yet unnoticed. What interest— what was the quantity of the estate which the deed vested in' the grantees pending the life of the grantor ?</p> <p>“ First, it was an estate in expectancy, it was an estate in-remainder, and that remainder was vested. It therefore carried with it the reversion of all leases made by the grantor during his life, by the operation of common-law principles.. The statute apportioning rent between the executors of the tenant for life and the remainderman is inoperative here, for the tenant for life is the grantor, and his grant carried the rent by express terms, eo instanti with the expiration of his life. lie was the owner of the fee, he aliened it sub modo, and his rights, at his death, by force of his conveyance, vested in the remainderman. Had he conveyed- in hi$ life absolutely, the rent would have passed. He conveys absolutely in his lifetime, to take effect at his death. The result must be the same.</p> <p>“ Again, suppose that the same language was used in an executory devise — the reservation being in the same language, and the devise in the same terms, surely upon the termination of the particular estate the devisees in remainder would have taken fee and leasehold, notwithstanding the statute.</p> <p>“ The case is sui generis, and it is the first instance in my experience where a tenant in fee simple, by the same conveyance, parts with the title and creates a life tenancy. The doubt in the case arises from the fact that the legal mind, in dealing with estates for life, involuntarily calls up that class of freeholds created by a third person, with remainder over. It was to these that the statute was intended to apply ; but it cannot operate to'defeat the intention of the grantor, or to enable his executors to take that which he expressly grants to others. Again, any deed is to be taken most strongly against the grantor. It may be said that a conveyance of rent is merely a formal routine of conveyancers’ language. But this is without force — especially when the spirit of the whole deed is considered. i</p> <p>“ I have said that I had elaborated the inquiry as to whether the grantor was tenant for life. I do not reproduce that part of my discarded opinion here, for I am satisfied that it is immaterial whether he was or was not. If tenant for life, his deed expressly conveys the rent due at his death. If he had no freehold estate, then the rent cannot be apportioned under the statute. It is a question of scientific interest, whether the delivery of a deed operates as livery of seisin in Pennsylvania, in a conveyance like this; but as the question presented by the case stated is clearly with the plaintiffs for -the reasons given, it would be a mere parade of learning and industry to follow that line of thought. It is apparent that judgment must be entered for the plaintiffs.”</p> <p>Judgment was entered accordingly, and this entry was the error assigned.</p>

Certiorari sur appeal to the Court of Common Pleas of Adams county: Of May Term 1877, No. 185. Appeal by J. Ledyard Hodge from the decree of the court in the distribution of the proceeds of the estate of Emanuel Harmon. Harmon executed and delivered to trustees a mortgage on a property in Adams county, to secure the, payment of two hundred bonds, each for the sum of $500.

<p>Error to the Court of Common Pleas-of Dauphin county: Of May Term 1876, No. 103.</p> <p>Ejectment by W. S. Corpman against John Baccastow and Daniel Wagner, for a tract of seventy acres of land.</p> <p>The plaintiff claimed by virtue of a sheriff’s deed given to him in pursuance of a sale in April 1870, of the land in dispute, on a judgment obtained by Ballou & Scott, on the 18th of January 1869, against Jacob Corpman. It appeared that Jacob Corpman purchased the land on the 6th of April 1868, and on the same day he made a deed conveying the same to John Baccastow, for the consideration of $1740. The deed was recorded on the 9th of July 1868. It appeared also that, on the 23d of April 1868, Jacob Corpman and Baccastow entered into an agreement wherein it was stipulated, “ that if Corpman can pay to Baccastow $500, and the rent on April 1st 1869, he is to have possession, of said premises for another year on the same conditions, and so on from year to year until said Corpman has paid to said Baccastow the sum of $1740 and the rent, when said Baccastow shall reconvey said premises to said Corpman; * * * and should said Corpman fail and not comply with the agreement, and pay to said Baccastow $500, and the rent on the 1st of April next, the said Baccastow and his legal representatives shall have the privilege to sell said premises to the best advantage; and after deducting all arrears and backstanding of his claim and rent,, and all expenses of said sale, then the balance, if any, shall be paid to said Corpman or his legal representatives; * * * and said Corpman has the privilege to sell said property at any time within said year, by paying said Baccastow' his claim and rents.”</p> <p>This agreement was never recorded.</p> <p>At the trial, before Pearson, P. J., Baccastow testified that Oorpman failed to comply with this agreement, and he then sold the property to Wagner, who dispossessed Corpman.'</p> <p>J. Corpman testified that he had gotten $1740 from Baccastow, who agreed to take a mortgage upon the premises, and receive eight per cent, interest in the form of rent, and that the deed and agreement were both executed on the 23d of April 1868.</p> <p>The plaintiff’s first point was : — ■</p> <p>If the jury believe that the deed dated April 6th 1868, and the agreement dated April 23d 1868, were in point of fact executed at the same time then the deed and agreement constitute a mortgage, and not an absolute conveyance.</p> <p>Answer. “ The law is as stated in this point.”</p> <p>His third point was :—</p> <p>If the deed of April 6th 1868„ is found to be simply a mortgage then Jacob Corpman had such an interest in the land upon January 18th 1869, as would be bound by the judgment obtained against him un that day; and the sheriff’s sale under said judgment vested in the purchaser, the plaintiff in this case, the interest which Jacob Corpman had in the premises on the day the judgment was obtained, and just as it was upon the day the judgment was entered.</p> <p>Answer. “ At the time the judgment was obtaine'd under which the plaintiff claims title Jacob Corpman had an interest which was bound by the judgment, subject to the prior mortgage, which was an older lien. Had not a sale been made on the mortgage prior to the sale by the sheriff, that sale would have vested the equity of redemption in W. S. Corpman; but as the land was sold by the mortgage creditor in a method which we have decided to be legal, Jacob Corpman had no interest in the land at the time of the sheriff’s sale, and therefore W. S. Corpman took nothing by his purchase.”</p> <p>The verdict was for the defendants. The plaintiffs took this writ, and, inter alia, assigned for error the answer to his third point.</p>

<p>Error to the Court of Common Pleas of Dauiohin county: Of May Term 1877, No. 102.</p> <p>Amicable action by Francis Jordan and Geoi'ge W. Porter, assignees of the City Bank, against Martin Sharlock, in which the following case was stated for the opinion of the court:—</p> <p>'• “ 1. That the defendant had a running account of deposits in said City Bank, from 22d November 1875 to 6th September 1876, on which, at said last-mentioned date, there was a balance due to said defendant of $395.50.</p> <p>“ 2. That on the 13th day of June 1876 said defendant made, and had discounted at said bank, the following note, viz.:—</p> <p>“ ‘$350.00.</p> <p>Baldwin, June 13th 1876.</p> <p>“ ‘ Ninety days after date I promise to pay to the order of Samuel Witmer, three hundred and fifty dollars, at City Bank of Harrisburg, without defalcation, for value received.</p> <p>“ ‘ S. Witmer.</p> <p>(Signed) Martin Sharlock.’</p> <p>“ 3. That on the 7th of September 1876 the City Bank made an assignment of all its property and effects, including said note, to the plaintiff, in trust for the payment of debts, and said assignment was duly acknowledged and recorded the same day.</p> <p>“ 4. That said note was duly endorsed on the day of its date, by said Samuel Witmer ; and on its maturity, on tbe 14th day of September 1876, was duly protested for non-payment, the plaintiff refusing to allow the defendant a set-off, as claimed by him, for said deposit of $390.50, or any part thereof, in payment of said note, the assets of said bank being insufficient to pay the debts.</p> <p>“ 5. If, under these facts, the plaintiff is entitled to recover, then judgment to be entered for the plaintiff for said sum of $350, with interest thereon from the said 14th September 1876, with $2.10 costs of protest; and if the said plaintiff be not entitled to recover, then judgment for said defendant for the sum of $45.50, with interest thereon from said 14th September 1876.”</p> <p>The court, Henderson, A. L. J., delivered an opinion, inter alia, saying</p> <p>“ It is held in general, in this country, that when the consideration on which the debts in question were based, respectively, is mutual, the period at which they become due is immaterial. The better opinion would seem to be, that demands which were mutual in the lifetime of the parties may be set-off after their death, though not due when it happened, if they become due before action brought. And where the estate is insolvent — where, after suit is commenced by the administrator, the estate of his intestate is represented insolvent, the defendant may set off a note against the intestate which falls due pending the suit, though not due and payable when the action was commenced. And, again, where an estate is represented insolvent, all mutual demands of every nature and kind are to be set of, and the balance only is the debt due to the estate. In case of an insolvent estate, as there must be a final settlement of all demartds, it follows as a necessary consequence that a debitum in presentí, although not a debt due, is within the principle and may be set off: Bigelow v. Folger, 2 Metcalf 255. This may go further and seem inconsistent with the principle enunciated in Bosler v. Exchange Bank; but when we consider that insolvency is the shifting factor that disturbs the equilibrium of these cases, and that considerations of public policy enter into the solution of the cases in which ‘ the debt’ is a deposit in bank, we are constrained to think that the spirit and reason of the Pennsylvania. decisions are in accord with the general doctrine stated above: Murray v. Williamson, 3 Binn. 135; Stuart v. The Commonwealth, 8 Watts 74 ; Cramond v. Bank of the United States, 1 Binn. 64.”</p> <p>The court directed judgment to be entered in favor of the defendant, and the plaintiff took this writ, assigning this entry of judgment for error.</p>

<p>1. Two of the three makers of a note consented to a material alteration thereof after its execution. Judgment hy default was obtained against the non-consenting maker. In a suit by the holder of the note against the consenting parties, Held, that evidence of their consent to the alteration was admissible, provided the holder had no knowledge of the want of consent of the third maker.</p> <p>2. To show that the note as altered was what it should have been originally it was competent to prove a declaration made by the non-consenting maker that if the note had been properly drawn at first there would have been no trouble.</p> <p>3. Suit was originally brought against the three makers on the joint note. One only was served, against whom judgment by default was obtained. Subsequently the plaintiff issued an alias and pluries summons in the same suit against the other defendants, who appeared and made defence. Held, that these proceedings were irregular as the Act of 1830 does not contemplate a continuance of the original suit against the defendants on whom the original process had not been served.</p>

<p>Error to the Court of Common Pleas of Lebanon county: Of May Term 1877, No. 165.</p> <p>Debt by Rosenberger, Light & Co. against the Washington Mutifal Eire Insurance Company upon a policy, dated April 4th 1868, insuring in the sum of $5200 the foundry, outshops and machinery of the plaintiffs.</p> <p>At the trial, before Henderson, A. L. J., the plaintiffs gave in evidence the application and policy and proceeded to prove the loss, the demand for the insurance money and the refusal of the company to 'pay the same. This refusal the company averred was on the ground that an assessment had been laid upon tlio policy which was unpaid at the time the property was burned and still remained unpaid, and the plaintiffs having admitted these'facts the defendant asked for a nonsuit which the court refused.</p> <p>On behalf of the defence the following facts were then disclosed:—</p> <p>The defendant company was incorporated by Act of Assembly April 2d 1868, Pamph. L. 769.</p> <p>The fourth section of the act provides that all persons insured shall be members in accordance with its by-laws during the period for which they shall remain insured and no longer.</p> <p>The tenth by-law was :—</p> <p>“ AH assessments must be paid within sixty days after the occurrence of a fire. In case of refusal, or neglect to pay an assessment after the time specified, the person so refusing or neglecting, shall forfeit his policy and immediately cease being a member of this company. Provided, nevertheless, the said assessment on such defaulting member may be recovered by suit.”</p> <p>The application contained this clause: “For value received * * * I promise to pay the said company such sum or sums of money, and at such time' or times as the board of managers * * * may, for the purpose of paying losses by fire, &e., of said company, require — payable sixty days after notice and demand.”</p> <p>And also the following : “ It is agreed, if the company so elect, that by returning the aj)plieation of insurance, after giving due notice of the intention so to do, the insurance shall henceforth cease.”</p> <p>An assessment known as “ No." 5,” was made and notice thereof as follows sent to plaintiffs which they admitted was received.</p> <p>“ Lebanon, Pa., August 1st 1871.</p> <p>Mr.--. You are hereby notified that the Board of Managers of the company, has by resolution laid assessment No. 5, and that the amount assessed in your insurance in this company is $-, which you are requested to pay to J. PI. Miller, appointed receiver on-, the-day of September 1871, at the public house of--, in--, Lebanon county, Pa., between the hours of — and — o’clock.</p> <p>“, On all assessments not paid before the 1st of November next ten per cent, will be added and the insurance suspended until payment thereof is made.</p> <p>Signed Jacob Weidle, President.</p> <p>J. IP. Miller, Secretary.”</p> <p>The latter paragraph of this notice, it appeared was inserted by the secretary of the company without any authority from the company. This seemed to have been the only notice given to the plaintiffs.</p> <p>The property of the plaintiffs was burned on-the 27th of January 1872, and a day or two thereafter the plaintiffs 'offered to pay the assessment, which was refused by the secretary of the company on the ground that the policy was “forfeited or suspended.”</p> <p>Plaintiffs then alleged a waiver of the condition contained in by law No. 10, and offered to show that the company in its transactions with plaintiffs and other members previous to this fire treated said by law as a dead letter; that it was never enforced and prompt payments of assessments were never insisted upon ; that the plaintiffs called within a day or two after the fire and offered to pay assessment No. 5, which was refused; that the minutes of the company in evidence showed that it was the custom of the company to receive assessments from members after the time designated for their payment, as was seen by the fact that a penalty was fixed to pay for the collection of the same and that extensions had been granted for the payment of said assessments; that by an extract it would appear that on the 6th of January 1872, a collector was appointed to collect outstanding assessments, who was to collect ten per cent, from those in arrears for his services and who was to notify any members who refused to pay that their policies would be cancelled after the 15th of February following, and the outstanding assessments collected by law, and that at the time of the passage of this resolution of the 6th of January a number of members had not paid assessment No. 5, and that they afterwards came in and paid it and their policies continued and forfeiture was waived.</p> <p>The evidence under these offers was, in the main, admitted under objection, and exceptions were taken thereto.</p> <p>It was not shown that the notice required by the resolution of the 6th of January was given to plaintiffs.</p> <p>The plaintiffs presented a number of points, which in effect embraced these propositions : that the notices, resolutions and general conduct of the company towards those who neglected to pay assessments, showed that the company was not in the habit of enforcing the tenth by law, and that it was practically a dead letter; and secondly, that the failure of the company to declare the forfeiture of the plaintiff’s policy, as well as those of other delinquents, taken in connection with the notices and other acts of the company, misled the plaintiffs and induced them to believe that the prompt payment of assessments was not required, and that they were thereby lulled into a false security, and that the company was consequently estopped from setting up the tenth by law as a bar to plaintiff’s recovery.</p> <p>The points of defendant, in substance, were: that the contract of insurance between plaintiffs and defendant was one of mutuality, and aside from the tenth by law,' required the plaintiffs to pay, within the time specified, a lawful assessment for the loss of a co-member, as a condition precedent to recovery; that upon a neglect to pay an assessment when due, the relations of the parties are severed at the time of the loss ; that the assured were all members of the company, and acquainted with the mutual rights and liabilities under the charter and by laws, and that no act of the officers of the company could therefore mislead them ; and that in a mutual company the members are the agents of each other, and waiver cannot be predicated, and there was therefore no evidence to excuse the default of the plaintiffs.</p> <p>The court gave specific answers to these points of plaintiffs and defendant, the substance of which is contained in the following1 portion of the general charge :—</p> <p>“ Has this law, this tenth section of the by laws, become a dead letter by reason of its non-enforcement ? It is true there is no evidence that it was ever repealed or rescinded; but it does appear from the minutes, by the resolution and action of the board, both prior and subsequent to the plaintiffs becoming members, that it has not been enforced. And this is confirmed by the testimony of the secretary, who declares the fact that it was almost, if not altogether, the uniform practice of the company to ignore the existence o'f this article of the by laws.</p> <p>“ The action of the company must be uniform and just to all of its members. Besides this the article in question is in direct conflict with the terms of the contract of insurance. The contract was that they would come in, and must pay within sixty days after notice and demand. That is the measure of the rights and duties of the insured in the company. Now, while we are of the opinion that the company has the power to make by laws for the regulation of its affairs and the government of its members, and prescribe a course of forfeiture, yet we say to you that this 10th article of the by laws is not operative on this policy of insurance; that the contract of insurance contains terms substantially different, and is the measure of the rights, duties and responsibilities of the parties to it, and that the article does not stand in the way of plaintiffs' recovery in this action.</p> <p>“We instruct you that the plaintiff cannot recover the amount of his loss unless he has complied with his part of this agreement or excused his want of performance. In other words, he cannot enforce the performance of the contract in the policy and at the same time neglect or refuse to pay its consideration.</p> <p>“ Was there anything in the conduct of the Washington Mutual Eire Insurance Company, on the part of the company, was there anything done or spoken by its officers, or those having authority to speak for the company, that misled this plaintiff into the danger which threatened him at the time ? If there was, search the evidence closely, and you must be satisfied of that fact before you can find for the plaintiff. Was there anything shown that satisfied you that the plaintiffs were lulled into security, or misled to their injury by the defendants, so as to induce them to delay payment and rely upon an extension of time ? If you are satisfied from the evidence that the plaintiffs were thus misled, your verdict must be in their favor; otherwise, if you come to the conclusion that plaintiffs neglected to pay their assessment, were in default through their own negligence, the tender after the fire was too late, and you should find for defendants.</p> <p>“ They could not be misled by anything that occurred after the fire, and nothing could affect it at the time except an agreement on the part of the company. You must look to the evidence prior to that; was there anything done on the part of the company within the knowledge of the plaintiffs that induced them to rely on the action of the company; that misled them into the belief that it was not necessary to pay their assessment as they had stipulated in the terms of insurance ?</p> <p>“ The whole question, we think, turns upon this clause of the policy or contract of insurance. The section of the by laws has nothing at all to do with this case. So that you must take the contract or agreement on the part of the plaintiffs to pay their assessments within sixty days after notice and demand as the measure of their duties, and unless they were excused from the payment by the action of the company they cannot recover on this policy.”</p> <p>The verdict was for the plaintiffs for ¡§6641.25.</p> <p>After judgment the defendant took this Avrit, its assignments of error numbering tAventy-three, among Avhich were a number to the admission of the foregoing evidence, the answers to the points and the portions of the charge quoted.</p>

<p>Appeal from the Orphans’ Court of Dauphin county: Of May Term 1877, No. 201.</p> <p>Appeal of the Harrisburg National Bank from the decree of the court confirming the report of the auditor appointed to take testimony and report upon exceptions to the account of A. O. Hiester, administrator of Dr. R. Ross Roberts, deceased, which exceptions alleged that said administrator had failed to collect and charge himself with the amount of a policy of insurance upon the life of the decedent.</p> <p>The facts were these:—</p> <p>In February 1870, Dr. Roberts effected an insurance upon his life in the sum of $10,000, in the Manhattan Life Insurance Com pany of New York. The insurance was to be paid to his executors, administrators or assigns, within ninety days of the notice and satisfactory evidence of his death. On the 9th day of May 1871, Dr. Roberts assigned this policy to Messrs. Dougherty Bros. & Co., bankers, as collateral security for certain loans then made and to be made to him. Although the assignment was upon its face an absolute one, transferring to the assignees the title to the whole sum secured by the policy, the testimony of D. W. Seiler, a member of the banking firm, showed that it was designed by both parties simply as collateral security for advances theretofore made and to be made in the future to the decedent". Notice of the assignment was given by the assignee to the insurance company on the 17th of May 1871, and accepted by the company. Dr. Roberts died in April 1875, and about the 17th of the following August, Messrs. Dougherty Bros & Co., received from the insurance company the sum of $9339.33, which was the amount due on the policy, after deducting certain unpaid premium notes. The amount due to the banking firm by Dr. Roberts, at the time of his death, and for which they held the policy as collateral, was $2087.55, which being retained by them, left in their hands a balance of $7251.78, which constitutes the fund in dispute in this case, the administrator having failed to charge himself with it as so much of the assets of the estate.</p> <p>Some time after the death of Dr. Roberts, his father-in-law, the Hon. Samuel A. Foot, of Geneva, New Yoi’k, was appointed by the Surrogate Court of Ontario county, in that state, guardian of decedent’s minor children, they having before that time become residents of that county, where they still reside. In August 1875, the administrator, with his counsel, called at the banking house of Messrs. Dougherty Bros. & Co., to inquire about the life insurance policy, and were shown the assignment already referred to. At that time the assignees declined to say what they would do with the balance which remained in their hands, after paying their advancements, but said they would consult their counsel and let the administrator know their decision. In September following Judge Foot, the guardian, came on to Harrisburg, and seems to have claimed the fund from the assignees, for Judge Hiester testifies that he told him he had seen the Messrs. Dougherty Bros. & Co., and they had promised to pay him over the whole of the money if he would give them an indemnity. This being the position of affairs, the following agreement was entered into.</p> <p>“We, the subscribers, have this day deposited, to our joint credit in The Harrisburg National Bank, the sum of $7251.78, which we have agreed on compromise, ought, in our opinion, to be equally divided between us, as representatives of the creditors and children of R. Ross Roberts, deceased; and that we will ask Judge Pearson for an order approving such compromise and division, or such other division thereof as he with a full knowledge of the facts shall deem just. But in case he declines approving such compromise and division, or any other division thereof, that he shall then decide to which of the parties hereto the whole sum belongs ; it’being the fund arising from a policy of insurance upon the life of R. Ross Roberts, deceased, and assigned by him absolutely to Dougherty Bros. & Go., and which they claimed the right, under the assignment, of transferring to the children of R. Ross Roberts, deceased, and if they have the right to make such transfer, it shall be deemed to have been made.”</p> <p>This agreement was signed by the administrator and Judge Foot, a joint receipt and release given to them by the Messrs. Dougherty Bros. & Go., and the money paid over to them and deposited to their joint order in The Harrisburg National Bank, where it still remains. On the 8th of September 1875, a petition was signed by the administrator and the guardian, and presented to the Hon. John J. Pearson, President Judge, with a view of having him act upon the agreement already made, approve the compromise, if he deemed it legal, and if not, to decide to whom the fund belonged. Judge Pearson declined to accept the position of arbitrator between the parties. . Subsequently a petition was presented to the Court of Common Pleas of Dauphin county, sitting in equity, and after hearing, dismissed by the court on the ground that they had no jurisdiction. On an appeal taken by the guardian, the Supreme Court affirmed the decision of the court below.</p> <p>The administrator then filed his account but did not charge himself with the fund in bank. He however called the attention of the court to the sum and asked them to determine whether it belonged to the administrator or the guardian of the minor children.</p> <p>Exceptions were filed to this account by certain creditors of the decedent when it was referred to an auditor. The notice sent by the auditor to Judge Foot was returned by the latter with an endorsement thereon that he refused to receive or recognise it in any way.</p> <p>The auditor reported that the said sum of $7251.78 was a part of decedent’s estate, belonged to his creditors, and should have been paid over to the administrator, he having no right to agree that any portion of it should be paid to the guardian until all the debts due by his decedent should be discharged.</p> <p>He accordingly recommended that a decree be made by the court surcharging the administrator with the amount of said balance or sum of $7251.78, without interest, and that the 'Harrisburg National Bank be ordered to pay the said sum into the Orphans’ Court, to be distributed by the court among .the parties entitled thereto.</p> <p>The bank excepted to this report on the ground that the court had no jurisdiction over said moneys sufficient to protect the bank from suits and demands by the depositors in case it should pay over said moneys.</p> <p>The court, Pearson, P. J., overruled the exceptions, confirmed the report and made a decree adjudging the fund to belong to the administrator and making this further order:—</p> <p>“ That the Harrisburg National Bank pay the said money so deposited as aforesaid into this court, and that upon such payment the said bank be discharged from all further liability to Samuel A. Foot, guardian, or to any other claimant of the same or any part thereof; and'further order and decree that, upon payment of said money.into court, the same be paid over to the said, administrator for distribution according to law.”</p> <p>From this decree this appeal was taken.</p>

<p>Suicide is a question of intention, and where no direct evidence exists the question of intention is to be inferred from the circumstances and should be submitted to the jury.</p>

176. Case stated wherein the Second Presbyterian Church of Carlisle was plaintiff and Joseph A. Stuart and Abraham Bosler, executors of James Hamilton, deceased, were defendants. The facts as stated were these:— James Hamilton was a prominent communicant and member of the board of trustees of the Second Presbyterian Church of Carlisle, for forty years. He was one of its founders, and always took a deep interest in it.

<p>Appeal from the Orphans’ Court of Cumberland county: Of May Term 1877, No. 210.</p> <p>Appeal of James D. Miller, executor of David Ferguson, deceased, from the decree of the court confirming the report of the auditor, to whom had been referred the account of said executor. From the facts found by the auditor, F. E. Reltzhoover, it appeared that David Ferguson, who died in August 1872, was in his lifetime seised in severalty of a small tract of mountain land, and that he and his wife, Mary, were seised in entirety of a farm consisting of about 54 acres. He left surviving him his wife and three children and by his will gave his estate to his wife during life and after,her death to his children. James D. Miller, his son-in-law, was made executor and clothed with power to sell the real estate. In 1878 the widow and the executor contracted to sell and convey the two tracts of land to Daniel V. Ahl. Believing that the estate of David Ferguson still owned one-half the land which had been held jointly by the deceased and his wife, and ignorant of the fact that the wife was entitled to the whole tract by reason of survivorship, and acting under the advice of a county justice of the peace, the executor and the widow executed separate deeds, prepared by said justice, the deed of the widow conveying to Ahl an individual half in the farm for $952, and the deed of the executor conveying to him the mountain land and the other individual half for $1048, the mountain land being valued at $88.</p> <p>The widow died.in April 1875 and by her will gave all of her estate to James D. Miller and his wife. When Miller was about to file his account he was for the first time advised that the joint estate of the testator and wife, survived by the husband’s death to the wife and that the whole proceeds of the sale of the farm belonged to the wife’s estate. He accordingly filed an account in 'which he charged himself only with the assets of the estate of David Ferguson and did not include the proceeds of the sale of the undivided interest in the farm.</p> <p>Two of the children and devisees of David Ferguson contended that the executor ought to be surcharged with these proceeds, and the auditor, while he admitted that the wife became seised of the whole tract as the survivor of her husband, nevertheless, reported that he should be surcharged with the consideration money he received as executor of David Ferguson on two grounds, first, because he received, held and invested this money as executor, and was bound to account to the heirs for it and could not of his o.wn motion determine that this money which he received in his official capacity as the executor of one person should be handed over to the estate of another, and, second, that the wife could certainly refuse to take more than half of the land, and could assent to the conveyance of the other half by her husband before his death or by his legal representative after-wards ; that the husband died in 1872 leaving a will directing that all his real estate should he enjoyed by his wife during life, and at her death go to his heirs, and that he certainly believed he owned one-half of the farm; that on the 11th of March 1873, the widow made her will wherein she gave Miller her estate ; that three days after, on the 14th of March 1873, she made the deed to Ahl; that she lived until 1875, and during that time made no claim for the money in the executor's hands and that from these acts and her conduct it was manifest the widow intended that an undivided one-half only in the farm should pass by her will, and that, therefore, those who claimed through the wife were estopped from coming in upon these proceeds.</p> <p>The exceptions filed to this report were dismissed and the report confirmed, from which decree this appeal was taken.</p>

<p>Error to the Common Pleas of Mifflin county: Of May Term 1877, No. 21.</p> <p>This was an action of trespass on the case, brought by Joseph Snyder against The Glamorgan Iron Company, for damages alleged to have been sustained by plaintiff, in consequence of the negligent washing of defendant’s ore whereby the land of plaintiff was overflowed and a spring and a stream of water thereon were polluted.</p> <p>The facts are sufficiently stated in the opinion of this court.</p>

<p>Error to the Court of Common Pleas of Blair county: Of May Term 1876, No. 26.</p> <p>Ejectment by Abraham Rhodes against Sarah Wise, for a house and lot of ground.</p> <p>The plaintiff claimed as tenant by the curtesy and the defendant as devisee under the will of Mary Rhodes, the wife of plaintiff. Abraham Rhodes, it appeared, was an old and feeble man, and his wife devised the property in dispute together with the interest of her personal estate to the defendant, a widowed sister of the plaintiff, to be used by her in his support.</p> <p>The defendant contended that the plaintiff had elected to take under the will and to support this contention gave evidence to show, that he had induced defendant to leave, her home, remove her goods to the house, and that she had there nursed him for eight months, and expended her means in his maintenance; that during this time he accepted her services under the will and never complained of its terms or the treatment he received, and that he therefore was es-topped from setting up the claim here made.</p> <p>The verdict was for the plaintiff, and this writ was taken by the defendant.</p> <p>The other material facts and the fourth point submitted by defendants, with the substance of the reply of the court thereto, will be found in the opinion of this court.</p>

<p>Certiorari sur appeal from the Court of Common Pleas of Huntingdon county: Of May Term, 1877, No. 152.</p> <p>The proceedings in the court below were as follows :—</p> <p>J. Hall .Musser filed a bill in equity against J. R. Durborrow, which set forth in substance :—</p> <p>That on and prior to the 24th day of March 1873, J. R. Durborrow and John A. Nash, under the firm name of J. R. Durborrow & Co., were publishing The Huntingdon Journal newspaper, and were in possession of certain printing presses, types, stock, materials, &c., used in carrying on the same, the said Durborrow claiming in the same an undivided interest of seven-twelfths, and John A. Nash claiming the other five-twelfths ; that on the 25th March 1873, the interest of Durborrow in the same was levied in execution by the sheriff of Huntingdon county for the individual debt of J. R. Durborrow and sold to said Musser. Musser then leased'the property to Durborrow at an annual rental of $600 and agreed that if certain terms were complied with at the end of three years the property should be conveyed to Durborrow. The latter made default in the payment of the rent and as to the other terms of the agreement, and Musser then gave him written notice to surrender the property at the expiration of the lease, at which time he demanded possession and was refused. The bill therefore prayed for specific performance of this agreement and that defendant should deliver to complainant all the property and interest mentioned in the lease; that he be enjoined from selling or encumbering the property, and for a receiver.</p> <p>The defendant demurred to the whole bill, and the court overruled the demurrer and awarded a preliminary injunction.</p> <p>The defendant then filed an answer and the case was referred to a master, who suggested a decree that Durborrow be directed to pay to Musser $1972.46 with interest, or in default thereof to deliver up to Musser all the presses, types, &c., purchased by Musser as the interest of Durborrow, and the defendant meantime be enjoined from selling or encumbering said property.</p> <p>The court, Dean, P. J., overruled the defendant’s exceptions to the master’s report and confirmed the same.</p> <p>The plaintiff then made a.n affidavit of non-payment of the $1972.46, and caused to bo issued a writ of habere facias possessionem de bonis, with a fi. fa. for costs, to which the sheriff returned that he had demanded possession of Durborrow, who refused. Upon the petition of plaintiff a writ of assistance under a rule of the court and the allocatur of the president judge was issued, to which the sheriff made return as follows :—</p> <p>“ Executed the within writ by going with plaintiff to the printing office of J. R. Durborrow & Co., and then and there declaring to him, that I delivered to him the said plaintiff, all the interest of him the said plaintiff- in the presses, types, imposing stones, cases, racks, and all other printing material purchased by said J. Hall Musser at a sheriff’s sale on the 25th day of March 1873; and money made.”</p> <p>Defendant appealed, assigning for error the overruling of the demurrer and the confirmation of the master’s report.</p>

<p>Error to the Court of Common Pleas of Huntingdon county: Of May Term 1877, No. 99.</p> <p>Debt by James North and others, trading as the Union Bank of Huntingdon against W. II. Woods, endorser of the following note:—</p> <p>“ $377.</p> <p>Huntingdon, Pa., May 5th 1875. .</p> <p>Sixty days after date I promise to pay to the order of W. II. Woods at the Union Bank of Huntingdon, three hundred and seventy-seven dollars and five per cent, collection fee if not paid when due, without defalcation, value received.</p> <p>No. 14915. Due July 7th. Samuel Steeeey.”</p> <p>Endorsement — “W. H. Woods.”</p> <p>“I waive protest, demand and notice of non-payment on the within note, July 7th 1875.</p> <p>W. H. Woods.</p> <p>$7 paid on the within note July 30th 1875.”</p> <p>The defendant originally pleaded nil debet, to which he subsequently added the pleas of payment with leave, &c., and usury.</p> <p>Upon the trial, before Orvis, A. L. J., it appeared that the note in suit was the renewal of a note which had been originally discounted by the bank for the benefit of the drawer on the 28th of August 1871, and had been renewed from time to time thereafter. It was also in evidence that the note was first discounted at the instance of Woods, who was a" stockholder and director in the bank, and that upon the subsequent renewal the maker paid a discount in excess of the legal rate.</p> <p>The defence was that the note by reason of the insertion of the clause “and five per cent, collection fee, if not paid when due,” was not negotiable and therefore the defendant was not liable on his endorsement. The note was admitted in evidence under objection made on this ground.</p> <p>The defendant submitted the following points, to which are appended the answers of the court:—</p> <p>1. That under the evidence in this case the plaintiffs are not entitled to recover.</p> <p>Answer. “We refuse to instruct you as requested in this point, but instruct you directly the reverse, that they have a right to recover whatever may be due upon this debt.”</p> <p>2. That if the court refuse to instruct the jury as prayed for in the first point, then the defendant asks the court to instruct the jury that the defendant is not liable to pay the five per cent, for collection.</p> <p>Answer. “ We refuse to so instruct you. The contract in the note was, that if it was not paid at maturity, the maker, Steffey, would pay five per cent, additional for collection fee. And Mr. Woods endorsed that contract and made himself liable to pay it if Steffey did not.”</p> <p>In their general charge, the court, inter alia, said:—</p> <p>“ It is urged on part of the defendant that the addition of these words, ‘And five per cent, collection fee if not paid when due,’ destroys the negotiable character of this note, and relieves him from any liability upon it as an endorser. Objection was made to the admission of this note in evidence, and we now instruct you as matter of law, that the addition of these words does not destroy the negotiability of the note, and it does not release Mr. Woods, the defendant, from his liability as endorser upon it.”</p> <p>•The verdict was for the plaintiff for $306.98; and after judgment the defendant took this writ, assigning for error the admission of the note in evidence, the answers to his points, and the foregoing portion of the charge.</p>

. Certiorari to the Quarter Sessions of Mifflin county: Of May Term 1877, No. 110. Yiewers were appointed to lay out and extend Dorcas street in the borough of Lewistown, who reported in favor of said street and assessed the damages to George Blymyer at $333. Subsequently re-viewers were appointed whose report was adverse to said street. Upon petition of other citizens, re-re-viewers were appointed, who assessed the damages to Blymyer at $350.

<p>Error to the Court of Common Pleas of Blair county: Of May Term 1877, No. 120.</p> <p>The proceedings in the court below were these: The Pennsylvania Railroad petitioned the Court of Common Pleas for the appointment of viewers to assess the damages sustained by the construction of their road through the lands of Harrison Gorsuch, in pursuance of the Act of 27th of March 1848. On the 28th of January 1874, the court appointed said viewers, who on the 16th of March awarded Gorsuch, the claimant, $645 damages. Both parties filed exceptions, the claim'ant, on the ground that the viewers were appointed under the Act of Assembly incorporating the Pennsylvania Railroad and its supplements, wherein no appeal is provided, and that by reason thereof the act is unconstitutional and the appointment of the viewers void. On the 8th of April following, however, the claimant also appealed from the award of viewers. On the 16th of June 1874, the court overruled the exceptions, quashed the appeal of claimant and ordered judgment to be entered upon the award. Three days before, on the 13th of June 1874, an act entitled, “ An Act for further regulation of appeals from assessments of damages to owners of property taken for public use,” became a law, and on the 17th of June, the day after judgment had been entered by the court, the plaintiff entered an appeal, claiming the right to do so under this act, the provisions of which are as follows:—</p> <p>“ Sect. 1. That in all cases of damages assessed against any municipal or other corporation, or individual or individuals, invested with the privilege of taking private property for public use, for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, whether such assessment shall have been made by viewers or otherwise than upon a trial in court, and an appeal is not provided for or regulated by existing laws, an appeal may be taken by either party to the Court of Common Pleas of the proper county, within thirty days from the ascertainment of the damages, or the filing a report thereof in court, pursuant to any general or special act and not afterwards.</p> <p>“ Sect. 2. (This merely prescribes the requisites, such as affidavit, &c.)</p> <p>“ Sect. 3. That any party entitled to an appeal under the 8th section of the 16th article of the constitution, or who would be entitled to an appeal in any future case under this act, under the same circumstances, shall have the right to take an appeal from any assessment of damages, or re-assessment or ascertainment thereof as aforesaid, made or filed on or after the 1st day of January of the present year, and before the passage of this act; but such appeal shall be taken within thirty days after the passage of this act, and in conformity with the second section thereof.”</p> <p>The plaintiff assumed to take an appeal because the ■ assessment of damages was filed after 1st January 1874.</p> <p>The defendant obtained a rule to show cause why this appeal should not be stricken off, which after argument, on the 1st of September 1876, was discharged. The appeal having been allowed the plaintiff filed a statement of his claim as ordered by the court, and defendant pleaded specially that the Act of 1848, under which the viewers were appointed, made no provision for an appeal, and that when the judgment was entered on the 16th of June 1874 the plaintiff was concluded. The court overruled this plea and directed defendant to plead generally. The trial resulted in a verdict for $4200, upon which judgment was entered.</p> <p>The defendant then took this writ, assigning for error the action of the court in discharging the rule to strike off the appeal and in overruling defendant’s special plea.</p>

<p>Whether the presumption of payment arising from lapse of time is rebutted by a given state of facts is a question of law for the court.</p>

191. Assumpsit by A. McClain and Charles Andrews, trading as McClain & Andrews, against Mary A. Weston and J. J. Boyer, trading as J. J. Boyer & Co. Boyer was the lessee and keeper of a hotel owned by his sister-in-law, Mary Weston. The plaintiffs, who were butchers, supplied the hotel with meat, and when the bills had aggregated about $2000 demanded a settlement, the bills being made out as against J. J. Boyer & Co. Mrs. Weston denied the partnership and refused to pay them.

168. Case by Mary Decker against the Huntingdon and Broad Top Railroad and Coal Company, to recover damages for herself and children for the death of her husband, Adolphus Decker, who was killed in a collision on defendants’ railroad and whose death she alleged was occasioned by the negligence of defendant. • Decker was in the employ of the railroad as a locomotive engineer. His usual “run” was from Huntingdon south to Saxton.

<p>1. An ordinary county warrant drawn on the treasurer in payment of a debt is not per se a proper subject of an action.</p> <p>2. Such an instrument of writing in the form of a warrant and to be held as a voucher, may contain other matters which make it a contract and evidence of debt.</p> <p>3. Money lent bears interest even if the instrument which is the evidence of the debt does not so stipulate in express terms.</p>

220. This was an appeal, by the Overseers of the Poor of Eldred township, from an order of removal of Sarah Boyer, who had become chargeable to the poor district of the city of Williamsport. It appeared that Sarah was the wife of George Boyer, who owned real estate in Eldred township at and prior to the year 1867.

160. This was a proceeding upon a judgment wherein Henry White, to the use of the Savings Institution, was plaintiff, and William Crawford defendant.

<p>Error to the Court of Common Pleas of Lycoming county: Of May Term 1877, No. 111.</p> <p>Assumpsit by Adam C. Brown against the city of Williamsport, wherein the following case was stated for the opinion of the court:—</p> <p>The city of Williamsport was incorporated by an Act of Assembly of the 15th of January 1866.</p> <p>By a supplement to said act, approved the 22d day of March 1870, the authorities of said city were authorized “ to levy and assess upon the valuation of all taxable property for county purposes,” an amount not exceeding four per cent., in one year, for city purposes.</p> <p>On the 1st of April 1872, a further supplement to said act of incorporation was approved, which provided: “ That it shall be the duty of the assessor of the Seventh Ward of the city of Williams-port, immediately after the annual assessment in each year, to certify to the city council a list of the assessments of all lands in said ward which are used as farms, and from which no portion has been sold during the preceding year for the purpose of laying out building lots ; and it shall be the duty of the council in determining the rate of taxation for each year for city purposes to assess a tax on the lands embraced in the list aforesaid equal to one-third of the highest rate of taxes required to be assessed for the purpose aforesaid, for said year and no more, and all other real estate in said Seventh Ward a tax equal to ihree-fourths of the highest rate of taxes as aforesaid.”</p> <p>On the 3d of January 1876, the city council adopted the provisions of an Act of Assembly, approved the 23d day of May 1874, entitled “An act dividing the cities of this state into three classes,- * * * and providing for the incorporation and government of cities of the third class.”</p> <p>On the 4th of February 1876 the governor issued letters patent, whereby he certified the surrender of the former charter and the acceptance of the provisions of the aforesaid Act of Assembly, and declaring that from the date of such certificate the said city should be governed, controlled and regulated by and under the provisions of the aforesaid act.</p> <p>On the 1st of June 1876 an ordinance was passed by the city council, entitled an ordinance assessing city taxes for the year 1876, which said ordinance provides “ that there shall be assessed and levied for general revenue purposes, for the year 1876, ten mills on tbe dollar on the assessed valuation on all the real, personal and mixed property within the limits of said city, taxable according to the laws of the state of Pennsylvania,” and providing, in addition thereto, that “ there shall be assessed for the payment of loans to support the government of said city, and for making the necessary improvements therein, one per centum upon the assessed valuation on all persons, real and personal property, and all other matters and things within said city taxable for state and county purposes.” In addition to the foregoing provisions, the said ordinance provides that “there shall be levied upon the assessed valuation of the taxable property of said city, one mill upon the dollar of such valuation, to be called the sinking-fund tax, to be applied to the redemption of the .funded debt of said city.”</p> <p>The said ordinance further provides that “ there shall be levied and assessed, in addition to the amount above specified, on all taxable property within said city, five mills on the dollar of the valuation thereof, for the payment of interest on the funded debt of said city.”</p> <p>The plaintiff is the owner and occupant of fifty-two acres of land in the Seventh Ward of said city, used by him exclusively for farming purposes, “ and from which no portion has been sold during the preceding year for the purpose of laying out building lots.” This property was assessed for county purposes, for 'the year 1876, at the sum of $1472.</p> <p>By virtue of the above recited ordinance, the city authorities of the said city have levied, for general revenue purposes for the year 1876, the sum of $14.72 on the valuation of the land aforesaid; $14.72 for the payment of loans and making improvements in said city, $1.47 for the purposes of a sinking fund, and $7.36 for the payment of interest on the funded debt of said city; amounting in all to the sum of $38.27, being the uniform rate throughout said city-</p> <p>The said plaintiff has paid one-third of the taxes thus levied upon his property, to wit, $12.25, voluntarily, and the remaining two-thirds, to wit, the sum of $25.52 cents, the said plaintiff has paid to the city treasurer under protest, to prevent a levy and sale of his property.</p> <p>If the court should be of opinion that the full rate of taxation was illegally levied upon the said real estate of the plaintiff, then judgment to be entered in favor of the plaintiff for $25.52 and costs. If of a contrary opinion, then judgment to be entered in favor of the defendant for costs.</p> <p>The court, Gamble, P. J., entered judgment for the plaintiff in an opinion, inter alia, saying:—</p> <p>“ It is claimed, that inasmuch as this Act of 1872 is entitled a supplement to the charter of the city, it thus constituted a part of the same, and was surrendered and ceased to have any force or effect, upon the acceptance by the city-of the Act of the 23d of May 1874, commonly known as the ‘ Wallace law.’ Without stopping to inquire whether the Act of 1872 can bepropei-ly regarded as a part of the charter of the city, but granting for the present that it may be so considered, it must be shown to be inconsistent with the provisions of the Act of 1874, or else it is preserved by the express terms of the section providing for the acceptance of that law, and the surrender of the former charter. That section provides .that no such acceptance of the act shall be construed to be a repeal or surrender of any rights, powers, privileges and franchises, heretofore by law conferred on such city, not inconsistent with the provisions of this act.</p> <p>“ It is argued with force and ability that the special provisions of the Act of 1872, as noted in the ‘case stated,’ are inconsistent-with the first clause of the 20th section of the Act of 1874.</p> <p>“ There is no apparent inconsistency in the letter or spirit of these acts; the one specifies the maximum rate of taxation per annum on all real and personal property within the limits of the city, taxable according to the existing laws of the state: the valuation to be taken from the assessments under the provisions of law regulating the same. The other requires all the real estate of the Seventh Ward to be assessed and returned for taxation, with a certificate designating such lands as are used exclusively as farms, which shall be taxed at a rate equal to one-third of the highest rate of taxes to be assessed for city purposes for the current year. This is simply a mode or means of fixing a valuation on the farm land, for the purposes of taxation for city purposes, so as to cause the burden to bear an equitable and fair relation to the advantages derived from the city government. Such is the purpose of the Act of 1872, as declared in the preamble.</p> <p>“ Instead of repealing the existing laws regulating the mode of assessment, the Act of 1874 expressly provides that the valuation for the purposes of taxation shall be taken from the assessments made under existing laws regulating the same.”</p> <p>The entry of judgment for plaintiff was' the error assigned by the city.</p>

<p>Where a married woman joins her husband in a mortgage to encumber her separate estate, as to a bona fide mortgagee, for value, without notice of fraud or imposition in the procurement of the execution of such instrument, the certificate of the magistrate who takes the acknowledgment is conclusive of every material fact expressed therein.</p>

<p>Error to the Court of Common Pleas of Lycoming county : Of May Term 1877,' No. 119. _ ‘</p> <p>_ Assumpsit by Battles & Webster, against George Laudenslager on the following promissory note:—</p> <p>“ $238.40. Town of Jackson, county of Lycoming,</p> <p>State of Penn’a, October 19th 1871.</p> <p>Six months after,date I promise to pay to the order of D. C. Sullivan two-hundred and thirty-eight and 40-100 dollars for value received, without defalcation or stay of execution.</p> <p>Payable at my house. George Laudenslager.”</p> <p>Endorsed, “D. O. Sullivan.”</p> <p>The plaintiffs were bankers doing business in Girard, Pennsylvania, and the defendant a farmer residing at the place named in the note.</p> <p>At the trial before Gamble, P. J., the plaintiffs offered the note in evidence and rested.</p> <p>Defendants then made the following offer:—</p> <p>“ To prove that on the 14th of October 1871, one D. C. Sullivan came to the house of the defendant in Jackson township, Lycoming county, and stated to defendant that he wished to insure his buildings from loss by fire, which might occur in any way, at a much lower rate of insurance than he could obtain from other companies; that he was agent for the Girard Electrical Insurance Company of Girard, Erie county, Pa.; that if defendant would insure in that company, he would put lightning-rods on his buildings at the cost of the company, and that the whole expense of insurance to the defendant would be the annual interest on the cost of the lightning-rods, as the said rods were put up by the fire insurance company for their own protection and not for the benefit of the insured; that said company never insured unless they put lightning-rods on the buildiqgs, as more losses happened by lightning than by fire; that the defendant would never have to pay more than the interest on the cost of the lightning-rods for his insurance ; and that at the end of a year, if the defendant did not find the company good, and all that he represented to be true, he, Sullivan, would come around and take off the rods free of charge ; that Sullivan was accompanied by two men, and had a large wagon with the words ‘ Lightning-Rods’ conspicuously painted thereon; that he and his men put the lightning-rods on the house and barns of the defendant; and Sullivan then brought a paper to defendant and requested him to sign it, stating that it was merely a memorandum that he would pay the interest upon cost of the lightning-rods, and that he (Sullivan) would give him a paper that would ‘ kill the otherand that Sullivan then handed to this defendant a paper, of which the following is a copy :—</p> <p>“ ‘ For value received, I, the undersigned, agent of the U. S. Lightning-Rod Co., agree to deliver unto Geo. Laudenslager a policy of insurance of Girard, Erie Co., Pa., in accordance with the conditions stipulated in application for insurance this day taken by me, within thirty days from date of application, the said Geo. Laudenslager having this day given his obligation for $238.40, which amount is in full for insurance and lightning-rods this day placed upon buildings. Town of Jackson, county of Lycoming, state of Pennsylvania, this 19th day of October 1871.</p> <p>(Signed) D. C. Sullivan, Agent.’</p> <p>“ (Endorsed) ‘ It is further agreed by the said George Laudenslager, that he will pay, or cause to be paid, six per cent, interest on the amount of the within stated obligation, after maturity, interest to be paid annually at the said George Laudenslager’s house; and if he don’t find the company perfectly good, just as represented in application, I will take rods and insurance off free of charge.</p> <p>D. C. Sullivan.’</p> <p>“ That Sullivan then left, and a policy of insurance in the Girard Electrical Insurance Company of Girard, Erie county, Pa., was after-wards sent to defendant, insuring his barns against loss from fire by lightning only, and defendant neither saw nor heard from Sullivan again; but upon the 6th of September 1872, suit was brought against him upon the promissory note for $238.40, given in evidence by plaintiffs; that the signature to the note is in defendant’s handwriting, but Sullivan never read such a note to him, but pretended to read only an agreement to pay interest upon the cost of the lightning-rods and defendant did not know that he had signed said note until he was sued thereon; that the whole consideration of said note has failed, and defendant’s signature was obtained by the grossest fraud, and the lightning-rods are entirely worthless. Also, to prove that the plaintiffs are not bona fide holders for value of the said note, that Sullivan was formerly in the employment of Webster, one of the plaintiffs, in the lightning-rod business; that both of the plaintiffs resided at Girard, Erie county, Pa.; that neither of them had any acquaintance whatever with this defendant, never saw him nor heard of him, and he resided three hundred miles from the place of business of the plaintiffs.</p> <p>“Further, that both of the plaintiffs were, at the time this fraud was perpetrated and the said note was given, directors in the Girard Electrical Insurance Co. of Erie county, Pa.; that the character of Sullivan in 1871-2 was bad for' honesty and integrity, and this fact was well known to the plaintiffs; that he was totally insolvent during those years, and this fact the plaintiffs well knew; that the plaintiffs purchased at the same time a very large number of promissory notes of small amounts each, but amounting in the whole to $20,000, at a discount of 20 per cent, on each note; that all of these notes were purchased by plaintiffs from Sullivan, and this defendant’s note was among the rest; that neither the note on which suit has been brought, nor the others, were protested at maturity ; that the said note was payable at defendant’s house in Jackson township, Lycoming county, but ivas never presented there for payment until after maturity — all this for the purpose of proving a scheme concocted by the plaintiffs and Sullivan to cheat and defraud defendant and to obtain his signature to said note, and also to show that plaintiffs are not bona fide holders for value, without notice and in the usual course of business, of the note on which suit was brought.”</p> <p>The plaintiffs objected to this offer, for the following, among other, reasons:—</p> <p>1. Because the evidence proposed does not show such knowledge of the alleged fraud brought home to the plaintiffs as would constitute a defence to the note.</p> <p>2. There is no issue involving the character of Sullivan, and evidence of his character or reputation is, therefore, irrelevant.</p> <p>The court admitted the evidence, which was the first assignment of error.</p> <p>It appeared from the evidence under this offer that Sullivan had practised a gross fraud upon Laudenslager in procuring the note; that he represented himself as the agent of the insurance company, located at Girard; that he took the insurance in that capacity, and. thus consummated the fraud; that Laudenslager never made personal application for insurance, but it was made through Sullivan, and that the company ratified his agency by accepting the appliear tion and issuing a policy; that one of the parties plaintiff, Battles, was treasurer of this insurance company, and both were directors; that these plaintiffs, as bankers, had their office in the same building with the insurance company, a door opening from the one into the other; that, as bankers, they had taken $20,000 of similar notes to the one in suit; that these notes were not endorsed by one Crowell, to whom Sullivan alleged they belonged when he sold them to plaintiffs; that they had knowledge that Sullivan was irresponsible, one of the plaintiffs testifying that he knew Sullivan’s reputation was bad, and that he was “tricky.”</p> <p>There was other evidence as to the character of Sullivan.</p> <p>The plaintiffs submitted the following, among other points, to which are added the answers of the court:—</p> <p>2. The entire evidence in the cause does not show the plaintiffs to have had notice of the fraud alleged to-have been practised by D. C. Sullivan, nor that they are holders mala fide, and the plaintiffs are therefore entitled to recover.</p> <p>Answer. “ Declined, leaving the question of mala fides, on the part of the plaintiffs, as a question of fact for the jury, under all the evidence.”</p> <p>4. That, under all the evidence in the cause, there is no question of fact raised to be submitted to the jury. They must, therefore, under the law, find for the plaintiffs.</p> <p>Answer. “We decline to give you such instructions. We think there is evidence in the case proper to be submitted to you, and from that evidence it will become your duty to determine whether these parties are bona fide holders, innocent of all knowledge of this fraudulent transaction. If they are innocent holders, without any knowledge of this fraudulent transaction, .then they hold this note free from the fraud committed by Sullivan. But if they are not, and you believe from the evidence in the cause that they had knowledge of that fraud, then we think they are not bona fide holders, and that they ought not to recover. We submit it to you upon that question of fact.”</p> <p>The answers to these points constituted the ninth and tenth assignments of error.</p> <p>In their general charge, the court, inter alia, said: “ If there is any evidence at all in the case tending to show that the plaintiffs were connected with the original fraud, or that they had any knowledge of the original fraud, then they ought not to be permitted to avail themselves of this principle of law and come in and say, ‘ Because this is a negotiable paper and we hold it, we have a right to recover.’</p> <p>This portion of the charge constituted the second assignment of error.</p> <p>The verdict was for the defendant, and the plaintiffs took this writ, the assignments of error, inter alia, being those heretofore noted.</p>

<p>Error to the Court of Common Pleas of Lycoming county: Of May Term 1877, No. 150.</p> <p>This was a proceeding upon a judgment obtained by the Peoples’ Fire Insurance Company, against F. M. Hartshorne and M. L. Clay, doing business as F. M. Hartshorne & Co.</p> <p>Upon the 4th of May 1869, F. M. Hartshorne & Co. applied to the Cumberland Yalley Mutual Protection Company for an insurance upon their planing mill, valued at $12,000 ; upon machinery and belting therein valued at $8000, and upon worked and unworked lumber therein valued at $12,000. The term of their insurance was five years from May 4th 1869.</p> <p>Upon the 28th of May 1874, the Insurance Company, now known as “ The Peoples’ Fire Insurance Company,” entered a judgment against the defendants in error for $1800 upon the following premium note:—</p> <p>“ Eor value received in policy No. 18,088, I promise to pay to the Cumberland Valley Mutual Protection Company or their order, two thousand dollars, at such times and by such instalments as the board of directors of the said company shall from time to time demand and order, pursuant to the act of incorporation and rules and regulations of the said company, with interest from date at the rate of five per centum per annum, payable in advance, on the fourth day of May in each year, during the continuance of this risk. Witness our hands this 4th day of May 1869.</p> <p>F. M. Hartshorne & Co.” •</p> <p>The company claimed a lien upon a property situated on the west side of Campbell street in the city of Williamsport, consisting of a frame steam-power planing mill, one hundred and forty feet by seventy-two feet, machinery, belting, gearing and worked and unworked lumber therein.</p> <p>Upon the judgment thus entered the company issued a. fieri facias for the collection of the amount claimed by reason of unpaid assessments and interest on said note, claiming authority for these proceedings under the 6th section of the Act of April 13th 1838, Pamph. L. 364, which is as follows:—</p> <p>“And the company shall have a lien in the nature of a judgment, waiving the right of inquisition, upon all the said property of the insured to the amount of his deposite note, or so much thereof as may be unpaid, which shall continue until the amount of such note, with interest and costs of execution, if any, shall be paid or satisfied according to the provisions of this act: Provided, said company shall file, in the office of the prothonotary of county wherein such real estate shall lie, a memorandum of the name of the insured, a description of the property, the amount of the deposite note unpaid, and the term for which the insurance shall continue; and the prothonotary with whom the same shall be filed is hereby required forthwith to enter the same, without tax or fee, at large upon his judgment docket, and the same, when so entered, shall be deemed and taken to be, in all respects, as a judgment entered by confession upon a warrant of attorney, and execution may be had thereof for so much as by virtue of this act may be due and deman dable.”</p> <p>The writ of fieri facias was stayed, by order of the court below, on the 24th of August 1874, and a rule granted on the plaintiff to show cause why the judgment should not be opened and stricken off. Depositions were taken in support of this rule, and, after argument,.the court, on the 21st of February 1876, made the following decree:—</p> <p>“And now, to wit, February 21st 1876, rule to show cause why judgment should not be opened and defendants let into a defence, and also why said judgment should not be stricken off, made absolute.”</p> <p>The company took this writ, and alleged that .the court erred in making absolute the rule (1) to open the judgment, and (2) to strike off the judgment.</p>

<p>Appeal from the Court of Common Pleas of Warren county: In Equity. Of May Term 1877, No. 225.</p> <p>Appeal of Samantha Brown and Alexander Brown, her husband, in right of Samantha, from the decree of the court, dismissing, for want of jurisdiction, a bill filed by said parties setting forth the interest of said Samantha in the real estate of "which her late husband,' Hernán L. Brown, died seised, and praying for partition thereof.</p> <p>The facts are stated in the opinion of this court.</p>

<p>The provisions of the Act of the 16th of June 1836 which empower a sequestrator to take possession and assume the control and management of the property of a corporation are restricted by the Act of the 22d of April 1858, so as not to apply to an unfinished railroad. It was the design of the latter act to give to the sequestrator, as the representative of creditors, the earnings of the completed portion of the road, but to preserve the corporate property within the possession, management and control of the corporate officers.</p>

<p>1. What is a reasonable time within which to present a draft or bill for paynfent is a question of law to be determined by the court under the circumstances of the case.</p> <p>2. To purchase school bonds, W., on September 10th, sent a draft on J. O. & Co., making it payable to the order of “ School Board, Muncy.”_ The board at a special meeting on September 13th received the draft and in the absence of the treasurer ordered the bonds to be issued on payment of the draft. Upon his return, on the 16th, the draft was delivered to the treasurer after bank hours, and on the 17th was sent by him, properly endorsed, for collection, to his bank at W., eleven miles distant on the road to Philadelphia. On account of a delay in the mail the bank did not receive the draft until the evening of the 18th. On September 20th the draft was presented to J. O. & Co., in Philadelphia, for payment and protested, they having failed on the 18th of September. In a proceeding by mandamus to compel the issue of the bonds, Held, that the respondents were guilty of no laches in the presentation of the draft, and that the delay under these circumstances was not unreasonable.</p> <p>3. It is not free from doubt whether mandamus was the proper remedy, and it may well be questioned whether the board were authorized to purchase drafts or commercial ’paper and issue the bonds of the school district in payment therefor.</p>

<p>1. In opening Packer street, in the city of Williamsport, viewers were appointed. to assess damages and contributions to owners of land along said street. The street was opened upon the petition of the city. 0., through whose land it was opened, was the only party who appealed from the award. By the provisions of the Act of 22d of April 1856, under which the proceedings were had, all the other parties having acquiesced in the award, were concluded. After confirmation of the report of viewers by the Quarter Sessions, C. appealed, under the Act of 13th of June 1874, to the Common Pleas, who directed an issue to be framed, with C. as plaintiff and the city and the other owners along said street as defendants. Held, that the rights of these individual defendants had been adjusted by the report of the viewers, and the decree of the Quarter Sessions thereon, and their joinder as parties with the city, was a ground for reversal, had the question been properly raised.</p> <p>2. Where the direct tendency of evidence is to lead the minds of the jury into an irrelevant inquiry, it should be rejected.</p> <p>3. Under this issue one of the individual defendants was offered to prove a conversation with plaintiff in reference to the opening of said street, wherein plaintiff agreed that if defendant would not press the opening of another street to run east and west through the same land, the plaintiff would open Packer street at his own expense, and that in consequence defendant made certain improvements on his property and desisted from urging the opening of the street to run east and west. Held, that while this agreement would have been binding in a controversy between plaintiff and witness, it did not work an estoppel in favor of the city, unaccompanied as it was with any proof that the municipal authorities had done any work in pursuance of it, and that the offer, therefore, was clearly inapplicable to the actual issue.</p> <p>4. In estimating the damages sustained by the opening of a street the proper measure is the difference between what the property would bring in the market before the improvement, and what after the improvement was made, without reference to the purpose for which it may be used.</p>

<p>A. was employed-by S. to do certain work. S. agreed by parol to sell a lot of ground to A., the one-third of the price of the lot to be .applied in payment of the work to be done by A. No possession was taken of the lot, and no actual application of the one-third of the price was made upon the work done. When the work was completed S. tendered a deed and demanded a bond and mortgage for the two-thirds of the purchase-money, leaving the other third to stand as a credit. A. refused the deed or to allow the credit, on the ground that the lot was not of the width bargained for, and brought suit for work and labor done. Held, that to enforce this parol contract would be a violation of the Statute of Frauds.</p>

<p>1. Where lands are owned by two persons on the face of the deed of conveyance to them as tenants in common it is incompetent, whenever the rights of third persons are involved, to show by parol that they were held as partnership property.</p> <p>2. W. & S., who were partners, by agreement, sold certain lands in their individual names, without any reference to their acting as a partnership or to show that they held their interest in the lands as partners. Held, that the surviving partner cannot be allowed to change that condition by parol evidence so as to affect the right of any creditor who on the faith of it obtained a lien either upon that interest itself or the proceeds of. it in money.</p>

227. This was a proceeding for a mandamus commenced in the Court of Common Pleas of Lycoming county, and the venue changed to the Court of Common Pleas of Columbia county. The petition sets forth an ordinance of select and common council of the city of Williamsport of the dates of the 18th and 22d days of June 1868.

<p>Error to the Court of Common Pleas of Lycoming county: Of May Term 1877, No. 23.</p> <p>This was a feigned issue to try the validity of the will of William R. Yanderbelt, deceased, wherein Barbara J. Vanderbelt, his widow, and others were plaintiffs, and Thomas Myers and wife and others defendants. The contestants were the sisters of the deceased. William R. Vanderbelt died at the age of fifty-six, on the 31st of December 1873, leaving a will dated the 9th of January 1872. He left a widow but no children. His will, which was duly probated, was written and signed in pencil. There were no subscribing witnesses. It was in all respects properly drawn.</p> <p>The evidence at the trial disclosed the following facts:—</p> <p>That on the day of the date of the will the testator was in company with J. A. Borman and wife, Albert Eschenbach and D. S. Andrus, in a music store in Williamsport.' Andrus had been reading a Sunday School paper in which he had found the form of a will. A conversation occurred about the propriety of every person making a will, and acting upon a suggestion made, wills were prepared, by the several persons present, after the form found in the paper. The wills of the others were written in ink and had subscribing witnesses and all were written upon sheets of note paper. That of Mr. Vanderbelt was written in pencil, part by Mr. Andrus and the rest by Mr. Vanderbelt, and there were also a number of interlineations in pencil. Mr. Vanderbelt did not sign the instrument at the time, but subsequently signed it in pencil also and his signature was proven. Upon his return to his house on the day the will was made, he related to his wife what had taken place at the store and gave her the will to read, expressing the hope that she was satisfied. When he was taken sick he informed his wife that his will was in his coat pocket and desired her to have the coat carefully laid away. This was done and after his death the will was found in the side pocket of his coat where he was accustomed to carry his valuable papers.</p> <p>It was not disputed that the will was deliberately made, and that the disposition of his estate made by the testator was in accord with his declared intentions, and the only question really involved was whether the will thus written and signed in pencil was valid.</p> <p>At the trial the plaintiffs offered the will in evidence to which the defendants objected, 1. Because the whole paper writing offered is written in pencil; 2. Because it is not a writing within the meaning of the Act of April 1833; 3. Because the paper upon its face shows that it was a mere memorandum for a will and was not intended as a last will and testament, and the testimony of plaintiffs’ witnesses confirms this objection.</p> <p>Evidence admitted and bill sealed for defendants.</p> <p>The first point of defendants was: That the paper given in evidence by the plaintiffs, purporting to be the last will of William R. Vanderbelt, being written entirely with lead pencil, and being sighed and dated with lead pencil, is void as a testamentary disposition of property, and the verdict should be for the defendants.</p> <p>The court answered: “We decline to give you that instruction.”</p> <p>The third point was: That under all the evidence in the case, the verdict should be for the defendants.</p> <p>The court answered: “ That we think, involves a question of fact that we propose to submit to you; and we, therefore decline to say peremptorily to you that the verdict should be for the defendants, and we decline to say peremptorily that your verdict should be for the plaintiffs; because that would be ruling the case and taking it out of your hands entirely. We think there are questions of feet proper to be submitted to you for your consideration, and your verdict should depend upon how you find those facts to be.”</p> <p>The verdict was for plaintiffs, and the defendants took this writ, assigning for error the admission of the will in evidence, and the answers to defendants’ points.</p>

<p>1. Where the meaning of an agreement is doubtful, its terms are to be considered in the light thrown on them by proved or admitted illustrative facts. The situation in which the parties stand, the necessities for which they would naturally provide, the conveniences they would probably seek to secure and the circumstances and relations of the property in regard to which they have negotiated, are all elements in the interpretation of an ambiguous contract. The established usages of the trade or business to which the subject matter of the agreement belongs, and the general customs of the community in the conduct of that trade or business, are also to be kept in view.</p> <p>2. A. owned a large tract of timber land on the bead waters of Raccoon creek. The outlet for the lumber taken therefrom was either by hauling with teams or at times of high water by floating it down the channel of the creek,' which flowed into the Tionesta, where the lumber was rafted and thence floated to market. A. also owned certain lands and mills at the mouth of Raccoon creek, which he sold to B., reserving in the deed “the right of occupying the pond and shore above the Hall & Lacy Mills and the mouth of Raccoon creek, for the puroose of securing and holding lumber and timber taken from the property of A.” A. piled his lumber on the shore of the pond above the mouth of the creek preparatory to rafting, and B. brought an-action for use and occupation, contending that the reservation in the deed only gave to A. the right to moor his lumber in the stream and fasten it to the shore. Held, reversing the court below, that A. had the right to'pile his lumber on, the bank of the Tionesta, and raft it in the ponds above the mills.</p> <p>3. In the, commonly accepted use of the word the “ shore” of a river is the land adjacent to the water-line, and is applied in the same general sense in which the same term is popularly applied to the land adjacent to the water of an inland sea or to one of the great American lakes.</p> <p>4. In its primary and most familiar sense the word “ occupy” is the equivalent of the word “possess,” and implies a permanent tenure for a period of greater or less duration, and from the provisions of the reservation and the situation of the parties in this case it was manifestly their intent that A. should take possession of the bank to pile his lumber on, and the pond in which to prepare his rafts.</p>

<p>L Where a married woman has received full consideration for her assignment of a balance due her on a sale of her separate estate, and by her own act has disabled herself from restoring said consideration, equity will not permit her to repudiate the assignment on the ground that she had not acknowledged the same.</p> <p>2. K. and his wife, by articles of agreement, sold two lots, the separate property of the wife, to P., the purchase-money to be paid in annual instalments. E. conveyed to the wife of It. certain land, and in payment therefor took her assignment of the interest of It. and wife, under the articles of agreement with P. The assignment was not acknowledged by either It. or his wife. The latter sold the land conveyed to her by E., and received full consideration therefor. In an action by the administrator of E. to recover the balance due by P. under the articles of agreement, It. and his wife contested the claim on the ground that the assignment was not acknowledged. Held, reversing the court below, that they could not make such a defence.</p> <p>3. Moore v. Cornell, 18 P. F. Smith 320, distinguished.</p>

<p>1. Where one of the parties to a transaction is dead, the survivors cannot be permitted to testify to matters in relation thereto that occurred during the lifetime of the deceased.</p> <p>2. In ejectment A. claimed the land by virtue of a deed from the executor of Z., whose will empowered his executor to sell his real estate. Defendants claimed under B., who alleged that Z., in his lifetime verbally agreed to sell the land to 0., by whom the purchase-money was afterwards paid, and at whose request the deed was executed to B., the deed being delivered to C., to hold for B., until the purchase-money was paid. The deed to B., was endorsed on the deed whereby Z. had acquired title, and was found in the possession of the executor of Z. In the ejectment.trial the deposition of C. was offered to prove this parol agreement and the execution and delivery of the deed. Held, that he was sufficiently interested in the result of the suit to render him incompetent to testify to matters that occurred during the lifetime of Z., and that his testimony should have been excluded. Held, further, that B. was incompetent, for like reasons, to testify to the delivery of the deed, or to facts occurring in the lifetime of Z., from which its delivery might be inferred.</p> <p>3. In charging the jury as to what would unseat lands, the court in substance instructed them that actual abandonment of the improvement was not enough, unless the land remained deserted and abandoned for such a length of time as to “ grow over with brush and trees.” Held, that this requirement was too stringent, and that if the condition of the premises was such as to afford the most satisfactory evidence to the assessor that the improvements had been actually abandoned and the land permitted to assume its natural state it might properly be considered unseated.</p> <p>4. It seems also that if the clearing of the land over its line was accidental and without any intention of taking possession of the tract on which the clearing was done it would not have the effect of seating it.</p>

<p>In an action upon a judgment of the court of another state the record may be contradicted by evidence of facts impeaching the jurisdiction of the court, but where it is shown that the court had jurisdiction its judgment is conclusive and cannot be inquired into.</p>