Volume 88 — Pennsylvania State Reports

<p>Appeal from tbo Court of Common Pleas of Westmoreland county: Of October and November Term 1878, No. 153. In Equity.</p> <p>Appeal of John C. Fox and others from the decree of the court dismissing their exceptions to the report of the master in certain proceedings, commenced by bill in equity alleging a verbal contract on the part of Levi Fox, and a resulting trust in him for the use of appellants, and praying that the said Levi Fox be decreed to specifically perform said agreement and trust.</p> <p>The bill alleged, that John Fox died Nov. 4th 1874, leaving Sarah A. Fox, Isaac B. Fox, minor children of Isaac Fox, deceased, Mary Gongaware and John 0. Fox, plaintiffs, and Levi Fox, the defendant; that he died possessed of real estate of the value of $13,200, or thereabouts, and personal property, amounting to about $10,037.15 and upwards ; that ho made his will on 18th June 1874, by which he devised much the larger part of his estate to Levi Fox, giving to his daughter Mary $45Ú0 as for her services, as she had served him until she was over forty years of age; that at the time the will was made he was laboring under a feeling of prejudice toward the plaintiffs, or some of them, which induced him to make it as he did ; that subsequent to the making of the will, and while on his death-bed, he declared in the presence of John C. Eox, Levi Eox, Mary Gongaware, and several witnesses, that he could not die in peace the way his will was; that he wanted his property divided as nearly equally as could be between his children ; that John C. Eox should have at least three or four thousand dollars more than he had given him by his will; that Levi Eox, in answer to his father’s request, in the presence of John C. Fox and Mary Gongaware, said to his father, “ Don’t trouble yourself, father; it will be all right. I will do as you have said; your request shall be carried out;” that testator appealed to one of his neighbors present to see that this • was done, and confiding in what Levi Eox said, made no further effort to change his will or make a new one, and died in three days thereafter; that Levi Eox, after the death of his father, promised to carry out the request of his father and fulfil the agreement that his father’s estate should equally descend to his children; that Levi Eox took possession of the whole of the estate of John Eox, and that three-fourths of it, after payment of debts, &c., was held in trust by Levi Eox for the plaintiffs, and that he is now holding the same in trust by reason of the request and agreement aforesaid, and that, although he thus held the estate in trust, he had not executed the trust, and refused to do so, and the bill then prayed that he be decreed to perform said trust, and to pay over to plaintiffs three-fourths of the personal estate of the decedent in such proportions as the testator had designated on his death-bed, and to execute a declaration of trust of the realty. The answer admitted that decedent had made his will as set forth in the bill, but denied that he had made any such request, or that defendant had made any such promise as that alleged therein. The case was referred to a master, who reported that the testator was not laboring under a feeling of prejudice towards the plaintiffs when his will was executed; that he made no effort afterwards to alter his will, and that he was not prevented from so doing by the defendant; that defendant made no promise to divide the estate, and that no part thereof was held in trust by him.</p> <p>The plaintiffs excepted, and the court dismissed the exceptions, holding, inter alia, that the facts did not constitute a trust ex maleficio. The plaintiffs then took this appeal.</p>

<p>Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1878, No. 274.</p> <p>This was the appeal of William Hagemann from the decree of the court making distribution of the estate of Conrad Schad, deceased.</p> <p>By the Act of January 6th 1864, Pamph. L. 1131, the city of Pittsburgh was authorized to make certain street improvements, and to assess the cost thereof on the properties benefited thereby. If the. assessments were not paid, they were to be filed by the city solicitor as liens, in the same manner as mechanics’ liens, and suits of scire facias and levari facias were to issue thereon. These liens were to have the same priority as other municipal liens. During the lifetime of Schad, under the provisions of this act, liens were filed against his property and-judgment having been obtained, execution issued thereon. At the request of Schad, Hagemann paid the amount of the claims with costs,- to the city solicitor, and took from the latter an assignment of the same on the record. After the death of Schad, the property against which the liens were filed was sold under an order of the Orphans’ Court.- The amount realized from the sale was sufficient to pay Hagemann’s claims, but was not enough to satisfy all the liens' against the property.- : Hagemann claimed that his liens were entitled to priority, and his claim was allowed. To this allowance,-certain lien-creditors excepted, alleging': 1. That the Act of-1864 gave no.priority to these liens. 2.. That said act conferred no power upon the city to assign the same. 3. That the payment by Hagemann was the act of a volunteer and he had no right to either assignment or subrogation as against a prior lien.</p> <p>The court, Hawkins, P. J., sustained these exceptions, allowing Hagemann only his pro rata share of the fund, in an opinion, saying: ■ _</p> <p>_ “ It may be conceded that the city solicitor, as an attorney at law, had no power of assignment either at common law or under the Act of 1864.1 But it does not follow that his act was void. If this were the case' of an ordinary lien, his assignment might be made operative by his principal’s receipt of the amount paid to him (Rowland v. Slate,. 8 P. F. Smith 196); and consequently there would be no right of collateral.objection. It would be governed by the law of agency applicable to private rights.</p> <p>“ But there is a wide difference between these assessments and ordinary liens. They are public burthens, created for the purpose of providing means of paying the costs and expenses of a certain class of municipal -improvements, and are given priority over all other liens, without regard to time of entry, because of their nature and purpose. They do not depend on contract. The power to make and- collect, them is vested in the city, as being an appropriate function of government, and the duty to pay is imposed as being appropriate to. the citizen, They- have no inherent qualities of assignability dr collectibility. The power of the city, and the duty of the citizen with respect to them, depend exclusively on the Act of 1864. That act does not expressly confer authority to delegate this power; it impliedly denies such authority by providing that, when the lien of assessments shall have been satisfied, it shall be so marked on the index of the Municipal Lien Docket.</p> <p>“ It follows from the nature and purpose of these assignments :</p> <p>“ 1. That the power to make and collect . them as preferred claims, being an attribute of sovereignty, could not be delegated. It could be exercised by the city alone. Finney v. Commissioners, 1 S. & R. 62 ; Mclnerny v. Reed, 23 Iowa 410 ; Russell’s Appeal, 9 P. F. Smith 401; Philadelphia Association v. Wood, 3 Wright 73; Mellon v. Hartzhorn, District Court Allegheny Co., 1 Auditors’ Rep. Docket 322.</p> <p>“ 2. That the priority of lien of these assessments, having been given for a special and limited purpose, was satisfied by the accomplishment of that purpose. That purpose was the payment of the amount of the assessment into the city treasury.</p> <p>“ 3. That therefore the priority of lien of these assessments had no quality of assignability and the city no power to assign. Griffing v. Pintard, 26 Miss. 173; Jackson v. Clark, 18 Johns. 441; Mclnerny v. Reed, supra; Schenk v. Peay, 1 Dillon 267.</p> <p>“The hazard to the citizen and to the public of investing the city with the power of assignment in such cases, is obvious.</p> <p>“ If a single assignment, with its incidents, can be thus transferred to a private individual by the city, the whole list of assessments may be transferred. The functions of government would thus be placed in irresponsible hands, and a wide door opened to fraud and oppression. History teaches that a ‘ farmer of taxes is of all creditors the most rapacious.’ Neither the opportunity nor disposition would be wanting to pervert to the purposes of private gain or personal malice, those extraordinary powers which ought only to be exercised by a paternal government: Mclnerny v. Reed, supra. It would he an easy matter, for example, to divest the lien and destroy the value of the first mortgage without the knowledge or fault of the mortgagee. The lien of the assessment is given priority by law over all other liens, without regard to time of entry; and consequently a sale thereon would divest the lien of a prior mortgage: Pittsburgh’s Appeal,, 20 P. F. Smith 142. Inquiry at the place designated by law for receipt of the amount of the assessment, would have disclosed payment, but no record of the assignment of the lien. It is no part of the duty of the city to make such record. Its interests terminate with the payment of the assessment. The mortgagee could not be expected to inquire further; and yet, notwithstanding his diligence, he will have lost his lien, if the assignment be valid, and the assignee have perhaps become the owner of his security at a merely nominal price, So, the substitution of the assignee to the rights of priority of lien of the city would, in many cases, result injuriously to the public, .by the. postponement and loss of subsequently accruing assessments. Suppose, for example, that after such subsequent lien should have been entered, the assignee of the first lien for assessment should issue execution and sell the property assessed, without the knowledge of the city authorities, as might readily happen. Such sale, if valid, would divest all liens, and the assignee would be entitled to the proceeds to the extent of his lien in preference to all lien-creditors, including the city, by virtue of his priority of .lien. If the proceeds should be no more than sufiScient to pay his .claim, the city would thus, by its own act, have deprived itself of part of its necessary revenue, and the rights of the subject would have become paramount to those of the sovereign. And thus by farming out the whole list of assessments, which would be as much within its corporate powers as the transfer of an assessment against a single property-holder, the loss would be proportionately increased.</p> <p>“ The case of Mellon v. Hartzhorn, supra, is at once a practical illustration of the dangerous tendency, and of the denial of the right of such assignment. A lien was .entered by the city of Allegheny, for grading and paving Eobinson street, under a statute similar to the Act of 1864. On payment of the amount of the assessment to the city solicitor, he assigned the lien to the payor. Subsequently, another lien was entered by the city against the same property, for grading, &c., Grantham street. The property assessed having been sold for an amount not sufficient to pay both assessments, the court (Hampton and Williams, JJ.), .appropriated the whole fund to the city, thus treating the Eobinson street lien as .having been extinguished, so far as the city was concerned, notwithstanding the assignment. And this is the true doctrine. The right of .priority of lien is. part of the machinery of government for the .collection of its dues: Grilling v. Pintard, supra. It overrides private rights of property, and was never intended to be controlled by the feeble hand of the citizen. After assignment it loses its character of public burthen for public purposes, and thus the only -basis upon which.its quality of priority could rest is taken away. If it has any vitality at all, it is simply as an ordinary lien. There .may be..cases in which the priority of lien will be maintained for certain purposes after assignment. Thus, where one of several lien-creditors'pays, and takes an assignment of a municipal lien for' his own protection, it may be that equity will continue such lien as between him and his co-lien-creditors. Justice would seem to require it. . But in the case now before the court the assignee has no such equity. . He declares that his only object in paying the assessment was to befriend Schad.</p> <p>.“These reasons lead to the conclusion that payment to the city of the amounts of the assessments, against the property of Conrad Schad, discharged their priority of lien.”</p> <p>From the distribution made in conformity with this opinion, Hagemann took this appeal.</p>

<p>Appeal from the decree of the Court of Common Pleas of Cambria county: Of October and November Term 1877, No. 224.</p> <p>Appeal of William Flattery from the decree of the court granting a divorce a vinculo matrimonii from his wife, Mary Flattery.</p> <p>The wife, the libellant, in her petition set forth that she had married the respondent, William Flattery, on April 23d 1874, and that from a short time after their marriage the respondent had cruelly and barbarously treated the libellant and endangered her life; and had offered such indignities to her person as rendered her condition intolerable and life burdensome, thereby forcing her to withdraw from his house and family. It also set forth in detail the character of the cruel and barbarous treatment and the indignities offered to her person.</p> <p>The respondent was served with the subpoena, and in his answer denied every material averment contained in the libel. An issue was then made up on the averments of the libel and the denials of the answer.</p> <p>At the trial no other witnesses were examined except the libellant and respondent, and the latter denied every material averment of the libellant. The court reserved the question of law raised by the defendant’s tenth point, as follows:—</p> <p>“ The uncorroborated testimony of the libellant is not sufficient evidence to justify the jury in returning a verdict for libellant, and her testimony being uncorroborated and denied, the verdict must be for the respondent.”</p> <p>The verdict was for the libellant, and, on motion, after argument, the court (Dean, P. J.) entered judgment on the verdict and a decree a vinculo matrimonii.</p> <p>From this action of the court this appeal was taken.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 116.</p> <p>Debt by the Central Board of Education of the City of Pittsburgh against James McQuiston and others, sureties on the bond of the Tenth Ward Bank, to recover a balance, with interest, which the plaintiff alleged was due by the bank, as the depositary or treasurer of the board.</p> <p>A case wras stated, for the opinion of the court, wherein it appeared that the bank was made the depositary or treasurer of the board, under the provisions of the Act of February 24th 1870, Pamph. L. 281, and contracted to pay 6Jper cent, interest on daily balances, and to charge 8 per cent, on over-drafts. The Act of 1870 provided, inter alia, that the Board of Education should select from the several banks a treasurer or place of deposit, which should give bond, with sufficient sureties, and pay for the use of the school fund the highest rate of interest on current balances. This Act of 1870 was the supplement to the Act of February 12th 1869, Pamph. Li 967, wherein it was, inter alia, provided that the Board of Education should annually choose a treasurer, who should be allowed to retain for his services a sum not exceeding one per centum on the money received and paid out by him.</p> <p>The bank having, at the end of the second year, ceased to act as depositary for the plaintiff, the present suit was brought to recover from the defendants a balance of $2518.02, alleged by the plaintiffs to be due and payable to it by said bank, on settlement of a final account, with interest from June 1st 1874,</p> <p>The defendants denied this indebtedness, for the following reasons :</p> <p>1. That by the 10th section of the Act of February 12th 1869 (which remains unrepealed), unless the court should be of opinion that the Act of February 24th 1870, repeals the same, said bank, as treasurer of the Central Board, was entitled to receive a commission not exceeding one per cent., as set out and nrovided in section 10 of said Act of February 12th 1869, on all moneys that gassed through its hands as depositary, under the contract made with the plaintiff; and</p> <p>2. That the contract made by the plaintiff with the bank was usurious and cannot be enforced as to the excessive interest.</p> <p>The court, Stowe, P. J., in an opinion,' said:</p> <p>“ The questions raised by the case stated are :—</p> <p>“ 1. Whether plaintiff, under the supplement to the Act of 12th of February 1869, approved the 24th of February 1870, has a right to make a valid contract with the Tenth Ward Bank, for which the defendants are sued in this case as sureties for the payment of a greater interest than 6 per cent., for the privilege of acting as treasurer or depositary for the plaintiff.</p> <p>“ 2. Whether the provision in said Act of 12th of February 1869, ¿that the treasurer shall be allowed to retain for his services (as such) a sum not exceeding one per cent, on the money received by him,’ is repealed by said supplement.</p> <p>“Upon the first question, we are clear that the agreement for more than 6 per cent., to wit, as set out in case stated, was valid and legal.</p> <p>“ As to the second, we are not free from doubt, but thinking that the general intent of the legislature in passing the said supplement was to change the entire system as it had existed in regard to the treasurer for the school board, and that the purpose was to enable the board to obtain a compensation for allowing one to be treasurer instead of compelling them to pay for the services of a treasurer, as before provided, we are upon the whole led to conclude that the second question should also be decided in favor of the plaintiff.</p> <p>“Judgment is, therefore, now directed to be entered for plaintiff for $2518.02, with,interest from June 1st 1874, to wit, $3106.45.”</p> <p>The defendant assigned this entry of-judgment for error.</p>

<p>1. In an action upon a mortgage given for purchase-money the vendee may set off damages arising from a breach of warranty of title as to a portion of the premises, but if he has remained in possession in estimating such damages he is not entitled to interest thereon, although a judgment in ejectment has been recovered against him.</p> <p>2. A plaintiff in error must show by the record how the evidence became material, for if it, to all appearance, has no connection with the matter on trial the presumption is that the court were right in rejecting it.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 6.</p> <p>Case by Peter Nagle against the Allegheny Yalley Railroad Company, to recover damages for the death of plaintiff’s son through the alleged negligence of defendant.</p> <p>On the 4th day of November 1875, Jacob Nagle, son of the plaintiff, a lad of fourteen years, was employed in the steel-works of Messrs. Reese, Graff & Woods, on Thirty-second street, in the city of Pittsburgh. The Allegheny Yalley Railroad Company had a lateral track laid for the accommodation of the steel company, from their main track, along Thirty-second street to the Allegheny river. The buildings of the company were erected on both sides of Thirty-second street, and the lateral road ran within three or four feet of the buildings on the west side. The lad was employed in the buildings on the east side of the street, and at the dinner hour had gone over to the buildings on the west side, to eat his dinner, with other boys of his acquaintance. Whilst sitting there, the whistle sounded for return to work, when the boy started up and went through a sliding-door to cross the track, when he was caught by a passing engine and instantly killed. The boy could not be seen by the engineer until he came out of the door, nor could he see the engine. A city ordinance forbids the running of any train at a greater rate of speed than four miles per hour, and requires that the bell of the engine shall be rung when passing along the streets. The witnesses who saw the engine were of opinion that it was running at a rate of about twelve miles. an hour, but could not state whether the bell of the engine was ringing or not, owing to the noise created by the movement of the machinery in the mill.</p> <p>The court (Kirkpatrick, A. L. J.), upon these facts, entered a nonsuit, on the ground that the plaintiff had shown no negligence on the part of the defendant, and that the evidence showed that there had been contributory negligence on the, part of the deceased lad. The court in banc refused to take off this nonsuit, when the plaintiff sued out this writ.</p>

2, of Allegheny county: Of October and November Term 1878, No. 214. Ejectment by William Richardson, Sr., against George K. Stephenson, executor of the will of Julia Richardson, deceased, to recover certain real estate in the city of Pittsburgh.

266. The proceedings in the court below commenced by a petition on the part of the Trustees of the First Presbyterian Church of Pittsburgh, asking the court for a decree to remove the remains of the dead from a portion of the burial-grounds of said church. The facts, in substance, were these: On May 19th 1874, the General Assembly passed “An act (Pamph.

<p>Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 198. In Equity.</p> <p>Appeal of William B. Hewitt and others, from the decree of the court dismissing their bill praying for.an injunction to restrain the city of Allegheny from collecting certain municipal taxes levied by said city upon the lands of complainants.</p> <p>The bill set forth that the complainants were severally owners of lands in the Tenth Ward of the city of Allegheny, which lands, inter alia, were by an Act of Assembly of the 10th of March 1871, erected into the North End District, adjoining the city of Allegheny, out of Reserve and McClure townships, and by a resolution Of councils, adopted the 21st March 1873, in pursuance of the 8th section of said act, annexed to said city. That said lands were not then nor are they now improved city property, but are suburban and rural lands, used as farms, dairy farms, garden lands, and rural residences, with large tracts and lots attached.</p> <p>That on or adjacent to the plaintiffs’ lands there are no city improvements; no graded streets, alleys or sewers, and there is no city plan of lots subdividing said tracts. That there are no graded streets in said ward, and no roads excepting two old township roads and the turnpike and plank-roads, the latter belonging to incorporated companies. That there are no water or gas-mains in or near the plaintiffs’ lands, and no police protection there; no city conveniences; and, in return for taxes collected, there are no appreciable benefits enjoyed or conferred, beyond what accrued to the plaintiffs’ lands before they were annexed to said city; being situate from one to three miles distant from the city line, where it was before annexation on the 21st day of March 1873, when the said district was, on petition of lot-owners, by resolutions of council, taken into said city.</p> <p>The bill then set forth the character and uses of the lands of the several complainants, and the amounts of the valuations thereof and taxes for 1876, and averred:</p> <p>That all of said taxes so levied for the year 1876 are now due, and payment thereof is demanded by authority of said city, and that said taxes are illegally levied and the collection thereof from the plaintiffs is contrary to equity and the provisions of the Constitution of the Commonwealth of Pennsylvania, prohibiting the taking of private property for public use without rendering due compensation therefor, said taxes being a prior lien on said lands, on which the same may be sold on execution for non-payment thereof.</p> <p>That said park tax is specially illegal and unjust, being levied and collected pursuant to the provisions of the Act of Assembly, approved the 26th day of March 1867, entitled “An Act authorizing and providing powers and means for the conversion of the common grounds of the city of Allegheny into parks,” sections seven, eight and nine of which act relate specially to the assessment, levying and collection of said park tax, and printed in the appendix to this bill as part of it. That pursuant to said act park commissioners were duly appointed by the councils of said city, who proceeded to convert the common grounds in said city, in the years 1867 . and 1868, into public parks, and, inter alia, did, under the sections thereof aforementioned, cause plans of the city as it then was to be furnished by the recording regulator, with the lots and their size marked thereon, as in the eighth section of said act is directed, and ' the said commissioners then did assess on the lots and lands within the boundaries of said city, an amount equal to the interest on bonds issued for said park improvement, and payable the first year thereafter, and twenty thousand dollars in addition thereto, as by the seventh section of said act directed, and, it is believed, the said commissioners prepared a schedule of assessments so made, graduating the amounts to be paid by the several classifications of property in said city at said date, which said taxes in the year 1869 were collected by the treasurer of said city. That the plans and schedules aforesaid at said date, to wit, on the first day of January 1869, did not include any part of the plaintiffs’ said lands, or Tenth Ward aforesaid, and that under the provisions of the act aforesaid, the said commissioners, having made their first assessment of said tax according to the plans and schedules aforesaid, and returned the same for collection to the treasurer of said city, as was done prior to said first day of January 1869, could not lawfully thereafter enlarge the plans and basis of assessments, or extend the same over lands thereafter annexed to said city; neither could the treasurer of said city include in his assessments land annexed to the city after the first assessment made by the commissioners aforesaid, and extend said assessment over the lands of the plaintiffs annexed to said city in the year 1873. That under the provisions of said act the plaintiffs’ said lands cannot be legally assessed with said tax, inasmuch as the turnpike and plank-roads aforesaid owned by incoi'porated companies aforesaid, to wit: the Allegheny and Perrysville Plank-road Company, and the Saw-mill Valley Plank Company, are not streets of said city, and further because the said tax is not assessed on the foot frontage of plaintiff's’ lands on the streets, lanes and alleys of said city, but upon each tract, lot or farm at -per acre, without regard to the frontage thereof. And that they are informed and believe, that the tax aforesaid, assessed for park purposes for the year 1876, was not assessed by the treasurer of said city in accordance with said act, but that the amount of said tax to be collected was returned to him for collection with other city taxes, and that the pretended assessment thereof is illegal and void under any aspect of the case.</p> <p>The bill also averred, that the complainants had severally paid to the defendant city, poor, park and sewer taxes for 1873, 1874 and 1875, under said assessments, and claimed the right to recover back those, together with the taxes of 1876, and prayed for an account of said taxes, and that a master might be appointed to state the same. The bill also prayed for an injunction to restrain the collection of said taxes.</p> <p>The answer of defendant averred, that since North End was annexed, water-mains had been laid in parts of said territory, and streets graded, at an outlay of $80,000, and that gas-mains were laid by a private company; denied that said district was illegally annexed, averring that said plaintiffs had repeatedly voted at city elections in said ward since annexation, and that one of said compiainants had been a councilman from said ward, and another an election officer therein; that the park tax of 1876 was assessed by the city assessor and adopted by the treasurer. To all the rest of the bill the defendants demurred, alleging that the complainants were not entitled to the relief prayed for, because the bill did not set forth any matter cognisable in equity.</p> <p>The court sustained the answer and demurrer, and dismissed the bill of complainants with costs, which action was the error assigned.</p>

<p>1. In church organizations those who adhere and submit to the regular order of the church, local and general, are the true congregation, and are entitled to. the custody of a trust fund created for the benefit of the church organization.</p> <p>2. Where the majority of a particular church form a union with another body, holding substantially the same doctrines, the congregation adhering thereto do not forfeit their right to the church property in favor of a dissenting minority.</p> <p>3. McGinnis v. Watson, 5 Wright 9, followed.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county : Of October and November Term 1878, No. 131.</p> <p>Scire facias sur mortgage, given by G. H. Hornbeck and wife to tne Mutual Building and Loan Association of Elizabeth.</p> <p>Hornbeck and wife executed and delivered a mortgage on the property of Mrs. Hornbeck to secure the payment by her husband to said association, of $2000 in weekly instalments, dues on ten shares of the capital stock of the association, and such fines as might be imposed thereon. Suit was subsequently brought on the mortgage. The acknowledgment of the mortgage was taken by a notary. The certificate did not set forth that the contents were made “known” to Mrs. Hornbeck, the word known being omitted therefrom, and at the trial, when the mortgage was offered in evidence, it was objected to for that reason. The court, White, J., however, overruled the objection and allowed the mortgage in evidence, which was among the errors assigned by Hornbeck and wife, who took this writ.</p>

1, of Allegheny county: Of October and November Term 1878, No. 92. The petition in this case, for a writ of mandamus, was filed on behalf of Henry Whclen, against the Select and Common Councils of the city of Pittsburgh.

<p>1. An advertisement, that the party advertising is an agent, is but an ex parte notice, and is not admissible as proof to establish agency.</p> <p>2. lie who seeks to establish an agency, must not only prove the fact of agency, but the extent of the powers of the agent.</p> <p>3. Plaintiff's below contracted to deliver to defendant a quantity of oil. Defendant directed the delivery of the oil to II. & Co. Plaintiffs, under order of B. & Co., whom they believed to bo the agents of H. & Co., delivered the oil to C. Held, that there was no error in submitting the question of fact to the jury whether B. & Co. were the agents of II. & Co., and had authority to direct the delivery to O.</p>

1, of Allegheny county: Of October and November Term 1878, No. 107. Replevin by Kleber & Bro., against William Ward and another, for a piano, distrained by defendants for rent due by J. II. Smith. At the trial it appeared that the plaintiffs rented, the piano to the wife of Smith for her private use, with the privilege of purchasing at a certain price, in which case the payments of rent were to be credited on account.

278. Archibald Neel died intestate in 1854, seised of real estate in Allegheny county, proceedings for the partition of which were commenced in the Orphans’ Court at June Term 1865. The inquest returned that said real estate could not be divided, and valued the same at §70,000.

<p>A school district erected a schoolhouse upon a lot, and occupied it for school purposes for thirty years. A larger schoolhouse becoming necessary, the school board agreed with M., to whom the lot belonged, that if he would pay them a certain amount for the old schoolhouse, they would abandon his land and build a new schoolhouse elsewhere. In an action by the board to recover this amount from M., Held, that this contract was not within the Statute of Frauds; that the sale to M. was a deliberate indication of an intent to abandon the property for school purposes, and the matter was made absolute, conclusive and irrevocable by the withdrawal of the board from the possession of the premises; that it was not the deed of the district that was necesgary to execute the contract, but its act of abandonment, and that it was entitled to recover.</p>

1, of Allegheny county: Of October and November Term 1877, No. 255. .

2, of Allegheny county: Of October and November Term 1878, No. 194. This was an action of assumpsit, brought by Arthur Hobson, trustee of the Allegheny Trust Company, against William P. Logan, as a member of the firm of William P. Logan & Bro., upon their endorsement of a certain promissory note, a copy of which is as follows :— “§1250.00 Pittsburgh, August 1st 1874.

1, of Allegheny county: Of October and November Term 1878, Nos. 62J, 110, 111, 112. These were actions of assumpsit brought by T. B. Wilgus against the Millville Mutual Fire Insurance Company, the City Insurance Company of Pittsburgh, the Ben Franklin Insurance Company of Pittsburgh, and the Kenton Insurance Company of Kentucky, respectively,' on policies of insurance.

<p>Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1878, No. 256.</p> <p>Appeal of Margaretta Schad from the decree of the court surcharging her as administratrix of the estate of her husband, Conrad Schad, deceased, with the proceeds of a policy of insurance on the life of said decedent.</p> <p>Conrad Schad, of Pittsburgh, Pa., was killed by a fall from a wagon on June 30th 1876.</p> <p>Margaretta Schad, on July 6th 1876, took out letters of administration, giving an administration bond, with sureties in the sum of $2000.</p> <p>The administratrix filed her account January 16th 1878.</p> <p>The Orphans’ Court, on exceptions filed by the creditors of Conrad Schad, deceased, surcharged the administratrix with the sum of $3515.22, the proceeds of a policy in the Knickerbocker Life Ins. Co., on the life of said Conrad Schad.</p> <p>This was the main question involved in this appeal, and in this it was claimed the court erred.</p> <p>The said policy was taken out on the life of Conrad Schad, on the 25th of October 1869, for the benefit of himself. In connection with the policy was offered in evidence the following, written by Conrad Schad, in German, in a book belonging to him, this being a free translation:</p> <p>“Pittsburgh, 11th December 1875. I, Conrad Schad, husband of Margaretta Schad, have insured my life with the Knickerbocker Company, in New York, for four thousand dollars ($4000). I, Conrad Schad, assign the whole amount, $4000, to my wife, Margaretta Schad, after my death, when she can do with it according to her best will, without partiality toward her children. This I have written with good sound mind, and set my name to it.</p> <p>Conrad Schad.”</p> <p>It was objected that this was a testamentary paper, and as such, not properly proven, and the objection.was sustained. There was also some oral evidence of a gift of the policy by Conrad Schad to his wife in 1874. . Upon testimony, on argument, the court below, Hawkins, P. J., decided that the wife, as administratrix, be surcharged with the amount of the insurance, in an opinion, saying :</p> <p>“If it be meant by the expression used in the Act of April 15th 1868, Pamph. L. 103, ‘assigned bona fide,’ that there should be an actual assignment, that fact must be clearly shown; if it be meant that the assignment must be without intentional fraud upon creditors, that fact must be shown. In either view, the burden of proof is on Mrs. Schad in this case. Prima facie the title to the fund claimed is in the estate.</p> <p>“ 1. There can be no doubt that the attempted written disposition by Conrad Schad of his policy of life insurance was testamentary in character: Erew v. Clarke, 30 P. F. Smith 170. It was not to take effect, by its terms, until after his death. Not having been proved in the mode prescribed by law, it was not admissible in evidence as a will. If it had been admissible, the testator being insolvent at the time of his death, the legatee would take nothing. But it is of value, indeed necessary, in explaining Schad’s declarations and the sense in which he used the word ‘ assigned,’ in respect of his policy. Those declarations refer to an act of disposition, and the testimony of the insurance agent sufficiently identifies this writing as being that act. That writing is therefore the best evidence of Schad’s intentions. The evidence of his declarations is merely secondary and referential in character. It follows that he did not make an assignment, but a testamentary disposition. The word ‘assigned’ was used in the sense of ‘willed.’ This view is strengthened by Schad’s possession of the policy; by his personal interest in keeping the policy alive; by the testimony of the insurance agent, who was the only disinterested witness called on this branch of the case; and by the payment of premiums out of funds which otherwise should have been appropriated to the claims of creditors; and is consistent with an honest purpose. The written disposition must be presumed to have been made with deliberation and care, and without any intention other than that which appears on its face.</p> <p>“ 2. The intention of Schad with respect to his creditors in his attempted disposition of this policy can only be inferred ; there is no direct evidence. If that disposition was testamentary, it was clearly without fraud; his beneficiary would take subject to their claims ; ii it was intended as an assignment, it was certainly not made ‘ bona fide’ so far as they were concerned ; it was the fruit of property to which they were justly entitled. He was totally insolvent at the time of the alleged assignment, and so continued to the time of his death. With the proceeds of this policy constituting part of the assets of the estate, a large number of creditors will got a dividend on their claims; without it, they will get nothing, although some of them, it is fair to presume, are in as needy circumstances as this widow'. It is impossible to see upon what principle of justice or equity their title to the fund can be denied. Mrs. Schad paid nothing for it; for she had no means with which to pay. She has therefore no equity as against these creditors.”</p> <p>The accountant took this appeal, alleging that the court erred in surcharging her with the proceeds of the policy.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 71.</p> <p>Scire facias sur mortgage, by A. F. Baum for use of S. P. Fulton, The Pittsburgh Savings Bank, The City Deposit Bank & Trust Co., and the National Trust Co., against Michael O’Hara and Frances A. O’Hara, his wife.</p> <p>At the trial, it appeared that Mrs. O’Hara joined with her husband in the execution of a mortgage, on August 22d 1871, to A. F. Baum, to indemnify the latter to the extent of $15,000, for any loss he might sustain by reason of endorsements already made or to be made, of the paper of said Michael O’Hara. Under said mortgage, Baum endorsed over $15,000 of O’Hara’s paper, none of which, with a trifling exception, was ever paid by either O’Hara or Baum, and which was all in the hands of the use parties plaintiffs, who were holders for value. On June 5th 1873, Baum assigned said mortgage to S. B. W. Gill, who, on September 3d 1873, re-assigned it to Baum, who in turn, on May 23d 1874, assigned it to S. P. Fulton. Baum had paid a small portion of the paper, and Fulton procured some of it after the assignment to him, but the bulk of it was in the hands of the use plaintiffs.</p> <p>Among the points submitted by the defendants, were the following, to which are subjoined the answers of the court, Fetterman, J.:</p> <p>1. That this mortgage was to indemnify A. F. Baum against loss or damage for the use of his name upon the paper of Michael O’Hara, and not a security for the paper in whosoever hands it might come, and outside parties holding such paper, have not, by virtue of their ownership of said paper alone, any rights in said mortgage, and it being shown by the plaintiffs’ evidence that S. P. Fulton is assignee only of said mortgage, without any evidence that he holds the same for any one but himself, no recovery can be had thereon for such outside parties; and notes held by the National Trust Company, J. T. Stockdale, trustee of the Pittsburgh Savings Bank, the City Deposit Bank and Trust Company, &c., should be excluded from the consideration of the jury.</p> <p>Ans. “ That point is refused. As I have already stated, if these parties held this paper, and it was taken as paper secured by this mortgage, they would be entitled to recover; and as to the mortgage being assigned to Mr. Fulton in trust for these parties, it is immaterial whether Mr. Fulton was interested in the matter or not. But Judge Mellon testifies that Mr. Fulton paid over the amount of his claim, and took an assignment of it. If he did, he would be an interested party, but independent of that Mr. Baum would have a right to assign this mortgage to whomever he saw proper, to hold for the benefit of ’the parties who were to be protected by the mortgage.”</p> <p>3. If the plaintiff is entitled to recover at all, it would be only for such notes as A. F. Baum had lifted at the date of the assignment to S. P. Fulton.</p> <p>Ans. “Refused.”</p> <p>4. The assignment of the mortgage to S. P. Fulton was an abandonment of it as an indemnity against the said paper, and none of said paper being shown to have passed to said Fulton or to have come into his possession prior to the bringing of this suit, the plaintiff cannot recover.</p> <p>Ans. “Refused.”</p> <p>5. That as A. F. Baum assigned said mortgage absolutely, as appears by the record, and directly thereafter went into bankruptcy, the liability of Mrs. O’Hara under the mortgage, if liable at all, would be for only as much as is shown to have been said Baum’s loss and damage up to that time.</p> <p>Ans. “ That point is refused. He is not only liable on this mortgage for the amount Baum paid prior to his bankruptcy, but for all the other paper I have spoken of up to the amount of $15,000 that was endorsed by him under and in pursuance of the arrangement of this mortgage.”</p> <p>6. Under this mortgage and the evidence, the plaintiff is not entitled to recover, at least for notes (certain notes specified).</p> <p>Ans. “Refused.”</p> <p>9. While the mortgage was in S. B. W. Gill as assignee it was not any indemnity for any paper issued by O’Hara and endorsed by Baum.</p> <p>Ans. “ Refused.”</p> <p>In the general charge, the court, inter alia, said:—</p> <p>“All notes that were endorsed by A. F. Baum for Michael O’Hara, in pursuance of the arrangement, and which this mortgage was given to secure, not exceeding $15,000, are covered by it, and if in the hands of third parties, they would be entitled to the rights of Baum under this mortgage, and [if Baum assigns it to Mr. Fulton or to any person else for his own benefit, to the extent that he had paid out on those notes and for the benefit of other parties who held that paper, they would be entitled to come in through Baum, and claim- the benefit of the mortgage.] So that in this case, [if you find that these notes in suit were executed by O’Hara and endorsed by Baum, under and in pursuance of this mortgage, and have not been paid by Michael O’Hara, the maker of the paper, and are still -held by these parties for whose use this suit is now brought, they would be entitled to a verdict for the full amount, not exceeding $15,000, with interest on the notes.] If you find the notes in suit were all executed by O’Hara and endorsed by Baum under and in pursuance of this indemnity he had to secure him, and were discounted for O’Hara, he receiving the proceeds thereof, and that he has never paid them, the plaintiffs would be entitled to your verdict.</p> <p>“ [It is further contended that the notes held by the National Trust Company were executed and delivered to the bank or endorsed by Baum during the interval that he had assigned this mortgage. It appears by the record that he assigned the mortgage to Gill on June 5th 1873, and that it was re-assigned to him Sep-, tember 3d 1873. It is said that while it was assigned to Gill, the notes held by the National Trust Company were executed, and the point is made that those notes would not be protected by the mortgage. Whether they were or were not made at that time, if Baum assigned this mortgage to Gill for the purpose of securing him on some matters between themselves, it would not, as against Mrs. O’Hara, affect Baum’s right under this mortgage (if he still endorsed those notes), to get the mortgage back to secure him. He would have a right, notwithstanding the temporary assignment of the mortgage to Gill, to hold this indemnity as against those notes also.”] ’ '</p> <p>Verdict for plaintiff for $19,575, and after judgment, defendants took this writ, assigning for error, inter alia, the answers to the foregoing points and the portions of the charge in brackets, noted above.</p>

<p>W., a resident of Kansas, wishing to secure a loan from M., a resident of Pennsylvania, executed in Kansas a bond' and mortgage which specified no rate of interest or place of payment, and mailed this to H., a broker, in Pennsylvania, who negotiated the loan and acted as the agent of both W. and M.</p> <p>H. delivered the bond and mortgage to M. and secured the money. M. subsequently obtained a judgment against W. in Pennsylvania on a scire facias, issued on the mortgage, which judgment included interest at the rate of seven per cent., the rate paid in Kansas. W. paid the judgment, but brought an action to recover the excess of interest over six per cent., the legal rate in Pennsylvania. Held, that this was a Pennsylvania contract and that "VY. was entitled to recover.</p>

<p>Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 144.</p> <p>Appeal of G. E. Bergman from the decree of the court dismissing the exceptions and confirming the report of the auditor to award distribution of the proceeds of the sheriff’s sale of the real estate of John Henry Hackman.</p> <p>The levari facias under which the fund for distribution in this case was realized, was issued upon a judgment recovered at June Term 1877, upon a mortgage given by John Henry Hackman to Henry F. Eggers, upon certain lots of ground in Allegheny City, and by the latter afterwards assigned to Casper Will. This mortgage bore date the 19th of August 1874, and was duly recorded on the 21st of the same month.</p> <p>The sheriff having applied this fund, after payment of costs and taxes, to the judgments of C. E. Kenneweg and Eggers, to the exclusion of the judgment of G. E. Bergman, the latter thereupon excepted to the sheriff’s return making this appropriation, and assigned as the reason for the exceptions that his judgment was a lien on the real estate sold prior to the judgments thus preferred, and consequently entitled to be first paid out of the proceeds of the sale.</p> <p>The Bergman judgment was recovered on the 8th of November 1872, the Kenneweg judgment on the 3d of December 1873, and the mortgage on which the Eggers judgment was recovered was recorded still later, on the 21st of November 1874.</p> <p>The defendant in the writ was the owner of the property sold, from the 12th of July 1864 until sheriff’s sale thereof on the 8th of June 1877.</p> <p>It was objected to the Bergman judgment that the defendant in said judgment, though confessedly the same person as the defendant in the writ, was not properly named, and therefore that said judgment was no lien on the premises as against other encumbrances. This raised the only question in dispute.</p> <p>The auditor, inter alia, reported: — ■</p> <p>“ The full name of the defendant in the writ is John Ilenry Hackman, though he has been in the habit of omitting the first name, John, in writing his signature. His full name appears in the Eggers judgment. In the Kenneweg judgment the name is Heinrich Hackman, Heinrich being the German for Henry. But in the Bergman judgment it is Ilenry Heckman, the first vowel in the surname being e instead of a, and was so spelled by mistake, for the judgment was entered by confession upon a judgment-note, which was signed correctly in German characters Heinrich Hack-man, but the prothonotary’s clerk, who entered it upon the records of the court, and who was not acquainted with the German language, appears to have misunderstood the directions of the persons who delivered it to him for entry as to the spelling of the name. He was directed to spell it Henry Hackman, and, to insure against mistake, he wrote the name at the time on the back of the note as he doubtless understood it, but he committed the same error there as in the entry of the judgment upon the appearance and judgment dockets, spelling it Heckman instead of Hackman. But while the plaintiff in the Bergman judgment admits this mistake in the surname of defendant, he maintained that it did not amount to a variance, such as would vitiate the lien of the judgment, and insisted that it cable within the principle of idem sonans. The decision chiefly relied upon for this position was Myer v. Fegaly, 3 Wright 429.</p> <p>“ The auditor, however, cannot concur in this view, and is of odinion that the mistake was material, and that the sheriff was therefore right in rejecting the judgment on the distribution of the money.</p> <p>“The proof was that Hackman and Ileckmen are pronounced differently in the German language, as they certainly are in the English. In the German language Hackman is pronounced as if spelled in English Ilawkman, and Heckman as if spelled Hake-man. The case of Myer v. Fegaly has, therefore, no application, for while Bubb and Bopp were there held to be the same as respects a purchase of real estate from one against whom judgments had been entered in both forms, it was decided that the variance was immaterial only because in the German language they had the same sound. But if the evidence in this case was not only that there is no identity of sound in the pronunciation of Hackman and Heckman, but that these surnames have a different origin and designate different persons and different families.</p> <p>“ In fact, the list of liens in question contains the name of Heck-man as a defendant in several judgments, but with the exception of the judgment in dispute so entered by mistake, not one was against the defendant in this writ.</p> <p>“The auditor, in the conclusion to which he has arrived in this case, relies mainly on the opinion of the Supreme Court in Ileil and Lauer’s Appeal, 4 Wright 458, where it was held that in the distribution of the proceeds of a sheriff’s sale of the real estate of George P. Yoest, a judgment entered against him in the name of Joest is not entitled to come in as against subsequent liens properly entered, even though the names have the same sound in the German language.”</p> <p>The court dismissed the exceptions filed to this report, and confirmed the same, whereupon this appeal was taken.</p>

<p>1. While it may be taken for granted that after the expiration of the six months allowed by the Act of Assembly for the filing of a mechanic’s lien, no material amendment of the claim filed will be admitted, yet where the amendments were immaterial and unnecessary they will not invalidate the claim.</p> <p>2. A mechanic may file his lien against the person who holds the legal title when the work was commenced, and he is not bound to inquire further or take notice of any subsequent conveyance of the property.</p>

<p>W. by his will dated prior to 1833, gave and bequeathed, inter alia, “ to my Bon Aaron, the plantation whereon 1 now live, absolutely * * * subject to the maintenance of my wife and my son Aquilia during their natural lives * * * my son Aaron having the entire use and control of the said plantation, as well during the life of my wife as afterwards * * * and if either of my sons James, Aaron or Joseph, should die without lawful issue, then the portion of the deceased one to bo equally divided between the survivors of them.” Held, that Aaron took an estate tail with contingent remainder in fee to his brothers if they should survive him.</p>

<p>Certiorari to and appeal from the decree of the Orphans’ Court of Allegheny county: Of October and November Term 1878, No. 292.</p> <p>Margaret Foster died in Iowa in 1875. In her lifetime she had sold certain real estate in Allegheny county, Pennsylvania, and had taken a mortgage thereon upon which there was due, at the time of her death, a balance of $485. The register of Allegheny county granted letters of administration to James Evans, who collected this balance, and duly accounted therefor. On the 20th of September 1876, this account was taken to the Orphans’ Court for audit, the balance for distribution being $380. Before the auditor, Ellen Barry, a resident of Iowa, presented a claim founded upon two promissory notes given by the decedent, Margaret Foster, which aggregated $500. A commission was issued and testimony taken in Iowa, and the cause was continued until 3878, when it was heard and held under advisement. No other claims were presented to the court. On the 2d day of February 1878, after the hearing, and without notice to the claimant or her counsel, the court allowed to be filed a certificate that letters of administration had been granted on the decedent’s estate, on the 8th of April 1875, at Dubuque, Iowa, to A. K. Foster.' It appeared from this certificate that the claim of appellant under the law of Iowa was barred by reason of its not having been presented to the administrator in Iowa, within the prescribed time after his appointment. The promissory notes, which were made in Iowa, were valid under the laws of that state.</p> <p>The court (Hawkins, P. J.), entered the following decree: “And now, to wit: February 2d 1878, this matter came on for hearing, audit and distribution at this term and testimony taken, and thereupon it appearing to the court that the domicile of decedent was in the state of Iowa, and that there are no domestic claimants to the fund here for distribution, either creditors, heirs, or legatees, and it further appearing that letters of administration have been issued at the domicile of decedent to Alexander R. Foster, it is ordered, adjudged and decreed that the fund in the hands of James Evans, administrator, after deducting costs of audit, &c., be paid to Alexander R. Foster, administrator of the domicile as aforesaid, upon his giving an additional bond in the sum of $700 to be approved according to the laws of Iowa, and a certificate of same being filed in this court.”</p> <p>From this decree this appeal was taken.</p>

1, of Allegheny county: Of October and November Term 1878, No. 169. Case by Samuel McCrickart, for himself and in trust for a number of others, to recover back from the city of Pittsburgh certain taxes paid by him to said city. A case in the nature of a special verdict was stated for the opinion of the eourt, of which the following is the substance: “ That in pursuance of the Act of 10th May 1871, Pamph.

<p>1. W. was the proprietress of a drinking saloon, in which she employed female waiters, prior to the passage of the Act of March 28th 1878. That act prohibits the employment of any female in such saloon, to sell, vend, offer, procure, furnish or distribute, any intoxicating drinks to any person or persons. After the approval of the act, W. discharged her employees and entered into partnership with them. Held, that this was an infraction of the spirit of the law and was indictable.</p> <p>2. By a proviso to the first section of said act, it is provided, “ that nothing in this act shall be so construed as to prevent the wife or daughter, or any person having a license for selling or distributing aforesaid liquors.” It was contended that the indictment should show upon it’s face that none of the female employees came within this proviso. Held, that this was not necessary.</p> <p>3. The act of employment being a single offence, there was no misjoinder in not entering a separate indictment for each female so employed. So also in imposing a fine of §800, the minimum punishment prescribed in the act, 8100 for each female employed, there being no misjoinder there'was no error in the sentence.</p>

<p>A court of equity has no jurisdiction of a bill for an account of profits brought by one, out of possession, who claims tobe a joint owner of an oil well against his alleged co-tenants, until the question of title is first determined in a court of law.</p>

- 141. Replevin by J. B. Sneathen and B. F. Wilson, partners, trading as J. B. Sneathen & Co., against J. W. Grubbs & Co..

<p>B.. a settler, sold a tract of land to M. by a deed which contained the following clause, “ provided that I, the said B., am entitled to hold thesaid tract of land by my settlement.’" The title of B. by settlement proved worthless by reason of a precedent warrant and survey. Two of the heirs of M., the grantee, entered the premises under a grant from another person, arid by' themselves: their heirs and vendees, for thirty-seven years, had exclusive' and- undisputed possession, clearing, fencing and'farming the land,-paying the taxes; and receiving the rents, issues and profits. Held, that even if there .was an implied or resulting trust in favor of their, co-heirs, the Statute of Limitations applied.</p>

<p>1. In cases of compulsory arbitration the service of the certified copy of the names of the arbitrators and the time and place-of meeting may be made under the provisions of the Act of March 23d 1877, on the party, or his agent, or attorney,'and if he has no attorney, the service may be in a like manner as of a summons in a personal action.</p> <p>2. Irregularities in appointing arbitrators, or in their proceedings, when apparent on the record, may be corrected by writ of error. But those which are ma.de so only by extrinsic proof, can be corrected only by the court below. In the Supreme Court every presumption will be made in favor of the award unless flagrant error appears on the record.</p> <p>3. While; the proceedings remain in court, that is, until the arbitrators are appointed, it must appear By the record that everything is regular; but after they are appointed, the proceedings aré out of court and need not be reduced to Writing. - '</p>

<p>Error to the Court of Common Pléas of Greene county: Of October and November Term 1876, No. 110.</p> <p>This was an action on a promissory note. The jury found a special verdict, finding the facts as follows:</p> <p>That the defendant gave a note to the plaintiff, dated October 10th 1874, .calling for $10,575, payable twenty-five days afterdate. ■That $75 was charged as the interest on $10,500, from its date to maturity of said note and put in the note. That for excessive interest over six per cent, on all the transactions that Israel Stephens had with the plaintiff from April 7th 1870, there was charged to him the sum of $1907.04, and that the' note in suit was a renewal of a note given by Israel Stephens in his lifetime to said plaintiff, and .that the balance due the plaintiff at this date, less all the interest from the date of the note in suit, and the amount of excessive interest- as aforesaid, was the sum of $8592.96. . :</p> <p>Judgment for plaintiff was entered- upon this verdict.</p> <p>The court, Willson, P. J., said:</p> <p>“ In this action the Monongahela National Bank of Brownsville seeks to recover from Barzilla Stephens, the sum of $10,575, being the amount' of a note signed by Barzilla Stephens, bearing date the 10th day of October 1874, payable to the .order of R. S. Long, twenty-five days after the date of said note. The defendant does not deny having signed the note, but claims, however, in addition to the offers that were made by his' counsel and ruled out by the court, that he is entitled to a deduction from the amount of the note of $75 excessive interest included in the note as well as the interest paid in excess by Israel Stephens in other transactions between Israel Stephens and the Monongahela National Bank of Brownsville. It appears from the evidence that the Monongahela National Bank of Brownsville had a note of Israel Stephens’s for the sum of $10,500, and that before that note became due Israel Stephens died. At its maturity it became necessary that something should be done with the note, and in consequence this note was given, being signed by Mr. Barzilla Stephens, and endorsed by Azariah Stephens, R. S. Long and Barzilla Stephens. It appears further that Azariah and Barzilla Stephens administered upon the estate of their brother Israel, and hence the defendant claims that he is entitled to a credit on this note for all sums that Israel Stephens would have been entitled to if he were living and the suit was brought against him, and wo state, and instruct you, that he is not only entitled to a credit of the $75 excessive interest charged in the note, but also for all excess of interest over and above the legal rate allowed by the law of Pennsylvania, paid by Israel Stephens in other transactions with, the Monongahela National Bank of Brownsville within the last six years.</p> <p>“The act of Congress under which these banks hold their charters provides, that when they receive or reserve, or have charged a greater interest than that allowed by the law of the state in which they do business, that they shall forfeit all the interest so received or reserved. In this case it is admitted that $75 was charged to Mr. Stephens on the amount of the note for twenty-five days, at the rate of nine per cent., being three per cent, in excess of what is allowed by the laws of this Commonwealth; and hence we instruct you that the bank forfeits all that interest. And, further, that having taken or reserved that amount of interest in violation of law, that, according to the decision of the Supreme Court, it destroys the interest-bearing power of the noteso that the bank is not entitled to the interest on the note from the day it' became due up to the present time. If we had been called upon to decide this question before the decision of the Supreme Court, our instructions would have been very different. Instead of instructing you that the defendant would be allowed to default the excessive interest paid in prior transactions, we would have instructed you that the defendant could not claim aiiy deduction for excessive interest paid in other transactions by Israel Stephens; as we considered such excess could only be recovered by an action of debt brought within two years, as provided by the act of Congress. And as to the note in suit, wo would have instructed you, that the bank only forfeited the interest during the time that the note had to run — that is, it would forfeit the $75, but would be entitled to the legal interest from tbe time of the maturity of the note up to the present time. But it seems from the decision of the Supreme Court in the cases of Brown v. The Erie National Bank, and Lucas v. The Pottsville National Bank, that our construction of the law would have been erroneous, for the Supreme Court in these cases have decided that the defendant would be entitled to a credit for all the excess of interest over and above six per cent, paid in other and prior transactions within the last six years. And accordingly we instruct you as we understand the Supreme Court to have laid down the law.</p> <p>“ The defendant then is entitled to a credit for the excess over and above six per cent, paid by Israel Stephens, in other transactions than the note in suit, to the Monongahela National Bank of Brownsville. As to the amount of that excess there is no contest. In regard to the note in suit, we instruct you that the plaintiff bank forfeits the $75, and is entitled to no interest from the maturity of the note up to the present time. Deducting the $75, you have the sum of $10,500 due on this note to the bank; and from that sum you must deduct the various sums paid in excess in other transactions — that is, the sum of $1907.04. That deducted from $10,500 leaves the sum of $8592.96 now due the bank from Barzilla Stephens, and for which the plaintiff is entitled to your verdict. But in making up your verdict we want you to set forth the different deductions, so that hereafter in the trial of the other cases between the Monongahela National Bank of Brownsville and the legal representatives of Israel Stephens, it can be seen what deductions have been made in this suit; and we have directed the counsel for fhe plaintiff to prepare a special verdict for you to render in'this case.”</p> <p>The court rejected the following offers of evidence:</p> <p>That the plaintiff has recovered judgment against the said Richard S. Long, one of the real debtors, issued execution, levied on a large amount of personal property, stayed the execution, and released the personal property of said Long. That defendant notified plaintiff to proceed and collect this judgment, as he would not stand bound as surety any longer.</p> <p>That since said notice, the said R. S. Long has had a large amount of personal property which could have been sold on execution on said judgment. That the plaintiff has refused to collect the judgment of the real debtor, although said Long had sufficient real and personal property to satisfy said judgment. This, after sufficient notice from defendant to so proceed.</p> <p>That the note in suit is one of several notes discounted by plaintiff for Israel Stephens and R. S. Long, who were partners in buying and selling cattle and other stock in the west. That the note in' suit and the other notes just referred to were discounted under an agreement , entered into by and between the plaintiff bank and Israel Stephens, that as the plaintiff bank could not loan the said firm of Israel Stephens and R. S. Long, without violating the law of Congress, only one-tenth of the capital stock of plaintiff bank being paid in, nor the individual members of said firm, that said plaintiff bank would discount the notes for said Israel Stephens and Richard S. Long to evade the provisions of the 29th section of the National Currency Act of 3d June 1864 (being section 5200 of the Revised Statutes of the United States), and that the said loans and notes were in excess of the authority and power of said plaintiff to make.</p> <p>The court refused to charge that if the jury believe that, at the time of the original of the note in suit and each renewal thereof was taken, that the bank knowingly, reserved and charged interest and discount thereon in excess of the amount permitted by the National Bank Act to national banks located and doing business in this state, then each of said notes was without consideration to the extent of the sums so reserved and charged as interest and discount.</p> <p>That if the jury believe that the plaintiff knowingly violated any prohibition contained in the National Bank Act at the time it took the note in suit, and the prior notes of which it was the last renewal, then no action can be here maintained upon such contract made in violation of an United States statute.</p> <p>That the plaintiff being a national bank organized and doing business under an Act of Congress, known as the National Bank Act, this court is without jurisdiction over this case.</p> <p>Defendants took this writ of error, and assigned for error the charge, the answers of the court, and the rejection of defendant’s offers.</p>

<p>Error to the Court of Common Pleas of Butler county: Of October and November Term 1876, No. 267.</p> <p>David Kelly, on December 7th 1875, sold a farm to David Henry for 813,000, taking in payment therefor a credit of 82000, due by Kelly to Henry, and a judgment on a mortgage, given by one Guff'y to one Fry, the son-in-law of Henry, for $Uj000, which judgment was assigned to Alexander Mitchell. On December 13th and 14th 1875, and subsequently, judgments to the amount of 850,000 were entered against Kelly. Berg & Co., who held a judgment against Kelly, treated the assignment as void, and as made in fraud of creditors, and levied upon Kelly’s personal property. Wilson, the assignee, petitioned the court to set aside the writs, and Berg & Co., alleging that the assignment was void and conferred no title on Wilson, an issue was directed to try the question of title. On the trial it appeared that the farm sold constituted the greater part of Kelly’s assets; that no consideration passed from Mitchell to Kelly; that Mitchell, who was the cashier of the First National Bank of Butler, subsequently made a declaration of trust in favor of said bank, to which Kelly was indebted. It did not appear that Mitchell was present when the assignment was made, nor was there any evidence to show, that the declaration of trust was made in pursuance of any previous agreement.</p> <p>The following points w’ere submitted by defendants, to which are subjoined the answers of the court:</p> <p>1. That an assignment for the benefit of creditors is not embraced within the acts which are forbidden if done to hinder, delay or defraud creditors.</p> <p>Ans. “Refused.” First assignment of error.</p> <p>2. That no act of David Kelly done before the execution of the deed of assignment, or judgments confessed, can render void the assignment subsequently made for the benefit of his creditors.</p> <p>Ans. “All.his acts immediately before or within a short time before the assignment was made, may be taken into consideration by the jury if they throw any light upon the question as to the motive in making the assignment. He may have prepared himself, hoping to conceal a portion of his estate. If the jury come to the conclusion that was done in this case fraudulently, then the assignment would be fraudulent, and intended to hinder, delay and defraud creditors in the collection of their judgments. With this view of it, already stated in our general charge, we negative that point also.” Second assignment.</p> <p>4. That the assignment of the Fry mortgages by Kelly, and other acts done by him before the assignment, cannot affect the assignment and render it void.</p> <p>Ans. “ We refuse to so instruct you. We have instructed you to the contrary ; acts which precede the assignment may be taken into consideration if they throw any light upon his motives in making the assignment.” Fourth assignment.</p> <p>6. That the deed of assignment to Allen Wilson is in proper form, and on its face appears to have been signed, executed, acknowledged and recorded within thirty days after its execution, and is, therefore, a formal lawful deed of assignment.</p> <p>Ans. “ This point may be affirmed as a proposition of law, but it is not applicable to this case. The formality and the execution of the assignment are not called in question. That the assignment made is formal, duly executed, acknowledged and recorded within the proper time may be admitted. That is not the question in the case. This point is not applicable to the case. The formality of the execution.of the assignment is not called in question ; it is the motive that prompted the act, whether it was done with intent that was good of intent that was not good.” Fifth assignment.</p> <p>7. ■ That if Allen Wilson accepted the duties and trusts imposed by the deed and the laws, gave bonds, filed an inventory and accepted the trust, the deed of assignment is valid, and the verdict of the jury should be for the defendant.</p> <p>Ans. “ We refuse to so instruct you. We state again that the formality of the deed of assignment and the regular proceedings of the assignee are not questions coming before the jury at all, because they throw no light upon the questions or inquiry here. While it may be all true that the assignee is going on and discharging his duty under the deed of assignment legally; that still does not answer the question whether or not the assignment made by David Kelly was made with a fraudulent intent by him to hinder, delay and defraud his creditors or not.” Sixth assignment,</p> <p>9. That a debtor has the right in law to prefer a creditor, and the assignment of the Fry mortgage to Alexander Mitchell, cashier of the First National Bank of Butler, for the use of the bank, a bona fide creditor to the extent of the assignment was neither fraud or evidence of fraud, but a lawful act which Kelly had the right to do.</p> <p>Ans. “ We answer that as we have in our general charge that the mere act of making an assignment of the mortgage might not in itself be an act of fraud. This point is not applicable to this case. The inquiry here is whether there was a fraudulent intent on part of David Kelly. The mere questioh whether he had a right to assign and transfer property for the benefit of a special creditor does not come up in the case. It is not applicable to an assignment to Alexander Mitchell, because he was not a creditor, therefore this point is not applicable to this case. The point is refused as not applicable to the case on trial.” Eighth assignment.</p> <p>10. That a deed of assignment for the benefit of creditors is not foeffment, grant, alienation, bargain or conveyance of lands, tenements, hereditaments, goods, chattels or lease, rent common or other profits of the same, nor a bond, suit, judgment execution, or any act or thing forbidden as intended to delay, hinder or defraud creditors, and the verdict must be for the defendant.</p> <p>Ans. “ We would make the same remark with regard to this point, as not applicable to the case on trial, consequently we refuse so to instruct you.” Ninth’assignment.</p> <p>The fourteenth assignment of error was the following portion of the general charge:—</p> <p>“ It appears in evidence that on the 7th of December, just one week before the assignment was made (the assignment was made on the 14th of December 1875, just one week before it is in proof), Kelly made a sale; at that time no judgments had been entered against him; he sold the most important and valuable of his possessions, a farm or tract of land, for the sum of $14,000. There were no judgments on the docket, as his creditors had confidence in him. It appears that in a very few days afterwards judgments were entered against him, which would indicate that judgment-notes were out at that time, or at least debts for which judgments were afterwards entered to the amount of nearly $50,000. When, in a very few days after, he made a sale of this valuable property or tract for $14,000 or thereabouts, judgments were entered.5'</p> <p>The plaintiff offered in evidence, inter alia, the record of an entry of judgment against Kelly to January Term 1876, to which the defendant objected, on the ground that it was not all offered, but only a portion thereof. The court admitted the evidence, which was the twentieth assignment of error.</p> <p>A number of assignments of error were made to the charge, the tenor of the instructions of which was that which pervades the answers to the foregoing points.</p> <p>The verdict was for plaintiff and defendant took this writ, among his assignments of error being’those above noted.</p>

<p>Appeal from the Court of Common Pleas of Greene county: Of October and November Term 1878, No. 807.</p> <p>Appeal of Samuel W. Scott, Receiver of the National Bank of Waynesburg, from the decree of the court dismissing his exceptions to the report of the auditor appointed to make distribution of the proceeds of the sheriff’s sale of the real estate of Godfrey Gordon.</p> <p>The auditor found that B. E. Elenniken, who had been a member of the firm of Gordon, Campbell, Courtney & Co., during a period of about six months, retired from the firm in June 1872, leaving Gordon and Campbell still members, Courtney having also retired about the same time. That Elenniken’s withdrawal was entirely voluntary, with the mutual consent of the remaining partners, and with the agreement that he was to go out of the firm without profit, and that Gordon and Campbell, the remaining members were to pay the debts of the firm, including the rent of the store-room and warehouse which they had rented in December 1871, when the partnership was formed, from John Hays, in the city of Pittsburgh. That John Hays brought suits in the Common Pleas of Greene Co., Pa., to Nos. 298 December Term 1873, and 180 June Term 1874, for two quarters’ rent of the store-room and warehouse, and judgments obtained against Godfrey Gordon, B. E. Campbell and B. E. Elenniken, no service being had upon Courtney. The judgment of the appellant, Scott, against Gordon was to No. 212, June Term 1875. On April 6th 1874, and January 25th 1875, respectively, Elenniken paid the two judgments of Hays, and took assignments thereof. The auditor decided that Elenniken, holding these two judgments, was entitled to be subrogated to the rights of Hays as against Gordon and Campbell, and to share in the proceeds of Gordon’s property. Scott filed exceptions to this report which the court dismissed, and hence this appeal.</p>

<p>Error to the Court of Common Pleas of Washington county: Of October and November Term 1878, No. 150.</p> <p>Joseph Keys sued out a writ of foreign attachment in assumpsit against J. G. C. Lee, summoning John W. Seaman as garnishee, and filed a declaration, setting forth, in the first count, a promissory note, and followed by the common counts for money had and received, &c. The defendant pleaded non assumpsit, and after-wards confessed judgment in favor of the plaintiff for $101.05, as of date September 21st 1876, which was entered accordingly. By agreement filed, the cause was referred to D. F. Patterson, Esq., as referee, under the Act of May 14th 1874, Pamph. L. 166. The facts of the case, as reported by the referee, are as follows:—</p> <p>Joseph Keys, the plaintiff,' executed a mortgage upon his real estate in Smith township, Washington county, Pennsylvania, in the penal sum of $14,000, conditioned for the payment of $7000, in three years from date, with interest semi-annually.- This mortgage, bearing date May 18th 1871, ivas to John S. Lambie, as mortgagee. It had endorsed upon it an assignment from John S. Lambie to Joseph Dilworth, trustee of J. G. C. Lee, dated May 18th 1871, and was recorded in the recorder’s office of Washington county on May 20th 1871. On September 21st 1876, the plaintiff paid the final payment in satisfaction of the mortgage to said John W. Seaman, attorney in fact for the defendant, and on the same day issued this attachment, claiming that he received only $6370 on account of his mortgage; that he paid his semi-annual instalments of interest about the time they fell due; that after the maturity of the mortgage he paid interest for one year, at the rate of ten per cent., upon the balance of the unpaid principal; and that he paid nine per cent, on the balance of the mortgage from May 1875 until it was satisfied.</p> <p>The defendant admitting the receipt of interest in excess of legal rate after the maturity of the mortgage, had confessed judgment for the excess of $101.05, and did not deny that the sum received by the plaintiff for the mortgage was $6370, but contended that having purchased the mortgage through George A. Berry, without knowledge that it was tainted with usury, if it really was so, and in full reliance on the plaintiff’s certificate of no defence, the plaintiff'could not recover.</p> <p>The referee found for the plaintiff the sum by him overpaid on the mortgage, viz., $971.32, with interest from the date of its payment, amounting to $1060.68.</p> <p>The following exceptions by the defendant to the finding of the referee, and here re-assigned for error as overruled by the referee, sufficiently indicate the material facts in the controversy:—</p> <p>1. The referee erred in finding the fact that George A. Berry acted as the agent of the defendant in the purchase of the mortgage of the plaintiff to Lambie, or in the negotiations preceding such purchase.</p> <p>2. The referee erred in -finding that Keys, the plaintiff, was not estopped from making any claim for usury against the defendant by his certificate of “no defence,” which accompanied the mortgage made to Lambie, which certificate with the mortgage was transferred by Lambie to the defendant’s trustee, there being nothing in the evidence to show that either. the defendant or his trustee had any knowledge of'the usurious character of the transaction between Keys and Berry.</p> <p>3. The referee erred in finding that there was due from the defendant to the plaintiff the sum of $971.37, of date 21st September 1876.</p>

<p>1. When a railroad company enters upon land, for the purpose of constructing its road, it is proper for the court to lay down a rule as to the value of a life estate therein, as an independent estate entitled to damages. Harrisburg v. Crangle, 3 W. & S. 460, followed.</p> <p>2. The true rule for valuing the damages as a whole, is the difference between the value of the property before the.making of the road, and its value after the road is made, as affected by it, and of this difference the life-tenant is entitled to the proportion of the whole, which the value of the life-estate bears to the whole difference.</p> <p>3. The net annual value of the premises, multiplied by the years of the life-tenant’s expectancy of life, and reduced by calculation to a present cash value, is not an incorrect mode of determining the value of .the life-estate as compared with the value of the remainder in fee.</p> <p>4. Permanent injuries, arising from severing parts of a farm that have necessary relation to each other and inconvenience are clearly elements in considering the value of the entire farm.</p>

106. Case by David M. 'Torrence against Samuel S. Brown, impleaded with J. M. Schoonmaker, administrator of the estate of William H. Brown, deceased. At the trial before Willson, P. J., it appeared that on the 14th day of June 1870, John K. Ewing sold and conveyed to David M. Torrence, the surface of a tract of land situate in Tyrone township, Fayette county, containing ninety-eight acres j for $7000.

<p>A prisoner on trial for larceny, being on bail, voluntarily left the court room during the absence of the jury, while deliberating over his caso. The jury returned a verdict of guilty, and when the prisoner was called and failed to reappear, the verdict was received and recorded and sentence pronounced in his absence. Ifeld, to be no ground for a motion in arrest of judgment.</p>

<p>Appeal from the Court of Common Pleas of Fayette county: Of October and November Term 1878, No. 228.</p> <p>The Brownsville Railway Company was organized and incorporated under the Railroad Law of April 4th 1868, and the supplement thereto. On September 22d 1875, George E. Hogg subscribed his name to the articles of association of said company, and took two hundred shares of the capital stock of said corporation at §50 each, amounting to the sum of §10,000. The capital stock was duly called in by the board of directors of said company, and Hogg made payments on his subscription from time to time until he had paid §4500 on the same. On the 14th of Nouember 1876, the directors passed a resolution authorizing their treasurer, W. S. Craft, to borrow §2500, and Hogg loaned the company that amount by making two promissory notes, one for the sum of §1500, and the other for §1000, upon which notes the treasurer obtained the money. The notes were made by Hogg, payable to the order of Craft, as treasurer of said company, and he, as treasurer, endorsed them, and had them discounted at Bank of Brownsville, Pa. These notes were renewed from time to time, and in the meantime Hogg paid the treasurer §500, and he, as the treasurer, paid this sum on the §1000 note, and allowed Hogg a credit of that amount on his unpaid subscription, and the §1000 note was then renewed for §500, and from time to time thereafter, and also after the road was sold until Hogg lifted and paid it. The $1500 note was renewed several times before and after the sale of the road until Hogg lifted and paid it also. No action was ever taken by the board of directors in regard to the payment of this loan, nor was there provision made in any way for its settlement. On the 5th of February 1878, the sheriff of Fayette county, by virtue of an execution issued on a judgment obtained by Campbell Brothers against the said company, in the Court of Common Pleas of said county, offered the railroad for sale and sold the same for $16,975, and on the--of March 1878, a deed for said railroad to Charles E. Speer was duly acknowledged by the sheriff-and confirmed by the court; and on March 28d 1878, the sheriff, on leave given, paid into the court $16,889.46, the money made from sale of railroad after deducting the costs on the writ, and on the same day the court appointed an auditor to ascertain claims against the company and report distribution of the funds made from the sale of the railroad. Hogg appeared before the auditor and claimed $2000, with interest from December 8th 1877, being the balance due him on the loan he had made to the company. The other creditors objected to the - allowance of his claim for the reason that Hogg owed the company $5000 on his subscription to the stock of the same at the time the road was sold out by the sheriff; and that the $2000 should have been applied to his subscription, and that the auditor should treat it as having been applied. The auditor allowed him to share in the fund, to which allowance exceptions were filed by some of the other creditors ; and on July 23d 1878, the matter came on for hearing on the exceptions in court, and the court directed that the exception filed to the claim of George E. Hogg, as allowed by the auditor, be sustained, and that the distribution reported by the auditor be corrected by striking out the amount appropriated to the claim of Hogg, and that said amount be distributed pro rata among the claimants returned by the auditor, so far as the same -was necessary to pay their claims. From this decree Hogg took this appeal.</p>

<p>Appeals from the Orphans’ Court of Butler county: Of October and November Term 1875, Nos. 110 and 130.</p> <p>These appeals were those of H. L. Taylor, John Satterfield, J. J. Yandegrift and George Y. Foreman, parties doing business as H. L. Taylor & Co., John Siggins, Peter Hutchinson, Peter Grace, William G. Stoughton and David C. Rankin, guardians of Lewis Brown and Minerva Brown, minor children of Josiah Brown, appellants, and James M. Lambing, John A. Lambing, A. L. Campbell and Robert L. Brown, appellees. And the appeal of H. L. Taylor, W. G. Stoughton et al., from the decree of the Orphans’ Court of Butler county, at No. 4, March Term 1874, made February 25th 1875, approving of a lease for oil purposes, made by' David C. Rankin, guardian of Lewis Brown and Minerva Brown, minor children of Josiah Brown, to A. L. Campbell and James M. Lambing, recorded in Article of Agreement book, No. 1, p. 390, Butler county, and vacating or annulling a decree made in Orphans’ Court, No. 36, June 1873, approving and confirming a lease of David Rankin, guardian, to W. G. Stoughton.</p> <p>At June Term 1873, David C. Rankin, the guardian of Lewis and Minerva Brown, mirior children of Josiah Brown, deceased, presented a petition to the Orphans’ Court of Butler county, praying the court to confirm a lease for twenty years of the lands of his said wards, containing about 100 acres, to W. G. Stoughton, for oil purposes. On June 11th 1873, the court granted the prayer of the petition, and a decree was made accordingly. This Stoughton lease was duly recorded, and subsequently Stoughton sublet a portion of the land to Peter Grace and Peter Hutchinson, and the balance to H. L. Taylor & Co. At March Term 1874, James M. Lambing, John A. Lambing, B. B. Campbell and R. L. Brown, presented a petition to the Orphans’ Court, which set forth that said David C. Rankin, guardian, had executed a lease to A. L. Campbell and James M. Lambing for forty acres of said 150 acres of land belonging to the heirs of Josiah Brown, deceased, for a term of twenty-one years, and for oil purposes, which lease, by assignments, was vested in the petitioners. That said lease was duly recorded in said county. That subsequently to the recording of said lease, said David 0. Rankin leased the whole tract aforesaid to W. G. Stoughton without reserving therefrom said forty acres leased to petitioners. That said Stoughton lease is recorded, and that Grace, Hutchinson and Taylor & Co. are now claiming under said lease, and denying the right of your petitioners to hold and enjoy the said forty acres, notwithstanding said parties had notice of petitioners’ lease before the taking of their lease, and that the lease of petitioners is much more beneficial to the Brown heirs than is the Stoughton lease. The petition then prayed for a citation to Rankin, Stoughton, Grace, Hutchinson and Taylor & Co., that the order approving the lease of Stoughton might be rescinded so far as it interfered with the lease of petitioners, and that the court should approve the lease of petitioners nunc pro tunc, as of the 4th of December 1871.</p> <p>A citation issued, and answer was made by Stoughton for himself and the others who held under him. Testimony was taken, and after argument, the court confirmed and approved'said lease to A. L. Campbell and J. M. Lambing, and vacated the part of the order made at June Term 1873, affecting said forty acres.</p> <p>From these decrees appeals were taken to the Supreme Court, the following errors being assigned :—</p> <p>1. The lease of Lambing and Campbell was forfeited long before the date of the original decree, and they had no interest at that time or title to lands within the Stoughton lease.</p> <p>2. By the acts and conduct of the appellees, they were estopped from setting up this alleged lease, and having the decree made in the Orphans’ Court, No. 4, March Term 1874, approving it nunc pro tunc.</p> <p>8. The original decree in this case having been made June 11th 1878, and the parties having entered into possession under it, and having expended large sums of money in developing said lease, on the faith of said decree, and a great length of time having elapsed before the vacation or revocation of the decree was asked for, and the lessees, Stoughton and those under him, having obtained vested rights under the said decree of June 11th 1873, the court had no power to revoke it.</p> <p>4. The decree was unauthorized, and could only be made on the petition of the guardian, and not in an adverse proceeding against him.</p> <p>The Supreme Court referred the cases to a master, to take testimony and report the facts, together with his opinion thereon, who reported, inter alia, that the lease to A. L. Campbell and J. M. Lambing was fairly obtained, and had its conditions been carried out, would have been beneficial to the Brown heirs, but that the lease was forfeited by the failure of said lessees to comply with its conditions. He, therefore, reported the following decrees:—</p> <p>“ In Ho. 110, of October and November Term 1875, appeal of D. Rankin et al. Appeal to the Orphans’ Court of Butler county, at No. 4, of March Term 1874.</p> <p>“And now, to wit: This cause came on to be heard in this court at this term, on appeal from the decree of the Orphans’ Court, in and for the county of Butler, and was argued by counsel; whereupon it is considered, adjudged and decreed, that the decree of the said court be reversed and set aside, and that the record in this case be remitted to the said court, with directions to dismiss the petition of James M. Lambing, John A. Lambing, B. B. Campbell and R. L. Brown, at the costs of the petitioners, and that the appellees pay the costs of this appeal.” And</p> <p>“ In No. 130, of October Term 1875, appeal of W. Gr. Stoughton. Appeal to the Orphans’ Court of Butler county, at No. 36, of June Term 1873.</p> <p>“And now, to wit: This cause came on to be heard in this court at this term, on appeal from the Orphans’ Court, in and for the county of Butler, and was argued by counsel; whereupon it is considered, adjudged and decreed, that the decree of the said court, made February 25th 1875, vacating in part a former decree, made in said case June 11th 1873, and taking off the confirmation of the lease by David C. Rankin, guardian of the minor heirs of Josiah Brown, deceased, so far as the same might affect the forty acres of land theretofore leased by said guardian to A. L. Campbell and James M. Lambing, be reversed and said aside; and that the appellees pay the costs of this appeal.”</p> <p>Forty-six exceptions were filed to the report of the master, all of which the master overruled.</p> <p>John M. Thompson and Charles MeCandless, for appellants.— The original decree in this case having been made June 11th 1873, and the parties, William Gr. Stoughton and his lessees, having entered into possession under it, and having expended large sums ' of money in developing said lease, on the faith of said decree, and a great length of time having elapsed before the vacation or revocation of the decree was asked for, and the lessees, Stoughton and those under him, having obtained vested rights under the said decree of June 11th 1873, the court had no power to revoke it.</p> <p>The lease of Campbell and Lambing of December 4th 1871, should not have been approved nunc pro tunc, because the guardian did not join in the petition therefor, but was made a respondent thereto; and secondly, their lease had been forfeited by a failure to comply with its conditions. • But whatever the law may have been prior to the Act of April 18th 1853, Purd. Dig. 1242, since the passage of that act a guardian can make a lease of his ward’s land only with the sanction of the Orphans’ Court, and after the court is satisfied that it is to the interest of the minor that the lease should be made.</p>

237. Ejectment by Jonathan D. Springer, one of the executors of the last will of Rachel Skiles, deceased, against Jacob B. Miller, another of said executors, who agreed in writing that the said action might he prosecuted by Springer alone, as though he was sole executor, in order to try the title to the property in dispute, which consisted of a certain tract of twenty-nine acres of land in Union township, Fayette county.

<p>Appeal from the Orphans’ Court of Washington county: Of October and November Term 1878, No. 330.</p> <p>This case was as follows: Exceptions were filed in the court below to the account of Samuel Livingston, executor of Thomas Livingston, deceased, which exceptions were referred to an auditor for report.</p> <p>Exceptions were filed to the auditor’s report, and Hon. Geo. L. Ilart, president judge of the Court of Common Pleas of Washington county, called in the Hon. W. G. Hawkins, president judge of the separate Orphans’ Court of Allegheny county, to hear and determine the questions involved. His honor, Judge Hawkins, after a hearing, filed an opinion and made a decree “that the proceedings in said matter be vacated and set aside from which decree Samuel Livingston took this appeal.</p> <p>Washington county is a separate judicial district, but has no separate Orphans’ Court, the judge of the Court of Common.Pleas being judge of the Orphans’ Court by the Act of May 19th 1874, Pamph. L. 206, sect. 2, Purd. Dig. 1933, sect. 2.</p> <p>The Act of April 14th 1834, Purd. Dig. 230, 231, authorizes the holding of special Common Pleas courts in any county by calling in the president judge who may reside nearest for the trial of those cases wherein the president judge of the court in which the suit is brought is incapacitated for trying through interest in the cause; where title in dispute is claimed through him ; through kindred to the parties; or through having been concerned as coun-' sel. By the Act of April 4tli 1843, Purd. Dig. 1105, sect. 14, the provisions of the Act of 1834 were extended to the Orphans’ Court, Register’s Court, Quarter Sessions and Oyer and Terminer.</p> <p>The Act of March 4th 1875, Purd. Dig. 2050, Pamph. L. 5, sect. 1, provides that “whenever, by reason of sickness, absence, interest or other cause, a judge of the Orphans’ Court, in any judicial district in this Commonwealth, may be unable to sit in any matter depending in such court, it shall be lawful for him to call upon any other Orphans’ Court judge, or judge of-any other Court of Common Pleas in this Commonwealth, to preside in and determine such matter, with the same force and effect as though he, the regularly commissioned judge of such district, if presiding, might do.” • ; ■</p> <p>The question of jurisdiction was not raised in the court below, and no allusion was made to it in the paper-books furnished the Supreme Court. In the argument, however, a question as to the power of Judge Hawkins was suggested, as will appear in the following brief thereof. A like opinion was filed and judgment entered in Jane Neill’s Appeal, which came up from Washington county at the same term, and in which Judge Hawkins had presided and made the decree. The same counsel were engaged in both causes.</p>

<p>Whore it was manifestly the intention of the Court of Common Pleas in granting a charier to a building and loan association to incorporate it under the provisions of the act of April 12th 1859, it is not a valid objection thereto that the articles of association contain provisions not authorized by that act. If unauthorized provisions are added, all acts done in pursuance of such will be void, but until the corporation is proceeded against for an abuse of its franchises, its rights as a corporation will not be affected by such unauthorized powers, and in a scire facias to revive a jugdment entered on a judgment-bond given by a stockholder to such an association, the validity of the charter cannot be questioned, and a defence cannot be made on the ground of an alleged conllict of some of its provisions with the general law.</p>

<p>Error to the Court of Common Pleas of Crawford county: Of October and November Term 1878, Nos. 94 and 802.</p> <p>These were writs of error in one of which Lanman Chase was plaintiff in error, and Jacob G. Yandergrift and George V. Foreman were defendants j and in the other, The Acme Oil Company-plain tiff in error, and the defendant, Hugh O’Hare.</p> <p>The Supreme Court, as will be observed by the subjoined opinion, found no error in the record in these cases and affirmed the court below; but in the argument before this court, the question was raised, whether the stenographer’s note of a bill of exceptions to the admission or rejection of evidence was sufficient; or is it essential the bill should be actually sealed by the judge; and to the discussion and determination of this question the opinion of this court is directed ?</p> <p>The material portions of the Act of May 8th 1876, Pamph. L. 140, to authorize the appointment of stenographers in the several courts, will be found in the opinion of this court.</p>

257. Ejectment by John M. Hennon against Marquis A. McClane.

<p>Error to the Court of Common Pleas of Crawford county: Of October and November Term 1877, No. 12.</p> <p>Assumpsit by G. H. Chandler against the Commerce Eire Insurance Company of New York.</p> <p>On the 1st of October 1869, the plaintiff, George H. Chandler, . made a contract.with Joseph L. Chase and wife for the purchase of a lot of land in the city of Titusville, sixty feet on Elm street, by one hundred and eighty feet on Monroe street for $600 and the taxes, $120, to be paid 1st of May 1870, and $120 annually, on the 1st of October thereafter, with interest at the date of each payment. The last payment came due 1st October 1873. September 29th 1870, Chase and wife received on said contract $210, and conveyed, with plaintiff’s consent, to Amanda D. Birdsall forty by sixty feet, being the north end of the lot. April 15th 1871, Chase and wife received on said contract $200, and conveyed, with plaintiff’s consent, to John K. Peterson forty feet next adjoining lot conveyed to Birdsall, so that April 15th 1871, there remained unpaid only $190 of the purchase-money, and plaintiff had remaining the lot sixty by one hundred feet.</p> <p>On December 17th 1870, plaintiff assigned said contract to Gurdon S. Berry. This assignment was unqualified in terms as endorsed on contract, but at the same date Berry made and delivered an agreement or certificate to the effect that he held the assignment as security for a balance of account, stated as $75 due Berry, more or less; as further collateral security for any risks assumed by Berry in the postponement of claims due from plaintiff to others, in the event of Berry paying the same; and as further collateral and continuing security for any sums Berry might be thereafter called upon or induced to advance for plaintiff or his family. There was no evidence that after that date Berry ever assumed any risk or liability or advanced any money whatever for plaintiff, directly or indirectly. On April 19th 1872, plaintiff procured of the defendant the policy of insurance upon which this action is brought, by which defendant, for a premium of $10, insured the frame dwelling-house upon the remainder of the lot above mentioned for a period of one year, in the sum of $1000. Erom the time of insurance down to a few days before the fire the house was occupied by tenants. When they moved out plaintiff's son remained in occupancy with a lot of plaintiff’s goods. The fire occurred on the 30th of June, the house being totally destroyed. Due notice was given defendant’s agent, and August 19th, within the sixty days provided by the policy, proofs of loss were made out and sworn to before a notary and forwarded to the defendant. No objection or exception was made or taken by the defendant to the character or sufficiency of the proofs of loss. These proofs came to hands of defendant August 22d 1872, as is shown bv the office stamp thereon in these words: “ Commerce Fire Ins.' Co., August 22d 1872, N. Y.”</p> <p>On July 3d 1872, after the house was burned, plaintiff gave Berry a power of attorney to sell the remainder of the lot as above. September 27th, Berry, in his own behalf and as attorney in fact for plaintiff, made an assignment of all their interest in the old contract from Chase, and the lot to A. J. Fox for §1000, and authorized Chase to make conveyance to Fox. Said §1000 was to be paid by Fox by discharge of certain liens and claims against the property, amounting in the aggregate to §322.98, which included §89.59 for a mechanic’s lien held by Fox himself; he was to pay §261.89 balance purchase-money to Chase. Fox did pay to Berry at the time of assignment §413.89 ; §263.89 by surrender of Berry’s overdue note to him, and §150 in two checks. Before receiving the power of attorney above mentioned, Berry never had nor claimed to exercise any control over the property in question. October 18th 1872, Berry gave plaintiff his judgment-bond for §1000, conditioned to pay and clear from record all liens against the real estate in question, estimated at that date at §587; the remaining §413, after receipting Chandler’s indebtedness, to be paid in four equal payments, at intervals of sixty days, with interest. This bond was satisfied June 27th 1873. October 22d 1872, Chase and wife conveyed to Fox, as shown by receipt of latter’s attorney, endorsed upon the original contract. This action was begun April 15th 1873. It was tried January 22d 1875, and the jury rendered a verdict for plaintiff for §1140.41, subject to the opinion of the court on certain points presented by defendant and reserved.</p> <p>May 19th 1875, the case was heard on the reserved points, being Nos. 2, 4, 5, 7, 8, 9, and June 7th, the court decided the same in favor of the defendant, and rendered judgment in his favor non olstante veredicto, to which plaintiff excepted.</p> <p>These points, and the manner in which they were reserved by the court, Lowrie, P. J., will be seen by the following specifications of error by Chandler, who took this writ.</p> <p>1. The court erred in the answer to defendant’s second point, which was as follows :</p> <p>If plaintiffs premises became vacant or unoccupied by tenants, or a change of use of the same took place after the issuing of the policy in this case, and such vacancy, unoccupation or change remained for three or four weeks prior to and at the time of the loss, without the consent of the company endorsed on the policy, the policy was rendered void and plaintiff cannot recover in this suit.</p> <p>Ans. “Affirmed. Reserving, as with point No. 8, whether there is sufficient evidence of such vacancy or change of use. If not, judgment to be for defendant.” Reserved point decided in favor of defendant.</p> <p>2. In the answer to defendant’s fourth point, as follows :</p> <p>If, at the time of the issuing of the policy, the interest of the plaintiff in the property was other than the entire, unconditional and sole ownership thereof, and the same was not truthfully represented to the company, and so expressed in the written part of the policy, the policy is void and plaintiff cannot recover.</p> <p>Ans. “ Affirmed. Reserving the question of the sufficiency of the evidence to show such an interest. If not, then judgment' for the defendant.” Reserved point decided in favor of defendant.</p> <p>3. In the answer to defendant’s fifth point, as follows:</p> <p>The assignment of the Chase contract by plaintiff to Grurdon S. Berry, under date of 17th December 1870, including the land described therein, and the appurtenances, deprived the plaintiff of the entire, unconditional and sole ownership thereof, and unless the true facts were represented to the company and expressed in the •written part of the policy, at the time of the issuing thereof, the policy was void and plaintiff cannot recover in this suit.</p> <p>Ans. “Reserved with the foregoing point No. 4.” Reserved point .decided in favor of the defendant.</p> <p>4. In the answer to defendant’s seventh point, as follows:</p> <p>The proofs of loss furnished by plaintiff in this case to the defendant do not contain such a particular account of the loss, or such an account of the interest of the insured or the true owner in the premises, as is required by the terms of the policy, and unless the neglect of the insured to state the same’accurately, has been waived by the defendant, the plaintiff cannot recover in this suit.</p> <p>Ans. “Reserved. If not sufficient, then judgment to be for defendant.” Reserved point decided in favor of defendant.</p> <p>5. In the answer to defendant’s eighth point, as follows :</p> <p>Under all the evidence in this case, the premises were vacant and unoccupied at the time of the fire, under the definitions of these words as given in the policy, and at the time of the fire the insurance was suspended, and the plaintiff cannot recover.</p> <p>Ans. “Reserved. Is there sufficient evidence of such vacancy? If so, then judgment to be for defendant.” Reserved point decided in favor of defendant.</p> <p>6. In the answer to defendant’s ninth point, as follows:</p> <p>The proofs of loss furnished to defendant are not sufficient to enable plaintiff to recover.</p> <p>Ans. “Reserved. If not, then judgment to be for defendant.” Reserved point decided in favor of defendant.</p> <p>7. The court erred in rendering judgment for defendant nonobstante veredicto.</p> <p>8. The court erred in not rendering judgment in favor of the plaintiff upon the verdict for the sum of $1140.</p>

<p>1. Althougn a condition be attached to a policy in a mutual insurance company, declaring it void on a failure to pay an assessment on a premium-note within a specified time, yet the policy does not thereby become ipso facto voicL The company may waive the right of avoidance and then the contract relation is not wholly dissolved; but the protection of the policy is suspended until the default of non-payment is removed. No recovery can, therefore, be had for a loss sustained during the continuance of such default.</p> <p>. 2. By levying a second assessment, during a default in the payment of a former one, such a company does not waive its right to demand the latter, nor does it thereby remove the disabling consequences flowing from the neglect to pay said assessment.</p> <p>3. Whether a company, by the language and acts of its secretary, has waived formal proofs of a loss, is a question for the jury.</p> <p>4. Where the powers of the agent of such a company are limited, with no authority to collect assessments, the fact that the policy was procured by him created no legal presumption that he was authorized to receive assessments subsequently made. And even if said agent was authorized to receive assessments in money, a payment in work, done for the personal benefit of said agent, would not be payment to the company.</p>

<p>II. and P. were partners in an oil-well, for which G. furnished supplies. G. brought suit against the executor of II. to recover a balance duo P. was called as a witness, on the part of plaintiff, to prove the partnership and the account. -Hdd, that he was incompetent, and it was error to admit his testimony.</p>

<p>Error to the Court of Common Pleas of Crawford county: Of October and November Term 1878, No. 186.</p> <p>Ejectment by George W. Hecker against John W. Haak, Clemens Haak, William Haak and Charles Haak, for a lot in the city of Meadville.</p> <p>Jonas Knauss was the admitted common source of title in this case. In 1851 he died intestate, leaving a son and a daughter. The daughter’s name was Sarah Ann. She was at the time of her father’s death intermarried with Dr. John W. Haak, one of the defendants. Dr. Haak, her husband, was appointed administrator of her father’s estate. In April 1853 Haak, as administrator of the estate, presented his petition to the Orphans’ Court of Ci’awford county, asking leave to sell the premises now in dispute for the payment of the debts of Jonas Knauss. The sale was ordered, made and duly confirmed, and the premises were, in pursuance of said sale, duly conveyed to Isaac Kohn and Abram Adler, trading as Kohn & Adler. Kohn & Adler, by deed dated June 11th 1855, conveyed the same premises to E. W. Kirby, in trust, for the sole and separate use of Sarah Ann Haak, the wife of Dr. J. William Haak, and her heirs and assigns, and so long as she alone, or such persons as she shall appoint, shall take and receive the rents, issues and profits thereof, and so as her said husband should not in anywise intermeddle therewith.</p> <p>Shortly after the last-mentioned deed was made Mrs. Haak and her husband separated, Mrs. Haak going to New York, where she afterwards remained. In 1858, some years after Mrs. Haak had left, Kohn & Adler brought suit against Mr. and Mrs. Haak, before a justice of the peace. The transcript of the justice states the plaintiffs’ claim to be for goods sold and delivered, clothing, groceries, provisions, necessaries, but does not state who contracted the debt. The summons is returned “ served upon Wm. Haak personally, and by a copy left with him for Sarah Haak, his wife.” The transcript further states that “ Haak appears, examines the account, says it is right. Sarah does not appear, and thereupon judgment entered for plaintiff for ¡¡¡>90.68.” A transcript of this judgment was filed in the Common Pleas of Crawford county, and judgment entered against Haak and Sarah Ann, his wife. Execution was duly issued on this judgment, and the premises in dispute sold at sheriff’s sale as the property of Mr. and Mrs. Haak, and. on the 8th day of April 1859, was conveyed by the sheriff of Crawford county to Abram Adler. December 8th 1863, Abram Adler conveyed the same premises to Dr. J. W. Haak, in trust for Clemens Haak, William Haak and Charles Haak. Afterwards, John W. Haak brought suit in divorce against his wife, and obtained a decree August 15th 1863. In 1866, Hecker and Trantum brought suit against Sarah Ann Knauss, formerly Haak, and obtained judgment against her. By virtue of this judgment execution was issued, the premises in dispute levied upon and the property sold to the plaintiff as the property of Sarah Ann Knauss, formerly Haak. The plaintiff claimed that the first sale of the property on the judgment against Haak and wife did not divest the title of the wife, the judgment being a nullity as to her, and that he obtained a good title by the second sale.</p> <p>At the trial the defendants offered in evidence the record of the Court of Common Pleas at November Term 1858, wherein Kohn & Adler were plaintiff's and John W. Haak and his wife wore defendants, to which the plaintiff’s counsel objected that the record shows no judgment against Sarah Ann Haak, the wife. Also, that the record shows no liability on her part, and that any judgment entered against her or her estate before the justice or in the Common Pleas, by virtue of the justice’s transcript wrns void and a nullity as to her. The court overruled the objections and admitted the evidence. Exception.</p> <p>The following points were presented by plaintiff, all of which the court refused:</p> <p>1. That the judgment given in evidence of Kohn & Adler v. John W. Haak and Sarah A. Haak, his wife, was void as to Sarah A. Haak, ’the wife, and that the sale of the wife’s property under and by virtue of it was a nullity and conferred no title on the purchaser.</p> <p>2. That as the title to the property now in dispute, at the time of the sheriff’s sale of the same to Abram Adler, under and by virtue of said judgment, was vested in E. W. Kirby, in trust nevertheless, and for the uses following, and no other, thatjs to say, for the sole and separate use of Sarah Ann Haak, the wife of Dr. J. William Haak and her heirs and assigns, and so as she alone, or such person as she shall appoint, shall take and receive the rents, issues and profits thereof, and so as her said husband shall not in any wise intermeddle therewith, with power to the said second party (F. W. Kirby), his heirs and assigns, to sell or convey the said lot or piece of land, with the appurtenances, in fee simple to any person or persons, and for such sum or sums of money as the said Sarah Ann Haak in her life,' by writing, under her hand and seal duly acknowledged may appoint and direct; and on failure of such appointment and direction, to hold in trust, as aforesaid, for her heirs, according to law. And as the said Sarah A. Haak at the time of-making said deed was the wife of Dr. John W. Haak, and continued his wife until after the said sale and conveyance of said land to Abram Adler, he (Abram Adler) acquired no title to the same by said sale.</p> <p>3. That under all the evidence in the case the verdict should be ■ for the plaintiff.</p> <p>In their general charge the court said:</p> <p>“It is unnecessary to take up your time further with this case. It is all record evidence. It becomes the duty of the court to decide the law of the case. We have answered the plaintiff’s points in the negative, hence your verdict will be for the defendants.”</p> <p>Yerdict for defendants accordingly, and plaintiff took this writ assiging for error the admission of the above evidence, the answer to points and the portion of the charge noted.</p>

<p>Error to the Court of Common Pleas of Orawford county: Of October and November Term 1878, No. 303.</p> <p>Case by William Douthet against the Erie and Pittsburgh Bail-road to recover damages for tho breach of an agreement to furnish plaintiff for life with a pass for himself and family over defendants’ railroad. Douthet, by deed, wherein the recited consideration was one dollar, gave to tho defendant company a right of way over his land. The company further agreed, through its president, by parol, as a further consideration therefor, to furnish plaintiff with a pass for himself and family during his life. This agreement was carried out until 1874, when, upon the refusal of tho company to furnish him with the pass as usual Douthet brought this action.</p> <p>At the trial before Church, P. J., the second point submitted by plaintiff was as follows, to which is appended the answer of the court:—</p> <p>That the measure of damages in this case is the value of a pass for the plaintiff and his family, over the line of the defendant’s road, from the time of the refusal by the defendant during the probable remainder of the plaintiff’s life.</p> <p>Ans. “ That we answer in the affirmative. As we have said, the difficulty is in arriving at a proper value, a system or theory upon which to arrive at tho present money value of that pass. That is the difficulty in this case.”</p> <p>The fourth point of defendant and the answer thereto, were as follows:—</p> <p>The measure of damages, if any, would be the actual amount expended by plaintiff for fares, and he would not be entitled to claim damages because of non-travel.</p> <p>Ans. “ The first part of that we answer in the negative. Tho latter part we would affirm as an abstract proposition that he would not be entitled to claim damages because of non-travel, but he is entitled to the pecuniary value of the annual pass. The p.ass may have been used for business or pleasure. You will take into consideration the number and character of his family; whether necessity or desire for pleasure would lead him or his family to go often or less frequently, or for what distance they would, for business or pleasure, be apt to travel.”</p> <p>In the general charge, the court, inter alia, said :—</p> <p>“You are to take into consideration the surrounding circumstances of Mr. Douthet and his family; whether it would be possible that they would have occasion, for business or pleasure, to use the pass to Jamestown, New Castle and Greenville.” Also, “ In determining the pecuniary value of this annual pass, it is your duty to take into consideration the station in life of Mr. Douthet, and his age, because this was an annual pass during his life,”</p> <p>Yerdict for plaintiff for $500, when defendant took this writ, among his assignments of error being'the answers to the above points, and the portion of the charge noted.</p>

<p>1. Declarations of a deceased surveyor are strong evidence on a question of boundary, and ought to prevail, unless clearly rebutted by showing either a mistake of the witness in relating the facts or error in the surveyor in making the declaration ; and it was error to charge the jury, that such declarations are weak evidence, and by the court hardly believed to be evidence.</p> <p>2. Quantity is a circumstance of slight, often of no weight, in a question of title, but it may have a marked effect where the question is one of boundary. If there be two lines, one corresponding with the quantity of land in the deed, and the other largely in excess, the inference would have weight in • determining the true line, especially when strongly asssisted by other evidence. It was therefore error where the question was one of boundary to exclude .evidence of the number of acres contained in defendant’s claim.</p> <p>3. Where the defendant chose to rely on his possession and on a question of boundary, alleging that the plaintiff’s survey did not cover the land in dispute, and gave evidence to establish a different northwest corner and a different line, and to dispute the southwest white oak corner, it was directly rebutting to show that the defendant held under a title, which recognised the corners ¡md line claimed to by the plaintiffs, there being admissions by deed and matter oí' record; and it was error to charge such evidence was not rebutting evidence.</p>

<p>Error to the Court of Common. Pleas of Crawford county : Of October and November Term 1878, No. 332.</p> <p>■ This was an application by the Commonwealth ex relatione Samuel S. Eertig, and others, for a writ of mandamus, to compel the commissioners of Crawford county to provide suitable buildings for the holding of courts in the city of Titusville, in accordance with the Act of April 18th 1878, Pamph. L. 29. The material portions of the act and the proceedings in the court below will be found sufficiently stated in the opinion of this court. The case was heard and determined by Church, P. J., the parties having waived a trial by jury.</p>

<p>Error to the Court of Common Pleas of Mercer county: Of October and November Term'1878, No. 161.</p> <p>This was an appeal by the Pennsylvania Company, operating the Erie and Pittsburgh Railroad, from a judgment of a justice of the peace, in favor of John Bolton.</p> <p>John Bolton, the plaintiff below, was in the employ of the Pennsylvania Company in September 1876, as brakeman. There was due him, for services or wages as brakeman, the sum of $4fi for the month of September. Prior to pay-day the wages due Bolton were attached at the suit of I). Patton v. John Bolton, in Ashtabula county, Ohi.o, and the Pennsylvania Company, also a corporation in the state of Ohio, were summoned as garnishees in the said attachment. Judgment was duly obtained, under the laws of Ohio, against Bolton, defendant, and the Pennsylvania Company garnishees, and the amount due Bolton paid by the company in pursuance of said judgment. After the judgment obtained in Ohio, Bolton brought suit before a justice of the peace, in Mercer county, to recover the amount due for wages for the month of September 1876, which had been attached and paid as before stated, and obtained a judgment for the full amount due him for said month. The company took an appeal from said judgment to the Common Pleas of Mercer county. The plaintiff filed his copy of claim, and entered a rule on defendant to file an affidavit of defence, to which rule the defendant answered by affidavit, wherein it was averred “that judgment was entered against the garnishees, a corporation under the laws of Ohio, duly incorporated therein, as well as of Pennsylvania, on the 1st day of December 1876. That after due notice by publication, and agreeably to the laws of Ohio, the amount of money in the hands of the Pennsylvania Company, due and owing to the said Bolton, was paid into court on the 8d day of January 1877, as this deponent is informed and believes. That a copy of the transcript of proceedings before the justice of the peace, in Ashtabula, is hereunto attached as part of the affidavit of defence. ”</p> <p>The court, in an opinion, said :</p> <p>“ The plaintiff brought suit for wages before a justice of the peace in Pennsylvania. That his services were rendered in this state is not denied. That the wages of a laborer cannot be attached, even by a creditor of the laborer in this state cannot be controverted; if so, much less by a creditor in a sister state. Judgment granted for want of a sufficient affidavit of defence.”</p> <p>This entry of judgment was assigned for error by defendants, who took this writ.</p>

<p>1. Where goods are left with a common carrier to be delivered to the consignee without any qualification or restriction, the consignor parts with the goods and all control over them, and cannot, by a subsequent direction to the carrier, prevent their delivery to the consignee, unless such facts are shown as .will justify the stoppage of the goods in transitu.</p> <p>2. Where, having given such subsequent direction, the carrier, notwithstanding, delivered the goods to the consignee, and in consequence thereof the consignor sues and obtains a judgment against the carrier in another state for a misdelivery of the goods, this will not avail in a suit by the carrier against the consignee.</p>

<p>Error to the Court of Common Pleas, No. 4, of Philadelphia comity: Of July Term 1876, No. 1.21.</p> <p>Case by August Hass against the Philadelphia and Southern Mail Steamship Company to recover damages for injuries which plaintiff alleged were sustained by him through the negligence of the servants of defendant.</p> <p>At the trial, before Thayer, P. J., it appeared that the plaintiff was a seaman on the steamship Tonawanda, owned by defendants. On September 8th 1874, the night of the accident, the vessel was lying at the levee in the river at New Orleans, partly unloaded, and partly loaded with the return cargo, her deck being about five feet lower than the level of the levee. Running from the deck to tho levee were two gangways, one forward and the other aft, used for loading and unloading. These gangways were composed of six or seven heavy planks, about a foot wide by thirty feet long, resting on the levee, their ends projecting out and over the deck of the vessel to her hatches, some four or five feet, and resting upon a bench or support erected on the deck of tho vessel for that purpose. Blocks were used to steady tho planks and to overcome the rise and fall' of the vessel caused by the rise and fall of the river. In order to keep the planks on a level with the levee, some of the blocks were taken out as the vessel rose, and additional ones were put in as she fell. When the vessel fell, there would be a space between the blocks and the ends of the planks, rendering them unsteady and liable to sink down if a weight came upon them. The vessel was being unloaded and loaded by a general stevedore, one Manning, whom the company employed under a special contract to pay him so much per day on the outward cargo, and by the package or barrel on the inward. The stevedore employed his own men, and he and they arranged the planks, gangways and blocks. None of the crew had anything to do with the arrangement of the planks, or with adjusting them to the rise and fall of the river. The chief officer saw that the cargo was properly stored and the ship properly trimmed, but he had no other duty connected with the loading and discharging of the cargo. Neither the stevedore nor his men were in any way connected with the vessel or her employment. The stevedore employed and paid his own men, and he was paid by the agent of the company at New Orleans. The loading and unloading was entirely in his charge.</p> <p>On the vessel’s arrival at New Orleans, plaintiff was asked by the master to act as night watchman on board, in consideration of having all day off to himself — to which he consented. It appeared that this was the customary way of watching steamers while in port, and the position of watchman was considered a desirable one by the seamen, on account of being thereby relieved from duty in the daytime, as otherwise they would be obliged to take their turn in watching at night, in addition to their regular duties during the day. As night-watchman, it was his duty to take general charge of the ship, keep her fasts from chafing, admit no one on board except the ship’s company, and see that nothing was stolen. On the night of the accident, the plaintiff, while thus acting as nightwatchman, heard a noise, and starting forward to learn the cause, stepped upon the second plank of the gangway, near the pilot-house, which, giving way by reason of the vessel having sunk during the night, the plaintiff tripped and fell over the planks into the water, breaking his leg and bruising himself in the fall. It was in evidence that when the stevedore and his-gang would leave the vessel after the performance of their day’s work, these cargo planks were in the charge of the officer of the deck at night; that plaintiff knew of the condition of the planks, and that it was his duty to have blocked them himself, or to have notified the officer of the deck.</p> <p>The following points were submitted by plaintiff, to which are subjoined the answers of the court:</p> <p>1. That it was the duty of defendants, as the employers of plaintiff, to exercise reasonable care and diligence in supplying him with safe machinery, and keeping the ways, passages and approaches, in and about his work and labor, in a safe and secure condition.</p> <p>Ans. “ I decline to affirm this point. It was not the duty of the employers to keep and maintain these planks in safe condition as regards the plaintiff. It is, of course, their duty to employ proper fixtures and machinery, and they are liable, if they have been guilty of any neglect or want of care in this respect.”</p> <p>2. That when an employer places the entire charge of his business, or a distinct branch of it, in the hands of a middleman, agent, or representative exercising no discretion and no oversight of his own, then the neglect by such agent or reprepresentative of ordinary care in supplying and maintaining suitable instrumentalities for the work required, is a breach of duty for which the master becomes responsible, and should be held answerable.</p> <p>Ans. “ If this point is intended to mean that when a person employs another in an independent employment, he is responsible, under all circumstances, to one of his employees for an injury caused by that person’s negligence, I decline to so charge. He is responsible if he employs an agent, but not if he employs a person in an independent employment. That is the general rule.”</p> <p>8. That if the jury find that the defendants had left the entire charge of the business and management of the vessel, and of the keeping of the ways, passages, approaches and appliances thereto in a safe and secure condition in the hands of the master of the vessel, Captain 'Wiltbank, as their agent and representative, exercising no discretion and no oversight of their own, that in that case, neglect by the master, of ordinary care in supplying and maintaining suitable machinery and instrumentalities for the work required of plaintiff, and in keeping the ways, passages, approaches and appliances in and about the same, in a safe and secure condition, is a breach of duty for which the defendants would be responsible to plaintiff if he received injury through such neglect.</p> <p>Ans. “ I do not understand what is meant in this point by suitable machinery, or how it is applicable to this case. The question is as to the displacement of a gangway. If it means that the owners are responsible to the plaintiff for an injury happening through the negligence of the captain and crew, I negative it.”</p> <p>4. That if the jury find that the defendants had placed the entire charge of the business of loading or unloading the vessel in the hands of Mr. Manning, the chief stevedore, as their agent or representative, exercising no discretion or oversight of their own, that in that case neglect by such agent or representative of ordinary care in supplying and maintaining suitable instrumentalities for the work required, and in keeping the ways, passages, approaches and appliances in and about the same in a safe and secure condition, is a breach of duty for which the defendants would be responsible in case plaintiff were injured thereby.</p> <p>Ans. “ When I employ a man to do a particular thing under my control, I am responsible for an injury caused by his negligence; but if I employ one whose trade it is to do that particular thing, and submit the whole to him, I am not responsible. That is the general rule. If it was the duty of the master and sailors to keep the decks clear of such obstruction, the owners would not bo responsible to the plaintiff for the neglect of .that duty, although they would be to a stranger.”</p> <p>6. That if they found that notwithstanding the position of Manning, the chief stevedore, he was merely a fellow-workman of plaintiff, and that the injury was caused by his negligence, that then it will be for them to say whether his negligence was one of the risks which the plaintiff should be held to have assumed when he consented to act as watchman of the vessel by night.</p> <p>■ Ans. “Manning was not a fellow-workman. He was not engaged in the same line of business. If the company is exempt from the consequences of his neglect, it is on the ground that Manning was in an independent employment.”</p> <p>7. That if they found that plaintiff’s injury was caused by the negligence of the chief stevedore, and that as watchman of the vessel he was not a fellow-servant of the chief stevedore, but was working for the defendants in an entirely different employment, that then the plaintiff is entitled to recover.</p> <p>Ans. “ I decline to affirm this point in the form in which it is put, because you must also inquire, if you find that the negligence was originally that of the stevedore, whether leaving the planks in that condition was negligence on the part of the master and sailors, and if it was, plaintiff cannot'recover.”</p> <p>In the general charge the court said:—</p> <p>“ There are certain fundamental principles of law which it is necessary to consider in all cases of this character. This is an action against the steamship company for alleged negligence on the part of their agents. Undoubtedly the general rule is, that a principal is responsible for an injury happening by the negligence of his agents. But this rule is subject to certain qualifications and limitations. In the first place, the plaintiff, in an action of this kind, must prove negligence on the part of the employer or his agents, and he must also prove that, the accident was occasioned by it. Again, it is a rule of law, that in a case of this kind, if the plaintiff has himself been negligent, then he cannot recover, although there may have been negligence on the part of the master also. Where the person injured is partially to blame himself, he cannot recover damages, although his employer also has been negligent. If there was contributory negligence, if his own acts assisted in producing the accident, he cannot recover.</p> <p>“A man, when he enters upon any employment, assumes all the risks which ordinarily and naturally belong to that business. . For example, if an employer has taken proper care in the selection of his engineer, and the engine or boiler explodes, and the engineer is hurt, he cannot recover. It is a risk which he took. So it is with a sailor. He takes the risk which is ordinarily incident to his occupation.</p> <p>“ From the evidence, it seems to me that the plaintiff was acting as a sailor. He was a watchman, it is true, but he was watching as a sailor. It is his duty to go on watch when directed by the master, whether in port or on sea. The master is a sort of tyrant on board of his vessel. He has the right to give such orders as he pleases. If commanded so to do by the master, the plaintiff would have been obliged to watch the ship just as much in the port of New Orleans as at sea. It seems by the testimony that the sailors regard the duty of watchman while in port as rather desirable. They enjoy certain privileges and exemptions from duty in consequence of it.</p> <p>“ Put a man does not assume risks which are not such as naturally belong to his employment, and are occasioned by the negligence of his employer. He does assume all risks arising from the negligence of persons employed in the same common employment with himself. It is one of the risks which he undertakes when he enters upon the employment. If this accident was caused by the negligence of any person engaged in a common employment with himself, such as the captain and sailors, plaintiff cannot recover.</p> <p>“Again, where a man employs another, who is engaged in a separate or independent employment, he is not responsible for the negligence of that person, whereby another person is damaged. A bricklayer, building your chimney, lets a brick fall upon another person’s head — you had no control over him — it would bo unjust to hold you responsible. If I am in my carriage, and my driver negligently drives over another, whereby he is injured, I am responsible, for he is my servant. If I am in an omnibus, I am not responsible for the negligent driving of the driver. This is the case where the employer exercises no control over the employed.</p> <p>“ The plaintiff must prove that the accident occurred through the negligence of the company or its agents. If it arose from the negligence of a person employed by the company in an independent employment, then the defendants are not liable.</p> <p>“ If this accident resulted from the negligence of any of the sailors, or persons employed in a common employment with the plaintiff’, then he cannot recover.</p> <p>“ Of course, if it was the paintiff’s duty to have looked out after these gang-planks himself (and Captain Young says it was; you will judge from the evidence), then undoubtedly he cannot recover, for that wTould he to permit a man to recover for the consequences of his own negligence. Even if the stevedore was negligent, if the negligence of the plaintiff was the immediate cause, your verdict must bo for the defendants. * * * * * *</p> <p>“ The defendants say that the arrangement of the planks was a thing which was committed by them to the stevedore, who wras in an independent employment; that he was employed to do that very thing, and that defendants had no control over him. He did it in his own way, and with his own men. The plaintiff on the other hand, says that he was an agent of the company. If he was merely an agent, that is, if he wras a simple agent, the defendants are responsible; but if he was a person engaged in an independent employment, then the defendants would not be responsible for his negligence in the course of that employment.</p> <p>“ The defendants would, in my judgment, have been responsible to a stranger if the planks were improperly left by the stevedore in a dangerous condition, and an accident had happened to him from that cause, because if so left the defendants would be responsible to a stranger for the negligence of the master or crew in not removing them. But I cannot say that as regards a^sailor employed on board.</p> <p>“ If it ’ was the duty of the master, or of the ship’s crew, to remove these boards, then the defendants are not responsible in this suit. The owner’s responsibility is limited to the duty of employing competent persons. If he does that, he is not liable. The defendants are not responsible for the negligence of the captain or crew, if it caused this injury, and if the accident happened through the failure of the captain or crew to attend to their duty, defendants are not liable. If a sailor, or even the captain’ leaves anything wrong on deck, and an accident happens, the employer is not liable to one of the sailors for that. That is the negligence of a person in the same employment. It -would otherwise amount to this, that owners of a vessel guarantee to sailors, safety from the negligence of the officers or sailors.</p> <p>“ 1st. You are to find whether the defendants were negligent.</p> <p>“2d. Was there any negligence on the part of plaintiff? He' says he had walked over the planks once that night and they tilted with him. Was he warned, and was it 'negligence in him to walk over them again ? I say again, that if the negligence was originally the stevedore’s, and the stevedore was in an independent employment, then the defendants are not responsible if the accident happened in consequence of a neglect on the part of the captain or crew to remove the planks. If it was the duty of the plaintiff to have removed this obstruction himself, then of course he cannot recover. Nor can he, if it was the business_ of the captain or crew to do so. If, on the other hand, the accident is exclusively attributable to the negligence of the defendants, then the plaintiff ought to recover.”</p> <p>Verdict and judgment for defendants. A rule for a new trial being subsequently discharged, the plaintiff took this writ, and assigned for error the answers to the above points and the charge of the court.</p>

<p>1 The testator directed that the income to be paid to his children should !>« paid, “ in such way and manner that the same shall be free from the control, contracts, debts, liabilities or engagements of any of my said children,” and appointed his son one of his executors. Upon the filing of their account, the executors were surcharged in 'such an amount that the interest thereon would exceed the son’s share of the income. Held, that the son was entitled to receive his full share of the income from the remainder of the estate.</p> <p>2. Under such a trust no distinction exists between a liability to the estate and a liability to a stranger.</p>

<p>1. While the Act of March 24th 1877 makes it the duty of a judge to reduce to writing the answers to the several points presented, and read them to the jury before they retire to consider their verdict, an omission to do so is not an error for which the judgment will be reversed.</p> <p>2. It is sufficient, in the review of the judgment in the Supreme Court, if the points are substantially answered in the charge.</p>

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1878, No. 105.</p> <p>Assumpsit by William Logan against J. H. Cassell on two promissory notes made by the defendant to the order of R. Conner, and endorsed by the latter.</p> <p>The action was brought before an alderman, who gave judgment for the plaintiffs, when defendant appealed to the Court of Common Pleas.</p> <p>. At the trial, before Einletter, J., William Logan, the plaintiff, produced and gave in evidence two promissory notes, each for $39.33, of which the defendant was the maker, dated June 16th 1873, payable ninety days and six months, after date, respectively, to the order of R. Conner, and by the said payee endorsed in blank.</p> <p>The defendant called the payee, who testified that at the time the notes were transferred, he was employed by the plaintiff to sell goods, and was to receive a portion of the profits for his services. That he desired to obtain a loan of $50 from the plaintiff, and that upon the loan being made, he transferred the said notes to the plaintiff as collateral security for the said loan. That the loan had been repaid by his commission or share of the profits and a cash payment af $10. He further said, that he also, after the notes were due, in ' company with the maker, tendered the plaintiff a roll of notes, and told him he would pay him what he owed him, and demanded the return of the said promissory, notes, which the plaintiff refused to surrender. No exact sum was offered. That he afterwards settled with the defendant and gave him a receipt in full.</p> <p>The defendant was also called, and testified that the payee tendered the roll of notes and demanded the promissory notes, both of which were refused, and that he, the defendant, afterwards made a settlement with the payee and took his receipt in full for the said promissory notes.</p> <p>The plaintiff, in rebuttal, testified that the promissory notes were not given as collateral security, but that they were purchased by him. That the payee had not paid the §50 by commissions, nor in any other way. He also said that the roll of notes, as testified to by the payee and maker, was never produced before him.</p> <p>The court charged as follows :</p> <p>“ The question in this case is whether the notes were purchased for §50, or whether they were given and hold as collateral security for that sum. [If these notes -were purchased, then the plaintiff has a right to recover their full amount.]</p> <p>“ If they were held as collateral, then he is entitled to recover only the amount that he may show to be due upon the original debt.”</p> <p>The verdict and judgment wore for defendant, and plaintiff assigned for error the portions of the above charge not enclosed in brackets, and that the court should have directed the jury to find for the plaintiff.</p>

<p>Error to the Court of Oyer and Terminer, of Philadelphia county: Of January Term 1879, No. 69.</p> <p>Indictment of Alexander B. Sayres, for the murcter of his wife. Defendant pleaded not guilty.</p> <p>At the trial it appeared that Sayres and the deceased were married in November 1866. At the time of the marriage the prisoner had two sons by a former marriage. Sayres and his wife and the two sons lived together until 1875. Previous to that year, there had been some difficulty between the prisoner and his wife about money matters, and especially with reference to a house and lot which they had purchased with their joint funds. In 1875, a violent quarrel occurred between them, and the prisoner threw his wife down stairs and broke her arm. Eor this offence he was arrested upon the complaint of Mrs. Sayres, and was convicted and sentenced to imprisonment.</p> <p>After a short imprisonment, the prisoner was liberated at the instance of Mrs. Sayres, but she always thereafter refused to live with him or permit him to enter the house where she continued to reside with the prisoner’s two sons. The prisoner frequently expressed a desire to go back to the house where his wife and sons were living, saying: “if he could get in there for the winter, he thought he would be all right.” He was out of employment, was in failing health, and was in debt for his board. Under these circumstances, he tried, through the intercession of friends, to induce his wife to permit him to return to his house, and only a few days before the shooting, he went to see his wife, accompanied by a friend, Mrs. Haddon, but his wife refused to admit him, and as he went away, remarked to him that she would never have anything to do with him this side of the grave. He still insisted that he would get in, and said to Mrs. Haddon that “ his wife would know better than not to treat him badly if he got back again, for if she would, he would break her neck.”</p> <p>On Sunday, November 18th 1877, the prisoner, having a pistol, which he had purchased the July previous, during the period of the riots, on the pretext that he was a private watchman at a mill, entered the church of which his wife was a member, and at which he had been an attendant. He entered the pew immediately behind that in which his wife and two sons were sitting, and remained-there until the conclusion of the services, in which he took part. As the congregation were about leaving the church, and while Mrs. Sayres, who had stepped from her pew, was speaking to a friend, he drew the pistol, fired it, and shot his wife in the back. He then dropped the pistol, and started rapidly from the church, but was arrested by some of the church members at the foot of the stairs. He made no resistance, and in reply to remarks while on the way to the station-house, complained of a pain in his head. Mrs. Sayres was taken to a hospital, and died on the 29th of November from the injury inflicted by the ball upon her spine.</p> <p>The Commonwealth offered to prove by James M. Sayres, a witness sworn on the part of the Commonwealth, that on the 15th (lay of September 187 5, the prisoner quarrelled with the deceased and threw her down stairs, breaking her arm ; that he was arrested, prosecuted by her, and sentenced to imprisonment, and that she thereafter refused to live with him — to be followed by proof of previous quarrels, and difficulties, and disputes about the property, and that their relations had been of an unfriendly character — in order to show motive and malice. The court overruled the objection to this evidence, and admitted it.</p> <p>- The Commonwealth also offered in evidence three deposite books of the Philadelphia Savings Fund, stated by the bookkeeper to be the books of Alexander B. Sayres and Elizabeth Sayres, for the purpose of showing that the wife had saved money and he had not, and to show his motive for wishing to live with her. Admitted under objection.</p> <p>The fact of the shooting and the circumstances connected therewith were not seriously disputed.</p> <p>The defence was insanity, and upon this point there was much conflicting testimony, covering the whole period of the prisoner’s life. In this connection the defence offered to prove by two nurses at the hospital to which the deceased was removed, that the latter had said, “ My husband shot me, but I don’t want him punished,” as showing that deceased knew he was insane and not accountable for his actions. The court sustained the Commonwealth’s objection to this evidence.</p> <p>In rebuttal, the Commonwealth offered in evidence five letters of the prisoner, written by him about 1866, to show by the evidence contained therein that the prisoner was of sound mind. The counsel for defendant objected to this evidence, on the ground that it was not in rebuttal, but the court overruled the objection.</p> <p>The regular panel of jurors having been exhausted, a special venire was issued, and upon its return, among the names called was Joseph Dugan, 1001 Lemon street, who testified on voir dire that he resided at 1008 Lemon street; that there is no 1001 in that block; that he spelled his name Dougan; that it was pronounced as if spelled. Dugan ; that his son lived with him, whoso name was Joseph Dougan ; that his son sometimes called himself Joseph Dougan, Jr.; that he signed his name in that way ; that witness sometimes writes his name Joseph Dougan, Sr. Challenged for cause by the prisoner, and challenge overruled. It appeared the prisoner had’ not exhausted the peremptory challenges allowed him.</p> <p>The court (Ludlow, P. J.) charged the jury at considerable length, which charge is here given almost in extenso, because of its learned and able discussion of the law of homicide, as well as .the law upon the subject of insanity in this state:—</p> <p>“ If the jury, from all the evidence, believe that this prisoner then inflicted the wound, the next and most important question arises, were the circumstances such as to oblige the jury to convict him of any crime ? and if so, of what degree ? or ought he, for any reason, to be acquitted ?</p> <p>“ At this point I will introduce to your notice the law of homicide. At present we shall confine your attention to the law of felonious homicide. At common law but two grades of felonious homicide existed, murder and manslaughter. Murder at common law is committed when a person of sound mind, memory and discretion, kills a reasonable creature in being, in the peace of the Commonwealth, with malice aforethought, express or implied. Manslaughter may be defined to be the unlawful and felonious killing of another without malice, express or implied. Voluntary manslaughter is the unlawful killing of another, without malice, on a sudden quarrel, or in the heat of passion. You will observe at once the vital distinction between murder and manslaughter. In murder there is the presence of malice, and the intent to kill or to do great bodily harm. In manslaughter there is the absence of malice and intent to injure, and the presence of passion. In murder there is especially malice. In manslaughter there is and can be no malice. Our legislature, in 1794, created a crime not strictly speaking known at common law, for they have divided the crime of murder into two degrees — murder in the first and murder in the second degree: ‘ All murder perpetrated by means of poison, lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree.’</p> <p>“You will observe that under our statute, to constitute murder of the first degree, the act must be a voluntary one, that is, wilful. It must be thought of beforehand, that is, premeditated; and the judgment must also concur, therefore there must be deliberation. The great'distinguishing feature of murder in the first degree is the intent to kill coupled with malice. If the act of the defendant is not wilful, deliberate and premeditated, and also malicious, together with the intent to kill, the offence is not murder of the first degree.</p> <p>“ The presumption against the prisoner rises no higher than murder in the second degree until it is shown by the Commonwealth to be murder of the first degree. It therefore lies on the Commonwealth to satisfy the jury of those facts and circumstances which indicate a deliberate intention to kill, and that cool depravity of heart and conscious purpose, which constitute the crime of murder of the first degree.</p> <p>“ The law fixes no particular time in which the wilful, deliberate and premeditated intent to take life may be formed. The jury must find the actual intent, with so much time for deliberation and premeditation as to convince them that this purpose is not the immediate offspring of rashness and impetuous temper, and that the mind may become fully conscious of its own design: Lanahan v. Commonwealth, 8 Norris 89. The use of a deadly weapon, such as a pistol, when voluntarily directed against a mortal part, is evidence from which the jury may rationally infer an intention to kill, when the conduct of the prisoner and the circumstances under which he fires * * * corroborate and sustain the inference: Id.</p> <p>“ When there is a, malicious intent to do great bodily harm, the offence is murder in the second degree, as are all other kinds of malicious killing, except those specially referred to in the statute.</p> <p>“Malice may be either express or implied. Express malice is, where one kills another with sedate, deliberate mind, and formed design, which design may be evinced by external circumstances, discovering an inward intention, as by lying in wait, former grudges, menaces and plans to do groat bodily harm. Malice is implied by law from any deliberate and cruel act committed by one person against another.</p> <p>“Voluntary manslaughter, which, you will remember, is the grade of felonious homicide in which there is no malice, but the presence of passion, is based upon a theory which recognises the frailty of human nature, but which does not tolerate the taking of human life, no matter under what circumstances of provocation the act may have been committed. A homicide thus perpetrated is neither excusable nor justifiable, but the grade of the offence is reduced to voluntary manslaughter. Should one kill another suddenly, and without any or a considerable provocation, the law implies malice, and the killing is murder; if the provocation was great, the offence would be manslaughter, and not murder. To reduce the offence to manslaughter it is necessary that ‘ a quarrel should take place, and blows have been interchanged between parties in some measure upon equal terms of strength and condition for fighting, and this without regard to question of who struck the first blow.’</p> <p>“To justify a conviction for manslaughter, and not murder, the death must have occurred in the heat of blood, on an immediate provocation, there having been no previous malice. The theory of the' Commonwealth is that this was not only murder, but that it was murder of the first degree. To sustain this position the Commonwealth refers to the testimony of, especially among others, the Rev. Dr. Stuart, and the two sons of the prisoner, to prove that the parties had lived upon bad terms; that this led to downright violence, for which the prisoner was arrested and punished; that after an arbitration and award, the prisoner and his wife did not live together; that at various times he attempted to be again introduced into the house, even up to the Friday before the 18th of November; that in July last he purchased a pistol of John Worth, after two former purchases had resulted unsatisfactorily to him; and especially that to Mrs. Alice Haddon, after repeated attempts to be introduced into the house in which his wife resided, and from which introduction, she, the wife, shrunk with ‘ an exclamation of terror, and ran in her room and locked the door,’ he declared she would know better than to treat him badly again, for if she would he would break her neck.</p> <p>“ It is unnecessary, after the able comment upon the evidence by the Commonwealth’s attorneys, to weary you with further details of evidence, for the defence does not take its stand upon a denial of the facts, but assert, with great ability, that the prisoner is not a man of sound mind; that he is in fact insane; that being so, he is not responsible for any act which he may have committed. To establish this proposition the defence have called fourteen or fifteen witnesses, including one physician, and they testify, subject to cross-examination, to the insanity of the prisoner. One speaks of him as always queer, a man of peculiar habits; and another, that he was £as crazy as a bed-bug;’ and on cross-examination said, that his brain was shattered. Others refer to his crying because- his hands were stained; passed out of the door of the house without speaking, and complained of his head; asked questions and gave strange answers. His sisters speak of his having been afraid to sit by himself; they gave you the story of the conduct of the prisoner at the window (though he did not throw himself out), and said he supposed his wife and children had poisoned him, and was nervous, could not sleep, and complained of his head; was afraid of a dog or cat. One witness gives an account of his trip to the Centennial ground, and the nature of his conversation. Margaret Rankin gave you a long account of his conduct at the boarding-house, and especially for the week- preceding this transaction. She speaks of his eyes being wild, his throwing meat on the floor, and preserves around the table. She described his conduct in the bedroom, which you must remember. This witness was subjected to a long and severe cross-examination, and the whole testimony is for your consideration.</p> <p>“ Other witnesses also speak of his condition as they each, from time to time, knew him, up to the time of his arrest. The physician who was examined, Dr. Wise, gave you his opinion of the mental unsoundness of the prisoner, together with the time and circumstances surrounding the prisoner when he examined him. This witness was also subjected to an extended and severe cross-examination, and his whole testimony is submitted to you for your consideration.</p> <p>“ In addition to this testimony, the defence produce a witness to prove that blood relations of the prisoner have been afflicted with mental disease; a sister was weak-minded; a niece subject to fits, though she had been married for seven years ; and a cousin was born an idiot. Without going into further detail, this is the substance of the evidence for the defence, and which, it is argued, with the circumstances directly connected with the act of killing, prove satisfactorily that the defendant is not a responsible being.</p> <p>“ The Commonwealth, to rebut this evidence, point to the evidence of the facts attending the killing, the conduct of the prisoner at the church, and the general circumstances of the case. The district attorney further attempts to discredit the statement of one of the sisters of the prisoner, with reference to the poison, and the visit to Dr. Graham, and also the statement of Margaret Rankin in relation to the whereabouts of the deceased during the week before November 18th 1877. In addition to this, the physician of the county prison, two of the keepers there, the officers who arrested the prisoner, all testily of the interview with the prisoner, and their opinions of his mental condition.</p> <p>“ They all say he was sane, in their opinions. Other witnesses, associated with him in business, or who have known him for several years, including the rector of the Church of the Ascension, speak of his mental condition; while two witnesses, Rev. Aug. Williams and Francis Spering. say that the prisoner gave a reason for his conduct; to the first he said ‘that his life was miserable and unpleasant, but that was no excuse for shooting,’ and to the latter he said, ‘ not being allowed to visit them (the boys), was the cause of his shooting her.’ A will of the prisoner and also certain letters are produced, which, it is argued all go to establish the fact, that A. B. Sayres was not an insane man, and is therefore responsible to the law. It is right also to add that the defence ofiered evidence to show what Dr. Smith had really said at the county prison in relation to Sayres’s mental condition, and their evidence is also submitted to you for your consideration.</p> <p>“ I have not gone into the details of this evidence on either side, nor is it necessary, for it has been the subject of most elaborate and minute comments of the counsel on both sides. The evidence as a whole, together with the cross-examination of each of the witnesses, is again submitted to you for your consideration, and with the whole evidence before you, you naturally will inquire into the principles of law applicable to a defence of this nature, and therefore it becomes my duty to instruct you upon the law of insanity.</p> <p>“We have said that the defence in this case rests upon the broad ground of insanity. What particular form the disease in this case assumed has not been specified, and therefore we consider it to be our duty to charge you upon three -eneral divisions of the subject, which will embrace:</p> <p>“ 1st. General insanity.</p> <p>“2d. Partial insanity, hallucination or delusion.</p> <p>“3d. Homicidal mania.</p> <p>“ Some years ago, in Commonwealth v. Freeth, 6 Am. Law Reg. 400, May 1858, s. c. Leg. Int., March 26th 1858, p. 100, I expressed my views at length upon the subject; I have at this time given very careful and protracted consideration to the subject, and have reviewed what was then said. With advanced knowledge and additional experience, I, without hesitation, adopt, with some slight modifications, the views then expressed, as the best expression I can now give to what I believe to be the law of Pennsylvania upon the subject of insanity.</p> <p>“ 1. General insanity. The defence, then, in this case, is that the prisoner, at the time of the commission of this offence, was not an accountable being. If this allegation is true, it would' be monstrous to punish him, and therefore we find the law to be, that if one charged with the commission of crime is so entirely devoid of understanding as to be either an idiot or a madman, he is thereby acquitted of all guilt — he is not criminally responsible to the offended majesty of the law, but becomes at once rather an object of pity than the subject of punishment.</p> <p>It is unnecessary for me to say to you, that we will be obliged to investigate a most delicate and dangerous subject; nevertheless, we will endeavor to lay down such rules and tests as will enable you to arrive at a satisfactory conclusion. If the prisoner at the bar, at the time he committed the act, had not sufficient capacity to know whether his act was right or wrong, and whether it was contrary to law, he is not responsible; that is in fact general insanity, so far as the act in question is concerned, and it must be so great in extent and degree, as to blind him to the natural consequences of his moral duty, and he must have utterly destroyed his perceptions of right and wrong.</p> <p>“ The test in this instance, as you perceive, is the power or capacity of the prisoner to distinguish between right and wrong in reference to the particular act in question: for although a man may be sane upon every other subject, yet, if he be mad, to use an expressive phrase, upon this subject, and so far as the act under immediate investigation is concerned, he thereby loses that control of his mental powers which renders him a responsible being. The test thus suggested, has beeri adopted by the judges of England, and by the courts of our own state, and is too well settled to be shaken.</p> <p>“ 2. Partial insanity. Rut suppose that the prisoner was able to distinguish between right and wrong, and yet was laboring under partial insanity, hallucination or delusion, which drove him to the commission of the act as a duty of overwhelming necessity, is he in such cases responsible for his act ?</p> <p>“ If the delusion were of such a nature as to induce the prisoner to believe in the real existence of facts which were entirely imaginary, but which,- if true, would have been a good defence, he would not be responsible. We, however, desire at this stage of our remarks, to refer rather to other delusions than the class thus spoken' of, reserving for future consideration our remarks on this branch of the subject.</p> <p>“ That partial insanity, hallucination, or delusion, coupled with the power of discriminating between right and wrong, is an excuse for crime, was held in the charge of Chief Justice Hibson, in Commonwealth v. Mosler, 4 Barr 2G6, where the Chief Justice says: ‘ It (insanity) must amount to delusion or hallucination, controlling his will and making the commission of the act a duty of overruling necessity.’ And, again, he says: ‘ The law is, that whether insanity bo general or partial, it must be so great as to have controlled the will of its subject, and to have taken from him the freedom of moral action.’</p> <p>“ We cannot, however, leave this branch of the subject to doubt or uncertainty, and our conclusion is, after a somewhat extended investigation of the law, that the proper rule to be adopted upon the point in the question is the following :</p> <p>“ If the prisoner, although he labors under partial insanity, hallucination or delusion, did understand the nature and character of his acts, had a knowledge that it was wrong and criminal, and mental power sufficient to apply that knowledge to his own case, and knew if he did the act, he would do wrong and would receive punishment ; if, further, ho had sufficient power of memory to recollect the relation in which he stood to others, and others stood to him, that the act in question was contrary to the plain dictates of justice and right, injurious to others, and a violation of the dictates of duty, he would be responsible.</p> <p>“ A man must, therefore, labor under something more than ‘ a mere moral obliquity of perception,’ and ‘a man whose mind squints, unless impelled to crime by this very mental obliquity, is as much amenable to punishment as one whose eye squints.’</p> <p>“ The jury must, therefore, even though they believe the prisoner labored under a diseased and unsound state of mind, be satisfied that this diseased or unsound state of mind, existed to such a degree, that although he could distinguish between right and wrong, yet with reference to the act in question, his reason, conscience and judgment, were so entirely perverted, as to render the commission of the act in question a duty of overwhelming necessity.</p> <p>“ But, there is another species of delusion entirely distinct from those which wo have just considered, which is recognised by the law, and which, when the jury believe that it clearly exists, will entitle the prisoner to an acquittal. I refer to that delusion by reason of which the prisoner commits the act under a fixed bona fide belief (which is a delusion), that certain facts existed which were wholly imaginary, but which, if true, would have been a good defence.</p> <p>“The judges of England, in their answer to the fourth question propounded to them by the House of Lords, say — supposing that one labors under partial delusion and is not in other respects insane, ‘ We think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if, under the influence of delusion, he supposes a man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge, he would be liable to punishment.’</p> <p>“ 3. Homicidal mania. Besides the kinds of insanity to which I have already referred, and which, strictly speaking, affect the mind only, we have moral or homicidal insanity, which seems to be an irresistible inclination to hill, or to commit some other particular offence. We are obliged, by the force of authority, to say to you, that there is such a disease known to the law as homicidal insanity; what it is, or in what it consists, no lawyer or judge has ever yet been able to explain with precision. Physicians, especially those having charge of the insane, gradually, it would seem, have come to the conclusion that all wicked.men are mad, and many of the judges have so far fallen into the same error as to render it possible for any man to escape the penalty which the law affixes to crime.</p> <p>“We do not intend to be understood as expressing the opinion that in some instances human beings are not afflicted with a homicidal mania, but wre do intend to say that a defence consisting exclusively of this species of insanity, has frequently been made the means by which a notorious offender has escaped punishment. What, then, is that form of disease, denominated homicidal mania, which will excuse one for having committed a murder ?</p> <p>“Chief Justice Gibson calls it ‘that unseen ligament pressing on the mind and drawing it to consequences which it sees but cannot avoid, and placing it under a coercion which, while its results are clearly perceived, is incapable of resistance’ — ‘ an irresistible inclination to kill.’</p> <p>“If by moral insanity it be understood only a disordered or perverted state of the affections or moral powers of the mind, it cannot be too soon discarded as affording any shield from punishment for crime; if it can be truly said that one who indulges in violent emotions, such as remorse, anger, shame, griéf, and the like, is afflicted with homicidal insanity, it will be difficult, yes, impossible, to say where sanity ends, and insanity begins ; for, by way of illustration, the man who is lashed into fury by a fit of anger, is in one sense insane.</p> <p>“ As a general rule it will be found that instances are rare of cases of homicidal insanity occurring wherein the mania is not of a general nature, and results in a desire to kill any and every person who may chance to fall within the range of the maniac’s malevolence, as it is general, so as also it is based upon imaginary and not upon real wrongs ; if it is directed against a particular person (as is sometimes the case), then also the cause of the act will be imaginary. When, therefore, the jury find from the evidence, that the act had been the result not of an imaginary but real wrong, they will take care to examine with great caution into the circumstances of the case, so that, with the real wrong, they may or may not also discover revenge, anger, and kindred emotions of the mind, to be the real motive which has occasioned the homicidal act.</p> <p>“ Orilla has said, ‘ That the mind is always greatly troubled when it is agitated by anger, tormented by an unfortunate love, bewildered by jealousy, overcome by despair, haunted by terror, or corrupted by an unconquerable desire for vengeance. Then, as is commonly said, a man is no longer master of himself; his reason is affected, his ideas are in disorder, he is like a madman. But in all these cases a man does not lose his knowledge of the real relations of things; ho may exaggerate his misfortune, but his misfortune is real, and if it carry him to commit a criminal act, this act is perfectly well motived.’</p> <p>“ The man who has a clear conception of the various relations of life, and the real relations of things, is not often afflicted with insanity of any description; he may become angry, and in a fit of temper kill his enemy, or even his friend, but this is not, and I hope never will be, called in courts of justice insanity. Again, one who is really driven on by an uncontrollable impulse to the commission of a crime, will be able, generally, to show its ‘ contemporaneous existence evinced by present circumstances, or the existence of an habitual tendency developed in particular cases, and becoming in itself a second nature.’ We say generally, for it is possible that by a sudden impulse one may kill another, but such a case would be an exceptional one, and is likely to be surrounded by circumstances indicating the insane character of the act, and that it is perpetrated without a motive. Such cases should be examined by the jury with the utmost caution.</p> <p>“Chief Justice Lewis has said that moral insanity ‘bears a striking resemblance to vice,’ and further, ‘it ought never to be admitted as a defence, until it is shown that these propensities exist in such violence as to subjugate the intellect, control the will, and render it impossible for the party to do otherwise than yield.’ And again, ‘ this state of mind is not to bo presumed without evidence, nor does it usually occur without some premonitory symptoms indicating its approach.’</p> <p>“We say to you, as the result of our reflections on this branch of the subject, that if the prisoner was actuated by an irresistible inclination to kill, and was utterly unable to control his will or subjugate his intellect, and was not actuated by anger, jealousy, revenge and kindred evil passions, he is entitled to an acquittal. [As the law presumes sanity to be the normal condition of the prisoner, and insanity an abnormal condition, the burden rests upon him to prove his insanity, as an excuse for an act which would otherwise be criminal. The evidence, therefore, which is intended to establish this defence, must be satisfactory to the jury, and the conclusion such as fairly results from the evidence.]</p> <p>“Upon all other questions of this cause, it is the duty of the Commonwealth to establish the guilt of the prisoner by evidence beyond a doubt. This doubt should be reasonable, and it should be something which causes the jury to pause before coming to a conclusion, upon a candid and conscientious consideration of all the testimony in the case. If such a doubt exists, it is the property of the prisoner, and he is entitled to the benefit of it.</p> <p>“ The law permits the jury in all cases to declare the grade of the offence, in the event of a verdict against the prisoner.</p> <p>[“ It is right to remark, without intending to disturb your right to fix the degree of crime, that in a case in which, if the jury believe a deadly weapon has been used under circumstances of atrocity, and with wilful deliberation and premeditation, and with intent to kill, it is difficult to perceive how a verdict less than that of murder in the first degree could be rendered.]</p> <p>“ The grade of offence, however, is for you. If the jury believe the prisoner to have been insane, then the Act of Assembly requires the jury ‘ to find specially whether such person was insane at the time of the commission of the offence, and to declare whether he was acquitted by them on the ground of such insanity.’ ”</p> <p>The jury rendered a verdict of murder in the first degeee, and the prisoner was sentenced to be hanged. He then took this writ, and assigned for error the overruling of the challenge of Dugan, the rulings of the court on the foregoing offers of evidence, and the portions of the above charge in brackets.</p> <p>The prisoner was convicted on July 13th 1878. The writ of error was not taken out until November 30th 1878. There was no special allowance of it by any .Supreme judge. The Commonwealth, therefore, moved to quash the writ, on the ground that it had not issued within the time prescribed by the Act of March 24th 1877, Pamph. L. 40, which directs that “ no writ of error or certiorari, in capital offences, shall be issued from the Supreme Court to any Court of Oyer and Terminer and General Jail Delivery, to remove the indictments, record and proceedings to the Supreme Court for review, after twenty days from sentence, unless specially allowed by the Supreme Court or a judge thereof.”</p> <p>An allowance was subsequently applied for and refused. The argument on the motion to quash was submitted on the paper-books, and there was no oral argument thereon.</p>

<p>Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1879, No. 33.</p> <p>Case by Thomas Pair against the City of Philadelphia, to recover damages alleged to have been sustained by reason of the insufficiency of a public sewer to carry off the surface water which accumulated on the premises of the plaintiff.</p> <p>The facts are stated in the opinion of this- court.</p>

<p>Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1878, No. 124.</p> <p>Ejectment by Jacob S. Beam, to the use of Samuel S. Kelly, against Charles C. Carman, for a house and lot in the city of Philadelphia. Defendants pleaded “Not guilty.” Before the trial the equitable plaintiff obtained possession of the premises as hereinafter stated, and then gave defendant notice of his claim for mesne profits.</p> <p>It appeared at the trial that Beam and Carman entered into an agreement in writing, dated September 18th 1867, wherein Beam agreed to furnish all the materials, and to glaze and paint thirty-two houses, then being erected by Carman, and that in payment therefor he was to receive §12,500, to be paid §5000 in cash as the work progressed, and §7500 in real estate, consisting of two of the houses on which the work was to be done, and of which the house in suit was one. This latter Beam agreed in writing to sell to Kelly for §8000, §4000 in cash, and subject to a mortgage debt for a like amount. On February 14th 1868, at the request of Beam and Kelly, Carman executed a deed in escrow to Beam, and the latter one to Kelly, and both were left with a conveyancer with instructions to deliver the deed to Beam on Carman’s order whenever the work on his contract warranted it, and at the same time to deliver Beam’s deed to Kelly. On the -same day Beam, Carman, and one Wilbur, gave to Kelly a bond of indemnity against liens, which also contained a condition that the houses should be finished by June 1868. Kelly advanced to Beam the full amount of the purchase-money; The houses not being completed at the time named, on the 9th of September 1868, ■ Beam, with the assent of Kelly and Carman, assigned his interest in the contract to Wilbur, part of the consideration being that Wilbur should give Kelly a mortgage for $4000 on other premises, and then Kelly was to assign his interest in the house to Wilbur. The latter failed to give the mortgage to Kelly, and in April 1873, Kelly brought this action of ejectment.</p> <p>In the meantime Mr. Wilbur had gone on and finished the painting contract, and claimed this house from Carman,, and Carman, on the 21st of August 1873, at the request of Wilbur, made a deed to S. S. Pearson for the premises in question. Before doing so, however, he took from Pearson a bond to indemnify him against any loss by reason of this ejectment suit which was then pending. He also gave to Wilbur, a second mortgage for $2500, which was ‘then on the house unsatisfied, but which Carman had paid off. The original $4000 mortgage on the premises, in the meantime, had been reduced to $3500. This conveyance to Wilbur, and assignment of mortgage, were in full of all claims and demands which he had against Carman. On the 15th April 1876, S. S. Pearson, who then held the title for Wilbur, conveyed the premises in question to S. S. Kelly, the plaintiff, subject to the two mortgages, one for $3500 and one for $2500.</p> <p>The plaintiff then gave notice, “ that on the trial a claim would be made for the mesne profits of the premises described in the writ, > and also for the amount of $2500, secured by the defendant by virtue of a mortgage secured on the premises while he was the mere custodian of the title.”</p> <p>* The defendant, among others, presented the following points, all of which the court, Piare, P. J. refused:—</p> <p>5. That if Beam, after the execution of the deed in escrow, with the knowledge and consent of Kelly, assigned all his interest in the contract with Carman, and all money due and to become due thereon, to Horace P. Wilbur, whom defendant accepted to do the work, then Carman became liable under the contract to said Wilbur instead of to Beam, and the plaintiff cannot recover.</p> <p>6. That Carman was liable to Kelly only through his contract with Beam, and that as Beam, with the consent of Kelly, by the writing endorsed on the contract dated September 9th 1868, released Carman from every claim and demand for or by reason of the said contract, then the plaintiff cannot recover.</p> <p>8. That even though Wilbur subsequently failed to keep a portion of said agreement with Kelly, yet Kelly having accepted said agreement and released Carman, there was a sufficient consideration for the release to Carman, and plaintiff cannot recover.</p> <p>12. That as the plaintiff took the title to the premises in question, expressly under and subject to the mortgage for §2500, he is thereby estopped from making any claim for the amount of the said mortgage.</p> <p>The court, inter alia, charged:</p> <p>“ For the purposes of this particular house and the rights of Mr. Kelly, the agreement of February 1868, and the making of these deeds, and delivery of them to Yardley, changed the order of payment entirely from what it was in the contract originally between Mr. Beam and Mr. Carman, and gave Mr. Kelly the right to have the first §4000 worth of work applied to his benefit by securing to him the title to this house.</p> <p>“ Now, the first question of fact which you have to consider, and it is the turning point of the whole case, is whether or not Mr. Beam did §4000 worth of work upon this contract. If the §4000 worth of work was done then Mr. Kelly has the right to recover, lie had the right to have the first §4000 worth of work done applied to his benefit to give him title. * * * The plaintiff’s case was, that he was to have had the property in 1868, subject to a §4000 mortgage, and in point of fact he did not get it until 1876, and when he did get it, it was subject to mortgages of §6000. For this difference, and including the profits the defendant had made out of the property in the meantime, your verdict should be for the plaintiff, if you so find.”</p> <p>Verdict for plaintiff' for §3500, and after judgment thereon, defendant took this writ and inter alia, assigned for error the answers to the above points, and the portions of the charge noted.</p>

<p>Plaintiff made a parol contract with defendant to lease certain premises for five years, at a fixed rent. Defendant refused to take the premises at the f.jini> agreed upon, and they remained untenanted for a year, when plaintiff an action to recover damages therefor, Held, that the action would (lie; but as the proposed lease was within the Statute of Frauds, and hence the parol agreement could give it no force, the damages recovered could be only those which arose directly from the breach; and reversing the court below, that the rent agreed upon could not be used as a measure of damages, nor could the plaintiff recover for the time the premises were idle, in the absence of proof that he was prevented from renting them by reason of the agreement with the defendant.</p>

<p>1. Negligence is always a question for the jury, when there is reasonable doubt as to the facts, or as to tho inferences to be drawn from them. Where the measure of duty is ordinary and reasonable care and the degree of care varies according to circumstances, the question of negligence is necessarily for the jury.</p> <p>2. W. took passage on a local train, for “ Penn Valley.” After leaving the first station east of his destination, the brakeman, as was the custom of the road, announced “ The next station will be Penn Valley.” Shortly after the train slowed-up and stopped opposite a platform and station-house marked] “ Penn Valley Station.” W. stepped off the car on the left side, for the pur-r pose of crossing the track to reach the platform, and was struck by a passing express train and instantly killed. It appeared that the train had stopped! in compliance with a rule of the company, that tho local trains should give the preference to express trains at stations, and that the regular platform for local passengers to alight was on the right and some distance beyond where the train had stopped. Held, that the question of contributory negligence was properly submitted to the jury.</p> <p>3. The rule, that it is the duty of a person about to cross a railroad track to stop, look and listen, is not always applicable to passengers leaving a train and crossing the track, to reach the depot at tho point of destination.</p>

<p>1. A tenant claimed to hold under an old agreement. The landlord denied that the agreement was in force, and notified the tenant that he would eject him in ten days and hold him liable for damages, which notice, three days thereafter, was followed by another notifying him that the landlord considered him a trespasser. The tenant held on for some time thereafter, and then surrendered the premises. In assumpsit for use and occupation, Held, that the question, whether the tenant was or was not a trespasser, was for the consideration of the jury.</p> <p>2. Such an action is not necessarily founded upon a specific contract, written or oral, but upon the use of the premises. The occupant may be in fact a trespasser, but the owner may waive the trespass and recover in assumpsit, and it does not lie with the tortfeasor to defeat him by interposing his own wrong. It was error, therefore, to instruct the jury that they must find some new contract between these parties to rebut the presumption arising from these notices, for that presumption might well be rebutted by the subsequent acts of the parties.</p>

<p>Appeal from the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1878, No. 166.</p> <p>This was the appeal of Henry F. West, assignee of the Girard Tube Works and Iron Company, from the decree of the court dismissing the exceptions to, and confirming the report of the auditor appointed to distribute a fund arising from a sheriff’s sale of real estate.</p> <p>The facts as found by the auditor, Pierce Archer, Jr., Esq., were, in substance as follows : The fund in dispute was $3607.70, the balance of the purchase-money of a wharf property on the river Schuylkill,' the title to which was in the Girard Tube Works and Iron Company, and which was sold under a judgment for arrears of ground-rent. The fund in the hands of the sheriff was claimed by the First National Bank of Reading, and by Henry F. West, the assignee, for the benefit of creditors of the Girard Tube Works and Iron Company.</p> <p>•During the years 1874-5, the bank had been discounting tjie paper of the Girard Tube Works and Iron Company of Philadelphia. In December 1874, the paper so held by the bank amounted to $21,508.70, part of which was then near maturity. The bank, at the request of. the Girard company, agreed to renewals of the paper, provided mortgages were given to secure them to the amount of $21,000. Accordingly, on December 31st 1874, a mortgage for $17,000 was assigned by the Girard company to the bank, secured upon certain wharf property on the river Schuylkill, near Arch street. The mortgage itself was given by Charles T. Murphy to the bank; but in point of fact the property itself belonged to the Girard company, and Murphy, who merely held it for them as trustee, afterwards executed a declaration of trust to that effect. This mortgage, with another of $4000 on No. 1427 Vine street, executed directly by Charles T. Murphy to President Eckert of the bank, made up the $21,000 security required by the bank, and the transaction was Consummated on January 4th 1875, by the de-livery of the papers.</p> <p>Contemporaneously therewith, President Eckert, for the bank, delivered to the Girard company a receipt or declaration, reciting, inter alia, that he holds the $17,000 mortgage as security for the payment of certain promissory notes of said company then held by the bank and any renewals of the same. These renewal notes, it appeared, were always sent several days in advance of the maturity of the originals. There were three of these notes due on March 3d 1875, which were renewed for four months, with one note amounting to the aggregate, $5156.95.</p> <p>On April 15th, about a month after this renewal, the Girard company wrote to the bank, as follows:—</p> <p>“The two notes of ours maturing on the 21st and 27thinst., were included in Mr. Norris’s statement for renewal. We are advised you have sent them forward for collection. Enclosed we hand you two notes of Geary, Tilton & Colwell for §2718.75 and §2371.69, respectively, which, if you prefer to our paper, we ask you to discount and apply proceeds to payment of our notes. Should this meet your views, please advise us.”</p> <p>On April 19th 1875, the bank wrote in reply: “Yours, 15th, with two enclosures addressed to Mr. Eckert for discount, has been received. I send enclosed statement showing you are short in the transaction §74.42, for which send us your check.”</p> <p>On April 20th, the company acknowledged the letter of the 19th and statement, and enclosed chock as requested.</p> <p>At this time there were due the note of the company for §5156.95, and the two notes of Geary, Tilton & Colwell, of which that for §2718.75 was paid on June 27th. On the 9th of June, the company wrote that they desired to have the wharf property released from the mortgage. The negotiation culminated on July 3d, in an interview in Philadelphia, between President Eckert, of the bank, and Mr. Charles T. Murray, treasurer of the Girard company, at which Mr. Norris appeared as attorney for the bank. Before leaving Heading, President Eckert directed one of the clerks to make him a statement of the Girard company’s account, which he did, showing but the one note of §5156.95 due by them as makers, and omitting the note for §2371.69, on which they were liable as endorsers. Eckert swore that he did not then know of the existence'of the note omitted; he brought this memorandum with him to this city, and having no other knowledge on the subject but that furnished by the clerk, he assumed it to be correct, and acted on it at the interview with Murphy.</p> <p>The result of the interview was, that Murphy gave Eckert two notes of the Pittsburgh Bolt Company, with the Girard company’s endorsement, in exchange for the $5156.95 note, the bank paying him the difference in cash, and receiving as security a mortgage for §4000 on another property. The §17,000 mortgage was then satisfied of record by the bank, and the second day thereafter the company failed and made an assignment to Mr. West, the appellant. The auditor found that the parties all concur that the adjustment of the 3d of July proceeded upon the declaration and assumption that but one note of the Girard company wras still held by the bank being about $5000. He further reported, “ It is impossible for the auditor, in the view he takes of the evidence, to conclude otherwise than that the mortgage of the bank was surrendered and satisfied by its chief officer through mistake and oversight, caused by the mis-infomiation of the clerk and the conduct of Mr. Murphy.</p> <p>“It is not pretended by any one that Eckert knowingly released, or intended to release, a first-class security, with knowledge of the note in dispute being in existence, without an equivalent. He distinctly swears he knew of but the one note due, and- that he would not have released the security for that one except getting, as he thought, nearly an equal one in the $4000 mortgage.</p> <p>“ Even Charles T. Murphy does not testify that the other note was at all spoken of or considered at the interview, or that it was regarded by the parties as having been taken out of the protection of 'the $17,000 mortgage. The extent of his claim is that because the bank took and discounted the Geary, Tilton & Colwell notes, shifting the Girard company’s debtors place from maker to that of endorser, that, therefore, there was no indebtedness to the bank on that account. He did not swear that the bank held no other liability of the company, only that they held none of the company’s paper for this amount, except their endorsement. He says he knew of this endorsement at the settlement, but considered that the Girard company was not liable because the bolt company was then good, and that while, as every one concedes, the unpaid note was not one of the notes (originally) secured by the mortgage, he goes the length of swearing that neither was it taken in lieu of one secured thereby — that is, not a renewal; because he says, arguendo , — the proceeds of the secured notes when discounted took the place of the original notes, and were placed to their credit. He does not aver any parol agreement to release the security and accept the new notes, nor does he pretend that the credit and standing of the new names of Geary, Tilton & Colwell were known to the bank, or that they acted upon it.”</p> <p>In passing upon the law of the case, the auditor said :</p> <p>“ First, then, as to the effect of the entry of satisfaction of the mortgage : If this question arose between parties strangers to the transaction — if, in other words, the satisfaction was sought to be invalidated, and the mortgage revived to the prejudice of an innocent purchaser for value without notice — there would be little difficulty in disposing of the attempt to do so manifest an injustice. Rut such is not the case in'hand, and .for the present the question is to be regarded as between the original mortgagor and mortgagee, and whether the mortgagee is bound absolutely and at all events by the satisfaction of record. I am of opinion that he is not, and that if a plain mistake of fact was made in satisfying the mortgage, that he is entitled to be heard in this controversy.</p> <p>“ Judge Woodward said, in Fleming -0. Parry, 12 Harris 47, that between the original parties, where the rights of third parties had not intervened, a release or extinguishment of a mortgage or bond without actual payment, is not a discharge unless so intended by the parties, and “ that there is no magic in an entry of satisfaction, either on a judgment or mortgage, which can prevail against the truth and equity of the transaction,” and if put on record at the instance of the mortgagor and for his benefit, he is not entitled to plead an estoppel; ‘a record it is,’ lie says, ‘but not a judicial record,’ citing Morris v. Brady, 5 Wliart. 541; Robert v. Halstead, 9 Barr 32.</p> <p>“ Sammans, Trustee, v. Binder, 7 Whart. 209, decides that the entry of ‘ settled’ on the record of the suit on a mortgage was not,, conclusive on the mortgagee as against a purchaser having knowledge of equities to the contrary.</p> <p>“ The whole subject was very fully considered by Judge Agnew in Lancaster v. Smith, 17 P. F. Smith 427. He held that the registry of a mortgage is not such a record as imports absolute verity, that it is in no sense judicial, that the entry of satisfaction is the act of the party, not the official act of the recorder, and that a satisfaction procured by fraud is no satisfaction at all.</p> <p>“ The result of an examination of these and other cases show that as between the parties, where there is no element of estoppel, the record of satisfaction of a mortgage has no greater sanctity or solemnity than any ordinary declaration in writing or a receipt made by a party, procured by fraud or by accident or mistake, and it is therefore open to contradiction and may be shown to have been given under a mistake of fact or law : Per Sharswood, J., Russell v. The Church, 15 P. F. Smith 9.</p> <p>“Not importing absolute verity itself,, therefore, as a judicial record, it is not protected by any rule governing official records of courts which imply judicial consideration and determination ; nor does it stand i'n equity as a deed, requiring a preponderance of proof unusual in other cases, to overcome it.</p> <p>“ That equity would set aside the entry of satisfaction upon proof of the facts alleged in this case, I do not entertain a doubt, upon the grounds either of mistake or fraud, and since the sheriff’s sale has divested the lien of the mortgage from the land, the only remedy of the mortgagee is the present one — by claim upon its proceeds: Bright. Eq., sects. 58-9, 61 — 2; Adams’ Eq. *188-9.</p> <p>“ Upon the second question as to whether, the assignee for creditors stands in any better position than his assignor — the mortgagor — - I have no difficulty whatever. The very recent case of City Bank of Harrisburg v. Sherlock, 3 Norris 366, definitely settles this question, citing Fulton’s Estate, 1 P. F. Smith 211, which contains a review of a host of authorities on the subject.”</p> <p>The auditor awarded to the bank the amount of the Geary, Til-ton & Colwell note with interest, and the balance of the fund to the assignee. The latter filed a number of exceptions, among which were the following:</p> <p>Because ho reported that the notes given by letter of April 15th 1875, were a renewal of the previous notes, and secured by the mortgage of $17,000 ; because he did not report that the letter of April 15th 1875, from the Girard Tube Works, together with the reply thereto, made the notes then taken a payment of the previous notes; because he admitted the testimony of Mr. Eckert to contradict or explain the meaning of said letter; and because he reported that the entry of satisfaction so made was not final and conclusive between the said parties.</p> <p>The court dismissed the exceptions and confirmed the report, and from this decree this appeal was taken.</p>

<p>• The testatrix devised certain real estate to her executors, to he held in trust ■by them to pay over the rents, issues and profits to her son for life, and then disposed of the remainder as follows : “ and upon and immediately after the death of my son, to assign, grant and convey the said real estate to such person or persons, and for such estate or estates, and in such proportions as would, by the intestate laws of this Commonwealth, be entitled to the same, if he had died intestate seised thereof in fee.” After the death of the testar trix the son adopted a child under the provisions of the Act of May 4th 1855, and subsequently died, leaving this adopted child but no issue. Held, that this adopted child was entitled to the estate.</p>

<p>1. In proceedings to disti-ibute an estate, the Orphans’ Court has jurisdiction to inquire into and determine all questions in the way of distribution) affecting creditors or assignees of legatees, and parties who submit themselves) to its decree are concluded thereby.</p> <p>2. While an assignee of a legatee is not compelled to go into the Orphans’ Court with his claim, yet if he submit it to that tribunal, its decree, unappealed from, is final, and he cannot afterwards proceed upon an attachment in the Common Pleas.</p>

<p>In tlie absence of stipulation by a carrier to transport freight beyond the terminus of its own route, it is not responsible for the default of those it employs to convey the remainder of the distance, but if it make itself responsible by contract, or if an agreement to be so can be fairly inferred from the bill of lading, it will be liable for a misdelivery of the goods by another carrier, to whom it has delivered them to be carried to their ultimate destination.</p>

<p>Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1878, No. 206.</p> <p>Appeal of Ann Hamill from the decree of the court, dismissing her bill for the review of the decree of said court, upon the adjudication of her account as administratrix of William Ilamill, de- , ceased.</p> <p>William Hamill died February 22d 1876, intestate, leaving a widow, the accountant, and three children by a former wife. The widow took out letters of administration and on the 28th of May 1877, she filed her account, which was audited June 25th 1877 by O’Brien, J., of the Orphans’ Court, before whom the widow claimed that she was a creditor of the estate, and alleged that fourteen years previously, she had loaned her husband §1500, and six years thereafter §866.13 additional, both of which sums were due her with interest. The facts as found by the auditing judge were in substance these: that Ann Hamill, then Ann Dougherty, married decedent on July 15th 1862, at which time Mr. Hamill was a journeyman harness-maker. That Mrs. Hamill, shortly before her marriage, had an establishment for the manufacture and sale of boys’ clothing, which she sold to Jane Holmes for $500 cash; that in May 1861, she drew out of the Saving Fund $496.05; that she then owned and still owns, a house on Newton street, which yielded her a rent of from $13 to $20 per month.</p> <p>Directly after the marriage, Mr. Hamill, in his own name, opened a pawnbroker’s shop and with his wife’s assistance continued the occupation from some time in July 1862, down to the day of his death, February 22d 1876. Immediately upon his decease, Mrs. Hamill took possession of the shop and goods and continued the business upon her own account.</p> <p>The following was the testimony of some of the witnesses:</p> <p>Francis McKeon. Knew deceased since 1843, intimately; he married Mrs. Hamill about fifteen years ago; was harness-maker, journeyman; means were limited; owned no real estate that I knew of, or personal estate except trifling. Knew Mrs. Hamill, the widow, since 1845; she had means when she married deceased; had a house; was in clothing business in South st. near Third st.; boys’ clothing; after marriage they went into the pawnbroking business; carried it on till his death; fair business; lived in the house; don’t think deceased had any money.</p> <p>A. F. McGarry. Am pawnbroker; knew deceased twenty-five years; July or August 1862, he said he had sold gold ; got large premium ; said it exultingly; premium was in neighborhood of $200 ; he said this gold he sold was his wife’s.</p> <p>Geo. C. Lee. Was tenant of Mrs. Hamill, 1006 Newton st., at first $9, then $13 per month to $17. Total amount, $1100, from October 1862 to 1870.</p> <p>Jane Holmes. I bought out Mrs. Hamill’s business; boys’ clothing ; paid her $500 in July 1862, just before she was married; paid in bank-notes.</p> <p>James McSorley. A few weeks before the marriage of decedent, Wm. Hamill (decedent) asked witness to lend him money to buy a wedding suit, but shortly afterward decedent told witness that he would not need the loan, as in a short time he expected to have the handling of a sum of money.</p> <p>The widow claimed that the money was loaned by her to her husband, to carry on the pawnbroking business, and that it was received by him as a loan and. held in trust for her use. The auditing judge, disallowed the claim on the ground that the evidence did not sustain it, and awarded the one-third of the estate to the widow and the balance to the three children of decedent, in equal shares. Exceptions were filed to this adjudication, it being alleged, inter alia, that the finding of the auditing judge was against the weight of the evidence. The court dismissed the exceptions and confirmed the adjudication. Subsequently the widow filed a bill for a rehearing, on the ground of after-discovered evidence. This evidence was that of Thomas Blackburn and was in substance:</p> <p>“ Decedent always led me to believe that it was his wife’s muney in the business, from first to last. I cannot remember now the exact words of our conversations on his business, but those conversations were in effect that it was his wife’s business, and her money was carrying it on and increasing it.</p> <p>“ The conversation I had with decedent in the year 1870, was in effect the same as at the time of his marriage, when he said he had nothing much to put in the business; that his wife had her money in it, and carried it on with her money.</p> <p>“I often had conversations with him, up to a few months of his death, and he never said anything to contradict the foregoing. He left the positive belief in my mind, from what he said, that his wife was carrying on the business with her money.”</p> <p>The court dismissed the bill arid confirmed the adjudication absolutely, when Ann Ilamill took this appeal.</p>

<p>Appeal from the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1878, No. 209. In Equity.</p> <p>This was the appeal of Henry G. Morris and 0. E. Morris, his assignee, from the decree of the court enjoining said assignee from selling or removing from the Southwark Foundry the machinery, fixtures and property mentioned in a catalogue of sale issued by said assignee.</p> <p>The bill was filed against appellants by John Vaughan Merrick, William Henry Merrick and John Edmund Cope.</p> <p>It is admitted by the pleadings that the plaintiffs, by deed dated the 31st December 1870, granted to the defendant, Henry G. Morris, two lots of ground, namely: First, a largo lot of ground, with the buildings and improvements thereon erected, situate on the south side of Washington avenue, and bounded by Fourth street, Fifth street, Federal street and Washington avenue, containing three hundred and ninety-six feet ten inches on Federal street, three hundred and ninety feet six inches on Fifth street, three hundred and twenty feet two inches on Fourth street, and four hundred and four feet two inches on Washington avenue; and secondly, a lot, with the stable thereon erected, situate at the southeast corner of Fifth and Federal streets, containing in front on Fifth street eighteen feet, and in depth eastwardly sixty-eight feet; subject, as to the first lot, to the payment of a yearly ground-rent of $6000, and as to the second lot, to the payment of a yearly ground-rent of $36; together with all the machinery, engines, boilers, railroad tracks and fixtures contained in or appurtenant to the premises first described. That the real estate and premises so conveyed were mortgaged by the said Henry G. Morris to the plaintiffs to secure the payment of part of the purchase-money, for which his bonds were given to each of the plaintiffs separately in the sum of $146,666.66, making the total amount of the bonds and mortgage $440,000, these papers being executed simultaneously with the deed, and the mortgage duly recorded. That a balance of $102,-666.66 of the purchase-money secured by these bonds and mortgage remains unpaid to each of the plaintiffs, and is now due and payable, and proceedings are about to be instituted to collect the same. The defendants allege in their answers that subsequently to the filing of the bill, proceedings were instituted by the plaintiffs on the said mortgage, under which the real estate and premises above mentioned were sold by the sheriff to the plaintiffs for the sum of $291,000.</p> <p>The plaintiffs allege in their bill that the premises thus conveyed to Henry G. Morris are known as “The Southwark Foundry,” in which a very large and extensive business was carried on by the plaintiffs prior to, and by the said Morris since, the sale thereof to him. That on the premises, and constituting a very valuable part of the same, are placed and erected a very large quantity of machinery, tools and fixtures of various kinds, which are a necessary part of the foundry, and without which it could not be properly or profitably operated. That all of these are covered by the said mortgage, and constitute a very valuable part of the security for the payment of the debts due by Henry G. Morris to the plaintiffs. To this the defendant, Henry G. Morris, answers that from the 1st January 1871, until the 29th April 1875, he carried on a very large and extensive business in the premises, but that the premises were not, as he is informed and believes, conveyed to him under the name of the Southwark Foundry, and that he is advised by counsel that the mortgage given by him to the plaintiffs does not, in law, cover a large quantity of machinery and tools of various kinds which are on these premises, but which are not attached to the freehold, and many of which have been purchased by him since the execution of the mortgage. The defendant, Charles E. Morris, answers that a large number of the said machines and tools are not a necessary part of the said foundry, and that it could be properly and profitably operated without them. He denies that these machines and tools are covered by the mortgage or constitute a valuable part of the security for the payment of the debts due by Henry G. Morris to the plaintiffs, and he alleges that the premises mentioned in the mortgage are not mortgaged as the Southwark Foundry, or as constituting any part of the same. He further alleges that by a bill of sale dated the 31st December 1870, the plaintiffs, in consideration of $277,000, bargained and sold unto Henry G. Morris, his heirs, executors, administrators and assigns, all the property, machinery, engines, fixtures, tools, goods, chattels, drawings, implements, appliances and other appurtenances, owned, used or held by them in and about the engineering establishment known as the Southwark Foundry, and mentioned in two books of inventory of fixtures, tools, chattels and appliances, made for the purposes of this sale, and signed at the end thereof by the plaintiffs, and all other property, tools, goods, chattels, &c., then being in the buildings and shops erected on the large lot of ground above mentioned, and also in the stable at the corner of Fifth and Federal streets ; together with all the fixtures in use and remaining on the wharf premises of the late Samuel Y. Merrick, below Reed street, in this city. He further answers that he is advised and believes that the articles mentioned in this bill of sale and the two inventories are not included in or covered by the said mortgage to the plaintiffs, and are not constituent parts of the mortgaged premises, but that they were the personal property of the said Henry G. Morris.</p> <p>It is further alleged by the bill, and admitted by the answers, that the said Henry G. Morris, on the 29th April 1875, by deed duly recorded, assigned all his estate and property to the defendant, Charles E. Morris, as trustee for his creditors.</p> <p>The bill then alleges that the assignee has advertised for sale by public auction the personal property of the assignor, and has issued catalogues thereof, in which are contained many items included in the mortgage, and really a part of the mortgaged premises. The answers admit the advertisement of the sale and the issuing of the catalogues, but deny that the catalogues contain any items included in the mortgage, or anything which was really a part of the mortgaged premises, or appurtenant thereto.</p> <p>The prayers of the bill are: 1st. For an injunction restraining Charles E. Morris, the assignee, from selling or removing from the foundry, any of the machinery, engines, boilers and fixtures appurtenant to said premises, and constituting part of the said foundry. 2d. For an injunction restraining him from proceeding with the sale, until it be ascertained under the direction of the court, what are the items of property upon the mortgaged premises, which constitute a necessary part of the same, and which shall not be sold by him as the personal property of the said Henry G. Morris. 8d. Further relief.</p> <p>On the filing of the bill on the 24th June 1875, a special injunction was granted, and by an interlocutory order made on the 28th June 1875, the injunction was continued until further order, and the cause was referred to W. J. McElroy, as examiner and master, to report the facts, the law and the form of a decree.</p> <p>The master made a voluminous report, and found, inter alia, the following facts:</p> <p>“ That the Southwark Foundry was an engineering establishment, covering a large extent of ground, with substantial and capacious buildings, and embracing within it a machine shop, brass and iron foundry, boiler shop, smith shop, pattern shop, carpenter shop, drawing room and erecting shop, with the requisite machinery, tools and appliances for carrying on these various, but connected branches of the business.</p> <p>“In the fall of the year 1870, negotiations took place between the plaintiffs and the defendant. Henry G. Morris, relative to the sale and purchase of this engineering establishment, and on the 31st of October 1870, the purchase was concluded upon the terms which are set forth in the agreement in writing, which recites that Henry G. Morris has purchased from William II. Merrick and John E. Cope, trading as Merrick k Sons, and from J. Vaughan Merrick, the Southwark Foundry, used and occupied by the firm in their business as manufacturers, and all the business, good-will, contracts, patents, licenses to use patented articles, fixtures, machinery, tools, &c., belonging to said firm, useful in the said business, and appurtenant thereto, or to the said premises known as the Southwark Foundry, and also a certain stable and lot of ground thereinafter mentioned, for the sum of $480,000, payable as thereinafter mentioned; and has also agreed to purchase the stock and material which may be in the hands of the said firm on the 31st day'of December next, upon the terms and at the valuation thereinafter particularly set forth and mentioned.</p> <p>' “ It further recites the intention of the parties, that Henry G. Morris shall receive and be vested with a good and perfect title to the real estate, subject to the yearly ground-rent of $6000 on the foundry property, and the yearly ground-rent of $36 on the stable property, and also with a good and perfect title in all and singular the estate, property, chattels, machinery, tools, contracts, patents, licenses to use patented articles, engines, fixtures, &c., used by the said firm in their business aforesaid, and necessary or appurtenant thereto.</p> <p>“ The parties then agree:</p> <p>“ That the plaintiffs will, on the 31st December 1870, convey to Morris, his heirs and assigns, by a good and marketable title, in fee simple, clear of all encumbrance other than the yearly ground-rent of $6000, the large-lot of ground, with the improvements and buildings thereon erected, situate on the south side of Washington avenue, the east side of Fifth street, the north side of Federal street, and west side of Fourth street, together with the appurtenances.</p> <p>“ That the plaintiffs will on the same day execute to Morris such deeds, assignments, transfers and other instruments of writing as shall vest in him, his executors, administrators and assigns, a good and perfect title to all and singular the goods and chattels, tools, patterns, machinery, drawings, fixtures, implements, appliances and other appurtenances whatsoever, owned and held by the said Merrick & Sons, and used in and about the engineering establishment of the said Merrick & Sons, and known as the Southwark Foundry, together with all and singular the fixtures in use and remaining on the wharf premises of the late Samuel V. Merrick, below’ Reed street.</p> <p>“ Henry G. Morris agrees to pay to William H. Merrick and John E. Cope, trading as aforesaid, and J. Vaughan Merrick, the sum of $480,000, in manner following: $40,000 on the 31st December 1870, on the delivery of the deeds and other instruments of writing above agreed to be executed, and the remaining $440,000 in ten annual instalments, with interest at six per cent., payable half yearly.</p> <p>In order to secure the payments thus agreed to be made, Henry G. Morris agrees to execute and deliver to William H. Merrick, John E. Cope and J. Vaughan Merrick, ‘ as tenants in common of • equal undivided interests, a purchase-money mortgage of all the real estate above mentioned, with the fixtures and appurtenances;’ the mortgage to be accompanied by three bonds and warrants of attorney, each for $146,666.66-|, payable in ten equal annual .instalments, with interest payable half yearly.</p> <p>“ Ilenry Gr. Morris agrees to purchase from William II. Merrick and John E. Cope, trading as aforesaid, all the stock of material, manufactured, unmanufactured, and in process of manufacture, at its fair market value, to be ascertained by the parties, or in case of dispute, .by a referee, mutually chosen, $40,000 of the price to be secured by his notes maturing in four months, and the balance by notes at twelve months after date, with interest on said balance.</p> <p>This agreement was acknowledged on the 81st October 1870, by all the parties, for the purpose of record, but does not appear to have been in fact recorded.</p> <p>The sale made by this agreement was carried into effect on the 31st December 1870, by the execution of the following papers :</p> <p>1. A deed was executed by the plaintiffs with their respective wives, to Ilenry G. Morris, in fee, for the real estate mentioned and described in the first and second articles.</p> <p>2. Two inventories of the machinery, tools and fixtures mentioned wrere signed by the parties. A bill of sale for these was executed by the plaintiffs to Ilenry G. Morris.</p> <p>3. Three bonds were executed by Henry G. Morris, one of them to each of the plaintiffs severally, for the payment of $146,666.66 each, in ten equal annual instalments, with interest thereon, payable half yearly.</p> <p>4. A mortgage to secure the payment of these bonds was executed bv Henry G. Morris to the plaintiffs, in the sum of $440,000.</p> <p>An inventory was also made of the manufactured and unmanufactured material, but was not completed until March 1871. It amounted to $74,492.67, which amount has been paid by Mr. Morris.</p> <p>The deed from the plaintiffs to Ilenry G. Morris conveys to him in fee, in consideration of $203,000, the large lot of ground, with the buildings and improvements thereon erected, bounded by Washington avenue, Fifth street, Federal street and Fourth street, subject to the yearly ground-rent of $6000, and also the lot, with the stable erected thereon, at the southeast corner of Fifth and Federal streets, subject to the yearly ground-rent of $36; “together with all the machinery, engines, boilers, railroad tracks and fixtures contained in, or appurtenant to, the premises first above described.”</p> <p>The first inventory, labelled “Buildings and Tools,” contains a list of machinery, consisting of planing machines, punching machines, cranes, oscillating, horizontal and vertical engines, drilling machines, &c. It also contains, at the end of the foregoing list, an inventory and valuation of buildings, enumerating the land and various buildings erected thereon, on each of which a value is placed, amounting in the aggregate to $285,600. On the last page of the book is the following memorandum : “ The foregoing inventory of machinery, fixed or appurtenant to the. premises, is hereby accepted as correct, unless the same he amended prior to the first day of February 1871.” This is signed by the plaintiffs and Henry G. Morris, and is dated December 31st 1870.</p> <p>The other inventory, labelled “ Tools and Fixtures,” contains scales, hydraulic jacks, jack'screws, &c., and a great many miscellaneous tools. It includes the tools in the fire-proof store-room on the second floor machine shop. It also includes a cast iron core oven, an overhead double-track railway, a large number of tool closets, a railroad track scale and two cart scales, located at the gates of the foundry, and some other articles which are attached to the freehold. It also includes horses, wagons, harness and various articles belonging to and in use in the stable. On the last page of this book is the following memorandum : “ The foregoing inventory of chattels, &c., is hereby accepted as correct, unless the same be amended prior to the first day of February 1871.” This is signed by the plaintiffs and Henry G. Morris, and is dated December 30th 1870.</p> <p>The bill of sale recites the purchase, by Mr. Morris, from the plaintiffs, of the Southwark Foundry, and that it is the intention of the parties that he should’“ receive and be vested with a good and perfect title in all and singular the property, chattels, machinery, tools, engines, fixtures, &c., used by the said firm in their business aforesaid, -and necessary or appurtenant thereto.” The consideration is stated to be the sum of $277,000, and for that consideration the plaintiffs bargain, sell, grant and confirm unto Henry G. Morris “.all the property, machinery, engines, fixtures, tools, goods, chattels, drawings, implements, appliances and other appurtenances whatsoever, owned, used and held by them in and about the engineering establishment known as the Southwark Foundry, and mentioned and expressed, or intended so to be, in two certain books of inventory of fixtures, tools, chattels, appliances, &c., lately made for the purposes of this sale, and signed at the end thereof, on the date hereof,” to hold the same to the said Henry G. Morris, his heirs, executors, administrators and assigns for ever.</p> <p>The mortgage from Mr. Morris to the plaintiffs, after reciting his execution of the three bonds or obligations to them severally for the sum of $146,666.66 each, witnessés, that in consideration of these three debts, amounting to $440,000, and for the better securing the payment thereof, with interest, to them, severally, he grants to them in fee the large lot of ground with the buildings and im-. provements thereon erected, and the smaller lot, with the stable erected thereon, subject to the ground-rents, “together with all the machinery, engines, boilers, railroad tracks. and fixtures contained in, or appurtenant to the premises first above described,” and recites that these are the same premises which they, “ by indenture bearing even date, but duly executed and acknowledged immediately before these presents, for the consideration-money therein mentioned, which is hereby secured,” granted and conveyed to him in fee.</p> <p>The master further finds that:</p> <p>“ The sale thus made to Mr. Morris by the plaintiffs was a sale of the Southwark Foundry as a unit for a gross sum of $480,000.</p> <p>“ No special estimate was made of the value of the different parts of the establishment, nor was there on the books of the plaintiffs any statement of the cost of the land, buildings and tools as separate items. There was an improvement account to which was charged everything which was added to the establishment from time to time, whether buildings, machinery, fixtures or tools, of whatever description. The entire cost of the establishment could thus be ascertained, but not the separate cost, nor the appreciation or depreciation in value of any of its separate parts. No attempt was made, in the negotiations for the sale, or in carrying it out, so fajas the evidence discloses, to place a value on any of the machinery, tools or fixtures. The valuations of the land and buildings in the inventory amounting to $285,500. are not connected in any way with the terms of sale, and differ from the consideration of $203,000 mentioned in the deed. This latter amount was fixed upon as the value of the ground and buildings, without anything else. The remainder of the purchase-money, $277,000, was represented by the. articles included in the two inventories, but in making the sale and purchase, the plaintiffs did not ask Mr. Morris, nor did he agree to0 give these, or any, separate prices for the land and buildings, and for the articles named in those inventories. The price was a round sum for the whole — $480,000 for the entire establishment, except the material and unfinished stock. There was no agreement to sell by inventory.</p> <p>“ Two of the inventories were made under the direction and management of Mr. llobert Briggs, who acted for Mr. Morris. Neither the plaintiffs, nor any one acting for them, took part in the1 making of these lists. They were made by Mr. Morris for his own convenience, information and security, and were accepted by the plaintiffs as correct at the time for all the property passing under the deed and mortgage.</p> <p>“ The other inventory, which included the stock of material and unfinished work, was, on the contrary, made by an agent of the plaintiffs. This was agreed to be purchased by inventoj-y, at a valuation to be ascertained and fixed, and to be paid for according to this valuation.</p> <p>“ Mr. Briggs had been manager for Messrs. Morris, Tasker & Co., of which firm Mr. Henry Gr. Morris had been a member, for about seven years. In the matter of this purchase of the Southwark Foundry, he acted as his friend and adviser, with the expectation of becoming manager of the foundry, and he did in fact act as its manager under Mr. Morris until the time of his failure. He had full knowledge of the negotiations for this purchase, and was consulted by Mr. Morris in those negotiations. He was called as a witness for the plaintiffs, and from his testimony the following facts appear: The purchase was made from the plaintiffs for a round sum, $480,000, with a kind of inventory, not a very perfect one. It included all the real estate fixed and attached to the property, everything upon the premises necessary to put the works into immediate use, all the workmen’s tools, the entire equipment of the establishment, and was described in certain deeds then given and in .a certain inventory or bill of sale. The inventory was incomplete and imperfectly made. Large quantities of material and fixed and quasi-fixed machinery were not named or described in it, but everything upon the premises was conveyed or intended to be sold and conveyed to Mr. Morris. Of the purchase-money, $40,000 was paid in cash; the balance of the $480,000 was to be paid in yearly instalments of $44,000 each, to be secured by bond and mortgage of the property sold and conveyed. As to this mortgage, it was understood between the parties that the mortgage should be made to cover, as far as possible, everything that was necessary for the . carrying on of the work in its regular way at the Southwark Foundry. The preparation of the papers was left to the legal advisers of the plaintiffs on this point, and they were assented to by Mr. Morris to cover what was necessary to carry on the works.</p> <p>“ One of the plaintiffs also testified that the understanding and agreement between them and Mr. Morris was that the mortgage should cover all the machinery, tools, &c., of different kinds, which were essentia] for carrying on the business, and which did not pass under the title of stock inventory and unfinished account; in other words, everything except what was contained in the inventory.</p> <p>“ Thirteen policies of insurance against fire, amounting to $78,000, which had been held by the plaintiffs, were on December 31st 1870, assigned by them to Mr. Morris, and they were then endorsed at his request by the agents of the several companies, ‘ Loss, if any, payable to Merrick & Sons, mortgagees.’ Another policy was taken out by Mr. Morris on October 20th 1871, for $10,000, and similarly endorsed to plaintiffs as mortgagees. These policies covered not merely the buildings, such as the erecting shop, machine shop, &c., but also the machinery, fixtures, patterns, tools, implements, shafting and belting contained therein. The premiums on all these policies were regularly paid by Mr. Morris up to the time of his failure.</p> <p>On, or prior to, the 29th April 1875, Mr. Morris became insolvent, and on that day executed to the defendant, Charles E. Morris, a general assignment of all his estate and property in trust for the benefit of his creditors. The assignee took possession, under this assignment, of the Southwark Foundry, with all its contents, and advertised for sale by public auction at the foundry on the 25th June 1875, a large number of the tools, implements and machines contained therein. The catalogues issued by the auctioneer embraced over 1100 items, many of which were, however, articles of finished work, lots of scrap iron and steel, office furniture and other articles which were manifestly personal property and not covered by or subject to the lien of plaintiff’s mortgage. These were, by the agreement of the parties, relieved from the effect of the injunction, and were afterwards sold by the assignee for the benefit of Mr. Morris’s creditors. Nearly 800 items of the catalogue have been in this way eliminated from the controversy, leaving over 800 items remaining in dispute between the parties.</p> <p>During the time that Mr. Morris was carrying on the business of the foundry he made alterations and improvements in some of the buildings, and introduced new machinery into the foundry, at a cost of §118,481.86. Much of this new machinery took the place of that formerly in use, and all of it was attached to the freehold except the portable drill presses, harness chains, core-oven carriages, transfer carriages, travelling crane and new truck for main track. The drill presses are operated by being fastened to fixed machinery, and the travelling crane wmighs fifty or sixty tons. The only portion of this new machinery which is included in the catalogue is the core-oven carriages, or some of them, but which of them the testimony leaves indefinite.</p> <p>The testimony of several experts was taken as to the character of the machinery, tools and implements claimed by the plaintiffs, and their necessity in or adaptation to the working of the foundry. It is not deemed necessary to refer here in detail to this testimony.</p> <p>After the bill in this case was filed, proceedings were instituted by the plaintiffs on their said mortgage, and under these proceedings the premises described in the mortgage were sold by the sheriff, and purchased by the plaintiffs at the sale for the sum of §291,000, and a deed therefor has been duly executed by the sheriff to them.</p> <p>The position of the plaintiffs is that all of the remaining articles of the catalogue of sale are covered by the mortgage, and conveyed by it to them as security for the unpaid purchase-money.</p> <p>The defendants contended that none of these articles, and indeed no article included in the inventories made by Briggs are covered by the mortgage.</p> <p>In support of these claims, the plaintiffs, on the one side, gave evidence to show that the articles claimed by them as mortgaged to them are essentially fixtures of the foundry, that many of them are parts of fixed machines, or constructed to be used by and in connection with fixed machinery; that others are made for special classes of work done by the establishment; that others, although tools used by the workmen, and unconnecti ;1 with fixed machinery, are of such a character that the foundry could not be carried on without them, or without making and substituting for them articles of the same kind and description; that others, such as patterns, flasks, drawing-boards and tables, and. trucks, are essential and necessary for such an establishment, without which the business could not be prosecuted or even started; that all of these articles are not only useful but requisite for the conducting of the business sold to Henry G. Morris by the plaintiffs; that if a majority of them were removed from the foundry it would be impracticable to execute a single order, and that while a few articles of a certain character might be removed without serious detriment, yet the removal of a few of the others would render it impossible to run the establishment for a single day.</p> <p>On the other hand, the defendants gave evidence to show that certain of the catalogued articles — namely, all such as are not physi- ■ cally fastened to the premises, or a necessary component part of some machine so attached to the premises, are not constituent parts of the Southwark Foundry; that while many of the other articles are absolutely essential to the running of the business of that foundry profitably and economically, -many others are not necessary 'for that purpose ; and that nearly all of the articles claimed by the plaintiffs could be removed, and yet the premises would be technically a foundry.</p> <p>The defendants also insisted that the deed, mortgage and bill of sale in evidence, plainly show the intention of the parties to have been to grant on the one part and mortgage on the other only the land, buildings and such fixtures as were permanently attached to the freehold; that they treated all else as personal chattels, not included in the deed or mortgage, by the execution of a bill of sale and their memoranda at the end of the inventories; and that no parol evidence can be considered which tends to vary the legal effect of these papers, nor can the agreement of sale be examined to ascertain the intention of the parties, as that was merged in the papers afterwards executed in pursuance of it.</p> <p>As to this the plaintiffs insisted that all 'the evidence given for the purpose of showing what the parties actually intended to accomplish by the execution of the papers is proper for consideration, and that this question of intention being an important one in determining this case, it is essential to a conclusion upon it to know not only what the parties did, but what they said in making their agreements and in executing the papers necessary to carry these agreements into effect.</p> <p>The questions of law were discussed at great length by the master, his findings, in brief, being as follows :</p> <p>“ 1. As respects the position of the parties. The fact that Henry G. Morris has made an assignment for the benefit of his creditors to the other defendant, Charles E. Morris, can have no effect on the rights of the plaintiff. The assignment is his own voluntary deed, to which they were neither parties nor privies. The assignee merely represents him, not the creditors. He stands ‘ on the foot’ of his assignor, is bound by his agreements, and is affected by all the equities which existed against the property in the hands of the assignor, enjoying his rights and no others : Twelves v. Williams, 3 Whart. 485; Vandyke v. Christ, 7 W. & S. 373; Mellon’s Appeal, 8 Casey 121. This case must therefore be considered as if it were simply between the plaintiffs on .the one side and Henry Gr. Morris on the other. In other words, it is a case between mortgagor and mortgagee.</p> <p>“ 2. As to the question whether the articles claimed by the plaintiffs are fixtures, irrespective of the evidence as to the intention of the parties to include them in the mortgage as security to the plaintiffs for the unpaid purchase-money. The articles claimed by the plaintiffs as included in their mortgage (with some slight exceptions) were placed by the owners in the various shops composing the Southwark Foundry for permanent and habitual use in the virork of that foundry, and very nearly all of them have been actually used in it. I can have no doubt of the intention with which they were placed here. Many of them were made especially for the purpose for which they are used. None of them were put there temporarily. All of them were intended to perform some part of the operations of the foundry, and the weight of the evidence is that the business there carried on cannot be carried on as it has been without them. One of the defendants’ experts, Mr. Longstreth, testified that if he were to purchase this foundry as a unit, for a lumping sum, with the intention of continuing the same business, he would expect to get from the vendors everything which they had in use while they conducted the business. There can be no question about the fact that every piece of machinery, implement and tool placed in this foundry was so placed with the intention that it should remain there and not be used for any purpose not in connection with the business of the foundry, so long as it answered, or could be made, by repair and otherwise, to answer the purpose designed.</p> <p>“ 3. As to the question of the intention of the parties to include the articles claimed by the plaintiffs in the mortgage executed to them as security for the unpaid purchase-money. It is not necessary in the present case to decide that the mortgage would, as against a judgment or execution-creditor of the mortgagor, be held valid for the benefit of the plaintiffs and to the extent claimed by them, for there is no such creditor to assert any rights against them. Here the question, as already said, arises between the original parties to the transaction, and the effect to be given to their agreement is not influenced by any considerations which might arise if other liens had been acquired, or the rights. of third parties had intervened. My conclusion from the evidence in this case is, that the parties intended and agreed to include in the mortgage which the plaintiffs should receive, as a security for the unpaid purchase-money, all the machinery, tools, implements and appliances contained and used in the foundry which they sold and conveyed to Mr. Morris, or in the words of Mr. Briggs, ‘ everything that was necessary for the carrying on of the work in its regular way at the Southwark Foundryand that this intention was carried into effect by Mr. Morris in the execution by him to the plaintiffs of the mortgage in question, which must in equity be taken, as against him and his assignee, to cover and include all these articles which he thus intended to convey to them as their security. Any other conclusion must, as it seems to me, be inequitable and unjust.”</p> <p>The master reported the form of a decree wherein the defendants were perpetually enjoined “ from selling or removing from the Southwark Foundry any of the machinery, fixtures or property mentioned in the catalogue of sale issued by the assignee,” except certain enumerated articles. And further ordered that the assignee pay the costs. A number of exceptions were filed to these findings which the court dismissed, and confirmed the report. The defendants then took this appeal, their numerous assignments of error being in brief, that the court erred in holding that the sale to Morris was a sale of the Southwark Foundry as a unit for a gross sum; in admitting the parol testimony to show what was covered by the mortgage; in deciding that it was the owners’ intention to annex the articles to the manufactory was the true test whether they were fixtures or not; in holding that the assignee cannot be permitted to deny that the land, buildings and fixtures mentioned-in the deed and mortgage were those of the Southwark Foundry ; in deciding that the bill of sale manifestly included things which were granted by the deed as real estate; in holding that certain enumerated articles are parts of the machinery necessary for carrying on the business of the Southwark Foundry, and therefore covered by the mortgage; in deciding that it was proper and necessary to look beyond the papers and instruments to ascertain the intent not to vary these instruments, but to reach the real meaning of those who executed them.</p> <p>In deciding that all of the items of the catalogue of sale, except certain articles numbered, are, by the agreement and intention of the parties to the said mortgage, part of the machinery and fixtures contained in and appurtenant to the premises first therein mentioned and described, and necessary for the carrying on of the business there conducted; that they were, according to that agreement and intention, conveyed to the plaintiffs by the said mortgage, as' security to them for the unpaid purchase-money, and that they must, therefore, in equity, be treated as included in said mortgage, and subject to its lien, and in not dissolving the injunction.</p>

2, of Philadelphia county: Of July Term 1878, No. 2. Scire facias sur mortgage by Henry Maitland against Henry M. Daly and others, executors of John Daly, deceased. The mortgage was for $14,000, dated May 6th 1871, for five years, between John Daly and Henry Maitland. John Daly having died before the commencement of the suit the writ was issued against the executors and trustees under his will after the maturity of the mortgage. The pleas were nil debet and payment.

<p>Appeal from the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1878, No. 27. In Equity.</p> <p>This was a bill in equity, filed by one Joseph E. Smith and Francis Jordan, “ and such others as agreeing to contribute to the expense of this suit, may become parties thereto,” against “James McCullough, John M. Melloy, George W. Plumley and John A. Franks, holding forth as members and officers, and acting under color of the name and style of the Humano Fire Company of the City and Liberties of Philadelphia, and also the Humane Fire Company of the City and Liberties of Philadelphia,” to recover two shares, to which they alleged themselves to be entitled as members in the property, real and personal, of the defendant corporation, which it was further set forth had in part been converted and divided among the other members thereof.</p> <p>The material portions of the bill will be found in the opinion of this court. The answer of the defendants denied that plain tiffs were members of the corporation. The case was referred to a master, who reported that Smith was a member of the corporation at the time of the above-mentioned distribution, and that he was entitled to a distributive share thereof, and made a decree that defendants should pay him $2713.38. The court dismissed the exceptions filed to this report and confirmed the same. From this decree this appeal was taken. It appearing that Jordan never was a member, the bill as to him was dismissed.</p>

<p>Appeal from the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1878, No. 213. In Equity.</p> <p>Bill in equity filed by the Girard Life. Insurance Annuity and Trust Company, against the City of Philadelphia and the Chief Engineer of the Water Department. The facts will be found fully stated in the opinion of this court.</p>

<p>Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1879, No. 3.</p> <p>Appeal of Thomas K. Peterson and Israel Peterson, surviving trustees under the will of John Peterson, deceased, from the decree of the court confirming the adjudication of the account of said appellants.</p> <p>John Peterson died December 27th 1855, leaving a will by which he devised all his estate, real, personal and mixed, unto Thomas K. Peterson, Israel Peterson and Edwin Mitchel, and to the survivors and survivor of them and to the heirs and assigns of such survivor in trust: first, for the payment of his debts ; secondly, for the payment of certain annuities to his wife and one of his daughters; and thirdly, for the payment to each of his other eight children of the income of one-eighth part of his residuary estate during their respective lives, with the privilege of obtaining certain loans out of the moneys of the estate, for which interest was to be charged by the trustees. As to the disposition of his estate after the death of his children the testator provided as follows:</p> <p>“ And from time to time as any of my said children, namely: the said Eliza W. Boyle (if she survive her husband and return to her family with her children, and to the Protestant faith, but not otherwise), the said Thomas K. Peterson, Israel Peterson, Alexander Peterson, Alfred Peterson, Francis Peterson, Mary Ann Mitchel, Jane Peyton, and John Howard Peterson, shall die leaving lawful issue, such issue, if under lawful age, shall be entitled to receive the interest and income of their parents’ share equally among them —if one, solely, and if more than one, in equal parts; and as they severally attain such lawful age, they are to receive and be paid their share and portion of the principal or capital fund of which their parent had received the interest, and income, the loan, if any, to such parent to be taken as part thereof; and those of my said children leaving lawful issue of lawful age, such issue shall receive and be paid the said principal or capital fund of which their parent had received the interest and income, such loan to be taken as a part, if one solely, and if more than one, equally among them. But in case any of my said children should die without leaving such lawful issue, then and in that case the share and part of such child so dying, as well the real as the personal estate, shall lapse and fall back into my estate and be divided among such of my said children as may be then living, and -the issue of such as may be dead, in the way and manner as I have directed in relation to their particular-share of my estate.</p> <p>“ And in order to enable my said trustees to pay off and settle any of the shares and portions of my estate which may from time to time become due and payable on the decease of any of my said children, it shall and may be lawful for them, my said trustees, to take any of the unappropriated funds of my said estate, or to sell any of my real estate for such purposes, and in order to arrive at the value of such share at the time of the decease of any such child or children, it shall be lawful for the said trustees, or the survivors or survivor of them,' with the child or children, if of full age, and the next friend or guardian of such as may be under age, mutually to choose a judicious and disinterested citizen, and these citizens, if an even number, to choose another, or in case they cannot agree upon such persons, then to apply to the judges of the Orphans’ Court to appoint such discreet and judicious persons, who, upon being duly qualified, shall ascertain the value of such share or portion, and in order to do so, they shall make a just and fair valuation of all the real and personal estate — that part which is subject to a life-estate shall be valued but not divided and paid until after the falling in of such life-estate — and upon such share being so ascertained and a due record thereof made or being confirmed by said court, any of my said children shall be at liberty to take the same at such valuation, the eldest male having the first choice and so on to the youngest, and if none of the males will take, then to be offered to the eldest female, and so on-to the youngest, and if none of them will accept thereof (my- meaning is that the part which my said children may elect to take as above mentioned, is that part w-hieh may be found necessary to be sold to raise a fund to pay off the share of the child arriving, at full age as above set forth), then and in such case the same shall be sold by my said trustees, or the survivors or survivor of them, who I also appoint executors hereof, at public sale to the highest and best bidder, any of my said children having the right to become purchasers thereof, such sale to be made in the same manner and on the like terms and conditions as I have hereinafter ordered and directed as to my estate generally, and with such funds to pay and satisfy'the person entitled to such share, his or-her portion thereof; and the like proceedings shall.be had as often as it may be required to ascertain and pay off such share or shares.”</p> <p>The testator then nominated the trustees above named to be executors of his will, and gave them full powers whenever they might deem it advantageous to his estate, or “ for the purpose of more easily making partition and division thereof among the parties interested,” to sell the whole or any part of his estate and to invest the proceeds or so much thereof as might not be required for the uses of his will in other real estate or in securities yielding income. He also gave them full powers of lease, repair and improvement of his real estate.</p> <p>John Howard Peterson, one of the children of testator, died intestate, on May 29th 1875, leaving a widow, Caroline E. Peterson (nowr Speakman) and one child, Carrie May Peterson, who after-wards died on November 21st 1877, a minor. ■ Edwin Mitchel, one of the trustees having died, the appellants, as surviving trustees, on January 29th 1878, filed their separate account in the Orphans’ Court of Philadelphia county. Mrs. Speakman, the appellee, appeared before the auditing judge and claimed, as next of kin to Carrie May Peterson, to receive the income of John Howard Peterson’s share of the estate accruing since the last payment to Carrie May Peterson, and also claimed the principal of said share. The auditing judge decided that letters of administration must be taken out on the estate of Carrie May Peterson, and awarded the accrued interest of John Howard Peterson’s share to such administrator. He also decreed that the principal of said share “be valued and paid unto the said administrator according to the will of the testator.”</p> <p>To this adjudication the trustees filed the following exceptions:</p> <p>1. The learned judge erred in deciding that Carrie May Peterson died seised of a fee in the share of testator’s real and personal estate, bequeathed and devised in trust for her father, J. Howard Peterson, for life.</p> <p>2. In deciding “that at the death of John Howard Peterson, his daughter, Carrie May Peterson, acquired an absolute vested interest in the share of the testator’s estate given to her, and that this interest was not divested by reason of her death under the age of twenty-one years; but that it passed, under the intestate law, to her mother as her next of kin.”</p> <p>3. In not deciding, that upon the death of Carrie May Peterson, a minor, her father’s share lapsed into the residuary estate of John Peterson.</p> <p>4. In deciding, that the will of John Peterson worked such a conversion of John Howard Peterson’s share, that the real estate unconverted at Carrie May Peterson’s death, passed as personalty to her mother.</p> <p>5. In awarding the share of John Howard Peterson in the real estate of testator, to the administrator of Carrie May Peterson.</p> <p>The court dismissed the exceptions and confirmed the adjudication from which decree the trustees took this appeal.</p>

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of July Term 1878, No. 42.</p> <p>Debt by William Greenough, individually, and as trustee for certain bondholders, against Simon P. Kase and Peter C. Thomson, on a bond given by defendants. The bond, a copy of which was filed, was for §1000, conditioned “ that if the said Simon P. Kase shall fail in his application to be made a defendant in the suit of William J. Greenough against the Danville, Hazelton and Wilkes-barre Kailroad Company, Columbia county, Common Pleas, Decernber Term. 1877, No. .3, in. equity, then we will pay the costs attending the proceedings, before Samuel Dickson, Esq., the master in said shit, including the master’s fee.”</p> <p>Filed' with this bond was a copy of the decree of the court dismissing the .petition of Kase to be made a defendant, and making the following order: — •</p> <p>“ Upon consultation with the counsel for and against the petition, as to the reasonableness of the fee charged by the master, it is ordered and adjudged that the said fee be, and the same is hereby allowed at the sum of $1000, including amount paid or to be paid by the master for the services of a short-hand writer in taking and printing,the testimony.”</p> <p>The defendant filed an affidavit of defence wherein it was, inter alia, averred that, “ deponent is advised, and so suggests, that the paper filed does not entitle the plaintiff to judgment for want of an affidavit of defence, the same being conditioned for the payment of costs, and not for any .determined and specific sum of money.</p> <p>“ Deponent is advised, and so suggests, that the said court had no power to order deponent to execute such a bond as the paper sued on, as a condition of deponent’s being allowed to take testimony in support of his said application. And deponent is advised that said order of said court .was illegal, and that said bond is void.</p> <p>“ Deponent further saith that said bond is conditioned for the payment of the master’s fee, in the event of deponent’s failure in his said application, but deponent avers that the said master has never presented any bill for his said fee, nor made any claim upon deponent for the same.</p> <p>“ Deponent further saith that no averments have been filed with said bond showing the amount .due thereon, and that the amount of deponent’s liability thereunder is not certain or determined.”</p> <p>The court entered judgment for want of a sufficient affidavit of defence, when defendants took this writ and assigned this action for error.</p>

<p>Error to the Court of Common Pleas, No. 2, of Philadelphia■ county: Of July Term 1878, No. 6.</p> <p>Case by Margaret ■Killips, the widow of Hugh Killips, and by George and Isabella Killips, his father and mother, to recover damages for the death of said Hugh Killips, alleged to have been caused by the defendant’s negligence.</p> <p>The narr. contained two counts. The first alleged that defendant was engaged in managing a railroad and propelling cars' along Ninth street, in Philadelphia, at and near Columbia avenue; that Hugh Killips, the husband and son of plaintiffs, was riding along said avenue, and that as he approached on said avenue defendant was propelling a train along Ninth street, but that defendant’s servants made such great noises and shrieks, by blowing the whistle on the engine, that the horse of said Killips was frightened and ran'off, and that thereby he was thrown out and so injured that he afterwards died.</p> <p>The' second count alleged that defendant’s servants did, by their negligence, startle, scare and frighten a horse which Killips was driving along Columbia avenue, whereby, &c.</p> <p>- Defendants pleaded “Not guilty.”</p> <p>On the trial before Hare, P. J., it appeared that on May 6th 1875, about 7 o’clock in the evening, deceased, with two companions, was driving in a one-horse wagon down Columbia avenue, going east towards Ninth street.</p> <p>In April 1875, at the request of the Union Passenger Railway Company^'whose track is laid on Columbia avenue in this city, and by an arrangement between that company and-the defendant in this suit, a- gate was erected at the crossing of Columbia avenue, over Ninth street, at the joint expense of the two companies. The gate was at the bottom of an incline upon Columbia avenue, and its object was to stop the passenger railway cars in case they could not stop themselves by their brakes. This gate was operated by the defendant, and from the time it was first put in use, April 14th 1875, until November 18th 1875, was operated between the hours of 6 a. m. and 7 p. M., by the flagman stationed at the crossing. At the'latter hour, when, according to the rules of the defendant, the hours of duty of all its flagmen upon Ninth street ended, the gate was locked parallel with Columbia avenue, and left open during the night.</p> <p>It was not shown that there was any ordinance of the city making it the duty of the company to keep the gate at this point. The flagman had at 7 o’clock opened the gate for the. night and locked it. There is a large factory at the northwest corner of the crossing, which obstructs the view of the railroad from the west when looking towards the north. The view is unobstructed from Columbia avenue looking south. Shortly after the gatekeeper left, on the night of the accident, the deceased and his companions drove down towards the crossing, and stopped on Tenth street to observe whether a train was approaching. Hearing no bell or other warning they proceeded slowly down towards the crossing and when within thirty feet of it an engine suddenly appeared, and the whistle being blown, as it was alleged, the horse became frightened and reared up on the gate and the deceased was thrown out with such violence that ho died from the injury received a few days thereafter.</p> <p>It was daylight, and Killips and his companions knew of the gate and the purpose for which it was used. There was a conflict of testimony in regard to the blowing of the whistle of the engine, the material portions of which are stated in the opinion of this court. The plaintiff'’s witnesses all alleged that a whistle was blown two or three times by the engine, some of them going so far as to. say it was blown wilfully, for the purpose of frightening Killips’s horse, and that the horse was frightened by the whistle. The defendant denied this, and called witnesses to show that no whistle at all was blown, but that Killips’s horse was frightened by some barrels and whitewashed boards, which had been placed on Columbia avenue, between Ninth and Tenth streets, to guard a trench in that street.</p> <p>It was not alleged that the train was negligently managed other than in blowing the whistle. It was a violation of the orders of of the company to blow a whistle from Diamond street, a point beyond where the accident occurred, except in case of danger to persons upon the track.</p> <p>The court affirmed the following points submitted by defendant:</p> <p>1. That the defendants being authorized, to use steam-engines upon their railroad on Ninth street, in this city, are not responsible for accidents arising from horses being frightened by the noises properly incident to the employment of such engines, or by sight of the engines.</p> <p>3. That the servants of a railroad company cannot be taken and found by a jury to have been negligent from the mere fact of sounding a whistle upon an engine in the ordinary way. Sounding a whistle, in order to amount to negligence, must have been of an extraordinary character. Although, therefore, even should the jury believe that a whistle was blown upon the engine upon defendant’s road, and that Hugh Killips’s horse was frightened thereby, the plaintiffs are not entitled to recover, unless the jury also believe from the evidence that the whistle then blown was of an extraordinary and unnecessary character.</p> <p>4. If the jury should believe that the engineer upon the loeomotive blew the whistle for the purpose only and with the intention of frightening .Killips’s horse, the defendant would not be .liable for such an act, and.plaintiffs cannot recover upon that, ground.</p> <p>The other pointsof defendant, with the answers of the court, were as follows: . . •</p> <p>2. That unless the jury believe from the evidence that the defendent’s servants in charge of the engine, which crossed Columbia avenue upon the evening, of May 6th 1875, were exercising their right to use and move such engine in an .extraordinary way and without due and reasonable care, no negligence can be-imputed to them in this respect, and although the jury may believe that the horse behind which Hugh Killips was riding was frightened by the sight or noise of the train approaching in the ordinary way, and that in consequence of such fright the wagon was upset and ICillips killed, the plaintiffs cannot recover.</p> <p>Ans. “ I affirm that point, so far as regards the engine itself; that is, an engine used in the ordinary way. At the same time it does not preclude the jury from determining whether the company was negligent in leaving the gate open and fastened back and without a watchman, although at the times prescribed by. the rules of the railroad company.”</p> <p>5. That there is no ■ positive duty upon a railroad company to place flagmen or to erect and tend gates at public crossings, or to keep flagmen standing at or to tend such gates at all' hours of the day and night. Although, therefore, a gate had been erected .by the railroad company at Ninth and Columbia avenue, .and a flagman was stationed there in the daytime, if the jury.believe that the accident in question occurred after the flagman had left for the day and had fastened the gate open for the night, the absence of the flagman and the fact that the gate was open are not evidence of negligence upon the part of the defendant, and the plaintiffs cannot recover upon the ground thereof.</p> <p>Ans. “ Refused.”</p> <p>■ 6. That the evidence in this case does not show that the .facts that .the gate at Ninth and Columbia avenue was open and that there was no watchman there caused the accident in question, and the same are therefore irrelevant and should not be considered by the jury.</p> <p>Ans. “Refused.”</p> <p>• 7. That if the jury believe that the whistle was not blown .at all upon the engine crossing Columbia avenue, upon the evening of May 6th 1875, there can be no recovery against the defendants.</p> <p>Ans. “Refused.”</p> <p>. 8. That there is no sufficient evidence of negligence upon the part of the defendant’s servants, and your verdict should be for the defendants.</p> <p>Ans. “Refused.”</p> <p>The verdict was for plaintiffs for $4500, and after judgment defendant took this writ and assigned for error the above answers to the second, fifth, sixth, seventh and eighth points.</p>

<p>Appeal from the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1878, No. 24.</p> <p>Appeal of J. Dyer Dungan from the decree of the court sustaining the exceptions to the report of the auditor appointed to distribute the proceeds of the sheriff’s sale of certain real estate sold under a judgment obtained by Dungan against George Mountjoy.</p> <p>The judgment of Dungan was obtained September 6th 1875, for $898.76. On February 3d 1877 a writ of fieri facias was issued, and levy made on eleven houses as the property of said Mountjoy. March 13th 1877, a writ of venditioni exponas was issued, under which the said property was sold, on April 2d 1877, to Levi Harring, for $900,- which money was paid into court for distribution. Before the auditor the proceeds were claimed by the execution-creditor, and by the city of Philadelphia for the current taxes for the year 1877. Levi Harring also appeared before the auditor and claimed to have the proceeds applied to the payment of the taxes.</p> <p>The admitted facts found by the auditor are as follows:</p> <p>On June 19th 1876, the premises wrere conveyed by Joseph Singerly to one George G. Mann, in pursuance of a verbal agreement between Mann and George Mountjoy, the defendant in the execution. Mountjoy was insolvent at the time, and had judgments recorded against him to a large amount. Mann was named by Mountjoy as the person to take the title, and who would execute the mortgages for the purchase-money and advances. Mountjoy was to have the net profit of the transaction, and Mann had no interest, except as a trustee or depositary of the legal title for Mountjoy. The operation subsequently broke down, and all hope of profit was-abandoned, when, on December 29th 1876, Mann, with the consent of Mountjoy, and at the request of Singerly, conveyed the premises to Levi Harring, who subsequently purchased at the sheriff’s sale. The auditor found as a fact that George Mountjoy (the defendant in the execution) had no interest whatever in the premises, legal or equitable, at the time of the issuing of the execution, or at the time the taxes were assessed against the property, or at-the date of the sheriff’s sale, and awarded the fund to the execution-creditor.</p> <p>Exceptions were filed by the City of Philadelphia and by Levi Ilarring, which were sustained by the court, and the fund was awarded to the city on account of the taxes for the year 1877.</p> <p>This action of the court was assigned as error.</p>

<p>Error to the Court of Common Picas, No. 3, of Philadelphia county: Of July Term 1878, No. 36.</p> <p>Debt by Thomas Seabrook against Michael Moyer to recover the rent of certain promises leased to defendant.</p> <p>There were two counts in the narr., one on a demise at $250 a month and another for use and occupation. The defendant pleaded nil debet and payment, and specially, that he had been evicted from an alley-way, a portion of said premises.</p> <p>The court, Fell, J., ordered a nonsuit, which the court in banc refused to take off, which was assigned for error. The remaining facts will be found in the opinion of this court.</p>

1, of Philadelphia county: Of January Term 1879, No. 67. Assumpsit by William Bardsley against Allen Delp, on a promissory note made by Delp to the order of one Barndt, and by the latter endorsed to plaintiff.

1, of Philadelphia county: Of January Term 1879, No; 47. This was an action of partition, brought by Thomas Benton Yoilng against William J. Mclntire and others. Under the will of William J. Young, deceased, Thomas Benton and his four sisters, Sarah, Josephine, Mary A. and Emma, took a vested remainder in fee, subject to a life-estate in their mother and the unmarried daughters.

3, .of Philadelphia county: Of July Term 1878, Nos. 61 and 62. Held: there would be no reason why private owners of land above and below grade should not be exempted. “Rule made absolute.” The railroad company took this writ and assigned this action for error.

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia, county: Of July Term 1878, No. 133.</p> <p>This was a proceeding by the Commomvealth ex rel. George N. Watson, to escheat an estate, formerly the property of Cecilia Erben, in the possession of William E. Naile, trustee under the will of Henry Sell.</p> <p>The inquisition filed showed that a jury of inquest, duly summoned, found “ that Cecilia Erben, late of the city of Philadelphia aforesaid, died in 1852, intestate, without heirs or any known kindred, and that she was possessed at the time of her decease of the following personal estate, to wit: a vested interest in remainder in the one-seventh part of the residue of the estate of Henry Sell, deceased, which interest became vested in possession about June 1876, and that the said personal estate is in the possession or custody of William E. Naile, trustee under the will of the said Henry Sell, deceased.”</p> <p>The defendant, William E. Naile, trustee under the will of Henry Sell, filed a traverse to this inquisition, in which all the facts found by the jury were admitted, but the right of the Commonwealth to an escheat was contested upon the following grounds:</p> <p>1. Because more than twenty-one years elapsed since the death of the said Cecilia Erben before the commencement of any proceeding or inquisition for an escheat, whereby the Commonwealth has become debarred from claiming the said property as escheated, according to the Act of Assembly of 16th December 1869.</p> <p>2. Because there is no adequate provision made by law for the escheat of said property, the same being an interest held in remainder.</p> <p>3. Because there is no adequate provision made by law for the escheat of said property, the same being an interest held in trust.</p> <p>The case coming on for trial, a verdict was rendered for the Commonwealth, subject to the opinion of the court whether, upon the facts as admitted, the Commonwealth was entitled to judgment. These facts will be found fully stated in the opinion of this court. The court below, Biddle, J., subsequently entered judgment for the defendant upon the reserved point, non obstante veredicto. This action was assigned fo,r error by the Commonwealth, which took this writ.</p>

<p>Appeal from the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1879, No. 31. In Equity.</p> <p>This was a bill in equity filed by Peter 0. Hollis, surviving executor of Levi Dickson, against the Spring Garden Insurance Company and Edwin and Mary L. Rafsnyder. From the bill and answer it appeared that one Reinstein had perpetually insured certain houses in the defendant company, which houses had been mortgaged to one Altemus and the policies transferred to him as collateral security. These policies contained the following conditions :</p> <p>“ In all eases of sale of the property insured, where the policy is not transferred, the deposit money may be withdrawn by the depositor or his legal representatives, if applied for within sixty days after such sale, subject to a deduction of ten per centum; but if not applied for within that time, the said deposit money shall bo considered as sunk for the benefit of the company.”</p> <p>“ Mortgagees and others to whom any policy shall have been transferred as collateral security, cannot withdraw the deposit money on such policy.”</p> <p>Reinstein conveyed the houses to Mrs. Rafsnyder and gave her an assignment of the policies. Altemus assigned the mortgages and policies to Hollis, the plaintiff, who obtained judgment on writs of scire facias,, and the properties were sold by the sheriff for an amount which did not satisfy the mortgage debt. The bill prayed that the insurance company be decreed to pay to plaintiff the'deposited premiums less ten per cent., and offered to surrender the policies on payment of the money. Mrs. Rafsnyder, who was made a, party to the bill, also claimed these premiums. After argument upon bill and answer the court, Hare, P. J., delivered the following opinion :</p> <p>“ Reinstein insured certain houses which had been mortgaged to Alternáis, and transferred the policies to the mortgagee as a collateral security. He then conveyed the houses to Mary L. Rafsnyder, and she also received from him an assignment of the policies. The mortgages and policies were subsequently assigned by Altemus to the plaintiffs, who issued writs of scire facias which were prosecuted to judgment, and the mortgaged premises sold by the sheriff for an amount which did not satisfy the debt. The question before us is, who is entitled to the premium or deposit which was the consideration for the insurance ?</p> <p>“ The fund in controversy is claimed by the plaintiffs as the assignees of the policies and of the bonds and mortgagees which the policies were assigned to secure, by Mary L. Rafsnyder as the purchaser of the premises covered by the insurance; and finally by the Spring Garden Insurance Company, who, while alleging that her right is better than the plaintiffs’, ask to set off a demand against her growing out of an independent transaction.</p> <p>“ It results from what has been said that the controversy turns on the following point: Is a mortgagee, to whom a permanent insurance has been assigned as a security, entitled to the premium on a sale being made of the mortgaged premises which puts an end to his insurable interest and to that of the mortgagor ? There can be little doubt that the inquiry should receive an affirmative reply. It is well settled that an assignment carries with it every incident or accessory which is essential to the use or enjoyment of the thing transferred, or that will conduce to the attainment of the end which the parties have in view ; but the case before us hardly stands in need of this principle, because the right to rescind a contract and recover back the consideration is as much a part of the contract as the right to the amount which will be due if the contract goes into effect, and may equally well be exercised by one to. whom the contract is assigned.</p> <p>“ The soundness of this reasoning was virtually conceded during the argument, but it was alleged to be inapplicable to [the case in hand. Agreeably to the view taken for the defence, the assignment under which the plaintiffs claim, was designed to indemnify them as mortgagees against loss by fire, and their right under it ceased when the lien of the mortgage was divested by the sheriff’s sale. This argument might be entirely just if the insurance were of their interest as mortgagees, or if an insurance effected by a mortgagor became an insurance of the mortgage on being transferred to the mortgagee. It is, however, clear on authority and principle, that such a transfer does not alter the effect or nature of the policy, which remains as it was at first an insurance of the mortgagor’s estate as the equitable owner of the premises, and that what the mortgagee acquires is not an interest in the insurance as such, but a right to appropriate the amount which may become due under the contract, to the payment of the mortgage debt. See The State Ins. Co. v. Roberts, 7 Casey 438; Carpenter v. The Washington Ins. Co., 16 Pet. 495, 512; Conover v. The Atlantic Ins. Co., 17 N. Y. 391; Macomber v. The Ins. Co., 8 Cush. 133; Hale v. The Mechanics’ Ins. Co., 6 Gray 169. In other words the transfer is made to him as creditor as well as mortgagee, and the effect is nearly if not quite the same as if he were merely an obligee, and had no specific lien. Hence an assignment of a policy of insurance as collateral security for a bond and mortgage will not be invalidated by the discharge of the mortgage lien, so long as the bond remains and is unpaid ; and if this is true as between the assignor and assignee it must be equally so. of one claiming by virtue of a subsequent assignment.</p> <p>“ It is no small argument in favor of the conclusion above indicated that it does exact justice among all the parties who have any right or title to the fund in dispute. The money is not only paid to the plaintiffs on account of the amount confessedly due to them on the bond, but it will go to discharge the liability which Reinstein and Mary L. Rafsnyder incurred by buying £ under and subject to’ the mortgage. Parties who deal with each other on a common basis, or in a matter in which all are interested, may reasonably be supposed to intend that the fruits of the transaction shall be appropriated in a way to be mutually beneficial, rather than to a purpose in which one or more of them are not concerned; and when there is no countervailing reason a court of equity will be guided by this presumption in distributing the fund. Such is the principle on which securities in the hands of the creditor are used to exonerate the surety, and those held by the surety to pay the debt; and it applies a fortiori in the present instance where the motive for depositing the premium was to secure the mortgagee, as well as to indemnify the owner of the premises, and here both objects are accomplished by awarding the money to the plaintiffs.</p> <p>££ Relief is decreed in accordance with the prayer of the bill.</p> <p>“ And now, September 28th 1878, this cause having been argued by counsel upon bill and answer, it is decreed by the court:</p> <p>££ 1. That The Spring Garden Insurance Company pay to Peter C. Hollis, surviving executor of Levi Dickson, deceased, the amount of the premium of the policies of insurance mentioned in the pleadings, less ten per cent., viz.: $252, with interest from January 1st 1877.</p> <p>“ 2. That the defendant pay the costs pf this suit.”</p> <p>The defendants assigned this decree for error.</p>

<p>Appeals from the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1878, Nos. 11 and 12.</p> <p>Appeals of Abraham Ritter and Samuel P. Ferree, administrators of James B. Ferree, deceased, from the decree of the court dismissing the exceptions to and confirming the report of the auditor appointed to distribute the fund arising from a sheriff’s sale of real estate.</p> <p>Hannah R. Vogdes, sole executrix of John R. Vogdes, deceased, entered a judgment against James B. Ferree on a warrant of attorney annexed to a bond accompanying a mortgage secured on a lot of ground in the Twenty-fourth ward of the city of Philadelphia, and sold the same at sheriff’s sale, by virtue of proceedings had on this judgment. A portion of the proceeds of this sale were paid into court and an auditor appointed to distribute the same.</p> <p>These appeals are from the distribution ordered by the court of this fund.</p> <p>The other material facts will be found in the following opinion of Elcock, J., in the court below:</p> <p>“ The fund for distribution by the auditor was raised from sale by the sheriff under our writ, of certain real property, situate on Sycamore street, formerly called Silverton avenue, West Philadelphia. A claim was presented before the auditor by the city of Philadelphia to the use of William A: Shipps, against the defendant, amounting to $1194.57, for. the cost of paving the highway with rubble pavement in front of the property sold.</p> <p>“ The work was done under authority of an ordinance, approved December 15th 1874, which directs the chief commissioner of highways to enter into a contract with a competent paver for the paving of, inter alia, said streets, but requires no preliminary act upon the part of the chief commissioner or any one else.</p> <p>“ The auditor has refused to allow the claim, upon the ground that there was no preliminary advertisement before the awarding of the contract to said William A. Shipps, as required by the ordinance, approved December 31st 1862, which is as follows:</p> <p>“ ‘ Hereafter, before any contract for paving any street or streets shall be entered into by the highway department, the person or persons applying for such contract shall give notice of such application in two daily papers having the largest circulation, by three consecutive insertions, at least two weeks prior to the making of, such application ; such notice to set forth:</p> <p>£££1. The name of the contractor or contractors.</p> <p>££ ‘ 2. The locality of the space or spaces intended to be paved, with the length of such space in lineal feet.</p> <p>££ £ 8. The name and residence of each person signing for contractor, together with the number of feet owned or represented by each person so signing fronting on said streets.</p> <p>“ £4. To such notice shall be added an invitation to the owners of property to meet at the department of highways, at a certain hour on a given day, to show cause, if any, why such contract should not be awarded to the applicant.’</p> <p>“The important question now raised is, whether this ordinance was not repealed by the ordinance reorganizing the highway department, approved December 23d 1874.</p> <p>“By section 2 of that ordinance, ‘from and after January 1st 1875, the building and repairing of all bridges, culverts, sewers and inlets, the opening, grading, curbing, paving, repaving and repairing of all streets, roads, lanes, alleys and other highways of the city of Philadelphia, shall be under the' control, supervision and management of the chief commissioner of highways of said city.’</p> <p>“By section 10 the owners of property desiring to have the streets which shall pass through their property paved, shall apply to councils by petition, to which shall be attached a certificate of the district surveyor, that the petitioners are a majority of the owners of property between the points named. After an ordinance shall be passed for the paving of any street, it shall be the duty of the chief commissioner to award the contract for the same to a practical paver or pavers, regularly engaged in such business, and known to bo such: Provided, the security for the same shall be the same as is now' regulated by Act of Assembly : Provided, that any contractor failing to perform his work in accordance with the terms of his contract, shall be deemed a defaulter, and no bid shall thereafter bo received from, or contract awarded to, such defaulting contractor.</p> <p>“And by section 11, all ordinances or parts of ordinances, inconsistent herewith, be and the same are hereby repealed.</p> <p>“ The object of the ordinance of 1862 was to secure a competent paver to do the work, instead of awarding it to some person who might bid low enough in price, but be utterly ignorant of the mode of performing the work or of the materials to be used in it.</p> <p>“The necessity for the advertising under the ordinance of 1862 is therefore done away with, when, under the ordinance of 1874, it is made the duty of the chief commissioner to award the contract to a practical paver or pavers, regularly engaged in such business, and known to be such. And further, the alleged important facts stated in the ordinance of 1862 (much of it repealed by an ordinance of March 24th 1871), made necessary to advertise, are by the ordinance of 1874, directed to be set forth in the certificate of the district surveyor, which shall be attached to the petition to be presented to councils. *</p> <p>“The ordinance of 1874 therefore takes away from the property owners any choice in the selection of a contractor, and vests all power in the chief commissioner, who may enter into a contract immediately after the approval of the ordinance. Then why advertise under the form directed in the ordinance of 1862 ? It creates a new system of awarding contracts; directs by whom they shall be awarded, to whom as a particular class they shall be awarded, and the facts which petitioners for paving streets must lay before councils, where councils do not act of their own motion. It accomplishes the same object as the ordinances of 1862 by a different method.</p> <p>“ The inconsistency and repugnancy of the ordinance of 1862 to that of 1874, may be instanced where a contract had been awarded by the chief commissioner, since January 1875, to some competent paver, who immediately sets to work under his contract, and perhaps completes it in ten days. The contract having been awarded him, it would be an extraordinary rule of law to require him to advertise in the form of vthe ordinance of 1862, to notify property owners to assemble and show cause, within two weeks from the approval of the ordinance, why his contract should not be awarded him. It can hardly be supposed that after the contract had been awarded that any one else would be so frenzied in the support of any two newspapers as to invest money in any such advertisement; whilst the meeting of property owners, without aim or power, would be without cause to show.</p> <p>“We think there cannot be a clearer repeal of a precedent affirmative statute. There is such clear legislative intention shown in the words of the 'later ordinance to repeal the former that it comes within the rule of interpretation of statutes as ‘clearly repugnant and inconsistent.’</p> <p>“The case of City v. Fell, 81 P. F. Smith 58, has been strongly relied upon by the learned auditor, but, under the present views we take of the ordinance of 1862, it can have little application, as that. case was tried before the passage of the ordinance of 1874, and the work performed in 1870 ; besides, the work was performed under a special ordinance, the non-compliance with the terms of which destroyed the claim for the work.</p> <p>“ To maintain the doctrine ruled against this claim would produce intense hardship, for every contract, awarded for paving of streets in Philadelphia since January 1875, has been awarded in the view of the repeal of the ordinance of 1862; and to at one blow destroy every lien and annul every contract thus entered into, notwithstanding the work was honestly done, would be paving the way to a repudiation most immoral and terrible in extent. Solus popiili suprema lex.</p> <p>“ The exceptions are sustained, and the report is referred hack to the auditor for redistribution, in accordance with this decision.”</p>

<p>A. filed a copy of original entries, wherein the charges were made against B. individually. In an affidavit of defence B. averred that the goods were purchased by a partnership, consisting of 0. and himself. The court allowed the record to be amended by inserting the name of 0. as a co-defendant, but no alias summons issued to bring 0. into court. The court then entered judgment for want of a sufficient affidavit of defence. Held, that this was error, that no such judgment could be entered against either or both defendants until 0. had been brought into court, by an alias summons, to which there had been a return either of served or non est inventus.</p> <p>Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of July Term 1878, No. 139.</p> <p>Assumpsit by Thomas Bradley against J. H. Dusenberry, to recover for goods sold by plaintiff to defendant.</p> <p>The plaintiff filed a copy of original entries, wherein the charges for certain goods were made against J. H. Dusenberry. In an affidavit of defence, it was alleged that the goods had been sold to the firm of Dusenberry & Murphy, and not to Dusenberry individually.</p> <p>The court allowed the plaintiff to amend by adding the name of George Murphy as a co-defendant. The plaintiff then entered a rule for judgment, for want of a sufficient affidavit of defence, which the court made absolute. No summons issued to bring Murphy into court.</p> <p>The entry of judgment was assigned for error by defendant, who took this writ.</p>

<p>Jhe °lause in a deed of conveyance “ under and subject,” to a mortgage or other encumbrance, is a covenant of indemnity only as between grantor grantee for the protection of the former, unless-there is an express agreement to pay the encumbrance, or an agreement can be implied from the circumstances.</p> <p>2. The words “ under and subject” import that the vendee takes the land encumbered, and, at most, that on taking it an agreed consideration, which includes the encumbrance, he will indemnify the vendor to the extent of that consideration, in the same manner as if it had been paid in cash and so applied at the time.</p>

<p>An action for damages will not lie for the obstruction of a right of way, alleged to have arisen from an implied covenant contained in a reference in a deed to a street as a boundary, where possession of such street was never given or taken under the deed, and the owner had built thereon and had exclusive possession thereof for more than twenty-one years before suit brought, without any denial of title.</p>

<p>1. Where certain instruments of writing are not required by law to be recorded in a particular book, they may be recorded in any book kept by the recorder; and a building contract is valid although recorded in a deed-book.</p> <p>2. The Act of April 3d 1872 provides that every building erected under a written contract should be liable to the contractor alone for the work done and materials furnished, provided that such contract was duly recorded within fifteen days of its execution. In a scire facias upon a mechanics’ lien against the owner, the defendant gave in evidence such a contract recorded in the deed-book. It was also admitted that there were certain specifications in the contract which were neither offered in evidence nor recorded. Held, that the plaintiff not being a party to the contract, and it. being offered to establish the immunity of the defendant under the statute, the production of the specifications was not essential; that the recording of the contract itself without these specifications was sufficient, and that it was not improper to record the contract'in the deed-book.</p> <p>3. The court below directed a verdict for defendant, subject to a reserved point. The court in banc afterwards entered judgment for the plaintiff on the point reserved, non obstante veredicto. Held, that the more correct practice was to direct a verdict for the plaintiff, as a judgment could not be entered upon a reserved point for plaintiff where the verdict was for defendant.</p>

4, of Philadelphia county: Of January Term 1878, No. 273. Held: and. for which the defendant’s grantor, Brownfield, was then responsible, upon his previous covenant to Keller, as well as to the Spring Garden Building Association, No. 2, who were owners of the mortgage debt at the time of Brownfield’s covenant with Keller, and who as such owners might have sued him for the debt in pursuance of the…

<p>1. In Pennsylvania the rules of the common law regarding the devolution of property described in lapsed devises and bequests are in full force. Under these rules real estate, the devise of which has lapsed, descends to the heirs-at-law, and forms no part of a residuary estate created by a testator’s will, except where a special intent to the contrary is manifest. On the other hand, personal property, where a legacy has lapsed, falls into the residuary estate.</p> <p>2. The Act of April 8th 1833 has not changed these common-law rules in regard to lapsed devises and bequests,</p> <p>3. Patterson v. Swallow, 8 Wright 490, and Yard v. Murray, 5 Norris 113, explained.</p>

<p>1. Where an administrator, pursuant to an order of the Orphans’ Court, has paid over money to a distributee, he will be protected against loss if the</p> <p>•court should subsequently open and change the decree. Stewart’s Appeal, 5 Norris 149, followed.</p> <p>2. Where voluntary payments have been made by an administrator, and there is a subsequent decree in favor of the person to whom they were made, the administrator will be protected thereby.</p>

<p>Appeal from the Orphans’ Court of Philadelphia county: Of July Term 1878, No. 84.</p> <p>The proceedings in this case were as follows: Lewis Ryan, the testator, died on the 23d of June 1850, leaving a will, by which certain trusts were created. The original trustees having died, Robert L. Reilly‘was appointed sole trustee, thereunder, on March 6th-1877. The time having arrived for the- distribution of the whole estate, Reilly, the trustee, filed his first and final account in the Orphans’ Court, reporting $44,910.09 for distribution. No objection was raised to the account, and the only point of dispute was as to the proper mode of distribution which depended upon the construction to be given to one clause of Lewis Ryan’s will.</p> <p>The names of the parties appellant were Mrs. Mary Reilly, Martha Reilly, Anne Reilly, Mrs. Catherine Castner and H. Castner, Esq., her husband, :in the right of the said Catherine and Robert L. Reilly. These are all children of the testator’s daughter Catherine, who pre-deceased him.</p> <p>The names of the parties appellees were Veronica Smith, Ffinnie F. Smith, Philip L. Smith, Daniel Smith, James N. Smith and Clement J. Smith, all of whom are children of the testator’s daughter, the late Mrs. V. J. Smith.</p> <p>There was no petition or answer. When the trustee filed this account in the Orphans’ Court, showing a balance for final distribution, the parties all consented that it should be at once referred to N. Dubois Miller, Esq., as auditor, to settle and adjust the same, and report a scheme of distribution. The auditor, inter alia, reported: Lewis Ryan, the testator, died Juno 23d 1850, leaving a will, and leaving surviving him three daughters, Martha M. T., Ann E., and Mary V. J., wife of James M. Smith, and five grandchildren, Mary, Martha, Anne, Robert L. and Catherine, children of his deceased daughter Catherine, wife of Philip Reilly. Miss Martha M. T. Ryan died October 14th 1865, unmarried, leaving a will. Mrs. M. V. J. Smith, died April 2d 1876, leaving a will and six children, James M., Philip, Edwin, Fanny, Clement J. and Veronica, all of whom had boon born before the death of Lewis Ryan. Miss Ann E. Ryan, died July 20th 1876, unmarried, leaving a will.</p> <p>By his will, the testator, Lewis Ryan, bequeathed and devised his estate, after one or two specific legacies, as follows:—</p> <p>u 4. All the rest, residue and remainder of my estate, real, personal and mixed, I give, devise and bequeath to my daughter Ann (so long as she shall remain unmarried), and my friends, William J. Duane and Joseph Patterson, and the survivors and survivor of them and the heirs and assigns of such survivor for ever, in trust, nevertheless, to grant, bargain, and sell the same at public or private sale, as they may deem most advantageous, and to invest the proceeds thereof in good and sufficient ground-rents or mortgages, and to receive the income and interest thereof, and to divide the said income and interest (including the income and interest of any stock or loan of the state of Pennsylvania, or of the corporation of the Kensington district, which I may hold at the time of my decease), into four equal shares or parts, and to pay one full and equal fourth part thereof unto each of my daughters, Ann, Martha and Mary, half-yearly, during all the time of their and each of their lives, for their sole and separate use, respectively, whether they be married or single, and without any control or supervision of any husband any of them may have, and without being in any way accountable for any debt or engagement of any husband any of them may have, and without being in any way accountable for any debt or engagement of any such husband, the receipt of each of my said daughters to be a sufficient discharge for such trustees; and as to the remaining fourth part of the said income and interest, in trust, to pay the same to my son-in-law, Philip Reilly, for the maintenance and education of the children of the said Philip and my late daughter Catherine, until the said children shall severally attain the age of twenty-one years; and as the said children shall severally attain that age, then, in trust, to pay the principal or capital sum on which such child had been receiving the income or interest, to such child for his or her own use, provided, that if any of the children of my daughter Catherine should die under the age of twenty-one years, leaving lawful issue, the share of such child shall descend to-and be enjoyed by such issue; but if any of the said children should die under age and without issue, then the share of such child shall go to and bp enjoyed by the survivors, in equal shares or proportions, and from and immediately after the death of either of my said daughters, in trust, to pay, assign, transfer, and set over the principal sum on which such daughter, so dying, was entitled-to receive the income or interest', to such person or persons, and for such uses, interests and purposes, as such daughter, by any last will or testament or instrument of writing in the nature of a last will or testament, notwithstanding her coverture, may direct, limit and appoint to' receive the same; and for want of any such last will and testament, then to pay the said principal sum to the child or children of such daughter, in equal shares or proportions; but if either of my said daughters shall die without leaving issue, and without any last will or testament, then it is my will and desire that the share or portion of such daughter shall be continued under the same trusts as are hereinbefore provided for the use and benefit of my surviving children, in equal proportions, in the same manner as hereinbefore,' directed as to the residue of my estate. Provided that if my daughter Mary should die, leaving her husband surviving, then it is my will, that the income and interest of her share shall be paid to her husband, James M. Smith, for the maintenance and support of his children, in the same way and manner as is provided for the children of my daughter Catherine Reilly.”</p> <p>Mr. Duane and Mr. Patterson were discharged as executors and trustees in July 1864, and Miss Martha Ryan and Mrs. M. Y. J. Smith were appointed im their stead as trustees with Miss Ann E. Ryan. These ladies having all died, Robert L. Reilly was appointed sole trustee March 6th 1877.</p> <p>Of the four parts or shares of the principal sum, the residue thus invested, one-fourth has been paid to the children of Mrs. Reilly absolutely, all of them having become of age. One other fourth part, representing the original share of Mrs. Smith, has been paid to her executors. The balance of this residue for distribution in the hands of the trustee, therefore represents the remaining two-fourths of the principal from one of which Miss Ann and Miss Martha Ryan each received the income as originally directed in the will, of their father. The distribution of Miss Ann Ryan’s share need not now be considered, as the controversy before the auditor turned entirely upon the distribution of Miss Martha Ryan’s share of the principal. The only reference in her will to this share and her power of appointment over it, is in the third clause, viz.: 8d. I give to my sister, Ann; all interest from- the estate of my late father, in tne same way that I have received it during her life.” It was generally conceded by the counsel, at least no argument to the contrary was ever suggested, and it is the opinion of the auditor, that this gave to Miss Ann Ryan only a life-interest in her sister’s share, and consequently, except to this extent, Miss Martha Ryan failed to exercise the power of appointment given to her by the will of her father. The proper award of this share therefore was the question presented for the auditor to decide. Upon this two points arose :</p> <p>1. To which of Lewis Ryan’s heirs or devisees should the whole amount bo awarded, and in what proportions ?</p> <p>2. How should these shares be awarded under the wills of Lewis Ryan’s daughters ?</p> <p>As. solutions of the first point three hypotheses were advanced:</p> <p>(1) Lewis Ryan died intestate as to this share, and it should be divided among the distributees entitled to take under the intestate laws as fixed at the time of Lewis Ryan’s death.</p> <p>(2) Upon Miss Martha Ryan’s death without children or a will disposing of the principal, the right to receive the income in equal proportions vested in Mrs. Smith and Miss Ann Ryan, subject to Miss Ann’s life interest, that therefore each was entitled to appoint one-half the principal by will.</p> <p>(8) Upon Miss Martha Ryan’s death the right to receive the income in equal proportions vested in Mrs. Smith, Miss Ann Ryan, and the children of Mrs. Reilly, and under the will of Lewis Ryan the share of Mrs. Reilly’s children should be paid to them absolutely.</p> <p>The argument in favor of hypothesis (1) as presented by Mr. Biddle in behalf of Mrs. Reilly’s children, is this: The words used to create this trust are in each case only applicable to a trust to dispose of the income, and there is no disposition of the principal upon the contingency of the first beneficiary not disposing of her share. The words arc “ to receive the income and interest thereof, and to divide the said income and interest” into four equal shares, and to pay one-fourth “thereof” to his daughters. In default of issue, and upon any of the daughters dying without any will, “ then the share or portion of such daughter shall be continued [under the same trusts as are hereinbefore provided] for the use and benefit of my surviving children, in equal proportions, in the same manner as hereinbefore directed as to the residue of my estate.”</p> <p>The auditor reported that the first hypothesis was practically abandoned, and then further reported : “ The two other hypotheses may be considered together. Hypothesis (2) is that upon the death of Martha without disposing of this principal, the right to dispose of it immediately rested in Miss Ann Ryan and Mrs. Smith, while hypothesis (3), while admitting that no intestacy exists, is to the effect that the trust is continued, not only for the benefit of Mrs. Smith and Miss Ann Ryan, but also for the children of Mrs. Reilly in equal proportions.</p> <p>“ On behalf of this view, as opposed to the other, it was argued, 1. That it is in accordance with the rule of law that the heir cannot be disinherited, but by plain and clear words to that effect, and the result of such a construction of this clause as will make the continuance of the trust only for the benefit of the surviving daughters of the testator to the exclusion of Mrs. Reilly’s children is practically to do this very thing. 2. That where any doubtful or ambiguous phraseology exists, the scheme of the whole will must be taken into consideration, and that, looking at this will as a whole, it is plain that the predominant thought in the testator’s mind was the division of his residuary estate into such shares' as would entitle all his children, and their representatives, to share alike, and have an equal portion of the residue; therefore upon the failure of any one of the beneficiaries to dispose of the principal when a re-division is ordered, it must be interpreted to mean a division upon the same principle, and with the same interest to each, relatively to the others, as was fixed upon the first division, unless the words plainly show a contrary intention. These two rules ought undoubtedly to govern if we find it impossible to discover the true intention from the word’s alone, or if standing alone they express a wish plainly at variance with the whole scope of the will, or even fairly doubtful. Now is this the ease ?</p> <p>“ The whole question must depend upon the construction to be placed upon the 4th clause, for there is nothing in the rest of the will which, in the opinion of the auditor, or apparently of that in any of the counsel, tends to explain it if any ambiguity does exist.</p> <p>“ By this clause the whole residuary estate is given to trustees to sell and invest, and to divide the income of the investments into four equal parts; to pay one-fourth to each of his three daughters then living, and one to his son-in-law, Philip Reilly, for the maintenance of the children of the deceased daughter Catherine, and to pay to each of such children, as they came of age, the principal on which he had been receiving interest. In the same sentence, the further trust is provided to transfer immediately upon the death of either daughter the principal sum on which such daughter was entitled to receive the income, as she should appoint by will, and on failure to appoint, to her children; but in case of no appointment and no children, then it was the testator’s will that the share or portion of such daughter should be continued under the same trusts as were thereinbefore provided for the use and benefit of his surviving children, in equal proportions, in the same manner as before directed as to the residue of his estate. To hold, as is claimed by the counsel for Mrs. Reilly’s children, that this direction means that they are to share in this second distribution of income equally with the testator’s surviving daughters, it is necessary to assume one of two things : either the trust for ‘surviving children’ referred to is taken to indicate a trust similar to that provided for his surviving children, in which all his heirs are to share equally, as directed in regard to the first division of the residue, and the kind of trust for the grandchildren be taken as included by the words referring only to the trust for the daughters; or else, if the term refers to the beneficiaries, as well as the kind of trust under which they are to take, grandchildren must be included under the term ‘ children.’</p> <p>“ If the trust for the daughters and that for the children of the deceased daughter rvere identical, it might be said that a reference to one would include the other, if merely used to indicate the kind of trust. But in one sense that which alone gives character to a trust, is really the duty devolving upon the trustee, and if these duties are different in trusts for two eestuis que trustent, the trusts can hardly be said to be identical in kind. Here the trust for Mrs. Reilly’s children was to pay the income to the father until each child should come of age, when a certain share of the principal would then be paid to that child, with no power of appointment or provision for remainder; while the trust for the daughters was limited upon the further trust to pay the principal as each daughter might direct, or to her children, and in default of both, to continue upon the same trust, as provided for his surviving children. Now, the word ‘ children’ being admittedly equivalent to daughters, it ought, if this argument be correct, to be possible to substitute the latter for the former, so that it would read, ‘upon the same trusts as are hereinbefore provided for the use and benefit of my surviving daughters.’ It appears to the auditor that this would fail to indicate the same kind of trust as that provided for the grandchildren. Or, again, if it be admitted that the trusts are so exactly alike that a reference to either will indicate the other, then the one term may be substituted for the other, without altering the meaning of the sentence, and we might read it thus, ‘ upon the same trusts as are hereinbefore provided for the use and benefit of my grandchildren;’ but it is very apparent that daughters could not claim a portion of the income from this new trust of this one-fourth or a power of appointment over any part of the principal, if such had been the language of the testator. The meaning would have been entirely intelligible had he simply said, ‘ upon the same trusts as are hereinbefore provided;’ if this was the intention, why should this limit be added, unless to distinguish between the trusts theretofore provided ? It is the opinion of the auditor, therefore, that, if taken merely as referring to the kind of trust, this term does not include the trust for the grandchildren ; and he is probably led to this conclusion the more readily, because he cannot but think that by this expression the testator intended specifically to point out the lenefieiaries, as well as to indicate the nature of the trust; perhaps it may not be improper to add, that the fact that upon the first argument no other view seems to have been taken by counsel, confirms his impression that this is the natural and obvious reading.</p> <p>“ If it does refer, then, to the beneficiaries, can the grandchildren be referred to under the term ‘ children ?’</p> <p>44 It was said by Gibson, C. J., in Dickinson v. Lee, 4 Watts 83, that4 where it is necessary to effectuate a manifest intent, grandchildren may undoubtedly take by the designation of children, though it is by no means the legal acceptation of the word. They are suffered to do so, principally, if not exclusively, in two cases: where the word is used evidently as co-extensive with issue, which is a, word of very general import; and where there are no children literally to answer the description, and then grandchildren are let in utres magis valeat quam pereat,’ or as was said by Rogers, J., in Hallowell v. Phipps, 2 Whart. 380 : 4 Their being included in that term is only permitted in two cases, viz-.: from necessity, which occurs when the .will would remain inoperative, unless the word children were extended beyond its natural import; and where the testator has clearly shown by other words, that he did not intend to use the word children in the proper actual meaning, but in a more extensive sense.’</p> <p>44 Neither of these reasons exists in the present case, and under the weight of this authority, which has not been disputed or even materially modified, such a change in the 4 actual meaning’ cannot be resorted to. See also Horwitz v. Norris, 13 Wright 217. No extraneous evidence was offered to show what was the natural wish or desire of the testator, and upon the face of the will there is nothing which renders the intention, as expressed by the auditor’s interpretation, unnatural or improbable. It might well be that the testator, having given to the children of his deceased daughter their mother's share of the estate absolutely, he should desire to retain the balance under the control of and for the benefit of the other daughters, even to the exclusion of the deceased daughter’s children, as was the case in Hough v. Hough, 4 Rawle 363.</p> <p>44 It was further argued that the term 4 residue’ is used in two places only ; and the testator having first disposed of the residue, so that all might share alike, when he again refers to the division of the residue, he intends that in this portion all should share alike, as in the’ general distribution of the residue. But the words cannot be regarded without their context, and if, as in the opinion of the auditor is the case, the testator had already said that the daughters were to share the income equally, the reference to the former distribution of the residue is merely for the purpose of additional explanation as to the manner of distribution; it would be absolutely impossible to divide in the same equal proportions, because originally there were four shares, and after the death of one of the beneficiaries, only three could be made, which of itself shows that the words are merely used as an explanatory reference, and not in their literal sense.</p> <p>“ The auditor is of the opinion on the first point of this case that hypothesis (2) is the correct statement of the testator’s intention and the interpretation of this will.</p> <p>“But here arises the question upon the second branch of this ease, vis.: how shall these shares be awarded under the wills of Lewis Ryan’s daughters ? more particularly in regard to the share belonging to Mrs. Smith’s estate. By her will Mrs. M. V. J. Smith directed as follows, after certain specific bequests : ‘All the rest and residue of my estate and all of the several estates and properties of my late father, Lewis Ryan, or my said late husband, and of any other person or persons, over, or in respect to which I have any power or authorities of gift, bequest, devise or appointment, by their several and respective last wills and testaments, or otherwise, in exercise and pursuance of such powers or authorities, and by force and virtue of the same, and of all and every power and authority me enabling and empowering, I do give, devise and bequeath to the Fidelity Trust and Safe Deposit Company, its successors, and my son, Clement J. Smith, and his heirs and assigns, in trust, to lease or invest the same, or the proceeds thereof, and keep the same leased and invested, and receive and collect the net income thereof, and semi-annually, on the first days of January and July in each year, to pay and divide the same to and among my sons and daughters then living, in equal shares equally, during their several and respective natural lives, and so that the same shall not be liable for, or subject to their several and respective debts, contracts or engagements, and upon and after their several and respective deaths to convey, assign and transfer the share of the principal of my said residuary estate, producing the income of the one so dying to such person or persons, and for such estates as he or she may by will have appointed, and in default of such appointment, to the person or persons that would take under him or her, if he or she had died intestate owning the same.’</p> <p>“ ‘ I give my said trustees power to sell any part of the real estate hereby devised to them to such person or persons, at such times, and in such portions as they may deem best, and to make good and sufficient deeds, conveyances and assurances to the purchaser or purchasers thereof, who shall not be bound to see to the application of the purchase-money, or responsible for any unfaithfulness or default of my said trustees. I appoint tbe said Fidelity Trust and Safe Deposit Company and my said son Clement J. Smith, executors of this, my will.’</p> <p>“Mr. Weil, representing the interests of several of Mrs. Smith’s children, who desire that whatever may be awarded them shall be given to them absolutely and not be encumbered with the trust, presented three reasons for holding the trust of this share of Mrs. Smith’s estate invalid. It was argued first that Mrs. Smith never had control over any part of this fund under her father’s will, that therefore it could not be included in this trust created in her own will out of the funds derived from' her father’s estate. The words of Lewis Ryan’s will are, that the trustees shall pay over to the appointees of the daughters ‘ the principal sum on which such daughter so dying was entitled to receive the income or interest.’ It was urged before the auditor that the execution of a power must be strictly construed, and that unless the exercise of it came clearly within the letter of the authority, it is void; that as a matter of fact Mrs. Smith never for one moment during her life was actually entitled to receive a dollar of the income derived from Miss Martha Ryan’s share, because Mrs. Smith had died before Miss Ann Ryan’s life estate in it had expired. ' The auditor does not think that this view can be sustained. It is in accord with the principles laid down in all of the cases, to hold, that upon the failure to appoint on the part of Martha the share subject to her power of appointment, went as directed under the will of Lewis Ryan, and that the rights thus acquired vested in interest immediately upon the happening of the contingency contemplated by his will, i. e., the death of Martha without an appointment and without children. In Bristow v. Skirrow, L. R. 10 Eq. 1, 0. bequeathed a household estate after his wife’s death in default of her appointment to his next of kin living at the death of the survivor of himself and his wife. She only gave a life-interest in it to T., and it was held that it vested in the next of kin of the testator living at the death of the wife, subject to the life-interest of T. The same state of facts exists in the present ease, and the two surviving daughters were entitled upon the death of Martha to receive each one-half of the income derived from this share, in accordance with the will of the testator, subject to Miss Ann Ryan’s life interest. There is nothing in the will, it must be observed, which limits the exercise of the power of appointment to that part of the principal, the income from which the daughter was entitled to receive, and which she actually did receive during her. lifetime; it is simply a general right to dispose of all that from which she was entitled to receive the income, whether in the present or the future, so long as the right was an actual vested right and not a mere contingent remainder. This question is really one of great importance to the heirs, for unless the children of Mrs. Smith claim under her appointment they must seek a title through some other source. It is however unnecessary to discuss this question further, for the auditor is of the opinion that Mrs. Smith had the right to exercise her power of appointment over one-half of this share.</p> <p>“ 2. It was argued that the trust created by Mrs. Smith’s will of this estate is void, as infringing the law against perpetuities. It will be remembered that in the statement of facts agreed upon, it is noticed that all of Mrs. Smith’s children were living at the death of Lewis Ryan.</p> <p>‘‘In argument the counsel for the cestuis que trustent callep attention to the rule of construction, that whenever a limitation may be void, the law will so consider it: 1 Jarman on Wills 233; Williams on Real Property *263 ; but the cases supporting the rule so slated are all of them cases in which the rule might be infringed by reason of some state of facts which might exist, and in that case the devise is void, notwithstanding the possibility of the now-existence of the state of facts, e. g.: ‘ If the devise or bequest be in favor of an unborn person, who may not answer the. required description within a life and twenty-one years, it will be void, although a person should happen to answer the description within such period.’ In this case the rule was attempted to be applied, because of the possibility that the children, with whom was lodged a power of appointment under this will, might improperly exercise it; but it is clear that it is not- the possibility of a voluntary violation of a rule of law which renders a devise void, but the possibility that without the violation of any one, there may exist a state of facts which would render the trust void. Otherwise, the rule might be applied to every case in which dominion over property is given to the devisee. Ilad the testatrix given this power of appointment to children not in esse at the time of the death of the original testator, then it would undoubtedly be a void execution of the power: Wollaston v. King, 8 Eq. 165. Not so, however, if, as was expressly admitted, all of the donees of the powers under Mrs. Smith’s will were alive at the time of the original testator’s death: Farwell on Powers 227, 257; Sugden on Powers 492; Phipson v. Turner, 9 Sim. 227; Slack v. Dakyns, L. R. 15 Eq. 307. In the last cited case, a testator gave certain property upon trust for his granddaughter for life, and after her death to such of her children as she should appoint. She appointed to each of five children (all of whom were living at the death of the original testator), and ‘after the death of each child, directed that the share in which the child had a life-interest should be held in such manner as the child might by will appoint, with limitations over, in default of appointment, in favor of the children of said five children : * * Held a good exercise of the power of appointment given by the will of the testator.’ The same principle certainly controls this case.”</p> <p>The auditor made a scheme of distribution in accordance with the views expressed in this report. To this report, the following, among other exceptions, were filed by the appellants:</p> <p>1. The auditor erred in awarding three-fourths of the residuary estate to the legatees under the will of Ann Ryan.</p> <p>2. In awarding one-fourth of the residuary estate to the trustees under the will of Mary V. J. Smith.</p> <p>4. In not awarding two-thirds of the balance of the residuary estate to the distributees under the will of Ann E. Ryan ; one-sixth thereof to the trustees under the will of Mary Y. J. Smith, and one-sixth to the children of Mrs. Catherine Reilly.</p> <p>6. The auditor erred in his conclusion of law, that the share of the estate from which Martha Ryan received the income, was to be distributed, one-half in accordance with the will of Ann E. Ryan and one-half in accordance of the will of Mary Y. J. Smith.</p> <p>7. The auditor erred in not awarding to the children of Catherine Reilly one-third of the principal from which Martha Ryan received the income.1</p> <p>The court dismissed the exceptions and confirmed the report, and from this decree this appeal was taken.</p>

<p>It. died in June 1850. By his will, executed in February 1848, he devised the residue of his estate to trustees, who were directed to divide and pay one-fourth of the income for life to each of his three living daughters, for their sole and separate use, and after the death of his daughters, in trust to transfer the principal on which such daughter so dying was entitled to receive the income to such persons and for such uses, intents and purposes as she might appoint, and in default of appointment to her child or children, and in default of child, to be continued under the same trust for the use and benefit of the testator’s surviving children. Mary, one of the daughters of R., died in April 1876. By her will, made in March 1876, she gave all her estate, the estate derived from her husband and the estate derived from R., to trustees to pay and divide the income among her sons and daughters for life, without liability for their debts, and upon their deaths to transfer the principal to suclq persons and for such estates as they might by will limit and appoint, and in default of appointment, to the person or persons that would take under them if they had died intestate owning the same. The donees of Mary were all living at the time of the death of R. Held, that the appointment by Mary, under the power contained in her'father’s will, was transgressive of the rule against perpetuities and was wholly void, and that her share of the estate must be distributed under the' clause in her father's will, which provides that for want of a will on the part of Mary her share of said principal sum shall be paid to her children in equal shares or proportions.</p>

<p>1. Upon a motion for a nonsuit the plaintiff is entitled to every inference of fact which the jury might draw from the evidence, the defendant being considered as admitting every fact which the evidence tends to prove.</p> <p>2. Retention of possession by a former owner of a chattel sold at sheriff's sale is not an index of fraud, nor does leaving the property with the former owner warrant the inference that the purchaser made an absolute gift or sale of it to him, so as to authorize its seizure again as the property of the debtor.</p> <p>3. The meaning of words used in a conversation are for the jury and not for the court.</p>

<p>A bill in equity alleged that A., who was a citizen of Georgia, devised certa,in property in trust, to B., C. and D., or the survivor of them, their executors. administrators or assigns, and that said trustees invested a certain portion of said property in the stock of the L. C. & N. Go. The bill further alleged that said trustees were all dead, and that the complainants, who were citizens of New Jersey, were the executors of the will of the survivor of said trustees, and that by virtue of the will of A. and the laws of Georgia, they were the successors in the trust, and they therefore prayed that the stock should be transferred to them and that they should receive the dividends aeccrued thereon. The answer of the company admitted the facts as set forth, and averred a willingness to transfer the stock; but asked that the cestuis que trustent should he made parties to the bill, and that for greater certainty, copies of the wills and of the letters testamentary to the executors should be filed. The court below without the production of these documents, made a decree directing a transfer of the stock and the payment of the dividends. Held, that this was error; that before such a decree could be made notice to the cestuis que trustent and the production of the papers asked for were necessary.</p>

<p>Where the members of a church corporation brought a suit for its benefit, though not in its name, against its trustees, it cannot, after it has accepted and enjoyed the benefit of a decree in its favor, say that the proceeding was not prosecuted in its behalf, and bring a suit in its own name to compel an account and allege that it was not bound by such portions of the decree as were unfavorable to it.</p>

<p>Certiorari to the Court of Quarter Sessions of Philadelphia comity: Of January Term 1879, No. 50.</p> <p>This writ was taken by the City of Philadelphia to the issuing of a writ of mandamus to the treasurer of said city, in favor of John Taylor, to the use of William Slater, for the payment of damages awarded to Taylor in the opening of Sedgeley avenue.</p> <p>The proceedings were as follows: The petition of John Taylor, to the use of William Slater, sets forth that the jury appointed to assess the damages to property owners by the opening of Sedgeley avenue, by the report confirmed March 13th 1875, awarded the sum of $800 to two lots of ground marked on the plan annexed to said report in the name of John Taylor; that said Taylor is not and never has been the owner of one of said lots, the title to which was in William Slater ; that said Taylor has not received the $400 damages awarded to said lot, and disclaims any right to take the same, and that said amount remains unpaid by the city; and that petitioner was willing to take said sum as damages as the owner of said lot. The petition then prayed that the $400 awarded by said report to Taylor, with interest from the date of the confirmation of the report, should be paid to petitioner as the owner of the lot. On the 28th of September 1878, Taylor filed, a petition, to the use of Slater, for a writ of mandamus execution. On October 24th 1878, the court granted a rule upon the city to show cause why a mandamus execution should not issue, and on November 2d 1878,. this rule was made absolute. A writ of mandamus execution then issued to Taylor, for the use of Slater, for $400 and interest; when the city took this writ, and assigned this action for error.</p>

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1878, No. 100.</p> <p>Assumpsit by Charles E. Blummer against Lingg & Bro., on a promissory note drawn to the order of Joseph E. Stokes, and by him endorsed. One of the defendants filed an affidavit of defence which averred that the note in suit was given by defendants to Elliott, a note-broker, with instructions to sell the same and pay over the proceeds to defendants; that at the time Elliott received said noto Stokes endorsed it for defendant’s accommodation; that Elliott alleged said Stokes was indebted to him, and assumed to hold said note for such indebtedness, and refused to return the same or pay over the proceeds thereof; that defendants never assumed said alleged indebtedness of Stokes to Elliott, aud are in no way liable therefor. The affidavit further averred “ that deponent is informed and believes that plaintiff is not the owner of said note; that plaintiff has informed said Stokes that he did not buy said note with his money, and deponent is informed and believes that suit is brought by plaintiff in his name to prevent defendant from defeating the payment of said note in the hands of said Elliott. All of which he expects to bo able to prove at the trial of the cause.” The court entered judgment for want of a sufficient affidavit of defence, when defendants took this writ and assigned this action for error.</p>

<p>1. While negligence cannot be imputed to a child of the age of six years and nine months, nevertheless it may be assumed that a child old enough to be trusted to run at large, has discretion enough to avoid ordinary danger, and that persons who have business on the street may reasonably conclude that they are not to provide against possible damages that may result to such child by his own wilful trespass.</p> <p>2. Where a child of such an age was injured by a street car, not from any defect in the car, nor any neglect in its management, but from the sudden and unexpected act of the child in attempting to mount the front platform of the car while the-driver who was also conductor was on the rear platform and could not have foreseen or guarded against the act, the railroad company is not. responsible therefor.</p> <p>3. Under such circumstances there was' prima facie no negligence in the want of a fender on the front of the car and the absence of the driver from the front platform.</p>