Volume 86 — Pennsylvania State Reports

<p>Error to the Court of Common Pleas of Butler eount-y. Of October and November Term 1877, No. 287.</p> <p>Quo warranto issued upon the suggestion of the Attorney-General against George Walter, requiring him to show by what authority he exercised the functions and received the emoluments of the office of high sheriff of Butler county.</p> <p>It was averred, in the suggestion, that said Walter had been returned as elected in November 1875; “ that while a candidate for said office he was wilfully and corruptly guilty of bribery, fraud- and the wilful violation of the election laws of the Commonwealth, in that he offered and promised one John McLure to make him his deputy, and furnish him money in his business for his vote and support for the said office of Sheriff, and did make him deputy after his election in pursuance of said promise; that while the said Walter was a candidate for said office, he furnished said McLure with money, and assisted him in procuring the same in pursuance of said promise, and paid the said McLure money to use in carrying the said election for him, for other purposes than for printing and travelling expenses, the dissemination of information to the public or for political meetings, demonstrations and conventions, or for any necessary and proper expenses expressly authorized by law, but for corrupt and illegal purposes in procuring his election; and the said Walter, while a candidate for said office, made other promises, and offered to give to the electors of said county of Butler, money, rewards and other valuable considerations for votes at his election; and did, wilfully and corruptly, use and pay money to a large amount, to wit: to the amount of five hundred dollars, to divers of the electors, whose names are unknown, of said county, for the purpose of securing and. controlling the votes of said electors at the election, at which he -was a candidate as aforesaid; and the said Walter, having taken the oath of office required by the constitution of the state of Pennsylvania, after he had been, declared elected to the said office of sheriff, did then and there commit and was guilty of wilful and corrupt perjury, having committed and been guilty of the acts and offences first above alleged and charged, which in said oath, taken as aforesaid, he denied; whereby the said Walter has become, and is disqualified from holding said office of sheriff of the county of Butler, and since the said first Monday in January 1876, he has usurped and does usurp on the Commonwealth therein, to the great damage and prejudice of the constitution and laws thereof.”</p> <p>To a rule to show cause why the writ of quo warranto should not issue the respondent filed a plea and answer, wherein the charges made in the suggestion were specifically denied.</p> <p>After hearing, the court was of opinion that defendant should be legally adjudged guilty of the crimes charged in the information before proceedings could be instituted to remove him from office, and therefore discharged the rule; but at the request of counsel for the Commonwealth, directed the writ to issue pro forma as of the date of the rule to show cause, and entered judgment quashing the writ.</p> <p>To this judgment a writ of error was sued out by the Commonwealth, and the Supreme Court reversed the court below and awarded a procedendo, holding that a writ of quo warranto may issue against a public officer for bribery, fraud or wilful violation of the election laws without a preliminary conviction for the offence, and that the question whether the offence had been committed may be tried in the proceeding under the quo warranto. See Commonwealth v. Walter, 2 Norris 105.</p> <p>The record having been returned to the court below an amended suggestion and specifications were filed, which set forth the names of the parties to whom it was alleged corrupt promises were made, and the nature of the promises, and the case was at length fixed for trial on the 1st day of October 1877. On that day the respondent filed a demurrer to the whole of the information, and denied that it was sufficient in law. to compel him to plead or answer thereto or join issue thereon for the following reasons :—</p> <p>1st. The charges of alleged promises to pay money, appoint to office, or some other valuable thing, are not an offence as 'charged.</p> <p>2d. The charges of payment of money or appointment to office, or of some other valuable thing, are not sufficient, because the person or persons are not charged, named or alleged to have been electors, qualified to vote at said election. He therefore prayed judgment on said demurrer.</p> <p>The plaintiff’s counsel moved for leave to file an additional amendment, which the court, McJunkin, P. J., disallowed and entered judgment on the demurrer for the defendant.</p> <p>. The Commonwealth then took this writ, assigning for error this entry of judgment. Subsequently to the taking out of the writ, the following certificate of-the president judge was filed:—</p> <p>“I, E. McJunkin, President Judge of the Court of Common Pleas of Butler county, in the OommonAvealth of Pennsylvania, do hereby certify that the demurrer of respondent in this case was sp-.'-cial to the question of whether the persons alleged to have been bribed, &c., were sufficiently charged as qualified electors of the county of Butler, or persons duly qualified to vote at that election, in the suggestion, and that the arguments of counsel on both sides related to this point exclusively, and that the judgment of the court was upon this point alone though seemingly general.”</p>

<p>Error to the Court of Common Pleds of JErie county: Of October and November Term 1875, No. 49.</p> <p>Assumpsit by the township of Girard against the borough of Girard. Defendant pleaded non assumpsit.</p> <p>In 1864 the United States made a draft for men to fill its armies; the quota of the borough of Girard being fourteen. To fill this quota the borough authorities sent agents south to procure volunteers. While these agents were absent, and their success unknown, Leffert Hart, burgess, and L. S. Wright, one of the council of said borough, learned that there were in said borough six men who were willing to volunteer for a bounty of $300 each. There were then present in the borough but two of its council, L. S. Wright and Henry Ballard, and its burgess. Hart and these three not constituting a quorum, the question was discussed, whether it was best to accept these volunteers, sundry of the citizens urging the acceptance, which Hart and Wright favored, but from which Ball dissented, on .the ground that they had better wait until the agents, who had been sent in search of volunteers, could be heard from. Under these circumstances Hart and Wright secured the seven men towards filling the quota of the borough, if it should want them, and paid to each $300 out of their own funds. After-wards, ascertaining that the agents of the borough had secured a sufficient number of men to fill its entire quota, without consultation with any of the other borough authorities, Hart and Wright transferred these seven men to the township of Girard, and caused them to be credited bn the quota of the township; receiving for each man so credited the sum of $500. It appeared that, at the time of the transfer, Hart, who was the active man in making the same, stated to the agents of the township that the borough had no claim to the men; that he and Wright had paid for them with their own money, and had the right to make the transfer. On June 5th 1865, the borough, claiming that Hart and Wright were its agents in this transaction, demanded that they should refund to the borough the money obtained from the township for the men thus transferred, and afterwards, on September 5th 1865, commenced an action on the case against them, declaring that they, as agents of the borough, had secured the seven men to fill pro tanto its quota for $300 each, and, in violation of their duty, for a consideration of $3500, had wrongfully procured the credit of the seven men to be transferred from the quota of the borough to that of the township, in which suit they recovered a verdict and judgment against Hart and Wright for $1757, and collected the money. This action was brought by the township to recover this amount from the borough. An arbitrator was chosen, before whom the plaintiff, having given its evidence and rested, the defendant offered a receipt of the attorney of the borough for the amount of the above judgment with interest, which the arbitrator, under objection,( admitted. First assignment of error.</p> <p>Defendant further offered the record in the above-mentioned suit, which was admitted under objection, the arbitrator ruling that as the plaintiff had given parol evidence to show what was the purpose of the suit and the real matters controverted therein, therefore the record should be admitted for a like purpose. Second assignment of error.</p> <p>Defendant also proposed to show by Henry Ball, the' secretary of the council of the borough, that there never was any authority given to Hart and Wright to transfer the seven men. Evidence admitted under objection. Third assignment of error.</p> <p>Also: to prove by same witness that the money received from Hart and Wright was not claimed as money received by them for the use of the borough, but as damages suffered by the borough in having to put men into the service of the United States in 1865, resulting from the official misconduct of Plart and Wright. Admitted, under objection, as rebutting plaintiff’s parol evidence of what was claimed in that suit. Fourth assignment-of error.</p> <p>The plaintiff -submitted the following points, to which are appended the answers of the arbitrator:—</p> <p>1. Where an agent pays the money of his principal without authority, and contrary to law, and this is known to the party receiving it, it may be recovered back from the party so receiving it by the principal.</p> <p>Answer. I affirm this point, but I do not perceive its applicability to the evidence in this case.</p> <p>2. The road commissioners of the township of Girard, in the transaction of buying and paying for these men, were ex offieio the agents of the township, and having paid to the defendant the sum of $200 per man without authority from the township, and against the express provisions of the Act of March 1864, which expressly forbids the payment of more than $300 each for volunteers, and this being known to the defendants, plaintiff is entitled to recover from the defendants the amount received over and above the sum of $300 each for' said seven men.</p> <p>Answer. The road commissioners of the township of Girard were, by virtue of their office and sundry Acts of Assembly, authorized to hire and pay volunteers to fill its quotas in the army of the United States. I find no evidence that they acted in this matter “ without authority from the township.” Their acts therein are to be considered as the acts of the township to the extent of their legal authority. If they exceeded their authority in paying more money for volunteers than authorized by Act of Assembly (I do not decide that they did), it was wrong; but I cannot perceive how such a wrong could confer a right upon the township, or how the .township, which received from the purchase all the benefits it expected to receive, can (particularly in the absence of all evidence of fraud or misrepresentation) recover back the money it voluntarily paid, after having received the whole benefits of the purchase.</p> <p>3. When the borough of Girard claimed the $1400 received by Hart and Wright over and above the $300 paid to each of the seven men, it was in law a ratification of the act of Hart and Wright in the transfer of the seven men, and equivalent to precedent authority.</p> <p>Answer. Whether the borough claimed for money had and received for its use by Hart and Wright, or claimed ex delicto in damage for violation of their duty, was a controverted question of fact. The record in evidence showed the claim to be in damages for tort. If it were ex contractu, for money had and received for the use of the borough, it would, as between the borough and Hart and Wright, be a ratification of the act of selling the credit of the men. But I cannot perceive how that would enable the plaintiff, who bought the men and got all it contracted for, to recover in this case.</p> <p>The arbitrator then made an award that the plaintiff had no cause of action. The court subsequently overruled the exceptions thereto, and entered judgment on the award. The plaintiff then took this writ; its assignments of error being those- heretofore noted, together with the answers to its points.</p>

<p>Error to the Court of Common Pleas of Crawford county: Of October and November Term 1877, No. 41.</p> <p>Covenant by D. O. Shoemaker and others, against Henry Gottman and others, .on a guarantee in a mortgage executed by' the defendants. The defendants having filed an affidavit of defence the court entered judgment against them because of its insufficiency when they took this writ, and alleged that the court erred in thus entering judgment, for the reason that the plaintiffs had not complied with the rule of court, which'required that either a copy of the mortgage should be filed or that a reference should be made either in the praecipe or declaration to the office, book or page where it was recorded.</p> <p>The rule of court is as follows :—</p> <p>“ In all actions founded on book accounts, bills, notes, bonds and other instruments of writing for the payment of money, and in all actions upon covenants or contracts for the payment of money, or for the performance of some other duty or thing of a specified cash value, whether under seal or. not; in all suits upon recognisances, judgments, mortgages, mechanics’ liens and other records, and in actions of debt upon foreign judgments, and the judgments of justices of other states, if the plaintiff shall have filed a copy of the' account or instrument of writing on which the suit is founded, on or before the return-day of the writ, he shall be entitled to a judgment by default for the amount so claimed, at any time after twenty days from and after the return-day of the writ, unless the defendant, or some one for him, knowing the facts, shall have filed an affidavit of defence, in which the nature and character of the defence shall be clearly and specifically stated.</p> <p>“ Provided, That in suits upon recognisances and instruments on record in any of the courts or offices in the county, a full copy thereof need not be filed, if the praecipe or narr. contain a full reference to the office, book and page where the same may be found.”</p>

<p>Error to the Court of Common Pleas of Qrawford county: Of October and November Term 1877, No. 223.</p> <p>The proceedings in the court below were as follows :—</p> <p>Ejectment was brought by Jesse A. Losee against John D. McFarland and wife for a house and lot in the city of Titusville. The writ was served on both defendants, who were about to remove from the premises. Under a rule of court plaintiff filed a brief of title, which set forth that the property had been sold to him as the property of McFarland, under a judgment obtained against the latter. An order was made upon defendants to answer within twenty days, which they failed to do, but a sworn statement was filed by Milton Stewart, claiming title to the property by a conveyance prior to the judgment on ivhich it was sold to the plaintiff, and alleging that at the time of the service of the writ in ejectment the defendants were in possession of the property as his .tenants under a lease. Plaintiff moved to strike this statement from the record, which the</p> <p>court refused, and ordered defendants to answer to plaintiff’s brief of title, which they did in the terms of the statement made by Stewart. A rule of reference was entered by plaintiff, and an award madé in his favor on which judgment was entered. An habere facias issued, which Stewart on an ex parte affidavit procured an order to stay, said affidavit averring that Stewart’s two sisters, Eva and Lydia, were the owners of the property prior to the entering of plaintiff’s judgment against McFarland, and that at the service of the writ of ejectment McFarland and wife were living on the premises as their tenants. A rule was then granted by the court to show cause why. the writ of habere facias as to said Eva and Lydia Stewart should not be stayed, which the court subsequently made absolute, which action was assigned for error by the plaintiff, who took the writ.</p>

Of October and November Term 1877, No. 90. Assumpsit by Austin Porter against Mrs. Elizabeth Winternitz for work done , and materials furnished'in the repair of her property. Mrs. Winternitz, a married woman, was engaged in the grocery and provision business in the city of New Castle, Lawrence county. She was living apart from her husband. In 1871 she obtained a decree from the Court of Common Pleas of said county, authorizing her to act as a feme sole trader.

<p>1. Plaintiff in execution issued a second pluries fi. fa., and on the allegation that said writ was prematurely issued, the court granted a rule to show cause why the same should not he set aside at the costs of the plaintiff. The writ was returned pending the rule, hut, while it was yet undisposed of, the plaintiff issued a third pluries fi. fa., which the-court, on motion, set aside, on the ground that it could not issue pending the aforesaid rule. Held, that this action of the court was erroneous.</p> <p>% Held, also, that the court erred in setting aside the vend. ex. issued in pursuance of said third pluries fi. fa.</p>

58. Ejectment for twenty-five acres of land, brought by John Wolford and Bachel, his wife, in right of the wife. Held: under the authority of Beegle v. Wentz, 5 P. F. Smith 369, and Boynton v. Ilousler, 23 P. F. Smith 453, that as Mrs. Wolford had a claim to the land by an unrecorded deed, whether it conveyed a good title or not, Herrington was, under the facts of the case, converted into a trustee ex maleficio, and further, that the testimony in the…

<p>1. The rule of the common law that a release of one partner operates as a release of his co-partners does not apply where it is manifest that the intention was to confine the release to the one partner.</p> <p>2. Where a firm debt is contracted in Pennsylvania and judgment therefor is recovered in that state against one partner alone, and afterwards a release is executed to the other partner in another state, the>effect of the release upon the judgment is to be determined by the law of Pennsylvania.</p>

<p>1. In trover after the plaintiff has demanded his goods and the defendant refused to deliver them, he is not hound to accept a tender of them where they have deteriorated in value since the* conversion.</p> <p>2. AYhere one demands his chattels and there is such a withholding of them as amounts to a conversion, a right of action accrues which will not be divested by a subsequent offer to return the goods or a notice to plaintiff to come and take them away.</p>

<p>1. In an action of replevin, where the verdict is for the defendant, the failure of the jury to find the value of the goods or the amount of rent in arrear will not prevent the entry of judgment thereon for defendant.</p> <p>2. In an action of replevin in Court No. 2 of Philadelphia county,for goods distrained for October’s rent, the verdict was for defendant. Before the entry of judgment on this verdict, in Court No. 4, of the same county, in another action of replevin, involving the right for November’s rent of the same premises, the verdict was for plaintiff. The plaintiff entered judgment on the verdict in Court No. 4, and moved for an arrest of the judgment in No. 2, on the ground that the entry of judgment in Court No. 4 was conclusive upon Court No. 2, Held, that this was no ground for an arrest of judgment, and the court properly entered judgment on the verdict for defendant.</p>

<p>Error and certiorari to the Court of Oyer and Terminer and General Jail Delivery of Clearfield county: Of May Term 1878, Nos, 47 and 48. Certified from the Middle District.</p> <p>Indictment of Martin V. Turner for the murder of Maria J. Waple. Defendant pleaded “Not guilty.”</p> <p>The indictment was drawn as follows :—</p> <p>“ In the Court of Oyer and Terminer for the county of Clear-field, January Session 1877, County of Clearfield ss. The Grand Inquest of the Commonwealth of Pennsylvania, inquiring for the county of Clearfield, upon their respective oaths and affirmations, do present, That Martin V. Turner, late of the said county of Clearfield, on the third day of November, in the year of our Lord one thousand eight hundred and seventy-six, at the county aforesaid, and within the jurisdiction of this court, with force and arms, &c., in and upon the body of one Maria J. Waple, in the peace of God and the said Commonwealth, then and there being, then and there feloniously, wilfully, and of his malice aforethought, did make an assault, and her, the said Maria J. Waple, then and there feloniously, wilfully, of his malice aforethought, did kill and murder, contrary to the form of the Act of Assembly,” &c.</p> <p>On behalf of the prisoner it was alleged that this indictment was fatally defective, inasmuch as it did not aver that the deceased was living Avhen assaulted by the prisoner; and for the additional reason that it did not state the station, title or degree of the prisoner. 25th and 26th assignments of error.</p> <p>The indictment when sent to the grand jury was endorsed “ True bill,” and the prisoner alleged that it could not be sustained, for it had not been found a true bill by the grand jury, the endorsement having been made by the District-Attorney before reaching them. 24th assignment.</p> <p>At the trial, before Orvis, Additional Law Judge, it appeared that the deceased, Maria J. Waple, lived at Wallaceton, in Clear-field county, and was the divorced wife of Thomas J. Waple. About one o’clock on the 3d of November 1876, she started to visit her sister-in-law, Mrs. Jared Waple, who lived about two miles distant. No more was heard of her until the 8th of November, when her body was found in the woods about one hundred yards from the road leading to Jared Waple’s, with one gun-shot wound in the body and another in the top of her head. Turner and the deceased had been seen at the gate of the house of the latter engaged in conversation on the day of the murder, shortly before the deceased had started for the house of her sister-in-law, and very soon after she started two shots were heard in quick succession from the direction she had taken and- where her body was discovered. Turner, it was shown, left his house, a short distance from that of deceased, about one o’clock on the day of the murder. He arose from the dinner-table, went up stairs and started from his house with his gun. This gun had two barrels, one. of which was rifled and the other a smooth-bore, and the wound in the body of deceased was apparently made by a rifle-ball and that in the head by buckshot. When the prisoner returned to his house in the evening both barrels of .the gun were unloaded, and he remarked that he had been after squirrels and had had bad luck. When the search was made, the tracks of what appeared to be a man and woman were found in the vicinity of the body, and tracks which in size corresponded with those made by the shoes of Turner were found leading in the direction of the house of one Williams, about a mile and a half distant, where Mrs. Williams testified Turner came on the afternoon of the 3d of November, and that he had a gun in his hand.</p> <p>The court permitted the Commonwealth to show that from 1869 to June 1876, there had been a criminal intimacy between the prisoner and the deceased, and that these relations ceased on the latter date, when there had been a quarrel between them.</p> <p>The admission of this testimony was the 1st assignment of error.</p> <p>In chai'ging the jury, the court, commenting on this testimony, said: “That for a long time — from about the year 1869 down until the summer of 1876 — there was a criminal intimacy existing between the defendant and the deceased. Now, has that fact been proven to your satisfaction? Because, if it has not — if the evidence in the case does not show that this intimacy existed — then, of course, it must be thrown out of the case. It cannot form a part of the facts from which you can legally, justly and appropriately infer the guilt of the defendant.” This portion of the charge constituted the ninth assignment.</p> <p>The defendant called a number, of witnesses to prove an alibi. There was evidence that the prisoner, after leaving the dinner-table, on the 3d of November, was engaged in making repairs to the roof of a house, until about half-past one o’clock; and the freight agent at the railroad office testified that the prisoner came to the station, between two and three o’clock, on the day of the murder, and assisted him in checking manifests for fifteen or twenty minutes; and, on cross-examination, the same witness said that Turner had several times called .witness’ attention to this fact. Other evidence in relation to the alibi will be found in the opinion of this court, in their discussion of the charge of the court below, with reference to the attempt of the prisoner to manufacture evidence.</p> <p>The defendant offered to prove, by tbe constable who arrested him, that, on the night of November 11th 1876, he found him, about eight o’clock, at his father’s house, in bed; that he told him he was there to arrest him for the murder of the deceased, and that defendant replied: “ All right; I will go with you; I am innocent;” that he did not ask for a warrant, but accompanied the officer peaceably to the jail at Clearfield: this being offered to show absence of guilty fear, and that his conduct was consistent with that of innocence.</p> <p>The admission of this evidence, under objection, was the second assignment.</p> <p>To show the relations of the deceased toward Waple, her divorced husband, and to repel the presumption sought' to be raised by the Commonwealth that the prisoner was the only person who had any jealousy or a grudge against the deceased, the defendant offered evidence to show that Waple, the husband of the deceased, returned from the penitentiary in May 1875, and came to the house owned and occupied by deceased; that, although divorced, they lived together as man and wife until September of that year, when they separated by reason of a quarrel between them; that Waple, the husband, then went to Woodland, a distance of some three miles from Wallaceton; that he was arrested for non-payment of the costs in the divorce proceedings, and confined in jail at Clearfield; that, while there, some time in the latter part of October 1876, he requested deceased to bail him out of jail, and she refused; that he got out of prison, and was seen in the house of Mrs. Waple, at Wallaceton, on Friday night of November 3d, and on the Saturday night following, at Wallaceton early on Sunday, and beyond Wallaceton before daylight Saturday morning.</p> <p>David Quigley, one of defendant’s witnesses, having testified in chief that Waple was in the house on the Monday following the murder, and came out and asked him and one Strickland in, the Commonwealth proposed to ask witness, on cross-examination, for what Waple had asked them in, what théy did when they went into the house, and what was there said 'and done. This testimony was admitted, under objection, which -was the third assignment. Quigley testified that Waple told him he was searching for traces of the murder.</p> <p>The Commonwealth offered to prove, in rebuttal, the whereabouts of Waple, from the morning of Friday, November 3d 1876, until the evening of that day, where he was that night, his business at Wallaceton on Saturday morning, the 4th inst., and his business at Wallaceton on Sunday morning, the 5th inst.; also to show that at Bradford church he received word first that Mrs. Waple was missing, this being the evening that he was found, as testified to by defendant’s witnesses, in the house of deceased, looking for some trace of her whereabouts; also to show that, on that evening, November 6th, he went to John Bice’s house for the key to Mrs. Waple’s house, John Bice being her next neighbor.</p> <p>The admission of this evidence constituted the fifth assignment.</p> <p>The following points were submitted by defendant, to which are appended the answers of the court:—</p> <p>1. That the jury must be satisfied beyond a reasonable doubt that a murder was committed, and that the prisoner was the guilty agent therein, or they must render a verdict of acquittal.</p> <p>Ans. “ That is undoubtedly true, and we cheerfully affirm the point. You must be satisfied beyond a reasonable doubt: first, that the murder was committed; second, that this defendant was the guilty agent, or you would not be justified in finding a verdict of guilty. What is a reasonable doubt ? Not a mere figment of the intellect, not the shadow of the substance of a theory, but a substantial, reasonable doubt; such a doubt as would make an ordinarily prudent man hesitate before coming to a conclusion. If such a doubt exists, of course it must work the acquittal of the prisoner.” Nineteenth assignment.</p> <p>3. That the several circumstances relied upon by the Commonwealth to convict the prisoner, must each be proved to be true beyond all reasonable doubt, and if any of them be not so proved, it 'is the duty of the jury to disregard such circumstances in making up their verdict.</p> <p>Ans. “We affirm this point with this remark: That those circumstances relied upon by the Commonwealth must be essential circumstances — necessary circumstances to prove guilt, * * *</p> <p>every fact and circumstance essential to make out the prisoner’s guilt must be proved.” Twentieth assignment..</p> <p>4. That the jury must examine the facts proved with impartial minds, giving them their weight, as well of favor as of disfavor to the prisoner, and they cannot convict him unless the conclusion of his guilt flows naturally from these facts, and is consistent with all of them ; but if there be any of the facts absolutely inconsistent with his guilt, they must acquit him.</p> <p>Ans. “ We affirm this point also, with the remark as before, that it must apply to essential facts proven in the case. If there is a fact proved which is inconsistent with the defendant’s guilt, it shows that the theory of his guilt cannot be true; but that some witness testified to something which is inconsistent with his guilt would not work his acquital, unless you are satisfied the fact alleged is true. If any fact proved in the case, that is established by satisfactory evidence, is inconsistent, and totally incompatible with the theory of his guilt, of course it must work his acquittal.” Eighteenth assignment.</p> <p>5. That the jury must acquit the prisoner unless the evidence of the facts proved are absolutely incompatible with his innocence, and - cannot be explained upon any other reasonable theory than that of his guilt; and if they find that the crime could have been committed by another, and the facts proved still be true, they must acquit the prisoner.</p> <p>Ans. “We told you in our charge that the facts proved must be such as to exclude every reasonable hypothesis but that of the prisoner's guilt. We affirm this point.”</p> <p>In their general charge, the court, inter alia, said:—</p> <p>[“ There are persons who think that circumstantial evidence does not prove anything; it is a common thing to hear persons who, after hearing the trial of a case depending on circumstantial evidence, use an expression like this : ‘ I have no doubt the fellow is guilty, but the Commonwealth could not prove it.’ They convict themselves of error in the very expression they make use of. For if the evidence satisfied them that the man is guilty, it is proved, it is what the law requires. That is what the law requires of all evidence ; it must be of such a character as to convince the intellect and conscience of the jury that the party is guilty; then it amounts to proof, and not till then.”]</p> <p>[“ Now you are to consider this case in all its bearings. You are first to take the case of the Commonwealth and see if they have proved, by clear and satisfactory evidence, the facts from which they ask you to infer the defendant’s guilt. If the facts themselves are not proved, no legal inference can be drawn from them. If they are proved, then you must determine as to the materiality of these facts; whether all the facts can be true and yet the defendant be innocent. If they are not of a conclusive character, then, of course, it does not necessarily follow that the defendant is guilty. He may be guilty and he may.not.”]</p> <p>[“ It is alleged on the part of the Commonwealth that the defendant was away from home, and in possession of an instrument of the kind which must have been used in committing this act. Now, has that fact been proved ? If the' evidence of the Commonwealth leaves it in doubt when considered alone, or if the .evidence of the defendant shows that it could not be true, then it is not a fact in this case. But if it is proved, satisfactorily proved, proven to your satisfaction, so you believe it, then it is a fact proven in this case. It is, however, to be considered in determining whether that allegation is proven to exist; you must consider and weigh all the testimony bearing upon it, whether that testimony comes from the Commonwealth’s witnesses or the witnesses for the defendant.”]</p> <p>[“ It is alleged in the next place by the Commonwealth that there were tracks, coming from near where the body was found, leading through the woods for nearly two miles, and coming to a place where the prisoner was upon that.day; that these tracks were the tracks of the prisoner ; that they correspond in size, in length, in width and with peculiarities that are shown to have existed in his boots. Now is that a fact proved in this case ? Does the evidence satisfy your minds that that is true ?”]</p> <p>[“ The fact of the defendant’s guilt, it is incumbent upon the Commonwealth to prove by affirmative evidence. The defence have aright simply to sit still and say, ‘You have not proved your allegations.’ They question the validity of the proof; the satisfactory nature of the evidence; the credibility of the witnesses; the truth of the evidence. If they have satisfied your minds that there are weak points in. the case of the Commonwealth ; that they have not proved any material fact, or if the facts proved are not of a conclusive character, it will be your duty to acquit the defendant.”]</p> <p>[“ If the evidence does clearly point to him as the guilty agent, then no consideration whatever should prevent you from convicting him. If the evidence does so satisfy your minds and consciences that he is guilty, the fact that he belongs to one family or another; that he is rich or poor; that he may have rich relations, or he may not have them; that he may have a father or mother, sisters or brother, to whom his conviction would be a terrible blow, must not weigh with you, if the evidence shows that he is guilty. The fact that the public want him convicted, if it is true that they do, should not weigh one feather’s weight to convict him, if the evidence does not satisfy your minds and consciences that he is guilty.”]</p> <p>The foregoing portions of the charge constituted, respectively, the seventh, eighth, tenth, eleventh, thirteenth and twenty-first assignments.</p> <p>The court again said:—</p> <p>“ It is alleged on the part of the Commonwealth that the defendant made efforts to manufacture testimony that was not true; that he attempted to get witnesses to swear to his presence at times and places where he was not.; that he called attention to a time and place where _ he said he was and afterwards denied it. Now, are these facts sustained by the proof? If it was proved that this defendant did so attempt to manufacture evidence that was false, it is a fact which you must consider.” Twelfth assignment.</p> <p>Again:—</p> <p>“ The next branch of the defence is of a different character, and of a more affirmative character. That is what is called in law an alibi. You should examine very carefully all the evidence bearing upon that question. An alibi is a perfect defence, when it is fully, clearly and satisfactorily established, but the burden is upon the person asserting it to establish it. If a defendant offers to show an alibi, the burden is upon him; there he becomes the affirmant; he becomes the actor, and the law requires him to prove to your satisfaction that his allegation of being somewhere else is true. This, from a negative defence, now becomes an affirmative one.” Fourteenth assignment.</p> <p>Again:—</p> <p>“ You must bear in mind all of those facts by which the credibility of the witnesses can be determined, to ascertain whether the proof of the alibi, or of the prisoner being elsewhere at the time the murder was committed, is made out. It is for you to say whether that fact is established. If it is sustained or satisfactorily proven, of course he cannot have committed the murder. Whether or not it is established, is of course for you. to determine. There is a considerable conflict or discrepancy in the evidence bearing upon the facts, but it does not necessarily follow that the persons who have testified to these discordant facts have necessarily perjured themselves. It is your duty to reconcile these statements without imputing perjury, if the discrepancies in the testimony can be reconciled upon the hypothesis of mistake. Judge of the different witnesses whether they tel] the truth or not, if their statements caii all be reconciled upon any reasonable hypothesis of truthfulness, and let the testimony of all the witnesses stand. You must determine with regard to each of these witnesses in your own examination, which was most liable to be mistaken,' what circumstances they show which would enable them seemingly to fix the time; this applies as well to days as hours or parts of days. * * * You must determine what is true. In order to do that you must scrutinize the evidence; you must consider the witnesses, who they are, what their character is in the community, whether their character for veracity has been assailed.” Fifteenth assignment.</p> <p>Again:—</p> <p>“ Then you must determine from all this, guided by these rules, whether an alibi has been proved or not. If proved, it constitutes a complete defence; if not proved, and if you think it has not, the attempt to manufacture evidence is a circumstance which always bears against the person. No innocent person is driven to manufacture evidence. If you believe that this defendant has attempted to manufacture evidence that is not true — has attempted to prove that he was at a place and time where he was not, then that is a circumstance against him. If his allegation is true — if his allegation is supported by truthful evidence, reliable evidence, then it goes to his defence.” Sixteenth assignment.</p> <p>The jury rendered a verdict of murder in the first degree, and his honor, Judge Orvis, sentenced the prisoner to be hung. This writ was then taken by him, and, among others, he assigned the errors noted above, together with the following :—</p> <p>Twenty-second assignment. That the indictment was found and the defendant tried and sentenced in a court unknown to the Constitution and laws of the Commonwealth, as the record named the court as the “Oyer and Terminer” and omitted “and General Gaol Delivery.”</p> <p>Twenty-third assignment. That the defendant was tried and sentenced by an additional law judge, who has no constitutional power to try pleas of murder in a “ double district.”</p>

<p>Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1877, No. 86.</p> <p>Case by Mary Wurst, and others, the widow and minor children of John A. Wurst, against Frederick Gramlich, to recover damages for the death of said John A. Wurst, which plaintiffs alleged was occasioned by the negligence of defendant in not properly guarding an excavation, into which said Wurst fell and was killed.</p> <p>The facts are fully stated in the opinion of this court.</p> <p>At the trial before Mitchell, J., among other points, the defendant submitted the following:—</p> <p>3. The place of this excavation being on private property, and not on any line of street or public highway, but some distance therefrom, and the said decedent (not being engaged in any manner whatever by the said defendant or his agents) had no right to be there, and was a trespasser, and the verdict should have been for the defendant.</p> <p>The court refused the point, and charged the jury, inter alia, substantially as follows :—</p> <p>“ Now as to the defence, it is contended by defendant:—</p> <p>“First. That there is no direct evidence how the accident happened, and therefore no sufficient evidence of defendant’s negligence. In support of this view, defendant’s counsel has called your attention to the fact that Wurst, when he fell in, was not on his route home from the place where he was last seen at work. His home was in another direction. Further, he was a trespasser on the lot where the excavation was, and had no legal right to be there at all.</p> <p>“I instruct you that those facts do not absolutely prevent a recovery by the plaintiffs. A man is bound to exercise reasonable care even toward a trespasser. But these facts bear very strongly on the question of what was reasonable care on the part of defendant under the circumstances — in other words of his negligence, and also of the negligence of the deceased. A trespasser is bound to proceed with more care than where he has a right, and on the other hand, the defendant was not, in ordinary circumstances, bound to anticipate a trespass.</p> <p>“ Secondly. Has the plaintiff proved to your satisfaction, that under all the circumstances of the case, the defendant was guilty of negligence ?”</p> <p>[Here his honor reviewed the evidence as to the nature of the ground; the testimony for and against the existence of paths across the open lots, the habit of people to cross the lots, &c., and continued:] •</p> <p>“Now you are to judge from all this evidence whether the defendant was negligent in leaving his excavation without lights and without a fence, under the special circumstances of that night. There had been a serious accident, resulting in loss of life, and there was, according to. all the testimony, a crowd of people about the place all the afternoon. This in itself would impose on the defendant more care in regard to his excavation than under ordinary circumstances; it increased the danger of injury to trespassers, as to whom, as I have already' said, the defendant owed the .duty of a reasonable care; not such degree of care as required as to people who should be habitually and lawfully there, but such as under all circumstances was reasonable to require even as to others.</p> <p>“ In judging of this care, however, the defendant is entitled to have you consider the facts that this was an extraordinary occurrence, such ás he was not bound and in fact Could not anticipate ; that the street was not opened through for public travel; that the ground between the fallen ice-house and the edge of this excavation was not only steep and up-hill, but was also’ encumbered with piles of lumber and the debris of the fallen ice-house, so as to make it unlikely that any one'would clamber over them from that direction, and in general the want of probability that any person would be injured by falling into his excavation.</p> <p>“Lastly. You will consider the question whether the deceased was negligent in going towards the cellar on a dark and rainy night, &c.”</p> <p>■ The court then proceeded to state the law as to contributory negligence, and called the attention of the jury to the necessity of care on the part of Wurst, whether he knew the dangerous character of the locality, or, still more, if he was ignorant of the ground and ventured on it in the dark, and instructed them that if they believed him guilty of contributory negligence it would be a bar to a recovery. The verdict was for plaintiff for $4000, a remittitur for $1000 of which was subsequently filed by plaintiffs, and the defendant took this writ, assigning for error the refusal of the court to affirm his point.</p>

<p>Appeal from the decree of the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1876, No. 202. In equity.</p> <p>Bill in equity filed by Mary Fearon, the executrix and legatee under the will of Samuel P. Fearon, deceased, against John V. Creeley, B. Schultz, and the Pennsylvania Railroad Company. Creeley was duly served, but made no answer to the bill, nor was he represented by counsel. The case was, however, proceeded with as if he had been present or represented. Schultz and the Railroad Company filed separate answers. It appeared that Samuel P. Fearon died in August 1865, at which time he was possessed of twenty-three shares of Pennsylvania Railroad stock. In 1860 said decedent pledged thirteen of said shares as collateral security for a loan, and at the same time signed a blank power of attorney on the back of the certificates, as follows:—</p> <p>“Know all men by these presents, that I, the undersigned, for value received, do hereby irrevocably constitute and appoint - - to be my true and lawful attorney, for me and in my name and behalf to sell, assign, and transfer unto--, or to any other person, or persons,-shares of the capital stock of the Pennsylvania Railroad Company. And further, one or more persons under--:-, to substitute with like power.</p> <p>In witnes's whereof, I have hereunto set my hand and seal, this twenty-fifth day of January 1860.</p> <p>Samuel P. Fearon. [seal.]</p> <p>Witnesses present:</p> <p>S. L. Smith,</p> <p>Wm. Donovan.”</p> <p>At the maturity of the loan it was paid by decedent, and said shares were returned to him, and remained in his possession up to the time of his death. -The powers of attorney were never cancelled. The plaintiff, Mary Fearon, was the executrix of decedent’s will, and in 1871 she took these certificates of stock, with other bonds, and deposited them for safe-keeping with Creeley, who, at that time, was a lawyer in good standing, a.nd was acting as the legal adviser of the executrix, and had been for several years collecting the dividends of the estate. In 1870, Creeley, pretending to be the agent of Fearon, applied to Schultz for a loan of $1000, and pledged these shares of Pennsylvania Railroad stock as collateral security therefor, giving to Schultz two judgment notes, to which he forged the name of Fearon, and delivering to him the certificates of stock, with the blank powers of attorney. Creeley converted the money to his own use. The notes not being paid at maturity, Schultz, in 1872, went to the office of the railroad company and had the stock transferred to himself, and he subsequently disposed of the same. The clerk of the company/ it appeared, made no inquiries, but directed Schultz to write his name on the blank powers, and the shares of stock were transferred to him. The clerk who made the transfer was dead at the time this bill was filed. It seems that the company made no effort to discover whether the letters of attorney were still unrevoked. It relied upon the fact that the letters were irrevocable, and contended that it was not responsible, inasmuch as these irrevocable letters had affixed thereto the genuine signatures of S. P. Fearon, and that the transfers were made in the ordinary course of business and in the utmost good faith. The bill alleged that the company was negligent, in not making the proper inquiries as to whether Schultz had authority to write his name in the blank powers; that the long time that had elapsed since their execution, namely, thirteen years, should have put the company upon inquiry to ascertain whether Fearon was still living, and that the loss occurred from their failure to so inquire. The cause was referred to a master, who reported a decree against all three defendants. The court below confirmed the decree as to Creeley, reversed it as to Schultz, and made a decree that the railroad company should issue to the plaintiff “duplicate originals of the certificates of stock so transferred,” from which decree the company took this appeal.</p>

<p>Certiorari to the Court of Quarter Sessions of Philadelphia county: Of January Term 1877, No. 115.</p> <p>The proceedings in the court below were as follows :■ William Conway and others, on the 2d of October 1875, filed a petition in the Court of Quarter Sessions, which set forth that “ they were the owners of real estate upon the south side of Chestnut street, between 15th and 16th streets; that the line of the houses on the south side of Chestnut street, as at present built, is south of the established line of the street; that the necessity of business and travel demand that the said street be widened at least to the extent that the houses recede from the street. They therefore pray that a jury be appointed to view the said locality, and to report upon the expediency of widening said street between said points.”</p> <p>The court on the same day appointed a jury, who subsequently reported that the necessities of business and travel demand that Chestnut street, between Fifteenth and Sixteenth streets, be widened on the south side thereof to the extent that the houses or buildings on said south side recede from the present established south line of said street, and therefore that it is expedient that the said Chestnut street, between Fifteenth and Sixteenth streets, should be widened upon the south line thereof, so that the width of said street should be fifty-seven, feet six inches from the present north line of said Chestnut street, as established by law.</p> <p>The court overruled the exceptions filed to this report and confirmed the same, when John Crump and others, parties interested, took this writ, alleging, among other errors, the want of jurisdiction in the Court of Quarter Sessions.</p>

<p>No appeal lies from the decree of the Court of Quarter Sessions in the case of a street or road.</p>

4, of Philadelphia county: Of January Term 1877, No. 75. Assumpsit' by the Girard Life Insurance, Annuity and Trust Company, assignees of a mortgage, against William M. Stewart, the purchaser of the premises upon which said mortgage was secured, and who took a deed to said premises “ under and subject” to said mortgage.

<p>Error to the late District Court of Philadelphia county: Of January Term 1875, No. 141.</p> <p>Covenant by Grace A. Boileau against the Connecticut Mutual Life Insurance Company, on a policy of life insurance. The plaintiff died after the trial, and E. J. Groom, her administrator, was substituted in her' place upon the record. The plaintiff in her narr. averred that the defendant company, in consideration of an annual premium of $434.40, had insured the life of her husband, James M. Boileau, for the sum of $5000 ; that said James M. Boileau died on the 24th of May 1873; that satisfactory proof was duly made to said corporation of his death, and all the conditions required by the policy had been fulfilled; yet, upon demand, the said company had refused to pay the said $5000, &c. The policy contained the following words : “ or if he shall die by suicide or in violation of any law, * * * then in each and every of the foregoing cases this policy shall become and be null and void.” The defendant filed a special plea, which set forth that the policy of insurance in question was issued by defendant and accepted by said party insured, upon the express condition that if said James M. Boileau should die' by suicide, then the said policy should be void, and that on the 24th of May 1873, said Boileau did die by suicide, by drowning himself in the Neshaminy creek, in Bucks county, Pennsylvania.</p> <p>The plaintiff replied that at and previous to the time when said James M. Boileau died he was insane ; that his death was not the result of his voluntary and intelligent act, and that he did not die by suicide, within the true intent and meaning of said policy.</p> <p>At the trial, before Hare, P. J., the following question was reserved for the court in banc: “ whether the policy in suit was forfeited by the suicide of Boileau, he being insane at the time, but intending to take his life, knowing that death would result from what he did; judgment to be entered for the plaintiff in the sum of $5194.50, if the court are of opinion that such insanity does, not avoid the forfeiture, otherwise for the defendant. This consent not to take effect unless the jury find that Boileau was insane.”</p> <p>It was not disputed that Boileau voluntarily threw himself into the creek, that the act was premeditated, and that he had a full knowledge of the result to which it would lead.</p> <p>The court having reserved the foregoing question, as stated, charged, inter alia, as follows : “ The defendants in this case contend that suicide is synonymous with self-destruction, and occurs whenever one designedly takes his life, although he has lost the power of self-control, or is unable to distinguish between right and wrong. If this he conceded, the insurance came to an end when Boileau threw himself into the water and was drowned, whether he was or was not in his right mind. It may be true that suicide is sometimes used in this sense, but such is not its general signification. In the legal acceptation of the term it is self-murder, the felonious taking of one’s own life. It is a crime punishable with an ignominious burial and the forfeiture of the offender’s goods: 4 Bl. Com. 189. Such is the definition given by Blackstone; and if we turn to Johnson and Walker’s dictionary, or to Webster’s, we shall find that these authors give the legal meaning of the word as that in which it is commonly understood.</p> <p>“ It would be contrary to legal analogy that one who is not morally responsible for what he does should be visited with penal consequences ; accordingly, Blackstone says, the party must be in his senses and have arrived at years of discretion, or it is no crime.</p> <p>“ In this aspect of the case, Boileau’s death by his own hands, during a paroxysm of insanity, would not invalidate the policy. If the meaning of the clause is doubtful, the decision should be in favor of the plaintiff. It is a general principle that where the terms of a contract admit of two interpretations, that should be adopted which will avoid a forfeiture or prevent a breach of condition. This is only just, because it is always in the power of the party who makes such a stipulation to use language which cannot be misunderstood. I am the more willing to adopt this view, because it will enable me to leave the question of fact to you, and reserve the law for the consideration of the court above.”</p> <p>The court then left the question, “Was Boileau insane ?” as one of fact to the jury, but with the qualification “ that insanity, in the sense in which they were to consider it, must not be a mere disturbance of intellect, but such a complete change in the moral and mental condition of the patient as would put an end to his responsibility as a free and intelligent being. Unless the deceased was insane in this sense, his death by his own hand was “ suicide,” within the legal meaning of the term, and a forfeiture of the condition of the policy. It was for them to determine whether the painful ideas which had beset Boileau for many months, and which, agreeably to the evidence, were recurring with an ever-increasing force, at last so entirely overpowered his judgment as to render him unable to distinguish between right and wrong. If they found that he was not a responsible moral agent when he did the act which occasioned his death, they might find that it was not suicidal, under the terms of the contract in suit. If, on the other hand, they found, that although mortified by his inability to pay his creditors, apprehensive of the future, and suffering from painful thoughts which he could not repress, he was still able to discern that self-destruction was criminal, and might have resisted the impulse to which he succumbed, it would be their duty to render a verdict for the defendant, without regard to the pity which they might feel for Boileau, or the sympathy which must naturally exist in their breasts for his widow.”</p> <p>The jury rendered a verdict for the plaintiff for $5194.50. Subsequently, upon a motion on behalf of defendant for judgment on the reserved point, the court, Briggs and Mitchell, JJ., dissenting, refused the motion and entered judgment on the verdict, which was the error assigned by the company which took this writ.</p>

<p>Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January. Term 1877, No. 187.</p> <p>Hannah Ann Kauffman died on the 19th of September 1873, leaving a will, as follows:</p> <p>“Imprimis. It is my desire, immediately after my decease, that all my personal property shall bo sold at public sale and my funeral expenses paid, and the balance of funds to be invested and placed to the credit of my son, Leon Kauffman, which shall be explained hereafter.</p> <p>“ One year after my decease I desire my executors to sell my real estate, situate in Wood street, north side, west of Second street, at public sale, to the highest bidder, for current funds, the proceeds to be invested in the best securities bearing interest, the interest of my estate to. be paid to my son, Leon Kauffman, during his natural life, in half-yearly payments, for his sole benefit. If my son, Leon Kauffman, should die without issue, it is my desire that the Avhole amount of my investment be given to the Children’s Orphan Asylum.</p> <p>“As to all the rest, residue and remainder of my estate, real, personal or mixed, of whatsoever nature or kind, or wheresoever situate at the time of my decease, I do hereby give, devise, and bequeath the interest of my estate to my son, Leon Kauffman, during his natural life, to be paid to him half-yearly. If my son, Leon Kauffman, should die without issue, then the whole of the investment be given to the Children’s Orphan Asylum of this city as a gratuity.”</p> <p>And, lastly, appoints the Pennsylvania Company for Insurance on Lives and Granting Annuities, executors.</p> <p>David K. Bentley obtained a judgment against Leon Kauffman, and issued an attachment execution against funds held by the executors: A case was stated for the opinion of the court, embodying the foregoing facts, and submitting the following question : Does Leon Kauffman take an absolute or only a life interest under the will of his mother? If the former, then judgment to be .entered against the garnishees for the amount of the plaintiff’s debt, to the extent of the assets in their hands; if the latter, then judgment to be entered for plaintiff, to be paid out of the income accrued or thereafter to accrue.</p> <p>The court held that Kauffman had only a life estate. It appearing subsequently that all the income which had accrued had been exhausted by a prior attachment, the court entered judgment for the garnishees, when the plaintiff took this writ.</p>

<p>Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1878, No. 3.</p> <p>Appeal of the Pennsylvania Company for Insurance on Lives and granting Annuities, executors of Henry Etting, deceased, from a decree of the court awarding a claim of $1000 to Miss Miriam G. Etting out of said decedent’s estate.</p> <p>The auditing judge found substantially the following facts: The decedent died on the 15th of February 1876, leaving an estate worth about $90,000, and a will, wherein he gave to his sister, the claimant, the income from $40,000 thereof for life, with the right to bequeath $5000 of the principal. The testator and claimant resided together for about twenty years, he having charge of her business, keeping her bank book,' and making all the entries therein. About the 9th of December 1869, claimant received a legacy of $1000 from her deceased aunt, which testator deposited in his sister’s bank account. On December 27th 1869, this sum was drawn out by her check to his order, and received by him for investment for the claimant. On the stub of this check was the following, purporting to be made by her, but in his handwriting : “No. 19, Dec. 29 1869. Henry Etting, order $1000, for investment for my account.”</p> <p>Upon the stub of the bond book of the Lehigh Yalley Railroad Company, under date of November 8th 1871, it appeared that a registered bond for $1000, No. 4616, had been issued to the claimant. On January 23d 1872, she executed the following power of attorney to the testator :—</p> <p>“ Know all men by these presents. That I, the undersigned, for value received, do hereby irrevocably constitute and appoint Henry Etting to be my true and lawful attorney, for me and in my name and behalf, to sell, assign and transfer unto himself, or any other person or persons, one seven per cent, bond for one thousand dollars, registered in my name, and numbered 4616 of the Lehigh Valley Railroad Company.</p> <p>In witness whereof I have hereunto set my hand and seal,</p> <p>Miriam G. Etting. [seal.]</p> <p>On the same day testator transferred said bond on the books of the company to himself.</p> <p>From the deposition of claimant, which was offered in evidence, it also appeared that she never received from testator any security in which her legacy ivas invested, and never received the money from him; that she did not know that that money was ever invested by him for her, and she did not think it was. She had spoken to her brother about it, but he had never told her in what he invested the money; never paid her any interest upon it, and she never asked him for any. Claimant also testified she never owned a bond of the Lehigh Valley Railroad Company, and never transferred any such bond to her brother.</p> <p>There was no evidence offered by accountants of any payment by testator to the claimant of the value of the $1000 Lehigh Valley Railroad bond transferred to himself on February 20th 1872, and it was stated on their behalf that they had been unable to find among the securities and assets of the estate any investment by testator for his sister, the claimant, and remaining in his possession at the date of his decease.</p> <p>Claimant, in her deposition, admitted, on cross-examination, that the'testator, since 1869, had made considerable outlays in her behalf for board, and to the extent, as she supposed, of $1000 per annum. But on re-examination she also stated that his outlays for her board commenced three or four years prior to 1869, and that there was no understanding between herself and brother as to the application of her legacy to the payment of board.</p> <p>Counsel for the company objected to the allowance of the claim of Miss Etting. First. Because the presumption was, from the fact of her giving the testator the power of attorney to sell or assign the $1000 bond standing in her name, that he had paid her for the same, and she was bound to prove she had not received the value of the bond. And second. Because the claimant was largely indebted to the testator for expenditures made on her behalf for boarding, &c.</p> <p>The auditing judge found “thatgiving full weight to the objections made, still, under the evidence, the' claimant is entitled to recover. The testator undoubtedly made the investment for his sister in the Lehigh Valley Railroad bond, which fact she never, in all probability, fully understood, or has forgotten, and collected the interest thereon for her, and that he subsequently purchased the bond himself, cannot be denied. Having done this, in the event of the interest being demanded, and the value of the bond also, by his sister, it would be incumbent upon him to show that he had paid her the same. She would not be called upon to prove a negative. As to the expenditures by testator for the board of his sister, there was no evidence, except the statement made by her, before referred to. There were no charges in any books kept by him against her, and in view of the near relationship between them, and the affectionate provision made for her in his will, it may safely be presumed that all such expenditures were gratuitously made for her benefit.</p> <p>“For these reasons the claim of Miss Miriam Gr. Etting is allowed, and she is awarded the sum of $1000, with interest from February 15th 1870, being six years prior to testator’s'death, until May 1st 1877.”</p> <p>The court in banc dismissed the exceptions made to this award, and affirmed the same. The company then took this appeal, alleging that the court erred,</p> <p>1. In awarding any amount to Miriam Gr. Etting as a creditor.</p> <p>2. In awarding her interest from the 15th day of February 1870, on her claim, under the testimony that there had been an investment of the $1000 in a Lehigh Valley Railroad bond, which remained in her name until 20th February 1872, and in the absence of any proof that the testator had collected interest on said bond.</p> <p>3. In not allowing the expenditures by the testator, in behalf of the decedent, as a set-off against her claim.</p> <p>4. In not finding that the power of attorney given by claimant to testator, on the 20th of February 1872, was a transfer to the testator by the former of the ‘Lehigh Valley Railroad bond, and that no pecuniary liability by him to her was thereby created.</p>

<p>A purchaser at sheriff's sale bid off the property of a defendant in an execution to protect his own interests as an encumbrancer by mortgage. The judgment index showed an existing judgment before his mortgage, which was certified to him after searches made, and believing his mortgage discharged by the sale, he made his bid accordingly. This judgment, by order of court, was stricken from the judgment index, having been erroneously entered thereon. The purchaser then, the purchase-money having been paid and the sheriff's deed acknowledged, took a rule to set aside the sale, vacate the acknowledgment and cancel the deed, which the court made absolute. Held, that this action was within the discretion of the court.</p>

<p>1. The Court of Common Pleas has the power to set aside a sheriff’s sale, at any time before the deed is acknowledged, or even after that act, if done at the same term.</p> <p>2. Said court may intervene to protect a judgment creditor, where it has reason to believe that his rights have been compromised, either through mistake or fraud.</p> <p>3. Query, whether in a contest between mere bidders at a sheriff’s sale, said court may not properly intervene to protect their several rights.</p>

<p>1. A lapsed devise descends to the heirs at law of the testator, unless there is an intention expressed in the residuary clause of the will which indicates that the devise thus lapsed shall pass into the residue.</p> <p>2. Patterson v. Swallow, 8 Wright 490, distinguished.</p>

<p>S. held the note of B. for $30,000, and as security therefor certain mortgages, which he foreclosed and himself purchased for $17,000 the real estate on'which they were secured. In a suit by S. on the note he offered a credit of $17,000. B. filed an affidavit of defence, wherein he averred that the full value of the mortgages was $42,000; that the plaintiff had acted as the owner thereof and sued them out and purchased the property without notice to B.; that at the time of the sale property was much depreciated and that with careful management much more could have been realized. Held, that the affidavit was insufficient and that the plaintiff vras entitled to judgment either for the balance of his claim, or if his action had converted him into a trustee holding land instead of mortgages, then to the whole amount of his claim, and the record must be remitted to the court below to enter such judgment as might be right and just.</p>

<p>Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1878, No. 102.</p> <p>Assumpsit by Caroline Martin against Camille DTnvilliers and John J. Maitland, trading as C. DTnvilliers & Co., to recover the value of certain bonds purchased by said firm as brokers. DTnvilliers died after suit brought, and it was afterwards proceeded with against Maitland alone.</p> <p>The facts are fully stated in the opinion of this court. At the trial, Pratt, J., charged the jury as follows : “ The plaintiff, a sister of Mr. Martin, places money in the hands of defendants, as brokers. Mr. Martin, as agent for his sister, gave a written order to buy South Carolina bonds. He says April and October. Defendants say January and July. On written order April is erased and July substituted. Mr. Martin says that after the purchase he was informed by defendants that the purchase made on his order was of January and July bonds. He then objected, but was told that these were just as good as the others, and afterwards said nothing. There was no positive acceptance on his part further than acquiescence goes. The bonds were never delivered to Martin. You must judge whether Martin by his conduct allowed defendants to believe that he acquiesced.</p> <p>“We find these bonds in the hands of the defendants as the property of the plaintiff.</p> <p>“In 1875 the defendants were directed to sell the bonds. An order was sent by defendants to a New York broker to sell. The following day the bonds were shipped. This was the 14th of May. [On the same day — the 14th — the defendants were advised by their New York correspondent that the bonds were sold, and a check was sent over for the amount, and was received by defendants. This was a completed transaction.]</p> <p>“ The purchaser found, upon seeing the bonds, that three of them were not marketable, and refused to-receive them. Defendants thereupon purchased other bonds and delivered them to the purchaser, leaving three of the bonds ordered by the plaintiff to be sold, on hand.</p> <p>“ At the time of this sale the defendants were agents for the plaintiff, in relation to these bonds. An authority to sell does not imply an authority to buy. An agent who exceeds his authority adopts the act as his own, and is no longer agent.</p> <p>“ [Plaintiff ordered her bonds sold at thirty-three, and they were sold at that price. If you believe this, then, as matter of law, DTnvilliers was responsible for rescinding the contract.] They thereby adopted the theory of the purchaser, accepted the return of the bonds, and purchased others to supply their place, and fill their contract. By this act they relieved the purchaser from liability to be sued upon his contract.</p> <p>“ [If defendants rescinded the contract and took back the bonds sold, and bought others to fill the contract, .without authority from the plaintiff, they adopted the loss as their own.]</p> <p>“ [If the defendants agreed to take these bonds back without the consent and authority of their principals, and substituted others purchased by them in lieu thereof, they accept these bonds as their own. The three bonds are in the hands of defendants as their property], and the measure of damages would be the amount realized from the sale, less their lawful commissions.”</p> <p>The verdict was for the plaintiff for ¡p1784.54, and after the entry of judgment the defendant took this writ, alleging that tho court .erred in the forégoing portions of the charge contained in brackets.</p>

76. Appeal of Charles Yard from the decree of the court confirming the report of the auditor in the estate of Mary'P. Loxley, deceased.

<p>Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1878, No. 57.</p> <p>Appeal of Laura M. Kellberg from the decree of the court refusing her petition to vacate letters of administration granted to Frank B. Williams, in the estate of her deceased husband, John W. Kellberg.</p> <p>The petition and the answer of Williams are substantially set forth in the opinion of this court.</p> <p>In the.court below, Hanna, J., in dismissing the petition said (O’Brien, J., dissenting) :—</p> <p>“ This matter having been heard upon petition and answer, without a replication, the answer must be taken to be true in all its allegations. In effect, the petitioner demurs to the answer: Bright. Eq. 528; Russell’s Appeal, 10 Casey 258; Thomas v. Ellmaker, 1 Pars. 98.</p> <p>“ The grounds stated for the vacation of the letters of administration and removal of respondent are, that the petitioner, who is the widow of decedent, was unduly and improperly influenced by the respondent to renounce her right to administer, and that since obtaining letters of administration he has mismanaged the estate.</p> <p>“ As to the first cause of complaint, the answer contains an unqualified denial, ‘ that any inducements of future advantage to the estate were held, out to the petitioner to induce her to allow respondent to administer.’ And the mismanagement complained of appears to consist in the delay and unwillingness of the administrator to institute a suit against the former employers of decedent to recover moneys which petitioner is advised are due to the estate. The administrator admits he has delayed bringing suit, but avers he is ready and willing to commence the same ; and alleges as the reason for his past delay that three several counsel, with whom he consulted, advised him, as matter of law, against his right to recover in such suit.</p> <p>“ It also appears that the administrator was not in the possession of funds of the estate to enable him to commence and prosecute legal proceedings, as the decedent at the time of his death was not the owner of any real estate, and had but a very small amount of personal, all of which has been retained by the petitioner. In view of all the facts appearing from the petition and answer, and applying the well-settled rule of pleading referred to, we are unable to discover any just reason for vacating the letters of administration and removing the respondent. It may also be stated as an additional reason for declining to grant this application, that the year allowed by law for the settlement of the estate will soon expire, when, upon the adjudication of the account of the administrator, the question as to his liability for the delay complained of can be fully determined.</p> <p>“ The petition is therefore refused.”</p> <p>This refusal was the error alleged by the petitioner, who took this appeal.</p>

<p>S„ an attorney at law, for a consideration of §5000, agreed with F. that he would expedite the settlement of an estate in New Jersey, in which the wife of F. bad an interest, and secure said interest for her. At the termination of the proceedings, the chancellor in New Jersey made an order, granting a certain sum, out of the general fund in litigation, as solicitor’s costs. S. received §2500 out of this allowance, although it did not appear he acted for other parties in the cause: Held, that F. was entitled to a credit for the amount S. had thus received.</p>

<p>Error to the Court of Common Pleas No. 1, of Philadelphia county: Of January Term 1877, No. 21.</p> <p>This was an action on the case for damages, brought by Joanna Creed,'widow of Henry B. Creed, deceased, against the Pennsylvania Railroad Company, for the death of the said Henry B. Creed, caused by the alleged negligence of the said company. The accident, by which decedent met his death occurred on November 5th 1874, at Schenck’s Station] which is on the road of the said company, about nine miles from the city of Trenton, N. J.</p> <p>The declaration was in case for negligence, in not safely carrying deceased. Plea, “Not guilty.</p> <p>On the trial defendants filed additional pleas, as follows:—</p> <p>“That they did not contract or agree with H. B. Creed for a valuable consideration, or otherwise, that they would carry the said H. B. Creed from Jersey City, in the state of New Jersey, to the city of Philadelphia, in the state of Pennsylvania, as in the first count of the plaintiff’s declaration alleged, and of this the defendants put themselves upon the country, &c.</p> <p>“And for a further plea, the defendants say that the said H. B. Creed was wrongfully, and in violation of the rules of the company defendants, in a certain car, known as a caboose-car, not adapted to, or intended, or used for the transportation of passengers, but only used for the conveyance of the servants of the defendants, whilst employed in managing and conducting a certain train of their cars, exclusively used for the transportation of merchandise, which car, or caboose-car, was attached to 'a train of cars, exclusively used in the transportation of merchandise by them, the defendants, at the time of the alleged injury to the said H. B. Creed, upon the said railroad, &c.”</p> <p>At the ’trial it appeared that Creed was a passenger on a mixed freight and passenger train of the defendant, running from Jersey City to Philadelphia. At the time of the accident he was in the caboose, the hindmost car of the train, in front of which were the passenger-cars, into which there was ready and easy access. This caboose-car was one set apart and specially designed for the use and occupancy of the employees engaged in running the train, and by the rules of the company no other persons were permitted to enter it.</p> <p>The cause of the accident was the misplacing, by Brannig, the conductor, of the switch to back his train upon a side track, in order to let the express train pass. The switch had been changed from a ball, or “ Wharton” switch, which turns over from the ground, to a stand switch, worked by a lever. The conductor had no notice of the change of switches. After he had turned the new switch wrong, and had gone the length of a rail, he discovered his mistake, ran back to straighten it, struck his foot against a tie and stumbled, got the switch back about half way, when the rear car of the train, which was backing, and in which decedent was sifting, struck the open end of the rail, and, with the three passenger-cars next to it, ran off the track. The caboose-car upset and Creed was instantly killed.</p> <p>Brannig testified that he saw Creed on the afternoon of the 5th of November in Jersey City. He afterwards observed him at Newark on the train sitting in the lookout of the caboose, and subsequently saw him once or twice, the last time, he thought, at Trenton.</p> <p>Brannig was the freight conductor, and at the time of the accident had sole charge of the train, the passenger conductor having left the train at Newark. Brannig, however, it appeared, had no authority to take on passengers or to receive fares, and there was nothing to show that Creed had paid his fare to the passenger conductor. Creed himself had formerly been a freight conductor on the road. He was thirty-nine years of age when killed.</p> <p>The court, Peirce, J., in their general charge, submitted the question of negligence to the jury, but reserved the points whether the decedent was guilty of contributory negligence, and whether he was a passenger, as follows:—</p> <p>“ Secondly, is there any evidence in the case which leads you to believe that there was negligence on the part of the deceased ? You have heard the testimony ; there is no direct proof of negligence on his part, unless it may be considered in connection with the position which he occupied in the cars as riding in the caboose. Negligence is a mixed question of law and fact, it is said ; .and so far as the law of negligence connected with this case is concerned, as relates to his travelling in that caboose, I reserve that portion of the case for the consideration of the court in • banc, leaving the broad question, though, of negligence, both on the part of the company and on the part of the deceased, to your consideration.</p> <p>“ Then the further question has been' made, as to whether the decedent was travelling as a passenger on this occasion. We have no evidence of the payment of money by him ; but I think there is a reasonable and fair presumption that if a person not connected with the company travels by a passenger train, presumably he is travelling as a passenger, and for a consideration. I reserve, however, in the instruction which I give to you as to this presumption of law, the final determination of this question to the court in bane.”</p> <p>The verdict was for the plaintiff for $510,000.</p> <p>' A rule for a new trial, granted at the instance of defendants, was subsequently discharged, and judgment having been moved for by the plaintiff, on the points reserved, the court, without delivering an opinion, entered it for defendants, non obstante veredicto.</p> <p>This entry of judgment was the error assigned by plaintiff, who took this writ.</p>

<p>1. A parol promise to pay the debt of another, out of funds transferred to the promissor, is not within the Statute of Frauds.</p> <p>2. In such case the creditor, though not present, is the party to be benefited. and becomes the owner of the 'fund thus impressed with a trust for him and can sue for it.</p>

<p>1. Where an administrator, in pursuance of a decree of the Orphans’ Court, has paid over money to a distributee, without notice of a bill of review, he will be protected against loss should the court subsequently open and change the decree.</p> <p>2. Where the record of a case, brought up for review, is so irregular that it is impossible for the Supreme Court to decide according to the justice and equity thereof, the cqurt may either refer‘the case to an auditor, or the decree may be reversed and the record remitted to the court below for a further hearing, as may be deemed most expedient.</p>

<p>Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1876, No. 223.</p> <p>Case, by John Collins, by his next friend, Daniel O’Keefe, against Charles C. Harrison, Theodore A. Havemeyer and others, trading as Harrison, Havemeyer & Co?</p> <p>The narr. alleged that the defendants were the owners or occupiers of certain premises on the east side of Water street, below Shippen street, Philadelphia, fronting on a public footway or highway, in which there was a coal-hole opening into the cellar on defendants’ premises ; that the defendants, not regarding their duty in the premises, on May 7th 1875, wrongfully and unjustly permitted the coal-hole to be open and uncovered, by means whereof the plaintiff, whilst lawfully passing over the footway, without any negligence on his part, unavoidably fell into the hole, suffered damage to his body, and lost the sight of one eye, &c. The damages were laid at $5000.</p> <p>The plea was, “Not guilty.”</p> <p>At the trial, before Elcock, J., it appeared that the defendants were the owners of a lot, and large sugar refinery thereon erected, at Swanson and Almond streets, in the city of Philadelphia. In May 1875, they had purchased two large iron coolers, weighing from seven to ten tons each, to be used in their business. They were brought by railroad to the north end of the railroad track on Swanson street, whence it was necessary to move them along the pavement and into the refinery. The distance they were to be moved was about eighty-eight feet. The defendants employed one John Connor, a master rigger, to move the coolers from the railroad tracks and place them in position in the refinery. Eor this work he was to be paid four dollars per day for himself and for each of the assistant riggers and for the use of his rigging. When he needed any additional men, he was to have the assistance of some of the men about the refinery. From the time he commenced until he finished the work, Connor controlled all the men, gave all the orders, and had the sole direction of whatever was done.</p> <p>Under the sidewalk, in front of the refinery, was a vault for the storage of coke or coal. This -vault had an opening in the sidewalk on Swanson street, constructed in accordance with the requirements of an ordinance of the city, which provides that said opening shall be covered by an iron plate or grating, made of iron bars of at least an inch in thickness. This opening or hole is twenty inches in diameter, and is securely fastened by a heavy cast-iron cover, weighing about sixty pounds. At the bottom it was fastened with lock and key.</p> <p>Connor commenced the work by moving the smaller cooler along Swanson street, resting it partly on the curbstone and partly on the pavement. In order to do this, he put wooden rollers under the cooler, and fastened ropes to it, and used the ordinary tackle of riggers. For the purpose of obtaining a purchase, he directed his men to open the coal-hole, and to put a strong piece of timber in it, and across and below the pavement, and fasten their ropes to it. This they did, and by means of the tackle they drew the cooler as far as. they could, with this purchase, to within five or six feet of the hole. The cooler was about ten feet long by five feet wide and five feet deep. It was thus drawn to within a few feet of the coal-hole a little before 12 o’clock noon. The rigger then ordered his men to take the tackle from the coal-hole, and pull it around the corner of Bainbridge and Swanson streets, and thus get a new purchase. In doing this, the hole remained open from three to five minutes. In this interval the plaintiff, a boy about thirteen years old,-walked into it and was injured.</p> <p>The main defence was, that the employment of Connor was an independent one, and that consequently the defendants were not responsible for his acts.</p> <p>The. defendants’ second point was as follows, to which is appended the answer of the court:—</p> <p>That if the jury find that the injury to the plaintiff was caused by the negligence of Connor, and his employment was an independent one, the defendants are not liable, and the verdict must be for the defendants.</p> <p>Ans. “I cannot instruct you in that language. If Connor was simply the servant .or agent of the defendants,.they are answerable for his negligence.* But even if his employment was an independent one, if he used this hole or opening in defendants’ sidewalk for his own convenience, by the permission of the defendants, either express or implied, then the defendants would be liable, the care and control of the hole not being incident to his employment. If without their permission, then as a trespasser the defendants would be liable for the acts resulting. If the hole was left open for any time after its use was ended by Connor, then the defendants are liable.”</p> <p>Their third point and the answer of the court were as follows:—</p> <p>That the verdict must be for the defendants, the uncontradicted evidence in the case showing that Connor’s employment was an independent one. The negligence, if any, from which the accident occurred, was during this independent employment.</p> <p>Ans. “I cannot so charge you, and refer you to my general charge in that regard.”</p> <p>In their general charge, the court, inter alia, said:—</p> <p>“The defendants say, ‘we employed in the moving of these machines a competent rigger, who, with his workmen, was paid $4 per day, who was assisted by our workmen from the factory, but all at the same time under the guidance of Connor, the rigger.’</p> <p>“ I do not think it becomes important in this case to determine whether that was an independent employment within the legal definition or not, whereby the responsibility was shifted from the defendants to Connor, because Connor’s undertaking was simply to move and hoist this machinery, and he would be in any event only liable within the scope of his employment.</p> <p>“If Connor, in his employment, for the mere purpose of convenience, or an easy way of obtaining a purchase for his rigging, used the hole or opening referred to, by express or implied permission of the defendants, then for the time being he became their agent, because the care and control of the hole was not necessarily incident to his employment.</p> <p>“If he used it without their permission, then he became a wrongdoer, and defendants, not protecting such a species of property as this hole from such acts, would be guilty of negligence, and liable for any injury occurring during the time. But whether the defendants impliedly gave permission, or whether Connor was a trespasser during the time he was using the hole or the opening, the instant that he ceased to use it its control reverted to the defendants, and from that instant they were bound to protect it, there being no undertaking on the part of Connor to see to its subsequent care or management. He who, being the owner of property, seeks to shift the responsibility for its care or management, must show that he has parted with the power or authority over it, or the superior control upon which it falls. . If, then, you find that this occurred after the ropes were taken out of the hole, and before the cover was placed upon it, the defendants would be responsible if the plaintiff was otherwise entitled to recover.”</p> <p>The verdict was for the plaintiff for $3000, and after a rule for a new trial had been discharged (Thayer, P. J., dissenting), judg-. ment was entered thereon. The defendants then took this writ, alleging that the court erred in the answer to their second point, in the portions of the charge quoted, and, lastly, in the answer to their third point.</p>

191. Appeal of W. Wynne Wister, Jr., executor of L. W. Humphreys, deceased, from a decree of the court allowing commissions to A. A. Humphreys, trustee. By the will of Charles Humphreys, deceased, dated July 1870, he left all his property to his nephew, A. A. Humphreys, to pay the net income thereof, for life, to his widow, L. W. Humphreys, and at her death the testator gave his whole estate to the trustee and his heirs.

<p>1. Art. 8, sect. 3, of the Constitution, requiring all elections for city, ward, borough and township officers for regular terms of service, to be held on the third Tuesday of February, does not alter the Act of April 27th 18(34, which declares that in case of a vacancy occurring in either branch of councils, the qualified voters of the ward at the next general election shall elect a person for the unexpired term.</p> <p>2. The Act of March 10th 1875 provides that all members of councils to be elected at the February election thareafter, whose term of office would, under existing laws, expire prior to the first Monday of April next, shall continue in office from the date at which such term would otherwise expire, until the first Monday of April next ensuing. D., a member of Select Council of the city of Philadelphia, elected in 1873 to serve until the first Monday of January 1877, resigned in July 1875, and B. was elected in February 1876, to fill the vacancy. Held, that the term of B. ended on the first Monday of January 1877, and it was regularte elect in February 1876 a member for the new term, commencing on the first Monday of January 1877, and the Act of 1875 extended the new term for three months and not the unexpired term.</p>

<p>Appeal from the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1875, No. 5.</p> <p>Appeal of P. M. Singmaster, assignee of the estate of II. W. Black, from the decree of the court, confirming the report of the auditor to whom was referred the account of said assignee.</p> <p>Black failed in 1873, and assigned his estate to Singmaster for the benefit of creditors. The assignee’s account was referred to an auditor in 1874. The paper-book of the appellant contained in substance the following statement:—</p> <p>William Buchanan claimed before the auditor as against the creditors under this assigned estate of Black, upon a promissory note for $300, with arrears of interest, drawn by John Bailey and Elizabeth Robinson, dated August 26th 1863, at six months, payable to said William Buchanan. One of the co-makers .of the note, Elizabeth Robinson, had died, and Black was her exeoutor. On the back of the note was an endorsement of a credit of interest up to April 11th 1870, more than a year after the outlawry of the note, apparently in the handwriting of Buchanan, without date, and not specifying whether the alleged payment of interest was by Bailey or by Robinson. It did not appear whether there was ■ or was not any adjudication of the estate of Elizabeth Robinson, but the auditor of this private estate of Black, thus assigned for the benefit of creditors, reported on January 11th 1875, inter alia, as follows:—</p> <p>“ William Buchanan claimed upon the promissory note of John Bailey and Elizabeth Robinson, dated Cambridge, August 26th 1863, for $300, payable six months after date, to the order of William Buchanan, and endorsed by him.</p> <p>“Objection was made to this claim, and it was argued that the Statute of Limitations barred it, but your auditor is of the opinion that since interest was paid on the note to April 11th 1870, it was kept alive by the payment of said interest, and it should be allowed.</p> <p>“H. W. Black was the executor of the estate of Elizabeth Robinson, deceased, and as such he became responsible for the amount of the note to William Buchanan.”</p> <p>The further statement was made that Singmaster was also a creditor of Black to a large amount, and that his assets had realized about twenty-five per cent, of his liabilities. None of the evidence produced before the auditor was furnished in the paper-book, and the above extract was all that was given of his report.</p> <p>The court dismissed the exceptions filed by Singmaster to this report, and confirmed the same when he took this appeal.</p>

4, of Philadelphia county: Of January Term 1877, No. 138. Debt by Sarah C. Kerns against the New Jersey Mutual Life Ins. Co. on a policy of life insurance for $5000 on the life of her deceased husband, Edward L. D. Kerns. The plaintiff filed a copy of the policy on which suit was brought, with an averment of the death of Kerns, and that due proof thereof had been made. The policy was dated December 4th 1874, and Kerns died October 14th 1875.

<p>1. The Act of April 12th 1872, regulating the execution and transfer of notes given for patent rights,-is not in conflict with art. 1, sect. 8, of the Constitution of the United States.</p> <p>2. The Act of 1872 requires that the words “given for a patent right” shall be legibly written across the face of notes so given. Held, that the negotiability of a note, given for such a consideration, in which these required words are not inserted, is in no way affected by the act, and an innocent holder who takes it before maturity for value, without knowledge or notice of the consideration, takes it clear of all the equities between the original parties.</p>

District Court of Philadelphia county: Of July Term 1876, No. 97. Attachment execution sur judgment issued by Byron Woodward against John Carson, defendant, and Joseph Singerly, garnishee. On the 24th of March 1873, David Armstrong, to the use of John Carson, obtained a judgment against Joseph Singerly, in the late District Court of the city and county of Philadelphia, for $8942.94, said judgment having been entered on a verdict for that amount.

3, of Philadelphia county. In equity, No. 2. The bill in equity was filed in this ease June 12th 1874, by Peter A. Quin against the City of Philadelphia, Peter A. B. Widener, city treasurer, Samuel L. Smedley, chief engineer and surveyor, and A. B. Burton.

1, of Philadelphia county : Of July Term 1877, No. 55J. Daniel McCauley brought an action for deceit against Frank Dickson, in which a verdict was rendered for the defendant. The prothonotary taxed the costs at $125.40, which included the fees of five witnesses, who were in attendance at the trial, but who either did not testify or knew nothing about the case. From this taxation of the costs McCauley appealed, and the court below dismissed the appeal.

3, of Philadelphia county: Of July Term 1877, No. 117. Scire facias sur mechanic’s lien, issued by John Streeper against Joseph D. McKee, for work and labor done by plaintiff upon the building of defendant. The claim was for $2972.87.

1, of Philadelphia county: Of July Term 1877, No. 113. Scire facias sur mechanic’s lien, issued September 5th 1876, by Wainwright & Bryant against William K. Barclay, owner, and Ransom Rogers, contractor, for lumber furnished in the erection of a theatre on the southwest corner of Tenth and Callowhill streets,.in the city of Philadelphia.

<p>Appeal from the Orphans’ Court of Philadelphia county: Of July Term 1875, No. 13.</p> <p>Appeal of John Long and others from the decree of the court sustaining the exceptions to the report of the auditor in the matter of the estate of John Murphy, deceased.</p> <p>The following were the material facts disclosed before the auditor : John Murphy, the decedent, was married to Martha Long on February 25th 1830. At that time she possessed separate estate amounting to the sum of eleven hundred and fifty dollars, which she subsequently gave to her husband, who appropriated the entire sum as he deemed proper. Decedent and his wife resided together for a period exceeding forty years, and by their joint industry and economy accumulated considerable real and personal estate. He died July 21st 1873, having survived his wife but three or four weeks. On May 21st 1867, the decedent executed his last will and testament, by which he bequeathed to his wife a legacy of one thousand dollars, payable at the expiration of one year after his decease. He subsequently, at the request and dictation of his wife, wrote the following on a separate paper :</p> <p>“Philada., June 22, 1871.</p> <p>I, Mrs. Martha Murphy i am not in good health i wish to make a devide of what I have past me to my friends.</p> <p>My Brother, John Long, $400.</p> <p>Jane, my sister, 100.</p> <p>Margaret, my sister, 350.</p> <p>Margaret Jane Brady, 100.</p> <p>Martha Lodge, 100.</p> <p>Samuel Collins, 100,</p> <p>I, John Murphy I will Ancer this Bill in one year after the decease.”</p> <p>This paper was written at a time when Mrs. Murphy was dangerously ill and was intended by her as her last will and testament. Decedent subsequently, on September 29th 1871, executed a codicil to his will wherein he bequeathed to his wife the sum of $1150, payable one year after his decease, an annuity of twelve dollars per month and certain real estate for life. During the period between the death of his wife and his own, Murphy, in conversation with different persons, frequently referred to the paper written by him at her request. To one he stated, if his life was spared he would settle that account, and whatever was “ for” his wife he would settle. To another, that if he lived three or four weeks he would pay eleven hundred and fifty.dollars to his wife’s sister, Mrs. Collins, and that this money was for his wife’s friends; that she was a very worthy woman ; and had that amount of money herself. He specified the amount and said it was the same as that contained in his will, and she wanted that amount distributed. Decedent also inquired of the sister of his deceased wife'in regard to this paper, and upon being shown it, said, “Yes, that is my handwriting; I did this according to her wishes, and if I live three or four weeks I will pay this off.” He also said, “ My will says a year, but I will not keep it that long;” that she (the witness) should keep the paper, and show it to his executors, and they would pay the money. Testator further stated to this witness he had invested his wife’s' money in bonds. These bonds were in the possession of the executors of decedent after his death, but were not accounted for nor inventoried, and formed the subject of a surcharge against them by the auditor.</p> <p>The auditor, inter alia, reported: “ During his lifetime, both before and after his wife’s death; decedent spoke repeatedly, and to different persons, of the paper, and of the amount of money mentioned therein, as his wife’s money, and promised to pay it if his life was spared. He recognised the distribution of the money made by his wife, and expressed himself in a manner that leaves no room to doubt that he considered himself bound by it, and that he intended to carry.out the wishes of his wife, as expressed in it. * * *</p> <p>“It is clear that decedent, in making these acknowledgments and declarations in reference to his wife’s money, spoke of her title to it as in no way depending upon the terms and provisions of his will, but as hers entirely, independent of the disposition he had made of it in ‘ his will and codicil. In the light of all the testimony, the bequest in the will for his wife seems to have been a further acknowledgment by him that that amount of money was hers.</p> <p>“In the opinion of your auditor, the testimony produced before him establishes, conclusively, the fact that decedent treated the amount of money specified in the paper, as the property of his wife, and not his own, and that he acknowledged himself liable to her for it, as her trustee ; "that, standing in that relation to each other in reference to this property, Mrs. Murphy was perfectly competent to direct her trustee to dispose of it in the manner set forth in the paper; that by virtue of that paper, the uses of the trust were changed, and that thenceforth he held the money as trustee for the parties named in the paper, and no longer for his wife. To this modification of the trust decedent assented in writing, and agreed to execute the trust in one year after his wife’s death-. His duties in that particular devolved upon his executors after his death.”</p> <p>He therefore reported that the claims-of the persons named in the paper should be allowed, and that they were entitled to be pa-id out of the estate of the decedent. The executors of the decedent filed exceptions, which the court, Hanna, J., delivering the opinion, sustained, inter alia, saying:—</p> <p>“From the testimony taken before the auditor, and sent'up to us upon the application of the exceptants, it is clearly shown that if the testator received any money from his wife at the time of the marriage, he not only reduced it into possession, but used. and appropriated it for his own purposes, perhaps forty years before' his death. It was never considered by either of them in the nature of a loan, or to be held by him in trust for her. This being the case, and the receipt of the money by the husband having been prior to the statute of April 11th 1848, without any cotemporaneous declaration or admission that he received and held the same in trust for her, is sufficient to work a change of ownership: Gochenaur’s Estate, 11 Harris 460. No ante-nuptial agreement by parol was shown, whereby the parties agreed that the money should remain the property of the wife. This settlement, followed by the disposition and use of the money during marriage, consistent therewith, would have been binding .upon the death of decedent: Gackenbach v. Brouse, 4 W. & S. 546. Nor was any post-nuptial contract for a valuable consideration proven or attempted: Duffy v. Insurance Co., 8 W. & S. 432. A positive and clear declaration at the time of receiving the wife’s chose in action (previous to 1848), may be sufficient to establish the husband as a trustee for the wife; but loose declarations of an intention to repay the money are not enough: Johnston v. Johnston’s Admr., 7 Casey 450. Before the Act of 1848, the husband, by marriage, acquired a right to his wife’s choses in action, if he reduced them to possession during coverture: Tritt’s Admr. v. Colwell’s Admr., 7 Casey 228.</p> <p>“In the present case the testator mingled the money received from his wife with his own, and used it either in his business or otherwise, as he saw proper; he never promised to repay his wife, nor did she demand it. We are unable to discover any setting apart by the testator of the money received from his wife; his assets did not disclose any investment in her name or his, as her trustee, or even any securities corresponding in amount to the sum received from her.</p> <p>“ For the reasons given, we are of the opinion that the money received by testator from his wife became, not only from the intention of the parties, but by operation of law, absolutely his property.</p> <p>“The auditor was inclined to this opinion, but he was misled by the testimony and apparent effect of the paper written by the testator, before referred to, coupled with his declarations and promises after the decease of his wife. In order to award payment of the claims of the persons named in the paper dated June 22d 1871, the auditor has construed it as a declaration by the testator that he held the sum of $1150 in trust for his wife; that she, the cestui que trust, had then directed him, her trustee, to dispose of the money mentioned therein in the manner indicated; that he assented thereto, and thenceforth held the money as trustee for the parties named in the paper, and no longer for his wife, and that the testator agreed to execute the trust in one year after his wife’s death. In this view we think the auditor was in error. That said paper was never prepared as a declaration of trust is apparent, and from the testimony in behalf of the claimants it appeared that the paper was written as, and for, the last will of Mrs. Murphy, who after-wards delivered it into the custody of a sister for safe-keeping. At the date of this paper the testator had already executed his will, whereby he bequeathed to his wife only a legacy of $1000, payable one year after his decease. This was not satisfactory to her, and no doubt the testator then agreed to increase her legacy to $1150, the amount she had given him on her marriage, and in case of her death before him, to pay and distribute the same among her relatives and friends named in the paper he had written at her dictation.</p> <p>“ Testator partly performed his promise by executing a codicil to his will on the 29th day of September following, whereby he increased the legacy to his wife to $1150, but he failed after her decease to provide for the distribution of said legacy among her relatives and friends.</p> <p>“ The words ‘I, John Murphy, I will ancer this bill in one year after the decease,’ do not constitute any obligation for the nonperformance of which the testator or his estate would be liable. It was a promise without consideration, and the persons named in the paper are but volunteers. If this paper constituted a declaration of trust, and had the wife survived her husband, she would probably have been-entitled to both her legacy and the like amount as cestui que trust. This certainly was not intended by the testator. The auditor to a great extent relied upon the promises of testator after the death of his wife, but these were merely declaratory of an intention never performed, and an agreement and undertaking without consideration. It is almost unnecessary to cite authorities to sustain the views entertained by us in disposing of the questions submitted. In Hill on Trustees, pages 91 and 126, the fundamental principle is laid down that in order to fasten a trust on property of any description, by means of parol declarations, the expressions used must amount to a clear and explicit declaration of trust. Loose and indefinite expressions, and such as indicate only an incomplete and executory intention, are insufficient for this purpose.</p> <p>“ The declaration of trust must be complete and unequivocal : Hill on Trustees 134.</p> <p>“Again, it has long been an established principle with courts of equity that they will not interfere to perfect the' title of a party claiming merely as a volunteer. To determine who are or who are not regarded as volunteers, it is settled that a valuable consideration is requisite to put the court in motion: See note to page 129, Hill on Trustees. However, it has been held that a blood consideration was sufficient to support an executory trust in equity, at least where the instrument was under seal: See above. But in this state, in Campbell’s Estate, 7 Barr 100, it was held that natural love and affection was not a sufficient consideration for an equitable assignment. And the evidence to establish a parol trust must be clear and positive: Emerick v. Emerick, 3 Phila. Rep. 94; Capehart v. Capehart, 2 Id. 134. See also Raybold v. Raybold, 8 Harris 308.</p> <p>“The facts shown in Gray’s Estate, 1 Barr 328, disclose admissions and promises similar to those of the testator in the present case. There the decedent, Gray, four or five years before his death, admitted, on different occasions, that he had some five hundred dollars of his wife’s money, and that it was his intention to pay it back again; that it should not be said that he had any of his wife’s money. On another occasion, when told by an acquaintance that he thought that the money obtained from Ireland should go to Mrs. Gray and her children, the decedent said ‘they should have it,’ and he did not intend to claim it as his own. And again, when another acquaintance ‘ put it at him ’ that he had the money of Mrs. Gray, he admitted it, and said she and her children should have it. Mrs. Gray claimed this five hundred dollars from her husband’s estate, and the auditor awarded her the amount, with interest. This was excepted to by the heirs of decedent, but the Orphans’ Court confirmed the report of the auditor. This decision, upon appeal, was reversed by the Supreme Court.</p> <p>“ For the reasons stated, w.e think the auditor was in error in awarding payment of the claims presented before him, and therefore sustain the exceptions. The report is recommitted to the auditor for correction, in accordance with this opinion.”</p> <p>All the claimants appealed, and assigned this action of the court for error. This case was first argued on the 30th of January 1877, and was affirmed, his honor, Judge Williams, being absent, by a divided court. It was subsequently ordered to be re-argued.</p>

February 5th 1878. Before Agnew, O. J., Sharswood, Mercur, Gordon,'Paxson, Woodward and Tkunkey, JJ. Appeal from the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1875, No. 4. In equity. This cause originated in the old Court of Common Pleas, and in the distribution of the business in the reconstruction of the courts under the new constitution was allotted to the causes to be tried by Court of Common Pleas, No. 2.

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1875, No. 162.</p> <p>Scire facias sur municipal claim, filed by the City of Philadelphia to the use of George W. Mooney, to the use of William Armstrong, against a certain property in Stiles street, in said city, for work done on a sewer in front thereof, and against the “ heirs of Richard Wistar, deceased, owners or reputed owners, or whoever may be owner.” The facts stated in the opinion of this court, and the following specifications of error, which were assigned by Wistar to a judgment entered by the court in behalf of the city for want of an affidavit of defence, sufficiently illustrate the case. The assignments of error were :—</p> <p>1. The court erred in giving judgment for want of an affidavit of defence in a writ of scire facias, issued upon a claim filed against “the heirs of Richard Wistar, deceased.” 2. The sheriff’s return of “made known,” &c., was insufficient in this: that it does not appear that the copy of said writ was posted by him “on a conspicuous part of the premises therein described.” 3. It does not appear “that a brief notice” of said Avrit Avas published by him according to laAV. 4. It does not appear that “ the city solicitor caused diligent search to be made by an assistant or clerk for the OAvners or reputed owner” of the property levied before issuing a writ of scire facias thereon. 5. It does not appear that notice was served to the owner or reputed owner “ to make payment to the city solicitor within ten days” before suit was brought. And, 6. It appears, notwithstanding the sheriff’s return of nihil habet, that upon the day the writ of scire facias issued, the owner, or reputed owner of the lot, had a residence in the city of Philadelphia, known to the claimant.</p>

220. Appeal of Rosalie Woltemate, from the decree of the court confirming the report of the auditor upon the account of the administratrix of Xavier Ditsche, deceased. Xavier Ditsche died intestate, in 1871, leaving a widow, the accountant, but no issue, nor father, nor mother. A brother, Conrad, and sister, Rosalie, survived him, the latter being intermarried, with Henry C. Woltemate.

<p>In a suit upon a promissory note, brought by the third endorser against the second, the latter in an affidavit of defence averred that he was informed, believed and expected to be able to prove that the suit was brought for the use and benefit of the first endorser (also payee), who was the real owner and holder of the note, and not for the benefit of plaintiffs who were merely nominal holders. Held (reversing the court below), that this averment was sufficient to carry the case to the jury, as the payee and first endorser was responsible to every subsequent endorser, and had no right of action against them if he was really the owner of the note.</p>

116. Appeal of Robert Steel from the decree of the court requiring him to make specific performance of his contract as a purchaser at Orphans’ Court sale under certain proceedings in partition. Abraham Kulp died intestate in July 1870, leaving a widow, Sarah R. Kulp, and one-child, Sarah A., married to Nathaniel A. Large. At his death he was seised of a messuage and tract of land in Germantown, containing about twelve acres.

1, of Philadelphia county: Of July Term 1875, No. 129. Assumpsit by Charles Borm against Edward L. Lawrance upon two pi-omissory notes. Plaintiff filed copies of the notes, when defendant in an affidavit averred that since the re-organization of the courts under the constitution of 1873, there is no authority in the court to enter a judgment for want of a sufficient affidavit of defence.

<p>Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1875, No. 84-J.</p> <p>Attachment execution sur judgment, obtained by the Kensington National Bank against Charles T. Yerkes, defendant, which attachment was served upon the Wyoming Insurance Company, garhishee. Plea, nulla bona.</p> <p>The insurance company had insured for Yerkes certain real estate in Philadelphia, which was subsequently destroyed by fire. The bank claimed this insurance money. The insurance company defended on the ground that the policy was void by reason of the seventeenth condition of their policy, which was printed on the back of the policy and formed part, as they claimed, of the “ conditions annexed,” referred to in the body of the policy, wherein it was stipulated that the loss should be paid sixty days after notice, proof and adjustment thereof, “in conformity to the conditions an-, nexed to this policy.”</p> <p>The seventeenth condition reads as follows :—</p> <p>“ The insurance by this policy shall cease at and from the time the property hereby insured shall be levied on, or taken into possession or custody under any proceeding in law or equity; and should there, during the life of this policy, an encumbrance fall or be executed upon the property insured, sufficient to reduce the real interest of the insured in the same to a sum only equal to or below the amount insured, and he neglect or fail to obtain the consent of the company thereto, then and in that case the policy shall, be void.”</p> <p>The only evidence on this point was that of Yerkes, the defendant, who testified “ that the insured property was burned in August 1872; there was a total loss. * * The value of the property was $60,000. * * No levy was ever made upon the property. * * I owed the debt to the plaintiff of $148,614.03, for which it held the judgment against me.”</p> <p>It did not appear that Yerkes ever gave notice to the company of the existence of this judgment, and no levy was ever made upon the property under it.</p> <p>The insurance company offered no evidence, and the court instructed the jury “ that under the seventeenth section of the conditions of said policy they must find for the garnishee.”</p> <p>This instruction was the error assigned by the bank, which took this writ.</p>

<p>Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1876, No. 102.</p> <p>■ Appeal of John T. Montgomery and Alida G., his wife, from the decree of the court in the matter of awarding commissions to the executors under the will of Edward Wharton, deceased. Edward Wharton died in May 1873, having made a will in which he appointed the Pennsylvania Company for Insurance on Lives, &c., his executors. The testator, after creating certain trusts in favor of Mrs. Kate Lawrence, and of his son, an infant, to the extent of $20,000, bequeathed the residue of his estate to his sister, Mrs. • Alida G. Montgomery, one of the appellants. .The estate, consisting mainly of stocks, was appraised at $34,460.75, which was subsequently increased by interest, dividends, &c., to $42,385,93, at the time of filing the account.</p> <p>The executors filed their account on the 16th June 1874, in which they took credit for various payments, amounting to $2552.95, and charged themselves with unconverted assets in their hands, amounting to $37,304; they also took credit for the sum of $2095.26, as commissions due them as executors, being five per cent, on the entire estate which had come into their hands at that date. They subsequently filed a supplemental account, in which they deducted as further commissions five per cent, on all income collected. Objection to these commissions was raised before the auditor, as appears in his report, who sustained the objections, and awarded the accountants the sum of $500, in full compensation for their services as executors, and surcharged them with interest at the rate of four per cent, on the amount retained by them as commissions. To this reduction of their commissions the accountants excepted, and their exceptions were sustained by the court below, and a decree entered recommitting the report to the auditor, with instructions to allow the commissions as claimed; to which decree this appeal is taken.</p> <p>A question arose before the auditor as to the nature of the bequest of $20,000, whether it was to be paid directly to Mrs. Kate Lawrence, or whether it was to be held by the executors as trustees. The auditor decided in favor of the direct payment to Mrs. Lawrence; to which finding both the appellants and appellees excepted, and their exceptions were sustained in the court below, and the appellees continue to hold the said fund in trust.</p> <p>The auditor, inter alia, reported: “ The whole difficulty arises from the mistaken view that commissions are to be'paid as commissions, not as compensation for labor, care and responsibility. Quoting from Harland’s Accounts, 5 Kawle 330, the language substantially used by this court, he proceeded:—</p> <p>“It is in view of this decision, the facts above referred to and the peculiar fitness of the case in hand for departing from the custom of paying the executors in the form of commissions, that your auditor has determined upon the award of a sum in gross to them for their compensation.</p> <p>“In order that your honorable court may the more readily and better understand the whole ground of your auditor’s determination, it will be necessary to refer to some facts appearing in the account and others coming to his notice through the counsel of the parties in interest. An examination of the account will show that the estate, as it came to the executor’s hands, consisted wholly of stocks and a small amount of furniture. The subsequent receipts were only of stock and cash dividends and interest. The debts paid were seven in all, besides the one contested before your auditor; and these debts, he is satisfied from what occurred before him, were paid with the approval and after the examination of the residuary legatee, who also took the furniture at the appraised value. When the original account was filed, none of the stocks had been converted into cash, but the supplemental account shows the sale of some, and under the decision above made with reference to the $20,000 legacy, in will be necessary to convert enough of them to provide that fund. It appears then that all but about $16,000 worth of the stocks have been or will have to be converted into cash by the executors.</p> <p>“What, under the circumstances, is a proper compensation to the accountants for ‘ their responsibility incurred * * * and the sum of the labor expended ?’ It may be proper here to say that if they seem to have incurred a risk in not changing stock into a legal investment, they did an act for which they cannot be compensated. It was decided in Stearley’s Appeal, 2 Wright 525, that a trustee cannot claim compensation for services self-imposed, and resulting from his own wrong; and it is certainly quite as true that he cannot be compensated for a risk that he should not have taken. On the other hand, if the accountants should have changed the stock into legal investments, and did not, they cannot recover for'services which they should have performed, but did not render. It was said by Strong, J., in McOausland’s Appeal, 2 Wright 470, that ‘ commissions are given as a compensation for labor and responsibility, and where neither the one has been performed nor the other incurred, there is nothing to be compensated.’ And, indeed, the principle laid down in this case would seem to deny all commissions to the accountants (if we had adopted that mode of measuring their compensation) on such of the stocks as have not been and will not have to be converted into cash.</p> <p>“ Under all the circumstances of the case, the almost total absence of authorized responsibility and the very slender services performed, your auditor is of the opinion that the accountants would be liberally compensated by the sum of $500, and this he accordingly awards them. The credits claimed, therefore, of $2995.26 and $11.48, are refused, and it is also ordered that the accountants allow interest on these sums at the rate of four per cent, from the time they were credited with them respectively. With these exceptions, the credits claimed in the account and supplemental account are allowed.”</p> <p>In sustaining the exceptions to this report filed by the executors, the court, Hanna, J., in an opinion, said:—</p> <p>“ The auditor has examined with great care the questions presented to him, and conscientiously performed the duties assigned to him, but we are obliged to disagree with his views upon the subject now brought to our notice.</p> <p>“ In Harland’s Accounts, 5 Rawle 330, Gibson, C. J., says, that the compensation of accountants, though usually awarded in the form of commissions, is not determinable by any established practice or rule, being graduated to the responsibility incurred, the amount of the estate, and the sum of the labor expended. Recognising the principle thus announced, executors and other trustees, for the faithful performance of the ordinary duties of the trust, have generally been compensated by a commission of 5 per cent, upon the amount of the personal estate, and 2-J per cent, upon the proceeds of real estate. This has become the established practice and rule. And where additional trouble has been occasioned in the settlement of the estate, an increased commission has been frequently allowed.</p> <p>“In Robinson’s Estate, 5 Phila. Rep. 99, it was decided by this court, Ludlow, J., in view of want of proper care and use of certain moneys of the estate by the executor, though under a claim-of right, that his commissions should be reduced to 3 per cent., and by reason of his responsibilities for certain securities, investments of the testator, he was allowed 2-J per cent, as custodian of the certificates. In the late case of Eshelman’s Appeal, 24 P. F. Smith 42, the estate, consisting of realty and personalty, amounted to about $75,000, and a commission of 5 per cent, was allowed upon the personalty, and 2J per cent, upon the proceeds of the real estate. We think the general rule mentioned applicable to the present' estate. There were no extraordinary services performed, but, as in Eshelman’s Appeal, it was ‘ attended with the quantity of trouble, care and responsibility, which the settlement of intestates’estates ordinarily imposes.’ The executors here are entitled to the same compensation as would be allowed individuals. That they are a corporation does not create any distinction. The same duties are required, and similar responsibilities incurred. Nor can they then be expected to execute trusts without just compensation. They incur expense for reliable officers, clerks and other employees; are subject to taxation of their real and personal estate, and the individuals composing the corporation are entitled to a return for the risk of the capital invested, and liable for the honesty and careful management of their employees.”</p>

<p>1. Where it is the general practice of mutual life insurance companies to receive overdue premiums, if a premium is tendered within a reasonable time after it has become due and while the insured is in his usual health, the'policy will not be forfeited.</p> <p>2. Where the company has declared a policy forfeited, and refused to receive a premium, the fact that the insured subsequently failed to pay premiums, as they fell due, will not affect the right to recover on the policy.</p>

<p>Appeal from the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1876, No. 122.</p> <p>The bill in this case was filed by A. D. Campbell and wife, on behalf of the latter, against Charles Ingersoll and John M. Thomas, trustees under the will of Elizabeth Wilcocks. The bill avers that Elizabeth Wilcocks made her will on February 5th 1848, and subsequently two codicils thereto, the last of which was dated in 1862; that in 1863. she died unmarried; that in her will she made the following disposition:—</p> <p>“I give and bequeath and devise to Joseph R. Ingersoll and Charles Ingersoll, their heirs and assigns, all the rest, residue and remainder of my estate, real and personal, which I now possess or may die possessed of, in trust for the children of my late brother Benjamin C. Wilcocks, namely, Mary Wain Wilcocks and Helen Julia Wilcocks, for them, their heirs, executors, administrators and assigns; and I direct that the trustees aforesaid shall hold the same, capital and income, until their arrival severally at the age of twenty-one years, and that no part of the same shall be expended for them or for their use during their minority, unless in the opinion of my trustees it shall be necessary to lay out for them any portion of the income, in which case I leave it to their discretion to do so ; and when they arrive severally at twenty-one years of age, the income shall be paid to them quarterly, or at other convenient periods, by my trustees, so that the same may be share and share alike, for their equal and sole and separate use, and not subject to the debts or control of their husbands, in case of their marrying ; and should either of them die without issue, then the share' of the deceased shall go, but still subject to the trust, to the survivor, her heirs, executors, administrators and assigns; and should they, or either of them, die leaving issue, then my trustees shall hold the estate, so left, for the uses which may be declared by them or either of them by last will and testament, or writing in nature thereof; and should both of them die without issue, then I give, devise and'bequeath all the estate included in this, the residuary clause of my will, to my nephew Charles Ingersoll, to him, his heirs, executors, administrators and assigns, free and clear of this trust, which in that event shall cease and determine."</p> <p>That testatrix died possessed of certain personal and real estate; that one of her nieces, Helen Julia Wilcocks, married Chandler Robbins, in 1865, and died in 1868, intestate, and without issue; that the other niece, Mary W. Wilcocks, married Alexander D. Campbell, in 1870; that on December 17th 1874, said Robbins and Sarah W. Wilcocks granted and released unto Mrs. Mary W. Campbell, her heirs and assigns, all the part, share and interest, present and expectant, of them, the said Robbins and Sarah Wilcocks, of, in and to the undivided moiety of the estate, real, personal and mixed, of the said Elizabeth Wilcocks, so given and devised to the children of Benjamin C. Wilcocks; that Joseph R. Ingersoll died February 20th 1868, and left surviving him Charles Ingersoll; that for the purpose of appointing a co-trustee, said Ingersoll granted and transferred to J. D. Rodney, all the estate devised to Joseph R. Ingersoll and Charles Ingersoll, in trust for the said Mary W. Wilcocks, in trust to convey to Charles Ingersoll and John M. Thomas, who were to hold the same upon the same trusts as the said Charles and said Joseph R. Ingersoll were to hold them; that said Rodney accordingly conveyed to said Ingersoll and Thomas; that Mrs. Campbell, at the time of the death of her aunt, Miss Wilcocks, was a minor, not contemplating marriage; that the plaintiffs were informed that the trusts were inoperative, and have applied to the trustees to make a conveyance and transfer to Mrs. Campbell, which they decline to do without the direction of the court.</p> <p>The prayers of the bill are, for an account, a transfer and conveyance of the real and personal estate.</p> <p>The answers admitted the facts, except as to Mary W. Wilcocks contemplating marriage at the time of the death of the testatrix, and averred that the duties of the trust had been performed, and that defendants submitted themselves to the court for such judgment or decree as might be proper. That Mrs. Campbell did not contemplate marriage at the time of the death of her aunt was proved and is not in dispute.</p> <p>The court below, Mitchell, J., held that the interest of Mrs. Campbell was a fee simple, and that the trustees should pay over to her whatever amount should be found in their hands to which she was entitled, and that they should make a conveyance in fee simple of the real estate. Subsequently a decree was made that the account filed was a correct account, and that the sum therein, to wit, $759.15, should be paid to Mrs. Campbell, and that a conveyance of the real estate should be made.</p> <p>Defendants appealed and assigned for error, the entry of a decree that an account should be taken, and that the personal and real estate should be conveyed and transferred to Mrs. Campbell, discharged from the trust, and holding that the devise and bequest over to the survivor of the nieces of the testatrix, upon death without issue of one of them, were void for remoteness. In holding that the devise and bequest over to Charles Ingersoll, after the death without issue of the survivor of the nieces of the testatrix, were void for remoteness. In holding that the words in the will “ die without issue,” signified an indefinite failure of issue. In holding that that the trust had become executed and the property held under it must be conveyed to the cestui que trust, and in not dismissing the bill.</p> <p>This case was first argued on the 7th of February 1877, but a re-argument having been subsequently ordered, came on for hearing on the 4th of February 1878.</p>

<p>Where there is no trust relation between the parties and no obligation to deliver specific stock, the measure of damages for a failure to deliver stock is the market value of the stock on the day it should have been delivered with interest thereon to the time of trial.</p>

<p>Appeal from the decree of the Orphans’ Court of Philadelphia county: Of January Term 1876, No. 108.</p> <p>This appeal was from the decree of the court confirming the report of the auditor of the account of George Read and Henry McCall, trustees under the will of Margaret A. McCall, deceased. The will of said decedent, which was duly proved in 1860, contained, among others, the following provision :—</p> <p>“ To my executors, and to the survivor of them,' I give the sum of two thousand dollars in trust, to invest and' keep the same invested, and pay the interest and income thereof to my nephew, George C. McCall, during his life, and after his decease, to pay interest and income thereof to his nephew, William C. McOali, until he arrives at the age of twenty-five years; and on his arriving at twenty-five years of age, to pay over to him the principal sum of two thousand dollars, with any accumulation thereon.- But if the said William C. McCall shall die before arriving at twenty-five years of age, without marrying or leaving child or children him surviving, then I give the said sum of money to the eldest child of my nephew, Peter McCall; and in event of his not having any child then living, I give the same to the children of his late brother, John G. McCall, if more than one, in equal shares. But if the said William C. McCall shall die under the age of twenty-five years, leaving a child or children, I give the said sum of money to his child or children him surviving, in equal shares.”</p> <p>William C. McCall died a.t the age of thirty-seven years, in April 1868, unmarried and without issue, in the lifetime of George C. McCall, who died five years after, in May 1873. .</p> <p>Before the auditor, the fund in controversy was claimed by Edward Green, executor of the said William C. McCall, deceased, and by Edith McCall, the eldest child of Peter McCall, living at the death of George C. McCall.</p> <p>The auditor, James V. McDonough, Esq., reported as follows:—</p> <p>“ It is clear that if William C. McCall took a vested estate under the will, then the fund before your auditor should be awarded his executor, and Miss Edith McCall has no interest now in said fund ; neither has she any interest now in said fund, if the bequest to her under the said will was contingent upon William C. McCall dying under the age of twenty-five years.</p> <p>“ The words of the will are, ‘ But if the said William C. McCall shall die before arriving at twenty-five years of age, &c., then I give the said sum of money to the eldest child of my nephew, Peter McCall.” Your auditor finds that the contingency of William C. McCall’s dying before arriving at the age of twenty-five is attached to the substance of the gift .to Miss Edith McCall, and as that contingency never occurred, no interest in the said legacy ever vested in her: Lamb v. Lamb, 8 Watts 184; Donohue v. McNichol, 11 P. F. Smith 73; 2 Redfield on Wills 593; Seibert’s Appeal, 1 Harris 501.</p> <p>“ Passing now to the main question of contention, whether or not the interest of William C. McCall was vested, your auditor finds from said clause that the prevailing idea in the mind of the testator was to provide for George C. McCall, and for William C. McCall and his children, by making a provision for the former during his life, with a remainder after his decease to William C. McCall. The only contingency mentioned by the testatrix, upon the happening of which the said fund was to go to any other person than said William ,C. McCall or his children, is, ‘ if he shall die before arriving at twenty-five years of age, without marrying or leaving child or children him surviving;’ and as, in construing this will, we must endeavor to effect the intention of the testatrix, is it not fair to presume that the testatrix intended, if that contingency did not occur, the estate was to vest in William C. McCall ? As William C. McCall did not die till after he had arrived at twenty-five years- of age, the contingency named by the testatrix can never occur; so that the estate is vested in William C. McCall, or else as to that the testatrix died intestate.</p> <p>“ It was contended before your auditor that the estate was not vested in William C. McCall—</p> <p>“ 1. Because there is no separate and independent gift to him, but an implication„arising solely from a direction to pay.</p> <p>“ 2. That the direction is to pay the interest and income to him until his arrival at twenty-five years of age, then to pay him the principal.</p> <p>“ 3. That the direction is to pay over to himself.</p> <p>“ If we look at the words of the will, we find that the bequest is, ‘ I give the sum of $2000 in trust, &c.,. to pay the interest and income to my nephew, George C. McCall, during his life ; and after his decease to William C. McCall, until he arrives at the age of twenty-five years, and on his arriving at twenty-five years to pay over to himself the principal sum.’ This is not merely a direction to pay — it is a direct gift to trustees upon certain trusts ; and the words ‘ to pay’ are the usual words defining the duty of the trustee, and created an estate in George C. .McCall for life, and a vested remainder in William C. McCall, subject to be divested upon his death before arriving at the age of twenty-five years. The mere fact that one estate under a will is provided to take effect after the termination of an intervening one, will not have the effect to prevent both estates becoming vested at the moment of the decease of the testator, the one in possession, the other in prospect or remainder: 2 Rédfield on Wills 593. In King v. King, 1 W. & S. 205, C. J. Gibson says, on p. 207: When the enjoyment of an entire fund is given in fractional parts at successive periods which must eventually arrive, the distinction betwixt time annexed to payment and time annexed to the gift becomes unimportant. In such a case it is well settled that all the interests vest together. Thus a legacy to one for life and to another at his death, goes to the legal representatives of the latter, should he not live to take it himself.’ To the same effect is McGill’s Appeal, 11 P. F. Smith 46. But Provenchere’s Appeal, 17 Id. 463, is in effect our very case. A testator gave a fund in trust to pay the income to' his daughter-in-law during her widowhood, and after her decease or marriage, to hold the same for the use of my grandchildren, A., L., F., share and share alike, the income to be applied to their maintenance and education, and the capital, to .be paid to them as they respectively attain the age of twenty-one years.’ Two of the said grandchildren having attained their majority, intermarried and died before the death of the daughter-in-law, the first named legatee for life. Held, that the legacies vested in the grandchildren at the death of the testator, and the administrators, of the deceased grandchildren were awarded their proportion of the fund at the death of the lega tee for life. In this connection it may be well to notice that the only devises over are, first, if William C. McCall shall die before arriving at twenty-five years of age, without marrying or leaving child or children him surviving, then to the eldest child of Peter McCall, Esq.; and second, ‘ if William O. McCall shall die under the age of twenty-five years, leaving a child or children, then to said child or children.’ These bequests over are by all the authorities conclusive, as to the interest having absolutely vested in William C. McCall, upon his attaining the age of twenty-five years, and only the time of enjoyment being postponed to the death of the legatee for life. Where the devise is to a person when or if he shall live to attain a certain age or at a certain age, this standing alone would be contingent; yet if it he followed by a limitation over if he shall die before a certain age, this is regarded as explanatory of the nature of the estate, which it was intended the devisee should take upon arriving at the age named, i. e., that it should then become absolute and indefeasible. The interest, therefore, in such cases, is held to vest upon the decease of the testator. Where the devise over is made dependent upon the first devisee dying before he comes of age, or without issue, or any similar event, it is considered that the devise is equivalent to a provision that the first donor shall take an immediate vested interest, liable to be defeated by the happening of the contingency named; or if it do not happen, the estate then to become absolute and indefeasible: 2 Redfield on Wills 603. The devise of the legal estate vesting the inheritance in trustees, who are required to convey the estate according to the directions of the will, can make no possible difference from one where the interest is provided to take effect directly, without the intervention of trustees.’ Id. 604. ‘ The fact that the testator makes no provision in regard to the disposition of the estate, provided the event named for the devisee coming into full possession never occurs, shows very satisfactorily that it was not in the mind of the testator to create a contingent estate, since the very fact of doing so would suggest the propriety of some provision for the disposition of the estate, in the event of that contingency not happening, as no one making a will would purposely leave property undisposed of.’ Id. 606 and 607. This same doctrine is the basis of the decision in Mutter’s Estate, 2 Wright 314, and in Burd v. Burd, 4 Id. 182. In the latter case Lowris, C. J., p. 185, says: The relevant clauses are very evidently intended to effect an entire disposition of the residue of his personal estate, and yet he leaves a part of it undisposed of, if this legacy was not from the first vested. This is a very influential consideration.’</p> <p>“The recently published case of McClure’s Appeal, 22 P. F. Smith 414, leaves us without any doubt that this legacy should be considered vested. That was a devise to the testator’s wife for her life, of his real estate, and At my wife’s decease, m'y real estate to be sold and equally divided amongst my nephews and nieces,’</p> <p>naming them. One of the nieces married and died intestate without issue, leaving surviving her her husband, anterior to the decease of the testator’s widow. It was held the real estate was converted by the will to personalty, the interests of the nephews and nieces vested at the decease of the testator, and that the husband of the deceased niece was entitled to her share. Williams, J., in delivering the opinion of the court, says, on page 418, ‘When the fund, which is the subject of the legacy, is given to another person beneficially for life, or until the legatee arrives at a particular age, or until certain debts are paid, the legatee will take an immediate vested interest in the subject, since such bequests are in the nature of remainders; the rule as to which is, that the interests of the first and subsequent takers vest together. Though there be no other gift than in the direction to pay or distribute in futuro, yet if such gift or distribution appears to be postponed for the convenience of the fund or property, or where the gift is only postponed to let in some other interest, the vesting will not be deferred till the period in question.’ See, also, Biddle’s Appeal, 19 P. E. Smith 190; Stehman’s Appeal, 9 Wright 398; McGill’s Appeal, 11 P. E. Smith 46. As to the second objection, ‘ that the direction is to pay the interest and income to William C. McCall, until his arrival at twenty-five years of age, then to pay him the principal,’ it need only be said that this evidences an intention in the testatrix to provide for the maintenance of William C. McCall, and in the words of Roberts’s Appeal, 9 P. E. Smith 72, “is an indication of 'an intent to make him the beneficiary of the corpus of the legacy. ’ And since he did attain twenty-five years, the estate became absolutely vested, abundantly appears by the authorities previously cited, to which may be added Schriver v. Corbeau, 4 Watts 180.</p> <p>“As to the third objection, ‘That the direction is to pay over to himself.’ The absolute estate in personal property will always vest by a gift to a person without using the words heirs, executors or assigns. In the case of King v. King, 1 W. & S. 205, it is true the words ‘ or their heirs’ were used; but it is clear, from a careful perusal of the decision, as Judge Sharswood says in Provenchere’s Appeal, that the decision was made irrespective of those words, and their only effect was to rather embarrass. The doctrine announced is, p. 207 : ‘ A legacy to one for life and to another at his death, goes to the legal representatives of the latter, should he not live to take it himself.’ The same objection made here was also made in Provenchere’s Appeal, 17 P. E. Smith 463, but the fund was awarded to the administrator of the beneficiary, Sharswood, J., in his opinion, disposing of it, on p. 469. The same objection could have been made in McClure’s Appeal, 22 P. E. Smith 414, as the interests were given merely to the beneficiaries by name, and was necessarily passed upon, as the husband of a deceased beneficiary was awarded her proportion of the fund.</p> <p>“Your auditor therefore finds that the interest-of William McCall was vested in him at the time of his decease, and awards the principal fund, together with the interest thereon since the date of the death of George C. McCall, after the accountant’s commissions are deducted and the expenses of the audit, to Edward Green, executor of William C. McCall, deceased.”</p> <p>Edith McCall filed exceptions to this report, which the court. dismissed, and confirmed the report, from which decree she took this appeal.</p>

<p>Error to the Court of Oyer and Terminer of Lancaster county: Of May Term 1878, No. 102. Certified from the Middle District.</p> <p>Indictment of James E. Pannell for the murder of his wife, Anna E. Pannell. Plea, “ not guilty.” The evidence produced at the trial disclosed the following facts : Pannell was born in Maryland in 1843. He lost both of his parents at an early age and was taken by an uncle in Lancaster county, Pennsylvania, who cared for and educated him as a son. As he grew towards manhood he became dissipated and reckless, and finally was discarded by his uncle, upon whom he had forged a check for $1500. After an absence of several years he returned to Lancaster in 1875 and early in 1876, when at a religious revival made the acquaintance of Anna E. Hedricks, to whom, after making some inquiries about her, he paid his addresses, and in April 1876 they were married. They "went to housekeeping in a house procured by Pannell and for a time lived, to all appearances, pleasantly and happily together, the prisoner, during this time, working as a carpenter, having during his wanderings obtained some knowledge of that trade. In May 1876, it appeared there was a quarrel between them, the mind of Pannell seeming to be possessed with an idea that his wife was unfaithful to him, It appeared also that he was on some occasions irritable and quarrelsome, and upon others kind and loving. At this time the prisoner was employed on the Centennial grounds in Philadelphia, and made weekly visits to Lancaster. Upon one of these visits, on July 4th and 5th 1876, he again quarrelled with his wife, during which he struck her and threatened to kill her, and was only prevented from doing her more serious injury by the interference of her mother. On the evening of the same day he again made threats that he would murder her. He seemed at this time very much depressed in spirits, and on leaving took a part of his wife’s clothes with him and expressed the hope that he would be killed by the cars on his way to Philadelphia; that his heart was broken and his family broken up, and Anna would not live with him any more. He returned to Lancaster on the 20th of July and went to the house, in the third story of which Mrs. Hedricks, his mother-in-law, was living, having moved in his absence. He slept that night on a lounge in the apartments of the family who occupied the lower stories of the house, and next morning took breakfast with Mrs. Hedricks, and afterwards went to see his wife, who was then employed as a dining-room girl at the Keystone Hotel. His object in seeing her, it seemed, was to effect a reconciliation, for on his return he remarked to Mrs. Hedricks, “ he had seen Anna and she told him she wouldn’t make up with him.” He dined with Mrs. Hedricks on that day, and requested her to remain in the house, as Anna was coming that evening. Anna came about half-past eight o’clock, and after some conversation in regard to her little brothers, said, “ Mother, I have something to tell you.” The prisoner then took a chair and sat down beside her and the children. The deceased then again remarked, “ Oh, mother, I have something to tell you.” The prisoner then said to her, “ I must tell you something. I want to talk a little business to you this evening.” She replied, “ Pannell, I feel good this evening, and I didn’t come here to quarrel or make any fuss with you. I tell you now as I told you to-day, I’ll freely forgive you for all you have done to me, and I have made up my mind I will never live with you again.” The prisoner then arose and replaced the chair whence he had taken it and then went to the window and looked up and down the street. He then returned and standing close by the side of the deceased, said to her, “ Anna, you look beautiful. Anna, we will make up to-night or we will part for ever,” and as he used the last words he discharged a pistol at her, the ball of which lodged in her left cheek. He then withdrew a few feet and reloaded the pistol, and approaching near to the deceased, again shot her in the head. The deceased never spoke after the second shot and died early on the following morning. After the shooting the prisoner attempted to escape by going-out on the balcony of the third story and sliding down a post to the second story, where he was arrested. When arrested he begged the officer “ not to let the crowd handle him roughly.’' When asked by the officer what he had been doing he said, “ I killed her, God damn her ! it was just what she ought to have;” and when asked why he had shot her twice, replied, “ I shot to kill the God damned whore,” and when told she was dead, said, “ she ought to be in hell long ago.”</p> <p>The defence alleged that the prisoner was insane. It was claimed that he had hereditary insanity, and to support this claim evidence was offered to show that his mother was insane and committed suicide. There was evidence by members of his family and neighbors, that in early life there were indications that he was of unsound mind. The testimony of those who knew him for the period immediately preceding the murder, concurred, however, in the opinion that there was nothing in the prisoner’s conduct to induce tha belief that hé was insane. The evidence of the medical experts in regard to his insanity was about equally balanced.</p> <p>At the trial, before Patterson, J., the Commonwealth put the following question in chief to a number of her witnesses : “ In all the intercourse you had with the prisoner, during the period of your acquaintance, with all your observation of his conduct, manner and appearance, did you or did you not discover anything that led you to think that he was insane ?”</p> <p>These questions were permitted under objection, and formed the subject of numerous assignments of error.</p> <p>One of these witnesses for the Commonwealth, having testified that he was acquainted with and had had frequent association with the prisoner, and that he did not discover anything which led him to think he was insane, was asked, on cross-examination, “ Did you or did you not, from all that you have related concerning this defendant, discover anything upon which you could base an opinion as to whether he was sane or insane ?” The witness replied: “ I saw nothing that would lead me to believe that he was insane.” He was then asked, “ Did you or did you not see enough in your intercourse with this defendant to warrant you in expressing your opinion as to his sanity or insanity, your attention not having been called to the fact?” The objection to this question was sustained, and exception sealed.</p> <p>Among the points presented by the prisoner was the following:</p> <p>If the jury believe that at the time the homicide was committed the defendant, James E. Pannell, was insane, he must be acquitted.</p> <p>Ans. “ This point the court answers in the affirmative, as an abstract proposition, but add, that the jury must be satisfied, by satisfactory and conclusive proof, of the insanity of the defendant. The party alleging insanity must prove it, and the burthen of proof is upon the defence, to convince you that the mind of the defendant was deranged, and so deranged as to make him irresponsible. If the jury so believe, from all th^ evidence in the case,- then defendant must be acquitted.”</p> <p>In their general charge, the court, inter alia, said, [“We had almost concluded to leave the question of insanity to you, with the comments of the able counsel for the Commonwealth and the counsel for the prisoner, and simply remark that- it is a question of fact for you to determine from the evidence, and if made out beyond a reasonable doubt, it is a good defence, and must acquit the prisoner.] * * * The law presumes sanity. In all criminal trials, the person charged with the commission of the offence must be taken to be of sound mind until the contrary is shown, and, therefore, to make insanity a good defence, it must be proven to the satisfaction of the jury.</p> <p>“ The burden of the proof rests upon the defendant. Hence, you have seen that, under the rules of evidence, the court have admitted, and both the parties, pro and con, in this trial, have availed themselves of the opinions of distinguished medical writers; indeed, of medical science, in the calling of witnesses, termed experts ; gentlemen of the medical profession, who have studied the human system, and the symptoms which are supposed to determine the presence of insanity; and also a number of other witnesses, not professional, who knew the prisoner, and saw and had personal contact with him, had conversations with and made their own observations of him.</p> <p>“ When you look at the medical testimony called on the one side and the other, you discover a diversity of views, and directly opposite professional opinions. There is not any more diversity amongst the other witnesses called to testify, than there is difference between the experts themselves. This is not unusual, and especially in cases like the present, when insanity is pleaded as the extenuation. * * * [Now, whilst the medical witnesses may be paramount, and their opinions, in many instances, greatly superior to that of other witnesses in aiding a jury to come to a correct conclusion in many kindred subjects arising in criminal causes, the nature of their profession having directed their attention to the subjects, yet, in the case now trying, we question very much whether you will realize much, if any, valuable aid from them, in coming to a correct conclusion as regards the responsibility for crime by this prisoner.</p> <p>“ You must be satisfied from the evidence that this was a case of insanity, and therefore you must form your own opinion, and as ordinary men of the world, as men seeking the truth. You may be as well qualified to form an opinion as any other on this subject-matter.”]</p> <p>The court then proceeded to review the different theories and classifications' respecting mental diseases, and in another portion of the charge said :—</p> <p>“ [Now, whether all or any of those conditions existed in the prisoner at the time of the killing, is simply a question of fact, to be established, if possible, by conclusive and satisfactory evidence. The accused acting under those conditions of mind, is assumed to have been an ¿revoluntary agent or actor.] That must be proven to your satisfaction before you can acquit.”</p> <p>The verdict was “guilty of murder in the first degree.” After sentence the prisoner took this writ, assigning forty-six errors. Among them were those assigned to the admission of evidence as above noted, the answer to the defendant’s point, and the portions of the chai’ge in brackets, which are the only assignments passed upon by this court.</p>

1, of Philadelphia county: Of January Term 1878, No. 19. This was a petition for a mandamus, filed by Samuel C. Perkins and others, a majority of the commissioners for the erection of the Public Buildings, in the city of Philadelphia, against Amos M. Slack and others, members of the Select and Common Councils of said city. The petition, in substance, set forth that by Act of Assembly, August 5th 1870, Pamph.

3, of Philadelphia county: In equity. Of January Term 1878, No. 134. Bill in equity, filed by William E. Naile, against Henry C. Olmsted and George N. Watson, which set forth that Henry Sell, being seised in fee of certain real estate, died on May 18th 1842, leaving a will dated November 2d 1841, with two codicils, dated respectively, November 2d 1841, and April 29th 1842, which were duly admitted to probate.

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1877, No. 20.</p> <p>Assumpsit by John L. Saylor against The Domestic Sewing Machine Company. The defendant, among other pleas, pleaded “set-off,” and gave notice of a joint and several bond in the sum of $5000, executed to the defendants by plaintiff and others.</p> <p>On the trial, before Biddle, J., the plaintiff produced evidence to show that the defendants were indebted to him in the sum of $1800, the price of thirteen wagons sold and delivered to them. Under the .plea of set-off, the defendants offered in evidence a joint and several paper in writing, signed by the plaintiff and another, whereby they became sureties to the defendants for the faithful conduct of one Hippard as agent. The plaintiff objected to this writing on the ground that it was not under seal and was at variance with the notice of special matter, which described the instrument as a bond, and that it was therefore inadmissible.</p> <p>The defendants then, by leave, filed special pleas, setting up this instrument as a contract, and accruing indebtedness under it, when it was admitted, and as proof of indebtedness three promissory notes of Hippard to the defendants were given in evidence. The defendants also alleged an indebtedness of Hippard over and above the amount of these notes. The plaintiff denied the indebtedness.</p> <p>It was conceded that the evidence did not establish a settled account between the defendants and Hippard, resulting in a balance, which they agreed on.</p> <p>The plaintiff asked the eourt to charge:—</p> <p>Such set-off cannot be allowed, because the account between the company and Hippard, its agent, for whose liability, it is alleged, the plaintiff is liable under the writing in evidence, has not been settled and adjusted. Hippard alleges that the company is indebted to him; this the company denies, and it cannot now be said with certainty how the account stands.</p> <p>The court charged:—</p> <p>“ The defendants also, in answer to plaintiff’s claim, present a counter claim or set-off against him, arising from an instrument of writing, which amounts to an agreement by the plaintiff to become surety for Hippard for indebtedness due or to be incurred by him to the defendants.</p> <p>“ The surety has a right to be satisfied that there is a debt owing before he can be called on to pay. There must be a settlement and adjustment of accounts between Hippard and the defendants, before Saylor can be held responsible, and you must be satisfied that there was a settlement of accounts and balance struck, before you can give defendants a verdict.</p> <p>“ Unless you believe that there was a final adjustment of accounts between Hippard and the company, and a balance, struck between them in favor óf defendants, you must disregard the question of set-off.”</p> <p>This ruling was excepted to by defendants.</p> <p>The verdict Avas for the plaintiff for $1890.88, and, after judgment thereon, the defendants took this writ, and assigned for error the refusal of the court to charge as requested, and the portion of the charge noted.</p>

3, of Philadelphia county: Of January Term 1878, No. 167. Foreign attachment, issued by Bagby & Rogers against the Atlantic, Mississippi and Ohio Railroad Company, defendants, and the Pennsylvania Railroad Company, garnishees.

<p>Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1876, No. 144.</p> <p>Appeal by Catharine Hunt, guardian of Leonora Jackson, minor child of James Jackson, deceased, from the decree of the court in the matter of the account of the administrator of said decedent.</p> <p>At the audit'of the estate before Hanna, J., Mary Jane Jackson claimed to be allowed $300, under the Act of 1851, and also one-third of the estate, as the widow of said decedent, who had died intestate. It was denied that she had ever been his wife. It appeared that decedent was married to the claimant in 1871, and cohabited with her until 1874, being generally reputed to be man and wife. At the same time he had a wife living, from whom he had been separated several years, and who had instituted proceedings in divorce against him, which was not obtained until December 1873. It Avas not shoAvn that the claimant had any knowledge of the first wife. After the divorce and up to the time of his death, the decedent continued to live with the claimant, but they Avere never actually married. In an opinion the auditing judge said:—</p> <p>“ Under these facts, notwithstanding the second marriage of decedent Avas illegal, yet, after the decree of divorce, he Avas at liberty to marry again ; and although no actual marriage again took place with her who now alleges herself to be his Avidow, yet the cohabitation and reputation of herself and decedent, from the date of the divorce to the day of his death, are sufficient in law from which to presume a marriage betAreen them, and entitle her to a share in his estate. The claim made by her must therefore be allowed; her claim to the $300 exemption being in time.”</p> <p>Mrs. Hunt filed exceptions to this adjudication Avhich were dismissed by the court (DAvight, J., dissenting), and the adjudicátion confirmed when she took this appeal.</p>

<p>Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1876, No. 146.</p> <p>Action on the case for negligence, brought by Patrick E. Mc-Kenna, trading as Allen, Scott & Co., against John H. Gould, trading as Gould & Co.</p> <p>At the trial, before Elcock, J., it appeared that the plaintiff occupied a store on Second street, Philadelphia, adjoining one to the north, owned and occupied .by the defendant. McKenna’s building had a one-story back building, extending about one hundred feet to the rear, in which he kept his carpets, which were a part of his stock of goods. In 1871, Gould built a similar one-story hack building, running back the same distance, in which he used the plaintiff’s party-wall, and making his roof pitch southward or towards the plaintiff’s. At the end of this building was a stable, which forms the eastern boundary of this rear building, and rises about twenty feet above the roof of it. The Avails of the front building were also higher than the hack building, and the roof of the latter was therefore converted into a sort of tank, enclosed on all four sides, first, by the wall of plaintiff’s four-story building on the west; second, by the Avail of plaintiff’s four-story building on the north; third, by the stable to the east, and fourth, by the party-wall on the south, the battlement-wall of which rises about three and a, half feet from the lowest point of the roof of plaintiff’s rear building. Eor any accumulation of water upon the roof proceeding from a rain-fall, there was no possible escape, except either through the party-wall of defendant and plaintiff or a discharge-pipe, located at the southeast corner of said roof. The roof of plaintiff’s back building Avas about seventeen feet in width, and sloped southward towards the party-wall between defendant and plaintiff, at a grade of betAveen three-quarters of an inch or an inch to the foot. The roof was covered. Avith tin, which, at its junction with the battlement-wall, was turned up at right angles and along the battlement-wall as an apron or flushing, to the height of about twelve inches.</p> <p>On the 12th of August 1873, there Avas a very heavy rain-storm, and the water entered the plaintiff’s building and damaged his goods. The plaintiff claimed that the water had risen above the apron or flushing, and had run over and through it and entered through the party-wall.into the plaintiff’s store, causing the damage of which complaint was made.</p> <p>On the part of the defendant, it was contended that the water had entered the plaintiff’s building by reason of defects in the wall, and that if the plaintiff had not placed his goods against the wall they would not have been damaged.</p> <p>There was evidence, on behalf of the plaintiff, that the shelves on which the carpets were placed were about two inches from the party-wall, and that the water, trickling down the uprights, had occasioned the damage to the goods. There was also evidence that the goods of plaintiff had been once before injured by the rain in a similar way.</p> <p>The plaintiff submitted the following points, which the court affirmed:—</p> <p>3. That it was the duty of the defendant, the owner of premises adjoining those of the plaintiff, to prevent a concentration of rainwater upon his roof which might or could penetrate into plaintiff’s premises, and the failure so to do rendered_him liable.</p> <p>4. That it was incumbent on the defendants to provide that no greater injury or damage should be inflicted upon the plaintiff through the concentration or accumulation of rain-water upon defendant’s roof than if the said rain had fallen naturally upon his grounds, and that his failure so to do renders him liable.</p> <p>5. That if the defendant failed to provide a sufficient drainage for rain-water falling on his roof adjoining the plaintiff’s premises, he is guilty of negligence and therefore liable.</p> <p>The following, among other points, were submitted by defendant, to which'are subjoined the answers of the court:—</p> <p>1. If the jury find that the water flowed into plaintiff’s store through the wall above the apron or flushing of defendant’s roof, owing to the open, loose and dilapidated condition of that part of said wall, they must give a verdict for defendant.</p> <p>Ans. “ I affirm that, if the apron or flushing of defendant was constructed as a prudent man in view of all the circumstances would construct such an apron or flushing.”</p> <p>2. If they so find the verdict must be for defendant, even though the water rose on defendant’s roof above said apron or flushing owing to its inability to escape by the channél.</p> <p>Ans. “Refused.”</p> <p>3. The defendant was not obliged to repair or take down the party-wall above the apron or flushing of his roof, however dilapidated it may have been, or to apply to the building inspectors to have it removed, nor was he liable for any injury which might arise from the dilapidated character of the wall.</p> <p>Ans. “ That I affirm; but he was obliged to protect the wall from injury in consequence of water falling from his roof.”</p> <p>4. If the jury find that the roof on defendant’s store was constructed in such a manner as to drain and carry off without injury to his neighbors the water from all ordinary rains, and further find that the rain which caused this injury was a very extraordinary and unusual raiñ, they must find for the defendant, though they find that the injury arose in whole or in part from the backing up of the water on defendant’s roof above the- flushing by reason of its' inability to escape in the way provided for it.</p> <p>Ans. “ That I affirm ; if you find the flushing was constructed in such a manner as a prudent man would have constructed it.”</p> <p>In their general charge the court, inter alia, said</p> <p>“ The question, I think, practically narrows itself to a determination of the question, was the apron sufficiently high and sufficiently strong so that water could not flow through or over it ? If it was, then the defendant is not liable, for it malees no difference as to the size of the pipe which was connected with the roof for the water to escape ; or whether, in fact, there was any there or not, if the defendant protected this party-wall in a manner in which a prudent or cautious man would for the purpose.”</p> <p>The jury, after retiring, came bade into court and asked for instructions upon the following questions, to which are appended the answers of the court:—</p> <p>1. If part of the water which damaged plaintiff’s goods came from the top of the wall, can he recover ?</p> <p>Ans. “ The plaintiff cannot recover for any injury occasioned by water from the top of the wall.”</p> <p>2. If yes, ought not the amount of damages claimed be reduced proportionately as the goods have been damaged by the quantity of water passing through the top of the wall ? That is, if one-fourth, one-third, or one-half of the water that passed into plaintiff’s store, damaging his goods, came from the top of the wall, ought the award of damages not be one-fourth, one-third or one-half less in proportion ?</p> <p>Ans. “You are sworn to determine the case according to the evidence. You must determine how the damage was occasioned. If by water from the top' of the wall, plaintiff cannot recover. If the water came through the wall in consequence of the negligent or improper construction of defendant’s roof, the plaintiff is entitled to damages — the amount you must determine from the evidence. If you can, from the evidence, determine that the water came from both sources, then you may award damages in proportion to the quantity which you find flowed from the source of the negligence. This you must determine upon the evidence.”</p> <p>The verdict was for the plaintiff for $1019.25, and after judgment the defendant took this writ, assigning for error the answers to the foregoing points and the portion of the charge noted.</p>

<p>Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1876, No. 164.</p> <p>Assumpsit by the First National Bank of Lebanon against Henry L. Cake, to recover from the defendant the amount of a draft, dated December 27th 1872, for $3150, at four months, 'and a note, dated May 1st 1873, for $650, at two months, on which defendant was an accommodation' endorser. These instruments had been discounted by the plaintiffs for Simon J. Stine, in renewal of similar paper, the original debt having been created at least two years prior to the date of the draft, and renewals having taken place every few 'months ; interest at the rate of twelve per cent, per annum having been paid by Stine during the whole time. About the dates at which the respective instruments in suit fell due Cake endorsed other notes of Stine to take up those in suit, and Stine sent the new notes to the bank for that purpose, the note to renew the draft being sent after protest of the draft. The bank made no response to the request to renew the credit, though it had been common for them' to renew protested paper for Stine, but they retained the notes. Calce always thought the instruments in suit had been renewed by the new notes until this suit was brought. Stine was insolvent at the time of suit brought; but when the instruments sued on were protested, and the note renewing the draft fell due, he had enough property to save Cake harmless. The bank’s cashier told Stine, some time after the receipt of the new notes (Stine said after the note renewing the draft fell due), that they would not renew the instruments in suit, hut they did not return the notes sent them for the purpose of effecting a renewal.</p> <p>At the trial, before Thayer, P. J., the foregoing facts were disclosed, and the defendants submitted, among others, the following points, all of which the court refused :—</p> <p>3.' If the jury believe that the note and draft in suit were paid by other notes, the plaintiff cannot recover.</p> <p>5. If the jury believe that the defendant had reasonable cause from the conduct of plaintiff’s officers, to believe that the draft and note in suit had been renewed by other notes, and that in consequence of such belief the defendant had lost his opportunity of recovering the amount of the note and draft in suit against Simon J. Stine, the principal debtor, or of securing himself against loss thereon, the plaintiffs cannot recover.</p> <p>8. If the jury believe that the plaintiff knowingly received, reserved, or charged a rate of interest greater than 6 per cent, per annum on the draft and note in suit, or either of them, or on any paper, for which the principal debtor, Simon J. Stine, was liable, and of which the draft and note in suit are renewals, either immediately or remotely, the plaintiffs can only recover the sum or sums loaned at the date of the original usurious charges, less the whole amount of interest paid on and after the last-mentioned date or dates, respectively.</p> <p>In their general charge the court said, [“ It was Stine’s duty to ascertain whether the notes of April and July 1873 were accepted by the hank in renewal of the draft and note in suit or not, and the defendant is in no better situation. There is no evidence that the bank agreed to accept the notes in payment or renewal of the note and draft.]</p> <p>“But the Act of Congress provides that the taking of illegal interest by a national hank shall work a forfeiture of all the interest they would otherwise be entitled to. The plaintiffs, therefore, are not entitled to recover any interest at all, if you find that more than six per cent, was charged on the note and drafts in suits. [But the Act of Congress only applies to the instruments in suit, and not to prior transactions between the parties, although the instruments in suit may have grown out of them, and have been in whole or in part renewals of them. Mr. Stine, however, would have a defence to the extent of the usurious interest charged, not only on these notes, but other transactions out of which these have come.] Whatever he has paid as usury goes to reduce the amount of the principal, .and the endorser has the same defence, to the extent of the usurious interest, as the maker would have.”</p> <p>The verdict was for the plaintiff for the amount of the draft and note without interest.</p> <p>Defendant took this writ and assigned for error 1, 2 and 4, the refusal of his 3d, 5th and 8th points; and 3 and 5, the portions of the charge embraced in brackets.</p>

2, of Philadelphia county: Of January Term 1878, No. 136. This was a hill in equity, filed by The Library Company of Philadelphia, against William J. Donohugh, Collector of Delinquent Taxes of the city of Philadelphia, for an injunction to restrain defendant from proceeding to levy and collect an amount equal to the legal tax rate for the year 1876, on the library and library building of the complainant.

<p>Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1876, No. 147.</p> <p>Action on the case, by the Locust Mountain Coal Company, against Joseph M. Freck.</p> <p>Plaintiff owned two adjoining coal tracts, in Columbia county, called respectively Centraba and Hazeldell. .The first it leased, in 1862, to defendant, for a term of ten years, and the other to Robert Gorrell & Co. The defendant in his lease was given the right “ to dig, mine and take away coal, as their own property, from the véins of coal above and below the water level, as hereinafter limited and described, viz.: All the' coal in the south dipping vein, known as the Mammoth vein, in the Centraba or Oentreville basin, in the county of Columbia and state aforesaid, beginning at the east line of the lands of the party of the first part, and following the vein westward one mile and one-third of a mile; also all the coal in all other south dipping veins, in said Centraba basin, within the limits of the run hereinbefore named, which the parties of the second part shall cut by tunnel, and work on or before the 1st day of January 1866.” For this privilege, Freck was to pay plaintiff a royalty of twenty-five cents per ton. Gorrell & Co. had a similar lease of all the coal in the “ north dipping vein,” the royalty reserved being thirty-five cents per ton.</p> <p>The veins form what is called a basin, oblong in shape, many miles in length, the north and south sides sloping to the bottom, something like the letter V, and drawing together at the eastern and western ends of the basin, in a formation something like the end of the borvl of a spoon. The coal lies between thick seams or layers of slate, like the leaves of a book between the covers of it. The covers represent the slate. That part of the vein, or side of the basin which inclines or dips to the north, is called the “ north dip,” and the other side of the basin, or part of the vein which inclines to the south, is called the-“ south dip.” The lowest point, where the two dips meet, is called the synclinal axis.</p> <p>The controversy in this case arises from the interference of the mines worked, on the north and south dips of the Mammoth vein, near the synclinal axis.</p> <p>This axis formed the boundary line between the respective tracts leased by Gorrell and defendant, and 'this action was brought for damages resulting from, the trespasses of Freck, who, it was alleged, had crossed this line with his gangway during the course of his mining. It was shown that Freck had crossed this axis, his gangway being lower than that of Gorrell, and the water from 'the mine of the latter flowed into the Centraba, and that, by reason thereof, the plaintiff was compelled to incur large- additional expense for machinery and pumping. ' It was also in evidence that Freck had mined seven thousand tons of coal out of Hazeldell, upon which the additional royalty of ten cents per ton was claimed, and for which, it seemed, he paid. There was considerable evidence, on the part of defendant, to show the difficulty of ascertaining the true location of the synclinal axis until it had been reached by working the mines; and plans were offered in evidence showing that the plaintiff’s own engineers were not positive as to its true location. He also gave evidence to show that the damages complained of could have been avoided, if Gorrell had raised the grade of his gangway, or carried off the water by means of troughs. By the terms of the lease, the plaintiff reserved full power to supervise the work, under the inspection of its own engineers, and in pursuance thereof, its engineer, Mr. Stockett, had, at various times, entered and inspected the operations of Freck, and on the 22d of April 1871, sent him the following notice:—</p> <p>“ Office Locust Mountain Coal & Iron Co.,</p> <p>Centraba, April 21st 1871.</p> <p>Gentlemen:</p> <p>A part of the breasts turned on the south side of your east gangway of 2d lift on the Mammoth Vein, is beyond the limits of your lease, and consequently within the limits of another lease. The object of this notice is to prevent any infringement on the rights granted to the lessees.</p> <p>Yours respectfully,</p> <p>Thomas R. Stockett, Eng. and Agt.</p> <p>Messrs. J. M. Freck & Co.,</p> <p>Lessees of Centraba Colliery.”</p> <p>On the same day Mr. Stockett wrote to the president of the Locust Mountain Company, detailing a conversation he had had with Freck and his mining-boss, Williams, wherein they had expressed their confidence that there was yet another south dip between the breasts referred to and the adjoining lease of Gorrell & Co., and stating his own opinion that whilst this was possible, it was not probable. It did not appear that there was any remonstrance or caution against Freck proceeding with any experiment to discover this other “ south dip.” The junction of the two mines was first made by Gorrell & Co. after Freck had passed the boundary line. At this time the gangway of Gorrell & Co. was lower than that of Freck, yet, instead of making the grades conform, they drove it still lower.</p> <p>At the trial, the plaintiff having proved that Gorrell, in driving his gangway in the Hazeldell colliery broke into the breast of the Centraba, and that the interference of the gangways produced a necessary peril, the counsel of defendant, on cross-examination of a witness, who was a mining engineer, produced by the plaintiff, asked him,</p> <p>. “You say that this interference produced a necessary peril. At the time Gorrell, with his gangway, broke into breast 9, could not that difficulty have been avoided by a fair elevation of his gangway, so as to have avoided the gangway of Mr. Freck ?”</p> <p>The plaintiffs objected to the question, because there was no duty on Gorrell to change his course of mining, and no control over him by the plaintiffs. The court sustained the objection.</p> <p>The defendant, on the cross-examination of a mining engineer and a witness on the part of the plaintiff, who had testified to the location of the gangway driven by the defendant, proposed to ask him: “ State, when the gangway struck the rise or pitch, where it turned or deviated first towards the south in following the bottom sla.te, whether they did not pursue the best and most approved methods of determining the synclinal axis by the course of the gangway itself?”</p> <p>The court also sustained the objection to this question. The following points were presented by plaintiff, all of which the court affirmed:—</p> <p>2. By the lease from the company to Gorrell, no right whatever was reserved to prevent Gorrell turning the water of the Hazeldell into Centraba, and the only right they had in that respect was precisely what they would have if they had not been Gorrell’s landlord.</p> <p>5. If the defendant extended his workings beyond the boundary line fixed by the lease, and thereby the colliery leased to him became connected with the adjoining colliery, the defendant is liable for any damage the owners of the colliery necessarily suffered in consequence.</p> <p>6. If the Centraba colliery, by means of the connection thus formed, became liable to the flow of water from Hazeldell, and the risk of that liability diminished, the renting value of Centraba, and the lessors sustained a loss, the defendant is liable for the amount of the loss thereby suffered by the landlord..</p> <p>The following points were submitted by defendant, to which are subjoined the answers of the court:—</p> <p>1. That it appears, by the lease from plaintiffs to defendant, that the south dipping veins were leased to defendant, and by the lease from plaintiffs to Gorrell, that the north dipping veins were leased' by plaintiffs to Gorrell, and it is a conceded fact that these veins meet and intersect at the bottom of the basin; that if the jury believe that plaintiffs thus, by their own act, provided for and authorized the interference and intersection of the two workings, and the consequent opening of communication between the. two mines, and that the workings of Gorrell, closely approaching the bottom of the basin, would, in a very short time, have produced such connection of the two mines, plaintiffs cannot recover for the consequences of such connection.</p> <p>Ans. “ I affirm that point, so far as it applies to the state of facts which have been proved before you. It undoubtedly is a supposable case, that if the defendant had mined the south dipping vein down to and along the axis, which he had a right to do, and if Gorrell had mined the north dipping vein down to and along the axis, which he had a right to do, there would have been, along the entire course of that axis, if it was opened at all, a joint gangway or opening of these two mines. That would have been a perfectly legal act, I think, of both the defendant and Mr. Gorrell; and for any injury that might have resulted from such an opening as that the plaintiff would have no remedy against Freck. But if you are-of opinion that the opening which was- made was a different kind of opening from that, and produced different consequences, if it was an opening caused by the trespass of Mr. Freck beyond his own boundary, then the applicability of that point does not arise,, and you should consider the case independent of that.”</p> <p>' 2. That if the jury believe the best scientific, as well as the best practical methods known to the art of mining were employed by defendant, in working the south dipping veins, as he approached and arrived at the bottom of the basin, and that such scientific and practical methods, faithfully employed, would not have enabled defendant to make any more accurate ascertainment of the true position of the synclinal axis than he did through his workings, then there can be no recovery by plaintiff.</p> <p>3. That the lease is to be interpreted in the light of the best methods known to the science of mining, and that both parties to it are to be understood as having these in view when they contracted, and that if the veins were mined only in the methods and to the extent which such scientific methods prescribe, there can be no recovery by plaintiff.</p> <p>Ans. “ Neither of these points are accurate statements of the law. They are the theory -which the defendant’s counsel has argued to you, but they are not the theory which I think governs this case.</p> <p>“ When a person approaches a point in which his rights come to be in doubt, and it is a matter of difficulty and danger to ascertain whether he is exactly right or not, it is his duty to stop short or to go on at his own risk. If he does go on, not having any certain light, he is responsible for the consequences.</p> <p>“ That the precise location of the synclinal axis is purely a question of fact, and exclusively for the determination of the jury, and that if the jury believe defendant did not transgress that line, as located by the jury, there can be no recovery by the plaintiff.”</p> <p>In the general charge, the court, Mitchell, J., also said:—</p> <p>“ This lease gave as a boundary of the premises leased to the defendant, on the south side (and that is the only side with which we are concerned in this controversy), what is called the bottom of the basin, or, more technically, and perhaps more accurately, by some witnesses, the synclinal axis.</p> <p>“ This axis, of course, you will understand, is an imaginary line, but it is the line where the north and the south dips come together, wherever that may be. This line, theoretically, is as fixed and definite as any boundary line can be; but, practically, it is a matter of very considerable doubt and difficulty to locate it exactly upon the land. Especially is this the case in the early part of the workings of a mine, before the bottom • of the basin, or what may ■be called the debatable ground, through which this axis runs, has been laid open to admit of accurate measurement by scientific means. [Now, the difficulty in knowing where the correct line is, which forms the boundary of the defendant’s lease in this case, does ■not in any way affect the rights of the parties.] It is not your (business, as members of the jury, nor is it mine, to make contracts for other people, or to say that they ought to have made their contracts different, in order to avoid disputes. That was their own business. The parties in this case ha/ve made their contract, and your duty and mine is to see that each performs his proper duties, and obtains his proper rights under the contract which they have made.</p> <p>[“ The synclinal axis, therefore, was the boundary which defined the defendant’s rights in 'this case, and working across that boundary, whether it was easy or difficult to ascertain, whether it was done intentionally or in ignorance, was a trespass for which the defendant is liable, if any damage has thereby occurred to the plaintiffs.”]</p> <p>The verdict was for the plaintiff for $17,000. The defendant assigned for error the rulings of the court on the foregoing offers of testimony, the answers to points and the portions of the charge in brackets.</p>

<p>1. In the absence of a provision in a lease, that the lessor shall repair, it is no defence in an action for the rent, that the demised premises are not in a tenantable condition.</p> <p>2. A lessee cannot avail himself of the fact that an estate is held by a trustee under the provisions of a will, which directs him to keep the demised premises in repair, although the lease in terms is made subject to the provisions of said will.</p>

<p>1. Where a term of years is sold by a sheriff under execution, thfe sale operates and takes effect as an assignment at law, and a purchaser at such sale takes the estate liable to such covenants of the lessee as may have attached to the property demised, and as he assumes these liabilities of the lessee he likewise takes all the interests of the assignor in the thing assigned, -whether in possession or expectancy.</p> <p>2. The covenant to insure, in the lease in this case, was not merely personal or collateral, but became annexed to the premises demised, and all its obligations, as well as privileges passed to the purchaser of the term of years at the sheriff’s sale.</p>

<p>In an action to recover damages for breach of warranty of a horse, the plaintiff laid the damages in his narr. at $1000. The evidence showed that the price paid for the horse was $150, and that subsequently in his diseased condition he was worth from $80 to $75. The verdict was for plaintiff for $123.02. On the ground that this sum was made up of a principal of $99.57, and interest from the time of the alleged breach of contract, the defendant took a rule to show cause why judgment should not be entered upon the verdict without costs, for the reason that plaintiff, as required by the Act of March 20th 1810, had not filed an affidavit that he believed the damages exceeded $100, and was not therefore entitled to costs: Held, reversing the court below, that he was entitled to costs.</p>

<p>1. The 7th section of the 5th article of the constitution provides, that the prothonotary of the courts of Common Pleas’ of Philadelphia county shall receive a fixed salary; to be determined by law and paid by said county, and in the next clause provides, that the fees collected in such office shall be paid into the county treasury: Held, that these clauses should be construed together and interpreted to mean that until the legislature shall fix the salary of the prothonotary, the fees of his office are not to be paid into the county treasury.</p> <p>2. The place of the clause as to fees, its context and connection, and the reason, intent and spirit of the provision, all unite in condemning as illogical and unreasonable the view that this clause must be dislocated from its</p> <p>Íilaee and connection, and treated as an independent and absolute provision, or the immediate payment of the fees of the office into the county treasury, and this conclusion derives force from its relation to other parts of the constitution and schedule.</p> <p>3. The 18th section of the Act of March 21st 1876, relative to the salaries of county officers, which postpones the operation of the act until the expiration of the terms of the incumbents, is'constitutional.</p>

<p>The Bank of Brandywine, incorporated by the legislature of the state, prior to the adoption of the new constitution, was authorized by its charter to borrow money by mortgage of its real estate. It executed a mortgage upon its bank building, to secure a loan, and some time thereafter was compelled by its embarassments to make an assignment for the benefit of its creditors. Proceedings were instituted to foreclose the mortgage, when the assignee applied to the court for an injunction to restrain the collection of the debt, on the ground that the mortgage was unlawfully created, inasmuch as the bank had'not complied with the provisions of sect. 7, art. 16 of the constitution, prescribing the mode in which the indebtedness of corporations is to be incurred, and the Act of April 18th 1874 enacted to carry the section into effect. The court below granted a preliminary injunction: Held, that the injunction should not have been granted.</p>

<p>Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1876, No. 30.9.</p> <p>Appeal of T. Abbott Wood and William H. Martin, surviving executors and trustees under the will of Michael McOloskey, deCeased, from the decree of the court dismissing the exceptions of said executors to the adjudication of their second account.</p> <p>McOloskey died in 1860, and by his will gave his property to his executors in trust to pay the income to his wife, Ellen McOloskey, during the term of her life, and after her death to his daughter, Catharine Mansfield, for her life, then in equal shares to the testator’s grandchildren, until the youngest grandchild attained the age of twenty-one years, when the estate should be divided among them. The widow, Wood and Martin were named in the will as executors and trustees. The widow died in August 1869.</p> <p>The second account of the executors came before the Orphans’ Court for adjudication on the 26th of April 1876, and was audited by Dwight, J. In this account the accountants had charged themselves, inter alia, with the rents collected from thirty-six houses, payments of which were made monthly, from September 1st 1869 to March 1st 1875, aggregating $39,837.89. The accountants claimed credits and allowances for the cost of collecting the rents, at the rate of five per cent, on the collections, and which aggregated in the five years $1998.67. Martin was a member of the bar and Wood a collection agent, in the habit of collecting rents, and who had actually collected them in this case. They also claimed an allowance of five per cent, commissions as executors and trustees. The court below disallowed the claim of credit for the cost of collecting the rents, and in lieu thereof increased the accountants’ commissions as executors and trustees from five to six per cent, on the gross amount of the rents, and surcharged them with the difference of $1593.34. This adjudication in the court below was one of the grounds of appeal.</p> <p>The other ground of appeal was that the balance in hand of $4101.25, shown by the account, and which was of the corpus of the estate, was erroneously awarded by the court below to Catharine Mansfield, as income.</p> <p>It appeared at the foot of the account, in the enumeration of the corpus of the estate, that said balance was composed as follows: — •</p> <p>Cash in the Beneficial Saving Fund $2573.96</p> <p>“ “ Western Saving Fund 1368.07</p> <p>“ “ Farmers’ and Mechanics’ Bank 159.43</p> <p>$4101.46</p> <p>The testator had provided, in the codicil to his will, as follows: “It is my will and I order that my executors, as soon as possible consistent with the payment of the several legacies in my .said will contained, set apart and deposit in some good saving fund in the city of Philadelphia the sum of $3000, for the express purpose of repairing any damages that may occur'to my real estate from fire or other casualty, to be so kept and used until the division of my estate as in my said will directed.”</p> <p>The said balance on hand of $4101.46, of which $3000 came from the corpus of the estate, the remainder being accrued interest thereon, was held by the accountants under the clause above quoted.</p> <p>The executors filed exceptions to this adjudication, which were dismissed, when they took this appeal, alleging that the court erred in the surcharge of $1593.54, and in awarding the balance, $4101.46, to the life tenant. The evidence was not brought up with the record, and a portion of the foregoing facts were extracted from the auditor’s report and the opinion of the court below.</p>

<p>Error to the Court of Common Pleas, No. 8, of Philadelphia county: Of January Term 1877, No. 461.</p> <p>Trespass brought by Henry S. and Joseph Louchheim, trading as Louchheim Brothers, against Edgar M. Gregory, United States Marshal, for an illegal seizure of goods. The action was originally brought in the Supreme Court at Nisi Prius. At the trial it appeared that Henry S. Louchheim, individually, and the Louchheim Brothers, had in December 1869, each brought suit against Nathan Kahn, and on the 27th of that month judgments were obtained by the first for $3677.83 and the last for $2675.30 for want of affidavits of defence. Executions issued on these judgments and Kahn’s stock of goods in a store were sold by the sheriff and bought by the plaintiffs for $567.58, who employed a son of Kahn to carry on the business for them. Among the goods sold were some which Kahn had brought in November 1869 from Ohio, where he had had another store. On the 7th of January 1870, two days after the sale, a petition in bankruptcy was filed by other creditors of Kahn, and on the 25th of the same month he was adjudged a bankrupt, and by the direction of these creditors the marshal seized the goods sold at the sheriff’s sale and which still remained in Kahn’s store. He delivered them to the assignee in bankruptcy, who sold them for $1853.70. This action was then brought against the marshal, who having died during the foregoing proceedings, his administrator Henzey, was substituted in his place. At a former trial of this case the court instructed the jury that if the plaintiffs were active in procuring a preference by judgments and executions, knowing Kahn to be insolvent, the preference was in fraud of the bankrupt law, and the sheriff’s sale passed no.title. The verdict and judgment were for the defendant, which this court reversed: see 27 P. F. Smith 305. At the second trial the defendant, among others, submitted the following point:</p> <p>“ That if the jury believe that Nathan Kahn, with a desire to prefer Louchheim Brothers or Henry S. Louchheim, failed to make a defence to plaintiffs’ suit, which by law he was entitled to make, or caused goods to he brought within the reach of the execution, then there was sufficient under the Bankrupt Act to invalidate the whole transaction and the sheriff’s sale, and the verdict must be for the defendant.”</p> <p>The court answered: “ This point is affirmed; with the qualification that the jury must be satisfied from the evidence of such desire and such acts.” Verdict and judgment for defendant and plaintiffs taking this writ, assigned, inter alia, for error the answer to the foregoing point.</p>

<p>Under the 19th section of the Act of 31st of March 1860, in an indictment for forgery under the 169th section of the same act, it is not necessary to. prove an intent to defraud any particular person, but it is sufficient to prove a general intent to defraud.</p>

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1876, No. 282.</p> <p>Assumpsit by A. D. Weld, Jr., and others, against Henry Randall, upon two bills of exchange, drawn by Robert E. Randall, and accepted by the defendant.</p> <p>The plaintiffs filed copies of the bills, and defendant filed an affidavit of defence, which is sufficiently set forth, together with the other material facts, in the opinion of this court.</p>

<p>1. Where a father verbally agrees that his daughter shall reside as a servant in a stranger's family for a certain number of years, he does not thereby surrender his parental control so as to bar his right to recover for her seduction, during her minority, by a son of her employer.</p> <p>2. Where a father has not relinquished his right to his daughter’s services beyond recall, but retains the right to command them, he may maintain an action per quod servitium amisit in case of her seduction.</p>

<p>1. By the Act of April 15th 1834, five per cent, commissions are allowed to tax collectors. The Act of March 24th 1851 gives the collection of taxes in Greenwich township, Berks county, to the lowest bidder, and directs that the difference between the bid and the five per cent, commissions allowed by the Act of 1834 should be paid to the school district of the township. Held, that the practical effect of this act was to reduce the commissions to the amount bid, and that the county can recover the difference on the official bond of the collector appointed under the Act of 1851.</p> <p>2. In a suit on a bond, where a legal and equitable plaintiff are joined, it is not necesssary for the latter to show title to the obligation, unless for the purpose of meeting and answering some defence, which, though good against the legal plaintiff, is not good as against him.</p>

<p>1. A testator provided in his will that O. should be one of his residuary legatees, and directed that her share should be held by his executors to pay the interest to her for life, and after her death bequeathed the principal to K. In a codicil he provided, “I give and bequeath to K. the sum of $500, * * * and what I have heretofore bequeath in my will to K. shall be null and void, and that he shall have not more, as I bequeath in my codicil, the annual interest of K. shall be paid to C., and after her death the principal to 1Í.” By a second codicil §500 additional were bequeathed to It., and it then made the following provision. “ And whereas in my said will and in my codicil I have given and bequeath to C. the annually interest during her natural life, which I do hereby declare that the same shall be void, and no heir in my will and codicil, and shall have nothing out of my estate and be paid the same to It., as before mentioned in my will and codicil.” JffeM, that It. was a residuary legatee.</p> <p>2. A decree of the Orphans’ Court making a partial distribution of the funds of an estate, is conclusive only as to the funds then distributed.</p> <p>3. Guenther’s Appeal, 4 W. N. C. 41, followed.</p>

<p>Appeal from the Court of Common Pleas of Berks county: Of January Term 1878, No. 257.</p> <p>Appeal of Mary Finkbone from the decree of the court confirming the report of the auditor in the assigned estate of Pen-rose Wiley, deceased. Dr. Penrose Wiley made an assignment for the benefit of creditors, on the 2d of September 1874, and died shortly thereafter, on the 19th of April 1875. On the 7th of April 1876, his assignee filed an account of his trust, and before the auditor appointed to audit the same came the appellant, who claimed certain amounts of money left by her with the deceased for safe keeping. She gave in evidence, several papers in support of her claim, among which were the following, which were both written on the same piece of paper:—</p> <p>“ Received of Mary Finkbone at different times since 1862, four hundred and seventy-five dollars — for safe-keeping — which is to be returned to her in such amounts as she may want.</p> <p>$475.00. Leesport, May 15, 1868. ' Penrose Wiley.”</p> <p>“ Received October 11,1869, of Mary Finkbone, thirty dollars, to be kept and returned to her whenever she shall want it.</p> <p>$30.00 Penrose Wiley.”</p> <p>The auditor reported that the first claim for $475, was barred by the Statute of Limitations, and refused to allow it. The appellant filed exceptions to this report, which the court, Sassaman, A. L. J., dismissed when she took this appeal.</p>

<p>A guardian who fraudulently fails to account for the funds of his ward after a settlement of his account, is liable to attachment and is not entitled to be discharged under the insolvent laws until he has been in custody sixty days. But if, while in custody, he petitions for discharge, he should be committed for trial to the Quarter Sessions, and if a true bill is not found before the next session, he is entitled to his discharge.</p>

<p>Error to the Court of Common Pleas of Lehigh county: Of January Term 1878, No. 48.</p> <p>Amicable action in debt brought by the Lehigh Valley Mutual Insurance Company against John Schimpf & Son, to recover an assessment on a premium note. The facts are fully stated in'the opinion qf the court. The case was submitted to the court, under the provisions of the Act of April 22d 1874. In an opinion the court, Longaker, P. J., held that the members of this mutual company giving premium notes were liable to assessments, to pay losses which had occurred to the insured who had policies on the cash premium plan, and that such an assessment was valid and proper, although made by resolution of the board of directors of the company, held more than a month after a general assignment for the benefit of creditors. The court entered a verdict for the plaintiff for $232.25. The defendants filed exceptions, which the court dismissed, and entered judgment on the verdict. The defendants then took this writ alleging, inter alia, that thé court erred in holding as above stated.</p>

<p>Error to the Court of Common Pleas of Lehigh county: Of January Term 1878, No. 229.</p> <p>Debt by the Commonwealth of Pennsylvania to the use of Peter Gross et al., assignees of the Dimes Saving Fund of Slatington, against Robert McDowell, upon the bond of the latter, as a trustee of said institution, ^conditioned for the faithful custody and appropriation of its funds.</p> <p>The Dimes Saving Fund was duly incorporated in 1867. Section 2d of the charter provides: That the business of the said corporation shall be to receive on deposit, from time to time, such sums of money, not less than ten cents, as may be offered by tradesmen, clerks, mechanics, laborers, servants, minors, married women, and others, and to invest the same in the stocks of this Commonwealth, or of the United States, or in stocks or bonds of any city or borough, authorized to be issued by any Act of the Legislature of this Commonwealth, or in other stocks, or in bonds and mortgages, promissory notes, with approved endorsements and other approved and valid securities. * * * *</p> <p>In 1873 the trustees, of which defendant was one, invested $21,000 of the deposits in six per cent, interest-bearing certificates of deposit of Jay Cooke & Co., and $12,000 of like certificates of William Painter & Co. These firms having failed, the savings fund became insolvent and appointed assignees, Suit was brought upon defendant’s bond for the investment and appropriation of the deposits of the bank contrary to the terms of the charter. Upon the trial of the case, plaintiffs maintained that the business of the bank and character of the deposits were determined by the charter ; that an investment of $37,000 in Philadelphia, in interest-bearing certificates of deposit, was not necessary to carry on the business permitted, nor such investment of the deposits as directed by the charter. Defendant contended that government securities and other charter-prescribed investments were not available, ready assets for the bank; that the large investment of this character was necessary for the business of the bank, and that it was an investment in accordance with the charter.</p> <p>The court directed a verdict in favor of the plaintiff, reserving the question whether or not the whole or any portion of the money in the hands of Painter & Co., or with Jay Cooke & Co., was authorized by the charter of the bank, and whether or not the bond of defendant is legal and valid.</p> <p>The court, subsequently, was of the opinion that the whole of the money with Painter & Co. and Jay Cooke & Co., was authorized by the charter, and that the bond was legal and valid, and entered judgment on the question reserved in favor of defendant, non obstante veredicto. Plaintiff excepted and assigned for error the reserving of the question of law and fact, and the entry of judgment non obstante veredicto.</p>

<p>The power of a married woman over property settled to her separate use, cannot exceed the limits prescribed in the deed of settlement, and although the power to sell includes a power to mortgage, if the deed limits the power to mortgage, a mortgage which exceeds that limit is void. While-such a mortgage is invalid, if it be found, however, that it was given for a loan to release the lien of another mortgage, which was made in pursuance of the power in the deed of settlement, and that part of the money so raised was used for that purpose, it will be good, pro tanto.</p>

<p>Appeal from the Orphans’ Court of Berks county: Of January Term 1877, No. 10.</p> <p>This appeal was taken by Matilda Urich and her husband from the decree of the court dismissing their petition to be made parties to proceedings for the partition of certain real estate, wherein the petitioners claimed dower in the right of the said Matilda Urich. The latter was the widow of John Stoudt, whose father, Jacob Stoudt, died in 1853, leaving a will which contained, among others, the following provisions :—</p> <p>“I give and bequeath unto my son, John Stoudt, and to his heirs, all my large farm where I now live, situate * * * containing three hundred acres, more or less, together with all the buildings and improvements and grain seeded out, and grass and hay and straw and manure, and all timber and posts and rails, together with all the farming stock and utensils belong to the farm, unto the said John Stoudt and to his heirs.</p> <p>“ Item.. I give and bequeath unto my daughter Catharine, wife of Daniel Reeser, and unto-her heirs, all that certain farm or tract of land situate * * * containing about two hundred and ten acres, more or less, together with all grain seeded out on the premises, and with all buildings and improvements ; further I give and bequeath unto my aforesaid daughter Catharine and to her heirs, a certain tract of land situate * * * containing fifteen acres, twelve perches, more or less, out of which two aforesaid described tracts of land, I order that the sum of four thousand three hundred and fifty dollars be paid out in one year after my decease, as I shall hereinafter direct by my said daughter Catharine, wife of Daniel Reeser, unto her other sisters, namely, Sarah, Polly and Harriet, in such sums as stated — (all grass, hay and straw is to go with and belong to the aforesaid land.) f]</p> <p>“ Item. I give and bequeath unto my daughter, Sarah Stoudt, and to her heirs, all that certain farm and tract of land situate * * * containing in the whole about one hundred and thirty-seven acres of land, together with all the grain seeded out, and all hay, straw and manure, and with all buildings and improvements, and timber, wood and posts, and rails on the premises.</p> <p>“ Item. I give and bequeath unto my daughter Polly, wife of John Zaeharias, and to her heirs, a, certain farm and tract of land situate * * * containing one hundred and ten acres and one hundred and forty perches, more or less, with all buildings, improvements, and grain seeded out, and with all wood, timber, rails and posts on the premises. Also, I bequeath unto my said daughter Polly, and to her heirs, a certain tract of woodland, situate * * *.</p> <p>“Item. I give and bequeath unto my daughter, Harriet Stoudt and to her heirs, a certain farm and tract of land, situate * * * containing one hundred and eighteen acres, more or less, together with all the buildings and improvements, and grain seeded out, and all hay, straw and manure on the premises, with all timber, posts and rails.</p> <p>“Item. I order and direct, that my daughter Catharine, wife of Daniel Reeser, shall pay out, in one year after my decease, out of her farm and land aforesaid, the sum of nine hundred and fifty dollars unto my daughter Sarah Stoudt.</p> <p>“Item. I order and direct, that my daughter Catharine, wife of Daniel Reeser, shall pay out unto my daughter Polly, wife of John Zaeharias, Jr., in one year after my decease, out of the farm of said Catharine, the sum of twenty-four hundred and fifty dollars.</p> <p>“ Item. I order and direct, that my daughter Catharine, wife of Daniel Reeser, shall pay out, in one year after my decease, out of her farm and land aforesaid, the sum of nine hundred and fifty dollars unto my daughter Harriet Stoudt.</p> <p>“Item. I give and bequeath the sum of nine hundred and nine dollars unto my daughter Polly, wife of John Zaeharias, to be paid out unto her in one year after my decease, by my executors hereinafter named, out of my personal property, so as to enable her, my said daughter, to settle for the dower and lien, which is on the tract of land bequeathed unto her.</p> <p>“Item. I herewith make known and declare it as my will that none of my aforesaid children shall have a right to sell or assign their land or property to them bequeathed as aforesaid, neither shall they have a right to encumber it with debts or liens, but the lands shall remain free for their children or heirs, and they, my said children, shall have the use, income and profit of the said lands and farms during their lifetime.”</p> <p>“Item. It is my will and do direct, that all my personal property, consisting of bonds and notes, book account and stocks, and whatever kind of personal property I may own at the time of my decease, shall be equally divided among all my children, to wit: John, Catharine, Sarah, Polly and Harriet, first having paid out unto my said daughter Polly aforesaid, the sum of nine hundred and nine dollars — and also the further sum of one thousand dollars to be paid out unto my daughter Sarah, for extra services to me rendered • — and besides I wish my executors to settle off all my just debts and funeral expenses out of the aforesaid personal property before an equal distribution takes place.</p> <p>“Item. Whereas, I have ordained in this, my will, that none of my children shall have a right to sell nor encumber nor involve any of the real estate to them bequeathed, but I do hereby give either of my aforesaid children power, authority and the right to make a will and testament to take effect after their decease, so that either of them, to wit: John, Catharine, Sarah, Polly and Harriet may and shall have privilege to dispose off their several legacies by will as aforesaid, but not otherwise.”</p> <p>John Stoudt died intestate in 1870, leaving five children and a widow, the appellant, Matilda Urich, who intermarried with Daniel Urich. One of the children of John Stoudt, in 1876, petitioned the Orphans’ Court for an inquest and partition of the real estate devised to his father in the aforesaid will, in which proceeding the other children of said John Stoudt were made parties. Before partition was made the appellants intervened and asked to be made parties, claiming that Matilda Urich was entitled to her dower in said land.</p> <p>The court, Sassaman, A. L. J., in an opinion, said: “As this will was considered by this court in the case off Matilda Stoudt v. Samuel Merkel, and we then held that under it, John Stoudt, the husband of the said Matilda, had but a life-estate in the real estate which is now the subject of partition, which construction was subsequently affirmed by the Supreme Court (see Urich v. Merkel, 2 W. N. O. 550), we must refuse the prayer of the petitioners, and dismiss their petition.”</p> <p>From this decree this appeal was taken.</p>

<p>1. The provisions of.the new constitution and the Act of May 19th 1874, regulating contested elections, modify, but do not repeal, the provisions of the Act of July 2d 1839, relating to the same subject.</p> <p>2. The governor has no authority to issue a commission to a prothonotary pending a contest for that office.</p> <p>3. For granting commissions to the prothonotary and other county officers, there is sufficient warrant in the Act of July 2d 1839, which, for this purpose, the new constitution and the legislation under it have left unimpaired.</p> <p>4. To repeal a statute by implication there must be a repugnancy between the provisions of the new law and the old, so positive as to be irreconcilable.</p> <p>5. Where a late statute is absolutely repugnant to a former one only in part, it repeals the former one only so far as the repugnancy extends and leaves all the remainder in force.</p>

<p>1. The invasion of an established right will in general per se constitute an injury for which damages are recoverable, for in all civil acts the intent of the actor is less regarded than the consequences to the party suffering. However laudable industry may be, its managers are still subject to the rule that their property cannot be so used as to inflict injury on the property of others.</p> <p>2. To render a particular case an exception to the general principles controlling the exercise of dominion over property by its proprietor, it must be ascertained to be exceptional in its surroundings or its facts. Except where it is qualified by the existence of peculiar conditions, the duty of the owner of property is defined by the maxim “ Sin utere tuo ut alienum, non loedas.”</p> <p>3. S. purchased a tract of land in the coal regions, upon which he erected a handsome residence. One of the principal inducements to the purchase was that' a stream of pure mountain water ran through the tract, and a number of valuable improvements were made in order that the residence and grounds might be supplied with water for culinary, bathing and other purposes. Shortly after thése improvements were completed a mine was opened by defendant on the stx-eam about two miles above the land of S., the water from which when pumped or flowing naturally therefrom ran into the stream and so polluted it as to render the water unfit for any of the uses to which S. had adapted it. Upon the above facts the court below entered a nonsuit, on the ground that in the absence of negligence or malice this was damnum absque injuria. Held,, that S. had a x'ight of action and the case should have been submitted to a jury.</p> <p>4. The exigencies, however-, of the great industrial interests must be kept standing in view; the properties of large and useful interests- should not be hampered or hindered for fx-ivolous or tx-ifling causes. For slight inconveniences or occasional annoyances, they ought not to be held responsible, and in dealing with such complaints, juries should be held with a steady hand.</p>

<p>Appeal from the Court of Common Pleas of Luzerne county: Of January Term 1878, No. 232.</p> <p>Appeal from the decree of the court, Harding, P. J., confirming the report of the auditor appointed to distribute the fund arising ftom a sheriff’s sale of the real estate of Jacob Adams. The facts are sufficiently stated in the opinion of this court.</p>

<p>Appeal from the Court of Common Pleas of Luzerne county: Of January Term 1878, No. 29.</p> <p>Appeal by E. B. Sturges from the decree of the court confirming the report of the auditor appointed to distribute the proceeds of the sheriff’s sale of the personal property of E. R. Mills. From the evidence before the auditor it appeared; That on the 12th of May 1876, J. P. W. Riley sued out a fieri facias, returnable June 5th, on a judgment for $1000, held by him against E. R. Mills. Before an actual levy was made on May 15th, the court granted a rule to show cause why this fieri facias should not be stayed, the rule being made returnable in September, the proceedings on said writ of fieri facias meantime to be staid and the “ sheriff to be secured in his levy, if made.” The sheriff’s return to the fieri facias, was “ stayed by order of court.” In September the rule to show cause was discharged. On the 81st of May, A. C. Nettleton sued out a fieri facias, on a judgment for $776.53, held by him against Mills and one Stone, and under this writ the personal property of Mills was sold on the 11th of July for $761.88. At this sale notice was given that the proceeds would be claimed under the Riley writ, and it was agreed that the money should remain in the hands of the sheriff and await the order of the court. The auditor appointed to distribute the fund awarded the same to Nettleton, holding that the Riley writ had expired before the sale, on its being returned without a levy. Riley filed excéptions to this report, which the court, Handley, J., dismissed, and confirmed the report, when this appeal was taken by Sturges, to whom the Riley judgment had been assigned, and who alleged that the court erred in confirming the report.</p>

225. Indictment of Dennis Morrisey, for embezzling school funds, as treasurer and director of the school district of Lackawanna. The facts are sufficiently set forth in the opinion of this court.

42. Trespass on the case by Henry Heeman, by his next friend, Hiram Heeman, against the Towanda Coal Company, to recover damages for an injury to plaintiff, which it was alleged was caused by the negligence of defendants. Plea: “Not guilty.” The defendants are the lessees of a railroad which runs into the town of Towanda. While one of their coal trains was stopping at said station, three small boys, among whom was the plaintiff, climbed up on the cars.

Common Pleas of Luzerne county: Of July Term 1875, No. 78. Debt by John-W. Green and wife, in right of said wife, to recover a penalty of $500 for the alleged exclusion of Mrs. Green from the cars of defendants. The suit was brought under the provision of the Act of March 22d 1867, Pamph.

<p>1. The penalty prescribed by the Act of March 22d 1867, relating to the exclusion of colored persons from the cars of railroad companies, is given by way of punishment to the offender rather than by way of compensation to the party aggrieved, and where, therefore, several persons are aggrieved by the commission of a single offence, a recovery by one is a bar to recovery by the rest.</p> <p>2. G. and his wife, who were colored persons, were excluded from the car of a railroad company at the same time and by the same employee. Held, that the exclusion of the two was but a single offence, and a recovery having been had by G. and his wife in the right of the wife, G. could not recover thereafter in his own right.</p> <p>3. Hill v. Williams, 14 S. & R. 287, followed.</p>

<p>1. In order that workmen should' be fellow-servants within the meaning of the rule that a master is not responsible to a servant for an injury caused by his fellow-servant, it is not necessary that the workman causing and the workman sustaining-the injury should both be engaged in the same particular work. It is sufficient if they are in the employment of the same master, eugaged in the same common work, and performing duties and services for the same general purposes. And the rule is the same, although the one injured may be an inferior in grade and subject to the control and direction of the superior whose act caused, the injury, providing they were both co-operating to effect the same common object.</p> <p>2. A “mining boss” and a “driver boss,” are such fellow-servants, and where the death of the latter is caused by the negligence of the former, the owner of the mine is not responsible.</p> <p>3. To prove contributory negligence, it is competent to show that the deceased was warned to avoid the place where he was killed, and that he himself had conveyed this warning to others.</p> <p>4. Mullan v. Steamship Co., 25 P. T. Smith 25, explained.</p>

<p>Error to the Court of Common Pleas of Schuylkill county: Of January Term 1878, No. 176, 179.</p> <p>These were petitions for writs of mandamus. The petitions set forth that by an Act of Assembly, entitled “ An act for the making of a state road in the counties of Schuylkill and Dauphin, approved the 7th of April 1869,” Pamph. L. 738; commissioners were appointed to view and lay out a state road, from a point in Porter township, Schuylkill county, to Williamstown, in Dauphin county.</p> <p>By the 3d section of said act it was provided that the said state road should be opened and constructed by the supervisors of the said townships, at the expense of the individuals or companies owning or occupying lands through which the said road shall be laid out, or continuous or adjacent thereto ; and this to embrace also in said Porter township all the lands north of the road, up to the north line of said township ; provided that no such individual or company shall be compelled to pay or contribute for that purpose, any further quota or other sum, than such road taxes as are or may, be assessed, at the rate and in common with the lands and property of others in the respective township, upon the lands aforesaid or the property thereon.</p> <p>That by a supplement to said Act of Assembly, approved the 27th of February 1872, Pamph. L. 171, the aforesaid commissioners were authorized and directed, in the place of the respective township supervisors, to take charge of and carry through the opening and construction of the said state road.</p> <p>That by the said Acts of Assembly a certain portion of the road taxes, levied and assessed upon lands therein described, was set apart and appropriated to the payment of the expenses incurred in opening said road, and to the payment of the certificates authorized to be issued by said Acts of Assembly to the owners of lands advancing money to defray the expenses of opening the said state road. The collector of road taxes was also directed to credit the taxes due upon any of said lands, upon said certificates, when so requested by the owner of said lands.</p> <p>That the commissioners accepted the said appointment under the aforesaid act; that immediately thereafter they entered upon the discharge of their duties as such commissioners, and viewed and iaid out said road as provided by said act.</p> <p>That for the purpose of opening and constructing said road and paying the contractors, the commissioners borrowed a large amount of money upon certificates, or obtained an advance of large amounts of money for which the commissioners gave certificates, according to the second section of the said supplemental act, and that a large number of said certificates, amounting to $25,000 or thereabouts, are outstanding and unpaid, and that such certificates to a large amount are held and owned by Charlemagne Tower.</p> <p>It is further averred, in the petition of Charlemagne Tower, in the action against David P. Thompson, that the said Thompson, as the collector of road taxes and treasurer of the said township of Porter, had collected in cash a large amount of taxes, which is applicable under the Act of Assembly to the payment of said certificates, and which Avas collected by said Thompson from the taxes levied and paid to him from and upon the lands and other property which were appropriated by the said Act of Assembly for the making and opening of said state road, and which it was his duty to pay over to the said Tower upon his certificates aforesaid. That after demand made, Thompson refused to pay the said money over to the holder of said certificates as aforesaid.</p> <p>In the petition of Tower in the action against Cyrus Moore, it is averred that the said Moore, as the treasurer of Schuylkill county, had collected in cash a large amount of taxes, which is applicable under the Aet of Assembly to the payment of said certificates, and which was collected by said Moore from taxes levied and paid to him from and upon the lands and other property, which Avere appropriated by the said Act of Assembly for the making and opening of said state road, and which it was his duty to pay over to the said Tower upon his certificate as aforesaid. That after demand made upon him Moore refused to pay the said money over to the holder of said certificate.</p> <p>In the petition of The Philadelphia & Reading Coal and Iron Company against Henry RoAve, it is averred that the said company being liable for certain road taxes in said township of Porter, which were applicable under said Act of Assembly to the payment of the said certificates, and being the holder of one of said certificates, did present the said certificate to Henry Rowe, collector of road taxes for Porter township, and demanded that he the said RoAve credit said taxes on said certificate, as required by the said Acts of Assembly, but that the said RoAve refused to receive the said certificate in payment of said taxes or to credit the taxes thereon.</p> <p>In the petition of The Philadelphia and Reading Coal and Iron Company against David P. Thompson, the same averment is made as to said Thompson as is above set forth in relation to Rowe.</p> <p>The petitioners, at the relation of Tower, prayed for a mandamus to compel payment and at the relation of the Reading Railroad to compel the credit of the taxes to be given.</p> <p>Writs of alternative mandamus issued and the respondents filed their several answers, wherei.n they averred that the relators were not entitled to writs of mandamus, because they had an adequate remedy at law; that for reasons stated the Acts of Assembly, under which these claims were made are unconstitutional, and that the third section of the Act of 1869, and the entire Act of 1872, were repealed by the Act of June 7th 1874, Pamph. L. 306.</p> <p>To these answers the relators severally demurred, and the court overruled the demurrers and refused the petitions. The relators then took these writs, assigning this action for error.</p>

<p>1. A judgment confessed by a married woman can he enforced in the single instance where, when a conveyance is made to her, it forms part of an agreement under which she takes land, subject to the condition that she shall pay its priees</p> <p>2. "Where a married woman declares that she has no defence to a judgment, she is not thereby estopped from asserting its invalidity on the ground of her coverture. Glidden v. Strupler, 2 P. F. Smith 400, followed.</p> <p>3. "Where land is sold under a mortgage containing a waiver of exemption, the mortgagor is, after notice given, entitled to his exemption out of the surplus as against subsequent judgment-creditors. Hill v. Johnston & Parker 5 Casey 362, followed.</p> <p>4. A judgment confessed by a married woman is void, and the discharge by the court of a rule to open such a judgment where the evidence is wholly inadequate to support such action, does not fix upon the record of the judgment the character of res adjudicata, so as to exclude her from participation in a fund.</p>

<p>Error to the Court of Common Pleas of Wyoming county: Of January Term 1878, No. 160.</p> <p>Scire facias sur mechanic’s claim filed by C. P. Miller, assignee of L. P. Loomis, against B. R. Bedford.</p> <p>The claim filed set forth: “ The amount claimed to be due is seven hundred and eighty-six dollars and thirty-five cents, for work and labor, sand, lime, brick and materials furnished in and about the erection of said building by L. P. Loomis, within six months past; the work and labor having been done and the -materials furnished in pursuance of a contract for the erection of said building entered into between B. R. Bedford and said L. P. Loomis, dated June 27th 1871, and supplement thereto, dated September 11th 1871, as occasion required, commencing on the 10th day of October 1871, and continuing until the 10th day November 1871, when the last work was done and the contract performed on the part of said L. P. Loomis.”</p> <p>The defendant entered a rule to show cause why the claim should not be stricken from the record, which the court discharged. The defendant then filed a plea of “Nil debit.” At the trial the agreement of June 27th 1871, was put in evidence by plaintiff, wherein it was stipulated that Loomis would furnish the brick, lime, sand and other materials necessary, and in a good and workmanlike manner erect the outside walls for a brick building, in accordance with certain plans,, and that in consideration therefor Bedford was to pay Loomis $13.50 per thousand bricks “at measurement, and to be measured after said walls and work were completed.” By the supplementary contract of September 11th 1871, certain additional work was to be done by Loomis, for which he was to receive an additional sum of fifty cents per thousand bricks. A computation showed that the number of bricks actually used at the contract price made the amount claimed. It was also shown that the claim was assigned to Miller. The plaintiff having closed his evidence, the defendant moved for a nonsuit, which the court, Ingham, P. J., refused, saying:—</p> <p>“ This motion is overruled for the purpose of taking the verdict of the jury on the evidence, the court reserving the legal points involved.”</p> <p>The verdict was for the plaintiff. The court subsequently entered judgment for the defendant non obstante veredicto, in an opinion, inter alia, saying :—</p> <p>“ The plaintiff having closed his evidence, the defendant, by his counsel, moved for a compulsory nonsuit. This motion we overruled for the purpose of submitting to the jury the facts proved in the case, reserving the points: whether the claim filed in the case was sufficient to create a lien under the mechanics’ lien laws, and whether the plaintiff has given such evidence as is in law sufficient to maintain the action, or sufficient evidence to submit to the jury. The right of a mechanic or material man to a lien upon a building can only be asserted in the manner provided by the statute. The statute, among other things, provides that every claim must set forth ‘the amount or sum claimed to be due, and the nature or kind of work done, or the kind and amount of materials furnished, and the time when the materials were furnished, or the work done, as the case may be.’ The claim filed by Loomis does not state ‘ the nature or kind of the work done, nor the amount of material furnished.’ On its face, therefore, it is defective as a lien unless the omission to comply with the form of the statute is supplied by the fact that the work and labor were done and the materials furnished in pursuance of an agreement for a stipulated sum. The claim sets forth that the work and labor were done and the material furnished in pursuance of a contract for the erection of a building. The amount claimed to be due is $786.35. On the ground that this claim appeared to be founded on a special contract for a round sum of money (and not having the contract before us), we overruled the defendant’s motion to strike off the lien and compelled him to plead to the scire facias. When the contract was offered it appeared that the value of the work could only be computed by the measurement of the work and a computation of the number of the brick; that it was nob for a round sum of money, but provided for payment for the work of laying the brick at a fixed price per thousand. Construing the allegation in the claim as we were compelled to construe it in order to sustain the validity of the lien, and there appears a clear variance between the evidence offered and the claim filed, the allegata and the probata do not correspond. For these reasons we find that judgment cannot be entered for plaintiff on the verdict, and judgment-must be entered against him non obstante veredicto.”</p> <p>This action was assigned for error by Miller, who took this writ.</p>

110. Appeal of A. K. Walter from the decree of the court making absolute a rule to shotv cause Avhy a judgment held by said Walter against Jacob Breisch should not be opened, and the latter let into a defence on the ground of usury. It appeared that in 1871, Walter loaned Breisch $2800, to secure the payment of which the latter gave him his judgment note, upon which judgment was entered on January 4th 1871.

<p>. Error to the Court of Common Pleas of Schuylkill county: Of January Term, 1878. No. 267.</p> <p>Assumpsit by Patrick Ryan against the township of East Union.</p> <p>The declaration contained the common counts, together Avith a special count, Avhich averred that under the provisions of the Act of April 7th Í873, commissioners were appointed to lay out a state road, to let the same to the lowest bidder, and to charge the expense thereof to the several toAvnships through Avhich the road Avas located; that said commissioners Avere authorized to draAv warrants in favor of the contractors on the treasurer of said townships; that said commissioners laid out the road through East Union toAvnship, and let out the making of the same through said toAvnship to Andrew Comrey.'Avho duly complied with his contract; that said commissioners issued their warrant in his favor for the work so don§; and that said Comrey, for a valuable consideration, assigned said warrant to plaintiff, who had made demand of payment of the township treasurer and had been refused.</p> <p>The following are, in substance, the material provisions of the Act of 1878. It was made the duty of the commissioners under the act to subscribe an oath to perform their duty with fidelity; to carefully view the ground on which the road shall pass, and lay out and make the same on the route agreed upon by them for the road; to have accurate drafts made of the location of the road, noting the courses and distances as they occur, with such other matter as may serve for explanation; to deposit a copy of the draft in the office of the clerk of Quarter Sessions of the several counties through which the road shall pass; the commissioners, within thirty days of the filing of the drafts, to give public notice by handbills posted along the line of the road and other places contiguous thereto, that on a certain day and place they will receive proposals for the opening and making of the road. The proposals to embrace either the whole pr certain portions of the road; the commissioners, at the time so appointed, to open the proposals and award the contract for opening the road, in whole or in portions, to the lowest and best bidder; the contractors, within five days, to give bonds with sureties for the performance of the duties enjoined under the contract and specifications. If the lowest bidder fails to file their bonds, the contract to be awarded to the next highest bidder that will conform to the requirements of the law; the commissioners are “ authorized and empowered to draw wai’rants in favor of the contractors on the treasurers of the several townships through which the road shall pass, for such sum as may be necessary to build or construct so much of said road as the relative length in such township may be to the entire length thereof.” And the several townships are authorized and empowered to levy and collect a special tax, not exceeding two mills in any one year, on the assessed valuation of such township. Said tax shall be levied and collected at the same time and in like manner as other county and township rates and levies are made and collected. Said tax so collected, shall be applied only to the payment of the warrants hereinbefore mentioned. The commissioners are “ authorized and required to examine the said road as the work progresses, and draw warrants in payment thereof in proportion to the amount of work performed. And no warrant shall be drawn until the work shall be approved by the commissioners.” If any contractor or contractors should fail to do their work in a good and workmanlike manner, the commissioners are authorized to relet such work at the expense of the original contractor; the road to be commenced within thirty days after the award of the contract, and completed within one year, unless, in the opinion of the commissioners, it may be prudent and necessary to extend the time to two years. A majority of the commissioners are authorized to carry out the intentions of the act.</p> <p>At the trial the plaintiff gave in evidence the foregoing Act of Assembly, and then called Comrey, who testified that he was the contractor for that portion of the road in East Union township, and identified two warrants which he stated were issued to him by the commissioners named in the Act of Assembly, and which he had endorsed to plaintiff. These warrants, which were as follows, were then offered in evidence :</p> <p>“No. 67. Mahanoy City, June 1, 1874.</p> <p>“ To Henry Miller, Treasurer of the Township of East Union, in the County of Schuylkill, State of Pennsylvania.</p> <p>“ Pay to Andrew Comrey, or bearer, $200, and charge to the account of the. State Road in the Counties of Schuylkill and Luzerne, authorized by Act of Assembly, approved April 7, 1873.</p> <p>$200. William H. Barlow,</p> <p>Jno. R. Porter,</p> <p>Philip IIuntzinger,</p> <p>Commissioners.”</p> <p>“No. 68. Mahanoy City, June 1, 1874.</p> <p>“ To Henry Miller, Treasurer of the Township of East Union, in the County of Schuylkill, State of Pennsylvania.</p> <p>“ Pay to Andrew Comrey, or bearer, $500, and charge to the account of the State Road in the counties of Schuylkill and Luzerne, authorized by Act of Assembly, approved April 7, 1873.</p> <p>$500. William II. Barlow,</p> <p>Jno. R. Porter,</p> <p>Philip IIuntzinger,</p> <p>Commissioners.”</p> <p>The defendant objected to these warrants, because—</p> <p>1st. The orders were issued to Andrew Comrey, not the plaintiff in this action, and are irrelevant in this issue.</p> <p>2d. The condition precedent to the right to issue orders under the Act of Assembly of 7th October 1873, not having been shown, nor proposed, the evidence is incompetent for the purpose proposed, and is irrelevant and immaterial.</p> <p>3d. If the orders were properly issued, the act provides a mode for the payment from a special fund to be raised for that purpose, and the remedy., if any, for the payment of orders properly issued by persons duly authorized and qualified to issue them, is by mandamus and not by suit.</p> <p>The defendant offered no evidence, and moved for a nonsuit, which the court refused, and directed a verdict for plaintiff for the amount of the warrants without interest. The defendant took this writ, assigning, inter alia, for error, the admission of the warrants in evidence.</p>

<p>Error to the Court of Common Pleas of Wyoming county: Of January Term 1878, No. 218.</p> <p>Assumpsit by the Dodge and Stevenson Manufacturing Company against James Kelley, to recover the price of a mowing-machine.</p> <p>The plaintiff filed a statement, wherein he charged the defendant with “one No. 2 Ohio and Buckeye Mower, $110,” and filed an affidavit “ that his claim and demand exceeded $100.” The verdict at the trial was for $4’8.08 for plaintiff, whereupon the defendant took a rule to show cause why judgment should not be entered without costs, on the ground that the affidavit did not comply with the requirements of section 26 of the Act of March 20th 1810, inasmuch as the affidavit did not aver that “ the debt due or damages sustained” exceeded $100, but simply that his claim exceeded that amount. The court, Ingham, P. J., discharged the rule and entered judgment for plaintiff with costs. The defendants assigned this action for error.</p>

<p>• 1. Where a railroad company has the right of way over mining lands, and covenants with the owner thereof that upon notice it will change its location, or permit the coal underneath the way to he mined, a tenant of such owner — the terms of whose lease give him the right to mine all the coal in the land demised — may sue in the name of the landlord for breach of such covenant.</p> <p>2. The removal of the railroad to another location on the same land in such a case, was'merely contractual, and involved no exercise of the power of eminent domain, and is not within the decisions holding that the power of location when once exercised, is exhausted, and the railroad was therefore liable in damages for the breach of its covenant.</p> <p>3. The measure of damages under such circumstances was the value of the coal which was left standing, so as not to let down the surface, and a verdict for these damages in solido, may be apportioned by the jury between the landlord and the tenant.</p> <p>4. The tenant under the terms of such a lease does not part with his right to damages for the breach of covenant on the part of the railroad, because he had sold “ all of his right, title and interest” in the colliery.</p> <p>5. The fact that the landlord, after suit commenced by the tenant, released all his right under his contract with the railroad company, would not affect the right of the tenant, but would reduce that portion < f the verdict which in the apportionment by the jury was allowed to the landlord.</p>

<p>Appeal from the Court of Common Pleas of Delaware county: Of January Term 1876, No. 111.</p> <p>Appeal of B. C. BaldAvin from the decree of the court, sustaining the exceptions to the report of the auditor appointed to distribute certain funds in the hands of a garnishee.</p> <p>On April 23d 1875, Richard L. Jones having two judgments against Samuel O. Bonsall, issued íavo Ayrits of attachment-execution upon them to attach six shares of stock in “ The Upper Darby Building and Loan Association.” These writs Avere placed in the hands of the sheriff at 8.25 and 8.30 P. M. respectively, upon the same day. On the same day Barldey C. Baldwin, having a judgment against Bonsall, also issued a writ of attachment-execution to-attach the same stock, which was placed in the hands of the sheriff, as appears from his endorsement thereon, at 5.45 p. M. of the same day. To these writs the sheriff returned that he served them all on the garnishee on the 24th of April 1875: the first two at 12.30 and the last one at 12.35 P. m. Interrogatories having been filed in each case, the garnishee answered, admitting the sum of $633.18 in its hands subject to the attachments.</p> <p>An auditor was appointed by agreement of the parties, who reported a distribution of the fund pro rata among the attachments. Exceptions were filed to his report, and the court below, after argument, sustained the exceptions and awarded the whole fund to the first two attachments, and decreed that judgment should be entered against the garnishee accordingly. From this decree and judgment Baldwin appealed.</p>

<p>1. The rule that a tradesman has a lien for work done on goods deposited with him for manufacture, is not waived by a special agreement merely for the payment of a fixed sum for the labor done on the goods.</p> <p>2. Replevin cannot be maintained against a tradesman for goods left with him for manufacture, until his charges for work done on the goods have been first paid or tendered.</p> <p>3. Macky v. Dillinger, 23 P. B. Smith 85, distinguished.</p> <p>4. In replevin, under the plea of property, the defendant is at liberty to show either a general or special property in himself, and he is not bound to give notice to the plaintiff that he claims under any special title. The plea of property imposes on the plaintiff the necessity of establishing his title and the right of exclusive possession.</p> <p>5. Where parties without objection or remonstrance, have gone to trial on the merits of a cause, this court will refuse to reverse, although the pleadings made no issue for the jury.</p> <p>6. Gillespie v. Goddard, 1 Pittsburgh Rep. 306, discussed, and its authority questioned.</p>

<p>1. H. sold a farm to C. foi-’§10,000, of which §2500 were to remain on mortgage. The balance of the consideration consisted of tw.o judgments, one for §4500, which was to be entered up, and another of §3000, which was not to be entered. In this latter, D., who was a responsible party, was joined with C. H. transferred the §4500 judgment to B., and agreed to become security for its payment. At the instance of II., O. insured the barn on the premises and assigned the policy to II. as “collateral security for the payment of money loaned on the property therein insured.” H. paid the premiums on the policy. The barn was destroyed by fire, and the proceeds of the policy having been paid to II., O. claimed that he should apply them to the §3000 judgment. Held, that the assignment of the policy was intended as a security for the §4500 judgment; that the liability of II. to B. was an insurable interest, and that the cla-im of O. could not be sustained.</p> <p>2. A written instrument under seal, and free from ambiguity, cannot be affected by a conversation of the parties thereto, which occurred nearly two months prior to its execution. ■</p>

<p>By certain Acts of Assembly, the members of council of the South Ward, of the city of Chester were authorized to erect waterworks and to lay water-pipes, the cost thereof to be borne by the property-owners, in front of whose properties the pipes were laid, and who applied for the use of the water. The option was given the property-holder to pay for said pipe, at a fixod price, or to pay the interest on the cost of the pipe so laid. The owner of a corner lot applied for the use of the water, and paid for the pipe laid along one front of his property. Subsequently, pipe was laid along the other front without his consent, and the water from which was in no way used on the premises. Suit was brought by the councilmen for the interest on the cost of the pipe thus laid. Meld, that the right to maintain this action depended upon contract, and as the defendant had only applied for the water on one front, this contract could not be made to include the other front, and he was not liable.</p>

<p>Error to the Court of Common Pleas of Chester county: Of July Term 1875, No. 48.</p> <p>Assumpsit by H. B. Burn and J. R. Hinkson, administrators of Eli W. Hinkson deceased, against Maris T. Clark, on the following note:—</p> <p>“$400 Highland, March 30th 1867.</p> <p>One year after date we promise to pay 'to Eli W. Hinkson, or order, the sum of four hundred dollars, with interest, without defalcation, for value received. Ferdinand E. Groce,</p> <p>Marts T. Clark.”</p> <p>With the following endorsements thereon, viz :</p> <p>“ Rec’d March 25,’68, on the within one year’s interest.</p> <p>Eli W. Hinkson.”</p> <p>“ Rec’d March 16,’69, on the within one year’s interest.</p> <p>Eli W. Hinkson.”</p> <p>“ Rec’d on the-within one year’s interest.</p> <p>Eli W. Hinkson.”</p> <p>“Rec’d January 11,’.71, on the within one year’s interest.</p> <p>Eli W. Hinkson.”</p> <p>“ Rec’d April 9,’72, on the within interest for one year</p> <p>Eli W. Hinkson.”</p> <p>“ Rec’d Sept. 1, 1872, on the within one hundred and two fifty. $102.50. E. W. Hinkson.”</p> <p>“ Ree’d March 81,’73, on the within eighteen dollars.</p> <p>$18. E. W. Hinkson.”</p> <p>Hinkson died in June 1873, and this suit was brought November 4th 1874. Clark caused an appearance to be entered for him, and filed an affidavit of defence, setting forth that he was only surety on the note, that no payments thereon had ever been made by him or with his knowledge; that more than six years had elapsed since the note became due, and that he relied upon' and pleaded the Statute of Limitations. No appearance was entered for Groce, and he made no defence.</p> <p>Issue was joined with Clark alone, and the case was placed upon the trial list. It appearing that Groce was the party sued with Clark, before proceeding to trial, on motion of the plaintiff’s counsel, judgment by default was entered against him. A jury was * then empannelled and sworn to try the issue between the plaintiffs and Clark.</p> <p>At the trial, the foregoing note was given in evidence. The defendant offered in evidence, the following receipts, which were in the handwriting of E. W. Hinkson.</p> <p>“April 9th 1872. Received of F. H. Groce twenty-four dollars, interest on a promissory note. Eli W. Hinkson.”</p> <p>“March 31st 1873. Received of F. H. Groce'eighteen dollars on promissory note. Eli W. Hinkson.”</p> <p>This was all the evidence offered by either party. The defendant asked the court to charge that, “ under the evidence the plaintiffs cannot recover, and the verdict must be for the defendant.”</p> <p>The court reserved the point, and submitted the case on the evidence, with instructions to render a verdict for the defendant, unless it should be found that the defendant participated in making the payments; and in case it should be so found, then to render a verdict for the plaintiffs.</p> <p>The jury found for the plaintiffs for $226.26.</p> <p>The court, Butler, P. J., subsequently directed judgment to be entered on the verdict, in an opinion, inter alia, saying:</p> <p>“ As the case stands we have no positive testimony how, or by whom, the payment was made. Have we grounds for legitimate inference, by which the fact can be ascertained ? This is the question raised by the point.</p> <p>“ The facts are that the debt was joint — the obligation and duty to pay, resting equally on both — that payments were made by Groce, personally, and that for these, payments separate receipts were taken in his own name, particularly exhibiting the fact that he paid,</p> <p>“ Our impression on the trial was that an inference might legitimately be drawn from these facts, that the payments here involved were by both; that as the duty was on both, both participated in discharging it; and especially as there was evidence that when Groce alone paid (as shown in the two instances referred to), he took receipts in his own name, particularly exhibiting the payment by himself; that the inference was one of fact, to be drawn by the jury, or not, as might seem reasonable. And as'this impression has not been removed, we must disaffirm the point, and direct judgment to be entered, on the verdict.”</p> <p>This action of the court was assigned for error by defendant.</p>

<p>Certiorari to the Court of Common Pleas of Chester county: Of January Term 1878, Nos. 33 and 36.</p> <p>These writs were taken respectively by James M. Beale and others, and Mary P. Miller and others, who alleged that the court erred in their ruling upon the exceptions filed by the Pennsylvania Railroad Company to the report of viewers appointed to assess the damages sustained by the owners of land appropriated by said company in straightening and improving the line of their railroad. The facts are stated in the opinion of this court.</p>

<p>1. AVhere parties have a special confidential or fiduciary relation, which affords the power and means to one to take undue advantage, or exercise undue influence over the other, a transaction between persons so situated is watched with extreme jealousy and solicitude; and if there be found the slightest trace of undue influence or unfair advantage, redress will be given to the injured party.</p> <p>2. Such a relation exists between man and wife; and where there are transactions between them, courts will apply the same rules which govern dealings between attorney and client, principal and agent, guardian and ward, trustee and cestui que trust, and will require, when the husband claims a benefit arising from any such dealings, that it be shown affirmatively that he acted in perfect good faith, and took no advantage of his influence or knowledge, and that whatever contracts he made, were fair, adequate and equitable. If no such proof is established, courts of equity will avoid his contracts on the ground of constructive fraud.</p> <p>3. • The conveyance of a wife’s estate for her husband’s use will be held void, unless it affirmatively appears from the attending circumstances, or otherwise, that it was her voluntary act, and not induced by undue influence.</p> <p>4. The certificate of a magistrate to the acknowledgment of a deed of her separate estate'by a married woman to her husband, will not avail, wher innocent purchasers have not intervened, to prevent her heir from avoiding the deed on the ground of undue influence on the part of the husband.</p> <p>5. Where a bill in equity is inartistic and incomplete, but has substance by which to amend, if necessary, amendment will be allowed in the Supreme Court. '</p> <p>6. Where a 'hill in equity is filed to enforce compliance with an award, and it appears that a married woman had not been joined by her husband in the submission to the arbitrators, and was not therefore bound, the court will nevertheless grant appropriate relief, if the complainant’s bill discloses substantial grounds therefor.</p>

<p>A son being about to leave his father’s house to learn a trade, the father verbally agreed if he would remain at home and work on the farm until he was twenty-one years of age, he would give him §1000. The son remained, and when reached his majority, another verbal agreement was made, whereby he was to continue at home and work on the farm for the wages usually paid in the neighborhood. He remained for seven years, and when leaving, the father promised to give him §500 for his services during these years. Three years thereafter, the father finding he was insolvent, confessed a judgment to the son for $1500, upon which execution issued, and the father’s personal property was sold. Subsequent execution-creditors claimed the fund, on the ground that the son’s judgment was a fraud upon them and void. 1-feld, that the consideration for such a preference was valid and the debt justly due, and the judgment given therefor was valid, and not a fraud upon creditors.</p>

<p>Error to the Court .of Common Pleas of Pike county: Of July Term 1877, No. 122.</p> <p>Case by Jacob Klaer against Warren K. and George K. Ridgway, to recover damages for the diversion of water from a run, to the injury of the grist-mill of plaintiff. ■ At the trial it appeared that, in 1866, John C. Mott was the owner of a tract of land at Milford, in Pike county, lying along the Sawkill creek, on which, was erected a grist-mill and saw-mill, which were supplied with power by a small dam across the Sawkill on his land, which turned the water into a dug-race along the bank, from which a flume at the lower end carried water to the grist-mill, and farther up a flume led to the saw-mill. From the grist-mill flume water was taken to a spoke-factory.</p> <p>On September 22d 1866, Mott, being the owner of the grist-mill and saw-mill, conveyed to Jacob Klaer a piece of this land, which he had. before leased to him for a spoke-factory, and on April 1st 1868, being still owner of all the rest of the property, conveyed to the plaintiff the grist-mill and five acres of land. The material portion of both these deeds, will be found set forth in the opinion of this court.</p> <p>After the death of Mott, the defendants purchased of his executors the saw-mill, and also erected a dam above the one mentioned on the same tract, and when there was not sufficient water to run the grist-mill to its full capacity would draw off the water to their saw-mill and diminish the speed of the grist-mill and injure the grinding .and business, at other times stopping the grist-mill entirely, and would close their dam and let down the water at their own pleasure. This greatly injured the plaintiff’s business, and he brought this action to recover damages.</p> <p>In addition to the foregoing evidence, it was proposed, on the part of the defence, to ask one of the defendants whether at the time of the building of the reservoir dam, the plaintiff -was not there frequently looking on, and did not make suggestions, as to how it ought to be built, and whether he made any objections thereto ; and further, to ask one of defendants, if after the completion of the same, he made a proposition to plaintiff, that he, plaintiff, should have the right to draw the water whenever he was in particular need of it for present work, and that when defendants had urgent work on hand and plaintiff had not, the defendants should draw -the water and 'have the preference.</p> <p>The evidence, under both of these offers, the court, under objection, admitted and sealed exceptions.</p> <p>A.mong the points presented by the plaintiff were the following, subjoined to which are the answers of the court.</p> <p>1. That under the deed of John C. Mott to plaintiff of April 1st 1868, for the grist-mill property, he had a right to use for any purpose (except a saw-mill) as much water from the grist-mill flume as was required by the grist-mill to run it to its highest capacity at that time.</p> <p>Ans. “Refused.”</p> <p>2. That he might take the water from the grist-mill flume at any point, and might use it at the spoke-mill, or lor running any other machinery (except a saw-mill) that suited his business or convenience.</p> <p>Ans. “ Refused.”</p> <p>3. That under the deed of September 22d 1866, from John C. Mott to Jacob Klaer for the spoke-mill, Klaer had the right to use six-horse power of water from the grist-mill flume at any time, when there was sufficient for the grist-mill, without regard to the sawmill.</p> <p>Ans. “ Refused. ’ ’</p> <p>4. That when plaintiff became the owner of the grist-mill and spoke-mill, he became entitled to use from the grist-mill flume, six-horse power of water more than was sufficient to run the grist-mill to its full capacity on the 1st of April 1868, and he might apply it all at the spoke-mill, or all at the grist-mill, or he might divide the water to suit his convenience and business.</p> <p>Ans. “Refused.”</p> <p>7. That plaintiff had a right to change the flume to the dug-race to suit himself, provided he did not draw from the dug-race more water than he was entitled to under his two deeds.</p> <p>Ans. “Refused.”</p> <p>8. That if the jury believe from the evidence that defendants had drawn water from the dug-race, and had thereby impeded and affected the running of the grist-mill, when plaintiff was not drawing from his flume more water than he was entitled to for any purpose, then plaintiff is entitled to recover.</p> <p>Ans. “ Plaintiff’s eighth point is affirmed, with the qualification that plaintiff must not have been drawing more water than he was entitled to for his grist-mill.”</p> <p>In portions of the general charge, the court, Waller, P. J., said,</p> <p>“ [The restriction in this,deed limited the spolce-mill to the use of water which would not interfere’ with, or prevent the running of the grist-mill and the saw-mill, and to a non-user of the water when necessary to the running of the other mills.]</p> <p>“ [These deeds did not and do not confer upon Jacob Klaer and his assigns the unrestricted right to run his spoke-mill to the exclusion of the saw-mill. As we understand these deeds, the plaintiff had the first right to the water for his grist-mill, of the capacity and power as then constructed.’ The saw-mill had the next right to water to run it, and the spoke-mill had the right to use of the. surplus water. If plaintiff had not work for his grist-mill, he had not the right to appropriate the water to his spoke-mill to the exclusion of the saw-mill. He was limited, as we have said, to the reasonable use of water for that grist-mill, so long as he ran it.”]</p> <p>The verdict was for. defendants, and after judgment thereon, plaintiff took this writ, and among his assignments of error were the admission of the evidence noted above, the answers to his points, and the portions of the charge in brackets.</p>