Volume 87 — Pennsylvania State Reports

<p>1. While a prothonotary is responsible for the accuracy of his search only to the person who employs him, yet if the agent of the person who thus employs him, not relying upon the correctness of the certificate, applies to the prothonotary and he reaffirms its correctness, such reaffirmance is a republication of the certificate and will bind the prothonotary-and make him liable in damages for any injury.resulting from a neglect to include a judgment in said search.</p> <p>2. It was proper to submit to the jury the fact of such republication.</p>

<p>Certiorari to the Court of Quarter Sessions of Wayne county: Of January Term 1878] No. 224.</p> <p>Appeal by the District of Lake from an order of removal of Louisa Burleigh, a pauper, from the district of South Canaan to the district of Lake.</p> <p>Louisa Burleigh, the pauper, whose settlement is in dispute in this case, was the wife of Sylvester Burleigh. A decree of divorce was made May 5th 1869, by the Court of Common Pleas of Wayne county, on the ground of desertion by the wife. At the time of the desertion, in May 1866, the domicil and settlement of Sylvester Burleigh was in the territory, then and now, of South Canaan, where he was born, and in a house which he had built on his father’s land, in which he had lived five years. For twenty-five years he had paid taxes in South Canaan. He owned land which had no building on it, and was situate about half in South Canaan and about half in. Jefferson township, Luzerne county. On the 16th of May 1876, by a decree of the Court of Quarter Sessions of Wayne county, a part of South Canaan and Salem townships were set off into a new township called Lake. A small part of Sylvester Burleigh’s land, some three acres, was embraced in the new township. “Right away” after his wife left him, in May 1866, he broke up housekeeping, leaving his “ things” in the house until he let his father have it, about a year after his wife left; -then he moved the things into the house his father moved out of, which was also then and now in South Canaan; but he never went back into either house to live again unless it was to stay over night occasionally, and in the winter of 1867-8 boarded at his father’s some days and took care of his cattle. At the time of the divorce, some of his household goods still remained at his father’s house, of which Sylvester had the key; some were at Rufus Swingle’s, then in South Canaan, now in Lake, where Sylvester Burleigh was at the time of the divorce boarding, and where he had boarded for about two months before, and some in a shanty in Jefferson. During this time and at the time of the divorce he was working on another shanty where he lived at the time of the hearing. It was situated on his own land, and the line between Jefferson and South Canaan went directly through the house. That part of the shanty which was in South Canaan was set off into Lake township. At the time of the divorce he had not lived in this shanty and had nothing there. After the house was completed, in September 1869, he had his things remaining at his father’s house brought to his new house, which was about half in South Canaan and half in Salem, and went to keeping house there.' Subsequently the house was removed so that it stood all in what is now Lake. He always voted and paid taxes in South Canaan until Lake was set off, after which he voted in Lake. He was never assessed nor paid taxes nor voted in Salem. Some two months before the divorce Mrs. Burleigh’s own household goods, which she brought there at the time of her marriage, were taken away from the house in South Canaan by her friends. After he broke up housekeeping, as aforesaid, Sylvester Burleigh boarded (except as stated hereafter) at different places, employed by others at different kinds of work, until he went to board at Rufus Swingle’s, some two months before the divorce. His washing was done at said Swingle’s while he boarded there, and generally at the same place where he boarded. For some four or five months after April and embracing August 1868, he lived in a shanty in Jefferson township, where he boarded himself. He does not appear to have remained at any one place over a few months; his longest stay being at Stanley Burleigh’s, where he boarded from in May 1866 until the following winter, working for the Pennsylvania Coal Company. After leaving this shanty he boarded at different places in what is now Lake, until he came to Rufus Swingle’s as aforesaid, about two months before the divorce. After the divorce Louisa Burleigh became a pauper and was for some time supported by South Canaan, until, on the 10th of April 1877, the overseers of the poor of South Canaan obtained an order for her removal to Lake, from two justices of the peace, who adjudged her last settlement to be therein, which order was appealed from by Lake township, The case was argued upon depositions, taken by agreement of counsel, which disclosed the foregoing facts.</p> <p>•The court dismissed the appeal and adjudged the pauper to be legally chargeable upon Ldke township.</p> <p>The overseers of Lake township filed the following exceptions :</p> <p>1. The facts in evidence were insufficient to give a settlement in Lake township and to authorize a removal there.</p> <p>2. The facts in evidence showed a settlement of the pauper in South Canaan.</p> <p>8. The facts in evidence showed that at the time of the divorce the settlement of the husband was in South Canaan township, in that portion thereof not set off into Lake, and there was no evidence showing any other or different settlement of the husband prior to the time of the divorce.</p> <p>4. The facts in evidence were insufficient to change the pauper from South Canaan to Lake, her original settlement after marriage without doubt being in South Canaan, and there being no evidence to show any change of settlement prior to the divorce.</p> <p>The court dismissed these exceptions and affirmed the original judgment and order, and from this action this appeal was taken.</p>

<p>Appeal from tbe decree of the Orphans’ Court of Wayne county: Of January Term 1878, No. 241.</p> <p>Appeal of John Dean and Catharine his wife, in right of said wife, from the decree of the court in the matter of the petition of Peter Walsh, administrator of James Hoban, deceased, for an order of sale of real estate of said decedent to pay debts, and from the decree of said court confirming said sale absolutely. The facts are sufficiently stated in the opinion of this court.</p>

<p>1. Whether a structure is a fixture, or not, depends on the nature and character of the act by which the structure is put in place, the policy of the law connected with its purpose and the intentions of those concerned in the act.</p> <p>2. Where a railroad company was a trespasser and its entry upon land not in conformity with law, these irregular proceedings did not operate as a dedication to the landowners of the property of the company, placed upon the land, so as to entitle said landowners to include said property in an assessment of damages under the railroad law, and recover their value as an accession to the value of the land taken by the company.</p>

<p>Error to the Court of Common Pleas of Wayne county: Of January Term 1878, No. 181. .</p> <p>Case by Stephen E. Whitaker, against the Delaware and Hudson Canal Company, to recover damages for injury to plaintiff’s rafts while passing through the schute of defendant’s dam, alleged to have resulted from the improper construction and maintenance of such dam.</p> <p>The narr., inter alia, charged:</p> <p>“ That the defendants did not nor would use such due and reasonable care, diligence and skill, or adopt such due and proper precautions in and about the premises, in putting and leaving the said highway in such reasonably secure and proper condition, and as safe and convenient for the descent of rafts as it was before the construction of said dam; and the defendant then and there, to wit, at the time and place aforesaid, wrongfully, negligently and injuriously, made default in the premises, and built and left the said dam in and across said highway, in a dangerous, insecure and impassable state and condition,” &c.</p> <p>The defendant, incorporated by the legislature of New York, and possessing certain franchises granted by the legislature of Pennsylvania, was authorized by the two states to construct a canal or slack-water navigation from the head-waters of the Lackawaxen creek to its mouth in Pennsylvania, and thence in the state of New York down the Delaware river to Carpenter’s Point, and to the Hudson river. In doing so it was authorized to construct dams on the Delaware river and to make feeders therefrom. This right was essential to carry out the purposes for which the defendant was incorporated, viz: the construction of a great inter-state water communication between the coal fields of Pennsylvania and the city of New York. In pursuance of its chartered privileges, it in 1827 erected a dam across the Delaware river at the mouth of the Lackawaxen creek, for the purpose of supplying that portion of the canal upon the New York side of the river with water.</p> <p>By the 3d section of the Act of the General Assembly of Pennsylvania of April 1st 1825, Pamph. L. 141, it is -provided, “ That the said company shall not erect any works or make any improvements connected with the Delaware river unless the same shall be so constructed as to leave the channel of the said river as safe and as convenient for the descent of rafts as it now is.”</p> <p>The plaintiff was a lumberman, and as such, was engaged in running lumber down the Delaware river. In the summer of 1875, in passing the dam two double rafts owned by him were wrecked, causing the loss fór which suit was brought.</p> <p>At the trial the plaintiff offered some evidence in regard to the maintenance of the dam, but relied chiefly upon its improper construction as the cause of the injury done to his rafts. There was also evidence on the part of defendant as to the broken and damaged condition of the rafts, the material portion of which is recited in the opinion of this court.</p> <p>The court, Waller, P. J., directed a verdict for the defendant m an opinion, inter alia, saying :</p> <p>“It devolves upon the plaintiff to make out his case; and to sustain his action he must furnish evidence of his loss, and must prove the loss was caused by passing over this dam of the defendant, and further, that his loss was occasioned by the negligence or want of proper care and diligence on the part of the defendant in keeping the dam and schute, which constitute ‘ the channel of the river’ at that point, in proper repair and condition for the reasonably safe and convenient descent of rafts. In the absence of such evidence we instruct you that the plaintiff cannot recover in this action.</p> <p>“It is an unquestionable fact that the dam of the defendant forms an obstruction to the navigation of the river by rafts. But if the defendant has constructed the dam in such a manner as to afford the least possible obstruction to the running of rafts, and has maintained and kept in good repair a schute in said dam which renders the passage of rafts over the same reasonably safe, and has provided the best means of passing over the dam that could be done with the user of the dam, under the grant from the Commonwealth, and has kept such schute in good order and repair, then the plaintiff cannot recover. The plaintiff has not shown by competent evidence such negligence on the part of defendant, nor has he offered sufficient evidence that would warrant us in submitting the question to you, as a question of fact, whether such negligence existed; while the defendant has, by a large number of witnesses, shown that this schute was, at the time complained of by the plaintiff', -in as safe a condition as usual, and as safe as many natural points in the river, other than this dam. We think, under the rules of law governing this case, that the plaintiff has failed to make such a case as should be referred to the .jury. We therefore direct a verdict for the defendant.”</p> <p>The plaintiff took this wwit and assigned for error the refusal to submit the case to the jury and the direction to find for defendant.</p>

<p>1. Where judgments have been entered against a husband, his declarations that certain property belongs to his wife are inadmissible in evidence as against creditors, and should be withheld from the jury, although during the trial no objection was made to their admission.</p> <p>2. A husband may make a gift to his wife or a settlement upon her, which equity will sustain as against creditors, in the absence of a fraudulent intent, and the question of such intent should be left to the determination of the jury-</p> <p>3. It seems, that the 2d section of the Act of May 5th 1855, is in pari materia with the Feme Sole Trader Act of February 22d 1718. Under said section it is not necessary that there should be the decree of any court that a wife is to be regarded as a feme sole trader, to entitle her to accumulate and hold property against her husband and his creditors; the right results from proof that she has been thrown upon her own resources for support, and that her husband has deserted her or neglected to provide for her from any cause/</p>

<p>Error to the Court of Common Pleas of Monroe county: Of January Term 1878. No. 207.</p> <p>Assumpsit by the borough of Gouldsboro’ against the township of Coolbaugh, to recover one-half the cost of erecting a bridge across the Lehigh river.</p> <p>The jury found a special verdict, the material portions of which were these: “ That by the Acts of Assembly of September 25th 1786, and April 17th 1795, the east bank of the Lehigh river was made the boundary or division line between Luzerne and Monroe counties, the east bank being on the Monroe county side; that by the Act of May 12th 1871, the village of Gouldsboro’ in Luzerne county was incorporated into a borough, and the Lehigh river is named in said act as the southern boundary thereof; that the township of Coolbaugh is on the opposite side of said river (which at this point is a small unnavigable stream), the east bank thereof being the boundary line of said township; that in 1857, a public road was laid out, beginning in Coolbaugh township, opposite Gouldsboro’, and in the same year a bridge was built, by private subscription, to connect therewith at that point; that in the year 1875, this bridge was burned down; that the proper borough authorities of Gouldsboro’ thereupon duly notified the supervisors of said Coolbaugh township, and requested them to join the authorities of Gouldsboro’ in rebuilding said bridge; that the supervisors refused to join in rebuilding the bridge, or to contribute anything for that purpose, and denied their liability to do so; that thereupon the borough authorities of Gouldsboro’, by her proper officers, rebuilt the said bridge, and before bringing the present suit, demanded from the supervisors of Coolbaugh township, the one-half of the costs and expense of rebuilding said bridge, which, or any part of it, said supervisors refused to pay. If the court should be of the opinion that the plaintiff, upon these facts, was entitled to recover, then judgment was to be entered for said borough for $155.13; if otherwise, then for defendant.</p> <p>The court, Dreher, P. J., entered judgment for the defendant m an opinion, inter alia, saying:</p> <p>“ The General Assembly have said that the southern boundary of the borough shall be the Lehigh river. But this may be considered a too literal and technical construction, in view of the fact that the old division line is the east bank of the river, and that the division line in or along the river bank, wherever it may be, is rather to be taken as the boundary of the borough, on the river side. In the view we take of the case, this question is of no importance, for granting that the lines of the borough are to be extended across the river to the east bank, we still think the case does not come within the provisions of the 34th section of the Act of 13th June 1836. That section provides that ‘ where a small creek, * * * shall be on the boundary or on the division line of a township, the bridge shall be built and maintained at the joint and equal expense of the said towmships, by their respective supervisors, in the manner directed by law in the case of public roads, which may be the division line of townships.’ The 10th section of the same Act of 13th June 1836, provides that ‘public roads or highways which have been or shall be laid out on a line which divides two townships, shall be opened * * * at the joint and equal charge of such townships; and if either township shall in any such case, necessarily incur more than its due proportion of such charge, it shall be lawful for such township to recover from the other township,’ &c. Now it will be observed that the 10th section provides for the case of a road laid out on a division line between two townships; the same expression as in the case of a bi’idge where a small creek shall be on the boundary or division line. It will hardly be contended that where a road is laid out along and immediately adjacent to a division line, between two townships, but wholly in one, it is on the line in the sense and meaning of the 10th section. So it seems to me that a creek, the east bank of which is the boundary or division line between two townships, cannot be said to be on the boundary or division line, in the sense and meaning of the 34th section of the Act of 13th June 1836.”</p> <p>The plaintiff took this writ, assigning this entry of judgment for error.</p>

<p>1. No presumption of an intent to die intestate as to any part of an estate is to be made when the words of- the testator will carry the whole.</p> <p>2. The grammatical construction of language is always entitled to weight in the interpretation of the true meaning of a will, but when it is used by one evidently not familiar with grammatical rules the force of such construction is materially diminished.</p>

<p>Error to the Court of Common Pleas oí Northampton county: Of January Term 1878, No. 272.</p> <p>Assumpsit by Joseph Laubach, assignee of the Dimes Saving Institution of Bethlehem, against William Leibert, in which the following case was stated for the opinion of the court:—</p> <p>William Leibert, defendant, and Levin J. Krause, were assignees of John Krause for the benefit of creditors. In 1874 Leibert, as assignee, opened an account with the Dimes Saving Institution of Bethlehem, and had standing to his credit, as assignee on the books of said bank on May 2d 1877, $3988.76, and interest $487.77, total $4476.53, funds belonging to said estate.</p> <p>The Dimes Saving Institution of Bethlehem was, on May 2d 1877, the holder of notes on which Leibert was liable individually as maker, and amounting all together to $1550.</p> <p>It was also the holder of notes on which Leibert was liable as endorser, amounting to $3600, said liabilities individually and as endorser aggregating $5150.</p> <p>On April 30th 1877, said Dimes Saving Institution of Bethlehem resolved to suspend. They were incorporated by Act of General Assembly of October 23d 1863, and after the passage of the resolution, neither the president, cashier, assistant cashier nor teller remained in the bank. The doors of said bank remained open until May 2d 1877, and Ashton C. Borhek, one of the trustees of the bank, but not one of its executive officers received payment of notes falling due, but neither received any money on deposit or made any payments. On May 1st 1877, a citation was issued by the court, at the instance of a creditor, directed to said bank, and requiring them to show cause why they should not be decreed to make a general assignment for the benefit of creditors, which citation was returnable May 7th 1877. On May 7th 1877, said defendants filed their answer, admitting their insolvency and willingness to make an assignment to G. B. Linderman, Esq.; and a decree was made as prayed for. On May 9th 1877, a general assignment was executed according to the decree, under Act of Assembly of 16th April 1850. On May 2d 1877, Levin J. Krause, a director or trustee of said bank, acting on behalf of William Leibert, both said Krause and said Leibert knowing the insolvent and suspended condition of said bank, presented to Ashton C. Borhek, at the banking house of said bank, the following checks :—</p> <p>“ No. —. Bethlehem, Pa., May 2d 1877.</p> <p>Dimes Saving Institution of Bethlehem.</p> <p>Pay to the order of Levin J. Krause twenty-two hundred and sixty dollars, for note due May 8th.</p> <p>William Leibert, Assignee.</p> <p>Endorsed — Levin J. Krause.</p> <p>Received this under protest.”</p> <p>“No. —. Bethlehem, Pa., May 2d 1877.</p> <p>Dimes Saving Institution of Bethlehem.</p> <p>Pay to the order of William Leibert fifteen hundred and fifty dollars, to take up three notes, one for $450, one for $600 and one for $500.</p> <p>$1550. William Leibert, Assignee.</p> <p>Endorsed — William Leibert.</p> <p>Received this under protest.”</p> <p>“No. —. Bethlehem, Pa., May 2d 1877.</p> <p>Dimes Saving Institution of Bethlehem.</p> <p>Pay to the order of Levin J. Krause one hundred and seventy-eight dollars.</p> <p>William Leibert, Assignee.</p> <p>$178.</p> <p>Endorsed — Levin J. Krause.”</p> <p>Amounting to the sum of three thousand nine hundred and eighty-eight dollars ($3988), which checks were received by said Ashton O. Borhek under protest, and so marked.</p> <p>The question submitted for the opinion of the court is, whether William Leibert is bound to pay the assignee in cash the whole of the said notes on which he is individually and as endorser liable, or whether the said checks, amounting to $3988, are payment to that amount of the said notes.</p> <p>If the court be of opinion that said Leibert is so. liable, then judgment to be entered for the plaintiff for the amount of said notes and interest from the maturity of said notes; but if not, then judgment to be entered in favor of plaintiff only for the balance remaining due on said notes, after deducting said sum of $3988; the costs to follow the judgment, which shall be final.</p> <p>The court, Meyers, P. J., in an opinion, inter alia, said:—</p> <p>“We are clearly of the opinion that there is no averment of fact or facts in the case stated that constitutes either in law or fact the transaction of May 2d 1877, between Levin J. Krause, on behalf of the defendant, and Ashton O. Borhek, on behalf of the bank, a payment on the notes in suit.</p> <p>“The only remaining questions for consideration are, whether the checks themselves, having been presented to the bank and by it retained, or the indebtedness of said bank to the defendants by reason of the credit of the latter on the books of the bank of $3988.76, and interest $487.77, operate as a payment to that extent, in a suit by the bank against the defendant on said notes, or can be pleaded by way of set-off.</p> <p>“We are decidedly of the opinion that said checks or indebtedness of themselves cannot operate as actual payment, for that is generally in the nature of a contract, and there are no sufficient averments in the case stated that said checks or indebtedness should operate as a payment or discharge of said notes to that extent. Neither are there any averments of facts that would raise a conclusion of law' that either the checks or the indebtedness should operate as payment.</p> <p>“ Can said checks or indebtedness be deducted from said note» by way of set-off?</p> <p>“ Generally where one person is indebted to another, the latter can set off a debt due in the same right. In the application of this rule courts have allowed it in cases which apparently ought to have been excluded by the rule. The objection on the part of plaintiff to allow said checks or indebtedness to be treated as a set-off is based on the ground that they are not due by the bank in the same right; that two of said checks are signed by the defendant as assignee, and that the credit of the defendant on the books of the bank is in the name of the defendant as ‘assignee,’ and the fact admitted in the case stated that said credit was in fact for trust funds of the assigned estate of John Krause to the defendant, and another for the benefit of creditors. There is no doubt that the objection would be well taken if said credit had been in the name of the defendant as . one of the assignees of John Krause for the benefit of creditors. It is contended on the part of the defendant 'that the addition of the word ‘ assignee’ to the name of the defendant as depositor does not, without any further designation, give the deposit the character of a trust fund, and make the depositor a creditor of the bank in a fiduciary character. In other words, it is claimed that the word ‘ assignee’ is mere surplusage, and that the credit in its legal effect between the depositor and the bank is the credit of the depositor in his individual right, and as such he has a legal right to the deposit, and to sue for and recover the same: Swartwout v. Bank, 5 Denio 555. Swartwout was collector of customs in the city of New York, and kept an account with defendants in the name of ‘ Samuel Swartwout, collector,’ which was continued to Nov. 1st 1838, when there was a' balance to his credit of $751.26. During the same period he kept another account with the defendants in the name of ‘Samuel Swartwout.’ This account was balanced September 11th 1838. In May 1844, the plaintiff’s interest on the former account was assigned to one F. J., and a check drawn for the same and signed ‘Samuel Swartwout, late collector,’ presented to the defendants, which they refused to pay. On suit brought by Swartwout, the Supreme Court of New York held that where a public officer deposits money in a bank upon an account kept in his own name, with his official addition, in the absence of evidence to the contrary, it is presumed and regarded as his own funds and subject to his drafts. The reason for this decision, as collected from the opinion of the court, seems to be that the defendants, to protect themselves from payment to the plaintiff, must show that by their account so kept they are liable to pay the United States this balance.</p> <p>“Is this the law of this state?</p> <p>“ It has been held in this state that where a person in fraud of the true owner of money deposits it to his own credit, the owner of the money, on proof of this fact, can recover the money from the depository in his own name: Frazier v. Bank, 8 W. & S. 18.</p> <p>“So also'where an attachment was served on a bank, and the defendant in the attachment, subsequently acting as agent for a third person, deposited cash with the garnishee in his own name, and also procured said garnishees to discount drafts drawn by said defendant, though in fact as agent, which were paid by the principal. Subsequent to the attachment, the defendant drew out the funds by his checks and applied them to the business of his principal. Yet it was held that the garnishees were liable to the attaching creditor, although the jury found that all the funds were deposited and drawn out by the defendant as agent for others. It does not clearly appear from the history of the case whether the bank had knowledge at the time the money was deposited that it did not, in fact, belong to the depositor, but the fact that it stood in his name, and apparently subject to the operation- of the attachment, shows the bank had no right to pay out the money to the defendant, on the information that it belonged to him as agent. Especially where the cestui que trust never gave notice to the attaching creditor of any claim, or never appeared in court to move that the attachment should be quashed, nor took any steps asserting ownership or indicative of it: Jackson v. Bank of United States, 10 Barr 61.</p> <p>“This case was somewhat doubted by Judge Hare, in Paxon v. Sanderson, 3 Phila. 303, but was fully sustained in F. & M. Bank v. King, 7 P. F. Smith 207, on the ground that at the time the money was paid in the bank the latter had no knowledge that the money belonged to another, and that before attachment they could not have resisted the claim of the depositor in the absence of notice; but that a subsequent payment of the money on the checks of the defendant in the attachment would not entitle the garnishee to defend against the scire facias by attempting to show that the money deposited, in fact, was the money of some undisclosed principal of the depositor. But neither the case of Jackson v. Bank, nor Bank v. King, decide that if the garnishee had not paid out the fund to the depositor, the former could not have defended on the ground that the money did not belong to the depositor. But in Bank v. Jones, 6 Wright 534; 8 Id. 524, and Bank v. Ryan, 14 P. F. Smith 246, it was held that where money was deposited in the name of a person simply as agent, it was competent for the bank, as garnishee in an attachment against the depositor, to show by evidence aliunde that the money belonged to a third person. It was, however, said by Judge Read, in the latter case, that where the depositor can at any time draw money out on his own check, and no person could interpose to prevent it, it is liable to attachment.</p> <p>“ The same principle is ruled in Bank v. King, 7 P. F. Smith 202. This was also an attachment case. The defendant in the attachment was John H. Curtis, Jr., and agent for the plaintiff in the collection of rents. He was also agent for the Philadelphia Saving Fund Society, for the trustees of the Fotteral estate, and others. He deposited his funds in the Tradesmen’s Bank, and that of his clients with the garnishees in the name of J. H. Curtis & Son. J. H. Curtis, Sr., was dead, and his son retained the firm name. After the service of the attachment, notice was served on the garnishees that the fund attached belonged to the cestui que trusts above named. On issue joined between plaintiff and garnishees, the court held that it was competent for the garnishees to prove these facts; that the attaching creditor stood in the position of the depositor, and could only recover what the depositor could. In Stair v. Bank, 5 P. F. Smith 364, Wolf, the sheriff of York county, and also executor of Shearer, deposited money in bank which was credited to Wolf in his account as sheriff, but noted in his bank book by a bank officer as belonging to Shearer’s estate. Wolf died, and letters de bonis non c. t. a. were granted to another person, who drew a check on said bank for the money deposited by Wolf and noted in his bank book as belonging to Shearer’s estate. The bank refused to pay it. Suit was brought by the administrator against the bank, and on proof of said facts the court held that the action was properly brought and the plaintiff entitled to recover.</p> <p>“A careful examination of the principle on which these cases were decided renders it somewhat difficult to apply them to the facts of the ease'. We can well understand where a principal is entitled to a fund deposited in bank in the name of his agent, w'hy the former should be entitled to recover it, whether on the ground of fraud or the mere fact that he is the lawful owner thereof. So also where money attached in the hands of a person received in the name of the defendant in the attachment, but in fact the money of a third person, that this fact could he set up as a defence by the garnishee when notice had been given by the true owner, or where the latter appeared in court and sought its assistance to protect him against the attaching creditor.</p> <p>“ There is no doubt, as we have already stated, that if the money had been deposited in the name of one or both assignees, as assignees of John Krause, for the benefit of creditors, such indebtedness would not be the subject of set-off. For a deposit of money in bank is nothing less than a loan or contract between the parties, and if put in that form, the right of recovery can only be had in that way and in no other. But a deposit by a person designating himself simply “assignee,” though it may have been known at the time by the depository that it was a particular trust fund (which however is not alleged in the case stated), does not necessarily make the contract of loaning between the depository and the depositor other than an individual or personal one in his own right. Would he be obliged to bring suit in his name as one of the assignees of John Krause for the benefit of creditors against the depository to recover the money ? We think not. If in that form then his co-assignee, Levin J. Krause, would necessarily have to join also, for if the word ‘ assignee’ in the credit, coupled with the admission that the money deposited was in fact money belonging to said trust, did not constitute a contract of loaning with the defendant in his individual right, then it must follow that it is a contract by implication with, both assignees in their fiduciary character. But such a conclusion we are not willing to admit. If that were so and the money was lost, Levin J. Krause might possibly be held liable for a devastavit, though he may have had no knowledge of the transaction whatever. But it may be said that assignees for the benefit of creditors occupy the relation of agents to his cestui que trust as principals. That is not so. .The only relation between them is as trustee and cestui que trusts, bearing no resemblance to that of principals and agents. In them as trustees is the legal title and ownership of the trust estates, and in that sense it cannot be said that they are agents of the cestui que trusts as principals. For as between principal and agent the legal title of money belonging to the principal is always in him, though deposited by the agent in his own name fraudulently or otherwise. While that is so he is not bound to invoke his right, but if he does, the depository is obliged to render it to the principal and not to the agent. It is this principle which governs the relation of principal and agent that controlled nearly all the cases above cited, but it has no application to the case under consideration, either as between the parties thereto or the defendant and his cestui que trusts. The cestui que trusts certainly could not give notice to the bank not to pay the money to the assignee, in whatever form he may have deposited it; neither could they bring suit for the recovery of the money. They have, it is true, a remedy to remove an unfaithful trustee, and possibly as auxiliary to the former remedy by proper process, restrain him from recovering the trust funds in his hands. In the proceeding now before the court, the plaintiff has no right to assent, either in his own interest or to protect the cestui que trusts of the defendant, that the fund loaned by the defendant to the plaintiff in fact belonged to the trust estate of John Krause, to defeat the defendant’s right of set-off, unless the former shows conclusively that the contract of loan by the defendant was in his fiduciary character as one of the assignees of John Krause for the benefit of creditors. There are other safeguards thrown around cestui que trusts, and courts are not bound to supervise the transactions of trustees with respect to trust funds in every form they may incidentally come before them.</p> <p>“In those cases already cited, where the relation of principal and agent did not enter into the decision thereof, they are such where the transaction shows that the money deposited was the property of another party, who was in position to enforce it on the death of the original depositor. Such was the case of Stair v. Bank, supra. But the principle governing that case cannot be invoked by the plaintiff in his own behalf against the defendant or in behalf of the defendant’s cestui que trusts.</p> <p>“Moreover, it does not appear that the trust estate is in any way jeopardized by this plea of set-off’, for neither the sureties of the trustees nor their cestui que trusts are in court asking for relief against said act of the defendant in the manner before stated, and until that is done, or it is made to appear that the contract between the plaintiff and defendant with respect to said money deposited was not on the part of the defendant in his individual right, but with him as one of the assignees of John Krause for the benefit of creditors, we are compelled to hold that the defendant is entitled to set-off against the plaintiff’s claim the full amount of defendant’s credit standing on plaintiff’s books, as ‘ William Leibert, assignee,’ as stated in case stated.</p> <p>“And now, judgment is entered in favor of the plaintiff, amount to be ascertained by the prothonotary.”</p> <p>The plaintiff, who took this writ, assigned this entry of judgment for error, on the ground that the question of “set-off” was not submitted in the case stated.</p>

<p>1. A judgment-note given to a candidate for election, in consideration that he would withdraw in favor of another candidate, is void,"and such a contract is prohibited by the Act of April 18th 1874, and cannot be enforced.</p> <p>2. It was error to charge that such a contract was executed by the entry of judgment upon the note, and that iudicial inquiry into the consideration thereof was thereby precluded.</p>

<p>1. Where it is shown that the will of a testator was in existence unrevokedl at the time of his death and was afterwards lost or destroyed, its contents may be proved by parol and the will as thus reproduced admitted to probate.</p> <p>2. AVhere it is shown that the testator always had his will in his custody, and after his death it could not be found, the presumption is that he destroyed it animo revocandi; but such presumption may be removed by sufficient evidence.</p> <p>3. Whenever a dispute arises upon a matter of fact before a Register’s Court, the right to an issue is undoubted, but the demand therefor must be made in due time and where it was not made until after a report by an examiner, a hearing by the court and a motion for a re-argument, it was not error for the court to refuse an issue.</p>

<p>Appeal from the Court of Common Pleas of Luzerne county : Of January Term 1878, No. 186., In equity.</p> <p>This was a bill in equity filed by W. W. Winton, against I). K. Morss, surviving- executor of James Mott, deceased, and others.</p> <p>The questions raised by the record in this case, grew out of previous orders and decrees made in the same cause.</p> <p>In 1870 the plaintiff filed his bill in equity, praying that the effect of a certain paper, executed between Barker, under whom plaintiff claimed, and defendants’ testator, might be decreed to be a mortgage. This paper embraced a tract of coal land in Luzerne county, and covered an undivided two-thirds claimed by plaintiff, the defendants claiming the other third. The whole tract had been under a lease to the Delaware and Hudson Canal Company, the tenant of both parties, by lease executed by both parties. The tract, for the purpose of mining coal, had been in the possession of the Delaware and Hudson Canal Company, since about the year 1859.</p> <p>Originally these two “thirds” of the tract had been included in the same agreement, but in the course of dealing between the parties had been differently treated, and for convenience came to be designated as the “Newton third” and the “Yosburg third.”</p> <p>The litigation was long and tedious and resulted in the following decree, entered in the court below on the 26th of January 1875.</p> <p>1. That upon payment, by the plaintiff, of the costs of this suit within sixty days after the filing of this decree, the said D. K. Morss, surviving executor of the last will and testament of James Mott, deceased, is authorized and directed to make, execute and deliver unto the said plaintiff, his heirs or assigns, a full and sufficient conveyance in fee simple of, in and to the undivided third interest in the tract of land situate in the township of Blakely, Luzerne county, Pennsylvania, known as the Calvin Barber tract, containing about fifty acres, being the same undivided interest therein which Henry W. Newton by indenture, dated the 29th day of April 1862, conveyed to Abel Barker, and which the said Abel Barker, by assignment written upon the back of said deed, conveyed to James Mott, deceased, under and in pursuance of a certain agreement between the said James Mott in his lifetime and the said Abel Barker, bearing date the 29th day of April 1862.</p> <p>The said conveyance to be made in pursuance of this decree may be made and executed by the defendants to the plaintiff in the manner and form provided in the aforesaid agreement, made as aforesaid, between the said James Mott; in his lifetime, and the said Abel Barker’, bearing date as aforesaid, the 29th day of April 1862.</p> <p>2. It is further ordered, decreed and adjudged that the plaintiff pay the costs of this suit.</p> <p>3. And it is further ordered, adjudged and decreed that upon the payment by the plaintiff to the said defendants of the sum of ten thousand nine hundred and forty-one dollars and fifty-two cents, together with lawful interest thereon, from the first day of December 1873, within sixty days from the filing of this decree, the said D. K. Morss, surviving executor as aforesaid, shall make, execute and deliver unto the . plaintiff an indenture of deed in fee-simple and clear of all encumbrances done or suffered by the said James Mott, or his legal representatives, except as hereinafter specifically expressed and excepted for another one undivided third part of and interest in and to the aforesaid Calvin Barber tract “Yosburg third,” described more particularly in the plaintiff’s bill and exhibits, making two-thirds thereof in all, to be conveyed under this decree, excepting and reserving out of the reassignment of said Newton third and the conveyance of said Vosburg third as herein decreed, the rights and privileges of the Delaware and Hudson Canal Company to mine and carry away coal from the said Calvin Barber tract, under and in pursuance of a certain indenture of lease, bearing date tbe twenty-eighth day of August 1858, made between the said James Mott, Henry W. Newton and Charles E. Vosburg, of the 'first part, and Abel Barker, Lewis Pughe and Edward Jones of the second part, which lease.is now assigned t the president, managers and company of the Delaware and Hudson Canal Company; also excepting and reserving the rights of said company under a lease, supplemental to said last-described lease between James Mott, Charles P. Wurts and Abel Barker of the first part, and Lewis Pughe, Abel Barker and Edward Jones of the second part, also assigned to said company, said lease and supplement being recorded in the recorder’s office of Luzerne county.</p> <p>The “costs,” as filed, were as follows:</p> <p>“Defendant’s bill,” including his personal “expenses and time” in conducting the litigation and counsel fees :</p> <p>The defendant’s bill filed, . . . $3,560 75</p> <p>Prothonotary, ...... 36 95</p> <p>Com., ........ 50</p> <p>Examiner, ..... 300 00</p> <p>Master, ...... 600 00</p> <p>Attorney, ..... 3 00</p> <p>$4,501 20</p> <p>From this decree both parties appealed, and in June 1876, the following decree was made by the Supreme Court:—</p> <p>“Decree of the court below affirmed and the appeal of each dismissed, the appellant in each case to pay the costs of this appeal; this decree is subject to this modification in Winton’s appeal, that it shall not be considered as affirming the bill of costs as filed, which is hereby directed to be examined and taxed by the court below, so as to allow only reasonable charges to D. K. Morss, for his time and expenses, and for counsel fees.”</p> <p>The cause was again referred by the court below to “ examine and tax the bill of costs as filed,” and decree entered that they be paid as taxed. This forms the subject of plaintiff’s assignments of error 1, 2, 3 and 4 herein.</p> <p>The plaintiff thereupon paid the costs and moved the court for permission to take the deed for the “Newton third” out of court. (Deeds for both thirds had been executed by defendants, and filed in court under the original decree.)</p> <p>No payments being made on the $10,941.52 due from plaintiff on the “Vosburg third,” the defendants asked the court for a decree “barring the plaintiffs’ right of redemption.”</p> <p>These motions were both refused by the court below in the decree as follows : “Nor do we deem it right, whilst that interest (the “Vosburg third”) is kept in suspense, through either the action or inaction of the plaintiff, to grant him permission to take the Newton deed out of court, and the motion is refused.” This order forms the plaintiff’s fifth assignment of error.</p> <p>The plaintiffs still failing and refusing to maké any compliance with the decree of 1875, requiring payment of $10,941.52, and interest due the defendant on the “Yosburg third,” the defendants undertook to secure the rents due and to become due from the Delaware and Hudson Canal Co., for coal mined on the premises. These premises were becoming exhausted of the coal, and it began to be doubtful if they were worth the $10,914.52. The Delaware and Hudson Canal Company had been notified by the defendants to retain their rents and they had remained unpaid for some years.</p> <p>To that end the defendant filed the following petition, setting forth the previous history of the litigation and concluding, inter alia,</p> <p>“And your petitioner further avers that he has been at all times ready and willing to carry out and comply with the decree of your honor as aforesaid; has tendered to the plaintiff and has filed the deeds to him for the said Newton and Yosburg thirds, to be received by him upon payment as aforesaid, which the plaintiff has refused to make, although so requested to do, and which your petitioner, from the protestations made by plaintiff in his bill, supposed he would do, and he still declines and refuses to pay said sum of $10,941.52 and interest, the amount to be paid on the Yosburg third; and your petitioner further shows that the value of the said Yosburg third has depreciated by reason of the taking out of coal by the Delaware and Hudson Canal Company, under the lease as aforesaid; that it is entirely insufficient for the payment of the amount so due upon it as aforesaid; that neither has the purchase-money been paid by the said Barker or his assignee for the Vosburg third, nor has the balance due upon the sale of the Pancoast and Price mortgage been paid; but the amount is still due upon the two as hereinbefore stated, and your petitioner further avers that the said coal rents have been held in abeyance by the Delaware and Hudson Canal Company, and that they are now in the hands of the said company; and notice has been given that they should not be paid over to the said Barker or his assignees, and they have been so held by the said company till the rights of the parties should be legally determined. Your petitioner therefore prays your honor to grant a rule upon the plaintiff, and also upon the Delaware and Hudson Canal Company, to appear on some day certain, to be fixed by your honor, and show cause, if any they have, why the question of rents shall not be referred to the master, to ascertain and determine the amount thereof still due and owing from said company for coal taken under the lease aforesaid from the Yosburg third, and also from the Newton third, and why an order shall not be made by your honor upon said company for the payment of said rents to your orator, to apply on the balance found to be due to the estate of James Mott, deceased, as hereinbefore stated, and also why an order shall not be made for the sale of the said Vosburg third for the payment of any balance that may be found to be due, after deducting the rents as aforesaid, and that the surplus, if any, shall be paid over to the said plaintiff, and to make such further order in the premises as to your honor shall seem meet and proper, and he will ever pray.</p> <p>D. K. Morss.”</p> <p>Upon this petition orders were made as follows: “ Noav, 13th April 1877, on petition of defendants, rule is granted by the court upon W. W. Winton, plaintiff, and upon the Delaware and Hudson Canal Company, to appear on the 28th day of May next, to show cause why the question of rents shall not be referred to the master, to ascertain and determine the amount thereof still due and owing from said company for coal taken under the lease in the petition referred to from the Vosburg third, and also from the Newton third, and why an order phall not be made on said company by the court for the payment of said rents to defendants, to apply on the balance found due the estate of James Mott, deceased, and also why an order shall not be made for the sale of said Vosburg third for the payment of any balance that may be found due after deducting the rents, and that the surplus, if any, shall be paid over to plaintiff.” And after-wards, 30th January 1878, the rule for an order on the Delaware and Hudson Canal Co. to pay said rents to defendants, and for an order for the sale of the Vosburg third is continued, and “ The decree of 16th January 1875, ordering the plaintiff to pay the said defendants the sum of $10,941.52, together with lawful interest thereon from 31st December 1873, within the time specified, being the amount ascertained to be due on the Vosburg third, is hereby amended by adding this clause, to wit: ‘ And upon the plaintiff’s failure to make said payment for a period of thirty days after the filing of this order and notice of the same to him that he, the said plaintiff, be for ever barred from all claim to and equity of redemption in the said Vosburg third.’</p> <p>Garrick M. Harding, President Judge.”</p> <p>From this plaintiff appealed and filed the following assignments of eri’or:</p> <p>1. The court erred in making the following decree in favor of the defendant, to wit: It is further ordered, decreed and adjudged that the plaintiff pay the costs of this suit.</p> <p>2. The court erred in decreeing costs to defendants for the personal expenses and time spent in the case by D. K. Morss; there being no fee-bill establishing such as costs or fees, and no Act of Assembly, or practice in equity, vesting such power in said court.</p> <p>3. The court erred in decreeing the payment of the sum of $2500 to the defendant’s counsel, by the plaintiff.</p> <p>4. That the fees allowed and decreed to be paid to defendant’s counsel, and the charges of defendant, D. K. Morss, for time and expenses, are excessive.</p> <p>5. The court erred in refusing the plaintiff’s motion, to take out of court the deed made by the defendant to the plaintiff, for the Newton third, after payment of costs by the plaintiff, in accordance with and in pursuance of the decree of the court, and after said decree had been affirmed by the Supreme Court, and in deciding that the plaintiff was bound to redeem the Vosburg third from the mortgage of 15th December 1860, or he could not have the reconveyance of the Newton third.</p> <p>6. The court erred in altering and changing the final decree in this case, and in adding to said decree as follows: “ And upon the plaintiff’s failure to make said payment for a period of thirty days, after the filing of this order, and notice of the same to him that he, the said plaintiff, be for ever barred from all claim to and equity of redemption in the said Yosburg third,” which alteration, changing and amending of said final decree was made the 30th January 1878, after the writ of error was filed in said court below.</p> <p>7. The court erred in assuming jurisdiction, by means of and under the petition of the defendant, filed the 13th April 1877, and in not dismissing the same, after answers filed, and in proceeding under the same, by the appointment of a master, to ascertain the rents unpaid upon the Yosburg and Newton thirds, by the Delaware and Hudson Canal Company, and in making said company a party to this case, by their decree and order of January 30th 1878, after the appeal and certiorari were filed in the court below.</p>

<p>1. The state courts have jurisdiction where a borrower in an action of debt seeks to recover back twice the amount of illegal interest received by a national bank, contrary to the provisions of the 30th section of the Act of Congress of J une 3d 1864. '</p> <p>2. ' The form of action is within the jurisdiction of the state court, and the right claimed in this form is private, belonging to the borrower alone. It is, therefore, immaterial whether the source of the right is a state or a federal law. In either case, it is a law binding upon the state, which has given birth to the right.</p> <p>3. The jurisdiction of the state courts is to be affirmed when it is not excluded by express provision or by incompatibility in its exercise, arising from the nature of the particular ease.</p>

<p>'Error to the Court of Common Pleas of Lancaster county: Of May Term 1878, No. 80.</p> <p>Assumpsit by the Hanover Junction and Susquehanna Railroad Company against John Miller, to recover the amount of a subscription for stock. The company plaintiff was incorporated by Act of Assembly approved May 28th 1872, Pamph. L. 602. Miller subscribed for five shares of stock in a book which contained a form of subscription, which, after reciting the date of the Act of Assembly, &c., continued:—</p> <p>“And whereas, said act fixes the capital stock at $250,000, ten per centum of which must be subscribed, and one dollar per share paid thereon, before said company can receive its letters patent and a legal existence; and whereas, it is the desire of the undersigned subscribers to carry out in good faith and at the earliest possible moment all the provisions of said act, therefore, we, the undersigned subscribers, do promise, agree, bind and obligate ourselves and our heirs, severally, to and with the board of commissioners named in said act, or to any board or board of directors of said company, to pay them or their agents, duly authorized to receive the same, for the use of said company for each and every share of stock subscribed by us as found herein affixed to our names severally the sum of $50 lawful money of the United States, at such times and in such manner as the board of commissioners or directors of said company may, agreeable to the terms of said act, and the general railroad laws of the aforesaid Commonwealth, designate.</p> <p>“And it is further agreed, that we, the citizens of Marietta, and vicinity, do subscribe the amount opposite our respective names, on the following conditions, viz :—</p> <p>“ That the amount hereby subscribed shall be devoted to the building and equipping of the extension of the Hanover Junction and Susquehanna Railroad, according to the survey made by the Philadelphia and Reading Railroad Company, the same having been adopted at the last meeting of the Hanover Junction and Susquehanna Railroad Company, and it is further agreed that there shall be a first-class station erected in Marietta by said company- ... . ■</p> <p>... . “ Further, the said subscription shall only be paid when the sum of $100,000 shall have been subscribed for this purpose, by the citizens residing at or near the line of said above extension in Lancaster county.”</p> <p>The $100,000 were subscribed, Miller being the forty-second on the list of subscribers. Calls on the stock subscribed were made, and all but a few subscribers paid, among whom was Miller, against whom this action was brought. At the trial before Patterson, A. L. J., to defeat a recovery on his subscription, Miller made the following offer of evidence:—</p> <p>That the subscription book of the plaintiff was brought to defendant at his residence north of Marietta, on the east side of the Susquehanna river, by the three persons named before (S. C. Heistand, J. S. Given, J. A. Wolfersberger); it was represented to witness by Samuel C. Heistand that this road would be built past his (witness’) place, and up the east side of the Susquehanna river and cross the river above witness’ place, and if it did not do so he needn’t pay; that that was understood between them to be a condition of this subscription, and that he needn’t pay until it was so built; that these statements, representations and agreements, so made by said Heistand, induced the witness (defendant), to subscribe for five shares of stock; that the company have built no road either through Marietta or above it, past defendant’s place, but have partly graded their road to a point below Marietta, near Chickies, and have partly graded their road on the west bank of the Susquehanna river from a point below Marietta to a point north of defendant’s place of residen ce.</p> <p>The court refused to admit this evidence, and the defendant having nothing further to offer, directed a verdict for plaintiff. Verdiet accordingly, when defendant took this writ, and assigned for error the action of the court.</p>

<p>Appeal from the Orphans’ Court of Lancaster county: Of May Term 1878, No. 122.</p> <p>Appeal by Lavinia Kuhns from the decree of the court dismissing her petition to open and review the account of her late guardian John B. Stehman. The petition, which was presented on January 6th 1877, set forth that the petitioner was the daughter of Isaac R. Kuhns, of Lancaster county, who died intestate in October 1864; that on August 24th 1865, Stehman was appointed her guardian; that Isaac R. Kuhns died seised and possessed of considerable real and personal estate; that by order of court the real estate was sold, and the administrators having filed their accounts on May 14th 1866, it appeared that there remained in their hands, $19,076.03, of which the share of petitioner was $5813.45, the whole of which was paid over to her guardian; that during the minority of petitioner, said guardian never filed any statement or inventory of the property of petitioner, which he had received, or rendered any account of its management; that petitioner came of age, October 8th 1870, and that on April 10th 1871, said guardian filed his account in which he charged himself with having received from the administrators of Isaac R. Kuhns the sum of $4722.99, which amount, with interest was all with which he charged himself, whereas in fact he had received the amount heretofore stated, viz., $5813.45, making a difference of $1090.46, for which he has never rendered any account; that said account was confirmed nisi, June 1871, and that no exceptions were filed thereto. The petition further set forth that during her minority in 1868, the petitioner removed from Lancaster county, Pennsylvania, to Urbana, Ohio, where she had since resided, which residence was well-known to her guardian; that she was ignorant of the amount and value of her father’s estate, and of her share thereof; that she received no notice and had no knowledge of the filing of said guardianship account or of its confirmation until said confirmation nisi'had become absolute; that she was then assured by said guardian that the sum with which he had then charged himself was all that he had received for her from said estate, and that relying on his integrity, and on the truth of said assurance, she accepted the same and took no steps to investigate the truth thereof; that she had no reason to suspect the falsehood of said assurance until recently, and within the last two months when she for the first time discovered the facts as heretofore set forth, and which her guardian fraudulently concealed from her. She, therefore, prayed that the said decree of confirmation might be opened, reviewed and set aside, the account corrected by charging accountant with the additional amount not included in said account, and that a citation might issue, &e. The court granted a rule upon Stehman to show cause why the prayer of the petitioner should not be granted, and he filed an answer, February 13th 1877, which set forth that “He objects to and protest against this whole proceeding, as not sustainable either in law or equity, and denies the power of the court to grant the prayer of the petitioner. That respondent did file a guardianship account of the estate of said Lavinia Kuhns, on April 10th 1871, showing a balance in her favor of $4871.08, which was duly confirmed by said court at June Term 1871. That in said account he charged himself with all the money he received for said Lavinia Kuhns, and she having attained her lawful age early in October previous, a full settlement was made with her on said 10th April 1871, at Lancaster, Pa., in the presence of counsel for the administrators of her father’s estate, and who prepared the guardianship account, release and note then taken. That at her request, $4700 of said balance was left stand, said Stehman giving her his note therefor payable in one year with five and a half per cent, interest, and the residue of said balance paid her in cash. That said note, according to her wishes, remained unpaid until the spring of 1874, the interest in the meantime being paid; and at the time last mentioned she was in Lancaster county for some five or six weeks, and several days at the residence of your respondent. That she had every opportunity to examine his account, and the settlement made, and never raised any objection, to the knowledge of respondent, until the presentation of the petition, and by numerous letters to him, all showing the confidence in and entire satisfaction with what the said Stehman had done in her estate. That a release given by her to said Stehman, her guardian, dated April 10th 1871, was recorded in the recorder’s office at Lancaster, and the following is an extract therefrom :</p> <p>“£I have this day had and received from John B. Stehman, my guardian, the sum of four thousand eight hundred and seventy-one dollars and eight cents ($4871.08) in full satisfaction and payment of the full balance of the account filed by him as aforesaid, and of all moneys received by him for my use during said guardianship from any and all sources whatever, and all interest accrued thereon after deducting the payments by him made and credited in said account.’</p> <p>“That all the allegations contained in said petition, which in any way impute or insinuate that the respondent has neglected to account for the moneys due the petitioner are untrue, &c.”</p> <p>To this answer the petitioner filed a general replication and asked for the appointment of an auditor to ascertain and report the facts.</p> <p>The court, Patterson, A. L. J., discharged the rule and dismissed the petition, in an opinion, inter alia, saying:—</p> <p>“The decree of confirmation in this case by the Orphans’ Court having been made by a court of record, and such as cannot be avoided collaterally, but liable only to be reversed or modified by the Supreme Court on an appeal, if made within the time prescribed, and this review not having been asked for within five years after final settlement and confirmation, is it not final and conclusive ? We think it is. We are forced to this conclusion by the provision of the Act of Assembly of the 13th October 1840, and the judicial decisions construing that act, so far as we have been able to discover them. Groff’s Appeal, 9 Wright 379 ; Weiting v. Nissley, 6 Barr 141; Bunting’s Appeal, 4 W. & S. 469; and other authorities might be cited. The first section of that act clearly fixes a limitation to petitions of review. That limitation is that it must be done within five years after the final decree, confirming the original or supplementary account of the guardian. Not one of the cases cited on the argument in support of this petition of review questions that, or intimates that its provisions fixing that limitation can be disregarded. And this case not coming within the limitation fixed by the act referred to, cannot consequently come within either the letter or spirit of the proviso act of October 13th 1840. If it did come within the purview of that proviso, and though the balance found due in the account, already filed by the late guardian, “shall have been paid over,” this petition of review might probably not be denied. Yet as the confirmation of a guardian account can only be opened on equitable principles, and in view of all the facts made manifest by the pleadings in this case, it is very doubtful whether the court would come to the conclusion that “equity and justice” required the petition of complainant to be entertained. . We think the account filed by respondent April 10th 1871, and confirmed on the 19th day of June 1871, is clearly a bar to these proceedings, commenced January 6th 1877.</p> <p>“ We, therefore, discharge the rule and dismiss the petition.”</p> <p>From this decree this appeal was taken.</p>

<p>Appeal from the Orphans’ Court of Lancaster county: Of May Term 1878, No. 27.</p> <p>Appeal of John B. Grebill, legatee under the will of John Grebill, Sr., deceased, from the decree of the court directing the payment of a certain sum named in the will of decedent.</p> <p>John Grebill, Sr., by his will proven the 19th of September 1840, among other things, directed as follows :—</p> <p>“4. I give and bequeath unto my beloved wife Susanna, the interest of a principal sum of $2000, which interest money at such rate as can be obtained by my executors, shall be paid to my said beloved wife annually, on the first day of April, during her continuing my widow and no longer; and in case my beloved wife Susanna should get married again, then and in such case I do hereby give and bequeath unto her the sum of $647.20, lawful money (being the amount she had when we got married), to be paid to her out of said principal sum of $2000, and the balance of said sum to be paid as hereinafter directed.”</p> <p>“ 5. I do give and bequeath unto my youngest son John (by my wife Susanna), the sum or legacy of $2000, which shall be retained by my executors out of my estate and placed at interest on good security for such percentage as can be obtained to and for the use of my said son John, until he arrives at the age of twenty-one years, when the same with all interest accrued shall be paid to him, his heirs or assigns; and in case the annual interest before given and bequeathed to my beloved wife during her widowhood, should prove insufficient for the maintenance and support of my said beloved wife and my said son John being with her, in such case I hereby order and direct my executors to pay unto my said beloved wife annually as much of the interest accruing on the said sum of $2000, bequeathed to my said son John, as will accomplish said object during the time my son John will live with my widow.”</p> <p>“And farther, I give and bequeath unto my said son John, his heirs and assigns, the aforesaid sum of $2000, whereof my beloved widow receives the interest during her widowhood, to be paid to my said son at the death of my said beloved wife, if she die my widow; but at the marriage of my said wife, then the balance of said sum, after paying thereout such part before bequeathed to my wife, shall only be paid to or for the use of my son John.”</p> <p>The executors of the will of said testator filed their account in the register’s office on the 30th day of October 1845, in which they took credit for the sum of $2000, which sum they retained to meet the provision in the 4th section of testator’s will.</p> <p>John, the son, was born on the 23d of May 1837, and became of age May 23d 1858.</p> <p>Susanna, the widow, did not marry again and died November 30th 1876.</p> <p>The petition of John B. Grebill, the son, in this case, prayed for an order directing Jacob Grebill, the surviving executor, to pay him the said sum of $2000, with interest, from the time of the death of the widow. This order the court refused; but ordered and decreed that -tjie surviving executor should pay to the petitioner the said sum, less $647.20.</p> <p>The remaining facts will be found in the opinion of the court.</p> <p>The foregoing decree was assigned for error.</p>

<p>Error to the Court of Common Pleas of Lancaster county: Of May Term 1878, No. 58.</p> <p>The facts are fully stated in the opinion of this court.</p>

<p>Error to the Court of Common Pleas of Lancaster county : Of May Term 1878, No. 137.</p> <p>Assumpsit by John Brady against John K. Reed, Amos S. Henderson and Isaac E. Hiester, partners trading as Reed, Henderson & Co. Plea, non-assumpsit.</p> <p>John K. Reed, Amos S. Henderson and Isaac E. Hiester, in the spring of 1868, were doing business in the city of Lancaster, as bankers, under the firm name of Reed, Henderson & Co. Brady, the plaintiff below, alleged that on March 12th 1868, he left on the counter of their banking-house a check on the Lancaster County Bank for $550, without a date, and that this check was appropriated by Reed, Henderson & Co., they receiving the proceeds without paying value. Reed, Henderson & Co. alleged that they, as a pure accommodation, cashed the check for Brady, on April 1st 1868, giving him the money. Brady brought suit against the firm in September 1869. Isaac E. Hiester died in February 1871. In October 1877, the death of I. E. Hiester was suggested, and his executors substituted. The case was then tried, and Brady, having offered himself as a witness, wras rejected by the court, Livingston, P. J.</p> <p>This was among the errors assigned by Brady, who took this writ.</p>

<p>1. A corporation has no vested right to a remedy for the assessment of damages for land taken for its purposes, and the legislature may alter such remedy, or substitute a new one, provided there is no interference with the company’s franchise or the citizen’s right.</p> <p>2. Whatever belongs merely to the remedy adopted for the acquisition of a right may be altered according to the will of the state, provided the alteration does not impair the obligation of a contract, and such result is not worked when a substantial remedy is left to the parties according to the ordinary course of justice.</p> <p>3. By the Act of April 10th 1867, the Pennsylvania Railroad was authorized to straighten its.traek. Viewers were appointed, under the provisions of the Act of March 27th 1848, to assess the damages. This latter act embraced no right-to appeal from the assessment, and there were no other acts giving this right as against said company until the Act of June 13th 1874, which gives an appeal to either party. The court below held that as there was no provision for appeal applicable to said company until 1874, and as the company had not accepted the benefit of any legislation under the new constitution, the Act of 1874, in so far as it applied to the Act of 1848, was unconstitutional, and struck off the appeal. Held, that this was error, as the provision of the Act of 1874 was merely a change in the remedy and did not impair any franchise of the company.</p>

<p>Appeal from the Court of Common Pleas of Lancaster county:' Of May Term 1878, No. 67.</p> <p>Appeal of Adam K. Witmer from the decree of the court, Livingston, P. J., upon exceptions filed to the report of the auditor to audit the accounts of appellant as the trustee of David Conyngham.</p> <p>The facts are sufficiently set forth in the opinion of this court.</p>

<p>Error to the Court of Common Pleas of Lancaster county: Of May Term 1878, Nos. 96 and 97.</p> <p>Attachment-execution issued by Bair & Shenk and Samuel Groff, to use of Bair & Shenk, against John K. Barr, defendant, and the Farmers’ Mutual Fire Insurance Company of Pennsylvania, garnishee. The garnishee pleaded nulla bona.</p> <p>On May 31st 1867, John K. Barr signed an application for an insurance in the defendant’s company for $4000 on his house and furniture. The application was for a policy for the term of three years, from May 31st 1867, at noon, and was approved by the company and duly issued. In the fall of 1869 G. H. Hendrickson, who had become the agent of the company, made a survey of Barr’s property, for the purpose of insuring other buildings which he owned, and about the 1st of May 1870, Barr signed an application for the term of three years, the policy to include the buildings theretofore insured and others, the whole amount of insurance being $8800. This application and the premium, $48.80, Barr handed to Hendrickson, who gave him a receipt, which set forth, “that he will be'insured upon the property specified in said application, $8800, for three years from date, if the same be approved by the direc,tors.” On May 6th 1870, the company issued a policy to Barr, insuring the property designated in his application for the term of three years, from .May 3d 1870. On May 19th 1873, the property was destroyed by fire, and when Barr applied for payment of the loss the company refused, on the ground that the policy had expired.</p> <p>At the trial the receipt of Hendrickson was produced, which bore date May 31st 187 0, but the company alleged that the date was a forgery, contending that the receipt was dated May 3d 187 0, which had been altered to May 31st 1870.</p> <p>Barr testified: “Mr. Hendrickson made a survey of my property in the fall of 1869, for the purpose of insurance. I gave my note for $195.20, and cash $48.80, to effect an insurance which was to run for three years from the expiration of the old policy; the old policy I have not — the one that expired on May 31st 1870; I think I gave that policy to Mr. Hendrickson, and I think he did not make a new survey of the dwelling, but took it from the old policy. I don’t know that he ever gave, it back to me. It is not in my possession. I have no recollection of Mr. Hendrickson ever returning it to me. The old policy expired on May 31st 1870. The new policy was to expire three years from the expiration of the old one, which would be on May 31st 1873. I do not remember the exact day that I called on Hendrickson and gave him the note and paid him the cash to effect the new insurance, but it was some time in the latter part of April 1870. I was at Mt. Joy; Hendrickson called me across the street and reminded me of the expiration of my old policy of insurance; I then asked him whether I could arrange it that day; that I had proposed going away, and would probably not be home on the 31st of May, when the old policy expired. He said that if I was prepared it could be arranged that day. I mentioned to him about and spoke to him of the time of the expiration of the old policy. He said we could date the receipt on the 31st, on the day of the expiration of the old policy. I paid him $48.80, took his receipt for the amount; receipt dated May 31st, the expiration of the old policy. I signed an application without date or being filed — a blank application; I signed a note with the amount without date, with the understanding and agreement that the policy and the note should correspond with the receipt as to date. * * * Mr. Hendrickson did not return the fifty-five cents, or any other sum, for the unexpired term of the first policy from May 3d to May 31st 1870. I got no benefit of any. allowance for that.”</p> <p>Hendrickson, on behalf of the company, testified, in effect, that Barr came to him on May 3d 1870 to make the application, and that it was not in the latter part of April; that witness drew the application on that day, and Barr then signed it; that the date of the receipt had been changed by the insertion of the “1” and the addition of “st;” that these alterations were not in the handwriting of witness; that Barr had received fifty-five cents as an allowance for the unexpired term, and that this was a full return, in proportion to the time the old policy had to run, on the amount insured, according to the rates of the company.</p> <p>On cross-examination, Hendrickson testified:</p> <p>Q. Did you not state to Mr. Barr in presence of H. B. Hertzler, that his policy would soon expire, that he must not neglect it, to which Barr replied in presence of Hertzler, “ Can’t I fix it now, as I intend going away, and will not be home when it is dueto which you replied it could be fixed now, and did not Mr. Barr then give you $50, for which you gave him a receipt, the receipt marked J. B. L. 1. dating it (four weeks ahead), May 31st, in presence of Hertzler, Mr. Barr at the same time signing the. papers which you laid before him ?</p> <p>A. I have no recollection of any such thing. -</p> <p>In rebuttal the plaintiff called H. B. Hertzler, who testified as follows:—</p> <p>Q. Did Mr. Hendrickson state to Mr. J. K. Barr in your presence, that his policy of insurance would soon expire and that he must not neglect it ?</p> <p>A, Yes, sir.</p> <p>Q. Did Mr. Barr answer Mr. Hendrickson by saying, “ Can’t I fix it now, as I expect to be away and will not be home when it is due.”</p> <p>A. Yes, sir.</p> <p>Q. Did Mr. Hendrickson say it could be fixed then ?</p> <p>A. Yes, sir.</p> <p>Q. Did Mr. Barr hand Mr. Hendrickson then in your presence, $50, for which he gave Mr. Barr a receipt ?</p> <p>A. Yes, sir.</p> <p>Shown receipt J. B. L. 1. and asked whether that is the receipt to the best of his recollection.</p> <p>A. Yes, sir, this is the receipt.</p> <p>Q. Was the receipt dated four weeks ahead — May 31st, in your presence ?</p> <p>A. Yes, sir.</p> <p>Q. State whether in your presence Mr. Barr signed other papers there.</p> <p>A. Yes, sir.</p> <p>To all the foregoing questions the defendant objected, on the ground that they Avere leading and not properly rebuttal.</p> <p>The court, Livingston, P. J., allowed them and noted an exception in each question.</p> <p>Bair & Shenk had one judgment in their own right against Barr, and another as the assignees of Groff, Avho had another judgment. The verdict was for them respectively in the sums of $2502.58 and $504.29. The garnishee took this writ and assigned, among other errors, the allowance of the above questions.</p>

<p>Appeal from the Orphans’ Court of Lancaster county: Of May Term 1878, No. 28.</p> <p>Appeal of E. P. Moyer & Brother from the decree of the court, confirming the report of the auditor in the estate of Jeremiah Bauman, deceased.</p> <p>The facts, in evidence, were these: On January 4th 1871, Joseph K. Bauman gave to E. P. Moyer & Bro., with whom he was dealing, the following note:</p> <p>“$1700. Lancaster, January 4th 1871.</p> <p>Ninety days after date I promise to pay to the order of E. P. Moyer & Bro., seventeen hundred dollars, without defalcation, value received.</p> <p>Payable a.t First National Bank. Jos. K. Bauman.”</p> <p>At the same time, as collateral security for the payment of this note, he gave them the following note :</p> <p>“$1700. Lancaster, Pa., January 4th 1871.</p> <p>Ninety days after date, I promise to pay to the order of Jer. Bauman (at) seventeen hundred dollars without defalcation, for value received. Jos. K. Bauman.</p> <p>Credit the drawer</p> <p>Jere. Bauman.</p> <p>Endorsed Jere. Bauman.”</p> <p>On April 6th 1871 (April 7th being a legal holiday), the former note was sent to Lancaster and presented for payment, dishonored and duly protested. The latter note, falling due on the same day, was not protested, and whether payment was demanded and notice given does not appear, except as matter of inference from the acknowledgment of liability and promise to pay, as is to be extracted from the correspondence which took place between Jeremiah Bauman and E. P. Moyer & Bro.</p> <p>On April 6th 1871, Jeremiah Bauman wrote to E. P. Moyer & Bro. the following letter :</p> <p>“ Lancaster, April 6th 1871.</p> <p>Messrs. E. P. Moyer & Bro.</p> <p>dents: I am sorry to say that Joseph was compelled to let his note go to protest to-day, for which you hold mine as collateral. How can I arrange the matter with you, as I am not prepared to pay it right away ? Please let me hear from you.”</p> <p>On this a correspondence relative to the payment of the claim by Jeremiah Bauman arose, and from time to time he wrote letters to E. P. Moyer & Bro., in the following language:</p> <p>July 25th 1871. “J. K. Bauman’s affairs are not yet settled up by his assignee. Before that is done, the amount remaining due you by him cannot be determined.”</p> <p>January 10th 1872. “On inquiry to-day I am informed that J. K. B.’s assignee contemplates making a dividend about the first of April, when you may expect to receive some money on account of your claim. I will not give any notes, but will endorse as heretofore, if it will be of any service to you.”</p> <p>June 22d 1872. “ I received your letter a few days ago, since which I called on J. K. B.’s assignee’s attorney to ascertain when his affairs would be settled. He informed me that about the 1st of September a distribution would be made, when his indebtedness to you will be known. I will then endeavor to arrange the matter with you. At this time it keeps me busy to manage my own affairs, as we are not turning any leather to market yet. Bark is coming in so fast that it keeps me busy to raise funds to pay for it.”</p> <p>April 7th 1873. “I received your letter some days ago. In reply have to say that, having failed in disposing of some property that I offered for sale, with a view of raising funds, I am not prepared to pay anything on J. K. B.’s account; it is as much as I can do to meet my own liabilities at present. I have fifteen shares Lancaster City Eire Insurance stock, par value, $50 per share, which I will exchange with you for the note if you wish it.’</p> <p>Jeremiah Bauman died on the 3d day of October 1875, leaving a will. The executors filed an account of their administration, and at the audit for distribution of the balance a claim was made on the note above set forth, on the ground that the deceased had so acknowledged his liability to pay as to dispense with the necessity of proving demand, refusal and notice. The auditor rejected the claim, being “of the opinion that there is no such clear, absolute and unconditional promise as dispenses with the proof of presentment and notice of dishonor.” To this decision exceptions were filed, but overruled by the court, which confirmed the auditor’s report; whereupon this appeal was taken.</p>

<p>, 1. AVhile it is the undoubted rule, that the sound interpretation and meaning of a statute,, on a view of the enacting clause and proviso taken and construed together, is to prevail, yet' if the principal object of the act can be accomplished and stand under the restriction of the proviso, the same is not to be held void for repugnance.</p> <p>2. The constitution of a relief association provided that “ this association shall have for its object the payment to the family of the deceased member of so many dollars as there are members pf the association;” and further, that the assessment “shall be paid to his legal representatives or to such person or persons as he may have designated or appointed in writing. * * * Provided always, that when such member shall leave a widow or children, he shall have no power to deprive her or them of the benefits specified in this article, by will or otherwise, but the same shall be paid to her or them absolutely.” The application of the assured was made in favor of a niece with whose family he was living, but at the time of his death he had a married daughter living apart and independent of him. The court below awarded the fund arising, from the assessment to the daughter. Held, that it should have been awarded to the niece, as the acceptance of the application by the association was a contract on its part to pay the money to the niece on the death of the assured.</p>

<p>Error to the Court of Common Pleas of Lancaster county: Of May Term 1878, No. 4.</p> <p>Assumpsit by Joseph C. Irwin against Adam R. Magraw, administrator d. b. n. c. t. a. of Henry S. Magraw, deceased.</p> <p>The facts are stated in the opinion of this court.</p> <p>At the trial, the defendants submitted the following points, to which are subjoined the answers of the court, Livingston, P. J.</p> <p>1. Under the law and the evidence in this case the plaintiff is not entitled to recover.</p> <p>Ans. “ Under the law and under the evidence, as admitted by the court, we answer this point negatively.”</p> <p>2. The plaintiff has not shown that letters of administration on the estate of H. S. Magraw, deceased, have been granted to the defendant in- the state of Pennsylvania, nor any act of administration by him in that state, and the verdict must be for the defendant.</p> <p>Ans. “ Plaintiff has shown, by the testimony admitted, that letters of administration, de bonis non, were granted to A. R. Magraw, on the estate of H. S. Magraw, deceased, in the state of Maryland. The administrator does not plead a settlement of his accounts and payment, or distribution of the assets of the estate, nor want of assets, and as under the decisions of the Supreme Court, reported in Swearingen v. Pendleton, 4 S. & R. 389 and Evans, Administratrix, v. Tatem, 9 S. & R. 259, and in Dowdale’s case, 6 Co. 46, as well as the decision of this court, in the opinion of my late associate, his Hon. Judge Hayes, filed in this case, after an experience of at least forty years as judge, ‘a suit may be maintained in this state for a debt due from a decedent’s estate, against an administrator who has taken out letters of administration in another state in which the decedent died, when the administrator is found, and service can be had upon him in the state in which such suit is entered, no matter what the intent of the administrator was in going into the state in Avhich suit is brought against him,’ Ave feel bound to negative this point, and say, that the residence of the administrator in another state, Avhen suit is brought against him, and service of the process is had upon him in this state, is no bar to a recovery against him as the administrator in this action.”</p> <p>The verdict was for plaintiff for $1854.26, and after judgment the defendant took this Avrit and assigned for error the answers to the above points.</p>

<p>Error to the Court of Common Pleas of York county: Of May Term 1878, No. 162.</p> <p>Amicable action of dower unde nihil habet by Sarah Leightner against George E. Leightner, by his guardian, Emanuel Herman, and Albert O. Leightner and George D. and Elias Ebert, testamentary guardians of said Albert C. Leightner, to determine the right of the plaintiff, the widow of Samuel E. Leightner, deceased, to her dower in certain land held in common.</p> <p>The following case was stated for the opinion of the court: Michael Ebert died in the year 1868, seised of the premises in question, and leaving a will, dated December 12th 1859, with codicil dated July 14th 1862. Said will, provided, among other things, as follows : “I give and devise to my two grandchildren, Samuel E. Leightner and Albert C. Leightner, children of my deceased daughter, Anna Mary, my farm in West Manchester township, adjoining lands of Daniel Ebert, Martin Ebert, Hough and others, on which the aforesaid George Leightner now resides, containing one hundred and sixty-two acres and one hundred and ten perches; to one-half to each for life, and after the death of either, to his issue in fee-simple; and if either should die without issue then his half to go to the issue of the other in fee-simple; and upon the death of both without issue, then the whole to go to my other heirs; this last devise is subject to an agreement entered into by me which is dated the 22d day of April 1859, with George Leightner, the father of said grandchildren, but is to take effect at the expiration of said lease, or whenever it shall be terminated by any event whatever. I appoint my sons, George and Elias, guardians of the estate which my said grandchildren shall receive from my estate, and their control over said estate shall continue until their wards shall respectively arrive at the age of twenty-five years. Either of my said grandchildren may sell his interest in my estate to the other in fee-simple, with the written consent of my said two sons, or of the survivor of them.” The lease or agreement mentioned in said 'will, entered into between the testator and George Leightner, the father of the said Samuel E. Leightner and Albert C. Leightner was made on the 22d day of April 1859, wherein the testator demised, unto the said George Leightner the said farm for the considerations therein mentioned for the term of nineteen years from the first day of April 1859, unless both of said children should die before the expiration of said nineteen years, &c.</p> <p>The said Samuel E. Leightner was born on the 14th of March 1853, and the said Albert C. Leightner was born on the 24th day of January 1855.</p> <p>The said Samuel E. Leightner was married to the plaintiff in this action, on the 27th of November 1874, and had a son born to him, and died on the 4th day of September 1876, leaving to survive him his widow, Sarah Leightner, the plaintiff, and his son, George E. Leightner, of whom the said Emanuel Herman was appointed guardian.</p> <p>The said Albert C. Leightner is- still living and is unmarried.</p> <p>If the court be of opinion that the said Samuel E. Leightner,the husband of the plaintiff, died seised of an estate in fee-simple, in said premises as tenant in common with the said Albert C.</p> <p>' Leightner, then judgment for the plaintiff for the one-third of the rents, issues and profits of the undivided one-half of said farm, and if not, then judgments for the defendants.</p> <p>The court entered judgment for the plaintiff, which action was assigned for error by the guardian of George E. Leightner, who took this writ.</p>

118. Ejectment by Catherine Troup against Jacob Troup and others. The plaintiff was the widow of Oliver Troup and claimed the land in question, by reason of its having been appraised and set apart to her under the provisions of the Act of April 14th 1851. The defendants were the heirs of Emanuel Troup.

<p>1. Where a trust estate is conveyed to a volunteer he is bound by the trust, although he had no notice of it, and if the grantee of such an estate, for full value, have notice of the trust, he is bound just as the grantor is bound.</p> <p>2. If property in its original state and form is covered with a trust in favor of the principal, no change in that state and form pan divest it of such trust, or give the agent or trustee converting it, or those who represent him in right (not being bona fide purchasers for a valuable consideration without notice), any more valuable claim in respect to it than they respectively had before such change, and in accordance with this principle equity will follow a trust fund through every transmutation for the benefit of the cestui que trust.</p>

<p>1. Where the intention of a testator is that a fund devised to his grandchildren shall not be expended during their minority, an allowance for the maintenance of said children may be decreed out of the interest, but not out of the corpus of said legacies.</p> <p>2. The mere fact that a mother has maintained her own children, raises in law no implied promise to pay; the presumption is that she did it gratuitously, and in the absence of an express or implied promise to pay her for maintaining them, she is not entitled to be reimbursed therefor.</p>

<p>Appeal from the Orphans’ Court of Cumberland county: Of May Term 1878, No. 189.</p> <p>Appeal of A. B. Sharpe from the decree of the court confirming the revocation by the register of letters of administration granted to appellant, upon the estate of Robert E. Sharpe, deceased, and the issue of letters to Delia R. Sharpe, widow of said decedent.</p> <p>The facts were these: Robert E. Sharpe died childless and intestate in New Orleans, Louisiana, on the 13th of January 1876. He died possessed of certain real estate in Cumberland county, Pennsylvania, part of which was encumbered. Previous to 1869 he had lived in Cumberland county, but in that year went to Louisiana, where he purchased an orange plantation. While in Louisiana he married the appellee, a resident of New Orleans. From 1869 to the day of his death he continued to reside in Louisiana, returning to Pennsylvania occasionally to look after his property here. The decedent left both blood-relatives and mortgage and other creditors in Cumberland county. On May 25th 1876, at the instance of these kindred and creditors, letters of administration on his estate in Cumberland county were issued to appellant by the deputy register of the county. Four months had expired from the death of decedent at the time this application was mhde. No notice was given to the widow, as it appeared to have been assumed that she was not entitled to administer, nor had the appellant any intimation that she made claim thereto until after letters ivere issued to him.'</p> <p>On the 29th of June, following, the appellee entered her caveat against the granting of letters to appellant, and requested a citation to be issued to him to show cause why the letters granted should not be revoked and letters granted to her; which citation was issued and made returnable on the 24th of July. The parties appeared on that day and were heard, and evidence offered and taken; after which the register filed an opinion revoking the letters granted to appellant and issued letters to appellee.</p> <p>From this decision of the register Mr. Sharpe entered his appeal to the Orphans’ Court, on the 10th of August 1876, returnable on the 13th of September, of which appellee was notified by the register, after which the case was heard by the Orphans’ Court, where the action of the register was affirmed, and hence this appeal.</p>

123. Appeal of Kent, Santee & Co. from the decree of the court dismissing the exceptions to the report of the auditor appointed to distribute the fund arising from the sale of the personal property of L. T. Greenfield. The trial was held before McLean, P. J. The facts are stated in the opinion of this court.

<p>The bond required by the Act of April 12th 1875, to be given by an innkeeper Avhen he takes out his license, is security only for damages arising under said act, and does not include damages recovered in a suit instituted under the provisions of the Act of May 8th 1854.</p>

<p>Error to the Court of Common Pleas of Dauphin county: Of May Term 1878, No. 159.</p> <p>Debt by the Commonwealth of Pennsylvania against the Insurance Company,of North America, to recover a balance of taxes on premiums of insurance received by the defendant company.</p> <p>The facts were these: The defendants entered an appeal from a settlement of the account of the Insurance Company of North America with the Commonwealth, made by the auditor-general, in the month of August 1877, charging the company with a tax of eight-tenths of one per cent, (per Act of March 20th 1877,) on the sum of $681,629.57, being the gross amount of premiums received by the company in other states than the state of Pennsylvania, from the date of the passage of that act to June 30th 1877, a period of less than four months; the said tax amounting to $5485.04.</p> <p>The account charged against the company was . . $6746.65</p> <p>The company was credited with payment of the tax on all premiums received in the state of Pennsylvania 1301.61</p> <p>Leaving a balance unpaid, ás per settlement . . $5485.04</p> <p>The 6th section of the Act of 1877, under which the settlement was made by the auditor-general, is as follows :</p> <p>“ That hereafter it shall be the duty of the president, secretary, or other proper officer of each and every insurance company or association, incorporated by or under any law of the Commonwealth, except companies doing business upon the purely mutual plan, without any capital stock or accumulated reserve, and purely mutual ■ beneficial associations whose fund for the benefit of members, their families or heirs, is made up entirely of the weekly or monthly contributions of their members, and the accumulated interest thereon, to make report in writing to the auditor-general, semi-annually, upon the 1st day of July and January in each year, setting forth the entire amount of premiums received by such company or association during the preceding six months, whether the said premiums were received in money, or in the form of notes, credits, or any other substitute for money; and every such company or association shall pay into the state treasury, at the dates aforesaid, a tax of eight-tenths of one per centum upon the gross amount of said premiums : Provided, That said report shall be made under oath or affirmation, and that it shall be the duty of the accounting officers of the Commonwealth to add ten per centum to the account of any company or association whose officers shall neglect or refuse, for a period of thirty days, to-make the said report or to pay into the state treasury the tax imposed by this section.”</p> <p>The declaration was in debt to recover the above balance.</p> <p>The defendants pleaded, first, the general issue ; and afterwards, by consent, on the trial of the cause, two additional special pleas were filed, setting forth that the defendants were -a corporation created by the state of Pennsylvania, authorized to effect insurance against fire and the perils of the seas, and that $5230.05, part of the sum claimed, was a tax of eight-tenths of one per cent, assessed by the auditor-general on $653,757.22, received as gross premiums on contracts of insurance effected and entered into by the defendants in the several other states and territories of the United States of America, between the time specified in the several amounts therein mentioned. And that the said company so received and collected the said premiums, at agencies established in such other states and territories, by virtue of licenses and permissions granted to the defendants by the lawful authorities thereof, to transact therein said business of insurance under the laws of such other states and territories. And that no part of the said sum was received for business transacted or premiums taken within the state of Pennsylvania, nor for insurances on property or effects within the state of Pennsylvania. And that in all such other states and territories the defendants were obliged to and did pay taxes imposed by the laws of such other states and territories while transacting their business.</p> <p>The second special plea was a similar averment as to the remainder of the sum claimed for premiums received outside of Pennsylvania, in the British provinces of New Brunswick, Newfoundland and Canada, amounting to $214.98.</p> <p>The plaintiff demurred to the two special pleas, and on the trial of the issue raised by the general issue on the 11th of March 1878, admitted the truth of the facts set forth in these two special pleas, and the learned judge who tried the cause directed the jury to find in favor of the Commonwealth for the sum of $5989.54, reserving the following points for the opinion of the court:—</p> <p>If the court shall be of opinion that the defendants are not liable for the tax laid by the legislature of Pennsylvania on premiums of insurance received by the defendants in other states of the United States, and within the limits of the state of Pennsylvania, upon contracts of insurance made by the defendants in places without the limits of Pennsylvania and with citizens' of other states, then the verdict shall be set aside, and judgment shall be entered for the defendants.</p> <p>If the court shall be of opinion that the defendants are liable for taxes assessed upon such premiums, then judgment shall be entered for the plaintiffs upon the verdict.</p> <p>Afterward, April 11th 1878, the court below, Pearson, P. J., gave judgment in favor of the Commonwealth on the points reserved and the demurrer to the special pleas, which were argued at the same time, delivering the following opinion:—</p> <p>“The points reserved, in effect, present two questions: 1. Does the sixth section of the act of March 20th 1877, impose a tax on the gross receipts of the defendant corporation, for business done without as well as transacted within the state of Pennsylvania, on which it received money, notes, credits, or any other substitute for money ? And, 2. Can the tax on business done out of the state be lawfully imposed by our legislature ?</p> <p>“ The language of the statute in the present case, imposing the tax, is quite as strong and almost identical with that found in the act of the 23d of March 1866, imposing a tax on the gross receipts of railroads, which was construed by the Supreme Court of the United States, in the Reading Railroad case, 15 Wall. 284, to extend to all receipts, as well on business done within as that without the limits of the state of Pennsylvania.</p> <p>“When the same words, substantially, are used in the Act of Assembly they should receive the same construction; especially when applied to a corporation doing business of a kind where it is more objectionable than that transacted by this company.</p> <p>“The Insurance Company of North America owes its whole existence to the laws of Pennsylvania. It received a perpetual charter from this state in the year 1794, under which it continued to transact its business within this Commonwealth until the 27th day of February 1854, when it was authorized by statute to extend it to any of the states of the Union, or without its limits, giving its contracts the same validity as if made in this state. It is by virtue of the authority contained in that law that the contracts were made on which the present tax is imposed. We cannot doubt but that it was the intention of the legislature, in enacting this statute, to tax all of the receipts of this company, whether arising from contracts made and business transacted without as well as within the state. The design was to impose it on all of the receipts from its business, wherever done.</p> <p>“2. Is there anything in the constitution of this state or of the United States which prevents the imposition of the tax on business done or money due in another state ? It certainly is not a tax on commerce between the states. It is said in the argument that insurance is as necessary to commerce as bills of lading, decided to be protected in 24 How. 169. In that case it was not merely the bill of lading that was exempted, but the gold dust or bullion which it represented. An insurance, although common, is not necessary to commerce. Many strong merchants or wealthy firms never insure. But this very point is decided in Paul v. Virginia, 8 Wall. 168 : ‘A policy of insurance is not a transaction of commerce, it is a mere contract.’</p> <p>“ This tax is much less objectionable than that imposed on the gross receipts of railroads. In many cases they were not incorporated by the laws of Pennsylvania, but were the creation of other states, and barely permitted to pass through this; yet a tax of $76,788 was imposed on the New York and Erie Railway, which only ran about forty-five miles through Pennsylvania, and that was sustained in Erie Railway, 21 Wall. 492.</p> <p>“•The Supreme Court of the United States decided that a tax could not be imposed on goods by the ton carried through Pennsylvania to or .from other states, in the Reading Railroad Company case, 15 Wall. 232, which met my entire approbation; yet held the same company liable to a tax on the gross receipts of freight in the case of the same road: Ibid. 284.</p> <p>“We are unable to see the difference between taxing the freight and the money paid for its transportation; each has the same effect on the commerce between the states, and each state through which the road passes might impose a tax on the gross receipts ad libitum, until the commerce would be wholly excluded, as fully as if imposed on the article carried by the barrel, the bushel, or the ton. The law on both points is too firmly settled to be shaken: 18 Wall. 206; 21 Id. 492. The individual opinion of one lawyer or judge is of no consequence whatever.</p> <p>“It is urged that the business done or obligations held out of the state cannot be taxed. This is not done by a natural but by an artificial person, over which the state has entire control. It is only when the premium is received, or the same secured tb the corporation in the form declared in the act, that the tax is. imposed. Then, in contemplation of law, it comes to the corporation in this state. It is within its power, and considered to be in its treasury.</p> <p>“It may be considered that money at interest, whether secured by note or mortgage, cannot be taxed as such. The state must have jurisdiction of the person or property, and money at interest is not considered as property, except in the state where the owner resides. See reasoning of the court in the Foreign Bond case, 15 Wall. 300, and the principles there laid down.</p> <p>“The same doctrine has been reiterated in many other cases and in different states. A mortgage must be taxed where the owner lives, not where the mortgaged land lies: 19 Md. 13. Yet the state of Pennsylvania has, for nearly forty years, taxed her citizens for money at interest due in other states, and the right has never been questioned. In the language of Chief Justice Marshall, it has jurisdiction of the person. In the present case, the state has full jurisdiction over this corporation, and can tax the money due it wheresoever situated.</p> <p>“ We are of the opinion that the law is in favor of the state on the points reserved, and therefore direct judgment to be entered on the verdict in favor of the Commonwealth.”</p> <p>The defendants took this writ, and alleged that: 1. The court below erred in entering judgment for the plaintiffs below on the demurrer to the special pleas filed.</p> <p>2. In entering judgment for the plaintiffs below on the points reserved.</p> <p>3. In deciding that the defendants below were liable to pay a tax to the Commonwealth of Pennsylvania, under the provisions of the Act of 20th March 1877, on the gross amount of premiums received for all insurances effected in the states and territories of the United States, at agencies established therein, by virtue of licenses and permission granted by the governments thereof to the said defendants to transact their said business therein.</p> <p>4. Because the true intent and meaning of the said act was to impose a tax on the gross premiums of insurance collected and received in Pennsylvania for insurance effected within the said state, and not on gross premiums received and effected without the State of Pennsylvania.</p> <p>5. Because a tax on gross premiums received by the defendants, for contracts of insurance effected outside of the state of Pennsylvania, with citizens of other states and foreign countries, is a tax on the transactions or business of the company with citizens of other states and foreign countries, is within the prohibition of the constitution of the United States, contained in art. 1, sect. 8, giving to Congress the power to regulate commerce with foreign nations and among the several states and with the Indian tribes.</p>

187. In Equity. Appeal of Joseph Johnson from the decree of the court overruling exceptions to and confirming the report of the master, in proceedings commenced by Johnson to restrain Isaac Crow and others from maintaining a ferry over the Susquehanna river at Millersburg, Pennsylvania. Johnson claimed the exclusive privilege of a ferry across the river at Millersburg, and for one mile above and below his residence.

<p>1. The court submitted to the jury first: what was the purpose of a charter of a corporation, and second: whether that purpose had been changed by a supplement to the original act, with a view to perpetrate a fraud on a subscriber to the stock. Held, that this was not error.</p> <p>2. By the supplement to an. act incorporating an iron and railroad company the name of the company was changed, authority was given to purchase and cancel the original stock and the main purpose of the new company was to be that of a general transportation company. Held, that it was a fair question for the jury, whether a combination to change the fundamental purpose of the original act by the supplement and divert the stock of an original subscriber to this new end, was not a fraud upon him, and if they so found an action for the amount of this original subscription could not be sustained.</p>

<p>R. by his will, gave to H. a specific legacy of §2300, but declared that “ if she should die without heirs or children, then the half of all she had or will got out of my estate must be paid back to my other seven children, share and share alike.” After making several subsequent devises and bequests he directed a sale of his real and personal property and the payment of the legacies and the residue to be divided in equal shares among all his children. In making distribution of the residue the court below required II. to give security for the payment of her whole share thereof. Held, reversing the court below, that the contingent qualification did not extend to the whole estate bequeathed to II., but to the one-half only, and that the one-half of her share of said residue should be paid to her absolutely, and the other half on her giving security that the same will be paid over to her brothers and sisters on her death without children.</p>

<p>Appeal from the Court of Common Pleas of Lebanon county: Of May Term 1878, No. 64. In Equity.</p> <p>Bill in equity, filed by John Stephen and Louisa his wife, against Henry Emerick and Susanna his wife and Stephen Boltz, assignee of said Henry Emerick, to compel a re-conveyance to Mrs. Stephen of a certain farm which she and her husband had conveyed to said Henry Emerick.</p> <p>The bill alleged:</p> <p>1. That Louisa Stephen, one of the plaintiffs, inherited from her father about ninety-two acres of land in Lebanon county, subject to a dower, during her mother’s lifetime, of $1334.</p> <p>2. That on April 10th 1873, after the title to the same had vested in the said Louisa, a verbal contract was entered into with Henry Emerick, one of the defendants, to exchange the above real estate for what was known as the Maulfair Mill property, containing about six acres, clear of all encumbrances, except as hereinafter mentioned; and that afterward conveyances were respectively executed and delivered.</p> <p>3. That at the' time this verbal contract was made, and afterward, when the conveyances were executed and delivered, a mortgage executed by Emerick for the payment of $4100, was resting upon said Maulfair Mill property, and tract of about forty-seven acres of land, of which the said Louisa obtained nearly seven acres, with the mill thereon erected, the whole being together and constituting one tract, which mortgage, held by Amos Long, had been duly recorded; of which mortgage the said Louisa, however, had no knowledge, but her husband had.</p> <p>4. That said verbal agreement required the said Henry Emerick to make a good title, clear of all encumbrances, to said Maulfair Mill property, containing six acres, to the said Louisa, her heirs and assigns, except the sum of $1334, which was to remain on the property as a set-off to the dower which rested on the property of the said Louisa during the lifetime of Louisa’s mother; that John Stephen, the husband of Louisa, knew of the existence of this mortgage, and also that it was not removed when the conveyances were made, but Emerick had promised him that he would do so as soon as he had the title to Louisa’s property; that he would'then be better able to do so, because he could give the property-thus acquired as additional security; that Stephen believed Emerick would do this, except the sum of $1334, which was to remain thereon as a lien as aforesaid, otherwise he would have informed his wife of this lien, and refused to make title to said Emerick.</p> <p>5. That after said conveyances were'executed and delivered, said Emerick did not remove any part of said mortgage.</p> <p>6. That Amos Long, the mortgagor, has commenced proceedings to foreclose his mortgage, and that the plaintiffs believe it will take the whole property mortgaged to pay said mortgage, with interest and costs.</p> <p>7 and 8. That the said Henry Emerick and wife, while the former still held the title to the property conveyed to him by the said Louisa and her husband, to wit, on the 9th day of April 1874, did execute a voluntary deed of assignment for the benefit of creditors of all his property, real and personal, to Stephen W. Boltz, which was duly accepted by him; that said assignor is wholly insolvent, and that said deed of trust was duly recorded.</p> <p>The bill prayed: 1. That the court will order and decree that the said defendants, on receiving a reconveyance of the title of the plaintiffs to the property which the said Louisa acquired by the aforesaid conveyance, shall reconvey to her and her heirs and assigns the property which the plaintiffs conveyed to the. said Henry Emerick, so that the said Louisa may hold her estate as she held and enjoyed it before the plaintiffs made said conveyance, and that said contract of exchange under which the conveyances were made be wholly cancelled and annulled. 2. For a preliminary injunction to restrain said Stephen W. Boltz, assignee, &c., from disposing of the property until this proceeding is disposed of. 3. 'Greneral relief.</p> <p>The answer set forth:</p> <p>1 and 2. That the parties entered into the said contract of exchange in December 1871; that the $1334 dower-money charged on the land conveyed by the plaintiffs to the defendant Emerick was to be paid by Louisa and applied towards the payment of the Long mortgage aforesaid, which was a lien on the Maulfair Mill property, and other land of said Emerick, as stated in plaintiffs’ bill; that the balance of said tract not conveyed to the said Louisa, the said Henry Emerick afterwards conveyed to Daniel Emerick, who was to assume the payment of $2000 of said mortgage, and the balance thereof, to wit, $760, the said Henry Emerick agreed to pay. That said verbal contract was entered into in December 1871, and that a short time thereafter said Emerick met the said plaintiffs, when such verbal contract was fully explained to her, and that she assented and agreed thereto, and soon afterwards entered into the possession of said mill property, and that they still occupy the same.</p> <p>3. That said verbal contract for the exchange of properties was entered into in December 1871, and possession taken of the properties exchanged in the spring of 1872, and that the conveyances consummating said exchanges were made and delivered on the 10th of April 1873; that said Emerick did execute a mortgage, to wit, on the 10th day of April 1870, to Amos Long, for the payment of $4100, which was entered of record, and rested upon the said forty-seven acres of land, of which part was conveyed to the said Louisa as aforesaid; that the same was to be paid and satisfied, as hereinbefore stated, of-all of which the said Emerick believes the complainants were both fully cognisant.</p> <p>4. That it was agreed that the Long mortgage should be paid off or satisfied in such a way as to relieve the Maulfair Mill property and the land thereto belonging from the lien thereof; that to do this, it was expressly understood that the said Louisa should pay $1334, which was to be applied in the manner hereinbefore stated; that the plaintiffs having neglected and refused to pay said sum, the arrangements to remove said mortgage from the mill property failed; that if that sum had been paid by plaintiffs it would have been removed; that the defendant, Emerick, never agreed to remove said mortgage in any other way, and that it was the plaintiffs’ fault that it never was removed.</p> <p>The bill and answer were referred to a master, who, after reporting the facts, concluded as follows :</p> <p>“ I am clearly of the opinion that Louisa knew nothing of the encumbrance on the mill property at the time the contract was made and the deeds were executed and delivered, and that neither Emerick, nor her husband, disclosed to her the fact of such encumbrance on the mill property, but that the fact was concealed from her in order to get her to execute the deed; that the failure on the part of the defendant to disclose the fact of the existence of the mortgage and concealment thereof, by and through which she exchanged her farm for the mill property, was a fraud upon her, and under all the circumstances and facts connected with the case, the conveyance made to defendant should be rescinded. I am also of opinion that she executed and delivered the deed through a misapprehension of the facts, she being under the impression that she was getting a clear title to the mill property for her farm, excepting the third charged on the same, and all that was required of her was to give a mortgage to secure the payment of the third, and after the death of her mother one-half of which belonged to her, when in truth and fact she got nothing for her farm.”</p> <p>He then recommended that the conveyance be rescinded, and that Emerick and wife and Boltz, the assignee, be compelled to reconvey the property to Louisa Stephen.</p> <p>The court, Henderson, A. L. J., on exceptions filed to this report, set aside the same, and dismissed the bill in an opinion, inter alia, saying, “ The master erred—</p> <p>“ 1. In finding that Mrs. Stephen knew nothing of the mortgage. She had by the record constructive notice. Her husband had knowledge and notice direct and unequivocal. He was her agent. This was actual notice, to every intent and purpose of the law.</p> <p>“ 2. In finding that the fact of the encumbrance ‘ was concealed’ from her ‘by Emerick,’ or by ‘both him and Stephen.’”</p> <p>The language of this court, on this finding, appears in the opinion of this court.</p> <p>From the decree dismissing the bill, this appeal was taken.</p>

<p>Error to the Court of Common Pleas of Lebanon county: Of May Term 1878, No. 127.</p> <p>Debt by Rosenberger, Light & Co. against the Washington Mutual Fire Insurance Company, to recover the amount of a policy of insurance in said company.</p> <p>The defendant company was incorporated by Act of Assembly of April 2d 1860: Pamph. L. 770. The first section of this-act authorizes the company to make by-laws for the management and regulation of its affairs. Sect. 4 provides that all persons insured shall be members in accordance with its by-laws during the period for which they shall remain insured. By sect. 5 all corporate powers are vested in and shall be exercised by a board of thirteen managers; and sect. 8 is as follow's: “ That in case of loss by fire the managers shall have power to levy and assess the amount of said loss upon the persons insured in this corporation, pro rata, according to the amount or value of property insured by each respectively.”</p> <p>The plaintiffs made application for insurance in this company on the 4th of April 1868, and on the same day a policy of insurance was issued to them for the sum of $5250, covering their foundry and other property, as specified in the application and policy. The application contained the following agreement signed by the plaintiffs:—</p> <p>“For value received, and in consideration of a policy of insurance to be issued by the Washington Mutual Insurance Company, at Lebanon, upon the approval of my application for insurance in said company of this date, I promise to pay the said company such sum or sums of money, and at such time or times, as the board of managers of said company may, for the purpose of paying losses by fire and the necessary expenses of the said company require; payable within sixty days after notice and demand.”</p> <p>An assessment, known as No. 5, was laid, to pay losses, on the 29th day of April 1871. Notice of this assessment was given to the members of the company'. It was admitted by the plaintiffs that this notice was received by them and that they neglected to pay the assessment.</p> <p>The property insured was destroyed by fire on 17th January 1872. This was on Saturday. On the Monday following the plaintiffs offered to pay the assessment. The company refused to receive it, and declined to pay the loss, on the ground that the policy was forfeited or suspended.</p> <p>The actual liability or indebtedness of the company on the 29th April 1871, when the said assessment was laid, 'was $2305.48, and it appears that this assessment yielded $4950.34.</p> <p>On the part of the plaintiffs it was alleged, and not controverted, that the loss was entire, and that under the charter, if they recovered they were entitled to the full amount of the insurance. It was further contended, on their behalf, that assessment No. 5 so far exceeded the amount required to meet the proper and legitimate expenses, indebtedness and losses of the company, as to render it illegal and void, and that therefore its non-payment did not of itself prevent a recovery in this case.</p> <p>The plaintiffs submitted several points embracing this proposition, and the court, Henderson, A. L. J., in answer thereto, inter alia, said, “ This question is a serious one, and for the present we instruct you, pro forma, that the neglect or failure to pay the said assessment, does not defeat the plaintiff’s right to sustain this suit. But we shall reserve the question for future consideration, so that we may enter judgment as we shall hereafter determine the law to be, notwithstanding the verdict.”</p> <p>The verdict was for the plaintiff for $6992.12. Subsequently the court, in an opinion on the reserved point, inter alia, said, l' We are of the opinion that assessment No. 5, was a legal and valid assessment, acquiesced in by the members of the company, not questioned even by the plaintiffs, at any time prior to their loss, and only subsequently, it would seem, as an afterthought, the case having been twice tried before any allegation was made of the invalidity of the assessment. The conduct of the plaintiffs, in this respect, is palpably inexcusable and without justification, and cannot and should not shield them from the consequences of their own default and neglect. They were members of a mutual company whose board of managers made an'excessive assessment; surely they had a remedy; it was their duty to have it corrected, to prevent its collection from their fellow members, at least to have spoken. Can it now be said, in equity or in fair dealing, when their company, by their representatives have collected it from their fellow members and appropriated it, without objection or complaint, in the face of an accepted legal notice and demand? We think not.</p> <p>“We therefore decline to enter judgment on the verdict. And judgment is entered for the defendant on the reserved question non obstante veredicto.”</p> <p>The plaintiffs took this writ and assigned this action for error.</p>

<p>Error to the Court of Common Pleas of Adams county: Of May Term 1878, No. 10.</p> <p>Assumpsit by George I. Schriver against Elijah Eckenrode, to recover the value of the difference between the actual and the represented quantity of a certain tract of land.</p> <p>The facts are sufficiently stated in the opinion of this court.</p>

51. Case by Mary A. Saylor against the city of Harrisburg, to recover damages for the death of her husband, which the plaintiff alleged' was occasioned by the use of defective machinery in the construction of the city waterworks, upon which the deceased was engaged at work at the time of his death.

<p>The Act of February 19th 1849, in terms authorizes compensation for damages purely consequential, and in estimating under said act the damages arising to a landowner from the construction, through his land, of an improvement by a railroad or canal company, the consequential damages resulting necessarily from the construction of said improvement are to be considered and not only those which are direct and immediate.</p>

133. This was an attachment-execution issued upon a judgment against Zachariah Yenter in favor of Herman Lorenz, and in which George B. Orlady, the counsel of Yenter, was summoned as garnishee. On January 19th 1877 six judgments were entered against Yenter, the last two being in favor respectively of Samuel Hemphill and the plaintiff, Lorenz.

<p>1. A husband, before the Act of 1848, received a legacy due his wife. He subsequently conveyed property to her without consideration, which they afterwards sold, and.the proceeds of which were invested in other land, the title to which was taken in his name. This was also sold, and a note for part of the purchase-money given to them jointly; in a feigned issue to determine the ownership of the note the court submitted the question of her interest, and its extent, to the jury. Held, not to be error.</p> <p>2. Whether the husband was entitled to the note by survivorship not decided.</p>

<p>Error to the Court of Common Pleas of Blair county: Of May Term 1878, No. 149.</p> <p>Case by Thomas Fries against the Pennsylvania Railroad Company, to recover the value of certain household goods, which were burned in the cars of the company "while in transit on its road.</p> <p>When the goods were shipped, the plaintiff gave the company a release as follows: “That the said company shall be and hereby is fully released and discharged from all liability for loss, damage, delay, or otherwise whatsoever to said articles, and it is agreed that no claim or demand whatsoever, shall be made, under any circumstances whatever, on the said company, for or by reason of any damage, loss or delay, and that all such risks are assumed by the shipper.”</p> <p>The other material facts are stated in the opinion of this court.</p> <p>The defendants asked the court below, Dean, P. J., to instruct the jury that there was no evidence of negligence on their part, which the court refused to do, and submitted the question of negligence on all the facts of the case. The verdict was for plaintiff, and the defendants then took this writ and assigned this action of the court for error.</p>

<p>Appeal from the Court of Common Pleas of Huntingdon county: Of May Term 1878, No. 178.</p> <p>Appeal of J. R. Durborrow from the decree of the court dismissing his appeal from a taxation of costs by the prothonotary.</p> <p>The facts were substantially these: In Durborrow’s Appeal, 3 Norris 404, wherein the Supreme Court reversed the decree of the court below, the opinion of the court concluded in these words, “ The costs, including those collected on the writ of assistance, to be paid by the appellee.” Upon the return of the record to the court below, Durborrow, the appellant, filed the following bill of costs, which was taxed and allowed by the prothonotary:</p> <p>Drawing demurrer, . . . . $ 4 32</p> <p>Printing demurrer, 4 pages, . . . 6 00</p> <p>Drawing answer, .... 36 08</p> <p>Printing answer, 18 pages, . . . 27 00</p> <p>Drawing interrogatories, ... 5 66</p> <p>Printing interrogatories, . . . 6 00</p> <p>Printing defendant’s paper-book,. . 109 00</p> <p>$194 06</p> <p>Musser, the appellee, excepted to this taxation, whereupon the prothonotary retaxed the same and allowed the items for printing the demurrer, answers and interrogatories, but disallowed those for drawing the same, in an opinion saying, “ The items in the bill of costs for drawing the demurrer, answers and interrogatories, are stricken out because there is no rule of this court and no rule among the equity rules of the Supreme Court, allowing them. And further, it is the. opinion of the prothonotary, on examination of the authorities and old equity fee-bill cited, that the right of the defendant to costs for drawing his demurrer, if it ever existed under the practice in this county, is abrogated by the adoption of the new rules in equity practice of May 27th 1865. Prior to the adoption of these rules, as I understand it, the proceedings were filed in writing, and the party was allowed his costs for drawing them; but now the answer, &c., are required by the new rules to be printed, and the party is to be allowed his costs for printing, instead of drawing answer, &c. If this view of the case is correct, he would not be allowed for both printing and drawing his papers. Rule No. 14, mentioned, allows the costs of printing, and therefore costs taxed for drawing are stricken off. The item of $109 for paper-book is not allowed. No rule or authority under which it could be allowed was brought to the attention of the prothonotary, and it was principally claimed by defendant’s counsel, before the prothonotary, as an item allowable, not under any rule or authority, but in the discretion of the court, which discretion the prothonotary does not think he has the right to exercise.”</p> <p>The appeal of Durborrow from this taxation of costs was dismissed by the court below, and the taxation confirmed, when this appeal was taken, and this action of the court assigned for error.</p>

<p>Error to the Court of Common Pleas of Blair county: Of May Term 1878, No. 131.</p> <p>Case by John Manning against the Pennsylvania Canal Company, for the detention of his boat while navigating the canal of defendants.</p> <p>The plaintiff alleged on the trial, that the Act of 16th of May 1857, authorizing the sale of the Main Line to the Pennsylvania Railroad Company, required the purchaser “to keep up the canal from Holidaysburg to Philadelphia in good repair and operating condition;” and also that the Act of 3d May 1864, authorizing the sale of said canal to the defendants, imposed the same condition upon them, and further required them “to keep said canal in good navigable condition during the navigation season.” The plaintiff contended that defendants had not so kept up their canal, and that at various points during the season, he was with his boat, mules and hands detained in consequence of the bad condition of the canal.</p> <p>The other material facts are stated in the opinion of this court.</p> <p>The 10th point of the defendants was as follows:—</p> <p>“ The obligation imposed upon the defendants by the Act of 1857, did not require them to alter, enlarge, deepen, or otherwise improve the canal, and as the detentions complained of by the plaintiff on tl)e Juniata Canal could not have been prevented without such alteration, enlargement and deepening, the defendants are not responsible.’</p> <p>The answer of the court (Bucher, P. J., of the Twentieth Judicial District), was:</p> <p>“ The Act of 1857 clothed upon the defendant the duty of keeping the canal in navigable order; if it was not in navigable order at the time of the purchase it was the duty of the defendant to put it in that condition as soon as it reasonably could, taking into consideration the magnitude of the work and all the circumstances surrounding the particular case; and for further answer we refer to the general charge.”</p> <p>This answer constituted the 11th assignment of error.</p> <p>In the general charge, the court, inter alia, said:</p> <p>“ With reference to the mitre sill, we instruct you that if it was so high that it interfered with navigation, and caused unnecessary detention, the defendants would be liable, even if this defect occurred while the Commonwealth owned the canal.”</p> <p>This portion of the charge constituted the 14th assignment of error.</p> <p>The verdict was for the plaintiff for $208.14, and after judgment thereon defendants took this writ, among other assignments of error, being those noted above.</p>

<p>1. Where an attorney-at-law releases .a judgment of his clients without their knowledge or consent, such release is a fraud upon them and does not discharge the lien of the judgment.</p> <p>2. M. assigned a judgment to H., an attorney-at-law, “ to be held by II. as collateral security for the payment of the claim of B. & K., for which claim I have this day given to the said B. & K. three promissory notes.” This assignment was recorded. H. afterwards gave a release of thisjudgment, the record entry being “ for value received H. releases from the lien of this judgment the real estate of * * * but does not satisfy the judgment.” Held, that this record gave sufficient notice of an implied breach of trust to make inquiry a duty, and a purchaser must be affected thereby, and that a release thus executed did not discharge the lien of the judgment.</p>

<p>Error to the Court of Common Pleas of Blair county: Of May Term 1878, No. 172.</p> <p>This was an action of ejectment, brought by Jacob Kinsel against Daniel K. Ramey, John C. Kinsel, Magdalene Burkhart (formerly Kinsel), and her husband, and Rebecca Stiffler (formerly Kinsel), and her husband.</p> <p>The facts were as follows:</p> <p>George Kunsz, whose will, dated August 18th 1824, was admitted to probate November 17th 1829, was the owner of the lands in dispute. He left to survive him a widow and four children, Jacob, Magdalene, Elizabeth and Anna Maria, married to John Kinsel. His personal property was in part bequeathed to his wife for life, and after her death in equal parts to the children named (Mrs. Kinsel’s share going to trustees, “for her sole use and that of her children”), and in part directly to the children and Mrs. Kinsel’s trustees, the portion held by the latter being again “ in trust for her own sole use and that of her children.” His real estate was devised to his wife for life. “ And after the decease of my wife, in case she survives me, I direct that my plantation on which I live, in Allegheny township, in the county of Huntingdon, aforesaid, containing two hundred and twenty-eight acres, be divided into four equal shares, and appropriated by my executors amongst my four youngest children in the following manner, viz.: The first share or part of my lands I give and bequeath to Christian Gost and Henry Slinglough of Frankstown township, in the county of Huntingdon, and Commonwealth of Pennsylvania, the executors hereinafter named of this my last will and testament, and John Keller, Jr., son of John, of Morris township, in the county of Huntingdon, and Commonwealth of Pennsylvania, in trust for and to the only use and benefit of my daughter, Anna Maria Kinsel, wife of John Kinsel, of Allegheny township, county of Huntingdon, and Commonwealth aforesaid, and the heirs of her body lawfulty begotten, who are to have my dwelling-house, buildings and orchard on her share of the land on which these improvements are, on the north part of the whole tract of land from the sinking run. And provided the said Anna Maria Kinsel lives until one or more of her children arrives at the age of twenty-one years, and she is agreed, I direct that one or more of her sons undertake and perform the trust and duty for their mother, that the said Christian Gost, Henry Slinglough and John Keller are hereby authorized to perform, by this my last will and testament, and the said Christian Gost, Henry Slinglough and John Keller are then to surrender up their trust and settle up their account, if not previously done by them, or the survivor of them, with the Orphans’ Court of the county of Pluntingdon, and be discharged .by the said court from the trust aforesaid. And the said Anna Maria Kinsel is to have her part of the tract of land at the same price as the other parts of the whole tract of land aforesaid, and also a due proportion of timber lands to the same, which land, houses,, buildings and other improvements I bequeath to the said Anna Maria Kinsel under the trust aforesaid, for her own sole use and that of the heirs of her body lawfully begotten, or their assigns for ever.”</p> <p>The remainder of the will designated the tract each child should receive, and afterwards, in 1835, lines were run by William Reed, a surveyor, in accordance with the will, and one-fourth of the whole tract was set off to the trustees of Mrs. Kinsel. In 1837, Magdalene (Gripe), Mrs. Kinsel’s sister, conveyed her one-fourth of the tract to Jacob Kinsel, the plaintiff, and a son of Mrs. Kinsel, the purchase-money being derived from the personal property of George Kunsz. “ In trust, nevertheless, for the use of the aforesaid Anna Maria Kinsel, and her children, according to the estate given them, collectively or severally, in and by the bequest of personal property aforesaid, as contained in the last will and testament of the aforesaid George Kunsz, deceased, they, the said Anna Maria Kinsel and her children, to have and to hold the same, estates and interest, in the land hereby conveyed, to which they are entitled to the trust money hereby invested in the said land under and according to the provisions of the last will and testament aforesaid, and special reference is hereby made to said will to ascertain and fix the interests and estates hereby conveyed to the said Jacob Kinsel, in trust for the use of the said Anna Maria Kinsel and her children so far as respects the rights of the said Anna Maria Kinsel and of her children as between themselves.”</p> <p>Mrs. Kinsel had four children, Jacob the plaintiff, Magdalene (Burkhart), Rebecca (Stiffler) and John, three of the defendants.</p> <p>In 1868 Jacob Avas adjudicated a bankrupt, and his assignee conveyed to Daniel K. Ramey, another defendant, all Jacob’s interest in the lands in suit. In 1876, Mrs. Kinsel died, without having barred the entail created by the avíII, and Jacob thereujoon claimed title as heir in tail to the one-fourth originally surveyed to her in 1835-, and under the deed of 1837, to the undivided one-fifth of the tract conveyed by Madalene Gripe. It Avas conceded, that one undivided fifth part of the latter tract vested in Jacob By the deed, passed to his assignee, and was properly conveyed to Ramey.</p> <p>The court (Dean, P. J.) directed a verdict for the plaintiff for the undivided, one-fourth of the undivided one-fifth of the Gripe tract, and for the whole of the other tract, subject to the opinion of the court on the folloAving reserved point of defendants:</p> <p>“ That as to the one-fourth of the real estate surveyed off to Anna Maria Kinsel by William Reed, the legal title being devised to trustees for the use of Anna Maria Kinsel, a married woman, and for the heirs of her body, and there being no union of the legal and equitable estate, the rule in Shelley’s case does not apply, and under the will, an equitable life estate in the one-fourth vested in Anna Maria Kinsel, and a legal estate in her children.”</p> <p>Judgment Avas subsequently entered for the defendants, non obstante veredicto, upon this point .the court holding that, under the Avill, Mrs. Kinsel’s trastees had no duties to perform in reference to her heirs, and that the estate limited to the latter became at once an executed legal estate under the Statute of Uses or in the language of the opinion :</p> <p>“ The trust then to Mrs. Kinsel being active, the use was not executed by the statute, and she had but an equitable estate for life; the trust as to the heirs being passive, the estate in them became, immediately, an executed legal estate, which they took as purchasers.”</p> <p>To this judgment the plaintiff took a writ of error, assigning the entry of judgment for the defendants on the reserved point.</p>

113. Indictment for forgery, containing two counts founded on the 178th section of the Penal Code of 1860, found at July sessions 1876, for falsely and fraudulently forging and counterfeiting a certain promissory note for $1180, purporting to be made by one Hiram Young, payable to the order of Ida Elizabeth Gibson, on the 1st day of April 1877; and for fraudulently making and signing the name of said Hiram Young to a certain promissory note for $1180, purporting to be made…

153. This was an action of assumpsit brought by James H. Hagerty against Walter Bryant and Daniel Euwer, upon their alleged acceptance of a draft or order drawn, upon them by Gilman T. Wheeler.

<p>If taxes be assessed upon lands held in common and there is a treasurer’s sale thereof, one tenant cannot purchase the entire property at said sale so as to acquire such adverse title as will deprive his co-tenant of his interest therein.</p>

<p>Error to the Court of Common Pleas of Qlearfield county: Of May Term 1878, No. 112.</p> <p>This was a feigned issue tried upon the plea of payment, to determine the right to certain claims and judgments originally the property of John Irvin and of John Irvin & Brothers.'</p> <p>The following facts appeared: John Irvin and John Irvin & Brothers were lumber dealers, in Clearfield county, and in June 1877, were largely in debt. Wallace & Krebs, a firm of attorneys at Clearfield, represented a considerable number of creditors and were endeavoring to collect their claims. Upon June 19th, the following instrument of writing was executed and delivered to them by John Irvin and by John Irvin & Brothers:</p> <p>Curwensville, Pa., June 20, 1877.</p> <p>“Whereas, John Irvin & Bros, are indebted to and owing R. F. Fullerton, George R. Price, Samuel C. Snyder, A. McGarvey, Wm. M. Cathcart, Horace Patchin, E. J. Molke, John B. Rafferty’s estate, Daniel Hartsock, Wm. Lawhead, Bigler, Young & Reed, Joseph Bailey, Rachael Hartshorn, Brown, Roth & Jenks, Robert Mehaffey, John Porter, Jos. Patterson, John G. Lytle, George F. Wardle, C. H. Garden & Co., Oresswell, Lalanne & Co., Grabill & Co., A. Gates, S. J. Gates, Jackson McAbee, Snyder, Harris, Bassett & Co. (Book acc’t), Taylor & Taylor, Reese, Owens & Co., Fitler & Co., certain sums not now definitely ascertained;</p> <p>And whereas, John Irvin & Bros, are unable to satisfy the above-named creditors by a payment in full of their several demands in money;</p> <p>Now, June 20, 1877, for value received we hereby assign, trans-in payment</p> <p>fer and set over to Wallace & Krebs, in trust- of the above named creditors, the judgments and claims as per annexed schedule, all the right, title and interest of us, the undersigned members of the firm of John Irvin & Bros., and of John Irvin individually.</p> <p>John Irvin & Bros.,</p> <p>John Irvin.”</p> <p>To this instrument on June 20th was attached a schedule of the judgments and claims assigned. The words “ in trust” were originally written in the body of the instrument by the scrivener, but erased by him at the request of Mr. Krebs before execution, and the words “ in payment” substituted. Some of the creditors named in the instrument were neither present nor represented. Some assented subsequently to the arrangement, and some neither assented nor refused to assent. On June 23d, Wainwright & Co. entered a judgment against John Irvin, Jared Irvin and'James A. Irvin, the two latter being the “ brothers of John Irvin & Brothers, and upon the same day issued an attachment-execution and attached the claims and judgments which had been assigned to Wallace & Krebs. The assignment was filed in the prothonotary’s office on June 23d at the record of the attachment-execution, but was never recorded in the recorder’s office. This issue was thereupon framed between Wainwright & Co., plaintiffs, and Wallace & Krebs, defendants, “to'test the right of ownership in said judgments,” and on the trial in November the foregoing facts appeared.</p> <p>The court, Mayer, P. J., directed the jury to find for the plaintiffs, and reserved the following question of law : “ whether or not the writing dated 20th of June 1877, executed and delivered by Irvin & Bros, and John Irvin to Wallace & Krebs, was an assignment in trust for the benefit of creditors.”</p> <p>On January 16th 1878 the court delivered the following opinion, entering judgment on the verdict:</p> <p>“On the trial of this cause we instructed the jury to find a verdict for the plaintiffs, subject to the opinion of the court on the ■ question of law reserved, whether the writing dated June 20th 1877, executed and delivered by Irvin & Brothers and John Irvin to Wallace & Krebs, was an assignment in trust for creditors. Being of opinion that this assignment constitutes an assignment in trust for the benefit of creditors, coming within the provisions of the Act of Assembly, and not having been recorded in the county within thirty days after the execution thereof, it is null and void as against the creditors of the assignors, and that the attachment of the plaintiffs must prevail. We, therefore, enter judgment in favor of the plaintiffs upon the verdict.”</p> <p>The defendants thereupon took this writ, assigning for error the charge of the court in directing a verdict for plaintiffs, and the entry of judgment in favor of plaintiffs upon the reserved point.</p>

<p>1. When the owner of a timber tract, in person or by others under him, enters thereon to take out the timber, carries on the business for so long a time and in such manner continuously, from year to year, as to show an actual and permanent occupancy of the tract, with the use thereof, and personal property thereon from year to year, and so that the appearance of the land itself indicates to the assessor that there is an occupation of the same by the claimant for the purpose or business of lumbering, it is seated, and it is the duty of the assessor to so assess it.</p> <p>2. The number, permanency, use and character of the buildings, the property found on the land; and the death of the owner accounting for a short non-user, were facts properly for the jury, in determining the question of an actual, continued and fixed possession.</p>

<p>Error to the Court of Common Pleas of Clearfield county: Of May Term 1877, No. 92.</p> <p>This was an action of assumpsit brought by John Beyer, administrator of Christina Beyer, against Abraham Beyer as defendant, and William R. Dickinson, terre-tenant, to. recover arrears of statutory dower charged originally upon land of Abraham Beyer, after-wards conveyed to William R. Dickinson. The narr. contained one special count setting out briefly the original charge and the chain of title to Dickinson, and counting upon an implied assumpsit by him to pay the annual interest, &c. Plea: Non-assumpsit, with leave, &c.</p> <p>The facts were as follows : David Beyer, husband of Christina, was at the time of his death the owner of the equitable title to a tract of land, the legal title to which was in Hardman Phillips. In 1846, after the death of David, his real estate was divided by partition in the Orphans’ Court and the two purparts awarded to his two sons, Abraham and Henry, the portion allotted to the former being charged with the annual payment of $34.12 to Christina, David’s widow. A balance of purchase-money was due to Phillips, and this sum was paid by Abraham, as administrator of his father, and credit for the payment taken in his administration account, settlement therefor being privately made with the heirs. • Thereupon Phillips and wife, in February 1850, conveyed to Abraham and Henry the legal title to the real estate of which partition had been decreed by the court, without in any way referring to David Beyer or to the proceedings, and in May 1851, Abraham and Henry executed between themselves, upon the back of the deed made by Phillips, a deed of partition of the same real estate, conveying to each in severalty the same land which he had been awarded by the court, but making no reference to the proceedings or to the equitable title of David Beyer. These instruments were duly recorded in May 1851. In January 1857, judgments were obtained against Abraham by Samuel Smith, under which the purpart of Abraham was sold, in January 1861, to William A. Wallace, attorney for‘Mr. Smith. Mr. Wallace subsequently, in 1863, sold to A. S. Dickinson, although the deed was not delivered until October 1st 1869, and the latter conveyed in the year last named to his brother, William R., the defendant named as terretenant.</p> <p>The annual interest due the widow -was paid until 1851 or 1852 by Abraham, after which nothing was paid, and the widow dying in 1866, this suit was brought by her administrator to recover the arrears. The defendant, Dickinson’s 1st, 2d, 4th, 5th and 6th points, with the answers of the court thereto, were as follows :</p> <p>1. There can be no recovery by plaintiff for anything accruing previous to the sheriff’s sale to W. A. Wallace, in January 1861.</p> <p>Ans. “For present purposes we answer this point in the negative, but will reserve the question involved in it for further consideration ; and if we hereafter come to the conclusion that the sheriff’s sale in January 1861 discharged the instalment then due Christina Beyer, we can enter a judgment for the proper amount, as there is no dispute as to the amount which would be due subsequent to the sheriff’s sale.”</p> <p>2. The fact appearing that either W. A. Wallace or A. S. Dickinson was a bona fide purchaser without notice, with deed and chain of title from the legal owner duly recorded, this would give to him and those under him title against the claim of plaintiff, and prevent a recovery by plaintiff in this case.</p> <p>Ans. “ We answer this point in the negative. There is no particle of evidence that either Mr. Wallace or those claiming under him at the time of their respective purchases had ever seen or heard of the deed from Hardman Phillips and wife to Abraham and Henry Beyer; and, even if they had known of that deed, it could not have had the effect of giving them the land free from a charge upon the title remaining of record.”</p> <p>4. There can be no recovery against Abraham Beyer in this case.</p> <p>Ans. “ The plaintiff does not seek to recover a personal judgment in this case against Abraham Beyer, but simply a judgment do terris; that is, a judgment to bind the land upon which this dower was specifically charged. The naming Abraham Beyer as defendant was proper, as he might have evidence of payments to his mother which the other defendant knew nothing of, and his being joined as defendant can work injury to no one.”</p> <p>5. There can be no recovery by plaintiff against W. R. Dickinson under the declaration, pleadings and evidence in this case.</p> <p>Ans. “We answer this point in the negative; if it is meant that there can be no recovery that will bind the land now owned by him. There can be no recovery against him personally.”</p> <p>6. Under the declaration, pleadings and evidence, the plaintiff cannot recover, and the verdict must be in favor of defendants.</p> <p>Ans. “We negative this point.”</p> <p>The court (Orvis, A. L. J.,) instructed the jury to find how many annual payments were in arrear, and the jury having found a sum due since 1852, the court afterwards entered judgment on the verdict for the full amount claimed, discussing the question reserved in the answer to the first point in an elaborate opinion, and holding that the arrears of interest due at the time of the sheriff’s sale were not discharged by that proceeding.</p> <p>The defendant, Dickinson, took this writ, assigning for error the answers to the points and the entx’y of judgment on the reserved point.</p>

<p>. 1. A common-law action does not lie against a railroad for consequential injuries occasioned by the construction and operation of its road.</p> <p>2. A railroad company was authorized by its charter to construct its road to any given point in the town of Warren. It constructed its road on a public street immediately in front of plaintiff's premises, who brought suit to recover damages for the inconvenience and annoyance occasioned thereby. Held, that the discretion of the directors of the company in selecting the route of the road could not be inquired into by the court. Held, further, that in the absence of any express provision therefor in the charter, the company was not liable in damages for the annoyance to a property-owner fronting on a public street so taken, caused by the passage of trains, the cinders and smoke, and the hindrance to the passage of carriages.</p>

<p>1. In ejectment by executors in whom title vested extra the will of testator the defendant is inadmissible as a witness in his own behalf, under the Act of 1869, as to the declarations of the deceased grantor of plaintiffs.</p> <p>2. The rule that one claiming the equitable title to land, as against his vendor, who is rightfully in possession, and to whom the purchase-money has not been fully paid, cannot recover in ejectment, without a tender of such purchase-money first having been made, does not obtain where the vendor, claiming under an adverse title, intrudes upon the lawful possession of his vendee.</p> <p>3. In order that a former ejectment may have force as evidence in a subsequent suit, it is necessary that it should have been not only between the same parties, and for the same land, but also that it should have involved the same title.</p>

<p>Marks found upon an adjoining junior survey cannot control or enlarge the dimensions of an earlier survey, even though the junior survey adopts the lines of the older, but such marks may be submitted to the jury, as evidence tending to discover the actual location of the older survey.</p>

<p>Error to the Court of Quarter Sessions of Northumberland county: Of May Term 1877, No. 280.</p> <p>In the court below this case was heard upon an appeal by the Overseers of the Poor of Limestone towns'hip, from an order of removal made by two justices, directing the removal to that township of two paupers who had become chargeable in, and had been supported by, the township of Chillisquaque.</p> <p>The facts appeared by depositions taken upon the appeal, and were as follows: Isaac Dolby lived until September 1861 with his father, Christian Dolby, in Limestone township, Union county. In that month he enlisted and served in the army until 1865, when he returned to his father’s house, lived with him and in the neighborhood until April 1866, when he sold his property in Pennsylvania and moved with his wife to the west. They lived successively in Freeport, Illinois, where their stay was short; in Morgan county, Missouri, where they remained for a year; in Benton county, in the same state, where they took up a homestead of one hundred and sixty acres, built a house and lived from 1868 until 1871, during which time their son, Christian, was born. In 1871 they removed to Henry county, also in Missouri, and while living here their son Samuel was born. In 1873 they left Missouri and settled in Peoria, Illinois, where Isaac died in February 1875. His widow thereupon came east with her children, and took up her residence with Christian, her husband’s father, who, in 1867, had moved from Limestone township, Union county, to Chillisquaque township, Northumberland county. The children, Christian and Samuel, who are the paupers in question, were supported by their grandfather until October 1875, when he was granted relief on their account by the Overseers of Chillisquaque, and they were supported at the cost of the township from that time until January 1877.</p> <p>On January 17th 1877, the Overseers of Chillisquaque obtained from two justices of the borough of Milton' an order of removal, of which the following are the essential parts: — •</p> <p>“Northumberland county, ss.</p> <p>“To the Overseers of the Poor of Chillisquaque township, in said county; and to the Overseers of Limestone township, in Union county, Pennsylvania.</p> <p>“ Whereas complaint has been made to us, the subscribers, two justices of the peace of the borough of Milton, in the county of Northumberland, by the Overseers of the Poor in Chillisquaque township, in said county, setting forth that on the 1st day of October 1875, Christian Dolby, aged about eight years, and Samuel Dolby, aged about six years, minor children of Isaac Dolby, deceased, and grandchildren of Christian Dolby, senior, then and there actually became chargeable for their support to the said township of Chillisquaque, without the said children having gained a legal settlement within the said township, and remain so chargeable ; and also setting forth that Isaac Dolby, deceased, the father of said children, had his last known legal settlement within the township of Limestone, in Union county, in said state. And whereas we, the said justices of the peace, after a careful consideration of the evidence laid before us, and also of the law of the case, do find the said allegations to be true, and do adjudge the same to be true. * * *</p> <p>“ The 19th section of our Act of 13th June 1836, declares that when a person is liable to become chargeable as a pauper to any district, it shall be law’ful for two magistrates of that county to remove such person at the expense of the district, city or place where he was last legally settled, whether in or out of Pennsylvania. From the digest of statutes of the state of Missouri, published in 1865, we see that a person who has resided there for the space of twelve months next preceding the time of any order being made, has acquired a legal settlement in that part of Missouri where he resided. (See Digest, page 232, sect. 3.) And in the Digest of the Statutes of the state of Illinois, published in 1858, we see that the residence of a person in any county of Illinois, for the space of thirty days immediately preceding such person’s becoming chargeable as a pauper, gives him a legal settlement for said purpose in Illinois. (Digest, p. 187, sect. 12.) And as Isaac Dolby aforesaid, after leaving Pennsylvania resided in Missouri about eight years ; after that again upwards of a year in the state of Illinois, it seems clear to us that he must have gained a legal settlement in both of these western states after leaving Pennsylvania. And now, if the above children are to be removed west at all, we are of the opinion that the burden and expense should not fall upon Chillisquaque township, where these children and their father never had a legal settlement, but that it should be borne, injustice, by the Overseers of the Poor of Limestone township, in Union county, Pennsylvania, where the said Isaac Dolby, the father, had his last legal settlement in Pennsylvania.</p> <p>“We do therefore hereby authorize and require you, the Overseers of the Poor of Chillisquaque township, to remove and convey Christian Dolby and Samuel Dolby, the children of the said Isaac Dolby, to the township of Limestone, in Union county, Pennsylvania, and deliver them, together with this order, or copy thereof, to the overseers of the poor of the said township of. Limestone, who are hereby ordered and required to receive and provide for said children as legally settled inhabitants thereof, until the said children are removed west for said purpose if that be deemed necessary or advisable by said township. As witness our hands and seals at Milton this 17th day of January, Anno Domini 1877.</p> <p>John F. Woleinger, J. P. [l. s."</p> <p>Jno. Miller, J. P. [l. s.]”</p> <p>The order also contained a further discussion of the question of Isaac Dolby’s settlement, and a reference to numerous decisions.</p> <p>An appeal was taken on February 1st by the Overseers of Limestone township, and upon the hearing a motion to quash the order of removal was also made :</p> <p>1. Because there was no adjudication that Limestone was the legal settlement of the paupers.</p> <p>2. Because the order directed the paupers to be removed, and “ to be kept until the children are removed west for said purpose,” which the Act of Assembly does not authorize.</p> <p>3. Because the evidence before the justices disclosed that the settlement of both paupers was outside the state of Pennsylvania.</p> <p>The appeal raised the question of the paupers’ legal settlement, and the court, (Rockefeller, P. J.,) refused the motion to quash and confirmed the order of removal, holding that Isaac Dolby’s last settlement in Pennsylvania was in Limestone township, that while it was possible he had gained a settlement elsewhere, the evidence did not fix with certainty the township or poor district; that the court probably did not have the power to determine the settlement of a pauper in another state, and remove him, and would not do so in any event without clear evidence, which was wanting in this case; and, therefore, since the Act of Assembly required the removal to be to the place of the last legal settlement, whether in or out of the state, the paupers must go to Limestone township, where it was certain their father’s last settlement in Pennsylvania had been, and in which they had acquired a derivative settlement from him.</p> <p>To this ruling the Overseers of Limestone township excepted, and afterwards having obtained a writ of error, assigned for error the refusal to quash and the confirmation of the order.</p>

<p>On the trial of an indictment for arson, evidence of a subsequent distinct criminal act, hut connected in character and purpose with the offence charged, is admissible. ■ '</p>

<p>Error to the Court of Common Pleas of Columbia county: Of May Term 1878, No. 62.</p> <p>Ejectment by John A. Jackson and Elizabeth his wife, in right of said wife; Charles D. Herron and Jane, his wife, in right of said wife; Charles J. Tower and Robert M. Cummings against Eli Stoetzel, for a tract of land in Conyngham township, Columbia county.</p> <p>The material facts are stated in the opinion of this court.</p> <p>At the trial the plaintiff submitted the following points, to which the answer of the court, El well, P. J., is appended.</p> <p>7. That the occupancy of a tract of land unfit for residence and cultivation, by the erection of buildings thereon, and the opening of a coal mine, and the mining of coal, the construction of a road to the premises, and the sale of coal to the amount of at least a hundred tons per annum, to the public in the neighborhood, during a period of fifty years, covering the years for which the tax sales were made, is such a seating of the tract of land as would invalidate a sale for taxes; and also,</p> <p>8. That, if the jury believe the evidence of John Kline, that he went on the land, nearly fifty years ago, making a claim on it, begun to take out coal, erected buildings thereon, continued regularly thereafter to mine coal, and maintained possession to about 1860, also paying all taxes on the land demanded of him, after which last date the land in dispute was occupied by the lessees of the defendant, then the land was not subject to a tax sale, and no title was acquired by the purchaser.</p> <p>Ans. “If John Kline had been the owner of this property, if he had had any color of title to it, then I would hold that the character of the occupancy stated by him and the other witnesses would be sufficient to the making of a seated tract; but, as I look upon the evidence, his entries from year to year and time to time were but so many repeated trespasses; he had no occupancy that would have given him a title under the Statute of Limitations as against the Tower heirs. * * * And, although by the authority of 5 P. E. Smith, in Fellows & Co., if Kline had been assessed with taxes he might perhaps have been compelled to pay them — possibly personally an assessment might have been collected — nevertheless, that of itself would not render the tract a seated tract.”</p> <p>The defendant, among others, submitted the following point, which the court affirmed.</p> <p>That thé evidence of the plaintiffs upon the possession and use of the land of John Kline and others is not sufficient to establish a seating of the land at any time, and particularly not during the years and at the times assessments were made on which the tax sales were had.</p> <p>The verdict was for defendant, and after judgment the plaintiffs took this writ; their sixth and seventh assignments of error being respectively to the above points.</p>

<p>Error to the Court of Common Pleas of Northumberland county: Of May Term 1878, No. 192.</p> <p>The proceedings arose as follows: Joseph W. Cake was the owner of a tract of land adjoining the town of Sunbury, and laid out a portion of it in town lots and alleys, and had a draft of the same made on which the streets were named. A number of these lots were sold, and Ilenry L. Cake, the plaintiff, became the purchaser of thirteen, which constituted a square, bounded on the east by an alley twenty-five feet wide. Each lot was twenty-five feet wide, and extended back from Railroad avenue one hundred and twenty-five feet to this alley. In 1866 the plaintiff built on this square five blocks of two houses each, fronting on Railroad avenue. In 1870 the Philadelphia and Erie Railroad Company needing an additional siding, constructed it upon and along the twenty-five feet alley, by making an embankment upon it from four to seven feet high, where the east side of the square owned by the plaintiff fronts upon the alley, and thereby completely obstructed the said alley and prevented all passage along it, by dr to the said lots. Before and ever since the defendant constructed this embankment and siding, the said alley and the plaintiff’s square of lots were in the borough of Sunbury. By the Act of April 3d 1837, Pamph. L. 170, incorporating the defendant company, they were required to construct their railroad so as not to impede or obstruct the free use and passage of any public road which might cross or enter the same; but in case the railroad should cross or interfere with any existing public road, then the railroad was required to make a good and sufficient causeway or bridge.</p> <p>By sect. 5 of the supplement to this act, which was enacted March 27th 1852, the company obtained the right to change the site of a public road, where necessary, and was required to reconstruct the same in as perfect a manner as the original road, and to pay the damages resulting from the change of location.</p> <p>By the Act of April 14th 1864, the tenth and eleventh sections of the General Railroad Law of February 19th 1849, were extended to this company, whereby it was allowed to occupy a street or alley, provided it made compensation to owners of adjoining property for damages occasioned by excavations or embankments.</p> <p>The Act of July 22d 1864, provided: “That it shall and may be lawful for the Philadelphia and Erie Railroad Company to take and appropriate such property, however occupied, as they may deem expedient for the use and construction of depots, sidings, turn-outs, water-ways, work-shops and other improvements along or immediately connected with their line, that may in their opinion be needful for the prosecution of the business to be done on the said Philadelphia and Erie Railroad. Provided always, that the full amount to be paid for the property so taken shall be assessed, paid for or secured, as provided by the charter of the Philadelphia and Erie Railroad Company, and all laws inconsistent herewith be and the same are hereby repealed.”</p> <p>Under the provisions of the Act of April 14th 1864, viewers were appointed to assess the damages to the property of Cake, who awarded him $5600.</p> <p>The company appealed, and the plaintiff took a rule to show cause why the appeal should not be stricken off, contending that it should be, “because neither of the provisions of the.Act of Assembly, approved the 3d day of April 1837, entitled ‘An Act to incorporate the Sunbury and Erie and Pittsburgh and Susquehanna Railroad Companies,’ in Pamph. L. 1836, 1837, pp. 170-185, by virtue of which the said The Philadelphia and Erie Railroad Company was incorporated, nor of any supplements thereto subsequently passed, nor of the tenth and eleventh sections of the Act of Assembly, approved the 19th day of February 1849, entitled ‘ An Act regulating railroads,’ which were extended’to the said The Philadelphia and Erie Railroad Company by an Act of Assembly approved the 14th day of April 1864, entitled ‘An Act relating to the Philadelphia and-Erie Railroad,’ in Pamph. L. 1864, p. 414, nor of any other Act of Assembly of the Commonwealth of Pennsylvania, give an appeal from the report of viewers appointed to assess damages arising from the construction of the railroad of the said The Philadelphia and Erie Railroad Company, and therefore because the .court-has no jurisdiction of the said appeal from the said report of the said viewers.”</p> <p>This rule the court discharged, and at the trial the company contended that it had never accepted the provisions of the Act of April 14th 1864, and that if it had, said act was repealed by the Act of July 22d 1864.</p> <p>In the general charge, the court, Rockefeller, P. J., inter alia, said:</p> <p>“ It (Act of April 14th 1864) is a special act relating to the Philadelphia and Erie Railroad Company, aind, in my judgment, the weight of reason, and certainly the weight of authority, is that the legislature had no power to enact it without the consent or assent of the railroad company. If the act had been accepted or assented to by the company it would be binding upon them, and if there was any evidence in the case from which you could infer that the company ever assented to the passage of this law, or accepted its provisions, then the court would permit you to make such an inference. I do not know of any evidence in the case whatever, that has a tendency to show that the railroad company ever assented or consented to the passage of this act, or ever accepted any of its provisions after it was passed, and the officers of the company for the time being, whose depositions you heard read, swear that this act never was accepted by the railroad company. * * *</p> <p>“ This being our view of this case, we instruct you, as a matter of law, that your verdict must be in favor of the defendant.”</p> <p>After a verdict in accordance with this instruction, the appellant took this writ, assigning for error, inter alia, the refusal to strike off the appeal and the portion of the charge noted above.</p>

<p>1. A block survey, where all the surveys were owned by one owner, was returned to contain thirty-nine tracts, but with room for only thirty-six whole tracts. In the block, two of the tracts and a part of a third had no land, but where the loss should fall was uncertain under the evidence. The court below held, that in the absence of evidence to indicate a better rule, the preference should be given to the older survey. Held, reversing the court below, that this was error, and that a better rule to govern the determination of the question was that of actual location, as ascertained by calls from other tracts of the same block of surveys, which are fixed by established marks and monuments on the ground of said tracts.</p> <p>2. Per Agnew, C. -J. The rule of dates laid down in the court below is not applicable. In a block survey, where the owner of the block owns all the surveys, which are bounded by paper lines, and he sells in no legal order of succession, it is plain the date rule is without meaning; possibly there may be a case where it must be resorted to in a block of surveys; but its true place is in separate surveys for different owners, where priority of survey necessarily gives title.</p>

<p>Certiorari to the Court of Common Pleas of Northumberland county: Of May Term 1878, No. 164.</p> <p>In March 1873, J. J. Hoagland applied to the Citizens’ Building and Loan Association of Centralia for a loan, and as security therefor offered his father-in-law, Martin Gass. On the execution of a bond and mortgage to the association by Hoagland and Gass the money was paid over to Hoagland. In 1875 Hoagland made an assignment for the benefit of creditors, and appointed Gass his assignee. His assigned property paid but a small portion of his indebtedness, and nothing whatever was paid on the loan. On July 6th 1877 the bond of Hoagland and Gass was entered in the Common Pleas of Northumberland county and execution issued against the property of Gass, which was stayed, and an alias issued to November term. On the 21st of November Gass petitioned said court, setting forth that the association had a judgment against Hoagland for $2000, to February term 1871, in the Court of Common Pleas of Columbia county, and that said association had agreed to release him, Gass, from all liability, as bail on that judgment being fully paid by Hoagland; that Hoagland had paid said judgment ; and praying therefore that a rule to show cause why the judgment should not be opened, &c., might issue. On the same day the rule was granted, and on the 15th of February 1878 the rule as to Gass was made absolute. This action of the court in opening the judgment was assigned for error by the association, which took this writ.</p>

<p>Appeal from the Court of Common Pleas of Union county: Of May Term 1878, No. 91.</p> <p>Appeal of Henry Frick and others, from the decree of the court in the matter of the distribution of the fund arising from the sheriff’s sale of the real estate of John H. Beale.</p> <p>The fund arose from a sale upon a levari facias on mortgage of Hugh P. Sheller, against John H. Beale, under which certain real estate situate in the borough of Lewisburg, was sold by the sheriff on the 2d day of December 1876. As to part of the real estate sold, the terms not being complied with by the purchaser, there was a return made to that effect, and an alias levari facias was subsequently issued, returnable to February term 1877. This writ was afterwards, however, stayed, some arrangement being made by which the property was taken by the purchasers at the sheriff’s sale. The court confirmed the sale to them, and on the 24th day of May 1877, the sheriff paid the fund into court.</p> <p>The balance claimed as applicable out of the present fund in order to satisfy the mortgage of H. P. Sheller was the sum of $1138.57, and as there was no controversy with regard to this amount, it was allowed by the auditor, and was to be paid out of the fund.</p> <p>The application of the remainder of the fund was a subject of dispute. It was contended on one hand that it should go to certain parties intended to be secured by a deed of conveyance, dated January 22d 1876, from John H. Beale and Mary T. his wife, to Henry Frick, for the consideration of $4250, which deed was recorded July 26th 1876, and which, though absolute on its face, it was claimed was really a mortgage.</p> <p>On the other hand it was contended by Sheller that his judgments No. 190, May term 1876, and 191, May term 1876, against said John Beale, both of which judgments were entered on the 27th day of July 1876, should at least receive a pro rata amount of the fund in court.</p> <p>From the testimony before the auditor, the following facts appeared:</p> <p>Prior to the execution of the deed spoken of Henry Frick, the grantee, met A. H. Dill, Esq., upon the street, and after remarking that both Mr, Dill and himself were endorsers for Beale, inquired whether, if Beale made a deed to him to secure his endorsers, the same would be a valid security for them, to which Mr. Dill gave an affirmative answer. The deed was subsequently made and was delivered by Beale to Frick at Beale’s store, in the presence of, and after the deed had been inspected casually by, Mr. Dill. Upon delivering it Beale stated to Frick the purpose for which the deed was made. At the time the deed was made Beale told Frick that its purpose was to secure the endorsements; the endorsers meant being Henry Frick, Philip Billmyer, A. H. Dill, and Thomas Reber. Some endorsements were upon notes in bank, which had been renewed from time to time, and other endorsements were for money borrowed from Charity Lodge, A. Y. M. At the time the deed was made the consideration therein expressed appears to have been about tbe aggregate amount of the endorsements. The deed is dated January 22d 1876, from John H. Beale and Mary T., his wife, to Henry Frick, of a certain two-story brick dwelling and lot of ground in Lewisburg, for the consideration of $4250; was acknowledged on the 22d day of January 1876, and recorded on the 26th day of July 1876.</p> <p>The financial difficulties of Beale continuing, on the evening of the 26th day of July 1876 there was a meeting of his endorsers, Beale and Sheller, at the law office of Messrs. Linn & Dill in Lewisburg. Those present were Philip Billmyer, Henry Frick, Thomas Beber, John H. Beale, H. P. Sheller, A. H. Dill and J. M. Linn. The deed had been placed upon record on the morning pf this same day, and at this meeting Frick declared, in the hearing of Sheller and of all present, that he held the deed for the security of Philip Billmyer in one endorsement; of Henry Frick in two endorsements; of Henry Frick and Thomas Beber in- one endorsement, which was for money borrowed from Charity Lodge; of Thomas Beber in one endorsement; and also for the security of Messrs. Linn & Dill, in a collection wherein they had become liable, and that it was also held for the security of. A. H. Dill in one endorsement.</p> <p>From the evidence it did not appear that Sheller made any objection to the statement of Frick as to how the deed was held. At this meeting Sheller handed over to Messrs. Linn & Dill, as his attorneys, a judgment-note against John H. Beale, dated September 10th 1869 for $3500. There were also two other judgment obligations written, one for Sheller of $1443.88, consolidating two claims he held against John H. Beale, and another for the endorsers, including also the claim of Messrs. Linn & Dill. This latter judgment obligation was for the sum of $3807.63.</p> <p>On the next day, July 27th 1876, these judgment obligations were duly entered by Messrs. Linn & Dill, as the attorneys for the respective plaintiffs, in the Court of Common Pleas of Union county. On July 27th 1876 a trust deed was made by Henry Frick to Philip Billmyer and others, which reads as follows:</p> <p>“ To all persons to whom these presents shall come: I, Henry Frick, of the borough of Lewisburg, county of Union and state of Pennsylvania, send greeting. Whereas, by indenture of John H. Beale and wife, bearing date the 22d day of January 1876, and made between John H. Beale, of the borough of Lewisburg, county of Union and state of Pennsylvania, and Mary T., his wife, of the first part, and me, the said Henry Frick, of the same place, of the second part, they, the said John H. Beale and Mary T., his wife, for and in consideration of $4250, therein mentioned to have been paid to them by me, the said Henry Frick, have granted, bargained, or did grant, bargain and sell all that certain two-story brick dwelling or tenement [here follows description of the property]. Now know ye that I, the said Henry Erick, do hereby acknowledge and declare the said sum of $4250, above-mentioned, to be paid unto the said John H. Beale and wife by me, the said Henry Erick, as aforesaid, was and is the proper money of the Lewisburg National Bank of Lewisburg, Pa.; the Eirst National Bank of Mifflinburg, of Mifflinburg, Pa.; Philip Billmyer, of Lewisburg, Pa.; Charity Lodge, No. 144, A. Y. M., of Lewisburg, Pa.; A. H. Dill, of Lewisburg, Pa., and Thomas Reber, of Lewisburg, Pa., and the name of the said Henry Erick in the said indenture of John H. Beale and wife, bearing date the 22d day of January 1876, is only in trust for them, their executors, administrators and assigns or successors, and that I, my heirs or assigns, shall at any time or times hereafter, upon the requests and at the proper costs .and charges of the said Lewisburg National Bank, &c., their executors, administrators, assigns or successors, convey by a good and sufficient deed the said premises so bargained and sold unto me, the said Iienry Erick, as aforesaid, together with all my estate, right, title and interest thereunto in such manner as by them, the said Lewisburg National Bank, &c., their executors, administrators, assigns or successors shall be reasonably required. In witness whereof I have hereunto set my hand and seal this 27th day of July 1876. Henry Frick, [l. s.]”</p> <p>Said trust deed was duly acknowledged July 27th 1876, and was recorded August 7th 1876.</p> <p>The judgments confessed by John H. Beale to Sheller were based upon debts contracted prior to January 22d 1876, and such was also the case as to the judgments confessed to the endorsers.</p> <p>The finding of the auditor, which will be found in substance stated in the opinion of this court, was overruled by the court, and from this decree this appeal was taken.</p>

<p>1. Where subscriptions are made to the stock of a corporation previous to, and for the purpose of procuring a charter, any conditions annexed thereto, whether written or parol, are void. But after the organization of the company a condition is binding; and ordinarily this is so, though it rest in parol only, where except for such condition the subscription would not have been made, and provided the rights of co-subscribers are not affected thereby.</p> <p>2. Where previous to signing a subscription to stock in a corporation, the defendant objected to signing, for the reason that certain conditions on which the subscription was to be made, did not appear therein, and was assured by the president of the corporation, that these conditions should be considered a part of the contract, parol evidence of these conditions is admissible in a suit on the subscription, and the non-performance of them is a defence.</p> <p>3. Under the General Railroad Law of 1849, before suit can be brought for a subscription, notice of the call therefor must be shown.</p>

<p>1. A. conveyed to B. a lot bounded by streets described upon a plan referred to in the deed, “ together with all the ways, &c.,” belonging to said lot, Covenant was brought for an alleged obstruction in the use of the streets, Held, to be the proper form of action.</p> <p>2. A covenant does not require express words. Any words which show the party asserted in a deed that a matter material to the contract had been done, amount to a covenant that it has been done.</p> <p>3. Covenant of warranty distinguished.</p> <p>4. Bellinger v. Burial-ground Society, 10 Barr 135, also distinguished.</p>

<p>This was an ■ application to the Supreme Court for a mandamus by the Commonwealth, ex relatione Aaron A. Chase, against the several judges o.f the courts of Luzerne county, to compel them to meet and organize the new courts of the new county of Lackawanna, which had been created out of a portion of the old county of Luzerne.</p> <p>The petition set forth that the relator, Aaron A. Chase, is a citizen and tax-payer of the county of Luzerne, residing in that portion which has been designated a new county, called Lackawanna, and that he has a judgment of record in said Luzerne county which is a lien on lands lying in said proposed new county of Lackawanna, which he is'desirous of proceeding to collect; and that he has unliquidated demands against persons residing in said county which he wishes to reduce to judgment.</p> <p>That by virtue of an act entitled, “An Act to provide for the division of counties of this Commonwealth, and the erection of new counties therefrom,” approved April 17th 1878, an application was filed with the Secretary of Internal Affairs, by citizens of Luzerne county, for a division of said county, and the erection of a new county to be called Lackawanna, and commissioners were appointed, who performed their duties under said act; an election was ordered by the Governor and duly had, at which a majority of the votes cast was in favor of the proposed new county, whereupon the Governor issued his proclamation declaring the same on the 21st 'day of August 1878, and appointed officers for the said county.</p> <p>Whereupon, by the requirements of said act, it became the duty of Hon. G. M. Harding, Hon. John Handley, Hon. Wm. H. Stanton and Hon. D. L. Rhone, they being the judges of the several courts of Luzerne county, to meet on the second Monday thereafter, to wit, on the second day of September 1878, and organize the courts of said new county of Lackawanna, fix the number of terms and return days, and do all things necessary in the premises and preside over and hold said courts, the said new county pf Lackawanna belonging by the terms of the said act, to the Eleventh Judicial District, of which the defendants are judges. Yet the defendants have refused and still do refuse to meet and perform the duties aforesaid, or any of them. Whereof, your petitioner is liable to suffer great loss and damage by reason of his inability to know certainly in what court or county, or in what manner to pursue his 'remedies against his debtors.</p> <p>Your petitioner, therefore, prays that a mandamus may be issued to the said G. M. Harding, John Handley, Wm. H. Stanton and D. L. Rhone, commanding them to meet and organize the courts of the said new county of Lackawanna, fix the number of terms and return-days, and do all things necessary in the premises and to preside over and hold the said courts.</p> <p>The material sections of the Act of April 17h 1878, Pamph. L. 17, Purd. Dig. 2102, as applicable to this case, are as follows :</p> <p>Sect. 1. Be it enacted, &c., That whenever any county of this Commonwealth shall attain to a population of one hundred and fifty thousand or more, or that has already reached the same, it may be divided, and a new county erected therefrom, upon consent of a majority of the qualified electors of the proposed new county district voting at an election to be called for such purpose.</p> <p>Sect. 2. Persons desiring the erection of a new county, as aforesaid, shall file in the office of the secretary of internal affairs an application, setting forth the name of the county proposed to be divided, its area in square miles, and the population at the preceding United States census, a particular description of the boundary line of the proposed division, and the distance of the nearest point thereof to the county seat, the name of the proposed new county, the names of the towns and municipalities or parts thereof that will be included, its number of square miles and population; said application shall be signed by, not less than one thousand of the taxable inhabitants of the said proposed new county district, and shall be verified by the oath of not less than six qualified electors.</p> <p>Sect. 3. Whereupon the secretary of internal affairs shall immediately notify the governor and the secretary of the Commonwealth, who, together with the secretary of internal affairs, shall immediately consider said application, and if it shall conform to the constitutional requirements respecting the erection of new counties, they, or a majority of them, shall forthwith appoint three disinterested commissioners, not residents of the county affected, to inquire into and make report concerning the same.</p> <p>Sect. 4. Said commissioners shall be sworn to perform their duties with fidelity, and they or a majority of them shall forthwith cause an accurate survey of said proposed new county district to be made, and establish and mark the boundary line of division of the old county; they shall estimate as nearly as possible the population of the proposed new county district, and within sixty days from the time of their appointment shall file in the office of said secretary of internal affairs an accurate report of all the facts in the premises, together with an accurate map of the proposed new county; if it shall appear from such report that said new county may be established without conflicting with the constitutional provisions as to territory, population, and the nearest distance of the boundary line to the county seat, then the governor shall issue a proclamation ordering an election to be held by the qualified voters of the said proposed new county district.</p> <p>Sect. 11. The governor shall immediately appoint and commission for the new county the necessary county officers, as provided by law, who shall perform the duties, have the power and be subject to the like qualifications as have county officers of this Commonwealth, and shall continue .in office until the next general election, and until their successors shall be duly elected and qualified.</p> <p>.Sect. 13. The judicial, senatorial and representative districts shall, for the time being, remain unchanged; and on the second Monday after the proclamation of the governor establishing said new county, the judges of the several courts of the said county, or a majority of them, shall meet and organize the several courts thereof; they shall determine and fix the number of terms, return-days, and do all things necessary in the premises, up to which time the power, authority and jurisdiction of the officers of the old county over said new county district shall remain unabridged, but from thenceforth shall cease and determine, except as to judges of the courts.</p> <p>Sect. 14. The lien of all mortgages, judgments, mechanics’ liens, verdicts, and all records which shall have been made and entered in the original county, up to and including the day of the organization of said courts, shall not be affected by the establishment of said new county, but to proceed thereon certified copies thereof shall be made by the prothonotary or other proper officer, which shall be entered by the like officer of the new county, and like proceedings had as in the original.</p> <p>On the 6th of September 1878, a rule was granted to show cause why a writ of mandamus should not issue as prayed for, and on the 26th of September 1878, Judges Harding, Handley and Stanton filed their answer, which admitted the facts as set forth in the petition, and then averred, “that our refusal to comply with the apparently plain mandate of the statute referred to by the rélator, is based not upon any desire or thought on our part to avoid the discharge of official duty, but solely and exclusively upon the fact that immediately after the county of Lackawanna was created agreeably to the statute, to which the relator has referred at length in his petition, His Excellency, John E. Hartranft, Governor of Pennsylvania, acting doubtless in pursuance of some proper warrant or authority, or supposed proper warrant or authority, appointed. and commissioned the Hon. Benjamin S. Bentley to be president judge of said county.</p> <p>“We would further add that when the time arrived for the discharge of the duties enjoined upon us by the provisions of the act under which the said Lackawanna county was created, the said Benjamin S. Bentley, having taken the proper oath of office as president judge, pursuant to his said appointment and commission, was present in said county, and, as we are informed and believe, then and there assumed and took upon himself, and still continues to assume and take upon himself, all and every of the judicial duties appertaining therein and thereto, notwithstanding the fact that the statute creating the said county, in plain terms, as it would seem, imposes the discharge of said duties upon us.”</p> <p>A copy of the appointment and commission of Benjamin S. Bentley, dated August 22d 187 8, was appended to this answer.</p> <p>Judge Rhone, of the Orphans’ Court, filed a separate answer, as follows:—</p> <p>“ That so much of the relator’s statement in the second paragraph of his petition as relates to the passage of the Act of Assembly cited by him, and the various proceedings in pursuance of such act, are true; but he alleges as matter of law, that the balance of the relator’s statement, as contained in the second paragraph of his petition is untrue, so far as it relates to the organization of a county called ‘ Lackawanna,’ and the duties of your respondent in the premises, for the reasons following, to wit :</p> <p>“1. That John F. Hartranft, Governor of the Commonwealth of Pennsylvania, has appointed and commissioned Hon. Benjamin S. Bentley, judge of the several courts of the county of Lackawanna, including the Orphans’ Court, as stated by the Hon. G. M. Harding, Hon John Handley, and the Hon. W. H. Stanton, in their answer to the proceeding, and that your respondent is informed and believes the said Benjamin S. Bentley has organized and is holding the said Orphans’ Court of Lackawanna county.</p> <p>“2. That the Act of Assembly cited by the relator does not establish a separate Orphans’ Court in said county of Lackawanna, and that your respondent is not appointed, commissioned, or otherwise authorized by law, to organize or hold any other court than that of a separate Orphans’ Court for the county of Luzerne.</p> <p>“ Your respondent, further answering, saith that for the reasons stated, and none other, he hath refused and still doth refuse, to go to the county of Lackawanna and organize an Orphans’ Court or assist in organizing the other courts thereof.”</p>

<p>Certiorari to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1877, No. 240.</p> <p>On the 8th of May 1875, certain citizens and residents of O’Hara township filed a petition praying for a public road from the Sharps-burgh and Kittanning turnpike to the northern end of Maple street, on the line of the West Penn Railroad, in the borough of Sharps-burg. Viewers were appointed to view- and locate the road as prayed for if it was thought proper. The report of the viewers laid out the road as prayed for, and concluded as follows:</p> <p>“ After endeavoring to procure releases from persons through whose property said road passes, we have assessed the following damages: to Henry L. Dingier, one hundred dollars; to Gotlieb Shrode, fifty dollars; to Mrs. Cabel, fifty dollars; to J. J. Robinson, fifty dollars, and to Anthony Fuchs, one hundred and fifty dollars, said damages to be paid by the petitioners.”</p> <p>This report was endorsed by the court as follows: “ The within report returned and presented in open court, -and thereupon the same is approved and ordered to be filed. The road, when opened, to be thirty-three feet wide.”</p> <p>Subsequently, some fifty citizens filed a remonstrance against the opening of the road, and exceptions to the report of the viewers, which the court at a later date overruled, and confirmed the report, but directed that the order to open the road should not issue until the damages were paid, as provided in the report.</p> <p>On the 14th of July 1877, another petition was presented by thirteen citizens, reciting: “ That it would be difficult and inconvenient for many of the petitioners for said road to pay said damages at present, as many of them are poor people and cannot spare the money necessary to do so. That a portion of said road can be opened without disturbing the property of the, persons to whom damages were awarded in said report of viewers.” And therefore, praying “the court to make an order modifying said order of November 23d 1875, so as to allow an order for the opening of said road to be issued at once, and providing that said road shall not be opened upon the lands of any said persons to whom said damages have been awarded until said damages are paid as provided in said report.”</p> <p>The court endorsed this petition : “And now, July 21st 1877, the within 'petition presented in open court, and on due consideration thereof, the court grant the prayer of the petitioners, and do order and direct the order to open the said public road to be issued at once by the clerk, the said road, however, not to be opened on the land of parties to -whom damages have been awarded by report of viewers, until isaid damages are paid to them, as provided in said report.”</p> <p>The exceptants and the township took this writ, assigning for error the overruling the exceptions to the report of viewers; the order of November 25th 1875, and the last order of July 21st 1877, above noted.</p>

<p>Error to the Court of Common Pleas. No. 1, of Allegheny county: Of October and November Term, 1878. No. 1.</p> <p>Ejectment by Sarah Dodds against Eliza Crosky, for the undivided half of a tract of land. David Crosky, by his will, dated in 1839, made the following provision :</p> <p>“ And it is my desire and will that they aforesaid, Ann Crosky my wife, my daughter Ann Crosky, my daughter Mary Crosky, and my daughter Elizabeth Crosky, and the survivor or survivors of them, shall enjoy the south half of my place, containing fifty acres and allowance (being the balance after the fifty acres I have already conveyed to my son David), situated in Pine township, to hold the same as tenants in common.”</p> <p>At the time the testator, David Crosky, made his wdll he had four daughters and three sons. All are dead except the plaintiff. By virtue of conveyances made during their lifetime, their interest and that of their mother in the south half of the place became vested in David Crosky, their brother. He died, leaving his wife, Eliza Crosky, the defendant, and children to survive him.</p> <p>Eliza Crosky is in possession of the premises, and claims that the clause in the will of David Crosky permitting the testator’s wife and daughters, Mary, Ann and Elizabeth, and the survivor or survivors of them, to enjoy the south half of his place, vested in them a fee-simple, and that their interest having become vested in her husband by conveyances from them, that the plaintiff below has no title to any part of the premises. Sarah Dodds, the plaintiff below, was married at the time her father made his will. She claims that the clause in the will above referred to vested only a life-estate in her mother and sisters in the south half of her father’s farm; and that all of her brothers and sisters except one, David Crosky, having died without issue, that she is entitled to the undivided half of the same as one of the heirs of her father, David Crosky, for which interest this ejectment was brought.</p> <p>The other material facts are stated in the opinion of this court.</p>

<p>1. A legacy is to be deemed vested or contingent, just as the time when it is to take effect shall appear to be annexed to the gift or the payment of it. Where there is no substantial gift, and it is only implied from the direction to pay, the legacy is contingent. But this rule is not to prevail where a contrary intention is to be collected from the words or circumstances.</p> <p>2. The fact that a devise gives an interest which is a contingent one, does not affect the right of transmissibility, unless the contingency is one which affects the capacity of the second taker. \</p> <p>3. A testator gave real estate to his son, and should he die without legitimate issue then the property was to be sold and distributed among his grandchildren. Held, that the representatives of the grandchildren, who died before the son’s death, should share in the distribution with the grandchildren then living.</p> <p>4. Kelso v. Dickey, 7 W. & S. 279, and Hopkins v. Jones, 2 Barr 69, followed.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 79.</p> <p>Case by John Thompson and Elizabeth his wife, in right of said Elizabeth, against Robert H. King, to recover damages for injuries sustained by her from falling into an opening in the sidewalk, at a cellar window of a building of the defendant, on Liberty street, in the city of Allegheny. The opening in the sidewalk was for the purpose of light and ventilation, and was also used for taking in coal. It was about fifteen inches in width, three feet in length and projected from the wall of the house about sixteen inches. It was several feet deep and did not appear to have any cover or guard. Such openings are customary for the like buildings in the city of Allegheny. Mrs. Thompson the plaintiff, a washerwoman, on the evening of the accident was carrying home, assisted by her son, a small lad, a basket of clothes. Mrs. Thompson was on the inside, and in passing the house of the defendant stepped into the above-described opening and thereby received a serious injury. The street was lighted as usual, and there was also a light in a window immediately over the opening.</p> <p>At the trial, before Ewing, P. J., the plaintiffs offered to prove by Mrs. Thompson, the length of time she was unable to work and the expense to which she was subjected from the injury caused by the accident, to be followed by evidence, that for some time prior to the injury the husband of witness had been in bad health and she had been obliged to support herself and family. Admitted under objection. First assignment of error.</p> <p>Also, to prove the amount of the physician’s bill, and that Mrs. Thompson herself employed him, and was liable personally to pay the bill. Admitted under objection. Second assignment.</p> <p>The fifth point of the plaintiffs, and the answer of the court thereto, were as follows:</p> <p>If the jury should be of the opinion that plaintiffs are entitled to recover, they may allow the expenses of the care, including medical attendance and nursing, compensation for the physical and mental suffering caused by the injury, for the loss of time, and for any permanent or continuing reduction of power to earn money.</p> <p>Ans. “ The point is affirmed. If the jury find that prior to the accident Mrs. Thompson had been supporting herself by her own earnings, and that she contracted for her nursing and attendance of physician, otherwise it is refused, except as affirmed in the general charge.” Fourth assignment.</p> <p>The defendant’s second and fourth points and the answers thereto were as follows:</p> <p>2. If the jury find that the area in front of the cellar window was such as was usual and customary in the City of Allegheny, for lighting and ventilating cellars, and reasonably necessary for those purposes, then the defendant is not guilty of negligence or nuisance in maintaining it.</p> <p>Ans. “Refused.”</p> <p>4. If the sidewalk was ten feet wide, and there was a paved space, seven or eight feet wide, between the curb and trees on one side and the cellar window opening or area on the other side, whereon' persons using the sidewalk could pass with ease and safety, and that the way was lighted by a lamp in the window immediately at the opening and by gas lamps in the street, sufficient to enable the plaintiff to have avoided the accident of which she complains, then she is guilty of negligence and cannot recover.</p> <p>Ans. “ The fourth point is refused, with the explanation that to entitle her to recover for loss of time and nursing and doctor’s bill, the jury must be satisfied that the plaintiff, prior to the accident, was supporting herself from her own wages, and that she is personally liable for the doctor’s bill.”</p> <p>The answers to these points constituted the fifth and sixth assignments.</p> <p>The verdict was for the plaintiffs for $2319.75. Defendant asked for a new trial, which the court refused, but required the plaintiff to reduce the verdict to $1200, and judgment was entered for that amount. The defendant then took this writ, and, among others, assigned the foregoing errors.</p>

<p>1. The words “ grant, bargain and sell,” in a conveyance of land in fee-simple, constitute, under the Act of May 28th 1715, sect. 6, a covenant only against acts done or suffered by the grantor. Lessee of Gratz v. Bwalt, 2 Binn. 95, followed.</p> <p>2. The word “suffered,” however, necessarily implies that the covenant is not confined to the voluntary acts of the grantor, and it extends to and includes a tax for a municipal improvement assessed on the land during his title.</p> <p>3. By the terms of the act authorizing a municipal improvement the assessments were declared to be liens from the date of the commencement of the improvement. In covenant by a grantee to recover from his grantor the amount of an assessment paid by the grantee on this improvement commenced before the execution of the deed: Held, that the assessment was a charge on the land suffered by the grantor, for which he was bound to indemnify his grantee. Held, further, that the assessments being liens from the beginning of the improvement, no difference could be made between the work done before and that done after the execution of the deed.</p> <p>4. At the trial defendant offered to show that prior to the execution of the deed, plaintiff was several times on the premises and knew of the improvement going on, and was told by the defendant that the cost thereof would be a lien upon the property, which plaintiff would have to pay, to which plaintiff made no reply. Held, that this evidence was not sufficient to overcome the effect of the covenant as prescribed by the Act of 1715, and was properly rejected by the court.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 2.</p> <p>Case by John C. Porterfield, against Walsh & Anderson, to recover damages for the loss of certain property stolen from the plaintiff while a guest in defendants’ hotel.</p> <p>On the trial, it appeared from the evidence of plaintiff that he came to the hotel of defendants on Saturday, and remained there as a guest until Monday; that when he retired on Sunday evening he had about his clothes his watch, which cost $325, a valuable diamond pin, which cost $600, and which he was in the habit of wearing, and about $15 in money; that upon retiring he bolted or locked the door of his room, it being provided with both lock and bolt, and that upon rising on Monday morning he discovered that he had been robbed of his watch, pin and money.</p> <p>On discovering his loss, the plaintiff sent for one of the proprietors of the hotel, and communicated to him the fact.</p> <p>On cross-examination, the defendants’ counsel elicited a portion of the conversation which then ensued and stopped. The plaintiff’s counsel then insisted that the whole of this conversation should be given, in order to show that the landlord admitted that another guest had been robbed on the same night. It was objected that this was irrelevant, and because the plaintiff had not been cross-examined upon this conversation. The court overruled the objection and admitted the evidence.</p> <p>The defence offered evidence to show that the plaintiff was intoxicated on Sunday when he retired, and also on the Monday morning following; that they had a watchman on duty on the night of the robbery, and a safe provided for the reception of the valuables of guests, and had given notice thereof, as required by the Act of May 7th 1855.</p> <p>The following were among the points of the plaintiff, with the answers of the court, Eetterman, J., thereto:</p> <p>12. That it is not negligence contributing to loss, which will defeat recovery, that a guest having bolted and locked his door, goes to bed intoxicated, and thereby does not hear the operations of a robber on his room door in effecting an entrance.</p> <p>Ans. “That point as stated is affirmed. If he took every reasonable precaution to secure his property, although he may have been drunk, locked himself into his room, and during the night a burglar gained an entrance and robbed him, the mere fact of his being intoxicated would not be any defence.”</p> <p>13. The measure of damages is compensation for plaintiff’s losses, measured by the value of the property and money lost, interest on such values, and a reasonable allowance for necessary expenses and costs attending his efforts to secure compensation from defendants.</p> <p>Ans. “ That point is refused. The measure of damages must be the value of the property — the pin at $600, and the watch at $350, and whatever amount of money he had, and the interest. There is no testimony as to expenses incurred by Mr. Porterfield in attempting to get his property, and you have no right, in the absence of testimony, to assume that he put himself to any expense; and as to counsel fees and such as that he is clearly not entitled to anything. You limit yourself, if you find in his favor, to the value of the property at the time of the loss.”</p> <p>The ninth point of the defendants, which the court affirmed, was as follows:</p> <p>That if the jury believe from the evidence that the plaintiff was intoxicated on the night of the alleged robbery, and that this contributed in any way to his loss, he cannot recover.</p> <p>In their general charge, the court, inter alia, said:</p> <p>“At common law a hotelkeeper, or innkeeper was liable at all events for the goods and baggage of his guests. He held himself out as an innkeeper, and was required by law to receive all persons coming and desiring lodgings, and upon him was imposed the duty of strict care of the property of his guests whilst in his hotel. That law is the same to-day as it was years ago, except where it has been modified by our Acts of Assembly. * * *</p> <p>“It was in fact insuring, as it were, the safety of the property of guests, and it was immaterial (if a loss occurred or property -was stolen whilst the guest was in the hotel) by whom it was stolen, unless it was by the guest’s own servant or a fellow guest of the party who was robbed, or the negligence of the guest; and however vigilant the landlord might have been he was responsible to the party losing the property. That was the common-law liability. He was practically an insurer of the safety of the property whilst the guest remained in his house.”</p> <p>The verdict was for the plaintiff for $883.65, and after judgment thereon the defendants took this writ, assigning for error, inter alia, the admission of testimony, the answers to points, and the portion of the charge above noted.</p>

<p>B. borrowed a certain sum from a bank, and gave his bond and mortgage to secure the loan. He failed to pay, and the bank proceeded to sell, and purchased the property at sheriff’s sale. B. alleged that there was a parol contract between the bank and himself, wherein it was agreed that the bank should sell the property and hold it for the benefit of B., and after the payment of his debt, interest and costs, was to return the balance to him. Held,, that as the bank already had the mortgage upon which it proceeded, and there was no new loan or evidence of other consideration, such contract was not supported by any consideration. Held, further, that this contract was not a parol mortgage but a mere parol agreement, the violation of which did not make the bank a trustee for B. by reason of the purchase at the sheriff’s sale.'</p>

<p>1. A libel may be defined to be any malicious publication, written, printed or painted, which by words or signs tends to expose a pei-son to contempt, ridicule, hatred or degradation of character.</p> <p>2. Art. 1, sect. 7, of the constitution, which declares, “no conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, when the fact that such publication was not maliciously or negligently made, shall be established to the satisfaction of the jury,” refers only to a trial on an indictment for libel and does not apply to a civil action to recover damages.</p> <p>3. Where a newspaper article charges a person with corrupt and mercenary acts as the chairman of the county committee of a political party ; that he is the champion of prostitutes and the lowest grades of criminals; with a wicked and corrupt disregard of his official oath as an attorney-at-law, and also strikes at his integrity as a man and tends to degrade his social standing as a citizen, such an article is per se libellous and is not privileged in its character, and the publishers, failing to establish its truthfulness, are liable for damages.</p> <p>4. Malice in its legal sense means a wrongful act done intentionally, without just cause or excuse, and, every utterance or publication, having the other qualities of slander or libel, if it be wilful and unauthorized, is in law malicious.</p> <p>5. Legal malice alone is sufficient to support an action.</p> <p>6. The fact that the alleged libel renders the defendant liable to an indictment does not prevent the jury from giving vindictive damages in a civil action for libel.</p> <p>7. It was error, for the purpose of .showing malice, to permit evidence to be given, that other articles of similar tenor and character as the alleged libellous one were subsequently published in the defendant’s newspaper, where neither the paper itself containing said articles was produced or any reason given for its non-production.</p>

<p>Where a creditor holds stock, as collateral security for the payment of a promissory note, he is not bound at the maturity of the note and its non-payment to sell the stock, without notice from the debtor directing him to do so.</p>

2, of Allegheny county: Of October and November Term 1878, No. 63. Case by Thomas N. Miller and wife against the Pennsylvania Railroad Company for injury to a carriage of plaintiff, which, it was alleged, was occasioned by defendants’ negligence. At the trial before Ewing, P. J., it appeared that Mrs. Miller purchased a carriage in New York, which was delivered to the defendant at Jersey City, consigned to T. N. Miller, at Pittsburgh.

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county : Of October and November Term 1878, No. 158.</p> <p>Covenant by John F. Mueller, for use of the Rochester Building Association, against the South Side Fire Insurance Company upon a policy of insurance.</p> <p>The South Side Fire Insurance Company was a corporation, doing business in the city of Pittsburgh, under the laws of the Commonwealth of Pennsylvania. On September 17th 1874, it issued its policy for the term of three years from that date, in the sum of $2000. The policy insured a two-story flour mill in Freedom, Beaver county, Penna., belonging to John F. Mueller, but by him mortgaged to the Rochester Building Association, No. 2. By the terms of the policy, it was provided: “ Loss, if any, payable to the Rochester Building Association, No. 2, as their interest may appear.” The premium Avas $180; but instead of paying it in cash, Mueller, by an arrangement with an agent of the insurance company, gave his promissory note for $180, dated September 22d 1874, payable at ninety days after date to the order of the agent. The company received the note and issued the policy. The note, hoAvever, was not paid at maturity, and Avas protested for non-payment. By the terms of the policy, it was provided, inter alia: “ Article 1. * * * If, during the insurance, the risk be increased by the erection of buildings, or by use or occupation of neighboring premises or otherwise, or if, for any other cause, the company shall so elect, it shall be optional with the company to terminate the insurance, after notice given to the assured, or his representative, of their intention to do so; in which case the company will refund a rateable proportion of the premium.” Availing itself of this provision, the company, on March 19th 1875, resolved to and did cancel the policy, and forthwith gave notice of such cancellation to the Rochester Building Association, No. 2, which duly received such notice. No further negotiations or business with relation to the policy took place between any of the parties thereto until after December 13th 1875. At that date the mill described in the policy was totally destroyed by fire. In the meantime, in the Court of Common Pleas of Allegheny county, the insurance company, upon the petition of its stockholders, was dissolved, on August 7th 1875. No trustee, however, was appointed by the court until May 13th 1876. The plaintiff, however, claiming a right to recover under the policy, prepared what purported to be a proof of loss and left it at the private residence of Hugh Lafferty, who, prior to the dissolution, had been the president of the company. It was not denied that he received, but there was no evidence from which a waiver could be implied except Ms silence.</p> <p>The plaintiff’s first and third points were as follows, both of which the court, Kirkpatrick, A. L. J., affirmed:</p> <p>That if the proofs of loss offered in evidence by the plaintiff were received without objection by Mr. Lafferty, who was then the sole executive officer of the insurance company, it is now too late for the defendant to allege want of compliance by the plaintiff with the ninth condition or covenant of the policy ; and if the jury,so find, they may further find a waiver of all objections to the proofs of loss, and in that event need give them no further consideration.</p> <p>An insurance company has no right to deprive a party of his insurance simply because the premium is unpaid. And when a policy, as is the case with the policy sued on, has in it a condition reserving to the insurers the right to terminate the risk at any time on giving notice and refunding a rateable portion of the premium, the return of the premium is an essential part of the condition to be performed and a pre-requisite to the right to terminate the risk. And where there has been a note given for the premium instead of the payment thereof in money, there must either be an absolute tender of the note by the insurer to the insured or a tender upon the terms of paying the insurer the earned part of the premium, or the company must otherwise provide for the return of the unearned premium before any attempted cancellation of the risk will be operative. And if the jury find that no such tender, either absolute or qualified was made by the company, defendant in this suit, to either the legal or equitable plaintiff, and that the note was accepted by the company as payment of the premium, then the alleged cancellation of the policy by the defendant was ineffectual and does not bar the plaintiff’s recovery.</p> <p>The first, third and fourth points of defendant, with the answer of the court, were as follows :</p> <p>1. That if they believe that the defendant corporation was dissolved at No. 566, Sept. Term 1875, by the Court of Common Pleas, No. 1, of Allegheny county, Pa., on August 7th 1875, and that no trustee was appointed by the court aforesaid to settle up the business of said corporation until May 13th 1876, then between the said dates there was in contemplation of law no person having authority to waive any of the provisions of any contract or policy of insurance then in existence; nor under the facts aforesaid could any waiver be implied from the silence of said corporation.</p> <p>Ans. “ Refused as presented; for although he may not have been appointed by the court as a trustee to settle up the business of the corporation, yet if Hugh Lafferty was appointed by the proper authorities of the company as the person to settle up its affairs by whatever name he might have been called, he had authority to do any act or acts within the scope of his authority even to the extent of wmiving any of the provisions of any contract or policy of insurance as fully and entirely as the company itself could have done; and if he in the lawful exercise of such deputed power and authority waived any contracts in the policy of insurance, the defendant company would be bound by his acts.”</p> <p>3. That if they believe the facts stated in the first point to be true, then there is no evidence in the case from which the jury would be justified in finding that the defendant corporation had either expressly or by implication waived compliance on the part of the plaintiff with the requirements of article 9 of the conditions of the policy sued on.</p> <p>Ans. “ Affirmed. The jury, however, will say from all the evidence in the case, that of R. B. Brown, the former president, and a continuing director and others, whether or not Hugh Lafferty was the proper representative of the company, duly authorized to represent it, and if so, a waiver by him would be a waiver by the company, and find accordingly.”</p> <p>4. That if they believe that the defendant corporation, on or about March 19th 1875,‘resolved to and did cancel the policy in suit and gave notice of such cancellation to the Rochester Building Association, No. 2, and that said association received said notice of cancellation prior to the date of the fire, then plaintiff cannot recover.</p> <p>Ans. “Refused as presented. We are of opinion that notice to John F. Mueller v'as also necessary, and a refunding or tender to refund to him or the Rochester Building Association, No. 2, of a rateable proportion of the premium unearned, essential to a proper and legal cancellation of the policy.”</p> <p>In the general charge the court, inter alia, said:</p> <p>“It was in the power of the company, as it is in the power of any company, to accept a note as cash in payment of a premium; or, as I have already intimated, if they see proper in the exercise of their discretion, they may insure without any payment at all; or they can certainly, in our judgment, receive a note as cash for a premium. If, therefore, they receive it, it was essential to their proper cancellation of this policy that they should, in accordance with the terms of one of their own articles alluding to this possibility of cancellation, have returned or tendered to one or the other of these plaintiffs a rateable amount of the unearned premiums. If, therefore, they have not so done, there is no bar in this regard to the plaintiff’s recovery.</p> <p>“ So, too, touching again the question of proofs of loss (we have already answered it in detail in the points), it is enough to say that this insurance company may waive any informality either by long silence or by an agreement to waive the informality, and if the jury find that by any act of this company or its accredited agent and representative, if Mr. Lafferty was such, it waived this alleged informality, then that would not be any bar to a recovery; and if so finding, they find that the fire did occur (which does not seem to be disputed), that the loss did occur, and that the loss was to the full extent of the policy, there ought to be a recovery by the plaintiff in this case to the full amount of the policy, with interest.”</p> <p>Verdict for plaintiff for $2054.09. After a motion for a new trial had been argued and overruled, defendant took this writ and assigned for error, inter alia, the answers to the above points.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 207.</p> <p>Case by Mary Collins and her children against the Pittsburgh, Ft. Wayne and Chicago Railway, and the Pennsylvania Railroad Company, operating said railroad, to recover damages for the death of their husband and father, James Collins, who, it was alleged, was killed by the defendant’s cars.</p> <p>Collins was found dead on the tracks of the defendants’ railroad. The point at which the body was found was not a public crossing, A train had just passed before it was found, and it was evident it had been run over by the train. At the place of the accident the railroad is parallel with and north of Preble avenue, a street forty feet wide. There were three tracks, and from the one on the south a switch ran to a mill at which Collins worked and where he lived. His usual way when going home was to leave Preble avenue at the switch. The body was found beyond the switch. The track was unballasted, and between the second and third tracks there were piles of cinder. There was conflicting evidence as to whether Collins was sober. A city ordinance, which authorized the running of cars along Preble avenue, required that it should be fenced, which had not been done by the railroad company. The other material facts will be found stated in the opinion of this court.</p> <p>The court, Ewing, P. J., in answer to points, and in their general charge, inter alia, said :</p> <p>“Aside from the failure to fence there is no evidence of any negligence or wrong on part of the defendants or their employees that is relevant in this case. If this railroad track was laid down and operated by the company under and by virtue of the license given by the ordinance in evidence, on a public street in a populous part of the city, and the street and track graded up by the company to the same level, the provision of the ordinance requiring a substantial fence to be built separating the railroad track from the other part of the street is to be considered a reasonable police regulation for the safety and protection of travellers on the street by day or night. By the acceptance of the benefits of the ordinance a duty was imposed on the railroad company to erect this protection, the neglect of which was negligence. If this negligence naturally, directly and materially contributed to the death of James Collins, the plaintiffs are entitled to recover, unless the deceased was guilty of negligence which contributed to the accident. * * *</p> <p>“ The deceased had a right to travel along Preble avenue — not on the railroad track. If at or near the point at which he was killed, he was passing along the street, and in the darkness of the night casually and unintentionally got on the railroad track because of the want of a fence, and at the same time exercising that reasonable care and prudence which a man of ordinary prudence and intelligence in the possession of his faculties (I mean sober, for it requires a sober man to exercise reasonable care and prudence as a general rule), and knowing the situation, as Collins did, would have exercised, and after finding himself on the track was unable to get off until struck by the train, he did all that the law required of him and was not guilty of negligence which would prevent a recovery.”</p> <p>Verdict for the plaintiffs for $3000, and a motion for a new trial having been refused, judgment was entered on the verdict. The defendant then took this writ, assigning for error, inter alia, the foregoing instruction of the court.</p>

2, of Allegheny county: Of October and November Term 1878, No. 7. This was an action by Magdalena Both, administratrix of John Roth, deceased, against The Northwestern Mutual Life Insurance Company, of Milwaukee, to recover the amount of a policy of insurance on the life of said John Roth. John Roth, who resided in Pittsburgh, insured his life in the defendant company for $3000 on the 1st of December 1870.

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 183.</p> <p>Two writs of scire facias upon mechanics’ liens, issued by Jarvis, Halpin & Co., against John A. McKelvey, owner and contractor. Defendant pleaded, No lien, nil debet, set-off, payment with leave, &c.</p> <p>The lien was filed on the 10th day of November 1876, against two adjoining houses, “for labor, materials, &c., furnished to said house in plumbing and gas-fitting, under a gross contract made by claimants with said John A. McKelvey, owner and contractor, done and furnished within six months last past, for and about the erection and construction of the buildings hereinafter described.”</p> <p>The bill of particulars was as follows :</p> <p>John A. McKelvey, owner and contractor,</p> <p>To Jarvis, Halpin & Co., Dr.</p> <p>To work as per contract on Shady avenue, houses finished June 18th 1876, . . . $584.00</p> <p>Credited by cash,.......$113.95</p> <p>Leaving still due claimant,..... $470.05</p> <p>The work was all done and materials furnished in the fall of 1875, or at the latest through the winter of 1875, and prior to the 1st day of April 1876. The lien was not filed until the 10th day of November 1876, so that more than six months had expired from the time of completion of the work until the time of the filing of the lien; but the plaintiffs below showed, by Samuel Jarvis, that, on or about June 18th 1876, he met Mr. McKelvey, the defendant, who called his attention to the fact that the firm had.neglected to put in a street-washer; that he, the witness, then called his attention to the fact that the contract did not call for a street-washer, but for two hose-plates, one for each house, and that they, the contractors, had overlooked them, and forgotten to put them in. That he and the defendant, then and there, made an agreement that the plaintiffs should be released from their undertaking to put in the said hose-plates, and in consideration thereof the plaintiffs agreed to put in a street-washer near the curb on the outside of the sidewalk, and that they did so.</p> <p>The defendant contended that this new arrangement in June 1876 did not save the lien and bring the whole claim within the six months prior to the filing of the same. The court below, however, decided against him, and this ruling constituted one of the assignments of error.</p> <p>On the trial, when the plaintiffs offered the mechanic’s lien in evidence, the defendant objected to it on the ground that it set forth and averred that the work had been done under a special contract, but did not contain or set forth sufficiently the terms of such contract, also; and that the bill of particulars was a lump charge, and did not specify the nature, kind and amount of work and labor done and material furnished. The court, however, overruled the objection to this, and such ruling constituted defendant’s first assignment of error.</p> <p>It appeared by the evidence and by the written proposal that the original contract price for the work was the sum of $584. The defendant below claimed and offered evidence tending to show that at the time he accepted the proposal of plaintiffs they agreed to take in part payment an order on Byers & McCullough, tube manufacturers, for $500 worth of gas-pipe, and it was also admitted that said order was afterwards given by the defendant and received by the plaintiffs below, and that they received the pipe therein called for from Byers & McCullough. The plaintiffs, however, while they admitted that they had received the order and got the pipe upon it, yet denied that they had agreed to take it in part payment of, and at the time they made the contract, for this plumbing work, and claimed the right to apply it to a subsequent running account between them and the defendant, as to some other dealings between them; and the ruling of the court upon this question of appropriation formed the subject-matter of another of defendant’s assignments of error.</p> <p>The plaintiffs submitted the following point, which the court, Bailey, A. L. J., affirmed.</p> <p>That in the absence of any appropriation by the parties at the time, the law would apply the payments to the claim least secure, and that therefore if they find that the parties made no appropriation at the time of the giving of the order and making payments in this case, then these various orders and payments would apply first upon the general book account, and the balance, if any, would be a credit upon the lien. Second assignment of error.</p> <p>Among the points submitted by the defendant were the following, with the answers of the court thereto :</p> <p>3. If the $584 contract for plumbing and gas-fitting was substantially completed, and was accepted by defendant as finished before May 10th 1876, the fact that defendant claimed that the work had not been done according to contract, and the fact that plaintiffs agreed to do and did do other outside work to compensate for the deficiency, would not preserve the lien.</p> <p>Ans. “ I refuse that point, because there is no evidence to cover the facts presented therein.” Third assignment.</p> <p>4. It the jury find that said contract was completed before May 10th 1876, work or materials furnished after that time under any new arrangement, or with any purpose whatever, would not preserve the lien.</p> <p>Ans. “Refused.” Fourth assignment.</p> <p>5. If the jury find that the said contract for plumbing and gas-fitting was completed before May 10th 1876, the request of defendant that plaintiffs should put in a street-washer in lieu of and to compensate defendant for the plaintiff’s failure to put in hose-plates, and the fact that plaintiffs did put in the street-washer connected with the pipe in the street, but not directly connected with any pipe in the houses, would not preserve the lien.</p> <p>Ans. “ I refuse that point, and especially it ought to be refused, because it is based upon an allegation which the plaintiffs proposed to prove, but to which the defendant objected and the court ruled it out, so that certainly he could not base the point upon a piece of evidence which he himself had deprived the plaintiff of an opportunity to offer.” Fifth assignment.</p> <p>In the general charge, the court, inter alia, said:</p> <p>“ I charge you that the street-washer was a substitute for the hose-plates, and the only questions for you to pass upon are : 1. Whether there was an agreement about this $500 order which would make it applicable to this contract for plumbing and gas-fitting; and 2. Whether in good faith this street-washer was put in under the agreement on contract made between the parties for the plumbing and gas-fitting; or whether it was a mere subterfuge or an effort to do something in addition to the contract in order to cover the time requisite to file this lien.” Seventh assignment.</p> <p>"Verdict for plaintiffs, and after judgment defendant took this writ, assigning among others the above errors.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 87.</p> <p>Debt on a bond brought by the German American Bank, for use of O. Seibert, assignee, against John O. Auth, George A. Bannantine and Michael Ward.</p> <p>Auth having been appointed messenger of the bank, gave to it his bond in the sum of $10,000, with Bannantine and Ward as sureties, conditioned as follows :</p> <p>“Now, if the said John C. Auth shall and do well and truly, during any and all times hereafter, so long as he shall continue to hold the office of such messenger (under this or any future election), account for and pay over any and all moneys that may come into, or pass through, his hands as such messenger — and shall, moreover, attend to all the duties appertaining to said position, and perform the same to the best of his ability, and shall in all things conduct himself honestly and faithfully as such messenger, without any fraud or further delay, then this obligation to be void, otherwise to be and remain in full force and virtue.”</p> <p>At the trial it appeared from the testimony of Seibert, the cashier, that the bank intrusted Auth with the combination of the safe-lock ; that on Friday the 28th of May 1875, the cashier had counted the money in the bank, and placed it in a tin box, which was placed in the safe by either the cashier or the messenger; that on Saturday the 29th, being a holiday, the bank was not opened, and remained closed until Monday, when it was discovered that about $3000 had been taken from the safe. The door of .the bank and the safe were both locked, and everything in the bank was as it was left on Friday. It was found also that the messenger had absconded. The officers of the bank consisted of a president, cashier and the messenger. No night watchman was employed. Nothing was heard of Auth after his departure by the bank’s officers.</p> <p>The plaintiff having shown the above facts and rested, the defendants moved for a nonsuit, “because the evidence of the plaintiff shows that if the money was taken by John O. Auth at all, it was taken from the safe, and in consequence of his having the combination of the safe, and not in his capacity as messenger; and that there is no evidence that it is within the scope of the employment of a messenger that he should have the combination of the safe and access thereto.”</p> <p>The court, Kirkpatrick, J., granted the nonsuit, and the court in banc, having subsequently refused to take it off, the plaintiff took this writ and assigned this action for error.</p>

<p>The testator devised all of his estate to trustees to pay over the income of one-half thereof to his granddaughter until she attained the age of twenty-five years, and then to convey to her in fee the one-half of his estate, “ subject to the payment of its pro rata share of the annuities hereinafter charged on my said estate.” In another clause of his will he directed the income of the other half to be paid to his two nephews and a niece in equal shares, and when the youngest of them attained the age of twenty-one years, their shares should be conveyed to them in fee, “ subject to the payment of the pro rata share of each of the annuities hereinafter charged upon my said estate.” In two separate clauses he created annuities and made them an express charge upon the shares of 'the nephews and niece, but made no mention of the granddaughter in either of these clauses. Commissioners were appointed to make partition of the estate, who divided the same into two purparts, and charged each with the payment of one-half of the annuities, which charge the court sustained, on the ground. that it was the manifest intent of the testator to charge both parts of his estate, and that it was evident that the name of the granddaughter had been omitted by mistake in the clause giving the annuities. Held, reversing the court below, that the name of the granddaughter could not be thus supplied, and that her share was not subject to the burden of the annuities.</p> <p>2. Words can only be supplied in a will where they are necessary to give effect to the unquestionable purposes of a testator, but where they will not advance this intent no such change can be made.</p> <p>3. The trust to the granddaughter was an active one until she attained the age of twenty-five years, and the court was right in allotting her purpart to the trustees until she reached that age.</p>

<p>Certiorari to the Court of Common Pleas of Mrie county: Of October and November Term 1877, No. 278.</p> <p>Appeal of Heman Janes from the decree of the court directing appellant to pay a master’ fee and other costs in certain proceedings in the court below. The proceedings are fully set forth in the opinion of this court.</p>

<p>Appeal from the Court of Common Pleas of Erie county: Of October and November Term 1878, No. 33.</p> <p>Appeal of M. H. Silverthorn and others, commissioners of Erie county, from the order of the court releasing a fund arising from the sale of real estate bound by a judgment given to the county of Erie to indemnify said county for the expense of keeping Martha Hollister, an insane person, at a hospital for the insane.</p> <p>The judgment was entered upon a bond by O. C. and S. A. Hollister and by M. W. Moffit and James Lewis, in the sum of $500, with warrant of attorney to confess judgment, given to the county commissioners, conditioned as follows :</p> <p>“Whereas, the expense of keeping Martha Hollister at the Western Pennsylvania Hospital for the Insane, at Dixmont, is char'ged to and paid by the county:</p> <p>“Now the condition of the foregoing obligation is such that if the aforenamed O. C. Hollister shall well and truly pay or cause to be paid into the county treasury quarterly, in advance, to wit: On the first days of January, April, July and October in each year, the sum of thirty-nine dollars or such other sum, be the same more or less, as the county shall be required to pay for the support and maintenance of-the said Martha Hollister at said institution for the ensuing quarter, and shall fully pay and indemnify the said county for any and all expenses incurred by said county by the keeping of the said Martha Hollister at said institution from and after the 22d day of November A. i>. 1872, then in that case the foregoing obligation to be null and void; otherwise to be and remain in full force and virtue.”</p> <p>Martha Hollister was placed in the Western Pennsylvania Hospital for the Insane on the 20th of November 1872, and was still there at the commencement of these proceedings, at the expense of the county of Erie, which paid for her board at the rate of three dollars a week, besides furnishing her clothing. Judgment was entered on the bond.</p> <p>On the 1st day of November 1875, the real estate of S. A. Hollister, one of the defendants in the judgment, was sold at sheriff’s sale for $1000, a sum sufficient to cover the judgment for $500 in this case, there being a prior judgment for $300. There was, at this date, a balance due the county of Erie for the maintenance of Mrs. Hollister, of $140.55. Since that date nothing was paid to the county, and the cost of her maintenance to the county (including balance November 1st 1875), to October 1st 1878, was over $590, besides her clothing.</p> <p>In the distribution of the money made by the sale of S. A. Hollister’s real estate, $500, the amount of the bond in this case, was impounded, and remained in court as security for the performance of the condition of the bond. On the 29th of May 1877, W. C. Goodrich, a lien creditor of S. A. Hollister, whose judgment was entered subsequent to the entry of the judgment in this case, made a motion for a rule to show cause why the $500 remaining in court should not be released from the’lien of the judgment in this case, on the payment of the sum of $95.83. The court granted a rule to show cause, which was, after argument, made absolute on the payment to the county of the sum of $140.55, the amount due the county at the date of the sale of the real estate of S. A. Hollister, viz.: November 1st 1875.</p> <p>From this order of the court the county commissioners appealed, claiming the entire amount impounded, as the payments made by them on account of the support of Mrs. Hollister already exceeded the amount of the bond.</p>

<p>Error to the Court of Common Pleas of Erie county: Of October and November Term 1878, No. 198.</p> <p>The following case, wherein the county of Erie was plaintiff, and the Erie and Western Transportation Company was defendant, was stated for the opinion of the court:</p> <p>That the defendant is a public corporation duly incorporated by the legislature of Pennsylvania, by act approved June 21st 1865, and by supplements of April 15th 1869, and May 9th 1871, entitling the defendant corporation: “ to all the powers, privileges and rights conferred by an act approved April 7th 1870, upon the Pennsylvania company” (all of which acts of the legislature of the Commonwealth of Pennsylvania are to be taken and made a part of this case stated as fully as if the same were copied herein).</p> <p>That the defendant corporation is a common carrier engaged in transporting grain and other merchandise to and from Chicago, in the state of Illinois, and other ports on the great lakes, the cities of Philadelphia, Penna., Baltimore, Md., and other eastern and southern cities; that in the carrying on of its business under its charter, it is necessary that it should have grain elevators, docks, warehouses and offices in the city of Erie.</p> <p>That the defendant is the owner of certain water-lots, situate in the city of Erie, necessary to the carrying on of its business under its charter, and upon which are erected two grain elevators, warehouses, docks and offices, all of which are used by the defendant in carrying on its business under its charter.</p> <p>That the plaintiff is a quasi corporation in law.</p> <p>That the said plaintiff did assess and levy upon the said water-lots, docks, elevators, warehouses and offices of defendant, situate in the city of Erie and county of Erie aforesaid, a tax for county purposes, for the year 1875, amounting to the sum of $607.50, and collected the same from the defendant, and that the said defendant paid the said tax under protest; that the said plaintiff did assess and levy upon the said property of defendant a tax for county purposes, for the year 1876, amounting to the sum of $607.50, which said last-mentioned sum has not been paid.</p> <p>If the court is of the opinion that the said property of the defendant was not legally subject to taxation for county purposes, the judgment is to be entered for defendant for $607.50 (the tax paid under protest for the year 1875), but if the court is of the opinion that the said property of defendant is subject to the payment of said taxes, the judgment to be entered in favor of plaintiff for $607.50, the tax for 1876.</p> <p>The court in an opinion, inter alia, said:</p> <p>“ It is admitted by the case stated, as it is apparent from the charter and scope of the objects and purposes of this organization, that it is a public corporation, and that the property taxed is such as is necessary for the enjoyment of the franchise granted by the act of incorporation and its supplements. [It must therefore be held to be exempt under a class of cases decided by the Supreme Court and not necessary to be cited here.] It is not requisite with the view so taken of this case to consider the effect of the Act of 1871, extending the rights of the Pennsylvania company to the Erie and Western Transportation Company, defendants. Judgment entered on the case stated for defendants for the sum of $607.50.”</p> <p>The plaintiff took this writ, assigning for error the entry of judgment and the foregoing portion of the charge in brackets.</p>

<p>Error to the Court of Common Pleas of Erie county: Of October and November Term 1878, No. 125.</p> <p>Replevin by the Howe Sewing Machine Company against S. S. Sloan for twelve sewing machines which the plaintiff had consigned to G. C. McKinley for sale, and .upon which defendant had distrained for rent due by said McKinley.</p> <p>Under the provisions of the Act of May 14th 1874, Pamph. L. 166, the case was referred to M. Crosby, Esq., as referee. He found, as facts, that McKinley, who was engaged in selling the machines of the plaintiff, had leased the premises for which the rent was due and on which the distress was made in his own name, and occupied them for the purposes of his business. Before the referee, as found by him, a general agent of the plaintiff testified: “ That the property distrained was that of the plaintiff; that it was simply placed in the hands of McKinley to sell on commission, and that the plaintiff had nothing to do with the renting of the store by McKinley; that McKinley was to sell-for the company for thirty per cent, of each sale, the company having the right to reject the sales; that the company paid him $10 when a sale was accepted, and the balance when the company had received a certain amount; that the property distrained was worth $630 to plaintiff.</p> <p>The defendant also testified that he did not know at the time of making the lease, or at the time of the distress, that the property was that of the plaintiff; that it came upon the premises marked to G. O. McKinley; that he did not know until after the distress that the machines were only consigned to him.</p> <p>The plaintiff submitted the following points, to which are appended the answers of the referee:</p> <p>1. That if the referee should believe that G. O. McKinley was the agent, consignee or factor of the plaintiff, and the property distrained the property of the plaintiffs and only consigned to said McKinley, that in that case the defendant could not distrain it, and the decision must be for the plaintiff.</p> <p>Ans. “I do not find that McKinley was an agent, factor or consignee of the plaintiff in the usual acceptation of the terms.”</p> <p>2. That if the defendant knew that the property of the Howe Machine Company was only consigned to McKinley.as such agent or factor, that in that case the decision should be for the plaintiff.</p> <p>Ans. “I find from the evidence that the defendant did not know till after the distress that the property was that of the plaintiff.” In an opinion, the referee, inter alia, further said :</p> <p>“It is a settled principle of the common law that the goods of a stranger, found on demised premises, are liable for rent, and may be distrained therefor.</p> <p>“Upon this principle of law the plaintiff’s machines were liable to distress for rent due by McKinley, unless, under the circumstances of the case, they fall within some one of the several exceptions established in the interest of commerce and for the benefit of those compelled to intrust their property temporarily to the possession of others.</p> <p>“ Such exceptions seem to have been fully discussed in Karns v. McKinney, 24 P. F. Smith 387, none of which seem to be like the case in question. The machines were certainly not in a warehouse on storage, nor were they in McKinley’s- possession as an artisan, like cloth in a tailor’s shop, &c., nor was McKinley a factor in any sense, as between himself and the landlord or the public at large. It is true he may have received the machines from the plaintiff to sell for a certain percentage on the amount of sales as his compensation, but he was not, in the usual acceptance of the term, a commission merchant. It may have been known to the plaintiff, but it was not known to his customers, to those who bought machines of him, or to the public, or even to his landlord, the defendant, that he held the property on commission. He appeared to hold it as owner, and in that respect this case differs greatly from all those mentioned as exceptions to the general rule.</p> <p>“If I leave goods for storage in a warehouse, or at a freight depot, or on a wharf, for transportation or repairs, with a mechanic, or send them for sale to a generally-recognised and well-known commission merchant, my relation to the goods and to those in whose custody they temporarily are, and perhaps also to the public, so far as the public can have an interest therein, is not the same as if I had consigned them to an individual to sell, as McKinley held these machines for sale, being apparently the owner, but in fact holding them on commission under secret instructions and by virtue of private arrangements between such individual and myself not known or in any manner disclosed to those with whom he dealt. In the one case my actual relations to the property would be readily comprehended and understood by business men of even dull intelligence, while in the other it could not he discovered or even guessed at by the wisest and the shrewdest dealers.</p> <p>“If the principle that the goods of strangers found on demised premises are, under any circumstances, to be liable to distress for rent, I see no reason why the goods levied on in this case were not so liable.”</p> <p>The decision and judgment were for defendant, when plaintiff took this writ, among other errors assigned being the answers to the foregoing points.</p>

105. This was an appeal in the court below by the Commissioners of Cranberry township, Venango county, from the judgment of a justice of the peace, obtained by James M. Bredin against said commissioners. The facts are fully stated in the opinion of this court.

<p>Error to the Court of Common Pleas of Venango county: Of October and November Term 1878, No. 253.</p> <p>This was a rule to show cause why a judgment entered on an exemplified record, wherein John Duffield was plaintiff and William A. Cooper and J. O. Jackson were defendants, should not be stricken off and execution set aside.</p> <p>Cooper and Jackson executed a note in the following form:</p> <p>“ $1250. Franklin, Pa., February 3d 1877.</p> <p>Six months after date we promise to pay to the order of John Duffield twelve hundred and fifty dollars for value received, with interest, payable at the Exchange Bank, Franklin, Pa.” (With a warrant of attorney to confess judgment, &c.)</p> <p>On the 2d of July 1878 judgment was confessed by attorney in the Court of Common Pleas of McKean county in favor of Duffield, and against both Cooper and Jackson, for $1028.87, being the balance then due, and execution issued thereon. Endorsed upon the execution is the following receipt:—</p> <p>“ September 7th 1878.</p> <p>Received from J. C. Jackson one thousand, thirty-five and 17-100 dollars, and do hereby assign to him the within entitled judgment, debt, interest and costs, without recourse. [Signed] John Dueeield, by Sterrett, Brown & Rose, Attorneys.”</p> <p>Returned by order of plaintiff.</p> <p>On July 22d 1878 an exemplification of this record in McKean county was filed in the Common Pleas of Yenango county, and on the same day execution issued and levy, was made upon the personal property of Wm. A. Cooper, who presented his petition, upon which a rule was granted on the plaintiff to show cause why the judgment should not be stricken off and the execution stayed and set aside. Testimony was taken which conclusively established that Jackson was surety in the note; and it was contended, upon the part of the plaintiff, that he being simply a surety and having paid the claim, he had the right to have the judgment marked to his use and issue execution against Cooper alone.</p> <p>After argument upon the rule to show cause, the court, Taylor, P. J., in an opinion, inter alia, said:</p> <p>“ That a surety may pay an indebtedness and not extinguish the claim against the principal debtor, will be admitted ; and that the surety having paid the debt, is entitled to all the securities the creditor had against the principal debtor, is settled by numerous cases: Wright v. Grover & Baker S. M. Co., to use, 1 Norris 80, and eases there cited.</p> <p>“ After an indebtedness has assumed the form of a judgment the 9th section of the Act of April 22d 1856, provides a mode by which such surety may be subrogated to the rights of the plaintiff, viz.: by application to the court, who alone has the power to order a radical change of the record. The record of the judgment in McKean county stood thus : John Duffield v. William A. Cooper and J. C. Jackson. The judgment was so entered upon the records of this court. The prceaipe for fi. fa. and the fi. fa. in this county did not pursue the judgment. It is in the form following: John Duffield, to use J. C. Jackson, v. William A. Cooper. The execution should have followed the judgment, and the plaintiff could have directed a levy upon the goods of one of the defendants alone, if he chose so to do. Not having done so, it is such an irregularity as will warrant the setting aside the execution: Shaffer v. Watkins, 7 W. & S. 229; Stuckert v. Ellis, 2 Miles 433.</p> <p>“ If subrogation after judgment was effected by operation of law, the same as before, we fail to see the necessity of the Act of Assembly before cited. The act having provided and pointed out the remedy, the surety should avail himself of its provisions. For these reasons the rule to set aside the lien and execution is made absolute and discharged as to striking off the judgment.”</p> <p>This action of the court was assigned for error by Duffield, who took this writ:</p>

142. Case by Katharina Weiss and her minor children against the Pennsylvania Railroad Company, to recover damages for the death of her husband, caused by the alleged negligence of defendant. At the trial, before Galbraith, P. J., it was shown on the part of plaintiffs that Weiss, while driving over a public crossing of defendant’s railroad in the city of Erie, was killed by a passenger train.

<p>1. Where a debtor dies, under the acts which provide that all the debts of a decedent shall be a lien upon his real estate, for a period of five years after his death, a bill in equity will lie on the part of creditors who have not reduced their claims to judgment against one to whom the decedent, in his lifetime had conveyed land in fraud of said creditors, if the grantee was not a bonafide purchaser but knew of the fraudulent intent, and the court will decree such conveyance void, and that such land shall be subject to the debts of said creditors.</p> <p>2. The mere fact that the claimants had not recovered judgment, is not sufficient to oust the equity jurisdiction of the Court of Common Pleas.</p> <p>3. Pending the suit, the court properly enjoined the defendant from conveying or encumbering the land.</p> <p>4. The deed in controversy was only void as to the complaining creditors. The quiescent creditors, if there be any, cannot take advantage of this proceeding, and after the payment of the claims of the complainants in the bill the land should be relieved from the injunction.</p> <p>5. After the decree in this case, one who had purchased said land from the assignee in bankruptcy of the defendant, applied to the court and asked that the decree should be modified so that no sale of the land should be made until the temination of certain proceedings, in which the claims of the complainants in the bill would be ascertained. Held, that the defendant and those claiming the land under him had had their day in court, and the motion must be denied.</p>

<p>1. A gift of the income of a fund, without limitation as to time, is a gift in perpetuity, and carries the fund itself.</p> <p>2. Where there is no bequest over, and no restriction to the life of the first taker, the gift is absolute.</p> <p>3. Where it is plain that the intention of a testator was to give the entire beneficial interest of a bequest to his nephew, the fact that he withheld the enjoyment of the principal thereof until the trustee of the nephew should be satisfied that he was sober and industrious in his habits, in no wise affects the question of intention.</p> <p>4. A testator bequeathed a certain sum to his executrix in trust, to be safely invested, and the income to be paid to his nephew, and authorizing her, at her discretion, to pay over to him the fund itself. Held, that this was a vested legacy in the nephew. ■</p>

<p>1. The variance is fatal, where a mechanic’s lien is,filed ‘‘ for materials furnished for the erection and construction of buildings,” and the evidence shows they were for “ repairs.”</p> <p>2. The scire facias upon a mechanic’s lien answers as a statement of claim and takes the place of a declaration.</p>

<p>Under the provisions of the Act of May ISth 1876, exempting pianos, melodeons and organs, leased or hired, from levy or sale on execution or distress for rent the notice required by the act must be given to the .landlord when the leased instrument is placed upon the premises, or, at latest, before the landlord's right to distrain has accrued.</p>

<p>1. Under the provisions of the 30th section of the Act of Congress of June 3d 1864, the state courts have jurisdiction of an action of debt to recover from a national bank, double the amount of usurious interest received by said bank, in violation of said section. Bletz v. The Columbia National Bank, ante, p. 87, followed,</p> <p>2. It is not a misjoinder of counts to set out in a declaration in debt counts for the recovery of a penalty for taking usurious interest, under an act of Congress, and counts to recover an excess of interest paid; such claims are not incongruous, and a recovery may be had for both of said demands in the same action.</p> <p>3. The misjoinder of counts in a declaration, ought properly to be taken advantage of by demurrer in arrest of judgment, or by an assignment of error in the judgment on account of such misjoinder.</p> <p>4. In debt for a statute penalty given wholly to the party aggrieved the judgment is quod recuperet.</p>

38. Debt by John Gruber against the First National Bank of Clarion. The material facts are set forth in the report of the preceding case of Gruber v. The First National Bank of Clarion, which was a writ of error taken by the plaintiff to the same judgment. The questions considered and disposed of on the present writ are stated in the opinions of this court.

<p>1. “Where A., B. and C., a committee appointed “by a meeting of citizens, make a contract with D., signing the contract as a committee, and affixing their seals thereto, they make themselves personally liable under the contract.</p> <p>2. The only effect of the word “ committee” is like that of “ executor” in a personal obligation, to identify the transaction, not to qualify the act.</p>

<p>Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1878, No. 301.</p> <p>Scire facias by Robert M. Cavett against Lauffer, Hurst & Co., with notice to David R. Jones and others, terre-tenants, to revive a judgment.</p> <p>At the trial it appeared that in 1870 S. D. Lauffer, J. J. Hurst, J. S. Cunningham and H. O. Tinstman were in partnership in a foundry business. In that year they purchased from John Irwin a certain lot of ground, the deed for which was made to S. D. Lauffer, J. J. Hurst and J. S. Cunningham, “ doing business under the style of Lauffer, Hurst & Co.,” their heirs and assigns. On April 17th 1872, they confessed a judgment to Cavett for $5000, the note being signed by each partner, and under the signatures was written “ doing business under the style of Lauffer, Hurst & Co.” The deed was not recorded until 1874. Subsequently the land was divided up into lots and sold to tenants, who made the defence in the present case. The question as to whether the plaintiff had the right to revive the judgment against the terre-tenants was reserved by the court, and a verdict given for the plaintiff against Lauffer, Hurst & Co., who made no defence. After argument the court subsequently gave judgment as against the terretenants, in an opinion, saying:—</p> <p>“The giving of the original judgment to Cavett was the joint act of all the members of the firm at the time, whilst no one of the members of the firm, or any number less than all, had the right to encumber the partnership realty. Manifestly all had, otherwise partnership realty would be beyond the control of the firm itself. Partnership equities must be worked out through the partners. Here the partners by the just act of all the members dedicated this realty to the security of a firm loan; this they had a right to do. Again, the defendants stand on no higher plane than does the plaintiff. He holds a judgment which is the joint act of all. The deeds which they hold are no more or less the joint acts of all. The firm gave the judgment, and it did not lie with the firm to convey away this land so as to discharge the lien of the judgment. Motion for judgment on the reserved question for the defendants non obstante veredicto denied and leave given to enter judgment on the verdict.”</p> <p>This entry of judgment on the verdict was the error assigned by defendants, who took this writ.</p>

<p>Error to the Court of Common Pleas of Somerset county: Of October and November Term 1878, No. 257.</p> <p>Scire facias sur mechanics’ lien by Daniel Shultz against Eleanor F. Shannon, owner, and Michael Shannon, contractor.</p> <p>Eleanor F. Shannon was the wife of Michael Shannon, and owned a lot of ground upon which her husband erected a house upon which Shultz did certain work, and furnished certain materials, and for which he filed the following lien:—</p> <p>Daniel Shultz v. No. 11. January T., 1876. Eleanor Shannon, owner, 1 and M. L. D., D. S. B. $258. Michael Shannon, contractor.^</p> <p>And now, to wit, 29th December 1875, the plaintiff, Daniel Shultz, filed his claim by his attorney, for the payment of the sum of $258, against all that certain two-story house and back-building, 22 by 40 feet, with back-building, &c., &c. And the lot or piece of ground and curtilage appurtenant to said building.</p> <p>The sum aforesaid being a debt contracted for work done and material furnished by said claimant within six months last past, in and about the erection of the said building, of which the said Eleanor Shannon, wife of Michael Shannon, was and is the owner or reputed owner, and the architect, builder and contractor thereof, at whose instance and request the said work was done and the materials furnished. And the said Daniel Shultz claims to have a lien on the said building and lot or piece of ground and curtilage appurtenant to said building from the commencement thereof for the sum aforesaid, according to the Act of Assembly in such cases made and provided.</p> <p>And the said claimant hereto annexes a bill of particulars of the amount of his said debt, showing the nature, kind and amount of work done and materials furnished, and the time when the work was done and the materials furnished.</p> <p>To the scire facias on this lien Eleanor Shannon made defence on the grounds:</p> <p>First, that her husband had no authority to bind the lot by a mechanic’s lien. Second, that the lien was defective in the following particulars:</p> <p>1st. It does not allege that the work and materials were done and furnished for and about the improvement of the wife’s separate estate.</p> <p>2d. It does not allege that the work done and materials furnished were actually applied to the improvement of the wife’s separate estate.</p> <p>3d. It does not allege that the work done and materials furnished were necessary for the use and enjoyment of the wife’s separate property.</p> <p>4th. In the title Eleanor Shannon is named as owner and Michael Shannon as contractor, and in the body of the claim Eleanor Shannon is named as both owner and contractor. The lien is therefore void for uncertainty.</p> <p>At the trial before Hall, P. J., it appeared that the materials were not ordered by Mrs. Shannon, but by her husband, and that she knew ‘the house was being erected on her lot and made no objection. Shannon testified that he built the house on the lot because he wanted it there. The materials were charged to Michael Shannon on the books of Shultz.</p> <p>The defendant requested the court to charge that “ under all the evidence in the case the verdict must be for the defendant,” which the court refused, saying the questions of fact were for the jury, and further said:</p> <p>“ Under the Act of 1848 a wife is entitled to her own separate property. The husband cannot bind it for his debts, nor encumber it without her consent in writing duly acknowledged. But she herself, in person or by another authorized so to do, may make her property liable for debts for the improvement of it. And she may make her husband her agent to act for ber. If she authorized him to erect this dwelling-house for her on her lot, and in so doing he contracted this debt with her knowledge and consent for materials used in the erection of the building, and which were furnished on the credit of the building, we think the property would be subject to the mechanic’s lien. It makes no difference that Shultz charged the bill to Michael Shannon or took Shannon’s judgment note and entered it, provided he furnished the materials on the credit of the building and continued to hold the building as his security. The facts we leave to you.”</p> <p>Verdict for plaintiff, when defendant took this writ and assigned for error the refusal to charge as requested and the foregoing charge.</p>

<p>Error to the Court of Common Pleas of Somerset county: Of October and November Term 1878, No. 61£.</p> <p>Assumpsit by Hertz Keiser against Max Kline and Otto Frey, trading as M. Kline & Co., endorsers of Daniel Cams.</p> <p>On the 5th day of May 1875 Daniel' Cams executed and delivered three judgment notes under seal, each for $122.16, payable respectively at three, five and seven months, to M. Kline & Co.</p> <p>Before maturity of the said notes M. Kline, one of the firm, transferred the notes for value, to Hertz Keiser by endorsement in the following words :</p> <p>“ The within for the use of Hertz Keiser with recourse.</p> <p>M. Kline & Co.”</p> <p>At maturity Daniel Cams was insolvent. Keiser brought his suit against M. Kline & Co.</p> <p>The defendants requested the court to charge that this endorsement was at most but a simple assignment of the note, and that the words “ with recourse” do not qualify the assignment and have no legal meaning or operation. The court, Hall, P. J., refused to so charge, and the verdict being for plaintiffs, the defendants took this writ and assigned this refusal for error</p>

129. Appeal of Jeremiah Daily from the decree of the court setting aside a sale made to him by the executors of Peter Soxman, deceased. At the time of his death Peter Soxman was seised, inter alia, of a farm of seventy-eight acres, underlaid with coal, in Derry township, Westmoreland county.

<p>Error to the Court of Common Pleas of Indiana county: Of October and November Term 1878, No. 270.</p> <p>Debt upon a bond by the Dollar Savings Bank, for use of the executor of Samuel McClurkan, deceased, against James M. Burns.</p> <p>This was an action of debt on a bond, conditioned for the payment of $2000, made by defendant, James M. Burns, in favor of The Dollar Savings Bank, which was given for borrowed money. Burns did not deny that he executed the bond and got the money thereon, but he alleged that the bond was paid. He did not claim that he paid it himself, but said the bond was secured by a mortgage, which was the first lien on his property in East Birmingham; that McClurkan, a subsequent judgment-creditor, purchased this property at sheriff’s sale on his own judgment; that afterwards he purchased the bond and mortgage from The Dollar Savings Bank and had them assigned to him, and that this purchase and assignment paid and satisfied the debt.</p> <p>McOlurkan on the other hand claimed that the bond was not paid; that it is true he purchased the East Birmingham property at sheriff’s sale, encumbered by a mortgage in favor of The Dollar Savings Bank, which being the first lien was not discharged by the sale, but that he never agreed or assumed to pay the mortgage, nor did he in any way incur liability on account of it; that the property was liable for its payment, if sufficient, for that purpose, but if the property failed to bring an amount sufficient to pay the mortgage at sheriff’s sale, other property of Burns’s would be liable for such deficiency, and not himself; that the East Birmingham property was exhausted by a fair public judicial sale, and not having brought a sum sufficient to satisfy the mortgage, Burns was liable on his bond for the balance.</p> <p>The court, Blair, P. J., inter alia, charged</p> <p>“When McOlurkan purchased the land under an execution issued on his own judgment, he became substantially the owner of it. He knew at that time of the existence of the mortgage, which was the first lien, and the land would be in the first instance liable for its payment. It is true that the bank was not bound to sell the land first. It could sell any other property of Burns under an execution on a judgment entered on the bond, but if it did Burns would be entitled to subrogation to the right of the bank in the mortgage as against McOlurkan, who had purchased his equity of redemption to the end that the land mortgaged, which was primarily liable for the debt, might be made to bear the burden properly belonging to it. [If McOlurkan can shift this burden to other property of Burns, it is plain that he would be getting the land of Burns without payment of the price he assumed to pay. How is such a result produced ? By calling the payment of the money to the bank a conditional purchase of the securities. But calling it a purchase does not change the essential character of the transaction. It was a payment of the debt, and from thenceforth it ceased to exist. When the bank was about to sell on her mortgage, McOlurkan came in and did what as between him and Burns it was his duty to do, paid the debt. From that moment the debt was extinguished, and although he took an assignment of it and carried on the execution as if nothing had happened, the sale was nevertheless powerless to give him any better title than he already had. The sale was unnecessary to discharge an encumbrance already extinguished.] If McOlurkan could show some equity in himself that required us to treat the mortgage-debt as surviving its payment, a different question would be presented. As a general principle, when the legal and equitable estate unite in the same person, a merger is the necessary result. And when a vendee of land pays off a lien or encumbrance on the title of his vendor, that is undoubtedly the end of it, unless there is some special equity <in the vendor rendering it necessary that it should be kept alive. Zeigler v. Long, 2 Watts 205, and Moor v. Harrisburg Bank, 8 Watts 138, are instances in which the lien survives, notwithstanding payment by the owner of the land. These are exceptional instances dependent on some equity; the general rule being that when the owner of the land acquires the title of a mortgage, the latter is merged in the former. It is frequently said that such merger will not take place when it is the interest of the owner that the lien should survive. But this does not mean his interest in the sense of a mere speculation, or in the sense of some unfair advantage over the debtor. Equity keeps it alive as a shield against injustice to the owner, and for no other purpose. [It has not been suggested how any wrong can be done to McClurkan by treating his payment of the mortgage as an extinguishmént of the debt. When he gave the money to the bank the effect of this act was to pay the debt, and the assignment of the bond and mortgage to him must be treated as invalid.] It is urged that extinguishment of the debt ought not to follow payment by McClurkan, but that he should be permitted to hold the bond and mortgage and proceed to have the mortgaged property sold by the sheriff, and ascertain by such sale whether it would bring a sufficient price to pay the debt, and if it did not, he should then be permitted to treat the bond as subsisting security for the balance, and collect it from other property. [But he settled what he would give for the land in 1869, when he first purchased it at sheriff’s sale. That price was his bid, with the mortgage added. To allow him recourse now to other lands for the purpose of making up this deficiency would be at the best permitting him to recompense himself for a bad bargain at the expense of Burns. The effort on the part of plaintiff is to put himself, with regard to the bond and mortgage, in the same position as the bank. We do not think this can be done.] A mortgage is but a security for a debt. If the bank had sold under it, and the sale did not produce a sufficient sum to pay the debt, it could proceed on the judgment-bond for the difference. If the sale under the mortgage produced more than enough to pay the debt, the surplus would go to Burns if he had continued to own the equity of redemption at the time of the sale, and there were no other valid liens to absorb it. As he was not the owner, the surplus would go to McClurkan, who stood in his place. Now if McClurkan can call upon Burns for this deficiency, it would seem but fair that he should give him the surplus, to the end that all the advantages might not be on one side. Then again, if McClurkan can be allowed to test the value of the land by a sheriff’s sale, with the view of holding Burns for the difference between the mortgage-debt and the price at which it happens to be knocked down, when should this test be applied ? There was an interval of four years between the time when he purchased under process issued on his own judgment, and the time of his purchase under that of the bank. We think he could not allow the interest on the mortgage to run on and then at any indefinite time in the future throw the chances of the market on Burns. The price of land might fall greatly in the meantime, but this would not affect McOlurkan if he may cast the loss on Burns. [If the question could arise at all between these parties it would be, what was the value of the land when McOlurkan first bought it, for the debt secured by the mortgage was then due, and if the value of the property was to be tested by a sheriff’s sale with the view of charging the mortgagor with this difference, it was the duty of McOlurkan to apply the test then. The case is not distinguishable in principle from Cooley’s Appeal, 1 Grant 401. You will observe, from the charge, that we are of the opinion the law is against the plaintiff, and that he cannot recover. Other reasons might be urged against his position, but we have said enough to indicate the principal grounds of our opinion. Your verdict should be for the defendant. ”J</p> <p>The verdict was for the defendant accordingly, when plaintiff took this writ, assigning for error the foregoing portions of the charge in brackets.</p>

<p>Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1878, No. 170.</p> <p>Scire facias, sur mechanics’ lien by Gr. W. and A. J. Turney, trading as Turney & Bro., against Joseph H. Kuhns and Plarriet Kuhns, his wife, the said Harriet being the contractor and owner, and John Sindorf, contractor.</p> <p>The claim filed set forth, inter alia, that the amount claimed to be due is $445.52, with interest thereon from the 28th October 1876. The same being for work done and materials furnished continuously within six months last past for and about the erection and construction of said building and on the credit of said building, and the said work was done, and the said materials so furnished, with the consent of said Harriet Kuhns, wife of said Joseph H. Kuhns, and for the improvement of the estate of the said Harriet Kuhns. The particular items, amounts and dates when said materials were furnished, and work done, being specifically set out in the bill hereto annexed and made part hereof, and being furnished by the authority and with the consent of the said Harriet Kuhns.</p> <p>The defendants pleaded nil debet, payment, &c. “And for further plea, averred that the said debt was not contracted by the said Mrs. Harriet Kuhns herself, nor by any person authorized by her so to do, she being a married woman. That the said debt was contracted with the said John Sindorf by the said plaintiffs, by himself, and upon his own credit, and that the said plaintiffs failed or neglected to enforce payment from him, he being of sufficient ability to pay; the said Mrs. Kuhns having long prior to said lien being entered, paid the said Sindorf in full of her contract with him for the building said house.”</p> <p>At the trial it appeared that Mrs. Harriet Kuhns, wife of Joseph H. Kuhns, Esq., was the owner in fee in her own right of a lot of ground near Grreensburg borough, in Westmoreland county, and entered into a contract with John Sindorf, to erect a dwelling-house on the same for the sum of $4000, he to furnish all the material and do the work. Sindorf erected the house and was paid the $4000. Turney & Bro., in the course of the work, furnished to Sindorf various articles of hardware, and also did some roofing and spouting, which they charged to Sindorf, as shown by their bill, amounting to $445.04. Turney & Bro-, alleging that Sindorf never paid them, filed their mechanics’ lien against the building and lot of ground, and issued their scire facias to recover the same.</p> <p>At the trial of the cause the defendants below asked the court to instruct the jury that the plaintiffs could not recover in this action, as they failed to set forth in their pleadings any averment that the materials furnished and work done were for the necessary repair or improvement of the separate estate of Mrs. Harriet Kuhns — that being a married woman she could only contract for necessary repairs or improvements, and this must be averred in the pleadings and shown by the proof. The court reserved the question and the jury found for the plaintiffs, and after argument ana consideration of the reserved question, directed judgment to be entered on the verdict in an opinion, inter alia, saying :—</p> <p>“ A married woman’s right to contract debts for the improvement of her real estate has its authorization in the 6th section of the Act of 1848, and not in the 8th: Murray v. Kees et ux., 11 Casey 384. In the 6th section the word “ necessaries” is not used (as in the 8th), and in it is she empowered to own, use or enjoy her separate estate. Improvement is essential to the use and enjoyment. Conceding that there may be a limit to the extent of the improvement for which she may bind herself, yet, inasmuch as a married woman may improve, and as the word improvement carries with it the idea of betterment, it is not too much to hold that the presumption is with the reasonable necessity of the improvements, when contracted for by her. This presumption would, of course, be liable to be rebutted by anything on the face of the lien negativing the reasonableness of the improvements, by plea and proof on the part of the defendant. There is nothing on the face of this lien tending to show that the improvement was other than reasonable, or any defence taken in affidavit or plea on this ground, and the presumption remains that the improvement was reasonable.”</p> <p>Motion to enter judgment for defendant non obstante veredicto refused, and leave given to enter judgment on the verdict.</p> <p>The plaintiffs took this writ alleging that the court erred:—</p> <p>1. In holding that the pleadings were sufficient to enable the plaintiff to recover.</p> <p>2. In saying, “ that it is not too much to hold that the presumption is with the reasonable necessity of the improvements, when contracted for by her.”</p> <p>3. In entering judgment for the plaintiffs on the verdict on the reserved question.</p>

249. Appeal of Rév. E. P. Swift from the decree of the court dismissing his petition praying for a citation to the executors of the will of Margaret Giffin, deceased, to show cause why an order should not issue for a sale of the residuary estate of said decedent, including lands unsold. Margaret Giffin died April 1st 1872, leaving a son and two daughters, Susan, the wife of Dr. Rankin, and Emily, the wife of Rev. E. P. Swift.

<p>Under the provisions of the Limited Partnership Act of 1836, where the general partner misappropriates the contribution of a special partner, the latter is not liable as a general partner for the debts of the partnership where he is not privy to the misappropriation.</p>

<p>1. The findings of fact by an auditor will not be set aside unless for plain error or for reasons which would induce a court to set aside a verdict.</p> <p>2. A deed from a husband to his wife is not void if good in equity, and where a consideration moving from the wife is clearly established the deed will prevail.</p> <p>3. In a contest with the creditors of the husband, where the equitable title of the wife is sustained and it appears that her conduct was such as to induce the litigation, the costs of the controversy must be paid out of the fund awarded to her.</p>

<p>1. A sale of the lands of a bankrupt by the assignee does not divest .the dower of the barnkrupt’s wife : In re Angier, 4 N. B. R. 619, followed.</p> <p>2. The dictum in Worcester v. Clark, 2 Grant 84, that a sale in pursuance of a decree in bankruptcy would bar dower were it not for the third proviso of the 2d section of the Act of Congress of August 19th 1841, dissented from.</p> <p>3. The Bankrupt Act of the United States and the Insolvent Debtor Act of Pennsylvania discussed and compared.</p>

<p>C., by an agreement under his hand and seal, for a valuable consideration, covenanted that he would not by deed, mortgage, sale, judgment, devise or otherwise, prejudice or interfere with the rights of his heirs-at-law as to their free and equal share in all his real estate, but that the same should remain free and uncontrolled, to be divided equally amongst all his legal heirs. C. subsequently made a will, wherein he devised his real estate to certain heirs, but did not include T. therein. T. brought ejectment to recover his interest as one of the heirs of C., under the agreement. Held, reversing the court below, that he could recover.</p>

2, of Allegheny county: Of October and November Term 1878, No. 204. This was a writ of error sued out in the name of W. A. McOlurg and Margaret McOlurg, who intervenes pro interesse suo, plaintiffs in error, against James E. Schwartz, surviving executor of Jacob L. Schwartz, deceased, now for use of J. E. Schwartz and George S. Griscom, for use of festate of Jacob L. Schwartz, deceased.

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 165.</p> <p>Assumpsit by the German Security Bank of Louisville, Kentucky, against Holmes, Lafferty & Co.</p> <p>On the trial of the cause it was proven that for several years J. M. Harper, of Louisville, Kentucky, had been shipping car loads of live stock to Holmes, Lafferty & Co., of Pittsburgh, to be sold on commission, and making drafts on them as soon as shipped, based on the bills of lading which accompanied the drafts. These drafts were usually discounted by the German Security Bank, and were always promptly paid until the draft for a certain car-load of hogs, shipped on August 9th 1877, by Harper to Holmes, Lafferty & Co., came due. On the day of shipment Harper drew his draft on the latter firm for $1300, and the said draft was discounted by the German Security Bank on the faith of the bill of lading which was handed over to it. The draft, with the bill of lading attached, was sent to the German National Bank of Pittsburgh for collection, was presented to Holmes, Lafferty & Co., on the 11th of August, and payment refused. The hogs arrived on the 13th, were received by the. defendants below, and by them sold. At that time Harper was indebted to defendants on over-drafts on previous shipments to a larger amount than the proceeds of this last lot. The proceeds of the shipment, after deducting freight, shipment charges, &c., amounted to $1299, which is the amount the bank claimed in their suit. The defendants claimed to retain it on account of the indebtedness of Harper to them. The bank based its claim to recover upon the ground that the transfer of the bill of lading, on the faith of which they discounted Harper’s draft, gave them the right to the cargo or its proceeds; that the mere handing over of the bill of lading was a transfer or pledge of the hogs as security for the draft. The defendants below denied this, claimed that no title to the hogs or proceeds could pass without an actual delivery to the plaintiff of the property, and contended further that even if it could that the handing over of a bill of lading, itself not a negotiable instrument, and which had no assignment whatever endorsed upon it, could not work a transfer of the property. The plaintiff below submitted points embracing the grounds upon which he sought to recover, and the court affirmed them. It also refused to affirm the following two points, submitted by the defendants below, which embrace substantially the defence to the action:—</p> <p>1. That the contract of shipment or bill of lading for the hogs in question not having been endorsed or assigned to the plaintiff by any words of transfer, but merely delivered without endorsement, no property in the hogs thereby passed to the plaintiff and the plaintiff cannot recover.</p> <p>2. That as there is no evidence that plaintiff took possession of the hogs, no lien was acquired by it upon the hogs, by way of security for any money which may have been advanced to Harper, which would be valid against Harper’s creditors.</p> <p>There was also evidence on the trial that Holmes, Lafferty & Co. had agreed to accept Harper’s drafts whenever the bills of lading accompanied them. This was denied by the defendants, and the court in its charge held that the testimony was not material to the issue. The jury found for the bank, and Holmes, Lafferty & Co. assigned the rulings of the court as error.</p>