Volume 85 — Pennsylvania State Reports

<p>Where a party, in a lawful manner, with the plaintiff's consent, interferes in an action of ejectment for the purpose of testing his own title and trying his own right of possession, the fact that he thus united with other defendants in the ejectment to maintain possession as against the title of the plaintiff, does not render him jointly liable with said defendants for mesne profits, when lie could not prevent the trespasses or did not aid, abet or encourage their commission. o</p>

<p>Appeal from the Court of Common Pleas of Northumberland county: In Equity, No. 79, May Term 1877.</p> <p>The bill was filed in this case October 22d 1868, by James Malone against The Shamokin Valley and Pottsville Railroad Company and the Northern Central Railway Company.</p> <p>The hill avers that Richard McGrann, Sr., Michael Barry, Richard McGrann and John J. Dougherty, on the 19th day of August 1852, made a contract with the Philadelphia and Sunbury Railroad Company to do all the work necessary to relay the track of the railroad from Sunbury to Shamokin, and also all the work of the extension of the railroad from Shamokin to a contemplated connection with the Minehill Railroad near Mt. Carmel; that it was agreed by plaintiff below and said parties, with the consent of the railroad company, that he should do a large part of the work which they were to do and should receive payment for said work from the company, and that he did a large amount of work and the company paid him in part, but left unpaid and due to him a large balance; that he brought suit to August Term 1859, No. 137, in the names of Richard McGrann et al., to his use, against the said railroad company, and having declared on the contract above referred to he obtained a judgment against the company on the 1st of November 1861, for $8693.33; that the company, in pursuance of power granted by an act of legislature referred to, made, on the 5th day of August 1852, a mortgage to Shepherd Knapp of its railroad from its terminus at Sunbury to its intersection with the Minehill and Schuylkill Railroad, with its corporate franchises and appurtenances, together with certain tracts of land; that this mortgage was made to secure bonds amounting to $700,000; that subsequently the company made another mortgage of its railroad property and franchises, dated July 23d 1855, to Joseph R. Priestley, to secure bonds amounting to $500,000; that before the execution of this mortgage the company was indebted to plaintiff for work in the sum of $8693.33, and the same, is still due, and that the last-mentioned mortgage was made without his knowledge or assent; that Priestley issued on said mortgage a scire facias to November Term 1857, obtained a judgment against the company for $575,688.82, issued a levari facias by virtue of w'hich their railroad property and franchises were, November 2d 1857, sold to Edward S. Whelen for $1500-; that Whelen purchased for certain bondholders, who were promoters of the Shamokin Valley and Pottsville Railroad Company, incorporated by an Act of Assembly approved March 25th 1858, and that Whelen conveyed, April 9th 1858, the railroad property and franchises so purchased to said new company; that this company had notice of plaintiff’s claim of action against the Philadelphia and Sunbury Railroad Company, and have been requested to pay the same, but have refused to do so; that the Northern Central Railway Company, one of the defendants, on the 27th of Eebruary 1863, leased from the Shamokin Valley and Pottsville Railroad Company the said railroad property for the term of nine hundred a,nd ninety-nine years, upon the payment of a certain annual rental: that the Philadelphia and Sunbury Railroad Company has become dissolved and cannot be made a party to this suit. The prayer of the bill is, that the mortgage to Priestley, the proceedings thereon and the conveyance of Whelen to the Shamokin Valley and Pottsville Railroad Company, be declared fraudulent and void as against plaintiff; that a sequestrator be appointed, who, after paying the interest on the first mortgage of the company’s expenses, shall pay plaintiff’s claim with interest, or that the Northern Central Railway, the lessee, shall pay out of the rental the plaintiff’s claim.</p> <p>The answer of the Shamokin Valley Railroad Company admits the execution of the contract for the work to be done by McGrann et al., but avers that defendants have no knowledge of the sub-contract with the plaintiff; it avers also that an action in covenant was brought by McGrann et al., to use of plaintiff', against the Philadelphia and Sunbury, now known as the Shamokin Valloy and Pottsville Railroad Company ; that the last-named company filed a plea that the agreement was not the deed of said last-named company; that no other plea was filed in the suit; that August 9th 1861, after a jury had been sworn, it was withdrawn from the jury and a judgment by default entered against the Philadelphia and Sunbury Railroad Conpany, and on the special plea of the Shamokin Valley and Pottsville Railroad Company, in favor of that company; that damages were subsequently assessed against the Philadelphia and Sun-bury Railroad. It admits the execution of the mortgage by the Philadelphia and Sunbury Railroad Company to Knapp to secure $700,000 of bonds, and also that of the mortgage to Priestley to secure $500,000 of bonds, and avers that the latter was duly authorized by law, and that the railroad property and franchises described in it had been vested in the Pottsville and Danville Railroad Company, a company organized under an Act of Assembly, passed April 8th 1826, to incorporate that company; that said property was sold by the sheriff of Northumberland county, December 28th 1850, and the sale was confirmed, and the purchasers, by virtue of the authority conferred upon them by law, organized a new company under the name of the Philadelphia and Sunbury Railroad Company; that by virtue of a certain Act of Assembly the said company was authorized to borrow money, issue bonds and secure the same by mortgage; that defendants do not know whether the said company, before or at the time of the execution of the mortgage to Priestley, was indebted to plaintiff'. The proceedings of foreclosure under the mortgage and the purchase by Whelen are admitted, but it is averred that Whelen, at the time of the purchase, had no notice of plaintiff’s claim, and that he acted for the bondholders, and subsequently, on March 25th 1858, an Act of Assembly was passed reciting said purchase and constituting the purchasers a new corporation under the name of Shamokin Valley and Pottsvillo Railroad Company, to -which company Whelen, by deed dated April 9th. 1858, conveyed the railroad and property purchased by him. Notice of the suit in which the company filed its plea is admitted, but it is denied that fit is liable to pay plaintiff’s claim, as it purchased the said railroad and property in good faith and without notice of it; that February 27th 1863 a lease of the railroad and property was made to the Northern Central Railway Company for nine hundred and ninety-nine years; that no cause of action has accrued against the company defendant within six years, and the Statute of Limitations is pleaded; that Barry, to whom McGrann, Sr., and Dougherty, two of the contractors, had assigned their interest under the contract, and McGrann, Jr., settled with and received from the company $25,000 of stock in settlement of their claim, and they executed a release of all claims against the Philadelphia and Sunbury Railroad Company; that at the time of the sheriff’s sale to Whelen no work was being done by plaintiff; that at this time the last-named company was in exclusive possession of the railroad and property; that plai ntiff had not brought suit and gave no notice of . his claim, and Whelen purchased without any knowledge of the same.</p> <p>The Northern Central Railway Company filed an answer, in which it is stated that it had no knowledge of plaintiff’s claim, and on February 27th 1863 it entered into a lease of the railroad and property with the Sham okin Valley and Pottsville Railroad Company, and it is now in possession of and operating the railroad, &c.</p> <p>William M. Rockefeller, Esq., was appointed master. He reported that the Philadelphia and Sunbury Railroad Company executed, August 5th 1852, its mortgage to secure bonds to the amount of $700,000 to Shepherd Knapp; that it made, August 19th 1852, a contract with McGrann et al. for work on the main line of the road; that it subsequently concluded to build a branch, known as the above, and requested McGrann et al. to do this work at the same prices mentioned in the original contract; that McGrann et al. gave plaintiff the work of completing the branch; with the knowledge of the company he did this work ; that there-was due plaintiff for this work a balance, for which he obtained a judgment against the company; that the work was commenced in 1852 or 1853 and finished in 1854; that the 23d day of July 1855 the company made its mortgage to Priestley to secure $500,000 of bonds; that proceedings of foreclosure were commenced on this mortgage and the property, November 2d 1857, sold to Whelen, who conveyed to Sham okin Valley and Pottsville Railroad Company, a company organized by the purchasers, represented by Whelen; that this company settled with Barry and McGrann for a balance due them, but this did not include the amount due plaintiff; that plaintiff brought suit, July 11th 1859, in the name of McGrann et al. to his use, against the Philadelphia and Sunbury Railroad Company, known by the name of the Sham okin Valley and Pottsville Railroad Company; that there was no appearance by the first-named company and the last-named company appeared by counsel and filed a plea, which was lost. The action was in covenant, and the plea was: the covenants were not the deed of the last-named company ; that the case having been withdrawn from the jury, a judgment by default was entered against the Philadelphia and Sunbury Railroad Company and in favor of the Shamokin Valley and Potts-ville Railroad Company on its plea, the court being of opinion that this company was not a party to the agreement sued on; that a lease was made February 27th 1863 to the Northern Central Railway Company ; that plaintiff never consented to the second mortgage given by the Philadelphia and Sunbury Railroad Company to Priestley and knew' nothing about it; that Whelen had no notice of plaintiff’s claim when he purchased the railroad.</p> <p>The master found that the plaintiff had no legal claim against the defendants below and was not entitled to the relief prayed for. Exceptions were filed to this report, and were dismissed August 19th 1872, and the report confirmed by a decree fro forma. An appeal was taken to the Supreme Court and this decree confirming the report reversed; Justice Sharswood delivering the following opinion:—</p> <p>“It is very plain upon the record that this case was not in a condition for a final hearing and decree in the court below. The Northern Central Railway Company wore merely formal but necessary parties. They were made parties — appeared specially by their solicitor — and a rule was taken and served upon them to answer; but as to them no further proceedings appear. The bill was not taken pro confesso as against them.</p> <p>“ The Shamokin Valley and Pottsville Railroad Company put in their answer, a replication was filed, and the case went to an examiner and master for proofs and a report. To make a final decree now', adverse even to the Shamokin Yalley and Pottsville Railroad Company alone, would not end the cause.</p> <p>“ It must be subject to the rights and equities of the Northern Central Railway Company. They would still have a right by coming in with an answer, to contest the liability of the Shamokin Company, under whom, as the bill charges, they came in as lessees, and are at present in possession of the road, as well as set up any equities of their own. The plaintiff- below was entitled to a decree pro confesso as against them, but he did not move for it, and the court below would, in all probability, have required notice of such a motion before entering the decree. Under the state of the record, all that can be done is to reverse and remit the cause to the court below' for further proceedings.”</p> <p>The record having been remitted (the former master having been elected a judge of the Court of Common Pleas of Northumberland county), ¡S. H. Ease, Esq., was appointed master, who reported the facts substantially as found by the first master, and concluded that by reason of the resolution of the General Assembly of 1843, in regard to the lien of contractors, the mortgage of the Philadelphia and Sunbury Railroad Company to Priestley, to secure bonds to the amount of $500,000, was void as to the plaintiff, and there was due him $15,777.04, and that a decree be made that the same be paid, and if not paid, that the railroad and property of the Shamokin Valley and Pottsville Railroad Company be sold to satisfy the same.</p> <p>This report was confirmed by the court below, and a decree made:—</p> <p>“That the sum of $15,774.04, with interest thereon from June 5th 1875 and costs, should be paid by the Shamokin Valley and Pottsville Railroad Company, and in default of payment thereof that the said sum of $15,774.04, with interest thereon -from the 5th day of June 1875, and costs, should be paid by the Northern Central Railway Company out of the rents and moneys covenanted and agreed to be paid by the said company to the Shamokin Valley and Pottsville Railroad Company, under the terms of the lease of the Shamokin Valley and Pottsville Railroad Company to the said the Northern Central Railway Company, dated the 27th day of February 1863, on or before the first day of March next, and that the said Northern Central Railway Company be thereupon discharged as against the said Shamokin Valley and Pottsville Railroad Company for the said sum or so much thereof as should be paid by the Northern Central Railway Company. And further, that upon the 1st of March next, in default in the payment of the said sum of $15,774.04, with interest thereon and costs as aforesaid, by the said Northern Central Railway Company, within the time aforesaid, then the real estate, property and franchises of the Shamokin Valley and Pottsville Railroad Company acquired under the proceedings upon a certain mortgage of the Philadelphia and Sun-bury Railroad Company to Joseph R. Priestley, trustee, dated the 23d day of July 1855, viz., the railroad of the said company from its terminus at Sunbury to its intersection with the extension of the Mine Hill and Schuylkill Haven Railroad as aforesaid, with its corporate franchises and appurtenances, together with its locomotive-engines and cars, and also all those seven several tracts of land situate, lying and being on the waters of Shamokin creek, in the counties of Northumberland and Montour, in the state of Pennsylvania, should be sold to pay the same, and a writ of fieri facias should issue to sell the same.”</p> <p>Defendants below appealed, and assigned the following errors: That the court erred in confirming the report; in declining to decide that the mortgage of the Philadelphia and Sunbury Railroad Company to Priestley was a valid mortgage, and that Whelen’s title under it was free and discharged from all iiens of contractors; in refusing to decide that the sheriff’s sale to Wheleti divested the lien for work done by a contractor; in refusing to decide that the release of McGrann and Barry operated as a release of plaintiff; in refusing to decide that the judgment in plaintiff’s suit, to August Term 1859, No. 137, was a bar to the bill filed by 1dm; in overruling the plea of the Statute of Limitations; in making the decree, because plaintiff had his remedy at law; and in not dismissing the plaintiff’s bill.</p>

<p>Error to the Court of Common Pleas of Columbia county: Of May Term 1877, No. 87.</p> <p>Ejectment by John H. Goodman against John Sanger, for a tract of land situate in Conyngham toAvnship in Columbia county, containing 400 acres. A Avarrant Avas issued January 10th 1794 to Johnston Besely for 400 acres in Northumberland county; a survey Avas made for this tract on the Catawissa creek, in that county, and on October. 16th of that year, a patent for the same Avas granted to Robert Morris. By virtue of an Act of Assembly the county of Columbia Avas, in September 1813, erected out of Northumberland county, and this land in controversy has since then been situate in Columbia county.</p> <p>By the act creating this last-named county, it was enacted that “all taxes or arrears of taxes laid or which have become due within the said county of Columbia before the passing of this act * * * shall be collected and recovered as if this act had not been passed.” The’ land in controversy was assessed in Northumberland county with taxes from 1796 to 1813, both inclusive. The .county taxes for the years from 1806 to 1813 inclusive and the road taxes for the years from 1805 to 1810 inclusive were not paid, and in 1816 the land was sold by the treasurer of Northumberland county, who, July 18th 1816, executed a deed for it to the commissioners of this county. This was after the erection of the county of Columbia. This land was subsequently assessed Avith taxes in Columbia county and sold by the treasurer of this county on June 11th 1838. It was‘redeemed by the commissioners of Northumberland county by the payment of the taxes, &c. The receipt for this payment was attached by a wafer to the deed that they had received from the treasurer of Northumberland county. Without exercising any other acts of ownership, the commissioners, in 1874, advertised and sold it to the plaintiff below for $10,000. His deed is dated July 1st 1874.. Defendant below was the tenant of D. B.' Eisher, Asa Packer, E. P. Wilber and Gideon Bast, who claimed under the warrant to Johnston Besely and the patent to Robert. Morris. No person was in possession until December 1871, when Eisher and his co-tenants commenced the erection of a house. They paid no taxes previous to June 10th 1868.</p> <p>The court below, Elwell, P. J., charged that there was no evidence that the taxes, in Northumberland county were paid; that the sale by the treasurer of that county to the commissioners Avas valid, and affirmed the following point:—</p> <p>“ That if the jury believe from the evidence, that the taxes were paid to the commissioners of Northumberland county after the sale of 1816, such payment would be a redemption from the sale, and in that case the plaintiff cannot recover.”</p> <p>And said: “If from tlie evidence the jury are satisfied that these taxes were paid after the sale, such payment would divest the title of Northumberland county acquired by the sale of 1816, whether a deed was endorsed upon the back of the treasurer’s deed to the commissioners of Northumberland county or not.”</p> <p>The court further charged :—</p> <p>“ I decline to charge that there is any legal presumption raised by the facts in the cause, that this land was redeemed from the sale of 1816. .But the undisputed facts that the commissioners of Northumberland county did no act of claim from the time of sale in 1816 to the sale made by them to the plaintiff in 1874 (except the redemption in 1840 from the sale of 1838), while the owners of the original title did the acts enumerated before on their part, together with all the evidence in the cause, may be taken into consideration by the jury, and if, from the evidence, they think the facts warrant them in so doing, they may presume, in favor of the purchasers of the original title, that the taxes were paid and the land redeemed. If, taking a natural and rational view of the whole subject, including the conduct of the parties, the payment of taxes, and every other circumstance, although there is no direct proof by witnesses, nor by papers executed, yet if the jury are satisfied, if their minds are convinced that the taxes were paid in redemption, they are at liberty so to find.”</p> <p>Verdict for defendant and judgment, and plaintiff below took this writ of error.</p>

<p>A protested draft is not an “ obligation” within the meaning of the proviso of the Act of 16th of April 1850, which declares that the assignees of an insolvent hank “ shall receive in payment of debts due to said bank its own notes and obligations and the checks of its depositors at par.”</p>

<p>Appeal from the decree of the Court of Common Pleas of Union county: Of May Term 1877, No. 113. In Equity.</p> <p>Bill in equity filed by Mark Halfpenny to restrain the Peoples’ Eire Insurance Company from the enforcement of a judgment entered in pursuance of the terms of a premium-note given by the complainant to effect an insurance in the defendant company on his frame woollen mill.</p> <p>The facts are stated in the opinion of this court, together with those which here follow.</p> <p>The lien was entered and filed December 24th 1873, by virtue of the following provision in the company’s charter:</p> <p>“ Sect. 6. And said company shall have a lien in the nature of a judgment, waiving the right of inquisition upon all of the said property of the insured, to the amount of his deposit note, or so much thereof as may be unpaid, which shall continue till the amount of such note, with interest and costs of execution, if any shall have been paid, or satisfied according to the provisions of this act: Provided, said company shall file in the office of the prothonotary of the county wherein such real estate shall he, a memorandum of the name of the individual insured, a description of the property, the amount of the deposit note unpaid, and the term for which the insurance shall continue; and the prothonotary with whom the same shall he filed is hereby required to enter the same, * * * and the same when so entered, shall be deemed and taken to he, in all respects, as a judgment upon confession, by virtue of a warrant of attorney, and execution may at any time be had thereof for so much as, by virtue of the provisions of this act may be due and demand-able ; hut the lien thereof shall commence with the filing of such memorandum in the office of the prothonotary: Provided, further, that such lien shall not be construed to take from such person insured, as aforesaid, the privileges of a freeholder. Act April 13th 1838, Pamph. L. 364-5.”</p> <p>In the eleventh paragraph of his hill the complainant alleged that “ No lien can be created, by virtue of sect. 6, aforesaid, except against property attached to and part of the freehold, that is to say, real estate. The property insured by this policy was personal property — the lien is on the property insured, which by the terms of the said section must be real estate; and even if the machinery and gearing were part of the real estate, it being machinery and gearing alone that were insured, there could be no lien entered and execution had against them alone, or against the real estate or buildings in which they were placed.”</p> <p>To this the defendant answered, “ That if a lien could not be had against anything hut real estate, yet there is nothing to prevent the defendants filing their lien and issuing an execution and levying upon the personal property of the defendant. The act providing for the filing of liens and the collection of assessments, does not provide a different and less speedy mode of collecting assessments from insurers of personal property, than from those insuring real estate. The mere fact that defendant has no realty, is no reason why a plaintiff cannot enter his judgment, and issue execution and make his money out of defendant’s personalty. Besides the limitation of the lien to the property insured by policy of insurance, would not prevent the collection of assessments from other property of the insured.”</p> <p>The master, to wfeom the case was referred, reported that in his opinion “ neither the destruction of the mill nor the alienation of the ground on which it stood discharged the plaintiff’s liability for his proportionable share of the losses occurring during the continuance of the policy, to wit, from July 9th 1864 to July 9th 1869: Foyce v. Leighton, 4 Foster (N. H.) 42; Bangs v. Scidmore, 24 Barb. (N. Y.) 29; Flanders on Ins. 24. But, while the plaintiff continues liable on his premium-note, and while the memorandum which constitutes a lion may be filed, even after the destruction of the buildings and the alienation of the ground, the property being real estate, and thereby determining the county in which lien is to be entered, yet the property having been alienated before the filing of the memorandum, and, by the express provisions of the act authorizing the lien, the lien only commencing with the filing of the memorandum, when so entered (while it could not ho a lien on that property, or any other), was to be deemed and taken to be in all respects, as a judgment entered upon confession by virtue of a warrant of attorney, and execution might at any time be had thereof, for so much as, by virtue of the provisions of the Act of 1888, may bo due and demand-able.”</p> <p>The exceptions filed to this report were dismissed and the report confirmed.</p> <p>From this decree this appeal was taken by the complainant, who alleged as error, inter alia, this construction of the section of the Act of Assembly giving the lien the force and effect of a judgment by confession.</p>

<p>In an issue framed under the Sheriffs’ Interpleader Aot, to try the title to certain goods, the verdict and judgment we re for the defendants. On an appeal to the Supreme Court the plaintiff and his sureties entered into a recognisance “ to prosecute his writ of error with effect, or in default thereof to pay the costs and condemnation money, with the costs of the writ of error.”</p> <p>The judgment was affirmed, and in an action on the recognisance, Held (reversing the court below), that the sureties were liable for the proper costs only and not for the value of the goods.</p>

<p>Error to the Court of Oyer and Terminer of FranJclin county: Of May Term 1877, No. 190.</p> <p>Indictment of Ralph L. Rolland and B. Johnston, for burglary and entering with intent to steal.</p> <p>The indictment contained three counts. The first tAvo charged the d'efendant with having committed a burglary in the dAvellinghouse of George R. Messersmith, on the night of the 24th day of March 1876. The third count was founded on the 2d section of the Act of 23d of April 1863, Purd. Dig. 353, Pamph. L. 195, and charged the defendant with having on that night entered the house of Mr. Messersmith with intent to commit a felony therein.</p> <p>The real estate was the property of the National Bank of Chambersburg. Mr. Messersmith Avas the cashier of the bank, and on the night in question, was living in the banking-house with his family and servants.</p> <p>This case was submitted to the Supreme Court on a former writ of error and reversed, a report of which will be found in 1 Norris 306, where the evidence is set forth more in detail. On this second trial, Johnston pleaded “not guilty” and was separately tried.</p> <p>It appeared at the trial, that Johnston and Rolland, about 8 o’clock of the night of the 24th of March 1876, went to the front door of Mr. Messersmith’s residence and rang the bell. The door was opened by Mr. Kindline, a brother-in-law of Messersmith, and a member of his household. Rolland inquired of Kindline if Messersmith Avas in, and being informed that he was not, expressed regret and introduced Johnston as his friend from New York, who had some business with Messersmith, and then remarked that perhaps they would call back later in the evening. They came back about twenty minutes afterwards, again rang the bell, which was answered by Kindline, who, opening the door, invited them to walk in and conducted them through the hall and dining-room into the office of Messersmith in the rear of and adjoining the banking-room. When they were ushered into the presence of Messersmith by Kindline he invited them to be seated, and after a friendly conversation of about half an hour, they made a violent assault upon Messersmith with a view of silencing him, so that they could consummate their intended purpose of robbing the bank. Messersmith made a desperate resistance and an alarm was given which frustrated their scheme. Rolland was captured in the yard of the bank building and Johnston about twenty miles from Chambersburg. Rolland and his wife had lived at a hotel in Cliambersburg for some months previous to the attempted robbery, and by their mode of life and genteel manners had established relations of confidence and intimacy with many persons of the town, among them Messersmith. The mode of obtaining admission to the bank in order to carry out their scheme is fully set forth in the testimony of Mr. Kindline, as detailed in the opinion of this court.</p> <p>The following points were presented by the defendant, to which are appended the answers of the court, Rowe, P. J.,</p> <p>3. If the jury believe from the evidence, that on the night of the 24th of March last, Rolland and Johnston went to Messersmith’s dwelling and rang the door-bell, and Kindline, a brother-in-law of Messersmith, and a member of his household, opened the door, and recognising Rolland as a friend and acquaintance of Messersmith, invited him and Johnston to walk into the house, and that this invitation wras then declined; and if the jury further believe, that after this invitation was given, Rolland inquired of Kindline if Messersmith was in, and upon being told that he was not, introduced Johnston to Kindline, remarking that ho had some business to transact with Messersmith, and that perhaps they w'ould call again; still all these facts, taken together, if believed by the jury, do not constitute such a fraud or trick on the part of Rolland and Johnston as would make the entry into the house, at that time, or at a subsequent time, on the same night, a constructive breaking.</p> <p>Ans. “I affirm the point, and answer that the facts therein set forth would not, in and of themselves, constitute a constructive breaking. I more readily affirm this point because Kindline testified that he invited them in when they first came, before any pretence of business, and that the pretence of business had no influence whatever upon him. In view of Kindline’s whole evidence it is clear that the pretence of business, or anything that was said on the occasion of the first call that night, was not the means by which the defendant obtained admission to the house. But a fraud or trick must not only be perpetrated for the purpose of gaining admission, but it must be the means by which the house was entered. I instruct you then, generally, that what occurred on the evening of the 24th of March, before the entrance into the house, did not amount of itself to a constructive breaking, because the Commonwealth’s evidence shows it was not the means of obtaining admission. This answer will be fully understood when we shall have answered the defendant’s next point.”</p> <p>4. If the jury believe from the evidence, that Rolland was a friend and acquaintance of Messersmith, and that Kindline knew this, and admitted him and Johnston into Messersmith’s dAvelling, on the night of the 24th of March, wholly on the strength of this friendship and acquaintance, and not on account of the pretence of business, if such pretence was made, then the entry of Rolland and Johnston was not a constructive breaking, and there can be no conviction of the prisoner for burglary.</p> <p>Ans. “ If there is not in this case any other evidence of fraud or trick than the pretence of business that night, when Kindline opened the door, this point would have to be affirmed, because that pretence would not be the means of admission, and I have already said, that the fraud or trick must have procured the entrance.</p> <p>“ But to affirm this point in this manner would be to present an inadequate view of the law of constructive breaking, as it arises on the facts of the case. The Supreme Court say, ‘ it is established by numerous authorities that there may be a constructive breaking. This may be done by an act in fraud of the law, or by fraud not carried on under cloak of legal process.’ And again, ‘ that a trick and fraud by means of which admission is obtained to the house is a constructive» breaking.’ And they have decided that the entrance need not follow immediately upon the trick, but it is sufficient if the entrance is referable to a previous trick intended to accomplish that result; that if fraud and artifice are used at a prior time for the purpose of gaining admission with intent to commit a felony, and the call which resulted in the admission is part of the same transaction, in pursuance of such previously formed design, then the entrance so effected by the previous fraud is a constructive breaking. Such I understand to be the principle of the decision.</p> <p>“ I instruct you, then, that if the calls made on the night of the attempt on the bank were in pursuance of and part of a series of frauds and tricks perpetrated by Rolland for the purpose of gaining admission to the bank, and the entry was the last link of a chain of fraudulent artifices intended to effect such entry, and without which such entry could not have been made, and that admission was in fact obtained by means of the whole system of fraud practised by the parties who then gained admission, this would be a constructive breaking. It would be an entry obtained by trick and fraud, only the fraud does not consist in a single act or transaction, but in a series of acts all tending to a common end.</p> <p>“ The Supreme Court says: 4 If admission was obtained by pretence of business, and that was a fraud, it is enough.’ But if this pretence was only part of a scheme to gain admission, of course the whole scheme would be sufficient, else a part would be greater than the whole. But the pretence of business may not itself have succeeded and been the means of admission, because the artifices used may have rendered that part of the scheme not necessary to admission. If, however, the whole scheme of fraud worked its purpose in putting the owner of the house off his guard, and in making him ready to admit the contrivers of the fraud when they presented themselves, and they presented themselves, continuing to use their artifices, and by this means gained admission to the house, it would be a constructive breaking.</p> <p>“If you believe that, long before the 24th of March 1876, Holland had conceived the idea of entering the Bank of Chambcrsburg with intent to rob or steal, and concocted a plan by which he might effect such purpose; that he cultivated the acquaintance of the cashier and placed himself on as familiar terms as ho could with him and his family, and began to talk to him of the buying of farms, and finally stated that he had a friend whom he wished to have come to Chambersburg to reside, and spoke of the Stouffer farm and thought it was too small, and on the night in question presented himself with a friend, who he stated had some business with the cashier; and if you believe this was false and fraudulent, and intended to obtain admission to the house, and that it was by means of this that Rolland and Johnston did in fact obtain admission into the house, then this was such a fraud as amounted to a constructive breaking. If Rolland, by frauds and tricks and artifices, deceived the cashier, and induced him to believe that he was concerned to buy a farm for a friend, and that if he would call at his house with such a friend it would bo for that purpose, and that it was thus that he was received into the house and the whole household was so deceived, and Kindline opened the door under the influence of Holland’s deceptions as to his true character and purposes, it was a constructive breaking.”</p> <p>5. In order to convict the prisoner of burglary, the entrance of Rolland and him into the house must have been procured by a trick or a fraud; and if the jury believe from the evidence that Kindline would have admitted them without any trick or pretence of business, and that their entrance was obtained not by such means, but because of Kindline’s acquaintance with Holland and his knowledge of the friendship between him and Messersmith, then the entry of Holland and Johnston was not burglarious or a constructive breaking, and the prisoner cannot be convicted of burglary.</p> <p>Ans. “ I affirm this point, unless you believe that such acquaintance of Kindline and friendship of Messersmith were procured by fraud and trick and as a means of entry, as I have instructed you in the preceding point.”</p> <p>6. If the jury believe from the evidence that there was a pretence made by Rolland of business with Messersmith on the occasion of the first call, as testified to by Kindline, and no entry was then made, and that about twenty minutes afterwards, without any pretence of business, Kindline admitted Rolland and Johnston, and that he did so wholly uninfluenced by and without regard to the previous pretence of business, then the entry of Rolland and Johnston was not burglarious or a constructive breaking, and the prisoner cannot be convicted of burglary.</p> <p>Ans. “ This point, relating as it does only to the pretence of business on the night of the 24th of March, is affirmed. I have said that what occurred that night would not constitute a breaking; but that if you find it to be only part of a scheme of fraud, a series of artifices, and that such scheme of fraud, the total of all the artifices used, was the means of obtaining admission, it would be constructive breaking. There is no burglary in this case, unless there was constructive breaking by fraud, and there was no such fraud at the time of the entry as by itself wrnuld make constructive breaking; but there is evidence of fraudulent practices by Rolland running over a considerable period of time, and it is for you to say whether the entry was effected by the whole of such practices, continuing down to the time of entry. If, notwithstanding you should find such acts and practices as I have referred to, you should be of the. opinion that they did not procure the admission, but that it was the genteel manners and agreeable conversation of Rolland that did it, and not at all the practices, then it would not be a constructive breaking.”</p> <p>The court, in their general charge, said, “ A question then arises, whether, if the call at Messersmith’s house, when they obtained admission, was with the same design and part of the same transaction with the previous call on the same evening, and if that previous call was for the purpose of gaining admittance by fraud and artifice, namely, under pretence of business, with intent to commit a felony in the house; and if these acts and this pretence of business were part of a larger scheme of fraud devised by Rolland and carried on for a long time, with the design of deceiving the cashier of the bank, as to his true character and purposes, and of thus securing his confidence and that of the members of his family, with the purpose and object, by this means, ultimately to obtain admission to the house of the cashier and steal the moneys of the bank; and the sum total of the fraudulent practices was the means whereby admission was obtained to the house, though the last trick of the series was ineffectual because unnecessary, whether an admission so procured would be a constructive breaking, and I instruct you that it would be such.</p> <p>“ If Johnston, the prisoner here, was the man that entered the bank with Holland, and the calls that night were the last steps in the fraud used to procure entrance, then Johnston is responsible for all that Rolland did to gain entrance, for his every falsehood and device directed to this object. And the tricks played on Messersmith, if through him they affected Kindline, would bo the same as if practised on Kindline himself. There is no difficulty on this score.</p> <p>“ Would Kindlino have admitted these two men into the bank building that night if he had not learned in Messersmith’s family to regard Rolland as an acquaintance of Messersmith, held by him in estimation ? If lie would not, then their admission is to be attributed to Messorsmith’s opinion of the character and purposes of Rolland. And if he (Messersmith) believed Rolland to be an honest man, contemplating the purchase of a farm and with like objects in view, and that his purpose in coming to his house was honest and to facilitate such objects, when in fact he was a villain conspiring to rob the bank and coming to Messorsmith’s house for that purpose; and if Messersmith’s belief was produced by the fraud, artifices and tricks of Rolland, intended to deceive him in relation to Holland’s true character and purposes, and thus to enable him to gain admittance to the house in the execution of his design to rob it, then it was the fraud of Rolland that induced Kindline to open the door,</p> <p>“ It is claimed by the Commonwealth that the testimony of Messorsmith and Kindlino shows that Holland’s whole intercourse with Messersmith from the beginning was one continuous fraud and deception ; that the pretence that he had packages of valuables that needed to be kept securely in bank was a trick; and the pretence that he was interested in farms in the vicinity as a possible purchaser for himself or his friends; and the pretence that he had friends whom he wished to settle at Ohambersburg were tricks; and that this scheme of deceit was kept up until the evening of the attempt on the bank and practised at the first call of Rolland and Johnston in the pretence that the call was on business. Messersmith says he was not warned as to Holland’s true character, but heard doubts about him, and the Commonwealth may argue that he was prevented from making inquiry by these alleged decejffions and artifices of Rolland.</p> <p>“ The Commonwealth insists that it was this fraud and artifice of Rolland in its totality which induced Kindline to let him and Johnston in.</p> <p>“ But the defendant’s counsel have endeavored to point out a state of intimacy between Rolland on the one side and Messersmith, and to show that the latter was attracted by the genteel manners and cultivated conversation of Rolland, and that it was these that opened the door to him and not any fraud or trick practised to that end. If the entry is to be referred to such reasons of course it was not a constructive breaking. If it is to be referred to the fraud and trick continued and practised up to the admission on the night in question, it would be a constructive breaking.”</p> <p>In referring to the charge of entering without breaking, under the third count of the indictment, the court, after commenting upon the evidence, said: “ The Commonwealth claims that evidence can establish nothing, if this evidence will not establish the facts alleged in the third count, and I cannot for my part see how the jury can hesitate a moment to convict the prisoner at the bar on the third count.”</p> <p>The verdict of the jury was not guilty of the burglary charged in the first count of the indictment, but guilty of the felony and burglary charged in the second count, and guilty of the felony in entering the dwelling-house with intent feloniously to steal charged in the third count.</p> <p>A motion for a new trial was overruled on the 12th of December 1876, and on. that day the court sentenced the prisoner, under the second count, to imprisonment in solitary confinement for six years and four months from the 12th of December 1876, and under the third count to an imprisonment in solitary confinement, at labor, for three years and ten months, to commence from the same date, 12th of December 1876.</p> <p>Defendant took this writ, the errors assigned being from one to five inclusive, the answers to defendant’s points, and that portion of the charge bearing thereon; sixth, that portion of the charge upon the evidence under the third count; and seventh, the sentence of the court.</p>

<p>1. To open the inner door of a dwelling house, at night, with the intent to commit a felony in the house, is an actual breaking and will sustain an indictment for burglary, and it matters not whether the felony is to be committed in ' the particular room into which this inner door opens, or in another part of the house.</p> <p>2. Per Paxson, J.: We do not think the Act of April 22d 1863, sect. 2, Pamph. L. 531, was intended to apply to or affeot the offence of burglary at common law, but to define and punish a new offence, unknown to the common law, yet partaking of the nature of burglary, viz. : breaking and entering by day, and entering by day or by night without breaking; and also to apply to a class of buildings which are not the subject of common law burglary, and that it was to such buildings only that the words “with or” in the Act of 1863 have reference.</p>

217. This was a scire facias quare exeeutionem non sur judgment. The Caledonia Iron, Land and Railroad Company was incorporated March 22d 1867, and changed its name on April 30th 1869 to the Southern Pennsylvania Iron and Railroad Company. On March 1st 1870 it made a mortgage to J. Edgar Thomson and Frederick Watts, as trustees, to secure $625,000 of bonds, and on September 1st 1870 made a second mortgage to John Rice, as trustee, to secure $200,000 of bonds.

<p>Appeal from the Court of Common Pleas of Franklin county: Of May Term 1877, No. 229.</p> <p>This was an appeal by Joseph M. Means and others, stockholders of the Farmers’ & Mechanics’ Bank of Shippensburg, Pa., an insolvent corporation, from a decree making them liable for the debts of the bank.</p> <p>The bill was filed by Jonathan A. West for himself and other creditors of the hank against Joseph M. Means and a large number of stockholders, and averred as follows: The incorporation of the bank by an act of the legislature, approved April 11th 1862 ; the fact that the defendants w'ere stockholders of the. hank ; the voluntary assignment of the bank to John P. Bhoads and Samuel S. Shryock, dated May 4th 1875; the certificate of deposit of plaintiff West for $400; the demand for its payment, and the refusal to pay it; the act of the legislature, approved April 11th 1862, providing that stockholders shall be fully and severally liable to the creditors of banks. The bill prayed for an account of the debts due by the bank, the liability of defendants for such debts, and general relief.</p> <p>The defendants filed pleas and demurred and averred that the causes of action occurred in Cumberland and not in Franklin county; that in certain proceedings in the Court of Common Pleas of Cumberland county an assignment was made by the bank on the 4th of May 1875, to John P. Rhoads and Samuel S. Shryock; that auditors were appointed by said court to examine into the affairs of the bank, and that by reason of such proceedings said court has exclusive jurisdiction over the matter alleged in the bill and that the remedy by scire facias prescribed by the 33d section of the Act approved April 16th 1850, is the exclusive remedy to be pursued by plaintiffs; that the bill is defective in that all the stockholders are not made parties defendant; that there is a complete and adequate remedy at law and that no case for an account is stated.</p> <p>The court below (Rowe, P. J.) overruled the demurrers, and the defendants with leave of court filed separate answers. Examiners' were appointed and took a large amount of testimony. A master was then appointed and reported in favor of plaintiffs. The report was confirmed and a decree made against defendants, but as the bill is dismissed for want of jurisdiction, the reporter has not deemed it necessary to state an abstract of the answers, of the examiner’s and master’s reports.</p>

<p>1. To submit a ease to the jury there must be evidence of such a character that the mind may reasonably rest upon it, though it may be with some hesitation. A jury ought never to be left to mere conjecture, where sympathy or some other equally improper motive will be sure to turn the scale. It is not too much to insist that there shall be evidence of circumstances on which the conclusion asked for may be reasonably predicated.</p> <p>2. Where the verdict for the plaintiff would have been without sufficient evidence to sustain it the court was right in taking the case from the jury.</p>

<p>Appeal from the decree of the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1877, No. 225. Certilled from the Eastern District.</p> <p>This was a bill in equity, filed by Henry Reed and Charlotte F., his wife, late Charlotte E. Foster, against George B. Roberts and others, administrators c. t. a., and trustees of the estate of J. Edgar Thomson, deceased.</p> <p>The late J. Edgar Thomson having in his lifetime become the purchaser of two thousand shares of the stock of the “ Pennsylvania Company,” of the value of $100,000, caused the said shares to be transferred on the books of the company to Miss Charlotte E. Foster, the plaintiff in this case. The certificates were made out in her name, and retained in the possession of Mr. Thomson, where they were found after his death, enclosed in an envelope, which was superscribed in his own handwriting, “ J. Edgar Thomson,” and in one corner of the envelope, also in his handwriting, the words, “ Miss C. E. Foster.” The certificates bear date April 1st 1874. Mr. Thomson died May 27th 1874, leaving no child or lineal descendants. His personal estate was inventoried at $1,222,406.04, besides which he left real estate valued at $300,000. Miss Foster was an orphan niece of Mr. Thomson’s wife. At his request she came to reside in his family when she was under fourteen years of age, and continued to reside with him until the time of his death, being treated by him (as is alleged in the bill and not denied in the answer) as his own child, and with the greatest tenderness and affection. On the 20th of December 1871, Mr. Thomson made his will, by which he gave and bequeathed his real and personal estate to trustees for charitable uses, first, however, reserving out of the proceeds so much as his “ beloved wife may deem necessary for the maintenance of herself and his dear niece, Charlotte F. Foster,” and certain other sums for the payment of legacies bequeathed by his will. On the 24th of May 1874, he made a codicil to his will, in which he declared: “I desire my dear niece, Lottie Foster, but to whom I cherish the feelings of a father, to be so treated and regarded in the law as if she were really my child, receiving, during her lifetime, such income from my estate as if she were really my child, and I postpone the operation of the trusts of my will, so as fully to effect this result, until her decease, upon which event they are further to take full effect, as expressed in the will.” On the 26th of May 1874, he added another codicil, in which he declared as follows : “ The codicil which I added to my will the other night (May 24th) means that T wish my niece, Charlotte F. Foster, to be considered as my daughter, and to take out of the income of my estate all that she requires to render her more than comfortable in her housekeeping during her lifetime. I do not desire to postpone by it the operation of the trusts of my will except so far as may be necessary to secure the above object.”</p> <p>No dividends were paid upon the stock in the interval elapsing betw'eon the date of the transfer of the stock to the plaintiff and the date of Mr. Thomson’s decease. In the year 1874, the two thousand shares of the Pennsylvania Company, transferred by Mr. Thomson to the plaintiff', were, by the assent of all parties, exchanged for an equivalent amount, at par, in the 7 per cent, mortgage-bonds of the Pittsburgh, Cincinnati & St. Louis Railway Company, the plaintiff executing, on the 7th of October 1874, a power of attorney for the transfer of the stock, in order to facilitate the exchange.</p> <p>The bill averred that said shares of stock were a present, immediate, executed gift from Mr. Thomson to his niece, as an expression of his parental feelings towards her, and that the bonds into which said stock was converted were her individual property and did not belong to the estate of decedent.</p> <p>It prayed therefore that the defendants be required to deliver said bonds to her, and to account for the dividends received on said stock and bonds.</p> <p>The answer of defendants admitted, in effect, the facts alleged in the bill and averred that respondents did not know for what purpose the certificates of stock were transferred to the name of Miss Foster in the manner described in the bill — whether the testator intended that they should thus be held for his own convenience, and then transferred to himself, or whether he intended to make a gift of them to her ; and the respondents leave these questions to the determination of the court; but they deem it proper, under the advice which they have received from their counsel, to submit that if it could be shown to have been Mr. Thomson’s intention, in causing the certificates to be made out in the name of Miss Foster, to make a gift of the stocks to her, she was not informed of such an intention on his part, and no delivery of the same was made to her, but he appears to have retained them in his own custody and possession, and under his own exclusive control; that in point of fact and law the purpose now imputed to him was not carried out, and that the certificates remained his own property, and became that of his estate.</p> <p>The answer also averred that there were a number of pending and undetermined claims against the decedent’s estate, which aggregated about a million of dollars, the result of some of which could not be foretold.</p> <p>The case was heard before Thayer, P. J., and Briggs, J., the former delivering the following opinion :—</p> <p>“ The question to be decided is, whether the mortgage-bonds of the railway company, into which the shares of the Pennsylvania Company were converted, belong to the plaintiff or to the estate of Mr. Thomson ? Of course the ownership of the bonds follows the ownership of the shares. • If the shares were the property of the plaintiff, the bonds unquestionably belong to her, and she is entitled to the relief prayed for.</p> <p>“ It is to be observed at the outset that here was a complete, perfect and absolute transfer of the legal title to Miss Poster. The shares were transferred to her on the books of the company, by direction of the owner, and new certificates were taken out. in her name. The plaintiff stands in no need of legal or equitable remedies to complete her legal title. The only relief which she needs and prays for, is that her title be relieved from the claims of the administrators and trustees of Mr. Thomson’s estate, and that the bonds into which the shares were converted by her own agency, be surrendered to her. It is not the case, therefore, of an incomplete voluntary gift, or of a merely equitable title to a chose in action, acquired by an assignment which remains in the possession of the assignor. A gift of a chattel is not consummated and perfected until the delivery of the thing promised, and until then the party may revoke his promise. So also an assignment of a chose in action (e. g., a bond: Zimmerman v. Streeper, 25 P. F. Smith 147; or a policy of insurance: Trough’s Estate, 25 Id. 115; or a single bill: Pringle v. Pringle, 9 Id. 281; or a certificate of deposit: Withers v. Weaver, 10 Barr 391), where the assignor retains possession of the chose, or of the assignment, passes no title to the assignee or donee ; and the reason is that the retention of the chose, or of the assignment, is unmistakable evidence that the assignor, whatever his future intentions might be, has not parted with his property in the thing over which he retains entire control.</p> <p>“ If Mr. Thomson had suffered these shares to stand in his own name, and had executed to Miss Poster an assignment of them, and had retained that assignment in his own possession until his death, never having delivered it to her, there would seem to be no doubt under the decisions that no property in the shares would have passed to her. And the result would have been the same if he had given her a parol assignment of them without valuable consideration, still retaining the shares in his own name, unless, indeed, circumstances could be shown amounting to a declaration of trust on his part to hold them for her use. But here the gift is complete by the delivery of the thing itself, for transferring the shares to her upon the hooks of the company is putting her in complete possession of the thing assigned, and clothing her with the complete legal title. It stands in the place of a delivery. Such an act performs precisely the office which an actual delivery would perform if it were a chattel. It is as complete a delivery as the nature of the thing will admit of. There can be no clearer evidence of a design to part with the right of property in favor of another than an absolute transfer of the legal title to her for her own use. Retaining in his possession the certificates which are in her name, and which lie could not use without her consent, cannot undo or qualify the decisive ownership with which he had invested her by the actual transfer to her on the books of the company. The best evidence of her ownership is the transfer on the books of the company. The certificates were but secondary evidence of her ownership, and only useful for purposes of transfer. They were nothing more than the official declaration by the. company of what already appeared on their hooks. There was here no locus poenitentice. He could not have used the certificates, nor could any one have used them except Miss Eoster.</p> <p>“ We are of opinion, therefore, that the cases relied upon by the defendants’ counsel upon the subject of incomplete gifts of chattels and of undelivered assignments of choses in action, have no application to the circumstances of the present case, for here was a complete divestiture of his own title and a complete investiture of title in her, so complete that he had no further control over the legal title and no power, without her consent, to undo or disturb it.</p> <p>“ This brings us to what appears to us to he the real question in this case, and that is, whether there is here sufficient evidence to rebut the presumption of a resulting trust, which always arises ■where a conveyance has been made without consideration to one, of an estate or other property which has been purchased with the money of another. The presumption of such a resulting trust is always rebutted, where, to use the language of the books, the purchase may fairly be deemed to be made for another, from motives of natural love and affection. Thus a purchase in the name of a child or of a wife is uniformly held by the unaided force of the relationship alone to rehut the presumption, unless there he clear evidence to show that the donee was intended to be a mere trustee. It would be a useless waste of time to go over the cases establishing this doctrine. They have been industriously collected in the paper book of the plaintiff’s counsel and are familiar to the profession. The doctrine is too well established to admit of the least doubt. It is not controverted by the defendants’ counsel; but it is contended that the presumption of a resulting trust cannot be rebutted in the present case because the donee is not related by blood to the donor. Yet the ordinary case of a gift to a wife shows conclusively that blood is not a necessary ingredient to give effect to the presumption rebutting such a trust. The presumption in favor of a wife or child, which rebuts the resulting trust, is doubtless founded on the moral obligation which rests on the donor to provide for them, and the inference which arises therefrom, that it was the intention of the donor thus to provide for them, and that they should not hold as trustees. But why may not the presumption also arise where these relationships do not exist, if there is clear evidence to show that such was the manifest intention of the donor ?</p> <p>“ It is quite clear that other circumstances and other relations in life, besides the relationship of parent and child, or husband and wife, may sufficiently rebut the presumption of a resulting trust. Thus a gift to a sister: Kiddill v. Farnell, 5 Weekly Reporter 424; a grandmother to grandchildren: Gardner v. Merritt, 32 Md. 78; 10 Am. Law Reg. N. S. 127; a step-father to a step-child: Ray v. Simmons, 15 Id. 702; a relation by marriage: Currant v. Jago, 1 Collyer 261. Now whether there is, or is not, a resulting trust, must, as was said by Lord Hardwicke in Hill v. The Bishop of London, 1 Atk. 618, always depend upon the intention of the grantor. As the presumption which arises in favor of a wife or child is founded exclusively upon the intention of the grantor inferred from the relationship, it would be extremely illogical to hold that a like presumption could not be derived from other circumstances clearly showing the same intention, and especially from proof of the express and deliberately declared wishes of the grantor.</p> <p>“ There is no magic virtue in blood in such cases, except in so far as it gives rise to a strong, and unless rebutted, a conclusive presumption of the grantor’s intention. What, then, was Mr. Thomson’s intention in the present case ? If he had declared in so many words, that this was not to be a resulting trust in his own favor, and that Miss Eoster was not to be a trustee, but a beneficiary, would any one doubt that the presumption of a resulting trust would be rebutted, notwithstanding the fact that she was only connected with him by marriage, and by the ties of an affection which he himself declared to be as strong as the ties of parental affection ?</p> <p>“We are to look for the intention of the grantor in his acts and expressions. By his own act he invested her with the complete legal title to these shares. With what intention ? That she should •be a trustee for him ? Eor what purpose ? What possible motive can be attributed to him for having these shares transferred to her upon the books of the company, and thus putting them entirely . beyond his own control, if he did not intend her to take as a beneficiary ? Was she a stranger to him ? Let him answer for himself. Three days before his death, he wrote in the codicil to his will:—</p> <p>“ ‘ I desire my dear niece, Lottie Eoster, but to whom I cherish the feelings of a father, to be so treated and regarded in the law as if she were really my own child.’</p> <p>“ And on the day before he died he repeated it:—</p> <p>“ ‘ I wish my niece, Charlotte F. Foster, to bo considered as my daughter.’ Let it be remembered, also, that these declarations were made less than two months after he had transferred the shares to her.</p> <p>“ It seems to us, that to decide now' that she cannot take as a beneficiary, but must be held to be a trustee propter defectum sanguinis, would be to fly in the face of the plainly-expressed intentions of Mr. Thomson, and to override what cannot but be regarded as his most urgent dying request. There is, no doubt, a great deal in blood, as indicating the intention with which such an act as this is done. But there is also a great deal in the fact that a childless man takes to his home and heart an orphan child — a near relation of his wife, and dependent upon him for support — and plants her there in the place of a daughter, treats her in all respects as a daughter, and in one of the most solemn acts of his life declares that, in measuring her legal rights, he desires her to bo considered, in all respects, as if she were really his daughter. It would bo a mockery of reason, and an unjust perversion of a wholesome principle, to apply the presumption of a resulting trust, because she is not a child, when the author of the gift so solemnly and so emphatically declares that he desires her ‘ to be treated and regarded in law as if she were really his child.’ The principle which raises a resulting trust where there is a conveyance to a stranger, or where there is not evidence of a manifest intent that the grantee should take as a beneficiary, is a principle founded in wise and just considerations ; but it is not to bo applied indiscriminately, or where there are facts and circumstances which fairly rebut it.</p> <p>“Looking at all the circumstances of the case, and giving effect to the declared wishes of Mr. Thomson in reference to the legal status and rights of Miss Foster, we are of opinion that the presumption of a resulting trust is in this case fully and fairly rebutted; that she has a perfect legal and equitable title, and is entitled to the relief prayed for. Accordingly, let there be a decree for the plaintiff.”</p> <p>After a decree entered in accordance with this opinion the defendants took this writ, assigning the entry of this decree for error.</p>

186. Assumpsit by Fannie L. Graham against the First National Bank of Carlisle, to recover the value of four bonds deposited by her with the cashier of the bank, and for which she held the following receipt:— “ Carlisle, Pa., Oct. 22d 1868. “ Miss F. L. Graham has left in this bank, for safe keeping, four thousand dollars (§4000) in U. S. 5-20 bonds of 1867, to be returned on the return of this receipt. (Signed) Chas.

<p>1. F. and his wife, E. L. F., executed a deed of trust of the wife’s estate as to one-third thereof in trust to pay over the net rents, issues and profits, interest and income thereof, for and during the lifetime of the said E. L. F., to such persons as she, the said E. L. F., whether covert or sole, may appoint: * * * Provided, that such rents, issues and profits, interest and income, shall not he liable to her debts, contracts or engagements, or the debts, contracts or engagements of her present or any future husband. And from and immediately after the decease of the said E. L. F., then to grant, convey, assign, transfer and set over the said one full, equal, undivided third part of the said trust estate hereby granted and assigned unto such person or persons, and for such use and uses, estate and estates, as she, the said E. L. P., whether covert or sole, by her last will and testament, or any instrument in the nature thereof, shall direct, limit and appoint; and for want of such direction, limitation or appointment, then to grant, convey, assign, transfer and set over, the said one full, equal, undivided third part of the said trust estate hereby granted and assigned unto and to the use of such person or persons, and in such’ proportions as they would be entitled to under the present intestate laws of the state of Pennsylvania, if the said E. L. F. had survived her husband, and died intestate in said state. F. and his wife were afterwards divorced. Held, that the trust was an active one to preserve the corpus of the estate for the appointees or heirs and did not fall with the divorce.</p> <p>2. Earp’s Appeal, 25 P. F. Smith 119, and Yarnall’s Appeal, 20 P. F. Smith 339, distinguished; Williams's Appeal, 3 Norris 377, followed.</p> <p>3. In 1859 E. L. F. made her will, the first clause reciting that it was made “ in pursuance and execution of all laws, authorities and powers enabling me to make a last will or appointment in the nature thereof.” In the foregoing deed of trust, made in 1875, testatrix reserved to herself the power of appointment by will in the terms therein contained: Held, that the will was not a valid execution of this power.</p>

<p>Error to the Court of Common Pleas of Tioga county: Of May Term 1877, No. 200.</p> <p>Assumpsit by James H. Bosard, administrator of John Arnot against Job W. Symonds, on the following promissory note :—</p> <p>“ $331.84. Elmira, N. Y., Dec. 21st 1872.</p> <p>Two months after date we promise to pay to the order of Booth, Dounce, Rose & Co., three hundred thirty-one and T®/o dollars, value received, at First National Bank of Wellsboro, Pa.</p> <p>Houghton, Orr & Co.”</p> <p>Endorsed in the position the names are printed below:</p> <p>o -s © (A © © P © © PQ</p> <p>* *< ©</p> <p>Arnot purchased the note before due for value in the regular course of business, without knowledge as to the time when Symonds endorsed the note, whether before or after the payees, Booth, Dounce, Rose & Co. Booth, Dounce, Rose & Co., endorsed the note at the usual and proper place for the payee to endorse, and Symonds’s name is written under the name of the payees; and the only irregularity there was about the note or endorsements at the time plaintiff purchased it was the fact that Job Symonds’s name, under that of Booth, Dounce, Rose & Co., was inverted.</p> <p>The evidence showed that Houghton, Orr & Co. were required to furnish security beyond their own firm name. They applied accordingly to the defendant to endorse their note. He endorsed it by writing his name across the back of the note on the right hand end, at about three inches from the end of the paper. In this condition it was sent to the payees. They did not endorse above the name of defendant, but put their endorsement at the other end of the paper, and negotiated the note at the Chemung Canal Bank, owned by the plaintiff. The note went to protest, and the holder sued the defendant as endorser.</p> <p>The only question was, whether the fact of Symonds’s name being endorsed in this irregular manner, a recovery could be had against him by plaintiff.</p> <p>The court, Williams, P. J., held, under the authority of Eilbert v. Finkbeiner, 18 P. F. Smith 243; Losee v. Bissell, 26 Id. 459; and Schafer v. The Farmers’ and Mechanics’ Bank, 9 Id. 145, that the defendant was not put fairly in the position of a second endorser by this anomalous endorsement, and was not, therefore, liable, and directed a verdict to be found for him.</p> <p>The plaintiff took this writ and assigned this action of the court for error.</p>

<p>1. The right of appointment of the governor, to fill a vacancy in a county office, under the 8th section of the 4th article of the constitution, extends only to the period between the death, resignation or removal of the incumbent and the beginning of the new term by regular succession.</p> <p>2. The sheriff of McKean county died on the 14th of October 1875, in the last year of his term. To fill the vacancy the relator was appointed by the governor, his commission running to January 1877. The respondent was elected sheriff for the term of three years, at the regular triennial election on November 2d 1875. Held, that the appointee of the governor was only entitled to the office from the time appointed until the beginning of the next regular term in January 1876 ; and that the respondent was entitled to the same after that time.</p>

<p>Appeal from the decree of the Court of Common Pleas of Qlinton county: Of May Term 1877, No. 107.</p> <p>William McGinnis obtained a judgment against Adolph Prieson, for ^9779.20, on the 12th day of August 1876. On the same day ho issued a writ of fieri facias, and levied on the personal property of Prieson, consisting of household furniture, as well as a lot of fixtures, drugs, medicines, &c., in a drug store. All the articles in the drug store were sold by the sheriff on the 28th of August 1876, for $2614.76. Out of the proceeds of this sale Jonas Zindel claimed $216.17. Zindel had obtained three several judgments before an alderman against Prieson and one Ira Mason for about $200. Upon these judgments executions were issued by the aider-man and placed in the hands of the constable on the 3d of July 1876, and were returned by the constable as stayed by the order of plaintiff. On the 26th of July 1876 executions were again issued to the constable, who on the 7th of August 1876 endorsed thereon the 'following levy : “ August 7, ’76. I have this day levied on the following personal property belonging to the within-named defendant: one soda-fountain and fixtures, seven show-cases and contents, a lot of whiskey, brandy and wines in bottles and barrels.” On each of said executions there was also the following endorsement : “ Aug. 15, ’76. Returned with a levy endorsed, on want of time.” On the 15th of August three other executions were issued on the same judgments, upon each of which appears the following endorsement: “ See old execution August 7, ’76. I have this day levied on the following personal property belonging to the within-named defendant,” naming the articles enumerated above.</p> <p>McGinnis contended that there was no levy made by the constable upon the articles specified in the return made by him, and to establish this fact and contradict the return, called Prieson, who testified : “ He never notified me that he had made a levy; he never indicated to me that any part of the goods in my store were under levy. I went on and used the goods in my store until closed by the sheriff, the same as I always did for the same purpose. If a customer had desired to purchase anything in the show-cases or the liquors, it would most certainly have been sold to him. He never notified me that he would make a levy, but he showed me the papers and said if they were not fixed up he would have to make a levy. This was something like five or six days before I was closed up. I told him he had better get an indemnifying bond before he made a levy upon my goods. He did not make a levy at that time to my knowledge, because he came in two or three days after and asked me whether I had seen Mr. Zindel or Mr. Mason. .There was some negotiation at that time in reference to taking notes for the amount of these executions.”</p> <p>The constable, on the contrary, testified: “I made a levy on the old executions, on each of them, and the levy was endorsed on the back of each of the executions. This levy I endorsed on each of the old executions before I returned them. The old executions were issued on the same judgments and for the same amounts (except that there were a little more costs) as those offered in evidence here. As far as the things levied upon I did not tell any one. I told Mr. Prieson I would make a levy, and made it in Ms presence. He then told me to get a bond. I did not tell him I had made a levy after I had made it. I left the goods in the store, in Dr. Prioson’s possession. All kinds of things that are usually kept in drug-stores in show-cases were in the show-cases upon which I levied. The goods were left by me in such a way that Dr. Prieson could use them. I was not directed by any one not to remove the goods. I saw the goods almost every day after I had levied upon them before the sheriff closed the store. I saw the doctor several times, too, and talked to him about it. There was nothing to indicate to a stranger that the goods were under a levy. I never itemized the contents of the show-cases. I never took the number of the bottles and barrels of brandy, Avhiskey and wine. The liquors in bottles that I levied upon were on the right hand of the store, and those in barrels were in the cellar. I was not in the cellar that day, but I was the week before I levied— probably it was ten days before. I had the levy on a piece of paper, and copied it on the executions. The memorandum was made in Prieson’s store. The memorandum is either lost or mislaid. Dr. Prieson was in the store when I made it. I told him I’d make a levy, and I made it in his presence, he on one side of the counter and I on the other.”</p> <p>It Avas further contended by McGinnis, that even if the levy was made as stated in the return of the constable to the executions issued on the 26th of July, that the constable having returned the executions without proceeding to sell, the lien of the levy was gone when the writs wore returned on the 15th of August.</p> <p>The court, Mayer, P. J., in an opinion, said: “ The lien of Zindel’s executions had attached before McGinnis’s writ reached the hands of the sheriff, and the constable could have insisted on his right to sell the goods levied on as against the levy made by the sheriff on the same goods. But he did not assert Ms right and returned these executions on return day with levy and not sold for Avant of time. The justice issued other executions upon which he endorsed and preserved the levy made on the former executions. The sale Avas made by the sheriff on the 28th of August, being eleven days after the levy made by the constable on Zindel’s executions, and nine days before the lien of the levy had expired. It is of no consequence that the sale was not made by the constable. The lien of his levy would attach to the proceeds of sale. Being of the opinion that the execution of McGinnis is postponed in the distribution of the proceeds of sale to the three executions of Jonas Zindle v. Adolph Prieson and Ira Mason, it is ordered and directed that that portion of the proceeds of sale of the personal property of Adolph Prieson in his drug store realized from a sale by the sheriff of the goods and chattels levied upon by the constable on the executions of said Zindel, be and appropriated to the payment of the debt, interest and costs of said executions.</p> <p>From this decree this appeal was taken.</p>

<p>Error to the Court of Common Pleas of Warren county: Of May Term 1877, No. 36.</p> <p>Trespass for cutting and carrying away timber and timber trees, brought by W. E. Jones and others, against Lewis E. Watson and others.</p> <p>The plaintiffs claimed title to warrant tract No. 4822, and defendants to tract No. 4824. No. 4824 lies immediately north of and adjoining 4822. The lands are east of the Allegheny river, and situate in Limestone township, Warren county. The parties claimed title to their respective tracts from the Holland Land Company. January 30th 1†94, a large number of warrants, including 4822 and 4824, were issued to the Holland Land Company. Surveys were made in September 1794, which were returned October 2d 1799. The defendants’ tract was surveyed September 11th 1794, and the plaintiffs’ September 12th 1794. The true location of the south line of 4824 and north line of 4822, as fixed by the original survey, was a question in the case.</p> <p>The defendants, in support of their location of the disputed line, showed that tract 4824 and 4822 were two of a large number of warrants surveyed to the Holland Land Company by the same deputy surveyor, and at about the same time; that tracts 4837, 4819, 4838 and 4839 were surveys also of lands for the Holland Land Company; that the west and south lines of 4837 were run and marked on the ground for that tract, and also as boundaries of defendants’ tract on the same day, September 11th 1794. The location of the black oak, called for as the corner of 4837, 4819, 4838 and 4824, together with the original lines running east and west therefrom, was proved and admitted on the trial. It was also in evidence that tract 4819 was surveyed September 9th 1794, and the tracts 4837, 4838, and defendants’ tract, 4824, were surveyed on the same day, September 11th 1794, by the same surveyor. The defendants claimed that in the absence of any survey actually made on the ground, fixing their south or the plaintiffs’ north boundary, that they were entitled to run south the distance called for in their survey, 265T3ff rods, and thence due west to the intersection of lands that had, before the Holland Company’s survey, been warranted and surveyed to one George Mead by a different deputy surveyor. A line thus run would include all the timber cut by defendants.</p> <p>The plaintiffs claimed that the true location of their north and defendants’ south line was some ninety-four rods north of the line claimed by defendants; and this, if true, would give them the timber cut by defendants.</p> <p>In February 1794, a number of warrants were issued to George Mead. These warrants were laid in April 1794, and returned July 6th 1798. In laying those, the surveyor commenced at the Allegheny river and worked towards the east. These surveys were made by a different surveyor from the one who surveyed the Holland Land Company’s warrants. The Mead warrants were for 1000 acres each, were rectangular in form, and laid on forty-five degree lines; the Holland Land Company’s warrants were on true meridian lines. A large number of the Holland Land warrants, including the tracts claimed by plaintiffs and defendants, were laid on the same land covered by the Mead surveys. The Holland Company filed caveats against the issuing of patents on a large number of the Mead surveys, and on the 21st of April 1796, a compromise was effected, by which the Holland Company withdrew the caveats as to a large number of the Mead warrants, including the tracts 5250 and 5249; and Mead relinquished all claim to certain other of his warrants, covering, among others, the two tracts claimed respectively by plaintiffs and defendants, and numbered in the Holland Company’s drafts as 4822 and 4824.</p> <p>To locate the north line of their tract, the plaintiffs, having given in evidence the warrant and survey of 4822, introduced evidence to show that a pine at the southeast corner of Mead’s warrant, 5250, was an original corner, marked as a corner of three of the George Mead warrants, and that a line run northeast from that tree a distance of 583 rods (the distance called for as the southeast line of Mead’s warrant); and claimed that this distance and course marked the location of the post called for at the northeast corner of 5250, and fixed the location of the post called for in the surveys of tho Holland Land Company’s tracts, 4822 and 4824, and that tho dividing line would be a line run due east from this post. The southeasterly and the northeasterly lines of the Mead warrants, 5250 and 5249, were never run on the ground. The post called for at the northeast corner of 5250 was a supposititious one. Neither the east line of plaintiffs’ or defendants’ tracts, the dividing line between them, or the southwesterly line of defendants, or the south or northwest line of plaintiffs’ tract, were originally run on the ground, and the post called for at the west end of the line dividing them was a supposititious one.</p> <p>The defendants further claimed that even if the original location of the dividing line between 4824 and 4822 was as claimed by the plaintiffs, that the same was changed by the owners under whom both parties claim; and the line as claimed by defendants was adopted as the true dividing line between the tracts; and this upon the following facts, which were proved on the trial, viz :</p> <p>In 1814, or prior thereto, the title of the Holland Land Company to the tracts 4822 and 4824, together with other lands, amounting to some 170,700 acres, lying in one body, became vested in the Lancaster Land Company. On the 20th of April 1814, the Lancaster Land Company placed upon record in Venango county, to which Warren was then attached, a draft of their lands, and by that draft the lands were afterwards sold in parcels. This draft dropped the original numbers of the warrants, and divided the rectangular tracts each into six subdivisions, with new numbers. The irregular tracts were not subdivided (plaintiffs’ and defendants’ tracts were irregular tracts), but the warrant number of plaintiff's’ tract, 4822, -was dropped, and No. 708 was substituted. The warrant number of defendants’ tract, 4824, was dropped, and No. 769 was substituted. This draft gives the length of the line bounding both the tract of the plaintiffs and that of tho defendants, together with the adjoining land of the Lancaster Land Company, anil does not call for and makes no mention of the Mead land ; the dividing line between 768 and 769 being a line run due west from a point 265t% rods south of' the black oak tree, the admitted corner of the original tracts, 4824, 4837, 4819 and 4838.</p> <p>On the 28th of March 1814, being before the recording of the draft before mentioned, the Lancaster Land Company made au agreement in writing with a surveyor, one Samuel Dale, by which he agrees that he will go on to their lands “ and will lay off the same into 772 tracts, according to the sizes and dimensions, courses and distances, of a large draft of said lands, ’ ’ which draft was made part of the agreement. This draft, with the exception of one or two immaterial clerical errors, is the counterpart of the one recorded. Pursuant to this agreement Dale did go on to the ground, in the summer of 1814 and 1815, and run and marked the lines and courses of the sub-divisions, and these were easily traced. Commencing at the maple in the eastern line of No. 767, as shown by his original notes, ne run north, measuring and marking the courses of the subdivisions on the east plainly by their numbers. The dividing line between 767 and 768 he indicated by a post. The dividing line between plaintiffs’ tract, 768, and defendants’ tract, 769, he also indicated by a post. This post is 92 rods north of the southwest corner of sub-division No. 572, which corner is plainly marked, and at the east end of the division line, as claimed by defendants, between 768 and 769 — and is 265'rods south of the black oak admitted corner. Dale marked the line running south of-the subdivision numbers 543 and 544, and line west of subdivisions 544 and 513. A few days afterwards, as shown by his notes, Dale goes back to the maple in the east line of 767 and runs and plainly marks, as the draft requires, a line south a distance of 71 rods to a chestnut tree. This tree is plainly marked by Dale in figures, 7 67, as the southeast corner of that tract. Erom the chestnut he ran west, and for 171 rods, as called for in the draft, he marked the line plainly. It was iii proof that running from the west end of this 171 rod line, the courses and distances called for by the draft, as the southwesterly side of plaintiffs’ tract, would locate the dividing line between the plaintiffs’ tract, 768, and defendants’ tract, 769, at the point claimed by defendants. Dale did not run the division line between 767 and 768, or between 768 and 769; nor did he run either the southwest line of 767, the noi’thwest line of 768, or the southwest line of 769. Erom the chestnut marked by Dale as the southeast corner of tract 767, due north to the admitted black oak, the northeast corner of defendants’ tract, 769, and also the corner of the subdivisions 543, 542 and 545, is 1130 rods, as given on the draft; and the recent measurements given in evidence agree with the draft and the work of Dale on the ground within from six to nine rods — showing that each of the tracts, 767, 768 and 769, have their full distances on the east line as called for by the draft put on record, and the one from which Dale made his survey, by locating the division line between 768 and 769, as claimed by defendants. But if located as claimed by plaintiffs they would have some 94 rods more, and the defendants 94 rods less than their distance as given on the recorded draft.</p> <p>The plaintiffs claimed title to their tract under an alleged sale made by the treasurer to the commissioners of Wai'ren county in 1840. No deed from the treasurer to the commissioners was shown, and there was no proof that any person had ever seen or known of the existence of such a deed. It was in proof that it was the practice of the commissioners to retain the deeds of the lands bought by them at the treasurer’s .sales, and that the package of deeds of lands bought by them in 1840 was still in the office.</p> <p>Eor the purpose of showing sale by the treasurer to the commissioners, the plaintiffs offered and under exceptions the court admitted in evidence, a book brought from the treasurer’s office. This book was a large docket, into which the original sale lists were claimed to have been copied for many years before and after the year 1840, and both before and after 1840 were in the handwriting of Thomas Clemons. The original sale lists were burned, and no proof was given that the book offered was a copy of the sale lists,' nor was any authority shown directing such a book to be kept by the treasurer.</p> <p>As further evidence of the existence of a deed from the treasurer to the commissioners, the plaintiff offered and the court, under exceptions, admitted the minute-book of the commissioners, in which under the heading, “ Lands purchased at treasurer’s sale by county commissioners for use of the county for year 1840,” it was stated that June 10th 1840, the tract 768, Limestone township, was purchased by the commissioners, and also marked “sold October 1st 1845;” and entry in the same minute-book under date of October 17th 1845, “sale of tract 768 to James A. Alexander,” under whom plaintiffs claimed title.</p> <p>In further tracing title the plaintiffs offered a paper claimed to be a deed from the commissioners of Warren county to James A. Alexander, dated January 30th 1846, for tract 768. The defendants objected to the deed, because the paper had neither the private seal of the commissioners nor the official seal of the county, and because no title was shown in the commissioners’ deed. The court, under exceptions, admitted the paper in evidence. While the case was on trial, the plaintiffs, January 6th 1876, had the county commissioners affix the seal of the county thereto, and again offered it in evidence, and the court, under exceptions, received it in evidence in its amended form.</p> <p>On the question of the dividing line between the lots the court, Vincent, P. J., inter alia, said:—</p> <p>“ This suit only involves, directly, the true location or survey of Holland Land Company warrants Nos. 4824 and 4822, the former claimed by the defendants and the latter by the plaintiffs.</p> <p>“ The timber which is in dispute was cut upon one or the other of these tracts; if upon a tract owned by the plaintiffs, they are entitled to recover; if upon a tract owned by the defendants, your verdict should be for them.</p> <p>“ The survey of tracts 5249 and 5250 w'ere returned July 6th 17 98, or more than a year after the compromise between Mead and the Holland Land Company, and we have a right to presume that it was done in pursuance of that compromise. The return of the survey of 4824 was made more than one year after the return of 5249 and 5250, and this return shows one southwest corner of the tract at a post, which in the plot of the same survey is made the northeast corner of 5250, and the southwest line of 4824 is the northeast line of both 5249 and 5250. The patents to the Holland Land Company for 4824 begins the description at a post, thence by lands surveyed on warrants 5250 and 5249 northwest 640 rods to a post, which was no doubt intended to carry this line to the northwest corner of 5249, and the draft of the survey so shows. This survey is bounded on the east and in part on the north by the east and south lines of Holland Land Company’s tract 4837 and west line of 4838. It also calls for tract 4822 as one of its south boundaries.</p> <p>“ The initial point of the survey of 4824 is a post at the northeast corner of 5250, and thence along northwest line of 5250 and 5249, and we must locate the whole survey by starting from this initial point.</p> <p>“ It is conceded that the surveyor did not actually run on the ground in 1794 the lines of 4824 as the lines of that tract, but that he adopted certain lines as its boundaries.</p> <p>“ In order, then, to find the true starting point of the survey of 4824, we must locate the true northeast corner of 5250 and the northwest line of 5250 and 5249.</p> <p>“ It is in testimony that a certain white pine at the southeast corner of 5250 is an original corner of the Mead survey, and -the fact that it was marked for three of his tracts is evidence that it is an original corner, but it is for you to decide whether it is or not.</p> <p>“ If you find the white pine to be the true southeast corner of 5250, the true northeast corner of that tract is at the end of a line running due northeast 583 rods, and the true southwest line of 4824 is a line running northwest from that poipt; and if you find that the survey was made from the end of that line of 583 rods, and no lines were marked on the ground, the other courses and distances must conform to the known course and known line, and the true south line of 4824 and north line of 4822 will be a line running due east from the north end of the line 583 rods from the white pine, for such now we must presume to have been the intention of the surveyor if this was a chamber survey, for more than twenty-one years have elapsed since it was made and returned.</p> <p>“ In 1814 the Holland Land Company’s land had become the property of the Lancaster Land Company, and in that year the latter company made a contract with Samuel Dale to subdivide these lands into 772 tracts. Dale did so subdivide these lands, but in doing so he adopted the lines of 4824, 4822 and 4820 as subdivision lines, running in part only the east lines of 4824, 4822 and 4820, and probably the south line of 4820. He also ran and marked the south and west lines of 4837, but there is no evidence that he run or marked any other lines of either 4824 or 4822. He adopted the other lines. At this time the Lancaster Land Company owned both 4824 and 4822, and the adjoiners on the east, and they could alter their own lines as they pleased, but the map furnished to Dale does not nor does the contract with him propose to change any of the lines of the original surveys of their lands; and unless Dale did, by marks on the ground, do so, with their consent, before or after, the lines of the original surveys still stood after his survey as the lines of the several original tracts, and they will therefore still remain as their true boundaries, and define the extent of the ownership of the respective owners of 4824 and 4822. You will thus see that the lines originally made or adopted, as the true division line between 4824 and 4822, is the true division line between these tracts, unless it was changed by the owners before any ownership thereof by the plaintiffs, or their predecessors in title.”</p> <p>The verdict was for the plaintiffs for §4800, and after judgment defendants took this writ, assigning for error, inter alia, the charge of the court upon the question of the dividing line, the admission in evidence of the books of the treasurer, and the admission of the commissioners’ deed to Alexander, which was unsealed.</p>

<p>1. Where several parties unite to make an assault, which results in homicide the acts and declarations of the defendant immediately prior to the assault, what was said in his presence by those acting in concert with him, and what occurred after the attack, are competent evidence.</p> <p>2. In a trial for homicide it was shown that the deceased was terribly beaten and left insensible by his assailants. He was carried to a house near by, and on the following morning started to his home, about a mile distant, unaccompanied and on foot. About midway to his home he was met by an acquaintance, whom he accosted, saying, “ Bill, it is all up with me ; I will never get over itand then went on to speak of his wounds and how they were inflicted, and from the effects of which he died two days thereafter. Held, that this evidence was properly received as dying declarations.</p> <p>3. Where one has been convicted of an infamous crime, but not sentenced, and motions in arrest of judgment and for a new trial are pending, he is not a competent witness for another who was jointly indicted for the same offence and granted a separate trial.</p> <p>4. Where several parties are jointly indicted and separate trials grantpd, one who has not yet been tried is not a competent witness for either of the others on trial.</p> <p>5. It seems that when the essential ingredients of murder a.t common law, or murder of the second degree, under our code, are shown to exist, the burden of raising the grade to murder of the first degree devolves on the Commonwealth.</p> <p>6. All the ingredients necessary to constitute murder of the first degree were found to exist in this case.</p>

<p>1. In 1869, II. was discharged from prison, where he had been confined on a charge of complicity in the murder of It. The indictment had been found at February term of that year, and when discharged the May term, the second after his arrest and imprisonment, had expired. Eight years thereafter H. was again indicted for the murder of It., and set up this discharge as a bar to the prosecution, claiming that he was entitled to the benefit of the “two-term rule,” prescribed by the Act of 31st March 1860. It appeared from the record that immediately before the motion for the discharge the district, attorney had asked leave to enter a nolle prosequi as to El., and tlxat the entry was made at once. Held, that the record did not slxow a disciiarge under. the two-term rule of the statute, and the entry of the nolle prosequi was not a bar to the second indictment.</p> <p>2. A confessed accomplice in the murder was offered as a witness to fasten participation in the crime upon the prisoners. He was objected to on the ground that he had been convicted of larceny and his sentence had not expired. To meet this objection a pardon was offered, granted by the governor. Against this it was alleged that the rules of the board of pardons had not been observed and that the full sentence of the court had not been recited therein. The only omission was the direction for the restoration of the property stolen, or the payment of its value. Held, that the court was bound to accept the executive action as controlling and conclusive.</p> <p>3. Against the same witness it was alleged that he had been convicted of highway robbery and sentenced, and subsequently discharged under the provisions of the Act of May 1st 1861. It was insisted that he was not competent to testify, because he had not complied with the terms of his sentence. Upon the production of the record it appeared that the trial had been in the Quarter Sessions and not in the Oyer and Terminer. Held, that as there was thus presented the record of a conviction in the Quarter Sessions, for a crime triable only in the Oyer and Terminer, the whole proceeding was a nullity and was properly disregarded.</p> <p>4. Dougherty v. The Commonwealth, 19 P. F. Smith 286, followed.</p> <p>5. The prisoners were charged with murder, which had followed a highway robbery, and it was proposed to prove that they were members of a secret society, tlxat had lor its object the commission of crimes, chiefly boatings, arsons, robberies and murders, and the protection of its members from arrest and punishment by secreting them, aiding their escapo and otherwise. This evidence was offered to show an extensive organization of conspirators to commit crime, having the robbery and murder charged within the general scope of the conspiracy, as well as tending to show opportunity, means, preparation and disposition on the part of the prisoners to commit the crime in question, and to explain and corroborate other testimony, in regard to the arrangement for the commission of said crime. The court below ruled that the Commonwealth might prove the fact of the membership of the prisoners in such organization, confining the testimony to facts that existed at the time of the murder. Held, that this evidence was clearly competent to the extent to which it was admitted.</p> <p>6. Held, further, that for the same reasons it was relevant to prove that the place where these prisoners mot was a common resort of the members of this secret organization.</p> <p>7. The court below charged the jury that the testimony of an accomplice, before it is accepted as true, should be corroborated by unimpeachable testimony in some material part which affects the prisoner on trial and connects him with the offence, but it is not necessary that the corroboration be by direct testimony ; it may be by such circumstances as satisfy the jury of the fact: Held, that this instruction was proper.</p> <p>8. Where the questions put to a witness on cross-examination are as to matters which are not connected with the cause or the parties, they come within the rule of collateral matter and are not subject to contradiction.</p> <p>9. Statements made by a prisoner to outside parties in relation to his return home and surrender to the officers of the law, cannot be made evidence on the principle of res gestee.</p> <p>10. Where an attempt is made to discredit the statement of a witness, evidence is admissible to show that he had previously made a similar statement to other parties, not to show that the statement is true, but that it is not a fabrication of recent date.</p>

<p>Error to the Court of Common Pleas, No. 2, of Alleghany county: Of October and. November Term 1877, No. 9.</p> <p>On the 17th day of May 1876, R. II. Fife, Esq., sheriff of Allegheny county, by virtue of writs of fieri facias to Nos. 132 and 133 and No: 195, July Term 1876, levied on certain personal property of Henry Long, the defendant named in the writs, and on the 31st day of May 1876, in pursuance of notice, sold the same at public vendue to Frederick Mackaness, the plaintiff in error, for the sum of $371, who entered into immediate possession.</p> <p>On the 15th of July following, upon the affidavit and motion of the sheriff, a rule was granted to show cause why the sale should not be set aside under the writ to July Term 1876, No. 195, in which Frederick Mackaness was plaintiff and Henry Long defendant. In the other two writs the Allegheny Valley Railroad Company was the plaintiff. The records in the three cases were united in this proceeding. The remaining facts will be found fully stated in the opinion of the court.</p> <p>The court made the rule absolute and Mackaness took this writ, assigning for error this action of the court. The writ was taken out in the name of Frederick Mackaness, plaintiff in error, and R. II. Fife, sheriff, defendant in error.</p>

<p>1. Legislation whieli provides for the fail- and equal assessment of properties peculiarly benefited by a local improvement, in order to pay its cost, will be sustained as a legitimate and constitutional exercise of legislative powers, but not where such an assessment, from the character of the improvement, is impossible.</p> <p>2. A bridge crossing a stream at a public highway in a city is a public, not a local, improvement, and the cost of its construction must be borne by the general public and not assessed upon individual property.</p> <p>3. Per "Woodward, J. — At the very utmost, in the case of an improvement whose public object and character are palpable, assessment of individual property to meet its cost would be justified only by affirmative and distinct proof appearing on the record of individual benefits actually conferred, and of their nature, extent and value.</p> <p>4. Undecided whether the provision of the Act of 1871 warrants the removal of any existing bridge and building of another at private cost, at the option of city councils.</p>

1, of Allegheny county: Of October and November Term 1876, No. 172. In Equity. The case was first argued on the 80th of October 1876, and this re-argument was subsequently ordered of the court’s own motion.

<p>1. The merits of the original judgment cannot be entered into by the defendant in a scire facias upon that judgment.</p> <p>2. A decree of court declaring the mortgages executed by a railroad company to he the first lien on its property and franchises, does not give them precedence over the prior lien of a party who had no notice of the proceedings and was not a party nor privy to the decree.</p>

<p>1. The Act of Assembly of May 10th 1871, Pamph. L. 665, entitled “ An Act relative to grading, paving, curbing and otherwise improving Troy Hill road in the city of Allegheny,” and its supplement of April 1st 18-72, Pamph. L. 607, authorized the councils of said city to grade, pave and curb said road from Yinial to Garden streets, which improvement was wholly within said city, i the cost and expense of the same to be assessed' by three disinterested lree-¡ holders of said city as viewers, “upon all property in said city and Reserve) township which they should deem benefited thereby.” Held (reversing the court below), that the act and its supplement are unconstitutional and void, as they do not express in the title the purposes for which they were enacted, and are of no effect as to persons outside the city of Allegheny.</p> <p>2. It was contended that the hill ought not to be maintained because objection should have been made at the commencement or during the progress of the work, and that by remaining passive until the city had incurred the expense of constructing the road the relators were guilty of laches. Held, that they were not bound to object during the progress of the work or until the assessments were made, as until made they did not know wha.t they would be required to contribute.</p> <p>3. Dorsey’s Appeal, 22 P. F. Smith 192, followed; Blood w. Mercelliott, 3 Id. 391, distinguished.</p>

<p>The creditors of a corporation selected three of their number, who were elcated directors of the company, and charged with the management of its business. Held, that they could not be made liable as partners for supplies furnished them and used in the conduct of the corporation business.</p>

<p>Four appeals from decrees of the Orphans’ Court made in the settlement of the account of Malcolm Hay, Esq., administrator of the estate of Margaret H. Anderson, deceased.</p> <p>The facts as set forth in the petition of Mr. Hay, for a hearing of his account were in substance as follows: That petitioner settled an account of his administration of the estate of Mrs. Anderson which was confirmed by the court on the 17th of March 1876, in which account he charged himself with $10,000, received from the iEtna Life Insurance Company of Hartford, Connecticut, being the proceeds of a policy of insurance upon the life of William J. Anderson, husband of the decedent, MargaretH.Anderson; that in 1870, William J. Anderson took out this policy of $10,000 through the company’s agent in Pittsburgh, “ the said' sum insured to be paid at the office of the company in Hartford, to his wife, Margaret H. Anderson, her executors, administrators, or assigns, within ninety days after due notice and proof of the death of the said insured during the continuance of the policy;” that on the 15th of February 1872, Mrs. Anderson died intestate without any debts, and leaving- surviving her W. J. Anderson, her husband, and an only child, Grace, for whom, after the death of her father; Joseph W. Kerr, Esq., was appointed guardian; that William J. Anderson paid all the premiums on said policy until his death, on the 27th of March 1875 ; that said W. J. Anderson made no disposition of said policy during his lifetime and his estate is insolvent; that soon after the death of W. J. Anderson, upon communication being made to the iEtna Life Insurance Company, said company refused to pay the amount to any other person than the legal representatives of Margaret H. Anderson, and for the purpose of saving any delay, expense or litigation in the collection of the policy, and with the understanding between them that all questions as to who were entitled to the money arising therefrom should afterwards be determined by this court before it went out of the hands of the petitioner, it was arranged between petitioner and Joseph W. Kerr, guardian, as aforesaid, that letters of administration upon the estate of Margaret H. Anderson should be issued to petitioner. This was accordingly done and the money collected from the insurance company.</p> <p>It is now claimed tliat the amount of said life insurance policy was an asset of the estate of William J. Anderson, and not of the estate of Margaret II. Anderson; and demand has been duly made upon the petitioner in behalf of the estate of said William J. Anderson for the proceeds of said policy. He therefore prayed the court to review and to rehear his said account and to permit the same to be reformed and restated, so as to discharge it of the sum received by petitioner from said policy.</p> <p>Letters of administration were also granted to Mr. Hay on the estate of Mr. Anderson, and a similar petition for review was filed by him as said administrator and with a like prayer.</p> <p>The guardian of Grace Anderson demurred to this petition, and the court, Hawkins, P. J., sustained the demurrer, saying :—</p> <p>“ The question in the present case is not whether Mrs. Anderson had an absolute title to the policy; that she must be presumed to have had until the contrary appears ; but whether she had less than the absolute title. By the terms of the policy the maturity of the insurer’s obligation followed the death of the insured, and is independent of the life of the beneficiary. The sum insured is ‘ to be paid to Mrs. Margaret II. Anderson, her executors, administrators or assigns,’ within a specified time after the death of Mr. Anderson. No one else is mentioned as having an interest in the proceeds of the policy.</p> <p>“ The policy contains no limitation, reservation, exception, nor power of revocation affecting the interest of Mrs. Anderson. There is, it is true, a clause of forfeiture attached to the non-payment of premiums ; but the right to enforce it, which belongs to the insured alone, has never been asserted. It is not pretended that there was any ground to claim it. That the contract continued in full life until the death of Mr. Anderson is evidenced by the payment of the sum insured. The conditions of the policy were all complied with, and the only party who had right to cancel the policy voluntarily paid the sum insured to the party for whose benefit the contract was made and to whom the policy directed it to bo paid. No one else is interested to claim title to the fund as against the petitioner. There is no privity between him and the estate of Mr. Anderson. The act of Mr. Anderson in paying the premiums was purely voluntary and lacked the essentials of a contract. The title of Mrs. Anderson was vested and absolute, and could only bo divested by consent or the act of law. The payment of the premiums did not give but merely operated to preserve the life of the contract. It did not make him either the legal or the equitable owner of the policy. At most, his administrator could only claim that ho became creditor of the estate of Mrs. Anderson to the extent of the premiums paid after her death. The sum insured was paid by virtue of the original contract of insurance and the estate of Mr. Anderson can have no valid claim of title to the fund. It belongs to and constitutes part of the estate of Mrs. Anderson by virtue of the contract.</p> <p>“ It becomes, therefore, the duty of the petitioner to maintain and defend the title of his decedent to the proceeds of this policy. He is, therefore, not a “party interested” to have a review. The facts alleged might perhaps justify a suspension of the distribution, but the petitioner cannot be heard to dispute his own title, and the rule must be discharged.</p> <p>“ The only question raised in the proceedings was that of title, and the decision is therefore limited to that question. The question of distribution will be determined when raised.”</p> <p>Mr. Hay took an appeal in each case. The question then arose as to how the fund should be distributed; whereupon the court awarded the net one-half to Mr. Kerr, as the guardian of Grace Anderson, and the other net half to Mr. Hay, as administrator of W. J. Anderson ; the court, Hawkins, P. J., in an opinion saying:—</p> <p>“ There are two questions involved in this matter: 1. Whether the policy of insurance on the life of W. J. Anderson was personal estate and subject to the ordinary rules of succession ; and, 2. If so, whether the proceeds of that policy are exempt from the claims of the creditors of W. J. Anderson, deceased.</p> <p>“ 1. The statutory laws of Pennsylvania relating to decedents recognise but two classes of property as being capable of descent and succession, real and personal estate; and the rules of descent and succession are intended to be exclusive of all others, with the exception of those governing entailments and trust estates. ‘ The real and personal estate of a decedent, whether male or female, remaining after payment of all just debts and charges, which shall not have been sold, or disposed of by will, or otherwise limited by marriage settlement,’ are directed, by the Act of April 8th 1833, Pamph. L. 315, to be ‘ divided and enjoyed’ in a specified manner. If. therefore, the fund in question is capable of transmission, it must be so by virtue of these laws. Mr. Justice Read, speaking of policies of life insurance, said, in Elliot’s Appeal, 14 Wright 75, that ‘these policies were securites for money, valuable choses in action which could be sold at public or private sale, and are included in the general words personal estate or property, and would pass under that head by deed or will.’ If they would pass by deed or will, they would pass under the intestate laws. The legal title to the personal estate devolves upon the administrator, as of the date of the death of the owner, for the purpose of collection, and of distribution amongst the parties entitled by virtue of the intestate laws. The 15th section of the Act of March 15th 1832, Pamph. L. 139, requires him to file an inventory of the ‘ goods, chattels and credits,’ which is the generic expression for things personal as distinguished from things real, of his decedent. The 3d section of the Act of February 24th 1834, Pamph. L. 73, provides that £ whenever personal property or assets of any kind not contained in the original inventory come to the knowledge of the auditor afterward, a supplemental inventory shall be filed; and the 5th section of the same act provides that ‘all notes, bonds or other evidences of debt, also all claims or demands for money or any other personal property owned or held by the decedent at the time of his death,’ shall be included in the inventory. It is now settled law that contingent and executory interests and possibilities in personal estate are transmissible to the administrator : Purefoy v. Rogers et al., 2 Saund. 388, notes; 4 Kent 262. It seems clear, therefore, that the policy of insurance on the life of W. J. Anderson devolved upon the administrator at the death of Mrs. Anderson: Keller v. Gaylor, 40 Conn. 343. One of the conditions of the bond proscribed by the 21st section of the Act of March 15th 1832, is that the administrator shall, within a specified time after the grant of letters, deliver and pay all the rest and residue of the said ‘ goods, chattels and credits’ which passed into his hands, ‘ to such person or persons’ as the Orphans’ Court, ‘ by their decree or sentence, pursuant to law, shall limit and appoint.’</p> <p>“The only persons to whom the ‘goods, chattels and credits’ which were of Margaret II. Anderson, can be delivered and paid pursuant to law, are the representatives of W. J. Anderson, deceased, and Grace Anderson, who must take shares. The 9th section of the Act of April 11th 184.8, Pamph. L. 537, provides that ‘when a married woman, possessed of separate personal property, shall die intestate,’ her ‘ estate shall * * * be distributed as follows: * * * If such married woman leave a child or children living, her personal estate shall be divided amongst her husband and such child or children, share and share alike.’ The ‘persons’ entitled under this act must be ascertained as of the date of the death of the intestate. ‘Whenever a married woman shall die intestate’ and ‘ leave a child or children living,’ ‘ such child or children’ shall take with the surviving husband equal shares. Whilst the legal title to the personal estate devolved upon the administrator, the equitable or beneficial title vested in the surviving husband and child immediately on the death of Mrs. Anderson: Walworth v. Abel, 2 P. F. Smith 370.</p> <p>“ That Mr. Anderson could not gather the ripened fruit of his contract of insurance, was no reason why he should be deprived of his right to a share in the policy under the intestate laws. It might as well be said that he could not inherit a century plant because there could by no possibility be a flower during his life. Whatever has a present value will pass under the intestate law. Mr. Anderson’s ownership of the policy was absolute and unqualified. The policy had not ‘ been sold or disposed of by will, or otherwise limited by marriage settlement.’ It was personal estate; had an ascertained or ascertainable value, and was capable of assignment or bequest when Mr. Anderson died: Elliott’s Appeal, supra; Act of March 14th 1873, sect. 1, Purd. Dig. 1799; Act of April 4th 1373, sect. 5, Purd. Dig. 1795; Purefoy v. Rogers et al., 2 Saund. 388, note; 4 Kent 262; Cunningham v. Smith, 20 P. F. Smith 450. It was therefore a proper subject of succession. There was no express exclusion of Mr. Anderson, in the terms of the policy, from the right of succession. He could not be excluded by implication. The policy provides no new mode of distribution; the distribution must therefore be made ‘ pursuant to law.’ The presumption must always be in favor of the legal rule of succession, and those claiming otherwise must show that they have a written, or what is equivalent to a written, title from the decedent to themselves: Faries’s Appeal, 11 Harris 29; Whichcote v. Lyle, 4 Casey 73; Dubs v. Dubs, 7 Id. 154. Mr. Anderson having survived his wife, the statute gave him a prima facie right to share in her personal estate.</p> <p>There can be no doubt but that if Mr. Anderson had taken out a policy on his life expressed to be for his own benefit, although payable at his death, it would have been valid, and that he could have assigned or bequeathed it: Elliott’s Appeal, supra. There would seem to he as little doubt that Mrs. Anderson could have exercised the same power over' her policy in her lifetime and that a valid title thereto could subsequently have vested in Mr. Anderson. The same reasons exist for holding that Mr. Anderson took an interest under the intestate laws in the latter policy on the death of his wife. That which may be- acquired by assignment or will, may pass under the intestate law.</p> <p>“ The evidence which was offered at the hearing in this matter to show a waiver or relinquishment on the part of Mr. Anderson of his interest in this policy was clearly insufficient for that purpose. It was nothing more than a declaration of intention, which would not have been binding on him, and was not effective to convey his title: Trough’s Estate, 25 P. F. Smith 115; Bliss on Life Ins. 339. Trough’s Estate was a much stronger case than this. There a father wrote an assignment on the back of a policy of insurance on his own life, to one in trust for his children, placed it in his safe and continued to pay the premiums until his death. It was held that the gift was not complete, and that the proceeds, went into his general estate, notwithstanding .the manifest intention of the insured to the contrary.</p> <p>“ The Act of April 15th 1868, Pamph. L. 103, has no application to the present case.</p> <p>“ In 1865 it was held, Elliott’s Appeal, supra, that an assignment made by a husband of policies of insurance on his own life to his wife was fraudulent and void as against the creditors of the husband who were such at the time of the assignment. Then followed the Act of 1868, which declared that policies of life insurance and annuities taken out for tlie benefit of, or bona fide assigned to, the wife, or children, or dependent relatives of the person insured, should be vested in them free and clear from all claims of the creditors of such person insured. The mischief which was intended to be cured was the insecurity of property in life insurance policies and annuities held by the donees named in' the act, respectively, by reason of the claims of the creditors of the donors. The remedy provided was not the exclusion of the rights of the donor under the intestate laws, but exemption from all claims of the creditors of the donor. Nothing is said with reference to rights of inheritance or succession. No intention is manifested to change or interfere with the intestate laws. The act provides no new mode of distribution. The plain and obvious reasoning of the words used limited the operation of the act to the protection of the property of the beneficiaries from the attack of the creditors of the party insured. A verbis legis non est reeedendum: Bradbury v. Wagenhorst, 4 P. F. Smith 182; Lee v. Forman, 3 Metc. 114; McAfee v. Railroad, 36 Miss. 669. It was thought necessary in a subsequent statute (Act May 1st 1876, § 25, Pamph. L. 60), to introduce an express provision excluding the husband from participation in policies of insurance on his own life, held by his wife and issued under the provision of that act. This was an intimation that the two acts were to have a different meaning: Rich v. Keyser, 4 P. F. Smith 86.</p> <p>“ If then the object of the Act of 1868 was the protection of a certain class of interests, it would seem to follow that that protection could be invoked no longer than the interest came within the purview' of the act. When the interest ceased the protection would necessarily end. It is not denied in the present proceeding that Mrs. Anderson was, in her lifetime and at her death, the sole owner of this policy. She was, therefore, the only one who was entitled to the protection of the Act of 1868. When she died her interest in the policy passed, under the intestate laws, to other parties, and there was no more reason for the continuance of the protection of the statute than if she had assigned the policy in her lifetime. So long as the property continued to be vested in her, it was under the protection of the statute but no longer.</p> <p>“ The policy wrns not taken out for the benefit of or bona fide assigned to Miss Grace Anderson. The testimony shows that an entirely independent, but similar provision was made for her in the lifetime of her mother; but she was not mentioned by name, nor described in the policy in evidence here. Mrs. Anderson was the sole and absolute owner and, had she survived her husband, would have had the complete disposition of the proceeds in her power. She could have shared with her daughter or with a stranger. In any event Miss Anderson would not, in all probability, have gotten more than half the proceeds and that as a mere gratuity. The only right which she ever had in this policy or its proceeds, she derived under the intestate laws on the death of her mother. Her interest in the policy is not such as would be subject to the claims of the creditors of the ‘person insured.’ She is therefore not such a party as can claim the protection of the benefit of the Act of 1868.</p> <p>“Nor has Miss Anderson any equity as against her father’s creditors. The record does not show when Mr. Anderson became insolvent; but it is fair to presume that his failure was gradual and this policy was kept alive, latterly, with the money of his creditors. His creditors, therefore, have a just claim to part of the proceeds of the policy. It is better to be just than generous.</p> <p>“ These considerations lead to the conclusion that the fund in the hands of the accountant should be divided amongst the representatives of W. J. Anderson, deceased, and Miss Grace Anderson, ‘share and share alike.’ ”</p> <p>From this decree both parties appealed.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1877, No. 10.</p> <p>Assumpsit by Carroll & Co., against J. S. Adams, Adam Jacobs and James Collins, as owners of the steamboat Glasgow, for work done and material furnished to the boat. The action was brought in December 1873, and Adams alone defended, pleading non-assumpsit, payment with leave, &c., and the Statute of Limitations.</p> <p>At the trial the plaintiffs produced an account against the steamboat, which commenced to run on the 27th of March 1867, the charge for that date being $470.98, another on March 30th 1867, of $60, and another on March 31st 1868, of $4.44, making at the latter date an aggregate of $535.42. Several other charges follow, commencing again on June 3d 1868, and closing January 12th 1870, the whole account, exclusive of interest, amounting to $1401.94. In this account five credits of $200 each were given, the first on July 26th 1867, and the other four from and after June 6th 1868. A certified copy of the enrolment of the statute in the office of the collector of customs was then offered in evidence and the plaintiffs closed.</p> <p>The defendant then put in evidence a certified copy of a bill of sale, which was duly acknowledged and recorded in pursuance of the provisions of the Acts of Congress 'of July 29th 1850, and March 3d 1865, Revised Statutes of the United States, page 813, as follows:</p> <p>Sect. 4192. No bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, hypothecation, or conveyance is recorded in the office of the collector of the customs where such vessel is registered or enrolled. The lien by bottomry on any vessel, created during her voyage, by a loan of money or materials necessary to repair or enable her to prosecute a voyage, shall not, however, lose its priority, or be in any way affected by the provisions of this section.</p> <p>Sect. 4193. (Act of 3d of March 1865.) The collectors of customs shall record all such bills of sale, mortgages, hypothecations or conveyances * * * in books to be kept for that purpose, in the order of their reception; noting in such books, and also on the bill of sale, mortgage, hypothecation or conveyance, the time when the same was received * * * but no bill of sale, mortgage, hypothecation or conveyance of any vessel shall be recorded, unless the same is duly acknowledged before a notary public or other officer authorised to take acknowledgments of deeds.</p> <p>Sect. 4194. (Act of July 29th 1850, s. 8.) The collectors of the customs shall keep an index of such records, inserting alphabetically the names of the vendor or mortgagor, and of the purchaser or mortgagee, and shall permit such index and books of records to be inspected during office hours, under such reasonable regulations as they may establish, and shall, when required, furnish to any person a certificate, setting forth the names of the owners of any vessel registered and enrolled, the parts or proportions owned by each. * * *</p> <p>This bill of sale showed that on the 21st of March 1868, the interest of Adams in the steamboat, which was one-third thereof, was sold to Collins.</p> <p>In rebuttal, the plaintiffs testified that they knew nothing of this sale of Adams’s interest until after suit brought. They also testified, which Adams denied, that the latter had given orders for repairs after April 8th 1868.</p> <p>The defendant’s first point and the answer of the court thereto are herewith appended.</p> <p>1. That the bill of sale by Adams of his interest in the steamboat Glasgow, dated the 21st day of March 1868, and acknowledged and recorded on the 8th day of April 1868, was full and sufficient notice to the said plaintiffs, from and after the date of recording; that said Adams had disposed of all his interest in said steamboat to James Collins, the vendee, and that he, Adams, had ceased to be a part owner of said boat.</p> <p>Ans. “ This point, as presented is refused. Such an enrolment, such a sale, such a record, would be notice to all the world, except parties who had been trading with and keeping an account at home with this boat. In that respect they do not differ from an ordinary partnership, and the rule in that case is very clear. If A., B. & C., forming a firm, dissolve, and publish the dissolution in all the papers, or two or three of the papers of the city of Pittsburgh, it is notice to all the world except those with whom they have been actually trading; but those with whom they have been in the habit of having running accounts and trading back and forward, are entitled to special notice of the dissolution, or proof that this notice lias been brought under their observation or consideration. Therefore the point is refused as presented, but it is affirmed except as to parties having a continuous and running account with the said boat.”</p> <p>His second point, which was as follows, was refused: That the credits for moneys paid in plaintiffs’ account show that all the indebtedness of said steamboat, or the owners thereof, on account of said steamboat, existing at the time of the execution of said bill of sale and record thereof, has been fully paid.</p> <p>And the court, in their general charge to the jury, said, “If you should find that this claim now sued upon is so barred by the statute — in other words, that the last item of it (it being a running account) was not charged six years prior to the bringing of the suit — there can be no recovery; but it being a running account and credits given from time to time, the statute will only commence to run at the expiration of the time from the last item. If, therefore, you find' on an examination of the account that the debt was incurred six years before the last item sued for, then there ought to be no recovery, and your verdict -should be for the defendant.”</p> <p>The verdict was for plaintiffs, and Adams took this writ, assigning for error the foregoing answers of the court to his points and the portion of the general charge noted.</p>

<p>1. Under tlie authority, conferred by the Act of April 1st 1870, to extend and widen certain streets, the city of Allegheny eannot widen, as one of its j streets, a turnpike toll-road within its limits and assess the cost on the property abutting thereon.</p> <p>2. In a scire facias upon a municipal claim, founded upon an assessment in pursuance of said act, the defendant is not estopped from setting up this defence, because not taken before the confirmation of the report of the viewers.</p> <p>3. Wilson v. The City of Allegheny, 29 P. F. Smith 272, followed.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1877, No. 186.</p> <p>Scire facias sur mortgage issued by John H. McMasters and wife for use of Martha Parsons against Henry Wilhelm.</p> <p>About the 12th of August 1878, McMasters and his wife conveyed to the defendant certain lots of ground for $4500, of which $1500 were paid in cash, and the balance $3000 secured by bond and mortgage on the premises. The mortgage was made to Mrs. McMasters, who owned the property and was then and is still a feme covert. On August 25th 1873, the mortgage was assigned by McMasters and his wife to Mrs. Martha Parsons. This assignment was acknowledged on the same day, and recorded on the 9th of September 1873. |</p> <p>The mortgage not being paid according to its terms this suit was brought, and defendant filed an affidavit of defence, which set forth that, “ he has a good legal defence to at least $2000 against plaintiffs’ claim, which consists in this, viz.: That he has paid $90 on account of the plaintiffs’ claim, for which he has got no credit; and further, that the mortgage sued on in this case was given for a balance due on the purchase-money of certain lots therein described, the whole purchase-money being $4500, $1500 having been in cash, and there being in all thirty-six lots. It was agreed at the time of this purchase, that in case the said defendant should desire to sell any of said lots, that the plaintiffs would release the morfc gage from the lots so sold, on receiving a reasonable amount of the purchase-money, so as not to. unreasonably reduce their security for the remaining part of the purchase-money. That a short time after the giving of the mortgage defendant sol/i thirteen of the least valuable of the lots to one E. P. Pingen, and offered to pay plaintiffs $1000 on account of the said mortgage, and requested them to release the lien of the mortgage from the thirteen lots so sold, as they by agreement were bound to do, and which they refused to do, by reason whereof this defendant was sued by said Pingen for not making good title to the lots so sold him, and a recovery of $1500 was had against this defendant. The defendant further says, that the twenty-three lots remaining unsold, were ample security for the remaining $2000 due on said mortgage, and constituted more than three-fourths in value of the entire purchase. By reason of the failure of plaintiffs to release the said thirteen lots as requested, defendant believes he has sustained, in addition to the damage of Pingen’s recovery of $1500, at least $500 and upwards, and in all at least $2000.”</p> <p>Plaintiffs tendered credit for the $90 which defendant claimed to have paid, and entered a rule for judgment for the balance for want of a sufficient affidavit of defence.</p> <p>The court considered the affidavit sufficient and discharged the rule, to which judgment this writ was taken.</p>

1, of Allegheny county : Of October and November Term 1877, No. 207. Trover and conversion by Emil Schalk, trading as Emil Schalk & Co., against David Hostetter, to recover the value of three thousand barrels of oil. There was but one question passed upon by this court, and the facts bearing thereon are sufficiently stated in the opinion.

1, of Allegheny county: Of October and November Term 1877, No. 115. Assumpsit by James B. Meanor, administrator c. t. a. of the estate of Eliza E. Meanor, deceased, against Josiah W. Guy, and Conrad Beringer. Mrs. Meanor died in May 1872, seised in fee of a farm subject to a mortgage in favor of Guy for $3196.93, and interest from June 15th 1871. In her will she made her husband, Davison Meanor, her executor, with power to sell the farm.

<p>Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1877, No. 273.</p> <p>This appeal was from the decree of the court making distribution of the proceeds of certain bank stock in the hands of the executors of John Freeman, deceased.</p> <p>John Freeman died in 1846, leaving a will, which contained the following provisions:—</p> <p>“ I do hereby give, devise and bequeath to my beloved wife, Ann, all those two several brick dwelling-houses and lots on Federal street, in the city of Allegheny, adjoining each other, and in one of which I now reside, together with ninety shares of the capital stock of the Exchange Bank of Pittsburgh, belonging to me, to have and to hold and enjoy the rents, issues and profits of the said houses and stock for and during the term of her natural life. And I do moreover give and. bequeath to her my said wife, the sum of two thousand dollars in cash, to be paid to her by my executors as soon as convenient after my decease; and also, all my household and kitchen furniture, of every description whatsoever — the said money and furniture to be enjoyed and disposed of by her as her own absolutely.</p> <p>“ And in regard to the residue of my estate, real and personal, which may remain after satisfying the above devises and bequests, I do hereby order and direct that after the payment of my just debts and funeral expenses thereout, the same shall descend and be divided in the same manner and proportions as is directed by the laws of Pennsylvania in cases of intestacy, saving, however, my wife’s interest therein; it being my express intention that the foregoing devises and bequests shall not be in lieu of her said interest, but in addition to, and independent thereof.”</p> <p>The deceased left a large real and personal estate, in addition to the special provision for his wife, which residue was divided among the widow and heirs in accordance with the intestate laws.</p> <p>Moses Underwood, surviving husband and general legatee of the widow of John Freeman, deceased, claimed one-half the bank stock bequeathed to Ann Freeman, for life.</p> <p>The court, Ewing, J., specially presiding, in dismissing Underwood’s exceptions to the account of the executors, said:—</p> <p>“ Reading the whole will of John Freeman in the light of the surrounding circumstances, I am satisfied that the intention of the testator was to limit all interest of his wife in the two houses' and the bank stock in question to the duration of her life. The saving clause in favor of the wife’s interest is referable wholly to the large real and personal estate not specified in the will. The exceptant Moses Underwood is not entitled to any part of the bank stock or its proceeds.”</p> <p>Underwood then took this appeal.</p>

<p>1. An assignment for tlie benefit of creditors vests the title forthwith in the assignee though ignorant of the assignment.</p> <p>2. The moment an assignment for the benefit of creditors is placed by tho assignor, or any one interested, in the office of the recorder of deeds of the proper county and within the prescribed time, the beneficial interest of the creditors, tho ceskiis que irustent, is completely vested and it is totally immaterial when the assignee accepts tho trust or whether he over accepts it.</p> <p>3. Such assignee by virtue of the assignment and as a trustee for the creditors, has the right to assert his and their right to any property of the assignor which passed by the assignment against any person claiming by subsequent transfer, attachment, judgment, execution or any other lien.</p> <p>4. Read v. Robinson, 6 W. & S. 329; Blight v. Schenck, 10 Barr 285, and Johnson v. Herring, 10 Wright 415, followed.</p>

<p>1. As a general rule, an action on a contract must be brought in the name of the party having the legal interest therein.</p> <p>2. A third party may maintain an action in his own name upon a contract made expressly for his 'benefit where his release would he a sufficient discharge to the promisor, but not where it would leave the promisor liable to an action by the other contracting- party.</p> <p>3. An incoming partner may undoubtedly by agreement become liable for debts contracted by the firm previous to his entering it, but the presumption of'law is against any such liability and requires proof to remove it.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 229.</p> <p>Action on the case for deceit, by Bradner & Hartman, against William Dilworth. The plaintiffs, in their declaration, averred that the defendant had falsely and deceitfully, and for the purpose of defrauding plaintiffs, alleged “ that he was good and solvent, and able to pay for what he bought.”</p> <p>Dilworth, the defendant, was for many years extensively engaged in the lumber business. In the year 1875 he was the owner of|large amounts of real estate, situated in different parts of the city of Allegheny, in the counties of Jefferson, Eorest and.Clarion, in West Virginia, and in Michigan. In July of that year he bought a bill . of lumber from Bradner & Hartman, and, in answer to questions put to him by one Willey, plaintiffs’ agent, stated that he was solvent, t and able to pay for the lumber; that he was as good as any of the persons named by Willey as having made bids for the lumber. The lumber was sold to Dilworth on a year’s credit, and he gave a note for the amount. Willey did not demand security, nor did he ask Dilworth whether he was indebted to any one. The sale was consummated on or about the 10th day of July, and on the same day the note in payment was given. On the 17th day of August of the same year, Dilworth filed his voluntary petition in bankruptcy, showing a large indebtedness, and that his real estate was, in most instances, mortgaged. He subsequently offered those of his creditors who were unsecured, including the plaintiffs, twenty-five cents on the dollar. On the trial the plaintiff showed the foregoing facts, and rested.</p> <p>The defendant testified, that at the time he bought the lumber he considered himself perfectly solvent; that while he owed largo sums of money, he owned many large and valuable tracts of real estate, which, in his opinion, exceeded in value all that he owed. He also testified that he was compelled to go into bankruptcy unexpectedly, by reason of failing to sell a valuable lot to the Allegheny Gas Company for the sum of $65,000 — a sale that he had fully expected to make, and which would have paid off the mortgage against that lot and given him cash enough to meet certain notes that were about to fall due ; that he was advised to go into bankruptcy, in order to prevent judgments being obtained by some creditors to the detriment of others; that he desired to return the lumber to the plaintiffs, but that his attorney advised him that such a course would not be legal.</p> <p>The first point of defendant, which the court, Collier, J., refused, was as follows:—</p> <p>Under the pleadings and evidence, the plaintiff's have failed to make out a case of fraudulent intent on the part of the defendant, and the plaintiffs are not entitled to recover.</p> <p>His fourth point was :—</p> <p>That if the jury believe that the defendant, at the time of using the statements attributed to him, really believed himself to be solvent, then his subsequent bankruptcy and insolvency, as matters of fact, do not avail to make the defendant liable in the present action, and their verdict should be for the defendant.</p> <p>To which the court answered: “ Affirmed, with the qualification that if he really believed himself to be solvent upon reasonable grounds, then ho would not be liable.”</p> <p>The verdict was for plaintiffs for $6057.81.</p> <p>The defendant, after judgment, took this writ and assigned for error, inter alia, the qualification of the court in the answer to his fourth point.</p>

1, of Allegheny county: Of October and November Term 1877, No. 151.

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 158.</p> <p>Assumpsit by William League against E. J. Waring & Co.</p> <p>On the 8th of December 1873, League entered into a written contract with E. J. Waring & Co., to deliver to them 12,000 oil barrels during the year 1874. The barrels were to be delivered at the rate of 500 barrels during the first and last half of each month. Payments were to be made on each 500-barrel lot as delivered, with thirty-day paper drawn on Waring Bros. & Co., Philadelphia.</p> <p>League received from E. J. Waring & Co., for barrels delivered under the contract in the month of November, the draft of Waring Brothers on Waring, Bros. & Co., of Philadelphia, accepted by them, dated November 5th 1874, payable ninety days after date, for $2440. On the 4th day of January 1875, and before this draft matured, both Waring Brothers, and Waring Bros. & Co., failed, and went into bankruptcy. The draft was protested for non-payment, and this suit was afterwards brought to recover from E. J. Waring & Co., on the contract, the price of the barrels so delivered. E. J. Waxing composed the firm of E. J. Waring & Co., and had his office in the same room, on Fifth avenue, Pittsburgh, with Waring Brothers. 11. J. Waring and O. S. Waring, brothers of E. J. Waring, were the members of the firms of Waring Brothers, and of Waring Bros. & Co., of Philadelphia.</p> <p>All the drafts received by League for barrels were delivered to him by E. J. Waring, at his office and the office of Waring Brothers, on Fifth avenue.</p> <p>The drafts were negotiated by League as soon as received, and he was not aware that E. J. Waring & Co. were not liable on the drafts, until after the failure of Waring Bros, and Waring Bros. & Co. He did not know that E. J. Waring was not a member of these firms, and was never informed by him that he was not liable on the drafts. The drafts were made out by the direction of E. J. Waring, and wore delivered by him.</p> <p>It was contended, on behalf of the plaintiff, that under the contract, payments were to be made with the paper of E. J. Waring & Co., drawn on Waring Bros. & Co., of Philadelphia; that the debt was incurred when the contract was made, December 8th 1873, and that the acceptance by League of the draft of Waring Brothers on Waring Bros. & Co., on the 5th of November 1874, operated only as a conditional payment of the debt, it being payment of a pre-existing debt with the draft of a third party, and that it should be left to the jury to find, from the evidence in the case, whether or not the draft was accepted as absolute payment.</p> <p>The plaintiff’s first point, which the court, Stowe, P. J., refused, will be found in the opinion of this court.</p> <p>His second point, which the court also refused, was as follows: That the presumption is that the drafts received by League wore received only as conditional payment, and the burden of proof is on the defendant to satisfy the jury, by the weight of evidence, that it was the intention of the parties, or the agreement or understanding between them, that the drafts were received as absolute payment.</p> <p>The verdict was for the defendants, and plaintiff took this writ, assigning for error the refusal of his points.</p>

40. Case by Harriet J. Caulkins against the city of Erie to recover damages for injuries received from falling over an obstruction in the street and partially into a sewer then in process of construction. In the fall of 1872, the city of Erie entered into a contract with Peter Grant to construct a sewer in State street in said city. While being constructed, the plaintiff in passing across said street fell over an obstruction into said sewer injuring her wrist and arm.

155. Replevin by Samuel W. Stewart and Francis Merrick, against Wilkinson, Carter & Co., for 4100 barrels of crude petroleum, valued at $9225. In the early part of 1874 Stewart & Merrick stored about 17,000 barrels of crude petroleum in an oil tank of about 20,000 barrels 'capacity, called the “ Caledonia tank,” which they purchased from Johnson & Co. In this tank there were also about 2000 barrels of oil belonging to Johnson & Co., which plaintiffs agreed to store for them.

<p>A railroad company in constructing their road appropriated a portion of the bed of a public road, removing a bridge which crossed a stream at the point taken. Upon the failure of the company to rebuild the bridge the road commissioners let the work to a contractor, who commenced the erection of a new bridge, which when nearly completed was torn up by the employees of the company and the contractor driven from the work. There was evidence that the superintendent of the railroad had assented to the location of the new bridge, which he denied. The contractor brought an action of trespass, and the court instructed the jury to find for defendants, on the ground that the contractor had no authority under the contract from the road commissioners to enter on defendant’s premises and construct the bridge. Held, reversing the coui't below, that it was for the jury to decide what was the extent of the authority and agreement of the superintendent, and if such authority and agreement were proved the plaintiff could recover.</p>

<p>1. Where a jury is dispensed with and the cause submitted to the court under the provisions of the Act of April 22d 1874, the facts found by the court, so far as they are material to a just decision of the cause, should be separately and distinctly stated, with at least as much precision and particularity as are required in a special verdict; and after answering the points, if any are submitted, the conclusions of law, applicable to the facts, should be clearly stated.</p> <p>2. Defendants contracted to rebuild a mill, “to be furnished with machinery in all respects similar to that in the mill burned.” Plaintiff contended this was intended to mean all the machinery in the mill, whether in use or not. The court found that nearly all the machinery for which plaintiff claimed damages had gone out of use or been laid aside, and that the only machinery in contemplation of the parties was that in actual use when the fire occurred, and that having been placed therein the contract was substantially performed. Held, not to be error.</p>

<p>Error to the Court of Common Pleas of Erie county: Of October and November Term 1877, No. 145.</p> <p>Assumpsit by S. S. Caughey and LI. B. Fleming, administrators of Joseph Neeley, deceased, to recover the amount unpaid, with interest, on the following note:—</p> <p>“ §900. Erie, Dec. 24th 1867.</p> <p>“ On the 1st day February 1869, we promise to pay, to the order of Joseph Neeley, nine hundred dollars; it being for use of First Baptist Church. Value received.</p> <p>W. J. F. Liddell,</p> <p>Horace L. White,</p> <p>James D. Boss,</p> <p>Samuel Z. Smith.</p> <p>Trustees of the First Baptist Church, Erie, Penna.”</p> <p>The remaining facts are sufficiently stated in the opinion of this court.</p> <p>The defendants resisted the claim on the ground, first, that under the charter of the church the trustees had no authority to execute such an obligation as the one in suit, nor to borrow money; and, secondly, that the money was for the payment of a note previously given by W. J. E. Liddell, one of the trustees, to one Catharine Smith, for money borrowed from her by him individually, and with which he paid a subscription he had made towards the building-fund of the church.</p> <p>On part of the plaintiff it was contended that, whether the trustees had the right to bind the church by such an obligation, or not, yet, if the money obtained from Mr. Neeley by the trustees was actually used in the construction of the church edifice, the church receiving the benefit of the same, there would be an implied obligation to pay, and plaintiff should be entitled to recover under the general indebitatus assumpsit counts in their declaration.</p> <p>The court, Galbraith, P. J., in the general charge said:—</p> <p>“ This I conceive to be a correct position. The trustees of a corporation may not bind it by such specialty containing such stipulations as these, in the absence of some express authority contained in the charter; but there are implied as well as express powers incident to every corporation; and in this case, if the jury believe from the evidence that the money for which the note was executed by the trustees was used by them, or by other officers of the church, in rebuilding the church building, and so went to the benefit of the society, then the law raises an implied obligation in equity and good conscience, as well as in law, on part of the church to repay it, and the verdict should be for plaintiff. If, on the contrary, the jury believe from the evidence that the money went to pay a debt of W. J. F. Liddell, one of the trustees who signed the note, the fact that the money for which the debt of Liddell was contracted was paid into the church treasury on a subscription made by him individually towards the building-fund, would not relieve the transaction or change its character, and plaintiff could not recover. The jury will decide as they find the weight of evidence upon this fact, and give their verdict accordingly.”</p> <p>The verdict was for the plaintiff, and after judgment the defendant took this writ, assigning for error the admission of the note in evidence and the foregoing charge of the court.</p>

<p>Error to the Court of Common Pleas of Erie county: Of October and November Term 1877, No. 62.</p> <p>Case by William Mallory and Hannah, his wife, in right of the wife, against Benjamin Griffey, for injuries sustained in being thrown from a buggy, by reason of an alleged obstruction placed upon the highway by defendant.</p> <p>At the trial, before Vincent, P. J., it appeared that Mrs. Mallory was driving a horse and buggy along a road which passed the residence of defendant. On this road the latter had placed a lot of building materials preparatory to building a barn. Among these materials was a large stone, at which, it was alleged, the horse of Mrs. Mallory took fright, and shying, threw her from the buggy, seriously injuring her. The horse was a gentle and manageable one, and had been driven at various times by the different female members of Mr. Mallory’s family. The materials were placed on the road on Saturday and were removed on the following Tuesday, and only partly obstructed the road, leaving sufficient space for vehicles to pass.</p> <p>The fourth and ninth points of defendant, both of which the court affirmed, were as follows:—</p> <p>4. That if there was any negligence on the part of plaintiffs, that contributed to the accident, then the plaintiffs cannot recover.</p> <p>9. That if the plaintiffs have not shown affirmatively that their own negligence did not contribute in any degree to the injury, the plaintiffs cannot recover.</p> <p>The court, in their general charge, said:—</p> <p>“ The defendant has a right to place building material upon the highway, and occupy a reasonable portion thereof, for the purpose of building, leaving ample room for the passage of animals and vehicles; and he had a right to let the material remain there for a. reasonable length of time, nor will he be answerable for consequences to others by reason of so using a portion of the public highway ; he will, in such a case only be answerable for injuries ai’ising from an unreasonble or negligent use of it.</p> <p>“ If the defendant placed the stone in the highway on Saturday evening, and moved it away Tuesday following, it would be difficult to see how that length of time could be called unreasonable. If he left ample space between the stone and the timber, as placed by him, for the passage of horses, wagons, &c., he did, as far as that is concerned, all that the law required him to do, and if you so find from the testimony, the plaintiff cannot recover, unless in some other way he was negligent.”</p> <p>The verdict was for defendant, and the plaintiffs, after judgment, took this writ, his assignments of error being 3, the answer to defendant’s fourth point; 8, the answer to his ninth point, and 11 and 12, the foregoing parts of the charge.</p>

<p>The Act of April 15th 1834, provides a specific remedy for charging county officers with public moneys through the county auditors, and gives sixty days for an appeal from their decisions. Held, that after the expiration of the time given for an appeal the decision of the auditor is final.</p>

<p>Error to the Court of Common Pleas of Erie county: Of October and November Term 1876, No. 128.</p> <p>Replevin by the Lake Shore and Michigan Southern Railway Company, against George W. Elisey, for certain stoves delivered by plaintiff to defendant.</p> <p>In 1872, the Treadwell Stove Company of Albany, New York, shipped seven stoves over the road of plaintiff, marked by tags or cards on the stoves, “ G. W. Elisey, Auctioneer, Erie, Pa.” The shipping bill read that they were shipped, “ subject to the order of C. R. Redfield, Erie, Pa.” The stoves remained in the warehouse of plaintiff until the 6th of January, when Elisey gave an order to a drayman for them, and they were delivered to him by the agent of the company. In February, Redfield demanded the stoves, and ordered them to be returned to the stove company. The plaintiff tendered to defendant the freight and other charges he had paid and demanded the stoves, which he refused to deliver. This replevin then issued, and three of the stoves were returned to plaintiff. The defendant testified that he had never heard of Redfield before this transaction, and there was no allegation that he had not acted in good faith. It was alleged also that defendant had agreed to return the stoves on repayment of the freight and charges.</p> <p>The court affirmed the following points of plaintiff: — •</p> <p>1. If the stoves wore shipped to the order of C. B. Redfield, and by mistake were delivered to the defendant without such order, then, on tender to him of the freight and cartage he had paid, the plaintiff had such a property as entitled them to maintain this suit, and can recover.</p> <p>2. If Elisey promised to deliver the stoves on payment of the freight which he had paid, and plaintiff tendered him the freight and cartage before suit, the plaintiff is entitled to recover.</p> <p>And refused the following of defendant</p> <p>1. To sustain the action, the plaintiff must show a property in the goods, either general or special, and a right to the possession.</p> <p>2. If the plaintiff at any time had a lien or special property upon or in the goods, it was defeated by giving up the possession to the defendant, and if the possession is once waived it cannot afterwards be resumed.</p> <p>In charging the jury, the court, Yincent, P. J., said:—</p> <p>“ The plaintiff cannot recover in this form of action unless it had a right to the possession of the stores replevied at the time of issuing the replevin as against the defendant. The plaintiff was not the actual owner of the stoves when they were delivered to the defendant; it had but a qualified property in them by virtue of its lien for freight, &c., but it had a right'to hold them and was bound to do so until the order of Redfield was presented for their delivery.</p> <p>“ But the plaintiff could waive its right to retain the goods under its lien for freight, and if it gave up the possession, either with or without the payment of freight, without fraud on the part of the consignee, it gave up all right to re-possess itself of the property as against such consignee, and the fact that they had no right to so deliver them to the defendant, gives them, in our opinion, no right to recover them or their value in this form of action.”</p> <p>The verdict was for the defendant, and after judgment, the plaintiff took this writ assigning, inter alia, this charge of the court for error.</p>

<p>-^e wa*er commissioners of the city of Erie, by virtue of the Act April 4th are a board wholly independent of the city authorities, and the city is liable for an accident arising from the negligence of said commissioners.</p>

<p>The land upon which a church is being erected is not exempt from taxation under the provisions of the Act of May 14th 1874, which exempts “ churches, meeting-houses or other places of stated worship.”</p>

<p>1. Where it is alleged that an injury arose from negligence the question of the proximate cause is to be decided by the jury upon all the facts of the case, but where the facts are undisputed, and the intervening agency is manifest, it is not error for the court to withhold the evidence from the jury.</p> <p>2. In determining what is proximate cause, the true rule is, that the injury must he the natural and probable consequence of the negligence, such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer as likely to flow from his act.</p> <p>3. Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353, followed. Pennsylvania Railroad Co. v. Hope, 30 P. F. Smith 373, and Raydure v. Knight, 2 W. N. C. 713, distinguished.</p>

<p>Error to the Court of Common Pleas of Clarion county: Of October and November Term 1877, No. 138.</p> <p>Assumpsit by Patrick Dorsey against William M. Abrams and others, trading as the Citizens’ Saving Bank, on a check, a copy of which will bo found in the opinion of this court.</p> <p>Demand was made for the payment of this check on the 10th of January 1876, which was refused. At the trial before Jenks, P. J., there was evidence to show that the certificate of Mr. Foster was a forgery, and also that by his subsequent acts and declarations, he had recognised and confirmed his certificate.</p> <p>It was also in evidence that Foster had, at other times, certified checks; but it did not appear that they were other than ordinary checks received in the usual course of business.</p> <p>It was admitted that when McCullough drew the check he had no funds in the bank, and no right to draw.</p> <p>Among the points submitted by plaintiff were two which embraced substantially these propositions: First, that if Foster ratified the endorsement of the check, such act would amount to an acceptance of the check, and plaintiff- is entitled to recover; and, second, if the jury believe, from the evidence in the case, that the managers of the bank had knowledge that Foster, their cashie was certifying checks for their customers to give such custom credit in the oil market, and did not promptly repudiate such act, they would be bound by such certificate, whether the act was within the scope of the cashier’s authority or not.</p> <p>Both of these points the court refused.</p> <p>Two of defendant’s points were as follows:—</p> <p>1. That as there is no sufficient evidence that the cashier of the bank had authority to accept a draft as security for the oil to be delivered, the plaintiff cannot recover; and</p> <p>2. That under all the evidence in the case the plaintiff cannot recover; which the court answered, in their general charge, as follows:—</p> <p>“ The certification of a check written out would contain a statement that the drawer had funds sufficient to meet it in the bank, applicable to its payment, and an agreement on behalf of the bank that these funds should be retained and paid upon the check whenever it was presented. The cashier has a right, by virtue of his office, to make this certificate when the drawer has funds: Cooke v. The Bank, 52 N. Y. 96. [Even if the drawer had no funds we apprehend that the certificate of the cashier would hold the bank when the transaction was within the range of its legitimate business, but the acts of the cashier, or other officer of the bank, only bind the stockholders when such acts are within the regular and just sphere of banking transactions : Lloyd v. West Branch Bank, 3 Harris 172. We do not think this transaction within such a sphere. The certificate of the cashier upon the paper upon which suit has been brought would not, therefore, bind the stockholders, without proof that they authorized him to make such certificate, or without proof of such usage and practice on the part of the cashier as would justify third persons in believing that such usage was authorized.] Plaintiff having failed in proving such authority or usage, we answer defendants’ second point in the affirmative. We also answer defendants’’ seventh point in the affirmative. As this disposes of the case, further answer to points of either plaintiff or defendants is unnecessary.</p> <p>The verdict was for the defendants, and, after judgment, plaintiff took this writ, assigning for error the portion of the charge noted in brackets and the refusal of his points.</p>

<p>1. A paper was taken from the register’s office in 1852 which purported to be a will, but about the probate of which there was grave doubt. The subscribing witnesses had testified to its execution and their affidavit was endorsed thereon by the register. It was, however, neither filed nor recorded and was taken from the register’s office. Twenty-four years thereafter it was directed to be filed and recorded by a judge of the Common Pleas. Held, that this was an undue exercise of judicial discretion.</p> <p>2. The rule that if one party pay money to another for the use of a third person, or having money belonging to another, agrees with that other to pay it to a third, an action lies by the person beneficially interested, does not apply where the contract is for the benefit of the contracting party and the third person is a stranger to the contract and consideration ; the action then must be by the promisee.</p> <p>3. Whore the contract leaves the promisor subject to a suit by the promisee or his personal representatives, and likewise to a third person beneficially interested, the latter cannot maintain an action.</p> <p>4. A legatee cannot maintain a common law proceeding against the debtor of his testator’s estate.</p> <p>5. Blymire v. Boistle, 6 Watts 482, followed.</p>

<p>1. One joint owner of a chattel may maintain trover against his fellow if the latter so dismantle or dispose of the property as to render it unfit for the use for which it was designed.</p> <p>2. Defendant was joint owner of an oil-well and the machinery used in working the same. lie sold part of the tubing, caused another part of the machinery to be removed and applied to his own use, and sold the boiler for old iron. Held, that this misuser of the property practically worked its destruction, and the other joint owners could maintain trover against defendant therefor.</p>

<p>Error to the Court of Common Pleas of Armstrong county: Of October and November Term 1876, No. 230.</p> <p>Debt brought by John Parkinson, for the use of J. Overy and J. P. Coulter, against the city of Parker upon a bond, issued by the borough of Lawrenceburg, in Armstrong county. The borough of Lawrenceburg was incorporated 14th December 1870, by the Court of Quarter Sessions of Armstrong county, under the general borough laws of the Commonwealth. The city of Parker was incorporated by an act of the legislature, April 7th 1873, Pamph. L. 193. By that act the borough of Lawrenceburg was included within the corporate limits of the city of Parker and the city made liable for the debts of Lawrenceburg.</p> <p>The bond bore date November 21st 1872, for $500, with interest at eight per cent., and was signed by the burgess and clerk of the borough of Lawrenceburg, and sealed with its corporate seal.</p> <p>The defendant pleaded nil debet, want of consideration, set off, and specially, that the consideration of the bond sued on was a note executed by John Pai-kinson and D. L. Miller, officers of the Parker’s Landing and Lawrenceburg Water Company, which note was due and unpaid.</p> <p>It was contended that this plea of nil debet was bad, under the 65th rule of the Court of Common Pleas, which is set forth in full in the opinion of this court.</p> <p>At the trial the plaintiff put in evidence the record of the Court of Quarter Sessions incorporating the borough of Lawrenceburg, the charter of the city defendant, and the bond executed by the borough under its corporate seal.</p> <p>The defendant then moved for a nonsuit, on the ground that “ plaintiff has shown no authority for the issuing of the bond in suit,” which the court, McDermitt, P. J.,'entered and subsequently refused, on motion, to take off.</p> <p>Plaintiff then took this writ, assigning this action of the court for error.</p>

<p>Error to the Court of Common Pleas of Armstrong county : Of October and November Term 1877, No. 162.</p> <p>Ejectment by Thomas McLaughlin against Mary McLaughlin, for twenty-two aeres of land. Both parties claimed the land in controversy, under conflicting sheriffs’ sales made of it as the property of William McLaughlin. William McLaughlin was the husband of defendant, and on the 3d of April 1861 owned the land in dispute. On that day a judgment was entered against him in favor of J. E. Willis, to March Term 1861, No. 102. Upon this judgment a fi. fa. issued to June Term 1861, No. 78. Under this writ the sheriff levied (no date given) on said land, but afterwards endorsed, thereon “ This writ stayed by order of plaintiff’s attorney.” On the 30th of January 1862, in pursuance of a prsecipe from the plaintiff’s attorney, a certified copy of this fi. fa. was issued a,nd placed in the sheriff’s hands. Upon this copy of fi. fa. an inquisition was held, and the property condemned, which proceedings were duly approved by the court on their return thereto. A writ of vend, ex. then issued, and the property was sold to Willis, the plaintiff in the execution. At the time of said sale, William McLaughlin, the defendant in the execution, was in possession of the land, and by a written lease became thereafter the tenant of Willis, and so continued until his death, in 1864. After his death, his wife, Mary, the defendant, continued to reside on the land, as the tenant of Willis, until 1869, when, with her own means, she purchased the same, and received from Willis a "deed therefor.</p> <p>On the 21st of March 1861, a judgment was entered against William McLaughlin, in favor of John Hildinger, for use of Thomas McLaughlin, to March Term 1861, No. 170. Upon this judgment a scire facias to revive was issued to September 1863, upon which judgment was entered on September 19th 1863. On this a fi. fa. issued, and the sheriff levied on the interest of said William McLaughlin, in 'the land in dispute. An inquisition was held, and the property condemned, and after approval of these by the court a vend. ex. issued, a,nd the property was sold to Thomas McLaughlin, who brought this action.</p> <p>At the trial, the defendant made three offers which, in substance, were as follows : 1. To show judgment against William McLaughlin ; sheriffs sale afterward to Willis; sale by Willis to defendant; continued possession by her from time of purchase, and that she paid for land with her own money. 2. The fi. fa. and levy thereunder upon the land in dispute; its inquisition and condemnation, and the approval of the court; the vend. ex. thereon, to be followed by proof that at the time of the sheriff’s sale, under which plaintiff claims, public notice was given of the title to said land being in Willis, to show that at time of said sheriff’s sale to plaintiff William McLaughlin had no title to said land. 3. To show by witness that subsequent to the sale to Willis, William McLaughlin surrendered his possession and became the tenant of Willis, and that he was such prior to the sale to plaintiff; to show that said William McLaughlin acquiesced and ratified said sale to Willis, and to estop those claiming under him from disputing the validity of said sale to Willis. All these offers the court rejected, and they constituted respectively, the first, second and fifth assignments of error.</p> <p>The defendant submitted the following points, to which are appended the answers of the court:—</p> <p>1. That the return of the sheriff on fi. fa. No. 78, June Term 1861, stayed by order of the plaintiff’s attorney, neither vitiates nor destroys the levy endorsed thereon, but is merely a suspension for the time being of the execution of the process which may be resumed or renewed at the next or any subsequent term.</p> <p>“ Refused.”</p> <p>2. That the issuing of a copy of the fi. fa. is a resumption of process of execution at and from the point at which they were suspended, and being a mere continuance, the two papers are to be considered as one, and, if in form, the proceedings thereon are valid.</p> <p>“ Refused.”</p> <p>3. That the inquisition and condemnation made or held on that copy of fi. fa. are equivalent to the holding on the original writ after its return-day, and no objection being made to its approval by the defendant in execution, no person claiming under him can now ■ object.</p> <p>“ Refused; for the writ being stayed the copy is of no validity.”</p> <p>4. That the approval of the inquisition and the issuing of a vend. ex. by the court, and the acknowledgment of the sheriff’s deed, cures all defects in the execution or its process that could have been corrected by the court before the acknowledgment of the deed, and, if there was any in the writ upon which the sale to J. E. Willis was made, it was an irregularity and was cured by the acknowledgment of the deed.</p> <p>“Refused.”</p> <p>5. That the sheriff’s deed, under which the defendant claims title, being the elder of the two, divests the title of William M’Laughlin in the land, and the plaintiff to this suit derived no title by virtue of his sheriff’s deed to the land in controversy.</p> <p>Ans. “ As a general rule this is the law; but we think the sale to Willis was without authority of law, and thus explained the point is negatived.</p> <p>The court, McDermitt, P. J., after recapitulating the facts in evidence, in the charge to the jury, inter alia, said:—</p> <p>“ No authority has been cited, nor is any known to the court, as to whether a fi. fa. stayed by the plaintiff after levy, but before inquisition and condemnation can be the legal basis of a vend, ex., so that the sale thereon will vest title in the purchaser.</p> <p>“ The copy of the fi. fa., filed as before mentioned, affects the merits of the case in no conceivable way ; for a copy of the writ is as lifeless as the writ itself.</p> <p>“ A sheriff, in selling real estate, acts under a naked statutory power, and he who purchases under a power takes no title unless the power exists: Shields v. Miltenberger, 2 Harris 76; St. Bartholomew’s Church v. Wood, 11 P. F. Smith 96; Caldwell v. Walters, 6 Harris 79. The acknowledgment of a sheriff’s deed cures mere irregularities and non-essentials in the sale process, but not the want of authority in the sheriff: Shields v. Miltenberger, supra.</p> <p>“ Where a levy is set aside by the court, and a vend. ex. is issued without a fresh levy, a sale vests no title in the purchaser : Burd v. Dunsdale, 2 Binn. 80. The control of the plaintiff over his writ is the same, whether real or personal property is levied on. In Dorrance v. Commonwealth, 1 Harris 160, where personal property was the subject of the levy, the court says, ‘ It would hardly be contended that the plaintiff, or his attorney, has no control over the writ even after the return-day. He may, if he chooses, release the debt or waive the levy, either by a written or verbal order, and the sheriff would be bound to obey him.’ In Shryock v. Jones, 10 Harris 303, where the levy was on realty, the court says : ‘ Process is under the control of the party issuing it until the rights of others become vested. The plaintiff or his attorney may stay the writ at any moment before the sale, provided his dominion over it be so exercised * * * as not to mislead the purchaser * * * but whether it shall go on, or be stayed, is a matter over which the plaintiff has, while it is in fieri, absolute authority.’</p> <p>“A fi. fa. relied on as the basis of a vend. ex. is in fieri until the sale is consummated by the latter. When lands have been extended the defendant has vested rights of which the plaintiff cannot divest him by staying the writ: Miller v. Milford, 2 S. & R. 35.</p> <p>“ When the sheriff has not time between the levy and the return day to hold an inquisition, and the writ has not been stayed, it may be held after the return day: Weaver v. Lawrence, 1 Dal. 405. When the writ has been stayed by the court, or by the plaintiff, when he has the power to do it, inquisition cannot be had on it; for it is then as though never issued. True, a vend. ex. is in contemplation of law issued by command of the court, but there are some things a court cannot command a sheriff to do ; and among them is to sell real estate on a vend. ex. without a preceding and still living fi. fa. for its basis. Levy,' inquisition and condemnation are but the incidents of a fi. fa., and when it is stayed, so are they. The stream lives no longer than its fountain. A vend. ex. is the fruit of a living, not of a dead fi. fa. A stayed fi. fa. is dead.</p> <p>“ You are instructed, 1. [That the sheriff’s deed to Willis, under whom the defendant claims, vested no title in him.] 2. That if the evidence reasonably satisfies you that the sheriff’s deed to Thomas McLaughlin was for the land in controversy, then your verdict must be for the plaintiff. If it does not so satisfy you, then it must be for the defendant.”</p> <p>The verdict was for the plaintiff, and the defendant took this writ, and among the errors assigned were those heretofore noted, . and twelfth, to the portion of the charge in brackets.</p>

<p>Error to the Court of Common Pleas of Armstrong county: Of October and November Term 1877, No. 187.</p> <p>This was an appeal from the judgment of an alderman for $40, in favor of John II. Shoop, against the Union Express Company. Shoop filed a narr. in assumpsit, to which were filed the usual pleas, non-assumpsit, payment with leave, &c.</p> <p>The action was to recover the value of a box of furs, amounting to $26.25, shipped from Philadelphia, November 30th 1872, by W. V. Lippincott & Co., and consigned to John II. Shoop, Free-port. The shipment from Philadelphia was by the Adams Express Company, which line terminated at Pittsburgh, at which place the goods were transferred to the Union Express Company, its line running north of Pittsburgh, through the town of Freeport, the residence of the consignee. The substance of the shipping receipt will be found in the opinion of this court. The two express compapanies were wholly different and independent carriers. The relations of the two companies are shown in the following testimony of an officer of one of the companies :• — ■</p> <p>“ The same agreement exists between the Adams and Union Express companies that exists between all other forwarding companies, that each pays the charges of the other for all services rendered for them on their lines. The Union Express looks to the Adams Express Company for expressagc fees on packages expressed at Philadelphia to Freeport, when prepaid, and will have notice of the fact, providing the Adams Express Company prepays the Union Express Company in Pittsburgh her charge from Pittsburgh to Freeport. We settle between the Adams Express Company and Union Express Company every day. When the goods come from Philadelphia to Freeport, prepaid or not, we send them on as rapidly as possible.”</p> <p>In this instance the transportation charges were paid in Philadelphia to the Adams Express Company, but by some neglect of that company the fact of prepayment was neither marked upon the box nor upon the way-bill. The Union Express Company had no knowledge or notice of such prepayment, and the agent of said company at Freeport had no authority to deliver goods without the payment of the charges. On the arrival of the goods at Freeport, notice w7as given to the consignee, who sent his clerk for them; and although the plaintiff had the receipt of the Adams Express Company showing the prepayment' of the box, he at no time mentioned it or exhibited it to the agent. The agent refused to deliver the goods unless Shoop paid the charges or satisfied him that they were prepaid, stating at the same time that, if the charges had been prepaid, he would refund them to Shoop on being satisfied of' the fact. Shoop refused to pay the charges, but brought suit for the value of the goods, which remained in the office of the express company, unopened and uninjured.</p> <p>The fourth point of defendant was,</p> <p>“ That if the jury believe from the evidence that neither the waybill nor the box containing the plaintiff’s property, when delivered to’ the defendant at Pittsburgh by the Adams Express Company, presented any proper evidence, under the practice and arrangement of. the transportation .company, that the goods had been prepaid to Ereeport, in that event the defendant had a right to demand the payment of charges from the consignee at Ereeport, and upon his refusal to pay, hold the goods until such payment was made or satisfactory evidence furnished of prepayment in Philadelphia.”</p> <p>In reply to which the court, Boggs, P. J., said, “Answered in the negative, as explained in the general charge.”</p> <p>The portion of the charge alluded to was in these words:—</p> <p>“ If you find from the evidence this theory of the defendants to be true, and that the plaintiff had notice or knowledge, within a reasonable time, that the goods were at the office ready for delivery to him on payment of express fees, we instruct you that the agent of the defendants had no right to detain the goods, if it is true that the express charges were prepaid in Philadelphia; they Avere bound to deliver them in their usual way as soon as the goods arrived at the place of destination and the consignee called for the same."</p> <p>The verdict was for the plaintiff, and defendant took this Avrit, its sixth and thirteenth assignments of error being the refusal of the fourth point and the foregoing portion of the charge.</p>

<p>Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1876, No. 261.</p> <p>Covenant by Joseph H. Scott against Davis Shepler on the following instrument:—</p> <p>“Agreement made this 6th day of May 1874, by and between Joseph II. Scott, of Washington county, Pennsylvania, of the one part, and Davis Shepler, of Westmoreland county, Pennsylvania, of the other part, witnesseth, that the said party of the first part, for the consideration hereinafter mentioned, is to use his best endeavors to sell for the said second party one hundred and twenty six acres of coal, more or less, situate in Rostraver township, Westmoreland county, and in case of sale of said coal by said first party, or from his efforts to sell the same, the said second party hereby binds himself, his heirs and executors to pay to the said first party all that the said property shall be sold for over and above §50 per acre. In witness, the said parties have hereunto set their hands and seals this 6th day of May 1874.</p> <p>(Signed) Davis Shepler. [seal.'</p> <p>Joseph II. Scott, [seal.'</p> <p>Defendant pleaded non infregit conventionem, covenants performed absque hoc, &c.</p> <p>The facts are mainly stated in the opinion of this court.</p> <p>The second point of plaintiff, which the court, Logan, P. J., affirmed, was as follows: “If the jury find that the plaintiff was the procuring cause of the sale, he would be entitled to recover under his contract, unless it had terminated by lapse of time or was rescinded before the sale to Moses Scott.”</p> <p>In their general charge the court said:—</p> <p>“ There is, however, a further question, which is one particularly for you. The defendant, Davis Shepler, insists that this contract, instead of being, as written upon its face, without any limitation as to time in which the sale is to be made, was limited to a period of three weeks, and that it was agreed between the parties at the time the paper was made that Joseph Scott should only have three weeks in which to consummate the sale, and at a time before the sale the parties met, and it was agreed between Joseph Scott and Davis Shepler that the sale not having been made within the three weeks, the paper was declared off, and it was so agreed between them. If this fact be so — if you are satisfied under all the testimony in the case that it is so, that will defeat the right of the plaintiff to recover. In determining that, you will look at all the testimony in the cause. The paper is with the plaintiff; the contract as read is as it is alleged to have been by the plaintiff. The burden, therefore, rests with the defendant to satisfy you by positive and clear testimony that the contract embraced the terms the defendant says it did, and not recited in the paper, that the time was limited to three weeks, and at the end of three weeks they agreed to give up that paper. You will scan all the testimony in the cause, and say whether the defendant has satisfied you by clear and positive proof of the fact that it was limited to three weeks, and the contract declared off at the end of three weeks. If he had insisted upon the paper conveying simply the coal at the time, he ought to have stood upon it, or at least given Joseph Scott notice of it, and an opportunity to be heard. There is no evidence that he did give such notice, and if the facts are so, as they seem to be under the testimony in the cause, then this matter of additional privileges would not.be considered an element of defence on the part of the defendant.”</p> <p>The court reserved the question whether the failure of the plaintiff to show the fact that he had a license as a broker, either under the law of the United States or of Pennsylvania, defeats the right of action.</p> <p>The verdict was for the plaintiff for $600, and the court subsequently overruling a motion to enter judgment for, defendant non obstante veredicto, he took this writ, assigning this refusal to enter judgment, the answer to plaintiff’s point, and the. portion of the charge noted, for error.</p>

<p>Where the judgment in an attachment suit is in favor of the garnishee the defendant therein is not thereby precluded from again bringing suit against said garnishee for the same subject-matter.</p>

<p>Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1877, No. 245.</p> <p>The borough of Irwin, plaintiff below, brought an action of assumpsit for the value of a bridge, against the Pennsylvania Railroad Company, which pleaded non-assumpsit. On the trial the jury found a special verdict of the following facts : that the railroad company, in the construction of their road in 1851, changed the location of the township road, and a bridge over the creek became, and is still necessary ; that the company erected a bridge at that time and renewed it in 1853 and 1866 ; that the bridge as made in 1851 was adequate to the necessities of the public; that in 1875 it was necessary to rebuild the bridge ; that plaintiff below notified defendant to rebuild it; that defendant refused to do so, and plaintiff below rebuilt it; that the bridge built in 1851 cost $150 ; that in 1853, $250 ; that in 1866, $800; and that in 1875 was of the value of $3497. The court entered judgment on the special verdict for this last amount for plaintiff below. The entry of this judgment was assigned for error.</p>

242. This was the appeal of J. M. Laird and others, from the decree of the court confirming the report of the auditor appointed to distribute the fund in the hands of the executor of the estate of Eliza M. Johnston, deceased. Eliza M. Johnston died oft the 30th of September 1865. Her husband and two sons survived her.

<p>1. A tenant for life may, when not precluded by restraining «words, work open mines to exhaustion.</p> <p>2. The term “mine,” when applied to coal, is equivalent to a worked vein, and if it be worked a tenant for life may pursue it to the boundaries of the tract.</p> <p>3. Where there are two different tracts separated by an intervening tract owned by another, with a vein extending beneath them, the opening on one tract does not extend to the other, and the tenant for life mining under the unopened one is guilty of waste.</p>

<p>1. While to make legacies a charge on land it must be found that such was the testator’s intention, still it is not necessary that its ascertainment ^should rest on direct expression. It is enough if the intention appears by natural and obvious implication from the provisions of the will.</p> <p>2. Testator gave certain land to one of his sons, at §33 per acre, the proceeds thereof to be divided into eight equal shares, and distributed equally among his sons and daughters. Held, that it was the intent of the testator that the land should bo charged with the payment of these legacies.</p> <p>3. Haekadorn’s Appeal, 1 Jones 86, and Wright’s Appeal, 2 Jones 256. distinguished. Hart v. Homiller, 8 Harris 248, followed.</p>

<p>Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1876, No. 180.</p> <p>Ejectment by A. Greenawalt and others against Joseph Mc-Enelley and Minnie May Guffey, by her guardian, M. M. Hick, for a tract of eighty-four acres of land. The plaintiffs claimed the land as the collateral heirs of Benjamin ■ Guffey, deceased, while the defendant, Minnie May Guffey, through her guardian, claimed as the child of said decedent.</p> <p>The plaintiffs alleged that said Minnie Guffey was not a legitimate child of said Benjamin Guffey, and that her mother, Margaret'Oolors, now Gilson, was not married to him. In proof of the marriage there was the' direct and positive testimony of Mrs. Gilson that she was married to said Benjamin Guffey; the admissions of their marriage by the latter on a number of occasions to different parties; the fact that he treated her as his wife and introduced her and called her such in the presence of others, together with ■ abundant evidence of reputation and cohabitation. Mrs. Gilson testified that the marriage took place at the office of an alderman in Pittsburgh, and, it seems, at other times had made statements, which were testified to by other witnesses, at variance with this testimony. The evidence of the plaintiff's in the main went to show that the admissions of Benjamin Guffey in his lifetime indicated that no relation of marriage existed between him and Margaret Colors, and further that her statements in relation to the alleged marriage were inconsistent and unreliable.</p> <p>At the trial before Logan, P. J., the defendants offered to prove by Mrs. Gilson that she was married to Benjamin Guffey in 1868, and that Minnie was born in 1864.</p> <p>Plaintiffs objected on the" ground that the witness was incompetent to prove a marriage contract with her alleged husband, after his death, if he were not married to witness, whose child is claiming his estate, and because the very question in the case was this alleged marriage, and for the purposes of the trial she appears as a stranger seeking to give title to her child to Guffey’s estate by proving a contract of marriage, when his lips are sealed in death.</p> <p>The court overruled the objection, and admitted the evidence.</p> <p>The plaintiffs presented, among others, the following points, to which are appended the answers of the court:—</p> <p>4. If the jury find that the declarations and admissions of Benjamin Guffey as to the alleged marriage are conflicting, sometimes admitting that he was married, and at other times denying it, until near the close of his life, then the law would raise no presumption of marriage from such conflicting statements.</p> <p>Ans. “We cannot say that the admissions standing alone, disconnected from the other testimony in the cause, would raise a presumption of marriage in law, and though the point is affirmed, yet with other facts in the cause, the jury might be justified in finding therefrom a presumption in fact of marriage. Admissions of Benjamin Guffey of the fact of his marriage, would be against his interest, and if established, to have been repeatedly made under circumstances evincive of deliberation, and not by mere casual and unconsidered expression, would be of groat weight. Denial by him of the marriage would, however, be declarations in his own interest, and are entitled to but little weight in opposition to admissions against his interest.”</p> <p>5. Mrs. Gilson, formerly Margaret Colors, having testified to a time and place of her marriage, if the jury find from the evidence that she fixed a different time and place — at one time at Kelley’s, in Westmoreland county, and at another time, after night, in Allegheny city, and that she did not call any alderman in the city of Pittsburgh to sustain her allegation, and produced no certificate of her marriage in Pittsburgh, and made no inquiry for the alderman — from such a state of facts the legal presumption would be that the evidence to sustain the allegation of a marriage in Pittsburgh never existed.</p> <p>Ans. “ That point we have refused, and answer it in the negative. The facts raised in it are proper subject-matter for vour eonsideration in passing upon the credit you, shall give to the woman. Her alleged contradictory statements ai'e all proper subjects for your consideration in determining the fact of the marriage.”</p> <p>The court in their general charge, inter alia, said:</p> <p>[“ Marriage may be established as all other contracts of a kindred kind, either by direct proof by some one who was a witness of the fact of the marriage, or execution of the contract, or it may be established by the admission of the parties made against their interest which is in the nature of direct proof, hr it may be inferred from facts and circumstances which raise the presumption of the existence of the marriage relation. * * *]</p> <p>“ Coming then to the question of the admissions of the parties, they may be looked upon either as in corroboration or negation of the allegation made by Mrs. Grilson as to the fact of the marriage. It is testified by a number of witnesses that Benjamin Gruffey at various times made admissions to different witnesses, testifying to the fact that he was married to this lady; and there are also in evidence admissions of a contrary character, or rather denials by him, of tk¿ fact that he was married. [The admissions of Benjamin Gruffey of the fact of his marriage would be against his interest, and if once established to have been repeatedly made, under circumstances evincing their truth, and not mere casual or jocular expressions, they would be of great weight. Denials, however, by him, of his marriage are declarations in his own favor, and are entitled to little weight to contradict his admissions in opposition to his interest. Therefore, under these suggestions, you will look at the question of his admissions, which, as we have stated, are against his interest, and are entitled to great weight, and also take into consideration his denials of the fact of his marriage, which, as we have stated, are declarations in his own favor, and are entitled to little weight in opposition to admissions against his interest.]</p> <p>“ * * * Coming then to the question of the presumption of the marriage, which, as we have said, is inferable from circumstances, as cohabitation and reputation, it may be said, as the undoubted rule of the law, that unless cohabitation and reputation go together they do not, by themselves raise the presumption of marriage. But where there is a divided reputation, a divided reputation and cohabitation do not, by themselves, constitute presumptive evidence of the fact of marriage. In this case it is conceded that the reputation • of the fact as to whether they were married or not, was divided in its character, and, therefore, there could be no presumption of the fact of the marriage raised from cohabitation and reputation; cohabitation and reputation in so far as they are developed in the cause, strengthening the one way or weakening the other, are proper circumstances to be looked at, either in affirmance of the truth of the assertions of Mrs. Grilson, and the admissions of Benjamin Gruffey, or in opposition to them, as they may tend to evince a want of truth in her statement. [Whilst cohabitation and reputation are not by themselves, under the evidence in this cause, presumptive evidence of marriage, yet they are proper facts to be taken into consideration in determining the cause, as the courts say, with other concomitant circumstances, and if the jury are satisfied that the marriage is fairly established under all the evidence in the cause, the jury would be bound to conclude the fact of the marriage, or at least find the fact of the presumption of marriage.] You will, therefore, look at those circumstances in this light as illustrating the main fact in the cause.”</p> <p>Verdict for defendants, and plaintiffs took this writ, their assignments of error being 1 and 2, the foregoing answers to plaintiffs’ points, and 3, 6 and 7, the respective portions of the charge in brackets, as noted above.</p>

210. Debt by the Indiana County Agricultural Society against the County of Indiana. The 4th section of the Act of March 29th 1851, Pamph.

<p>S. endorsed a note for $10,000 for B., and as collateral security for said endorsement B. transferred to S. certain shares of stock in the Homestead Bank and Insurance Company. At the time of his death B. had paid assessments on said stock, amounting to seventy-five per cent, of its par value, leaving twenty-five per cent, unpaid. B. also had an insurance in said company for $10,000, and upon his death the company deducted therefrom the balance due it. The note was lifted by S., and upon the sale of the stock the administrators of B. claimed one-fourth of the proceeds, on the ground that that proportion of the par value of the stock had been paid for by the money of the estate of B.; but the court awarded the whole fund to S. Held, that this distribution was erroneous, and that the one-fourth belonged to the. legal representatives of B., to be distributed as the law directs.</p>

<p>1. An unrecorded mortgage is valid as against the heirs of the mortgagor.</p> <p>2. A scire facias will lie on an unrecorded mortgage.</p> <p>3. Tryon v. Munson, 27 P. F. Smith 250, followed.</p>

<p>1. The frontage rule of valuation, whereby the cost of the grading of streets or other municipal improvements is assessed upon the property abutting upon said street, in proportion to the number of feet the property fronts thereon, is inapplicable to lands in rural districts, like those along Hazelwood Avenue, in the city of Pittsburgh.</p> <p>2. Seely v. City of Pittsburgh, 1 Norris 360, followed.</p> <p>3. The sis months within which under the provisions of the Act of January 6th 1864, the lien for unpaid assessments must be filed, commence to run from the time the work is completed, and not from the time when approved by councils.</p>

<p>1. Where at the execution of a writing a stipulation has been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which the writing has been executed, parol evidence is admissible, although it may vary and materially change the terms of the contract.</p> <p>2. In debt upon a bond the defendant offered to prove that the bond was given for unpaid purchase-money of a certain lot; that to induce the purchase of said lot, plaintiff verbally agreed that if defendant did not like the properly, plaintiff, on request of defendant, would take back the same, and pay defendant a premium and cost of his improvements; that there should be no personal liability by defendant for the purchase-money, and that plaintiff should look solely to the property for payment; that plaintiff was not to part with the bond or mortgage ; that when defendant asked that the foregoing agreement should be inserted in the papers being executed, plaintiff said it was unnecessary, that his bond was sufficient, and that defendant had asked plaintiff to take back the property, as stipulated, which was refsued. The court below rejected these offers. Held, that they should have been received.</p>

1, of Allegheny county: Of October and November Term 1877, No. 33. Assumpsit by John Irwin, Jr., president in trust for the United Savings Bank, on a stock note drawn by Mary A. Miller, on May 20th 1876, at four months, for $2949.32, and payable to the order of the cashier of said bank.

2, of Allegheny comity: Of October and November Term, 1876, No. 196. Assumpsit by Mattorly Addis against the city of Pittsburgh, to recover §5000, for extra work and materials furnished as a contractor in grading Wilkins avenue, in said city. The councils of Pittsburgh on .the 25th of July 1870 passed an ordinance authorizing the grading of said avenue, and directing the city engineer to advertise and let the same in conformity with law.

<p>Where full power is given by a testator to his executors to sell the residue of Ms real estate for the purpose of distributing the proceeds among the objects of his bounty, this power belongs to them virtute officii, and may be exercised by an administrator with the will annexed, under the provisions of the Act of February 24th 1834.</p>

<p>A mechanic’s lien was filed after the property had been sold by B. to M. Previous to the sale B. had settled with plaintiffs and given his note for the work done. B. afterwards became insolvent, and his property passed into the hands of an assignee in bankruptcy. Plaintiffs proved their claim before the register in bankruptcy and received a dividend, but neglected to state in their probate of their claim that it was secured by the mechanics’ lien, as required by sect. 5077 of the Bankrupt Act. M. contended that this neglect had the effect under that act to waive the lien and relinquish it to the assignee, üéld, that M. was a third party not interested in the distribution of the bankrupt estate and could not make this complaint. Held, further, that the property covered by the lien occupied the place of a surety for the payment of the debt of the bankrupt and there was no reason why the plaintiffs should have set it forth in their proof.</p>

<p>Appeals from the decree of the Court of Common Pleas, No. 2, of Allegheny county : Of October and November Term 1877, Nos. 201 and 202.</p> <p>These were the appeals of Mary H. Neely, executrix of Condorcet McGowin, deceased, and of J. G. Thompson, M. E. Oozad and C. C. Oozad, partners as Oozad, Thompson & Co., from the decree of the court directing Cozad, Thompson & Co. to pay to Z. W. Remington the balance of money in their hands, on the purchase of certain papers and instruments from C. McGowin, and further ordering that the costs of the proceedings, out of which the decree arose, should be paid by the estate of said C. McGowin, deceased.</p> <p>The proceedings were by bill in equity filed by Z. W. Remington, against the ap]3ellants in each of the above appeals, and prayed the court .to decree the return to complainant of certain plans, maps, drafts, furniture and surveying instruments which one R. E. McGowin had obtained and retained in his possession.</p> <p>The remaining material facts will be found in the opinion of this court.</p>

<p>A safe deposit company contracted with a depositor to “ keep a constant and adequate guard over and upon the safe” rented by him. A number of bonds deposited therein wore found to he missing: Held, that the company was hound to make some explanation for the absence of the bonds. Held, further, that the question whether the company was guilty of negligence was properly left to the jury.</p>

<p>A stockholder of a building association incorporated under the provisions of the Act of 12th of April 1859, gave the required notice of his intention to withdraw from said association. The association failing to refund the money he had put in, he brought áuit therefor. It was provided in the Act that at no time should more than one-half of the funds in the treasury of the corporation be applied to the demands of withdrawing stockholders. In an affidavit of defence the association averred that fifty per cent, of its funds had already been so applied, and that owing to the depreciation of real estate it had sustained heavy losses and incurred debts which should be paid before stockholders were permitted to withdraw. Held, that the withdrawing stockholder was not estopped by the proviso from legal process for the recovery of his money, until the treasury had funds sufficient to meet his claim. Held, further, that said affidavit was insufficient, inasmuch as it did not aver that the losses and debt were incurred before plaintiff’s withdrawal. ■</p>

<p>Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1877, No. 211.</p> <p>This was the appeal of A. W. and William Bedell, administrators of Andrew Bedell, Sr., deceased, from the decree of the court on the exceptions filed to the account of said administrators.</p> <p>In their account, the inventory amounted to $6527.60,which, with an increase in the sale over the appraisement of $220.91 and interest collected on note $36.92 made up the debit side. The credit side was made up of some sixty disbursements, and showed a balance in the hands of the accountants of $352.32. Among these items on the credit side was a bond of Joel Bedell for $2834.83. As Joel Bedell was insolvent, they claimed credit for this amount as not collectable. Joel Bedell claimed, however, that it was paid and that he had the mortgage securing its payment receipted by his father, Andrew Bedell, Sr.</p> <p>In the inventory was also included the balance of a mortgage of A. W. Bedell to Andrew Bedell, Sr., dated June 20th 1867, for $4000, in four equal annual payments from April 1st 1867, with interest, on which had been paid, April 1st 1869, to the decedent $3400, which was receipted on the mortgage. The mortgagor had paid to divers persons, moneys for the decedent in his lifetime, and held the receipts for the same, but they had never been credited on the mortgage. These credits, the other administrator, on the 3d of April 1875, receipted on the mortgage as of their proper dates. They amounted in all, leaving out the $3400 receipted on mortgage, and receipt for $100 of interest paid, to the sum of $310.76 ; this left still a balance of said mortgage unpaid. On August 20th 1875, after decedent’s death and letters of administration, the mortgagor paid to Charles Percival $1180, the amount due him by Andrew Bedell, Sr., his former guardian; of this sum, $903.23 was applied to paying the residue of said mortgage, which was then satisfied by the co-administrator and the balance applied to a note of A. W. Bedell.</p> <p>The accountants also claimed as a credit for their entire services the sum of $339.27, being five per cent, on the debit side of their« account.</p> <p>The accountants paid all the debts of decedent except the claim of his son-in-law, James McKown, with respect to which the following facts were disclosed: About September 1st 1871, McKown became, with his family, an inmate of the house of Andrew Bedell, under an agreement that he should receive $300 per year and boarding for the services of himself and wife, in taking care of Mr. and Mrs. Bedell and the house, and when not employed in the house, Mr. McKown was to assist on the farm. He remained there until after the death of Mr. Bedell, without any new contract having been made. He now claimed for extra services in nursing Mr. Be-dell, who required more and more attention, and towards the last had to be assisted in and out of bed frequently, day and night. The greater part of the attendance was given by Mrs. Bedell and Mr. and Mrs. McKown, who were at times assisted by neighbors. The mind of Mr. Bedell had become enfeebled for some time before his death, and his sickness was of a very extraordinary character. The services which Mr. and Mrs. McKown were required to perform in nursing, were not such as could have been anticipated when they made the original arrangements to take care of Mr. and Mrs. Bedell. Mr. McKown could not have made a new arrangement, owing to the mental condition of Mr. Bedell, and it would have been inhuman, under the circumstances, to have left with his family. JDr. Shaffer testified that he would not have done the nursing for $3 per day during the year he attended Mr. Bedell; and the five months which followed must have been still more difficult.</p> <p>The administrators also paid $550 for gravestones for the deceased, for which they claimed credit as part of the funeral expenses. They also paid McKown $50 on account of his claim.</p> <p>McKown and Joel Bedell filed exceptions to this account and in passing upon it the court disallowed the five per cent, commissions on Joel Bedell’s bon'd, on the ground that the evidence showed it had been satisfied in the lifetime of Andrew Bedell. They also disallowed the commissions on the $310.76 and $903.23, receipted on the mortgage, for the reason that they were not proper subjects of charge and discharge in the administration account, thus surcharging the accountants on their claim of $339.27 for services, the sum of $202.63, leaving them for said services $136.54. They also surcharged the administrators, $160.93 on the $550 paid for gravestones as a preferred debt, and $14.64 on $50 paid McKown on his claim, and made a decree accordingly.</p> <p>Prom this decree the administrators took this appeal, assigning for error the action of the court in the several particulars above mentioned.</p>

<p>Appeals from the Court of Common Pleas, No. 2, of Allegheny county: Of. October and November Term 1877, Nos. 253 and 254.</p> <p>These were appeals by Samuel Kilgore and the Central Board of Education of the city of Pittsburgh from decrees of the court sustaining demurrers to bills in equity, filed by the respective complainants.</p> <p>The bill of Kilgore, a citizen and tax-payer, and the treasurer elect of the city of Pittsburgh, was filed on the 4th of May 1877, against C. L. Magee, treasurer, R. M. Snodgrass, controller, and the members of the finance committee of councils of said city, setting forth and alleging, inter alia, that said C. L. Magee, city treasurer, claimed the right to appoint, and was about to appoint, some person (then unknown to complainant) as “ collector of outstanding or delinquent taxes and water-rents,” under and by authority of a pretended Act of Assembly, entitled “ An Act in relation to cities of the second class, providing for the levy, collection and disbursement of taxes and water-rents,” which purported to have been approved by the governor on March 22d 1877, Pamph. L. 16; that said pretended act was inoperative, unconstitutional and void, and did not legally confer said right or authority upon said Magee, city treasurer, because,</p> <p>1. It was not passed or enacted conformably to the requirements of the constitution of the Commonwealth. 2. It contains more than one subject not clearly expressed in its title. 3. It was altered and amended on its passage through both houses of the General Assembly, so as to entirely change its original purpose. 4. It w7as not read at length on three different days in each or either house of the General Assembly. 5. It is a local or special law, only applicable to and intended to operate upon and regulate the affairs of the city of Pittsburgh, under a pretended classification made by the said General Assembly, by which said city is alone created a city of the second class, contrary to art. 3 of the constitution.</p> <p>That at the last session of the General Assembly a bill was introduced in the senate entitled “ An Act prescribing the times for the payment of city taxes in cities of the second class,” and designated “ Senate Bill No. 102,” which contained but one section.</p> <p>Amendments or alterations of said bill w7ere proposed or made by the House of Representatives, but disagreed to by the Senate, and a committee of conference was created, to whom was referred “ the difference existing between the two houses in relation to the Senate bill No. 102” aforesaid; that said committee of conference did not sit or consider the subject-matter referred to it; that members of said committee acting collusively with certain individuals whose names are unknown to your orator, and with intent to violate the constitution of this Commonwealth, and unduly procure the passage of the bill or act mentioned in the third and fourth paragraphs of this bill, wrongfully returned to the said General Assembly a report setting forth that the committee had “ agreed to recommend the adoption of a bill containing sixteen sections, with an entirely different title, and embracing divers matters and subjects not clearly expressed in its title, and not embraced within the pro* visions or subject of said Senate bill No. 102, nor pertinent to tlie matter referred to said committee; that the same was not read at length, as required by sect. 4 of art. 3 of the constitution, nor duly passed by both or either of the houses of the General Assembly, and is not, nor of right ought to be regarded, respected or enforced as a local or general law of this Commonwealth; that said act is local and special, being only applicable to and intended to be enforced in the city of Pittsburgh, and was illegally passed in disregard and violation of sects. 7 and 8 of art. 8 of the constitution.</p> <p>That in passing said act “ Senate Bill No. 102” was so altered and amended on its passage as to entirely change its title and body and purpose, and the said pretended act, with an entirely different title, and containing thirteen sections, not one of which is of the same import, meaning or effect as the original bill, but entirely different and for other purposes, was substituted, contrary to art. 3 of the constitution; that this said act was thus passed for the purpose of increasing the emoluments of C. L. Magee, city treasurer, and indirectly extending his term of office indefinitely, in that it provides he “ shall, previous to the 1st day of August 1877, appoint a person, to be denominated collector of outstanding or delinquent taxes and water-rents,” who shall hold his office for a term of five years, and “ until his successor shall be duly appointed and qualified.” That said act is unconstitutional and void because it diminishes the rights and emoluments of plaintiff, city treasurer elect of the city of Pittsburgh, after his election to said office, by depriving him of the right to collect said taxes and water-rents and of the compensation therefor, contrary to sect. 13 of art. 3 of the constitution, and imposing upon him onerous duties without compensation.</p> <p>The bill then prayed that the said Act of Assembly be declared unconstitutional and void; that Magee, the treasurer, be restrained and enjoined from appointing the collector provided for in said act, or doing any other matter or thing authorized thereby, and that the controller, finance committee, and said collector, if appointed, bo likewise enjoined from performing any duty in pursuance of said pretended law or appointment. The act in question made the following, among other provisions:</p> <p>Sect. 2. The finance committee of the councils of the cities of the class aforesaid shall be, and are hereby directed, in lieu of any existing authority in relation thereto, to make and agree upon an estimate of the various sums of money which, in their discretion, will be required to defray all tbe various expenses necessary for conducting the various departments, whether legislative, executive or administrative (including schools, or boards of education, or poor boards), of the city government, which estimate shall be founded upon reports obtained from said departments; and also for paying the interest upon the city debt and the principal of such debt falling due; which amounts, when so established by said committee, shall be certified by them on or before the second Monday of January in each year, in detail, to the city councils, to be by them accepted or. modified as the aggregate expenses of the city; and said councils are hereby empowered and directed annually to cause a tax sufficient for all purposes to be levied and collected of the estates, real and personal, subject to taxation within such cities.</p> <p>Sect. 3. The educational, school and poor departments shall be departments of the city government, and the amount set apart for educational, school and poor purposes shall be sacred to such purpose, and shall be paid out by the city treasurer only upon warrants drawn by the mayor and countersigned by the city controller. The educational, school and poor funds shall not be divested; warrants on said fund shall only be drawn upon requisitions being filed with the city controller by the proper educational, school or poor boards.</p> <p>Sect. 7. That the city treasurer, in cities of the class aforesaid, shall, previous to the 1st day of August 1877, appoint a person to be denominated collector of outstanding or delinquent taxes and water-rents ; the person so appointed shall hold his office for the term of five years from the date of appointment, and until his successor shall be duly appointed and qualified. Such collector shall give bonds, to be approved by the finance committee of the city councils, in the sum of $100,000, conditioned for the faithful performance of the duties of his office.</p> <p>Sect.. 8. All taxes and water-rents unpaid at the end of the month in which, by the terms of this act, the same are payable, shall be deemed delinquent, and it shall be the duty of the city treasurer to prepare a registry or list of all taxes unpaid of the first instalment of taxes hereinbefore provided, and place the same in the hands of such collector for collection, on or before the 15th day of April in each year. It shall be the duty of the city treasurer to prepare a registry or list of all delinquents in business tax and water-rents, and place the same in the hands of such collector for collection, on or before the 15th day of July in each year. It shall be the duty of the city treasurer to prepare a registry or list of all taxes unpaid of the last instalment of taxes hereinbefore provided, and place the same in the hands of such collector for collection, on or before the 15th of October in each year. Eor the year 1877 a list of all taxes and water-rents unpaid on the first day of August in said year, shall be prepared by the city treasurer and placed in the hands of such collector for collection. The compensation of such collector shall be ten per centum on the amount collected and paid into the city treasury, which said ten per centum shall be added to said delinquent taxes and water-rents as penalty for non-payment at the time herein prescribed; Provided, That out of said penalty shall be paid all cost of office rent, clerk hire and stationery.</p> <p>Sect. 9. Upon the list aforesaid being furnished to such collector, he shall immediately thereafter proceed to collect all such delinquent taxes and water-rents, either out of the personal or real estate of such delinquent owner, wherever the same may be found, and for such purpose he shall be and is hereby invested with full authority to levy on and sell the personal property after the taxes or water-rents have become delinquent thirty days ; and the real estate of any owner where the taxes or water-rents remain unpaid for six months, may be sold by direction of such collector. * * * And, provided, That in all cases of sale for taxes or water-rents, the city controller is hereby authorized and directed to bid on the property a sum sufficient to pay the city’s lien for all taxes and water-rents due and unpaid under this act; and, in case of purchase,.the property shall be subject to redemption, and, in all such cases, neither the collector or the city shall be liable for the payment of the sheriff’s or prothonotary’s costs until the claim of the city and the said costs shall be realized out of the real estate so bought in and held for the use of the city. In all cases of sale, the collector filing the lien shall be entitled to the compensation authorized by this act.</p> <p>Sect. 10. The said collector shall make returns, in duplicate, on or before the twentieth day of every month of his collections, under oath, to the city controller, and shall deposit one copy of said returns with the said city controller, and shall deposit one copy of said returns with the city treasurer, and the said collector shall, at the time of making his return, pay the amount of his collections to the city treasurer, and take duplicate receipts therefor, and shall deposit with the city controller one copy of such receipt.</p> <p>The defendants jointly demurred to the bill, assigning among other causes therefor, that the proceedings of the Senate and House of Representatives could not be inquired into and adjudicated upon by the court, and that the bill did not contain any matter of equity whereon the court could ground any decree, or give the complainant any relief.</p> <p>On the 1st of August 1877, Magee appointed Thomas II. Phelps the collector of delinquent taxes, as provided by the act, who thereupon entered upon the duties of his office.</p> <p>The Central Board of Education of the city of Pittsburgh, on the 21st of September 1877, filed a bill in equity against said Phelps. This board was incorporated by virtue of an Act of Assembly, entitled “An Act consolidating the wards of the city of Pittsburgh for educational purposes,” approved the 9th day of February 1855, Pamph. L. 10, &c., and was continued in existence and clothed with additional powers, by an act with the same title, approved February 12th 1869, Pamph. L. 160, &c., under which acts, with a few immaterial modifications, it has continued to control the schools of the city until the present time.</p> <p>By the provisions of the Act of 1865, the city of Pittsburgh was created an independent school district, and had complete control of the' schools of the city; with duty and power of maintaining a high school, and school of color, and to pay the teachers of the sub-districts. For these purposes they were required to levy a tax, to appoint a treasurer, and to “ appoint some suitable and competent person as collector of the school duplicate of each ward;” and all moneys collected were to be paid to the treasurer of the board, and disbursed by him, on warrants drawn by direction of the board.</p> <p>Under this act the Central Board of Education was entirely distinct from, and had no connection with the city government.</p> <p>The Act of February 12th 1869, contained substantially the same provisions, except that by the twentieth section, it was made the “ duty of the treasurer of the city of Pittsburgh for the time being, to receive and collect all school rates and taxes assessed by the central board, to whom he gave bond and accounted monthly. He was also authorized to appoint collectors of delinquent taxes in each ward. In all other respects the taxes were entirely subject to the control of the central board, who, by the twenty-first section, had the sole power to make exonerations.</p> <p>The bill set forth the powers of the board under the above recited acts and further averred that said Phelps, having been appointed collector of delinquent taxes under the provisions of the Act of March 22d 1877, threatened to demand and receive from the tax-payers the school taxes due to said Central Board of Education;. that defendant is not responsible to said board for the money which will be collected by him and the recovery thereof cannot be enforced by law. The bill then alleged that the Act of 1877 was unconstitutional and void, on the same grounds set forth in the bill filed by Kilgore, and for the additional reason that it regulates the affairs of the school districts of the city of Pittsburgh in violation of art. 3, sect. 7, of the constitution, which provides that “the General Assembly shall not pass any local or special law regulating the affairs of cities, counties, * * * or school districts, or regulating the management of public schools, &c.;” and further, that said act amends the charter of the Central Board of Education in violation of the constitution, art. 3, sect. 7, which provides that the General Assembly shall not pass any local or special law “ creating corporations, or amending, renewing, or extending the charter thereof.”</p> <p>To this -bill a demurrer was also filed on the same grounds, and that the decision of the question involved might be reached as soon as practicable, a decree pro forvia sustaining the demurrers was entered in each case by the court without argument.</p> <p>From these decrees these appeals were taken.</p>

<p>Where a party is active in procuring an ordinance from the councils of a city directing the grading and paving of a street, is elected a commissioner under such ordinance and charged with the superintendence and control of the improvement, sells the bonds of the city and expends the proceeds thereof to defray the cost and makes the assessments upon properties abutting on said street after a particular mode of assessment, he is estopped from denying the validity of the Act of Assembly in accordance with which said ordinance was passed and the mode of assessment thus adopted.</p>

<p>1. Where a street is opened, under the provisions of the Act of January 6th 1864, Pamph. L. 1131, and its supplements, and in pursuance of said act a bond is filed to indemnify parties whose property is damaged by said opening and an appeal from a report of viewers is certified from the Quarter Sessions to the Common Pleas, under the provisions of the Act of June 13th 1874, Pamph. L. 283, for trial by jury and judgment is therein recovered, the primary fund out of which said, judgment is to be paid is that to be raised by the assessment and collection of benefits from the property along the street opened, and this fund must be exhausted before recourse can be had to the bond.</p> <p>2. The proper proceeding is to remit the record after judgment, from the Common Pleas to the Quarter Sessions, for the purpose of completing the assessment, and handing it over to the city attorney for collection of benefits and payment of damages, and if the damages awarded by the Common Pleas are not thus paid then recourse can be had to the bond filed in the Quarter Sessions.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county : Of October and November Term 1877, No. 126.</p> <p>Assumpsit by F. C. Biggart, administrator of Body Patterson, deceased, against the city of Pittsburgh, for a balance of rent due for the occupation of a certain building as an armory by a battalion of the state militia resident in said city.</p> <p>The facts will he found stated in the opinion of this court.</p> <p>The court was requested to charge the jury to find for the defendant, for the following reasons :—</p> <p>1. Because by the provisions of the 64th section of the Act of 4th May 1864, under which plaintiff claims to recover, it was necessary that the mayor and councils should act in the manner which they are required by law to do, in order to perform the functions cast upon them by said section for the state, and that there has been produced no evidence whatever, that the councils of the city of Pittsburgh, as such, ever took any action with reference to the contract in controversy.</p> <p>2. That said section of said Act of Assembly simply contemplated that the mayor and councils should act for the state in the making of the contracts, and provides expressly that the rent of the rented armories through this medium should be paid out of the brigade fund, which is furnished by a state tax and expended by the state through a board of militia officers, as provided by sect. 99 of Act of 4th of May 1864, and 6th section of Act of 7th April 1870.</p> <p>The court refused, and instructed the jury that, if they believed the evidence of plaintiff, to find a verdict in his favor.</p> <p>The jury so found, and the defendant took this writ, assigning this instruction for error.</p>

<p>Error to the Court of Common Pleas, of Washington county: Of October and November Term 1877, No. 18.</p> <p>Assumpsit by William Ray and Elizabeth, his wife, in right of the wife, against Sarah A. Pollock, executrix of James Pollock, deceased, to recover for services rendered the decedent in his lifetime by Mrs. Ray as a domestic servant and housekeeper.</p> <p>The action was brought on the 26th of June 1873, and came on for trial in 1876.</p> <p>The narr. averred that on the--day of May 1858, James Pollock, the defendant’s testator, agreed with the said Elizabeth Ray, that in consideration of her services then rendered and to be rendered by her to the said decedent, he would provide for her at his death out of his estate, the same as he would for his own son ; meaning thereby, that she, the said plaintiff, should take and receive out of his estate a child’s share for the services aforesaid. Yet the said decedent, in violation of his said agreement, made no provision whatever for plaintiff; and the defendant in this suit, his executrix, since that time has neglected and refused to pay or compensate the said plaintiff in any way for said services according to the promise of her said testator, although the compensation of said plaintiff under the aforesaid contract would and did amount to the sum of $10,400.</p> <p>Defendant pleaded non-assumpsit and the Statute of Limitations.</p> <p>At the trial, before Acheson, P. J., it appeared that Mrs. Ray was born of poor parents who resided on the land of Pollock; when she was about twelve years old he took her into his family — this was in the year 1836, and with the exception of nine months’ absence in 1850 or 1851, when she went to Allegheny city to learn a trade, she continued to live with him till the spring of 1861. In the fall of 1857 she married her present husband, William Ray, who was employed after his marriage by the decedent and lived with his wife in the family of Pollock, till March 1861, when they went to reside in a tenant house on his farm. Pollock was thrice married. He had but one son, by his second wife, Hannah. She died in 1857, and from that time till Mrs. Ray left in 1861, according to the testimony of Mrs. Bilderback, Pollock’s niece, she was his housekeeper and had the sole charge of his domestic affairs. The decedent married his third wife in that year and died in the spring of 1872. Nathaniel Pollock, his only child, died before him, in 1870. It appeared that Mrs. Ray was taken into the service of the decedent without any definite arrangement as to the compensation she was to receive or as to the time or terms of payment. In support of the alleged special contract between the decedent and Mrs. Ray, the plaintiff relied upon the declarations made by decedent in his lifetime as detailed in the testimony of the following witnesses: — ■</p> <p>Jane Gordon. “ We intend to do as well for her as we do for our own child.” * * * “If she lived after him he would do well by her at his death.”</p> <p>Elizabeth Ayers. “ He would do well by her, or he would pay her wages ; he intended to leave her and do as well by her as his own; he intended to do well by her, and at his death he would make her as good as an heir; he did not use the word ‘ will’ or ‘ heir;’ he said he intended to leave her and do as well by her as his own ; heard him say so more than a dozen times.”</p> <p>The plaintiffs followed the testimony of Mrs. Gordon and Mrs. Ayers with the offer to prove by Douglass Gerry “ that James Pollock, the testator, at his decease was the owner of two farms, one of about two hundred acres, and the other one hundred and fifty acres, and to prove the value of the same for the purpose of fixing a standard by which the jury may estimate the damages for the breach of contract.</p> <p>This testimony was admitted under objection and exception.</p> <p>The second and third points of defendant, with the answers of the court, were:—</p> <p>2. The testimony of Jane Gordon that Pollock said in 1858 that “ he intended to do as well by her (plaintiff) as he would by his own child — that if she lived after him he would do well by her at his death,” and the testimony of Elizabeth Ayers that Pollock said that “ he would do well by the plaintiff, or would pay her wages,” and that he “ intended to leave her and do as well by her as his own” do not amount to such clear and certain proof as the law requires to entitle the plaintiff to recover.</p> <p>Ans. “ We must refuse this point, leaving the jury to determine under the instructions we have given them whether the plaintiff is entitled to recover.</p> <p>8. This being an action brought after Pollock’s death to recover wages for services rendered to him more than ten years before his death, it should be clearly made out by direct and positive testimony; and the testimony offered by the plaintiff is not sufficient in law to entitle her to recover.</p> <p>Ans. “ We^affirm so much of this point as relates to the kind of testimony required to support the plaintiff’s claim ; but if the jury find that the decedent did agree to compensate the plaintiff at his death as proven, we cannot say she is not in law entitled to recover.”</p> <p>The court, inter alia, charged:—</p> <p>“If Pollock settled with the plaintiff before his death for her services, she would have no claim now against his estate. If he did not, she could not still recover unless she has satisfied you that her compensation was deferred till his death; but, if you are so satisfied, the question would be, what ought she to have ? Not simply the wages the law would give her upon an implied contract, but what the decedent ought to have given her according to his promise. If he promised to do as well by her as by his own child, his meaning might be that he designed to put her on an equality with his son Nathaniel. In this view, we have received evidence of the value of the decedent’s property, and leave it to you to say what the plaintiff should have, regarding what Nathaniel might have received as the only heir of his father, if he had survived him.”</p> <p>The verdict was for the plaintiff for $500. A motion for a new trial was afterwards overruled, and judgment entered on the verdict. The defendant then took this writ, assigning for error the admission11 of the above-mentioned evidence, the answers to the points and the portion of the charge noted.</p>

<p>1. The Governor is the absolute judge of what official communications, to himself or his department, may or may not bo revealed, and is the sole judge not only of what his official duties are but also of the time when they should be performed.</p> <p>2. The Governor is exempt from the process of the courts whenever engaged in any duty pertaining to his office, and his immunity extends to his subordinates and agents when acting in their official capacity.</p> <p>3. The powers and duties of grand juries and the essentials of a subpoena ad testificandum discussed.</p>

226. After the bill in equity and answer were filed in this case it was agreed to submit the whole case, as stated in the bill, and the title to the property, to the court, without the intervention of a jury, with the right of either party to take testimony.

64. This was the appeal of Samuel Hindman, administrator of the estate of George Hindman, deceased, from the decree of the court confirming the report of the auditor appointed to make distribution of the estate of said decedent. The facts will be found fully stated in the opinion of this court.

76. This was an action of debt brought in the court below by Stephen Strawn, for the use of the school district of Centre township, against Jesse Scott, principal, and James Call and Jackson Chedister, surviving sureties upon a bond given by Scott for the faithful discharge of his duties as collector of bounty taxes.

<p>Error to the Court of Common Pleas of Washington county: Of October and November Term 1877, No. 150.</p> <p>This was a feigned issue under the Sheriff’s Interpleader Act, in which George Dale, the plaintiff, claimed, as his sole property, certain cattle which had been levied upon by Joseph Pierce, the defendant, as the property of George J. New.</p> <p>The plaintiff produced the evidence which will be found, in substance, in the opinion of this court and there rested. The court below, Hart, P. J., granted a compulsory nonsuit, and refused a subsequent motion to take it off on the grounds that,</p> <p>1. The evidence for the plaintiff does not tend to establish a sole and exclusive ownership in him, as is alleged in the notice to the sheriff, and in the issue framed, but establishes a partnership.</p> <p>2. The ownership claimed by the plaintiff is void and fraudulent in law, for want of such visible and open transfer of property as the law requires.</p> <p>This action of the court was the error assigned by plaintiff, who took this writ.</p>

<p>1. In a suit by an attorney, on a quantum meruit, for professional services, it is competent for the defendant, on cross-examination of another attorney practising at the same bar, to ask the witness what is the ordinary charge for defending a criminal charged with felony.</p> <p>2. It is also competent for him to show by the examination of other members of the same bar what is the usage of that bar in cases similar to that which plaintiff had tried, and what the services of counsel therein wore really worth.</p> <p>3. The facts and circumstances upon which any reasonable presumption Or inference can be founded as to the truth or falsity of the issue or disputed fact, are admissible in evidence.</p> <p>4. A resort may bo had to the general value belonging to things of a given class, in order to infer the value of a particular member of such class.</p>

232. Indictment of T. A. Bartilson, Joseph Hanen and John H. Little, found on the 22d of May 1877, charging said parties, on the complaint of O. H. P. McCoy, with a conspiracy to cheat and defraud said complainant of his property.

<p>If a party make erroneous representations of the solvency of another he will not be liable in an action of deceit for such representations, if, at the time he made them, he honestly believed them to be true.</p>

<p>By an instalment made in 1819, James Nicholson conveyed certain land to Poinpey, Tamer and Betty, “ for their own use during their natural life, and afterwards to their lawful, if they have any, and if not lawful issue remains after their death, the above-described land shall revert to the lawful heirs of James Nicholson, and the said Pomp, Tamer and Betty are to take possession of said tract of land immediately after the decease of the said James Nicholson and Mary his wife, and not before, then to have full possession, one or more of them, during their natural life and the life or lives of their lawful issue.” By will in 1828 he devised the same tract, after death of testator’s widow, to the same persons, “ to stand sure to them and their heirs with all the buildings and improvements thereon, and when any one dies the living ones must heir their share of all property I give them.” Held, (1.) That if the instrument of 1819 was a testamentary paper, it was revocable and revoked by the will under which the devisees took an estate in fee as tenants in common with an executory devise over to the longest liver. Turner v. Scott, 1 P. P. Smith 120, recognised. (2.) That if it was an irrevocable grant it conveyed to the grantees an estate for their lives, with remainder to their children for their lives, but as the remainder was contingent, there being no children in being, the reversion in fee vested in the grantor. (3.) In a deed .the word “ issue” will not supply the want of the word “ heirs.”</p>

<p>1. The O. V. Railroad Company was chartered in 1853 to build a railroad from Pittsburgh to the borough of Washington. In 1856 it executed a mortgage “ of all and singular the railroad of said company extending from its point of junction with the P. & S. Railroad to the borough of Washington.” Under this mortgage the road was sold, and the purchasers reorganized, under the Act of April 8th 1861, as the O. Railway Company. To the stock of the eompany, thus organized, the defendant subscribed. The road was constructed to a point within eight miles of Pittsburgh, whore it made a junction with a railroad running into said city. The terminus at Washington was a short distance outside of the borough limits, as they existed in 1853, but was within them as they existed when the mortgage was executed. Suit was brought by the company on the defendant’s subscription, who refused to pay, on the ground that the railroad was not completed to the terminal points designated in its charter. Held, that the O. Railway Company, as purchasers under the mortgage, were not under any obligation to complete the whole road, hut it was limited to the portion of the road mortgaged and sold, and as defendant had subscribed to the stock of this latter road, and not the road named in the original charter, he could not avail himself of the conditions of that charter, in regard to the terminal points, to obtain a release from his subscription.</p> <p>2. To introduce a new term into a written contract, the evidence of the agreement of the parlies to do so must he clear and distinct, and that the contract was executed upon the faith of such collateral agreement.</p>

<p>Error to the Court of Common Pleas of Fayette county: Of October and November Term 1877, No. 265.</p> <p>Ejectment by Joseph Carroll against C. A. Hart and Elias Parshall, for a tract of about eighty acres, of land.</p> <p>Hart claimed title to the land by virtue of a parol sale, which, he alleged, took place in 1860, in pursuance of which he had taken possession of the tract, which was then wild and uncultivated, and had since remained in possession, clearing it and converting a considerable portion thereof into meadow and pasture lands. A portion of a steam distillery, belonging to defendant, was also erected on the land. He likewise alleged that all the purchase-money was paid.</p> <p>It appeared also that Carroll had executed a deed to Hart for this land in 1867. This deed, however, was never delivered to Hart, but was in the possession of Carroll at the time of the trial.</p> <p>A short time before this suit was instituted in 1873, Hart was heavily involved in debt, and judgments were entered against him, among which was one in favor of Elias Parshall for $2000. When this suit was commenced a rule of reference was entered, and Hart accepted service of both the writ and the rule. Both Carroll and Hart attended before the arbitrators, and the latter made no defence.</p> <p>An award was made finding for the plaintiff, to be released upon the payment of $784 within thirty days, the amount claimed by Carroll. As a precautionary measure, lest the rights of the judgment creditors might be precluded by the forfeiture of the land on this conditional award, Parshall was allowed by the court to become a defendant, and he entered an appeal from the award. The land was sold by the sheriff and purchased by Parshall, to whom a sheriff’s deed was given.</p> <p>In charging the jury the court, Willson, P. J., said:—</p> <p>4 4 It is claimed that independent of the fact of the delivery of the deed, that there is sufficient evidence in the case of a verbal sale by Carroll to Hart — as to the making of this agreement of a verbal sale in the payment of the purchase-money, the making of improvements, and the fact of the defendant retaining possession of the property to take the case out of our Statute of Frauds and Perjuries, but [we instruct you that if there was no delivery of the deed as claimed by the defendants, then the defendants have no right to hold this land, and your verdict must be for the plaintiff. There is nothing in the evidence of the verbal sale that would enable the defendants to retain this land, and ask a verdict at your hands, outside of the Statute of Frauds and Perjuries].”</p> <p>The verdict was rendered accordingly, and after judgment the defendants took this writ, assigning for error the instruction contained in that portion of the charge above included in brackets.</p>

118. The 10th section of the Act of Assembly of April 4th 1873, imposed an annual tax of three per centum upon all premiums received within the state by foreign insurance companies or associations transacting business within this Commonwealth. The Insurance Commissioner, on March 1st 1875, settled an account against the Germania Insurance Company of New York, for §3203.45, the amount of tax on premiums received by it from its business within the state the December 31st 1874.

<p>Error to the Court of Oyer and Terminer of Orawford county: Of October and November Term 1877, No. 247.</p> <p>Indictment of Charles Snyder for the murder of the illegitimate child of his daughter Marietta.</p> <p>At the trial the daughter testified in her examination in chief that the child was born in July 1876, and that her father was its father ; that an hour or so after its birth her father took the child wrapped it in a feather bed, and put it in a chest ■; that it was alive; that the next morning he took it from the chest and carried it away. On cross-examination she testified that she was asleep when the child was put into the chest, and that all she knew about it was what her mother told her.</p> <p>The theory of the defence rested mainly upon the great improbability of the case, as presented by the Commonwealth, and the excellent character of the defendant in the neighborhood where ho had lived all his married life. Some forty or fifty witnesses were called from the neighborhood, all of whom gave him a good character.</p> <p>. It came out in the course of the trial that three complaints had been made against him, one by the daughter for incestuous adultery with her, and then by a friend of the daughter, using her as a witness, for incestuous rape, and lastly for the murder of the child. The defence offered and had read in evidence the first two complaints, to show the singular character of the proceeding, and to discredit the principal witness, the daughter.</p> <p>In rebuttal, the prosecution recalled the daughter and offered to prove by her that the second charge, that is, of rape, was true. To this defendant’s counsel objected, for the reason that the defendant was not on trial for rape, and was not prepared to answer the charge. The objection-was overruled, and the evidence received. This constituted the first exception.</p> <p>In answer to the testimony of general character, the prosecution called a Mr. Davison, “ to prove complaints by the children of defendant, of his cruelty towards them, prior to the commencement of the prosecution.” To this defendant objected. The objection was overruled, and the testimony received, and this constituted the second exception.</p> <p>The jury rendered a verdict of murder in the second degree, and the defendant was sentenced to the penitentiary for a period of eight years and two months. He then took this writ, assigning for error the admission of the evidence of the daughter as to the truth of the charge of rape, and the admission of the testimony of Davison as to the cruelty of defendant to his children.</p>

<p>The Act of February 19th 1849, provides “ that whenever any railroad company shall locate its road in and upon any street or alley in any city or borough, ample compensation shall be paid to the owners of lots fronting upon such street or alley for any damages they may sustain by reason of any excavation or embankment made in the construction of the road.” The N. O. & F. Railroad Co., in building their road, carried it across Mill street, in the city of New Castle, the effect of which construction was to impede by an embankment made the flow of a natural watercourse, which was thereby dammed up and flooded plaintiff’s lot and cellar. In a proceeding under the above act to recover damages, held, that so far as the property of the plaintiffs was damaged by the railroad embankment within the lines of the street they had the right to compensation, but -#ith the consequences produced by the work outside of these lines the court and jury in this proceeding had nothing to do. Held, further, that the defendant had the right to ask the exclusion of the effects of the operation of the road in depreciating the value of the plaintiff’s property from the deliberation of the jury.</p>

<p>Appeal from the decree of the Court of Common Pleas of Crawford county: Of October and November Term 1876, No. 166.</p> <p>In November 1871, Z. Waid was the owner of three improved lots in Titusville; and while thus the owner, three judgments wore, obtained against him, and continued liens on the lots at the time of their sale. These were in the following order and amounts: Chase, for $200, November 6th 1871; appellants, $2515.40, May 20th 1873; Roberts & Co., $178.90; Henderson, $1769,12, November 6th 1873; Producers’ and Manufacturers’ Bank, $555.23, March 9th 1874. The judgments of Chase and Henderson were assigned to the appellants. The lots were sold on an execution issued upon the judgment of Henderson. Lot No. 1 was sold for $2005; No. 2 for $1865; No. 3 for $830, and No. 4 for $215, making a total of $4115. The appellants became the purchasers of lots No. 1, 2 and 4, for $3585, and gave the plaintiff a lien-creditor’s receipt, as follows: on the Chase judgment, $268.03; appellants’, $2156.12; Henderson’s, $1879.7'3. Appellants also received $748.80, the proceeds of the sale of No. 3. The Producers’ & Manufacturers’ Bank, the holders of judgment No. 5, claimed that the appellants’ judgment and that of Henderson should he reduced, on account of usury; and the auditor found that the firm of Shugert & Starr gave to the appellants a note for $2500, endorsed by Z. Waid. This was renewed at the rate of ten per cent, per annum, and finally this judgment obtained; and Shugert & Starr, having paid usurious interest in the sum of $203.13, brought suit to recover double tho amount as a penalty. This suit was settled. The auditor deducted the interest paid by Shugert & Starr before Waid became endorser, and reduced the judgment to $1262.17 ; that the attorney’s foe of five per cent, paid Waid should he applied as a payment; that certain notes given by Waid, amounting to $690, and unpaid, were a payment of usury, and to be deducted. He also allowed a claim of the city for paving, sewer and general tax, amounting to $394.34. The court, by decree below, confirmed the report, and dismissed appellants’ exceptions, from which they appealed, and assigned for error the entry of this decree.</p>

<p>Error to the Court of Common Pleas of Crawford county: Of October and November Term 1877, Nos. 116, 117, 118, 119, 120, 121, 122 and 123.</p> <p>These were actions of replevin. The plaintiff in error, who was the plaintiff below, occupied a three-story building in Meadville, known as the National Hotel. He declined to renew his lease for another year, unless the landlord, defendant in error, would build an additional story to extend fifty feet from the west end of it, and would tear down the old porches and make hall-ways. This he agreed to do, and a lease containing the agreement was executed. By the construction of the porches, more convenient access would have been made to the rooms, and by that of the addition, ten new bed-chambers would have been added to the house. Plaintiff below claimed that defendant below had failed to erect the additional story, as he agreed to do, and had simply erected a mansard roof; that the porches were not tom down but boarded in, permitting the rain and snow' to beat in as usual. That what the defendant did was done so carelessly as to deprive plaintiff of three months’ use of the house. The plaintiff paid two months’ rent, as it became due, and refused to pay any more until defendant complied with his agreement. The defendant issued several landlord warrants and seized goods of plaintiff, who issued the several replevins in these cases. The same evidence was given in each case, the same points presented to the court, and the same rulings.</p> <p>In taxing the costs, the court, on motion, doubled defendant’s bill of costs, under the Act of Assembly of March 21st 1772.</p> <p>The court below affirmed plaintiff’s first point, to wit: that “ as the consideration of the lease given in evidence is simple, the- contract is entire,” and said, “the covenant by first party to ‘erect an additional story on said building, with rooms, and to extend fifty feet, beginning at the west end of said hotel, the old porches to be taken down and converted into proper hall-ways,’ did not enter into the essence of the contract, and to the whole of the consideration so as to defeat the rent in toto, in case Prescott took possession of the demised premises and continued in the enjoyment of the same.”</p> <p>The court below' answered the following points of plaintiff below in the negative:—</p> <p>3. That if the jury believe Otterstatter failed and refused to perform his contract to erect the additional story with rooms, and to take down the old porches, and to convert them into proper hall-ways, he cannot recover in this case unless he satisfies the jury that performance upon his part was prevented or waived by Prescott, the plaintiff.</p> <p>4. That if the jury believe, from the evidence, that the work shown to have been done by Otterstatter’s direction was defective, negligent and a worthless performance, it is in law non-performance, and is to be treated as in fact it is, no performance or part performance whatever, and he cannot recover any portion of the rent claimed, unless performance was prevented or waived by Prescott.</p> <p>5. That as the contract in this case is entire, if the evidence shows that Otterstatter’s pretended performance of his covenants for improvements was utterly worthless and useless, Otterstatter cannot recover rent, and the verdict should be for plaintiff.</p> <p>The 7th point of the plaintiff below was as follows:</p> <p>That if the jury find, from the evidence, that the plaintiff’s consent to the lease of the 31st of March 1873, was obtained by defendant’s, Otterstatter’s, promise and undertaking, embodied and expressed in said lease, “to erect an additional story over the building, with rooms, to extend fifty feet, beginning at the west end of said hotel, and the old porches to be taken down and converted into proper hall-ways,” and that the defendant, Otterstatter, after the execution of the lease, failed and refused to make such additions and alteration, the plaintiff, Prescott, is entitled to »a verdict in this case.</p> <p>The court below answered this point in the negative, and said :—</p> <p>“ The fact as assumed authorized Prescott to rescind the contract. If he did not, and held the premises under his lease, he is not entitled to a verdict discharging him from all the rent, unless the premises, for the purpose for which leased, were worthless without such additions and alterations. Though damages may be deducted from the rent, and if equal to all the rent, or in excess thereof, Prescott is entitled to a verdict.”</p> <p>Verdict having been rendered for defendant below, the plaintiff below took this writ of error, and assigned for error the answers to the points above, and also the overruling plaintiff’s exceptions to prothonotary’s re-taxation of costs, and in granting defendant’s motion for double costs.</p>